Ross v. Robb

651 S.W.2d 680, 11 Educ. L. Rep. 1100, 1983 Mo. App. LEXIS 3294

• Court: Missouri Court of Appeals
• Decided: May 10, 1983
• Docket: WD32540
• Status: Published

Opinions

DIXON, Judge.

The school board appeals from the action of the circuit court in reinstating respondent Robert Ross as a teacher in the school district. Upon a finding that this court has no jurisdiction, the cause is transferred to the Supreme Court of Missouri. Mo. Const. Art. V, § 3.

Pursuant to § 168.116 RSMo 1978,¹ Ross was discharged as a tenured teacher. This dismissal was after a hearing and statement of charges. The cause for dismissal was activity of the teacher that was found by the school board to be “immoral conduct.” § 168.114.1(2). The teacher petitioned the circuit court for review. § 168.120. The circuit court then entered its findings, conclusions, and order, which specified the sole ground for decision as follows:

When it comes to subparagraph 5 of paragraph 2 of Section 536.140, as to whether or not there was a fair trial, the Court will find that there was not.

The Court is of the opinion that fair trial ... cannot be had when the same body draws the charges, employs the attorney to present their evidence, and then sets [s/c] as judge and jury to render a verdict.

This issue was not raised in the petition for review. The circuit court addressed none of the issues raised by respondent’s petition for review, relying solely on the above-stated ground for its decision.

The brief for the school board filed in this court addressed all of the issues raised by the petition for review, as well as the extraneous ground relied upon by the circuit court, but riot raised in the petition for review. Respondent’s brief countered supporting the extraneous ground of the circuit court decision and also asserting that the findings of the school board were not supported by competent and substantial evidence, as well as the claim of constitutional invalidity of the statute. The briefs thus assert three issues: (1) the propriety of the action of the trial court ruling on the extraneous issue; (2) the issue of a lack of substantial competent evidence to support the findings of the school board; and (3) the constitutional issue. Before the constitutional claim of invalidity of the statute is reached (and thus the question of our jurisdiction), the other claims must be resolved.

The review by both the circuit court and this court in a contested case has been recently defined by our court in Phipps v. School District of Kansas City, 645 S.W.2d 91 (Mo.App.1982):

The statutes, rules and precedents which define and measure the role of the circuit court on review of an administrative contested case codefine and comea-sure the role of the appeals court. Thus, neither the circuit court under § 536.-140.1 nor the court of appeals from the judgment of the circuit court review de novo ...; rather, each reviews the decision of the agency ..., each defers to the administrative adjudication ... and each must sustain the agency decision unless the contestant by cogent evidence proves that the determination does not rest on competent and substantial evidence or is otherwise not valid ....

Id. at 95.

The initial question, then, must be whether this court will review the issue decided by the circuit court, which was not raised in the petition for review.² Whether the circuit court was required to have decided such an issue, not raised by the parties, and whether this court is required, in turn, to do so is not free from doubt.

Section 536.140 provides the statutory direction for the scope of review for both this court and the circuit court. It reads in pertinent part:

536.140. Scope of judicial review — judgment — appeals

1. The court shall hear the case without a jury and, except as otherwise provided in subsection 4, shall hear it upon the petition and record filed as aforesaid.

2. The inquiry may extend to a determination of whether the action of the agency

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion,

(emphasis supplied).

The emphasized language quoted above seems to premise the application of all of the subsections of § 536.140.2 upon a requirement that the case be heard by the circuit court and, in turn, by this court upon the “petition and record.” That construction of the statute would preclude a requirement of review as to matters not raised in the petition for review.

The “subsection 4” excepted in the language quoted is § 536.140 subsection 4 providing for supplementation of the record under specified circumstances. This subsection has no effect on the language of § 536.140 subsection 1 relating to the petition.

Perez v. Webb, 533 S.W.2d 650, 655 (Mo.App.1976), so holds. In that case, the circuit court decided the case on a constitutional principle not contained in the petition of the aggrieved party. The court of appeals said:

Even though the constitutionality of a statute or ordinance is included within the permissible scope of judicial inquiry upon review of administrative decisions under Section 536.140(2)(1) RSMo 1969, quoted above, it is beyond the scope of logic and does violence to the existing and binding rules with reference to pleading and preservation of constitutional points, to hold that in such judicial review a court (the Circuit Court in this instance) is required to (or would be within its historical function, if it did) search, sua sponte, for constitutional infirmities not put forward by the parties.

Not only would such a rule impose an onerous and unnecessary task upon the judicial review tribunal — one in which the parties evidenced no interest — but, if it was concluded that such constitutional problem existed, the court would, sua sponte, then have to decide if such problem was one of construction or application to test its own jurisdiction. Such foolish and useless intent will not be ascribed by this court to the legislative intent implicit in the enactment of Section 536.140(2)(1) RSMo 1969. City of Joplin v. Joplin Water Works, 386 S.W.2d 369, 373-374[5-7] (Mo.1965).

The constitutional considerations upon which this case was ruled in the court below were foreign to the matter before it, should not have been considered, and were, therefore, not decisive.

Id. at 655-56.

The holding of Perez is consistent with principled appellate review. A court sitting as an appellate court considers only allegations of error raised by the appealing party and does not sua sponte review for error not asserted or raised aside from a limited power to review for plain error. Rule 84.13. That principle of appellate review is stated in State ex rel. Houser v. Goodman, 406 S.W.2d 121 (Mo.App.1966):

With few exceptions, the forte of any court is to relegate itself to limbo until presented proper pleadings to be employed as vehicles for judicial locomotion. Even in matters over which a court has general jurisdiction, it cannot, ex mero motu, set itself in motion nor have power to determine questions unless they are presented to it in the manner and form prescribed by law.

Id. at 126.

The Perez case would appear to control, but it does not stand alone. In an earlier case, May Department Stores Co. v. State Tax Commn., 308 S.W.2d 748 (Mo.1958), the supreme court concluded that no authority denied a party the right to raise on appeal a question not asserted in the petition for review. The language of the May case on that issue is as follows:

Defendants say that this point was not raised in the petition for review, that it was not urged before the Commission, and that it is not properly here. We have searched the petition with the point in mind; we find no facts alleged which would raise the point, and no such theory of invalidity advanced. However, our statutes providing the remedy of judicial review (§§ 536.100, 536.110) do not require specific grounds to be stated in the petition, as does, for instance, the Public Service Commission Act in motions for rehearing (see §§ 386.500, 386.510); we find no previous authority requiring such under Chapter 536. We hesitate to impose the requirement here, although counsel did see fit to set out the other grounds in great detail. Under the circumstances we shall consider the point.

Id. at 762.

The May opinion neither mentions nor discusses § 536.140(1). This court, in Century State Bank v. State Banking Board, 523 S.W.2d 856 (Mo.App.1975), relying on the language of May set forth above, again permitted a party to raise an issue on review in the appellate court that was not raised in the petition for review. In doing so, Century State Bank overruled two cases, Carroll Construction Co. v. Kansas City, 278 S.W.2d 817 (Mo.App.1955), and Isgrigg v. Board of Trustees of Policemen’s & Firemen’s Pension Board, 401 S.W.2d 936 (Mo.App.1966), in which courts had refused to consider the failure of the agency to make findings of fact and conclusions of law when that issue was not raised in the petition for review.

In Century State Bank, supra, the party raised the issue in terms of a violation of § 536.090, which explicitly requires such findings and conclusions. As a departure from the procedure imposed on the agency by statute, the failure of the agency in Century State Bank to make findings of fact and conclusions of law does not depend on a scope of review analysis but upon a jurisdictional ground. A similar violation of a statutory direction to the State Tax Commission was involved in the May case.

No case has been found in which a court has considered a nonjurisdictional issue not contained in the petition for review and not based upon statutory irregularity. The doctrine of Century State Bank, supra, and May, supra, appears to rest upon the failure of the agency to conform to a statute governing its procedure, which deprived this court of jurisdiction to review in accordance with the constitutional mandate of Mo. Const. Art. V, § 18. A construction of the statute and interpretation of the case law that narrowly limits the holding of Century State Bank to that rationale with respect to the necessity of raising an issue in the petition for review is consistent with principles of appellate review. If § 536.140 is read as requiring the review of any claim comprehended within the statute, the task of review by both the circuit court and this court becomes gargantuan. If such a view of the statute prevailed, then any sort of a shotgun petition for review would permit argument and briefing of any claim comprehended within any subsection of the statute. Under the teaching of Phipps, 645 S.W.2d 91, the burden at this level of review would be intolerable. Since our review under Phipps is of the agency action, a rule permitting briefing in this court of any issue whether included in the petition for review or not would intolerably expand the issues that could be briefed and argued in this court.

It must be concluded that this court should not review under our scope of review the issue raised by the trial court and briefed for the first time in this court. If this court undertakes such a review, the question of our jurisdiction to do so would require determination since the effect of the circuit court’s holding is to render invalid the statutes under which the board acted in preferring the charges and conducting the hearing.

The issue of evidentiary support is likewise without merit. There can be no doubt that the board’s findings were supported by substantial and competent evidence.³

This leaves for determination the issue of the claimed invalidity of § 168.114 upon due process grounds. The petition for review contained the following allegation:

That the said FINDINGS AND DECISIONS of said Board of Education of Moberly Public School District No. 81 are in violation of constitutional provisions in that Section 168.112, Revised Statutes of Missouri, providing that the contract of a tenured teacher may be terminated for “immoral conduct” is so vague and uncertain as to be unconstitutional; and said vague and uncertain statute deprives the Petitioner of his rights of due process as protected by the U.S. Constitution.

The school board asserts that the rule for the determination of the timeliness and validity of a constitutional challenge is set forth in Perez v. Webb, 533 S.W.2d at 655:

Thus, in City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 380[10] (banc 1949), the rules are stated:

“To invoke our jurisdiction on the ground a constitutional question is involved a party must follow four requirements. 1. He must raise the constitutional question at his first available opportunity; 2. he must designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the Article and Section or by quotation of the provision itself; 3. he must state the facts showing such violation; 4. he must preserve the constitutional question throughout for appellate review.” (Emp. sup.)

The reference to City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 380 (banc 1949), in Perez does not identify the quotation given as being from the concurring opinion of Judge Douglas, in which no other judge concurred. However, the principal opinion in St. Louis v. Butler, in less precise terms, identifies the four elements necessary for preserving a constitutional issue. Assuming that the “test” involves the four factors listed in Perez, the present case presents a viable constitutional challenge.

There is no issue of timeliness. The issue was presented in the petition for review, which was the first opportunity to raise the issue in a forum with jurisdiction to decide the issue.

The facts of the application of § 168.114 in violation of the due process clause were before the circuit court. The requirement that the assertion of the constitutional claim contain a sufficient factual statement to enable the court to rule the issue arises from the prior requirement that the issue be raised at the earliest opportunity. In many cases where the constitutional issue must be raised at the pleading stage the facts have not been developed, and the trial court would be at a loss to determine the constitutional issue without some of the factual background giving rise to the dispute. The requirement of a statement of facts is of less significance in the context of circuit court review of a constitutional defect in administrative proceedings. This is because the circuit court has before it the factual record made before the administrative agency, and the facts upon which the constitutional issue is predicated are already a matter of the record required by §§ 536.070 and 536.130. The challenge to the application of the statute as “vague and uncertain” in the use of the term “immoral conduct” in § 168.114 was explicit.⁴ The issue was pressed on appeal.

The only conceivable defect in the challenge under the ruling of St. Louis v. Butler Co., supra, is the failure to refer to the amendment number in identifying the due process clause of the Federal Constitution.

That specific question was raised in a later cause involving a similar challenge of “vagueness and uncertainty” under the “due process clauses” of the state and federal constitutions. State v. Becker, 268 S.W.2d 51 (Mo.App.1954). In resolving the question of whether the defendant designated or specified the particular sections of the constitutions claimed to be violated, the court held:

We realize that in certain cases the Supreme Court has stated that the party relying on a constitutional question should cite the constitutional provision relied on by article and section number. City of St. Louis v. Butler Co., supra; Robinson v. Nick, 345 Mo. 305, 134 S.W.2d 112. In other cases, however, a more general specification has been held sufficient. Dye v. School Dist. No. 32 of Pulaski County, 355 Mo. 231, 195 S.W.2d 874; Wooster v. Trimont Mfg. Co., 356 Mo. 682, 203 S.W.2d 411; City of St. Louis v. Friedman, 358 Mo. 681, 216 S.W.2d 475. There is only one “due process” clause in each constitution. It is a constitutional provision of universal recognition. All lawyers and judges know what is meant by the term “due process clause,” and know where to find it. To refer to the clause by that name is as precise and specific an identification as the giving of the number of the amendment and paragraph or article and section. No uncertainty or indefiniteness is involved. The additional information would be superfluous — wholly unnecessary to a full understanding on the part of the court as to the exact constitutional provision invoked. We cannot brush aside constitutional questions of serious import, fairly and timely raised and properly kept alive, and assume jurisdiction on the pretext that appellant has not raised the point properly, when in the motion to quash and at every conceivable stage thereafter he contended that the statute under which he was being prosecuted was unconstitutional as a violation of the due process clauses of the State and Federal Constitutions. This is not a case of raising the constitutional question as an “afterthought on appeal.” See City of St. Louis v. Butler Co., supra, 219 S.W.2d loc. cit. 376.

State v. Becker, 268 S.W.2d at 53.

Becker was transferred to the supreme court and the constitutional issue determined by that court in State v. Becker, 364 Mo. 1079, 272 S.W.2d 283 (1954) overruled on other grounds, State v. Vollmar, 389 S.W.2d 20 (Mo.1965). Significantly, the attorney general’s motion for retransfer to the court of appeals was denied; the supreme court holding that a valid constitutional issue was presented, thereby conferring jurisdiction upon the supreme court. See also University City v. Diveley Auto Body Co., 417 S.W.2d 107, 109 (Mo. banc 1967).

The rationale of the rule rests upon the need to present an identifiable issue to the court and give the opposing party and the trial court an opportunity to fairly meet and rule the issue. City of Olivette v. Graeler, 329 S.W.2d 275 (Mo.App.1959). That rationale was reaffirmed in a very recent case of the Supreme Court of Missouri en banc, Winston v. Reorganized School District R-2, 636 S.W.2d 324 (Mo. banc 1982). In that case, a constitutional issue was first raised in general terms and later expanded. The court held that the initial general statement was sufficient to satisfy the rule:

Accordingly, because the purpose of the rule requiring that constitutional issues be raised at the earliest opportunity, to prevent surprise to the opposing party and permit the trial court an opportunity to fairly identify and rule the issue, was served here, defendant’s jurisdictional challenge is denied. Weir v. State, 589 S.W.2d 256 (Mo. banc 1979).

Winston, supra, at 327.

Respondent has raised and preserved his constitutional attack upon the validity of § 168.114. This cause is transferred to the Supreme Court of Missouri, which has jurisdiction of the appeal under Mo. Const. Art. V, § 3.

SHANGLER and CLARK, JJ., concur.

SOMERVILLE, C.J., concurs in part and dissents in part in separate opinion.

KENNEDY, J., dissents.

MANFORD, J., dissents in separate dissenting opinion.

PRITCHARD, J., dissents and concurs in separate dissenting opinion of MANFORD, J.

1 . All statutory references are to Revised Statutes of Missouri, 1978.

2 . Under Phipps, this court, if it considered such an issue, would determine it independently, and not as a review of the circuit court determination.

3 . In view of the extensive treatment of the facts in the dissent, no recitation of the salient facts and evidence is necessary.

4 . The merits of the constitutional issue raised are not relevant in the determination by the court of appeals of its jurisdiction. University City v. Diveley Auto Body Co., 417 S.W.2d 107, 109 (Mo. banc 1967); State v. Davis, 462 S.W.2d 178, 181 (Mo.App.1970). Notwithstanding the apparent invalidity of the constitutional challenge, the case must be transferred, because all doubts are resolved against jurisdiction in the court of appeals. State v. Davis, 462 S.W.2d at 181; City of Olivette v. Graeler, 329 S.W.2d 275, 281 (Mo.App.1959); Dillen v. Edwards, 254 S.W.2d 44, 49 (Mo.App.1953); Chapman v. Schearf, 220 S.W.2d 757, 759-60 (Mo.App.1949).