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Case Summary for March 8, 2007

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. Thursday, March 8, 2007
____________________________________________________________________________________

SC88026
State ex rel. Shirley Lute v. Missouri Board of Probation and Parole, et al.
Livingston County
Challenge to denial of parole

Shirley Lute was convicted in 1981 of aiding and abetting the murder of her abusive husband and was sentenced to life in prison without the possibility of parole. In October 2000, Lute applied for clemency, and in late November 2004, the governor commuted her sentence, making her eligible for parole. The board of probation and parole postponed her parole hearing for six months. The board ultimately denied parole to Lute, stating in part that her "release at this time would depreciate the seriousness of the present offense." The board set her next parole hearing for June 2007. After hearing that Lute was denied parole, the governor who commuted her sentence provided an affidavit making clear that the board's acts were inconsistent with his intent and exceeded its authority. Lute files a petition for habeas corpus in this Court asking that she be discharged on parole.

Lute argues she is entitled to be released from prison on parole because the former governor commuted her sentence, enabling her to be released on parole. She contends she now is being confined unlawfully because the board had no discretion to deny her parole application in contradiction of the former governor's intent. She asserts that, by not abiding by the governor's grant of clemency, the board increased her punishment. Lute argues the board denied her due process of law. She contends its reason for denying her parole relied on regulations promulgated after the date she was sentenced instead of those existing at the time of sentencing. She asserts the board used mere boilerplate language as a rationale for denying her parole even though Missouri law requires that the board set forth the reasons for denial with specificity. Lute argues the board violated the constitutional prohibition against the enactment of ex post facto laws because, in denying her parole, it improperly relied on section 217.690, RSMo 1982, as the authority for its discretion to release or parole an offender based on its determination of whether there is reasonable probability that the offender can be released without detriment to the community or to herself. She contends this statute cannot be used to support the board's actions because it was not enacted until the year after she was convicted and sentenced.

The board responds that the former governor's commutation order makes Lute eligible for parole consideration but did not implicitly order that she be released on parole. It contends no inmate may be paroled under the current or former Missouri parole statutes when the board believes paroling the inmate would be detrimental to society. The board argues that, in its opinion, releasing Lute on parole would depreciate the seriousness of her offense and, therefore, would be detrimental to the community. As a result, the board contends that Lute cannot be released under either the current or former parole statute and that the denial of her parole does not violate the ex post facto clause. The board argues that Lute has no liberty interest in a particular level of detail in its explanation of the reason she was denied parole and that the reason the board provided for her denial was proper and sufficient.

SC88026_Lute_brief.pdf SC288026_Probation_and_Parole_Brief.pdf SC88026_Lute_Reply_Brief.pdf


SC88111
State ex rel. Lynda Ruth Branch v. Jennifer Miller, Superintendent, et al.
Livingston County
Challenge to denial of parole

Lynda Branch was convicted of first-degree murder in 1986 after she killed her husband, whom she contended was abusing her. Her conviction was reversed and her case remanded for a new trial because she had not been permitted to introduce evidence of domestic violence. In 1989, Branch again was convicted of first-degree murder, again without domestic abuse evidence being presented. The court sentenced her to life in prison without the possibility of parole. In late November 2004, the governor commuted Branch's sentence, making her eligible for parole. The board of probation and parole postponed her parole hearing for six months. In January 2005, a new governor took office and subsequently appointed a new chairman to lead the board. The board ultimately denied parole to Branch, stating in part that her "release at this time would depreciate the seriousness of the present offense." The board set her next parole hearing date for June 2008. After hearing that Branch was denied parole, the governor who commuted her sentence provided an affidavit clarifying his process of commuting Branch's sentence and stating his intent regarding the board's consideration of her parole. Branch files a petition for habeas corpus asking that she be discharged on parole.

Branch argues she is entitled to immediate release on parole from the department of corrections. She contends the board exceeded its authority by denying her parole based on only the circumstances of her offense because those circumstances constitute impermissible grounds. Branch asserts she has a protected liberty interest in parole under state regulation 14 CSR 80-2.020(4)(H), which she argues indicates that her then 18-year incarceration already had satisfied the deterrent and retributive portions of her sentence that fully compensate society for the circumstances of her offense. Branch asserts the governor's commutation of her life sentence constitutes a modification of her original sentence, so that she now has served 20 years of a life sentence with the possibility of parole. She argues the board's denial of her parole is in derogation of the governor's sworn intent that the circumstances of her offense were the precise basis for his commutation of her sentence. She contends the board, therefore, should not reconsider these circumstances. Branch further asserts that, in granting her commutation, the governor justifiably relied on the assumption that the board would adhere to its own parole regulation.

Miller responds that the board properly denied parole to Branch. She argues Branch does not have a liberty interest in parole release under 14 CSR 80-2.02010(4)(H) or any other parole regulation. Miller contends the denial of parole was proper and does not conflict with the commutation order. She contends the board properly found that releasing Branch at this time would depreciate the seriousness of her offense because of the circumstances of the offense, the use of a weapon and the use of excessive force or violence.

SC88111_Branch_brief.pdfSC88111_Miller_etal_brief.pdfSC88111_Branch_reply_brief.pdf


SC88218
State of Missouri v. Mina Elliott
Clay County
Challenge to receipt of delinquent Missouri individual income tax

In March 2003, the Missouri director of revenue sued Mina Elliott, seeking delinquent individual income taxes for the years 1991 through 1995. The state sent notices to Elliott through certified mail advising her about the amount of the deficiency the director intended to assess against her as well as her right to protest the director's claim. The official records showed that all of the certified mail notices were returned as unclaimed. Elliott moved to dismiss the suit, alleging the state violated her constitutional rights when it failed to give her actual notice of a tax assessment and her right to appeal. The trial court entered judgment for the state, ordering Elliott to pay more than $5,700 in delinquent taxes. Elliott appeals.

Elliott argues there was undisputed evidence that she never received notice of her right to challenge the state's tax assessment. She contends that, under section 143.621, RSMo, the assessment of taxes is final unless a protest is filed within 60 days of mailing the notice of delinquency. She asserts that, under section 621.050, RSMo, she is entitled to a notice of her right to appeal the decision by the director of revenue to the administrative hearing commission. Elliott argues these statutes effectively deny her right to appeal as guaranteed under the 14th Amendment of the United States Constitution because she never received the required notices.

The state responds that it met the requirements of sections 143.611 and 143.621, RSMo, when it sent notices to Elliott's last known address through certified mail. The state contends Elliott's due process rights were not violated because these statutes do not require actual notice of deficiency be received by the taxpayer. Instead, the state asserts, the statute requires only that the notice be mailed by certified or registered mail to the taxpayer’s last known address.

SC88218_Elliott's_Brief.pdfSC88218_State's_Brief.pdf


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