Court of Appeals of Missouri, Eastern District, Fifth Division
Appeal from the Circuit Court of the City of St. Louis. Honorable Robert H. Dierker, Jr.
Mark E. Lawson, Neil J. Bruntrager, St. Louis, MO, for appellants.
Anthony E. Rothert, St. Louis, MO; Gilliam R. Wilcox, Kansas City, MO, for respondent.
LAWRENCE E. MOONEY, JUDGE. ANGELA T. QUIGLESS, C.J., and MARY K. HOFF, J., concur.
LAWRENCE E. MOONEY,
Scalpers sold tickets to the 2006 World Series in apparent violation of a then-existing municipal ordinance. The St. Louis police seized the tickets as evidence. After some of the tickets were used to admit persons to the World Series, some of the citizens from whom police had seized the tickets complained to the police department. The department investigated and disciplined certain police officers for their misconduct in the handling of evidence. John Chasnoff requested records of the investigation pursuant to Missouri's Sunshine Law. The Circuit Court of the City of St. Louis ordered the production of 59 specific records and awarded attorneys' fees to Chasnoff. Because we conclude that the police officers lack a protectable privacy interest in these records of their substantiated on-the-job police misconduct, we affirm the judgment ordering the records' release. Because the trial court properly awarded attorneys' fees due to a knowing violation of the Sunshine Law, we affirm the award of attorneys' fees.
Facts and Procedural History
In early November 2006, a citizen complained to the St. Louis Metropolitan Police Department that his St. Louis Cardinals 2006 World Series baseball tickets were improperly used during the 2006 World Series. The citizen reported that police had confiscated the tickets for illegal scalping, that is, selling the tickets for more than their stated price. The police department's Internal Affairs Division (IAD) investigated. After a news article on the story appeared, a second citizen filed a similar complaint.
When investigating a complaint of misconduct, IAD investigators interview the subject police officer(s). The IAD investigator provides the police officer with the following " advice of rights."
I wish to advise you that you are being questioned as part of an official investigation of the Police Department. You will be asked questions related and specifically directed to the performance of your official duties or fitness for office. You are entitled to all the rights and privileges guaranteed by the laws and the Constitution of this State and the Constitution of the United States, including the right not to be compelled to incriminate yourself. I further wish to advise you that if you refuse to testify or answer questions relating to the performance of your official duties or fitness for duty, you will be subject to department charges which could result in your dismissal from the Police Department. If you do answer, these statements may be used against you in relation to subsequent departmental charges, but not in any subsequent criminal proceedings. [I understand that all matters discussed are confidential and that I shall not discuss or communicate any part of these matters to any other person, other than my attorney, without prior written permission from the Command, Internal Affairs.]
Emphasis added.) The bracketed language is no longer included in the current " advice of rights" form, but was included in the forms presented to the police officers in this case. IAD interviewed each police officer who is a party in this case in investigating the complaints that World Series tickets had been improperly used. IAD investigators presented each police officer with the " advice of rights" quoted above, which is based on Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The police department refers to the subsequent interviews as " Garrity statements."
The investigation revealed that a number of World Series tickets seized from arrestees were used by other persons and then placed in the evidence storage area of the police department's vice and narcotics division. Of 98 confiscated World Series tickets, 31 tickets were used, and investigators learned that several police officers had allowed family members and friends to use the tickets. At the investigation's conclusion, the police department disciplined 16 police officers, with penalties ranging from written reprimand to suspensions and demotions in rank. IAD found that these police officers failed to obey rules for proper handling of evidence, engaged in conduct unbecoming an officer, or violated department procedures. The trial court found that it did not appear from the record that any of the police officers contested the discipline imposed.
John Chasnoff sought disclosure of the records of any complaints and investigative reports related to the confiscated World Series tickets situation under the Sunshine Law, section 610.010 et seq., RSMo. (2000 & Supp. 2013). Because the police department refused to produce the entire IAD file, Chasnoff filed suit against the Board seeking relief under the Sunshine Law. In June 2010, the trial court entered judgment in Chasnoff's favor based on section 610.021 of the Sunshine Law, ordering disclosure of the IAD full investigative report arising from the citizen complaint, awarding
attorneys' fees to Chasnoff, and assessing a civil penalty. The trial court also allowed Wendall Ishmon and other named and unnamed St. Louis police officers (collectively " the police officers" ) to intervene in Chasnoff's suit against the Board " for the sole purpose of appealing the [c]ourt's final judgment" because the police officers alleged certain privacy interests in the records that the court had ordered disclosed. The Board announced its intention to comply with the trial court's order and did not appeal the judgment ordering disclosure of the records. However, Chasnoff appealed that part of the trial court's judgment allowing the police officers to intervene for the purpose of appeal. The police officers filed a cross-appeal seeking reversal of the judgment ordering disclosure of the records at issue.
In Chasnoff v. Board of Police Commissioners, 334 S.W.3d 147, 152 (Mo. App. E.D. 2011) (" Chasnoff I " ), this Court held that the trial court erred in granting the police officers' motion to intervene for the purpose of appeal. We observed that a party's claim that a government agency must close records is not a claim under the Sunshine Law, which specifically prohibits such claims in section 610.022.4. Chasnoff I, 334 S.W.3d at 152. We continued that such a claim is an independent action that must be based on the assertion of rights under a different statute or constitutional provision. Id. Because the police officers neither asserted nor obtained adjudication in the trial court of a claim against the Board alleging violation of their personal privacy and property interests, we held that they could not raise the issue on appeal from the underlying case. Id. We reversed that part of the judgment allowing the police officers to intervene, and dismissed the cross-appeal. Id. We left the trial court's order staying release of the records in place so that the police officers might pursue an independent action concerning their alleged privacy and property rights in the records at issue. Id.
Following our decision in Chasnoff I, the police officers filed suit in Ishmon v. St. Louis Board of Police Commissioners in the Circuit Court of the City of St. Louis to prevent the Board's disclosure of the police officers' personnel and disciplinary records. Chasnoff moved to intervene, and the trial court granted his intervention. Without Chasnoff's participation, the police officers and the Board then entered into a consent judgment whereby the Board agreed not to release the records that the trial court had previously ordered released in Chasnoff's action against the Board. Chasnoff appealed. In Ishmon v. St. Louis Board of Police Commissioners, 415 S.W.3d 144 (Mo. App. E.D. 2013), and the companion case of Chasnoff v. Mokwa, 415 S.W.3d 152 (Mo. App. E.D. 2013) (" Chasnoff II " ), decided at the same time, this Court found that Chasnoff's asserted interest and rights in disclosure of the records at issue were never adjudicated in the proceeding and were disregarded without determination by the consent judgment. Ishmon, 415 S.W.3d at 151; Chasnoff II, 415 S.W.3d at 158-59. We vacated the consent judgment and remanded the causes for adjudication of all parties' interests and rights by one newly-assigned judge. Ishmon, 415 S.W.3d at 151; Chasnoff II, 415 S.W.3d at 159. The stay order
concerning the release of the records at issue remained in effect. Id.
On remand, the trial court consolidated the Chasnoff and Ishmon cases and adjudicated all issues following a bench trial in April 2014, The subject of the police officers' claim for relief consists of 59 documents from the IAD investigation, namely interview transcripts and recordings of the interviews with each of the 19 police officers in the Ishmon case, the " advice of rights" form executed by 16 officers, seven officers' consent-to-discipline forms, a computerized summary of the investigation results covering 16 officers, and IAD administrative reports. Officer Ishmon testified that he wanted the records closed because their disclosure would cause him embarrassment. Officer Menendez testified in a conclusory manner that disclosure would damage the reputation of the individual officers and the department. But no police officer adduced factual evidence that the accusations were false. All other plaintiff police officers agreed that if they were to testify, their testimony would match that of Officers Ishmon and Menendez.
The trial court concluded that the June 2010 Chasnoff judgment ordering disclosure of the subject records was a final judgment, not subject to collateral attack by the police officers in their case. The trial court stated that the records are public records subject to disclosure unless the police officers could demonstrate an independent right to compel closure. The court determined that the police officers have no legally cognizable right to privacy that precludes release of the Board's records regarding the investigation and discipline of the police officers for misconduct in the handling of evidence seized incident to the 2006 World Series ticket-scalping arrests. The trial court also found that the Board's entry into the consent judgment with the police officers constituted " a palpable effort to evade the judgment in Chasnoff," that Chasnoff's intervention in Ishmon was essential to preserve the judgment in Chasnoff, and that without intervention, Chasnoff's ability to enforce the earlier judgment ordering disclosure of the records would have been foreclosed. As a result, the court awarded Chasnoff $100,000 in attorneys' fees from the Board. The police officers and the Board appeal.
The police officers assert on appeal that the trial court erred in concluding that they have no enforceable constitutional, statutory, or common-law right to privacy in disciplinary records pertaining to their official duties. They also argue that the trial court erred in finding that the Board's practice and advice to officers about using their Garrity statements only for internal purposes did not amount to a promise of non-disclosure giving rise to a right to privacy.
The Board argues on appeal that the trial court erred in awarding attorneys' fees to Chasnoff for the entirety of the consolidated cases under either the Sunshine Law or the collateral-litigation exception to the American Rule.
The Police Officers' Appeal: Ishmon v. St. Louis Board of Police Commissioners
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