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Judge: Drug task force is subject to Sunshine Law

No penalties because law wasn't violated on purpose by Bob Watson | June 17, 2017 at 4:13 a.m. | Updated June 17, 2017 at 10:48 p.m.

Cole County Circuit Judge Pat Joyce ruled this week the Mustang Drug Task Force - officially, the Mid-Missouri Unified Strike Team and Narcotics Group - is a "public governmental body" that must comply with Missouri's Open Meetings/Open Records law, or Sunshine Law.

But, she added in a 10-page judgment, Aaron M. Malin "failed to carry his burden to establish" Mustang or its board members "knowingly or purposefully violated" the law.

So, Joyce ruled, Malin isn't entitled to penalties, attorney's fees or costs.

Malin sued the task force and some of its board members, including police chiefs Roger Schroeder (Jefferson City) and Ken Burton (Columbia) and current or former sheriffs Greg White (Cole County), Dennis Crane (Callaway County) and Duane Carey (Boone County).

Attorney Dave Roland of the Missouri Freedom Center in Mexico filed the lawsuit on behalf of Malin, of Chesterfield - now a University of Denver law student - who had been a researcher for the "Show-Me Cannabis" group when he started seeking information from various Missouri drug task forces on their operations and drug enforcement policies.

Joyce issued the ruling Wednesday, almost 14 weeks after she held a more than three-hour hearing on Malin's lawsuit challenging Mustang's Sunshine Law compliance.

She noted Malin sent at least seven records requests to the task force between July 2014 and April 1, 2015, and he "received responses to these except possibly the last one."

Crane was chair of Mustang's executive board during the period Malin was making his requests and testified during the March 10 hearing he replied to some of Malin's requests because, he said, "I don't believe everything had to be answered."

In April 2015, Roland emailed a separate Sunshine request to Crane, who, Joyce wrote, "denied having any memory of receiving" it, and "since he did not know Roland or know that he was Malin's attorney until after this suit was filed, it is quite likely that Crane deleted the message and attachment, as was his practice when receiving messages from unknown sources."

Crane also testified in March that, as the task force's records custodian, he felt he didn't have to release much of the information Malin wanted.

Joyce agreed, writing: "The records identified in each of Malin's and Roland's Sunshine Law requests deal with the sort of law enforcement activities which MUSTANG may be permitted or even required to protect against disclosure."

The Mustang task force generally covers Cole, Callaway and Boone counties and is funded by grants through the Cole County Sheriff's Office, as well as by contributions from area law enforcement agencies.

Joyce noted Betsy Wieberg of the Cole County Sheriff's office had testified she answered some of Malin's requests on Crane's behalf.

The judge wrote Mustang, "either through Crane or Wieberg, complied or substantially complied with all requests made directly by Malin."

Roland told the News Tribune Friday he'll ask Joyce to reconsider her ruling, adding: "The Sunshine Law does not give points for believing you are in compliance. You either complied with the law, or you did not."

If Joyce doesn't change that part of the ruling, Roland said, "We will likely appeal."

Jefferson City's assistant counselor, Bryan Wolford, told the News Tribune, "I believe (Judge Joyce's) findings that there was no willful or purposeful violation of the Missouri Sunshine Law by MUSTANG is consistent with the evidence presented at trial."

Jefferson City lawyer Mike Berry represented White and Crane.

"I feel confident in saying that former sheriffs White and Crane, and (Boonville Police) Chief (Bobby) Welliver, are gratified to know that the court ruled this way," Berry said. "These three men have served the public well for many years - I'm pleased for them that their records of service remain clear."

Roland said Joyce's finding that the task force is a "public body" subject to the Sunshine Law's requirements clearly was a win "on that issue," and it's Roland's second victory on the point.

On Dec. 31, Circuit Judge Rachel Bringer Shepherd, a former state representative who now is the presiding judge of the 10th Circuit for Marion, Monroe and Ralls counties, ruled in a similar Audrain County case the Mexico-based East Central Missouri Task Force's executive board is a public body under the Sunshine Law.

In that case, also filed on Malin's behalf, Bringer Shepherd ruled the East Central task force violated the law when it didn't allow Malin to attend its January 2015 executive board meeting - as well as when it failed to announce the meeting ahead of time, post the meeting agenda and designate a records custodian.

However, as in Joyce's ruling this week, Bringer Shepherd said the law violations were not purposeful, and there wasn't "a conscious design, intent, or plan to violate the law with an awareness of the probable consequences of the violation."


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