Judge Beetem, Cole County Presiding Judge Holds That the Attorney General’s Office Knowingly And Purposefully Violated The Sunshine Law While Josh Hawley Was Attorney General Levying a $12,000 Civil Penalty – The Maximum Under Law
Facts and Procedure: Josh Hawley, was Attorney General and a candidate for U. S. Senate in October of 2017. Daniel Hartman, an attorney in the Attorney General’s office (AGO) was the designated custodian of records for the AGO. He was familiar with thousands of public record requests. All public records for the AGO were required to be retained and provided to Hartman, the designated custody of records. AGO employees were prohibited from keeping office records on private accounts.
On September 17, 2017, the Democratic Senatorial Campaign Committee (DSCC) made a public records request for several categories of records under the Sunshine Law, which included a request for all records related to OnMessage Inc. Hartman, had on his computer correspondence with OnMessage, but responded to the request that he did not have any such records. On March 13, 2018, a second records request was made by the DSCC. The AGO and Hartman had records that were responsive to this request within days after the request, but failed to respond to the records request, other than stating on several occasions that it was still searching its records, even though it had already located the records. This lawsuit was subsequently filed and in response to a discovery in the lawsuit, a year and a half after the record requests were made, the AGO finally disclosed records that it had not previously disclosed.
The DSCC filed a motion for summary judgment, which the trial court granted, based on agreed to material facts, entering a judgment that concluded the AGO “knowingly and purposefully” violated the Sunshine Law and fining the AGO $12,000, the maximum amount allowed under the Act.
Analysis – First, the AGO office argued that the production of the documents mooted the case, which argument was soundly rejected by the court. After all, the DSCC was also seeking other relief in this case, which included civil penalties, court costs, fees and attorney fees, all of which remained; therefore, the case was not mooted by the production of the documents as a result of production of the documents that were the direct result of discovery in this lawsuit.
In addition, the AGO offered cursory explanations as to why it had reasonable cause for not producing the records because it was still searching for the documents. The court knocked this argument down because basically it was not true, since the AGO had the records in hand literally on day one with respect to the September request, because they were on Hartman’s server. With respect to the March request, the AGO had found the document within days after the March request, but never disclosed this until discovery in this litigation, a year and one half later.
The AGO also argued that its failure to produce fell within the litigation exception due to another ongoing litigation matter. This argument failed because the AGO belatedly made this argument having never asserted this argument until suggestions were filed in support of the motion for summary judgment. Furthermore, there was no nexus between this case and the alleged related litigation. In addition, the AGO argued that some of the documents were stored off site on private servers, therefore they were not retained by the custodian of records. The language of the Sunshine Law plainly refuted this argument, since it makes no distinction between on-site and off-site storage. The obligation of the custodian of records covered all records where ever they are stored. Judge Beetem found that employees in the attorney general’s office used private email accounts in violation of AGO policies to discuss public matters, and then tried to excuse themselves from producing those records by claiming they were not in the attorney general’s office’s custody.
Judge Beetem wrote:
“[T]he fact that this public business was conducted through and stored on private email accounts — in direct contravention of the AGO’s official policies prohibiting AGO employees from conducting public business on private emails … — is itself evidence of ‘a conscious design, intent, or plan’ to conceal these controversial records from public view,’”
The court concluded that the conduct by the AGO was knowingly and purposeful, since Hartman had at all times documents in his personal email with respect to the first request, and by failing to disclose documents it subsequently discovered in a timely manner. Judge Beetem wrote:
“[T]he fact that this public business was conducted through and stored on private email accounts — in direct contravention of the AGO’s official policies prohibiting AGO employees from conducting public business on private emails … — is itself evidence of ‘a conscious design, intent, or plan’ to conceal these controversial records from public view,’”
Conscious design was further shown by the fact that employees of the AGO automatically switched from keeping documents on the AG server to their personal emails when corresponding with candidate Hawley and by the interrelationship of Hartman’s direct involvement in the Hawley’s political campaign for U. S. Senate.
The Judgment awarded civil penalties, attorney fees and costs to the DSCC. DSCC a/k/a Democratic Senatorial Campaign Committee v. Office of the Attorney General, Cole County Case No. 19AC-CC00119.
Comment Howard: In my 56 years of law practice, I have not seen a more egregious violation of the law by the public officials like this case. This case is not only about the Sunshine Law but the deliberate actions of public officials in violating Missouri rules pertaining to ethical conduct governing conduct of lawyers before tribunals.
Hartman, as custodian of the records, violated his obligation as an attorney under Missouri rules of ethics governing attorney conduct by deliberately misrepresenting to the court the facts with respect to the documents that the AGO had in its procession some of which were on Hartman’s personal.
Rule 4-3.3(a) (1) and (3) and (b) require candor toward a tribunal and in material part prohibit:
RULE 4-3.3: CANDOR TOWARD THE TRIBUNAL
“(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
One has to hope that the ethical violations will be further addressed in other proceedings and the rule of law restored. Stay tuned as there will likely be an appeal of this matter but that gets mixed up with the constant turn over of the Attorney General. On the other hand, I am not sure it is in Senator Hawley’s and Hartman’s interest to further litigate this matter since a Court of Appeals opinion affirming the Judgment will further highlight the actions of the former AG and now Senator.
In Case Of First Impression Western District Holds That The Sunshine Law Allows For Fees To Collect The Fees
Facts and Procedure: The Missouri Office of Administration (OA) suspended payroll deduction for an employee group arguing that employee deductions did not meet the regulatory requirements for dues deductions because (1) it could not deduct dues as a labor union since it had no existing labor agreement; (2) it could not deduct dues as an employee association because it was not a group of state employees; and (3) it could not deduct dues as an employee association because labor unions cannot also be an employee association.
Analysis – The Western District held, in a case of first impression, that the Sunshine Law allows for recovery of attorney fees for seeking fees. Integra argued that the Sunshine Law violations were inextricably intertwined with the other counts of the First Amended Petition. Integra contended that the attorney’s fees awarded were incurred to support all of the lawsuit claims and were so intertwined that they could not be separated out. The Western District held that: “The words of the statute are clear: “all costs and reasonable attorney fees” are recoverable by a party successfully establishing a violation of the Sunshine Law. The language of the statute imposes no limitation on the recovery of attorney’s fees, including attorney’s fees necessary to obtain an award of such reasonable attorney’s fees. Furthermore, the public policy of the state is “that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law.” “[R]efusing to award attorney’s fees for the time spent in obtaining attorney’s fees . . . would thwart the purpose of the [Sunshine Law].”
In addition, the Western District held that strict scrutiny applied to review of state Rules because the right to bargain collectively involved the fundamental right under the Missouri Constitution. Applying strict scrutiny, the Western District held that the State Rules were not narrowly tailored and were therefore, unconstitutional. The State further argued that the right to bargain collectively was separate from the right to organize, which argument was soundly rejected by the Court. Missouri Officers Association v. Missouri Office of Administration, (WD84917, 12/06/22).
Comment Howard: Since the appellate courts almost always defer to the trial courts determination as to what constitutes fair and reasonable attorney fees further appeal of the attorney fees ruling seems to be senseless. The big kahuna in this case, is that strict scrutiny applies to actions that affect the right to bargain collectively, which includes the right to organize.
Simple Interest Applies To Penalties For Delayed Payment
Simple interest, not compound interest, applies to penalty for delayed construction payments under the Prompt Pay Act. Penzel Construction v. Jackson R-2 School District, (ED110487, 11/08/22).
DOE Office Of Science Adds Diversity, Equity And Inclusion Requirement To Solicitation Process
Husch Blackwell reports that the Department of Energy (DOE) through the Office of Science (SC) announced that beginning in FY 2023, all DOE funding solicitations, including the Office of Science Funding Opportunity Announcements (FOAs) and DOE National Lab Announcements, will require applicants to submit as an appendix to proposal narratives, a “Promoting Inclusive and Equitable Research (PIER) Plan.” The purpose of the PIER Plan is to “describe the activities and strategies applicants will incorporate to promote diversity, equity, inclusion and accessibility in their research projects.” For more information click here.
Official Immunity Applies To Officer Involved In Accident While Giving Chase To Speeding Car
Missouri State Highway Patrol Trooper (Trooper) was patrolling an eastbound section of Highway P in Pomona, Missouri, around 9:25 p.m. when a white truck passed Trooper Barron, traveling at approximately 99 miles per hour. Deciding to apprehend the vehicle, Trooper Barron began a pursuit of the truck. While pursuing the truck, Trooper Barron determined that, because of the truck’s increasing speed, the hilly terrain, the time of day, and upcoming service roads, Trooper Barron should close the distance between herself and the truck before engaging her emergency lights and sirens. While following the truck without her emergency lights and sirens engaged, Trooper Barron crested a hill near an intersection. At the same time, Justin Osborn, in a different vehicle, pulled out into the intersection to make a lawful turn onto Highway P. Trooper Barron, seeing Osborn’s vehicle, applied her brakes to slow down and attempted to swerve past Osborn’s vehicle, but could not avoid Osborn’s vehicle and the two vehicles collided.
Osborn filed a two-count petition in the Howell County circuit court, alleging negligence claims against Trooper Barron in her individual capacity. Trooper Barron filed her answer, pleading the affirmative defense of official immunity and immunity because of the public duty doctrine. Osborn filed a motion for partial summary judgment, arguing Trooper Barron was not entitled to official immunity or immunity because of the public duty doctrine. The circuit court concluded Trooper Barron could not raise the affirmative defense of official immunity, and the public duty doctrine did not apply because Trooper Barron’s acts were not discretionary because she was not in pursuit and she was not responding to an emergency.
Trooper sought a writ of prohibition in the Missouri Supreme Court arguing that she was protected by the doctrine of Official Immunity. The Court agreed.
“At issue here is the doctrine of official immunity, which this Court has long held protects a public official from liability if that official acts within the course of his official duties and without malice. The purpose of this doctrine is to allow public officials to make judgments affecting the public safety and welfare without the fear of personal liability. This is because, if an officer is to be put in fear of financial loss at every exercise of his official functions, …. the interest of the public will inevitably suffer . . . .”
This doctrine is put forth in order to encourage vigorous enforcement of the law knowing that public officials may operate with imperfect information. In this case the facts showed that the Trooper made a decision to not turn on her lights or siren. This action did fall within the exception for performing a ministerial duty, which have long been defined as merely clerical.
“The decisions Trooper Barron made when attempting to overtake the truck could have been made in various different ways and were subject to Trooper Barron’s discretion. This included the discretion over Trooper Barron’s vehicle’s speed, discretion over her vehicle’s emergency lights, and discretion over her vehicle’s emergency sirens.”
Barron v. Beiger, (SC99625, 12/06/22)
Prima Facie Challenge To St. Louis County Wanted System Fails Because There Were Circumstances Where It Could Survive Constitutional Challenge
Facts and Procedure:
- The Wanteds System
The St. Louis County Police Department (“SLCPD”) in Missouri utilizes what it calls a “Wanteds System.” This system allows officers to issue electronic notices (“Wanteds”) authorizing any other officer to seize a person and take him into custody for questioning without any review by a neutral magistrate before issuance of the Wanted. The Wanteds may pend for days, months, or, in some cases, indefinitely.
While Wanteds have the practical impact of authorizing the seizure, arrest, and custodial interrogation of a person at a remote location, they are not arrest warrants. According to documents from the St. Louis County Police Department (“SLCPD”), a Wanted is a law enforcement officer’s system-wide notice that the subject is wanted for questioning by an officer, although no warrant is associated with the subject’s record. The SLCPD defines a “warrant” as a judicially signed “official Court Order requesting the person be presented in court.”
To issue a Wanted, an SLCPD officer, without any judicial oversight, concludes that probable cause exists to believe that the subject “has committed a crime.” Armed with this independent conclusion, the officer notifies a computer clerk (known as a “CARE operator”), who enters the Wanted in the Regional Justice Information System (“REJIS”) database. To have the Wanted entered into the system, the SLCPD officer need only identify the target’s name, physical descriptors, personal data, address, charges being investigated, and the issuing officer’s name and contact information. If all is in order, the Wanted is entered into the REJIS database. The CARE operator is wholly without information to assess the existence of probable cause to issue the Wanted.
On September 14, 2016, while this lawsuit was pending, the SLCPD added a new requirement that a supervising SLCPD officer must approve the Wanted before it may be entered into the system. The policy states that the supervising officer or his designee must review the facts supporting the initial officer’s determination of probable cause. The Wanted displayed to and reviewed by the arresting officer does not include an affidavit or a statement setting forth the issuing officer’s observations, inferences, and conclusions that supported his independent probable cause determination. Once the Wanted is entered into the REJIS database, it is available to most law enforcement agencies in St. Louis County and the surrounding counties in Missouri and Illinois. If the identified charge is a felony, the Wanted may also be available nationally through the National Crime Information Center (“NCIC”) database as a “Temporary Wanted.” Temporary Wanteds entered into the NCIC system or Missouri’s Uniform Law Enforcement System automatically expire after 48 hour
A Wanted in the REJIS database may be active anywhere from six months to indefinitely. Wanteds for misdemeanants remain active for a year, although the Wanted will be removed if (1) the suspect is arrested; (2) the statute of limitations is less than one year; or (3) the Wanted is cancelled. Suspects of non-Class A felonies may have an active Wanted outstanding for up to three years unless (1) the target is arrested; (2) the statute of limitations runs; or (3) the Wanted is cancelled. Wanteds for Class A suspected felons remain active in the REJIS database until they are removed by the agency or the suspect is arrested. Under the existing system, no process exists to quash or challenge a Wanted even though Wanteds may remain active for years.
The Individual Plaintiffs
Dwayne Furlow – On January 25, 2016, SLCPD Officer Kevin Walsh responded to a 911 call at Furlow’s home for a suspected domestic assault. Furlow was not present when Officer Walsh arrived. Officer Walsh found Latoya Furlow (Furlow’s wife), who claimed she had been assaulted by Furlow. Officer Walsh’s report included Latoya’s claims that Furlow knocked her to the ground, dragged her by the hair, and then drove away as she was calling the police. Officer Walsh perceived Latoya to be angry, nervous, and fearful, but did not note in his report any bruising or evidence of other physical harm on Latoya.
Meanwhile, Officer Partin searched the residence for Furlow. While in the residence, he observed a fully-loaded AR-15 in plain view. Latoya claimed she owned the rifle, explaining that she had purchased it because Furlow was on probation. When Officer Walsh spoke to Furlow on the phone and told him about the investigation, Furlow reportedly informed Officer Walsh that he would not turn himself in for fear of being incarcerated. Officer Walsh advised Furlow that he would issue a Wanted for domestic assault in the third degree and domestic peace disturbance. Officer Walsh then entered the Wanted. The next day, Latoya called Officer Walsh and recanted her statements. Officer Walsh asked her to come to the precinct to give a written statement, but she never showed up to retract her statement.
On January 28, 2016, Furlow was stopped for a traffic violation and was ultimately arrested on the outstanding Wanted. Furlow was held for 24 hours and 28 minutes despite SLCPD’s policy of holding suspects of domestic violence for no more than 24 hours. No warrant was ever issued.
Ralph Torres – On December 16, 2014, Detective Laura Clements of the SLCPD Child Abuse Unit began an investigation into Ralph Torres. Torres’ ex-wife had previously filed a report with the Department of Social Services-Children’s Division (“DSS”) reporting that Torres had sexually abused his minor daughter. While DSS was continuing its investigation of Torres, Detective Clements conducted a parallel investigation unsuccessfully attempting to speak with Torres who directed Detective Clements to talk to his attorney. When efforts to contact Torres’ attorney proved unsuccessful, Detective Clements issued a Wanted for Torres on February 23, 2015, more than two months after the first complaint. On March 30, 2015, DSS completed its investigation, which was closed based on a finding of insufficient evidence. A state court later found that the allegations were fabricated by the child’s mother. Detective Clements was unaware that the investigation had concluded, so Torres’ Wanted remained active.
On April 1, 2015, SLCPD Officer Scott Leible was on patrol in the vicinity of Torres’ house and discovered Torres’ outstanding Wanted. Officer Leible arrested Torres at his house. There is no evidence that Torres was involved in criminal activity at the time of arrest or that Officer Leible had any evidence that would support a finding of probable cause. Torres was detained and held for questioning. When Detective Clements came on duty later that afternoon he attempted to speak with Torres, but Torres invoked his Fifth Amendment rights to remain silent and to obtain counsel. The next morning, Detective Clements asked the PAO for approval to file a warrant application. The PAO denied the request. Torres was released after being held in custody between 24 and 25 hours. At no time during Torres’ detention did Detective Clements contact DSS. No warrant was ever issued authorizing Torres’ arrest or detention.
On February 24, 2016, Furlow commenced this putative class action under 42 U.S.C. § 1983 on behalf of himself and all others similarly situated. Furlow’s First Amended Class Action Complaint added Torres and Howard Liner as individual plaintiffs and putative class representatives. The operative complaint alleges that SLCPD Chief of Police Jon Belmar, in his official capacity, the County of St. Louis, Missouri, and Officer Christopher Partin, Officer Kevin Walsh, and Detective Laura Clements, in their individual capacities, violated the plaintiffs’ Fourth, Fifth, and Fourteenth Amendment rights. The defendants (collectively, the “Officers”) moved for summary judgment and Furlow and Torres cross-moved for partial summary judgment. The district court granted the Officers’ motion, denied the plaintiffs’ motions, and denied the plaintiffs’ motion for class certification. Furlow and Torres appealed to the Eastern District.
Analysis:
Facial Challenge – The Plaintiff’s challenged the Wanted system on it face violated the Fourth Amendment because it permitted unreasonable search and seizures without a neutral judicial officer to assess whether the police have probable cause to make an arrest. The Officers acknowledged that Wanteds are not warrants or supported by judicial process. As such, Wanteds must fall within an exception to the warrant requirement in order to survive judicial scrutiny under the Constitution.
The Officers contended because Wanteds are only entered when the issuing officer determines that probable cause to arrest exists, they are constitutionally reasonable. The Officers assert that one officer’s determination of probable cause is all that is necessary to make a warrantless arrest by any law enforcement officer, consistent with the Constitution. The 8th Circuit reasoned, that the Wanted System did not meet the test for the collective knowledge doctrine, because it routinely imputes a single officer’s finding of probable cause to officers potentially anywhere in the country—without any showing of a joint investigation, which by case law are limited to situations where multiple officers are involved in an investigation” and “as long as there is some degree of communication” among the officers. The 8th Circuit held that Wanted System cannot be saved under the collective knowledge doctrine. Nevertheless, since the Plaintiffs challenged the law as on its face as being invalid and the Court could not say that in all circumstances the Wanted System was invalid; therefore, the 8th Circuit remanded to the district court for further disposition.
Qualified Immunity:
Dwayne Furlow – With respect to claim of Furlow the Officers were entitled to qualified immunity because there was no case law that held their actions under the Wanted System were unconstitutional; therefore, they were entitled to qualified immunity. Not so with Detective Clements’ because the Torres’ case later evolved and by the time Torres was seized pursuant to the Wanted, Detective Clements should have known that probable cause had evaporated. While the Wanted was pending, Detective Clements did not make herself aware of the investigation’s development.
Municipal Liability – Furlow and Torres also contended the district court erred when it dismissed their claim that St. Louis County and Chief Belmar (acting in his official capacity) were liable for employing the SLCPD Wanteds System. When a public employee is sued in his official capacity, the plaintiff is suing “only the public employer and therefore must establish the municipality’s liability for the alleged conduct.
To make the governmental entity liable for the employee’s wrongdoing under 42 U.S.C. § 1983, a plaintiff needs to prove his or her “constitutional rights were violated by an action pursuant to official municipal policy or misconduct so pervasive among non-policymaking employees of the municipality as to constitute a ‘custom or usage’ with the force of law.” “[A] municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Comment Howard: I am not sure how many other jurisdictions use a Wanted System. I suspect there are others so you may want to check with your local jurisdiction to see if it or a variation of it is being used. I suspect St. Louis County will be making changes to their system so that might serve as a model.
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