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Tag Archives: due process

Appellate court reverses trial court to affirm ban of deer-dogging in Missouri

Last August, Judge Robert L. Smith of Ripley County, Missouri, declared some state regulations regarding deer hunting to be unconstitutional. Those regulations prohibited hunting deer with the aid of dogs and from vehicles. On July 15, 2011, in Turner and Jones v. Missouri Dept of Conservation, the Missouri Court of Appeals for the Southern District reversed Judge Smith’s rulings, holding that Neil Turner and Bobby “Shannon” Jones lacked standing to challenge the constitutionality of these regulations, which are enforced by the Missouri Department of Conservation.

Turner was among those identified in a federal investigation of a group in Southeast Missouri who in 2008 apparently traveled in ATVs and used dogs to drive deer to hunters in tree stands within the Mark Twain National Forest. The dogs were equipped with radio transmitters. Jones was never charged, but was questioned by a Missouri Department of Conservation (MDC) investigator.

Turner and Jones persuaded Judge Smith that the regulations prohibiting hunting deer with “a motor-driven conveyance” or with dogs were unconstitutionally vague, so vague that they couldn’t tell what was prohibited. In addition, they claimed that the regulations were defective because they were too broad. The vagueness and overbreadth deprived Turner and Jones (and MDC) of notice of what was legal, depriving Turner and Jones of the due process protection afforded by the federal and state constitutions.

In a footnote, the court of appeals indicated that Judge Smith was striking a blow for hunting rights, rather than following the law, quoting his judgment before trashing it:

Upon consideration of all evidence and arguments of the parties, the trial court recognizes that hunting is an important right. In our area, hunting is not only for recreation, but it is a part of our way of life and any infringement of this right must be constitutional.

Turner and Jones had a couple of points. The language of the regulations in questions seems to encompass use of vehicles that is not intended to be prohibited (such as traveling to a hunting area) and only uses the plural term “dogs” not the singular form “dog.” At trial, the attorneys for Turner and Jones asked hypothetical questions of MDC agents about interpretation of the regulations and obtained inconsistent answers. The attorneys argued that not even MDC knew the meaning of its regulations.

But the Court of Appeals had no need to slice-and-dice the hunters’ legal arguments. The appellate court ruled that neither Turner nor Jones had the proper standing to bring the constitutional questions to court in the first place, because the vagueness in the regulations didn’t pertain to the acts that Turner was charged with, and Jones wasn’t charged with anything.  Courts do not have jurisdiction to consider hypothetical questions, so the trial court erred by ruling on the petition of Turner and Jones. In other words, Turner made no claim that the federal prosecution of him would end if the regulations were declared void. Turner’s group had more than one dog, so he couldn’t argue that the regulation was vague about whether use of one dog was prohibited.  Jones was not prosecuted and had nothing at stake.

The idea that the regulations were overbroad received even less respect from the Court of Appeals. MDC successfully argued that the concept of a regulation being overly broad only applies in the context of the First Amendment to the United States Constitution. To be constitutional, a regulation that restricts speech or the freedom of people to associate with whomever they wish must be narrowly focused on achieving a legitimate legislative purpose.

Deer-hunting regulations were formulated when deer were much more scarce than now, though seasons and limits have been loosened up considerably. Hunting deer with dogs was considered sporting in the 19th Century and earlier, but ATVs and radio telemetry weren’t a part of the tradition.


“Taxpayer” loses property to city of St. Louis

Four justices of the  Missouri Supreme Court wouldn’t help Bhatti recover his property, which had been sold by the City of St. Louis in an effort to collect Bhatti’s delinquent property taxes. These justices reckoned that Bhatti was obligated to know whether letters that he never received were reasonably calculated to reach him and inform him that he was losing his property.

The court’s majority opinion pointed out crucial facts that kept the court from applying the due process rules which were set out by the United States Supreme Court in a series of decisions, most recently in Jones v. Flowers, a 2006 decision.

At trial, Bhatti failed to provide evidence to indicate that the sheriff had reason to know that the mailed notices were not reaching Bhatti.

In a motion for a new trial  based on newly discovered evidence,  Bhatti provided the envelopes marked “return to sender” which the sheriff’s office had received. Bhatti’s motion for a new trial was rejected, because Bhatti did not show the court that the returned envelopes were not available at the time of the first trial.

Bhatti also argued that the evidence of the returned notices to him were a part of the fat file that was included in the trial exhibits. The Missouri Supreme Court stated that the trial court was under no obligation to sort through a fat file to find documents that would help Bhatti — it was up to Bhatti (or his attorney) to call the trial judge’s attention to specific documents that would support Bhatti’s case.

In its conclusion, the Missouri Supreme Court lectured Bhatti on three points, only one of which is based on law (which I have put into separate paragraphs):

The Court regrets the result in this case. But Owner’s loss of his real estate is the result of his multiple acts of negligence.

  • First, he was negligent in failing to pay his real estate taxes for three years…
  • Second, Owner provided an incorrect address for the purpose of notification of real estate taxes due, and he never updated his address….
  • Third, when pursuing his constitutional rights in our court system, he failed to follow United Supreme Court authority that requires him to show that the notice sent to him was not reasonably calculated to apprise him of the pendency of the action against him.

The lessons from this lecture are clear:

  • If you own property and are not receiving a tax bill for it, you need to contact the tax collector.
  • The Missouri Supreme Court expects a person to know whether or not a notice not received is “reasonably calculated to apprise him of the pendency of the action.”

Negligence of the property owner is not a part of the constitutional law in due process cases. The court’s remarks about Bhatti’s negligence are gratuitous, but perhap provide a moral underpinning to the dissent’s position that focused on the City’s lack of effort in getting notices to Bhatti.

Justice Wolff’s dissent, supported by justices Stith and Teitelman, notes that the government spent a total of $1.28 in postage to send notices to Bhatti, even though the government is obligated to send notices that are “reasonably calculated to apprise him of the judgment of foreclosure, the forclosure sale and the confirmation hearing.” The government knew that Bhatti didn’t receive the notices, but still sold Bhatti’s property to collect $7,600 in taxes.

The City of St. Louis had another address for Bhatti, which Bhatti used on his building permit applications. Wolff indicated that the City should have also sent a notice to this alternate address, rather than only to the vacant building which Bhatti was fixing up.

Wolff also argues that the City’s tax lien foreclosure ordinances, as implemented, do not provide due process.The City, having the returned mail sent to Bhatti, should not benefit from the presumption that mail has been received.

Missouri Supreme Court disses certified mail notice

A unanimous opinion of the Missouri Supreme Court, dated March 31, 2009, holds that section 140.405 of the Missouri Revised Statutes is unconstitutional.

This statute provides for notice by certified mail to delinquent property taxpayers that someone has paid the taxes on their real estate and that they must redeem their property by paying the taxes, or lose it. If the certified mail notice is unclaimed, the person giving the notice (who is the purchaser of a tax certificate at a sale of delinquent property), that person must take additional steps to notify the delinquent taxpayer that a collector’s deed will be issued to the person who purchased the tax certificate. Read the rest of this entry

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