This Week in the Missouri Supreme Court: Week of October 2, 2017

By Michael Layer

JEFFERSON CITY, Mo – The Missouri Supreme Court issued hand downs for four cases and seven attorney discipline cases.

In Robert Hurst v. Nissan North America Inc., Nissan’s Infinity FX35 and FX45 had defective dashboards; they were affected by heat and humidity and would “bubble.” Nissan received complaints from its customers and the company replaced the defective dashboards and changed dashboard suppliers. Even despite changing suppliers, the dashboards continued “bubbling.” When Nissan extended their warranty and continued to replace dashboards, a class of plaintiffs sued Nissan for false advertising, alleging that the dashboard problems no longer constitute the Infinity FX 35 or FX45 as “premium” or “luxury’ cars.

A jury awarded the each plaintiff $2,000 in damages, denied Nissan’s motions for directed verdict and judgment notwithstanding the verdict. After the claims process, the circuit court determined that even though the plaintiffs received replacement dashboards that did not “bubble,” they entered judgment against Nissan for nearly $2 million in attorney fees and over $650,000 in damages- which Nissan appealed.

The Missouri Supreme Court reversed the circuit court decision because the plaintiffs could not prove that the dashboards were made with substandard products. If the plaintiffs could prove that they were made with low-end, economy, or standard materials, then the court could believe that other parts of the vehicle were not made with luxury or premium parts.

In S.S.S., L.W.V., & M.T.S.-V v. C.V.S., a biological father appeals to assert his parental rights over his daughter. The child’s biological mother married another man and the two of them have been taking care of the child since 2013. In 2014, the couple filed a petition to allow the child’s stepfather to legally adopt her. The guardian ad litem filed a reported noting that the child wanted to be adopted by the stepfather. The circuit court found multiple statutory grounds for terminating the biological father’s parental rights and approved the stepfather adoption of the child, which the biological father appeals.

In a 4-3 decision, the Supreme Court affirms the circuit court’s judgment. According to W. Brent Powell, there is enough evidence to suggest that the biological father abandoned and neglected to care for the child and thus the court should terminate his rights. However, Judge Patricia Breckenridge disagrees and finds that there is not enough evidence to suggest that he abandoned and neglected her and feels that the court should reverse the decision because of the lack of sufficient evidence.

In T.T.G. & S.S.G., W.J.K. & C.A.C.K. v. K.S.G. &G.H. et. al., a mother appeals to assert her maternal rights over her twin girls. When the children were put into foster care just after birth, the foster parents petitioned to adopt them. The circuit court terminated the biological mother’s parental rights because they found enough evidence to establish that she had neglected the children under many statutory provisions. The court also found that she had neglected or abandoned the twins six months before filing a petition- which the mother appeals. The Missouri Supreme Court unanimously affirms the circuit court’s decision. The Court finds that there was sufficiently convincing evidence of parental neglect under statute.

In SC96159: the State ex rel. Stephanie Windeknecht v. Angela Mesmer; SC96160: State ex rel. Joshua Holman v. Jennifer Sachse;  SC96165: State ex rel.Summer Robinson v. Angela Mesmer; and SC96187: State ex rel. Scarlett R.Adams v. Angela Mesmer; the four defendants pleaded guilty for stealing at least $500 worth of property. However, when the Missouri Supreme Court made its decision in State v Bazell – which determined that that stealing cannot be enhanced to a felony. The defendants sought relief from the circuit court contending that their sentences should not be longer than a year, the maximum for a misdemeanor.

The Missouri Supreme Court denied their habeas relief saying that the Bazell decision only affects cases from 2016 forward and does not apply retroactively.

The Missouri Supreme Court disbarred Columbia attorney Ronald Barlett, Arizona attorney Larry Busch, and St. Louis attorney Shannon Cashion for professional misconduct. The Missouri Supreme court suspended the law license of Illinois attorney Edward Dorsey for failing to safely keep property of his client or a third party and professional misconduct, Florissant attorney Timothy Gilmore for failing to give an answer required in a timely manner, and Springfield attorney Rita Sanders.

The Missouri Supreme Court also reinstated the law license of Kansas attorney Robert Mintz.

This story originally appeared on The Missouri Times.

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Ainsi, pour se prémunir des maux liés au mauvais œil ou à la sorcellerie, il convient régulièrement de lire le Coran et faire des invocations notamment celles du matin et du coucher, de réciter régulièrement la sourate « La vache », de renouveler son intention, de placer la certitude dans son cœur, d’effectuer ses prières etc., et surtout de demander à Allah la meilleure des protections. Toutefois, dans certaines conditions, il est nécessaire de recourir à un soignant. C’est à ce stade qu’il convient d’être vigilant. Il ne suffit pas de se rendre auprès d’une personne qui se présente avec la qualité de cheikh ou d’imam pour accepter de lui confier cette pratique. Comme pour tout procédé et encore plus lorsque cela relève de considérations religieuses, il est important de bien choisir son soignant car ce dernier est tenu de posséder des qualités bien affirmées. La maîtrise du Coran et des traditions prophétiques en la matière est une condition sine qua none, mais insuffisante. La personne doit également avoir des notions de psychologie afin de déterminer la part de sorcellerie et celle de troubles psychologiques fréquents chez les patients. La personne doit posséder une bonne hygiène de vie, notamment spirituelle puisqu’il n’est pas inutile de rappeler que le succès de la « roqya » dépend de Dieu. Ces critères sont difficilement évaluables, surtout par une personne qui est affectée par un mal-être, quelle que soit sa source. C’est pourquoi les proches doivent accompagner la personne dans la recherche d’un soignant qualifié et reconnu comme tel par des référents religieux de la localité (imam, responsables associatifs, etc.). De manière générale, le soignant doit posséder des qualités déterminées que nous pouvons synthétiser de la manière suivante. Il doit : être en capacité de lire le Coran, croire avec certitude au Coran, être empreint de piété, connaître les pièges et les caractéristiques du diable et des djinns, connaître la méthode prophétique de la « roqya », disposer de connaissances de base en psychologie, avoir la conviction que le succès de sa thérapie dépend de Dieu. A l’exception de la première exigence, il semble difficile de vérifier les autres conditions dans le cadre d’un entretien téléphonique avec une personne que nous n’avons jamais rencontrée, même si elle se présente sous le titre de « cheikh » ou d’un imam. Par conséquent, ces conditions soulignent une première limite quant au recours à la « roqya » par téléphone. Par ailleurs, à l’instar de tout médecin, le soignant doit, avant de prodiguer des conseils ou une médication, procéder à une consultation. Ainsi, un environnement adéquat est indispensable pour la réalisation d’une « roqya ». Il est enfin inconcevable qu’un médecin puisse vous affirmer par téléphone connaître votre maladie et attester pouvoir vous guérir. Vous auriez plus que des doutes sur ce prétendu médecin. II- Un environnement propice et la réalisation d’une consultation préalable à la réalisation d’une « roqya » Il est intéressant de noter que, dans son ouvrage « Comment se protéger des djinns & satan », Wahîd ‘Abdussalâm Bâli évoque l’importance du climat pour réaliser une roqya[2]. Ainsi, il expose les points suivants : « 1. Préparer le climat adéquat en faisant par exemple sortir les images et les statues de la pièce où on va soigner le malade, pour permettre aux anges d’y entrer. 2. Débarrasser le sujet de tout ce qu’il peut porter sur lui comme talismans ou amulettes et les brûler. 3. Éteindre tout ce qui peut émettre le son de la musique et des chants. 4. Vider le lieu de tout ce qui comporte une infraction à la shari‘a à savoir, par exemple, la présence d’un homme qui porte de l’or ou une femme qui ne porte pas le voile légal – al-hijab. 5. Donner au malade et à sa famille une leçon de dogme de façon à ce que leurs cœurs ne soient pas attachés à un autre qu’Allah. 6. Leur faire savoir que la façon de soigner est différente de celle des sorciers et des charlatans et que le Coran recèle guérison et miséricorde, comme l’a informé Allah le Puissant et le Majestueux. 7. Diagnostiquer son cas : pour cela poser des questions au malade pour s’assurer de la présence de tous les symptômes (…) ». Or, dans les témoignages communiqués, l’interlocuteur qui se présente comme soignant ne pose aucune question aux personnes. Il débute ainsi la « roqya » directement par une récitation du Coran. En outre, il est intéressant de souligner que dans l’un des témoignages communiqués à l’UFCM, l’interlocuteur demandait à la personne de remplir successivement des verres de lait, d’huile, d’eau etc. et de les poser par la suite sur la table de la salle à manger. Au point que la personne s’est retrouvée avec une multitude de verres posés sur la table. Le comble est que la personne ignorait ce qu’elle devait en faire lorsqu’elle a pris conscience de la tromperie. Nous constatons par conséquent qu’une « roqya » ne peut être réalisée dans un environnement quelconque. En effet, une procédure de diagnostic est essentielle. Nous pouvons à titre d’exemple faire le parallèle avec un rendez-vous chez le médecin ; ce dernier ne peut vous prescrire une ordonnance sans au préalable vous avoir ausculté et interrogé sur les différents symptômes que vous ressentez physiquement. A défaut, au lieu de guérir vous allez aggraver vos maux. Cette attitude vigilante du médecin traitant doit se retrouver lorsque nous envisageons le recours à une « roqya ». Pour illustrer ce propos, nous citerons l’exemple de l’anthropologue, spécialiste de l’islam européen, Farid El Asri, chercheur associé au Centre Jacques Berque, qui nous rapporte une situation alarmante suite à une « roqya » : « Une jeune femme en Belgique (…) est morte suite à une tentative d’exorcisme. Pendant les séances, les fkihs (imams) utilisent normalement de l’eau « coranisée ». Pour cette jeune femme, prétendument stérile, les exorcistes ont carrément plongé son visage dans l’eau et quand elle tentait d’en sortir pour respirer, les guérisseurs estimaient qu’il s’agissait du jinn qui l’habitait et ils replongeaient son visage dans l’eau. Pendant le procès, la famille de la défunte s’est présentée comme musulmane et a accusé ces pratiques d’être extérieures à l’islam quand les guérisseurs estimaient qu’ils avaient simplement fait ce qu’ils pouvaient. Le fait de recourir trop systématiquement au fkih risque également de faire passer une crise d’épilepsie, par exemple, pour une crise de possession. »[3] Nous allons aborder enfin la dernière problématique, celle relative aux honoraires du soignant. III- Les honoraires du soignant Le Prophète, bénédictions et salut sur lui, « a agréé les Compagnons qui ont été payés pour la roqya ». Il est dès lors autorisé de rémunérer un soignant en contrepartie d’une prestation. Toutefois, cette rémunération doit être raisonnable et surtout clairement définie avant le traitement. En outre, nous ne pouvons que souligner et rappeler que, si la roqya est réalisée dans un cadre sérieux, il convient de procéder à toutes les déclarations administratives. Comme pour tout contrat, vous devez exiger un document écrit et le praticien doit préciser quels sont ses engagements exacts afin d’éviter tout litige postérieur. Malheureusement, tous les témoignages transmis à l’UFCM soulignent que l’interlocuteur insiste à plusieurs reprises sur la gratuité de la prestation. Or, dans les faits, cette dernière est payante puisque le coût de la communication est surtaxé. Ainsi, l’une des victimes qui nous a contacté, s’est retrouvée avec une facture téléphonique (hors forfait) de 1800 euros. Par conséquent, nous constatons que ces « roqyas » gratuites sont fondées sur la technique dite du « call-back » qui consiste à amener une personne à rappeler un numéro surtaxé, information qui lui est bien évidemment dissimulée. Une « roqya » peut être payante à condition de respecter un cadre prédéterminé, fondé sur l’information et la transparence des honoraires. En conclusion A la lumière des développements susvisés, l’UFCM appelle d’une part à une régulation du métier de la pratique de la « roqya », d’autre part, à la vigilance de chacun à ne pas céder à la tentation d’une « roqya » qui ne serait pas réalisée dans les conditions requises et qui pourrait produire des effets inverses. Au-delà du cadre spirituel ou juridique, les divers témoignages reçus et étudiés par l’UFCM ne peuvent pas nous laisser indifférents à la question suivante : pourquoi des personnes sont-elles amenées à accepter aussi facilement une « roqya » par téléphone ? Est-ce la gratuité qui a déterminé leur choix ? Certes le mal-être produit par cette société est de plus en plus grand. Nous vivons une époque où les êtres sont de plus en plus coupés des signes de Dieu et vivent un rythme de vie effréné. Ces affaires sont révélatrices des maux les plus profonds qui touchent la communauté musulmane. Par ailleurs, comme l’ensemble des rites islamiques (hajj, halal, pompes funèbres) censés nous rappeler les limites qui déterminent la voie vers Dieu, nous constatons que leur marchandisation trahit de plus en plus leur vocation première. Suffit-il qu’un interlocuteur se présente à nous comme un « cheikh » ou un imam et qu’il nous propose une « roqya » gratuite pour l’accepter aussitôt Ne devrions-nous pas tous nous interroger sur le fait qu’il y ait des musulmanes et des musulmans aussi isolés et aussi ignorants de leur propre religion pour être trompés aussi facilement ? Sommes-nous devenus si dépendants des Hommes que nous en oublions de nous adresser directement à Dieu pour solutionner nos malaises ? Autant de questions que chacun d’entre nous a la responsabilité de se poser. En effet, aucun de nous ou de nos proches ne sont à l’abri d’une telle tromperie. Il convient enfin de rappeler que la « roqya » est un remède précis et qu’elle ne peut se faire que sous certaines conditions et surtout qu’elle demeure l’exception à la règle, qui est de toujours s’adresser directement à Dieu. Avant de recourir à une « roqya », il convient de faire une introspection sur ses propres pratiques cultuelles et de revenir.

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