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
Tuesday, October 6, 2020
Scheduled for 9 a.m. – SC98501
Randall Graves v. Missouri Department of Corrections, the Division of Probation and Parole
Cole County
Challenge to imposition of monthly intervention fee Listen to the oral argument: SC98501 MP3 file
Graves was represented during arguments by Matthew G. Mueller of MGM Law LLC in St. Louis; the department was represented by Emily A. Dodge of the attorney general’s office in Jefferson City.
Graves pleaded guilty to one count of receiving stolen property. In January 2019, the circuit court sentenced him to six years in prison, suspended execution of the sentence and placed him on supervised probation. The department of corrections is requiring Graves to pay $30 per month in intervention fees as a condition of his supervised probation. In April 2019, the division sent Graves correspondence advising he had an overdue balance of $60 and failure to pay the monthly intervention fee “may place [him] in ‘violation status.’” Information published by the division states that House Bill No. 700, enacted into law in August 2005, authorizes it to collect an intervention fee from offenders and that the division has authority to use income tax interception and other authorized collection activities to satisfy obligation of this fee. Graves’ sole source of income is $771 per month in federal supplemental security income benefits he receives due to disability. In May 2019, he filed a petition in the circuit court seeking a judgment declaring that federal law prohibits the division from subjecting his social security benefits from other legal process. The division moved to dismiss the case. The circuit court sustained the motion, dismissing the case with prejudice (so it cannot be refiled). Graves appeals.
This appeal presents one question for this Court – whether Graves’ petition for declaratory judgment adequately stated a claim on which relief could be granted. Related issues include whether this case is ripe (legally ready) for determination or, alternatively, whether the circuit court improperly reached the merits of Graves’ case while ruling on the division’s motion to dismiss; and if reaching the merits is appropriate, whether requiring Graves to pay a monthly intervention fee as a condition of his probation violates federal law by subjecting his supplemental security benefits to “other legal process.”
Scheduled for 10 a.m. – SC98517
Elizabeth Butala, et al. v. The Curators of the University of Missouri
Boone County
Challenge to dismissal of patients’ claims against university Listen to the oral argument: SC98517 MP3 file
The patients were represented during arguments by Edward D. “Kip” Robertson III of Bartimus Frickleton Robertson Rader in Leawood, Kansas; the curators were represented by Darci F. Madden of Bryan Cave Leighton Paisner LLP in St. Louis.
The University of Missouri is governed by a board of curators (collectively, the university). The Mizzou BioJoint Center is affiliated with the university. In cases consolidated on appeal, 11 patients sued the curators, two of the center’s orthopedic surgeons (one of whom is its medical director) and a veterinarian (who serves as the center’s director of operations and scientific director) for what the patients alleged were misleading statements about a new tissue preservation system and surgical procedure performed at the center. The patients underwent surgeries to repair knee injuries using the center’s procedure. The patients alleged the surgeries failed and the defendants misrepresented the risks and efficacy of the surgery. The timing and specific process in the cases varies, but generally the patients asserted violations of the state’s merchandising practices act, claims relating to advertising practices and medical malpractice claims. The parties dispute whether claims singled out the university or were made collectively against all the defendants. The university moved to dismiss the claims, alleging it was protected by sovereign immunity. The circuit court sustained the motions to dismiss without providing its reasons. Those patients then moved for leave to assert negligent misrepresentation claims against the university and to allege the university’s purchase of an insurance policy constituted a waiver of its sovereign immunity protections. In some cases, the circuit court denied leave to amend; in others, the patients were granted leave to amend. In later-filed cases, the patients asserted claims for violating the merchandising practices act and for negligent misrepresentation. The university moved to dismiss all the claims against it, arguing it is protected by sovereign immunity and it is not a “person” subject to liability under the merchandising practices act. The circuit court sustained the university’s motions, entered judgments of dismissal in all 11 cases and certified its judgments as final for purposes of appeal pursuant to Rule 74.01. The patients appeal.
This appeal presents several questions. One involves whether the circuit court correctly certified the judgments of dismissal for immediate appeal pursuant to Rule 74.01(b). Related issues include whether the rule gives circuit courts discretion to enter judgment as to one or more, but fewer than all, parties and certify that judgment for immediate appeal, whether the circuit court’s judgment dismissing the university from the lawsuit was such an eligible judgment and, if so, whether the circuit court properly exercised its discretion in certifying the judgment for immediate appeal. Another question involves whether the circuit court’s dismissal of the claims against the university violates the open courts provision of article I, section 14 of the state constitution. Related issues include whether the open courts provision precludes sovereign immunity and whether the patients preserved their constitutional challenge for review. Other questions involve whether the circuit court erred in sustaining the university’s motion to dismiss and the extent to which sovereign immunity applies. Related issues include whether the university’s liability insurance policy covers claims for deceptive advertising or expressly waives sovereign immunity for the damages the patients seek; whether the university is subject to a sovereign immunity exception either as a “municipal corporation” under Missouri law or because its biojoint advertising is a proprietary, rather than governmental, activity; whether sovereign immunity applies to claims under the merchandising practices act; and whether the university is a “person” subject to liability under the merchandising practices act. A further question is whether the circuit court erred in overruling the patients’ motions for leave to amend their petitions to add tort claims against the university. Related issues include whether the motions were timely; whether amended petitions would cure the defect in the initial pleading or prejudice the university; and whether, once it sustained the motions to dismiss, the circuit court should have granted the patients leave to amend under Rule 67.06.
Scheduled for 11 a.m. – SC98544
In re: John E. Tresslar
St. Louis
Attorney discipline
Listen to the oral argument: SC98544 MP3 file
The chief disciplinary counsel was represented during arguments by Shevon L. Harris of The Harris Law Firm in St. Louis; Tresslar was represented by Michael P. Downey of Downey Law Group LLC in St. Louis.
A man retained St. Louis attorney John Tresslar to represent him in personal injury and workers’ compensation cases. In 2012, the man and his employer’s insurer settled the workers’ compensation claim and sent Tresslar notice of its subrogation claim in the personal injury case against a third party. In September 2013, Tresslar settled the man’s personal injury claim and disbursed the proceeds. He retained $51,220 to satisfy the insurer’s lien but did not disburse it. In March 2016, the insurer sued Tresslar and his former client, seeking the subrogation monies it was owed. Without the man’s knowledge or consent, Tresslar filed answers on the man’s behalf. In March 2017, the circuit court entered a judgment against them, but Tresslar did not inform the man about the judgment and did not satisfy it for two and a half years. In 2016, a father paid $8,500 to retain Tresslar to represent his daughters in separate matters. After more than a year with very little progress and Tresslar’s failure to respond timely to his inquiries, the father in June 2017 terminated Tresslar’s representation and requested his file and a refund of his retainer fees. After multiple follow-up inquiries over approximately five months, the father received a $4,500 refund check with no billing statement or invoices detailing services rendered to earn the remaining $4,000. After the father filed a complaint with the chief disciplinary counsel’s office, Tresslar sent the father an undated bill for $4,000 for services rendered, reflecting an entry for “begin draft of lawsuit.” During its investigation, the chief disciplinary counsel’s office audited Tresslar’s operating and trust accounts. The audit revealed Tresslar did not maintain individual client ledgers for the trust account, did not maintain a receipt and disbursement journal, moved funds from his trust account to his operating account without maintaining adequate records documenting the reasons for the transfers, allowed the trust fund balance to fall below the amount of necessary client funds that should have remained in the trust account, and received funds on behalf of clients but failed to make payments on their behalf or remit to them what they were owed. The chief disciplinary counsel instigated disciplinary proceedings against Tresslar. At the hearing, Tresslar testified he was experiencing emotional and personal problems during part of the time in question, including treatment for leukemia and marital problems. He also testified he ultimately paid clients or third parties the amounts they were due and had made changes to his trust accounting practice. He characterized his conduct as selfish but not reflecting a dishonest motive and testified about his pro bono and charitable work and involvement with community and legal organizations. The disciplinary hearing panel found Tresslar had violated several rules of professional conduct, had dishonest motives and was dishonest during the investigation, and had engaged in a pattern of misconduct. The panel recommended Tresslar be disbarred. Tresslar rejected the recommendation. The chief disciplinary counsel asks this Court to disbar Tresslar; Tresslar argues his conduct and mitigating evidence support no more than an indefinite suspension.
This case presents two questions for this Court – whether Tresslar violated rules of professional conduct and, if so, what discipline, if any, is appropriate.
Scheduled for noon – SC98744
Missouri State Conference of the National Association for the Advancement of Colored People, et al. v. State of Missouri, et al.
Cole County
Challenges to election law in light of COVID-19
Listen to the oral argument: SC98744 MP3 file
The challengers were represented during arguments by Sophia Lin Lakin of the American Civil Liberties Union Foundation in New York city; the state was represented by State Solicitor D. John Sauer of the attorney general’s office in Jefferson City.
In April 2020, the Missouri State Conference of the National Association for the Advancement of Colored People, the League of Women Voters and registered voters (collectively, the challengers) sued the state, the secretary of state and local election officials (collectively, the state), challenging election statutes in light of the COVID-19 pandemic. The circuit court dismissed the case, and the challengers appealed. Meanwhile, the governor signed into law a bill making two changes to section 115.277, RSMo, for voting through December 2020. First, the bill authorizes voters who have COVID-19 or are in one of eight categories of individuals at risk for contracting or spreading COVID-19 to cast an absentee ballot without having the signature notarized. Second, it creates a new process for any voter to mail in votes for which they have had their signatures notarized. This Court reversed the circuit court’s judgment and remanded (sent back) the case. On remand, the challengers filed an amended petition. In count I, they sought a declaratory judgment that section 115.277.1(2) permits registered voters who expect to confine themselves on election day due to COVID-19 to cast an absentee ballot without a notary seal. In count II, the challengers sought to enjoin enforcement of statutes that prevent voters from casting an absentee or mail-in ballot without a notary seal during the pandemic. Absentee and mail-in voting for Missouri’s general election began September 22; two days later, the circuit court entered its judgment in the state’s favor on both counts. The challengers appeal.
This appeal presents several questions for this Court. One involves whether section 115.277.1(2) plainly and unambiguously allows persons who expect to confine themselves on election day because they do not want to contract or spread COVID-19 to cast an absentee ballot without having their signature notarized or whether it must be construed as excluding those who are not ill or disabled. Another question involves whether the circuit court failed to consider evidence of burdens associated with requiring ballots to be notarized, including health risks, voter confusion, photographic identification issues, notary availability and disparate burdens on minority voters. Related issues include whether the challengers properly pleaded or timely raised these claims, whether evidence of such burdens was relevant or would have prejudiced the state, and whether exclusion of such evidence prejudiced the challengers. Additional questions involve whether the circuit court’s judgment denying injunctive relief was against the weight of the evidence or misapplied the law. Related issues include whether the notarization requirement for absentee and mail-in ballots during the pandemic survives strict scrutiny or rational basis review; whether the challengers presented sufficient evidence demonstrating the notarization requirement imposes a severe restriction, heavy burden or otherwise violates the fundamental right to vote or were required to show a person had tested positive for COVID-19 after an in-person notarization; the extent to which the challengers claims are governed by the right to free and open elections and voting under article I, section 25 or the right to absentee voting under article VIII, section 7 of the state constitution; and the extent of the state’s discretion to place requirements on absentee and mail-in voting. Further questions involve whether the circuit court erred in finding the organizational challengers lack standing (legal ability to sue); the extent to which relief – including invalidating the notary requirement or reprinting absentee or mail-in ballot envelopes – actually and realistically is available; and whether relief is barred by the United States Supreme Court’s decision in Purcell v. Gonzalez allowing relief to be denied to avoid voter confusion and consequent incentive to remain away from the polls.
Certain doctors and professors of epidemiology filed a brief as friends of the court. They argue, because COVID-19 is highly contagious and can be prevented effectively only through social distancing, using in-person polling locations and requiring voters to have absentee ballots notarized present unavoidable increased risks of transmitting the virus that causes COVID-19.