Case Summary for January 17, 2008

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Case Summary for January 17, 2008

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. Thursday, January 17, 2008

_______________________________________________________________________________________________________

SC88647
City of Arnold v. Homer R. Tourkakis, et al.
Jefferson County
Eminent domain
Listen to the oral argument:

The city was represented during argument by Gerard T. Carmody of St. Louis, and Tourkakis was represented by Timothy Sandefur of Sacramento, Calif.

Homer Tourkakis owns a building in the city of Arnold that he converted into an office for his dental practice. In September 2005, the city council adopted ordinances declaring the area, including Tourkakis' property, blighted pursuant to the Missouri tax increment financing act. The council approved a redevelopment plan to build "the Arnold Triangle" and began acquiring properties in the redevelopment area. Tourkakis did not sell his property to the city and, in June 2006, the city sought to acquire it by eminent domain. Tourkakis moved to dismiss the city's action, arguing third-class cities do not have the power to condemn blighted property because the constitution permits only constitutionally charted cities and counties to condemn property to eliminate blight and effectuate redevelopment plans. The trial court dismissed the case with prejudice, finding the city did not have the power to condemn blighted property. The city appeals.

The city argues it has express legal authority to condemn Tourkakis' property. It contends that the act authorizes it to condemn property for the redevelopment of blighted areas and that article VI, section 21 of the Missouri Constitution confirms, rather than limits, the legislature's inherent power to authorize the use of eminent domain to clear blighted, substandard or unsanitary areas. The city asserts the act is constitutionally valid to the extent it authorizes eminent domain by non-charter municipal entities.

Tourkakis responds that the act does not grant third-class cities statutory authority to engage in condemnation for redevelopment of purportedly blighted areas. He argues that the constitution does not permit non-charter cities to use eminent domain for redevelopment without specific legislative authorization and that this Court should avoid this constitutional question by construing the act narrowly. Tourkakis contends public policy militates against expanding the act or construing the constitution broadly to allow third-class cities to use eminent domain for redevelopment.

The Missouri Municipal League argues, as a friend of the Court, that the state constitution reserves to the legislature power not otherwise limited and that any limit must be construed strictly in favor of the legislature's power. The league contends, therefore, that the circuit court should not have assumed the constitution had to grant the power specifically to third-class cities. It asserts that, because the act's language has no ambiguity, it should be given its plain meaning. The league argues limitations on the power to blight and acquire property to redevelop should be construed strictly. It further contends the rules of statutory construction require a different interpretation than the circuit court's interpretation of the act.

The National Federation of Independent Business Legal Foundation argues, as a friend of the Court, that the city does not have the power to condemn. It contends the state constitution restricts eminent domain authority to constitutionally chartered cities and counties. The foundation asserts that condemning Tourkakis' property is prohibited because the taking cannot be for a private use and the city's redevelopment plan is for the private use of Arnold Triangle Development, L.L.C. The foundation argues public policy favors tighter scrutiny of public seizures of private property for private redevelopment.

The Show Me Institute argues, as a friend of the Court, that the Missouri Constitution protects citizens' property rights and that eminent domain is only a limited extension of the state's police power for improving areas where conditions are detrimental to the health, safety and welfare of the cities that are authorized to act under the section. The institute contends this Court's recent eminent domain decisions have rendered constitutional protections for property rights practically nonexistent. It asserts that, in the absence of judicially enforced constitutional constraints, Missouri's non-charter cities have imposed great hardship on thousands of citizens by using "blight" to threaten the use of eminent domain in the pursuit of economic development.

The Institute for Justice argues, as a friend of the Court, that courts across the country strictly construe statutes granting the authority to use eminent domain. It contends Missouri's act does not grant non-charter cities authority to use eminent domain for "blight" removal. The institute asserts that a decision in the city's favor, without legislative sanction, would expand the potential for the abuse of eminent domain for private use in Missouri.

SC88559
Ed Taylor v. State of Missouri, et al.
Ste. Genevieve County
Costs for permits issued prior to repeal of conceal and carry law
Listen to the oral argument:

Taylor was represented during argument by Denise D. Lieberman of St. Louis, and the state was represented by Paul C. Wilson of the attorney general's office in Jefferson City.

In 2003, the legislature passed the state's conceal and carry act. Following a lawsuit challenging that act, this Court in February 2004 held the act was an unconstitutional unfunded mandate under the state constitution's Hancock Amendment, but it limited its holding to the four counties – Camden, Cape Girardeau, Greene and Jackson counties – that had presented evidence of the costs they would incur under the act. Brooks v. State, 128 S.W.3d 844 (Mo. banc 2004). During its 2005 session, the legislature passed a new act that repealed and replaced the old act and that purported to fix its Hancock Amendment violations. The governor signed the new act into law in July 2005.

In March 2005, Ed Taylor filed a lawsuit in Ste. Genevieve County challenging the validity of the state's original conceal and carry act under the Hancock Amendment. He alleged the act required the county to engage in new and expanded activities and services and, thereby, to incur additional costs not appropriate under the amendment. His claim concerns permits issued before July 2005. In December 2006, the circuit court granted summary judgment to the state, finding that the 2005 legislation made Taylor's claims moot. Taylor appeals.

Taylor argues his case is not moot. Rather, he contends that his claims are ripe under Brooks and that he is entitled to relief under Brooks. Taylor asserts that, in Brooks, this Court required claims to be brought on a county-by-county basis to prove they had processed applications to show the ripeness of the constitutional violation in each specific county. He argues the 2005 legislation did not nullify Brooks or moot his claims. Taylor contends the original act, as applied to permits issued in Ste. Genevieve County, is invalid and constitutes a constitutionally prohibited unfunded mandate because the county incurred costs for new or increased services or activities in complying with the original act. Taylor further asserts the state constitution entitles him to costs and reasonable attorney's fees.

The state responds that Taylor's claim is moot, that Brooks is nullified in light of the repeal of original act and, therefore, that there is no effective relief for this Court to grant. It argues Taylor is not entitled under the constitution to a "remand" for an award of his costs and attorney's fees because his claim was not "sustained." The state contends Taylor's claim fails on the merits as well. It asserts he failed to provide sufficient, specific evidence of unfunded, state-mandated new or increased costs to the county. It further asserts that a political subdivision's voluntary expenditure of funds does not equal the state's violation of Hancock Amendment, noting that the application fees Ste. Genevieve County received covered its costs in processing the applications. The state responds that, because the 2005 legislation rectified the Hancock problems, Taylor now is seeking relief that Missouri law does not provide. It argues Taylor also failed to join necessary parties whose rights would be affected by this judgment.

SC88720
In re: William R. Merryman
Jackson County
Attorney discipline
Listen to the oral argument:

The chief disciplinary counsel was represented during argument by Sam S. Phillips of Jefferson City, and Merryman was represented by Thomas J. Fritzlen Jr. of Kansas City.

In October 2002, Dale Mort paid Kansas City attorney William Merryman $1,000 to file for bankruptcy for him. Merryman did not deposit the money in a client trust account and does not know what happened to the money. He did not perform any legal services but did repay the money to Mort with interest, making payments in April and December 2004 and September 2006. In November 2002, Susan Merritt paid Merryman $750 to file for bankruptcy for her. He did not perform any legal services for her, did not return her phone calls and did not know her wages were being garnished. After Merritt discovered Merryman had not filed her bankruptcy petition, she filed a complaint against him in April 2003. In December 2004, he refunded her money, without interest. Merryman also was hired to represent Vincent Coker for injuries Coker sustained in 1997. When Coker met with Merryman in January 2003 about his worker's compensation case that was scheduled for the next day, Merryman was intoxicated and told Coker he would meet with him the next morning. Merryman did not appear at Coker's hearing the next day because he was intoxicated.

Merryman began attending Alcoholics Anonymous meetings in 1998 but has relapsed multiple times between the fall of 2002 and 2006, when he also was convicted of driving while intoxicated. In January 2003, Merryman checked himself into a residential treatment facility for men recovering from drug and alcohol addiction and stayed for a year. While he was there, he did little to contact his clients to let them know where he was or how to contact him, and he did not notify the Supreme Court clerk of his address change. In 2005, Merryman filed for bankruptcy because he could not pay his $300,000 in medical bills. He continues to have other health issues. From 2000 to 2004, Merryman also failed to report that he had complied with the continuing legal education requirements of Rule 15, even though he was practicing law from 2002 through 2005.

In June 2007, a disciplinary hearing panel concluded that Merryman had violated 12 ethics rules: Rule 4-1.1 (competence), three violations of Rule 4-1.3 (diligence), three violations of Rule 4-1.4 (communication), Rule 4-1.15(a) (holding client's property separate from lawyer's property), Rule 4-1.15(b) (delay in returning client property), two violations of Rule 4-1.16(d) (delay in returning unearned fee) and Rule 4-5.5 (practicing while not CLE compliant). The panel noted that Merryman previously had accepted six admonitions issued by regional disciplinary committees in Kansas City between 1994 and 2001 for violating four ethics rules. The panel recommended that Merryman be suspended with no leave to apply for reinstatement for 12 months. It further recommended that Merryman not be reinstated unless he: successfully completed an alcohol treatment program; continued to attend regularly scheduled meetings of Alcoholics Anonymous; maintained sobriety for 12 months; successfully completed the terms of his probation arising from his 2006 conviction for driving while intoxicated; obtained and maintained malpractice insurance of not less than $250,000 per annual occurrence and $500,000 in the aggregate; and paid the costs of this action.

The chief disciplinary counsel asks this Court to discipline Merryman's law license accordingly, arguing Merryman violated the 12 ethics rules. He contends Merryman knowingly disregarded multiple clients' interests. He asserts that Merryman agreed to represent Coker, Merritt and Mort but abandoned the representations without taking any of the steps required to protect his clients' interests. He further asserts that the clients Merryman were particularly vulnerable. The counsel argues that, despite Merryman's substantial experience practicing law, he has many prior admonitions, is guilty of multiple rule violations and practiced law for four years while he was not compliant with his continuing legal education requirements.

Merryman agrees that this Court should discipline him, but he argues the factors in his case support only a reprimand or a suspension without probation.

SC88279
David Zink v. State of Missouri
St. Clair County
Postconviction relief in a death penalty case
Listen to the oral argument:

Zink was represented during argument by William J. Swift of the public defender's office in Columbia, and the state was represented by Andrew W. Hassell of the attorney general's office in Jefferson City.

David Zink was charged with the July 2001 kidnapping and killing of Amanda Morton. Throughout 2002 and 2003, Zink's public defender moved to continue the case based on cuts in the public defender's office and a shortage of attorneys. Ultimately Zink represented himself and allowed public defenders to assist in his July 2004 trial. The jury found him guilty of first-degree murder. Public defenders represented Zink for the penalty phase of the case, during which the state produced evidence about Zink's prior conviction for rape and kidnapping. Zink was sentenced to death. On direct appeal, this Court affirmed Zink's conviction and sentence, finding that the trial court informed Zink about the perils of proceeding pro se (on his own) and his right to counsel and that Zink knowingly, intelligently and voluntarily waived counsel during the guilt phase. State v. Zink, 181 S.W.3d 66 (Mo. banc 2005). Zink subsequently sought postconviction relief. The circuit court overruled his motion, and Zink appeals.

Zink argues he was denied his constitutional rights to due process, freedom from cruel and unusual punishment and effective assistance of counsel.

Zink argues his self-representation decision was not knowingly, intelligently and voluntarily made, and the public defender was ineffective by failing to give Zink's case the attention it required in light of Zink's mental illness to prevent self-representation. He contends he was prejudiced because of prejudicial evidence being introduced, he was required to wear a shackling devise that was made visible to the jury because it caused him to limp, and he was not allowed to approach witnesses with exhibits. He asserts the trial court did not advise him of restrictions self-representation imposed. Zink argues his Rule 29.15 hearing was a meaningless, illusory formality ruled on by the attorney general, not a judge exercising independent judgment, because the motion court signed the attorney general's findings. He contends the motion court erred in overruling his 29.15 claim and for failing to object to police officials being courtroom security and also the state's witnesses.

Zink further argues his counsel, who handled the death penalty phase, was ineffective for failing to obtain a PET scan, to call a doctor to testify to its results showing Zink has organic anatomical physiological brain damage, and to combine that with evidence the damage was caused by Zink's childhood meningeal encephalitis, thereby explaining Zink's mental impairments' causes. In light of this evidence he would not have been convicted of first degree murder or at minimum sentenced to life. Zink asserts his counsel was ineffective for failing to object to penalty arguments made by the state including the prosecutor's saying he always seek death for killing a young girl; equating the victim's death to soldiers' deaths in battles; saying exercising mercy equaled weakness; saying the jury had to send a message about killing young girls, and that the jury's duty was to impose death to show good triumphs over evil. Zink contends his counsel was ineffective for failing to object to the state's arguments that Zink presented dual defenses to deceive the jury, that the jury had a "duty" to convict of first degree murder and reflection for a "millisecond" was sufficient for deliberation. He claims counsel was ineffective for failing to object to a doctor's hearsay testimony about autopsy findings and for failing to object to argument based on that evidence because Zink was denied his right to confront witnesses against him and effective assistance in that counsel would have objected to this hearsay as violating Crawford v. Washington and continued to object when the state relied on it in argument. Zink argues the motion court clearly erred in denying discovery and a hearing on the claim Missouri's method of lethal injection constitutes cruel and unusual punishment. He contends the motion court clearly erred in submitting the penalty instructions in violation of Ring v. Arizona and Apprendi v. New Jersey, failed to make required factual findings, ensure the state satisfied the beyond a reasonable doubt burden, and failed to instruct on what to do when mitigators and aggravators are equally balanced.

The state responds Zink's counsel was not ineffective for failing to obtain a PET scan, nor for failing to call a doctor as a trial witness to testify that Zink has "organic anatomical physiological brain damage." It argues trial counsel was not ineffective for failing to object to the prosecutor's closing argument in the penalty phase. The state asserts Zink's counsel was not ineffective for failing to object to Zink's hidden leg restraint or to the prosecutor's guilt-phase closing arguments. It contends Zink was competent to waive counsel. The state further responds the motion court did not err in signing the state's proposed findings or in allowing Zink to voluntarily dismiss his claim that trial witnesses provided courtroom security. It argues Zink's challenge to Missouri's lethal injection procedure is premature. It contends the direct appeal counsel was not ineffective for failing to argue that the penalty phase jury instruction conflicted with Ring and Apprendi.