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Number of Supreme Court handdowns dips to lowest level since at least 2001

Nicholas Phillips and Scott Lauck//December 28, 2018//

Number of Supreme Court handdowns dips to lowest level since at least 2001

Nicholas Phillips and Scott Lauck//December 28, 2018//

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It’s been a slow year for the Missouri Supreme Court.

As of the court’s last scheduled handdown of the year on Dec. 18, the high court had issued 63 written opinions. It is the lowest calendar-year total since at least 2001, according to a database of Supreme Court opinions maintained by Missouri Lawyers Media.

The high court’s previous lows were in 2016 and 2011, when it issued 69 opinions. Its average annual output over the past 18 years is 83 opinions.

The last six months have been particularly slow — 26 opinions between July and December, compared with 37 in the first half of the year and 39 in the same period last year.

Because the court operates behind closed doors between argument and opinion, there’s no telling what’s preventing the court from getting more cases out the door. But it could be a sign that the judges are having a particularly tough time reaching consensus. Of those 63 cases for the year, 37 percent featured a dissent. In an average year, only a quarter of cases result in a split.

Just seven of those 23 split cases occurred in the past six months. Meanwhile, the court has 36 cases that await a ruling following oral arguments in 2018. The court’s longer-pending cases include a challenge to Missouri’s 72-hour waiting period to obtain an abortion that was argued in January; a dispute regarding the proper venue for a mass lawsuit about talcum powder argued in February; and two cases involving anti-discrimination protections for LGBT Missourians argued in April.

In other words, more split decisions are likely to come in the next few months.

Still, the Supreme Court and the state’s other appellate courts have made a few splashes in the past six months, with decisions on issues ranging from recent changes to tort law to the rights of tenants. For reviews of cases in the first half of 2018, please see our Major Opinions section in the July 9 issue.123118MOLW.indd


Tort law

Missouri’s Republican-led legislature overhauled the state’s tort laws in 2017, raising legal questions that now are starting to reach the Court of Appeals. In most instances, the courts have held that the recent changes don’t apply to cases that arose before the law’s effective dates. More clarity on these laws is sure to come.

In July, the Western District took a first, limited look at a recent law that lets insurers intervene in so-called 537.065 agreements, which are used to resolve litigation in which an insurer has declined to fully defend the defendant. The court said an insurer couldn’t jump into a case that led to a $6.9 million judgment because the agreement was reached and tried before the law’s effective date. The case is Desai v. Seneca Specialty Insurance Co., WD81220.

In August, the Eastern District reviewed Missouri’s new standard for expert witnesses — though in the context of criminal cases, rather than the civil litigation that lawmakers had in mind when they tightened the standard. The case is State ex rel. Gardner v. Wright, ED106935.

In December, the Eastern District held that, despite an amendment to the collateral source rule meant to prevent plaintiffs from winning “phantom damages” at trial, the new language does not bar plaintiffs from introducing the full amount they were billed for their medical care. The case is Brancati v. Bi-State Development Agency, ED106359.

Also in December, the Western District said the new “motivating factor” standard in the state’s employment-discrimination laws doesn’t apply retroactively. The case is Bram v. AT&T Mobility Services LLC, WD81538.

Also, the Eastern District recently looked at an earlier effort by lawmakers to clarify worker’s compensation law. The court in September affirmed a jury verdict against a co-worker from the first case to go to trial involving a 2012 state law that redefined when co-workers are liable for injuring their fellow workers. The case stands as a counterpoint to a series of rulings in the Supreme Court emphasizing that employers are responsible for workplace accidents that are reasonably foreseeable. The case is Brock v. Dunne as defendant ad litem for Edwards, ED105739.



Speaking of discrimination laws, the appeals courts recently concluded that two state agencies can’t be sued under the Missouri Human Rights Act, though for different reasons. In State ex rel. Naugles v. Missouri Commission on Human Rights, WD81135, the Western District ruled that Missouri’s prisons don’t count as “places of public accommodation.” And in Jordan v. Bi-State Development Agency, ED106158, the Eastern District said the then-differing standards for discrimination claims in Missouri and Illinois doomed a suit against an interstate compact agency.

The Missouri Supreme Court, meanwhile, has had up-and-down rulings on arbitration. In December, the court compelled arbitration for an employee’s claim, despite precedents that say arbitration contracts can’t depend on at-will employment. The case is Soars v. Easter Seals Midwest, SC97018. On the other hand, in a non-employment context the court declined to compel arbitration for a payday-loan borrower because the arbitrator designated in the contract had gone out of business. The case is A-1 Premium Acceptance Inc., v. Hunter, SC96672.


Medical Malpractice

Two cases offered guidance to future plaintiffs and defendants in med-mal cases. In Shallow v. Follwell, SC96901, the high court ruled that the testimony at trial by five defense witnesses was not, as the plaintiff claimed, cumulative and therefore prejudicial. The court found that while the witnesses’ testimonies overlapped at times, each testified about their own specialties.

In another med-mal case — Eoff v. McDonald et al., ED106265 — the Eastern District ordered a retrial because the plaintiff’s counsel had not been allowed to ask potential jurors what they knew about the defendant doctor’s insurer. That insurer was a small company located on the other side of the state, but no matter, the judges ruled: The improbability that a prospective juror has an interest in the insurer does not justify blocking a plaintiff from asking the question, provided it is properly asked.


The higher courts also delivered a pair of wins to utility companies. In July, the Supreme Court ruled in effect that an electricity company seeking a “line certificate” — that is, permission to merely run electricity through counties or municipalities without serving the residents there — did not need those subdivisions’ consent in order to obtain approval from the state’s Public Service Commission. That case was Grain Belt Express Clean Line LLC et al. v. Public Service Commission, SC96993.

The following month, judges in the Western District decided that electric-vehicle-charging stations set up by Kansas City Power & Light did, in fact, constitute “electric plants.” The judges thus greenlighted a utility’s ability to include charging stations when calculating its rate base, or the value of its hard assets. The rate base, in turn, determines in large part how much customers pay for service. That case was In the Matter of: Kansas City Power & Light Company’s Request for Authority to Implement a General Rate Increase For Electric Service v. Missouri Public Service Commission and Midwest Energy Consumers Group, WD80911.



The high court brought closure to a multi-year controversy over captive cervids, the family of animals that includes deer and elk. In July, the judges affirmed the statutory authority of the state wildlife commission to regulate private preserves dedicated to the breeding and hunting of cervids. The judges interpreted the term “resources of the state,” which the commission oversees, to plainly and unambiguously refer to all members of wild species inside the geographical boundaries of Missouri, not solely the individuals within those species that roam free. The case is Hill v. Missouri Department of Conservation, SC96739.

In U.S. v. Bagley, 17-2382, the 8th Circuit vacated the award of $1,000 for a man whose 4-year-old terrier, named Mister, died after the vehicle in which he was riding was carjacked in Kansas City. The appeals judges ruled that his victim-impact statement was not enough evidence to support restitution to cover his loss.



Much of the work of appellate courts is refining the procedural rules that govern cases. That was certainly the case in the past six months, on matters great and small.

Under longstanding caselaw, a tenant who claims a rented property is uninhabitable either had to vacate the property or else let the court hold the unpaid rent in escrow before he or she could bring a claim. In July, the Supreme Court didn’t exactly overrule that precedent, but it said judges can exercise discretion on a case-by-case basis whether to hear such claims over the implied warranty of habitability. The case is Kohner Properties Inc. v. Johnson, SC95944.

In a change for administrative law, the Supreme Court in June overruled precedent to hold that parties must exhaust their administrative remedies before seeking judicial review of a decision. The case, State ex rel. Robison v. Lindley-Myers, SC96719, applies prospectively only. As a result, the 8th Circuit said in July that an insurer was not required to exhaust its administrative remedies prior to filing suit because the procedures were too informal to require exhaustion under Missouri law at the time. The case is Travelers Property Casualty Insurance Company of America v. Jet Midwest Technik, Inc., 17-2628.

Timing was important in several cases. In State ex rel. Hawley et al. v. Pilot Travel Centers LLC, SC96885, Supreme Court that clarified when judges can alter judgments after they are entered. In Goldsby v. Lombardi, SC96639, the high court threw out as unconstitutional its own court rule requiring appellants to pay docketing fees within 10 days of filing.

In criminal practice, the Supreme Court ruled that people civilly committed for sexually violent behavior have a constitutional right to challenge ineffective assistance by their lawyers, though it’s not yet clear how to go about it. The cases are In the Matter of the Care and Treatment of Grado, SC96830, and In the Matter of the Care and Treatment of Braddy, SC96851.

Asked if a federal law requires juveniles to register as sex offenders when they turn 21, the Eastern District decided that judges should look at the type of crime for which the juvenile was convicted, not at the underlying facts of the offense. The case is In the Interest of A.C.C., ED106153. The Southern District offered a limiting ruling to a hearsay exception recognized in child-abuse cases. The case is In the Interest of D.S.H. and D.M.H. D.K.T. v. Greene County Juvenile Officer, SD35445.

The Western District ruled in State ex rel. Hawley v. Chapman, WD81589, that a criminal defendant can challenge the length of probation via a writ of habeas corpus. And the Eastern District, in Caruthers v. Wexler Horn, ED106685, said Missouri judges can’t order a criminal defendant who is raising a diminished-capacity defense to undergo a mental examination.

The Supreme Court ruled in two cases, State ex rel. Gardner v. Boyer, SC97026, and State ex rel. Peters Baker v. Round, SC96931, that only in rare circumstances should a court disqualify an entire prosecutor’s office from a criminal case.


To see the complete listing of opinions, click here.

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