APRIL, 1971

ADMINISTRATIVE LAW

STATE NURSING LICENSE REQUIREMENT OF "GOOD MORAL CHARACTER." As reported in the last issue of this Newsletter, a Legal Aid attorney has been representing a client who had been convicted in 1962 of a felony in Oklahoma, but was later pardoned by the governor of that state. After her release she had moved to Missouri and had taken training to become a licensed practical nurse. However, upon applying for the examination, she had been denied the right to take the examination, because of a ruling that a person who had been convicted of a felony did not meet the "good moral character" requirement. The Missouri Administrative Hearing Commission, before whom the case was brought, found that the State Nursing Board directive was invalid, and that although the applicant did not have good moral character in 1962, she had since that time rehabilitated herself through work and education. The Commissioner ordered that she be allowed to take the examination.

This ruling by the state Administrative Hearing Commission has now been affirmed in the Cole County Circuit Court. A letter from the state attorney general's office indicates that no further appeal will be taken by the state.

This decision, in addition to allowing the plaintiff to prove her moral character, also serves to set forth some guidelines as to what constitutes good moral character in Missouri.

CONSTITUTIONAL LAW

RIGHT TO TRIAL BY JURY IN MUNICIPAL COURT. A Kansas City case involving charges of obstructing an officer in the performance of his duty is now pending on appeal to the United States Supreme Court. Legal Aid counsel is attempting to obtain a jury trial for the defendant in municipal

court, through a writ of mandamus.

Kansas City's Code of General Ordinances provides that trials in municipal court shall be without a jury (Sec. 22.1); however, the offense of obstructing an officer is a misdemeanor under a state criminal statute (Sec. 557.210, RSMo) as well as the Kansas City ordinance (K.C. Code Sec. 26.35). Kansas City police officers are officers of the state as well as of the city (Sec. 84.710,RSMo), and therefore can choose to charge a defendant under either the ordinance or the state statute. If the defendant were charged under the state statute, he would be tried in magistrate court, where he is entitled to a jury trial upon request (Sec. 543.200, RSMO).

Legal Aid counsel argues that the ordinance denying a jury trial in municipal court is unconstitutional when applied to offenses which are alternatively prosecutable in magistrate court, because the municipal court defendant is thereby denied equal protection of the law (i.e., the jury trial he could have in magistrate court). Counsel also argues that the offense itself, because it was indictable and triable by a jury at common law, is to be regarded as a "serious" offense and thus comes within the jury trial guarantee of the Sixth Amendment as extended to the states under the due process clause of the Fourteenth Amendment.

Missouri courts, including the Supreme Court of Missouri en banc, have held against the defendant's right to trial by jury in this case, but the Supreme Court of Missouri has granted a stay of the issuance of its mandate pending perfection of the appeal to the United States Supreme Court.

CRIMINAL LAW

CONSTITUTIONAL SAFEGUARDS IN TAKING HANDWRITING SAMPLES. Two recent federal cases have raised the question of constitutional safeguards in the obtaining of handwriting samples from a suspect. The District

Court for the Western District of Missouri has ruled that samples of handwriting may not be taken unless there is probable cause to connect the person requested to provide the handwriting samples with a specific crime involving a questioned signature. The government agent requesting such samples, further, must inform the suspect of the agent's official position and of the case which he is investigating, and must warn the suspect of possible consequences should the samples he provides match those on the questioned document. The court has also ruled that the suspect may refuse to provide the handwriting samples, unless the agent has a court order making the requirement.

In these cases of first impression, the court has equated handwriting samples with fingerprints, which have recently been held to be protected by the Fourth Amendment, in Davis v. Mississippi, 394 U.S. 721 (1969). Appeals are being taken by the United States Attorney's office to the Eighth Circuit.

DRIVERS' LICENSE

NOTICE OF SUSPENSION NOT RECEIVED.

In a recent case in Independence, defendant was charged with operating a motor vehicle on a suspended driver's license. Prior to trial, Legal Aid counsel obtained a statement from the Motor Vehicle Department that the notice of suspension mailed to the defendant had not in fact been delivered, but had been returned to the Department by the post office, marked Addressee Unknown. Upon trial, the court dismissed the charges, reasoning that before one can be guilty of driving on a suspended license, he must have actual knowledge that his license has been suspended.

CONSUMER PROTECTION

PROPOSED F.T.C. REGULATION ON DOOR-TO-DOOR SALES. On March 22, 1971, a

representative of the Legal Aid and Defender Society of Greater Kansas City testified in Chicago before the Federal Trade Commission hearing on a proposed rule which would give the buyer a three-day period after signing a contract with a door-to-door salesman, in which he can cancel the contract for no reason. The Society's position was presented in a formal statement outlining reasons for our belief that this measure will not be of much protection to the average poor consumer, but may actually prejudice him later if he attempts to get the contract set aside by the courts.

"We have counseled or represented a number of clients who have entered into home repair installment sales contracts in which a security interest was retained by the seller in the buyer's home. In these cases the seller is, of course, required by

Regulation Z of the Truth-in-Lending Act to furnish the buyer with notice of his opportunity to rescind quite similar to that presently under consideration at this hearing," he stated. "Yet in no case has a client even been aware of this right to cancel, in spite of the fact that the client will often have a copy of the recission notice with him among the papers he brings to the Legal Aid lawyer when a dispute on the

contract arises.

"The explanation is that most poor people with limited educations and business experience either cannot, or more likely will not, read any piece of paper, the wording of which appears to be the least bit technical Likewise, in our experience with clients who have purchased consumer goods from door-to-door salesmen, only one was displeased enough with the sale to have wanted to cancel within three days of the sale. The rest did not become dissatisfied until several weeks or months later when they realized the exorbitant price they were paying for the shoddy goods they had purchased.

"Furthermore, although we have no empirical evidence that this is true, we believe that it will be much more difficult for a buyer who fails or chooses not to exercise his right to cancel to successfully rely upon defenses which might have existed from the time of his signing the contract. The courts will likely reason that since the buyer had an opportunity to cancel without cause for three full days and did not, then he should be held to a closer perusal of the contract and the entire transaction."

Our Society prefers regulations sponsored by the National Consumer Law Center, which would require a positive affirmation in writing at the seller's place of business by the buyer before a door-to-door sale becomes final.

Alternatively, our lawyers have suggested that the three-day cancellation period, if adopted, should start with the delivery of the goods, instead of at the time the contract is signed, and that the goods when delivered by conspicuously tagged, perhaps in red, with notices to the buyer of his right to cancel if he does so within three days of delivery.

HOUSING: PRIVATE

CLASS ACTION ALLEGES FRAUD BY "HOME REPAIRS" COMPANIES. In a class action recently filed in U.S. District Court (Stillwell et al. v. Investors Acceptance Corp. et al., No. 19161-4, W.D., Mo.), it is alleged that certain Pennsylvania, Ohio and Delaware corporations and their officers, employees and representatives have conspired with each other to perpetrate fraud against low-income homeowners in Kansas City. Fifteen Kansas City homeowners are the named plaintiffs in this suit.

These cases apparently all involve the same group of persons, using various names. The mode of operation has been to get the homeowner to contract for repairs needed on his home, for which the

homeowner executes a promissory note and a mortgage on his house as security for the note. The "home repairs" company immediately records both the note and the mortgage, and then disappears. Within a short time the note and the mortgage is transferred or assigned to one or more of the other named defendants. The repairs are never completed to the house, but the homeowner soon begins to receive demands for payments on the note, now held by a stranger to the original transaction.

Under traditional legal concepts, the holder of the note and mortgage, unless he was actually aware of the fraud when he purchased the note or mortgage, is entitled to collect the full amount of the note from the homeowner and if necessary to foreclose on the home, even though the homeowner has actually received nothing and is completely unable to enforce his side of the contract. The suit seeks penalties for violations of the Truth-in-Lending Act, damages for fraud, a permanent injunction, and a judgment declaring unconstitutional the Missouri foreclosure

statute.

HOUSING: PUBLIC

PUBLIC HOUSING EVICTION HEARING

DUE PROCESS REQUIREMENTS. In a recent public housing case, the authorities sought to evict a tenant after an administrative hearing in which the tenant was not represented by counsel, was not given time to prepare for the hearing, had no access to the records contained in her file, and was not allowed to confront and cross-examine those making complaints against her. After the hearing, which confirmed the eviction, the tenant obtained Legal Aid counsel.

In the meantime, the housing authority had proceeded in magistrate court by means of an unlawful detainer action, which Legal Aid counsel moved to dismiss for lack of the essentials of due process at the administrative hearing, relying on Escalera v. New York City Housing Authority, 425 F.2d 853 (1970). (The Escalera decision requires procedural due process for public housing tenants being evicted through administrative hearings, including adequate notice, access to material in the tenant's file, and right to confront and cross-examine the tenant's accusers.) The magistrate court in the present case ruled that it could not consider the constitutional issues raised by Legal Aid counsel; therefore Legal Aid lawyers filed a separate action in the county circuit court, in the form of a request for declaratory judgment and an application for an order staying the magistrate court from further action in the case until the declaratory judgment has been rendered. This matter is now pending decision in the circuit court.

IMMIGRATION

FOREIGN STUDENT'S SCHOOL FOLDS, LEAVING HIM SUBJECT TO IMMEDIATE

DEPORTATION. Ali F, an Iranian citizen, came to the United States to pursue technical studies, intending to enroll at the University of Kansas. He was persuaded instead to enroll at Midwest Business College in Raytown, Missouri. The director of that school assured Ali that the business college was approved for foreign students, and further assured the young man that he would prepare and forward the necessary papers to the immigration authorities. Returning to the campus after Christmas holidays, Ali found that the school no longer existed, having gone bankrupt. A friend in whom he confided made inquiries of the immigration authorities, and was told that no papers had been filed by the school authorities for Ali, and further that the school had never been approved for foreign students; therefore Ali was told to leave the country within 15 days, or he would be subject to deportation. However, he had no money with which to buy a ticket home, therefore Ali came to Legal Aid for assistance and representation at a deportation hearing. At the hearing, Legal Aid counsel brought out the unusual facts of the case, but the decision was nonetheless that he was subject to immediate deportation.

Counsel has now filed a notice of appeal and is preparing a written brief to be filed with the Board of Immigration Appeals, in an attempt to obtain some modification of the harshness of the original holding.

URBAN RENEWAL

ADJUSTMENT OF URBAN RENEWAL RELOCATION BENEFIT. Under an urban renewal project, a client's two-family home was condemned and she was paid its fair market value plus a "relocation benefit" intended to be sufficient to enable her to buy a replacement dwelling. Part of the client's income was derived from the rental of half of the 2-family home. The relocation benefit paid to her was the same amount allowed for a one-family home, and the proceeds from the condemenation were therefore insufficient for her to purchase another 2-family dwelling.

By the time the client came to Legal Aid for assistance, her original house had been demolished, and the regulation authorizing additional benefits for two-family dwellings, HUD Circular No. 1370.3, had apparently been supplanted by later regulations which made no mention of such additional benefits. For this reason, the local Land Clearance office denied her claim for relief.

However, upon insistence by Legal Aid counsel, the matter was submitted to Washington for final determination. The Department of Housing and Urban Development (HUD) found that 1370.3 has not been supplanted by later regulations but is still in effect. A circular from HUD will be issued to local offices making this correction.

Accordingly, the local Land Clearance office

63-378 O-71-9

has now informed the client that she will receive an additional $1,750.00, relocation benefits to adjust for the two-family home.

WELFARE

RETROACTIVE PAYMENT OF OLD AGE ASSISTANCE BENEFITS GRANTED UPON APPEAL. In May, 1969, a 69-year-old man without funds, suffering from a severe heart condition, was found by the Welfare caseworker to be ineligible for old age assistance because of "failure to prove eligibility." This finding was made because he was unable to provide the caseworker with adequate records of how he had spent approximately $3,000 received by him as part of an inheritance in 1966. After a hearing before a referee, the director in August, 1969, confirmed the finding of ineligibility at the time of rejection by the caseworker, but found that the claimant was now eligible "on the factor of need" and ordered payments to begin as of the date of the hearing before the referee (July 22, 1969).

Section 208.090 of the Missouri statutes as amended effective July 15, 1969, provides that if a welfare application has been denied and the applicant is found by the director to be eligible after his appeal is heard, payment of benefits shall be made as of the date the application was denied by the caseworker. In this case, however, the director refused to make payment of the benefits retroactive on the purported ground that the claimant failed to sustain his burden

of proof that he was qualified for public assistance benefits at the time his claim was rejected. Upon appeal, the sixteenth judicial circuit of Missouri (Div. 15, No. 732674, Marshall v. State Dept. of Public Health & Welfare) has ruled that the statute is clear and unambiguous, requiring the retroactive payn.ent of benefits to May, 1969, when the application was first denied by the caseworker.

CRIMINAL LAW

CORRECTION FROM PREVIOUS ISSUE: In the January, 1971, issue of the Newsletter, it was erroneously stated that the Missouri Supreme Court never acted upon a petition for writ of habeas corpus filed by defendant Russell (who had been found not guilty of the murder of one of two victims, but was still being held for trial of the murder of the second victim, despite the U.S. Supreme Court holding in Ashe v. Swenson, 397 U.S. 436, that such a second trial is unconstitutional as double jeopardy).

The Missouri Supreme Court did in fact rule upon defendant Russell's petition for habeas corpus. On October 21, 1970, the court en banc denied habeas corpus "for failure of petition to state a claim on which any relief may be granted." Seiler and Bardgett, JJ., would have granted the writ under Ashe v. Swenson.

(The two defendants were actually released on October 16, 1970, five days before the court made the above ruling, because the Jackson county prosecutor had dismissed all further charges.)