Turner v. Mo. Dep't of Conservation

• Decision Date: 02 September 2011
• Docket Number: No. SD 30817.,SD 30817.
• Citation: 349 S.W.3d 434
• Court: Missouri Court of Appeals
• Parties: Neil TURNER and Bobby “Shannon” Jones, Plaintiffs–Respondents,v.MISSOURI DEPARTMENT OF CONSERVATION, Defendant–Appellant.

349 S.W.3d 434

Neil TURNER and Bobby “Shannon” Jones, Plaintiffs–Respondents,

v.MISSOURI DEPARTMENT OF CONSERVATION, Defendant–Appellant.

No. SD 30817.

Missouri Court of Appeals, Southern District, Division one.

Aug. 12, 2011.Rehearing Denied Sept. 2, 2011.Application for Transfer Denied

Oct. 25, 2011.

Tracy E. McGinnis and Heidi Doerhoff Vollet, Jefferson City, MO, for Appellant.Devin S. Kirby, Doniphan, MO, for Respondent Bobby “Shannon” Jones.Daniel T. Moore, Poplar Bluff, MO, for Respondent Neil Turner.DON E. BURRELL, Judge.

In response to a petition for declaratory judgment filed by Neil Turner (“Turner”) and Bobby “Shannon” Jones (“Jones”) (collectively, “Plaintiffs”), the trial court entered a judgment declaring certain wildlife regulations unconstitutionally vague and overbroad.¹ The Missouri Department of Conservation (“the Department”) timely appealed the judgment, claiming the trial court erred in declaring the regulations invalid because 1) “[P]laintiffs failed to show that the regulations were vague as applied to the facts of their case and because the regulations convey to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct”; and 2) “the regulations do not implicate any first amendment interests.”

Because the trial court misapplied the law in declaring the challenged regulations unconstitutionally void for vagueness based on purely hypothetical factual scenarios instead of Plaintiffs' actual conduct, and because Plaintiffs failed to allege that their free speech and association rights were violated as required to properly assert a claim that the regulations are unconstitutionally over-broad, we reverse the judgment of the trial court.

Background

The challenged regulations are a part of the Missouri Wildlife Code promulgated by the Department (“the Code”) and identified as 3 C.S.R. 10–7.410(1)(A) (which prohibits hunting from or with a motor-driven conveyance); 3 C.S.R. 10–7.431(6)(C) (which prohibits deer hunting with a motor-driven land conveyance); and 3 C.S.R. 10–7.431(6)(D) (which prohibits deer hunting with the aid of dogs, a practice sometimes referred to as “deer dogging”).² We have jurisdiction to hear the appeal because it challenges the constitutionality of state regulations, not statutes. Adams Ford Belton, Inc. v. Missouri Motor Vehicle Comm'n, 946 S.W.2d 199, 201 (Mo. banc 1997).

Plaintiffs' original petition, filed February 22, 2010, alleged that each of the above-cited regulations violated the due process provisions of both the United States and Missouri constitutions. Relying on Title 28, United States Code, section 1446(a),³ the Department then removed the case to federal court. Plaintiffs responded by amending their petition to challenge the regulations as violating only their rights under the Missouri Constitution, and the case was remanded to state court.

Plaintiffs' amended petition (hereafter “the petition” or “Plaintiffs' petition”) alleged that the Department “threatened application” of the regulations against both Jones and Turner, that Turner had actually been charged criminally in federal court for violating the regulations, and that they each reside in Ripley County, Missouri. Plaintiffs' petition made no other factual averments relevant to their claims.

Section 252.040 limits wildlife hunting to the extent permitted by “rules and regulations.” Under section 252.020, “rules and regulations” mean those made by the Conservation Commission.⁴ Title 3 C.S.R. 10–7.410 is entitled “Hunting Methods.” Subsection (1)(A) of that regulation provides:

(1) Wildlife may be hunted and taken only in accordance with the following:

(A) Motor–Driven Air, Land, or Water Conveyances. No person shall pursue, take, attempt to take, drive, or molest wildlife from or with a motor-driven air, land, or water conveyance at any time. Except as provided in 3 C.S.R. 10–7.431, motor boats may be used if the motor has been completely shut off and its progress therefrom has ceased.

Title 3 C.S.R. 10–7.431 is entitled “Deer Hunting Seasons: General Provisions.” Subsections (6)(C) and (D) of that regulation provide:

(6) Deer may not be hunted, pursued, taken or killed:

....

(C) With the aid of a motor-driven land conveyance or aircraft.

(D) With the aid of dogs, in use or possession.

Plaintiffs' petition specifically alleged that the words contained in 3 C.S.R. 10–7.410(1) and 3 C.S.R. 10–7.431(6)(C)—prohibiting hunting and deer hunting, respectively, with or from motor-driven land conveyances—“are so unclear that people of ‘ordinary intelligence’ must guess at their meanings”; “by their literal terms, [they] criminalize the activity of the hunter using a motor-driven vehicle in any manner, shape or form during deer season” (such as a “white tail deer hunter conveying himself from his home to his hunting location with his truck”); they “are subject to the whimsical interpretations of individual conservation agents”; and they make it “impossible for a person of ordinary intelligence to know what he or she can lawfully do during deer season.”

Plaintiffs also alleged that 3 C.S.R. 10–7.431(6)(D)—prohibiting hunting deer with dogs—is unclear because “[i]t is impossible for a person of ‘common intelligence’ to determine what constitutes hunting deer ‘with the aid of dogs' or when or how dogs are ‘in use’ ”; when read literally, it “makes the mere presence of a hunter who is ‘pursing’ [sic] a deer in an undefined geographic area unlawful if dogs (also in an undefined general geographical location) may be ‘in use’ or have been ‘in use’ ”; and it is drafted in the plural such that it is permissible to hunt with only one dog, but the regulation “does not convey a sufficient warning” as to whether this means one dog per hunter or one dog per hunting party.

At the bench trial held on the petition in August 2010, the Department objected to the calling of any witnesses on the basis that the matter before the trial court was purely a question of law. The trial court overruled that objection and allowed Plaintiffs to present testimonial evidence.⁵ Testimony specifically related to Turner was given by Special Investigation Field Supervisor Greg Hitchings, who testified that although he could not identify Turner, he was aware that Turner was charged as a result of a November 2008 investigative operation known as “Pulling Wool” (“Operation Pull Wool”).

The only evidence presented by Turner about the substance of his charge was Exhibit 1, “a copy of the Federal indictment[.]” Exhibit 1 was not deposited with this court,⁶ but both parties cite the Department's Appendix in reference to the charge—that Turner conspired to violate the Lacey Act by agreeing with another person “to knowingly transport, receive, and acquire, wildlife, namely white tail deer (“deer”) when [the defendants] knew and in the exercise of due care should have known that the deer had been taken, possessed, and transported in violation of the laws and regulations of the United States” and 3 C.S.R. 10–7.410(1)(A) and 3 C.S.R. 10–7.431(6)(D). ⁷ In the information provided by the Department (and thereafter cited by Jones in his brief), Turner was alleged to have committed some of the “overt” acts of the conspiracy, namely to have “hunted deer with the aid of an all terrain vehicle” and “hunted deer with the aid of dogs” in the Mark Twain National Forest during November 2008.

Testimony specifically related to Jones came from conservation agent Darren Killian. He testified that he interviewed Jones in Doniphan, Missouri in connection with Operation Pull Wool. Killian believed that Jones had been “hunting with multiple dogs.” Killian did not know if the dogs used by Jones were the dogs owned by him or dogs owned by other individuals. When asked about Jones's possession of dogs “in his aid during the 2008 Missouri Firearm Season”, Killian replied that Jones was also being investigated for “[t]rying to locate and load dogs for other people.” Killian confirmed that he was investigating the prohibition against deer hunting with dogs set forth in 3 C.S.R. 10–7.431(6)(D).

In all, Plaintiffs called five witnesses. Each witness was employed in some capacity with the Department and was asked questions about various hypothetical scenarios involving hunters, dogs, and motor vehicles.⁸ The Department objected to the use of hypothetical questions. Those objections were overruled by the trial court, which granted the Department a continuing objection to the use of hypothetical questions.

Although the hypothetical questions to each witness were similar, they were not identical, and the answers sometimes differed. For example, the testimony about the “use” of dogs varied somewhat. Turner's counsel asked Killian, “If during the Firearm Deer Season if [sic] you have a dog just with you out in the woods maybe staying right by you is that using a dog to aid you to hunt, to pursue, or kill deer?” Killian replied, “Certainly not.” Killian also testified that circumstances and the hunter's statements could determine whether the dog was being used to hunt. When Turner's counsel asked conservation agent Chris Ely whether “having a dog laying at your feet while you are deer hunting would be a violation[,]” Ely responded, “While you are deer hunting if you had—if you possessed a dog, yes.”

Plaintiffs also questioned the witnesses about their interpretations of the meaning of the word “dogs” as used in the regulations. The witnesses generally testified that “dogs” could also include a single dog, but one witness who did not personally participate in Operation Pull Wool, district supervisor Allen Daniels, testified, “If I read the regulation as dogs in the plural as it is written here yes, I would say yes, dogs would mean yes, more than one.” About the use of motor-driven land conveyances in hunting deer, conservation agent Jason Langston conceded that “people could interpret [3 C.S.R. 10–7.431] differently.”

Neither Plai...