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State ex. rel. Justice for Ken v. Parks

Court of Appeals of Missouri, Eastern District, Fourth Division

March 12, 2019


          Appeal from the Circuit Court of Franklin County Honorable Darrell E. Missey



         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 are 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 S.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 Sheriffs Department requested that the Major Case Squad and the F.B.I, investigate the charges around Alien'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[1] 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 Allen 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.

         Prosecutor Parks notified Kathy that he reached plea agreements in which the defendants would be sentenced to prison terms often 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.[2] 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 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-l.7[3] 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.


         "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. banc 2013) (quoting C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 325 (Mo. banc 2000)). It is well-settled in Missouri that we do not review ...

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