House Bill 566 rolled through the legislature in 1993 like a snowball rolling down a hill covered with wet snow. It grew with each turn to such an extent that when it reached the end, the original core was surrounded by layer upon layer of accretion. When originally introduced, H.B. 566 proposed repeal of 12 statutory sections "relating to economic development" and proposed enactment of 17 new sections in lieu thereof. But when finally passed as Conference Committee Substitute for Senate Committee Substitute for House Committee Substitute for House Bill 566, the bill repealed 88 statutory sections and enacted 102 new sections which amended laws in 25 statutory chapters.
One of the accretions to H.B. 566 was an amendment to §267.610 which changed the basis for compensation due livestock owners when the state destroys their livestock to protect other livestock from disease. After 46 elk from the herd at Carmack Elk Farm in Howard County were destroyed on the state veterinarian's order, Mr. Carmack was dissatisfied with the new compensation formula created by H.B. 566, preferring instead the old version of §267.610, which based indemnification on the actual value of the animals destroyed. To achieve his preference, Mr. Carmack claimed in his suit against the Director of Agriculture that the 1993 amendment to §267.610 under H.B. 566 violated the "one subject" provision of article III, section 23 of the Missouri Constitution. In Carmack v. Missouri Department of Agriculture, No.79644 (Mo. banc May 27, 1997), the Supreme Court agreed with this argument. The pertinent part of section 23 imposes two distinct limitations on procedures by which the general assembly may pass legislation: 1) a bill cannot contain more than "one subject" and 2) the subject of the bill "shall be clearly expressed in its title." Mr. Carmack did not argue that H.B. 566 contained a "clear title" violation. His sole challenge was the claim of a "one subject" violation.
The state argued that any activity that promoted or protected an important sector of the Missouri economy could be grouped into one bill dealing with "economic development." The Court found the state's argument too broad. Article IV, section 36(a) of the Missouri Constitution placed the administration of all "economic development" programs under the Department of Economic Development. The Court concluded that programs administered by any other department were not economic development programs within the meaning of the Constitution. To the extent H.B. 566 amended or adopted laws administered by other executive departments, the bill contained more than one subject. The livestock disease control program is administered by the Department of Agriculture, so the change in the compensation formula was void because it was outside the "one subject" of H.B. 566. The amendment to §267.610 was severed from the unchallenged portions of H.B. 566.
Mr. Carmack achieved the result he sought without challenging other parts of H.B. 566 which were arguably outside the core subject as well. Does the Carmack decision cast a cloud over numerous other statutory amendments purportedly made by H.B. 566, not to mention even more numerous statutory amendments purportedly made by similar bills which have been used near the end of legislative sessions as vehicles for statutory amendments on subjects outside the "one subject" of the original bill? The final cost of atonement for the slaughter of the Carmack elk may not be known for some time.
Court upholds splitting punitive damages with state.
Fust v. Attorney General, No. 79416 (Mo. banc June 17, 1997), was a declaratory judgment action to have §537.675 declared unconstitutional. That section provides that 50% of any punitive damage judgment is deemed rendered in favor of the State of Missouri. One attack was that the enacting law, H.B. 700, contained more than "one subject" in violation of article III, section 23, Missouri Constitution. The Court found that all of H.B. 700, including the challenged provision concerning punitive damages, related to the same subject, which was to promote compensation for certain tort victims. The Court also rejected the "clear title" challenge, based on the argument that the words "punitive damages" and "tort" did not appear in the title of H.B. 700 and that the words "just compensation" were too restrictive to permit any particular provision touching on punitive damages for tort. Mere generality of title will not prevent an act from being valid unless it is so obscure or amorphous as to tend to cover up the contents of the act.
The Court also turned away other constitutional challenges, one of which was the contention that §537.675.2 unconstitutionally discriminates against plaintiffs whose actions are heard in state court, because the federal courts are not requiring payment to the State of Missouri of 50% of punitive damage awards. The Court stated that, by its terms, §537.675.2 does not discriminate between state and federal litigants and that it applies to all final judgments awarding punitive damages. The Court distinguished the case of Finley v. Empiregas, Inc., 28 F.3d 782 (8th Cir. 1994) which was cited by appellants for the proposition that plaintiffs who are awarded punitive damages under Missouri law by a federal court judgment may keep the entirety of any punitive damage award. The Supreme Court observed that the Eighth Circuit only determined that § 537.675.3 prohibited the State of Missouri from prevailing on a motion under Federal Rule of Civil Procedure 69 to disburse a portion of a federal punitive damage award to the state. The Court further observed that the Eighth Circuit did not hold that the state's claim under the statute was wholly unenforceable.
Instructing down in a criminal case.
In State v. Santillan, No. 79607 (Mo. banc June, 1997), appellant appealed from his conviction for first degree murder, complaining that the trial court erred in refusing to submit a murder in the second degree instruction. The Supreme Court agreed and reversed and remanded for new trial.
The state relied on State v. Olsen, 636 S.W.2d 318 (Mo. banc 1982), and State v. Chambers, 884 S.W.2d 113 (Mo.App. W.D. 1994), for the proposition that instructing down is limited to those instances where there is some affirmative evidence of a lack of an essential element of the higher offense. In this case, deliberation was an essential element of first degree murder. Although defendant did not put on any affirmative evidence of a lack of deliberation, the jury could have concluded from the evidence presented that the defendant did not deliberate. Because of this, the trial court should have instructed down. To the extent that Olsen and Chambers may be read to require a defendant to put on affirmative evidence as to the lack of an essential element of the higher offense, they are overruled. If there is any doubt upon the evidence, the trial court should resolve any doubts in favor of instructing on the lower degree of the crime, leaving it to the jury to decide which of two or more grades of an offense, if any, the defendant is guilty.
Federal protection of quality assurance committee records.
The issue in State of Missouri ex rel. Boone Retirement Center, Inc. v. Hamilton, No. 79728 (Mo. banc June 17, 1997) was whether federal statutes prohibiting states from requiring disclosure of quality assurance committee records for nursing homes prohibited a state grand jury from requiring disclosure of such records. The case arose from an investigation initiated by the Attorney General of Missouri to determine whether the residents of Boone Retirement Center were the victims of criminal neglect. In furtherance of that investigation, the Attorney General issued a criminal subpoena seeking production of certain records of the nursing home's quality assurance committee. The nursing home refused to provide the documents subpoenaed by the Attorney General, claiming that they were privileged pursuant to 42 U.S.C. section 1395i-3 and 42. U.S.C. secton 1396r. A special prosecutor later obtained a subpoena duces tecum from a Boone County grand jury directed to the nursing home to require production of all quality assurance records for an identified period of time. The nursing home filed a motion to quash the subpoena. The trial court heard arguments on the motion and overruled it. On application of the nursing home, the Supreme Court prohibited enforcement of the subpoena.
The Court noted that the case was one of first impression. No federal court has interpreted the statutes at issue. Respondent argued that the word "State" used in the federal statutes limited application of the statutes to state agencies that have oversight responsibilities over nursing homes, and that state grand juries did not fall within the meaning of "State" as used in the statutes. The Court rejected this argument. The statutory definitions adopted by Congress of the word "State" do not limit the word's meaning to a designated state agency. Congress intended to include within "State" the whole of the functional, legal entity organized to act as a government within a territory of land recognized by the federal government for that purpose. Therefore, the privileges erected by the federal statutes prohibit a state grand jury from commanding disclosure of records of quality assurance committees formed pursuant to those statutes. However, the Court also made it clear that the statutory privilege is exceedingly narrow. It protects the committee's own records, such as its minutes or internal working papers or statements of conclusions, but does not extend any privilege to the records and materials generated or created outside the committee and submitted to the committee for its review.
Holder of contingent remainder is entitled to notice of foreclosure.
Williams v. Kimes, No. 79362 (Mo. banc June 17, 1997) held that the holder of a recorded contingent remainder is an "owner" entitled to notice of a power of foreclosure under §443.325.3. The suit was brought by the heirs of one Reba Wrather LaFont, who received a devise of 72 acres of real property from her mother under language in a will granting title to "Reba Wrather LaFont, and her bodily heirs, in fee simple." During probate of her mother's estate, the executor and Ms. LaFont borrowed money from a bank, mortgaging the 72 acres. The debt was not paid, and upon default the bank foreclosed on the 72 acres. The executor and LaFont both received a notice of trustee's sale by certified mail. The presumptive bodily heirs at the time, the children of Ms. LaFont, did not receive actual notice of the foreclosure sale. The Court held that the holders of the contingent remainder, Ms. LaFont's bodily heirs, had an interest capable of conveyance, and were thus "owners" entitled to actual notice under §443.325.3(2). Upon Ms. LaFont's death, they became the owners of the property, and respondents, who held title under a chain derived from the Trustee's Deed, were divested of their interest in the 72 acres by this suit.
Respondents raised a practical concern to the effect that notice to the known contingent remainder holders never assures that the eventual bodily heirs received notice, and that this uncertainty will chill lending and power of sale foreclosing. The Court observed that to the extent this concern is valid, the parties should consider judicial foreclosure.