State ex rel. Miss. Lime v. MISSOURI AIR CONSERVATION COMM.

• Decision Date: 30 November 2004
• Docket Number: No. WD 63827.,WD 63827.
• Citation: 159 S.W.3d 376
• Parties: STATE ex rel. MISSISSIPPI LIME COMPANY, Relator/Appellant, v. MISSOURI AIR CONSERVATION COMMISSION, Respondent.
• Court: Missouri Court of Appeals

159 S.W.3d 376

STATE ex rel. MISSISSIPPI LIME COMPANY, Relator/Appellant, v. MISSOURI AIR CONSERVATION COMMISSION, Respondent.

No. WD 63827.

Missouri Court of Appeals, Western District.

November 30, 2004.

Motion for Rehearing and/or Transfer Denied February 1, 2005.

Application for Transfer Denied April 26, 2005.

Byron Edward Francis, James Kent Lowry and Cynthia Ann Sciuto, St. Louis, for Appellant.

Marshall Wilson, Robert Wilkinson and Colleen Michuda, Jefferson City, for Respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 1, 2005.

PAUL M. SPINDEN, Judge.

Mississippi Lime Company appeals the circuit court's judgment quashing its preliminary writ of prohibition and denying its request for a writ of prohibition. Mississippi Lime asked the circuit court to prohibit the Missouri Air Conservation Commission from enforcing its order directing Mississippi Lime to respond to discovery requests propounded by its competitor, Chemical Lime Company, in this action in which Mississippi Lime seeks a permit to construct two new kilns. We affirm the circuit court's judgment.

This dispute grows out of the Department of Natural Resources' issuance of a permit on December 13, 2002, authorizing Mississippi Lime to construct the kilns at its manufacturing plant near Ste. Genevieve. On January 10, 2003, pursuant to § 643.075.6, RSMo 2000, Chemical Lime petitioned the commission to review the department's permit. The commission appointed Karen Winn, commissioner for the Administrative Hearing Commission, to serve as hearing officer in this case.¹ The commission also delegated to Winn the authority to rule on all motions.

During proceedings before Winn, Mississippi Lime and Chemical Lime began quarrelling over Chemical Lime's discovery request. Chemical Lime requested all information that Mississippi Lime submitted to the department in connection with its application for the permit, including the information that, pursuant to 10 CSR 10-6.210, the department had concluded was entitled to protection as confidential. Chemical Lime also sought discovery of information in Mississippi Lime's possession that the department had neither requested nor reviewed in determining whether to issue the permit. Mississippi Lime objected to Chemical Lime's discovery requests on the grounds that Chemical Lime sought confidential business information and sought information that was not relevant to any issue raised by Chemical Lime's petition for review. Chemical Lime filed motions requesting Winn to compel the department and Mississippi Lime to respond to its discovery requests. Mississippi Lime and the department responded, and Mississippi Lime filed a motion for a protective order to safeguard the confidentiality of the discovery produced to Chemical Lime should Winn overrule Mississippi Lime's objections.

At a hearing on the motions on October 6, 2003, Mississippi Lime requested that, if Winn overruled its objections, Winn conduct an in camera review of the documents deemed confidential so she could determine the relevancy of the requested information and whether or not the documents should be protected as confidential. On October 16, 2003, Winn substantially overruled Mississippi Lime's objections but granted its request for a protective order.² She declined Mississippi Lime's request for an in camera review of the documents and concluded that Mississippi Lime was adequately protected by her protective order.

Mississippi Lime asked the commission to hold a hearing to consider Winn's rulings. It asserted that the commission, and not Winn acting unilaterally, should determine the threshold issue of whether or not confidential business information that Chemical Lime requested was relevant to Chemical Lime's petition for review. Mississippi Lime further argued that the confidentiality of its business information had to be preserved until a court or other tribunal of competent jurisdiction finally determined whether or not the information was entitled to protection as confidential. The commission denied Mississippi Lime's motion and ordered Mississippi Lime to respond to Chemical Lime's discovery requests.

Mississippi Lime then filed this petition for a writ of prohibition. It alleged that Winn had exceeded her authority by ordering it to produce information that the department had determined was confidential. It asserted that the commission was required to review the requested information and to make a confidentiality determination before ordering Mississippi Lime to produce the information. Mississippi Lime requested the circuit court to issue a writ of prohibition prohibiting the commission from enforcing its order compelling Mississippi Lime to respond to Chemical Lime's discovery requests.

The circuit court issued a preliminary writ of prohibition on December 1, 2003. On January 12, 2004, the circuit court entered judgment quashing its preliminary writ and denying Mississippi Lime's petition for a writ of prohibition. The circuit court found that Winn had not abused her discretion in compelling Mississippi Lime to produce its confidential business information subject to a protective order and in determining that the information Chemical Lime sought was reasonably calculated to lead to the discovery of admissible evidence. Mississippi Lime appeals.

1. Jurisdiction

Article V, § 18, of Missouri's constitution says that, unless a statute or other law provides to the contrary, the Supreme Court shall provide rules directing how the judiciary is to review final administrative decisions, findings, rules and orders. In Rule 100.01, the Supreme Court has directed that "[t]he provisions of sections 536.100 through 536.150, RSMo, shall govern procedure in circuit courts for judicial review of actions of administrative agencies unless the statute governing a particular agency contains different provisions for such review."

The General Assembly created the Air Conservation Commission in statutes codified in Chapter 643 of the Revised Statutes and directed that the commission's "final orders or determinations" be reviewable pursuant to the Administrative Procedure Act. Section 643.130, RSMo 2000. Orders and determinations are "final" when they terminate the commission's involvement in a case and completely resolve the issues presented. Dore and Associates Contracting, Inc. v. Missouri Department of Labor and Industrial Relations Commission, 810 S.W.2d 72, 75-76 (Mo.App.1990).

This case does not involve a final order or final determination. Mississippi Lime sought the circuit court's review of the commission's discovery order.

"An important exception," however, "to the constitutional and statutory constraints placed on judicial review of administrative action is the power of the courts to issue and determine original remedial writs against administrative officers and bodies." I MO. ADMINISTRATIVE LAW § 7.1 (MoBar 3rd ed.2000). Indeed, Article V, § 4.1, of Missouri's constitution grants to the Supreme Court and to this court the power to "issue and determine original remedial writs." The same provision grants "superintending control over ... tribunals" to the Supreme Court and to this court.³

The Air Conservation Commission is not a court. "`[A]n administrative body or even a quasi-judicial body is not and cannot be a court in a Constitutional sense.'" State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69, 75 (Mo. banc 1982) (citation omitted). Although not defined, "tribunals" would seemingly include "administrative tribunals."⁴ Hence, the commission is a tribunal over which the Supreme Court and this court have superintending control.

We question, however, whether circuit courts have superintending control over tribunals. Article V, § 14, of Missouri's constitution says, "The circuit courts shall have original jurisdiction over all cases and matters, civil and criminal" and authorizes the circuit courts to "issue and determine original remedial writs[.]"⁵ Unlike § 4.1 of Article V, this provision does not appear to grant the circuit court superintending control over administrative tribunals for the purpose of issuing original remedial writs.⁶ When a court has jurisdiction of the subject matter, it has the power to issue a writ to any inferior court over which it exercises superintending control.⁷Howard v. Pierce, 38 Mo. 296, 301 (1866); see also State ex rel. Spencer v. Anderson, 101 S.W.2d 530, 533 (Mo.App.1937).

The Supreme Court, however, in State ex rel. Riverside Joint Venture v. Missouri Gaming Commission, 969 S.W.2d 218 (Mo. banc 1998), seemingly — we can only surmise because the issue was not addressed — approves of the circuit court's jurisdiction to issue a writ of prohibition directed to an administrative agency.⁸ In that case, the Supreme Court quashed the circuit court's writ because "[t]he trial court's decision to employ prohibition to pretermit the Commission's consideration of the issues before it on due process grounds falls outside the recognized purposes for a writ of prohibition." Id. at 222.

Although the Supreme Court did not address the issue of the circuit court's jurisdiction to issue a writ of prohibition directed to an administrative agency, it has declared that, in all appeals, "[i]t is required to examine its jurisdiction sua sponte." Riverside-Quindaro Bend Levee District v. Intercontinental Engineering Manufacturing Corporation, 121 S.W.3d 531, 533 (Mo. banc 2003). Hence, we must assume that it examined its jurisdiction in Missouri Gaming Commission and concluded, without noting the issue, that the circuit court had jurisdiction to issue a writ of prohibition directed to an administrative agency although no basis for jurisdiction is apparent to us. Had the circuit court lacked jurisdiction, the Supreme Court also would have lacked jurisdiction because a judgment entered in excess of, or beyond, jurisdiction of the circuit court is void and deprives the...