State ex rel. Yarber v. McHenry

• Decision Date: 21 November 1995
• Docket Number: No. 77744,77744
• Citation: 915 S.W.2d 325
• Parties: 107 Ed. Law Rep. 361 STATE ex rel. CLINT YARBER, a Minor, etc., Relator, v. Honorable James F. McHENRY, Judge of the 19th Circuit Court, Respondent.
• Court: Missouri Supreme Court

Page 325

915 S.W.2d 325

107 Ed. Law Rep. 361

STATE ex rel. CLINT YARBER, a Minor, etc., Relator, v. Honorable James F. McHENRY, Judge of the 19th Circuit Court,

Respondent.

No. 77744.

Supreme Court of Missouri,

En Banc.

Nov. 21, 1995.

As Modified on Denial of Rehearing

Dec. 19, 1995.

Kent L. Brown, Jefferson City, for relator.

Virginia L. Fry, Don G. Busch, Springfield, for respondent.

Steven L. Wright, Melissa K. Randol, Columbia, for amicus curiae Missouri School Boards Association.

ORIGINAL PROCEEDING IN PROHIBITION

LIMBAUGH, Judge.

This is a proceeding in prohibition. Relator, Clint Yarber, asks this Court to determine the proper venue for judicial review of a decision by the Mountain Grove School District denying him a semester of high school credit hours because of excessive absences. Yarber contends that venue is proper in Cole County because the underlying case is a "contested case" as that term is used in the Missouri Administrative Procedure Act (MAPA), set out in chapter 536, RSMo. Respondent, Hon. James F. McHenry of the Circuit Court of Cole County, determined that the case is not a "contested case" and ordered that it be transferred to the Circuit Court of Wright County where Yarber resides and where the school district is located. The Missouri Court of Appeals, Western District, issued a preliminary writ of prohibition at Yarber's request after which this Court granted transfer. Rule 83.03. ¹ We now make the writ absolute.

I.

Clint Yarber attends Mountain Grove High School, which is operated by the Mountain Grove R-III School District. The school district has an attendance policy for the high school that states in pertinent part as follows:

I. Any student who misses more than six days in any given class in a semester will have the opportunity to make up class time or lose credit for that semester.

....

II. For the seventh and subsequent absences, students will attend "Saturday School" to make up time missed and receive credit for the semester.

V. If a student misses more days than available make-up days would accomodate [sic] (due to major illness, accident, or death in his/her immediate family), that student could file an appeal along with his or her parent/guardian(s) to be released from those days missed.

Yarber was accused of violating the attendance policy during the fall 1993 semester. The school notified him that he would be required to make up three days over Christmas vacation and one day during the month of January. Yarber attended two of the scheduled make-up days, but when his mother allegedly saw students in the make-up classes eating pizza and watching a movie, she took him out of the classes and did not send him back for the remaining days.

On January 12, 1994, Yarber, who had accrued credit for his class work, was notified by the school district that he had lost that credit for the semester because of the attendance policy violation. ² Yarber then appealed to the school board, which heard Yarber's objection but did not convene a formal hearing as contemplated by the "contested case" provisions of § 536.070, RSMo 1986. Thereafter, on January 28, 1994, the board denied the appeal.

Yarber, by and through his mother and next friend, Cheryl Yarber, then filed a three-count petition in the Circuit Court of Cole County, naming the school district, members of the board, and various administrators as defendants. In Count I, Yarber seeks judicial review under § 536.150, RSMo 1986, governing review of noncontested cases. Count II is brought, in the alternative, under §§ 536.100 to 536.140, RSMo 1986, governing review of contested cases. Count III is a claim for damages and injunctive relief pursuant to 42 U.S.C. §§ 1983 and 1988 for violation of Yarber's constitutional right to due process.

In the petition, Yarber alleged that venue was proper in Cole County under § 536.110.3, RSMo 1986, which states: "The venue of [contested] cases shall, at the option of the plaintiff, be in the circuit court of Cole County...." Defendants filed a motion to transfer the case to Wright County on the ground that the case was not a contested case. Judge McHenry sustained the motion to transfer, but several days thereafter he stayed the transfer to allow Yarber to seek a writ of prohibition. In the meantime, however, the case files were transferred to Wright County. When advised of the stay order, Wright County officials sent the files back to Cole County.

The principal issue before us is whether Yarber's case is a contested case. If so, then Yarber is correct that venue is proper in Cole County. § 536.110.3, RSMo 1986. Otherwise, the case can be brought only in Wright County. § 508.010(1), RSMo 1986.

II.

A contested case is defined in § 536.010(2), RSMo 1986, as "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." Local school boards such as that in Mountain Grove qualify as agencies under this definition because they are created by Missouri statutes from which they derive their rule-making and adjudicatory authority. § 536.010(1), RSMo 1986. See also Hagely v. Board of Education of Webster Groves School District, 841 S.W.2d 663 (Mo. banc 1992) (MAPA applied to Board of Education of Webster Groves).

A.

We would note, preliminarily, that the failure in this case of the Mountain Grove School District to conduct a formal hearing under contested case procedures presents the issue of whether chapter 536 applies at all. In Hagely, this Court, in dicta, stated:

A hearing that is not held pursuant to the procedural format necessary under MAPA does not qualify as a contested case, even though the hearing is required by law.

Id. at 668-69. However, as pointed out in Weber v. Firemen's Retirement System, 872 S.W.2d 477, 480 (Mo. banc 1994), this language was used to indicate that certain procedural advantages provided to the agency by the MAPA may be lost by the agency if it failed to follow contested case procedures. Id. at n. 3. In the context of the case at hand, § 536.010(2) mandates that if a hearing is required by substantive law, it must be conducted according to contested case procedures. The relevant inquiry is not whether the agency in fact held a contested case hearing, but whether it should have done so.

B.

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. Weber, 872 S.W.2d at 479; Byrd v. Board of Curators of Lincoln University of Missouri, 863 S.W.2d 873, 875 (Mo. banc 1993). The right to a hearing, in other words, is determined by substantive law outside the MAPA. In this case, neither Yarber nor the school district has directed us to any statute, rule, or ordinance granting Yarber a hearing, nor have we found one independently. The only other possible source for a hearing, therefore, is the constitutional right to due process.

In order to be entitled to a hearing under due process of law, a plaintiff must have either a life, liberty, or property interest protected by the Constitution. Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 82, 98 S.Ct. 948, 951, 55 L.Ed.2d 124 (1978). Yarber contends that he has a protected property interest in a high school education. Although no fundamental right to education exists under the United States Constitution, San Antonio School District v. Rodriguez, 411 U.S. 1, 34-35, 93 S.Ct. 1278, 1297-98, 36 L.Ed.2d 16 (1973), protected property interests generally derive from state law, Perry v. Sindermann, 408 U.S. 593, 599-603, 92 S.Ct. 2694, 2698-2700, 33 L.Ed.2d 570 (1972). In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the United States Supreme Court determined that a state-created property interest arose out of Ohio statutes that provided for free public education and compulsory attendance. Goss, 419 U.S. at 573-74, 95 S.Ct. at 735-36. Similarly, in Missouri, § 160.051, RSMo 1986, mandates the establishment of schools for the "gratuitous instruction of children," and § 167.031, RSMo 1986, provides for compulsory attendance. These Missouri statutes establish a property interest in an education no less than the property interests established by the Ohio statutes in Goss.

Any governmental taking of a property right implicates the right to procedural due process and thus requires notice and an opportunity to be heard. Weber, 872 S.W.2d at 479. In Goss, the Supreme Court held that a student suspended even for a de minimis period--10 days or less--is entitled to notice of the charges against him or her and a hearing consisting of "at least an informal give-and-take between student and disciplinarian." Goss, 419 U.S. at 581-84, 95 S.Ct. at 739-41. The Court also suggested that where the discipline is more than de minimis, a hearing affording more than the informal proceeding in Goss may be required. Goss, 419 U.S. at 584, 95 S.Ct. at 740-41.

In Yarber's case, the penalty imposed--loss of a semester's worth of credit hours--is in no way de minimus; it is instead a considerable infringement on Yarber's property interest. For that reason, we hold that procedural due process requires a hearing with more formal and extensive procedures than that provided in Goss. This, in turn, triggers the contested case provisions of MAPA.

The school district, citing State ex rel. Leggett v. Jensen, 318 S.W.2d 353 (Mo. banc 1958), contends that due process does not require a contested case hearing for all deprivations of life, liberty, or property rights. Implicit in Leggett, according to the school district, is the notion that a de minimus penalty would not require a contested case hearing. We note that Leggett predates Goss and other modern due process cases. In any event, having determined that the penalty imposed upon Yarber is a considerable infringement on his property interest, we need not...