author: /s/ John D. Minton, Jr. Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Charles C. LEADINGHAM, Respondent.
    No. 2010-SC-000262-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
   OPINION AND ORDER

Charles C. Leadingham, KBA Member Number 82296, was admitted to the practice of law in the Commonwealth of Kentucky on October 30, 1987. His Bar Roster address is 215 15th Street, P.O. Box 387, Ashland, Kentucky 41105. Before the Court is the Board of Governors’ Findings of Fact, Conclusions of Law and Recommendations of April 14, 2010, which recommended Respondent be found guilty, by default, of not refunding any of an unearned $1,000.00 fee paid after he was suspended from the practice of law, in violation of SCR 3.130-1.16(d). The Board also recommended Respondent be found guilty of fading to respond to the Bar complaint despite receiving notification that the Inquiry Commission required a response and information regarding said complaint, in violation of SCR 3.130-8.1(b). The Board of Governors recommended Respondent be suspended from the practice of law for 181 days.

The case before us involved the Respondent’s representation of Chandra Rogers to assist with her attempt to obtain either custody or visitation with her child, whom she had previously given up for adoption. Respondent collected a $1,000.00 retainer, prepared a motion to reopen the case, and set the matter for a hearing. Prior to the hearing, Respondent was notified of his suspension from the practice of law for sixty-one days. Respondent notified both the Court and his client of the suspension, had the case continued, and notified the client that she needed to retain new counsel. The client made numerous requests for a refund of the $1,000.00 retainer but Respondent never replied. Subsequently, Respondent was served with the Inquiry Commission complaint, along with a letter instructing Respondent to file an answer. No response was filed, nor did Respondent file a response after he received a reminder letter.

Respondent’s failure to refund any of the retainer fee after his suspension resulted in a charge under SCR 3.130-1.16(d), which requires the refund of any advance not earned. Respondent’s failure to respond to the Inquiry Commission resulted in a charge under SCR 3.130 — 8.1(b), which requires counsel to respond to a demand for information from a disciplinary authority. Respondent did not answer or otherwise contest the matter and the matter came before the Board of Governors by default.

The Board of Governors reviewed the Respondent’s file of prior discipline to determine the appropriate discipline in this case. In January, 2010, we suspended the Respondent from the practice of law for 120 days, retroactive to May 20, 2009, for his representation in two previous cases. The facts as found by the Trial Commissioner, which we adopted, found that Respondent was accepting fees from clients and not doing the work (the same as in the case now before us).

Respondent also received a sixty-one-day suspension on March 19, 2009, for four violations of the Rules of Professional Conduct. More specifically, he was charged with violations of SCR 8.130-1.3 (reasonable diligence and promptness in representing a client), SCR 3.130-1.4 (keeping a client reasonably informed), SCR 3.130-1.15(b) (returning unearned funds), and SCR 3.130-8.1(b) (fully responding to a demand for information from a disciplinary authority). These charges stemmed from the Respondent’s accepting a client and a fee to litigate against the former owners of the client’s house. Respondent failed to file the suit, failed to return the client’s phone calls, failed to keep the client informed about the case, failed to return any of the fee, and failed to respond to the charge.

Respondent received a thirty-day suspension on November 26, 2008, probated for one year on the condition that Respondent attend the Ethics and Professionalism Program during 2009, for violating SCR 3.130-3.4(c) and SCR 3.130-8.1(b). In that case, Respondent represented two clients in two separate Court of Appeals cases. One case was dismissed when the Respondent failed to file a brief, and the other was dismissed when he failed to file the brief or a motion to dismiss. Respondent did not respond to the Inquiry Commission’s demands for information in either case.

Finally, Respondent received a public reprimand on May 23, 2001, for violations of SCR 3.130-1.4(a) and SCR 3.130-1.16(d), when he undertook representation of a client in a divorce case. Respondent failed to return phone calls and a letter from the client, and failed to notify the client that he would no longer represent the client.

In the case now before us, after reviewing and considering Respondent’s prior discipline, the Board of Governors recommended a 181-day suspension, concurrent with any and all prior suspensions; restitution of $500.00 to the client, Chandra Rodgers, for the unearned part of the fee; and payment of the costs of this action. Respondent did not respond to the Board of Governors’ recommendation to this Court. Under SCR 3.370(10), if no request for review is filed by either party nor a notice of review issued by the Court, the Court shall adopt the decision of the Board of Governors. Important in our consideration of the 181-day suspension is SCR 3.510(1), which requires that a suspended member not resume practice until reinstated by this Court. Also, SCR 3.505(1) requires the Character and Fitness Committee review all applications for reinstatement of persons suspended for over 180 days. It is our opinion that the nature of the offenses, together with Respondent’s prior disciplinary record, merits a suspension from the practice of law for 181 days.

Therefore, it is hereby ORDERED that:

1. Charles C. Leadingham is adjudicated guilty of violating SCR 3.130-1.16(d), and SCR S.130-8.1(b).
2. Charles C. Leadingham is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of 181 days, effective from the date of this order. Said suspension shall be served concurrently with any and all suspensions issued prior to this date.
3. Charles C. Leadingham shall pay restitution of $500.00 to his former client, Chandra Rogers, for the unearned part of the fee.
4. Pursuant to SCR 3.390, Charles C. Leadingham shall send letters to all Courts in which he has matters pending, if any, and to all clients whom he is actively representing, if any, within ten days of this Opinion and Order, notifying them of his inability to continue to represent them and advising them of the necessity of retaining new counsel. Leadingham shall also provide a copy of such letters to the Director of the KBA and cease advertising activities, if any.
5. Pursuant to SCR 3.450, Charles C. Leadingham is ordered to pay the costs of this disciplinary proceeding, said sum being $201.56, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . KBA File No. 17651.

        . Kentucky Bar Ass'n v. Leadingham, 281 S.W.3d 284 (Ky.2009).

      . Kentucky Bar Ass’n v. Leadingham, 302 S.W.3d 79 (Ky.2010).

      . Kentucky Bar Ass’n v. Leadingham, 281 S.W.3d 284 (Ky.2009).

      . Kentucky Bar Ass’n v. Leadingham, 269 S.W.3d 419 (Ky.2008).

      . Leadingham v. Kentucky Bar Ass'n, 44 S.W.3d 374 (Ky.2001).


source: Caselaw Access Project

license: Public Domain

text:
    INQUIRY COMMISSION, Movant, v. David Alan FRIEDMAN, Respondent.
    No. 2009-SC-000801-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
   OPINION AND ORDER

Pursuant to SCR 3.165, the Inquiry Commission of the Kentucky Bar Association (KBA) petitions this Court for an order temporarily suspending David Alan Friedman from the practice of law and to supplement said petition in order to provide additional grounds in support thereof. Friedman’s KBA number is 23618 and his bar roster address is 325 W. Main Street, Suite 150, Louisville, Kentucky 40202. For the following reasons, we grant the Commission’s petition for temporary suspension and its motion for leave to supplement said petition.

In the fall of 2009, the KBA received two bar complaints against Friedman alleging that he had converted to his own use tens of thousands of dollars of an award which he knew he should have promptly provided to his clients. Both complaints arise from Friedman’s representation of both Ronald Barber and Sarah L. Cunningham. The clients engaged Friedman on an hourly basis to file suit against their former employer, Louisville and Jefferson County Metropolitan Sewer District (MSD), and the clients agreed to share any resulting statutory attorney fees award.

At the conclusion of trial, Cunningham was denied any damages but Barber received an award of $35,000 and an attorney fees award of $99,655.65, totaling, with interest, $138,359.85. MSD, the defendant, paid the award to Friedman by early March of 2009 and, on March 11, 2009, Friedman filed an Acknowledgement of Satisfaction indicating that the plaintiffs, Barber and Cunningham, had been paid by MSD. After deducting additional fees owed, the total balance due was $115,069.04, with $72,804.52 due to Barber and $42,804.52 due to Cunningham.

Attached to the Commission’s petition is Cunningham’s lengthy affidavit detailing how Friedman failed to timely remit to either her or Barber the award to which he knew they were entitled. Between the months of March and September, the Commission identifies up to twelve separate correspondences between Friedman and the clients where Friedman repeatedly misrepresented the reasons for the delayed payment, most often implying that he had yet to receive the entirety of the award and was still awaiting payment. Eventually, however, on September 23, 2009, Cunningham confronted Friedman after discovering that he filed a satisfaction of the award in March. In that conversation, Friedman admitted that he had wrongly spent the balance of his clients’ award in an effort to remedy various personal obligations, such as his mortgage, taxes, and payroll. Though he claimed he would repay the entire amount in an effort to remedy what he called a “disbarable offense,” Friedman did not do so until November 19, 2009, after both of the underlying bar complaints were filed.

Based on this conduct, the Commission petitions this Court to temporarily suspend Friedman from the practice of law because he poses a substantial threat of harm to the public. Pursuant to SCR 3.165(l)(b), “an attorney may be temporarily suspended from the practice of law by order of the Court provided ... [i]t appears that probable cause exists to believe that an attorney’s conduct poses a substantial threat of harm to his clients or the public.”

In its motion for leave to supplement its petition for temporary suspension (to which Friedman filed no response), the Commission provides additional grounds for Friedman’s temporary suspension. On March 29, 2010, after filing its petition for temporary suspension on December 7, 2009, the KBA received the affidavit of Jefferson Family Court Judge Paula Sherlock which recounted another instance of alleged theft on the part of Friedman and provides further grounds for temporary suspension under SCR 3.165(l)(b), as such “conduct poses a substantial threat of harm to his clients or to the public.”

In response to the Commission’s petition, Friedman acknowledges that his conduct regarding the receipt and distribution of his clients’ award and his related communications fell below that required of an attorney under the Rules of Professional Conduct. However, he argues that this was an isolated and aberrant event justifying leniency, noting that he does not maintain an escrow account or demand retainers. In lieu of suspension, Friedman states that he would agree to forgo new representation.

Yet, given the volume of evidence submitted by the Commission detailing Friedman’s egregious conversion of client funds and misrepresentations, we are convinced that probable cause exists to believe that he poses a substantial threat of harm to his clients or the public warranting his temporary suspension under SCR 3.165(l)(b).

Therefore, it is hereby ORDERED that:

1.The Inquiry Commission’s Motion for Leave to File Supplement to Petition for Temporary Suspension is GRANTED;
2. David Alan Friedman is temporarily suspended from the practice of law in the Commonwealth of Kentucky, effective upon the date of entry of this order, pending further orders from this Court;
3. Disciplinary proceedings against Friedman shall be initiated by the Commission pursuant to SCR 3.160, unless already begun or unless Friedman resigns under terms of disbarment;
4. Pursuant to SCR 3.165(5), Friedman shall, within twenty (20) days from the date of entry of this order, notify all clients in writing of his inability to continue to represent them. He shall furnish copies of all such letters to the Director of the Kentucky Bar Association; and
5. Pursuant to SCR 3.165(6), Friedman shall immediately, to the extent reasonably possible, cancel and cease any advertising activities in which he is engaged.

MINTON, C.J.; CUNNINGHAM, SCHRODER, SCOTT, VENTERS, JJ., and Special Justice THOMPSON and Special Justice CASHEN concur. ABRAMSON and NOBLE, JJ., not sitting.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . The case being tried under 42 U.S.C. § 1988, Barber, as a prevailing party, was entitled to an attorney fees award. See Riley v. Kurtz, 361 F.3d 906, 914-16 (6th Cir.2004).

      . Friedman made only a partial disbursal of the award in May of 2009 to Cunningham in the amount of $12,500, indicating that he disbursed $42,500 to Barber.

      . The Commission also cites SCR 3.165(l)(d) as grounds for Friedman’s temporary suspension but provides no evidence in its petition demonstrating that Friedman "is mentally disabled or is addicted to intoxicants or drugs” such that "probable cause exists to believe he/she does not have the physical or mental fitness to continue to practice law.”


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Charles C. LEADINGHAM, Respondent.
    No. 2009-SC-000815-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
    See also, 802 S.W.3d 79; 281 S.W.3d 284; 269 S.W.3d 419; 44 S.W.3d 374.
   OPINION AND ORDER

Charles C. Leadingham, KBA Member Number 82296, was admitted to the practice of law in the Commonwealth of Kentucky on October 30, 1987. His Bar Roster address is 215 15th Street, P.O. Box 387, Ashland, Kentucky 41105. Before the Court is the Board of Governors’ Findings of Fact, Conclusions of Law and Recommendations of December 17, 2009, which found the Respondent guilty, by default, of not diligently representing clients in two appeals and in failing to respond to the Court of Appeals’ show cause orders concerning said appeals. The Board of Governors recommended that Respondent be suspended from the practice of law for sixty-one days. This Court issued a Notice of Review under SCR 3.370(9), to review the Board of Governors’ recommended discipline. The KBA filed a brief addressing the appropriate discipline, while the Respondent did not.

The case before us involved the Respondent’s representation of two different clients in two separate Court of Appeals cases. In the first case, Respondent represented the appellants in the case of Ricky Joe Caudill, et al. v. Christina Dawn Ratliff, an appeal from the Green-up Circuit Court. Respondent filed the notice of appeal but did not file a brief in the Court of Appeals. The Court of Appeals filed a notice directing the Respondent to file either a motion for additional time or a motion to dismiss. Respondent did not respond, which resulted in the Court of Appeals ordering the Respondent to show cause why a fine should not be imposed for failure to comply with the above notice. Respondent failed to respond and the court imposed a $500.00 fine and ordered Respondent to file the appellants’ brief. Respondent ignored the directive and the appeal was eventually dismissed.

In the second case before the Court of Appeals, Jimmie Carrol Lockridge v. Velma Darlene Lockridge, an appeal from the Lawrence Circuit Court, the Respondent represented the appellant, and filed a timely notice of appeal. However, the Respondent was issued a show cause order for failing to file a pre-hearing statement. Respondent failed to respond. The Court of Appeals issued an order directing the appellant to retain new counsel and to show cause why the appeal should not be dismissed. New counsel appeared before the Court, was substituted as counsel, and filed the necessary motion.

Based on the Respondent’s failure to prosecute these two cases before the Court of Appeals, he was charged with a violation of SCR 3.130-1.3 for his failure to represent his clients in the two cases with reasonable diligence and promptness. For Respondent’s failure to respond to the orders of the Court of Appeals in both cases, he was charged with a violation of SCR 3.130-3.4(c) for knowingly or intentionally disobeying an obligation under the rules of a tribunal. Respondent failed to answer either charge, and the case came before the Board of Governors by default. The Board recommended that Respondent be found guilty of both charges.

The Board of Governors reviewed the Respondent’s file of prior discipline to determine the appropriate discipline in this case. Respondent is a frequent offender. In January 2010, we suspended the Respondent from the practice of law for 120 days, retroactive to May 20, 2009, for his representation in two previous cases. The facts as found by the Trial Commissioner, which we adopted, found that Respondent was accepting fees from clients and not doing the work (the same as in the case now before us).

Respondent also received a sixty-one-day suspension on March 19, 2009, for four violations of the Rules of Professional Conduct. More specifically, he was charged with violations of SCR 3.130-1.3 (reasonable diligence and promptness in representing a client), SCR 3.130-1.4 (keeping a client reasonably informed), SCR 3.130-1.15(b) (returning unearned funds), and SCR 3.130-8.1(b) (fully responding to a demand for information from a disciplinary authority). These charges stemmed from the Respondent’s accepting a client and a fee to litigate against the former owners of the client’s house. Respondent failed to file the suit, failed to return the client’s phone calls, failed to keep the client informed about the case, failed to return any of the fee, and failed to respond to the Board of Governors.

Respondent received a thirty-day suspension on November 26, 2008, probated for one year on the condition that Respondent attend the Ethics and Professionalism Program during 2009, for violating SCR 3.130-3.4(c) and SCR 3.130-8.1(b). In this ease, Respondent represented two clients in two separate Court of Appeals cases. One case was dismissed when the Respondent failed to file a brief, and the other was dismissed when he failed to file the brief or a motion to dismiss. Respondent would not respond to the Inquiry Commission’s demands for information in either case.

Finally, Respondent received a public reprimand on May 23, 2001, for violations of SCR 3.130-1.4(a) and SCR 3.130-1.16(d), when he undertook representation of a client in a divorce case. Respondent failed to return phone calls and a letter from the client, and failed to notify the client that he would no longer represent the client.

In the case now before us, after reviewing and considering Respondent’s prior discipline, the Board of Governors recommended suspension for sixty-one days with costs. Respondent did not respond to the Board. of Governors’ recommendation to this Court. This Court was concerned with the pattern of Respondent’s conduct and was of the opinion that intervention may be required at this stage to protect both the public and the Respondent. Therefore, we issued a Notice of Review, pursuant to SCR 3.370(9), on March 18, 2010. The Movant, the Kentucky Bar Association, filed a brief but the Respondent did not. The Movant noted that on February 11, 2010, the KBA filed an objection to the automatic reinstatement of Respondent after expiration of the 120-day suspension issued January 21, 2010, for failure to pay restitution, failure to pay costs, and the pendency of other open cases.

The Respondent’s case is similar to Kentucky Bar Association v. Quesinberry, 250 S.W.3d 308 (Ky.2008), wherein this Court suspended counsel for 181 days for failing to diligently represent a client in a divorce proceeding, for failing to adequately communicate with her client, for failing to refund the unearned portion of her fee, and for failing to respond to requests for information from a disciplinary authority. Quesinberry also had prior disciplinary sanctions, including a private admonition, a public reprimand, and a thirty-day suspension probated for one year on the condition that she attend four hours of remedial ethics. Quesinberry had a subsequent disciplinary charge in Kentucky Bar Association v. Quesinberry, 260 S.W.3d 786 (Ky.2008), wherein she was again suspended for 181 days for failing to diligently represent a client, for failing to adequately communicate with the client, and for failing to respond to requests for information from a disciplinary authority. This 181-day suspension was to be served concurrently with the previous suspension.

The Respondent’s case is very similar, if not worse, in severity to Quesinberry’s charges. More importantly in our consideration of a 181-day suspension is SCR 3.510(1), which requires that no member suspended for longer than 180 days resume practice until reinstated by this Court. Also, SCR 3.505(1) requires the Character and Fitness Committee to review all applications for reinstatement of persons suspended for over 180 days. It is our opinion that a sixty-one day suspension is inadequate. The nature of Respondent’s offenses in multiple cases, together with his prior disciplinary record, merits, at a minimum, a 181-day suspension. Before Respondent can be reinstated to the practice of law, he needs to be investigated and evaluated by the Character and Fitness Committee, for not only the protection of the public, but for Respondent’s own welfare.

Therefore, it is hereby ORDERED that:

1. Charles C. Leadingham is adjudicated guilty of violating SCR 3.130-1.3, and SCR 3.130-3.4(c).
2. Charles C. Leadingham is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of 181 days, effective from the date of this order. Said suspension is to be served consecutive to any and all suspensions ordered prior to, or the same date as, this suspension. When, or if, Charles C. Leadingham seeks reinstatement of his license, his application shall be reviewed by the Character and Fitness Committee. The Character and Fitness Committee shall require the Respondent to be evaluated by the Kentucky Lawyer’s Assistance Program (KYLAP), and if appropriate, impose additional requirements before or after reinstatement.
3. Pursuant to SCR 8.890, Charles C. Leadingham shall send letters to all Courts in which he has matters pending, if any, and to all clients whom he is actively representing, if any, within ten days of this Opinion and Order, notifying them of his inability to continue to represent them and advising them of the necessity of retaining new counsel. Charles C. Leadingham shall also provide a copy of such letters to the Director of the KBA and cease advertising activities, if any.
4. Pursuant to SCR 3.450, Charles C. Leadingham is ordered to pay all restitution, fines, and costs of all his disciplinary proceedings, and the costs of this disciplinary proceeding, said sum being $253.27, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . KBA File No. 17650.

      . 2006-CA-002327-MR.

      . 2008-CA-000655-MR.

      . Kentucky Bar Ass'n v. Leadingham, 302 S.W.3d 79 (Ky.2010).

      . Kentucky Bar Ass’n v. Leadingham, 281 S.W.3d 284 (Ky.2009).

      . Kentucky Bar Ass’n v. Leadingham, 269 S.W.3d 419 (Ky.2008).

      . Leadingham v. Kentucky Bar Ass’n, 44 S.W.3d 374 (Ky.2001).

      . Pursuant to SCR 3.510(2).

      . 302 S.W.3d 79.


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Irwin Jay KATZ, Respondent.
    No. 2010-SC-000092-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
   OPINION AND ORDER

In September 2009, the Delaware Supreme Court suspended Irwin Jay Katz (KBA Member No. 37430) from the practice of law in Delaware for three months, followed by a one-year period of probation. Katz was reinstated in Delaware in January 2010, and he currently remains on probation subject to conditions imposed by the Delaware court. On April 22, 2010, this Court issued an order directing Katz to show cause why he should not be subjected to reciprocal discipline in Kentucky under Supreme Court Rule (SCR) 3.435(4). Katz has not responded to this Court’s show cause order, and he has failed to offer any legal reason why we should not impose identical reciprocal discipline. So we now impose such identical reciprocal discipline as required by SCR 3.435(4).

The KBA asserts without contradiction that the Delaware Supreme Court’s decision to sanction Katz was based upon the following facts:

In 2005 and 2006[, Katz] worked as counsel for Robert G. Lubach, during which time he prepared loan documents for Mr. Lubach as a lender.... In April 2005[,] Arthur Cross (“Cross”) and John Smith retained [Katz] to help with their debt problems and to assist with estate problems. In October 2006, [Katz] referred Cross to Lubach to obtain a loan. In 2005 and 2006, [Katz] drafted the documents and performed closings for four (4) loans from Lubach to Cross. In each case, [Katz] failed to provide a disclosure and obtain informed consent from Cross. [Katz] prepared each of the four notes, and each contained payment provisions that violated federal law. [Katz] also failed to inform Cross of the right to rescind the loan....
In 2006, [Katz] was contacted by other individuals seeking loans from Lubach. Lubach had referred them to [Katz]. [Katz] prepared the documents and performed closings for three (3) loans for Timothy and Michelle Brewer, Lance and Maria Bruce[,] and Ms. Karlo Baze-more. In each case, [Katz] took attorneys’ fees from the borrower, he failed to provide any disclosure [or] obtain informed consent before the closing, the notes prepared by [Katz] contained payment provisions in violation [of] federal law, and [Katz] failed to inform each of the borrowers of their right to rescind the loan....

The Delaware Supreme Court found that Katz’s inclusion of payment terms violating federal law in each of the notes was an unintentional act apparently caused by Katz’s failure to research applicable law about consumer loans and his improper use of documents he had previously used for commercial loans. It noted that Katz had earned two advanced degrees in tax law, had prior experience teaching in law school, and had seven years of private practice in Kentucky; and, thus, it considered this “substantial experience” as an aggravating factor following ABA standards utilized by the Delaware Supreme Court.

The Delaware Supreme Court concluded that Katz had violated the following provisions of the Delaware Rules of Professional Conduct: Rule 1.1, which requires that a “lawyer shall provide competent representation to a client” (akin to Kentucky SCR 3.130-1.1); Rule 1.4(b), which requires that a “lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” (akin to SCR 3.130 — 1.4(b)); Rule 1.7(a) & (b) requiring that a lawyer not represent clients with conflicting interests unless informed consent is given (akin to SCR 3.130-1.7); and Rule 1.16(a), which prohibits representation of a client in violation of the Rules of Professional Conduct or other law — specifically, in violation of Delaware interpretative guidelines regarding residential real estate transactions. Although Kentucky’s Supreme Court rules do not contain a similar guideline specifically regarding real estate transactions, the KBA submits — and Katz has not contested— that Katz’s violation of conflict of interest rules also resulted in violation of SCR 1.30-1.16(a).

The Delaware Supreme Court rejected as inadequate the recommendation of the Delaware Board on Professional Responsibility that Katz be subjected to a public reprimand with probation for one year. Instead, it suspended Katz from practicing for three months and placed him on probation for a period of one year.

Under SCR 3.435(4), Katz is subject to identical discipline within this Commonwealth unless he “proves by substantial evidence: (a) a lack of jurisdiction or fraud in the out-of-state disciplinary proceeding, or (b) that [the] misconduct established warrants substantially different discipline in this State.” We further note that under SCR 3.435(4)(c): “In all other respects, a final adjudication in another jurisdiction that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this State.”

Because Katz has failed to show cause why identical reciprocal discipline should not be imposed, this Court must address whether the identical reciprocal discipline shall be imposed as of the date of this Court’s order or whether the identical reciprocal discipline shall be imposed retroactively as of the date of the Delaware Supreme Court’s order. While recognizing that this Court has discretion to determine whether to impose reciprocal discipline retroactively, the KBA draws our attention to the fact that Katz failed to report to the KBA his discipline, in violation of SCR 3.435(1). Instead, the KBA learned of Katz’s Delaware discipline from the Delaware Office of Disciplinary Counsel. And Katz has ignored our show cause order.

Under the facts of this case, we believe that Katz’s misconduct, as well as his failure to report independently the Delaware disciplinary proceedings to the KBA, warrants our imposing a suspension that begins with the date of this order.

Pursuant to SCR 3.435, the Court ORDERS:

1) Irwin Jay Katz is suspended from the practice of law in the Commonwealth of Kentucky for three months from the date of entry of this Opinion and Order. At such time as his suspension expires and he is reinstated to the practice of law in Kentucky, Katz shall be on probation for one year, with the understanding that any further violations of our Supreme Court Rules within that time period may be sufficient for reconsideration and escalation of the sanctions imposed by this order;

2) Katz shall notify all courts in which he has matters pending and all clients for whom he is actively involved in litigation or similar legal matters of his suspension, as required by SCR 3.390; and

3) In accordance with SCR 3.450, Katz shall pay all costs associated with these disciplinary proceedings against him, and for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . These conditions include attending a Continuing Legal Education (CLE) program on ethics, cooperation with a practice monitor, submission of written reports by Katz and the practice monitor to Delaware disciplinary counsel, cooperation in the expedited handling of any further disciplinary matters, assisting a court-appointed receiver for his law practice, making arrangements to protect clients’ interests, paying costs for the disciplinary proceeding, and cooperation with disciplinary counsel in complying with the Delaware Supreme Court Opinion.


author: MOORE, Judge:

text:
    Mark KELSAY, Appellant, v. Trade CARSON, Appellee.
    No. 2009-CA-002175-ME.
    Court of Appeals of Kentucky.
    July 16, 2010.

      Samuel Todd Spalding, Lebanon, KY, for appellant.
    Patrick S. McClure, Danville, KY, for appellee.
    Before MOORE and THOMPSON, Judges; WHITE, Senior Judge.

      . Senior Judge Edwin White, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

MOORE, Judge:

Mark Kelsay appeals from an order of the Boyle Family Court, which made Tracie Carson the primary residential custodian over the parties’ minor child. After careful review of the record, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mark and Tracie are the parents of one minor child, Caitlyn Kelsay, born on February 17, 2000. Mark and Tracie were never married. Pursuant to an order of the Boyle Family Court entered August 17, 2004, the parties were awarded joint custody of Caitlyn with Mark being designated as the residential custodian.

On October 22, 2008, Tracie filed a motion requesting that the custody of Caitlyn be awarded to her. A hearing was subsequently held on July 10, 2009. Following the hearing, the family court found that there had been a change in circumstances which re-established a past pattern of conduct for Mark, specifically Mark’s trouble with alcohol consumption. While the family court heard evidence in favor of Mark continuing in his residential custodian status, specific evidence was presented that Mark received two driving under the influence convictions (DUIs) within the 18 months preceding the hearing. Mark also had an alcohol intoxication charge and a history of four other DUIs, with the latter two coming with extremely high blood alcohol levels.

During the hearing, the family court inquired as to how Mark thought the matter should be dealt with and what he could do to assure the court that placing Caitlyn with him would not be contrary to the child’s best interest. In response, Mark testified only that he never drank around Caitlyn and that he was again seeking help for his alcohol addiction. However, the family court was unconvinced that his issues with alcohol would not re-emerge in the future, and consequently continued joint custody, but made Tracie the primary residential parent of Caitlyn. This appeal followed.

II. ANALYSIS

Mark contends that the family court erred in modifying the joint custody agreement because Tracie failed to produce evidence that would warrant such modification. We disagree.

In reviewing the matter at issue, we observe that visitation or time-sharing may be modified pursuant to Kentucky Revised Statute (KRS) § 408.320, and custody may be modified pursuant to KRS § 403.340. The distinction between a visitation/time-sharing motion and a custody motion has been explained by our Supreme Court in Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008).

In Pennington, the Court stated as follows:

The obvious problem is that parties often ask for one thing when they are actually seeking the other, due to the unique nature of their shared (joint) custody or split (sole) custody. Courts have struggled ever since the concept of joint custody emerged with what part physical or residential possession of the child plays in each type of custody.

Id. at 767 (footnote omitted).

The Pennington court also stated that “the first question on a custody modification ... is, ‘[i]s the motion actually seeking modification of custody or visitation/time-sharing?’” Id. at 768. Answering this question, we believe that the present matter involved a modification of visitation rather than custody. Notably, the family court ordered that joint custody would continue with the change from Mark to Traeie as primary residential custodian. It is significant that the family court changed the primary residential custodian; therefore, our analysis focuses on the meaning of the designation of the primary residential custodian.

In Pennington, the Kentucky Supreme Court discusses that, since Kentucky became a no-fault divorce state, joint custody arrangements have attained equal status with sole custody arrangements and that “custodial arrangements have become increasingly amorphous.” Id. at 764. The Court further stated:

Though it is often stated that there are two categories of custody, sole custody and joint custody, there is in practice a subset of joint custody that combines the concept of joint custody with some of the patterns of sole custody — often called “shared custody.” In shared custody, both parents have legal custody that is subject to some limitations delineated by agreement or court order. Unlike full joint custody, time sharing is not necessarily flexible and frequently mirrors a typical sole custody pattern where the child may live with one parent during the week and reside with the other on alternate weekends. The weekend parent does not have “visitation,” a sole custody term which is frequently misused in this context, but rather has “time-sharing,” as he or she is also a legal custodian. However, in practice, the terms visitation and time-sharing are used interchangeably. Additionally, one parent may be designated the “primary residential parent,” a term that is commonly used to denote that the child primarily lives in one parent’s home and identifies it as his home versus “Dad’s/Mom’s house.” This concept is frequently misnamed “primary residential custody.”

Id. at 764-765.

In the present case, Traeie originally filed a pleading styled “Motion to Change Custody.” The reality of the family court’s decision, however, -was to deny the Motion to Change Custody and to modify time-sharing within the joint custody arrangement. As Traeie does not raise the denial of her Motion to Change Custody as an issue in this appeal, she concedes that the substance of her motion reflects that she was actually seeking to be named the primary residential parent. It should be noted here that the family court used the phrase “primary residential custodian” when it apparently meant “primary residential parent.”

Under Pennington, then, Tracie’s request was a motion to modify the parties’ visitation/time-sharing arrangements and, as previously mentioned, is governed by KRS § 403.820, which states:

(3) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health.

Therefore, Tracie was required to demonstrate only that modification would serve the best interest of Caitlyn.

Thus, the question becomes whether the family court erred in concluding that the designation of Tracy as primary residential parent was in the best interests of Caitlyn. Our review is governed by Kentucky Rules of Civil Procedure (CR) 52.01, which provides, in relevant part: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Findings of fact are clearly erroneous only if they are manifestly against the weight of the evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky.2008); Wells v. Wells, 412 S.W.2d 568, 571 (Ky.1967). “When an appellate court reviews the decision in a child custody case, the test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Frances, 266 S.W.3d at 756.

Here, the family court did not base its decision on KRS § 403.320; instead it based its decision on the factors listed under KRS § 403.340 and KRS § 403.270, both of which employ a best interest standard in making determinations of custody and modification of custody. While the family court did not utilize the correct statute in determining the modification of visitation/time-sharing in this case, it did follow the same best interest standard that governs KRS § 403.320.

Further, there was evidence presented to the family court that Caitlyn’s best interests would be served by Tracie becoming the primary residential parent. The evidence presented proved that Mark has had a total of eight known violations regarding alcohol within the life of the child, including six DUIs. Two of these DUIs occurred since the last custody order in August 2004 with blood alcohol levels of at least four times the legal limit.

The family court also gave Mark the opportunity to explain his alcohol addiction and to ensure to the court that placing Caitlyn with him would not be contrary to the child’s best interest. Mark testified that he never drank around Caitlyn and was seeking help, but completely failed to supply the family court with assurances that his alcohol issues would not arise again in the future after repeated relapses in the past. It is obvious from watching the video of the hearing and reviewing the record, that the family court was not satisfied with Mark’s explanation or credibility; as such, we are compelled to rely on the family court’s observations.

As this case hinges on modification of visitation/time-sharing, not custody, it falls under the purview of KRS § 403.320. This statute states that visitation/time-sharing may only be modified upon a proper showing that “modification would serve the best interests of the ehildf.]” KRS § 403.320(3). Here, we believe the family court properly considered the evidence listed previously that demonstrated that it was “in the best interest of the child” that Tracie become the primary residential parent. We cannot say that the family court’s findings were clearly erroneous or that it abused its discretion in making such a ruling.

Accordingly, the order of the Boyle Family Court is affirmed.

ALL CONCUR.


author: LAURA DENVIR STITH, Judge.

text:
    The SCHOOL DISTRICT OF KANSAS CITY, Missouri, et al., Appellants, v. STATE of Missouri, et al., Respondents, and Missouri Charter Public School Association, Respondent.
    No. SC 90323.
    Supreme Court of Missouri, En Banc.
    Aug. 3, 2010.

      Allan V. Hallquist, Michael E. Norton, Hayley E. Hanson and Derek Teeter, Husch Blackwell Sanders LLP, Kansas City, for Appellants.
    State Solicitor James R. Layton, State Solicitor, Attorney General’s Office, Jefferson City, for the State.
    Charles W. Hatfield and Khristine A. Heisinger, Stinson Morrision Hecker LLP, Jefferson City, for Respondent.
   LAURA DENVIR STITH, Judge.

The Kansas City Missouri School District (“KCMSD”) and three individual taxpayers of the district appeal the trial court’s rejection of their claims that the charter schools act, as amended in 2005: (1) violates Mo. Const. Art. X, § 11(g) by allegedly permitting some of the KCMSD’s local tax levy to go to the local educational agency (LEA) charter schools in the district; and (2) violates Mo. Const. ART. X, §§ 16, 21 — the “Hancock Amendment”— by allegedly placing a new, unfunded mandate on the KCMSD and because it led to a reduction in the absolute amount of state funding of the KCMSD’s existing programs as the number of students attending KCMSD schools decreased.

The charter schools act does not require a direct or indirect transfer of funds from the KCMSD to any of the LEA charter schools in the district. While the amount of state funds paid to the KCMSD per pupil pursuant to the foundation formula is reduced by an amount equivalent to the amount the state pays to these district charter schools per pupil based on the local levy, the money paid to these charter schools is state money, not locally levied funds. Second, even were the calculation used by the legislature considered to be an indirect transfer of locally levied funds to district charter schools, section 11(g) permits use of the monies locally levied under it for all “school purposes of the district.” Missouri law is clear that the charter schools within the KCMSD are public schools of the district and, therefore, their use of the levy for school purposes for children of the district is not barred by section 11(g). For these and the other reasons set out herein, the charter schools act does not violate section 11(g).

This Court also finds the charter schools act does not authorize an unfunded mandate. While the General Assembly has authorized charter schools, that authorization did not require a new or increased activity on the part of the KCMSD. Further, the trial court did not err in concluding that the KCMSD improperly included discretionary spending and federally mandated spending in its cost basis and failed factually to meet its burden of showing that the state decreased its proportion of funding state-mandated programs beyond that permitted by the Hancock Amendment. Accordingly, the judgment of the trial court is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1998, the legislature enacted the charter schools act. See §§ 160.400-.420, RSMo Supp.2009. As relevant here, these statutes authorize the creation of charter schools in metropolitan or urban school districts, which by statutory definition include the KCMSD. § 160.400.2. Beginning with the 1999-2000 school year, the first charter schools started operating within the KCMSD.

A charter school is an “independent public school.” § 160.400.1 (emphasis added). Charter schools may be sponsored by “[t]he school board of the district” in which they are located or by certain public four-year colleges or universities, community colleges, or private four-year colleges or universities, § 160.400.2(1) to (4), or, under some circumstances, by the state board of education. § 160.405.2.

Just as with traditional public schools, a public charter school “shall enroll” all resident pupils who apply from “the district in which it operates” and “[njonresident pupils eligible to attend a district’s school under an urban voluntary transfer program. ...” § 160.410.1(1), (2) (to the extent space is available). “For the purposes of calculation and distribution of state school aid under section 163.031, RSMo, pupils enrolled in a charter school shall be included in the pupil enrollment of the school district within which each pupil resides.” § 160.415.1. “A charter school may not charge tuition, nor may it impose fees that a school district is prohibited from imposing,” § 160.415.10, nor may it accept any “grant, gift or donation ... if it is subject to any condition contrary to law applicable to the charter school or other public schools....” § 160.415.13.

This suit involves the lawfulness of the charter school funding mechanism adopted in 2005 for any charter school that has declared itself to be a LEA. Such LEAs:

shall receive from the department of elementary and secondary education an annual amount equal to the product of the charter school’s weighted average daily attendance and the state adequacy target, multiplied by the dollar value modifier for the district, plus local tax revenues per weighted average daily attendance from the incidental and teachers funds in excess of the performance levy as defined in section 163.011, RSMo, plus all other state aid attributable to such pupils.

§ 160.415. The KCMSD’s concern with the funding mechanism for LEAs arises from the fact that from the date of July 1, 2006, when each charter school operating within the boundaries of the KCMSD declared itself a LEA, the state has provided funds directly to the LEAs within the KCMSD based on the number of pupils attending such LEAs, according to the statutorily-required formula, which considers both charter school attendance and an amount of local tax revenue allocable to those pupils who attend public charter schools. The act does not require any such local tax revenue to be sent to charter schools, but it does provide for a reduction in state funding by an amount equivalent to that the state provides to the public charter schools in the district that are educating students of the district.

Believing that the funding of LEA charter schools under the 2005 amendments is unconstitutional, the KCMSD and three individual taxpayers of the district filed suit against the state of Missouri, the department of elementary and secondary education, the state board of education and the commissioner of education in her official capacity. The Missouri Charter Public School Association intervened as a defendant. The suit alleges that sections 160.400 to .420 as amended in 2005 are unconstitutional on three grounds:

• Section 160.415 is alleged to permit some local property tax dollars to go to charter schools and thereby violates Mo. Const. Art. X, § 11(g);
• The charter schools act created a new program of independent LEA charter schools that the state did not fund and that allegedly thereby constituted a new, unfunded state mandate in violation of Mo. Const. Art. X, §§ 16, 21 (the “Hancock Amendment”); and
• As amended in 2005, the charter schools act has led to a reduction in the absolute amount of state funding of the KCMSD’s existing programs as the number of students attending KCMSD schools has decreased; the KCMSD maintains this also violates the Hancock Amendment.

The trial court found the challenged sections of the amended charter schools act do not violate the above-mentioned Missouri constitutional provisions. The KCMSD and the three individual taxpayers appeal. Because the validity of a statute is at issue, appeal is directly to this Court. Mo. Const. Art. V, § 3.

II. STANDARD OF REVIEW

As the decision below involves the constitutional validity and construction of state statutes, this Court’s review is de novo. Bd. of Educ. of City of St. Louis v. Mo. State Bd. of Educ., 271 S.W.3d 1, 7 (Mo. banc 2008); Gash v. Lafayette County, 245 S.W.3d 229, 231 (Mo. banc 2008). “A statute is presumed to be constitutional and will not be invalidated unless it ‘clearly and undoubtedly’ violates some constitutional provision and ‘palpably affronts fundamental law embodied in the constitution.’ ” Bd. of Educ. of City of St. Louis v. State, 47 S.W.3d 366, 368-69 (Mo. banc 2001) (internal citations omitted). “Doubts will be resolved in favor of the constitutionality of the statute.” Mo. Prosecuting Attorneys and Circuit Attorneys Ret. Sys. v. Pemiscot County, 256 S.W.3d 98, 102 (Mo. banc 2008). “The person challenging the validity of the statute has the burden of proving the act clearly and undoubtedly violates the constitutional limitations.” Franklin County ex rel. Parks v. Franklin County Comm’n, 269 S.W.3d 26, 29 (Mo. banc 2008), citing, Trout v. State, 231 S.W.3d 140, 144 (Mo. banc 2007).

To the extent the claims involve eviden-tiary issues, the trial court’s determination of those issues will be affirmed “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), accord, Watson v. Mense, 298 S.W.3d 521, 525 (Mo. banc 2009). “The trial court is free to believe or disbelieve all, part or none of the testimony of any witness.” Watson, 298 S.W.3d at 525-26, citing, T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). “When determining the sufficiency of the evidence, an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court’s decree and disregard all contrary evidence.” Watson, 298 S.W.3d at 526.

III. SECTION 160415 DOES NOT VIOLATE ARTICLE X, SECTION 11(g)

The KCMSD first argues that the 2005 amendments to the Charter Schools Act violate article X, section 11(g) of the Missouri Constitution. Adopted by the voters in April 1998, section 11(g) states:

The school board of any school district whose operating levy for school purposes for the 1995 tax year was established pursuant to a federal court order may establish the operating levy for school purposes for the district at a rate that is lower than the court-ordered rate for the 1995 tax year. The rate so established may be changed from year to year by the school board of the district. Approval by a majority of the voters of the district voting thereon shall be required for any operating levy for school purposes equal to or greater than the rate established by court order for the 1995 tax year. The authority granted in this section shall apply to any successor school district or successor school districts of such school district.

Mo. Const. ÁRt. X, § 11(g) (emphasis added).

The KCMSD is the only school district “whose operating levy for school purposes for the 1995 tax year was established pursuant to a federal court order.... ” Id. Section 11(g) applies to it and determines the upper dollar limit that the KCMSD may authorize as an operating levy without approval of the voters of the district. The KCMSD notes that it is the only school district subject to section 11(g) and that its board is directed to set the operating levy. This must mean, it argues, that section 11(g) was enacted specifically and solely for the benefit of the KCMSD itself (which had been found to be providing an inadequate education to students of the district), rather than for the benefit of the students of the district whether attending KCMSD schools or other public schools of the district. Therefore, the KCMSD argues, the Missouri General Assembly is prohibited by section 11(g) from enacting laws that would pay any local revenue collected under the authority of section 11(g) to any entity other than the KCMSD. To the extent that the charter schools act, directly or indirectly, permits funds levied under section 11(g) to be paid to one or more charter schools, the KCMSD argues, it is invalid under section 11(g).

In considering this argument, the Court starts from the premise that “[t]he fundamental purpose of constitutional construction is to give effect to the intent of the voters who adopted the Amendment.” Keller v. Marion County Ambulance Dist., 820 S.W.2d 801, 302 (Mo. banc 1991), citing, Boone County Court v. State, 681 S.W.2d 321, 324 (Mo. banc 1982). “In arriving at the intent and purpose the construction should be broad and liberal rather than technical, and the constitutional provision should receive a broader and more liberal construction than statutes.” State Hwy. Comm’n v. Spainhower, 504 S.W.2d 121, 125 (Mo.1973), citing, Rathjen v. Reorganized Sch. Dist. R-II, 365 Mo. 518, 284 S.W.2d 516, 524 (1955).

A. No Direct Transfer of Funds Occurs

The KCMSD does not place much emphasis on the argument that the charter schools act requires a direct transfer of funds from it to any charter school; in fact, by its terms, the act does not provide for any such direct transfer of funds to LEAs. Further, the KCMSD admits that, as a factual matter, it does not transfer funds it collects pursuant to the local levy authorized by section 11(g) to any LEA charter school. The argument that there is a direct transfer of funds in alleged violation of section 11(g) is without merit.

B. No Improper Indirect Transfer of Funds Occurs

The KCMSD alternatively argues that the charter schools act authorizes an indirect transfer of funds from it to charter schools within the district in violation of section 11(g). This argument is similarly without merit for multiple reasons.

First, the fact that the KCMSD’s state funding is reduced by an amount equivalent to the funding provided by the state to charter schools within the district that have declared themselves to be LEAs does not constitute an indirect or “effective” transfer of funds from the KCMSD to such charter schools. No money actually is transferred from the KCMSD to any charter school; it keeps the money raised by the local levy.

While the amounts locally levied are considered by the state in determining the amount of state funds provided to either the KCMSD or to charter schools in the district, no local money is used for this purpose. The portion of state funds allocated to the KCMSD is not required constitutionally to be segregated or specially set aside for it. State monies are fungible; they cannot be traced to any particular source of funds, nor may they be carved out for use for any particular purpose unless authorized by law. “This is upon the theory that money acquired by the state or county by taxation is not the private property of any county or school district, but is the property of the state, which may be used for any public purpose the Legislature may deem wise.” State ex rel. Clark v. Gordon, 261 Mo. 631, 170 S.W. 892, 895 (1914). Nothing in section 11(g) addresses how the state is to determine the amount of state funds to send to the KCMSD or to other public schools in the district, including charter schools. Nothing in section 11(g) prohibits the state from considering other revenue sources of the KCMSD, or whether students in the district are being educated by public charter schools rather than by the KCMSD in deciding the amount of state revenue to send to the KCMSD, as opposed to the charter public schools of the district that also are educating district students. As this Court noted in Franklin County, except for the limitations imposed by the Missouri or federal constitutions, “the power of the State Legislature is unlimited and practically absolute.” 269 S.W.3d at 31.

Second, even were the calculation used by the legislature considered to be such an indirect transfer, section 11(g) nowhere states that all monies collected under the levy must be paid to the KCMSD and that no levied funds may be paid to other public schools of the district, as the KCMSD suggests. While the legislature did use the amount of the levy raised by “local effort” as an element in the formula for calculating payments to the local charter schools, nothing in section 11(g) prohibits it from doing so for pupils who choose to attend a charter public school of the district rather than to attend a public school operated by the KCMSD. Indeed, to pay state revenue to the KCMSD for a student whom it is not educating rather than to the charter school that is undertaking that pupil’s education would seem to reduce the funding available to educate students in schools in the district, thereby undercutting the very purpose of section 11(g).

Further, had section 11(g) been intended to limit funding to the schools run by the KCMSD school board, it easily could have mentioned the KCMSD specifically by name or description, as section 11(g) does elsewhere when it refers to the “school board of any school district whose operating levy for school purposes for the 1995 tax year was established pursuant to a federal court order.” Mo. Const. Art. X, § 11(g). Rather than specifying that all funds are to go to the KCMSD, however, section 11(g) instead broadly authorizes use of the funds raised by the levy “for school purposes of the district.”

While the Constitution does not define the term “school purposes for the district,” “[t]he words ‘school purposes’ are general words and the meaning of the term must be construed broadly and in accordance with their plain and ordinary meaning, unless some good reason, consistent with the purpose of the constitutional provision, otherwise appears.” Rathjen, 284 S.W.2d at 524. Nothing in the language of section 11(g) manifests an intent to depart from the plain and ordinary meaning of the words used in it: Funds collected by the levy may be used for school purposes by schools of the district.

The final sentence of section 11(g) confirms that the provision plainly is intended to survive changes in the structure, geography and/or composition of the KCMSD, stating that the levy authority “granted in this section shall apply to any successor school district or successor school districts of such school district.” Mo. Const. Art. X, § 11(g)-

The broadly worded phrase used in section 11(g) must be interpreted liberally to accomplish the purposes of the voters. Spainhower, 504 S.W.2d at 125.

A principle of construction that should be kept in mind is that while the construction of constitutional provisions should be neither liberal nor strict, it is quite generally held that in arriving at the intent and purpose the construction should be broad and liberal rather than technical, and the constitutional provision should receive a broader and more liberal construction than statutes.... The reason is, a constitution is expected to be effective over a longer period of time, and its method of revision or amendment is more cumbersome than the legislative process.

Rathjen, 284 S.W.2d at 524. “This Court is not free to add limitations on the legislature’s authority regarding taxation and revenue that are not enumerated in the Missouri Constitution or the United States Constitution ... and it will not do so here.” Franklin County, 269 S.W.3d at 31.

Section 11(g) says the levied funds are to be used for school purposes of the district. The plain language of the charter schools act states that charter schools are public schools. § 160.410.1(1). It says that a charter school “shall enroll” all resident pupils “in the district in which it operates” as well as “[n]onresident pupils eligible to attend a district’s school under an urban voluntary transfer program.” § 160.410.1(1), (2). Further, “[f]or the purposes of calculation and distribution of state school aid under section 163.031, RSMo, pupils enrolled in a charter school shall be included in the pupil enrollment of the school district within which each pupil resides.” § 160.415.1.

As is evident, while the KCMSD operates many public schools in the district, it does not operate the only public schools in the district. Charter schools that are LEAs are also public schools of the district. They are not barred by section 11(g) from using levied funds, although in fact they do not do so but instead are sent state revenue equivalent to what they otherwise would be entitled to receive per pupil from locally levied funds. The KCMSD’s arguments that charter schools are not engaging in “school purposes of the district” when educating pupils of the district are without merit.

The KCMSD says this construction of section 11(g) must be incorrect because there were no charter schools when section 11(g) was adopted, and, therefore, section 11(g) could not have been intended to include charter schools. But this ignores the fact that the language the voters adopted in section 11(g) shows they did broadly authorize use of the levy for all forms of school purposes of the district and did not limit use of the funds to the KCMSD school board’s use. The KCMSD’s argument also ignores the fact that the charter schools act was introduced and passed during the 1998 legislative session and was signed by the governor on June 23 of that year, becoming effective August 28, 1998, while article X, section 11(g) was proposed in 1997 by a House Joint Resolution and adopted by the people at an election held on April 7, 1998. Therefore, the people would have been aware of the contemporaneous nature of the charter schools act and section 11(g). As this Court noted in Rathjen:

A contemporaneous legislative construction is entitled to and will be given serious consideration by the court in determining the meaning of an ambiguous constitutional provision, both as a matter of policy and also because it may be presumed to represent the true intent of the instrument. State ex rel. City of Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078, 1081 [ (1921) ]; State ex rel. O’Connor v. Riedel, 329 Mo. 616, 46 S.W.2d 131 [(1932)]; State ex inf. Hadley ex rel. Wayland v. Herring, 208 Mo. 708, 106 S.W. 984 [(1907)]. The General Assembly, in framing the 1950 amendment and the act to implement it, as well as the 1945 constitutional provision, must be presumed to have known the problems presented which indicated the desirability of an amendment, and to have drawn the amendment in a way to prevent or remedy the difficulty. Koontz v. City of St. Louis, Mo., 84 S.W.2d 131 [ (Mo.1935) ]; Lovins v. City of St. Louis, 336 Mo. 1194, 84 S.W.2d 127 [ (1935) ]; State ex rel. City of Boonville v. Hackmann, 293 Mo. 313, 240 S.W. 135 [ (1922) ]; State ex rel. City of Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078, 1080 [ (1921) ]; 16 C.J.S., Constitutional Law, § 16, pp. 52, 53.
The General Assembly, unless restrained by the constitution, is vested, in its representative capacity, with all the primary power of the people. Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, 205 S.W. 196, 197 [(1918)]. In view of this fact, great deference should be had for the fact that the legislature made no distinction between ‘school purposes’ and ‘district purposes’ at any time when dealing with this section. In considering contemporaneous legislative construction, this court, in the case of State ex rel. O’Connor v. Riedel, supra, held, 46 S.W.2d loc. cit. 134: ‘Though not conclusive, such interpretation is entitled to great weight and should not be departed from unless manifestly erroneous.’

Rathjen, 284 S.W.2d at 526.

Similarly, there is no merit to the KCMSD’s argument based on federal court approval of the state’s settlement of the KCMSD desegregation suit. In 1996, the KCMSD and the state reached an approved settlement of a desegregation suit against them. In Jenkins v. Missouri, 122 F.3d 588, 603 (8th Cir.1997), the Eight Circuit describes the joint resolution that submitted what is now section 11(g) to the voters for approval as “a constitutional amendment [meant] to allow the KCMSD to maintain the levy at its present level with district voter approval, thereby providing a means for continued financial support of the KCMSD independent of court order after the KCMSD is no longer under court supervision.” Id. This language merely states a fact not in dispute: The KCMSD receives funding via the levy. It does not state that under the amendment — not yet enacted at the time Jenkins was decided — only the KCMSD and not other public schools of the district educating students of the district in the district could receive the funding. Neither did it state that such funding could not be considered by the state in determining what additional state funding to provide the district where, as here, numerous students of the district now go to other public schools — charter schools — of the district. Indeed, the KCMSD was itself a defendant, not a plaintiff, in the underlying desegregation litigation, which was brought for the benefit of the students of the district, not for the benefit of the KCMSD per se. As noted above, section 11(g) contemplates that one or more districts may take the place of the KCMSD. Nothing in section 11(g) or Jenkins suggests the contrary.

Finally, the Court notes that the KCMSD’s current argument that the transfer of funds is not authorized by section 11(g) is inconsistent with the fact the KCMSD itself transferred funds to charter schools of the district without protest from 1999 until 2006 and actually served as the sponsor of two district charter schools during much of that period, indicating its administrative interpretation of section 11(g) that charter schools serving district students are “schools of the district.” “The administrative interpretation given a constitutional or statutory provision by public officers charged with its execution, while not controlling, is entitled to consideration, especially in case of doubt or ambiguity.” State ex rel. Curators of Univ. of Mo. v. Neill, 397 S.W.2d 666, 670 (Mo. banc 1966) (internal citations omitted); Rathjen, 284 S.W.2d at 526 (“[T]he well-established rule of construction that an interpretation of a statute by public officers charged with its execution, while not controlling upon the courts, is entitled to consideration”).

In sum, under the charter schools act, the KCMSD keeps all local revenue, including that generated under section 11(g). Section 11(g) permits the money raised by the operating levy to be used for school purposes of the district, not just by the KCMSD school board for the schools it operates. School purposes of the district include charter schools because the charter schools are public schools of the district and also operate for school purposes in the district. Rathjen, 284 S.W.2d at 524 (“The unfettered term ‘school purposes,’ connotes an all-inclusive meaning ... ”). The KCMSD has cited no law or constitutional provision prohibiting the legislature from considering that the KCMSD now has fewer pupils on which it must spend the local levy (which has stayed at the same amount since the settlement) in deciding that the KCMSD needs fewer state funds. The fact that the state has adopted a formula for payments to the KCMSD that results in it reducing the payments to the KCMSD by the amount paid to charter schools of the district so as to take into account which schools are educating district students is not prohibited by section 11(g), and, therefore, is not determinative of this appeal.

The KCMSD’s claim that section 160.415 violates article X, section 11(g) fails.

IV. THE TAXPAYERS’ HANCOCK CLAIMS

A. The Hancock Amendment and Standing

Commonly referred to as the “Hancock Amendment,” article X, sections 16 to 24 of the Missouri Constitution “aspire[ ] to erect a comprehensive, constitutionally-rooted shield erected to protect taxpayers from government’s ability to increase the tax burden above that borne by the taxpayers on November 4, 1980.” Fort Zumwalt Sch. Dist. v. State, 896 S.W.2d 918, 921 (Mo. banc 1995). In relevant part, article X, section 16 of the Missouri Constitution states, “The state is prohibited from requiring any new or expanded activities by counties and other political subdivisions without full state financing, or from shifting the tax burden to counties and other political subdivisions.” Article X, section 21 prohibits the state from requiring unfunded new or increased activities or services:

The state is hereby prohibited from reducing the state financed proportion of the costs of any existing activity or service required of counties and other political subdivisions. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the general assembly or any state agency of counties or other political subdivisions, unless a state appropriation is made and disbursed to pay the county or other political subdivision for any increased costs.

Mo. Const. Art. X, § 21.

As stated in Fort Zumwalt, 896 S.W.2d at 921, “By its clear language, Section 23 [of the Hancock Amendment] limits the class of persons who can bring suit to enforce the Hancock Amendment to ‘any taxpayer.’ ” It states in relevant part:

Notwithstanding other provisions of this constitution or other law, any taxpayer of the state, county, or other political subdivision shall have standing to bring suit in a circuit court of proper venue ... to enforce the provisions of sections 16 through 22....

Mo. Const. Art. X, § 23 (emphasis added). Further, “[t]he school district plaintiffs do not, because they cannot, claim status as taxpayers.” Fort Zumwalt, 896 S.W.2d at 921.

As the trial court noted, the KCMSD is without standing to bring actions to enforce article X, sections 16 and 21 because a school district may not claim status as a taxpayer. Id. The individual taxpayer plaintiffs, however, do have standing to bring both Hancock claims.

B. Section 160.lt.15 Does Not Violate the Hancock Amendment

The taxpayers argue section 160.415 of the 2005 act creates an unfunded mandate in violation of article X, sections 16 and 21 in requiring the KCMSD to transfer a portion of its local tax revenue to charter schools. Because, for the reasons noted above, the amendment does not transfer a portion of local tax revenue to charter schools, this argument is without merit.

Even were this not the case, the charter schools act does not authorize an unfunded mandate. The Hancock Amendment’s bar on unfunded mandates can be violated in two ways: either if the state requires a new or increased activity or service of a political subdivision or if the political subdivision experiences increased costs in performing an existing activity or service without receiving additional funding from the state. See Neske v. City of St. Louis, 218 S.W.3d 417, 422 (Mo. banc 2007); Miller v. Dir. of Revenue, 719 S.W.2d 787, 788-89 (Mo. banc 1986). The burden is on the plaintiffs to prove that an unfunded mandate exists by offering “specific proof of new or increased duties and increased expenses, and these elements cannot be established by mere ‘common sense,’ or ‘speculation and conjecture.’ ” Brooks v. State, 128 S.W.3d 844, 849 (Mo. banc 2004), quoting, Miller, 719 S.W.2d at 789.

In Neske, the standard for proof of an unfunded mandate was not met because, while it was more expensive for the city to fund its police retirement system and firemen’s retirement system than it had been in a previous fiscal year, the same formula was used. This did not amount to a new or increased activity funding mandate. 218 S.W.3d at 422. As this Court stated, “The question is whether the City has been mandated to bear new responsibilities in relation to this activity. It has not.” Id. “The City’s requirements to pay are unchanged — the City still is required to pay the entire amounts certified by the PRS and the FRS boards of trustees. There is no new or increased activity.” Id.

On the other hand, this Court found there was an unfunded mandate in Rolla 31 Sch. Dist. v. State of Missouri 837 S.W.2d 1 (Mo. banc 1992). In that case, the department of elementary and secondary education “sent a letter to all Missouri school districts advising them that school districts were obligated to provide special education and related services for disabled three- and four-year-old children beginning with the 1991-92 school year.” Id. at 6. This meant that school districts were required to provide educational services to a new population of district residents, yet they were not provided with the funds to do so, and this constituted an unfunded mandate under Hancock. Id. at 6-7.

This case is more like Neske than Rolla. First, it is clear that while the General Assembly now has authorized charter schools, that authorization did not require a new or increased activity on the part of the KCMSD. It did not require establishment of charter schools at all; it merely authorized them. Before the act, the KCMSD (and other public school districts) were required to provide a free public education to all eligible pupils who attended. This requirement remains. The KCMSD serves no role in funding the charter schools, and their existence does not create or increase any mandate to the district.

Second, plaintiffs are correct that the Hancock Amendment prohibits the state from “reducing the state financed proportion of the costs of any existing activity or service required of counties and other political subdivisions.” Mo. Const. Art. X, § 21. But the KCMSD did not show that the state decreased its proportion of funding of state-mandated programs beyond that permitted by the Hancock Amendment without a vote of the people.

As this Court noted in Fort Zum-walt, to establish a -violation of section 21, plaintiffs “must present evidence to establish the program mandated by the state in 1980-81 and the ratio of state to local spending for the mandated program in that year” and further prove “costs of the mandated program in each subsequent year and the ratio of state to local spending for the mandated program in each subsequent year.” 896 S.W.2d at 922.

It is well-settled that the calculation of a mandated program’s costs “may not include any discretionary expenditures a district undertook that went beyond the state mandate” and requires that plaintiffs clearly distinguish “resources directly committed to the state mandates ... from those not so dedicated.” Id. (emphasis added). “Providing these factors for 1980-81 and each subsequent year ... require[s] sophisticated budgetary evidence and economic expertise.” Id. at 923.

The trial court below was presented with conflicting evidence as to whether increased costs were placed on the KCMSD to perform state-mandated existing activities or services as a result of the charter schools act. “The trial court is free to believe or disbelieve all, part or none of the testimony of any witness.” Watson, 298 S.W.3d at 525-26, citing, T.B.G., 772 S.W.2d at 654.

Here, the trial court found that it could not rely on plaintiffs’ expert’s testimony to the extent her opinions overstated the amount of state-mandated activity and treated variable or semi-variable costs as fixed costs; as a result, plaintiffs did not meet their burden under Fort Zumwalt. This Court will affirm this determination “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy, 536 S.W.2d at 32.

At trial, plaintiffs presented an expert witness who testified as to two possible formulas for determining the applicable ratio of state-to-local spending. Her testimony, if believed, tended to show that the percentage of funding for state-mandated programs decreased since the 1980-1981 school year. The defendants’ evidence, found to be more credible by the trial court, showed that the district’s expert failed to identify the amount of local revenues actually expended on state-mandated activities and expenses as opposed to discretionary ones or expenses imposed by federal requirements such as the No Child Left Behind Act.

For example, the expert considered expenses the KCMSD chose to pay for teacher salaries in excess of the state-mandated minimum teacher salary, yet the KCMSD expert admitted her figures assumed all teacher salary expenses were mandated by the state and further did not reduce the number of teachers in proportion to the reduction in pupils served by the KCMSD. This was improper, as this Court clearly noted in Fort Zumwalt: “For example, to the extent that district finances permitted greater-than-required salary increases for special education instructors, aides, and other personnel, the taxpayers may not include these in the school district portion of the ratio.” 896 S.W.2d at 922-23.

Similarly, state law does not mandate any particular level of spending for benefits for teachers and other employees, nor does state law require spending for FICA and Medicare payments; yet the expert included district-chosen benefits and federally mandated spending in her calculation of state-mandated costs. The KCMSD expert also included all building costs without any deduction for the fact that the KCMSD school board’s own study found that in 2006 the District had excess building capacity and an average utilization rate for its buildings of around 70 percent. She did not address whether such a substantial underutilization is reasonable, and the trial court could have accepted the view of opposing experts that it was improper not to consider the excess cost of such building expenditures to not be state-mandated. The trial court also heard from the charter schools’ expert, who testified discretionary expenditures classified as state-mandated by the KCMSD included inefficient transportation costs.

This is not to suggest that the KCMSD’s additional expenditures were not of benefit to the students of the district; many such discretionary expenditures, as well as those federally required, are undoubtedly important for the proper education of students in the KCMSD. But if expenditures are not mandated by the state, they are not relevant for Hancock purposes. It was within the trial court’s discretion, based on the evidence presented, to determine that state-mandated expenditures, without consideration of discretionary or federally mandated expenditures, did not violate Hancock because the proportion of mandated expenses paid by the state has not decreased

V. CONCLUSION

For all of the reasons stated above, the circuit court’s judgment is affirmed.

All concur.

      . All statutory references are to RSMo Supp. 2009 unless otherwise indicated.

      .As previously enacted, section 160.415.2 had not provided for LEAs. Payments to charter schools, therefore, were to be made through the area school district (in this case the KCMSD), which acted as a disbursal agent. § 160.415.2, RSMo 2000. The payments included, in addition to other federal and state aid:
      an annual amount equal to the product of the equalized, adjusted operating levy for school purposes for the pupils’ district of residence for the current year times the guaranteed tax base per eligible pupil, as defined in section 163.011, RSMo, times the number of the district’s resident pupils attending the charter school plus all other state aid attributable to such pupils, including summer school, if applicable, and all aid provided pursuant to section 163.031, RSMo.
      § 160.415.2, RSMo 2000. Where a charter school is not an LEA, the district remains a disbursal agent. Id.

      . Section 160.415.4 states:
      If a charter school declares itself as a local education agency, the department of elementary and secondary education shall, upon notice of the declaration, reduce the payment made to the school district by the amount specified in this subsection and pay directly to the charter school the annual amount reduced from the school district’s payment.

      . Although initially plaintiffs also had challenged the 2000 act, prior to the date the trial court entered judgment, plaintiffs restricted their challenge to the amended version of the charter schools act enacted in 2005 and now in effect.

      . As the levy set by the federal court was $4.96 per $100, this means that a levy of $4.95 per $100 or less does not need voter approval. The KCMSD has set the levy at $4.95 per $100.

      . This Court repeatedly and consistently has held that the method — the form — an action takes can be essential in determining whether a certain outcome is allowed. See, e.g., Franklin County, 269 S.W.3d at 29-31 (while the Hancock Amendment prohibited a tax levy increase without the approval of voters, it did not require voter approval where an increase in revenue came from other causes, even though the result in both cases was to give the municipality extra funds); C & D Inv. Co. v. Bestor, 624 S.W.2d 835, 837-38 (Mo. banc 1981) (action brought under a statutory section authorizing payment of property taxes under protest based on allegations of discrimination was deemed untimely as it was not a substitute for proper administrative provisions relating to property assessment. "Where, as is the case here, there is no question of overreaching by the taxing authorities, section 139.031 is not a substitute for the administrative provisions relating to the assessment of property for tax purposes. That section may not be used by the taxpayer to avoid the time limitations of [sections] 137.290, 138.090, 138.100, and 138.110”); Beelman Truck Co. v. Ste. Genevieve County Bd. of Equalization, 861 S.W.2d 557, 559 (Mo. banc 1993) (The Interstate Commerce Clause was not violated because an assessor used a proper method of apportioning the value of a fleet of tractor trucks and trailers. Simply put, the assessor’s methods followed statutory requirements; therefore, the assessment was appropriate). Similarly, were it improper to order the KCMSD to make a direct payment equivalent to levied funds per pupil from itself to the public charter schools of the district, that would not prohibit indirect consideration of such funds in determining other state aid to the KCMSD, so long as the method used was not itself prohibited. Such an indirect transfer, should it exist, is not so barred.

      . In addition, the charter school act specifies that charter schools are not to "be held to lower performance standards than other pub-lie schools within a district....” § 160.405.5(6)(c) (emphasis added).


author: DANIEL E. SCOTT, Chief Judge.

text:
    STATE of Missouri, Appellant, v. Ryan S. SMITH, Respondent.
    No. SD 30408.
    Missouri Court of Appeals, Southern District, Division Two.
    July 8, 2010.
    Darrell L. Moore, Prosecuting Atty., Kristen M. Tuohy, Asst. Prosecuting Atty., Springfield, MO, for Appellant.

      Alexa I. Pearson, Columbia, MO, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

The State appeals an order suppressing Defendant’s admissions regarding some 18 burglaries. Only Defendant’s statements are at issue; not the stolen property recovered as evidence when Defendant took officers to his home and authorized them to search his truck and house.

Background

Although Defendant’s motion to suppress listed 12 complaints, Defendant agreed at the hearing that the first 36 minutes of the recorded police interview was admissible, but argued two reasons to suppress his statements after the 36-min-ute mark:

1. That he allegedly requested a lawyer at that point, so questioning then had to stop. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); State v. Bucklew, 973 S.W.2d 83, 91 (Mo. banc 1998).
2. That he allegedly was offered leniency at that point, thus tainting his statements thereafter. See, e.g., State v. Vinson, 854 S.W.2d 615, 620 (Mo.App.1993).

The trial court took the motion under advisement, in part to view the recorded interview, and entered this order three weeks later:

THE COURT HAS REVIEWED THE VIDEO OF THE STATEMENT AND REVIEWED THE TESTIMONY BY THE OFFICER IN COURT. ON THE VIDEO, THE DEFT WAS HANDED A MIRANDA SHEET, ASKED TO READ THE SHEET AND SIGN IT IF HE UNDERSTOOD IT. THE DEFT READ THAT SHEET PERTAINING HIS RIGHTS AND SIGNED IT WITHIN 10 SECONDS. IT TAKES APPROXIMATELY 30 SECONDS TO READ THE MIRANDA SHEET. SINCE HIS MIRANDA RIGHTS WERE NOT READ TO HIM AND SINCE HE COULD NOT HAVE READ THEM ALL IN LESS THEN 10 SECONDS HE WAS NOT ADVISED PROPERLY OF HIS FOURTH AMENDMENTS [sic] RIGHTS. THEREFORE, DEFT’S MOTION TO SUPPRESS IS SUSTAINED.

This legal conclusion, being drawn from a video now before this court in the same form, is not subject to our deference. State v. McMeans, 201 S.W.3d 117, 120 (Mo.App.2006); State v. Love, 134 S.W.3d 719, 722 (Mo.App.2004). See also State v. Nunnery, 129 S.W.3d 13, 17 (Mo.App.2004)(whether constitutional rights were violated is a question of law reviewed de novo). We reverse and remand.

Analysis

Ignoring for the moment the trial court’s disregard of the agreement that the first 36 minutes were admissible, and its finding that the State did not prove one of several issues obviated by such an agreement, we find its “30 second” ruling factually and legally ill-founded. Although Defendant looked at the Miranda form only cursorily — “skimming” might be a fair description — the form was not complieat-ed. Moreover, Defendant controlled how long he read the form, and Defendant decided when he had read it enough. He was given the Miranda form, began reading it, verbally told the officers that he understood his rights, signed the form after reading it for such time as he wished, then immediately got another chance to review the form when it was returned because he had not filled in all the blanks. Defendant offered no evidence at the suppression hearing; did not argue that he was not properly Mirandized, or did not understand his rights, or did not waive his rights voluntarily; and agreed that his statements were admissible until the 36-minute mark when intervening factors allegedly occurred.

The trial court’s ruling suggests that all this fails, as a matter of law, to make even a prima facie showing that Defendant received Miranda warnings if he spent less than 30 seconds reading them. The trial court cited no case so holding, nor has Defendant done so, and we do not believe this is the law.

“The state’s showing that a ‘defendant was informed of his rights, that he was capable of understanding those rights, and that no physical force, threats, promises or coercive tactics were used to obtain the confession,’ is prima facie evidence that the confession given while the defendant was in custody was voluntary.” State v. Johnson, 988 S.W.2d 115, 120 (Mo.App.1999) (quoting State v. Wilkinson, 861 S.W.2d 746, 750 (Mo.App.1993)). “After the state has made a prima facie case, the defendant must produce evidence showing any ‘special circumstance’ that may have rendered the confession involuntary.” State v. Day, 970 S.W.2d 406, 409 (MoApp. 1998). Appellant presented no such evidence. We find that the State met its burden.

Nunnery, 129 S.W.3d at 20. The same is true here. Defendant offered no evidence at the suppression hearing, and the State’s evidence and testimony met its prima facie burden. The State’s point is granted.

We reverse the suppression order and remand for further proceedings.

LYNCH, P.J., and RAHMEYER, J., concur.

      . This appeal is authorized by § 547.200.1(3), RSMo 2000.

      . See U.S. v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004)(failure to give Miranda warnings does not require suppression of physical fruits of suspect's unwarned but voluntary statements).

        .Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Defendant’s signed form, in its entirety, reads as follows:
      SPRINGFIELD POLICE DEPARTMENT STATEMENT OF RIGHTS
      Case Number 09-29261
      You have the right to remain silent.
      Anything you say can and will be used against you in a court of law.
      You have the right to talk to a lawyer before making any statement or answering any question, and you may have him present during questioning.
      If you cannot afford an attorney, one will be appointed to represent you before any questioning, if you wish.
      You can decide at any time to exercise these rights and not answer any questions or make any statements.
      I have had the above statement of my rights read to me, and I fully understand each of them.
      s/Ryan Smith 7/9/09 12:10 Signature Date Time
      Witness s/J Breuer 967

      . Reversing the trial court's ruling, of course, does not necessarily establish admissibility. A pretrial suppression ruling is effectively interlocutory and is subject to change as the case progresses. See State v. Howell, 524 S.W.2d 11, 19 (Mo. banc 1975); State v. Trimble, 654 S.W.2d 245, 254 (Mo.App.1983).