Lee Allen Martin Plaintiff, VS. DEPARTMENT OF REVENUE, et al., Defendants.

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CASE #01CV324209

Motion for Sanctions

Comes now the Plaintiff, Lee Allen Martin, pursuant to Missouri Supreme Court Rule 55.03.

The False Representation
Defendant did take to make false representations in the Defendant's Motion to Dismiss and Suggestions in Support of filed on the 22^nd day of April 2002. The defendant did make false allegations as to the clear wording of the attachment #1, Official Sunshine Complaint. Defendant's false representation is:

1. Five of Martin's sunshine law requests stated that he wanted the information in electronic format. However, Missouri Law doe not require a governmental body to provide records in electronic format. Sec 610.029.1 RSMo. 2000.² While the Sunshine Law states that governmental agencies are encouraged to provide information to the public in electronic format, it does not require it. Sec. 610.029.1.

2. Martin's requests can be placed in two categories: (1) Records he wanted supplied in electronic format; and (2) Records that the Department is prohibited by law from disclosing. Even if Martin's allegation are deemed true for purposes of this motion, he has not stated any basis for relief. The Department is not required to provide Martin with any records in electronic format, and is prohibited by law from providing him the other information he requested. 610.029.1 and 32.090.

As to the Official Sunshine Request
The Attachment #1 specifically requests that plaintiff be allowed to view not only the applications on file with the defendant department, but also the policy and procedures of the defendant department, Request #2, #3, and #6.

1. 2) The policies and procedures promulgated by your office to better instruct Department of Revenue employees in the functioning in their office in electronic format. And, to provide a time for me to view these documents.

2. 3) The polices and procedures concerning the interaction between Department of Safety personnel and the personnel of the Department of Revenue in the performance of licensing drivers in the state of Missouri in electronic format. Please provide me with a time and a place to view said documents.

3. 6) Please provide me with the policies and procedures of the legal department for the Department of Revenue in electronic format, and allow for my viewing said documents.

As to 610.029.1
The defendants allegation and reliance upon 610.029.1 as a defense from producing electronic records are baseless and false. 610.029.1 deals with the encouragement toward public governmental bodies to provide "electronic services." The Mandate of chapter 610 RSMo is that public records are public and should be made available at the earliest possible time.

1. 610.010(6) "Public record", any record, whether written or electronically stored, retained by or of any public governmental body including any report, survey, memorandum, or other document or study prepared and presented to the public governmental body by a consultant or other professional service paid for in whole or in part by public funds; provided, however, that personally identifiable student records maintained by public educational institutions shall be open for inspection by the parents, guardian or other custodian of students under the age of eighteen years and by the parents, guardian or other custodian and the student if the student is over the age of eighteen years. The term "public record" shall not include any internal memorandum or letter received or prepared by or on behalf of a member of a public governmental body consisting of advice, opinions and recommendations in connection with the deliberative decision-making process of said body, unless such records are retained by the public governmental body or presented at a public meeting;

2. 610.029. 1. A public governmental body keeping its records in an electronic format is strongly encouraged to provide access to its public records to members of the public in an electronic format. A public governmental body is strongly encouraged to make information available in usable electronic formats to the greatest extent feasible. The activities authorized pursuant to this section may not take priority over the primary responsibilities of a public governmental body. For purposes of this section the term "electronic services" means on-line access or access via other electronic means to an electronic file or data base.

Authorities
The misrepresentations of the defendant counsel of the content of the Defendant's Attachment #1 is unconsionable. The misstatements as to request for viewing policy and procedures of the defendant department could only be made in an attempt to misinform the honorable court, and the reliance upon 610.029.1 RSMo as a means to with hold public documents is in violation of the following:

1. JEFFERY L. THURMAN v. STATE of MISSOURI, 859 S.W.2d 250

   Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.

2. MARCIA M. TRUE v. DIRECTOR REVENUE 773 S.W.2d 241

   Rule 55.03 includes the requirement that the attorney who signs a pleading, motion or other paper thereby certifies that he has read the document and to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law.

3. Missouri Supreme Court Rule 4-3.3(a)(2):

   "A lawyer shall not knowingly: ... fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;... (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures."

4. Mo.S.Ct. Rule 4-3.3 provides that

   "... an assertion purporting to be on the lawyer's knowledge,...may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry."

5. Pursuant to Mo.S.Ct. Rule 55.03(b) the filing of Defendant Motion to Dismiss and Supporting Suggestions the party and attorney certified that to the best of the persons, knowledge, information, and belief, formed after an inquiry reasonable under the circumstances is not maintained for improper purpose and are reasonable."

6. Rea v. Moore, No. 23795 (Mo.App. S.D. 01/25/2002)

   Although Missouri cases do not seem to address the issue of the appropriateness of using the court's inherent power to impose sanctions versus the use of Rule 55.03, Missouri case law does provide support for the use of a court's inherent powers to address particular issues before it. See Higgins v. Director of Revenue, 778 S.W.2d 24, 26 (Mo.App. S.D. 1989). Missouri courts are cautioned to exercise their inherent powers "sparingly, wisely, temperately, and with judicial self-restraint." Id. Any sanctions imposed under the court's inherent powers should be limited to those situations in which it is "reasonably necessary to preserve the courts' existence and protect it in the orderly administration of its business." Id.

   Federal courts have addressed the interplay between Federal Rule of Civil Procedure 11 (2001) and a court's inherent power. See Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S.Ct. 2123, 2136, 115 L.Ed.2d 27, 49 (1991); Pope v. Federal Express Corp., 138 F.R.D. 675, 681-83 (W.D. Mo. 1990). Since Federal Rule 11 and Missouri Rule 55.03 are nearly verbatim, the analyses and conclusions of these cases are instructive to the analysis here.

   In Chambers, the United States Supreme Court found that the district court did not abuse its discretion when it resorted to its inherent powers to impose sanctions for bad faith conduct. 501 U.S. at 50, 111 S.Ct. at 2136, 115 L.Ed.2d at 49. The Court determined bad faith conduct was not covered by the Federal Rule 11 sanctioning provisions. Id.; see also Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1058-59 (7th Cir. 1998) (Court determined no bad faith conduct and thus was necessary to impose any sanctions according to Federal Rule 11 rather than inherent powers). The Court in Chambers went further and noted that a federal court was not forbidden from using its inherent powers rather than a statute or rule, even if some of the conduct was covered by a statute or rule. Id. 501 U.S. at 50, 111 S.Ct. at 2136, 115 L.Ed.2d at 49. For example, the Court noted Federal Rule 11 could have been used to sanction the party for "filing 'false and frivolous pleadings.'" Id. However, the Court determined that the "entire course of conduct throughout the lawsuit evidenced bad faith and an attempt to perpetrate a fraud on the court, and the conduct sanction able under the Rules was intertwined within conduct that only the inherent power could address." Id. 501 U.S. at 51, 111 S.Ct. at 2136, 115 L.Ed.2d at 49.

   In Pope, the court found that the actions of a party to the litigation "constitute[d] bad faith and abusive conduct . . . and an attempt to perpetrate a fraud on the court." 138 F.R.D. at 683. Therefore, the court concluded it was appropriate for it to "impose sanctions against plaintiff pursuant to its inherent equitable power to do so." Id. The court arrived at this conclusion after analyzing the various Federal Rules, including Federal Rule 11, under which sanctions could be imposed. Id. at 681-82.

   In Aoude v. Mobile Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989), the court defined fraud on the court as occurring when "it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Further, the court noted "that a federal district court possesses the inherent power to deny the court's processes to one who defiles the judicial system by committing a fraud on the court." Id. Among the bad faith conduct apparent in the case was the filing of false pleadings and documents. Id.

   In the instant case, the trial court concluded the "[f]acts supporting sanctions for filing false pleadings, false affidavits and perjured testimony must meet the clear and convincing standard of proof." We find that was the appropriate standard of proof and that the evidentiary documentation and testimony before the court met that standard and provided substantial evidence to support the judgment in issue. Additionally, we note that the actions found by the trial court to have been committed by Appellant were not fully covered by Rule 55.03, and thus justified the imposition of sanctions under the court's inherent powers. See Foster, 661 S.W.2d at 631. Based on the fraud, false pleadings, false affidavits and perjured testimony found by the trial court, the use of its inherent power was appropriate as the "judicial function [was] integrally threatened." Higgins, 778 S.W.2d at 26. Appellant's first point is denied.

A Continuing Pattern of Bad Faith

1. The defendant could not comply with the official sunshine request of March 24, 2001 within the specified time set down by the Missouri State Legislature in RSMo 610.023(4) which states that the denial should be provide in writing within 3 business days. It is a matter of record in the case at hand that the request was sent on the 27th day of March 2001 and the denial in written form was not provide until the 5th day of April 2001.

2. In Answer to the Petition for Declaratory Judgment Arising out of Chapter 610 of RSMo. As to residence of the Plaintiff: 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.

   On page 720 of the Official Manual of the State of Missouri 1999-2000 Plaintiff is listed.

3. 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 5th 2001 paragraph 2 states the record is maintained in a program. Further, an application for a Missouri State Driver's License is maintained at http://www.dor.state.mo.us/mvdl/drivers/forms/mailinlic.pdf .

4. The Answer to Plaintiff's request for production of documents were sent via Federal Express at 17:27 on the 4th day of September 2001. The clear reading of Missouri Supreme Court Rule 58.01(b)states "The party upon whom the request is served shall serve a written response within thirty days after service of the request," Service was mailed on the 30th day of July, 2001. Notice was given in open court that the request would be coming in the 27th day of July 2001. The honorable court on the 2nd day of August 2001 did claim to have filed the certificate of service. Answer was to be served within thirty days, 1st day of September 2001.

Prayer for Relief
Wherefore, the Professional Rules of Conduct is clear. The safe harbor provision of Rule 55.03(c) have been met with the allowing of 30 days for counsel for the defendant to withdraw the Motion to Dismiss and Supporting Suggestion; or, to amend the pleading to speak the truth. The Defense Counsel's false representation of the clear statement of the Attachment #1, The Official Sunshine Request, before the court is a violation of the Attorney's Oath and Missouri Supreme Court Rule. Due diligence upon the Defendant to know what Defendant Attachment actually says is required, and false representations of the clear wording of the Attachment #1, The Official Sunshine Request, allows for Sanctions. The Defendant is required through due diligence to know what the law says and the reliance upon 610.029.1 as an excuse to with hold public records is a violation of Mo.S.Ct. Rule 55.03. The attempt on the part of defense counsel to influence the trier of fact with a false representation is fraud upon the court.

The Plaintiff asks that Sanctions be imposed upon the filing attorney #43941. Further, in way of sanctions the Plaintiff request that all requests for discovery be honored at the earliest possible date. That the Honorable Court have the offending attorney pay to the plaintiff $1,500.00 pursuant to Mo.S.Ct. Rule 55.03(b)(2)(B).