State ex rel. Nixon v. McClure

• Decision Date: 26 May 1998
• Docket Number: No. WD,WD
• Citation: 969 S.W.2d 801
• Parties: STATE of Missouri, ex rel., Jeremiah W. NIXON, Respondent, v. Wayne McCLURE, Appellant. 54529.
• Court: Missouri Court of Appeals

Page 801

969 S.W.2d 801

STATE of Missouri, ex rel., Jeremiah W. NIXON, Respondent, v. Wayne McCLURE, Appellant.

No. WD 54529.

Missouri Court of Appeals Western District.

May 26, 1998.

Wayne McClure, Jefferson City, pro se.

Jeremiah W. (Jay) Nixon, Atty. Gen., Gail Vasterling, Kimberly A. Harper, Asst. Attys. Gen., Jefferson City, for respondent.

Before EDWIN H. SMITH, P.J., and SMART and ELLIS, JJ.

ELLIS, Judge.

Wayne McClure was convicted of first degree assault and armed criminal action in the Circuit Court of Cole County. On June 24, 1994, he was sentenced to concurrent terms of twenty-five years in the Missouri Department of Corrections (MDOC). On June 29, 1994, he was placed in the custody of MDOC.

As a result of his previous service as a federal government employee, McClure had put money into the Civil Service Retirement and Disability Fund and a federal Thrift Savings Plan. Prior to his conviction, McClure received lump-sum payments of $28,077.15 and $1658.11 from these programs which were deposited in a checking account at the Arsenal Credit Union on March 3, 1994.

On February 5, 1996, McClure had $300 transferred from his checking account at the Arsenal Credit Union to his inmate account at the Missouri Eastern Correctional Center. The State took note of this transaction and discovered McClure's account at the Arsenal Credit Union which still contained over $24,600. On April 12, 1996, the State filed a petition for inmate reimbursement under the Missouri Incarceration Reimbursement Act ("MIRA"), § 217.825 et seq. ¹ The State's petition also requested that all of McClure's assets be frozen and a receiver appointed to protect and maintain them until the State's petition for reimbursement was ruled on. That same day, the Circuit Court of Cole County issued an Order giving McClure until May 20, 1996, to show cause why a judgment should not be entered appropriating and applying his assets to reimburse the state for the costs of his confinement in the state's correctional facility. The court also appointed Rodney Kueffer, inmate treasurer for the State of Missouri, as receiver for any and all funds held on behalf of McClure and ordered that those funds not be disbursed except upon court order. The court allowed McClure access to $7.50 per month from his inmate account.

On May 14, 1996, McClure filed a pro se motion entitled, "Defendant's Motion to Show Cause." ² On October 11, 1996, the State filed a Motion for Summary Judgment and suggestions in support of that motion. On November 14, 1996, McClure filed a motion entitled, "Defendant's Motion for Preliminary Injunction," requesting that his assets be freed and claiming that the money in his checking account was comprised of his Civil Service retirement benefits which were exempt from reimbursement. In his suggestions in support of his motion, McClure claimed that under federal law his retirement benefits were exempt from levy, attachment, and garnishment. On December 16, 1996, the State filed a "Reply to Defendant's Response to Plaintiff's Motion for Summary Judgment." ³ In that reply, the State argued that McClure's civil service benefits were not protected by 5 U.S.C. § 8346 because that protection ceased once the funds were placed in the possession of a beneficiary. On January 16, 1997, McClure filed a "Reply to Plaintiff's Response to Motion for Summary Judgment," in which he argued that the language of 5 U.S.C. § 8346 continues to protect his benefits.

On February 11, 1997, the circuit court entered an amended judgment ordering McClure to reimburse the state $22,622.99 for the cost of his care and custody. ⁴

On appeal, once again proceeding pro se, McClure claims that the trial court erred in awarding the State funds from his federal retirement benefits because such an award was contrary to 5 U.S.C. § 8346(a) and the Supremacy Clause of the United States Constitution requires that statute's application take precedence over the provisions of MIRA.

The State initially claims that McClure has failed to preserve his claim for review because he did not mention the Supremacy Clause or claim that the federal statute "preempted" MIRA in any of his pleadings before the trial court. "To preserve a constitutional question for review, a matter must be raised at the first opportunity, the sections of the constitution alleged to have been violated must be specifically asserted, the matter must be preserved in the motion for new trial, and the questions must be adequately covered in the briefs." State v. Pullen, 843 S.W.2d 360, 364 (Mo. banc 1992). "The purposes of the rule requiring that constitutional issues be raised at the earliest opportunity are to prevent surprise to the opposing party, and to permit the trial court an opportunity to fairly identify and rule on the issue." Land Clearance for Redevelopment Auth. v. Kansas Univ. Endowment Ass'n, 805 S.W.2d 173, 175 (Mo. banc 1991).

While McClure may not have mentioned the words, "Supremacy Clause" or "preempt," all of McClure's pro se pleadings filed in response to the State's motion for summary judgment and his motion to reconsider assert that the federal law relating to his civil service pension protects his money from execution, levy, attachment, garnishment or other legal process, and bars the state's attempt to acquire the funds in his bank account under MIRA. McClure's Supremacy Clause challenge is readily apparent. The State's summary judgment reply dealt extensively with the applicability of the federal statute and cites to multiple cases addressing similar challenges. McClure's claim on appeal is no different from the claim he made in his motions before the trial court.

Furthermore, the trial "court under the supremacy clause is obliged to apply federal law, and may not apply state law, substantive or procedural, which is in derogation of federal law." Bunge Corp. v. Perryville Feed & Produce, 685 S.W.2d 837, 839 (Mo. banc 1985). McClure directed the trial court's attention to a federal statute which he claimed was controlling over MIRA. The trial court was, therefore, made aware of the federal statute and was obligated to apply it if it was applicable. "[B]ecause the purpose of the rule requiring that constitutional issues be raised at the earliest opportunity, to prevent surprise to the opposing party and permit the trial court an opportunity to fairly identify and rule on the issue, was served here, [the State]'s jurisdictional challenge is denied." Winston v. Reorganized Sch. Dist. R-2, 636 S.W.2d 324, 327 (Mo. banc 1982). ⁵

The State filed its claim under the MIRA which states that if a prisoner has sufficient assets to recover not less than ten percent of the estimated cost of care for the prisoner for two years, the attorney general may seek to secure reimbursement for the expenses incurred by the state of Missouri for the care of the prisoner. § 217.831.3. Not more than ninety percent of the value of the assets of a prisoner may be used for purposes of securing costs and reimbursement under MIRA. § 217.833.1. MIRA defines "assets" as "property, tangible or intangible, belonging to or due an offender or a former offender, including income or payments to such offender from social security, workers' compensation, veterans' compensation, pension benefits, previously earned salary or wages, bonuses, annuities, retirement benefits, or from any other source whatsoever ..." § 217.827.1(a). Under these provisions, the funds in McClure's bank account would appear to be subject to reimbursement under MIRA.

However, McClure claims that the funds taken by the State were protected from MIRA by 5 U.S.C. § 8346(a). That subsection provides that "[t]he money mentioned by this subchapter is not assignable, either in law or equity, except under the provisions of subsections (h) and (j) of section 8345 of this title, ⁶ or subject to execution, levy, attachment, garnishment, or other legal process, except as otherwise may be provided by Federal laws." 5 U.S.C.A. § 8346(a). ⁷

Article VI of the United States Constitution provides that the laws of the United States government "shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art VI, § 2. "[U]nder the supremacy clause, Missouri courts are obliged to apply federal law and may not apply substantive or procedural state law which is in derogation of federal law." Reis v. Peabody Coal Co., 935 S.W.2d 625, 630 (Mo.App. E.D.1996) (citing Bunge Corp. v. Perryville Feed & Produce, Inc., 685 S.W.2d 837, 839 (Mo. banc 1985)). The issue, then, is whether the trial court improperly awarded the State funds in violation of federal law.

In 1988, the United States Supreme Court held that a similar inmate reimbursement act in Arkansas was in conflict with the anti-attachment provisions of the Social Security Act insofar as the Arkansas statute specifically allowed the State to seize Social Security payments that had been made to inmates and was, therefore, in violation of the Supremacy Clause. Bennett v. Arkansas, 485 U.S. 395, 108 S.Ct. 1204, 99 L.Ed.2d 455 (1988). The anti-attachment language at issue in Bennett provided that "none of the moneys paid or payable ... under [the Social Security Act] shall be subject to execution, levy, attachment garnishment, or other legal process." Bennett, 485 U.S. at 396, 108 S.Ct. at 1205. (citing 42 U.S.C. § 407(a)). The Court held:

[T]here is a clear inconsistency between the Arkansas statute and 42 U.S.C. § 407(a) (1982 ed., Supp. III). Section 407(a) unambiguously rules out any attempt to attach Social Security benefits. The Arkansas Statute just as unambiguously allows the State to attach those benefits. As we see it, this amounts to a "conflict" under the Supremacy Clause--a conflict that the State cannot win. See Rose v. Arkansas State Police, 479 U.S. 1, 107 S.Ct. 334, 93 L.Ed.2d 183 (1986). We reject the State's attempt to...