Case Summary for November 1, 2016

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Case Summary for November 1, 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. Tuesday, November 1, 2016
____________________________________________________________________________________________________

SC95451
Richard Scott Mercer v. State of Missouri
Dent County
Challenge to denial of request for post-conviction DNA testing
Listen to the oral argument:

SC95451.mp3
Mercer was represented during arguments by Jennifer Bukowsky of Bukowsky Law Firm LLC in Columbia; the state was represented by Solicitor General James Layton of the attorney general’s office in Jefferson City.

Following trial, a jury in March 2008 found Mercer guilty of second-degree statutory rape and incest. The circuit court sentenced him to consecutive prison sentences of 15 years and seven years, respectively. The court’s judgment was affirmed on direct appeal. Mercer subsequently sought post-conviction relief, which the circuit court denied. This judgment also was affirmed on appeal. In October 2013, Mercer filed a motion seeking post-conviction DNA testing pursuant to section 547.035, RSMo. The circuit court ordered the state to show cause why the motion should not be granted and ordered the circuit clerk to provide the court with a copy of the trial transcript. The state did not file a formal response to the order to show cause. In April 2014, a docket entry was made in Mercer’s case file titled “Case Review Held” and stated that the court had called the cause and overruled Mercer’s motion. The judge did not sign the docket entry, and the docket entry had no accompanying document. According to Mercer, he twice inquired of the court about the status of his motion but did not learn about the order until October 2014, when the docket sheets were mailed to him. Mercer asks this Court to review the circuit court’s ruling.

This case presents several questions for the Court involving whether the circuit court should have granted Mercer’s motion for post-conviction DNA testing and whether its failure to do so violated Mercer’s constitutional rights to due process. Procedural issues involve whether state statutes entitle Mercer to an appeal in this case and whether the circuit court’s ruling is a final, appealable judgment. Substantive issues include whether the circuit court should have waited for the state to show cause why the motion should not be granted before issuing its ruling; whether the circuit court’s docket entry overruling the motion violated section 547.035 by not explaining the specific bases in fact and law for the court’s decision; and whether the circuit court’s ruling denied Mercer an opportunity to present evidence of innocence.

SC95451_Mercer_brief.pdf

SC95451_State_brief.pdf

SC95451_Mercer_reply_brief.pdf

SC95713
In the Matter of the Petition of Missouri-American Water Company for Approval to Change its Infrastructure System Replacement Surcharge (ISRS), and Missouri Public Service Commission v. Office of Public Counsel
St. Louis County
Challenge to order allowing water utility to recover certain infrastructure costs
Listen to the oral argument:

SC95713.mp3
The office of public counsel was represented during arguments by Tim Opitz of the public counsel’s office in Jefferson City; the public service commission was represented by Jennifer Heintz of the commission in Jefferson City; and the water company was represented by Erwin Switzer of Greensfelder, Hemker & Gale PC in St. Louis.

Regulated utilities typically are compensated through general rate cases determined by the state’s public service commission. In 2003, the state legislature authorized the commission, upon petition by an eligible water corporation, to change customer rates through an infrastructure system replacement surcharge. Under the statute, eligibility to apply for such a surcharge is based in part on the number of inhabitants in the county where the company provides water service. In February 2015, Missouri-American Water Company filed a petition to change its infrastructure system replacement surcharge. Specifically, it sought more than $1.9 million in additional revenue through the surcharge to recover costs it incurred in replacing infrastructure in St. Louis County from October 2014 through January 2015. Commission staff recommended rejecting the increase, contending the petition impermissibly asked to recover surcharge costs in excess of the 10-percent cap established by section 303.1003.1, RSMo. Following an evidentiary hearing, the commission issued its report and order in June 2015. It granted the company’s petition with conditions. The office of public counsel sought rehearing, contending for the first time that St. Louis County did not have sufficient inhabitants for Missouri-American to file its petition under the statutory eligibility requirements and, therefore, that the commission lacked authority to grant the relief the company had requested. The commission denied rehearing. The office of the public counsel appeals.

This appeal raises questions for the Court involving the lawfulness of the commission’s order. Procedural issues involve whether the water company’s most recent rate case, in which its infrastructure system replacement surcharge was reset to zero, makes this appeal moot and whether the office of public counsel waived the population issue by not raising it until its application for rehearing. Substantive issues include the manner in which a county’s population is determined under the statute; the effect, if any, of subsequent population changes on the statutory criteria; and whether the water company met the statutory criteria to file a petition to change its infrastructure system replacement surcharge. Other substantive issues involve whether the commission’s order permitting the company to recover revenues beyond the 10-percent cap violates the plain language of the statute or guarantees infrastructure cost recovery.

Several organizations filed briefs as friends of the Court. St. Louis County and the St. Louis Regional Chamber focus on how and when a county’s population should be determined under the statute. The Missouri Chamber of Commerce and Industry and the Missouri Municipal League both focus on the statutory interpretation of the population requirement. A local utility workers union focuses on policy issues, arguing the commission’s order protects local jobs and ensures public safety and the integrity of systems to deliver safe, clean water to customers.

SC95713_Public_Counsel_brief.pdf

SC95713_Public_Service_Comm'n_brief.pdf

SC95713_Missouri-American_Water_Co_brief.pdf

SC95713_Public_Counsel_reply_brief.pdf

SC95713_St_L_County_and_Regional_Chamber_amici_brief.pdf

SC95713_Utility_Workers_of_America_Local_Union_335_amicus_brief.pdf

SC95713_MO_Chamber_amicus_brief.pdf

SC95713_MO_Municipal_League_amicus_brief.pdf

SC95655
State ex rel. Kendrick Tipler v. The Honorable Michael Gardner
Cape Girardeau County
Retroactivity of constitutional amendment addressing prosecution of sex crimes against children
Listen to the oral argument:

SC95655.mp3
Kipler was represented during arguments by Leslie Hazel of the public defender’s office in Kennett; the state was represented by Greg Goodwin of the attorney general’s office in Jefferson City.

Kendrick Tipler pleaded guilty to endangering the welfare of a child by having sexual contact, in July 2005, with a child younger than 17 years old. Based on conduct that allegedly occurred in the last quarter of 2013, the state charged Tipler with attempted statutory sodomy. In November 2014, article I, section 18(c) of the state constitution took effect. That provision permits the state – in prosecuting sex crimes against a victim younger than 18 years – to present evidence of the defendant’s prior criminal acts, charged or uncharged, to corroborate the victim’s testimony or to demonstrate the defendant’s propensity to commit the charged crime. Tipler’s first trial, held in December 2015, ended in a mistrial after the jury was unable to reach a unanimous verdict. In February 2016, Tipler moved to exclude evidence of prior crimes, evidence of prior bad acts or evidence to show he had a propensity to commit the charged crime. The state then filed notice of its intent to produce evidence of prior criminal acts in its case against Tipler pursuant to article I, section 18(c). Following a hearing, the circuit court entered its order overruling Tipler’s motion, granting the state’s motion and specifically allowing the state to use article I, section 18(c) to present propensity evidence. Tipler moved to reconsider, arguing the constitutional provision could not be applied retroactively. The circuit court overruled his motion to reconsider. Tipler now seeks relief from this Court.

This case presents one primary question for the Court – whether the circuit court may apply article I, section 18(c) retroactively in the presentation of evidence in Tipler’s upcoming trial. A related issues involves whether this Court’s prior decision in State v. McCoy requires constitutional amendments only to be applied prospectively unless the amendment clearly, explicitly and unequivocally requires otherwise. Other issues involve whether article I, section 18(c) is a rule of evidence that can be applied to a future trial as well as whether the constitutional amendment affects procedural rights that may be applied retroactively or substantive rights that are presumed to apply prospectively.

The Missouri Association of Prosecuting Attorneys, which filed a brief as a friend of the Court, argues article I, section 18(c) is evidentiary and should apply to all trials that occur after the amendment was adopted.

SC95655_Tipler_brief.pdf

SC95655_State_brief.pdf

SC95655_Missouri_Assoc_Prosecuting_Attorneys_amicus_brief.pdf

SC95688
In re: Jason Henry
Howell County
Attorney discipline
Listen to the oral argument:

SC95688.mp3
The chief disciplinary counsel, Alan Pratzel of Jefferson City, represented his office during arguments; Henry was represented by Bob Russell of Kempton & Russell in Sedalia.

West Plains attorney Jason Henry represented an inmate in connection with a petition for certain relief in the federal district court. The federal court denied the relief requested. The inmate subsequently sent the court a letter complaining of unethical behavior by Henry. Attached to the letter was an e-mail from Henry to the inmate’s wife in which Henry made disparaging remarks about the federal judge who decided the inmate’s case, referred to the federal judge using a racial epithet and called the author of a unanimous appellate opinion an idiot. The federal judge filed an ethics complaint against Henry, forwarding the letter and e-mail to the state’s office of chief disciplinary counsel. During the subsequent investigation, Henry advised that he had apologized to the federal judge. The chief disciplinary counsel began disciplinary proceedings against Henry. As his February 2016 hearing neared, Henry sent e-mails to the disciplinary hearing panel’s presiding officer that were increasingly agitated. After learning the chief disciplinary counsel would recommendation disbarment, Henry left him accusatory voicemails. During the hearing, Henry testified about his use of the racial slur and other insulting references. He interrupted opposing counsel, responded in an aggressive or confrontational manner when questioned by opposing counsel, and made off-hand remarks about opposing counsel. He presented testimony that his Asperger’s syndrome affected his conduct and asked that this condition be considered as mitigation evidence. At the conclusion of the hearing, counsel for the chief disciplinary counsel’s office asked that the hearing panel recommend that Henry be disbarred or suspended with conditions requiring Henry to undergo psychological counseling and help for anger management issues prior to reinstatement. In its March 2016 decision, the disciplinary hearing panel found that Henry violated rules of professional misconduct by making false or reckless statements concerning the integrity of judges or the judiciary and by manifesting racial bias or prejudice in representing a client. Two panel members recommended that Henry’s license be suspended with no leave to apply for reinstatement for one year; the third panel member recommended disbarment. Both Henry and the chief disciplinary counsel rejected the hearing panel’s decision. The chief disciplinary counsel now asks this Court to disbar Henry.

This case presents two questions for the Court – whether Henry violated the rules of professional misconduct and, if so, what discipline is appropriate.

SC95688_Chief_Disciplinary_Counsel_brief.pdf

SC95688_Henry_brief.pdf

SC95688_Chief_Disciplinary_Counsel_reply_brief.pdf