Opposition Brief — Risbeck v. Bond

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WU 74- A

OFFICE OF THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

Jonn S. Risbeck, et UuxX.,

Petitioners,

V >.

Joseph C. Bond, et. ux., et al.,

Respondents

On Petition for a Writ of Certiorari to

the Missouri Court of “aa

Southern Distri

RESPONDENT'S BRIEF IN SUPPORT OF PETITION

QUESTIONS PRESENTED FOR REVIEW

These questions are subsidiary questions

that are fairly included in Petitioners'

question number 2.

1. Whether Section 484.020.1 RSMo 1986

is unconstitutionally vague and in viola-

tion of due process requirements, by fail-

ing to give adequate notice that the sta-

tute applies to a layman, attorney in

fact, acting pursuant to a power of attor-

ney.

2. Whether the Missouri court policy of

defining what is and what is not the au-

thorized and unauthorized practice of law

on a case by case basis, violates due pro-

cess requirements by not providing a

Clearly defined standard which gives no-

tice to the public as to what exactly is

prohibited.

PARTIES TO THE PROCEEEDING BELOW

John S. Risbeck, Petitioner

Peggy J. Risbeck, Petitioner

William V. Jones, Respondent

Dena Jones, Respondent

Joseph C. Bond, Respondent

Cathy —. Bond, Respondent

Ethel B. Jones, Respondent

Earle M. Merritt, Respondent

Eva E. Merritt, Respondent

Kenneth E. Hawley, Respondent

Non parties whose interests and positions

may be affected by review:

Robert and Wanda Davis

Jay Nixon, Attorney General of Missouri

iii

TABLE OF CONTENTS

EE TUES PRESEN COs ce ceveecccservecees

PARTIES TO THE PROCEEDING BELOW......

Se OP PUP PLE Si wi be cc cetwevsees

Respondent's Interest In The Case And

Facts Supporting Claim Of Being An

Omitted Party Pursuant To Rule 12.4..

Pio 5 eS”

BIS OO IE. gc cdc cc ccccesecs

ARGUMENT SECTION. oc ccccccccccececcens

Court Can Consider Applications

Of Statute In Other Factual

SEES ena

. Trial Court Acted In Reliance

Upon Sections 484.010 And

RCE OPO 1700s cébaccccvecss

. Strict Standards Apply To Regu-

lations In The Area Of First

Amendment Freedoms.............

. Vague Statutes Violate Princi-

pies OF QUE PIOCESS...ccccccecs

. Practice Of Law Definition

Fails To Define A Key Phrase So

As To Give Notice As To Whom

The Statute APPL les... wcccccons

Page

F. Missouri Court Opinions Conflict

With Due Process Decisions Of

Tee Cee a 6 nada see Sheds eree ee 19

G. Conflict Between Missouri Court

Opinion And Power Of Attorney

Statute Unjustly Punishes The

gi tts) | 4 Sp ie ee pee 25

[Se LO ceceeeeoeediae caaeekes ces 28

TABLE OF AUTHORITIES

Cases

Automobile Club of Missouri v.

Hoffmeister, 358 S.W. 2d 348

Ts 46 05 ohana ews 7. 22

Baggett v. Bullitt, 377 U.S. 360,

con 1Z L.b6. 26 377, 382,

oS oie 5 Seer eae 17

Giaccio v. Pennsylvania, 382 U.S.

399, A oe ’ . . 2d 447,

Sa, ee ae 2 eek 6k ds 24-25

Hynes v. Mayor of Oradell, 425

U.S. 61 0, 48 L.Ed. 243,

ee Ee. ee ORE 17-18

N.A.A.C.P. v. Button, 371 U.S.

~ 415, 443, 9 L.Ed. 2d 405, 424,

1. ee She 1

Ton. 26, Bin shabeeash endian 3.

TEElls Weds Soe sr seccctsrevesenves 16

Page

Risbeck v. Bond, 885 S.W. 2d 749,

, (eO.AO0. S.0. W998). cccccn 21-23

State v. Carroll, 81/7 S.W. 2d.

209, 291 (Mo. App. | ug 2 20

United States v. Laub, 385 U.S 475,

~ GB6-487, T7 L.Ed. 2d 926, 534,

OF eek Ores ceckeuke baeaueres 21-28

Statutes and Rules

re em Sk td > ee eee 15

Section 404.710.1 RSMo (1992

i Pa eee aa eo Cee ee aa 18

Section 404.710.4 RSMo (1992

DO 2icbe er awabeactaaisaeeuwscens 20-21

Section 532.020 RSMo 1986........ 20

Section 556.026 RSMo 1986........ 26

Section 556.061(19) RSMo 1986.... 26

rates” Sgoporting’ Claim of belng Ap Onl ted

Party Pursuant To Rule 12.4

I serve the petitioners in a fiduciary

capacity as their attorney in fact. My in-

terest in this case is in every practical

sense identical with that of the petition-

ers. Our principal/attorney in fact rela-

tionship is but the medium through which

the petitioners seek to make more effec-

tive the expression of their own views in

petitioning the government for the redress

of grievances.

My relationship to the petitioners is

essentially analogous to that of the

N.A.A.C.P. and its members, as this court

has determined in N.A.A.C.P. v. Button,

Ca errr ines wren mene

371 U.S. 415, 443, 7 1.00. 26 G5, 424.

"(the NAACP] and its members are in

every practical sense identical. The

Association,...is but the medium

through which its individual members

seek to make more effective the expres-

Sion of their own views."

SSE POTTS PEPSI TT EIT REET Ee

I am interested in the outcome of this

case because, this court may determine

whether Missouri law and the Constitution

of the United States allows an attorney in

fact, that is not also a licensed attorney

at law, to execute and deliver petitions

for a principal and to speak for them in

court. This issue is of particular inter-

est to me since, the State of Missouri at-

tempted to prosecute me for practicing law

without a license and may again initiate

another prosecution for my role in assist-

ino the petitioners with their appeals.

My status as a party below is evident

from the following facts in the record:

1. All of the motions, pleadings and

other captioned documents filed in the

Phelps County Circuit Court on behalf of

the petitioners identified and named the

plaintiffs in the following manner in the

caption:

John S. Risbeck and

Peggy J. Risbeck, Plaintiffs,

By and Through Kenneth E. Hawley,

Plaintiff's Attorney in Fact.

See: Petition To Quiet Title, Notice of

Lis Pendens, Amended Petition To Quiet Ti-

tle, Judgment attached to Motion For De-

fault Judgment According to Rules 54.02

and 74.05, and Motion Jo Vacate Judgment

Pursuant To Rule 75.01, Phelps County Cir-

cuit Court Case Number CV393-021/CC and

Appellants' Legal File On Appeal Number

18888-2 In the Missouri Court of Appeals

Southern District, pages 10 and 28.

2. All of the pleadings, notices and

motions mentioned in the above paragraph

were Signed by Kenneth E. Hawley. Ibid.

3. The defendants were directed by the

clerk to serve a copy of their pleading

upon Kenneth Hawley at his address.

Appellants' Legal File On Appeal, supra,

gates Zz, 4. 6 8. WW. Bs 23. ond 2D.

4. In the Case History in the Phelps

County Circuit Court, on page 3, the first

entry for 05/03/93 identifies the attorney

in fact that filed the amended petition as

a "third party."

5. On June 10, 1993, at the only court

hearing in this case, Hawley was the only

party that spoke to the court. The peti-

tioners were also present but they did not

say even one word. See Appeliants' Irans-

cript On Appeal, pages 2-4.

6. I was named in the judoment of the

Phelps County Circuit Court, but not by. my

name. Instead of my name, I was identified

by my statutory title of "attorney in

fact" and by the word "person" as is indi-

cated in the quotation below.

"Case dismissed. The motions to dismiss

filed by defendants herein are sustain-

ed as plaintiff's petition is filed by

‘attorney in fact' [Kenneth E. Hawley]

not by ‘attorney at law’ and therefore

is subject to dismissal because of the

unauthorized practice of law by a

person {Kenneth E. Hawley] who is not

issourl. bouglasE. Long, ire, judge.”

7. The minutes of the Phelps County

Circuit Court show that the court sent

copies of the above judgment to the fol-

lowing parties: Kenneth Hawley, the

attorneys for the defendants C. William

Lange and John Z. Williams that were not

present at the hearing, and the Phelps

County Assistant Prosecuting Attorney

Patrick King that witnessed the hearing

where I spoke for the petitioners. The pe-

titioners did not receive from the court a

copy of the judgment dismissing their

case.

8. At the direction of the petitioners,

the Phelps County Circuit Court, the

Missouri Court of Appeals, and the Supreme

Court of Missouri all communicated with

the petitioners by responding directly to

Kenneth E. Hawley at Hawley's address and

telephone number.

9, Although I have not signed any court

pleadings on appeal, I have continued to

act as the petitioner's attorney in fact

throughout all the appeals process.

Only parties may be named in the cap-

tion of the case. In general, only pro se

parties or a licensed attorney at law can

Sign and file pleadings and motions, re-

ceive responsive pleadings, notice and

docket hearings, speak as a litigant in

court, and receive the official communi-

cations of the actions of the court. From

the beginning of this action, I have been

accorded the legal rights of the petition-

ers, and have been treated and named by

the court as a third party.

STATEMENT OF THE CASE

The statement of the case in the Peti-

tion For A Writ Of Certiorari Sections A

and B on pages 3-5 are incorporated herein

by reference. The following needs to be

added at the end of Section B.

On July 30, 1993, I was criminally

charged with a non-class misdemeanor of

practicing law without a license. The

charge alleged that I made an appearance

in a representative capacity on behalf of

someone else in the Circuit Court of

Phelps County, Missouri, in the case styl-

ed John S. and Pegoy J. Risbeck v. Joseph

C. Bond, et. al, No. CV393-021/CC in vio-

lation of Section 484.020, RSMo.

I challenged the constitutionality of

the statute, alleging that it violated the

due process Clause of the Missouri and the

United States Constitutions. I also de-

fended my action by a claim of right under

the First Amendment of the Constitution of

the United States and by the authority gi-

ven in Section 404.710 RSMo (1992 Supp.)

which outlines the authority, rights and

privileges of an attorney in fact.

As a result of my affirmative defenses,

and without obtaining any concessions,

promises or plea agreements from me, on

January 20, 1994 the prosecuting attor-

ney dismissed the charge.

SUMMARY OF ARGUMENT

In reviewing a statute affecting First

Amendment rights, this court should also

consider other possible factual applica-

tions in addition to the facts in the case

at bar. A criminal prosecution resulted

from the events of this case. The facts

and issues in the criminal case also has a

direct effect on obtaining a just outcome

of the petitioners' case. The facts and

constitutional issues associated with the

criminal case should also be considered in

reviewing the petitioners’ case.

The trial court's actions provide evi-

dence that the judgment dismissing peti-

tioners' case, was based upon the statutes

that define the practice of law and which

prohibit the practice of law by any person

that is not duly licensed therefore. If

these statutes are found to be unconstitu-

tionally vague, then the order dismissing

the case is a nullity.

In determining the constitutionality of

a statute affecting First Amendment free-

doms, the court applies strict standards

requiring very specific and narrowly writ-

ten regulations in order to avoid, in the

Statute's application, the infringement of

First Amendment freedoms.

A statute is unconstitutionally vague

when it fails to give notice as to whom it

applies, or fails to give notice as to

what is prohibited. Vague statutes violate

the principles of the due process clause.

The associated criminal case that charged

respondent with practicing law without a

license, provides probative evidence that

the Missouri statutes prohibiting the

oractice of law by unlicensed persons are

unconstitutionally vague.

Missouri's practice of law statutes are

unconstitutionally vague because they fail

to make clear whether a personal appear-

ance as an attorney in fact in a fiduciary

capacity, and the execution and filing of

a petition in that capacity, is or is not

the appearance as an advocate in a repre-

sentative capacity.

Missouri courts have declared that they

will not be hindered by the legislature in

their function of defining and regulating

the practice of law. By not defining the

oractice cf law, the court decides on a

case by case basis what is or is not the

unauthorized practice of law. This results

in the court constructing statutes, with-

out any enforceable standard. This prac-

tice violates due process principles as

expressed by this court.

The statute says an attorney in fact

can execute and deliver petitions and the

respondent and petitioners in good faith

acted upon that authority. Ihe Court of

Appeals, in affirming the trial court's

dismissal of the case, says such an attor-

rey in fact must also be an attorney at

law. This limitation to the statute that

was added by the court, conflicts with the

authority granted in the statute in a man-

ner that unjustly punishes the petitioner

for doing what the statute says can legal-

ly be done. In addition the Court of

Appeals ruling creates a crime, nunc pro

tunc, that originates in the common law

which is contrary to Missouri's criminal

code.

ARGUMENT SECTION

A. Court Can Consider Applications Of

Statute In Other Factual Contexts

In considering the allegations that the

statutes are unconstitutional which are

raised in this brief and in the petition

for writ of certiorari filed herein, this

court should not limit its consideration

to just the facts that are included in the

petition for writ of certiorari. Since the

rights of the petitioners and myself,

acting as their attorney in fact, are in-

separable, the constitutionality and the

inhibiting effect of the application of

section 484.020 RSMo in the State's at-

tempt to convict me for practicing law

without a license should also be consid-

ered. The concept of not limiting the

Court's consideration to just the facts at

Dar is well established in First Amendment

Cases.

"Furthermore , the instant decree may

be invalid if_it prohibits privileged

exercises of First Amendment rights

whether or not the record discloses

that the petitioner has engaged in pri-

Vileged conduct. For in appraising a

Statute's inhibitory effect upon such

rights, this Court has not hesitated to

take into account possible applications

of the statute in other factual con-

texts besides that at bar....Ccitations

omitted] It makes no difference that

the instant case was not a criminal

prosecution and not based on a refusal

to comply with a licensing require-

ment.” M, A. A. C. FP. ¥, Sutton. supra.

Ss. 432.

B. Trial Court Acted In Reliance Upon

Sections 484.010 And 484.020 RSMo 1986

That the trial court sustained respon-

dent's motions to dismiss in reliance upon

Sections 484.010 and 484.020 RSMo 1986 is

evident in the following ways:

1. The motion to dismiss filed by C.

William Lange, which the court sustained,

referred to Chapter 484 for authority in

support of the motion.

2. The trial court confessed belief in

a law that makes filing a petition or ap-

a a ee ae ne ee ee

ENS. Ba ANT Oa ia tiNG A HD A Lt Nae

Dicitirs tients bela eee

pearing for someone without having a bar

number to be the unauthorized practice of

law.

3. The trial court, after sustaining

respondent's motions to dismiss:

A. called for the prosecuting attorney,

B. asked the prosecuting attorney to

take note that I was not admitted to the

Bar in Missouri and was practicing law in

the Courts of Phelps County, and

C. turned the case over to the pro-

secuting attorney. See Transcript p. 4.

If Sections 484.010 and 484.020 RSMo

are unconstitutional, as petitioners and

this respondent allege, then the judgment

dismissing petitioners’ case is a nullity.

C. Strict Standards Apply To Regulations

In The Area Of First Amendment Freedoms

The practice of law statutes impose

Criminal sanctions upon and severely limit

the exercise of the Constitutionally Quar-

anteed rights of freedom of speech, assem-

bly and to petition the government.

In the case at bar, petitioners, in the

Petition For A Writ Of Certiorari outline

their claim of right under the First

Amendment to have an attorney in fact

speak for them in the state's court, on

pages 25-34. By stating that the policy of

the court and its application of Section

484.020 RSMo 1986 is in conflict with the

First Amendment, and by the statement that

28 USC § 2403(b) may be applicable, the

petitioners are challenging the constitu-

tionality of the state statute.

This court should not presume that the

Statute and the Missouri court policy cur-

tails constitutionally protected activity

as little as possible. The principles in

N.A.A.C.P. v. Button are controlling

here.

"If the line drawn by the decree be-

Pee Pee ye ey Tor

tween the permitted and prohibited ac-

Civities of the NAACP, its members and

lawyers is an ambiguous one, we will

not presume that the statute curtails

constitutionally protected activity as

little as possible. For standards of

permissible statutory vagueness are

Strict in the area of free expression."

Peete v. Button, supra. U.S. p.

"Because First Amendment freedoms need

breathing space to survive, government

may regulate in the area only with

narrow specificity.” Ibid. at U.S. 433.

D. Vague Statutes Violate Principles Of

Due Process

That the definitions for the practice

of law and the doing of law business in

Section 484.010 RSMo 1986 are unconstitu-

tionally vague are manifested in the facts

arising from this case. Judge Douglas E.

Long, Jr. dismissed the petitioner's case

on belief that the statutes prevented me

from executing and delivering a petition

and appearing with the petitioners in the

Phelps County Circuit Court. But the pros-

ecuting attorney was convinced by my af-

firmative defenses that the statute was

not adequate to convict me for appearing

with the petitioners in open court. The

judges and the prosecuting attorney dif-

ferred as to the statute's application to

the facts of this case.

That men learned in the law cannot

agree on the application of the statute,

is probative evidence that the statute is i

unconstitutionally vague. As this court

has said in Baggett v. Bullitt, 37/7 U.S.

360, 367, 12 L.Ed. 2d 377, 382, 84 S.Ct.

1316,

ducé'in terms so vague that. men of con-

mon intelligence must necessarily guess

at its meaning and differ as to its ap-

plication violates due process of law." |

Due process requires that penal statutes i

not leave room for speculation as to what

is required or forbidden.

"As a matter of due process, no one

may be required at peril of life, li-

berty or property to speculate as to

the meaning of penal statutes. All are

entitled to be informed as to what the

State commands or forbids." nes Vv.

ro. 620, 48

Mayor of Oradell, 425 U.S. 6

Ct O43. 95S ; #6 3.0%. 8758.

E. Practice Of Law Definition Fails To

Define A Key Phrase So As To Give

Notice As To Whom The Statute Applies

The definition of the practice of law

in Section 484.010.1 RSMo 1986 is uncon-

Stitutionally vague by not defining pre-

Cisely what constitutes "the appearance as

an advocate in a representative capacity,"

SO as to give notice as to whom the sta-

tute is intended to apply.

When a principal, pursuant to Section

404.710.1 RSMo (1992 Supp.),

",..delegate(s] to an attorney in fact

in a power of attorney general powers

to act in a fiduciary capacity on the

Principal's behalf..."

there is no reason to conclude that the

Statute defining the practice of law at-

taches criminal liability to someone

acting pursuant to Section 404.710.1 RSMo

Sean et

(1992 Supp.).

Without a precise definition of what

constitutes the "appearance as an advocate

in a representative capacity" making clear

that it either includes or excludes the

appearance as an attorney in fact in a fi-

duciary capacity, Section 484.010 and

484.020 are unconstitutionally vague.

F. Missouri Court Opinions Conflict With

Due Process Decisions Of This Court

Missouri's court has said,

"The legislative department, under the

police power, may enact laws declaring

that certain acts constitute unauthor-

ized practice of law and are punish-

able." Automobile Club of Missouri v.

Hoffmeister, 336 S.W. 2d 348, 355.

By implication, if the legislature can

declare that certain acts constitute the

unauthorized practice of law, they can

also declare, that certain acts that would

otherwise be prohibited, are allowed as

exceptions to the practice of law defini-

tion. For example, both Section 532.020

and 404.710 RSMo give laymen, acting on

behalf of someone else, authority to sign

petitions.

"Application for the writ shall be made

by petition, signed by the party for

whose relief it is intended, or by some

person in his behalf, to some court of

record, or to any judge thereof other

than a municipal judge." From Section

932.020 RSMo 1986.

Missouri courts have upheld this

Statute in the following way:

"The exception formulated in Hackin al-

lowed a layperson to prepare and file a

petition for writ of habeas corpus on

behalf of another;...

"This court adopts the exception

created by and the reasoning advanced

in the Hackin case....This holding ap-

plies only to the preparation and

filing of habeas petitions....Such ac-

tivity is an exception to the practice

of law definition under Section

484.010.1, supra, and therefore does

not constitute a misdemeanor." State v.

Carroll, 817 S.W. 2d. 289, 291 (Mo.

App. 1991).

In like manner, Section 404.701.4 says

in part:

"Except as provided in subsections 6

and 7 of this section, an attorney in

fact has, with respect to the subjects

Or purposes for which the powers are

conferred, all rights, power and au-

thority to act for the principal that

the principal would have with respect

to his or her own person or property as

a nondisabled and nonincapacitated a-

dult; and without limiting the forego-

ing has with respect to the subjects or

purposes of the power complete discre-

tion to act or not act, to consent or

not consent to, or withdraw consent

for, any act, and to execute and de-

liver or accept any deed,...proof of

claim, petition or other pleading,...or