Case Summary for December 9, 2014

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Case Summary for December 9, 2014

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, December 9, 2014
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SC94096
State of Missouri v. Marcus Merritt
St. Louis city
Constitutional validity of statute prohibiting felons from possessing firearms
Listen to the oral argument:

SC94096.mp3
The state was represented during arguments by Solicitor General James R. Layton of the attorney general's office in Jefferson City; Merritt was represented by Matthew W. Huckeby of the public defender's office in St. Louis.

The state charged Marcus Merritt in January 2013 with three counts of the class C felony of unlawful possession of a firearm, one count of possession of a controlled substance and one count of possession of drug paraphernalia. The indictment alleged that Merritt had been convicted in 1986 in federal court for felony distribution of phyncyclidine (PCP) and subsequently knowingly possessed three weapons. In May 2013, Merritt moved to dismiss the firearm charges, alleging that section 571.070, RSMo – the statute on which they were based – violated the state constitution. He argued the statute is unconstitutionally retrospective and is an unconstitutional absolute ban on his right to possess a firearm solely because he is a convicted felon. The circuit court in July 2013 issued an order dismissing the firearm charges, and Merritt pleaded guilty to the remaining drug charges. The state appeals.

The state argues the circuit court erred in dismissing the three firearm charges against Merritt. The state contends section 571.070 is constitutional. It asserts the recent amendment to article I, section 23 of the state constitution – taking effect in September 2014 – is a procedural, rather than a substantive, change in the law because the right to keep and bear arms existed in the previous version of the constitutional provision. As such, the state argues, the amendment should be applied prospectively only. The state contends that section 571.070, as applied to Merritt, is not unconstitutional because it is narrowly tailored to effectuate the compelling governmental interest in prohibiting all felons from possessing firearms, thereby protecting public safety and reducing the number of firearm-related and violent crimes in the state. Alternatively, the state asserts that section 571.070, under which Merritt was charged, does not violate article I, section 23 as it existed at the time of the conduct underlying the crimes with which Merritt was charged. The state argues the recent amendment to this constitutional provision does not apply to Merritt’s case. The state contends the statute is a proper exercise of the state’s police power under the state constitution as it existed at the time of the criminal conduct. The state additionally asserts that, as a criminal statute, section 571.070 is not subject to the prohibition against retrospective laws contained in article I, section 13 of the state constitution. The state contends the constitutional ban on retrospective laws relates exclusively to civil rights and remedies and has no application to crimes and punishments.

Merritt responds that the circuit court did not err in dismissing the firearm charges against him. He argues that section 571.070 violates both the state and federal constitutions because it is an absolute ban on his constitutional right to possess a firearm, as guaranteed by article I, section 23 of the state constitution as well as the second and 14th amendments to the federal constitution. He contends the state failed to preserve for appellate review its arguments relating to article I, section 23 because the state’s response to his motion to dismiss addressed only his claim that the statute violated article I, section 13 but failed to address his claim that the statute also violated article I, section 23. Merritt agrees that the new amendment is procedural, not substantive, but he asserts that it should apply prospectively to all cases arising after the amendment became effective in September 2014 and should apply retrospectively to all cases such as his that were pending on review or otherwise not final as of the effective date. Merritt argues section 571.070 is not narrowly tailored to effectuate any compelling governmental interest because the state does not have a compelling governmental interest in banning all convicted felons under all circumstances from possessing firearms for life. Alternatively, Merritt responds that section 571.070, as applied to him, is an unconstitutional absolute ban on his constitutional right to possess a firearm solely because he is a convicted felon. He contends that the statute places an improper time, place and manner restriction on his constitutional right to bear arms. He asserts there is no substantial relationship between banning all convicted felons under all circumstances from possessing firearms for life and protecting the public’s health, safety, morals or welfare. Merritt further responds that, to the extent the circuit court’s dismissal of the firearm charges against him could have been based on the state constitutional ban on retrospective laws in article I, section 13, this ban does not apply to criminal statutes such as section 571.070.

Senator Kurt Schaefer – the legislative sponsor of the amendment to article I, section 23 – argues, as a friend of the Court, that the purpose of the amendment was to bring the state constitution in line with recent United States Supreme Court decisions regarding the federal constitutional right to bear arms provided in the Second Amendment. He contends that, as with other statutes governing felons in possession of firearms, section 571.070 should be presumed constitutional under the Second Amendment. Schaefer asserts that no provision of the amendment extends the state constitutional right to keep and bear arms beyond that provided in the Second Amendment. He argues that the rights set forth in article I, section 23, apply only to “citizens,” which excludes felons such as Merritt. Schaefer contends that the statement in article I, section 23 that the right to keep and bear arms is “unalienable” does not mean that a person cannot forfeit such a right by being found guilty of committing a crime through due process of law. Schaefer asserts that, although the amendment contains language permitting the legislature to enact laws limiting the gun rights of convicted violent felons or those adjudicated by a court to be a danger to themselves or others as a result of a mental illness, this language should not be construed as an exhaustive list limiting the legislature’s authority to restrict the right to possess firearms to only those two categories of persons.

SC94096_State_amended_brief.pdf

SC94096_Merritt_amended_brief.PDF

SC94096_State_Amended_Reply_brief.pdf

SC94096_Schaefer_amicus_brief.pdf

SC94418
In re: Eric Alexander Farris
Taney County
Attorney discipline
Listen to the oral argument:

SC94418.mp3
The chief disciplinary counsel was represented during arguments by Sam S. Phillips of the chief disciplinary counsel's office in Jefferson City; Farris, of the Farris Law Group LLC in Branson, represented himself.

This case involves the settlement proceeds of personal injury cases Branson attorney Eric Farris handled for two couples. Both cases were settled in September 2010. The first couple’s case settled for $197,500; the second couple’s case settled for $90,000 plus expenses. Farris deposited the proceeds of both settlements into his trust account.

The first couple’s settlement was subject to a lien of about $114,600 filed by the hospital that had provided the medical treatment to the wife; she believed Farris was going to negotiate with the hospital to reduce the lien amount. Over the course of 13 months, she made multiple attempts to contact Farris – either by telephone or in person – to determine when she would receive the settlement proceeds. He failed to return some calls, cancelled some appointments and told her several times he would get back with her in a few weeks. Farris ultimately paid her two checks – one for $50,000 in January 2011 and the other for about $31,750 in October 2011. The second check was returned due to insufficient funds in Farris’ trust account, triggering a notice to the office of the chief disciplinary counsel. Farris ultimately paid the wife $15,000 over several installments. Although the wife was provided a distribution summary showing the hospital had been paid, she later learned the hospital still was owed nearly $106,380.

After the notice regarding the returned check in the first couple’s case, the chief disciplinary counsel’s office audited Farris’ trust account. The audit revealed that no medical bills had been paid on their behalf – contradictory to the distribution summary the second couple had been given – Farris was paid $30,000 in attorney fees and the couple received about $32,500. The audit of Farris’ trust account also revealed that credit card fees were charged to the trust account but were not reimbursed from Farris’ operating account, that transfers of almost $735,000 were made from the trust account to the operating account without reference to specific client funds used or fees earned to justify the transfers, that most withdrawals from the trust fund were in lump sum amounts, and that funds were moved from the trust account to pay for overdrafts on the operating account. During the chief disciplinary counsel’s investigation, Farris indicated he could not locate certain files for the two couples.

Following a hearing, a regional disciplinary hearing panel issued its decision finding that Farris violated certain rules of professional conduct and recommending that his law license be suspended with no leave to apply for reinstatement for six months. Both the chief disciplinary counsel and Farris reject the recommendation as to the sanction.

The chief disciplinary counsel asks this Court to disbar Farris. The counsel argues that the record shows Farris violated rules of professional conduct and is subject to discipline by this Court. As to Farris’ representation of both couples, the chief disciplinary counsel contends Farris violated Rule 4-1.15 by failing to deliver to his clients and their medical providers funds they were entitled to receive and by failing to store securely their client files for 10 years after completing his representation of them; Rule 4-8.1 by failing to respond to a lawful demand for information from the chief disciplinary counsel’s office; Rule 4-8.4(c) by engaging in conduct involving dishonesty, fraud, deceit and misrepresentation; and Rule 4-8.4(d) by engaging in conduct prejudicial to the administration of justice. As to Farris’ representation of the first couple, the counsel asserts Farris also failed to respond promptly to the wife’s reasonable requests for information, in violation of Rule 4-1.4. As to Farris’ representation of the second couple, the chief disciplinary counsel asserts Farris also misappropriated the couple’s funds, in violation of Rule 4-1.15. The chief disciplinary counsel argues that disbarment is the appropriate sanction. The counsel contends Farris violated rules for safekeeping property; misappropriated client and third-party funds; acted deceitfully and dishonestly toward his clients, the chief disciplinary counsel’s office and the disciplinary hearing panel; and failed to comply with the requirements of other rules of professional conduct. The counsel asserts disbarment is appropriate under the American Bar Association standards for imposing sanctions against attorneys. The counsel further asserts that this Court has ruled that attorneys who steal money and engage in dishonest and deceitful conduct should be disbarred.

Farris asks that this Court either not discipline him at all or, should it conclude he should be disciplined, that it place him on probation. Farris responds that the chief disciplinary counsel did not prove, by a preponderance of the evidence, that he engaged in professional misconduct. He argues the evidence does not establish that he engaged in misappropriation, misrepresentation or deceit or that he failed to communicate or keep client property safe in his handling of client and third-party funds in both clients’ cases. He contends the evidence also does not establish that he engaged in deceit, dishonesty or misrepresentation or that he presented false evidence to the chief disciplinary counsel’s office. He asserts that the evidence does not establish that he failed to cooperate with the chief disciplinary counsel’s investigation or failed to retain his client files for 10 years as required by the rules of professional conduct. Farris responds that the evidence instead showed that his former wife had taken control of the administrative aspects of his law firm, especially after he suffered certain medical issues in 2009 and 2010. He argues that he did not know there were insufficient funds in his trust account until after the chief disciplinary counsel’s investigation began and that he did not know payments to the first couple’s hospital were not made until he met with the regional disciplinary committee. He contends that it was his former wife – not him – who made all the improper transfers in question from his trust account to his operating account. He asserts there is no evidence that he intended to misappropriate any funds or that he personally misrepresented any of the missing funds. Farris responds that this Court should not disbar him. He argues the chief disciplinary counsel failed to prove, by a preponderance of the evidence, that disbarment is an appropriate sanction. Farris contends he has retaken control over the administrative aspects of his law practice and has taken corrective steps to ensure the proper operation of his trust account. He asserts that mitigating factors support a lesser sanction under American Bar Association standards, that this Court’s precedent supports a stay on any discipline, and that this Court can fashion adequate conditions of probation that will protect the public and the bar.

SC94418_Chief_Disciplinary_Counsel_brief.pdf

SC94418_Farris_brief.pdf

SC94418_Chief_Disciplinary_Counsel_reply_brief.pdf

SC94449
In re: Joby J. Raines
Saline County

Per Court order of October 28, this case was removed from the December 9 docket for rescheduling at a later date.