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Paul Graham Legal Blog

By Paul Graham 21 Nov, 2017

Clients have misconceptions about what happens in an appeal and can be very upset about how the appeal process goes. 

In Missouri, appellate courts are "courts of error".   They are not places where we go to get a second bite at the apple or a new trial.  The only question that is put to our courts of appeal is the question of whether the trial court made a mistake in the trial that we already had.   As a practical, day to day matter, that means that the appellate court asks itself whether there was enough evidence for the trial judge to make a factual call in the way that s/he did and whether the trial judge got the law right.

With respect to factual calls, notice that the court of appeals does not ask itself whether the trial judge got it right.  Thus, the trial court may have decided that the light at an intersection was red when the defendant driver entered the intersection.  The court of appeals does not ask itself whether the light was actually red.  The court of appeals asks, did the trial court have a sufficient factual basis to find that it was red?  Thus, we say that on a appeal the judges do not typically try the case "de novo".  They don't start all over again and give us a brand new trial.

It's different with the law.  The courts of appeal do look at the record "de novo" when asking whether a trial judge made a mistake of law.  What is an example of a mistake of law?  In a divorce case with children, a judge might decide that a parent no longer owes child support for a child who is 18 years old regardless of whether the child is fully enrolled in college.  The judge might reason that if the child is old enough to be bound by his contracts or to be in the armed forces, then he is emancipated.  That reasoning might make some sense, but it would be wrong "as a matter of law".  If the trial judge decided that there would be no child support paid for that child, he would be reversed on appeal.  (By the way:  If the child is actually in the armed forces, then he would be emancipated--but not because he is old enough to be in the armed forces, but because he is actually in those forces.)

Now:  Note what is not going on on an appeal.  Very often folks come to me and ask me to appeal a case because a witness perjured herself or because a judge believed perjured testimony.  I am told that the witness (maybe an ex-wife) is a liar, and I am told that any judge who believed her must have been guilty of misconduct.  I may also be told that any lawyer who represented her must also be corrupt.    My prospective client is angry about all of this and wants me to file affidavits with the appellate court swearing to his allegations.

That is just not going to happen.  Almost never are such points made in an "appeal".  If a witness did actually perjure herself, then a crime has been committed and the matter should be referred to law enforcement.  If a judge was in cahoots with the perjurer, then a crime has been committed and the matter should go to law enforcement and to the Missouri Commission on Judicial Misconduct.  If the ex wife perjured herself and her lawyer knowingly let her do it, then that matter should go to the Missouri Bar disciplinary Counsel.   But I am never going to file an affidavit with the court of appeals and try to make these points. 

Why not?  The answer is, actually, pretty simple.  Because we don't go outside of the trial record to make our points on appeal.  Thus, two witnesses testify at a trial.  One is a liar and says the light was green.  The other is a saint and says that it was red.  The judge must discern between the liar and the saint and decide who is telling the truth and who is lying.  What if he gets it wrong and finds that the light was green?  On appeal, it is highly likely that his wrong decision will be affirmed.  Why?  Because the witness told him that the light was green.  Period.

So should (must) I do what my client insists upon and file affidavits in order to stop such injustices?   If the record is complete and I am no longer in front of the trial judge where I can ask for a new trial, then the answer is almost certainly "No".  As an attorney practicing before the court, I am "an officer of the court", and I am bound by the same rules of law that control the judges on appeal.  I am constrained to argue from the record alone.  I am not permitted to bring in new matters--new testimony from my client--and then ask the court of appeals to try the case "de novo" for me. 

So what do we do about perjury?  As I stated above, if you can show, with new evidence, that someone lied to a judge in a trial, then you should take that to law enforcement.  Lying in court is a crime just like robbery is a crime. 

Clients can get extremely upset about all of this.  They want justice, and they quite understandably expect to get it on "appeal" if they didn't get it at trial.    But think about it for a moment.  What if, every time some one disagreed with a witness, we had a completely new trial?  How many times would we have to try the case?  As many times as it takes?  Well:  Get in line for justice in such a system--and get ready to wait forever.

By Paul Graham 16 Nov, 2017



 Recently, the United States Supreme Court decided Trinity Lutheran Church of Columbia, Inc. v. Comer. Trinity Lutheran Church ran a preschool and daycare on its property. It had a playground made of course pea gravel, and in 2012 sought to replace a large portion of the pea gravel with a pour-place rubber surface by participating in Missouri’s Scrap Tire Program. This program is run by Missouri’s Department of Natural Resources, which offers reimbursement grants to qualifying nonprofit organizations that install playground surfaces made from recycled tires.  The Department of Natural Resources denied the application based upon it policy of denying grants to any applicant owned or controlled by a church.

 The church sued, alleging that the denial of its application violated the Free Exercise Clause of the First Amendment to the United States Constitution.   The First Amendment states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ; or        abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition           the Government for a redress of grievances.”

 The First Amendment says that "Congress" can't do that.  Subsequently to the enactment of the Fourteenth Amendment to the United States Constitution following the Civil War, the Free Exercise Clause of the First Amendment has been deemed to apply to the states. See Cantwell v. Connecticut, 310 S.S. 296 (1940).  So it doesn’t apply just to Congress. It applies to the Missouri Department of Natural Resources.  

 In Trinity Lutheran , the United States District Court held that the Free Exercise Clause did not require the State to make funds available to Trinity Lutheran under the Scrap Tire Program. The District Court held that the state could deny those fund solely because of “who” the daycare was, so to speak—effectively making the daycare choose between who it was--a church daycare--and giving up a benefit and secular identity that would not disqualify it for an rubber subsidy.  A divided 8th Circuit Court of appeals affirmed the District Court.

After appeal from the 8th Circuit, the United States Supreme Court held that the Department of Natural Resources had violated Trinity Lutherans’ right under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit solely because of it religious status--because of who it was. The Supreme Court pointed out that it had previously stricken down a Tennessee statute that had disqualified ministers from being delegates to the State’s constitutional convention solely because they were ministers.   But it had also upheld a law that allowed a state to give scholarships to students at both non-religious and religious schools, but with the prohibition that the funds could not be used to pursue a devotional degree.  Thus, a law cannot discriminate against someone solely because of who she is or what religion she exercises, but a law can discriminate on how state money is used and prohibit certain uses of money.   A law cannot make you choose between being religious or not, but it can make you choose how you will use state money.

          The Free Exercise Clause prohibits laws that impose “special disabilities on the basis of . . .religious status.” If a law does that, then, the United States Supreme Court held, that law “must withstand the most exacting scrutiny.” The Supreme Court held that the Missouri Department of Natural Resources policy did not survive that scrutiny. Denying a grant to pay for a playground surface at a church preschool just  the State of Missouri wanted to cut a wide berth between its money and any church—which was what the Department of Natural Resources argued was the state’s compelling interest--was not enough to save the law.

          Based upon this case, one would surmise that where the state provides funds for books or computers for schools, then it cannot refuse those funds to a church school for the purchase of math books just because it is a church school, but could refuse funds to a church school for the purchase of Bibles.   Could the state give money to a non-religious institution for the purchase of books with the prohibition that no Bibles be purchased? Perhaps so insofar as concerns the Free Exercise Clause, but probably not insofar as concerns the Free Speech Clause.

By Paul Graham 16 Nov, 2017





          On April 18, 2017, The United States Supreme Court reversed the Missouri Supreme Court in the case of Coventry Health Care of Missouri, Inc., FKA Group Health Plan, Inc. v. Nevils. Joe Nevils was insured through a Federal Employees Health Benefits Act plan that was underwritten or administered by Coventry Health Care of Missouri. Nevils had been injured in an automobile accident and made a recovery from the driver who had caused his injuries. Coventry paid his medical expenses and asserted a lien against the money which Nevils had received in his personal injury suit. Nevils paid off the lien and then filed a class action in Missouri state court alleging that Missouri law did not allow subrogation or reimbursement to Coventry. Nevils wanted his money back.  And he wanted maybe thousands of others to benefit from his efforts.

          Missouri law generally prohibits the assignment of personal injury claims. Missouri does not like the idea that I can sell my lawsuit for personal injury to another person. An insurance company is said to be “subrogated” to me if it pays me for my loss and then steps into my shoes and in my name sues the person who injured me for the money which the insurance company paid me.   Insurance companies frequently write a provision into their policies that states that their insureds agree that the companies can do this—in effect that the insured has assigned his personal injury case to the insurance company to pursue. Missouri does allow this for property damage claims, but not for personal injury claims.

       But federal law preempts state law per what is called the "Supremacy Clause" in the United States Constitution.   In Coventry Health Care , Coventry argued that the Federal Employees Health Benefits Act of 1959, preempted state law and overrode Missouri’s prohibition on the assignment of personal injury claims. The case went to the Missouri Supreme Court, and the Missouri Supreme Court concluded that the federal statute did not preempt Missouri’s prohibition on the assignment of personal injury cases.   Because a federal law was involved, the case ended up in the United States Supreme Court, and that Court disagreed with the Missouri Supreme Court. It decided that the FEHBA preempted Missouri law and that Coventry did have a subrogation right.

          What does this mean? It means that Coventry got to keep the money which Nevils had paid Coventry to release its lien on his lawsuit. Was that a good thing or a bad thing? There are arguments on both sides. One argument in favor of subrogation is that if an insurance money gets its money back, then the cost of health insurance will be reduced. Another argument in favor of subrogation is that an injured person should not double dip and get paid twice for the same damage—receive money from a liable person to pay medical bills and also receive money from an insurance company for the same bills. A reply to the second argument, of course, is that the injured party paid for his insurance to start with and so it is the insurance company, not the injured party, who is getting the windfall.   How? The insurance company collected premiums of $1,000 from the insured. Then it pays a claim of $1,000 to the insured. Then it gets reimbursement from the liable party of $1,000. So it gets to keep the $1,000 which it received from the insured in premiums without ever paying a cent in benefits.  But going back the other way now: Has the insured lost the benefit of his bargain—which was to get his medical care paid for? No. He got his bills paid.  And the insurance company gets to keep both his premium and the money from the tortfeasor.  So theoretically that helps lower health insurance premiums.  Which we see happening all of the time.  Right?

          But did the injured party actually get made whole?  There is a practical problem with the subrogation of personal injury suits. Let’s assume the following: You are in an accident and are badly injured because of someone else’s negligence. You have medical bills of $250,000. You sue the party who injured you. He has $250,000 in insurance. You are now disabled, can’t work, and are in constant pain. Your health insurance plan pays the medical bills and is subrogated to your claim.   How do you recover for your lost income, your future medical expenses and your pain and suffering?   Per the federal court's ERISA cases, the health insurance company gets paid back first and paid back everything it paid out.   If that taps out the tortfeasor's liability coverage, you are out of luck.

          As a practical matter, here is what often happens in cases like the one which I have described: The injured party doesn’t sue at all because he can’t find an attorney who will take the case where only the health plan gets paid; and/or the injured party doesn’t sue because he knows that he won’t get much or anything.  The health insurance plan doesn’t bring a law suit itself. So the person who caused the injuries gets off the hook—and so does the guilty party's insurance company. Does it really happen that the health insurance plan doesn’t bring a suit? Always . They want their money if you sue, but they don’t want to do the work, front the money or take the risks involved in a personal injury suit.

          Nevils involved the Federal Employees Health Benefits Act of 1959—and that is why it got to the U.S. Supreme Court at this late date. The issues which it presented are also triggered in ERISA cases. ERISA is the Employment Retirement Income Security Act of 1974 and applies to every employee benefit plan in the country—to 10s of millions of people. It also preempts state law and allows for subrogation. So thousands of injured people per day are confronted with the same roadblock to recovery most recently thrown up by Coventry Health Care of Missouri, Inc., FKA Group Health Plan, Inc. v. Nevils.

       But there is help.  A good personal injury lawyer will know how to negotiate with these health plans.

By Paul Graham 16 Nov, 2017



 Sometimes it is illuminating to look at something from a bizarre point of view. So here is the question: Why not settle a legal case with a throw of the dice? A single high card draw from a deck? Or—why not a duel with guns or broad swords and with the outcome in the hands of the gods?

Very often before we go to trial we try to settle a case. Sometimes this procedure is called “alternative dispute resolution”—ADR. Alternative to what? Alternative to a trial.  Alternative to “combat”.  Most frequently, ADR simply involves the parties’ negotiating a settlement with each other, with or without the aid of attorneys.   Very often, ADR involves the parties’ negotiating a settlement with each other with the help of a mediator, who facilitates the process of making offers and counter offers, negotiation and agreement.  

 Sometimes ADR involves arbitration, where the parties present the case to an arbitrator, who decides the dispute per an arbitration agreement which binds the parties to abide the arbitrator’s decision.   Calling "arbitration" "ADR" is incorrect.  The line between mediation and arbitration is a bright and dangerous one. With mediation, the parties endeavor to negotiate their way to a mutual agreement that settles their dispute. They use a third party—a mediator—to help them talk. With arbitration, the parties also use a third party--but to decide their fate. They don’t “fold” (i.e., settle). They “throw”—to mix cards and dice.  The only difference between ending a dispute with arbitration and ending it with a trial in a court room is that your rights in arbitration are set by your arbitration agreement where you rights in a trial are set by law, the legal rules of evidence and the rules of court room procedures.   Other than that, arbitration and trial both involve handing your fate off to someone else.  "Arbitration" is not "alternative".

  So on the one side we have discussion, negotiations, offers and counter offers, directly between the parties, or between their lawyers, or between the parties and a mediator, or between the parties, their lawyers and a mediator. But no matter how many lawyers or mediators get involved, the parties stay in control of the outcome. On the other side, we have combat, through arbitration or through a trial with a judge and maybe a jury. The parties try to influence the outcome with their preparation, skill and performance in the courtroom or in front of an arbitrator. But, ultimately, they entrust the outcome to someone else.

 The question of whether you should try to settle your case by negotiations, mediation, arbitration or trial is a question of risk and cost. Historically, property disputes between (rich) people were settled literally by combat. The disputants (or their hired knights) would don their armor, grab their broad swords and maces, climb on armored horseback, and fight it out to the death—leaving the decision to the gods.  So the cost of losing could be your life—everything. On the other hand, if you look at that way of settling disputes more objectively (or perhaps in a "bizarre" way), ending disputes by a fight to the death was actually relatively economical.

 Relatively to what? To the high cost of never getting a dispute resolved. Peter T. Leeson has published an interesting paper called “Trial by Battle” in the Journal of Legal Analysis , Vole 3, Number 1 (Spring, 2011), where he defends trial by battle—on economic grounds.   He notes that between when William the Conqueror, who conquered England in 1066 (called William the Bastard before he won the Battle of Hastings) and Henry II in 1179, property disputes were resolved by combat. [1]   That did not mean that two disputants went out and fought to the death in a street fight.  The process was judicial, highly regulated, and supervised by the king.  First, the disputants (or one of them) asked the king for permission to fight.   The king then issued his warrant or writ permitting them to fight.  They then went out and fought to the death.  The king then entered his judgment and verdict upon the result.  The dispute then was deemed (“doomed”, “doom” = “judgment” in Anglo Saxon) resolved. Trial by battle, thus, was not simply a brawl that could go on and on from one day to the next.  That would not be "efficient".  It was a form of judicial proceeding whose chief purpose was to "efficiently" end a quarrel about land titles--and to end it, if necessary, without any regard for fairness or the justice of one’s cause.  Ending the quarrel was so important, in fact, that if you did not like the result and did not obey the king’s “doom” entered upon the outcome of the battle, you stood at risk of treason—which could subject you to hanging, drawing (disembowelment), beheading and quartering.  Remember Mel Gibson is "Brave Heart"?  That happened all the time, in fact as recently in England as 1782, when the American Revolution was ending.  (When our forefathers wrote that they could either hang together against King George III or hang separately and then wrote the 8th Amendment prohibition on “cruel and unusual punishment” in the 1790s, they had something specific in mind.)

 Trying to sound professorial and not bizarre, Professor Leeson argues that trial by battle—judicial combat—allocated disputed property rights "efficiently". He contends that a seemingly irrational legal institution—trial by battle—is consistent with “rational maximizing behavior”. According to Professor Leeson, trial by battle addressed a primary problem with justice in the medieval world that although land disputes had to be resolved to keep tax revenues flowing, evidence of the truth in most cases would be in short supply. In most cases, disputes about property amounted to a “he-he/he she” quarrel, and a judge simply could not identify the true landowner. Faced with this problem and with the prospect of losing revenue from a large piece of property while its title was up in the air, the King had to have a way to resolve the whole problem "efficiently".  So in the purest form of efficiency, this meant removing one quarrelsome disputant by letting the other one slaughter him and then rewarding the victor with a tax bill. (Professor Leeson, of course, doesn't put it quite that starkly.)

 Professor Leeson’s article is a professorial study of economic theory and discusses mathematical formulas of one kind or another. But, ultimately, the point is practical. There is a spectrum involved with two poles, one at each end. At one end is the pole which looks for a legal system to achieve a just result for all concerned—based upon the evidence, based upon right and wrong, and not based upon any consideration of the costs of doing business. At the other end is the pole which looks for a legal system which will end a dispute just to end it, regardless of right and wrong, and wholly based upon considerations of costs.  

 Obviously, as one thinks about it, any case in our system can run a gamut back and forth between the two poles.    We can take our case to trial and give it over to the lawyers to fight and the the judge, jury or arbitrator to decide.   Or we can settle the case by direct negotiations or through mediation.  Or we can use the gravitational attractions of both those poles and settle the case by reasoning and compromise alternating with intimidation and mutual threats to take the case to trial.

 The trick is to look both ways: Drive a case towards the courthouse door—threaten the other side of the legal case with the prospect of losing control of the outcome and losing everything--while, of course, we are constantly taking stock of the fact that to the extent we are driving someone to the court house door, he is dragging us right along with him.  

 A final note:  I have over blown practice in the Middle Ages.  The fact is that when you presented your petition for a warrant or writ to the king for permission to fight, he would have his counselors and lawyers review the case.  He would often attempt to resolve an issue--by guess what, arbitration.  He would often deny the writ and permission to fight outright if he concluded that your claim was wholly bogus and just a pretext for a fight.  This is called "dismissal for failing to state a cause of action".   And if the king concluded that you had manufactured the whole thing just to get an excuse to "breach the king's peace", the results might not be good. Professor Leesondidn't talk about that.

[1] And only property rights. The king did not condone fighting in order to settle personal quarrels. Only quarrels that touched upon property rights which, of course, resolved questions for the king about who owed him the financial duties (cp. modern property taxes) attendant upon land ownership.)

By Paul Graham 12 Oct, 2017

Missouri courts give lip service to the proposition that a prenuptial agreement must be based upon complete disclosure, and that a prenuptial agreement will not be enforced absent complete disclosure. But in fact, no Missouri case which I have found has ever refused to enforce a prenuptial on the basis of the failure to disclose a non-financial fact, regardless of how important that fact may have been—in other words regardless of whether the couple would not have entered into the prenuptial or perhaps even gotten married at all had the fact been disclosed. The cases uniformly recite the proposition that there must be full financial disclosure for a prenuptial to be enforced. In specific instances, the cases find that a prenuptial will not be enforced because there was not full financial disclosure. But no Missouri case expressly states that to be enforceable, there must be full disclosure on non-financial matters. On the other hand, however, no Missouri case states that a prenuptial will be enforced even if there was a failure to make full disclosure on a non-financial matter.

Although no Missouri case has discussed the matter head on, one may readily surmise why the courts who shy away from finding that a failure to disclose a non-financial material fact will defeat a prenuptial. It is because that marriage, in a culture, is supposed to be based upon love and because love, admit it or not, is involves wooing, romance, (sincere) misrepresentations, and the statement of wishes and dreams as facts or promises. Few would get fall in love and fewer would get married if they could really see the warts and wrinkles on the other person or took off their makeup and showed their own. Dating, courting, foreplay—all of it involves flowers, wine, and the purring of sweet nothing. Are the courts really going to get into the business of deciding whether she lied about whether she loved him, etc. And consider how far the et cetera can go. The law is ultimately practical. It has to be to work.

So what if there is prenuptial, and one party fails to disclose that he has a sexual transmittable disease; or a serious history of drug abuse; or a criminal record of spousal abuse. Misrepresentations on these matters do not involve misrepresentations about feelings. Misrepresentations about a criminal of cocaine addiction or a prison record are objectively material. In other words, most reasonable people would think more than twice about a marriage with someone who broke up his last marriage by beating his wife or going to prison for drug addiction.

A court might be induced to make a distinction between misrepresentations on subjective matters and misrepresentations concerning objectively material matters. But the prudent thing for the legal practitioner and his client to consider is to determine in advance of the marriage what presupposition the marriage is based upon and then write up the prenuptial agreement so that it expressly states that those presuppositions were material to the deal and that the parties would not have entered into the agreed if the presuppositions weren’t satisfied.

I would suggest that a questionnaire be used that lays out the issues, financial and non-financial, which must dealt with in the prenuptial. Perhaps the questionnaire with answers could be made a part of the prenuptial, similar to the way insurance companies make applications for insurance part of the policy with a recitation to that effect in the policy. The prenuptial could go on to say that the parties agree that the answers to all questions in the questionnaire were material to the prenuptial and that any incorrect answer will be a basis for abrogating the agreement. The prenuptial might recite either that the parties’ answers are to the best of their knowledge of belief after due diligence, or might recite that the parties warrant their answers—which raises the bar so that regardless of due diligence, knowledge or belief, the parties are warranting their answers and assuming the risk of error. The prenuptial might go on to state exactly what the consequences are for a misrepresentation. These could range from a liquidated damages clause in the prenuptial to a statement that all parties of the marriage and maintenance issues will, in the event of a divorce or death be treated as if there had been no prenuptial agreement.

In summary and conclusion: Although whether the Missouri courts will state that a non-financial misrepresentation or failure to disclose alone in the absence of a contractual clause between the parties which specifically speaks to the question is sufficient to vitiate a prenuptial is unknown. But this writer is reasonably confident that if there is such a contractual clause, Missouri courts will enforce it. Certainly, nothing about such a clause in the abstract would be against public policy.

By Paul Graham 12 Oct, 2017

The Directions and Comments for the Use of the Form 14, Line 11, state that “[i]n a proceeding to establish a child support order or to modify the support payable under an existing order, the adjustment on line 11 may be rebutted if the parent obligated to pay support. . . does not incur significant expenditures as a result of overnight visitation or custody awarded under any order or judgment”.

Additionally, “Assumption 12”, upon which a Line 11 discount is based, assumes that “variable”, “duplicated fixed” and “non-duplicated fixed” expenses are shared and paid by both the parties as indicated in the Assumption 12. But the application of a Line 11 discount is rebutted where the evidence establishes that the party obligated to pay support is not paying any of the expenses described in Assumption 12 of the Form 14.

PRACTICE POINTER: Take a look at the opposing party’s income and expense statement. Did s/he identify any expenses directly being incurred or likely to be incurred for the children? The Missouri standard Income & Expense Statement has a column for expenses incurred by the parent for herself/himself like food, clothing, medical care, recreation, etc. Right beside the column requesting that kind of financial information for the parent is one requesting the same information for any child living with that parent. Did the parent who wants a discount at Line 11 of the Form 14 put anything down in that column?

Next, take a look at the Parenting Plans. It will contain a “red herring” but you need to be ready for it. Do they impose an obligation to pay expenditures as an incident of “overnight visitation or custody”? The changes are great that the Parenting Plan will provide for the sharing of medical and “extraordinary” expenses. It may provide for sharing the expenses of sports, music, etc. But the question is, are any of these expenses secondary to overnight visitation? But all of this is a red herring. Why would one get a discount on Line 11 for paying part of expenses which are provided for in the Parenting Plan and not on the Form 14? If a parent is ordered to pay part of the day care or soccer expenses, then they won’t be on the Form 14. And if they aren’t on the Form 14 because the parents are sharing these expenses per provisions in the Form 14, then no Parent’s Form 14 Line 11 discount is implicated by these expenses.

By Paul Graham 12 Oct, 2017

If a person convicted of a felony has not had effective assistance of counsel, then under Missouri law, he cannot attack his conviction on that basis on a direct appeal.   State v. Morovitz , 867 S.W.2d 506 (Mo. 1993); State v. Brown , 360 S.W.3d 919 (Mo. App. 2012). But he does have a remedy: If he was convicted of a felony after a guilty plea or after a trial, then he can proceed under Missouri Rules of Criminal Procedure 24.035 or 29.15. Of course, this means that he must file a lawsuit.

So if convicted of a felony because of ineffective assistance of counsel, a Defendant cannot raise that issue on direct appeal. He can, however, do so by filing a separate lawsuit under Rules 24.035 or 29.15 (a procedure fraught with peril for a defendant, starting with an extremely short statute of limitations).  But what if he was not convicted of a felony, but was, instead, convicted of a serious misdemeanor, like the violation of adult protection order or misdemeanor like child endangerment in violation of Section 568.050, RSMO—convictions that can cost him his job, follow him around for life, and ruin his career? What if this happened because of bad lawyering.  Neither Rule 29.15 nor Rule 24.035 is available for a misdemeanor conviction. State v. Reynolds , 360 S.W.3d (Mo. App. 2012).

What is his remedy? Habeas Corpus. State v. Morovitz , 867 S.W.2d 506 (Mo. 1993), held that one cannot challenge ineffective assistance of counsel on direct appeal from a misdemeanor. But it did state that a defendant could sue out a writ of  habeas corpus relief. State v. Brown , 360 S.W.3d 919 (Mo. App. 2012) followed Morovitz  on this point in 2012. Section 12 of the Missouri Constitution provides that the privilege of the writ of habeas corpus can never be suspended. And Missouri Rule of Criminal Procedure 91.01 provides, therefore, that any person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such restraint.

But right there is the gaping hole in the law. While habeas corpus is available for any restrained person, habeas corpus is available only to persons under actual restraint. Thus, if one has been convicted of a misdemeanor because of a bad lawyer but is not actually in jail, he has no right to habeas corpus relief.   In State ex rel. Axiz v. McCondichie , 132 S.W.3d 238 (Mo. 2004), a defendant’s petition for a writ of habeas corpus was dismissed as moot when he was released from prison on parole during the proceedings. That case did not focus on whether the defendant was challenging a misdemeanor or a felony. But that was because the distinction made no difference. Not all differences mean something.

So never mind whether the conviction is for a misdemeanor or a felony—unless the defendant is incarcerated, habeas corpus relief is not available. This is quite a hole in the law. A person can be left with a serious misdemeanor conviction on his record for life, caused by bad lawyering.

By Paul Graham 10 Jan, 2017

Federal law, 18 U.S.C. Section 922(g) (8) prohibits the following persons from possessing, shipping/transporting, or receiving any firearm or ammunition:


“a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner [1]   or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child.”


The penalty for violating this law is up to ten years imprisonment in Federal prison and/or a $250,000 fine.




Federal law prohibits the possession of firearms or ammunition even if an order of protection was consented to on a “no fault” basis—no matter what a state court judge tells you.


There is an urban legend operating in some of the courts of Missouri that if a person consents to a “no fault” order of protection, s/he can keep her firearms and ammunition. That is not so if the order prohibits the use of force or the threatened use of force.


No “full “order of protection may issue without a “hearing.” [2]   That is so regardless of whether the order is consented to or not. The federal statute covers any order issued after a hearing, so it covers any full order, consented to or not. Furthermore, the federal statute does not distinguish “no fault” orders from others. While the federal statute covers orders where there was “a finding that the person is a credible threat”, which would contemplate a “non-consent” situation, the federal statute also covers any other order which “by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child.”   Clearly, this statute covers all full orders, regardless of whether consented to or not.




Federal law prohibits the possession of firearms or ammunition even if an order of protection was a temporary order–no matter what a state court judge tells you. And this is so regardless of whether the order was issued in an adult abuse case or a divorce case.


There is also a myth that a person may keep his/her firearms and ammunition if the order prohibiting the use of force or the threatened use of force is only “temporary” and not a “full order of protection.” That also may not be so, depending upon whether the temporary order was also ex parte or not.


We often refer to adult protection proceedings as “ex parte” proceedings because a court can enter an “ex parte” order right after a petition is filed and before the respondent has any notice of what is going on. The expression “ex parte” means that the respondent—the person against whom an order is sought–was not present when a judge signed the order. The federal statue applies only to a person against whom an order “was issued after a hearing in which the person participated.” So the federal statute does not apply to a person against whom a Missouri “ex parte” order was issued.


But a Missouri “ex parte” order is only temporary. The person against whom such an order was obtained—the respondent–has a right to a quick hearing on the question of whether the order should be made permanent, the case dismissed, or something in between.   What happens then? Several things can happen. There can be a hearing on a full order of protection, and if a full order issues after a hearing and prohibits the use of force or the threatened use of force, then the federal law prohibiting the possession of firearms and ammunition is triggered.


On the other hand, by agreement of the parties (or even on the court’s own motion), the court may leave an order which was originally entered ex parte in place as a continuing temporary order—one that is not yet a “full” order. Sometimes the parties involved also file for divorce, and by agreement of the parties the adult abuse case is dismissed and a temporary restraining order is entered in the divorce case prohibiting “the use, attempted use or threatened use of such force against such partner or partner’s child.” The federal statute does not distinguish between a temporary order and a full order, does not distinguish between whether the order is entered in the context of a divorce action or in the context of an action brought under an adult protection statute, and, as already explained above, does not distinguish between orders that are consented to and orders that are not consented to.


In other words, any temporary order except for an initial ex parte order which prohibits the use of force or the threat of a use of force triggers the federal statute prohibiting the possession of firearms or ammunition.




How can a Respondent keep his/her firearms?


If you get into a situation where someone wants an order against you and you want to keep your firearms and ammunition, talk to your attorney. Short of simply trying to win the case and getting a dismissal (and so risking a loss), one solution to discuss is to consent to an order that simply states that you are not to be anywhere in the presence of the petitioner, not to enter his/her place of work or upon his/her property, and not to communicate with him/her. The federal statute is triggered by an order prohibiting “the use, attempted use or threated use of force.” The federal statute does not refer to orders simply prohibiting you from coming around a petitioner or communicating with a petitioner.


But don’t try to do this on your own. Talk to your lawyer. Note the penalties I laid out at the beginning of this little discussion—what can happen if you get it wrong.




Must an abuse victim agree to an order that lets the abuser keep firearms?


The answer would certainly be “no”. If you are an abuse victim and have asked for an order of protection, you do not have to be bullied into agreeing to language in an order which will make an end-run around the federal statute. Although a state court judge cannot give someone permission to bear arms where a federal statute says otherwise, a state court judge can say the magic words that trigger the federal statute. While the state court judge can’t “give”, the judge can certainly “take away.” If you have filed a petition for an order of protection and you don’t think that the Respondent should have firearms, tell the judge and tell why. If the judge believes on sufficient evidence that you have been abused and that you should be protected from force or the threat of force, then the judge should enter an order of protection which by its terms prohibits “the use, attempted use or threatened use of such force against such partner or partner’s child.”   No guns allowed then. That’s what the federal law says and that is what it is for.


[1] The term “intimate partner” means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person. 18 U.S.C. Section 921 (a) (32).

[2] A “full” order lasts for 180 days or 365 days. If the order is a final, appealable judgment, then it is a “full” order. Typically, the Court will call it that by name, but regardless of whether it is call “full”, if it is appealable it is “full.”

By Master Account 10 Jan, 2017

Do your physical or mental conditions qualify you for Social Security disability benefits? You are out here on the internet just trying to get a simple, straightforward “yes” or “no”. Let me try to give you a straight answer without a bunch of legal gobbledygook.

  • If you go to the Social Security Office or its website, you will be told “yes. . .but only if this, and if this, and if this.” Or you will be told “no. . . because of this, and this and this.” And with all the twists and turns and maybe soes and maybe nots, you may get discouraged and just give up trying to get a straightforward answer.
  • The same thing can happen to you if you go to a lawyer.
  • But getting to an answer really isn’t that hard.   You can answer the question “yes” or “no” yourself—if you are prepared to give a   true   answer to some very simple questions.
  • Here is how to do it: Just ask yourself, “Can I put in a single 8-hour day working?” Be completely truthful. If the true answer is “no”, then your physical or mental problems will qualify you for Social Security disability.
  • And you may still be qualified even if the true answer is “yes”. Let’s say that you can put in a day’s work for 8 hours on a Monday. But let’s also say that if you do, you are going to pay for it and you won’t be able to do it again on Tuesday. If that is true, then you are qualified for Social Security disability.
  • And so on.  Even if you can work five 8-hour days in a row, you are very likely qualified for benefits if you are going to miss every sixth day because of a mental or physical problem. The fact is that if you are truly going to miss work more than a couple of times in a month because of physical or mental problems, then – unless you are some high-dollar earner who can make a lot of money for his/her employer even though you are going to miss work – you qualify for Social Security disability benefits.
  • No doubt you have noticed that I have kept using the word “true.” That’s where my job as your attorney comes into the picture–to help you get the Social Security Administration to believe you are telling them the truth.
By Master Account 10 Jan, 2017

A disabled child is entitled to Social Security disability—but only to SSI benefits because the child has never paid Social Security taxes and cannot, therefore, be entitled to SSDI. On June 7, 2016, Speaker of the U.S. House of Representatives Paul Ryan (R-Wisconsin) released an outline of Republican proposals to address poverty. The report, called “Poverty, Opportunity and Upward Mobility,” is available at .

At this time, no legislation based upon this report has been introduced in Congress. Among other things, the report recommends at page 12 the elimination of children’s SSI. Instead of monitory benefits, the children would receive “in-kind services.” The theme of the report seems to be that people who receive money for disability tend to get comfortable with living a life of disability and that people who receive services that help them learn to work despite a disability tend to get off of disability. The proposal states:

“Reform Supplemental Security Income to Focus on Needed Services: One of the most concerning trends in the SSI program is the rising number of children coming onto the program. The average lifetime stay on SSI for people who come onto benefits as children is an incredible 26.7 years. Further, a disturbing 30 percent of older teens on SSI have dropped out of high school, which only adds to the barriers they face in going to work and leading productive lives as adults. Access to needed services in lieu of cash assistance, whether it be mental or physical therapies, or special-education services in school should be the focus of the SSI program.”

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