Nowden v. Div. of Alcohol & Tobacco Control
552 S.W.3d 114
Mo.2018Background
- Nowden, a Division of Alcohol and Tobacco Control special agent, was terminated after an internal investigation found prohibited items in his state vehicle and indicia of a financial/inspection conflict with A&D Mini Mart (receipts, utility envelopes, bookkeeper role).
- The Division's termination letter referenced internal appeal rights under Department Policy G-2 and set an appeal deadline; Nowden submitted his appeal two days late and the Division deemed it untimely.
- Nowden filed with the Administrative Hearing Commission; the Commission dismissed, finding he was not a merit employee entitled to a hearing and that internal appeal procedures existed.
- Nowden sued in circuit court under § 536.100 (seeking review as a "contested case"); he later sought to pursue § 536.150 relief but withdrew that pleading and proceeded on the § 536.100 petition.
- The circuit court granted the Division summary judgment and dismissed Nowden's § 536.100 petition with prejudice for failure to exhaust administrative remedies; the dismissal was appealed to the Missouri Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nowden's termination was a "contested case" under § 536.100 | Nowden: Policy G-2 provides appeal procedures substantially following MAPA, so he had a contested-case right and § 536.100 review | Division: Policy G-2 is discretionary and does not mandate a hearing; thus no contested-case right arises | Held: Not a contested case; Policy G-2 is discretionary and any hearing would be advisory to the director, so § 536.100 did not apply |
| Whether the circuit court had authority to review Nowden's petition as pleaded | Nowden: Circuit court could review under contested-case procedures he alleged | Division: Circuit court lacked authority because § 536.100 applies only to matters where law requires a hearing | Held: Circuit court lacked statutory authority to review under § 536.100; dismissal was proper |
| Whether an agency advisory proceeding that results in director's final unbound decision creates a contested case | Nowden: Board/hearing following Policy G-2 creates a record and findings akin to MAPA contested hearings | Division: Even if a board hears evidence, the director makes the final, unbound decision—so it's not a contested case | Held: Advisory proceedings that do not bind the decisionmaker are not contested cases (citing McCoy and Kunzie) |
| Effect of filing route on available review (§ 536.100 v. § 536.150) | Nowden: He alleged contested-case review under § 536.100 | Division: The proper route (if any) would be non-contested review or injunctive/writ relief under § 536.150 because no statutory right to a hearing existed | Held: Review under § 536.100 was improper; the court affirmed dismissal (not reaching merits under § 536.150) |
Key Cases Cited
- Mo. Prosecuting Att'ys & Cir. Att'ys Ret. Sys. v. Pemiscot Cty., 256 S.W.3d 98 (Mo. banc 2008) (standard for summary judgment)
- Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d 556 (Mo. banc 2014) (trial-court judgment may be affirmed on any record-supported basis)
- Furlong Cos., Inc. v. City of Kan. City, 189 S.W.3d 157 (Mo. banc 2006) (distinguishing contested and non-contested MAPA review)
- McCoy v. Caldwell Cty., 145 S.W.3d 427 (Mo. banc 2004) (advisory/unnamely binding agency proceedings do not create contested cases)
- Kunzie v. City of Olivette, 184 S.W.3d 570 (Mo. banc 2006) (administrative proceedings that do not bind the decisionmaker are not contested cases)
- City of Valley Park v. Armstrong, 273 S.W.3d 504 (Mo. banc 2009) (classification of contested v. non-contested is a legal question)