Kinzenbaw v. Director of Revenue

62 S.W.3d 49, 2001 Mo. LEXIS 103, 2001 WL 1609362

• Court: Supreme Court of Missouri
• Decided: December 18, 2001
• Docket: SC 83802
• Status: Published

Opinions

MICHAEL A. WOLFF, Judge.

The director of revenue suspended Brent L. Kinzenbaw’s driver’s license for ten years on the grounds that Kinzenbaw has been convicted more than twice of driving while intoxicated. Kinzenbaw filed a petition in circuit court to review the suspension. The statute provides for “de novo” review.

The director filed an answer that included the administrative record upon which the suspension was based. At the circuit court hearing, neither party introduced evidence. The court held that the director failed to carry her “burden of proof’ and entered judgment setting aside the denial of the license.

For reasons that follow, the Court holds: Kinzenbaw has the burden of producing evidence that he is qualified for a driver’s license, and the director has the burden of producing evidence that he is not. The director meets her burden by introducing the administrative record. The burden of persuasion, as distinct from the burden of producing evidence, is at all times on Kin-zenbaw and never shifts. It is Kinzen-baw’s burden to prove that the facts on which the director relied in denying the license are not true or are legally insufficient to support the denial or suspension of the license.

The circuit court’s judgment is reversed and remanded.

The Pleadings and Record in the Circuit Court

Kinzenbaw had a driver’s license. The director notified Kinzenbaw, in the words of his circuit court petition admitted in the director’s answer, “that the Operator’s license previously issued by the Missouri Department of Revenue ... will be suspended for a period of ten years for the alleged reason that the Plaintiff (Kinzen-baw) has been convicted three or more times of driving while intoxicated.” Kin-zenbaw’s petition in the circuit court is labeled as a “Petition to review suspension of driver’s license.” The director’s answer treats the administrative action as a denial of Kinzenbaw’s “application for driving privileges” under section 802.060(9).¹ Whether a suspension or a denial of a license, the pleadings establish that the reason Kinzenbaw does not have a driver’s license is the director’s assertion that Kin-zenbaw has three convictions for driving while intoxicated. From the pleadings, it appears that he is otherwise eligible.

In the director’s answer, she “affirmatively states and alleges” that Kinzenbaw has a “BAC” conviction in Morgan County in 1993, a “DWI” conviction in Iowa in 1998, and a “DWI” conviction in Camden County in 1999. Attached to the director’s answer and incorporated by reference is the administrative record purporting to show these convictions.

The circuit court hearing was brief; in its entirety the transcript consists of 81 lines. The prosecuting attorney representing the director said: “I would present no evidence at this time, your honor.”

Kinzenbaw’s attorney’s entire case was: ‘We present no evidence, your honor. We’d ask for a judgment in our favor— based upon a lack of evidence presented by the Department of Revenue.”

Thereupon, the court observed that “the Director has the burden of going forward with the evidence ... and failed to do so.... ” When the trial court entered its written judgment in favor of Kinzenbaw the court said the department of revenue “failed to meet its burden of proof.”

The director appealed. This court granted transfer after opinion by the court of appeals. We have jurisdiction. Mo. Const, art. V, section 10.

The Statutory Scheme

Section 802.311² provides an appeal to the circuit court of the driver’s residence where a driver’s license is suspended or application for driver’s license is denied. The appeal is to be “in the manner provided by chapter 536, RSMo, for the review of administrative decisions-” In the circuit court appeal, “the cause shall be heard de novo and the circuit court may order the director to grant such license, sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license.”

The statute has two key directives. First, the cause is heard “de novo,” a common Latin phrase meaning “anew.”³ When a matter is heard “de novo,” the parties start over and there is no particular deference given to prior proceedings, in this case, the administrative record on which the director’s decision was based. Jenkins v. Director of Revenue, 858 S.W.2d 257, 260 (Mo.App.1993). The second directive of section 302.311 is that the matter is to be heard in the manner provided in chapter 536, which governs administrative appeals. In the parlance of chapter 536, there are “contested” cases and “noncontested” cases. A contested case is one where the administrative agency has rendered a decision following a hearing. Section 536.010(2); Benton-Hecht Moving & Storage, Inc. v. Call, 782 S.W.2d 668 (Mo.App.1990). Since there was no hearing (or “contest”) at the agency, Kinzen-bav/s case is “noncontested” and is thus governed by section 536.150.⁴

In the context of a driver’s license, the pertinent portions of the statute say that “in any such review proceeding, the court may determine the facts relevant to the question” whether the driver or applicant “had such right, or was entitled to such privilege.” Further, “the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, capricious or involves an abuse of discretion....”

The statutes, section 302.311 and section 536.150, construed together, do not explicitly allocate burdens of pleading and proof. In actuality, substantive statutes that are explicit in their procedural effects — such as allocating burdens of pleading and proof — are exquisite treasures. But they are rare. In most instances, including this one, courts are left to search the statutory language for clues.

There are some clues. Both sections put the burden on the aggrieved driver to “appeal” (the term used in section 302.311) or bring “suit” or “other appropriate action” (the words of section 536.150). That the proceeding is “de novo” would imply that that the person bringing the action bears burdens similar to those borne by plaintiffs or petitioners in other civil actions. And the directive, in the words of section 536.150, that the court may determine that the administrative action is “unconstitutional, unlawful, unreasonable, arbitrary or capricious, or an abuse of discretion” would likewise place the burden on the driver to show that the administrative action should be set aside for one or more such reasons. The court, according to these statutory sections, must determine “facts” and its proceeding is “de novo.”

Those who enact statutes can expect that courts will allocate burdens of pleading and proof in traditional ways that show common sense, fairness and faithfulness to the statutory language and purpose.⁵

When courts discuss the burden of proof, there are two components: the burden of producing (or going forward with) evidence and the burden of persuasion. See McCloskey v. Koplar, 329 Mo. 527, 46 5.W.2d 557, 561-63 (1932).⁶ Cases also refer to a burden of pleading, which in most instances simply is assigned to the party with the burden of proof on an issue. See, e.g., Menzenworth v. Metropolitan Life Insurance Co., 249 S.W. 113, 115 (Mo.App.1923).

While drafters of legislation may overlook explicit allocations of these burdens, courts cannot. The adjudicatory role makes it necessary to set forth explicitly the burdens that each party must assume in litigation.

Allocating the burdens

The driver bears initially the burden of producing evidence that he is entitled to a license. Kinzenbaw has pleaded that he has had a driver’s license and that the director notified him that the license would be suspended for ten years because he has been convicted three or more times for driving while intoxicated. The director’s answer, in admitting that Kinzenbaw had been duly licensed, discharges Kinzen-baw’s burden of producing evidence that he was licensed and otherwise eligible for a license. The director’s answer also pleads and puts at issue the reason for the suspension — the three asserted convictions for driving while intoxicated.

The director’s answer attaches the administrative record showing the three convictions. Section 302.312.1 RSMo Supp.1997, makes such record, when properly certified, “admissible as evidence.”⁷ The statute does not, in a de novo hearing, put the record in evidence or otherwise discharge the director’s burden of producing evidence. Wampler v. Director of Revenue, 48 S.W.3d 32, 35 (Mo. banc 2001).⁸

In this case, as Wampler indicates, the director must offer the evidence she has — the administrative record. This burden of producing evidence does not shift the burden of persuasion to the director. The burden of persuasion remains with the driver.⁹

The administrative record, when admitted into evidence by the trial court, is evidence that Kinzenbaw has three convictions for driving while intoxicated and supports the director’s suspension of the license.

While the director’s burden is satisfied by the introduction of the administrative record, it is the driver’s burden to show that the facts that purport to be established by the administrative record are not true or that the grounds for the suspension are unlawful, unconstitutional, or otherwise insufficient under section 536.150 to support the director’s action.¹⁰ For example, if Kinzenbaw were to contend that he is not the person convicted of driving while intoxicated in Iowa in 1999, it is his burden to produce evidence and persuade the trial court that the administrative record is incorrect.

To use another example, if Kinzenbaw were to claim that one of the purported convictions is legally insufficient to form the basis for a license suspension under the applicable statute, it is his burden to establish that proposition.

Conclusion

The trial court granted relief to Kinzen-baw after a hearing in which neither side produced evidence. The record, as established by Kinzenbaw’s pleading and the director’s answer, is that Kinzenbaw was notified of his license suspension because of three convictions for driving while intoxicated. At the time of the hearing, the director did not have the benefit of this Court’s decision in Wampler that providing the administrative record in the answer is not sufficient to carry the director’s burden of going forward with the evidence. A remand is appropriate for a hearing consistent with the allocation of the burden of producing evidence and the burden of persuasion set forth in this opinion. The judgment of the trial court is reversed and the cause is remanded.

WHITE, HOLSTEIN, BENTON, LAURA DENVIR STITH and PRICE, JJ., concur; LIMBAUGH, C.J., concurs in separate opinion filed.

1 . Section 302.060(9) RSMo 2000, states in full: "To any person who has been convicted more than twice of violating state law, or a county or municipal ordinance where the judge in such cases was an attorney and the defendant was represented by or waived the right to an attorney in writing, relating to driving while intoxicated; except that, after the expiration of ten years from the date of conviction of the last offense of violating such law or ordinance relating to driving while intoxicated, a person who was so convicted may petition the circuit court of the county in which such last conviction was rendered and the court shall review the person's habits and conduct since such conviction. If the court finds that the petitioner has not been convicted of any offense related to alcohol, controlled substances or drugs during the preceding ten years and that the petitioner’s habits and conduct show such petitioner to no longer pose a threat to the public safety of this state, the court may order the director to issue a license to the petitioner if the petitioner is otherwise qualified pursuant to the provisions of sections 302.010 to 302.540. No person may obtain a license pursuant to the provisions of this subdivision through court action more than one time.”

All statutory references are to RSMo 2000, unless otherwise indicated.

2 . Section 302.311 states in full: “In the event an application for a license is denied or withheld, or in the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence in the manner provided by chapter 536, RSMo, for the review of administrative decisions at any time within thirty days after notice that a license is denied or withheld or that a license is suspended or revoked. Upon such appeal the cause shall be heard de novo and the circuit court may order the director to grant such license, sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license. Appeals from the judgment of the circuit court may be taken as in civil cases. The prosecuting attorney of the county where such appeal is taken, shall appear in behalf of the director, and prosecute or defend, as the case may require.”

3 . Black's Law Dictionary 435 (Seventh ed.1999).

4 . Section 536.150 states in full: “1. When any administrative officer or body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certio-rari, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed.

2. Nothing in this section shall apply to contested cases reviewable pursuant to sections 536.100 to 536.140.

3. Nothing in this section shall be construed to impair any power to take summary action lawfully vested in any such administrative officer or body, or to limit the jurisdiction of any court or the scope of any remedy available in the absence of this section.”

5 . See generally Edward W. Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 12 Stan. L.Rev. 5 (1959). Compare Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), with St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

6 . The common understanding, as set forth in Black's Law Dictionary, is that the burden of persuasion is "a party's duty to convince the fact-finder to view the facts in a away that favors that party.” Black’s Law Dictionary 190 (Seventh ed.1999). The burden of producing evidence is "a party’s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict.” Id.

7 . Section 302.312.1 states in full: "Copies of all papers, documents, and records lawfully deposited or filed in the offices of the department of revenue or the bureau of vital records of the department of health and copies of any records, properly certified by the appropriate custodian or the director, shall be admissible as evidence in all courts of this state and in all administrative proceedings.”

8 . See generally Askins v. James, 642 S.W.2d 383 (Mo.App.1982) ("the applicable statues do not directly prescribe who bears the burden of proving these matters,” but nonetheless, “We think the state should be required to carry the burden of proof.” Id. at 385). To the extent that Askins is read to place a burden of persuasion on the director under section 302.311, it should no longer be followed.

9 . In the Wampler case, as relevant here, the director argued only that the director was not obligated to formally offer into evidence the certified records supporting her administrative action, and that the trial court was required to review the certified administrative record that was filed with the answer before the hearing. Id. at 35. Not until the motion for rehearing in this Court did the director mention the burden of proof. Issues raised for the first time in a motion for rehearing will not be considered. Irwin v. Globe-Democrat Pub. Co. 368 S.W.2d 452, 458 (Mo.), cert, denied, 375 U.S. 908, 84 S.Ct. 198, 11 L.Ed.2d 147 (1963).

In Wampler, the driver presented no evidence but prevailed. 48 S.W.2d at 34. In this case, the driver presented no evidence, but faces a remand. Wampler should not be read more broadly than the issues decided there.

10 . See Johnston v. Director of Revenue, 762 S.W.2d 444 (Mo.App.1988), where the court said the submission of the administrative record to the circuit court by the director is sufficient. See also Kinder v. Director of Revenue, 895 S.W.2d 627, 629 (Mo.App.1995).