Ed Taylor, Appellant v. State of Missouri, et al., Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: Ed Taylor, Appellant v. State of Missouri, et al., Respondents. Case Number: SC88559 Handdown Date: 03/18/2008 Appeal From: Circuit Court of Ste. Genevieve County, Hon. Kenneth W. Pratte Counsel for Appellant: Denise D. Lieberman Counsel for Respondent: Paul C. Wilson, Alana M. Barragan-Scott and Timothy Inman Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Overview: A taxpayer sought relief under the state's Hancock Amendment for concealed-weapon permits Ste. Genevieve County issued under the original version of the state's concealed-carry act. In a unanimous decision written by Judge Michael A. Wolff, the Supreme Court holds that there is no more relief this Court can grant because the Hancock Amendment provides only for declaratory relief; because this Court previously declared that the original version of the act violated the Hancock Amendment; and because invalidating permits issued under the act's original version would not remedy an unfunded mandate. Because the taxpayer's suit is not sustained, he also is not entitled to attorneys' fees or costs under the Hancock Amendment. Facts: In 2003, sections 50.535, 571.030 and 571.094, RSMo Supp. 2004, were enacted. These sections, collectively referred to as the "concealed-carry act," set forth requirements for obtaining a permit to acquire a concealable firearm.

Section 571.094 requires a person seeking a permit to apply to the sheriff in the county where the applicant resides and, if the applicant meets the qualifications, the section requires the sheriff to issue the concealed firearm permit. In its original form, section 50.535 authorized counties to charge a fee for such permits and provided that the fee be deposited into the county sheriff's revolving fund. Under section 50.535, sheriffs may use the revolving-fund principal only to purchase equipment and to provide training. After a challenge by a group of taxpayers, this Court upheld the constitutional validity of the concealed-carry act but, because there are expenses involved in processing permits that go beyond the purchase of equipment and training, it held that sections 571.094 and 50.535 contained unfunded mandates in violation of the Hancock Amendment – article X, section 16 through 22 of the Missouri Constitution. Brooks v. State, 128 S.W.3d 844 (Mo. banc 2004). The taxpayers in Brooks presented evidence that the permit fee was not sufficient to cover the costs of complying with the law in Camden, Cape Girardeau, Greene and Jackson counties. After determining that section 571.094 and 50.535 contained an unfunded mandate, the Court in Brooks enjoined the state from enforcing section 571.094 in those four counties. In 2005, the legislature enacted section 50.535, RSMo Supp. 2006, which addresses the Hancock violation identified in Brooks by allowing the sheriff of every county to pay, from the sheriff's revolving fund, all reasonable and necessary costs of processing permit applications. Ste. Genevieve resident Ed Taylor subsequently sued the state, arguing that the concealed-carry act violates the Hancock Amendment and that concealed-weapons permits issued under the act should be invalidated. The trial court entered summary judgment for the state. Taylor appeals. AFFIRMED. Court en banc holds: The trial court properly entered summary judgment for the state because the relief Taylor seeks either already has been granted in this Court's decision in Brooks or is not permitted under the Hancock Amendment. Because he does not allege that he personally was assessed an unlawful fee or tax, Taylor claims only taxpayer standing drawn exclusively from the Hancock Amendment and, as a result, is limited to the relief the Hancock Amendment offers. Pursuant to article X, section 23, the remedy for a Hancock violation is an interpretation of limitations. In other words, the Hancock Amendment only allows a court to provide declaratory relief – declaring whether a statute is constitutional – and to enforce the declaratory judgment through other forms of relief, where a party acts contrary to the judgment. It does not permit a court to enter a judgment for damages or injunctive relief. Here, however, there is no

allegation that the state has refused to comply with this Court's decision in Brooks; no county aggrieved by an unfunded mandate is a plaintiff here; and the relief Taylor seeks already was rendered in Brooks. Accordingly, there is no need for the Court to take further action. Taylor asks this Court to declare "null and void" any permits Ste. Genevieve County issued prior to the Brooks decision, but such relief would be inappropriate because the only remedy for an unfunded mandate is to declare either that the mandate is unconstitutional or that the state must provide full funding. Voiding permits would not restore to the county and its taxpayers the money that was expended in issuing the permits. Finally, because article X, section 23 allows a plaintiff's costs to be paid only if the "suit is sustained," Taylor's request for attorneys' fees and costs is denied. Citation: Opinion Author: Michael A. Wolff, Judge Opinion Vote: AFFIRMED. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. Introduction Ed Taylor, a resident of Ste. Genevieve County, filed suit against the State of Missouri challenging the constitutionality of the state's "Concealed-Carry Act," which authorizes the issuance of permits for persons to carry concealed firearms. Specifically, Taylor claimed that the statute violates article X, section 16 through 22 of the state constitution, known as the "Hancock Amendment," and that concealed weapons permits issued under the law should be invalidated. The trial court entered summary judgment for the state and Taylor appealed. Because the constitutionality of a state statute is at issue, this Court has jurisdiction to hear the appeal. Mo. Const. art. V, section 3. Missouri's Concealed Carry Act

The General Assembly in 2003 enacted, over the governor's veto, sections 50.535, 571.030 and 571.094, which set forth requirements for obtaining a permit to acquire a concealable firearm. Section 571.094 provided that a person seeking such a permit must submit an application to the sheriff in the county where the applicant resides. Id. If the applicant met the qualifications for a concealed firearm permit set forth under the statute, section 571.094 directed the sheriff to issue a permit. Section 571.094.5, RSMo Supp. 2004. The statute, in its original form, authorized counties to charge a fee for such permits. Id. at subsection 7. Section 50.535(2) provided that the fee "shall be deposited by the county treasurer into a separate interest-bearing fund to be known as the County Sheriff's Revolving Fund." Section 50.535, RSMo Supp. 2004, authorized county sheriffs to use funds from the sheriff's revolving fund to purchase equipment and provide training. Brooks v. State This Court addressed the constitutionality of sections 571.094 and 50.535, RSMo Supp. 2004, in Brooks v. State, 128 S.W.3d 844 (Mo. banc 2004). In Brooks, a group of taxpayers alleged that the Concealed-Carry Act violates the constitution and that the funding scheme of section 571.094 violated the Hancock Amendment. Id. at 846. The Hancock Amendment prohibits the state from "requiring any new or expanded activities by counties and other political subdivisions without full state financing, or from shifting the tax burdens to counties and other political subdivisions." Mo. Const. art. X, section 16. The plaintiffs in Brooks argued that section 571.094 violated this Hancock Amendment prohibition against "unfunded mandates" by requiring expanded activities of the county sheriff without providing full state financing. Id. at 848. The Court in Brooks upheld the constitutionality of the Concealed-Carry Act, but concluded that the funding provisions did not comply with the Hancock Amendment. In evaluating the constitutionality of section 571.094 under the Hancock Amendment, the Court considered whether the requisite processing fee was sufficient to cover the expenses of processing the application. Id. at 850. The Court noted that section 571.094.10 instructed county sheriffs to deposit the

processing fees into the sheriff's revolving fund. Id. at 848. Once the processing fees were deposited in the revolving fund, section 50.535, RSMo Supp. 2004, mandated that the sheriff could only use the revolving fund principal "for the purchase of equipment and to provide training." Since there are expenses involved in the permit processing beyond the purchase of equipment and training, however, section 571.094 required "expanded activities" without full state financing. Id. at 850. Because these statutes contained unfunded mandates, the Court held that sections 571.094 and 50.535, RSMo Supp. 2004, violated the Hancock Amendment. Id. The plaintiffs in Brooks presented evidence that the permit fee was not sufficient to cover the costs of complying with the law in Camden, Cape Girardeau, Greene and Jackson counties. Id. at 851. After determining that section 571.094 and 50.535, RSMo Supp. 2004, contained an unfunded mandate, the Court in Brooks entered judgment enjoining the state from enforcing section 571.094 in these four counties. Id. Section 50.535, RSMo Supp. 2006 After the court in Brooks declared the Concealed-Carry Act's funding mechanism unconstitutional, the legislature in 2005 enacted section 50.535, RSMo Supp. 2006. Section 50.535 (Supp. 2006) provides that "the sheriff of every county, regardless of classification, is authorized to pay, from the sheriff's revolving fund, all reasonable and necessary costs and expenses for activities or services occasioned by compliance with sections 571.101 to 571.121." Id. Under the revised statute, these costs include, but are not limited to "the purchase of equipment, training, fingerprinting and background checks, employment of additional personnel, and any expenditure necessitated by an action under section 571.114 or 571.117." Id. By providing for payment of "all reasonable and necessary costs" of processing the permit applications, the revised funding mechanism under section 50.535, RSMo Supp. 2006, addressed the Hancock violation identified in Brooks.(FN1) Taylor's Claims

Taylor argues that, because the Court in Brooks declared the funding scheme of sections 571.094 and 50.535, RSMo Supp. 2004, unconstitutional, the concealed-carry permits issued under this section should be declared "null and void." Before analyzing his claim, it is important to note that Taylor draws his standing exclusively from the Hancock Amendment, since he does not allege that he, himself, was assessed an unlawful fee or tax. Mo. Const. art X, sec. 23, part of the Hancock Amendment, provides that "any taxpayer of the state, county or other political subdivision shall have standing to bring suit in a circuit court of proper venue and additionally, when the state is involved, in the Missouri supreme court, to enforce the provisions of sections 16 through 22, inclusive of this article." Taylor is confined, therefore, to the relief offered by the Hancock Amendment. The heading of article X, section 23 of the Missouri Constitution describes the nature of the remedy for a Hancock Amendment violation. It reads "Taxpayers may bring actions for interpretations of limitations." Id. An interpretive remedy, in this context, allows the court to interpret a particular statute in light of constitutional limitations. In other words, section 23 authorizes declaratory relief but does not mention other forms of relief, such as injunction or damages. See Fort Zumwalt School Dist. v. State, 896 S.W.2d 918, 923 (Mo. banc 1995). The court may, under article X, section 23, declare a statute constitutional or unconstitutional. The limited nature of the declaratory, or interpretive, remedy does not authorize a court to enter a judgment for damages or injunctive relief.(FN2) Inherent in the courts' power to enter a declaratory judgment, however, is the power of the court to enforce the judgment through other forms of relief where a party acts contrary to a court's declaratory judgment. As such, had the court previously entered a declaratory judgment on a statewide basis, as it did in Brooks, and the state refused to comply, the court could then enter an injunction to enforce the declaratory judgment. Where, as here, there is no allegation that the state has refused to comply with this Court's decision in Brooks, there is no need for the Court to take further action

than the declaration of the law made in Brooks. Brooks declared the funding mechanism of section 571.094 unconstitutional, a decision that constituted an "interpretation of limitations" under article X, section 23 of the Missouri Constitution. This is the relief Taylor seeks in this lawsuit, and it already has been rendered in Brooks. There is no question as to a damages remedy, and no county aggrieved by an unfunded mandate is a plaintiff here. Taylor, who does not assert standing to seek damages for himself, asks this Court to declare any permits issued by Ste. Genevieve County prior to the Brooks decision "null and void" in order to remedy the alleged unfunded mandate. Such relief would not be appropriate because it would not remedy an unfunded mandate. The only remedy for an unfunded mandate is to declare the mandate unconstitutional or to declare that the state must provide full funding. Voiding the permits does not in any way restore to the county and its taxpayers the money that was expended in issuing the permits. Conclusion Because this Court has already issued an "interpretation of limitations" under article X, section 23, Taylor's prayer for declaratory relief is seeking relief that already has been granted. Taylor's request that the Court invalidate the permits issued under the pre-Brooks version of the statute would not remedy an unfunded mandate. Because article X, section 23 allows for payment of plaintiff's costs only where his "suit is sustained," Taylor's prayer for attorneys fees and costs is denied. The judgment is affirmed.

All concur. Footnotes: FN1.Section 50.535, RSMo Supp. 2006, also provides that if "the maximum fee permitted by section 571.101, RSMo, is inadequate to cover the actual reasonable and necessary expenses in a given year, and there are not sufficient accumulated unexpended funds in the revolving fund, a sheriff may present specific and verified evidence of the unreimbursed expenses to the office of administration, which upon certification by the attorney general, shall reimburse such sheriff for those expenses from an appropriation made for that purpose." Id. FN2.Missouri's Declaratory Judgment Act, section 527.010, outlines the nature of the declaratory remedy. It states, "The circuit courts of this state, within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree." Id. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.