Sapp v. City Of St. Louis

• Decision Date: 13 July 2010
• Docket Number: No. ED 93728.,ED 93728.
• Citation: 320 S.W.3d 159
• Parties: Phillip SAPP, Appellant,v.CITY OF ST. LOUIS, et al., Respondents.
• Court: Missouri Court of Appeals

320 S.W.3d 159

Phillip SAPP, Appellant,v.CITY OF ST. LOUIS, et al., Respondents.

No. ED 93728.

Missouri Court of Appeals,

Eastern District,

Division Two.

July 13, 2010.

Charles W. Bobinette, St. Louis, MO, for Appellant.

Patricia L. Hageman, City Counselor, Christine L. Hodzic, Asst. City Counselor, St. Louis, MO, for Respondent.

ROBERT G. DOWD, JR., Judge.

Phillip Sapp (“Sapp”) appeals from the judgment of the circuit court dismissing his petition for administrative review for lack of subject matter jurisdiction. We reverse and remand.

Sapp was employed by the Division of Corrections for the City of St. Louis (“the City”) as a Corrections Officer II. On December 5, 2007, Sapp reported an inmate count of seventy-nine, and it was subsequently determined that there were eighty inmates in Sapp's assigned housing unit. As a result of Sapp's actions, there was a recount, and Sapp admitted he did not physically conduct a count of the housing unit prior to the calling of the count, which was a violation of the policies of the Division of Corrections.

The Division of Corrections brought charges against Sapp because of this incident. The immediate appointing authority subsequently advised Sapp of charges against him. Sapp was given an explanation of the evidence, and was given an opportunity to present his defense. For his violation of the counting policy, the appointing authority gave him a four-day suspension without pay to be served from February 11-14, 2008.

Sapp subsequently appealed to the Civil Service Commission (“the Commission”), which reviewed and considered the written statement of the appointing authority, Sapp's written response, and the appointing authority's final written response. The Commission found Sapp was advised of the charges against him, given an explanation of the evidence, and given an opportunity to present his defense. On July 2, 2008, the Commission issued findings of fact and conclusions of law and upheld Sapp's suspension.

On September 12, 2008, Sapp filed a petition for administrative review in the circuit court under Section 536.150, RSMo 2000.¹ Sapp argued the Commission's decision was against the overwhelming weight of the competent and substantial evidence. In particular, he argued he did not violate any work rule by failing to make an independent count of the inmates, and, at the time of the count, he was responding to a medical emergency in Housing Unit 3 Bravo and was escorting an inmate to the medical unit with the approval of his supervisor.

The City filed a motion to dismiss, arguing the circuit court lacked subject matter jurisdiction because Sapp's petition sought review under Section 536.150.² The City claimed this was a contested case reviewable according to the provisions of Section 536.110.³ Section 536.150 does not allow for review of administrative decisions in contested cases.

Sapp then filed a motion for leave to file his first amended petition for administrative review, seeking to plead he was entitled to review under the contested and non-contested provisions of Chapter 536. His motion for leave was denied.

The circuit court found the case was a contested case and, as such, review was not appropriate under Section 536.150. Further, the circuit court found the Commission's final decision was dated July 18, 2008, and Section 536.110 provided that Sapp had thirty days after the mailing or delivery of the notice of the final decision to file a petition for administrative review in the circuit court. However, Sapp did not file his petition until September 12, 2008, and thus, the circuit court concluded it did not have jurisdiction and it dismissed Sapp's petition for administrative review. This appeal follows.

Initially, we note the City has filed a motion to dismiss pursuant to Section 536.110.1 contending that this court has no subject matter jurisdiction over this case, and this motion has been taken with the case.

Where the facts are uncontested, a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo. McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473, 476 (Mo. banc 2009).

In its motion to dismiss, the City argues the Commission's decision upholding Sapp's four-day suspension was mailed on July 19, 2008. However, Sapp did not file an appeal in the circuit court until September 12, 2008. Thus, the City asserts because Sapp's case was a contested case as set forth in Section 536.110, Sapp failed to timely appeal the decision of the Commission within thirty days of the mailing of the notice of the administrative decision as required by Section 536.110.1. The City concludes because the circuit court lacked subject matter jurisdiction, this court also lacks jurisdiction.

In order to rule on the City's motion to dismiss, we must determine whether Sapp's case was a contested or non-contested case. The City asserts this matter was a contested case while Sapp contends it was non-contested. Because this determination is also at issue in Sapp's first and second points, we will begin by evaluating these points together.

In his first point, Sapp argues the circuit court erred in dismissing his petition because the circuit court had jurisdiction to review Sapp's four-day suspension without pay under Section 536.150 as a non-contested case because he had no statutory or constitutional right to an evidentiary hearing before the Commission. In his second point, Sapp alternatively argues the circuit court erred in dismissing his petition because the circuit court had jurisdiction to review Sapp's four-day suspension without pay under Section 536.150 as a contested case because the Commission's decision was void in that Sapp was not afforded a contested case hearing.

Determining whether an administrative proceeding is a contested or non-contested case is not left to the discretion of the administrative body, but is, rather, determined as a matter of law. State ex rel. School Dist. of Kansas City v. Williamson, 141 S.W.3d 418, 426 (Mo.App. W.D.2004).

Contested case review is controlled by sections 536.100 to 536.140. Contested cases provide the parties with an opportunity for a formal hearing with the presentation of evidence, including sworn testimony of witnesses and cross-examination of witnesses, and require written findings of fact and conclusions of law. The review of a contested case is a review by the trial court of the record created before the administrative body. The trial court's decision upon such review is appealable, but the appellate court also looks back to the record created before the administrative body.

Non-contested cases do not require formal proceedings or hearings before the administrative body. As such, there is no record required for review. In the review of a non-contested decision, the circuit court does not review the administrative record, but hears evidence, determines facts, and adjudges the validity of the agency decision. Under the procedures of section 536.150, the circuit court conducts such a hearing as an original action.

In either a contested or a non-contested case the private litigant is entitled to challenge the governmental agency's decision. The difference is simply that in a contested case the private litigant must try his or her case before the agency, and judicial review is on the record of that administrative trial, whereas in a non-contested case the private litigant tries his or her case to the court. Depending upon the circumstances, this difference may result in procedural advantages or disadvantages to the parties, but in either situation, the litigant is entitled to develop an evidentiary record in one forum or another.

City of Valley Park v. Armstrong, 273 S.W.3d 504 (Mo. banc 2009) quoting

Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157, 165 (Mo. banc 2006) (internal citations omitted).

Under Section 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.” The term “hearing,” as used in section 536.010(4), means a proceeding at which a “measure of procedural formality” is followed. Ladd v. Missouri Bd. of Probation and Parole, 299 S.W.3d 33, 38 (Mo.App. W.D.2009). Procedural formalities in contested cases generally include: “notice of the issues (section 536.067); oral evidence taken upon oath or affirmation and the cross-examination of witnesses (section 536.070); the making of a record (section 536.070); adherence to evidentiary rules (section 536.070); and written decisions including findings of fact and conclusions of law (section 536.090).” City of Valley Park v. Armstrong, 273 S.W.3d 504, (Mo. banc 2009). The “law” referred to in the contested case definition encompasses any statute or ordinance, or any provision of the state or federal constitutions that mandates a hearing. State ex rel. Yarber v. McHenry, 915 S.W.2d 325, 328 (Mo. banc 1995). In determining if a hearing comports with these formalities, the statute, ordinance, or constitutional provision requiring the hearing is examined. See Ladd, 299 S.W.3d at 38. Where the State grants an employee a right or expectation that adverse action will not be taken against him except upon the occurrence of specified behavior, the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed. See Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) and Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). These minimum requirements are a matter of federal law, and they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action. Id.

Here, there is no statute or ordinance requiring a...