*1 changes enhancing punishment clear, the law is time barred plain, and operating motor vehicles on those land is express language §of 516.500 raising 1715, efficacy so essential to the of HB III, a defense based on article sections 21 watercraft, relating legislature to that the in her criminal which remains passed would not have the bill without it. pending, thus she has adequate no reme- provisions, Nor can it be said the valid dy at law. alone, standing incomplete incapable are being legis of executed accordance with
lative intent without the void provision.
Because presumes severability, this Court
the challenged provisions, if unconstitu
tional, would be severed from the bill and
the remainder would remain intact. See 103-04;
Hammerschmidt Rizzo v.
State, 2006) S.W.3d Byron STEWART, Respondent. G.
(severing a section of a
prohibiting
bill
federal
running
criminals from
for office
No. SC 91370.
because
single
this section violated the
subject requirement
where the
of
Missouri,
Supreme
of
“relating
political
the bill was
subdivi
En Banc.
sions”); Missouri Ass’n
Execu
Club
State,
tives v.
related to adult entertainment because
they original purpose violated the require
ment); Manage National Solid Waste Dept.
ment Ass’n v. Director
Natural
Resources,
(severing section of a bill relating to
hazardous waste because it was a clear
title violation where the title of the bill was
“relating management”). to solid waste
Conclusion
I entry would reverse the trial court’s
summary judgment Cindy because Brandt judge away only provision if a takes provided § one RSMo there bill, presumably, legislator at least one may come a time when this Court should fact, upset. would provision be if this judicial reconsider whether the doctrine of prior passage, might were excised the bill support severance protect has served to enough support gamer not have had Const, the Missouri Constitution. Mo. article Therefore, enough pass. votes to if the Const, 15; III, VII, section Mo. article section bill, portion they courts sever 11; section RSMo 2000. may subverting legislative process allowing legislation might not have jus, 10. Ubi ibi remedium: Where there is a enough received votes to become law. right, remedy. there is a increases, frequency litigation
As the with the short statute of limitations that is *2 Pratzel, Weedin,
Alan D. Sharon K. office, Disciplinary Chief Counsel’s Jeffer- son City, Disciplinary for Chief Counsel. Stewart, Byron did G. not file a brief arguments in oral before this participate Court. RUSSELL, R. Judge.
MARY Attorney Byron pleaded to his charge driving while intoxi- cated, in a resulting felony conviction. Disciplinary Office of Chief Counsel (OCDC) seeks to his law license professional for his violation of the rules of light multiple conduct. instances of drunken and the seri- conviction, he is sus- ousness of his indefinitely from pended law leave to reinstate- apply with no ing ment for six months after the mandate is felony charge when it issued the admo- issued. nition. *3 This Court now considers the discipline Background
I. by warranted Stewart’s conviction.2 practice Stewart was licensed to law in Zink, (Mo. 166, See In re 278 S.W.3d 169 history Missouri in 1982. His criminal banc (noting this Court’s inherent 11 years. plead- includes four DWIs in He authority regulate to practice the of law 1997, ed to his first DWI in his administer discipline). 2004, 2006, second in third and he was arrested for his fourth in No- DWI II. Standard 2008, of Review
vember when he was found “passed out and intoxicated while behind the wheel Each disciplinary ultimately case stands parked vehicle.” His DWI was facts, on its own but the ABA Standards charged felony1 as a class D and resulted for Imposing Lawyer provides Sanctions in a three-year suspended sentence with guidance for appropriate discipline. In re supervised probation. probation Madison, 350, 282 S.W.3d require drug terms alcohol and testing and Downs, 363 S.W.2d forbid him from or consuming alco- 1963). Following the model laid He days hol. was ordered to serve 60 out in ABA Standard four factors are shock time in the county jail, during in determining considered the appropriate his shock time he was allowed to leave the (1) (2) discipline: violated; duty the the facility on work practice release to law. (3) lawyer’s state; mental potential time, During Stewart’s shock OCDC injury by actual caused mis- discipline moved this Court to Stewart’s conduct; (4) aggravating and mitigat- 5.21(c), pursuant law license Rule to under ing circumstances. which an pleaded guilty has to a felony by to discipline The guiding principles underlying requirement any Court without the oth- disciplinary decisions are as follows: er proceeding. OCDC recommends that purpose The pun- is not to Stewart’s license be without attorney, ish the but to protect pub- leave to reapply years, stayed for three lic integrity and maintain the of the three-year period probation purposes may Those twin terms that mirror those of his criminal directly, by be achieved both removing a probation. law, person from only previous discipline indirectly, by imposing a sanction which April volved an relating admonition to serves to deter other members diligence and Although communication. Bar engaging from in similar conduct. his fourth DWI was pending at the time of admonition, Razanas, apparently OCDC was un- 807-08 history aware of his criminal pend- and the noted, originally charged
1. He was with a class C 577.023. Unless otherwise statutory "aggra- because he was considered an all references are to RSMo by Supp.2010. vated previous offender” due to his amended three DWI convictions, but his second DWI later was information, reducing removed from the opportunity 2. Stewart declined the file a charge to a class D participate arguments. See sections brief or in oral Felony undoubtedly undermines the Conviction Was Such conduct III. Stewart’s 4-8.4(b) legal system Rule in the public’s Of confidence A Violation large. lawyer act A criminal honesty, adversely on the lawyer’s reflects
trustworthiness, lawyer fitness Felony Warrants IV. Stewart’s misconduct under professional considered Suspension 4-8.4(b). point Standards Rule determining injury such misconduct out that the necessary it is sanction in this harm clients or the can include *4 cases, disciplinary review the past similar system to the public legal also harm but rules, applicable and the standards. Nonprofessional mis profession. and the injurious just profes be conduct can Kazanas, that In it was noted an attor Conner, re 357 sional misconduct. a ney’s typically conviction for (1948). 270, 207 S.W.2d 495 Mo. 96 would merit disbarment. S.W.3d at in lawyer engages criminal con When a Frick, it was 808. And in In re stated that adversely or her duct that reflects on his in a non-profes acts committed “[s]ome in Rule 4- lawyer fitness as a violation of a capacity may sional indicate such lack of tar lawyer’s inevitably conduct other respect for the law and for members public image the of the nishes society may of war that disbarment Shunk, re as a whole. See In ranted.” S.W.2d 1993). 789, 791 Duncan, in In re But lawyers society, place In our hold a found was the presump that a responsibility as and special advisors attorney tive for an who been sanction had judicial in the law. admis- counselors felony. convicted S.W.2d lawyer felony] [committed sion that a 1992) (involving an attorney who grave consequence. Such is a matter pay had to file or federal income failed only brings the conduct taxes). honesty judgment question into public lawyers erodes confidence in Likewise, this Court’s Rule general. the courts in procedures which for suspend details Repeated by Id. criminal conduct an attor- activities, ing criminal attorneys following when it involves minor of- ney, only reflects that the serious nature fenses, legal indicates “indifference to obli- an justifies suspending conviction gation.” 2 Rule 4-8.4. Comment 5.21(a) practice. (providing from See Rule 4-8.4(b) by violated Rule shall cause to be plead- “this Court served ing guilty lawyer pleaded guilty under the influence of on” who “has occasions, separate alcohol on four includ- nolo contendere to or been found any ing pleading guilty felony” to a His con- ... “an order to show cause adversely why on as a not be lawyer duct reflects his fitness should lawyer injures reputation pending of the of law the final practice full legal disposition any disciplinary proceedings of the measure misconduct]”); by repetitive upon his injury caused conduct based see also [the 5.21(c) by that, captured (allowing cannot be fact merci- Rule causing activities fully, any injury he avoided commits certain criminal to “be damage. discipline by this Court without property conduct showed safety. requirement any proceeding”). difference to the law and to public
3H
Standards,
the ABA
Kazanas,
Under
disbarment
sanction. See
false In Stewart’s the aggravating fac- extortion, theft”). misappropriation, or tors are his DWI convictions. It is four a suspension “generally But is considered also concerning that he report failed to lawyer when a knowingly3 en- criminal conduct to OCDC when he was gages criminal conduct which does not diligence admonished for and communica- contain the elements listed in Standard tion issues in hand, 2009. On the other *5 seriously adversely 5.11 and that reflects mitigating factors include: his pri- limited on the practice.” fitness to ABA disciplinary remorse; history; his Standard 5.12. ongoing struggle with the disease of alco- holism and his commitment sobriety,
Moreover, aggravating and miti
shown by his participation in extensive
gating circumstances are
in se
considered
inpatient and outpatient treatment and his
an
lecting
appropriate discipline. See
attendance at numerous
Anony-
Alcoholics
(providing
Standard 9.1
aggra
mous meetings; and his full compliance
vating
mitigating
factors may be con
with the terms of his
probation.
criminal
sidered in
an
selecting
appropriate disci
But while this
recognizes
Court
Stewart’s
Madison,
pline);
the attorney’s regular attendance at Alco rules, standards, disciplinary the ABA Anonymous holics Anony Narcotics case, the facts in suspension is the meetings, mous his full compliance with his appropriate sanction for Stewart’s conduct. terms, probation proper and his handling felony His conviction represents an indif- affairs). factors, of client Mitigating how ference to the law that strong merits a ever, do not necessarily justify a disciplinary response. reduced convic- "knowledge” 3. The ABA objective purpose Standards define the conscious to accom- "conscious awareness the nature or attend- plish particular result." ant circumstances of the conduct but without lawyer who for a suspension templation as a adversely on his fitness tion reflects in criminal conduct. “knowingly” engages nature of his repetitive lawyer, and that he any suggestion defeats behavior suspension peri- for a Staying Stewart’s conduct with course of on his embarked with be inconsistent probation od of would the nature and knowledge of full less than involving felony previous cases this Court’s action. of his consequences multiple DWIs. convictions for Cf 2008) (Mo. banc No. SC89163 Hopkins, attorney convicted of class (disbarring an Stayed Suspension AV. incarcerated who was to be felony DWI C Not Warranted Is time); period for a substantial period for a should be Laskowski, No. SC86555 months but less than six of time no attorney without leave (suspending ABA Standard years. three more than a conviction years for three after reapply recom OCDC In Stewart’s 2.3. DWI).5 Like the attor- D of class three-year stayed suspension mends Laskowski, Hopkins neys at issue It period probation. a concurrent subjected him to felony charge granted has this Court out points for a sub- of incarceration possibility in three recent disci suspensions stayed good for- of time. Stewart’s period stantial lawyers who com involving orders plinary sentence does receiving a lenient tune offenses. In alcohol-related mitted severity of his conduct not diminish Frahm, No. SC89822 re assessing purpose *6 O’Sullivan, No. SC90235 in his case. McKeon, No. SC88868 Shunk, indefi- In six reapply leave to for nitely without who had been convict- months an finds, however, stay that a is This Court but who possession narcotics ed of In contrast to in this case. not warranted history, had not prior disciplinary had no single involved a McKeon affairs, client and had not mishandled driving while under misdemeanor count of property through persons harmed other while Frahm and And the influence. at 791. conduct. 847 S.W.2d his criminal multiple felony convic- involved O’Sullivan offense, of the assessing the seriousness single instances tions, involved those cases court noted: Further, the felo- misconduct. of criminal traffic has years drug illicit convicted In recent attorneys were nies which It proportions. epidemic reached of recklessness mental states involved the Stewart, users with addiction threatens howev- negligence.4 and criminal entire communities blighted but has er, felony arising out of was convicted For an death and violence. 11-year period, during DWI fully comprehends the nature con- ABA Standard 5.12’s implicates which Involving as Ground Intoxication counts conduct sentenced to two 4. Frahm was Attorney, battery. Against O'Sullivan aggravated Disciplinary Action of reckless Jones, (1992); counts of second de- pleaded guilty to three see also In re A.L.R.5A 874 assault, gree (six-month a class C (Ind.2000) suspen- N.E.2d 711 repeat DWI convictions warranted for sion that a is also notes 5. This Court attorney voluntarily submitted even where imposed in range of well within the sanctions sig- abuse and made for substance treatment driving felo- for alcohol-related other states recovery). progress in nificant Annotation, Veilleux, Danny Mis- R. nies. of his conduct to become a consequences erally should be reserved for those cir- felony drug trafficking, in participant which clients are cumstances harmed. consumer, morally repre- even as is
hensible.
Id.
Stewart’s conduct deserves similar cen-
sure as the conduct at issue in Skunk. damage wrought every in our state year by drunken drivers well-document- STATE of Missouri ex rel. Neal W. here, repeated ed and need not be save to HOLZUM, M.D., Relator, recognize that tragic impact its reaches nearly every community. into This Court v. attorneys keenly must insist that aware Nancy Schneider, The Honorable L. parameters places law on their Respondent. conduct, repeated disregard and Stewart’s for those boundaries simply cannot be ex- State of Missouri ex rel. Missouri BC cused. Emergency Physicians, LLP, Scott L. Landry, M.D., Poggemeier, and David
VI. Conclusion M.D., Relators, reasons, For foregoing v. suspended indefinitely from the Nancy Schneider, The Honorable L. apply law with no leave to for reinstate- Respondent. ment for six months after the mandate is issued this case. Nos. SC SC 91418. *7 Missouri, Supreme Court of PRICE, C.J., WOLFF, En Banc. BRECKENRIDGE, FISCHER and STITH, JJ., concur. July 2011. J.,
TEITELMAN, in separate concurs
opinion filed. TEITELMAN, B. Judge.
RICHARD
Driving while only poses intoxicated not also,
unacceptable risks to others but it is illustrates,
as Mr. Stewart’s case a serious said,
criminal offense. That I sepa- write
rately only goals pro- to note that the
tecting public maintaining the
tegrity are served
marginally by disciplining an attorney for
conduct that does not relate tangen-
tially to the representation of clients.
Disbarment and lengthy suspensions gen-