MISSOURI REAL ESTATE COM'N v. Rayford

• Decision Date: 13 April 2010
• Docket Number: No. WD 70723.,WD 70723.
• Citation: 307 SW 3d 686
• Parties: MISSOURI REAL ESTATE COMMISSION, Appellant, v. KENNETH G. RAYFORD, Respondent.
• Court: Missouri Court of Appeals

307 S.W.3d 686

MISSOURI REAL ESTATE COMMISSION, Appellant, v. KENNETH G. RAYFORD, Respondent.

No. WD 70723.

Missouri Court of Appeals, Western District.

April 13, 2010.

Craig H. Jacobs, Jefferson City, MO, for appellant.

Mark S. Bryant, Kansas City, MO, for respondent.

Before Division Four: THOMAS H. NEWTON, Chief Judge, Presiding, JAMES M. SMART, JR., Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

Missouri Real Estate Commission (MREC) appeals from the Missouri Administrative Hearing Commission's (AHC) decision holding that Kenneth Rayford was entitled to retain his real estate salesperson's license. MREC contends that section 339.100.5,¹ which became effective in 2006, mandates the revocation of Rayford's license, which he secured in 2003 or 2004, because of a 1970 conviction for second degree murder. We affirm.

Factual and Procedural History

On April 24, 1970, nineteen-year-old Rayford pleaded nolo contendere to second degree murder and was sentenced to thirty years in prison. While in prison, Rayford earned degrees in psychology and sociology. In 1988, Rayford was released from prison. In 1993, Rayford was released from parole. Rayford enrolled in real estate school and subsequently applied for a real estate salesperson's license. In his application, Rayford disclosed his prior conviction for second degree murder. In approximately 2003 or 2004, after a thorough investigation by MREC, Rayford was issued his real estate license and has never been subject to discipline.

On August 28, 2006, section 339.100.5 took effect. It provides that "a broker or salesperson's license shall be revoked, or in the case of an applicant, shall not be issued, if the licensee or applicant has pleaded guilty to, entered a plea of nolo contendere to, or been found guilty of ... any dangerous felony as defined under section 556.061, RSMo."² By its terms, section 339.100.5 applies to two categories of individuals — brokers and salespersons who are already licensed, and applicants seeking licensure.

On May 4, 2007, MREC revoked Rayford's license in reliance on section 339.100.5. Rayford appealed the revocation to the AHC. On November 19, 2007, the AHC determined that section 339.100.5 did not require revocation of Rayford's license. Specifically, the AHC construed section 339.100.5 to exclude from its coverage "a licensee who held a license on August 28, 2006,³ but not when the criminal proceeding occurred." Because Rayford fell within this narrow exception, the AHC concluded his license was not subject to mandatory revocation.

On December 19, 2007, MREC appealed the AHC's decision to the trial court. On January 15, 2009, the trial court affirmed the decision of the AHC. MREC appeals.

Standard of Review

Our review of an administrative agency decision interpreting a statute is de novo. Morton v. Brenner, 842 S.W.2d 538, 540 (Mo. banc 1992). "We review the decision of the Commission, not the judgment of the trial court." State Bd. of Registration for Healing Arts v. Boston, 72 S.W.3d 260, 263 (Mo.App. W.D.2002).

Analysis

In its sole point on appeal, MREC contends that the AHC erred in holding that section 339.100.5 does not mandate the revocation of Rayford's license. MREC argues that the AHC improperly interpreted section 339.100.5 to exclude persons like Rayford because section 339.100.5 as written reflects a plain and clear legislative intent to subject all licensees to its terms, including licensees who pleaded to, or were found guilty of, a qualifying criminal offense prior to the statute's effective date, regardless whether licensed at the time. MREC also contends that retroactive application of section 339.100.5 does not violate the prohibition against retrospective laws set forth in article I, section 13 of the Missouri Constitution. The AHC did not discuss this issue, as the AHC is not statutorily authorized to evaluate constitutional principles or to declare a statute invalid. State Tax Comm'n v. Admin. Hearing Comm'n, 641 S.W.2d 69, 75 (Mo. banc 1982). MREC concedes that section 339.100.5 has been applied retroactively to Rayford. Thus, we will begin our analysis with the issue the AHC could not reach — the constitutionality of this retroactive application.

Retroactive Application of Section 339.100.5

Article I, section 13 of the Missouri Constitution provides "that no ex post facto law, nor law ... retrospective in its operation ... can be enacted. This area of the law makes use of the terms ex post facto, retrospective and retroactive." State v. Thomaston, 726 S.W.2d 448, 459 (Mo.App. W.D.1987). There is a distinct and legally material difference in the meaning of these terms, though the terms are often misused by both bench and bar. Id. "The term ex post facto is a term applicable to criminal legislation only ... while the term retrospective refers exclusively to laws related to civil rights and remedies." Id. Though the terms retroactive and retrospective are frequently interchanged, in fact they are not synonymous. "A law is `retroactive' in its operation when it looks or acts backward from its effective date and is retrospective `if it has the same effect as to past transactions or considerations as to future ones. ...'" Id. at 459-60, (quoting State ex rel. Meyer v. Cobb, 467 S.W.2d 854, 856 (Mo.1971)). In other words, "`the constitutional inhibition against laws retrospective in operation ... does not mean that no statute relating to past transactions can be constitutionally passed, but rather, that none can be allowed to operate retrospectively so as to affect such past transactions to the substantial prejudice of parties interested.'" Id. at 460 (quoting Fisher v. Reorganized Sch. Dist. No. R-V of Grundy County, 567 S.W.2d 647, 649 (Mo. banc 1978)). Our Missouri Supreme Court has defined "retrospective law" as: "a law is retrospective in operation if it takes away or impairs vested or substantial rights acquired under existing laws or imposes new obligations, duties, or disabilities with respect to past transactions." Hess v. Chase Manhattan Bank, 220 S.W.3d 758, 769 (Mo. banc 2007) (citing Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338, 340 (Mo. banc 1993)) (emphasis added).⁴ Conversely, "when a law makes only a procedural change, it is not retrospective and hence can be applied retroactively." Thomaston, 726 S.W.2d at 460; See Scheidegger v. Greene, 451 S.W.2d 135, 137 (Mo. banc 1970) (stating article I, section 13 does not apply to statutes dealing only with procedural or remedial matters).

Thus, to determine whether retroactive application of section 339.100.5 to persons like Rayford is constitutionally permissible, we must determine if section 399.100.5 is retrospective. In other words, we must determine whether section 339.100.5 either takes away or impairs a vested or substantial right or imposes a new obligation, duty, or disability with respect to a past transaction. F.R. v. St. Charles County Sheriff's Dep't, 301 S.W.3d 56, 61-62 (Mo. banc 2010)⁵ (stating references to vested rights or new obligation, duty or disability are disjunctive options, and finding of retrospective application can be based on either option).

(i) Vested or Substantial Right

MREC contends that Rayford has no vested or substantial right to hold a real estate salesperson's license. We agree.

In Fisher, our Supreme Court noted that "a vested right `... must be something more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another.'" 567 S.W.2d at 649 (quoting People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318, 321 (1939)). A vested right has been described as a right with an "`independent existence, `in the sense that once it vests it is no longer dependent for its assertion upon the common law or statute under which it may have been acquired." Ficarra v. Dep't of Regulatory Agencies, 849 P.2d 6, 15 (Colo.1993) (citation omitted). "Vested right" is defined as a "right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs, and fixed or established, and no longer open to controversy." Black's Law Dictionary 1402 (5th ed.1979).

Applying these principles, we cannot conclude that a professional license of any kind represents a vested right. Though we have been unable to locate a Missouri case with facts similar to those before us involving revocation of a professional license based solely on an antecedent conviction, it has been stated in other Missouri decisions that a professional license is not a vested right, but rather a privilege. Boston, 72 S.W.3d at 266 (professional license is a privilege granted by the state); State ex rel. Schneider's Credit Jewelers v. Brackman, 260 S.W.2d 800, 814 (Mo.App.1953) (professional license in the healing arts is a privilege), preliminary writ made absolute, 272 S.W.2d 289 (Mo. banc 1954). Other Missouri decisions have held there is no vested right to practice a particular profession or to hold a particular professional license. State Bd. of Registration for the Healing Arts v. Giffen, 651 S.W.2d 475, 479 (Mo. banc 1983); State v. Davis, 194 Mo. 485, 92 S.W. 484, 489 (1906) ("There can be no such thing as a vested right in the practice of medicine.").

Other jurisdictions have similarly concluded that professional licenses and licenses to operate a business do not create a vested right. See Dep't of Health & Mental Hygiene v. VNA Hospice of Md., 176 Md.App. 475, 933 A.2d 512, 521-22 (2007) (vacated on other grounds by 406 Md. 584, 961 A.2d 557 (Md.Ct. Spec.App.2008)) (citations summarizing holdings from numerous other jurisdictions omitted). "It has been said that a professional license is not `an absolute vested right,' but is at...