Other Areas of Law

Rex P. Fennessey, Esquire

Alford plea to sex offense followed by suspended imposition of sentence qualifies as “conviction” under federal Sex Offender Registration and Notification Act, which provides independent registration requirement for sex offenders. John Doe v. Colonel Keathley, No. 72121 (Mo. App. W.D., April 26, 2011), Ahuja, C.J.

John Doe entered an Alford plea to sex abuse in the first degree, was given a suspended imposition of sentence and placed on probation. Doe registered as a sex offender upon the passage of Missouri’s Sex Offender Registration Act (“SORA”), Sections 589.400 to 589.425, RSMo. Following the Missouri Supreme Court’s decision in Doe v. Phillips, 194 S.W.3d 833, 852 (Mo. banc 2006) - which found SORA’s registration requirement violative of the Missouri Constitution’s prohibition against “retrospective laws” when applied to offenders convicted before its enactment - Doe filed a petition seeking  to be free of SORA’s registration requirements. Col. Keathley conceded that SORA did not require Doe to register, but argued that the federal Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. Sections 16901-16929, independently required registration. SORNA defines “sex offender” as an “individual who was convicted of a sex offense.”  SORNA does not define “convicted” or indicate whether state or federal law should determine whether an individual has been “convicted.” The trial court found that, under Missouri law, Doe’s Alford plea did not constitute a conviction under SORNA. Col. Keathley appealed.

 Reversed. The Western District held that federal, not state law, controls whether an individual has been “convicted” for purposes of SORNA, reasoning that, absent statutory language to the contrary, federal statutes are intended to be uniform nationwide; and that conflicting state interpretations of “convicted” would defeat this goal. The court then turned to the question of whether Doe’s Alford plea, which was followed by a SIS and probation was a “conviction” under federal law. Interpreting federal decisions which indicate that a guilty plea standing alone is a “conviction,” it determined that Doe’s plea constituted a “conviction” for purposes of SORNA.

Stayed contempt orders become final for purposes of appeal when (1) the contemnor is actually incarcerated, or (2) a court takes evidence to determine whether the contemnor has purged the contempt. Lack of evidence in the record of knowing, voluntary, intelligent waiver of counsel by contemnor facing incarceration requires reversal. Carothers v. Carothers, No. 91160 (Mo. banc May 17, 2011), Wolff, J.

Following dissolution of their marriage, Pamela and Dennie Carothers split custody of their three children. Pamela failed to make support payments to Dennie as ordered, and Dennie filed a motion for contempt. On January 12, 2010, the circuit court held a hearing on the contempt motion. Pamela appeared pro se. The Court entered a judgment of contempt and ordered Pamela to be incarcerated until the contempt was purged, but stayed its order until January 25, 2010 to permit Pamela an opportunity to purge the contempt. The warrant of commitment was not issued until February 1, 2010, and was not served on Pamela. On February 11, 2011, Pamela’s newly retained counsel filed a notice of appeal of the January 12 judgment; which was dismissed.

Pamela and Dennie (both represented) appeared before the circuit court again on March 31, 2010. Pamela was served with the warrant of commitment and was taken into custody. On April 6, 2010, Pamela’s counsel filed another notice of appeal. The appeal was dismissed as untimely. The Supreme Court granted transfer.

 Reversed and remanded. The Supreme Court first considered the timeliness of Pamela’s appeal. A civil contempt order is appealable once it is “final.”  An order is not final until it is “enforced.”  The Court stated that, ordinarily, an order of contempt that has been stayed has not been “enforced” and is therefore not final for appeal purposes. However, the Court adopted the Western District’s opinion in Emmons v. Emmons, 310 S.W.3d 718 (Mo. App. 2010), and held that stayed contempt orders were final for appeal purposes when (1) the contemnor is actually incarcerated on the stayed warrant of commitment, or (2) the trial court takes evidence to determine whether contempt has been purged and then reissues a warrant of commitment. Under this reasoning, the Court held that the trial court’s contempt order became final for appeal purposes on March 31, 2010 when Pamela was incarcerated. Thus Pamela’s April 6, 2010 appeal was timely.

The Court then turned to the question of whether Pamela was properly advised of her right to counsel at the contempt proceedings. Finding a lack of evidence in the record to support a knowing, voluntary and intelligent waiver of such right by Pamela, it found the circuit court erred in not advising Pamela of her right to counsel; and therefore reversed the contempt judgment.

: Judge Fischer filed a concurring opinion which expressed concern that the Court’s opinion would continue to create confusion concerning when a civil contempt judgment has been enforced. He favored adoption of the traditional rule: that civil contempt judgments be considered enforced – and therefore final and appealable – when the contemnor is actually incarcerated.

Clients have a fundamental right to freely choose their counsel. Missouri follows the “modern rule” which holds that discharged attorneys are not permitted to recover under the previous contingent fee contract, but only the reasonable value of services provided. Once the firm’s contingent fee contract is terminated by the client by entering into a subsequent contingent-fee contract with another law firm, the only asset of the dissolved law firm is its right to recover the reasonable value of the services it rendered. Welman, et al. v. Parker, No. 30016 (Mo. App. S.D., November 19, 2010), Lynch, P.J.

Cameron Parker was a partner at the law firm of Welman, Hively, Godley & Parker L.L.P. The firm had no written partnership agreement. While a partner, Parker represented Charles Yates in a pending personal injury action under a contingent-fee contract. Parker was the primary attorney on Yates’ case. Parker eventually withdrew from the Welman firm. Parker and the firm’s partners reached no agreement as to the dissolution of the partnership. Parker sent Yates a letter asking whether he desired to stay with the Welman firm or to continue to have Parker represent him. Yates chose Parker, and signed a contingent-fee contract with Parker’s new firm. Yates’ personal injury case was settled, and Parker and her new firm received a contingent fee from the settlement proceeds. The remaining Welman firm partners filed suit seeking an accounting, wind-up and termination of their partnership. The trial court declared that the full contingent fee Parker received from the Yates settlement belonged to the Welman partnership; and ordered Parker to pay her former partners their portion of the proceeds. Parker appealed.

Held: Reversed and remanded
. The sole issue on appeal was who, as between a withdrawing partner and the former partners, is entitled to the contingent fee from a matter that was pending at the time of the dissolution of the law firm handling it. Addressing this issue of first impression, the Southern District held that once the firm’s contingent fee contract is terminated by the client by entering into a subsequent contingent-fee contract with another law firm, the only asset of the dissolved law firm is its right to recover the reasonable value of its services rendered. First, it noted that the Missouri Supreme Court has discarded the “contract rule” – which treated contingent fee agreements as employment contracts – in favor of the “modern rule”, which holds that a discharged attorney cannot recover under the contingent fee agreement, but is limited to recovery of the reasonable value of his services on a quantum meruit theory. Second, it discussed the Supreme Court’s holding that clients are the “possession” of any partner or attorney, that clients are free to choose whomsoever they wish to represent them, and that a client’s new attorney and former attorney(s) have a mutual obligation to cooperate in handling the clients’ case at the clients direction. The Southern District held that the Welman firm’s former partners were only entitled to recovery of the “reasonable value of the services” they provided Yates.

Statutory change to Chapter 455 (orders of protection) permits appellate adjudication of otherwise expired full orders of protection if person subject to order can demonstrate. Schroeder v. Hunn, No. 94730 (Mo. App. E.D., May 3, 2011), Cohen, J.

Debra Schroeder filed and obtained an ex parte order of protection under the Child Protection Orders Act, Sections 455.510-520, RSMo, against Andrew Hunn on behalf of her daughter. Hunn appealed.

Held: Appeal dismissed as moot.
Because the order of protection had expired prior to submission of the case, the Eastern District dismissed the matter as moot. The court rejected Hunn’s argument that his ability to possess a firearm under 18 U.S.C. Section 922 constituted a “collateral consequence” justifying adjudication despite mootness because it found this statute only prohibited possession for an individual who is currently subject to a protective order; which Hunn was not.

Note: House Bill 111 inserted Section 455.007, RSMo, into the Chapter 455. The addition states that “the public interest exception to the mootness doctrine shall apply to an appeal of a full order of protection which (1) has expired; and (2) subjects the person against whom the order is issued to significant collateral consequences by the mere existence of such full order of protection after its expiration.”  Counsel representing a client against whom a full order of protection is sought or has been obtained should consider what evidence to present which could demonstrate that “significant collateral consequences” would exist after expiration of the protective order. Although authority exists for appellate courts to consider facts outside the record what mootness is involved – Precision Investments, L.L.C. v. Cornerstone Propane, L.P., 220 S.W.3d 301, 304 (Mo. banc 2007) – prudent counsel should introduce evidence of “significant collateral consequences” at the trial court until appellate courts make clear that such evidence can be introduced for the first time on appeal.

Arguments not made before a trial court cannot be raised on appeal; so intervenors cannot move to intervene and submit argument related to underlying action after final judgment. Chasnoff v. Board of Police Commissioners, et al., Nos. 95050 & 95204 (Mo. App. E.D., May 3, 2011), Crane, J.

John Chasnoff filed an action under the “Sunshine Law” (Sections 610.010, et seq.) for an injunction requiring the St. Louis Board of Police Commissioners (“the Board”) to disclose to him, inter alia, citizen complaints about and the Board’s Internal Affairs Division (“IAD”) investigation file into alleged improper use of confiscated 2006 St. Louis Cardinals World Series tickets.

Following cross-motions for summary judgment, post-summary judgment motions, and multiple evidentiary hearings and judgments, the trial court ordered the Board to disclose its IAD full investigative report of the incident and thereafter awarded Chasnoff attorney’s fees; thus disposing of all remaining claims of all parties to the suit. The Board did not appeal.

Approximately eighteen days later, Wendell Ishmon, Thomas Kranz, Phillip Menendez, Joseph Somogye and thirty “John Does” (“Intervenors”) filed a motion and affidavits in the trial court to intervene for the sole purpose of appealing the judgment, alleging that the Board had not adequately represented their “interest  relating to the property which [wa]s the subject” of the action. The trial court granted Intervenors’ motion to intervene for purposes of appeal. Thereafter, following an in camera review the documents at issue, the trial court entered an order staying the disclosure to Chasnoff of numerous items identified in a log. Chasnoff and Intervenors filed cross-appeals; the Board did not appeal.

Held: Reversed in part; cross-appeal dismissed; stay ordered continued.
First, the court found no justiciable controversy remained between Chasnoff and the Board because Chasnoff’s sole point on appeal was that Intervenors should not have been permitted to intervene, and the Board had chosen not to appeal the underlying judgments. Second, it held that Section 610.021, RSMo, “authorizes” but does not require public governmental bodies to close records relating to employment decisions and the “personal information” and personnel records of employees involved in such decisions. Thus, there existed no authority for the court (trial or appellate) to have required the Board to maintain the records as closed. The court found that an action to keep such records closed would necessarily be against the Board – not Chasnoff - and the Board was not a party to the appeal.

The Eastern District concluded that, “[a]gainst this background,” Intervenors could not raise issues (i.e. – their arguments and evidence for why the records should not be disclosed) in the appellate court that were not raised in the trial court; who never heard them. The trial court’s judgment permitting intervention was reversed and Intervenors’ cross-appeal was dismissed. However, the Eastern District did not foreclose the possibility of an action by Intervenors against the Board; and the ordered the trial court’s stay to remain in effect.

Municipality is “employer” of municipal judge for purposes of Missouri Human Rights Act when it (1) requires full-time work, (2) pays a regular fixed salary, (3) furnishes supplies and a workspace, (4) is able to remove the judge under certain circumstances, (5) has designated judges “employees” on City’s forms and benefit and tax documents, and (6) treats municipal judges as other employees for benefit and tax purposes. Municipalities are subject to punitive damages under the MHRA. Howard v. City of Kansas City, No. 90762 (Mo. banc January 25, 2011), Fischer, J.

Kansas City’s charter establishes a five-member nominating commission which submits a panel of three qualified applicants as nominees for municipal judicial vacancies to the city council; which fills the vacancy by appointing one of the panelists by majority vote. From the applicants for an open municipal judge position, the nominating commission chose three Caucasian women, one of whom was Melissa Howard. At council meetings discussing the panelists, several panel members made comments lamenting the lack of racial diversity among the panelists. The council failed to appoint any of the proposed panel members on two separate occasions.

Melissa Howard filed suit against the City under the Missouri Human Rights Act alleging racial discrimination in employment. The City argued, both before and during trial, that Howard was not an “employee” for purposes of the MHRA. Over the City’s objection, the jury was instructed on punitive damages. After a jury verdict for Howard, which included a punitive damage award, the City appealed.

Held: Affirmed.
The Court held that Howard was an “employee” for purposes of the MHRA. Finding no definition of the term in the MHRA itself, the Court turned to the (Webster) dictionary definition of an “employee” as “one employed by another, usually in a position below the executive level and usually for wages and who is not excluded by agreement from consideration as such a worker.”  It also noted that to “employ” is to “provide with a job that pays wages or a salary or with means of earning a living.”  In light of these definitions, the Court held that Howard was – or would have been – an employee of the City; thus an MHRA claim against the City for employment discrimination could be maintained. Distinguishing cases involving independent contractors and conflicting authority from other states, the Court found the following factors persuasive in reaching its conclusion: (1) the City’s municipal judges are employed on a full-time basis, (2) earn a regular fixed salary, (3) are furnished supplies and a workspace by the City, (4) are required to follow the law, (5) are subject to removal under certain circumstances, (6) have been designated “employees” on forms the City produces and requires them to sign upon appointment and in subsequent benefit and tax documents, and (7) the City in-fact treated municipal judges as other employees for, among other things, benefit and tax purposes.

The Court rejected the the City’s argument that punitive damages are not available against municipalities and finding that the plain language of the MHRA provides for such liability - thereby resolving the conflict of opinion on the matter between the Missouri Courts of Appeals and federal district and appellate courts.

Dissent in part (Price, W)
: Judge Price dissented from the portion of the opinion that permitted an award of punitive damages against the City on the basis that no statute specifically authorized such recovery against municipalities.

Note:  This summary omits discussion of evidentiary and instructional issues decided by the Court.