House Bill 461 seeks to change the joinder rules found in Supreme Court Rule 52.05 and 52.06. This legislation proposed by Majority Caucus Chair Glen Kolkmeyer (R – Jackson/Johnson/Lafayette) appears to be in response to Governor Greitens call for tort reform from his State of the State address in which he claimed there was a massive amount of lawsuits being filed in Missouri by non-Missourians because Missouri is a “judicial hell hole.”

 The bill would add this subjection to Rule 52.05:

(c) Independent Establishment of Venue. In addition to the requirements of subdivision (a), in any civil action in which there is a count alleging a tort, two or more plaintiffs may be joined in a single action only if each plaintiff could have separately filed an action in that venue, independent of the claims of any other plaintiff. Any plaintiff that cannot establish proper venue independent of the claims of any other plaintiff shall be deemed misjoined. If the plaintiff was first injured outside of the state of Missouri, two or more defendants may be joined in a single action if the plaintiff can establish proper venue against each defendant individually. If proper venue cannot be established against a defendant individually, that defendant shall be deemed misjoined.

 The bill would also add this language to the end of Rule 52.06:

If a plaintiff or defendant is deemed misjoined under supreme court rule 52.05(c), such plaintiff or defendant shall be severed from the action, and the claims shall be transferred to a county in which venue exists. If there is no county in Missouri in which venue exists, the claims shall be dismissed.

Senate Bills 261 and 262, sponsored by Majority Caucus Whip Brian Munzlinger (R – District 18, which is generally northcentral and northeastern Missouri) are identical and have been passed by the Government Reform Committee

 HB 461 is set for hearing on Monday, Feb. 13 at 1pm in front of the Special Committee on Litigation Reform so don’t delay in reaching out to your representative if you have a position on this proposed legislation.

In two earlier posts we discussed various bills that were referred to the Judiciary Committee. Since that time there have been quite a few new bills referred to Judiciary so let’s take a look at a few of those now that relate to criminal sentencing.

HB 38 – Galen Higdon (R – Platte/Buchanan) has introduced this bill, which seeks to make two significant changes regarding criminal sentencing. Those changes would effect RSMo 558.019 in that the language requiring an offender to serve a certain portion of his/her sentence would now be discretionary instead of mandatory (“may be required to” instead of “shall be”). This bill also proposes to add the following section:

1. (1) Any person, except for a person who was found guilty of first degree murder or of any sex offense under chapter 566, meeting the following qualifications shall be eligible for a parole hearing:

(a) There was no heinous motive involved in the crime;

(b) The person is capable of rehabilitation;

(c) The person has been a model prisoner;

(d) The crime did not involve physical harm or the threat of violence to another person; and

(e) The crime did not involve a firearm.

(2) For purposes of this subsection, "heinous" means any crime that is hateful or shockingly evil.

I doubt there is much interest on pushing a bill that gives a “soft on crime” impression.

HB 171 (same as HB 1622 last year) seeks to add five words (“at the time of adjudication”) to RSMo 589.405. Mike Kelley (R – Dade/Barton/Jasper/Cedar) wants to place a requirement on judges to tell sex offenders “at the time of adjudication” that they must register as sex offenders. The statute already requires that these offenders be told of the registration requirement at the time prior to their release and discharge.

I’ll admit that I do not understand why we would seek to add a requirement that can later be used by a sex offender to avoid responsibility for not registering on the sex offender list. Give Rep. Kelley a call and ask him why sex offenders must be told twice of their registration requirements.

Tim West, MO Legislative Monitor
LAKC Board of Directors

My first few posts concerning the 2017 Missouri legislative session have focused on the House Judiciary Committee. In this post let’s take a look at two interesting bills in the Senate.

 SB200 – This is the same as SB591, which we looked at in the 2016 legislative session before it went through some modifications. This bill changes the standards applicable to expert witnesses in Missouri pursuant to RSMo 490.065. Jessi Baker’s official Senate summary on this is good so I’m going to copy it here:

"This act provides that current standards for admitting expert testimony in a civil action shall apply to legal actions adjudicated in probate court, juvenile court, family courts, or in actions involving divorce, marriage, adoption, child support orders, or protective orders.

In all other legal actions an expert witness may testify in a court proceeding if the expert has specialized knowledge that will help the trier of fact understand the evidence, the testimony is based on sufficient facts and the product of reliable principles, and if the expert has reliably applied such principles to the facts of the case.

An expert may base an opinion on facts in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts in forming an opinion, the facts need not be admissible for the opinion to be admitted. If the facts would otherwise be inadmissible, the proponent may disclose them to the jury only if their probative value outweighs their prejudicial effect.

An expert witness shall not testify on the defendant's mental state which constitutes an element of the crime. An expert witness may state an opinion without first testifying to the underlying facts, but may be required to do so on cross-examination.

A real property owner is competent to testify as to the reasonable market value of his or her land, in accordance with certain case law listed in the act."

SB 277 – Senator Paul Wieland (R-Jefferson County) seeks to have the death penalty removed as a potential punishment for first-degree murder. This would cause repeal to numerous sections is Chapters 546 and 565 of Missouri’s Revised Statutes. This bill was tried the last few years in the Senate and for several recent years in the House. Any chance it will pass this time?  If it did, would Greitens sign it? I can’t recall from the campaign his stance on the death penalty, if any. He did campaign on being tougher on violent crimes though, which would certainly include first-degree murder.

Tim West, MO Legislative Monitor
LAKC Board of Directors

First an update on bills discussed in the first post on this series of bills referred to the Judiciary Committee: HB 35 and HB 50 were voted do pass on the 19th after a hearing on the 17th.  HB 34 was referred to Legislative Oversight. 

Also voted do pass on the 19th was HB 285.  This bill sponsored by Nathan Beard (R - Pettis/Johnson) creates a requirement that a responsive pleading be filed in response to a motion to modify child support or maintenance.  The bill would add the following sentence to RSMo 452.370.1: "A responsive pleading shall be filed in response to any motion to modify a child support or maintenance judgment."  Further, the bill would add a similar sentence in RSMo 454.500 and change the word "may" to "shall" in reference to filing a responsive pleading in RSMo 425.747.

So what else does the Judiciary have to consider?

HB 72 would change the rules concerning the method of determining compensation in condemnation cases related to high voltage power lines.  The bill, among other things, provides property owners with the opportunity to get treble damages and an award of attorney fees in litigation.  I'll need to look at this more because it is not readily apparent to me how this bill is philosophically consistent with the Governor's message on the need for tort reform.  Rep. Joe McGaugh (R - Chariton/Carroll/Ray) can tell you more about this if you are interested.

Committee Vice Chair Corlew (R - Platte/Clay) has sponsored HB 152 which seeks to establish the "Armed Offender Docket Pilot Project" in Jackson County Circuit Court.  Even if the bill passed, it would be up to the Circuit Court to determine if they wanted to implement the docket as it comes with no money but rather authorizes the Circuit Court to charge a surcharge in an effort to pay for the docket, which would have a dedicated judge.  I haven't spoken to any of the Jackson County judges about this bill to determine if this would be beneficial so let me know if you have any insights.

I'll provide another update after the Committee's next hearing on the 24th.

Tim West, MO Legislative Monitor
LAKC Board of Directors

We are still early in the 1st Regular Session of the 99th General Assembly, but let's take a look at a few of the bills that have been referred to the Judiciary Committee.

HB 32 - This seeks to add a paragraph to RSMo 621.035 to allow Enrolled Agents and CPAs to represent individuals and businesses before the administrative hearing commission on matters "relating to the assessment or reassessment of taxes or any other tax-related matter."  I have no idea what "other tax-related matter" means but you can ask the bill's sponsor, Gary Cross (R - Lee's Summit).

HB 34 - This bill seeks to update Article's 1 and 7 of Missouri's Commercial Code to match the current version of the UCC.  That seems like a sensible proposal by Representative Dean Plocher (R - Town and Country).

HB 35 - This bill seeks to create a rule of evidence regarding the admission of breath analyzer results for those allegedly intoxicated.  The bills seeks to abrogate the holdings of Stiers v. Director of Revenue, 477 S.W.3d 611 (Mo. 2016).  This was introduced by Rep. Plocher.

HB 50 - This bill, introduced by Rep. Rebecca Roeber (R - Lee's Summit / Greenowood), seeks to eliminate the division assignments between Kansas City and Independence that exists in the 16th Judicial Circuit.  RSMo 478.463 and 478.464 designate where each division resides.  Ms. Roeber's bill would strike those designations leaving the statutes to state only that there would be 19 circuit judges and 10 associate circuit judges.  I have not inquired or heard of the motivation behind this bill or what, if any reaction, it has received from Jackson County judges.  If you have any insight on this, I would love to hear about it.

I'll be back in a few days with a few more bills that our judiciary committee is likely to address this session.

Tim West, MO Legislative Monitor
LAKC Board of Directors

What's at the top of the GOP-controlled House's agenda?

Right to work.  Governor Greitens campaigned on a promise to pass a bill that prohibits Unions from mandating dues, legislators pre-filed bills and today, in his Opening Day address, House Speaker Todd Richardson said he would refer a bill to the Economic Development Committee tomorrow (1/5/17) and asked that the Committee get the bill to the House floor ASAP.

Ethics Reform.  Speaker Richardson said: "A gift ban will be the first bill out of this House."  Now whether this bill will have any teeth and actually have a reforming effect is anyone's guess, but the GOP, starting at the top with President Trump, is at least attempting to get reform soundbites.

Charter Schools.  Speaker Richardson today spoke about the need to expand access to charter schools.  A review of the currently filed bills suggests that this is an idea without a plan, but time will tell.  Keep an eye on HB189, offered by Kathryn Swan, which would establish a savings plan for K-12 educational expense and fits hand-in-glove with expanding charter schools.  Charter schools are likely to be the subject of renewed discussion in light of Trump's selection of Betsy DeVos, an advocate for charter school expansion, to be the Department of Education Secretary.

Tim West, LAKC MO Legislative Monitor
LAKC Board of Directors

With a Republican super majority in the legislature and Republican Eric Greitens replacing Democrat Jay Nixon as holder of the veto stamp, there could be a lot of legislation passed and signed into law that has had the legs the past few years.  For those of us in Kansas City area, that means concern or joy (depending on your perspective) over the prospect of another bill to repeal the 1% earnings tax.

For those of you that view a repeal bill as negative, including the 77% that voted in favor of the 1% tax the last time it was on the ballot, you have good reason to believe that a repeal bill will not be part of the 2017 agenda.  First, Senator Kurt Schaefer, the big proponent of the repeal bill was term limited out of office.  Second, Speaker Pro Tem Elijah Haahr, who sponsored a repeal bill last session recently said that he does not intend to sponsor a similar bill this session.

So, what will be at the top of the Republican legislative agenda for 2017?  Let me know what you think should or shouldn't be the legislature's focus?   

Missouri's veto session began on Wednesday, September 14.  By the end of the day, 13 of Governor Nixon's 20 vetoes had been overridden.  I'll address the impact of other bills in future posts, but the bill getting all the attention is that which allows concealed carry without a permit and expands the so-called stand your ground law.  This is the bill that lead KC Mayor Sly James to fear that the legislature would "double down on stupid."  As Mayor James said earlier today (Thursday the 15th), this result was not surprising.  The Kansas City Star had made an overly optimistic pitch about how the veto might not be overridden now that some Republicans had begun to express concerns over citizens carrying weapons without a permit and without the benefit of training classes.  That was never a realistic possibility as this was always going to be a party line vote.  The NRA was heavily supportive of this bill that makes Missouri the 10th state where concealed carry is permissible without a permit.  The law takes effect January 1, 2017.

Tim West
MO Legislative Monitor
LAKC Board of Directors

The selection committee for the Coburn Award is seeking nominations for Legal Aid of Western Missouri’s Honorable H. Michael Coburn Community Service Award. This award was created in 1995. The Committee will select an award winner whose noble work and honorable efforts in service to the community will serve as an inspiration to others in the legal profession.

Qualifications:

• Current member of the Missouri Bar practicing in the Jackson County area.
• Demonstrated, in the spirit of Legal Aid, outstanding service to advancing the administration of justice on behalf of low-income people in the Jackson County area.
• Outstanding service to the community with a particular emphasis on volunteer activity and leadership, other than work directly for bar associations (pro bono case work on behalf of low-income people that is done through a bar association may be considered).

The Procedure:

The nomination form, along with appropriate supporting materials. Applications must be received no later than 5:00 p.m. on Tuesday, October 4, 2016 by The Coburn Community Service Award Committee, c/o Legal Aid of Western Missouri, 1125 Grand Avenue, Suite 1900, Kansas City, Missouri, 64106. Applications may also be submitted on-line to glombardi@lawmo.org. Any questions should be directed by e-mail to Gregg Lombardi at glombardi@lawmo.org.

Deadline for nominations to be received by Legal Aid is 5:00 p.m. on Tuesday, October 8, 2016.

Download a nomination form.

Past Coburn Award Recipients Include:

2015 Pat Stueve
201 Suzy Block
2013 Steve Chinn
2012 Dale Irwin
2011 Denise Henning
2010 Janeen deVries
2009 Charley German
2008 James Heeter
2007 Matthew J. O’Connor
2006 Richard W. Miller
2005 Lisa Gentleman
2004 Honorable Jon Gray
2003 Courtney Koger
2002 Honorable Justine Del Muro
2001 C. Patrick McLarney
2000 John Kurtz
1999 John Johnston
1998 Honorable Christine Sill-Rogers
1997 Elaine Drodge Koch
1996 Honorable Hal Lowenstein
1995 Bronwyn Werner

Governor Nixon vetoed 22 bills in the 2016 regular session.  The veto session in which the General Assembly will consider only those bills returned by Governor Nixon convenes on September 14.  SB 586, relating to charter schools, has already been overridden.  Here is a short summary of some the bills vetoed by the Governor this last session:

*         HB1414 [SCS HB 1414] - This bill would have allowed for a voluntary reporting of agricultural information that is now mandatory.  Governor Nixon vetoed the bill arguing the public has the right to know the information.

*         HB1432 [SS#2 SCS HCB HB 1432] - This bill requires a hearing within 60 days of an employee being placed on administrative leave.  Governor Nixon vetoed the bill arguing that it would make it harder for employers to punish employees and would give procedural rights to employees not currently entitled to such protections.

*         HB 1631 [SC#2 SCS HCS HB 1631] - This is Missouri's take on a voter ID bill, requiring government-issued photo ID to vote.  This is similar to a bill that Nixon vetoed in 2011.  We'll see if there are votes to override the veto this session.

*         SB 591 [SCS SB 591] - This bill would modify Missouri's statute regarding expert testimony to essentially put in place the Daubert standard used in federal courts and many other states.  The bill had a fair number of Republicans vote against it on its initial passage so it is doubtful there will be the votes to override the veto.

*         SB 847 [SS#2 SB 847] - This bill would have ramifications for the collateral source rule and damages evidence in personal injury cases.   If passed, parties could introduce evidence of the actual cost, rather than the value, of the medical care or treatment to the plaintiff.  The bill would also repeal a provision of law which provides that there is a rebuttable presumption that the value of the medical treatment provided is represented by the dollar amount necessary to satisfy the financial obligation to the health care provider. The bill would provide that the actual cost of the medical care or treatment shall not exceed the dollar amounts paid by or on behalf of a patient whose care is at issue plus any remaining amount necessary to satisfy the financial obligation for medical care by a health care provided after adjustment for any contractual discounts, or price reduction.

Tim West, MO Legislative Monitor
LAKC Board of Directors