Case Summary for September 5, 2002

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Case Summary for September 5, 2002

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Thursday, September 5, 2002

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SC84229
State ex rel. Amy M. Rodriguez v. Patricia Cornell, Superintendent
Audrain and Jackson counties
Appropriateness of guilty plea

Pursuant to a plea bargain, Amy Rodriguez pled guilty to three counts of statutory rape for having sexual intercourse with her sixth-grade student. Prior to the plea and sentencing, Rodriguez' attorney advised her she possibly could be released after 120 days pursuant to the callback provision of section 559.115, RSMo. The court sentenced Rodriguez to three concurrent prison sentences of 10 years each, pursuant to section 559.115. The judge ordered Rodriguez released pursuant to the call back provision, and the state filed its objections. A week later, the court vacated its release order and ordered Rodriguez to remain in custody of the Missouri department of corrections. Rodriguez then sought post-conviction relief pursuant to Rule 24.035, but her motion was denied for being filed out of time. She seeks habeas corpus relief from this Court.

Rodriguez argues she was denied effective assistance of counsel because her attorney advised her she could be released after 120 days. She contends the trial court violated her due process rights when it sentenced her, because it lacked jurisdiction to do so. She claims she also was deprived of her due process rights when the state failed to oppose her release pursuant to section 559.115 at either her guilty plea or her sentencing. Rodriguez argues a writ of habeas corpus is the proper remedy in this case.

Patricia Cornell, the superintendent of the Women's Eastern Reception and Diagnostic Center, where Rodriguez is being held, responds that because Rodriguez did not litigate her claims about the lawfulness of her guilty plea in a timely Rule 24.035 motion, this Court should not review her claims now. Cornell argues Rodriguez' claims are meritless because her guilty plea was proper.

SC84290
Ellen Keisker, et al., and Trinity Universal Insurance Company v. Beatrice Farmer, et al.
St. Louis City
Insurer's rights to recovery under subrogation and assignment theories

In December 1997, two vehicles crashed into a restaurant in St. Louis city. One vehicle was a St. Louis city sheriff's department van operated by deputy Harold Beck. The other was operated by Beatrice Farmer. In January 1998, building owner Ellen Keisker sued for damage to the structure, Lee Hinds sued for personal injuries and restaurant operator Super Sandwich Shop, Inc., sued for loss of business. All the claims were filed against Farmer, although Beck and the city were added as defendants in June 1998 and the sheriff's department was added as a defendant in October 1998. Super Sandwich's insurer, Trinity Universal Insurance Company, ultimately paid the sandwich shop nearly $141,610 under the insurance policy. In September 1999, Trinity sought to intervene on the basis of its subrogation rights, which the court denied. Keisker's claims were settled, and in November 1999, Farmer settled the claims against her and was dismissed out of the suit. That same month, Trinity filed a separate cause of action agaist the city and other defendants, alleging that Super Sandwich Shop had assigned its rights to sue to Trinity. The court denied the city's motion to consolidate the actions, and in January 2000, the city, sheriff's department and Beck filed an interpleader action admitting liability and offering to pay the statutory $100,000 maximum into the court's registry. The court ruled in Trinity's favor, finding that Trinity was entitled to the $100,000 because it had received an assignment of Super Sandwich's cause of action under the policy. Keisker appeals.

Keisker argues the court erred in finding the insurance policy unambiguously created an assignment of Super Sandwich's cause of action because the policy's language creates a subrogation right, not an assignment, and any ambiguity must be construed against the insurer. She contends the policy's language cannot be construed as an assignment because the policy permits Super Sandwich to retain the right to waive claims against certain parties. She claims the pleadings, facts and exhibits Trinity filed at first are conclusive proof that Trinity and its attorneys first interpreted the policy language as creating a right of subrogation, not an assignment. Keisker argues Trinity should be estopped from asserting the assignment of rights theory. She contends the evidence shows Trinity asserted subrogation rights for nearly two years, Super Sandwich relied on the subrogation assertion by initiating and maintaining its lawsuit and Super Sandwich was damaged by its reliance on Trinity's asserted subrogation rights.

Trinity responds that the court properly awarded it the full $100,000 in the court's registry because the insurance policy unambiguously transferred Super Sandwich's rights to Trinity. It argues the insurance policy supported an assignment even though Super Sandwich was allowed to waive its rights against certain parties because such waiver is allowed only until the loss is paid. Trinity contends it was not estopped from asserting that Super Sandwich's rights were assigned at the same time it asserted that its rights were subrogated because these are mutually consistent theories of recovery, and Super Sandwich did not rely to its detriment on Trinity's assertions. Trinity further responds that, even if its right to recover was based only on subrogation, it was entitled to recover the $100,000 in payments immediately from the parties.

SC84282
State of Missouri v. Troy Marlowe
Cape Girardeau County
Challenge to trial error; sufficiency of evidence to support convictions

In November 1999, Troy Marlowe and others decided to steal anhydrous ammonia. They took methamphetamine intravenously and then went to a local co-op store selling farm supplies. State highway patrol trooper Aaron Harrison was staking out the same co-op that night because of a recent rash of anhydrous ammonia thefts there. Shortly after Marlowe began stealing anhydrous ammonia, Harrison sought backup from Cape Girardeau county police. Marlowe attempted to flee in a van. He hit Harrison, who swung into the van. Harrison and Marlowe fought. Marlowe jumped out of the van and fled but was arrested after continuing to resist arrest. Following a jury trial, Marlowe was convicted of misdemeanor third-degree assault on a law enforcement officer, felony resisting arrest, felony unlawful use of a weapon and misdemeanor attempting to steal anhydrous ammonia. The court found Marlowe to be a prior and persistent offender and sentenced him to concurrent sentences of six months in jail for the misdemeanors and 10 years in prison for the felonies.

Marlowe appeals, arguing the court should have sustained his Batson challenge to the prosecutor's striking of a venireperson because the prosecutor's reasons for striking this potential juror were pretextual and based on a racial motive. Marlowe contends the evidence is not sufficient to support a felony conviction for resisting arrest because the trooper mistakenly thought he was making an arrest for felony stealing, not a misdemeanor attempt to steal. He claims the court erred in rejecting his instruction that he resisted arrest only by flight rather than use of physical force because the jury acquitted him of all the alleged misconduct the state relied on to argue that he used or threatened to use physical force. Marlowe also argues evidence that he had used methamphetamine was not relevant to the crimes with which he was charged, and the court's error in not excluding this evidence prejudiced the outcome of his trial. Marlowe contends there was insufficient evidence to prove he carried a concealed weapon because the trooper was not in a position to see Marlowe and could not tell whether he was concealing a weapon.

The state responds that the court properly denied Marlowe's equal protection objection to the prosecutor's peremptory strike of the venireperson because the prosecutor gave race-neutral explanations for the strike and Marlowe failed to prove these explanations were incredible. The state argues the evidence was sufficient for a reasonable juror to find that Marlowe resisted arrest. It contends the court properly refused Marlowe's instruction regarding the resisting arrest count because the undisputed evidence showed that Marlowe used or threatened the use of physical force in resisting his arrest. The state claims that the court did not abuse its discretion in admitting evidence that Marlowe used methamphetamine during his trip to the co-op. It argues the evidence was admissible to provide a complete picture of the crime and was admissible to show motive to steal anhydrous ammonia, and Marlowe has not shown he was prejudiced by its admission. The state further responds that the evidence was sufficient to prove Marlowe was carrying a concealed weapon because he put a fully loaded .25 caliber pistol in the pocket of his coat.

Marlowe's brief is not available in electronic form.

SC84107
Missouri Hotel and Motel Association, etc., et al., Associated Industries of Missouri v. City of St. Louis, et al.
St. Louis City
Preemption of city living wage law; constitutionality of state statute

In August 2000, St. Louis city voters approved a "living wage" ordinance compelling all persons who contract with or receive any type of economic development aid from the city to pay their employees at or above a minimum living wage ranging from $8.84 to $10.76, as prescribed in the ordinance. Associated Industries of Missouri, which represents businesses of all types in the city, filed suit asserting the living wage ordinance violates section 67.1571, RSMo, which prohibits local governments from imposing a minimum wage above the state minimum wage, and is unconstitutional. In November 2000, court granted a temporary restraining order enjoining enforcement of the ordinance. In January 2001, the court permitted numerous parties, including Living Wage Campaign, to intervene. The court held that parts of the ordinance were preempted by state law, were unconstitutionally vague and unlawfully created a private right of action. The court determined that these portions of the ordinance could not be severed. The court also held that section 67.1561 was invalid. The court denied the city's motion to amend the judgment, and Associated Industries appeals. The city and Living Wage Campaign cross appeal.

Associated Industries argues the court erred in holding that section 67.1571 violates state constitutional procedural enactment provisions because such claims are time barred. It contends the court should not have permitted the claims that section 67.1571 is unconstitutional to proceed. It argues the claims were not raised in a timely manner and were not raised until the close of evidence below, which prevented Associated Industries fair notice and the opportunity to respond. It also contends section 67.1571 is not unconstitutional because it did not add any new or additional subjects to the bill in which it was enacted.

The city and Living Wage Campaign respond that constitutional challenges to section 67.1561 were not barred by the statute of limitations. They argue no person was aggrieved by the section until the St. Louis living wage ordinance was enacted and Associated Industries sought to block the ordinance's enforcement by involving section 67.1561. They contend the court properly permitted the constitutional challenge to section 67.1561 because this case is procedurally unusual and this defense was raised at the earliest possible time. They claim Associated Industries had fair notice and sufficient opportunity to respond to this challenge. The city and Living Wage Campaign further respond that section 67.1561 violated the state constitution because it added provisions outside the scope of the title, subject and purpose of the bill.

Several organizations, including the National Lawyers Guild, filed a brief as amici curiae. They argue cities like St. Louis, drawing on a long history of wage legislation throughout the country, are exercising their power to protect low-income working people against economic hardship caused, in part, by erosion of the federal minimum wage, by adopting their own living wage laws. They contend recent economic research suggests that living wage laws can raise the living standards for low-income workers without risking job loss. They also claim the faith community and leading anti-poverty groups endorse living wage laws.