## IN THE MISSOURI COUR T OF APPEALS WESTERN DISTRICT CITY OF SLATER, MISSOURI MUNICIPAL LEAGUE, CHRISTINE CATES, BARBARA SHAEFFER and JACOB K. ALBARELLI , Appellants ,

v. STATE OF MISSOURI, OFFICE OF STATE COURTS ADMINISTRATOR, and MISSOURI SHERIFF ’ S RETIREMENT SYSTEM , Respondent s. ) ) ) ) ) ) ) ) ) ) ) ) ) ) WD 78016
F ILED : May 3, 2016

Appeal from the Circuit Court of Cole County The Honorable Jon E. Beetem , Judge Before Division Four: Alok Ahuja, C.J., Gary D. Witt, J. and John M. Torrence, Sp.J. The Appellants filed a petition seeking declaratory and injunctive relief in the circuit court. The petition challenge d the Respondents’ interpretation of § 57.955 .1 , 1 to require municipal courts to collect a $3.00 surcharge from litigants for the benefit of the sheriffs ’ retirement fund

. The Circuit Court of Cole County granted the Respondents’ motion to dismiss , on the grounds that some of the A ppellants lacked standing , and that sovereign immunity barred
any remaining clai ms. This appeal follow ed

. Because we conclude that none of the Appellants

1 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013 Cumulative Supplement, unless otherwise indicated.2

have standing to challenge the Respondents’ interpretation of § 57.955.1, we affirm the circuit court’s dismissal of the petition

. Fact ual Background Section 57.955 .1 states : Ther e shall be assessed and collected a surcharge of three dollars in all civil actions filed in the courts of this state and in all criminal cases including violation of any county ordinance or any violation of criminal or traffic laws of this state, includin g infractions, but no such surcharge shall be assessed when the costs are waived or are to be paid by the state, county or municipality or when a criminal proceeding or the defendant has been dismissed by the court. For purposes of this section, the term “county ordinance” shall not include any ordinance of the city of St. Louis. The clerk responsible for collecting court costs in civil and criminal cases, shall collect and disburse such amounts as provided by sections 488.010 to 488.020. [ 2 ] Such funds shall be payable to the sheriffs ’ retirement fund. Moneys credited to the sheriffs ’ retirement fund shall be used only for the purposes provided for in sections 57.949 to 57.997 and for no other purpose. The statute was initially enacted in 1983 , and was amended most recently in 19 9 6 . Prior to 2013, the statute had been interpreted to be inapplicable to the municipal courts. On April 17, 2013, however, the Attorney General issued an opinion concluding that “the legislature intended that the surcharge be collected in municipal courts. ” Op. Mo. Att’y Gen. 20

- 2013 (2013)

. Following that opinion, the Missouri Supreme Court issued a rev ised “Schedule for Collection of Court Costs, Fees, Miscellaneous Charges and Surcharges,” effective August 28, 2013, which
indicat ed that the $3.00 surcharge required by § 57.955.1 should be collected by municipal

courts. 3

2 A revisor’s note states that the “[o]riginal rolls contain ‘ section 514.015 ’ which was changed to effectuate the court cost bill.”

3 The Supreme Court’s August 16, 2013 o rder promulgating the schedule, to which the schedule is attached, is available here: http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/6cee3211c10ab6cd86257 bcc005b10bb?OpenDocument )3

A ppellants are the City of Slater, Christine Cates, Barb Schaffer, the Missouri Municipal League (“MML”) , and Jacob Albarelli

. Cates is the Assistant City Administrator for the City of Blue Springs, and Schaffer is the Court Clerk and Court Administrator for the Municipal Court of Jefferson City. The City, Cates, Shaffer, and MML first filed their petition challenging the applica bility of the surcharge in municipal courts on August 27, 2013. The Appellants later filed an amended peti tion naming Jacob Albar elli as an additional plaintiff

. 4 The petition n amed the State of Missouri, the Office of State Courts Administrator, the Mis souri Sheriffs ’ Retirement System, and Chris Koster in his official capacity as Attorney General , as defendants

. T he Circuit C ourt dismissed the First A mended Peti tion without prejudice, finding that the City, Cates, Schaffe r, and the MML lacked standing ; that Albar elli’s claim against the state was barred by sovereign immunity ; and that the petition stated no viable claims as to Koster or the Retirement System

. Appellants then filed a S econd A mended Petition. The Second Amended Petition sought declarato ry and injunctive relief that § 57.955 did not apply to municipal courts ; the petition also contended that interpreting the statute to apply to municipal courts would be unconstitutional under Art icle I, § 14 of the M issouri Constitution

. The Second Amended Petition named only the State and OSCA as defendant s . The Retirement System was granted leave to intervene as a defendant. The defendants, who are the Respondents in this Court, again filed a motion to dismiss , on the grounds of lack o f standing, failure to state a claim, and sovereign immunity. On August 29, 2014, the Circuit Court again dismissed the City, MML, Cates an d Schaffer for lack of standing . Although the court found

4 T he original and first amended petition also included a dditional plaintiffs Francis J. Vatterott and Mick Wilson . Vatterott and Wilson were omitted from the Second Amended Petition whose dismissal is at issue here, and they are accordingly not parties to t his appeal.4

that Albarelli had standing because he had actually paid the disputed surcharge, it found that sovereign immunity barred his claim s. The court’s judgment also found that no viable claim was

stat ed against the Retirement System. This appeal follow ed

. Appellate Jurisdiction Because the Appellants allege, in part , that it would be unconstitutional to interpret § 57.955.1 to apply to municipal courts, a question arises as to whether this appeal falls within the exclusive appellate jurisdiction of the Missouri Supreme Court under article V, § 3 of the Missouri Const itution. We conclude that the case falls within our appellate jurisdiction, based on at least two separate considerations. First, the Jurisdictional Statement of Appellants’ Brief explicitly states that “[t]his case does not involve . . . the validity of a statute . . . of this State.” This assertion in Appellants’
Jurisdictional Statement confirms that the Appellants only invoke constitutional principles to support the reading of § 57.955.1 which they advocate. This “conditional” constitutional argument does not invoke the Supreme Court’s exclusive appellate jurisdiction. To present a constitutional question for review on the ground that a statute is unconstitutional, the constitutionality of the statute must be directly challenged. To say that a statut e would be unconstitutional if construed in a certain manner does not meet the requirement. To vest appellate jurisdiction here on a constitutional issue, the attack on the constitutionality of a statute must be that whatever it means and under any constr uction of which it is susceptible, it is unconstitutional. Knight v. Calvert Fire Ins. Co. , 260 S.W.2d 673, 675 (Mo. 1953) (citations and internal quotation marks omitted); see also Mo. Prosecuting Att’ys Retirement Sys. v. Pemiscot Cnty ., 217 S.W.3d 393, 399 (Mo. App. S.D. 2007); Whitaker v. City of Springfield , 889 S.W.2d 869, 875 (Mo. App. S.D. 1994). Second, none of the parties to this appeal ask us to address the merits of Appellants’ underlying claims, whether those claims involve i ssues of statutory interpretation, or a challenge5

to the constitutionality of § 57.955.1. Instead, the parties ask us to decide only whether Appellants have standing, and whether sovereign immunity bars their claims. “ The Missouri Supreme Court

. . . doe s not have exclusive jurisdiction, and transfer to that court is not required, where it is not necessary to construe the constitution or determine the constitutionality of a statute to resolve the issues presented on appeal. ” Evans v. Empire Dist. Elec. C o. , 346 S.W.3d 313, 315 n.2 (Mo. App. W.D. 2011) (court of appeals had jurisdiction where “ this appeal involves only the correctness of the trial court's dismissal of the case on primary jurisdiction grounds, without reaching Appellants' constitutional arg uments ”); see also , e.g. , State v. Jones , 892 S.W.2d 737, 739 (Mo. App. W.D. 1994) (“ this court has jurisdiction to determine if the appellant has standing to raise a constitutional argument ”; citing State v. Ellis , 853 S.W.2d 440, 446 (Mo. App. E.D. 1993) ). For these reasons, jurisdiction of this appeal is properly vested in this Court, and we proceed to the merits of the issues Appellants raise. Standard of Review This court reviews a trial court ’ s grant of a motion to dismiss de novo. A motion to dismiss for failure to state a claim upon which relief can be granted is solely a test of the adequacy of the plaintiff's petition. All facts alleged in the petition are treated as true, and the petition is construed favorably to the plaintiff to determine whether the averments invoke substantive principles of law which entitle the plaintiff to declaratory relief. This court tests the sufficiency of a petition for a declaratory judgment by asking whether the petition entitles the plaintiff to a declaration of rights or status on the facts pleaded. The petition must set forth facts, not mere conclusions, which support the allegations and demonstrate a justiciable controversy. State ex rel. Chastain v. City of Kansas City , 289 S.W.3d 759, 763 (Mo. App. W.D. 2009) ( citations omitted). Further, “ [o] ur review of a dismissal

. . . for lack of standing is de novo. ” White v. White , 293 S.W.3d 1, 8 (Mo. App. W.D. 2009) (citation o mitted)

. “ In addition, the existence of6

sovereign immunity, and questi ons of statutory interpretation, are issues of law which we review de novo .” Wyman v. M

o. Dep ’t of Mental Health, 376 S.W.3d 16, 18 (Mo. App. W.D. 2012)

.

Analysis Appellants challenge the trial court’s conclusions concerning their standing to sue , and

con cerning the applicability of sovereign immunity to bar their requests for declaratory and injunctive relief. Because we find the standing issue determinative, we address only that issue. If a plaintiff lacks standing to sue, this presents an issue of justiciability which implicates the circuit court’s subject

- matter jurisdiction. Matter of Adoption of E.N.C. , 458 S.W.3d 387, 397 (Mo. App. E.D. 2014). “Courts have a duty to determine if a party has standing prior to addressing the substantive issues of the case. For this reason, standing cannot be waived.” CACH, LLC v. Askew , 358 S.W.3d 58, 61 (Mo. banc 2012) (citation omitted). If a party is without standing to bring a particular claim, a court shall dismiss the claim because the court lacks the authority to decide the merits of the claim. This state requires that plaintiffs have a legally protectable interest in the litigation so as to be directly and adversely affected by its outcome. A legally protectable interest exists if the plaintiff is directly and adversely affected by the action in question or if the plaintiff's interest is conferred by statute. Missouri requires that a complainant be within the zone of interests to be protect ed or regulated by the statute or constitutional guarantee in question to bring an action thereunder. A plaintiff must show a personal stake in the outcome of the controversy and allege some threatened or actual injury resulting from the putatively illega l action. Weber v. St. Louis Cnty

. , 342 S.W.3d 318, 323 (Mo. banc 2011) (citations and internal quotation marks omitted). Appellants Cates and Schaffer assert that they have standing both as taxpayers , and because the application of § 57.955 .1 to municipal courts directly affects them in the performance of their official responsibilities

. The City likewise alleges that the current implementation § 57.955 has a direct , harmful impact on it , while the MML argues it has7

standing on behalf of its municipal mem bers. Finally, although the trial court found that the petition was sufficient to establish Albarelli’s standing because it alleged that he had actually paid the surcharge , on appeal the Respondents a rgu e that decision was in error. For the reasons stated below, we find the allegations in the Second Amended Pe tition ins ufficient to confer standing on any of the A ppellants.
I. Cates and Schaffer argue they have standing as taxpayers because they “allege in their
Second Amended Petition that the municipal courts throughout the State of Missouri are presently being forced to use taxpayer resources to send funds to the Sheriff’s Retirement Plan pursuant to § 57.955 R SMo

. ”
To establish taxpayer standing, “ a taxpayer must demonstrate either: (1) a direct expenditure of funds generated through taxation, (2) an increased levy in taxes, or (3) a pecuniary loss attributable to the challenged transaction of a municipality.” State ex rel Nixon v. Am. Tobacco Co., Inc. , 34 S.W.3d 122, 132 (Mo. banc 2 000) . Here, Cates and Schaffer argue that the Second Amended P etition adequately alleges facts demonstrating a “direct expenditure”
of state funds. Manzara v. State , 343 S.W.3d 656 (Mo. banc 2011), explains that a “direct expenditure”
of funds means “a sum paid out, without any intervening agency or step, of money or other liquid assets that come into existence through the means by which the state obtains the revenue required for its activities.” Id. at 660. As we have previously stated, “in order t o establish standing under the first option, a Missouri taxpayer needs to show only that his or her taxes went or will go to public funds that have or will be expended due to the challenged action.” Querry v.
State H wy. & Transp. Comm'n , 60 S.W.3d 630, 63 4 (Mo. App. W.D. 2001) (citing Nat'l Solid Waste Mgmt. Assoc. v. Dir. of Dep ’ t of Natural Res., 964 S.W.2d 818, 819 (Mo. banc 1998)).8

N ot all uses of governmental revenue are “ direct ” expenditures under th ese standard s . A series of cases holds that “gener al operating expenses which [an agency ] incurs regardless” of the allegedly illegal activity are not “direct” expenditures, and are insufficient to establish taxpayer sta nding

. John T. Finley, Inc. v. M o. Health Facils

. Review Comm. , 904 S.W.2d 1, 3 (Mo. App. W.D. 1995)

. Thus, “ salaries for staff time of [agency] employees, correspondence and telephone calls ” used to engage in the allegedly unlawful activity are “not the type of expenditure of public funds which would give standing, as they are general operating expenses which would be incurred whether or not the challenged transaction took place.” Ours v. City of Rolla , 965 S.W.2d 343, 346 (Mo. App. S.D. 1998) ( citing Mid

– Am

. Georgian Gardens, Inc. v.
M o. Health Facils

. Review Comm

. , 908 S.W.2d 715, 718 (Mo. App. W.D. 1995) ); see also , e.g. , Columbia Sussex Corp. v. M o. Gaming Comm'n , 197 S.W.3d 137, 145 (Mo. App. W.D. 2006) ; Cmty

. Health Care Ctr

. of Lemay v. M o. Health Facil s . Review Comm

. , 92 S.W.3d 232 (Mo. App. W.D. 2002). In this case, Cates and Schaffer have failed to allege facts to show that they have standing, as taxpayers, to challeng e a “direct expenditure of funds generated through taxation .”
T he Second Amended Petition does not explicitly allege that Cates and Schaffer are Missouri taxpayers (although it does allege the Missouri counties in which they reside). More importantly, the petition fails to allege that compliance with the requirements of § 57.955.1 will require expenditures , directly caused by the allegedly unlawful surcharge, which are separate and apart from the general operating expenses that municipal courts w ould incur regardless

. Although the petition alleges that municipal cour t employees must “administer, collect, and transmit” the surcharge , there are no allegations that this will require greater expenditures of tax money than would otherwise be required

. Significantly, the petition itself alleges that “[t]here9

are a number o f [other] surcharges . . . which municipal courts must by statutory mandate collect

. ” T he fact that municipal court employees already collect, account for, and remit other surcharges suggests that the incremental cost of administering the surcharge requir ed by § 57.955 .1 will be difficult to isolate , and may be limited or non - existent . In these circumstances, administration of the surcharge Cates and Schaffer challenge does not involve a “direct expenditure” of tax

- generated funds sufficient to establish taxpayer standing.
II. The City , Cates and Schaffer claim they have standing in their positions as a Missouri municipality, Assistant City Administrator , and Court Clerk and Court A dministrator for a municipal court , respectively, “due to the direct impact of § 57.955 being implemented on municip al courts.” For reasons similar to those stated in § I, we disagree. We first note that the “[p] ublic policy favoring judicial review of administrative decisions at the request of those aggrieved is firmly establishe d in this state and extends to political subdivisions. ” State ex rel. Sch. Dist. of City of Independence v. Jones , 653 S.W.2d 178, 189 (Mo. banc 1983) ( citing St. Joseph Lead Co. v. State Tax Comm ’n , 352 S.W.2d 656, 659

– 60 (Mo. 1961) )

. Indeed, “[a] rgumen ts

. . . t hat local government units are ‘ mere arms of the state ’ with no independent right to attack statutes that affect them

– have been expressly rejected in favor of a standing doctrine concerned primarily with sufficient c ontroversy between the parties regarding matters which directly affect them. ” Arsenal Credit Union v. Giles , 715 S.W.2d 918, 921 (Mo. banc 1986) (citation s and internal quotation marks omitted).
H ere, however, neither the City, nor Cates or Schaffer in their official capacities, have alleged any direct impact resulting from the rule. They have not alleged that they will be required to pay the surcharge (nor could they, since § 57.955.1 explicitly exempts municipalities). They have not alleged that t hey are entitled to receive any part of the surcharge,10

or that the surcharge diverts money away from their municipalities. Instead , they have merely alleged that they would be required to collect and distribute a particular surcharge alon g with other cour t costs. This situation is wholly unlike the circumstances in cases in which a municipality has been found to have standing to challenge allegedly unlawful action of another governmental entity. See , e.g. , Ste. Genevieve Sch. Dist. R II v. Bd. of Aldermen of City of Ste.
Genevieve , 66 S.W.3d 6, 10 (Mo. banc 2002) (school district argued that amendment to redevelopment plan required approval of Tax Increment Financing (“TIF”) commission ; district had standing because it was given statutory authority to appoint member s to the TIF commission, and approval of the redevelopment plan “would unlawfully deprive the district of tax revenue”);
Jones , 653 S.W.2d at 189 (political subdivisions allege an “unlawful deprivation of their statutorily

- mandated share of state school funds”); St. Joseph Lead , 352 S.W.2d at 661 (county challenges valuation of property subject to tax levy by county)

. In this case, n o direct injury outside of the regular function ing of court personnel has been alleged ; the claimed injury falls short of the direct impact necessary to confer standing. The position of the City, Cates and Schaffer is notably similar to the position of the County Commission in State ex rel. Board of Health Center Trustees of Clay County v. County
Comm issio n of Clay County , 896 S.W.2d 627 (Mo. banc 1995). In that case, the Clay County Health Center was given independent taxing authority by statute. The Health Center ’s Board of Trustees authorized a certain tax levy, and transmitted information on the approved l evy to the County Commission for billing and collection. The County Commission instead a uthoriz ed a lesser levy, and argued that the lev y approved by the Health Center’s Board of Trustees was unlawful. The Supreme Court held that the County Commission did not have standing to challenge the lawfulness of the Health Center’s approved levy, with these observations:11

The Commission’s role for independent taxing authorities such as the Board is the ministerial duty of accumulating the levies assessed by such political subdivisions and certifying them to the collector for inclusion on the tax bills. Its role is not to act as a judge of the constitutionality of the tax. Id. at 631 (cited with approval in King

- Willman v. Webster Groves Sch. Dist. , 361 S.W.3d 414 , 417 (Mo. banc 2011)). Here, the City, Cates and Schaffer are in the same “ministerial” or administrative role with respect to the collection and remittance of the surcharge : they did not establish the surcharge, they do not pay the surcharge, they are n ot the surcharge ’s ultimate recipients , and the surcharge does not direct money away from their coffers

. Given th e limited “ministerial” or administrative function they serve , their role (as in Board of Health Center
Trustees ,) “ is not to act as a judge o f the [legality] of the tax,” and they do not have standing to challenge the surcharge. The City , Cates and Schaffer also argue that “the collection of unlawful costs exposes the [Appellants] to litigation and judgments.” However, the y do not allege with any specificity that such lawsuits have been threatened or filed, or on what grounds such lawsuits might be filed. Appellants’ argument is speculative at best, and “[w] e see no indication that mere speculation can confer standing[.]” State ex rel. Parson s v. Bd. of Police Com m 'rs of Kansas City , 245 S.W.3d 851, 854 (Mo. App. W.D. 2007)

. Thus, we find that the City, Cates, and Schaffer have failed to allege a “sufficient controversy between the parties regarding matters which directly affect them” to confer standing.
III. For the same reasons that the City would not have standing, the Missouri Municipal League ’ s claim of associational standing must also fail. An entity has associational standing if: 1) its members would otherwise have standing to brin g suit in their own right; 2) the interests it seeks to protect are germane to the organization's purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.12

M o. Bankers Ass'n v. Dir . of M o. Div. of Credit Unions , 126 S.W.3d 360, 363 (Mo. banc 2003) ( citing M o. Health Care Ass'n v. Att ’y Gen

. of the State of M o. , 953 S.W.2d 617, 620 (Mo. banc 1997) )

. Here, MML fails to meet the first element of associational standing. In the S econd
A mended P etition, MML argued that that the municipalities they represent “have a legally protectable interest at stake and will be directly affected by the outcome of this action.” As we have explained in § II above, however, the petition fails to allege f acts sufficient to confer standing on Missouri municipalit ies . MML’s associational standing claim accordingly fails.
IV. Finally, Appellant Albar elli asserts that he has standing to challenge the surcharge because he paid the court costs in question in conne ction with a traffic ticket he received in the
C ity of Blue Springs. Although the trial court found that this conferred standing on Albar elli, Respondents argue that Albarelli too lacks standing

. “A party may have standing to bring some c laims but not others

. ” Weber v. St. Louis Cnty

. , 342 S.W.3d 318, 323 n.3 (Mo. banc 2011) (citations omitted) . With this principle in mind , we conclude that Albar elli lacks standing to request declaratory or prospective injunctive relief concerning the surcharge

. To es tablish standing, Albarelli was required to demonstrate that the relief he seeks would redress the injury he has allegedly suffered.

Litigation of a claim requires plaintiffs to show that they have standing by demonstrating a personal interest in the litig ation arising from a threatened or actual injury. In a declaratory judgment, the criterion for standing is whether the plaintiff has a legally protectable interest at stake. A legally protectable interest exists if the plaintiff is directly and adversely affected by the action in question or if the plaintiff's interest is conferred by statute. Although standing can be based on an interest that is attenuated, slight or remote, in all cases there must be a showing of an actual personal interest or stake in the outcome of the litigation. The requirement of a personal stake in the outcome of the litigation means that the13

remedy sought must relate to the alleged injury. If the plaintiff's grounds for relief and remedy sought cannot alleviate the alleged inju ry, then, by necessity, the litigation cannot vindicate the plaintiff's alleged personal interest or stake in the outcome of the litigation. If that is the case, then the plaintiff has no standing to bring the claims he or she alleges. St. Louis Cnty

. v. State , 424 S.W.3d 450, 453 (Mo. banc 2014) ( citations and internal quotation mark s omitted). Here, the injury claimed

– Albarelli’s prior payment of the surcharge

– cannot be remedied by the relief he request s . The Second Amended Petition requests a declaration that imposition of the surcharge in municipal court cases is unlawful, and prospective injunctive relief prohibiting the future collection of the surcharge in municipal courts. None of this relief would remedy the injury Albar elli claims to ha ve suffered

– his prior payment of the allegedly unlawful charge

. The petition does not seek a refund to Albarelli of the amount he paid, or seek damages for the allegedly improper collection of the surcharge from Albarelli. 5 Albar elli has not argued tha t he will again be subject to the surcharge at some point in the future . Therefore, we see nothing in the Second Amended Petition that would be sufficient to confer standing on Albar elli , given the relief the petition request s . 6
Conclusion We affirm the trial court’s dismissal of the S econd A mended P etition

.

5 Among other things, t he Second Amended P etition does pray for a declaration that the Office of State Courts Administrator be directed to rescind the surcharge, and

– “should a court receive a refund of inappropriately collected amounts”

– “ to provide a mechanism for refunding overpayments to individual defendants

. ” The petition does not , however, seek relief which would actually require that the surcharge be refunded by the Retirement System to the municipal courts that collected it, and th at those amounts thereafter be refunded directly to the persons who paid it

.

6 The claims made in this case can be contrasted with the claims made in cases challenging municipal traffic citations issued through the use of “red

- light cameras,” where the pl aintiffs who had paid a fine sought a refund of the fine and/or compensatory damages. See Damon v. City of Kansas City , 419 S.W.3d 162 , 192 (Mo. App. W.D. 2013); Unverferth v. City of Florissant , 419 S.W.3d 76 , 85 (Mo. App. E.D. 2013) (overruled on other grounds by City of Moline Acres v. Brennan , 470 S.W.3d 367, 374 (Mo. banc 2015))

. Albarelli does not seek similar relief here.14 ____________________________________ Alok Ahuja, Chief Judge All c oncur.