State Ex Rel. City of Crestwood v. Lohman

LAURA DENVIR STITH, Judge,

concurring.

I concur that the Cole County Circuit Court was not bound by the earlier decision of the St. Louis County Circuit Court as to the constitutionality of section 94.577, RSMo Supp.1994, and that the writ of mandamus should be quashed on remand. I write separately because I disagree with the rationale used by the majority to reach this result.

The majority holds that the City of Crest-wood and the St. Louis County Board of Election Commissioners (“the Board”) were not sufficiently adverse as to the issue of the constitutionality of the exception of St. Louis County from the compass of section 94.577 (“the exception”) to create a justiciable controversy on that issue. I would agree with the majority if the City of Crestwood or the Board had simply filed the Declaratory Judgment action to ascertain whether the statutory exception of St. Louis County was unconstitutional before placing the tax proposition on the ballot. As stated in Financial Guar. Ins. v. City of Fayetteville, 943 F.2d 925 (8th Cir.1991):

“[W]hen the parties have no legal dispute, and when the parties request the same relief, there is no case or controversy as required by Article III and the court lacks jurisdiction to grant the requested relief.”

Id. at 929. Wentzville Pub. Sch. Dist. v. Paulson, 699 S.W.2d 132 (Mo.App.1985), applied this principle in holding that no bona fide controversy exists between two parties where they do not make opposing contentions about the meaning of a statute, but rather “both seek only an interpretation of [it].” Id. at 134.1

*33I believe, however, that sufficient adversity was created by the fact that, even though the Board declined to defend the constitutionality of the exception, it specifically refused to place Crestwood’s tax proposition on the ballot unless ordered to do so by the court.2 Thus, in the absence of an order from the Circuit Court, Crestwood could not submit its proposed capital improvements tax to a vote. Crestwood and the Board were, consequently, adverse as to the ultimate issue of placing the tax proposition on the ballot.

As Professor Wright notes, such adversity provides one of the few circumstances in which a case or controversy does exist even though neither of the parties to the action are themselves willing to defend the constitutionality of the statute in question. 13 Charles A. Wright, et al., Federal Practice and Procedure § 3530, at 325 (2d ed. 1984). The United States Supreme Court applied this principle in I.N.S. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). In that case, both the INS and Mr. Chadha agreed that a particular statute was unconstitutional. However, the INS stated that it would nonetheless deport Mr. Chadha as required by the statute unless ordered otherwise by the Court. In light of the adversity of the parties as to the ultimate issue of deportation, the United States Supreme Court held:

“We agree with the Court of Appeals that ‘Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2), the INS will execute its order and deport him.’ ”

462 U.S. at 939-40, 103 S.Ct. at 2778.

Similarly, Adams v. Morton, 581 F.2d 1314 (9th Cir.1978), held that sufficient adversity of the parties was shown where the Secretary of the Interior refused to distribute money to which the appellees claimed they were entitled, stating:

“The fact that the Secretary agrees with the appellees’ statutory interpretation does not affect the power of the court to adjudicate otherwise. Appellant’s cases on collusive litigation are inapposite and have no bearing on the record before us.”

Id. at 1319.3

Missouri appears to have applied a similar rule in City of St. Louis v. Crowe, 376 S.W.2d 185 (Mo.1964). Crowe found the parties were sufficiently adverse because they disagreed as to the ultimate issue before the Court, even though they agreed as to the resolution of certain of the legal questions before the court, stating: “[wjhile agreeing in some respects, the City and the Board are adversary parties in that the Board is threatening to purchase the adapters and the City is objecting thereto.” 376 S.W.2d at 189.

These eases are directly applicable here. The Board may not have wanted to defend the constitutionality of the exception of St. Louis County from the provisions of section 94.577 authorizing a capital improvements tax, but it certainly refused to place such a tax on the ballot until the constitutionality of that exception was determined. The Board and the City of Crestwood were thus sufficiently adverse to create a case or controversy, the St. Louis County Circuit Court had jurisdiction. Its judgment is not void ab initio, and is binding on the parties to that lawsuit.

I nonetheless concur with the majority’s conclusion that the St. Louis County Circuit Court’s decision was not binding on the Director of Revenue. As noted in Jessin v. Shasta County, 274 Cal.App.2d 737, 79 Cal.Rptr. 359 (1969), where (as in the St. Louis County action), no party has briefed important questions of law which the Court is being asked to answer, “the trial court should have declined to express itself on the public *34welfare aspects of the so-called ‘controversy’”. Id. 79 Cal.Rptr. at 364. The United States Supreme Court recognized a similar principle when it stated that, even if a minimal case or controversy exists, where the issues are not fully briefed and presented to the court, then:

“Of course, there may be prudential, as opposed to Art. Ill, concerns about sanctioning the adjudication of these eases in the absence of any participant supporting the validity of [the statute].”

I.N.S. v. Chadha, 462 U.S. at 940, 103 S.Ct. at 2778. Were this case on direct appeal, I would rely on these principles and remand for additional briefing by an amicus curiae on the constitutional issue.4 However, no appeal was taken from the St. Louis County Circuit Court’s decision and the issue here is whether that decision will be given collateral effect in this suit for mandamus against the Director of Revenue. The answer is no. Rule 87.04 itself states that “[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.” (emphasis added).

While the Attorney General did receive Rule 87.04 notice of and an opportunity to intervene or be heard in the St. Louis County Circuit Court action, Crestwood admitted in its answer below that this did not make the Director of Revenue a party to that action. Moreover, it is not contended that the State was either in privity with a party to the St. Louis County suit, or controlled that litigation. To the contrary, it is undisputed that the Attorney General specifically declined to defend on the constitutional issue in the St. Louis County action because he believed this issue was not ripe for determination. The decision in the St. Louis County Circuit Court is therefore not binding on the State, as it was a non-party to that action. As stated in Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989):

“[A] party seeking a judgment binding on another cannot obligate that person to intervene, he must be joined_ Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree.... The linchpin of the ‘impermissible collateral attack’ doctrine — the attribution of preclu-sive effect to a failure to intervene — is therefore quite inconsistent with Rule 19 and Rule 24.”

Id. at 764-65,109 S.Ct. at 2186. It is equally inconsistent with Missouri law. See Land Clearance for Redevelopment Authority v. City of St. Louis, 270 S.W.2d 58, 63 (Mo. banc 1954) (non-party State was not bound by decision).5

Crestwood alternatively argues that the trial court’s issuance of a writ of mandamus should be affirmed because the trial court independently determined that the statute’s exception for St. Louis County was an uncon*35stitutional special law. As the majority notes, before we can examine the merits of this ruling we must determine whether Missouri law permits the trial court to issue a writ of mandamus where, as here, to do so he must first declare a statute unconstitutional.

Crestwood argues that the trial court did have authority to declare the exception unconstitutional. In support, it cites to numerous cases in which the Missouri Supreme Court or Missouri Court of Appeals have examined the constitutionality of a statute in mandamus actions.6 I agree that, on their face, many of those cases could appear to allow the use of mandamus sought by Crest-wood in this action insofar as they hold a statute invalid in the course of determining whether mandamus should issue.

As the majority opinion notes, however, such an interpretation of these cases is inconsistent with the basic principles guiding the grant of writs of mandamus: mandamus may not be used to adjudicate or to establish new rights, but rather is to be used solely to execute or to enforce established law and existing rights. The Supreme Court reaffirmed the viability of these principles only a few months ago. See State ex rel. Chassaing v. Mummert, 887 S.W.2d 573 (Mo. banc 1994) (mandamus may not be used to establish a new right, but only to compel performance of an existing one; it is to execute, not to adjudicate). Moreover, prior Missouri cases have relied on these principles in rejecting the use of mandamus where the writ could issue only if the court first held a statute invalid.7

To the extent it is possible to do so, this Court is bound to follow both the latter cases and those cited by Crestwood. The majority’s analysis of all of these cases does a brilliant job of doing just that, and thereby brings order and sense to what is otherwise a very confusing and difficult area of the law. It will provide essential guidance to those seeking mandamus relief in eases involving the validity of a statute until such time as the Missouri Supreme Court should decide to reexamine and simplify the rules governing the availability of mandamus in such cases.

For these reasons, I concur that the Cole County Circuit Court erred in issuing its writ of mandamus against the Director of Revenue based either on the supposedly preclu-sive effect of the St. Louis County Circuit Court judgment, or on its own independent determination of unconstitutionality.

This does not leave the City of Crestwood without a remedy. It may file a new declaratory judgment action, to which the Director is made a party, in which it asserts the unconstitutionality of the exception in section 94.577 and the obligation of the Director to administer, collect and enforce the tax. Presumably, the Director (unlike the Election Board) will affirmatively defend the constitutionality of the exception and the issues will be joined and finally resolved.

. In a situation even more analogous to the instant case, Harford County v. Schultz, 280 Md. 77, 371 A.2d 428, 429 (1977), specifically held that no case or controversy arose where the plaintiff attacked the validity of a provision of a county charter and the nominal defendant took no position as to the validity of the provision. See also City of Peoria v. General Elec. Cablevision Corp., 690 F.2d 116, 120 (7th Cir.1982) (no case or controversy if neither party asserted rule was valid).

. The majority notes that this fact was not stated in the Petition itself. It was, however, testified to at the hearing without objection and the St. Louis County Circuit Court so found in its decision ordering placement of the tax increase on the ballot.

. Accord Kentucky v. Indiana, 281 U.S. 163, 173, 50 S.Ct. 275, 277, 74 L.Ed. 784 (1930) (case or controversy existed because “[t]he state of Indiana, while desiring to perform its contract, is not going on with its performance because of a suit brought by its citizens in its own court. There is thus a controversy between the states, although a limited one.”).

. The latter is what occurred in Chadha; the Supreme Court approved of the fact the Court of Appeals invited Congress to submit amicus briefs in support of the statute in question, stating, "We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Id. See also Land Clearance for Redev. Auth. v. City of St. Louis, 270 S.W.2d 58, 63 (Mo. banc 1957) (intervenor provided adversity); Brennan v. Occupational Safety & Health Review Comm'n, 505 F.2d 869, 870-71 (10th Cir.1974) (a case or controversy was presented because an interested party had filed an amicus brief attacking the regulation).

. Had the Attorney General actually taken a fuller part in the St. Louis County action by arguing the constitutional issue following notice under Rule 87.04, preclusion would present different issues. As noted in Adams v. Morton, 581 F.2d 1314 (9th Cir.1978):

"[A] non-party who thus participates in litigation has an interest sufficiently close to the matter in litigation, and had adequate opportunity to litigate in support of or in defense against the cause of action on which the suit is based, the policies underlying the doctrine of judicial finality require that the participating non-party should be bound by the resulting judgment to the same extent as though he were a party to the action.”

Id. at 1318. Adams held that, even though the interested parly had not formally intervened, it was bound by the judgment because of its full, if informal, participation in the case.

. See cases cited by majority supra, op. at 27-28.

. See, e.g., State ex rel. Seigh v. McFarland, 532 S.W.2d 206, 209 (Mo. banc 1976), and State ex rel. Gladfelter v. Lewis, 595 S.W.2d 788, 790 (Mo.App.1980) (both holding that mandamus lies only to enforce a plain ministerial duty, and a duty cannot be considered plain or ministerial if it only exists once one declares a statute unconstitutional).