Division of Employment Sec. v. Smith, WD 31759

• Decision Date: 03 November 1980
• Docket Number: WD 31550.,No. WD 31759,WD 31759
• Parties: DIVISION OF EMPLOYMENT SECURITY State of Missouri, Respondent, v. Glendine SMITH, Appellant. DIVISION OF EMPLOYMENT SECURITY State of Missouri, Respondent, v. Gregory BROWN, Appellant.
• Court: Missouri Court of Appeals

607 S.W.2d 829

DIVISION OF EMPLOYMENT SECURITY State of Missouri, Respondent, v. Glendine SMITH, Appellant.

DIVISION OF EMPLOYMENT SECURITY State of Missouri, Respondent, v. Gregory BROWN, Appellant.

Nos. WD 31759, WD 31550.

Missouri Court of Appeals, Western District.

November 3, 1980.

Michael Hufft, Dana K. Kaiser and Edward Ford, III, Kansas City, for appellants.

Sharon A. Willis, Kansas City, Rick V. Morris, Jefferson City, for respondent.

ORDER OF TRANSFER TO THE SUPREME COURT OF MISSOURI FOR LACK OF JURISDICTION

PRITCHARD, Presiding Judge.

These consolidated cases come to this court in the following postures:

Appellants Brown and Smith were charged by the Division of Employment Security with having received unemployment compensation benefits for which they were disqualified from receiving under § 288.380(11) RSMo 1978. Notices of the claim were mailed to appellants by certified mail ostensibly under the provisions of § 288.160(2), which provides for written notice served personally or by registered mail.

Payment not being forthcoming, respondent filed its certificates of amounts due in the circuit court but the same were assigned to different divisions, Judges Bondurant and Mauer, under the provisions of § 288.170(1), under which the certificates of amounts due "shall have the force and effect of a judgment of the circuit court until the same is satisfied by the division through its authorized agents." Executions thereunder are authorized, which were issued, and both appellants filed motions to quash the executions which were overruled.

Brown's motion to quash had four grounds: (1) The trial court lacked jurisdiction because he was not personally served; (2) and (3) §§ 288.380(11) and 288.170(1) violate due process under the state and federal constitutions because his property was taken and a personal judgment was entered against him without notice or opportunity to be heard; and (4) the foregoing statutes violate Const.Mo. Art. II, § 1 (Separation of Powers), in that an executive agency was allowed to enter a judgment in the trial court by merely filing a certificate with the court. It is not clear in the motion that something was amiss in the assessment procedure.

Points V and VI of Brown's brief attack the notice provision of § 288.160(2) for the first time in that there was noncompliance with the statute and that noncompliance caused execution in violation of due process. Other points reiterate grounds stated in his motion to quash.

Smith's motion to quash went further than Brown's. Her motion included allegations of improper notice in the assessment procedure in that she was served by certified mail rather than by registered mail, and she was not personally served. Respondent, in trial court suggestions in opposition to Smith's motion, sought to justify the service by certified mail under § 1.025, RSMo 1978, "that `registered mail' shall include `certified mail as defined and certified under Regulations of the United Post Office Department.'"

Neither Brown nor Smith presented any point as to the validity of § 1.025 in their appellants' briefs. Respondent, however, in its briefs, raised the issue of the validity of its service by certified mail relying on § 1.025. Then, for the first time in their reply briefs, appellants attack the constitutional validity of that section under Const.Mo. Art. III, § 28, "* * * No act shall be amended by providing that words be stricken out or inserted, but the words to be stricken out and those inserted in lieu...