Kinzenbaw v. Director of Revenue, SC83802

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PER CURIAM
• Citation: 62 S.W.3d 49
• Parties: Brent L. Kinzenbaw, Respondent v. Director of Revenue, Appellant. SC83802 Supreme Court of Missouri
• Docket Number: SC83802
• Decision Date: 18 December 2001

Brent L. Kinzenbaw, Respondent
v.
Director of Revenue, Appellant.

SC83802

Supreme Court of Missouri

12/18/2001

Appeal From: Circuit Court of Morgan County, Hon. Patricia F. Scott

Counsel for Appellant: James R. Layton, Alana M. Barragan-Scott and James A. Chenault, III

Counsel for Respondent: Tom Sinder and Timothy R. Cisar

Opinion Summary:

The director of revenue suspended Brent Kinzenbaw's driver's license for 10 years on the grounds that he had been convicted three times for driving while intoxicated. Kinzenbaw asked the circuit court to review the administrative action. In its answer, the director attached and incorporated as part of her answer the administrative record of the three convictions. The court granted a hearing, but neither side presented evidence. The court set aside the denial of the license, finding that the director failed to carry her burden of proof. The director appeals.

Court en banc holds: This proceeding is governed by section 302.311, permitting appeals of a driver's license suspension or revocation, and section 536.150, regarding appeals of noncontested administrative cases. Both sections put the burden on the driver to appeal or bring suit regarding the administrative action. Thus, the driver bears the initial burden of producing evidence that he is entitled to a license. It then becomes the director's burden to produce evidence of the reasons for the adverse action. Under this Court's recent decision in Wampler v. Director of Revenue, 48 S.W.3d 32, 35 (Mo. banc 2001), the director sufficiently satisfies this burden by introducing the administrative record into evidence. Then, it becomes the driver's burden to prove that the administrative record is not true or that the grounds for the suspension are unlawful, unconstitutional, or otherwise insufficient to support the director's action. The case is remanded for a hearing consistent with the allocation of burdens set forth in this opinion.

Concurring opinion by Chief Justice Limbaugh: This writer would hold that the only party with any burden of proof or persuasion is Kinzenbaw, as the party contesting the driver's license suspension. He reasons that the issues raised in Wampler are not raised here and that the burden of producing evidence should not shift to the director until Kinzenbaw has made a prima facie case that he is entitled to relief.

White, Holstein, Benton, Stith and Price, JJ., concur; Limbaugh, C.J., concurs in separate opinion filed.

Michael A. Wolff, Judge

The director of revenue suspended Brent L. Kinzenbaw's driver's license for ten years on the grounds that Kinzenbaw has been convicted more than twice of driving while intoxicated. Kinzenbaw filed a petition in circuit court to review the suspension. The statute provides for "de novo" review.

The director filed an answer that included the administrative record upon which the suspension was based. At the circuit court hearing, neither party introduced evidence. The court held that the director failed to carry her "burden of proof" and entered judgment setting aside the denial of the license.

For reasons that follow, the Court holds: Kinzenbaw has the burden of producing evidence that he is qualified for a driver's license, and the director has the burden of producing evidence that he is not. The director meets her burden by introducing the administrative record. The burden of persuasion, as distinct from the burden of producing evidence, is at all times on Kinzenbaw and never shifts. It is Kinzenbaw's burden to prove that the facts on which the director relied in denying the license are not true or are legally insufficient to support the denial or suspension of the license.

The circuit court's judgment is reversed and remanded.

The Pleadings and Record in the Circuit Court

Kinzenbaw had a driver's license. The director notified Kinzenbaw, in the words of his circuit court petition admitted in the director's answer, "that the Operator's license previously issued by the Missouri Department of Revenue . . . will be suspended for a period of ten years for the alleged reason that the Plaintiff (Kinzenbaw) has been convicted three or more times of driving while intoxicated."

Kinzenbaw's petition in the circuit court is labeled as a "Petition to review suspension of driver's license." The director's answer treats the administrative action as a denial of Kinzenbaw's "application for driving privileges" under section 302.060(9).(FN1) Whether a suspension or a denial of a license, the pleadings establish that the reason Kinzenbaw does not have a driver's license is the director's assertion that Kinzenbaw has three convictions for driving while intoxicated. From the pleadings, it appears that he is otherwise eligible.

In the director's answer, she "affirmatively states and alleges" that Kinzenbaw has a "BAC" conviction in Morgan County in 1993, a "DWI" conviction in Iowa in 1998, and a "DWI" conviction in Camden County in 1999. Attached to the director's answer and incorporated by reference is the administrative record purporting to show these convictions.

The circuit court hearing was brief; in its entirety the transcript consists of 31 lines. The prosecuting attorney representing the director said: "I would present no evidence at this time, your honor."

Kinzenbaw's attorney's entire case was: "We present no...