State v. Honeycutt

LAURA DENVIR STITH, Judge.

I write separately to note that I disagree with the majority’s suggestion that the traditionally recognized meaning of the term “retrospective in operation” in article I, section 13 of Missouri’s constitution necessarily was limited to civil matters. While Ex parte Bethurum, 66 Mo. 545, 550 (Mo.1877), so stated, it did so in reliance on authorities that simply did not directly address the issue.

*427Indeed, Missouri had adopted the current definition of “retrospective laws” at least twelve years prior to Bethurum in State of Missouri v. Garesche, 36 Mo. 256 (Mo.1865), overruled in part on other grounds by Murphy & Glover Test-Oath Cases, 41 Mo. 339, 362 (1867). In that case this Court held that the requirement that officeholders take a loyalty oath was not ex post facto: “Nor can it be said to be a retrospective law, as being retroactive in its operation, for it neither takes away nor impairs any civilly vested rights, nor creates any new obligation, duty or disability, in respect of any past contract, vested right or other civil transaction.” Id. at 259-60. Similarly, Hope Mutual Insurance Co. v. Flynn, 38 Mo. 483, 484 (Mo.1866), states, “A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, is to be deemed retrospective or retroactive.”

Hope cited to Theodore Sedgwick’s 1857 A Treatise on the Rules which Govern the Interpretation and Application of Statutory and Constitutional Law as the source of this definition, but an even earlier reference can be found in the 1814 Justice Story opinion Society for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H.1814). In Wheeler, Justice Story held that, “Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective; and this doctrine seems fully supported by authorities.” Id. I agree with the majority that this is and has been the settled meaning of the term — what the majority calls its “technical definition.”

But this begs the question whether the prohibition against retrospective laws applies to retrospective criminal laws, for nothing in the definition of “retrospective” as set out in Hope or by Judge Story or Sedgwick explains why this settled “technical” meaning is limited to civil laws. Indeed, Justice Story says “every statute” that takes away rights or imposes new obligations or disabilities is retrospective, not “every civil statute.” Similarly, James Kent’s Commentaries on American Law, cited by Garesche, supra, as authority for the definition of “retrospective laws,” states:

Ex post facto laws relate to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively. Retrospective laws and state laws, divesting vested rights, unless ex post facto, or impairing the obligation of contracts, do not fall within the prohibition contained in the Constitution of the United States, however repugnant they may be to the principles of sound legislation.

1 James Kent, Commentaries on American Law Jp51 (8th ed. 185U) (emphasis added). This suggests that criminal laws can be retrospective yet not ex post facto.

Similarly, the authorities to which Story refers do not state that criminal laws that are not within the meaning of ex post facto cannot be otherwise retrospective. The principal authorities cited are the 1798 Supreme Court opinion Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (U.S.1798), and the 1811 opinion of New York’s highest court in Dash v. Van Kleeck, 7 Johns. 477 (N.Y.Sup.Ct.1811). Calder, of course, principally concerned a law that was ex post facto in its application. In distinguishing ex post facto from retrospective laws, Calder said, “Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post *428facto law....” 3 U.S. at 391. This suggests that the term “retrospective” is not limited in scope to civil laws, as ex post facto laws are recognized as a form of retrospective law. As the ban on retrospective laws was intended to supplement the ban on ex post facto laws, which it concededly was, it makes far more sense to understand it to apply to any retrospective law not covered by the already existing ban on ex post facto laws.

Of course, it is true that most retrospective criminal laws already are prohibited by the ban on ex post facto laws. This may be the real reason why Bethurum simply assumed that the ex post facto ban applied to criminal laws and so the retrospective law ban must apply only to civil laws — Bethurum indicated that the framers of the Constitution surely would have wanted to avoid duplication. The supreme courts of the other states with similar provisions also have stated that it applies to civil cases only, albeit again without saying how the term acquired that limitation or what authority supports it.1

Yet, here, the majority says that the gun law at issue here is both retrospective and criminal but does not fall within the ban on ex post facto laws. This disproves its own premise and that on which Bethurum and similar authorities were based, for it is a criminal law not covered by the ex post facto ban. In any event, the majority’s argument proves too much to the extent it says that interpreting the ban on retrospective laws to apply only to retroactive civil laws avoids redundancy, for the ban on retrospective civil laws clearly is redundant with the ban on laws impairing contracts. Such a ban on impairment of contracts has been a part of every Missouri constitution.

I nonetheless concur that this Court should interpret the term “retrospective laws” to apply only to civil laws or laws with a civil, regulatory effect. I do so because, even if the source of the limitation of the application of the retrospective laws limitation is unclear, the fact is that these are the only kinds of cases to which it has been applied. This may simply be because the prohibition on ex post facto laws is so broad that there just were no criminal cases not encompassed within the concept of ex post facto laws until the legislature began to adopt laws regulating and punishing the conduct of sex offenders.

Because of its consistent application only to civil cases for the nearly 200 years since this State’s first constitution was adopted in 1820, I agree the term “retrospective in operation” during that period acquired a meaning that limits it to the civil context— what the state and the majority call its “technical meaning.”

I also note that this limitation of “retrospective laws” to civil matters is consistent with this Court’s application of the ban on retrospective laws in Doe v. Phillips, 194 S.W.3d 833, 837, 842 (Mo. banc 2006), R.L. v. State of Missouri Department of Corrections, 245 S.W.3d 236, 237 (Mo. banc 2008), and F.R. v. St. Charles County Sheriff's Department, 301 S.W.3d 56, 61 (Mo. banc 2010). Doe said that laws requiring offenders to register as sex offenders violated the constitutional prohibition on laws retrospective in operation because they imposed new obligations or new disabilities based solely on past conduct. Doe, 194 S.W.3d at 852. Similarly, the statutes at issue in R.L. and F.R. sought to regulate the actions of sexual offenders by punish*429ing them for engaging in conduct — such as giving out Halloween candy or walking in parks or living in houses near parks — that is perfectly acceptable if performed by persons who are not sex offenders, and it was because of their regulatory effect that the laws addressed in those two cases were held invalid. F.R., 301 S.W.3d at 58, 63-65; R.L., 245 S.W.3d at 237-38.

In contrast, here, Mr. Honeycutt was convicted of carrying a gun in violation of an admittedly solely criminal law that prohibits persons who previously were convicted of particular crimes from carrying firearms. The law is not ex post facto, as it does not criminalize his conduct based solely on the existence of his prior conviction but rather does so based on his current and prospective carrying of a firearm. It therefore was his post-conviction conduct that resulted in his conviction. Accordingly, I concur.

. See, e.g., People v. Dist. Court, 834 P.2d 181, 192-94 (Colo.1992) (en banc); Evans v. State, 252 Ga. 312, 314 S.E.2d 421, 428 (1984); Ex parte Quairier, 4 W.Va. 210, 224 (W.Va.1870); Rich v. Flanders, 39 N.H. 304, 320 (N.H.1859), overruled on other grounds by Caswell v. Maplewood Garage, 84 N.H. 241, 149 A. 746, 753 (1930).