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Case Summary for September 6, 2012

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.


Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from access.adobe.com.) These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.



DOCKET SUMMARIES
SUPREME COURT OF MISSOURI
9 a.m. Thursday, Sept. 6, 2012

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SC92159
City of St. Louis and Francis G. Slay, et al. v. State of Missouri
Cole County
Residency of municipal employees
Listen to the oral argument: SC92159.mp3
The state was represented during arguments by General Counsel Ronald R. Holliger of the attorney general's office in Jefferson City, and the city was represented by Michael A. Garvin of the city counselor's office in St. Louis.

Senate Bill No. 739, which took effect in August 2010, exempts municipal employees from the requirement that they reside in the geographic area of the area in which they are employed as a condition of employment. The bill allows residence outside the area if the only public school available within the department’s geographic area is unaccredited or provisionally accredited and if the employee remains within a one-hour response time zone. The St. Louis city charter requires its municipal employees to reside in the city as a condition of work. The city, its mayor, a member of the city’s civil service commission and a city employee filed a petition alleging that the bill violates the equal protection clause of the 14th Amendment to the United States Constitution as well as certain provisions of the Missouri Constitution: article I, section 2, also regarding equal protection; article III, section 40, regarding special legislation; and article VI, section 22, regarding the powers of charter cities. The trial court found the bill violated article VI, section 22 because it encroached on charter city powers as well as the equal protection clauses because the bill’s goals were not reasonably related to improving public education or fire protection services. The trial court awarded summary judgment to the city regarding the bill’s encroachment on charter city powers and equal protection claims and to the state regarding whether the bill is a general or special law. The state appeals, and the city cross-appeals.

State’s appeal

The state argues the trial court erred in finding SB 739 unconstitutional under article VI, section 22. It contends the trial court misinterpreted and misapplied the law in finding the bill encroached on powers reserved for charter cities. The state asserts the bill also should have been found constitutional under article I, section 2 because the bill reasonably is related to state’s interests in fire protection services and the quality of public education.

The city responds that the circuit court correctly found the bill was unconstitutional under article VI, section 22 because it encroached on powers reserved for charter cities. It contends that the state conceded at trial that the St. Louis charter’s residency requirement was a qualification for employment. The city further asserts the bill does not fall under the police powers reserved to the state. It argues that municipal employment qualifications are not included in the legislature’s powers under article VI, section 22. The city contends the circuit court correctly found the bill invalid under the Missouri and United States constitutions’ equal protection clauses. It asserts the classification contained in the bill is not rationally related to improving public education or improving fire protection services.

City’s cross- appeal

The city argues that the trial court erred in granting summary judgment to the state on the issue of whether the bill constitutes a special law because there are disputed factual issues. It contends the bill would create a special law to which a general law could apply instead because the bill specifically is tailored to the city of St. Louis. The city asserts summary judgment was improper because the state failed to meet its burden of showing substantial justification for a special law. It argues the state failed to prove it was entitled to summary judgment on all of the issues the state alleges. The city contends the state failed to prove, as a matter of law, that the bill is unconstitutional on the ground that it is a local law regulating the affairs of the city by changing the charter requirements for municipal employment. The city also asserts the state failed to prove, as a matter of law, whether the state law creates a special class of municipal employees afforded rights and privileges to which other city employees are not entitled.

The state responds that the trial court properly granted it summary judgment regarding whether the bill was considered a special law and that article III, section 40 of the Missouri Constitution does not prevent the legislature from enacting constitutional general laws. It contends the bill’s effect on charter residency requirements does not violate the Missouri Constitution. The state asserts the bill will not limit or fix the powers of the city’s civil service commission. The state argues the bill falls within the scope of the police powers reserved to the state. The state contends the bill rationally is related to the state’s interest in quality public education. It also asserts that allowing fire department employees to live outside of the district in which they work is rational. The state argues it is not within this Court’s power to decide whether the legislature should have done something different.

Friend of Court brief

The International Association of Fire Fighters argues, as a friend of the Court, that the trial court erred in granting the city’s motion for summary judgment. It contends the bill is constitutional under article VI, section 22 because the change to residency requirements does not create or fix the powers, duties or compensation of municipal employees. The association asserts the bill does not violate the equal protection provisions of article II, section 4 or the 14th Amendment. It argues the bill creates a rational classification of fire department employees to advance legitimate state purposes of public education and fire protection improvements under the rational-basis test. The association contends charter cities still will have the ability to make residency restrictions for most municipal employees.

SC92159_State_first_brief.pdfSC92159_City_of_St_Louis_first_brief.pdfSC92159_State_second_brief.pdfSC92159_City_of_St_Louis_second_brief.pdf

SC92159_International_Assoc_of_Fire_Fighters_amicus_brief.pdf


SC92257
State of Missouri v. Larry W. Wright
Stoddard County
Unlawful use of a weapon
Listen to the oral argument: SC92257.mp3
Wright was represented during arguments by Kent Denzel of the public defender's office in Columbia, and the state was represented by Dora A. Fichter of the attorney general's office in Jefferson City.

Larry Wright was convicted of unlawful use of a weapon after officers discovered a firearm on him following arrest for charges of forcible rape, armed criminal action and felonious restraint. The jury found Wright guilty only on the charge of unlawful use of a weapon and sentenced him to four years imprisonment. Wright appeals.

Wright argues the trial court erred by overruling his motion for judgment of acquittal after all of the evidence was submitted. He contends conviction for unlawful use of a weapon violated his right to due process under article I, section 10 of the Missouri Constitution and the fourteenth amendment of the United States Constitution. Wright asserts the evidence was insufficient to establish beyond a reasonable doubt that the firearm was concealed and that it was functional, which are the two essential elements of the charge. He argues that neither of the officers present testified that they could see the firearm in Wright’s waistband, nor did the state present evidence that the firearm had been tested for functionality.

The state argues the trial court correctly overruled Wright’s motion for judgment of acquittal. It contends the evidence was sufficient to support Wright’s conviction for unlawful use of a weapon. The state asserts Wright’s firearm was concealed and the officer’s did not find it until the pat down following arrest. It argues section 571.030.1(1), RSMo only requires a person to carry a concealed firearm, not for the state to prove the firearm is functional. The state further contends the jury could reasonably conclude the firearm was functional because it was loaded, the bullets were admitted into evidence and Wright had used it to threaten people.

SC92257_Wright_brief.pdfSC92257_State_brief.pdfSC92257_Wright_reply_brief.pdf


SC92402
State of Missouri v. Kevin E. Hicks
Jackson County
Sentencing agreement
Listen to the oral argument: SC92402.mp3
Hicks was represented during arguments by Ellen H. Flottman of the public defender's office in Columbia, and the state was represented by James B. Farnsworth of the attorney general's office in Jefferson City.

Kevin Hicks was convicted of two counts of first-degree robbery, five counts of forcible sodomy, one count of forcible rape and one count of attempted forcible rape for an incident on August 5, 1992. A man and woman were arriving home when Hicks along with five other men approached them, forced their way into the house at gunpoint, sodomized and raped the woman and then took two items from the house. Hicks, who was in prison on other charges, cooperated with detectives and gave a statement regarding his involvement in the incident in exchange for an agreement with the state as to sentencing. At trial Hicks was sentenced to 15 years for each robbery count and 30 for each sex offense to run consecutively for a total of 45 years imprisonment, which would run concurrently with Hicks’ current unrelated sentences. Hicks appeals.

Hicks argues the trial court erred in overruling his motion to suppress testimony regarding his statements to the detectives at trial and by admitting the statements into evidence. He contends the statements violated his right against self-incrimination and to due process under article I, section 10 and article I, section 19 of the Missouri Constitution and the fifth and fourteenth amendments to the United States Constitution. Hicks asserts the statements were involuntary, unknowing and unintelligent under the circumstances. He argues his statements were obtained as part of an agreement that sentences would run concurrently (at the same time) if he cooperated with authorities. Hicks contends under section 558.026.1, RSMo, sentences for sexual offenses are required to run consecutively (one after the other) with sentences for non-sexual offenses. He asserts the prosecutor breached the agreement by prosecuting him for the sexual and non-sexual charges. Hicks also argues sentencing him for two counts of first-degree robbery when there was only one victim violated his right to be free from double jeopardy because robbery is a crime against the person, not property. He contends the items were both in Moore’s possession when they were taken and the jury was instructed accordingly.

The state argues the trial court correctly overruled Hicks’ motion to suppress his statements to the detectives. It contends Hicks voluntarily spoke to the detectives after reaching an agreement with the state and the state honored that agreement. The state asserts their agreement with Hicks expressed that new charges would be served concurrently with his current prison sentences. It argues the state was unable to predict what Hicks’ statements would be so it had no way of knowing future sentences could not run concurrent with his current sentences. The state contends Hicks is entitled to relief from one of the first-degree robbery convictions. It asserts the offenses as charged violate his right to freedom from double jeopardy.

SC92402_Hicks_brief.pdfSC92402_State_brief.pdf


SC92386
In re: Elle Sullivant
Jackson County
Attorney discipline
Listen to the oral argument: SC92386.mp3
The chief disciplinary counsel was represented during arguments by its special representative, Kevin J. Odrowski, of Kansas City, and Sullivant -- now of Leesburg, Va. -- represented herself. Judge Glen A. Dietrich, an associate circuit judge in Nodaway County (in the 4th Judicial Circuit), sat in this case by special designation to fill the vacancy on the Court.

Elle Sullivant has been licensed in Missouri since 1997, maintaining a practice in Jackson County as a sole practitioner. According to a disciplinary hearing panel investigation, Sullivant failed to file tax returns for 2005 and 2006 and ignored the resulting letter from the Missouri Supreme Court Clerk threatening automatic suspension of her law license unless she responded. Sullivant was suspended, but allegedly did not change her office or letterhead nor did she withdraw from any state court case in which she was counsel of record. The panel found Sullivant participated in a conference call with Judge Marco Roldan regarding her readiness for an upcoming case without advising him of her suspension and did not inform the judge until the day of trial. A federal rule requires the suspension to have been reported to the federal court for the western district, but the panel found Sullivant continued to practice in the court without notice of the suspension. The panel also found Sullivant used attorney fees in her trust account to pay family, vendors, credit card bills and others without an interest in trust account funds. Judge Gary A. Fenner ordered Sullivant to pay $12,500.00 for sanctions by June 7, 2009, at which time Sullivant said she was absolutely unable to pay. Prior to the June date the panel found Sullivant received $100,000.00 in attorney fees but to this date has not corrected her statement nor paid the sanction. Finally, the panel found there are inadequate safeguards in Sullivant’s practice, that medical complication and financial difficulties have affected her ability to represent clients and that she lacks thoroughness and preparation necessary to represent clients.

Chief disciplinary counsel argues Sullivant committed several violations of the rules of professional conduct including: rules 4-5.5(b), 4-1.16(a)(1) and 6.05(c) regarding the unauthorized practice of law; rule 4-3.3 regarding failure to disclose suspension and making false statements to a judge; rule 4-8.4(d) regarding failing to advise others of her suspension; rule 4-1.15(c) regarding trust funds; rules 4-3.3 and 4-8.4(c) regarding false written representations to a judge; rules 3.4(c) and 4-8.4(d) regarding disobeying an order of a federal judge; and rules 4-1.1 and 4-8.4(d) regarding her fitness to practice. He contends the court should suspend Sullivant’s license for at least three years. Counsel asserts suspension is proper because Sullivant has violated rules of professional conduct regarding deceit and dishonesty. He argues suspension is the base standard under the American Bar Association standards. Counsel contends there are numerous aggravating circumstances and an absence of mitigating circumstances to outweigh the suspension. He asserts Sullivant presents a grave risk of harm to the public that supervision or oversight of her law practice will not remedy.

Sullivant argues she is subject to discipline for some of the conduct stated by the disciplinary counsel. She contends, however, that where the disciplinary counsel has failed to prove a charge by the preponderance of the evidence, where claims were not charged or claims are being raised for the first time she should not be disciplined. Sullivant asserts not all of the state court conduct she is being charged with is unauthorized practice. She argues federal law permitted her to practice in the United States District Court even while she was suspended in Missouri for taxes. Sullivant contends she did not violate rule 4-3.3 in her conference call with Judge Roldan. She asserts her statement to Judge Fenner regarding her finances was true and disciplinary counsel has failed to prove by a preponderance of the evidence that it was false. Sullivant argues any trust fund violations were inadvertent and unintentional. She contends due process requires the court to review only the matters specified in the amended information because she was unaware of several of disciplinary counsel’s charges against her. Sullivant asserts she is subject to discipline for the violations of the rules of professional conduct but a three-year suspension is unwarranted. She argues she took remedial action after her conference call with Judge Roldan and suspension is inappropriate where the attorney has taken remedial action. Sullivant also contends there are numerous mitigating circumstances and a lack of aggravating circumstances to support suspension. She asserts the facts show she does not present a grave risk of harm to the public.

SC92386_Chief_Disciplinary_Counsel_brief.pdfSC92386_Sullivant_brief.pdfSC92386_Chief_Disciplinary_Counsel_reply_brief.pdf

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