 

Su the Missouri Court of Appeals
astern District

DIVISION FOUR
STATE OF MISSOURI EX REL., JUSTICE  ) No, ED106758
FOR KEN, KATHY ALLEN, and )
VINCENT BANDERMANN, )
)
Appellants, ) Appeal from the Circuit Court
) of Franklin County
vs. )
)
ROBERT E. PARKS, ) Honorable Darrell E. Missey
)
and )
)
FRANKLIN COUNTY PROSECUTING )
ATTORNEY’S OFFICE, )
)
Respondents. ) FILED: March 12, 2019

Introduction

Justice for Ken, Kathy Allen, and Vincent Bandermann (“Appellants”) appeal from the
trial court’s dismissal of a petition for a writ of mandamus seeking to compel Prosecuting
Attorney Robert Parks (“Prosecutor Parks’’) to recuse himself and appoint a special prosecutor.
Appellants argue that the trial court erred in dismissing the petition for several reasons.
However, because Appellants’ claims ate inextricably tied to the alleged improper conduct of
Prosecutor Parks, his retirement from his position as the Prosecutor for Franklin County renders

the appeal moot. Accordingly, we dismiss the appeal.

 
Factual and Procedural History

 

We take as true the factual allegations in the petition for a writ of mandamus, reprised
below. See State ex rel. Cmty, Treatment, Inc. v. Mo. Comm’n on Human Rights, 561 $.W.3d
107, 111 (Mo. App. W.D., 2018).

The State charged three defendants with second-degree murder, first-degree burglary, and
receiving stolen property in connection with the death of Kenneth Allen, Jr. (‘Allen’). Prior to
his death in 2016, Allen had served as a treatment provider for the Franklin County Drug Court.
After his contract was terminated, Allen brought a wrongful termination suit in federal court
against the Franklin County Assistant Prosecuting Attorney, Jennifer Bartlett. Because Allen’s
suit—which has since been dismissed---remained pending when he died, the Franklin County
Sheriff's Department requested that the Major Case Squad and the F.B.E. investigate the charges
around Allen’s death in order to avoid the appearance of a conflict of interest, The investigation
revealed that the cause of Allen’s death was homicide by asphyxiation and neck compression.

Allen’s daughter, Kathy Allen (“Kathy”), is Allen’s victim representative under RSMo
Chapter 595! and a member of Justice for Ken—an unincorporated organization created to
address issues surrounding Allen’s murder. Prosecutor Parks told Allen’s family that the
defendants had planned together to kill Allen in retaliation for a prior incident in which Allen
took the brother of one of the defendants to the hospital following a drug overdose. Prosecutor
Parks misstated the cause of death by indicating to Kathy that Ailen had no ligature marks or
bruising around his neck. Prosecutor Parks further misinformed Kathy that the defendants would

have to serve eighty-five percent of their prison sentences before becoming eligible for parole.

 

1 All Chapter references are to RSMo (2016).

 
Prosecutor Parks notified Kathy that he reached plea agreements in which the defendants
would be sentenced to prison terms of ten years for burglary and seven years for involuntary
manslaughter, reduced from second-degree murder, with the charge for receiving stolen property
to be dismissed. ‘Two of the defendants consented to that plea agreement, but the trial court
rejected their guilty pleas because the agreements were too lenient. Prosecutor Parks negotiated
a second plea agreement with those defendants, and the trial court again rejected the agreements
for being too lenient. Following the trial court’s second rejection of the plea agreements,
Prosecutor Parks stated his intention to dismiss all counts against the defendants, leaving only
the charge of involuntary manslaughter.

Kathy, Justice for Ken, and Vincent Banderman—a taxpayer, voter, and resident of
Franklin County—filed a petition for a writ of mandamus requesting that the trial court order
Prosecutor Parks recuse himself from prosecuting the defendants charged with Allen’s homicide,
Prosecutor Parks and the Franklin County Prosecuting Attorney’s Office (collectively
“Respondents”) moved to dismiss the writ petition for failure to state a claim upon which relief
could be granted. The parties prepared briefs and argued their positions at a hearing before the
trial court. No party sought an evidentiary hearing. The trial court granted the motion and
dismissed Appellants’ writ petition, finding that a suit by a victim against an assistant prosecutor
does not create a conflict of interest preventing the prosecuting attorney’s office from
prosecuting crimes against that victim.? The trial court further recognized that “[i]f the
allegations in the [p]etition are true, this Court agrees that the conduct of the [Prosecutor Parks]

is despicable” but that the decision to disqualify a prosecutor “must be based upon an actual

 

* The trial court also sua sponte held that any claims by Justice for Ken lacked standing and were dismissed on that
basis. The trial court further found that the remaining Appellants’ standing was “dubious as to whether every
member of the public has standing to challenge the actions of prosecuting attorneys” but proceeded with the analysis
as if they had standing.

 
conflict of interest . . . [not] because he [isn’t] doing a good job[.]” (internal citations omitted).
The trial court concluded that the writ petition lacked a legal basis on which to disqualify

Prosecutor Parks.

Points on Appeal

Appellants raise three points on appeal from the trial court’s judgment. In Point One,
Appellants argue the trial court erred in finding the petition for the writ of mandamus contained
no basis to disqualify Prosecutor Parks because Prosecutor Parks had a duty under Professional
Conduct Rule 4-1.7° to recuse himself in order to avoid the appearance of a conflict of interest.
In Point Two, Appellants contend the trial court erred in dismissing the writ petition without an
evidentiary hearing. In Point Three, Appellants claim the trial court erred in holding Justice for
Ken lacked standing to bring the writ petition because unincorporated associations have the
capacity to bring suit.

Mootness

“A threshold question in any appellate review of a controversy is the mootness of the
controversy.” Kinsky v. Steiger, 109 S.W.3d 194, 195 (Mo. App. E.D. 2003). Here,
Respondents assert Appellants’ appeal is moot and should be dismissed. “A cause of action is
moot when the question presented for decision seeks a judgment over some matter which, if the
judgment was rendered, would not have any practical effect upon any then existing controversy.’
Humane Soc’y of U.S. v. State, 405 S.W.3d 532, 535 (Mo. bane 2013) (quoting C.C. Dillon Co.
vy. City of Eureka, 12 S.W. 3d 322, 325 (Mo. banc 2600)). It is well-settled in Missouri that we
do not review moot cases. Kinsky, 109 S.W.3d at 195. When an event occurs that renders the

decision moot, we will dismiss the appeal. Humane Soc’y, 405 S.W.3d at 535,

 

3 All Rule references are to Mo. Sup. Ct. R. (2016) unless otherwise indicated.

4

>

 
We must dismiss moot appeals except “in two narrow situations: [1] when the case
becomes moot after submission and argument, and [2] when the issue raised has general public
- interest and importance and is likely to recur and will otherwise evade appeliate review.” In re
J.T.S., 462 S.W.3d 475, 478 (Mo. App. W.D. 2015) (quoting In re J.L.R., 257 8.W.3d 163, 166
(Mo. App. W.D. 2008)). If an exception to the mootness doctrine applies, our dismissal of a

moot appeal becomes discretionary. T.D.H. vy. O’Connell, 258 S.W.3d 850, 851 (Mo. App. E.D.

 

2008),

Appellants concede this appeal is moot. Appellants appeared for oral argument on
February 26, 2019. Prosecutor Parks retired from his position as Prosecuting Attorney in
Franklin County as of January 1, 2019, prior to argument before this Court in February 2019.
Prosecutor Parks’s retirement—with the resulting removal of Prosecutor Parks from the Franklin
County Prosecuting Attorney’s Office and from the case of the remaining defendant*—-is an
intervening event that has ended the live controversy between Appellants and Prosecutor Parks,
Thus, reversal here would afford Appellants no relief. We recognize too that other remedies are
not within our purview, including the election of prosecutors by their constituents and the
regulation of attorneys’ professional conduct by the Supreme Court of Missouri.

Nevertheless, Appellants urge us to exercise our discretion to review the case under the
public interest exception.> We construe the public interest exception “very narrow[ly.]” City of
Manchester v. Ryan, 180 S.W.3d 19, 22 (Mo. App. E.D. 2005). Initially, the appeal must present
a matter of general public interest and importance. In re J.T.S., 462 S8.W.3d at 478. Appellants

contend this criterion is met because the appeal asks whether crime victims and citizens have a

 

4 Two defendants’ cases have final judgments from which the time to appeal has expired.
> We note that the first mootness exception does not apply because the case became moot before argument. In re
L.T.S., 462 S.W.3d at 479 n.3 (internal citation omitted),

 
legal remedy, through a writ of mandamus, to compel a prosecutor to engage in a particular
course of conduct. Specifically, here, Appellants seek to enforce a prosecutor’s duty to
disqualify himself from a case under the Rules of Professional Conduct governing conflicts of
interest.

While the rights and obligations among victims, citizens, and prosecutors generally
concern a matter of public interest and importance, we are not persuaded that the issue alleged
here “is likely to recur and will otherwise evade appellate review” such that we should disregard
the clear-cut mootness of this appeal. In re J.T.S., 462 S.W.3d at 478. The paramount focus of
Appellants’ appeal and sought-after relief is the conduct of an individual prosecutor who is no
longer in office nor involved in the underlying criminal cases. While Appellants advocate that a
ruling with regard to Prosecutor Parks may serve as guidance for other prosecutors, the trial
court’s judgment reflects that Prosecutor Parks’s conduct stood as an outlier, beyond the pale,
and the Appellants’ desired remedy of Prosecutor Parks removing himself from the cases has
been achieved. Although we discern the egregiousness of Prosecutor Parks’s alleged
misconduct—isstating the law and facts to the family of a homicide victim and ultimately
failing to hold the defendants accountable—we generally decline to apply a mootness exception
when the primary relief sought is limited to a single individual. See e.g., Broyles v. Dep’t of
Cmty. Health & Env’t of St. Charles Cty, 456 $.W.3d 517, 520 (Mo. App. E.D. 2015) (declining
to apply the public interest mootness exception to a euthanasia appeal pertaining to one specific
animal); Carlisle v. Carlisle, 277 S.W.3d 801, 802 (Mo. App. E.D. 2009) (noting that courts
decline to apply the public interest mootness exception to sufficiency-of-the-evidence challenges
to individual Adult Abuse Act protective orders); Ryan, 180 S.W.3d at 23 (declining to apply the

public interest mootness exception where an alderman’s reelection defeat rendered his suit over

 
the city’s closed-meetings policy moot), Further, in the event that a future victim asserts a claim

alleging impropriety by a different prosecutor, we have no reason to expect the issue would be

incapable of appellate review. See Ryan, 180 S.W.3d at 22; In re J.T.S., 462 S.W.3d at 478.

Therefore, because reversal would give Appellants no remedy and the particular facts of

Prosecutor Parks’s conduct do not justify an exception to mootness, we dismiss the appeal.
Conclusion

The appeal is dismissed as moot.

KURT S. ODENWALD, Judge

Lawrence E, Mooney, P.J., concurs.
James M. Dowd, J., concurs.

 
