Simmons v. McCulloch, No. ED 103304

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: ROY L. RICHTER, Judge
• Citation: 501 S.W.3d 14
• Parties: Montague Simmons, et. al., Appellants, v. Robert McCulloch, Respondent.
• Decision Date: 31 May 2016
• Docket Number: No. ED 103304

501 S.W.3d 14

Montague Simmons, et. al., Appellants,
v.
Robert McCulloch, Respondent.

No. ED 103304

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: May 31, 2016
Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2016
Application for Transfer Denied Nov. 1, 2016

FOR APPELLANT: Maggie Ellinger–Locke, 320 23rd Street S, Apt. 1224, Arlington, VA 22202.

FOR RESPONDENT: Peter J. Krane, Linda S. Levin, 41 South Central, 9th Floor, Clayton, Missouri 63105.

ROY L. RICHTER, Judge

Montague Simmons, Redditt Hudson, Juliette Jacobs, and Tara Thompson (collectively, "Appellants") appeal from the trial court's judgment granting St. Louis County Prosecuting Attorney Robert McCulloch's ("Respondent's") Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted. We affirm.

I. Background

On January 15, 2015, Appellants all filed similar affidavits alleging Respondent conducted the grand jury investigation in State of Missouri v. Darren Wilson "in an arbitrary manner and in bad faith." Appellants were dissatisfied with the grand jury returning a "no true bill," leading to no indictment of Officer Wilson. As Appellants were not present at the grand jury proceedings, the substance of their claims comes from review of the publicly released transcripts and related evidentiary exhibits of the grand jury proceedings.

Appellants wanted the trial court to appoint a special prosecutor to investigate Respondent's conduct during the grand jury proceedings. If appointed, the special prosecutor would have the authority to file a writ of quo warranto action seeking Respondent's removal from his elected office of St. Louis County Prosecuting Attorney.

Respondent filed his Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted on February 23, 2015. In the interim before a hearing could take place, the United States Department of Justice ("DOJ") issued a report on March 4, 2015, which determined that Officer Wilson had not violated 18 U.S.C. Section 242, a federal civil rights statute, when he shot and killed Michael Brown.

On April 24, 2015, the trial court conducted the first hearing in this case. The trial court then continued the hearing until May 29, 2015, giving the parties time to file supplemental briefs on the issue of whether Respondent was subject to impeachment or recall. On July 2, 2015, the trial court granted Respondent's motion to dismiss, finding Appellants had not alleged facts which constituted a willful or fraudulent violation or neglect of Respondent's official duty, and had not alleged facts which showed Respondent knowingly or willfully failed or refused to perform any official act or duty to execute or enforce the criminal laws of the state. Appellants timely filed their appeal on August 19, 2015.

II. Discussion

Appellants raise one multifarious point on appeal that alleges the trial court abused its discretion by denying their request for appointment of a special prosecutor, with six sub-points alleging specific examples of the trial court's abuse of discretion. "A single point relied on that groups multiple, disparate claims is multifarious, does not comply with Rule 84.04, and generally preserves nothing for review." Stone v. Stone, 450 S.W.3d 817, 820 (Mo.App.W.D. 2014) (quoting Rouse v. Cuvelier, 363 S.W.3d 406, 419 (Mo.App.W.D. 2012) ). While it would be "well within our

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discretion to dismiss [Appellants'] appeal on this basis[,]" we will exercise our discretion to review Appellants' claims.

A. Standard of Review

"When a petition is dismissed under Rule 55.27(a)(6) for failure to state a claim upon which relief may be granted, the standard of review is de novo. " Anderson v. Union Elec. Co., 463 S.W.3d 783, 786 (Mo. banc 2015) (citing Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008) ). This Court reviews Appellants' initial petition to determine whether the facts alleged meet the elements of a recognized cause of action. Anderson, 463 S.W.3d at 786, citing Foster v. State, 352 S.W.3d 357, 359 (Mo. banc 2011).

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.

State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009). "[W]e may affirm the trial court's dismissal on any ground before the trial court in the motion to dismiss[.]" Willits v. Peabody Coal Co., LLC, 400 S.W.3d 442, 448 (Mo.App.E.D. 2013).

B. Analysis

Appellants' sole multifarious point on appeal contains six sub-points, all of which allege different ways in which the trial court abused its discretion when it denied Appellants' request for appointment of a special prosecutor by granting Respondent's motion to dismiss for failure to state a claim.

Appellants' first sub-point alleges the trial court abused its discretion and evinced its confusion in the case by analyzing arguments Appellants never made. Appellants claim the trial court's discussion of a separate part of the relevant statute than the one upon which Appellants' argument was based shows the trial court so misunderstood the argument before it that it could not have properly exercised its discretion.

Appellants' second sub-point alleges the trial court abused its discretion by failing to apply applicable Missouri Supreme Court precedent. Appellants' argue that the trial court's failure to apply precedent and address whether Respondent abused his discretion was an abuse of discretion by the trial court.

Appellants' third sub-point alleges the trial court abused its discretion by relying on an irrelevant report issued by the United States Department of Justice ("DOJ"). Appellants claim the DOJ Report applied different standards than those used by the grand jury, and ultimately had no bearing on Appellants' request for a special prosecutor, and thus should not have been considered by the trial court.

Appellants' fourth sub-point alleges the trial court abused its discretion when it determined Professor Bennett L. Gershman's ("Professor Gershman") affidavit was not persuasive. Appellants claim this affidavit alone suffices to meet Appellants' burden to show that an investigation should commence.

Appellants' fifth sub-point alleges the trial court abused its discretion by refusing to evaluate whether the facts Appellants alleged supported their request for appointment of a special prosecutor. Appellants

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claim the trial court's judgment simply stated legal conclusions without applying the facts to the relevant law.

Finally, Appellants' sixth sub-point argues that the facts Appellants alleged in their petition suggest Respondent failed to fulfill his duties of office by his conduct during the grand jury proceedings in State v. Darren Wilson. Appellants claim they alleged facts that Respondent acted arbitrarily and acted in bad faith, and that they met the burden required to start an investigation into Respondent's conduct.

As stated above, our standard for reviewing the dismissal of a petition under Rule 55.27(a)(6) for failure to state a claim upon which relief can be granted asks this Court to "review[ ]" "the petition to determine if the facts alleged meet the elements of a recognized cause...