The Missouri Court of Appeals Eastern District on Feb. 5 issued a mixed ruling in a Sunshine Law dispute involving absentee ballots cast in the August 2016 democratic primary race between Bruce Franks Jr., now the state representative in District 78 in St. Louis, and Penny Hubbard, the longtime incumbent he ousted.
In the unanimous opinion authored by Judge James M. Dowd, the panel ruled that the circuit court should not have ordered the release of absentee-ballot applications from that race but was correct to order the release of absentee-ballot envelopes. In addition, the panel ruled, the clerk was correct to tax the plaintiff’s attorney, Dave Roland of the Freedom Center of Missouri, $1,085 for attorney’s fees and costs.
In the 2016 race at issue, Hubbard initially beat Franks by 90 votes after getting a large number of absentee votes. To determine if those absentee votes were fraudulent, Frank’s attorney, Roland, used a lawsuit filed earlier under the Sunshine Law to convince a St. Louis Circuit Judge to order the St. Louis City Board of Election Commissioners to release the absentee-ballot materials.
Franks then used those materials to sue for a new election, arguing that the board had not properly handled those ballots. A judge ordered a new election. Franks won.
Typically, the panel wrote, the Sunshine controversy would have been moot because the board already had released the requested materials. Yet the panel said it decided to issue an opinion anyway because access to election records is of “general public interest and importance,” and because the same issues are “likely to reoccur in our trial courts.”
According to the opinion, the legislature has mandated that in the run-up to an election, the board will accept absentee-voter applications. They include an applicant’s home address, his or her reason for wanting to vote absentee and other information. Meanwhile, the board also must create a running list of those applications, setting out each applicant’s name, voting address and mailing address.
Up until 8 a.m. on the Friday immediately preceding the election, the board must keep confidential the applications, any information in them and the running list. After that precise hour, though, the statute mandates that the lists be released but only to certain authorized persons, such as campaign workers.
“In this way,” the panel wrote, “the legislature struck a balance between open records and privacy concerns with regard to absentee voters’ personal information.”
The statute addresses only what should happen to the lists after the pivotal 8 a.m. time; it is silent, however, on what should happen with the applications themselves.
Roland argued the legislature’s silence on that point, combined with its mandate that the Sunshine Law be “liberally construed,” means the applications should be released in that circumstance.
The panel, however, found that to be “an absurd and unjustified” interpretation.
“It would be incongruous to conclude that after 8:00 a.m., the legislature intended on the one hand to lift the confidentiality veil from the lists and make them available only to a limited class of interested persons, while on the other hand . . . to make available the entirety of the absentee ballot applications, which contain more information than the basic information found in the lists, including private and sensitive information, to the whole public.”
In an interview after the decision, Roland argued that the court cited no authority for declaring a person’s name and address to be private and sensitive. Both used to appear regularly in phone books, he said.
Roland also contended that while his reading of the statutes would indeed lead to a “weird double standard,” the courts “have an obligation to construe exceptions to the Sunshine Law strictly, applying the statutes as currently written, even if it may not make sense to the courts.”
The board’s attorney, James C. Hetlage of Lashly & Baer, declined an interview request.
With respect to the attorneys’ fees and costs, the panel observed that in this case, the trial was bifurcated. In the second stage of the trial, Roland alleged that the board knowingly and purposefully violated the Sunshine Law. He failed to convince the judge, however, so the clerk taxed Roland the $1,085 in attorney’s fees and costs. Roland did not file a motion to retax, the panel found, and so did not preserve it for appeal.
The case is Roland v. St. Louis City Board of Election Commissioners et al., ED106192.