State ex rel. Kenneth Zellers, Acting Director, Missouri Department of Revenue, Relator v. The Honorable Brenda Stacey ( 2019 )

SUPREME COURT OF MISSOURI
en banc
STATE EX REL. KENNETH ZELLERS, ) Opinion issued October 1, 2019
ACTING DIRECTOR, MISSOURI )
DEPARTMENT OF REVENUE, )
)
Relator, )
)
v. ) No. SC97787
)
THE HONORABLE BRENDA STACEY, )
)
Respondent. )
ORIGINAL PROCEEDING IN PROHIBITION
PER CURIAM
Jefferson County 9-1-1 Dispatch filed a declaratory judgment action against the
director of the Missouri Department of Revenue1 in the Jefferson County circuit court. The
Director subsequently filed a motion to change venue to the Cole County circuit court. The
circuit court overruled the Director’s motion. The Director now seeks a writ of prohibition
ordering the circuit court to take no further action other than transferring venue to Cole
County.
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At the time this writ petition was filed, Joel Walters was the director of revenue. Kenneth
Zellers, the current acting director, subsequently was substituted as a party in these writ
proceedings.
Statement of Facts
In November 2018, Dispatch filed an action in the Jefferson County circuit court
seeking a declaration as to the meaning of subsections 5 and 6 of section 190.460 2 and to
enjoin the Director from applying section 190.460 to Dispatch. Section 190.460 pertains
to the collection and calculation of a prepaid wireless emergency service charge.
The Director moved for change of venue, alleging Cole County was the proper
venue pursuant to section 508.010.2, the general venue statute. Dispatch opposed the
motion, arguing venue was proper in Jefferson County under section 536.050, a specific
venue statute for declaratory judgment actions. Following a hearing, the circuit court
overruled the Director’s motion, finding section 536.050 applied and made venue proper
in Jefferson County.
The Director filed a petition for a writ of prohibition in the court of appeals. The
court of appeals initially issued a preliminary writ but ultimately denied the writ petition
without opinion. The Director then sought a writ of prohibition from this Court. This
Court issued a preliminary writ, which is now made permanent.
Standard of Review
This Court has the authority to issue and determine original remedial writs. Mo.
Const. art. V, § 4.1. This Court may issue a writ of prohibition:
(1) to prevent the usurpation of judicial power when the trial court lacks
authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or
abuse of discretion where the lower court lacks the power to act as intended;
or (3) where a party may suffer irreparable harm if relief is not granted.
2
References to section 190.460 are to RSMo Supp. 2018. All other statutory references
are to RSMo 2016.
2
State ex rel. Missouri Pub. Def. Comm’n v. Pratte, 298 S.W.3d 870, 880 (Mo. banc 2009).
“The relator has the burden of establishing the circuit court acted in excess of its authority.”
State ex rel. Cullen v. Harrell, 567 S.W.3d 633, 637 (Mo. banc 2019). “It is well-
established that this Court accepts the use of an extraordinary writ to correct improper
venue decisions of the circuit court before trial and judgment.” State ex rel. Kan. City S.
Ry. Co. v. Nixon, 282 S.W.3d 363, 365 (Mo. banc 2009).
Analysis
The Director asserts the preliminary writ of prohibition should be made permanent
because venue is proper only in Cole County. Venue is controlled by statute. State ex rel.
BJC Health Sys. v. Neill, 121 S.W.3d 528, 529 (Mo. banc 2003). Section 508.010.2
provides, when “there is no count alleging a tort” and “the defendant is a resident of the
state,” venue is proper “either in the county within which the defendant resides, or in the
county within which the plaintiff resides, and the defendant may be found[.]” In
interpreting section 508.010, this Court has held state executive department heads reside
“in the county where their offices are located and their principal official duties are
performed.” Edwards v. Gerstein, 237 S.W.3d 580, 583-84 (Mo. banc 2007).
This action does not involve a tort. Section 508.010.2, therefore, applies and
requires venue to be in the county within which the Director – a state executive department
head – resides. The Director’s office is in Cole County, where he performs his principal
official duties, see § 32.040 (“The board of public buildings shall provide the director of
revenue and the department of revenue with suitable quarters in the City of Jefferson.”),
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and the record reflects he was served in Cole County. Accordingly, venue is proper in Cole
County under section 508.010.2.
Dispatch does not dispute the Director resides in Cole County; rather, it contends
section 536.050.1 controls venue in this case. Section 536.050.1 provides, in pertinent
part:
The power of the courts of this state to render declaratory judgments shall
extend to declaratory judgments respecting the validity of rules, or of
threatened applications thereof, and such suits may be maintained against
agencies whether or not the plaintiff has first requested the agency to pass
upon the question presented. The venue of such suits against agencies shall,
at the option of the plaintiff, be in the circuit court of Cole County, or in the
county of the plaintiff’s residence[.]
(Emphasis added). “[S]uch suits,” as used in the venue provision of section 536.050.1,
refers back to “declaratory judgments respecting the validity of rules, or of threatened
applications thereof.” Under the statute’s plain language, therefore, venue can be invoked
under section 536.050.1 only in declaratory judgment actions involving the validity or
threatened application of an administrative rule.
Dispatch asserts this case involves a declaratory judgment action respecting the
validity or threatened application of an administrative rule because of an e-mail regarding
section 190.460 it received from one of the Director’s employees. But this Court has held:
“Without promulgation of an administrative rule, section 536.050.1 cannot support venue
to dispute the validity of a rule.” United Pharmacal Co. of Mo. Inc. v. Mo. Bd. of
Pharmacy, 159 S.W.3d 361, 366 (Mo. banc. 2005). Likewise, “[s]ection 536.050.1 cannot
provide venue in the absence of an application of a rule or on the mere allegation of such
an application.” Id. at 367. Rather, to assert section 536.050.1 as the basis for venue, the
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party must “plead and establish specific facts that a promulgated rule was the basis of the
[agency]’s action.” Id.
Dispatch has not established or pleaded that this case involves a promulgated
administrative rule. In its petition, Dispatch references only section 190.460 and its
application. Nowhere in the petition does Dispatch cite an administrative rule, challenge
the validity of an administrative rule, or allege the Director threatened application of an
administrative rule.
While Dispatch contends the e-mail is regulatory in nature, “[n]ot everything that is
written or published by an agency constitutes an administrative rule.” Id. at 365. Missouri
has clear procedures for promulgating administrative rules. See § 536.021 (setting forth
detailed requirements with which an agency must comply to promulgate a rule, including
filing notice of the proposed rule and a final order of rulemaking with the secretary of
state). The e-mail on which Dispatch relies is three paragraphs long and sets out the
department of revenue’s interpretation of section 190.460 and its interplay with two other
statutes. It does not establish any attempt by the Director to promulgate a rule. The e-mail,
therefore, falls well short of amounting to a promulgated administrative rule.
Because the e-mail does not constitute a promulgated rule, section 536.050 does not
apply and venue is improper in Jefferson County. “Prohibition lies to bar the trial court
from taking any further action, except to transfer the case to a proper venue.” State ex rel.
SSM Health Care St. Louis v. Neill, 78 S.W.3d 140, 142 (Mo. banc 2002). Accordingly,
the circuit court is prohibited from taking any further action except to transfer the
underlying action to Cole County, where venue is proper.
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Conclusion
The preliminary writ of prohibition is made permanent.
All concur.
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