Constitutional Law

James D. Jenkins, Esquire

Section 116.175, which requires the state auditor to assess the fiscal impact of proposed ballot initiatives and prepare a fiscal note and summary does not violate Article IV of the Missouri Constitution. Brown v. Missouri Secretary of State Robin Carnahan, et al. No.92582 (Mo. banc, July 31, 2012), Per Curiam.

A number of lawsuits were filed challenging several initiatives seeking to place various issues before voters in the November 2012 election, including initiatives pertaining to tobacco taxation, payday loans, and the minimum wage. Each suit alleged that § 116.175, which requires the state auditor to “assess the fiscal impact of” any proposed initiative petition and prepare a fiscal note and fiscal note summary, violated Article 4, Section 13 of the Missouri Constitution, which provides that “[n]o duty shall be imposed on [the state auditor] by law which is not related to the supervising and auditing of the receipt and expenditure of public funds.”

Held: Constitutional.
The Court began by examining the language of Mo. Const. Art. 4, Sec. 13, which provides in relevant part that “The state auditor shall […] make all other audits and investigations required by law[...]” Although “investigation” is not defined, the Court found that preparation of fiscal notes and fiscal note summaries was an “investigation” under the plain meaning of that term. The Court next had to determine whether this “investigation” was “related to the supervising and auditing of the receipt and expenditure of public funds.” Initiative opponents contended that the auditor’s powers were limited to audits of past expenditures, not predictions of future ones. However, the Court found no time restrictions in the constitutional language and found that it was related to supervising the receipt and expenditure of public funds. Judge Fischer concurred in the result and filed a separate opinion, opining that the provision was unconstitutional insofar as it required that the fiscal note summaries appear on the ballot titles with the proposed initiatives. However, Judge Fischer believed that there was no bar to the petitions appearing on the ballot without these summaries.

Relators were entitled to a writ of prohibition against an order compelling their testimony at a judgment debtor examination where the immunity provided by § 513.380 did not provide immunity for their statements that was fully compatible with constitutional requirements. State of Missouri ex rel., et al. v. Hon. Joseph L. Walsh III, No. 92268 (Mo. banc, July 31, 2012), Stith, J.

An Arizona bank had obtained a judgment against the Nothums and had sought unsuccessfully to enforce the judgment in Missouri. Pursuant to § 513.380, the bank obtained an order compelling the Nothums to undergo a judgment debtor examination under oath in order to determine their ability and means to satisfy the judgment. At an examination before the circuit judge, the Nothums invoked their Sixth Amendment right against self-incrimination and refused to testify. Pursuant to § 513.380.2, RSMo, the county prosecutor granted the Nothums “use immunity” granting them immunity for any statement made at the judgment debtor examination. Because the grant of immunity did not include “derivative use immunity,” that is, immunity for any evidence directly or indirectly obtained as a result of the testimony, the Nothums continued to assert their self-incrimination privilege. The trial court ordered them jailed for civil contempt, and the Nothums brought their action in prohibition.

Permanent writ issued. In a 4-3 opinion, the majority found that the language of § 513.380.2 did not provide the prosecutor authority to grant derivative use immunity, and found, under U.S. Supreme Court precedents dating back to the 1970s, that limited use immunity in this case was not coextensive with the Sixth Amendment right against self-incrimination, and that since the Nothums had not been granted derivative use immunity, they could not be compelled to testify. The dissenters, led by Judge Fischer, would have held that the language of the statute was broad enough to permit a reading that would comport with Supreme Court jurisprudence, and further believed that an appeal of the civil contempt order, rather than a writ of prohibition, was the proper route to seek relief.

Constitutional right to speedy trial not denied where Defendant was unable to show any prejudice. State of Missouri v. Green, No. 31170 (Mo. App. S.D., August 13, 2012) Burrell, P. J.

The defendant promptly asserted his request for a speedy trial, but was not ultimately tried for 19 months following his arrest. At a bench trial, he was convicted and sentenced to six consecutive life terms. The defendant argued that four months of the delay were attributable to the prosecutor, that one month was due to the defendant’s request for a change of judge, and the remainder was owing to the trial court’s clogged docket.

Held: Affirmed.
The appellate court analyzed the defendant’s speedy trial claim under the factors in Barker v. Wingo, 407 U.S. 514 (1972). First, the court found that a 19 month delay was presumptively prejudicial, since Missouri courts have found that any delay exceeding 8 months is presumptively prejudicial. Second, the court found that the “reason for delay” factor weighed somewhat against the State, since the four month delay was the fault of the prosecutor’s office and the remainder was due to the Court’s overcrowded docket. Third, the court found that the defendant had timely asserted his right to a speedy trial. However, with regard to the fourth and most important factor, the court could not find any prejudice suffered by the defendant as a result of the delay. Previous case law had found prejudice where a delay had exceeded five years and, for example, witnesses were no longer available; however, there was no evidence in this case that the 19 month delay had caused prejudice to the defendant.