Rodriguez v. Suzuki Motor Corp.6/1/1999
(Mo. App. 1996); Kansas City Star v. Shields, 771 S.W.2d 101, 103 (Mo. App. 1989), although this Court has not used that exact language since the early 1970's, see, e.g., Kansas City v. Douglas, 473 S.W.2d 101 (Mo. 1971). In 1976, article V, section 3 was amended to its present form, and as this Court has observed,
Earlier constitutional language about "construction of the constitution of the United States or of this state" has been completely eliminated, and the numerous decisions about the difference between "construction" and "application" of constitutional provisions are no longer of concern. The sole question is whether the validity of the statute is involved. State ex rel. Union Electric Co. v. Public Service Commission, 687 S.W.2d 162, 164 (Mo. banc 1985).
In at least one case since the 1976 amendment, this Court based its jurisdiction on the notion that the constitutional claim was brought in "good faith." Beatty v. Metropolitan Sewer District, 700 S.W.2d 831, 834 (Mo. banc 1985). This was no abandonment of the "not merely colorable" test, but tacitly served to clarify the somewhat confusing use of the word "colorable," which has two recognized meanings: 1) "seemingly valid and genuine: having an appearance of truth, right, or Justice: plausible;" and 2) "feigned, factitious, counterfeit." Webster's Third New International Dictionary 449 (1986). In the context of the "not merely colorable" test, the word "colorable" means feigned, fictitious or counterfeit, rather than plausible. In any event, this Court entertains plausible claims, which necessarily are made in good faith, but not feigned, fictitious or counterfeit claims, which necessarily are not.
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. That is the reason for this Court's refusal to assume jurisdiction of cases when the precise constitutional questions raised have been settled by prior decisions of this Court, State ex rel. Doniphan Tel. Co. v. Public Service Comm'n, 369 S.W.2d 572, 575-76 (Mo. 1963); Swift & Co. v. Doe, 311 S.W.2d 15, 21 (Mo. 1958), and, conversely, that is the reason for the Court of Appeals' willingness to assume jurisdiction of such cases, Connors v. Leachman, 740 S.W.2d 376, 377 (Mo. App. 1987); Renfrow v. Gojohn, 600 S.W.2d 77, 79 (Mo. App. 1980). Notwithstanding the jurisdictional importance of the fact that a constitutional claim is one of first impression, conceivably, even those claims might be so patently false and frivolous that this Court will not have jurisdiction.
A particularly apt example of a constitutional challenge that met the real and substantial and good faith test because it raised a question of first impression is this Court's recent opinion in Riche v. Director of Revenue, 987 S.W.2d 331(Mo. banc 1999). Riche was a direct appeal in which this Court based its jurisdiction on appellant's challenge to the constitutionality of section 302.505, RSMo Supp. 1997, which authorizes administrative driver's license suspension and revocation for driving while intoxicated. The statute was claimed to be invalid because it failed to include a requirement for probable cause or reasonable suspicion for the initial stop of the vehicle and driver in certain instances. The underlying question was whether the exclusionary rule, which would have precluded evidence from an unlawful stop in criminal cases, applies also in administrative driver's license suspension and revocation proceedings, which are civil cases. Id. at 333. Despite the fact that the United States Supreme Court has never held that the exclusionary rule applies to civil cases, this Court, having ne
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