Case Summary for November 16, 2016

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Case Summary for November 16, 2016

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

9:30 a.m. Wednesday, November 16, 2016
____________________________________________________________________________________________________

SC95546
State of Missouri ex rel. Missouri Coalition for the Environment, et al. v. Joint Committee on Administrative Rules, et al.
Cole County
Challenge to constitutional authority of legislature to veto administrative rules
Listen to the oral argument:

SC95546.mp3
The Missouri Coalition for the Environment was represented during arguments by Henry B. Robertson of the Great Rivers Environmental Law Center in St. Louis. The joint committee and governor were represented by Ronald R. Holliger of the attorney general’s office in Jefferson City; the public service commission was represented by Jennifer L. Heintz of the commission in Jefferson City; and the secretary of state was represented by Jose Caldera of the secretary of state’s office in Jefferson City.

In 2008, Missouri voters adopted a ballot initiative regarding a renewable energy standard that governs renewable energy credits available to regulated utilities. As required by the initiative, the public service commission in January 2010 proposed an administrative rule to enforce the renewable energy standard. The “geographic sourcing” provisions of the rule disallowed utilities from purchasing renewable energy credits representing energy produced and consumed outside Missouri. The General Assembly’s joint committee on legislative rules held a hearing regarding the proposed rule in June 2010. In July 2010, the joint committee disapproved the rule’s geographic sourcing provisions, and the commission proposed a revised rule. The secretary of state published the revised rule in August 2010, including the provisions the joint committee had disapproved, but noted that disapproval and labeled those provisions as “reserved.” The secretary of state then published the rule, without the disapproved paragraphs, in the code of state regulations with an effective date in September 2010. In January 2011, the commission issued an order under which certain utilities purchased unbundled solar renewable energy credits from third-party brokers or aggregators, including at least some located outside Missouri. Less than a week later, the legislature passed a concurrent resolution to “permanently disapprove and suspend” the version of the proposed rule that appeared in the code of state regulations. The governor allowed the resolution to become law. The Missouri Coalition for the Environment, a company that installs solar photovoltaic systems and a state taxpayer (collectively, the coalition) later sued the joint committee and its members, the commission, the secretary of state and the governor. While the litigation was pending, the commission filed a revised rule, effective in November 2015, and then asked the circuit court to dismiss the lawsuit as moot. The circuit court granted the commission’s motion in January 2016. The coalition appeals.

This case presents several questions for this Court involving the legislature’s constitutional authority to veto administrative rules. Procedurally, one question involves whether the case became moot – either when the commission amended the rule before suit was filed or when the commission revised its rule in 2015 – and whether the commission successfully withdrew the disputed geographic sourcing provisions. Related issues involve whether any live constitutional issues remain or whether there remains any effective remedy available to the coalition given the 2015 rule. Substantively, one question involves whether the joint committee’s suspension of an executive branch rule or legislative veto by such a rule violates the separation of powers provision of article II, section 1 of the state constitution. Related issues involve whether the secretary of state properly executed its ministerial (non-discretionary) duties in publishing the commission’s final rule as filed. Another question involves whether the joint committee exceeded its authority or usurped the power of the judiciary in reviewing and disapproving the renewal energy standard rule.

SC95546_MO_Coalition_for_the_Environment_brief.pdf

SC95546_Secretary_of_State_brief.pdf

SC95546_Public_Service_Commission_brief.pdf

SC95546_JCAR_and_governor_brief.pdf

SC95546_MO_Coalition_for_the_Environment_reply_brief.pdf

SC95624
City of Normandy, et al. v. Jeremiah Wilson Nixon, et al.
Cole and St. Louis counties
Challenge to constitutional validity of bill capping amounts municipalities may retain from cases arising out of minor traffic violations
Listen to the oral argument:

SC95624.mp3
The state was represented during arguments by Andrew Hirth of the attorney general’s office in Jefferson City; the municipalities were represented by David H. Pittinsky of Ballard Spahr LLP in Philadelphia, Pennsylvania.

In 2015, the legislature passed and the governor signed into law Senate Bill No. 5. The bill imposes requirements on certain municipalities; caps the amount of fines, bond forfeitures and court costs the municipalities could retain from cases arising out of minor traffic violations; requires excess amounts to be remitted to the state’s department of revenue; and authorizes penalties for noncompliant municipalities. A dozen municipalities in St. Louis County and two St. Louis County taxpayers (collectively, the municipalities) sued the state, alleging SB 5 was unconstitutional. The municipalities moved for injunctive relief, and the state moved to dismiss the petition. Following a February 2015 hearing, the circuit court declared that certain portions of SB 5 relating only to municipalities in St. Louis County were special laws that violated article III, section 40 of the state constitution and were unfunded mandates that violated article X, sections 16 and 20 of the state constitution. The circuit court enjoined the state from enforcing these provisions. The circuit court dismissed the municipalities’ remaining claims for relief. Both the state and the municipalities appeal.

The municipalities’ appeal presents several questions for this Court. One involves whether SB 5 gives the director of revenue authority to compel municipal divisions to cede their jurisdiction to the local circuit court and, if so, whether this grant of authority violates the separation of powers guaranteed by article II, section 1 of the state constitution. Another question involves whether SB 5 amends or is inconsistent with any rules of criminal procedure and, if so, whether it violates article V, section 5 of the state constitution. An additional question involves whether SB 5’s limits on the amount of fines a municipality can retain from certain traffic cases violate article V, section 27(16) of the state constitution or mean only that such fines still go to the municipality rather than the county.

The state’s appeal raises other questions for this Court. One involves whether SB 5 provisions pertaining to particularly described municipalities are unconstitutional special laws, whether they are based on open-ended characteristics sufficient to pass constitutional muster and whether the state must show substantial justification for the statutory description. Additional questions involve whether the municipalities’ unfunded mandate challenge was ripe (ready for judicial review), speculative or since has become moot; whether any provisions of SB 5 actually imposed any unfunded mandates on two municipalities or whether any costs imposed would be “de minimus” (too trivial to merit consideration); and whether the legislature could have appropriated funds before the municipalities incurred any new expenses.

Two organizations filed briefs as friends of the Court. The American Civil Liberties Union of Missouri Foundation argues the SB 5 provisions that currently limit its application to St. Louis County and its municipalities are constitutional, open-ended characteristics that are supported by substantial justification. Better Together argues the population characteristics are open-ended, have a rational purpose and a substantial justification and should be presumed constitutional. Better Together also argues that the municipalities have not shown they have incurred increased costs as a result of SB 5 and that their unfunded mandate claims are not ripe for determination.

SC95624_municipalities_first_brief.pdf

SC95624_State_first_brief.pdf

SC95624_municipalities_second_brief.pdf

SC95624_State_second_brief.pdf

SC95624_municipalities_third_brief.pdf

SC95624_State_third_brief.pdf

SC95624_ACLU_amicus_brief.pdf

SC95624_Better_Together_amicus_brief.pdf

SC95752
In the Matter of the Care and Treatment of Carl Kirk v. State of Missouri
Henry County
Challenge to constitutional validity of confinement, as a sexually violent predator, in the department of mental health
Listen to the oral argument:

SC95752.mp3
Kirk was represented during arguments by Chelsea R. Mitchell of the public defender’s office in Columbia; the state was represented by Gregory M. Goodwin of the attorney general’s office in Jefferson City.

Carl Kirk was convicted of sodomy and was sentenced to prison, where he completed Missouri’s sex offender treatment program. He was paroled in 2011, and his parole later was revoked. He was scheduled to be paroled again in 2013. A multidisciplinary team of experts from the departments of correction and mental health determined Kirk did not meet the criteria of a sexually violent predator. A prosecutor’s review committee disagreed and sought to have Kirk committed as a sexually violent predator to secure confinement in the department of mental health. During the jury trial, two psychologists testifying for the state opined that Kirk was diagnosed with pedophilia, that pedophilia was a mental abnormality and that their risk assessments showed Kirk was at high risk of reoffending. One testified that Kirk had a long history of offending against boys and that Kirk’s pedophilia caused him serious difficulty controlling his behavior. Both psychiatrists’ risk assessments placed Kirk in the high-risk category of reoffending. In his testimony, Kirk admitted sexually violating two boys, the second a few months after Kirk was conditionally released after victimizing the first. A psychologist testifying on Kirk’s behalf diagnosed Kirk with attention deficit hyperactivity disorder and pedophilia but opined he did not believe Kirk had a mental abnormality, saw no evidence Kirk was sexually attracted to prepubescent children and did not believe Kirk was more likely than not to reoffend if not committed. Kirk sought to present evidence of another assessment tool and of his plan for supervision should he be released, but the circuit court excluded the evidence. The jury found that Kirk was a sexually violent predator, and the circuit court entered its judgment finding Kirk to be a sexually violent predator and committing him to secure confinement in the department of mental health for care and treatment until his mental abnormality had changed so that he was safe to be released. Kirk appeals.

This case presents a number of questions for this Court involving whether Kirk’s constitutional rights, including his rights to due process and equal protection of the law, were violated. Procedurally, one question involves whether the circuit court should have changed venue (location of the trial) to a different county. Substantively, questions involve whether the multidisciplinary team’s finding that Kirk did not meet the criteria of a sexually violent predator precluded the state from seeking Kirk’s civil commitment and whether the circuit court otherwise should have dismissed the state’s petition. Related issues involve the constitutional validity of the sexually violent predator act – whether it creates a second punishment for past offenses or is otherwise punitive in nature; permits commitment for emotional capacity without proof of behavioral impairment; must consider treatment in the least restrictive environment or to offer conditional release of offenders who no longer are mentally ill or dangerous; or effectively results in lifetime confinement in the department of mental health. Another question involves whether the circuit court properly required the burden of proof at trial to be “clear and convincing evidence” rather than “beyond a reasonable doubt.” Additional questions involve the presentation of evidence. One involves whether the circuit court should have allowed one of the state’s psychologists to revise his opinion about Kirk’s risk of reoffending. Others involve whether Kirk had an opportunity to contest probable cause or should have been permitted to present evidence regarding another psychological assessment tool or of his plan for supervision should he be released. Further questions involve whether the jury instructions were misleading or confusing, were supported by the evidence, diverted the jury from determining whether Kirk had a mental abnormality that made him more likely than not to reoffend, or allowed the jury to reach its determination based on treatment rather than the criteria for civil commitment.

SC95752_Kirk_brief.pdf

SC95752_State_brief.pdf

SC95752_Kirk_reply_brief.pdf

SC95793
Doni R. Miller and Bruce Cohen v. Genevieve Frank, St. Louis County Clerk
St. Louis County
Challenge to election results and to which entity is a county’s proper election authority
Listen to the oral argument:

SC95793.mp3
Bruce C. Cohen, an attorney in Kirkwood, represented himself and the other write-in candidate; the clerk was represented by Michael A. Shuman of the St. Louis County counselor’s office in Clayton.

St. Louis County residents and voters Doni Miller and Bruce Cohen sought to be write-in candidates at the November 2014 general election for the offices of county executive and prosecuting attorney, respectively. Each filed declarations of intent to be a write-in candidate, signed affirmations of tax payment and bonding requirements and completed additional forms. According to the final write-in vote count for the election, both received votes but did not win. In January 2016, the write-in candidates sued the county clerk, alleging the other candidates for both offices – including the incumbents, who ultimately were declared the winners – failed to file the required declarations of candidacy and should not have been permitted to run. The county clerk moved to dismiss, alleging that the write-in candidates failed to contest the election within the time required and that they should have sued the board of election commissioners rather than her as the board was the proper election authority. Following arguments, the circuit court granted the county clerk’s motion to dismiss in April 2016. The write-in candidates appeal.

This case presents two primary questions for the Court regarding whether the circuit court should have dismissed the case. A procedural question involves whether the write-in candidates have presented real and substantial constitutional claims sufficient to invoke this Court’s jurisdiction or whether the case should be heard in the intermediate appeals court. Substantively, one question is whether St. Louis County’s proper election authority is the county board of election commissioners or the county clerk. The other question is whether the write-in candidates’ election challenge met all statutory requirements.

SC95793_write-in-candidates_brief.pdf

SC95793_County_Clerk_brief.pdf

SC95793_write-in-candidates_reply_brief.pdf

SC95567
In re: Scott C. Hinote
Christian County
Attorney discipline
Listen to the oral argument:

SC95567.mp3
The chief disciplinary counsel’s office was represented during arguments by Kevin J. Rapp of Springfield; Hinote did not argue.
Scott Hinote has a solo law practice in Ozark. He twice has been admonished by disciplinary authorities. In October 2014, the chief disciplinary counsel’s office received a notice from a bank that Hinote’s trust account was overdrawn and opened an investigation. About two weeks later, the office received a second overdraft notice regarding Hinote’s trust account. The chief disciplinary counsel’s office also had received unrelated complaints from two of Hinote’s clients. The chief disciplinary counsel’s office began disciplinary proceedings against Hinote in June 2015. During the November 2015 hearing of the allegations against Hinote, the two clients chose not to participate, although the chief disciplinary counsel’s office presented its files relating to the two complaints. In its December 2015 decision, the regional disciplinary hearing panel found Hinote had committed multiple violations of Rule 4-1.15 by routinely commingling personal and client funds in both his operating and trust accounts, depositing personal funds in his trust account to pay client refunds; depositing most client funds into his operating account and then using them for personal or business expenses before he performed meaningful work for them; failing to keep adequate ledgers of his trust account; and practicing law for several months after the bank closed his trust account. The panel recommended that Hinote be suspended from the practice of law for at least six months as a result. It also recommended dismissing the counts relating to the two client complaints. The chief disciplinary counsel now asks this Court to discipline Hinote’s law license.

This case presents two primary questions for this Court – whether Hinote violated the rules of professional responsibility and, if so, what discipline is appropriate.

SC95567_Chief_Disciplinary_Counsel_brief.pdf

SC95567_Hinote_brief.pdf