STATE ex rel. Denise WILLIAMS, Plaintiff, v. Honorable William J. MARSH, Judge, 16th Judicial Circuit, Defendant. Denise WILLIAMS, Appellant, v. Edward M. WILLIAMS, Respondent.
Nos. 62765, 62762
Supreme Court of Missouri, En Banc.
Jan. 12, 1982.
626 S.W.2d 223
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.
HIGGINS, Judge.
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,
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 known1 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
The court dismissed the petition because it held the Adult Abuse Act, in general and specifically
The Adult Abuse Act, S.B. 524, (codified at
A.
Jurisdiction of the mandamus action is in this Court because the validity of a Missouri statute is involved, and this is an original proceeding.
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
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 curiae7 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, 213 S.W.2d 210, 212 (banc 1948).
B.
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.
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).
I.
The trial court ruled that the Act violates
Studies have shown that the victim of adult abuse is usually a woman. See articles cited note 2, supra. In a large percentage of families, children have been present when the abuse occurred. In one study, fifty-four percent of the battered women interviewed reported that their husbands had committed acts of violence against their children as well as against them. Gayford, supra, note 2 at 196. Even if the child is not physically injured, he likely will suffer emotional trauma from witnessing violence between his parents. Abuse appears to be perpetuated through the generations; an individual who grows up in a home where violence occurs is more likely either to abuse others as an adult or to be a victim of abuse. See authorities cited note 2, supra. Adult abuse, therefore, is a problem affecting not only the adult members of a household but also the children. The most compelling reason for an abused woman to remain in the home subject to more abuse is her financial dependency; this is particularly true for the women with children. Gelles, supra note 2, at 660. The orders pertaining to child custody, support, and maintenance are all fairly related to and serve the purpose of aiding victims of domestic violence and preventing future incidents of adult abuse.
II.
The court held that
Sections
The due process guarantee is intended to protect an individual against arbitrary acts of the government. Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974) (citing Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889)). Furthermore, it protects the right to use and enjoy one‘s property without governmental interference. Fuentes v. Shevin, 407 U.S. at 81, 92 S.Ct. at 1994. Before the guarantee of due process comes into play, however, there must be a deprivation by the government of a constitutionally protected interest. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). The interests which are subject to temporary deprivation through the issuance of an ex parte order constitute significant liberty and property interests falling “within the purview of the Due Process Clause.”8 See Fuentes v. Shevin, 407 U.S. at 90, 92 S.Ct. at 1999; Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 2160, 68 L.Ed.2d 640 (1981); Little v. Streater 452 U.S. 1, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627 (1981); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). Thus the procedures available under the Act must meet the constitutional standard.
Notice and an opportunity to be heard must be provided by the state in a meaningful manner prior to deprivation of a protected interest. Fuentes v. Shevin, 407 U.S. at 80, 92 S.Ct. at 1994; Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971). This rule is not necessarily applied when there is only a temporary taking, as is the case here. Due process is a flexible concept, Goss v. Lopez, 419 U.S. 565, 578, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975); the same procedures need not be applied in all instances. The extent and nature of procedures depends upon weighing of the private interests affected and the governmental functions involved. Arnett v. Kennedy, 416 U.S. 134, 167-68, 94 S.Ct. 1633, 1650-1651, 40 L.Ed.2d 15 (1974). The United States Supreme Court in Mathews v. Eldridge, supra, identified a third factor to be considered in the balancing formula; the risk of erroneous deprivation using the existing procedures. See Lassiter v. Department of Social Services, 101 S.Ct. at 2159 (Stewart, J.), 2165 (Blackmun, J., dissenting) (Mathews v. Eldridge, supra, balancing test used in analysis of North Carolina‘s termination of parental rights statute).
The first factor is the private interest affected. The respondent has two private interests at stake; a property interest in one‘s home and a liberty interest in custody of one‘s children. These interests are significant, the importance of which has been emphasized by the United States Supreme Court. See cases, supra.
The second factor in the balancing formula is the governmental interest. Mathews v. Eldridge, 424 U.S. at 347, 96 S.Ct. at 908, The Adult Abuse Act is an exercise of the state‘s police power. Through the procedures established to aid victims of domestic violence, the legislature promotes the general health, welfare, and safety of its citizens. The magnitude of the problem of domestic violence is evidenced by statistics compiled by the FBI in 1973 which indicate that one-fourth of all homicides in the United States occur within the family.9 The petitioner‘s interests which are protected by the state in furthering its interests are the same as those of the respondent. The parties, irrespective of marital status, may own or rent the dwelling jointly, although under the Act this is not required. If it becomes unsafe for both parties to remain in the home, one may need to be excluded. The choice is reduced to the victim of the abuse leaving or the court ordering the abuser to leave. Parents may have an equal interest
The Missouri Legislature has established a mechanism whereby the state can intervene when abuse of one adult by another household member occurs or is threatened and thus prevent further violence. State legislatures have broad power to enact laws to protect the general health, welfare, and safety. Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423-24, 72 S.Ct. 405, 407-408, 96 L.Ed. 469 (1952). States also have been given deference in adopting reasonable summary procedures when acting under their police power. Mackey v. Montrym, 443 U.S. 1, 17, 99 S.Ct. 2612, 2620, 61 L.Ed.2d 321 (1979).
The third factor in the test in Mathews v. Eldridge, supra is “the fairness and reliability of the existing pretermination procedures, and the probable value, if any, of additional procedural safeguards.” Id. 424 U.S. at 343, 96 S.Ct. at 907. “The risk of wrongful use of the procedure must also be judged in the context of the issues which are to be determined at that proceeding.” Mitchell v. W. T. Grant Co., 416 U.S. at 617, 94 S.Ct. at 1905.
An ex parte order of protection is analogous to a temporary restraining order because both are injunctions issued prior to notice or hearing. See
A protection order, if granted, remains in effect until the hearing which is to be held “[n]ot later than fifteen days after the filing of a petition.”
The Act meets the foregoing standards. The Act is directly necessary to secure important governmental interests, i.e., protection of victims of abuse and prevention of further abuse. The situation where the challenged Act is to be applied are those where prompt action is necessary, i.e., when there is “[a]n immediate and present danger of abuse“—the only time the ex parte order may be issued. The government has kept strict control over its powers. Only a judge in his discretion, may issue the ex parte orders. This differs from the procedure where “[p]rivate parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another” disapproved in Fuentes v. Shevin, supra at 93, 92 S.Ct. at 2001. Under the Adult Abuse Act, the petitioner requests the court to act on his or her behalf. The court, not the clerk, must issue the order and the orders are not to be issued routinely but only after the petitioner has filed a verified petition showing good cause.
The burden is on the challenger to show that this exercise of the state‘s police power is unreasonable, Caesar‘s Health Club v. St. Louis County, 565 S.W.2d 783, 786 (Mo.App.1978), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978), a burden not here carried. The interests and procedures considered, these ex parte order provisions comply with due process requirements because they are a reasonable means to achieve the state‘s legitimate goal of preventing domestic violence, and afford adequate procedural safeguards, prior to and after any deprivation occurs.
III.
The court found that the Act is unconstitutional because it authorizes imprisonment for debt in violation of
IV.
The trial court held the Act void for vagueness because it fails to give adequate warning as to what conduct is proscribed and thus violates
Vagueness, as a due process violation, takes two forms. One is the lack of notice given a potential offender because the statute is so unclear that “men of common intelligence must necessarily guess at its meaning.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); see Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The other is that the statute fails to set out “explicit standards” for those who must apply it, resulting in arbitrary and discriminatory application. Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. at 2299.
As to the former, “[i]f terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence, they satisfy the constitutional requirements as to definiteness and certainty.” Prokopf v. Whaley, 592 S.W.2d 819, 824 (Mo. banc 1980); State v. Williams, 473 S.W.2d 382 (Mo.1971).
Violation of the terms and conditions of an ex parte order of protection, of which the respondent has notice, shall be a class C misdemeanor. Violation of the terms and conditions of a full order of protection shall be a class C misdemeanor.
Under this section violation of an ex parte order is a misdemeanor only if “respondent has notice.” This section provides the individual subject to an ex parte order an absolute right to be personally served with notice expressly stating what conduct on his or her part is criminal. See also
It is further determined that to insure that the respondent has knowledge, the notice served upon him should expressly include a statement informing him that a violation of the order is a class C misdemeanor and stating the maximum penalty associated therewith. This is required by the clear intent expressed by the legislature in
The Act provides sufficient direction and guidance for the judges who must apply it. The protection orders are to issue only when an “immediate and present danger of abuse to the petitioner” is found.
V.
The trial court also found the Act violates the requirements of separation and non-delegation of power under
The powers of government shall be divided into three distinct departments—the legislative, executive, and judicial—each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.
The legislative power shall be vested in a senate and house of representatives to be styled “The General Assembly of the State of Missouri.”
It is argued that although
In Rhodes v. Bell, 230 Mo. 138, 130 S.W. 465 (Mo.1910), this Court recognized that “the Legislature has confided to other branches the performance of duties which in a particular sense might be denominated legislative, which no one has ever thought or contended violated the great principle of independence between the separate departments of government.” Id. 130 S.W. at 468. The modern tendency of the courts is toward greater liberality in permitting grants of discretion to administrative officials in order to facilitate the administration of law as the complexity of government and economic conditions increases. Milgram Food Stores, Inc. v. Ketchum, 384 S.W.2d 510 (Mo.1964). The statutory vesting of some regulatory discretion has been permitted where it “relates to the administration of a police regulation and is necessary to protect the public morals, health, safety and general welfare; or where personal fitness is a factor ....” Id. at 514, quoting Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 490 (1940). These principles are equally true with respect to legislative grants of authority to the judiciary, to the extent necessary for the implementation of legitimate legislative goals. This trend is not to be interpreted as exemplifying judicial indifference to these constitutional prohibitions; rather it is the recognition that the boundaries which separate the powers and functions of the governmental branches are difficult to point out and that in some areas they may overlap. Rhodes v. Bell, supra. This Court has found unconstitutional delegations of power: See, e.g., State v. Raccagno, supra; Automobile Club of Missouri v. City of St. Louis, 334 S.W.2d 355 (Mo.1960). It has also ruled constitutional legislation which
The duty and power to define crimes and ordain punishment is exclusively vested in the Legislature. State v. Raccagno, 530 S.W.2d at 703. In State v. Raccagno, supra, a statute delegated to the Director of Revenue the power “to promulgate reasonable and necessary regulations and make the violation of a regulation the criminal offense.” Id. at 702. The statute was held unconstitutional because it “delegated the power to the director of revenue to say whether or not the failure to pay the tax authorized ... would be criminally punishable.” Id. at 703. Unlike the present case, the nonlegislative authority was there empowered to decide “whether or not a violation of any specific provision of the law would constitute a criminal offense ....” Id. at 703.
Although under the Adult Abuse Act no misdemeanor can occur until a protection order is issued, this is not analogous to defining a crime. Under
If the legislature prescribes conditions necessary for an annexation, it may delegate to the courts the power to determine whether those conditions exist and such is a proper judicial function. City of St. Joseph v. Hankinson, 312 S.W.2d at 8. If drug regulation statutes specifically limit the Division of Health authority to identifying and listing of drugs, which fall within a statutory definition, the possession of which is criminal, no unconstitutional delegation occurs. State v. Bridges, 398 S.W.2d 1 (Mo. banc 1966). The present case is analogous. Under this Act the court is only authorized to determine whether a legislatively defined right to relief exists. The power exercised by the judiciary under the Act is judicial in nature. The power to issue a restraining order is solely judicial. Cf. Rule 92. The determination of whether a litigant is entitled to relief under a statute is also a judicial function. The legislative function of designating a crime was performed by the Legislature when
VI.
The trial court held that
In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the United States Supreme Court refused to engage in “the abstract and unproductive exercise of laying the extraordinarily elastic categories of [a statute permitting “stop and
The same procedures, including those designed to protect constitutional rights, shall be applied to the respondent as those applied to any individual detained in police custody.
Procedurally it is required that when an in-home arrest occurs either a warrant or consent to enter the house be obtained or that exigent circumstances exist. These procedures are “designed to protect constitutional rights” and are to “be applied to the respondent“,
This section does not authorize unconstitutional arrests; and if such an arrest were to occur under the guise of the Act then the respondent would be entitled to the same remedy as “any individual detained in police custody.”
C.
The presumptive constitutionality of the Adult Abuse Act is not overcome by any of the attacks presented.
Accordingly, the judgment dismissing the petition in No. 62762 is reversed and the cause is remanded for further proceedings; the preliminary writ of mandamus in No. 62765 is made peremptory.
DONNELLY, C. J., and RENDLEN and MORGAN, JJ., concur.
BARDGETT, J., concurs in part in separate concurring opinion filed.
SEILER, J., concurs in separate concurring opinion of BARDGETT, J.
WELLIVER, J., dissents in separate dissenting opinion filed.
BARDGETT, Judge, concurring in part.
I concur in the result reached and in the principal opinion except for that portion upholding the constitutionality of
This is not a criminal case and the question whether the misdemeanor conviction of one for violation of a protective order could be constitutionally upheld ought, in my opinion, await that kind of case. My reser-
The statute does not make the act of entering one‘s home a crime. The only time that act becomes a criminal act is when, and if, a judge declares it to be criminal by prohibiting it in a protective order with respect to a particular person. Thus,
I believe it highly questionable whether a crime can, under our Constitution, be so personalized; nevertheless, the issue of the constitutionality of
WELLIVER, Judge, dissenting.
I respectfully dissent. I believe that the circuit judges, who prior to the principal opinion have held the Adult Abuse Act to be unconstitutional, are in a far better position to perceive the invasions of personal rights flowing from the application of this act than we who sit in these halls.
When we permit child custody, support and maintenance provisions, usually found in
The Adult Abuse Act exhibits the fullest potential for creating nine new evils for every evil it would seek by its terms to correct.