Case Summary for May 11, 2004

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Case Summary for May 11, 2004

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, May 11, 2004
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SC85448
Rubin Weeks v. State of Missouri
Cape Girardeau County
CONSOLIDATED WITH
SC85552
State of Missouri v. Rubin Weeks
Bollinger County
Request for DNA testing after pleading guilty to kidnapping and rape

A motel employee was driving home from work when a car behind her flashed its lights several times. After she pulled over and rolled down her window, a man reached inside her car with a large knife, cutting her, and dragged the woman out of her car and into his. He drove her out of Cape Girardeau County and into Bolivar County, sodomizing her while he was driving. Near a Bollinger County farm, the man pulled the woman out of the car, forced the woman to sodomize him, then raped her. He taped her hands and knees with duct tape and left her there, but she escaped and went to the sheriff's department and then to the hospital, where collections were taken for a rape kit. A few weeks later, authorities arrested Rubin Weeks in Bolivar County, Mississippi. The woman selected Weeks's picture out of a photo array, although her husband, who had been with her at the motel when the man checked in, selected another person. While in jail, Weeks was treated for insulin-dependent diabetes and was administered anti-depressant and anti-psychotic medication. The Cape Girardeau County prosecutor charged Weeks with one count of kidnapping. The Bollinger County prosecutor charged Weeks with one count each of forcible rape, forcible sodomy and armed criminal action. In February 1992, Weeks pled guilty to kidnapping and rape, and the prosecutors agreed to drop the other charges and to recommend that his sentences run concurrently. He told the court that he was guilty, that he did what the prosecutors said he did and that everything in the charges was true and correct. The court accepted the pleas and sentenced Weeks as a prior and persistent offender to 30 years in prison for the kidnapping conviction and a concurrent life term for the rape conviction. His motion for post-conviction relief was denied for being filed after the deadline, which passed while Weeks was in Fulton State Hospital. His subsequent state and federal petitions for a writ of habeas corpus also were denied. Weeks filed motions for DNA testing under section 547.035, RSMo, in October 2001 in Cape Girardeau County and in January 2002 in Bollinger County. In April 2002, the court denied both motions, without an evidentiary hearing, in one written judgment. Weeks appeals.

Weeks argues that, to the extent the court concluded, as a matter of law, that relief under section 547.035 is not available to a person who pleads guilty, it erred. He contends the statute's plain language makes specific provisions for processing motions filed by those who have pled guilty. Weeks asserts that the court clearly erred in denying him appointed counsel and a hearing on his motion for DNA testing. He argues the court improperly ruled that he is not entitled to relief. He contends that the state's case against him was weak because the prosecutor failed to include in the case records and files a laboratory report. He asserts that there was a reasonable probability he would not have been convicted had he been able to introduce into evidence a DNA test result showing that he could not have been the source of the semen found in the rape kit or on the victim's clothes. Weeks argues that the court improperly concluded that identity was not an issue in the trial. He contends the case record showed that identity of the rapist was the only issue and that his guilty plea did not remove that issue from the case. Weeks asserts that DNA profiling technology was not reasonably available to him in 1992 when he pled guilty, particularly because he was an indigent defendant in southeast Missouri at the time.

The state responds that the court properly denied Weeks's motion for post-conviction DNA testing and the appointment of counsel. It argues Weeks failed to verify the motion, which is required by section 547.035.2, RSMo. It contends Weeks failed to plead sufficient facts to support his claim because he pled only the conclusions that identity was an issue at trial and that the technology for the testing was not reasonably available to him at the time of trial. The state asserts that Weeks waived his claim that a laboratory report would have exonerated him because he failed to raise that claim in the motion court. The state responds that Weeks was not entitled to an evidentiary hearing on his motions for DNA testing because his claims were refuted by the files and records of the case. It argues that identity was not an issue at trial because he pled guilty, admitting his guilt knowingly and voluntarily. It contends a guilty plea in open court waives a defense of innocence. The state further responds that the record refutes Weeks's claims that DNA testing was not reasonably available to him, that a DNA test would have exonerated him and that he is innocent.

The Northwestern University School of Law Center on Wrongful Convictions, The Innocence Project at the Benjamin N. Cardozo School of Law, and the Public Interest Litigation Clinic argue, as friends of the Court, that section 547.035 should be interpreted to allow a defendant who pled guilty or gave a confession to seek post-conviction DNA testing. They contend interpreting the statute to preclude DNA testing in such circumstances will result in the continued incarceration of innocent people who can be exonerated by DNA testing, which they assert is the most precise and accurate way to determine guilty, and will jeopardize public safety. They further argue that allowing defendants who plead guilty or give confessions to obtain DNA testing also may lead to identification of the actual assailant of a particular crime.

SC85711
R.E.J., Inc., A Missouri Corporation v. City of Sikeston and Greers Grove Development, LP
Scott County
Challenge to zoning ordinance; alleged Sunshine Law violations

In June 2001, Greers Grove Development, L.P., submitted a proposal to rezone 12 acres in Sikeston to the city's planning and zoning commission. At the time, the property was zoned as "agricultural open space," and the proposal was to rezone it as C-3/highway commercial. The commission voted not to rezone the property to either C-3/highway commercial or C-1/neighborhood shopping district. The next month, the city council held a public meeting about a proposed ordinance designed to overrule the commission's decision. Adjacent property owners, including REJ, Inc., presented petitions to the city council protesting the rezoning. At a July 2001 public meeting, the council read the ordinance, designed to change the property's zoning to C-3, and voted to approve it. As approved and signed, however, the ordinance rezoned the property. According to the ordinance, the rezoning was to C-1/highway commercial, but according to the minutes of the meeting, the rezoning was to C-1/neighborhood commercial. In August 2001, the city enacted another version of the ordinance that would rezone the property as C-1 neighborhood commercial. Ten days later, REJ sued the city, alleging that the ordinance was void and that the city violated the state's "sunshine law," codified in chapter 610, RSMo. In August 2002, the city enacted a new ordinance repealing the one that was the subject of the lawsuit and subsequently moved to dismiss REJ's petition as moot. In September 2002, the court dismissed REJ's petition and denied its motion for leave to file its first amended petition. REJ appeals.

REJ argues the court erred in dismissing its petition. It contends its claims were not moot because they sought remedies for the city's sunshine law violations, including a declaration that the rezoning ordinance was void, an injunction preventing its enforcement, and costs and attorneys' fees. It asserts that its request for those remedies constitutes a continuing justiciable controversy. REJ argues the court abused its discretion in denying its motion for leave to file a first amended petition. REJ contends that its first amended petition asserted the same causes of action alleged in its original petition and that it supported its claims by alleging new facts and information learned during discovery.

The city responds that the court properly dismissed REJ's petition and that the court did not abuse its discretion in denying REJ's motion for leave to file a first amended petition. The city argues that the counts seeking a declaration that the ordinance was void, for an injunction against the ordinance's enforcement became moot when the city repealed the ordinance in question in its entirety. The city contends that the purpose of REJ's first amended petition was to change the cause of action from one seeking relief as to the ordinance to one seeking enforcement of remedial portions of the sunshine law. It asserts that, at the time REJ sought to amend its petition to seek remedies under the sunshine law, those remedies already were barred by the statute of limitations. The city argues that, regardless of the statute of limitations problem, the court is not compelled to accept an amended petition once responsive pleadings have been filed, as they were here. The city further responds that, if this Court were to find that an abuse of discretion occurred, the case only can be remanded for a limited trial on the issue of the alleged sunshine law violations and whether attorneys' fees are warranted. It contends that, in such a case, the maximum civil penalty that could be imposed against the city is $500 and that, because no individual city council members or other city officials are parties to this case, the court on remand could not impose a civil fine or attorneys' fees against them individually.

SC85578
L. Joseph Garr, III, et al. v. Countrywide Home Loans, Inc.
St. Louis County
Challenge to mortgage company's release of deed of trust

In March 2002, Joseph and Marianne Garr signed a $165,000 promissory note in favor of Mortgage Resources, Inc., that was secured by a deed of trust on the Garrs' residence in Des Peres, Missouri. Sometime before August 2002, Mortgage Resources assigned its interest in the promissory note and deed of trust to Countrywide Home Loans, Inc., a mortgage lender based in Calabasas, California. In August 2002, the Garrs refinanced their home with another mortgage lender, Matrix Financial. Countrywide received full payment on the promissory note six days later, on August 8, 2002. That day, Joseph Garr sent Countrywide a letter in which he demanded immediate release of the deed of trust. He enclosed a check to cover the costs of filing and recording the deed of release and asked for evidence that the deed of trust had been released. Countrywide subsequently executed a deed of release, sent it to the St. Louis County recorder of deeds for recording and returned Joseph Garr's check to him. It was recorded August 26, 2002. On September 3, 2002, Joseph Garr sent Countrywide another letter in which he identified himself as an attorney and in which he said he and his wife were seeking damages against Countrywide for its "flagrant violation" of section 443.130, RSMo. The letter demanded that Countrywide pay the Garrs $16,500 and deliver a sufficient deed of release within 10 days of the date of the letter. Nine days later, Countrywide mailed to the Garrs a copy of the deed of release that already had been recorded. In November 2002, the Garrs sued Countrywide under section 443.130 to recover the statutory penalty of 10 percent of the promissory note that Countrywide held, or $16,500, plus prejudgment interest and reasonable attorneys' fees. In March 2003, the Garrs sought summary judgment, and the court entered its final judgment two months later. The court entered a $13,600 judgment in the Garrs' favor but denied their requests for prejudgment interest and attorneys' fees. In July 2003, pursuant to a motion the Garrs filed, the court amended its judgment to award $16,500 to the Garrs. Countrywide appeals, and the Garrs cross-appeal.

Countrywide argues the court erred in granting the Garrs judgment. It contends the August 2002 letter did not invoke section 443.130, RSMo, which it asserts is "highly penal" in nature and must be construed strictly. Countrywide argues the letter did not mention the statute and demanded that it take action not required by the statute. Countrywide contends that, even if the letter did invoke the statute, the Garrs failed to prove that Countrywide did not comply with it. It asserts that the Garrs did not present any evidence showing that Countrywide did not deliver a sufficient deed of release to Matrix Financial in a timely manner. Countrywide further argues that the statute, as applied by the court in this case, is unconstitutionally vague and violates due process because persons of common intelligence would have to guess at its meaning. In response to the Garrs' arguments, Countrywide argues that the Garrs failed to invoke section 443.130 because the statute does not require "immediate" action, recording or delivery of a deed of release to the mortgagor. It contends that the Garrs failed to prove Countrywide did not comply with the statute and that the Garrs are not entitled to prejudgment interest.

The Garrs respond that the court properly granted them judgment. They argue their demand letter was sufficient to invoke section 443.130 because it informed Countrywide with reasonable certainty that the Garrs were requesting a deed of release as contemplated by section 443.130 and it followed the statute's requirements. They contend that they made a request for a deed of release in the form of a demand letter, that they provided sufficient evidence that the debt secured by the deed of trust was satisfied with good funds, that they advanced with the demand letter the expense of filing and recording a release, and that they used certified mail, return receipt requested. The Garrs assert that, as mortgagors/borrowers, they clearly are considered to be persons making satisfaction as contemplated by the statute. They argue that Countrywide did not preserve this issue for appeal because it did not raise it in the court below as an affirmative defense, in its dispositive motion or in its answers to written discovery. The Garrs further respond that section 443.130 is not unconstitutional because a person of common intelligence would not need to guess at its meaning. In their cross-appeal, the Garrs argue the court should have prejudgment interest because section 443.130 provides that a creditor "shall" be allowed to receive interest at the rate of 9 percent per year for all monies after they become due and payable. They contend the money at issue here became payable after Countrywide ignored the demand letter and failed to comply with the terms of the statute.

SC85696
Missouri Coalition for the Environment, et al. v. Thomas A. Herrmann, et al.
St. Louis City
Challenge to wastewater permit; jurisdiction of clean water commission

In October 1999, a modified national pollutant discharge elimination system (NPDES) permit was issued to the United States Army allowing it to discharge wastewater into rivers and streams in or near Ft. Leonard Wood. The new permit modified one issued to the army in February 1995. The modified permit was modified again in April 2000. Both modified permits are signed by the director of the department of natural resource's division of environmental quality as well as by the director of staff for the state's clean water commission. Both of those directors are appointed by the department director and are subject to the direction and control of the department director. The commission staff director also is subject to the commission's direction and control, and the department director is subject to the procedural and substantive decisions of the commission. The Missouri Coalition for the Environment appealed the modified permits to the commission, which dismissed the appeal in September 2000 for lack of subject matter jurisdiction under Craven v. State of Missouri, ex rel., Premium Standard Farms, Inc., 19 S.W.3d 160 (Mo. App. 2000). The coalition subsequently sought judicial review in the circuit court, which also ordered the petition dismissed for lack of subject matter jurisdiction. The coalition appeals.

The coalition argues that the omnibus state reorganization act eliminated the position of executive secretary of the commission and transferred his authority and duties to the department director and that the department's implementing plan reinforced this transfer. The coalition contends, therefore, that the director had the authority to issue or deny the water discharge permit sought by Ft. Leonard Wood and that the commission had jurisdiction over the appeal pursuant to section 640.010.1, RSMo. The coalition notes that the appellate court in Craven was not aware of the relevant statutory provisions and departmental plan regarding the transfer of authority. The coalition asserts that, even if the director lacked statutory authority to issue such permits, he had de facto authority and the commission had jurisdiction over the appeal. The coalition further argues that, even if this Court were to follow Craven, it should vacate the outright dismissal of the appeal and remand with directions to the commission to vacate the allegedly unlawful permit.

The commission responds that it correctly followed the law dismissing the appeal pursuant to Craven. The commission notes that it issued the permit through its staff and that section 640.010.1 provides the statutory authority for an administrative review of any decision made by the department director. The commission argues it had jurisdiction over third-party appeals of Missouri state operating permits but contends it was bound nonetheless by the Craven opinion to the contrary. The commission asserts that the de facto authority doctrine does not apply here because no party in the case requires the protection afforded by the doctrine. The commission responds that the permit was lawful and that it should not be vacated.

Associated Industries of Missouri and the Regulatory Environmental Group for Missouri argue, as friends of the Court, that the commission properly dismissed the permit appeal for lack of subject matter jurisdiction. They contend that the state's clean water law, chapter 644, RSMo, does not give a third party the right of appeal over a state operating permit. They assert that the permits were issued to the army by the commission, not the department, and that, therefore, section 640.010.1 is inapplicable.

Premium Standard Farms, Inc., and Contigroup Companies, Inc., argue, as friends of the Court, that even if the department issued the permit, the commission properly dismissed the appeal because section 644.051.6, RSMo, limits permit appeal standing to the applicant, which the coalition was not. They contend that this section, which specifically defines the commission's jurisdiction, takes precedent over the more general language of section 640.010.1. They assert that section 644.051.6 also was enacted after section 640.010.1 and, therefore, qualifies, limits and takes precedence over the general appellate jurisdiction conferred by section 640.010.1. Premium Standard and Contigroup argue that State ex rel. Lake Lotawana Dev. Co. v. Mo. Dep't of Natural Res., 752 S.W.2d 497 (Mo. App. 1988), should not apply here because that case involved exhaustion of administrative remedies and did not address whether an "affected" third party had standing to appeal a permit to the commission. They contend that the commission promulgated its regulation in 10 CSR 20-6.020.6(D), which purports to grant permit appeal standing to third parties whose interest is or may be affected adversely, in excess of its authority and that the regulation, therefore, is void.