Missouri Supreme Court Chief Justice George Draper Archives

Missouri Supreme Court to hear key Sunshine law case on Wednesday involving costs for public records

February 2, 2021 By Brian Hauswirth

The Missouri Supreme Court will hear remote oral arguments on Wednesday in Jefferson City in a key Sunshine law dispute between GOP Governor Mike Parson’s office and a former Democratic candidate for attorney general.

The case is “Elad Gross vs. Governor Parson.” While there are several arguments in this case, the biggest one is whether public governmental bodies such as the governor’s office can charge costs for searching for and researching public records.

This case began in October 2018 when Elad Gross, who later ran for attorney general in 2020, sent a Sunshine request to the governor’s office regarding campaign contributions. The governor’s office said the request found more than 13,600 documents and would cost about $3,600 to produce and take up to 120 business days to provide.

Gross later amended his request and received about 60 pages, some of which were redacted.

Mr. Gross alleges that Governor Parson’s office charged excessive fees. However, then-Cole County Circuit Judge Patricia M. Joyce dismissed Gross’ case. Judge Joyce, a Democrat, has since retired.

Gross is appealing to the Missouri Supreme Court, which will hear the case Wednesday morning at 9. Counselor Gross wants the Missouri Supreme Court to rule that the governor’s office violated the state Sunshine law.

Mr. Gross has filed a 48-page brief with the Missouri Supreme Court, saying the governor’s office abused its discretion by acting arbitrarily and in not waiving or reducing fees with his first Sunshine request.

Gross also questions why he was being charged $40 per hour when state law calls for record production “using employees of the body that result in the lowest amount of charges for search, research and duplication time,” according to his brief.

Governor Parson’s office is being represented by Attorney General Eric Schmitt’s office. Deputy Attorney General Jeremiah Morgan has filed a 37-page brief with the Missouri Supreme Court.

Deputy Attorney General Morgan’s main argument involves the plain language of the Sunshine Law, saying it authorizes research time to be charged at the actual cost and does not require a waiver of those costs. Mr. Morgan also says closed and privileged material can be redacted from responsive documents.

Morgan also addresses Gross’ complaint about the $40 rate, saying the $40 per hour rate is the hourly rate of the lowest-paid attorney on the Governor’s staff. Morgan also says that research time is a major part of an attorney’s work.

“The fundamental question in this case is whether a public governmental body, such as the Governor’s office, can charge its actual costs for searching, researching, or duplicating public records, even if some or all of the research is done by an attorney that is an employee of the public governmental body. The answer is, unquestionably, yes,” Deputy Attorney General Morgan writes, in his brief.

Morgan says the governor’s office followed the Sunshine Law’s plain language, and he’s asking the Missouri Supreme Court to affirm Judge Joyce’s ruling.

This case is also attracting major interest from other groups, who have filed what are known as amici briefs. That means friends of the court.

Attorneys Bernard Rhodes and Brad Johnson represent the “Kansas City Star”, and attorneys Joseph Martineau and Lewis Rice represent the “St. Louis Post-Dispatch.” They’ve filed an amici brief.

“The Sunshine Law does not allow public governmental bodies to charge for time attorneys spend reviewing public records because no provision in the Sunshine Law authorizes such charges,” the newspaper attorneys write, in their 31-page brief.

The Missouri Press Association and the “Missouri Sunshine Coalition” have also submitted amici briefs.

The Missouri Municipal League, which represents about 650 municipalities across the state, has also filed an amici brief.

COVID will impact Wednesday’s oral arguments. Counselor Gross and Deputy Attorney General Morgan will argue their cases remotely, via zoom. Chief Justice George Draper will be the only Missouri Supreme Court judge in the Jefferson City courtroom. The other six judges will participate remotely.

The Missouri Supreme Court has been conducting remote arguments since the Lamar Johnson case in April 2020, due to COVID concerns.

High-profile overtime pay case for corrections officers heard by Missouri Supreme Court

April 22, 2020 By Brian Hauswirth

The Missouri Supreme Court heard remote oral arguments on Wednesday in a high-profile case involving the Cole County circuit court’s 2018 decision to award more than $113 million in overtime pay for Missouri corrections officers.

Missouri Supreme Court Chief Justice George Draper listens to remote oral arguments involving the corrections officer overtime pay case on April 22, 2020 in Jefferson City (photo courtesy of Missouri Supreme Court communications counsel Beth Riggert)

It’s a case that’s been working its way through the court system for eight years, and it’s a case that could have major implications across the street from the Supreme Court in Jefferson City, at the Legislature. That’s because of difficult budget times.

The key argument both sides emphasized on Wednesday is whether pre- and post-shift activities for corrections officers is compensable. The state attorney general’s office, which represents the Missouri Department of Corrections, says no. St. Louis attorney Gary Burger, who represents the corrections officers, says it is.

Wednesday was only the second time in history that the Missouri Supreme Court has held remote oral arguments. Due to COVID-19 concerns, only Missouri Supreme Court Chief Justice George Draper and a few staffers were in the Jefferson City courtroom. Chief Justice Draper faced a screen where attorneys participated by videoconference. The other six judges participated remotely via teleconference.

There were a few minor glitches, when Supreme Court Judge Laura Denvir Stith’s microphone cut in-and-out a few times. That was quickly fixed. State Solicitor General D. John Sauer had some audio issues early, and Counselor Burger briefly had difficulty finding his timer. Attorneys are allowed set times, for arguments.

Corrections officer Thomas Hootselle Jr. and other officers sued the DOC, on behalf of a proposed class of more than 13,000 officers, for allegedly failing to pay them under the Federal Fair Labor Standards Act for pre- and post-shift activities.

While labor agreements executed between the DOC and the Missouri Corrections Officers Association do not specifically address pre- and post-shift activities, Cole County Circuit Judge Pat Joyce ruled in 2018 that pre- and post-shift activities are compensable.

State Solicitor General D. John Sauer argues that the circuit court erred and that the case “involves a judgment imposing enormous liability on Missouri’s taxpayers without legal justification.”

Mr. Sauer cites a 1951 decision by the U.S. Supreme Court, about pre- and post-shift activities. He is asking the high court to reverse the Cole County Circuit Court’s decision.

“Because they’re quintessential preliminary and postliminary activities, not the work of consequence that these employees (corrections officers) are employed to perform,” Sauer tells the Supreme Court.

Solicitor General Sauer also says the trial court excluded testimony from the DOC’s damages experts.

Mr. Hootselle and the corrections officers are represented by Mr. Burger. During his oral arguments, Counselor Burger emphasized the main points in his 135-page brief to the high court. He says the class of more than 13,000 Missouri corrections officers “risk their lives every day maintaining safety and security at appellant Missouri Department of Corrections’ prisons.”

Burger says the DOC requires its officers to perform pre- and post-shift activities that are critical to prison safety and security, but has refused to pay the officers for those activities. He also says the time between shift changes, when pre- and post-shift activities happen, “are often when prisoners attack others, try to escape, or try to smuggle contraband.”

“You can’t escort offenders within a prison without getting the equipment first,” Burger tells the Missouri Supreme Court. “Without getting the handcuffs, without getting the radios or the keys or the appropriate equipment.”

Chief Justice Draper requested additional memos from Solicitor General Sauer and Counselor Burger, as arguments concluded. There is no timetable on when the Missouri Supreme Court will issue its decision.

High-profile corrections officer overtime case heads to Missouri Supreme Court on Wednesday

April 21, 2020 By Brian Hauswirth

The Missouri Supreme Court will hear remote oral arguments on Wednesday morning in a case involving a lower court’s decision to award more than $113 million in overtime pay for Missouri corrections officers.

Missouri Supreme Court Chief Justice George Draper listens to oral arguments in the Lamar Johnson case on April 14, 2020 in Jefferson City. Because of COVID-19 concerns, it was the first time in history the court held remote arguments (photo courtesy of Missouri Supreme Court communications counsel Beth Riggert)

Because of COVID-19 concerns, only Missouri Supreme Court Chief Justice George Draper is expected to be in the Jefferson City courtroom on Wednesday. He’ll face a screen through which attorneys will participate remotely by videoconference. The other six judges will be participating remotely via teleconference. You will be able to listen to the oral arguments live on the Supreme Court’s website.

This will only be the second time in history that the Missouri Supreme Court has used remote arguments. The first time was last week in the Lamar Johnson case.

Wednesday’s oral arguments are scheduled to begin at 9 a.m.

Following a jury trial, Cole County Circuit Judge Pat Joyce awarded the money to the corrections officers, and has also ordered the Missouri Department of Corrections (DOC) to pay for pre- and post-shift activities for officers, such as time to pick up and return radios and inventory weapons.

A corrections officer named Thomas Hootselle Jr. and other officers sued the DOC, on behalf of a proposed class of more than 13,000 officers, for allegedly failing to pay them under the Federal Fair Labor Standards Act for pre- and post-shift activities. Labor agreements executed between the DOC and the Missouri Corrections Officers Association do not specifically address pre- and post-shift activities.

The Cole County circuit court has ruled that pre- and post-shift activities are compensable.

The DOC is being represented at the Missouri Supreme Court by the state attorney general’s office. In its 127-page brief, state Solicitor General D. John Sauer says the court erred in its decision and ruled in favor of the corrections officers after a one-sided jury trial. Sauer says only the corrections officers were allowed to present expert evidence.

“This case involves a judgment imposing enormous liability on Missouri’s taxpayers without legal justification,” Sauer writes in his brief to the Missouri Supreme Court.

Mr. Sauer is asking the high court to reverse the circuit court’s decision.

Mr. Hootselle and the corrections officers are represented by St. Louis attorney Gary Burger.

In his 135-page brief to the Missouri Supreme Court, Mr. Burger says the class of more than 13,000 Missouri corrections officers “risk their lives every day maintaining safety and security at appellant Missouri Department of Corrections’ prisons.” He says the DOC requires its officers to perform pre- and post-shift activities that are critical to prison safety and security, but has refused to pay the officers for these activities.

“The officers’ claim here is simple: MDOC must pay guards for guarding,” Burger writes.

Counselor Berger also says that the time between shift changes, when pre- and post-shift activities happen, “are often when prisoners attack others, try to escape, or try to smuggle contraband.”

The class action lawsuit began in 2012, and the circuit court issued its ruling in 2018.

While the Missouri Supreme Court will hear the case on Wednesday, there is no timetable on when they will issue a decision.

Missouri attorney general and St. Louis circuit attorney on different sides in Lamar Johnson case

April 14, 2020 By Brian Hauswirth

An attorney for a convicted St. Louis murderer who’s served 25 years in prison tells the Missouri Supreme Court that evidence shows that the inmate did not kill Marcus Boyd in 1994.

46-year-old Lamar Johnson is serving a life sentence for first degree murder at the Jefferson City Correctional Center. St. Louis Circuit Attorney Kim Gardner has filed a motion for a new trial (2019 file photo courtesy of the Missouri Department of Corrections)

The Supreme Court heard historic oral arguments in Lamar Johnson’s case on Tuesday, with six judges participating remotely, due to COVID-19 concerns. Attorneys also participated remotely, via videoconference. Only Chief Justice George Draper was in the Jefferson City courtroom.

It’s the first time the Missouri Supreme Court has used remote arguments.

Attorney Lindsay Runnels represents Johnson, who is the appellant in this case. The Midwest Innocence Project in Kansas City is also involved in Johnson’s defense.

St. Louis Circuit Attorney Kim Gardner has filed a motion for a new trial, saying there is credible evidence that Johnson is innocent.

Gardner is an intervenor in the case. She was represented Tuesday by attorney Daniel Harawa, who says Johnson is innocent and that the circuit attorney has filed for a new trial, as a minister of justice.

“If a prosecutor abused the power of their office to wrongfully convict an innocent person, then a prosecutor must be able to use her office to seek to undo that conviction,” Harawa says.

The Missouri attorney general’s office opposes Gardner’s motion for a new trial. The attorney general’s office says the circuit court has no jurisdiction to consider Gardner’s motion, especially at this late date.

In their 52-page brief, Attorney General Schmitt’s office writes, in part, “This court’s rule 29.11(b) provides that, in a criminal case, (a) motion for new trial … shall be filed within fifteen days after the return of the verdict.”

Johnson was sentenced to prison in 1995.

The chief counsel for criminal appeals for the attorney general’s office, Shaun Mackelprang, argued before the Supreme Court.

“A jury found him (Johnson) guilty, found him guilty of murder in the first degree and armed criminal action. To this day, there has not been a hearing with any evidence presented showing that he is, in fact, innocent,” says Mackelprang.

Mackelprang also says that in a criminal case, only the defendant can file a motion for a new trial.

The case involves allegations of St. Louis police and prosecutorial misconduct. Johnson’s lawyers allege that an eyewitness’ 1994 identification of Johnson “was manufactured and false,” and that the state paid the eyewitness to identify Johnson.

We also learned new details about Johnson’s request on Tuesday, including the revelation that Circuit Attorney Gardner isn’t ruling out requesting a pardon for Johnson from Governor Parson.

Supreme Court Judge Zel Fischer asked Counselor Harawa about that.

“Counselor, why hasn’t the circuit attorney joined with the defendant in requesting the governor to issue a pardon,” Fischer asks.

Harawa responded by saying they’re not ruling it out, but emphasizes they’re focusing on seeking a new trial for Johnson and that the state “engaged in misconduct.”

The Johnson case has received nationwide media attention, and there have been numerous amici briefs that have been submitted to the Missouri Supreme Court.

A group of 45 elected prosecutors from across the nation have filed an amici brief, which says Circuit Attorney Gardner must have a legal mechanism to seek a new trial for a defendant, “when newly discovered evidence shows the conviction was tainted by constitutional violations.”

But a group of 30 elected Missouri prosecutors disagrees, and has also filed an amici brief. They say the circuit attorney’s office has no authority to file a motion for a new trial in a criminal case, on the defendant’s behalf.

There is no timetable on when the Missouri Supreme Court will issue its decision.