HEATH AUGUST DUNIVAN, Petitioner-Respondent v. STATE OF MISSOURI, Respondent-Movant-Appellant, and MISSOURI STATE HIGHWAY PATROL, Movant-Appellant.

• Court: Missouri Court of Appeals
• Decided: October 29, 2014
• Docket: SD32920, SD33224 (Consolidated)
• Status: Published

Opinion

HEATH AUGUST DUNIVAN, ) ) Petitioner-Respondent, ) ) vs. ) Nos. SD32920 & 33224 ) STATE OF MISSOURI, ) Filed: October 29, 2014 ) Respondent-Movant-Appellant, ) ) and MISSOURI STATE HIGHWAY ) PATROL, ) ) Movant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY

Honorable Kenneth M. Hayden, Circuit Judge

Before Rahmeyer, J., Lynch, J., and Burrell, J.

AFFIRMED

PER CURIAM. Heath August Dunivan, pursuant to the provisions of section

589.400,1 filed a petition for the removal of his name from the Missouri Sex Offender

Registry and requested to be relieved from the obligation to register. Pursuant to the

provisions in section 589.400.9, the Laclede County Prosecuting Attorney’s office was

served with a copy of the petition and appeared at a hearing. The trial court granted 1 All references to section 589.400 are to RSMo Cum.Supp. 2009.

1 Dunivan’s request and entered an Order on May 20, 2013. Three months later, on August

19, 2013, the office of the Missouri Attorney General (“Attorney General”) filed a

motion to intervene2 as of right on behalf of the State of Missouri (“State”) and the

Missouri State Highway Patrol (“MSHP”); the motion was denied. The State, by and

through the Attorney General, only appeals the denial of intervention on behalf of the

Attorney General and the MSHP.

In its first point, the Attorney General claims that the trial court erred in denying

the motion to intervene as of right, because the trial court misapplied the law, in that the

Attorney General’s motion was timely and section 27.0603 confers an unconditional right

to intervene. In its second point, the Attorney General claims both the Attorney General

and the MSHP have an absolute right to intervene pursuant to Rule 52.12(a).4 Initially,

we also note that the Attorney General uses the terms “standing” and “intervention”

interchangeably in its argument. Although similar in elements, the two are separate

concepts. In Kennedy v. State, 411 S.W.3d 873 (Mo.App. S.D. 2013), the Attorney

General brought an appeal from the grant of the removal from the registry. Id. at 874.

We held that the Attorney General had “standing” to bring an appeal from that order. Id.

at 877. In this case, although the State appealed from the judgment granting the removal

of Dunivan from the registry, it did not claim in its points relied on any trial court error

2 The motion to intervene was filed in conjunction with a motion to set aside the order. 3 All references to section 27.060 are to RSMo 2000. 4 All rule references are to Missouri Court Rules (2014).

2 concerning the removal of Dunivan from the registry. We thus limit our decision to the

two points brought to this Court on appeal.5

POINT I

The Attorney General claims that section 27.060 confers an absolute right to the

Attorney General to intervene in this matter. The Attorney General overstates the rights

conveyed in section 27.060. Section 27.060 provides: the Attorney General “may also

appear and interplead, answer or defend, in any proceeding or tribunal in which the

state’s interests are involved.” The language in section 27.060 providing that the

Attorney General “may” appear is not synonymous with an unconditional right to

intervene in any existing lawsuit. The question of whether the Attorney General may

intervene in a lawsuit where the State is already a party and is being represented by the

prosecuting attorney is not addressed in section 27.060. As a result, we are not convinced

that this statute provides the Attorney General with an “unconditional right” to intervene

in such a suit.

The removal of a name from the Missouri Sex Offender Registry is governed by

section 589.400; that section does not provide that the Attorney General be given notice

of the petition to remove a name from the registry, nor does it mandate that the Attorney

General be made an additional party to the proceeding. Section 589.400 provides that the

prosecuting attorney of the county be served. The State was named as a party, the

prosecuting attorney was served, and the State did appear at the hearing by the

prosecuting attorney of the county as anticipated by the legislature in section 589.400.

The Attorney General has not directed us to any authority that the prosecuting attorney

5 The Attorney General argued that Dunivan is still required to register under federal law; that contention is not before us in this appeal.

3 was unauthorized to represent the State in this type of case.6 The sole issue before us is

whether the Attorney General had an unconditional right to intervene pursuant to section

27.060 in a lawsuit in which the State was already a party and was being represented by

the prosecuting attorney. We hold that it does not. Appellant’s first point is denied.

POINT II

In his second point, the Attorney General claims that the trial court erred in

denying the motion to intervene because, as a practical matter, the disposition of

Dunivan’s petition may impair or impede the State and the MSHP in enforcing

Missouri’s Sex Offender Registration Act and their interests may not be adequately

represented. In the absence of a statute conferring an unconditional right to intervene, a

person seeking to intervene as of right must show (1) an interest in the property or

transaction that is the subject of the action, (2) disposition of the action may as a practical

matter impair or impede his ability to protect his interest, and (3) his interest is not

adequately represented by the existing parties. Rule 52.12; Myers v. City of Springfield,

et al., No. SD32875, 2014 WL 3973109, *1 (Mo.App. S.D. August 14, 2014).

In his argument, the Attorney General claims that the MSHP has an absolute right

to intervene because of its interest in maintaining the statewide sex offender registry as

required by statute. The MSHP does have that duty, however, it does not have input into

whether Dunivan should or should not be on the registry. This order by the trial court

does not affect the MSHP’s duty to maintain the registry. The MSHP cannot meet the

first criteria that it has an interest in the pending litigation.

6 The Attorney General contended at oral argument that he had specialized knowledge in these types of cases. That may well be true, but that does not deprive the prosecuting attorneys of the counties of their authority to act on behalf of the State in these cases.

4 The Attorney General further contends that he has an absolute right to intervene

pursuant to Rule 52.12(a): first, arguing the right as set forth in Point I, and second

arguing that Kennedy v. State, 411 S.W.3d 873 (Mo.App. S.D. 2013), provides that the

State’s interests are involved in these types of cases. As noted above, the State was made

a party in this case and was represented by the prosecuting attorney. In Kennedy, the

State, through the Attorney General, brought an appeal from the trial court judgment

granting the removal from the registry. Its standing was challenged. We held that the

State had standing to bring an appeal. The State did not try to intervene in a pending

lawsuit where the State was already a party and was represented by the prosecuting

attorney. Here, as in Kennedy, the State brought an appeal from the judgment granting

the removal of a name from the registry, however, neither of the State’s points on appeal

claims that the trial court erred in ordering Dunivan’s removal from the registry. The

sole issue before us is whether the trial court abused its discretion in denying the

Attorney General the right to intervene pursuant to Rule 52.12(a) in this case in which the

State was already a party and was being represented by the prosecuting attorney. We

hold that it did not. Point II is also denied.

The judgment is affirmed.