Court of Appeals of Missouri, Eastern District, Fourth Division
STATE OF MISSOURI EX REL., JUSTICE FOR KEN, KATHY ALLEN, and VINCENT BANDERMANN, Appellants,
ROBERT E. PARKS, and FRANKLIN COUNTY PROSECUTING ATTORNEY'S OFFICE, Respondents.
from the Circuit Court of Franklin County Honorable Darrell
S. ODENWALD, JUDGE
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.
and Procedural History
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).
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.
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
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.
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
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 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.
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 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.
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 ...