State ex rel. Summers v. Pletz, WD

• Decision Date: 30 March 1981
• Docket Number: No. WD,WD
• Citation: 614 S.W.2d 559
• Parties: STATE of Missouri ex rel. Ricky SUMMERS, Relator-Appellant, v. John F. PLETZ, Acting Director of Division of Family Services succeeded by John Zumwalt, Director of Division of Family Services, Respondent-Respondent. 31761.
• Court: Missouri Court of Appeals

Page 559

614 S.W.2d 559

STATE of Missouri ex rel. Ricky SUMMERS, Relator-Appellant, v. John F. PLETZ, Acting Director of Division of Family Services succeeded by John Zumwalt, Director of Division of Family Services Respondent-Respondent.

No. WD 31761.

Missouri Court of Appeals, Western District.

March 30, 1981.

William L. Hall and James M. Smith, Legal Aid of Western Missouri, Kansas City, for relator-appellant.

Paul T. Keller, Dept. of Social Services, Jefferson City, for respondent-respondent.

Before DIXON, P. J., and KENNEDY and NUGENT, JJ.

DIXON, Judge.

This appeal by the relator is from the denial of a petition in mandamus. The mandamus was sought to compel the Director of the Missouri Division of Family Services to certify an administrative hearing record to the circuit court pursuant to an appeal from the denial of medical assistance benefits.

Relator filed an application for medical assistance benefits before February of 1978, with the Missouri Division of Family Services. He was determined ineligible on February 6, 1978, and he appealed this decision. On March 13, 1978, relator's mother appeared on his behalf at the appeal hearing. The relator did not appear, nor was he represented by a lawyer.

The decision denying his application was mailed to him by the Division on April 7, 1978. Relator learned of his right to judicial review of this decision from his doctor, after the 90 day statutory appeal limitation had passed.

Relator attempted to appeal to the circuit court by filing an affidavit and notice of appeal with the director under § 208.100 RSMo 1978. The Director of Family Services refused to certify the record to the circuit court. Relator sought mandamus to compel the certification of the record. Mandamus was denied, after hearing, on the ground that the director was unable to comply with the writ because of the delay in filing the affidavit of appeal. (The taped record of the hearing testimony was destroyed about September 1, 148 days after the decision was mailed to relator, thus 58 days after the time for appeal had lapsed and prior to the filing of the action in mandamus. However, the tape was not destroyed until about ten days after the affidavit of appeal was filed on August 22.) It is not clear from the record of the hearing on the mandamus action whether or not the documentary file, compiled before the hearing officer, had been destroyed.

As too frequently occurs, the parties have asserted different positions on appeal from those asserted at the trial level, and the resultant difficulty of analysis makes a relatively simple issue complex.

The director's position before the circuit court in the mandamus action is simply stated no duty to certify the record to the circuit court ever arose, because the statutory condition precedent to certifying the record (the filing of the affidavit of appeal within ninety days of the adverse decision), never occurred.

In the face of this contention, the relator asserted that no written notice of the right to appeal was ever given; and, therefore, the delay in filing was excused. That no written notice was given is conceded by the director, but he denies it is necessary.

The trial court, confronted with these contentions and the fact of the destruction of the tape of the evidence, denied the mandamus on the ground of impossibility of compliance. The director now espouses that position on appeal. While relator has extensively briefed and argued the notice question, respondent relies solely on the finding of impossibility of certification.

All of this ignores the fundamental issue of the role of the director in the appellate process. Although presented with this issue, the trial court likewise failed to resolve the question.

Under § 208.100 RSMo Supp. 1980, once relator was aggrieved by the decision of the director, he had the right to appeal to the circuit court. The statutory language requires relator to obtain an affidavit of appeal and to file it within ninety days of the adverse decision. Once the affidavit is filed within ninety days, the director is required to certify the entire record to the circuit court.

What occurred in this case is that the director determined the jurisdiction of the circuit court to entertain the appeal by assuming that, if no notice circuit court to entertain the appeal by assuming that, if no notice was filed within ninety days, no duty arose to file anything in the circuit court.

The director was in error in so deciding. It is settled principle that a reviewing court determines its own jurisdiction. A case bearing squarely on that issue is State ex rel. House v. White, 429 S.W.2d 277 (Mo.App. 1968). In White, respondent, a municipal court judge, refused to allow relator to file his affidavit of appeal from a guilty plea on the grounds that relator had no right to appeal from a judgment of the municipal court entered on a plea of guilty, since the ordinance governing appeals only authorized appeals to a defendant "who ... entered a plea of not guilty." Id. at 280. Relator's petition for a writ of mandamus which sought an order to compel the municipal judge to approve the appeal was denied, but this denial was reversed on appeal.

In holding that mandamus was the proper remedy available to relator, the court spoke on the function of the municipal judge in passing on the validity of the affidavit of appeal:

(T)his matter is one which is not for the decision of the municipal court. In the first place, the ordinances do not give any authority to a municipal judge to deny or in any way impede an appeal when a proper affidavit of appeal has been filed. Furthermore, it is fundamental that...