Missouri Law Review

Shirley Phelps-Roper v. City of Manchester, Mo.[1]

2011-10-05T15:42:00.003-05:00

Opinion issued October 5, 2011
Link to Eighth Circuit Opinion

In this case, a three-judge panel from the Eighth Circuit Court of Appeals struck down a Manchester, Missouri ordinance regulating funeral protests. While the Court determined the law was unconstitutional under Eighth Circuit precedent, it noted that the Sixth Circuit recently upheld a similar law. In a concurring opinion, Judge Diane E. Murphy suggested that recent U.S. Supreme Court decisions might recommend a different analytical approach.

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Simpson v. Simpson[1]

2011-10-04T19:28:00.015-05:00

Opinion handed down October 4, 2011
Link to Mo. Sup. Ct. Opinion

Mr. Simpson (Husband) appealed the dismissal of his motion to terminate maintenance arguing that the statutory presumption created by Revised Statutes of Missouri § 452.370, that maintenance terminates upon remarriage of the recipient, was not overcome by the written agreement between him and his wife (Wife), because it did not expressly waive the presumption. The Supreme Court of Missouri disagreed, holding that the express language is unnecessary so long as the writing between the parties extends the obligation, expressly or by implication.

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Wehrenberg, Inc. v. Director of Revenue[1]

2011-10-04T17:44:00.011-05:00

Opinion handed down October 4, 2011.
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that Revised Statutes of Missouri § 144.014, which imposed a one percent state sales tax on the sale of food items that can be purchased with food stamps, did not apply to Wehrenberg, Inc.’s concession sales in its movie theaters. The court reasoned that because the federal food stamp program defined food as “any food product for home consumption,” that Wehrenberg’s concession sales did not meet this definition.

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St. Charles County v. Laclede Gas Co.[1]

2011-08-30T17:20:00.001-05:00

Opinion handed down August 30, 2011
Link to Mo. Sup. Ct. Opinion

St. Charles County (county) recorded on five subdivision plats that some of its public roads are “utility easements” specifically allowing for the installation and upkeep of gas lines. When the county later planned to widen one such road, Pitman Hill Road, Laclede Gas Company (Laclede) refused to pay for the relocation of its gas lines. The county filed a declaratory judgment action, seeking that the Circuit Court of St. Charles County order Laclede to pay for the cost. The circuit court entered a summary judgment in favor of the county. Laclede appealed to the Supreme Court of Missouri, which reversed the circuit court’s judgment and remanded the case. The court held that: 1) the county’s failure to compensate Laclede would constitute an unconstitutional taking; 2) compelling the county to repay Laclede would not curtail the county’s police power over public roads; 3) the doctrine of merger is inapplicable; 4) Laclede’s easement is a compensable property interest regardless of whether it was formed before or simultaneously with the establishment of the public right-of-way; 5) and even though the subdivision plat language creating the public road preceded that which created the utility easements, there was no priority of interest.

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Buemi v. Kerckhoff[1]

2011-08-02T18:22:00.008-05:00

Opinion handed down August 2, 2011
Link to Mo. Sup. Ct. Opinion

The Kerckhoffs[2] appealed a trial court order imposing sanctions of $122,425 in attorney fees for acting in bad faith in a mediated settlement meeting.[3] Since the order imposing sanctions was interlocutory in nature and not a “claim for relief,” the Supreme Court of Missouri dismissed the appeal for lack of final judgment.[4]

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Manzara v. State[1]

2011-08-02T17:05:00.004-05:00

Opinion handed down August 2, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that two taxpayers did not have standing to challenge the constitutionality of the Distressed Areas Land Assemblage Tax Credit Act because the issuance of tax credits was not a direct expenditure of funds generated through taxation. This holding makes it extremely difficult for taxpayers in Missouri to challenge the constitutionality of tax credits.

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State ex rel. Griffin v. Denney[1]

2011-08-02T16:38:00.000-05:00

Opinion handed down August 2, 2011
Link to Mo. Sup. Ct. Opinion

Reginald Griffin was convicted of first-degree murder. The conviction stemmed from the murder of an inmate at a correctional facility in which Griffin was also an inmate. In the course of his appeal and proceedings on his motion for post-conviction relief, he discovered that another inmate, who had been in the prison yard where the murder occurred, had been found with a weapon immediately after the murder. Because the prosecution did not disclose this information to him, and he could not assert the claim in his direct appeal or post-conviction relief proceeding due to procedural issues, he filed a petition for a writ of habeas corpus with the Supreme Court of Missouri. The Court granted the petition, finding that the failure to disclose the evidence prejudiced Griffin. The dissent disagreed after concluding that evidence of a weapon found on the other inmate was not favorable to Griffin.

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State ex rel. Holzum v. Schneider[1]

2011-07-19T23:02:00.004-05:00

Opinion handed down July 19, 2011
Link to Mo. Sup. Ct. Opinion

The case stemmed from a medical malpractice claim filed on the final day of the statutory limitation period for such suits. Following discovery the plaintiff dismissed several of the original defendants, initially unknown and identified as John and Jane Doe, and named multiple new defendants in an amended complaint. The new defendants argued that the claim against them should be dismissed, as it was barred by the running of the statute of limitations. The Supreme Court of Missouri, examining the applicable rules regarding the “relation back” of amendments, held the amendment did not fall within the statutory period and dismissed the claims against the new defendants,. In doing so, the Court clarified and strengthened the pleading standards necessary for “Doe” defendants to toll the statute of limitations.

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Kansas City Premier Apartments, Inc. v. Mo. Real Estate Comm’n[1]

2011-07-19T16:00:00.002-05:00

Opinion handed down July 19, 2011
Link to Mo. Sup. Ct. Opinion

Kansas City Premier Apartments, Inc., a corporation offering advertising and other services through its website, challenged Revised Statutes of Missouri §§ 339.010.1 and 339.010.7, which require a real estate license to perform certain activities. It contended that not only was it exempt from the statutes but also that the statutes violated numerous provisions of the United States and Missouri Constitutions. The free speech challenge is the issue of primary interest. The majority determined the relevant subsections under § 339.010 were permissible regulations of commercial speech. Meanwhile, the dissent unleashed an attack on the entire occupational licensing statutory scheme, and ultimately concluded that under a very recent U.S. Supreme Court ruling, the statute was unconstitutional as a violation of the First Amendment.

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St. Louis County v. Prestige Travel, Inc.[1]

2011-06-28T23:27:00.004-05:00

Opinion handed down June 28, 2011
Link to Mo. Sup. Ct. Opinion

As part of a national trend of similar litigation, St. Louis County and St. Louis Convention and Visitors Commission (CVC) filed suit against Prestige Travel, Inc. (Prestige) and several other online travel companies that contract for discounted motel rooms and then resell the rooms online at a higher price. St. Louis County and CVC claimed that §§ 502.500-502.550 of the revised ordinances of St. Louis County and Revised Statutes of Missouri §§ 67.601-67.626 required these companies to pay certain hotel and tourism taxes, which they had not paid. House Bill No. 1442 (H.B. 1442) was then enacted, exempting such travel companies from the taxes at issue. The circuit court dismissed the case, and on appeal the Supreme Court of Missouri affirmed, holding that Prestige was not obligated under the taxing statutes before enactment of H.B. 1442, and that H.B. 1442 did not violate the Original Purpose, Clear Title, or Single Subject provisions of the Missouri Constitution.

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Mo. Ass’n of Nurse Anesthetists, Inc. v. State Bd. of Registration for the Healing Arts[1]

2011-06-28T21:58:00.007-05:00

Opinion handed down June 28, 2011
Link to Mo. Sup. Ct. Opinion

In 2007, the State Board of Registration for the Healing Arts (the Board) sent a letter to Dr. Kunkel prohibiting his delegation of certain responsibilities to nurses with whom he worked. Dr. Kunkel and other interested parties subsequently filed a petition in circuit court requesting relief from the policy. The trial court granted summary judgment for the Board, dismissing all claims by Dr. Kunkel and the other parties. On appeal, the Supreme Court of Missouri reversed and remanded. The court held that the letter sent to Dr. Kunkel constituted a “rule” and was invalid because the Board failed to follow proper rulemaking procedures as provided by statute. While the Board has the authority to properly promulgate rules on the general subject matter, the court remanded because it is a question of fact to determine if the Board independently possesses this authority. The court’s holding is proper and consistent with statute because the letter to Dr. Kunkel was not limited to the specific facts of his situation. The letter was instead a general statement that all APNs were unqualified to perform certain procedures. To make such general policy statements the Board must instead adhere to the statutorily prescribed rule making procedure.

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State ex rel. Taylor v. Steele[1]

2011-05-31T22:29:00.008-05:00

Opinion handed down May 31, 2011
Link to Mo. Sup. Ct. Opinion

Michael Anthony Taylor pled guilty in 1991 to kidnapping, rape, and first-degree-murder of a young girl. On two occasions he was sentenced to death by a judge. After multiple attempts in both state and federal court to have his sentence overturned, Taylor sought a writ of habeas corpus from the Supreme Court of Missouri. On appeal, Taylor argued that because of subsequent United States Supreme Court decisions, his death sentence was imposed unlawfully by a judge, rather than by a jury, and that his sentence violated his constitutional rights. The Supreme Court of Missouri disagreed, finding that Taylor was not entitled to jury sentencing because he had made a conscious and strategic decision to be sentenced by a judge believing it gave him the best chance of avoiding the death penalty.

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State v. Brown[1]

2011-05-17T10:33:00.012-05:00

Opinion handed down May 17, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri reversed and remanded the second-degree murder conviction of Anthony Brown. At trial Brown had asserted self-defense, and during closing arguments the trial court had permitted the State to use a .38 revolver as demonstrative evidence to rebut Brown’s claim of self-defense. The conviction was reversed because there was no testimony that the .38 was similar to the gun allegedly carried by the victim.

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Schmitz v. Great Am. Assurance, Co.[1]

2011-04-26T09:43:00.002-05:00

Opinion issued April 26, 2011
Link to Mo. Sup. Ct. Opinion

Christine Ewing died from injuries she sustained falling from a portable rock climbing wall at a minor league baseball game.[2] Her parents sued the baseball team’s owner, who had primary and excess insurance policies. After settling with the owner, and in the course of the proceedings against the insurers, four issues arose: (1) whether the excess liability policy required exhaustion of the primary policy before it would apply; (2) whether the rock climbing wall was an “amusement device” within the meaning of the policy’s amusement device exclusion; (3) whether the court was permitted to examine the reasonableness of the underlying judgment; and (4) whether the excess insurer’s refusal to defend was justifiable. The Supreme Court of Missouri held that the excess policy did not require exhaustion, the rock climbing wall was not an “amusement device,” the court was not permitted to examine the reasonableness of the underlying judgment, and the excess insurer’s refusal to defend was unjustifiable.

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Fast v. Applebee’s Int’l, Inc.[1]

2011-04-21T17:38:00.004-05:00

Opinion handed down April 21, 2011
Link to Eighth Circuit Opinion

On interlocutory appeal, the United States Court of Appeals for the Eighth Circuit affirmed the district court’s order denying Applebee’s motion for summary judgment, concluding that the Department of Labor’s (DOL) interpretation of the Fair Labor Standards Act (FLSA), as contained in the Wage and Hour Division’s Field Operations Handbook (Handbook), establishing conditions for when employers could use the alternative minimum wage for tipped employees, was reasonable, persuasive, and entitled to deference.[2]

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Debaliviere Place Ass’n v. Veal[1]

2011-04-12T17:54:00.002-05:00

Opinion handed down April 12, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that a dissolved neighborhood association could transfer its rights to collect assessments from property owners to a new neighborhood association with the same name because the transfer was an appropriate part of the winding up process of the dissolved association.

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State v. Bowman[1]

2011-04-12T15:56:00.003-05:00

Opinion handed down April 12, 2011
Link to Mo. Sup. Ct. Opinion

Gregory Bowman was convicted by a jury of first-degree murder.[2] At the sentencing phase, the jury found six aggravating factors, and the trial court imposed the death penalty accordingly.[3] Bowman appealed the conviction and death sentence to the Supreme Court of Missouri.[4] The Court upheld the conviction but reversed the death sentence.[5] The majority reversed on grounds that during sentencing, the jury considered invalid factors; namely, two previous Illinois murder convictions which were later reversed. Judge Wolff, concurring in part and dissenting in part, engaged in a proportionality review based on Section 565.035 of the Revised Statutes of Missouri; this review led to the same result and brought to light a number of issues that demonstrate the room for error existing in death penalty cases. Given the finality of the death penalty, efforts should be made to decrease room for error as much as humanly possible.

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Webb v. State[1]

2011-03-29T09:39:00.004-05:00

Opinion handed down March 29, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri in Webb v. State adopted a longstanding lower court rule granting evidentiary hearings to defendants claiming ineffective assistance of counsel after having pled guilty allegedly due to misinformation regarding parole eligibility. However, the recent decision by the U.S. Supreme Court in Padilla v. Kentucky may have far greater implications for defense counsels’ traditional duty to inform clients of plea consequences.

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Utility Service Co., Inc. v. Dep’t of Labor and Indus. Relations[1]

2011-03-01T21:53:00.002-06:00

Opinion handed down March 1, 2011
Link to Mo. Sup. Ct. Opinion

Missouri’s Prevailing Wage Act governs the payment of wages to workers engaged in public works’ projects. This remedial legislation ensures fair compensation and protects those individuals involved in construction – not maintenance – of public structures. This case concerns a contractor, Utility Service, Inc. (“Utility Service”), that was hired by Monroe City, Missouri to care for the city’s water storage tank and tower structure, add a safety structure, and thoroughly clean and inspect the unit. After entering into the contract, Utility Service contacted the Department of Labor and Industrial Relations (“Department”) to confirm that their contract with Monroe City did not require the payment of prevailing wages. However, the Department disagreed with the company’s assessment, arguing that the work performed on the water storage tank and tower constituted “construction” under the Prevailing Wage Act. The trial court granted the Utility Service a declaratory judgment against the Department that the work was merely “maintenance.” The Western District Court of Appeals affirmed, but the Supreme Court of Missouri granted transfer and reversed, finding that Utility Service’s contract with Monroe City involved “construction” work and therefore required the payment of prevailing wages.

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In re Foreclosures of Liens for Delinquent Land Taxes by Action in rem Collector of Revenue[1]

2011-03-01T20:49:00.003-06:00

Opinion issued March 1, 2011
Link to Missouri Supreme Court Opinion

On appeal from a decision by the St. Louis City Circuit Court, the Supreme Court of Missouri upheld the confirmation judgment affirming a tax sale of the petitioner’s land. The court held that sending notice by mail to the address listed for the property did not violate petitioners’ due process rights even though the property was vacant and mail was not being delivered to that location. Additionally, because the petitioner failed to present any evidence that the sheriff knew or should have known that notice of tax sale was ineffective, the sheriff was not required to take any additional steps to notify the owner.

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Johnson v. State[1]

2011-03-01T10:27:00.003-06:00

Opinion issued March 1, 2011
Link to Mo. Sup. Ct. Opinion

Ineffective assistance of counsel claims are a fairly common part of criminal appeals and are present in nearly all capital appeals. In the instant case, the Supreme Court of Missouri held that all five of petitioner’s claims were without merit, either because counsel was not deficient, or if he was, that petitioner was not prejudiced by the deficiency, thus once again reaffirming the large burden that a movant carries in an ineffective assistance of counsel claim.

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United States v. Boyce[1]

2011-02-28T18:47:00.003-06:00

Opinion handed down February 28, 2011
Link to Eighth Circuit Opinion

The Court of Appeals for the Eighth Circuit reversed the district court’s decision not to sentence a defendant under the Armed Career Criminal Act and held that a conviction for possession of a weapon in a correctional facility qualifies as a violent felony. The Third Circuit has reached the opposite conclusion, but the Eighth Circuit followed the reasoning of the Fifth and Tenth Circuits.

I. Facts and Holding

In January 2009, James Boyce entered a guilty plea after the United States charged him with “possessing a firearm as a convicted felon” under 18 U.S.C. § 922(g).[2] The presentence investigation report (PSR) disclosed Boyce’s three prior felony convictions.[3] Boyce was convicted of manslaughter in 1981 and burglary, kidnapping, and rape in 1990.[4] Since the Armed Career Criminal Act (ACCA) calls for a mandatory minimum sentence of fifteen years if a defendant has “‘three previous convictions by any court…for a violent felony,’” the issue on appeal was whether a 1986 conviction for possession of a weapon in a correctional facility qualifies as a violent felony.[5]

In 1986, while Boyce was incarcerated in the Missouri State Penitentiary, prison authorities found him in possession of a makeshift weapon resembling an ice pick that measured over eight inches long.[6] The officers discovered the weapon wrapped in a bandage on Boyce’s arm.[7] Because the PSR failed to characterize the 1986 conviction as a violent felony for purposes of the ACCA, the government objected and argued that “violent felony” encompassed the possession conviction.[8] This would constitute Boyce’s third violent felony conviction and subject him to the mandatory minimum sentence under the ACCA.[9]

The district court concluded that “possession of a weapon in a correctional facility is not a violent felony for purposes of the ACCA” and sentenced Boyce to thirty-seven months in prison.[10] Upon the government’s appeal, the Eighth Circuit reviewed de novo the issue of whether Boyce’s prior conviction qualifies as a violent felony.[11] Specifically, the Eighth Circuit found that the district court erred when it overlooked the distinction between subsections (i) and (ii) of section 924(e)(2)(B).[12]

II. Legal Background

The ACCA requires a minimum fifteen year sentence upon a conviction of being a felon in possession of a firearm when the defendant’s record contains three prior violent felony convictions.[13] Under the statute, a violent felony is a crime punishable by a prison sentence greater than one year that either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, extortion, involves the use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another.”[14]

The United States Supreme Court interpreted subsection (i) of the ACCA in Johnson v. United States.[15] Here, the Supreme Court “explicitly stated that it was not interpreting the residual clause of section 924(e)(2)(B)(ii), since that provision was not raised in the case.”[16] In Johnson, the Court concluded that a violent felony qualified under subsection (i) if the crime had as an element the use of violent, physical force “capable of causing physical pain or injury to another person.”[17] In Boyce, the district court relied on Johnson to conclude that Boyce’s Missouri conviction was not a violent felony because the mere possession of the weapon was not active, physical force.[18]

In Begay v. United States, the U.S. Supreme Court set out the correct two-part test governing the application of the ACCA’s residual clause to a defendant’s prior conviction.[19] In order to qualify as a violent felony, the prior conviction must first “‘present[] a serious potential risk of physical injury to another’” as required by subsection (ii).[20] Second, this clause is limited to convictions that are “roughly similar[] in kind as well as degree of risk posed” to offenses listed in subsection (ii).[21]

There is a circuit split as to whether possession of a weapon in prison is “roughly similar[] in kind as well as degree of risk posed” to the crimes listed in the ACCA. Like the Eighth Circuit, the Fifth and Tenth Circuits concluded that possession of a dangerous weapon by a prisoner substantially increases the likelihood of future violence and typically involves purposeful conduct.[22] Alternatively, the Third Circuit found that possession of a weapon in prison is a passive crime involving possession and does not focus on purposeful, violent conduct.[23] The court drew a distinction between possession—which presents only the possibility of a violent confrontation—and crimes that “affect[], directly and aggressively, the victims involved or their property.”[24] The government argued that the heightened security prison context of the possessory crime rendered it “similar”, but the court determined that the inherent dangers alone could not “transform a mere possession offense into one that is similar to the crimes listed.”[25]

III. Comment

After Boyce, the Eighth Circuit is now in company with the Fifth and Tenth Circuits regarding the residual clause of the ACCA.[26] However, it is worth considering the issue from a different perspective to reveal a possible alternate interpretation of the statute.

Is the possession of a sharp object in prison actually similar in kind and degree as burglary, extortion, arson, and the use of explosives? Burglary is essentially entering into a building illegally with the intent to commit a theft or any other crime.[27] Extortion involves obtaining property from another induced by wrongful use of actual or threatened force, violence, or fear.[28] Arson is the malicious burning or exploding of homes and commercial or public buildings.[29] The use of explosives follows closely behind arson—when used in a crime, explosives present substantial danger to a potentially great number of people.[30] When a person commits these acts, regardless of location, he presents a serious potential risk of physical injury to others. Similarly, if an officer of the law sees a person commit these acts, regardless of location, he will arrest that person.

Now consider the possession of a knife. People in our world carry knives daily, some even for the same purpose the court attributed to Boyce’s possession: to indicate that one is “‘prepared to use violence if necessary.’”[31] Indeed, such possession might “create the possibility—even the likelihood—of a future violent confrontation.”[32] However, most Americans would not be comfortable characterizing neighbors that carry knives as “violent and aggressive” and attributing to those people the same qualities as burglars, extortionists, and arsons. Is the passive possession of a knife really the same thing as entering into another person’s home and setting it on fire?

Possession of a knife in prison certainly has the potential to result in dangerous situations. Unfortunately for defendants sentenced under the ACCA in the Fifth, Tenth, and Eighth Circuits, the idle danger of passively carrying a weapon in prison is “roughly similar[] in kind and degree”[33] as other crimes that “affect[] directly and aggressively”[34] actual human victims or their property. The Third Circuit took a different approach that found a meaningful distinction between action and inaction. In Begay, the Supreme Court set a limitation on the residual clause of the ACCA but left the respective circuits to draw their own bright lines. It looks as though the Court may soon need to draw a line of its own.

-Chris Dandurand

[1] No. 10-1886, 2011 U.S. App. LEXIS 3809 (8th Cir. 2011).
[2] Id. at *1.
[3] Id. at *2.
[4] Id.
[5] Id. (quoting 18 U.S.C. § 924(e)(1)).
[6] Id.
[7] Id.
[8] Id.
[9] Id. at *2-3.
[10] Id. at *3.
[11] Id.
[12] Id. at *5. This clause allows for two separate avenues of proving whether a felony at issue will be considered “violent” for purposes of the ACCA. Here, the government argued that the conviction qualified as a violent felony under subsection (ii), the residual clause. Id.
[13] 18 U.S.C. § 924(e)(1).
[14] Id. at § 924(e)(2)(B).
[15] 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010).
[16] 2011 U.S. App. LEXIS 3809 at *5 (8th Cir. 2011).
[17] Johnson, 130 S. Ct. at 1271.
[18] 2011 U.S. App. LEXIS 3809 at *4-5 (8th Cir. 2011).
[19] 553 U.S. 137 (2008).
[20] Id. at 148. (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
[21] Id. at 158. As stated above, subsection (ii) includes burglary, arson, extortion or the use of explosives.
[22] United States v. Marquez, 626 F.3d 214, 221 (5th Cir. 2010); United States v. Zuniga, 553 F.3d 1330, 1335-36 (10th Cir. 2009).
[23] United States v. Polk, 577 F.3d 515, 519 (3rd Cir. 2009).
[24] Id.
[25] Id.
[26] Marquez, 626 F.3d at 221; Zuniga, 553 F.3d at 1335-36.
[27] 13 Am.Jur.2d Burglary § 1 (West 2010).
[28] 31A Am.Jur.2d Extortion, Blackmail, and Threats § 1 (West 2010).
[29] 5 Am.Jur.2d Arson and Related Offenses § 1 (West 2010).
[30] 31A Am.Jur.2d Explosions and Explosives § 182 (West 2010).
[31] United States v. Boyce, 2011 U.S. App. LEXIS 3809 at *9 (8th Cir. 2011) (quoting United States v. Zuniga, 553 F.3d 1330, 1335-36 (10th Cir. 2009)).
[32] Id. (quoting Zuniga, 553 F.3d at 1335).
[33] Begay v. United States, 553 U.S. 137, 158 (2008).
[34] United States v. Polk, 577 F.3d 515, 519 (3rd Cir. 2009).

Children’s Wish Foundation Int’l, Inc. v. Mayer Hoffman McCann, P.C.[1]

2011-02-08T11:45:00.001-06:00

Opinion handed down February 8, 2011.
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri examined whether the comparative fault doctrine applies to professional negligence cases involving economic loss. As a general rule, in negligence actions, Missouri courts apply comparative fault instead of contributory negligence. However, the Uniform Comparative Fault Act says that comparative fault does not apply to cases of negligent misrepresentation involving economic loss. The Supreme Court of Missouri has never ruled squarely on this issue. The court said that all negligence actions are based on fault and the nature of the injury does not inherently warrant the application of comparative fault in some cases and contributory fault in others. Therefore, the Supreme Court of Missouri, disagreeing with the Uniform Comparative Fault Act, held that comparative fault applies in professional negligence cases involving economic loss and that the trial court erred in submitting an instruction to the jury regarding contributory negligence.

I. Facts and Holding

Children’s Wish Foundation, International, Inc. (CWF) brought suit against Mayer Hoffman McCann, P.C. (Mayer Hoffman) and CBIZ Accounting, Tax & Advisory of Kansas City, Inc. (CBIZ) for professional negligence.[2] CWF’s primary activity is providing gifts to terminally ill children.[3] CWF accepts “gifts in kind,” which are charitable donations of property and distributes them to hospitals and Ronald McDonald houses.[4]

Mayer Hoffman was retained by CWF to audit and assess the accuracy of CWF’s financial statements.[5] Under the audit engagement letter, CWF was required to provide complete and accurate financial records to Mayer Hoffman.[6] In the year prior to the audit, CWF received ten times more “gifts in kind” than normal.[7] After consulting outside sources, Mayer Hoffman determined that the fair market value of the gifts stated by CWF was materially accurate.[8] The audit report concluded that CWF’s financial statements fairly represented the charity’s financial position.[9] The financial statements were forwarded to CBIZ and used to prepare CWF’s 1999 tax return.[10]

In truth, CWF did not have accurate financial statements.[11] Mayer Hoffman mistakenly used the quantity of each gift ordered, instead of received, for calculating the quantity of each “gift in kind” contributed to CWF.[12] As a result, the financial statements overstated the value of “gift in kind” contributions by approximately $1.31 million.[13] In October of 2000, a Pennsylvania court opened an investigation regarding the overstated value of the “gift in kind” contributions.[14] As a result, CWF discovered the erroneous records during an internal investigation and filed the instant action in Missouri state court.[15]

At trial, Mayer Hoffman and CBIZ asserted that CWF provided inaccurate records for the audit.[16] A contributory negligence instruction was submitted to the jury over CWF’s objection.[17] The jury found in favor of Mayer Hoffman and CBIZ.[18] CWF’s sole point on appeal was that the trial court erred in submitting a contributory negligence instruction because “contributory negligence should not apply in a negligence action that involves only economic damages and no personal injury.”[19] According to the Supreme Court of Missouri, the comparative fault rule attempts to allocate fault according to the parties’ conduct, even in professional negligence cases.[20] Therefore, the court held that the trial court erred in submitting an instruction to the jury regarding contributory negligence.[21]

II. Legal Background

Missouri courts review “de novo, as a question of law, whether a jury was properly instructed.”[22] If a faulty jury instruction prejudices a defendant, the trial verdict is subject to reversal.[23] CWF argued that the jury instruction was erroneous because Gustafson v. Benda declared that Missouri would follow the comparative fault doctrine instead of contributory negligence.[24] However, Gustafson involved a personal injury claim, whereas the issue in Children’s Wish Foundation was “whether comparative fault applies in a professional negligence action alleging only economic damages.”[25]

Gustafson held that courts in Missouri should apply the comparative fault doctrine in accordance with the Uniform Comparative Fault Act (UCFA).[26] According to the UCFA, comparative fault should not extend to cases of negligent misrepresentation resulting in economic loss unless the state’s common law would permit the extension.[27] According to the court, since the UCFA recognized that comparative fault is possible in certain economic loss cases, the UCFA’s comparative fault rule is not “theoretically incompatible with economic loss cases.”[28] In addition, the court said that the UCFA is concerned with the application of comparative fault, not with the type of injury that can be pleaded in tort cases.[29] Therefore, extending comparative fault to cases of economic loss exceeds the scope of the UCFA.[30]

The trend in Missouri is for courts to hold that Gustafson’s abrogation of contributory negligence is not applicable to negligence cases involving economic loss.[31] However, Children’s Wish Foundation is the first time the Supreme Court of Missouri has directly addressed the issue.[32] According to the court, application of comparative fault should not be limited solely because of the nature of the injury.[33] The crux of a negligence action is the “negligent breach of a legal duty of care that results in injury or loss to the plaintiff.”[34] Since all negligence actions are based on fault, the nature of the injury does not inherently warrant the application of comparative fault in some cases and contributory fault in others.[35]

The court also looked to the law of other jurisdictions and found that many states apply comparative fault to negligence actions regardless of the nature of the damages.[36] Therefore, the Supreme Court of Missouri held that Gustafson’s comparative fault rule should be applied to professional negligence claims resulting in economic loss.[37] As a result, the court found that the trial court erred in submitting a contributory negligence instruction to the jury.[38]

In Missouri, to obtain a reversal due to instructional error, “the party claiming the error must establish prejudice because the instruction misdirected, misled or confused the jury.”[39] Missouri courts adopt a presumption that instructional error is prejudicial when the verdict is in favor of the party for whom the instruction is given.[40] In this case, Mayer Hoffman requested the jury instruction, and the jury found in favor of Mayer Hoffman.[41] Therefore, “CWF was prejudiced because Instruction No. 11 improperly permitted the jury to find that any negligence on the part of CWF served as a bar to any recovery.”[42]

III. Comment

Children’s Wish ties up one of the loose strings in Missouri’s negligence law by extending the application of the comparative fault doctrine to professional negligence cases involving economic loss.[43] In this case, the Supreme Court of Missouri seemed to focus on the importance of uniformity in the law. This is evident from the court’s discussion of reasons to apply comparative fault in all negligence cases, instead of applying comparative fault in some cases and contributory negligence in others.[44] All negligence actions are based on fault, so the nature of the injury does not warrant applying different standards to negligence actions based on the type of harm suffered.[45] The fact that the court focused on uniformity in negligence law signals that the Supreme Court of Missouri will likely apply comparative fault to other areas of negligence law to which the court has not yet expressly extended the doctrine.

-Drew Weber

[1] 331 S.W.3d 648 (Mo. 2011) (en banc).
[2] Id. at 649.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 650.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 649.
[21] Id.
[22] Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. 2003) (en banc).
[23] State v. Carson, 941 S.W.2d 518, 523 (Mo. 1997) (en banc).
[24] Children’s Wish Foundation Int., 2011 WL 681093 at 651 (citing Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983) (en banc)).
[25] Id.
[26] Id. (citing Gustafson, 661 S.W. 2d at 15).
[27] UCFA Section 1 Cmt., 12 U.L.A. Master Ed. 125 (2008).
[28] Children’s Wish Foundation Int’l., 2011 WL 681093 at 652.
[29] Id.
[30] Id.
[31] Id.
[32] Id. at 653.
[33] Id.
[34] Id.
[35] Id.
[36] Id. at 654. See also Scioto Memorial Hospital Association v. Price Waterhouse, 659 N.E.2d 1268, 1272 (Ohio 1996); Florenzano v. Olson, 387 N.W.2d 168 (Minn. 1986); Standard Chartered PLC v. Price Waterhouse, 945 P.2d 317, 353 (Ariz. App. 1996); Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 336 (Fla. 1997); ESCA Corp. v. KPMG Peat Marwick, 959 P.2d 651 (Wash. 1998).
[37] Children’s Wish Foundation Int’l., 2011 WL 681093 at 653-54.
[38] Id. at 654.
[39] Sorrell v. Norfolk S. Ry. Co., 249 S.W.3d 207, 209 (Mo. 2008) (en banc).
[40] Karnes v. Ray, 809 S.W.2d 738, 742 (Mo. App. 1991).
[41] Children’s Wish Foundation Int’l., 2011 WL 681093 at 654.
[42] Id.
[43] Id. at 653-54.
[44] Id. at 653.
[45] Id.

Kivland v. Columbia Orthopedic Group[1]

2011-01-25T19:41:00.002-06:00

Opinion issued January 25, 2011
Link to Mo. Sup. Ct. Opinion

In Kivland, the Supreme Court of Missouri reiterated that, in a wrongful death lawsuit, the guiding standard for expert witness testimony is Mo. Rev. Stat. section 490.065 in which the plaintiff must show that an expert witness is both qualified and capable of clarifying the issues for the trier of fact. In a wrongful death lawsuit, the plaintiff must demonstrate that the defendant was both the direct and proximate cause of the decedent’s death. In this case, the issue was whether the plaintiff had satisfactorily demonstrated the proximate cause element. The court ruled that the element was satisfied when the plaintiff’s expert witness testified in a deposition that the deceased was driven to suicide after an alleged botched surgery resulted in severe, debilitating pain. The court added that the decedent’s mental state was immaterial to the admissibility of the expert witness. The summary judgment was partially reversed and remanded.

I. Facts and Holding

In January 2005, defendant Dr. Robert Gaines attempted to correct an abnormality in Gerald Kivland’s spine.[2] However, the operation allegedly paralyzed Kivland from the waist down, subjecting him to “continuous and extreme pain.”[3] Kivland sued Gaines for medical negligence, and Kivland’s wife sued for loss of consortium.[4] Subsequently, Kivland was prescribed several pain medications, and when those failed, he underwent an operation for a “morphine pump.”[5] He was also prescribed anti-depressant and anti-anxiety medications.[6]

Eight months after Kivland filed the lawsuit, he wrote “farewell letters” to his wife and daughter, bought a gun, and killed himself.[7] His widow subsequently amended the medical negligence claim to include lost chance of survival and wrongful death.[8] Dr. Gaines, however, filed for summary judgment, arguing that the suicide was an independent intervening event, and, as such, he could not be responsible for Kivland’s death.[9]

In a pretrial hearing, the Kivland estate introduced a psychiatrist as an expert witness, who testified that the suicide directly resulted from Kivland’s post-operation pain.[10] Dr. Gaines, however, successfully petitioned the court to block the psychiatrist from testifying as to why Kivland committed suicide, and the court granted Dr. Gaines partial summary judgment.[11] The plaintiff appealed.[12] The Supreme Court of Missouri held that the testimony from the plaintiff’s expert witness satisfactorily demonstrated the proximate cause element in a wrongful death lawsuit.[13]

II. Legal Background

A. Lost Chance of Survival

The Supreme Court of Missouri ruled that the circuit court correctly dismissed the lost chance of survival claim, based on either failure to state a claim or as a motion for summary judgment.[14] Lost chance of survival differs from wrongful death in that it is based on the notion that an individual was injured because his illness had not been properly diagnosed and treated.[15] The key to a lost chance of survival claim is that it is “used when ‘it is impossible for a medical expert to state with ‘reasonable medical certainty’ the effect of the failure to diagnose [or treat] on a specific patient, other than the fact that the failure to diagnose eliminated whatever chance the patient would have had.’”[16] Because the plaintiff did not include such facts, “it [wa]s impossible to establish that Kivland died as a result of the defendants’ negligence,” and the plaintiff failed to make a prima facie case.[17]

B. Wrongful Death

Before examining the issue of partial summary judgment, the Supreme Court of Missouri first examined when a negligent defendant could be liable for a suicide.[18] In a wrongful death claim, the plaintiff must show that the decedent’s suicide was the “direct and proximate result” of the defendant’s negligence.[19] The court noted that previous cases involving suicides and wrongful death lawsuits grappled with the issue of whether a suicide is an “independent and intervening act which breaks the causal connection between the allegedly negligent act and the death.”[20] Other cases have held that a defendant could be held liable for a suicide if the decedent had suffered from insanity or if the decedent acted under “an irresistible” insane impulse when committing suicide.[21]

The court noted that case law regarding suicide and “irresistible impulse” is contradictory and focused instead on causation as the key to a wrongful death claim.[22] To make a claim that would survive summary judgment, the plaintiff must show that the suicide was the “natural and probable consequence” of the defendant’s actions.[23] If the testimony of the plaintiff’s expert witness is admissible, then it would satisfy the proximate cause requirement, the court reasoned.[24] Then, the jury can decide as a “question of fact” whether the defendant’s negligence caused the suicide.[25]

C. Expert Witness Admissibility

The court states that certain criteria must be fulfilled before a trial court may admit expert testimony: “(1) the expert is qualified; (2) the expert’s testimony will assist the trier of fact; (3) the expert’s testimony is based upon facts or data that are reasonably relied on by experts in the field; and (4) the facts or data on which the expert relies are otherwise reasonably reliable.”[26] The court emphasized that it is not the trial court’s role to judge the relative strength or weakness of an expert witness—that task belongs to the jury.[27] So long as the expert witness meets the statutory requirements, the trial court must admit the expert.[28]

D. Summary Judgment Ruling

The Supreme Court of Missouri found that the circuit court erred when it failed to admit the plaintiff’s expert witness.[29] The court applied the statutory requirements of an expert witness to the case at hand and found that the plaintiff’s expert satisfied the minimum criteria: he is a board-certified psychiatrist who has treated patients with similar symptoms, and he can clarify issues for the trier of fact in this medical negligence case.[30]

The circuit court granted summary judgment for the defendant because of the statutory requirement that the expert witness must “rely on facts and data that were reasonably relied on by experts in the field and the facts and data needed to be otherwise reasonably reliable.”[31] Because Kivland did not have a medical diagnosis, nor was he declared insane, the circuit court concluded that the expert witness’ testimony would simply be “personal opinions, not scientific conclusions.”[32]

The court reiterated that plaintiffs do not need to show that Kivland had a medical diagnosis or suffered from insanity: the law simply requires that the plaintiffs show causation.[33] The court noted that the psychiatrist gave his opinion to a reasonable degree of certainty and that it is up to a jury, not the circuit court judge, to decide whether the psychiatrist’s opinion has any credence.[34] The court held that the cause of the Kivland’s suicide is a “genuine issue of material fact” for the jury to decide.[35] The summary judgment was reversed, and the case was remanded.[36]

III. Comment

In Kivland, the Supreme Court of Missouri cut through much dicta related to suicides and clarified that the linchpin for a plaintiff to successfully bring a wrongful death lawsuit is causation. So long as the expert witness is qualified and able to clarify issues for the trier of fact, the trial court has no discretion to disallow expert testimony in a pretrial hearing.[37] This ruling could result in more wrongful death claims getting settled because the plaintiff does not need to worry about expert credibility or even the soundness of expert testimony until trial. If the plaintiff is simply able to survive summary judgment by producing an adequate expert witness, more defendants may be persuaded that there is some merit to the case and that settlement is an attractive option. By focusing on causation as the key in allowing a wrongful death lawsuit, the court reiterated its previous ruling in State Board of Registration for the Healing Arts v. McDonagh[38] and held that section 490.065 controls the admission of expert opinion testimony in civil cases.[39]

-Linda Man

[1] 331 S.W.3d 299 (Mo. 2011) (en banc).
[2] Id. at 302.
[3] Id.
[4] Id.
[5] Id. at 303.
[6] Id.
[7] Id.
[8] Id.
[9] Id. at 303-04
[10] Id. at 304.
[11] Id.
[12] Id.
[13] Id. at 311.
[14] Id. at 306.
[15] Id. at 305.
[16] Id. (quoting Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 682 (Mo. 1992) (en banc)).
[17] Id. at 305.
[18] Id. at 306.
[19] Id. at 307 (citing Wallace v. Bounds, 369 S.W.2d. 138 at 143-44 (Mo. 1963)).
[20] Id. at 307 (quoting Eidson v. Reprod. Health Servs., 863 S.W.2d. 621, 627 (Mo. App. 1993)).
[21] Id. at 307
[22] Id.
[23] Id. at 309.
[24] Id. at 310.
[25] Id.
[26] Id. at 311 (citing Mo. Rev. Stat. § 490.065).
[27] Id.
[28] Id.
[29] Id. at 312.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id. at 313.
[35] Id. at 314.
[36] Id.
[37] Id. at 311.
[38] 123 S.W.3d 146 (Mo. 2003) (en banc).
[39] 331 S.W.3d 299

Moore v. Ford Motor Co.[1]

2011-01-25T18:58:00.002-06:00

Opinion handed down January 25, 2011
Link to Mo. Sup. Ct. Opinion

In Moore, the Supreme Court of Missouri reversed and remanded the trial court’s directed verdict against the owners of an automobile on their claims that the manufacturer failed to adequately warn them of the risks associated with the front seats of the vehicle in the event of a rear-end collision. The court affirmed judgments of the trial court regarding the submission of expert testimony and the inadmissibility of some testimony of the automobile owner.

I. Facts and Holding

Jeanne and Monty Moore bought a 2002 Ford Explorer in April of 2005, and a few months later Ms. Moore was involved in a debilitating wreck.[2] She was hit from behind by another vehicle when she stopped the Explorer to make a turn.[3] The impact of the collision caused the driver’s seat to collapse backwards and Moore’s head and shoulders to hit the back seat.[4] As a result, she fractured her T9 vertebra and became a paraplegic.[5]

The Moores sued Ford, claiming “negligent failure to warn, strict liability failure to warn, negligent design and strict liability design defect.”[6] At 6 foot tall and approximately 300 pounds, Ms. Moore testified that she paid attention to the weight warnings of products she purchased because of her size and that she “routinely read warnings, instructions, and manuals” for information of interest to her.[7] She looked through the manual for the Ford Explorer before her accident and saw “no listing for maximum weight limits” or warnings that seats might collapse backwards in a rear-end impact crash.[8] Ms. Moore testified that she “would not have purchased the Explorer had she known the seats were not designed for [a person] of her size.”[9] Mr. Moore also testified that his wife routinely read product warnings and that he would not have purchased the Explorer had there been any warnings that the seats were not designed for a person the size of his wife.[10]

The trial court granted Ford a directed verdict on the Moores’ failure to warn claims.[11] The court held that, under Missouri law, a failure to warn claim could not be based on a theory “that the consumer would not have purchased the product had a more adequate warning been given.”[12] The Moores dismissed their negligent design claim and the jury found in favor of Ford on the remaining strict liability design claim.[13] The Moores appealed.[14]

II. Legal Background

A. Strict Liability Failure to Warn

In order to establish a cause of action for strict liability failure to warn, a plaintiff must prove that: “(1) the defendant sold the product in question in the course of its business; (2) the product was unreasonably dangerous at the time of sale when used as reasonably anticipated without knowledge of its characteristics; (3) the defendant did not give adequate warning of the danger; (4) the product was used in a reasonably anticipated manner; and (5) the plaintiff was damaged as a direct result of the product being sold without an adequate warning.”[15] Evidence in the record reflected that the Moores established the first, third, and fourth elements.[16] The court focused on whether the Moores presented sufficient evidence for elements two and five in order to survive a directed verdict by the court.[17]

A product does not have to be defective in order for it to be unreasonably dangerous to the consumer.[18] Thus, the fact that the jury did not find the design of the seat in the Moores’ Explorer to be defective did not preclude a claim against Ford that there was a failure to warn of danger to a passenger like Ms. Moore.[19] The court determined that the jury should have decided whether the seat was unreasonably dangerous without a warning of its greater potential to collapse in a rear-end collision while carrying a passenger of Ms. Moore’s size and weight.[20]

Ford also argued that the Moores did not prove that they were damaged directly because of the lack of adequate warning regarding the Explorer seat specifications.[21] While there was no question that Ms. Moore’s injuries were caused during the accident and that the seat collapsed backward, the key issue was whether Moore could prove that a warning would have altered her choice to purchase and use the Ford Explorer.[22]

Under Missouri law, there is a rebuttable presumption that a product safety warning will be heeded if made available to the consumer.[23] The Moores produced evidence that they looked for warnings and read manuals regularly and that a warning by Ford would have caused them to make a different purchasing choice.[24] Based on this evidence, the trial court should have allowed a jury to decide whether the lack of adequate warning was a proximate cause of Ms. Moore’s injury.[25]

B. Negligent Failure to Warn

In order to establish negligent failure to warn, a plaintiff must show that: “(1) the defendant designed the product at issue; (2) the product did not contain an adequate warning of the alleged defect or hazard; (3) the defendant failed to use ordinary care to warn of the risk of harm from the alleged defect or hazard; and (4) as a direct result of the defendant’s failure to adequately warn, the plaintiff sustained damage.” [26]

Again, the first and second elements were established by evidence in the record, and there was sufficient evidence to submit questions about the fourth element to the jury.[27] Thus, the key issue for the court centered on whether Ford exercised ordinary care to warn of the risk of harm.[28] The court concluded that, because it was foreseeable that persons over 220 pounds would use the Explorer and that the seats would collapse backward in a rear-end collision, Ford may have failed to use ordinary care by not including a warning regarding the likelihood of seat collapse for a passenger weighing over 200 pounds.[29] Such a question should have been submitted to the jury, so the directed verdict in favor of Ford was in error.[30]

C. Judge Price’s Dissenting Opinion

In his dissent, Judge Price reasoned that in order to establish damages as a result of failure to warn, the plaintiff must be able to show what constitutes an “adequate warning” in order to claim that such a warning would have been heeded.[31] Lacking such proof, the Moores did not establish a submissible case for either of their failure to warn claims, and the trial court’s determination of a directed verdict in Ford’s favor was correct.[32]

III. Comment

Moore is important because it clarifies the principle that a product can be dangerous, even if it is not defective, if adequate warnings regarding its proper use are not made available to the consumer.[33] In cases where there are known safety risks for some of the consumers likely to buy the product, a claim of failure to warn may be actionable if a plaintiff can submit evidence that he or she would have acted otherwise had warnings been offered.

More importantly, Moore encourages automobile manufacturers to test their products for individuals weighing more than 225 pounds and to include adequate warnings and guidelines for larger consumers who may be affected by possible failures. Moore puts automobile manufacturers on notice that larger individuals are buying and using their products. If manufacturers choose not to heed this notice as justification to test their products for use by these individuals, they may be subject to liability for damages in Missouri under the theory of failure to warn.

-Ronald K. Rowe II

[1] No. SC90681, 2011 WL 265308 (Mo. 2011) (en banc).
[2] Id. at *1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at *1-*2.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at *3 (quoting Tune v. Synergy Gas Corp., 883 S.W.2d 10, 13 (Mo. 1993)).
[16] Id.
[17] Id.
[18] Id. at *4.
[19] Id.
[20] Id. at *5.
[21] Id. at *7.
[22] Id.
[23] Id.
[24] Id. at *8.
[25] Id.
[26] Id. at *9 (citing Mo. Approved Jury Instr. (Civil) 25.09 (6th ed.)).
[27] Id.
[28] Id. at *10.
[29] Id.
[30] Id.
[31] Id. at *14-15.
[32] Id. at *16.
[33] Id. at *4.

Howard v. City of Kansas City[1]

2011-01-25T10:13:00.001-06:00

Opinion handed down January 25, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that a Kansas City municipal court judge is considered an “employee” under the Missouri Human Rights Act (MHRA). Additionally, as a matter of first impression, the court held that municipalities are liable for punitive damages under the MHRA just like any other employer.

I. Facts and Holding

When selecting municipal circuit judges in Kansas City, the Kansas City Charter mandates that a five-member Municipal Judicial Nominating Commission shall interview potential candidates and submit three names to the mayor and city council who then make the final selection by majority vote.[2] The charter’s specific language states that “‘[t]he Council will act to appoint one of the persons nominated by the Commission within sixty days of receipt of the panel from the Commission unless the Council chooses not to fill a vacancy.’”[3]

Municipal Judge Marsha Walsh retired on August 31, 2006.[4] Melissa Howard, the plaintiff in this case, was one of thirteen applicants to fill the vacancy left by Walsh.[5] The commission nominated and submitted the names of three Caucasian women, one of whom was Howard, to the city council.[6] Although the council acknowledged that each of them were well-qualified, the council rejected all three nominees by a 7 to 6 vote in its meeting on November 9, 2006.[7] Despite a meeting to reconsider its decision, the Council again rejected the nominees on December 14, 2006.[8] After the sixty-day window for filling the position had expired, the commission nominated the same three applicants, but the council rejected them once again.[9]

During this time, several council members had shown dissatisfaction with the commission’s nominees because were minorities.[10] Multiple statements were made at the council meetings expressing concern for the lack of diversity in the nominees.[11] Several council members and the mayor later testified that race was a factor in the decision to reject the nominees.[12]

Howard filed suit against Kansas City (“City”) under the Missouri Human Rights Act, alleging “that the City engaged in an unlawful employment practice during the municipal judge appointment process by refusing to even consider hiring her because of her race.”[13] Howard also alleged that she suffered from emotional distress because of the city’s actions and statements regarding the nomination, which had become public.[14] Specifically, she alleged that she suffered sudden weight loss, inability to sleep, stomach sickness, and distress regarding her career in the future.[15]

A jury awarded Howard $633,333 in compensatory damages and $1.5 million in punitive damages as well as attorney’s fees and interest.[16] On appeal, the Supreme Court of Missouri held that (1) Howard was an ‘employment applicant’ under the MHRA and was entitled to its protection; (2) an attorney’s testimony that he told the council that its actions were illegal was admissible as rebuttable evidence; (3) a blog about Howard’s past was inadmissible; (4) the MHRA provides for punitive damages against municipalities; (5) the evidence of punitive damages in this case was sufficient; (6) the city’s claim for error regarding the jury instructions on punitive damages was not properly preserved; and (7) there was sufficient evidence to support an award of attorney’s fees for Howard’s attorney.[17]

II. Legal Background

A. Applicability of the MHRA

The City argued that the MHRA’s definition of “employees” does not include municipal court judges and, therefore, the decision to reject the applicants was not an employment decision.[18] The court stated that the primary issue is “whether a municipal judge, as defined by the city charter, is an ‘employee’ and, if so, whether Howard was an employment applicant under the protection of the MHRA.”[19]

In pertinent part, section 213.055 of the MHRA states that “it shall be an unlawful employment practice . . . [f]or an employer, because of the race . . . of any individual: (a) To fail or refuse to hire . . . [or] (b) To limit, segregate, or classify . . . his employment applicants in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, national origin, sex, ancestry, age or disability.”[20]

Under section 213.010(7), “the state, or any political subdivision thereof” is an “employer.”[21] However, the MHRA does not include a definition of “employee” or “employment applicants.”[22] The City contended that the applicants in this case are “public officials” rather than “employees” and should thus be treated like independent contractors.[23] The court looked at the plain meaning of the word “employee” as “‘one employed by another, usually in a position below the executive level and usually for wages’” to support its finding that municipal court judges are “employees” of the City.[24]

The City cited Sloan v. Bankers Life and Casualty Co. as support for its assertion that municipal court judges should be viewed as to independent contractors rather than “employees.”[25] In Sloan, an insurance salesman sued his employer under the MHRA, claiming that he had been discriminated against on the basis of his age.[26] The issue was whether Sloan was an independent contractor or an “employee.”[27] The court found Sloan to be an independent contractor for a number or reasons, including: Sloan’s contract with the company specifically stated he was an independent contractor; he was paid only through commissions; the company did not withhold any taxes; he was not provided with an office; he determined his own hours; and he provided his own transportation.[28] The Supreme Court of Missouri held that Sloan was not applicable to Howard because of factual differences.[29]

In determining whether someone is an independent contractor, the court stated that “independent contractors are typically hired to complete a specific task, use their own tools in completing their work, are paid a fixed sum on a by-the-job basis, and are not provided with benefits” and is “‘contract[] to perform work according to his own methods without being subject to the control of his employer except as to the result of his work.’”[30]

In contrast, Kansas City municipal judges work full time, are provided with supplies and an office, are paid a regular salary, must follow the law, show up when scheduled, and are subject to termination.[31] Therefore, the court determined, these judges are not “independent contractors.”[32] The court took note that municipal court judges are repeatedly referred to as “employees” on employment forms, which further supports a finding that municipal court judges are “employees” of the City rather than “independent contractors.”[33]

Finally, the court examined conflicting precedent from three other states regarding whether or not a municipal court judge should be considered an “employee” or “independent contractor.”[34] A Texas court and a Tennessee court held that as a public officials, judges are not “employees,” while a Kentucky court held that public officials are “employees.”[35] The Supreme Court of Missouri rejected the rationale used by the Texas and Tennessee courts because their state legislatures had expressly intended for their state civil rights acts to embody the federal civil rights act, which excludes certain “public officials” from its definition of “employees.”[36] However, since Missouri’s act expressed no intention to embody Title VII and excluded Title VII’s definition of “employee,” the court held that the Missouri legislature sought to omit the “public official” exception found in the federal act.[37] Following this analysis, the Supreme Court of Missouri held that a Kansas City municipal judge is an “employee” or an “employment applicant” under MHRA.[38]

B. Admissibility of McLarney’s Testimony

During the trial, Patrick McLarney, an attorney, testified that he had given the City Counsel his professional opinion that it would be an act of discrimination to reject the nominees solely because none of them were minorities.[39] On appeal, the City argued that the trial court erred when it allowed the testimony because it was improper opinion testimony, specifically, that it was evidence regarding an issue of law.[40] However, the Supreme Court of Missouri stated that the trial court had not admitted this evidence as opinion testimony but instead as rebuttal testimony of an earlier witness.[41] The earlier witness, the mayor, had testified that she had been “unaware it was unlawful to consider race when making an employment decision.”[42] Therefore, it was not an abuse of the trial court’s discretion to allow this rebuttal testimony.[43]

C. Admissibility of Evidence Regarding Howard’s Background

The City also argued that the trial court erred by refusing to admit certain evidence, specifically, an unsubstantiated internet blog which contained a story about Howard’s past, which some council members claimed raised concerns for them and was a reason that they voted to reject the nominees.[44] In other words, this evidence might have provided a race-neutral reason for the rejection. The Supreme Court of Missouri rejected this argument, stating that the trial court has broad discretion in admitting or denying prejudicial evidence that is unconfirmed hearsay, and since this evidence was only about Howard, it would still not justify the rejection of all three judicial nominees.[45]

D. Punitive Damages

The City argued that punitive damages should not have been imposed because the rule is that, in the absence of a statute authorizing them, punitive damages are not recoverable against a municipality.[46] Howard argued that the punitive damages rule, section 213.111.2, covers all employers and section 213.010(7) indicates that “employer” includes municipalities.[47]

The court first pointed out that the Missouri Courts of Appeals have uniformly held that municipalities are liable for punitive damages under the MHRA.[48] The City, however, cites to a case decided by the Court of Appeals for the Eighth Circuit, Kline v. City of Kansas City.[49] The Kline court, while acknowledging that the MHRA’s language provided for punitive damages when the various statutes were read in conjunction, held that because the imposition of punitive damages against a municipality was not contained in a single section, the presumption against punitive damages when a municipality is a defendant could not be overcome.[50]

The Supreme Court of Missouri stated that, after the appellate court decisions, the legislature could have altered the phrase “the state, or any political or civil subdivision” in section 213.010’s definition of “employer” if it did not want to continue to treat the state and its subdivisions, including municipalities, as it treats other “employers” for purposes of the MHRA.[51]

The court then reviewed the record and found that the council had made many statements about rejecting the nominees because they were not diverse.[52] The court found that this evidence was sufficient to allow for the jury to have considered punitive damages.[53]

E. Jury Instructions as to Future Damages

The City argued that the trial court’s instruction to the jury regarding future damages was in error because there was no evidence that Howard would suffer damages in the future.[54] The court’s instruction stated, “If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence.”[55]

The court held that the City had not objected to the instruction before the jury had retired to consider its verdict.[56] Additionally, the City’s motion for a directed verdict contained no language regarding the sufficiency of the evidence of future damages.[57] Therefore, this point was not properly preserved for appellate review.[58]

F. Jury’s Verdict as to Compensatory Damages

The City argued that the trial court erred in upholding the verdict because it was not supported by the evidence.[59] Specifically, the City asserted that Howard was not entitled to front or back pay, but did not object when Howard’s counsel addressed this during closing argument.[60] The City also argued that the trial court should have ordered remittitur.[61] The court held that since the City did not object at the time the point was not properly preserved for appeal.[62] Additionally, the point was not preserved, nor was it addressed properly in the City’s brief, and therefore, the City had not established that the damage award was manifestly unjust in order to require remittitur.[63]

G. Attorney’s Fees Award

The City argued that the trial court erred in awarding certain attorney’s fees because those fees were incurred by Howard’s attorney in a different case against the City.[64] The court noted that this argument had already been presented to the trial court, at which point Howard’s attorney requested that any fees which solely related to the other case be excluded.[65] The trial court then based its decision to award attorney’s fees on this amended request for fees.[66] The Supreme Court of Missouri held that the City failed to show that the trial court abused its discretion in awarding these attorney’s fees.[67]

H. Dissent

Chief Justice William Ray Price, Jr. dissented in part.[68] The Chief Justice took issue with the punitive damages award.[69] He argued that, since punishment is supposed to be the objective of punitive damages, this idea is contrary to public policy when applied to a municipality.[70] This is because those who would bear the burden of the punishment, the taxpayers, are the people who are supposed to be benefitting from the public example that is supposed to be made of the wrongdoer.[71]

The Chief Justice argued that reading sections 213.111.2 and 213.010(7) in conjunction does not satisfy the longstanding rule that the statute must “specifically” provide for the imposition of punitive damages.[72] The Chief Justice agreed with the rationale of the Eighth Circuit in the Kline case and would have held that, “[f]or a statute to specifically provide for the imposition of punitive damages against a municipality or other governmental entity it must do so clearly and expressly in a single section, uninterrupted by other statutory provisions.”[73]

III. Comment

In Howard, the Supreme Court of Missouri made it clear that judges are considered “employees” under the MHRA.[74] In holding this way, the court specifically acknowledged the Missouri legislature’s intent to extend the definition of “employees” to public officials, in contrast to Title VII of the federal civil rights act, which excepts public officials from the definition of “employees.” Also, by rejecting the idea that a judge should be seen as an independent contractor, the court provided insight into how to determine whether an individual is an employee or an independent contractor. Finally, in this case of first impression, the court established clear precedent that punitive damages are available against municipalities under the MHRA.

Municipalities must be mindful of how they conduct all hiring processes for their various public officials, making sure to grant all applicants the equal protection ensured to them by the law. If municipalities violate the law regarding this issue in the future, the court has shown that the judiciary is able and willing to impose punitive damages to remedy this discriminatory behavior.

-Adam J. Wallach

[1] No. SC 90762, 2011 WL 265309 (Mo. 2011) (en banc).
[2] Id. at *1.
[3] Id. (quoting Charter of Kansas City, Missouri § 310 (2006)).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at *2.
[13] Id. at *3.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at *8-16.
[18] Id. at *3.
[19] Id.
[20] Id. at *4 (quoting Mo. Rev. Stat. § 213.055.1) (emphasis added in original).
[21] Id. (quoting Mo. Rev. Stat. § 213.010(7)).
[22] Id.
[23] Id.
[24] Id. (quoting Webster’s Third New International Dictionary 743 (1993).
[25] Id. at *5 (citing Sloan v. Bankers Life & Casualty Co. 1 S.W.3d 555 (Mo. App. W.D. 1999).
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id. (quoting State ex rel. MW Builders, Inc. v. Midkiff, 222 S.W.3d 267, 270 (Mo. 2007) (en banc).
[31] Id.
[32] Id. at *6.
[33] Id. at *7.
[34] Id.
[35] Id. (citing Thompson v. City of Austin, 979 S.W.2d 676 (Tex. App. 1998); Bredesen v. Tenn. Judicial Selection Comm’n, 214 S.W.3d 419 (Tenn. 2007)).
[36] Id. at *8.
[37] Id.
[38] Id.
[39] Id. at *9.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id. at *10.
[45] Id.
[46] Id. at *11.
[47] Id.
[48] Id.
[49] Id. (citing Kline v. City of Kansas City, 175 F.3d 660 (8th Cir. 1999)).
[50] Id.
[51] Id. at *12.
[52] Id. at *13.
[53] Id. at *14.
[54] Id.
[55] Id.
[56] Id.
[57] Id. at *15.
[58] Id.
[59] Id. at *16.
[60] Id.
[61] Id.
[62] Id.
[63] Id.
[64] Id.
[65] Id.
[66] Id.
[67] Id.
[68] Id. at *17.
[69] Id.
[70] Id.
[71] Id.
[72] Id.
[73] Id. at *17-18.
[74] Id. at *8.

Puc-Ruiz v. Holder[1]

2010-12-23T20:40:00.000-06:00

Opinion handed down December 23, 2010
Link to Eighth Circuit Opinion

The Eighth Circuit Court of Appeals upheld an administrative ruling by the Board of Immigration Appeals that allowed the United States to deport an illegal alien who was Mexican citizen. Puc-Ruiz is a case of first impression for the Eighth Circuit in which the appellant alleged that he was arrested without probable cause in violation of his Fourth Amendment rights. The court ruled that the Fourth Amendment violation did not reach the standard of “egregious” to warrant suppression of evidence and denied all petitions for review, thus allowing the deportation to proceed.

I. Facts and Holding

St. Charles, Missouri police arrested Jorge Angel Puc-Ruiz about 4 a.m. on August 25, 2007 at a local restaurant after receiving a tip that the establishment was serving alcohol after hours.[1] The police did not obtain a warrant before entering the restaurant.[2] After the arrest, the police contacted and released Puc-Ruiz to U.S. Immigration and Customs Enforcement (ICE), which determined that Puc-Ruiz was an illegal alien.[3] ICE also learned that Puc-Ruiz had previously agreed to leave the United States voluntarily after immigration authorities detained him in 1998.[4] The agency subsequently started deportation proceedings, and Puc-Ruiz was ordered to court.[5]

Roughly two weeks after the initial arrest, the St. Charles police issued a ticket to Puc-Ruiz, alleging that he had violated the municipal ordinance even though there was no evidence that he either owned or operated the restaurant.[6] City prosecutors declined to file charges, and his arrest record was expunged.[7]

In December 2007, Puc-Ruiz appeared in an immigration hearing in which he sought to suppress evidence of his municipal arrest and illegal immigration status and sought to halt his deportation proceedings.[8] The immigration judge (IJ) initially summarily rejected Puc-Ruiz’s motion to suppress, denied his request to leave the United States voluntarily, and ordered his deportation to Mexico.[9] The IJ, at a later date, issued a written decision as to why he rejected Puc-Ruiz’s motions. [10] The IJ reasoned that, even if the initial arrest by the St. Charles police was unwarranted and illegal, it did not prejudice the information the ICE officer had gleaned from Puc-Ruiz regarding his immigration status.[11] Thus, the ICE officer had acted properly.[12] The IJ added that it was within his authority to deny Puc-Ruiz’s request for voluntary departure because the decision was “a matter of discretion.”[13]

Puc-Ruiz moved to strike the IJ’s written decision, stating that it was issued when the case was no longer in the IJ’s jurisdiction and thus was an abuse of discretion.[14] Roughly a year later, the Board of Immigration Appeals (BIA) upheld the admittance of IJ’s written decision and denied Puc-Ruiz’s motion.[15] The BIA stated that because the ICE was not involved with the initial arrest, the agency’s actions and information regarding Puc-Ruiz’s immigration status were “not tainted” and not “subject to suppression.”[16] Furthermore, the BIA found that the IJ did nothing improper despite the fact that he was late in filing his written decision.[17] Puc-Ruiz’s subsequent motion for reconsideration to the BIA was also denied.[18]

Puc-Ruiz appealed the BIA’s decision to the Eighth Circuit.[19] The court dismissed Puc-Ruiz’s petition for review regarding the denial of voluntary departure and denied his petition for review for the remaining points on appeal.[20]

II. Legal Background

A. Fourth Amendment and Due Process

Puc-Ruiz sought to suppress statements and evidence relating to his illegal alien status.[21] He reasoned that if the St. Charles police had not violated his Fourth Amendment rights, his illegal alien status would not have been revealed to authorities.[22] Consequently, Puc-Ruiz argued, the government would have been unable to meet the burden of proof required to deport him.[23] He claimed that wielding improperly obtained evidence is “fundamentally unfair” and a violation of his due process rights under the Fifth Amendment.[24]

Civil deportation cases are generally not subject to the exclusionary rule because the United States Supreme Court has held that the benefits of the probative evidence outweigh the costs to society.[25] However, the Supreme Court “limited its holding to circumstances that [did] not involve ‘egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.’”[26]

In Puc-Ruiz, a case of first impression, the Eighth Circuit examined what constitutes “egregious” and determined that a state action that “‘shocks the conscience’ and ‘offend[s] the community’s sense of fair play and decency’ constitutes an egregious constitutional violation.”[27] A constitutional violation by the state, in and of itself, is insufficient to warrant the exclusionary rule.[28]

Hypothetically, if Puc-Ruiz had been arrested solely on his race or appearance, that violation would be an egregious constitutional violation.[29] However, Puc-Ruiz made no such argument, and the Eighth Circuit held that the Fourth Amendment violation was not sufficient to trigger the exclusionary rule.[30]

The court looked to the U.S. Constitution to determine whether Puc-Ruiz’s due process rights were violated.[31] The court noted that the Fifth Amendment states that, “no person ‘shall be compelled in any criminal case to be a witness against himself.’”[32] However, the Eighth Circuit reasoned that a civil deportation hearing is inherently different from a criminal case in that it does not require any “Miranda-like warning.”[33] The court found no evidence on the record that Puc-Ruiz was forced into divulging his immigration status to ICE through “coercion, duress, or improper action on the part of the immigration officer” and held that there was no due process violation.[34]

B. ICE regulations

The Eighth Circuit found that the ICE did not comply with regulations when it interviewed Puc-Ruiz and the BIA may have improperly shifted the burden to the Puc-Ruiz to prove that ICE had failed to follow regulations.[35] However, the Eighth Circuit found those errors to be harmless because Puc-Ruiz failed to show that his immigration status would not have been discovered otherwise.[36] Furthermore, because ICE regulations are not “constitutionally mandated,” prejudice is not presumed.[37]

Additionally, the court found that BIA acted improperly when it admitted the IJ’s written decision into the record because the IJ lacked jurisdiction and the memorandum did not meet substantive statutory requirements.[38] However, because Puc-Ruiz failed to show how the admittance of the written decision prejudiced him, it also was deemed a harmless error.[39]

C. Denial of Application for Voluntary Departure

Puc-Ruiz argued that he was denied due process and equal protection when he chose to remain silent during the hearing and consequently the IJ became biased against him.[40] Puc-Ruiz argued that those biases manifested themselves in questionable remarks by the IJ during the hearing: “[s]omeone that comes into my court and won’t admit alienage is not going to be entitled to voluntary departure as a matter of my discretion.”[41]

The Eighth Circuit noted that the comment was directed at the petitioner directly preceding Puc-Ruiz and noted that the IJ, in his written decision, had acknowledged that Puc-Ruiz had a right to remain silent in order to preserve his constitutional suppression claim for appeal.[42] The court concluded that the IJ had acted within his authority when he denied Puc-Ruiz’s motion for a voluntary departure.[43]

III. Comment

Puc-Ruiz is illustrative of how difficult it is to overturn a discretionary decision by an administrative law judge. The standard for immigration cases was established in Chen v. Mukasey, which states that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”[44] In Puc-Ruiz, the Eighth Circuit conceded that the BIA erred in allowing the IJ’s written decision into record.[45] The court also acknowledged that the IJ did not submit a written decision until he learned that Puc-Ruiz had filed a Notice of Appeal.[46] Because the IJ lost jurisdiction once the appellant filed a notice of appeal, his actions could be seen as a post-hoc attempt to buttress his summary denial of Puc-Ruiz’s previous motions.[47] In this case, it appears that the IJ feared being overturned. The timing of the IJ’s written decision came one day after Puc-Ruiz had filed his Notice of Appeal with the BIA. However, the IJ had issued his summary decision a month earlier.

Despite the acknowledged irregularity of allowing the IJ’s written decision into the record, the Eighth Circuit relies on it to find that the IJ used his discretion in denying Puc-Ruiz a voluntary departure.[48] Because the IJ had not entered a written decision when he initially denied Puc-Ruiz’ motions, it is difficult to know what the IJ’s reasoning was at the time of the decision. This is critical because the Eighth Circuit cannot overturn findings of fact unless it can conclude that “any reasonable adjudicator” would have concluded differently.[49] But there is not enough in the original record for an adjudicator to make that decision. This high legal standard may have been the difference between a voluntary departure and a forcible removal for Puc-Ruiz and portends a bleak future for aliens who wish to challenge the removal process.

- Linda Man

[1] Nos. 09-1296 and 09-3629, 2010 WL 5185803 (8th Cir. 2010).
[2] Id. at *1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at *2.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at *1
[21] Id. at *3.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id. (quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51(1984)).
[27] Id at *4 (quoting Rochin v. California, 342 U.S. 165, 172-73 (1952)).
[28] Id.
[29] Id. (citing Almeida-Amaral v. Gonzales, 461 F.3d 231, 237 (2d Cir. 2006)).
[30] Id.
[31] Id.
[32] Id.
[33] Id. (citing U.S. CONST. amend. V).
[34] Id. at *5.
[35] Id.
[36] Id. at *6 (citing 8 CFR § 287.3(a) (requiring an alien, who was arrested without a warrant and in removal proceedings, be interviewed by an immigration officer other than the arresting officer unless no other qualified agent is available), 8 CFR 287.3(c) (requiring the state to inform an arrested alien his legal rights, the reasons for the arrest and information for free legal services)).
[37] Id. at *7.
[38] Id.
[39] Id. at *8.
[39] Id.
[40] Id.
[41] Id.
[42] 510 F.3d 797, 800 (8th Cir. 2007) (quoting 8 U.S.C. § 1252(b)(4)(B)).
[43]Puc-Ruiz, 2010 WL 5185803 at *7.
[44] Id.
[45] Id.
[46]See In re Aviles, 15 I. & N. Dec. 588, 588 (BIA 1976); In re Mintah, 15 I. & N. Dec. 540, 541 (BIA 1975); Board of Immigration Appeals Practice Manual § 4.2(a)(ii).
[47] Puc-Ruiz, 2010 WL 5185803, at *2.
[48] Id. at *7.
[49] Id. at *2 (citing Chen, 510 F.3d at 800).

State v. Andrews[1]

2010-12-21T21:22:00.004-06:00

Opinion handed down December 21, 2010
Link to Mo. Sup. Ct. Opinion

In cases where juveniles between the ages of twelve and seventeen are alleged to have committed a felony, the juvenile division may hold a certification hearing in which it may decide to transfer jurisdiction of the juvenile’s case to a court of general jurisdiction, where the juvenile may be tried as an adult. In State v. Andrews, the Supreme Court of Missouri held that Missouri’s juvenile certification statute did not violate the defendant’s Sixth Amendment right to a jury trial as applied in Apprendi v. New Jersey when the certification determination was made by a judge rather than a jury and when the only possible sentence under Missouri law for a minor convicted of first degree murder is life without parole. Additionally, the court held that sentencing a minor to life without parole for first degree murder does not deprive him of his right to be free of cruel and unusual punishment as provided by the Eighth Amendment.

I. Facts and Holding

Fifteen-year-old Antonio Andrews was charged with and found guilty of first degree murder and armed criminal action for the shooting and killing of a police officer.[2] He was sentenced to life in prison without parole.[3] The events that led to Andrews’ conviction occurred on August 15, 2007 and began with Andrews and three of his friends “hanging out” on his porch in St. Louis, Missouri.[4] Andrews and his friend, Lamont Johnson, decided to go to the corner to get some Chinese food.[5] However, before they left, Andrews requested and obtained a .38 caliber revolver from one of his friends.[6] While walking to the restaurant, the two boys encountered Officer Norvelle Brown, who tried to stop and question them.[7]

After fleeing from Officer Brown, who pursued the boys in his patrol vehicle, the boys stopped in a vacant lot at which time Andrews told Johnson that that he was “tired of him chasing us.”[8] Andrews then removed the revolver from his pocket and waited for the pursuing officer to arrive.[9] Upon arrival, Officer Brown exited his vehicle, and Andrews fired a shot that hit him in his upper back, eventually killing him.[10]

The juvenile justice system had original jurisdiction over Andrews because he was a minor at the time he committed the crime.[11] However, on December 26, 2007, after finding that Andrews could not be rehabilitated by the juvenile justice system before his twenty-first birthday, at which time it would lose jurisdiction over Andrews, he was certified to be prosecuted as an adult under the general laws of the State of Missouri.[12]

After Andrews was convicted and sentenced to life without parole for first degree murder and a fifty-year consecutive sentence for armed criminal action, his appeal came directly to the Supreme Court of Missouri.[13] Andrews raised four points on appeal: (1) he challenged “Missouri’s juvenile-certification statute, section 211.071, as violating his right to a jury trial in a criminal prosecution under the Sixth Amendment as applied in Apprendi v. New Jersey;” (2) he challenged Missouri Revised Statutes section 565.020, which provides that a minor who is convicted of first degree murder must be sentenced to life without parole, asserting that it violated “the Eighth Amendment prohibition against cruel and unusual punishment;” (3) he appealed the jury’s guilty verdict, asserting that “there was insufficient evidence from which a reasonable jury could conclude that Andrews committed first degree murder;” and (4) he claimed that the trial court erroneously overruled his motion in limine to prevent the presence of uniformed police officers during the trial.[14]

The majority affirmed the lower court’s verdict, denying all four of Andrews’ points on appeal.[15] As to Andrews’ constitutional challenges, the court held that Missouri’s juvenile certification statute did not violate his Sixth Amendment right to a jury trial, concluding that the rule laid out in Apprendi simply does not apply to a juvenile certification hearing.[16] Additionally, the majority held that Missouri Revised Statutes section 565.020 did not violate Andrews’ right under the Eighth Amendment to the United States Constitution to be free from cruel and unusual punishment, pointing to past precedent that has recognized that life without parole for a minor convicted of first degree murder is not cruel and unusual punishment.[17]

Regarding Andrews’ challenge to the sufficiency of the evidence at trial, the majority concluded that there was sufficient evidence presented at trial to show that he deliberated before killing Officer Brown: Andrews stated that he was tired of the officer chasing them, pulled the murder weapon out of his pocket, and waited for the officer to arrive.[18] Finally, the court quickly dismissed Andrews’ challenge to the trial court overruling his motion in limine, finding that Andrews failed to preserve the issue for appeal because he never brought it up during the trial after his original motion was overruled.[19]

Judge Wolff filed a separate dissenting opinion in which he argued that sentencing a minor to life without parole is cruel and unusual punishment and thus prohibited under the Eighth Amendment.[20] He further argued that if a minor is to receive such a sentence, then it should be because he has been found sufficiently culpable rather than as the result of a statute with a mandatory sentencing scheme.[21]

Judge Stith also filed a separate dissenting opinion.[22] In her dissent, she argued that Missouri’s juvenile-certification statute did in fact violate Andrews’ right to a jury trial as provided for under the Sixth Amendment.[23] Specifically, she argued that the Eighth Amendment requires that an offender’s age be taken into account when determining the punishment to be imposed, and therefore the findings of fact that a judge makes during a juvenile certification hearing, which include consideration of the defendant’s age, should be also be found by a jury beyond a reasonable doubt as required by Apprendi.[24]

II. Legal Background

Missouri Revised Statutes section 211.031 provides that the juvenile justice system has exclusive jurisdiction over all children under seventeen years of age.[25] However, section 211.071 provides that the juvenile division may hold a hearing and waive its jurisdiction regarding any case involving a child between the ages of twelve and seventeen who is accused of committing a felony.[26] When making such a determination, the juvenile division is required to analyze ten factors specified by the statute in determining whether to waive its jurisdiction.[27] When the juvenile division decides to waive its jurisdiction, the effect is that the jurisdiction is transferred to a court of general jurisdiction, where the juvenile may be prosecuted as an adult.[28] Further, Missouri Revised Statutes section 565.020.2 provides that the only possible penalty for a minor convicted of first degree murder is life without parole.[29]

A. Apprendi v. New Jersey

The Sixth Amendment to the U.S. Constitution guarantees the right to a jury trial in a criminal prosecution for first degree murder.[30] The United States Supreme Court further elaborated on this right in Apprendi v. New Jersey.[31] In Apprendi, the court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”[32] Furthermore, almost a decade after Apprendi was decided, the Supreme Court held in Oregon v. Ice that the requirement laid out in Apprendi with regard to the Sixth Amendment right to a jury trial did not apply to findings of fact required in order for a judge to impose consecutive rather than concurrent sentences.[33]

On appeal, Andrews argued that the effect of the juvenile certification hearing that allowed him to be prosecuted as an adult was to enhance his sentence to life without parole.[34] Thus, he asserted that the judge who decided to transfer his case to a court of general jurisdiction must have found that the factors set forth in section 211.071.6 would be proven beyond a reasonable doubt in order to satisfy Apprendi.[35] However, the majority concluded that the determination that Andrews’ case be transferred to a court of general jurisdiction did not serve as a sentence enhancement and thus Apprendi was inapplicable.[36] In fact, the majority concluded that the only effect that the certification judgment had on Andrews was that it determined that his case could be heard by a court of general jurisdiction rather than by a court in the juvenile division.[37]

B. Eighth Amendment Cruel and Unusual Punishment

The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment.[38] However, much case law has been devoted to determining what precisely qualifies as cruel and unusual punishment.[39] Furthermore, a distinction has emerged from this plethora of case law regarding what kind of punishments violate the Eighth Amendment when they are applied to juveniles versus when they are applied to adults.[40]

In 2005, the U.S. Supreme Court held in Roper v. Simmons that sentencing an individual under eighteen years of age to death constitutes cruel and unusual punishment in violation of the Eighth Amendment.[41] More recently in 2010, in Florida v. Graham, the Court was confronted with the issue of whether sentencing a minor to life without parole for a non-homicide offense violates the Constitution.[42] The majority answered this question in the affirmative concluding that minors are less culpable than adults and therefore should not be subject to the most severe punishments.[43]

While Andrews argued that the U.S. Supreme Court’s holding in Graham should be extended to the case in which a minor is convicted of first degree murder and sentenced to life without parole, the Supreme Court of Missouri looked to Roper and Graham and determined that such a punishment for first degree murder committed by a minor does not violate the Eighth Amendment.[44] Specifically, the court noted that in Roper, the U.S. Supreme Court recognized that a sentence of life without parole is sufficiently severe to deter minors from committing homicide.[45] Additionally, the majority noted that in Graham, the Court made a distinction “‘between homicide and other serious violent offenses against the individual’” and concluded that those convicted of non-homicide defenses are less deserving of the most serious punishments than those who commit homicide.[46] Therefore, based on Roper and Graham, the Supreme Court of Missouri concluded that past precedent has implied that life without parole for a minor who is convicted of first degree murder is permitted under the U.S. Constitution.[47]

III. Comment

Justice Wolff stated in his dissent, “Young Christopher Simmons, convicted in Roper of a murder he committed at age 17, was sent to prison to be put to death. In this case, young Andrews also has been sent to prison to die, albeit of whatever natural causes might take him.”[48] This statement correctly illustrates where the Supreme Court of Missouri went wrong in Andrews’ case.

The majority in this case relies on U.S. Supreme Court precedent from both Roper and Graham in determining that sentencing Andrews, a minor, to life without parole does not violate the Eighth Amendment.[49] However, as Justice Wolff correctly pointed out, neither of these two cases expressly held that such a punishment for a minor is permitted by the Constitution, nor has any other U.S. Supreme Court case done so since.[50] In Roper, the Court simply held that sentencing a minor to death violates the Eighth Amendment; however, it declined to go any further and address a sentence of life without parole.[51] The Court in Graham drew a distinction between the culpability of those who commit a homicide and those who commit other violent offenses against the person; however, it did not hold that sentencing a minor to life without parole for first degree murder satisfies the Constitution.[52]

Therefore, while both Roper and Graham may provide guidance on this issue, they certainly are not dispositive. Further, as Justice Wolff so eloquently stated, sentencing a minor to life without parole is essentially equivalent to a death sentence.[53] A sentence of life without parole for a minor denies that child the opportunity for personal growth as he matures and the opportunity for a second chance. Therefore, for the same reasons that it is unconstitutional to execute a minor, it should also be unconstitutional to sentence a minor to life without parole.

-Lindsay A. Ponce

[1] No. SC91006, 2010 WL 5209310 (Mo. 2010) (en banc).
[2] Id. at *1.
[3] Id.
[4] Id. at *2.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at *2-3.
[13] Id. at *1.
[14] Id.
[15] Id.
[16] Id. at *11-12.
[17] Id. at *4-6.
[18] Id. at *6-7.
[19] Id. at *7-8.
[20] Id. at *16-17 (Wolff, J., dissenting).
[21] Id.
[22] Id. at *17-22 (Stith, J., dissenting).
[23] Id. at *21-22.
[24] Id. at *17.
[25] Id. at *2 (citing Mo. Rev. Stat. § 211.031 (2000)).
[26] Id. (citing Mo. Rev. Stat. § 211.071 (2000)).
[27] Id. (citing Mo. Rev. Stat. § 211.071.6). These factors are: “(1) The seriousness of the offense alleged and whether the protection of the community requires transfer to the court of general jurisdiction; (2) Whether the offense alleged involved viciousness, force and violence; (3) Whether the offense alleged was against persons or property with greater weight being given to the offense against persons, especially if personal injury resulted; (4) Whether the offense alleged is a part of a repetitive pattern of offenses which indicates that the child may be beyond rehabilitation under the juvenile code; (5) The record and history of the child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions and other placements; (6) The sophistication and maturity of the child as determined by consideration of his home and environmental situation, emotional condition and pattern of living; (7) The age of the child; (8) The program and facilities available to the juvenile court in considering disposition; (9) Whether or not the child can benefit from the treatment or rehabilitative programs available to the juvenile court; and (10) Racial disparity in certification.” Mo. Rev. Stat. § 211.071.6.
[28] Andrews, 2010 WL 5209310 at *2.
[29] Mo. Rev. Stat. § 565.020.2 (2000).
[30] U.S. Const. amend. VI.
[31] Apprendi v. New Jersey, 530 U.S. 466 (2000).
[32] Id. at 525.
[33] Andrews, 2010 WL 5209310 at *3 (citing Oregon v. Ice, 555 U.S. 160 (2009)).
[34] Id. at *2.
[35] Id.
[36] Id. at *5.
[37] Id.
[38] U.S. Const. amend. VIII.
[39] See Roper v. Simmons, 543 U.S. 551 (2005); see Florida v. Graham, 130 S. Ct. 2011 (2010).
[40] Id.
[41] 2010 WL 5209310 at *6 (citing Roper v. Simmons, 543 U.S. 551 (2005)).
[42] Id. (citing Florida v. Graham, 130 S. Ct. 2011 (2010)).
[43] Id.
[44] Id.
[45] Id. (citing Roper, 543 U.S. at 572).
[46] Id. (citing Graham, 130 S. Ct. at 2027).
[47] Id. at *7.
[48] Id. at *8 (Wolff, J., dissenting).
[49] Id. at *6-7.
[50] Id. at *8-9 (Wolff, J., dissenting).
[51] Id. at *9-10 (citing Roper, 543 U.S. at 551).
[52] Id. (citing Graham, 130 S. Ct. 2011).
[53] Supra note 45.

In re Finnegan[1]

2010-12-21T00:09:00.004-06:00

Opinion handed down December 21, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri rejected a recommendation that a family court commissioner be made to retire because the recommending commission lacked the authority to do so. The court ruled that the Commission on Retirement, Removal, and Discipline only had authority to make decisions regarding judges, members of judicial commissions, and members of the commission itself.

I. Facts and Holding

April 2010, Timothy J. Finnegan, “family court commissioner for the Circuit Court of St. Louis City,” petitioned the Commission on Retirement, Removal, and Discipline (the Commission) to retire him.[2] The Commission investigated his request and found that he was incapable of performing his duties due to disability.[3] The Commission issued findings of fact and law recommending to the Supreme Court of Missouri that he be granted retirement with disability benefits.[4]

II. Legal Background

In order to determine whether the court should accept the Commission’s recommendation for Finnegan, the court first decided whether the Commission had authority over family court commissioners.[5] Article V, section 24 of the Missouri Constitution mandates that the scope of the Commission’s authority is limited to judges, judicial committee members, and members of the Commission itself.[6] Mr. Finnegan was not a member of the Commission itself.[7] Thus, the court only needed to determine if he was a judge or member of a judicial commission as defined by Missouri law.[8]

In order to determine if Finnegan was a judge, the court considered their ruling in Slay v. Slay.[9] In Slay, the court held that a family court commissioner’s signed documents are not true “judgments” because only documents signed by a judge could be considered as such.[10] The court then found that only judicial officers who are selected and authorized to serve by Article V of the Missouri Constitution garner the title of judge.[11] Because family court commissioners are not selected according to the mandates of Article V, they are not judges and thus the Commission does not have authority over them.[12]

Next, the court considered whether Finnegan was a member of a judicial commission.[13] Using the plain meaning of the term “commission,” the court found that this term refers to “a group or body that performs some delegated public function.”[14] Applying this meaning to “member of a judicial commission,” the court reasoned that such a member would be a part of a “group or body.”[15] Because family court commissioners do not perform their tasks as members of a group or body, such commissioners are not members of a judicial commission.[16] Thus, they are not subject to the scope of the Commission’s authority.[17]

While the Commission did not have the authority to recommend disability retirement, the court found that Finnegan was eligible for retirement under other Missouri statutes.[18] Section 487.020.3 entitles a commissioner to retirement benefits equal to that of an associate circuit judge, and section 104.518.1 provides that some state employees including “‘any person who has served . . . as commissioner or deputy commissioner of the circuit court . . .’” are eligible for disability retirement benefits.[19] Thus, Finnegan would be eligible for long term disability benefits despite the fact that the Commission had no authority to recommend his retirement.[20]

The court concluded that, because Finnegan was neither a judge nor a judicial commissioner, the Commission did not have the authority to recommend his retirement and denied the recommendation.[21]

In a concurring opinion, Judge Wolff reiterated that commissioners like Finnegan had no constitutional authority to exercise judicial power and suggested that this was a good reason to phase them out.[22] After the voter-approved amendment to the Missouri Constitution, Article V, passed in 1976, only judges selected by a non-partisan committee or elected by popular vote have judicial powers.[23] Commissioners like Finnegan are selected by the circuit court judge where they serve.[24] They perform most of the functions of judges but do not sign judgments or preside over cases other than those they were appointed to hear.[25] Because commissioners like Finnegan are appointed by circuit court judges where they serve, they do not qualify as judges with judicial powers under Article V.[26] Thus, they do not have constitutional authority to exercise judicial powers.[27]

While recognizing the dedication and service of the individual commissioners, Wolff suggested that family court commissioners and judicial officers should be phased out through voluntary retirement without being replaced by the Supreme Court.[28] If the particular circuit court needs continued assistance with its judicial workload, he suggested that the legislature could then create a new judge for that circuit pursuant to the requirements of the Missouri Constitution.[29]

III. Comment

As constitutional issues go, this one seems quite minor. Nonetheless, maintaining circuit court commissioners who perform judicial functions, but are not endowed with the judicial powers of other Article V judicial officers, seems to be an issue that should be resolved by the government body most capable of doing so. In Finnegan, Judge Wolff suggested that the judiciary use its power to encourage the legislature to act on this issue.[30] Barring legislative action to create a statutory solution for phasing out these circuit court commissioners, one would have to guess that Judge Wolff’s suggestion will lead the way on this issue. Either way, Finnegan suggests that commissioners increasingly will be replaced with judges in the coming years.

- Ronald K. Rowe II

[1] 327 S.W.3d 524 (Mo. 2010) (en banc).
[2] Id. at 525.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 526.
[8] Id.
[9] Id. (citing 965 S.W.2d 845 (Mo. 1998) (en banc)).
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. (citing Webster’s Third New International Dictionary 457 (1993)).
[15] Id. at 527.
[16] Id.
[17] Id.
[18] Id.
[19] Id. (quoting Mo. Rev. Stat. § 476.515.1(4)).
[20] Id. The attorney general argued that removal of a commissioner is a responsibility held by the circuit judges who appoint and supervise them. Brief of Appellant at *14-15. As such, the circuit judges under whom Finnegan served would be the correct authority to recommend his removal. Id.
[21] 327 S.W.3d at 527.
[22] Id.
[23] Id. at 529.
[24] Id.
[25] Id. at 530.
[26] Id.
[27] Id.
[28] Id. at 527, 531-32.
[29] Id. at 532.
[30] Id. at 531-32.

Moore v. State[1]

2010-12-07T20:06:00.004-06:00

Opinion handed down December 7, 2010
Link to Mo. Sup. Ct. Opinion

A convicted felon in the State of Missouri has only one available avenue to correct an allegedly improper trial or conviction. Missouri Supreme Court Rule 29.15 provides that such a felon must make a claim that his conviction is improper due to (a) ineffective assistance of trial or appellate counsel, (b) the sentencing court’s improper exercise of jurisdiction, or (c) an excessive sentence in violation of the law.[2] This case involves a defendant, Anthony Moore, who was convicted of first degree murder and sentenced to life in prison without parole. Moore was informed by the judge at his sentencing that he would have ninety days to file for relief under 29.15 and received a copy of the court’s mandate from the court clerk that triggered the ninety day countdown; however, he waited 218 days and filed after the deadline. As a result, the lower court rejected Moore’s motion, and Moore appealed to this court, claiming that his appellate counsel ineffectively failed to notify him of the mandate. The Supreme Court of Missouri affirmed the dismissal of Moore’s 29.15 motion.

I. Facts and Holding

This case involves a defendant, Anthony Moore, convicted of two counts of murder and sentenced to life imprisonment.[3] In 2007, Moore stood trial for the murder of his two children, which had taken place in 2004.[4] Waiving his right to a jury trial, Moore was found guilty by the trial court of two counts of first degree murder and sentenced to life in prison without parole.[5] During the trial proceedings, Moore was informed that he had the ability to seek post-conviction remedy under Rule 29.15, provided he file such a motion within ninety days of the official mandate of his sentence.[6] The judge explained to Moore that a proper motion required him to claim that he was either poorly represented, sentenced to prison by a court improperly exercising jurisdiction, or that his two terms of life imprisonment exceeded the maximum punishment under law.[7] After hearing his options, “Moore indicated that he understood his right to file the motion.”[8] Before the mandate was issued, however, Moore’s legal counsel properly appealed to the Missouri Court of Appeals, Eastern District, but his conviction was affirmed in August 2008.[9] As a result, the official mandate for Moore’s sentence was finally issued on October 16, 2008, establishing a Rule 29.15 motion deadline of January 14, 2009.[10]

On March 13, 2009, several months after the deadline, Moore’s appellate attorney notified him that his deadline for the motion had passed but encouraged him to file for relief as soon as possible.[11] Still, Moore failed to file his motion until May 22, 2009, far past the initial ninety-day limit.[12] Moore appealed after his motion was summarily dismissed by the lower court, claiming that his lawyer’s failure to inform him of the October mandate led to his untimely filing.[13] Moore, however, admitted to receiving notice of the entered October mandate from the clerk of the court.[14]

The Supreme Court of Missouri engaged in an analysis of both Rule 29.15 and Moore’s ineffective assistance of counsel claim.[15] Under Missouri law, a defendant must comply with the ninety-day deadline or risk dismissal of his motion.[16] Furthermore, the courts have determined that failure to file a 29.15 motion in a timely fashion may only be excused “(1) when post-conviction counsel abandons the movant; [or] (2) when rare circumstances outside the movant’s control justify late receipt of the motion.”[17] Finding neither abandonment by counsel nor the existence of rare circumstances, the court affirmed the dismissal of Moore’s untimely motion.[18]

In a concurring opinion, Judge Stith agreed with the majority’s assessment of Moore’s appeal but added an exploration of attorney obligations under the rules of professional responsibility.[19] Indeed, “where counsel affirmatively has told the client that counsel will take responsibility for a matter, then the client had the right to rely on that statement.”[20] Missouri courts have upheld this sentiment, provided a defendant can show such reliance occurred as a result of an attorney’s statement.[21] However, as Judge Stith noted, Moore produced no evidence of such an arrangement and had actual knowledge of the date and content of the mandate; thus, the facts in this case fail to show ineffective assistance of counsel.[22]

II. Legal Background

In reviewing a lower court’s dismissal of a Rule 29.15 motion, this court may overturn the decision only if the lower court’s “findings of fact and conclusions of law are clearly erroneous.”[23] Such a robust standard requires the court to have a strong conviction that the dismissal of a 29.15 motion was incorrect.[24] In this case, however, the court did not have a “definite and firm impression that a mistake ha[d] been made” and, thus, affirmed the dismissal.[25]

A Rule 29.15 motion is intended to notify the court that a defendant “seeks post-conviction relief.”[26] If such a defendant is pro se, the court expects that the motion serve only as notice of appeal and, as a result, “legal assistance is not required” for filing.[27] After this initial motion, the pro se defendant may then obtain counsel, who will file a more comprehensive and accurate motion.[28] However, if a defendant fails to file his first notification motion in a timely manner, he loses all ability to seek relief under 29.15.[29]

Despite the hard line on 29.15 waivers, Missouri courts have created two exceptions that allow consideration of late motions.[30] These judicially-created excuses allow a motion to be heard in court if (a) the defendant is abandoned by his post-conviction counsel and, as a result, he was “deprived of meaningful review of the claims” or (b) “rare circumstances” prevent timely filing.[31] Courts have held, however, that abandonment only occurs when a defendant does not receive meaningful review of his claims because his post-conviction attorney failed to file a motion, if the counsel herself files an untimely motion, or if the counsel actually stops a defendant from filing within the ninety-day deadline.[32]

The facts of Moore’s case do not comply with any abandonment argument, particularly because Moore directed his complaint at his appellate counsel, who “ha[d] no duty to represent a movant in post-conviction relief filings,” nor did she ever agree to such representation.[33] Indeed, Moore was dutifully informed of the mandate date by the clerk of the court and indicated at sentencing that he understood the instructions for filing a 29.15 motion himself.[34] It is important to note here that Judge Stith’s concurring opinion addressed an alternative outcome of the case had Moore’s appellate attorney actually agreed to “take responsibility” for informing him of the motion deadline.[35] Although it is true that a defendant need not require legal assistance to file a motion, if he is told by counsel that she will take care of the filing, counsel will then be liable for ineffective assistance if she fails in her promise.[36] This is so because Missouri ethics rules impose additional obligations on attorneys that would be triggered if Moore had proved that his appellate attorney assured him that she would inform Moore of the deadline or even file the motion on his behalf.[37]

The second exception of rare circumstances is even less applicable to Moore’s case. Indeed, these sort of circumstances involve mail mis-delivery or filing in the wrong court.[38] As such, the court found “no rare circumstances in this case that justify Moore’s failure” to file on time.[39]

III. Comment

The Rules of the Supreme Court of Missouri exist to keep legal proceedings consistent, ordered, and efficient while balancing the public interest of appeals, criminal review, and other due process rights. In Moore, Rule 29.15 serves as an exemplar of this balance, allowing defendants to bring claims for relief, but only if these claims are brought within a certain time period.[40] No different than a statute of limitations, Rule 29.15 requires a defendant to file minimal notification of appeal within ninety days after the final mandate of his sentence.[41] Indeed, the form to file such a motion is straightforward, and judges, just as the sentencing judge in Moore’s case did, will explain the process to a defendant to ensure comprehension and compliance.[42]

The defendant in Moore, though unrepresented by post-conviction counsel, claimed to rely on his appellate counsel for timely filing of his 29.15 ruling, but the facts of the case speak otherwise.[43] Indeed, Moore was notified by the official court clerk that his mandate had been issued, thus triggering the ninety-day clock.[44] Further, despite the March warning by his appellate counsel of the past-due status of his motion, Moore waited until May to finally file for post-conviction relief.[45] The scenario in Moore speaks more to a failure on the defendant’s part to adhere to strict court rules than failure on an attorney to keep the defendant on time. Such rules not only exist to protect defendants but also serve a broader interest of maintaining a working legal system.

- Brianna L. Lennon

[1] 328 S.W.3d 700 (Mo. 2010) (en banc).
[2] Id. at 701 (citing Mo. Sup. Ct. Rule 29.15) (Such a motion must be filed within ninety days of the sentencing mandate.).
[3] Id.
[4] State v. Moore, 264 S.W.3d 657, 660 (Mo. App. E.D. 2008).
[5] Id.
[6] Moore, 328 S.W.3d at 701.
[7] Id.
[8] Id.
[9] State v. Moore, 264 S.W.3d. at 664.
[10] Moore, 328 S.W.3d at 701.
[11] Id. In this notification, appellate counsel did note that she “had mistakenly failed to timely advise” Moore of the mandate. Moore v. State, 2010 WL 1328144 at *1.
[12] Moore, 328 S.W.3d at 701.
[13] Moore 2010 WL 1328144 at *1.
[14] Moore, 328 S.W.3d at 701.
[15] Id. at 702-03.
[16] Id. at 702 (citing McFadden v. State, 256 S.W.3d 103, 108-09 (Mo. 2008) (en banc)).
[17] Id.
[18] Id. at 703.
[19] Id. at 703.
[20] Id. (citing McFadden, 256 S.W.3d at 109).
[21] Id. at 703-04.
[22] Id. at 705.
[23] Id. at 702 (citing Rule 29.15(k)).
[24] Id. (citing McFadden, 256 S.W.3d at 106).
[25] Id.
[26] Id. (citing Bullard v. State, 853 S.W.2d 921, 922-23 (Mo. 1993) (en banc)).
[27] Id. (citing Bullard, 853 S.W.2d at 923).
[28] Id. (citing Rule 29.15(e)).
[29] Id. (citing Rule 29.15(b)). This bar includes preventing defendants from bringing claims for ineffective assistance of counsel, improper jurisdiction, or excessive punishment after the 29.15 deadline passes. See Gehrke v. State, 280 S.W.3d 54, 59 (Mo. 2009) (en banc).
[30] Id.
[31] Id. (citing McFadden, 256 S.W.3d at 108-09). A defendant may also be abandoned if his counsel actively stops him from filing his motion, but the court barely addressed this exception, as it did not apply to Moore’s case. Id. (citing McFadden, 256 S.W.3d at 109).
[32] Id. (citing Gehrke, 280 S.W.3d at 57) (emphasis in original).
[33] Id.
[34] Id. at 703.
[35] Id.
[36] Id. (citing McFadden, 256 S.W.3d at 109); see also Rule 4-1.3.
[37] Id. at 704.
[38] For examples, see id at 703 (citing Nicholson v. State, 151 S.W.3d 369, 371 (Mo. 2004) (en banc); Spells v. State, 213 S.W.3d 700, 701-02 (Mo. App. W.D. 2007)).
[39] Id.
[40] Id. at 701.
[41] Mo. Sup. Ct. Rule 29.15.
[42] Moore, 328 S.W.3d at 701; see also Mo. Crim. Proc. Form 40.
[43] Moore, 328 S.W.3d at 701-02.
[44] Id. at 703.
[45] Id. at 701.

United States v. Redzic[1]

2010-12-06T22:50:00.001-06:00

Opinion handed down December 6, 2010
Link to Eighth Circuit Opinion

On remand from the United States Supreme Court, the Eighth Circuit Court of Appeals held that the defendant’s convictions for mail fraud and wire fraud under an “honest services” theory, a theory that was not explicitly stated in the indictment, trial arguments, or jury instructions, did not amount to a constructive amendment of the indictment. The court also held that defendant’s bribery conviction was supported by sufficient evidence.

I. Facts and Holding

Mustafa Redzic owned Bosna Truck Driving School, a commercial truck driving school in St. Louis, Missouri.[2] After completing school, students were required to take a test that consisted of a written exam and a three-part driving exam consisting of a “pre trip inspection, a skills test, and a road test.”[3] The test was administered by either a state facility or by a private company certified by the State of Missouri.[4]

One of these private companies was Commercial Drivers Training Academy (CDTA), located in Sikeston, Missouri.[5] Troy Parr was responsible for overseeing the tests that CDTA administered.[6] Mr. Parr, in an attempt to get more business, began to “omit entire portions of the driving exam or administer it in only a fraction of the time necessary for a proper evaluation. These short tests did not meet the minimum requirements set by the state for [commercial drivers license (CDL)] testing.”[7] Parr used this system of “short testing” on Redzic’s students and would file the corresponding paperwork with false indications that the students had completed the requirements to receive a commercial driver’s license.[8]

On one occasion, at Redzic’s request, Parr submitted paperwork for two students who had never gone to CDTA.[9] On another occasion, Redzic made a promise that one of his potential students would pass the driving test even though she could not operate a manual transmission.[10] Evidence also showed that Redzic paid CDTA in excess of $50 and $200 on at least twelve different occasions, which Parr split between himself and the other examiners.[11] Redzic also made cash payments of $600 and $2,500 to Parr on two occasions.[12] Parr testified that he had been helping Redzic try to obtain state certification for Bosna and that Redzic had offered him employment, a salary of 150 percent of his current salary, a free apartment, bonuses, and free vacations.[13]

Redzic was convicted in federal court of mail fraud, wire fraud, bribery, and conspiracy.[14] He did not offer any evidence at trial but did file two motions for judgment of acquittal; one at the close of the Government’s case and another at the close of all of the evidence.[15] Both motions were denied, and Redzic was convicted by a jury on all counts.[16] Following his convictions, Redzic filed a motion for a “new trial and a motion for judgment of acquittal.”[17] One issue raised for the first time in the post-trial motions was that ‘CDLs are not property under the federal fraud statutes.[18] The district court denied both motions, and the Eight Circuit affirmed.[19] The U.S. Supreme Court granted certiorari and vacated the judgment, returning the case to the Eighth Circuit for consideration in light of its decision in Skilling v. United States.[20]

On remand, the Eighth Circuit held that the indictment, the government’s trial arguments, and the jury instructions showed a scheme to defraud Missouri of Parr’s honest services through a bribery scheme because the scheme was reasonably described in the indictment, trial arguments, and jury instructions even though the honest services theory was never explicitly mentioned.[21]

II. Legal Background

A. The Phrase “Honest Services” and the Effect of Its Exclusion from the Indictment

The Eighth Circuit began by examining Redzic’s convictions for mail and wire fraud.[22] The federal mail fraud statute states that “‘[w]hoever, having devised . . . any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises . . . [uses the mails in furtherance of the scheme shall be punished by imprisonment or fine or both].’”[23] The federal wire fraud statute is substantially similar to the mail fraud statute.[24]

The U.S. Supreme Court has determined that the language in these statutes only applies to deprivations of property and does not include “‘the right to have [a state’s] affairs conducted honestly.’”[25] However, under section 1346, the term “‘scheme or artifice to defraud’” does include a deprivation of the “right to honest services.”[26] In Skilling v. United States, the Court held that section 1346 “criminalizes only ‘fraudulent schemes to deprive another of honest services through bribes or kickbacks.’”[27]

In Redzic, Redzic argued that the Government failed to proceed on this “honest services” theory and instead focused on the theory that the State of Missouri was defrauded of property in the form of CDLs.[28] Therefore, Redzic asserted that his convictions should be overturned because, as a matter of law, “fraudulently obtaining a license from a government agency does not deprive that agency of property in the sense of §§ 1341 or 1343.”[29] In response, the Government argued that Missouri was deprived of its right to Parr’s honest services through the use of bribes.[30] Redzic responded that since he was not charged with depriving Missouri of honest services, but instead with defrauding Missouri of property, the government was constructively amending the indictment in violation of his Fifth Amendment protection against double jeopardy.[31]

The Eighth Circuit stated that “[a]n indictment is insufficient if it fails to allege an essential element of the crime charged.”[32] However, in making this determination, it is not necessary that a particular word or phrase appear in the indictment when the element alleged is substantially stated in some form.[33] The court noted that although the indictment did not explicitly use the phrase “honest services,” it still sufficiently stated the substance of the bribery scheme.[34] The court reviewed the indictment, stating the provisions that it believed to make the indictment sufficient to implicitly state an honest services theory: Parr worked for the state as a CDL examiner; licensing of truck drivers served economic and safety needs of the state; Parr would give short tests to Redzic’s students as per an agreement between them; Parr certified two of Redzic’s students who never showed up to be tested; Parr would falsely complete paperwork stating that the students who took the short tests had passed all of the testing; and Redzic benefitted from this scheme.[35]

Additionally, sections 1341 and 1343 were cited in the indictment and created the substantive offenses for which Redzic was charged.[36] Since section 1346 does not create one of the substantive offenses at issue, but rather only further defined the offenses, its inclusion in the indictment was not necessary.[37] While inclusion of the term “honest services” in the indictment would have been preferable, failing to include the term was not fatal.[38] Since the indictment clearly alleged Redzic’s conduct, including his role in Parr’s wrongdoing and promises of future employment, and the indictment also cited to the appropriate substantive statutes which incorporate the fraudulent services theory, the court concluded that the indictment was sufficient.[39]

B. The Phrase “Honest Services” and Its Exclusion from the Government’s Trial Arguments

Redzic argued that since the Government’s trial arguments did not mention “honest services,” the Government’s focus on a loss of property theory at trial was misplaced.[40] The court disagreed, stating that because the government continually referenced Parr’s practice of administering inadequate short tests, which undermined the state’s efforts to promote highway safety, the government was implicitly arguing the theory that the honest services Parr owed the State of Missouri had been withheld.[41] Therefore, Redzic’s second point on appeal also failed.[42]

C. The Phrase “Honest Services” and Its Exclusion from the Jury Instructions

Redzic also argued that the jury was only instructed on a deprivation of property theory and that attempting to uphold his conviction on the “honest services” theory would violate his Sixth Amendment right to a jury trial.[43] The court noted that the jury instructions correctly stated the substantive elements for mail and wire fraud and that the instructions identified the scheme in detail by stating: “‘Troy Parr and the defendant submitted by mail to the State of Missouri false test records for Commercial Drivers License tests purportedly given to the defendant's students.’”[44] After observing the contents of what the jury instructions, the court reasoned that they did not merely suggest fraud by Redzic in obtaining the CDLs, but that he also used a state agent who withheld his honest services in order to secure these licenses.[45]

Again, the court noted that while it would have been preferable to include the term “honest services” in place of “property” in the instructions, this omission was not fatal.[46] The court reasoned that because the elements of mail fraud appeared in the instructions and because Redzic’s scheme was characterized as one in which a state agent was used and acted in dereliction of his duties, the instructions, when read as a whole, adequately conveyed the applicable law.[47]

Redzic argued that the indictment was insufficient to charge him under the honest services theory and cited Stirone v. United States to support his claim.[48] In Stirone, the indictment charged the defendant with interference with sand importation into Pennsylvania.[49] However, the jury instructions allowed the jury to consider whether the defendant’s conduct would have disturbed any future exportation of steel from Pennsylvania.[50] The U.S. Supreme Court held that the jury should not have had the choice to convict him of something that was not considered by the grand jury.”[51]

The Eighth Circuit distinguished the present case by noting that, although the phrase “honest services” was not used in the indictment, the grand jury considered facts that were essential to the conviction.[52] In Redzic, there was no invitation for the petit jury to wander beyond the allegations contained in the indictment.”[53] Based on all of the above, the Eighth Circuit held that the jury instructions were “sufficient to support a conviction for the fraudulent deprivation of honest services through a bribery scheme.”[54]

D. Sufficient Evidence for Bribery

Redzic additionally argued that his payments were merely gratuities, whereas section 666(a)(2) prohibits bribery.[55] Section 666(a)(2) states that whoever “‘corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more[ ] shall be fined under this title, imprisoned not more than 10 years, or both.’”[56] Redzic specifically argued that the government failed to prove that he gave the money as a bribe with the intent to “influence or reward.”[57]

After reviewing the evidence of the various payments from Redzic to Parr, the court determined that the jury could find that Redzic possessed the intent to induce Parr to keep using substandard tests to Bosna students and thus the evidence was sufficient to convict Redzic of bribery.[58]

E. Holding

The Court of Appeals for the Eighth Circuit held that the indictment, the government’s trial arguments, and the jury instructions showed a scheme to defraud Missouri of Parr’s honest services through a bribery scheme because the scheme was reasonably described in the indictment, trial arguments, and jury instructions even though the honest services theory was never explicitly mentioned.[59]

III. Comment

The Eighth Circuit’s decision in Redzic sheds light on the meaning of section 1346 and its “honest services” theory after the U.S. Supreme Court’s holding in Skilling v. United States. The court makes clear that, even if an indictment explicitly states that the Government is proceeding on a deprivation of property theory, if the substantive elements for mail fraud and wire fraud are presented in the indictment, trial arguments, and jury instructions, then the indictment is still sufficient to support a conviction under section 1346’s “honest services” theory even though this theory is never explicitly mentioned.

The court still requires that the allegations in the indictment clearly spell out the course of conduct for which the defendant is on trial and citation to the appropriate substantive statutes for mail fraud and wire fraud. However, since sections 1341 and 1343 incorporate the fraudulent deprivation of honest services found in section 1346, it need not be explicitly mentioned in the indictment.[60]

The Government should be aware, however, that the court still prefers that the “honest services” theory is specifically mentioned in the indictment, arguments, and jury instructions when the Government proceeds on this theory.[61] What Redzic makes clear is that failure to include this is not always fatal.[62]

-Adam J. Wallach

[1] 627 F.3d 683 (8th Cir. 2010).
[2] Id. at 685.
[3] Id. at 685-86.
[4] Id. at 686.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. (citing 18 U.S.C. §§ 1341, 1343, 666(a)(2), 371).
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 686-87.
[19] Id. at 687, 685.
[20] Id. at 685. See Skilling v. United States, 130 S.Ct. 2896 (2010).
[21] Redzic, 627 F.3d at 693.
[22] Id. at 687.
[23] Id. (quoting 18 U.S.C. § 1341 (2010)).
[24] Id. (citing 18 U.S.C. § 1343 (2010)).
[25] Id. (quoting McNally v. United States, 483 U.S. 350 (1987)).
[26] Id. (quoting 18 U.S.C. § 1346 (2010)).
[27] Id. (quoting Skilling v. United States, 130 S.Ct. 2928, 2931 (2010)).
[28] Id.
[29] Id.
[30] Id. at 687-88.
[31] Id. at 688.
[32] Id.
[33] Id. (quoting United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir. 1988)).
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id. at 689.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id. at 689-90.
[46] Id. at 690.
[47] Id.
[48] Id. (citing Sitrone v. United States, 316 U.S. 212 (1960)).
[49] Redzic, 627 F.3d at 690.
[50] Id.
[51] Id.
[52] Id.
[53] Id.
[54] Id. at 691.
[55] Id. (citing 18 U.S.C. § 666(a)(2)).
[56] Id. The monetary requirements were stipulated to being met in this case by the parties. Id.
[57] Id.
[58] Id. at 692.
[59] Id. at 693.
[60] Id. at 688.
[61] Id. at 689.
[62] Id.

Cole v. Roper[1]

2010-11-05T23:33:00.004-05:00

Opinion handed down November 5, 2010
Link to Eighth Circuit Opinion

The Court of Appeals for the Eighth Circuit affirmed the district court’s denial of habeas corpus relief for a death row inmate convicted of first-degree murder, first-degree assault, first-degree burglary, and two counts of armed criminal action. The inmate argued a Batson challenge, ineffective assistance of counsel, due process violations, and prosecutorial misconduct.

I. Facts and Holding

A. Background

The defendant, Andre Cole, was married to his wife Terri for eleven years before divorcing in 1995.[2] Cole failed to supply the court-ordered child support, and by August 1998 he was behind by almost $3,000.[3] On August 21, 2008, after learning that his wages would be garnished to pay the support, Cole went to his ex-wife’s house and forced entry by throwing a tire iron through the back patio door into the living room.[4] Terri’s friend Anthony Curtis requested that Cole depart, to which Cole responded by stabbing and slashing the man more than twenty times.[5] After fatally wounding Curtis with an eight-inch deep knife wound to the back, Cole wielded the blade on his ex-wife Terri, who managed to survive the assault.[6] DNA evidence confirmed that Curtis’ blood appeared on the weapon and Cole’s blood appeared at the crime scene.[7] Cole argued that he broke into the home without a weapon and that the much-larger Curtis had actually attacked him.[8] A jury convicted Cole on all counts, and he was sentenced to death.[9] Cole timely appealed to the district court for habeas corpus relief.[10]

B. Habeas Corpus Action

Cole raised numerous claims in his petition, the district court denied each without a hearing, and the Eight Circuit certified the following claims for appeal: “(1) a Batson claim regarding [a] black veniremember . . . who was struck by the prosecution; (2) . . . ineffective assistance of counsel based on counsel’s failure to investigate Cole’s social and medical history, specifically on the days leading up to the crime; (3) . . . ineffective assistance of counsel based upon counsel’s failure to present evidence during the penalty phase about Cole’s exemplary prison conduct while awaiting trial; (4) due process claims based upon Cole’s allegedly visible leg restraint during the guilt and penalty phases; (5) claims for prosecutorial misconduct during closing argument in both the guilt and penalty phase; and (6) the cumulative effect of the foregoing errors.”[11]

1. The Batson Challenge

The defendant argued that the state’s use of a peremptory challenge to strike an African American man from the venire violated Batson v. Kentucky.[12] The prosecutor’s race-neutral reason for the strike was primarily based on the venireperson being divorced like the defendant and that a divorced juror might feel sympathy for the defendant.[13] The Supreme Court of Missouri approved and found that “equivocal answers about the death penalty and having a cousin with a murder conviction” also qualified as race-neutral reasons under Batson.[14] The Eighth Circuit noted that the trial court’s Batson analysis may have been lacking, but the Supreme Court of Missouri’s analysis “was not contrary to, nor an unreasonable application of, Supreme Court precedent.”[15]

2. Failure to Investigate Cole’s Mental and Emotional Disturbance

This argument essentially boiled down to an ineffective assistance of counsel claim under Strickland.[16] Cole argued that although he “had undergone two pretrial psychiatric evaluations by mental health experts…counsel should have had him evaluated by a third.”[17] The Supreme Court of Missouri considered the argument on the merits, finding no deficiency by counsel because the two experts who previously analyzed Cole had concluded that he did not suffer from a mental disease or defect when he committed the crime.[18] Thus, the Supreme Court of Missouri found that a failure to shop for a contrary expert was not ineffective assistance of counsel, and the Eight Circuit held that such a determination was not an unreasonable application of Strickland.[19] Further, Cole likely did not suffer any prejudice from counsel’s failure to seek out a more favorable psychiatric evaluation because the trial court already had two strong expert opinions on the record.[20]

3. Failure to Investigate and Present Evidence Regarding Cole’s Exemplary Prison Conduct

The next failure to investigate argument was again an ineffective assistance of counsel claim under Strickland.[21] Cole argued that counsel failed to investigate and present three witnesses: two employees of the jail and a nun in charge of religious services.[22] The jail employees would have allegedly testified to Cole’s character, stating that he was “mild mannered” and “an exceptional worker.”[23] The nun would have claimed that Cole “spoke from the heart” during prayer and that he was a “polite class leader who was respected among the inmates.”[24]

At the defendant’s Rule 29.15 motion hearing, counsel testified that “her experience with presenting evidence on a defendant’s good behavior in jail was generally ineffective.”[25] The Supreme Court of Missouri found that counsel’s strategic decision-making was sufficient and that such evidence would have been cumulative of Cole’s other character witnesses.[26] The Eighth Circuit affirmed the district court’s denial of this point.[27]

4. Visible Restraint

Cole argued that the state violated his due process rights under Deck v. Missouri because his leg brace restraint was allegedly visible to jurors during the guilt and penalty phases of his trial.[28] Cole’s original motion for postconviction relief did not include an argument under Deck because Deck had not been handed down at that time.[29] After Deck held that unjustified restraint during the penalty phase was unconstitutional, Cole filed a motion to recall the mandate and included the shackling argument.[30]

The Eighth Circuit dismissed Cole’s argument pertaining to shackling during the guilt phase because he failed to adequately preserve the claim for review by the state courts.[31] The court reasoned that “unjustified restraint during the guilt phase” has been unconstitutional since 1986 and Cole should have raised the point of error in his earlier appeals.[32] However, the court considered the argument pertaining to shackling during the penalty phase because the Deck decision had come down after Cole’s original appeal and was raised as soon as possible in his motion to recall the mandate.[33]

Cole’s argument failed on the merits because the restraint was essentially a knee brace underneath his pants and even Cole’s own attorney was unaware that he was physically restrained until Cole told her.[34] The court reasoned that since “his own attorney was unaware that Cole was restrained, it is extremely unlikely that the jury was aware of it.”[35] Thus, Deck’s prohibition of “visible shackles” was not violated, and the district court ruled properly.[36]

5. Prosecutorial Misconduct

Cole argued that the prosecutor’s closing remarks, during both the guilt and the penalty phases, prejudiced him and rendered his trial “fundamentally unfair.”[37] Defense counsel did not object to any of the allegedly improper statements at trial; thus, none of the claims were preserved for direct appeal.[38] The Supreme Court of Missouri rejected the majority of Cole’s claims under the plain error standard and found that the “convicted killer” statement by the prosecutor was “a single inadvertent remark” that did not prejudice the defendant.[39]

The Eighth Circuit analyzed the prosecutor’s statements and found them to be “either not improper, or even if they were, . . . not so inflammatory and prejudicial as to render the trial fundamentally unfair and constitute a denial of Cole’s due process.”[40] The court again found that the Supreme Court of Missouri’s decision was not an unreasonable application of U.S. Supreme Court precedent.[41]

II. Legal Background

Batson v. Kentucky controls challenges regarding peremptory strikes of venirepersons for race-based reasons.[42] The court’s examination of a challenged peremptory strike under Batson requires a three-step analysis.[43] First, the defendant must make a prima facie showing that the prosecutor exercised a peremptory challenge of a person based on race.[44] Next, the state must rebut this showing by putting forth a race-neutral explanation for the strike.[45] Finally, after the state presents its race-neutral explanation, the trial court makes the decision whether or not the defendant has established “purposeful discrimination.”[46]

Strickland v. Washington controls a defendant’s claims of ineffective assistance of counsel in criminal cases.[47] This standard, known as the performance and prejudice test, requires the defendant to satisfy two prongs.[48] First, the defendant must show that the attorney’s conduct fell below an “objective standard of reasonableness,” thereby rendering representation “deficient.”[49] If that prong is met, the defendant must prove there is a “reasonable probability” that but for the deficient representation, the outcome would have been different.[50]

Deck v. Missouri controls whether a defendant can be visibly shackled or restrained during the penalty phase of a capital case.[51] This decision essentially imported the reasoning and holding of Holbrooke v. Flynn, where the Court held that a defendant may not be visibly shackled during the guilty phase of a capital case unless the restraint is justified by an essential state interest.[52] A violation of Deck at the penalty phase, or Holbrooke at the guilt phase, renders the proceeding fundamentally unfair and requires a new trial.[53]

Darden v. Wainwright controls whether a defendant can be granted habeas corpus relief due to prosecutorial misconduct.[54] Under Darden, a defendant is granted relief if the prosecutor makes an improper closing argument that “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’”[55] Courts must exercise this oversight under narrow due process standards, rather than the “‘broad exercise of supervisory power.’”[56]

III. Comment

Cole v. Roper demonstrates what most defendants on death row in the State of Missouri are expected to do: throw as many arguments at the court as possible and see what sticks. The majority opinion in Roper dispatched with Cole’s arguments fairly easily, but the dissent believed enough error existed that Cole deserved a new penalty phase trial.[57]

The dissent believed that trial counsel’s failure to investigate and present evidence regarding Cole’s behavior during pre-trial detention rendered Cole’s representation constitutionally ineffective.[58] The majority and the dissent agreed on the facts of the case but applied them differently to the law.[59] The majority gave deference to the Supreme Court of Missouri’s conclusions regarding the failure to investigate being a legitimate trial strategy.[60] The dissent believed that the strategy of not presenting evidence of behavior during pre-trial detention could be a legitimate trial strategy but that the utter failure to investigate this behavior in the first place was unacceptable.[61] Thus, in the eyes of the dissent, the Supreme Court of Missouri’s approval of counsel’s failure to investigate was unreasonable.[62]

Defense counsel in capital cases should see Cole v. Roper as the court protecting counsel’s discretion, but the dissent makes a valid point. Even if an attorney does not plan to present evidence regarding a defendant’s behavior during pre-trial detention, the attorney should at least conduct a minimal investigation when he visits the defendant at the jail. This effort would balance the interest of the defendant, who wants his case fully investigated, and the defense counsel, who must be afforded discretion in trial strategy.

- Chris Dandurand

[1] 623 F.3d 1183 (8th Cir. 2010) (Cole III).
[2] Id. at 1186.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. Cole’s convictions and sentences were upheld by the Supreme Court of Missouri on direct appeal. State v. Cole, 71 S.W.3d 163 (Mo. 2002) (Cole I). The trial court also denied Cole’s Rule 29.15 motion for post-conviction relief; the denial was affirmed on appeal. Cole v. State, 152 S.W.3d 267 (Mo. 2004) (Cole II).
[10] Cole III, 623 F.3d at 1186.
[11] Id. at 1186-87. The argument regarding the cumulative effect of errors was foreclosed by precedent and not discussed at any length in the opinion. Id. at 1196 (citing Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002)).
[12] Id. at 1187.
[13] Id.
[14] Id. at 1188.
[15] Id.
[16] Id. at 1189. The performance and prejudice test requires the court to “determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 690, 694 (1984).
[17] Id.
[18] Id. at 1190.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id. at 1190-91.
[24] Id. at 1191.
[25] Id. at 1190.
[26] Id at 1190-91.
[27] Id. at 1191.
[28] Id. Deck v. Missouri held that due process was violated by visibly shackling a defendant during the penalty phase of a capital trial without a justifiable state interest. 544 U.S. 622, 630-32 (2005).
[29] Id.
[30] Id.
[31] Id. at 1192.
[32] Id.
[33] Id.
[34] Id. at 1193.
[35] Id.
[36] Id.
[37] Id. Cole objected that the prosecutor: personalized the evidence by saying, “I can’t emphasize enough to you the seriousness of this case nor can I emphasize enough to you the strength of the State’s case;” accused Cole of sneaking around and terrorizing Terri at night; destroyed Cole’s presumption of innocence by stating that defendants are usually “sitting in that chair…for a reason;” called Cole a “convicted killer;” made statements regarding sending a message to the people of St. Louis County about justice; and unfairly appealed to the jury’s sympathy by characterizing Terri as a “dying woman.” (Terri was suffering from the effects of Lou Gehrig’s Disease at the time of trial). Id. at 1193-94.
[38] Id. at 1194.
[39] Id. The Supreme Court of Missouri reasoned that the “convicted killer” remark did not prejudice Cole because the jury had previously been apprised of Cole’s actual prior convictions, none of which involved a homicide. Id.
[40] Id. at 1195.
[41] Id. at 1196.
[42] 476 U.S. 79, 89 (1986).
[43] See Snyder v. Louisiana, 552 U.S. 472, 476-77 (2010).
[44] Id.
[45] Id.
[46] Id.
[47] 466 U.S. 668 (1984).
[48] Id. at 687.
[49] Id. at 687-88.
[50] Id. at 694.
[51] 544 U.S. 622 (2005).
[52] 475 U.S. 560, 567-68 (1986).
[53] Deck, 544 U.S. at 629; Holbrook, 475 U.S. at 567-68.
[54] 477 U.S. 168 (1986).
[55] Id. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).
[56] Id. (quoting Donnelly, 416 U.S. at 642).
[57] 623 F.3d 1183, 1200 (8th Cir. 2010) (Cole III).
[58] Id. at 1197.
[59] Id. at 1196-1200.
[60] Id. at 1197.
[61] Id. at 1198.
[62] Id.

City of Lake Saint Louis v. City of O’Fallon[1]

2010-10-26T21:40:00.000-05:00

Opinion handed down October 26, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri examined whether municipalities may bring declaratory judgment actions to solve boundary disputes with other municipalities. Individuals are prohibited from bringing such actions, but it was not clear if the prohibition extended to municipalities and other public corporations. The court said that the public policy reasoning behind prohibiting individuals from bringing such actions does not apply to municipalities. Therefore, the Supreme Court of Missouri allowed Lake St. Louis to bring a declaratory judgment action against O’Fallon to determine the boundary between the two cities.

I. Facts and Holding

On March 26, 2009, Lake St. Louis, a municipality in St. Charles County, filed a petition for declaratory judgment against O’Fallon, another municipality in St. Charles County.[2] Lake St. Louis alleged that it annexed property in 1982 which expanded its northern boundary to Interstate 70.[3] According to the petition, O’Fallon disputed the northern boundary and “subsequently annexed property, issued permits, and t[ook] other actions within the boundary of Lake Saint Louis . . . .”[4] The petition claimed that Lake St. Louis had “a legally protectable interest in enforcing its ordinances, collecting and administering taxes, and protecting” its rights in the disputed area.[5] Lake St. Louis asked the trial court to enter judgment declaring that the city’s northern boundary was the land it annexed in 1982 and that O’Fallon did not legally annex that property.[6]

O’Fallon filed a motion to dismiss in April 2009, alleging that Lake St. Louis could not “bring a declaratory judgment action to determine its boundaries” because the only mechanism for determining whether the annexation was proper was to have a quo warranto action filed by the attorney general or prosecuting attorney of St. Charles County.[7] Alternatively, O’Fallon claimed that the statute of limitations for a declaratory judgment action had expired.[8] The trial court granted the motion to dismiss, but it did not specify the ground upon which it ruled.[9]

Lake St. Louis appealed the dismissal, arguing that a municipality may bring a declaratory judgment action to determine its boundaries instead of relying solely on the attorney general’s or prosecuting attorney’s discretion as to whether to bring a quo warranto action on behalf of the municipality.[10] O’Fallon argued that Lake St. Louis’s goal was to oust O’Fallon from the land and the exclusive remedy for such an action is to file a writ of quo warranto.[11] According to Rule 98.02, only the attorney general or a prosecuting attorney can bring an action in quo warranto.[12] As a result, O’Fallon argued that Lake St. Louis did not have authority to obtain the relief it was requesting.[13]

Lake St. Louis argued that the Supreme Court of Missouri has never held that the reasoning underlying Rule 98.02 applies when the dispute is between two municipalities and concerns land boundaries.[14] According to Lake St. Louis, the attorney general or prosecuting attorney has discretion to bring a suit, but “[t]he governmental entity, . . . as the party directly affected, should have the right instead to bring a declaratory judgment action in its own name to vindicate its directly affected interest in the office or territory.”[15] O’Fallon urged the court to hold “that the prohibition on declaratory judgment actions by individuals also applies” to municipalities.[16]

On appeal, the Supreme Court of Missouri ruled that the dismissal of Lake St. Louis’s petition was unwarranted.[17] Therefore, the judgment of the trial court was reversed.[18]

II. Legal Background

A. Motion to Dismiss

According to Nazeri v. Missouri Valley College, “a motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff’s petition.”[19] A court reviews the petition and determines whether the allegations are sufficient to establish a cause of action.[20] The court must take as true plaintiff’s averments and liberally grant all reasonable inferences to plaintiff.[21]

A motion to dismiss is reviewed de novo by an appellate court.[22] An appellate court will only consider the grounds raised in a motion to dismiss when the trial court’s dismissal of a petition is under review.[23] In this case, the Supreme Court of Missouri did not reach the merits of Lake St. Louis’s boundary claims because they were not one of the grounds required in a motion to dismiss.[24] As a result, the court only considered whether the grounds raised in the motion to dismiss actually supported dismissal.[25]

B. Proceedings in Quo Warranto

“To bring an action in quo warranto the ‘attorney general, prosecuting attorney, or circuit attorney may file an information ex officio, by virtue of the power of his [or her] office without leave of court when such an action would serve the public interest.’”[26] The attorney general or a prosecutor may bring a quo warranto action directly or “at the relation” of an interested person.[27]

Individuals, who are prohibited from bringing a quo warranto action, sometimes attempt to bring suit for an injunction or declaratory judgment seeking the same relief in order to sidestep the prohibition.[28] In Spiking School District No. 71, DeKalb County. v. Purported “Enlarged School District R-II, DeKalb County., Mo.,” residents of a school district filed suit seeking a declaratory judgment that a new school district was invalidly formed and, therefore, the previous school districts still existed.[29] The court approved the dismissal of the petition and stated that “‘a declaratory judgment action is not available to the individual plaintiffs who are residents, patrons and taxpayers of the reorganized district’”[30] because individuals necessarily “‘are only indirectly affected by whether a public or municipal corporation has a de jure existence.’”[31]

According to the court, public policy does not permit suits by individuals because stability and certainty are important in this area of law and there could be serious consequences if individuals, who have no real interest in the matter, could call into question the existence of a municipality.[32]

In 1967, the Supreme Court of Missouri reaffirmed the rule that an individual cannot bring a declaratory judgment action in order to challenge the validity of a school district boundary.[33] However, the court recognized that the holding was not dispositive of whether the district could bring such a suit itself.[34] In Walker Reorganized School District R-4 v. Flint, the court held that the public policy reasons for prohibiting individuals from bringing such suits do not apply to suits brought by public school districts.[35] The school districts were permitted to bring a declaratory judgment action because their interests were directly affected by the boundary dispute.[36]

According to the Supreme Court of Missouri, a directly affected municipality might be left without a remedy if the law forced it to depend solely on the discretion of the attorney general or county prosecutor.[37] This rule avoids multiplicity of suits and spurious claims in the context of individual litigants, but such reasoning is not applicable to municipalities because they have “a direct and vital interest in determining [their] own boundaries.”[38] Therefore, while a quo warranto action brought by the attorney general or prosecuting attorney is proper when determining a boundary dispute, a declaratory judgment action brought directly by the municipality itself is also proper.[39]

C. Statute of Limitations

O’Fallon’s “motion to dismiss . . . also raised statute of limitations and laches defenses.”[40] Since the trial court did not state the reasons for dismissal, the Supreme Court of Missouri could not determine the grounds on which the dismissal was based.[41] The court found that “[a]llegations based on the statute of limitations or laches are in the nature of affirmative defenses and, as such, usually are raised in the answer.”[42] In this case, O’Fallon filed a motion to dismiss instead of an answer.[43] Therefore, the court could “look only to the petition to determine whether dismissal was proper based on laches or the statute of limitations.”[44] On its face, the petition did not show that the action was barred by the statute of limitations or laches.[45] Therefore, dismissal on those grounds would have been in error.[46]

III. Comment

In Lake Saint Louis, the importance of public policy cannot be understated. Public policy prohibits individuals from filing suit in declaratory judgment actions to determine the boundaries of municipalities and other public corporations.[47] The Supreme Court of Missouri based most of its analysis on the inapplicability of the aforementioned policy justification to suits filed by the municipalities themselves.[48] Individuals are not allowed to file quo warranto actions, so it makes sense that they should not be allowed to file declaratory judgment actions to accomplish the same purpose.[49] Lastly, the court made it clear that municipalities and other public corporations are the interested parties who are directly affected by these disputes.[50] However, the discretion afforded to the attorney general and prosecuting attorneys to file quo warranto actions has the potential to deprive municipalities of the enforcement of their rights. Lake Saint Louis insures that municipalities and other public corporations have recourse to protect their physical boundaries.

- Drew Weber

[1] 324 S.W.3d 756 (Mo. 2010) (en banc).
[2] Id. at 758.
[3] Id.
[4] Id.
[5] Id. at 758-59.
[6] Id. at 759.
[7] Id. at 758-59. According to Black’s Law Dictionary, a writ of quo warranto is “[a] common-law writ used to inquire into the authority by which a public office is held or a franchise is claimed” or “[a]n action by which the state seeks to revoke a corporation’s charter.”
[8] Id. at 759.
[9] Id.
[10] Id. at 758.
[11] Id. at 759.
[12] Id.
[13] Id.
[14] Id. at 761.
[15] Id.
[16] Id. at 762.
[17] Id. at 764.
[18] Id.
[19] Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. 1993) (en banc).
[20] Id.
[21] Lake St. Louis, 324 S.W.3d. at 759.
[22] Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. 2008) (en banc).
[23] Brennan By and Through Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo. App. 1997).
[24] Lake St. Louis, 324 S.W.3d. at 759.
[25] Id.
[26] State ex inf. Graham v. Hurley, 540 S.W.2d 20, 22 (Mo. 1976) (en banc).
[27] Lake St. Louis, 324 S.W.3d. at 760.
[28] Id.
[29] Id. (citing Spiking School District No. 71, DeKalb County v. Purported “Enlarged School District R-II, DeKalb County., MO.,” 245 S.W.2d 13 (Mo. 1952) (en banc).
[30] Id. (quoting Spiking School District, 245 S.W.2d at 21).
[31] Id. (quoting Spiking School District, 245 S.W.2d at 21).
[32] Lake St. Louis, 324 S.W.3d at 760.
[33] Id.
[34] Id.
[35] Id. at 762 (citing Walker Reorganized School District R-4 v. Flint et. Al., 303 S.W.2d 200, 205-06 (Mo. App. 1957)).
[36] Id.
[37] Id. at 763.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id. at 764 (citing Lynch v. Lynch, 260 S.W.3d 834, 837 (Mo. 2008) (en banc)).
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Spiking School District No. 71, DeKalb County v. Purported “Enlarged School District R-II, DeKalb County., Mo.,” 245 S.W.2d 13, 21 (Mo. 1952) (en banc).
[48] See Lake St. Louis, 324 S.W.3d at 759-63.
[49] See Id. at 760.
[50] Id. at 761.

Deck v. Teasley[1]

2010-10-26T19:14:00.001-05:00

Opinion handed down Oct. 26, 2010
Link to Mo. Sup. Ct. Opinion

In Deck v. Teasley, the Supreme Court of Missouri reviewed an action arising out of a traffic accident. After interpreting Missouri Revised Statutes section 490.715.5, the circuit court limited the plaintiff’s evidence of medical damages to the amount of money actually paid to the providers by Medicare coverage, supplemental insurance, and the plaintiff. The Supreme Court of Missouri held that section 490.715.5 supplies a rebuttable presumption that the dollar amount paid to satisfy the medical providers is the proper value of medical treatment when determining damages. The court found that the plaintiff had properly rebutted this presumption by presenting sufficient evidence that the amount billed was the actual value of her treatment. Additionally, the court held that testimony about possible future medical treatment, including surgery, is relevant and admissible, even if such treatment is not reasonably certain to occur at the time of trial.

I. Facts and Holding

In May 2003, the defendant in this action, Delmar Teasley, caused a multi-vehicle collision that involved the plaintiff, Edith Deck.[2] As a result of the collision Ms. Deck suffered injuries that required surgery, physical therapy, and follow-up medical care.[3] Her treatment resulted in bills in the amount of $27,991.30.[4] However, the amount actually paid to the providers by Medicare coverage, supplemental insurance, and Ms. Deck to satisfy the debt was only $9,904.28.[5]

Missouri Revised Statutes section 490.715.5 was amended “in 2005 to limit the evidence litigants could introduce regarding the value of medical treatment rendered.”[6] The amendment created a rebuttable presumption that the dollar amount actually paid to satisfy the debts owed to medical providers by a plaintiff are in fact the value of the medical treatment provided.[7]

The defense filed a pre-trial motion asserting that the medical damages presented to the jury should be limited to the $9,904.28 that was actually paid to the health care providers.[8] During a hearing on the motion, the plaintiff called three witnesses to testify about the correct value of the care received by Ms. Deck.[9] All three witnesses testified that the amount billed, instead of the amount paid, is the best indication of the value of the medical services received by the plaintiff.[10] After hearing the evidence offered by Ms. Deck, the circuit court found that the presumption in section 490.715 had not been sufficiently rebutted.[11] Accordingly, the court did not allow Ms. Deck to present evidence of the total amount billed and limited the medical damage evidence to the amount paid to the providers.[12] The jury found in favor of Ms. Deck and determined that her damages were $42,500.[13]

II. Legal Background

A. Missouri Revised Statutes Section 490.715.5

Section 490.715 codifies the collateral source rule, which prohibits a tortfeasor from reducing her liability by proving that the plaintiff received payments from a collateral source.[14] Subsection 5 of section 490.715 “provides that evidence of the dollar amount necessary to satisfy the financial obligation to health care providers is admissible at trial and creates the rebuttable presumption that such amount represents the value of the medical treatment rendered.”[15] However, if any party files a motion, the court may consider the admissibility of alternative evidence, such as medical bills, actual payment for treatment, or an estimated remainder to be paid.[16]

The court noted that “[a] presumption places the burden of producing substantial evidence to rebut the presumed fact on the party against whom the presumption operates.”[17] When a party produces substantial evidence against the presumed fact, the case proceeds as if no presumption existed.[18] However, the party entitled to the presumption is still able to present evidence that supports the presumption in an effort to persuade the fact finder.[19]

During the hearing on the value of medical treatment received, three witnesses testified on behalf of Ms. Deck, stating that the amount billed was in fact the correct value of the medical services provided.[20] One of the witnesses testified that “the amount billed by a health care provider is a better indicator of the value of the goods and services than the amount that Medicare reimburses” because the amount reimbursed does not cover the provider’s cost of business.[21] The Supreme Court of Missouri concluded that the evidence presented by Ms. Deck was substantial evidence that the amount billed was probative of the value of her treatment and the presumption in section 490.715.5 had been properly rebutted.[22]

The court did briefly discuss Mr. Teasley’s point that section 490.715 was amended to prevent windfalls to plaintiffs in personal injury cases.[23] However, that argument fails to consider the fact that the statute, as enacted, created only a rebuttable presumption that the amount paid to satisfy the obligation was the value of the medical treatment.[24] The court noted that the phrase “rebuttable presumption” conforms with the notion that the measure of damages is the “value of services rendered” and not necessarily the reimbursement amounts paid.[25]

In a footnote, the court pointed out that the legislature attempted to make unpaid medical bills inadmissible.[26] However, that attempt was unsuccessful, and the “rebuttable presumption” language was inserted in the final version of the bill.[27] The court construed this language to mean that a party is now able to introduce evidence that the value of services is higher than the amount paid to healthcare providers.[28]

The court held that the lower court was in error when, instead of determining whether substantial evidence had been presented, it weighed the evidence presented by both parties to determine the value of the medical treatment.[29] The court acknowledged that the language in section 490.715.5(2) that “the court may determine . . . the value of the medical treatment rendered” could be interpreted to allow the trial judge to make the determination of the value of medical treatment.[30] However, this interpretation is not “supported by a full reading of section 490.715.5, because the creation of a rebuttable presumption indicates that, if the presumption is rebutted, the jury would be presented evidence as though no presumption existed.”[31] The court determined that excluding the evidence of the amount billed to Ms. Deck was prejudicial and, therefore, she was entitled to a new trial on damages.[32]

B. Cost of Future Medical Treatment

Ms. Deck also argued that the trial court erred by not allowing expert testimony relevant to future medical expenses.[33] The court discussed the relevant law; however, it did not decide the issue because the case was remanded on the issue of damages.[34] Ms. Deck wanted to offer the testimony of a doctor who would testify that another MRI and future surgery might be necessary.[35] The trial court excluded the testimony because the doctor did not testify “to a medical degree of certainty that surgery would be needed.”[36]

In Swartz v. Gale Webb Transportation Company, the court stated that testimony about possible future medical treatment is admissible “for the purpose of establishing the nature and extent of the plaintiff’s present injuries.”[37] The court stated that plaintiffs are only entitled to recover for future injuries if the injury is reasonably certain to occur in the future.[38] However, expert testimony regarding the possibility of future medical treatment is admissible to help the jury determine the extent and nature of a plaintiff’s current injuries, even if the future treatment may not occur.[39]

III. Comment

Deck v. Teasley prevents section 490.715 from having its intended effect of limiting medical damages to amounts paid or reimbursed to the service providers. When creating a “rebuttable presumption” the legislature likely intended that plaintiffs are entitled to only recover monies that were actually paid on their behalf. Allowing plaintiffs to receive the money billed allows them to recover considerably more money than what was paid. Deck has essentially established that section 490.715 is a low hurdle for plaintiffs to overcome in order to recover the amount billed for their treatment.[40]

After the decision in Deck, the ball is back in the legislature’s court.[41] If it truly intended to limit plaintiffs’ recovery to the amount paid it will need to pass legislation with stronger language than a “rebuttable presumption.” With this decision, the amended statute’s impact on personal injury cases will be next to nothing. As in Deck, medical providers are likely to testify that their reimbursement rates do not represent the value of their services.[42] The lower courts are now on notice that, if they choose to limit medical damages to the amount paid under section 490.715 based on testimony that the amount billed is a better indicator of the value of medical services provided, they will likely face automatic reversal.

- Lawrence Hall

[1] 322 S.W.3d 536 (Mo. 2010) (en banc).
[2] Id. at 537.
[3] Id.
[4] Id.
[5] Id.
[6] Id. See also Mo. Rev. Stat. § 490.715 (2009).
[7] Id. at 537-38.
[8] Id. at 537.
[9] Id. at 538.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. See also Mo. Rev. Stat. § 490.715.5 (2010)
[15] Id. at 539. See also Mo. Rev. Stat. § 490.715.5 (2010).
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 540
[21] Id.
[22] Id. at 541.
[23] Id.
[24] Id.
[25] Id.
[26] Id. n.2.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at 541-42.
[31] Id. at 541.
[32] Id. at 542.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] 215 S.W.3d 127 (Mo. 2007) (en banc).
[38] Deck, 322 S.W.3d at 543.
[39] Id.
[40] Id. at 536.
[41] Id.
[42] Id. at 540.

State ex rel. Kansas City Power & Light Co. v. McBeth[1]

2010-09-21T19:07:00.001-05:00

Opinion handed down September 21, 2010
Link to Mo. Sup. Ct. Opinion

Missouri imposes an ad valorem tax on electric utility facilities, requiring each company to “file a report with the county assessor describing its local property situated in the county and the ‘true value in money thereof.’”[2] Once the assessor receives that report, she certifies its accuracy, values the property, and sends her report to the state tax commission.[3] This case involved a dispute over the assessor’s valuation of Kansas City Power & Light Company’s two Platte County facilities.[4] A local school district and two of its school board members (collectively “West Platte”) brought suit against the Platte County assessor, arguing that she violated state law by undervaluing KCPL’s property, leading to a loss of revenue to the district.[5] After West Platte filed suit, KCPL intervened and filed motions to dismiss, which were denied by the Honorable Gerald McBeth of the Vernon County Circuit Court.[6] As a result, KCPL petitioned the Court of Appeals “to prohibit [Judge McBeth’s] purported exercise of jurisdiction over the lawsuit,” but the petition was denied.[7] The Supreme Court of Missouri reversed, instituting preliminary and permanent writs of prohibition and holding that “KCPL and the assessor’s motions to dismiss should have been granted” because West Platte lacked standing to challenge KCPL’s assessments and the assessor did not violate any statutory requirements.[8]

I. Facts and Holding

This case involves the valuation of two KCPL electricity generating plants located in Platte County, known as Iatan I and Iatan II.[9] In 2006, KCPL began modifying Iatan I to comply with environmental standards.[10] KCPL was required to cease Iatan I’s operation and take the facility offline from fall 2008 to spring 2009 after “a malfunction occurred when KCPL attempted to place the plant on line.”[11] Also in 2006, KCPL began construction on Iatan II, which was scheduled to begin service in fall 2010.[12]

During these projects, KCPL properly filed taxation reports with the county assessor, who “estimated the [facilities’] market value at approximately 50 percent of the sum total of the original construction costs reported by KCPL.”[13] In addition, the assessor classified Iatan I as distributable property under the law, statutorily defined as “‘personal property which is used directly in the generation and distribution of electric power.’”[14] This categorization was crucial to the valuation, because, had the plant been deemed local property, it would have been subject to the levy of the school district in which it was located and assessed by the county.[15] Instead, Iatan I was “assessed by the state tax commission and [was] taxed [by the local school district] according to the average rates of all the school districts within the county.”[16]

Seeking declaratory judgment and a writ of mandamus, West Platte brought suit against the Platte County assessor, alleging two main injustices.[17] West Platte argued that the assessor violated her ministerial duty by, first, “failing to assess KCPL’s reported construction costs as the [full] ‘true value in money’” and by, second, classifying the Iatan I property as distributable.[18] West Platte claimed that the school district was hurt by the lost tax revenue as a result of these indiscretions.[19] After KCPL intervened and brought motions to dismiss, the circuit court overruled the motions.[20] KCPL then sought the writ of prohibition at issue in the current case.[21]

KCPL put forth three arguments in support of their petitions for writ of prohibition.[22] The company argued that (1) West Platte lacked standing to challenge the assessment of KCPL’s property, (2) the Platte County assessor had no ministerial duty to value the construction costs according to their reported costs, and (3) the Platte County assessor had no ministerial duty to classify the Iatan I as “local property.”[23] The court addressed KCPL’s three arguments in kind, ultimately agreeing with the company.[24]

First, the court analyzed West Platte’s standing to bring claims for declaratory judgment and mandamus.[25] Because Missouri law clearly supported the rule that neither individual taxpayers, nor school districts could challenge a third party’s past tax assessment, the court rejected West Platte’s claim for declaratory judgment on KCPL’s assessments prior to 2009.[26] Other the other hand, the court held that, under Missouri law, West Platte did have standing to seek “a declaration of their rights and the assessor’s duties under the utility taxation statutes” because the parties had a protectable interest – school district revenue – that would be adversely affected if improper interpretation of the law persisted.[27]

Second, in analyzing West Platte’s standing to seek a writ of mandamus, the court similarly held that the district had standing, provided that the assessor “has a ministerial duty to value and assess the property in the manner . . . allege[d] [by West Platte].”[28] The court then reviewed KCPL’s argument that the Platte County assessor was under no duty to assess Iatan I by “true value in money” of the original cost.[29] Finding that the county assessor’s duty to value property is discretionary under Missouri statute, the court held that the Platte County assessor was not obligated by ministerial duty to follow West Platte’s interpretation of the law and, thus, that West Platte did not have standing in the mandamus action.[30]

Just as the county assessor did not have a ministerial responsibility to value KCPL’s property in a certain way, the court also held that she did not err in classifying Iatan I as distributable property under the law.[31] This last determination solidified the court’s conclusion that West Platte lacked standing to bring any suit against the Platte County assessor except for the declaratory judgment action.[32] Upon finding that the assessor “did not violate any definite, ministerial duty,” the court held that the only viable remedy for West Platte was to encourage the election of a new county assessor.[33]

II. Legal Background

Missouri court cases concerning assessment challenges have firmly established that third parties, including individuals, lack standing to challenge other taxpayers’ assessments.[34] As the Supreme Court of Missouri has noted in the past, “[t]he primary basis for taxpayer suits arises from the need to ensure that government officials conform to the law.”[35] In Kansas City Power & Light, the court held that the county assessor complied with the taxation statutes at issue, which meant that West Platte did not have standing to ensure public officials “conform to the law.”[36] Further, school districts in Missouri have long been unable to challenge valuations of property within their district because the law assumes that “public officials would adequately protect the interest of the state and its subdivisions.”[37] Relying on this precedent, the Supreme Court of Missouri concluded that West Platte lacked standing for declaratory judgment on the past valuations of KCPL property.[38]

The ability to bring a claim for declaratory judgment for the purpose of establishing rights, however, did exist for West Platte.[39] Missouri statutes explicitly address declaratory actions and allow individuals affected by a statute to bring a claim to “‘terminate the controversy or remove an uncertainty.’”[40] As this court reasoned, the individuals must also “have a legally protectable interest at stake in the outcome of the litigation,” which means that the individual must be “directly and adversely affected by the action in question.”[41] The Supreme Court of Missouri has already held that school districts in danger of losing funding have standing to clarify the statute at issue through an action for declaratory judgment.[42] This danger extends to individual taxpayers within the school district, as well.[43]

The standard for assessing West Platte’s standing for their mandamus action is much different than that of declaratory judgment under Missouri law.[44] Indeed, the court relied on its past precedent that, “where the duty sought to be enforced is a simple, definite, ministerial duty imposed by law,” a plaintiff generally will have standing to seek mandamus.[45] However, to establish whether a ministerial duty existed, the court was required to engage in statutory analysis, aided by case law.[46]

Public officials not only perform ministerial duties “‘in obedience to the mandate of legal authority, without regard to [their] own judgment’” but also discretionary duties that require officials to exercise their interpretation of law and reasoning.[47] In this case, the court looked to the job description of the county assessor, finding that she was required to assess KCPL’s property at a percentage of its “true value in money,” defined in case law as “an estimate of the fair market value on the valuation date.”[48]

After evaluating factually how the county assessor may conduct her assessment and determining that the job was clearly not ministerial, the court supported its finding by looking to surrounding statutes and regulations.[49] Missouri law requires county assessors to assess property at a value that they “believe[] to be the actual cash value” and that they derive the “true value in money”[50] to report to the tax commission.[51] Further, the state tax commission requires the assessor to estimate the value of a property by relying on his or her discretion, without providing specific guidance.[52]

The court also evaluated the county assessor’s “ministerial duty to assess a temporarily offline power plant as ‘local property.’”[53] Because Missouri law treats local and distributable property differently for taxation purposes, the court found it important to expound on the distinction, holding that the “dispositive factor for [classifying property as local or distributable] is the purpose for which the property at issue is held, not its operational status,” and thus that the Iatan I plant fit within the definition of local property.[54] Because of the assessor’s discretionary power, she was under no obligation to value the Iatan property in any specific manner, including by full acceptance of KCPL’s report or designation of local property.[55] As a result of the lack of ministerial duty, West Platte did not have standing to seek a mandamus action against the assessor.[56]

III. Comment

The notion that taxpayer standing does not exist in cases involving other taxpayer’s assessments appears settled in Missouri;[57] however, the doctrine of standing, in its simplest form, only “requires that a party seeking relief has some legally protectable interest in the litigation so as to be affected directly and adversely by its outcome, ‘even if that interest is attenuated, slight or remote.’”[58] In Kansas City Power & Light, West Platte school district and two individual taxpayers alleged that the county assessor had undervalued KCPL property located within the school district, seeking declaratory judgment of the assessor’s duty under the law and a writ of mandamus prohibiting her from discounting the value of KCPL property and defining temporarily dormant electricity plants as “distributable property.”[59]

While the court did determine that West Platte had standing for a declaratory judgment because the district and taxpayers had a legal and protectable interest in supporting school funding, it added a second requirement for mandamus – that the assessor perform ministerial duties – that West Platte did not meet because the court found the assessor’s duties to be discretionary.[60] Though the ministerial duty condition for standing is well-established in Missouri,[61] it is important for the court to consider the implications of denying standing in this case. Allowing West Platte to challenge the assessor’s valuation would potentially increase revenue to West Platte, a small rural district with just over 600 students.[62] In a district that relies primarily on local money to educate its students, the Platte County assessor’s fifty-percent reduction of KCPL’s property for taxation purposes has a major effect on funding.[63]

Despite the law’s firm commitment to the idea that school district interests would be duly represented by the state,[64] the court’s decision in Kansas City Power & Light demonstrates that its hands are tied in protecting school districts in the event that a discretionary action harms them.[65] The court advises the school district and its taxpayers to make an effort to oust the allegedly problematic county assessor at the next election.[66] Such counsel, though reflective of the state’s precedent rejecting standing in such matters, does little to help support schools in Missouri, which are institutions so important that they are codified in the state constitution.[67]

-Brianna L. Lennon

[1] No. SC90693, 2010 WL 4148944 (Mo. 2010) (en banc).
[2] Id. at *1 (citing Mo. Rev. Stat. § 151.110.1).
[3] Mo. Rev. Stat. § 151.110.2.
[4] Kansas City Power & Light, 2010 WL 4148944 at *1.
[5] Id. at *3-4; Brief of Relator Kansas City Power & Light at *2.
[6] Brief of Relator Kansas City Power & Light at *5.
[7] Id.
[8] Kansas City Power & Light, 2010 WL 4148944 at *6.
[9] Id. at *1.
[10] Id.
[11] Brief of Respondent at *9.
[12] Kansas City Power & Light, 2010 WL 4148944 at *1.
[13] Id.
[14] Id. at *5 (quoting Mo. Rev. Stat. § 153.034.1). By comparison, local property is defined as property “‘not used directly in the generation and distribution of power . . . .’” Id. (quoting Mo. Rev. Stat. § 153.034.2).
[15] Id. (citing Sw. Bell Tel. Co. v. Bond, 595 S.W.2d 365, 367 (Mo. App. W.D. 1980)).
[16] Id.
[17] Id. at *1.
[18] Id.
[19] Id.
[20] Id. at *2.
[21] Id.
[22] Id.
[23] Id.
[24] Id. at *2-6.
[25] Id. at *2-3.
[26] Id. at *3.
[27] Id. The court presumably refers to two Missouri statutes. First, Mo. Rev. Stat. § 137.115 requires the county assessor to assess property from the public utility’s report based on a percentage of the property’s “true value in money.” Id. at *4. Second, Mo. Rev. Stat. § 53.030 defines the general job description of the county assessor. Id. at *5.
[28] Id. at *4.
[29] Id.
[30] Id. at *5.
[31] Id. at *6.
[32] Id. To satisfy the declaratory judgment, the court declared that the “county assessor has discretion to exercise independent judgment when valuing and assessing property under” Missouri law. Id.
[33] Id.
[34] See Comm. for Educ. Equality v. State, 294 S.W.3d 477, 485-86 (Mo. 2009) (en banc) (holding that individual taxpayers are not personally injured by others’ assessments); W.R. Grace & Co. v. Hughlett, 729 S.W.2d 203, 206-7 (Mo. 1987) (en banc).
[35] E. Mo. Laborers Dist. Council v. St. Louis County, 781 S.W.2d 43, 46 (Mo. 1989) (en banc).
[36] Kansas City Power & Light, 2010 WL 4148944 at *6.
[37] State ex rel. St. Francois County Sch. Dist. R-III v. Lalumondier, 518 S.W.2d 638, 643 (1975); see also State ex rel. Brentwood Sch. Dist. v. State Tax Comm’n, 589 S.W.2d 613, 614 (Mo. 1979) (en banc).
[38] Kansas City Power & Light, 2010 WL 4148944 at *6.
[39] Id.
[40] Id. at *3 (quoting Mo. Rev. Stat. § 527.050); see also Mo. Rev. Stat. § 527.020 (describing who can bring a declaratory judgment claim); Mo. Rev. Stat. § 527.120 (stating that declaratory judgment statutes must “be liberally construed”).
[41] Kansas City Power & Light, 2010 WL 4148944 at *3 (citing Ste. Genevieve Sch. Dist. R-II v. Bd. of Aldermen, 66 S.W.3d 6, 10 (Mo. 2002) (en banc).
[42] State ex rel. Sch. Dist. of Independence v. Jones, 653 S.W.2d 178, 189 (Mo. 1983) (en banc). It is important to note, however, that school districts are precluded from challenging “alleged underassessments of private property” because the legislature only allowed appeals from the property owner himself. Id. at 188-89.
[43] Ste. Genevieve Sch. Dist. R-II, 66 S.W.3d at 10-11.
[44] Kansas City Power & Light, 2010 WL 4148944 at *4.
[45] Id. (citing State ex rel. City of Cabool v. Texas County Bd. of Equalization, 850 S.W.2d 102, 105 (Mo. 1993) (en banc)).
[46] Id. at *2-6.
[47] Id. at *4 (quoting Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo. 1984) (en banc)).
[48] Id. (citing Hermel, Inc. v. State Tax Comm’n, 564 S.W.2d 888, 897 (Mo. 1978) (en banc)); see also Mo. Rev. Stat. § 137.115 (Supp. 2009).
[49] Id. at *4-5.
[50] Id. at *5 (citing Hermel, Inc. v. State Tax Comm’n, 564 S.W.2d 888, 897 (Mo. 1978) (en banc) (“Although ‘true value in money’ is not defined by statute, Missouri case law defines ‘true value’ as an estimate of the fair market value on the valuation date.”)
[51] Id. (quoting Mo. Rev. Stat. §§ 53.030, 151.110.3).
[52] Id. (citing 12 CSR 30-2.011(1)).
[53] Id.
[54] Id. at *6.
[55] Id.
[56] Id.
[57] Comm. for Educ. Equality v. State, 294 S.W.3d 477, 485-86 (Mo. 2009) (en banc).
[58] Id. at 484 (citing Mo. State Med. Ass’n v State, 256 S.W.3d 85, 87 (Mo. 2008) (en banc)).
[59] Kansas City Power & Light, 2010 WL 4148944 at *1-2.
[60] Id. at *4-5.
[61] State ex rel. City of Cabool v. Texas County Bd. of Equalization, 850 S.W.2d 102, 106 (Mo. 1993) (en banc) (citing State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. 1992) (en banc)).
[62] West Platte Co. R-II Finance Report. Nov. 2, 2009. Missouri Department of Elementary and Secondary Education, available at http://dese.mo.gov/planning/profile/SF083002.html.
[63] Id. As compared to the state average of 58.4% of district operating funds coming from local revenue, 81.9% of West Platte’s budget was comprised of local money in 2009. Id.
[64] State ex rel. City of Cabool, 850 S.W.2d at 104 (citing Lalumondier, 518 S.W.2d at 643)).
[65] Kansas City Power & Light, 2010 WL 4148944 at *6.
[66] Id.
[67] See Mo. Const. Art. IX.

Westerfeld v. Independent Processing, LLC[1]

2010-09-20T22:43:00.001-05:00

Opinion handed down September 20, 2010.
Link to Eighth Circuit Opinion

The Eighth Circuit Court of Appeals examined the meaning and applicability of the “local-controversy exception” to the Class Action Fairness Act of 2005. In particular, the court said that, for the purposes of the “significant defendant” provision of the exception, a court must consider a class action suit as a whole, instead of separately examining significant defendant status for each count, as the district court did. Therefore, the Eighth Circuit vacated the district court’s judgment and remanded the case for further consideration.

I. Facts and Holding

Ms. Westerfeld, a Missouri resident, filed a class action suit in Missouri state court against Independent Processing, LLC (“Independent”), a Missouri company, and Provident Funding Associates, LP (“Provident”), a California limited partnership.[2] Independent processes residential mortgage documents, and Provident provides financing for residential mortgages.[3]

At trial, Ms. Westerfeld testified that “when Independent and Provident charged her and other Missouri residents a ‘broker processing fee’ and an ‘administrative fee,’ respectively, in residential mortgage financing transactions, the two entities engaged in the unauthorized practice of law and violated the Missouri Merchandising Practices Act.”[4] Pursuant to the Class Action Fairness Act of 2005 (CAFA), Provident removed the case to the United States District Court for the Eastern District of Missouri.[5] Ms. Westerfeld moved to remand the case based on the “local-controversy exception” to CAFA.[6] The district court granted Ms. Westerfeld’s motion and remanded the case to the Circuit Court of St. Louis County.[7]

Westerfeld asserted two claims against Independent based on Missouri state law and asserted the same two claims against Provident on behalf of two separate plaintiff classes.[8] In addition, she sought certification of a separate plaintiff class against each defendant.[9] In her motion to remand, Westerfeld argued that the local-controversy exception prohibited the district court from exercising jurisdiction over the action.[10]

Provident argued that the local-controversy exception was inapplicable because Independent did not qualify as a “significant defendant” under CAFA.[11] To support its position, Provident submitted evidence that “Independent provided services in connection with only 56 loans in Missouri,” while Provident, the out-of-state defendant, “originated 3,894 loans in Missouri.”[12] In addition, Provident alleged that Independent charged $16,800 in contested fees, while Provident charged $2.7 million.[13]

To determine if Independent was a significant defendant, Provident urged the district court to consider “the class action as a whole” and not consider “the claims on a class-by-class basis.”[14] According to this analysis, Ms. Westerfeld did not seek significant relief from Independent because Independent participated in fewer than 1.5% of the loans and accumulated only 0.6% of the fees.[15] Therefore, Provident argued that “Westerfeld was not seeking significant relief, Independent’s conduct did not form a significant basis for Westerfeld’s claims, Independent did not qualify as a significant defendant, and thus the local-controversy exception did not apply to defeat federal jurisdiction.”[16]

The district court rejected Provident’s arguments because “Westerfeld filed her claims against Independent ‘as an individual class,’ [so] Independent was necessarily a significant defendant with respect to the claims asserted against it.”[17] The district court analyzed the issue separately for each class and concluded that Independent was a significant defendant with respect to Counts I and II, because each count “defined a class and asserted claims against Independent alone.”[18]

Provident appealed the order of the district court and the Eighth Circuit granted the appeal.[19] The Eighth Circuit reviewed the district court’s interpretation of CAFA de novo, vacated the district court’s judgment, and remanded the case for further consideration consistent with its opinion.[20]

II. Legal Background

CAFA provides for “broad federal jurisdiction over class actions and establishes narrow exceptions to such jurisdiction.”[21] Federal courts have jurisdiction over class actions if the amount in controversy exceeds $5,000,000, “any class member and any defendant are citizens of different states,” and the class contains at least 100 members.[22]

Under CAFA, one of the exceptions to federal jurisdiction is the “local-controversy exception.”[23] Pursuant to this exception, a district court must not exercise jurisdiction over a class action if “more than two-thirds of the class members in the aggregate are citizens of the state in which the action was originally filed, at least one defendant ‘from whom significant relief is sought by members of the plaintiff class’ and ‘whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class’ is a citizen of the state in which the class action was originally filed,” the principal injuries were suffered in the forum state, and no other class action based on similar facts was filed in the three years prior to the current class action.[24]

CAFA did not change the general rule that the removing party bears the burden of establishing jurisdiction.[25] Once the initial jurisdictional requirements are met by the removing party, the burden of establishing a jurisdictional exception to CAFA shifts to the party seeking remand.[26] As a result, Provident bore the burden of proving whether CAFA’s jurisdictional requirements were met.[27] The district court stated that any doubt about the application of the local-controversy exception is resolved in favor of remand.[28] According to the Eighth Circuit, this was a misstatement of the law.[29]

When Provident satisfied the “basic jurisdictional requirements” of CAFA, the burden shifted to Westerfeld to establish that the local-controversy exception applied.[30] By resolving doubt concerning application of the exception in favor of remand, the district court resolved doubt in favor of Westerfeld, even though Westerfeld had the burden of establishing that the exception applied.[31] According to the Eighth Circuit, “the party bearing the burden of proof is not entitled to the benefit of the doubt.”[32] Therefore, on remand, the Eighth Circuit directed the district court to resolve any doubt concerning the applicability of the local-controversy exception against Westerfeld.[33]

Provident then argued that the district court erroneously concluded that the local-controversy exception precluded the district court from exercising jurisdiction over the class action.[34] According to the Eighth Circuit, the exception mandates that an in-state defendant must be a significant defendant, one “‘from whom significant relief is sought by members of the plaintiff class’ and one ‘whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class.’”[35]

When interpreting a statute, the Eighth Circuit said that federal courts must “‘interpret the words of the[ ] statute[ ] in light of the purposes Congress sought to serve.’”[36] A court must not “interpret[ ] a statute in a manner that renders any section of the statute superfluous or fails to give effect to all of the words used by Congress.”[37]

CAFA defines “class” as “all of the class members in a class action.”[38] “[T]herefore, ‘the plaintiff class’…and ‘the proposed plaintiff class’…include all of the class members in the class action as a whole.”[39] As a result, when determining if an in-state defendant is a significant defendant, courts must consider the claims of all the class members instead of considering the claims on a class-by-class basis.[40]

The Eighth Circuit adopted the reasoning of Kaufman v. Allstate N.J. Ins. Co., a case from the Third Circuit, and said, “Whether the [in-state] defendant’s alleged conduct is significant cannot be decided without comparing it to the alleged conduct of all the Defendants . . . . The local defendant’s alleged conduct must be an important ground for the asserted claims in view of the alleged conduct of all the Defendants.”[41] Accordingly, the Eighth Circuit found that the district court’s construction of the statute strips the provision of substantive meaning because determining an in-state defendant’s significance on a class-by-class basis will always result in a finding that the in-state defendant is significant.[42] The district court’s reading of the exception allows class-action plaintiffs to avoid federal jurisdiction “simply by pleading their claims against an in-state defendant as separate counts on behalf of a separate class.”[43]

The Eighth Circuit concluded that the district court erred in ruling that the local-controversy exception to CAFA precluded federal jurisdiction in this case.[44] On remand, the Eighth Circuit ordered the district court to “determine whether Independent is a significant defendant for purposes of the local-controversy exception by considering all the claims in the action and not by considering the claims on a class-by-class basis.”[45]

III. Comment

While not specifically mentioned in Westerfeld, the frequently repeated disdain for form over substance was seemingly on the mind of the Eighth Circuit judges. Westerfeld’s division of claims convinced the federal district court to remand the case back to state court.[46] However, this result was unappealing to the Eighth Circuit because, in enacting CAFA, Congress specified that the local-controversy exception was a narrow exception.[47] Since the same claims were asserted against each defendant,[48] the only reason for the separate suits was to invoke the local-controversy exception. The district court focused more on the form of the pleading than the substance of the issues. If Westerfeld were permitted to separate her claims as she did, then the local-controversy exception could become quite large. Hower, this decision ensures that the congressional intent in enacting CAFA is not hindered by such distinctions without a difference.

-Drew Weber

[1] 621 F.3d 819 (8th Cir. 2010).
[2] Id. at 821.
[3] Id.
[4] Id. (citing Mo. Rev. Stat. §§ 407.010-407.1500 (2000)).
[5] Westerfeld, 621 F.3d at 821.
[6] Id. See 28 U.S.C. § 1332(d)(4)(A) (2005).
[7] Westerfeld, 621 F.3d at 821-22.
[8] Id. at 823.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 823-24.
[13] Id. at 824.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id. at 822.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id. (quoting 28 U.S.C. § 1332(d)(4)(A) (2005)).
[25] Id.
[26] Id.
[27] Id. at 823.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id. (quoting 28 U.S.C. § 1332(d)(4)(A)(i)(II)(aa) & (bb) (2005)).
[36] Id. at 824. (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979)).
[37] Id. (citing Windsor on the River Assocs. v. Balcor Real Estate Fin., Inc., 7 F.3d 127, 130 (8th Cir. 1993)).
[38] Id. (quoting 28 U.S.C. § 1332(d)(1)(A) (2005)).
[39] Id.
[40] Id. at 824-25.
[41] Id. at 825 (quoting Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 157 (3d Cir. 2009)).
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] Id. at 823.

In re Aurora Dairy Corp. Organic Milk Marketing and Sales Practices Litigation[1]

2010-09-15T17:38:00.001-05:00

Opinion issued September 15, 2010
Link to Eighth Circuit Opinion

In a consolidated class action dispute regarding federal laws pertaining to certification of organically produced goods, the Eighth Circuit Court of Appeals held that (1) state laws that interfere with the federal certification process are subject to conflict preemption and (2) if preemption defeats the purpose of the Federal law, the state law claims are not preempted.

I. Facts and Holding

The Organic Foods Protection Act of 1990 (OFPA) is a federal statute that “establishes national standards for the sale and labeling of organically produced agricultural products, and creates a certification program through which agricultural producers become certified to produce organic products.”[2] The OFPA also has a process for accrediting “certifying agents” who conduct inspections and submit recommendations to the United States Department of Agriculture (USDA) pertaining to certification.[3] The OFPA provides the USDA with authority to promulgate regulations defining which agricultural products to label as organic.[4]

Aurora Dairy Corporation (Aurora) received certification from the certifying agent QAI, Inc. (QAI) to produce organic milk.[5] Aurora’s organic milk was sold to consumers at multiple retail stores owned by Costco, Safeway, Target, Wal-Mart, and Wild Oats Markets (the retailers) under the retailers’ store brands or Aurora’s “High Meadow” brand.[6]

Various plaintiffs filed class action lawsuits in federal court against Aurora, the retailers, and QAI on behalf of organic milk consumers “claiming violations of state law arising from Aurora’s alleged failure to comply with the OFPA and NOP,” and thus arguing that Aurora’s milk could not be properly labeled “organic.”[7] The federal courts consolidated the cases in the Eastern District of Missouri, and the district court granted the defendants’ motions to dismiss, “finding the OFPA preempted all of the class plaintiffs’ claims.”[8] An appeal to the Eighth Circuit followed.[9]

A. Preempted Claims

Because the certification process under the OFPA was part of a federal program aimed at establishing national standards for organic food and facilitating interstate commerce in organically produced food,[10] the court found that any claim that would “interfere with or second guess the certification process” was “an ‘obstacle to the accomplishment of congressional objectives’ of the OFPA.”[11]

Plaintiffs asserted that QAI should have revoked Aurora’s certifications because of the dairy’s alleged failure to comply with the OFPA and NOP.[12] Thus, any claim against QAI was preempted by the federal statute, because “it would be impossible . . . for QAI to comply with the OFPA and its regulations” regarding certification and still comply with any state laws concerning certification processes.[13]

Similarly, “claims that Aurora and the retailers sold milk as organic when in fact it was not organic are preempted because they conflict[ed] with the OFPA.”[14] The court found that the OFPA provided an enforcement mechanism and allowing state law enforcement of the federal regulations would diminish the consistency of the regulations.[15] This was especially significant considering the purpose of the OFPA, namely “to establish national standards governing the marketing of certain agricultural products as organically produced products.”[16]

B. Not Preempted Claims

The court found it “important to distinguish between state law challenges to the certification determination itself, which conflict with the OFPA, and state law challenges to the facts underlying the certification.”[17] Here, the court addressed the plaintiffs’ claims under state consumer protection, fraud, and tort law, which would not interfere with determinations of Aurora’s certification under the OFPA’s specific regulations.[18] The Eighth Circuit reversed the district court’s dismissal of the non-interfering state law claims since the resolution of these claims would not interfere with the OFPA and the purposes of the OFPA would not be furthered by preemption.[19] The court remanded the claims consisting of allegations of misrepresentation, deceptive trade practices, and deceptive advertising because such claims would “best be resolved in the first instance by the district court.”[20]

II. Legal Background

The authority for federal preemption is rooted in the Constitution’s proclamation that federal law “‘shall be the supreme Law of the Land.”[21] When federal preemption issues arise, the courts look to congressional purpose,[22] but presume that the “‘historic police powers of the States’” will retain primacy “‘unless [preemption] was the clear and manifest purpose of Congress.’”[23] Courts find preemptive intent by looking to “‘a statute’s express language or through its structure and purpose.’”[24] This provides for two types of federal preemption: express and implied.

“[W]hen Congress has made its intent known through explicit statutory language,” express preemption is easy to identify.[25] Implied preemption is not so simple and may exist as either field preemption or conflict preemption.[26] Field preemption is inferred where a scheme of federal regulation is “‘so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.’”[27] Conflict preemption occurs “‘where a party’s compliance with both federal and state law would be impossible or where state law would pose an obstacle to the accomplishment of congressional objectives.’”[28]

The district court and Eighth Circuit agreed that express preemption did not bar any of the class plaintiffs’ claims.[29] However, the courts disagreed as to whether the OFPA was sufficiently pervasive to infer that Congress intended to preempt the entire field.[30] The Eighth Circuit found no field preemption, in light of “the OFPA’s text and purpose, the narrowness of its express preemption provision, the presumption against preemption and the tradition of state regulation.”[31]

Finding no express or field preemption, the Eighth Circuit reviewed the district court determination that conflict preemption also barred the class plaintiffs’ claims.[32] Here, the court analyzed the congressional objective that the OFPA would “replace the patchwork of existing state regulations with a national standard defining organic food.”[33] All claims against QAI essentially challenged the certification process and were preempted because they would “stand in conflict with the OFPA.”[34] The claims attacking Aurora’s certification were similarly preempted,[35] but the “state law challenges to the facts underlying certification” were not.[36] This distinction is important, because it allows claims based on other conduct, such as misrepresentations in marketing, to remain.[37]

III. Comment

In re Aurora Dairy Corp. may come off as a non-controversial discussion of the correct application of federal preemption standards.[38] However, the Eight Circuit decision should be viewed as a significant win for the plaintiffs in this case and for consumers in general. If the Eighth Circuit had affirmed the district court decision, everyday consumers would have minimal, if any, recourse in court when producers employ deceptive advertising of “organic” produce.

This case is significant because, in the United States, the organic food and beverage industry has grown from $1 billion in 1990 to $24.8 billion in 2009.[39] Without an appropriate consumer-based check on the industry, the push to achieve market share might induce some companies to push the boundaries with their practices. However, the Eighth Circuit decision in In re Aurora Dairy Corp. made winners out of losers and left state consumer protection laws intact with respect to marketing of organically produced agricultural products.[40]

-Chris Dandurand

[1] 2010 U.S. App. LEXIS 19254 (8th Cir. Sept. 15, 2010).
[2] Id. at *13.
[3] Id.
[4] Id. The regulations are known as the National Organic Program (NOP). Id. (citing 7 C.F.R. pt. 205).
[5] 2010 U.S. App. LEXIS 19254 at *13.
[6] Id. at *13-14.
[7] Id. at *14. The National Organic Program (NOP) is a set of regulations promulgated by the USDA. This program defines which agricultural products qualify as organic. Id. at
[8] Id.
[9] Id.
[10] Id. Congress enacted the OFPA in order “‘(1) to establish national standards governing the marketing of certain agricultural products as organically produced products; (2) to assure consumers that organically produced products meet a consistent standard; and (3) to facilitate interstate commerce in fresh and processed food that is organically produced.’” Id. (quoting 7 U.S.C. § 6501).
[11] 2010 U.S. App. LEXIS 19254 at *35 (quoting Pet Quarters, Inc. v. Depository Trust & Cleaning Corp., 559 F.3d 772, 780 (8th Cir. 2009)).
[12] Id. at *36.
[13] Id.
[14] Id. at *38.
[15] Id. at *40.
[16] Id. at *40.
[17] Id. at *41-42.
[18] Id. at *45-46.
[19] Id. at *46-48.
[20] Id. at *47.
[21] Id. at *25 (quoting U.S. Const. art. VI, cl. 2).
[22] Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-86 (1996)).
[23] Id. at *26.
[24] Id. (quoting Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008)).
[25] English v. General Elec. Co., 496 U.S. 72, 79 (1990).
[26] Id.
[27] 2010 U.S. App. LEXIS 19254 at*29 (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992)).
[28] Id. at *32 (quoting Pet Quarters, Inc. v. Depository Trust & Cleaning Corp., 559 F.3d 772, 780 (8th Cir. 2009).
[29] Id. at *28. The OFPA did expressly preempt state certification laws, but this was not at issue in the case. Id. at *27-28.
[30] Id. at *29-30, *32.
[31] Id. at *32.
[32] Id.
[33] Id. at *33.
[34] Id. at *38.
[35] Id.
[36] Id. at *42. Preemption of the state consumer protection claims does not serve the purposes of OFPA and might actually “diminish consumer confidence that organic products meet consistent standards as consumers become aware” that meritorious state law claims are preempted simply because a certifying agent has not suspended certification. Id. at *46.
[37] Id. at *48.
[38] 2010 U.S. App. LEXIS 19254 (8th Cir. Sept. 15, 2010).
[39] See Industry Statistics and Projected Growth, Organic Trade Association, available at http://www.ota.com/organic/mt/business.html (last visited October 28, 2010).
[40] 2010 U.S. App. LEXIS 19254 (8th Cir. Sept. 15, 2010).

United States v. Miller[1]

2010-09-09T19:24:00.001-05:00

Opinion handed down September 9, 2010
Link to Eighth Circuit Opinion

The United States Court of Appeals for the Eighth Circuit reversed a conviction for felony possession of a firearm. The court found that the trial court had abused its discretion by allowing the prosecution to misstate the burden of proof needed to find the defendant guilty. The case was reversed and remanded.

I. Facts and Holding

Defendant Zachary Miller and another man attempted to exit a parking lot in a vehicle after they spotted the Kansas City police patrolling the high-crime area.[2] However, the defendants found their route blocked by an obstacle, and Miller fled on foot.[3] During the ensuing chase, Miller reached into his waistband and threw away an object.[4] Officer Smith stated that the item looked like a gun and sounded like “a piece of metal hitting the ground”[5] but acknowledged later that he didn’t know for a fact that “it was a gun.”[6] After Miller was apprehended, other officers arrived and found a rusty semi-automatic pistol[7] and magazine about 40 to 45 feet from where Smith said he had seen Miller toss the gun.[8]

Although police had left instructions that the gun should be tested for DNA and fingerprints, the police lab technician test-fired the weapon before testing it for either DNA or fingerprints.[9] The lab technician also did not wear gloves before handing the weapon.[10]

A. Trial Testimony

During the trial, Miller testified that he had bought a quarter-gram of cocaine and hid it in a metal smoking pipe that he had in his pocket.[11] When he noticed the police patrolling the area, he decided to run because he was on parole for drug possession and passing a bad check and was afraid of authorities because of his “parole status.”[12] Miller testified that he dropped a bag of marijuana during the chase and threw away the smoking pipe.[13] Police, however, did not find any drugs or smoking pipe in the area.[14] Miller also told police he did not possess or handle any gun, so neither his fingerprints nor DNA would be found on any firearm that was found in the area.[15]

A lab technician, who tested the gun for DNA, found at least four different genetic profiles, but none matched Miller’s.[16] The technician concluded that it was “probable” that if Miller had handled the weapon, his DNA would have been found.[17] However, another government expert testified that it was “possible” for Miller to handle the weapon without leaving any traces of DNA.[18]

B. Trial Maneuvering

During the trial, Miller attempted to demonstrate that police were biased against him by showing they cooperated with the prosecution, yet they neither offered nor gave any help to the defense.[19] However, Miller’s attempt to show bias was thwarted when the trial court sustained objections to Miller’s questions to police, such as, “Is it fair to say, based on your cooperation, and lack of cooperation, that your interest is to help the government in this case?”[20] The trial court informed Miller that it would continue to sustain objections to that type of question; however, the trial court added that it would allow “factual questions.”[21]

Miller also argued that it was prosecutorial misconduct to use “thunk” in describing the sound of Miller’s unknown object hitting the ground, because no one had testified to the sound.[22] During testimony, Smith simply stated that the object sounded like a “firearm hitting the ground.”[23]

C. Burden of Proof

During trial testimony, the prosecution asked Smith if he thought officers were lying on the stand.[24] The defense counsel objected to this question because it “distorted” the government’s burden of proof by implying that in order to acquit Miller, the jury had to believe police were lying.[25] Although the prosecution rephrased the question, it used the same strategy during closing arguments.[26] At closing, the defense counsel stated that it was possible to believe both Miller and Smith’s testimony and conclude that Miller did not possess a gun: “It’s not a he said/he said credibility contest. You can believe both of those people . . . . you don’t have to find that Officer Smith was lying.”[27]

But in its rebuttal argument, the prosecution suggested that the jury had to conclude that Smith was lying in order to find that Miller did not possess a gun: “[I]f you acquit the defendant, you have to think that Officer Smith made a huge mistake, and you have to wonder what his motivation was for making that mistake.”[28] Miller’s objection to the prosecution’s closing argument was overruled, and he was found guilty and sentenced to fifty-seven months in prison.[39]

II. Legal Background

Miller appealed on four bases: (1) the court abused its discretion by allowing the prosecution to misstate the burden of proof necessary to acquit Miller of unlawful possession of a weapon; (2) the court abused its discretion when it allowed the prosecution to use “thunk” to describe the noise of Miller’s discarded object when it hit the ground; (3) the court erred when it sustained the prosecution’s objection to a defense strategy that was meant to show police bias; and (4) the prosecution failed to put on enough evidence to convict Miller.[30]

A. Standard of Proof

The Eighth Circuit focused its attention on Miller’s first contention that the trial court abused its discretion when it allowed the prosecution to imply that the jury had to believe that Smith was lying in order to acquit Miller.[31] The standard for reviewing statements made in closing arguments is found in United States v. Eldridge, and the trial court is granted broad discretion.[32] However, if the prosecution acts improperly, the reviewing court will reverse error “‘only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.’”[33] The Eighth Circuit has stated that generally a reversal is granted when “the verdict could reasonably have been affected by the alleged misconduct.”[34]

B. Discussion

The prosecution defended its closing arguments tactics by stating that Smith’s “credibility” had been challenged and that it was simply asserting that Smith was telling the truth.[35] The Eighth Circuit, however, dismissed the prosecution’s explanations because Miller had not questioned Smith’s credibility; in fact, Miller stated that he did “not believe Officer Smith lied during his testimony.”[36] Because Miller did not challenge Smith’s character, the prosecution’s closing argument was deemed improper.[37]

The Eighth Circuit also found that the trial court failed to give “curative instruction” to the jury to mitigate the impact of the prosecution’s comments.[38] In a similar case, a “curative instruction” and the strength of the prosecution’s case were key to finding that that the trial court did not abuse its discretion.[39]

After finding that the prosecution made improper comments and that the trial court failed to mitigate the effects of the comments, the Eighth Circuit considered the cumulative effect of these comments on the jury.[40] Additionally, the court found that the timing of the prosecution’s comments were prejudicial because they occurred during the prosecution’s rebuttal comments when Miller did not have a chance to respond except by making an objection.[41] However, because the objection was overruled “almost immediately before the case was submitted to the jury,” the jury was likely to have been affected by the prosecution’s closing comments.[42]

The Eighth Circuit next considered whether the prosecution’s improper argument would have much effect on this particular case.[43] If the prosecution’s case was strong, then improper comments would be less likely to affect the outcome of the case.[44] The Eighth Circuit found that the government’s case was not “overwhelming,” noting that Smith was the only witness and that the case turned on Smith’s testimony, “making the improper comments potentially prejudicial.”[45]

The court also briefly addressed evidentiary issues.[46] The Eighth Circuit found that Miller failed to object to the prosecution’s use of “thunk” to describe the sound of the unknown item hitting the ground when no witnesses used that word to describe the sound.[47] The court noted that Miller used that same word in his closing argument and found no error by the trial court.[48] The Eighth Circuit also found no error when the trial court limited Miller’s cross-examination of the investigators.[49] The court found that “the limitation did not preclude defense counsel from challenging the witnesses’ credibility – nor did it prevent Miller from arguing bias in his closing.”[50]

Ultimately, the Eighth Circuit reversed and remanded the case, finding that it did not need to consider whether a hypothetical jury would have found for the prosecution.[51]

III. Comment

United States v. Miller is an example in which both the prosecution and the trial court are held accountable for ensuring that the defendant is provided with a fair trial.[52] In this case, the prosecution was admonished for making prejudicial comments during the rebuttal portion of the closing arguments, and the trial court was reprimanded for failing to take curative action to prevent an effect on the jury.[53] As stated in Eldridge, the trial court has broad discretion over closing arguments,[54] and the court of appeals should overturn a verdict only if the prosecutorial misconduct “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”[55] The court was acting within its powers to reverse and remand the case.

However, by citing the evidence implicating Miller (no DNA trace on the gun; only one witness; improbable throw of weapon that clears an 8-foot fence; gun landing 40 to 45 feet from the place where Smith said the weapon landed), the court suggested that the jury got the verdict wrong when it stated that the prosecution’s case was hardly “overwhelming.”[56] By reviewing “the cumulative effect of such misconduct,” the court seemed to move beyond reviewing the case based on “abuse of discretion” to apply the “substantial evidence” standard, through which appellate courts review questions of fact.[57] The appellate court is essentially hinting to Miller that he might fare better by choosing a bench trial.

-Linda Man

[1] No. 10-1187, 2010 U.S. App. LEXIS 18816 (8th Cir. 2010).
[2] Id. at *2.
[3] Id.
[4] Id. at *2-3
[5] Id.
[6] Id. at *4.
[7] Id. at *3-4. The gun found was an Arma Galesi Brescia-Brevetto,7.65 mm. Id. at *4.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at *5.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at *6.
[19] Id.
[20] Id.
[21] Id. at *8.
[22] Id.
[23] Id. at *10.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id. at *11.
[29] Id. at *11-12.
[30] Id. at *12.
[31] Id.
[32] 984 F.2d 943, 946 (8th Cir. 1993).
[33] Miller, 2010 U.S. App. LEXIS 18816 at *14 (quoting United States v. Foreman, 588 F.3d 1159, 1164 (8th Cir. 2009).
[34] Id. (citing Eldridge, 984 F.2d at 947).
[35] Id. at *14.
[36] Id. at *18.
[37] Id.
[38] Id. at *17.
[39] Id. (citing United States v. Reed, 724 F.2d 677, 681 (8th Cir. 1984).
[40] Id. at *20.
[41] Id. at *20-21.
[42] Id. at *21.
[43] Id. (citing United States v. Combs, 379 F.3d 564, 574 (9th Cir. 2004)).
[44] Id.
[45] Id. at *21-22 (citing United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976)).
[46] Id. at *22.
[47] Id. at *23.
[48] Id.
[49] Id. at *24.
[50] Id. at *25.
[51] Id.
[52] Miller, 2010 U.S. App. LEXIS 18816
[53] Id. at *17-20.
[54] Id. at *13 (citing Eldridge, 984 F.2d at 946).
[55] Miller, 2010 U.S. App. LEXIS 18816 at *14 (quoting United States v. Foreman, 588 F.3d 1159, 1164 (8th Cir. 2009).
[56] Id. at *21-22.
[57] See Glasser v. United States, 315 U.S. 60,80 (1942); see also 662 S.W.2d 953, 955.

Brewer v. Missouri Title Loans, Inc.[1]

2010-08-31T22:18:00.000-05:00

Opinion handed down August 31, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri affirmed the trial court’s finding that a class arbitration waiver was substantively unconscionable but reversed the judgment allowing the action to proceed to arbitration. The court ruled that the only appropriate remedy was to strike the entire arbitration agreement.

I. Facts and Holding

Beverly Brewer borrowed $2,215 from Missouri Title Loans (Lender) and secured the loan with the title to her 2003 Buick Rendezvous.[2] Brewer signed a promissory note, security agreement, and a loan agreement that included language waiving the right to class arbitration of claims against the Lender.[3] Brewer filed a class action suit against the Lender alleging violations of Missouri’s merchandising practices act because the annual percentage rate on the loan was 300 percent.[4] The Lender moved to compel Brewer to arbitrate her claims individually because she had signed a waiver of her right to class arbitration.[5] The trial court ruled that the class arbitration waiver was unconscionable and thus unenforceable.[6] Additionally, the court ordered the claim to proceed to arbitration to determine whether the case was suitable for class arbitration.[7] The Lender appealed from this decision.[8]

II. Legal Background

A. Federal Arbitration Act

“[W]here an arbitration agreement is silent with respect to class arbitration, the parties cannot be compelled to submit the dispute to class arbitration.”[9] Without the express consent of the parties, an arbitrator has no authority to decide such claims.[10] In Brewer, by including the waiver of class arbitration claims, the Lender expressly withheld consent for such claims to be decided by an arbitrator.[11] Without consent, the Lender could not be compelled by the court to participate in class arbitration.[12]

Furthermore, the court found that Brewer could not be forced to submit to individual arbitration, since it determined that the class arbitration waiver was unconscionable.[13] After the trial court severed the class arbitration waiver and determined that individual arbitration was not economically or practically feasible, the only possible option was a class action in a court of law.[14] As such, the trial court erred when it severed the class arbitration waiver and required an arbitrator to determine whether class arbitration was proper.[15]

B. Unconscionability

Several cases from the Missouri courts of appeals indicate that a successful claim of unconscionable contract terms requires a showing of both procedural and substantive unconscionability.[16] In contrast, the Supreme Court of Missouri’s decision in State ex rel. Vincent v. Schneider supports the conclusion that it is unnecessary to prove both procedural and substantive unconscionability in order to prove unconscionable contract terms under Missouri law.[17] Thus, the court reasoned that unconscionability may be proven by procedural unconscionability, substantive unconscionability, or both.[18]

In the present case, the court found evidence of procedural unconscionability because the loan was non-negotiable and the average consumer would not understand that the Lender was in a superior bargaining position.[19] Additionally, the court found evidence of substantive unconscionability.[20] If arbitrated as an individual claim, Brewer was unlikely to be able to retain counsel.[21] Without access to counsel, Brewer was left with no viable manner of redress for her legal claims against the Lender.[22] This fact, combined with the inability to arbitrate the claim as a class, rendered the class arbitration waiver substantively unconscionable under Missouri law.[23]

C. Exculpatory Clause

“A defendant cannot exculpate itself from liability under contract with waiver unless [its] language is clear and unambiguous.”[24] The issue in the present case was not whether Brewer realized she was giving up class arbitration but that she was effectively immunizing the lender from all liability by waiving class arbitration.[25] Unless the language was clear that Brewer was effectively giving up the ability to bring a claim against the Lender, it was not a valid waiver.[26] Given that the waiver did not inform the consumer of this effect in unambiguous terms, the court ruled that the lender cannot be exculpated by the class arbitration waiver clause.[27]

D. Majority Holding

The court held that the class arbitration waiver was unconscionable and affirmed the judgment of the trial court.[28] However, the court reversed the decision of the trial court requiring arbitration on the issue of whether class arbitration was appropriate.[29] As noted above, the Supreme Court of Missouri reasoned that the trial court’s requirement of individual arbitration was contradictory to its decision that the class arbitration waiver was unconscionable.[30] The case was remanded to the trial court.[31]

E. Dissenting Opinions

Judge Price dissented in the case.[32] He reasoned, in contrast to the majority opinion, that both procedural and substantive unconscionability must be shown under Missouri law in order to prevail on a claim of unconscionability.[33] Brewer did not prove procedural unconscionability and hence, did not satisfy the requirements for an unconscionability claim in Missouri.[34] Specifically, Brewer did not prove that coercive tactics were used to compel her agreement.[35] She considered twenty competitor lending options before choosing the Lender, and the waiver of her right to class arbitration was printed in bold capital letters in her agreement.[36] Judge Price argued that, since Brewer lacked proof that her agreement with the Lender was procedurally unconscionable, her claim of unconscionability fell short of the requirements of Missouri law and the trial court’s decision should have been reversed.[37]

In a separate dissenting opinion, Judge Breckenridge wrote that the court did not have to decide the issue of whether a showing of both procedural and substantive unconscionability was required in Missouri.[38] In her view, Brewer did not show unconscionability of either kind, and the class arbitration waiver should have been enforced as written.[39]

III. Comment

Brewer is important to arbitrations in Missouri for two reasons: (1) the application of federal law regarding consent to arbitration and (2) the determination of Missouri law regarding unconscionability in arbitration agreements. Regarding the first point, the Federal Arbitration Act requires express consent to arbitrate a dispute in order for the claim to be heard by an arbitrator.[40] Affirming the rule established in Stolt-Neilsen, Brewer confirms that arbitrators in Missouri do not have authority to hear issues when the arbitration agreement is silent on those subjects.[41]

Regarding the second point, Brewer sets a clear precedent for unconscionability in arbitration agreements. Before this case, appellate courts in Missouri had generally ruled that both types of unconscionability were required.[42] However, Brewer has established that a showing of unconscionability in arbitration agreements does not require both procedural and substantive unconscionability.[43] While the long-term outcome of this ruling remains to be determined, the immediate outcome is clear – the Supreme Court of Missouri has decided a contestable issue in arbitration law in favor of consumers. Relaxing the requirements for a showing of unconscionability will prevent some parties from engaging in business practices that were previously protected by unconscionable arbitration terms. The overall effect should be an increase in consumer protection in the marketplace.

-Ronald K. Rowe II

[1] No. SC90647, 2010 WL 3430411 (Mo. 2010) (en banc).
[2] Id. at *1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. (citing Stolt-Nielsen v. Animal Feeds Intl. Corp., 130 S. Ct. 1758, 1774-75 (2010).
[10] Id.
[11] Id. at *2.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at *3 (citing State ex rel. Vincent v. Schneider, 194 S.W.3d 853 (Mo. 2006)).
[17] Id.
[18] Id.
[19] Id. at *4.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id. at *5 (citing Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 334 (Mo. 1996) (en banc).
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id. at *6.
[34] Id. at *7.
[35] Id.
[36] Id.
[37] Id. at *8-9.
[38] Id. at *9.
[39] Id. at *10.
[40] Id. at *1 (citing 9 U.S.C. § 1, et seq.).
[41] Id. at *1.
[42] Id. at *6.
[43] Id. at *3.

Peoples Bank v. Frazee[1]

2010-08-31T18:41:00.004-05:00

Opinion handed down August 31, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri reviewed an action to register a foreign default judgment against the guarantor of a loan. The guarantor filed a limited appearance in order to quash the foreign judgment for a lack of personal jurisdiction. The court held that the guarantor had sufficient minimum contacts for the foreign state to properly exercise personal jurisdiction over the defendant.

I. Facts and Holding

Peoples Bank, located in Oklahoma, extended a loan to H.L Frazee’s grandson Stephen Frazee and his wife Jennifer, who were both domiciled in Oklahoma.[2] “When Stephen and Jennifer defaulted on the loan, Bill Burnett, executive vice president of Peoples Bank, met with Stephen and informed him that Peoples Bank was calling the promissory note due to the default.”[3] After receiving this information, Stephen told Mr. Burnett that his grandfather, H.L. Frazee, would be willing to help him resolve the situation.[4]

Mr. Burnett placed a call to H.L. Frazee and informed him of the situation.[5] After speaking with Stephen and Jennifer, H.L. Frazee telephoned Mr. Burnett at Peoples Bank and agreed to sign a guaranty on the promissory note.[6] The bank sent a guaranty note to H.L. Frazee at his Missouri address, which he signed and returned to the bank’s Oklahoma address.[7] After the guaranty was returned, Stephen and Jennifer executed a new promissory note.[8] Stephen and Jennifer also defaulted on the second note.[9] The bank demanded payment from Stephen, Jennifer, and H.L. Frazee; however, a payment for the note was never received.[10]

Peoples Bank filed a petition in Tulsa County, Oklahoma, asserting breach of the promissory note against Stephen and Jennifer, and breach of obligation upon guaranty against H.L. Frazee.[11] The court clerk sent a summons to the Missouri address of H.L. Frazee, but he refused service.[12] “None of the defendants filed answers in the Oklahoma action,” and the court entered a default judgment against the parties.[13] All of the parties were found “jointly and severally liable for $72,520.84 plus interest, attorney fees, and costs.”[14]

The current action was filed in Missouri by Peoples Bank for registration of the Oklahoma judgment.[15] In response, H.L. Frazee appeared and presented a motion to quash the registration of the foreign judgment, arguing that the judgment was unenforceable against him because the Oklahoma court lacked personal jurisdiction.[16] The Missouri circuit court heard arguments and sustained the motion to quash, holding that Peoples Bank had not met its burden of showing personal jurisdiction over H.L. Frazee.[17]

Peoples Bank appealed the circuit court ruling, asserting that the court erred when it placed the burden on the bank to prove that the Oklahoma court had personal jurisdiction over H.L. Frazee.[18] The bank also asserted that the Missouri court erred in finding that the Oklahoma court lacked personal jurisdiction.[19]

A. Burden of Proof

Article IV, Section 1 of the United States Constitution requires state courts to “give full faith and credit to the valid judgment of a sister state unless there is (1) a lack of subject matter jurisdiction, (2) a lack of personal jurisdiction, or (3) fraud in the procurement of the judgment.”[20] The Supreme Court of Missouri additionally highlighted that a foreign judgment carries with it a “strong presumption” that jurisdiction over the parties was proper and the court followed the proper law.[21] The court held that, in order to overcome the presumption of validity, the party alleging invalidity of the prior judgment must advance “‘the clearest and most satisfactory evidence.’”[22] Therefore, because H.L. Frazee was challenging the validity of the Oklahoma judgment the burden was on him to prove that jurisdiction in the foreign court was not proper.[23]

However, the court also held that incorrectly placing the burden on Peoples Bank did not automatically entitle it to relief.[24] The determination of which party has the burden of proof is a legal conclusion that is subject to de novo review when appealed.[25] The court declares that “de novo review eliminates any prejudice to Peoples Bank from the circuit court’s erroneous assignment of the burden of proof to Peoples Bank.”[26]

B. Personal Jurisdiction over Defendant

Peoples Bank also cited error in the circuit court’s holding that the Oklahoma court lacked personal jurisdiction over H.L. Frazee.[27] Oklahoma’s long-arm statute allows Oklahoma courts “to exercise jurisdiction ‘on any basis consistent with the Constitution of [Oklahoma] and the Constitution of the United States.’”[28] Therefore, the courts of Oklahoma have jurisdiction over non-residents to the extent allowed by the Oklahoma Constitution and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.[29] Because Oklahoma’s jurisdiction extends to the extent allowed by the U.S. Constitution, “the inquiry is whether the Oklahoma court’s exercise of personal jurisdiction over [H.L.] Frazee comports with federal due process.”[30]

According to United States Supreme Court precedent, in order to comply with the Due Process Clause of the Fourteenth Amendment, the defendant must have “minimum contacts with the forum state so that ‘maintenance of the suit does not offend traditional notions of fair play and substantial justice.’”[31] Peoples Bank alleges that H.L. Frazee’s action in signing a guaranty on the loan established the necessary minimum contacts with Oklahoma.[32] However, the court notes that a guaranty is a contract, which cannot be used per se to establish the necessary minimum contacts in the plaintiff’s home forum.[33] Whether a contract establishes minimum contacts requires a fact-specific inquiry.[34]

The court held that there were sufficient contacts to allow the Oklahoma court to properly exercise jurisdiction over the non-resident guarantor, because H.L. Frazee played an active role in the process and his execution of the guaranty induced Peoples Bank to extend credit.[35] The court also highlighted that H.L. Frazee was aware that his grandson lived in Oklahoma and that the bank was also located in Oklahoma.[36]

H.L. Frazee argued that because he derived no pecuniary gain from the transaction that jurisdiction over him in the foreign state was improper.[37] However, the court held that pecuniary gain is not necessary for a finding of personal jurisdiction.[38] The court then noted that because Mr. Frazee purposely availed himself to suit in Oklahoma, the next inquiry was whether the exercise of jurisdiction by the court was reasonable.[39]

The court noted that H.L. Frazee should have been aware that, by becoming a guarantor of the promissory note, he was voluntarily subjecting himself to litigation in Oklahoma courts.[40] The court also pointed out that Oklahoma has a strong interest in the ability to enforce agreements that its citizens rely upon.[41] The court ultimately held that because Mr. Frazee “purposefully directed activity into the forum and purposefully availed himself to the protections of the [sic] Oklahoma, [he] should not be able to avoid his interstate obligation by asserting that lack of personal jurisdiction.”[42]

II. Legal Background

H.L. Frazee and his counsel attempted to rely on the First Circuit’s decision in Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc. for the proposition that a nonresident guarantor must be seeking a pecuniary gain from the executed guarantee.[43] In Bond, the First Circuit examined an action where the plaintiff sought to enforce a judgment in a foreign jurisdiction against a party who had written four separate letters evidencing a guarantee of payment for goods sold.[44] The court stated that the “contract plus” approach should be applied to cases when deciding whether jurisdiction is proper over a non-resident guarantor.[45]

The court focused on “whether the commercial action taken, in light of the contacts with the forum state it entailed, amounts to a purposeful decision by the nonresident to ‘participate’ in the local economy and to avail itself of the benefits and protections of the forum.”[46] The court rejected Q.T. Shoe Manufacturing’s argument that jurisdiction was proper over Bond Leather because their guarantee of payment allowed the transaction to move forward. [47] The court found that guarantee of payment was not sufficient on its own to support jurisdiction over Bond Leather.[48]

The court in Bond examined the record, which provided no contacts linking the foreign defendant to the court.[49] Additionally, the guaranty agreement did not call for an active role by the foreign party, who did not participate directly in negotiating the terms of the agreement.[50] Moreover, none of the contract rights would have allowed the plaintiff to “reap the benefits of Massachusetts law.”[51] The record also lacked any indication that the guarantor actually reaped benefits as a result of his guaranty.[52] “Rather than marking any move . . . into the [foreign] marketplace, [defendant’s] action represented an apparently isolated attempt to assist . . . [a] flagging corporation.”[53] The First Circuit held that, “absent any intent . . . to exploit the local economy,” forcing the defendant to assert his rights in a foreign jurisdiction “would violate the traditional notions of fair play and substantial justice.”[54]

The Supreme Court of Missouri also discussed the Third Circuit case of Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino.[55] In Mellon, the court decided whether a state court had personal jurisdiction to enforce a guarantee and suretyship agreement against a foreign defendant.[56] The court held that the defendants had “purposefully availed themselves of the privilege of conducting business in the Commonwealth.”[57] All of the defendants were aware that they were guaranteeing a Pennsylvania entity.[58] They provided personal net worth documentation to the bank in Pennsylvania in order to get the financing approved.[59] Additionally, the defendants also approached the bank and “established a business relationship” with the foreign entity.[60]

As a result of these actions, the court concluded that “the defendants ‘purposely directed’ their activities toward a [foreign] resident and thereby availed themselves of the opportunity to do business there.”[61] By asking the foreign bank to lend money, the defendants had created a “continuing relationship” in the foreign jurisdiction.[62] After examining the conduct of the defendants, the Third Circuit determined that the state court had proper jurisdiction over the defendants.[63]

The Supreme Court of Missouri also looked to the Eighth Circuit’s decision in Arkansas Rice Growers Cooperative Ass’n v. Alchemy Industries, Inc., where the plaintiff sought to enforce contracts against a guarantor residing in a foreign jurisdiction.[64] The defendants in this case were investors in a corporation, and the corporation’s debt was assured by a guarantor.[65]

The Alchemy court held that the contacts between the foreign guarantors and the forum state were not sufficient for the court to exercise jurisdiction.[66] In distinguishing other cases where jurisdiction was proper, Alchemy named three conditions for asserting jurisdiction over a foreign defendant: “[1] [if] there has been a substantive identity of the guarantors and the corporation whose obligation they guarantee, . . . [2] [if there is] evidence that the beneficiary of the guarantee contract would not have entered into the transaction without the guarantees of specific individuals, . . . [3] or [if] a provision in the guarantee contract of the underlying contract states that the law of the forum state would control.”[67]

The Eighth Circuit said that they were not aware of any cases where a court asserted jurisdiction over a non-resident guarantor who is merely a passive investor in the entity whose debt the guarantor assures.[68]

III. Comment

In Peoples Bank, the Supreme Court of Missouri faced a unique situation without any precedent exactly on point. The guarantor, H.L. Frazee, was much more than a passive investor.[69] The actions of H.L. Frazee induced the Oklahoma bank to extend credit to his grandson and his grandson’s wife, but clearly his motivation was not an attempt to make a pecuniary gain off of the transactions. [70]

The defendant’s active role in helping his grandson get the loan made the Oklahoma court’s jurisdiction comport with the traditional notions of fair play and substantial justice. In order for banks to profit off of lending money, they rely on their state courts to enforce the obligation to repay. There was no deception about the location of H.L. Frazee’s grandson or the bank. By becoming a guarantor and taking an active role in the process, the Oklahoma court had a significant interest in asserting jurisdiction over the defendant.

This decision will have important precedential value for Missouri residents and businesses. Any actions taken in foreign jurisdictions where Missouri residents take a semi-active role in a business or financial transaction will subject Missourians to the rulings of foreign jurisdictions. Because the possibility of a pecuniary gain is not a requirement, many Missouri residents may not even realize that that they are bound by foreign judgments.

-Lawrence Hall

[1] 318 S.W.3d 121 (Mo. 2010) (en banc).
[2] Id. at 125.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. at 125-26.
[10] Id.
[11] Id. at 126.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 126-27; see also Phillips v. Fallen, 6 S.W.3d 862, 864 (Mo. 1999) (en banc).
[21] Id. at 127.
[22] Id. (quoting Phillips, 6 S.W.3d at 868).
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id. at 128 (quoting Okla. Stat. tit. 12 § 2004(F) (1993)).
[29] Id. (citing Conoco, Inc. v. Agrico Chem. Co., 115 P.3d 829, 834 (Okla. 2004)).
[30] Id.
[31] Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
[32] Id. at 129.
[33] Id. at 129-30; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985).
[34] Id. at 130.
[35] Id at 131.
[36] Id.
[37] Id.
[38] Id. at 132.
[39] Id.
[40] Id. at 133.
[41] Id.
[42] Id.
[43] Id. at 131 (citing Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc., 764 F.2d 928 (1st Cir. 1985)).
[44] Bond, 764 F.2d at 929-30.
[45] Id. at 933.
[46] Id at 933-34.
[47] Id.
[48] Id. at 934.
[49] Id.
[50] Id.
[51] Id.
[52] Id.
[53] Id.
[54] Id. at 934-35.
[55] Peoples Bank v. Frazee, 318 S.W.3d 121 at 130 (Mo. 2010) (en banc) (citing Mellon Bank (East) PSFS, Nat’l Ass’n. v. Farino, 960 F.2d 1217 (1992)).
[56] Mellon Bank, 960 F.2d 1217 at 1219.
[57] Id. at 1223.
[58] Id.
[59] Id.
[60] Id.
[61] Id.
[62] Id.
[63] Id. at 1227.
[64] People’s Bank v. Frazee, 318 S.W.3d 121 at 130 (Mo. 2010) (en banc) (citing Aransas Rice Growers Cooperative Ass’n v. Alchemy Industries, Inc., 797 F.2d 565 (8th Cir. 1986)).
[65] Arkansas Rice Growers, 797 F.2d at 567.
[66] Id. at 573.
[67] Id. at 573-74
[68] Id.
[69] People’s Bank, 318 S.W.3d at 131.
[70] Id. at 125-26.

Brinker Missouri, Inc. v. Dir. of Revenue[1]

2010-08-31T18:00:00.000-05:00

Opinion handed down August 31, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri examined a restaurant corporation’s claim that the purchases of kitchen equipment, non-disposable tableware, furniture and other items are exempt from Missouri’s use tax. The court interpreted the use tax narrowly, holding that restaurants are not entitled to the “production exemption” because they do not qualify as “plants” and that restaurant food service is not the same as manufacturing a product. Additionally, the court held that restaurants are not entitled to the “sale exclusion” because cutlery, furniture, and other items are not permanently transferred to customers and customers are not charged additional consideration for their temporary use.

I. Facts and Holding

Section 144.610.1, commonly known as the “use tax,” charges businesses “for the privilege of storing, using or consuming within this state any article of tangible personal property.”[2] Brinker Missouri, Inc. (“Brinker”), headquartered in Dallas, Texas, owns and operates twenty-three restaurants in Missouri.[3] Brinker’s restaurants, including Chili’s Grill & Bar, Ramano’s Macaroni Grill, On the Border, and Maggiano’s Little Italy, are subject to Missouri’s Sales tax and its use tax.[4]

Brinker initially paid use tax on the items in question from October 1, 2003 through December 31, 2004, but sought a refund under two exceptions: the “product exemption” and the “sale exclusion.”[5] Brinker, requested a refund of $54,034.86 in October of 2006 for the use tax previously paid.[6] The director denied $48,966.83 of the refund and Brinker sought review of $44,183.93 of the amount denied.[7]

The applicable standard of review is that the court will affirm the commission’s decision if: “(1) it is authorized by law; (2) it is supported by competent and substantial evidence on the whole record; (3) mandatory procedural safeguards are not violated; and (4) it is not clearly contrary to the reasonable expectations of the General Assembly.”[8] The court reviewed the decisions of the commission de novo.[9]

II. Legal Background

A. Exempt from Use Tax

Under section 144.610.1 a tax is levied on Missouri businesses “for the privilege of storing, using or consuming within this state any article of tangible personal property.”[10] Brinker admitted that the use tax is applicable to its restaurants but argued that the stoves, refrigerators, and other items qualified for an exemption under section 144.615(3).[11] Section 144.615(3) provides an exemption for “[t]angible personal property, the sale of which …would be exempt from or not subject to the Missouri sales tax under the provisions of subsection 2 and 3 of section 144.030.”[12]

Brinker also argued that it qualified for “product exemption” under 144.030.2(4) and (5)[13] because “when it cooks and serves food, it in effect is making a product.”[14] The court read these provisions narrowly, holding that the exemption does not apply to Brinker.[15] The court first highlighted the text of 144.030.2(5), which provides definition of the machinery and equipment, which qualifies under the production exemption: “(5) Machinery and equipment . . . purchased and used to establish new or to expand existing manufacturing, mining or fabricating plants in the state if such machinery and equipment is used directly in manufacturing, mining, or fabricating a product which is intended to be sold ultimately for final use or consumption . . . .”[16]

The court noted that the language of the statute does not include “retail,” but instead uses the word “plants.”[17] “It expressly states that the machinery and equipment must be used for new or expanded plants that manufacture, mine or fabricate products intended to be sold ultimately for final use or consumption by others.”[18] The court concluded that restaurants do not produce products “for final use or consumption”; therefore, this exemption is not applicable to new or expanded kitchen equipment in restaurants.[19] The court held that the commission was correct in refusing Brinker’s request for a refund of $21,588.19, the amount requested for the new or expanded kitchen equipment, in use taxes paid.[20]

The court next addressed 144.030.2(4), which exempts certain replacement machinery: “(4) Replacement machinery, equipment, and parts and materials and supplies solely required for the installation or construction of such replacement machinery, equipment, and parts, used directly in manufacturing, mining, fabricating or producing a product which is intended to be sold ultimately for final use or consumption ….[21]”

The court construed paragraph (4) and (5) of 144.030(2) together and held that “machinery, equipment, and parts qualify for the exemption only if they are used to establish new or expanded manufacturing, mining, or fabricating plants.”[22] Brinker argued that this section should be interpreted broadly with the terms “manufacture” and “produce” to include cooking and preparing food.[23] The only thing that should be required, according to Brinker, “is simply to refer to preparing food as producing it and cooking food as manufacturing or transforming it.”[24]

The court disagreed, noting that, under statutory interpretation, principles an exemption is “allowed only upon clear and unequivocal proof, and doubts are resolved against the party claiming it.”[25] The court highlighted that, in lay terms, people do not speak of restaurants as manufacturing or producing food and drink.[26] The court then pointed to other statutory language where restaurants are specifically referred to, in contrast to the statutes that provide exemptions to the use tax.[27] The court found that, “[h]ad the legislature intended to include restaurants or restaurant equipment within the exemptions set forth in section 144.030.2, then it would have added the word ‘restaurant’ to those statutes.” [28] The court held that it was not in error to deny the requests for refunds paid in use tax on the replacement machinery.[29]

B. Exclusion Based on the Sale of Property

The Supreme Court of Missouri also examined Brinker’s claim that the “furniture at which the customers sit and eat as well as on the other items in and on which their food is served” is sold to the customers temporarily, consequently exempting the restaurants from having to pay a use tax on these items.[30] “Section 144.610.1 imposes a use tax ‘for the privilege of storing, using, or consuming within this state any article of tangible personal property.’”[31] However, according to section 144.605(13), the term “use” excludes “the sale of property in the regular course of business.”[32]

The court held that in order for a transaction to be a sale or resale under section 144.605(7), and therefore exempt from the use tax, “three elements must be satisfied: (1) a transfer, barter, or exchange; (2) of the title or ownership of tangible personal property, or the right to use, store, or consume the same; (3) for consideration paid or to be paid.”[33]

Brinker claimed that the cost of things like tables, chairs, silverware, and dishes are included in overhead and that when customers pay at the restaurant they are not only paying for food but also the right to temporarily use the furniture and silverware.[34] The court held this was not the legislature’s intent, and that if this were in fact the definition then “everything a customer touches in the restaurant in that sense is resold and not subject to the use tax.”[35]

The court determined that precedent relied on by Brinker did not support its argument because, in all of the cases relied upon, the title was transferred from the taxpayer to the third party for a purchase, and therefore a sale had occurred.[36] The court also highlighted that customers are not charged varying amounts based on whether they dine in the restaurant or take their meal home.[37] Therefore, the court held that Brinker did not qualify for the “sale exclusion.”[38]

C. Dissent

Writing in dissent, Chief Justice William Ray Price, Jr. argued that Brinker’s restaurants should qualify as “plants” and pointed to examples where the court broadly interpreted statutes.[39] He argued that because cooking requires manual skill and training, it fits within a trade that would qualify the restaurants as plants under 144.030.2(4) and (5).[40]

Chief Justice Price also argued that cooking qualifies as manufacturing under the statute.[41] Again, he pointed out that interpretation of what qualifies as “output” to meet the definition of manufacturing has been interpreted broadly by the court.[42] Justice Price pointed to Wilson & Company, Incorporated v. Department of Revenue, where the court held that preparing hogs for sale qualified as manufacturing.[43] Similarly, he argued that restaurants convert food into products fit for human consumption.[44] Chief Justice Price stated that by interpreting the statute narrowly the court is undercutting the legislative intent of creating jobs and nurturing small businesses in Missouri.[45]

III. Comment

The majority’s interpretation of the statute seems in line with the legislative intent when enacting the statute. If the legislature had intended to include restaurants, the phrasing and terminology of the statute would have been different or a section explicitly including foodservice would have been inserted. The legislature clearly set out to help businesses in the state of Missouri, but restaurants and their parent corporations were not the intended beneficiaries of this relief.

While Chief Justice Price goes through some terminology and other case law that could be used to side with Brinker, the majority reaches the most logical conclusion based on the language of the statute. Any other finding would have led to a windfall of refund claims from restaurants all over the state.

-Lawrence Hall

[1] No. SC 90463, 2010 WL 3430437 (Mo. 2010) (en banc).
[2] Id. at *2.
[3] Id. at *1
[4] Id.
[5] Id. at *2-5.
[6] Id. at *2.
[7] Id. “The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity of a treaty or statute of the United States, or of a statute or provision of the constitution of this state, the construction of the revenue laws of this state, the title to any state office and in all cases where the punishment imposed is death. The court of appeals shall have general appellate jurisdiction in all cases except those within the exclusive jurisdiction of the Supreme Court.” Mo. Const. Art. V, § 3.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at *3.
[16] Id. (quoting Mo. Rev. Stat. § 144.030.2(5)) (emphasis supplied by the court).
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id. (quoting Mo. Rev. Stat. § 144.030.2(4)) (emphasis supplied by the court).
[22] Id. at *4.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id. at *5.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id. at *6.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id. at *7
[42] Id. at *8
[43] Id. See 531 S.W.2d 752 (Mo.1976) (en banc).
[44] Id.
[45] Id.

State ex rel. Bobbie Jean Proctor and Vincent Proctor v. Honorable Edith L. Messina[1]

2010-08-31T17:02:00.003-05:00

Opinion handed down August 31, 2010.
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that the Health Insurance Portability and Accountability Act of 1996 (HIPAA)’s general rule that ex parte communications with a litigant patient’s physician are prohibited did not preempt Missouri law because prior Missouri case law never created a right for attorneys to engage in voluntary and informal ex parte communication with a plaintiff’s physician. Rather, Missouri case law only confirmed that, prior to HIPAA, there was no state or federal law that prohibited such informal communications with a plaintiff’s physician. Furthermore, the court held that HIPAA’s regulation allowing disclosure of a patient’s protected health information in the course of “judicial proceedings” does not apply to an informal meeting for ex parte communications. Therefore, the trial court erred in issuing an order advising a plaintiff’s non-party treating physicians that they may or may not participate in informal discovery using ex parte communications because the ex parte meeting is not considered a “judicial proceeding.”

I. Facts and Holding

Bobbie Jean Proctor and Vincent Proctor filed a medical malpractice complaint in the Circuit Court of Jackson County against Kansas City Heart Group, P.C.; Timothy L. Blackburn, M.D.; and St. Joseph Medical Center.[2] The complaint alleged that Bobbie Jean incurred damages during her surgery in March 2004 as a result of defendants’ medical negligence.[3]

The defendants filed motions with the Circuit Court of Jackson County seeking a formal order to allow “informal ex parte communications with Bobbie Jean’s treating physicians and other health care providers.”[4] After hearing oral arguments, the circuit court granted the motions and issued an order authorizing “non-party medical providers of Bobbie Jean Proctor to engage in informal ex parte communications with attorneys representing defendant medical providers.”[5] However, the order also stated that the plaintiffs’ medical providers were “free to ignore the purported ‘order’ as it relates to ex parte communications with the parties and their attorneys if they had not received authorization from their patient to engage in such ex parte communications.”[6] The scope of this order was not limited to disclosures that would lead to the discovery of admissible evidence.[7] In response to the Circuit Court’s ruling and order, the plaintiffs filed a motion for a writ of prohibition.[8]

The Supreme Court of Missouri, in a unanimous decision, held that, “by issuing a purported formal order that was directed to nonparty medical providers and, essentially, providing an advisory opinion to said non-party medical providers about the trial court’s understanding of the law on informal ex parte communications, the trial court exceeded its authority, and the preliminary writ of prohibition is made permanent.”[9]

II. Legal Background

A. Preemption

The court first dealt with the issue of whether the HIPAA preempts Missouri law on ex parte communications with medical providers.[10] The court noted that, under the United States Constitution’s Supremacy Clause, the federal law “‘shall be the supreme Law of the Land.’”[11] However, where the federal statute that is in question pertains to an area of law that is traditionally controlled by the states, preemption should only be found when it is clearly Congress’ intent to do so.[12]

HIPAA preemption is an issue of first impression for this court.[13] The court first decided whether to apply HIPAA as a whole in the preemption analysis or just a specific provision of HIPAA.[14] In other words, the question was whether the court should interpret HIPAA in its entirety as contrary to and more stringent than the specific state law at issue, or whether it should limit its preemption scope to a specific provision of HIPAA as contrary to and more stringent than a specific provision of state law.[15]

HIPAA’s express preemption language states that “‘a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall supersede any contrary provision of State law.’”[16] Furthermore, the Secretary of the Department of Health and Human Services has determined that, a court must isolate and compare a specific provision of HIPPA with the corresponding state provision in order to determine whether preemption exists; however, it does not matter if HIPPA preempts the isolated provision since the remaining provisions of the state privacy law would still be enforced.[17]

Based on the language of the statute and the Secretary’s statements, the court held that when engaging in a preemption analysis, the first step is to identify a specific HIPAA provision that is in conflict with a provision of Missouri law on ex parte communications between attorneys and physicians.[18] Once these provisions are identified, it must then be determined whether or not Missouri’s provision is more or less stringent than HIPAA’s provision.[19]

B. HIPPA Generally

The court states that in HIPAA, Congress’ intent was to “ensure the privacy of patients’ medical information,” and the Secretary was directed to promulgate rules and regulations in order to carry out Congress’ intent.[20] To this end, the Secretary “has defined protected ‘health information’ as: “[a]ny information, whether oral or recorded in any form or medium, that: “(1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.”[21]

Based on this regulation, the court found that, under HIPAA, physicians are prohibited from disclosing a patient’s protected health information in ex parte communications with a defendant’s attorneys unless an express exception applies.[22]

C. Missouri Law on the Issue of Ex Parte Communications

The court first begins its examination of Missouri law by noting that, under Missouri’s common law, a plaintiff in a personal injury lawsuit could not be forced to sign an authorization consenting to ex parte communications with treating physicians.[23] In State ex rel. Woytus v. Ryan, the court had “refused to compel a patient to sign a medical authorization order consenting to ex parte communications because ‘the [Missouri Rules of Court] do not expressly forbid ex parte discussion, [or] expressly authorize such discussion as a method of discovery.’”[24]

In Brandt v. Pelican, the court addressed “whether voluntary and informal ex parte communications between defense counsel and plaintiff’s treating physician (without plaintiff’s consent) were prohibited during the discovery period of litigation.”[25] The court examined Missouri’s physician-patient testimonial statute and, finding that there was no express prohibition on informal and voluntary ex parte communications with plaintiff’s physician in the statute, held that the defendant should not be sanctioned for engaging in voluntary and informal ex parte communication with the plaintiff’s physician.[26]

In Brandt v. Med. Def. Assocs., the court addressed “whether such voluntary ex parte communications by the plaintiff’s treating physician violated the physician’s common law fiduciary duty of confidentiality.”[27] The court held that once a personal injury lawsuit is filed where the plaintiff’s medical condition is placed at issue, there has been a waiver of the patient/physician privilege.[28] This waiver includes the physician’s duty of confidentiality, which itself includes voluntary ex parte conferences with the plaintiff’s treating physician.[29]

However, the court reiterated that nothing in either of the Brandt opinions establishes any basis to compel the plaintiff or his treating physicians to authorize, or participate in, ex parte communications.[30]

D. Treating Physicians Comply With HIPAA and Missouri Law

Following the Brandt cases, Congress passed HIPAA, which, unlike Missouri statutory law and discovery rules, specifically addressed the issue of voluntary ex parte communications with a litigant patient’s treating physician.[31] The general rule under HIPAA is that ex parte communications with a litigant patient’s physician are prohibited.[32] The question then is “whether or not HIPAA’s prohibition of the oral disclosure of plaintiff’s protected health information by one or more of plaintiff’s treating physicians, absent authorization by plaintiff, preempts Missouri law that fails to prohibit such ex parte disclosures.”[33]

The Supreme Court of Missouri held that while Missouri courts must comply with HIPAA, HIPAA does not preempt Missouri law on this specific issue.[34] The court reasoned that HIPAA did not preempt Missouri law because Missouri case law never affirmatively created a right for attorneys to engage in voluntary and informal ex parte communications with a litigant patient’s physician.[35] Rather, Missouri case law had only stated that at the time there was no state or federal law that prohibited such informal communications.[36]

E. Application of Enumerated Exceptions Prohibitions of Ex Parte Communications

Although HIPAA generally prohibits disclosure of a patient’s protected health information when no disclosure has been authorized, the regulations state that there are exceptions to the general rule.[37] Under 45 C.F.R. § 164.512(e)(1), a “‘covered entity may disclose protected health information in the course of any judicial or administrative proceeding: (i) [i]n response to an order of a court . . . or (ii) [i]n response to a subpoena [or] discovery request.’”[38]

The court held that the trial court erred in applying 45 C.F.R. § 164.512(e)(1) because the regulation’s language does not authorize the disclosure of protected health information during a meeting in which an attorney has ex parte communications with a physician without the patient’s express authorization.[39] In order for the exception to apply, “the covered entity’s disclosure must occur ‘in the course of’ a ‘judicial proceeding,’ and it must be made in response either to a formal process, whether in the form of a court order, discovery request or other lawful process.”[40]

In reaching this decision, the court engaged in a lengthy discussion of the meanings of the terms in 45 C.F.R. § 164.512(e)(1), looking to both the plain meaning of the statute and Missouri law.[41] The court held that the meeting where the ex parte communications occur is not considered to be a judicial proceeding.[42] It is not considered to be a judicial proceeding because the trial court has no general oversight of, or control over, the meeting.[43] Therefore, “45 C.F.R. § 164.512(e), which permits disclosures in the course of judicial proceedings, does not apply to a meeting for ex parte communications.”[44] Because it did not apply, the trial court lacked authority to issue its order “advising the plaintiff’s non-party treating physicians that they may or may not participate in informal discovery via ex parte communications.”[45]

Finally, the court gave direction to physicians who may wonder how to comply with the outcome of this case.[46] The court stated that “[t]he treating physician in this case can comply with HIPAA by not giving an ex parte interview without an authorization and also comply with Missouri common law by choosing not to grant the ex parte interview.”[47]

III. Comment

The Supreme Court of Missouri’s decision in State ex rel. Bobbie Jean Proctor sheds light on exactly what a physician is required to do, and what a court may order, when defendants seek to engage in informal ex parte communications with a plaintiff’s non-party physicians.[48] As a preliminary matter, although HIPAA does not preempt Missouri law, the court must apply HIPAA while using Missouri law to supplement it.[49] According to the court, a plaintiff’s physician must have authorization from the plaintiff to engage in an ex parte interview with defendants’ attorneys in order to be in compliance with HIPAA’s regulations.[50]

Additionally, under Missouri law, a plaintiff’s physician has the option to decline to be interviewed ex parte by defendants’ attorneys, even if the plaintiff has given authorization for the interview.[51] Finally, in the context of informal ex parte interviews, a court has no authority to order a plaintiff’s physicians to engage in ex parte communication with defendants’ attorneys since communication in that context does not constitute a “judicial proceeding” under Missouri law, and is therefore not allowed by HIPAA.[52]

The holding in this case provides assistance to Missouri physicians who wonder what their obligations are when they have treated a patient who becomes a plaintiff in a personal injury case and the defendants in the action seek to communicate ex parte with them.

-Adam J. Wallach

[1] 320 S.W.3d 145 (Mo. 2010) (en banc).
[2] Id. at 147.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. at 158.
[10] Id. at 148.
[11] Id. (quoting U.S. Const. art. VI, cl. 2).
[12] Id.
[13] Id.
[14] Id. at 149.
[15] Id.
[16] Id. at 148 (quoting 42 U.S.C. § 1320d-7(2) (1996)).
[17] Id. at 149.
[18] Id. at 150.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id. at 151. (quoting State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 392 (Mo. 1989) (en banc)).
[25] Id. (citing Brandt v. Pelican, 856 S.W.2d 658, 661 (Mo. 1993) (en banc)).
[26] Id.
[27] Id. at 152.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id. at 153.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id. at 155.
[39] Id. (quoting 45 C.F.R. § 164.512(e)(1) (2010)).
[40] Id.
[41] Id. at 155-56.
[42] Id. at 157 (citing 45 C.F.R. § 164.512(e)(1) (2010)).
[43] Id.
[44] Id.
[45] Id.
[46] Id. at 158.
[47] Id.
[48] Id.
[49] Id. at 153.
[50] Id. at 158.
[51] Id.
[52] Id.

Ruhl v. Lee’s Summit Honda[1]

2010-08-31T16:18:00.004-05:00

Opinion issued August 31, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held (1) an agreement to arbitrate disputes regarding the purchase of a vehicle requires arbitration of a claim that a dealer unlawfully charged a fee to prepare legal documents to finance vehicles; and (2) the trial court did not err in declaring a class arbitration waiver unconscionable when a single plaintiff’s recovery would total approximately $800. In sum, the court determined that the claim was within the scope of the arbitration agreement; however, the agreement’s class action waiver was unconscionable and could not be severed from the arbitration agreement.

I. Facts and Holding

Lee’s Summit Honda (“Honda”) sold and financed the purchase of a new car for plaintiff Ashley Ruhl (“Ruhl”).[2] The retail purchase agreement listed a total purchase price including a “Cash Price of Vehicle,” “Other Goods/Services,” and a “Dealership Administrative Fee.”[3] Honda required customers, including Ruhl, to sign an arbitration agreement waiving the opportunity to participate in a class action.[4]

Ruhl brought suit against Honda for damages on two counts seeking class action certification for herself and “others who paid the fee as part of the purchase price.”[5] Ruhl first claimed that the dealership “engaged in the unauthorized practice of law or conducted legal business violating section 484.020 because it charged a fee separate from other sale costs for preparing legal instruments to finance the transactions.”[6] Second, Ruhl claimed that the dealership “engaged in unfair and deceptive practices connected with the sale of merchandise under section 407.010” stemming from the same alleged acts.[7]

Honda sought to compel arbitration pursuant to the parties’ agreement, but the trial court denied Honda’s motion, “finding that the claim of unauthorized practice of law is not subject to arbitration because the courts exclusively decide what constitutes the unauthorized practice of law.”[8] Further, the court “found the arbitration agreement to be procedurally and substantively unconscionable.”[9]

On appeal to the Supreme Court of Missouri, Honda argued three points. First, that Ruhl’s claims were within the scope of the arbitration agreement.[10] Second, that the “unauthorized practice of law claim” should be subject to arbitration.[11] Finally, that the “class arbitration waiver was not unconscionable.”[12]

II. Legal Background

A. Scope of Arbitration Contracts

According to the U.S. Supreme Court, if a party has not agreed to arbitrate a matter, it cannot be compelled to arbitrate the matter.[13] In Missouri, “[t]here is a strong presumption in favor of arbitrability,”[14] and any “dispute that ‘touches matters covered by the parties’ contract’” is subject to arbitration.[15]

The court cited the pertinent section of the arbitration agreement: “[The Parties agree] to settle by binding arbitration any dispute between them regarding: (1) the purchase/lease by Customer(s) of the above-referenced Vehicle; . . . (4) any dispute with respect to the existence, scope or validity of this Agreement. Matters that the Parties agree to arbitrate include any alleged unfair, deceptive, or unconscionable acts or practices.”[16]

The court found that the plaintiff’s claims were based on an allegation that the dealership unlawfully billed customers to draft the “legal documents to finance vehicles.”[17] Thus, all damages would have been predicated on a refund of the “Dealership Administrative Fee,” which was expressly listed as part of the “total purchase price” in the contract.[18] The claims challenging the fee were within the scope of the arbitration agreement because they “constitute[d] a dispute regarding the purchase” of Ruhl’s automobile.[19]

B. Unconscionability

Although the court found that Ruhl’s claim fell “within the scope of the arbitration contract,” the dispositive issue in the case was the unconscionability of the class arbitration waiver.[20] The U.S. Supreme Court has recognized that an arbitration contract must positively indicate consent to class arbitration if a party is to be compelled to arbitrate on a class-wide basis.[21]

If the class arbitration waiver is unconscionable, one possible remedy is to sever it from the agreement.[22] However, if, after severing an unconscionable class waiver, a party is still pursuing the claim under unconscionable circumstances, courts may deem the entire arbitration agreement unconscionable. [23]

Here, severing the class waiver would require Ruhl to pursue a claim worth a maximum of approximately $800 in actual damages plus, potentially, attorney’s fees and punitive damages.[24] Because an attorney would be unlikely to take a consumer case where the potential recovery is so low and because the Missouri Merchandising Practices Act provides a right to bring a class action after meeting certain requirements, the court concluded that the trial court did not err in deeming the arbitration clause unconscionable.[25]

Since the class arbitration waiver was regarded as unconscionable, the court concluded that the appropriate remedy would be to invalidate the entire arbitration agreement as unconscionable.[26] This was appropriate because simply severing the class waiver would have required Ruhl “to pursue her claim under the very circumstances held to be unconscionable under Missouri law.”[27]

III. Comment

The decision in Ruhl comes at a time when the subject of arbitration has been in the spotlight. This case was largely decided in light of the recent Supreme Court case Stolt-Nielsen S.A. v. AnimalFeeds International Corp., where the Court clarified that, under federal law, the existence of an arbitration agreement does not provide grounds for an inference that a party implicitly authorized class action arbitration.[28]

Because Stolt-Nielsen construed federal law, the Supreme Court of Missouri did not need to follow that decision’s rationale. However, the Supreme Court of Missouri did ultimately take that route in Brewer v. Missouri Title Loans, Inc.[29] An interesting twist here is that Brewer was decided August 31, 2010, the same day as Ruhl.[30] While both parties in Ruhl likely had reason to believe that Missouri would follow the rationale of Stolt-Nielsen, it was not certain that the new default rule would be applied.

Ultimately, the basic rule that “arbitration ‘is a matter of consent, not coercion’” prevailed.[31] Missouri adopted the holding from Stolt-Nielsen that a party cannot be compelled to arbitrate on a class-wide basis when the agreement is silent with respect to class arbitration.[32] The Supreme Court of Missouri also determined that the appropriate remedy for a complainant suffering from an unconscionable class action arbitration waiver is to invalidate the entire arbitration agreement as unconscionable.[33]

-Chris Dandurand

[1] No. SC90601, 2010 Mo. LEXIS 200 (Mo. 2010) (en banc).
[2] Id. at *1.
[3] Id. at *1-2. The Dealership Administrative Fee totaled $199.95. Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at *2-3.
[9] Id. at *3.
[10] Id.
[11] Id.
[12] Id.
[13] Stolt-Nielsen v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758, 1775 (2010).
[14] Ruhl, 2010 Mo. LEXIS 200 at *4.
[15] Id. (quoting Kansas City Urology, P.A. v. United Healthcare Services, 261 S.W.3d 7, 12 (Mo. App. 2008)).
[16] Id.
[17] Id. at *4-5.
[18] Id. at *5.
[19] Id.
[20] Id.
[21] Stolt-Nielsen v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758, 1775 (2010).
[22] Ruhl, 2010 Mo. LEXIS 200 at *6.
[23] Id.
[24] Id.
[25] Id. at *6-7.
[26] Id. at *6.
[27] Id.
[28] 130 S.Ct. 1758, 1775 (2010).
[29] 2010 Mo. LEXIS 202 (2010).
[30] Compare Id. with Ruhl, 2010 Mo. LEXIS 200 at *5.
[31] Volt Info. Sciences, Inc. v. Bd. of Trustees, 489 U.S. 468, 479 (1989).
[32] Stolt-Nielsen, 130 S.Ct. at 1775.
[33] Ruhl, 2010 Mo. LEXIS 200 at *5.

Watson v. CEVA Logistics U.S., Inc.[1]

2010-08-30T11:36:00.005-05:00

Opinion handed down August 30, 2010
Link to Eighth Circuit Opinion

The Eighth Circuit Court of Appeals overturned a ruling by the United States District Court for the Western District of Missouri granting summary judgment in favor of an employer accused of maintaining a racially hostile work environment. In holding that summary judgment was improper, the Eighth Circuit found genuine issues of material fact as to whether the plaintiffs were subjected to a racially hostile work environment and whether the employer appropriately handled the incidents of harassment.

I. Facts and Holding

CEVA is a shipping logistics company that manages the shipment of automobiles by rail.[2] The two plaintiffs of the case, Alonzo Banks and Gregory Watson, are African-American males who began working for CEVA in a company owned railyard in September 2004 and May 2006 respectively.[3] Banks and Watson worked a variety of jobs at CEVA, including at least one position together.[4] Their allegations of a racially hostile workplace were similar in several respects and are detailed briefly below.[5]

A. White Employees Refusing to Work with African-American Employees

Both plaintiffs alleged that white employees routinely singled out African-American employees with whom they did not want to work and asked not to be assigned with that employee.[6] Reasons for these requests were not always provided to the supervisors; however, on at least one occasion, an employee admitted that the request was due to race.[7] In other instances, white employees cited safety concerns with the performance of black employees as reasoning for their requests for reassignment. Yet, this reasoning was in direct conflict with testimony regarding the performance of African-American employees.[8] Supervisor responses to such reassignment requests were generally to reassign the African-American employee, and no further action was taken.[9]

B. Racially Themed Graffiti in the Workplace

Racially themed graffiti was reported in multiple locations at CEVA.[10] In the company locker room, one workbench had “KKK” and “I hate n***ers” carved into it.[11] Banks complained to three supervisors about the carvings in 2006 and testified that the carvings had been there for “months and possibly years.”[12] He also complained about the workbench carvings to another supervisor, but the carving were not removed until Banks filed an EEOC complaint.[13] The plaintiffs also alleged that racial slurs were written in the stalls of the bathrooms and on the railcars in the railyard.[14] Banks complained of the graffiti on separate occasions and though CEVA covered up the graffiti, it often returned.[15] When Banks complained of the railcar graffiti in late 2006 and early 2007, including phrases such as “Hang a n***er” and “Kill the n***ers,” he was told by his supervisors that the company could not control what was written on the cars in the yard, given that CEVA did not own them.[16]

C. Display of the Confederate Flag and Other Racial Emblems

Both plaintiffs alleged that white employees regularly exhibited clothing and other displays of the Confederate flag, and sometimes in front of supervisors.[17] In other instances, employees wore shirts with swastikas on them.[18] When Banks and Watson complained about these instances, supervisors responded to some but not all of them.[19]

D. False Accusations of Safety Violations from Whites Aimed at African-American

While working together from 2006 to 2007, plaintiffs alleged multiple false accusations of safety violations from white co-workers.[20] These accusations, if believed, would have been grounds for termination, which seemed to be the intent of the accusers.”[21] Also, the plaintiffs alleged that co-workers intentionally tried to create dangerous working conditions so that the plaintiffs would be injured or fired.[22] At least one white employee warned them of such purposes, and when the plaintiffs complained, they were told to “tough it out” by their supervisor.[23]

E. Disparate Treatment

Watson testified that he and another African-American co-worker were drug tested and suspended after the wheels feel off a shuttle operated by them.[24] Yet, white co-workers in the same situation did not receive any disciplinary action.[25] Banks testified that he was disciplined for wearing a tank top on a hot day and for sleeping on the job but white co-workers were not disciplined for the same actions.[26] Both plaintiffs complained about the disparate treatment to their supervisors.[27]

F. Verbal Slurs, Comments, and Other Harassment

Watson testified about multiple instances in which he or other African-American employees were referred to specifically as “n***ger[s].”[28] When Watson reported several of these incidents to his supervisors, he was told that nothing could be done or the supervisor simply took no action.[29] During a six-month review following one of the incidents, Watson’s performance was deemed unsatisfactory because he failed to follow chain of command in reporting the incident.[30]

Banks testified that co-workers and at least one supervisor made disparaging comments related to race to himself and other African-American employees.[31] In addition to repeated use of the word “n***er,” Banks testified that multiple co-workers openly stated that they hated African-Americans.[32] He also reported that at least one supervisor falsely accused him of sleeping on the job after Banks had overheard him making a threat using a racial slur.[33]

G. Holding

The district court held that the plaintiffs failed to establish that they were subjected to a racially hostile workplace environment.[34] In particular, it held that the racial slurs and comments were too infrequent and that neither was physically threatened by the actions alleged.[35] The court further found that even if a prima facie case had been made, CEVA responded appropriately once it became aware of the graffiti and comments.[36] The plaintiffs appealed claiming that the court misconstrued the record regarding the severity of the harassment and that CEVA’s responses to the harassment were mixed, at best.[37]

II. Legal Background

In order to establish a claim of racially hostile work environment, a plaintiff must show (1) membership in a protected group; (2) the occurrence of unwelcome harassment; (3) “a causal nexus between the harassment and membership in the protected group[;]” and (4) “that the harassment affected a term, condition, or privilege of employment.”[38] Only harassment that is “severe or pervasive” rises to the level of “affect[ing] a term or condition or employment.”[39] Neither “simple teasing” in isolated incidents, nor “mere utterances” that cause offense to an aggrieved party are so “severe or pervasive” that they create a hostile work environment.[40] Instead, the workplace must be “permeated with discriminatory intimidation, insult, and ridicule” so as to cause a negative alteration of the conditions of the work environment.[41] Furthermore, to establish a claim, the alleged harassment must be hostile both to the aggrieved party and to a reasonable observer.[42] Finally, the plaintiff must show that the employer “knew or should have known about the harassment but failed to prevent to take proper action.” [43]

The court rejected CEVA’s arguments that the frequency of the alleged harassment and the instances of graffiti did not rise to the level of “severe and pervasive” such that it created a racially hostile work environment.[44] The court noted that frequency of the alleged harassment, while important, is not the only factor in establishing a hostile work environment.[45] The court must consider the totality of the circumstances in analyzing a hostile work environment claim.[46] In the present case, the fact that the slurs and comments were not general banter but comments made directly to the plaintiffs and their African-American co-workers were important factors as well.[47] The fact that the comments were made in front of supervisors implied that the offensive behavior was tolerated and that the workplace was hostile to African-American employees.[48]

With respect to the graffiti, CEVA’s contention that the plaintiffs could not accurately catalogue the number of times that they had seen graffiti was not compelling to the court.[49] Unlike verbal slurs, which are momentary and fade away, graffiti that remains or is repeatedly displayed stays in the viewer’s mind until the employer removes it.[50] Whether or not the plaintiffs could recall the number of times that they viewed the graffiti did not detract from the reasonability that the graffiti’s ongoing presence contributed to a racially hostile work environment.[51]

Furthermore, even if the slurs and graffiti alone were not substantial enough to establish a hostile work environment, CEVA’s inability to adequately justify the presence of other racially insensitive incidents and behaviors weighed in favor of the plaintiffs’ claim.[52] The continual presence of the confederate flag at the worksite without plausible explanation was one such deficiency.[53] While CEVA argued that plaintiffs’ allegations concerned actions that were facially neutral with respect to race, the court determined that the record contained an overall “racially motivated . . . pattern of harassment” at the workplace.[54]

Also, the court found that several of the racial slurs and comments could be viewed as “threatening or intimidating”, given the specific context of such incidents.[55] In particular, a white employee spitting tobacco on an African American employee during a racially charged conversation can be intimidating; likewise another white employee saying, “N***er, go down there and throw that switch” is also an incident in which one might reasonably be afraid for one’s safety.[56] Allegations that white co-workers intentionally tried to sabotage the workplace in efforts to harm or ensure the termination of their African American co-workers was even more alarming to the court.[57] These incidents, combined with Banks voicing concern for his safety to his supervisor, undercut CEVA’s contention that no reasonable person would have felt threatened by the slurs and other racially insensitive actions.[58]

Finally, the court rejected CEVA’s argument that it took “prompt and effective remedial measures” upon learning of the harassment allegations.[59] While measures were taken to correct some of the alleged harassment, a reasonable fact finder could conclude that CEVA supervisors “acquiesced in discriminatory behavior or were at least indifferent to complaints.”[60] Considering the record in a light most favorable to the plaintiffs, the court determined that material questions of fact existed as to whether the plaintiffs were subject to a racially hostile work environment.[61] Ultimately, the court determined that the lower court’s grant of summary judgment to the employer was improper and remanded the case for further proceedings consistent with the opinion.[62]

III. Comment

This case focuses on allegations similar to those reviewed earlier this year in Anderson v. Durham in which the Eighth Circuit upheld the same lower court’s grant of summary judgment in favor of the defendant employer.[63] When viewed in conjunction with Anderson, one can discern a definitive pattern developing in the Eighth Circuit with regard to the test for a racially hostile workplace. In Anderson, the court found summary judgment to be proper noting that the plaintiff’s behavior in response to alleged racially hostile behavior belied the claims made against his employer.[64] Furthermore, the court noted that there was insufficient evidence that Anderson’s supervisors were aware of the alleged racially hostile behaviors.[65]

In Watson, however, both plaintiffs complained to multiple supervisors on numerous occasions about the racially motivated behaviors that they experienced.[66] In one of the instances involving Banks, a supervisor allegedly used a racial slur and treated him disparately from his white co-workers.[67] Given the repeated actions of the plaintiffs to notify their supervisors of the racially motivated behavior and the failures by CEVA management to take appropriate remedial measures to correct these behaviors, the Eighth Circuit found summary judgment for the employer to be improper.[68]

Anderson and Watson establish two clear lessons for a plaintiff alleging a racially hostile work environment in the Eighth Circuit. First, the amount of notice given to management regarding the alleged hostility will have great weight in determining if a prima facie case has been established. Second, an employee alleging such a claim with the United States District Court for the Western District of Missouri would be well advised to prepare for an appeal of summary judgment to the Eighth Circuit.

-Ronald K. Rowe II

[1] No. 09-3322, 2010 WL 3385253 (8th Cir. 2010).
[2] Id. at *1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. at *2.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at *3.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at *4.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id. at *5.
[39] Id. (citing Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 892 (8th Cir. 2005)).
[40] Id. (citing Arraleh v. County of Ramsey, 461 F.3d 967, 979 (8th Cir. 2006)).
[41] Id. (citing Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 892 (8th Cir. 2005)).
[42] Id. (citing Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th Cir. 2002)).
[43] Id. (quoting Williams v. ConAgra Poultry Co., 378 F.3d 790, 794-95 (8th Cir. 2004)).
[44] Id.
[45] Id. at *6 (citing O'Brien v. Dep't of Agric., 532 F.3d 805, 809 (8th Cir. 2008)).
[46] Id.
[47] Id.
[48] Id.
[49] Id. at *7.
[50] Id. (citing Jerome R. Watson & Richard W. Warren, “I Heard it through the Grapevine”: Evidentiary Challenges in Racially Hostile Work Environment Litigation, 19 Lab. Law. 381, 399, 404 (2004)).
[51] Id.
[52] Id.
[53] Id.
[54] Id.
[55] Id. at *8.
[56] Id.
[57] Id.
[58] Id.
[59] Id
[60] Id.
[61] Id.
[62] Id.
[63] Anderson v. Durham, 606 F.3d 513 (8th Cir. 2010). See also http://missourilawreview.blogspot.com/2010/05/anderson-v-durham-d-m-llc1.html.
[64] Id. at 519-20.
[65] Id. at 519.
[66] Watson, 2010 WL 3385253 at *2-10.
[67] Id. at *4.
[68] Id. at *9.

State ex rel. Laughlin v. Bowersox[1]

2010-08-23T21:41:00.001-05:00

Opinion handed down August 23, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri discharged a man after he served over fifteen years in prison for burglary and property damage after finding that the circuit court in which the man was convicted and sentenced lacked jurisdiction. The court held that federal courts should have heard the defendant’s case because the offense occurred on federal property and the defendant’s failure to raise the issue of jurisdiction in an earlier proceeding did not bar his petition for habeas corpus relief.

I. Facts and Holding

In 1993, the Newton County circuit court convicted Dwight Laughlin of first-degree burglary and first-degree property damage.[2] The crimes for which Laughlin was convicted occurred in the United States post office in Neosho, Missouri.[3] The state of Missouri’s jurisdiction over the land the Neosho post office occupies was ceded voluntarily to the federal government when the United States acquired the land in order to build the post office in 1933.[4]

The Newton County circuit court sentenced Laughlin to a forty-year aggregate sentence.[5] Laughlin subsequently appealed his conviction and also filed a Rule 29.15 motion to vacate the judgment while his appeal was pending.[6] In his Rule 29.15 motion, Laughlin argued that the circuit court lacked jurisdiction to try his case because his offense was exclusively federal and, thus, that the state court’s jurisdiction was preempted.[7] However, the circuit court denied this claim, stating that “‘[n]o evidence was adduced showing the offense was not a state offense or that the federal government had pre-empted jurisdiction.’”[8]

Laughlin appealed the circuit court’s overruling of his Rule 29.15 motion to the court of appeals, which consolidated his original appeal and his appeal from his Rule 29.15 motion.[9] However, the only issue that was raised on that appeal was whether he had received ineffective assistance of counsel.[10] The court of appeals affirmed the circuit court’s order denying post-conviction relief, but failed to address the issue of jurisdiction because Laughlin did not raise it at that time.[11]

In November 2009, Laughlin filed a petition for writ of habeas corpus, challenging the circuit court’s jurisdiction in his case.[12] The Supreme Court of Missouri granted the writ in March 2010 after Laughlin had sought relief in both the circuit court and court of appeals.[13]

The state argued that the matter of jurisdiction was already fully litigated and that Laughlin was bound by the judgment and his failure to raise the issue on appeal.[14] However, the Supreme Court of Missouri disagreed, discharging Laughlin and holding that, when a trial court lacks subject matter jurisdiction to try the defendant, the judgment must be discharged regardless of whether the issue of jurisdiction was raised in an earlier proceeding.[15]

II. Legal Background

A. Subject Matter Jurisdiction

Article V, section 14 of the Missouri Constitution provides that “circuit courts shall have original jurisdiction over all cases and matters, civil and criminal.”[16] This constitutional mandate means that Missouri courts have subject matter jurisdiction over criminal cases that occur in the state, including burglaries and property offenses.[17] However, because of the principles of federalism, federal law trumps state law. In addition, the United States Constitution declares in Article I, Section 8, Clause 17 that, if jurisdiction is ceded by the state, the United States gains exclusive authority over that land.[18] Thus, Missouri courts lack the authority to enforce state laws on federal property.[19]

More than just the purchase of land within a state by the United States is required in order for a state to be divested of its jurisdiction.[20] The state must actually cede jurisdiction to the United States.[21] Also, a state’s cession of jurisdiction to the United States need not be absolute.[22] The United States Supreme Court has held that a state may make its cession of jurisdiction absolute or qualified in a manner in which it finds desirable.[23] The state of Missouri met this requirement when it enacted both Missouri Revised Statutes section 12.010 and section 12.020.[24] Section 12.010 ratified Missouri’s consent to the federal government’s purchase of the land to establish and maintain a post office in Neosho, Missouri.[25] Section 12.020 acted to cede jurisdiction over that particular land to the United States; the only right reserved to the state of Missouri by the statute was the right to serve process on the property.[26] Therefore, the joint effect of these two statutes was to give the United States exclusive jurisdiction for all crimes occurring on the Neosho post office’s land.[27]

The state argued that Missouri had the jurisdiction to prosecute Laughlin because “his mens rea to commit his crimes was formed before he stepped onto the Neosho post office’s land and because the results of his crime affected events in the state of Missouri.”[28] However, the court quickly dismissed this argument, stating that a defendant’s mens rea is not conduct as required by the statute that the state relied on.[29]

Therefore, by enacting both of these statutes, the state of Missouri chose to give exclusive jurisdiction over the Neosho post office to the United States.[30] The Supreme Court of Missouri further concluded that, since Laughlin’s conduct occurred on the post office’s land, the state of Missouri lacked the subject matter jurisdiction to prosecute Laughlin for this conduct.[31]

B. Laughlin’s Habeas Claim

Relief for a petitioner through a writ of habeas corpus is available “‘when a person is held in detention in violation of the constitution or laws of the state or federal government.’”[32] Further, habeas relief is available for petitioners who can demonstrate: “(1) a claim of actual innocence or (2) a jurisdictional defect or (3)(a) that the procedural defect was caused by something external to the defense – that is, a cause for which the defense is not responsible – and (b) prejudice resulted from the underlying error that worked to the petitioner’s actual and substantial disadvantage.”[33] The Supreme Court of Missouri found that Laughlin was not barred from habeas relief because the court that convicted him did not have the subject matter jurisdiction to do so.[34]

The state argued that the issue of jurisdiction was already fully litigated in Laughlin’s Rule 29.15 motion, and since the issue was not subsequently raised again in his appeal of that motion, he was barred from bringing such a claim in a habeas proceeding.[35] However, the court quickly dismissed this notion stating that “[i]f a criminal judgment was entered by a court without jurisdiction to do so, such a proceeding always should be found to be void, whether determined on direct appeal or in a habeas proceeding.”[36] Further, the court declared that neither Laughlin’s counsel’s failure to raise the jurisdictional issue in an earlier appeal nor the passage of time conferred jurisdiction on the Newton County circuit court, when it never had subject matter jurisdiction in the first place.[37]

III. Comment

The Supreme Court of Missouri’s decision in State ex rel. Laughlin reaffirms the high importance that the law puts on procedural technicalities such as jurisdiction.[38] Here, a man who had already spent over fifteen years in prison was released on a procedural technicality rather than on any substantive issue regarding his innocence.

The court’s decision here exemplifies how ineffective the criminal justice system is when these procedural technicalities are overlooked and guilty individuals go free. However, as emphasized in this case, technicalities like jurisdiction are essential to ensure the fairness of the criminal justice system.[39] Further, the courts claiming jurisdiction and those which believe they should have jurisdiction are responsible for ensuring that criminal defendants are prosecuted in the correct court in order to avoid guilty individuals from going free due to lack of jurisdiction.

In the instant case, if the Newton County circuit court and the federal court that should have had jurisdiction had diligently monitored the situation, Laughlin would have been tried in the correct court and would not have been freed from prison as a result of a jurisdictional defect.

-Lindsay Ponce

[1] 318 S.W.3d 695 (Mo. 2010) (en banc).
[2] Id. at 697.
[3] Id. The post office is located at 101 E. Hickory, Neosho, Missouri. Id.
[4] Id. at 698-99.
[5] Id. Laughlin was sentenced to thirty years for the burglary and ten years for the property damage. Id.
[6] Id. at 697-98.
[7] Id.
[8] Id. at 698.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. at 697.
[15] Id. at 703.
[16] Mo. Const. art. V, § 14.
[17] Id.
[18] Laughlin, 318 S.W.3d at 699 (citing U.S. Const. art. I, § 8, cl. 17).
[19] Id.
[20] Id. (citing Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 531 (1885)).
[21] Id.
[22] Id. at 699 (citing Surplus Trading Co. v. Cook, 281 U.S. 647, 652 (1930)).
[23] Id.
[24] Id. at 700 (citing Mo. Rev. Stat. § 12.010 (2000)).
[25] Id. (citing Mo. Rev. Stat. § 12.020 (2000)).
[26] Id.
[27] Laughlin, 318 S.W.3d at 700.
[28] Id. In making this argument, the state relied on Missouri Revised Statutes section 541.191(1), which provides that “this state has jurisdiction over an offense that a person commits by his own conduct of another for which such person is legally accountable if: (1) conduct constituting any element of the offense or a result of such conduct occurs within this state . . . .” Id. (citing Mo. Rev. Stat. § 541.191(1) (2000)).
[29] Id.
[30] Id.
[31] Id. at 701.
[32] Id. (quoting State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516 (Mo. 2010) (en banc)).
[33] Id. at 702 (citing Zinna, 301 S.W.3d at 516-17).
[34] Id. at 703.
[35] Id. at 701.
[36] Id. at 703.
[37] Id.
[38] Laughlin, 318 S.W.3d 695.
[39] Id. at 702.

White v. Director of Revenue[1]

2010-08-03T22:02:00.001-05:00

Opinion issued August 3, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri found that the record supported the trial court’s conclusion that the arresting police officer lacked probable cause to arrest Mr. Adam White for driving while intoxicated. The contested issue of probable cause is viewed in the light most favorable to the judgment. Since the government did not request written findings at trial, the trial court could have disbelieved the director of revenue’s (“director”) evidence. Therefore, the trial court’s judgment was not against the weight of the evidence.

I. Facts and Holding

On September 20, 2007, Mr. White’s vehicle was pulled over by a sergeant of the Missouri Highway Patrol for failing to signal when turning.[2] After Mr. White pulled over, the sergeant “noticed a strong odor of alcohol coming from Mr. White” and the presence of empty beer cans in the vehicle.[3]

The sergeant then subjected Mr. White to “field sobriety tests.”[4] Mr. White blew into the sergeant’s breathalyzer and tested positive for alcohol consumption.[5] Additionally, he “exhibited five of six clues indicating intoxication during the horizontal gaze nystagmus test.”[6] Mr. White failed the walk-and-turn test, and the sergeant testified that Mr. White was swaying and had bloodshot eyes.[7] Based on the sergeant’s “experience, training, and observations of Mr. White’s performance of the field sobriety tests,” the sergeant arrested Mr. White for driving while intoxicated.[8]

On cross-examination, the sergeant testified that Mr. White drove over the speed limit while passing him and failed to signal when turning.[9] However, Mr. White was not weaving in the lanes or otherwise driving erratically.[10] He did not stumble out of his vehicle when stopped, and the sergeant did not detect any odor of alcohol coming from the vehicle.[11] The sergeant originally stated that a strong odor of alcohol was coming from Mr. White; however, the sergeant later admitted that, in his written alcohol influence report, he wrote that there was a moderate odor of alcohol coming from Mr. White.[12]

The sergeant also “reluctantly acknowledged that the National Highway Traffic Safety Administration suggests that a person not face the roadway” when undergoing the horizontal gaze nystagmus test, but the sergeant could not remember if Mr. White was facing the roadway during the test.[13] In addition, the sergeant’s answer to a question about his instructions for the one-leg-stand test was different from his direct testimony.[14]

The sergeant’s alcohol influence report was admitted into evidence after he testified.[15] During direct testimony, the sergeant said “his attention was drawn to Mr. White because he was speeding.”[16] However, in the sergeant’s written report, he noted that “Mr. White’s vehicle ‘slowly passed’ his vehicle.”[17] After the director of revenue finished presenting evidence for the state, Mr. White elected not to present any evidence.[18] The trial court ordered the director of revenue to reinstate Mr. White’s driver’s license, which the director appealed.[19]

Mr. White contested whether the sergeant had probable cause to arrest him for an alcohol-related offense.[20] According to the trial court, the director did not prove that the officer had probable cause.[21] On appeal, the director challenged “both the factual and legal determinations of the trial court regarding probable cause.”[22]

On appeal, the director argued that “a prudent, cautious, and trained officer would have probable cause to believe that Mr. White was driving while intoxicated” and, therefore, “the trial court’s judgment [was] against the weight of the evidence.”[23] Since the trial court did not make any findings of fact on the credibility of the officer and the director’s evidence was uncontroverted, the director argued that the Supreme Court of Missouri owed no deference to the trial court’s factual determinations.[24]

II. Legal Background

“Section 302.535 governs judicial review of an administrative suspension or revocation of a person’s license” when it is based on probable cause to believe that the person’s blood alcohol content was at least .08 percent.[25] Subsection (1) permits a person who loses his license under the statute to “request a trial de novo in the circuit court.”[26] The legislature requires the trial to be conducted according to the Missouri rules of civil procedure, and the burden of proof is placed on the director.[27] When a party whose claim was denied has the burden of proof, “the trier of fact has the right to believe or disbelieve that party’s uncontradicted or uncontroverted evidence.”[28] In license revocation cases, pursuant to Rule 73.01(c) of the Missouri Rules of Civil Procedure, a trial court must make written findings only when one of the parties requests the court to do so.[29] If a court does not make written findings, the evidence is considered “in the light most favorable to judgment.”[30]

The director cited to prior cases where Missouri courts did not specifically follow the procedures set forth in the statute.[31] Berry v. Director of Revenue and Reinert v. Director of Revenue, two cases from the Supreme Court of Missouri, were interpreted by the courts of appeals to hold that less deference should be given by appellate courts to an assessment of the evidence made by a trial court.[32] The courts interpreted Reinert to hold that when there is uncontroverted evidence supporting revocation and the “trial court has not specifically found the director’s witness incredible, appellate courts will not presume that the trial judge found a lack of credibility and will not affirm on that basis.”[33] ”Uncontroverted evidence” was used to describe situations where a driver failed to present evidence contradicting the director’s evidence.[34] Consequently, an appellate court could only affirm the reinstatement of driving privileges, when the director’s evidence was uncontroverted, if the trial court made a written finding that a witness lacked credibility.[35] The Supreme Court of Missouri eventually adopted this view.[36]

In Verdoorn v. Director of Revenue, the Supreme Court of Missouri presumed the director’s uncontroverted evidence to be valid and required the driver to rebut the presumption.[37] The Court assigned the burden of producing evidence to the driver and stated that the driver’s “‘rebuttal evidence should challenge the presumption of validity established by the director’s prima facie case.’”[38] However, in the case at hand, the court noted that section 302.535 does not presume that the director’s evidence establishing a prima facie case is true nor does the driver bear the burden to rebut such a presumption.[39] Here, the court said that Verdoorn’s holding is in conflict with section 302.535.[40]

In Guhr v. Director of Revenue, the Supreme Court of Missouri said that the trier of fact is allowed to disbelieve evidence, even uncontradicted evidence.[41] In addition, the court also held that deference is due to a trial court’s assessment of the evidence when the facts are contested.[42] However, no deference is due when the evidence is uncontested because the “issue is legal and there is no finding of fact to which to defer.”[43]

In the present case, the court found that the previously mentioned cases “fail to follow the legislative mandate of section 302 .535.1 to place the burden of proof, including the burden of production of evidence, on the director and to apply the rules of civil procedure.”[44] Accordingly, those cases were overruled to the extent that courts interpreted them to ”create a presumption of validity of the director’s evidence, to place a burden on the driver to produce evidence that controverts or contradicts the director’s evidence,” or to require written factual findings under section 302.535.[45]

A reviewing court defers to the trial court’s assessment of contested evidence.[46] However, no deference is given to the trial court when the evidence is uncontested.[47] Evidence is uncontested when the issue before the court involves only stipulated facts, and there is no issue before the court that involves contested testimony.[48] Additionally, evidence is uncontested when a party admits the basic facts of the opposing party’s case.[49]

When evidence is contested by a factual dispute, the Supreme Court of Missouri defers to the trial court because a trial court is in a better position to judge issues of witness credibility.[50] The duty of the appellate court is to determine whether the trial court’s judgment is supported by substantial evidence, “whether the judgment is against the weight of the evidence,” or “whether the trial court erroneously declared or misapplied the law.”[51] The Supreme Court of Missouri reviews “probable cause determinations de novo under an abuse of discretion standard.”[52]

Inconsistencies in the sergeant’s testimony were pointed out by Mr. White’s cross-examination of the sergeant, which undermined the sergeant’s testimony and the information in the written report.[53] As a result, the director’s evidence was contested, and “the trial court was free to accept or reject any or all of the sergeant’s testimony regarding probable cause.”[54] The Supreme Court of Missouri found that the record supported “the trial court’s conclusion that the sergeant lacked probable cause to arrest Mr. White for violating an alcohol-related offense.”[55] “Therefore, the trial court’s judgment was not against the weight of the evidence.”[56]

III. Comment

The Supreme Court of Missouri more closely adhered to the statutory language of section 302.535 in White than it had in previous cases.[57] The conflicting precedent cited by the court shows that the court has had difficulty in applying this statute for the past decade. This may be due to the fact that the statute is silent regarding the appropriate level of deference given to a trial court’s factual determinations in license revocation cases.[58] However, this case certainly clarifies the issue. When the evidence is contested, a trial court’s determination of the facts is given deference. When the evidence is uncontested, such a determination receives no deference. The difficulty lies in determining whether evidence is contested or uncontested. In White, the driver did not present any evidence at trial, yet the Supreme Court of Missouri held that the evidence was contested because the cross-examination of the sergeant pointed out inconsistencies in his testimony.[59] Therein lies the difference between uncontroverted and uncontested evidence. The director’s evidence can be uncontroverted, yet contested. Therefore, it made sense for the court to abandon Berry and Reinert.[60]

-Drew Weber

[1] No. SC 90400, 2010 WL 3269232 (Mo. 2010) (en banc).
[2] Id. at *1.
[3] Id.
[4] Id. at *2.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at *8.
[21] Id.
[22] Id.
[23] Id. at *3.
[24] Id.
[25] Id. See Mo. Rev. Stat. § 302.535 (2000).
“1. Any person aggrieved by a decision of the department may file a petition for trial de novo by the circuit court. The burden of proof shall be on the state to adduce the evidence. Such trial shall be conducted pursuant to the Missouri rules of civil procedure and not as an appeal of an administrative decision pursuant to chapter 536, RSMo. The petition shall be filed in the circuit court of the county where the arrest occurred. The case shall be decided by the judge sitting without a jury. Until January 1, 2002, the presiding judge of the circuit court may assign a traffic judge, pursuant to section 479.500, RSMo 1994, a circuit judge or an associate circuit judge to hear such petition.”
[26] White, 2010 WL 3269232 at *3.
[27] Id.
[28] Id. at *4 (citing Bakelite Co. v. Miller, 372 S.W.2d 867, 871 (Mo. 1963)).
[29] Id.
[30] Id.
[31] Id.
[32] Id. (citing Berry v. Dir. of Revenue, 885 S.W.2d 326 (Mo. 1994) (en banc); Reinert v. Dir. of Revenue, 894 S.W.2d 162 (Mo. 1995) (en banc)).
[33] Id. See Mathews v. Dir. of Revenue, 8 S.W.3d 237, 238 (Mo. App. 1999); Sitzes v. Dir. of Revenue, 928 S.W.2d 3, 6 (Mo. App. 1996).
[34] White, 2010 WL 3269232 at *5.
[35] Id.
[36] Id. (citing Brown v. Dir. of Revenue, 85 S.W.3d 1, 7 (Mo. 2002) (en banc)).
[37] Id. (citing Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 546 (Mo. 2003) (en banc)).
[38] Id. (quoting Verdoorn, 119 S.W.3d at 546 (emphasis in original)).
[39] Id.
[40] Id.
[41] Id. (citing Guhr v. Dir. of Revenue, 228 S.W.3d 581, 585 (Mo. 2007) (en banc)).
[42] Id.
[43] Id.
[44] Id. at *6.
[45] Id.
[46] Id.
[47] Id. at *7.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
[52] Id. at *9.
[53] Id. at *10.
[54] Id.
[55] Id.
[56] Id. Lastly, Chief Justice Price concurred in the result but declined to join the majority in overruling the established precedent discussed in the case. Id. at *11.
[57] See id.
[58] See Mo. Rev. Stat. § 302.535 (2000).
[59] White, 2010 WL 3269232 at *10.
[60] Id. at *6.

State v. Bateman[1]

2010-08-03T19:21:00.011-05:00

Opinion handed down August 3, 2010
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that there was sufficient evidence to support a finding of deliberation when a defendant had adequate opportunity to terminate the confrontation, previously threatened the deceased, and brought a deadly weapon to the scene of the crime. Additionally, the court held that the trial court did not err in denying the defense’s Batson challenge when it found that the prosecutor’s strike of an African-American juror during voir dire was not racially motivated.

I. Facts and Holding

The State of Missouri charged defendant Tyrone C. Bateman, an African-American male, with first degree murder of his cousin, Miles Bateman, and armed criminal action based on an incident that occurred on March 21, 2005.[2] A few days before the incident in question, Miles had slept over at Tyrone’s house after a night out together.[3] Miles awoke the next morning to find that Tyrone had borrowed his van and some money; Tyrone returned the van without gas, but did not return the money.[4] Consequently, Miles kept a pair of shoes that Tyrone had left in the van until he was able to collect the money that Tyrone had borrowed.[5]

On March 21, 2005, Tyrone came to Miles’ house looking for his shoes.[6] When Miles refused to give back the shoes until Tyrone returned the missing money, the argument turned physical.[7] The two wrestled on the ground until Miles’ mother broke up the fight.[8] Tyrone said to Miles, “‘ . . . [W]hen you get off me, I’m going to hurt you real bad.’”[9] Tyrone returned to his car and drove in reverse down a one way-street to get to his house.[10] He retrieved a shotgun from inside his house and returned to Miles’ house.[11] When he arrived, Tyrone kicked down the front door, shot Miles in the chest, and “drove away exclaiming, ‘I got him. I got him.’”[12] Miles died as a result of his injuries.[13]

The police subsequently searched Tyrone’s house and found a shotgun and shell that matched the gun that had been used to shoot Miles.[14] Tyrone was later apprehended by the police when he was found hiding in an apartment in the closet of a child’s bedroom.[15] Tyrone aggressively resisted arrest and had to be subdued with a Taser.[16]

At trial, Tyrone was convicted of first degree murder and armed criminal action and sentenced to life in prison without parole for first degree murder and a consecutive term of ten years for armed criminal action.[17] He appealed on two grounds, arguing that (1) the evidence was insufficient to allow a jury to find beyond a reasonable doubt that Tyrone deliberated before he shot Miles and (2) the trial court erred in overruling his Batson challenge to the state’s peremptory strike of an African-American venire-person.[18]

Tyrone’s second point on appeal relates to what happened on the second day of voir dire.[19] The prosecutor asked the venire-persons whether they had any thoughts about the previous day’s questions.[20] B.B., a Caucasian venire-person, asked why, if the jury were to determine that there was guilt in the case, they would not be allowed to consider all possible punishment, including the death penalty.[21] Later, the prosecutor inquired of the venire-persons as to whether they could follow the court’s instructions even if they disagreed about what the law is or should be.[22] The prosecutor then specifically addressed B.T., an African-American venire member, with his question.[23] B.T. responded in the affirmative but then inquired about what the prosecutor meant by first degree and second degree and whether there was a harsher sentence based on the different degrees.[24] The prosecutor answered and then asked B.T. again whether he could follow the court’s instructions even if they differed from his personal beliefs, and B.T. responded in the affirmative.[25]

B.T. was not initially included in the prosecutor’s peremptory strikes; however, after a Batson challenge was upheld against one of the prosecutor’s initial strikes, he chose to strike B.T.[26] The defense made a Batson challenge, and the prosecutor explained that he struck B.T. because he showed signs that he might have a more lenient demeanor in the matter at hand or in criminal matters in general.[27] Defense counsel pointed out that venire-person B.B. was similarly situated to B.T. in that he showed initiative by asking why the jury could not consider capital punishment in the case, but yet was not struck by the prosecution.[28] The court denied the Batson challenge and found that the prosecutor’s strike of B.T. was race-neutral.[29]

Upon transfer to the Supreme Court of Missouri, both of Tyrone’s points on appeal were denied and his convictions and sentences were affirmed.[30] The court held that a finding of deliberation by the jury will not be disturbed when there is ample evidence indicating that deliberation occurred.[31] The court also held that the trial court did not err in denying the defense’s Batson challenge as to venire-person B.T. because the prosecutor came forward with “a reasonably specific and race-neutral reason for the strike” and the defense failed to show that the reasons the prosecutor offered were pretext.[32]

II. Legal Background

A. Evidence Sufficient to Support Deliberation

Missouri Revised Statute § 565.020.1 provides that “[a] person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter.”[33] Additionally, “deliberation is defined as ‘cool reflection for any length of time no matter how brief ….’”[34] Furthermore, proof of deliberation must be established through the circumstances surrounding the murder.[35]

When analyzing whether there was sufficient proof of deliberation in the instant case, the Supreme Court of Missouri looked to a plethora of case law relating to what kinds of circumstances tend to point to deliberation.[36] For example, the Missouri Court of Appeals for the Southern District, in State v. Norman, noted that evidence that a defendant had ample opportunity to terminate the crime is sufficient to support an inference of deliberation.[37] The court in the instant case also looked to State v. Overkamp, in which the Supreme Court of Missouri held that when a defendant makes previous threats to kill the deceased, these are admissible to prove deliberation.[38] Finally, the court looked to State v. Stacy, a Missouri Court of Appeals case in which the court noted that the fact that a defendant brought a deadly weapon to the scene of the crime supported a finding that the defendant deliberated prior to acting.[39]

Therefore, there are a wide variety of circumstances and factors that Missouri courts have held are sufficient to support a finding of deliberation. In the instant case, the Supreme Court of Missouri found that there was enough evidence to support the jury’s finding that the defendant deliberated before committing the murder based on several of the factors mentioned above.[40]

B. Batson Challenge

In 1986, the United States Supreme Court decided Batson v. Kentucky, which fundamentally changed how courts looked at challenges regarding racially motivated peremptory strikes.[41] Batson involved an African-American man that was indicted for second degree burglary and receipt of stolen goods in Kentucky.[42] During voir dire, the prosecutor exercised his peremptory challenges to strike all of the African-American venire members from the jury, resulting in an all white jury.[43] Subsequently, the defendant’s attorney moved to discharge the jury, stating that the prosecutor’s striking of all the African-American venire members violated the defendant’s Sixth and Fourteenth Amendment rights to a “jury drawn from a cross section of the community.”[44] However, the trial judge denied the motion, finding that “the parties were entitled to use their peremptory challenges to ‘strike anybody they want to.’”[45]

In State v. Parker, the United States Supreme Court established the procedure for a Batson challenge.[46] First, a defendant must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to strike venire members of defendant’s racial group.[47] Second, after the defendant makes a prima facie showing of discrimination, the burden then shifts to the prosecutor to give a racially neutral explanation of the strike or strikes in question.[48] Finally, the defendant must then show that the prosecutor’s explanations are pretextual and that in fact the prosecutor’s strikes were racially motivated.[49]

Several years after Batson, the Court established, in Powers v. Ohio, that while criminal defendants clearly have standing to assert the violation of their own rights regarding racially motivated peremptory strikes, they also have standing to assert the violation of the equal protection rights of excluded venire members.[50]

A showing of the fact that similarly situated venire-persons were treated differently is one of the most common ways that defendants establish that the prosecutor’s racially neutral reasons are actually pretextual.[51] However, this kind of showing is not required in order for a defendant to make a successful Batson challenge.[52] For example, in State v. McFadden (McFadden II), the Supreme Court of Missouri held that the prosecutor’s explanation that an African-American venire member had “crazy-looking red hair” was pretextual even though there was not a similarly situated venire-person that was treated differently.[53]

Other factors that the courts have looked to when determining whether the prosecutor’s proffered reasons were pretext are “[t]he degree of logical relevance between the proffered explanation and the case to be tried in terms of the kind of crime charged, the nature of the evidence to be adduced and the potential punishment if the defendant is convicted . . . .”[54]; the prosecutor’s past patterns of practice regarding his or her use of peremptory challenges and his or her proffered reasons for them[55]; the demeanor of the prosecutor while engaging with members of the jury pool;[56] and the demeanor of the venire members that are struck by the prosecutor.[57]

Therefore, when examining whether a prosecutor’s proffered explanations for his or her peremptory challenges are pretextual or not, courts will look at a variety of factors beyond whether or not a similarly situated venire-person was treated differently. In the instant case, the Supreme Court of Missouri held that while the presence of a similarly situated venire-person was not necessary for a successful Batson challenge, none of the other factors that tend to point to pretext were present, and thus the defendant failed to meet his burden.[58]

III. Comment

The Supreme Court of Missouri’s holding in State v. Bateman exemplifies the notion that while courts in the United States have come a long way in terms of working to minimize racial bias during jury selection, there are still times when courts get it wrong and a racially motivated peremptory strike is permitted to stand. Judge Richard B. Teitelman filed a very persuasive separate dissenting opinion in the instant case and pointed to several factors the majority ignored in reaching its holding regarding the Batson challenge.[59]

First, the prosecutor’s reason for striking B.T. was that B.T. took the initiative to ask about the differing degrees of murder, which the prosecutor claimed indicated that B.T. had a tendency toward leniency on matters involving crime and punishment.[60] However, B.T. only asked the question after the prosecutor directly asked him a question.[61] Thus, the prosecutor’s contention that B.T. took initiative is simply false and seems to point to an after-the-fact justification rather than a legitimate race neutral explanation.[62]

Secondly, the prosecutor only struck B.T. from the venire panel after he had attempted to strike another African-American juror and the court sustained the defendant’s Batson challenge as to that venire-person.[63] This fact alone speaks to the fact that the prosecutor had a practice of racially motivated peremptory strikes in the very same trial which discredits the reason that he proffered for his striking of B.T. Therefore, when the only reason the prosecutor provides is based on an inaccurate factual basis and he has a history of racially motivated strikes during that same voir dire, the court has an obligation to uphold the defendant’s Batson challenge.

The court’s holding in Bateman is an all too vivid reminder that racial bias still exists in jury selection today. It is important that in close cases, like the instant one, courts thoroughly consider all of the facts and err on the side of caution with regards to Batson challenges in order to ensure that courts continue to progress forward in the struggle to eliminate such racial bias.

-Lindsay A. Ponce

[1] No. NC90528, 2010 WL 3279766 (Mo. 2010) (en banc).
[2] Id. at *4.
[3] Id. at *2.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at *4.
[18] Id. at *1.
[19] Id. at *2.
[20] Id. at *2-3.
[21] Id. at *3.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id. at *3-4.
[28] Id. at *4.
[29] Id.
[30] Id. at *11.
[31] Id. at *6.
[32] Id. at *9.
[33] Mo. Rev. Stat. § 565.020.1 (West 2010).
[34] Bateman, 2010 WL 3279766 at *5 (quoting Mo. Rev. Stat. § 565.020(3) (West 2010)).
[35] Id. (citing State v. O’Brien, 857 S.W.2d 212, 218-19 (Mo. 1993) (en banc)).
[36] Id. at *5-6.
[37] Id at *5 (citing State v. Norman, 243 S.W.3d 466, 470 (Mo. App. S.D. 2007)).
[38] Id. (citing State v. Norman, 646 S.W.2d 733, 737 (Mo. 1983)).
[39] Id. at *6 (citing State v. Stacy, 913 S.W.2d 384, 387 (Mo. App. W.D. 1996) (defendant brought a knife along to aid in a robbery that resulted in stabbing the victim fourteen times)).
[40] Id.
[41] 476 U.S. 79 (1986).
[42] Id. at 82.
[43] Id. at 83.
[44] Id.
[45] Id.
[46] Bateman, 2010 WL 3279766 at *7 (citing State v. Parker, 836 S.W.2d 930, 939 (Mo. 1992) (en banc)).
[47] Id.
[48] Id.
[49] Id.
[50] Id. (citing Powers v. Ohio, 499 U.S. 400, 409-11 (1991)).
[51] Id. (citing State v. McFadden, 191 S.W.3d 648, 651 (Mo. 2006) (en banc)).
[52] Id. (citing State v. McFadden, 216 S.W.3d 673 (Mo. 2007) (en banc)).
[53] McFadden, 216 S.W.3d at 676.
[54] Id. at *8 (quoting State v. Parker, 836 S.W.2d 930, 940 (Mo. 1992) (en banc)).
[55] Id.
[56] Id. (citing State v. Antwine, 743 S.W.2d 51, 65 (Mo. 1987) (en banc)).
[57] Id. (citing Parker, 836 S.W.2d at 940).
[58] Id. at *10-11.
[59] Id. at *11-12 (Teitelman, J., dissenting).
[60] Id. at *11.
[61] Id.
[62] Id.
[63] Id.

School District of Kansas City v. State[1]

2010-08-03T18:09:00.009-05:00

Opinion issued August 3, 2010
Link to Mo. Sup. Ct. Opinion

In 2005, the Missouri legislature permitted charter schools to become local education agencies within public school districts. School District of Kansas City has a bold impact on state funding to public schools but, because of the law’s language, only affected the Kansas City Missouri School District (“KCMSD”). The KCMSD and three Missouri taxpayers brought suit against the state, arguing that the law violated the Missouri Constitution by allowing transfer of funds from KCMSD to the Kansas City charter schools and by creating an unfunded mandate for school districts to uphold. After a non-jury trial, the circuit court of Cole County rejected KCMSD’s claims and the Supreme Court of Missouri affirmed.

I. Facts and Holding

The Missouri General Assembly enacted the Charter Schools Act in 1998, which authorized school boards, colleges, and universities to sponsor independent public charter schools within metropolitan school districts, including the KCMSD.[2] These charter schools are hybrid institutions, combining elements of public and private education; however, importantly, these schools are financed by tax dollars.[3] In 2005, the state legislature changed the funding mechanism for charter schools, permitting such schools to declare themselves local education agencies.[4]

Prior to this amendment, Missouri’s school funding formula had required the state to disburse monies for charter schools to the local school district, which “acted as the disbursal agent.”[5] When the charter schools within the KCMSD became local education agencies, the state began disbursing “approximately the same per-pupil amount that the [KCMSD]” had been distributing under the prior law. At the same time, the state reduced the payments to the KCMSD by that amount.[6] Importantly, “[t]he act [did] not require any [of the KCMSD’s] local tax revenue to be sent to charter schools [in the district].”[7]

At the time of the amendment’s implementation, only the KCMSD was affected by these modifications.[8] Believing that the new disbursal system rendered the Charter Schools Act unconstitutional, the KCMSD and its taxpayers argued that (1) permitting the transfer of local property tax dollars to charter schools violated article X, section 11(g) of the Missouri Constitution; (2) permitting charter schools to become local education agencies created a unfunded new program, in violation of article X, sections 16 and 21 of the Missouri Constitution; and (3) reducing state funding to KCMSD siphoned monies from the district’s existing programs, violating article X, sections 16 and 21 of the Missouri Constitution.[9] The last two counts referred to sections of the Missouri Constitution collectively known as the “Hancock Amendment,” which prohibits the state from “requiring any new or expanded activities [of local education agencies] . . . without full state financing” or “reducing the state financed proportion of the costs of any existing activity or service required” of those agencies.[10]

Because this case involved the constitutionality of a state statute, the Supreme Court of Missouri reviewed the trial court’s dismissal of the KCMSD’s claims de novo, but gave deference to the trial court’s determination of the evidentiary issues.[11] The court addressed each of the KCMSD’s three arguments, affirming the judgment of the lower court on all three counts.[12] First, the court held that the act as amended did not violate article X, section 11(g) of the Missouri Constitution because (1) no local money is actually transferred from the KCMSD to the district’s charter schools; (2) the constitution does not prohibit the legislature from considering the amount of local taxes raised in the KCMSD when determining state aid to the district; (3) section 11(g) allows the KCMSD to levy local taxes at a rate that benefits “school purposes of the district,” which include charter school support; and (4) the KCMSD transferred funds to charter schools for seven years prior to the suit without complaint and sponsored two charter schools – a non-determinative, but very persuasive, fact.[13]

Second, the court held that the Hancock Amendment[14] did not invalidate the amended law because (1) the KCMSD did not lose its local tax revenue to charter schools and (2) the law did not mandate the creation of charter schools, nor did it reduce state funding beyond an allowable amount.[15] As a result, the court could not rule in favor of the KCMSD or the individual taxpayers.

II. Legal Background

Charter schools and the funding mechanism to support them were first enacted in Missouri in 1998.[16] Under the original law, charter schools were beholden to their local school districts for money, including state funding calculated under a devised formula and all other state and federal aid owed to each individual child.[17] In 2005, this funding formula was changed to reflect a new class of charter schools: those that elected to become local education agencies.[18] Instead of the district disbursing the money as it had in the past, the state now pays local education agency charter schools directly under a new formula and “then reduces the state’s payment to the [local] district for district-controlled schools in amounts equal to the local effort component of the formula.”[19] This reduction, and the resulting formula, is the critical issue in this case.

A. Article X, Section 11(g) of the Missouri Constitution

The same year that charter school legislation made its way through the Missouri Legislature, section 11(g) of the Missouri Constitution was also ratified.[20] The section targeted the KCMSD and its operating budget, allowing the establishment of a levy “for school purposes for the district.”[21] Because of the special construction, the KCMSD argued that the revenue generated under the local tax was intended to serve the needs “of the KCMSD itself . . . [not] the students of the district whether attending KCMSD schools or other public schools of the district.”[22] Under such construction, KCMSD believed that any transfer of funds raised by their operating levy would be impermissible.[23]

The court first made clear that, in interpreting constitutional language, it must respect the “intent of the voters who adopted the Amendment” through a “broad and liberal” construction.[24] Second, the court looked to the constitutional spirit of the charter school law.[25] The constitution does not require state funding to be specially allocated to certain school districts, and it certainly does not devise a formula to “determine the amount of state funds to send to the KCMSD or to other public schools in the district, including charter schools.”[26] As a result, the legislature is free to consider local levied money when determining how much it wishes the state to contribute and “whether students in the district are being educated by public charter schools rather than by the KCMSD.”[27] Similarly, section 11(g) also does not expressly prohibit the distribution of levied local money to other public schools in the KCMSD, including charter schools.[28] Without a more articulated intent that section 11(g) was enacted to prevent the transfer of KCMSD’s local tax monies to other public schools within the district, the court could not invalidate the charter school law as amended.[29]

B. The Hancock Amendment

The Hancock Amendment, sections 16 through 24 of article X of the Missouri Constitution, prohibits the state legislature from enacting any law that would effectively create an unfunded mandate in Missouri.[30] The Amendment can be violated “either if the state requires a new or increased activity or service of a political subdivision or if the political subdivision experiences increased costs in performing an existing activity or service without receiving additional funding from the state.”[31] In this case, the court looked to three Missouri cases.[32]

First, in Neske v. City of St. Louis, the court held that no unfunded mandate existed merely because it had become more expensive for the city to fund its public retirement systems.[33] Indeed, a violation of the Hancock Amendment had not occurred because no law or formula had been adopted that would cause an increase in costs.[34] Second, in Rolla 31 School District v. State, the state’s department of education mandated that all school districts were to provide special education services to preschoolers, which had never been done before.[35] The court found that imposing such a requirement without providing the necessary funds to successfully carry out the mandate was undoubtedly a Hancock violation.[36]

The court likened the KCMSD’s situation to that of Neske, reasoning that the mere authorization of charter schools does not rise to the level of a “mandate” and therefore does not require any school district to provide new or additional services. As the court noted, “[b]efore the act, the KCMSD (and other public school districts) were required to provide a free public education to all eligible pupils . . . [and] [t]his requirement remains.”[37]

Third, the court looked to Fort Zumwalt School District v. State to determine whether the amended act constituted an increase in mandated costs without provision of additional monies.[38] In that case, the court required the plaintiffs to show evidence of not only a mandated program but also “‘the ratio of state to local spending for the mandated program in that year’ . . . and ‘costs of the mandated program [and ratios] in each subsequent year.’”[39] These costs, as calculated, “‘may not include any discretionary expenditures [paid out by the district] . . . beyond the state mandate.’”[40] In weighing the evidence, the court found the KCMSD’s expert testimony woefully lacking in proof of increased mandated costs and, as a result, “if expenditures are not mandated by the state, they are not relevant for Hancock purposes.”[41]

III. Comment

The Supreme Court of Missouri must carefully construe the statutory language at issue, presuming the constitutionality of the legislative act but still ensuring that each act is properly scrutinized. In cases involving education law, the court has been particularly vigilant in its presumption of constitutionality, as exemplified in both School District of Kansas City v. State and an earlier education case, Committee for Educational Equality v. State.[42]

In Committee for Educational Equality, the plaintiffs challenged Missouri’s state funding formula for public schools, arguing that the calculations resulted in an “unconstitutionally disparate and inadequate” educational system.[43] Deferring to the judgment of the legislature, the court held that the foundation formula was compatible with the Missouri Constitution, even though, in practice, it did fund schools at very different levels.[44]

Similarly, in School District, the court scrutinized the constitutionality of a Missouri law that allowed charter schools to receive funding directly from the state, while, at the same time, deducting state payments to the district in which the charter school is located.[45] The foundation formula devised by the state to fund all public schools determines the reduction by taking into account the district’s local tax levy revenues.[46] This has the effect, as was the case for the KCMSD, of providing less state funding to the district than had been provided before the charter school law change, because the state can be assured that the KCMSD’s local money will make up for the shortfall. While the court certainly adheres to the exact words of the constitution, the precedent of such a strict interpretation can lead to inequitable distribution of public funds.

As the court stated previously in Committee for Educational Equality, “Missouri’s [constitutional] education article contains neither a free-standing ‘adequacy’ requirement nor an equalizing mandate.”[47] Although School District does not address the exact article referenced in Committee for Educational Equality, there is little doubt that, in both cases, the court reflects the same sentiment: the Missouri Constitution guarantees all children a right to an education, but not an economically equal education.[48]

-Brianna L. Lennon

[1] 317 S.W.3d 599 (Mo. 2010) (en banc).
[2] Id. at 602. (citing Mo. Rev. Stat. § 160.400 (2009)).
[3] Chester E. Finn et al., Charter Schools in Action: Renewing Public Education. 15 (2001).
[4] School District, 317 S.W.3d at 603.
[5] Brief of Respondent at *15 (citing Mo. Rev. Stat. § 160.415.2(4) (2000)).
[6] Id. at *16-17.
[7] School District, 317 S.W.3d at 603.
[8] Id. at 605.
[9] Id. at 603-04. (citing Mo. Const. Art. X §§ 11(g), 16, 21).
[10] Id. at 610 (internal citations omitted).
[11] Id. at 604.
[12] Id. at 604-10.
[13] Id.
[14] See infra, note 9. The amendment also contains a provision that only grants individual taxpayers the standing to bring Hancock claims. Id. at 610. In this case, the KCMSD was barred from challenging the law under Hancock, so the court permitted only the three taxpayers to bring these claims. Id.
[15] Id. at 610-12.
[16] Id. at 602.
[17] School District of Kansas City v. State, No. 06AC-CC00639 at *3-4 (June 29, 2009) (citing Mo. Rev. Stat. §§ 160.415.2(1)-(2) (2000)). The original law calculated the per pupil payments as the “product of the equalized, adjusted operating levy for school purposes for the pupils’ district of residence . . . times the guaranteed tax base per eligible pupil . . . times the number of the districts resident pupils attending the charter school.” Mo. Rev. Stat. § 160.415.2(1) (2000).
[18] Id. at *4.
[19] Id. at *5. In essence, the state now pays the charter schools within the KCMSD directly and offsets those payments by reducing the KCMSD schools’ funds so that the state does not pay twice for the same students.
[20] It is important to note that the two pieces of legislation were enacted concurrently because “a contemporaneous legislative construction is entitled to and will be given serious consideration by the court” when interpreting statutes. Id. at 608. (internal citation omitted). One argument of the KCMSD is that section 11(g) could not have presumed to encompass charter schools because they were not yet in existence in 1998, but the coincident passage of both laws shows otherwise. Id.
[21] School District of Kansas City v. State, 317 S.W.3d 599, 604 (Mo. 2010) (en banc). The court construes “school purposes for the district” to adhere with “their plain and ordinary meaning,” in accordance with past precedent. Id. at 607 (citing Rathjen v. Reorganized Sch. Dist. R-II, 284 S.W.2d 516, 524 (Mo. 1955) (en banc)). Because charter schools are public schools by definition, funding them supports the spirit of the constitution’s language. Id. at 608.
[22] Id. at 605.
[23] Id. The court found that KCMSD admitted that no direct transfer of local monies ever occurred, nor did the 2005 changes to the charter school law provide for that direct transfer. Id. at 605. As a result, the court analyzes only the potential of “improper indirect transfer of funds.” Id.
[24] Id. (citing Keller v. Marion County Ambulance Dist., 820 S.W.2d 301, 302 (Mo. 1991) (en banc) (internal citations omitted); State Hwy. Comm’n v. Spainhower, 504 S.W.2d 121, 125 (Mo. 1973) (internal citations omitted).
[25] Id. at 606.
[26] Id.
[27] Id.
[28] Id. at 606-07.
[29] Id.
[30] Id. at 610.
[31] Id. at 611.
[32] Id. at 610-11.
[33] Id. at 611. (citing Neske v. City of St. Louis, 218 S.W.3d 417, 422 (Mo. 2007) (en banc)).
[34] Id.
[35] Id. (citing Rolla 31 Sch. Dist. v. State, 827 S.W.2d 1 (Mo. 1992) (en banc)).
[36] Id.
[37] Id.
[38] Id. at 611-12. (citing Fort Zumwalt Sch. Dist. v. State, 896 S.W.2d 918, 922 (Mo. 1995) (en banc)).
[39] Id. (quoting Fort Zumwalt Sch. Dist., 896 S.W.2d at 922).
[40] Id. (quoting Fort Zumwalt Sch. Dist., 896 S.W.2d at 922).
[41] Id. at 613.
[42] School District, 317 S.W.3d at 599; Comm. for Educ. Equality v. State, 294 S.W.3d 477 (Mo. 2009) (en banc).
[43] Comm. for Educ. Equality, 294 S.W.3d at 481.
[44] Id. at 482. The Committee for Educational Equality argued that the funding formula violated the equal protection clause, the Hancock Amendment, and article IX of the Missouri Constitution because the state was required to provide an equitable education to all Missouri students. Id. at 488-90. The court, however, held that the foundation formula passed constitutional muster because “Missouri’s [constitutional] education article contains neither a free-standing ‘adequacy’ requirement nor an equalizing mandate.” Id. at 490.
[45] School District, 317 S.W.3d at 601.
[46] Id. at 602, 606.
[47] Comm. for Educ. Equality, 294 S.W.3d at 490.
[48] School District, 317 S.W.3d 599; Comm. for Educ. Equality, 294 S.W.3d 477.