Case Summary for September 29, 2009

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Case Summary for September 29, 2009

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. Tuesday, Sept. 29, 2009

_________________________________________________________________

SC89834
F.R. v. St. Charles County Sheriff's Department
St. Charles and St. Louis counties
Constitutional validity of retroactive sex offender statute
Listen to the oral argument:

F.R. was represented during argument by Michael Gross of Michael Gross Law Office in St. Louis, and the sheriff's department was represented by Robert Hoeynck of the St. Charles County counselor's office.

F.R. pleaded guilty to five sex offense charges in March 1999 and was sentenced to seven years and six months imprisonment. He was released from prison in February 2004. During its 2004 session, the state legislature enacted section 566.147, RSMo prohibiting convicted sex offenders from living within 1,000 feet of any public or private school or childcare facility. In June 2008, F.R. moved into a home in O'Fallon. Because of his conviction, he notified the St. Charles County sheriff's department about his move, and a detective advised F.R. that he could not move into the intended residence. The detective told F.R. that if he remained in the home, he would be violating section 566.147 because the home's property line was 913 feet from the property line of a child-care facility. F.R. moved out of the house and obtained a survey from a private surveying company that determined the entries to the house and the childcare facility were more than 1,090 feet apart. When he brought this to the attention of the sheriff department's, it told F.R. he would be arrested if he moved back into the residence. In August 2008, F.R. filed a lawsuit for declaratory judgment and injunctive relief, arguing section 566.147 is unconstitutional because it was retrospective as applied to him and is vague and ambiguous. In September 2008, the trial court found the statute to be constitutional. F.R. appeals.

F. R. argues the statute is retrospective as applied to him and violates the due process guarantees of the of the Missouri and United States constitutions. He asserts it imposes new obligations on him to determine the distance of schools or childcare facilities from his prospective residences. F.R. contends these obligations and restrictions take away his previously vested right to choose where to live because, at the time he pleaded guilty to the sex offenses, he was free to choose to reside where and with whom he would live, and the statute now restricts that freedom. He further argues that the law is vague and ambiguous because ordinary people of common intelligence could differ with respect to how to measure the 1,000 feet mandated by the statute. F.R. asserts the statute does not give sufficient explanation of how to measure the 1,000 feet and does not prevent arbitrary or discriminatory application of the law. Finally, he contends the rule of lenity should apply so that the measurement is from the residential structure to child-care structure rather than from property line to property line.

The sheriff's department responds that section 566.147 is not retrospective because F.R. did not have a vested right to live at the prospective residence in O'Fallon. It contends the statute did not impose an obligation on F.R. to obtain a measurement of the distance between a school or child-care facility and the residence. The department asserts the statute does not violate due process because people of ordinary intelligence have a reasonable opportunity to understand the prohibition of a sex offender residing within 1,000 feet of a school or child-care facility. It argues the statute did not authorize or encourage arbitrary or discriminatory enforcement.

The Missouri attorney general argues, as a friend of the Court, that the sex offender residency law is not retrospective as applied to F.R. He contends the statute does not create a new obligation or impose a new duty to transactions or considerations already past because it only restricts a certain area where F.R. may live. The attorney general asserts the statute is not vague or ambiguous because people of reasonable intelligence would know that the 1,000 feet requirement should be measured from property line to property line. He further argues F.R.'s challenge to the retrospective application of the statute fails because the statute is civil and regulatory in nature, not criminal, and there is no equal protection violation because the statute rationally is related to the state's legitimate interest in protecting the safety of children.

SC89982
State ex. rel. Luanne S. Unnerstall, Protectee, by Anna Leighton, her Conservator v. The Honorable John B. Berkemeyer
Franklin and Gasconade counties
Challenge to will in probate
Listen to the oral argument:

Wife was represented during argument by Clifford Brown of Carnahan, Evans, Cantwell & Brown, P.C., in Springfield, Nephew was represented by Richard Wunderlich of Lewis, Rice & Fingersh, L.C. in St. Louis, and Husband's children were represented by Kurt Voss of Zick, Voss & Politte, P.C. in Washington.

After Husband died in March 2006, his Wife contested the validity of their antenuptial agreement. In addition, Husband's children from a previous marriage challenged the division of Husband's estate. One year after Husband's death, Wife sought to administer Husband's estate in the probate division, claiming Husband died intestate (without a will). The next month, in April 2007, Husband's nephew filed Husband's purported will with the probate division. In January 2008, the probate division sustained Wife's petition to require administration of the estate and, pursuant to the purported will – which named Nephew as the personal representative – named Nephew the personal representative of Husband's estate. Wife challenged the purported will as time-barred. In November 2008, the probate division issued orders admitting Husband's purported will to probate and granting letters testamentary (giving the bearer authority to administer the estate) to Nephew as the personal representative pursuant to Husband's purported will. Wife seeks this Court's writ in mandamus to set aside the probate division's orders and judgments of the probate division.

Wife argues the probate division did not have subject matter jurisdiction to enter the orders and letters. She contends the purported will was not presented for probate within the one-year time limit required by section 473.050.3(2), RSMo, and subsequently was barred from admission to probate. Wife asserts the division also could not issue the letters testamentary pursuant to that time-barred will.

Nephew responds the probate division properly admitted the will and properly entered its order granting him letters testamentary. He contends that the probate division properly applied section 473.050 in admitting the will and that Wife has "unclean hands" to bring this proceeding as she continues to benefit from her questionable conduct before the probate division. Nephew asserts Wife's petition invoked the jurisdiction of the probate division and, therefore, she is precluded from challenging the probate division's jurisdiction to admit the will.

SC90125
State of Missouri v. Michael Moore
Montgomery and Warren counties
Postconviction motion
Listen to the oral argument:

Moore was represented during argument by Nancy McKerrow of the public defender's office in Columbia, and the state was represented by Dora Fichter of the attorney general's office in Jefferson City.

Michael Moore was on probation for driving while intoxicated when the circuit court revoked his probation Dec. 7, 2006. The court ordered him to serve his previously imposed prison sentences of four and seven years. Moore also was ordered to complete a 120-day treatment program and was held in the Warren County jail because there was no bed space in the department of corrections. The sheriff was to deliver Moore to the department when space was available, sometime in February 2007. While in jail, Moore requested permission to leave to spend Christmas with his children. The circuit court granted Moore a furlough, so that Moore would be booked and processed by the county sheriff's department before being released, with an order to return by noon Dec. 27, 2006. Moore did not return until five or six days later, in January 2007, and he did not notify the sheriff that he would be returning late. Subsequently, Moore was charged with failure to return to confinement pursuant to section 575.222, RSMo. At trial, he moved for acquittal at the close of all evidence. The circuit court overruled his motion and, in April 2007, convicted Moore with failure to return and sentenced him to an additional four years to be served concurrently with his other sentences. Moore appeals.

Moore argues the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence in violation of his rights to due process and a fair trial, as guaranteed by the sixth and fourteenth amendments of the Missouri and United States constitutions. He contends the evidence was insufficient to establish the charges against him because he was furloughed from jail and was told to return to the sheriff's custody by noon Dec. 27. Moore asserts, therefore, that he was not serving a sentence on Dec. 27 and cannot be guilty of failing to return to confinement on that date. He further argues the trial court abused its discretion and plainly erred in permitting the Warren County judge who allowed the furlough to testify to his opinion that Moore was serving a sentence to the department of corrections on Dec. 27, violating Moore's right to a fair trial. Moore contends that there was no foundation laid that the Warren County judge was an expert, that the judge's opinion was irrelevant and invaded the province of the jury, and that the judge stated a legal conclusion. Moore asserts he was prejudiced by the judge's testimony because the jury was bound to give great weight to his opinion and, if the jury believed the judge, it had to convict Moore.

The state responds the evidence and inferences from the evidence were sufficient to permit a reasonable juror to find Moore failed to return to confinement. It argues the evidenced showed that Moore was serving a sentence to the department of corrections, that he was permitted leave temporarily, and that he purposely failed to return to confinement at the jail on the date provided by the court. The state contends that the trial court properly allowed the judge to testify that, in his opinion, Moore was serving a sentence when he was released from confinement and that the judge was qualified as an expert on the issue of whether Moore was serving a sentence on Dec. 27.

SC90139
Jason L. Rice v. Shelter Mutual Insurance Company
Johnson County
Workers' compensation exclusion in uninsured motorists coverage
Listen to the oral argument:

Shelter was represented during argument by Ben Schmitt of Schmitt Manz Swanson & Mulhern in Kansas City, and Rice was represented by Kirk Rahm of Rahm, Rahm & McVay, P.C. in Warrensburg.

Jason Rice's parents had three automobile insurance policies with Shelter Mutual Insurance Company. Pursuant to their coverage, Rice was covered against uninsured motorists in all three policies. During work in June 2006, Rice was a passenger in a truck that was struck by automobile driven by an uninsured motorist. Rice sustained injuries and received workers' compensation benefits. Rice then sought the $600,000 in coverage provided pursuant to the uninsured motorist benefits of the three Shelter policies. The company denied his claim, arguing that, because Rice had received workers' compensation, an exclusionary clause in the policies limited Shelter's liability to $75,000, or $25,000 per policy. Rice sued Shelter, seeking the $525,000 difference. At trial, he moved for summary judgment. The court sustained his motion. Shelter appeals.

Shelter argues the trial court erred in entering summary judgment for Rice. It contends the exclusion in the uninsured motorist provision – for damages sustained by an insured if benefits also are payable to the insured under a workers' compensation law – is valid and enforceable under Missouri law. Shelter asserts the language of the exclusion does not violate section 303.030, RSMo, of the Missouri motor vehicle financial responsibility law, or section 379.203, RSMo, which requires automobile liability insurance policies to provide uninsured motorist coverage of $25,000 per person.

Rice responds that a conflict creating an ambiguity in the insurance policy must be construed and resolved in his favor as the insured. He contends Shelter's exclusionary language is ambiguous and conflicts with the insurance policy's provision that "all provisions of this Part of the policy which exceed the requirements of any applicable uninsured motorist insurance law ... are fully enforceable." Rice argues Shelter failed to appeal the trial court's determination that the exclusionary language is excessively broad and rendered the uninsured motorist coverage illusory. He asserts that Shelter violated Rule 84.04 in failing to support its argument that its exclusionary language is not excessively broad and that, even if Shelter did preserve the issue, the exclusionary language is excessively broad because Shelter's definition of a "compensation law" eliminates uninsured motorist coverage in nearly all circumstances and requires a complete forfeiture – rather than a set-off – of uninsured motorist benefits. Rice further responds the exclusionary language is void and unenforceable because it violates public policy established in section 379.203, RSMo. He contends the statute requires insurance companies to pay the full benefit of the uninsured motorist protection purchased, equivalent to the liability coverage he, as an insured, would receive if the uninsured vehicle was insured by a $600,000 liability insurance policy, and only limits the insurance to "not less than" $25,000.

The Missouri Association of Trial Attorneys argues, as a friend of the Court, that denying the full amount of uninsured motorist coverage an insured purchased violates the public policy of Missouri. It asserts such a denial defeats the reasonable expectations of the insured by providing only illusory coverage. The association contends Shelter's contract is an unconscionable contract of adhesion (a standardized contact that does not provide one of the parties bargaining power) because it prohibits the insured from negotiating the terms of the policy. As such, the association argues, the contract should be viewed in favor of the insured.