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Alpert v. State

Supreme Court of Missouri, En Banc

April 3, 2018

JACK ALPERT, Appellant,
STATE OF MISSOURI, et al., Respondents.

          APPEAL FROM THE CIRCUIT COURT OF JOHNSON COUNTY The Honorable William B. Collins, Judge


         Jack Alpert (hereinafter, "Alpert") filed a declaratory judgment action against th state of Missouri, the attorney general, and the prosecuting attorney for Johnson County Missouri (hereinafter and collectively, "the state"), seeking a declaration the state coul not enforce section 571.070, RSMo Supp. 2013, [1] against him without violating article I section 23 of the Missouri Constitution and the Second Amendment to the United State Constitution. This Court holds Alpert's pre-enforcement constitutional challenges are rip for determination, and section 571.070 withstands constitutional scrutiny. The circuit court's judgment is affirmed.[2]

         Factual and Procedural History

         In 1970, Alpert pleaded guilty to possession of a controlled substance in Pettis County, Missouri, and was sentenced to three years' imprisonment. In 1975, Alpert pleaded guilty to possession of a controlled substance in federal district court and received a two-year sentence. Alpert successfully completed both sentences.

         In 1983, Alpert filed an application pursuant to 18 U.S.C. § 925(c) with the United States attorney general to restore his right to possess a firearm, which was prohibited due to his felony convictions. Alpert's application was granted. In 1986, Alpert applied for a federal firearms license, class 01 (hereinafter, "FFL01 license"), a three-year, renewable license, permitting one to deal firearms. After the license was issued, Alpert began buying and selling firearms. Alpert's license was renewed regularly.

         In 2007, Alpert founded Missouri Bullet Company (hereinafter, "MBC"), a cast bullet manufacturer.[3] In 2008, the General Assembly amended section 571.070, making it unlawful for any person who has been convicted of a felony under Missouri law "or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony, " to possess a firearm. When Alpert attempted to renew his FFL01 license, he was told he could not because of the 2008 amendment to section 571.070. Consequently, Alpert was required to surrender his FFL01 license.

         Alpert filed a declaratory judgment action raising facial and as-applied challenges to section 571.070. Alpert sought a declaration that section 571.070 could not be enforced against him without violating the Missouri and United States constitutions. Alpert set forth facts demonstrating his law-abiding behavior since completing his sentences and having his federal gun rights restored. Alpert's petition further alleged he wished to possess two family heirloom pistols and a rifle he was awarded in 1993. Alpert maintained his claims were ripe because the facts necessary to adjudicate the claims were developed fully, section 571.070 affected him in a manner giving rise to an immediate, concrete dispute, and he lacked an adequate remedy at law.

         The parties filed competing motions for summary judgment. Alpert alleged section 571.070 was unconstitutional as applied to him because it was underinclusive, overinclusive, and its prohibition barring felons from possessing firearms was not longstanding. The state countered Alpert's claims were not ripe because he was not being prosecuted or threatened with prosecution for violating section 571.070. The state also argued Alpert, as a convicted felon, categorically was excluded from Second Amendment protections, and, therefore, his facial and as-applied challenges must fail.

         The circuit court sustained the state's motion. The circuit court rejected the state's ripeness argument, finding it would be improper to bar Alpert's pre-enforcement action because it would require him to violate the law before proceeding. The circuit court held section 571.070 did not violate the Missouri or United States constitution primarily because felons categorically are removed from the group of people who can claim the protections of those constitutional provisions. Alpert appeals.[4]


         This Court first must determine whether Alpert's constitutional claims are ripe. The state argues Alpert's challenges are not ripe because he failed to present sufficient facts to establish a fully developed claim, and section 571.070 does not affect Alpert such that there is an immediate, concrete dispute. The state further maintains Alpert has not been charged with violating section 571.070, he has not been threatened with prosecution, there is no evidence he currently possesses any firearms, and he has other remedies at law. Alpert counters the state sought summary judgment and did not present any disputed facts requiring further development. Alpert also contends he demonstrated an immediate, concrete dispute existed because he was able to possess firearms lawfully from the time his rights were restored in 1986 until 2008 when section 571.070 was amended.

         "The stated purpose of the declaratory judgment act is to allow parties 'to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.'" Planned Parenthood of Kan. v. Nixon, 220 S.W.3d 732, 738 (Mo. banc 2007) (quoting section 527.120, RSMo 2000). "A declaratory judgment action has been found to be a proper action to challenge the constitutional validity of a criminal statute or ordinance." Tupper v. City of St. Louis, 468 S.W.3d 360, 368 (Mo. banc 2015). However, "[a] court cannot render a declaratory judgment unless the petition presents a controversy ripe for judicial determination." Lebeau v. Comm'rs of Franklin Cnty., Mo., 422 S.W.3d 284, 290-91 (Mo. banc 2014) (quoting Mo. Health Care Ass'n v. Attorney Gen. of the State of Mo., 953 S.W.2d 617, 621 (Mo. banc 1997)). "A ripe controversy exists if the parties' dispute is developed sufficiently to allow the court to make an accurate determination of the facts, to resolve a conflict that is presently existing, and to grant specific relief with a conclusive character." Mo. Health Care Ass'n, 953 S.W.2d at 621.

         When the challenge involves the constitutional validity of a statute, "a ripe controversy generally exists when the state attempts to enforce the statute." Id. Yet, there are situations in which a ripe controversy may exist prior to the statute being enforced. S.C. v. Juvenile Officer, 474 S.W.3d 160, 163 (Mo. banc 2015). Pre-enforcement constitutional challenges are ripe when: (1) "the facts necessary to adjudicate the underlying claims [are] fully developed" and (2) the law at issue affects the plaintiff "in a manner that [gives] rise to an immediate, concrete dispute." Mo. Health Care Ass'n, 953 S.W.2d at 621.

         The state argues Alpert did not present enough fully developed facts to establish a claim, only a desire to possess certain firearms.[5] The state alleges Alpert's mere desire to possess firearms, coupled with the possibility Alpert may be charged with violating section 571.070, results in a hypothetical or speculative situation that is not ripe. The state analogizes Alpert's claim to several cases in which pre-enforcement challenges were held not ripe.

         To support its arguments, the state first relies on Turner v. Missouri Department of Conservation, 349 S.W.3d 434, 445-46 (Mo. App. S.D. 2011), which held a pre-enforcement challenge was not ripe because the plaintiff was never charged with a violation and additional facts needed to be developed. The court found the plaintiff's challenge was not ripe because he failed to demonstrate the department interrupted or prevented a particular course of conduct. Id. Here, Alpert alleged he was able to possess firearms legally for more than twenty-five years after having his rights restored and obtaining his FFL01 license. However, once section 571.070 was amended, Alpert's previous conduct was interrupted or prevented because his FFL01 license was revoked and he could no longer possess firearms.

         Courts have held the interruption or prevention of previous lawful conduct supports adjudicating pre-enforcement challenges on the merits. See Borden Co. v. Thomason, 353 S.W.2d 735, 740 (Mo. banc 1962) (holding a pre-enforcement challenge was ripe when the plaintiff did not violate the statute, but alleged it previously engaged in activities now prohibited by statute and wished to engage in those now-barred activities in the future); Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. banc 1982) (finding a justiciable controversy existed when a business challenged the constitutional validity of a statute prohibiting the business' previously lawful activities, even though no statutory enforcement had commenced); Bldg. Owners & Managers Ass'n of Metro. St. Louis, Inc. v. City of St. Louis, Mo., 341 S.W.3d 143, 149 (Mo. App. E.D. 2011) (holding a controversy was ripe when the ordinance changed the way business association members had to conduct business, even though statutory enforcement had not occurred); Mo. Health Care Ass'n, 953 S.W.2d at 621 (holding a ripe controversy existed challenging statutes altering the plaintiffs' way of doing business and subjecting them to penalties for violating the statutes, even though the statutes had yet to be enforced).

         The state also relies on Foster v. State, 352 S.W.3d 357 (Mo. banc 2011), Schweich v. Nixon, 408 S.W.3d 769 (Mo. banc 2013), and J.H. Fichman Co., Inc. v. City of Kansas City, 800 S.W.2d 24 (Mo. App. W.D. 1990), all of which rejected pre-enforcement challenges, in part due to specific, factual, future events that needed to occur before the controversy was ripe. In Foster, the prisoner needed to accumulate sufficient funds to trigger the state's seizure under the Missouri Incarceration Reimbursement Act. Foster, 352 S.W.3d at 361. In Schweich, the auditor had to await the fiscal year's end to determine whether the governor's fund withholding was an exercise of constitutional authority. Schweich, 408 S.W.3d at 779. In J.H. Fichman, the court noted the nature of the challenger's business and that the pleadings addressing only certain items banned by the ordinance would not end the controversy because it would not address items not brought to the court's attention or subsequently obtained for resale to the public. J.H. Fichman, 800 S.W.2d at 27.

         By contrast, Alpert's pre-enforcement constitutional claims present predominantly legal questions, such as whether section 571.070 as applied to him violates the Missouri and United States constitutions' rights to bear arms. "Cases presenting predominantly legal questions are particularly amenable to a conclusive determination in a pre-enforcement context, and generally require less factual development." Planned Parenthood, 220 S.W.3d at 739 (internal quotations omitted); see also Mo. Health Care Ass'n, 953 S.W.2d at 622 (holding a controversy was ripe when "[n]o speculation or additional fact-finding was required" to determine how the plaintiffs were affected by the statute); Bldg. Owners, 314 S.W.3d at 149 (finding a case ripe when the plaintiff presented largely legal questions needing little factual development); Tupper, 468 S.W.3d at 370 (finding a red light camera challenge was ripe because it presented predominantly legal questions not requiring further factual development); Mo. Alliance for Retired Ams. v. Dep't of Labor and Indus. Relations, 277 S.W.3d 670, 678-79 (Mo. banc 2009) (holding a pre-enforcement challenge to workers' compensation exclusivity provisions was ripe because no factual development was necessary to address the legal question). Alpert's status as a prior felon and his desire to possess firearms, despite the statute's prohibition, need no additional factual development and present an immediate, concrete dispute, especially given the revocation of Alpert's FFL01 license after section 571.070 was amended in 2008.

         The state also contends Alpert needs to possess firearms illegally, be prosecuted, or be threatened with prosecution before he can raise his constitutional claims. In that vein, the state argues Alpert has an adequate remedy in that he can raise his constitutional claims as a defense if and when the state chooses to prosecute.

         This Court repeatedly has rejected the notion a person must violate the law to create a ripe controversy. For example, in Tietjens v. City of St. Louis, 222 S.W.2d 70, 72 (Mo. banc 1949), this Court disregarded the argument a declaratory judgment action was premature when the plaintiff had not violated the ordinance being challenged because the ordinance had been duly adopted, it affected the plaintiff, and it must be assumed the city will enforce its laws. See also Borden, 353 S.W.2d at 741 (finding even though the plaintiff failed to identify a single right that was curtailed or infringed, this Court explicitly held the fact the plaintiff had not violated the statutes did not make the action premature).

         In Nicolai v. City of St. Louis, 762 S.W.2d 423, 425 (Mo. banc 1988), a plaintiff filed a declaratory judgment action challenging a cat kennel licensing ordinance prior to being cited with a violation. This Court rejected the city's argument the plaintiff could raise his challenge as a defense in a subsequent criminal prosecution. Id. This Court explained the claim was "ripe for judicial resolution, and there was no need for him to await criminal prosecution before seeking a determination of his rights." Id.; see also Planned Parenthood, 220 S.W.3d at 738 (holding the plaintiffs' constitutional claims were ripe even though neither the attorney general nor the state had attempted to enforce the statute yet); Bldg. Owners, 341 S.W.3d at 149 (finding a pre-enforcement challenge was ripe even though the plaintiffs would be subject to criminal penalties if they violated the ordinance's provisions); Tupper, 468 S.W.3d at 370 (stating the plaintiffs' challenge to the city's red light camera ordinance was ripe despite neither plaintiff facing prosecution at the time the challenge was raised).

         "Parties need not subject themselves to a multiplicity of suits or litigation or await the imposition of penalties under an unconstitutional enactment in order to assert their constitutional claim for an injunction .... Once the gun has been cocked and aimed and the finger is on the trigger, it is not necessary to wait until the bullet strikes to invoke the Declaratory Judgment Act." Planned Parenthood, 220 S.W.3d at 739 (quoting ANR Pipeline Co. v. Corp. Comm'n of State of Okla., 860 F.2d 1571, 1578 (10th Cir. 1988)); see also Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (a petitioner need not expose himself to enforcement before challenging a statute). Forcing Alpert to wait until he violates section 571.070 and is prosecuted or threatened with prosecution puts him "in a dilemma that it was the very purpose of the [d]eclaratory [j]udgment [a]ct to ameliorate." Mo. Health Care Ass'n, 953 S.W.2d at 622 (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 1517, 18 L.Ed.2d 681 (1967)). This Court holds Alpert satisfied the requirements to bring a pre-enforcement declaratory judgment action to challenge the constitutional validity of section 571.070.[6]

         Standard of Review

         The constitutional validity of a statute is a question of law this Court reviews de novo. Planned Parenthood, 220 S.W.3d at 737. This Court will presume the statute is valid and will not declare a statute unconstitutional unless it clearly contravenes some constitutional provision. Id. Alpert's petition challenged section 571.070's validity under both the Missouri and United States constitutions.

         Article I, ...

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