Purcell loses appeal of Cape County Sunshine Law suit

Jay Purcell has lost his appeal in a lawsuit against the Cape Girardeau County Commission for Sunshine Law violations.

The Missouri Eastern District Court of Appeals ruled that the county commission cannot be sued.

"Because the Commission as a stand-alone entity is not a proper party to this action, we find that the trial court erred when it allowed the action to proceed against the Commission without the individual commission members named as defendants in their official capacity," wrote Eastern District Court Judge Kurt Odenwald in the court's opinion.

The judgment allows for the case to be started over, if commissioners are named individually in a suit. Purcell also has the option to ask Missouri's Supreme Court to hear the case or to let the ruling stand and pursue no further action.

Stoddard County Associate Circuit Judge Stephen Mitchell ruled in October that the commissioners did not knowingly violate the Sunshine Law.

Purcell, the county's 2nd District commissioner, filed the lawsuit last year in May, claiming the commission broke the Sunshine Law, formally known as the Missouri Open Meetings and Records Act, on April 17, 2008. At the end of a regularly scheduled meeting Purcell made a motion to go into a closed session to discuss real estate matters. Presiding Commissioner Gerald Jones added to the motion that a personnel matter also needed to be discussed. Purcell, Jones and then-1st District Commissioner Larry Bock agreed to go into closed session.

During that meeting, which Purcell secretly recorded, the commissioners discussed a road easement for Lawrence McBryde's property and confronted county Auditor David Ludwig for repeatedly misusing his county computer. Purcell later released the recording to the media and the county clerk's office. Purcell sued the commission after learning the secret recording of a properly closed meeting is a Sunshine Law violation that could result in up to 15 days in jail and up to $300 in fines.

Tom Ludwig, the Jackson attorney representing the commission, said Tuesday the appeals court's decision, while limited to one issue, remains a victory for the county. He said appeals court effectively acknowledged that Purcell was suing himself.

"I feel we won the Sunshine case in the trial court and we won the issue of not being able to sue a county commission at the appellate level, so not only do I feel it's a victory, I feel it's double victory," Ludwig said.

Jean Maneke, the Kansas City attorney who filed a brief on behalf of the Missouri Press Association over concerns that the case could weaken the Sunshine Law, said the court ruled on "the smallest possible issue in the case," which she called a technicality.

"What the court has done was issue a very narrow ruling," she said. "They didn't address any of the issues of substance, including the one I was most concerned about. This is a pass on all the issues of merit."

Maneke said the ruling "leaves the case to continue and be heard another day, which ought to concern the commissioners."

J.P. Clubb, Purcell's attorney, said he was "disappointed we didn't get a ruling on the merits of the case and that the court decided this matter on a technicality," adding that he and Purcell will "be talking over the next several days about what our options are."

Within hours of the opinion's publication Tuesday, both the county and Purcell issued written statements reacting to it.

The county's news release called Purcell "the loser" and characterized the court's decision as one that the county "won on the merits of the Sunshine Law issues in front of Judge Mitchell at the trial level" and "won on the legal issue involving proper parties to a lawsuit at the appellate level."

Purcell maintained that he filed suit on the heels of the commission attempting "to protect a fellow elected politician by discussing his inappropriate behavior in a closed session meeting instead of a public meeting."

David Ludwig, who had been confronted for misusing his computer in 2007, had signed a letter promising to resign if he was caught a second time. In the closed meeting on April 17, 2008, Jones introduced the idea of making the auditor keep that promise.

Purcell told the other two commissioners he would be the "bad cop" during the conversation, which included county prosecutor Morley Swingle.

David Ludwig refused to give up his job.

Purcell said he filed the Sunshine Law suit after asking "the commission to admit our mistake and make public the contents of this meeting. They refused and I took legal action to force the Cape Girardeau County Commission to follow the Sunshine Law. I think it is very telling that the county commission chooses to argue the technicality that they can't be sued instead of defending their actions. These actions remind me of a defense lawyer whose client was caught red-handed committing a crime and then argues that his client should be released because he was arrested before he was read his rights."

Jones saw the court's opinion differently.

"They ruled based on some legal issues and sent it back to be dismissed. That suits me," he said. Jones declined to reflect on what, if any, meaning could be attached to the Sunshine Law issues that the court did not address.

"Why would I want to address that? I didn't sue myself. I didn't bring that up. This was all Purcell's doing, not mine," Jones said. "We did not do any violation of the Sunshine Law. Purcell did. Not me. He's the one that did all the stuff. He did all the ranting and raving."

Jones, who characterized Purcell's suit as "very frivolous and stupid," said Purcell only pursued the case to avoid being prosecuted for recording the closed meeting. The Sunshine Law bars audio or video recordings of a properly closed meeting unless such a recording is approved by the board members present.

Jones said he would pursue having Purcell pay the county's share of the legal costs.

"We wouldn't be handling the taxpayers' money prudently if we did not consider that," Jones said.

Bock, who left the commission Dec. 31, said it appeared that the court "did not rule if we made a mistake or not. It leaves it open for [Purcell] to sue individually. Well, to me the court kind of said he did a foolish thing by suing the commission. Although all he wanted was publicity to begin with. He did get that. But as far as going further with the suit, I don't have any comment on that."

As of Tuesday afternoon, the county has paid $19,948 on the case; $19,166 to Tom Ludwig and $781 to court reporter Karen Elledge for depositions. Purcell said he has spent $16,000 in legal fees.

In addition to Odenwald, Eastern District Court Chief Justice Nannette A. Baker and Judge Patricia L. Cohen heard the case. The judges' opinion was unanimous.

Pertinent addresses:

1 Barton Square, Jackson, MO

One Post Office Square, 815 Olive St., Room 304, St. Louis, MO