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
9:30 a.m. Wednesday, November 7, 2018
SC97284
Darrell Cope, et al. v. Michael L. Parson, et al.
Cole County
Challenges to governor’s authority to appoint a lieutenant governor and to appointee’s title to hold office as lieutenant governor
Listen to the oral argument: SC97284 MP3 file
The challengers were represented during arguments by Matthew B. Vianello of Jacobson Press PC in Clayton; the state was represented by State Solicitor D. John Sauer of the attorney general’s office in Jefferson City.
After Missouri’s previous governor resigned from office, Michael Parson – then serving as lieutenant governor – was sworn in as governor, creating a vacancy in the office of lieutenant governor. Parson subsequently announced he would appoint Mike Kehoe, then serving as a Republican state senator, as lieutenant governor, and Kehoe took the oath of office. The Missouri Democratic Party and Darrell Cope (collectively, the challengers) filed a lawsuit against Parson and Kehoe (collectively, the state) challenging the governor’s authority to appoint a lieutenant governor and Kehoe’s title to hold the lieutenant governor’s office. The circuit court granted the state’s motion to dismiss. The challengers appeal.
This appeal presents several questions for this Court. One involves whether the challengers’ petition presented an actual, existing legal dispute the circuit court could resolve through a declaratory judgment or whether they merely were requesting an advisory opinion the circuit court would lack any authority to provide. Related issues include the nature of the challengers’ claims and whether they abandoned their request for legally binding relief. Another question involves whether the challengers had standing (legal authority) to file their lawsuit. Related issues include whether appointment of a lieutenant governor requires expenditure of state tax money sufficient to give Cope standing as a taxpayer or creates any electoral disadvantage for Democratic party members or otherwise decreases the effectiveness of such members’ votes for a potential Democratic challenger to Kehoe in 2020 sufficient to give the party direct or associational standing. Another related issue is whether Cope or the party abandoned their request for binding relief, causing them to lose any standing they may have had. A further question involves whether the state constitution grants the governor authority to appoint a lieutenant governor and whether the legislature’s enactment of section 105.030, RSMo, excludes the lieutenant governor’s offices from those offices a governor constitutionally may fill.
SC97284_Cope_and_MO_Democratic_Party_brief
SC97284_Parson_and_Kehoe_brief
SC97284_Cope_and_MO_Democratic_Party_reply_brief
SC97186
State ex rel. Willis McCree v. The Honorable Wesley Dalton
Warren County
Challenge to failure to dismiss charge for driving while intoxicated
Listen to the oral argument: SC97186 MP3 file
McCree was represented during arguments by Dominic R. Cicerelli of Boehmer Law LLC in St. Charles; the state was represented by Warren County Prosecutor Kelly L. King of the prosecutor’s office in Warrenton.
The state charged Willis McCree with driving while intoxicated and driving while his license was revoked. The probable cause statement from the sheriff’s deputy who arrested McCree indicated the deputy smelled intoxicants on McCree, observed McCree having difficulty standing, and McCree told the deputy he had consumed several beers and had driven his vehicle. McCree refused to complete field sobriety tests or submit to a chemical breath test. The deputy subsequently obtained a warrant to determine McCree’s blood-alcohol concentration; blood samples showed levels of 0.052 percent and 0.039 percent. After the state charged him and the circuit court set the case for a jury trial, McCree moved to dismiss the driving while intoxicated charge. During a hearing regarding the motion, the state did not present any evidence, and McCree argued the charge should be dismissed because the chemical analysis showed his blood-alcohol level was lower than the 0.08-percent limit for driving while intoxicated and the state had not presented evidence any statutory exception applied. The circuit court overruled McCree’s motion to dismiss. McCree seeks this Court’s relief.
This case presents one question for this Court – whether McCree is entitled to dismissal of the driving while intoxicated charge.
SC97186_McCree_brief
SC97186_State_brief
SC97285
In re: Mary L. Lemp
St. Louis
Attorney discipline
Listen to the oral argument: SC97285 MP3 file
Chief Disciplinary Counsel Alan D. Pratzel represented his office in Jefferson City during arguments; Lemp was represented by Michael P. Downey of Downey Law Group LLC in St. Louis. Judge Mark H. Neill – a circuit judge in the 22nd circuit (St. Louis city) – sat in this case by special designation in place of Judge Laura Denvir Stith.
St. Louis attorney Mary Lemp represented a litigant in an appeal before the state’s appeals court. As a result of inaction in the case, the appeals court ordered the litigant to show cause why the case should not be dismissed. Lemp filed two motions seeking extensions of time to respond to the show cause order, both purporting to be notarized by a notary public. Believing the notarial block had been altered, Lemp’s opposing counsel filed a notice of irregular documents, and the appeals court ordered Lemp to respond. Attached to Lemp’s response was a document in which the notary public purportedly stated she had notarized both of Lemp’s motions. Opposing counsel subsequently filed an affidavit in which the notary stated the notarial attestations had been forged and Lemp had admitted copying and pasting the attestations from prior documents. Opposing counsel and the appeals court both filed reports with the chief disciplinary counsel’s office, which began disciplinary proceedings against Lemp. She alleged she was suffering from a mental disorder following an automobile accident. She did not have an independent medical examination performed to support her claim but alleges the chief disciplinary counsel did not request an independent examination. During an evidentiary hearing, a disciplinary hearing panel sustained the chief disciplinary counsel’s objection to admission of Lemp’s medical records and testimony she sought to use as mitigating evidence she suffered from a mental disorder. The hearing panel ultimately found Lemp violated rules of professional conduct when she forged the notary’s signature blocks on her motions for extension of time. The hearing panel made no findings regarding aggravating or mitigating factors. It recommended Lemp’s law license be suspended indefinitely with no leave to apply for reinstatement for at least six months. Lemp rejected the recommendation. The chief disciplinary counsel now asks this Court to issue the discipline the hearing panel recommended; Lemp argues any suspension should be stayed.
This case presents two questions for this Court – whether Lemp violated the rules of professional conduct and, if so, what discipline, if any, is appropriate.
SC97285_Chief_Disciplinary_Counsel_brief
SC97285_Lemp_redacted_brief
SC97313
In re: Richard L. Winkie
Macon County
Attorney discipline
Listen to the oral argument: SC97313 MP3 file
The chief disciplinary counsel’s office was represented during arguments by Shannon L. Briesacher of the office in Jefferson City; Winkie, an attorney in Macon, represented himself.
Richard Winkie has a solo legal practice in Macon. He represented two couples in a real estate transaction, received proceeds from the sale of the real estate, made partial disbursements to his clients several months later and disbursed the remaining funds to them a year later. Winkie represented another client in a breach of contract case, obtained a judgment on his client’s behalf and garnished the judgment debtor’s wages. At some point, the garnishment expired, and the client learned not all the money collected from the garnishments had been deposited into the client’s bank account. The couples and the other client filed complaints against Winkie with the chief disciplinary counsel’s office, which began an investigation. An audit of Winkie’s operating account and client trust account revealed a number of issues, including insufficient documentation for cash withdrawals from the trust account, payments to Winkie’s employee and wife from the trust account, use of trust account funds for personal and office expenses, and deposits into the trust account from Winkie’s wife and his tenant. Further investigation revealed Winkie had deposited unearned fees from clients into his operating account, holding personal funds in his operating account, and times his operating account was overdrawn. The chief disciplinary counsel’s office began disciplinary proceedings against Winkie. Following an evidentiary hearing, a disciplinary hearing panel found Winkie had committed 16 violations of the code of professional conduct and recommended he be disbarred. Winkie rejected the recommendation. The chief disciplinary counsel now asks this Court to disbar Winkie as the panel recommended; Winkie suggests the appropriate discipline should be probation or a stayed suspension with probation.
This case presents two questions for this Court – whether Winkie violated the rules of professional conduct and, if so, what discipline, if any, is appropriate.
SC97313_Chief_Disciplinary_Counsel_brief
SC97313_Winkie_brief