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11-25-2011


ATTORNEY’S DWI CASE
GETS CONTROVERSIAL
Rulings by Judge McBeth
being challenged

by Ivan Foley
Landmark editor

A DWI-related case against a well-known attorney in Platte County has taken on a controversial tone, as the county prosecutor is now challenging two rulings made by the judge in the matter.

James D. Boggs, 62, a Platte County attorney who was serving as the municipal judge for the city of Weston at the time of his arrest, was charged in May with DWI for an incident that occurred in January. Boggs, in addition to serving as Weston judge, has also served on the Sixth District Judicial Commission, a board that is involved in recommending appointments for Platte County Circuit Court judgeship openings to the governor.

There are two court cases involving Boggs’ DWI arrest--a criminal charge and a case of Boggs vs. the Missouri Director of Revenue, which will decide whether Boggs can keep his driver’s license in spite of the DWI arrest.

Authorities said Boggs refused to submit to a breath test on the night of his arrest. Typically when someone suspected of DWI refuses a breath test, the defendant loses his license for a year. But the accused can petition the department of revenue (DOR) in an effort to not lose the license. Boggs, being represented by his son, attorney Christian Boggs, has been carrying on that fight since the incident.

The outside judge appointed to hear the case, Judge Gerald McBeth of Vernon County in southwest Missouri, recently made a pair of rulings that are being appealed by Platte County Prosecutor Eric Zahnd on behalf of the state.

McBeth recently ruled in favor of Boggs’ request to have the prosecutor’s office disqualified from representing the DOR in the case. The DOR then requested to have its own staff attorney represent the director in the matter. McBeth then issued an order disqualifying the director of revenue as co-counsel.

McBeth announced the court would conduct a “diligent search” for a special prosecutor to be named in the case. McBeth on Nov. 2 announced the court is appointing Steve Salmon of Clay County, who is a criminal defense attorney.

Salmon is a former law partner of Platte County Associate Circuit Court Judge Thomas Fincham. Early in the Boggs vs. DOR case, Fincham on multiple occasions granted a stay of revocation, keeping Boggs’ driver’s license in effect pending a court hearing on the matter. Such stays of revocation are not unusual, though it seemed unusual to some observers at the time that Fincham was hearing matters involving Boggs, given that Fincham had been recommended as one of the finalists for his judgeship by the commission on which Boggs served.

After a Landmark article in May mentioned the connection, the case was reassigned to a new judge. Judge Charles Curless was then assigned as the new judge, but after a request for a replacement was filed by the prosecutor, McBeth was then appointed.

The rulings by McBeth have been appealed Zahnd in the form of a writ filed with the Missouri Western District Court of Appeals.

A writ panel consisting of two judges from the court of appeals, after receiving the state’s protest of McBeth’s actions, has asked for the respondent--the judge, who in this case will in effect be represented by Christian Boggs--to file suggestions and opposition to the state’s brief by Monday, Nov. 28.

The action to seek a response from the judge is an indication that the writ panel is at least taking a look at the situation. The writ panel, which consists of court of appeals judges Thomas Newton and Alok Ahuja, had the option to take no action at all and let McBeth’s actions stand.

While the civil case over the driver’s license suspension is active, the criminal charge against Boggs is not scheduled to be heard until Jan. 20.

Earlier this month, Boggs petitioned McBeth to remove the prosecutor’s office from the civil case, arguing that the prosecutor “could not honor (his) duty to zealously represent (his) client, the director of revenue, while at the same time honoring (his) responsibility as a prosecutor, to see that the petitioner, as a defendant in the criminal proceeding, is accorded procedural justice.”

Zahnd’s answer to the court is that in many situations, the same prosecuting attorney who represents the director in the driver’s license review also represents the state in the criminal case. “Missouri’s Office of the Chief Disciplinary Counsel has issued an informal advisory opinion stating that no general conflict arises as a result of the prosecuting attorney’s appearance in both case,” Zahnd wrote in his appeal.

Zahnd wrote that Boggs’ request to disqualify the prosecutor’s office from the DOR case is “nothing more than an effort to avoid discovery,” in other words, to prevent Boggs’ deposition from being taken.

“It matters not who represents the Director of Revenue in the present case: the petitioner (Boggs) will still be subject to the same rules of discovery and sanctions and the petitioner’s statements, if any, in this case can be used against him in the pending criminal matter,” Zahnd wrote.

In court filings reviewed by The Landmark, Zahnd’s challenge maintains that the judge “exceeded his jurisdiction and abused his discretion” by disqualifying the prosecutor’s office and the director of revenue’s staff counsel.

Reached by The Landmark, Zahnd denied comment for this article, citing the pending court action. James Boggs has previously failed to return a Landmark phone message seeking comment on the DWI allegation.

Boggs, who resides near Weston, has a law office housed near the intersection of Interstate 29 and 64th St. in southern Platte County.

A RECORD OF
ALCOHOL OFFENSE

A review of his driver’s license history Boggs filed with the court in his petition to keep his driver’s license shows at least one previous alcohol-related suspension of his license.

Boggs’ record shows a suspension of his license occurred on March 18, 2004. His license was reinstated three months later, on June 11, 2004.

That suspension was tied to an incident that occurred on Feb. 25, 2004. His blood alcohol content in that offense, as described by the driver’s license records filed with the court, was .231, which is roughly three times the current legal limit of .08.

HOW THIS NEWEST
CASE BEGAN

The incident leading to the most recent DWI charge occurred months ago in rural Platte County. On Sunday, Jan. 23 at around 10:15 p.m. about seven miles north of Weston, Boggs was arrested by Platte County Sheriff’s Deputy Katie Daugherty.

Asked by The Landmark about the delay from the time of the incident until the filing of the charge, Zahnd remarked only that his office “filed charges after an extensive investigation was completed by the sheriff’s department.”

Though Boggs was still serving as Weston’s municipal court judge at the time of his arrest, he stepped away from that post via an email to city officials days later.

Boggs sent a letter to city officials on Jan. 28, five days after he had been taken to jail and booked on suspicion of DWI, in effect resigning as municipal court judge. Boggs did not mention his arrest in that correspondence.

“I have reached a point in my life when I have far too many crosses to bear. I need to step down, at least momentarily, from this office,” Boggs wrote.

Boggs requested an “unpaid leave of absence for an indeterminate time until some of my burdens are lifted.”

Boggs wrote that if his request was unfair to the city, “then I must tender my resignation.”

According to a statement of probable cause signed by the deputy who arrested him that night, Boggs failed a field sobriety test. The deputy said that “Boggs failed to give a breath sample upon our arrival at the Platte County Jail.”

Boggs was released after posting a $1,000 bond later that night, authorities told The Landmark.

Though the statement of probable cause does not include specific details, reports indicate Boggs’ vehicle had become stuck in a ditch along M Highway at Nichols Road.

The deputy’s report says “I arrived on the scene to a motor vehicle accident. I observed the vehicle being pulled out of the ditch onto a tow truck. I made contact with the driver of the vehicle, who identified himself as James D. Boggs, and (he) stated he was the driver of the vehicle.

“I observed an odor of intoxicants on Mr. Boggs’ breath and he agreed to take the field sobriety test. Due to Mr. Boggs’ presence of horizontal gaze nystagmus in both eyes and lack of balance during the walk and turn and one leg stand, I placed him under arrest for driving while intoxicated,” Daugherty’s statement says.

The deputy’s statement of probable cause concludes with:

“There was no damage to Mr. Boggs’ vehicle and he requested there not be a motor vehicle accident report taken. Mr. Boggs failed to give a breath sample upon our arrival at the Platte County Jail.”

City officials at Weston in May seemed to be unaware of Bogg’s incident when contacted by The Landmark.

City Clerk Kim Kirby at the time said although Boggs’ letter had left open the possibility of his leave being temporary, to her knowledge there has been “no conversation whatsoever” about him coming back to the post.

Greg Hoffman was mayor at the time of Boggs’ arrest. C.R. Carter was elected mayor in April.

Kirby said the municipal judge position at Weston is an appointed position, with the appointment made by the mayor. Greg Dorsey, who also serves as the municipal judge for Platte City, has filled the void created by Boggs’ departure. Municipal court is held one night a month at Weston.

The Sixth Judicial Commission web site lists Boggs as a member. The web site says his term expires on Dec. 31 of this year. Boggs is one of two attorneys who serve on the commission. Platte County lawyers who are members of the Missouri Bar elect two attorneys to serve on the judicial commission.

Recently, the local lawyers voted Keith Hicklin, whose practice is based in Platte City, to take over the position on the judicial commission being vacated by Boggs.

The Sixth District Judicial Commission reviews applications of lawyers who wish to join the court and interviews the applicants. It then submits the names of three qualified candidates – called the “panel” of candidates – to the Missouri governor. The local commission went through the process of helping to fill two vacancies in the past year, nominating panels that included the two eventual successful candidates in Judge Dennis Eckold and Judge Thomas Fincham.