Attorney General Schmitt won’t defend Missouri House in Sunshine Law case
Attorney General Eric Schmitt has recused his office from defending the state in a lawsuit alleging the Missouri House is unconstitutionally violating the Sunshine Law.
Schmitt’s spokesman declined to comment on the reasoning. The lawsuit, however, cites a letter from the attorney general’s office critical of Missouri Gov. Mike Parson for withholding certain records from the public in a way similar to the Missouri House.
The recusal marks the second time in the last two years that the state has had to hire private attorneys to defend lawsuits challenging alleged violations of Missouri’s Sunshine Law. Last year, then-Attorney General Josh Hawley opted to sit out a lawsuit challenging the use of the self-destructing text message app Confide by former Gov. Eric Greitens.
The Confide lawsuit is ongoing, and taxpayers have thus far spent more than $400,000 on a team of six attorneys from the Bryan Cave law firm to defend the governor’s office.
“Good lord. That’s insane. That is absolutely insane,” said David Roland, director of litigation the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency. “The idea that the taxpayers are on the hook for that much money is just ridiculous.”
Dana Rademan Miller, chief clerk of the Missouri House, told The Star that when she and House leaders learned the attorney general’s office would not be taking the case, they began looking for ways to keep the cost of the litigation down.
Two attorneys from the Jefferson City firm Ellinger & Associates LLC agreed to lower their fees, Miller said, and defend the House in the lawsuit filed in late October by the nonprofit Sunshine and Government Accountability Project.
Marc Ellinger and Stephanie Bell will be paid $280 an hour — half by the Missouri House and half by the state’s legal expense fund administered by the attorney general’s office.
“The House will be paying the $140 an hour and nothing more than that,” said Trevor Fox, House communications director.
Constituent privacy
The lawsuit challenges House Rule 127, approved by lawmakers earlier this year. It states that legislators can “keep constituent case files, and records of the caucus of the majority or minority party of the House that contain caucus strategy, confidential.”
The rule was in direct response to the “Clean Missouri,” constitutional amendment approved by Missouri voters last year that required the legislature to abide by the state’s Sunshine Law.
Lawmakers argued that their constituents have a reasonable expectation of privacy when they share personal information with their elected representatives.
Mark Pedroli, founder of the Sunshine and Government Accountability Project, filed records requests with several lawmakers asking for emails sent by constituents in support of legislation making it harder to file lawsuits against out-of-state companies.
The St. Louis Post-Dispatch reported last year that some of those constituents claimed they never sent the emails, raising the specter that their names and email addresses were misappropriated by an entity seeking to influence legislation.
Pedroli, who represents one of those whose name was allegedly misappropriated, filed the request to investigate how widespread the practice truly was.
Some legislators produced complete emails while others redacted email and postal addresses of the purported authors, The lawsuit says such redactions “obstructed the investigation into the identity theft of constituents in Missouri.”
Pedroli argues in his lawsuit that the House does not have the authority to enact a rule to get around the state constitution.
Among the exhibits included in Pedroli’s lawsuit is a letter Schmitt wrote to Parson earlier this year informing the governor that his office should stop using the First Amendment as legal justification to redact information from public records.
Similar to the House, the governor’s office was redacting information like email addresses and phone numbers from records.
In March, Democratic state Rep. Peter Meridith formally asked Schmitt for a legal opinion on whether the House rule violated the constitution.
Schmitt, whose office enforces the Sunshine Law, declined to weigh in on the rule’s constitutionality.
Ellinger, the attorney leading the defense, is a longtime GOP lawyer tied to St. Louis billionaire Rex Sinquefield, the mega donor who has given more than $37 million to various candidates and causes in Missouri since 2010.
In September, Ellinger sued the state on behalf of a nonprofit named United for Missouri after certain personal information was withheld from records provided to the group under Missouri’s Sunshine Law.
Confide
While the House begins efforts to defend its records policy, another lawsuit filed by Pedroli continues to churn along.
In 2017, Pedroli sued the governor’s office after The Star revealed former Gov. Greitens and his staff were using Confide, an app that automatically deletes text messages the moment they have been read.
While several pieces of the lawsuit were dismissed in June, the action is still ongoing. Two former Greitens staffers were recently deposed by Pedroli.
The attorney general’s office under Hawley recused itself from the case because it was conducting its own widely-criticized investigation of Greitens’ Confide use.
In March 2018, the attorney general’s office entered into an agreement to pay Robert Thompson, an attorney at the Bryan Cave firm, $140 an hour from the legal expense fund to represent the governor’s office.
From March 2018 to June 2019, Thompson was paid $26,390 from that fund.
Bryan Cave also entered into a separate agreement with the governor’s office in March 2018. That contract called for attorneys at the firm to be paid $370 an hour.
Thompson billed his hours to the governor’s office as well, earning another $43,355 through June 2019.
In addition to Thompson, five other attorneys from the Bryan Cave firm have billed the governor’s office over the course of the lawsuit. All told, the governor’s office has paid Bryan Cave attorneys $385,000 and counting.
Roland said this is an example of how difficult it is for private citizens to take on the government when they believe the Sunshine Law has been violated.
“The cost of the Confide lawsuit shows the disparity between the government and the citizen trying to hold the government accountable,” Roland said. “They can use taxpayer money to fight these cases, whereas an individual citizen on the other side has a much more limited ability to litigate.”
This story was originally published December 9, 2019 at 2:01 PM.
