Kinzenbaw v. Director of Revenue

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

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).¹ 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 evidence, your honor. We'd ask for a judgment in our favor -based upon a lack of evidence presented by the Department of Revenue."

Thereupon, the court observed that "the Director has the burden of going forward with the evidence . . . and failed to do so . . . ." When the trial court entered its written judgment in favor of Kinzenbaw the court said the department of revenue "failed to meet its burden of proof."

The director appealed. This court granted transfer after opinion by the court of appeals. We have jurisdiction. Mo. Const. art. V, section 10.

The Statutory Scheme

Section 302.311² provides an appeal to the circuit court of the driver's residence where a driver's license is suspended or application for driver's license is denied. The appeal is to be "in the manner provided by chapter 536, RSMo, for the review of administrative decisions . . . ." In the circuit court appeal, "the cause shall be heard de novo and the circuit court may order the director to grant such license, sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license."

The statute has two key directives. First, the cause is heard "de novo," a common Latin phrase meaning "anew."³ When a matter is heard "de novo," the parties start over and there is no particular deference given to prior proceedings, in this case, the administrative record on which the director's decision was based. Jenkins v. Director of Revenue, 858 S.W.2d 257, 260 (Mo. App. 1993).

The second directive of section 302.311 is that the matter is to be heard in the manner provided in chapter 536, which governs administrative appeals. In the parlance of chapter 536, there are "contested" cases and "noncontested" cases. A contested case is one where the administrative agency has rendered a decision following a hearing. Section 536.010(2); Benton-Hecht Moving & Storage, Inc. v. Call, 782 S.W.2d 670 (Mo. App. 1990). Since there was no hearing (or "contest") at the agency, Kinzenbaw's case is "noncontested" and is thus governed by section 536.150.⁴

In the context of a driver's license, the pertinent portions of the statute say that "in any such review proceeding, the court may determine the facts relevant to the question" whether the driver or applicant "had such right, or was entitled to such privilege." Further, "the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, capricious or involves an abuse of discretion . . . ."

The statutes, section 302.311 and section 536.150, construed together, do not explicitly allocate burdens of pleading and proof. In actuality, substantive statutes that are explicit in their procedural effects -such as allocating burdens of pleading and proof -are exquisite treasures. But they are rare. In most instances, including this one, courts are left to search the statutory language for clues.

There are some clues. Both sections put the burden on the aggrieved driver to "appeal" (the term used in section 302.311) or bring "suit" or "other appropriate action" (the words of section 536.150). That the proceeding is "de novo" would imply that that the person bringing the action bears burdens similar to those borne by plaintiffs or petitioners in other civil actions. And the directive, in the words of section 536.150, that the court may determine that the administrative action is "unconstitutional, unlawful, unreasonable, arbitrary or capricious, or an abuse of discretion" would likewise place the burden on the driver to show that the administrative action should be set aside for one or more such reasons. The court, according to these statutory sections, must determine "facts" and its proceeding is "de novo."

Those who enact statutes can expect that courts will allocate burdens of pleading and proof in traditional ways that show common sense, fairness and faithfulness to the statutory language and purpose.⁵

When courts discuss the burden of proof, there are two components: the burden of producing (or going forward with) evidence and the burden of persuasion. See McClosky v. Koplar, 46 S.W.2d 557, 561-63 (Mo. 1932).⁶ Cases also refer to a burden of pleading, which in most instances simply is assigned to the party with the burden of proof on an issue. See, e.g., Menzenworth v. Metropolitan Life Insurance Co., 249 S.W. 113, 115 (Mo. App. 1923).

While drafters of legislation may overlook explicit allocations of these burdens, courts cannot. The adjudicatory role makes it necessary to set forth explicitly the burdens that each party must assume...