IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT JESSICA A. GOODMAN, ) SALINE COUNTY ASSESSOR, ) ) Appellant, ) ) v. ) WD86126 ) SALINE COUNTY COMMISSION, ) Filed: April 2, 2024 KILE GUTHREY, JR., PRESIDING ) COMMISSIONER, STEPHANIE ) GOODEN, NORTHERN ) COMMISSIONER, CHARLES ) MONTE FENNER, SOUTHERN ) COMMISSIONER, and CINDY ) SIMS, SALINE COUNTY ) COLLECTOR, ) ) Respondents. )
Appeal from the Circuit Court of Saline County The Honorable Kelly Ann Rose, Judge
Before Division One: Alok Ahuja, P.J., and Cynthia L. Martin and Thomas N. Chapman, JJ. This case involves two disputes between the Assessor of Saline County, on
the one hand, and the County Commission and County Collector, on the other:
(1) a dispute over the percentage of ad valorem property tax collections which the County is required to deposit into an assessment fund to finance the operations
of the Assessor’s office; and (2) a dispute concerning the legality of certain compensation the Assessor intended to pay to members of her staff. The circuit court dismissed the Assessor’s petition, which sought declaratory and injunctive
relief. The Assessor appeals.
Because this appeal involves the constitutional validity of a Missouri statute, it falls within the Missouri Supreme Court’s exclusive appellate
jurisdiction under Article V, § 3 of the Missouri Constitution. We accordingly
order that the appeal be transferred to the Missouri Supreme Court for decision.
Factual Background On October 25, 2022, Jessica Goodman, in her capacity as the elected
Saline County Assessor, filed a petition in the Circuit Court of Saline County against the Saline County Commission; the three County Commissioners at that
time (Kile Guthrey, Jr., Charles Monte Fenner, and Stephanie Gooden); and
Cindi Sims, the Saline County Collector. Since the filing of the Assessor’s
petition, Becky Plattner has been elected as a County Commissioner in place of
Kile Guthrey, Jr., and has been substituted for him as a defendant. We refer to
the County Commission and the Commissioners collectively as “the
Commission,” and refer to all defendants collectively as “the County.”
In Count I, the Assessor’s petition alleged that on June 10, 2022, she closed
her office for a day because the year’s tax valuations had been completed. The petition alleged that, “[a]s a benefit to [sic] the work done by her employees, and
an agreement duly reached between each employee and the Assessor, the
Assessor declared the day off would be compensated.” The petition alleged, however, that the Commission had refused to authorize payment of
compensation to the Assessor’s employees for June 10. The petition contended
2 that, by denying this compensation, the Commission had acted in excess of its authority, and in derogation of the Assessor’s authority to determine how the
funds appropriated for her office are allocated. (Count I also included an
additional dispute about employee pay increases that the parties agree is now moot).
In Count II, the Assessor’s petition alleged that Saline County is a fourth-
class county with an obligation under § 137.7201 to deposit one percent of all ad
valorem property tax collections into the County’s assessment fund. Despite that
mandatory obligation, the petition alleged that the Commission has only been
authorizing the deposit of one-half of one percent of property tax collections into the assessment fund, thereby significantly underfunding the Assessor’s
operations.
Count III contended, in the alternative, that the court should declare that
Saline County is properly classified as a third-class county. The Assessor alleged
that, as a fourth-class county, Saline County was “operat[ing] under the laws of
this state applying to [counties of] the second classification.” § 48.020.1. The
petition listed the certified total assessed valuations of Saline County property for
2016 through 2022. The Assessor alleged that, for more than five years, the total
assessed valuation of property in the County had fallen below the monetary threshold required for it to qualify as a second-class county. The petition alleged
that, “[a]s Saline County has had five (5) consecutive years of assessed valuation
placing it as a third class county, Section 48.030 mandates Saline County be
1 Statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated by the 2023 Cumulative Supplement.
3 classified as a county of the third class beginning with the 2021 fiscal year or after the general election.”
In Count IV, the Assessor requested a temporary restraining order against
the Collector, requiring her to deposit one percent of the County’s property tax collections in the assessment fund. Count V of the Assessor’s petition prayed for
an award of attorney’s fees against the Commission. To justify a fee award, the
Assessor contended that the Commission’s failure to comply with its ministerial
duties to implement the Assessor’s employee compensation decisions, and to
deposit required funds in the assessment fund, were “arbitrary, capricious, or in
bad faith.” The petition alleged that the Commission’s “budgetary decisions were consciously designed to hamstring the [Assessor] and [were] being used as
retribution for the [Assessor] speaking out against” the Commission.
The Commission moved to dismiss the Assessor’s petition. The
Commission argued that the County Commission and its members were not
proper parties-defendant with respect to the Assessor’s claims concerning
payments to the assessment fund, and that the extra vacation day authorized by
the Assessor was an unlawful bonus payment to Assessor’s office employees for
work previously performed.
In response to the Assessor’s claim that Saline County had been reclassified as a third-class county under § 48.030, the Commission argued that the County
was exempted from this reclassification process by statute. The Commission
noted that, under § 48.020.1, fourth-class counties are defined as follows:
Classification 4. All counties which have attained the second classification prior to August 13, 1988, and which would otherwise return to the third classification after August 13, 1988, because of changes in assessed valuation shall remain a county in the second
4 classification and shall operate under the laws of this state applying to the second classification. The Commission argued that “RSMo § 48.020(1) is explicit in that changes in
assessed valuation are immaterial to a change in classification for Fourth Class
counties, particularly for those counties which would return to the third classification as the Assessor is seeking.” The Collector filed a separate motion to
dismiss, which similarly argued that Saline County was not subject to
reclassification pursuant to § 48.030, because under the definition of fourth-class
counties in § 48.020.1, “changes in assessed valuation are immaterial.”
In her opposition to the motions to dismiss, the Assessor argued, among
other things, that it would be unconstitutional to exempt Saline County from the assessed-valuation-based reclassification process specified in § 48.030, as the
Commission and the Collector advocated:
[T]he interpretation offered by the Defendants would run afoul of Section 8, Article VI of the Missouri Constitution. That section requires that counties be segregated into classes that have systematic relations founded upon common properties or characters. See Chaffin v. Christian County, 359 S.W.2d 730, 734 (Mo. banc 1962); Article VI, § 8 . . . . The legislature, following this constitutional mandate, determined the classes should be separated by assessed valuation, as shown in Section 48.020. However, the interpretation set forth by the Defendants would state the common classification of current assessed valuation is being used for three classes of counties, while the classification status as of August 13, 1988, is being used for one set of counties. As such, this would be unconstitutional and similar to the voting process struck down in Chaffin. See id. In a footnote, the Assessor also argued that, to the extent the defendants’
arguments depended on a 1995 amendment to Article VI, § 8, the 1995
amendment was itself unconstitutional, because it had been adopted in violation of the single-subject rule found in Article XII, § 2(b) of the Missouri Constitution.
5 On March 8, 2023, the circuit court issued its judgment dismissing all claims in the Assessor’s petition for failure to state a claim upon which relief can
be granted. As to Count I, the court found that the Assessor’s petition alleged
facts which established that she gave her employees an improper bonus under the Missouri Constitution; the court also concluded that the Commission’s authority
to determine the Assessor’s budget authorized it to deny workers additional
compensation even if that compensation were otherwise lawful. The court
dismissed Counts II-IV on multiple grounds. The court concluded that it lacked
authority to reclassify Saline County, and that the Assessor had failed to allege
the assessed value of the property in Saline County as of August 13, 1988, which the court deemed necessary to resolve the Assessor’s claims.
The Assessor appeals.
Discussion “Before reaching the merits of a case on appeal, an appellate court must
first determine its jurisdiction to do so.” Smith v. Smith, 682 S.W.3d 126, 133
(Mo. App. W.D. 2024) (citing Johnson v. Johnson, 668 S.W.3d 316, 322 (Mo.
App. W.D. 2023)); see also, e.g., In re Adoption of K.L.C.B., 674 S.W.3d 1, 5 (Mo.
App. W.D. 2023) (citing State ex rel. Koster v. ConocoPhillips Co., 493 S.W.3d
397, 399 (Mo. 2016)). This case presents two jurisdictional issues. While one is easily dispensed with, the other requires that this appeal be transferred to the
Missouri Supreme Court, where appellate jurisdiction properly lies.
I. Under Rule 67.03, “[a]ny involuntary dismissal shall be without prejudice
unless the court in its order for dismissal shall otherwise specify.” In this case,
6 the circuit court’s judgment does not specify that its dismissal would be with prejudice, and it is accordingly presumed to have been entered without prejudice.
The fact that the circuit court dismissed the Assessor’s petition without
prejudice “raises a question of whether the judgment is final and appealable,” because the Missouri Supreme Court “occasionally has referred to a ‘general rule
that a dismissal without prejudice is not a final judgment and, therefore, is not
appealable.’” Naylor Sr. Citizens Housing, LP v. Side Constr. Co., 423 S.W.3d
238, 242 (Mo. 2014) (citation omitted). Naylor noted, however, that “[i]t is
unclear to what extent, if any, this ‘general rule’ ever was followed”; it observed
that “[o]ver time, . . . exceptions seemed to have swallowed all or nearly all of whatever rule once might have existed.” Id. at 243. In particular, the Supreme
Court has held that, “[w]hen the party elects not to plead further and stands on
the original pleadings, the dismissal without prejudice is considered a final and
appealable judgment.” Mayes v. St. Luke’s Hosp., 430 S.W.3d 260, 265 (Mo.
2014) (citing Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506
(Mo. 1991)); see also, e.g., Dickemann v. Costco Wholesale Corp., 550 S.W.3d 65,
67 n.2 (Mo. 2018); Dunn v. Precythe, 557 S.W.3d 454, 456 n.5 (Mo. App. W.D.
2018).
In this case, the Assessor has chosen to stand on her petition and appeal the circuit court’s dismissal order. The judgment is accordingly final and
appealable.
7 II. Although the judgment in this case may be appealable, we conclude that it
is not appealable to this Court. Instead, this appeal falls within the Missouri Supreme Court’s exclusive jurisdiction.
Section 48.020.1 establishes four classes of counties in Missouri. As noted
above, the fourth class, in which Saline County falls, is defined as follows:
Classification 4. All counties which have attained the second classification prior to August 13, 1988, and which would otherwise return to the third classification after August 13, 1988, because of changes in assessed valuation shall remain a county in the second classification and shall operate under the laws of this state applying to the second classification. Id. The other three classes of counties, Classifications 1, 2 and 3, are defined based on the aggregate assessed valuation of the real and personal property in the
county. Id.
Section 48.030.1 provides that a county’s classification may change if “the
assessed valuation of the county is such as to place it in . . . [an]other class for five
successive years.” In her petition, the Assessor contended in Count III that Saline
County had been reclassified as a third-class county by operation of § 48.030,
because the assessed valuation of property in the County had fallen below the
threshold for second-class counties for more than five consecutive years.
In their motions to dismiss, the Commission and the Collector argued that,
based on the definition of fourth-class counties in § 48.020.1, those counties are
exempt from the assessed-valuation-based reclassification process specified in
§ 48.030. In essence, they contended that fourth-class counties like Saline County have to be treated as second-class counties in perpetuity, without regard
to any fluctuations in the assessed valuation of property in those counties.
8 The Assessor argued in the circuit court, and argues on appeal, that if the County’s reading of § 48.020.1 is correct, and if fourth-class counties are wholly
exempt from the assessed-value-based classification scheme applicable to all
other counties, then the definition of fourth-class counties in § 48.020.1 is unconstitutional. The Assessor argues that the County’s argument presents a
constitutional problem because it would “create two different criteria for
classifying counties: the first [assessed-valuation-based] criterion for first
through third class counties and another criterion for fourth class counties [based
on pre-1988 classification as a second-class county].”
The Assessor’s constitutional challenge to § 48.020.1 (if that section is read as the defendants suggest) triggers the Missouri Supreme Court’s exclusive
appellate jurisdiction. Under Article V, § 3 of the Missouri Constitution, the
Missouri Supreme Court has “exclusive appellate jurisdiction in all cases
involving the validity of a . . . statute . . . of this state.” “[T]he Court’s ‘exclusive
appellate jurisdiction is invoked when a party asserts that a state statute directly
violates the constitution either facially or as applied.’” Accident Fund Ins. Co. v.
Casey, 536 S.W.3d 360, 364 (Mo. App. W.D. 2017) (quoting McNeal v. McNeal-
Sydnor, 472 S.W.3d 194, 195 (Mo. 2015)). This includes where an individual
raises arguments that “necessarily attack the validity of provisions of [the statute] itself.” Casey, 536 S.W.3d at 364. If any of the issues in a case raise questions of
constitutional validity, the Supreme Court has jurisdiction over the entire case,
not just the discrete constitutional question. Lester v. Sayles, 850 S.W.2d 858, 861 (Mo. 1993).
9 The Assessor only challenges the constitutionality of § 48.020.1’s definition of fourth-class counties if the Court were to adopt the County’s interpretation
(which reads that definition to exempt fourth-class counties perpetually from any
assessed-valuation-based reclassification). Although the Assessor’s constitutional challenge is contingent on a particular interpretation of § 48.020.1,
it nevertheless triggers the Supreme Court’s jurisdiction. In Boeving v. Kander,
496 S.W.3d 498 (Mo. 2016), opponents of an initiative petition filed suit,
contending that the signatures collected by the initiative’s proponents were
invalid, and that the initiative accordingly should not be certified to appear on the
ballot. In response, the initiative proponents argued that nothing in chapter 116, RSMo, required the rejection of the signatures they had collected. Proponents
also argued, in the alternative, that if chapter 116 were interpreted to invalidate
their signatures, then the relevant statutes would be unconstitutional. Despite
the contingent, alternative nature of the proponents’ constitutional argument in
Boeving, the Supreme Court held that it triggered that Court’s exclusive appellate
jurisdiction. The Court explained:
Opponents did not assert any claims in the trial court that, on appeal, fall within this Court's exclusive jurisdiction, and the Secretary [of State] did not raise any such claims in defending Opponents' challenges. Proponents, however, did raise such a claim. They argued that if – but only if – the Opponents are correct (i.e., that one or more statutory provisions in chapter 116 require the Secretary not to count the signatures Proponents had gathered and submitted), then whichever provisions in chapter 116 mandate such a result are unenforceable because they are an unconstitutional infringement of Proponents' right to propose constitutional amendments by initiative petition. The trial court never reached Proponents' fallback, constitutional claim because it determined that chapter 116 does not
10 contain any statutory provisions requiring the Secretary to reject the signatures gathered and submitted by Proponents. By the same token, the court of appeals may well have affirmed – and this Court does affirm – the trial court's judgment solely as a matter of statutory construction without reaching Proponents' alternative, constitutional claim. But, “[e]xclusive appellate jurisdiction of a case cannot depend upon how certain issues of that case are decided, with appellate jurisdiction in this court if decided one way but jurisdiction in the court of appeals if decided the other way.” Instead, where any party properly raises and preserves in the trial court a real and substantial (as opposed to merely colorable) claim that a statute is unconstitutional, this Court has exclusive appellate jurisdiction over any appeal in which that claim may need to be resolved. . . .
Here, if the appellate court agreed with Opponents' claim that – properly construed – one or more of sections 116.190.4, 116.180, and 116.120.1 require the Secretary to reject the signatures submitted by Proponents, then that court necessarily would have to address Proponents' real and substantial claim that these statutes (so construed) are unconstitutional on a claim Proponents properly raised and preserved in the trial court. As a result of that possibility, exclusive appellate jurisdiction over Opponents' appeal rests with this Court. The fact that this Court does not need to reach the merits of Proponents' constitutional claim in order to resolve Opponents' appeal does not change the analysis or give the court of appeals appellate jurisdiction. Boeving v. Kander, 496 S.W.3d 498, 503-04 (Mo. 2016) (citations omitted).
We recognize that, in Ritter v. Ashcroft, 561 S.W.3d 74, 85 (Mo. App. W.D.
2018), and in City of Slater v. State, 494 S.W.3d 580, 585 (Mo. App. W.D. 2016), this Court suggested that contingent constitutional arguments (like those raised
in Boeving, and in this case) were insufficient to invoke the Supreme Court’s
exclusive appellate jurisdiction. The statements in Ritter and City of Slater were not necessary to the jurisdictional holdings in either case. Nevertheless, to the
extent the descriptions of the Supreme Court’s exclusive appellate jurisdiction in
11 Ritter and City of Slater are inconsistent with Boeving, they should no longer be followed. See Mo. Const. Art. V, § 2.2
There are two exceptions to the Supreme Court’s exclusive jurisdiction over
a constitutional challenge to a statute: (1) if the constitutional claim was not properly preserved for review; or (2) if the claim is “merely colorable” rather than
“real and substantial.” See, e.g., Butala v. Curators of Univ. of Mo., 620 S.W.3d
89, 92 n.2 (Mo. 2021); S.A.B. v. J.L.R., 675 S.W.3d 245, 254-55 & n.3 (Mo. App.
E.D. 2023); Donaldson v. Mo. State Bd. of Registration for Healing Arts, 623
S.W.3d 152, 156 (Mo. App. W.D. 2020) (quoting McNeal v. McNeal-Sydnor, 472
S.W.3d 194, 195 (Mo. 2015)). In orderly to properly raise a constitutional challenge, a party must:
(1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to be have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review. Mayes v. Saint Luke's Hosp., 430 S.W.3d 260, 266 (Mo. 2014).
The County argues that the Assessor failed to raise her constitutional
challenge at the first available opportunity, since she only raised the constitutional issue in response to the defendants’ motions to dismiss, rather
than in her petition. We disagree. A constitutional issue is timely when it is
“made when the occasion for the desired ruling first appears.” G.B. v. Crossroads
2 Because this opinion refuses to follow statements made in this Court’s prior opinions in Ritter and City of Slater, the opinion has been reviewed and approved by order of the Court en banc. See S. Ct. Operating Rule 22.01; W.D. Special Rule 31.
12 Acad., 618 S.W.3d 581, 593 (Mo. App. W.D. 2020) (quoting Mayes, 430 S.W.3d at 267).
In this case, Count III of the Assessor’s petition properly and fully asserted
her affirmative claim for relief, without reference to any constitutional principles. The Assessor contended that, as a fourth-class county, § 48.020.1 mandated that
Saline County “shall operate under the laws of this state applying to the second
classification.” The Assessor’s petition pointed out that one of the laws applicable
to second-class counties is § 48.030, which provides that counties shall be
reclassified where the county’s assessed property valuation falls within the
valuation range of a different classification for five successive years. The Assessor then alleged that the County had been reclassified as a third-class county,
because its assessed valuation had fallen below the valuation required of a
second-class county for a successive five-year period. The affirmative claim for
relief in Count III of the Assessor’s petition required no reference to the Missouri
Constitution.
The constitutional issue only arose when the County argued that the
definition of fourth-class counties in § 48.020.1 had the effect of permanently
treating those counties as second-class counties, with no possibility of a change to
that classification, whatever the counties’ assessed property valuation. In response, the Assessor asserted that such a reading of § 48.020.1 would violate
Article VI, § 8 of the Missouri Constitution. The Assessor’s contention that it
would be unconstitutional to exempt class-four counties from § 48.030’s reclassification process was timely raised, since the Assessor asserted her
constitutional challenge as soon as the County claimed an exemption.
13 The Supreme Court has recognized that “‘there can be no fixed rule as to when or how or at what stage in the proceedings the [constitutional] question
should be raised in each case.’” Dieser v. St. Anthony’s Med. Ctr., 498 S.W.3d
419, 428 (Mo. 2016) (quoting Hohlstein v. St. Louis Roofing Co., 42 S.W.2d 573, 578 (Mo. 1931)). In the circumstances of this case, the Assessor’s responsive,
contingent constitutional argument was raised at the first opportunity. The
purpose of requiring constitutional issues to be raised at the first opportunity is
to “prevent surprise to the opposing party and accord the trial court an
opportunity to fairly identify and rule on the issue.” Dieser, 498 S.W.3d at 429
(citations omitted). The Assessor’s assertion of the constitutional claim in her response to the defendants’ motions to dismiss satisfied this purpose, since the
parties were able to brief and argue the issue before the circuit court’s entry of its
dispositive ruling.
The County also argues that the Assessor waived any constitutional claim
at the hearing on the defendants’ motions to dismiss. We once again disagree.
The following colloquy occurred between the circuit court and the Assessor’s
counsel at the motion hearing:
[Assessor’s Counsel]: . . . And so we believe, as the plaintiffs, that this Classification 4 can be interpreted in such a way that this shall language that it remains a second class can be constitutional. THE COURT: Can be what?
[Assessor’s Counsel]: Constitutional. It’s – we’re not saying that the law is unconstitutional on its face. We haven’t pled that. What we’re saying is –
THE COURT: That’s kind of what it sounded like to me, though.
14 [Assessor’s Counsel]: Well, so that’s one argument, but what we pled and what we’re arguing is that this can be interpreted differently and that is that on August 13, 1988, the clock essentially reset. . . . So what it looks like to me what they’re trying to do, Your Honor, is the legislature was saying, “We’re going to reset that clock. As of August 13, 1988, we’re going to reset it. You’re not going to be reduced because of ad valorem taxes as of that date. But afterwards, if five years later the rest of the statutes apply to you, then you should move down to third class. You’re not going to be permanently fixed as second class.” And such a reading would be constitutional and such a reading would allow for all the statutes to be upheld and nothing be found unconstitutional, Your Honor. (Emphasis added.)
The County seizes on the first emphasized statement by the Assessor’s counsel (“we’re not saying that the law is unconstitutional on its face”) to contend
that the Assessor thereby abandoned the constitutional arguments made in her
written responses to the motions to dismiss. Read in context, however, the oral
argument by the Assessor’s counsel is fully consistent with the Assessor’s written
submissions to the circuit court, and to this Court: that under her reading of the
relevant statutes, Saline County is subject to reclassification under § 48.030, and
no constitutional issue arises; but if the County’s position were to be adopted, it
would render § 48.020.1 unconstitutional.
We also conclude that the Assessor’s constitutional claim is real and substantial, not merely colorable. To determine if a claim is real and substantial,
we ask if it “involves fair doubt and reasonable room for disagreement,” rather
than being “so legally or factually insubstantial as to be plainly without merit[.]” Donaldson v. Mo. State Bd. of Registration for Healing Arts, 623 S.W.3d 152,
156 (Mo. App. W.D. 2020) (cleaned up). “‘In the context of the “not merely
15 colorable” test, the word “colorable” means feigned, fictitious or counterfeit, rather than plausible.’” Dieser, 498 S.W.3d at 429 (quoting Rodriguez v. Suzuki
Motor Corp., 996 S.W.2d 47, 52 (Mo. 1999)).
The Assessor’s constitutional argument relies on Article VI, § 8 of the Missouri Constitution, which provides in relevant part:
Provision shall be made by general laws for the organization and classification of counties except as provided in section 18(a) or section 18(m) of this article or otherwise in this constitution. The number of classes shall not exceed four, and the organization and powers of each class shall be defined by general laws so that all counties within the same class shall possess the same powers and be subject to the same restrictions. The Assessor’s constitutional challenge, at a minimum, involves fair doubt and reasonable room for disagreement, in light of the Missouri Supreme Court’s
decisions in Chaffin v. Christian County, 359 S.W.2d 730 (Mo. 1962), and Russell
v. Callaway County, 575 S.W.2d 193 (Mo. 1978). Chaffin held that an earlier
version of § 48.030 was unconstitutional, because it provided that, even if a
fourth-class county satisfied an assessed-valuation threshold to become a third-
class county, the fourth-class county would only be reclassified if the county’s
electorate approved the change by vote. 359 S.W.2d at 731. In finding that the
voter-approval requirement was unconstitutional, the Supreme Court
emphasized that the voter-approval requirement departed from the assessed-
valuation criteria which otherwise governed county classifications. The Court
explained:
Prior to the adoption of the 1945 Constitution, there was no constitutional provision with respect to classification of counties or limitation upon the number of classes which the legislature might create. As a result, numerous classifications were made for different
16 purposes. The purpose of [Article VI, § 8] was to simplify and make more effective the organization and operation of the counties. It provides that the provisions for the organization and the classification of counties shall be by general laws and that the organization and powers of each class shall be defined by general laws. A ‘class' as used in this constitutional provision denotes ‘a group, set, or kind marked by common attributes or a common attribute’. To classify is ‘to group or segregate in classes that have systematic relations usually founded on common properties or characters'. The fundamental concept is that of common attributes, common properties, or common characters. The constitutional provision limited the classes of counties to four, and the general assembly provided that the common attribute, property, or character, should be the assessed valuation of the counties subject to classification. . . .
The enactment of subdivision 2 of § 48.030 added a variable that disrupted the common denominator of the classes. It added an element foreign to the concept of assessed valuation in providing that no county of the fourth class should become a county of the third class until the move was approved by the voters of the county. . . . Under it, the progression of a fourth-class county no longer depends upon the general law but on a favorable vote of the county electors. . . . Under the new statutory provision, the common attribute of assessed valuation is no longer controlling. In this instance, Christian County has the assessed valuation of a third-class county but retains the designation and is permitted and required to exercise the powers and be subject to the restrictions of a fourth- class county. This perverts the entire scheme of classification and in effect creates an additional class of counties in violation of § 8, Art. VI, 1945 Constitution. Id. at 734-35 (final emphasis added; citations omitted); accord, Russell, 575 S.W.2d at 199 (provision allowing voters to reject an assessed-valuation-based
reclassification was unconstitutional, since the relevant statutes provide that
“valuation is made the key factor for change in class as well as for initial classification”).
17 In the circuit court, and more explicitly on appeal, the County has hinged its arguments on the claim that fourth-class counties have been exempted from
the assessed-valuation-based classification system otherwise applicable to first-,
second-, and third-class counties. Thus, the County’s brief argues that “§ 48.020(1) RSMo is explicit in that changes in assessed valuation are
immaterial to a change in classification for fourth class counties,” and that
Ҥ 48.030 RSMo, and its valuation based reclassification scheme, is simply not
intended to apply to fourth class counties.” Thus, the County explicitly asserts
that fourth-class counties have been exempted from the assessed-valuation-based
classification system which applies to all other counties. At a minimum, the County’s argument is in tension with Chaffin’s holding that departures from an
assessed-valuation-based classification system are unconstitutional.
The County emphasizes that, since Chaffin and Russell were decided,
Article VI, § 8 was amended, in 1995, to remove a sentence which stated that “[a]
law applicable to any county shall apply to all counties in the class to which such
county belongs.” Quoted in Chaffin, 359 S.W.2d at 733. As our extensive
quotation from Chaffin reflects, however, the Court did not rely on the since-
deleted sentence when it held that the General Assembly could not create
exceptions to an assessed-valuation-based classification scheme. Instead, Chaffin relied on the references in Article VI, § 8 to “general laws,” and to the
establishment of a “classification” system dividing counties into discrete
“classes.” All of the key terms on which Chaffin relied remain in Article VI, § 8 today.
18 We recognize that Chaffin and Russell involved voter-approval requirements which were different than the “grandfather” clause which currently
defines fourth-class counties. We also recognize that the statutes at issue in
Chaffin and Russell allowed voters to decide whether a county would be subject to the classification otherwise dictated by statutory criteria – while under the
County’s argument, it is the General Assembly which has decided that class-four
counties are exempt from an assessed-valuation-based reclassification. While
Chaffin and Russell may not dictate a ruling in the Assessor’s favor, they
establish – at a minimum – that there is “fair doubt and reasonable room for
disagreement” concerning the merits of the Assessor’s constitutional claim. Donaldson, 623 S.W.3d at 156.
Moreover, even if Chaffin and Russell were completely distinguishable
from this case, we would be left with a constitutional question on which there was
no relevant precedent. “One indication that a claim is real and substantial is if it
is one of first impression with [the Supreme Court].” Mayes, 430 S.W.3d at 270.
Accordingly, because the Assessor has preserved a challenge to the validity
of § 48.020.1 which is real and substantial, exclusive jurisdiction of this appeal
lies in the Missouri Supreme Court under Article V, § 3 of the Missouri
Conclusion Pursuant to Article V, § 11 of the Missouri Constitution and § 477.080, we
order that this appeal be transferred to the Missouri Supreme Court, where jurisdiction properly lies.
19 ______________________ Alok Ahuja, Judge All concur.