IN THE SUPREME COURT OF MISSOURI

Transcription

1 IN THE SUPREME COURT OF MISSOURI The State of Missouri, ex rel. ) ANTHONY SWEARENGIN and ) TIFFANY SWEARENGIN, ) ) Relators, ) ) Vs. ) Case No. SC95607 ) ) ) THE HONORABLE R. CRAIG CARTER, ) ) Respondent. ) SUGGESTIONS OF RESPONDENT THE HONORABLE R. CRAIG CARTER IN OPPOSITION TO THE PETITION FOR WRIT OF PROHIBITION FILED BY RELATORS, ANTHONY AND TIFFANY SWEARENGIN Comes now Respondent, and offers the following Suggestions in Opposition to the Petition for Writ of Prohibition. I. INTRODUCTION This matter arises out of a single piece of paper entitled Notice to Appear Before the Truancy Court of Douglas County, Missouri ( Notice ), which was mailed to Relators on March 18, 2016, by Rose Pursell, Chief Deputy Juvenile Officer of Douglas County, Missouri. In Douglas County the Truancy Court is an informal and voluntary diversionary program, similar to truancy programs found in other counties in the State, the purpose of which is to resolve and improve attendance for at-risk students at the school level. The Petition for Writ of Prohibition is properly referred to by Relators as unusual, because it does not stem from any judicial proceeding, order, ruling or any 1

2 action or inaction by Respondent. Relators allege that Respondent acted in excess of his authority and jurisdiction by sending the Notice to Relators to require their attendance in the Truancy Court program on April 4, 2016, and by engaging in unlawful intimidation of a homeschooling family. However, there is no indication anywhere in the record that Respondent sent the Notice to Relators, or was in any way involved with drafting or sending the Notice. The primary relief sought from this Court by Relators is a writ of prohibition to prohibit Respondent from requiring Relators attendance in Truancy Court on April 4, 2016 a date which has come and gone. Thus, this matter is now moot. And although Respondent did aid in the formation of the voluntary diversionary Truancy Court program in Douglas County, Missouri, Relators grossly mischaracterize Respondent s involvement in the program by further alleging that he uses the program to: 1) misuse official-looking court documents to make it appear that attendance in Truancy Court is mandatory; 2) engage in a course of conduct likely to mislead a lay person or the public into believing an actual judicial process is pending; and 3) require Relators or other parents who withdraw their children from public school to attend Truancy Court. These conclusory statements are baseless and Relators offer no evidence or support for the veracity of these statements. As discussed herein, Respondent was not involved in sending the Notice to Relators, nor was he involved in the drafting of the Notice in this case, or any other case. He likewise has no involvement in determining who receives a notice to attend Truancy Court. Respondent did not exercise any authority or jurisdiction over Relators in this 2

3 matter, nor does he exercise any authority or jurisdiction in any other Truancy Court matter. Thus, this Court should deny the Petition for Writ of Prohibition. II. FACTUAL BACKGROUND Relators record, excluding their pleadings, consists of the Notice to Appear Before the Truancy Court of Douglas County, Missouri, and the Order of the Missouri Court of Appeals, Southern District, which denied Relators application for Writ of Prohibition. (Relators Exhibits 2 and 3). Relators have also included as exhibits to their Petition for Writ of Prohibition an Affidavit of Tiffany Swearengin 1, and a form letter presumably authored by the Juvenile Court Administrator of Cole County, Missouri. (Relators Exhibits 1 and 3). Even assuming arguendo that the facts contained in Relators Petition for Writ of Prohibition are true, the facts relevant to Respondent are straightforward and do not 1 This affidavit was initially attached to Relators Petition for Writ of Prohibition filed in the Missouri Court of Appeals, Southern District, which was denied by the Court of Appeals. The affidavit contains facts well outside the record of the Truancy Court proceeding for which Realtors Petition for Writ of Prohibition is based. As this affidavit attempts to interject facts not contained in the actual record, it should be disregarded. When reviewing a writ of prohibition, the Court s factual inquiry is limited and the suggestions and briefs [the Court] receives in connection with writs cannot supply [the Court] with record facts. State ex rel. Grimes v. Appelquist, 706 S.W.2d 526, 529 (Mo. App. S.D. 1986). 3

4 show any action taken by Respondent in excess of his jurisdiction. On March 15, 2016, Relator Tiffany Swearengin went to Ava elementary School and informed the school that she was withdrawing her son and daughter and planned to homeschool them. (Relators Exhibit 1, 11) On March 18, 2016, Chief Deputy Juvenile Officer Rose Pursell mailed the Notice to Appear Before the Truancy Court of Douglas County, Missouri ( Notice ). (Relators Exhibit 2). The Notice notified Relators and their son to appear before the Truancy Court of 44 th Judicial Circuit, at the Juvenile Court Center, on April 4, 2016 at 10:00 a.m. to discuss the school attendance of Relators son. Id. Relators received the Notice for Truancy Court on March 24, (Relators Exhibit 1, 26-28). On April 1, 2016, Relators filed their Petition for Writ of Prohibition in the Missouri Court of Appeals, Southern District, which the Court of Appeals denied that same day. (Relators Exhibit 4). III. ARGUMENT A) A Writ Of Prohibition Is Not A Writ Of Right, But Is A Remedy Reserved For Extraordinary Circumstances, Which Are Not Present Here. Relators make much of language from cases indicating that a writ such as they seek is appropriate in cases when a court, Respondent in this case, has usurped or acted in excess of his jurisdiction. However, Relators fail to show any act of Respondent related to them, let alone any act Respondent took in the underlying matter in excess of his jurisdiction. The function of a writ of prohibition is to restrict Respondent from acting in some case or proceeding in which [he] has no jurisdiction, or, having such jurisdiction, is undertaking to do some act in excess of the jurisdiction possessed State ex rel. City 4

5 of Mansfield v. Crain, 301 S.W.2d 415, 419 (Mo. App. 1957). As this Court held in Knisley v. State of Missouri, 448 S.W.2d 890, 892 (Mo. 1970): [P]rohibition is an extraordinary remedy to correct and prevent the exercise of extrajurisdictional power, is not a writ of right and should not be employed for correction of alleged or anticipated judicial errors The reviewing Court on a writ of prohibition does not concern itself with the merits of the underlying proceeding, but rather, it is only concerned with the question of jurisdiction. State ex rel. Walker v. Crouse, 205 S.W.2d 749, 750 (Mo. App. 1947). Thus, the only question for this Court is whether Respondent took an action in the underlying matter in excess of his jurisdiction. B) Relators Have Failed To Show Any Action Taken By Respondent That Would Entitle Them To A Writ Of Prohibition, Because Respondent Did Not Exercise Any Jurisdiction Or Take Any Action In The Underlying Matter. Procedurally, it is Relators burden to establish a clearly evident action on the part of Respondent that was in excess of his jurisdiction. State ex rel. Eggers v. Enright, 609 S.W.2d 381, 382 (Mo. banc 1980). There is a presumption of right action by the Respondent, and the burden is on Relators to show this Court that Respondent exceeded his jurisdiction. State ex rel. Martin v. Peters, 649 S.W.2d 561, 563 (Mo. App. W.D. 1983). Absent such showing, Relators Petition for Writ of Prohibition must be denied. Even a cursory review of this record indicates that there was no authority or excess jurisdiction exercised by Respondent in this matter. In fact, the record does not allege any act of Respondent. The crux of Relators argument is based upon the contents and their 5

6 receipt of the Notice to attend Truancy Court. Relators complain about the form and language used in the Notice, and base their request for relief in this matter on their personal interpretation of the Notice. They have not cited to any order or ruling of Respondent that would entitle them to a writ of prohibition in this case. Simply put, Relators Petition for Writ of Prohibition is devoid of any act attributable to Respondent, or that would adversely affect their rights if a writ was not granted. Relators cannot show any action taken by Respondent in excess of his jurisdiction, because there was no action taken by Respondent in the underlying matter. There is no evidence or indication anywhere in the record that Respondent: 1) Sought to compel Relators to do anything in the Truancy Court; 2) Made a ruling or entered an order in the Truancy Court process involving Relators; 3) Authored the Notice sent to Relators or participated in preparing or drafting any portion of the Notice; 4) Ordered or requested that the Chief Deputy Juvenile Officer or her office prepare and send the Notice to Relators; or 5) Ordered or threatened to order Relators or their children to appear anywhere at any time. Not one exhibit in this matter contains any evidence or indication that Respondent acted in excess of his jurisdiction, or that he even exercised any jurisdiction. The only action attributable to Respondent contained in Relators pleadings and exhibits is the unsupported claim that he established a policy that when children were withdrawn to be 6

7 homeschooled, there would be further investigation, and that a caseworker was required to come to [Relators ] house. (Relators Exhibit 1, 22). This fact is based upon unsupported hearsay statements of Assistant Superintendent of Ava R-I School District Mike Henry, and does not appear anywhere else in the documents filed by Relators. (Relators Exhibit 1, 22). Even if true, Relators have not alleged that Respondent ordered or requested that further investigation be had related to Relators or that a caseworker needed to visit their home. Given that Relators have not met their burden in showing that Respondent acted in excess of his jurisdiction, their Petition for Writ of Prohibition must be denied. C) Relators Request For A Preliminary Writ Of Prohibition To Prohibit Respondent From Mandating Their Appearance At Truancy Court On April 4, 2016, Is Moot, And Relators Lack Standing To Request The Remainder Of The Relief Sought In Their Petition For Writ Of Prohibition. The general rule in Missouri is that a writ of prohibition will not issue when the act sought to be prohibited is already done. State ex rel. Kansas City et al., v. Burney, 324 Mo. 363, 367 (Mo. banc 1929). A writ of prohibition is preventative in scope, and it cannot be used to correct proceedings already taken place. Id. Relators first request for relief in this matter is a preliminary (or peremptory) writ of prohibition and subsequent writ of prohibition to prohibit the Respondent from mandating Relators attendance in truancy court on April 4, 2016 or thereafter. (Relators Petition for Writ of Prohibition, 67). It appears that what Relators are really seeking from this Court is an injunction, which is not the purpose of a writ. The only act 7

8 complained of by Relators is the Notice they received regarding their attendance at Truancy Court on April 4, This date has come and gone, and their request for a writ to prohibit their attendance at said hearing is moot. There is no claim that any other appearance has been requested or scheduled, or that there is or will be any consequence to Relators. The purpose of a writ of prohibition is to prohibit that which remains to be done. The only real issue complained of by Relators relates to the Notice for their attendance at Truancy Court on April 4, This complaint is no longer valid. Additionally, there remains nothing left to be done in the Truancy Court matter. There is no pending case or proceeding left open in the Truancy Court related to Realtors, and they are not requested to attend Truancy Court on any future date. Therefore, Relators request for a writ of prohibition related to their attendance in Truancy Court is moot, and must be denied. Relators further request in their Petition for Writ of Prohibition additional relief related to future actions taken by Respondent that do not concern them, and for which they have no justiciable interest. Before a writ of prohibition can issue, the ground for the issuance of the writ must clearly appear and every fact requisite for its issuance be alleged. West County Care Center, Inc. v. Mo. Health Facilities Review Comm., 773 S.W.2d 474, 476 (Mo. App. W.D. 1989). A writ of prohibition is not issued when doing so would not in any way affect the interests of the person seeking the writ. Id. at 477. In order for Relators to have standing to pursue their request for a writ of prohibition, they must possess a legally cognizable interest in the subject matter of the writ. Columbia 8

9 Sussex Corp., et al. v. Mo. Gaming Commission, 197 S.W.3d 137, 145 (Mo. App. W.D. 2006). Said differently, Relators must have a legally protectable interest at stake. Id. In addition to a writ of prohibition related to the April 4, 2016, meeting, Relators also seek the following relief: 1) A writ of prohibition to permanently prohibit Respondent from misusing official-looking court documents to make it appear that attendance in Truancy Court is mandatory; 2) A writ of prohibition to permanently prohibit Respondent from engaging in course of conduct likely to mislead a lay person or the public into believing an actual judicial process is pending; and 3) A writ of prohibition to permanently prohibit Respondent from requiring Relators or other parents who withdraw their kids from public school to attend Truancy Court. (Relators Petition for Writ of Prohibition, 68-70). As stated above, there is no underlying case in this matter and there remains nothing left to be done in the Truancy Court proceeding that involved Relators. Relators involvement in the Truancy Court proceeding complained of in their Petition for Writ of Prohibition is over. The additional relief requested by Relators would presumably involve oversight of Respondent in every Truancy Court proceeding in Douglas County that Relators have no personal stake in, and which do not threaten injury to Relators in any way. That is to say, Relators have no personal interest in what documents are used, how Respondent conducts himself and the reasons why other parents are requested to appear 9

10 in all other Truancy Court matters. In order for Relators to have standing to request the relief they seek, they must have a personal stake arising from a threatened or actual injury. West County Care Center, Inc., 773 S.W.2d at 477. The only Truancy Court proceeding that involved Relators is over, and thus, there no longer exists, assuming one did in the first place, any threatened or actual injury to Relators. Relators do not have standing to insert themselves into the entirety of the Truancy Court and request relief in the form of prohibition in proceedings for which they have no personal stake or involvement. Further, this additional relief requested by Relators would require this Court, or possibly some other entity, to continually monitor and supervise the actions of Respondent in all Truancy Court proceedings for an indefinite period of time. That is not the purpose of a writ of prohibition and would create an absolute hardship and undue burden on the Court. Therefore, because the relief requested by Relators in their Petition is either moot or they lack the necessary standing to request such relief, Relators Petition for Writ of Prohibition must be denied. IV. CONCLUSION The one and only issue for this Court is whether Respondent took an action in the underlying Truancy Court matter that involved Relators in excess of his jurisdiction. There is a presumption of right action by the Respondent, and the burden is on Relators to establish a clearly evident action on the part of Respondent that exceeded his jurisdiction. Relators do not cite to any act attributable to Respondent in their Petition, and thus, they cannot show that Respondent usurped his jurisdiction. Therefore, Relators 10

11 have failed to prove the first element necessary for issuance of a writ of prohibition an action taken by Respondent that exceeded his jurisdiction. The only real act complained of by Relators is the Notice mailed to them regarding their attendance at Truancy Court on April 4, 2016 a Notice not issued or mailed by Respondent. This date has come to pass, which makes Relators request for a writ to prohibit their attendance at said hearing moot. Further, the relief sought by Relators goes well beyond any cognizable interest they possess in the subject matter of the writ they request. Relators have no personal interest in what documents are used, how Respondent conducts himself and the reasons why other parents are requested to appear in all other Truancy Court matters. Relators simply do not have standing to request the relief sought in their Petition. For these reasons, Respondent respectfully requests this Court deny Relators Petition for Writ of Prohibition. TURNER, REID, DUNCAN, LOOMER & PATTON, P.C. /s/ George W. (Jake) Reinbold, IV By George W. (Jake) Reinbold, IV Mo. Bar #

12 TURNER, REID, DUNCAN, LOOMER & PATTON, P.C East Bradford Parkway Suite A, Springfield, MO P.O. Box 4043 Springfield, MO Phone: Fax: ATTORNEYS FOR RESPONDENT 12

13 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the above and foregoing was delivered via the Missouri Court system s electronic filing service and electronic mail on this 11 th day of April, 2016, to: Scott A. Woodruff Home School Legal Defense Association One Patrick Henry Circle Purcellville, VA ScottW@hslda.org Attorney for Relators Hon. R. Craig Carter 1402 NW 10 th Ln. P.O. Box 489 Ava, MO Craig.Carter@courts.mo.gov Respondent /s/ George W. (Jake) Reinbold, IV Attorney 13