Director Of Revenue, v. Hon: G. Gsertner, Jr., Judge

• Decision Date: 05 December 2000
• Parties: (Mo.banc 2000) . State ex rel. Director of Revenue, State of Missouri, Relator, v. The Honorable Gary M. Gaertner, Jr., Judge, Circuit Court of St. Louis County, Div. 6, 21st Judicial Circuit, Respondent. <A HREF="#fr1-1" name="fn1-1">1 Case Number: SC82436 Supreme Court of Missouri Handdown Date:
• Court: Missouri Supreme Court

32 S.W.3d 564 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State ex rel. Director of Revenue, State of Missouri, Relator, v. The Honorable Gary M. Gaertner, Jr., Judge, Circuit Court of St. Louis County, Div. 6, 21st Judicial Circuit, Respondent.¹

Case Number: SC82436

Supreme Court of Missouri

Handdown Date: 12/05/2000

Appeal From: Original Proceeding in Prohibition

Counsel for Appellant: James Chenault, III

Counsel for Respondent: Kerry Aileen Simpson and David O. Danis

Opinion Summary:

Daniel Barnes was arrested for driving while intoxicated in St. Louis City. He petitioned to review his license revocation in St. Louis County, his residence. The Director of Revenue requested dismissal then prohibition, asserting the county court lacked jurisdiction.

PRELIMINARY WRIT OF PROHIBITION MADE ABSOLUTE AND ORDERED TRANSFERRED.

Court en banc holds:

Barnes filed in the wrong circuit. Section 577.041.4 permits a driver to file a petition for a hearing where the stop/arrest occurred. It prevails over section 302.311, which permits a driver to file an appeal of a license revocation in his county of residence, because it specifically addresses "refusal" revocation cases, as here. Also, a 1991 amendment removed language allowing a driver to file in his county of residence. The Director's revocation notice referred to both sections but specifically informed Barnes that the petition must be filed in the county of the stop/arrest.

When a person files in the wrong circuit, section 476.410 requires transfer to the proper circuit rather than dismissal. The Circuit Court of St. Louis County has jurisdiction only to transfer the case to the Circuit Court of the City of St. Louis.

Opinion Author: William Ray Price, Jr., Chief Justice

Opinion Vote: PRELIMINARY WRIT OF PROHIBITION MADE ABSOLUTE AND ORDERED TRANSFERRED. All concur.

Opinion:

The Director of Revenue seeks a writ of prohibition to prevent the Circuit Court of St. Louis County from reviewing a driver's license revocation. The Director contends that the Circuit Court of St. Louis County lacks subject matter jurisdiction to review a driver's license revocation that arose when a driver refused to submit to a chemical test to determine blood alcohol content after being arrested in the City of St. Louis. Because the driver in such cases must petition for review in the county of his arrest, we make our preliminary writ of prohibition absolute and order transfer.

I. Facts

On September 2, 1999, law enforcement officers arrested Daniel Barnes for driving while intoxicated in the City of St. Louis, Missouri. The Director of Revenue subsequently issued Barnes a notice of revocation for refusing to submit to a chemical test to determine his blood alcohol content. On September 13, 1999, Barnes filed a "Petition to Review Revocation" in the Circuit Court of St. Louis County, the county in which he resides.

The Director filed a motion to dismiss the petition, asserting that the Circuit Court of St. Louis County lacked subject matter jurisdiction under section 577.041.4, RSMo Supp. 1999. The Director argued that the statute required the driver to file his petition in the Circuit Court of the City of St. Louis, the county in which he was arrested. The court denied the Director's motion on February 25, 2000. The Director then filed a petition for writ of prohibition in the court of appeals, which denied the writ on March 9, 2000. This petition followed.

II. Discussion

A.

"[P]rohibition will lie only where necessary to prevent a usurpation of judicial power, to remedy an excess of jurisdiction, or to prevent an absolute irreparable harm to a party." State ex rel. York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998).

B.

The Director argues that the Circuit Court of St. Louis County exceeded its jurisdiction when it set the underlying cause for trial. He contends that any suit to review the revocation of a person's driver's license because that person refused to submit to a chemical test is restricted to the circuit court of the county "in which the arrest or stop occurred." The Director relies on section 577.041.4, RSMo Supp. 1999, which states, in relevant part:

If a person's license has been revoked because of the person's refusal to submit to a chemical test, such person may petition for a hearing before a circuit court or associate circuit court [sic] in the county in which the arrest or stop occurred.

Section 577.041.4, RSMo Supp. 1999.

The Respondent, citing the legislature's use of the word "may," argues that the language of section 577.041.4 is permissive. He further argues that section 577.041.4 should be read in pari materia with section 302.311, RSMo 1994, which states, in relevant part:

In the event an application for a license is denied or withheld, or in the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence . . . .

Section 302.311, RSMo 1994. The Respondent contends that he is allowed to choose to bring his action either in the county in which the arrest occurred pursuant to section 577.041.4 or in the county of his residence consistent with section 302.311.

C.

The Respondent's argument fails for two reasons. First, he misapplies the doctrine of in pari materia when he attempts to use it to graft the venue provision of section 302.311 onto section 577.041.4. "In pari materia" means "upon the same matter or subject." Black's Law Dictionary 791 (6th ed. 1990). The doctrine requires that statutes relating to the same subject matter be construed together even though the statutes are found in different chapters and were enacted at different times. Romans v. Director of Revenue, 783 S.W.2d 894, 896 (Mo. banc 1990). However, "[w]here one statute deals with a subject in general terms and another deals with the same subject in a more minute way, the two should be harmonized if possible, but to the extent of any repugnancy between them the definite prevails over the general." Id. (quoting State ex rel. Fort Zumwalt School Dist. v. Dickherber, 576 S.W.2d 532, 536-37 (Mo. banc 1979)). Though the statutory sections at issue deal with the same general subject, they are repugnant to the extent that each specifies a different venue. Because section 577.041.4 specifically addresses "refusal" revocation cases, it must prevail over the general review statute.

The Respondent's argument also fails when viewed in light of the 1991 amendments to section 577.041. Before amendment, section 577.041 allowed a driver to file for review in the county of his residence.

If a person's license has been revoked because of his refusal to submit to a chemical test, he may request a hearing before a court of record in the county in which he resides or in the county in which the arrest occurred.

Section 577.041.2, RSMo Supp. 1990. However, in amending the statute, the legislature deleted the language allowing the driver to request a hearing "in the county in which he resides." Compare id. with section 577.041.4, RSMo Supp. 1999. "When the legislature has altered an existing statute such change is deemed to have an intended effect, and the legislature will not be charged with having done a meaningless act." Woolbright v. Director of Revenue, 891 S.W.2d 860, 863 n.6 (Mo. App. 1995) (citing State v. Sweeney, 701 S.W.2d 420, 423 (Mo. banc 1985)). The language of section 577.041.4 is permissive only to the extent that it allows the driver to choose whether to file a petition for review of revocation. The statute does not permit the driver to file his petition outside of "the county in which the arrest or stop occurred." Section 577.041.4, RSMo Supp. 1999.

D.

The Respondent further argues that the Director is estopped from challenging the circuit court's jurisdiction because the notice of revocation referenced both section 577.041 and section 302.311. Without specifically addressing whether jurisdiction may be conferred by estoppel in such cases, we find that the actions of the Director were insufficient as a factual matter to raise that issue. The notice stated:

...