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William Foster was convicted of capital murder, first-degree robbery, and armed criminal action. Many years later, the department of corrections informed Foster that any funds deposited into his prison account to pay for college correspondence courses or an attorney would be subject to seizure by the state, pursuant to the Missouri Incarceration Reimbursement Act (MIRA). Foster filed a petition for declaratory judgment seeking a declaration that MIRA could not be applied to require reimbursement from him for the cost of his incarceration because the criminal acts that resulted in his incarceration were committed prior to the law's enactment. The trial court dismissed Foster's petition. The Supreme Court affirmed, holding that the facts alleged in Foster's petition were not developed sufficiently to give rise to a ripe controversy because the petition did not allege that Foster would receive sufficient assets to trigger the state's authority to seek reimbursement under MIRA.Receive FREE Daily Opinion Summaries by Email
SUPREME COURT OF MISSOURI
WILLIAM WENTWORTH FOSTER,
STATE OF MISSOURI,
) No. SC91341
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
The Honorable Paul C. Wilson, Judge
Opinion issued August 30, 2011
William Foster filed a petition for declaratory judgment seeking a declaration
that the Missouri Incarceration Reimbursement Act (MIRA), section 217.825, et
seq., 1 could not be applied to require reimbursement from him for the cost of his
incarceration because the criminal acts that resulted in his incarceration were
committed prior to the law’s enactment. The trial court dismissed Mr. Foster’s
Because the facts alleged in Mr. Foster’s petition are not developed
sufficiently to give rise to a ripe controversy, he cannot maintain a declaratory
Accordingly, the judgment of the trial court dismissing Mr.
Foster’s petition for declaratory judgment is affirmed.
Unless otherwise noted, all statutory references are to RSMo 2000.
Factual and Procedural Background
In 1977, Mr. Foster was convicted of capital murder, first-degree robbery,
and armed criminal action.
He presently is incarcerated in the department of
corrections on sentences for those convictions. In 2009, department personnel
informed Mr. Foster that any funds deposited by someone into his prison account to
pay for college correspondence courses or an attorney would be subject to seizure
by the state, pursuant to MIRA, to reimburse it for the cost of his incarceration. On
receiving this information, Mr. Foster filed a pro se petition for declaratory
judgment seeking a declaration that any funds deposited into his prison account
would not be subject to seizure by the state.
His petition claimed that the
application of MIRA to him violates provisions of the Missouri Constitution
prohibiting ex post facto laws or laws retrospective in operation because the act was
passed after he committed the crimes that resulted in his incarceration.
Thereafter, the state filed a motion to dismiss Mr. Foster’s petition for
declaratory judgment. In its motion, the state first asserted that Mr. Foster’s petition
was premature and did not present a justiciable controversy. Additionally, the state
claimed that applying MIRA to Mr. Foster would not operate as an ex post facto law
because MIRA does not focus on past crimes and was not enacted as additional
punishment. 2 After receiving Mr. Foster’s response to the state’s motion, the trial
court entered its judgment dismissing his petition. In its judgment, the court ruled
The state’s motion to dismiss addressed Mr. Foster’s ex post facto challenge but
failed to address his claim that MIRA was unconstitutionally retrospective.
that no justiciable controversy existed because the state had not filed a MIRA action
seeking reimbursement from Mr. Foster for the cost of his incarceration. Mr. Foster
On appeal, Mr. Foster raises three distinct issues. First, Mr. Foster claims
that the trial court erred in finding that his petition for declaratory judgment did not
present a justiciable controversy. Next, Mr. Foster asserts that applying MIRA to
him violates the constitutional prohibition against ex post facto laws because the act
was passed after he committed the crimes that resulted in his incarceration.
Alternatively, Mr. Foster contends that applying MIRA to him violates the state
constitution’s prohibition against laws that are retrospective in operation. Because
Mr. Foster’s appeal involves challenges to the validity of MIRA, this Court has
exclusive appellate jurisdiction over his claims. MO. CONST. art. V, sec. 3. 3
The state claims that because the trial court did not adjudicate Mr. Foster’s
challenge to the constitutional validity of MIRA, this Court lacks exclusive
appellate jurisdiction over his claims. This Court’s jurisdiction is controlled by
article V, section 3 of the Missouri Constitution, which states, in pertinent part, that
“[t]he supreme court shall have exclusive appellate jurisdiction in all cases
involving the validity of ... a statute or provision of the constitution of this state. ...”
(Emphasis added.) “Whether an appeal falls within that general jurisdiction, or the
exclusive appellate jurisdiction established for this Court by the constitution, is
determined by the issues raised and preserved in the trial record.” State v. Smith,
779 S.W.2d 241, 242 (Mo. banc 1989). Here, the case plainly involves a challenge
to the validity of MIRA, a claim raised in Mr. Foster’s initial pleading and in two of
his claims of error on appeal. Mr. Foster has taken no action to abandon that claim.
The fact that the trial court failed to reach the constitutional issue does not deprive
this Court of its exclusive appellate jurisdiction. Cf. Ross v. State, 335 S.W.3d 479,
480 (Mo. banc 2011) (this Court retains exclusive appellate jurisdiction even if it
does not reach a party’s challenge to the validity of a statute).
Standard of Review
This Court reviews the trial court’s grant of a motion to dismiss de novo.
City of Lake Saint Louis v. City of O’Fallon, 324 S.W.3d 756, 759 (Mo. banc
2010). 4 In reviewing the propriety of the trial court’s dismissal of the petition, this
Court considers the grounds raised in the defendant’s motion to dismiss and does
not consider matters outside the pleadings. Id. In determining whether a motion to
dismiss should have been granted, the appellate court reviews the petition “in an
almost academic manner, to determine if the facts alleged meet the elements of a
recognized cause of action, or of a cause that might be adopted in that case.” Id. If
the motion to dismiss can be sustained on any ground alleged in the motion, the trial
court’s ruling will be affirmed.
Farm Bureau Town and Country Ins. Co. of
Missouri v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995).
Mr. Foster’s Claims are not Ripe for Review
The trial court dismissed Mr. Foster’s petition on the basis that his
declaratory judgment action did not present a justiciable controversy. Therefore, it
is first necessary to determine whether Mr. Foster satisfies the requirements for
maintaining a declaratory judgment action. To maintain a declaratory judgment
In Schaefer v. Koster, 342 S.W.3d 299 (Mo. banc 2011), this Court suggests that
an appellate court reviews a trial court’s dismissal of a petition for declaratory
judgment for an abuse of discretion. To the extent that Schaefer can be read as
changing the standard of review from de novo to abuse of discretion in the context
of a trial court’s grant of a motion to dismiss, it no longer should be followed.
action, the party seeking the declaration must demonstrate that (1) a justiciable
controversy exists and (2) the party has no adequate remedy at law. Levinson v.
State, 104 S.W.3d 409, 411 (Mo. banc 2003). A justiciable controversy exists when
the plaintiff: (1) “has a legally protectible interest at stake;” (2) “a substantial
controversy exists between parties with genuinely adverse interests;” and (3) “that
controversy is ripe for judicial determination.” Id. In the present case, ripeness is
the critical element in determining whether Mr. Foster’s petition for declaratory
judgment presents a justiciable controversy.
A controversy is ripe when the parties’ dispute is developed sufficiently to
allow the court to make an accurate determination of the facts, to resolve a presently
existing conflict, and to grant specific relief of a conclusive nature. Id. at 411-12.
In the present case, Mr. Foster has a legally protectible interest at stake because he
has a pecuniary interest in protecting his assets from seizure by the state and that
interest is subject to prospective consequential relief. Lane v. Lensmeyer, 158
S.W.3d 218, 222 (Mo. banc 2005) (defining a “legally protectible interest” as “a
pecuniary or personal interest directly at issue and subject to immediate or
prospective consequential relief.”). Additionally, a substantial controversy exists
between Mr. Foster and the state regarding whether Mr. Foster’s assets are subject
to seizure in a future MIRA action. Likewise, Mr. Foster’s interests in preserving
his assets are genuinely adverse to the state’s interests in seizing those assets.
The state argues that, nonetheless, there is not a justiciable controversy and
Mr. Foster’s claim is not ripe because the state: (1) never attempted to seize his
assets by filing a MIRA complaint; (2) does not have a MIRA action currently
pending against him; and (3) has not obtained a MIRA judgment approving seizure
of his assets.
The state’s argument that Mr. Foster’s claim is not ripe simply because the
state has not attempted to enforce MIRA against him overlooks the principle that
“[t]here can be a ripe controversy before a statute is enforced.”
Parenthood of Kansas v. Nixon, 220 S.W.3d 732, 738 (Mo. banc 2007); see also
Missouri Ass’n of Nurse Anesthetists, Inc. v. State Bd. of Registration for the
Healing Arts, --- S.W.3d ---, 2011 WL 2552549 * 5 (Mo. banc) (allowing preenforcement review of an administrative rule). Specifically, “[p]re-enforcement
constitutional challenges to laws are ripe when (1) ‘the facts necessary to adjudicate
the underlying claims [are] fully developed’ and (2) ‘the laws at issue [are]
affecting the plaintiffs in a manner that [gives] rise to an immediate, concrete
dispute.’” Planned Parenthood of Kansas, 220 S.W.3d at 739 (internal citations
omitted). The state’s assertion that Mr. Foster’s claim is not ripe because no
attempt has been made to seize his assets conflicts, therefore, with one of the
primary functions of a declaratory judgment, which is to resolve conflicts before a
loss occurs. See Missouri Ass’n of Nurse Anesthetists, 2011 WL 2552549 * 5; see
also Nicolai v. City of St. Louis, 762 S.W.2d 423, 425 (Mo. banc 1989); Clifford
Hindman Real Estate, Inc. v. City of Jennings, 283 S.W.3d 804, 807 (Mo. App.
Although the state was incorrect in its arguments that there is no justiciable
controversy because it has not attempted to enforce MIRA against Mr. Foster and
the money has not yet been deposited, it is correct that his request for preenforcement review is not ripe. Mr. Foster’s petition is not ripe because the facts
necessary to adjudicate Mr. Foster’s constitutional claims are not developed fully in
that his petition for declaratory judgment does not allege that he will receive
sufficient assets to trigger the state’s authority to seek reimbursement under MIRA.
Section 271.831 sets out the procedure the state must follow before filing a
MIRA action. Under the statute, the state may, after completing an investigation
into the offender’s assets, file an action to secure reimbursement from the offender
“[i]f the attorney general … has good cause to believe that an offender … has
sufficient assets to recover not less than ten percent of the estimated cost of care of
the offender or ten percent of the estimated cost of care of the offender for two
years, whichever is less. …” Section 217.831.3. “The requirement that the attorney
general have good cause to believe that the reimbursement action will yield a
certain recovery is a condition precedent to filing the petition.” State ex rel. Nixon
v. Peterson, 253 S.W.3d 77, 83 (Mo. banc 2008). “If the condition is not met, the
attorney general does not have the authority to seek reimbursement.” Id.
In the present case, Mr. Foster’s petition for declaratory judgment alleges
that money might be deposited into his prison bank account by someone to pay for a
college correspondence course or to allow him to retain an attorney. That would be
sufficient to make a justiciable claim if his allegations were sufficient to show a
reasonable likelihood that deposits will be made sufficient to trigger the application
of MIRA. He need not actually put those amounts at risk by permitting them to be
deposited for there to be a justiciable controversy. Cf. Planned Parenthood of
Kansas, 220 S.W.3d at 739. However, his petition does not allege how much
money he expects to receive, nor does it allege how much money is presently in his
prison account. As a result, it is impossible to determine from his petition whether
he will receive sufficient funds to trigger the state’s authority to seek reimbursement
under section 217.831.3. As noted above, it is a condition precedent to filing a
MIRA action that the state have good cause to believe that the action will yield the
statutory minimum recovery. Peterson, 253 S.W.3d at 83. In this case, that would
mean the state would be required to have a good faith belief that Mr. Foster has
sufficient assets to cover 10 percent of the estimated cost of incarcerating him for
two years before filing a MIRA complaint. That is not a nominal sum of money. 5
Mr. Foster has not shown a reasonable basis for believing that the anticipated gifts
or other monies that may be deposited will be sufficient to trigger the state’s
authority to initiate MIRA proceedings. Whether it will be sufficient, therefore,
As such, the facts necessary to adjudicate Mr. Foster’s
constitutional claims are not developed sufficiently to give rise to a presently
Of course, the state’s mere anticipation that Mr. Foster may receive a gift at some
future point is insufficient to give the state the right to file a MIRA complaint. The
prospect of a future gift does not constitute an asset because the offender is not
entitled to it and it is not in the offender’s account, as required by MIRA. State ex
rel. Nixon v. Hughes, 281 S.W.3d 902, 910 (Mo. App. 2009) (citing State ex rel.
Nixon v. Worthy, 247 S.W.3d 8, 14–15 (Mo. App. 2008)).
existing conflict. Because the dispute between Mr. Foster and the state is not fully
developed, the case is not ripe for judicial determination. 6
Because Mr. Foster’s petition for declaratory judgment does not allege
sufficient facts to give rise to a justiciable controversy, the judgment of the trial
court is affirmed.
PATRICIA BRECKENRIDGE, JUDGE
Teitelman, C.J., Russell,
Fischer, Stith and Price, JJ.,
and Wolff, Sr.J., concur.
Because the holding that Mr. Foster does not present a justiciable controversy is
dispositive, the Court need not address his constitutional claim