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TWENTYSECOND JUDICIAL CIRCUIT
(City of St. Louis)
DAVID ROLAND )
)
Plaintiff, )
) Cause No. 1622CC09861
vs. ) Division No. 4
)
ST. LOUIS CITY BOARD OF )
ELECTION COMMISSIONERS, et al., )
)
Defendants. )
MEMORANDUM OPINION AND PARTIAL JUDGMENT
Introduction
Plaintiff David Roland filed suit against defendants St. Louis City Board of
Election Commissioners and also against Joan Burger, Paul Maloney, Benjamin Phillips,
Andrew Schwartz, Marilyn Jobe, Leo G. Stoff, and Mary WheelerJones alleging that he
had requested copies of all applications for absentee ballots for elections conducted
between January 1, 2012 and the present, and also requested copies of all absentee
ballot envelopes used in elections held between January 1, 2012 and July 1, 2016; that
defendants refused to provides those copies; and asking for the court to declare that he
has the right to copies of those documents, and further asking that the court fine
defendants for not providing the documents. In the interest of expediting determination
of this important case, the parties agreed that defendants might dictate their answer
into the record, which defendants did and in which they admitted all of the factual
allegations of the petition save only that they knowingly violated the law. Again, in the
interest of expediting this litigation and by consent, defendants made an oral motion for
judgment on the pleadings and plaintiff made an oral partial motion for judgment on
the pleadings. The motions were taken under submission. The parties and their counsel
are commended for their cooperation. The court is now prepared to rule.
Discussion
The first issue presented is whether Mr. Roland has the right to copies of the
applications for absentee ballots. Section 610.011.2 RSMo provides that “[e]xcept as
otherwise provided by law, all…public records of public governmental bodies shall be
open to the public for inspection and copying….” It is not doubted that the applications
at issue are public records of a public governmental body, but defendants contend that it
is otherwise provided by law. The law that they say provides otherwise with respect to
applications for absentee ballots is section 115.289 RSMo. However, while the four
subsections of section 115.289 RSMo have quite a lot to say about the confidentiality of
lists of applications for absentee ballots, the only provision relating to the confidentiality
of absentee ballot applications is this: “Prior to 8:00 a.m. on the Friday before an
election all absentee ballot applications…shall be kept confidential.” Section 115.289.3
RSMo. There is nothing that makes applications confidential after that.
There is also a controversy regarding Mr. Roland’s right to obtain copies of
absentee ballot envelopes. Again, all parties understand that such envelopes are records
maintained by a public governmental body. The issue is whether the law otherwise
makes the envelopes confidential. Defendants point to section 115.493 RSMo, which
provides in pertinent part that election authorities shall keep all “processed ballot
materials in electronic form and writein forms” for 22 months, and that they allow no
one to inspect them during that time. They assert that the ballot envelopes are
“processed ballot materials in writein form.”
The phrase “processed ballot materials in writein form” is awkward at best and
gobbledygook at worse, and it is certainly not selfevident that absentee ballot envelopes
are such things. When the legislature sought to address absentee ballot envelopes in
other sections of the Comprehensive Election Act it called them, not surprisingly, “ballot
envelopes.” See section 115.281.1, section 115.283.1 RSMo, section 115.287.1 RSMo,
section 115.291.1 RSMo, and section 115.291.2 RSMo. However, the many sections of the
Act that are concerned with write in ballots —sections 115.468 through 115.489 RSMo
do use the word “writein.” It is the documents associated with the casting of ballots
with writein votes, after they are “processed,” that seem to be the most likely referent of
the phrase.
2
Conclusion and Partial Judgment
The legislature has said that it is public policy that the Sunshine Law be liberally
construed, and that to this end exceptions are to be strictly construed. Section 610.011.2
RSMo. It is not possible, construing section 115.289 strictly, to construe the phrase
“prior to 8:00 a.m. on the Friday before the election” to mean “prior to 8:00 a.m. on the
Friday before the election or after 8:00 a.m. on the Friday before the election.”
Likewise, it is not possible to construe the phrase “processed ballot materials in writein
forms,” as used in section 115.493 RSMo, to mean ballot envelopes when every other
time that the Act addresses ballot envelopes it refers to them as “ballot envelopes.”
Accordingly, It is declared that defendants violated the law when they failed to
furnish Mr. Roland with the copies of the ballot applications and ballot envelopes that
he had requested.
SO ORDERED:
______________________________JULIAN
L. BUSH, Circuit Judge