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Updates in the law for the week

Criminal

Habeas Issues to Require Re-Sentencing with Parole Considered
United States Constitution requires a sentencing court to consider whether parole should ever be possible for a person under 18 years of age sentenced to life imprisonment. That requirement applies retroactively and supports collateral relief. Writ of habeas corpus issues to require re-sentencing that includes consideration of parole.
David Edwards, Petitioner, vs. Troy Steele, Superintendent, Eastern Reception, Diagnostic and Correctional Center, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED105946

Whats new in the law for the week

Administrative

No Contested Case Review for Non-Contested Case
Circuit court had no authority over decision under statutes addressing judicial review of a contested case because decision was not the result of a contested case. It was the result of non-contested case because the only pre-decision hearing required no formality and did not determine any legal right, duty, or obligation. "[N]ot every case requiring a hearing is a contested case." Remanded to circuit court to dismiss for failure to state a claim.
450 N. Lindbergh Legal Fund, LLC, et al., Appellants, vs. City of Creve Coeur, Missouri, et al., Respondents
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED102404

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 

Whats new in the law for the week

Appellate

Personal Vindication No Exception to Mootness
In juvenile action, circuit court's jurisdiction has "continuing jurisdiction during the adjudication and dispositional phases [but] only as long as the child is in the custody of the division." "In determining mootness, the appellate court may consider facts outside the record" like a ruling that undoes judgment appealed from. Judgment restored custody to appellant, which is the relief sought on appeal, and ended circuit court jurisdiction. Mootness requires dismissal, and facts supporting an exception render dismissal discretionary, and do not require appellate review. No exception exists for collateral consequences to a party. Personal vindication is not a matter of general importance, especially where the need for vindication is speculative.
In the Interest of: J.T.S.; Juvenile Officer vs. H.J.S. (Mother)
(Overview Summary)
Missouri Court of Appeals, Western District - WD77713

Whats new in the Law for the week

Administrative

Regulation Binds Agency
Rule published by agency binds agency that published rule. Agency published regulation that the elements of a claim to alter an existing permit, by constructing any water body, include the consent of certain landowners. Agency purported to grant claim for permit alteration to build new water impoundment structures without the required consent. Agency misapplied the law without applying that regulation.
FOWLER LAND COMPANY, INC., and MARGARET LEIST REVOCABLE TRUST, SANDY RUNNELS and LINDA HENDERSON, Trustees, Petitioners-Appellants vs. MISSOURI DEPARTMENT OF NATURAL RESOURCES, MISSOURI LAND RECLAMATION PROGRAM, ALTERNATE FUELS, INC., CONTINENTAL INSURANCE COMPANY, and CONTINENTAL CASUALTY COMPANY, Respondents-Respondents
Missouri Court of Appeals, Southern District - SD33166

What's new in Missouri Law for the week

Administrative

Attorney Fees Awarded in World Series Ticket Affair
Sunshine law allows, but does not require, agency to close records, and no law compels closure of records. No promise of secrecy, and no practice or custom, can trump Sunshine Law. Failure to disclose records, and sham consent judgment to close records ordered to be disclosed, supports an award of $100,000 in attorney fees against agency for knowing violation.
John Chasnoff, Plaintiff/Respondent, vs. Col. Joseph Mokwa, et al., Defendants/Appellants, Wendell Ishmon, et al., Plaintiffs/Appellants, vs. St. Louis Board of Police Commissioners, et al., Defendants, and John Chasnoff, Intervenor Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101748

What's new in Missouri Law for the week

ADR

Arbitrability Is for the Courts
"[P]arties may agree to arbitrate even 'gateway' questions of arbitrability, i.e., 'whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy [.]'" But "unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator." Of all related agreements, only one had an arbitration clause, and that clause did not describe the matter on which appellant demanded arbitration. Circuit court did not err in denying motion to compel arbitration.
50 Plus Pharmacy, et al vs. Choice Pharmacy Systems, LLC, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD77879

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