EP 612- Fighting for Constitutional Rights Part Two

Episode Notes

Transcript

Announcer:

Welcome to The Jury Is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney Erich Vieth.

Erich Vieth:

Welcome to another episode of The Jury Is Out. I’m Erich Vieth. I’m here again with Dave Roland. Welcome back, Dave.

Dave Roland:

Thanks so much.

Erich Vieth:

Maybe this is a good chance to segue into a case that deserves and probably gets a lot of attention right now, the case involving Michael Gross, who’s an appellate attorney against the state of Missouri. And when I read about the law that was about to come down requiring vast work to redact certain information from all filings, I thought this is insane. You don’t have to

Dave Roland:

Answer this, but- You were absolutely

Erich Vieth:

Right. You don’t have to answer this, but the first question in my mind is, who would’ve wanted this? Who in the heck decided that this is a good idea, especially when you read your petition. You were one of several attorneys working on this case, but there were attorneys, for instance, Michael Gross and others who don’t have a vast law firm where you can hire 18 paralegals and secretaries to be scratching away at a lot of the filings before … And then how do you know who’s talking about whom in the course? So I’m going to just turn it over to you. Who was hurt by this? Who would’ve been hurt? How would they have been hurt? And tell us a story about what happened.

Dave Roland:

Well, so I think at the outset, I’ll defer to some of the excellent post-dispatch reporting on this issue. Basically, the provision that required all of these redactions was being pushed by one particular state representative who had apparently been very upset that one of his political opponents had looked back into CaseNet and found some cases that had been brought against this state representative. And he did not like that his opponent was publicizing some of the information from these earlier cases. So he proposed this amendment that would require any filings with the courts to redact information about witnesses and victims of crimes. And also, it prohibited the courts themselves from including that information in written opinions or orders, which by the way, is a pretty extraordinary step for the legislature to take to dictate to the courts what information they are allowed to include in their own judgments.

But that’s exactly what this provision did.

Erich Vieth:

And I should mention it’s 509.520.1. If you want to go take a look, that’s what would have been the law, had this statute not been contested by you and your co-counsel.

Dave Roland:

So as we proceed, let me talk a little bit about my co-counsel because this case has been one of the great joys of my career to litigate because I had an astonishing team of compatriots working on this issue with me. The issue was first raised about fighting a case on this by former Missouri Supreme Court judge, Mike Wolf. So Mike Wolfe called me up. He said, “Dave, I know you’re aware of this statute that just got adopted requiring the redaction of this information. We’re looking to put together a team to challenge it. ” And he told me that there were some attorneys at Thompson Coburn that wanted to be on the field for that. That former Solicitor General Jim Layton was on board and he was asking me if I wanted to be part of that team. And I said, “Show me where to sign up.” I mean, I was excited to be able to be part of this.

And it really was one of the best assemblages of legal talent I’ve ever had the privilege of working with. We filed the lawsuit in Cole County arguing that it was unconstitutional under several different theories, the most prominent of which is the first amendment. And we pointed out that going back until the earliest days of the Republic, it had always been understood that the judiciary was the most transparent branch of government, that when people wanted to know what was going on in their society, they could always go to the courts and find out who is suing whom and under what theories, what witnesses testified, who did the courts find to be credible, and who did they not find to be credible? Who was acting in ways that the court thought worthy of sanction and who was not? All of this information was available through our judicial system.

And in addition to just the basics of how societies were functioning, court records have also been a tremendous resource for journalists and historians. So journalists who needed to know what criminal cases had been brought or things like that so that they could share that information, they could always go to the courts and get that information. Historians trying to piece together the story of our past could go back. We’re just now getting a new exhibit downtown in St. Louis about the freedom lawsuits that were instrumental in helping to bring about the end of slavery in the United States. And part of the reason that they can tell the stories that they can now is because we have such fantastic and detailed records from our courts. And this statute would eliminate all of that information. It would make it very difficult to get any of that information.

And so the first amendment we believed clearly protected individual’s right to access this information through the courts. But also Missouri has a particular provision of its constitution called the open court’s provision. It’s Article one, Section 14. And other states with very similar provisions had come to the conclusion that it’s not just the first amendment that guarantees citizen access to this judicial information, it’s also the open court’s provision. So we included that in our lawsuit as well. Fortunately, the circuit judge saw it our way and issued a ruling that the redaction statute was in fact unconstitutional under the First Amendment and under the open court’s provision. And the Attorney General’s office has decided that they are not going to appeal that decision. And so it is now a final judgment and this statute is no longer enforceable. And so I was thrilled with the result, thrilled with the team that I got to work with in bringing that result about, but most importantly, thrilled for the people of Missouri that once again, they’re going to have access to the judicial branch and to this crucial information about our society and how it’s operating.

Erich Vieth:

I did mention that if you bring a suit under the Missouri Constitution, you’re not entitled necessarily to attorney’s fees. Here they were awarded and was this purely a declaratory judgment or was there something else going on in this case?

Dave Roland:

So it was a declaratory judgment action. We also had an injunction. We were asking the court to enjoin the state and its subdivisions from enforcing this provision. We asked for attorney fees under section 1983, the Federal Civil Rights Act. And so that was the vehicle that the court used to award attorney’s fees in that case.

Erich Vieth:

Got it. So even though it was in state court, it was based upon the federal law.

Dave Roland:

So when Congress wrote the Civil Rights Act of 1871, they did specify that these cases could be heard in either state or federal court. And so for example, I brought a case in Phelps County, Missouri, dealing with a woman who had been kicked out of city hall because they didn’t like the fact that she had been criticizing their local government officials. And that case was filed under 1983, even though it was filed in state court and litigated entirely in state court. And the court did award attorney’s fees in that case as well.

Erich Vieth:

When I was reviewing your petition, I saw that you did a deep dive and you found other Missouri constitutional provisions that you wanted to argue. They were not the end result. The court didn’t rely on them, but I was thinking as I read those, for instance, if you pass legislation, you should have separate topics come out in certain bits of legislation. Things that like that I thought there’s a lot of gold in the Missouri Constitution and it’s worth a while just to sit back and read and see what’s in there. It doesn’t take that long to read through the Missouri Constitution, but you did have a number of arguments here that were not relied upon by this court, but might be good in other cases.

Dave Roland:

Absolutely. And we raised those issues in hopes that if the First Amendment claim was unsuccessful, that the court might fall back on them. One of the ones that I felt very passionate about was Article five, Section five of the Missouri Constitution, which gives the Missouri Supreme Court the role of authority over the practice of law and the way that courts are going to operate in the state. It does leave the door open for the legislature to amend rules adopted by the Missouri Supreme Court. But if the legislature is going to exercise that authority, it has to do it in a very particular way. And what we had with this redaction statute was the legislature dictating to the courts and the legal profession how it was supposed to operate. And in fact, that’s supposed to be the province of the Missouri Supreme Court. I really liked that argument and ultimately the court didn’t need to get to it because of the way it resolved this.

I’m keeping that argument in my hip pocket just in case it should present itself in a future situation because I do think that courts need to zealously guard against the intrusion of the other branches of government. Another important, invaluable provision of the Missouri Constitution is Article two, which is our separation of powers provision. And it specifies that no individual or collection of individuals that belong to one branch of government should exercise the powers that belong to another branch of government. I’ve criticized our state attorney general, Andrew Bailey, on this because there have been a couple of proposals in the last few years where he has proposed regulations of certain industries, whether it be doctors or whether it be social media, and he’s basically presumed that he can impose these rules by fiat. And in effect, what he’s doing is trying to legislate. Well, that’s a legislative power that belongs to the legislative branch.

And Article two of the Missouri Constitution says that as an executive officer, he should not be allowed to make law like that. That’s the province of the legislature. Perhaps that’s going to come up in a case at some point, but you’re right. The people that framed the Missouri Constitution were working from a wealth of experience. They had seen some of the pitfalls that occur if you do not put appropriate boundaries on how the government operates. And that’s why we have some of those protections written in. I am litigating a case right now dealing with a specific restriction that the Missouri Constitution imposes on the legislature that deals with a clear title. So one of the things that the people of Missouri realized is that legislatures can get up to a lot of shenanigans when they think that no one is looking. And they might engage in a practice called law rolling, where they take one bill that is very, very popular and that no one wants to vote against, and they start to amend to that bill ideas that are not nearly as popular and probably couldn’t pass on their own if they were forced to be dealt with on a separate issue.

But if you can tie them to this very popular issue, well, no one wants to vote against that. And so they get adopted even though the ideas themselves may not actually have the support of a critical mass of the legislature.

Erich Vieth:

Was that the case with this redaction?

Dave Roland:

No. Well, we raised the issue in Gross v. Missouri, but that was not an issue that we prevailed on in that case.

Erich Vieth:

I was wondering though, in the legislative process, was that redaction provision kind of tacked onto something of the other packet?

Dave Roland:

Yes. Yeah. No, that’s a great question. So the representative who wanted that amendment slipped it in at the very last moment. The redaction issue was never heard by a committee of the legislature. It was never debated. It was just slipped into this bill at the last moment and passed because everyone was going to vote for this bill anyway. That again highlights the risks of not having appropriate limits on how the legislature can do its job. So this other case talks about whether there is a clear title. And the clear title requirement is intended to make sure that not only members of the public, but members of the legislature are adequately appraised of what’s in a bill because thousands of bills are filed every legislative session. And I mean thousands, like more than 2,000 bills for each of the last several legislative sessions. No individual legislator can look through all 2,000 bills.

It’s not possible. No citizen could look through all those bills. And so they rely on the titles that are given to those bills to say, “Here’s what’s in here.”

To let you know, raise a flag, “Hey, maybe there’s an issue of importance to you that you want to look at this bill and maybe offer commentary, or if you’re a legislator, make sure that you’re carefully vetting this before you vote on it. ” The clear title provision is intended to make sure that legislators and the public have that kind of forewarning of a bill as it progresses through the legislature, so that they will not have to search through all of these bills to find the ones that impact their interests. The courts have not been as aggressive in enforcing this provision, however, but they do have limits. And one of those limits the court mentioned a couple of years ago is that saying that a bill relates to public safety does not satisfy the clear title requirement. Now, the court says this in dicta because the plaintiff in that case had not raised a clear title claim.

They had raised a couple of these other procedural claims. So in other words, they had raised the question of, did the final bill deviate from the original purpose? Were there more than one subjects included in the bill? Those were the claims that the plaintiff had raised. They did not raise a clear title claim. And the Missouri Supreme Court says, “Well, if you had raised a clear title claim, you probably would’ve won because saying that this bill relates to the public safety doesn’t really narrow it down. Almost anything the legislature does might reasonably be considered something having to do with the public safety.” So you’re not adequately clarifying the contents of the bill and thus you’re not satisfying the purpose of the constitutional provision, but that was only dicta. And so the legislature in the intervening years has continued each year to consider a few bills where it says this is a bill relating to public safety.

And so on behalf of a group called the Article three Institute, which is focused exclusively on making sure that these procedural protections built into the Missouri Constitution are enforced, we filed this lawsuit that says, “You know what? Just saying that a bill is related to public safety cannot satisfy this constitutional requirement. You have to provide greater clarity in order to satisfy the constitution.” I’m actually working up towards filing a motion for summary judgment in that case right now. And so we will see what the lower court does with it. I feel pretty good that when you have the Missouri Supreme Court specifically saying, even if only in Dicta, yeah, we’ve already said that public safety is not sufficiently clear to comply with this provision. I’m hopeful that the circuit court’s going to say, “I’m going to treat that as adequate guidance, but there are no guarantees.” And so we’ll have to see now that they’re actually being squarely confronted with the question, whether or not the courts agree with what the Missouri Supreme Court said a couple of years ago or whether they’re going to maybe go a different path.

Erich Vieth:

We’ve covered a lot of territory already, but the Freedom Center of Missouri does a lot of things. What would you say is the tent? If someone said, “What do all your or most of your cases have in common?” What’s your response to that?

Dave Roland:

Well, so the primary focus of the Freedom Center is to secure individual liberty and also to make sure that citizens are equipped to play their role in our self-governing society. So when we started out, we were focused primarily on constitutional protections for individual liberties, such as the freedom of expression, the free exercise of religion, economic liberty and property rights. But one of the things that we saw about five years into the organization’s existence was that people were having a lot of difficulty getting access to public records and public meetings. And part of the reason that this is important is, as I mentioned, we are a self-governing society and in order for citizens to equip themselves to make the decisions that they need to make in terms of who’s going to represent them in government or what policies they want to support, they need to know what the government is doing with the authority that the people have given them, with the taxpayer resources that the people have given them.

And when the government is stonewalling citizens, it is preventing them from playing their proper role. So at that point, we decided that the Freedom Center would expand its mission to include government transparency and accountability. We launched that initiative with a half dozen cases that focused on what are known as multi-jurisdictional drug task forces. These are exceptionally powerful entities in that they have statewide jurisdiction and also it’s not always clear who is operating or to whom the task force answers. So by way of analogy, if you’re talking about a normal local police force or sheriff’s department, you know where the buck stops, right? You know who the chief of police is, you know who the sheriff is. And if something comes up where you’ve got a problem with one of the officers in your local law enforcement agency, you know to whom you need to go to have that problem addressed.

With a multi-jurisdictional task force, none of that was clear. Again, they have statewide jurisdiction. They did not publicize who their operating board was, much less who the head of that board was, and it wasn’t in any way clear. How do you hold accountable the members of these task forces if and when they went beyond their proper authority?

Erich Vieth:

Are these within the state of Missouri or multi-state?

Dave Roland:

Yes, these are within the state of Missouri. So typically they would operate with the participation of several local law enforcement units from cities or towns, and then they would work alongside county sheriff’s offices. And then sometimes you would have participation from, for example, the state highway patrol or potentially even from federal agencies. But again, none of that was really clear. None of that was obvious from the outset. One of the things that we wanted to accomplish by filing these lawsuits was to bring them into the light, to make clear citizens do have, in fact, a way of understanding what these kind of shadowy organizations are doing and also how people can act to hold them accountable if and when such accountability is deemed to be advisable. And we got a lot of pushback from those task forces. Of the roughly two dozen task forces that were operating in the state at the time, half of them said they were not accountable to the Sunshine Law at all, which is why we had to file the lawsuits.

Erich Vieth:

And they are public entities

Dave Roland:

Though.

Erich Vieth:

They’re operated by government employees of some sort.

Dave Roland:

Absolutely.

Erich Vieth:

And so what was their reason for saying they’re not amenable to the Sunshine Act?

Dave Roland:

Well, they didn’t want to be. I mean, honestly, there was no valid explanation. The one case that we did not prevail in, in that a set of cases was a case in which the drug task force was actually being led by an agent from the Federal Alcohol, Tobacco and Firearms Department. And the court determined that because even though the officers that were filling out the task force and carrying out the operations of the task force, even though they were state and local law enforcement officials, because it was being led by a federal officer, the court deemed that to be a federal task force, therefore, not subject to Missouri Sunshine Law.

Erich Vieth:

I’m just imagining in my head, you bring the FOIA, then they’ll say, “We can’t give you a FOIA because there’s-“

Dave Roland:

That is exactly what happened, Eric. So my client, Aaron Mallon, when the court said, “Well, this is a federal agency,” he went and he asked for the very same records under FOIA. It took four or five years for the federal government to finally come back and say, “Yeah, we don’t have any records related to this organization.” So that organization in any event is still able to operate in the shadow, but some of the other organizations took more innovative approaches. So for example, St. Louis City had a drug task force and we knew that they had a drug task force because hundreds of thousands of dollars every year were being allocated to the task force. And yet when Aaron asked for the records, they said, “Well, what task force are you talking about? ” Arin actually got a response from an attorney in St. Louis City who said, “I have talked to the chief of police and we can’t for the life of us figure out what you’re even talking about.

We have no idea what you mean when you say St. Louis City Drug Task Force.” What

Erich Vieth:

Was your basis for thinking these are real entities?

Dave Roland:

Because maps had been published showing the different task forces that were in operation across the state. And we had an idea of how much money was being allocated, but we didn’t have the documents to back that up.

Erich Vieth:

Is it local money or state money or some combination?

Dave Roland:

A combination, but primarily federal funds being passed through the State Department of Public Safety to these local agencies. So when this attorney contacted Aaron and said, “Yeah, we can’t figure out what you might even be talking about. I can’t give you records of an organization that doesn’t exist.” We kind of let it go a little bit, but then two months later, Erin gets records from the State Department of Public Safety and lo and behold, they are grant applications for an organization that was titled St. Louis City Drug Task Force. Beyond that, Erich, when you looked at the name, in order to submit the application for funding, somebody has to sign off on this. Would you care to guess whose signature was affixed to these applications? The attorney who said that he couldn’t imagine, he couldn’t figure out what possible organization Arin might have been talking about.

So Aaron sends this attorney copies of the applications that this attorney had signed and said, “How could you possibly not have known of the existence of this organization?” He didn’t respond. “We sued. We sued that they had withheld records of an organization that clearly existed. “And this gives you a little bit of an idea of what kind of a challenge fighting these transparency cases can be. Missouri has a very good sunshine law on paper. The bear can be getting the courts to enforce it, particularly when it comes to finding knowing our purposeful valuations, which is what unlocks attorney’s fees if you win these cases. We had 14 counts in that case. The court found for us on 13 of the 14, but because the court held that the individual attorney who was responsible for the misrepresentations could not be considered to be a reasonable attorney, he found that there had been no knowing or purposeful violation, therefore we did not get attorney’s fees.

Erich Vieth:

Oh, it’s like someone acted outside of their scope and courts

Dave Roland:

And something like that. That’s the gist of what the judge said in that case.

Erich Vieth:

Ouch. So it’s reminding me of, I was a philosophy major. It sounds like an ontology issue. When is a thing a thing? And it seems like it should be really easy when you’re talking about a government entity of some sort doing something that you … It shouldn’t be this hard to find out who it is and that it’s got a name and it’s real.

Dave Roland:

Oh, I absolutely agree. So what the city ended up arguing in that case is that, well, inside the police department, they called it something else. And one of the other quirks is when Aaron was first trying to get the records, he suspected, well, maybe they call it something else. And so he actually submitted a request trying seven or eight different permutations of St. Louis City Drug Task Force, Metro Task Force. He tried all of these different combinations hoping that maybe he could hit the magic words. And that’s when the attorney came back and said,” Yeah, we just have no idea what you could possibly be talking about. “That I think should have been the trigger saying,” Look, it’s clear that they were intentionally covering up the existence of this organization. They were trying to hide behind semantics. And under the Sunshine Law, you shouldn’t be allowed to do that, but the court did not hold them accountable in that particular instance.

Erich Vieth:

So my experience with the Sunshine Act is increasingly over the years so that I occasionally use it now and I’m kind of amazed when it works. I shouldn’t be amazed. It’s a law. It’s there for a purpose. It’s very clear in many cases what the entity should do. And quite often they respond and they give you what you ask for. And that’s wonderful. And then sometimes it gets gummed up and now you’re in for the long haul. You got to riot herd. But what’s your experience about your use of the sunshine law?

Dave Roland:

Funny you should use the word long haul, Erich. Next week, we will reach the 10-year anniversary of one of my clients requesting records from a particular government entity. The courts fairly quickly found not only that the government entity was required to provide us the records, but that the person in charge of that entity had purposely violated the Sunshine Law by refusing to search for the records in the first place. We have gone up and down the Missouri Court system for a decade. And in 2023, we finally got a definitive judgment from the Court of Appeals saying, yes, they have to search for and produce these records that my client requested. Erich, they still have not finished searching for and producing those records. Last July, the Circuit Court told them that no later than, nor less frequently than the end of each month, the defendant in this case had to provide us a copy of a log that showed what records had been searched, how many records had been searched, how many were left to search, and then to produce any responsive records that had been found.

And they just haven’t complied. This was eight months ago. Out of those eight months, maybe two of them, they made even any effort to comply with the court’s order, but we had to file a motion for civil contempt. That’s going to be heard by the court next Tuesday. That is an extreme example, but in general, it’s indicative of what these transparency cases can be like. They can stretch for years. And even when you win, it can sometimes feel like a pieric victory. Like for example, the St. Louis City case, we litigated that case for three years. And I thought that we made a really effective showing that they absolutely knew what they were supposed to do under the law and they just chose not to do it. And yet, even though we won the case, we did so at great expense that we were not able to recoup even though the Sunshine Law allows for attorney’s fees in certain circumstances.

But again, that’s why we need public interest organizations carrying on these fights because ordinary citizens don’t have anything like the financial or emotional resources to fight these battles unless they’ve got a public interest firm to fight on their behalf. You know, as well as I do, and many of the listeners to this podcast will know, litigation is expensive. And if there is the risk that you’re not going to recover your attorney’s fees at the end, as in all of these cases, there’s a very real risk that you will not recover them. What incentive does a citizen have to really push for their rights? There was a case up in Scotland County where a gentleman who did have significant financial means spent, I believe, on the order of $200,000 fighting a Sunshine Law case. He won and got a finding that there was a purposeful violation of the Sunshine Law and the court only authorized $30,000 in attorney’s fees.

So this guy is Out $170,000 and he won exactly what you’re supposed to win to recover those attorney’s fees. Again, the challenge for a lot of citizens is they have to do an economic calculation about what are their rights worth. And part of the reason the Freedom Center took on this issue and does the work that we do is to remove that limitation from people to make sure that they’re going to have the best possible legal representation they can get fighting for their rights under the Sunshine Law, even if we never get to recover attorney’s fees from those cases.

Erich Vieth:

Tell me more about your business model. Do you present yourself as a nonprofit where people don’t owe you money, might or might not take their case, and then how does that bear out?

Dave Roland:

It’s calling it a business model may be a little bit optimistic, but the reason we got into this fight as a nonprofit is because we knew the importance of the issues that we were fighting for, and we believe that people should not … Their constitutional rights should not be contingent on their ability to pay for representation. And we are a 501 nonprofit. And so donations to the Freedom Center are tax deductible, but quite honestly, our annual budget Budget is usually less than $50,000. And we are taking on a number of cases that similar organizations in other states would only do if they’ve got a budget of a million and a half per year and a staff of several attorneys fighting on these issues. But Jennifer and I do this because we’re passionate about the ideas. I am not a materialistic person. I can get by myself on very little.

And so I’m quite happy living in my in- law’s basement, but it’s not for everybody. It’s not something that everybody could do. But it’s one of the things that I really take pride in is a lot of people might be able to make a lot more money with the work that they do, but I don’t know that they could say that they accomplished the good that they do for society. And therefore, I don’t know that they could say that they sleep as well as I do at night. I am thrilled with what I do in my career. I really believe that the work that we’re doing is for the benefit of all Missourians, and that is what I need more than anything else. And so I’m happy to be able to work for the relatively small amount of money that we do if it means that I get to pursue the cases that I feel are truly important, that I’m able to pursue them in the way that I think that they need to be pursued.

Erich Vieth:

Other than you and Jennifer, are there any other people that do the work of the Freedom Center?

Dave Roland:

No, we do have a board of directors that advises us, that approves and disapproves the cases that we take on. But as far as staff, Jennifer and I are it. We talked at various points in time of if the resources were to become available, how might we expand our staff? But for the time being, it’s just the two of us. And quite frankly, it works pretty well that way as far as we’re concerned.

Erich Vieth:

That’s awesome. So you’ve been in business as the Freedom Center for Missouri since what year?

Dave Roland:

2010.

Erich Vieth:

So you’ve got a good track record now, 15 years of doing the work you’re doing. We’re going to pause the conversation at this point. Thanks so much, Dave, joining us. There’s a lot more to talk about though. I appreciate you coming back for another round of these topics, the types of cases handled by the Freedom Center of Missouri. So again, thank you for joining us to this point and we’re going to see you back again.

Dave Roland:

Absolutely thrilled to be here.

Erich Vieth:

This has been another episode of The Jury Is Out. This is Eric Vieth. We’ll see you next time.

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