Lederer v. State, Dept. of Social Services, Div. of Aging, WD

• Decision Date: 11 February 1992
• Docket Number: No. WD,WD
• Citation: 825 S.W.2d 858
• Parties: Jacqueline LEDERER, Respondent, v. STATE of Missouri, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF AGING, Appellant. 44306.
• Court: Missouri Court of Appeals

Page 858

825 S.W.2d 858

Jacqueline LEDERER, Respondent, v. STATE of Missouri, DEPARTMENT OF SOCIAL SERVICES, DIVISION

OF AGING, Appellant.

No. WD 44306.

Missouri Court of Appeals,

Western District.

Feb. 11, 1992.

As Modified Feb. 27, 1992.

Rehearing Denied March 31, 1992.

Richard Beaver, Jefferson City, for appellant.

Louis Gilden, St. Louis, for respondent.

Before SHANGLER, P.J., and BERREY and HANNA, JJ.

SHANGLER, Presiding Judge.

The subject matter of this appeal is the dismissal for cause of Jacqueline Lederer from her employment at the Division of Aging of the Missouri Department of Social Services. Lederer appealed her dismissal to the Personnel Advisory Board [PAB], which affirmed the action. Lederer elected to have review of the decision by the Administrative Hearing Commission [AHC] as provided for by § 36.390.9, RSMo 1986. ¹ The AHC determined that the dismissal was not supported by competent and substantial evidence on the whole record and was otherwise defective for want of procedural due process. The AHC set aside the PAB dismissal and remanded the case to the agency for further administrative proceeding.

The Division of Aging filed a notice of appeal of the decision of the AHC in this court and concurrently a petition for judicial review in the circuit court of Cole County. That duplicate filing was prompted by indecision as to whether any provision of law placed jurisdiction of the subject matter of an appeal from an AHC review under § 36.390.9 in the court of appeals. ² The Division of Aging requested in the jurisdictional statement of the brief, and again on oral argument, that this court establish its jurisdiction by express opinion.

We determine that the court of appeals is without subject matter jurisdiction of an AHC review under § 36.390.9. We dismiss the appeal and remand the case to the AHC for further proceedings.

The right to appeal a civil judgment exists solely by virtue of statute. Bolin v. Farmers Alliance Mut. Ins. Co., 549 S.W.2d 886, 889[2, 3] (Mo. banc 1977). That right is granted by § 512.020, RSMo 1986. The review of a judgment is in the court of appeals, or where constitutionally required, in the supreme court. Mo. Const. art. V, § 3 (1945, amended 1982).

The right of judicial review of a final administrative decision that affects a private right exists by provision of constitution. Wood v. Wagner Elec. Co., 355 Mo. 670, 197 S.W.2d 647, 649[1-5] (banc 1946); Gothard v. Spradling, 586 S.W.2d 443, 445[1, 2] (Mo.App. banc 1979). That right is granted by Mo. Const. art. V, § 18 (1945, amended 1976). The procedure to give effect to that right, nevertheless, is a function of legislation or supreme court rule. City of Richmond Heights v. Board of Equalization, 586 S.W.2d 338, 342 (Mo. banc 1979). When a statute or rule provides a special method of review it is exclusive and mandatory. Blydenburg v. David, 413 S.W.2d 284, 291[11, 12] (Mo. banc 1967); Gothard v. Spradling, 586 S.W.2d at 445[1, 2].

In the usual course, and unless otherwise provided by law, a final decision of the AHC is subject to judicial review as provided in §§ 536.100 et seq. See § 621.145; Missouri Health Facilities Review Comm. v. Administrative Hearing Comm'n of Missouri, 700 S.W.2d 445, 449 (Mo. banc 1985). ³ The subject matter of that review is given to the circuit court. See § 621.145; § 536.110. In the absence of a provision by law for judicial review of an adjudication of the AHC under § 36.390.9 by the court of appeals, jurisdiction of the subject matter remains exclusively with the circuit court. The law makes no other provision.

The respondent Lederer acknowledges the plea to the jurisdiction that the Division of Aging insistently raises, but comments only: "this court does have jurisdiction pursuant to § 36.390.9." However, as we note, neither that section nor any other vests in the court of appeals review of the "review on the record" of the PAB decision that § 36.390.9 assigns to the AHC. ⁴ That response, therefore, has no validity as to a final administrative decision of the AHC. It would have validity only if the adjudication committed by § 36.390.9 to the AHC is to render a judgment as by a court. In such case, the party aggrieved by a judgment--here, the Division of Aging--is enabled by § 512.020 to take appeal "to a court having appellate jurisdiction," the court of appeals.

The AHC, however, has no power to render a judgment. That is the quintessential function of a court. Percy Kent Bag Co. v. Missouri Comm'n on Human Rights, 632 S.W.2d 480, 484 (Mo. banc 1982). A judgment is the judicial act of a court. Fleming v. Clark Township of Chariton County, 357 S.W.2d 940, 942[2-4] (Mo.1962) (emphasis added).

The AHC is not a court, but "an adjunct executive agency," that exercises agency adjudicative power, a "power [that] extends only to the ascertainment of facts and the application of existing law" to them. State Tax Comm'n v. Administrative Hearing Comm'n, 641 S.W.2d at 75. The AHC simply performs the same role "as any administrative hearing officer authorized to hear contested cases within an agency." The function intended by the legislature for the AHC is to render, on the evidence heard, the administrative decision of the agency. J.C. Nichols Co. v. Director of Revenue, 796 S.W.2d 16, 20 (Mo. banc 1990) (emphasis added). In that exercise, the AHC may discharge quasi-judicial, or even judicial powers, but only as incidents necessary to the discharge of the administrative function for which the law designed the administrative body. State Tax Comm'n v. Administrative Hearing Comm'n, 641 S.W.2d at 75. But the AHC cannot pronounce a judgment and carry it into effect. Only a court can enforce an administrative agency's order. ⁵ §§ 536.095 and 536.073.2(1); Percy Kent Bag Co. v. Missouri Comm'n on Human Rights, 632 S.W.2d at 484. The adjudication by the AHC under § 36.390.9, therefore, does not pronounce a judgment and cannot enable an appeal, and jurisdiction, in this court under § 512.020.

It remains to be determined what adjudicative function § 36.390.9 assigns to the AHC. It is from the plain meaning of words that the legislative intent of a statute is most immediately derived. Union Elec. Co. v. Director of Revenue, 799 S.W.2d 78, 79[1, 2] (Mo. banc 1990). Whatever other uncertainty remains latent in the terminology of § 36.390.9, it is clear that the function the statute assigns to the AHC is that of review of a final decision of the PAB:

... Decisions of the personnel advisory board shall be final and binding subject to appeal by either party. Final decisions of the personnel advisory board under this subsection shall be subject to review on the record by the administrative hearing commission or by the circuit court pursuant to chapter 536, RSMo, but not both, at the election of the appealing party.

It is evident from the record on appeal to this court that Jacqueline Lederer, aggrieved by the final decision of the PAB, sought and had judicial review of that adjudication by the AHC. It is as evident that the AHC understood that the role ascribed to that agency by § 36.390.9 was to give judicial review of a PAB decision as though on parity with the circuit court under chapter 536. The Memorandum and Order entered on the PAB appeal by Commissioner Spinden is a paradigm of attentive observance of the procedures and principles of judicial review of an administrative decision in a contested case. The memorandum expressly understood § 36.390.9 to require the AHC to put aside its usually exclusive function as fact-finder and to give review "on the whole record" under the standards of § 536.140.2. The adjudication entered by the AHC--that the decision of the PAB was not supported by "competent and substantial evidence on the whole record"--was formulated in terms of the direct judicial review the constitution, as well as statute, accords to a party aggrieved by an administrative decision in a contested case. Mo. Const. art. V, § 18 (1945, amended 1976); §§ 536.100--536.140.

Judicial review, however, is a purely judicial function. It is a power the constitution vests in the courts. Mo. Const. art. V, § 1 (1945, amended 1976). Courts alone have the power to say what the law is. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). Courts alone have the power to make final determinations of questions of law. Howlett v. Social Sec. Comm'n, 347 Mo. 784, 149 S.W.2d 806, 810 (banc 1941). A judicial review of a final administrative decision on the record addresses only questions of law: whether the agency action is unsupported by competent and substantial evidence upon the whole record, is unconstitutional, or in excess of statutory authority, or otherwise unauthorized by law, or upon unlawful procedure, or arbitrary, capricious or unreasonable, or involves an abuse of discretion. Mo. Const. art. V, § 18 (1945, amended 1976); § 536.140.2; Howlett v. Social Sec. Comm'n, 347 Mo. 784, 149 S.W.2d at 809[7, 8]; Phipps v. School Dist. of Kansas City, 645 S.W.2d 91, 96 n. 1 (Mo.App.1982). It is a function of adjudication the constitution vests exclusively in the courts. Howlett v. Social Sec. Comm'n, 347 Mo. 784, 149 S.W.2d at 810.

An administrative body, even a tribunal such as the AHC that performs duties judicial in nature, is not and cannot be a court in the constitutional sense. In re City of Kinloch, 362 Mo. 434, 242 S.W.2d 59, 63[4-7] (Mo.1951). Nor can the legislature create a tribunal and invest it with judicial power or convert an administrative agency into a court by the grant of a power the constitution reserves to the judiciary. State Tax Comm'n v. Administrative Hearing Comm'n, 641 S.W.2d at 75[12-14]. There is simply no validity for a premise that the AHC can lawfully function under § 36.390.9 distinctively as an appellate tribunal with the duty of review on the record of final administrative decisions by the PAB. "Any such use of AHC has no precedent elsewhere...