Case Summary for January 7, 2009

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Case Summary for January 7, 2009

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 a.m. Wednesday, January 7, 2009

____________________________________________________________________

SC89529
State ex rel. Ashby Road Partners, LLC, et al. v. State Tax Commission of Missouri, Philip Muehlheausler, Assessor of St. Louis County
Cole and St. Louis counties
Discrimination of commercial property value
Listen to the oral argument:

The property owners were represented during argument by Byron E. Francis of Armstrong Teasdale LLP in St. Louis, the state tax commission was represented by Mark E. Long of the attorney general's office in Jefferson City, and Muehlheausler was represented by St. Louis County Counselor Paula J. Lemerman of Clayton.

Commercial property owners in St. Louis County appealed the county assessor's assessment of their property to the state tax commission. They did not contest the market values set by the assessor, but claimed discrimination in 2003 and 2004 in that their property was assessed at 32 percent of true market value, while other similarly situated properties were assessed at a lower percentage of true market value. In June 2006, a hearing officer required the property owners to present evidence of the properties' market value. The property owners objected, arguing that the market value of their properties was not at issue, but that their tax appeal was based solely on discrimination. The objection was overruled and the property owners sought the full commission's review, arguing Missouri law prohibited the use of valuation evidence to show a higher value of their properties than the assessor assigned. The commission affirmed the hearing officer's order. The property owners sought a writ of prohibition in Cole County Circuit Court. The circuit court denied the writ. The property owners appeal.

The property owners argue section 138.060, RSMo, prohibits the assessor from advocating a higher value for their property than the "true value" assigned and agreed to and precludes him from requiring them to produce evidence of the properties' value. They contend the issue of the market value is irrelevant to their tax appeals and inadmissible in hearings before the commission. The property owners allege the commission abused its discretion in ordering them to produce burdensome, expensive discovery of the market value of their properties and prove this irrelevant issue at trial. They further argue they had no adequate remedy by appeal.

The state responds that the property owners were not victims of discrimination. It argues the commission has personal and subject matter jurisdiction, has the power to act by issuing the order and did not abuse its discretion and, therefore, a writ should not be issued. The state further responds the property owners have the right to appeal and there is no irreparable harm because once the state tax commission rules, the property owners may appeal an adverse decision to the circuit court.

Philip Muehlheausler, the appointed assessor for St. Louis County, responds the proof of market value to show that under-assessment of the property owners' property did not occur and would be required in order for the property owners to prevail on their claim of discriminatory assessment. Muehlheausler asserts section 138.060 does not preclude the assessor from introducing evidence that the property owners' property was assessed proportionately to other properties throughout the county.

SC89623
In re: Brian Zink
St. Charles County
Attorney discipline
Listen to the oral argument:

The chief disciplinary counsel's office was represented during argument by Chief Disciplinary Counsel Allen Pratzel of Jefferson City, and Zink was represented by Paul J. D'Agrosa of the Law Offices of Wolff & D'Agrosa in Clayton.

Brian Zink was a Missouri-licensed attorney in Lake St. Louis when he took on a client who was arrested and charged with three felony counts of forgery in June 2006. Zink told the prosecutor that his client's godfather was a former football player. The prosecutor did not believe him. Zink thought his client's felony charges would be reduced if he gave the prosecutor sports memorabilia signed by the football player. In a conversation taped by the Federal Bureau of Investigation, Zink told his client he could get the felony charges reduced if his client produced a baseball signed by the football player. The client gave Zink a baseball, a football and a rookie card all purportedly signed by the football player. Zink told the prosecutor he obtained the sports memorabilia, but did not give it to him. In August 2006, Zink made false statements to the FBI in the course of its investigation of the matter. He was also interviewed by an assistant United States attorney, in which he again made false and misleading statements concerning the role of the sports memorabilia. In June 2007, Zink entered into an agreement for pretrial diversion with the United States providing that it would defer the prosecution of Zink for making false statements to a federal law enforcement officer for one year, if Zink agreed to not practice law for one year and cooperated with this Court and the Chief Disciplinary Counsel. In October 2007, the office of chief disciplinary counsel filed an information against Zink. The disciplinary hearing panel, in June 2008, concluded Zink failed to consult with his client about the limitation on Zink's conduct. The panel also found Zink engaged in misconduct involving dishonesty, fraud and deceit by his false statements to the FBI and the United States attorney's office. It recommended Zink be retroactively suspended from the practice of law for 12 months, commencing in June 2007 and ending in June 2008, the time during which Zink voluntarily abstained from the practice of law pursuant to his pretrial diversion agreement with the United States attorney's office. The disciplinary counsel seeks to discipline Zink's license.

The chief disciplinary counsel argues Zink should be disciplined because he made untruthful statements of material fact to the FBI and the United States attorney's office in conjunction with a pending federal criminal investigation. It contends Zink indicated to his client that he could obtain a reduction in felony charges in exchange for sports memorabilia and he attempted to obtain a reduction in felony charges in exchange for sports memorabilia. The disciplinary counsel asserts Zink failed to inform his client of the limitations on his conduct when he knew that the client expected assistance not permitted by the rules of professional misconduct. It further argues this Court should disregard the panel's recommendation because it invades the province of this Court and does not properly address the egregiousness of Zink's conduct. The disciplinary counsel asserts Zink's license should be suspended because that is the appropriate action when a lawyer knowingly engages in conduct involving dishonesty, fraud, misrepresentation or deceit.

Zink responds the disciplinary counsel failed to prove by a preponderance of the evidence that he attempted to obtain a reduction in felony charges as a quid pro quo (this for that, exchange) for sports memorabilia. He contends his false statements to the FBI and the United States attorney's office were not made in the course of representing a client and that admitting his statements to the hearing panel were prejudicial to the administration of justice. Zink asserts this Court should not disregard the panel's recommendation because it comports with Rule 5.16, accounts for mitigating factors in recommending a sanction, and the panel's decision is consistent with the authority delegated to it by this Court. Zink further responds this Court should follow the panel's recommendation because his conduct does not rise to the level of misconduct to warrant disbarment and the panel, after a full hearing, recommended that his sanction be a one year suspension, consistent with his self-imposed one year abstention from the practice of law.

SC89168
State of Missouri v. Kevin Johnson
St. Louis County
Death penalty conviction
Listen to the oral argument:

Johnson was represented during argument by Deborah B. Wafer of the public defender's office in St. Louis, and the state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.

In July 2005, the Kirkwood police were looking for Kevin Johnson for violating his probation on a misdemeanor conviction. While the police were in Johnson's house, Johnson's brother suffered a seizure. Johnson was next door at the time. The officers called an ambulance. Johnson's brother was taken to a hospital where he was pronounced dead. Johnson blamed the police officers for his brother's death, and Johnson shot and killed one of the officers that same day. He was charged and convicted of first degree murder. In October 2007, after finding Johnson had time to cool down and "deliberate" between his brother's death and shooting the officer, the trial court sentenced Johnson to death. Johnson appeals.

Johnson argues the trial court violated his rights to equal protection, due process, reliable and proportionate sentencing, confrontation, and a fair and impartial jury, and that he had a right to a new trial. He contends that one of the juror's did not disclose she knew one of the state's witnesses, that a juror who said she opposed the death penalty should not have been stricken for cause as the state requested and that a juror who was black was improperly removed from the potential juror pool in violation of Batson v. Kentucky, 476 U.S.79 (1986). Johnson asserts a judgment of acquittal was required because there was insufficient evidence of deliberation in a conscious decision to shoot the officer. He argues the jury instructions for second-degree murder without sudden passion and involuntary manslaughter should have been provided to the jury and that the sentence is disproportionate. Johnson contends his statements made during a police interrogation should not have been admitted because the interrogator advised Johnson of his constitutional rights, but did not ask whether Johnson wanted to waive his rights. He asserts the letter written by the officer's son and read to the jury by the mother should not have been admitted. Johnson further argues the trial court erred in giving the jury instruction No. 12 because it contained the "depravity of mind" statutory aggravating circumstance, which is unconstitutionally vague. He asserts it was improper to instruct the jury that the mitigators must outweigh the aggravators when the state has the burden of proof and that the statutory aggravators were not pleaded.

The state responds the juror did not realize she knew the state's witness during voir dire (questioning the potential jurors) who was married to her former co-worker, and the trial court did not abuse its discretion in finding the juror's testimony credible. It contends the juror who was black was struck for valid, race-neutral reasons and the trial court did not err in overruling Johnson's Batson challenge. The state asserts the trial court properly struck a juror at the state's request because she demonstrated her views on the death penalty would impair her ability to serve on the jury. It argues the trial court properly instructed the jury and the prosecutor's argument properly set out for the jury the evidence and inferences supporting a finding that Johnson deliberated between his brother's death and shooting the police officer. The state further responds the trial court did not err in refusing Johnson's proffered instructions on murder in the second degree without sudden passion and voluntary manslaughter because the evidence did not support the requested instructions. It asserts Johnson would not be prejudiced in any event because the jury was instructed on murder in the second degree without the sudden passion language, but found him guilty of the greater offense of murder in the first degree. It argues the death penalty was not disproportionately applied to his case because application of the statutory factors and a comparison of this case with others in which the death penalty was imposed illustrates the sentence was not excessive or disproportionate. The state asserts Johnson waived plain error review by not challenging the admission of the statements he made in the police interview and Johnson cannot show a manifest injustice because the evidence was not outcome determinative. The state responds the victim impact testimony written by the officer's son was properly admitted and admission of such evidence is not prejudicial to Johnson. It contends Johnson's claims of instructional error have previously been rejected by this Court. It asserts the trial court did not err in giving the jury instruction No. 12 because this Court has rejected the argument that the "depravity of mind" aggravators is unconstitutionally vague and because the jury also found two other statutory aggravating circumstances whose validity is not being questioned. The state contends this Court has previously rejected the claim that the state bears the burden of proving that the mitigating circumstances must be insufficient to outweigh the aggravating circumstances and has found the instructions the trial court used to be constitutional.

SC89490
State ex rel. Dr. Bernard Taylor, Jr. v. The Honorable W. Brent Powell
Jackson County
Superintendent's liability to student
Listen to the oral argument:

Taylor was represented during argument by Derek T. Teeter of Husch Blackwell Sanders LLP in Kansas City, and Craig Dydell was represented by George P. Coughlin of Dysart Taylor Lay Cotter & McMonigle PC of Kansas City.

Dr. Bernard Taylor, Jr., is the former superintendent of the Kansas City school district. In the summer of 2004, a student was admitted to Central High School, in the Kansas City school district, and assigned to the special education department. The student was previously expelled from a charter school for attempting to bring a knife onto school grounds and was being treated for hallucinations. In September 2005, Craig Dydell, a student at Central High School, was attacked by the student at school during lunch. Dydell sued Taylor in his personal and professional capacities for injuries Dydell sustained. Dydell argued Taylor provided inadequate policy guidance and failed to provide adequate supervision of the student. In May 2005, Taylor moved for judgment on the pleadings, asserting the defense of official immunity and sovereign immunity. The trial court overruled his motion. Taylor seeks an order prohibiting the circuit court from proceeding further with Dydell's claims.

Taylor argues that he is immune from a lawsuit under the defenses of official immunity and sovereign immunity and that suing him in the "official capacity" claim is not appropriate as he is no longer the superintendent. He contends he was a public employee exercising discretionary, policy-making authority over the students in the school district and Dydell's claims arise from his performance of discretionary acts in the course of his official duties. Taylor asserts there is no categorical bar to official immunity for school administrators if they otherwise satisfy the requirements for official immunity set forth in Southers v. City of Farmington, – S.W.3d – (Mo. banc 2008). He further argues he is entitled to share in the school district's sovereign immunity in that Dydell's "official capacity" claims against him are claims against the school district and he was an agent of the school district at the time of the attack. He contends Rule 52.13(d) makes clear that there cannot be a suit against an individual in his "former official capacity" but rather a plaintiff may only maintain an official capacity suit against an active public official. Taylor argues he ceased to have official capacity prior to Dydell's lawsuit against him.

Dydell responds Taylor is not entitled to relief because the trial court rejected his official immunity defense. He argues Missouri appellate courts have consistently refused to grant immunity to public school administrators and teachers from personal liability where their negligent conduct causes injury to a student. Dydell argues as the superintendent of the school district, Taylor did not qualify as a public official for the purposes of official immunity in that Taylor was subject to the control of the school board and his authority was not created and conferred by law. He asserts the supervisory duty Taylor owed him while Taylor was superintendent was ministerial in nature. Dydell further argues there is no issue involving sovereign immunity in this case in that he did not assert an "official capacity" claim against Taylor.

The Missouri School Boards' Association and the Missouri Association of School Administrators argue, as friends to the Court, that Taylor is entitled to an order prohibiting the circuit court from proceeding any further with Dydell's personal capacity claims against Taylor and prohibiting the circuit court from refusing to enter judgment against Dydell. They contend superintendents and other school administrators who are sued in negligence for failing to prevent student-on-student violence are entitled to official immunity. They assert such defendants are public employees and decisions concerning school security policies and procedures are clearly discretionary and performed in the course of official duties.