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Thursday, February 16, 2017

Missouri thugs violated state law and my wife's Fourth Amendment rights by ordering her arrest for "failure to appear" when she had received no notice from court


Carol Tovich Shuler
How could my wife, Carol, be arrested in Missouri for failure to appear when the case docket shows she was not notified of a court appearance? The answer is, "She couldn't." But she was, and that is a violation of Missouri law. It also represents a grotesque violation of Carol's Fourth Amendment right to be free from unreasonable searches and seizures. (The U.S. Supreme Court has found that an arrest is the "quintessential example of a seizure of the person.")

If I have a say about it, someone is going to pay dearly for this abuse of Carol's constitutional rights. It's bad enough that the charges against Carol -- assault on a law enforcement officer and trespass -- are bogus and not supported by probable cause, as we will show in upcoming posts. But as a simple procedural matter, her arrest runs contrary to Missouri law.

How do we know? Please follow us for a brief explanation of the law that governs such issues.

It might seem strange to you, as it does to me, that courts could be allowed to send a summons -- for which you are subject to arrest if you fail to appear -- via first-class mail. You might think that a document that carries with it the potential loss of freedom would require some form of personal service, via certified mail, a process service, or a "peace officer." But you (and I) would be wrong. Missouri allows service of a summons via first-class mail, per Mo. Sup. Ct. Rule 21.08. Here's how it reads, in pertinent part:

A summons may be served by:
(a) The clerk mailing it to defendant's last known address by first class mail; or
(b) An officer in the manner provided in Rule 54.13 or Rule 54.14.

If the defendant fails to appear in response to a summons and upon a finding of probable cause that the defendant has committed a misdemeanor, the court may issue an arrest warrant.

Rules 54.13 and 54.14 refer to personal service in the state and outside the state, respectively. The highlighted section notes that an individual is subject to arrest if she "fails to appear in response to a summons." But Carol did not fail to appear "in response to a summons." The court's own records, as found at case.net (Case number 1631-CR07731), show she did not receive a summons. Last time I checked, it's hard to respond to something you did not receive, especially when you have no reason to believe it even exists.

To summarize, a summons in Missouri may be served by first-class mail or personal service. But if the court opts to serve by first-class mail, that comes with an extra burden: It must receive acknowledgement that the summons actually was received. If that doesn't happen, the court must turn to one of the other methods allowed by law, and that means some form of personal service.

In other words, a subject who does not acknowledge receipt of a summons -- and in Carol's case, she did not acknowledge because she did not receive the summons -- cannot be subject to arrest. The court must try again, via personal service, to make sure the summons actually is received. The relevant law can be found at Mo. Sup. Ct. Rule 54.16, which reads in pertinent part:

Acknowledgment of Service By Mail

Service of the summons and petition upon a resident or nonresident defendant of any class referred to in Rule 54.13(b)(1)(2) or (3) may be made by mailing a copy of the summons and petition by first class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Civil Procedure Form 4B or Civil Procedure Form 4C and a return envelope, postage prepaid addressed to the sender. If no acknowledgment of service under this Rule 54.16 is completed and returned to the sender, service of the summons and petition shall be made as otherwise provided by statute or rule. Unless good cause is shown for not doing so, the court shall order the payment of costs of service on the person served if such person does not complete and return within thirty days after mailing, the notice and acknowledgment of receipt of summons.

We call your attention to the highlighted section above, which states in real clear English that if the subject does not return acknowledgement, the court cannot haul off and arrest her; it must attempt a form of personal service that is allowed by law.

What does this tell us? Carol was the victim of a wrongful arrest and imprisonment. Her constitutional rights were trampled. And it adds to the evidence that charges were brought against her for an unlawful reason -- probably in retaliation for my reporting about Trump attorney general Jeff Sessions and his status as a closeted homosexual.

Who ordered Carol's unlawful arrest? We aren't certain at the moment, but we have a real strong suspect, maybe more than one. I'm more than a little fed up with the abuse we've received from courts and law enforcement, and I am determined to see that the responsible person (or persons) is held accountable for this one.

26 comments:

Anonymous said...

Carol's arrest smelled bad from the moment I first heard about it. It smells worse now.

Anonymous said...

Pretty interesting research on the law there, LS. I've been wondering how an arrest could be made under such circumstances. Now, we know it can't be made.

Anonymous said...

It's comforting to know that judges/lawyers/prosecutors/cops are as corrupt in Missouri as they are in Alabama.

legalschnauzer said...

Oh, there is no question they, in general, are every bit as corrupt as their brethren in Alabama. But I should note that, in this case (so far), I'm not sure a judge has acted corruptly. It's still not clear who ordered Carol's arrest for "failure to appear." Still looking into that, but it wasn't necessarily a judge.

Anonymous said...

I'm guessing the county clerk can sign an arrest warrant in Missouri?

legalschnauzer said...

Yes, my research indicates that is the case.

Anonymous said...

What research Roger?

Anonymous said...

You know, due process and equal protection seem like pretty simple concepts. Hard to figure why so many connected to the "justice system" can't seem to figure them out.

legalschnauzer said...

You make a profound point, @9:51. I've been writing about this for almost 10 years now, and I'm convinced a big problem is that our system has no oversight, other than from the legal tribe. It's lawyers overseeing lawyers, judges overseeing judges. And just like members of the Trump admin and the modern Republican party, these people are more loyal to their tribe than they are to their country.

We essentially have an honor system run by dishonorable people. We need citizen oversight, at the state and federal level, in the worst way. This system has been left to people with law degrees, and they have proven they don't have the integrity for the job. I think law school tends to attract a high percentage of individuals with dubious ethics, and if they are ethically shaky, it only gets worse once they have a bar card.

Anonymous said...

Does Cliff Sims still have his panties all wound up? Sounded yesterday like he was about to lose it. Maybe he really is a raging drunk, per Clifton Walker.

legalschnauzer said...

I don't know what Cliff Sims' status is today. I sent Facebook PM yesterday, asking if he sent the nutty comment yesterday. Have received no reply. I wouldn't believe anything Clifton Walker says.

Anonymous said...

Wasn't Cliff Sims essentially Mike Hubbard's mouthpiece -- a journalism whore, if you will -- at Yellowhammer News?

legalschnauzer said...

I've read that in several places. Also read that Sims and YH were tied to Dax Swatek. Not sure of the truth on that, but I doubt many individuals see YH as a legit news source.

If Sims is tied to Hubbard and/or Swatek -- and we know he is tied to Sessions -- that raises real questions about his ethics and abilities. Of course, that would make him a perfect fit for Trump admin.

legalschnauzer said...

@9:49 --

Research on what subject? Not sure what you are referring to.

legalschnauzer said...

Speaking of Cliff Sims I just received this comment on yesterday's Jeff Sessions post from someone claiming to represent Mr. Sims. I can only assume this is someone's idea of a "clever" joke:

Anonymous [ERROR] said...
Mr. Shuler, Cliff Sims asked me to contact you to resolve a matter about which I think we can find common ground. Cliff contacted you yesterday asking that his name be removed from any posts on your web site. It seems one of your community has been posting as "Cliff Sims" or "Clifford", but this is not Cliff Sims. Continuing to allow these posts or whatever they are is damaging Cliff's reputation, and could be the basis for legal action against you.

I have asked Don McGahn's assistant to draft a letter to you indicating our position
on this. Without question the following four individuals possess rights of publicity under law and you are forbidden from profiting from their likenesses without their permission:


1. Clifford "Cliff" Sims
2. Thomas Bryant "Tom" Cotton
3. Jefferson Beauregard "Jeff" Sessions III
4. Luther Johnson Strange III


We would like to resolve this today in good faith without
resorting to other actions that will see your blog removed from Google and you yourself inconvenienced in various ways. Remove the content before 2:00 AM EST Friday.

Sincerely,

legalschnauzer said...

This is my response to "Cliff Sims' representative":


Blogger legalschnauzer said...

Error:

I have no idea if this is a real inquiry. I suspect it is not. Not aware of anyone with legit legal credentials who would send a threat/request via anonymous comment. No content is being removed, that is for sure. If you have real business to discuss, I suggest you send me an e-mail under your real name. Otherwise, I can only assume you are a prankster and a fraud.

February 16, 2017 at 10:42 AM Delete

e.a.f. said...

I sense a theme here. The Missouri police don`t know how to read. If they do read, they don`t care what they read. this will continue regardless of what the law says. They do it because they can and leave you fighting after the fact.

Don`t they have oversight boards in the U.S.A for police departments. In British Columbia we have a provincial oversight board which investigates any act of `violence` involving a police officer and a citizen. then a report is issued. if warranted it then goes to Crown Counsel (prosecutor). Now many of us don`t like the results of the findings, but that is a whole other story, there has to be a report and a conclusion. It is by an independent arm, well as independent as you can get in a government.

Anonymous said...

You were both anticipating the possibility of charges against Carol. You even spoke to a lawyer you gave you cautionary advice on the subject, or so you have published here.

You regularly review case.net for legal actions pertaining to to two of you. I don't believe you didn't see this as a possibility or missed the reality when it appeared.

It was your obligation, as someone who is facing legal action..and filing them to provide a means of mail forwarding. To do otherwise is an attempt to evade, and you are why skip tracers exist.

It is very likely that alternative notice was indeed established through some other means, and that you are being dishonest about it.

legalschnauzer said...

@2:03 --

You are so full of feces it must be coming out of every orifice. You've written a lot of ignorant comments, but this takes the case. We had no reason to regularly review case.net, and no obligation to do so. And we weren't facing legal action. You don't even do a good job of faking the law. What is it now, we have "fake news" and "fake law"? What a joke, and you long ago ceased being funny.

You are completely brain dead and a fraud, so don't look to see anymore of your absurd comments appearing it.

Anonymous said...

I'm pretty sure Carol would qualify for a public defender.

Here is a problem, which that attorney can explain, that will hurt Carol's defense of lack of proper notice.

If I have dates correct, She was a party to active litigation in Missouri at the time the arrest warrant was issued to your last known address on file with the court.

Even though it was a different case, failure to correct the address means she was "using" the address. Failure to return the acknowledgement may not be excused because of that - because it was not beyond her control and she failed an obligation to the court.

Another problem you may face is if personal service was attempted and Carol or you refused to hear the writ or are pretending you did not.

I noticed that the court found facts sufficient to issue the warrant for failure to appear. This happened long after the notice was returned as undeliverable. This leads one to consider that Carol was either considered to be fugitive, or that notice was attempted in some other fashion. You will understand that if an officer shows up and offers to give the summons to her or read it, that's enough.

There may be other facts the court found, such as, the mail was actually delivered to her current address on file with litigation of which she had notice and/or to which she was a party.

Is Carol still in custody, or was she released?

legalschnauzer said...

@2:30 --

Or "Mr. Apologist." Why don't you quit before you look even more ridiculous than you already do. First, you have your dates wrong. Carol was not a party to any Missouri litigation at the time arrest warrant was issued. She didn't fail to return acknowledgement because she didn't receive anything regarding the court appearance. Even the court doesn't say any personal service was attempted. Look up the record. "Refused to hear the writ"? What on earth are you talking about? You are so off base you aren't even in the right zip code. It seems you simply cannot read or do research. What game are you playing?

If you want to comment further on this case, contact me via e-mail or phone. Give me your name, and I'm happy to talk. I know you won't do that because you are a con artist. Good luck and get a life.

Anonymous said...

If you don't know what refused to hear the writ means, you haven't read the law.

If she was in your room, the officer came by, noticed you there, offered to read or deliver the summons and you pretended you weren't there, she is served.

That's how that works.

However, it may be the court found other facts sufficient to justify issuing of a warrant. That warrant was issued after, not before, the first class mail delivery was attempted.

While you resided at your present location you have mentioned missing deadlines on cases you have filed because you were slow to get the mail. What case was that, and were there any others.

Sicario said...

First prediction: Your wife will be convicted. You will claim it is because the prosecutors and police lied, and because the judge is inept, corrupt or both.

Second prediction: You will bring a civil suit over her arrest. You will lose. You will claim that you lost because you were denied procedural fairness and because the judge (a different one, this time) is inept, corrupt or both.

Third prediction: You will continue to blame your considerable misfortune on everyone but yourself.

legalschnauzer said...

Fourth prediction: I will invite you to contact me directly via email or phone and you won't because you are a coward and a con man. I will invite you to discuss this one on one, via your real name, and you will be too big a pussy to do so.

Chances of that prediction coming true: 100 percent.

Anonymous said...

Hah! Great comeback, Schnauzer. You yanked Sicario's heart out of his chest and stomped that sucker flat. I love to see a smart-ass get hammered like that. Sicario must be skulking back under his rock after taking that pounding.

legalschnauzer said...

Memo to Sicario:

If you think I would waste my time and resources taping a conversation with you . . . well, you're nuts. No. 1, I know you aren't going to contact me directly because you are nothing but a big pussy. No. 2, you overrate your intelligence by a long shot. It would be a better use of my time to tape a whino under a bridge.