Missouri Health Care Ass'n v. Attorney General of the State of Mo., 79479

Decision Date30 September 1997
Docket NumberNo. 79479,79479
Citation953 S.W.2d 617
CourtMissouri Supreme Court

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen King Mitchell, Mark E. Long, Ronald Molteni, Asst. Attys. Gen., Jefferson City, for Appellant.

Harvey M. Tettlebaum, Lowell D. Pearson, Jefferson City, for Respondent.


In 1995, the Missouri General Assembly adopted Conference Committee Substitute for House Bill 409 (CCSHB 409), Laws of 1995, p. 1312, et. seq., which amends sections 660.050, 660.546, and 470.020 1. Missouri Health Care Association (MHCA), a not-for-profit organization that represents a majority of the long-term care facilities in the state, brought a declaratory judgment to have CCSHB 409 declared unconstitutional. MHCA alleged that it had standing to challenge CCSHB 409 because the amendments to section 407.020 injured MHCA's members. MHCA asserted that CCSHB 409 violates the Missouri Constitution on the following grounds: the subject of the bill is not clearly expressed in its title, in violation of article III, sec. 23; the bill contains more than one subject, in violation of article III, sec. 23; and CCSHB 409 was amended so as to change its original purpose, in violation of article III, sec. 21. MHCA also asserted that CCSHB 409 violates the equal protection clause of the Missouri Constitution and the United States Constitution. The trial court sustained MHCA's motion for summary judgment finding that CCSHB 409 violates sections 21 and 23 of article III of the Missouri Constitution as alleged by MHCA. The attorney general appeals. The judgment is affirmed.


On January 25, 1995, House Bill 409, the predecessor of CCSHB 409, was introduced and first read. As originally introduced and passed in the house of representatives, House Bill 409 amended section 660.050, which creates the division of aging within the department of social services and defines the division's duties, powers, and structures. House Bill 409 amended section 660.050 by requiring the division of aging to publicize the "Missouri care options program," a program intended to inform individuals of the variety of long-term care options available. The words in the original title of House Bill 409 significant to this appeal were "the division of aging."

When the senate took up House Bill 409, it added an amendment to section 660.546. That section requires the department of social services to coordinate the "Missouri Partnership for Long-term Care" in order to combine private insurance and medicaid funds to finance long-term care. The amendment to section 660.546 expands the definition of "estate" for purposes of recovering any medical assistance paid under this program.

The senate added another provision to House Bill 409. The provision, which originated in House Bill 739, amends section 407.020. Section 407.020 is contained within the "Merchandising Practices" chapter of the Missouri revised statutes. Generally, section 407.020 defines as unlawful any unfair or deceitful practice in connection with the sale or advertising of merchandise. Section 407.020 further provides that any knowing and willful use of an unlawful trade practice with the intent to defraud is a class D felony, which can be prosecuted by local prosecuting attorneys or the attorney general.

The senate's amendments to section 407.020 add two subsections, but otherwise reenact the section unchanged. The first subsection, 407.020.5, makes it an unlawful trade practice for certain long-term care facilities that make representations regarding their quality of care to refuse to provide copies of documents that reflect the facilities' evaluation of the care they provide. The second subsection, 407.020.6, provides that any long-term care facility that commits such an unlawful practice shall be liable in a civil action for damages of up to $1,000, costs, and attorney's fees. The significant words of House Bill 739's title were "merchandising practices."

The senate's amended version of House Bill 409 was referred to a conference committee. Both houses of the general assembly then passed the final version of the bill. On August 28, 1995, CCSHB 409 became law. As passed by the general assembly and approved by the governor, CCSHB 409 amends sections 407.020, 660.050, and 660.546 as described above. The title of CCSHB 409 is "AN ACT To repeal sections 407.020, 660.050, and 660.546, RSMo 1994, relating to the department of social services, and to enact in lieu thereof three new sections relating to the same subject."

MHCA brought a declaratory judgment to challenge the constitutionality of CCSHB 409, naming the Attorney General of the State of Missouri as the sole defendant. MHCA alleged that although the amendments to section 407.020 contained in CCSHB 409 had yet to be enforced, MHCA's members were suffering injury. Specifically, MHCA alleged that its members were restrained from making representations in the course of their business for fear of triggering the disclosure requirements of subsection 407.020.5. MHCA also contended that its members were uncertain about what disclosure was required by subsection 407.020.5 and that they operated under the threat of the enforcement provisions contained in amended section 407.020. The trial court granted summary judgment in favor of MHCA.


A threshold issue is whether MHCA has standing. MHCA has invoked representational standing. An organization can sue as a representative for its members if (1) its members would otherwise have standing to bring suit in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members. Missouri Outdoor Advertising Ass'n. v. Missouri State Highways and Transp. Comm'n., 826 S.W.2d 342, 344 (Mo. banc 1992). Only the first of the three requirements is at issue in the present case.

Whether MHCA's members would have standing to bring this suit in their own right depends upon whether they are able to satisfy the requirements for bringing a declaratory judgment action. A declaratory judgment action requires a justiciable controversy. Akin v. Director of Revenue, 934 S.W.2d 295, 298 (Mo. banc 1996). A justiciable controversy exists where the plaintiff has a legally protectable interest at stake, a substantial controversy exists between parties with genuinely adverse interests, and that controversy is ripe for judicial determination. State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 129, 221 S.W.2d 172, 176 (banc 1949). If a justiciable controversy exists between the members of MHCA and the attorney general, then MHCA has standing to bring this action as a representative of its members.

The attorney general makes several arguments that MHCA's petition fails to establish a justiciable controversy between MHCA's members and the attorney general. First, the attorney general argues that MHCA's members have no legally protectable interest at issue. This contention is without merit. The interest in doing business free from the constraints of an unconstitutional law is entitled to legal protection. See Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. banc 1982), appeal dismissed, 459 U.S. 1094, 103 S.Ct. 711, 74 L.Ed.2d 942 (1983); Borden Co. v. Thomason, 353 S.W.2d 735, 741 (Mo. banc 1962). MHCA has alleged that amended section 407.020 is unconstitutional and that it is affecting its members' businesses; therefore, MHCA's petition places a legally protectable interest at issue.

Next, the attorney general argues that he is not the proper defendant in this declaratory judgment action. The declaratory judgment act provides, "When 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." Sec. 527.110. The state official empowered to enforce a law that is challenged through a declaratory judgment action has an interest that would be affected by a court's declaration. See School Dist. v. Smith, 342 Mo. 21, 25, 111 S.W.2d 167, 168 (1937). Furthermore, if the declaratory judgment action challenges the constitutionality of a statute, the declaratory judgment act provides that "the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard." Sec. 527.110.

The attorney general is empowered to enforce amended section 407.020. Sec. 407.020.4, RSMo Supp.1996. MHCA is challenging the constitutionality of this section by a declaratory judgment action. If MHCA meets the other requirements for standing in this declaratory judgment action, then the attorney general is a proper party to defend it. School Dist., 342 Mo. at 25, 111 S.W.2d at 168. MHCA's petition establishes the requisite controversy between its members and the attorney general.

Finally, the attorney general argues that MHCA's petition fails to present a controversy that is ripe for judicial determination. The attorney general argues that no ripe controversy exists because neither an attempt nor a threat to enforce the amended portions of section 407.020 has been made. The attorney general is mistaken.

A court cannot render a declaratory judgment unless the petition presents a controversy ripe for judicial determination. See Akin, 934 S.W.2d at 298. A ripe controversy is a controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. See State ex rel. City of Crestwood v. Lohman, 895 S.W.2d 22, 30 (Mo.App.1994). 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...

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