Missouri Dept Natural Resources defends its role in monitoring environmental status of State waterways; constantly changing Federal Regulations make effective State monitoring of water quality difficult Floyd Gilzow Deputy Dir. Missouri DNR; Ozark News Leader Federal law requires the state of Missouri to evaluate water quality in our streams every two years. The state must publish a list of streams needing attention due to pollution.The state must comply with EPA policy and federal requirements to ensure our water quality standards protect Missouri streams. Recently, the Missouri Coalition for the Environment sued the U.S. Environmental Protection Agency over Missouri's water quality standards. The settlement required the state to significantly expand water quality criteria on 16,000 stream miles to bring state standards in line with federal standards.The challenge for us has been coordinating the timing of state rulemaking procedures with continuous changes in federal requirements. Missouri statutes (Sec.644.011 RS Mo) require the impaired waters list to be published as a state rule, a process that can take more than 18 months. The Missouri Clean Water Commission recently approved a new rule for developing Missouri's impaired waters list. Within weeks of the commission's decision, EPA published new requirements for these lists for all 50 states. Now, the commission must revise its rule to line up with the new federal requirements before the state can develop the next impaired waters list. It will take at least 18 months before Missouri can legally promulgate new procedures to determine whether our streams meet federal criteria.The Sierra Club and the Coalition for the Environment, dissatisfied with our progress, recently suggested the state relinquish its role to EPA to create Missouri's impaired waters list. Driving a wedge between the state and EPA on the evaluation of water quality could result in higher pollution levels in some Missouri waterways. Allowing EPA to define clean water for Missouri streams will not allow for regional needs, such as those to protect fragile groundwater supplies used by many Ozark communities or those that control phosphorus pollution in southwest Missouri.The Department of Natural Resources is the best agency to protect Missouri waters. We best understand the unique nature of our diverse waters and the challenges in ensuring their protection. Instead of working to remove the state from the picture, the Sierra Club and the Coalition for the Environment need to work with us in facing those challenges. By working with the department, the environmental groups will strengthen Missouri's ability to protect and manage its water quality.

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Mo App WD affirms finding of permanent total disability for cumulative back trauma with secondary effect of mental anguish substantially arising from the back pain; Findings adequately stated no basis for Second Injury Fund liability Higgins, v. Quaker Oats Company & Second Injury Fund, # WD64978 1/29/2005 Labor and Industrial Relations Commission The Quaker Oats Company and its insurer appeal the labor and industrial relations commission's decision awarding Betty Higgins benefits for permanent total disability and finding no liability on the part of the second injury fund.AFFIRMED.
employer abandoned appeal claim that Commission should not have considered Plaintiff's "hybrid" claim of cumulative trauma with specific injuries Employer asserts that the Commission acted without or in excess of its power when it allowed Employee to present a "hybrid" claim comprising the cumulative trauma along with the two specific instances of back injury. Employer cites no authority explaining the limits of the Commission's power.
Commission considered sufficient evidence to find that Plaintiff suffered perm. total disability from cumulative back trauma with consequential mental anguish "The Commission is free to believe all, part, or none of the evidence presented at the hearing." DeGraffenreid v. R.L. Hannah Trucking Co., 80 S.W.3d 866, 881 at 875 (Mo. App. 2002) . We cannot say it was against the overwhelming weight of the evidence for the Commission to conclude that Employee's cumulative back injury caused chronic pain disorder and depression, rendering her unable to work.
" "[A] mental injury triggered or precipitated by a work-related accident is…compensable provided it can be shown that the accident was a substantial factor in causing the injury." Tangblade v. Lear Corp., 58 S.W.3d 662, 667 (Mo. App. 2001). "
[A] preexisting but non-disabling condition does not bar recovery of compensation if a job-related injury causes the condition to escalate to the level of disability. If substantial evidence exists from which the Commission could determine that the claimant's preexisting condition did not constitute an impediment to performance of claimant's duties, there is sufficient competent evidence to warrant a finding that the claimant's condition was aggravated by a work-related injury. Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo. App. 1994)
There was sufficient evidence of total disability that met the MO legal standard
The test for permanent total disability is whether the employee is "competent to compete in the open labor market," i.e., unable to return to any "reasonable or normal employment." Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 853 (Mo. App. 1995)
WD Appeals Court agrees that no part of Plaintiff's disability is the Second Injury Fund's responsiblity
While Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000), does hold that where liability is to be apportioned between the employer and the Second Injury Fund, the Commission must determine the degree of disability caused by the last injury, the Commission need not employ any particular language in finding the scope of disability. Commission findings may "set out the actual grounds of decision and make possible an intelligent judicial review." Stegeman v. St. Francis Xavier Parish, 611 S.W.2d 204, 207 (Mo. banc 1981). Furthermore, a clear agency decision "impl[ies] a finding of additional facts (beyond those expressly found) necessary to support it." Peterson v. Cent. Pattern Co., 562 S.W.2d 153, 156 (Mo. App. 1978). The commissions findings, in attributing all of Employee's permanent total disability to the cumulative injury properly assigns full liability to Employer and none to the Second Injury Fund. See Landman v. Ice Cream Specialties, Inc 107 S.W.3d 240, 248 (Mo. banc 2003) "If the last injury in and of itself rendered [the employee] permanently and totally disabled, then the [Second Injury Fund] has no liability and [the employer] is responsible for the entire amount of compensation." .,

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Follow up: Last Summer the Eighth Circuit Court of Appeals ruled in Carhart v Gonzales that the Federal partial birth abortion law was unconstitutional according to SCOTUS decision Stenberg v Carhart. Monday 8th Circs hold the Missouri-version partial birth abortion law (Mo. Rev. Stat. § 565.300,) likewise unconstitutional;
042909P.pdf 11/28/05 Reproductive Health v. Nixon, Atty General Western District of Missouri
Stenberg does not per se require a health exception for all partial birth abortion bans, still Stenberg requires a health exception whenever “substantial medical authority”supports the need for a health exception. Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005) Eighth Circuit Judge Bye finds that nothing had changed since Scotus in Stenberg found that substantial medical authority had concluded that some partial birth abortion procedures were necessary forthe health of the pregnant woman. Congressional findings and other expert opinion notwithstanding Judge Bye states "because (Missouri) has not introduced any evidence showing there has been a change in the medical authority since Stenberg, the District Court was correct to issue summary judgment against (Missouri).

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8th Circs deny appeal of NTSB mechanics license revocation from nitrite adulterated urine sample; Appellant failed to file timely brief in seeking review of urine sampling policy Cornish v. FAA 042698P.pdf 11/28/05 Appellants brief was nine days late, due to his attorney's misreading the rules on when the brief from the ALJ'S decision is due. 8th Circuit finds no good cause to excuse default and further does not find that NTSB applies its late filed brief rule capriciously. If you are appealing adverse administrative actions for failing urine tests, make sure your attorney doesnt engage in similar activities.

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Heres what happened to lawyers "handshake" agreements Dept: Lawyer alleged referral fee deal for 50/50; Court holds no deal unless client signed in writing or if attorneys shared equal responsibility or work, citing Mo Rule of Professional Conduct Rule 4-1.5(e)Neilson v. Mark T. McCloskey P.C., #ED86199 11/22/2005 Appeal From: Circuit Court of the City of St. Louis, Hon. Steven R. Ohmer
Attorney who alleged that attorney to whom he referred large personal injury case stiffed him on their referral deal appeals from trial court's dismissing his sixth petition for failure to state a claim. Plaintiff and Defendant both attorneys, entered into an oral agreement to jointly represent one of Neilson's clients. They were not in the same firm and agreed to divide the fee 50/50. McCloskey ultimately settled the client's case for $2,500,000 of which $1,000,000 was attorney's fees. McCloskey subsequently sent Neilson a check for $225,000. Neilson never deposited the check, demanding full payment of $500,000, which McCloskey never paid. Neilson filed his petition in the circuit court, but failed to allege that a written contract ever existed or that he performed half the work, as required by Rule 4-1.5(e). The trial court subsequently granted Neilson leave to amend his petition five times, but he never alleged the required elements of his case. McCloskey subsequently moved to dismiss, which was granted.
Decision: "If an attorney wants a share of the fee, he must perform an appropriate share of the legal services in the case. (Risjord v. Lewis, 987 S.W.2d 403, 406 (Mo. App. W.D. 1999). This requires actual participation in the handling of the case, or the assumption of a financial and ethical responsibility for the case. This fundamental requirement applies to attorneys seeking fees for legal services performed and to those claiming fees for assuming joint responsibility for representation in the case.
In sum, an agreement to share attorney fees that does not comply with Rule 4-1.5(e) is unenforceable. Londoff v. Vuylsteke, 996 S.W.2d 553, 557 (Mo. App. E.D. 1999)"
In a backhanded comment on the Defendant's handling of the case however, Court laments the good old days when handshakes were good between lawyers:
in commerce between attorneys, attorneys must rely on the integrity of one another, and that promises made are to be promises kept. While difficult to reconcile the two hundred and twenty-five thousand dollar ($225,000) check to Neilson from McCloskey,(FN2) Rule 4-1.5(e) does not let us engage in the inquiry.

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Further job cuts coming from KC's Interstate Brands
Interstate Bakeries to Cut 450 More Jobs Associated Press
Interstate Bakeries Corp. said Tuesday it is laying off 450 workers as it consolidates operations in three regions across the country.
The bankrupt baker of Wonder Bread and Hostess Twinkies said the closure will eliminate the positions of store clerks, salespeople and delivery people in nine states by the end of the year.

The news marks the latest cost-cutting measure by Kansas City, Mo.-based Interstate Bakeries, which has shut seven bakeries and eliminated more than 4,000 jobs since it filed for bankruptcy in September 2004.

Given falling demand for bread products, Interstate Bakeries' new management turnaround firm has sought to reduce low-performing operations by consolidating the company's bakeries and distribution hubs across the country. The company is making simultaneous efforts to rejuvenate flagship brand Hostess Twinkies and to woo customers to a line of new products.

Last month, the company - the nation's largest wholesale bread and cake distributor - reported monthly sales in September were the second-lowest since it filed for Chapter 11 protection.

Interstate spokeswoman Maya Pogoda said the company will complete consolidations in the next four months, after analyzing operations in the upper Midwest.

The company said laying off the 450 workers would result in $3 million in charges, including $1 million in severance pay. Interstate Bakeries will spend an additional $3 million to implement the consolidation. The U.S. Bankruptcy Court in Kansas City must still approve the changes and will hear the motion in mid-December.

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Secy of State Robin Carnahan refuses to point fingers after the US Justice Department filed suit to clean up voter registration records; does that mean its all on her? St Louis Post Dispatch 11-22-05
The Justice Department sued Missouri and Secretary of State Robin Carnahan on Tuesday, alleging that the state failed to maintain proper voter lists and routinely allowed ineligible voters to stay registered.
The suit contends that before last November's election, nearly a third of Missouri's election jurisdictions had more registered voters than people of voting age. It said that Reynolds County, in south-central Missouri, had 153 percent of what the census had tallied as the potential voter pool.The complaint demands a urvey of all election jurisdictions in Missouri - 114 counties plus St. Louis and Kansas City - to root out problems, plus a future monitoring plan and a means to remedy past errors.

"With this lawsuit, the Department of Justice will ensure that all Missouri voters are able to go to the polls and cast ballots in free and fairelections," said Wan J. Kim, an assistant attorney general in the civil rights
division.The civil suit was filed in Kansas City. It seeks no specific penalties otherhan costs of the suit and "other such relief as the interest of justice mayrequire."

The legal action continues a focus on Missouri that began after the 2000
election, when the Justice Department sued the St. Louis Election Board on
similar grounds.

The case was settled when the board promised in 2002 to eliminate its so-called
inactive voter list and provide computer equipment so election judges could
more swiftly handle voting discrepancies.

Justice Department spokeswoman Cynthia Magnuson said the suit was the only such
case pending at the moment and that several others around the country had been
settled.

She said that although her office had notified Carnahan and Attorney General
Jay Nixon last month of the government's intent to go to court, no agreement to
forestall the suit could be reached.

"When there's a problem, states usually are willing to talk and to resolve
problems until there is compliance with the law," she said.

The suit argues that the 1993 National Voter Registration Act requires that
people be removed from voter lists when they die, are convicted of a felony or
become mentally incapacitated.

But the suit says clerks in unspecified counties had failed to perform voter
canvasses, wrongly had removed voters from registration lists and had permitted
others to remain even though people had died, registered in multiple counties
or had registered under both their maiden and married names.

Carnahan said she was disappointed and called the suit needless.

She said her office had been working with counties to clean up the voter lists.
For example, training manuals have been developed and election workers have
been trained in 101 counties so far, she said.

A centralized voter database is scheduled to go online in January, she said, so
that information can be cross-checked against death certificates, criminal
records and Social Security data.

"I'm just trying to stay focused on my job, which is ensuring we have fair
elections," she said. "We've been talking to counties for a long time and
trying to fix the problems we inherited."

Asked whether Gov. Matt Blunt could have done more to clean up the voter rolls
when he was secretary of state, Carnahan said: "I'm not going to point fingers
and say who should've done what. All I know is it didn't happen and now I'm
here and I'm going to try to get it fixed."

Blunt's office was less charitable. Spence Jackson, Blunt's spokesman,
contended that Carnahan should have worked with federal officials to solve the
problems and "use the bully pulpit of her office to urge local elected
officials to make needed corrections."

Carnahan said she had no quarrel with the Department of Justice's request that
her plan include a survey of election authorities, a way to remedy errors and a
means to monitor voter rolls in the future.

She said Nixon had advised her against signing a consent decree with the
government. She declined to elaborate on Nixon's reasoning. Nixon's office said
he had yet to see the suit.

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Sweet Home Illinois, er Alabama?Was candidate for the Illinois Supreme Court a home town downstater or was he from the Crimson Tide? Defeated Judge Maag files libel suit against tort reform campaigners alleging Alabama residency. It takes a lawyer as clever as Rex Carr to figure this out ST. LOUIS POST-DISPATCH Friday, Nov. 25 2005 Judge Maag as filed libel suits against some of his critics, problem is we dont know where he lives.I say that because there seems to be some question as to whether he is a resident of Illinois, as he stated in one of his suits, or a resident of Alabama, as he stated in another. As anybody with a memory and a television knows, Maag ran for the Illinois Supreme Court last year. He ran against Lloyd Karmeier. It was a dirty, filthy,entertaining campaign. Both sides spent much money - a total of $10 million - and the great bulk of that money was spent on negative advertising. By the end
of the campaign, most voters understood that each candidate wanted to free
murderers and sexual predators. What was a voter to do? One candidate was going
to win. Maag was favored by, and largely funded by, the trial lawyers.
Murderers and sexual predators are bad enough. But trial lawyers, too? The
voters opted for Karmeier, who favored tort reform and was therefore considered
the lesser evil.

Maag responded to his loss by filing a suit against the groups that had opposed
him - the Illinois Coalition for Jobs, Growth and Prosperity and the Illinois
Chamber of Commerce. He claimed they had distorted his record, maligned him and
so forth. Incidentally, Maag lost more than just the election to the Supreme
Court. Voters also decided not to retain him as an appellate judge.

The lawsuit was filed in Madison County, a venue generally sympathetic to
plaintiffs. But Circuit Judge Patrick Kelley dismissed the case. He decided the
flier that had been cited in the suit was not really defamatory.

That begs the question: What is defamatory in Madison County? In his lawsuit,
Maag had alleged that the flier put out by his opponents delivered a message
that he "was devoid of basic human decency." Kelley must have thought, "That's
it? You want to sue about that?"

Not for nothing is Madison County known as a "Judicial Hellhole." There are
those who say a lawyer gets no respect at the courthouse in Edwardsville unless
he's devoid of basic human decency.

Obviously, Maag needed a more refined venue. He decided to file a lawsuit in
federal court. But he had a "legal diversity" problem. Simply stated, a
resident of one state cannot sue an entity in the same state in federal court.
So Maag alleged that he was a resident of Alabama.

Alabama? Back when he filed his case in Madison County, Maag claimed to be a
resident of Illinois.

Maag is represented in the federal suit by Rex Carr, who once boasted in open
court that he was personally responsible for turning Madison County into a
Judicial Hellhole. I called Carr to get the straight story on Maag's place of
residence. Carr was not in and did not return my call.

So I called the Illinois Bar Association and asked for Maag's business address
and phone number. This is strange, said a woman at the Bar Association. He
lists a P.O. Box in Alabama for his place of business, but no phone or fax.
Most lawyers have phones, she said.

There are probably a lot of voters who are now congratulating themselves. We
did right, they're saying. Either Maag is trying to manipulate the court system
or he didn't like Illinois enough to live here once he got booted off the
public payroll. Either way, it's a good thing he's not on the Illinois Supreme
Court.

I'm not saying that, of course. His critics are. I'm not among them.

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Follow up on attorney advertising regulation: Florida Supreme Court disciplines attorneys who used illustrations of pit bull dogs in their advertisements and a phone number representing the letters PIT BULL; Lawyers could improve their image and behavior by emulating these cute kittens and lab puppies The Florida Supreme Court, you know, the court that wanted recounts in the 2000 presidential election to go until Gore won, reprimanded 2 attorneys for portraying themselves as pit bull dogs. Sunethics.com First the Court found that portraying themselves as pit bulls was misleading because it created an unjustified expectation on the part of the public, but then after a lengthy exegesis on how harmful pit bulls are, finds the portrayal of lawyers as pit bulls as harmful as portraying themselves as sharks, pirana, and other dangerous animals. Me however I prefer cuddly kittens, and a loyal black lab. Could I advertise cuddly kittens and suggest that I will be warm and fuzzy to the client, the judge and opposing counsel. After all most criminal defendants lose and personal injury clients have at best a 50/50 shot of winning. It might benefit clients to have a lawyers who wont piss off the other side.

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Victory for Serviceman's child custody rights: Mo SCt upholds modifying divorce decree to give Air Force serviceman custody of child where mother and father divorced in Cape Girardeau County and airman kept Missouri residency; the mother moved to Arizona with boy, but Arizona court declined jurisdiction; and mother defaulted in latest Cape Girardeau proceedings; Uniform Child Custody Jurisdiction Act did not require CapeG court to find out why Arizona declined jurisPirisky v. Meyer, Case Number: SC86594 11/22/2005
Appeal From: Circuit Court of Cape Girardeau County, Hon. William L. Syler
"Jurisdiction under the UCCJA to hear custody matters is characterized as subject matter jurisdiction, which may not be waived, and may not be conferred by consent of the parties and must be based upon circumstances at the time the court's jurisdiction is invoked." Arizona declined to assume jurisdiction.
CapeG would be an appropriate jurisiction as the home state of the parent and where the parties' intial proceedings took place
The appropriate test for jurisdiction is found in section 452.450, which states: another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.
"section 452.450.1(4) does not contain an express requirement for a specific finding for why the Arizona court declined jurisdiction. It is not only implicit in the Arizona order that Missouri would be the more appropriate forum, but the UCCJA instructs that as long as sufficient contacts remain with the forum issuing the original child custody or modification order that any competing forum should defer to that jurisdiction in additional custody actions to achieve stability in the law and avoid forum shopping. The "sufficient" or "maximum contacts" requirement in this instance is satisfied by Father having maintained his Missouri residency; the fact that Missouri was the jurisdiction where the original and subsequent custody and modification decrees were issued; and because the only other forum that could adjudicate custody had declined jurisdiction.(FN7) This Court finds the law and the facts support a finding of subject matter jurisdiction in this case. "
Mother did have grounds to set aside default against her Rule 74.05(d)
"Mother was personally served with the motion to modify. On December 10, 2003, the Arizona court overruled Mother's motion for it to assume jurisdiction of the matter. On December 30, 2003, Mother consented to the withdrawal of her Arizona attorney in a signed statement acknowledging that she understood that failure to respond or appear in Missouri could result in a default judgment. Mother made two requests for additional time, which were denied. Mother was fully informed of the consequences of failing to appear or in failing to retain Missouri counsel to appear on her behalf. Mother's willful disregard of the process of the court does not constitute "good cause" or "excusable neglect."(Rule 74.05(d) )

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MoSct holds that punitive damages may be available under state consumer protection laws, Chapter 407, RS Mo. Although jury had already awarded nearly $820k in punitive damages on a common law fraud county, the Supreme Court says the Plaintiff should have a jury trial on the consumer protection count. Scott v. Blue Springs Ford Sales, Inc., et al. #SC86287 11/22/2005 Appeal From: Circuit Court of Jackson County, Hon. Marco A. Roldan
The statutory consumer protection claim and common law fraud claims are not inconsistent theories of recovery nor remedies requiring election, from the outset. After a trial, the trial court should determine whether the punitives verdict violates due process under State Farm Mutual Insurance v. Campbell, 538 U.S. 408 (2003),

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"Case of first impression" MoAppSD holds that failure to provide proper notices regarding disposition of collateral (400.9-614 RS MO)results in absolute bar against only the loan for which the creditor sent notice; there is no absolute bar against other "cross collateralized" loans (9-615) Missouri State Credit Union, , v. Danny & Carole Wilson #26347 Southern District 11/21/2005 Appeal From: Circuit Court of Dent County, Hon. Edith R. Rutter Defendants defaulted on both a truck loan and a credit card that the Credit Union secured with the truck. After default the Credit Union took possession of the truck, but the trial court found its selling the collateral did not comply with 400.9-614 RS MO. Credit Union did not appeal this issue, however the Defendants claimed that since the Credit Union also secured the credit card balance with the truck, the failure to give proper notices regarding the disposition of collateral likewise barred further collection on the credit card, citing the "absolute bar" rule. RWR, Inc. v. DFT Trucking, Inc., 899 S.W.2d 875, 878 (Mo. App. S.D. 1995). The trial court disagreed, holding that a coincidental default on another loan covered by the same collateral would not impair creditor's rights to collect the other loan even though the collateral disposition was faulty. 400.9-601(a) Mo App SD affirms

"it is undisputed that the Credit Union failed to give the proper notice to Defendants regarding the sale of the truck and the finding on the deficiency judgment for the truck debt has not been challenged in this appeal. Defendants claim that the failure of the Credit Union to follow procedures in one loan affects the disposition of all loans secured by the same collateral; therefore, the question before us is whether the inadequate notice to Defendants on the debt secured by the truck forecloses collection efforts on any other debt secured by the same collateral. "
"Credit Union argues that the second half of the clause, "under which the disposition is made," (400.9-615a)mandates that the proceeds only be applied to the loan for which the foreclosure sale occurred, whereas Defendants claim that the proceeds must be applied to any and all loans secured by collateral."
We find persuasive the reasoning set forth in Knights of Columbus Credit Union v. Stock, 814 S.W.2d 427, 433 (Tex. App. 1991), in which the court found that cross-collateralization does not transform three separate loans into one loan. Id. at 431-32
Likewise, in Milliorn v. Finance Plus, 973 S.W.2d 690, 693 (Tex. App. 1998), the Texas court cited the decision in Knights of Columbus holding that a calculation of deficiency judgment should not include a loan which was not listed on the notice of sale of collateral.
Section 400.9-601 provides a secured creditor with options in which the creditor can proceed; specifically, section 400.9-601(a)(1) provides that after default a secured party "[m]ay reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure."
We hold that when there are two separate loans secured by the same collateral, the creditor may reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure without affecting its claim in the second loan

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AttyGen Nixon using 1988 Missouri incarceration reimbursement act to recover "donations" female inmates have received from interent pen-pals.POST-DISPATCH JEFFERSON CITY Tursday, Nov. 17

Attorney General Jay Nixon is playing the role of meddlesome chaperone, cracking down on romantic Internet pen pal services to the tune of nearly 300,000. That's how much Nixon says the inmates may have collected from adoring "penpals," thanks to sultry singles ads they placed on Internet sites that connectthe lonely with the incarcerated. Web sites such as www.thepamperedprisoner.com, www.inmatesforyou.com and
www.cellpals.com offer inmates the chance to publicize photos and personal information about themselves in hopes of attracting letters. Once the connection is made, the prisoners often begin asking for money to continue the pen pal arrangement.

Nixon filed legal action Thursday in Cole County Circuit Court to recoup that bounty from 33 prisoners, citing a Missouri law that allows the state to coverprison costs by seizing inmates' assets.

The prisoners named in the litigation collectively deposited $291,860, or anaverage of nearly $9,000 each, into their inmate accounts. In one instance, aninmate had made deposits of more than $14,000 in a year; another took donationsfrom 18 different pen pals, according to the attorney general's office.

Jim Gardner, a spokesman for Nixon, said the attorney general's staff believedthat most of that money came from pen pal solicitations, though he said thatwouldn't be known for certain until courts could review each case.

The cost of housing the 33 inmates has thus far exceeded $2.6 million,according to the attorney general's office.

"If you're going to be using a Missouri prison cell as a base of operation foryour business, you owe it to taxpayers to pay for room and board," Gardner said.

But the founder of a pen pal Web site used by many of the Missouri inmates sayshe sees nothing wrong with the donations, provided no fraud was involved inseeking the money.

Adam Lovell, who started the site www.writeaprisoner.com, charges the 5,000inmates nationwide using his site $40 each per year to post an ad. At least 13of the 33 inmates targeted by Nixon have a posting on Lovell's site.

In all, nearly 100 Missouri prisoners, including several murderers, use theservice. Unlike some of his competitors, Lovell lists the inmates' crimes withtheir ads.

Missouri - like most, if not all states - bans inmates from using the Internet.But the Web sites have worked around those restrictions.

Prisoners register for an ad by mail, or have friends and relatives sign themup. Those interested in contacting an inmate send an e-mail to the Web site,which forwards a letter to the prisoner.

From that point, Lovell said, the mail correspondence is directly between the pen pal and the inmate.

Nixon's legal action targets the inmates exclusively. None of the litigation isdirected at the Web page operators.

Lovell said he'd never heard of a state seeking to recover donations sent toinmates.

Gardner said he wasn't aware either of any other state's taking up the matter.

More than a dozen prison pen pal sites are operating on the Internet. The Web sites mimic singles Internet sites, with many inmates posting provocativephotos of themselves. According to the attorney general's office, some sitesfeature sexually explicit photos.

The 1988 Missouri Incarceration Reimbursement Act allows the state to captureassets from prisoners in order to cover up to 90 percent of prison costs. Inthe past, Nixon has gone after more conventional sources of money, such aslottery winnings or inheritances, Gardner said..

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Dubious achievement dept: St Louis is 3rd most dangerous city in the United States Post Dispatch St Louis city ranks third in "City Crime Rankings," an annual report published by Morgan Quitno Press of Lawrence, Kan. St. Louis trails Detroit in the No. 2 spot and Camden, N.J., which was named the most dangerous city for the second year in a row. The St. Louis Police Department declined to discuss the rankings Sunday night.

Morgan Quitno's assessment is based on a given city's rates last year in six crime categories: murder, rape, robbery, aggravated assault, burglary and auto theft, as reported to the FBI. The firm scores cities against national averages in each category and adds the scores, weighing each crime the same.

Scott Morgan, president of Morgan Quitno, told The Associated Press on Friday that while the numbers may not be perfect, they are one of the only ways to compare crime in different cities.
=============

Most dangerous cities


1. Camden, N.J.

2. Detroit

3. St. Louis

4. Flint, Mich.

5. Richmond, Va.

6. Baltimore

7. Atlanta

8. New Orleans

9. Gary, Ind.

10. Birmingham, Ala.


Safest cities

1. Newton, Mass.

2. Clarkstown, N.Y.

3. Amherst, N.Y.

4. Mission Viejo, Calif.

5. Brick Township, N.J.

6. Troy, Mich.

7. Thousand Oaks, Calif.

8. Round Rock, Texas

9. Lake Forest, Calif.

10. Cary, N.C.

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MoApp ED refuses to quash garnishment on other property of child support obligor but holds execution on Husb's equity interest in family home improper where he could not himself collect for 3 more yearsMurray v. Murray #ED85867 11/15/2005 Circuit Court of St. Louis County, Hon. John Essner; ExWife garnished ExHusband's bank accounty for past due support and medical expenses. Husband and wife made a deal that required Husb to pay extra $300/month in exchange for lifted bank garnishment. However a few months later Wife garnishes Husb's share of the home equity upon her refinancing the former marital home and Husb seeks to quash garnishmenton share of home refinancing No waiver or acquiescence allowed for child support debtor just because wife accepted a payment plan the defense denominated as waiver by acquiescence does not arise in the absence of some fact or circumstance which warrants the invocation of equitable considerations in order to avoid injustice. Grommet v. Grommet, 714 S.W.2d 747, 751 (Mo. App. E.D. 1986). To invoke the doctrine of waiver by acquiescence, the obligor must show more than an agreement by the obligee to accept reduced payments or a delay in demanding full payment. Foster v. Foster, 39 S.W.3d 523, 530 (Mo. App. E.D. 2001). Without more, acceptance of an amount less than owed or a delay in demanding child support payments does not rise to the level of waiver by acquiescence. State ex rel. Bramlet v. Owsley, 834 S.W.2d 868, 871 (Mo. App. 1992). The agreement John and Virginia entered into obligated Virginia only to release the garnishment on John’s checking account in exchange for his making the additional $300.00 monthly payments. There was no prohibition of any other garnishment, nor any provision for Virginia to waive her right to demand the full outstanding amount due at any time. We find that Virginia holds a valid judgment for the remaining child support and unreimbursed medical expenses.EDApp Court however finds it was not proper for Wife to garnish Husb's equity interest in home to extent his interest would not become due until three years laterSection 525.260 provides that debts not yet due to the defendant may be attached, but no execution shall be awarded against the garnishee for debts until they shall become due ... the garnishor stands in the shoes of the judgment debtor. Id. It follows that the garnishor may reach the indebtedness which the garnishee has a present obligation to pay to the judgment debtor at the time of service, and nothing beyond this. Id. The governing principle is that the right of a garnishing creditor against a garnishee cannot be greater than the right of the judgment debtor against the garnishee. Davis v. Thompson, 619 S.W. 2d 754, 756 (Mo. App. W.D. 1981).John did not have at the time of the garnishment, and does not have now, any present right to the payment of the $18,500.00 with the nine percent accrued interest. Under Section 525.260, a debt which is not due until 2007 cannot be subject to garnishment in 2004. Therefore, execution on the debt was not proper. We reverse the trial court's judgment on this point and remand for further proceedings consistent with this opinion.

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SCOTUS takes up whether unpaid worker compensation premiums are a priority debt against the debtors' estates, See 11 USC 507(a)(4); 4th circuit recently ruled premiums were priority debts, while in 1995 8th Circuit held they were not priority debtsUnited States: Bankruptcy: Priorities - Claim for Unpaid Workers’ Compensation Insurance Premiums (Supreme Court Docket Report – November 7, 2005)Mayer Brown & Platt Recently, the Supreme Court granted certiorari in one case of interest to the business community. Amicus briefs in support of the petitioner will be due on December 22, 2005, and amicus briefs in support of the respondent will be due on January 26, 2006. The case is Howard Delivery Service, Inc. v. Zurich American Insurance Co., No. 05-128 from the 4th Circuit. 8th Circuit case fromMinnesota in 1995 reached opposite conclusion: worker comp premiums are not priority debts, Employers Insurance of Wausau v HLM (In re HLM). For such a critical issue, the Congress apparently did not address the issue in the 2005 Bankruptcy Reform Act, because it did not amend directly 507(a) Mayer Brown Platt comments: "The Supreme Court’s decision in this case will obviously be of great interest to all insurance companies that provide workers’ compensation policies to employers, as the decision will establish whether priority under Section 507(a)(4) will be given to claims for unpaid workers’ compensation premiums. More generally this case is important to the business community at large, as it will affect the priority given to all unsecured debts of employers."

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USA Patriot Act to require Insurance Companies to report suspicious activities regarding cash value type insurance products; United States: New Anti-Money Laundering Requirements For Insurance Companies sutherland Asbill Brennan. The government is basically requiring the Insurance Industry to report suspicious uses of insurance products that have cash or surrender value. In other words if a customer is buying large amounts of non-term life insurance he might be laundering money or preparing a terrorist act. Whats a suspicious indicator: purchasing life insurance products that dont make sense for the customer. Hope that doesnt snare a lot of gullible life insurance customers who bought from salesmen out for the high commissions from whole life. Query: apparently the Justice Department does not think property/casualty insurance transactions pose enough risk for coverage; havent they heard about all the staged accidents and vehicle thefts some immigrant groups pull off?

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MOSct halts re-trial of St Louis County murder case where judge had on his own ordered a mistrial during State's presenting defendants confession; The judge's initiating the mistrial may trigger the defendant's double jeopardy rights against a retrial ST. LOUIS POST-DISPATCH Friday, Nov. 18 2005 Judge David Lee Vincent III ordered a mistrial on his own in September that a St. Louis County murder trial jury had heard too much about a polygraph test. Now the Missouri Supreme Court has ordered Vincent not to start the re-trial,and to justify his ruling against a defense claim that says it would amount to double jeopardy to put Sandra Kemper on trial again in the death of her son.

In an order issued Thursday and made public Friday, the high court told Vincent
to explain by Dec. 19 why he sent the jury home in the second week of Kemper's
trial in September and scheduled a new trial for Nov. 28.
Kemper's attorney, Susan Roach, cites the Fifth Amendment to the Constitution,
which provides that no person shall "be subject for the same offense to be
twice put in jeopardy of life and limb." Neither Roach nor Prosecutor Jack Duepner sought a mistrial after the jury heard testimony on Sept. 19 about the administration of a polygraph test to Kemper in March 2002 and also about conflicting results of that test. Polygraph test results are inadmissible in Missouri courts.

After a day's research, Vincent said he decided that showing the jury a
two-hour videotape of the test, conducted by St. Louis County police Detective
Ken Schunzel, may have been proper as an attempt to show that the test was used
to coerce a confession.

But Schunzel's declaration on the tape that Kemper had flunked, and a defense
expert's testimony that she had passed, wasn't permissible testimony, the judge
decided. Vincent then declared a mistrial and ordered Kemper back to jail.

Last month, Roach asked the Missouri Court of Appeals to bar a new trial and
set Kemper free. Twelve hours later, that court rejected her request without
comment. Roach took it to the state Supreme Court.

The key issue, Roach said, is what is called the "manifest necessity doctrine." See State of Missouri v. Theodore Tiger, Jr. (1998)
Since neither she nor the prosecutor had objected to the polygraph results,
there was no "manifest necessity" for a mistrial, she said. The jury could
simply have been ordered to disregard any inadmissible evidence, she suggested.

Kemper is charged with first-degree murder in the death of her son, Zachariah,
15, a freshman at Hazelwood East High School. He died in a fire at their home
on Champana Lane in north St. Louis County in 2001.

Duepner alleges that Kemper was also trying to kill her husband, Steven Kemper;
his lover, Jay Long; and her mother, Betty Bryant, who all escaped the fire.

Nine times during the polygraph and questioning by Schunzel, Kemper denied any
involvement in the fire. Later that day - after Schunzel told her she flunked
the test - she told detectives she had set the fire for insurance proceeds
without any intent to harm her son. Schunzel has since died.

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St Louis' Bryan Cave and KC Shook Hardy Bacon are top Show Me State based lawfirms in the latest National Law Journal Top 250 law firms by ## of attorneys and for gross revenues in AmLaw 100
Law.comFor number of attorneys Bryan Cave is the largest in Missouri with 730 lawyers; next in line is KCs Shook Hardy Bacon, 74th place at 493 Attorneys. The AmLaw 100 ranks firms by gross revenue and Bryan Cave is still the largest with $372.5Million revenue last year but it dropped 10 spaces to 55th place. Shook Hardy held fairly steady 74th last report, 75th this report with gross revenue $252.5million (Adam Smith blog).

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Rental car owner that self co-insured for less than Missouri's 2$25K minimum, was also in Chapter 11, and had claimed it was not a primary insurer was not an "uninsured automobile; partially self insured rental car was however an "underinsured" automobile; Stacking not allowed either Driver of rental car responsible for serious injury accident, resulting in $1,600K+ verdict against her, had $10K liability coverage, the minimum under Florida law, while Missouri where accident occurred required minimum liability coverage of $25K. National Car Rental offered to pay the difference, even after it filed bankruptcy, court finds that rental company denying that it was the primary insurer did not make its automobile an "uninsured automobile" under American Family policy with the plaintiffs. Nor did National's bankruptcy create uninsured status because bankruptcy court approved payment and the proceeding was a Chapter 11, not necessarily making National Car Rental an insolvent (self) insurer. 8th Circuit finds that rental car was "underinsured" because of ambiguity in policy resovled in favor of insured; National was "self-insured" but inadequately. 8th Circuit finds however that Plaintiffs could not stack policies for multiple autos they insured
Murray v. American Family No. 04-3576 043576P.pdf 11/17/05 Western District of Missouri
Plaintiffs brought this action against American Family Mutual
Insurance Company (“American Family”) for failure to provide insurance benefits, breach of contract, and failure to procure insurance. The district court1 granted summary judgment to American Family and the Murrays now appeal. We affirm inpart and reverse in part.
...
8th Circuit holding that self insured automobile not uninsured because driver kicked in part and rental car owner paid the rest
In addition to the $10,000 personal liability coverage, the vehicle
was also insured by National Car Rental as a self-insurer. Under Missouri law, a selfinsurer is obligated to insure a vehicle in at least the minimum amounts required by Missouri law. Mo. Rev. Stat. § 303.160.1(4); Quick v. Nat’l Auto Credit, 65 F.3d 741, 745 (8th Cir. 1995) (“self-insurer must promise to pay the same judgments in thesame amounts as an insurer would be obligated to pay”). Because National CarRental was a self-insurer, it was by definition responsible to pay the minimum amount required by Missouri law, up to $25,000.National statement that it was not the primary carrier did not amount to denying coverageNational Car
Rental was refusing primary liability coverage for the vehicle, not denying coverage in total.National was not "insolvent" just because it had filed chapter 11See Mo. Rev. Stat. §400.1-201(23) and 11 U.S.C. §101 (32)(A)
...
Policy was ambiguous as to whether National Car was underinsured, and due to ambiguity, Court finds in favor of insuredInsurance policy provisions designed to restrict, limit or impose exceptions or exemptions on insurance coverage will be strictly construed against the insurer.” Farm Bureau Town & Country Ins. of Mo. v. Hilderbrand, 926 S.W.2d 944, 947 (Mo. Ct. App. 1996)).
court will not allow stacking however, distinguishing recent Mo Court appeals ruling that suggested it should allow stacking of multiple policies 8th Circuit will not follow Clark v. Am. Family Mut. Ins. Co., 92 S.W.3d 198 (Mo. Ct. App.1996) first because the MO Supreme Court might rule otherwise, and second the American Family policy in this case clarified that stacking was not allowed: Two or More Cars Insured. The total limit of our liability under all
policies issued to you by us shall not exceed the highest limit of
liability under any one policy. Accord, Am. Family Mut. Ins. Co. v. Martin, 728 N.E.2d 115, 118 (Ill. Ct. App. 2000).

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Follow up:While parties argue same case to the Missouri Supreme Court, 8th Circuit holds that the WD Fed Court properly enjoined enforcement of portions of the revised Missouri abortion "informed consent" and cooling off period law, Sec 188.039 RSMO, that dealt with the penalties for doctors not complying with the law, but the injunction was too broad: The Plaintiffs Planned Parenthood did not show that a prelim injunction was appropriate against allowing the State to develop an informed consent form and requiring doctors to obtain "informed consent" from preganant patients who wished to obtain an abortion that complied with the 1992 Scotus ruling Planned Parenthood v Casey. The 8th Circuit allowed the injunction to stand against enforcing the law against doctors' "knowingly" or "willfully" failing to comply with the law, even though the Federal District Court had issued a Pullman abstention order to allow Missouri state courts to resolve that issue;furthermore Attorney General Nixon would not be directly involved in enforcing the challenged law, so it was inappropriate under Younger principles to enjoin his conduct Reproductive Health v. Nixon, Atty General et al. Case No. 04-2674 Nov.,162005 Planned Parenthood filed this action against Atty Gen Nixon in his official capacity and two local prosecutors, claiming that the new statute is unconstitutionally vague on its face. After the district court granted a temporary restraining order prohibiting enforcement, Planned Parenthood moved for a preliminary injunction, and both parties moved for summaryjudgment. The court abstained under the Pullman doctrine,2 concluding that statecourt interpretation of the scienter provisions in §§ 188.065 and 188.075 couldmaterially affect the federal constitutional questions. That ruling was not appealed.
It was proper forthe District Court to enjoin some portions of the law, even though it had abstained uner Pullmanwe
conclude that the grant of a preliminary injunction was within the district court’s discretion if Planned Parenthood satisfied the Dataphase factors (Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). Any foot-dragging by Planned Parenthood in the state courts may be remedied by exercise of the federal court’s discretion to modify or vacate the preliminary injunction. See Catrone v.Mass. State Racing Comm’n, 535 F.2d 669, 672 (1st C ir. 1976).
...
Planned Parenthood v. Casey, 505 U.S. at 877-87, the Supreme Court upheld a Pennsylvania informed consentrequirement, concluding that a State may constitutionally require physicians, beforeperforming abortions, to provide truthful and not misleading information mandatedby the State, so long as the requirement does not place an “undue burden” on theconstitutional right of women patients to make the ultimate decision.
...
As the Supreme Court’s discussion in Hill v Colorado makes clear, facial attacks on statutes that do not threaten First Amendmentrights are not favored. Therefore, a concrete showing of irreparable injury is neededto justify preliminary injunctive relief barring enforcement of the challenged statute.
...
the core mandate to obtain “informed consent”is both clear and constitutional, and no enforcement action has been threatened.Thus, although the district court did not abuse its discretion in concluding that Planned Parenthood made a showing of threatened irreparable injury, that showingwas minimal indeed.
...
Planned Parenthood argues that § 188.039 is unconstitutionally vaguebecause physicians cannot be expected to fathom what conduct is mandated by termsthat have no recognized or accepted medical meaning. Carried to the extreme, thisargument rests on an unsound premise -- that a State’s informed consent statute may
not require licensed physicians to provide information that goes beyond the realm oftheir medical judgment or expertise. Absent proof of an undue burden on patients’rights to abortion, such a regulatory mandate will be constitutional if its passesrational basis review.
....
we conclude that the district court did not abuse its discretion in issuing a preliminary injunction. But the injunction that it issued -- an unlimited order enjoining defendants “from in any way enforcing” § 188.039 -- wentbeyond what was needed to protect Planned Parenthood’s physicians from the limitedthreat of irreparable injury shown. More specifically, the district court abused its discretion (i) in granting an injunction that encompassed subsection 5 of § 188.039,thereby preventing the State’s development of the mandated form, and (ii) in failing
to clarify that the State is not enjoined from enforcing the “informed consent”requirement upheld in Casey. In addition, because the Dataphase balancing willinevitably change when the state courts have construed the scienter provisions (in acase which, we are advised, has now been argued before the Supreme Court of
Missouri), the district court erred in not providing that the preliminary injunction willexpire by its own terms ten days after the final state court judgment.

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MoAppED reverses puntives verdict against US Bank for PCB contamination; EDApp had already heard this case in 2003, ruling that the Bank was not vicariously liable for a contractor's waste dumping (Kaplan I). The Appeals court reversed for a new trial on the punitive damages that the trial court could attribute directly to the bank. On retrial ED Court finds that trial court improperly interpreted its mandate by asking the jury only to find the amount of punitive damages,rather than whether the Bank owed any
Kaplan, et al., v. U.S. Bank, N.A.,(Kaplan II) ED85640 Handdown Date: 11/15/2005 Circuit Court of St. Charles County, U.S. Bank, N.A., f/k/a Mercantile Bank, N.A., appeals the judgment awarding punitive damages and prejudgment interest to Robert Kaplan, trustee of Robert Kaplan Trust, and Doris O'Brien, representative of the estate of Leonard O'Brien, d/b/a Cloverleaf Properties, (collectively, Kaplan) based on the bank's negligent conduct. The bank asserts the trial court erred in (1) giving instructions that contravened the mandate of this court's opinion in Kaplan v. U.S. Bank, N.A., 166 S.W.3d 60 (Mo. App. E.D. 2003)(Kaplan I), (2) refusing to remit the punitive damages award because the award was excessive, (3) refusing to remit the punitive damages award because the award violated due process, (4) awarding prejudgment interest because the bank did not meet the requirements of section 408.040.2, RSMo 2000, and (5) awarding prejudgment interest on the punitive damages award.
REVERSED AND REMANDED FOR A NEW TRIAL ON THE ISSUE OF PUNITIVE DAMAGES ONLY.
Divison Four holds: The trial court erred in giving instructions that did not allow the jury to make a determination of whether the bank was liable for punitive damages as a result of its direct negligence where such a finding was mandated by the holding in Kaplan I. Accordingly, we must reverse the award of punitive damages and remand for a new trial on the issue of the bank's liability for punitive damages and an amount, if any, upon such a finding. Furthermore, Kaplan is not entitled to prejudgment interest because he did not meet the requirements of section 408.040.2, RSMo; therefore, prejudgment interest should not be awarded on remand.
"law of the case doctrine" requires the trial court on remand to follow the decision and orders of the appellate court; in this case the initial reversal of the punitives verdict was because the appeals court could not determine what part ofthe puni verdict was from the improper vicarious liability theory, 2nd time around the court finds the first mandate was to determine whether any punitives were appropriate and not just how much The law of the case doctrine is in:
Miller v. Missouri Dept. of Tranp., 97 S.W.3d 478, 481 (Mo. App. W.D. 2002). Pursuant to this doctrine, prior decisions of the appellate court become the law of the case in any subsequent proceedings, and the trial court has no authority to modify, alter, or otherwise depart from those prior decisions. Id. To determine whether the trial court acted in accordance with the law of the case, we look not only to the mandate, but also to the results contemplated in the appellate opinion. Id.
...
We find the mandate of Kaplan I clearly required a new trial on the "issue of punitive damages," including a finding of liability for punitive damages and an amount, if any. Awarding punitive damages is essentially a three-step process. See Section 510.263.(FN6) The first step is the legal determination by the court whether the case is submissible for punitive damages. The second step is a factual determination by the jury whether the defendant should be held liable for punitive damages, and the third step is the determination of the amount of punitive damages, if any. Section 510.263, see also MAI 10.02.(FN7) Thus, in Kaplan I, the court held Plaintiffs claim for punitive damages based on Bank's direct negligence was submissible. In so doing, the court stated there was evidence that Bank's conduct was so egregious that a jury could find that the conduct amounted to a complete indifference or conscious disregard to the rights of others and the issue of punitive damages was properly submitted to the jury. However, by finding it impossible to determine what amount, if any, of the punitive damages award entered in the verdict form applied to Bank's direct negligence, the court remanded the issue of Bank's liability for punitive damages to be determined and to enter an amount, if any, upon such determination. Consequently, in Kaplan I, the court found the issue of punitive damages based on Bank's direct negligence was properly submitted to the jury, but reversed for a finding of liability and an amount of punitive damages, if any, because of the inability to determine a finding of liability and amount, if any, from the verdict form. The reversal of the punitive damages award in Kaplan I removed any basis for determining whether or not the first jury in fact found liability for punitive damages on the direct negligence claim. As a result, on remand, the second jury should have been required to determine liability for punitive damages prior to addressing the issue of amount of punitive damages.

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Many courts nationwide will seal court records of domestic relations cases, especially for wealthy parties; Large businesses are getting into the act by seeking protective orders for information they consider trade secrets when their executives go through divorces; Missouri rule on protective orders 56.01 generally follows federal rule 26(e, though some in plaintiffs bar want stricter controls on sealing records
Law.com
The nation's courts are getting hit with a growing number of requests to seal divorce records, but not by squabbling couples. Divorce lawyers say corporations -- along with the rich and powerful -- are increasingly asking judges to seal the divorce records of top executives to protect trade secrets or crucial financial information from leaking out, or simply to avoid embarrassment.

Attorneys note that while the courts have long protected children in divorce cases by sealing records, they are now doing the same for companies, treating trade secrets, assets, stock values and executive salaries as valuable, sensitive information that needs special protection.

And with state court records now available on the Internet in 30 states, fears of data theft or data leaks are at an all-time high among businesses.

"This has become an increasingly prevalent issue," said attorney James Feldman, head of the family law practice at Chicago's Jenner & Block, who in recent years has seen a notable increase in companies intervening in divorce cases. "This year alone I've represented several key executives in divorce cases where a protective order or a confidentiality agreement had to be obtained in order to prevent information from getting out."

Feldman noted that companies fighting disclosure of financial data in divorce cases has become more popular in recent years.

"It seems like in the old days, it wasn't done that often. And in the new days, it happens all the time," Feldman said, adding that judges have become more sensitive to corporate concerns, especially "if you can show that disclosure will harm the business."

Meanwhile, attempts to restrict or limit access to divorce records have kept divorce lawyers and corporate counsel busy in the courtroom.

Most recently in California, on Oct. 17, investment giant Capital Group Cos. convinced a California judge to limit access and seal secret company information in the divorce trial of one of its executives.

Also in California, billionaire investor Ron Burkle is seeking to keep his financial records sealed in his divorce, and is appealing a March court ruling that struck down a California law allowing financial data in divorce records to be sealed. A group of newspapers is challenging that year-old law on constitutional grounds.

In New Hampshire, a new law that seals financial statements in divorce and child support cases is being challenged before the state Supreme Court by five newspapers. Associated Press v. State of New Hampshire, No. 2004-0830 (N.H.).

In Connecticut, the sealing of divorce records triggered a major controversy in 2003 when The Connecticut Law Tribune, a sister publication of The National Law Journal, discovered a "super-secret docketing system" that allowed special treatment for prominent divorce cases and other civil matters. The Connecticut judiciary passed new rules that set standards for the closing of courtrooms and sealing of materials, among them a rule requiring a judge to articulate the reasons for the closure or sealing and why they override the right of access.

FAMILY LAWYERS IRKED

On the legislative front, several states have introduced legislation in recent years to restrict public access to divorce records. California, New Hampshire and Virginia successfully passed bills limiting access. Colorado and Kentucky tried but failed to pass similar laws. And Utah and South Dakota are considering measures to limit access.

Such attempts to restrict public access to divorce documents have irked First Amendment lawyers and many family law practitioners, who argue that the proceedings are too secretive and foster the perception that the rich and powerful get special treatment in the courts.

"The desire for corporate secrecy is outweighing the public's right to know," said First Amendment attorney Susan Seager, who argued against the sealing of records in the recent California case involving Capital Group Cos. Armour v. Ritter, No. BD 390510 (Los Angeles Co., Calif., Super. Ct.). "When courts conduct private proceedings behind closed doors it creates public mistrust and suspicion."

That is what she claims happened in the divorce trial of 45-year-old Timothy Armour, an executive with Capital Group, which last month convinced a judge to partially close the divorce trial to the public and seal various exhibits and transcripts. According to court documents, attorneys for Capital Group argued that certain information, such as executive pay levels and stock awards, would hurt the company if made public.

"CGC strongly believes that it is absolutely vital to its competitive position and business interests, as well as the privacy interests of its associates and employees, that its confidential information be protected from disclosure to the public," attorney Pamela Palmer of Latham & Watkins' Los Angeles office, who is representing Capital Group, stated in court documents.

Palmer declined to comment.

Philip De Toledo, chief financial officer for Capital Group, stated in court records that disclosure of his company's financial position, stock ownership and employee compensation "would be an informational windfall" to competitors. He also argued that disclosure "would be very harmful to CGC's corporate culture and the morale of its employees."

Those claims outraged Seager, who in arguing against Capital Group on behalf of The Los Angeles Times, The Associated Press and a newspaper group, claimed that the company had no grounds to close the trial.

"An executive salary is a trade secret? I've never heard of that before. And they argued that [disclosure] would hurt company morale. That doesn't seem to be a basis for shutting down a trial," Seager said. "It's one thing to ask that part of a deposition be sealed, or a part of a record that reveals an honest-to-God trade secret ... but that doesn't mean that the guts of the trial -- the testimony, the opening statements -- are done behind closed doors."

ONLY FOR THE RICH?

Several divorce attorneys across the country echoed Seager's sentiments, maintaining that the public's right to know how divorce proceedings are conducted outweighs privacy rights. Several also expressed concern that public access to divorce records is increasingly becoming threatened.

"I think that perhaps we're seeing a lot more of this coming to light now. I also think that more people are becoming aware that divorce records are public records. And people are much more sensitive to wanting more records sealed," said divorce attorney Sharyn Sooho, founder of DivorceNet, a 10-year-old divorce consulting Web site.

Sooho believes that the public is best served with open divorce records, not closed ones.

"It should be well known to the litigants that the records are not sealed. It begins that slippery slope: 'What's too private? What's not?' We don't have to tell everything to the public to be discreet," Sooho said.

Albert Momjian of Philadelphia's Schnader Harrison Segal & Lewis said that his concern with sealing divorce records is that only the rich and powerful who can afford attorneys will have access to such privileges.

"[W]hen they're sealed, they're going to be sealed for the high-profile cases. And I don't think it's fair when people who don't have that kind of wealth can have their smut exposed," Momjian said. "Why should wealthy people get the protection that other people should get?"

Momjian noted, however, that the courts aren't always willing to help the rich. Ten years ago, when he handled the divorce of Larry King, he requested that court proceedings remain closed. The judge said no and allowed 16 reporters to come in.

"The judge said, 'This is a public forum and a public courtroom. There's no reason to do that,'" recalled Momjian.

FASTER SETTLEMENTS

From a strategic standpoint, divorce attorney Steven Lake of Chicago's Lake, Toback & D'Arco believes that an open-records policy helps divorce lawyers secure settlements faster.

He noted that when company executives know that information in court proceedings could be made public, they're more likely to settle with a spouse than risk possible embarrassment or disclosure of sensitive company information.

"I've got a woman whose husband's family is worth a billion dollars. And the fact that we're going after them and that some of this stuff may become uncomfortable is exactly the leverage I need for them to sit down at the table with us and settle the case instead of screwing around with it," Lake said.

On the other hand, Lake, who also represents companies that get tangled in divorce cases, acknowledges that not everything should be made public in divorce litigation. He said that there are ways for attorneys to get around open-records laws so that sensitive corporate material remains out of the court file.

For example, he said, divorce settlements can be drafted in a way that they don't have to be filed with the court.

"We strongly recommend that when a company receives a subpoena in a divorce case that they maintain their own counsel and come in and try to protect themselves. And I think the judges are sensitive to that," Lake said.

"I don't think it should be a secret system, but you should have the opportunity to protect children and protect people from needless public exposure, companies too," he said.

Atlanta divorce attorney John Mayoue, who has handled the divorce cases of Jane Fonda, Newt Gingrich and Halle Berry, believes that there should be a limit on the public's right to know.

Given the rise of the Internet and the looming threat of identity theft, he said that open divorce-records policies should be limited to facts of public interest, and not include any personal finances or personal matters.

"I think it's stretching the First Amendment to say that the public needs to know the balance 'John Q' has on his MasterCard," said Mayoue of Warner, Mayoue, Bates & Nolen in Atlanta.

Mayoue is currently handling several divorce cases in which he is seeking to have financial information sealed.

"My biggest concern is having persons with access to personal information that they will misuse," Mayoue said.

"A lot of courts don't like to seal. But courts will find ways to provide protection for confidential information," he added.
Article on Missouri protective orders, directed at protective orders in personal injury cases, decries that the rules only ask for "good cause" to seal records, though separate Court open records law appears to pre-empt discovery rule 56.01
"In Wright v. Campbell, the court specifically addressed the sealing of documents that a party claims contain trade secrets. 938 S.W.2d 640 (Mo.App.E.D. 1997). In that case, the court stated that a party seeking production of documents which contain trade secrets of confidential information must establish that the documents are relevant and that it has a specific need for the documents in order to prepare for trial. Id. at 643. According to the concurring opinion, Missouri Court Rule 56.01, which governs protective orders in the discovery process is modeled after Federal Rules of Procedure 26(c), and thus, federal precedent regarding the federal rule is persuasive authority for the construction of Mo.R. 56.01(c). Id. at 645 (concurring opinion of Crandall, J).

Accordingly, a party seeking protection under Federal Rule 26(c)(7) must show that the information sought is confidential and a specific harm could result from disclosure of the information. Id. In Blue Cross and Blue Shield of MO v. Anderson, the court presented 4 factors used to determine whether the information is indeed confidential, including: 1) the extent to which the information is known outside the business; 2) the extent to which the information is known to those involved in the business; 3) the extent of the measures taken to guard the secrecy of the information; and 4) the value of the information to the business and its competitors. Id. (quoting Blue Cross, 897 S.W.2d 167 (Mo.App. 1995).

The concurrence went on to state that the initial burden is on the party seeking the protection order to demonstrate that good cause exists for the issuance of a protective order, which then shifts the burden to the discovering party to establish that the documents are relevant and that it has a specific need for the documents in order to prepare for trial. Id. at 645,643.

According to Missouri Supreme Court Rule 56.01, a party attempting to be issued a protective order must only satisfy the court that good cause exists to protect the documents or information, but it appears as if the development of common law has heightened that requirement, by requiring a showing of a “compelling justification” that the records should be closed, and requiring courts to identify “specific and tangible threats to important values” in order to override the presumption of openness. Pulitzer at 301-02."

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Now you've seen everything department: members of fanatically anti-gay splinter church have been protesting American involvement in Iraq war, also claiming that casualties represent divine punishment for lenient social attitudes toward homosexuals here at home; well intentioned St Joseph area state representatives propose broad limits on protests that are near funerals, but law would likely be unconstitutional
First Amendment Center News Two St Joseph area lawmakers have proposed a bill that would make it a crime to protest at a funeral, in response to an anti-gay group that has protested at military funerals in Missouri and around the country. Legislators in Oklahoma and Indiana have proposed similar measures in recent weeks, and last month, a county commission in Tennessee adopted a policy barring protests within 5,000 feet of funeral services.But some First Amendment experts say the idea of barring such protests could be unconstitutional. Republican state Sen. Charlie Shields and Democratic state Rep. Martin Rucker, both of St. Joseph, Mo., promoted the idea on Veterans Day, citing a protest during the August funeral services of Spc. Edward Myers, a St. Joseph soldier killed in Iraq. "Quite honestly I'd never heard of anybody ever protesting a funeral. It was really pretty disgusting," Shields said.
First Amendment scholars wondered how such a bill could be content neutral.
Although Scotus in Hill v Colorado upheld picketing restrictions on abortion clinic protesters, proposed funeral protest laws would be far more restrictive. Plus there is no more sacred a cow than abortion rights in the Supreme Court.
The 8th Circuit found a Lincoln Nebraska ordinance prohibiting picketing at a church who had a member who was an abortion doctor unconstitutional as not narrowly tailored enough to protect first amendment rights and the purported interest of shielding children from offensivemessages. Ohlmer et al v City of Lincoln et al 8th Circuit 98-4112NE 1999. The 8th Cir did not feel churches were entitled to as much protection as private homes, where picketing restrictions may be stricter. Frisby v. Schultz, 487 U.S. 474 (1988)
Other funeral protest laws proposed, according to article:
In Oklahoma, state Rep. Paul Wesselhoft, a retired Army chaplain, wants to make it illegal for any person to demonstrate within 500 feet of any funeral within two hours before, during and after the ceremony. His proposed bill would make a violation a misdemeanor punishable by a minimum of 30 days in jail and a fine of up to $1,000.

In Indiana, a state senator angered over a recent protest at an Indiana soldier's funeral wants to make disorderly conduct a felony offense if it occurs at military funerals.

In 1995, a federal judge threw out a Kansas law that prohibited picketing outside funerals, saying it was too vague. State legislators later enacted a new law that spelled out the time period when such picketing is barred.
Bottom line, as offensive as protests by anti-gay activists at military funerals are, there is little chance any broad restrictions would pass, at least as to funeral ceremonies carried out in public spaces.

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Open meetings dispute with Jackson County has Mo Supreme Court assigning Cass County Judge to Hear case Kansas City Star A judge in Cass County has been asked to resolve a Jackson County matter involving the legality of some county budget meetings, the Missouri Supreme Court announced Monday. The case went to the state’s high court for assignment last week after Jackson County judges determined that they had possible conflicts of interest.The Kansas City Star contends that a series of private budget meetings between Jackson County Executive Katheryn Shields and small groups of county legislators violate the Missouri Sunshine Law (Mo Atty General Sunshine law site). Jackson County officials deny there was a violation.

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Surgeon and anesthesiologist hit for 50/50 share of $1.026 million verdict for gastric bypass patient who suffered respiratory failure when anesthesiologist removed patient's breathing tube Kansas City Star Nov 8 2005. In early 2002, Pamla Laws underwent gastric bypass surgery at St. Luke’s Hospital to treat her morbid obesity. The surgery was successful, but the aftermath was not. Like many obese people, Laws suffered from sleep apnea — a condition characterized by the cessation of breathing during sleep — and she used a machine to keep her airway clear.

Laws believed the physician who performed the surgery had assured her that a breathing tube would be kept in her airway after the operation. But the physician apparently failed to inform the anesthesiologist — a resident — that Laws was to remain intubated.

Instead, the anesthesiologist pulled the tube and Laws almost died from respiratory distress.

Last week a Jackson County jury awarded Laws, now 55, $1.026 million in damages after finding that the physicians were negligent. The jury determined that the surgeon, Thomas Helling, was 51 percent at fault and that the anesthesiologist, Melissa Vu, was 49 percent at fault.

“Dr. Helling failed to properly communicate the proper extubation directions to the anesthesiologist,” said Doug Horn of the Horn Law Firm, who tried the case with colleague Laurie Del Percio. “The thrust of his testimony was, ‘When I button someone up, I’m done.’ But the jury felt that the surgeon is captain of the ship.”

Horn said the physicians failed to take basic steps to ensure the safety of a patient with known risk factors.

The surgery was successful — at one point Laws lost more than 100 pounds — but she had to undergo a permanent tracheotomy, a procedure in which a hole is made in the windpipe, to help her breathe. Several attempts to repair the damage proved unsuccessful.

The trial lasted seven days. The jury, by a 10-2 vote, returned its verdict in two hours.

Although Horn and Del Percio asked for $1.9 million in damages, Horn said they were pleased with the outcome.

Neither physician practices in Kansas City anymore. Helling is now in the Philadelphia area and Vu moved to Jacksonville, Fla., after completing her residency.

Helling’s attorney, Tom Aylward of Horn Aylward & Bandy, said he would ask the judge to set aside the verdict.

“We do not believe the plaintiff proved a submissible case against Dr. Helling,” he said. “And if the trial judge doesn’t grant that, then I anticipate we will appeal that to the Missouri Court of Appeals.”

Vu’s attorney could not be reached for comment.

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Downside of tax cuts and a larger deficit: Stepped up IRS collection and auditing; IRS estimates that $300 billion a year of tax revenue goes uncollected, but they called capturing $47billion last year a success The Kansas City StarUnder-reporting income far exceeds over-claiming deductions as reason for missing tax revenue
Internal Revenue Service auditors are ratcheting up more enforcement machinery to snare more than $300 billion annually in taxes that Americans owe but aren’t paying, IRS Commissioner Mark Everson reports. Focusing on individual taxpayers whose incomes topped $100,000 and corporations with assets topping $10 million helped the IRS collect a record $47.3 billion in unpaid taxes in the year that ended Sept. 30, Everson reported earlier this month. Now auditors plan to look more closely at sole proprietors, small partnerships and subchapter S corporations, he said. IRS has also initiated this year special audits of high asset Subchapter S corporations and over-all tax compliance. The IRS found that of all uncollected revenue from income tax, under-reporting income was responsible for 80% of the uncollected tax revenue.

Auditing and other enforcement activities at the IRS nosedived in the late 1990s, particularly after witnesses at Senate Finance Committee hearings in 1997 and 1998 painted lurid pictures of harrowing abuses of honest taxpayers’ rights. New legislation and a Taxpayers Bill of Rights soon followed.

Some worried the new rules went beyond protecting honest taxpayers and tilted the enforcement balance in cheaters’ favor. Revenues from the audits and other enforcement actions dropped more than $5 billion between 1996 and 1999, bounced once, then twitched by less than $300 million annually until beginning another climb in 2003.

Wimpy enforcement revenues weren’t the IRS’s biggest concern, though.

The IRS basically counts on taxpayers to calculate their own taxes honestly, with some basic checks, balances and potential penalties thrown in to discourage any temptation to cheat.

So when enforcement slumped, the service worried that honest taxpayers would see others successfully ducking their fair share of taxes. And if honest taxpayers turned cynical, the IRS feared the whole honor system would be in trouble.

“We want to be sure that fairness resonates through the system,” Everson said.

So whom exactly will the IRS be watching more closely?

Everson and the service wouldn’t say, but they point to past studies that highlight where problems seem most likely to show up.

Underreporting income is the most frequent abuse the IRS encounters. Fudging on income, overstating expenses and getting too creative with deductions create about 80 percent of the money the IRS collects through enforcement. The balance is split evenly between taxpayers who don’t file and those who simply don’t pay.

Individual taxpayers represent 80 percent of the underreporting cases the IRS pursues. Most of those involve small-business income or expenses of some kind.

The upshot? Keep very good records if you file any returns in the areas Uncle Sam plans to look most closely at.

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Static funding and staffing with increasing caseload mean crisis for Missouri Public Defender system The Columbia Missourian Good article about low funding for the Public Defender system, but State should look at other cost cutting measures also. Apparently situation is so bad the Missouri Bar President has sent the hat around asking volunteer lawyers to take overflow public defender cases such as traffic tickets, game violations and improperly registered vehicles, but why were these kinds of crimes getting public defender representation in the first place?
As he sits in the Boone County Jail awaiting next week’s sentencing, John Winingar hesitates to say he has received unfair representation from his public defender. Still, Winingar, 35, arrested nine months ago for robbery and forgery, said there have been problems.

He said he usually learns about developments in his case five minutes before he appears before a judge. Budget cuts prohibit his attorney from accepting collect calls, and the direct phone line from the jail to the public defender’s office often goes straight to an answering machine.

So he has sent letters. When those phone messages and letters go unanswered, Winingar said he tries to keep in mind that his public defender has a crushing caseload — it’s a tough situation for everyone.

A Massachusetts-based consultancy hired by the Missouri Bar Association to study the state’s public defender system calls it in crisis. In a report the Spangenberg Group will present to a bar task force today, the consulting firm lists a myriad of problems that prevents the system from operating according to the principles of the American Bar Association.
I might take their reports with a grain of salt because their business is consulting for public defender services.
“Public defenders throughout the state are struggling on a daily basis with high caseloads, low salaries, frequent exodus of colleagues and low morale,” according to the report. “In short, the probability that public defenders are failing to provide effective assistance of counsel and are violating their ethical obligations to their clients increases every day.” The Spangenberg Group prepared a table listing expenditures for indigent defense in 2002.

The yearly caseload handled by the Missouri Public Defender system has increased from nearly 76,000 in the year 2000 to more than 88,000 in 2005. The legislature approved no new employees to handle the 12,000 new cases, and the department took a half-million dollar budget cut in 2004.

Now, each trial division public defender averages 298 cases each year while the state-established limit — the Ashcroft Standard set in 1989 — is 235. The department asked for a budget increase of $20 million for this fiscal year; the legislature approved an increase of $750,000.

While public defender systems across the country are generally cash-strapped, the situation in Missouri is particularly bleak. The Spangenberg Group reported that Missouri is the only statewide public defender system that failed to get funding increases for five years; the department’s budget would need to increase by $16 million to meet the average per capita spending of the rest of the southern states; and Missouri ranks 47th in the nation in per capita spending on indigent defense.

J. Marty Robinson, director of the Missouri State Public Defender system, said the numbers make it easy for lawyers to unintentionally violate Missouri’s ethics code for attorneys. “(Clients) are not getting competent, effective, constitutional representation in all cases,” Robinson said.

The Sixth Amendment of the Constitution guarantees the right to counsel. Ever since the 1963 Supreme Court decision Gideon v. Wainwright, criminal courts have had to provide attorneys for people too poor to afford private counsel in state crimes that carry a possible penalty of incarceration. Still, public defender systems throughout the nation remain underfunded.

“There is a huge disparity across the country, which really isn’t surprising if you consider political reality,” said Cathy Kelly, Missouri State Public Defender training director. “There’s not a lot of political cache in getting on the stump and saying, ‘I’m going to provide more money for providing lawyers for accused criminals.’”

The report faults the Public Defender Commission and the public defender system for failing to educate the public, engage the mainstream media and win allies in their quest for funds. The commission’s seven members are appointed by the governor to oversee the public defender system.

Robinson disagrees. “The commission has engaged the bar and the legislature,” he said. “We didn’t get here overnight. That caseload creeps up on you. We have been slow to get a serious response from the legislature.”

State Rep. Jim Lembke, R-St. Louis County, said he first heard about the public defender caseload problems two years ago as vice-chair of the appropriations committee. “Marty Robinson made it very clear to our committee that it was at a critical point,” he said.

Lembke said finding funds during tight budget years is difficult and noted that the department’s budget stayed flat through two administrations.

“It’s not a popular issue among my colleagues and the public,” Lembke said. “For the past five years, they’ve ignored the problem.”

Lembke became chair of the appropriations committee in 2005. “We had to take $70 million out of budgets this year and I didn’t recommend that one dime of that come out of the public defender budget,” he said.

He said he is open to increasing the public defender budget during the next session.

Missouri Bar Association President Doug Copeland said Robinson first alerted the bar to the problem in the spring of this year. In response, the bar asked private attorneys to donate their time to represent poor people charged with minor traffic violations.

A task force was also formed to identify long-term solutions involving Missouri State Public Defender commissioners, legislators, judges, prosecutors, Missouri Bar Association board members, representatives from the Attorney General’s office and others.

Doing the math

In 1989 Missouri formed a statewide public defender system. Then-Gov. John Ashcroft set a standard of 235 cases annually per attorney, which determined how many lawyers the state needed on the payroll.

As caseloads increased throughout the 1990s, the legislature added attorneys and then stopped in 2000 when the budget flat-lined. For fiscal year 2007, which begins July 1, 2006, the public defender system wants 124 more full-time trial division attorneys to comply with the Ashcroft Standard based on projected caseloads.

“It’s simple mathematics,” Robinson said. “The numerator in this equation is the caseload, the denominator being the lawyers that handle them.”

Although Missouri’s code of ethics for lawyers prohibits accepting new clients if doing so would compromise the quality of representation an attorney can provide, public defenders cannot refuse to accept cases assigned to them.

“The law keeps piling on the cases,” Robinson said. “You still have the same ethical duties, but there’s no way to say no.”

For example, in an office in Hannibal, four attorneys, one secretary and an investigator handled 1,692 criminal cases spread over six counties last year. That adds up to 423 cases per attorney, 80 percent more than the recommended annual caseload.

“I always fear I’m not spending enough time to be as thoroughly prepared as I should be,” said Hannibal District Defender Raymond Legg, who often works 12-hour days. “It’s crisis management. I’m running from courthouse to courthouse, jail to jail.”

The typical public defender working in the trial division, which does not include death penalty or appellate cases, Robinson said, can afford to spend an average of five hours and 38 minutes on each case, based on dividing the number of cases by total attorney work hours. Almost half of all cases represented by a public defender result in a guilty plea. Only 786 trials came out of last year’s closed caseload of 84,801.

“We would hope there would be more trials,” Robinson said, but they take more of attorneys’ time. “They have a whole file cabinet of clients they have to worry about.”

The consulting firm found that the jury trial rate for felonies in Missouri adds up to less than 1.5 percent.

Pleading guilty

Teola Wright, who is in the Boone County Jail and awaiting sentencing for felony stealing, thinks her public defender worked too closely with the prosecutor.

“When they work together, it’s what the prosecutor wants, not what I want,” Wright said.

But Wright’s case was disposed of quickly because she pleaded guilty on the advice of her public defender who managed to have one charge against her dropped. She has been in jail since Sept. 29 and will be sentenced next week.

In some instances, a defendant can get out of jail more quickly through a plea bargain or guilty plea than waiting for a public defender because of the backlog of cases since 2000.

Last year, the trial division opened 951 more cases than it closed. The year before, 2,560 cases did not get resolved and 4,849 were carried over from the year before.

“I get letters regularly about people that are sitting in jail waiting 13 months to go to trial,” Robinson said.

When clients decide to stick it out in jail, the public defenders struggle to find time to make the monthly appointments guaranteed to each client by Missouri State Public Defender guidelines.

One public defender said he visits only those people in the two closest correctional facilities in his jurisdiction, which includes 18 jails and prisons, according to an anecdote in the draft report.

“One judge commented that the court has a difficult time accepting pleas from public defender clients because, during the plea colloquy, defendants often complain about the lack of contact from the public defender,” according to the draft.

Delays don’t just harm the defendant, Kelly said. “The longer a case languishes the more likely it is that the witness might move away or the witness may die or the memory is not as clear and the added cost if they are confined of keeping them locked up that long.”

A drawn-out legal process also raises the risk that the lawyer representing the client will leave in the midst of the case, so Kelly trains the lawyers to document everything they do to ensure evidence does not slip through the cracks.

Lawyers leaving

The draft report cites two positives in the public defender system — its employees and the training they receive. “They are hard-working, overloaded with cases, underpaid and under-appreciated by management,” the draft states.

About a fifth of the system’s employees have quit in each of the past five years. The result is that the public defenders’ office has become a training ground for newly minted lawyers who then move on to more lucrative careers in private practice and even the prosecutor’s office.

“You have more and more cases handled by less and less experienced lawyers,” Robinson said. “When we replace a lawyer, it’s typically someone right from law school.”

While an attorney working in the Boone County prosecutor’s office earns $45,898 to $68,847, public defender salaries range from $33,792 to $52,452, the draft’s authors point out.

Sometimes the choice to leave is motivated by student loan debts that can reach $100,000. “I remember one lawyer, when she figured out what she had left after she paid her student loans off, she had $300 out of her paycheck to live on in a month,” Kelly said.

Prosecutors have also historically fared better in receiving student loan assistance from the federal government, though loan assistance to prosecutors has diminished in recent years, Robinson said.

To keep staff from leaving, the department wants to increase the budget to give the staff raises as well as hire more attorneys.

Meanwhile, legislators at the federal level are sponsoring bills that would, if passed, help public defenders pay off their student loans.

Lack of support

Compounding the problems of the public defender system is the lack of support staff — including secretaries and investigators.

“Look at what the state (the prosecution) has — the case is basically all worked up be it through the sheriff, the police, the FBI, the highway patrol, the CIA,” Robinson said. “Any number of government agencies investigate, take statements, pull it all together and give it to the prosecutor who might then have an investigator on their staff.”

The public defenders average one investigator per five attorneys, which means one investigator must handle hundreds of cases. “Obviously, it’s a triage,” Kelly said. “Which cases do we think are going to go to trial, which cases have the most serious consequences, those are the cases that we’re going to put some investigation resources into.”

And the scarcity of secretaries means that many attorneys “write their own letters and motions, answer phones, copy all required documents and serve subpoenas,” the report says.

The solutions the report proposes are easier said than done: Public defenders must request a large increase in funding, withdraw from minor cases, ask the state to decriminalize minor misdemeanors or sue the state.

“We have to give options to the legislature,” bar president and task force chair Copeland said. “Either they have to reduce what the public defenders are required to do or they have to increase resources.”

Last year, Lembke sponsored a bill that failed late in the session to help the public defenders decrease their caseload. Now, he is a member of the task force, which will use the report to try to persuade the legislature that the system’s needs are quite real.

Lembke said his support is purely constitutional.

“I have no great compassion for the people the public defenders are defending,” Lembke said. “We have a constitutional responsibility to defend those who can’t afford to defend themselves, to give them access to a competent defense.”

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Follow up: North Dakota seeks Scotus cert from dispute with Army Corps on Missouri River 8th Circ case BISMARCK, N.D. (AP) - North Dakota and South Dakota will ask the U.S. Supreme Court to consider whether maintaining the Missouri River's shipping channel is more important than fishing and recreation, North Dakota Attorney General Wayne Stenehjem said.
Stenehjem wants to reverse a federal appeals court ruling that concluded barge traffic along the river's navigation channel is a higher priority than other interests, including swimming, boating and wildlife management. The channel runs from Sioux City, Iowa, to St. Louis.

The conclusion was part of an August ruling that said North Dakota could not use federal and state anti-pollution laws to force the Army Corps of Engineers to keep more water in Lake Sakakawea.

The corps manages the Missouri River system. The state of Missouri, barge companies and other downstream interests have supported releasing more water from the river's reservoirs to help the shipping industry.

The Supreme Court will decide later whether to hear the case. It rejects most appeal requests, though Stenehjem said he hoped the petition would stir the justices' interest.

Federal law, and the congressional history of its development, indicates that controlling floods and providing water for drinking and industrial use are the reservoir system's most important priorities, Stenehjem believes. Other interests should be treated equally, he said.

"Navigation, game and fish, recreation, all of those things were intended to have equal priority," he said Tuesday. The 8th U.S. Circuit Court of Appeals "has no legislative history and, I don't think, any authority" to support its conclusion that navigation was a paramount interest, the attorney general said.

Montana is filing a separate brief supporting the Supreme Court request, Stenehjem said. North Dakota and South Dakota are included in the 8th Circuit, which is based in St. Louis, while Montana is part of the 9th Circuit, based in San Francisco.

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First published decision under Chief Justice Roberts, unanimous Scotus rules that time Tyson meat packing workers take to walk to their work stations after putting on uniforms and safety equipment will count against the 40 hour workweek of the Fair Labor Standards Act, however waiting for uniforms while in the locker room will not count IBP, INC. V. ALVAREZ (03-1238) The issue for the Tyson case and its companion case Barber v Tum Foods was whether the time employees spend walking between the changing area and the production area is compensable under the FLSA. The second question, which is presented only in No. 04—66 (Barber v Tum Foods), is whether the time employees spend waiting to put on the protective gear is compensable under the statute. .
Scotus Justice Stevens holds as to time between putting on equipment until reaching workstations counts as work time because any activity that is “integral and indispensable” to a “principal activity” is itself a “principal activity” under §4(a) of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA
..However as to waiting in line to get equipment to put on, time will not count: "The time spent waiting to don–time that elapses before the principal activity of donning integral and indispensable gear–presents the quite different question whether it should have the effect of advancing the time when the workday begins...unlike the donning of certain types of protective gear, which is always essential if the worker is to do his job, the waiting may or may not be necessary in particular situations or for every employee. It is certainly not “integral and indispensable” in the same sense that the donning is. It does, however, always comfortably qualify as a “preliminary” activity. Because Congress with the "portal to portal" act amendment to FLSA had emphatically stated walking time would not count {legislatively overruling Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 1946,}, the Supreme court will not consider the preliminary waiting time to put on uniforms

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Missouri Supreme Court hears arguments on State abortion cooling off period law; Planned Parenthood attorneys say law is too vague Wednesday, November 9, 2005 JEFFERSON CITY (AP) - Abortion rights attorneys argued to the Missouri Supreme Court yesterday that a state law requiring women to be counseled and wait a day to get an abortion is unconstitutionally vague (188.039, RSMo Supp. 2004). The law requires physicians to wait 24 hours to perform abortions after consulting women about "any physical, psychological or situational" risk factors. Planned Parenthood challenged the law, contending it leaves doctors unclear about when they could face charges. The case SC86768
Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., et al. v. Jerehiah W. Nixon, et al. (Supreme Court case summary)

The law is on hold after being challenged separately in federal court. A federal judge issued a preliminary injunction in June 2004, and the state appealed that order.

The appeals court has not yet ruled.

The state lawsuit also was filed in June 2004. A Boone County Circuit Court judge upheld the law against the vagueness challenge, prompting Planned Parenthood’s appeal to the state Supreme Court.

Planned Parenthood attorney Mimi Liu told the state’s highest court yesterday that doctors would have to discuss an "infinite array of factors" with patients seeking an abortion to be in compliance.

"It does not put the doctors on notice on what is required by law," she said.

Supreme Court Chief Justice Michael Wolff and others, however, suggested during questioning that while doctors likely could be held liable for not discussing abortion risks with patients, it would be difficult to prosecute doctors who counsel their patients.

An attorney for the state, Victorine Mahon, argued the law is constitutional because it implies that doctors should use their best medical judgment in determining which factors need to be discussed.

"A statute doesn’t have to be a model of clarity" to be upheld, she said.

Planned Parenthood said that if the state Supreme Court rules in its favor, the federal challenge will be moot. Planned Parenthood can return to federal court to pursue its clams if the high court rules for the state.

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Employers must know the facts, fiction of the Fair Labor Standards Act, what you dont know can hurt you: FLSA
Misconceptions about law remain common The News-press October 31, 2005

The Fair Labor Standards Act (FLSA) — also called the "wage and hour" law — mandates a federal minimum wage for all non-exempt employees and time-and-a-half overtime pay when those employees work more than 40 hours in a single workweek. State and local laws may also apply. For example, the minimum wage in Florida is $6.15 per hour, which supersedes the federal minimum wage of $5.15 per hour. Misconceptions about complying with the act are common, and listed below are facts and fallacies related to the law. The minimum wage in Missouri equals the Federal minimum wage 290.502 RSMo.

Fact

• Most employers have to comply with this law due to the broad "interstate commerce" interpretation by the Department of Labor (DOL) and the courts.

• Complying with the FLSA is not an option — it's the law.

• The FLSA requires detailed record-keeping and retention of payroll information.

• An employee's exempt or non-exempt status is determined by "duties tests" detailed in the act, not by the employee's experience, education, pay or job title.

Fiction

• My company is too small to have to worry about this law. As stated above, because of the broad definition of "interstate commerce," most employers have to abide by the FLSA.

• I can adjust an employee's hours to avoid paying overtime. An employer can ask an employee to adjust hours during the work week, and overtime pay will not be required. However, the employer may not ask an employee to adjust hours in a subsequent work week. 29 C.F.R. 778.114)

• I don't have to pay overtime to employees who come in early or stay late when I haven't asked them to do so. It doesn't matter why employees come in early or stay late. If someone asks them a work-related question, they answer a customer phone call or simply start or finish work, an employer must pay the employee at time-and-a-half for any hours worked more than 40 in a workweek. 29 CFR 778.223

• All of my managers are exempt from this law because I pay them a salary. The DOL doesn't care what employees are called or whether they are paid a salary. What matters is that the employee meets the narrow "duties tests" detailed in the act; therefore, all employees should be considered non-exempt until proven otherwise.

• I don't have to pay overtime because my employee prefers to have time off rather than the extra pay. Compensatory time off is allowed only in the public sector, and must be at a rate of one-and-a-half hours off for each hour of overtime worked. Private employers may not allow employees time off in lieu of overtime pay. 29 U.S.C. 207(o)

• I don't have to pay overtime because my employee says he doesn't want extra pay. Employees cannot waive their right to overtime pay.

The FLSA is a complex law and non-compliance may result in fines and penalties running into the thousands of dollars and beyond; consult an attorney or human resources professional with questions. The DOL Web site also offers a wealth of information at http://www.dol.gov/elaws/flsa.htm.

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MoApp ED reverses conviction on second count of robbery first degree where defendant held weapon at bank teller who emptied his cash drawer but also absent teller's drawer; Court holds this violates double jeopardy, and even though defense counsel did not properly make constitutional objection, court could find error and reverseState of Missouri v. Gridiron ED84435 11/08/2005 Appeal From: Circuit Court of St. Louis County Chancell Gridiron appeals the judgment upon his jury conviction of two counts of first-degree robbery and two counts of armed criminal action. Gridiron argues the trial court erred in submitting a second count of first-degree robbery and the related second count of armed criminal action because there was insufficient evidence to support the conviction and, therefore, violated his right to be free from double jeopardy. AFFIRMED IN PART; AND REVERSED AND VACATED IN PART.
Division Two holds: There was no evidence that property was taken forcibly from the second person as required under section 569.020, RSMo 2000. Gridiron was convicted improperly of two counts of first-degree robbery and the conviction was in violation of the prohibition against double jeopardy.
court determines what the unit of prosecution should and if the state has split the unit ofprosecution, it violates the def/s double jeopardy rightswe find the count of first-degree robbery and armed criminal action charge involving Stapleton violated Defendant's right to be free from double jeopardy where it was based on one act of force directed to (the only teller at the windows.)
Court distinguishes Eason v. State, 52 S.W.3d 24 (Mo. App. E.D. 2001) where Def committed 2 robberies by forcing victim to give up property and the property of a relative in another room The State in Eason charged the def with a 2nd count of second-degree robbery; robbery 2nd degree does not require proof of the use of a weapon. In the present casethe Def did not display any weapon to the (teller who had run out of the building to call police.) More importantly, Eason was clearly aware of the (other victim's) presence, knew exactly where she was, and knew she had control over the property.
concurring Judge Cohen finds the def counsel made enough of his objection to the added robbery count to preserve the constitutional objection for review; but also criticizes the Eason ruling; Here defense counsel specifically objected to the indictment on double jeopardy grounds as soon as counsel became aware of the existence of the superseding indictment. Defense counsel's objection was unmistakably framed as a double jeopardy challenge: "two robbery in the first degree counts have been created and they were created to separate a forcible stealing…."our decision in Eason should not be followed. Missouri courts have long held that the "distinctive characteristic" of the crime of robbery is "violence to the victim." State v. Hayes, 518 S.W.2d 40, 45 (Mo. 1975). Thus, the appropriate "unit of prosecution" for double jeopardy purposes is the person who is subject to the force.To the extent that Eason can be construed to hold otherwise, it is wrongly decided.

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Federal jury in Wisconsin orders Clayton based Smurfit-Stone to pay $3.7 million to former partner for misusing information on making pet food bags ST. LOUIS POST-DISPATCH
10/18/2005 A federal jury in Madison, Wis., has determined that Smurfit-Stone Container Corp. should pay more than $3.7 million to Super Group Packaging & Distribution Corp. for illegally using Super Group's proprietary information about bag making.
Super Group, a maker of woven, non-paper bags in northern Wisconsin, said the jury in U.S. District Court reached its verdict Friday. Smurfit-Stone has headquarters in Clayton and Chicago.

The dispute arose out of a five-year contract reached last year between the two companies in which they agreed to work together to import woven polypropylene bags from Asia and then set up domestic production of the bags, Super Group said.

Super Group sued Smurfit-Stone for breaching the contract by illegally using proprietary information to "jump start" production on its own.
"We are disappointed with the verdict," a Smurfit-Stone spokesman said. He said Smurfit-Stone is evaluating post-trial options.

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Mo Gaming Authority denies license to Ky company that would purchase bankrupt Admiral Casino; Creditors cry foul and blame result on politics ST. LOUIS POST-DISPATCH Sunday, Nov. 06 2005

A tax audit, a DUI and some charges on a credit card might be behind Columbia Sussex Corp.'s failure to secure a Missouri casino license, a group ofcompanies claims in a court motion. The motion sheds light on what - or who - killed the Kentucky company's plan to buy out of bankruptcy the President Casino on the Admiral, which operates onthe Mississippi riverfront downtown. The claims, that the license bid failed for "flimsy" reasons, also raise
questions about how Missouri decides who can and can't run a casino in the state.
The motion was filed Thursday in Bankruptcy Court in St. Louis by a committeeof creditors of the President Casino. It claims that Missouri Gaming Commissionstaff planned to advise the commission to deny Columbia Sussex a licensebecause of four red flags:

- An audit by the Internal Revenue Service on the 2000 federal income taxreturn of Chairman and Chief Executive William Yung.

- A "driving under the influence type" conviction of the son of a 20 percentowner of a Columbia Sussex casino in Mississippi.

- Discrepancies surrounding Yung's residence. He "has homes in both Kentuckyand Florida and has sometimes listed his residence being in Kentucky and othertimes in Florida."

- Yung's practice of using his corporate charge card to buy personal items.

"We were flabbergasted by these reasons, and we continue to be, and that's thetruth," said David Warfield, an attorney representing the creditors group. Thegroup said Columbia Sussex officials notified it last month of the four reasons.

Last year, Columbia Sussex outbid Pinnacle Entertainment Inc. in an auction forthe President Casino. Columbia Sussex, a privately held company that's knownmostly as a hotelier, planned to buy the casino for $57 million and replace itwith a new boat a few blocks south on Laclede's Landing. The negotiations withthe city about the new boat were thorny at times, but a compromise was reachedin September.

Then, in a surprise move last month, Columbia Sussex backed away from the dealamid reports that the Missouri Gaming Commission was about to deny itsapplication for a casino license.

Columbia Sussex has declined to talk about the matter. But in an Oct. 24letter, an attorney for the company said Columbia Sussex learned inmid-September that its license application was in jeopardy.

"When we were advised of this stunning development, we were told that therewere four issues," wrote attorney Gerard T. Carmody in a letter to thePresident and its creditors.

Columbia Sussex initially tried to persuade Gaming Commission staff that itsconclusions "were completely incorrect," Carmody wrote, but soon decided itsefforts were futile and withdrew the application.

The Gaming Commission has declined to discuss any details of Columbia Sussex'slicense application.

If the creditors' claim is correct, the Gaming Commission staff based itsfinding on "minor" infractions, said the Rev. Richard McGowan, a professor atthe Carroll School of Management at Boston College who follows the gamblingindustry.

"Drunk driving? Are you kidding me?" McGowan said Friday. "The income taxissues make a little more sense, but it still sounds like the Gaming Commissionis stretching. ... It sounds like the commission wants to put a bankrupt casinoout of business."

When deciding on a license application, the Gaming Commission works off a listof criteria, ranging from a company's financial suitability to its executives'integrity.

Despite the written criteria, "it's ultimately a judgment call for thecommission," said Executive Director Kevin Mullally.

Typically, the commission investigates a company's finances, its business planand the criminal and tax records of management. In the case of Columbia Sussex,the investigation ran nearly a year.

"The bar is high, and that's what the people of Missouri want. The people don't
want their casinos to have a shadow of doubt," Mullally said. But "we don'thave an agenda of any kind. We're not for or against any applicant. It's cold,hard analysis of their conduct."

When asked whether the four reasons would be enough for a license to be denied,Mullally said: "That's not sufficient explanation for me to even make ajudgment. We have a thick file for each application. I need a lot moreinformation than just one or two sentences."

But Warfield said the four reasons are enough to warrant a deeper look at theprocess. The attorney said he's obtained files on Missouri's operating casinosand found managers with drunken-driving convictions and tax audits.

"The (licensing) rules are by nature very flexible, but they still can't beapplied in a arbitrary and capricious way," Warfield said.

In its motion, the Committee of Unsecured Creditors for the President is asking
a bankruptcy judge to compel the Gaming Commission to open its files and to
have its staff submit to questioning. The commission probably would fight the
motion, Mullally said.

The St. Louis Post-Dispatch is a creditor of the President and has filed claims
for $69,000.

In the motion, the creditors also tackle each of the four reasons identified byColumbia Sussex. In particular, Yung is contesting the audit, and no criminalcharges have been brought by the IRS, the motion said.

Yung did not return a phone call Friday.St. Louis officials, meanwhile, have expressed only mild disappointment about
Columbia Sussex's decision to withdraw, saying that the city was more focused on a $400 million casino complex that Pinnacle plans to build a few blocks from the President.

That type of environment leads some casino industry observers to question thelicensing process.

"It sounds to me like, 'Let's help Pinnacle out. Now, how do we do it? Oh, wedo it by rejecting this license," said William Thompson, a professor of publicadministration at the University of Nevada, Las Vegas and author of severalbooks on the gambling industry. "Those reasons are minor."

While the motion raises questions about the Gaming Commission, attorneyWarfield said he's open to hearing a different version of the story from thatbody. "It's important to remember that we haven't heard the commission's side of the story."

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Appellate-Post conviction counsel for death row inmates face a minefield of deadlines and issues when handling these cases; Missouri has tried to join states whom the Federal Courts will allow an even more expedited habeas corpus review system, but Missouri has not yet qualified because the state has not provided for adequate representation for death row inmates; Query: why not train these corporate law firm attorneys to try the cases, thereby leaving fewer holes these brilliant attorneys can poke into these cases on appeal/post conviction? Experts: Too few 'learned counsel' to handle death penalty cases Associated Press ST. LOUIS - One day in April 1995, attorney Joanne Descher learned she'd been appointed to represent a Missouri prisoner in his federal appeals of first-degree murder convictions that carried a death sentence. Descher, practicing securities law at the time, didn't know anything about the highly specialized body of law and procedure known as habeas corpus, the crux of her client Marlin Gray's federal appeal. Few lawyers know this odd hybrid of civil and criminal law, which is complex, time-consuming, and not at all lucrative.

"It's an expertise that's hard to come by," said James Woodward, federal court clerk for the Eastern District in St. Louis, which assigned Descher the case.

In fact, few lawyers volunteer for defense in death penalty trials or appeals because they are economically and emotionally demanding, and not financially rewarding, said Sean O'Brien, one such defender since 1983.

O'Brien heads the nonprofit Public Interest Litigation Clinic and is visiting professor at the University of Missouri-Kansas City law school.

O'Brien said it's a "horrible idea" for civil law practitioners to be thrown into habeas corpus, where federal courts examine state court proceedings for constitutional problems. He said it is a complex specialty fraught with procedural land mines that trip up even skilled lawyers and may cause a client to lose a case. And, they're up against seasoned specialists in the attorney general's office.

"There are a thousand ways to accidentally lose a case," he said.

Legal experts in Missouri and around the U.S. say a 1996 federal law left prisoners with even fewer avenues for habeas corpus relief as Congress responded to calls to speed up the death penalty process.

The Anti-Terrorism and Effective Death Penalty Act of 1996 severely restricted the legal basis for arguing that lower court proceedings should be reviewed for constitutional errors.

It shortened deadlines and limited what federal courts could consider for a second look at a case.

"People think there's all these legal loopholes in getting a conviction set aside, but the reality is it is government that has all the loopholes and procedural barriers," said Richard Sindel of St. Louis, one of a small pool of Missouri attorneys considered to be the caliber of "learned counsel" required in a 1988 law for federal death penalty cases.

"You rarely are able to present the issues of the case. The law sets up all these barriers."

The Effective Death Penalty Act of 1996 also permits states to speed up the flow of death penalty cases by opting into an expedited litigation schedule - but only if the states improved the level of defense at capital trials. O'Brien said Missouri has tried to become an "opt-in" state, but so far hasn't produced the needed reforms. In Hall v Luebbers, the 8th Circuit held that MO rule Crim Pro 29.16 did not meet the Federal Standards as an opt-in state, 28 U.S.C. § 2263(a).

"A lot of these cases have real problems with proficiency of counsel. Arguments are not made, leads are not followed through, objections are left out," said David Elbaum, a New York civil lawyer appealing the murder conviction and death sentence of Reginald Clemons, Marlin Gray's co-defendant in the 1991 murder of two young women at an abandoned Mississippi River Bridge in St. Louis.

Elbaum and two other attorneys, including a former federal prosecutor, were recruited for Clemons' pro bono defense by the NAACP Legal Defense and Educational Fund.

Ronald Tabak, pro bono coordinator for the Skadden firm of New York, said civil attorneys should do habeas corpus petitions in capital cases "only if" they are extensively trained and mentored by experts in criminal and capital law.

Descher got Marlin Gray's case because she had agreed to take some pro bono cases as a condition of being admitted to the federal court bar here.

Federal clerk Woodward said most federal judges in St. Louis are impressed by civil attorneys' vigorous representation of their criminally charged clients.

Descher said she dove into the Gray case, found mentors and speed-learned the law. She also leaned on co-counsel Kent Gipson in Kansas City, who had experience in federal habeas corpus petitions.

"I realized the magnitude of the appointment, that it was a life and death situation," she said. "I had to try the best I could."

After a 10-year haul, the appeals were unsuccessful, and Gray was executed on Oct. 26.

On Monday, spokesman Scott Holste said the Missouri Attorney General's office was within weeks of asking the Missouri Supreme Court to set an execution date for Clemons. His attorneys said they will continue his appeals.

Descher, who now practices civil, commercial and family law, isn't sure she'd accept another death penalty case.

"Professionally it was challenging, but it changed me as a person," she said.

"I got a firsthand look at what the process is of trying to rectify wrongs that occurred at trial, and found it so very, very difficult to do, so difficult to achieve justice."

She said so many points were barred from consideration that she found herself less ambivalent and more opposed to the death penalty by the time it was all over.

"I have no confidence in how the death penalty is administered," she said. "There are too many mistakes made, too much room for error."

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Volvo Heavy Truck Corporation appeals verdict against it from 8th Circuit to Supremes on Robinson Patman Act action Associated Press A western Arkansas truck seller went before the U.S. Supreme Court on Monday to argue that Volvo's heavy trucks division discriminated against it by favoring dealers with whom it directly competed. Reeder-Simco GMC Inc. sued Volvo Trucks North America and told justices Monday it should have been entitled to the same discounts made available to other dealerships. It said Volvo, amid a plan to reduce the number of its franchises by 50 percent, raised Reeder-Simco's sales objectives at the same time it reduced the discounts available to it.

A federal judge ruled for Reeder-Simco and, in a split decision, the 8th U.S. Circuit Court of Appeals agreed. Justices this year agreed to hear the case.

Reeder-Simco alleges a violation of the Robinson-Patman Act of 1936, which was passed to protect mom-and-pop stores from advantages held by large supermarket chains. The Fort Smith truck dealer said Volvo tried to drive it out of business by withholding discounts.

Volvo has argued that Reeder failed to prove it was in direct competition with other dealers to whom it had given greater discounts.

Reeder said that in a case involving a potential sale to a Missouri dairy, it lost the deal because a Missouri firm received a larger price concession.

Reeder-Simco lawyer Carter Phillips of Washington said the justices showed interest in transactions where Reeder-Simco had deals contingent upon a certain discount from Volvo.

"The customer would say we'll pay you $64,000 for that truck and I need an 8 percent discount from Volvo. Volvo comes back and said you'll get 4, and they (the customer) walked. There were literally more than 1,000 cases like that on the record," Phillips said.

"But because those sales were not to the same customer, Volvo argued it was not competition under the anti-trust laws," Phillips said. "They want to say competition is just when you're selling to the same customer."

Volvo's lawyer did not immediately return a telephone call seeking comment.

The case is Volvo Trucks North America v. Reeder-Simco GMC Inc., 04-905.

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MoApp ED affirms jury verdict from STL City Circuit Court against physicians who failed to recommend surgery to correct patient's abdominal distress; Court upholds Pl physician's standard of care language; ED refuses to apply joint and several liability rules for MedMal defendants who were dismissed because the Plaintiff did not serve them. Wicklund,v. Handoyo, M.D. & Singh, M.D., #ED85595 11/01/2005 Appeal From: Circuit Court of the City of St. Louis, Hon. Dennis M. Schaumann Defendant physicians appeal the trial court's denial of post-trial motions after a jury found them: liable of negligence for failing to obtain a surgical consult while treating Carl Wicklund's son for a colon infection; in violation of the appropriate standard of care for doctors; and the cause of Wicklund's son's death. Affirmed.
....
MAI11.06 defines negligence as "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant's profession;" this statement must appear in the expert's testimony. Ladish v. Gordon, 879 S.W.2d 623, 634 (Mo. App. W.D. 1994)...Pl's expert doctor paraprashed the standard of care as ""the strict definition of standard of care is what a reasonable and prudent physician would do in similar circumstances. What I think that standard of care really means is what's sensible care, what's good for the patient."
ED holds this is close enough to meet MAI11.06 standards"Dr. Cooperman sufficiently defined the standard of care, albeit imperfectly, when he stated: "the strict definition of standard of care is what a reasonable and prudent physician would do in similar circumstances."
...
Pl physician gave sufficient evidence for causation to beat Defs' JNOV motionFor failure-to-diagnose cases, expert testimony must establish causation, ie "there is a reasonable degree of medical or scientific certainty" that defendant's negligence caused the harm. Wollen v. DePaul Health Center, 828 S.W.2d 681, 682 (Mo. banc 1992). But an expert's uncertain opinion that treatment might or could have yielded a certain result, fails to establish causation. Baker v. Guzon, 950 S.W.2d 635, 646 (Mo. App. E.D. 1997).
Dr. Cooperman unequivocally testified that, as a surgeon, he would have recommended surgery, and further, that David more likely than not would have survived the surgery...our standard of review is whether the plaintiff has made a submissible case. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 338 (Mo. App. E.D. 2000) 37 S.W.3d at 338. ED concludes causation expert testimony was sufficient: "Even though he could not say that surgery absolutely would have saved David's life, he clearly stated that there was "an overwhelming probability" David would have survived, had the surgery been performed...The testimony moreover was not "inherently self-contradictory," Odum v. Cejas, 510 S.W.2d 218, 223 (Mo. App. 1974) to render it unreliable."
...
No apportionment of fault to defendant physicians whom the PL sued but allowed the court to dismiss because the Pl did not serve them
The ED App court finds the trial court correctly refused to allow the jury to apportion fault to (unserved physician-defendants) because Section 538.230(1) does not apply to parties named in the original petition, but not "released" pursuant to Section 538.230(3).

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Defendant convicted of 4 counts statutory sodomy, first degree 566.062, RSMo 2000 and child molestation first degree 566.067 made untimely confrontation clause objection to State's offering section 491.075.3 statements of victims; raising issue in motion for new trial was too late. State of Missouri, v Blair, ED84888
11/01/2005 Circuit Court of the City of St. Louis, Hon. Julian Bush. Defendant appeals from the judgment of the Circuit Court of the City of St. Louis, following a jury trial. Defendant was sentenced as a persistent offender to twenty years imprisonment for each count of statutory sodomy in the first degree, ten years imprisonment for child molestation in the first degree, and three years imprisonment for sexual misconduct involving a child, all sentences to be served in the Missouri Department of Corrections and to run concurrentlyAFFIRMED.
In order to preserve a constitutional issue for appellate review, a party must (1) raise the issue at the first available opportunity, (2) note the constitutional provision claimed to be violated by specifically referencing the article and section of the constitution or by quoting the constitutional provision itself, (3) state the facts that constitute the constitutional violation, and (4) preserve the constitutional issue throughout the proceeding. State v. Williams, 904 S.W.2d 103, 105 (Mo.App.E.D. 1995) quoting State v. Hillis, 748 S.W.2d 694, 697 (Mo.App.E.D. 1988). When a constitutional issue is raised for the first time in a motion for new trial, it is not preserved for review. State v. Belcher, 805 S.W.2d 245, 251 (Mo. App.S.D. 1991).
In this case, the earliest opportunity Defendant could have raised his constitutional challenge to section 491.075.3 would have been on April 1, 2004, after the State filed its "Notice of Intention to Use Statements Under 491.075.3 RSMo." The record reflects that Defendant not only failed to raise his constitutional challenge at that time, but also failed to raise it during the pretrial hearing on the admissibility of the videotape. In addition, Defendant failed to raise the constitutional challenge when the State moved to admit the videotape at trial. Because Defendant raised the constitutionality of section 491.075.3 for the first time in his motion for new trial, it is not preserved for our review.

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Federal court reverses summary judgment that was in employer's favor in military discrimination case Maxfield v. Cintas Corp. No. 2 Case No. 04-2979 Eastern District of Arkansas Associated Press— 8th Circ upholds summary judgment against Arkansas black salesman who claimed racial and military discrimination as the reason he was fired from his job on his race discrimination claim but reversed the trial court's summary judgment on his military discrimination claim.38U.S.C. § 4301 et seq.
On race discrim claim, Dist and 8th Cir assumes that Plaintiff had stated a Green v McDonnel Douglas prima facia case; but Pl failed to offer evidence either to rebut employers non-discriminatory reason or that adverse action was purposeful discrimination District court did not err in granting employer's motion for summary judgment on claim plaintiff was transferred on the basis of his race because plaintiff failed to show that the nondiscriminatory reason stated for his transfer - failure to meet sales goals - was a pretext for race discrimination (McDonnell Douglas v. Green, 411 U.S. 792, 805-06 (1973)); nor did the court err in
granting summary judgment for the employer on the claim that plaintiff was discharged on the basis of his race as he failed to present any evidence that he was discharged because of his race; even if the grounds stated for the discharge were false, a plaintiff must still prove that the real reason for the discharge was race discrimination, and plaintiff failed to do this St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993),; however, the district court erred in granting the employer summary judgment on the claim that plaintiff's transfer violated the Uniform Services Employment and Remployment Rights Act, as plaintiff presented sufficient evidence to show that his military status was a motivating factor in the decision. 8th Cir notes that Pl burden of proof is lower for showing an employer has taken adverse action against him , against the USERRA
"Unlike the McDonnell Douglas framework [utilized in Title VII
claims], the procedural framework and evidentiary burdens set out in section 4311
shift the burden of persuasion, as well as production, to the employer." Id. at 854.
Under USERRA, an employee must make "'an initial showing . . . that military status
was at least a motivating or substantial factor in the [employer's] action.'" Gagnon v. Sprint Corp., 284 F.3d
839, 852 (8th Cir. 2002) (Gagnon), abrogated on other grounds, Desert Place, Inc. v.
Costa, 539 U.S. 90 (2003). (quoting
Sheehan v. Dep't of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001) (Sheehan)). If the
employee makes such a showing, "'the [employer] must prove, by a preponderance of
evidence, that the action would have been taken despite the protected status.'" Id.
(quoting Sheehan, 240 F.3d at 1014)."
...The employer took the adverse action close to the time the Pl took another military leave. Also the court noted some inconsistencies in the employer's explanations for its procedures regarding taking leave and whether employees on duty were allowed to also take paid leave. Maxfield said Cintas terminated him for incorrectly documenting days he took off for military leave. The high court ruled that Cintas now has the burden to prove that it would have terminated Maxfield even if he had not been in the military.

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Defendants who plead guilty to tax evasion, marriage fraud, and hiring illegal immigrants for Mexican grocery store and restaurants asked Federal Judge in Cedar Rapids to recuse herself because her husband owned stock in Wells Fargo,{value about $48k} to whom the defendants owed $750K on a loan; Judge denies motion to appoint a new judge in marriage fraud case; but if the Judge was worried about the effect on Wells Fargo stock wouldnt she want the defendants to get paper, so they could keep paying the loan? CEDAR RAPIDS (AP) --- A federal judge has denied a motion asking her to step away from an illegal immigrant and tax evasion case because her husband owns stock in a Wells Fargo Bank that holds loans for the defendants. U.S. District Judge Linda Reade on Monday denied the request made by Jesus Ibarra-Castaneda and Luis A. Varela-Arteaga, the former owners of the Hacienda Las Glorias and Casa Las Glorias restaurants. Attorneys for both men asked Reade to recuse herself from the case to avoid any appearance of conflict of interest.

Reade's husband owns 800 shares of Wells Fargo stock, valued at less than $50,000. The bank also holds business and personal loans for the two defendants.

In denying the request, Reade wrote that the 8th U.S. Circuit Court of Appeals has been reluctant to require judges to step away from every case that could impact companies in which judges are stockholders. In Kansas Personnel Retirement System, 8th 1995 {court refused mandamus to remove judge who happened to own stock in company that was not a party to the case, eg owning GeneralMOtors or Microsoft}

Ibarra-Castaneda has pleaded guilty to income tax evasion and knowingly hiring illegal immigrants. He also pleaded guilty on behalf of the restaurant corporations to harboring illegal immigrants and knowingly receiving false resident alien cards from employees who were illegal immigrants.

Varela-Arteaga has been convicted of conspiracy to commit marriage fraud, of aiding and abetting marriage fraud for arranging marriages between restaurant workers and Mexican nationals.

He also has pleaded guilty to filing a false tax return and knowingly hiring undocumented immigrants.

The two men owned restaurants in Cedar Rapids and Waterloo and owe Wells Fargo about $750,000, their attorneys said.

Sentencing was scheduled for last week but has been rescheduled for Nov. 18.

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