MOTION FOR REHEARING, OR ALTERNATIVELY, FOR TRANSFER TO THE SUPREME COURT

Comes now the Appellant/Plaintiff and ask that the Court of Appeals for the Western District revisit its Opinion penned on the 20th day of May 2003 in the case of Martin v. Director of Revenue, et. al. pursuant to Mo.S.Ct. Rule 84.17.

In the Opinion issued on the 20th day of May 2003 the court of appeals, sua sponte, addressed the issue of jurisdiction. As the issue was not presented in the appellant brief, the appellant amended brief, and the respondent brief, appellant calls attention to the following points of law and fact that may have been overlooked by the Western District Court of Appeals.

The following points of law and fact that may have been overlooked:

1. The Original action was a petition for Declaratory Judgment brought pursuant to RSMo 610.027.
2. Plaintiff/appellant was allowed to proceed in forma pauperis, as a poor person.
3. Pursuant to Chapter 610 of the RSMo the action must be brought within one year and no later than 2 years.
4. A public record is defined generally in the Sunshine Law as including any record retained by any public governmental body. § 610.010(6). "'It is the public policy of this state that . . . records of public governmental bodies be open to the public unless otherwise provided by law. Sections 610.010 to 610.028 shall be liberally construed . . . to promote this policy.'"
5. The records that are in question are
   1. The application for a Driver License pursuant to Chapter 302.120 of the RSMo.
   2. The Oath of Office for department personnel.
   3. The policy and procedures for department.
6. The Trial court did enter default judgment of the 19th day of June 2002 finding that plaintiff was rude and abusive to an officer of the court and attempting to frustrate a deposition, page 10 of the legal file and page 60 of the transcript.
7. The Trial Court did strike all pleadings of the plaintiff/appellant and did assess cost of the deposition as well as the action to the plaintiff/appellant page 10 of the legal file and page 60 of the transcript. The Appellant Court in footnote 2 page 2 of the Opinion, "Appellant's primary objection appears to have related to the inability of the court reporter to recite her oath of office to him on his demand." Which statement is maintained in the official record at page 27 of the legal file, by Ms. Sonntag.
8. The testimony of Assistant Attorney General Kraus on the 19 day of June 2002, page 23 of the transcript, fails to provide a rude statement at the deposition on the part of the plaintiff/appellant.
9. Assistant Attorney General Kraus testified on the 19 day of June 2002, page 43 of the transcript that plaintiff/appellant was never out of character.
10. The finding of the trial court that plaintiff/appellant was rude and abusive to an officer of the court is not founded. The Supreme Court of the United States has found in Ungar v. Sarafite, 376 U.S. 575 (1964) "We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions." "Judges are supposed to be men of fortitude, able to thrive in a hardy climate." Craig v. Harney, 331 U.S. 367, 376 (1947).
11. Mo.S.Ct. Rule 57 demands that objections to the qualifications of a court reporter must be made at the earliest possible time, preferably before deposition begins. In Holt v. Virginia Justice Black stated: "As previously stated, the words used in the motions were plain English, in no way offensive in themselves, and wholly appropriate to charge bias in the community and bias of the presiding judge. The Supreme Court of Appeals of Virginia considered the motion for change of venue "a vehicle to heap insults upon the court, a studied attempt to smear the judge." 205 Va., at 338, 136 S. E. 2d, at 814. But if the charges were "insulting" it was inherent in the issue of bias raised, an issue which we have seen had to be raised, according to the charges, to escape the probability of a constitutionally unfair trial." HOLT ET AL. v. VIRGINIA 381 U.S. 131.
12. The Trial court record is maintained in the record on appeal, official transcript for hearing on the 19th day June 2002.
13. Trial Court did responded to appellant question: "Your Honor, is that going to be denoted a final judgment?" To which the Court response was: "Judgment of Dismissal, believe me, is a final judgment." Line 19 through 22 page 60 of the transcript.
14. The transcript reads on Page 60 "This Court hereby orders your pleadings stricken in total. Judgment of Dismissal of your case is entered." Lines 5 through 7
15. The Opinion of the Appellant Court is a Dismissal for Lack of Appellant Jurisdiction as Trial Court Dismissal was without prejudice and not a final judgment.  Quoting Chromalloy Am. Corp v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997) Chromally states: "An appeal from such a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum. City of Chesterfield v. Deshetler Homes, 938 S.W.2d 671, 673 (Mo.App. E.D. 1997). The Eastern District Court of Appeals found: "If the dismissal was such that re-filing of the petition at that time would have been a futile act, then the order of dismissal is appealable. Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo. App. E.D. 2000).
16. The trial Court statement on page 60 of the transcript as to the finality of the judgment does preclude the plaintiff/appellant from bringing the action in the form cast. The clear meaning of the Trial Court Judgment as stated for the record on page 60 of the transcript was to strike all pleadings and assess all cost.
17. Construing the phrase "at the expense of the public governmental body" liberally, we conclude that the legislature meant that a public governmental body should pay the attorney fees of its opponent when such body brings a declaratory judgment pursuant to § 610.027.5. We note that a public body would bear any burden of expense for the two other options under § 610.027.5. Neither requesting an opinion of its own counsel nor requesting an opinion of the Attorney General is an adversary proceeding requiring the active participation of another party. A public governmental body would naturally pay for the expense of its own counsel to render an opinion regarding compliance with the Sunshine Law. A public governmental body would also bear the expenses required for its employees to prepare and apply for an opinion of the Attorney General. Since the public governmental body chooses what avenue to take under § 610.027.5, and must bear the expenses of the other two options, it follows that the public governmental body must bear all of the expenses of an action for declaratory judgment. CITY SPRINGFIELD v. EVENTS PUBLISHING CO. 951 S.W.2d 366
18. Pursuant to State ex rel. Mo. Local Gov't Retirement Sys. v. Bill, 935 S.W.2d 659, at 666: "Not requiring the public governmental body to bear Bill's expenses would open a means for public governmental bodies to thwart the public policy underlying the open meetings and records law. The agency would be free to 'test' the determination of anyone requesting its records by filing a lawsuit, putting that person in the dilemma of not defending his or her request in court or enduring the significant expense of doing so."
19. In Hemeyer v.KRCG-TV, No. SC81610 the Supreme Court Found: "Since the government must bear all attorney fees for all parties regardless of outcome, the Court's construction will only serve to encourage meritless challenges, unnecessary discovery and motions, and frivolous appeals when a governmental body seeks judicial guidance regarding open records. Moreover, the interpretation will ensure that governmental bodies will not seek such guidance, and parties requesting disclosure will be forced to file suit in doubtful cases. That is inconsistent with a "liberal interpretation" that promotes disclosure. Sec. 610.011."
20. The opinion of the Appellant Court finds that defendant/respondent did end the deposition.
21. The testimony of the Assistant Attorney General, Mr. Kraus, on the 19th day of June is that the deposition ended at 10:20 am, page 31 of the transcript.
22. The deposition was to begin at 10:30 on the 21st day of May as stated by Mr. Kraus under oath on page 31 line 11 of the transcript, and page 33 of the legal file.
23. The defendant/respondent never called a deposition to order, only demanded that the appellant/plaintiff be sworn,  page 49 of the legal file lines 8 and 9.
24. The plaintiff/appellant did allow the defendant respondent to try and obtain another court reporter for the deposition. (page 14 of the transcrit lines 14 - 22)
25. The actions of the trial court are predicated on prejudice upon the defendant/respondent case. There has been no showing of prejudice upon the case of the defendant/respondent. The defendant/respondent did not make a showing of prejudice at the hearing of the 19th of June 2002, and has not made one in the Respondent Brief. Plaintiff/appellant has asked for such a finding in the Amended Appellant Brief in request for findings #13.
26. Appellant has requested Finding of Facts and Conclusion of Law in the Amended Appellant Brief.

Argument

The action of the trial court was to strike pleadings and access cost. Cost pursuant to CITY SPRINGFIELD v. EVENTS PUBLISHING CO. 951 S.W.2d 366, Hemeyer v.KRCG-TV, No. SC81610, and State ex rel. Mo. Local Gov't Retirement Sys. v. Bill, 935 S.W.2d 659, all state are the responsibility of the public governmental entity. The finality of the judgment is apparent from a clear reading of the transcript, "believe me". In light of the trial courts statement on page 60 of the transcript it was the clear intent of the trial court that no refiling of the action would be permitted. The trail court having erroneously found contumacious disregard for the authority of the court in this action and having failed to find prejudice on the part of the defendant case to prove that the public governmental records in question were somehow closed and that upon deposition of the party requesting the public governmental records would somehow prove the nature of the records in question. It is well founded that once a party shows that the defendant is a public governmental body, and that they have held a public governmental record closed the burden is upon the public governmental body to prove otherwise.

Plaintiff/appellant did attend deposition. The appellant is poor and is without means, but the issue of the nature of the documents in question have not been addressed. The clear meaning of the Mo. State Constitution Art. 1 sec. 14 is that a speedy decision should have been made in this case. The holdings in Hemeyer v.KRCG-TV, No. SC81610, State ex rel. Mo. Local Gov't Retirement Sys. v. Bill, 935 S.W.2d 659, and CITY OF SPRINGFIELD v. EVENTS PUBLISHING CO. 951 S.W.2d 366 warn that such as the actions in this case could and would happen without the oversite of the judiciary. The judgment of the trial court on June 19 2002 was final as it brought about a futility of refiling the Petition for Declaratory Judgment. It must be considered in light of the lack of prejudice, and the lack of an order pursuant to rule 61 that

As to Transfer to the Supreme Court

The practice of finding lack of appellate jurisdiction do to flaws in the judgment is in fact the policy, practice and custom of the judiciary and the reviewing appellant courts of the State of Missouri designed to violate the clear meaning of Article 1 Section 14 of the Missouri State Constitution rather than to make the required findings of fact and conclusion of law as to the merits of the issues concerning the actors for the state of Missouri.

The Missouri Constitution's Bill of Rights, article I, section 14, provides: "That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay."

1. This is not the first time the court of appeals for the state of Missouri has found the trial court could not create the prescribed final judgment pursuant to Lowery v. Air Support International, Inc., 971 S.W.2d 323, 324 (Mo.App. S.D. 1998). In Martin v. Director of Revenue 10 S.W.3d 618, SD #23071, the southern district court of appeals also found that the presiding judge of the 37th Judicial Circuit was unable to write a final judgment. The flaws in the presumed judgment in #SD 23071 are well documented and published.
2. When a search is done on the Missouri Court Opinions, 79 cases are found for the search word "no final judgment". This shows a continuing practice of the Bench in the State of Missouri to deny due process of law. The Appellant Court's "inherent power to prevent miscarriages of Justice in a proper case." Mooney, 670 S.W.2d at 515-16, taken in the context of Article 1 section 14 of the Missouri State Constitution would in fact demand judgment on the merits of a case before the Courts of the State of Missouri. Justice Douglas quoting William Penn in Illinois V. Allen 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 35 stated: "Certainly, if the common law be so hard to be understood, it is far from being very common; . . . ." When agents for the state of Missouri are allowed to plead ignorance of the provisions of Chapter 610 of the RSMo, or when the judiciary of the state of Missouri fails to adhere to the Mo.S.Ct. Rules with the same fervor that is required of a pro se litigant, or when asking agents of this state to know the oath of office by which they operate leads to dismissal of actions, the common law is far from being common. These actions rise to the level of denying due process and equal protection.

The foundation of a fair judiciary resides in the court of record. It is well-established that a court speaks only through its records. State ex rel. Nassau v. Kohn, 731 S.W.2d 840, 843 (Mo.banc 1987) A court of record speaks only through its records, which import absolute verity. Brown v. General Motors Assembly Div., 695 S.W.2d 501, 502 (Mo. App. E.D. 1985). In JEFF TURNAGE v. STATE MISSOURI 782 S.W.2d 755 "To do so would make a mockery of an orderly system of Justice where accurate written records of court proceedings are the cornerstone of our judicial system." In Turnage the Southern District warned of the "mockery" that is created in the failure to maintain faithful and accurate records. The record of the 19th Judicial Circuit is called into question in the response to the official sunshine request presented to the court reporter for the Honorable Judge Thomas Joseph Brown III, Pam Fick on the 27th day of June, 2002 (attached). The response, dated July 17, 2002, is maintained in the court file of this case as an exhibit to request extension of time to file the record on Appeal. The simple one line response to request of public records "Judiciary personnel do not fall under the Missouri Sunshine Law."(attached) This illegal reply to a request for public records is a contumacious disregard for the authority of the legislature and the government of the people by the people and for the people.

Problems with the record do not just lay in the transcript and the ethics of the court of Judge Brown. It goes to the file of pleadings with the 19th Judicial Circuit. On September 20, 2001(page 4 of the legal file) the court clerk did take to file a response to a plaintiff pleading submitted by counsel for defendant. On the 21st of September 2001(page 5 of the legal file) the clerk of the 19th Judicial Circuit finally filed the pleading of the plaintiff. This problem with the record goes to foundation of the judiciary. Plaintiff Appellant did take to address this problem in Plaintiff/appellant's Motion to Transfer, as the Trial Court Lacks Jurisdiction (page 127 of the Legal File) filed on 10-01-2001. This motion address the duty of the trial judge to protect the veracity of the record, which in this case was not done.

Continuing refusal on the part of the employees of the state of Missouri to abide by the sunshine law, chapter 610 of the RSMo, go to the level of the clerks of the appellant court telling anyone who requests to know who the custodian of record for their office is as a legal question they are not permitted to answer.

The Auditor for the State of Missouri took to do an audit Title COMPLIANCE WITH SUNSHINE LAW REQUIREMENTS STATE AGENCIES, BOARDS AND COMMISSIONS, in 2001, Report No. 2001-33 April 17, 2001. "We concluded that nearly forty-four precent of the governmental entities included in our sample did not properly comply with the Sunshine Law regarding request for records; only thirty-five percent of state agencies, boards, and commissions surveyed have reasonable written policies for complying with the Sunshine Law; and fifty-four percent of governmental entities surveyed disclosed fees charged for duplication of public records in excess of the market rate. By not responding to requests or denying requests unjustifiably, state agencies, boards, and commissions risk fines, lawsuits, and loss of credibility with their constituency." Signed Claire McCaskill. The Defendant/respondent Department of Revenue and Director of Revenue was fully aware of the audit prior to the Plaintiff/Appellant filing of the action in the 19th Judicial Circuit, as the defendant/respondent was a participant in the Auditor aforementioned audit. The Actions of the defendant Department of Revenue, the Attorney General's Office, and the Judiciary for the state of Missouri show an unconstitutional disregard for the authority of the citizens of the state and the legislature.

Conclusion

The clear intent of the Judge Brown's judgment on the 19th day of June 2002 was that it finally did dispose of the sunshine action. There was no way for the plaintiff to raise the issue in the court of jurisdiction. The monetary charges against the plaintiff to receive a declaration of the nature of the public documents in question is not called for. The continuing disregard on the part of the public employees of the state of Missouri to the clear meaning of the sunshine law is in violation of the charters by which they were created. The Abuse of Process that has resulted because one citizen asked for an application for a drivers license pursuant to 302 RSMo is a violation of the plaintiff due process rights provide in the United States and Missouri Constitutions and is subject to the civil rights act of 1962 in title 42 section 1983. I ask this court to review its opinion in light of the continuing unethical behavior. I ask the court to note the clear meaning of "believe me" on page 60 of the transcript and recognize the fears of the courts in State ex rel. Mo. Local Gov't Retirement Sys. v. Bill, 935 S.W.2d 659, CITY OF SPRINGFIELD v. EVENTS PUBLISHING CO. 951 S.W.2d 366, and Hemeyer v.KRCG-TV, No. SC81610. As the Decision of the Trial Court does act as a bar to bringing the action again, as the state does and is continuing to disregard the clear meaning of the provision of Chapter 610 RSMo, as equal protection under the law is being denied the plaintiff/appellant, as the veracity of the court record is called into question. The appellant asks that the Court of Appeals for the Western District remand this Petition For Declaratory Judgment to a court of competent jurisdiction, or in the alternative transfer to the Supreme Court of the State of Missouri.

Respectfully Submitted 7050 County Road 2810 West Plains Missouri, 65775 lee@plf.net

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