SC98039
In the Matter of the Amendment of the Commission's Rule Regarding Applications for Certificates of Convenience and Necessity; Kansas City Power and Light and KCP&L Greater Missouri Operations Company v. Missouri Public Service Commission and Dogwood Energy
Cole County
Challenge to regulation governing electric utilities
Listen to the oral argument: SC98039 MP3 file
KCP&L was represented during arguments by Karl Zobrist of Dentons US LLP in Kansas City; the commission was represented by Shelley Brueggemann of the public service commission in Jefferson City.

Judge Jeffrey W. Bates – chief judge of the Missouri Court of Appeals, Southern District – sat in this case by special designation in place of Judge Mary R. Russell.

Kansas City Power & Light Company and KCP&L Greater Missouri Operations Company (collectively, KCP&L) are public electric utilities regulated by the public service commission. Dogwood Energy LLC is the largest owner of an independent energy facility in Pleasant Hill that supplies energy to KCP&L and other utilities. Under section 393.170, RSMo, before building an electric plant, electric utilities must obtain the commission’s approval through a certificate of convenience and necessity. In 2014, Dogwood sought clarification of the commission’s rules relating to section 393.170, including examples of what it described as gaps in regulation of certain utility projects that could negatively impact independent suppliers like Dogwood. In 2018, the commission filed a notice of proposed rulemaking to establish a new rule governing applications for such certificates; at the same time, it rescinded its prior rule governing such applications. The commission accepted written comments and heard public comments during a hearing. Dogwood Energy filed written comments about the proposed rule but did not attend the hearing. KCP&L filed written comments and also offered comments during the public hearing. The commission then issued its final order of rulemaking adopting a new rule imposing certain requirements for when a regulated utility must apply for a certificate. The final order of rulemaking also included a revised fiscal note estimating the aggregate cost for the state’s investor-owned electric utilities to comply with the new rule would be $100,000 or less. KCP&L sought rehearing and a stay of the commission’s final order of rulemaking. The commission denied KCP&L’s request, and the rule and its fiscal note became final. KCP&L appeals.

This appeal presents several questions for this Court involving the lawfulness and reasonableness of the commission’s final order of rulemaking. One involves whether the commission had authority under section 393.170 to promulgate an administrative rule requiring KCP&L to obtain a certificate of convenience and need before “operati[ng] an asset;” improving, retrofitting or rebuilding an electric plant for which it already had a certificate; or building a plant for which a multi-unit certificate previously was granted. Related issues include whether such requirements contradict the statute’s purpose or burden the public interest and whether the regulation merely clarified that a public utility must obtain such a certificate before operating a limited category of assets it intends to acquire from others. An additional question involves whether the commission had statutory authority under section 386.250 to promulgate a rule requiring KCP&L to obtain a certificate before building or operating an electric plant or other asset located outside Missouri. A further question involves whether the commission’s fiscal note violates sections 536.205 and 536.215. Related issues include whether the fiscal note estimates only three years of compliance costs, although the rule has no “sunset” clause terminating its requirements; presumes a 10-percent rate base threshold never will be reached; and fails to consider compliance costs of electric utilities operating or building plants outside Missouri.

SC98039_KCP&L_brief
SC98039_PSC_brief
SC98039_Dogwood_Energy_brief_filed_in_WD
SC98039_KCP&L_reply_brief


SC97674
State ex rel. Travis Jonas v. Dean Minor
Randolph and St. Charles counties
Challenge to revocation of probation
Listen to the oral argument: SC97674 MP3 file
Jonas was represented during arguments by Amy E. Lowe of the public defender’s office in St. Louis; the state was represented by Patrick J. Logan of the attorney general’s office in Jefferson City.

Travis Jonas pleaded guilty to identity theft in St. Charles County. The circuit court sentenced him to seven years in prison, suspended execution of the sentence, placed him on five years’ supervised probation and ordered him to pay restitution as a condition of probation. He later completed his restitution, but the state moved to revoke his probation, alleging new violations. The circuit court suspended his probation and, approximately 15 months later, revoked his probation and executed the seven-year prison sentence. Jonas currently is in prison in Moberly. Jonas sought postconviction relief in St. Charles County, arguing he had sufficient earned compliance credits to have been discharged from probation before the circuit court suspended his probation; therefore, the circuit court lacked authority to revoke his probation. The circuit court overruled his motion. He then sought but was denied habeas relief in the Randolph County circuit court. Jonas now seeks this Court’s writ of habeas corpus to release him from prison.

This case presents one question for this Court – whether the circuit court lacked authority to revoke Jonas’ probation. Related issues include whether his probation ended before the state attempted to suspend it to trigger revocation proceedings, whether he met the conditions for early discharge, the effect of the earned compliance credit statute’s 60-day notice provision, whether the circuit court violated Jonas’ constitutional due process rights, and whether the calculation of an earned compliance credit discharge date can be challenged in a habeas corpus proceeding.

SC97674_Jonas_brief
SC97674_State_brief


SC98072
State ex rel. Eager Road Associates LLC v. The Honorable Brian H. May
St. Louis County
Effect of receiving a change of judge in a prior case on the party’s ability to seek a change of judge in a subsequent case
Listen to the oral argument: SC98072 MP3 file
Eager Road was represented during arguments by David E. Larson of Martin, Pringle, Oliver, Wallace & Bauer LLP in Kansas City; Blitz, Bardgett & Deutsch was represented by James F. Bennett of Dowd Bennett LLP in St. Louis.

Eager Road Associates LLC sued its former law firm, Blitz, Bardgett & Deutsch LC, raising claims of overbilling, legal malpractice, breach of fiduciary duty, fraudulent concealment and fraudulent misrepresentation. The law firm answered and filed a counterclaim seeking payment of approximately $215,000 in unpaid legal bills and an additional $4 million in quantum meruit (a sum of money to be paid for services rendered for work not stipulated in a contract). The law firm then filed an application for a change of judge, which the circuit court granted. Eager Road then filed an application for a change of judge under Rule 51.05, which the circuit court granted. After the third judge retired, the case was transferred to a fourth judge. The circuit court subsequently granted the law firm’s motion for summary judgment on four of the five counts in the lawsuit, and, before trial, Eager Road dismissed the remaining count without prejudice. Several weeks later, the law firm’s counterclaim was dismissed with prejudice. The following year, Eager Road again sued the law firm, raising just the overbilling claim from the first case, and the circuit court assigned it to the prior case’s fourth judge. Eager Road filed an application for a change of judge pursuant to Rule 51.05. The circuit court denied the application, finding Eager Road exhausted its one change of judge under Rule 51.05 in the prior lawsuit. Eager Road now seeks this Court’s permanent writ of mandamus directing the circuit court to take no action other than granting the change of judge application.

This case presents one question for this Court – whether Eager Road is entitled to a change of judge. Related issues include whether exercising its right to a change of judge under Rule 51.05 in the prior lawsuit precludes Eager Road from seeking a change of judge under Rule 51.05 in its second lawsuit; whether refiling a case under section 516.230, RSMo, constitutes a new action; whether Eager Road’s application complied with all the rule’s requirements; and whether mandamus is the appropriate remedy.

SC98072_Eager_Road_Associates_brief
SC98072_Blitz_Bardgett_&_Deutsch_brief
SC98072_Eager_Road_Associates_reply_brief
 

In re: Michael M. Spiegel
Jackson County
Attorney discipline
Listen to the oral argument: SC98155 MP3 file
The chief disciplinary counsel was represented during arguments by Sam S. Phillips of the chief disciplinary counsel’s office in Jefferson City; Spiegel was represented by James C. Morrow of Morrow Willnauer Church LLC in Kansas City.

A woman retained Blue Springs attorney Michael Spiegel in January 2013 to represent her in an attempt to have a circuit court modify its prior judgment regarding custody and support of her minor child. The two had met briefly several years earlier, but they had no relationship before the woman hired Spiegel as her attorney. Within days, Spiegel suggested they begin communicating by text message late at night. After a hearing later that month, Spiegel asked if he could stop by the woman’s house to make sure she was okay. They began a sexual relationship that evening and continued in a sexual relationship for several months, texting nightly about personal matters. Ultimately, the woman told Spiegel she wanted to end their sexual relationship but asked him to continue representing her in her custody case. The circuit court granted Spiegel leave to withdraw from the woman’s case, and she later lost custody of her child for a few months. She sued Spiegel for legal malpractice; the case ultimately was settled. The chief disciplinary counsel instituted disciplinary proceedings. During a hearing, Spiegel admitted he had a sexual relationship with his client but denied it affected his representation, stating any adverse impact on his client during her case was of her own making, including her dishonesty during court testimony. The disciplinary hearing panel found Spiegel violated several rules of professional conduct by initiating sexual relations with his client when no such relationship existed before he became her attorney. The panel recommended Spiegel’s law license be suspended indefinitely with no leave to apply for reinstatement for one year, the suspension be stayed, and Spiegel’s license be placed on probation for one year. The chief disciplinary counsel rejected the recommendation, disputing Spiegel’s eligibility for probation. The chief disciplinary counsel now asks this Court to suspend Spiegel’s law license with no leave to apply for reinstatement for at least six months; Spiegel asks to receive no more than probation.

This case presents two questions for this Court – whether Spiegel violated rules of professional conduct and, if so, what discipline, if any, is appropriate.

SC98155_Chief_Disciplinary_Counsel_brief
SC98155_Spiegel_brief