Case Summary for February 25, 2015

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Case Summary for February 25, 2015

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. Wednesday, February 25, 2015
____________________________________________________________________________________________________

SC94482
D. Samuel Dotson III and Rebecca Morgan v. Missouri Secretary of State Jason Kander v. Tom Dempsey, Timothy Jones, Ron Richard, Kurt Schaefer and Missourians Protecting the 2nd Amendment
Cole County
Post-election contest to August 2014’s Amendment 5 regarding right to keep and bear arms
Listen to the oral argument:

SC94482.mp3
The challengers were represented during arguments by Charles W. Hatfield of Stinson Leonard Street LLP in Jefferson City; the secretary of state was represented by Deputy Solicitor General Jeremiah J. Morgan of the attorney general’s office in Jefferson City; the legislative intervenors were represented by David H. Welch of the state house of representatives in Jefferson City; and Kurt Schaefer, a member of the state senate in Jefferson City, represented himself.

In May 2014, the legislature passed a joint resolution that proposed amending section 23 of the Missouri Constitution’s bill of rights regarding the right to keep and bear arms. The resolution included a summary statement: “Shall the Missouri Constitution be amended to include a declaration that the right to keep and bear arms is an unalienable right and that the state government is obligated to uphold that right?” The governor scheduled the proposal for the August 2014 election. The secretary of state certified the official ballot title – including the legislature’s summary statement – in June 2014 and labeled the proposal as Amendment 5. That same day, two individuals (the challengers) filed a lawsuit challenging the sufficiency and fairness of the summary statement pursuant to section 116.190, RSMo. In July 2014, the circuit court issued its judgment determining that the case was moot and, alternatively, that the summary statement was sufficient and fair. This Court likewise dismissed the appeal as moot, noting judicial review of a claim that a ballot title is unfair or insufficient is available in the context of an election contest should the proposal be adopted. More than 60 percent of the voters passed the amendment, which became effective in September 2014. The challengers now bring this election contest.

The challengers argue that article VII, section 5 of the state constitution authorizes the legislature to designate a court to hear statewide election contests and that, through section 115.555, RSMo, the legislature has designated this Court as the proper forum for statewide contests to the results of elections on constitutional amendments. They contend this Court should invalidate the August 2014 election regarding Amendment 5 to amend article I, section 23 of the state constitution. They assert the ballot title before the voters was insufficient and was unfair. They argue the ballot title also failed to be a true and impartial statement of the purposes of the proposed measure in language neither intentionally argumentative nor likely to create prejudice either before or against the proposed measure, as required by section 116.155, RSMo. The challengers contend the summary statement misrepresented the probable effect of the measure to the voters. They assert the ballot title was unfair and impartial in leading voters to believe the constitution was being changed in ways it was not and in failing to summarize the major changes to the state’s gun laws. They argue the summary statement failed to inform voters that the amendment deleted language that had been interpreted to allow the legislature to regulate the carrying of concealed weapons, that the amendment was adding ammunition and accessories to the right to keep and bear arms, and that the amendment would mandate, constitutionally, strict scrutiny of all gun laws. The challengers contend the insufficient and unfair summary statement is an election irregularity of sufficient magnitude so as cast doubt on the validity of the election, causing it to be invalidated.

The secretary of state responds that this Court should dismiss this case for lack of jurisdiction. He argues that there is no original jurisdiction in this Court to review ballot titles and that article VII, section 5 addresses only election contests involving public officers, not ballot measures. The secretary of state contends that because nothing in chapter 115, RSMo – dealing with post-election contests – references summary statements and chapter 116, RSMo, which does reference summary statements, deals only with pre-election challenges, Missouri law does not provide for a post-election contest of a ballot title. The secretary of state contends the challengers’ claim is moot or untimely under article XII, section 2(b) of the state constitution because the amendment they challenge became effective before they made their challenge. As such, the secretary asserts, the challenge should be dismissed. The secretary of state responds, alternatively, that, if this Court permits a post-election contest, it should apply a heightened burden. He contends the kind of irregularities for which an election has been voided traditionally involve qualified voters being disenfranchised, unqualified voters being permitted to vote, design defects in ballots and absentee voting procedures. As such, he asserts, election contests are meant to examine external actions related to the election, not to look at a successful measure’s summary statement. The secretary of state responds that the summary statement was fair and sufficient under the requirements of chapter 116, RSMo. He argues that a summary statement prepared by the legislature is limited to 50 words, excluding articles; that it need not describe every detail; and that deference must be given to the legislature as to what details should be included. The secretary contends that, read as a whole, the summary statement made it clear the proposal was geared toward strengthening the right to keep and bear arms, which he asserts is sufficient to satisfy the statutory standard. The secretary of state responds the petition should be dismissed because the only remedy the challengers seek – removing the amended language from the constitution after invalidating the election results – is not permitted.

Three legislators who intervened in the election contest – respond that this Court should not invalidate amendment 5, approved by voters in August 2014. They argue the challengers’ petition is untimely and claims are moot. The legislators contend that, because Amendment 5 took effect 30 days after the election, before the challengers filed their suit, the challengers’ claims are barred. Should the Court reach the merits, then the legislators contend the ballot title of amendment 5 is not insufficient or unfair, much less false or fraudulent. They assert the summary statement does not restate existing provisions of law but provides that the prior right to keep and bear arms was being made “inviolate.” They argue that the summary statement need not list all peripheral details and that the legislature should be given deference in which details to include. The legislators respond that the remedy the challengers request is not authorized by law.

A senator and an organization called Missourians Protecting the 2nd Amendment respond that the challengers allege no irregularity in the election returns, they presented no evidence of any irregularities and the record contains no evidence of any irregularity in the returns. As such, the senator and the organization argue, the challengers have invoked an inapplicable remedy, as a new election is not authorized absent irregularities in the returns. The senator and the organization contend the summary statement fairly and sufficiently summarized the purpose of the ballot measure, which was primarily to make a declaration about how Missouri’s existing constitutional right to keep and bear arms is to be regarded and secured in the wake of certain decisions by the United States Supreme Court.

SC94482_Dotson_and_Morgan_brief.pdf

SC94482_Secretary_of_State_brief.pdf

SC94482_Depsey_Jones_and_Richard_brief.PDF

SC94482_Schaefer_and_Missourians_Protecting_2nd_Amendment_brief.PDF

SC94482_Dotson_and_Morgan_reply_brief.pdf

SC94516
Wes Shoemyer, Darvin Bentlage and Richard Oswald v. Missouri Secretary of State Jason Kander
Cole County
Post-election contest to August 2014’s Amendment 1 regarding right to farm
Listen to the oral argument:

SC94516.mp3
The challengers were represented during arguments by Anthony L. DeWitt of Bartimus, Frickleton, Robertson & Goza PC in Jefferson City; the secretary of state was represented by Deputy Solicitor General Jeremiah J. Morgan of the attorney general’s office in Jefferson City; the legislative intervenors were represented by David H. Welch of the state house of representatives in Jefferson City; and Missouri Farmers Care was represented by Mark F. (Thor) Hearne II of Arent Fox LLP in Clayton.

In May 2013, the legislature passed a joint resolution that proposed adding a new section 35 to article I of the state constitution. The resolution included a summary statement: “Shall the Missouri Constitution be amended to ensure that the right of Missouri citizens to engage in agricultural production and ranching practices shall not be infringed?” The secretary of state certified the official ballot title in June 2013 and designated the measure Amendment 1. In May 2014, the governor placed Amendment 1 on the August 2014 election ballot. Following a close election result, there was a recount. In September 2014, the secretary of state certified the results of the recount, showing the measure still passed by a slim margin. In October 2014, three individuals (the challengers) filed this election contest.

The challengers argue the results of the August 5 election regarding Amendment 1 should be set aside under section 115.553.2, RSMo. They contend the official ballot title for this amendment was unfair, insufficient, deceptive and misleading. They assert the ballot title omitted the express limitation of the right to farm subject to article VI of the state constitution and incorrectly stated the class of persons who benefited from the new right, stating it grants rights to Missouri citizens but actually providing rights only to farmers and ranchers. They argue, therefore, the ballot title caused irregularities in the election results. The challengers contend their challenge to the results of Amendment 1 is timely because they brought it within 30 days of the certification of the recounted election results in accordance with section 115.557, RSMo. They assert challenges to a ballot title after it has been adopted by general election are authorized. The challengers argue their claims are not barred by the doctrine of laches (barring unduly late claims) because election challenges are not equitable claims and their petition was not unduly delayed but rather was filed within the statute of limitations. The challengers contend their claims are not barred by the state constitution. They assert article XII, section 2(b) of the state constitution – which operates to make successful amendments effective 30 days after the election – should not apply. The challengers argue their claims do not violate separation of powers or article XII, section 1. They contend they are not challenging the amendment itself but rather the procedure by which the amendment was adopted. They assert that chapter 115, RSMo and article VI, section 5 of the state constitution authorize election challenges to such a procedure.

The secretary of state makes substantially the same arguments in this case as in SC94482, above.

Legislative representatives who intervened in the case respond that this Court does have jurisdiction but should not invalidate Amendment 1. They argue the challengers’ petition is untimely and, therefore, the challengers’ claims are moot and barred by the doctrine of laches. The legislative intervenors contend that, pursuant to article XII, section 2(b) of the state constitution, Amendment 1 became final and in force 30 days after the election. They assert that the challengers’ suit, however, was not filed before the amendment became effective. The legislative intervenors respond there is no need to invalidate the amendment due to irregularities. They argue that the irregularities described in section 115.553.2, RSMo, are irregularities in the conduct of the election itself and that challenges to ballot titles are to be brought instead under section 116.190, RSMo. The legislative intervenors contend the challengers failed to meet their burden of proof in an election contest. The legislative intervenors assert the challengers failed to provide any evidence to show any election irregularity of such consequence as to call into question the validity of the election. The legislative intervenors respond that the ballot title for Amendment 1 was not insufficient or unfair, much less false or fraudulent.

The organization Missouri Farmers Care, which also intervened in the case, responds that this Court lacks jurisdiction to hear the ballot case. The organization argues this case should be controlled by the provisions of chapter 116, RSMo, which the organization argues requires that any challenge to a ballot title be filed in the Cole County circuit court within 10 days after the secretary of state certifies the summary statement. The organization contends that, because the challengers did not file their suit within that time frame, they now cannot raise a ballot title challenge post-election by casting it as an election contest under chapter 115, RSMo. The organization asserts that this Court never before has invalidated a constitutional amendment after voters have passed it. The organization responds that such an action would render section 116.190 meaningless because it would encourage those wishing to challenge a ballot title to wait until after the election to do so to determine first if their side of the issue did not prevail. The organization argues that, should this Court reach the merits of the case, it should find the challengers provided no legal or factual basis on which this Court may annul the ballots cast in favor of the amendment. The organization contends that the ballot title was not unfair or insufficient and that the legislature did not deceive or mislead voters, noting that any voter had access to the full 63-word text of the amendment and that the challengers had more than a year to litigate whether the 26-word summary statement was unfair or inaccurate but did not do so. The organization responds that this Court should require the challengers to reimburse Missouri taxpayers and Missouri farmers for their costs in defending this election contest, which the organization asserts is frivolous.

SC94516_Shoemyer_brief.pdf

SC94516_State_brief.pdf

SC94516_General_Assembly_intervenors_brief.pdf

SC94516_Missouri_Farmers_intervenors_brief.pdf

SC94516_Shoemyer_reply_brief.PDF

SC94488
Paul L. Pasternak v. Denise M. Pasternak
St. Francois County
Challenge to judgment modifying legal custody, permitting relocation
Listen to the oral argument:

SC94488.mp3
The father was represented during arguments by Christina L. Kime, a solo attorney in Piedmont; the mother was represented by Lawrence G. Gillespie of Gillespie, Hetlage & Coughlin LLC in Clayton.

A couple divorced in September 2011 when their sons were 3 and 6 years old. At the time, their dissolution settlement provided the parties had joint legal and physical custody of the children, with a schedule for when the children would stay with each parent. The father remained in the marital home in Farmington; the mother moved to a condominium 10 miles away. After the divorce, the older boy suffered some educational and behavioral problems, began seeing a counselor, and ultimately was provided with an individualized educational plan at school. In September 2012, the mother filed a motion to modify the custody order, seeking sole legal and physical custody and seeking to reduce the father’s visitation with the children. During discovery, the mother stated that she had no intention of relocating. The trial court set the matter for trial in July 2013. Then, in May 2013, the mother sent the father a letter informing him that she intended to move, with the boys, from Farmington to Silva (to a residence 56 miles from the father’s residence) in July 2013. The father filed a petition to prohibit relocation and a counter-motion to modify, seeking sole legal and physical custody. During the trial, the mother testified her sole reason for relocation was due to a change in her employment. The trial court in August 2013 entered its judgment granting the mother’s request. It found her relocation was made in good faith and was in the best interests of the children. The court found that the parents had demonstrated they could not participate in joint parenting of the children and, therefore, granted the mother sole legal custody of the children. The court also modified the joint physical custody schedule. The father appeals.

The father argues the trial court erred in approving the children’s relocation from Farmington to Silva. He contends the finding that the relocation was made in good faith was not supported by substantial evidence and was against the weight of the evidence. He asserts the mother’s words and actions demonstrated her motive for relocating was to remove him from the children’s daily lives, noting in part that the mother did not attempt to improve her job performance, refused to apply for jobs closer to the father’s residence and did not notify him of her intention to relocate until two months after resigning her job and one month after signing a new employment contract. The father argues the court’s finding that relocation was in the children’s best interests was not supported by substantial evidence and was against the weight of the evidence. He contends the weight of the evidence indicated that – considering all relevant statutory factors – the best interests of the children would be served by maintaining frequent contact with both parents as provided in the original custody plan and in keeping the children in the same school district, where the older boy had begun making progress. The father asserts the trial court erred in modifying the dissolution judgment by giving the mother sole legal custody of the children rather than the parents sharing joint legal custody. He argues there was not substantial evidence to support a determination that a change had occurred, since the original judgment, in the circumstances of either the children or their parents or that modification was in the children’s best interests. He contends that, although the parents had difficulty agreeing on all aspects of the children’s lives, both parents are active and interested parents who are equipped and able to contribute to their children’s care and both parents indicated a willingness to work toward that goal in the future. The father asserts that the court’s decision to award the mother sole legal custody is not supported by substantial evidence, is against the weight of the evidence and is not in the children’s best interests. He argues the evidence indicated the mother failed to make appropriate decisions in the children’s best interests when acting as a joint custodian and failed to consult or work with the father for the benefit of the children. The father contends he is better able to act as sole legal custodian in the best interests of the children.

The mother responds that the trial court’s determination that her request to relocate the children’s residence was made in good faith was supported by substantial evidence and was not against the weight of the evidence. She argues she presented evidence that she lost her job and obtained employment in a different location and at a lower salary, that she proposed a parenting plan requiring the father to drive only 18 miles rather than 10 miles to exchange custody, and that the court did not believe the father’s allegation that she lost her job intentionally to move away from him. The mother contends that the trial court’s characterization of the relocation as in the best interests of the children was supported by substantial evidence and was not against the weight of the evidence. She asserts the trial court’s findings under the statutory considerations fully detail its assessment and reasoning and specifically find that allowing relocation would permit each party to continue in their long-standing parenting roles. The mother responds that the trial court’s decision eliminating joint legal custody and giving her sole legal custody of the children was supported by substantial evidence. She argues that the parties are not able to participate in joint parenting and cannot deal with each other for the benefit of the children and that the parents’ distrust of one another interferes with basic considerations of co-parenting. The mother responds that the father waived his right to argue there was no change in circumstances justifying modification when he filed his own counter-motion to modify the custody decree alleging a change in circumstances. The mother argues that the trial court’s judgment refusing to award the father legal custody was supported by substantial evidence and was not against the weight of the evidence. She contends the father’s argument ignores evidence on which the court relied in assessing the best interests of the children and relies only on evidence he views as helpful to him. She asserts that, because the father asked the trial court to continue joint legal custody, he now cannot ask this Court to give him sole – relief he did not request in the trial court.

SC94488_Father_brief.pdf

SC94488_Mother_brief.pdf