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Selected Sections of Chapter Two of the MoBar Administrative Law CLE Deskbook



By: Kent L. Brown*

III. (Section 3.8) Contested verses Noncontested Cases

A. Classification - Problems and Implications

Administrative hearings fall into two broad categories - contested cases and noncontested cases.

Contested case hearings follow the procedures outlined in Sections 536.063 through 536.095 RSMo. 1994 and Supp. 1999. These hearings are full trial-type adversarial hearings on the record including:

  • An initial pleading from the agency defining the issues,
  • A limited right to discovery,
  • Subpoenas to compel attendance of witnesses,
  • A general, although not complete, adherence to the rules of evidence
  • Full attorney representation including cross-examination.

Noncontested cases can be much more informal. Any procedures satisfying the minimum requirements of procedural due process (where applicable) will suffice. Section 536.150, RSMo. 1994, is the only statute of general application governing noncontested cases, and it addresses only judicial review. Generally speaking, a noncontested case is like a trial in small claims court. Appeal is de novo, so any failure to admit evidence in the initial trial has no adverse effect on the appeal. Contested cases, however, are more like circuit court trials. Appeal is limited to the record from the agency hearing, so any failure to admit necessary evidence is fatal.

It is essential that the case be correctly classified from the outset so all parties understand whether there will be a later opportunity to offer evidence into the record and whether the rules of evidence apply. Evidentiary issues can be very misleading in administrative hearings. In noncontested cases the agency can hear or reject any evidence it desires because judicial review of the agency decision will proceed without regard to the evidence actually considered by the agency. See Section 536.150.

Contested cases are handled very differently. The rules of evidence apply, but rejected evidence must be preserved in the record at the request of the proponent. See Section 536.070(7), RSMo. 1994. The agency certainly has the power to make evidentiary rulings, but the focus is in whether the evidence is competent and probative rather than its admissibility. A contested case will almost never be reversed solely for evidentiary error but will be reversed if the evidence in total is insufficient to support the decision. For example, evidence admitted into the record can only be considered if it has probative value. See Section 536.070(8). The mere fact the agency record contains evidence supporting the decision will not save the decision from reversal if the only supporting evidence is not "competent and substantial." See Section 536.140(3), RSMo. 1994. Although far from clear, this seems to mean that an agency determination cannot be sustained on review if the only evidence in the record supporting its decision is inadmissible hearsay. Downs v. Personnel Advisory Bd. of the State of Mo., 671 S.W.2d 12, 15-16 (Mo.App. W.D. 1984); Dickenson v. Lueckenhoff, 598 S.W.2d 560 (Mo.App. W.D. 1980); Knapp v. Missouri Local Government Employees Retirement Sys., 738 S.W.2d 903, 907-08 (Mo.App. W.D. 1987); Chrysler Corp. v. Division of Employment Sec., Labor & Indus. Relations Comm'n, 628 S.W.2d 359, 360 (Mo.App. E.D. 1981); State ex rel. De Weese v. Morris, 221 S.W.2d 206, 209 (Mo. 1949) (incompetent hearsay and speculative evidence cannot be validated by statute or rule because Mo. Const. art. V, Section 22 (now art. V, Section 18) requires substantial and competent evidence to support any administrative agency decision).

Nontraditional agencies, such as cities and counties, sometimes mistakenly follow noncontested case procedure in a case which is actually a contested case. This occurs most often when the hearing requirement arises by operation of law rather than by express statutory provision. A municipality may believe no hearing is necessary because an employee may be terminated at will or a license is revocable at will. If the municipality is wrong the termination/revocation process becomes a contested case because due process requires a hearing before the protected interest can be terminated. The due process hearing requirement makes the administrative action a contested case. See, e.g., Byrd v. Board of Curators of Lincoln Univ. of Mo., 863 S.W.2d 873, 875 (Mo. banc 1993).

It is not uncommon for the correct classification of a case to turn on the correct resolution of whether the interest at issue is constitutionally protected. See, e.g., State ex rel. Yarber v. McHenry, 915 S.W.2d 325 (Mo. banc 1955). It is even possible for the classification to turn on questions of fact. For example, the United States District Court for the Western District of Missouri has held in an unpublished summary judgment ruling that the amount of credit toward tenure earned by a part time teacher, working four of seven class periods per day with no paid preparation time, was a question of fact because it could be credited as 4/7 of a year or 4/6 of a year depending on how the preparation period was handled.

The designation "contested case" versus "noncontested case" not only determines the procedure before the agency and the matter of review, it also determines the scope of review. Generally speaking, the reviewing court will be bound by the findings of fact made by the agency in a contested case, but will make its own findings of fact in reviewing noncontested cases. Compare Sections 536.100-.140 with with Section 536.150. The courts will always defer to an agency regarding matters within "the agency's" lawful discretion but only in contested cases will a court be bound by the agency's factual determinations. Agencies should be careful to follow contested case procedures whenever applicable because failure to do so may result in the loss of certain procedural advantages such as judicial deference to agency findings of fact. Webber v. Fireman's Retirement Sys., 872 S.W.2d 477, 480 (Mo. banc 1994); State ex rel. Yarber v. McHenry, 915 S.W.2d at 327.

The most far-reaching implication of correctly categorizing the type of proceeding lies in preserving the right to judicial review. See Supreme Court Rule 100 for rules governing circuit court and appellate review. Not only are the deadlines and venues for seeking review of contested verses noncontested cases different, they are mutually exclusive. There is no express statute of limitation governing judicial review of noncontested cases. See Section 536.150. Laches (governing review by injunction) and mootness (because of the extremely limited relief available) are the most common bars to noncontested case review, but theoretically, review of a noncontested case may be sought years after the challenged administrative action took place. A suit seeking review of a contested case, however, must be filed within 30 days of notice of an adverse decision. Similarly, the venue of suits seeking judicial review of noncontested cases is determined by the general venue statute (e.g., residence of defendant or site of the wrong) while venue for contested cases is controlled by Section 536.110 RSMo. 1994 (resident of plaintiff or Cole County).

It is essential that the Petition for Review in a contested case be field in the appropriate venue by the appropriate time because failure on either count deprives the court of jurisdiction. See Section 536.110. Hayward v. City of Independence, 967 S.W.2d 650, 653 (Mo.App. W.D. 1998); Alford Adver., Inc. v. Missouri Highway and Transp. Comm'n, 944 S.W.2d 245, 246 (Mo.App. W.D. 1997); State Bd. of Registration for Healing Arts v. Masters, 512 S.W.2d 150, 162 (Mo.App. W.D. 1974). If an agency decision is not appealed, it becomes final and preclusive. It may not thereafter be collaterally attacked by suit for declaratory judgment or injunction. Hayward, 967 S.W.2d at 653-54. It may even collaterally estop the parties from relitigating the factual issues in subsequent court proceedings. Bresnahan v. May Dep't Stores Co., 726 S.W.2d 327 (Mo. 1987). (Unappealed agency decision given collateral estopped effect. This decision was later statutorily reversed but only as to one specific agency). But see, e.g., Gerig v. Board of Educ. of Cent. Sch. Dist., R-III, 767 S.W.2d 586 (Mo.App. E.D. 1988). For a full discussion of the preclusive effect of agency findings see Section 3.29 of this chapter.

Because of the lack of formality and preclusive effect of a noncontested hearing, there may be a tendency to approach such proceedings as an inconsequential hoop which must be jumped through on the way to court. Caution is urged. It must be remembered that noncontested case hearings are fertile ground for admissions and statements which may very well be admissible in the circuit court trial. Consequently, going into a hearing unprepared is ill advised. In addition, contracts and internal agency rules and policies may require exhaustion before suit. This is true of highway department construction contracts. There is even one decision from the Missouri Court of Appeals requiring exhaustion of administrative remedies in a noncontested case. Muth v. Southwest Mo. State Univ., 887 S.W.2d 744 (Mo.App. S.D. 1994). The holding in this case seems out of step with the general tenor of Missouri law requiring exhaustion only in contested cases. Compare Section 536.100, RSMo. 1994, ("[a]ny person who has exhausted all administrative remedies...") with Section 536.150, which makes no mention of an exhaustion requirement. The prudent practitioner, however, will counsel his client to exhaust all internal agency remedies before seeking review in circuit court.

Accurate classification of cases in nontraditional agencies, such as local political subdivisions, is difficult but essential. As a general rule, any agency proceedings or decisions implicating any substantial private right will be a contested case because even if a statute does not expressly require a hearing, due process does. There is occasionally an attempt to classify a case by agreement between the parties, but such classification agreements are almost certainly not enforceable. Classification of a particular case is a question of law not subject to resolution by agreement of the parties. Compare Breummer v. Missouri Dep't of Labor Relations, 997 S.W.2d 112, 116-17 (Mo.App. W.D. 1999).

If it cannot be determined with confidence whether the case is contested or noncontested, a prudent practitioner will seek review within 30 days in the venue prescribed by Section 536.110. If the case is later determined to be noncontested, the suit will merely be transferred to the appropriate venue, and an amended pleading can be filed if necessary. On the other hand, if the case is filed as a noncontested case in what turns out to be the wrong venue, the mistake cannot be corrected because the trial court will not have jurisdiction to transfer the case to the appropriate venue or allow a late filing. Alford Adver., Inc., 944 S.W.2d at 246.

B. (Section 3.9) Classifying Cases - Hearing Requirement

There is no "lead" case setting out a paradigm for determining whether a particular case is contested or noncontested. There are many reported cases addressing the issue, but a particular case laying out a comprehensive method of evaluation has been elusive. Most proceedings at the state agency level are easy to classify. Personnel Advisory Board hearings, Administrative Hearing Commission hearings, and Workers' Compensation hearings are contested cases, and there is no shortage of caselaw so holding. The difficulty arises when the agency is a local political subdivision. Often, the hearing is convened only to comply with due process requirements. The question then becomes whether the due process hearing requirement is sufficient to trigger contested case requirements. See generally Byrd v. Board of Curators of Lincoln Univ. of Mo., 863 S.W.2d 873 (Mo. banc 1993); State ex rel. Yarber v. McHenry, 915 S.W.2d 325 (Mo. banc 1995).

Section 536.010(2), RSMo. 1994, defines a contested case as "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing."

The following list is provided as a guide to classification:

  • Is the administrative body an "agency"? See Section 536.010(1).
  • Is the agency seeking to impact the legal rights of a specific individual rather than the public at large? See Section 536.010(2).
  • Does the state or federal statute, rule, local ordinance, or other provision of law, including both the state and federal constitutions, require a hearing before the agency can take the proposed action? See Section 536.010(2).
  • Is the right at issue more than de minimis in the Goss v. Lopez, 419 U.S. 565 (1975), sense?
  • Has the agency at issue been exempted from contested case requirements such as schools and colleges have been?

Although the above list is not specifically supported by any particular reported case, it is consistent with the more recent pronouncements of the Supreme Court of Missouri on the issue of contested case status.

If an agency provides a hearing only as a matter of courtesy or convenience, the proceeding does not thereby become a "contested case." Public Water Supply Dist. No. 2 of Jefferson County v. State Highway Comm'n of Mo., 472 S.W.2d 347 (Mo. 1971). But even when there is no specific mention of a "hearing," it has been held that the requirement of certain procedures that constitute a "hearing" will not be sufficient to make the case "contested." Morrell v. Harris, 418 S.W.2d 20 (Mo. 1967). Use of the term "hearing" usually means contested case procedure is mandated, but the hearing required must be adversarial in nature. City of Richmond Heights v. Board of Equalization of St. Louis County, 586 S.W.2d 388 (Mo. banc 1979). There may be many "hotly contested" disputes concerning individuals' rights, duties, or privileges, but the case remains noncontested in a technical sense unless there is a hearing requirement. State ex rel. Leggett v. Jensen, 318 S.W.2d 353 (Mo. banc 1958), called into doubt on other grounds by State ex rel. Yarber v. McHenry, 915 S.W.2d 325.

The contested case "hearing" requirement has undergone extensive litigation in the past decade. Historically, in order for a case to qualify as a contested case, there had to be a statutory requirement for a hearing. In Byrd, 863 S.W.2d at 875, the Supreme Court of Missouri seized on references in existing caselaw to find the hearing requirement in the due process clause of the United States Constitution. In these cases the due process clause decides the right to a hearing and Chapter 536 prescribes the manner of the hearing.

Byrd was a terminated college professor who filed suit for breach of contract, relying on the five-year statute of limitation. The Supreme Court held that his cause of action was barred by the thirty-day appeal deadline contained in what is now Section 536.110.1, RSMo. 1994. Byrd had been a tenured professor. As such, he had a property interest in continued employment. The Fourteenth Amendment to the United States Constitution required a hearing before the University could deprive him of that property interest. Consequently, Byrd's was a contested case, and his contract claim was barred by his failure to seek review of the underlying administrative decision. A similar case is presently pending before the Eighth Circuit Court of Appeals. Krentz v. Robertson Fire Protection Dist., No. 99-4235 (8th Cir. argued June 15, 2000).

In State ex rel. Yarber v. McHenry, 915 S.W.2d 325, the Supreme Court reaffirmed the principle that the "hearing" requirement is met if procedural due process requires a hearing. The Court left open the question of what level of due process is sufficient to require contested case procedures, id. at 328, but suggested that deprivation of anything more than a de minimis property or liberty interest (such as the suspension of a high school student for ten days or less involved in Goss v. Lopez, 419 U.S. 565) mandates full contested case procedures. The Court called into serious question the continued viability of State ex rel. Leggett v. Jensen, 318 S.W.2d 353, noting that it was decided before Goss and other modern due process cases. The Court, however, stopped short of expressly reversing its holding that not every deprivation of a property or liberty interest merits full contested case procedures.

The adoption of Section 536.018, RSMo. 1994, removed institutions of higher education from the definitions of "agency" and "state agency." These schools are thus relieved of the obligation to follow contested case procedures if they have established written procedures sufficient to ensure that constitutionally required due process safeguards exist and apply to a proceeding that would otherwise constitute a contested case. The same is true of local school districts, although their exemption seems to be absolute rather than conditional. See Section 167.161.3, RSMo. Supp. 1999.

In Hagely v. Board of Education of Webster Groves School District, 841 S.W.2d 663 (Mo. banc 1992), the Supreme Court noted that, when it comes to the "hearing requirement," the hearing must be a full evidentiary proceeding and not just a meeting. The Court has since limited the applicability of Hagely. See Weber v. Firemen's Retirement Sys., 872 S.W.2d 477, 480, n. 3 (Mo. banc 1994); Yarber, 915 S.W.2d at 327-28. The failure of an agency to follow contested case procedural requirements does not render the proceeding a noncontested case. It simply means that the agency may forfeit some of the procedural advantages provided to it in the contested cases. For example, if the agency does not hold an evidentiary hearing on the record, the court may be free to conduct the evidentiary hearing itself rather than remand the matter to the agency for a hearing. The same may be true for factual findings.

The Western District Court of Appeals recently issued a decision that seems somewhat out of step with existing caselaw. In Rugg v. City of Carrollton, 990 S.W.2d 89 (Mo.App. W.D. 1999), the court held that a provision in an employee manual not formally adopted by ordinance may satisfy the hearing requirement and make an employee termination a contested case. Many prior cases have discounted the possibility that these handbooks could confer any rights. Consequently, it seems inconsistent to hold that these handbooks could satisfy the hearing requirement.

Classification of a case before an administrative agency as "contested" or "noncontested" is not left to the discretion of the agency. It is a legal issue to be determined by the court. Cade v. State, 990 S.W.2d 32, 36 (Mo.App. W.D. 1999). Cade is one of the best recent discussions of the difference between a contested and a noncontested case. It also has an excellent discussion of the difference in the standard and the method of review. Judicial review of a suspension of a merit system employee for less than five days is not a contested case because the merit system law does not require a hearing in such matters. Id. at 38-39. Although not expressly holding, one significant implication of the Cade decision is that the review of a discipline greater than a suspension of five days is on the record, created in the Personnel Advisory Board hearing, while an individual who suffers a lesser discipline may be entitled to noncontested case de novo review in the circuit court. This outcome can only be avoided if the interest at issue is deemed de minimis and therefore not worthy of constitutional protection or review under Section 536.150, RSMo. 1994.

C. (Section 3.10) Specific Examples

The following discussion of published decisions regarding what is and what is not a contested case is presented as a summary of existing caselaw. The continued viability of these cases must be evaluated in light of the holdings in Byrd v. Board of Curators of Lincoln University of Missouri, 863 S.W.2d 873 (Mo. banc 1993), State ex rel Yarber v. McHenry, 915 S.W.2d 325 (Mo. banc 1995), Cade v. State, 990 S.W.2d 32 (Mo.App. W.D. 1999), and Weber v. Firemen's Retirement System, 872 S.W.2d 477 (Mo. banc 1994), and in light of the statutory exemptions regarding schools and colleges.

When parties agree to arbitrate a matter and submit to a hearing procedure, they do not thereby create a contested case because the hearing must be "required" by law. State ex rel. Reorganized Sch. Dist. R-9 of Grundy County v. Windes, 513 S.W.2d 385 (Mo. 1974). using procedures similar to a contested case does not make a case contested if the hearing is not mandatory. Public Water Supply Dist. No. 2 of Jefferson County v. State Highway Comm'n of Mo., 472 S.W.2d 347 (Mo. 1971).

Section 36.390, RSMo. Supp. 1999, requires agencies to adopt either the appeals provisions of that chapter or substantially similar dismissal procedures. This suggests that employee discipline hearings in nonmerit state agencies are contested cases.

Most license and permit revocation and denial cases fall within the category of contested cases. E & H Enters., Inc. v. Skaggs, 607 S.W.2d 215 (Mo.App. E.D. 1980).

Many zoning cases are contested cases because they require notice and a public hearing. Standard Oil Div. of Amoco Oil Co. v. City of Florissant, 607 S.W.2d 854 (Mo.App. E.D. 1980).

Proceedings before county boards of equalization are not contested cases because Section 138.100.2, RSMo. 1994, lacks a provision for notice to interested parties. City of Richmond Heights v. Board of Equalization of St. Louis County, 586 S.W.2d 388 (Mo. banc 1979). See also State ex rel. St. Francois County Sch. Dist. R-III v. Lalumondier, 518 S.W.2d 638 (Mo. 1975).

Many local governments provide for disciplinary hearings and thereby create contested cases. State ex rel City of Springfield v. Crouch, 687 S.W.2d 639 (Mo.App. S.D. 1985). Sometimes the statute or ordinance will require an appeal for certain levels of discipline, but not for other sanctions such as a censure, thereby keeping the proceeding noncontested. Vorbeck v. McNeal, 560 S.W.2d 245 (Mo.App. E.D. 1977).

The dismissal of a tenured professor was originally held a contested case in Byrd, 863 S.W.2d 873. The adoption of Section 536.018, RSMo. 1994, however, likely changes that outcome as long as the college has adopted rules providing procedural due process. At least one state college, however, has designated these actions as contested cases in its internal rules.

Even though Missouri's prevailing wages on public works law, Sections 290.210-290.340, RSMo. 1994, includes some provisions for hearings, at least two types of decisions by the Department of Labor and Industrial Relations are not "contested cases." Neither the "periodic, general determination of prevailing hourly rate of wages" nor a determination that a specific employer failed to pay the rate satisfies the hearing requirement. Therefore, these determinations are not contested cases, at least when there is no charge, notice, hearing, judgment, findings of fact or conclusions of law, or record. Essex Contracting, Inc. v. City of DeSoto, 775 S.W.2d 208, 215 (Mo.App. E.D. 1989). As a result, the contractor in Essex Contracting was not restricted to the Chapter 536, RSMo., appeal in the prevailing wage law but could proceed with an independent declaratory judgment action in circuit court. The Department of Labor's resolution of a challenge to an occupational title of work description is, however, a contested case. Bruemmer v. Missouri Dep't of Labor Relations, 977 S.W.2d 112, 117 (Mo.App. W.D. 1999).

The public hearing by the Department of Insurance required by Section 287.320, RSMo. 1986 (since repealed by S.B. 251, L. 1993, effective January 1, 1994), for setting workers' compensation rates is not a contested case because the "hearing" is not "adversarial" and notice is limited. Benton-Hecht Moving & Storage, Inc. v. Call, 782 S.W.2d 668 (Mo.App. W.D. 1989). An insurance license disciplinary action is a contested case. See Farm Bureau Town and Country Ins. Co. of Mo. v. Angoff, 909 S.W.2d 348 (Mo. banc 1995), which also has an excellent survey of exhaustion requirements.

Transferring an inmate from one institution to another within the state is not a contested case because no adversarial hearing is required. State ex rel Div. of Adult Inst., Dep't of Corrections and Human Resources v. Brackman, 737 S.W.2d 516 (Mo.App. E.D. 1987).

Other examples of proceedings that have been determined not to be contested cases are:

  • Parole hearings, State ex rel. Mitchell v. Dalton, 831 S.W.2d 942 (Mo.App. E.D. 1992)
  • A decision by the Health Facilities Review Committee that a proposed facility did not come under the certificate-of-need law, Missouri Health Care Ass'n v. Missouri Health Facilities Review Comm., 177 S.W.2d 241 (Mo.App. W.D. 1989)
  • Denial of disability retirement benefits by Kansas City Police Commission, State ex rel. Valentine v. Board of Police Comm'rs of Kansas City, 813 S.W.2d 955 (Mo.App. W.D. 1991)
  • A school board's termination of a superintendent's contract, Kish v. Chilhowee R-IV Sch. Dist., 814 S.W.2d 649 (Mo.App. W.D. 1991)

D. (Section 3.11) "Agency" Requirement

A contested case must be a proceeding before an "agency," which is defined at Section 536.010(1), RSMo. 1994, as "any administrative officer or body existing under the constitution or by law and authorized by law or the constitution to make rules or to adjudicate contested cases." This definition has been given a broad interpretation by the courts, and it includes municipalities when they act "administratively." Reynolds v. City of Independence, 693 S.W.2d 129, 130 (Mo.App. W.D. 1985). Boards of education and local police commissions are also agencies under Section 536.010(1). Brown v. Weir, 675 S.W.2d 135 (Mo.App. E.D. 1984), distinguished on other grounds, Jackson v. Board of Directors of Sch. Dist. of Kansas City, 9 S.W.3d 68 (Mo.App. W.D. 2000); Scism v. Long, 280 S.W.2d 481 (Mo.App. E.D. 1955). Counsel should note, however, that school districts are statutorily exempted under certain circumstances. See Section 167.161.3, RSMo. Supp. 1999. The agency requirement in contested cases should be contrasted with language in Section 536.150, RSMo. 1994, which allows for appeals of decisions by "any administrative officer or body" in noncontested cases.

A lengthy discussion of what constitutes an "agency" occurs in State ex rel. Missouri Ozarks Economic Opportunity Corp. v. Long, 763 S.W.2d 381 (Mo.App. S.D. 1989), which suggests that even a private, not-for-profit corporation could be an "agency" if it exercises sufficient state power. The court refused to prohibit a circuit court from hearing an appeal of a dismissed employee under Section 536.140, now RSMo. 1994. The court held that a hallmark of an agency includes "the Authority to act with the sanction of government behind it...." Long, 763 S.W.2d at 383. Community action agencies, such as the plaintiff in this case, may be authorized to receive federal funds. That was enough for the court to let the issue be tried. This case raises the possibility that whether an entity is an "agency" may be a mixed question of law and fact.

By contrast, a not-for-profit, private corporation that exercises no state power is not an "agency" under the Missouri administrative procedure act, Chapter 536, RSMo., even if a state agency looks to the corporation's professional certification requirements in order to determine whether a counselor is qualified for a state license. Dorris v. Missouri Substance Counselors' Certification Bd., Inc., 10 S.W.3d 557, 558 (Mo.App. W.D. 1999). In this case, the petitioner sought judicial review of a private not-for-profit licensing entity's decision to terminate his license. The Western District Court of Appeals determined that the mere fact that a state licensing agency listed the not-for-profit corporation's licensing process as one way to qualify for a state license did not make the not-for-profit corporation an agency as defined in Section 536.010(1).

Cases such as Byrd v. Board of Curators of Lincoln University of Missouri, 863 S.W.2d 873 (Mo. banc 1993), and Missouri Ozarks Economic Opportunity Corp., 763 S.W.2d 381, suggest that the courts define the term "agency" in the broadest possible way. If a body exercises any state enforcement power or has the power to promulgate rules or adjudicate the rights of private citizens, it will likely qualify as an agency unless specifically exempted, as in the case of schools and colleges.

When reading cases dealing with the definition of "agency," it is important to remember that similar or even identical terms can have different meanings in different contexts. For example, State ex rel. Young v. City of St. Charles, 977 S.W.2d 503 (Mo. banc 1998), holds that a personnel board created under an ordinance adopted by a home rural city does not have the discovery powers outlined in Section 536.073.1, now RSMo. Supp. 1999, and Section 536.077, RSMo. 1994. The Court was careful to note that, while the board was an "agency" as defined in Section 536.010(1), it was not an agency "created by the constitution or state statute" as required by the statutes at issue. As a consequence, while the board was an agency, it was not an agency statutorily empowered to issue subpoenas and sanction discovery. State ex rel. Young v. City of St. Charles, 977 S.W.2d at 504-05.

E. (Section 3.12) "Specific Parties" Requirement

In order for an administrative proceeding to be a contested case, it must involve specific parties as opposed to the public or sectors of the public in general. See Section 536.010(2), RSMo. 1994. When the public interest is involved (as opposed to private rights), there is no contested case. For example, in In re Roadway in Section 21, Township 60, Range 6, West, 357 S.W.2d 919 (Mo. 1962), the Supreme Court ruled that, even if a county court was assumed to be an "agency," persons contesting the vacation of a roadway did not have sufficient individual rights and interests involved in order to entitle them to a judicial review of the order in question. "Their only interest was as a user of the road. While they might have used the road more than certain other persons in the community their legal interest was, nevertheless, the same as that of the public generally." Id. at 922.

In Eureka Fire Protection District of St. Louis County v. Hoene, 623 S.W.2d 79 (Mo.App. E.D. 1981), the court ruled that the expansion of a fire protection district did not involve a determination of private rights but was based on the best interests of the district as a whole. The "specific parties" requirement in contested cases is akin to the "rights, duties or privileges of any person" language in Section 536.150, RSMo. 1994, and the two provisions have been interpreted similarly. See In re Roadway, 357 S.W.2d 919.

F. (Section 3.13) Conclusion

It is too late to decide on appeal whether a case is contested or noncontested. It is a rude awakening to learn after the hearing that judicial review is time barred or that the appeal will consist solely of a review of the existing record. In most cases, it will be fairly clear whether a proceeding is a contested or noncontested case. If there is any doubt, counsel should treat the matter as a contested case by offering all relevant evidence into the agency record and seeking review within the shortest potentially applicable time limit (e.g., thirty days in general or twenty days in workers' compensation cases). In suits for judicial review of contested cases, venue and timeliness are jurisdictional and cannot be waived or cured. State ex rel. St. Louis County v. Enright, 729 S.W.2d 537 (Mo.App. E.D. 1987). When in doubt, counsel should plead both contested and noncontested review and file under Section 536.110, RSMo. 1994. Missouri citizens have a constitutional right to judicial review of any administrative determination that adversely affects private rights. Mo. Const. art. V, Section 18. That right my be lost, however, if the statutory directives regarding how to seek that review are not adhered to strictly.

* Mr. Brown received his B.S.E. in 1982 from Southwest Missouri State University in Springfield and a J.D. in 1991 from the University of Missouri - Columbia. He is a shareholder in Carson & Coil, P.C., a 19-member firm located in Jefferson City, Missouri. For the past three years he has served as chair of the Administrative Law Committee of the Missouri Bar. ur content here