Josh Hawley Violated Missouri Sunshine Law When He Failed To Disclose Private Records About Government Business Which Are Open Under the Sunshine Law

The June 30, 2023, Edition of Missouri Lawyers Weekly, reported that Senator Josh Hawley, deception in not producing document intentionally violated the Missouri Sunshine Law, even though the documents that were not produced were private email accounts. The State was fined the maximum amount allowed under law.   In addition, the Attorney General was ordered to pay $242,000 in legal fees to the party bringing the lawsuit.

The court noted: “In one instance, the Attorney General’s Office found responsive records three days after receiving the Democratic request but did not release the documents until forced to as part of the lawsuit more than a year later.”

Cole County, Circuit Court Judge Beetem, wrote in his opinion, “The decision to withhold documents response to the DSCC’s Sunshine requests was made by public officials who had personal and professional stakes in the documents not being released and in the success of then-candidate Hawley’s campaign,” Office staffers would switch to private email accounts to message political consultants.   The Court found that all records are open to the public even if public officials use private accounts.

“The judge said the then-records correspondent, Danie Hartman, has the records and knew his responsibilities under the law but told the Democrats the office had none of the requested records.” Beetem wrote: “By failing to produce the requested records, Mr. Hartman and the AGO prevented an opposing party committee from accessing documents potentially damaging to then Attorney General Hawley’s political campaign,”

Comment Howard: There needs to be some personal accountability. It would be nice if there was legislation to make persons who deliberately violate the Sunshine law personally liable.

Comment Ragan: This matter is a good example of the need for change.  What would that change look like is hard to say?  Obviously intent, personal gain, motive are issues to be considered when making changes.  What is happening is not an accident and there exists no personal accountability measure.

Lawyers Are Gatekeepers For Documents Submitted To The Court, Attorney Fined $5,000 For Filing Bogus Case Law Created By ChatGPT

The June 30, 2023, Edition of Missouri Lawyers Weekly, reported that lawyers were fined $5,000 for filing bogus case law with a New York federal district court that contained bogus citations, that did not exist. The article explained that existing rules impose on lawyers’ a gatekeeping role to ensure the accuracy of their filings. The judge said the lawyers and their firm, … “abandoned their responsibilities when they submitted non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence into question. ”At a hearing earlier this month, Schwartz said he used the artificial intelligence-powered chatbot to help him find legal precedents supporting a client’s case against the Colombian airline Avianca for an injury incurred on a 2019 flight.”

Comment Howard: Why did the lawyers keep digging when they should have realized how deep the grave was already? Seems to me like, they have totally destroyed their credibility before the court by continuing to dig instead of manning up. I have always checked my cites and my opponents. I love it, when my opponent cites a case that has been overruled. That is the time to drive down your opponent’s credibility.

Attorney General Fails To Perform Ministerial Duty To Certify Ballot Initiative Protecting The Right Of Reproductive Care

Facts and Procedure: In March 2023, Fitz-James submitted 11 proposed initiative petitions to the Secretary of State. The Secretary posted the text of the initiatives on his website, as he was required to do by Section 116.332, and sent a copy of each proposed petition to the Attorney General and the Auditor. The Attorney General, pursuant to Section 116.332.3, approved the form of the proposed petitions and notified the Secretary, who agreed and notified Fitz-James of this approval as required by Section 116.332.4. Upon receiving the proposed petitions from the Secretary, the Auditor solicited input from 60 state and local governmental entities regarding estimated costs or savings, if any, of each proposed initiative. In addition, to these solicited submissions, the Auditor accepted and recorded unsolicited responses received from any other governmental entity, proponents, opponents, and members of the public. The Department of Social Services, Department of Mental Health, and Department of Health and Senior Services indicated they anticipated no fiscal impact, other than unknown impact related to federal regulations.

No other state department, nor the Attorney General, provided a response indicating any of the initiatives would jeopardize the state’s federal Medicaid funding. The only county to report an anticipated fiscal impact was Greene County, which estimated a $51,000 fiscal loss. All other responsive counties reported no anticipated fiscal impact. Opponents of the initiatives indicated they believed the initiatives could risk the state’s federal Medicaid funding and result in reduced tax revenues costing the State trillions of dollars. The Auditor then created a fiscal note, indicating a minimal impact and, on March 29, sent these documents to the Attorney General as required by Section 116.175.2. The Attorney General then had 10 days to approve the “legal content and form” of the fiscal note summaries and notify the Auditor of that approval. If the fiscal note summary was defective in either form or legal content, the Attorney General was to return the documents to the Auditor for revision.

On April 10, the Attorney General notified the Auditor that he believed the “legal content” of each fiscal note and summary was deficient and returned the notes and summaries to the Auditor. The Attorney General stated the fiscal notes were deficient because they contained “inadequate and divergent submissions” from government entities regarding the fiscal impact of the proposed initiatives. The Attorney General also noted that he believed the fiscal note summaries were deficient because they: (1) did not accurately represent the true cost of the proposed measures to local and state government entities (because the fiscal notes did not do so), and (2) failed to adequately summarize the submissions the Auditor received regarding the potential.

The Court noted that because of this logjam, the Secretary could not – and, to this day, cannot – complete his duty by certifying the official ballot titles for the proposed petitions. The ballot title is comprised of two parts: a “summary statement” and the fiscal note summary. § 116.180.  Pursuant to Section 116.334.1, the Secretary prepared a “summary statement” for each of the proposed petitions and sent them to the Attorney General for his review as to “legal content and form.” The Attorney General approved them and notified the Secretary of that approval. Under Section 116.180, however, the Secretary cannot certify the official ballot title for any of the proposed petitions until he receives both the approved summary statement and the approved fiscal note summary (as well as the fiscal note) pertaining to that proposed petition.

To break this impasse, Fitz-James filed a petition in the Cole County circuit court seeking a writ of mandamus to compel the Attorney General to perform his duty under Section 116.175.4 or for a declaratory judgment that the ballot title provisions in chapter 116 are unconstitutional on their face or as applied. On May 17, the circuit court entered preliminary writs directing the Attorney General, the Secretary, and the Auditor to file responsive pleadings to Fitz-James’s petition for mandamus. After briefing and argument, to approve the Auditor’s fiscal note summaries and notify the Auditor of that approval the circuit court entered judgment granting the writ of mandamus.  The Attorney General timely appealed the circuit court’s judgment to the Missouri Supreme Court.

Analysis: The Missouri Supreme Court started it analysis by noting what this case is not about: This “…case is not about the substance of Fitz-James’s proposed initiatives petitions, nor is it about the fiscal impact of those proposals.

The issue is: “which state official is authorized to estimate and summarize that fiscal impact.”

Statutory Analysis – The answer is simple. Section 116.175 unequivocally assigns this question to the Auditor, and not the Attorney General.  Furthermore, the court notes: “The Attorney General’s narrow authority to approve the “legal content and form” of the fiscal note summaries cannot be used as a means of usurping the Auditor’s broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary.”

“The Attorney General first argues the “legal content” of the fiscal notes is deficient because they rely on a small pool of inadequate responses from local and state entities that underestimate the cost of the proposed measures. This argument concerns only the fiscal note, however, and nothing in Section 116.175.4 requires the Attorney General to approve the “legal content and form” of the fiscal notes. It requires him to approve only the “legal content and form” of the fiscal note summaries.”

The Attorney General challenges, instead, the substance of the fiscal notes, i.e., the assessment of the proposal’s cost or savings, if any, to state or local governmental entities. But Section 116.175.1 makes clear that the responsibility for assessing the fiscal impact of a measure belongs solely to the Auditor, and only the “legal content and form” of that assessment are to be reviewed by the Attorney General.

The Attorney General also claimed that, whenever (and for whatever reasons) he rejects and returns to the Auditor a fiscal note or fiscal note summary, the Auditor has no alternative under Section 116.175.5 but to modify the note and summary and resubmit them to the Attorney General.

This argument misreads Section 116.175.5 and stands the entire statute on its head. The only requirements in Section 116.175 that the Attorney General is authorized to enforce are the three “legal content and form” requirements in subsection 3. Under Section 116.190, however, the circuit court can do what the Attorney General cannot, i.e., review the substance of the fiscal note and the fiscal note summary to determine if either or both of them are insufficient or unfair.

Right of Initiative – The Court ends its analysis by noting the importance of the initiative in our constitution.

Nothing in our constitution so closely models participatory democracy in its pure form. Through the initiative process, those who have no access to or influence with elected representatives may take their cause directly to the people. The people, from who all constitutional authority is derived, have reserved the “power to propose and enact or reject laws and amendments to the Constitution.”

Furthermore, rules for the interrelating the right of initiatives and referendums are to be liberally construed, “to avail voters with every opportunity to exercise these rights” and that “[t]he ability of voters to get before their fellow voters’ issues they deem significant should not be thwarted in preference for technical formalities.”

The Supreme Court ended its opinion with an admonishment of the Attorney General. “If the Attorney General had complied with his duty to approve the Auditor’s fiscal note summaries in the time prescribed by Section 20 116.175.4, the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago.” State of Missouri Ex Rel. Dr. Fitz-James v. Andrew Bailey, (SC100132, 07/20/23)

Comment Howard: This was a flagrant effort to delay, based on a frivolous interpretation of the power of the Attorney General to impose his interpretation of his powers to delay the certification of signatures to submit to the voters an initiative to enshrine in our constititution the right of reproductive care. Litigation to delay the collection of signatures continues and arguments, in the latest case will be heard in early September by the Cole County circuit court. 

Case Worker Had Some Discretion To Take Action – Therefore, No Right To Mandamus And Official Immunity Applies

Facts and Procedure: In November 2019, the department of social services received a child abuse and neglect hotline call regarding a child younger than 2 years. The caller expressed concern the child was being exposed to drugs. The case was assigned to Crystal May, a caseworker. May attempted to contact the child’s parents but was unsuccessful, so she sent a letter to the child’s father, requesting he call her.

She made no further attempts to contact the parents until December, when the Rolla police department made a hotline call regarding the child. The call was accepted as a child abuse and neglect report and designated a “level 1” priority, which required a face-to-face meeting between May and the child within three hours. May immediately began an investigation in which she visited the child’s home, contacted law enforcement and collected physical evidence. Within the required three hours, May arrived at the child’s home, which was being searched by law enforcement officers. Inside the home, the officers found narcotics in the child’s shoes and in a candy bowl. May reported the parents had care, custody and control of the child at the time and the child had significant personal injuries. Later that day, May met with the child’s parents at the police department. They denied any drug use but agreed to take drug tests and to allow the child to be drug tested. The parents and paternal grandmother agreed, until the drug tests were completed, the child would stay with her paternal grandmother and the parents would have no unsupervised visits with the child. The child tested positive for opiates, morphine and heroin.

May eventually spoke to the mother about the test results and asked to have a meeting before the child would be returned to her parents’ custody. Ms. May did not attempt to contact the father, paternal grandmother, or law enforcement regarding M.S.’s positive drug tests.

On December 21, police officers discovered the child unresponsive at her parents’ home, and she was pronounced dead at the hospital. It was determined the child died from a fentanyl overdose, and her death was ruled a homicide. Her parents pleaded guilty to first-degree endangering the welfare of a child. Christina Forester, the child’s maternal grandmother, filed a wrongful death suit against May, alleging she had a ministerial duty to make a SAFE CARE provider referral. She further alleged May’s failure to make such a referral until five months after the child died resulted in the child’s death. May moved to dismiss the case on the basis of official immunity. After briefing and argument, the circuit court sustained May’s motion and dismissed the case with prejudice based on official immunity. Forester appealed and the case was transferred to the Missouri Supreme Court.

Analysis: The Court starts it analysis by discussing the doctrine of official immunity.  Official immunity protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts. There is a narrow exception to the official immunity doctrine when a public officer fails to perform a ministerial duty required by law. Ms. Forester argues this exception applies because she alleges facts in her petition demonstrating that, having begun an investigation, Ms. May had no discretion but to make a SAFE CARE referral by completing a referral form and emailing it to a designated email address within 72 hours. In support, Ms. Forester relies on Section 210.146.1, RSMo, and a provision of the children’s division’s child welfare manual

Under the statute there was room for variation in when and how May would respond to the reports of abuse, including whether to make a referral at all; therefore, her acts were discretionary, not ministerial because of how she could respond to the reports of abuse, including whether to make a referral at all.

The Court concludes Forester failed to sufficiently allege the ministerial-duty exception to official immunity applied because under the statute and regulations there was “room . . . for variation in when and how” Therefore, the factual allegations of Ms. Forester’s petition establish Ms. May is entitled to official immunity because she failed to establish the ministerial-duty exception to official immunity applies. Christina Forester v. Crystal May, (SC99928, 07/21/23)

Comment Howard: Apparently, the Court of Appeals thought the Supreme Court, needed to weigh in on this case. I thought the case was close.  I would treat the opinion as the last word on what constitutes a ministerial exception to the official immunity doctrine. It seems like any discretion, however de minimus, means official immunity applies. 

This case cries out for a remedy, considering a child’s life, who was 2 years of age, was endangered and lost because of inaction by state officials. My personal view is that the doctrine of official immunity is deeply flawed. Time for law school professors to take this on and point the way. 

Comment Ragan: The child died because of the parents.  Changing liability in these circumstances wouldn’t have changed the parents conduct.  You can’t ignore that there were other family members involved in this situation who could have stepped up to prevent this tragedy.  What would you do to save your grandchild’s life?  Most people would intervene and take any action needed.  Sadly, bad parents are far too common and social workers often have to figure out what might be the least bad option.  Even when they remove children our legal system prefers family reunification so it is very possible the child would have been returned to the parents by the court.  

Title Company Had Actual Notice Because Its Check of Records Disclosed County Lawsuit Over Ordinance Violations

Facts and Procedure:Appellants Sanford Sachtleben and Luciann Hruza (“Appellants”) purchased a title insurance policy from Respondent Alliant National Title Insurance Co. (“Alliant National”) for a property located in New Melle, Missouri. The property was undeveloped except for a horse barn built by the previous owners. Before Appellants acquired the property, the city of New Melle sued the previous owners, alleging that the barn violated multiple zoning ordinances. Alliant National learned of the lawsuit through a title search conducted by its agent, Investors Title Company (“ITC”), but did not identify it in the title policy or inform Appellants of its existence.

After the sale, Appellants were added to the lawsuit as defendants. Appellants expected Respondent to defend them against the lawsuit pursuant to a title policy provision providing coverage for ordinance violations. When Alliant National declined, Appellants sued for breach of title insurance contract. The trial court granted summary judgment in favor of Alliant National, finding that Alliant National did not have constructive notice of the ordinance violations as required by the policy terms, therefore excusing their failure to defend Appellants against the New Melle lawsuit.

Analysis:Title insurance policy covered risks that included enforcement of ordinances as recorded by notice in the “Public Records.” Public records constitute constructive notice when filed with the Recorder of Deeds, but that does not negate actual notice, according to statute governing recording of documents. Title insurer had actual knowledge of a circuit court action to enforce a county ordinance on seller’s property when insurer issued a title insurance policy. “A party who has received constructive notice is not prejudiced by and cannot complain of the failure to receive statutory notice [.]”  

The Eastern District held that Alliant National, a title company was not entitled to summary judgment because it had actual notice of the New Melle lawsuit which was sufficient to activate title policy coverage. The record reflects a genuine dispute as to whether Alliant National had sufficient notice of the New Melle lawsuit to invoke its coverage obligations, which is a question of fact for the jury.

Sanf(fedral ord Sachtleben and Luciann Hruza, Appellants, vs. Alliant National Title Insurance Co., Respondent. (ED110612, 07/25/23)

15-minute Observation Explained for DWI
On driver’s appeal de novo from the Director of Revenue’s discipline of driver’s license, for driving while intoxicated, the Director must show probable cause to stop the driver and blood alcohol above .08 percent. The latter depends in part on testing procedure, which includes 15 minutes under examination for any contamination of driver’s mouth, and observation to prevent such contamination. Observation means proximity sufficient to “reasonably ensure, using the senses of sight, hearing, or smell, that a test subject does not smoke, vomit, or have any oral intake” and expressly does not require direct observation.  
Payton Chiann Comer vs. Director of Revenue, State of Missouri, (WD85493, 07/25/23)

Once Registered Under State Law As A Sex Offender You Are Registered for Life if Subject To Federal Registration Requirements Under SORNA.

Drewel is a tier one sex offender, which carries a registration period under SORNA of fifteen years under federal law. Drewel’s registration period commenced when was “sentenced for the offense giving rise to the registration requirement.” Drewel’s fifteen-year registration period ran from 2001 to 2016. Therefore, at a minimum, he was required by federal law to register from 2008 to 2016.  At issue in this case is whether a tier one offender, like Drewel, is eligible for removal from the Registry pursuant to section 589.401 if he or she has previously been required to register under SORNA.

 Federal statutes require Missouri to maintain a sex offender registry and to register certain persons. The Western District held that according to the Missouri Supreme Court, “[s]o long as the General Assembly does not change the text of § 589.400.1(7), this Court is persuaded it should continue to apply § 589.400.1(7) as mandating a lifetime registration requirement in Missouri if an offender ‘has been’ subject to federal registration requirements under SORNA.” Western District reverses judgment for applicant and enters judgment for the State denying removal from the registry.  

William H. Drewel vs. Missouri State Highway Patrol and Cole County Sheriff John P. Wheeler  (WD85246, 07/25/23)  (Consolidated WD85269) 

Legal Solutions To Gun Violence Remedies Seem Futile

Gun violence is at an all time high and Missouri has more than its fair share. Advocates to reduce this violence may try draw local government attorneys into this conflict by asking if there are any solutions, in light of a recent federal district court ruling that Missouri’s ban on local gun legislation was unconstitutional. The  Court ruled that the law was still in effect while the appeal process was ongoing. That prompted the City of St. Louis to ask the State to authorize local legislation. In case you get prodded by your local governmental body to join in the request you may want to forewarn them of the difficulties of legislation in light of the difficulties facing gun legislation.

You may want to consider a very good article on gun control, laws covering the fate of gun control laws  in the July 27,2023 Edition of Politico, noting how the U. S. Supreme Courts Ruling in New York State Rifle & Pistol Association v. Bruen, striking down a long standing New York carry law has cast doubt on gun control legislation. This article is extremely comprehensive covering all cases since Bruen, noting legislation has generally failed to pass muster. The Politico article, further notes that there is another Second Amendment case, United States v. Rahimi, which will determine whether people under domestic violence restraining orders can own guns. This case will test just how far the court is willing to go to expand Second Amendment rights.

Another good article is THE EVOLUTION OF MISSOURI GUN LAWS, How the Heck Did We Get Here? By Jennifer M. Joyce Vera Causa Group, LLC provides background on Missouri laws but is not current. https://www.jacksoncountyprosecutor.com/DocumentCenter/View/890/Evolution-of-Missouri-Gun-Laws-by-Jennifer-Joyce

As you can see there a lot of activity in this area.