State ex rel. Williams v. Marsh

Decision Date12 January 1982
Docket NumberNos. 62765,62762,s. 62765
Citation626 S.W.2d 223
PartiesSTATE ex rel. Denise WILLIAMS, Plaintiff, v. Honorable William J. MARSH, Judge, 16th Judicial Circuit, Defendant. Denise WILLIAMS, Appellant, v. Edward M. WILLIAMS, Respondent.
CourtMissouri Supreme Court

Sherill L. Rosen and Marcia K. Walsh, Legal Aid of Western Mo., Kansas City, for relator; Phyllis Gelman, New York City, of counsel.

John E. Turner, Kansas City, for respondent.

Michael A. Wolff and Jesse A. Goldner, Nina Balsam, John Ashcroft, Atty. Gen., Simon Tonkin, Asst. Atty. Gen., St. Louis, for amicus curiae.


Denise Williams petitions this court for a writ of mandamus to compel the trial court to issue an order of protection, an order restraining her husband from entering her dwelling and a temporary order of custody as authorized by The Adult Abuse Act, §§ 455.010-.085, RSMo Supp.1980. In a separate action she appeals the trial court's dismissal of her petition filed under Chapter 455, RSMo Supp.1980. The appeal was consolidated with the mandamus action because both present the same issues concerning the trial court's determination that Chapter 455, RSMo Supp.1980 violates a number of provisions of the Missouri and United States Constitutions. The preliminary writ is made peremptory; the judgment of dismissal is reversed, and the cause is remanded for further proceedings consistent with the writ herein issued.

After a hearing on plaintiff's petition for an ex parte order of protection, the trial court found: plaintiff, Denise Williams, and respondent, Edward M. Williams were married; one child was born of the marriage; the couple had been living separately for approximately five months prior to the hearing, plaintiff having custody of the child; respondent's home address was unknown although his place of employment was known 1 and his estimated wages were $1,000 per month; during the separation respondent provided no support or maintenance to plaintiff or the child with the exception of a small amount of clothing for the child; plaintiff leased or rented her residence individually; on November 13, 1980, and on numerous previous occasions, respondent (a 230 lbs., former Golden Gloves boxer) "intentionally, knowingly and wilfully beat petitioner ... causing ... serious physical injury ... requiring petitioner to be hospitalized ..." for 12 days. The court concluded: respondent was a former adult household member whose actions constituted abuse; he had "purposely placed petitioner in apprehension of immediate physical injury; and thus plaintiff had "shown an unqualified right to the temporary relief available under §§ 455.035 and 455.045."

The court dismissed the petition because it held the Adult Abuse Act, in general and specifically §§ 455.035, .045 and .085, RSMo Supp.1980 unconstitutional, and thus unenforceable.

The Adult Abuse Act, S.B. 524, (codified at §§ 455.010 to 455.085, RSMo Supp.1980) was adopted by the Missouri Legislature on June 13, 1980, and became effective August 13, 1980. It was adopted by the Missouri Legislature as a result of an increased awareness nationally of the prevalence of domestic violence and of the need to protect the victims of that violence. 2 It is part of a nationwide trend to legislate in this area. 3 Existing remedies such as peace bonds, regular criminal process, and tort law have proved to be less than adequate in aiding the victims of abuse and in preventing further abuse. 4

An adult who is abused by a present or former adult household member, may petition the circuit court for relief under the Act. Two types of relief are available: ex parte orders issued without notice to the respondent or a hearing, and orders issued after notice and an on record hearing. Violation of an ex parte order of protection of which the respondent has notice or of a full order of protection is declared to be a class C misdemeanor for which the respondent may be arrested without a warrant.


Jurisdiction of the mandamus action is in this Court because the validity of a Missouri statute is involved, and this is an original proceeding. Mo.Const. art. V, §§ 3, 4. Respondent husband has not filed a brief in the appeal 5 and has not participated in the mandamus action at any stage. This situation presents whether the parties are seeking an advisory opinion and, in particular, whether said parties have standing. 6 Constitutional questions normally are decided only when necessary to the disposition of the case presented. State ex rel. Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75 (banc 1951).

Standing is related to the doctrine which prohibits advisory opinions because the latter requires the court to dispose of only those issues which affect the rights of the parties present. If a party's interests are unaffected by resolution of an issue he has no standing to raise it. Id. 244 S.W.2d at 79. Thus an opinion resolving an issue which the adversaries have no standing to raise is necessarily advisory.

The trial court held that plaintiff had "an unqualified right to the ... relief available under the Act." This ruling confers upon the plaintiff standing to argue in support of the Act because from it she derives an actual and justiciable interest susceptible of protection. In Interest of D.M.H., 516 S.W.2d 785, 787 (Mo.App.1974). See In re Estate of Van Cleave, 574 S.W.2d 375 (Mo. banc 1978).

The question remains whether the trial court during an ex parte hearing may appropriately rule the Act unconstitutional sua sponte. Circuit Courts have the authority to declare an Act of the Legislature unconstitutional so long as the question has not been determined by this Court. Stemme v. Siedhoff, 427 S.W.2d 461 (Mo.1968). In addition, this determination may be made sua sponte. Judges in this state are duty bound by oath to uphold the United States and Missouri Constitutions. In Ex parte Smith, 135 Mo. 223, 36 S.W. 628 (1896), this Court stated:

(I)f it be true, as must be true, that an unconstitutional law is no law, then its constitutionality is open to attack at any stage of the proceedings and even after conviction and judgment, and this upon the ground that no crime is shown, and therefore the trial court had no jurisdiction because its criminal jurisdiction extends only to such matters as the law declares to be criminal ; and if there is no law making such declaration, or, what is tantamount thereto, if that law is unconstitutional, then the court which tries a party for such an assumed offense, transcends its jurisdiction ....

Id. 36 S.W. at 630; see, Kansas City v. Hammer, 347 S.W.2d 865 (Mo.1961) and cases cited. To the extent that the trial court acting on its own held facially unconstitutional those sections entitling plaintiff to the relief sought, it was making a subject matter jurisdiction determination which the court may make sua sponte at any time. Rule 55.27(g)(3).

The Court's rulings concerning § 455.085 RSMo Supp.1980, were not directly in issue and went beyond the relief which plaintiff requested. These holdings, however, are also jurisdictional in so far as they are related to the facial unconstitutionality of the sections involved, because the entire chapter was held inseverable. Thus, if the sections specifically involved were constitutional, the facial unconstitutionality of § 455.085 RSMo Supp.1980 would void the entire Act. See State ex rel. Board of Mediation v. Pigg, 244 S.W.2d at 79.

The absence of respondent husband in this case has not infringed upon the policies underlying the standing requirement. The briefs of plaintiff, defendant judge, and many amicus curiae 7 have adequately presented the controversy to the Court; and the case has not been created by parties not directly affected. See Ryder v. County of St. Charles, 552 S.W.2d 705, 707 (Mo. banc 1977). The Act is new and the state judiciary needs guidance because "(w)hether they do or do not enforce the statute they may be subject to a multiplicity of suits", and where public concern and interest in judicial economy are involved, this Court "may decide constitutional questions even ex mero motu." State ex rel. McMonigle v. Spears, 358 Mo. 23, 6-27, 213 S.W.2d 210, 212 (banc 1948).


This Act is presumptively constitutional:

It is a cardinal rule of statutory construction that where a statute is fairly susceptible of a construction in harmony with the Constitution, it must be given that construction by the courts and, unless that statute is clearly repugnant to the organic law, its constitutionality must be upheld.

Chamberlin v. Missouri Elections Commission, 540 S.W.2d 876, 879 (Mo. banc 1976). The United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), responding to a constitutional challenge to the Georgia death penalty statutes, stated that:

this language need not be construed in this way (in an unconstitutionally broad manner), and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.

Id. at 201, 96 S.Ct. at 2938.

The legislature is deemed to be aware of the inhibitions imposed by the constitution and therefore if statutory language is susceptible to two constructions, one constitutional and the other unconstitutional, it should be construed in a manner consistent with the provisions of the constitution.

Americans United v. Rogers, 538 S.W.2d 711, 723 (Mo. banc 1976) (Bardgett, J., concurring) cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976). Indeed, this Court's construction of the Act becomes part of the statutory scheme as if it had been so amended by the Legislature. See State v. Crawford, 478 S.W.2d 314 (Mo.1972); cf. City of St. Joseph v. Hankinson, 312 S.W.2d 4 (Mo.1958).


The trial court ruled that the Act violates Mo.Const. art. III, § 23, which provides that "(n)o bill shall contain more than one subject which shall be clearly expressed in its title ..." because...

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