Courtroom Weekly: Public records and illegal graves

October 24, 2013

by: the State Court Staff

Courts rule on collective bargaining, police videos and executive privilege

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from Oklahoma News from Washington News from Wisconsin

Featured case Alabama widower's fight to keep wife buried in front yard comes to an end   Court: Alabama Supreme Court By Jong Son When trick-or-treaters head to the home of James Davis this Halloween, the tombstone they see in the front yard won’t be a fake prop set up to spook candy-seekers; it may mark the very real final resting place of Davis’ late wife, who is buried near the front porch. Davis, who claims he was following his wife’s dying wishes, originally applied for a permit from the city of Stevenson, Alabama to inter Patsy Davis on his property in April of 2009, shortly after her passing. Though the county board of health determined that the grave would not pose a health hazard, Stevenson’s City Council refused to grant the permit, citing the grave’s effect on property values, long-term care considerations, and complaints by neighbors. As city attorney Parker Edmiston explained, “We’re not talking about a homestead. We’re not talking about someone who is out in the country on 40 acres of land. Mr. Davis lives in downtown Stevenson.” Ignoring the council’s decision, James Davis got a backhoe, dug the grave, had a concrete tomb installed, and buried his wife in a metal casket inside the tomb. The city ordered him to move his wife’s body, asserting that the grave constituted an illegal cemetery. City officials went so far as to offer both he and his wife free burial plots in a licensed cemetery elsewhere. Davis refused, claiming that the grave is a family burial plot and legal under state law. Davis points to the fact that the city has no ordinance concerning private burials on residential property. However, a circuit court agreed with the city, refusing to block the order to move the burial site. Davis appealed the decision, but on October 11, the Alabama Supreme Court affirmed the lower court's decision refusing to allow the front-yard burial, and effectively ending Davis' four-year legal battle. Though private burials are not uncommon in rural areas, “it’s usually the case that people do not ask to be buried within city limits,” says Joshua Slocum, director of the Vermont nonprofit Funeral Consumers Alliance. Stevenson officials have said they are worried about the precedent that could be set by allowing homeowners to bury loved ones in residential areas near the city’s main roads. After the final ruling, Davis suggested a compromise. He would have his wife's body cremated and her ashes put into an urn, which would then be placed back into the grave. Though the burial of a coffin and vault is impermissible within city limits, there seems to be no law against tombstones or ashes. After facing the city's protests and legal difficulties, Davis has managed to comply as best he could with his wife's wishes and still hopes to be buried next to her when he dies.

News from Oklahoma Cops on film: Police dashcam videos can't be kept confidential   Court: Oklahoma Court of Civil Appeals By Susan Lawrence The Oklahoma Supreme Court rejected a request from the City of Claremore to review a Court of Civil Appeals' opinion which found a Claremore Police Department dashcam video was a public record that must be released in accordance with Oklahoma's Open Records Act. Attorneys representing Richard Stangland, a resident of Claremore, sued the city after police department officials refused to turn over a dashcam video filmed during his arrest. The video was taken in March 2011, and Stangland was later charged with aggravated driving under the influence of alcohol. In August 2011, he entered a plea of guilty to a DUI charge and received a sentence of 18 months, which was deferred. During a trial to obtain the dashcam video in the district court for Rogers County, an attorney for Stangland, Stephen Fabian, argued that under Oklahoma's Open Records Act, videos and sound recordings are considered public records and must be released if they are requested. However, an attorney for the city, Matt Ballard, said dashcam videos are evidence and can be kept confidential. Stan Brown, Claremore's police chief, testified that according to an internal policy he established, the department did not provide dashcam videos in response to public records requests. Associate district judge Sheila A. Condren found in favor of the City of Claremore and Chief Brown. In her decision, Condren agreed that since the dashcam video was a "direct piece of evidence" it could not be considered a public record, as defined by the Oklahoma Open Records Act, and the police department was not required to release it. She also found that since Stangland's attorneys provided the wrong date of arrest on the initial request for the dashcam video, the city did not technically violate the Open Records Act. Stangland's attorneys appealed the trial court's decision to the Court of Civil Appeals. The appellate court reversed the decision and noted Condren's finding that the city technically complied with the Open Records Act was not supported by the evidence presented in the case. Chief Judge Robert D. Bell wrote in the opinion: “ [The City of Claremore] failed to show Stangland's arrest video falls within any exception to disclosure under the Act. [The city's] argument- and the trial court's holding-that the video is exempt because it could be used as evidence in a subsequent criminal prosecution is without legal support. There is no such exemption enumerated in the Act. ”

News from Washington Governor's right to secrecy upheld by court   Court: Washington Supreme Court By Matt Latourelle The Washington Supreme Court ruled on October 17 that the state's governor may claim "executive privilege" in keeping certain documents private. The 8-1 decision explained that Gov. Jay Inslee may not keep everything from the public, but is not required to disclose communications related to policy decisions. Justice Mary Fairhurst, in the majority opinion, wrote: “ The executive communications privilege plays a critical part in preserving the integrity of the executive branch…Courts have widely recognized that the chief executive must have access to candid advice in order to explore policy alternatives and reach appropriate decisions. ” This type of public records exemption for the governor is not explicitly noted in state law. The lone dissenter, Justice James Johnson, argued: “ The majority ignores our state’s constitution, statutes, and populist tradition and does great damage to over 120 years of open government in Washington…It is not alarmist to say that this decision could place a shroud of secrecy over much government conduct. ” The case was sparked by former Governor Christine Gregoire, who reportedly used the idea of executive privilege to keep multiple documents private, including some relating to medical marijuana and criminal pardons. Gregoire was sued by the Freedom Foundation, a libertarian think-tank located in Olympia, for withholding various documents. The Foundation's argument that the executive privilege is not allowed by state law was struck down by a lower court before reaching its final demise this month at the state's highest court. As for current Governor Jay Inslee, he has stated that he does not intend to use the executive privilege anyway. After taking office in January, he provided the documents to the Freedom Foundation that they had previously requested from Gregoire.

News from Wisconsin Small victory for Wisconsin unions   Court: Dane County Circuit Court, Wisconsin By Alma Cook The long-running battle between union leaders and the state of Wisconsin has yielded a small victory for opponents of Governor Scott Walker's collective bargaining restrictions. On October 21, Dane County Circuit Court Judge Juan Colás ordered labor relations officials to stop enforcing parts of Walker's restrictions. The court decision requires city employers to again meet with unions to discuss wages, working conditions and hours. Though employers are still under no obligation to bend to a union's will (as it is illegal for unions to force arbitration or strike), collective bargaining leaders are pleased by the ruling. Commented Rick Badger, executive director of the American Federation of State, County and Municipal Employees Council 40, “ The big thing is we can at least talk to the employers again. Right now, we had employers who said we’d like to sit down with you but we can’t. This at least allows that dialogue. If that happens, good things happen. ” According to Christina Brey, spokeswoman for the Wisconsin Education Association Council, many local union chapters are unsure of how to respond the ruling. Most teachers unions are still trying to understand it and are seeking legal advice. Without the ability to force arbitration or strike, collective bargainers are not optimistic about negotiations. There's also no telling if or how long Colás' ruling will remain in effect, as the state supreme court could reverse the decision in a few weeks. The predominately conservative high court already upheld the bargaining restrictions once since 2011, when Walker's bill incited months of massive protests on the capitol lawn. Dan Thompson, executive director of the League of Wisconsin Municipalities, remarked, “ We have an obligation to bargain in good faith, but it’s difficult to bargain when you’re not quite sure what the ruling will be … We are in a very fluid, unsettled legal environment and both sides know that. ” Oral arguments before the state supreme court were scheduled for November 11.

See also

• Courtroom Weekly