Fowler v. Mo. Sheriffs' Ret. Sys.

• Decision Date: 01 June 2021
• Docket Number: No. SC 98484,SC 98484
• Parties: Daven FOWLER, et al., Appellants/Cross-Respondents, v. MISSOURI SHERIFFS’ RETIREMENT SYSTEM, Respondent/Cross-Appellant.
• Court: Missouri Supreme Court

623 S.W.3d 578

Daven FOWLER, et al., Appellants/Cross-Respondents,

v.MISSOURI SHERIFFS’ RETIREMENT SYSTEM, Respondent/Cross-Appellant.

No. SC 98484

Supreme Court of Missouri, en banc.

Opinion issued June 1, 2021

MADDEN, BRIAN JOSEPH, BARTON, ERIC DAVID, DAVIS, ADAM S., TOOMEY, JOAN DUNGEY, WAGSTAFF & CARTMELL LLP, MCGONAGLE, GERALD F., GAHAGAN, CHRISTOPHER SCOTT, KANSAS CITY, MO, for Appellants/Cross-Respondents.

SEAR, TIMOTHY JOSEPH, ZEECK, PHILLIP JAMES RICHARD, KANSAS CITY, MO, GRAY, RODNEY D., JEFFERSON CITY, MO, for Respondent/Cross-Appellant.

Zel M. Fischer, Judge

Daven Fowler and Jerry Keller appeal the circuit court's dismissal of their lawsuit against the Missouri Sheriffs’ Retirement System ("MSRS"). MSRS cross-appeals. Because the municipal court clerks are not necessary and indispensable parties, and the statute authorizing the $3 surcharge, § 57.955,¹ violates article I, § 14 of the Missouri Constitution, the circuit court's judgment is vacated and remanded.

Factual Background and Procedural History

The General Assembly enacted § 57.955 in 1983. At enactment, the statute provided in pertinent part:

After the effective date of the establishment of the system, in addition to all other legal costs in each civil suit, action, case and all other proceedings of a civil nature filed in each circuit court and the divisions^{[2 ]} thereof, except the juvenile divisions, in a county there shall be assessed and collected in the same manner as other civil court costs are collected a sum of three dollars and in all criminal cases a sum of two dollars, but no such costs shall be assessed when the costs are to be paid by the state for indigent defendants. The clerk, or other official responsible for collecting court costs in civil and criminal cases, shall collect such amounts and shall remit them monthly to the board for deposit in the sheriffs’ retirement fund.

§ 57.955.1, RSMo Supp. 1983. From its enactment until 1997, the statute did not require municipal courts to collect either the $3 or the $2 surcharge.³

In 1997, the General Assembly amended the statute to its current version, which provides:

There shall be assessed and collected a surcharge of three dollars in all civil actions filed in the courts of this state and in all criminal cases including violation of any county ordinance or any violation of criminal or traffic laws of this state, including infractions, but no such surcharge shall be assessed when the costs are waived or are to be paid by the state, county or municipality or when a criminal proceeding or the defendant has been dismissed by the court. For purposes of this section, the term "county ordinance " shall not include any ordinance of the city of St. Louis. The clerk responsible for collecting court costs in civil and criminal cases, shall collect and disburse such amounts as provided by sections 488.010 to 488.020. Such funds shall be payable to the sheriffs’ retirement fund. Moneys credited to the sheriffs’ retirement fund shall be used only for the purposes provided for in sections 57.949 to 57.997 and for no other purpose.

§ 57.955.1 (emphasis in statute). The municipal court clerks ("the clerks") assess and collect the surcharge and then remit collected surcharges to the Missouri Sheriffs’ Retirement Fund ("the Fund"). The Fund pays its benefits to retired elected county sheriffs and their spouses, but only if the elected sheriff served in that capacity for at least eight years.

In May 2017, Daven Fowler and Jerry Keller received speeding tickets in Kansas City. Both men hired the same attorney and resolved their cases by pleading guilty and paying court costs totaling $223.50 to the Kansas City municipal court. Three dollars of the total costs was the surcharge authorized by § 57.955. Neither Fowler nor Keller knew they were paying the $3 surcharge. After discussions with their attorney, Fowler and Keller believed the surcharge was unconstitutional, and both men agreed to become class representatives for all Kansas City municipal court litigants who had paid the surcharge.

Fowler and Keller, on behalf of a putative class, sued MSRS in the Jackson County circuit court. As germane to this case, the petition alleged one count of unjust enrichment and asserted the surcharge violated article I, § 14 of the Missouri Constitution. The case proceeded to a bench trial. After the close of all the evidence, the circuit court dismissed this case,⁴ concluding Fowler and Keller had failed to join the clerks responsible for assessing, collecting, and remitting the surcharge as necessary and indispensable parties. Despite this conclusion, the circuit court addressed the constitutional challenge and concluded § 57.955 did not violate article I, § 14 of the Missouri Constitution.

Fowler and Keller appealed, and MSRS cross-appealed. This Court has exclusive appellate jurisdiction over the appeal because Fowler and Keller challenge the constitutional validity of § 57.955. Mo. Const. art. V, § 3 ; Mo. State Conf. of NAACP v. State , 601 S.W.3d 241, 244 (Mo. banc 2020).

Analysis

I.MSRS’ Threshold Arguments

MSRS raises several arguments, which, if accepted, would prevent this Court from reaching the merits. Namely, MSRS argues: (1) Fowler and Keller do not have standing; (2) Fowler and Keller waived their constitutional claim by failing to raise it with the municipal court; (3) the "voluntary payment doctrine" bars Fowler and Keller's unjust enrichment claim; and (4) Fowler and Keller's unjust enrichment claim fails as a matter of law because MSRS’ reception of funds was nothing more than "passive acquiescence." All of these arguments fail.

A.Fowler and Keller Have Standing

MSRS argues Fowler and Keller do not have standing because their attorney originally paid the court costs (including the surcharge) on their behalf. "This Court reviews the issue of standing de novo. " Mo. Coal. for Env't v. State , 579 S.W.3d 924, 926 (Mo. banc 2019). "Standing ... requires a petitioner to demonstrate a personal stake in the outcome of the litigation, meaning a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief." Id. (internal quotation marks omitted).

It was established that Fowler and Keller's attorney originally paid their respective court costs to the municipal court. However, both Fowler and Keller testified they reimbursed their attorney for the court costs.⁵ It is of no consequence that the attorney originally paid the court costs. Fowler and Keller reimbursed their attorney and, therefore, have a pecuniary interest. Their petition seeks a refund or reimbursement of the surcharge. Fowler and Keller have standing.

B.Fowler and Keller Did Not Waive Their Constitutional Claim

MSRS argues Fowler and Keller waived their constitutional claim because they failed to raise the same with the municipal court. Fowler and Keller do not dispute they failed to present their constitutional challenge to the municipal court, but disagree they waived the claim. Because the parties do not dispute the facts related to the issue of waiver, it is a question of law this Court reviews de novo. Hay v. Bankers’ Life Co. , 231 S.W. 1035, 1037 (Mo. App. 1921) ("[W]aiver is generally a question of fact ... yet where the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law."); see also Malam v. State, Dep't of Corr. , 492 S.W.3d 926, 928 (Mo. banc 2016) ("Questions of law are reviewed de novo. ").

Generally, to properly raise and preserve a constitutional challenge, a party must:

(1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.

United C.O.D. v. State , 150 S.W.3d 311, 313 (Mo. banc 2004). However, this Court has recognized an exception to the general rule as it pertains to municipal courts, that is, "failure to raise constitutional questions in municipal court is not considered a waiver of the same." State ex rel. Kansas City v. Meyers , 513 S.W.2d 414, 418 (Mo. banc 1974) ; City of Ferguson v. Nelson , 438 S.W.2d 249, 252 (Mo. 1969). Because Fowler and Keller were not required to present their constitutional challenge to the municipal court, and because they have otherwise sufficiently raised and preserved the issue, they did not waive their claim that § 57.955 violates article I, § 14 of the Missouri Constitution.

C.MSRS’ Remaining Arguments Not Preserved

MSRS’ remaining point relied on provides: "THE CIRCUIT COURT ERRED IN REJECTING [MSRS’] VOLUNTARY PAYMENT AND PASSIVE ACQUIESCENCE DEFENSES. " This point relied on fails to comply with Rule 84.04(d) in that it fails to concisely state the legal reasons for MSRS’ claims of error and fails to explain how those legal reasons, in the context of the case at hand, support MSRS’ stated claims of error. Rule 84.04(d)(1)(B)-(C). Furthermore, the point relied on is multifarious in violation of Rule 84.04 because it groups together multiple, independent claims. Macke v. Patton , 591 S.W.3d 865, 869 (Mo. banc 2019). Because Rule 84.04's requirements are mandatory, MSRS’ noncompliant point relied on fails to preserve either argument for this Court's review. Id. ; see also Storey v. State , 175 S.W.3d 116, 126 (Mo. banc 2005).

II.Municipal Court Clerks Are Not Necessary Parties

Turning to the merits of Fowler and Keller's appeal, they first argue the circuit court erred in dismissing their petition for failing to include the clerks as necessary and indispensable parties. "This Court applies de novo review to a judgment dismissing a petition." Rolwing v. Nestle Holdings, Inc. , 437 S.W.3d 180, 182 (Mo. banc 2014).

Rule 52.04 governs whether a person is a necessary and...