Defendant State of Missouri s Motion to Dismiss

Similar documents
Defendant State of Missouri s Motion for Summary Judgment

TABLE OF CONTENTS. Table of Authorities...3. Statement of Facts...6. Points Relied On..7. Argument..10

SUPREME COURT OF THE STATE OF MISSOURI ) ) ) ) ) ) ) ) ) ) APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS HON. STEVEN R.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI SIXTEENTH JUDICIAL CIRCUIT AT KANSAS CITY

IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS STATE OF MISSOURI

IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI

IN THE SUPREME COURT OF MISSOURI. No. SC ALVIN BROOKS, et al., Respondents, STATE OF MISSOURI, et al., Appellants.

IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI

IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI

IN THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI

THE SUPREME COURT OF MISSOURI. JACKSON COUNTY, et al., Respondents. vs. STATE OF MISSOURI. Appellant. No. SC 88038

CAUSE NO CV. JAMES FREDRICK MILES, IN THE 87 th DISTRICT COURT DEFENDANT TEXAS CENTRAL RAILROAD & INFRASTRUCTURE, INC. S

IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT APPEAL NO. ED JOHN CHASNOFF, Plaintiff/Respondent

IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS STATE OF MISSOURI ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

SUPREME COURT OF MISSOURI en banc

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

IN THE CIRCUIT COURT OF ANDREW COUNTY, MISSOURI ) ) ) ) ) ) ) ) ) )

14SL-CC03657 IN THE TWENTY-FIRST CIRCUIT COURT OF MISSOURI ST. LOUIS COUNTY, MISSOURI

IN THE STATE OF MISSOURI JACKSON COUNTY MISSOURI ASSOCIATE CIRCUIT COURT

IN THE CIRCUIT COURT OF STODDARD COUNTY, MISSOURI

MOBar CLE Residential Landlord/Tenant Law Part 2 Page 1

In The Missouri Court of Appeals Western District

Case: 4:13-cv ERW Doc. #: 28 Filed: 04/30/13 Page: 1 of 8 PageID #: 144

In the Missouri Court of Appeals Eastern District

Case: 4:15-cv RWS Doc. #: 27 Filed: 01/21/16 Page: 1 of 6 PageID #: 160

MOBar CLE Residential Landlord/Tenant Law Part 2 Page 1 B--1

FILED FRANK WHITE JR, )

IN THE CIRCUIT COURT OF JEFFERSON COUNTY STATE OF MISSOURI ASSOCIATION DIVISION

In the Missouri Court of Appeals Eastern District

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

SUPREME COURT OF MISSOURI en banc

Case: Document: 6 Filed: 11/03/2016 Pages: 6 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No ) ) ) ) ) ) ) ) ) )

SUPREME COURT OF MISSOURI en banc

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT KANSAS CITY

Plaintiff. The State Board of the Great Outdoors Colorado Trust Fund, Defendant. COURT USE ONLY Case No.

Case: 4:17-cv AGF Doc. #: 1 Filed: 01/23/17 Page: 1 of 6 PageID #: 1

IN THE 13TH JUDICIAL CIRCUIT COURT OF BOONE COUNTY, MISSOURI

IN THE CIRCUIT COURT OF ST. LOUIS COUNTY STATE OF MISSOURI ) ) ) ) ) ) ) ) ) ) ) ) DEFENDANT S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM

IN THE SUPREME COURT OF MISSOURI

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Appeal from the Circuit Court of the City of St. Louis The Honorable David Dowd. Reply Brief of Appellant

IN THE CIRCUIT COURT OF ST. LOUIS CITY STATE OF MISSOURI

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT KANSAS CITY

In the United States Court of Appeals for the Fifth Circuit

IN THE 13TH JUDICIAL CIRCUIT COURT OF BOONE COUNTY, MISSOURI

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

Case: 4:17-cv AGF Doc. #: 1 Filed: 09/08/17 Page: 1 of 7 PageID #: 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

IN THE CIRCUIT COURT OF ST. LOUIS COUNTY STATE OF MISSOURI. Div. CLASS ACTION PETITION

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI SIXTEENTH JUDICIAL CIRCUIT AT KANSAS CITY

MISSOURI COURT OF APPEALS WESTERN DISTRICT

RECEIVED ORIGINAL PROCEEDING IN UNAUTHORIZED PRACTICE OF

Case 1:05-cv SEB-VSS Document 45 Filed 09/08/2005 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION NOTICE OF REMOVAL

Case 3:13-cv JJB-SCR Document 27 09/20/13 Page 1 of 10 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Case 1:16-cv MSK-CBS Document 21 Filed 10/05/16 USDC Colorado Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

MOTION FOR TELEPHONE TESTIMONY OF W. SCOTT ROCKEFELLER WITH REQUEST FOR EXPEDITED RULING

IN THE SUPREME COURT OF MISSISSIPPI CASE NO CP APPEAL FROM THE CIRCUIT COURT OF LOWNDES COUNTY, MISSISSIPPI CASE NO.

Courthouse News Service

Case 2:16-cv PLM-TPG ECF No. 1 filed 12/27/16 PageID.1 Page 1 of 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION ) CAUSE NO: 1:05-CV-0634-SEB-VSS

Missouri Court of Appeals

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

IN THE CIRCUIT COURT OF JACKSON COUNTY AT KANSAS CITY STATE OF MISSOURI

IN THE CIRCUIT COURT FOR NINETEENTH JUDICIAL CIRCUIT COLE COUNTY, MISSOURI ) ) ) ) ) ) ) ) ) ) )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

IN THE CIRCUIT COURT OF FAULKNER COUNTY, ARKANSAS DIVISION ONE

Case 3:12-cv Document 99 Filed in TXSD on 04/07/14 Page 1 of 9

Vance v. Griggs. Why Law Firms Shoul Agreements for Depar

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI, AT INDEPENDENCE

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE I. INTRODUCTION

FILED: NEW YORK COUNTY CLERK 10/03/ :58 PM INDEX NO /2016 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/03/2016

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO : : : : : : : : : : : : : : : : : : : : : : : : : : : :

Plaintiff, Defendant. for Denbury Resources, Inc. ("Denbury" or "Defendant") shares pursuant to the merger of

IN THE CIRCUIT COURT OF JEFFERSON COUNTY STATE OF MISSOURI

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS CIVIL DIVISION CITY OF LITTLE ROCK, ARKANSAS

No ATTORNEY GENERAL TROY KING S NOTICE OF APPEARANCE AND MOTION TO DISMISS OR DENY PETITION

DEFENDANT CITY OF HIALEAH S RESPONSE TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

CONDUCT OF ELECTIONS

MISSOURI CIRCUIT COURT TWENTY-SECOND JUDICIAL CIRCUIT (City of St. Louis) ) ) ) ) ) ) ) ) ) ) ) ORDER AND JUDGMENT

IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI CIVIL DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, Defendant.

UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISIONS. Chapter 9 Hon. Steven W. Rhodes Debtor.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Case 3:11-cv WDS-PMF Document 73 Filed 07/09/13 Page 1 of 6 Page ID #688

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION

IN THE SUPREME COURT OF MISSOURI. Defendant-Appellant. Cause No. SC082519

12 CVS. Scenic NC, Inc., ) Plaintiff ) ) ) North Carolina Department of MOTION FOR TEMPORARY RESTRAINING ORDER. ) Transportation, ) Defendant )

Case 3:14-cv L Document 1 Filed 06/18/14 Page 1 of 6 PageID 1

IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Case 5:11-cv OLG-JES-XR Document 29 Filed 07/12/11 Page 1 of 11

Case: 4:18-cv RLW Doc. #: 1 Filed: 05/25/18 Page: 1 of 10 PageID #: 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

SUPERIOR COURT DIVISION COUNTY OF WAKE 08 CVS STROOCK, STROOCK & LAVAN LLP, ) Plaintiff ) ) v. ) ORDER AND OPINION ) ROBERT DORF, ) Defendant )

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT INDEPENDENCE, MISSOURI. ) Case No. ) Division.

MISSOURI CIRCUIT COURT TWENTY-SECOND JUDICIAL CIRCUIT (St. Louis City)

Transcription:

IN CIRCUIT COURT OF MONITEAU COUNTY STATE OF MISSOURI RICHARD N. BARRY, Plaintiff, v. Case No. CV704-29CC STATE OF MISSOURI, et al., Defendants. Defendant State of Missouri s Motion to Dismiss Plaintiff fails to state a claim against the State upon which relief can be granted, or that is ripe, and the claim against the State must therefore be dismissed. Rule 55.27(a(1 and (6. 1. Standard for dismissal of plaintiff s claims for relief In adjudging a motion to dismiss, the court deems all facts pleaded as true, liberally construing the averments. Sandy v. Schriro, 39 S.W.3d 853, 855 (Mo. App. W.D. 2001. The petition must contain facts, not conclusions, that invoke principles of substantive law entitling plaintiffs to relief. Id. The sufficiency of the petition is jurisdictional. Wright v. Dep t of Corrections, 48 S.W.3d 662, 666 (Mo. App. W.D. 2001. An action for declaratory judgment is not a panacea for all legal ills. King Louie Bowling Corp. v. Missouri Ins. Guar. Assoc., 735 S.W.2d 35, 38 (Mo. App. W.D. 1987. To establish entitlement to relief, the plaintiffs are required to plead and prove: (1 the existence of a justiciable, presently existing controversy, rather than a hypothetical

situation for which they seek an advisory opinion; (2 a legally protected interest, consisting of a pecuniary or personal interest directly at issue; and (3 a question ripe for judicial decision. See, e.g., City of St. Louis v. Milentz, 887 S.W.2d 709 (Mo. App. E.D. 1994. The petition before this court does not plead facts invoking substantive principles of law that establish plaintiff s entitlement to relief. II. Status of Missouri s Concealed Carry Law after Brooks The decision that most directly addresses plaintiff s request for a declaratory relief against the State is Brooks v. State, 128 S.W.3d 844 (Mo. banc 2004(copy attached. The mandate issued on March 30, 2004 and the decision is now final. In Brooks, the Court held that the legislature constitutionally exercised its authority to regulate the carrying of concealed weapons in the State when it enacted Missouri s Concealed Carry Act, now codified at 571.101 571.121, RSMo (Supp. 2003. However, in construing part of the law s funding mechanism, codified at 50.535, RSMo (Supp. 2003, the Court held that the law could, in certain respects, constitute an unfunded mandate and thus violate Mo. Const. art. X, sections 16 and 21. Specifically, the Court explained that, under Mo. Const. art. X, sections 16 and 21, the State may not require new activities or services without providing funds sufficient to cover new costs. Id at 850. The $100 application fee that a sheriff is authorized to collect pursuant to 571.101.10 is, by that same provision, required to be deposited into the sheriff s revolving fund. And the Supreme Court held that, where funds are expended -2-

under 50.535.2, the use of the funds is limited to training and equipment. Id. Therefore, to the extent that a sheriff directly incurs substantial costs for other purposes purposes other than training and equipment in connection with his or her issuance of certificates of qualification for concealed carry endorsements, the law imposes an unfunded mandate. Id. The remedy for such a violation of the Hancock amendment is practical and limited. The Court held that where there is specific proof that a sheriff will directly incur substantial, increased costs that are unfunded, i.e., costs that go beyond training and equipment, that county is not required to comply with the Concealed Carry Act. Id. The question was ripe for adjudication in Brooks with respect to four Missouri counties (Camden, Cape Girardeau, Greene, and Jackson Counties, because the record contained specific evidence concerning those four, such as proof of increased personnel costs to do fingerprinting, perform background checks, and process applications; and to pay the State Highway Patrol to perform fingerprint analyses. Id, at 849. The Court therefore enjoined the State from enforcing the Concealed Carry Act with respect to the four counties, to the extent that the Act constitutes an unfunded mandate imposed on them. Id, at 850. III. Plaintiff s claim against the State must be dismissed Here, the petition raises two types of Hancock challenges, one directed against Moniteau County s activities, and the other directed against the State s actions. With regard to the former, plaintiff alleges that separate defendants Moniteau County and -3-

Sheriff Jones violated Hancock by incurring and paying for costs for Concealed Carry applications without local voter approval. Petition, pp. 3-4. The State cannot be held liable on this claim, as Mo. Const. art. X, section 22 regulates the conduct of only political subdivisions of the State. We expect this claim to fail, as it lacks any basis in law or fact, but the State will not address it. A. The court lacks subject matter jurisdiction of plaintiff s claim against the State, because the claim is not ripe With regard to the claim against the State, plaintiff alleges that the State failed to fully fund the Concealed Carry Act and imposed an unfunded mandate. Petition, pp. 4-5, 8-9. Plaintiff asks for a declaratory judgment to that effect. Petition, p. 5. But plaintiff does not plead that the State has compelled or threatened to compel implementation of the application process in any county of the State. And in fact, in the wake of Brooks, the State has neither compelled nor threatened to compel this county or any other to implement the concealed carry application process. Defendant State s Answer, 9. Plaintiff s shortcoming of pleading is necessary to his claim, because if the State is not compelling or threatening to compel the conduct, there is no mandate. Declaratory judgment does not lie for hypothetical situations. City of St. Louis v. Milentz, 887 S.W.2d 709 (Mo. App. E.D. 1994. Because plaintiff does not plead, and cannot prove, that the State has compelled or threatened to compel this county to implement the concealed carry application process, plaintiff does not invoke substantive principles of law that establish a presently existing or ripe controversy. -4-

B. Plaintiff does not state a claim against the State Plaintiff also fails to plead what specific costs the sheriff has directly incurred that are not reimbursable by the application fee, i.e., the specific costs that are not costs for training and equipment. As discussed in Section II, above, the Supreme Court in Brooks did hold that the Concealed Carry Act s funding mechanism could violate Hancock. Id, at 850. But a court can only reach such a conclusion on a case by case basis, because the court must have before it specific evidence that a sheriff will directly incur costs beyond the 50.535.2 limitations of training and equipment. Id. No Hancock case can be decided on the basis of presumption. Id. Even if plaintiff pleads and proves such costs, the only relief this court can grant is a limited injunction prohibiting the State from compelling Moniteau County and Sheriff Jones to undertake the processing of concealed carry applications. Brooks, at 850. But plaintiff seeks no injunction and, as noted above, such an injunction is not necessary as there is no possibility that the State will do that which would be enjoined. WHEREFORE the court should dismiss all claims against the State and enter such other orders as are just and proper. -5-

Respectfully submitted, JEREMIAH W. (JAY NIXON Attorney General PAUL C. WILSON Missouri Bar No. 40804 Deputy Chief of Staff ALANA M. BARRAGÁN-SCOTT Missouri Bar No. 38104 Chief Counsel Assistant Attorneys General Broadway State Office Building 221 West High Street, 8th Floor Jefferson City, Missouri 65102 (573 751-3321 (573 751-8796 (facsimile ATTORNEYS FOR DEFENDANT STATE OF MISSOURI -6-

Certificate of Service The undersigned hereby certifies that a copy of the foregoing was mailed, postage prepaid, on this 26 th day of April, 2004, to: Burton Newman Lacks & Newman 130 S. Bemiston, 8 th Floor St. Louis, MO 63105 Attorney for Plaintiff Barry Richard C. Miller Monsees, Miller, Mayer, Presley & Amick, P.C. 4717 Grand Avenue, Suite 820 Kansas City, MO 64112 Attorney for Plaintiff Barry John T. Kay 405 N. High St. California, MO 65018 Attorney for Defendants Moniteau County and Sheriff Kenny Jones Michael B. Minton Richard P. Cassetta Jason A. Wheeler Thompson Coburn LLP One U.S. Bank Plaza St. Louis, MO 63101 Attorneys for Intervenor Larry Crawford Assistant Attorney General -7-