Missouri Supreme Court to hear Jay Purcell's Sunshine Law case Wednesday

In April 2008, a Cape Girardeau County official's infatuation with a buxom actress started a chain of events that on Wednesday will put before the Missouri Supreme Court the question of whether county commissions legally exist.

Tom Ludwig, the Jackson attorney paid $23,000 by the Cape Girardeau County Commission to take the case, says they don't.

"This Honorable Court does not have jurisdiction over a fictional entity," Ludwig wrote to conclude the first paragraph of the brief filed on the commission's behalf.

The seven judges will hear the case of a commissioner, Jay Purcell, acting as an individual taxpayer, accusing the commission of meeting illegally behind closed doors. Purcell was a willing participant in the meeting, raising questions about it a week later and suing the commission while under threat of criminal prosecution for recording the closed session.

In saying the commission is a fictional entity, Ludwig is arguing that the commission exists only as an extension of its members. Citing cases that go back to 1920, he wants the court to rule that unless individual members are named as defendants, a county commission cannot be sued.

"The 'Cape Girardeau County Commission' is the name given to the three individuals who serve as County Commissioners in Cape Girardeau County," Ludwig wrote. "That entity has no right to hold property and no right to sue or be sued in its own name."

But suing the commission only was the only strategy open to Purcell, Ludwig noted. "Had he properly amended his pleadings after the jurisdiction issue was raised, he would have literally sued himself, thereby exposing himself to political humor and a quick dismissal of his suit since a party cannot sue himself."

If the state's highest court agrees, its judges won't have to rule on any other issue in the case that symbolizes the combative atmosphere that exists in local county government. A ruling that commissions can't be sued would end Purcell's last hope of proving the commission violated the state Open Meetings and Records Act, commonly known as the Sunshine Law. He lost his case in circuit court and again at the Missouri Court of Appeals.

On Wednesday, J.P. Clubb, Purcell's attorney, must convince the court that those lower courts were wrong. But first he must convince the court that commissions exist.

"This court need look no further than the plain language of the statute for authority that a county commission may be sued for enforcement of Chapter 610," the Sunshine Law, Clubb wrote in his arguments to the court.

The Sunshine Law envisions both lawsuits against the "public governmental bodies" subject to it as well as the individual members, Clubb wrote. Forcing plaintiffs to name every individual member of a body along with the body itself would escalate court costs and "have a chilling effect," Clubb wrote.

The law allows for civil penalties of up to $5,000 for knowing violations. The penalties may be imposed on either the governmental body or its members.

"Whether we get a favorable ruling from the Supreme Court or not, the fact of the matter is that open government has won at least a small victory by even taking this to the Supreme Court," Purcell said in a statement issued in response to written questions from the Southeast Missourian.

On April 17, 2008, Purcell made a motion that the commission go into closed session. It had two issues to discuss -- County Auditor David Ludwig's repeated use of his office computer to view and print pictures of actress Pamela Anderson and problems with a road easement.

In the room, auditor Ludwig was pressured to quit by Presiding Commissioner Gerald Jones, Purcell and then-District 1 Commissioner Larry Bock. Prosecuting Attorney Morley Swingle was present, in part to tell the commission that state law made official misconduct, not personal misdeeds, the standard for ousting Ludwig.

Purcell concealed a digital recorder in his jacket pocket. A little more than a week later, on April 25, Purcell wrote an e-mail to his fellow commissioners Gerald Jones and Larry Bock that he had concerns that the meeting violated the Sunshine Law. When Purcell revealed he had made a recording -- a crime if the meeting was legally closed -- Prosecuting Attorney Morley Swingle sought an investigation by the Missouri Attorney General.

Purcell then filed his lawsuit, accusing the commission, but not the individual members, of violating the law. The Sunshine Law requires a notice when a public governmental body intends to go into closed session, including a citation of what exemptions to open meetings rules allow that particular closed meeting. Purcell challenged whether the notice in this case met the requirements of the law.

While personnel matters are proper to discuss in closed session, that exemption doesn't extend to personnel issues involving elected officials. Discussions of lawsuits and potential lawsuits with attorneys are also allowed in closed session. Purcell argues through Clubb that taking Ludwig into closed session was a violation and that the discussion shouldn't be shielded by the exemption for talks with lawyers.

Purcell lost his case at the trial level, when Associate Circuit Judge Stephen Mitchell of Stoddard County ruled that while the closed discussion "wandered off" from approved subjects, there were no knowing violations. The meeting notice also didn't violate the law, Mitchell ruled.

Purcell lost again when the Eastern District of the Missouri Court of Appeals ruled that his lawsuit was fatally flawed from the start because he did not name the individual members of the commission. If he had done so, he would have had to name himself as a defendant, and no one can be a plaintiff and a defendant in the same lawsuit.

Once the high court gets past legal questions about the commission's legal status, Clubb expects it will see the real issues. "Even if you take all that stuff as true, does that change the fact that they violated the law," he said. "Does that change the fact that they had a four-hour closed-door session, and the only person who says, 'Yes, that was wrong,' was Jay Purcell?"

Attorney Tom Ludwig -- no relation to David Ludwig -- said he expects the court to uphold previous rulings in the case and, if the high court looks at the merits, the commission will win again. "I will be arguing that Judge Mitchell's decision in the trial court was exactly right," Ludwig said.

In his opinion, Mitchell said he ruled on the merits of the case because he felt the issues were too important for him to stop at whether the commission can legally be sued.

So far, the commission has paid Tom Ludwig $23,000, an amount that will grow when the bills for Wednesday's trip to Jefferson City arrive. The lawsuit, as well as other issues involving Purcell taping talks with fellow officeholders, has made work on the commission a horrible experience, Jones said.

But worst of all, Jones said, the infighting ruined the commission's public reputation.

"People are looking at us like a bunch of children over here arguing with one another over frivolous things," Jones said. "We have lost all respect. We have lost all dignity. People think they have to rescue us now."

rkeller@semissourian.com

388-3642

Supreme Court coverage

Look for coverage beginning Wednesday morning of oral arguments at the Missouri Supreme Court in County Commissioner Jay Purcell's Sunshine Law case against the Cape Girardeau County Commission.

• Live online: Follow oral arguments live at semissourian.com. Court convenes at 9 a.m. with three cases. Purcell v. Cape Girardeau County Commission is third on the docket.
• Web updates: Read an initial report at semissourian.com about the arguments that will be filed soon after lawyers conclude their work. Photos and video from the court will be posted as well.
• In print: A complete report on the case will be in Thursday's Southeast Missourian.

Pertinent addresses:

1 Barton Square, Jackson, Mo.

207 W. High St., Jefferson City, Mo.