Case Summary for November 15, 2006

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Case Summary for November 15, 2006

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. Wednesday, November 15, 2006

_____________________________________________________________________________

SC87691
Dennis E. Hess v. Chase Manhattan Bank USA, N.A.
Platte County
Challenge to application of new state law fraud claims in real estate sale

In January 1999, Chase Manhattan USA, N.A., bought a four-acre lot in southwestern Platte County on which it previously held a mortgage. Chase foreclosed after the previous owner defaulted on the mortgage and pleaded guilty to federal charges of illegal disposal of hazardous waste, which were investigated by the Environmental Protection Agency. In April 1999, Dennis Hess purchased the lot from Chase. The bank knew about the investigation but did not provide Hess information about waste dumping at the property. He built a home and swimming pool on the lot, financed by a $250,000 mortgage. One year later, Hess sued Chase for fraud, alleging the bank failed to disclose material information in its possession about chemical dumping on the property. The trial court dismissed a portion of Hess' claim brought under the merchandising practices act. The jury found for Hess on his common law fraud claim and awarded him $52,000, the amount he paid for the lot. Hess appeals, and Chase cross-appeals.

Hess argues he should have been able to bring a claim under the merchandising practices act, which would have allowed him to recover a larger award, including legal fees. He contends that when he bought the land in 1999, the act already prohibited concealing material facts in a real estate sale and a 2000 amendment to the act simply gave him the right to sue. Hess asserts that a suit to enforce existing law does not alter Chase's substantive rights. He argues Chase was subject to similar penalties under the law before the 2000 amendment. In response to Chase's cross-appeal, Hess argues that Chase cannot defend itself by asserting that he signed a contract waiving Chase's duty to disclose when, he contends, that contract was the result of fraud.

In its cross-appeal, Chase argues the court should have granted judgment to Chase because, it contends, Hess did not establish that the bank had a duty to disclose information about waste on the property. It asserts that Hess agreed by contract that Chase made no representations, guarantees or warranties regarding the property. In response to Hess' appeal, Chase argues the 2000 amendment to the merchandising practices act was substantive and punitive and could not be applied retroactively. It contends that the amendment created a new claim that real estate buyers could use against sellers to recover damages and attorney's fees. The bank asserts that applying the new law retroactively would violate Chase's constitutional right to due process.

The attorney general argues, as a friend of the Court, that the merchandising practices act should be applied with reference to rules drafted by the attorney general. He notes that the act authorizes the attorney general to draft rules defining prohibited practices. According to those regulations, the attorney general contends, a seller need not have actual knowledge of information allegedly withheld. Instead, the attorney general asserts, if a seller could have discovered the information after making a reasonable inquiry, the seller can be charged with knowledge sufficient for a claim under the act. Additionally, the attorney general argues that under the rules, a buyer is entitled to rely on the seller's obligation of fair dealing and need not make independent inquiries. The attorney general requests that if this Court remands the case for further proceedings, the trial court should apply rules interpreting the act to generate jury instructions.

SC87321
Planned Parenthood of Kansas and Mid-Missouri, Inc., et al. v. Jeremiah W. (Jay) Nixon, et al.
Jackson County
Constitutional validity of law prohibiting assisting minors in obtaining abortions without consent

During its September 2005 extraordinary session, the general assembly passed a statute that prohibits any person – without exception – from intentionally causing, aiding or assisting a minor to obtain an abortion without written consent from the minor's parent or guardian or court approval. It further provides that any person subject to jurisdiction in Missouri who violates the act will be liable in a civil suit to persons adversely affected by the action, including the minor and the person or persons required to give consent for damages, for emotional injury, punitive damages and attorney's fees. It may extend this jurisdiction to medical providers not located in Missouri, regardless of whether the abortion was lawful in the state in which it was performed. The statute, which contained an emergency provision, took effect when it was signed September 15, 2005, and was codified as section 188.250, RSMo. Immediately after, the Missouri Religious Coalition for Reproductive Choice and various organizations affiliated with Planned Parenthood (collectively, Planned Parenthood) filed a lawsuit challenging the law, seeking a temporary restraining order and a preliminary injunction. The parties stipulated that abortions in Missouri are available only in the city of St. Louis, in St. Louis County and, to a limited extent, in Boone County, and that the only abortions available in the Kansas City metropolitan area are those in Kansas. They further stipulated that many minor and adult women in Missouri choose to have abortions out of state for various reasons, including a desire to avoid Missouri's parental consent abortion law. In September 2005, the court issued a 15-day temporary restraining order. Following an October 2005 hearing, the court issued a preliminary injunction on November 8, 2005, but nine days later entered its judgment upholding the statute's constitutional validity. In so doing, the court specified that its decision was premised on a "narrowing construction" of the statute, under which it found that the act did not reach certain speech. The court enjoined the statute pending Planned Parenthood's appeal.

Planned Parenthood argues the court erred in construing the statute rather than adjudicating its constitutional validity based on its plain meaning. It contends courts must not apply rules of statutory construction when the statutory language is clear. It asserts that, here, the terms "aid" and "assist" plainly include speech and cannot be construed to have a contrary meaning. It argues that there is no basis for the court to construe the statute's intent element as excluding certain speech and that the trial court's improper construction of the statute is a rewriting that renders the law vague. Planned Parenthood contends the court erred in failing to find that the statute violates constitutionally protected free speech rights. It asserts that content-based restrictions on protected speech and interference with one's right to receive information are not permitted under either the state or federal constitutions. It argues the statute improperly prohibits its speech about out-of-state abortions based on the content and viewpoint of that speech and denies minors access to accurate and truthful health information. Planned Parenthood contends the court erred in failing to find that the statute attempts to regulate speech, conduct and, therefore, commerce, outside the state's borders. It asserts that such attempts violate the commerce clause of the federal constitution as well as principles of state sovereignty and comity. It argues the statute attempts to penalize persons outside Missouri for conduct that is legal where it is performed. Planned Parenthood contends the court erred in failing to find that the statute unconstitutionally burdens the right of some Missouri minors to have an abortion. It asserts that minors who cannot involve their parents in their decisions and for whom an out-of-state abortion is the best option must be provided an effective opportunity to seek a judicial bypass of the requirement that they obtain their parents' consent for an abortion. Planned Parenthood argues that such a requirement cannot impose an undue burden on the right to an abortion and that requiring minors to go through two separate judicial bypass proceedings imposes such an undue burden and denies them an effective opportunity to obtain a judicial bypass. It contends the court erred in failing to find that the statute violates the rights of its minor clients to equal privileges and immunities and to travel interstate. It asserts that citizens of one state have the constitutional right to travel to another state and to be treated there the same as citizens of the second state. It argues such minors have the right to travel interstate to seek medical services such as abortions without infringements on their ability to travel. Planned Parenthood contends that this Court must invalidate the entire law. It asserts that the law is invalid in all its applications or, alternatively, that its provisions cannot be severed because there is strong evidence the general assembly did not want the provisions of the statute to be severed.

The city of St. Louis circuit attorney responds that the trial court properly upheld section 188.250. She argues the statute is not void for vagueness because it provides persons of ordinary intelligence sufficient warning as to what actions the statute prohibits. She contends the law is not overbroad given the court's limiting construction of the statute. She asserts that the statute does not violate free speech rights under either the state or the federal constitution. She argues it does not prohibit Planned Parenthood from disseminating information about the availability of out-of-state abortions to Missouri minors. The circuit attorney responds that the law does not violate the commerce clause of the federal constitution because it does not regulate directly or discriminate against interstate commerce, nor is its purpose to favor in-state economic interests at the expense of out-of-state economic interests. She contends the trial court properly found that section 188.250 does not pose an undue burden on a minor's right to choose an abortion, even though it may have an incidental effect of making abortion more difficult or more expensive to obtain. She asserts that the law does not interfere with or implicate the right, under the privileges and immunities clause of the federal constitution, of Missouri minors to travel to other states. She argues the statute does not violate constitutional principles of equality because it treats minors from Missouri and those from other states the same. The circuit attorney responds that section 188.250 is valid in all its applications because the trial court's narrowing construction limits its application to purposeful conduct that causes a Missouri minor to obtain an abortion in violation of Missouri's parental consent law. She contends, in the alternative, that should this Court find that the section is invalid in some, but not all, of its possible applications, it still should uphold the statute but should restrict its application to those constitutionally permissible applications that comport with the general assembly's objective in enacting the statute.

The attorney general and the state's board of registration for the healing arts (collectively, the state) respond that there is no controversy for this Court to decide because Planned Parenthood's claims are not ripe (timely) and because they lack standing (legal authority to make a claim). The state argues the court did not err in construing the statute to be constitutionally valid. It contends the plain meaning of the words in the statute do not prohibit protected speech. It asserts that the statute's terms are easily understood and valid under their ordinary dictionary definitions – that "cause" means to make, not to inform; that "aid" and "assist" mean more than to provide information; and that "inform" is not included in the plain language of the statute. The state responds that the law regulates only conduct occurring in Missouri and does not apply to actions occurring outside Missouri. It argues that, because the statute does not reach outside Missouri's borders, it is consistent with the commerce clause and due process protections of the state and federal constitutions. The state contends that the statute does not place any undue burden on the right of Missouri minors to an abortion. It asserts that Missouri minors still have access to abortions if they obtain parental consent or judicial authorization. It further asserts that the potential that a minor may have to obtain judicial authorization twice does not constitute imposition of an undue burden. The state responds that the statute does not infringe on, restrict or otherwise burden an individual's right to travel between states. It argues the statute also does not violate the privileges and immunities clause because it does not deprive nonresidents of any privilege or immunity possessed by Missouri residents. The state contends that, if there were a basis to invalidate a part or an application of the statute, then this Court should sever that part or application to preserve the rest of the statute.

A dozen religious organizations (The American Jewish Committee, Americans for Religious Liberty, Association of Reform Rabbis of Greater St. Louis, Disciples for Choice, Disciples for Justice Action, The Ethical Society of St. Louis, National Council of Jewish Women, St. Louis Area Unitarian Universalist Council, St. Louis Rabbinical Association, United Synagogue of Conservative Judaism, and Women of Reform Judaism) argue, as friends of the Court, that section 188.250 unconstitutionally infringes on the free exercise of religion. They contend the statute prohibits pro-choice religious counseling of Missouri minors who lack parental consent or judicial authorization for abortions. They assert that the statute should be subject to intermediate scrutiny because it interferes with religious counseling, which they argue is a religiously motivated action that combines the rights of free speech and free exercise of religion. The religious organizations contend that religious beliefs about abortion are protected by the free exercise clauses of the state and federal constitutions. They assert that the statute substantially burdens clergy's free exercise rights by interfering with religious counseling of Missouri minors who lack parental or judicial consent to obtain an abortion. The religious organizations further argue the statute unduly burdens free exercise of religion because there is no compelling state interest justifying the burden.