In August the Missouri Supreme Court threw out the law removing campaign contribution limits (previously covered at Show Me ProgressMissouri Supreme Court: give the money back, mostly), dumping the question of candidate “hardship” squarely in the lap of the Missouri Ethics Commission:

…Finally, and of key importance, is the fact that it is not this Court, but the Missouri Ethics Commission, that must initiate any enforcement action to require disgorgement of campaign contributions as to those not before this Court….If a candidate believes that retroactive application of the decision would be a hardship in his or her particular circumstances because he or she acted in good faith and in reasonable reliance and retroactive application would work an injustice, that candidate must develop with specificity what those circumstances are to the Missouri Ethics Commission. In considering these factors in particular cases or classes of cases, however, the Commission must ensure that it not become a vehicle for creating an uneven playing field for a particular office; to do so would itself create an undue hardship for and injustice to the other candidates for that office….

The question now is: Are those “hardship” hearings open? The Missouri Ethics Commission says “no”. Attorney General candidate Margaret Donnelly says “they should be”, filing a suit to force the issue.

12/12/2007

Docket Entry:   Pet Filed in Circuit Ct

Text: Verified Petition for Enforcement of the Missouri Sunshine Law, Declaratory Judgment and Injunctive Relief, filed. mac

Filing Party: DONNELLY , MARGARET T.

Docket Entry: Mot for Temp Restraining Order

Filing Party: DONNELLY , MARGARET T.

Docket Entry: Notice of Court Hearing Sent

Text: Hearing on Motion for Temporary Restraining Order is set for 12/17/2007 at 10 am, filed. mac

Filing Party: DONNELLY , MARGARET T.

Missouri attorney general candidate sues state ethics panel

By TIM HOOVER

The Star’s Jefferson City correspondent

…But the legal action is necessary because “we really have to have a presumption of openness that everyone’s going to get the same information from the commission,” Donnelly said.

“We should not be relying on candidates to voluntarily tell us” whether they are returning money…

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Most, if not all, of the statewide candidates have said they’ll return the overages. And identifying candidates who are granted “hardship” exceptions by the commission will be ascertainable from subsequent campaign finance filings.

As for that motion for a temporary restraining order:

Lawmaker urges judge to bar closed hearings on campaign donations

By TIM HOOVER

The Star’s Jefferson City correspondent

…She asked Cole County Circuit Judge John Beetem to issue a temporary restraining order against the commission to prevent it from closing hearings, but the judge made no ruling Monday…

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Still, it would be fun to see which lame excuses put forward by a candidate or candidates are accepted or rejected by the commission. Margaret Donnelly just might have a good point there.

[Updated]

Dec 18, 2007 6:28 PM

By DAVID A. LIEB, AP

JEFFERSON CITY, Mo. – A judge turned down a request Tuesday to temporarily block the Missouri Ethics Commission from holding secret hearings on whether certain candidates must refund money to big donors.

But Democratic attorney general candidate Margaret Donnelly vowed to press on with her lawsuit alleging the Ethics Commission would be violating the state Sunshine Law by holding the closed hearings….

From the docket entries:

12/18/2007   Docket Entry:   Order

Text: In short, hardship is a defense which may be raised in an enforcement action and is not an independent determination. Enforcement actions are, by statute, to be conducted in closed session. Specific statutory provisions for closed action is an exception to the general rule of open meetings and records. The Court finds that the Petitioner has failed to demonstrate a likelihood of success on the merits that the Sunshine Law prevents Ethics, in an individual enforcement case, from considering what is or is not a “hardship” in closed session. Accordingly, a temporary restraining order will not issue. The Court notes that determinations of policy, rule or statements of general applicability which are not decisions on the merits of individual cases by Ethics in the context of enforcement may be subject to the Sunshine Law. The record at this point does not permit such a determination. Ethics is directed to file its answer or other responsive pleadings within thirty (30) days of service. Cause set for status review on February 1, 2008 at 9:00 a.m., unless the matter is sooner brought before the Court. SO ORDERED this 18th day of December, 2007. //lc/JEB (Full text of formal written order to govern. See case file for formal order)

Filing Party: BEETEM , JON EDWARD

Associated Docket Entries: 12/17/2007 – Cause Taken Under Advisement