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VOL. 70, NO. 1 SUMMER 2023
Military & Veterans
The PACT Act: It's About
More Than Burn Pits
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6 Expungement of Criminal Convictions in Missouri
J T. MP & L S
11 The PACT Act: It's About More Than Burn Pits
J J. B
16 Special Considerations for End of Life Planning for
Veterans
S L. A
20 The Veteran's Journey
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VOL. 70, NO. 1 SUMMER 2023
4THE ST. LOUIS BAR JOURNAL
Summer 2023
The President’s Page
by Hon. Kendra Howard
administrative Judge,
u.s. equal employment opportunity Commission
bamsl president, 2023-24
Welcome to my first President’s
Page for the Bar Journal. I am
excited to introduce you to my
focus for the bar year: to encourage
diverse and talented individuals
to study law at an early age. I
am so motivated to expose
underrepresented youth to our
great profession. In reflecting on
my upbringing, I now realize that I
had certain educational privileges
that I would not have had but for
the beautiful happenstance of being
born to the parents that I have.
My parents modeled for me
and encouraged me to focus on
education. Both of my parents have
advanced degrees despite growing
up Black in the 1960s. My mom has
a Master of Science in Education
with a minor in English, a master’s
in public administration, and also
holds a Juris Doctorate. My dad
holds both a bachelor’s degree and
an MBA in finance. Given that most
all of the adults in my parents’ inner
circle were educated, I was in college
before I found out that everyone did
not go to college. While college is not
the best option for everyone, it was
an expectation of me. My parents
also ensured that I was exposed
to various career options. I was
afforded the opportunity to explore
pre-law and pre-med programs
which helped shape my vision of
how my future would look.
Consistent with my enthusiasm
for exposing youth to the law,
I stated in my recent Law Day
remarks that my focus for the
year will be on strengthening
the pipeline to professions in
the law. Increasing diversity in
the legal profession is important
for several reasons. A diverse
legal profession is better able
to serve the needs of a diverse
society. It can also help to break
down stereotypes and promote
understanding. By taking steps
to increase diversity in the
pipeline to the legal profession, we
can create a more just and equitable
society. We must give young people
without means to have exposure
to the law and an opportunity to
succeed in it. It not only provides
an opportunity for change for that
individual, but they in turn can help
their families, their neighborhoods
and subsequently their cities.
Many students from
underrepresented groups do not
have early exposure to the law or
lawyers. This can make it difficult
for them to see themselves as
lawyers and to consider a career
in law. One of the best ways
to accomplish the goal of early
exposure to the law is for the
legal community to participate in
programs that bring students from
underrepresented groups into law
schools or firms which can help
break down these barriers. There
is nothing more fulfilling than
influencing a student’s career and
changing the course of their lives. I
know it feels like an overwhelming
task, and you may be wondering
“how can I help?” or “where do I
start?” The good news is that I have
answers to those questions! Keep
reading for ways to use your skills
in a way that will have
an impact.
First, BAMSL started the St. Louis
Internship Program (SLIP), now
part of Boys & Girls Clubs of Greater
St. Louis, over 30 years ago, and
BAMSL continues to be involved in
this program today. SLIP provides
paid summer internships, intensive
work readiness training, and year-
round college and career planning
for area high school students.
5
The program exposes students to
careers in law even when their
summer job is not with a legal
entity. You can encourage your
firm to hire one of these interns
each summer or spend some time
getting to know the intern in your
office. If you don’t have an Intern,
visit BAMSL and meet our intern.
Second, BAMSL has been working
to expand its Missouri Mock Trial
Competition participation to
underrepresented diverse students
by providing training and mentoring
to students who have traditionally
been unable to compete. These
student participants will also be
provided with donated uniforms to
better equip them for competition
with schools with a long history
in the program. Get involved in
this program! We are desperate for
coaches, jurors and judges, and we
are especially in need of coaches
and teams in our underrepresented
communities. Do you know someone
in these schools who can open that
door? We will help find coaches.
Third, BAMSL plans to implement
a mentoring program to provide
diverse high school and college
students with access to lawyers
working in the field to learn first-
hand what a legal career is like.
Additionally, we will connect
experienced BAMSL members
with law school student members
seeking connections. Any
mentoring you volunteer for will
be organized so you do not have to
think of ways to interact with
the students.
Fourth, BAMSL plans to work with
Street Law, Inc. to bring law-related
exposure into the classrooms of
underrepresented diverse students.
A 2018 study found that over half of
law students made the decision to
go to law school before becoming
undergraduates. Therefore, Street
Law’s Diversity Legal Pipeline
Program focuses on high school
students by providing volunteer
legal professionals to teach lessons
and lead activities designed to
increase students' knowledge and
interest in the law and legal careers.
Programs such as these are vital
to exposing young students to the
vast options of careers in law. We
will need many volunteers for this
effort, and I encourage you to read
LegalPulse and the BAMSL social
media outlets for announcements
on how to volunteer for this effort,
as well as others.
We recognize that everyone has
some time constraints. With each
volunteer opportunity, we will tell
you exactly what is required and the
expected time commitment.
By taking steps to increase
diversity in the pipeline to the
legal profession, we can create
a more just and equitable legal
profession that reflects our diverse
society. BAMSL is well on the way
to making change in many lives
and you do not want to miss the
opportunity to be a part of
that change.
Ready to get involved? Please email
me at president@bamsl.org so we
can discuss how you can change
a life.
Consistent with my enthusiasm for exposing
youth to the law, I stated in my recent Law
Day remarks that my focus for the year
will be on strengthening the pipeline to
professions in the law.
"
"
6THE ST. LOUIS BAR JOURNAL
Summer 2023
Expungement of Criminal Convictions
in Missouri
by Jeffery T. McPherson and Lauren Smith
any people face ongoing
limitations due to past criminal
convictions.1 Options for housing,
employment, and economic and
social advancement can be limited
by convictions from years or even
decades earlier.
Expungement of criminal records
is part of the Missouri General
Assembly’s balancing of individual
privacy and personal information,
on one hand, against the general
policy that governmental records
should be open to the public on the
other. Indeed, the Missouri statutes
relating to expungement and
closing of certain criminal records
were codified in Chapter 610 of the
Revised Statutes of Missouri.2 Later,
when the Missouri Sunshine Law
was enacted, setting forth a general
state policy favoring openness
in public meetings and records,3
it was also included in Chapter
610.4 In rejecting challenges to the
enactment of the Sunshine Law,
the Missouri Supreme Court held
that these two topics were logically
related.5
In recent years, this legislative
balancing has tilted toward
permitting expungement of a
wider range of convictions.6 The
most recent broadening of the
power of expungement took place
in 2021.7
The availability of expungement
is a significant issue for military
veterans who are hindered by past
convictions.8 Roughly 200,000
service members transition
out of military service and into
civilian life each year.
9
Most do so
successfully, while others face a
more challenging transition that
leads to involvement with the
criminal justice system.10 One in
three of the nation’s 19 million
veterans reported having been
arrested and booked at least once,
and approximately 181,000 are
incarcerated in local, state, or
federal facilities.11 Incarceration
can negatively impact the
amount or availability of benefits
a veteran may be eligible to
receive.12 Disability compensation
payments can be reduced if a
veteran is imprisoned for a felony,
and pension payments can be
terminated.13 Legal assistance
with expungement of criminal
convictions has been identified by
the VA as one of the top 10 unmet
needs of veterans.14
This article addresses the
requirements of the general
Missouri expungement statute,
which is applicable not only to
veterans but to “any person”
seeking expungement of records
relating to past arrests or
convictions.15 While the statute also
provides for expungement of arrest
records in specified circumstances,
this article addresses only
the expungement of criminal
convictions.16
Procedure under the general
Missouri expungement
statute
Section 610.140 sets out the
requirements for expungement
of criminal convictions, providing
that “any person may apply to
any court in which such person
was charged or found guilty
of any offenses, violations,
or infractions for an order to
expunge records of such arrest,
plea, trial, or conviction.”17 It
has been held that the current
version of this statute operates and
applies retrospectively because
expungement statutes are remedial
and should be liberally construed,
and because the legislature has not
expressly stated that the statute
operates prospectively.18
7
An action to expunge records is
commenced by filing a petition in
the circuit court of the county in
which the petitioner was charged
or found guilty.19 The petition is
required to name as defendants
“all law enforcement agencies,
courts, prosecuting or circuit
attorneys, municipal prosecuting
attorneys, central state repositories
of criminal records, or others
who the petitioner has reason to
believe may possess the records
subject to expungement for each
of the offenses, violations, and
infractions listed in the petition.”20
An order of expungement shall
not affect any person or entity
not named as a defendant in the
action.21 A victim of an offense
listed in the petition has the right
to be heard at any hearing on the
petition, “and the court may make
a determination based solely on
such victim’s testimony.”22
Not all convictions may be
expunged. The statute sets forth
categories of offenses, violations,
and infractions that are ineligible
for expungement.23 The exceptions
are numerous, including class
A felonies; “dangerous” felonies
as defined by statute;24 offenses
that require registration as a sex
offender; felony offenses where
death is an element of the offense;
felony assault; misdemeanor
or felony domestic assault; and
felony kidnapping.25 In particular, a
violation of a provision regulating
the operation of motor vehicles
when committed by a person who
possesses or is required to possess
a commercial driver's license is not
eligible for expungement.26
There are limits on the number of
convictions that may be expunged.
A person may be granted more
than one expungement, provided
that during the person’s lifetime,
the person may not obtain
expungement of more than
two misdemeanor offenses or
ordinance violations that have an
authorized term of imprisonment.27
A person may be granted no more
than one expungement of a felony
offense in the person’s lifetime,
though multiple offenses that are
charged together or that are part
of the same course of conduct
may be counted as a single
offense.28 A person may be granted
expungement for any number
of infractions.29
The timing of a petition for
expungement is important.
Expungement is available if, at
the time the petition is filed,
it has been at least three years
(if the offense is a felony) or at
least one year (if the offense is a
misdemeanor, municipal offense,
or infraction) from the date that
the petitioner completed any
“authorized disposition” for the
conviction (such as payment
of a fine or serving a term of
imprisonment or probation).30 In
addition, the person must not have
been found guilty of any other
misdemeanor or felony for at least
the last three years (if the offense
is a felony) or at least one year
(if the offense is a misdemeanor,
municipal offense, or infraction)
before the petition is filed.31
In addition to these two timing
requirements, there are four more
statutory criteria for the court to
consider: whether the person has
satisfied all obligations relating to
the disposition of the conviction,
including the payment of any fines
or restitution; whether the person
has any charges pending; whether
the person’s “habits and conduct”
demonstrate that the person
is not a threat to public safety;
and whether expungement is
consistent with the public welfare
and the interests of justice.32
If the court determines that the
person meets all the criteria,
“the court shall enter an order
of expungement.”33 If the court
determines that the petitioner
has not met the criteria, “or
the petitioner has knowingly
provided false information in the
petition,” the court is to enter an
order dismissing the petition.34
“Any person whose petition for
expungement has been dismissed
by the court for failure to meet the
criteria set forth in subsection 5 of
this section may not refile another
petition until a year has passed
since the date of filing for the
previous petition.”35
Jeery T. McPherson practices law at Armstrong Teasdale LLP in
Clayton. He is a Fellow of the American Academy of Appellate Lawyers,
a Member-at-Large of the BAMSL Board of Governors, and a founder of
BAMSL’s Veterans Committee. He received a B.A. from Southern Illinois
University Carbondale and his J.D. from St. Louis University School of Law.
Lauren Smith is Legal Counsel at Lumeris in Maryland Heights. She
obtained degrees in psychology and sociology from the University of
Missouri and received a dual J.D./MHA degree from the University of
Missouri School of Law and the University of Missouri Department of
Health Management and Informatics. She serves as Chair of the Bridging
the Gap Committee for BAMSL’s Young Lawyers Division.
8THE ST. LOUIS BAR JOURNAL
Summer 2023
Effects of expungement
There are three major
consequences of the entry of a
judgment of expungement.
First, the person’s rights that
were restricted as a collateral
consequence of the conviction
are restored upon issuance of
the order of expungement. With
some exceptions, “the effect of
such order shall be to restore such
person to the status he or she
occupied prior to such arrests,
pleas, trials, or convictions as if
such events had never
taken place.”36
Second, access to records of
the petitioner’s convictions is
restricted: “The records and files
maintained in any administrative
or court proceeding in a municipal,
associate, or circuit court for any
offense, infraction, or violation
ordered expunged under this
section shall be confidential and
only available to the parties or by
order of the court for good cause
shown. The central repository
shall request the Federal Bureau
of Investigation to expunge the
records from its files.”37
Third, with some exceptions, a
person “may answer ‘no’ to an
employer's inquiry into whether
the person has ever been convicted
of a crime” if the person has no
public record of a conviction.38 A
person who has been granted an
expungement cannot be found
guilty of perjury or giving a false
statement for “failure to recite or
acknowledge such arrests, pleas,
trials, convictions, or expungement
in response to an inquiry made of
him or her and no such inquiry
shall be made for information
relating to an expungement, except
the petitioner shall disclose the
expunged offense, violation, or
infraction to any court when asked
or upon being charged with any
subsequent offense, violation,
or infraction.”39
An expungement does not
completely eradicate a conviction.
For example, an expunged offense
may be considered a prior offense
in determining a sentence for a
subsequent offense.40
A prospective employee must
still disclose an expunged offense
when disclosure is necessary
to complete any application for
some professional licenses and
employment in industries such as
gaming, law enforcement, banking,
insurance, or for employment
with an employer that is required
to exclude applicants with
certain criminal convictions from
employment due to federal or state
requirements.41
Other sources of relief
There are several provisions of
law relating to relief from prior
criminal convictions that are
beyond the scope of this article.42
In addition to the general Missouri
expungement statute, the Missouri
General Assembly has enacted
a number of provisions over the
years allowing expungement for
particular offenses.43 For example,
there is a specific Missouri statute
for expungement of alcohol
offenses of minors.44 There is a
separate statute for expungement
of a first alcohol-related driving or
boating offense.45 Another statute
provides for expungement of
convictions for persons who are
later exonerated as a result of DNA
evidence.46 A person who at the
time of the offense was under the
age of 18 may obtain expungement
of a conviction for the offense of
prostitution.47 A victim of identity
theft or mistaken identity may
obtain expungement of criminal
records “as a result of another
person using the identifying
information of the named
person.”48
Under the Missouri Constitution,
the Governor has the power to “to
grant reprieves, commutations
and pardons, after conviction,
for all offenses except treason
and cases of impeachment, upon
such conditions and with such
restrictions and limitations as
he may deem proper, subject
to provisions of law as to the
manner of applying for pardons.”49
The Missouri Department of
Corrections warns that a pardon
is not the expungement of a
criminal record: “The criminal
history record maintained by the
Missouri State Highway Patrol
will be updated to include pardon
information, but it will still be
maintained as an open record and
will be available to the general
public.”50
Federal expungement provisions
are also beyond the scope of
this article. While there is no
general federal expungement
statute, there are federal statutes
authorizing expungement in
limited circumstances.51 Some
federal courts have recognized a
power of judicial expungement in
some circumstances, though the
existence and extent of this power
is far from settled.52
Expungement of marijuana
convictions under the
Missouri Constitution
On November 8, 2022, Missouri
9
voters approved a ballot initiative
called Amendment 3 that amended
the Missouri Constitution to make
marijuana legal under state and
local law for adults 21 years of age
or older.53
A key element of Amendment 3
is to provide for expungement of
certain marijuana-related offenses.
It contains detailed requirements
for providing expungement for
persons currently confined or on
probation or parole for certain
marijuana offenses.54 As to past
marijuana offenses, Amendment 3
requires circuit courts to order the
expungement of criminal history
records.55 Some Missouri courts
have issued orders relating to
compliance with Amendment 3.56
Notably, in connection with the
needs of veterans, Amendment 3
imposes a sales tax on the retail
price of recreational marijuana,
with the proceeds of the tax to
be paid to the “Veterans, Health,
and Community Reinvestment
Fund.”57 One third of this fund is
to be transferred “to the Missouri
veterans commission and allied
state agencies, as determined by
appropriation, exclusively for
health care and other services
for military veterans and their
dependent families,” while one
third is to provide grants for drug
programs, and another third is to
fund the Missouri public defender
system.58
1 For example, in Missouri, a person
convicted of a felony “shall be
forever disqualied from serving
as a juror.” See § 561.026.3, RSMo.
Convictions can also affect the
right to possess rearms. See, e.g., §
571.101, RSMo; § 571.070, RSMo.; 18
U.S.C. § 922.
2 See § 610.100 et seq., RSMo. 1969.
This statute provided in part for
records of arrests that did not result
in charges to be expunged and for
records of prosecutions that did not
result in conviction to be closed. See
State v. Massa, 512 S.W.2d 912, 914
(Mo. App. St.L.D. 1974).
3 The provisions of the Sunshine
Law “speak loudly and clearly
for the General Assembly that its
intent ... was that all meetings of
members of public governmental
bodies [with specied exceptions]
at which the peoples' business
is considered must be open to
the people and not conducted in
secrecy, and also that the records
of the body and the votes of its
members must be open.” Cohen
v. Poelker, 520 S.W.2d 50, 52 (Mo.
banc 1975). In its current form, this
broad public policy of openness is
expressed in section 610.011, RSMo.
4 See § 610.010 et seq., RSMo.; Cohen,
supra note 3, at 52.
5 The Missouri Constitution
provides that no bill may contain
“more than one subject which shall
be clearly expressed in its title.”
Mo. Const., art. III § 23. Cohen
rejected a claim that the Sunshine
Law requiring open meetings and
records was not logically related
to the closing and expungement
of arrest records. See Cohen, supra
note 3, at 53.
6 See Raymond Lee, Expungement
Expansion: Missouri Makes More
Misdemeanors Moot, 84 mo. l. rev.
199
(2019).
7 See A.L. 2021 S.B. 26.
8 For example, the Kaufman Fund
(www.thekaufmanfund.org) is
a non-prot organization that
supports veterans and their families
in the St. Louis area. It provides
many services entirely free of
charge, including food assistance,
a mental health collaborative, and
a program to provide dental care.
The Kaufman Fund’s legal program
provides services in a number
of areas, and one of the areas of
greatest demand by local veterans
is help with expungement of past
convictions.
9 CounCil on Criminal JustiCe, veterans
JustiCe Commission, Honoring Service,
Advancing Safety: Supporting
Veterans from Arrest Through
Sentencing (March 2, 2023).
10 Id.
11 Id.
12 u.s. dept. of veterans aff., veterans
benefits administration, Justice
Involved Veterans Fact Sheet (August
2020) (available at https://benets.
va.gov/BENEFITS/factsheets/misc/
JusticeInvolved.pdf). Benets
offered by the VA include disability
compensation, pension, education
and training, healthcare, home
loans, insurance, veteran readiness
and employment, and burial.
13 Id.
14 u.s. dept. of veterans aff.,
Community Homelessness
Assessment, Local Education and
Networking Groups (CHALENG)
Fact Sheet (April 2022) (available at
https://www.va.gov/HOMELESS/
docs/CHALENG-2020-508.pdf).
15 See § 610.140, RSMo.
CONTINUED ON PAGE 10
10 THE ST. LOUIS BAR JOURNAL
Summer 2023
16 See § 610.122, RSMo. (specifying
arrest records that may be
expunged); § 610.123, RSMo.
(specifying procedure for seeking
expungement of arrest records);
T.V.N. v. Missouri State Highway
Patrol, 592 S.W.3d 74 (Mo.App. W.D.
2019).
17 See § 610.140.1, RSMo. Missouri
Supreme Court Rule 155 also
contains provisions relating to
procedure in expungement cases.
Expungement resources are
available on the Missouri courts
website (www.courts.mo.gov/page.
jsp?id=191585). The Missouri Bar
has a page with some explanatory
material about expungement
and links to resources (www.
missourilawyershelp.org/legal-
topics/understanding-missouris-
new-expungement-law/).
18 See S.E.M. v. St. Louis County, 590
S.W.3d 378, 381 (Mo.App. E.D. 2019).
19 See § 610.140.1, RSMo; Supreme
Court Rule 155.01.
20 See § 610.140.3, RSMo; Rule
155.04(a).
21 See § 610.140.3, RSMo.
22 See § 610.140.5, RSMo.
23 See L.F.W. v. Missouri State
Highway Patrol, 585 S.W.3d 846, 849
(Mo.App. W.D. 2019). It has been
held that a person is not entitled to
expungement of convictions within
these statutory exceptions, even
if the charged conduct could have
supported convictions for violations
eligible for expungement. See
Perkins v. Bridgeton Police Dep't, 549
S.W.3d 504 (Mo.App. E.D. 2018).
24 § 566.061(19), RSMo.
25 See § 610.140.2, RSMo.
26 See § 610.140.2(10), RSMo.; L.F.W.,
supra note 23, at 850.
27 See § 610.140.12, RSMo.
28 See § 610.140.12(2), RSMo; N.M.C.
v. Missouri State Highway Patrol, 661
S.W.3d 18, 24 (Mo.App. W.D. 2023).
29 See § 610.140.12, RSMo.
30 See § 610.140.5(1), RSMo.
31 See § 610.140.5(2); R.G. v. Missouri
State Highway Patrol, 580 S.W.3d
38, 41 (Mo.App. W.D. 2019); G.E.D. v.
Missouri State Highway Patrol, 591
S.W.3d 922, 926 (Mo.App. S.D. 2020).
32 See § 610.140.5(3-6), RSMo.
33 See § 610.140.7, RSMo.; see R.H.
v. Missouri State Highway Patrol,
578 S.W.3d 398, 403 (Mo.App. E.D.
2019) (“In order to be entitled to
expungement of the second-degree
burglary conviction, Appellant was
required to satisfy the six statutory
criteria for expungement set forth
in Section 610.140.5.”).
34 See § 610.140.11, RSMo.
35 See § 610.140.11, RSMo.
36 See § 610.140.8, RSMo.
37 See § 610.140.7, RSMo.
38 See § 610.140.10, RSMo.
39 See § 610.140.8, RSMo.
40 See § 610.140.8, RSMo.
41 See § 610.140.9, RSMo.
42 The Collateral Consequences
Resource Center (ccresourcecenter.
org) provides information about
legal restrictions after a criminal
conviction. Its Restoration of
Rights Project (ccresourcecenter.
org/restoration-2/) compiles
information about expungement
and related issues in federal and
state jurisdictions.
43 The general expungement statute
does not affect any right to relief
under other expungement statutes:
“Nothing in this section shall be
construed to limit or restrict the
availability of expungement to any
person under any other law.” §
610.140.14, RSMo.
44 See § 311.326, RSMo: “After a
period of not less than one year
after reaching the age of twenty-
one a person who has pleaded
guilty to or has been found guilty
of violating section 311.325 for the
rst time, and who since such
conviction has not been convicted
of any other alcohol-related
offense, may apply to the court in
which he or she was sentenced
for an order to expunge all ofcial
records of his or her arrest, plea,
trial and conviction.”
45 See § 610.130, RSMo.
46 See § 650.058.4, RSMo.
47 See § 610.131, RSMo.
48 See § 610.145, RSMo.
49 See Mo. Const., art IV, § 7; §
217.800, RSMo (specifying that
the governor may grant pardons
“with such conditions and under
such restrictions as he may think
proper,” subject to some procedural
and reporting requirements).
50 See https://doc.mo.gov/divisions/
probation-parole/executive-
clemency
51 See, e.g., 18 U.S.C. § 3607
(authorizing special probation
and expungement for some drug
possession offenses).
52 See, e.g., United States v. Trzaska,
781 F. App'x 697 (10th Cir. 2019).
53 See Mo. Const., art XIV, § 2.1.
54 See Mo. Const., art XIV, § 2.10(7).
55 See Mo. Const., art XIV, § 2.10(8).
56 See, e.g., Twenty-Second Judicial
Circuit Administrative Order 2022-
14 (Dec. 8, 2022).
57 See Mo. Const., art XIV, § 2.6(2).
58 See Mo. Const., art XIV, § 2.6(2)(c).
11
The PACT Act: It’s About More
Than Burn Pits
by Jeffery J. Bunten
Jeffrey J. Bunten is a solo practitioner, with an ofce in
Chestereld, who practices in the areas of veterans disability
compensation and pensions, and Social Security Disability and
Supplemental Security Income (SSI). He has an active practice
representing veterans before the Department of Veterans Affairs
at all levels. He has served as chair of a number of BAMSL
committees, most recently the Veterans Committee from July 2022
through April 2023, as well as the Administrative Law Committee
and the Solo & Small Firm Section. He served on the Board of
Directors for the National Organization of Veterans Advocates
(NOVA). He is a graduate of the University of Missouri - Kansas
City School of Law and the University of Missouri - St. Louis.
he PACT Act of 2022, more fully
known as PL 117-168, Sergeant First
Class Heath Robinson, Honoring Our
Promise to Address Comprehensive
Toxics Act of 2022, represents the
biggest expansion of Veterans
Affairs benefits in history. The Act
expanded the list of presumptive
conditions available to veterans, and
also greatly increased the concept
of toxic exposure, risk, and activity
associated with military service
on both foreign and domestic
bases. This article will provide a
summary of the basic elements of a
compensation claim, and the basic
elements of the PACT Act.
Basic Elements of a VA
Compensation Claim
In order to understand how the
VA processes PACT Act claims,
one must be familiar with how
the VA processes claims for
compensation, more commonly
referred to as service-connected
claims. A number of elements
must be established, including
active-duty service; the absence of
a dishonorable discharge; an injury
or event in service while on active
duty; a current diagnosis; and a
nexus or connection between the
in-service active-duty injury or
event, and the current diagnosis.1
Regarding elements of claims,
the VA has created a number of
presumptions. These presumptions
remove the need for evidence relative
to the elements of nexus and/or
injury/event. The PACT Act added
presumptions for Persian Gulf War
veterans and post-9/11 veterans.2
In addition to presumptive
conditions, the VA also uses the
concept of secondary service-
connection. A secondary condition
is one that is related to and/or
caused by the primary service-
connected condition.3
Another method the VA uses in
analyzing claims for compensation
is the concept of aggravation. An
example of this might be a veteran
who had a non-symptomatic
asthma, that upon admission to
the military is extraordinarily mild.
That veteran, however, as a result of
service might develop asthma that
requires inhalers, and perhaps a
breathing machine. In that case, the
VA would consider the concept of
aggravation as a non-symptomatic
condition worsened in severity as a
result of service presumptive.4
The VA also uses a framework for
making decisions that may be
unfamiliar to those who practice
in workers’ compensation or
other civil litigation. The burden
of proof, of course, is always upon
the claimant to go forward with
evidence in a claim. However,
statutorily, the VA has an obligation
to consider the benefit of the doubt.
The benefit of the doubt statute
requires where that there is an
approximate balance of positive
and negative evidence, the benefit
of the doubt is given to the veteran.
This applies to any issue, not just
the ultimate decision or claim.5
The PACT Act
The PACT Act was signed in honor
of Sergeant First Class Heath
Robinson, who died of lung cancer
at the age of 39. It became effective
August 10, 2022. The Act added
more than 20-plus presumptive
conditions for Persian Gulf War
and post-9/11 veterans. The Act
also added two more conditions for
Vietnam-era veterans exposed to
12 THE ST. LOUIS BAR JOURNAL
Summer 2023
herbicides, and greatly expanded
the conceded locations for herbicide
exposure. The Act also expanded
locations where veterans had been
exposed to ionizing radiation.
The main presumptions relative to
the PACT Act are contained in 38
U.S.C. § 1119. These presumptions
are toxic exposure for Gulf War, and
post-9/11 veterans; veterans exposed
to Agent Orange, otherwise known
as herbicide agents; and veterans
who were exposed to radiation
activity. It also greatly expands
the concept of Toxic Exposure Risk
Activity (TERA), based upon an
Individual Longitudinal Exposure
Record (ILER).
The TERA expands upon the notion
of an injury, or event in service. The
Act requires an examination when
there is a notation the veteran
had a TERA. This examination,
however, in screening, might
be very gross. The veteran may
only be asked questions related
to Agent Orange exposure, Burn
Pit exposure, particulate matter,
radiation exposure, and whether
or not the veteran believes they
were exposed to any other toxins.
While expanding upon the notion
of injury or event in service,
the screening will not be highly
detailed.6 The list of EPA Superfund
cleanup sites that are military bases
or former military bases on the EPA
website contains more than 100
locations. A veteran may or may
not be aware of any exposure to
toxins as a result of their service.
Thus, the conclusion of this author
is that the examinations will be
very gross, and not highly specific
to the veteran, unless the veteran is
more informed than usual.
The TERA will also consider the
Individual Longitudinal Exposure
Record (ILER), that is currently
maintained by the Department of
Defense, or its successor system
of records. The Department of
Defense began keeping records
of potential exposure to toxic
material and hazardous material
around the year 2000.
For those practitioners representing
veterans, caution needs to be
exercised in taking at face value
the information contained in this
record, and in the information
or factual predicates for any VA
decision related to this information.
The Department of Defense has
been very slow to admit where
Agent Orange was utilized. As part
of the PACT Act, there is a great
expansion of geography that is now
considered presumptive. Further,
the VA has not fully explored, nor
has the Department of Defense fully
explained, exactly what toxins and
hazardous material veterans have
been exposed to on military bases.
The history of the Agent Orange
Act, and a recent decision from
the Court of Appeals for Veterans
Claims in January 2023, reasonably
leads to a conclusion there are other
toxins the Department of Defense
has not admitted were utilized on
bases. Therefore, caution needs
to be exercised in investigation.
Multiple sources should be utilized
regarding exposure to toxins
and hazardous materials while
representing veterans and families.7
Persian Gulf War and Post-
9/11 Veterans
One of the ways to look at the PACT
Act is based upon geography. For
veterans who served on or after
August 2, 1990, and who served in,
around, or in the airspace above
Iran; Iraq; Kuwait; Oman; Qatar;
Saudi Arabia; Somalia; United
Arab Emirates (UAE); or, after
9/11, performed military service
in, above or around Afghanistan;
Djibouti; Egypt; Jordan; Lebanon;
Syria; Yemen; Pakistan; or any
country determined by the
Secretary of the VA, is potentially
entitled to VA service-connected
compensation under the Act.8
The presumptive conditions
covered currently include asthma,
diagnosed after service; brain
cancer; chronic bronchitis; chronic
obstructive pulmonary disease
(COPD); chronic rhinitis; chronic
sinusitis; constrictive bronchiolitis;
emphysema; gastrointestinal cancer
of any type; glioblastoma; head
cancer of any type; granulomatous
disease; interstitial lung disease;
kidney cancer; lymphatic cancer of
any type; lymphoma of any type;
melanoma; neck cancer; pancreatic
cancer; pleuritis; pulmonary
fibrosis; reproductive cancer of any
type; respiratory cancer of any type;
and sarcoidosis.9
These conditions, if a veteran
served in the geography listed,
and has a current diagnosis, are
presumptive conditions. Therefore,
no nexus opinion is required to find
that they are service-connected,
and thus, the veteran is entitled to
compensation.
In, Around, and in the
Airspace
The PACT Act also greatly expanded
geography in terms of in, around,
and the airspace above the listed
areas. The Blue Water Navy
veterans had to fight for decades
to be recognized as being exposed
to Agent Orange, based upon the
statute’s definition of the territorial
waters of Vietnam. The PACT Act
builds upon that experience, and
13
specifies that the Secretary is to
consider service in, around, and the
airspace above the listed areas as
inclusive of exposure to hazards on
active duty.
Veterans Exposed to
Herbicides (Agent Orange)
Vietnam-era veterans eligibility
expansion includes the new
presumptive conditions of high
blood pressure (hypertension),
and monoclonal myopathy
of undetermined significance
(blood cell disorder). The list of
geographical areas where one
must have served now includes
the Republic of Vietnam between
January 9, 1962 and May 7, 1975;
Thailand at any US or Royal Air
Force Base between January 9, 1962
and June 30, 1976; Laos between
December 1, 1965 and September 30,
1969; certain provinces in Cambodia
between April 16, 1969 to April 30,
1969; Guam or American Samoa,
or their territorial waters, between
January 9, 1962 and July 31, 1980;
and the Johnson Atoll or a ship that
called there between January 1, 1972
and September 30, 1977.10
The Act added Guam and American
Samoa, or their territorial waters;
Johnson Atoll; certain provinces in
Cambodia and Laos; and any U.S. or
Royal Thai Airbase. This represents
an expansion of the concessions
that the DOD had made earlier
relative to Agent Orange exposure.
The prior list only included the
Republic of Vietnam, and the waters
offshore (to include Blue Water
Navy veterans), the Korean DMZ,
and certain Thai Royal Air Force
Bases. In addition, the geography
includes domestic bases for the first
time: Lockbourne/Rickenbacker
Air Force Base, Ohio, between 1969
and 1986; Westover Air Force Base,
Mass., between 1972 and 1982; and
Pittsburgh International Airport
between 1972 and 1982.
Radiation Exposed Veterans
The Act also expanded entitlement
due to exposure to ionizing
radiation, adding the Enewetak
Atoll from January 1, 1977, through
December 31, 1980; cleanup of the
Air Force B-52 bomber carrying
nuclear weapons off the coast of
Palomares, Spain from January 17,
1966, through March 31, 1967; and the
response to a fire on board an Air
Force B-52 bomber carrying nuclear
weapons near Thule Air Force Base
in Greenland from January 21, 1968
to September 25, 1968.11
Toxic Exposure Risk Activity
(TERA) Expansion of Injury/
Event
The PACT Act, however, went
beyond just the presumptive
conditions, and indicated an
expansion of eligibility recognizing
Toxic Exposure Risk Activities in all
locations where a veteran may have
served.12 The Toxic Exposure Risk
Activity (TERA) is an assessment of
the veterans compensation claims.
The Toxic Exposure Risk Activity,
if provided, now requires the VA to
develop evidence in the claim for
a medical examination for TERA
claims. 38 U.S.C. § 1168(a) requires
the VA to obtain an examination or
opinion if a veteran submits to the
Secretary claims for compensation.
The VA hired approximately
10,000 new employees to process
the PACT Act claims. The Toxic
Exposure Risk Memorandum
and Exam is designed to screen
veterans who claim they engaged
in a Toxic Exposure Risk Activity,
and that their disabilities are as
a result of exposure to toxins. In
the past, the VA may have not
examined the veterans, because
there was insufficient evidence of a
connection between the exposure
to the toxins in service-connected
claims.
The presumptive conditions
and geography do not limit
the applicability of the Act. As
indicated above, the basic elements
of a service-connected claim
requires an injury or event in
service while on active duty, a
current diagnosis, and a nexus. The
PACT Act expanded the concept of
injury or event while in service to
include toxic exposures.
This is an important key to
understanding why Congress
appropriated over $280 billion
for the PACT Act, and its initial
implementation; and why the
VA calls it the biggest expansion
of eligibility in the history of the
VA. Potentially, this Act applies to
millions of servicemembers who
were exposed to toxic chemicals
and other agents while on active
duty at bases foreign and domestic,
or on-board ship.
There are exceptions contained
in 38 U.S.C. § 1168(b) to conditions
where the VA is not required to
provide examinations. They
include conditions based upon
physical trauma, mental disorders,
or conditions that have no positive
association with toxic exposure.
The inquiry does not end there.
The elements of basic direct
compensation still apply. The
difference is that a presumption no
longer exists; and thus, the veteran
should submit positive evidence
of a medical connection/nexus
between the in-service exposure,
and the claimed condition.
This direct service connection
14 THE ST. LOUIS BAR JOURNAL
Summer 2023
pathway was recently highlighted
in a case from the Court of
Appeals for Veterans Claims,
Gust v. McDonough, involving
Agent Orange on a domestic base.
While not precedential, this case
provides an outline for claimants
for direct service connection
compensation claims. In the Gust
case the veteran, who served at Ft.
McClennan, submitted evidence
of environmental studies that
had been reviewed by Congress.13
Those studies demonstrated Agent
Orange use, and documented toxic
chemicals at elevated levels on
the ground.14 The veteran provided
third-party lay evidence from
“buddies,” documenting being
in the dirt as part of training at
Ft. McClellan.15 The VA provided
no contradictory evidence. The
Court ruled favorably for the
veteran, and remanded the claim
for a calculation of benefits, as the
veteran had established exposure to
the herbicide agent.16
The PACT Act could be expanded
based on medical science and
developing research, such that
additional conditions could be
added by the Secretary.
Thus, the potential toxins a veteran
might have been exposed to include:
• Air pollutants: burn pits and oil
well fires during the Gulf War;
sulfur fire in Iraq; Atsugi, Japan
waste incinerator; sand, dust, and
very small particulate matter or
liquid droplets.
• Chemicals: herbicides (Agent
Orange) used during Vietnam
era; burn pits for waste disposal;
sulfur fire in Iraq; Camp Lejeune
water supplies; pesticides used
during Gulf War; depleted
uranium; industrial solvents.
• Occupational hazards: asbestos;
industrial solvents; lead;
radiation; vibration; noise; fuels;
polychlorinated biphenyls (PCBs);
special paint used on military
vehicles.
• Radiation: nuclear weapons and
testing; x-rays; depleted uranium.
• Warfare agents: chemical and
biological weapons; mustard gas;
nerve agents; project 112/Project
SHAD; herbicide tests and storage;
chemical experiments.
Thus, the PACT Act brings the VA,
and the DOD, somewhat into the
21st century with EPA oversight.
The PACT Act recognizes toxic
exposures did, and will continue
to occur, as a result of active-duty
military service, and that diseases
or illnesses related to those
exposures will be compensated as
a service-connected disability, if
supported by the presumptions or
medical science.
Survivors
Survivors of veterans also have
an option. Dependency and
Indemnity Compensation is a VA
benefit for widows and widowers.
Re-evaluation of claims, based on
a change in the law, is mandated.17
Thus, if a prior claim for DIC
benefits was denied, the VA is
supposed to evaluate if the change
in the law or presumption would
result in a different decision.
Generally, survivors must file claims
within one year of death. The VA
notes neither accrued benefits,18
nor the substitute statute,19 were
modified by the PACT Act.
Conclusion
The PACT Act represents the biggest
expansion of veterans benefits in VA
history. Short of the creation of the
Court of Appeals for Veteran’s Claims
in 1987, where attorneys were again
allowed to be involved in processing
veterans claims and to be paid a
reasonable fee, the PACT Act is the
biggest VA law in over 30 years. The
PACT Act expands on the concept of
presumption, herbicide exposure,
radiation exposure, exposure to burn
pits and particulate matter exposures,
and other industrial toxins, and
directs the VA to continue to search
for and develop claims.
1 38 C.F.R. § 3.303.
2 38 U.S.C. § 1119(b), 38 C.F.R. §
3.307(6)(iii).
3 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §
3.310.
4 38 U.S.C. §§ 1110, 1131.
5 38 U.S.C. § 5107.
6 38 U.S.C. § 1168.
7 Gust v. McDonough, No 21-1317
(Vet.App, January 26, 2023).
8 38 U.S.C. § 1119(c).
9 38 U.S.C. § 1120(b).
10 38 U.S.C. § 1116(d).
11 38 U.S.C. § 1112(c)(3)(A) and (B).
12 38 U.S.C. § 1168.
13 Gust, supra note 7, at 2-3.
14 Id. at 2-4.
15 Id. at 4-5.
16 Id. at 12-13.
17 38 U.S.C. § 1305.
18 38 U.S.C. § 5121.
19 38 U.S.C. § 5121A.
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16 THE ST. LOUIS BAR JOURNAL
Summer 2023
Special Considerations for
End of Life Planning For
Veterans
by Scotty L. Allen
n large part, estate planning
for veterans is the same as it is
for anyone else. Veterans come
with the normal issues estate
planners routinely see, but they
may also be eligible for benefits
that honor their service and
ease the loss for their surviving
family. However, veterans and
their families are often unaware
of these benefits, or fail to
think of them during their time
of grief. Many will reach out
to their family’s legal advisor
for assistance, so practitioners
should have some familiarity
with them and know where to
turn for assistance. This article
is not a complete examination of
the legal authorities establishing
veteran status1 or the eligibility
criteria for the many available
veteran benefits, but rather a
primer for the practitioner to
highlight some of the key issues
and resources available.
The first question to consider
is whether the client truly is
a “veteran.” Many assume
because they or their loved one
once wore a military uniform
that they must be a veteran, but
that is not true. For the sake of
brevity, an individual must have
served in the U.S. Army, Navy,
Marine Corps, Air Force, or Coast
Guard, or a reserve component
thereof, to be considered a
veteran. An individual may
also be considered a veteran if
they were on full-time duty as
a commissioned officer of the
Regular or Reserve Corps of the
Public Health Service, or on full-
time duty as a commissioned
officer of the National Oceanic
and Atmospheric Administration
or its predecessor organization,
the Coast and Geodetic Survey.
Service can be for any length
of time, but must be for more
than just training. This is the
requirement that excludes many
who served in the Reserves or
National Guard from veteran
status. These individuals go
through the same basic training
schools as do active-duty service
members, but they do not
thereafter serve on active duty
unless the President orders them
to that status.
Additionally, federal law
requires that the individual
must have been discharged
or released from the military
under other than a dishonorable
status to be considered a
veteran. A service member
will receive one of several
discharge characterizations
at the conclusion of service,
“Honorable” being the most
common and “Dishonorable”
being the lowest, or
least desirable, discharge
characterization. On that point,
only enlisted service members
can receive a dishonorable
discharge. The officer equivalent
of a dishonorable discharge
is a “Dismissal” and it, too,
disqualifies the individual for
veteran status.
So, short of a complete
examination of federal law
on military status, what can a
practitioner look for to establish
veteran status? First, look for
Net Federal Active Service. If the
time reflected on the individual’s
DD Form 214 (more on this
below) is less than basic training
(approximately eight weeks),
then the individual probably is
Scotty L. Allen is the general counsel for the Missouri Veterans
Commission in Jefferson City. Previously, he was the managing
attorney of the Military Legal Assistance Team of the Missouri
Attorney General's Ofce, and Deputy General Counsel of the
Missouri Department of Social Services. Scotty was born and
raised in Springeld, Missouri and served in the Army and the
Air Force, on active duty, the reserves and National Guard, for 26
and a half years. He is a graduate of Missouri State University and
Washington University School of Law.
17
not a veteran. However, if the
person can produce additional
documentation showing that
the net service time was for
other than training, or that they
suffered a disability during
training, then they probably are
a veteran. Second, if a member
of the National Guard or Reserve
unit was activated for service
but not called to federal active
duty, that person is not a veteran
unless they were disabled from
a disease or injury incurred or
aggravated in the line of duty.2 If
a call to active duty was issued,
but activation occurred by order
of a state governor as opposed to
the President, (i.e., responding to
riots, call for hurricane disaster
relief aid, etc.), that is considered
State active duty,3 and it does
not qualify the individual as a
veteran.
The Defense Department Form
214 (DD Form 214), also known
as a “Report of Separation,” is
typically the key document in
establishing veteran status. The
DD Form 214 is a form issued
to veterans identifying their
discharge characterization,
and the reason for separation
from service. The DD Form 214
is a one-page document that
encapsulates the veteran’s time
in service by denoting creditable
time served, time served in
armed combat, rank, military
occupation, military education,
decorations, reenlistment
eligibility, and other demographic
information. The DD Form 214 is
essential to verify eligibility for
veterans’ benefits and military
retirement. Similar, the National
Guard Bureau (NGB) Form 22
serves the same purpose for
National Guard service members.4
Therefore, the DD Form 214 is
vitally important to veterans and
their families, such that most
have multiple copies of it and
know exactly where they are
located. Indeed, many veterans
will record a copy of their DD
Form 214 with their local recorder
of deeds to ensure that a copy is
always available.5
Once you are relatively certain
your client is indeed a veteran,
you can explore what benefits
may be available to the veteran
and/or their family. Eligibility
criteria for each veterans’
benefit vary and should be
investigated individually. First, it
is noteworthy that under current
law an agent or attorney may not
charge fees for work performed
in connection with the filing of
a claim for VA benefits. An agent
or attorney must wait until the
VA makes its initial decision on
a claim for veterans’ benefits
before charging a fee for services
provided. This limitation does
not apply to fees charged for
services provided with respect
to proceedings before a court.6
Therefore, it is recommended that
you advise your client to contact
a local veterans service officer7
for assistance in determining
eligibility for veterans or survivor
benefits, and in applying for
them. Additional assistance may
also be available at your local
chapter of the American Legion,
Veterans of Foreign Wars (VFW),
or Disabled American Veterans
(DAV). Veterans service officers
are VA-accredited benefits
counselors for veterans and their
families, and they will complete
and submit claims applications
with all necessary documentation
on their behalf free of charge.
Before their office visit, advise
your client to call the veterans
service officer they intend to visit
to ask what specific documents
and information will be needed
for the meeting. Typically, this
will include the service member’s
name, rank, Social Security
number, contact information,
date of birth, date and cause of
death (if applicable), place of
death (home, hospital, etc., if
applicable), place of birth, dates
of military service and branch
of service, date of separation/
retirement from the military, and
VA disability and percentage,
if applicable. Additionally, the
spouse’s Social Security Number,
date and place of birth, and
the date and place of marriage
to the veteran along with the
name and contact information
of the funeral home handling
arrangements for the veteran,
if applicable, are also often
needed. In terms of documents,
the veterans service officer
will typically need the service
member’s death certificate, if
applicable, military ID cards,
marriage license and certificate,
DD Form 214 or NGB Form 22, and
the birth certificates of the service
member, his or her spouse,
and children. For assistance in
obtaining replacement military
records for the veteran, contact
the National Archives,8 or the
Missouri National Guard Veterans
Service Office9 for those who
served in the Missouri Army
or Air National Guard, or those
who served on active duty and
designated Missouri as their
home of record upon discharge
(1942-present).10
Once the veteran has died, advise
their family that there are several
notifications that must be made
18 THE ST. LOUIS BAR JOURNAL
Summer 2023
to prevent an overpayment
that the government may
subsequently seek to recoup
from the surviving next of kin.
To facilitate reporting, advise
your client to have available
the same information noted
above. First, the veteran’s death
must be reported to one of
Missouri’s Casualty Assistance
Offices at Fort Leonard Wood11 or
Whiteman Air Force Base.12 For
military retirees,13 the retiree’s
death must also be reported to
the Department of Finance and
Accounting Services (DFAS) to
stop retirement pay.14 You should
advise the veteran’s surviving
next of kin to also request the
veteran’s final retirement pay by
submitting a copy of the veteran’s
death certificate along with a
Standard Form (SF) 1174. Next,
advise the surviving spouse to
check the deductions column of
the military retiree’s pension pay
stub for a monthly deduction
entry denoted as “SBP” (Survivor
Benefit Plan). If there is such a
deduction, advise the surviving
spouse to request from DFAS the
necessary forms to activate SBP
payments. If the retiree did not
pay into the Survivor Benefits
Program, or the service member’s
death was not service-connected,
advise the surviving spouse to
apply for the Death Pension.
The Death Pension is based on
financial need, so advise your
client that receipt of it is not
guaranteed. Finally, if the retiree
also retired from Civil Service,
as many veterans do, advise the
surviving spouse to also call the
Office of Personnel Management
(OPM)15 to see if there are any
Survivor Benefits available. If
there are, OPM will mail the
forms to make a claim.
If the surviving spouse has a
current military identification
card, advise them to visit a
Defense Enrollment Eligibility
Reporting System (DEERS) office
to have the status of their military
ID card changed after the death
of the veteran.16 They will need
to bring their current military ID
card, another government issued
photo ID, marriage certificate,
death certificate, and the
veteran’s DD Form 214. Finally, if
the retiree veteran was enrolled
in TriCare Health Insurance,
advise the surviving spouse to
report the veteran’s death to
TriCare, update their status, and
set up premium payments.17 If
the veteran received medications
through Express Scripts, advise
the surviving spouse to contact
Express Scripts and cancel the
medication to avoid paying the
copay for unnecessary refills.18
If the service member’s death
was service-connected, advise
the surviving spouse, parent
or dependent(s) to contact a
veterans service officer and
apply for Dependent Indemnity
Compensation (DIC), a tax-free
monetary benefit the amount
of which varies with individual
circumstances. Lastly, the
veteran may have had Veterans
Group Life Insurance (VGLI)19
naming his or her surviving loved
ones as beneficiary.20
Regarding burial, eligible veterans
and their dependents are entitled
to free opening and closing
of the grave (or internment of
cremated remains), a concrete
grave liner, an upright marble
grave marker, full military
honors, and perpetual care of
the gravesite within a veterans
cemetery.21 The Missouri Veterans
Commission operates cemeteries
at Springfield, Higginsville,
Bloomfield, St. James,22 Fort
Leonard Wood, and Jacksonville.23
The VA also operates veterans’
cemeteries at Springfield,
Jefferson City,24 and St. Louis
(Jefferson Barracks). Spouses
and dependents are also eligible
for free burial with the veteran at
both state and federal facilities,
even if they predecease the
veteran. The name of the spouse/
dependent will be inscribed on
the Veteran’s headstone at no
cost. Many veterans elect to pre-
certify for burial in a veterans
cemetery and if so, they should
have received a letter stating that.
If the family is unable to locate
any such document, a veterans
service officer can assist the
family in confirming whether
their loved one pre-certified
for burial.
As previously noted, veterans are
also eligible for military funeral
honors at no cost, which consists
of the firing of three rifle volleys,
sounding of “Taps” and flag
folding and presentation. The
funeral director coordinating the
veteran’s funeral arrangements
can arrange for military honors
or the family can contact the
Office of the Adjutant General
directly.25 Military honors can
be provided at any cemetery,
public or private. If eligible,
veterans who choose to be buried
in a private cemetery receive a
free government headstone or
marker, a Presidential Memorial
Certificate, and a free burial flag.
Some veterans may be eligible for
partial reimbursement of burial
and funeral costs in a private
cemetery. No burial benefits are
available for spouses/dependents
interned in private cemeteries.
19
In conclusion, veterans and their
families have many resources
available to ease the loss of their
veteran, but many are unaware
of them. Veterans benefits are
earned by honorable service to
our nation and every veteran
should be made aware of them
before deciding to forego them.
Those assisting veterans and
their families with end of life
planning or dealing with the
loss of their veteran should
educate themselves on the
benefits available and know
where to turn for assistance.
Local veterans services officers
are a great resource to help
your clients in navigating the
often-confusing web of benefits,
programs and eligibility criteria,
and their services are free of
charge. Directing veterans and
their families to these invaluable
resources closes the loop in
providing your clients the
competent, all-encompassing
service they deserve.
1 See 38 U.S.C. § 101(2) and 13 C.F.R. §
125.11.
2 This is a legal/medical process
known as a “line of duty
determination” and there should be
record of it.
3 Often referred to as “state
emergency duty” (SED).
4 The DD Form 214 and the NGB
Form 22 are not interchangeable.
For most veterans’ benefits, you
cannot establish eligibility by
exclusively relying upon an NGB
Form 22.
5 Section 59.480.2, RSMo., requires
all recorders of deeds in the state to
record military discharge paperwork
free of charge.
6 See 38 U.S.C. § 5904(c)(1).
7 See https://mvc.dps.mo.gov/service/
serviceofficer.
8 https://www.archives.gov/veterans.
9 https://www.moguard.ngb.mil/
Resources/Veterans-Services/.
10 For records of those who served
prior to 1942, contact the State
Archives in the Missouri Secretary of
State’s Office, https://s1.sos.mo.gov/
Records/ArchivesDb/soldiers/.
11 Currently at (573) 596-7104.
12 Currently at (660) 687-6434.
13 Those service members with
retirement orders, typically after at
least 20 years of Honorable service.
14 Currently at (800) 321-1080.
15 Currently at (888) 767-6738.
16 Surviving spouses will need an
appointment to do so, and they can
make those arrangements by phone
or online.
17 TriCare divides the continental
United States into East and West
regions. Most of Missouri lies in
the West region (current phone
number is 844-866-9378), but the St.
Louis area and contiguous counties,
and the Bootheel region, are in the
East region (current phone number
866-773-0404). It is recommended
to notify Medicare of the veteran’s
death as well.
18 Currently at (877) 363-1303.
19 For those actively serving, this is
called Servicemember’s Group Life
Insurance (SGLI).
20 To inquire, contact the insurance
company at 1-800-419-1473 or osgli.
claims@prudential.com.
21 Not all veterans qualify for burial
benefits. Contact a Veterans Service
Officer for assistance in determining
eligibility.
22 Not currently accepting
internments.
23 See https://mvc.dps.mo.gov/
cemeteries/ for contact information.
24 Not currently accepting
internments.
25 2302 Militia Drive, Jefferson City,
MO 65101-1203, or (888) 526-6664.
Upcoming Issues 2023-2024:
Summer - Military & Veterans
Fall - Criminal Law
Winter - Intellectual Property
If you have ideas for articles and/or would like
to write for any of these issues, please contact
David Truman at barjournal@bamsl.org. If you
or your firm would like to advertise in these
issues, please contact Jadii Castillo at
jcastillo@bamsl.org.
20 THE ST. LOUIS BAR JOURNAL
Summer 2023
The Veteran's Journey
by Shaun Broeker
Shaun Broeker is a partner at Thompson Coburn in the rm’s
Business Litigation and Banking and Financial Services practice
groups. He has a diverse litigation practice, in which he represents
businesses facing fraud, breach of contract, and shareholder dispute
claims. He received his bachelor’s degree and J.D. from Washington
University. During his senior year at Washington University, he
enlisted in the U.S. Army. Although he was supposed to begin studies
at Washington U. School of Law in 2009, this was delayed due to
his deployment with the 90th Sustainment Brigade to Balad, Iraq in
support of Operation Iraqi Freedom. While deployed, Shaun served
as an Intelligence Analyst for brigade-level operations in the Iraqi
Theater. In support of his fellow veterans, he serves on the board of
directors for two national veteran-employment non-prots, VetJobs
and Military Spouse Jobs, and also serves as the Co-Chair of BAMSL’s
Veterans Committee.
very soldier is familiar with the
Siren’s Song: A used car dealership
just off base that sells fast cars,
with financing available at a
high interest rate. It’s an alluring
purchase for a newly enlisted
teenager, far from home, in a high-
testosterone environment. Military
service members, currently serving
or separated, are a target for those
who wish to take advantage of their
steady stream of income, benefits,
or other compensation. This article
will discuss the unique challenges
veterans face in society, some of
which end with veterans entering
the criminal justice system, and
how we as a legal community can
help fix it.
The Veteran’s Sacrifice Must
Continue
In 2021, AARP released a report
titled “Scambush: Military Veterans
Battle Surprise Attacks from Scams
and Fraud.” In this report, AARP
found that “veterans, military,
and their families continue to
be significantly targeted more
by con-artists”; “nearly a third
reported that they lost money
supporting fake veteran or military
charities or causes, or updating
their military records”; and nearly
half erroneously signed over
their U.S. Department of Veterans
Affairs (VA) pension or disability
benefits.”1 In response, AARP and
the U.S. Postal Inspection Service
launched a joint program, dubbed
Operation Protect Veterans, to raise
public awareness to “help veterans
and military families fight back
and protect themselves and their
loved ones by raising visibility to
the most current scams, frauds,
and identity theft schemes.”2
Learning to sidestep these attacks
is no easy feat for veterans,
particularly when the challenges
come from the well-entrenched.
In April 2023, the Washington Post
published an editorial, “Veterans
Deserve Support. But One Benefit
Program Deserves Scrutiny.”3 The
Post ’s Editorial Board argued that
because disability payments go to
a veteran tax-free for that veteran’s
life, and are paid regardless of
employments status, lawmakers
“should consider means-testing
disability benefits for veterans who
are high earners.”4
I, myself, am an Army veteran.
I do have a disability rating
and receive monthly disability
payments. In the view of some, if
a veteran suffers an injury serving
this nation, but is fortunate
enough to have found fruitful
employment, “We the People,”
should unilaterally void our debt
owed to that veteran. One of the
most influential newspapers in
the world, located just a few blocks
away from the U.S. Department of
Veteran’s Affairs, advocated that
it is the “moral responsibility”
of Americans to limit a veteran’s
disability benefits to ensure that
America’s “financial house” is “safe
and sound.”5
Viewing veterans as a pot of
government-backed gold is
nothing new. We are privy to
guaranteed income, whether a
paycheck, disability benefits, or
other compensation. This is not
to suggest that we veterans do not
have a duty to protect ourselves.
As a group, veterans are trusting
and tend not to complain; we
have a habit of outsourcing our
21
grievances to non-veterans to
complain on our behalf, of which I,
of course, am deeply appreciative.
We must stay vigilant to avoid the
“friendly” fire.
Attorneys Are Also Guilty
of Taking Advantage of
Veterans
By now, most people have
come across the Camp Lejeune
legal advertisements seeking
plaintiffs who were exposed to
toxic chemicals while living or
working at the Marine Corps base
in North Carolina. This water
contamination lawsuit is the result
of toxic industrial solvents being
found in the base's water system,
exposure which has been linked
to a range of health problems,
including cancer and birth defects.6
What many don’t know, however,
is that in February 2023, two
bills were introduced in the U.S.
Congress, both which seek to limit
the attorneys’ fees that can be
collected from veterans who receive
compensation in the Camp Lejeune
lawsuit.7 U.S. Senators Kevin Cramer
(R-N.D.) and Dan Sullivan (R-Ark.)
introduced the Protect Camp
Lejeune Victims Ensnared by Trial-
lawyers’ Scams Act in the Senate,8
while U.S. Congressmen Jerry
Nadler (D-N.Y.) and Mark Takano
(D-Calif.) introduced the Protect
Access to Justice for Veterans Act in
the House.9
“Our Camp Lejeune veterans
deserve, at the very least,
affordable legal representation, free
of exploitation from trial attorneys
looking to pad their own pockets
with earnings reserved for victims
and their families,” said Senator
Cramer.10 Congressman Takano
stated that attorneys are “targeting
veterans and charging exorbitant
fees,” and the Protect Access to
Justice for Veterans Act “strikes
a balance that allows veterans to
utilize outside help to seek justice,
while preventing nefarious actors
from unjustly diverting resources
away from our veterans.”11
Armed with this information,
it becomes difficult to see who
veterans can rely upon to protect
our interests, be it financial,
legal, or otherwise. This becomes
a particular problem because
attorneys are indispensable in
protecting the safety and welfare of
our veterans.
Many Roads Lead Veterans
Into The Legal System
The physical, mental, and
emotional toll from serving in a
war zone cannot be overstated.
Everyone has probably seen
someone with the physical
wounds. Maybe it is a scar caused
by a 7.62 mm round from an
AK-47 fired by a Taliban fighter,
or a missing limb caused by a
roadside bomb on Highway 1
outside of Baghdad. The invisible
wounds, such as traumatic brain
injuries, are harder to spot, but
make no mistake, the impact on
the veteran’s life is just as severe.
In 2020 alone, 6,146 veterans
committed suicide in the United
States, which, after adjusting for
age and sex, is almost 60% higher
than the U.S. population generally.12
No doubt these invisible wounds,
such as post-traumatic stress
disorder (PTSD), are a major culprit
behind these unfortunate statistics.
For many veterans, especially
those who have experienced
combat, PTSD is a common
condition that can cause a
downward spiral in the veteran’s
life. For example, among veterans
who enter the VA system, many
suffer from a substance use
disorder (SUD).13 The stats are
alarming. For those veterans who
have an SUD, 80% (or 900,000
veterans) abuse alcohol; 25% (or
300,000 veterans) abuse illegal
drugs; and 7% (or 80,000 veterans)
abuse both alcohol and illegal
drugs.14 Although the substance
is the coping mechanism for a
larger mental health issue, an SUD
(to which attorneys also often
fall victim) can lead to a range of
problems for veterans, including
job loss and getting caught in the
criminal justice systems.
For a veteran, steady employment
is key to staying out of legal
trouble. I currently serve on the
board of directors for two national
veteran-employment non-profits,
VetJobs and Military Spouse Jobs,
which have helped nearly 90,000
veterans and their spouses find
employment since 2010.15 What
I have come to learn through
this role is that while a loss of
employment can be devastating
for anyone, veterans take it
particularly hard. Many enlist to
serve a higher cause, and for many,
that higher cause is their job. If
that disappears, the veteran may
feel that they have no purpose.
Unsurprisingly, a loss of
employment will also result
in financial difficulties for the
veteran, including falling behind
on child support. Failing to pay
child support can have serious
consequences, including wage
garnishment, loss of driver's
license, and even imprisonment.
Moreover, a common symptom of
PTSD is irritability and aggression,
which can lead to conflicts with
others, potentially resulting in
22 THE ST. LOUIS BAR JOURNAL
Summer 2023
criminal charges. Veterans are
more likely to engage in risky
behavior, such as reckless driving,
which can result in additional
legal problems. In a sense, many
roads lead veterans directly to the
criminal justice system.
From the most recent data, there
are 181,000 veterans currently
incarcerated in the United States.16
These numbers are certainly
undercounted because there is
no requirement to track the total
number of incarcerated veterans.
(Sometimes it’s easier not to
know these things.) Veterans with
PTSD are 60% more likely to be
incarcerated than those without,
and almost one-third of America’s
war veterans have been arrested,
almost double the rate among
civilians.17 These statistics are not
inconsequential, but they are also
not without solution.
The Importance of Attorneys
in Assisting Veterans
Legal professionals play a pivotal
role in supporting veterans.
Attorneys can work with veterans
to address child support issues
and other financial challenges,
such as landlord-tenant disputes,
bankruptcy, or debt management.
Additionally, attorneys can provide
representation in criminal cases,
advocating for alternatives to
incarceration, such as mental
health treatment or community
service. Although far from
enough, there are some programs
available to help, such as Legal
Services for Veterans, a VA program
awarding grants to support legal
clinics to serve homeless and
low-income veterans.18 This
program also prioritizes grants
to rural communities and Native
Americans, and at least 10%
of grant funds must be used to
provide legal service to women
veterans.19
Outside of our legal practice, as
employers, we must also serve
as a line of defense by offering
accommodations to veterans,
such as flexible schedules or
reduced workloads. And, there
are financial incentives for hiring
veterans in the first place. The
Work Opportunity Tax Credit is a
federal program that encourages
employers to hire veterans by
offering tax credits up to $9,600 for
each eligible veteran hired.20
Whether Sympathy or
Empathy, More Is Needed
There is no dispute that it would
be preferable for a veteran to avoid
the legal system. But war’s toll
makes this a challenge. If that’s
the case, how can we as a legal
community protect veterans on
their journey?
One of the most significant
challenges that veterans face is
the stigma associated with mental
health conditions. As any litigator
can attest, legal proceedings can
be stressful and overwhelming for
an attorney, let alone an outsider
with mental health issues. Many
people, including judges, lawyers,
and jurors, view individuals
with mental health conditions as
unreliable.
A lack of understanding of mental
health conditions, including
from attorneys themselves, may
exacerbate this problem. This
can lead to misinterpretation
of a veteran's behavior or
testimony. A veteran with PTSD
may exhibit avoidance behaviors,
such as avoiding eye contact or
not wanting to discuss certain
topics. A veteran with PTSD may
have difficulty recalling specific
details or events. All of these
may wrongly be misinterpreted
as dishonest, uncooperative, or
unreliable.
There are several steps that can be
taken to address these challenges.
One approach is to increase
awareness and education about
mental health issues that veterans
face. This may include training
programs for judges, lawyers,
and other legal professionals on
the symptoms of PTSD and how
to effectively communicate with
individuals with such a condition.
Another approach is to provide
accommodations and support.
Veterans with PTSD may benefit
from having a support person or
advocate present with them during
legal proceedings. Additionally,
accommodations such as breaks
during testimony or alternative
methods of communication, such
as written statements, may be
helpful for veterans who have
difficulty speaking or recalling
details.
BAMSL Creates Veterans
Committee to Help Address
These Problems
Mental health issues, legal
troubles, and the possibility of
being financially exploited by
strangers undoubtedly increases
veterans’ odds of becoming
homeless. On any given night,
there are over 33,000 homeless
veterans in this country.21
Thankfully, there are non-profit
organizations in St. Louis, such as
the Veterans Community Project,
who have planned tiny home
communities, with the goal of
23
getting homeless veterans off
the street and transitioned into
permanent housing.22
Veteran support is not limited to
those outside the legal community.
In the fall of 2022, BAMSL formed
the Veterans Committee to educate
our fellow attorneys on issues
that veterans face within the
legal system and to connect those
interested in helping veterans
generally. To further its mission,
the Veterans Committee invites
guest speakers to its monthly
meetings to address a wide range
of veteran-related topics. Guest
speakers have included, among
others, U.S. District Court Judge
Matthew Schelp, a former Navy
JAG officer; Col. Paul Kirchoff
(Ret.), Executive Director of the
Missouri Veterans Commission;
and Jim Craig, Department Chair
of Sociology at the University of
Missouri - St. Louis and founder of
UMSL’s Veterans Studies Program.
A common staple at the monthly
Veterans Committee meetings is
The Kaufman Fund, a local 501(c)
(3) organization that supports
veterans by helping them find
access to mental health providers,
dentists, and attorneys.23 The
Kaufman Fund receives over 100
requests every month from local
veterans who need legal assistance
but do not have the money to
pay for an attorney. Out of those
100 monthly requests, 38% seek
legal help relating to a family law
issue, such as divorce, paternity,
and custody; 20% seek assistance
involving estate planning; and 15%
seek an attorney to assist with a
criminal issue. Thankfully, The
Kaufman Fund has a network of
approximately 80 attorneys in
the St. Louis region, dedicated to
providing legal assistance on a pro
bono basis, to whom they refer
veterans.
We in the legal community
must unite to support our
veterans in their journey, offering
understanding, empathy, and legal
assistance. BAMSLs Veteran’s
Committee is a good start, but
more is needed. By addressing
mental health challenges,
providing accommodations, and
expanding pro bono services, we
will positively impact the lives of
those who have made tremendous
sacrifices for our nation.
1 AARP, Scambush: Military Veterans
Battle Surprise Attacks from Scams
& Fraud, https://www.aarp.org/
content/dam/aarp/research/
surveys_statistics/econ/2021/fraud-
scams-military-veterans-report.
doi.10.26419-2Fres.00502.001.pdf.
coredownload.pdf (2021.)
2 Id. at 8.
3 Veterans Deserve Support. But One
Benefit Program Deserves Scrutiny,
tHe wasHington post, April 3, 2023.
4 Id.
5 Id.
6 Mike Magner, Camp Lejeune
Health Claims are Mired Despite Law
Allowing Suits, roll Call (March 23,
2023).
7 Id.
8 Sen. Cramer, Colleagues Introduce
Bill to Protect Camp Lejeune Vets
from Corrupt Trial Attorneys,
https://www.cramer.senate.gov/
news/press-releases/sen-cramer-
colleagues-introduce-bill-to-
protect-camp-lejeune-vets-from-
corrupt-trial-attorneys (February 17,
2023).
9 Nadler and Takano introduce
the Protect Access to Justice for
Veterans Act, https://nadler.
house.gov/news/documentsingle.
aspx?DocumentID=394953 (February
28, 2023).
10 Cramer, supra note 8.
11 Nadler, supra note 9.
12 u.s. dept. of veterans aff., ofC. of
mental HealtH & suiCide prevention,
National Veteran Suicide Prevention
Annual Report (September 2022).
13 nat’l inst. of HealtH, nat’l inst. on
drug abuse, Substance Abuse and
Military Life DrugFacts (October
2019).
14 u.s. dept. of HealtH & Human serv.,
substanCe abuse & mental HealtH serv.
admin., 2018 National Survey on Drug
Use and Health: Veterans (2018).
15 VetJobs, vetjobs.org; Military
Spouse Jobs, militaryspousejobs.org.
16 CounCil on Criminal JustiCe, veterans
JustiCe Commission, From Service
Through Reentry: A Preliminary
Assessment of Veterans in the
Criminal Justice System (August
2022).
17 Id. at 8.
18 u.s. dept. of veterans aff., va
Homeless programs, Legal Services
for Veterans Programs, https://www.
va.gov/HOMELESS/lsv.asp.
19 Id.
20 u.s. dept of treasury, internal
revenue serv., Work Opportunity
Tax Credit, https://www.irs.gov/
businesses/small-businesses-self-
employed/work-opportunity-tax-
credit.
21 u.s. dept. of Housing & urb.
development, New Data Shows 11%
Decline in Veteran Homelessness
Since 2020—the Biggest Drop in
More Than 5 Years, https://www.
hud.gov/press/press_releases_
media_advisories/HUD_No_22_225,
(November 3, 2022).
22 The Veterans Community Project,
veteranscommunityproject.org/vcp-
stlouis.
23 The Kaufman Fund,
thekaufmanfund.org.
24 THE ST. LOUIS BAR JOURNAL
Summer 2023
Federal Law Enforcement Battles
Organized Crime, 1980-1990
Precedent: The Legal
History of St. Louis
The U.S. Attorney’s Ofce for the
Eastern District of Missouri, headed
by Thomas E. Dittmeier from 1980
through 1990, completed a number
of investigations and prosecutions
of St. Louis organized crime gures
during the 1980s. These cases were
front page news in St. Louis. The
characters and plot twists of these
cases are far too numerous for
the purposes of this article, which
examines the legal battles that
effectively dismantled traditional
organized crime in our region.
U.S. v James Anthony Michaels III,
726 F.2d 1307 (8th Cir. 1984)
On August 11, 1981, a car explosion
seriously injured Paul Leisure outside
of his home on Nottingham Avenue
in south St. Louis.1 The government’s
case suggested the Leisure bombing
was retaliation for the September
1980 bombing, on Interstate 55 in
south St. Louis County, of defendant
James Michaels’ grandfather, James
Michaels Sr.2 At trial, U.S. District
Judge John Nangle allowed evidence
of the prior bombing and held that
defendant’s remark, near the time
of his grandfathers’ killing, that
“somebody was going to have to pay
for this” was relevant to defendant’s
motive and tended to establish the
existence of a conspiracy.3
The U.S. Court of Appeals for the
Eighth Circuit rejected defendant’s
claim that the evidence of
defendant’s grandfather’s death
by means of a car bombing was
irrelevant and/or too prejudicial to be
admitted, as well as his other points
on appeal.4
The opinion demonstrates the
painstaking investigation conducted
by the FBI and ATF. Cars titled in
ctitious names were observed
casing the victim’s residence on the
morning of the bombing, and in
front of the apartment rented for
the defendant under an assumed
name, in the months leading up to
the bombing.5 After the bombing, a
search of the communal trash bin
in defendant’s apartment yielded
a spoon with explosive residue,
packing for a remote-control device,
surgical gloves and other materials
consistent with the assembly of an
explosive device like the one that
injured Leisure.6 The Court noted the
evidence of the cars was relevant,
circumstantial evidence supporting
the conviction.7
In addition to Dittmeier, Assistant
U.S. Attorney Frederick Buckles
handled the case for the government.
Buckles went on to serve for many
years as a U.S. Magistrate Judge in the
Eastern District of Missouri. The case
was tried in Little Rock, Arkansas due
to pretrial publicity.
U.S. v. Townsley et al., 843 F.2d 1070
(8th Cir. 1988)
This case arose out of a political
campaign to control a seat in the
Missouri House of Representatives.8
Defendant Sorkis Webbe Jr. led a
political organization called the
7th Ward Regular Democratic
Organization (the “Organization”) in
south St. Louis that was active in the
primary for the 78th Missouri House
district.9 A prior rival of Webbe Jr.
for control of the Organization was
James Michaels Sr., the grandfather
of James Michaels III who was
convicted earlier in the Leisure
bombing.10
In 1978, the candidate backed by
the Organization, John Leisure,
was disqualied and his name was
removed from the ballot due to
non-residence in the 78th district.11
The Organization substituted another
by Hon. Thomas C. Albus
Police investigate the scene of the bombing that killed James Michaels Sr. on September 17, 1980.
(photo: Kathy Kuper, St. Louis Post-Dispatch)
25
candidate but that candidate lost to
Ed Bushmeyer by 199 votes.12 More
than 250 absentee votes had been
cast for Leisure before his name
was taken off the ballot. As a result,
the Organization focused its efforts
to unseat Bushmeyer on absentee
ballots.13
The vote fraud scheme presented
at trial involved the collection of
absentee ballots by notary publics
working for the Organization.14 The
notarized ballots were returned to
the Organization’s ofces, opened
and checked. Those voting for
the Organization’s candidate were
submitted. Those voting for the
incumbent Bushmeyer were “double
punched” which had the effect of
spoiling the ballot, thereby nullifying
a vote for Bushmeyer.15
As the campaign played out,
Bushmeyer supporter James
Shrewbury was assaulted by
members of the Organization.16
Shrewsbury went on to serve on
the St. Louis Board of Alderman for
many years and was elected citywide
to be President of the Board at the
end of his political career.
The Eighth Circuit afrmed the
Defendants’ convictions for
conspiracy to destroy absentee
ballots. Even though the focus of the
conspiracy was a state election, the
federal prosecution of the conspiracy
was held to maintain jurisdiction
because federal ofces were being
contested on the same ballots.17
However, the U.S. Supreme Court
decisions in McNally v. United States,18
which limited “honest services”
fraud prosecutions and in Batson
v. Kentucky,19 which governs race-
based peremptory strikes, intervened
between the trial and the appeal. The
result of McNally was to vacate the
“honest services fraud” conspiracy
count and remand for resentencing.20
The result of Batson was a remand for
a hearing on the government’s use of
its strikes.21
The prosecution in Townsley was
handled by James M. Crowe, Jr. who
served the Justice Department for
more than 45 years before retiring in
2020. Crowe served as the Criminal
Chief of the U.S. Attorney’s Ofce
for the last 20 years of his career.
Assisting Crowe was James G. Martin,
who went on to serve in the ofce for
20 years, nally as the U.S. Attorney.
Also serving on the trial team was
Assistant U.S. Attorney James Steitz.
Noted St. Louis defense attorneys
Burton Shostak and Irl Baris
represented Defendants Gandy and
Townsley, respectively.
U.S. v. Flynn, 852 F.2d 1045 (8th
Cir. 1988)
Although handed down years after
the Michaels case discussed above,
Flynn addresses organized crime
bombings that the government
alleged had led up to the 1981
Leisure bombing that was the
subject of Michaels. Flynn afrmed
the conviction of St. Louis Union
ofcial Raymond Flynn for his role in
planning the bombings of union
rivals John Paul Spica, James
Michaels Sr. and George “Sonny”
Faheen.22
Paul Leisure and his brother Anthony
informed defendant of Spica’s plan
to kill defendant in an effort to form
a Leisure-Flynn alliance in the St.
Louis labor organizing community.23
Paul Leisure and defendant met
and planned to bomb Spica’s
automobile during the fall of 1979.24
They observed Spica’s routine. They
obtained an automobile like Spica’s to
practice the proper wiring of a bomb
and made several failed attempts
to attach a bomb to Spica’s car.25 On
November 8, 1979, the conspirators
succeeded and killed Spica by means
of a bomb attached to his automobile
which exploded as he sat in it.26
At the same time, the Leisures were
struggling to wrest control of another
union local from James Michaels Sr.
and his associates.27 The Leisures
planned to kill James Michaels
Sr. by means of a car bomb.28 In
addition to eliminating Michaels Sr.
from local union politics, his killing
would vindicate yet another grudge
between the two families relating
Paul Leisure (center, in dark suit), injured from a car bombing in 1981, leaves the federal
courthouse in St. Louis, having been convicted of racketeering in 1985.
(photo: Jerry Maunheim Jr., St. Louis Post-Dispatch)
26 THE ST. LOUIS BAR JOURNAL
Summer 2023
to the murder of Richard Leisure in
the 1960s.29 Through surveillance,
technical planning and a successful
planting operation, the Leisures
afxed a bomb to Michaels Sr.’s car
and killed him by detonating the
bomb as Michaels Sr. drove home
from lunch on Interstate 55 near
the St. Louis city-county border on
September 17, 1980.30
After James Michaels III avenged the
death of his father by bombing Paul
Leisure’s automobile in 1981, a plan
was hatched to kill Michaels associate
George “Sonny” Faheen, whom they
believed participated in the Leisure
bombing.31 Again, the conspirators
tracked their targets’ habits, obtained
dynamite and practiced attaching
the bomb to a similar vehicle.32 On
October 16, 1981, Faheen burned to
death in the Mansion House parking
garage in downtown St. Louis after a
bomb exploded when he started his
automobile.33
Flynn was able to secure a reversal
of his conviction for interstate
transportation of dynamite from
a divided panel for lack of reliable
evidence that the dynamite had in
fact crossed a state line.34 However
the primary RICO counts, nding
that Flynn participated in the scheme
to carry out the bombings with the
Leisures and others, were afrmed.
Buckles again represented the
government at trial.
U.S. v. Leisure et al., 844 F.2d
1347 (8th Cir. 1988)
In this opinion, the author, Judge
Theodore McMillian, noted its facts
“are vaguely reminiscent of a Mario
Puzo novel.”35 After recounting many
of the events discussed above, Leisure
picks up in the aftermath of the 1981
Faheen bombing at the Mansion
House. “Immediately following
the Faheen bombing, the Leisures’
fortunes began to fall” as state and
federal investigators bore in on
them.36 In March 1982, a member of
the crew was arrested and agreed to
testify against co-conspirator Michael
Kornhart. Fearing Kornhart himself
would “ip,” Paul Leisure promised
two hitmen union positions in
exchange for killing Kornhart.37
Kornhart’s body was discovered
on July 31, 1982. As promised, the
hitmen were enrolled in a union local
afliated with the Leisure family near
the time of Kornhart’s killing.38
As cooperating witnesses came
forward during 1982, the Leisures
unsuccessfully tried to intimidate
them in hopes of derailing
the parallel state and Federal
investigations proceeding against
them.39 The Eighth Circuit afrmed
the RICO convictions against Paul
Leisure (the victim in Michaels
above), David Leisure and
Anthony Leisure.40
Dittmeier, Buckles, Crowe Jr.
and Steitz again represented
the government in the Leisure
prosecution. In addition to Irl Baris,
noted St. Louis criminal defense
attorney Richard Sindel represented
Anthony Leisure.
The Aftermath
The primary sentences against the
Leisures ultimately proved to be
their state court sentences for the
killing of James Michaels Sr. David
Leisure was executed by the State of
Missouri in 1999. Anthony Leisure
remains in the Missouri Department
of Corrections without the possibility
of parole at age 76. Paul Leisure died
in the U.S. Bureau of Prisons medical
facility in Springeld, Missouri,
having been transferred there in 1993
after serving time in the Missouri
Department of Corrections.
Conclusion
The U.S. Attorney’s Ofce, in
cooperation with federal, state
and local law enforcement and
prosecutors mounted a years-
long campaign to end the cycle of
revenge playing out across the City
of St. Louis and the region. No
prosecutions as dramatic or far-
reaching have been seen in
St. Louis since.
Thomas C. Albus is a Circuit Judge in
St. Louis County.
1 U.S. v. Michaels, 726 F.2d 1307, 1312
(8th Cir. 1984).
2 Id. at 1314.
3 Id. at 1314-15.
4 Id. at 1309.
5 Id. at 1311.
6 Id at 1311-12.
7 Id.
8 U.S. v. Townsley et al., 843 F.2d 1070,
1073 (8th Cir. 1988).
9 Id.
10 Id. at 1077.
11 Id. at 1073.
12 Id.
13 Id. at 1073-74.
14 Id.
15 Id. at 1074-75.
16 Id. at 1075.
17 Id. at 1080.
18 483 U.S. 350 (1987).
19 476 U.S. 79 (1986).
20 Townsley, supra note 8, at 1081.
21 Id. at 1086.
22 U.S. v. Flynn, 852 F.2d 1045, 1057 (8th
Cir. 1988).
23 Id. at 1047.
24 Id.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id. at 1047-48.
30 Id. at 1048. Recall this is the
bombing James Michaels III was
accused of trying to avenge by
bombing Paul Leisure the following
year.
31 Id. at 1049.
32 Id.
33 Id.
34 Id. at 1057.
35 U.S. v. Leisure et al., 844 F.2d
1347, 1351; see also mario puzo, tHe
godfatHer (1969).
36 Leisure, supra note 35, at 1353.
37 Id.
38 Id.
39 Id.
40 Id. at 1368.
27
The Brief Case
by Charles A. Weiss
EIGHTH CIRCUIT ALLOWS
COMPLAINT BASED UPON
INFORMATION AND BELIEF
TO PROCEED.
Ahern Rentals, Inc. v. EquipmentShare.
com, Inc. and EZ Equipment Zone,
LLC, 59 F.4th 948 (8th Cir. 2023).
In this case, in which a plaintiff
alleged that one of its competitors
misappropriated its trade secrets
to gain an unfair advantage in the
construction equipment rental
industry, the U.S. Court of Appeals
for the Eighth Circuit reversed an
order from the U.S. District Court
for the Western District of Missouri,
which had dismissed the plaintiff’s
complaint against the defendant
for the reason that the complaint
alleged the defendant’s involvement
and knowledge “upon information
and belief.” Because critical facts
were alleged upon information
and belief, the district court had
concluded that the complaint failed
to state a plausible claim against
the defendant and granted the
defendant’s motion to dismiss.
Ahern Rentals alleged that two
competitors – EquipmentShare.
com, Inc. and EZ Equipment Zone,
LLC – misappropriated its trade
secrets. Ahern is one of the largest
independently owned equipment
rental companies in the United
States and requires employees
to sign non-disclosure, non-
solicitation, and non-competition
agreements.
EquipmentShare is a relative
newcomer in the equipment rental
industry. Like its competitor Ahern,
EquipmentShare has dozens of
locations around the country, and
has hired many former Ahern
employees.
In 2019, Ahern sued
EquipmentShare and several of
its former employees in both
federal and state courts. Several
of the federal lawsuits have
been consolidated in an MDL
proceeding in the Western
District of Missouri. Ahern
alleged that in early to mid-
2017, EquipmentShare began
recruiting Ahern’s employees
to steal Ahern’s trade secrets
before leaving Ahern to work for
EquipmentShare.
In November 2020, Ahern
brought this specic lawsuit
against EquipmentShare
and included EZ as a
named defendant. Like
EquipmentShare, EZ is a
newcomer in the equipment
rental industry, but its business
model is somewhat different. In its
November 2020 complaint, the only
one involving EZ, Ahern alleged
that after its original lawsuits were
led, EquipmentShare conspired
with EZ to continue its scheme of
using Ahern’s trade secrets to gain a
competitive advantage.
Ahern alleged, based upon
information and belief, that EZ was
using the “customer list, rental
information, pricing information,
and marketing strategies” that
EquipmentShare illegally obtained
from Ahern to monitor, service,
and place its users’ equipment.
It further alleged that EZ has
“knowledge” that this information
“was illegally obtained by
EquipmentShare from Ahern.”
Ahern’s 2020 complaint was
initially led in the Eastern District
of Missouri but was transferred to
the Western District of Missouri.
The district court found that Ahern’s
complaint against EZ did not allege
facts plausibly demonstrating EZ’s
involvement in EquipmentShare’s
alleged misappropriation of trade
secrets, much less that there was
a meeting of the minds sufcient
for a conspiracy to exist. After
the trial court dismissed EZ from
the lawsuit, EquipmentShare
also led a motion for judgment
on the pleadings, arguing that
Ahern’s claims were duplicative of
the other actions in the MDL and
should be dismissed for improper
claim-splitting. The district court
dismissed all remaining claims
against EquipmentShare. Ahern
appealed to the Eighth Circuit.
The Eighth Circuit pointed out
that Ahern alleged based on
“information and belief” that
EquipmentShare has contracted
with EZ to use Ahern’s condential,
proprietary, and/or trade secret
information to continue the illegal
attack upon Ahern’s business.
Similarly, Ahern alleged “upon
information and belief” that
EquipmentShare “sought out and
conspired with EZ to use Ahern’s
condential, proprietary, and/or
trade secret information to continue
the illegal attack upon Ahern.”
The district court concluded
that allegations pleaded only on
information and belief do not
“’nudge the claim[s] across the line
from conceivable to plausible’ as
28 THE ST. LOUIS BAR JOURNAL
Summer 2023
required by Iqbal [Ashcroft v. Iqbal,
556 U.S. 662 (2009)] and Twombly
[Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)].”
The Eighth Circuit noted that
pleading on information and belief
is expressly contemplated by the
Federal Rules of Civil Procedure.
Fed. R. Civ P. 11(b)(3) states
[A]n attorney or unrepresented
party certies that to the best
of the person’s knowledge,
information and belief, formed
after an inquiry reasonable
under the circumstances: . . .
the factual contentions have
evidentiary support or, if
specically so identied, will
likely have evidentiary support
after a reasonable opportunity
for further investigation or
discovery ….
The Court also pointed out that
it has never fully articulated
when plaintiffs may use “upon-
information-and-belief” pleadings
in a complaint to satisfy Twombly’s
plausibility requirement. The
Court explained, “we cannot
always expect plaintiffs to provide
robust evidentiary support for their
allegations at the pleading stage
because, in some contexts, that
information may not be available
to them before discovery.” The
Court further explained that “our
sister circuits have largely agreed
that factual allegations pled on
information and belief should
not be summarily rejected under
Twombly where ‘the facts are
peculiarly within the possession
and control of the defendant,
or where the belief is based on
factual information that makes the
inference of culpability plausible.’”
The Court then held, “we adopt
this prevailing standard today
and hold that allegations pled on
information and belief are not
categorically insufcient to state
a claim for relief where the proof
supporting the allegation is within
the sole possession and control
of the defendant or where the
belief is based on sufcient factual
material that makes the inference
of culpability plausible.”
In the context of this case, the
Court held that the allegations were
sufcient to state a claim for relief
and sufcient to preclude dismissal.
MISSOURI SUPREME COURT
REFUSES TO ALLOW A DEED
FROM A HUSBAND AND WIFE
GRANTING INTEREST IN A PARCEL
OF PROPERTY TO THEIR CHILDREN
TO BE REFORMED TO EXPRESS THE
TRUE INTENT OF THE PARENTS.
Lillian Singleton v. Sheila Singleton,
et al., 659 S.W.3d 336 (Mo. banc 2023).
Lillian and J.C. Singleton were
married and had three children:
Dennis, Keith and Kelly. Dennis
married Sheila. Lillian and J.C.
owned two tracts of land. One
tract was approximately 71 acres
(Tract I) and the other tract was
approximately 40 acres (Tract II).
In 1995, Lillian and J.C. consulted
an attorney, Donald Rhodes,
about leaving the tracts to their
children and instructed him to
prepare two warranty deeds.
Rhodes prepared the deeds, and
Lillian and J.C. executed the deeds
contemporaneously on February 15,
1995. The deed to Tract I stated that
J.C. and “Lillian, husband and wife,
for their lifetime and at the death
of the last to die the remainder to
Dennis, Keith and Kelly, as tenants
in common.” The deed to Tract II
states that J.C. and “Lillian, husband
and wife, for their lifetime and
at the death of the last to die the
remainder to Dennis, for his lifetime
and at his death the remainder to
Chad and Rusty, as joint tenant with
rights of survivorship.” Chad and
Rusty were the children of Dennis
and Sheila. The deeds were signed
and duly recorded. J.C. died in 1998
and Dennis died in 2014.
In 2018, Kelly accompanied Lillian,
her mother, to a consultation with
Rhodes to discuss Lillian obtaining
a will. During this meeting, Rhodes
explained the deeds’ operative
language. Lillian informed Rhodes
that the Tract I deed was incorrect
and that Dennis was not supposed
to receive the remainder interest
in both tracts. She stated that she
intended for Dennis to receive the
remainder interest only in Tract
II, not Tract I. Rhodes contacted
Sheila, Chad and Rusty Singleton
and requested that they execute
a quitclaim deed to convey their
interest to Lillian, Keith and Kelly.
When no response was received,
Lillian led suit in Stoddard County
Circuit Court against Sheila, Chad
and Rusty, seeking either to set
aside or reform the Tract I deed
to reect her intent that Dennis
not receive a remainder interest in
that tract. She alleged that Rhodes
was instructed to prepare a deed
conveying Tract I to Keith and
Kelly only, but mistakenly included
Dennis in the conveyance. She
alleged she was unaware of the
mistake until 2018.
At a bench trial, when Lillian was
asked about whether the deeds
contained any mistakes, the
defendants objected, stating that
the answer would violate the parol
evidence rule and was irrelevant.
The trial court reserved ruling on
the objection, permitting defendants
to lodge a continuing objection,
and allowed Lillian to testify about
how Dennis was not supposed
to receive a remainder interest
in Tract I because he received a
remainder interest in Tract II. The
court sustained defendants’ hearsay
objections when Lillian attempted to
testify about J.C.’s intent by using the
word “we” to indicate both her and
her husband’s wishes for property
distribution. Lillian testied she
wanted Dennis removed from Tract
I deed because he would receive
substantially more acres than his
siblings, but she did not notice the
error when signing the deeds.
Rhodes testied on Lillian’s behalf
29
and stated he compiled notes
when he met with Lillian and J.C.
in 1995 about how to prepare the
deeds. Defendants objected to the
admission of his notes as violating
the parol evidence rule regarding
J.C.’s intent and being irrelevant.
Again, the court took the objection
with the case and allowed Rhodes
to testify about his notes. He read
his notes into the record, stating
Tract I was to be conveyed to Keith
and Kelly and Tract II was to be
conveyed to Dennis. Rhodes opined
that this “seemed like a fair way to
divide it equally among the three
children because Tract I consisted
of 71 acres and Tract II had about 40
acres. He admitted he committed
a scrivener’s error in drafting the
Tract I deed, and that the mistake
was not discovered until 2018.
Keith testied that J.C. spoke to
all the children, either separately
or together, about his wishes
regarding how the tracts would be
divided into approximately 40-acre
parcels, give or take several acres
for each child.
The circuit court entered judgment
in Lillian’s favor ordering that the
Tract I deed be reformed. The
court found Lillian’s and Rhodes’
testimony credible and gave it
substantial weight. The court
overruled appellant’s parol evidence
objections because the two deeds
were prepared contemporaneously
and “a rational assumption
might be reached that Lillian and
J.C. intended to give each child
approximately 40 acres.” The court
found Rhodes’ testimony created
an ambiguity because his notes
and recollection demonstrated he
incorrectly prepared the deed, even
though there was no ambiguity
within the four corners of the
Tract I deed. The court found
that no mutual mistake occurred
because Rhodes acted solely on
behalf of Lillian and J.C. and had no
knowledge or contact with Dennis,
Keith or Kelly when preparing
the deeds. The court, however,
determined equity permitted the
reformation of a gift under these
circumstances pursuant to Kemna
v. Graver, 630 S.W.2d 160 (Mo.App.
E.D. 1982).
The case was appealed to the
Missouri Court of Appeals,
Southern District, which reversed
the judgment on the grounds that
Lillian’s unilateral mistake, without
evidence of fraud, was insufcient
as a legal basis for reforming
the deed, and that the trial court
had improperly followed Kemna
instead of a controlling precedent
from the Missouri Supreme Court,
Hood v. Owens, 293 S.W. 774 (Mo.
1927). Lillian then appealed to the
Missouri Supreme Court which
granted transfer. Appellants (Sheila,
Chad and Rusty) argued that the
circuit court erred in entering its
judgment reforming the Tract I
deed because the court erroneously
relied on parol evidence when the
Tract I deed was unambiguous on
its face and the contemporaneous
transfer of Tract II cannot create
an ambiguity, and, further,
that Rhodes’ testimony was
incompetent to create an ambiguity.
They further argued that Missouri
law does not permit a court of
equity to reform a deed in the face
of a unilateral mistake.
The Supreme Court explained that
an ambiguity exists when there
is duplicity, indistinctiveness
or uncertainty in the contract’s
language which means “it is
reasonably open to different
construction.” Here, there was
no duplicity, instinctiveness or
uncertainty on the deed’s face or in
the plain language that reasonably
would be open to different
interpretations. Thus, the Tract I
deed was unambiguous on its face.
But ambiguity is not the only
basis for reformation of a written
instrument. An equity court’s
power to reform an instrument,
because it fails by reason of
mistake to express the intention
of the parties, has long been
considered unquestionable. Parol
evidence may also be admissible
to demonstrate reformation of a
deed based on mutual mistake.
However, the Supreme Court found
no mutual mistake between the
two separate parties, the husband
and wife on the one hand and
their children on the other. The
problem here is that the deed
was a unilateral conveyance and
not an agreement between two
parties. The Court explained that
a unilateral mistake on one side
without fraud of some kind on the
other side including the mistake
will not be sufcient to relieve the
party making the mistake, and is a
mistake equity will not reform.
The Court declined to follow
Kemna, in which the court held
that “equity will reform a voluntary
instrument of conveyance at
the suit of the donor when the
instrument does not express the
donor’s intent in making the
gift.” The Court noted that Kemna
“is an outlier among equitable
reformation cases in Missouri, even
though other jurisdictions have
adopted the rule.” The Court further
noted that even if it were to adopt
the holding in Kemna it would
not aid Lillian because Kemna is
distinguishable from Lillian’s case.
In Kemna, the grantor was available
to express his intent and mistake,
but here J.C. is no longer available
to speak his intent.
Accordingly, the Court held that
Lillian had failed to prove the type
of mistake that would warrant
reformation of the Tract I deed.
30 THE ST. LOUIS BAR JOURNAL
Summer 2023
PERSONAL INJURY SUIT AGAINST
CITY OF ST. CHARLES DISMISSED
FOR FAILURE TO PROVIDE ST.
CHARLES WITH NOTICE OF SUIT
AS REQUIRED BY THE CITY’S
CHARTER.
Christopher Zang v. City of St.
Charles, 659 S.W.3d 327 (Mo. banc
2023).
In June 2019, Christoper Zang fell
off his bicycle and injured himself
while crossing an open-grated
metal bridge in St. Charles. Nine
months later, Zang led suit against
the City of St. Charles and St.
Charles County, alleging negligence
and premises liability. He claimed
the property was owned or
controlled by the City or County.
The City moved to dismiss the
action, arguing that it was barred
because Zang failed to give proper
notice as required by Section 12.3 of
the City’s Charter which provides:
NOTICE OF SUITS.
No action shall be maintained
against the city for or on
account of an injury growing
out of alleged negligence of
the city unless notice shall rst
have been given in writing to
the mayor within ninety days
of the occurrence for which
said damage is claimed, stating
the place, time, character and
circumstances of the injury, and
that the person so injured will
claim damages therefor from
the city.
Zang, however, claimed the circuit
court erred in sustaining the City’s
motion to dismiss because § 12.3
of the City Charter conicts with
Sections 537.600.1, 82.210, and
516.120, RSMo. Zang contended he
complied with the ve-year statute of
limitations in § 516.120, the only other
time restraint imposed upon him.
Zang appealed to the Missouri Court
of Appeals, Eastern District, which
reversed the trial court, holding
that the charter provision conicted
with state law. The city appealed to
the Missouri Supreme Court, which
granted transfer.
St. Charles is a constitutional
charter city with a population of
fewer than 100,000 inhabitants.
The City derives its charter powers
from Art. VI, § 19(a) of the Missouri
Constitution. The Supreme Court
noted that under § 19(a), the
emphasis is not on whether a
home rule city has authority to
exercise the power involved, but
rather whether the exercise of that
power conicts with the Missouri
Constitution, state statutes or the
charter itself, citing Cape Motor
Lodge, Inc. v. City of Cape Girardeau,
706 S.W.2d 208, 211 (Mo. banc 1986).
The Supreme Court held that
as a general principle, where a
charter provision and statute do
not irreconcilably conict, both
stand. However, if there is an
irreconcilable conict between a
statute and charter provision, the
charter provision is pre-empted.
There is no conict if the local law
merely enlarges or supplements the
state law, “such as when the locality
prohibits more than the state
prohibits.”
Here, Zang argued that Charter §
12.3 must be pre-empted because
it: (1) permits what the statute
prohibits and (2) occurs in an area
in which the general assembly
intended to occupy the legislative
eld. Section 537.600.1(2) waives
sovereign immunity for injuries
caused by the condition of a public
entity’s property, if the plaintiff
establishes that the property was
in dangerous condition at the time
of the injury and that the injury
directly resulted from a dangerous
condition that created a reasonably
foreseeable risk of harm, and that
either a negligent or wrongful act
or omission of an employee of the
public entity within the course
of the employment created the
dangerous condition or the public
entity had actual constructive
notice of it.
For constitutional charter cities
of at least 100,000 inhabitants,
however, § 536.600.1(2)’s waiver
of sovereign immunity is limited
by § 82.210’s notice requirement,
which provides that no action may
be maintained against any city that
has or may attain a population of
100,000 inhabitants until 90 days
notice of the occurrence is given in
writing to the mayor.
The Court explained that, to the
extent Zang argued that § 82.210
prohibits constitutional charter
cities with populations of fewer
than 100,000 inhabitants from
creating notice requirements, this
argument holds no merit because §
82.210 by its terms does not apply
to constitutional charter cities with
a population of fewer than 100,000.
Moreover, while Charter § 12.3
limits § 537.600.1(2)’s waiver of
sovereign immunity, the Charter’s
notice requirement does not
prohibit what § 537.600.1(2) permits.
Notice requirements have been
held constitutional even when
they limit a municipality’s waiver
of sovereign immunity. Likewise,
§§ 82.210 and 537.600.1(2) do not
evince a legislative intent to occupy
the eld and prevent constitutional
cities with populations of less than
100,000 inhabitants in creating
notice requirements.
Zang also claimed that Charter §
12.3 irreconcilably conicts with
§ 516.120 because both create
time restrictions on when an
action may be brought. Section
516.120(2) imposes a ve-year
statute of limitations for an
action upon a liability created by
statute other than a penalty of
forfeiture. Previously the Court
had held, in Findley v. City of
Kansas City, 782 S.W.2d 393, 397
(Mo. banc 1990), that § 82.210’s
90-day notice requirement was
31
constitutional, even though it
had the same practical effect as
the statute of limitations because
notice requirements are rooted
in sovereign immunity. The
Court held that pursuant to Art.
VI, § 19(a)’s grant of authority to
constitutional charter cities, the
City possesses the power to impose
a notice requirement because
notice requirements are not limited
or denied by § 516.120. The Court
afrmed the trial court’s dismissal.
SUPREME COURT RULES ON
PROPER JURISDICTION AND
VENUE FOR FILING A MOTION TO
VACATE UNDER MISSOURI’S NEW
“INNOCENCE STATUTE.”
State ex rel. Andrew Bailey v. Hon.
Robin E. Fulton, 659 S.W.3d 909 (Mo.
banc 2023).
The issue in this case was the
proper venue and jurisdiction
for a prosecuting attorney to le
a motion to vacate or set aside a
conviction under Missouri’s new
“innocence statute,” § 547.031.
In 1999, the Washington County
Prosecuting Attorney charged
Michael Politte with murdering
his mother. Later that month,
Politte led an application for
change of judge and change of
venue. The circuit court sustained
the motion for change of venue
and ordered the cause transferred
to St. Francois County, where the
Washington County prosecuting
attorney prosecuted the case. At
trial in April 2002, a St. Francois
County jury found Politte guilty of
second degree murder, and he was
sentenced to life in prison.
In May 2022, the Washington
County Prosecuting Attorney led a
motion in Politte’s original criminal
case to vacate or set aside Politte’s
conviction, pursuant to § 547.031,
which went into effect in 2021. That
statute provides:
A prosecuting or circuit
attorney, in the jurisdiction in
which a person was convicted of
an offense, may le a motion to
vacate or set aside the judgment
at any time if he or she has
information that the convicted
person may be innocent or
may have been erroneously
convicted. The circuit court in
which the person was convicted
shall have jurisdiction and
authority to consider, hear, and
decide the motion. (emphasis
added)
The Missouri Attorney General
led a motion to dismiss “for lack
of jurisdiction or authority and for
failure to state a claim,” as well as a
motion to transfer the proceedings
to a new civil case, which motions
were overruled. Subsequently,
the Attorney General sought a
permanent writ of prohibition from
the Missouri Court of Appeals,
Eastern District, which was
unsuccessful, and then led a writ
of prohibition with the Supreme
Court.
The Attorney General sought a
writ prohibiting the circuit court
from taking any action other
than to dismiss the Washington
County prosecuting attorney’s
motion to vacate or set aside
Politte’s conviction or, alternatively,
prohibiting the court from taking
any action other than transferring
the motion to vacate from Politte’s
original criminal case to a new civil
action.
The Supreme Court issued a writ
of prohibition, holding that the
language of § 547.031.1 has a plain
and ordinary meaning that clearly
states that a motion to vacate under
the statute can be brought only by a
prosecuting attorney of the county
in which the person was convicted
of the ofce.
Here, St. Francois County, not
Washington County, is the
jurisdiction in which Mr. Politte was
convicted, so only a prosecuting
attorney in St. Francois County
may le a motion to vacate Politte’s
conviction under § 547.031. The
Washington County prosecuting
attorney is not a prosecuting
attorney in St. Francois County, and
thus § 547.031 does not authorize
the Washington County prosecuting
attorney to le a motion to vacate
or set aside Mr. Politte’s conviction.
In a footnote, the Supreme Court
also explained that an action
to vacate under § 547.031 “is a
new civil action” representing a
collateral attack on the conviction
and sentence. It is “not part of the
original criminal case regardless
of how it is docketed or referred
to in the circuit court.” Therefore,
the suggestion by the Washington
County prosecuting attorney that he
qualied as a prosecuting attorney
in St. Francois County, because the
prosecutor had authority to act in
the original criminal case within
St. Francois County once the case
was transferred, failed because the
motion to vacate was not part of
the original criminal proceeding but
was a separate action.
EIGHTH CIRCUIT HOLDS CHARTER
SCHOOLS ENTITLED TO RECEIVE
PER PUPIL SHARE OF SPECIAL-
SALES-TAX REVENUE UNDER
STATE LAW.
Liddell et al. v. Special School Dist.,
65 F.4th 969 (8th Cir. 2023).
This decision relating to
charter schools in St. Louis is a
continuation of the litigation that
started 50 years ago to desegregate
the St. Louis public schools.
The Eighth Circuit, construing
several Missouri state statutes,
largely afrmed the decision by
U.S. District Judge Henry Autrey
that charter schools are entitled
to receive their per-pupil share of
special-sales-tax revenue under
32 THE ST. LOUIS BAR JOURNAL
Summer 2023
state law. While Judge Autrey
also had held that charter schools
were required to spend their own
special-sales-tax proceeds on
desegregation efforts, the Eighth
Circuit overruled Judge Autrey on
that issue and vacated the condition
that charter schools must spend
their special sales tax proceeds on
desegregation measures.
Fifty years ago, Minnie Liddell
sued to desegregate the St. Louis
public school system. The NAACP
joined the lawsuit, and the State of
Missouri (among others) became
a defendant. In 1983, after years
of battling in court, the parties
struck a deal that lasted until
1999, when they agreed to end
Missouri’s remedial obligations.
In that agreement, the St. Louis
School Board agreed to implement
its own “measures” for “at least
ten years,” including for “magnet
schools,” “all-day kindergarten,”
and “summer school.” The funding
would come from two sources:
state aid and a special sales tax.
Subsequently, the Missouri
Legislature ratied the parties’
settlement agreement and created a
charter-school option. Such charter
schools would be open to everyone;
they had no legacy of segregation
and remained “independent” of
local school boards.
The obligations created by the
settlement agreement were all
subject to nancing pursuant to
Missouri Senate Bill 781. That bill
contained the original charter-
school-funding formula, and it
required the St. Louis public school
district to “pay” charter schools
“an annual amount equal to the …
adjusted operating levy for school
purposes … times the guaranteed
tax base per eligible pupil … times
the number of the district’s resident
pupils attending the charter
school….” § 160.415.2(1), RSMo. 1998.
The Eighth Circuit pointed out that
this formula had three components:
First, the “guaranteed tax base per
eligible pupil”; second, the “number
of the district’s resident pupils
attending the charter school”; and
third, the “adjusted operating levy
for school purposes.” The last
component was the focus of
this case.
Revisions to § 160.415 were passed
in 2006. First, the revisions
claried that charter schools have
the right to reserve their per-
pupil share of “local tax revenues,
including sales tax.” Second, they
gave charter schools the option
of receiving direct funding, rather
than having St. Louis Public
Schools serve as an intermediary.
No opposition followed, although
some complained that the new
formula improperly diverted funds
that the district otherwise would
have received under the settlement
agreement.
Finally, in approximately 2016,
the St. Louis Public School District
led suit to enforce the settlement
agreement by having the State
of Missouri reimburse the Public
School District for the special-
sales-tax revenue that the district
had lost under the new funding
formula. Judge Autrey, however,
sided with the State. He concluded
that the charter schools should
have received their per pupil share
of special-sales-tax revenue under
the state law. Nothing in the
settlement agreement changed that
fact. However, he went on to order
that in order to provide “equality
and a path for opportunity,”
charter schools were required to
spend their own special-sales-
tax proceeds on “remediation
programs.”
The Eighth Circuit explained that
the parties’ settlement agreement
is what created the need for
supplemental funding. Magnet
schools, all-day kindergarten and
summer schools are expensive
to operate, so rather than risk the
progress the parties had made in
reaching a settlement, they opted
to supplement existing property
taxes with special sales tax that
passed by referendum vote. This
sales tax equivalent then became a
part of the adjusted operating levy
that had to be shared with charter
schools. The Eighth Circuit pointed
out that the funding formula did
not create any disproportionate
adverse nancial impact on the St.
Louis Public School District because
it never had a right to keep all the
special-sales-tax revenue for itself.
The Court, however, disagreed
with the lower court which had
held that funds received in the
special sales tax by the charter
schools were required to be used for
desegregation purposes. The Court
explained that because charter
schools were not in existence at the
time of the settlement agreement,
they could not have been obligated
to do anything, much less foot a bill
for desegregation measures that the
charter school did not need.
SUPREME COURT INVALIDATES
STATE STATUTES REQUIRING
THE CREATION OF A PARKING
COMMISSION IN ST. LOUIS CITY
BUT HOLDS THE REMAINING
PROVISIONS OF THOSE STATUTES
VALID AND ENFORCEABLE.
James J. Wilson, et al. v. City of St.
Louis, et al., 662 S.W.3d 749 (Mo.
banc 2023).
Two St. Louis residents, a St.
Louis alderman and the City
itself sued in St. Louis City Circuit
Court to invalidate §§ 82.485 and
82.487 (the “parking statutes”) as
constitutionally invalid because
they create powers and duties of
municipal ofces of the City of St.
Louis, a charter city, in violation
of Art. VI, § 22 of the Missouri
Constitution.
The trial court held that the
plaintiffs have standing to contest
the validity of the statutes and in
ruling on summary judgments
the circuit court held the parking
33
statutes violated Article VI, Section
22 of the Constitution because they
create or x the powers and duties
of the comptroller, the director
of streets, and the chairperson
of the board of aldermen’s trafc
committee. The court further found
that the constitutionally invalid
provisions could not be severed
from the remainder of the statutes
and, thus, the court declared the
entirety of the parking statutes
invalid and void. The State of
Missouri, a party to the suit, and
the city treasurer appealed to the
Missouri Supreme Court, arguing
that the circuit court erred in
nding the parking statutes violate
the Missouri Constitution.
Article VI, § 22 provides:
No law shall be enacted creating
or xing the powers, duties or
compensation of any municipal
ofce or employment, for any
city framing or adopting its
own charter under this or any
previous constitution, and all
such ofces or employments
heretofore created shall cease
at the end of the terms of any
present incumbents.
It is uncontroverted, the Court
noted, that the City of St. Louis
is a charter city protected by the
provisions of Article VI, § 22. The
question for the Court was whether
the parking statutes create or x
the powers or duties of a municipal
ofce in the City of St. Louis.
The Court explained that the
parking statutes create a parking
commission “of any city not
within a county.” Similarly, §
82.485.4 provides that the parking
commission is composed of
ve members: the treasurer, as
supervisor of parking meters,
whose position is to act as the
parking commission’s chairperson;
the chairperson of the aldermanic
trafc committee; the director of
streets; the comptroller; and the
director of parking operations,
a position within the treasurer’s
ofce. Section 82.485.4 then
provides that the parking
commission “shall approve parking
policy as necessary to control public
parking, shall set rates and fees to
ensure the successful operation of
the parking division, and require
a detailed accounting of parking
division revenues.”
Section 82.487.1 further provides
that the parking commission
“shall be the City’s authority for
overseeing public parking” and
on the City’s behalf the parking
commission must approve
guidelines governing collection
of any parking violations or
complaints issued by the City,
budget modications for the
parking fund, and the acquisition of
parking facilities or spaces owned
in whole or in part by the parking
division. These provisions also
require the comptroller, director of
streets, and the alderman serving
as chair of the aldermanic trafc
committee to serve as members of
the parking commission. Serving
on the parking commission requires
them to perform “duties.”
Therefore, the Court found that §
82.485.4 creates duties of the City
ofcers of comptroller, director of
streets, and the alderman appointed
to serve as a chair of the aldermanic
trafc committee. The Court found
that because the parking statutes
create duties of those ofces,
provisions of §§ 82.485 and 82 .487
creating those duties violate the
constitution.
The Court further found that, to
the extent § 82.485.4 no longer
provides for a parking commission,
none of the remaining powers and
duties assigned to the treasurer,
as supervisor of parking meters,
requires the existence of a parking
commission. With the language
requiring a parking commission
stricken, the statute is then valid
and not void. Thus, the voided
language relating to the parking
commission in § 82.487.1-2 is
severable from the rest of the
statute and none of the remaining
provisions of the statutes are
dependent upon the existence of
the voided provisions.
34 THE ST. LOUIS BAR JOURNAL
Summer 2023
Introduction
Together with two of his
brothers, Craig and Kurt, the late
Scott Hoensheid1 was a third-
generation owner and operator
of Commercial Steel Treating
Corporation (“CSTC”), a very
successful metals nishing
company in Michigan. In 2014,
Kurt informed his brothers that
he wanted to retire. Craig and
Scott did not want the company
to assume debt in order to buy
him out. (Apparently, this had
happened twice in the past with
two other brothers.)
Accordingly, they engaged an
investment banking rm to nd
a third-party purchaser. Fairly
quickly, their advisor at that
rm solicited several letters
of intent from various private
equity investors. By April 2015,
the brothers had identied a
likely purchaser, and negotiations
began in earnest. Each of the
three brothers stood to clear $30
million on the transaction, much
of it taxable as long-term
capital gain.
Scott decided he would like
to mitigate his tax burden by
contributing a portion of his
stock to a donor-advised fund
at Fidelity Charitable. The
Internal Revenue Code is very
friendly to such an arrangement.
To the extent unrealized gain
would have been long-term,2
a charitable contribution of
appreciated property is deductible
at fair market value, offsetting
ordinary income,3 while at the
same time, properly structured, it
is not an income recognition event.
Scott's attorney warned him,
however, that it would be
important to complete the gift
"before any purchase agreement
is executed," otherwise the
Internal Revenue Service might
recharacterize the transaction
as an "assignment of income,"
and while he could still claim an
income tax charitable deduction
for the value of the stock
contributed, he would not avoid
recognizing the capital gain.
As we shall see, this advice fell
a little short, but in any event it
appears Scott did not quite
follow it.
As Scott informed his attorney,
he wanted to be "99 percent sure"
the deal would close before he
let go of the stock, because if the
deal fell through, he did not want
to be holding less stock than
either of his brothers. In addition,
because he wanted the value
of the gifted stock, as nearly as
possible, to equal $3 million,
Scott was uncertain until the
last moment exactly how many
shares he wanted to contribute.
Five days before the July 15
closing, Scott delivered a stock
certicate to his attorney, for
eventual redelivery to Fidelity.
The certicate was undated, and
there was a slight discrepancy
between the number of shares
reected on the certicate and
the number of shares Fidelity
ultimately acknowledged
receiving. It was not until two
days before closing that Fidelity
nally had a certicate in hand
and was able to sign off on an
agreement to sell its shares to the
third-party purchaser.
Certainly, this was literally
"before the purchase agreement
was executed," but on
examination of Scott's tax return,
the IRS nonetheless insisted that
the contribution to Fidelity was
an anticipatory assignment of
income, and that Scott should be
taxed on the gain. The Tax
Court agreed.4
Taking a Step Back
In fairness to Scott's attorney,
and despite the fact that this is a
nonprecedential, memorandum
opinion, which should mean that
it simply recites existing law, there
has been some uncertainty in the
caselaw when exactly it is "too late"
to make such a transfer to charity
by Richard M. Wise, CPA, JD
THE ST. LOUIS BAR JOURNAL/ SPRING 2020 47
No Compromise
The Background
By Richard M. Wise, CPA, JD
Back in the late 1990s, a financial
advisor in Atlanta named Mark Klop-
fenstein recommended to a number of
his clients that they invest in a “struc-
tured securities transaction” that was
intended to create artificial tax losses
they might claim in order to offset
recognized taxable gains from other
investments. He invested in several of
these on his own account.
Without getting too deep into the
technical details, which are beyond
the scope of this column’s subject
matter, it would suffice to say that
in each of these transactions the tax-
payer would transfer encumbered
property to a partnership as a capi-
tal contribution -- in some cases,
proceeds of a short sale of Treasury
instruments, subject to the obliga-
tion to repurchase, in other cases,
“paired” put and call options in for-
eign currencies.
The taxpayer would claim a tax ba-
sis in his partnership interest that did
not account for the offsetting liability. Not
much later, when he disposed of his
interest at a price that did take account of
the liability, he would claim a loss.
These strategies were devised by
lawyers for Deutsche Bank, which
marketed them for a number of years.
The lawyers provided opinion letters
to the investors arguing that because
the Internal Revenue Code (“the
Code”) did not expressly address
these scenarios, the taxpayer would
“more likely than not” prevail on
examination.
1
If Mr. Klopfenstein’s
reliance on these opinion letters were
“reasonable”, he would have been
protected from incurring penalties on
any resulting tax underpayments.
2
According to Mr. Klopfenstein’s
understanding, the purpose of these
opinion letters was to protect the tax-
payer from incurring underreport-
ing penalties in the event the Internal
Revenue Service (“IRS”) disallowed
the loss deductions upon examina-
tion or otherwise. The cost of an
opinion letter was, in his words, a
“risk premium.” He later also said he
believed the claimed losses did have
“economic substance.”
Unsheltered
At some point, the IRS became
aware of these transactions, and in a
series of published notices3 starting
in 1999 identified these as “listed”
transactions they would challenge
on the ground that there was no
“economic substance” to the pur-
ported losses.
In 2003, the IRS audited Mr. Klop-
fenstein’s federal tax returns for 1999
and 2000, and assessed very large de-
ficiencies. He filed a timely petition
in United States Tax Court to contest
these assessments, but eventually set-
tled, paying about $1.4 million in taxes
and penalties, plus some amount in in-
terest. He then sued Deutsche Bank on
a theory that they had misrepresented
these transactions as in fact having
“economic substance,” but that action
was dismissed as untimely.
4
Unfortunately, Mr. Klopfenstein’s
problems were just beginning.
Inasmuch as he had continued to
act as a “material advisor,” promot-
ing these transactions to several of
his clients even after IRS had listed them
as tax shelters, and had failed to file the
required disclosure statements,
5
in 2014
the IRS sent Mr. Klopfenstein a Form
5701--Notice of Proposed Adjust-
ment, proposing to assess penalties
totaling some $1.6 million.
The formal assessment was made
in 2016, at which time Mr. Klopfen-
stein offered to settle for $10,000.00,
which was not even “pennies on the
dollar.” The Examination Division
promptly rejected that offer, and Mr.
Klopfenstein filed a protest, taking
the issue up with the Appeals Office.
After some back and forth, the par-
ties agreed to settle for $169,855.00,
slightly over 10.0% of the amount the
IRS had assessed.
And here, almost five hundred words
in, is where our story actually begins.
1. Two of these lawyers were later convicted of tax fraud. Each was sentenced to several
years in federal prison and fined several hundred million dollars, and, of course, each
was disbarred.
2. Code section 6694(a)(2)(C).
3. Notice 99-59, IRB 1999-52, p. 761 (12/27/99), Notice 2000-44, IRB 2000-36, p. 255
(09/05/00), Notice 2003-81, IRB 2003-51, p. 1223 (12/22/03).
4. Klopfenstein v. Deutsche Bank AG, No. 14-CV-00278 (N.D.Ga. 05/13/14), aff’d, No. 14-
12611 (11th Cir. 11/20/14) (unreported).
5. Form 8918 -- Material Advisor Disclosure Statement. The form does not require the
advisor to identify participants, but the advisor is required to maintain lists of partici-
pants, which IRS may demand.
’Tis Better to Give than to Receive
(So Long as You Have a Qualified Appraisal)
35
and avoid recognition of gain.
The case usually cited as seminal
on this subject is Palmer v.
Commissioner.5 In that case, the
taxpayer had contributed some
of his voting stock in a closely
held corporation to a private
foundation which he controlled.
Simultaneously, the foundation
had purchased a controlling
interest in the corporation from
an irrevocable trust of which the
taxpayer was trustee, in exchange
for a promissory note.6 Literally
the next day, the corporation
redeemed the contributed stock,
and the foundation used the cash
proceeds to pay off the note.
The IRS treated this
acknowledged prearrangement
as an anticipatory assignment
of income, but the Tax Court
respected the form of the
transaction, noting that at the
time the gift was made, the
taxpayer was not yet entitled to
the proceeds of a redemption
which was not yet on offer.7
Eventually, the IRS acquiesced
in the result in Palmer, but on
somewhat different grounds. In a
1978 revenue ruling,8 the agency
said it would not challenge a
similar arrangement, provided
the recipient charity did not
accept the property subject to an
existing, enforceable obligation
to sell.
The Tax Court has more than
once said it is not bound by
this formulation,9 most recently
in Dickinson v. Commissioner,10
which also involved a transfer
of closely held stock to a
donor-advised fund at Fidelity
Charitable. The Commissioner
had argued that the contribution
was made subject to an
understanding that Fidelity
would immediately tender the
stock for redemption, which in
fact it did. But again, the Tax
Court ruled that the taxpayer was
not already entitled, at the time
the gift was made, to the proceeds
of a redemption that had not yet
been approved.
And it is this kind of thinking that
likely informed the advice Scott's
attorney gave him, that the gift
to Fidelity had to be completed
before the purchase agreement
was signed.
Virtual Certainty
There are, however, other
decisions to the effect that the
gift to charity is already "too
late" if it is made at a time
when the redemption or stock
sale is "virtually certain" to be
completed.
Most notably, in Ferguson v.
Commissioner,11 the Tax Court
itself, in a reviewed opinion,
determined that the proceeds of a
sale to a third party were taxable
to the transferor if, at the time
of the contribution, the tender
offer and merger were "practically
certain to proceed," despite the
need in the particular case to
waive certain not insubstantial,
emergent contingencies.12 The
U.S. Court of Appeals for the 9th
Circuit afrmed.
And it was this logic, rather
than strict enforceability of
the pending stock purchase
agreement, that the court brought
to bear in Hoensheid.
But First …
As a threshold matter, the
court determined that although
Scott did complete a gift of the
stock to Fidelity Charitable, this
did not occur until two days
before closing. At trial, Scott
testied that he had completed
the gift a month earlier, on
June 11. The court found this
testimony not credible. A written
acknowledgment from Fidelity,
issued contemporaneously with
the closing, was withdrawn
months later and replaced with
a letter reciting the earlier date.
But because Scott did not produce
the superseded acknowledgment
letter at trial, the court presumed
its contents would be unfavorable
to his position.
Delivery of the stock certicate to
Scott's attorney ve days before
closing did not place the stock
beyond his reach to rescind the
transfer, the court said. And the
court was unwilling to conclude
that a notation on the corporate
records ve days before the
closing was sufcient, under
Michigan law, to constitute a
transfer of certicated stock.
It was only when Fidelity had
the certicate in hand, two days
before closing, that the gift was
complete, the court said.
The court then considered
Scott's arguments (a) that the
case was controlled by the
recent memorandum decision
in Dickinson13 and (b) that the
Commissioner was precluded
from taking a position contrary
to the 1978 revenue ruling
acquiescing in Palmer.14
While the court acknowledged
that its decision in Dickinson
hinged on a nding that the
stock redemption "was not a fait
accompli at the time of the gift,"
it distinguished that case on the
ground that the causality was
reversed. In Dickinson, there would
have been no redemption "but for"
the charitable gift, thus there was
no "practically certain" realization
event for the taxpayer to avoid,
whereas here there would have
been no charitable gift "but for" the
pending stock purchase.
36 THE ST. LOUIS BAR JOURNAL
Summer 2023
And with respect to Rev. Rul. 78-
197, the court said the facts of the
present case were not sufciently
similar to those of the revenue
ruling to justify Scott’s reliance
on it. On the other hand, the
court was unwilling to accept the
Commissioner's argument that
Fidelity accepted the stock under
an existing obligation to sell.15
Determining Factors
Having established July 13, two
days before closing of the stock
purchase, as the date the gift
to Fidelity was completed, the
court next examined several
circumstances suggesting that
the closing was then already
"virtually certain" to occur.
A week earlier, on July 6, the
prospective purchaser had
incorporated a subsidiary holding
company to receive the target
stock. On July 10, the target
submitted to the relevant state
regulatory agency an amendment
to its articles of incorporation,
allowing for actions that would
otherwise require a shareholder
meeting to instead be taken
by written consent of the
shareholders.
Crucially, on July 10 the target
had paid out over $6.1 million
in employee bonuses, largely
stripping the corporation of cash
it might otherwise have required
in order to continue operations.
While another $4.7 million
characterized as "dividends"
was not paid out to the three
brothers until the day before the
closing, the decision to make that
distribution had been made on
July 7.16 The court observed, “we
consider it highly improbable that
petitioner and his two brothers
would have emptied CSTC of its
working capital if the transaction
had even a small risk of not
consummating.”
Finally, while there were a couple
of contingencies still unresolved
as of July 13, the court found that
these were insubstantial. And the
court characterized the remaining
formality of shareholder approval
as "ministerial."
While the court recognized that
its holding "does not specify a
bright line for donors to stop
short of in structuring charitable
contributions of appreciated
stock before a sale," it also
noted that Scott's attorney had
recommended that he complete
the transfer considerably before
he nally did.
It Gets Worse
The bottom line, although Scott
did complete the gift, he was
nonetheless taxable on the gain.
Still, this should be essentially a
wash, yes? Well, no.
The subject of the gift was stock
in a closely held corporation,
not the cash proceeds, and the
amount of the claimed deduction
was well in excess of $5,000.00.
In that circumstance, Code
section 170(f)(11)(C)17 and section
170A-13(c) of the regulations18
require that the claimed
deduction be substantiated by
a "qualied appraisal,"19 which,
among other things, requires a
written report from a "qualied
appraiser."20 If the taxpayer fails
to satisfy these requirements,
the deduction will be disallowed
altogether.
What exactly those two cited
terms mean could be the subject
of another thousand or more
words. Sufce it to say that,
again contrary to his attorney's
advice, the late Scott decided to
cut a corner here and engage the
investment banker who had put
the deal together to write up a
curbstone opinion of the value
of the contributed stock. This did
not y.
But the court did nd that the late
Scott Hoensheid (or his estate)
was not liable for a penalty for
substantial understatement of
tax,21 as he had placed reasonable
reliance on his attorney's
(erroneous) advice that it would
be sufcient to complete the gift
to Fidelity before the sale
actually closed.
37
1 The petitioner died after the case
was submitted, but before the
opinion was issued. His executor
was substituted as petitioner.
2 See 26 U.S.C. § 170(e)(1)(A).
3 Subject, however, to an annual
limit of 30 percent of adjusted gross
income, with the excess carried
forward up to five years. See 26
U.S.C. § 170(b)(1)(C).
4 Estate of Hoensheid v.
Commissioner, T.C.Memo. 2023-34
(March 15, 2023).
5 62 T.C. 684 (1974), aff'd on other
grounds, 523 F.2d 1308 (8th Cir. 1975).
6 This transaction occurred prior to
the enactment of Code section 4941
(26 U.S.C. § 4941) as part of the Tax
Reform Act of 1969, Pub.L. 91-172,
which imposes a steep excise tax on
"self-dealing" transactions between
"disqualified persons" and private
foundations.
7 In light of the discussion that
follows, and setting aside the self-
dealing issues noted in footnote
5, supra, one might ask whether
Palmer would be decided favorably
for the taxpayer today.
8 Rev. Rul. 78-197, 1978-1 C.B. 83.
9 See, e.g., Rauenhorst v.
Commissioner, 119 T.C. 157 (2002).
10 T.C.Memo. 2020-158 (2020).
11 108 T.C. 244 (1997), aff'd 174 F.3d
997 (9th Cir. 1999).
12 More recently, in its
memorandum opinion in Chrem
v. Commissioner, T.C. Memo 2018-
164 (September 26, 2018), the court
cited Ferguson and, oddly, Rev.
Rul. 78-197, by way of concluding
that there were "genuine disputes
of material fact" that prevented
it granting the Commissioner's
motion for summary judgment.
That case was ultimately settled on
terms somewhat favorable to the
taxpayer.
13 See supra note 9 and
accompanying text.
14 This, in fact, was the grounds
on which the Tax Court rejected
the Commissioner's arguments in
Rauenhorst, supra note 8.
15 However, in a footnote citing
Chrem, supra note 11, the court did
say there might be circumstances
in which a donor-advised fund
sponsor would have a fiduciary
responsibility to dispose of a
minority position in a closely
held business entity, and that
in a particular case this might
amount to an existing obligation
to sell, triggering an anticipatory
assignment of income.
16 The Commissioner argued
that the fact that no part of this
"dividend" was paid to Fidelity was
yet further evidence that the stock
gift was not yet complete even
then, the day before closing. The
Tax Court dodged that question by
citing a nonprecedential Michigan
appeals court decision to the effect
that a gift of stock may be complete
even if the transferor retains the
right to receive a pending dividend.
17 26 U.S.C. § 170(f)(11)(C).
18 26 C.F.R. § 170A-13(c).
19 Defined at reg. section 170A-17(a),
26 C.F.R. § 170A-17(a).
20 Defined at reg. section 170A-17(b),
26 C.F.R. § 170A-17(b).
21 26 U.S.C. § 6662(b)(1).
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38 THE ST. LOUIS BAR JOURNAL
Summer 2023
Lady Justice: Women, the Law, and
the Battle to Save America
By Dahlia Lithwick
Penguin Press, 2022 – 350 pages
Reviewed by Hon. Arthur Litz
Books in Brief
Dahlia Lithwick is a Canadian-
American lawyer/journalist. Here
she presents a book praising a group
of women lawyer-litigators who
used the courts to counter acts of
the Trump administration, which
sought to limit abortion, restrict
immigration, and deny voting rights,
among other goals. She begins
with Pauli Murray, a great-grand-
daughter of slaves and an almost
unheard-of lawyer, whom Lithwick
calls one of the most visionary
and effective race and gender
equality lawyers of the 20th century.
She helped found the National
Organization of Women in 1966,
engaged in sit-ins in North Carolina,
and refused to go to the back of a
bus 15 years before Rosa Parks. She
obtained a law degree in 1944 from
Howard University, where she was
the only woman and graduated rst
in her class. The University North
Carolina turned her down because
she was Black, and Harvard Law
School because she was a woman.
She was the rst African American
woman to be awarded a doctorate in
law from Yale, and later taught law
at Brandeis for 27th years. Lithwick
says she paved the way for Ruth
Bader Ginsburg. Further details of
her life and career are too numerous
to list here, but she is surely
worth mentioning.
Here are some of the other
lawyers comprising the book:
Rebecca Heller is a Yale law
graduate who organized a
group to help documented
Muslims who President
Trump, by executive order,
tried to stop from entering the
United States. It became a fantastic
response by a group of mostly
women lawyers around the country
who, under pressure and working
mostly at airports, led habeas
corpus actions, and eventually won.
This was a super drama, superbly
presented.
Robbi Kaplan is an attorney who
litigated a case against white
supremacists in Charlottsville,
Virginia, resulting in verdicts against
14 individuals and 10 organizations,
a judgment of $26 million (later
reduced to $2.35 million due to a
Virginia cap on punitive damages).
Brigitte Ameri handled a case
involving a 17-year-old Mexican
immigrant who became pregnant
after being raped; the government
forbade her to have an abortion.
Lithwick proles Vanita Gupta, a
civil rights lawyer who, after a career
in that eld, led the Department of
Justice’s Civil Rights Division under
Attorney General Eric Holder, and
is now Associate Attorney General
under current A.G. Merrick Garland.
Stacy Abrams of Georgia, who
championed voting rights and ran
for governor in 2018, is another
subject. Her career is well known.
Nina Pereles’ career as a Latino vote
strategist is discussed as well.
Lithwick devotes a chapter about
women lawyers who charged Judge
Alex Kozinski, of the U.S. Court of
Appeals for the Ninth Circuit, with
sexual harassment, which seems
out of place in the main story
of various litigators, and one to
Christine Blasey Ford (who testied
against Justice Brett Kavanaugh) and
Anita Hill. Lithwick argues that in
these incidents there is no suitable
vehicle to hear allegations of sexual
harassment leaving the matter
reduced to she-said he-said.
There is much meat in this small
book, not only in its descriptions of
the activities of the women lawyers
but additionally the comments
and views of the author. Despite a
bit too much detail this book is a
compelling read.
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