Vous êtes sur la page 1sur 45

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION SHAUN MISSEY, Plaintiff, v.

THE CITY OF ARNOLD, MISSOURI, and ROBERT SWEENEY, individually and in his official capacity as City Attorney for the City of Arnold. and DIANE WALLER, individually and in her official capacity as City Clerk of the City of Arnold, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Cause No. 4:13-CV-568 JURY TRIAL REQUESTED

COMPLAINT COMES NOW Plaintiff Shaun Missey (hereinafter Plaintiff or Missey), by and through his undersigned counsel, and for and in support of his complaint against the defendants, states as follows: PARTIES, JURISDICTION & VENUE 1. Missey is an individual with his primary place of residence in the Eastern District

of Missouri, Eastern Division. 2. Defendant City of Arnold (hereinafter City or Arnold), Missouri, is a third-

class city under Missouri law, which is located in the Eastern District of Missouri, Eastern Division.

3.

Defendant Robert Sweeney (hereinafter Sweeney) is an individual with his

primary place of residence and business located in the Eastern District of Missouri, Eastern Division. He is sued in both his individual and official capacities. He is the City Attorney for the City of Arnold, Missouri. 4. Defendant Diane Waller (hereinafter Waller) is the City Clerk for the City of

Arnold. She is sued in both her individual and official capacities. 5. 6. The Court has jurisdiction of this action pursuant to 28 U.S.C. 1331. Plaintiff invokes the supplemental jurisdiction of this Court to hear and decide

claims arising under state law pursuant to 28 U.S.C. 1367. 7. Venue is proper in this District pursuant to 28 U.S.C. 1391(b) because all

Defendants reside or are located in the district and all of the events complained of herein occurred in the district. 8. Plaintiff requests a jury trial pursuant to Federal Rule of Civil Procedure 38(b). ALLEGATIONS COMMON TO ALL COUNTS 9. On December 11, 2012, Missey filed to be a candidate for the public office of

Councilman for Ward 1 in the City using the Citys official form for such filing, which is attached hereto and incorporated by reference herein as Exhibit 1. 10. The Citys prescribed form for a resident to declare his/her candidacy for public

office is set forth at 7.5 of the Code of Ordinances of the City of Arnold (hereinafter City Code), which does not require a candidate to make any declaration regarding unpaid taxes. 11. Under Missouri law and the City Code, a resident seeking municipal office in the

April 2, 2013 general election could declare his/her candidacy at any time between December 11, 2012 and January 15, 2013. See 115.127.5 R.S.Mo. and 7.3 of the City Code.

12.

Ballots for the declared candidates were to be submitted to election authority

(county clerk) for printing on January 22, 2013 pursuant to 7.7 of the City Code for the April 2 election. 13. On January 18, 2013, Waller on behalf of the Defendants mailed Missey notice

that his name would not appear on the ballot because purportedly under 115.342 R.S.Mo., he was not eligible to be a candidate for the Arnold City Council due to an alleged personal property tax delinquency. Exhibit 2 attached hereto and incorporated by reference as if fully set forth herein. 14. Waller took the position that Missouri law requires candidates to have all taxes

paid before the last day for filing, which for the April 2, 2013 election was January 15, 2013. 15. At the time Defendants mailed the January 18, 2013 notice to Missey, they were

aware that 115.342 R.S.Mo. did not apply to candidates for municipal office by reason of 115.305 R.S.Mo., which provides: This subchapter shall not apply to candidates for special district offices, township offices in township organization counties, or city, town and village offices; provided that, cities of the fourth class, except those in a county of the first class with a charter form of government and which adjoins a city not within a county, may elect, only by ordinance, to hold primary elections in accordance with the provisions of sections 115.305 to 115.405 or in accordance with the provisions of sections 78.470, 78.480 and 78.510, and the ordinance shall state which of these provisions of law are being adopted. 16. At the time Defendants mailed the January 18, 2013 notice to Missey, they were

also aware that 115.342 R.S.Mo. did not apply to him by reason of Sweeneys Memo to Waller dated January 21, 2011, which is attached hereto and incorporated by reference as if fully set forth herein as Exhibit 3. 17. The personal property tax delinquency alleged by Defendants supposedly

stems from Misseys October 12, 2011 purchase of a 2005 Dodge Grand Caravan, which Missey
3

sought a personal property tax waiver for from the Collector of Revenue of Jefferson County (hereinafter Collector of Revenue) on November 28, 2011. Additionally, Missey registered the vehicle with the State of Missouri on the same day. Exhibits 4-a and 4-b attached hereto and incorporated by reference herein. 18. Upon information and belief, Missey seeking a personal property tax waiver in

October 2011 provided notice to the Collector of Revenue and/or Assessor that Missey owned personal property in Jefferson County, which should have resulted in Jefferson County issuing Missey an assessment form in 2012 for him to declare his personal property. 19. Additionally, 137.116. R.S.Mo. requires the Department of Revenue to transmit

on January first of each year to each county assessor a list of motor vehicles, etc. registered with the Department of Revenue having a personal property situs in the county for purposes of preparing assessment lists of all tangible personal property in the county. 20. No form for declaring personal property was received by Missey in 2012 from

Jefferson County. 21. On January 18, 2013, when Defendants sent the letter to Missey telling him that

he would be removed from the April 2, 2013 ballot because delinquent on his personal property tax, Missey was not delinquent on any personal property tax, as evidenced by the public Online Property Inquiry maintained by the Collector of Revenue and available to Defendants. 22. On February 6, 2013, Missey through counsel, advised the City, through Waller,

that Missey was not delinquent on any personal property tax, as evidenced by the Collector of Revenues Online Personal Property Inquiry and Wallers own correspondence dated January 18, 2013. Exhibit 5 attached hereto and incorporated by reference herein. 23. Even though Missey was not delinquent on any personal property tax as

evidenced by the Collector of Revenues records, Defendants failed and refused to restore Missey to the ballot despite the demand contained in his February 6, 2013 correspondence. 24. In removing Missey from the ballot, no notice was provided to him about this

alleged property tax delinquency until the notice was mailed to him on January 18, 2013, after the period for declaring as a candidate had expired on January 15, 2013, and therefore, according to Waller, after the time for correcting any alleged tax delinquency. 25. Missey was not able to address this alleged property tax delinquency on January

21, 2013 because City Hall was closed the next business day after the notice was mailed to him due to the Martin Luther King Holiday. 26. When Missey contacted Waller on January 22, 2013 about her January 18, 2013

correspondence in an attempt to address and/or resolve the issue, she advised him that there was nothing he could do to address this alleged property tax delinquency and that he was disqualified from the ballot. 27. On February 13, 2013, after Missey challenged his removal from the ballot on

February 6, 2013 because he owed no personal property tax, Sweeney issued a memorandum to Waller and Police Chief Robert Shockey accusing Missey of engaging in a scheme to defraud the taxing authorities of monies to which they were entitled. 28. Sweeneys February 13, 2013 memorandum accusing Missey of being a tax cheat

was released to the Arnold Patch, and now appears on the Arnold Patch website for the world to see, as part of the Defendants efforts to discredit and embarrass him and to politically neutralize him, even though he was already illegally removed from the ballot by Defendants. See Exhibits 6-a and 6-b attached hereto and incorporated by reference herein. 29. In addition to Defendants removing Missey from the April 2, 2013 Arnold

City Council ballot, they removed Ward 3 candidate Rodney M. Mullins (hereinafter Mullins) from the ballot for allegedly not paying municipal service fees by January 15, 2013. 30. On January 16, 2013, Mullins wife was contacted by Waller and told that he was

being provided with a courtesy call that he was disqualified from the ballot. Even though Mullins wife offered to immediately pay any outstanding municipal service fees, even though Mullins had already paid the bill by mail, Waller told Mrs. Mullins that nothing could be done. 31. The original check Mullins mailed to the City to timely pay his municipal service

fees was deposited into the Citys account six (6) days after Mullins was disqualified from the City Council election. When Mullins requested a copy of the envelope he used to pay his municipal service fees, it appeared to have been altered. 32. As a result of the removal of Missey and Mullins from the April 2, 2013 City

Council ballot by Defendants, the Ward 1 and Ward 3 Council seats are uncontested and will be filled by Phil Amato (discussed in more detail below) and Jason Fulbright. 33. Upon information and belief, Jason Fulbright and Phil Amato are political allies

of Ron Counts, (hereinafter Counts) current Mayor of the City, and of Sweeney. Counts previously attempted to appoint Fulbright to the Arnold Planning Commission without success. 34. Upon information and belief, Sweeney is a political ally of Counts and has

a financial interest in Counts and his political allies maintaining a majority on the Council so that Sweeney is not replaced as the City Attorney as he was in December 2009. 35. Missey is not a political ally of Counts or Sweeney, which upon information and

belief, is the reason he was removed from the April 2, 2013 ballot under false pretenses by the Defendants. 36. Additionally, Sweeney is legal counsel for the North Jefferson Ambulance

District. 37. At the same time Missey and Mullins were removed from the Arnold City

Council ballot, Ron Woehrle was removed as a Board candidate for the North Jefferson Ambulance District for allegedly not paying his personal property tax. 38. Upon information and belief, he was removed from the North Jefferson

Ambulance District ballot by Sweeney and others because he is not an ally of Sweeneys and his allies on that Board. 39. 40. Sweeney is also the City Attorney for the City of Byrnes Mill. Byrnes Mill Mayor Susan Gibson was in arrears on her personal property

tax on January 15, 2013, the filing deadline for the April 2, 2013 general election. Unlike the other candidates set forth above, Gibson remained on the Byrnes Mill ballot after she paid her personal property tax on January 22, 2013. 41. Upon information and belief, Gibson is a political ally of Sweeneys and

Sweeneys allies on the Byrnes Mill Board of Aldermen. 42. This same issue was raised in the City during the 2011 City Council election

because Council candidates Bill Moritz (hereinafter Moritz) and Randy Crisler (hereinafter Crisler) were delinquent in paying their personal property taxes. Crisler did not pay his 2010 personal property tax until on or about February 22, 2011. Moritz did not pay his 2010 personal property tax until on or about January 19, 2011. 43. Upon information and belief, both Moritz and Crisler are political allies of

Counts and Sweeney. Neither paid their personal property tax before the filing deadline for the April 2011 election, which was January 18, 2011. 44. As set forth above, during the 2011 City Council election, Sweeney took the

position in a legal memorandum directed to Waller that 115.342 R.S.Mo. did not apply to municipal elections, that 115.352 R.S.Mo. imposed no duty on the City Clerk to determine the tax delinquency status of municipal candidates, and that it was the Department of Revenues responsibility to enforce 115.342 R.S.Mo. Sweeney further directed Waller to share his legal opinion with the Mayor and Council. See Exhibit 3. 45. As a result of Sweeneys legal opinion to the City, neither Moritz,

nor Crisler, were removed from the April 5, 2011City Council election ballot, and they were ultimately elected to the Arnold City Council, where they have voted as allies of Counts and Sweeney. 46. The actions alleged herein were part of a custom and/or policy on the part of the

City, were made or ratified by those with final policymaking authority, represents the policy of the City, resulted from the Citys failure to adequately supervise and/or control its appointed officials and/or employees, and/or constitutes a deliberate and/or conscious choice on the part of the City to violate the Constitutional rights of others. 47. Upon information and belief, the City maintains a policy or policies of insurance

with respect to tort claims filed against it and/or its elected and/or appointed officials, and therefore, to the extent that the City or any of its officials may attempt to assert a defense of sovereign immunity with respect to any tort claim raised herein, it/they has/have waived such defense under the provisions of 537.610 R.S.Mo. by maintaining such policy or policies of insurance. COUNT I FIRST AMENDMENT RETALIATION COGNIZABLE UNDER 42 U.S.C. SECTION 1983 For Count I of Plaintiffs cause of action against all Defendants, Plaintiff states as

follows: 48. Plaintiff incorporates by reference as if fully set forth herein, all proceeding

paragraphs of this complaint. 49. As set forth above, Missey is not a political ally of Counts or Sweeney, and if

elected would likely have kept the balance of power on the Council with the faction that are not Counts and Sweeney allies. 50. Defendants purposefully and intentionally removed Missey from the ballot for a

pretexual reason to ensure that Counts/Sweeneys ally, Fullbright, ran unopposed in Ward 1, and therefore, would be elected to office. 51. Misseys political speech and/or political affiliation was a motivating factor

and/or played a part in the Defendants decision to remove Missey from the ballot. 52. Removing Missey from the ballot because of his political speech and/or affiliation

violated his rights secured by the First Amendment to the United States Constitution made applicable to the states by the Fourteenth Amendment. 53. The actions of the Defendants complained of herein were taken under color of

state law and in violation of Misseys rights secured by the First and Fourteenth Amendments to the United States Constitution, a claim actionable under 42 U.S.C. 1983. 54. As a direct and proximate result of Misseys illegal removal from the ballot by

Defendants, particularly when he was publicly accused of being a tax cheat as the reason for his removal, he has sustained and will continue to sustain damages. 55. As a direct and proximate result of the actions of the Defendants, Missey has

suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation.

56.

The conduct of Defendants Sweeney and Waller as alleged herein was reckless

and callously indifferent to the Constitutional rights of Missey, malicious and wanton with respect to those rights, and therefore, an award of punitive damages is warranted and necessary to punish Sweeney and Waller and to deter them and others from the same or similar transgressions in the future. WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against Defendants and thereafter: A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when Defendants publicly claimed that the reason for his removal was because he is a tax cheat; B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation; C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their individual capacities in such sum as this Court believes will serve to punish them and to deter them and others from like conduct; D. E. Award Plaintiff the costs of this action, together with his reasonable attorneys fees; and Grant such other and additional relief as may appear to the Court to be equitable and just under the circumstances. COUNT II VIOLATION OF PLAINTIFFS EQUAL PROTECTION RIGHTS COGNIZABLE UNDER 42 U.S.C. 1983 For Count II of Plaintiffs cause of action against all Defendants, Plaintiff states as follows:

10

57.

Plaintiff incorporates by reference as if fully set forth herein, all preceding

paragraphs of this complaint. 58. By disqualifying Missey in 2013 while allowing Crisler and Moritz to remain on

the ballot in 2011, Defendants intentionally treated Plaintiff differently from others similarly situated. 59. No rational basis existed for the difference in treatment and this difference in

treatment bears no rational relationship to a legitimate City interest. 60. Defendants have selectively applied the law in a discriminatory way, and

therefore, purposefully and/or intentionally discriminated against Missey. 61. The actions of the Defendants complained of herein were taken under color of

state law and in violation of Misseys right to equal protection under the laws secured by the Fourteenth Amendment to the United States Constitution, a claim cognizable under 42 U.S.C. 1983. 62. As a direct and proximate result of Misseys illegal removal from the ballot

by Defendants, particularly when he was publicly accused of being a tax cheat as the reason for his removal, he has sustained and will continue to sustain damages. 63. As a direct and proximate result of the actions of the Defendants, Missey has

suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation. 64. The conduct of Defendants Sweeney and Waller as alleged herein was reckless

and callously indifferent to the Constitutional rights of Missey, malicious and wanton with respect to those rights, and further taken with an illegitimate animus and/or for improper reasons, and therefore, an award of punitive damages is warranted and necessary to punish Sweeney and

11

Waller and to deter them and others from the same or similar transgressions in the future. WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against Defendants and thereafter: A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when Defendants publicly claimed that the reason for his removal was because he is a tax cheat; B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation; C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their individual capacities in such sum as this Court believes will serve to punish them and to deter them and others from like conduct; D. E. Award Plaintiff the costs of this action, together with his reasonable attorneys fees; and Grant such other and additional relief as may appear to the Court to be equitable and just under the circumstances. COUNT III VIOLATION OF PLAINTIFFS NAME CLEARING HEARING RIGHTS PURSUANT TO THE FOURTEENTH AMENDMENT COGNIZABLE UNDER 42 U.S.C. 1983 For Count III of Plaintiffs cause of action against all Defendants, Plaintiff states as follows: 65. Plaintiff incorporates by reference as if fully set forth herein, all preceding

paragraphs of this complaint. 66. Missey has a constitutionally protected liberty interest in not being removed from

the ballot in a publicly stigmatizing way.


12

67.

Defendants reasons for removing Missey from the ballot stigmatized him by

seriously damaging his standing and association in the community and/or by foreclosing employment opportunities that might otherwise be available by accusing Missey of being a tax cheat. 68. Defendants made the reason for Missey being removed from the ballot

public by making statements to the media and when they publicly released Sweeneys February 13, 2013 memorandum to the Patch. 69. As set forth in paragraphs 21 and 22 above, Missey denies the reason he was

removed from the ballot. 70. The actions of the Defendants complained of herein were taken under color

of state law and in violation of Misseys rights secured by the Fourteenth Amendment to the United States Constitution, a claim cognizable under 42 U.S.C. 1983. 71. As a direct and proximate result of Misseys illegal removal from the ballot

by Defendants under the stigma of being a tax cheat, he has sustained and will continue to sustain damages. 72. As a direct and proximate result of the actions of the Defendants, Missey

has suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation. 73. The conduct of Defendants Sweeney and Waller as alleged herein was reckless

and callously indifferent to the Constitutional rights of Missey, malicious and wanton with respect to those rights, and therefore, an award of punitive damages is warranted and necessary to punish Sweeney and Waller and to deter them and others from the same or similar

13

transgressions in the future. WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against Defendants and thereafter: A. Award damages to Plaintiff resulting from his removal from the ballot based upon the publicly announced reason that he is a tax cheat; B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation; C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their individual capacities in such sum as this Court believes will serve to punish them and to deter them and others from like conduct; D. E. Award Plaintiff the costs of this action, together with his reasonable attorneys fees; and Grant such other and additional relief as may appear to the Court to be equitable and just under the circumstances. COUNT IV VIOLATION OF PLAINTIFFS PROCEDURAL DUE PROCESS RIGHTS COGNIZABLE UNDER 42 U.S.C. 1983 In the alternative to, but without waiver of Counts I through III, if this Court should find that 115.342 R.S.Mo. applies to municipal elections, for Count IV of Plaintiffs cause of action against all Defendants, Plaintiff states as follows: 74. Plaintiff incorporates by reference as if fully set forth herein, paragraphs 1

through 47 of this complaint. 75. Section 115.342.3 R.S.Mo. mandates that in the case of a candidates alleged tax

delinquency, the Missouri Department of Revenue must investigate the claimed delinquency. If

14

the finding of tax delinquency is found by the Missouri Department of Revenue to be true, the candidate is to be given thirty-days to remit any outstanding taxes. Only upon a failure to pay the tax after the 30-day period may a candidate be disqualified from participating in the election. 76. Section 115.342.3 R.S.Mo. creates an interest substantial enough to rise to a

legitimate claim of entitlement protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 77. Defendants refused and/or failed to notify the Missouri Department of Revenue of

the alleged delinquency to permit an investigation that would have established that Missey was not delinquent on his personal property tax, nor did Defendants provide Missey with the statutorily required 30-days to correct any alleged property tax delinquency, if such was the case. 78. R.S.Mo. 79. By ignoring the statutory framework, Defendants, acting under color of state law, Defendants purposefully failed to comply with the provisions of 115.342.3

deprived Missey of the ability to run for public office in violation of the procedural protections to which he was entitled pursuant to Missouri State law in contravention of the Fourteenth Amendment to the United States Constitution, a claim cognizable under 42 U.S.C. 1983. 80. While the state provided an adequate remedy in form and procedurally, the

Defendants intentionally did not apply this remedy before unilaterally removing Missey from the ballot. 81. As a direct and proximate result of Misseys illegal removal from the ballot by

Defendants in violation of his procedural due process rights, particularly when he was publicly accused of being a tax cheat as the basis for his removal, he has sustained and will continue to sustain damages.

15

82.

As a direct and proximate result of the actions of the Defendants, Missey

has suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation. 83. The conduct of Defendants Sweeney and Waller as alleged herein was reckless

and callously indifferent to the Constitutional rights of Missey, malicious and wanton with respect to those rights, and therefore, an award of punitive damages is warranted and necessary to punish Sweeney and Waller and to deter them and others from the same or similar transgressions in the future. WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against Defendants and thereafter: A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when Defendants publicly claimed that the reason for his removal was because he is a tax cheat; B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation; C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their individual capacities in such sum as this Court believes will serve to punish them and to deter them and others from like conduct; D. E. Award Plaintiff the costs of this action, together with his reasonable attorneys fees; and Grant such other and additional relief as may appear to the Court to be equitable and just under the circumstance

16

COUNT V DEFAMATION OF CHARACTER For Count V of Plaintiffs cause of action against Defendants Robert Sweeney and Diane Waller, Plaintiff states as follows: 84. 85. Plaintiff incorporates by reference all preceding paragraphs of this Complaint. Defendant Sweeney publicly asserted that Plaintiff is a tax cheat (e.g., had

illegally avoided paying his personal property taxes). A nonexclusive list of the defamatory statements made by Sweeney about Missey, include: a. It is in effect a city tax Missey owed that we did not get. [Patch,

February 11, 2013]. Exhibit 7-a attached hereto and incorporated by reference herein. b. It is clear that [Waller], as election authority, is disinclined to certify Mr.

Shaun Missey. The primary basis for this position is Mr. Misseys purposeful tax avoidance. [Sweeney Memorandum, dated February 13, 2013 quoted and published in the Patch, February 15, 2013 ]. See Exhibits 6-a and 6-b. c. Mr. Missey is apparently engaged in a marginally complex scheme to

purposefully defraud the taxing authorities [Sweeney Memorandum, dated February 13, 2013 quoted and published in the Patch, February 15, 2013]. See Exhibits 6-a and 6-b. d. Diane Waller did the investigation with the assistance of the (Arnold)

Police Department. They turned up the fact that Mr. Missey was involved in tax avoidance and should be disqualified. This all could have been avoided by Mr. Missey paying his taxes, I get frustrated with people not taking responsibility for their own decisions. Theres this blame game. I didnt make Mr. Missey not pay his taxes, and Diane Waller didnt. To attack Diane for doing her job is childish. [Sweeney quoted in
17

The Leader]. Exhibit 7-b. 86. Waller and/or Sweeny caused Sweeneys Memorandum dated February 13, 2013

to be sent to the Patch, which was then published on the internet on February 15, 2013, making it available to the general public. See Exhibits 6-a and 6-b. 87. 88. The statements published by Sweeney and/or Waller are false. The statements published by Sweeney and/or Waller tended to expose Missey to

public contempt and ridicule and deprive him of the benefit of public confidence and social associations. 89. The statements published by Sweeney and/or Waller were widely read on the

internet and/or in print format through the Leader and Patch. 90. Plaintiffs reputation was damaged by the defamatory statements published by

Sweeney and/or Waller. 91. Defendants published the statements with the knowledge that they are false, or

they acted with reckless disregard for whether the statements were true or false at a time when they had serious doubts as to whether such statements are true. 92. As a direct and proximate result of the actions of the Defendants, Missey

has suffered and will continue suffer damages and emotional pain, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation. 93. Punitive damages are appropriate in this case to punish Defendants and deter them

and others from like conduct in the future. WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against Defendants Robert Sweeney and Diane Waller and thereafter:

18

A.

Award Plaintiff damages in an amount that is fair and reasonable to compensate him for the damage to his reputation, for his financial losses, and for his emotional pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation;

B.

Award Plaintiff punitive damages against Defendants in such sum as this Court believes will serve to punish them and to deter them and others from like conduct;

C. D.

Award Plaintiff the costs of this action, together with his reasonable attorneys fees; and Grant such other and additional relief as may appear to the Court to be equitable and just under the circumstances. COUNT VI PRIMA FACIE TORT In the alternative to but without waiver of the foregoing counts, for Count VI of

Plaintiffs cause of action against all Defendants, Plaintiff states as follows: 94. Plaintiff incorporates by reference paragraphs 1 through 47 of this Complaint as if

fully set forth herein. 95. The Defendants named herein, due to their personal animosity towards Missey

engaged in the intentional lawful act of removing Missey from the ballot. 96. Missey. 97. Misssey has been injured and damaged as a direct and proximate result of In removing Missey from the ballot, Defendants acted with the intent to injure

the intentional lawful act of Defendants as set forth herein. 98. There was an absence of or insufficient justification for the Defendants to remove

Missey from the ballot. 99. The acts and conduct of Defendants Sweeney and Waller, as described above
19

were outrageous because of their evil motive and reckless indifference to Misseys rights, making an award of punitive damages appropriate under the circumstances. WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against Defendants and thereafter: A. B. Award damages to Plaintiff resulting from his removal from the ballot; Award damages to Plaintiff for his emotional pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation; C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their individual capacities in such sum as this Court believes will serve to punish them and to deter them and others from like conduct; D. E. Award Plaintiff the costs of this action, together with his reasonable attorneys fees; and Grant such other and additional relief as may appear to the Court to be equitable and just under the circumstances. COUNT VII CONSPIRACY TO VIOLATE CONSTITUTIONAL RIGHTS For Count VII of Plaintiffs cause of action against Defendants Robert Sweeney and Diane Waller, Plaintiff states as follows: 100. 101. Plaintiff incorporates by reference all preceding paragraphs of this Complaint. Defendants Sweeney, Waller, and upon information and belief others acting under

color of state law, conspired together and amongst themselves and reached a mutual understanding to undertake a course of conduct that violated Misseys constitutional rights. In furtherance of this conspiracy, these Defendants, and upon information and belief unknown others, committed the following overt acts:
20

a.

Defendants entered into an agreement amongst themselves to illegally remove Missey from the April 2, 2013 City Council ballot; and

b.

In order to maximize the embarrassment caused to Missey and to harm his personal and professional reputation, Defendants publicly stated that Missey was removed from the ballot because he is a tax cheat when it became clear that he was not delinquent on any personal property tax.

102.

Defendants shared the general conspiratorial objective which was to violate

Misseys constitutional rights and to thereafter conspired to insulate themselves from civil liability and the consequences of their misconduct. Such conduct was taken or ratified by those with final policymaking authority and/or is so pervasive in the City and is so effective to insulate City personnel from civil sanction that the Defendants felt free to engage in the misconduct set forth herein, without any fear of sanction or retribution. 103. These Defendants, and upon information and belief others involved in the

conspiracy, furthered it by participating in it from its inception or by participating in the cover-up and/or ignoring this course of conduct so as to insulate themselves and others from liability for the outrageous and unlawful acts of the Defendants as described herein. 104. As a direct and proximate result of the conspiracy alleged herein, Missey has

sustained and will continue to sustain damages, particularly when he was publicly accused of being a tax cheat as the reason for his removal from the ballot. 105. As a direct and proximate result of the actions of the Defendants, Missey has

suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation. 106. The conduct of Defendants Sweeney and Waller as alleged herein was reckless

21

and callously indifferent to the Constitutional rights of Missey, malicious and wanton with respect to those rights, and therefore, an award of punitive damages is warranted and necessary to punish Sweeney and Waller and to deter them and others from the same or similar transgressions in the future. WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against Defendants Sweeney and Waller and thereafter: A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when these Defendants publicly claimed that the reason for his removal was because he is a tax cheat; B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation; C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their individual capacities in such sum as this Court believes will serve to punish them and to deter them and others from like conduct; D. E. Award Plaintiff the costs of this action, together with his reasonable attorneys fees; and Grant such other and additional relief as may appear to the Court to be equitable and just under the circumstances. COUNT VIII CIVIL CONSPIRACY For Count VIII of Plaintiffs cause of action against Defendants Robert Sweeney and Diane Waller, Plaintiff states as follows: 107. 108. Plaintiff incorporates by reference all preceding paragraphs of this Complaint. Defendants Sweeney and Waller, and upon information and belief other unknown
22

persons, or two or more of them, entered into an agreement or understanding amongst and between themselves to do an unlawful act, to wit, to defame Missey and/or commit a prima facie tort against him so as to prevent him from running for the Arnold City Council. 109. Defendants (constituting two or more people) had an unlawful objective to commit the unlawful acts set forth in paragraph 108 above. 110. The Defendants, and upon information and belief other unknown persons, had a

unity of purpose, common design and understanding, and/or meeting of the minds to defame Missey, or alternatively to commit a prima facie tort against him to ensure that he would not run for the Arnold City Council. 111. In furtherance of the conspiracy alleged herein, Defendants, and upon information

and belief other unknown persons, took the overt acts of: a. b. Removing Missey from the April 2, 2013 City Council ballot; and In order to maximize the embarrassment caused to Missey and to harm his

personal and professional reputation publicly stated that Missey was removed from the ballot because he is a tax cheat, when it became clear that he was not delinquent on any personal property tax. 112. As a direct and proximate result of the conspiracy alleged herein, Missey has

sustained and will continue to sustain damages, particularly when he was publicly accused of being a tax cheat as the reason for his removal from the ballot. 113. As a direct and proximate result of the actions of the Defendants, Missey has

suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation. 114. The acts and conduct of Defendants Sweeney and Waller, and other unknown co-

23

conspirators as described above, were outrageous because of their evil motive and reckless indifference to Misseys rights, making an award of punitive damages appropriate under the circumstances. WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against Defendants and thereafter: A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when Defendants publicly claimed that the reason for his removal was because he is a tax cheat; B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation; C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their individual capacities in such sum as this Court believes will serve to punish them and to deter them and others from like conduct; D. E. Award Plaintiff the costs of this action, together with his reasonable attorneys fees; and Grant such other and additional relief as may appear to the Court to be equitable and just under the circumstances.

24

Respectfully submitted, PLEBAN & PETRUSKA LAW, L.L.C.

by:

/s/ Lynette M. Petruska C. John Pleban, MO24190 cpleban@plebanlaw.com Lynette M. Petruska, MO41212 lpetruska@plebanlaw.com 2010 South Big Bend Blvd. St. Louis, Missouri 63117 (314) 645-6666 Telephone (314) 645-7376 Facsimile Attorneys for Plaintiff

25