Plaintiff’s Reply to Defendant’s Answer

Comes now the Plaintiff, Lee Allen Martin, pursuant to Missouri Supreme Court Rule 55.25 (b) and does reply to the Answer filed with the honorable court on the 28^th day of June 2001.

Plaintiff notes that the Answer of Defendant maintains many denials of allegations made by the plaintiff. These denials are issues of fact to be determined by the honorable court. However, the response to the complaint by and through the defendant’s Answer is governed by Missouri Supreme Court Rule 55.03. Missouri Supreme Court Rule 55.03(b) fully states:

This rule provides for the honest and ethical answer to a complaint so that the courts will be able to provide a speedy resolution to the actions brought before it. Rule 55.03 also provides for the court to put sanctions upon any litigant that fails to comply with the ethical response demanded by the Missouri Supreme Court Rules. With that said the plaintiff now proceeds to reply with the answer and defenses of the defendant.

As to the Answer

1) Defendant Admits that the Department of Revenue is an Executive Agency of the State of Missouri, and therefore, a public governmental body as defined by 610.010 (4)RSMo.

2) Defendant admits that the Custodian of Records for the Department of Revenue is the Director of Revenue one Carol Russell Fischer as provide for by 610.023 (1) RSMo.

3) Defendant admits that plaintiff did make a formal request for public records on the 24^th day of March 2001.

4) Defendant admits that response dated April 5^th 2001 was the response required in 3 working days pursuant to 610.023 (3) RSMo. However, in paragraph 6 of the defendant’s Answer Defendant states that further information was requested. In attachment #2 of the Plaintiff’s Complaint no additional information was directly requested by the defendant. Informal allegations of needed information that would tend to circumvent the clear and liberal intent of the Sunshine law is not a request for more information.

5) Defendant does deny the plaintiff’s allegation that he has been effectively denied access to public records. However, no records have been produced and the defendant does not so state that any records have been produced. Further, the defendant has yet to allow the plaintiff to view the public records.

6) Defendant denies that not more than 30 days have elapsed since the denial of said request, pursuant 610.023.4. Yet has not stated how the access to public governmental records was accomplished.

7) Defendant admits that the action has been brought within one year after the cause of action arose. Further, Defendant does admit to a cause of action by the plaintiff, and that this action was commenced within one year of the acknowledge receipt for request of public records as provided in 610.027.4 RSMo.

8) Defendant does deny that Plaintiff is and has been a resident of the State of Missouri. Defendant states in Paragraph 10 of the Answer that defendant is “without sufficient knowledge or belief to answer”. I would refer this honorable court to the judicial record of the Southern District Court of Appeals Appeal # 21211-1, Appeal #23071-1, and Appeal #23604-1. Where Defendant department by and through counsel, James A. Chenault III, did have actual knowledge of the plaintiff and his residence.

9)Defendant in paragraph 13 of the Answer does deny that the Driver’s License Application is maintained in electronic format. Yet, in the response dated April 5^th 2001 paragraph 2 states the record is maintained in a program.

10) Defendant denies that the Policy and Procedures are in an electronic format. Even though the Counsel for the Defendant stated on June 6^th 2001 in a telephone conversation that these documents were on the internet, and never gave the plaintiff the URL of these documents thus still denying plaintiff access to public records.

11) Defendant in Paragraph 15 of the Answer denies the misrepresentation of the department as to the OATH duly requested by the Plaintiff. At this time the plaintiff cites Article VII section 11 of the Missouri Constitution as applied by the Revised Statutes of the State of Missouri.

12)Defendant in Paragraph 16 of the Answer does deny the nature of Driver’s license applications and misstates Title 18 section 2721 (b) 5.

13) Defendant in Paragraph 17 of the Answer does deny that denial to view public records is in violation of the Sunshine law.

14) Defendant in paragraph 18 of the Answer that the defendant does admit to the nature of the documents in question. However, as previously stated, counsel for defendant admitted in phone conversation with plaintiff that this information was on the internet, further the response of April 5, 2001 states that the application is in a “program”. It should be noted that RSMo 302.120 specifically requires an application for driver’s license.

15)Defendant does deny in paragraph 19 of the answer that the April 5, 2001 response was done out of time as set down in RSMo 610.023.

As to Affirmative Defenses

FIRST DEFENSE

Plaintiff relies upon RSMo 610.027.2 Which states: Once a party seeking judicial enforcement of sections 610.010 to 610.026 demonstrates to the court that the body in question is subject to the requirements of sections 610.010 to 610.026 and has held a closed meeting, record, or vote, the burden of persuasion shall be on the body and its members to demonstrate compliance with the requirements of the sections 610.010 to 610.026. The Department of Revenue is a public governmental body. The records requested are public governmental records used in the daily operations of the public governmental body, and said public governmental records have not been provided as requested nor has the public governmental body provided for viewing of these public governmental records. The Plaintiff is a citizen of the state of Missouri, and the action has been brought in the county of the agency’s principle residence, Cole County.

There should be no dismissal pursuant to Missouri Rule of Civil Procedure 55.27(a)(6). Further the defendant has already admitted to a cause of action by the plaintiff in paragraph 9 of the Answer.

SECOND DEFENSE

Defendant does misstate the nature of the Action before the honorable court in the Second Defense. This is an Action brought pursuant to Rule 87 of the Missouri Supreme Court Rules as established in 610.027 RSMo. Mo. S. Ct. Rule 87.02 (c) and (d) specifically states that a director of an Executive Agency can be made a defendant in this form of action. Further, the principle of Sovereign Immunity and or Official Immunity is only provided for in a tortuous act. This action is for declaratory judgment and is not a tortuous Act. The Defendant as the Director having duly appointed herself as the official Custodian of Record for the Department has brought the intimate nature of the custodian and director into this action. As both are one in the same the purposeful act of the custodian is also the purposeful act of the director.

Immunity is not a defense and therefore director should not be dismissed.

THIRD DEFENSE

The Third Defense of the defendant that being any other affirmative defense that may arise after the 30 days to answer is not provided for in Mo. S. Ct. Rule 55.27. The request to be allowed to amend the Answer after 30 days is not provided for and would be an abuse of discretion.

FOURTH DEFENSE

The Defendants Fourth Defense that being an objection to Plaintiff being allowed to file as a poor person is baseless. 610.027 RSMo allows any citizen of the state of Missouri to bring this type of action without regards to the financial nature of the plaintiff. Plaintiff restates what is all ready in the affidavit to proceed as a poor person. He is unemployed and without means to pay the filing fee. Defendant is in possession of the financial records as the director of revenue and has made a baseless claim. Further, Defendant is in possession of the show cause while appellant, Lee Allen Martin, should be allowed to proceed in Forma Puperis in Missouri Southern District Appeal #21211-1. Plaintiff would ask the honorable court take judicial notice of this official record before dismissing this action for not paying a filing fee.

Wherefore, the ethics of the contradictory statements made by the defendant counsel have been brought into question. The defenses of the defendant are without basis. And, there is material issues of fact to be determined by the trier of fact, the Honorable Judge. The Plaintiff must request that the action proceed in a speedy and orderly manner. Further subterfuge and delay upon the defendants part should be sanctioned as any misstatement of law or fact in violation of the OATH taken by the learned counsel for the defendant.

Plaintiff does ask that discovery in this action begin at once, and that the honorable court so order. If the Court would like a discovery schedule Plaintiff asks that the Court so Order one.

Respectfully Submitted

Lee Allen Martin

7050 County Road 2810

West Plains, Missouri 65775

Phone # 417-256-4654

Comes now the plaintiff, Lee Allen Martin, and does swear and affirm that one true and accurate copy of the foregoing was mailed first class mail to the defendant’s counsel Keith D. Halcomb bar # 43941 to his place of business P.O. Box 899 Jefferson City, Missouri 65102-0899, on this the 5^th day of July 2001.

So certified: _______________________________

Lee Allen Martin

Comes now the Plaintiff and does notice up the foregoing to be heard as first appearance on the 27^th day of July 2001 on or about 1:00 pm or as soon there after as may be.

_____________________________________

Lee Allen Martin