Herron v. Kempker, Case Number WD62328 (Mo. App. 11/4/2003)

• Decision Date: 04 November 2003
• Docket Number: Case Number WD62328.
• Citation: Herron v. Kempker, Case Number WD62328 (Mo. App. 11/4/2003) (Mo. App. 2003)
• Parties: William Herron, Appellant v. Gary Kempker and George Lombardi, Respondents.
• Court: Missouri Court of Appeals

Page 1

William Herron, Appellant v. Gary Kempker and George Lombardi, Respondents.

Case Number WD62328.

Court of Appeals of Missouri, Western District.

November 4, 2003.

Appeal From: Circuit Court of Cole County, Hon. Ralph Haslag

William Herron, Counsel for Appellant.

David Johnson, Counsel for Respondent.

DISMISSED, Newton and Holliger, JJ., concur.

Paul M. Spinden, Presiding Judge

A prison inmate seeks judicial review of prison administrators' decisions to segregate him from the prison population until he submits to a psychological evaluation. The inmate, William Herron, filed an injunction action seeking review of decisions by the director of the Department of Corrections, Gary Kempker, and the director of the Division of Adult Institutions, George Lombardi. The circuit court dismissed Herron's lawsuit, and Herron appeals. We dismiss Herron's appeal because the circuit court correctly dismissed Herron's lawsuit, given its lack of jurisdiction.

Herron asserts that the circuit court erred in dismissing his lawsuit because section 536.150.1, RSMo 2000, entitled him to file an injunction action seeking judicial review. He argues that the prison administrators' decision to continue his assignment to administrative segregation was a noncontested case subject to judicial review under section 536.150.¹

In determining whether or not—and how—the judiciary can review the Department of Correction's decision, we first must determine whether Herron's case was contested or noncontested. The distinction is significant because the General Assembly has mandated two different paths for judicial review of administrative decisions, depending on whether the case is contested or noncontested. In section 536.100, RSMo 2000, the General Assembly mandated that any person who has exhausted all administrative remedies and is aggrieved by a final decision in a contested case is entitled to judicial review complying with sections 536.100 to 536.140, RSMo 2000. The review in these cases is to be on the record mandated by section 536.130 and within the scope mandated by section 536.140.

In noncontested cases, in which the administrative body typically does not make a record of its decisions, the General Assembly provided in section 536.150 for the circuit court to review the administrative body's decision by first making a record. The statute says that the "decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action," and the circuit court is to, in effect, step into the shoes of the administrative officer or body by:

[D]etermin[ing] the facts relevant to the question whether [the petitioner] at the time of [the administrative officer's or body's] decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion[.]

After making a record and deciding factual issues, the circuit court is to "render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require[.]" Id.

The General Assembly declared in section 536.010(2), RSMo 2000, that the determining factor of whether a case is contested or noncontested is whether or not the law required the administrative agency to hold a hearing in the case. If it does, it is a contested case. All other cases are noncontested. The General Assembly defined a contested case as "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing[.]"

Section 536.010(2). In construing this definition, the Supreme Court has held that "section 536.010(2) mandates that if a hearing is required by substantive law, it must be conducted according to contested case procedures." State ex rel. Yarber v. McHenry, 915 S.W.2d 325, 328 (Mo. banc 1995). The Supreme Court further instructed, "The `law' referred to in the contested case definition encompasses any statute or ordinance, or any provision of the state or federal constitutions that mandates a hearing." Id.

A host of cases issued after McHenry ignored McHenry's instruction by declaring that a determining factor in separating contested and noncontested cases was how much procedural formality attended to the administrative hearing.² The cases reasoned that cases with much formality, such as the calling and cross-examination of witnesses, are contested cases and those which did not have much formality were noncontested cases. The Supreme Court specifically rejected this reasoning in McHenry:

In Hagely [v. Board of Education of Webster Groves School District, 841 S.W.2d 663 (Mo. banc 1992)], this Court, in dicta, stated:

A hearing that is not held pursuant to the procedural format necessary under MAPA [Missouri Administrative Procedures Act, or Chapter 536] does not qualify as a contested case, even though the hearing is required by law.

Id. at 668-69. However, as pointed out in Weber v. Firemen's Retirement System, 872 S.W.2d 477, 480 (Mo. banc 1994), this language was used to indicate that certain procedural advantages provided to the agency by the MAPA may be lost by the agency if it failed to follow contested case procedures. Id. at n. 3. In the context of the case at hand, section 536.010(2) mandates that if a hearing is required by substantive law, it must be conducted according to contested case procedures. The relevant inquiry is not whether the agency in fact held a contested case hearing, but whether it should have done so.

. . .

The "law" referred to in the contested case definition encompasses any statute or ordinance, or any provision of the state or federal constitutions that mandates a hearing. Weber, 872 S.W.2d at 479; Byrd v. Board of Curators of Lincoln University of Missouri, 863 S.W.2d 873, 875 (Mo. banc 1993). The right to a hearing, in other words, is determined by substantive law outside the MAPA.

Id. at 328 (emphasis added). In McHenry, in which the issue was whether or not a school district's denial of a semester of high school credit hours because of a student's excessive absences was a contested case, the Supreme Court, without any consideration of how formal or informal the hearing was or should have been, decided that his case was a contested case under the definition of section 536.010(2) because the student's constitutional rights required a hearing.

Indeed, the McHenry court limited the dictum in Hagley in which the court had said that "[a] hearing that is not held pursuant to the procedural format necessary under MAPA does not qualify as a contested case[.]" Hagley, 841 S.W.2d at 668. The McHenry court declared that it had used this language in Hagley "to indicate that certain procedural advantages provided to the agency by the MAPA may be lost by the agency if it failed to follow contested case procedures." McHenry, 915 S.W.2d at 328. The McHenry court emphasized that what made a case contested or noncontested had nothing to do with whether or not the administrative agency held a hearing with the procedural formalities, but whether or not the agency should have held such a hearing. Id. That a hearing is formal or informal is irrelevant to whether or not the case is contested. The determining factor is whether or not the law requires that a hearing be held. To hold otherwise is illogical, if not absurd, and thwarts one of Chapter 536's primary purposes: to mandate what procedures must be followed in contested cases. Holding that a contested case is determined by what procedures an agency used in holding a hearing renders the General Assembly's definition in section 536.010(2) meaningless. Defining a contested case as one in which formal procedures were employed leaves an individual demanding the procedures of Chapter 536 with a vacuous position. If a hearing's formality or informality determines whether a case is contested or noncontested, the court's response to a person demanding Chapter 536's procedures would be exasperating:

"Only cases having formal procedures are contested cases. The agency did not give you formal procedures; therefore, your case is not a contested case, and you are not entitled to formal procedures." The absurdity of this is obvious. "The relevant inquiry is not whether the agency in fact held a contested case hearing, but whether it should have done so." Id.

Some contested cases may have limited procedural formality, and some noncontested cases may have some gratuitous procedural formality. The formality of the procedures followed by the agency is irrelevant. The classification of the case as contested or noncontested is not determined by the manner in which an agency conducts a hearing. Rugg v. City of Carrollton, 990 S.W.2d 89, 90 (Mo. App. 1999).³

Kempker and Lombardi also assert that the individuals that conduct the hearings of inmates'...