Alpert v. State, SC 96024

Decision Date03 April 2018
Docket NumberNo. SC 96024,SC 96024
Parties Jack ALPERT, Appellant, v. STATE of Missouri, et al., Respondents.
CourtMissouri Supreme Court

Alpert was represented by Ron Ribaudo of The Ribaudo Law Firm in Ballwin, (636) 485-8252.

The state was represented by Gregory M. Goodwin of the attorney general’s office in Jefferson City, (573) 751-3321.

George W. Draper III, Judge

Jack Alpert (hereinafter, "Alpert") filed a declaratory judgment action against the state of Missouri, the attorney general, and the prosecuting attorney for Johnson County, Missouri (hereinafter and collectively, "the state"), seeking a declaration the state could 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 States Constitution. This Court holds Alpert’s pre-enforcement constitutional challenges are ripe 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

Ripeness

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...

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