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Joyce considers request to block Hawley subpoena in Sunshine case

Joyce considers request to block Hawley subpoena in Sunshine case

March 16th, 2019 by Bob Watson in Local News

After a 42-minute hearing Friday afternoon, Cole County Presiding Circuit Judge Pat Joyce said she’ll consider how to rule on U.S. Sen. Josh Hawley’s request to block a subpoena seeking his deposition.

St. Louis lawyer Elad Gross — a former assistant attorney general and an announced Democratic candidate for attorney general next year — wants to question Hawley as part of Gross’ lawsuit accusing Gov. Mike Parson and his office of delaying the release of public information Gross asked for, at least in part to help Hawley’s campaign last year for the U.S. Senate.

Brian Barnes, a Washington, D.C., lawyer representing Hawley, told Joyce the case really is about Gross being unhappy Parson didn’t respond quickly to, and wants to charge for, “a vastly overbroad set of document requests to the governor’s office and basically, under the Sunshine Law, insisted that the governor’s office go through roughly 13,000 documents.”

If Gross had not filed his lawsuit, and been willing to pay the $3,618.40 cost of researching, processing and copying the requested records, “he’d be receiving the documents next week.”

But the law also allows the agencies to waive the charges, or to impose a reduced charge, “when the public governmental body determines that waiver or reduction of the fee is in the public interest.”

Gross asked the governor to waive the fee, stating the public had a significant interest in seeing the records, which generally involved former-Gov. Eric Greitens and his staff, after Greitens resigned from the office on June 1, and Parson, the lieutenant governor, became governor.

Gross last month asked for, and received, a subpoena ordering Hawley to be deposed.

Gross told Joyce on Friday: “This case does involve Missouri’s Sunshine Law (but) there are also allegations that the Sunshine Law was violated knowingly and purposefully.”

If Joyce were to agree with Gross’ allegations, the law allows the court to impose stronger fines and to order the loser to pay court costs.

“The request that I’ve made has been relevant — that’s my burden to prove,” Gross told Joyce, “and the relevance here is the connection that Sen. Hawley had to those who are central to the Sunshine request. …

“There’s plenty of information — before he came on with representation in this case or did anything else with this case — where he had contact with several of these folks who are central to this Sunshine request.”

But, Barnes said: “There’s nothing in (Gross’) materials that indicate that the attorney general’s office, much less Sen. Hawley, was in any way involved in the handling of that request” to the governor’s office.

He added: “A dispute over a $3,600 fee is not the kind of dispute that rises to the level of taking third-party depositions, much less a deposition of a former attorney for the defendants in the case, who is now a United States Senator.”

Gross’ deposition could require Hawley to violate his attorney-client privilege if he answered some of the questions, Barnes said, explaining: “If he is allowed to take this deposition, he’s going to ask a lot of questions that have really nothing to do with those core factual issues that are, actually, disputed in the case.”

He also said Gross had failed to prove he needed to depose Hawley instead of “the people who he knows actually were involved in handling the Sunshine Law request that’s at the heart of this case.”

Barnes accused Gross of trying to make “an end run around the procedures and limits the law places on what citizens are entitled to get.”

And seeking to depose a sitting U.S. Senator could place an undue burden on his ability to represent Missouri, Barnes said.

Therefore, Joyce should reject the subpoena seeking Hawley’s testimony, he argued.

Gross told Joyce he’d “made every attempt … to mitigate that burden as much as possible,” including seeking to negotiate a date for the deposition that would “accommodate Sen. Hawley’s schedule.”

Gross said his Sunshine request to the governor’s office was specific, not too broad, asking for “information (about) communications between the governor’s office and 27 groups and individuals.”

He said he learned later that “those same individuals … were also some of the major donors to Sen. Hawley’s campaign.”

And that’s why Hawley should be deposed, because he has knowledge no one else can provide.

Joyce didn’t say how long it would take for her to issue her ruling on Hawley’s request to block the subpoena or to let Gross go ahead with his questions.