State ex rel. Robison v. Lindley-Myers

• Decision Date: 12 June 2018
• Docket Number: No. SC 96719,SC 96719
• Parties: STATE EX REL. Bryan Travis ROBISON, Appellant, v. Chlora LINDLEY-MYERS, Director, Department of Insurance, Financial Institutions and Professional Registration, Respondent.
• Court: Missouri Supreme Court

551 S.W.3d 468

STATE EX REL. Bryan Travis ROBISON, Appellant,

v.Chlora LINDLEY-MYERS, Director, Department of Insurance, Financial Institutions and Professional Registration, Respondent.

No. SC 96719

Supreme Court of Missouri, en banc.

Opinion issued June 12, 2018

Robison was represented by David F. Barrett of Professional Legal Services in Jefferson City, (573) 340-9119.

The director was represented by Cheryl C. Nield of the Missouri Department of Insurance in Jefferson City, (573) 751-2619.

W. Brent Powell, Judge

Bryan Travis Robison appeals the circuit court’s judgment quashing its preliminary writ in mandamus and denying Robison’s request for a permanent writ against the director of the Department of Insurance, Financial Institutions, and Professional Registration.¹ This Court affirms the circuit court’s judgment because Robison failed to demonstrate he was entitled to mandamus relief.

I. Factual and Procedural History

Robison has been licensed as a general bail bond agent since 2007. A month before his license was set to expire, Robison applied to renew his license with the director of the Department of Insurance, Financial Institutions, and Professional Registration. The department filed a petition requesting the director deny Robison’s license renewal application, alleging Robison was disqualified for licensure because he failed to meet the surety qualifications requiring a bail bond agent to have "no outstanding forfeiture or unsatisfied judgment thereon entered upon any bail bond." Rule 33.17(f).

Prior to submitting his renewal application, Robison submitted a number of affidavits identifying unsatisfied judgments levied against him.² As a result of the outstanding judgments, the director denied Robison’s application for renewal. Included with the rejection order was a notice of Robison’s legal right to file a complaint with the Administrative Hearing Commission, pursuant to § 621.120, within 30 days after the mailing of the notice.

Rather than exercising his right to file a complaint with the Commission, Robison opted to file a petition for a writ of mandamus in the Cole County circuit court. Robison’s petition alleged the director issued the order denying his application for renewal without proper notice and an opportunity to be heard. The circuit court granted a preliminary writ, but after a hearing, quashed the preliminary writ. Robison appealed and, after opinion by the court of appeals, this Court transferred pursuant to article V, § 10 of the Missouri Constitution.

II. Analysis

Robison argues the circuit court erred when it quashed the preliminary writ and denied his request for a permanent writ of mandamus because § 374.750 unconstitutionally denied him due process by allowing the director to summarily refuse to renew his license without first giving him notice and an opportunity for a hearing. The director asserts Robison is not entitled to writ relief because Robison failed to exhaust his administrative remedies by not seeking review before the Commission.

Standard of review

"An appellate court reviews the denial of a petition for writ of mandamus for an abuse of discretion." Boresi , 396 S.W.3d at 359. "An abuse of discretion in denying a writ occurs when the circuit court misapplies the applicable statutes." Id.

Contested or non-contested

When reviewing a governmental agency’s decision, this Court considers whether the matter before the agency was a "contested" or "non-contested case" to determine the scope of judicial review. Furlong Cos., Inc. v. City of Kan. City , 189 S.W.3d 157, 165 (Mo. banc 2006). "The Missouri Administrative Procedure Act [ (MAPA) ] provides for two types of cases: contested cases and non-contested cases." Id. 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." § 536.010(4). The "law" requiring a hearing "includes any ordinance, statute, or constitutional provision that mandates a hearing." McCoy v. Caldwell Cty. , 145 S.W.3d 427, 428 (Mo. banc 2004). A non-contested case, although not defined by MAPA, is "a decision that is not required by law to be determined after a hearing." Furlong , 189 S.W.3d at 165. "In either a contested or non-contested case the private litigant is entitled to challenge the governmental agency’s decision." Id. "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 the administrative trial, whereas in a non-contested case the private litigant tries his or her case to the court." Id.

"The classification of a case as ‘contested’ or ‘noncontested’ is determined as a matter of law."

City of Valley Park v. Armstrong , 273 S.W.3d 504, 506 (Mo. banc 2009). The director contends the case is contested because had Robison appealed to the Commission, there would have been a proceeding in which Robison’s legal rights, duties, or privileges would be determined. However, the director ignores that, even if Robison had filed a complaint with the Commission, the director would have retained her discretion to refuse his license renewal pursuant to § 374.051.1, which provides:

Any applicant refused a license or the renewal of a license by order of the director under sections 374.755, 374.787, and 375.141 may file a petition with the administrative hearing commission alleging that the director has refused the license. The administrative hearing commission shall conduct hearings and make findings of fact and conclusions of law in determining whether the applicant may be disqualified by statute. Notwithstanding section 621.120, the director shall retain discretion in refusing a license or renewal and such discretion shall not transfer to the administrative hearing commission .³

(Emphasis added). As this Court has held, when a proceeding is merely advisory and does not bind the decision-maker "to any gauge or criteria," then the administrative proceeding or hearing does not make the matter a contested case, and review does not fall under § 536.100. See McCoy , 145 S.W.3d at 428–29 ; Kunzie v. City of Olivette , 184 S.W.3d 570, 572–73 (Mo. banc 2006). Because the director retained her discretion to refuse Robison’s license renewal even if Robison had pursued his administrative remedy, this is a non-contested case governed by § 536.150.

Administrative remedies must be exhausted in non-contested cases

Section 536.150.1 provides a right to judicial review when an agency decision is "not subject to administrative review." Thus, § 536.150.1 requires exhaustion of administrative remedies before seeking judicial review of non-contested cases. See Impey v. Mo. Ethics Comm'n , 442 S.W.3d 42, 47 n.5 (Mo. banc 2014). In Strozewski v. Springfield , 875 S.W.2d 905, 907 (Mo. banc 1994), however, this Court held § 536.150 "has no requirement of exhaustion of administrative remedies." As such, Strozewski’s holding appears at odds with the plain language of § 536.150.

"This Court’s primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue." Parktown Imps., Inc. v. Audi of Am., Inc. , 278 S.W.3d 670, 672 (Mo. banc 2009). In determining § 536.150 did not require exhaustion of administrative remedies, Strozewski focused on subsection 3 of § 536.150, which provides, "Nothing in this section shall be construed ... to limit the jurisdiction of any court or the scope of any remedy available in the absence of this section." 875 S.W.2d at 907. Relying on the language in subsection 3 that the statute did not intend to limit a court’s jurisdiction, Strozewski concluded, "exhaustion of administrative remedies is not a jurisdictional prerequisite in uncontested cases." Id. Strozewski is correct that exhaustion of administrative remedies is not a jurisdictional prerequisite. However, exhaustion of administrative remedies is plainly a statutory prerequisite pursuant to subsection 1 of § 536.150.

Subsection 1 § 536.150 provides a right to judicial review in a non-contested case when the decision challenged "is not subject to administrative review." Subsection 3, which speaks in terms of jurisdiction, does not negate or otherwise affect subsection 1. Subsection 1 speaks in terms of statutory authority and plainly contains an exhaustion of administrative remedies prerequisite with the "not subject to administrative review" language. Statutory prerequisites and jurisdictional requirements are not the same. See J.C.W. ex rel. Webb v. Wyciskalla , 275 S.W.3d 249, 254 (Mo. banc 2009). Strozewski ’s rejection of the statutory prerequisite in subsection 1 based on an unrelated jurisdictional provision in subsection 3 reflects the outdated concept of "jurisdictional competence" and, therefore, should no longer be followed. See State ex rel. Zahnd v. Van Amburg , 533 S.W.3d 227, 231 (Mo. banc 2017). Because judicial review pursuant to § 536.150.1 is statutorily restricted to when a governmental agency decision is not "subject to administrative review," aggrieved parties must exhaust all their administrative remedies before seeking judicial review in a non-contested case.

Robison is not required to exhaust administrative remedies

Although Robinson’s non-contested case would normally require exhaustion of administrative review, the overruling of Strozewski requires prospective application of the exhaustion prerequisite. "This Court has the authority to determine whether a decision changing a rule of law is to be applied retrospectively or prospectively." State v. Walker , 616 S.W.2d 48, 48 (Mo. banc 1981). When a change in the rule of law is procedural, it operates prospectively only. Id. ; see also Moore v. Ready Mixed Concrete Co. , 329 S.W.2d 14, 24 (Mo. banc 1959). When the change is substantive, it operates both retrospectively and prospectively. Id. "The distinction between substantive law and procedural law is that...