Ladd v. Missouri Bd. of Prob. and Parole

• Decision Date: 24 November 2009
• Docket Number: No. WD 70248.,WD 70248.
• Parties: Robert L. LADD, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Missouri Court of Appeals

299 S.W.3d 33

Robert L. LADD, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.

No. WD 70248.

Missouri Court of Appeals, Western District.

November 24, 2009.

Robert Lee Ladd, pro se.

John D. Hoelzer, Esq., Jefferson City, MO, for respondent.

Before: ALOK AHUJA, P.J., and JAMES M. SMART and LISA WHITE HARDWICK, JJ.

ALOK AHUJA, Judge.

Robert Ladd appeals the dismissal of his petition seeking judicial review of an adverse decision of the Board of Probation and Parole ("the Board"). The circuit court dismissed Ladd's petition, with prejudice, for lack of subject matter jurisdiction. Ladd asserts that the circuit court had jurisdiction to hear his petition under the Missouri Administrative Procedure Act, Chapter 536, RSMo (the "APA"). We affirm, but modify the judgment pursuant to Rule 84.14 to reflect a dismissal of Ladd's claims without prejudice.

Factual Background

Ladd was convicted of second-degree murder, first-degree robbery, kidnapping, and two counts of armed criminal action in 1984. We affirmed his convictions in State v. Ladd, 926 S.W.2d 92 (Mo.App. W.D. 1996).

Ladd came before the Board for consideration for parole in May of 2008. The Board denied parole based on its determination that releasing Ladd would improperly minimize the seriousness of his crimes and based on his "[u]se of excessive force and violence" in the commission of the offenses. In July 2008, Ladd filed a "Petition for Trial De Novo" in the Circuit Court of Cole County. He asserted that the circuit court had jurisdiction to entertain his petition under the APA. His petition alleged that the Board had abused its discretion in denying him parole, and that its decision was arbitrary, capricious, and not supported by substantial evidence in the record. The Board moved to dismiss, contending that the circuit court lacked subject matter jurisdiction. The trial court granted the Board's motion, and dismissed Ladd's petition with prejudice. This appeal followed.

Analysis

Generally, this court reviews a dismissal for lack of subject matter jurisdiction for an abuse of discretion. Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 22 (Mo. banc 2003). Where, however, "the facts are uncontested, a question as to subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo." Id.¹

I.

Ladd's first three Points Relied On assert on various theories that the Board's parole decisions are subject to judicial review under the APA. We disagree.

A.

The APA provide a baseline or default system for judicial review of administrative agency decisions. Thus, § 536.100² provides:

Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case ... shall be entitled to judicial review thereof, as provided in sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute ....

(Emphasis added.) Similarly, § 536.150.1 provides for judicial review in noncontested cases:

When any administrative officer or body ... shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, ... and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action....

(Emphasis added.)

Speaking generally, the APA's judicial review provisions are applicable where an agency's organic statutes are silent as to judicial review of its decisions, or where the organic statute fails to address particular procedural issues. Deffenbaugh Indus., Inc. v. Potts, 802 S.W.2d 520, 524 (Mo.App. W.D.1990) ("where the special statute lacks a detail of procedure necessary to the effective function of judicial review, the general provisions of §§ 536.100 to 536.140 are consulted to supply the inadequacy"). The APA's judicial review provisions do not mandate the exclusive means for review of agency decisions, but instead "fill in gaps in administrative procedures." State ex rel. Noranda Aluminum, Inc. v. Pub. Serv. Comm'n, 24 S.W.3d 243, 245 (Mo.App. W.D.2000).

Thus, "where our legislature provides specifically for judicial review of a particular administrative agency's actions, Chapter 536 would not be applicable." State ex rel. Mo. Dep't of Labor & Indus. Relations v. Lasky, 959 S.W.2d 872, 873 (Mo.App. E.D.1997). "Where a specific statute exists concerning judicial review of administrative procedures, it is to be followed exclusive of the general provisions for judicial review of administrative decisions found in Chapter 536." Hundley v. Wenzel, 59 S.W.3d 1, 4-5 (Mo.App. W.D. 2001).

Here, the Board's powers, duties, and procedures are set forth in §§ 217.650 to 217.810. State ex rel. Mitchell v. Dalton, 831 S.W.2d 942, 945 (Mo.App. E.D. 1992). Limited review of the Board's decisions is provided in § 217.670.3: "The orders of the board shall not be reviewable except as to compliance with the terms of sections 217.650 to 217.810 or any rules promulgated pursuant to such section." Because it specifically addresses the scope of review of decisions of the Board of Probation and Parole, § 217.670.3 renders the general judicial review provisions of Chapter 536 inapplicable. Cooper v. Bd. of Prob. & Parole, 866 S.W.2d 135, 137 (Mo. banc 1993) (holding that § 217.670.3 precludes judicial review of parole board determinations as noncontested cases under § 536.150.1, and under Rule 100.01); Smith v. Bd. of Prob. & Parole, 743 S.W.2d 123, 125 (Mo.App. W.D.1988).³

Ladd's petition asserts that the Board's decision was subject to de novo review under the APA and Rule 100.01. Under § 217.670.3, however, his APA claims are clearly foreclosed.⁴

B.

In his third Point Ladd argues that, even if the APA's judicial review provisions are not applicable of their own force, § 217.670.3 fails to provide a sufficient scope of review under § 536.140.2, which provides:

The scope of judicial review in all contested cases, whether or not subject to judicial review pursuant to sections 536.100 to 536.140, and in all cases in which judicial review of decisions of administrative officers or bodies, whether state or local, is now or may hereafter be provided by law, shall in all cases be at least as broad as the scope of judicial review provided for in this subsection[.]

(Emphasis added.)

By its terms, however, § 536.140.2 only applies to administrative decisions which are not otherwise subject to the APA's judicial review provisions if those decisions are rendered in contested cases. A parole hearing, as contemplated by the statutes and regulations governing the Board, does not meet the minimum indicia of a contested case. See Mitchell, 831 S.W.2d at 944. Among other attributes, a contested case implies an adversarial relationship. Id. ("[I]n using the term `hearing' in § 536.[010(4)], the General Assembly contemplated an `adversarial hearing,' and thus, the element of adversarial parties is essential to the definition of `contested case.'"). The relationship between the Board and an offender is supervisory in nature, not adversarial. Smith v. Bd. of Prob. & Parole, 743 S.W.2d 123, 125 (Mo. App. W.D.1988). Further, as Mitchell notes, "the hearing before the Board is also referred to as an `interview' of the offender, § 217.690.2, and the `evidence' relied upon by the Board is neither sworn testimony nor testimony tested by cross-examination" but is instead in the form of "statements of the offender, his or her representative, the prosecutor or the victim." 831 S.W.2d at 944. "The nature of the presentation is contemplated to be a discussion" of the factors relevant to the Board's parole decision. Id.; see also 14 C.S.R. 80-2.010(5) (hearing procedures).

Under § 536.010(4), "`[c]ontested case' means a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after a hearing." As the Missouri Supreme Court has only recently explained, "[t]he term `hearing,' as used in section 536.010([4]), means a proceeding at which a `measure of procedural formality' is followed." City of Valley Park v. Armstrong, 273 S.W.3d 504, 507 (Mo. banc 2009) (footnote and citation omitted). "In determining if a hearing comports with these formalities, the statute requiring the hearing is examined." Id. While § 217.690 requires the Board to conduct a "parole hearing" before granting parole, Armstrong demonstrates that the simple fact that a statute requires that a "hearing" be conducted prior to an administrative decision does not, standing alone, render the proceeding a "contested case." Armstrong involved § 72.403, which specifies that a "public hearing" shall be conducted by a county boundary commission before ruling on a boundary change proposal. The statute provides that, "[a]t such public hearing the city, the proposing agent and affected municipalities shall be parties, and any other interested person, corporation or political subdivision may also present evidence regarding the proposed boundary change." Despite the requirement of a "hearing," and the reference to the "present[ation] [of] evidence" at that "hearing," the Supreme Court held that, "[b]ecause section 72.403 does not provide for an adjudicatory hearing where Valley Park was permitted to try its case before the boundary commission and develop the necessary evidentiary record, the case is not a contested case." Armstrong, 273 S.W.3d at 504.

As noted above, and as held in Mitchell, the parole hearings contemplated by the relevant statutes and regulations do not require the "`measure of procedural formality'" necessary to render parole proceedings "contested cases."⁵

Relying on State ex rel. Yarber v. McHenry, 915 S.W.2d 325 (Mo. banc 1995), Ladd argues that "every case requiring a hearing is a contested case," whether or not...