In February, Jefferson City lawyer Marc Ellinger filed a Sunshine Law request.
This is a good thing. Every day, residents, journalists and lawyers from across the state file such requests for public information to see what our elected officials are up to and to hold them accountable.
Ellinger was seeking a list of union employees and their personal information from the American Federation of State, County and Municipal Employees union. The union has a contract with the state, and that contract requires the information Ellinger was seeking to be public. Ellinger filed his request on behalf of a conservative nonprofit called United for Missouri, which was founded primarily with funding from St. Louis billionaire Rex Sinquefield.
Sinquefield is currently paying Ellinger about $80,000 a month as a consultant advising the city of St. Louis on the process to privatize its airport, but more on that later.
The state didn’t provide Ellinger the full documentation he was seeking.
So, on behalf of United for Missouri, he sued, citing a Sunshine Law violation. In the lawsuit, he used a bold font for the key words in the Sunshine Law —often ignored by public officials seeking to hide their business from the public — that such records in Missouri “shall be presumed to be open,” unless there is a specific exemption allowing them to be closed.
A month later, Clayton attorney Mark Pedroli filed a similar lawsuit.
Pedroli and his Sunshine and Government Accountability Project had sought emails from a variety of members of the Missouri House, but received them full of redactions. That’s because the House passed an internal rule that purported to allow it to bypass the Sunshine Law, even though voters had just amended the state constitution to specifically apply the Sunshine Law to members of the Legislature. During debate of the rule, some Republican representatives, particularly Rep. Nick Schroer, R-O’Fallon, cited an odd First Amendment defense of “an expectation of privacy” as the key reason for their rule that allows elected representatives to skirt the Sunshine Law.
That argument is ridiculous, Pedroli argues in his lawsuit.
“The reality is that they are attempting to create a framework of exceptions to Open Records laws that will allow elected officials to conceal their communications to, and from, wealthy political donors, lobbyists seeking favor, dark money groups, and even large constituent corporations,” the lawsuit states. “Neither federal nor state law supports this radical interpretation of the law.”
Pedroli also argues that the House can’t create rules to attempt to bypass the constitution.
The man who would normally defend the House in such a lawsuit, Attorney General Eric Schmitt, agrees with Pedroli. He said so in a letter to Gov. Mike Parson earlier this year, when Parson’s office made a similar First Amendment argument to allow redactions of personal information in response to Sunshine Law requests.
“We recommend that your office not rely on the First Amendment for blanket redactions of personal contact information,” Schmitt’s office wrote to the governor in August.
Sounds like Schmitt agrees with Pedroli.
This brings us back to Ellinger.
Because the attorney general has a conflict in the case, he allowed the House to pick its own attorney.
Sure, Ellinger’s sugar daddy also happens to be the biggest campaign donor to Schmitt and many members of the House, but never mind that.
It’s true that Ellinger has “experience and expertise” in the Sunshine Law, which is why Schmitt’s letter appointing him at $140 an hour says he was chosen.
In fact, Ellinger has experience in the precise issues involved in this case.
In 2018, Ellinger represented various Republican interests, including the Missouri Chamber of Commerce, that sued to try to keep the Clean Missouri amendment off the ballot.
He lost. Clean Missouri won big. And that means that the Sunshine Law applies to elected representatives in the Missouri House.
“When the House of Representatives asks the attorney general to defend them, and the attorney general refuses because he agrees with the plaintiff, that’s typically what’s referred to as a ‘problem,’” Pedroli says.
Indeed, it is. Thanks to Pedroli, Ellinger might have another Sunshine Law problem to worry about. On Friday, Pedroli filed a separate lawsuit against St. Louis alleging multiple violations of the Sunshine Law regarding the airport privatization process. That’s the process by which Ellinger is being paid handsomely to provide legal advice for the city as it pursues private bidders for its biggest asset.
The multiple Sunshine Law actions involving Ellinger create for some interesting possibilities.
Imagine Ellinger arguing before a Cole County judge one day that he should have access to home addresses of union members, and the next day arguing before the same judge that elected members of the House of Representatives should be able to redact the exact same information.
Meanwhile, in St. Louis, Pedroli will have an important question to ask Ellinger in a case in which he may well end up as a witness:
In Missouri, are public records “presumed to be open,” or aren’t they?