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Missouri court hears lawsuit again about mail-in voting law

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Cole County Circuit Court Judge Jon Beetum is considering a lawsuit designed to let all Missouri voters cast a ballot by mail this year without a notarized signature. The NAACP of Missouri and the ACLU of Missouri are suing the state and contend that a new law requiring some voters to get a notary could put their health and the health of others at risk during the COVID-19 outbreak.

Missouri court hears lawsuit again about mail-in voting law

Beetum dismissed the case in May and said the groups did not state a claim. He went on to say they are trying to get widespread absentee voting for all future elections. The case was then appealed to the Missouri Supreme Court and the high court reversed Beetum’s decision. It said the groups actually stated a claim.

Plaintiffs want the court to block the notarization requirement in Senate Bill 631. Under the plan, all registered Missouri voters can mail in their ballot this year, if requested, and the ballot envelope must be notarized.

Absentee voters can cast a ballot without a notary if:

  • Incapacitated or confined due to illness
  • Having contracted the coronavirus or at-risk due to the following:
    *Age 65 or older
    *Immunocompromised
    *Living in a long term care facility
    *Diabetes
    *Chronic lung disease/asthma
    *Serious heart condition
    *Liver disease *Chronic kidney disease and undergoing dialysis

All other absentee voters will be required to get a notary.

The governor has signed an executive order allowing electronic notarization.

The key witness for the plaintiffs, Dr. Hilary Babcock, a medical professor from Washington University in St. Louis, says the safest way to vote is not to leave home and instead vote by mail. But she says getting ballots authorized through a notary is safer than voting in person. If voters use public transportation to get to the polls, Babcock says those voters increase the chances of getting the virus.

Arguing for the state, Missouri Solicitor General D. John Sauer, raised the point that some notaries already have a porch or window-separated notary option. He also questioned Babcock about using safety measures while voting in person. Babcock says using social distance, frequent hand washing and wearing masks could help to minimize the risks of getting the virus. But she says they are not as safe as staying confined.

Today’s court hearing came with some technical glitches, causing the hearing to last more than three hours. Plaintiffs used a video conference platform to dial into the hearing. Understanding what they were sometimes saying did not always come easy. The Missouri Attorney General’s Office represented the state in-person.

Beetum could rule on the case at any time. Missouri’s primary election is on August 4.

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Missouri Supreme Court rules Legislature unconstitutionally stripped Medicaid funding to Planned Parenthood

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The state Supreme Court has ruled today the Missouri Legislature violated the Constitution when lawmakers blocked Medicaid funding to Planned Parenthood. The Republican-controlled General Assembly’s budget writing tactic has defunded the organization more than $1 million since 2018. In the 6-1 high court decision, Judge Zel Fischer was the only one siding with the state in the case.

Missouri Supreme Court rules Legislature unconstitutionally stripped Medicaid funding to Planned Parenthood

During a December court hearing about the case, attorney Chuck Hatfield, who represented Planned Parenthood, said Republican lawmakers do not want to give funding to doctors affiliated with Planned Parenthood. He said the Legislature cannot pick and choose which Medicaid providers it is going to give the funding to.

Missouri Solicitor General D. John Sauer argued that lawmakers went by the book.

Planned Parenthood has 11 clinics in Missouri, but the St. Louis location is the only one that provides abortions. The locations offer other services to low-income Missourians, including birth control and cancer, diabetes, high blood pressure and cholesterol screenings.

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Missouri Supreme Court sending absentee voting case back to Cole County Circuit Court

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The Missouri Supreme Court issued a decision on Tuesday involving absentee voting, ruling that a lawsuit that aims to allow all Missourians to cast absentee ballots without notarization in 2020 can proceed.

Missouri Supreme Court Chief Justice George Draper takes notes on June 15, 2020, while listening to oral arguments in the absentee voting case (photo courtesy of Missouri Supreme Court communications counsel Beth Riggert)

The Supreme Court is sending the case back to Cole County Circuit Judge Jon Beetem. The decision means the lawsuit from the NAACP of Missouri and the ACLU of Missouri can proceed.

The circuit court dismissed the lawsuit, finding that the plaintiffs failed to state a claim on which relief could be granted. The Supreme Court reversed that decision, finding the plaintiffs had stated a claim and remanded the case to the circuit court so the parties can proceed.

The organizations filed a lawsuit in mid-Missouri’s Cole County, challenging the constitutional validity of absentee voting legislation that was approved by the Missouri Legislature on the final day of session in May.

Governor Mike Parson (R) signed the legislation from State Rep. Dan Shaul, R-Imperial, in June. It expands voting by mail through the rest of 2020. There are two but separate options under the bill.

The first option has been non-controversial, and is not part of the lawsuit. That option expands absentee voting to those 65 and older, or who are vulnerable to COVID-19. Elderly people are considered at greater risk. Under the bill, notarization is not required for those 65 and older or who are vulnerable.

The second option is the key part of the lawsuit. It expands voting by mail for everyone in 2020, but requires notarization.

The Missouri Supreme Court heard oral arguments in the case on June 15.

During those oral arguments, Sophia Lin Lakin, who argued the case, told the Supreme Court that requiring some voters to get a notary could put their health and the health of others at risk, during the COVID-19 pandemic.

“SB 631 still requires voters whom the Legislature did not deem at-risk for COVID or those caring for others who may be at risk, to comply with the notary requirement in order to vote by mail,” Lakin argued on June 15.

But state Solicitor General D. John Sauer, who represents the state attorney general’s office and Secretary of State Jay Ashcroft, disputed that.

“A bad flu season does involve tens of thousands of deaths nationwide,” Sauer told the Supreme Court last week. “But nobody has ever contended that fear of contracting or spreading the flu is a statutory ground to cast an absentee ballot in Missouri.”

Sauer also argued in court that the NAACP and the League of Women Voters lack associational standing in this case.

Lin Lakin praises Tuesday’s ruling, saying “this decision is a big victory for Missouri voters.”

Click here to read the 73-page legal brief from the NAACP of Missouri, the ACLU of Missouri and others.

Click here to read the 85-page legal brief from state Solicitor General D. John Sauer.

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State Supreme Court hears lawsuit about expanded absentee voting this year

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The state Supreme Court is considering a lawsuit designed to let all Missouri voters cast a vote by mail this year without a notarized signature. Under a bill signed into law this month by Gov. Mike Parson, Missouri voters can vote absentee during this year’s August and November elections only, but some are required to get a notary.

State Supreme Court hears lawsuit about expanded absentee voting this year

Those who have contracted or are at-risk of getting COVID-19 can cast an absentee ballot without notarization. All other voters can mail in their ballot without an excuse, but they must submit a notarized statement.

During oral arguments Tuesday, Sophia Lin Lakin, who is representing the NAACP, says requiring some voters to get a notary could put their health and the health of others at risk during the coronavirus pandemic.

“SB 631 still requires voters whom the Legislature did not deem at-risk for covid or those caring for others who may be at risk, to comply with the notary requirement in order to vote by mail,” she says.

Assistant Missouri Attorney General D. John Sauer fired back.

“A bad flu season does involve tens of thousands of deaths nationwide. But nobody has ever contended that fear of contracting or spreading the flu is a statutory ground to cast an absentee ballot in Missouri,” says Sauer.

Lakin says the state already allows voters to cast an absentee ballot without a notary for multiple reasons.

“The sky hasn’t fallen and there is no indication that it would so here either,” she says.

The NAACP appealed its case to the high court after Cole County Circuit Court Judge Jon Beetum dismissed the case in May. In Beetum’s decision, he said the group wants widespread absentee voting for all future elections regardless of whether COVID-19 is still around.

The court could rule at any time. Beginning June 23, local election officials are scheduled to send absentee ballots for the August primary election.

To view the arguments, click here.

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Missouri jury trials will look a little different during pandemic

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The Missouri Supreme Court is changing trial court proceedings to include safe distancing and more allowances for COVID-19 health concerns.

The order issued this week says  “The resumption of jury proceedings too early would not only risk the health of the participants, but it could also undermine public confidence in the courts and damage the integrity of trial by jury, a cornerstone of our justice system. … [E]very reasonable precaution should be taken in the context of jury proceedings.”

Recommendations for the state’s 115 trial courts include allowing jury service to be deferred for those at risk or caregivers, ensuring space and facilities for distancing, limiting numbers of people during jury selection, using more digital technology for exhibiting evidence, and suspending the use of warrants for jurors failing to appear.

The state’s court systems are resuming activities in phases and local court information is here:
https://www.courts.mo.gov/pandemic/.

UPDATE: 8th Circuit Court of Appeals vacates stay of execution for convicted Missouri killer

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UPDATE: The 8th Circuit Court of Appeals has issued a ruling, vacating the stay of execution for convicted southwest Missouri killer Walter Barton.

In their nine-page ruling, the 8th Circuit Court of Appeals writes, in part: “We vacate the stay of execution and remand with instructions to dismiss Barton’s petition because we see no possibility of success on the merits on either of Barton’s claims.”

Barton is scheduled to be executed Tuesday evening at the maximum-security prison in Bonne Terre. Barring intervention from the U.S. Supreme Court or clemency from Governor Parson, Barton will be executed by lethal injection.

BRIAN’S ORIGINAL STORY FROM MAY 17, 2020:

A federal judge has issued a stay of execution in the case of a convicted southwest Missouri killer, who was scheduled to be executed Tuesday evening at the maximum-security prison in Bonne Terre.

Convicted murderer Walter Barton’s case has been working its way through the court system for almost 30 years (undated photo courtesy of the Missouri Department of Corrections)

64-year-old Walter Barton was convicted of first degree murder for the 1991 killing of 81-year-old Gladys Kuehler. She managed a mobile home park in the small town of Ozark, which located in Christian County, south of Springfield.

U.S. District Judge Brian Wimes issued the stay on Friday, saying he needs more time to review claims from Barton’s attorneys. Judge Wimes has given Barton a 30-day reprieve, and outlines his reasons in a seven-page ruling.

“At a minimum, equity requires this Court’s meaningful consideration the petition for habeas relief, which the Court anticipates would require no more than 30 days from today’s (May 15th) date to complete,” Judge Wimes writes.

Missouri Attorney General Eric Schmitt’s office is appealing the stay. Unless the federal Circuit Court of Appeals or the U.S. Supreme Court lifts the stay, Barton will not be executed Tuesday.

Barton’s attorneys have raised concerns about evidence used at the trial, and the “Kansas City Star” reported Friday that the attorneys also say that Barton suffered a brain injury and is incompetent to be executed.

The arguments that Barton’s lawyers made to obtain the stay are essentially the same arguments that they used unsuccessfully in April, with the Missouri Supreme Court in Jefferson City.

In late April, the Missouri Supreme Court unanimously denied Barton’s petition for a writ of habeas corpus, which cleared the way for the execution. A writ of habeas corpus is essentially a court order that demands that a warden deliver an incarcerated person to the court and show a valid reason for the inmate’s imprisonment.

Barton’s attorney, Frederick Duchardt Jr., filed paperwork with the court, which said that Barton is innocent and is incompetent to be put to death.

In late April, the Missouri Supreme Court unanimously rejected both arguments, saying that Barton has not offered sufficient evidence to show actual innocence. The Missouri Supreme Court also found that Barton hasn’t shown that he experiences gross delusions which prevent him from understanding the meaning of the death sentence.

This case has been working its way through the state and federal court system for almost 30 years.

The “Springfield News-Leader” notes Barton was first convicted in 1994, and ended up having five trials because two convictions were overturned on appeal.

Court documents say Kuehler, who was unable to move without the assistance of a cane, was stabbed more than 50 times, including 23 times in the back. Court documents also indicate that Kuehler’s throat “had been cut from ear to ear.”

In February, the Missouri Supreme Court scheduled a May 19th execution date for Barton. Executions in Missouri are conducted by lethal injection at the prison in southeast Missouri’s Bonne Terre.

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Missouri Supreme Court rejects request from convicted killer, clearing way for May execution

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The Missouri Supreme Court has unanimously denied a request from a convicted murderer from southwest Missouri’s Ozark, clearing the way for his execution to take place next month in Bonne Terre.

Convicted murderer Walter Barton is scheduled to be executed on May 19, 2020 in Bonne Terre (undated photo courtesy of the Missouri Department of Corrections)

The Supreme Court has denied 64-year-old Walter Barton’s petition for a writ of habeas corpus. A writ of habeas corpus is essentially a court order that demands that a warden deliver an incarcerated person to the court and show a valid reason for the inmate’s imprisonment.

Barton’s attorney, Frederick Duchardt Jr., filed court papers which say Barton is innocent and incompetent to be put to death.

The Supreme Court rejected both arguments. They say Barton has not offered sufficient evidence to show actual innocence. The Supreme Court also found that Barton hasn’t shown that he experiences gross delusions which prevent him from understanding the meaning of the death sentence.

In February, the Missouri Supreme Court scheduled a May 19th execution date for Barton at the maximum-security prison in southeast Missouri’s Bonne Terre.

The case has been working its way through the court system for almost 30 years.

The “Springfield News-Leader” notes Barton was first convicted in 1994, and ended up having five trials because two convictions were overturned on appeal.

Barton was convicted of first degree murder for the 1991 killing of 81-year-old Gladys Kuehler. She managed a mobile home park in the small town of Ozark, which is south of Springfield.

Court documents say Kuehler was stabbed more than 50 times, including 23 times in the back. Court documents indicate that her throat “had been cut from ear to ear.”

Barton will be executed by lethal injection in Bonne Terre, unless a federal court intervenes. Barton and Counselor Duchardt could also seek clemency from Governor Mike Parson.

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High-profile corrections officer overtime case heads to Missouri Supreme Court on Wednesday

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The Missouri Supreme Court will hear remote oral arguments on Wednesday morning in a case involving a lower court’s decision to award more than $113 million in overtime pay for Missouri corrections officers.

Missouri Supreme Court Chief Justice George Draper listens to oral arguments in the Lamar Johnson case on April 14, 2020 in Jefferson City. Because of COVID-19 concerns, it was the first time in history the court held remote arguments (photo courtesy of Missouri Supreme Court communications counsel Beth Riggert)

Because of COVID-19 concerns, only Missouri Supreme Court Chief Justice George Draper is expected to be in the Jefferson City courtroom on Wednesday. He’ll face a screen through which attorneys will participate remotely by videoconference. The other six judges will be participating remotely via teleconference. You will be able to listen to the oral arguments live on the Supreme Court’s website.

This will only be the second time in history that the Missouri Supreme Court has used remote arguments. The first time was last week in the Lamar Johnson case.

Wednesday’s oral arguments are scheduled to begin at 9 a.m.

Following a jury trial, Cole County Circuit Judge Pat Joyce awarded the money to the corrections officers, and has also ordered the Missouri Department of Corrections (DOC) to pay for pre- and post-shift activities for officers, such as time to pick up and return radios and inventory weapons.

A corrections officer named Thomas Hootselle Jr. and other officers sued the DOC, on behalf of a proposed class of more than 13,000 officers, for allegedly failing to pay them under the Federal Fair Labor Standards Act for pre- and post-shift activities. Labor agreements executed between the DOC and the Missouri Corrections Officers Association do not specifically address pre- and post-shift activities.

The Cole County circuit court has ruled that pre- and post-shift activities are compensable.

The DOC is being represented at the Missouri Supreme Court by the state attorney general’s office. In its 127-page brief, state Solicitor General D. John Sauer says the court erred in its decision and ruled in favor of the corrections officers after a one-sided jury trial. Sauer says only the corrections officers were allowed to present expert evidence.

“This case involves a judgment imposing enormous liability on Missouri’s taxpayers without legal justification,” Sauer writes in his brief to the Missouri Supreme Court.

Mr. Sauer is asking the high court to reverse the circuit court’s decision.

Mr. Hootselle and the corrections officers are represented by St. Louis attorney Gary Burger.

In his 135-page brief to the Missouri Supreme Court, Mr. Burger says the class of more than 13,000 Missouri corrections officers “risk their lives every day maintaining safety and security at appellant Missouri Department of Corrections’ prisons.” He says the DOC requires its officers to perform pre- and post-shift activities that are critical to prison safety and security, but has refused to pay the officers for these activities.

“The officers’ claim here is simple: MDOC must pay guards for guarding,” Burger writes.

Counselor Berger also says that the time between shift changes, when pre- and post-shift activities happen, “are often when prisoners attack others, try to escape, or try to smuggle contraband.”

The class action lawsuit began in 2012, and the circuit court issued its ruling in 2018.

While the Missouri Supreme Court will hear the case on Wednesday, there is no timetable on when they will issue a decision.

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Missouri attorney general and St. Louis circuit attorney on different sides in Lamar Johnson case

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An attorney for a convicted St. Louis murderer who’s served 25 years in prison tells the Missouri Supreme Court that evidence shows that the inmate did not kill Marcus Boyd in 1994.

46-year-old Lamar Johnson is serving a life sentence for first degree murder at the Jefferson City Correctional Center. St. Louis Circuit Attorney Kim Gardner has filed a motion for a new trial (2019 file photo courtesy of the Missouri Department of Corrections)

The Supreme Court heard historic oral arguments in Lamar Johnson’s case on Tuesday, with six judges participating remotely, due to COVID-19 concerns. Attorneys also participated remotely, via videoconference. Only Chief Justice George Draper was in the Jefferson City courtroom.

It’s the first time the Missouri Supreme Court has used remote arguments.

Attorney Lindsay Runnels represents Johnson, who is the appellant in this case. The Midwest Innocence Project in Kansas City is also involved in Johnson’s defense.

St. Louis Circuit Attorney Kim Gardner has filed a motion for a new trial, saying there is credible evidence that Johnson is innocent.

Gardner is an intervenor in the case. She was represented Tuesday by attorney Daniel Harawa, who says Johnson is innocent and that the circuit attorney has filed for a new trial, as a minister of justice.

“If a prosecutor abused the power of their office to wrongfully convict an innocent person, then a prosecutor must be able to use her office to seek to undo that conviction,” Harawa says.

The Missouri attorney general’s office opposes Gardner’s motion for a new trial. The attorney general’s office says the circuit court has no jurisdiction to consider Gardner’s motion, especially at this late date.

In their 52-page brief, Attorney General Schmitt’s office writes, in part, “This court’s rule 29.11(b) provides that, in a criminal case, (a) motion for new trial … shall be filed within fifteen days after the return of the verdict.”

Johnson was sentenced to prison in 1995.

The chief counsel for criminal appeals for the attorney general’s office, Shaun Mackelprang, argued before the Supreme Court.

“A jury found him (Johnson) guilty, found him guilty of murder in the first degree and armed criminal action. To this day, there has not been a hearing with any evidence presented showing that he is, in fact, innocent,” says Mackelprang.

Mackelprang also says that in a criminal case, only the defendant can file a motion for a new trial.

The case involves allegations of St. Louis police and prosecutorial misconduct. Johnson’s lawyers allege that an eyewitness’ 1994 identification of Johnson “was manufactured and false,” and that the state paid the eyewitness to identify Johnson.

We also learned new details about Johnson’s request on Tuesday, including the revelation that Circuit Attorney Gardner isn’t ruling out requesting a pardon for Johnson from Governor Parson.

Supreme Court Judge Zel Fischer asked Counselor Harawa about that.

“Counselor, why hasn’t the circuit attorney joined with the defendant in requesting the governor to issue a pardon,” Fischer asks.

Harawa responded by saying they’re not ruling it out, but emphasizes they’re focusing on seeking a new trial for Johnson and that the state “engaged in misconduct.”

The Johnson case has received nationwide media attention, and there have been numerous amici briefs that have been submitted to the Missouri Supreme Court.

A group of 45 elected prosecutors from across the nation have filed an amici brief, which says Circuit Attorney Gardner must have a legal mechanism to seek a new trial for a defendant, “when newly discovered evidence shows the conviction was tainted by constitutional violations.”

But a group of 30 elected Missouri prosecutors disagrees, and has also filed an amici brief. They say the circuit attorney’s office has no authority to file a motion for a new trial in a criminal case, on the defendant’s behalf.

There is no timetable on when the Missouri Supreme Court will issue its decision.

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Missouri Supreme Court to hear arguments in Johnson case; numerous amici briefs filed

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The Missouri Supreme Court will hear oral arguments Tuesday morning in a high-profile case of a man who’s served 25 years in prison for murder, a man the St. Louis Circuit Attorney says was convicted based on police and prosecutorial misconduct.

46-year-old Lamar Johnson is serving a life sentence for first degree murder at the Jefferson City Correctional Center. St. Louis Circuit Attorney Kim Gardner has filed a motion for a new trial (2019 file photo courtesy of the Missouri Department of Corrections)

Because of COVID-19 concerns, the court will hear the case remotely, with only Chief Justice George Draper in the Jefferson City courtroom. The other six judges and the attorneys for both sides will participate remotely via videoconference.

Oral arguments will begin at 9:30 a.m.

46-year-old Lamar Johnson is serving a life sentence for killing Marcus Boyd in 1994. Johnson remains incarcerated at the maximum-security Jefferson City Correctional Center.

Johnson’s co-defendant, Phillip Campbell, signed an affidavit saying that Johnson wasn’t involved in the murder. An eyewitness recanted his identification of Johnson, and signed an affidavit that he received monetary payments from the state.

St. Louis Circuit Attorney Kim Gardner has filed a motion for a new trial, saying there is credible evidence of Johnson’s innocence.

Gardner is an intervenor in the case. In a 72-page brief, Gardner counsel Daniel Harawa writes “He (Johnson) is innocent of the crime for which he has spent the last 25 years behind bars.”

Missouri Attorney General Eric Schmitt’s office argues the circuit court has no jurisdiction to consider Gardner’s motion, especially at this late date.

In their 52-page brief, Attorney General Schmitt’s office writes “This court’s rule 29.11(b) provides that, in a criminal case, (a) motion for new trial … shall be filed within fifteen days after the return of the verdict.”

The attorney general’s office says Johnson and Gardner want the Missouri Supreme Court to “ignore the plain language of its own rules.” Schmitt’s brief also says Johnson acknowledges that Missouri and federal law already provide at least six mechanisms by which an inmate claiming innocence can obtain relief.

The circuit court overruled Gardner’s motion for a new trial, saying it lacked authority to consider it. The circuit court says Gardner’s accusation of prosecutorial misconduct should have been investigated independently. The circuit court also says Johnson’s lawyer improperly contacted jurors.

The case has attracted national media attention from the “New York Times”, “USA Today” and others.

There have also been numerous amici briefs that have been submitted to the Missouri Supreme Court, from people across the country and state.

A group of 45 elected prosecutors from across the nation have filed an amici brief, which says Circuit Attorney Gardner must have a legal mechanism to seek a new trial for a defendant, “when newly discovered evidence shows the conviction was tainted by constitutional violations.”

But a group of 30 elected Missouri prosecutors disagrees, and has also filed an amici brief. They say the circuit attorney’s office has no authority to file a motion for a new trial in a criminal case, on the defendant’s behalf.

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