Introduction

Anne Milner Fields inherited an oil business when her husband passed away in the 1960s. She ran the business successfully. This case[1] arises from an estate plan implemented by her great-nephew, Bryan Milner.[2] The estate plan was implemented a month before Fields’ death on June 23, 2016.[3]

On May 20, 2016, some 33 days before Fields’ death, Milner formed AM Fields Management, LLC. He was the sole member and manager of the LLC.[4]

On May 26, 2016, Milner formed AM Fields, LP, for which AM Fields Management was the general partner and Fields was the limited partner.[5] Pursuant to a comprehensive durable power of attorney (“POA”) that Fields executed naming Milner as her attorney-in-fact, Milner transferred $17 million of Fields’s assets[6] to AM Fields. In exchange, Fields received a 99.9941% limited partnership interest. Milner also caused AM Fields Management to contribute $1,000 to AM Fields in exchange for a 0.0059% general partner interest.[7]

After Fields’ death, Milner obtained an appraisal of Fields’ limited partner interest in AM Fields. The interest was valued at about $10.8 million as of Fields’ date of death, reflecting $17 million in contributed assets minus a 15% discount for lack of control and a 25% discount for lack of marketability. Milner, as executor for Fields’s estate, reported this discounted value on the estate’s federal estate tax return.[8]

“The Internal Revenue Service audited the return and found the estate plan suspect,” the Tax Court observed.[9] In a Notice of Deficiency, the Commissioner determined that Section 2036(a) of the Internal Revenue Code applied and, as such, the gross estate should include the full date-of-death value of Fields’s assets that were contributed to AM Fields or, alternatively, that the estate undervalued Fields’s limited partner interest, and that the interest was worth $15,388,000.[10]

Underlying Analysis

The issue before the Tax Court was whether § 2036(a) includes with the gross estate the date-of-death values of the assets Fields contributed to AM Fields in excess of Field’s 99.9941% limited partnership interest. If not, the Tax Court had to determine the date-of-death fair market value of Fields’s limited partner interest.

On May 11, 2016, Milner’s attorney drafted the company agreement for AM Fields Management, a partnership agreement for AM Fields, and a certificate of formation for each entity. On May 20, 2016, AM Fields Management was formed.[11]

On May 25, 2016, Milner executed the agreement for AM Fields Management. Under that agreement, he was the company’s sole member and sole manager, and he signed the agreement in both capacities. The agreement provided that Milner would contribute $1,000 to the company in exchange for his 100% interest.

Also on May 25, 2016, Milner executed the limited partnership agreement for AM Fields. As previously discussed, AM Fields Management was the partnership’s general partner and Fields its sole limited partner. The partnership agreement specifically provided that AM Fields Management would contribute $1,000 to the partnership in exchange for a “0.0069%” interest and that Fields would contribute $16,972,409 to the partnership in exchange for a 99.9941% interest. Fields’ contribution consisted of $10,000,000 of assets in a brokerage account, all of her shares in North Dallas Bank, her interest in a tree farm, and her interest in two limited liability companies.[12]

Following Fields’s contribution to the limited partnership, her remaining assets were valued at $2,152,508.

As the Tax Court explained, “[t]he federal estate tax is imposed on the transfer of a decedent’s taxable estate, [and the] taxable estate’s value is the value of the gross estate after app[licable deductions.”[13] The value of the gross estate, in turn, generally includes the fair market value of all property that the decedent owned on the date of death or that is otherwise included under the Code.[14]

 “If a decedent made an inter vivos transfer of property (other than a bona fide sale for adequate and full consideration) and retained specific rights or interests in the property that were not relinquished until death, the full value of the transferred property generally is included in the gross estate.”[15] The purpose of section 2036(a), the Court observed, is to include inter vivos transfers that were testamentary in nature in the gross estate.[16]

There are three requirements for property to be included in the gross estate under section 2036(a). First, the decedent must have made an inter vivos transfer of property. Second, the decedent must have retained an interest or a right specified in section 2036(a)(1) or (2) in the transferred property that she did not relinquish until death. Finally, the transfer must not have been a bona fide sale for adequate and full consideration.[17]

The parties do not dispute that the first condition — an inter vivos transfer of property — occurred here. We therefore consider whether Ms. Fields retained applicable rights or interests in the property she transferred. If she did, we then must consider whether her transfers meet the exception for bona fide sales for adequate and full consideration.[18]

“Transferred property may be included in the gross estate,” the Tax Court noted, “if the decedent retained possession or enjoyment of, or the right to income from, the property.  For these purposes, a transferor retains possession or enjoyment if she retains a ‘substantial present economic benefit’ from the property, as opposed to ‘a speculative contingent benefit which may or may not be realized.’”[19] Possession or enjoyment, in turn, is defined as “retained” where there is an express or implied agreement among the parties to that effect at the time of the transfer.[20]

 The Tax Court found that the $1,000 contribution by AM Fields Management was minimal: “That interest was ‘hardly more than a token in nature ... we direct our attention to the purpose, as opposed to the mechanics, of partnership distributions and expenditures.’”[21]

At all relevant times, AM Fields Management was the general partner, with absolute discretion to make proportionate distributions; Milner was its sole member and manager; and, under the POA, Milner acted as Fields’ agent, both before and during his time as manager. As a result, Fields in effect held the right to virtually all the income from her transferred assets. The court noted that although “Fields did not actually receive any income distributions from AM Fields during her life … section 2036(a)(1) ‘does not require that the transferor pull the string; it only requires that the string exist.’”[22]

The Tax Court also concluded that Fields retained enjoyment of the five transferred assets themselves. The transfers left her with only $2.15 million of assets outside the partnership, while her will listed bequests of $1.45 million, and a substantial estate tax liability was foreseeable. On this basis, the Court found an implicit agreement between Milner and Fields that he would make distributions from the partnership to satisfy her expenses, debts, and bequests, if and when necessary.[23]

The Tax Court therefore held that up until her death, Fields retained the enjoyment of the five transferred assets, as well as the right to the income from those assets and the right to designate who should possess or enjoy that income.

Section 2036(a) contains a carveout for transfers constituting a bona fide sale for adequate and full consideration. “Whether the transfer is a bona fide sale is a question of motive,” the Court observed, “and whether a transfer is for adequate and full consideration is a question of value.”[24] In this case, Fields received adequate and full consideration, so the case turned on whether there was a bona fide sale.

In resolving that inquiry, “the proper inquiry is whether the transfer in question was objectively likely to serve a substantial nontax purpose. Accordingly, the finder of fact is charged with making an objective determination as to what, if any, nontax business purposes the transfer was reasonably likely to serve at its inception.”[25]

The Estate argued that there were four nontax purposes for Fields’s contributions to AM Fields: (1) protection of Fields from financial abuse;[26] (2) succession management; (3) avoidance of problems with third parties honoring Fields’ POA; and (4) streamlined management of assets.

The Tax Court held that although the nontax purposes were plausible, it seems more likely that the four putative nontax purposes are post hoc theoretical justifications rather than actual motivations.[27]

The Tax Court outlined the timeline below in its analysis of the matter.

Conclusion

The Tax Court held that the estate did not meet its burden of proof and as such the transfer of Fields’ assets to AM Fields was not a bona fide sale. In the Tax Court opinion, it addressed the actual value of the transferred assets that must be included in the gross estate and after the testimony of expert witnesses, the Tax Court determined that the Estate should have reported the assets transferred at a value of $17,062,631.[28]

MISSOURI SUPREME COURT HOLDS THAT JUDGMENT VACATING CONVICTION UNDER MISSOURI’S INNOCENCE STATUTE DOES NOT RESULT IN DEFENDANT’S IMMEDIATE RELEASE OF CUSTODY.

State ex rel. Andrew Bailey v. Hon. Jason Sengheiser, 692 S.W.3d 20 (Mo. banc 2024).

In 1991, Christopher Dunn was convicted of murder and other offenses and was sentenced to life without parole and consecutive sentences of 90 years.  In February 2024, the St. Louis Circuit Attorney filed a motion to vacate Dunn’s conviction pursuant to Missouri’s innocence statute, Section 547.031.  That statute, which became effective at the end of August 2021, provided that a prosecuting or circuit attorney in the jurisdiction in which a person was convicted of an offense may file a motion to vacate or set aside the judgment at any time if they have information that the convicted person may be innocent or may have been erroneously convicted.  It further provides that the circuit court in which the person was convicted shall have jurisdiction and authority to consider, hear and decide the motion.  The statute also provides that the prosecuting attorney or circuit attorney shall have the right to file and maintain an appeal of the denial or disposal of such motion.  However, the statute does not provide that the attorney general may appeal from a ruling on such a motion, but it does provide that the attorney general may file a motion to intervene in any appeal.

The circuit court held a hearing on the circuit attorney’s motion, and on July 22, 2024, the court issued a judgment vacating Dunn’s conviction, and ordered his immediate discharge from custody.  The attorney general immediately filed a notice of appeal to the Missouri Court of Appeals, Eastern District.

After Dunn remained incarcerated, the circuit court, on July 24, issued an order directing the Department of Corrections to release Dunn by 6 p.m. that day.  Immediately following the entry of this order, the attorney general filed a petition with the Missouri Supreme Court for a writ of prohibition or mandamus to prevent the circuit court from ordering Dunn’s release and requested an emergency stay to allow sufficient time for the Court to consider the writ petition.  The Supreme Court then issued an order temporarily staying the circuit court proceedings, and directed expedited briefing from the parties on the merits of the attorney general’s position. 

In the writ proceedings, the attorney general contended that the innocence statute authorized his appeal of the circuit court’s judgment vacating Dunn’s criminal conviction.  The circuit attorney, however, argued that the writ petition should be denied because the innocence statute does not authorize the attorney general to appeal the circuit court’s judgment.  The Supreme Court, however, did not resolve this question, stating that “this threshold question need not be addressed in this opinion,” but, rather, “this question can more adequately be raised and resolved in the attorney general’s pending appeal in the court of appeals.” 

The Supreme Court reaffirmed a prior holding that proceedings under § 547.031 are civil in nature.  The Court noted that an appeal from a final judgment in a criminal case does not automatically stay the execution of such judgment, absent some legal authority to the contrary.  The Court pointed out that the attorney general did not identify any applicable authority providing for an automatic stay of judgment entered pursuant to § 547.031.  Therefore, the judgment in the case is immediately operative and enforceable. 

The Court explained, however, that § 547.031 provides only that the circuit court may sustain a motion to vacate and thereby set aside a criminal conviction; it does not provide that the court may order a defendant’s release from custody.  The Court noted that, as with any vacated conviction, the criminal case and the charges as to which the conviction has been vacated are reinstated, and the defendant is remanded to his detention status prior to conviction.  While the charges remain pending against Dunn, the State is free to retry him.  Of course, the State may elect to dismiss the pending charges or agree to Dunn’s release while the pending charges are resolved. 

The Court further noted that the Department of Corrections similarly lacked the authority to detain Dunn once the circuit court vacated and set aside Dunn’s convictions.  The Court also noted that the attorney general did not seek a discretionary stay of the judgment from the circuit court or the Court of Appeals.  Absence such a stay, the judgment is enforceable and Dunn was ordered to be released from the Department of Corrections’ custody and remanded to the custody of the St. Louis City Department of Public Safety – Division of Corrections as a pretrial detainee. 

In conclusion, the Supreme Court issued a writ ordering the circuit court to take no further action to unconditionally release Dunn from custody while the criminal charges against him remain pending.

[Editor’s Note: upon the entry of the Supreme Court’s opinion, the St. Louis Circuit Attorney dismissed the charges against Dunn and he was freed from custody.]

EIGHTH CIRCUIT HOLDS MISSOURI’S SECOND AMENDMENT PRESERVATION ACT VIOLATES THE SUPREMACY CLAUSE OF THE U.S. CONSTITUTION.

U.S. v. State of Missouri, et al., No. 23-147 (8^th Cir., August 26, 2024).

In 2021, Missouri enacted the Second Amendment Preservation Act, which states that various federal acts, laws and executive orders, administrative orders, rules and regulations shall be considered “infringements on the people’s right to keep and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri.”  The Act declares that these federal laws are “invalid to this state,” “shall not be recognized by this state,” and “shall be specifically rejected by this state,” and include the following laws:

1. Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services and that might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;

2. Any registration or tracking of firearms, firearm accessories, or ammunition;

3. Any registration or tracking of the ownership of firearms, firearm accessories, or ammunition;

4. Any act forbidding the possession, ownership, use, or transfer of a firearm, or firearm accessory, or ammunition by law-abiding citizens; and

5. Any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.

Missouri’s law imposes a “duty” on “the Court’s and law enforcement agencies of this State to protect the rights of law-abiding citizens . . . from the infringements defined” in the Act.  The Act further mandated that “[n]o entity or person, including any public officers or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce” a federal law that “infringes on the right to keep and bear arms.”  The Act further provided that private citizens may sue to enforce the Act.  The Act creates a cause of action against “(a)ny political subdivision or law enforcement agency” that either (1) employs a law enforcement officer who acts knowingly to violate the provisions of the Act, or (2) knowingly employs an individual acting or who previously acted as an official, agent, employee, or deputy of the government of the United States, or otherwise acted under the color of federal law within the borders of this state, who knowingly enforced, attempted to enforce, or given material aid and support for the enforcement of the infringements.  The Act provides that each violation of the Act is punishable by a $50,000 penalty and prevailing parties other than the State or political subdivision of the State may recover reasonable attorney fees and costs.

The Eighth Circuit initially found that the United States (represented by the Department of Justice) had standing to sue, finding that the United States presented evidence that the Act impaired legally protected interests because state officials withdrew resources and manpower that further the enforcement of federal law.  The Court then noted that Missouri “does not seriously contest” the principle that the U.S. Constitution, under the Supremacy Clause, is the supreme law of the land, and that a state may not pass any laws that are “repugnant to a law of the United States.”

Missouri contended, nevertheless, that the Act is constitutional because the State may constitutionally withdraw the authority of state officials to enforce federal law.  While Missouri has the power to withhold state assistance, “the means it uses to achieve its ends must be consistent with the letter and spirit of the constitution.”  Missouri’s assertion that federal laws regulating firearms are “invalid to this State” is inconsistent with both.

The Court, having ruled that the portions of the Act that purported to invalidate federal law were unconstitutional, proceeded to an analysis of whether that portion could be severable from the remainder of the Act. The Court noted that under Missouri law, a statute is not severable if “the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one.”  The Court concluded that the statute is not severable because the entire Act is founded on the invalidity of federal law.

MISSOURI SUPREME COURT RULES THAT GUILTY PLEA TO SEXUAL OFFENSES PREVENTS REMOVAL FROM SEX OFFENDER REGISTRY EVEN THOUGH THE CRIMINAL RECORD OF THE PLEA IS SEALED.

John Doe v. Eric T. Olson et al., SC100296 (Mo. banc, August 13, 2024).

John Doe in 1997 pleaded guilty to deviate sexual assault in the first degree and sexual assault in the first degree.  The court suspended Doe’s sentence and placed him on probation for five years, and Doe registered as a sex offender pursuant to Missouri’s Sex Offender Registry Act (MO-SORA).

In 2002, Doe completed his probation requirements and the circuit court sealed those criminal case records pursuant to § 610.105, RSMo, which closed his official case records because imposition of sentence was suspended and the case was finally terminated.  Doe, however, has remained on the sex offender registry since his guilty plea.

After Doe’s guilty plea, the legislature amended MO-SORA several times, including to:

1. Allow members of the public to request names, addresses, and crimes for registrants;

2. Require individuals who have registered federally to register in Missouri;

3. Publish registry information on the internet;

4. Increase the information listed about registrants;

5. Require in-person reporting of changes to name, residence, employment status, and student status;

6. Direct registrants to report in person to disclose changes to online identifiers such as email address and internet communication names;

7. Require registrants provide a DNA sample;

8. Reclassify crimes into Tier I, II and III offenses;

9. Allow removal from the registry for some Tier I and II registrants; and

10. Require Tier II registrants to report in person every 90 days and be photographed.

In addition, Congress enacted the federal Sex Offender Registration and Notification Act in 2006 which places registrants into one of three categories based on the seriousness of their offenses.  Doe’s offenses fell into Tier II.  The federal Sex Offender Registration Act allows Tier II offenders to seek removal from the federal registry after 25 years.

Doe in 2022 filed suit in St. Louis County Circuit Court against the Missouri State Highway Patrol Superintendent and the St. Louis County Sheriff, seeking declaratory injunctive relief and removal from the registry.  Doe claimed the amendments to MO-SORA after his plea required him to disclose information from his sealed record, which infringes on his rights to privacy and substantive due process in violation of the Fourteenth Amendment to the U.S. Constitution and Article I, Section 10 of the Missouri Constitution.  Doe also claimed that the amendments under MO-SORA were a punitive ex post facto law in violation of the U.S. and Missouri Constitutions.  The circuit court denied Doe’s claims.

            In a unanimous opinion, the Missouri Supreme Court affirmed the circuit court’s judgment, holding that because no fundamental right is implicated, the registry is rationally related to a legitimate state interest and the registry is civil in nature.

            Doe argued before the Supreme Court that he has a fundamental right to privacy in information that MO-SORA requires him to disclose, because the records relating to his criminal case were sealed by the circuit court pursuant to § 610.105.  The Court noted that it had addressed a due process challenge to the registry in a previous case, Doe v. Phillips, 194 S.W.3d 833 (Mo. banc 2006).  While the Court has generally acknowledged that “the right to privacy is fundamental” it ultimately found that the petitioning sex offenders, whose records had not been sealed, had no fundamental right to privacy in information already in the public domain.  Here, however, Doe argued that unlike the sex offenders in Phillips, his record was actually sealed and, because § 610.105 seals the records of his convictions, he has a fundamental privacy interest in the information in the records. 

The Court, however, noted that Doe had admitted his guilt in open court, and the information contained in the record was public for five years prior to being sealed.  Sealing the record does not prevent any information related to the convictions from remaining in the public domain.  “The circuit court sealing the record does not “nullify the historical fact that … [Doe] pleaded guilty to a felony.” 

Thus, Doe had no fundamental right to privacy in the information contained in the sealed records.  The Court further explained that because Doe failed to show a fundamental right was implicated, MO-SORA will withstand scrutiny so long as it is “rationally related to a legitimate state interest.”  The Court pointed out that it had previously found MO-SORA is rationally related to a legitimate state interest, holding the State “has a legitimate interest in disseminating public information in the interest of safety and law enforcement efforts” and the safety of children.  “MO-SORA is rationally related to the interest of disseminating information because notification makes ‘convictions accessible so members of the public can take the precautions they deem necessary before dealing with the registrant.’”  While the current requirements of MO-SORA may result in the inclusion of offenders who may be unlikely to reoffend, MO-SORA is still reasonably related to the interest in protecting the public.

            The Court also rejected the claim that MO-SORA violates the constitutional provision on ex post facto laws.  After analyzing the law, the Court found that Doe has not clearly and undoubtedly demonstrated that MO-SORA violates the prohibition on ex post facto laws and that it is reasonable in light of its non-punitive objectives. 

SUPREME COURT HOLDS THAT INITIATIVE PETITION SEEKING TO AMEND MISSOURI CONSTITUTION TO ESTABLISH ABORTION RIGHTS IS PROPER.

Mary Elizabeth Anne Coleman, et al. v. John R. Ashcroft, 696 S.W.3d 347 (Mo. banc 2024).

In a 4-3 decision, the Missouri Supreme Court affirmed the propriety of an initiative petition to amend the state constitution to provide for abortion rights.  Judge Wilson wrote the decision and Chief Justice Russell and Judges Ransom and Powell concurred (although Powell concurred in a separate opinion).  Judge Broniec wrote a dissenting opinion which was joined by Judges Fischer and Gooch.

In March 2023, Dr. Anna Fitz-James submitted to the Secretary of State, as required by § 116.332.1, a sample petition sheet for a proposed constitutional amendment which was intended to institute a fundamental right to reproductive freedom including abortion care.  At this point, § 116.332.1 requires both the Attorney General and the Secretary to independently assess the form of the petition to ensure it complies with all applicable requirements.  The Attorney General approved the form of the proposed petition and notified the Secretary.  The Secretary was to review the public comments received and the Attorney General’s statements as to form and make a final decision as to the approval or rejection of the form of the petition.  The Secretary did so, approving the form of the petition and notifying Fitz-James of this “final decision.”

Once the form was approved, the Secretary prepared a summary of the measure pursuant to § 116.334.1, and the Auditor prepared a fiscal note and fiscal note summary pursuant to § 116.175.2.  Together the Secretary’s summary of the measure and the Auditor’s fiscal note summary constituted the official ballot title for the measure under § 116.180.  These were then sent to the Attorney General for approval as to form under § 116.334.1 and 116.175.4.  The Attorney General, however, refused to approve the form of the Auditor’s fiscal note summary which prevented the Secretary from certifying the official ballot for the initial petition and delayed proponents circulating the petition for signatures.

In May 2023, Fitz-James filed a petition in Cole County Circuit Court to compel the Attorney General to approve the fiscal note summary.  The circuit court issued a writ directing the Attorney General to do so and the Missouri Supreme Court affirmed.[i]  In July 2023, after the Attorney General approved the legal content of the fiscal note summary, the Secretary certified that summary and his summary statement as the official ballot title for the initiative.  However, that same day, Fitz-James filed suit under § 116.190 claiming the Secretary’s summary was insufficient and unfair.  On September 25, 2023, the circuit court entered judgment for Fitz-James finding that the summary statement was insufficient and unfair and redrafted the summary to comply with § 116.334.1.  The Court of Appeals, Western District, agreed, and certified a summary statement varying slightly from that certified by the circuit court.

Proponents of the petition then began circulating the initiative for signatures, and on May 3, 2024 they filed the signed petition with the Secretary of State, who reviewed and ultimately validated a sufficient number of signatures in a sufficient number of congressional districts to meet the requirements of putting the proposed amendment on the ballot.  Accordingly, on August 13, the Secretary of State issued a certificate that the petition was sufficient.

On August 22, opponents of the initiative filed the present action in Cole County Circuit Court, claiming (1) the petition failed to include every constitutional provision and statute that may be altered, validated or otherwise limited or affected should the voters approve the amendment; (2) that the proposed amendment violates the single subject requirement of Article III, Section 50 and Article XII, Section 2(b) of the Missouri Constitution; and (3) § 116.200.1 is unconstitutional because it does not give them adequate time to challenge the Secretary certification of putting the amendment on the November ballot.  The circuit court agreed with the opponents’ argument that the petition failed to include the laws and regulations that would be invalidated and ordered that the proposed Amendment be removed from the November ballot, but stayed the effect of the judgment to allow for appeal.  The Supreme Court issued its order, reversing the judgment of the circuit court, on September 10, ordering Amendment 3 to be placed on the November ballot.

In its opinion, the Court stated: “This case is not about abortion.  It concerns only what information the constitution requires proponents to include on any initiative petition.  It is about form and procedure, not substance.”  The Court explained that the Attorney General approved the form of the Amendment 3 petition 17 months earlier, in March 2023, and that “if there was a defect in the form of the petition, it is fair to assume the State’s Chief Legal Officer would have identified it and notified the Secretary of State.”  The Court noted that he did not. Then, pursuant to § 116.33.4, the Secretary of State conducted an independent analysis of the form of the petition and made the “final decision” that it was in proper form.  The Court observed: “Again, if there was a defect, it is fair to assume the one constitutional officer statutorily designated to supervise every initiative petition from start to finish would have identified it.  He did not.” 

The Court explained that the reason these decisions by the Attorney General and the Secretary of State are so important is that they occur at the beginning of the process, when an error in form can be corrected with a minimum of disruption to the citizens’ constitutional power of initiative petition.  The Court continued: “Perhaps most important if (as here) the claimed defect is that the petition omits required information essential for Missourians to have before deciding whether to sign the petition in the first instance, a correction at the beginning of the process – before signatures are gathered – protects that interest.”  One that occurs 17 months later, after hundreds of thousands have signed the petition and those signatures have been verified and counted, and the measure has been certified for the ballot, does not. 

The opponents of the petition claimed that under Article III, Section 50 of the Missouri Constitution and § 116.050.2(2), the proponents of the petition were required to include in the petition every constitutional provision and every statute that may be invalidated, limited or otherwise impacted if voters approve Amendment 3.  The Court found, however, that Section 116.050.2(2) imposes no such requirement.  Even if it did, nothing in Article III, Section 50 of the Missouri Constitution imposes such a requirement, and restrictions on the people’s power of initiative must be found in the Constitution.  They cannot be imposed by the general assembly. 

Thus, the question is only what the constitution requires.  The Court noted that previously, in Buchanan v. Kirkpatrick, 615 S.W.2d 6 (Mo. banc 1981), the Court held that Article III, Section 50 requires a petition proposing a constitutional amendment to identify those existing sections of the Constitution, that are utterly inconsistent and irreconcilable with the proposed amendment.  The Court further observed “this Court has never held that Article III, Section 50 requires a petition proposing a constitutional amendment to identify all statutes that might later be declared invalid in whole or in part if the constitutional amendment is approved by the voters” (emphasis original).  The Court found that there is no basis in the text of the Constitution for requiring a constitutional amendment to identify all statutes that might be affected, and it would impose burdensome requirements with which drafters of initiative petitions cannot reasonably comply. 

The Court held that, “Because Amendment 3 does not purport to repeal any existing constitutional provision and is not so utterly and completely inconsistent with any existing constitutional article or section as to constitute a direct conflict or irreconcilable repugnance, Opponents’ first challenge fails.”

The Court also rejected the opponents’ claim that the proposed amendment violated the single subject requirement of Article III, Section 50 and Article XIII, Section 2(b) of the Constitution.  The Court explained that the constitutional “single subject” requirement prohibits only proposed constitutional amendments that have multiple unrelated provisions.  “Instead, they must either all relate to some single, reasonably specific subject or ‘be properly connected therewith.’”  Here, the proposed amendment identifies its purpose as protecting reproductive freedom and all its provisions easily bear a sufficient relationship to that subject – or properly connected to it – to satisfy Article III, Section 50 and Article XIII, Section 2(b).

The Court also rejected the opponents’ third claim, that § 116.200.1 is unconstitutional because time constraints unfairly limits a citizen’s right to challenge the Secretary of State’s certification that an initiative is sufficient to be placed on the ballot.  However, here the circuit court and the Supreme Court were able to fully analyze and finally address opponents’ first two claims notwithstanding the very demanding timetable.  For that reason, opponents’ third claim was denied as moot. 

In Judge Broniec’s dissenting opinion, in which she was joined by Judges Fischer and Gooch, she disagreed with the majority’s opinion, arguing that Amendment 3 failed to comply with Chapter 116 by not including all statutory and constitutional provisions it would repeal if approved by the voters.

Thanksgiving is my favorite holiday. It is a celebration of giving not gifts but, rather, gratitude. 

We are living at a time when it would be easy to focus on the many difficult issues that our country and world are facing. 

Instead, I am choosing to give light to the people and groups who deserve our appreciation for their efforts to improve our lives locally and globally. 

Thank you, judges.

As I write this in early October, I have just read the Missouri Supreme Court opinion on the petition initiative, Amendment 3.  The Court determined the initiative conformed to the law and that it should not be removed from the ballot.

How fortunate we are to have such thoughtful jurists who analyzed the law and the facts before them, arriving at a decision in a limited window of time. 

We are nationally known as leaders of the non-partisan court plan. Many of our judges are selected by a dedicated commission of judges, lawyers, and citizens. They do not run for office with all the pressures and social media postings. They do not need to fundraise nor seek endorsements. 

Keeping politics out of the courts is another way we honor democracy. The independence of the judiciary is a sacred part of how justice is meted out and gives confidence to its administration.

It is not unusual for friends or family to ask me which are the “bad” judges, so they can vote no next to their names. 

My standard response is “none of them is a bad judge.” I may disagree with a particular ruling, but the judges that I appear before are all trying their best to do the right thing, meaning applying the law to the facts. Sometimes we appeal their decisions. We respect the appellate process, even when the final ruling seems unfair. 

Thank you, clerks and bailiffs.

If the wheels of justice move smoothly, it is because we have clerical personnel in our courts that really care about the litigants. They have been challenged by insufficient funding, high turnover, electronic filing demands, and security concerns. Yet, they show up and are helpful to the newest attorneys as well as some of us who can use a reminder about court forms and procedures.

The role of the bailiff has changed dramatically in the past decades. My first bailiff was there to open court and answer general information questions. Today’s bailiffs serve as a line of safety for the judge, counsel, and litigants. They are alert, vigilant, and organized. We are so fortunate to have these first responders. 

Thank you, law partners, associates, and staff.

I really couldn’t do it without you. How grateful I am for the wisdom and generous advice from my law partners. It truly takes a village; cases have such complexity that it is impossible to know all the answers. Having the benefit of hundreds of years’ experience just down the hall is invaluable. Our associates ask all the right questions and eagerly take on assignments and new experiences. They bring needed support and fresh thinking. I learn something from each one. The wind beneath my wings comes from our staff, especially my legal assistant and my paralegal. They take my case strategy and incorporate it into concrete evidence, they draft pleadings, contact clients and witnesses, and build our trial books. They make me look good every day! This includes, of course, preparing us for the most successful mediations to resolve dispute amicably.

They are interested in our clients and care about them. That makes a huge difference in the quality of the services we provide.

Mental health professionals.

Every year I notice that more of our clients can use the support of mental health professionals. Going through a divorce, seeking an involuntary commitment of a loved one, having a death in the family, having family conflict, all are filled with much trauma. We lawyers are not equipped with the skills, nor would it be appropriate for us to meet all the needs of our clients. Trusted therapists work with our clients to provide coping skills, different ways of thinking, and hopefulness that seems very distant while their case progresses.

Elected officials.

I admire our legislative leaders, whether locally, in Jeff City, or nationally, for their willingness to serve at a time fraught with serious discord and the risk of violence to themselves or their loved ones. Many of these patriots serve without compensation on school boards, commissions, or non-profit boards, doing research on best practices and making decisions on difficult issues. They travel distances to do so and give up valuable time to make our lives better and our futures brighter. 

We need to encourage more lawyers to run for office and to support their efforts. We have the knowledge and legal prowess to propose and draft laws that are constitutionally correct and effective. 

If we can’t serve, we still have a duty to use our expertise to oppose legislation that is unsound and unconstitutional and to speak out for legislation that addresses the many issues that need improvement.

My family and dear friends.

I am blessed with a wonderful family who has supported me in my journey as a lawyer, a judge, and then a lawyer again. They cheer my victories and comfort me in my defeats. My wife is at my side enduring war stories and frustrations. My children are my biggest fans but also keep me humble as I watch the devote ways they work, play, and parent. They challenge me to think in different ways and remind me why I became a lawyer: to help others.

Going forward.

The great first century rabbi, Hillel, posed these questions: “If I am not for myself, who will be for me? And yet if I am for myself alone, who am I? And if not how, when?”

The past year has been particularly difficult for me. The situation in the Middle East has caused great stress for those of us who are Jewish. We have a deep love for Israel but have concerns about the amount of death that the war is causing people on both sides of the borders. The increase in the incidences of antisemitism affects me, my children, and my grandchildren. I have focused on doing what I can control in my dealing with others, rather than what I have no control of many miles away. I have found comfort in my faith, family, and friends. 

We all must also give back to the community in charitable ways and through engagement, giving voice to the marginalized groups and the ones whose voices are silenced. We must be generous in heart and spirit, represent those who are oppressed and victims.

There was never a more important to time to think, plan, and act on our principles while encouraging others to do so. We can mentor, advise, and listen. We truly can do better in this season of Thanksgiving, grateful for the gifts we have, sharing them in a myriad of ways with others. Have a wonderful holiday season and see you in 2025!

Every year, a heartwarming and competitive event takes place that not only tests participants’ knowledge but also makes a significant impact in the lives of children affected by the criminal justice system. The annual Motion for Kids Trivia Night hosted by BAMSL’s Young Lawyers Division, has become a beloved tradition, blending fun with philanthropy to raise funds for the Saint Louis Bar Foundation’s Motion for Kids holiday event aimed at providing a magical holiday experience for children in the Metropolitan St. Louis area, most of whom are currently in foster care. 

A Night of Fun and Philanthropy

The 2024 trivia night will be held at the Parkway United Church of Christ and draws participants from the St. Louis legal community, along with friends, family, and colleagues to compete in a lively atmosphere filled with friendly competition. The trivia night is made possible by sponsors in the legal community who play a vital role, providing financial backing and in-kind donations that help cover costs and enhance the evening’s festivities. Additionally, gracious volunteers and members of the Young Lawyers’ Division donate their time to help organize the event and ensure its success. 

Adding in a twist each year, the trivia night themes have ranged from the 90’s to “The Eras tour”. This years’ theme is a spooky, legal-adjacent: “Whodunnit? Beyond a Reasonable Doubt.”  As the trivia rounds unfold, teams will battle it out to compete for bragging rights (and potential prizes). The questions are crafted to be both challenging and entertaining, ensuring that everyone, from trivia novices to seasoned experts, can contribute. 

Silent Auction, 50/50 Raffle, & Games Galore

One of the highlights of the evening is the silent auction, featuring an array of enticing items donated by generous St. Louis based businesses, community members, and local firms. Ranging from gift certificates to tickets for local sporting events, attendees can bet big on items, knowing that every item raised will directly benefit the Motion for Kids holiday event. The auction not only raises vital funds but also showcases the community’s creativity and generosity. 

Additionally, there are other opportunities to show support for the Motion for Kids event at the trivia night, including a 50/50 raffle, and mini-games in-between rounds, which are sure to stir up excitement. The proceeds raised from these games will also be given directly to Motion for Kids. 

Impact on Children’s Lives

The funds raised during trivia night play a crucial role in making the annual holiday party a reality. The Motion for Kids event provides a joyful experience for children who often face significant challenges in their young lives. For many of these children, the holiday party is one of the few occasions where they can experience the warmth of community, receive gifts, and enjoy festive activities in a safe and welcoming environment. 

BAMSL volunteers work tirelessly to create a magical atmosphere, complete with decorations, games, and a visit with Santa Claus. The smiles on the children’s faces during the party serve as a reminder of the positive impact the community can make when it comes together for a common cause. 

A Community Effort

The Young Lawyers’ Division Trivia Night is more than just a fundraising event; it’s a testament to the power of community. Local firms, businesses, individuals, and organizations come together to ensure that children impacted by the criminal justice system feel loved and supported during the holiday season. The success of this event highlights how collective efforts can bring joy and hope to those who need it most. 

It is the Young Lawyers’ Division goal to not only raise money for the Motion for Kids holiday event, but to encourage a sense of accomplishment and commitment from trivia night attendees for the role they have played in the lives of these children. Trivia Night has become a cherished tradition, one that reinforces the message that together, we can create a brighter future for our most vulnerable children.

"I'll be deep in the cold, cold ground before I recognize Missouruh!" (sic)[1]

It seems every president from Monroe to Trump II, except Eisenhower, agrees with Abraham Simpson: Charles Evans Whittaker is the only United States Supreme Court Justice to hail from Missouri.[2] Colorado, which became a state 55 years after Missouri, and is to this day less populous than Missouri, has had 2 residents serve as justices[3] of the Supreme Court.  There have been as many Heisman trophy runners-up[4] to serve as there have been Missourians. However, three future Justices spent early parts of their legal careers in Saint Louis.

1. Future Supreme Court Justices

1. Louis Brandeis

Prior to being appointed to the U.S. Supreme Court in 1916, thereby becoming the first Jewish justice in the Court's history, Louis Brandeis was admitted to the Missouri bar in 1878 and practiced law briefly in St. Louis, before his former Harvard Law classmate Samuel Warren offered him a job back east, writing “Boston being the only locality in which a civilized man can exist.”[5]  Approximately 10 years later, their famous article, "The Right to Privacy"[6] was published in the Harvard Law Review, laying the groundwork for privacy law in the United States, highlighting Brandeis's belief in the importance of individual liberties.

Brandeis was instrumental in the establishment of the Boston University School of Law, where he emphasized practical training for law students. His influence on legal education reflected his belief that law should serve as a tool for social change. Brandeis’s efforts in education and his mentorship of young lawyers helped shape a generation committed to social justice and civic responsibility.
 

2. Wiley Rutledge

Although his tenure in Saint Louis was also brief, each year Washington University School of Law hosts the Wiley Rutledge Moot Court competition[7], named after its former dean. Wiley Rutledge’s former law school professor, former Missouri Governor Herbert S. Hadley, was chancellor of Washington University in St. Louis and offered Rutledge a full professorship at the law school in 1926. Rutledge spent nine years there, including a stint as Dean of Washington University Law School from 1930 to 1935. He then served as Dean of the University of Iowa College of Law School from 1935-1939, until he was appointed by Franklin Roosevelt to the United States Court of Appeals for the District of Columbia Circuit. He served on that Court until Roosevelt appointed him to the Supreme Court in 1943, where he served until his death in 1949.

One of Rutledge’s students at Washington University School of Law was Clark Clifford, who practiced law in Saint Louis from 1928-1943, and later became Secretary of Defense, in addition to being an adviser to Presidents Harry S. Truman, John F. Kennedy, Lyndon B. Johnson, and Jimmy Carter.

3. Clarence Thomas

Clarence Thomas, upon graduating from Yale Law School in 1974, was admitted to the Missouri Bar, and served as an Assistant Attorney General of Missouri from 1974-1977; an attorney with the Monsanto Company from 1977-1979; and Legislative Assistant to Senator John Danforth from 1979-1981.[8] Oh, to have been a fly on the wall at the Missouri Attorney General's office in the '60s and '70s, when notable elected Attorneys General of Missouri included future United States Senators Thomas Eagleton (1961–1965), John Danforth (1969–1977), and John Ashcroft (1977–1985), in addition to the aforementioned future Supreme Court Justice. Thomas would be appointed to the U.S. Supreme Court in 1991, having been recommended to President George H.W. Bush by his mentor Danforth.

Thomas is known for his originalist approach to constitutional interpretation, which emphasizes a strict adherence to the text as it was understood at the time of its drafting. This philosophy often leads him to dissent. His opinions frequently reflect a belief in limited government and a preference for states’ rights.

Thomas was born in Pin Point, Georgia, a small community near Savannah, and grew up in poverty. He was raised by his grandparents after his parents separated and attended the College of the Holy Cross in Massachusetts and Yale Law School.
 

2. Other notable former Saint Louis lawyers[9]

In addition to those listed below, 8 BAMSL presidents have went on to serve as ABA President:  the first ABA President, James Broadhead; Henry Hitchcock; James Hagerman; Frederick Lehmann; Guy Thompson; Jacob Lashly; John Shepherd, and the current ABA President, Bill Bay.

1. Thomas Hart Benton

Thomas Hart Benton was the center of political life in the first half of the 19th century. Not only did he represent Missouri in the United States Senate from 1821 to 1851, becoming the first member of that body to serve five terms, but had connections that reverberate today. Benton was what we would now call a “frenemy” of future President Andrew Jackson, having served as Jackson’s aide-de-camp during the War of 1812. After an officer in Jackson's unit had shot Benton's brother in a duel where Jackson served as second, Benton said Jackson should have stopped the duel, and Jackson vowed to horsewhip Benton the next time they saw each other. Benton shot Jackson in the arm in a September 1813 duel at a Nashville hotel.[10]  That bullet was removed during Jackson’s 1829-1837 Presidency.

In another series of duels, Benton and opposing counsel Charles Lucas wounded each other on August 12, 1817, and Benton killed Lucas in the rematch on September 27, 1817. Lucas and his family owned much of present-day Normandy. Lucas and Hunt Road is named after him and another nearby property owner, explorer Wilson Hunt.

The statue of Benton in Saint Louis’ Lafayette Park is said to be the first public monument in the state of Missouri, and was sculpted by the first female professional sculptor, Harriet Hosmer. Benton is wearing a toga, facing west, with the metope stating “There is the East, There is India,” a reference to his promotion of Westward Expansion.

Benton’s son-in-law, the explorer and General John Charles Fremont, won the 1856 nomination of the newly formed Republican Party, but Benton voted for James Buchanan and remained a loyal Democrat until his death in 1858. Incidentally, Fremont had a great campaign song, with a refrain to the tune of La Marseillaise: “Free Speech, Free Press, Free Soil, Free Men, Fre-Mont and Victory,”[11] although victory eluded the nascent party until 4 years later.

Benton’s great-grandnephew and namesake, Thomas Hart Benton (1889 –1975), painted the mural “A Social History of Missouri” at the Missouri Capitol. When Winston Churchill gave his famous “Iron Curtain” Speech, he politely declined a monetary honorarium but stated “if the University particularly wishes to give him a present, Mr. Churchill would be very happy to receive a painting by [the younger Benton].”[12]

2. Daniel Y Abebe, dean of Columbia University Law School[13]

“How does a kid with a 2.8 high school GPA wind up at Harvard Law School?”[14] And then dean of Columbia University Law School?[15]  “The road beg[an] at Maryville [University]… Abebe chose Maryville at the urging of his parents, along with a family friend—Maryville’s then-president Keith Lovin.”[16]  Although Abebe only lived in Saint Louis during college, he credits his education here as being very formative to his career. Abebe served various professorial and administrative positions at the University of Chicago and its law school for 18 years, prior to being selected as Columbia Law School dean in August 2024.

A few years ago, he and I discussed our friendly rivalry vis-à-vis grades, and he agreed that it made us both want to be better, not necessarily compete with each other. Like the fraternal rivalry between teammates Babe Ruth and Lou Gehrig, we each made the other want to be a better student.

3. James Shields, would-be duelist with Abraham Lincoln

On September 22, 1842, James Shields and a 33-year-old lawyer named Abraham Lincoln met for a duel on an island on the Missouri side of the Mississippi River near Alton. Shields, a Belleville attorney and state auditor, had accused Lincoln, then a state legislator, of writing a critical article about him. Lincoln chose cavalry broadsword as their weapons. Lincoln used his “sword to cut off a high branch overhead, making his advantage in heigh obvious. The issue was settled peacefully”[17]

Shields is the only person in U.S. history to serve as a Senator for three different states: Shields represented Illinois from 1849 to 1855, Minnesota from 1858 to 1859, and Missouri in 1879. Shields also served briefly on the Illinois Supreme Court.

For further reading on other Saint Louis Lawyers, I recommend “Famous and Infamous Lawyers in St. Louis History” by Marshall Hier, and published by BAL[18]

BAMSL is honored to accept Cedric Hustace's donation of a custom painting of St. Louis for our members to enjoy for generations.

Were you a member of BAMSL?

Yes. Since 1964. Member No. 7513.

Can you share any memorable experiences or moments from your time with BAMSL that stand out to you?

When I was active in bar matters in St. Louis, BAMSL was located on the top floor of the old Mayfair Hotel downtown. Wonderful headquarters. Sort of like taking a step back in time, especially with that quaint dining room. The wallpaper consisted of old English indentures and other legal documents.  I’ve often thought of doing a major painting of the scene; however, like a dodo, I never took any photos of the place and haven't been able to find any. Maybe one day. At least I came away with an excellent recipe from the dining room–the one and only “Supreme Court Sandwich.”

Are there any particular BAMSL initiatives or programs that you were passionate about during your time as a member?

My specialty was mining law. Was on a couple of committees that roughly dealt with environmental aspects. I even wrote a couple of articles for the St. Louis Bar Journal dealing with that specialty. 

What advice would you give to current BAMSL members who are early in their careers, based on your own experiences?

Always strive to practice the highest ethical standards. No shortcuts. That way, you’ll have a good practice and life and happiness.

What inspired you to transition from a career in law to becoming a full-time artist?

That was never a problem. I’ve done art and music ever since I was a kid. In high school in El Paso, Texas, I was a member of the National Art Honor Society. With respect to music, I owned my first musical instrument before high school–a lovely Martin soprano ukulele. Still have it. I taught myself how to play the uke. In high school, I performed in assembly programs. When I was going to start undergraduate studies at Texas Western College (now University of Texas at El Paso), my mom admonished me that I could take as many art and music theory courses as I liked, just so long as I didn’t major in either! Guess she didn’t want a starving artist or musician for a son! During my years of law practice in St. Louis, I was active with the St. Louis Artists Guild. Sang the lead in the “Boyfriend” musical and was the musical director for another musical “Little Mary Sunshine.” In that latter musical, the orchestra consisted of twin pianos–a lovely lady graduate of Julliard School of Music, who played the score as written; and me, who ad libbed the score throughout. We got rave revues. All during my law career, I’ve done lots of art. A famous Chinese artist once said, one is not an artist until he’s done four thousand paintings. I’ve done over three thousand, so I guess I’m at least a three-quarters’ artist. A number of my Evansville Philharmonic Orchestra paintings are hanging in the headquarters of that wonderful organization. I’ve done a number of bar-journal covers for the  Indiana State Bar Association and the Texas Bar Association. Also, 11 of my UTEP campus scenes are in the permanent collection of that institution. Washington University in St. Louis (my wife Carol's alma mater) has used my art for fundraising. Samples attached. These days, I post my latest works of art on Facebook. Check them out there and on my website: https://www.cedrichustace.com

Could you share the story behind the painting you donated to BAMSL? What inspired it?

I’ve always loved downtown St. Louis. When I decided to offer to do a painting for BAMSL, I contacted your Executive Director, Susan McCourt Baltz. We put our heads together and came up with a downtown scene featuring the Old Courthouse and, of course, the magnificent Gateway Arch–after all, the Arch is a part of BAMSL’s logo. That just goes to show that great minds think in the same direction.

What advice would you give to other legal professionals who have creative passions outside of their careers?

I think it’s very important to have diversification of interests. Art and music offer great opportunities for a legal professional to relax and lead a fuller life. In 2011, I spent five weeks at sea aboard Oceania's then newest ship, Marina, teaching passengers how to do art and paint. Carol was my assistant (she has a Master of Fine Art from Wash. U.). At least one or more of the passengers were medical doctors. They had great fun learning something new, and I’ve heard from them that they still enjoy art.

Looking back, what do you miss most about your time with BAMSL and the legal profession?

BAMSL is a great organization with terrific members. I enjoyed my association with the organization. I’m glad that through my art, I can continue that association in some measure.

What has been the most rewarding aspect of your art journey so far?

Bringing joy and happiness to people through my art. I like people, and I think that’s reflected in my art. Most recently, I provided art to commemorate the 10th anniversary of flights from Evansville to Washington D. C. for veterans as a thanks for their service. Honor Flights of Indiana. Each veteran who’ll be on the flight to D.C. this October will get a print of my painting, “Salute to the Services.” Attached. Incidentally, the original of that painting is owned by our Annapolis grad grandson, who flies for the Navy.

Autumn presents us with beautiful views, vibrant colors, and a lovely opportunity to prepare for the holiday and winter season. Conservationists will tell you that trees lose their leaves this time of year for a few critical reasons. First and foremost, to conserve energy. Maintaining green leaves is hard work and impractical year-round. Second, it helps the trees avoid freezing in the colder months. Lastly, for senescence. A little state of nature we could all learn from. Senescence, in short, is the tree’s process of aging. The trees, as a whole, engage in the process and the individual leaves do, too. In fact, the changing of the leaves is what allows the trees to survive the winter and reach old age. 

When the temperatures drop and the sun sleeps in, plant life recognizes the need to slow down. Less sun, more darkness, and cooler temperatures are all natural stressors for plant life. Trees in particular stop several major functions. For one, they stop producing chlorophyll. Trees also slow down or stop altogether engaging in photosynthesis. They don’t take in light and water to create oxygen or produce sugars. Without chlorophyll and food, leaves enter their final stage of senescence. The result is a beautiful tapestry of oranges, yellows, and reds as the leaves bid a final, fall farewell. 

While a botanist will call this “cell death,” it’s very much a life sustaining process for the tree. When the tree stops engaging in unseasonable activities, like chlorophyll production, it conserves its resources for the spring. As the leaves fall, their nutrients, minerals, and amino acids are recycled through the earth and give the tree additional energy. All of that to say, the leaves that the tree once supported now support the tree. Most importantly, the tree itself lasts to live another season. 

Trees are scientifically and properly described as “dormant” during the winter months. Surely when we compare them to the blossoming phase of spring this period pales when it comes to activity. It’s worth mentioning that this “dormancy” or resting period is just as integral to a tree’s life cycle. Activity isn’t the only measure of liveliness. The tree is still the same tree during phases of activity as it is during periods of rest. As with most things in nature, each part of the life cycle is necessary to support the next.

When we look to the ways we engage with the winter months we see a very different picture. We tend to make our very busy lives much busier during this time of year. Beginning in November, we engage in a flurry of festivities, plan parties, and increase our indulgences with each passing week. Once the holiday season finally relents, we pursue agendas of perfection in the name of self-improvement. Many of us do this while striving to maintain an already unrealistic schedule full of hustle and bustle. Over extended schedules also encourage us to work hard and play even harder. In other words, over scheduling begets over scheduling. This can be especially true during sparkly holiday seasons.

Before we criticize ourselves for participating in this annual hullabaloo, we should recognize that we do so for good reason. It’s all but impossible to escape certain expectations of the holiday season. Friends and family can unintentionally put pressure on us to overextend in the name of tradition, excitement, or merriment. Sometimes, of course, they also do this intentionally. We all share the experience of the holiday season. It is important to remember that we all experience the holiday season differently. Shared experiences, even while experiencing these seasons differently, often ask us to substitute our own priorities with another’s. 

The legal profession especially and actively encourages participation in the “always on” culture. Attorneys are often advocates of the “respond to say you can’t respond” mode of communication. Clients and Partners alike haphazardly label everything aside from rest and lunch as “urgent.” In a post pandemic world, “face time” and “showing up” are more scarce, valuable, and ambiguous as priorities. It’s no surprise that our holiday seasons become a time when we’re expected to continue to out-work while we also out-play our competition. 

Add to all of this that we’re so often inundated with imagery of what the holiday season should look like, and it is plain to see why the Winter Blues move in with such force. From classic cinema to modern sitcoms and storefronts to social media feeds, our culture invests a great deal of resources into the picture-perfect holiday season. These influences are not without imprint. We truly do, consciously or not, absorb the “expectations” of the winter season. It’s not often that we’re given space or time to question which pieces actually bring us joy. Rather than rest we find ourselves exerting more energy than ever.

In short, we have a demanding profession, often unrealistic expectations of the holidays, and a season that requires more energy than any other. Understanding this allows us to adopt some strategies to weather the winter. First, there are steps to take to physically help with the energy drain brought on by the ‘Ber Months. You can use:

• A light to combat the dark;
• Teas to help you sleep;
• Warm clothes to keep you cozy; 
• Space heaters to beat the cold;

If the winter months are particularly challenging, it might help to plan something to look forward to once they end. Consider booking a vacation or planning a spring celebration. Remember that just like the trees, we need adequate water, nutrition, and sleep.

Far from the snow-covered evergreen trees of a Hallmark Christmas, those of us in the Midwest live amongst Dogwoods. Perhaps the most important lesson we can learn from the trees is to acknowledge our need for rest. Despite the movies, friends, colleagues, cookies, festivities, shopping lists, gift giving, and invitations, we need our rest. In seasons where we are so often invited to overextend our own energetic capacity, it is critical that we decline. Declining an invitation to an event you’d rather not attend frees up time and space for an event you’d prefer to be at. Even better, you can simply find space for rest. We simply cannot continue to create chlorophyll, shall we say, when we have less warmth and light than we need. In short, if you feel as though you are doing too much you likely are.

Get intentional about the pieces of your year which no longer serve you. Letting them go will move you from where you have been to where you want to go. While it is tempting to hold on with all of our might to each and every piece, we create over the years it is also unhealthy. Keep in mind that the release of certain elements can nourish us in new ways. This is why production intentionally slows as resources dwindle. The only solution to doing too much is to do less. Shedding our own metaphorical leaves is a necessary part of our life cycle. Nothing is intended to bloom all year round. 

Rather than indulging in a speedy season of celebrating, I invite you to craft your own customized season of senescence. 

In the vibrant heart of St. Louis’ creative scene, where passion meets expression, a dedicated group of legal professionals is quietly shaping the future of the arts. Through the Volunteer Lawyers and Accountants for the Arts (VLAA), they provide a lifeline to artists and arts organizations, ensuring that the pursuit of creative endeavors doesn’t become entangled in legal complexities. As a volunteer and board member of VLAA, I’ve witnessed firsthand the profound impact this organization has on our community.

Imagine a painter meticulously crafting their masterpiece, a dancer pouring their soul into a breathtaking performance, or a musician weaving a tapestry of melodies. These artists, driven by their passion, often find themselves navigating a world of contracts, intellectual property rights, and non-profit legalities. This is where VLAA steps in, offering invaluable pro bono legal assistance, allowing artists to focus on what they do best: creating and sharing their art with the world.

VLAA’s impact reverberates through every corner of St. Louis’s artistic landscape. From reviewing performance agreements to guiding artists through the maze of copyright protection, VLAA’s army of pro bono attorneys provides clarity and peace of mind. They help artists understand their rights and obligations, ensuring fair and equitable terms in every contract.

Beyond contract review, VLAA also plays a crucial role in helping area artists protect their creative work. Intellectual property issues, such as copyright infringement or trademark disputes, can be a significant challenge for artists. VLAA attorneys provide guidance and support, ensuring that artists can safeguard their artistic and financial interests. David Kim, an intellectual property attorney at Stinson LLP and dedicated VLAA board member and presenter since 2008, eloquently explains, “VLAA helps artists who might not seek professional assistance protect their work and make informed decisions, providing them with peace of mind to focus on their art. This benefits not only the artists but also fosters a vibrant creative environment that enriches society as a whole.”

VLAA's reach extends far beyond individual artists, encompassing the full spectrum of the arts community. Take, for instance, Ballet 314, a professional dance company that sought VLAA’s assistance in establishing dancer agreements. VLAA volunteer attorney Mary Fletcher of UB Greensfelder LLP provided critical assistance to Ballet 314, helping them navigate the complexities of dancer agreements and ensuring compliance with employment regulations. Sarah Mayer, Ballet 314's board treasurer, lauded VLAA’s contribution, stating, “Mary’s help was critical to ensuring that we set up our new season and associated dancer agreements in a way that protects our organization and our dancers. I love VLAA! It is an incredible resource for arts nonprofits in St. Louis.”

VLAA's success stories are a testament to the power of dedicated volunteers like Mike LaBozetta of Faro Law STL, who finds immense satisfaction in helping artists lay a strong legal foundation for their creative endeavors. He recalls a case where he assisted a group of artists in establishing a multi-member LLC for their art gallery, providing them with the legal structure needed to thrive. “It was a great test of my own bedside manner in outlining these concepts, making them make sense to the clients, and making them make sense within the context of the clients’ business and artistic goals,” he shares. “Often in my practice, I am the first attorney that a business owner has ever worked with. This is almost universally true with the clients I have worked with through VLAA. The law is only one of the many lenses through which artists view their business and it is my job as the attorney to make sure that lens is as crystal clear as possible.”

VLAA’s impact is undeniable, yet challenges remain. Ensuring that artists are aware of their legal rights and the resources available to them is an ongoing pursuit. Through educational programming, outreach initiatives, and accessible legal assistance, VLAA is committed to empowering artists with the knowledge they need to protect their creative voices. David Kim emphasizes the importance of education and community building, stating, “I’d love for VLAA to provide more opportunities for collaboration, mentorship, and support among its volunteers, as well as getting plugged in with the arts community more so that there are more interactions with more artists.”

Looking ahead, VLAA envisions a future where every artist, regardless of their background or discipline, has access to the legal support they need to flourish. By developing targeted programming, fostering mentorship opportunities, and strengthening community engagement, VLAA is building a vibrant ecosystem where creativity can thrive. 

VLAA’s work is evidence of the transformative power of pro bono service, ensuring that St. Louis’ artistic spirit continues to shine brightly. Join us in this vital mission and help illuminate the path for artists to pursue their passions, protect their creations, and enrich our lives with the beauty of their art. For more information, contact Sue Greenberg at vlaa@vlaa.org or go to www.vlaa.org. VLAA is funded by donations and grants, including the Saint Louis Bar Foundation.

What motivates you to take on pro bono cases?

I want to help someone in need who cannot help themself.

How does pro bono work align with your values as a lawyer?

Practicing law is a privilege that very few people enjoy. While it is our ethical responsibility, providing pro bono work to those seeking justice is simply the right thing to do.

Why do you believe it’s important for lawyers to engage in pro bono work?

In our current culture, it is unfortunate that there is such a need for pro bono lawyers. But the reality is we are living in a world where people are often unkind, lack compassion and injustice is sometimes more frequent than justice.

Can you describe a particularly rewarding pro bono case and why it stood out to you?

I recently assisted a family from Afghanistan where the husband and father of two had worked with US Forces.  They were one of the last flights out of Kabul. They are asylum seekers. They arrived in Saint Louis and began adjusting to their new environment. They learned to speak English, obtained a driver's license, became employed, and even grew their family. With the help of other nonprofit groups in the area, I watched them thrive. I was proud to be just a small part of their journey on the path to citizenship.

What advice would you give to young lawyers considering pro bono work?

Step outside your comfort zone. Don't be afraid to take on a case. If you are working with any local nonprofit agency, they often have mentors who are staff attorneys or volunteers who can help you with your case. It will truly be one of the most rewarding experiences you will have as a lawyer. If you like pro bono work, make it a part of your practice. You will not regret it.

Jennifer Schwendemann is a past Saint Louis Bar Foundation President and current board member.

On October 23rd, BAMSL hosted the Celebrate Pro Bono Week Reception. This Celebration occurred during the national week of recognizing the importance of pro bono legal work in our communities sponsored by the American Bar Association. BAMSL has hosted an event related to volunteer legal work during this week for over ten years.

Past events have featured CLE opportunities, important speakers, and presentations about the scope of volunteer opportunities available in our community.

This year’s Celebration focused on three primary pro bono topics – First, re-introducing the Pro Bono Matters online platform. This user-friendly service allows lawyers to search for pro bono opportunities the various legal aid organizations have posted. This platform can be accessed at https://www.bamsl.org/probonomatters.

Secondly, representatives from several outstanding organizations offering pro-bono opportunities were present at the event and had tables with information about the opportunities and how to get involved. The organizations which attended include Arch City Defenders, The Kaufman Fund, Land of Lincoln Legal Aid, Legal Services of Eastern Missouri, MICA Project, New Covenant Legal Services, St. Francis Catholic Legal Assistance Ministry, and Volunteer Lawyers and Accountants for the Arts.

The final goal of the Celebration was to introduce the reactivation of the Pro Bono Challenge. The Pro Bono Challenge had been dormant since the onset of the COVID pandemic but calls on law firms (of any size) and legal departments of in-house groups to track and report hours of pro bono service, aiming for an average of 10 hours per year, per local full-time attorney.

The event included an award given to a champion of access to justice issues, Gail Wechsler, Library Director, Law Library Association of St. Louis. 

The focus of all these different parts of the Celebration was the same – encouraging lawyers in our community to engage in critical pro bono legal work and showing them how to access opportunities that appeal to them.

If you attended, thank you!  If you were not able, you can access pro bono resources, including Pro Bono Matters, at https://www.bamsl.org/probono, or reach out directly to the legal aid organizations listed.