Sovulewski v. Mo. State Bd. of Nursing

• Decision Date: 29 March 2022
• Docket Number: ED 109889
• Citation: 642 S.W.3d 373
• Parties: Katherine SOVULEWSKI, Appellant, v. MISSOURI STATE BOARD OF NURSING, Respondent.
• Court: Missouri Court of Appeals

642 S.W.3d 373

Katherine SOVULEWSKI, Appellant,

v.MISSOURI STATE BOARD OF NURSING, Respondent.

ED 109889

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: March 29, 2022

David F. Barrett, P.O. Box 104151, Jefferson City, MO 65110, for appellant.

Ryan M. Russell, 3605 Missouri Blvd., P.O. Box 656, Jefferson City, MO 65102, for respondent.

Lisa P. Page, Judge

Katherine Sovulewski (Sovulewski) appeals from the trial court's judgment affirming an order of the Missouri State Board of Nursing (Board) setting terms of probation regarding drug and alcohol testing. We reverse and remand.

BACKGROUND

Sovulewski first received her license from the Board as a Registered Nurse (RN) in 2005. In early 2012, her employer discovered she was taking Hydromorphone home with her. She tested positive for the drug and resigned. The Board placed her nursing license on probation for a period of five years with specified terms and conditions. On June 9, 2016, the Board revoked Sovulewski's license for violating the terms of her probation multiple times by failing to check in with a third-party administrator and testing positive for metabolites of alcohol.

In late 2017, Sovulewski reapplied to the Board for an RN license, which was denied on May 2, 2018. Sovulewski appealed the Board's decision to the Administrative Hearing Commission (AHC). After a hearing, the AHC issued its decision. Although it found cause to deny Sovulewski's license on multiple grounds, the AHC exercised its discretion to grant her application for a license subject to a three-year probationary period, concluding:

Sovulewski presented sufficient evidence to convince us to exercise our discretion and grant her application for a license. We believe that a three-year probationary period is appropriate for the protection of the public. The terms of probation should include a prohibition on the consumption of controlled substances for which Sovulewski does not have a legitimate prescription and a prohibition on working under the influence of alcohol. Monitoring shall include drug and alcohol testing at the discretion of the Board.

On January 31, 2020, the Board issued an order pursuant to the AHC's decision setting forth the terms of Sovulewski's probation (Probation Order). The Probation Order required daily check-ins with a third-party administrator and submitting to random drug and alcohol testing, and inter alia , stated:

I. During the disciplinary period, Licensee shall abstain completely from the use or consumption of alcohol in any form, including over the counter products. The presence of any alcohol whatsoever in any biological sample obtained from the Licensee, regardless of the source, shall constitute a violation of Licensee's discipline.

Sovulewski filed a petition in the circuit court of Jefferson County seeking judicial review of the Probation Order pursuant to Sections 536.100 through 536.140 RSMo (2016).¹ The trial court considered the case on the basis of the record developed before the AHC and took no additional evidence. The trial court entered its judgment on July 20, 2021, finding:

Great deference is given to administrative decisions. The reviewing court must not substitute its judgment on factual matters for that of the administrative agency. Owens v. Missouri State Board of Nursing, 474 S.W.3d 607, 611 (Mo. App. W.D. 2015). The Court cannot substitute its judgment for that of the agency, and "when the evidence before the administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination ...." Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012). In this case, the Board of Nursing granted a license to the Petitioner, but did so on a probationary basis due to the Petitioner's previous substance abuse issues. The Court finds that the action of the Commission is reasonable and appropriate under the circumstances in order to ensure the safety of patients and to help the Petitioner maintain her sobriety.

The Court has reviewed the Administrative Hearing Commission's Decision and finds that the action of the agency is not (1) in violation of any constitutional provisions, (2) in excess of the agency's statutory authority or jurisdiction, (3) unsupported by competent and substantial evidence upon the whole record, (4) unauthorized by law, (5) made upon unlawful procedure or without a fair trial, (6) arbitrary, capricious or unreasonable, or (7) an abuse of discretion.

The trial court affirmed the AHC's decision in all respects. Sovulewski appeals.

DISCUSSION

Sovulewski raises two points on appeal. First, she argues the Board erred in imposing probationary terms on her nursing license that exceeded those allowed by the AHC's decision. Second, she asserts the Board erred in imposing probationary terms on her nursing license that violated her rights under the Americans with Disabilities Act.

However, Sovulewski made a fundamental error in characterizing this matter as a contested case, which was not challenged by the Board nor corrected by the trial court. This improper characterization renders us unable to review either of the points raised. Thus, we reverse and remand this case for further proceedings pursuant to non-contested case procedures.

Analysis

A court's first step in exercising judicial review over a governmental agency's action pursuant to the Missouri Administrative Procedure Act (MAPA) is to determine the scope of its review. See e.g. , Johnston v. Livingston Cnty. Comm'n , 462 S.W.3d 859, 864 (Mo. App. W.D. 2015) ; 450 N. Lindbergh Legal Fund, LLC v. City of Creve Coeur, Missouri , 477 S.W.3d 49, 52 (Mo. App. E.D. 2015). The court must first consider, as a matter of law, whether the agency action was a "contested" or "non-contested case." State ex rel. Robison v. Lindley-Myers , 551 S.W.3d 468, 471 (Mo. banc 2018) ; 450 N. Lindbergh Legal Fund, LLC , 477 S.W.3d at 52 ; City of Valley Park v. Armstrong , 273 S.W.3d 504, 506 (Mo. banc 2009). A contested case is "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing." Section 536.010(4). A non-contested case is "a decision that is not required by law to be determined after a hearing." Lindley-Myers , 551 S.W.3d at 471 (quoting Furlong Cos., Inc. v. City of Kan. City , 189 S.W.3d 157, 165 (Mo. banc 2006) ).

The standard of review, record, and procedures under which a trial court conducts its review differ significantly depending on whether the case is "contested" or "non-contested." Holden v. Dep't of Com. & Ins. , 590 S.W.3d 878, 883 (Mo. App. W.D. 2019).

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.

Armstrong , 273 S.W.3d at 506-07 (internal citations omitted) (quoting Furlong , 189 S.W.3d at 165 ).

Moreover, the characterization of a case as contested or non-contested does not merely affect the procedures required before the agency or in the trial court; it also affects the manner in which an appellate court conducts its review on appeal. Holden , 590 S.W.3d at 886. "The choice of what decision we review, on what record , and under what standard , are all dictated by the nature of the underlying administrative proceeding." Id. (emphasis in original). In order to properly perform our appellate function in a judicial review proceeding, we must first determine whether the underlying administrative case was contested or non-contested, even if the parties do not raise the issue. Id.

Sovulewski challenges the terms of probation set forth in the Board's Probation Order. She petitioned for judicial review in the trial court pursuant to the contested case procedures set forth in Sections 536.100 through 536.140. The Board did not dispute Sovulewski's characterization. The trial court considered the AHC's decision to grant a probationary license on the basis of the record developed before the AHC. The trial court did not hear any evidence or make its own factual determinations and found the action of the AHC was reasonable and appropriate under the...