IN THE CIRCUIT COURT OF ST - Washington …law.wustl.edu/Events/2008-2009/BriefsSept.24/90625... · Web view... this Court lacks jurisdiction to hear Campisi’s appeal of his “After-Trial

Consolidated Appeal No. ED90625

IN THE MISSOURI COURT OF APPEALSEASTERN DISTRICT

JOHN CAMPISI, Appellant,

vs.

F.W. DISPOSAL SOUTH, LLC, ET AL.,Plaintiffs-Respondents,

vs.

ST. LOUIS COUNTY COUNCIL, ET AL.,Defendants-Respondents.

Appeal from the Circuit Court of St. Louis County, Missouri, 21st Judicial Circuit The Honorable Barbara Ann Crancer, Division 31

RESPONDENTS ST. LOUIS COUNTY COUNCIL AND ST. LOUIS COUNTY’S BRIEF

PATRICIA REDINGTONCOUNTY COUNSELORLorena V. Merklin von Kaenel, #42035Assistant County CounselorSt. Louis County Counselor’s Office41 South Central Avenue, 9th FloorSt. Louis, Missouri 63105Office: (314) 615-7042Facsimile: (314) 615-3732

Attorneys for Respondents St. Louis County Council and St. Louis County

Table of ContentsPage

Table of Cases, Rules, and Other Authorities...........................................................4

Jurisdictional Statement............................................................................................7

Statement of Facts.....................................................................................................8

Points Relied On.....................................................................................................12

Argument................................................................................................................15

I. Standard of Review........................................................................................15

II. Campisi’s Appeal Should Be Dismissed Because Campisi Was Not A

Party To The Underlying Lawsuit And Therefore Lacked Standing To

File His After-Trial Motion, So That This Court Lacks Jurisdiction

Over Campisi’s Attempted Appeal...........................................................16

III. Campisi’s Appeal Should Be Dismissed For His Failure In Each Of His

Three Points Relied On To Comply With The Requirement Of

Mo.R.Civ.P. 84.04(D)(1)(A) That He Identify The Challenged Ruling.19

IV. Trial Court Ruled Correctly That The County Counselor Acted Within

Her Authority To Settle The F.W. Weber Lawsuit Because The St.

Louis County Charter Commits The Management Of All Civil

Litigation To The County Counselor And Not To The County Council

Or Individual Members Thereof (Point III).............................................23

V. Trial Court Ruled Correctly That The County Counselor Did Not

Violate The Sunshine Law Insofar As The Settlement Agreement Was

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Made Public Upon Signature Of The Parties (Points I And II).............28

Conclusion..............................................................................................................31

Certificate of Compliance.......................................................................................33

Certificate of Service..............................................................................................34

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Table of Cases, Rules, and Other AuthoritiesCases

Anderson v. Village of Jacksonville, 103 S.W.3d 190 (Mo.App.W.D. 2003)............14, 29

Berghorn v. Reorganized School Dist. No. 8, 260 S.W.2d 573 (Mo. 1953).....................19

City of Springfield v. Events Publ. Co., 951 S.W.2d 366 (Mo.App.S.D. 1997).........14, 29

Cook v. Bolin, 296 S.W.2d 181 (Mo.App. 1956)........................................................13, 19

F.W. Disposal South, LLC v. St. Louis County, 168 S.W.3d 607 (Mo.App.E.D. 2005)..15

In re Chain Yacht Club v. St. Louis Boating Ass’n, 225 S.W.2d 476 (Mo.App. 1959). . .18

In re Incorporation of City of River Bend, 530 S.W.2d 704 (Mo.App. 1975)..................25

In re Marriage of Jeffrey, 53 S.W.3d 173 (Mo.App.E.D. 2001).......................................15

Librach v. Cooper, 778 S.W.2d 351 (Mo.App.E.D. 1989)................................................29

Maroney v. Maroney, 953 S.W.2d 644 (Mo.App.S.D. 1997)...............................13, 19, 20

Muller v. St. Louis Housing Authority, 175 S.W.3d 191 (Mo.App.E.D. 2005)...............15

News-Press and Gazette Co. v. Cathcart, 974 S.W.2d 576 (Mo.App.W.D. 1998)............16

Payne v. Payne, 695 S.W.2d 494 (Mo.App.S.D. 1985)...............................................12, 17

Rau v. St. Louis County Employees’ Retirement Program, 69 S.W.3d 101 (Mo.App.E.D.

2002).................................................................................................................12, 15

Sarasohn & Co., Inc. v. Prestige Hotels Corp., 945 S.W.2d 13 (Mo.App.E.D. 1997) 12, 15

State ex rel. Lashly v. Wurdemann, 166 S.W. 348 (Mo.App. 1914).....................13, 24, 26

State ex rel. McNary v. Hais, 670 S.W.2d 494 (Mo. banc 1984)......................................25

State ex rel. Nixon v. American Tobacco Co., 34 S.W.3d 122 (Mo. banc 2000).......13, 27

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State ex rel. Pettis County v. Hon. Charles H. Sloan, 643 S.W.2d 618 (Mo.App.W.D.

1982)................................................................................................................passim

State ex rel. Saupe v. Swink, 475 S.W.2d 466 (Mo.App. 1971).......................................17

S tate v. Harris , 939 S.W.2d 915 (Mo.App.W.D. 1996).....................................................26

Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978).................................................13, 20

Transit Cas. Co. ex rel. Pulitzer Publishing Co. v. Transit Cas. Co. ex rel. Intervening

Employees, 43 S.W.3d 293 (Mo. banc 2001).........................................................28

Tuft v. City of St. Louis, 936 S.W.2d 113 (Mo.App.E.D. 1996)................................16, 30

Vinson v. Vinson, 243 S.W.3d 418, 422-423 (Mo.App.E.D. 2008).................................17

Weiners v. Doe, 165 S.W.3d 520 (Mo.App.S.D. 2005)........................................12, 15, 17

Zedner v. United States, 547 U.S. 489 (2006).............................................................12, 17

Zimmermann v. Missouri Bluffs Golf Joint Venture, 50 S.W.3d 907 (Mo.App.E.D. 2001)

..........................................................................................................................12, 15

Statutes

Section 512.020, R.S.Mo. 2000, as amended......................................................................7

Section 56.640, R.S.Mo. 2000, as amended................................................................13, 24

Section 610.011, R.S.Mo. 2000, as amended..............................................................14, 28




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Other Authorities

St. Louis County Charter, Section 2.010 et seq.................................................................26

St. Louis County Charter, Section 5.020.....................................................................13, 26

St. Louis County Charter, Section 5.030.........................................................13, 19, 23, 24

Rules

Missouri Rule of Civil Procedure 55.06............................................................................14

Missouri Rule of Civil Procedure 55.32............................................................................14

Missouri Rule of Civil Procedure 74.06......................................................................12, 18



Missouri Rule of Civil Procedure 84.04..........................................................13, 19, 20, 22

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Jurisdictional Statement

Appellant John Campisi (Campisi) was not a party to the underlying litigation and,

therefore, this Court lacks jurisdiction to hear Campisi’s appeal of his “After-Trial

Motion By Party To Reconsider Judgment And To Amend Opinion To Set Aside

Improper Waiver Of Appeal Rights”. Section 512.020, R.S.Mo. 2000, as amended1.

Further, Campisi was judicially prohibited from participating in the underlying suit by the

trial court and is not authorized by the St. Louis County (County) or the St. Louis County

Council (County Council) to bring his After-Trial Motion or appeal the ruling thereto.

1 All references to the Revised Missouri Statutes are to the 2000 edition, as amended,

unless stated otherwise.

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Statement of Facts

Over five years ago, respondents-plaintiffs F.W. Disposal South, LLC, et al. (F.W.

Disposal) sought a license to construct and operate a trash transfer station in

unincorporated south St. Louis County. Legal File (L.F.) 15, 20. To that end, F.W.

Disposal filed its application for a trash transfer station with respondent-defendant St.

Louis County (County) on May 5, 2003. L.F. 20. F.W. Disposal’s proposed trash transfer

station was to be located in the 6th District of St. Louis County and Appellant John

Campisi (“Campisi”) is the St. Louis County Council member who represents the 6th

District.

After a May 4, 2004 public hearing before the County Council, the County

Council (which included Campisi) denied F.W. Disposal’s application. L.F. 22,

Campisi’s Brief, pg. 18. On June 2, 2004, F.W. Disposal initiated suit against St. Louis

County alleging St. Louis County had unlawfully denied the requested license. L.F. 1, 13-

94. Campisi was not a named party in the suit. L.F. 1-12, 13-94. F.W. Disposal, in its

six-count amended Petition2, alleged state and federal civil rights violations, requested

injunctions and declaratory judgments, and prayed for monetary damages and attorneys’

fees. L.F. 13-94, R.F. 14-193.

On February 17, 2005, F.W. Disposal filed its notice to take the deposition of

Campisi. R.F. 243. On behalf of Campisi, the St. Louis County Counselor (County

Counselor) moved to quash Campisi’s deposition, R.F. 242-245, and the trial court

2 On January 24, 2007, the trial court permitted F.W. Disposal to file its Second Amended

Petition. L.F. 4, R.F. 14-193.

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granted Campisi’s motion to quash. R.F. 248. Thereafter, on August 10, 2005, the trial

court granted F.W. Disposal’s motion in limine to bar the testimony of all the County

Council members, including Campisi. R.F. 250-256. Neither of these trial court orders

has been appealed. L.F. 1-12.

On October 19, 2007, the trial court granted F.W. Disposal’s motion for partial

summary judgment in the suit, L.F. 95-106, ruling against County on the administrative

appeal of the Council’s decision to deny a trash transfer station license to F.W. Weber

and leaving five civil rights counts pending. L.F. 101. This order followed more than

three years of intense and expensive litigation. L.F. 1-12.

Thereafter, the only and long-established parties to the suit - F.W. Disposal and St.

Louis County - negotiated and settled the remaining counts of F.W. Disposal’s suit; F.W.

Disposal agreed to dismiss its five civil rights claims with prejudice in exchange for St.

Louis County’s agreement to forego any appeal. L.F. 133-135; R.F. 263-265 (“Settlement

Agreement”). The remaining portion of the suit was dismissed on October 31, 2007.

L.F. 3.

The County Counselor represented the County and the County Council without

objection until mid-November of 2007. L.F. 1-12. On November 16, 2007, attorney Kirk

Stange filed a document titled “After-Trial Motion By Party To Reconsider Judgment

And To Amend Opinion To Set Aside Improper Waiver Of Appeal Rights” (“After-Trial

Motion”). L.F. 129-138. The motion was purportedly filed on behalf of Campisi in

Campisi’s official as well as personal capacity, although the County Charter prohibits

councilmembers from having any attorney but the County Counselor absent specific

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legislative authorization to the contrary. Attached to the motion was an affidavit signed

by Campisi, which affidavit had also been attached to motion to intervene filed the same

date by Semco Plastics, Inc. and Canaan Baptist Church;3 that affidavit was stricken by

the court, as violative of the court’s previous order barring Campisi’s testimony, when

the court denied the motions to intervene. L.F. 250-256, L.F. 107-126, 129-138, 143.

In his After-Trial Motion, Campisi lambasted the County Counselor’s settlement

of the underlying suit, accusing the County Counselor of “serious professional

misconduct” and alleging that the County Counselor had violated the Missouri Sunshine

Act, Section 610.021(1) R.S.Mo. L.F. 129-138. In his motion, Campisi admitted that the

Settlement Agreement was between the parties to the suit but nevertheless asked that the

Settlement Agreement be “declared a nullity” so that the County Council’s “right of

appeal” could be restored. L.F. 130-131. Campisi admits that he and a third person were

provided copies of the Settlement Agreement when they requested it of the County

Counselor. L.F. 129-138. Campisi also admits that the County Counselor “is singularly

responsible for presenting and defending cases involving St. Louis County.” Campisi’s

Brief, pg. 29.

On November 21, 2007, the trial court denied Campisi’s After-Trial Motion. L.F.

145-146. The trial court determined the County Counselor acted within the powers

conferred by Section 5.030.1 of the St. Louis County Charter4 (County Charter). R.F.

266-272, 273-324. The trial court also determined that the County Counselor did not

3 Semco Plastics and Canaan Baptist Church owned properties adjoining the proposed

trash transfer station.

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violate the Missouri Sunshine Law, Section 610.021(1), insofar as the Settlement

Agreement had been made public. L.F. 145-146. Finally, the trial court struck Campisi’s

allegations of ethical misconduct by the County Counselor. L.F. 145-146. At no time

during the litigation or in the November 21, 2007 order did the trial court ever make

Campisi a party to the underlying lawsuit. L.F. 1-12.

4 The Missouri Constitution, Article VI, Section 18(j) requires all courts to take judicial

notice of County’s Charter. R.F. 273-324.

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Points Relied On

I. Standard Of Review

Weiners v. Doe , 165 S.W.3d 520 (Mo.App.S.D. 2005)

Sarasohn & Co., Inc. v. Prestige Hotels Corp. , 945 S.W.2d 13

(Mo.App.E.D. 1997)

Rau v. St. Louis County Employees’ Retirement Program , 69

S.W.3d 101 (Mo.App.E.D. 2002)

Zimmermann v. Missouri Bluffs Golf Joint Venture , 50 S.W.3d 907

(Mo.App.E.D. 2001)


Party To The Underlying Lawsuit And Therefore Lacked Standing To File His

After-Trial Motion, So That This Court Lacks Jurisdiction Over Campisi’s

Attempted Appeal.

Weiners v. Doe , 165 S.W.3d 520 (Mo.App.S.D. 2005)

State ex rel. Pettis County v. Hon. Charles H. Sloan , 643 S.W.2d 618

(Mo.App.W.D. 1982)

Payne v. Payne , 695 S.W.2d 494 (Mo.App.S.D. 1985)

Zedner v. United States , 547 U.S. 489 (2006)

Missouri Rule of Civil Procedure 74.06



St. Louis County Charter, Section 5.030

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III. Campisi’s Appeal Should Be Dismissed For His Failure In Each Of

His Three Points Relied On To Comply With The Requirement Of Mo.R.Civ.P.

84.04(D)(1)(A) That He Identify The Challenged Ruling.

Cook v. Bolin , 296 S.W.2d 181 (Mo.App. 1956)

Maroney v. Maroney , 953 S.W.2d 644 (Mo.App.S.D. 1997)

Thummel v. King , 570 S.W.2d 679 (Mo. banc 1978)


IV. Trial Court Ruled Correctly That The County Counselor Acted

Within Her Authority To Settle The F.W. Weber Lawsuit Because The St. Louis

County Charter Commits The Management Of All Civil Litigation To The

County Counselor And Not To The County Council Or Individual Members

Thereof (Point III).

State ex rel. Lashly v. Wurdemann , 166 S.W. 348 (Mo.App. 1914)

State ex rel. Pettis County v. Hon. Charles H. Sloan , 643 S.W.2d 618

(Mo.App.W.D. 1982)

State ex rel. Nixon v. American Tobacco Co., 34 S.W.3d 122 (Mo.

banc 2000)



Section 56.640, R.S.Mo. 2000, as amended

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V. Trial Court Ruled Correctly That The County Counselor Did Not

Violate The Sunshine Law Insofar As The Settlement Agreement Was Made

Public Upon Signature Of The Parties (Points I And II).

Anderson v. Village of Jacksonville , 103 S.W.3d 190

(Mo.App.W.D. 2003)

City of Springfield v. Events Publ. Co., 951 S.W.2d 366

(Mo.App.S.D. 1997)






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Argument

I. Standard of Review

The trial court and the Court of Appeals can determine their own subject matter

jurisdiction and that determination is reviewed by a de novo standard. Weiners v. Doe,

165 S.W.3d 520, 522 (Mo.App.S.D. 2005)(court of appeal’s duty to ascertain whether it

has jurisdiction even if not raised by either party), Sarasohn & Co., Inc. v. Prestige Hotels

Corp., 945 S.W.2d 13, 16 (Mo.App.E.D. 1997)(in absence of a party having standing to

bring an action the court lacks jurisdiction to adjudicate the merits of their motion), See

also In re Marriage of Jeffrey, 53 S.W.3d 173, 175 (Mo.App.E.D. 2001)(trial court’s

jurisdiction is a question of law reviewed de novo), F.W. Disposal South, LLC v. St.

Louis County, 168 S.W.3d 607 (Mo.App.E.D. 2005)(review of whether litigant had

standing is de novo), Muller v. St. Louis Housing Authority, 175 S.W.3d 191, 193

(Mo.App.E.D. 2005). As a result, this Court can decide ab initio whether the trial court

can entertain Campisi’s After-Trial Motion.

Where, as here, a decision is based on statutory interpretation and the application

of facts, this Court must review the decision de novo. Rau v. St. Louis County

Employees’ Retirement Program, 69 S.W.3d 101, 103 (Mo.App.E.D. 2002);

Zimmermann v. Missouri Bluffs Golf Joint Venture, 50 S.W.3d 907, 910 (Mo.App.E.D.

2001)5. The questions of the power of the County Counselor under the County Charter 5 While Campisi argues this Court should affirm the trial court’s judgment “unless there

is no substantial evidence to support it, it is against the wait (sic) of the evidence, or it

erroneously declared or applies the law” citing News-Press and Gazette Co. v. Cathcart,

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and a public governmental body’s compliance with the Missouri Sunshine Law are pure

questions of law.


Party To The Underlying Lawsuit And Therefore Lacked Standing To File

His After-Trial Motion, So That This Court Lacks Jurisdiction Over

Campisi’s Attempted Appeal.

In his After-Trial Motion, Campisi sought to set aside the trial court’s judgment

and dismissal of F.W. Weber’s lawsuit against County following the Settlement

Agreement between the parties. L.F. 129-138. However, Campisi was not a party to the

underlying suit. L.F. 1-12.6

974 S.W.2d 576, 578 (Mo.App.W.D. 1998), the court in his cited Tuft v. City of St.

Louis, 936 S.W.2d 113, 117 (Mo.App.E.D. 1996) utilizes statutory construction rules to

interpret provisions of Missouri Sunshine Law and thus engaged in de novo review.

6 Not only was Campisi not a party but in fact the trial court twice barred Campisi’s

participation in the underlying suit; on August 10, 2005 the trial court granted F.W.

Weber’s motion in limine to bar Campisi from participating in the case, L.F. 143, due to

having previously granted Campisi’s motion to quash his deposition based on legislative

privilege. On November 16, 2007, the court reiterated that exclusion when Campisi

attempted to support by affidavit adjoining property owners’ post-dismissal motions to

intervene. L.F. 143, R.F. 261-262. The doctrine of judicial estoppel provides that

“[w]here a party assumes a certain position in a legal proceeding, and succeeds in

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As a non-party to this action, Campisi lacked standing to file a post-trial motion.

See State ex rel. Pettis County v. Sloan, 643 S.W.2d 618, 620 (Mo.App. 1982) (County

judges who simply filed a motion to disqualify the prosecuting attorney from representing

the county could not circumvent the procedures for intervention and lacked standing to

file their motion). It is clearly established “that strangers to an original suit may not

merely inject themselves into the suit. . . .” Payne v. Payne, 695 S.W.2d 494, 496

(Mo.App. 1985), citing State ex rel. Saupe v. Swink, 475 S.W.2d 466, 467-468 (Mo.App.

1971). “In order to be a party, a person ‘must either be named as a party in the original

pleadings, or be later added as a party by appropriate trial court orders’.” Weiners v. Doe,

165 S.W.3d at 522 (citation omitted). “A non-party has no standing to attempt to set

aside a judgment. . . . Only a party may appeal.” Id. (citations omitted). See also In re

Chain Yacht Club v. St. Louis Boating Ass’n, 225 S.W.2d 476, 480 (Mo.App. 1959)

(“persons desiring to be made parties to a suit before trial can file application to that

effect, but after trial the motion for new trial must come from the losing party”); Mo.

R.Civ.P. 81.04 (authorizing “a party” to appeal from a judgment or order).

Campisi has admitted he was not a party to the underlying suit, L.F. 136, and he

therefore lacks standing to set aside the trial court’s judgment, file any post-judgment

maintaining that position, he may not thereafter, simply because his interests have

changed, assume a contrary position, especially if it be to the prejudice of the party who

has acquiesced in the position formerly taken by him.” Zedner v. United States, 547 U.S.

489, 504 (2006); see also Vinson v. Vinson, 243 S.W.3d 418, 422-423 (Mo.App.E.D.

2008) quoting and applying Zedner.

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motion or appeal the denial of his unauthorized motion. Rules 74.06, 81.04, 81.05.

Because Campisi lacks standing to pursue his After Trial Motion, this court lacks

jurisdiction to entertain his attempted appeal. See State ex rel. Pettis County v. Sloan,

643 S.W.2d at 620 (noting that courts lack jurisdiction to act on the motion of a non-party

who lacks standing).

Campisi argues that he has “an obligation and standing” to pose his challenge

because of his status as “a member of the St. Louis County Council.” Campisi’s Brief,

pg. 16. However, members of the County Council lack individual authority to be

represented by an attorney other than the County Counselor:

Neither the council nor any department, division, office, officer, board,

commission, or other agency or body of the county shall have any

attorney other than the county counselor, except as may be authorized by

ordinance in each employment.

St. Louis County Charter, Section 5.030.2.7 Campisi’s admission that the County

Counselor “is singularly responsible for presenting and defending cases involving St.

Louis County” confirms the County Charter’s prohibition. Campisi’s Brief, pg. 29, R.F.

266-272, 273-324.

Campisi was not a party to the underlying litigation and has no authority to retain

counsel and appear in his official capacity. Because he lacks standing in any capacity,

this court lacks jurisdiction of his appeal and the appeal should be dismissed.

7 The record does not reflect ordinance authorization for Campisi to have an attorney

other than the County Counselor.

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III. Campisi’s Appeal Should Be Dismissed For His Failure In Each Of His

Three Points Relied On To Comply With The Requirement Of Mo.R.Civ.P.

84.04(D)(1)(A) That He Identify The Challenged Ruling.

Mo.R.Civ.P. 84.04(d)(1)(a) requires that each point relied on shall identify the trial

court ruling or action that the appellant challenges. . . .” As noted in Cook v. Bolin, 296

S.W.2d 181 (Mo.App. 1956), “An assignment must point out that which the court did or

did not do which it is contended was erroneous.” Id. at 185, citing Berghorn v.

Reorganized School Dist. No. 8, 260 S.W.2d 573 (Mo. 1953). The requirements of Rule

84.04(d)(1)(a) are mandatory. Maroney v. Maroney, 953 S.W.2d 644, 646 (Mo.App.S.D.

1997).

Notwithstanding this mandatory requirement, each of Campisi’s three points relied

on fails to identify the trial court action sought to be reversed. Instead, Campisi states

only that the court “erred in finding that the County Attorney made her settlement of the

case involving a public agency ‘public upon signing’ and hence did not violate the

Sunshine Law. . .” (Point I); “erred in refusing to apply any sanction under the Sunshine

Law for the County Attorney’s failure to make public the settlement of a public agency

case. . .” (Point II); and “erred in finding that the County Attorney acted within her

powers in entering into the Settlement Authority. . .” (Point III). Nowhere in his points

relied on does Campisi identity the specific ruling (or rulings) being challenged.

Campisi’s brief suffers from the same fatal defect as the brief in Maroney, wherein

the court observed that:

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None of the paragraphs state an action or ruling of the court about which a

complaint is made. Each paragraph is an abstract statement of law. Rule

84.04(d) includes the admonition, “Setting out only abstract statements of

law without showing how they are related to any action or ruling of the

court is not a compliance with this Rule.”

Maroney, 953 S.W.2d at 646. The reason for this rule is set forth in Thummel v.

King, 570 S.W.2d 679, 685 (Mo. banc 1978):

One purpose of the requirement that this be done is the pragmatic

consideration that nothing is preserved for review if the question was

not properly presented to the trial court in the first instance. The bare

allegation that the trial court erred in failing to enforce, require, etc.,

is plainly inadequate because it does not identify any specific ruling

complained of and does not even give any indication of any point in

the trial of the case where the trial court was called upon to take such

affirmative action.

Here, it is not apparent from his points relied on whether Campisi is challenging

one or multiple rulings - nor is that information revealed at any point in Campisi’s

Statement of Facts, which fails even to identify the date on which the challenged ruling or

rulings occurred. Nowhere in his entire brief did Campisi identify or acknowledge the

singularly titled “After-Trial Motion By Party To Reconsider Judgment And To Amend

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Opinion To Set Aside Improper Waiver Of Appeal Rights,” the denial of which County

has chosen to address as the basis for Campisi’s appeal.

To arrive at the conjecture that it is the denial of Campisi’s “After-Trial Motion

By Party To Reconsider Judgment And To Amend Opinion To Set Aside Improper

Waiver Of Appeal Rights” which is being appealed, County has pieced together various

bits of information sprinkled throughout Campisi’s brief. Thus, County notes that denial

of this motion occurred by order dated November 21, 2007, and that Campisi’s

Jurisdictional Statement identifies the November 21st Order and Judgment as being that

which his appeal “involves.” Of course, the November 21st Order and Judgment also

granted County’s motion to strike Campisi’s allegations of ethical misconduct in addition

to having denied Campisi’s request for relief from the dismissal of the lawsuit, however,

Campisi’s brief does not appear to address the striking of those allegations and so by

deduction that leaves only the denial of the motion “to reconsider judgment and to amend

opinion. . . .” as the basis for all three points of Campisi’s appeal.

Notwithstanding County’s plausible speculation as to the ruling from which

Campisi appeals, the appeal should be dismissed for failure to comply with Rule 84.04.

A reading of Campisi’s Statement of Facts without reference to his Jurisdictional

Statement suggests that Campisi might be appealing the denial of requests to intervene

filed by Semco Plastics and Canaan Baptist Church; Campisi’s Statement of Facts ends

by stating that the court “in an order now marked a Judgment, denied [Semco and

Canaan’s] Motion to Intervene as untimely. Appellant filed this appeal on November 30,

2007.” Campisi’s Brief pgs. 9-10. Campisi is no less a party to that decision than he is to

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the underlying litigation, so the idea that he might appeal from the denial of third parties’

request to intervene is not implausible. Because neither County nor the reviewing court

should be in the position of having to guess at Campisi’s challenge and supply the points

he has failed to provide on his own, dismissal of the appeal is warranted.

IV. Trial Court Ruled Correctly That The County Counselor Acted Within

Her Authority To Settle The F.W. Weber Lawsuit Because The St. Louis

County Charter Commits The Management Of All Civil Litigation To The

County Counselor And Not To The County Council Or Individual Members

Thereof (Point III).

In Point III of his appeal, Campisi argues that “this Court should nullify the

Settlement Agreement as the County [Counselor] lacked the authority to enter into this

Settlement Agreement.” Campisi brief pg. 30. Interestingly, Campisi characterizes as “a

red herring” the County’s reliance upon Missouri case law in the proceedings below and

argues instead that the court should defer to the precedent of “sister states” in determining

the County Counselor’s authority under the County Charter. Campisi brief pg. 29.

Campisi does not discuss or analyze a single Missouri case addressing that authority.

Campisi himself acknowledges that “the County [Counselor] is singularly

responsible for prosecuting and defending cases involving St. Louis County.” Campisi

brief pg. 29. This singular responsibility is imposed on the County Counselor by Section

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5.030.1 of the County Charter, which provides for the County Counselor to have great

breadth of authority in managing the County’s legal interests:

The county counselor shall have charge of and conduct all of the civil law

business of the county, its departments, divisions, offices, officers, boards

and commissions. He shall institute, in the name and on behalf of the

county, all civil suits and other proceedings at law or in equity requisite or

necessary to protect the rights and interests of the county and enforce any

and all rights, interests or claims against any and all persons, firms or

corporations in whatever court or jurisdiction such action may be

necessary; and he may also appear and interplead, answer or defend, in

any proceeding or tribunal in which the county’s interests are

involved. . . .8

Additionally, the County Charter grants “all powers and duties vested by law in

county counselors and attorneys for any officer, office, board, commission or other

agency of the county” to the County Counselor. R.F. 270-271, County Charter Section

5.030.2. Section 56.640 R.S.Mo. confers upon county counselors of first class counties

the power to represent their counties and all departments thereof and “commence,

prosecute or defend … and exercise exclusive authority in all civil suits or action”

(emphasis added). Thus, the County Charter’s grant of exclusive authority to the County

8 Campisi erroneously quoted this section as providing that “The county counselor shall

have charge of and conduct all of the civil law business of the citizens of St. Louis County

and is charged with representing their interests.” Campisi brief, pg. 25.

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Counselor with respect to all civil litigation involving the County and its administrative

sub-parts, is buttressed by the directive in Section 56.640 R.S.Mo.

Clearly, Missouri courts have long recognized the authority of county attorneys to

manage the county’s litigation. In State ex rel. Lashly v. Wurdemann, 166 S.W.2d 348

(Mo. App. 1914), St. Louis County councilmembers9 had been collectively sued in

mandamus by an applicant seeking action on his dramshop license application. The

councilmembers retained counsel other than the prosecuting attorney, even though the

prosecuting attorney was required by statute to “prosecute or defend, as the case may

require, all civil suits in which the county is interested. . . .” Id. at 350. Notwithstanding

that the mandamus named the county councilmembers individually rather than making St.

Louis County the defendant, the court granted the prosecuting attorney’s request to

9 In 1914, the three-person legislative body for the County was then designated as the

“county court” rather than the County Council, and the legislators were identified as

“judges” instead of council members. State ex rel. McNary v. Hais, 670 S.W.2d 494,

495-496(Mo. banc 1984)(the “St. Louis County Council ‘is charged with the duties

normally performed by the county court in most counties’”)(citation omitted), see also In

re Incorporation of City of River Bend, 530 S.W.2d 704, 708 (Mo.App. 1975)(Missouri

courts “have not hesitated to substitute the words ‘county council’ for the words ‘county

court’”)(citation omitted). Also, the only attorney then designated to represent St. Louis

County was then denominated as the “prosecuting attorney” but today is the “County

Counselor”.

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assume control and manage defense of the case insofar as it was clear that the suit had

been brought to enforce a public duty and that the county had an interest in the matter.

The court relied on a separation of powers theory when it approved the County

Counselor’s representation of the County Council reasoning that the County Counselor

“derives his authority from as high a source as the county commissioners do theirs, and it

would be about as reasonable to say that the county attorney could employ another

[County Council]”. Id. at 350. Accordingly, both the County Counselor and the County

Council derive their separate powers from the County Charter – legislative to the County

Council and litigation to the County Counselor who is appointed by the executive branch.

R.F. 266-272, 273-324, County Charter, Section 2.010 et seq., Section 5.020 et seq. The

Wurdemann court underscored this separation of power argument by affirming that the

County Counselor “cannot be superseded or ignored by the [County Council].” 166 S.W.

at 350 (emphasis added).

Other cases likewise confirm the County Counselor’s authority. In State ex rel.

Pettis County v. Hon. Charles H. Sloan, 643 S.W.2d at 620, the county council members

had entered into a contract despite their county attorney’s advice that the contract was

void. 643 S.W.2d at 619. When sued by the contractor, the Pettis County council

members hired independent counsel to represent them. Id. The Sloan court concluded

that the Pettis County Council as non-parties, and without intervention, could not

disqualify the county attorney even if the county attorney’s position differed from their’s.

Id. at 620. The court confirmed that “no one could deny, in an action against the county,

the right and duty of the [county attorney] to control and mange the defense of the suit”

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and the county attorney has “autonomy … from the [legislative branch].” Id. The court

reasoned that “if the [county council] are allowed to prevail … a county could strip the

[county counselor], who by law is their attorney, of his statutory duties because his

advice was contrary to the [county council’s] by denominating such difference as a

“conflict”. Id., see also S tate v. Harris , 939 S.W.2d 915, 919 (Mo.App.W.D. 1996)

(County prosecutor held responsible for representing county employees “sued in their

official capacity”).

The County Counselor’s powers vis-à-vis St. Louis County parallel those granted

by the Missouri Legislature to the Attorney General. In State ex rel. Nixon v. American

Tobacco Co., after two and a half years of litigation, the Attorney General settled a suit

with various tobacco product manufacturers. 34 S.W.3d 122, 125 (Mo. banc 2000).

Several state legislators and citizens argued the Attorney General lacked authority to

settle the case on behalf of the State of Missouri. Id. at 126. Because the role of the

Attorney General is to protect the public interest, the court stated the Attorney General

had the authority to provide the “consent necessary to complete the transaction.” Id. at

135.

The court stated for the purposes of settlement of a civil lawsuit, the Attorney

General, “[i]n his role as attorney for the State, … represents the State of Missouri and its

citizens … . The settlement reached by the attorney general and the tobacco defendants

was made on behalf of Missouri citizens.” Id. In order words, the Attorney General, with

the statutory authority to litigate and defend civil cases, also has the corresponding power

to settle any such litigation. Id. at 135-136.

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The question of the County Counselor’s authority is long settled in Missouri and

Campisi’s reliance on other states’ law is inapposite. Equally inapposite is his reference

to Rule 4-1.2(a) requiring lawyers to “abide by a client’s decision.” Campisi asserts that

the County Counselor must consult “her client,” Campisi brief pg. 26, but has cited no

authority for the proposition that he (or the County Council) is “the client.” St. Louis

County is an entity, not an individual; while the County Council may be deemed to be

“St. Louis County” with respect to legislative decisions, it is the County Counselor who

speaks for “St. Louis County” with respect to legal decisions. With the thousands of

cases filed by and against St. Louis County each year, it is preposterous to suggest that

resolution of each one would require County Council approval.

Both the County Charter and state statutes, as uniformly interpreted by Missouri

courts, confer upon the County Counselor the responsibility for managing all County

litigation. Campisi’s argument to the contrary is without support and should be

overruled.

V. Trial Court Ruled Correctly That The County Counselor Did Not Violate

The Sunshine Law Insofar As The Settlement Agreement Was Made Public

Upon Signature Of The Parties (Points I And II).

Section 610.011.2 R.S.Mo. of the Missouri Sunshine Law requires that “all public

records of a public governmental bodies shall be open to the public for inspection and

copying as set forth in sections 610.023 to 610.026.” Section 610.023.3 requires that

governmental bodies make records available after receiving a request for access; there is

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no provision requiring anticipation of what request might be made or the preemptive

provision of records that may be of interest to particular individuals. Records are deemed

open and available if the public has access to the records for purposes of inspection and

copying. See Transit Cas. Co. ex rel. Pulitzer Publishing Co. v. Transit Cas. Co. ex rel.

Intervening Employees, 43 S.W.3d 293, 301 (Mo. banc 2001) (records of all courts are

open to the public if the public has access to the records for purposes of inspection or

copying). Yet without alleging that any request for the Settlement Agreement was made

and was denied, Campisi complains that the Sunshine Law was violated since “any

sensible definition of the duty to make ‘public’ . . . would minimally include notice to the

public agency . . . and include the Court file and the media on a matter of high notoriety

and public controversy.” Campisi brief pg. 11.

To state a cause of action under the Missouri Sunshine Law, a claimant must

allege “(1) a request for access to a public record was made; (2) such request was

received by the custodian of records; and (3) the custodian of records did not respond to

the request within three business days of receiving the request.” Anderson v. Village of

Jacksonville, 103 S.W.3d 190, 194-95 (Mo.App. 2003) (emphasis added). See also City

of Springfield v. Events Publ. Co., 951 S.W.2d 366, 370 (Mo.App. 1997) (any Missouri

Sunshine Law suit “must involve specific documents that the public governmental body

has been requested to reveal, as opposed to records that might be, but have not yet been,

requested”).

In support of his claim that the County Counselor violated the Sunshine Law,

Campisi offers the case of Librach v. Cooper, 778 S.W.2d 351, 352 (Mo.App.E.D. 1989).

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In Librach, a newspaper filed suit against Parkway School District after the school district

refused a request for access to a settlement agreement pursuant to which the school

superintendent resigned his employment. The court agreed that the settlement agreement

was a public record and ordered the school district to comply by “mak[ing] available to

plaintiffs for their inspection the Settlement Agreement and any other records pertaining

to payments made . . . pursuant to that Agreement.” Id. at 356. Thus, the County

Counselor’s providing of the Settlement Agreement upon request demonstrates

compliance with, not violation of, the Sunshine Act - as is evident from the only case

argued by Campisi on this point.

Campisi argues that the Missouri Sunshine Law requires the County Counselor to

announce or publicize every settlement agreement that is a “matter of high notoriety and

public controversy.” Campisi’s Brief, pg. 14.10 Campisi cites no cases that define “make

public” to include such activities. The only methodology of making a record “public”

dictated by the Missouri Sunshine Law is to “provide access to and, upon request, furnish

copies of” said record. Section 610.026.1 (emphasis added). Nowhere in its definitions

and provisions does the Missouri Sunshine Law require the County Counselor or any

public body to announce or publicize each public document, or settlement agreement in

particular. Nor do the provisions of the Missouri Sunshine Law require a public body to

provide notice by filing a settlement agreement with the trial court and media as

suggested by Campisi. Campisi’s Brief, pg. 14,19.

10 See Tuft v. City of St. Louis, 936 S.W.2d at 116-117(Missouri Sunshine Law makes no

distinction whether public record is usual or typical).

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The record submitted by Campisi is devoid of reference to any refused request for

access to the Settlement Agreement. In fact, Campisi admitted he received a copy of the

Settlement Agreement. Campisi brief, pg. 8.11 Consequently, the Court should deny

Campisi’s requests for relief due to alleged violations of the Sunshine Law.

Conclusion

For the foregoing reasons, the St. Louis County Council and St. Louis County

respectfully pray that this Court dismiss Campisi’s appeal and/or affirm the trial court’s

denial of Campisi’s After-Trial Motion.

Respectfully submitted,

PATRICIA REDINGTON

11 Campisi states that “[h]e was forced to seek a copy of the judgment and Settlement

Agreement on his own.” While it is not part of the record or even relevant to the issue, it

should be noted that Campisi in fact chose to “seek a copy” from the County Counselor.

Campisi also included as part of the record a message from the County Counselor to one

of Campisi’s constituents in which it is evident that the County Counselor voluntarily

provided a copy of the Settlement agreement even prior to receiving a request for it. L.F.

112.

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COUNTY COUNSELOR

________________________Lorena V. Merklin von Kaenel, #42035Assistant County CounselorSt. Louis County Counselor’s Office41 South Central Avenue, 9th FloorSt. Louis, Missouri 63105Office: (314) 615-7042Facsimile: (314) 615-3732E-mail: [email protected]

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Certificate of Compliance

I hereby certify pursuant to Rule 84.06(c) that this brief (1) contains the

information required by Rule 55.03; (2) complies with the limitations contained in

Rule 84.06(b); and (3) contains 6,310 words, exclusive of the sections exempted by

Rule 84.06(b)(2), based on the word count that is part of Microsoft Word 2000 SP-3.

The undersigned counsel further certifies that the diskettes filed with the Court and

served on opposing counsel have been scanned and are free of viruses.

_____________________________________________Lorena V. Merklin von Kaenel

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Certificate of Service

I certify that two true copies of this brief and one diskette containing this brief (which has been scanned and found to be free of any viruses) were mailed on June 16, 2008, via First Class U.S. Mail, postage prepaid, to:

Mr. Jeffrey B. HuntGallop, Johnson and Newman101 South Hanley Road, Suite 700St. Louis, Missouri 63105

Mr. Lester C. Stuckmeyer, Jr.105 Concord Plaza, Suite 209St. Louis, Missouri 63128

Mr. Kirk Stange1750 South Brentwood BoulevardSuite 401Brentwood, Missouri 63144

_________________________________________Lorena V. Merklin von Kaenel

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Documents

IN THE CIRCUIT COURT OF ST - Washington …law.wustl.edu/Events/2008-2009/BriefsSept.24/90625... · Web view... this Court lacks jurisdiction to hear Campisi’s appeal of his “After-Trial