Case Summary for March 23, 2011

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Case Summary for March 23, 2011

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. Wednesday, March 23, 2011

____________________________________________________________________________________________________

SC91025
Barbara Manzara and Keith Marquard v. State of Missouri, et al.
Cole County
Constitutional challenge to act granting tax credits to certain redevelopers
Listen to the oral argument:

Manzara and Marquard were represented during arguments by Irene J. Smith, a solo practitioner in St. Louis; the state was represented by State Solicitor James R. Layton of the attorney general's office in Jefferson City; and Northside was represented by Paul J. Puricelli of Stone, Leyton & Gershman in St. Louis.

In August 2009, an amended version of section 99.1205, RSMo the distressed land assemblage tax credit act – went into effect. The act provided that qualifying redevelopers are eligible to apply for a tax credit if the land they sought to redevelop was in a “qualified census tract” or “distressed community.” Barbara Manzara and Keith Marquard reside within a qualified census tract. In 2009, Manzara and Marquard filed a petition for declaratory judgment against the state, challenging the validity of the act. The state responded that Manzara and Marquard lacked the standing to sue. Northside Regeneration LLC – a redeveloper – intervened as a defendant, also arguing Manzara and Marquard lacked the standing to sue. The trial court ruled Manzara and Marquard lacked standing and upheld the act as valid. Manzara and Marquard appeal.

Manzara and Marquard argue the trial court erred in finding they lacked standing because, as taxpayers, they have standing to challenge illegal expenditures of state revenue. They contend the trial court erred in holding they did not challenge the tax credit as an illegal expenditure. Manzara and Marquard assert that this Court previously held the allowance of a tax credit constitutes a grant of public money and property and that their challenge of the act as an unconstitutional grant of public money and property effectively challenged the tax credit as an illegal expenditure. Finally, they argue the trial court erred in upholding the act because the act permits a grant of public money or public property or a lending of public credit to private entities.

The state responds that Manzara and Marquard do not have standing to sue as taxpayers because it was another taxpayer in the qualified census tract in which Manzara and Marquard reside who purchased property certified as eligible for the tax credit; therefore, Manzara and Marquard have not established they have standing to invalidate a tax credit given to a third party. The state argues the tax credit, and similar credits and other tax reductions, are not public money. Alternatively, the state argues that even if the tax credit constitutes public money, the tax credit is valid because it is restricted to a public purpose: the redevelopment of economically disadvantaged areas.

Northside responds that Manzara and Marquard do not have standing to sue as taxpayers because the tax credits do not involve the spending of tax revenue. Northside argues the trial court properly upheld the act because the act’s primary intent and effect is to serve the public purpose of fostering redevelopment of blighted and historically disadvantaged areas.

SC91130
Michelle Shaefer, et al. v. Christopher Koster, Attorney General of the State of Missouri
Cole County
Constitutional challenge to DWI statute
Listen to the oral argument:

The drivers were represented during arguments by Jeremy D. Hollingshead of The Law Office of Carl M. Ward in Washington, and the state was represented by Deputy State Solicitor Jeremiah J. Morgan of the attorney general's office in Jefferson City.

In July 2008, House Bill No. 1715 became effective, repealing and reenacting section 577.023, RSMo, which provides, in part, for enhanced penalties for “aggravated,” “chronic,” “persistent” and “prior” intoxication-related traffic offenders. Subsequently, Michele Schaefer, Cindy Brandt and Dale Price each were arrested and charged with driving while intoxicated. In May 2009, these drivers filed a consolidated petition asking the court to declare HB 1715 unconstitutional. In July 2009, the legislature again repealed and reenacted section 577.023 with nearly identical provisions as those contained in HB 1715. In June 2010, the trial court denied the drivers’ motion for summary judgment, entered summary judgment in favor of the state and dismissed the drivers’ petition with prejudice. The drivers appeal.

The drivers argue the trial court erroneously declared and applied the law by dismissing their petition and granting summary judgment in favor of the state. They contend that adversity exists between the parties, that they have a present and personal stake in the resolution of their claims, and that the doctrine of abatement (here, where the purpose of two proceedings is the same) does not preclude this action. They assert their claims are not moot because, although the statute they challenged was repealed and reenacted, if convicted, they still will be sentenced under that statute. They also argue that allowing criminal defendants to challenge a procedurally unconstitutional statute through declaratory relief promotes judicial economy. The drivers contend the trial court erroneously declared and applied the law by denying their motion for summary judgment. They assert that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law because HB 1715 and portions of section 577.023 were passed in violation of the Missouri Constitution.

The state responds that the drivers’ claims are moot because declaratory judgment would have no practical effect on any existing controversy. It argues that two of the drivers already pleaded guilty and that the provisions of HB 1715 never will be enforced against any of the drivers. The state argues the trial court did not abuse its wide discretion in denying declaratory judgment because a remedy exists in the drivers’ criminal cases for their claims. Finally, the state contends the trial court never ruled on the drivers’ constitutional claims and, as such, this Court should not address these claims.

SC91302
Missouri Association of Nurse Anesthetists, Inc., Glenn Kunkel, M.D., and Kevin Snyders, CRNA v. State Board of Registration for the Healing Arts
Cole County
Whether an administrative board’s statements constitute an administrative rule
Listen to the oral argument:

The nurse anesthetists and Kunkel were represented during arguments Thomas W. Rynard of Blitz, Bardgett & Deutsch L.C. in Jefferson City, and the board was represented by Patricia J. Churchill of the attorney general's office in Kansas City.

In September 2007, the Missouri State Medical Association wrote to the Missouri State Board of Registration for the Healing Arts, stating it was the association’s position that the injection or placement of therapeutic agents into a human body under ultrasonic, fluoroscopic, computed tomography or magnetic resonance imaging guidance constitutes the practice of medicine and should be restricted to licensed physicians. The next month, Dr. Glenn Kunkel wrote a letter to the board rebutting the association’s position. In January 2008, the board adopted a motion that “it is beyond the scope of practice for an advanced practice nurse to inject therapeutic agents under fluoroscopic control.” In the February 2008 issue of the association’s monthly newsletter, an association article stated it was the board’s opinion that “advance practice nurses currently do not have the appropriate training, skill or experience to perform these injections.” The Missouri Association of Nurse Anesthetists, along with Kunkel and Kevin Snyders – a certified registered nurse anesthetist – sought declaratory and injunctive relief, challenging the validity of the board’s position. The board sought summary judgment, arguing its statements did not constitute an administrative rule. The trial court granted summary judgment in favor of the board. The nurse anesthetists and Kunkel appeal.

The nurse anesthetists and Kunkel argue the trial court erred in granting summary judgment in the board’s favor. They contend that the board’s statements in its motion and attributed to the board in the association’s newsletter constituted a rule and that the statements, therefore, are subject to rulemaking requirements. They assert the trial court erred in granting summary judgment because the board was without jurisdiction or authority to define advanced practice nurses’ scope of practice. They argue the trial court erred in granting summary judgment because the nurse anesthetists and Kunkel had standing to maintain an action because the board’s statements directly and immediately had an adverse effect on them and because they do not have an adequate remedy to challenge the board’s statements through a disciplinary hearing.

The board responds that the trial court did not err because the board’s statements and the statements attributed to it by the association’s article did not constitute promulgation of a rule by the board, and, therefore, were not subject to rulemaking requirements. The board argues it has jurisdiction to address the duties of physicians regarding delegations to advanced practice nurses. Finally, the board contends declaratory relief is improper because its opinion does not have any direct impact on the nurse anesthetists and because Kunkel, as a medical doctor, has a full range of administrative remedies to pursue if the board takes any disciplinary action against him.

The American Association of Nurse Anesthetists argues, as a friend of the Court, that the trial court erred in granting summary judgment in the board’s favor. It contends the board’s statements constituted a rule subject to rulemaking requirements.

The Missouri Chamber of Commerce & Industry Inc. argues, as a friend of the Court, that the trial court erred in granting summary judgment in the board’s favor. It contends the board’s statements constituted a rule.

SC91322
State ex rel. Praxair, Inc. AG Processing, Inc. a Cooperative, and Sedalia Industrial Energy Users' Association, Office of Public Counsel v. Missouri Public Service Commission, Great Plains Energy, KCP&L, KCP&L Greater Missouri Operations Co.
Cole County
Challenge to public service commission’s order allowing for merger of energy companies
Listen to the oral argument:

The office of public counsel was represented during arguments by Public Counsel Lewis R. Mills Jr. of the office of public counsel in Jefferson City; the industrial appellants were represented by David L. Woodsmall of Finnegan, Conrad & Peterson L.C. in Jefferson City; the commission was represented by Jennifer Heintz of the Missouri Public Service Commission in Jefferson City, and the energy companies were represented by Karl Zobrist of SNR Denton US LLP in Kansas City.

In April 2007, Great Plaints Energy, Kansas City Power & Light Co. and Aquila Inc. (collectively, the energy companies) filed a joint application with the public service commission requesting authority allowing Great Plains to acquire the stock of Aquila and to operate Aquila as a separate wholly owned subsidiary. The commission began its evidentiary hearing in December 2007. Later that month, the office of public counsel filed a motion to dismiss, alleging impropriety by the commission. The commission denied the motion. In April 2008, during the commission’s evidentiary hearing, the presiding officer ruled to limit the scope of the proceedings and exclude any evidence of the energy companies’ gift and gratuity policies. In July 2008, the commission issued its report and order granting the energy companies’ requests. Subsequently, AG Processing Inc., Praxair Inc., the Sedalia Industrial Energy Users’ Association (collectively, the industrial appellants) and the office of public counsel sought a rehearing, which the commission denied. The industrial appellants and the office of public counsel then sought review in the Cole County circuit court. The circuit court affirmed the commission’s decision. The industrial appellants and the office of public counsel appeal.

Appellants’ arguments

The office of public counsel argues the commission erred in not granting its motion to dismiss. It contends a majority of the sitting commissioners should have disqualified themselves because they engaged in pre-filing meetings with the energy companies and created a strong appearance of impropriety.

The industrial appellants argue the commission erred in limiting the scope of the proceedings because it deprived them of their right to judicial review. They contend such a limitation prevented the circuit court from exercising its constitutional responsibility to determine whether the commission’s order was against the overwhelming weight of the evidence. Further, they assert that the commission did not have the statutory authority to reject an offer of proof and that precluding evidence violated the appropriate standard of determining whether a merger would be detrimental to the public interest.

Respondents’ arguments

Responding to the office of public counsel, the commission argues the its denial of the office of public counsel’s motion to dismiss must be affirmed because its denial is not a final order subject to judicial review. The commission contends its order approving the merger must be affirmed because it is lawful and reasonable and because its order was a proper exercise of statutory authority.

Responding to the industrial appellants, the commission argues its report and order should be affirmed. It contends the industrial appellants raise arguments on appeal not raised in their application for rehearing filed before the commission, in violation of judicial review procedures. The commission asserts it did not deprive the industrial appellants of their constitutional right to judicial review because the industrial appellants had no right to make an offer of proof and because the commission may exclude evidence that is wholly irrelevant. The commission responds that it possessed the statutory authority to limit the scope of the proceedings and that, by not accepting an offer of proof based on matters outside its authority, the commission followed the appropriate standard.

The energy companies respond that the commission properly rejected an offer of proof containing wholly irrelevant evidence and that the commission built a record of competent, relevant evidence; the commission avoided repetition and undue delay; and the industrial appellants are accountable for any defect in the record. They argue the commission possessed the statutory authority to limit the scope of the proceedings. They contend the exclusion of wholly irrelevant evidence is consistent with the commission’s decision that the merger was not detrimental to the public interest. Finally, they assert that the denial of the office of public counsel’s motion to dismiss was appropriate and that the commissioners violated no standard of conduct by meeting with representatives of the energy companies before the joint application was filed.