Donna L. Abmeyer, Assessor for Dunklin County, Missouri, et al., Plaintiffs/Respondents, v. State Tax Commission of Missouri, et al., Defendant/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Donna L. Abmeyer, Assessor for Dunklin County, Missouri, et al., Plaintiffs/Respondents, v. State Tax Commission of Missouri, et al., Defendant/Appellant. Case Number: 21634 Handdown Date: 10/28/1997 Appeal From: Circuit Court of Dunklin County, Hon. Stephen R. Sharp Counsel for Appellant: Douglas E. Nelson and F. Martin Dajani Counsel for Respondent: Stephen P. Sokoloff and Phillip M. Britt Opinion Summary: None Citation: Opinion Author: Robert S. Barney, Judge Opinion Vote: Parrish, P.J., dissents in separate opinion. Montgomery, C.J., concurs in separate opinion. Opinion: This is an appeal from a judgment entered by the Circuit Court of Dunklin County, Missouri.(FN1) It arises from an action brought by the Dunklin County Assessor and the Dunklin County Commissioners (Respondents) against the State Tax Commission (Appellant) to rule on the differences submitted in a two-year tax assessment maintenance plan for taxable years 1997-1998, filed with the Dunklin County Circuit Court on March 6, 1996.(FN2) See section 137.115.1, more fully explained infra.(FN3) Appellant assigns six points of trial court error. However, we decline to review these allegations of trial court error because we determine sua sponte that we have no jurisdiction to review the purported judgment of the Circuit Court of Dunklin County, Missouri. See Skalecki v. Small, et al., No. 21198, slip op. at 10, (Mo.App., September 5, 1997); Shawnee Bend Special Road Dist. v. Camden County Comm'n, 839 S.W.2d 343, 347 (Mo.App. 1992); see also Committee for Educ. Equality v. State, 878 S.W.2d 446, 450 (Mo. banc 1994).

Section 137.115 reads, in pertinent part, as follows: If the state tax commission fails to approve a[n] [assessment] plan within thirty days after the date submitted and if the state tax commission and the assessor and the governing body of the county involved are unable to resolve the differences within an additional thirty days, then the differences shall be submitted to the circuit court of the county involved for final resolution within an additional thirty days. The decision of the circuit court may be appealed pursuant to chapter 621, RSMo. section 137.115.1(emphasis added). Although it is from the plain meaning of words that the legislative intent of a statute is most immediately derived, Union Elec. Co. v. Director of Revenue, 799 S.W.2d 78, 79 (Mo. banc 1990), the foregoing statutory provision is not a model of clarity. This Court is initially concerned with the last sentence of section 137.115.1, wherein the statute recites that the "decision of the circuit court may be appealed pursuant to chapter 621, RSMo." Section 137.115.1(emphasis added). In view of the fact that chapter 621 is chiefly concerned with the establishment of and grant of powers given to the Administrative Hearing Commission, it is logical to presume that, at least facially, the plain and ordinary meaning of section 137.115.1 appears to require the Administrative Hearing Commission (AHC) to review the judgment of the Circuit Court of Dunklin County, Missouri. See section 137.115.1; Chapter 621. Although the right of appeal of a civil judgment exists solely by virtue of statute, Lederer v. Dept. of Social Servs., 825 S.W.2d 858, 861 (Mo.App. 1992)(citing Bolin v. Farmers Alliance Mut. Ins. Co., 549 S.W.2d 886, 889 (Mo. banc 1977)), nevertheless, "the review of a judgment is in the court of appeals, or where constitutionally required, in the supreme court." Id.; Mo. Const. of 1945, art. V, section 3; see section 512.010. Under the Missouri Constitution the legislature cannot vest purely judicial functions in an administrative agency. State Tax Comm'n v. Administrative Hearing Comm'n, 641 S.W.2d 69, 75 (Mo. banc 1982). The AHC, then, "is not a court, but 'an adjunct executive agency,' that exercises agency adjudicative power, a 'power [that] extends only to the ascertainment of facts and the application of existing law' to them." Lederer, 825 S.W.2d at 862(quoting State Tax Comm'n v. Administrative Hearing Comm'n, 641 S.W.2d 69, 75 (Mo. banc 1982)). It simply "performs the same role 'as an administrative hearing officer authorized to hear contested cases within an agency.'" Lederer, 825 S.W.2d at 862. It receives evidence de novo. Id. at 864. In this Court's review of section 137.115.1 we are mindful that a statute is presumed constitutional and will not be found invalid unless it clearly contradicts some constitutional provision. Id. at 863; see State v. Stone, 926 S.W.2d 895, 899 (Mo.App. 1996). "Where the text permits, the law favors a reasonable construction consistent with the evident legislative purpose of the statute and disfavors an explanation that leads to invalidity." Lederer, 825 S.W.2d at 863; see also City of Kirkwood v. Allen, 399 S.W.2d 30, 36 (Mo. banc 1966). Where permitted, a court is reluctant to declare

statutes unconstitutional and must resolve all doubts in favor of their validity. State Tax Comm'n, 641 S.W.2d at 73. Resort should be had to all parts of an act in order to arrive at the true meaning of any of the provisions thereof. Thoroughbred Ford, Inc. v. Ford Motor Co., 908 S.W.2d 719, 729 (Mo.App. 1995).(FN4) Our review of section 137.115.1 convinces us that the legislature intended that a local circuit court be tasked with the duty of facilitating the tax assessment process of the real and personal properties of a county. The plain and ordinary meaning of the statute requires that the circuit court finally resolve the differences, i.e., make a "final resolution," among the submitted assessment maintenance plans in an expeditious fashion, in keeping with the time expedient provisions of the statute.(FN5) Based on the foregoing precepts, we determine that under the statutory scheme set up by the legislature in section 137.115.1, a circuit court judge is required to act in an administrative or quasi-judicial capacity, rather than in a purely judicial capacity. Otherwise, the legislature would not have mandated that the AHC review the circuit court's "decision," since the AHC is constitutionally prohibited from reviewing a circuit court judgment. Lederer, 825 S.W.2d at

1. While the statute speaks of an "appeal," it would be "unreasonable and destructive of the purpose of the statute to

give effect" to a meaning that implies "judicial review" by the AHC. See id. at 864. Rather, "a review by the AHC of a final decision of the [circuit court judge rendering an administrative decision] is simply another level of administrative review on evidence as in a contested case under section 536.063 et seq.-- and from thence, judicial review under sections 621.145 and 536.100 to 536.140," as provided by chapter 621. See id. "Although the court may be a court of general jurisdiction, when it is engaged in the exercise of a special statutory power its jurisdiction is limited by such statutory power." Shawnee Bend Spec. Road Dist. v. Camden County Comm'n, 800 S.W.2d 452, 459 (Mo.App. 1990). "When a statute or rule provides a special method of review it is exclusive and mandatory." Lederer, 825 S.W.2d at 861; State Tax Comm'n v. Luten, 459 S.W.2d 375, 378 (Mo. banc 1970); Blydenburg v. David, 413 S.W.2d 284, 291 (Mo. banc 1967); Gothard v. Spradling, 586 S.W.2d 443, 445 (Mo.App. banc 1979). In Shawnee Bend, 800 S.W.2d at 459, this Court determined that when the entire county commission of Camden County, Missouri, was disqualified from considering a measure which had the effect of dissolving a road district under section 233.295, the circuit court was authorized under section 49.220 to "assume the role of the county commission and to proceed under sections 233.295 as if it were the county commission." Id. On remand and then subsequent appeal to this Court in Shawnee Bend, 839 S.W.2d at 347, Judge Maus observed, however, that "[a]ppeals from the decisions, findings and orders of county commissions shall be conducted under the provisions of chapter 536, RSMo." Id.(quoting

sections 49.230). Since chapter 536 "provide[d] for judicial review of an administrative decision by a petition filed in the circuit court," and the actions of the circuit judge "acting as the County Commission" constituted an administrative decision, Judge Maus concluded that there was "no right of appeal to this court from an administrative decision of a judge of a circuit court acting as a county commission." Shawnee Bend, 839 S.W.2d at 347-48(emphasis added). Similarly, since section 137.115.1 expressly provides that the "decision of the circuit court may be appealed pursuant to chapter 621, RSMo," i.e., a de novo review by the AHC, thence judicial review under sections 621.145 and 536.100 to 536.140 as provided by chapter 621, we are compelled to dismiss the instant matter for lack of jurisdiction. See Shawnee Bend, 839 S.W.2d at 347; see also Lederer, 825 S.W.2d at 864. Footnotes: FN1.Appellant initially filed its notice of appeal to the Missouri Supreme Court on the basis that the circuit court's action involved the construction of a revenue law of the State of Missouri. See Mo. Const. of 1945, art. V, sections 3. Citing Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907 (Mo. banc 1997), the Missouri Supreme Court declined to review this matter and transferred it to this Court "where jurisdiction is vested." FN2.The differences between the parties chiefly revolved around the determination of a construction cost index. According to Respondents, a local construction cost index, also known as a cost-index ratio, is a number by which an appraisal system manual cost must be multiplied to yield an actual cost of construction in the locality. Appellant contends that the result of an insufficient construction cost index is that new property is assessed and subsequently taxed at a level less than older construction in the county. Respondents sought approval for a construction cost index of 1.54, whereas Appellant maintained that the construction cost index should have been 1.70. The circuit court determined that the construction cost index was 1.56. FN3.All statutory references are to RSMo 1994, unless otherwise specified. FN4.It should be noted, of course, that a court of appeals does not have jurisdiction of a case involving the constituional validity of a statute. State v. Stone, 926 S.W.2d 895, 898, (Mo. App. 1996). "[A]n appellant's assertion of a constitutional issue deprives this court of jurisdiction, however, only if the constitutional issue is real and substantial rather than merely colorable." Id. FN5.On or before January 1 of each even-numbered year, the assessor is required to prepare a two-year assessment maintenance plan. It is submitted to the county governing body and the state tax commission for their respective approval or modification. By no later than February 1, the county governing body is required to either approve the plan or forward an alternative plan to the state tax commission; otherwise, the plan stands approved by the county governing board. As previously set out, supra, if the state tax commission fails to approve the plan within 30 days and if the assessor, the county governing body and the state tax commissioner are unable to resolve their differences within an additional 30 days, the matter is then submitted to the circuit court "of the county involved for final resolution within an additional thirty days." See sections 137.115.1(emphasis added). Note the contrast with the usual rules of civil procedure found in Rules 55-74, Missouri Court Rules (1997). Separate Opinion: Disssenting Opinion by John E. Parrish, Presiding Judge:

appeal. Section 137.115.1(FN1) requires county assessors to submit two-year assessment maintenance plans to their county commission for approval or modification. After a county commission acts on a proposed assessment maintenance plan, the plan as approved or modified is submitted to the state tax commission for its approval. The state tax commission has thirty days to approve the plan submitted to it. If it does not do so "and if the state tax commission and the assessor and the governing body of the county involved are unable to resolve the differences within an additional thirty days, then the differences shall be submitted to the circuit court of the county involved for final resolution within an additional thirty days." Id. Dunklin County's plan was timely submitted to the state tax commission. The state tax commission did not approve the plan. Within thirty days thereafter there was no resolution of differences that existed between the state tax commission and the assessor and county commission. It appears to me that the opinion in this case disregards the nature of the "plan" that section 137.115.1 requires the county to submit to the state tax commission. The plan, after its approval or modification by the county commission, is a decision, finding or order of the county commission. Accordingly, any appeal of that decision "shall be conducted under the provisions of chapter 536, RSMo." Section 49.230. Section 536.063(1) provides that an appeal "shall be commenced by the filing of a writing by which the party or agency instituting the proceeding seeks such action as by law can be taken by the agency only after opportunity for hearing, or seeks a hearing for the purpose of obtaining a decision reviewable upon the record of the proceedings and evidence at such hearing, or upon such record and additional evidence, either by a court or by another agency." When the state tax commission failed to approve Dunklin County's plan, a petition was filed in circuit court seeking the relief permitted by section 137.115. Following trial of the issues presented, the circuit court entered judgment approving the plan that was submitted with some modification. It ordered the tax commission to disburse funds to Dunklin County "as if the Two-year Assessment Maintenance Plan . . . had been agreed upon within thirty days of its submission to the State Tax Commission." The state tax commission filed this appeal. Section 137.115.1 states, "The decision of the circuit court may be appealed pursuant to chapter 621, RSMo." Section 621.145 provides, "Except as otherwise provided by law, all final decisions of the administrative hearing commission shall be subject to judicial review as provided in and subject to the provisions of sections 536.100 to 536.140, RSMo, . . . . The right to judicial review as provided herein shall also be available to administrative agencies aggrieved by a final decision of the administrative hearing commission."

Section 137.115 is anything but clearly written insofar as it addresses judicial review. However, considering the need for prompt resolution of conflicts concerning county assessment maintenance plans, it appears to me that the legislative intent was to bypass the administrative hearing commission in resolving those conflicts. I interpret the reference to section 621.145 in section 137.115 to mean that the same procedure for review exists from the state tax commission's failure to approve a county assessment maintenance plan as exists for appealing a decision of the administrative hearing commission. I do not believe Shawnee Bend Spec. Road Dist. v. Camden County Comm'n, 800 S.W.2d 452 (Mo.App. 1990), has any applicability. In Shawnee Bend the circuit judge acted as the county commission. In this case he did not. This court should not dismiss the appeal. Footnote: FN1.References to statutes are to RSMo 1994. Opinion Concurring in Result by Kerry L. Montgomery, Chief Judge:

issues raised in the instant appeal. The principal opinion correctly relies on Lederer v. Dep't of Soc. Services, 825 S.W.2d 858 (Mo.App. 1992), for the rule that the right of appeal is purely statutory. However, I disagree with the premise of the principal opinion that "the plain and ordinary meaning of Section 137.115.1 appears to require the Administrative Hearing Commission (AHC) to review the judgment of the Circuit Court of Dunklin County, Missouri." Nothing in section 137.115.1 requires the AHC to review the circuit court's "decision." The statute merely directs that such decisions "may be appealed pursuant to chapter 621 RSMo." The only section in chapter 621 which deals with appeal or review is section 621.145 which provides that final decisions of the AHC are subject to judicial review under the provisions of sections 536.100 to 536.140, RSMo. I agree that section 137.115.1 is not clearly written regarding the procedure for judicial review of a decision rendered thereunder. I also agree with the dissenting judge's notion that apparently the legislature intended in section 137.115.1 to by-pass the AHC in resolving the differences between the instant parties. Based on that view, I interpret the reference in section 137.115.1 to section 621.145 to mean that the decision of the circuit court shall be reviewed in the same manner as if the AHC had rendered the decision. The review of a decision by the AHC is governed by chapter 536

which provides for judicial review of an administrative decision by a petition filed in circuit court. Appellant has omitted this step in the review process. I recognize that my interpretation results in a more cumbersome and less expedient review process than likely contemplated by the legislature. However, the solution lies with the legislature. The right to appeal is purely statutory, and I find no basis under the present statutory scheme for the instant appeal to this Court. Because nothing in section 137.115.1 or section 621.145 provides a basis for an appeal to this Court, we lack jurisdiction. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.