Case Summary for April 26, 2016

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Case Summary for April 26, 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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Tuesday, April 26, 2016
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SC95337
Missouri Municipal League, et al. v. State of Missouri
Cole County
Constitutional challenges to legislation involving public rights-of-way and public utilities
Listen to the oral argument:

SC95337.mp3
The city, the league and its deputy director were represented during arguments by Michael Berry of Berry Wilson LLC in Jefferson City; the state was represented by Solicitor General James Layton of the attorney general’s office in Jefferson City.

During its 2013 session, the legislature adopted House Bill Nos. 331, which dealt with local government control over telecommunications infrastructure permitting and rights-of-way in which public utilities place infrastructure. One of the changes was a to section 67.1842, RSMo, to which the bill added a sixth subdivision to subsection 1 to prohibit political subdivisions from requiring any public utility with certain existing access to their rights-of-way to enter into an agreement or obtain a permit for general access to or the right to remain in the right-of-way. This new provision never took effect, however, because the Cole County circuit court in October 2013 struck down both HB 331 and House Bill No. 345, finding they violated the original purpose and single subject requirements of the state constitution. As a result of the subsequent appellate process, the circuit court’s judgment did not become final until August 2014. During its 2014 session, the legislature adopted Senate Bill Nos. 649 and 650 as replacements for 2013’s HBs 331 and 345. The senate bills included the language passed in the prior year’s house bills as though it was existing law. Two days before the senate bills were to take effect, the city of Springfield, the Missouri Municipal League (an association of Missouri cities, towns and villages) and the league’s deputy director subsequently filed suit, seeking a declaratory judgment that the senate bills – and, in particular, the new section 67.1842.1(6) – were unconstitutional. The state filed a motion for judgment on the pleadings as to the procedural challenges, as well as a motion to dismiss the substantive challenges on the grounds that the plaintiffs lacked standing (legal ability) to assert them. In June 2015, the circuit court sustained the state’s motions. The city, league and its deputy director appeal.

This case raises several issues for the Court, some involving standing and others involving substantive challenges. One issue is whether Springfield has standing to challenge section 67.1842.1(6), as violating the state constitution’s prohibition against retrospective laws within article I, section 13 or against special legislation within article III, section 40(28). Related to this issue are questions of whether the protections against retrospective laws and special laws extend beyond persons to cities and, if so, whether the statute unconstitutionally grants any public utility with any form of existing access to Springfield’s right-of-way a new and vested right of permanent and general access or whether the statute makes such a grant to a closed and limited class of public utilities with existing city right-of-way access. Another issue for the Court involves whether the league has standing to challenge the statute under the constitutional prohibitions against retrospective laws and special laws. Related to this issue is a question of whether the league pleaded facts to establish that its members separately would have standing, that the membership interests it seeks to protect are germane to the league’s purpose, and that, because the league seeks prospective declaratory relief, individual participation by its members is not required.

An additional issue for this Court is whether the circuit court should have granted the state judgment on the pleadings regarding the procedure by which the legislature enacted SBs 649 and 650. Related to this issue is a question of whether the senate bills enacted, reenacted or revived prior invalid legislation. Another is whether the senate bills failed to set forth the new provisions or sections to be amended as required by article III, section 28 of the state constitution or whether, because the judgment striking down the 2013 house bills was not yet final at the time the senate bills were passed, the language of the senate bills was marked properly in accordance with the constitutional requirements. A further issue is whether the league’s deputy director has standing as a taxpayer to challenge SBs 649 and 650 under the “Hancock amendment” (article X, section 23 of the state constitution). Related to this issue are questions of whether the county in which the deputy director resides suffers an adverse financial impact as a result of the senate bills’ requirements and whether the state provides funding and resources for the county and other impacted political subdivisions to comply with these requirements.

CTIA – The Wireless Association filed a brief as a friend of the Court. Its arguments, on behalf of its wireless communications members, are that the senate bills help remove barriers in local permitting and zoning process that make it difficult for wireless carriers to use public rights-of-way to deploy infrastructure necessary to expand mobile broadband access.

SC95337_MO_Municipal_League_et_al_brief.pdf

SC95337_State_brief.pdf

SC95337_MO_Municipal_League_et_al_reply_brief.pdf

SC95337_CTIA_amicus_brief.pdf

SC95318
State of Missouri v. Amanda N. Bazell
Cass County
Challenges to burglary and stealing convictions and sentences
Listen to the oral argument:

SC95318.mp3
Bazell was represented during arguments by Ellen Flottman of the public defender’s office in Columbia; the state was represented by Richard Starnes of the attorney general’s office in Jefferson City.

A couple returned from church in May 2013 to find items missing from their home near Garden City, including a jewelry box, a laptop, a telescope, shoes and two firearms. The same day, a man found a young woman in his Pleasant Hill home, looking through something on the kitchen table. He questioned her, and she bolted out the back door. The man later discovered his wife’s rings, valued at $8,000, were missing from the kitchen. Following investigation, a detective in the Cass County sheriff’s department showed a witness a photographic lineup. The witness identified Amanda Bazell as the person who had taken the items from the two homes. The state charged Bazell with two counts of first-degree burglary, two felony counts of stealing firearms, one felony count of stealing more than $500 and one misdemeanor count of stealing less than $500. At trial, the detective testified that he put the photographic lineup together from jail photographs. Defense counsel moved for a mistrial, which the trial court overruled. The detective then testified the photographs were pulled from department of revenue records. The jury found Bazell guilty of one count of burglary (at the Pleasant Hill home) and the four stealing counts but hung on the other burglary count (at the Garden City home). The trial court declared a mistrial as to that burglary count, then sentenced her to concurrent prison terms of 12 years for each of the felonies and one year for the misdemeanor. Bazell appeals.

This case presents several questions for the Court. One involves whether the two counts of stealing a firearm in the course of one burglary constitutes a single offense or individual offenses under the relevant statute and, if it is a single offense, whether sentencing Bazell for both counts violated the state and federal constitutional prohibitions against double jeopardy. Another question is whether the detective’s testimony that he compiled the photographic lineup from jail photographs associated Bazell with prior bad acts or otherwise destroyed the presumption of innocence and, if so, whether this violated Bazell’s state and federal constitutional rights to due process, to a fair trial and to be tried only for the charged offenses.

SC95318_Bazell_brief.pdf

SC95318_State_brief.pdf

SC95318_Bazell_reply_brief.pdf

Note: The Court on July 8, 2016, ordered supplemental briefing in this case:

SC95318_supplemental_briefing_order_07-08-2016.pdf

Here are the parties' supplemental briefs filed pursuant to that order:

SC95318_Bazell_supplemental_brief.pdf

SC95318_State_supplemental_brief.pdf

SC95369
Timothy S. Pestka, et al. v. State of Missouri, et al.
Cole County
Constitutional validity of action overriding veto
Listen to the oral argument:

SC95369.mp3
Pestka and Chavez were represented during arguments by Michael Evans of Hartnett Gladney Hatterman LLC in St. Louis; the state was represented by Deputy Solicitor General Jeremiah Morgan of the attorney general’s office in Jefferson City.

During its 2015 session, the legislature passed House Bill No. 150, making certain changes to the state’s employment security law. The governor vetoed the bill on May 5, returning it to the house of representatives. The house reconsidered HB 150 and overrode the governor’s veto on May 12; the senate adjourned without such a vote. The governor later vetoed an unrelated bill, resulting in the automatic convening of the legislature for a “veto session” in September 2015. During the veto session, the senate reconsidered HB 150 and overrode the governor’s veto. Two men sued the state, its division of employment security and the division’s acting director (collectively, the state), seeking a permanent injunction against HB 150. The circuit court determined the senate did not violate article III, section 32 of the Missouri Constitution when it reconsidered HB 150 during the fall veto session. The men appeal.

This case previously was argued January 13, 2016. On February 1, 2016, this Court ordered supplemental briefing to address the applicability to this case of the state constitution’s article III, section 20(a), which states in part: “All bills in either house remaining on the calendar after 6:00 p.m. on the first Friday following the second Monday in May are tabled.”

The Court’s supplemental briefing order asks the parties to address certain questions. These questions include whether a veto message a “bill” for purposes of article III, section 20(a) and, if so, whether it was necessary for the reconsideration of HB 150 to appear on a senate calendar in the senate journal on the first Friday following the second Monday in May for it to have been tabled. Another question asks what action, if any, the house or senate had to take to remove HB 150 from the table and place it before the senate so as to enable the senate to reconsider the bill in the September veto session. A further issue involves article III, section 32 of the state constitution, which provides that, once the first chamber has overridden a veto, the presiding officer of that chamber “shall … send the bill with the objections of the governor” to the other chamber, “in which like proceedings shall be had in relation thereto.” Specifically, the questions involve what the phrase “like proceedings” in article III, section 32 refers to as well as what language in this provision or elsewhere in section 32 allows the receiving chamber to alter either those “proceedings” or the effect of article III, section 20(a) by refusing to read the message from the originating chamber promptly.

Note: This case previously was argued January 13, 2016, after which the Court ordered supplemental briefing.

Original briefs: