State ex rel. Collector of Winchester v. Jamison

• Decision Date: 17 January 2012
• Docket Number: No. SC 91631.,SC 91631.
• Citation: 357 S.W.3d 589
• Parties: STATE ex rel. COLLECTOR OF WINCHESTER, Missouri and City of Winchester, Missouri, Relators, v. The Honorable Michael T. JAMISON, Respondent.
• Court: Missouri Supreme Court

357 S.W.3d 589

STATE ex rel. COLLECTOR OF WINCHESTER, Missouri and City of Winchester, Missouri, Relators,

v.The Honorable Michael T. JAMISON, Respondent.

No. SC 91631.

Supreme Court of Missouri, En Banc.

Jan. 17, 2012.

John W. Hoffman and Douglas R. Sprong of Korein Tillery LLC in St. Louis, John F. Mulligan Jr., Clayton and Howard Paperner, St. Louis, for The City.

Cynthia L. Hoemann, Associate County Counselor in Clayton and James H. White, Special Assistant County Counselor, St. Louis, for St. Louis County.

Robert P. Berry, Jessica W. Kennedy and David C. Baxter, Berry & Maxson LLC, St. Louis, Eric S. Tresh, Sutherland, Asbill & Brennan LLP, Atlanta, for Charter Communications.The Attorney General's Office, Jefferson City, for The state.LAURA DENVIR STITH, Judge.

The city of Winchester and its collector (“Winchester”) petition this Court to issue a writ of mandamus or prohibition compelling the circuit court to vacate its order striking and dismissing Winchester's class action claims in its suit against Charter Communications.¹ The court struck Winchester's class claims on the basis of section 71.675, RSMo Supp.2009, ² which bars cities and towns from serving as class representatives in suits to enforce or collect business license taxes imposed on telecommunications companies.

In seeking a writ, Winchester argues that because it otherwise meets the requirements for serving as a class representative in suits against telecommunications companies under Rule 52.08, by enacting section 71.675, the legislature has changed the requirements for serving as a class representative as set out in that rule. Missouri's constitution permits the legislature to amend a procedural rule of this Court, such as Rule 52.08, which governs class actions, only “by a law limited to the purpose” of so doing. Mo. Const. art. V, § 5. Section 71.675 was not limited to amending Rule 52.08 and did not mention it by name. Where, as here, a statute and the constitution conflict, this Court has no choice but to strike down the statute. Farmer v. Kinder, 89 S.W.3d 447, 452 (Mo. banc 2002). For this reason, the court exceeded its authority in striking Winchester's class action allegations pursuant to section 71.675.³ The preliminary writ of prohibition is quashed, and a permanent writ of mandamus is issued directing the trial court to vacate its order striking Winchester's class action allegations.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2010, Winchester filed a class action lawsuit against Charter on behalf of itself and other similarly situated Missouri municipal corporations and political subdivisions.⁴ Winchester seeks a declaratory judgment requiring Charter and other telephone service providers to comply with validly enacted municipal ordinances that require them to pay a license tax on gross receipts derived from various fees and services connected to their operations ⁵ and an order requiring Charter to pay all license taxes owed to the class.

In October 2010, Charter moved to strike Winchester's class action claims pursuant to section 71.675, which states in relevant part:

Notwithstanding any other provision of law to the contrary, no city or town shall bring any action in federal or state court in this state as a representative member of a class to enforce or collect any business license tax imposed on a telecommunications company. A city or town may, individually or as a single plaintiff in a multiple-plaintiff lawsuit, bring an action in federal or state court in this state to enforce or collect any business license tax imposed on a telecommunications company.

§ 71.675.1.

In February 2011, the trial court granted Charter's motion to strike based on its belief that section 71.675 concerns the substantive issue of standing rather than the procedural issue of satisfying the requirements for serving as a class representative. In May 2011, this Court granted Winchester's petition for a preliminary writ of prohibition. That writ is now quashed, and a permanent writ of mandamus is ordered to issue.

II. STANDARD OF REVIEW

This Court has the authority to “issue and determine original remedial writs.” Mo. Const. art. V, § 4.1 . “The standard of review for writs of mandamus and prohibition ... is abuse of discretion.” State ex rel. City of Jennings v. Riley, 236 S.W.3d 630, 631 (Mo. banc 2007). Mandamus will lie where a court “has acted unlawfully or wholly outside its jurisdiction or authority or has exceeded its jurisdiction, and also where it has abused whatever discretion may have been vested in it.” State ex rel. Office of Pub. Counsel v. Pub. Serv. Comm'n, 236 S.W.3d 632, 635 (Mo. banc 2007) (quotation omitted). “Mandamus does not issue except in cases where the ministerial duty sought to be coerced is definite, arising under conditions admitted or proved and imposed by law.” Furlong Cos., Inc. v. City of Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006). “A litigant ... must allege and prove that he has a clear, unequivocal specific right to a thing claimed. He must show himself possessed of a clear and legal right to the remedy.” Id.

III. THE TRIAL COURT EXCEEDED ITS AUTHORITY WHEN IT STRUCK WINCHESTER'S CLASS ACTION CLAIMSA. Requirements of Missouri's Constitution for Amending Procedural Rules

Rule 52.08 is a rule promulgated by this Court pursuant to article V, section 5 of the Missouri Constitution, which states in pertinent part:

The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law.

Mo. Const. art. V, § 5. To effectuate the authority Missouri's constitution vests in this Court, the Court has promulgated Rules of Civil Procedure 41 to 101. As Rule 41.02 notes, these rules, promulgated pursuant to article V, section 5 of the constitution, “supersede all statutes and existing court rules inconsistent therewith.” Rule 41.02.

The very constitutional provision giving this Court the authority to establish procedural rules that have the force and effect of law also provides the legislature with a specific mechanism for modifying those rules by providing that “[a]ny rule may be annulled or amended in whole or in part by a law limited to the purpose.” Mo. Const. art. V, § 5. Although the legislature thereby is given the authority to annul or amend procedural rules created by the Court, “[t]he constitutional prescription of the manner in which the General Assembly must act is of pristine importance.” State ex rel. K.C. v. Gant, 661 S.W.2d 483, 485 (Mo. banc 1983). The constitution, therefore, in no way “limit[s] or constrict[s] the power of the General Assembly. Its power is plenary, so long as it follows the constitutional procedure.” Id. “A law, to qualify as one ‘limited to the purpose’ of amending or annulling a rule, must refer expressly to the rule” and be limited to the purpose of amending or annulling it. Id.

The General Assembly is well aware of how to comply with the requirement of article V, section 5 when exercising its constitutional authority to annul or amend procedural rules. In 1984, for example, the legislature enacted a law “to amend supreme court rule 54.22 ... relating to process, return or proof of service.” Act of June 7, 1984, enacting H.B. 947, 82d Gen. Assem., 2d Reg. Sess. (Mo.1984); 1984 Mo. Laws 792. The law specifically referred to the rule it was amending and was limited to that purpose, containing nothing more than a statement that Rule 54.22 was being amended and the language of the new rule.

In other instances, a law purporting to annul or amend a procedural rule of this Court has not been enacted in compliance with the requirements of article V, section 5, forcing this Court to strike down the statute. For example, in Gant, 661 S.W.2d at 485, at issue was Rule 127.05, which then entitled a minor or the minor's guardian to a hearing if certain requirements were met. The legislature enacted a bill purporting to give the juvenile court discretion whether to hold the hearing. Act of June 17, 1980, enacting S.B. 512, 80th Gen. Assem., 2d Reg. Sess. (Mo.1980); 1980 Mo. Laws 331–37. But, that law failed to comply with article V, section 5 because it was not contained in a bill limited to that purpose, nor did the bill expressly refer to the rule at all. Id. (making no mention of the pertinent rule and also addressing other issues related to the juvenile court system).

Similarly, in State v. Reese, 920 S.W.2d 94 (Mo. banc 1996), this Court held that a rule governing the procedures for substitution of a deceased party prevailed over a conflicting statute concerning the same issue because “[t]he General Assembly [had] not passed a law limited to the purpose of annulling or amending” the rule at issue. Id. at 95–96. Instead, the conflicting statutory provision had been part of a massive piece of legislation revising numerous previous statutes related to trusts and estates. Act of July 14, 1983, enacting S.B. 44 and 45, 82d Gen. Assem., 1st Reg. Sess. (Mo.1983); 1983 Mo. Laws 804–906. Further, the law once again made no mention of the conflicting rule. Id.

B. Rule 71.675 Fails to Comply with Missouri Constitutional Requirements for Amending Procedural Rules

It is these principles that govern this Court's resolution of the question of whether section 71.675's purported limitation on the right of cities and towns to sue telecommunications companies is constitutionally valid. Winchester argues that it is not because it silently amends Rule 52.08. That rule, which is denominated “Class Actions,” specifically delineates the requirements and qualifications for filing class action lawsuits:

One or more members of a class may sue or be sued as parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the...