Missourians for Separation of Church and State v. Robertson, KCD
| Citation | 592 S.W.2d 825 |
| Decision Date | 03 December 1979 |
| Docket Number | No. KCD,KCD |
| Parties | MISSOURIANS FOR SEPARATION OF CHURCH AND STATE, a corporation, and James L. Atwell, James T. Blair, Roger D. Briggs, W. Ross Edwards, Junior Jean Osborn, Ruby Reich, James Tatum, and G. Hugh Wamble, Plaintiffs-Appellants, v. Bruce ROBERTSON, Commissioner of Higher Education, Virginia G. Young, Chairman, Lela H. Bell, John H. Biggs, Richard J. Blanck, Joe T. Buerkle, Clarence K. Fulton, Jr., F. William McCalpin, H. Lang Rogers, and Eugene M. Strauss, Members, the Coordinating Board for Higher Education, and Central Methodist College, Culver-Stockton College, Fontbonne College, Rockhurst College, Southwest Baptist College, Wentworth Military Academy, Westminster College, William Jewell College, William Woods College, Defendants-Respondents. 30164. |
| Court | Court of Appeal of Missouri (US) |
Harry D. Dingman, Kuraner, Dingman, Schwegler, Kinton & Lowe Professional Corp., Kansas City, for plaintiffs-appellants.
John D. Ashcroft, Atty. Gen., J. Paul Allred, Jr., William F. Arnet, Asst. Attys. Gen., Jefferson City, for state officials.
Dick H. Woods, George E. Feldmiller, Mark S. Foster, Kansas City, for S. W. Baptist College.
Michael G. Biggers and T. C. Walsh, Bryan, Cave, McPheeters & McRoberts, St. Louis, D. Brook Bartlett, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for other colleges.
Before SHANGLER, P. J., WASSERSTROM, C. J., and CLARK, J.
The plaintiffs Missourians for Separation of Church and State and G. Hugh Wamble, among other principals, bring suit as taxpayers and as advocates of the separation of church and state for declaratory judgment and injunction against the defendants Robertson as Commissioner of Higher Education, other state officials, and institutional beneficiaries of the Financial Assistance Program (§§ 173.200 to 173.230, Laws 1972, p. 763, §§ 1-7). The enactment formally declares the purpose of the Program as a means of financial assistance to enable qualified students for Nonreligious instruction in a public or private institution of higher education of choice. The petition seeks adjudication that the defendants unlawfully administer the Program by practices and failure of rules in a manner contrary to the definition of statute and constitutional principles of separation of church and state, and that the defendants be enjoined from the unlawful conduct. 1
The petition was challenged by motions to dismiss on grounds (1) that the joinder of the state officials was indispensable to the cause of action so that venue lay properly in Cole County, (2) that the defendant Wentworth Military Academy was without sectarian affiliation and so not affected by the pleading or prayer of the petition, and (3) that as to the remainder defendants the petition challenges a CBHE action in a Contested case within the Administrative Procedure and Review Act so that any standing for access to a court or jurisdiction for judicial review lapsed to the plaintiffs by failure to file a petition within thirty days The motions to dismiss were contested by a catalogue of documents submitted to the trial court --- affidavits, interrogatories, exchange of correspondence among the principals --- and received as evidence.
of decision according to the terms of § 536.110, RSMo 1978. 2
The court ordered the petition dismissed as to the state officials for want of venue, as to Wentworth Military Academy for failure to allege an interest subject to adjudication, and as to the remainder defendants (save Wentworth which did not join the assertion) for lack of jurisdiction. 3
At the outset, the appeal confronts yet another motion to dismiss, this time on procedural grounds. The several defendants challenge the three volumes of exhibits as an extraneous, prolix and largely irrelevant documentation. They refused to stipulate to that library of documents as an Exhibits Transcript and now contend that, absent agreement, the lodgement of those papers on appeal violates Rule 81.15. The argument misunderstands the sense of that procedure. Rule 81.15 merely provides that the parties "May stipulate that all or any part of the original exhibits May be omitted from the transcript on appeal and be separately filed in the appellate court." (Emphasis added.) The terms of Rule 81.15 require enlistment of agreement only to Omit an exhibit from the transcript, and not to include them all. The contention defendants make would have validity were the Exhibits Transcript a record separately filed in the appellate court. The discursive, as well as the exhibits, transcript was disputed. The controversy was submitted under Rule 81.12 to the trial court who, by order, approved "the Transcript on Appeal and the Exhibits Transcript." The formal approval leaves no doubt that the sanction was to a unitary record the "Transcript on Appeal, including the Exhibits Transcript referenced (there)in." A party has no need for adversary agreement to file on appeal a complete transcript of the proceedings. In any event, a violation of Rule 81.15 even if shown incurs a discipline less drastic than peremptory dismissal. Rule 84.04.
The defendants contend also that the voluminous documentation of the Exhibits Transcript violates the provision of Rule 84.14 that the transcript shall contain "all the record, recitals, proceedings, and evidence Necessary to the determination of all questions presented to the appellate court for decision." The defendants advert, once again, to the massiveness of the 568 page array of exhibits to demonstrate the inherent irrelevancy of such an agglutination. The question is not the ponderousness of a transcript, but whether the inclusions are Necessary to a decision of the issues on appeal. Any controversy as to the necessary relation of one to the other as well as other compliances with the rules on transcripts was settled by the approval by the trial court under Rule 81.12. We are bound by that determination. Lewis v. Hubert, 532 S.W.2d 860, 867(15) (Mo.App.1976). The defendants seek dismissal of the appeal or, we assume, merely to efface the Exhibits Transcript. An appellate court may order a supplement to the transcript, but absent accident, inadvertence or mistake not a deletion. Rule 81.12(c).
The defendants ardently pursue the contention of an irrelevant Exhibits Transcript. That contention lacks diffidence. A motion to dismiss does not self-prove the issue. Randall v. St. Albans Farms, Inc., 345 S.W.2d 220, 223(2) (Mo.1961). When the motion rests on facts not of record, a court may (and did) hear the matter on affidavit. Rule 55.28. The three motions to dismiss ruled by the court for the defendants, as we conclude, entail an entwinement of facts To be sure, a most casual glance through the Exhibits Transcript discloses much that does not qualify as competent evidence. The defendants, however, do not differentiate but condemn the entire assortment of documents. They do not mean, so we assume, to forgo those upon which the adjudication for dismissal rests, but that is the consequence. The defendants did not accept the rightful initiative the law imposes to demonstrate to the trial court the transcript inclusions not necessary to the determination of the questions on appeal. They have not proved a noncompliance by plaintiffs with Rule 81.14.
not inferable from the bare pleadings alone. The questions of venue and the nature of the judicial process open to those in the posture of the plaintiffs, among others, are defined in terms of the remedy the plaintiffs have undertaken to employ which, in turn, is demonstrated by the interchanges between Wamble and his associates with the CBHE officials. That is the import of many of the exhibits. The defendants understand that their burden to prove the motions required evidence. They even understand that the source for that evidence is the Exhibits Transcript to which Every defendant resorts to prove the several motions to dismiss. We need not conclude, but confidently surmise, that absent this proof, the trial court would not have adjudicated the dismissal motions for the defendants.
Another contention for dismissal of appeal cites violation of Rule 84.04. The brief of the plaintiffs does not show fastidious concern for some elementary aspects of appellate advocacy. The rubrics do not announce the points relied on but rather, arguments and authorities; the statement of points even in that guise is less than the "wherein and why" of the trial court error the rule contemplates. The exposition and argument, however, leave no doubt as to the error contended or the reasons why the decision should not stand. The meticulous development of the argument leaves no doubt as to the points on appeal. A respondent cannot be misled by the formal lapses the defendants cite. They fall far short of those condemned in Geiler v. Boyer, 483 S.W.2d 773 (Mo.App.1972) and those other authorities the defendants rely on. It would not subserve justice to strike the brief of the appellants or to dismiss the action on account of those, or other, derelictions the defendants cite.
The motions of the several defendants to dismiss the appeal for failure to comply with the rules of appellate procedure are overruled for the reasons given.
The Missouri Financial Assistance Program (§§ 173.200 to 173.230) was established by the Laws of 1972 to enable qualified students to receive money grants for nonreligious instruction in an approved public or private college of choice. § 173.200. The administration of the Program was given to a Coordinating Board for Higher Education (CBHE) with the power to promulgate reasonable rules and regulations for the accomplishment of the statutory purpose. § 173.210. An Approved private institution within the definition of statute means (§ 173.205(2)):
(A) nonprofit...
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