On paper, Missouri’s Sunshine Law offers hope that if a citizen can prove in court that the government unlawfully denied a citizen’s access to public records or a public meeting, the citizen might recover the expenses they incurred associated with the lawsuit as well as limited civil penalties. In practice, however, it is very, very rare for courts to award expenses or civil penalties – although it does sometimes occur, as in our Cole County Prosecuting Attorney case. To win litigation expenses and civil penalties, the plaintiff must show that the government’s violation was “knowing” or “purposeful.”
But one month ago we saw a literally unprecedented turn regarding the Sunshine Law.
As our supporters will remember, last year we won a landmark victory for election integrity. That victory was only possible because the Freedom Center’s director of litigation, Dave Roland, successfully sued the St. Louis City Board of Election Commissioners to force it to produce the absentee ballot documents that allowed us to prove massive violations of election laws. Winning access to the records was only the first part of Roland’s Sunshine Law challenge – this summer he went to trial to show that the Election Board’s violations of the law had been “knowing” or “purposeful.” Even though the evidence showed that Roland had made the Election Board aware of the proper interpretation of the laws and that the Election Board had simply disregarded that interpretation, St. Louis City Circuit Judge Jason Sengheiser ruled that the Election Board’s violation was not knowing or purposeful – but then, without any explanation as to why, the judge ordered Roland to pay the Election Board’s court costs, a total of nearly $1,100!
This result is completely unheard of. The Sunshine Law is designed to encourage transparency and to give citizens an incentive to vindicate their rights when the government violates the law. Ordering a citizen to pay the government’s court costs in a Sunshine Law case that the citizen lost would significantly discourage citizens and non-profit groups like ours from taking on these challenges. But if courts can order a citizen or non-profit group to pay the government’s court costs even when the citizen won the case… it would almost be foolish to file a Sunshine Law case in the first place.
That is why today Roland appealed Judge Sengheiser’s ruling. If citizens are to keep their government transparent and accountable, we all need Missouri’s appellate courts to make clear that citizens seeking to vindicate their rights do not have to worry about being forced to bear the government’s litigation expenses as well as their own. We are confident that the Missouri Court of Appeals will reverse this absurd, anti-transparency result.