Case Summary for February 15, 2012

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Case Summary for February 15, 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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Wednesday, Feb. 15, 2012

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SC91968
State of Missouri ex rel. MoGas Pipeline LLC v. Missouri Public Service Commission
Cole County
State agency intervention in federal regulation proceeding
Listen to the oral argument:

The public service commission was represented during arguments by Jennifer Leigh Heinz, an attorney with the commission in Jefferson City, and MoGas Pipeline was represented by Gerard T. Carmody of Carmody MacDonald PC in St. Louis. Judge Thomas J. Prebil, an associate circuit judge from Scotland County (in the 1st circuit), sat in this case by special designation in place of Judge Mary R. Russell, and Judge Lisa K. Page, presiding judge of the 23rd Judicial Circuit (Jefferson County), sat in this case by special designation in place of Judge William Ray Price Jr.

The Missouri Public Service Commission regulates investor-owned utilities in Missouri. MoGas Pipeline is an interstate natural gas pipeline company regulated by the Federal Energy Regulatory Commission. MoGas’ predecessor solely operated a pipeline within the state and was regulated by the state commission. The state commission had intervened in several MoGas proceedings before the federal commission without protest prior to this action. In the present action, MoGas filed an application asking the state commission to terminate its involvement in federal commission proceedings. The state commission opposed the application to terminate, and both parties filed motions for determination of the matter. The state commission issued an order refusing to withdraw from the proceedings, and MoGas moved for rehearing, which the commission overruled. MoGas then sought review in the circuit court, which found the state commission’s order unlawful and unreasonable. The state commission appeals.

The state commission argues this Court must uphold the state commission’s order refusing to end its involvement in the proceedings at the federal commission. It contends it has authority to participate in these proceedings under federal and state law. The state commission asserts it is not attempting to assert rate-setting jurisdiction over MoGas by participating in the federal commission proceedings. It argues that the order was lawful and that the Court must uphold it.

MoGas argues the state commission’s order incorrectly denied its application to end the state commission’s involvement in the federal commission proceedings. The company contends the law prevents the state commission from exercising jurisdiction or power over pipeline companies such as MoGas. MoGas asserts that section 368.030, RSMo, expressly limits the state commission’s authority to intervene in the federal commission’s involvement with MoGas. It argues that the state commission does not have the authority to pursue matters such as this because that power is reserved for the attorney general.

SC91893
In re: James Michael Roswold
Jackson County
Attorney Discipline
Listen to the oral argument:

The chief disciplinary counsel was represented during arguments by Sharon K. Weedin, an attorney with the counsel's office in Jefferson City, and Roswold was represented by Michael P. Downey of Armstrong Teasdale LLP in St. Louis. Judge Lisa K. Page, presiding judge of the 23rd Judicial Circuit (Jefferson County), sat in this case by special designation in place of Judge William Ray Price Jr.

James Roswold began practicing law with Mark Schmid at Capilevitz, Bryant, Grey & Jennings PC in 1993. Roswold became licensed to practice in both Kansas and Missouri, while Schmid was licensed only in Missouri. In 1995, Roswold left with Schmid to work at Schmid’s new firm as an associate, later forming a partnership. In 2004, Schmid and Roswold undertook representation in a medical malpractice case against four doctors in Kansas. Schmid was lead counsel in the case and drafted the petition, but Roswold signed all of the documents under a pre-established arrangement between the partners. Schmid never applied for limited admission in Kansas to assist in handling the case. The Kansas court dismissed the malpractice case when Schmid and Roswold failed to find a medical expert to testify against the doctors being charged. They filed the case again and again were unable to find an expert witness to establish negligence for two of the doctors, who were dismissed from the action. The remaining two doctors filed motions for summary judgment (judgment based on the pleadings). Schmid and Roswold did not inform their client about the motions for almost a month and did not prepare responses on behalf of their client to the motions for summary judgment. The court granted summary judgment to the doctors, but Schmid told the client they had settled the case and provided the client with two distributions of the alleged proceeds of the purported settlement. The Kansas Supreme Court suspended Roswold’s license for one year for assisting in the unauthorized practice of law. Missouri’s chief disciplinary counsel now asks this Court to discipline Roswold’s license as well.

The chief disciplinary counsel argues this Court should suspend Roswold’s Missouri law license. He contends Roswold was personally responsible for violations of Rules 4-1.1 regarding competence to represent, 4-1.3 regarding diligence to a client’s case and 4-1.4(a) regarding communication with a client by failing to ensure the client was being adequately represented by Schmid. The disciplinary counsel asserts Roswold violated Rules 4-1.5(c) requiring contingency fee contracts by failing to put the contract in writing. He argues Roswold also violated Rules 4-5.1(a) and 4-5.1(c)(2) regarding responsibility for partners by failing to ensure the proper measures for representation of the client had been taken by the partnership, thereby causing the partnership to be liable. The disciplinary counsel contends Roswold violated Rules 4-5.5(a) and 4-8.4(a) by assisting and allowing Schmid to represent a client when he was not properly licensed. He asserts Roswold has failed to show that a lesser sanction is warranted. Counsel argues that suspension is the proper method to use when multiple rules have been violated and the violations establish a pattern of neglect of the duties owed to clients.

Roswold argues this Court should apply a lesser penalty, such as a warning or probationary period. He contends that the laws applied in the Kansas proceeding differs from the applicable Missouri laws in this case and, therefore, that a different penalty should be applied. Roswold asserts that he did not violate Rule 4-1.5(c) regarding client fee agreements. He further argues there is no basis for finding that he violated Rule 4-1.1 regarding an attorney’s competence to represent a client, Rule 4-1.3 regarding an attorney’s diligence in representing a client, Rule 4-1.4 regarding communication with the client or Rule 4-8.4 regarding attorney misconduct. Roswold contends his behavior since being disciplined in Kansas and his efforts to right the situation justify a lesser penalty.

SC92125
Jordan Danielle King-Willmann, a minor child, by her mother and next friend, Sherrill Christine King, and Sherrill Christine King, individually, and Keith Willmann, individually v. Webster Groves School District
St. Louis County
Admission of student from unaccredited district to a school in a neighboring district
Listen to the oral argument:

The Webster Groves school district was represented during arguments by Douglas A. Copeland of Copeland Thompson Farris PC in St. Louis, and the state, which filed a brief as a friend of the Court, was represented by Robert Presson of the attorney general's office in Jefferson City.

Jordan King-Willmann is a 16-year-old resident of the city of St. Louis. She desired to attend Webster Groves High School because the city’s school district is not accredited. In Turner v. School District of Clayton, 318 S.W.3d 660 (Mo. banc 2010), this Court ruled that the Clayton school district could not deny admission to a city resident student. The trial court found Turner to be controlling here, ruling in the student’s favor and issuing an order requiring the Webster Groves district to admit her into its high school. The district appeals.

The Webster Groves school district argues the trial court incorrectly granted the student’s request to be enrolled in its high school. It contends the student failed to establish she had a clear and unequivocal right to be enrolled. The district asserts it was entitled to a hearing because it disputed certain key facts in the student’s argument and had valid defenses to the claims against it. It also argues the trial court violated section 167.131, RSMo, by requiring the high school to enroll the student without additional financing or state appropriations to fund the additional costs of her enrollment. The Webster Groves district contends that the city school district should have been a party to the original action and that it was entitled to a hearing to determine if the city district was a necessary party. The Webster Groves district asserts that the city district should pay tuition and transportation costs, that the city district’s interest in the case could be injured if it is not party to this case and that the Webster Groves district may incur double costs if it is required to seek tuition reimbursement from the city district.

The student did not file a responsive brief. The state, however, filed a brief as a friend of the Court and will argue this case in place of the student. The state argues that, because standing (the legal ability to bring a claim or legal argument) under the Hancock Amendment (article X, section 23 of the state constitution) is limited to taxpayers, a school district cannot assert the Hancock Amendment as an affirmative defense to an individual’s claim. The state contends that the Hancock Amendment is not violated by a state mandate that includes the requirement that costs of compliance with the mandate be paid by an entity other than the state. As such, the state asserts, requiring the Webster Groves district to enroll the student here does not violate the Hancock Amendment because, under section 167.131, the cost of her education is paid not by Webster Groves taxpayers but by a third party (either the city school district or the transitional school district). The state asserts that section 167.131.2 requires disputes about how much tuition one district should pay to another and when such payment should be made to be presented in the first instance to the state education board, not a circuit court. The state further argues that, if the Hancock Amendment does not permit third-party payments for new activities, then this Court should overrule Rolla 31 School District v. State, 837 S.W.2d 1 (Mo. banc 1992), to the extent that it holds that the legislature must enact a specific line item for each new activity and that it effectively bars the state from ever reducing amounts made available for use in programs and activities the state may wish to encourage but does not require.

The Special School District of St. Louis County argues, as a friend of the Court, that the trial court incorrectly found in the student’s favor and ordered Webster Grovees school district to admit her to its high school. The special school district contends the law does not create a duty for Webster Groves to admit students such as King-Willmann. The special school district asserts that section 167.131 either does not apply or fails to account for situations in which the school to which a student is attempting to transfer also is associated with a special school district. The special school district argues, therefore, that the court’s order must be vacated and the case sent back to the trial court for further consideration.

SC88959
State of Missouri v. Vincent McFadden
St. Louis County
Challenge to death sentence
Listen to the oral argument:

McFadden was represented during arguments by Janet Thompson of the public defender's office in Columbia, and the state was represented by Timothy A. Blackwell of the attorney general's office in Jefferson City.

Vincent McFadden was charged with first-degree murder and armed criminal action for the July 2002 shooting death of Todd Franklin. A jury found him guilty, and he was sentenced to death. This Court reversed the conviction. State v. McFadden, 191 S.W.3d 648 (Mo. banc 2006), and McFadden was tried again. At retrial, the state alleged and evidence was admitted over McFadden’s objections that Franklin was killed because he testified in a prior proceeding. McFadden argued that he was with Michael Douglas at the time of the shooting and that Douglas pleaded guilty to second-degree murder and was sentenced to 20 years in prison. The trial court limited evidence of Douglas’ plea to the fact of Douglas’ admission and the fact that he did not receive the maximum sentence. A tape was offered into evidence of a conversation McFadden had regarding the incident. The jury found McFadden guilty and recommended a sentence of death. McFadden appeals.

McFadden argues the trial court wrongly preventing him from establishing that Douglas pleaded guilty to second-degree murder. He contends this refusal denied him of his rights to due process, confrontation, a fair trial, reliable sentencing, and freedom from cruel and unusual punishment. McFadden asserts the court also incorrectly overruled his objections to the testimony of several witnesses, one of the state’s exhibits, and the state’s opening and closing arguments. He argues that, because the jury in his first trial rejected the state’s allegation that McFadden killed Franklin because he was a witness, he was acquitted of that charge and that the state was not at liberty to mention it at the retrial. McFadden asserts the state should not have been permitted to strike a black juror for cause because it denied him of his rights to due process, a fair and impartial jury and freedom from cruel and unusual punishment. McFadden further argues that the court incorrectly allowed another black juror to be struck from the jury over his objections and that the state attempted to strike all prospective jurors who were black. He contends the court incorrectly admitted testimony regarding his identification and fingerprints in violation of his rights to due process, a fair trial, a proper trial based on his charges, freedom from cruel and unusual punishment and prejudiced the jury towards him. McFadden asserts one of the state’s jury instructions suggested that there were more aggravating circumstances supporting the death penalty than actually existed and pointed the guilt for someone else’s crime at him. He argues that the jury was required to find “depravity of mind” and that, because the jury did not claim to have made such a finding, he could not be sentenced to death. McFadden contends the jury in his first trial did not find depravity of mind and the jury in his retrial did not have enough information to determine if his prior convictions had involved serious assaults. He asserts the trial court should have declared a mistrial because the state’s arguments stated personal beliefs and misstated facts and laws, among other things. McFadden also argues the court incorrectly admitted a recorded phone conversation into evidence because the conversation contained hearsay (out of court statements offered to prove the truth of the matter they contained) and the authenticity of the recording was not proven. Finally, he contends sentencing him to death violated his rights to due process, a jury trial, reliable sentencing and freedom from cruel and unusual punishment because each of the facts to prove a sentence of death must be found beyond a reasonable doubt by the jury, but the jury here did not make such findings.

The state argues the trial court correctly limited Douglas’ testimony because the evidence was not relevant to McFadden’s guilt or sentence. It argues the jury’s rejection in the first trial of the allegation that Franklin was killed because he was a witness did not prevent the same allegation from being raised again during the retrial. The state asserts that the court correctly struck the two proposed jurors and that McFadden failed to prove any jurors were struck or attempted to be struck because of discriminating purposes. The state argues evidence of McFadden’s identification by a picture and fingerprints was properly admitted. The state contends that all jury instructions were proper and that the sentence of death did not turn on whether there was depravity of mind. It asserts the jury in the first trial did find depravity of mind and the jury here sufficiently found serious assaultive convictions. The state argues the prosecutor’s comments during jury selection, opening statements and closing arguments were permissible. It contends the phone conversation was properly admitted into evidence. Finally, the state asserts a sentence of death was the correct punishment because it did not have to plead aggravating circumstances.