CIRCUIT ATTORNEY KIMBERLY M. GARDNER CITY OF ST. LOUIS 1114 Market Street. Room 401 Louis, Missouri 6310! (314) 622-4941 FAX: (314) 622-4949 org June 5,2018 Edward L. Dowd, Esq. Dowd Bennett LLP 7733 Blvd., No. 1900 St. Louis, MO 63105 VIA FAX: 314-863-2111 Re: State v. Greitens, Cause no. 1822-CR01377 Dear Ed: I am writing to let you know we received an opinion from the Of?ce of the Attorney General following our request on the issue as to whether we are legally obligated under the Sunshine Law to turn over an unredacted copy of the stipulation agreement in the above matter. The Attorney General unequivocally gave the opinion that the record is subject to disclosure under the Sunshine Law. A copy of that opinion is enclosed. Given that opinion, it is our intent to furnish unredacted copies of the stipulation agreement to those who have made that request. As a courtesy to you, given your prior objections to that release, we will not do so until 5:00 P.M. tomorrow, June 6, 2018. Sincerely, (- 5 M. If? -- Kimberly M. iardner Circuit Attorney Enclosure ATTORNEY GENERAL OF MISSOURI JOSHUA D. HAWLEY JEFFERSON CITY P.0. Box 899 ATTORNEY GENERAL 65102 (573) 751-3321 June 5, 2018 Hon. Kimberly M. Gardner St. Louis Circuit Attorney 1114 Market Street, Room 401 St. Louis, Missouri 63101 Dear Circuit Attorney Gardner: I write in response to your June 4, 2018 request for guidance from the Attorney General?s Of?ce regarding a series of Sunshine Law requests that your of?ce has received. In particular, you have inquired whether the Sunshine Law requires the production of the unredacted ?Stipulation for Dismissal? (?Stipulation?) between your Of?ce and Eric Greitens. Based on the factual representations set forth in your inquiry and for the reasons below, we believe that the Stipulation constitutes an open record under the Sunshine Law. We understand that your Of?ce and Mr. Greitens entered into the Stipulation on May 30, 2018. Pursuant to the Stipulation, your of?ce agreed to dismiss the computer-data-tampering charge brought against Mr. Greitens in Case No. pursuant to 56.087, Mr. Greitens agreed to withdraw certain pending motions in that case; and Mr. Greitens released certain potential civil claims against you, your of?ce, and individuals acting on behalf of your of?ce. Two provisions of the Stipulation have been redacted in the publicly available versions of the document. You have represented to us that no court has ordered any portion of that document to be sealed. On June 1, 2018, Mr. Greitens resigned as Governor of Missouri, and the computer-data?tampering charge against him was dismissed with prejudice.l We have concluded that the Stipulation constitutes an open record pursuant to 610.021. Section 610.021 provides, in relevant part, that any settlement agreement relating to legal action, causes of action or litigation involving a public governmental body or any agent or entity representing its interests or acting on its behalf or I Please note that our analysis depends on the accuracy and comprehensiveness of the facts set forth in your inquiry. Our analysis conceivably could change if we were presented with different or additional facts. with its authority . . . shall be made public upon ?nal disposition of the matter voted upon or upon the signing by the parties of the settlement agreement, unless, prior to ?nal disposition, the settlement agreement is ordered closed by a court after a written ?nding that the adverse impact to a plaintiff or plaintiffs to the action clearly outweighs the public policy considerations of section 610.011, however, the amount of any moneys paid by, or on behalf of, the public governmental body shall be disclosed[.] The policy behind this rule is clear. Under Missouri law, a settlement agreement is a type of contract. See, Estate of Hutchison v. Massood, 494 595, 601 (Mo. App. W.D. 2016). ?Contracts entered into by governmental entities are precisely the type of records the Sunshine Law seeks to provide to the public.? North Kansas City Hosp. Bd. of Trustees v. St. Luke ?s Northland Hosp, 984 113, 122 (Mo. App. W.D. 1998). ?The clear purpose of the Sunshine Law is to open of?cial conduct to the scrutiny of the electorate. To prevent the disclosure of contracts that public governmental bodies enter into with private entities or individuals would signi?cantly inhibit this purpose.? Id. (quotation omitted). The Stipulation constitutes a ?settlement agreement? within the meaning of? settlement agreement is a compromise by each party to the agreement of certain rights in order to gain what it did not have an established right to claim.? State ex rel. Mo. Cable Telecommunications Ass ?11 v. Pub. Serv. Comm 929 768, 773 (Mo. App. W.D. 1996). settlement agreement ?is an agreement to terminate, by means of mutual concessions, a claim which is disputed in good faith or unliquidated. It is an amicable method of settling or resolving bona ?de differences or uncertainties and is designed to prevent or put an end to litigation.? Exotics Hawaii~Kona, Inc. v. E.I. Du Pont De Nemours Co, 172 P.3d 1021, 1032 (Hawai?i 2007) (quoting 15A Am. Jur. 2d Compromise and Settlement 1 (1976)); see also Whitehorse v. Johnson, 156 P.3d 41, 46 (Okla. 2007). Pursuant to the Stipulation, both your of?ce and Mr. Greitens agreed to take certain actions in exchange for the resolution of disputed legal claims.2 The parties? respective agreements in the Stipulation allowed each ?to gain what it did not have an established legal right to claim.? State ex rel. Mo. Cable Telecommunications Ass 929 at 773. Moreover, the Stipulation plainly involves the settlement of ?legal actions, causes of action or litigation involving a public governmental body or any agent or entity representing its interests or acting on its behalf.? 610.021( 1), Mr. Greitens released civil claims against you, your 2 The fact that the parties have styled their agreement as a ?stipulation? and have used the verb ?stipulate? does not affect this conclusion. The de?nition of the noun ?stipulation? includes ?agreement.? Webster?s Third New International Dictionary 2245 (1961). And the de?nition of the verb ?stipulate? includes ?to make an agreement or covenant with a person or company to do or forbear something.? Id. Thus, the use of the words ?stipulate? and ?stipulation? are fully consistent with the conclusion that the Stipulation constitutes a settlement agreement. And in any event, the substance of the Stipulation makes it a settlement agreement, and no label can change this conclusion or allow a public governmental body to evade the requirements of the Sunshine Law. of?ce, and your of?ce?s agents. And you agreed to dismiss pending litigation against Mr. Greitens, while Mr. Greitens agreed to withdraw certain motions relating to then-pending litigation. Thus, pursuant to 610.0210), the Stipulation constitutes an open record under the Sunshine Law unless a court has ordered the Stipulation to be closed upon ?a written ?nding that the adverse impact to a plaintiff or plaintiffs to the action clearly outweighs the public policy considerations of section 610.011.? 6] We understand that no such order has been entered. And given the circumstances surrounding this matter, it is unlikely that any interests would clearly outweigh the public?s strong interest in knowing the terms of the settlement agreement here. Section 610.105 does not alter this analysis. That section generally governs the disposition of records relating to criminal investigations and prosecutions where a criminal charge has been dismissed. In particular, the statute provides that the person arrested is charged but the case is subsequently . . . dismissed. . ., of?cial records pertaining to the case shall thereafter be closed records when such case is ?nally terminated . . . except that the court?s judgment or order or the ?nal action taken by the prosecutor in such matters may be accessed.? 610.105.l, Here, 610.105 does not warrant closing the Stipulation for at least two principal reasons. First, as described above, 610.0210) expressly mandates that the Stipulation be made available to the public, because it constitutes a settlement agreement. Even assuming that 610.105 dictated that the Stipulation be closed, 610.0210) would prevail in the event of any perceived con?ict between the two provisions. ?It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Sections 610.010 to 610.200 shall be liberally construed and their exceptions strictly construed to promote this public policy.? ?610.011.1, This interpretive principle mandates that, in the event of a con?ict, 610.0210) should be construed liberally and 610.105 should be construed strictly. See id. Thus, 610.0210) would prevail if it were to con?ict with 610.105. Several additional interpretive principles buttress this conclusion. For example, ?[w]hen the same subject matter is addressed in general terms in one statute and in speci?c terms in another, the more speci?c controls over the more general.? Greenbriar Hills Country Club v. Director of Revenue, 935 36, 38 (Mo. banc 1996). Section 610.105 addresses all public records relating to a criminal case that ultimately is dismissed. See ?610.105.1, Attorney General Op. No. 31 1 (Nov. 30, 1973), at 3. In contrast to this highly general provision, the pertinent part of 610.0210) applies to a very speci?c class of documents, that is, settlement agreements. Because ?610.021(1) applies more speci?cally to the Stipulation than does 610.105, the former governs over the latter. Moreover, the relevant portion of 610.021 was enacted substantially later in time than was the relevant portion of 610.105. chronologically later statute, which functions in a particular way will prevail over an earlier statute of a more general nature, and the later statute will be regarded as an exception to or quali?cation of the earlier general statute.? Yates v. Progressive Preferred Ins. Co, 331 324, 329 (Mo. App. W.D. 2011) (quotations omitted); see also S. Metro. Fire Protection Dist. v. City of Lee ?5 Summit, 278 659, 666 (Mo. banc 2009). The portion of 610.021(1) relating to settlement agreements was enacted in 1998. See L.1998, HR. 1095. In contrast, the relevant provision of 610.105 was enacted in 1973. See L.1973, SB. 1. Thus, to the extent that 610.021 and 610.105 might con?ict, the former would prevail. Thus, the Stipulation constitutes an open record under the Sunshine Law. Second, 610.105 does not mandate closure of the Stipulation, because the Stipulation constitutes ?the ?nal action taken by the prosecutor? in Case No. 1822-CR01377. While ?610.105 mandates the closure of most records relating to a dismissed criminal case, that requirement does not apply to ?the ?nal action taken by the prosecutor.? ?610.105.1, This exception protects the public?s strong interest in knowing the basis for a prosecutor?s decision to abandon criminal charges after a prior determination that probable cause exists to believe that the defendant had committed a crime. Here, the Stipulation re?ects the Circuit Attorney?s ?nal action to resolve the computer-data?tampering case against Mr. Greitens. Thus, while 610.105 mandates the closure of most records relating to Case No. 1822-CR01377, the statute does not apply to the Stipulation. 1d. This interpretation of 610.105 would also avoid the conclusion that that section con?icts with 610.021. ?Whenever possible, [courts] will not interpret one section in a way that brings it into contradiction or con?ict with another section.? C.D..I v. Dep 't of Social Servs., 507 605, 612 (Mo. App. ED. 2016) (quotation omitted). Thus, 610.105 does not mandate the closure of the Stipulation. For the foregoing reasons, we conclude that the unredacted Stipulation constitutes an Sincere] open record under the Sunshine Law. @hn uer First A sistant and State Solicitor CIRCUIT ATTORNEY KIMBERLY M. GARDNER CITY OF ST. LOUIS CIRCUIT I114 Market Street. Room 401 81. Louis. Missouri 63101 (314) 522-4941 FAX: (314) 622-4949 circuirartom ay.org June 5, 2018 Edward L. Dowd, Esq. Dowd Bennett LLP 7733 Blvd, No. 1900 St. Louis, MO 63105 VIA FAX: 314-863-2111 Re: State v. Greitens, Cause no. 1822-CR01377 Dear Ed: 1 am writing regarding the stipulation for dismissal in the above matter. Your client blatantly violated a material obligation in that agreement with a public statement he made in conjunction with his resignation from the of?ce of Governor of the State of Missouri when he stated: I have not broken any laws or committed any offense worthy of this treatment.? Given your client?s blatant and material violation of the agreement, this of?ce is no longer under any obligation under that agreement to maintain con?dentiality of any provision of that agreement that your client previously sought. Sincerely, crly M. Circuit Attorney From: John Garvey Sent: Friday, June 01, 2018 2:43 PM To: Gardner, Kimberly Dierker, Robert Jim Martin Adam Simon Subject: release Kim, I am going to Judge Burlison?s courtroom div 10 right now to stop the release of the undredacted material. We are asking the court to hold you in contempt of court for the unredaction without court order. You may recall that it was Judge Burlison who requested these paragraphs be redacted, and it was him who wanted this information to be sealed in the file. Do not release the information until we appear in front of the Judge today. Please have someone there today to meet with us. Jack Garvey Jack Garvey Carey Danis Lowe 8235 Suite 1100 St Louis, MO 63105 314-725-7700 800-721-2519 314-721-0905 facsimile mu This e-mail message from the St. Louis Circuit Attorney's Office is intended only for named recipients. It contains information that may be confidential, privileged, attorney work product, or otherwise exempt from disclosure under applicable law. Attorneys are required to notify all recipients of e-mail that (1) e- mail communication is not a secure method of communication, (2) any e-mail message that is sent may be copied and held by various computers it passed through, (3) persons not participating in our e?mail communications may intercept our e-mail communications by improperly accessing your computer or my computer or even some computer unconnected to either of us which the e?mail is passed through. If you would like future communications to be sent in a different fashion or if you receive this message in error, please let me know AT ONCE by calling 314?622-4941. If you have received this e-mail message in error, please delete the e-mail message immediately. Thank you. CIRCUIT KIMBERLY M. GARDNER CITY OF ST. LOUIS CIRCUIT OFFICE 1114 Market SIreeI. Room 401 SI. Louis, Missouri 63101 (314) 622-4941 FAX: (SM) 622-4949 org Edward L. Dowd, Esq. Dowd Bennett LLP 7733 Blvd., No. 1900 St. Louis, MO 63105 VIA FAX 314-863?2111 Re: State v. Greitens, No. Sunshine Law Issue Dear Ed: This office has been inundated with Sunshine Law requests for disclosure of the unredacted stipulation executed by us in regard to the above case. As you know, Judge Burlison permitted the filing only of the blacked?out version of the stipulation, so the unredacted version is not part of the official record of the Court. Consequently, we believe that the Sunshine Law requires us to treat the unredacted stipulation as an Open record and subject to disclosure, notwithstanding the agreement to seal paragraph 1. By this letter, we are providing notice that we consider that the law requires us to release the unredacted version of the stipulation in conformity to Sunshine Law requests, unless a court orders otherwise. Pending Sunshine Law requests will necessitate a response by June 1 by close of business. Please advise if you intend to seek relief to prevent disclosure of the unredacted stipulation, as we do not consider it proper to expend time and effort in defending media Sunshine Law actions on this issue. Sincerely, 6 2" - ?ij {fl/L jL/ imberly M. ?ardner Circuit Attorney