Case Summary for September 1, 2009

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Case Summary for September 1, 2009

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, Sept. 1, 2009

_________________________________________________________________

SC89703
State ex rel. The Kansas City, Missouri Police Department, et al. v. The Honorable Charles E. Atwell
Jackson County
Class action certification
Listen to the oral argument:

The police department was represented during argument by William Quirk of Polsinelli Shughart PC in Kansas City, and Pearsall and Ricketts were represented by George A. Barton of The Law Offices of George A. Barton in Kansas City.

In January 2001, George Ricketts and Raymond Pearsall sought the return of money and personal property seized from them by the Kansas City police department during separate drug trafficking arrests. They allege the police department transferred money and property seized during their arrests to a federal agency without complying with the procedural requirements of the Missouri Criminal Activity Forfeiture Act. The act provides that law enforcement may not transfer property seized to a federal agency until the transfer is approved by a county prosecutor or circuit court judge. In July 2007, Ricketts and Pearsall moved for class certification pursuant to Rule 52.08(b)(3), alleging they identified more than 500 members of a class whose property was seized by the police department and transferred to a federal agency, without obtaining approval from the county prosecuting attorney or a circuit judge, since January 1996. The circuit court certified the case as a class action, defining the class as persons whose property was taken and not returned pursuant to the act since January 24, 1996. The police department seeks a writ prohibiting the circuit court from certifying the plaintiffs as a class.

The department argues the plaintiffs and the class they seek to represent do not have a claim pursuant to the act and otherwise lack standing to sue. It asserts the plaintiffs are not challenging the initial seizure of their property or whether their property was forfeitable pursuant to the act but challenge only the transfer of the property to federal authorities pursuant to section 513.647, RSMo. The department argues the statute's purpose is to ensure that proceeds of seized property and money associated with criminal activity go to Missouri school districts, not back to the criminals. It contends the court abused its discretion in certifying a class, arguing the class is not sufficiently ascertainable because membership in the class improperly depends on a determination of the merits of the plaintiffs' claims. The department contends the circuit court failed to meet the required analysis pursuant to Rule 52.08(b)(3) in determining the class.

Ricketts and Pearsall respond that the class certification order should not be vacated because the plaintiffs and the class have standing to sue the police department. They contend all individuals in the class have been harmed by the department's conduct in seizing their property and failing to comply with the act's mandatory requirements. They assert the department did not object to the proposed class definition, which they argue does not require merit determinations. Ricketts and Pearsall further respond that the court met all the requirements for certifying a class pursuant to Rule 52.08(b)(3).

SC89589
Randy Belcher v. State of Missouri
Livingston County
Postconviction DNA testing
Listen to the oral argument:

Belcher was represented during argument by Phillip R. Gibson of Thomason & Gibson LLC of Independence, and the state was represented by Jamie P. Rasmussen of the attorney general's office in Jefferson City.

Randy Belcher pleaded guilty to rape in 1989 and was sentenced to life in prison with the possibility of parole after 15 years. In May 2006, while still incarcerated, Belcher moved for postconviction DNA testing. The motion was not signed under oath and did not include a sworn affidavit describing the underlying facts of the claim. In October 2007, the trial court dismissed the motion. Belcher appeals.

Belcher argues he was denied due process of law pursuant to the Fifth and Fourteenth amendments to the Missouri and United States constitutions, contending he has a right to DNA testing. He further argues section 547.035, RSMo, requires the court to make findings of fact and conclusions of law, which the court did not do here. He contends the court erred in denying testing on the grounds that his motion was not verified at the time of filing and because he was not allowed to file a supplemental affidavit to fix the motion's defect. Belcher asserts his failure to attach an affidavit to a postconviction DNA testing motion at the time the motion is filed should not result in its automatic denial. He argues this Court has provided clear guidance to the lower courts that any defect in verification can be cured while the motion is pending.

The state responds that the plain language of the statute requires that allegations must be made under oath. It argues the circuit court was not required to issue findings of fact and conclusions of law, contending identity was not an issue at trial because the victim knew her attackers and Belcher pleaded guilty.

SC89671
State ex rel. Crown Power and Equipment Company, L.L.C. v. The Honorable Gary E. Ravens
Chariton and Sullivan counties
Evidence protected by attorney work-product doctrine
Listen to the oral argument:

Crown Power & Equipment was represented during argument by Larry J. Tyrl of Tyrl & Bogdan of Overland Park, Kan., and Norfolk Southern Railway was represented by Richard E. McLeod of McLeod & Heinrichs of Kansas City.

Norfolk Southern Railway Company sued Crown Power & Equipment Company LLC for alleged negligence in causing a March 2006 railroad grade-crossing accident in Chariton County. The case went to trial in May 2008 in Chariton County, but Norfolk moved for a mistrial because it believed it could not receive a fair trial based on the answers given by some of the potential jurors during jury selection. Norfolk moved for change of venue and retained a jury consultant to conduct a venue study of Linn, Platte and Sullivan counties. Similarly, Crown consulted with expert Dr. Thomas Beisecker about certain venue issues. Norfolk sought a copy of all of the documents in Beisecker's file for Crown. Crown objected, arguing Beisecker's work unrelated to venue was protected from disclosure as attorney work-product. Norfolk moved to compel the documents, and Crown moved for a protective order for the work. In September 2008, Crown agreed to change venue, but only to Sullivan County. Norfolk wanted the venue changed to Platte County. Two weeks later, the circuit court changed venue to Sullivan County, sustained Norfolk's motion to compel the deposition of Beisecker and the production of his file, and overruled Crowns' motion for a protective order covering Beisecker's work. Crown seeks a writ prohibiting the production of Beisecker's entire file and to limit discovery to the material related to the issue of venue.

Crown argues it is entitled to an order prohibiting Norfolk from compelling Beisecker's deposition and the production of his entire file because any consultation between the expert and Crown's counsel and documents unrelated to the issue of venue are protected from discovery by the attorney work-product privilege. Crown contends its concession to change of venue in September 2008, two weeks prior to court's order granting Norfolk's motion to compel, rendered the motion to compel moot. Crown asserts the expert's file is not discoverable because the Beisecker never was designated as an expert witness expected to testify at trial in accordance with Rule 56.01(b)(4)(b).

Norfolk responds that Crown waived all privileges it held over documents disclosed to Beisecker and all work conducted by Beisecker because Beisecker intended to testify at an evidentiary hearing on Norfolk's application for change of venue. It argues Crown was served with a notice of deposition for Beisecker, which included a list of documents Beisecker was to bring, and Crown did not object. Norfolk asserts that once Beisecker was under oath at the beginning of the deposition, Crown waived the work product protection for any document or communication sent to, created by or received from Beisecker in the course of his work for Crown. Norfolk further responds that, because Crown conceded to Norfolk's application for change of venue only if venue was changed to Sullivan County, the venue motion still may be subject to appeal and Norfolk's motion is not rendered moot.

SC89223
In re: Thomas M. Utterback
City of St. Louis
Attorney Discipline
Listen to the oral argument:

The chief disciplinary counsel, Alan D. Pratzel, of Jefferson City represented his office during argument, and Utterback, of Niceville, Fla., represented himself during argument.

In November 1997, St. Louis attorney Thomas Utterback worked with others in attempting to transport more than $3 million first to Panama and then to Switzerland without declaring the money to customs officials as required by federal law. Utterback was arrested in Switzerland. The resulting investigation showed the money was proceeds from illegal trafficking of controlled substances. In May 1998, Utterback pleaded guilty to transporting money unlawfully and was sentenced to 36 months in prison. He subsequently was disbarred in Missouri. After Utterback was released from prison, he moved to Florida and helped the U.S. attorney's office and other federal investigators from 2004 to 2005. Since then, he twice has sought reinstatement of his Missouri law license, and twice this Court denied his application. Utterback now asks this Court again to reinstate his license.

Utterback argues he has demonstrated remorse and has taken responsibility for his actions. He contends he aided law enforcement authorities immediately upon arrest, throughout the process leading to his guilty plea and again for a year after his release from prison. He also asserts his cooperation and the absence of a victim mitigate the seriousness of his crime.

The chief disciplinary counsel responds that this Court should not reinstate Utterback because he has not met his burden of showing he is of good moral character. The counsel argues cooperating with law enforcement authorities does not equate to good moral character. The counsel asserts reinstatement of Utterback's law license would undermine the public's confidence in the judicial system given the severity of the offense.