Rachal LAUT, f/k/a/ Rachal Govro, and John M. Soellner, Appellants, v. CITY OF ARNOLD, Respondent.
No. SC 95307
Supreme Court of Missouri, en banc.
Opinion issued June 28, 2016
491 S.W.3d 191
The city was represented by Robert K. Sweeney and Allison M. Sweeney of Robert K. Sweeney LLC in Hillsboro, (636) 797-5600.
Laura Denvir Stith, Judge
Plaintiffs Rachal Laut and John Soellner appeal the trial court‘s judgment that Plaintiffs are not entitled to a civil penalty or attorney‘s fees under
What constitutes a knowing or purposeful violation of the Sunshine Law is a question of law.
Applying these standards, the trial court found, after an evidentiary hearing, that the city‘s failure to disclose a particular investigative internal affairs report was neither knowing nor purposeful. In so doing, it rejected Plaintiffs’ contention that the city purposefully or knowingly stonewalled the Sunshine Law request and intentionally violated the law. It was up to the trial court to weigh the evidence and resolve the factual question whether the city‘s conduct fell within the definitions of knowing or purposeful violations under
I. FACTUAL AND PROCEDURAL HISTORY
In 2010, Plaintiffs believed that one or more Arnold police department employees had accessed Plaintiffs’ confidential records in the “Regional Justice Information System” (REJIS) database. In September 2010, Ms. Laut filed a complaint with the Arnold police department, and the department completed an internal affairs investigation. Plaintiffs hired counsel, and on October 11, pursuant to Missouri‘s Sunshine Law,
- the use of the REJIS computer network by any department employee, including two specifically named employees, to access information about Plaintiffs,
- any communications by the two named employees or others with law enforcement regarding a criminal background check of Plaintiffs,
- the reasons for termination of one of the two employees, and
- the reasons for disciplinary actions taken against the other employee.
The letter stated the attorneys were seeking the documents for the purpose of investigating civil claims.
All incident reports and arrest reports shall be open records. Notwithstanding any other provision of law other than the provisions of subsections 4, 5 and 6 of this section or
section 320.083 , investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive. If any person is arrested and not charged with an offense against the law within thirty days of the person‘s arrest, the arrest report shall thereafter be a closed record except that the disposition portion of the record may be accessed and except as provided insection 610.120 .
The city‘s attorney replied by letter that there had been no criminal investigation and, therefore, no incident report or arrest record. The city stated there had been an internal affairs investigation but the resulting report and all other documents requested by Plaintiffs were closed under
Plaintiffs’ counsel again demanded the records on October 22 and claimed Plaintiffs were entitled to them under
On December 2, 2010, Plaintiffs filed their petition for preliminary relief, disclosure of records, statutory damages and attorney‘s fees. Plaintiffs claimed that the records were part of a criminal investigation and were open records because, whatever the original motivation for the investigation, under federal law someone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer” commits a federal crime that is punishable by fines or imprisonment.
Once it is determined that a governmental body is subject to the Sunshine Law and that it has claimed that a record is closed, the burden is on the governmental body to demonstrate that the Sunshine Law does not require disclosure. See
The trial court granted the city‘s motion. Plaintiffs appealed, and the court of appeals held there was a dispute whether the internal affairs investigation was a criminal investigation and remanded the case for the trial court to conduct an en camera review of the internal affairs report and of other documents responsive to the two requests relating to employees improperly accessing REJIS and communicating about background checks. Laut v. City of Arnold, 417 S.W.3d 315, 320-21 (Mo. App. 2013). The court of appeals, however, affirmed the trial court grant of summary judgment “as it relates to any public records other than investigative reports, containing only information responsive to Appellants’ requests for the reasons for discipline of [the two named employees].” Id.
On May 7, 2014, the trial court held a hearing at which the city‘s counsel attested that the records were “a full and accurate representation of all of the documents that are contained within Ms. Laut‘s personnel records and all records that are pertaining to the case.” After reviewing the records en camera, the trial court found that, “with the exception of the Internal Affairs report,” all the other records were personnel records clearly exempt from disclosure under
With regard to the internal affairs report, the trial court found that the city‘s “contention that the Internal Affairs report is in whole, or in part, a personnel record is wholly inaccurate.” The trial court stated that the internal affairs investigation was initiated after a complaint of alleged criminal activity and the investigation became inactive when the subject of the investigation resigned, making the internal affairs report a record of a closed investigation that must be disclosed under
Apparently presuming that Plaintiffs would seek fees under
The trial court issued its judgment denying the civil penalty and attorney‘s fees because, it said, “this Court cannot on this record find that the Defendant City of Arnold either knowingly or purposefully violated the provisions of
II. STANDARD OF REVIEW
“An issue of statutory interpretation is a question of law, not fact.” Treasurer of State-Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013). Accordingly, the meaning of the terms knowing and purposeful as set out in
Whether the conduct of the city brings it within the scope of the statutory definitions of knowing or purposeful conduct is a question of fact. State v. Selman, 433 S.W.2d 572, 575 (Mo. 1968) (question of intent is fact question for the jury).4 Such factual determinations are reviewed by this Court under the standard set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Under that standard, it was up to the trial court, as fact finder, to determine whether the city officials’ conduct was knowing or purposeful as those terms are used in
Because Plaintiffs argued that the application of the statute to the facts was a question of law to be determined de novo, they did not set out in their point relied on whether they believe that the judgment was not supported by substantial evidence, or whether they believe it was against the weight of the evidence. This Court has recently reiterated that these two standards are separate and distinct and that a party must set out these claims in separate points relied on. Pasternak v. Pasternak, 467 S.W.3d 264, 270 n. 4 (Mo. banc 2015); Ivie v. Smith, 439 S.W.3d 189, 199 n. 11 (Mo. banc 2014). Because Plaintiffs do raise these questions in the argument section of their brief and the city did not object to their absence from the point relied on, this Court, nonetheless, has exercised its discretion to review the record to determine whether the judgment is supported by substantial evidence and is not against the weight of the evidence.
A trial court‘s judgment is not supported by substantial evidence when “there is no evidence in the record tending to prove a fact that is necessary to sustain the circuit court‘s judgment as a matter of law.” Ivie, 439 S.W.3d at 200. “When reviewing whether the circuit court‘s judgment is supported by substantial evidence, appellate courts view the evidence in the light most favorable to the circuit court‘s judgment and defer to the circuit court‘s credibility determinations[,]. . . no contrary evidence need be considered on a substantial-evidence challenge . . . [and] [c]ircuit courts are free to believe any, all, or none of the evidence presented at trial.” Id. “A claim that the judgment is against the weight of the evidence presupposes that there is sufficient evidence to support the judgment[,]” and a trial court‘s “judgment is against the weight of the evidence only if the circuit court could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment.” Id. at 206 (internal quotations omitted). “Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy, 536 S.W.2d at 32.
III. KNOWING AND PURPOSEFUL VIOLATIONS OF SUNSHINE LAW
3. Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has knowingly violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to one thousand dollars. If the court finds that there is a knowing violation of sections 610.010 to 610.026, the court may order the payment by such body or member of all costs and reasonable attorney fees to any party successfully establishing a violation. The court shall determine the amount of the penalty by taking into account the
size of the jurisdiction, the seriousness of the offense, and whether the public governmental body or member of a public governmental body has violated sections 610.010 to 610.026 previously. 4. Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has purposely violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to five thousand dollars. If the court finds that there was a purposeful violation of sections 610.010 to 610.026, then the court shall order the payment by such body or member of all costs and reasonable attorney fees to any party successfully establishing such a violation. The court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the public governmental body or member of a public governmental body has violated sections 610.010 to 610.026 previously.
A. Definitions of knowing and purposeful in section 610.027
This Court very recently addressed the dispositive issue here: what is required to show a knowing or purposeful violation of the Sunshine Law? Strake held that a purposeful violation occurs when the party acts with “‘a conscious design, intent, or plan’ to violate the law and d[id] so ‘with awareness of the probable consequences.‘” Strake, 473 S.W.3d at 646, citing Spradlin, 982 S.W.2d at 262. Strake also stated that “[a] knowing violation requires proof that the public governmental body had ‘actual knowledge that its conduct violated a statutory provision.‘” Id. In support, Strake noted that White v. City of Ladue, 422 S.W.3d 439 (Mo. App. 2013), had been presented with a similar issue as to whether a city had knowingly violated the Sunshine Law. White found it did not because, while the city knew it charged the plaintiff for the time the city‘s attorney spent reviewing the request, the city did not have actual knowledge that its actions violated the Sunshine Law. White, 422 S.W.3d at 452-53.
While not precedential, the federal district court‘s unpublished decision in Wright v. City of Salisbury, Mo., No. 2:07CV00056, 2010 WL 2947709, at *5-6 (E.D. Mo. July 22, 2010) is also instructive. That case involved a claim that the city board of aldermen violated the Sunshine Law when it met in closed session without announcing the reason why it was in closed session, as required under the Sunshine Law. Id. at *1. The federal district court was called on to apply the definition of “knowing” that this Court would apply. It found “that the Missouri Supreme Court would hold that the drafters did not intend to impose the specter of civil penalties and attorneys’ fees on a strict liability basis.” Id. at *5. Accordingly, Wright held that it would not impose a penalty or attorney‘s fees because “there was no credible evidence that any of the Defendants had a purpose or intent to violate the Sunshine Law. Nor was there any credible evidence that any Defendant knew that his actions might violate the Law . . . the failure to announce the reason or specific statutory exception for going into closed session was inadvertent, and was not ‘knowing’ within the meaning of the statute.” Id. at *6.
The determinations in Strake, Wright and White that a knowing violation requires knowledge of the violation and that a purposeful violation requires proof of a conscious plan or design to violate the statute, are based on the most definitive
Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has knowingly violated sections 610.010 to 610.026, . . . .
(Emphasis added).
That is,
Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has purposely violated sections 610.010 to 610.026, . . . .
(Emphasis added).
Again, this means that the governmental body‘s purpose must be to violate the Sunshine Law, not merely to not produce the report. Purposeful conduct means more than actual knowledge. “To purposely violate the open meetings law a member of a public governmental body must exhibit a ‘conscious design, intent, or plan’ to violate the law and do so ‘with awareness of the probable consequences.‘” Spradlin, 982 S.W.2d at 262. Accord Strake, 473 S.W.3d at 645. Contrary to the suggestion of the dissenting opinions, this is a far greater burden than required to prove a knowing violation, for to prove a purposeful violation the plaintiff must prove more than “mere intent to engage in the conduct resulting in the violation[.]” Spradlin, 982 S.W.2d at 262. Plaintiff must show that the conscious plan or scheme, the purpose of the conduct, was to violate the law.
Strake itself provides a good example of the distinction between a knowing and a purposeful violation. The public entity in that case, Robinwood, admitted it knew that settlement agreements generally are open records but failed to produce the settlement agreement requested in that case because it was concerned that disclosure would breach the settlement agreement itself, which contained a confidentiality clause. Strake, 473 S.W.3d at 646. It, therefore, chose not to produce the settlement agreement so as not to violate the confidentiality clause.
This Court held in Strake that this constituted a knowing violation of the Sunshine Law because, “[t]he logic of the trial court‘s judgment and Robinwood‘s argument [that it knew it had conflicting legal obligations] amounts to an acknowledgement that Robinwood had actual knowledge of its Sunshine Law obligations.” Id. Strake further found that “Robinwood‘s decision to withhold the requested docu-
This Court reaffirms its statement in Strake that a knowing violation requires that the public governmental body had actual knowledge that the Sunshine Law required production but did not produce the document. A purposeful violation involves proof of intent to defy the law or achieve further some purpose by violating the law, such as Robinwood‘s plan to avoid liability for breach of contract.
The dissenting opinions suggest that this holding is in error and that this Court should discard the definition of a knowing violation that it reaffirmed in Strake just last year. Judge Fischer‘s dissent suggests that nothing in the statute requires knowledge that the failure to produce a report violates the Sunshine Law and that this Court should utilize a dictionary definition of knowing conduct instead. By contrast, Judge Wilson‘s dissent suggests that this Court should substitute the definition of “knowing” used in the criminal statutes and points out that one can be guilty of knowingly violating a criminal law without proof that one knew that one‘s conduct violated that law. His dissent says the same should be true for imposing monetary penalties under the Sunshine Law.
Certainly the legislature could adopt a statute that fit the molds advocated for by either of the dissents. But it has not done so yet. The question before the Court is not whether proof of a Sunshine Law violation requires proof that the party knew it was violating the Sunshine Law. It is well-settled that no such requirement exists to prove a Sunshine Law violation.
But, in the case before us, the question is the separate one of whether a penalty in the form of attorney‘s fees and costs must or should be awarded as a result of a Sunshine Law violation. To answer that question, the legislature set out a different standard. Judge Fischer‘s dissent is incorrect that the statute leaves us without guidance as to what the alleged violator must know in order to be liable for attorney‘s fees. The legislature was quite specific—to obtain a penalty, one must do more than prove that one knew that one did not produce a particular document.
B. Trial court did not err in finding the city‘s violation did not knowingly or purposely violate Sunshine Law
Substantial evidence in the record supports the trial court‘s finding that the city did not knowingly or purposely violate the Sunshine Law, and that finding is not
But, here, the question is not whether the city violated the Sunshine Law in failing to produce the report but rather whether that violation was knowing or purposeful. Had the finding that reliance on the personnel exemption was wholly inaccurate been dispositive of that issue, there would have been no need for an evidentiary hearing. But the trial court did hold such a hearing, for it believed, correctly, that a question of fact existed as to whether the city‘s reliance on the exemption was knowing or purposeful, or was merely wrong.
At that hearing, the city offered evidence that it thought the internal affairs investigation involved a personal dispute between employees and not a criminal investigation, that the investigation was conducted to determine the employees’ fitness to perform their duties, and that the city had been advised by its attorney and believed the internal affairs report along with all other requested related records were exempt from disclosure because they were records of disciplinary action and personnel matters. The internal affairs report was the only record that the trial court ordered be disclosed following the en camera review, showing that the city‘s belief was not unreasonable as to most of the requested records. The city‘s letter responding to Plaintiffs’ request for the internal affairs report supports its claim that the city‘s counsel advised the city that the report was a closed personnel record, in contrast to the defendant‘s counsel in Strake, who advised the requested records were open records. Strake, 473 S.W.3d at 646.
As Plaintiffs note, reliance on counsel is not in itself a defense where, as here, no suit has been brought to determine whether the city could close the report and no request was made for a formal opinion from the attorney general or city attorney as permitted by
Indeed, the trial court itself first held all the records were exempt from disclosure, including the report, until after it reviewed the documents en camera following the first appeal and remand. It then considered all of the evidence and determined that, considered in full, the
IV. CONCLUSION
For the reasons set out above, the trial court did not err in entering judgment against Plaintiffs on the question of civil penalties and attorney‘s fees. The judgment is affirmed.
Breckenridge, C.J., Draper, Teitelman and Russell, JJ., concur; Fischer, J., dissents in separate opinion filed; Wilson, J., dissents in separate opinion filed.
Rachal LAUT, f/k/a/ Rachal Govro, and John M. Soellner, Appellants, v. CITY OF ARNOLD, Respondent.
No. SC 95307
Supreme Court of Missouri, en banc.
Opinion issued June 28, 2016
491 S.W.3d 191
I respectfully dissent. In defining “knowingly” for purposes of
I. History of Sunshine Law Remedies
When the Sunshine Law was adopted in 1973, it had no “teeth.” Kansas City Star Co. v. Shields, 771 S.W.2d 101, 104 (Mo. App. 1989). This led the General Assembly to adopt various remedies to ensure meaningful enforcement of the law. Id. One of the “teeth” added in 1982 was a provision allowing the circuit court to order the defendant to pay the plaintiffs attorney‘s fees in cases in which the defendant‘s actions were sufficiently culpable, i.e., when the defendant “purposely” violated the Sunshine Law.
Because the General Assembly did not define “purposely” in
This may be so and the legislature might well consider the issue. However, courts must give effect to the language as written. The plain language of the statute only authorizes assessment of attorney‘s fees against an individual upon a demonstration of a ‘purposeful’ violation of the law. There is no room for construction even when a court may prefer a policy different from that enunciated by the legislature.
Spradlin, 982 S.W.2d at 261 (internal citations and quotations omitted) (emphasis added).
In 2004, the General Assembly took the Court at its word and amended
Every purposeful violation also is a knowing violation, but the opposite is not true. The two terms are not synonymous. If they were, the General Assembly‘s decision to add this new category of cases would be meaningless. See Cox v. Dir. of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003) (when the General Assembly amends a statute, this Court must presume it intended to effect a change to the prior law); see also State v. Liberty, 370 S.W.3d 537, 552 (Mo. banc 2012) (quoting Kilbane v. Dir. of Dep‘t. of Revenue, 544 S.W.2d 9, 11 (Mo. banc 1976)) (“The legislature is not presumed to have intended a useless act.“). Instead, it is clear the General Assembly intended the 2004 amendments to expand the category of cases in which attorney‘s fees may be awarded, while leaving to the discretion of the circuit court the decision of whether to award such fees in all but the most culpable cases (i.e., where the defendant “purposely” violates the Sunshine Law).
II. The Proper Definition of “Knowingly”
The principal opinion takes its definition of “knowingly” from Strake v. Robinwood West Cmty. Improvement Dist., 473 S.W.3d 642, 645 (Mo. banc 2015) (“A knowing violation requires proof that the public governmental body had ‘actual knowledge that [its] conduct violated a statutory provision.‘“) (alteration in original). But the holding of Strake was that the defendant “purposely violated” the Sunshine Law for purposes of a mandatory attorney‘s fee award pursuant to
Not only was the definition in Strake dicta, but in my view, it also was dicta with a wholly unpersuasive origin. The principal opinion states this Court “reaffirmed” the definition of “knowingly” in Strake. But this Court had never before defined “knowingly” for purposes of
The parties have not cited to the Court any cases that define “knowingly” in the context of the Sunshine Law. This Court believes, however, that the Missouri Supreme Court would hold that the drafters did not intend to impose the specter of civil penalties and attorney‘s fees on a strict liability basis. In the recent case of R.L. Polk, 309 S.W.3d at 881, the Missouri Court of Appeals found that the state Department of Revenue had violated the Sunshine Law by charging an across-the board “per record” fee for public records provided electronically over the internet. The Appellate Court, however, specifically recognizing the various mental states and corresponding penalty provisions in the Sunshine Law, held that this violation was not a “purposeful or knowing violation.” Id. at 887. The Appellate Court based this holding on the definition for “purposely” in Spradlin, 982 S.W.2d at 262. Id. Indeed, the trial court in R.L. Polk had held that “the knowing or purposeful violation described in subsections 3 and 4 of Section 610.027 requires a purpose to violate a statutory provision or actual knowledge that the conduct violated a statutory provision.” See Br. of Appellants-Cross-resp‘ts Dep‘t of Revenue & Dir. of Revenue, Case No. WD70973, 2010 WL 718551, at *11 (Mo.Ct.App.) (emphasis added).
Id. at *5 (emphasis added, footnote omitted).
So, the principal opinion defines “knowingly” using language originating from an unpublished federal district court decision that notes—explicitly—that it was applying the definition of “purposely” set forth in Spradlin. In so doing, the intended effect of the 2004 amendments are frustrated by rendering the sought-after expansion of cases in which attorney‘s fees may be awarded wholly illusory. That is, the principal opinion has given “knowingly” a definition that is the functional equivalent of “purposely.” Such a construction is to be avoided. See Liberty, 370 S.W.3d at 552; Cox, 98 S.W.3d at 550; Kilbane, 544 S.W.2d at 11. The principal opinion argues its definition of “knowingly” is not functionally equivalent to “purposely” because proving the defendant had a purpose to violate the Sunshine Law is a greater burden than proving the defendant had actual knowledge that its conduct violated the Sunshine Law. But there is no practical distinction. Of course, to prove the
Furthermore, to properly define a word in a statute that has been left undefined by the General Assembly, this Court does not look to an unreported federal district court‘s decision or even a Missouri court of appeals’ decision. “This Court‘s primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue.” Parktown Imports, Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). When the General Assembly chooses to define a word, that definition is to be followed, but when it leaves a word undefined, “[i]t is a basic rule of statutory construction that words should be given their [usual] and ordinary meaning whenever possible.” State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 479 (Mo. banc 2013) (internal quotations omitted). The usual and ordinary meaning of a word is derived from a regular dictionary. E.g., Miss Dianna‘s Sch. of Dance, Inc. v. Dir. of Revenue, 478 S.W.3d 405, 408 (Mo. banc 2016). Therefore, in defining “knowingly” for purposes of
In Spradlin, this Court mistakenly, in my view, relied on Black‘s Law Dictionary for the definition of “purposely.” Id. I would not have referred to Black‘s Law Dictionary because if the General Assembly desired a particular legal definition, it could have provided one. The ordinary and usual meaning of a word will be found in a regular, non-legal dictionary, and the definition found in such will not always be compatible with the definition found in a legal dictionary. Nevertheless, in the 2004 amendments to
Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has[, when having knowledge, information, or insight,] violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to one thousand dollars. . . .
III. The Case Should Be Remanded for Consideration Applying the Proper Definitions of “Knowingly” and “Purposely”
In ordering the City to disclose the internal affairs report, the circuit court found:
The Defendant City of Arnold‘s contention that the Internal Affairs report is in whole, or in part, a personnel record is wholly inaccurate. The Court finds that the Internal Affairs report is an “Investigative report” as defined in
§ 610.100.1(5) and that it is “Inactive” as defined in§ 610.100.1(3) .The Internal Affairs investigation was ordered By Police Chief Shockey upon the formal complaint by the Plaintiff herein. The complaint alleged criminal violations by City employee Linda Darnell, while working as a Police Department dispatcher. Thereafter, the investigation became inactive when Linda Darnell resigned her position, and no further action was taken. Therefore, at this point in time Plaintiffs are entitled to disclosure of said report.
The circuit court further found the City‘s failure to disclose the internal affairs report was “substantially unjustified under all relevant circumstances.”
As explained above, a defendant “purposely” violates the Sunshine Law when it acts with the plan or purpose of committing such a violation. On the other hand, a defendant “knowingly” violates the Sunshine Law when the defendant knows that a particular record is requested and knows that it has not disclosed it—regardless of whether the defendant knows (or even reasonably should have known) whether the failure to produce the record constitutes a violation of the Sunshine Law.
In my view, this case should be reversed and remanded based on misapplication of the law to the facts.4 Using these correct definitions, there was a basis in the evidence to conclude the City acted purposely or knowingly. While I would defer to the circuit court‘s findings of fact, I would not
The long and short of the City‘s argument is that it did not know that its failure to disclose the inactive investigation report was a violation of the Sunshine Law because one provision of the Sunshine Law (i.e.,
Moreover, the City‘s “reasonable mistake of the law” defense does not preclude a finding that the City “purposely” violated the Sunshine Law because—long before the City‘s conduct in this case—this Court unambiguously held that the failure to disclose an investigative report pursuant to
Strake teaches that, when a defendant makes a conscious decision to violate the Sunshine Law to avoid violating a lesser obligation, it is inescapable that the defendant “purposely” violates the Sunshine Law. Strake, 473 S.W.3d at 646 (defendant subordinated its Sunshine Law obligation to a lesser obligation, i.e., a contractual duty of confidentiality). Here, there was evidence from which the circuit court could find that the City was pursuing one (or both) of two such lesser obligations: (a) a local ordinance prohibiting disclosure or (b) the desire to protect itself from potential civil claims based on the actions of its employees. If the circuit court finds the City subordinated its obligation pursuant to
This case presents the rare case in which it appears the circuit court misapplied the law to the facts. For that reason, in my view, this case should be remanded to the circuit court to apply its factual findings to the proper definition of “knowingly,” defined herein, and “purposely,” as defined in Strake, which had not been decided at the time of the circuit court‘s decision in this case.
Rachal LAUT, f/k/a/ Rachal Govro, and John M. Soellner, Appellants, v. CITY OF ARNOLD, Respondent.
No. SC 95307
Supreme Court of Missouri, en banc.
Opinion issued June 28, 2016
491 S.W.3d 191
When the Sunshine Law was adopted in 1973, it had no “teeth.” Kansas City Star Co. v. Shields, 771 S.W.2d 101, 104 (Mo. App. 1989). This led the legislature to adopt various remedies to ensure meaningful enforcement of the law. Id. One of the “teeth” added in 1982 was a provision al-
In Spradlin v. City of Fulton, 982 S.W.2d 255 (Mo. banc 1998), however, this Court defined “purposely” so narrowly that it rendered the 1982 version of
Now, however, the majority opinion frustrates the intent of the 2004 amendments to expand the cases in which attorney‘s fees may be ordered by defining “knowingly” so that it is functionally—if not precisely—the same as the definition of “purposely” provided in Spradlin. Accordingly, I respectfully dissent.
I. Sunshine Law Remedies Prior to 2004
At the outset, it is worth noting that—at least for certain remedies—the General Assembly provides strict liability for Sunshine Law violations. This means that a plaintiff is entitled to declaratory and injunctive relief any time a Sunshine Law violation is shown, regardless of whether the defendant‘s conduct was accidental or knowing and regardless of whether the defendant knew (or even should have known) that its conduct would constitute a violation of the Sunshine Law.
But, realizing that the availability of declaratory and injunctive remedies may not be a sufficient deterrent to stop Sunshine Law violations or a sufficient incentive to motivate members of the public to bring meritorious Sunshine Law claims, the General Assembly in 1982 authorized a trial court to order a Sunshine Law defendant to pay the plaintiff‘s attorney‘s fees in some—but not all—cases. In deciding where to draw the line between Sunshine Law violations for which an award of attorney‘s fees may (and may not) be made, the General Assembly had to balance two competing realities. First, the costs of bringing a Sunshine Law claim (including, most notably, attorney‘s fees) are so high that they present a considerable barrier to enforcement of the Sunshine Law by members of the public, even when they have a meritorious claim. Second, even when a public governmental body acts with great diligence and utmost good faith, Sunshine Law violations still may occur when the body makes a mistake of fact (e.g., it does not know that a particular record has been requested or is not being produced) or a mistake of law (e.g., it fails to understand that the Sunshine Law requires disclosure in the circumstances at hand). The General Assembly struck that balance in 1982 by providing that a trial court may award attorney‘s fees only where the defendant
Because the General Assembly did not define “purposely” in
This may be so and the legislature might well consider the issue. However, “courts must give effect to the language as written.” Kearney Special Road Dist. v. County of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993). The plain language of the statute only authorizes assessment of attorney‘s fees against an individual upon a demonstration of a “purposeful” violation of the law. “There is no room for construction even when a court may prefer a policy different from that enunciated by the legislature.” Id.; see also Bethel v. Sunlight Janitor Service, 551 S.W.2d 616, 620 (Mo. banc 1977) (issues of public policy must be addressed to the General Assembly).
Spradlin, 982 S.W.2d at 261 (emphasis added).
II. Sunshine Law Remedies After 2004
In 2004, the General Assembly took the Court at its word and amended
Every purposeful violation also is a knowing violation, but the opposite is not true. The two terms are not synonymous. If they were, the General Assembly‘s decision to add this new category of cases would be meaningless. See Cox, 98 S.W.3d at 550 (when the General Assembly amends a statute, this Court must presume it intended to effect a change to the prior law). See also Liberty, 370 S.W.3d at 552 (quoting Kilbane, 544 S.W.2d at 11) (“The legislature is not presumed to have intended a useless act.“). Instead, it is clear that the General Assembly intended the 2004 amendments to expand the category of cases in which attorney‘s fees may be awarded, while leaving to the discretion of the trial court the decision of whether to award such fees in all but the most culpable cases (i.e., when the defendant “purposely violates” the Sunshine Law). This intention is frustrated when “knowingly” is given a definition that is the functional equivalent of “purposely.”
The majority opinion takes its definition of “knowingly” from Strake v. Robinwood West Community Improvement District, 473 S.W.3d 642, 645 (Mo. banc 2015) (“A knowing violation requires proof that the public governmental body had ‘actual knowledge that [its] conduct violated a statutory provision.‘“) (alteration in origi-
Strake took its definition from White v. City of Ladue, 422 S.W.3d 439, 452 (Mo. App. 2013). White states: “A federal district court interpreting Missouri law has held that to establish a ‘knowing’ violation of the Sunshine Law, a plaintiff must show that the defendant had ‘actual knowledge that the conduct violated a statutory provision.‘” White, 422 S.W.3d at 452 (quoting Wright v. City of Salisbury, Mo., No. 2:07CV00056, 2010 WL 2947709, at *5 (E.D. Mo. July 22, 2010)). The unpublished federal district court decision from which White took its definition of “knowingly,” in turn, states:
The parties have not cited to the Court any cases that define “knowingly” in the context of the Sunshine Law. This Court believes, however, that the Missouri Supreme Court would hold that the drafters did not intend to impose the specter of civil penalties and attorney‘s fees on a strict liability basis. In the recent case of R.L. Polk, 309 S.W.3d at 881, the Missouri Court of Appeals found that the state Department of Revenue had violated the Sunshine Law by charging an across-the board “per record” fee for public records provided electronically over the internet. The Appellate Court, however, specifically recognizing the various mental states and corresponding penalty provisions in the Sunshine Law, held that this violation was not a “purposeful or knowing violation.” Id. at 887. The Appellate Court based this holding on the definition for “purposely” in Spradlin, 982 S.W.2d at 262. Id. Indeed, the trial court in R.L. Polk had held that “the knowing or purposeful violation described in subsections 3 and 4 of Section 610.027 requires a purpose to violate a statutory provision or actual knowledge that the conduct violated a statutory provision.” See Br. of Appellants-Cross-resp‘ts Dep‘t of Revenue & Dir. of Revenue, Case No. WD70973, 2010 WL 718551, at *11 (Mo. Ct. App.) (emphasis added).
Id. at *5 (emphasis added, footnote omitted).
So, the majority opinion defines “knowingly” using language originally taken from an unpublished federal district court decision that notes—explicitly—that it was applying the definition of “purposely” set forth in Spradlin. In so doing, the intended effect of the 2004 amendments are frustrated by rendering the sought-after expansion of cases in which attorney‘s fees may be awarded wholly illusory. Not only is such a construction to be avoided, see Liberty, 370 S.W.3d at 552; Cox, 98 S.W.3d at 550; Kilbane, 544 S.W.2d at 11, it is incorrect.
In the 2004 amendments to
To give the 2004 amendments their intended effect of expanding the category of cases in which attorney‘s fees may be
A person “acts knowingly,” or with knowledge,
- With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or
- With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.
A person “acts purposely,” or with purpose, with respect to his conduct or to a result thereof when it is his conscious object to engage in that conduct or to cause that result.
It is understandable why the General Assembly would look to definitions from the criminal law to draw a distinction in
knowingly adv. In such a manner that the actor engaged in prohibited conduct with the knowledge that the social harm that the law was designed to prevent was practically certain to result; deliberately. . . . A person who acts purposely wants to cause the social harm, while a person who acts knowingly understands that the social harm will almost certainly be a consequence of the action, but acts with other motives and does not care whether the social harm occurs. See culpability; mens rea. Cf. purposely.
Still, caution must be used lest an incorrect application of the definition of “knowingly” in
Knowledge that conduct constitutes an offense, or knowledge of the existence, meaning or application of the statute defining an offense is not an element of an offense unless the statute clearly so provides.
The definition of “knowingly” from
III. The Case Should Be Remanded for Application of the Proper Definitions of “Knowingly” and “Purposely”
As explained above, a defendant “purposely” violates the Sunshine Law when the defendant acts with the plan or purpose of committing such a violation. On the other hand, a defendant “knowingly” violates the Sunshine Law when the defendant knows that a particular record is requested and knows that it has not disclosed it—regardless of whether the defendant knows (or even reasonably should have known) whether the failure to produce the record constitutes a violation of the Sunshine Law.
Using these definitions, there was a basis in the evidence to conclude that the defendant in this case (the “City“) acted purposely, but there can be no doubt that the City acted knowingly. Accordingly, this case should be remanded so that the trial court can apply the proper definitions of “purposely” and “knowingly.” If the trial court does not find that a preponderance of the evidence supports the inference that the City “purposely” violated the Sunshine Law under
The long and short of the City‘s argument is that it did not know that its failure
Moreover, the City‘s “reasonable mistake of the law” defense does not preclude a finding that the City “purposely” violated the Sunshine Law because—long before the City‘s conduct in this case—this Court unambiguously held that the failure to disclose an investigative report under
Strake teaches that, when a defendant makes a conscious decision to violate the Sunshine Law to avoid violating a lesser obligation, it is inescapable that the defendant “purposely” violates the Sunshine Law. Strake, 473 S.W.3d at 646 (defendant subordinated its obligation under the Sunshine Law to a lesser obligation, i.e., a contractual duty of confidentiality). Here, there was evidence from which the trial court could find that the City was pursuing one (or both) of two such lesser obligations: (a) a local ordinance prohibiting disclosure or (b) the desire to protect itself from potential civil claims based on the actions of its employees. If the trial court finds that the City subordinated its obligation under
Accordingly, this case should be remanded so that the trial court can apply the proper definition of “knowingly” and the holding in Strake (which had not been decided at the time of the trial court‘s decision in this case) concerning “purposely.” If the trial court does not find that a preponderance of the evidence supports the inference that the City “purposely” violated the Sunshine Law under