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Whats new in the law for the week

Administrative

Record Required for Review of Contested Case
Procedure before agency required a hearing with some degree of formality, so it was a contested case. Judicial review only rarely includes the admission of more evidence. "In the absence of [a] circuit court's determin[ation] that the [administrative] record [i]s incomplete, it should not . . . [even] schedule[] a hearing." On appeal of circuit court judgment to Court of Appeals, party aggrieved by agency decision is the appellant, just as it was in circuit court, because Court of Appeals reviews agency decision just like circuit court, and seldom addresses circuit court error. "Thus, we find ourselves now facing an appeal of the wrong decision (the circuit court's judgment) by the wrong party (the party that prevailed before the agency), and we have only a sparse and incomplete record for purposes of reviewing the [agency]'s decision, with no real challenge made to that decision." Remanded to circuit court to either review agency decision on the record or remand to agency for the making of a record.
Larry Johnston and Gloria Gay Johnston vs. Livingston County Commission
(Overview Summary)
Missouri Court of Appeals, Western District - WD78197 

Appellate

Denial of Quashal Not Final
The granting of a motion to quash garnishment is subject to appeal, but the denial is not, because denial of quashal of garnishment-unlike denial of motion for execution-leaves issues for determination. Rule requires circuit court to issue judgment determining all disputes raised by exceptions, and by responses to interrogatories. Dismissed for lack of final judgment and remanded to circuit court for judgment.
John Olsen, et al., Respondents, v. Global Biz Dimensions, LLC, and American Family Mutual Insurance Company, Appellant.
(Overview Summary)
Missouri Court of Appeal, Eastern District - ED102311 

Criminal

Too Late to Raise Mental Capacity Defenses
Statutes bar criminal proceedings against person without mental capacity to understand those proceedings, allow a defense in guilt phase for mental disease or defect, and allows mitigation in sentencing phase for mental impairment. Habeas corpus may prevent State from carrying out death sentence if offender lacks mental capacity to understand it. At trial, petitioner raised no mental health defense. In post-conviction relief, petitioner did not charge trial counsel with being ineffective for raising no defense of mental disease or defect in guilt phase. In federal habeas corpus action, district court found that a defense of mental illness would have been unsupported by evidence including petitioner's statements. Petition for writ of habeas corpus states no claim for relief if it raises only claims that petitioner raised or could have raised at trial or on direct appeal or on motion for post-conviction relief.
State ex rel. Richard Strong, Petitioner vs. Cindy Griffith, Warden, Potosi Correctional Center, Respondent.
(Overview Summary)
Missouri Supreme Court - SC95043 

Description of Deliberation Okay
Appellant did not show that pretrial identification was so unreliable that its prejudice outweighed its probity, and did not show that the process was unduly suggestive, so appellant did not show plain error in admitting that evidence. "The alleged deficiencies in the witnesses' testimony were issues that Defendant had the opportunity to address, and did in fact address, on cross-examination. Defendant fails to show that the identification evidence confused or misled the jury. The jury, as the fact-finder, was given the opportunity to determine the credibility and reliability of the identifications." Closing argument that described deliberation as a "conscious decision" was not plain error when argument emphasized statutory definition.
State of Missouri, Respondent, vs. TJ Russell, Appellant.
(Overview Summary) 

No Bias Shown
Despite ongoing "heated" judicial election between circuit judge and defense attorney, nothing in the record showed any disfavor to defense counsel or appellant during trial. To show prejudice from composition of jury, appellant must show that jury as composed was "not competent, qualified, and unbiased [.]" Circuit court did not plainly err in allowing prosecutor's comment related to credibility.
State of Missouri vs. Derron A. White
(Overview Summary)
Missouri Court of Appeals, Western District - WD76723   

Wrong Instructions
State charged appellant and co-defendant with trafficking methamphetamine, and evidence was insufficient to convict co-defendant. Nevertheless, verdict directors addressed non-methamphetamine trafficking and allowed a conviction for acting alone or with co-defendant. "We cannot presume on appeal that the jury would have found that [appellant] acted alone in committing the crime [.]" Appellant discharged.
State of Missouri vs. Luis Zetina-Torres
(Over view Summary)
Missouri Court of Appeals, Western District - WD77424 

Education

No Department Review for End of Charter School Sponsorship
Statutes provide that Department of Elementary and Secondary Education reviews a sponsor's revocation of charter school's sponsorship, but have no similar provision for the end of a sponsorship period without renewal of sponsorship. "[T]he legislature did not intend to commit sponsors and charter schools to a charter for more than a minimum period of five years, absent specific intent of the parties expressed within the charter." Neither Department nor its Board have any authority over non-renewal of sponsorship.
Hope Academy Corp. vs. The Missouri State Board of Education
(Overview Summary)
Missouri Court of Appeals, Western District - WD77709 

Elections

Time Bars Contests
Statutes providing exclusive means for anyone-other than the Missouri Attorney General-to challenge a right to office include time limits for filing actions. Under exception for facts arising after that deadline extend the deadline, facts cited occurred before the deadline, so appellant met neither deadline nor extended deadline. Circuit court correctly ruled that it lacked authority to rule on appellant's challenge. Ruling that relied on stipulated facts outside the pleadings and determined the merits of the action was not a judgment on the pleadings and did not result in dismissal. Judgment not determining credibility is subject to de novo review on the whole record. Failure to challenge any one basis for judgment requires affirmance of judgment if that basis supports judgment. Failure to raise an argument in circuit court waives that argument in Court of Appeals.
Clay Chastain and Vincent Lee vs. Sylvester James, Et Al
(Overview Summary)
Missouri Court of Appeals, Western District - WD78633 

Initiative Challenge Unripe
Test for ripeness prevents advisory opinions so court raises it even when parties do not. Challenge to initiative, based on Missouri constitution's multiple-subjects provision, is not ripe until "the Secretary of State makes a decision to submit, or refuse to submit, an initiative issue to the voters." Grounds for barring initiative from ballot do not include constitutionality of initiative provisions unless "so obvious as to constitute a matter of form" and, even then, such review is unripe before the Secretary of State makes a decision to submit the issue to the voters.
Laura Reeves vs. Jason Kander and John Watson and Returning Government to the People and Todd S. Jones
(Over view Summary)
Missouri Court of Appeals, Western District - WD78559 

Motivation Irrelevent to Ballot Summary
Statutes provide that sponsors of referendum may draft a summary for the ballot, so the Secretary of State, who did not take any part in the assembly of an initiative one way or the other, may fortiori draft a summary of the initiative for the ballot. The standard by which the courts review the ballot summary for the initiative is whether the summary is complete and unbiased. As to whether the summary is complete and unbiased, the Secretary of State's opinion on the initiative itself is irrelevant and not likely to lead to the discovery of admissible evidence. Therefore, discovery of the Secretary of State's opinion on the initiative. Writ of prohibition issues to prevent enforcement of discovery on that matter.
State of Missouri ex rel Jason Kander, Missouri Secretary of State vs. The Honorable Daniel R. Green, Circuit Judge
(Overview Summary)
Missouri Court of Appeals, Western District - WD78471 

Family

Findings Required for Custody Award
In action for dissolution of marriage, statute requires circuit court to make findings of fact under factors that apply to record. Those findings were absent from judgment and amended judgment. Appellant cited their absence in after-trial motion. Reversed and remanded to make findings as required by statute.
JOHANNA JETT, Petitioner/Respondent vs. FRANK JETT, Respondent/Appellant
Missouri Court of Appeals, Southern District - SD33519 

Post-Conviction

No Meritless Claim Required of Appellate Counsel
To show that circuit court imposed a greater sentence on defendant as retaliation for defendant going to trial, defendant must show that exercise of right was determinative in sentencing. Motion made no such allegation, so circuit court did not err in denying motion without hearing. Appellate counsel need not make a meritless claim. Imposition of sentence longer than expected does not prove retaliation by court for movant's decision to go to trial, nor did any evidence in the record, so a challenge to conviction on that basis would have been meritless.
Harold Morse, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101919 

Record Refutes Allegations
No hearing is necessary before denying motion if record refutes allegations of motion. Motion alleged that trial counsel was ineffective for failing to share with movant a videotaped interview with victim, rendering movant's guilty plea involuntary. Record shows that movant knew about the videotaped interview when he entered his guilty plea and thus refutes motion's allegations.
Leonard James, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101425 

Failure to Present Statement Is Not Abandonment
Rule allows a statement in lieu of an amended motion, and post-conviction counsel filed such motion, so post-conviction counsel did not abandon appellant. Rule also requires presentment of statement to appellant first, but appellant showed no prejudice. Appellant did not show that circuit court clearly erred in finding that post-conviction counsel did not abandon appellant.
James Leon Scott vs. State of Missouri
(Over view Summary)
Missouri Court of Appeals, Western District - WD77555 

Record Refuted Allegations
Motion is subject to denial without hearing if record refutes allegations. Allegations necessary to support movant's claim, that counsel's assistance was ineffective for failure to call witness, include that witness was available and would have testified. Those allegations were refuted in movant's own pre-trial statements in support of pre-trial motions.
ROBERT DAVID NELSON, Movant-Appellant vs. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD33483 

Tax

No Taxpayer Standing to Challenge Collection of Taxes
Requirements of circuit court authority include the standing-a legally protected interest subject to direct adverse effect-of the party bringing the action, without which, circuit court must dismiss. Status as taxpayer may confer standing but only if facts alleged in petition describe taxpayer standing. Appellants alleged no such facts in challenging assessments made or not made of other taxpayers. Administration of tax law involves discretionary decisions and is not subject to mandamus. Deficiencies in appellants' brief do not require dismissal.
Tony Bethman, et al., Appellants, vs. Sally A. Faith, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101896
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