Missouri AG Opinions — 1984

The Health and Educational Facilities Authority organized under Chapter 360, RSMo 1978 & Supp. 1983, is an instrumentality of the state for purposes of 42 U.S.C.S. Section 418 (L.Ed. 1978 & Supp. 1984) and Sections 105.300 to 105.440, RSMo 1978 & Supp. 1983.

A person who served in the General Assembly for two (2) biennial assemblies and who was a regular state employee for seven (7) years before terminating on or after July 1, 1981, is not a fully vested member of the Missouri State Employees' Retirement System under Section 104.335.2(2) of S.C.S.H.C.S.H.B. 1370, Eighty-Second General Assembly, Second Regular Session.

The retirement compensation provided by Section 476.530, RSMo 1978, is fifty percent (50%) of the compensation provided by law at the time the judge in question leaves office.

Opinion letter to The Honorable James W. Murphy

Opinion letter to Mary-Jean Hackwood

An industrial development corporation organized under the Industrial Development Corporations Act, Chapter 349 of the Revised Statutes of Missouri, 1978, as amended, has the power and authority to issue revenue bonds and to loan the proceeds therefrom to a corporation for the purpose of refinancing and extinguishing outstanding indebtedness previously incurred by such corporation in connection with the purchase, construction, extension or improvement of a “project" as defined in the Industrial Development Corporations Act.

Opinion letter to Dr. Shaila Aery

Opinion letter to The Honorable James C. Kirkpatrick

Opinion letter to The Honorable James C. Kirkpatrick

Opinion letter to The Honorable James C. Kirkpatrick

The award of a Missouri student grant to a recipient who intends to undertake a career in religious work does not violate Article I, Section 7, of the Missouri Constitution.

Opinion letter to The Honorable Harry Hill

Opinion letter to Mr. Homer E. Sayad

Persons who sign an initiative petition showing an address different than that at which they were formerly registered are not “legal voters" for purposes of Article , Section 50, Missouri Constitution (1945), nor are they “registered voters" for purposes Section 116.060, RSMo Supp. 1983.

With respect to the chemical testing procedure of Sections 577.020, et seq., RSMo Supp. 1983, for the purpose of determining whether a person was driving a motor vehicle in an intoxicated or drugged condition, that: (1) The legislature has given motorists the right to refuse to take a chemical test, including a blood test, upon arrest for driving while intoxicated, (2) This right to refuse to exercise at any time prior to submitting to the test, (3) Once the individual has clearly and unequivocally indicated his refusal, no test should be conducted, even if the individual initially indicated a willingness to take the test, (4) In the absence of such a refusal so long as a hospital or its employee is taking a blood sample pursuant to the request of a law enforcement officer who has arrested the defendant, the hospital and its employees are immune from liability except for acts which are wanton, willful or grossly negligent, and (5) Sections 577.020 to 577.041, RSMo Supp. 1983, do not diminish or alter the authority of law enforcement officials to require chemical tests of the blood of a person under arrest as outlined in Schmerber v. California, 384 U.S. 757 (1968).

Opinion letter to The Honorable Roger B. Wilson

Opinion letter to The Honorable Carole Roper Park

Opinion letter to John A. Pelzer

A Missouri citizen may use a loan acquired from a non resident alien to buy Missouri farm land when the loan is secured by a deed of trust. In the event of foreclosure, however, the trustee may not convey title to the alien lendor , his agent, trustee, or other fiduciary.

Opinion letter to Paula V. Smith

Section 476.515.2 of S.C.S.H.C.S.H.B. 1370, Eighty-Second General Assembly, Second Regular Session, which provides for benefits for surviving spouses of judges who have remarried and who were not eligible for such benefits prior to the amendment of Section 476.515, is unconstitutional and cannot be given effect. Furthermore, Section 476.515 may not be applied to a surviving spouse of a judge who remarried after October 1, 1984, if the deceased judge ceased to hold office prior to that date.

A parcel or locator number may incorporate by reference an accurate land description in the county recorder of deeds' office, and such constitutes an accurate description of the land for purposes of Section 137.225.2, RSMo 1978.

Missouri law requires the Department of Mental Health to provide special educational services to school-aged, inpatient children who reside outside the school district of their domicile and whose condition renders them unable to leave the Department of Mental Health facility to which they are assigned. The Department of Elementary and Secondary Education has the authority to monitor the provision of educational services by the Department of Mental Health, for compliance with the Education of the Handicapped Act. The Department of Mental Health is required to provide a “due process" hearing either prior to or following the discharge of a school-age child when the Department of Mental Health acts as the educational provider. If the Department of Mental Health is not acting as the educational provider, the local school district or the Department of Elementary and Secondary Education, must provide such due process hearing. The Department of Mental Health need not continue treatment or care of school-age children discharged by the Department of Mental Health pending an “educational discharge" hearing. Section 162.970.4, RSMo, requires the Department of Mental Health to pay the serving district the amount by which the per pupil cost of special educational services exceeds the amount received from the domiciliary district and other state monies for severely handicapped school-age children in facilities or programs of the Department of Mental Health when the child is educated by the local district under Section 162.970.1, supra.

Members of the Missouri State Employees' Retirement System who terminate state employment on or after April 1, 1984, but before October 1, 1984, are not entitled to the benefit of the graded vesting schedule found at Section 104.335.3 S.C.S.H.C.S.H.B. of 1370, Gen. Ass., Reg. .

Water patrolmen have the authority to set up sobriety check points for investigatory stops to determine if boat operators are intoxicated during both daylight and night-time hours, provided that patrolmen do not board any boat for that purpose during nighttime hours. Water patrolmen also have the authority to ask boat operators for certificates of registration and to make arrests for equipment violations determined through observation at sobriety checks conducted during night-time hours.

Opinion letter to The Honorable Patrick Hickey

Opinion letter to The Honorable James F. Antonio,

Opinion letter to The Honorable James R. Strong

Opinion letter to The Honorable David Doctorian

For the purposes of Sections 105.300, et seq., RSMo Supp. 1983, providing for social security tax reporting a municipal judge selected pursuant to Section 479.020, RSMo 1978, is an employee of the municipality. Further, it would not be possible for a municipality to provide for municipal judge services on a contractual basis in a manner as to exempt the municipality from treating such person as an employee for social security reporting purposes.

Legal notices of elections on proposed constitutional amendments should be published for four (4) consecutive weeks in counties having but one newspaper, as is specified in Article , Section 2(b), Missouri Constitution.

Opinion letter to The Honorable Thomas I. Osborne

The State of Missouri has a demonstrable legal interest in the contents of safe-deposit boxes recovered from closed national banks that were located in Missouri prior to closing.

Opinion letter to Dr. Arthur L. Mallory

Opinion letter to Mary-Jean Hackwood

No violation of the Nursing Practice Act occurs when a certified medication technician, who does not hold himself out as a nurse licensed to practice in Missouri, provides care in an Adult Day Health Care Program that is also an Associated Adult Day Health Care Program, so long as the care associated with a licensed long-term care facility is restricted to the administration of medication, excluding injectables other than insulin.

Section 548.243, RSMo Supp. 1983, does not authorize the state to reimburse a sheriff for expenses incurred by an extradition agency in returning a fugitive to Missouri who has waived extradition; and, if the Governor appoints an extradition agency as an agent to receive a fugitive under Section 548.221, RSMo 1978, then such agency could be compensated by the state pursuant to Section 548.241, RSMo Supp. 1983, upon the approval of the Governor.

The Personnel Board of the City of Springfield is part of an administrative agency and, pursuant to Section 610.120, RSMo Supp. 1983, may have access to arrest records closed under Section 610.105, RSMo Supp. 1983.

The laws of the State of Missouri provide adequate authority to the Department of Natural Resources to carry out a program for the control of underground injection wells as described in the Program Description submitted to the EPA and as required by 40 Part 145.

A licensed optometrist may, in the course of examining the human eye, detect the existence of a pathological condition, defect, malfunction or malformation of the human eye. The Department of Social Services must accept the results of an optometric examination to determine a person's eligibility for benefits paid from state funds if the optometrist is authorized by law to perform the examination upon which eligibility is based.

Opinion letter to Dr. Arthur L. Mallory

Opinion letter to Mr. David A. Baird

Opinion letter to The Honorable David L. Steelman

A Missouri, not-for-profit corporation operating as a shelter for victims of domestic violence and receiving funds under Sections 455.200 to 455.230, RSMo Supp. 1983, may use such funds to establish a network of safe homes in private residences. Such funds may be used to provide medical and personal items if such are incident to the residential services and facilities provided by the shelter.

Opinion letter to Mr. Larry Ferrell

Opinion letter to The Honorable Harriett Woods

Opinion letter to The Honorable E. J. Cantrell

Opinion letter to The Honorable Nelson B. Tinnin

The Secretary of State may accept declarations of candidacy received by mail from circuit judges seeking retention pursuant to Article V, Section 25(c)(1), Missouri Constitution.

Opinion letter to The Honorable John A. Birch