Case Summary for September 14, 2011

Your Missouri Courts - Supreme Court

Home

Case Summary for September 14, 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, September 14, 2011

____________________________________________________________________________________________________

SC91640
St. Louis Association of Realtors v. City of Ferguson
St. Louis County
Association’s standing (legal ability) to challenge a municipal ordinance
Listen to the oral argument:

The association was represented during arguments by Stephen C. Murphy of Devereux Murphy LLC in St. Louis, and the city was represented by Stephanie E. Karr of Curtis, Heinz, Garrett & O'Keefe PC in St. Louis. Judge Brian C. Wimes, a circuit judge from the 16th Judicial Circuit (Jackson County), sat in this case by special designation to fill the vacancy on the Court.

Ferguson ordinance No. 2006-3257 amended the city’s municipal code by, in part, imposing certain municipal licensure requirements on owners of residential property in Ferguson who rent, lease or permit occupancy of their property in whole or in part. The ordinance contained a severability clause declaring the city council’s intent that each and every part, section and subsection of the ordinance shall be severable from each and every other part and that, if any part of the ordinance were found to be unlawful or unconstitutional, then the remaining parts, sections and subsections would remain in full force and effect. The St. Louis Association of Realtors, a voluntary trade association organized as a not-for-profit corporation, filed suit challenging the validity of the ordinances on statutory and constitutional grounds. The case was tried before a judge in December 2008. At trial, the association’s government affairs director identified three members of the association who own residential rental property and testified that it had other members that owned rental property there as well. Three witnesses who identified themselves as members of the association and owners of residential rental property in the city also testified. In January 2010, the trial court dismissed the case for lack of standing (legal ability to file suit) and, therefore, did not rule on the merits of the case. The association appeals.

The association argues the trial court erred in finding that it lacked standing. It contends that it met all the requirements of associational standing – its members otherwise would have standing to sue in their own right, the interests it seeks to protect are germane to its purpose, and neither the claim asserted nor the relief requested requires individual members to participate in the suit – and that its right to bring a declaratory judgment action against a municipal ordinance previously has been upheld. The association asserts that the court misreads the wording and purpose of representational standing cases and that it has representational standing even if only a few of its members own property in Ferguson. It agues it presented evidence that the ordinance would have an indirect impact on its members and that the interests its suit seeks to protect are germane to its purpose as stated in its bylaws and vision statement. The association further contends it need not show standing on taxpayer grounds, asserting the Hancock Amendment challenge to the ordinance was abandoned when a separate taxpayer plaintiff dismissed its claim.

Ferguson responds that the trial court correctly dismissed the association’s petition. It argues the association lacked capacity and standing to sue because it lacks associational standing. It contends there is nothing in the association’s governing documents – which the evidence does not show includes the “vision statement” – that permits the association to advocate in favor of the property rights of its members. Ferguson asserts there is no controversy between the parties because the association is not a taxpayer, resident or licensee of the city, does not own property in the city, and is not regulated by the city. Ferguson responds that the association fails all three factors necessary to establish associational standing. It argues the association’s members lack standing in their own right because the ordinance being challenged does not affect a legally protectable interest of the members in their business as real estate agents and brokers. It contends the suit is not germane to the association’s purpose, noting the association is made up not of residential property owners or landlords but rather of those engaging in the business activities of real estate agents and brokers. Ferguson asserts that the Hancock Amendment claim has not been dismissed from the petition and, therefore, that the suit requires participation of a taxpayer who is subject to the challenged taxes or fees levied by the city. It further responds that, even under the most basic analysis, the association lacks standing because the subject of the litigation is not connected to the common interests of the association’s members: real estate transactions. Ferguson argues that, absent standing, the trial court lacks jurisdiction over the matter and cannot simply defer to the “business judgment” of the association.

The Missouri Municipal League argues, as a friend of the Court, that dismissal was proper. It contends that the association failed to connect its core interest as an organization of real estate agents and brokers to the ordinance regulating landlords. The league asserts that the association lacks standing under the three-part test: the association’s members have no standing to sue in their own right because they have no property interest or other right at stake in an ordinance that applies only to landlords; there is no connection between the association’s objectives and the purpose of the ordinance; and the association is not a taxpayer in Ferguson that could bring a Hancock Amendment claim.

The Missouri Society of Association Executives, the Missouri School Board Association and the Missouri Association of Realtors argue, as friends of the Court, that the trial court’s dismissal of this case was wrong under the three-part test for associational standing. They contend this test was based on federal constitutional principles and not Missouri law. They assert that the Court should clarify that this test does not displace normal standing rules and that courts should focus instead on the traditional analysis of whether the party will be “directly and adversely affected by” the outcome of the litigation. The state associations assert that because Rule 52.10 allows unincorporated associations to bring suit without analyzing their purpose, the same rule should apply to incorporated associations. They argue that the state’s declaratory judgment act permits “any person” – including an association – to have a court determine the construction or validity of an ordinance so long as its rights are affected by the ordinance. The state associations argue that, even under the three-part test, the trial court should not have dismissed the suit. They contend that whether litigation is germane to the organizational purpose should not be based on some magic language but rather an “undemanding” standard comparable to a business judgment rule, creating a presumption of germaneness that should be rebutted only with evidence that the suit was not authorized by the association’s governing documents or was not authorized properly through the association’s internal processes. The state associations assert that, as a not-for-profit corporation, the local association’s action legally could not be challenged on the ground that it lacked authority except by directors, members or the attorney general and that the courts should not second-guess an association’s decision to take action to protect its members’ interests.

SC91738
James O. Grace, et al., individually and on behalf of others similarly situated v. St. Louis County, IESI MO Corporation, Veolia ES Solid Waste Midwest, LLC, and Allied Services, LLC
St. Louis County

This case was retransferred Aug. 29 to the Missouri Court of Appeals for reconsideration in light of Weber v. St. Louis County, 342 S.W.3d 318 (Mo. banc 2011).

SC91498
Robert J. Simpson v. Rowena A. Simpson
St. Louis County
Continuance of maintenance following remarriage
Listen to the oral argument:
The husband was represented during arguments by Edward D. Robertson Jr. of Bartimus, Frickleton, Robertson & Gorny PC in Jefferson City, and the wife was represented by Gerard T. Carmody of Carmody MacDonald PC in St. Louis. Judge Brian C. Wimes, a circuit judge from the 16th Judicial Circuit (Jackson County), sat in this case by special designation to fill the vacancy on the Court. Judge Rachel Bringer, the presiding judge of the 10th Judicial Circuit (Marion, Monroe and Ralls counties), sat in this case by special designation in place of Judge William Ray Price Jr.

The marriage between the husband and the wife was dissolved in December 2005. The trial court incorporated into the dissolution decree the parties separation agreement, which provided that the husband agreed to pay the wife nonmodifiable maintenance in the sum of $12,000 per month for 15 years, unless one party died before then. At the hearing regarding the separation agreement, the husband testified that his obligation to make payments would not change if his wife remarried. The wife subsequently remarried. The husband moved to terminate maintenance, and the wife moved to dismiss. The trial court overruled the motion to terminate maintenance and sustained the motion to dismiss. The husband appeals.

The husband argues the trial court erred in overruling his motion to terminate maintenance and in sustaining the wife’s motion to dismiss. He contends that section 452.370.3, RSMo 2000, creates a statutory presumption that maintenance terminates upon remarriage unless the separation agreement expressly states otherwise. He asserts that here, neither the separation agreement nor the dissolution decree stated expressly any agreement between the parties that his obligation to pay maintenance would continue if his wife remarried. The husband argues that his transcribed oral testimony is not “otherwise agreed in writing” and is not sufficient to overcome the written separation agreement. Because his testimony is not a written agreement, he contends, section 452.270.3 requires the court not to give any weight to his testimony.

The wife responds that the trial court correctly determined that the husband’s maintenance obligation did not terminate upon her remarriage. She argues his sworn testimony in court and transcribed as part of the court record satisfies the statutory requirement of a written agreement that rebuts the statutory presumption that maintenance ends when the recipient remarries. She contends the husband’s sworn declaration is binding on him as an enforceable stipulation and a judicial admission, also rebutting the statutory presumption that maintenance ends when the recipient remarries. As such, the wife asserts that the husband now is estopped from disavowing his prior express admission that his maintenance obligation continues for 15 years regardless of her remarriage.

SC91656
In re: William Stanley Daniel
St. Louis
Attorney discipline
Listen to the oral argument:
The chief disciplinary counsel was represented during arguments by Melody Nashan of the chief disciplinary counsel's office in Jefferson City, and Daniel, of Webster Groves, represented himself during arguments. Judge Brian C. Wimes, a circuit judge from the 16th Judicial Circuit (Jackson County), sat in this case by special designation to fill the vacancy on the Court. Judge Patricia Breckenridge did not participate in arguments and was not replaced by a special judge.

Attorney William Stanley Daniel failed to file Missouri tax returns for 2003 and 2004. The department of revenue sent various sets of notices, one for each tax year, to Daniel about his tax deficiency to the Belleville, Illinois, address that he used on his correspondence to disciplinary authorities as recently as August 2011. The department sent notices via regular mail in September 2006, April 2007 and August 2008. None of these notices was returned to the department. The department also sent sets of notices to Daniel via certified mail in January and May 2007. Daniel did not claim these notices, which were returned to the department. All three sets of notices provided information about how to contact the department with questions. In September 2008, the department sent to the clerk of the Supreme Court of Missouri a list of Missouri attorneys who were delinquent as to their Missouri state taxes; the list included Daniel. The bar enrollment director sent a notice via regular mail to Daniel at an address in St. Louis that he had registered with The Missouri Bar, stipulating in 2008 that he was living at that address. This notice, which was not returned, gave Daniel 30 days to resolve the matter with the department of revenue. Daniel did not resolve the tax situation and was suspended from the practice of law effective in February 2009. In January 2010, Daniel appeared in the St. Louis County circuit court and argued a motion to dismiss. Because Daniel had been suspended for failing to pay taxes, the judge reported Daniel’s practice of law to the chief disciplinary counsel’s office.

The chief disciplinary counsel wrote to Daniel, who responded in February 2010 that he had not received any written notification that his law license had been suspended and that he never had been provided notice that he owed back taxes for 2003 and 2004. The chief disciplinary counsel instituted disciplinary proceedings against Daniel in July 2010 for practicing law while his license was suspended in violation of Rule 4-5.5. A September 2010 disciplinary hearing was continued to give Daniel time to satisfy his tax liability to the department and to obtain readmission to the Bar pursuant to Rule 5.245. He did not resolve his tax liability, and so a hearing was held in November 2010. At that hearing, Daniel admitted he had appeared in court in January 2010 and that he had filed two additional motions to dismiss in St. Louis County circuit court in July 2010. Daniel testified that he did not receive the notices from the department, that he did not receive the October 2008 notice from the Court that his license would be suspended for failure to pay taxes and that he did not know that his license had been suspended until he received the correspondence from the chief disciplinary counsel in February 2010 regarding his unauthorized practice of law. He admitted that he failed to file tax returns and that he has paid no Missouri income taxes for 2003 and 2004 but that he does not know how much he owes because he has not been able to afford to pay his accountant to prepare his 2003 and 2004 tax returns. Although the disciplinary hearing panel found that Daniel had received the October 2008 notice from the Court, he was not notified that his license would be suspended in February 2009 or that it would be suspended without a hearing. As such, the panel concluded, the Court’s order suspending Daniel was null and void because it had been entered in violation of Daniel’s due process rights. The chief disciplinary counsel rejected the panel’s recommendation, noting that he has sent correspondence to Daniel on prior occasions via certified mail that was returned as unclaimed to the same address at which Daniel has admitted receiving regular mail. The chief disciplinary counsel asks this Court to discipline Daniel’s law license.

The chief disciplinary counsel argues this Court should suspend Daniel’s law license with no leave to apply for reinstatement for one year after he files with the Court a certificate of tax compliance issued by the department of revenue. He contends Daniel knowingly violated Rule 4-5.5 by engaging in the practice of law after his license to practice had been suspended. The chief disciplinary counsel asserts that Daniel received all the process he was due because he was sent notice regarding the imminent suspension of his license to practice law, that notice was not returned and, therefore, the Court had no reason to believe that Daniel had not received that notice.

Daniel responds that he should not be disciplined. He argues that this Court must base its decision on a de novo review of the record before the disciplinary hearing panel without hearing evidence anew. He contends this Court should not consider certain pages in the chief disciplinary counsel’s appendix that he asserts were not introduced into evidence before the disciplinary hearing panel and that this Court permitted to be supplemented into the record before he had a chance to file a timely objection. Daniel responds that the department of revenue, chief disciplinary counsel and clerks of this Court violated his constitutional due process rights. He argues that the chief disciplinary counsel failed to introduce a number of documents into evidence at the disciplinary panel hearing that have been supplemented to the record before this Court. Daniel contends he was not allowed to present mitigating evidence to the hearing panel, testify at length in his own defense or make a closing argument to the hearing panel. He asserts that no one attempted to send him notice via facsimile or electronic mail. Daniel further responds that the double suspension – first for failing to pay taxes and then for practicing law while his license ostensibly was suspended – violates due process. He argues the record fails to include clear and convincing evidence of unauthorized practice of law.