Dunivan v. State
Decision Date | 21 July 2015 |
Docket Number | No. SC 94641,SC 94641 |
Citation | 466 S.W.3d 514 |
Parties | Heath A. Dunivan, Respondent, v. State of Missouri and Missouri State Highway Patrol, Appellants. |
Court | Missouri Supreme Court |
The state and patrol were represented by Deputy Solicitor General Jeremiah J. Morgan of the attorney general's office in Jefferson City, (573) 751–3321.
Dunivan was represented by Chris Rasmussen of Deputy and Mizell LLC in Camdenton, (573) 346–9990.
The Missouri Attorney General, the State of Missouri, and the Missouri State Highway Patrol (hereinafter, “the MSHP”) appeal the circuit court's judgment overruling their motion to intervene in a sex offender registration matter filed by Heath A. Dunivan (hereinafter, “Dunivan”) and the circuit court's judgment removing Dunivan from the Missouri sex offender registry. This Court holds the attorney general is permitted to intervene as a matter of right pursuant to Rule 52.12(a)(1) because section 27.060, RSMo 2000, permits the attorney general to “appear and interplead, answer or defend, in any proceeding or tribunal in which the state's interests are involved.” This Court further holds the MSHP is permitted to intervene as a matter of right pursuant to Rule 52.12(a)(2) because the MSHP has an interest relating to the subject of the action due to its role in maintaining Missouri's sex offender registry that is not represented adequately by the local prosecuting attorney.
The circuit court misapplied the law in overruling their motion to intervene. The circuit court's judgment is reversed, and the cause is remanded.
On October 13, 1993, Dunivan pleaded guilty to one count of second-degree sex abuse, section 566.110, RSMo 1993, which required Dunivan to register as a sex offender. On March 29, 2012, Dunivan filed a petition in Laclede County circuit court to be removed from Missouri's sex offender registry and to be relieved from his obligation to register as a sex offender. Dunivan's petition sought removal from the registry pursuant to Missouri's Sex Offender Registration Act, section 589.400.8, RSMo Supp. 2009.1 Dunivan provided the Laclede County prosecuting attorney notice of his petition pursuant to section 589.400.9. This statute does not require notice be sent to the attorney general or the MSHP.
On May 7, 2013, the circuit court held a hearing on Dunivan's petition. The Laclede County prosecuting attorney represented the state. Dunivan testified about the allegations in his petition. The prosecuting attorney did not cross-examine Dunivan or offer any argument in opposition to Dunivan's petition. The circuit court granted Dunivan the relief he requested from the bench and subsequently entered a docket entry stating: “Court finds issues in favor of [Dunivan] and against [the state].” On May 20, 2013, the circuit court entered a written order that Dunivan be removed from the Missouri sex offender registry and relieved from his obligation to register as a sex offender. This order was not denominated a judgment nor was it directed at any party to take action to remove Dunivan from the registry.
On July 29, 2013, the attorney general and the MSHP received a copy of the circuit court's order. On August 19, 2013, the attorney general filed a motion to intervene as a matter of right pursuant to Rule 52.12(a) on behalf of itself and the MSHP, seeking to set aside the circuit court's order. In its motion to set aside, the attorney general argued that Dunivan's Missouri sex offender registration requirement was based upon an independent federal registration requirement and, therefore, Dunivan could not petition for removal from the Missouri sex offender registry pursuant to section 589.400.
The circuit court overruled the motion to intervene. The attorney general filed a notice of appeal with the Court of Appeals, Southern District. On February 25, 2014, the court of appeals issued a show cause order directing the attorney general to demonstrate why the intervention appeal should not be dismissed because the appeal was not taken from a final, appealable judgment. On March 6, 2014, the circuit court issued a judgment with respect to Dunivan's request for removal from the registry. The attorney general then sought an appeal from that final judgment. The court of appeals consolidated the cases and affirmed the circuit court's judgment overruling the attorney general's motion to intervene. The court of appeals did not reach the issue of whether the circuit court erred in removing Dunivan from Missouri's sex offender registry and relieving him of his obligation to register in the future. This Court granted transfer. Mo. Const. art. V, sec. 10.
The circuit court's judgment regarding intervention as a matter of right will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Johnson v. State, 366 S.W.3d 11, 20 (Mo. banc 2012). Intervention generally should “be allowed with considerable liberality.” Id. ( ).
The attorney general argues the circuit court erred in overruling its motion to intervene as a matter of right because the circuit court misapplied Rule 52.12(a)(1). The attorney general claims it has the unconditional statutory right to intervene pursuant to section 27.060.
Rule 52.12(a) governs intervention as a matter of right. Rule 52.12(a)(1) provides: “Upon timely application anyone shall be permitted to intervene in an action ... when a statute of this state confers an unconditional right to intervene....” See also section 507.090.1(1). Section 27.060 provides:
The attorney general shall institute, in the name and on the behalf of the state, all civil suits and other proceedings at law or in equity requisite or necessary to protect the rights and interests of the state, and enforce any and all rights, interests or claims against any and all persons, firms or corporations in whatever court or jurisdiction such action may be necessary; and he may also appear and interplead, answer or defend, in any proceeding or tribunal in which the state's interests are involved.
Dunivan maintains the attorney general's arguments are of no avail because the motion to intervene was not filed timely. Dunivan contends the attorney general's motion was filed ninety-one days after the circuit court's final judgment ordered him to be removed from Missouri's sex offender registry, and, therefore, the circuit court properly overruled the motion to intervene.
“[A]n application for leave to intervene subsequent to trial is unusual and seldom granted.” Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302, 304 (Mo. banc 1991). Id. (internal citations omitted) (emphasis in original). The circuit court maintains discretion to determine whether a motion to intervene is filed timely. State ex rel. Strohm v. Bd. of Zoning Adjustment of Kansas City, 869 S.W.2d 302, 304 (Mo.App.W.D.1994).
Dunivan's timeliness challenge fails for two reasons. First, the circuit court's judgment was not final at the time the attorney general sought to intervene. The circuit court must denominate its final ruling as a “judgment.” City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997). See also Rule 74.01. “The rule is an attempt to assist the litigants and the appellate courts by clearly distinguishing between when orders and rulings of the trial court are intended to be final and appealable and when the trial court seeks to retain jurisdiction over the issue.” Id. Here, the circuit court issued a docket entry on May 7, 2013, and an order memorializing that docket entry on May 20, 2013. The circuit court did not denominate its ruling as a judgment until March 6, 2014, several months after the attorney general sought to intervene and only after the court of appeals issued a show cause order to dismiss the appeal for lack of a final, appealable judgment.
Second, section 27.060 expressly states the attorney general may appear in “any proceeding or tribunal.” The statute does not contain any language restricting the time in which the attorney general may appear and defend in an action when the state's interest is involved. This Court finds the attorney general's motion to intervene before the circuit court's judgment became final was filed timely.
This Court must next determine whether a statute confers upon the attorney general an unconditional right to intervene pursuant to Rule 52.12(a)(1). The attorney general cites section 27.060, which provides the attorney general “may also appear and interplead, answer or defend, in any proceeding or tribunal in which the state's interests are involved.”
In State ex rel. Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122, 135–36 (Mo. banc 2000), this Court discussed the scope of the attorney general's powers and duties. This Court recognized the attorney general is the “only constitutional officer whose powers and duties are not specifically provided for or limited by the constitution.” Id. at 136. In the absence of specifically enumerated powers, this Court held the attorney general was vested “with all of the powers of the attorney general at common law.” Id. While the attorney general's powers are broad, they are not limitless. Id. “As with other common-law precepts, the attorney general's authority can be restricted by a statute enacted specifically for the purpose of limiting his power.” Id.
“The Missouri attorney general derives his power to represent the state from both statutory and common law.” Clark Oil & Refining Corp. v. Ashcroft, 639 S.W.2d 594, 596 (Mo. banc 1982). Chapter 27,...
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