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Posted in Personal Injury on December 13, 2019   |  by Gary Burger

Court of Appeals Denied

Good news last week - the Court of Appeals denied the Missouri Department of Corrections Motion for Rehearing or Transfer to the Supreme Court.

But the case is not over - the State has one more appeal chance. They can (and will today or tomorrow) request the Missouri Supreme Court itself to transfer the case to the Supreme Court.

I know its a little weird - but the State gets two chances to transfer to the Supreme Court - they ask both the Court of Appeals and the Supreme Court. The Court of Appeals said "no" but the Supreme Court has yet to be asked.

Here is a link to the original opinion. Here's a link to the Post article on the opinion.

Here is the decision:

Transfer to the Supreme Court

There are 4 ways to get to the Missouri Supreme Court.

  1. On the Supreme Court's "own motion or on application of a party may transfer to this Court from the court of appeals a case in which there has been no disposition." Rule 83.01. This is before any decision by the Court of Appeals - i.e. if the Supreme court is really interested in it.
  2. After the Court of Appeals has entered a decision, the case "may be transferred to this Court by order of a majority of the participating judges.... Transfer may be ordered because of the general interest or importance of a question involved in the case or for the purpose of reexamining existing law. Rule 83.02.
  3. "If a ... judge dissents from a majority opinion filed in the court of appeals and certifies that the judge deems the opinion to be contrary to any previous decision of an appellate court ... the case shall be transferred to this Court." Rule 83.03
  4. If # 2 above was denied, the case can be transferred "on application of a party for any of the reasons specified in Rule 83.02 or [because the Appellate opinion] is contrary to a previous decision of an appellate court of this state." But, this "is an extraordinary remedy." Rule 83.04.

These court rules are designed to create various ways for cases to be heard by the Supreme Court where appropriate and for both Court of Appeals and Supreme Court judges to have an avenue for Supreme Court review of decisions.

Its interesting that the Supreme Court can take cases directly from the Court of Appeals and that a dissenting judge can request transfer in addition to the parties to the case.

Note that the Supreme Court has exclusive jurisdiction for five types of appeals and these cases go straight to that Court and not the Court of Appeals:

  • The validity of a United States statute or treaty.
  • The validity of a Missouri statute or constitutional provision.
  • The state's revenue laws.
  • Challenges to a statewide elected official's right to hold office.
  • Imposition of the death penalty.

This comes from Article V, section 3 of the state's constitution.

The court describes its role as:

The Supreme Court's role is to ensure a stable and predictable system of justice by serving as the final arbiter of disputes involving the state's constitution and laws. As such, it hears and decides many of the most important – and often the most controversial – legal issues affecting Missouri citizens, businesses, organizations and even factions of government.

In our case, denial of transfer under #2 above just happened and we expect the state to try #4.

The State lost the appeal in a unanimous decision in the Western District Court of Appeals. So the State filed its Motion with that same Court for the whole court of appeal to hear it en banc or to transfer it to the Supreme Court.

There are 11 judges on the Western District Court of Appeals. Click here to learn more about them.

I have argued before the Missouri Supreme Court before and it's a real treat - one I hope to avoid in our Corrections class action case.

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