dissenting.
I respectfully dissent.
The majority misapplies the open courts provision to afford plaintiffs a cause of action for dram shop liability that the statute does not permit, and in the process overrules Simpson v. Kilcher, 749 S.W.2d 386 (Mo. banc 1988), without giving Simpson the courtesy of addressing its compelling rationale, much less paying any consideration to the principles of stare de-cisis.
I.
I have no disagreement with the majority’s statement of the law regarding Missouri’s “open courts” provision, so far as the statement goes. As the' majority explains, “article I, section 14, ‘prohibits any law that arbitrarily or unreasonably bars individuals or classes of individuals from accessing our courts in order to enforce recognized causes of action for personal *555injury,’ ... yet it does not prohibit the legislature from modifying] or abolish[ing] a cause of action that had been recognized by the common law or by statute.” (citations omitted). I would add to these principles, although perhaps it is implicit in them, that statutes imposing procedural bars to access are to be distinguished from statutes that change the common law by the elimination or limitation of a cause of action, and that only the former are impermissible. Adams v. Children’s Mercy Hospital, 832 S.W.2d 898, 905 (Mo. banc 1992).
A.
The majority misapplies these principles by holding that the conviction requirement of section 537.053.3 arbitrarily and unreasonably bars individuals from accessing our courts in order to enforce the statutorily recognized cause of action for dram shop liability. In my view, the conviction requirement is a substantive element of the statutory cause of action rather than a procedural bar. This same idea, as stated in Simpson v. Kilcher, 749 S.W.2d at 389, is that the conviction requirement “is not a precondition to access to the courts - it is a condition to the existence of a cause of action.” The language of the statute shows this clearly:
Notwithstanding subsections 1 and 2 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises who, pursuant to section 311.310, RSMo, has been convicted, or has received a suspended imposition of the sentence arising from the conviction, of the sale of intoxicating liquor to a person under the age of twenty-one years or an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person.
Section 537.053.3.
The structure of the statute, which was the basis of the Simpson Court’s analysis and which, inexplicably, the majority makes no effort to address, consists of four substantive elements or conditions to the cause of action:
A. plaintiff suffered personal injury or death,
B. defendant was licensed to sell intoxicating liquor by the drink,
C. pursuant to section 311.310, RSMo, defendant was convicted, or received a suspended imposition of sentence of the sale of intoxicating liquor ... to an obviously intoxicated person, and
D. the sale of such intoxicating liquor was the proximate cause of the personal injury or death sustained by plaintiff.
In order to find the statute constitutionally infirm by characterizing the conviction requirement as a procedural bar rather than a substantive element, the majority necessarily rewrites the statute to delete element “C,” the conviction requirement, from the cause of action proper. Only then does the conviction requirement stand independent from the elements of the cause of action and thus allow the majority to challenge it as a procedural bar.
B.
Even if the conviction requirement is somehow independent from the elements of the cause of action proper, it still does not follow that the requirement is a “procedural” bar that impermissibly denies access to the courts. To be sure, the conviction requirement is a precondition to the cause of action, but it is a substantive precondition that is not dependent on any procedural requirement that plaintiff must satisfy. Indeed, there can be no procedural requirement, or procedural bar, to a cause of action that has not yet accrued, and here the cause of action cannot accrue until the substantive precondition of a criminal conviction is met.
*556Examples of procedural bars that violate the open courts provision, as set out in the majority opinion, include 1) State ex rel. Cardinal Glennon Memorial Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), in which this Court invalidated a requirement that a medical malpractice plaintiff submit his or her claim to a professional liability board for a recommendation before filing a lawsuit in court; 2) Schumer v. City of Perryville, 667 S.W.2d 414 (Mo. banc 1984), in which this Court invalidated the requirement, as applied to a minor who was legally incapable of bringing his own action, of giving notice of his claim before suing a municipality; and 3) Strahler v. St. Luke’s Hosp., 706 S.W.2d 7 (Mo. banc 1986), in which this Court held that the two-year statute of limitations for actions against health care providers, as applied to minors, violated the open courts provisions by cutting off a minor’s claim before the minor was able to bring suit on his or her own behalf. In each of these cases, and contrary to the case..at hand, the statute required plaintiff to undertake some unreasonable or arbitrary, or even impossible act or procedure in order to perfect the cause of action after it had already accrued. In Cardinal Glennon, plaintiff could not file his cause of action before presenting the case to a professional liability board for review; in Schumer and Strahler, plaintiffs, who were minors, were required to bring their cause of action within a statute of limitations that expired before they attained majority. Furthermore, in each of these cases, and unlike the case at hand, the unconstitutional procedural bar kept plaintiffs from bringing suit on a cause of action that had already accrued. There is simply no con--nection between the conviction requirement in this case and the kinds of unconstitutional procedural requirements in these earlier cases.
II,
The majority’s analysis of the secondary issues regarding separation of powers and equal protection is equally unpersuasive. The separation of powers claim, as I understand it, is that the legislative department wrongfully delegated to executive department prosecutors the authority to determine the existence of the cause of action for dram shop liability. This delegation purportedly occurs by virtue of the fact that prosecutors ultimately decide whether to file or refuse to file charges that might result in a criminal conviction under section 311.310 - the conviction requirement of section 537.053.3. As with the open courts claim, the majority is unwilling to acknowledge that the conviction requirement is a substantive element of the cause of action. The cause of action is set entirely by the legislature, and prosecutors take no part in dictating the elements of that cause of action. Furthermore, there is no legislative delegation of power to the prosecutors for the purpose of allowing them to dictate, at least in part, if and when a cause of action exists. The role of prosecutors in securing criminal convictions under section 311.310 is solely to fulfill their statutory duty under section 56.060, RSMo 1994, to file charges for violating the criminal laws of this state. Regarding the alleged equal protection violation, I need only reiterate the Simpson Court’s reasoning that the conviction requirement’s purpose - “[to confine] the liability of liquor licensees to those cases where conduct is so flagrant it becomes objectively provable by criminal conviction” - provides a rational basis for that element of the cause of action. Simpson v. Kilcher, 749 S.W.2d at 392.
III.
Assuming, arguendo, that section 537.053.3’s conviction requirement is, in fact, an open courts, separation of powers or equal protection violation, plaintiffs still are left without a cause of action. The conviction requirement cannot be severed from section 537.053.3 so to leave the'balance of the section intact, and yet severance is essential to the majority’s recognition of a statutory cause of action that is *557not limited by the conviction requirement. Whether the conviction requirement is a substantive element of the cause of action for dram shop liability, as I see it, or an unconstitutional procedural bar to the cause of action, as the majority sees it, the legislature made abundantly clear that the only “recognized” cause of action is a cause of action limited by the conviction requirement. If the conviction requirement is unconstitutional, then there is no cause of action at all.
The severability issue is governed by section 1.140, RSMo 1994, which states:
The provisions of every statute are severable. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
In this case, the legislative intent on which the severability issue depends is found in sections 537.053.1 and 537.053.2, the two other sections of the dram shop statute. In fact, these sections are express statements of legislative intent, and they are couched in words as clear and forceful as possible:
1. Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in section 1.010, RSMo, to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.
2. The legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983); Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1980); and Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App.1981) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person.
Despite the legislative intent, or rather the legislative mandate, that there will be no dram shop liability in Missouri except for the limited cause of action in section 537.053.3, the majority severs the limitation and holds that a cause of action exists, nonetheless. The effect of severing the limitation on the cause of action for dram shop liability is to convert the cause of action to one with essentially the same elements as the court-made action that first appeared in the early 1980s and that the legislature now expressly disallows.
Using the terminology of section 1.140,1 would hold that the valid provisions of section 537.053.3 (the cause of action for dram shop liability) are so essentially and inseparably connected with, and so dependent upon, the void provision, (the conviction requirement) that it cannot be presumed the legislature would have enacted the valid provisions without the void one, and further, that the valid provisions of section 537.053.3, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent. Under section 1.140, therefore, and assuming that the conviction requirement is an open courts, separation of powers, or equal protection violation, the provisions of section 537.053.3 must be stricken in their entirety.
As stated, however, I would not reach the severance issue because I would hold, in the first instance, that the conviction requirement is not unconstitutional. For *558that reason I would affirm the judgment of the trial court.