Courts Bulletin - 5-Aug
The latest court decisions are summarized each month in the Courts Bulletin. This publication keeps Missouri Bar members current with rulings in selected areas of the law. Selected federal court opinion summaries, new or amended rules of court and other matters of interest to practitioners are also included from time to time. A panel of volunteer lawyers, all authorities in their respective subject areas, prepare the case summaries.

In this Issue

Administrative Hearing Commission When the Supervisor of Alcohol and Tobacco Control charges a licensee with a violation of law, where the alcohol content of a beverage is an element of the violation and the supervisor has the burden of proof, the supervisor must prove the alcohol content of the beverage. [Eva P. Deal, d/b/a Spendthrift Grocery & Deli v. Supervisor of Liquor Control], No. 04-1357 LC (May 23, 2005), Doughty, J. Full Summary and Other Cases

Administrative/Constitutional Law Animal abuse law is not void for vagueness and does not violate equal protection. [State ex rel. State ex rel. William A. Zobel, Relator, v. The Honorable Don E. Burrell, Judge of The Circuit Court of Greene County, Missouri, et al., Respondents], No. 86813 (Mo. banc, July 12, 2005), Teitelman, J. Full Summary and Other Cases

Criminal Law Defendant could not be charged with kidnapping by interfering with the performance of a governmental function by taking children who were in the temporary care and custody of the Division of Family Services. [Steven M. Spier, Movant/Appellant, v. State of Missouri, Respondent], No. 85136 (Mo. App. E.D., July 19, 2005), Mooney, J. Full Summary and Other Cases

Elder Law {New Medicaid Law, Effective August 28, 2005.} Senate Bill 539 ("the act") will become effective on August 28, 2005. This act modifies various provisions of the current Medicaid program, the Missouri Senior Rx program and personal care assistance programs. Full Summary and Other Cases

Employee Benefits Substantive due process is not violated by using a prisoner's disability/retirement pension benefits to reimburse the state for the prisoner's cost of care. [State ex rel. Jeremiah W. Nixon, Attorney General, State of Missouri, Respondent, v. James A. Powell, Appellant], No. 86453 (Mo. banc, July 12, 2005), Per Curiam. Full Summary and Other Cases

Environmental & Energy Law Aquila, Inc. appealed the judgment of Cass County Circuit Court permanently enjoining it from constructing and operating an electrical power plant and transmission substation in an agricultural district located in unincorporated Cass County. [StopAquila.Org, et al.; Plaintiff, Cass County, Missouri, Respondent, v. Aquila, Inc., Appellant], No. 64985 (Mo. App. W.D., June 21, 2005), Newton, P. J. Full Summary and Other Cases

Family Law No authority to modify out of state custody judgment until original state declines jurisdiction. [State of Missouri, ex rel., Victoria Ferrara, Relator, v. The Honorable Mark Neill, Circuit Court of the City of St. Louis, Respondent], No. 85845 (Mo. App. E.D., June 28, 2005), Draper, J. Full Summary and Other Cases

Insurance Law Fellow employee exclusion held ambiguous and therefore inapplicable to wrongful death claim. [Joyce Reese, Teresa Reese, and April Reese-Imbrogno, Respondents v. United States Fire Insurance Company, Appellant, Charles Mizer, Defendant], No. 63555 (Mo. App. W.D., June 30, 2005), Per Curiam. Full Summary and Other Cases

Juvenile Law (1) Where father sexually abused daughter and granddaughter over a period of years and mother failed to protect, and where a division investigator observed at least one safety plan violation, juvenile court jurisdiction under  211.031.1 is properly invoked. (2) Where trial court fails to make all of the "reasonable efforts" findings under  211.183, the case would be remanded for specific findings. [In the Interest of: G.F.M., D.J.M., C.M.M. and J.M.M.; Juvenile Officer; Missouri Children's Division, Respondent v. F.M. (Mother/Grandmother), Appellant, P.J. (Father/Grandfather), Defendant; J.B. (Father), Defendant; and T.S. (Mother), Respondent], No. 64536, 64537 and 64538 (Mo. App. W.D., August 2, 2005), Lowenstein, J. Full Summary and Other Cases

Labor Law - Federal The Eighth Circuit holds the "similarly situated employee" standard differs at the prima facie stage of the McDonnell Douglas burden-shifting framework. [Rodgers v. U.S. Bank], 04-3000 (8th Cir. August 5, 2005). Full Summary and Other Cases

Local Government Public policy favors arbitration and city's selection of an outside arbitrator qualifies as a "public body." [Forest G. Parker, Appellant v. City of St. Joseph, Missouri, Respondent], No. 64000 (Mo. App. W.D., June 28, 2005), Hardwick, J. Full Summary and Other Cases

Tort Law A release in a personal injury case may be modified or reformed by the parties. [Kimbra Lunceford and Christopher Lunceford, Appellants v. Michael C. Houghtlin, Respondent, and Glynn W. Graybill, Respondent], No. 64017 (Mo. App. W.D., May 31, 2005), Holliger, J. Full Summary and Other Cases

Other Areas of Law Court has no equitable powers to expunge criminal record of youthful offender. Expungement is controlled by statute,  610.122, and former offender here did not meet the conditions for expungement. [In re: The matter of Scott Dyer], No. 86236 (Mo. banc, May 31, 2005), Wolff, J. Full Summary and Other Cases