Malin v. Cole Cty. Prosecuting Att'y

• Docket Number: WD 85703
• Decision Date: 19 December 2023
• Citation: 678 S.W.3d 661
• Parties: Aaron M. MALIN, Appellant, v. COLE COUNTY PROSECUTING ATTORNEY, Respondent.
• Court: Missouri Court of Appeals

678 S.W.3d 661

Aaron M. MALIN, Appellant,

v.COLE COUNTY PROSECUTING ATTORNEY, Respondent.

WD 85703

Missouri Court of Appeals, Western District.

Opinion filed: September 19, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied October 24, 2023

Application for Transfer Denied December 19, 2023

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI, THE HONORABLE DANIEL R. GREEN, JUDGE

David Roland, Mexico, MO, for Appellant.

Anthony E. Rothert, St. Louis, MO, Co-Counsel for Appellant.

Jessica M. Steffan, St. Louis, MO, Co-Counsel for Appellant.

Michael G. Berry, Jefferson City, MO, for Respondent.

Division One: Mark D. Pfeiffer, Presiding Judge, Alok Ahuja, Judge and W. Douglas Thomson, Judge

W. DOUGLAS THOMSON, JUDGE

Aaron M. Malin ("Malin") appeals the judgment of the Circuit Court of Cole County ("trial court") denying his motion to enforce a previous judgment entered against the Cole County Prosecuting Attorney ("the Prosecutor") for multiple violations of the Sunshine Law. Malin raises three points on appeal, asserting the trial court erred in (1) "holding that the [Prosecutor]’s search for responsive records was sufficient under the Sunshine Law because the proper legal question was whether the search was sufficient under the wording of the Original Judgment," (2) holding it was required to deny the motion on principles of collateral estoppel, law of the case, and the public policy of finality, and (3) denying the motion "on the basis that the [Prosecutor]’s offer to search for records at Malin’s cost complies with the Sunshine Law …." We reverse and remand.

Factual and Procedural History¹

[1] The case before us is the latest in a series of litigation between Malin and the Prosecutor concerning a Sunshine Law dispute that began in 2015. We have twice issued opinions on questions pertaining to this litigation in Malin v. Cole Cty. Prosecuting Att’y, 565 S.W.3d 748 (Mo. App. W.D. 2019) ("Malin I") and Malin v. Cole Cty, Prosecuting Att’y, 631 S.W.3d 638 (Mo. App. W.D. 2021) ("Malin II").²

In 2015, Malin made three separate records requests to the Prosecutor. In each request, Malin asked the Prosecutor to advise whether the Prosecutor would condition the search for or copying of records by the payment of fees, arid if so, the amount of the fees. The Prosecutor responded to the requests, sometimes untimely, with general objections. The Prosecutor also indicated that the requests were too burdensome and that any searching for responsive documents would simply not be performed, all while declining to confirm or deny the existence of the requested records. The Prosecutor never advised Malin that the search for or copying of records would be conditioned on the payment of fees as permitted by § 610.026.³ Malin subsequently filed a petition alleging that the Prosecutor had committed Sunshine Law violations. The Prosecutor answered Malin’s petition by denying the allegations of Sunshine Law violations. The Prosecutor did not allege that its obligation to respond to Malin’s Sunshine Law requests were subject to the condition that Malin pay costs and fees for searching for and copying records. Malin moved for summary judgment, and the trial judge, The Honorable Patricia Joyce, ruled in his favor. Judge Joyce’s judgment ("Original Judgment") decreed:

1. Defendant knowingly and purposely violated the Sunshine Law.

2. Defendant must search for, and produce all open records responsive to Plaintiff’s requests, which, includes the following:

a) any correspondence or communication between the Office of the Prosecuting Attorney of Cole County (or its associates/employees) and the MUSTANG drug task force (or its associates/employees);

b) any indictments handed down in Cole County between July 1, 2014 and the present, limited to indictments for selling narcotics in public housing; and

c) any Sunshine Law (or open records) requests received by the Cole County Prosecutor’s Office, as well as any responses provided, between January 1, 2015 and the present.

3. Defendant is ordered to pay a $12,100 civil penalty to Plaintiff.

4. Defendant is further ordered to pay Plaintiff’s costs and reasonable attorneys’ fees in the amount of $24,070.00. This judgment is final for purposes of appeal.

The Original Judgment thus declared that a Sunshine Law violation had occurred and ordered the Prosecutor to search for and produce all open records requested by Malin. The Original Judgment did not condition this unambiguous directive on the payment by Malin of costs and fees associated with searching for or producing the open records.

The Prosecutor appealed the Original Judgment, and our court affirmed in Malin I. In March of 2019, the Prosecutor paid the monetary part of the Original Judgment and directed personnel to begin searching for responsive records. This led to the production of a number of records to Malin. The production of some, but not all, open records responsive to Malin’s request was not conditioned on the payment of any costs or fees associated with searching for or producing the open records, consistent with, the terms of the Original Judgment.

However, Malin was dissatisfied with the Prosecutor’s efforts concerning the production of records, and consequently filed a Motion for Civil Contempt on June 12, 2019, "alleging in general that [the Prosecutor] was in contempt for failing to produce records as required in [the Original Judgment]." After the filing of this motion, the Prosecutor provided a number of other documents to Malin, and also indicated at that time that additional documents might be discovered through a forensic review of the office’s IT systems. The Prosecutor offered to discuss the cost for undertaking such a search.

On June 30, 2019, the Prosecutor filed a response to Malin’s Motion for Civil Contempt, including therein a "Motion for Entry of Satisfaction of Judgment," which requested that the court "enter satisfaction of judgment or [sic] record for the Court’s judgment on civil penalties and attorney’s fees." On July 1, 2019, Malin filed a "Partial Satisfaction of Judgment," in which he acknowledged that the Prosecutor had paid in full the civil penalties and the attorneys’ fees that had accrued at the time our court issued the opinion affirming the Original Judgment. The "Partial Satisfaction of Judgment" also acknowledged that the Prosecutor had fulfilled the Original Judgment’s requirements with respect to Malin’s second and third records request, but contended the Prosecutor had not fulfilled the Original Judgment’s requirement that the Prosecutor "search for and produce all open records" responsive to Malin’s first request, which included "any correspondence or communication between the Office of the Prosecuting Attorney of Cole County (or, its associates/employees) and the MUSTANG drug task force (or its associates/employees)[.]"

Following a hearing on the Motion for Civil Contempt, Judge Joyce issued her judgment denying the motion ("Contempt Judgment"). In finding, no contemptuous behavior on the part of the Prosecutor, Judge Joyce focused on the Prosecutor’s efforts to comply with the Original Judgment, stating,

The Court concludes that Malin failed to meet his burden of proof to show that [the Prosecutor] failed to abide by the Court’s [Original Judgment]. [The Prosecutor] made a good faith search for records responsive to Malin’s Sunshine Law requests, produced records to the extent he could locate them, and offered a forensic search for additional records by an outside information technology firm if Malin wanted to pay for that. Moreover, [the Prosecutor] paid Malin’s money judgment promptly and in full, showing good faith from the outset. As an additional and alternative basis for overruling Malin’s motion, the Court finds that [the Prosecutor] has met his burden to show that he did not act in intentional contempt for the Court or its orders.

Malin appealed the Contempt Judgment, which our court affirmed in Malin II. There, we found that "[t]he [Contempt] Judgment does not amend the [Original] Judgment,[ ] does not declare the [Original] Judgment fully satisfied, and does not prohibit further efforts by Malin to seek to enforce it. Rather, it merely disposed of the only issue then pending before it – Malin’s Motion for Contempt." 631 S.W.3d at 645 (footnote omitted). We emphasized that "[t]he trial court, in fact, lacked authority in the instant action to amend the [Original] Judgment. Once a judgment becomes final, the trial court loses jurisdiction to entertain further motions to change, alter, or modify the final judgment." Id. at 645 n.2 (citations omitted). We also clarified that Judge Joyce’s finding "that Malin failed to carry his burden of proof of demonstrating a violation of the court’s orders" was confined to the denial of his Motion for Civil Contempt. Id. at 645 n.3. We further stated,

We express no opinion on what impact that finding would have in any future action taken by Malin to seek enforcement of the [Original] Judgment, or what impact it would have in any future action taken by the Prosecutor to seek a declaration that the [Original] Judgment has been fully satisfied.

Id.

Prior to Malin’s appeal of the Contempt Judgment, he had filed a Motion to Enforce Judgment, the motion at issue on this appeal. The motion sought enforcement of the Original Judgment, asserting "[t]he Prosecutor has failed to comply with the [Original Judgment] because it has not searched all records the Prosecutor retains for records responsive to the First Request."⁴ Malin’s prayer for relief requested the trial court to therefore enter an order:

A. Finding that the Prosecutor has not complied with the [Original Judgment];

B. Ordering the Prosecutor within thirty (30) days of the Court’s Order to:

1) Obtain from the MUSTANG drug task force a list of officers who have served on that task force and the dates on which they served;

2) Conduct a search of each computer used by the Prosecutor’s office...