Gurley v. Missouri Bd. of Private Investigator Examiners

• Decision Date: 06 March 2012
• Docket Number: No. SC 91741.,SC 91741.
• Parties: Ricky B. GURLEY, Appellant, v. MISSOURI BOARD OF PRIVATE INVESTIGATOR EXAMINERS, et al., Respondents.
• Court: Missouri Supreme Court

361 S.W.3d 406

Ricky B. GURLEY, Appellant,

v.MISSOURI BOARD OF PRIVATE INVESTIGATOR EXAMINERS, et al., Respondents.

No. SC 91741.

Supreme Court of Missouri, En Banc.

March 6, 2012.

Jay Barnes, Barnes & Associates, Jefferson City, for Ricky B. Gurley.

Kevin Hall, Attorney General's Office, Jefferson City, for Missouri Board of Private Investigator Examiners.

Anthony E. Rothert and Grant R. Doty, ACLU Organization, St. Louis, Stephen Douglas Bonney, ACLU Organization,

Kansas City, for the American Civil Liberties Union of Eastern Missouri.WILLIAM RAY PRICE, JR., Judge.I. Introduction

In 2007, the Missouri General Assembly enacted a series of statutes regulating the private investigator profession. See sections 324.1100 to 324.1148.¹ Appellant Rickey Gurley applied for licensure as a private investigator pursuant to the statutory scheme. The Board of Private Investigator Examiners initially denied Gurley's application, but later the Administrative Hearing Commission (“AHC”) ordered the board to grant Gurley a license.

Despite the fact that Gurley eventually was awarded a private investigator license, he continued to pursue a lawsuit he had filed against the board and its members in the Cole County circuit court. Gurley argued that the statutory scheme was unconstitutional on its face because it violated the free speech clauses of both the Missouri and the United States Constitutions. He also argued that his rights to procedural due process under the Fourteenth Amendment to the federal Constitution were violated when the board denied his application before giving Gurley a meaningful opportunity to be heard.

The circuit court dismissed Gurley's procedural due process claim as moot. It also dismissed Gurley's free-speech claims after concluding that the private investigator licensure statutes were not unconstitutional on their face.

The judgment of the circuit court is affirmed.

II. Facts and Procedural History

Gurley has worked as a private investigator since at least 2003. He owns a share of Risk Management Research Investments, Inc., a company that conducts private investigations that was incorporated in July 2002. In 2003, Gurley obtained a license to practice as a private investigator from the city of Columbia, and he maintained that license until 2010. To do this, he was required to pay dues and to post an insurance bond. The final time Gurley renewed his Columbia private investigator license, he paid the required fee with the understanding that the license would be valid until September 30, 2010.

In 2007, the General Assembly decided that Missouri should regulate the private investigator profession on a statewide basis. It enacted House Bill 780, which made “engag[ing] in the private investigator business in this state unless such person is licensed as a private investigator” a class A misdemeanor. Section 324.1104.1; ² section 324.1148.³ The statute makes repeat incidents of unlicensed practice class D felonies. See section 342.1148. The 2007 legislation also created a state agency called the “Board of Private Investigator Examiners.” See section 324.1102.⁴ Anyone wishing to become licensed by the state of Missouri to practice as a private investigator must apply to the board. See section 324.1108.⁵ Agency rules establishing the procedures for applying to the board became effective in early 2010.

Gurley submitted an application to the board for a Missouri private investigator license in March 2010. He continued working as a professional private investigator and operating his business while his application was pending. On April 5, 2010, a board representative telephoned Gurley to inform him that the board wished to schedule a conference with him regarding his application. Gurley asked the representative why the conference was necessary and whether there were any problems with his application, but the board representative refused to give Gurley any further information. Gurley agreed to meet with the board on April 12, 2010.

At the conference, members of the board told Gurley that his application for a private investigator license would be denied because he had violated the federal Driver's Privacy Protection Act (“DPPA”) ⁶. The board alleged that several blog entries posted by Gurley in November and December 2009 violated the DPPA because they contained other individuals' personal information that Gurley had obtained from Missouri driver records. No law enforcement agency had ever formally charged Gurley with violating the DPPA, however.

Gurley suspected that the board members had been predisposed to deny his application, and the board had not given him the opportunity to defend himself at the meeting. In addition, Gurley had a longstanding professional rivalry with the man who sat as the board's vice president.

The board's denial of Gurley's application became official the next day, April 13, 2010. On April 21, 2010, Gurley, as is permitted by statute, sought review of the board's decision in the AHC. Gurley also filed an eight-count petition against the board in the Cole County circuit court on June 1, 2010, seeking, among other things, a declaratory judgment that the board violated Gurley's procedural due process rights when it denied his license application. The petition also sought a declaratory judgment striking down the licensing scheme enacted by the General Assembly as a violation of the free speech clauses of the United States Constitution's First Amendment and article I, section 8 of the Missouri Constitution. The circuit court immediately ruled against Gurley on three counts of his petition, including the count relating to his procedural due process claim, but stayed judgment as to the remaining counts pending a decision by the AHC.

According to Gurley, his business suffered once word spread of the board's denial of his application. He continued operating his business, however, and neither the board nor any other law enforcement agency took action to prevent Gurley from practicing as a private investigator. Meanwhile, on July 19, 2010, the Columbia city council repealed its entire private investigator licensing scheme. Five months later, in an order issued December 14, 2010, the AHC held that the board lacked cause to deny Gurley's license application and ordered that the license issue. On December 31, 2010, the circuit court dismissed the remaining counts of Gurley's petition, including his free speech claim.

Now Gurley appeals the decision of the circuit court, urging this Court to adjudicate his procedural due process and free speech claims despite his success in the AHC. Because Gurley questions the validity of Missouri's private investigator licensure scheme on constitutional grounds, this Court has exclusive appellate jurisdiction. See Mo. Const. art. V, sec. 3.⁷

III. Standard of Review

“A declaratory judgment provides guidance to the parties, declaring their rights and obligations or otherwise governing their relationship ... and generally may be granted when a court is presented with: (1) a justiciable controversy that presents a real, substantial, presently-existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation; (2) a plaintiff with a legally protectable interest at stake, consisting of a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief; (3) a controversy ripe for judicial determination; and (4) an inadequate remedy at law.” City of Lake Saint Louis v. City of O'Fallon, 324 S.W.3d 756, 760 (Mo. banc 2010) (internal quotations and citations omitted). “When the trial court fails to make a declaration settling rights, as when it dismisses a petition without a declaration, a reviewing court may make the declaration.” Nicolai v. City of St. Louis, 762 S.W.2d 423, 426 (Mo. banc 1988). “When there are no disputed facts, and the issue is a purely legal one, the reviewing court will declare the rights and duties of the parties.” Law v. City of Maryville, 933 S.W.2d 873, 877 (Mo.App.1996).

“An appellate court reviews a trial court's grant of a motion to dismiss de novo.” City of Lake Saint Louis, 324 S.W.3d at 759. “The issue of whether a statute is unconstitutional is a question of law subject to de novo review.” Ehlmann v. Nixon, 323 S.W.3d 787, 788 (Mo. banc 2010). “Statutes are presumed to be constitutional.” Id.

IV. AnalysisA. Free Speech Claims

While Gurley argues that the Missouri private investigator statute should be struck down on free speech grounds, he does not argue that the statute infringes on his own free speech rights. Indeed, Gurley concedes both that the state may regulate private investigators' business practices and that this particular statute is constitutional as applied to private investigators. Rather, Gurley argues that the statute is constitutionally deficient because it reaches much further than professional private investigators, requiring ordinary citizens to obtain licensure before engaging in all manner of protected First Amendment activity. In other words, Gurley argues that the statute is invalid on its face because it is overbroad. See United States v. Stevens, ––– U.S. ––––, ––––, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (“[A] law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.”) (internal quotation marks omitted).

Section 324.1104.1 declares it “unlawful for any person to engage in the private investigator business in this state unless such person is licensed as a private investigator....” “Private investigator business” is defined in section 324.1100:

As used in sections 324.1100 to 324.1148, the following terms mean:

(9) “Private investigator business,” the furnishing of, making of, or agreeing to make, any investigation for the purpose of obtaining information pertaining to:

(a) Crimes or...