linkP.O. Box 414557 • Kansas City, MO 64141

August 2004 • Volume 16 • Number 3www.awl-kc.org

OFFICERS

Megan C. Thornberry, PresidentTracy Powell, President-Elect

The Hon. Kathleen A. Forsyth, TreasurerB. Janeen deVries, Secretary

Tracy Bornman, Asst. SecretaryR. Denise Henning, Imm. Past President

MEMBERS OF THE BOARD

AWARDS & SCHOLARSHIP:Lara Dickey Lewis, Chair

JUDICIAL:Kimberley Fournier, Chair

Diana C. Toman, Vice-Chair

MEMBERSHIP:Anne Post, Chair

Nikki Cannezzaro, Vice Chair

COMMUNITY SUPPORT:Margaret Dean, Chair

Jolie Justus, Vice Chair

SOCIAL ACTIVITIES:Tamie Anfang, Chair

Elle J. Sullivant, Vice Chair

CONTINUING LEGALEDUCATION:

Stacey M. McLey, Chair

BOARD MEMBERS AT-LARGEAllison Bergman

Amanda Pennington KetchumMira Mdivani

Shelley EricssonJennifer Dameron

Lynn Weddle Judkins

©2004 Association for Women Lawyers of Greater Kansas City

Board of Directors City of Kansas City, MO selects first female city prosecutor

DDAATTEE .......... EEVVEENNTTAugust 4..................AWL Networking Breakfast with Legislators

7:30 - 8:30 a.m. (First Watch in Westport)

September 1............AWL Networking Breakfast7:30 - 8:30 a.m. (First Watch in Westport)

September 24..........AWL Golf Tournament12:30 p.m. (Teetering Rocks Golf Course)

October 6................AWL Networking Breakfast7:30 - 8:30 a.m. (First Watch in Westport)

October 14..............Past President’s Reception5:00 p.m. (Shiraz)

November 7.............Networking Breakfast7:30 - 8:30 a.m. (First Watch in Westport)

December 14...........Holiday Party/Judicial Reception/Annual Meeting4:30 p.m. Annual Meeting5:00 p.m. Reception (At home of Nancy Kenner)in

k it

in .

..

Beth Murano was recently appointedCity Prosecutor for Kansas City,Missouri.

Beth is the first woman to serve in thatposition in Kansas City history. As CityProsecutor, she will supervise 25 attorneys,working in the largest municipal court in thegreater metropolitan Kansas City area.

Beth attended Truman State Universitywhere she earned a Bachelor of Arts degreein political science.

She received her Juris Doctor degree, withhonors, from the Drake University School ofLaw in 1995. After graduating from lawschool, she joined a general practice firm inIowa as an associate attorney.

In 1997 she was hired by the city ofKansas City, Missouri as an assistant prose-cutor.

Beth's recent promotion to the position ofCity Prosecutor is a significant developmentin Kansas City history. CongratulationsBeth!

Beth Murano has made history in the Kansas City legal com-munity by being named the City of Kansas City, Missouri’s firstfemale city prosecutor. She took the post recently.

2 the AWL link August 2004

pres

iden

t-el

ect’

s m

essa

geby

Tra

cy P

owel

l

This month, many of us will tune in and watchthe 2004 Summer Olympics in Athens,Greece, on our televisions. The television

broadcasts will provide a front row seat to theseaction packed events. However, what draws me

to watch the Olympics more so than the different sporting events is the per-sonal stories of the competitors and their individual dreams and chal-lenges to "get the gold". A look into the personal lives behindthese world class athletes gives a better understanding andappreciation for the sacrifices they have made to turn theirdreams to reality.

Their hard work, perseverance, and fearlessness to followtheir dreams is truly inspirational.

These athletes and their stories inspire me to look at my ownlife and question the level of mycommitment to my personalgoals and dreams. Like me,many of you may find excusesto put off your dreams,whether due to a perceivedlack of resources, too little time,or simply a fear of the unknown.Whatever the excuse, the end result is that thedream stays just that and gets thrown back intothe "someday" pile.

While dreams do keep us going and make life more interesting, makingthem come trueis even better,and it keeps usfrom living in thefuture. I thinkmost of us realize

how short life is and that "someday" will comebefore you know it.

So, as you watch the Olympic games thissummer, be inspired to take action now,whether it is picking up a pen to write that firstpage of the novel, changing jobs, or spendingmore time with people you love.

Whether you accomplish your goal overnightor take it one step at a time, you will find thatthe fears and the "what if's" are nothing com-pared to "getting the gold".

While dreams do keepus going and makelife more interesting,making them cometrue is even better,and it keeps us fromliving in the future. I think most of usrealize how short life is and that"someday" will comebefore you know it.

Congratulations to…AWL President

Megan Thornberryand AWL member

husband Steve Thornberry

on the birth of their daugh-ter,

Elizabeth LaingThornberry

on July 13, 2004!

Get the gold!

August 2004 the AWL link 3

AWL had another successful year sponsoring three CLEprograms. The first two programs were AWL's signature"lunch CLE programs" at the Central Exchange. The thirdprogram was co-sponsored by AWL and the KCMBAWomen in the Profession Committee.

AWL held its annual CLE program "Professionalism in theProfession: Be Civil or Be Sanctioned" on April 7, 2004.AWL was honored to have The Hon. Justine Del Muro, TheHon. Peggy McGraw and The Hon. Sandra Midkiff discussthe ethical rules and how they should be applied in theircourtrooms. This program was very insightful and gave usa "view from the bench" regarding how to conduct ourselvesin our profession. You won't want to miss this program nextyear!

AWL's second program was titled "Ethical Pitfalls inPublic Service" and was held onMay 6, 2004. Our guest speakerswere Gail Sciacchetano, theGeneral Counsel for UniversityPhysician Associates and JeanPeters-Baker, the ProgramCoordinator for the Sue ShearInstitute for Women in PublicLife. Ms. Sciacchetano discussedthe legal, ethical and fiduciaryduties of attorneys serving onboards and commissions. Ms.Peters-Baker discussed the selec-tion process for public service andthe qualifications that are desiredfor public service positions.

AWL's third program was heldat the KCMBA Headquarters and was titled "Xtreme Successin the Courtroom." We were fortunate to have the "best ofthe best" speak at this CLE on how they have become suc-cessful. Our first panel of speakers, R. Denise Henning,Brad Kuhlman and Ted Green, discussed how they evaluateand analyze the facts and legal issues of a case to determinewhether they should take the case. Anita Porte Robb thenspoke on how to pick your experts and gave some wonder-ful examples of the success experts have played in her cases.Theresa Levings then discussed the advantages of beingboth a defense and plaintiff's attorney and some of herstrategies in preparing her cases.

The seminar concluded with comments from six judgesregarding their "Top Ten" factors that contribute to an attor-ney's success in their courtrooms. The Hon. Edwin Smith,The Hon. Jay Daugherty, The Hon. Thomas Foster, The Hon.Gary Fenner, The Hon. W. Stephen Nixon and The Hon.Larry Harmon all gave us some wonderful tips on what (orwhat not) to do to become a successful trial attorney.

AWL would like to thank each and every one of our speak-ers for their time and effort in making these programs sosuccessful. We would also like to thank our members thatattended and supported the programs and hope you willcontinue to do so in the future.

AWL completes another successful year of continuing legal education programs!

Anita Porte Robb, who also spoke at “Xtreme Success in the Courtroom,” discussedhow to pick experts.

Brad Kuhlman and Denise Henning share how they evaluate and analyze the factsand legal issues of a case to determine whether they should take a case.

Ted Green and Brad Kuhlmann were two of the speakers in the “Xtreme Success inthe Courtroom” CLE program.

This program was

very insightful

and gave us a

‘view from the

bench’ regarding

how to conduct

ourselves in our

profession.

What’s going on ...

CLE

comes to a close

4 the AWL link August 2004

Wha

t’s

goin

g on

...

(con

tinu

ed)

Honorable Karen Arnold-Burger Honorable Molly MerriganElizabeth Badger Ann MolloyThomas Bender Allison MurdockHonorable Susan Blaney Nancy NortonTracy Bornman Cynthia ParresSteve Bough Beth PhillipsSherrie Brady Anne PostHonorable Patty Breckenridge Honorable Sherrill RosenHonorable Margene Burnett Frank SalleeHonorable Jacqueline Cook Terry SatterleeCathy Dean Honorable Margaret SauerMargaret Dean Paula SchwachJennifer Ferguson Judith SharpHonorable Kathleen Forsyth Cathleen ShineDenise Henning Betsy Ann StewartZoe Ann Holmes Professor Ellen SuniLynn Weddle Judkins Honorable Janet SuttonPaul Kavanaugh Charlotte ThayerNancy Kenner Megan ThornberryElaine Koch Steve ThornberryHonorable Nanette Laughrey Liz VanNoteJennifer Lepentis Vicki WesterhausTheresa Levings Teresa WoodyMary Liddle

Thank You

2004 AWL

Premier &

Ambassador Members

The law firm of Stafford & Associatesannounces the opening of its office in KansasCity.

The new office opened June 1 to handle securi-ties law and is staffed with five employees,including four attorneys.

Jane L. Stafford heads the firm and bringswith her more than 20 years of securities experi-ence along with a national securities practice.

Of counsel is Eric B. Tanner, bringing with himmore than 29 years of experience assisting intrusts, estates, regulatory and compliance work.

Stafford & Associates is a firm specializing inSecurities law located in Kansas City, Missouri.

The Stafford & Associates staff is composed ofproven, skilled attorneys and special assistantsbrought together by their commitment to assistindividuals and companies fairly and efficientlynavigate all aspects of securities law.

For further information, please contact Jane L.Stafford at (816)931-1800.

Jane L. Stafford opens law office in KC

Jane L. Stafford and staff

August 2004 the AWL link 5

What’s going on ...

AW

L’s I’m N

ot Serious A

bout Golf

Tournament

Photos courtesy ofThe Daily Record

It’s time to tee-off at AWL’s Tourney, Sept. 24th

Mark your calendars now, and plan to registerearly, because a full field is expected for theannual fun-fest known as AWL's "I'm Not

Serious About Golf" tournament, scheduled for Friday,September 24, 2004. Just look at all the fun wehad at last year’s tournament in these photos.

An application is included in this issue;mail it and your check in now to reserve yourspot.

The Tournament is open to golfers at alllevels of golfing expertise (or lack thereof!)

Our only requirement is that you nottake yourself, your teammates, or the gametoo seriously.

Teams will consist of one judge and threeattorneys, and each group will be made up of golfers ofvarying skill levels. No bad golfer left behind is our motto!

Once again this year the Tournament will be held atTeetering Rocks Golf Course and begins with lunch at12:30. The Tournament will be followed by the presenta-tion of awards and door prizes, and appropriate refresh-ments (at a nominal cost).

Don't miss out on this fun afternoon with fellow attor-

neys and judges, and the opportunity to share a great expe-rience without much athletic investment. Notch up yourinvolvement by signing up to become an event orhole sponsor.

Proceeds from the Tournament will beused to fund AWL's Roxanne Barton ConlinScholarship Fund, which provides annualscholarships to deserving female law stu-dents.

Any individual, law firm or other busi-ness may sponsor one of the nine holes wewill play, or may be a general sponsor of theevent.

Hole sponsors will be identified by anAWL acknowledgment, and a sign at a desig-

nated hole (one of your own choosing is also okay).Both hole sponsors and general sponsors will be

acknowledged at the awards ceremony following theTournament.

Sign up for play and/or sponsorship on the applica-tion form in this newsletter, or call for more information:Commissioner Margene Burnett at (816) 881-3759 or MollyKorth Williams at (816) 333-3931.

6 the AWL link August 2004

— SEPTEMBER 24, 2004 —

“I’M NOT SERIOUS ABOUT GOLF” REGISTRATION FORM

(Deadline to register is September 16, 2004)

Name Are you an AWL member? Yes No

Phone Fax I have played golf times in the past two years (none is ok)

IN KEEPING WITH THE SPIRIT OF THE TOURNAMENT TEAMS WILL BE COMPRISED OF PLAYERS WITH VARYING FREQUENCY OF PLAY

ABSOLUTELY NO PRE-ARRANGED TEAMS

Lunch and Golf (9 holes) for all participants - $40.00; Lunch only - $15.00

Make checks payable to AWL and mail (with Registration) to:Molly Williams 641 W. 69th Terr., KCMO 64113

NO REFUNDS AFTER FRIDAY, SEPTEMBER 17, 2004

BE A SPORT!!! TOURNAMENT SPONSORSHIP FORM

A $200.00 donation will allow any individual, law firm, or other business to be a proud hole sponsor for AWL’s premier 2004 sporting event,

and to be appropriately recognized for your generosity. Contributors of prizes or services will be recognized as general sponsors of the event.

Amount enclosed $ Hole Preference Second Choice

Other Contribution: Description:

Contact Person: Phone Number:

Name:(as you would like it to appear on acknowledgement)

Street Address:

City, State, Zip:

Make checks payable to AWL and mail (with Sponsorship Form) to:Molly Williams 641 W. 69th Terr., KCMO 64113

Questions? Call Molly at (816) 333-3931 or Comm. Margene Burnett at 881-3759

7 the AWL link August 2004

Attorney’s passion fighting Federal criminalcase leads to change in career path

mem

ber profile ...C

ynthia L.S

hortby Jolie Justus

Cyndy Short knew from a youngage that she wanted to be alawyer, but as a young lawyer in a

big firm, she never imagined she woulddedicate her career to the representationof clients facing the death penalty.

Following graduation from St. Mary'sCollege in Notre Dame, Indiana, whereshe received a B.A. in humanistic studiesand political science, Short attended St.Louis University Law School. Publicinterest law was never stressed at herschool, and after graduation in 1987, shewent to work for a management-sidelabor law firm. Short was only the secondwoman to be hired by the prestigious St.Louis firm, but it did not take long for herto realize that the impersonal nature ofthe work was not a good fit for her. Thatwas all about to change.

During her first year at the firm Short was appointed toa federal criminal case that ended up changing both hercareer and her life. Short was assigned to defend TammyWilliams, who along with her husband, was accused of plot-ting to assassinate Jesse Jackson during his1988 presidential campaign. In what ulti-mately proved to be the turning point in hercareer, Short totally immersed herself in therepresentation of her client. "I worked nightand day on Tammy's case, seeing her lifefirsthand, and could not imagine her capableof the crime of which she was accused," saysShort.

"Unlike my job at the law firm, thiswork involved real issues and affected peo-ple in great need. This was the most aliveand meaningful I had felt as a lawyer," Shortsays. Her client ultimately pled guilty topossession of a weapon, and the court dis-missed the more serious charge of attempt-ing to assassinate Jackson. Having foundher life's passion, Short left her position withthe law firm. When a position with the Missouri StatePublic Defender Office became available, Short knew shehad found her calling. For the next 14 years she served as apublic defender for the state of Missouri.

Starting first as an assistant public defender in the trialdivision, and then in the Kansas City conflicts office, Shorteventually became Lead Capital Trial Attorney. During hertenure in that position, Short represented 50 clients facingthe death penalty. Not one of those clients ever received adeath sentence and six of her clients were eventually freedaltogether after trial or investigation. Since August of 2003,Short has been in private practice with the Public InterestLitigation Clinic, a non-profit law firm dedicated to defend-ing the wrongly accused and freeing the wrongly convicted,

where she continues her work on capitalcases.

Short's successes, however, havenot been limited to the courtroom. In1997, The Missouri Bar honored Shortwith the Lon O. Hocker Award, giveneach year to young lawyers who havedemonstrated unusual proficiency in theart of trial advocacy. In 1998, theMissouri State Public DefenderCommission gave Short the Defender ofDistinction Award, the Commission'shighest honor, presented annually to thepublic defender who most exemplifiesthe ideal of public defense. One yearlater, in 1999, Short received theCourageous Litigator of the Year Awardfrom the Western Missouri Coalition toAbolish the Death Penalty.

With all her courtroom successes and awards, the thingthat really makes Short stand out in her field is her passionfor her clients. Short's dedication to her clients is mostnotable in her ability to enter their lives and truly under-stand each one of them. Short makes a point to create a pic-

ture of what it was like for her clients to facethe challenges of their childhood, or to sufferfrom mental illness or homelessness.Through this exercise, Short comes to see herclients as valuable individual people, and notthe monsters the media usually portrays themto be. "As an advocate I must know my clientand the contours of the world in which he orshe has lived. If I am representing a homelessclient I spend time volunteering in that com-munity; if I have a mentally ill client then Ienroll in a course designed to educate aboutthe illness," she says.

Despite the joys that come with her work,Short also recognizes the many difficultiesthat come with capital defense. The stagger-ing costs of administering the death penalty,in both human and financial terms, cannot be

underestimated. Perhaps one of the greatest costs of apply-ing the death penalty, however, is not its economic impact,but the risk of making a mistake, of executing those whomay be innocent. Short points to her client, Dick Dexter, toillustrate the fallibility of the system. As lead appellatelawyer on his case, Short used DNA testing and uncoveredshoddy investigative work to help prove Dexter's innocence.In 1999, after years on death row, Dexter's death sentencewas overturned and he was a free man.

For Short, stories like that of Dick Dexter, affirm her pathin life and motivate her to continue her work as counsel forthose facing capital punishment, and as a tireless advocatefor the improvement of capital defense work in the state ofMissouri.

Unlike my job at

the law firm, this

work involved real

issues and affected

people in great need.

This was the most

alive and meaning-

ful I had felt as a

lawyer.”

Cynthia L. Short

By Jennifer J. ChapinPolsinelli Shalton Welte Suelthaus P.C.

The creation and enforcement of state "No Call" laws isgaining increasing attention as more state legislatures deter-mine that unsolicited telemarketing is a hot issue with theirconstituents. In 2000, the Missouri GeneralAssembly passed Missouri's No Call Law(RSMo 407.020 et seq.), which mandated that theAttorney General's Office establish and operatea database compiling a list of telephone num-bers of residential subscribers whom object toreceiving telephone solicitations (the "No Calllist"). The No Call Law prohibits telemarketersfrom calling households that have been addedto the No Call list, with some exceptions (e.g.,business phone numbers cannot be included onthe No Call list.) The Attorney General prose-cutes telemarketers who violate either theMissouri No Call law or the federal law. Todate, the Missouri Attorney General's Officereports that it has obtained $1,183,000 in judg-ments against such telemarketers.

The federal government recognized the problem of unso-licited telemarketing a decade ago, when Congress passedthe Telephone Consumer Protection Act of 1991 (47 U.S.C.Section 227 and 47 C.F.R. Section 64.1200) ("TCPA"). TheTCPA prohibits telephone calls to residential telephone linesthat use artificial or prerecorded voices to leave messages andunsolicited transmittals of advertisements to facsimilemachines. Both actions are prohibited unless there is priorexpress consent from the called party. The provisions of theTCPA may be enforced by either: 1) a private lawsuit; or 2) anaction by a state attorney general on behalf of residents.

The private right of action allows an aggrieved party tobring its claim for violation of the TCPA before an appropri-ate state court. The action may ask for actual monetary lossfrom such violation or violations, or $500 in damages for eachsuch violation, whichever is greater. Furthermore, the TCPAauthorizes treble damages if the court finds that the defen-dant willfully or knowingly violated the statute or the relat-ed regulations. Recent amendments to the TCPA led to thecreation of a national No Call registry and prohibitionsagainst the blocking of caller ID information. (According tothe Missouri Attorney General's office, it has obtained thephone numbers of Missourians on the new federal Do NotCall list and added them to Missouri's No Call list.)

Because it is a federal statute that addresses a controversialissue (unsolicited telemarketing) and which specificallygrants jurisdiction to the state courts, the TCPA raises a num-ber of interesting legal issues. The purpose of this article is tobriefly outline some recent Eighth Circuit and Missouri TCPAcases so that legal practitioners faced with TCPA issues areaware of how Missouri courts are interpreting the law.

JurisdictionReynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907

(Mo. banc 2002). In this case, the Missouri Supreme Courtreversed the trial court's dismissal of a TCPA case on thegrounds that there was no TCPA private right of action inMissouri. The relevant section of the TCPA provides: A per-

son or entity may, if otherwise permitted by the laws or rulesof court of a State, bring in an appropriate court of that State:(A) an action based on a violation of this subsection or theregulations prescribed under this subsection to enjoin suchviolation, (B) an action to recover for actual monetary lossfrom such a violation, or to receive $500 in damages for each

such violation, whichever is greater, or (C)both such actions. 47 U.S.C. § 227(b)(3)(emphasis supplied).

Diamond Foods interpreted this lan-guage to mean that before a plaintiff canbring suit under the TCPA in a Missouricourt, Missouri must enact specificenabling legislation to "opt-in" to the TCPA.The Missouri Supreme Court disagreedand held that the TCPA does not conditionthe right to bring a private cause of actionunder it on a state's adoption of specific leg-islation permitting such suits. In short,TCPA suits may be brought unless a statedoes not otherwise permit such a suit.Nothing in Missouri law prohibits the fil-

ing of an action under the TCPA.The Reynolds holding brought Missouri law in line with

the leading federal case directly addressing the state jurisdic-tion question, Int'l Science & Tech. Institute, Inc. v. InacomCommunications, Inc., 106 F.3d 1146 (4th Cir. 1997). In Int'lScience, the Fourth Circuit Court of Appeals found that theTCPA creates a privateright of action for viola-tions of the TCPA andthat state courts haveexclusive jurisdictionover such causes ofaction. (The Third,Fifth, Ninth, andEleventh Circuits havealso followed the hold-ing in Int'l Science.)

StandingMargulis v. P&M

Consulting, Inc., 121S.W.3d 246 (Mo. Ct.App. E.D. 2003). In thiscase, the Missouri Courtof Appeals affirmed thetrial court's grant ofsummary judgment infavor of an individual whose husband received and partici-pated in a pre-recorded telephone "survey" at their home.P&M appealed raising four points, three of which merit dis-cussion here.

P&M first argued that there was a disputed issue of mate-rial fact because plaintiff's husband answered the phone.P&M did not dispute that it placed a call to Margulis' resi-dence, only that it was Margulis herself who actually partici-pated in the call. The Court of Appeals held that no languagein the statute limits the private right of action only to indi-viduals actually receiving the call. The placing of the call to

Telephone Consumer Protection Act of 1991

The No Call Law prohibits

telemarketers from calling

households that have been

added to the No Call list,

with some exceptions

(e.g., business phone

numbers cannot be

included on the

No Call list).

by J

enni

fer

J.C

hapi

nTe

leco

mm

unic

atio

ns

Law

Upd

ate

Jennifer J. Chapin

8 the AWL link August 2004

continued on page 10

AW

Lphoto album

...at P

ersona

The Association for Women Lawyers latest social event washeld at Persona Day Spa on Wednesday evening, June 23, 2004.As always, the staff at Persona pampered AWL members withtheir wealth of knowledge on creating the total spa experience.

With soft lights, relaxing sounds and the smell of aro-matherapy in the air, AWL members enjoyed hors d'oeuvres anddrinks while the Persona staff provided tours of the spa anddescribed the services available to Persona clients.

During this event, AWL also sponsored a donation drive forKEYS, a group home for boys and girls. AWL members mademonetary contributions to KEYS, as well as donating new toi-letry items for the young girls to provide them with a spa expe-rience.

AWL would like to thank Persona Day Spa, and especially theowner, Gary Evert, for sponsoring this event and providing arelaxing summer evening. AWL members are encouraged toschedule appointments with Persona Day Spa by calling (816)822-0600 or by visiting them at 408 W. 74th Terrace, Kansas City,Missouri. As part of your AWL member benefits package, besure to show your AWL membership card to receive a 10% dis-count on products and services from Persona Day Spa.

Once again, AWL thanks Persona Day Spa for its support andlooks forward to next year's event!

Persona PartyThe staff at Persona

Commissioner Molly Merrigan and Margaret Dean

Above, Denise Henning, AndreaBough and Tamie Anfang. Below,

Diana Toman, Tamie Anfang,Stacey McLey and Stephanie Guerin

9 the AWL link August 2004

a residence violates the TCPA. Thus, anyone who lives at theresidence that received the unsolicited call has standing to sueunder the TCPA.

P&M next argued the trial court erred in finding thatP&M's call was an "unsolicited advertisement" because thecall did not advertise the commercial availability of any goodsor services and Margulis did not receive any subsequentadvertisement from P&M. Instead, P&M characterized its callas a "survey," which it argued was exempted from the TCPA'sprohibitions. The Court of Appeals noted that, to qualify foran exemption, P&M's call would have to have been a non-commercial call. However, P&M's pre-recorded call wasmade, in its own words, "to determine eligibility for a compli-mentary vacation package." The Court of Appeals held thatP&M's call was made for commercial purposes and, thus wasan unsolicited advertisement as contemplated by the TCPA.

For its third point, P&M asserted that the trial court erredin finding that the plaintiff did not give express consent toparticipate in the call because her husband actively respond-ed to the "survey" questions contained in the call. Rejectingthis argument, the Court of Appeals noted that the clear lan-guage of the TCPA prohibits the initiation of any telephonecall to any residential telephone line using an artificial or pre-recorded voice to deliver a message without the prior expressconsent of the called party. Responses to questions placedafter the call was connected to plaintiff's residential telephoneline did not constitute express consent given prior to the initi-ation of the call.

ConstitutionalityMissouri ex rel Nixon v. American Blast Fax, Inc., 323 F.3d 649

(8th Cir. 2003). In this case, the Eighth Circuit Court ofAppeals reversed the district court's dismissal of Missouri'slawsuit against two fax companies (Blast Fax, Inc. andFax.com, Inc.), which it sued in response to numerous con-sumer complaints. The fax companies argued that the TCPAwas an unconstitutional restriction on commercial speech.After an extensive discussion of the test for restrictions oncommercial speech found in Hudson Gas & Elec. Corp. v. PublicService Commission, 447 U.S. 557 (1980), the Court of Appealsheld that the TCPA's constraints on unsolicited faxes satisfiedthe Hudson Gas test for regulation of commercial speech.There is a substantial governmental interest in protecting thepublic from the cost shifting and interferences caused byunwanted fax advertisements, and the means chosen byCongress to address these harms directly and materiallyadvance that interest.

The American Blast Fax case brought the Eighth Circuit inline with other federal circuits faced with the issue of theTCPA's constitutionality. See Destination Ventures, Ltd. v. FCC,46 F.3d 54 (9th Cir. 1995), aff'g 844 F.Supp. 632 (D.Or. 1994);Texas v. Am. Blast Fax, Inc., 121 F.Supp.2d 1085 (W.D. Tex.2000); Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162 (S.D. Ind.1997) (all holding that the TCPA is constitutional).

Calculating DamagesThe Missouri Supreme Court also recently considered and

rejected a constitutional challenge to the TCPA. Harjoe v. HerzFin., 108 S.W.3d 653 (Mo. banc 2003). In Harjoe, the defendantargued that the TCPA was void for vagueness. In rejectingthis constitutional challenge, the Missouri Supreme Courtnoted that the American Blast Fax case (discussed above) hadalready rejected a similar claim and that it was well estab-

lished that "if the law is susceptible of any reasonable andpractical construction which will support it, it will be heldvalid, and . . . the courts must endeavor, by every rule of con-struction to give it effect."

In addition to its constitutional holding, Harjoe is interest-ing because it sheds light on how courts may calculate dam-ages under the TCPA. Herz Financial argued that the trialcourt assessed the wrong amount of damages under the TCPAwhen it awarded Harjoe $9000, plus court costs. Under 47U.S.C. Section 227(b)(3)(B), a person is assessed a minimum of$500 "for each violation." A violation occurs when a person"use[s] any telephone facsimile machine, computer, or otherdevice to send an unsolicited advertisement" to a telephonefacsimile machine. 47 U.S.C. § 227(b)(1)(C). An "unsolicitedadvertisement" is any material advertising the commercialavailability or quality of any property, goods, or services. 47U.S.C. § 227(a)(4). Therefore, the focus of the TCPA is on an"advertisement."

The trial court found eighteen violations, because Harjoepleaded it received eighteen pages. The Missouri SupremeCourt noted that the TCPA definition of advertisement doesnot mention a number of pages. Advertisements can be a par-tial page, one page or multiple pages. In this case, each adver-tisement had a cover sheet and an accompanying form on asecond page. Each two-page advertisement came weeksapart, during the same transmission. Therefore, the MissouriSupreme Court determined that only nine violations occurredand modified the judgment to $4,500, plus court costs. (Note:the TCPA does not permit an award of attorneys' fees to theprevailing party.)

Insurance CoverageUniversal Underwriters Ins. Co. v. Lou Fusz Auto Network, 300

F. Supp. 2d 888 (Mo. Ct. App. E.D. 2004). This case wasbrought by an insurance carrier, which sought a declarationthat it had no duty to defend or indemnify two automobiledealerships, which were sued for sending unsolicited faxes inviolation of the TCPA. (The suits were brought as classactions in the St. Louis County Circuit Court.) One of thedealerships admitted that it had contracted with an advertis-ing company to distribute the faxes but denied that it knewthat the faxes would be sent without prior consent. The otherdealership denied that it sent or authorized anyone else tosend unsolicited faxes. Both dealerships tendered the cases totheir insurance carrier, which accepted the defense under areservation of rights.

The insurance carrier claimed that the TCPA violationswere, inter alia, intentional acts and that the statutory dam-ages sought in the underlying state court litigation were civilpenalties, neither of which was covered by the policies. Thedistrict court rejected the insurer's arguments, noting thatboth dealerships denied intentionally sending the faxes, sothe issue of whether their acts were intentional was undecid-ed, thus triggering a duty to defend where there was at leastpotential coverage under the policies. The court also notedthat that the TCPA offered "actual damages" as a remedy andthat actual damages were not the same as civil penalties.

ConclusionUndoubtedly, enforcement of both the TCPA and of

Missouri's No Call Law will continue to generate morejurisprudence to guide Missouri legal practitioners. Whetherstate courts (especially small claims courts) are the proper forafor obtaining uniform interpretations of federal laws like theTCPA remains to be seen.

10 the AWL link August 2004

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By The Honorable Chris Sill-Rogers16th Judicial Circuit Family Court, Division 31

The Constitution of The United States has been amendedon three occasions to address the right of Americans to vote.In 1870, the Fourteenth Amendment proclaimed ..."The rightof citizens of the United States to vote shall notbe denied or abridged by the United States orby any State on account of race, color, or pre-vious condition of servitude."

Fifty years later, only five years before thebirth of my Mother, and twenty-nine yearsbefore my own, the Nineteenth Amendmentguaranteed that..."The right of citizens of theUnited States to vote shall not be denied orabridged by the United States or by any Stateon account of sex." More recently, in 1971, theTwenty-Sixth Amendment providedthat..."The right of citizens of the UnitedStates, who are of eighteen years or older, tovote shall not be denied or abridged by theUnited States or any State on account of age."

In America we live in a democracy whichwas created by the world's oldest written constitution. Facedwith ever dwindling voter participation, it is incumbent upon

all lawyers, in particular those who have been enfranchisedfor less than one hundred years, to join in the debate and getout the vote.

Large issues loom in the coming election. The erosion ofthe doctrine of separate but equal powers of the three branch-es of government; the independence of the judiciary; the sur-

vival or demise of the Missouri nonpartisancourt plan; the separation of church and state;the right of the people to be secure in theirpersons, houses, papers, and effects againstunreasonable searches and seizures; therights of freedom of speech, to peaceablyassembly and to petition the government forredress of grievances; the security of ournation; our place in the world's communityand the world's acceptance or rejection of ourleadership; and many others.

Lawyers on all sides of these vital issuesmust initiate and lead the debates. Lawyersmust demonstrate a new commitment tocivility in leading these debates. For inspira-tion, begin by reading again the Constitutionof the United States. It survives only by the

vote of the people. Exercise your right to vote and make ityour mission to encourage others to vote as well.

A V

iew From

the Bench ...

Exercise your right to vote

The Hon. Christine Sill-Rogers

11 the AWL link August 2004

Hon. Jack Grate joins Div. 17 in IndependenceOn May 10, 2004 The Honorable Jack

Grate replaced retiring Judge C.William Kramer as the newest JacksonCounty Circuit Court Judgeto preside over Division 17in Independence, Missouri.

Judge Grate received hisJ.D. from the University ofMissouri-Columbia in 1976.From there, he began prac-ticing law with Legal Aid ofWestern Missouri. Next, hebecame a partner with theIndependence law firm ofWhite, Allinder, Grate andGraham where he practicedlaw until 1995. From 1995until his investiture, JudgeGrate was a solo practition-er in Independence,Missouri.

Over the years his areas of practicehave included general litigation, insur-ance defense in federal court, municipalcourt cases, as well as some criminalexperience. The primary focus of hiscareer, however, has been practicingfamily law. He has handled over 2,500domestic cases, and has participated asa Guardian Ad Litem where he has hadthe gratifying opportunity to represent

the interests of children in domestic dis-putes. He has also been honored to beappointed as a Special Master on

numerous occasions in domestic cases.Judge Grate has been a member of

the American Bar Association, theMissouri Bar, the Kansas CityMetropolitan Bar Association, theMissouri Association of Trial Attorneys,and the Eastern Jackson County BarAssociation. He served as the Presidentof the Eastern Jackson County BarAssociation from 1999-2000 and servedon its board for eight years.

Additionally, he was awarded the inau-gural "Lawyer of the Year" award fromthe Eastern Jackson County Bar

Association in 1999.Judge Grate's civic

efforts include fund rais-ing for the AmericanCancer Society, BoardMember for Legal Aid ofWestern Missouri, and asa mentor in the KansasCity Youth Court.

Judge Grate and hiswife of 28 years, JoanGrate, have four childrenranging in ages from 13 to19. He is extremely activein his children's schooland sports activities, andis active in his church, St.

Thomas More Catholic Church. In hisvery rare free time Judge Grate enjoystraveling and reading.

The Association for Women Lawyerswould like to extend its warmest con-gratulations to Judge Grate. Our mem-bership looks forward to appearingbefore him, and getting to know himbetter at our Judicial Reception andother social functions.

Best wishes Judge Grate!

The Hon. William Kramer, The Hon. Jack Grateand The Hon. Julian Levitt

Association for Women Lawyers of Greater Kansas CityP.O Box 414557Kansas City, MO 64141

ADDRESS SERVICE REQUESTED

PRESORT STANDARDUS POSTAGE

PAIDPERMIT #5640

KANSAS CITY, MO

TThhee AAssssoocciiaattiioonn ffoorr WWoommeenn LLaawwyyeerrssinvites you to attend

aa rreecceeppttiioonn hhoonnoorriinngg oouurr ppaasstt pprreessiiddeennttssPlease join us on

TThhuurrssddaayy,, OOccttoobbeerr 1144,, 22000044from 5:30 p.m. to 7:30 p.m.

aatt SShhiirraazz rreessttaauurraannttlocated at 320 Southwest Boulevard

iinn KKaannssaass CCiittyy,, MMiissssoouurriiDrinks and hors d’oeuvres will be served.

WWee hhooppee ttoo sseeee yyoouu aallll tthheerree!!

There is a tremendous amount of new develop-ment and construction taking place in KansasCity. Much of this work is financed with publicdollars. Many of these projects will require legalservices.

The city puts MBE and WBE participation goalson all professional services work over $50,000.00.

We often have to waive the WBE goals on legalservices work because we do not have anywomen-owned law firms that have been certifiedby our office.

If your law firm is at least 51% owned by afemale, please contact Mickey Dean at 513-1804 ifyou want your firm to be certified as a D/WBE bythe city of Kansas City, MO.

We will also certify any Black-owned law firmas an MBE.

Opportunity exists forwomen-owned law firms