State ex rel. Jim Swoboda v. Missouri Commission on Human Rights, Alisa Warren, and Armstrong Teasdale, LLP

• Court: Supreme Court of Missouri
• Decided: August 9, 2022
• Docket: SC99000
• Status: Published

Opinion

SUPREME COURT OF MISSOURI

en banc

STATE ex rel. JIM SWOBODA, ) Opinion issued August 9, 2022 ) Respondent, ) ) v. ) No. SC99000 ) MISSOURI COMMISSION ON ) HUMAN RIGHTS, ) ) Appellant, ) ) ALISA WARREN, ) ) Appellant, and ) ) ARMSTRONG TEASDALE, LLP, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Bryan E. Round, Judge

The Missouri Commission on Human Rights and its Executive Director, Alisa

Warren, (collectively, the “Commission”), and Armstrong Teasdale, LLP (the “Law

Firm”) appeal the circuit court’s judgment issuing a permanent writ of mandamus in Jim

Swoboda’s favor. As relevant here, Swoboda filed a charge of discrimination with the

Commission against the Law Firm that was dismissed for lack of jurisdiction. After Swoboda sought judicial review, the circuit court directed the Commission to rescind the

dismissal, accept the charge, and conduct an investigation. Because Swoboda failed to

establish he is entitled to mandamus relief, however, the circuit court’s decision was

erroneous. The judgment is reversed, and the case is remanded.

Background

Swoboda filed a charge of discrimination against his employer, the Board of

Police Commissioners of Kansas City (the “Board”), and the Law Firm in February 2019.

The charge alleged that, in 2014, while Swoboda was a sergeant with the Kansas City

Police Department, he opposed the purported discrimination against another officer and

supported that individual in a formal legal claim against the Board. When Swoboda was

deposed in the case, an attorney from the Law Firm, which represented the Board,

allegedly informed him he should think about his career as he testified. Again, before

Swoboda testified at trial, an attorney from the Law Firm again allegedly advised him to

consider how his testimony could hurt the Board. After a mistrial, the other officer’s

claim was settled.

The charge indicated that, from October to December 2018, Swoboda took a leave

of absence due to medication issues and stress related to involvement with the other

officer’s claim, stating he used 46 sick, vacation, and compensation days. Swoboda

contended he received medical approval to return to full duty in December 2018 but was

placed on limited duty until January 2019. He further posited that, during this period, he

was 1) assigned menial tasks; 2) denied access to his vehicle, e-mail, and key card entry

for certain facilities; 3) not allowed to wear his uniform or carry a gun; 4) restricted from

2 accessing computers, confidential information, and records, despite being the custodian

of records; 5) excluded from Fraternal Order of Police meetings, Commander meetings,

department training, the unit holiday party, and work groups, committees, and projects;

and 6) removed from his positions of information management unit commander and

Custodian of Records. 1 He also purportedly lost his office and was assigned to work

from a storage closet. Swoboda believed all of these actions were taken against him in

retaliation for participating in the discrimination case because, once the claim was settled,

he regained access to his e-mail and restrictions on his key card entry were removed.

Yet, at the time the charge was filed, his department vehicle had not been returned.

The charge named the Board as well as the Law Firm and listed retaliation,

disability, and “[o]ther: [a]iding and [a]betting” as the types of discrimination. 2 In March

2019, the Commission issued a letter regarding Swoboda’s claims against the Law Firm:

The investigation of the [] complaint has determined that the [Commission] lacks jurisdiction over this matter because there is no employer-employee relationship between [Swoboda] and [the Law Firm]. Therefore, [the Commission] is administratively closing this case and terminating all [] proceedings relating to your complaint.

Swoboda filed a petition for a writ of mandamus in the circuit court, seeking to require

the Commission to vacate its dismissal and accept and investigate his claim. The circuit

court directed the Commission to respond to the petition. The Law Firm filed a motion to

intervene, which the court later sustained without objection. The Commission and the

1 The charge provided specific examples for some of these allegations. 2 The Commission, in August 2019, issued a right-to-sue letter for the claims against the Board. Swoboda filed a corresponding action in October 2019. 3 Law Firm also filed motions to dismiss, alleging Swoboda failed to state a claim upon

which relief could be granted. The circuit court entered an order, judgment, and

permanent writ of mandamus, finding the Commission erroneously dismissed Swoboda’s

charge without issuing a right-to-sue letter and directing the Commission to rescind its

dismissal, accept the charge, and conduct an investigation. 3 The Commission and the

Law Firm appeal. 4

Standard of Review

If a circuit court, pursuant to section 536.150, 5 grants relief from an administrative

agency’s decision, this Court reviews the ruling like any other court-tried case. Furlong

Cos., Inc. v. City of Kan. City, 189 S.W.3d 157, 168 (Mo. banc 2006). The judgment will

be affirmed unless it is not supported by substantial evidence, is against the weight of the

evidence, erroneously declares the law, or erroneously applies the law. Id. Questions of

law, including matters of statutory interpretation, are reviewed de novo. State ex rel.

Tivol Plaza, Inc. v. Mo. Comm’n on Hum. Rts., 527 S.W.3d 837, 841 (Mo. banc 2017)

(expressing the rule in the context of reviewing the denial of a writ of mandamus).

Analysis

The Commission and the Law Firm, for distinct reasons, contend the circuit

court erred in entering judgment in Swoboda’s favor and issuing a permanent writ of

3 Previously, the circuit court issued a similar order. After the Commission and the Law Firm appealed, the proceeding was dismissed for lack of a final, appealable judgment. The Commission subsequently asked the circuit court to denominate its prior order as a judgment. 4 After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. 5 All citations to section 536.150 are to RSMo 2016. All other statutory references are to RSMo Supp. 2018, unless otherwise specified. 4 mandamus because such relief was inappropriate here. 6 The Commission posits the

decision to administratively close a complaint for lack of jurisdiction is a discretionary

action that cannot be controlled by mandamus, while the Law Firm alleges mandamus

was improper because Swoboda was attempting to establish a new right rather than

enforce an existing right. This Court finds the Law Firm’s argument dispositive. 7

Regarding judicial review of administrative agency proceedings, article V, section

18 of the Missouri Constitution provides:

All final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi- judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record. Unless otherwise provided by law, administrative decisions, findings, rules and orders subject to review under this section or which are otherwise subject to direct judicial review, shall be reviewed in such manner and by such court as the supreme court by rule shall direct and the court so designated shall, in addition to its other jurisdiction, have jurisdiction to hear and determine any such review proceeding.

Pursuant to this provision, reviewing courts, when a hearing is not held, are required to

ascertain whether the decision of an administrative agency is authorized by law. Notably,

6 The Commission and the Law Firm also argue the circuit court’s decision was improper because applicable statutes require an employment relationship for these claims. They contend the charge, due to the absence of an employment relationship between Swoboda and the Law Firm, was properly dismissed. 7 Accordingly, this Court does not decide whether 1) the Commission’s decision to administratively close the complaint for lack of jurisdiction is subject to control by mandamus or 2) applicable statutes require an employment relationship to pursue the claims at issue. 5 article V, section 18, by dictating review is conducted “as provided by law,” allows the

legislature to create additional rules in this area.

The proceeding at issue constitutes a noncontested case, judicial review of which

is governed by section 536.150. Subsection 1 of that statute provides the scope of review:

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, certiorari, 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[.]

In accordance with this provision, the administrative agency’s decision may be reviewed

by an action for an injunction, certiorari, mandamus, prohibition, or another appropriate

suit. Regarding other possible proceedings, general petitions for review are often filed.

See, e.g., Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49, 51-53 (Mo. banc 2001); Spurgeon

v. Mo. Consol. Health Care Plan, 481 S.W.3d 604, 606 (Mo. App. 2016); Ard v. Shannon

Cnty. Comm’n, 424 S.W.3d 468, 474-75 (Mo. App. 2014). For some of the specified

actions, the common law provides various rules. See, e.g., State ex rel. Off. of Pub.

Couns. v. Pub. Serv. Comm’n of Mo., 236 S.W.3d 632, 635 (Mo. banc 2007) (discussing

writs of mandamus); Hansen v. State, Dep’t of Soc. Servs., Fam. Support Div., 226

6 S.W.3d 137, 141 (Mo. banc 2007) (addressing writs of prohibition). Section 536.150.1

also includes several standards.

This case presents the following issue: When an individual seeks judicial review

of a noncontested case by filing a petition for a writ of mandamus, must the party

establish a clear, unequivocal, specific right to relief?8 This Court determines such a

showing is required. The dissenting opinion attacks this holding on various grounds.

First, it suggests the scope of judicial review will fall below the constitutionally

guaranteed standard. As explained above, article V, section 18 provides review

proceedings “shall include the determination whether the [administrative agency’s

decision is] authorized by law.” The dissenting opinion characterizes this requirement as

a mandatory minimum scope of review that does not require legislation to become

effective. See Wood v. Wagner Elec. Corp., 197 S.W.2d 647, 649 (Mo. banc 1946). This

Court’s holding is consistent with this standard. Article V, section 18 provides review

must be conducted “as provided by law” and does not state what must be established to

obtain specific forms of relief. Instead, it explains how reviewing courts analyze the

propriety of agency decisions. Of course, the standard remains relevant when individuals

seek relief via a writ of mandamus because reviewing courts must apply both the

requirement that an individual seeking recourse prove a clear, unequivocal, specific right

and ascertain whether the agency’s decision was authorized by law.

8 The dissenting opinion questions the applicability of other requirements to obtain original writs, such as the principle that the availability of another adequate legal remedy precludes relief. Because Swoboda must establish a clear, unequivocal, specific right and his failure to do so is dispositive, this Court need not address the applicability of any other requirements. 7 As a general note, many of the cases the dissenting opinion cites address the

propriety of applying common law requirements for writs of certiorari as opposed to

referencing mandamus cases, which uniquely require one to prove a clear, unequivocal,

specific right. Importantly, the rules governing common law certiorari severely limit the

instances in which the writ may issue. See State ex rel. Police Ret. Sys. of City of St.

Louis v. Murphy, 224 S.W.2d 68, 73 (Mo. banc 1949) (“[The writ’s] chief purpose is to

confine an inferior tribunal within jurisdictional limits.”). Dissimilarly, the requirement

that an individual seeking relief by mandamus must prove a clear, unequivocal, specific

right does not restrict the permissible scope of inquiry in a similar manner. As a result,

the value of the cases the dissenting opinion cites is diminished.

More specifically, the dissenting opinion relies on Murphy to argue common law

writ requirements may violate the minimum standard imposed by the Missouri

Constitution. In that case, the statute providing judicial review was available only

through the common law writ of certiorari. Id. at 73. This Court, in addressing the

validity of the provision, noted, “Common law certiorari does not bring the whole record,

as that term is generally understood, to the reviewing court. Its chief purpose is to

confine an inferior tribunal within jurisdictional limits.” Id. Murphy held the statute’s

requirement was incompatible with the constitutional standard, as some cases may

require evidence to be considered. Id. The mandamus requirement at issue here differs

significantly from the common law writ of certiorari, which may only be utilized to

impose jurisdictional limits. Because of this limited inquiry, reviewing courts, in

certiorari cases, may not be able to engage in the analysis the constitution dictates (i.e.,

8 whether a decision was authorized by law). In mandamus actions, however, reviewing

courts must determine whether the respondent has shown a clear, unequivocal, specific

right to the requested relief; they simply do so in the context of applicable rules. For

these reasons, this Court’s holding today is consistent with article V, section 18.

Second, the dissenting opinion argues requiring one to prove a clear, unequivocal,

specific right to relief in this context is inconsistent with section 536.150.1, which states

reviewing courts may ascertain whether the administrative agency’s decision “[was]

unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involve[d] an abuse

of discretion.” When interpreting statutory language, this Court seeks to identify the

legislature’s intent by considering the plain meaning of statutory language. Holmes v.

Steelman, 624 S.W.3d 144, 149 (Mo. banc 2021). As a matter of presumption, the

legislature 1) is aware of existing law when passing a statute, State ex rel. Nothum v.

Walsh, 380 S.W.3d 557, 567 (Mo. banc 2012); 2) intend all words used to have meaning,

State ex rel. Goldsworthy v. Kanatzar, 543 S.W.3d 582, 585 (Mo. banc 2018); and 3)

does not include unnecessary or superfluous language. Alberici Constructors, Inc. v. Dir.

of Revenue, 452 S.W.3d 632, 638 (Mo. banc 2015).

Regarding section 536.150.1, the legislature presumptively knew the existing law

surrounding the listed actions and intended for all language to have meaning. In this

context, requiring individuals seeking mandamus relief, in accordance with the common

law, to prove a clear, unequivocal, specific right to obtain recourse, is consistent with the

above provision. While applying that requirement, of course, the reviewing court must

determine whether the agency’s decision “[was] unconstitutional, unlawful,

9 unreasonable, arbitrary, or capricious or involve[d] an abuse of discretion.” The

dissenting opinion contends the standards listed in section 536.150.1 should apply to all

actions seeking judicial review of noncontested cases without the necessity of following

the common law rule, regardless of the named relief. Yet such an interpretation fails to

give effect to all of the statutory language and renders a portion of the statute—the list of

actions—meaningless. To achieve the result advocated by the dissenting opinion, the

legislature, rather than stating “such decision may be reviewed by suit for injunction,

certiorari, mandamus, prohibition or other appropriate action,” would have simply

provided “such decision may be reviewed by an action in which the court. . .” followed

by a description of what the proceedings entail.

The interpretation adopted by this opinion is consistent with precedent as well.

This Court has “noted . . . the intent of the [statute] was that the several types of action

specified therein were to be made more flexible and adaptable so as to [mold] them to fit

the needs of those aggrieved by non-contested administrative decisions . . . .” State ex

rel. State Tax Comm’n v. Walsh, 315 S.W.2d 830, 835 (Mo. banc 1958). In continuation,

it explained that result was achieved “by making provision for taking evidence, and thus

permit[ting] the court to determine for itself the facts relevant to the question at issue.”

Id. (emphasis added). Contrary to the dissenting opinion’s suggestion, Walsh does not

undermine this opinion. That case determined the listed actions, via the provision that the

reviewing court could now take evidence and determine facts, became more flexible.

The holding, of course, is sensible, as the statutory provision applies when the

administrative body did not hold formal proceedings and there is no record for review.

10 Furlong, 189 S.W.3d at 165. Walsh focused on a reviewing court’s ability to receive

evidence and find facts. It did not find the statute usurped all applicable common law

rules or standards of proof. This Court’s decision, which does not impact the ability to

receive evidence or find facts, is consistent with Walsh. 9

More recently, this Court has discussed judicial review of noncontested cases.

See Lampley v. Mo. Comm’n on Hum. Rts., 570 S.W.3d 16, 20-22 (Mo. banc 2019).

9 The dissenting opinion relies on State ex rel. Leggett v. Jensen, 318 S.W.2d 353 (Mo. banc 1958). There, this Court noted that, if a record was not created below, “the remedies of certiorari, mandamus, etc., are frequently inadequate, because of the inability of the court to consider the facts bearing on the merits of the agency’s decision, because no record of evidence has been made for the court to review.” Id. at 356 (internal quotation omitted). It explained the statute corrected the shortcoming by “giv[ing] the court power to hear evidence on the merits of the . . . case before the agency, so that it can determine in the light of the facts as they appear to the court whether the agency’s decision is proper.” Id. at 357 (internal quotation omitted). Leggett, much like Walsh, focused primarily on a reviewing court’s ability to receive evidence and find facts. This Court’s opinion does not speak to those practices; as explained above, the propriety of the agency’s decision must be analyzed. The dissenting opinion also notes writ actions seeking review of administrative proceedings levied under section 536.150.1 are distinct from common law writ proceedings. See, e.g., State ex rel. Wilson Chevrolet, Inc. v. Wilson, 332 S.W.2d 867, 872 (Mo. 1960); Bates v. City of St. Louis, 728 S.W.2d 232, 234 (Mo. App. 1987). It relies on State ex rel. Schneider v. Stewart, 575 S.W.2d 904 (Mo. App. 1978). In that case, the appellate court outlined the limitations of the common law writ of certiorari and explained: The function of this statutory writ, however, is not confined to questions of jurisdiction or errors on the face of the record not otherwise reached by appeal, but allows for evidence and determinations of fact towards adjudication of whether the administrative 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.” In short, [the statute] constitutes the certiorari court with the function of an administrative tribunal in a contested case which hears evidence, makes a record and enters a decision on the facts found[,] a role extraneous to the common law writ of certiorari. Id. at 908 n.2 (citations omitted). Under the type of adjudication Schneider describes, the actions at issue continue to differ from common law writ actions. Reviewing courts are able to receive evidence, find facts, and consider the issues listed in section 536.150.1, regardless of prior common law requirements. As such, the authority the dissenting opinion cites does not undermine this Court’s holding. 11 There, Lampley and a co-worker, Frost, filed discrimination charges . Id. at 19. After

opening investigations, the Commission determined Lampley advanced a claim of

discrimination based on sexual orientation and Frost’s claim was based on an association

with someone who is gay. Id. at 20. The Commission found these claims were not

covered by applicable statutes and administratively closed the proceedings. Id. Lampley

and Frost, through petitions for administrative review or for a writ of mandamus, asked

the circuit court to require the Commission to issue right-to-sue letters. Id. The circuit

court granted summary judgment in the Commission’s favor, finding Lampley’s and

Frost’s claims were not cognizable. Id. On appeal, this Court held the Commission

improperly determined the claims at issue were based on sexual orientation

discrimination, finding, instead, that Lampley and Frost asserted they were discriminated

against because they failed to conform to typical sexual stereotypes. Id. at 23. It

reversed the lower judgment, remanded the case, and directed the circuit court to order

the Commission to issue right-to-sue letters. Id. at 26.

Admittedly, this Court did not reference mandamus standards other than

procedural rules regarding issuance of a preliminary writ, see id. at 20-26, and stated:

The circuit court does not review the record for competent and substantial evidence, but instead conducts a de novo review in which it hears evidence on the merits, makes a record, determines the facts and decides whether the agency’s decision is unconstitutional, unlawful, unreasonable, arbitrary, capricious or otherwise involves an abuse of discretion.

Id. (quoting City of Valley Park v. Armstrong, 273 S.W.3d 504, 508 (Mo. banc 2009)).

While separate opinions directly discussed standards of review for noncontested cases,

see id. at 27 n.2 (Wilson, J., concurring) (stating statutory rules apply regardless of the

12 review sought); Id. at 38 n.8 (Powell, J., dissenting) (indicating mandamus standards

govern), the principal opinion is less clear. Rather than directly determining a clear,

unequivocal, specific right need not be established, it 1) held one was not limited to

seeking review by a writ of mandamus; 2) acknowledged the case’s unique procedural

posture; and 3) indicated that, despite procedural issues, it was exercising its discretion to

permit the case to move forward, in part, because “[n]one of the parties nor the circuit

court objected to or questioned the procedure” and “the participants . . . believed they

were acting properly.” Id. at 20-22.

In light of these circumstances, the present case is distinguishable, as the parties

vigorously contest whether substantive mandamus rules apply. And because Lampley

focused largely on other issues and did not clearly hold the common law mandamus

requirement was inapplicable, it does not definitively address the issue at bar, despite the

dissenting opinion’s contrary assertions. 10

Additionally, this Court has referenced mandamus standards when individuals

seek such relief to review noncontested cases. See, e.g., State ex rel. Robison v. Lindley-

Myers, 551 S.W.3d 468, 472-74 (Mo. banc 2018); Furlong, 189 S.W.3d at 165-66.

These matters were decided after Walsh and were not overruled by Lampley, further

10 The dissenting opinion cites various cases that do not reference or apply common law mandamus standards in this context. See State, ex rel. Martin-Erb v. Mo. Comm’n on Hum. Rts., 77 S.W.3d 600, 608 (Mo. banc 2002); Van Kirk v. Bd. of Police Comm’rs of Kan. City, 586 S.W.2d 350, 353 (Mo. banc 1979); State ex rel. Union Elec. Co. v. Goldberg, 578 S.W.2d 921, 922 n.1, 924 (Mo. banc 1979). These cases do not directly state individuals seeking relief are not required to establish a clear, unequivocal, specific right or indicate the parties disputed that requirement. Martin-Erb, 77 S.W.3d at 607-609; Van Kirk, 586 S.W.2d at 353-54; Goldberg, 578 S.W.2d at 923-24. They are distinguishable, failing to explicitly resolve the issue presented here. 13 establishing the Court’s approach today is consistent with those opinions. For these

reasons, the selection of a mandamus action for review is meaningful because the

individual seeking relief will be required to prove a clear, unequivocal, specific right to

relief. 11

The dissenting opinion’s contention that this Court’s opinion runs contrary to law

establishing the label ascribed to an action for review is insignificant is specious. First,

although Swoboda’s action for review was labeled as seeking mandamus relief, his

petition and suggestions in support stated the Commission violated the standards listed in

section 536.150.1. Yet the petition also indicated Swoboda was asserting a “clear,

unequivocal, specific right.” Later, the Commission and the Law Firm filed motions to

dismiss, both of which, for various reasons, contended a writ of mandamus would not lie

because relevant requirements could not be satisfied. In suggestions in opposition to both

motions, Swoboda did not argue those principles were inapplicable or advance a different

standard. Instead, he seemingly abided by the rules for mandamus actions and focused

on the merits of his claim. On appeal to this Court, the Commission and the Law Firm

strenuously argued a writ of mandamus was not appropriate. Again, Swoboda, rather

than clearly disputing the applicability of the standards, simply contented he could meet

11 The dissenting opinion argues this Court fails to provide the additional protection intended to result from the enactment of section 536.150 and erects unnecessary barriers to judicial review of noncontested cases. More robust protections, however, are available. For example, a reviewing court receives evidence, finds facts, and considers the issues listed in section 536.150.1, regardless of prior common law requirements. General actions for review under section 536.150.1, like those referenced elsewhere in this opinion, are now available as well. Moreover, this Court does not attempt to erect barriers to judicial review of noncontested cases or treat litigants unfairly. Instead, it merely operates within the framework provided by the applicable statute. 14 them. These actions are far more significant than a label; the proceedings, in essence,

revolved around Swoboda’s entitlement to mandamus relief under common law rules.

Second, the cases cited by the dissenting opinion are distinguishable. In each case,

the individual seeking relief filed a general action. See Hagely v. Bd. of Educ. of Webster

Groves Sch. Dist., 841 S.W.2d 663, 670 (Mo. banc 1992) (failing to characterize the suit

as a listed action); Morrell v. Harris, 418 S.W.2d 20, 21 (Mo. 1967) (addressing a

petition for review of an agency’s decision); Phipps v. Sch. Dist. of Kan. City, 588

S.W.2d 128, 129 (Mo. App. 1979) (same). Despite a lack of specificity, the petitions

were sufficient to obtain review. See Hagely, 841 S.W.2d at 670; Morrell, 418 S.W.2d at

22; Phipps, 588 S.W.2d at 133-34. This action differs significantly because Swoboda,

throughout the proceedings, has consistently maintained this suit as one for mandamus

relief. He filed a petition for a writ of mandamus, cited the standard at issue, and

subsequently—before the circuit court and this Court—accepted the application of

mandamus rules.

To obtain a writ of mandamus, one must establish “a clear, unequivocal, specific

right to a thing claimed.” Furlong, 189 S.W.3d at 166. “The right . . . must be clearly

established and presently existing[,]” and “the purpose of the writ is to execute, not

adjudicate.” State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 576 (Mo. banc 1994).

Mandamus proceedings cannot create or clarify the existence of a right; instead,

mandamus relief is appropriate to enforce only a previously delineated right. Id.

In some circumstances, statutes may create a right enforceable by mandamus. See

State ex rel. Hodges v. Asel, 460 S.W.3d 926, 927 (Mo. banc 2015); State ex rel. Hewitt

15 v. Kerr, 461 S.W.3d 798, 805 (Mo. banc 2015). In others, however, statutes may not

provide a sufficient basis for mandamus relief. See Chassaing, 887 S.W.2d at 576-77.

In Chassaing, this Court analyzed whether a writ of mandamus would issue to

allow certain discovery in a statutory contempt action. Id. at 575-76. The provision at

issue allowed an agency to ask a circuit court to institute contempt cases and provided

guidance regarding additional proceedings. Id. at 577-78. It did not mention discovery.

Id. This Court found a writ of mandamus was inappropriate, stating, “The question of

whether discovery is available in [these proceedings] has not previously been decided by

a Missouri court.” Id. at 576-77. It held Chassaing inappropriately sought to “establish a

right through a writ of mandamus, rather than to enforce a clearly established and

presently existing right.” Id. at 577; see also ACLU of Mo. v. Ashcroft, 577 S.W.3d 881,

898 (Mo. App. 2019) (stating “We therefore question the availability of mandamus in this

case of first impression, as before any remedy could be imposed, it was first necessary to

adjudicate the extent of the secretary of state’s authority to review a sample sheet for

sufficiency as to form pursuant to [the applicable statute].”). When a right does not

clearly flow from a statute and clarification is required, mandamus relief is

inappropriate. 12

12 At oral argument, Swoboda relied on Lampley in asserting statutes create rights enforceable by mandamus. That case is distinguishable from the present action. In Lampley, as explained above, this Court acknowledged the unique procedural posture and exercised its discretion to permit the case to move forward, in part, because the procedure was not disputed. 570 S.W.3d at 22. Moreover, although the right recognized—the ability to advance a discrimination claim based on sex stereotyping—was not explicitly discussed by the statute at issue, see id. (citing section 213.055.1(1)(a), RSMo 2000), this Court resolved the matter by looking to federal caselaw and state regulations elucidating the right. Id. at 24-26. 16 Because Swoboda sought a writ of mandamus, he must prove a clear, unequivocal,

specific right to proceed with his claims under the Missouri Human Rights Act (the

“Act”). 13 Without a prior or present employment relationship with the Law Firm, he

seeks to advance a claim against it as an employer. Yet, as explained below, he has not

shown relevant statutes clearly allow him to pursue such a claim, particularly in light of

the General Assembly’s 2017 amendments to the Act (the “2017 Amendments”). 14

13 The dissenting opinion unpersuasively argues this requirement can be avoided if Swoboda’s petition is treated as one for a writ of prohibition rather than mandamus. Initially, the dissenting opinion relies on cases involving original writ proceedings, see State ex rel. Beutler, Inc. v. Midkiff, 621 S.W.3d 491, 492 (Mo. banc 2021); Chassaing, 887 S.W.2d at 575; State ex rel. Haley v. Groose, 873 S.W.2d 221, 222 (Mo. banc 1994), not the appeal of a circuit court’s review of an administrative agency’s decision. The ability to select and provide a different form of relief than that granted by the circuit court is questionable, and the cited authority fails to establish this Court can do so. In any event, the cases are distinguishable on other grounds. In Chassaing, the individual sought both a writ of prohibition and a writ of mandamus. 887 S.W.2d at 575. While this Court, at first, issued a writ of mandamus, both types of recourse were originally at issue. Id. The opinion also noted the opposing party would not suffer prejudice, even if the petition for a writ of mandamus, as a matter of discretion, was treated as a writ of prohibition. Id. The case at bar, however, has never involved a writ of prohibition. Further, the Commission and Law Firm would likely be prejudiced by an exercise of discretion. They both advance arguments centered on mandamus standards, and Swoboda has not seriously disputed their application. In other matters in which this Court has exercised its discretion, another remedy was clearly appropriate to provide relief for the alleged harm. See Midkiff, 621 S.W.3d at 492-93 (noting a petition for a writ of mandamus was filed but indicating a prior case stated prohibition would lie); Haley, 873 S.W.2d at 222-23 (explaining habeas corpus was inappropriate, but a writ of mandamus could issue). The concern here, though, is that Swoboda cannot meet the requisite requirement to obtain mandamus relief. His petition for a writ of mandamus should not be treated as one for a writ of prohibition. 14 Swoboda suggests the true concern is his right to a right-to-sue letter under section 213.111.1. At oral argument, he reiterated that contention and questioned why determining whether a claim is cognizable under the Act is a question of jurisdiction. These concerns are misplaced. Section 213.075.1 states, “The commission shall make a determination as to its jurisdiction with respect to all complaints[,]” and 8 C.S.R. 60-2.025(7)(B)3 provides the executive director or a designee may, at any time prior to the setting of a public hearing, administratively close a complaint “[f]or lack of jurisdiction[.]” Jurisdiction, as relevant to administrative agencies, does not mean subject matter jurisdiction, which is constitutionally granted only to courts; instead, the term refers to statutory authority to take certain actions. Cass Cnty. v. Dir. of Revenue, 550 S.W.3d 70, 74 17 The following provisions of the Act are relevant to Swoboda’s claim:

1. It shall be an unlawful discriminatory practice for an employer, employment agency, labor organization, or place of public accommodation:

(1) To aid, abet, incite, compel, or coerce the commission of acts prohibited under this chapter or to attempt to do so;

(2) To retaliate or discriminate in any manner against any other person because such person has opposed any practice prohibited by this chapter or because such person has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter[.]

....

2. This chapter, in addition to chapter 285 and chapter 287, shall provide the exclusive remedy for any and all claims for injury or damages arising out of an employment relationship.

Section 213.070. “Employer” is defined as

a person engaged in an industry affecting commerce who has six or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and shall include the state, or any political or civil subdivision thereof, or any person employing six or more persons within the state but does not include corporations and associations owned or operated by religious or sectarian organizations.

Section 213.010(8).

(Mo. banc 2018). This Court has implicitly recognized that, if a claim is not cognizable under the Act, the Commission lacks power to investigate the claim. Cf. Lampley, 570 S.W.3d at 25-26 (holding, because the Act prohibited the conduct at issue, the Commission had statutory authority to investigate the claims). Consequently, the relevant issue is whether the Act allows section 213.070.1 claims absent an employment relationship, which is a question of first impression. 18 First, the 2017 Amendments included language regarding an employment

relationship when it adopted section 213.070.2. Compare section 213.070.2 (stating

“This chapter, in addition to chapter 285 and chapter, shall provide the exclusive remedy

for any and all claims for injury or damages arising out of an employment relationship.”

(emphasis added)), with section 213.070, RSMo 2016 (lacking any language regarding an

“employment relationship”). Therefore, although the Act does not expressly state an

employment relationship is required, the 2017 Amendments bring into question the

possibility of such a concept or requirement.

Second, the 2017 Amendments added language to section 213.070 regarding

employers and employment agencies. Compare section 213.070.1 (“It shall be an

unlawful discriminatory practice for an employer, employment agency, labor

organization, or place of public accommodation . . .), with section 213.070, RSMo 2016

(“It shall be an unlawful discriminatory practice . . .”). This qualifying language

pertaining to employers could be read to reduce the scope of section 213.070.

Finally, the 2017 Amendments altered the definition of “employer.” Compare

section 213.010(7), RSMo 2016 (“‘Employer’ includes . . . any person directly acting in

the interest of an employer . . . .”), with section 213.010(8) (removing such language and

adding other qualifications as to what constitutes an “employer” for purposes of the Act).

In light of the 2017 Amendments, Swoboda’s right to assert a claim under section

213.070.1 does not clearly flow from the Act.

Moreover, the decisional law upon which Swoboda relies does not provide

assistance. Swoboda asserts Keeney v. Hereford Concrete Products, Inc., 911 S.W.2d

19 622 (Mo. banc 1995), establishes he has a clear, specific, unequivocal right to relief in

this case. Keeney, however, is distinguishable from the present action. In that case,

Keeney filed an action alleging Hereford Concrete Products, his prior employer, engaged

in retaliation by terminating his severance payments. Id. at 623. The circuit court denied

the claim, finding Keeney and Hereford did not have an employer-employee relationship

at the time of the alleged retaliation. Id. at 623-24. On appeal, this Court found the

language of section 213.070, RSMo 1994, which “render[ed] retaliation ‘in any manner

against any other person’ an unlawful discriminatory practice[,]” was broad as well as

clear and unambiguous. Id. at 624. It ultimately determined that provision “d[id] not

limit itself to the employer-employee relationship[,]” reversed the circuit court’s

judgment, and remanded the case. Id. at 625-26.

First, Keeney did not decide whether one can advance a claim absent a past or

present employment relationship, stating this Court “need not explore the outer

boundaries of section 213.070[, RSMo 1994,] in this case. Where, as here, the alleged

victim of retaliation is a former employee of the company charged with committing a

retaliatory act, the claim promotes the Act’s purpose of prohibiting discrimination or

retaliation in employment.” Id. at 625. Here, Swoboda never had an employment

relationship of any kind with the Law Firm.

Second, the statutes referenced in Keeney were altered by the 2017 Amendments.

Compare sections 213.070 and 213.010(8), with sections 213.070 and 213.010(6), RSMo

1994. As explained above, the changes may impact whether an employment relationship

is required for claims brought pursuant to section 213.070.1. And—even though the “in

20 any manner against any other person” language utilized in Keeney remains unchanged,

compare section 213.070.1(2), with section 213.070(2), RSMo 1994—alterations to other

provisions may be significant. See Goldsworthy, 543 S.W.3d at 585 (“The plain and

ordinary meaning of the words in a statute is determined from the words’ usage in the

context of the entire statute.”). Keeney does not establish Swoboda has a clear, specific,

unequivocal right to assert a claim against the Law Firm absent an employment

relationship. 15

Mandamus proceedings may be used to enforce a clear, specific, unequivocal right

that is presently existing. They cannot be utilized to adjudicate whether an individual is

afforded a right but, rather, can compel performance of a right only that has already been

established. Here, the ability to pursue a claim under section 213.070.1, absent an

employer-employee relationship, does not plainly follow from relevant statutory

provisions. Swoboda does not cite any prior Missouri decisional law that has interpreted

section 213.070 to not require an employment relationship, nor does he produce any other

authority demonstrating he can pursue his claim. Rather than seeking to enforce a

previously delineated right, Swoboda attempted to adjudicate whether, under applicable

statutes, his claim was permissible. The issuance of mandamus relief was foreclosed in

15 Swoboda also cites King v. Chrysler Corp., 812 F. Supp. 151 (E.D. Mo. 1993), and notes federal discrimination decisional law, if it is consistent with Missouri law, may guide state courts when interpreting state law. See Lampley, 570 S.W.3d at 22. He alleges King is consistent with Missouri law because section 213.070.1 and the applicable provision of Title VII did not specify an employment relationship is required. King, however, is unhelpful in light of the 2017 Amendments. The relevant provision of Title VII did not contain language similar to the current section 213.070.2, see 42 U.S.C. § 2000e-2 (1988), and, unlike the current version of section 213.010(8), the definition of “employer” included “any agent of [an employer].” See King, 812 F. Supp. at 153 (citing 42 U.S.C. § 2000e(b) (1988)). 21 this case in which an issue of first impression is presented. The circuit court’s decision to

grant relief was in error.

Conclusion

The judgment is reversed, and the case is remanded.

______________________________ Mary R. Russell, Judge

Powell, Fischer and Ransom, JJ., concur; Wilson, C.J., dissents in separate opinion filed; Breckenridge and Draper, JJ., concur in separate opinion of Wilson, C.J.

22 SUPREME COURT OF MISSOURI en banc

STATE ex rel. JIM SWOBODA, ) ) Respondent, ) ) v. ) No. SC99000 ) MISSOURI COMMISSION ON ) HUMAN RIGHTS, ) ) Appellant, ) ) ALISA WARREN, ) ) Appellant, and ) ) ARMSTRONG TEASDALE, LLP, ) ) Appellant. )

DISSENTING OPINION

In Missouri, judicial review of administrative decisions is a matter of

constitutional significance. This constitutional imperative to protect individuals from

errant administrative decisions stands side by side with many of the most cherished and

zealously defended rights recognized in our jurisprudence. Article V, section 18 of the

Missouri Constitution charges the legislature, primarily, and this Court, secondarily, with

the responsibility for establishing the manner and means of vindicating this right. The legislature has done its part, enacting sections 536.100 1 and 536.150 and related

provisions, but this Court increasingly is failing to uphold its constitutional obligation to

do the same. Relying on inapplicable precedent and ignoring the plain language of article

V, section 18 and section 536.150, the principal opinion in this case significantly changes

the law and weakens this constitutional and statutory right to judicial review of

administrative decisions in noncontested cases. Future litigants will have to guess their

way through a seemingly endless procedural shell-game in hopes of securing the judicial

review of administrative decisions to which they are entitled. Faithful interpretation of

the constitution and defense of the right it guarantees demands more. Accordingly, I

respectfully dissent.

In reviewing a noncontested agency decision pursuant to section 536.150.1, a

reviewing court affirms the circuit court’s judgment determining whether the agency

decision is “unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves

an abuse of discretion,” section 536.150.1, “unless there is no substantial evidence to

support [the circuit court’s judgment], unless it is against the weight of the evidence,

unless it erroneously declares the law, or unless it erroneously applies the law,” Furlong

Cos., Inc. v. City of Kan. City, 189 S.W.3d 157, 168 (Mo. banc 2006). Questions of law,

including matters of statutory interpretation, are reviewed de novo. State ex rel. Tivol

1 Unless otherwise stated, all statutory references are to RSMo 2016. 2 Plaza, Inc. v. Mo. Comm’n on Hum. Rts., 527 S.W.3d 837, 841 (Mo. banc 2017)

(expressing the rule in the context of reviewing the denial of a writ of mandamus).

I. Swoboda Properly Invoked Judicial Review Under Section 536.150 and Is Entitled to All the Review That Statute Provides

When the people of Missouri ratified a new constitution in 1945, they included a

section requiring judicial review of administrative decisions, now found in article V,

section 18. It provides:

All final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record. Unless otherwise provided by law, administrative decisions, findings, rules and orders subject to review under this section or which are otherwise subject to direct judicial review, shall be reviewed in such manner and by such court as the supreme court by rule shall direct and the court so designated shall, in addition to its other jurisdiction, have jurisdiction to hear and determine any such review proceeding.

Mo. Const. art. V, § 18 (emphasis added).

Interpreting article V, section 18, this Court held the provision that “administrative

decisions ‘shall be subject to direct review by the courts as provided by law’ refers to the

method of review to be provided (certiorari, appeal, etc.).” Wood v. Wagner Elec. Corp.,

197 S.W.2d 647, 674 (Mo. banc 1946). The scope of review – whether the decision is

authorized by law and, in contested cases, whether it is supported by competent and

substantial evidence upon the whole record – applies regardless of the method of review

provided. Id. Nevertheless, the constitution guarantees the minimum scope of review

3 (i.e., whether the decision is authorized by law and, in contested cases, whether it is

supported by competent and substantial evidence upon the whole record), and this

constitutional minimum “is mandatory and requires no legislation to put it into effect.”

Id. Jim Swoboda seeks to have this Court review the Commission’s decision to see if its

conclusion that it lacked jurisdiction over his claim was authorized by law. As explained

below, if this Court granted the review to which he is entitled, the answer would be a

resounding “no.”

In State ex rel. Police Retirement System of City of St. Louis v. Murphy, 224

S.W.2d 68, 73 (Mo. banc 1949), a statute provided for judicial review of decisions of the

board of trustees of the police retirement system “by the common law writ of certiorari,

only.” Under the common law, certiorari relief is available only “to confine an inferior

tribunal within jurisdictional limits.” Id. This Court, therefore, held it was not bound by

that common law restriction because doing so was “repugnant” to the minimum scope of

review article V, section 18 requires. 2 Id. This is significant in that, in one of the very

first cases decided under this new constitutional provision, this Court refused to allow

common law restrictions that usually attend extraordinary writs (i.e., the method of

review) to frustrate the scope of review guaranteed by the constitution. Here, however,

the principal opinion uses the same sort of common law restriction regarding the writ of

mandamus to frustrate Swoboda’s right to review.

2 At the time of this Court’s decision in Murphy, the minimum scope of review referenced above was found in article V, section 22. 4 Of course, the right to judicial review of administrative decisions does not rest on

the constitution alone. The first sentence of article V, section 18 authorizes the General

Assembly to enact laws vindicating the right the constitution sought to protect and it

quickly did so. In 1945, the General Assembly enacted section 536.100, providing the

mechanism for judicial review in “contested cases,” but it did not enact a procedure for

review of all other forms of administrative decisions. State ex rel. State Tax Comm’n v.

Walsh, 315 S.W.2d 830, 834 (Mo. banc 1958). As a result, for a brief period of time after

the constitutional provision was approved, the only review of administrative decisions not

covered by section 536.100 was by resort to extraordinary writs of mandamus,

prohibition, certiorari, and the like.

Against the backdrop of Murphy (i.e., that common law writ restrictions cannot

deprive relators of the scope of judicial review protected in article V, section 18), the

General Assembly enacted in 1953 what is now section 536.150. This statute provides

both the method and the scope of the judicial review guaranteed by article V, section 18

for all those administrative decisions not covered by section 536.100. It states:

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, certiorari, 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 [1] unconstitutional, [2] unlawful,

5 [3] unreasonable, [4] arbitrary, or [5] capricious or [6] 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.

§ 536.150.1 (emphasis added).

Shortly after section 536.150 was enacted, this Court stressed – much as it had in

Murphy – that the new section 536.150 was intended to circumvent the common law

restrictions associated with the conventional forms of the extraordinary writs of

mandamus, prohibition, certiorari and the like to ensure the constitutional right of judicial

review of administrative decisions was protected.

It is particularly to be noted that the the [sic] intent of the bill was that the several types of action specified therein were to be made more flexible and adaptable so as to mould [sic] them to fit the needs of those aggrieved by non-contested administrative decisions by making provision for taking evidence, and thus permit the court to determine for itself the facts relevant to the question at issue – a sort of statutory certiorari, for instance.

Walsh, 315 S.W.2d at 835 (emphasis added).

Walsh looked to the language of 536.150, which provides that – regardless of the

method used to invoke judicial review – the circuit may make factual determinations in

the first instance and then “determine whether [the agency] 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.” 3 Based on this language, Walsh properly

3 The principal opinion argues this interpretation is incorrect because it renders the list of common law remedies superfluous. But, as Walsh explains, the General Assembly was not 6 concludes that common law restrictions on the writs listed in section 536.150 cannot be

applied when those writs are used to invoke judicial review under that statute if doing so

denies the petitioner access to the six-factor judicial review that section 536.150

promises. Walsh, 315 S.W.2d at 835 (holding section 536.150.1 was intended to make

“the several types of action specified therein,” which includes mandamus, “more flexible

and adaptable so as to mould [sic] them to fit the needs of those aggrieved by non-

contested administrative decisions.”).

The Court again articulated this point in State ex rel. Leggett v. Jensen, 318

S.W.2d 353, 356-57 (Mo. banc 1958):

There are numerous cases, however, where agencies may act without having a hearing or making a record of evidence heard. In those cases the remedies of certiorari, mandamus, etc., are frequently inadequate, because of the inability of the court to consider the facts bearing on the merits of the agency’s decision, because no record of evidence has been made for the court to review.

This bill is designed to correct this situation. It provides for the making in court, in a certiorari proceeding, for example, of the same kind of record that would be made before the agency in a case reviewable under Section [18] of Article V of the Constitution. In other words it gives the court

creating new causes of action or new forms of relief when it enacted section 536.150. Rather, the General Assembly took existing common law writs used to review administrative decisions in noncontested cases and made the scope of review (both factual and legal) under those writs uniform, providing a minimum amount of review regardless of the remedy sought. The principal opinion’s interpretation, on the other hand, renders the promise of the full six-factor judicial review promised by section 536.150.1 illusory because it holds those six standards can be considered only if there is no common law restriction on whatever writ the party seeking judicial review chooses. But this means a party can never obtain the maximum amount of judicial review provided in section 536.150 because all of the listed writs carry some sort of threshold common law restriction. Moving forward, perhaps parties seeking judicial review will fare better simply by identifying the petition as one seeking judicial review under section 536.150 rather than identifying any of the listed writs or, alternatively, by invoking each and every one of the listed writs in their petitions. It should be noted, however, that nothing in the principal opinion gives any assurance either of these approaches will work.

7 power to hear evidence on the merits of the plaintiff’s case before the agency, so that it can determine in the light of the facts as they appear to the court whether the agency’s decision is proper.

Id. (emphasis added) (internal quotation marks omitted).

This idea that actions filed for the purpose of invoking judicial review under

section 536.150.1 – however styled – are different from the traditional form of the writs

listed in that statute is nothing new. Examples beyond Walsh and Murphy abound. Even

though the writ of certiorari historically was treated as “a pristine common law action,”

Missouri courts have held that a petition for certiorari that invoked judicial review under

section 536.150.1 was something altogether different, calling it a “statutory certiorari”

that served merely as “a method for judicial review of an administrative determination.”

State ex rel. Schneider v. Stewart, 575 S.W.2d 904, 909 (Mo. App. 1978); see also State

ex rel. Wilson Chevrolet, Inc. v. Wilson, 332 S.W.2d 867, 872 (Mo. 1960) (referring to

the methods of review provided in section 536.150 as “statutory actions” (emphasis

added)); Bates v. City of St. Louis, 728 S.W.2d 232, 234 (Mo. App. 1987) (characterizing

the plaintiff’s petition as “a § 536.150, RSMo 1978 petition for writ of certiorari” and

referring to certiorari under section 536.150 as “statutory certiorari”). In opining about

whether the relators in Schneider sought the common law or the statutory writ, the court

of appeals explored the differences between the two actions:

The relators assert under a common law writ of certiorari. The writ issues to confine an inferior tribunal within the limits of a proper jurisdiction and to relieve a party from injury where there appears, as a matter of law from the record, that the inferior tribunal lacked, abused or was in excess of jurisdiction in the proceedings. State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 139 S.W.2d 958, 963 et seq. (11-18) (1940). The writ takes the record as it comes and does not take account of the evidence

8 which relates to the merits only. State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473, 476(3) (banc 1912).

The Administrative Procedure and Review Act (Chapter 536), § 536.150 (present Rule 100.08), on the other hand, accords judicial review by original writ of certiorari of an administrative decision not subject to administrative review (noncontested cases) where the administrative decision determines the legal right, duty or privilege of any person. The function of this statutory writ, however, is not confined to questions of jurisdiction or errors on the face of the record not otherwise reached by appeal (Iba v. Mosman, 231 Mo. 474, 133 S.W. 38, 41 (banc 1910); Neaf, supra, n.2, 139 S.W.2d l.c. 963), but allows for evidence and determinations of fact towards adjudication of whether the administrative 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.” In short, [§] 536.150 constitutes the certiorari court with the function of an administrative tribunal in a contested case which hears evidence, makes a record and enters a decision on the facts found (State ex rel. Walmar Investment Company v. Mueller, 512 S.W.2d 180, 182(1) (Mo.App.1974)) a role extraneous to the common law writ of certiorari. State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 73(10-12) (banc 1949).

Schneider, 575 S.W.2d at 908 n.2 (emphasis added).

This simple and obvious construction of section 536.150 applies just as well when

a petition for writ of mandamus is used to invoke the judicial review promised by

section 536.150.1. In State ex rel. Union Electric Co. v. Goldberg, 578 S.W.2d 921, 922

(Mo. banc 1979), the Court reviewed a mandamus suit brought “pursuant to [§] 536.150

to review the Director of Revenue’s denial of appellants’ claim for a sales tax refund.”

(Footnote omitted). The circuit court determined Union Electric’s sale of electricity to

Meramec Mining was not exempt from sale tax under section 144.030.3(11), RSMo

1969. Id. This Court reversed, finding the circuit court “erroneously applied the law”

and, in doing so, it did not apply the common law restrictions for a writ of mandamus that

9 apply in other circumstances. Id. at 924. Instead, it noted: “Section 536.150 RSMo

Supp. 1975 provides for review by injunction or original writ of administrative decisions

not otherwise subject to judicial review.” Id. at 922 n.1.

Similarly, in Van Kirk v. Board of Police Commissioners of Kansas City, 586

S.W.2d 350, 351-52 (Mo. banc 1979), which involved a petition for a writ of mandamus

seeking review of an agency decision, the Court did not cite, analyze, or apply any

common law restrictions that apply to mandamus in other contexts and, instead, affirmed

the circuit court’s judgment determining the agency’s discretion “was lawfully

exercised.” Id. at 353. In State ex rel. Martin-Erb v. Missouri Commission on Human

Rights, 77 S.W.3d 600, 608 (Mo. banc 2002), this Court held mandamus was available

under section 536.150 “to determine whether the executive director’s actions were [in

fact] accomplished under prescribed procedures and were lawful[.]” (First alteration in

original) (internal quotation omitted). The lawfulness of the agency decision, of course,

is one of the determinations a circuit court is authorized to make in a suit for mandamus

under section 536.150 and one of the forms of judicial review guaranteed by article V,

section 18. Martin-Erb does not cite or analyze the common law restriction that a relator

must demonstrate, as a threshold matter, a clear, unequivocal right to the thing claimed,

and the Court did not require the relator to do so.

In Furlong, the circuit court granted mandamus after determining the agency

decision was “unlawful, unreasonable, arbitrary, and capricious,” and this Court reviewed

the circuit court’s determination under the Murphy standard.

10 The trial court found that the city’s decision was “unlawful, unreasonable, arbitrary, and capricious in that the [city] failed to perform its ministerial duty, given that this court finds that [Furlong] met the subdivision regulations and the preliminary plat is consistent with the zoning ordinance.” The standard of review for a bench-tried case is well- established. An appellate court must sustain the decree or judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

Furlong, 189 S.W.3d at 168. This Court then affirmed the circuit court’s decision to

grant mandamus, holding: “There was substantial evidence for the trial court to find that

the city’s decision to deny approval of Furlong’s preliminary plat was unlawful,

unreasonable, arbitrary, and capricious.” Id. at 169. Even though Furlong recites the

common law threshold restriction of clearly existing right to a ministerial duty as a

prerequisite to judicial review under section 536.150, it was the only decision since the

statute was enacted in 1953 to do so, and the authority cited comes from outside the

context of a petition seeking judicial review under section 536.150.1. Furlong does not

analyze this threshold common law restriction nor require the relator to meet it.

The only decision since section 536.150 was enacted in 1953 to actually apply the

threshold common law restriction that courts must not engage in the judicial review

promised by that statute unless and until the relator shows the existence of a clear and

unequivocal right to the relief sought is State ex rel. Robison v. Lindley-Myers, 551

S.W.3d 468, 473 (Mo. banc 2018). But Robison does not state it was changing the law or

abandoning 60 years of precedent. In fact, Robison does not even acknowledge any of

the conflicting cases decided in the decades since section 536.150 was enacted. The only

authority Robison cited for the new course it took is Furlong, which, as previously noted,

11 neither analyzes nor enforces this restriction in the context of section 536.150 and,

instead, affirms the circuit court’s grant of mandamus because “there was substantial

evidence for the trial court to find that the city’s decision to deny approval of Furlong’s

preliminary plat was unlawful, unreasonable, arbitrary, and capricious.” Furlong, 189

S.W.3d at 169 (emphasis added).

Robison is an outlier. 4 It is based on no legitimate precedent, and it has never been

followed. When this Court next reviewed a circuit court’s judgment in a suit for

mandamus seeking judicial review under section 536.150.1, this Court immediately

returned to its prior approach of not allowing common law threshold restrictions for the

writs listed in section 536.150 to frustrate the judicial review that statute plainly makes

available. See Lampley v. Mo. Comm’n on Hum. Rts., 570 S.W.3d 16, 20-21 (Mo. banc

2019).

Like in the present case, the petitioner in Lampley filed a petition for mandamus

seeking judicial review of the Missouri Commission on Human Rights’ (“MCHR”)

dismissal of his claim for lack of jurisdiction. Id. at 20. There was no discussion that

4 The court of appeals, too, failed in rare cases to follow article V, section 18’s mandate that agency decisions be subject to judicial review for whether they are “authorized by law” and refused to apply the six-factor judicial review in section 536.150. See Pub. Sch. Ret. Sys. of Sch. Dist. of Kan. City v. Mo. Comm’n on Hum. Rts., 188 S.W.3d 35, 42 (Mo. App. 2006) (providing judicial review under section 536.150 is not available in the absence of proof of a clear, unequivocal right to relief); Nat’l Council on Comp. Ins. v. Angoff, 903 S.W.2d 546, 548 (Mo. App. 1995) (same); State ex rel. Keeven v. City of Hazelwood, 585 S.W.2d 557, 559 (Mo. App. 1979) (same). In each of these cases, however, the court of appeals relied on decisions applying this common law threshold restriction outside the context of a suit for judicial review under section 536.150.1. In doing so, these cases failed to follow this Court’s decisions granting relief under section 536.150.1 when an agency decision “is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion.” 12 judicial review under section 536.150 was contingent on the common law threshold

restriction that the petition had to show a clear and unequivocal right to the relief sought

– at least not in the principal or concurring opinion. The only place that restriction

appears is in the dissenting opinion. A majority of this Court in Lampley rejected the

dissenting opinion’s position and held, instead, that “section 536.150 governs the

standard of judicial review of noncontested cases.” Id. This Court further explained:

The circuit court does not review the record for competent and substantial evidence, but instead conducts a de novo review in which it hears evidence on the merits, makes a record, determines the facts and decides whether the agency’s decision is unconstitutional, unlawful, unreasonable, arbitrary, capricious or otherwise involves an abuse of discretion.

Id. at 21 (emphasis added) (quoting City of Valley Park v. Armstrong, 273 S.W.3d 504,

508 (Mo. banc 2009)). This holding vindicated the principle that, “[n]o matter how the

judicial review is sought, … the standard governing whether the party seeking judicial

review should be given relief is that set forth in section 536.150 (i.e., ‘whether such

decision … is unconstitutional, unlawful, unreasonable, arbitrary or capricious or

involves an abuse of discretion’), not the standard governing petitions for writs of

mandamus generally.” Id. at 27 n.2 (Wilson, J., concurring) (alteration in original).

The dissenting opinion in Lampley vehemently disagreed with the Court and the

concurring opinion on this point, claiming “[n]othing in § 536.150 purports to change the

substantive nature of mandamus; it merely provides mandamus is one of several options

to obtain noncontested case review.” Id. at 38 n.8 (Powell, J., dissenting). But those

arguments failed. Id. at 37-40. The principal opinion refused to import judicial

restrictions on the writ of mandamus developed in other contexts to deprive Lampley of

13 the judicial review guaranteed by the constitution and expressly provided for in section

536.150. Had it done so, Lampley would not have been granted relief and the dissenting

opinion would not have been necessary.

Rather than follow Lampley and all the prior cases that placed substance over

form, the principal opinion in this case now attempts to rewrite history by suggesting this

Court in Lampley actually did apply (sub silentio) the traditional mandamus standards

that the dissenting opinion there berated the Court for not applying. The principal

opinion here appears to conclude that this Court in Lampley found the employee had a

“clearly established” right to invoke the Missouri Human Rights Act (“MHRA”) even

though the right was no more clearly established there than it is here. 5 Of course, this

Court in Lampley did not specifically reference mandamus standards (other than

procedural rules regarding issuance of a preliminary writ) or conduct any detailed

analysis under ordinary mandamus principles. Nevertheless, the principal opinion in this

case suggests this Court in Lampley silently concluded the employee had a clearly

established right to proceed under the MHRA in that case. That is a tough case to make.

First, the principal opinion in this case is forced to concede that this “clearly

established” right in Lampley was not found in the statute because “the right recognized –

5 As addressed in section II, infra, Swoboda did show a clear and unequivocal right to have the MCHR “promptly investigate” his charge, even though he did not have to do so. That right is found in section 213.075.3, and the MCHR’s clear and unequivocal duty to issue a “right to sue letter” if requested once 180 days have passed is found in section 213.111. That the MCHR ignored the plain language of the statute in dismissing Swoboda’s charge does not render his petition for judicial review inadequate. Instead, it renders the MCHR’s decision one that was not “authorized by law” and subject to judicial review and correction under both article V, section 18 and section 536.150. 14 the ability to advance a discrimination claim based on sex stereotyping – was not

explicitly discussed by the statute at issue in Lampley.” Slip op. at 17 n.12. And, it is

forced to concede Lampley’s “clearly established” right was not found in this Court’s

precedents because, at the time Lampley was decided, no prior Missouri court decision

had taken the “opportunity to address a sex discrimination claim based upon sexual

stereotyping until now.” Lampley, 570 S.W.3d at 25. Instead, the principal opinion in

this case suggests this Court based its holding in Lampley that the employee had a

“clearly established” right to proceed under the MHRA – never mentioned let alone

discussed in that opinion – on guidance from “federal caselaw and state regulations[.]”

Slip. op. at 17 n.12. This is not credible. Had this Court in Lampley felt it needed to

determine whether the employee had a clearly established right to proceed under the

MHRA – which the vigorous dissenting opinion in that case plainly shows was not at

issue – this Court certainly would not and could not have found this “clearly established”

right in federal cases construing a different statute or state regulations that cannot enlarge

or restrict the scope of a state law. Instead, it referred to those sources in the course of

construing the statute to determine if the administrative decision was correct, as section

536.150 requires, not as part of any analysis determining whether some threshold

restriction relating to writs of mandamus that applies in contexts other than under section

536.150.

In this case, Swoboda reasonably sought the judicial review set forth in section

536.150 by filing a petition for writ of mandamus, one of the mechanisms for triggering

that review set out in that statute. He did so based on what this Court said in Lampley.

15 The principal opinion refuses to grant Swoboda the judicial review to which he is entitled

because he failed to satisfy the threshold test for writs of mandamus, i.e., that he has a

“clearly established” right to the relief he seeks. 6 In effect, this punishes Swoboda for

following what Lampley said based solely on a revisionist characterization of what the

principal opinion now claims Lampley meant but plainly did not say. 7 Not only is this

grotesquely unfair, it is a dereliction of this Court’s duty to ensure the availability of the

independent judicial review of administrative decisions set forth in section 536.150 and

guaranteed in article V, section 18 of the Missouri Constitution.

6 The Court is so determined not to grant Swoboda the judicial review to which he is entitled under article V, section 18 and section 536.150, it overlooks clear precedent that would have rectified whatever shortcomings the principal opinion believes Swoboda’s pleadings have. Because the principal opinion concludes Swoboda cannot seek judicial review under the six standards set out in section 536.150 because he initiated this case with a petition for writ of mandamus and cannot meet the threshold mandamus test by showing a “clearly established” right to relief, there is ample precedent for this Court to treat his petition for writ of mandamus as a petition for writ of prohibition. See, e.g., State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994) (holding “[i]t is within this Court’s discretion to treat relator’s petition for writ of mandamus as one for a writ of prohibition”); see also State ex rel. Beutler, Inc. v. Midkiff, 621 S.W.3d 491, 493 (Mo. banc 2021) (same); State ex rel. Haley v. Groose, 873 S.W.2d 221, 223 (Mo. banc 1994) (treating a petition for writ of habeas corpus as a petition for writ of mandamus). Prohibition has no “clearly established” threshold test, so one would assume that – had Swoboda titled his petition seeking judicial review under section 536.150, or had the principal opinion simply been willing to treat his petition as one for prohibition – he would have sailed cleanly through to a discussion of whether the MCHR’s decision violated one of the six standards of judicial review set out in section 536.150. 7 And there is no reason to expect that this is the end of the barriers courts will erect to preclude review under section 536.150. Outside the context of section 536.150, none of the extraordinary writs named in that statute will issue if there is an adequate legal remedy. If we are to blindly apply these traditional restrictions as the principal opinion does in this case, then the fact that section 536.150 itself is an “adequate legal remedy” will preclude issuing any of the named writs. See Schneider, 575 S.W.2d at 908 (stating “the remedy by [section] 536.150 of the Administrative Procedure and Review Act precludes access to common law certiorari which does not issue in the presence of other adequate remedy”) (internal citation omitted). What then are aggrieved parties to do?

16 The plain text of article V, section 18, the plain text of section 536.150, and the

historical understanding of both evidenced by this Court are clear. The right to judicial

review of administrative decisions in “noncontested cases” that is guaranteed by the

constitution and enshrined in section 536.150 does not – and cannot – turn on various

common law restrictions (created in other contexts) pertaining to the writs named in that

statute. No matter what the aggrieved party calls the pleading, so long as that pleading

invokes section 536.150, the party is entitled to the judicial review the constitution

guarantees and that statute ensures. 8

Swoboda filed a petition for mandamus in the circuit court under section

536.150.1, seeking judicial review of the MCHR’s decision dismissing his claim for lack

of jurisdiction. He asserts this administrative decision was “unconstitutional, unlawful,

8 When the stakes are this high, and the legislative intent so clear, Missouri courts have long recognized the label given to any petition seeking review under section 536.150 cannot – and should not – be given dispositive effect. See, e.g., Hagely v. Bd. of Educ. of Webster Groves Sch. Dist., 841 S.W.2d 663, 670 (Mo. banc 1992) (forgiving petitioner’s failure to explicitly characterize his petition as one of the actions allowed under section 536.150 because “[j]ust what label is attached to the petition for review cannot be considered of any real significance”); Morrell v. Harris, 418 S.W.2d 20, 22 (Mo. 1967) (stating, “of course, misconceiving the precisely applicable remedy should not be fatal”); Phipps v. Sch. Dist. of Kan. City, 588 S.W.2d 128, 133-34 (Mo. App. 1979) (characterizing the argument that petitioner did not properly choose one of the available remedies under section 536.150 as “hypertechnical” when the petitioner was clear he sought review under section 536.150). By failing to follow these cases, the principal opinion consigns aggrieved parties to a no-win guessing game as to what arcane form of pleading will trigger the review section 536.150 was meant to ensure. In reaching this unfortunate conclusion, the principal opinion somehow concludes section 536.150 provides the same degree of judicial review – no more and no less – than if the people had never approved article V, section 18, and the General Assembly had never enacted that statute. Missing from its analysis is any sense that the people meant the constitutional change to have an impact and the General Assembly meant not only to protect the right newly preserved in the constitution but also to extend that right of judicial review even further. See Leggett, 318 S.W.2d at 358 (explaining that judicial review under section 536.150 “is broader in scope than that required by the constitutional provision … for cases in which a hearing is required by law in the agency, being in effect a hearing de novo”). 17 unreasonable, arbitrary, capricious and/or involved an abuse of discretion” because it

allegedly “contravenes Missouri law and the MCHR’s custom, conduct, practices and/or

procedures,” and requesting that the circuit court order the MCHR to rescind its decision

to dismiss his charge, accept it, and promptly investigate it. Because Swoboda properly

invoked judicial review under section 536.150.1, he is entitled to all the review that

statute (and the constitutional guarantee it was meant to protect) provides.

II. The MCHR Had Jurisdiction over Swoboda’s Claims and He Is Entitled to Relief Because Swoboda properly invoked judicial review under section 536.150, he is

entitled to all of the review that statute (and the constitutional guarantee it was meant to

protect) provides. He claims the MCHR’s decision to dismiss his claim because it lacked

jurisdiction was not “authorized by law,” the standard expressed in article V, section 18,

and was both “unlawful” and an “abuse of discretion,” two of the six standards set out in

section 536.150. He is correct, and the circuit court was correct in granting him relief.

Employees seeking to bring suit against an employer under the MHRA must first

assert their claim before the MCHR. 9 Igoe v. Dep’t of Lab. & Indus. Relations of Mo.,

152 S.W.3d 284, 287 (Mo. banc 2005) (citing § 213.111). Section 213.075 authorizes

(and even requires) the MCHR to dismiss any such claim if, on its face, it fails to invoke

9 This procedure is sui generis. Claims are not filed with the MCHR so it can adjudicate the matter between the employee and employer (subject to judicial review) as is the case in most administrative proceedings. Instead, lodging a complaint with the MCHR is a sort of “right of first refusal” in that it gives the MCHR the right, if it believes the allegations are supported by probable cause, to rectify the complaint through informal means, § 213.075.3, or by prosecuting the claim in its own name in a proceeding before the MCHR, § 213.075.5, or, if either party requests, in a proceeding in circuit court, §213.076. These options exist only for 180 days, however, after which the MCHR must issue a right to sue letter if requested, clearing the employee’s way to bring the claim in his or her own name in circuit court. § 213.111. 18 the MCHR’s authority under the MHRA. 10 But, if the MCHR has jurisdiction, it must

“promptly investigate the complaint” to determine if probable cause exists. § 213.075.3.

This obligation to investigate promptly cannot delay the employee forever, however,

because the employee is entitled to a right to sue letter (if requested) after 180 days

whether the MCHR has concluded its investigation or not. § 213.111.

Under these applicable statutes, therefore, the MCHR’s decision to dismiss

Swoboda’s claim for lack of jurisdiction was not “authorized by law” for purposes of

article V, section 18, if Swoboda’s complaint properly invoked the MHRA and the

MCHR’s authority under that act. 11 By the same token, if Swoboda’s complaint properly

invoked the MHRA and the MCHR’s authority, the MCHR’s decision to dismiss his

claim for lack of jurisdiction was both “unlawful” and an “abuse of discretion” under

section 536.150. See Curtis v. Mo. Democratic Party, 548 S.W.3d 909, 914 (Mo. banc

2018) (holding an abuse of discretion occurs when an agency “misapplies the applicable

statutes”).

10 Section 213.075.1 states: “The commission shall make a determination as to its jurisdiction with respect to all complaints[,]” and 8 C.S.R. 60-2.025(7)(B)3 provides the executive director or a designee may, at any time prior to the setting of a public hearing, administratively close a complaint “[f]or lack of jurisdiction[.]” Jurisdiction, as relevant to administrative agencies, refers to statutory authority to take certain actions. Cass Cnty. v. Dir. of Revenue, 550 S.W.3d 70, 74 (Mo. banc 2018). This Court has implicitly recognized that, if a claim is not cognizable under the MHRA, the MCHR lacks power to investigate the claim. Cf. Lampley, 570 S.W.3d at 25-26 (holding the MHRA prohibited the conduct at issue; therefore, the MCHR had statutory authority to investigate the claims). 11 This Court reviews agency determinations of law de novo to determine whether the agency’s decision was “authorized by law.” See, e.g., Ferry v. Bd. of Educ. of Jefferson City Pub. Sch. Dist., 641 S.W.3d 203, 206 (Mo. banc 2022); Fischer v. Dir. of Revenue, 483 S.W.3d 858, 860 (Mo. banc 2016) (“In determining whether the decision is ‘authorized by law,’ the [Administrative Hearing Commission’s] construction of a revenue statute is reviewed de novo.”). 19 In February 2019, Swoboda brought a charge of discrimination against his

employer, the Kansas City Police Department (“KCPD”), and Armstrong Teasdale, LLC,

a law firm retained to represent his employer in a separate case. Swoboda alleged KCPD

retaliated against him for supporting a fellow officer who asserted a charge of

discrimination against KCPD. Swoboda also alleged Armstrong Teasdale aided and

abetted KCPD’s retaliation by telling Swoboda to think about his career before he

testified at the deposition.

In March 2019, the MCHR dismissed Swoboda’s claim against Armstrong

Teasdale on the basis that it lacked jurisdiction because Swoboda did not allege he had an

employer-employee relationship with Armstrong Teasdale. In August 2019 – more than

180 days after Swoboda filed his charge of discrimination – Swoboda requested a right-

to-sue letter for his complaint against KCPD, which was his only remaining charge of

discrimination. The MCHR issued a right-to-sue letter in regard to his charge against

KCPD. Accordingly, the only issue presented for judicial review under the constitution

or section 536.150 is whether the MHRA requires Swoboda to have an employer-

employee relationship with Armstrong Teasdale to have a cognizable MHRA claim

against the firm. If it does, the MCHR properly dismissed the claim. If it does not, the

administrative decision was “unlawful” and an “abuse of discretion” under section

536.150, and Swoboda is entitled to relief.

Section 213.070.1[ 12] provides, in pertinent part:

12 All references to 213.070 are to RSMo Supp. 2018. 20 1. It shall be an unlawful discriminatory practice for an employer, employment agency, labor organization, or place of public accommodation: (1) To aid, abet, incite, compel, or coerce the commission of acts prohibited under this chapter or to attempt to do so; (2) To retaliate or discriminate in any manner against any other person because such person has opposed any practice prohibited by this chapter or because such person has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter[.]

Section 213.010(8) defines an “employer” as “a person engaged in an industry affecting

commerce who has six or more employees for each working day in each of twenty or

more calendar weeks in the current or preceding calendar year[.]”

Armstrong Teasdale concedes it is an employer as defined in section 213.010(8).

That should end this case in Swoboda’s favor because the MHRA requires nothing more.

But the MCHR and Armstrong Teasdale argue that section 213.070.1 applies only to

employers who have an employment relationship with the employee asserting the claim.

That may be a reasonable limitation and sound public policy, but it is an absolute gutter

ball in terms of statutory construction. There is not one word or phrase in section

213.070.1 or elsewhere that imposes (or even suggests) this limitation. Instead, section

213.070.1 states that it is unlawful for “an employer … to aid, abet, incite, compel, or

coerce the commission of acts prohibited under this chapter or to attempt to do so,” and

Armstrong Teasdale concedes it is an “employer” as that term is defined in the MHRA.

Nothing in section 213.070.1 or the definition of “employer” requires the employer to be

“the employee’s employer.” Essentially, the MCHR and Armstrong Teasdale ask this

Court to add language to section 213.070.1 to reach what they claim the legislature

intended or should have intended. This Court, however, ascertains the intent of the

21 legislature from the language actually used in the statute and will not add language under

the guise of construction. Treasurer of Mo. v. Parker, 622 S.W.3d 178, 181 (Mo. banc

2021).

Resorting to arguments outside the plain language of the statutes is improper

when, as here, the text plainly refutes the MCHR’s arguments and supports Swoboda’s.

Even if it were otherwise, however, the balance tips decidedly Swoboda’s way. Reading

section 213.070.1 (somehow) to apply only to employers with an employment

relationship with the claimant employee contradicts the prohibition against aiding or

abetting because an employer cannot aid or abet itself. Armstrong Teasdale and the

MCHR attempt to argue around this anomaly by focusing on the fact section 213.070.1

also allows aiding and abetting claims against an “employment agency, labor

organization, or place of public accommodation.” But that argument does not remove

“employer” from the statute with respect to aiding and abetting claims and, instead,

simply highlights that the General Assembly did not intend to require an employment

relationship to bring such claims.

Armstrong Teasdale and the MCHR also contend the 2017 amendments to the

MHRA show the General Assembly intended to limit the applicability of section 213.070

to employers with an employment relationship with the claimant. Prior to 2017, section

213.070.1, RSMo 2016, stated only that it “shall be an unlawful discriminatory practice”

to retaliate or aid and abet acts prohibited by the MHRA. Seemingly, this would permit

aiding, abetting or retaliation claims to be brought against anyone. In the 2017

amendments, section 213.070.1 was limited such that it was an “unlawful discriminatory

22 practice” only if the aiding, abetting or retaliation was by “an employer, employment

agency, labor organization, or place of public accommodation[.]” As a result, the 2017

amendments to section 213.070.1 protected entities who did not qualify as an “employer,

employment agency, labor organization, or place of public accommodation[,]” but they

did not protect entities that do qualify as one of these. Accordingly, because Armstrong

Teasdale concedes it is an “employer” as defined in the MHRA, the 2017 amendments

did not protect it and certainly do not provide any basis for reading further limitations

into section 213.070 beyond those set forth in the plain language of that statute.

The principal opinion places undue significance on the label of the pleading

Swoboda used to initiate judicial review under section 536.150. In doing so, the principal

opinion imports barriers to review that were judicially created in other contexts but are

not incorporated by the plain language of section 536.150. Instead, section 536.150

authorizes the same six-factor judicial review regardless of the name of the pleading used

to initiate that review. This conclusion is compelled by the plain language of the statute

but, even if it were not, no other conclusion is possible given the context in which section

536.150 was enacted and the constitutional mandate for judicial review of administrative

decisions found in article V, section 18. Applying the standards for judicial review set

out in section 536.150, the MCHR’s decision to dismiss Swoboda’s complaint for lack of

jurisdiction was “unlawful” and an “abuse of discretion” and the circuit court was correct

in granting Swoboda relief. Because the principal opinion refuses to give Swoboda the

23 judicial review to which he is entitled under section 536.150 and because it apparently

would not grant relief if it did, I respectfully dissent.

______________________________ Paul C. Wilson, Chief Justice