RICHARD B. TEITELMAN, Judge.
Michelle Schaefer, Cindy Brandt and Dale Price (plaintiffs) were charged with intoxication-related driving offenses. Each plaintiff had prior convictions for intoxication-related driving offenses.
Plaintiffs were convicted of intoxication-related offenses on multiple occasions. On July 3, 2008, House Bill 1715 became effective, repealing and reenacting section 577.023, which pertains to enhanced penalties for individuals with multiple prior convictions for intoxication-related driving offenses. Following the re-enactment of section 577.023 in HB 1715, each plaintiff again was arrested for a new intoxication-related driving offense.
While the new criminal charges were pending, plaintiffs filed a consolidated petition for a declaratory judgment that HB 1715 and section 577.023 are unconstitutional. The trial court entered a final judgment dismissing plaintiffs' petition on grounds that the constitutional issues should be addressed in the course of each plaintiff's criminal case.
In this appeal, plaintiffs argue that the trial court erred in dismissing their declaratory judgment action and in overruling their motion for summary judgment.
The declaratory judgment act, section 527.010, RSMo 2000, vests trial courts with the power to "to declare rights, status, and other legal relations whether or not further relief is or could be claimed." A court may grant a declaratory judgment if presented with: (1) a justiciable controversy that presents a real, substantial, presently existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation; (2) a plaintiff with a legally protectable interest at stake, consisting of a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief; (3) a controversy ripe for judicial determination; and (4) an inadequate remedy at law. Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 25 (Mo. banc 2003). The trial court is afforded wide discretion in administering the provisions of the declaratory judgment act. City of St. Louis v. Crowe, 376 S.W.2d 185, 189 (Mo.1964).
In this case, the trial court properly exercised its discretion to dismiss plaintiffs' declaratory judgment petition because each plaintiff had an adequate remedy at law. When plaintiffs filed their declaratory judgment petition, each had the option of raising as a defense the alleged unconstitutionality of HB 1715 and section 577.023. "[W]here [the] alternative remedy is a pending suit, there is even greater justification to apply the rule against allowing declaratory judgment actions." Am. Family Mut. Ins. Co. v. Nigl, 123 S.W.3d 297, 302 (Mo.App. 2003). In other words, as stated in the trial court's judgment, the "constitutional issues should be litigated (if at all) by each plaintiff in each separate criminal case."
PRICE, C.J., RUSSELL, WOLFF, BRECKENRIDGE and STITH, JJ., concur.
FISCHER, J., dissents in separate opinion filed.
ZEL M. FISCHER, Judge, dissenting.
I respectfully dissent from the principal opinion because I disagree that Cindy Brandt has an adequate remedy at law. The statutory purpose of a declaratory judgment action is to "afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." Section 527.120, RSMo 2000.
Michelle Schaefer, Cindy Brandt, and Dale Price, the Appellants, filed a consolidated petition for declaratory judgment in Cole County in May 2009. The petition sought to declare House Bill (HB) 1715 unconstitutional. HB 1715 became effective July 3, 2008, and it repealed and reenacted § 577.023. The portion of HB 1715 that is challenged was enacted as § 577.023.16 and allowed for the admission of evidence regarding the defendant's prior pleas and sentences to intoxication-related traffic offenses when the pleas were made in a municipal division and resulted in a suspended imposition of sentence. This evidence could support an enhanced penalty if Appellants are found to be aggravated, chronic, persistent, or prior offenders.
Appellants' petition sought declaratory judgment because "the State of Missouri may seek, has threatened to seek, or has already sought prior, persistent, aggravated, or chronic offender enhancement status under § 577.023." It then argued that § 577.023 is unconstitutional because it is part of a bill titled "[a]n Act to repeal ... [several sections of legislation] and to enact... twenty new sections relating to watercraft ..." and, therefore, violates Mo. Const. article III, sections 21 and 23. Specifically, the Appellants contended that HB 1715 was changed after its introduction, that the bill includes more than one subject, and that the title does not fairly apprise members of the legislature and the public of its subject.
The challenged provision, § 577.023.16, RSMo Supp.2008, was repealed and reenacted with nearly identical provisions by HB 62 on July 9, 2009.
The Attorney General defended the constitutionality of HB 1715 because the Attorney General is the proper party to defend the constitutionality of a statute. If a declaratory judgment action challenges the constitutionality of a statute, "the attorney general of the state shall also be ... entitled to be heard." Section 527.110. Additionally, the Attorney General represents the State of Missouri on the appeal of felony convictions. Section 547.260.
After Appellants filed their petition, the State filed a motion to dismiss. The trial court overruled the motion. Both parties then filed motions for summary judgment and an agreed statement of uncontroverted material facts. Thereafter, the trial court entered its final judgment in this case sustaining the State's motion for summary judgment, overruling Appellants' motion for summary judgment, and dismissing Appellants' petition with prejudice. The written judgment did not discuss the issue of whether HB 1715 was unconstitutional; instead, it overruled Appellants' motion because they did not establish "`a personal stake in the outcome' necessary to make their constitutional claims litigable... and because these constitutional issues should be litigated (if at all) by each [Appellant] in each separate criminal case."
Both Schaefer and Price pled guilty, rendering their claims moot.
Mo. Const. article III, section 21, prohibits amending any bill through its passage in either house as to change its original purpose. Article III, section 21, states in pertinent part, "[n]o law shall be passed except by bill, and no bill shall be so amended in its passage through either house as to change its original purpose." Article III, section 23, states in pertinent part that "[n]o bill shall contain more than one subject which shall be clearly expressed in its title...." "The purpose of these two sections is `to keep individual members of the legislature and the public fairly apprised of the subject matter of pending laws and to insulate the governor from `take-it-or-leave-it' choices when contemplating the use of the veto power.'" C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 326 (Mo. banc 2000) (quoting Stroh Brewery Co. v. State, 954 S.W.2d 323, 325-26 (Mo. banc 1997)). Together, these constitutional limitations "function in the legislative process to facilitate orderly procedure, avoid surprise, and prevent `logrolling' in which several matters that would not individually command a majority vote are rounded up into a single bill to ensure passage." Stroh Brewery Co., 954 S.W.2d at 325.
"If the title of a bill contains a particular limitation or restriction, a provision that
Here, as finally passed, HB 1715's title was described as being "related to watercraft." Obviously, HB 1715's title does not clearly describe a bill that includes penalty enhancement concerning the operation of motor vehicles while under the influence of alcohol. No reasonable person could read "related to watercraft" and believe or suspect that somewhere in the bill there was a provision relating to criminal conduct that occurs on land while operating a motor vehicle.
The original purpose of the bill must, of course, be measured at the time of the bill's introduction. C.C. Dillon Co., 12 S.W.3d at 327 (Mo. banc 2000). As introduced, HB 1715 related to "watercraft." While the breadth of the term "watercraft" is self-evident, it is not so pervasive as to include redefining the statutory term "conviction" as it is used to characterize prior acts necessary to enhance the punishment of one who operates a motor vehicle on the highways of this state while in an impaired condition, as was done with the bill's amendment to § 577.023.16. No reasonable person would be "fairly apprised" by the title of HB 1715 that it changes the criminal law and what constitutes a conviction for purposes of enhancing punishment for those operating motor vehicles in an impaired condition on land.
"No bill shall contain more than one subject which shall be clearly expressed in its title." Mo. Const. article III, section 23. The main test for determining if a bill violates the single subject rule is laid out in Hammerschmidt v. Boone County, 877 S.W.2d 98, 102 (Mo. banc 1994): "a `subject' within the meaning of article III, section 23, includes all matters that fall within or reasonably relate to the general core purpose of the proposed legislation." However, "the single subject test is not whether individual provisions of a bill relate to each other." The constitutional test focuses on the subject set out in the title. "The dispositive question in determining whether a bill contains more than one subject is whether all provisions of the bill fairly relate to the same subject, have a natural connection therewith, or are incidents or means to accomplish its purpose." Fust, 947 S.W.2d at 428.
In Hammerschmidt, the original purpose and single subject core of the bill was to "amend laws relating to elections." 877 S.W.2d at 103. The bill was amended during the legislative process to include a change to the form of county government, specifically to allow counties that met certain qualifications to adopt a county constitution. Id. This Court held "the bill sent by the legislature to the governor contained two subjects." Id. This Court further held "[t]he amendment authorizing a county to adopt a county constitution does not fairly relate to elections, nor does it have a natural connection to that subject." Id.
Here, as finally passed, HB 1715 carried the title "An Act To repeal sections ... and to enact in lieu thereof twenty-two new sections relating to watercraft, with a penalty provision and emergency clause for a certain section." The original purpose and single subject core of this bill, as
Section 516.500
It is well settled that the challenges to the constitutionality of a statute based on article III, sections 21 and 23, are procedural defects governed by § 516.500.
Moreover, Brandt cannot rely on either express exception to this statute of limitations
The State seeks to avoid a discussion regarding the constitutional merits of this provision and contends that the 2008 version of § 577.023.16 is a procedural law rather than a substantive law and, therefore, it would not be applied to Brandt's criminal case, and her claim is moot.
This Court faced a similar but distinguishable issue in State v. Acton, 665 S.W.2d 618 (Mo. banc 1984). In Acton, a driver pled guilty to driving while intoxicated in 1975 and again in 1979. After the second plea, the General Assembly changed the law to enhance the punishment for a third conviction for driving while intoxicated. Id. After the new law took effect, the driver committed a third offense and was sentenced under the new law. Id. On appeal, the driver argued the new law, as applied to him, violated the ex post facto clause. Id. This Court held that the new law did not punish the driver for his prior convictions, but rather punished him as a repeat offender for his third offense on the basis of a demonstrated propensity for driving while intoxicated. Id. at 619.
The court of appeals subsequently analyzed Acton in the context of a factually similar but distinguishable case in State v. Coomer, 888 S.W.2d 356 (Mo.App.1994). In Coomer, the defendant had pled guilty to three intoxication-related traffic offenses before his arrest for a fourth offense in 1992. The defendant was tried as a persistent offender, and the court had to decide which law applied in determining whether the defendant was a persistent offender—the statute in effect at the time of the offense or that in effect at the time of trial. Id. at 359. The court held that the statute in effect at the time of the offense applied because the later version would have subjected the defendant to more severe punishment than that in effect at the time of the offense. Id. at 360.
The court in Coomer explained that, in Acton, the new law took effect before the commission of the offense for which the defendant was tried; whereas, in Coomer, the new law took effect after the commission of the offense for which the defendant was tried. Id. at 359. The court in Coomer relied on this distinction, noting that the law in effect at the time of the offense
Like Acton, HB 1715 took effect before Brandt committed the offense. But the issue here is complicated by the constitutional infirmity of HB 1715. If HB 1715 is unconstitutional, which the above discussion demonstrates, the immediately proceeding statute would come into force automatically and apply to the Brandt. State ex rel. Daily Record Co. v. Hartmann, 299 Mo. 410, 253 S.W. 991 (Mo. banc 1923).
Under the current state of the law, I would sever the provision of HB 1715 that became § 577.023.16 and declare that provision, which does not relate to watercraft unconstitutional under article III, sections 21 and 23, as clearly demonstrated above. When the procedure by which the legislature enacted a bill violates the constitution, severance is appropriate when this Court is convinced beyond a reasonable doubt that the specific provisions in question are not essential to the efficacy of the bill. Hammerschmidt, 877 S.W.2d at 103-04.
I would reverse the trial court's entry of summary judgment because Cindy Brandt is time barred by the clear, plain, and express language of § 516.500 from raising a defense based on article III, sections 21 and 23, in her criminal case, which remains pending, thus she has no adequate remedy
A recent University of Missouri Law Review article gave another reason the doctrine of severance set out in Hammerschmidt is problematic, stating:
As the frequency of litigation increases, even with the short statute of limitations that is provided in § 516.500, RSMo 2000, there may come a time when this Court should reconsider whether the judicial doctrine of severance has served to support and protect the Missouri Constitution. Mo. Const. article III, section 15; Mo. Const. article VII, section 11; section 476.280, RSMo 2000.
