Dorris v. Missouri Substance Abuse Counselor's
| Decision Date | 07 December 1999 |
| Citation | 10 S.W.3d 557 |
| Parties | (Mo.App. W.D. 1999) James L. Dorris, Appellant, v. The Missouri Substance Abuse Counselors' Certification Board, Inc., Respondent. WD57016 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Cole County, Hon. Byron L. Kinder
Counsel for Appellant: Richard Dale Bender
Counsel for Respondent: Susan Ford Robertson
Opinion Summary: James L. Dorris appeals from the trial court's order dismissing his petition seeking judicial review of the revocation of his substance abuse counselor certification by the Missouri Substance Abuse Counselors' Certification Board, Inc. (MSACCB), a not-for-profit private corporation. He contends that he is entitled to judicial review of his certification revocation because MSACCB is an "agency" under the Missouri Administrative Procedures Act, in that the Missouri Department of Mental Health delegated the powers to certify substance abuse counselors to MSACCB by promulgating rules recognizing MSACCB's certification as a standard for deeming a counselor "qualified."
Division II A holds: Where MSACCB is neither an administrative officer or body existing under the constitution or by law nor is it authorized by law or the constitution to make rules or adjudicate contested cases, MSACCB's revocation of its substance abuse counselor's certification is not subject to judicial review under the Missouri Administrative Procedures Act. MSACCB's creation under statutes governing the formation of not-for-profit corporations does not qualify it as "existing by law" within the statutory definition of an "agency" provided by section 536.010(1), RSMo 1994. The Department of Mental Health's mere recognition of MSACCB as one way a person is deemed "qualified" as a substance abuse counselor confers neither defacto nor dejure "agency" status upon MSACCB.
Robert G. Ulrich
James L. Dorris appeals from the trial court's order dismissing his petition seeking judicial review of the revocation of Mr. Dorris' substance abuse counselor certification by the Missouri Substance Abuse Counselors' Certification Board, Inc. ("MSACCB"). The trial court dismissed Mr. Dorris' petition with prejudice for lack of subject matter jurisdiction. Mr. Dorris contends that he is entitled to judicial review of his certification revocation by MSACCB, a not-for-profit private corporation, because MSACCB is an "agency" under the Missouri Administrative Procedures Act in that the Missouri Department of Mental Health ("Department") delegated the power to certify and de-certify alcohol and drug abuse counselors to MSACCB by promulgating rules recognizing MSACCB's certification as one standard for deeming a counselor "qualified" to practice as a substance abuse counselor in Missouri. The judgment of the trial court dismissing Mr. Dorris' petition with prejudice is affirmed.
Background
The Missouri Substance Abuse Counselor's Certification Board, Inc. is a not-for-profit, private Missouri corporation established in 1977 by the Missouri Association of Alcoholism Counselors for the purpose of providing a recognized credential for qualified counselors to assist persons suffering from substance abuse. MSACCB is one of many private certification organizations throughout the United States related to substance abuse counseling. Participation in MSACCB is purely voluntary. Applicants are interviewed, tested, and certified according to the bylaws of the organization. The State of Missouri exercises no control over the testing procedures, adoption of the bylaws or any other type of procedures implemented by MSACCB. Further, MSACCB maintains its own fiscal accounts and records and is audited by a private CPA. The State exercises no additional authority over MSACCB other than the general authority exercised over a not-for-profit corporation operating in Missouri.
Prior to MSACCB's revocation, Mr. Dorris was a drug, alcohol and substance abuse counselor recognized and certified by MSACCB. In October 1997, MSACCB received a statement of complaint filed against Mr. Dorris and began an investigation into the allegations. MSACCB held a hearing on May 5, 1998, before MSACCB's Hearing Panel of the Committee on Ethics and Appeals ("Hearing Panel"). After the hearing, the Hearing Panel presented its findings and recommendations to MSACCB members and they voted to revoke Mr. Dorris' MSACCB certification as a substance abuse counselor. MSACCB ordered Mr. Dorris' certification revoked with a two-year ineligibility to apply for reinstatement. Mr. Dorris then filed his petition with the trial court seeking review of MSACCB's revocation of his substance abuse counselor certification. The trial court dismissed Mr. Dorris' petition with prejudice for lack of jurisdiction. This appeal followed.
Standard of Review
A motion to dismiss for lack of subject matter jurisdiction should be granted whenever it appears, by a preponderance of the evidence, that the court is without jurisdiction. Lederer v. Director of Division of Aging, 865 S.W.2d 682, 684 (Mo.App.W.D. 1993). The decision to dismiss for lack of subject matter jurisdiction is within the sound discretion of the trial court, and will not be reversed on appeal absent an abuse of that discretion. Id. A trial court's dismissal with prejudice will not be disturbed absent a finding of clear abuse of discretion by the trial court. Williams v. City of Kansas City, 841 S.W.2d 193, 198 (Mo.App.W.D. 1992). Judicial discretion is abused only where the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Speck v. Union Electric Co., 731 S.W.2d 16, 22 (Mo. banc 1987)(superseded on other grounds by Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997)).
Point on Appeal
In his sole point on appeal, Mr. Dorris contends that the trial court erred in dismissing his petition without a hearing on the merits because he is entitled, under the Missouri Administrative Procedures Act ("MAPA"), Chapter 536, RSMo 1994, to judicial review of MSACCB's revocation of his alcohol and drug counselor certification because MSACCB is an "agency" of the Missouri Department of Mental Health. He contends that the Department delegated the...
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