                     In the Missouri Court of Appeals
                             Eastern District
                                         DIVISION ONE

WILLIAM D. HILL,                              )       No. ED101552
                                              )
       Petitioner/Appellant,                  )       Appeal from the Circuit Court of
                                              )       Jefferson County
vs.                                           )
                                              )
OLIVER “GLENN” BOYER, SHERIFF                 )       Honorable Timothy S. Miller
OF JEFFERSON COUNTY, MISSOURI,                )
                                              )       Filed: June 16, 2015
       Respondent.                            )


                                      I. INTRODUCTION

       William David Hill appeals the judgment of the Circuit Court of Jefferson County

affirming the denial by Oliver “Glenn” Boyer, Sheriff of Jefferson County Missouri, of his

application for a permit to carry a concealed firearm pursuant to section 571.101, R.S.Mo. (Cum.

Supp. 2012). Section 571.101.2(3) provides that individuals who have been convicted of a felony

punishable by more than one year in prison are ineligible for a concealed-carry permit. The trial

court affirmed the denial of Hill’s permit application, because Hill pleaded guilty to the felony of

forgery, section 561.011, R.S.Mo. (1969) (repealed 1977), received a suspended sentence of two

years’ imprisonment, and was put on probation.

       Relevant to our disposition on appeal, Hill argues that the trial court erred, because

section 571.101 is unconstitutionally retrospective in operation pursuant to article I, section 13 of

the Missouri Constitution. Because Hill challenges the constitutional validity of a state statute,
the Missouri Supreme Court has exclusive jurisdiction over this appeal. Mo. Const. art. V,

section 3. We therefore transfer Hill’s appeal to the Missouri Supreme Court.1

                                                II. DISCUSSION

          “This court has the duty of examining our jurisdiction in every case.” Sharp v. Curators

of Univ. of Mo., 138 S.W.3d 735, 737 (Mo. App. E.D. 2003). “In examining our jurisdiction . . .

we look first to the jurisdiction granted this Court under the Missouri Constitution.” Id. Article

V, section 3 of the Missouri Constitution provides that “[t]he [Missouri] supreme court shall

have exclusive appellate jurisdiction in all cases involving the validity . . . of a statute . . . of this

state.”

          Hill challenges the validity of a state statute. He argues that section 571.101’s prohibition

against issuing a concealed-carry permit to individuals who have been convicted of a felony

punishable by more than one year in prison is unconstitutionally retrospective in operation

pursuant to article I, section 13 of the Missouri Constitution. Specifically, he claims that it

operates to deny him a concealed-carry permit, despite the fact that he was “restored [to] all the

rights and privileges of citizenship” pursuant to the former section 549.111.1, R.S.Mo. (1969)

(repealed 1977), two years after his felony conviction. He contends that section 571.101 is a civil

regulatory scheme that impairs his vested right in having had his rights and privileges of

citizenship restored, and that the operation of this law imposes a new disability on him. See Mo.

Real Estate Comm’n v. Rayford, 307 S.W.3d 686, 690 (Mo. App. W.D. 2010) (explaining law is

          1
             We note Hill also argues, inter alia, that section 571.101 has been invalidated by the recently amended
article I, section 23 of the Missouri Constitution, which became effective after the trial court’s final judgment, but
before this appeal could be heard. Though the issue of article I, section 23 was not before the trial court, Hill
contends that this Court must apply the law as it exists at the time of this appeal. However, we need not determine
whether this additional constitutional claim is preserved, and therefore falls within the exclusive jurisdiction of the
Missouri Supreme Court. As we will explain, Hill’s claim that section 571.101 is unconstitutionally retrospective is
preserved, and requires that we transfer this case regardless. See Estate of Potashnick, 841 S.W.2d 714, 718 (Mo.
App. E.D. 1992) (“If any point on appeal involves [the validity of a state statute], the entire case must be transferred
to the Supreme Court.” (citing State ex rel. Union Elec. v. Pub. Serv. Comm’n, 687 S.W.2d 162, 165 n.3 (Mo. banc
1985))).

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unconstitutionally retrospective where, inter alia, it is civil in nature, and impairs a vested right

or imposes a new disability).

       However, our inquiry does not end there. “The mere assertion that a statute is

unconstitutional does not alone deprive this Court of jurisdiction.” Sharp, 138 S.W.3d at 737. “If

the appellant’s claim regarding the constitutional validity of [a statute] has not been properly

preserved for appellate review, jurisdiction would be in this Court, rather than the Supreme

Court.” Id. at 738. “And, the Supreme Court will not entertain the appeal if the allegation is

pretextual; that is, the allegation concerning the constitutional validity of the statute must be real

and substantial for jurisdiction to vest in the Supreme Court.” Id. “If the challenge is merely

colorable, this Court has jurisdiction.” Id.

       We first address the issue of preservation. “To properly preserve a constitutional issue for

appellate review, the issue must be raised at the earliest opportunity and preserved at each step of

the judicial process.” Id. Additionally, the issue must have been presented to and ruled upon by

the trial court. Id. “This rule is necessary to prevent surprise to the opposing party and to allow

the trial court the opportunity to identify and rule on the issue.” Carpenter v. Countrywide Home

Loans, Inc., 250 S.W.3d 697, 701 (Mo. banc 2008). “The rule allows parties to have a full and

fair opportunity to litigate significant issues as early and as inexpensively in the litigation process

as possible.” Id. However, “[t]he purpose of the rule is not to prevent parties from litigating

issues that arise during the course of a lawsuit if there is no prejudice to the opposing party.” Id.

       Here, the record shows that Hill raised the claim that section 571.101 is

unconstitutionally retrospective during trial, rather than in his pleadings. Boyer objected on the

basis that constitutional issue must be raised at the earliest opportunity. Nevertheless, the trial

court overruled Boyer’s objection, and exercised its discretion to hear Hill’s argument. At the



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trial court’s request, the parties then filed briefs addressing this issue. After reviewing the

parties’ briefs, the trial court ruled that section 571.101 was not unconstitutionally retrospective

in application.

       On appeal, both Hill and Boyer agree that they had a full and fair opportunity to litigate

Hill’s constitutional claim. They observe that the trial court had the opportunity to hear

arguments, review briefs, and rule on the claim. Accordingly, both parties assert that the claim

was properly preserved for appellate review. As our own review of the record has revealed

nothing to suggest that Hill caused prejudice by raising his claim when he did, and the trial court

exercised its discretion to review and decide it, we agree with the parties that the claim was

preserved. Therefore, we move next to the issue of whether Hill’s claim is real and substantial.

       Hill’s claim is real and substantial, if:

       upon preliminary inquiry, the contention discloses a contested matter of right,
       involving some fair doubt and reasonable room for controversy; but, if such
       preliminary inquiry discloses the contention is so obviously unsubstantial and
       insufficient, either in fact or law, as to be plainly without merit and a mere
       pretense, the claim may be deemed merely colorable.

Sharp, 138 S.W.3d at 738 (quoting Potashnick, 841 S.W.2d at 718). “One clear indication that a

constitutional challenge is real and substantial and made in good faith is that the challenge is one

of first impression with this Court.” Id. (quoting Rodriguez v. Suzuki Motor Corp., 996 S.W.2d

47, 52 (Mo. banc 1999)).

       Here, as we have explained, Hill argues that section 571.101 is unconstitutionally

retrospective in operation pursuant to article I, section 13 of the Missouri Constitution, because it

operates to deny him a concealed-carry permit, despite the fact that he was “restored [to] all the

rights and privileges of citizenship” pursuant to the former section 549.111.1 two years after his

felony conviction. The validity of a law restricting a felon’s right to carry a concealed firearm,



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where said felon has been restored to all rights and privileges of citizenship by a prior law, is a

question that has never been addressed by a Missouri court. Further, it is not “so obviously

unsubstantial and insufficient . . . as to be plainly without merit.” Sharp, 138 S.W.3d at 738

(quoting Potashnick, 841 S.W.2d at 718). Accordingly, Hill’s constitutional claim is real and

substantial, not merely colorable.

                                      III. CONCLUSION

       Hill’s appeal involves a challenge to the constitutional validity of a Missouri statute. This

claim was properly preserved for appellate review, and is real and substantial. Therefore, the

Missouri Supreme Court has exclusive jurisdiction over this appeal. Mo. Const. art. V, section 3.

We transfer Hill’s appeal to the Missouri Supreme Court.



                                                     _________________________________
                                                     Lisa S. Van Amburg, Judge

Lawrence E. Mooney, P. J. and
Clifford H. Ahrens, J. concur.




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