ARTICLES

The Missouri Constitution Convention Question asks voters to decide whether or not there should be a constitutional convention called to revise and amend the Missouri Constitution. Why the question now? It has been a requirement (since 1962) under the law that the question be asked of Missouri voters every 20 years. If passed, there would be a constitutional convention called in the state, with delegates selected to meet to revise and/or amend the Missouri Constitution. Since being a required question of voters since 1962, there has never been a “yes” vote that carried. Should the question receive a majority of “yes” votes, a constitutional convention will be called, and revisions or amendments could be made to the current Constitution. A “No” vote would mean that the current Constitution is kept as-is.  Notably, few rules govern such a convention. If called, the governor would ask for delegates to be sent to the convention. Delegates would be nominated by local parties in each state senate district, and the top two vote getters (presumably a Republican and Democrat) would be sent to the convention. There would also be fifteen non-partisan delegates selected. Members of the legislature and the governor, for example, would not be allowed to be delegates. Beyond that, there are few rules that guide how the convention would operate, and no assurance that it would work to amend or revise the current state constitution.

Missouri Amendment 5 seeks to change the Missouri Constitution to include the following provision: “There shall be established a Missouri Department of the National Guard in charge of the adjutant general appointed by and serving at the pleasure of the governor, by and with the advice and consent of the senate, who shall provide for the state militia, uphold the Constitution of the United States, uphold the Constitution of Missouri, protect the constitutional rights and civil liberties of Missourians, and provide other defense and security mechanisms as may be required.” The Amendment seeks to move the Missouri National guard out of the department of public safety, where its been since 1972, and make it a stand-alone department, with a general appointed by the governor and approved by the state senate. The department would be within the executive branch of the state government. The language in the proposed amendment seeks only to create the agency. The language does not give any direction for how the department will operate. For the full text of the proposed amendment, visit: https://house.mo.gov/billtracking/bills221/hlrbillspdf/5096H.01T.pdf

The proposed amendment that is Missouri Amendment 4 seeks to change the Missouri Constitution to include the following provision: “Notwithstanding the foregoing prohibitions, before December 31, 2026, the general assembly may by law increase minimum funding for a police force established by a state board of police commissioners to ensure such police force has additional resources to serve its communities.” Why the proposed change? As is, the Missouri Constitution prohibits the state legislature from requiring a city to increase funding for certain activities and services, unless the state provides additional money for it. Due to a recent disagreement between Missouri lawmakers and the Mayor of Kansas City, Missouri, lawmakers are now seeking a constitutional amendment that allows them to increase minimum funding for police departments that are controlled by a state board of police commissioners. As is shown in the proposed language, the added section does not include a mandate that any increase in police funding would require the legislature to also include state funds to fund any newly-required minimum funding. Notably, the only city police force in the State of Missouri currently controlled by a state board of police commissioners is Kansas City, Missouri’s police force. Also, there is no maximum percentage of a budget that could be required of a city to set aside to police funding. This allows the legislature to set a “floor” of required funding for police, but also allows discretion in setting the minimum amount of required spending (i.e., it could be any amount the legislature deems appropriate, up to and exceeding 100% of the budget).  A “Yes” vote would allow the Missouri legislature to increase minimum funding for such a police force without input or a vote from the city itself. A “No” vote will maintain the status quo, which does not allow for such action by the Missouri legislature. A full text of the section of the Missouri Constitution, including the existing language and proposed changes, can be found here: https://www.senate.mo.gov/22info/pdf-bill/tat

The proposed amendment that is Missouri Amendment 3 seeks to change the Missouri Constitution to allow the private use and possession of marijuana by Missouri citizens. The age limit is, like alcohol, 21 years of age or older. The changes include updates to the medical marijuana law (including who can prescribe it), legalizes adult recreational use of marijuana, and allows for expungement of criminal records for most marijuana offenses. Below is a run-down of more specific changes in the proposed Amendment. The Amendment: -Allows nurse practitioners, instead of just MO physicians, to prescribe medical marijuana; -Expands the types of products that can be prescribed for medical marijuana use; -Inserts additional definitions to the section, including definitions for types of marijuana products (such as a pre-roll) and medical marijuana facilities; -Creates a lottery system for medical marijuana facility certification/licensing in situations where there are more applicants than allowed certifications/ licenses; -Allows certain records (that are not proprietary business records) to be subject to Missouri Sunshine Law for citizens to obtain governmental records regarding, for example, licensing of medical marijuana facilities; -Limits medical marijuana cards to a three-year validity period (rather than an annual renewal period), at which point they may be renewed through a physician or nurse practitioner; - Limits the ability of law enforcement to obtain search warrants of individuals related to the production, possession, transportation or storage of marijuana; -Legalizes marijuana for recreational purposes; -Includes an express provision that states that the purpose is to ensure that marijuana is regulated in a way that keeps money and drugs from illicit markets and keeps it out of the hands of kids under the age of 21; -Includes provisions regulating, and allowing for regulation of, the cultivation and sale of marijuana products; -Includes provisions on regulating licenses for marijuana facilities; -Creates a new tax fund (“Veterans, Health, and Community Reinvestment Fund) for the tax revenue received from sales of recreational marijuana; -Limits law enforcement’s ability to search citizens’ property for marijuana use alone; -Allows for possession of marijuana of three (3) ounces or less of dried, unprocessed marijuana or its equivalent, and allows for the growing of plants (up to six flowering plants, six non-flowering plants, and six clones) if you are licensed to grow; -Allows for citizens who are in jail and would’ve been not guilty of any offense under the new law, guilty of a lesser offense under the new law, or who are serving a sentence for offenses (excluding, for example, distribution to a minor or a violent offense) related to marijuana that are less than a D felony, to petition the court for release and expungement of the offense; -Terminates parole/probation and expunges the records of citizens who are on parole or probation for marijuana-related offenses (with the same exceptions as noted above); -Expunges the records of citizens who have previously been convicted or pled guilty to marijuana-related offenses. The effect of the expungement, as stated in the Amendment, is to “restore such person to the status the person occupied” prior to the arrest, conviction, or plea of guilty as if such event never took place. Also, the Amendment specifically states that citizens cannot be denied public assistance, their rights as stated by the Missouri Constitution, or parental custody rights (unless a parent’s behavior creates an “unreasonable danger”) for legal marijuana use alone. The Amendment would become effective thirty (30) days after the election of November 8, 2022. In other words, it would become effective on December 8, 2022. For further information, visit https://www.sos.mo.gov/elections/petitions/2022BallotMeasures  The precise wording of the proposed amendment can be found here: https://www.sos.mo.gov/CMSImages/Elections/Petitions/2022-059.pdf

The first Amendment that is on the ballot for this year’s November election in Missouri would be a change that affects the Missouri Treasurer’s flexibility on investments funds received by the State of Missouri. The full text of the Amendment can be accessed here: https://house.mo.gov/billtracking/bills211/hlrbillspdf/0587H.03T.pdf The current language of the section to be amended can be found here: https://revisor.mo.gov/main/OneSection.aspx?section=IV++++15&bid=31829&constit=y What is the proposed change? This Missouri Constitutional Amendment seeks to allow the State Treasurer to invest Missouri State funds in municipal securities (which fund things like road projects for municipalities) and potentially more investment options in the future. The Amendment would leave open the possibility of more investment options for the Treasurer in the future, but it does not specify what type of options those would be. A “YES” vote would amendment the Missouri Constitution to enact the change. A “NO” vote would keep the status quo, which allows for investments by the Treasurer, but without the flexibility the Amendment proposes to create. For further information, visit https://www.sos.mo.gov/elections

In order to transfer real estate, whether it’s a sale, distribution out of a probate estate, or a gift to a loved one, the person transferring the land must sign a deed. There are several types of deeds – general warranty, special warranty, and quit claim being the most common – that transfer property. A deed is usually only a few pages long and forms can be taken off the internet to fill out, print, sign, and record. But watch out. It is tempting to view deeds as simple, easy-to-do forms that can be done without an attorney’s help (and those corresponding fees). However, real estate transfers and the deeds that make them possible are read carefully in courts. This means that any mistake in drafting or filling out a deed can have catastrophic and unintended consequences. More importantly, trying to save a little now and filling out your own deed work can be costly if that deed creates litigation that lands you in court. The bottom line is that hiring an attorney for deed work is important and can avoid bad outcomes in land ownership that no one wanted, but that the law requires. The team at Breeze Westhoff can assist you in advising on the best way to transfer real estate to avoid litigation and will draft up the deed work for you to meet your goals. Contact us today to get started.

Every American hears it at some point in their life – innocent until proven guilty. But often times the criminal justice system makes it feel like criminal defendants have their innocence to prove. The system, from initial investigations to the feeling of a courtroom when making a routine court appearance, can make it feel like the prosecution is waiting to be told why you are innocent, and what evidence you have to prove it. This gets it all wrong. It is a cornerstone of our system – with all of the freedoms everyone enjoys – that prosecutors, representing the government, are required to prove every criminal defendant guilty beyond a reasonable doubt. No matter the crime that is charged, the evidence must be produced by the prosecutors that show why, and how, a defendant is guilty. This should be a difficult task to make sure innocent defendants don’t get wrongfully convicted and have their freedoms taken from them. Unfortunately, not having a criminal defense attorney involved can make the prosecutor’s job easier, and make it seem like the government needs to be convinced of your innocence. If you’ve been charged with a crime, the team at Breeze Westhoff will stand up for your rights and ensure that prosecutors and the system they represent seek justice and not a cheap win.

Probate can be treated as a four-letter word. Common misconceptions include the state taking all of your loved one’s property, losing money in the process, and losing property in the process. While it can be a good thing to avoid probate for a loved one’s estate, probate is sometimes seen as a mysterious process giving rise to stress and misunderstanding. So what is it all about? What is Probate? Probate is the court process that allows a loved one’s estate – whether real estate, titled personal property (bank accounts, cars, boats, trailers, etc.), and non-titled property (guns, jewelry, tools, furniture etc.) – to pass to the heirs, whether named in a will or designated in a statute. I have a loved one’s will. Do I need probate? Despite what some may think, a will does not avoid probate. A will is a document that shows what a loved one’s wishes are for his or her property. The will must still be probated in order to effectively operate to pass the property on as the loved one wished.  What if my loved one didn’t have a will? If there is no will, the property still gets probated. Unlike a will, which may say non-family members or charities get certain property, if your loved one had no will, statutes say who gets the property and the court is bound by the statute. What should I expect in probate? Probate is a legal process through court that takes some time and is meant to make sure a loved one’s property goes to the right people. In probate, creditors of the loved one, such as a hospital or credit card company, are given a chance to make a claim in the estate. The process typically lasts over 6 months. Once the probate estate is finalized and ready to distribute, the court will review the distribution and order the property to go where it needs to go, and order the estate be closed. If you have questions about probate or need a probate lawyer, please contact Breeze Westhoff LC.

If you or a loved one has been in jail – whether before or after conviction – you may have noticed that jailhouse phone calls are out of the ordinary. Why? For one, there is a fee for the call. There’s also a disclaimer before the call notifying you that it’s being recorded. What’s the risk of these calls being recorded? In short, it’s your freedom. It may seem intrusive, but it’s common to record phone calls of inmates. These calls can and may very well be used in trial. So be careful what you say. Any comment may be played repeatedly at trial or a court hearing to affect your rights and potentially be key evidence to put you or a loved one behind bars. The less you say on a jailhouse call, the better. So what’s the best approach to jailhouse calls? The best approach is to avoid making any calls. While this may be hard, it could be the difference between freedom or jail. Even communications between you and a loved one made at the jail in person can be recorded. If you need to speak with someone while in jail on a phone, act like someone else (other than the person on the other end of the line) is listening. It’s likely because they are.  If you have a criminal issue and are in need of legal help, please contact our office today.