The materials below are provided solely for the interest and convenience of the reader, are not official Court records, and should not be quoted or cited as such. Once cases are docketed, the briefs filed by the parties typically are posted within a day or so. Summaries of the cases are prepared by the Court’s communications counsel and typically are posted the week before arguments. Audio files and information about attorneys who argued typically are posted within a day or so after arguments. Further information about the cases may be available through Case.net.
DOCKET SUMMARIES
SUPREME COURT OF MISSOURI
9 a.m. Tuesday, February 6, 2018
SC96496
Grayland Nowden v. Division of Alcohol & Tobacco Control, Missouri Department of Public Safety
Cole County
Whether fired employee failed to exhaust administrative remedies
Listen to the oral argument: SC96496 MP3 file
Nowden was represented during arguments by David Moen, an attorney in Jefferson City; the division was represented by Deputy Solicitor Joshua Divine of the attorney general’s office in Jefferson City.
Grayland Nowden worked as a special agent with the state’s division of alcohol and tobacco control. In October 2013, following an investigation, the division’s director notified Nowden he was being terminated immediately pursuant to section 311.620.4, RSMo, and giving him a right to appeal to the director of public safety under the department’s policy. Nowden applied for such an appeal and, after receiving no response, filed a complaint with the administrative hearing commission. The department subsequently notified Nowden his appeal was untimely and moved to dismiss Nowden’s complaint. In January 2014, the commission determined it lacked jurisdiction over Nowden’s complaint because he was not a merit system employee and the department was a law enforcement agency that need not adopt disciplinary procedures substantially similar to those used in the merit system. Nowden sought review in the circuit court, which ultimately granted summary judgment (judgment on the court filings, without a trial) in favor of the department, holding Nowden failed to exhaust his administrative remedies, depriving the circuit court of authority to proceed. Nowden appeals.
This appeal presents several questions for this Court involving whether the circuit court properly found Nowden failed to exhaust administrative remedies. One is whether a person is required to exhaust administrative remedies when no facts are in dispute and the legal issue is the validity of a rule or the constitutional validity of a statute. Another involves whether Nowden had a right to a hearing under the department’s policy and an opportunity to exhaust administrative remedies or whether the administrative remedy otherwise was adequate. Other questions involve whether the department’s rules allowed for review of an immediate termination made pursuant to section 311.620.4 or deprived Nowden of any constitutional rights to pre-deprivation due process.
SC96496_Division_of_Alcohol_&_Tobacco_Control_briefListen to the oral argument: SC96496 MP3 file
Nowden was represented during arguments by David Moen, an attorney in Jefferson City; the division was represented by Deputy Solicitor Joshua Divine of the attorney general’s office in Jefferson City.
Grayland Nowden worked as a special agent with the state’s division of alcohol and tobacco control. In October 2013, following an investigation, the division’s director notified Nowden he was being terminated immediately pursuant to section 311.620.4, RSMo, and giving him a right to appeal to the director of public safety under the department’s policy. Nowden applied for such an appeal and, after receiving no response, filed a complaint with the administrative hearing commission. The department subsequently notified Nowden his appeal was untimely and moved to dismiss Nowden’s complaint. In January 2014, the commission determined it lacked jurisdiction over Nowden’s complaint because he was not a merit system employee and the department was a law enforcement agency that need not adopt disciplinary procedures substantially similar to those used in the merit system. Nowden sought review in the circuit court, which ultimately granted summary judgment (judgment on the court filings, without a trial) in favor of the department, holding Nowden failed to exhaust his administrative remedies, depriving the circuit court of authority to proceed. Nowden appeals.
This appeal presents several questions for this Court involving whether the circuit court properly found Nowden failed to exhaust administrative remedies. One is whether a person is required to exhaust administrative remedies when no facts are in dispute and the legal issue is the validity of a rule or the constitutional validity of a statute. Another involves whether Nowden had a right to a hearing under the department’s policy and an opportunity to exhaust administrative remedies or whether the administrative remedy otherwise was adequate. Other questions involve whether the department’s rules allowed for review of an immediate termination made pursuant to section 311.620.4 or deprived Nowden of any constitutional rights to pre-deprivation due process.
SC96719
State of Missouri ex rel. Bryan Travis Robison v. Chlora Lindley-Myers, Director, Department of Insurance, Financial Institutions and Professional Registration
Cole County
Whether renewal of bond agent’s license can be denied without procedural due process
Listen to the oral argument: SC96719 MP3 file
Robison was represented during arguments by David Barrett, an attorney in Jefferson City; the director was represented by Senior Counsel Cheryl Nield of the insurance department in Jefferson City.
The state’s department of insurance, financial institutions and professional registration has licensed Bryan Travis Robison as a general bail bond agent since 2007. He applied to renew his license before it was scheduled to expire in August 2016. In July 2016, following an investigation, the department’s director entered an order refusing to renew the license pursuant to section 374.750, RSMo, giving him no prior notice or opportunity for a hearing. Robison sought relief in the circuit court, which issued a preliminary writ but ultimately quashed the writ, issuing its judgment denying relief. Robison appeals.
This appeal presents one primary question for this Court – whether a general bail bond agent has a right to renew his license despite any provision of section 374.750 to the contrary. A related issue involves whether professional licenses constitute “property” under the state or federal constitution; if so, whether a licensee can be deprived of such a license under the statute without procedural due process; and whether Robison properly raised this claim. Another issue involves whether Robison was required to exhaust administrative remedies in the administrative hearing commission before seeking relief in the courts.
Listen to the oral argument: SC96719 MP3 file
Robison was represented during arguments by David Barrett, an attorney in Jefferson City; the director was represented by Senior Counsel Cheryl Nield of the insurance department in Jefferson City.
The state’s department of insurance, financial institutions and professional registration has licensed Bryan Travis Robison as a general bail bond agent since 2007. He applied to renew his license before it was scheduled to expire in August 2016. In July 2016, following an investigation, the department’s director entered an order refusing to renew the license pursuant to section 374.750, RSMo, giving him no prior notice or opportunity for a hearing. Robison sought relief in the circuit court, which issued a preliminary writ but ultimately quashed the writ, issuing its judgment denying relief. Robison appeals.
This appeal presents one primary question for this Court – whether a general bail bond agent has a right to renew his license despite any provision of section 374.750 to the contrary. A related issue involves whether professional licenses constitute “property” under the state or federal constitution; if so, whether a licensee can be deprived of such a license under the statute without procedural due process; and whether Robison properly raised this claim. Another issue involves whether Robison was required to exhaust administrative remedies in the administrative hearing commission before seeking relief in the courts.
SC96601
State of Missouri ex rel. Shayne Healea v. The Honorable Frederick P. Tucker
Boone and Shelby counties
Challenges to attorney general’s office as special prosecutor, recording of attorney-client communication
Listen to the oral argument: SC96601 MP3 file
Healea was represented during arguments by Shane Farrow of Brown, Cornell and Farrow LLC in Jefferson City; the attorney general was represented by First Assistant and Solicitor John Sauer of the attorney general’s office in Jefferson City.
Shayne Healea was arrested following an October 2014 automobile accident in Columbia. Upon arrival at the local police department, Healea asked to speak privately with counsel. He was given his cellular telephone and placed in a holding cell, from which he had a telephone conversation with his attorney. The attorney general’s office was appointed as special prosecutor, and venue over the case was changed from Boone County to Shelby County. At some point, Healea became concerned the police department had recorded his telephone conversation with his attorney. Such a recording was among case materials the police department provided in November 2014 to the attorney general’s office, which ultimately turned the case materials – and the recording – over to Healea as part of discovery, although the office denies any of its members having any knowledge of the recording’s contents. In October 2016, Healea filed a motion alleging the police department had violated his Sixth Amendment right to a fair trial and attorney-client privilege by recording his conversation the night of his arrest. Following a hearing, the special master assigned to consider this issue filed his report under seal. The report – in which the master found a Sixth Amendment violation had occurred – contained portions of the actual content of Healea’s telephone conversation with his attorney. Healea filed objections to the master’s report, but the circuit court did not hold a hearing regarding the objections. The circuit court also declined Healea’s request to close the courtroom during a February 2017 hearing to determine a remedy for the Sixth Amendment violation. Healea asserted he could not argue his objections properly without divulging attorney-client communications, which he declined to do in open court. The circuit court advised the parties of its intent to unseal the master’s report. Following a hearing, the circuit court also overruled Healea’s motion to suppress evidence from a blood draw taken the night of his arrest. Healea sought relief in the appeals court, which ordered the circuit court to disqualify the attorney general’s office and appoint a new special prosecutor, to seal portions of the master’s report containing privileged attorney-client information, and to hold a hearing to determine whether the police department should be required to purge its servers of any attorney-client privileged conversation recorded in violation of Healea’s Sixth Amendment rights. The state seeks this Court’s review.
This case presents several questions for this Court. One involves whether the police department or attorney general’s office violated Healea’s state or federal constitutional rights by possessing an audio and video recording of Healea’s privileged communications with his attorney the night he was arrested. Related issues include whether there is an appearance of impropriety in the attorney general’s office continuing to serve as special prosecutor; whether it is appropriate for the circuit court to disqualify the attorney general’s office and appoint a new special prosecutor; and what non-conflicted prosecutor could serve as special prosecutor instead. Another question involves whether the police department’s continued possession of recordings of attorney-client communications violates Healea’s constitutional rights and whether the department can or should be ordered to purge its servers and case files. Additional questions include whether the circuit court should have held a hearing regarding Healea’s objections to the master’s report, whether the report contains privileged attorney-client communications, whether the report should be kept sealed in part or whole, and whether an order to seal can be permanent. A further question involves whether the warrant to draw Healea’s blood the night of his arrest was lost or unsigned and, if so, whether section 542.276, RSMo, requires the circuit court to invalidate the warrant.
Listen to the oral argument: SC96601 MP3 file
Healea was represented during arguments by Shane Farrow of Brown, Cornell and Farrow LLC in Jefferson City; the attorney general was represented by First Assistant and Solicitor John Sauer of the attorney general’s office in Jefferson City.
Shayne Healea was arrested following an October 2014 automobile accident in Columbia. Upon arrival at the local police department, Healea asked to speak privately with counsel. He was given his cellular telephone and placed in a holding cell, from which he had a telephone conversation with his attorney. The attorney general’s office was appointed as special prosecutor, and venue over the case was changed from Boone County to Shelby County. At some point, Healea became concerned the police department had recorded his telephone conversation with his attorney. Such a recording was among case materials the police department provided in November 2014 to the attorney general’s office, which ultimately turned the case materials – and the recording – over to Healea as part of discovery, although the office denies any of its members having any knowledge of the recording’s contents. In October 2016, Healea filed a motion alleging the police department had violated his Sixth Amendment right to a fair trial and attorney-client privilege by recording his conversation the night of his arrest. Following a hearing, the special master assigned to consider this issue filed his report under seal. The report – in which the master found a Sixth Amendment violation had occurred – contained portions of the actual content of Healea’s telephone conversation with his attorney. Healea filed objections to the master’s report, but the circuit court did not hold a hearing regarding the objections. The circuit court also declined Healea’s request to close the courtroom during a February 2017 hearing to determine a remedy for the Sixth Amendment violation. Healea asserted he could not argue his objections properly without divulging attorney-client communications, which he declined to do in open court. The circuit court advised the parties of its intent to unseal the master’s report. Following a hearing, the circuit court also overruled Healea’s motion to suppress evidence from a blood draw taken the night of his arrest. Healea sought relief in the appeals court, which ordered the circuit court to disqualify the attorney general’s office and appoint a new special prosecutor, to seal portions of the master’s report containing privileged attorney-client information, and to hold a hearing to determine whether the police department should be required to purge its servers of any attorney-client privileged conversation recorded in violation of Healea’s Sixth Amendment rights. The state seeks this Court’s review.
This case presents several questions for this Court. One involves whether the police department or attorney general’s office violated Healea’s state or federal constitutional rights by possessing an audio and video recording of Healea’s privileged communications with his attorney the night he was arrested. Related issues include whether there is an appearance of impropriety in the attorney general’s office continuing to serve as special prosecutor; whether it is appropriate for the circuit court to disqualify the attorney general’s office and appoint a new special prosecutor; and what non-conflicted prosecutor could serve as special prosecutor instead. Another question involves whether the police department’s continued possession of recordings of attorney-client communications violates Healea’s constitutional rights and whether the department can or should be ordered to purge its servers and case files. Additional questions include whether the circuit court should have held a hearing regarding Healea’s objections to the master’s report, whether the report contains privileged attorney-client communications, whether the report should be kept sealed in part or whole, and whether an order to seal can be permanent. A further question involves whether the warrant to draw Healea’s blood the night of his arrest was lost or unsigned and, if so, whether section 542.276, RSMo, requires the circuit court to invalidate the warrant.