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Case Summary for September 7, 2011


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 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

9:30 a.m. Wednesday, Sept. 7, 2011


Michael Ocello, et al. v. Chris Koster, in his official capacity as Missouri Attorney General
Cole County
Constitutional challenges to legislation restricting adult businesses
Listen to the oral argument: SC91563.mp3
The adult businesses were represented during arguments by J. Michael Murray of Berkman, Gordon, Murray & DeVan in Cleveland, Ohio, and the state was represented by Ronald R. Holliger, general counsel for the attorney general's office in Jefferson City, and Scott D. Bergthold of the Law Office of Scott D. Bergdhold PLLC in Chattanooga, Tenn. Judge William W. Francis, a judge of the Missouri Court of Appeals, Southern District, sat in this case by special designation to fill the vacancy on the Court.

In 2010, the legislature passed Senate Bill Nos. 586 and 671, imposing various restrictions upon adult businesses, including adult cabarets and adult bookstores. Specifically, the legislation: mandates that adult businesses close between midnight and 6 a.m.; prohibits the sale, consumption, use or service of alcoholic beverages in adult businesses; bans full nudity in a sexually oriented business; restricts those appearing semi-nude from touching a patron; and places various requirements on the businesses’ physical space. Shortly following the legislation’s enactment in May 2010, but before it was scheduled to become effective in August 2010, the Missouri Association of Club Executives – a trade association representing adult businesses throughout the state – as well as taxpayers, the owners of certain adult cabarets and bookstores, entertainers who perform in those cabarets, and a former member of the Missouri House of Representatives filed a petition in the circuit court challenging the procedure taken in adopting the legislation and the constitutional validity of the resulting statute, section 573.531, RSMo. The circuit court overruled their motion for a temporary restraining order in August 2010, and the law took effect as scheduled. In November 2010, the circuit court partially granted the state’s motion for summary judgment, finding the legislature’s procedures in adopting the legislation were valid. In January 2011, the circuit court ruled in favor of the state regarding the resulting statutes’ constitutional validity. The businesses appeal.

The businesses argue the circuit court erred in holding the legislature adopted the act validly. They contend the joint committee on legislative research did not hold a fiscal note hearing, despite a request for such a hearing, in violation of section 23.140, RSMo, and article III, section 35 of the Missouri Constitution. The businesses assert the circuit court erred in granting summary judgment to the state. They argue that the legislation here should be subject to the higher standards of strict-scrutiny review rather than intermediate-scrutiny review under the First Amendment. The businesses contend that under strict-scrutiny review, the legislation constitutes an unconstitutional content-based restriction on free speech because it restricts expression regardless of the presence of adverse secondary effects, does not serve a compelling governmental interest and is not the least restrictive means of restricting protected expression. The businesses assert the circuit court should not have determined, based solely on the pleadings, whether the legislation can survive even intermediate scrutiny under the First Amendment. They argue they plainly stated a First Amendment claim, established that the record upon which the legislation was adopted and justified was substandard, and produced substantial evidence disproving the secondary effects rationale advanced in support of the legislation. They further contend that restrictions on adult expression must substantially reduce secondary effects without materially diminishing the quality and availability of adult speech and that the restrictions here have, and will continue to have, a devastating impact on adult businesses.

The state responds that the fiscal note challenge cannot succeed on the merits. It argues that article III, section 35 only creates the joint committee on legislative research; the Missouri Constitution does not require that a bill have a fiscal note, let alone that the committee on legislative research hold a hearing before the legislature can pass the bill. It contends that section 23.140, RSMo – which creates a fiscal note requirement and provides for a hearing on a bill’s fiscal note upon request – does not prohibit passage of a bill if a hearing is not held. The state asserts that, based on governing United States Supreme Court precedent, the statute here must survive intermediate – not strict – scrutiny under the First Amendment. It responds that the statute’s restrictions clearly are directed only at the content-neutral interest in preventing negative secondary effects. It argues that any argument for strict scrutiny based on the comments of one legislator fails under governing law. The state contends that the overwhelming weight of legal authority shows that the statute satisfies intermediate scrutiny as a matter of law and that judgment on the pleadings is appropriate. It asserts that a litany of authorities establish that the challenged regulations serve the substantial government interest in preventing secondary effects and that the legislature’s own record and specific findings as to secondary effects far exceed any deferential standard of whether there was any evidence reasonably believed to be relevant. The state asserts that the businesses fail in their burden of casting direct doubt on all of the state’s evidence of adverse secondary effects and, in fact, fail to challenge large portions of the state’s evidence of such effects. The state further responds that any decreased revenues the businesses may experience do not establish a First Amendment violation.

SC91563_Ocello_brief.pdf SC91563_State_of_Missouri_brief.pdf SC91563_Ocello_reply_brief.pdf

In the Interest of: B.H.
Jackson County
Challenge to termination of parental rights
Listen to the oral argument: SC91584.mp3
The mother was represented during arguments by Michael E. Crowley of Warden Grier LLP in Kansas City, and the juvenile officer was represented by Lori L. Stipp of the Jackson County juvenile office in Kansas City. Judge William W. Francis, a judge of the Missouri Court of Appeals, Southern District, sat in this case by special designation to fill the vacancy on the Court.

In 2009, a child was removed from his mother’s home and placed in the care of the state’s children’s division. The division filed a petition alleging that the child was without proper support or care and that the mother had been arrested and incarcerated for soliciting prostitution. Further, it alleged, the mother was a registered sex offender and admitted to prostituting herself regularly while at home with the child. In January 2011, the trial court terminated the mother’s parental rights. She appeals.

The mother argues the trial court erred in terminating her parental rights. She contends the trial court violated the Due Process Clause of the United States Constitution by terminating her rights based on a preponderance of the evidence and not based on the higher burden of proof requiring clear and convincing evidence. She asserts the trial court erred in failing to identity the burden of proof it applied to other factual findings. The mother further argues the trial court erred in considering her past behavior because past behavior can support termination only if the trial court explicitly considers whether that past behavior demonstrates a risk of future harm.

The division responds that the trial court did not err in terminating the mother’s parental rights. It argues the trial court based the termination on clear, cogent and convincing evidence, not on a preponderance of the evidence. It contends that while the trial court erred in failing to identity the burden of proof applied to other factual findings, that error was not fatal to the proceedings. It asserts the trial court properly considered the mother’s past conduct in making its decisions as to whether risks of future harm existed.

SC91584_Mother_brief.pdf SC91584_Juvenile_Officer_brief.pdf SC91584_Mother_reply_brief.pdf

V.W. v. R.W.
St. Louis County

This case was removed from the oral argument docket Sept. 2 because the parties settled the case.

In re: Tarak A. Devkota
Jackson County
Attorney discipline
Listen to the oral argument: SC91579.mp3
The chief disciplinary counsel was represented during arguments by Charles W. Gotschall of The Law Offices of Charles W. Gotschall in Kansas City, and Devkota was represented by Robert G. Russell of Kempton & Russell in Sedalia. Judge William W. Francis, a judge of the Missouri Court of Appeals, Southern District, sat in this case by special designation to fill the vacancy on the Court.

In January 2010, the chief disciplinary counsel received notice that Kansas City attorney Tarak A. Devkota’s client trust account was overdrawn. An investigation revealed Devkota had commingled his own funds with client funds, used the funds for his own personal finances and failed to keep sufficient funds in the account. In November 2010, a disciplinary hearing panel recommended that Devkota’s license be suspended, that the suspension be stayed and that he be placed on probation. This Court rejected the recommendation. The chief disciplinary counsel asks this Court to discipline Devkota’s law license.

The chief disciplinary counsel argues this Court should suspend Devkota’s law license, stay the suspension and place Devkota on probation for three years. He contends probation is reasonable under Rule 5.225. The chief disciplinary counsel asserts Devkota violated Rules 4-1.15, 4-8.1 and 4-8.4 by commingling client and personal funds, by making false statements to an investigator with the chief disciplinary counsel’s office, and by engaging in dishonest prejudicial conduct.

Devkota agrees with the chief disciplinary counsel’s recommendation as to discipline.

SC91579_Chief_Disciplinary_Counsel_brief.pdf SC91579_Devkota_brief.pdf

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