Reed v. Labor & Industrial Relations Commission
789 S.W.2d 19
Mo.
1990
Check Treatment

*1 REED, Plaintiff-Appellant, Marjorie AND INDUSTRIAL RELA

LABOR and K-Mart

TIONS COMMISSION Defendants-Respondents.

Corporation,

No. Missouri,

Supreme

En Banc. 13, 1990.

March Rehearing Modified Denial of

As on

May Balsam, Le- Capriglione,

Dennis Nina J. Missouri, Inc., St. Eastern gal Services of Louis, plaintiff-appellant. Fredericktown, Graham, ami- Maurice B. Bar). (Mo. cus curiae Harris, Labor Industrial Ronald F. Bowers, Com’n, Sandy Chief Relations Sec., Counsel, Employment Jef- Division of defendants-respondents. City, for ferson *2 20 Jeffrey Hunt, Moellering,

John J. Ron- af- deputy’s B. Mart. The determination was Norwood, Louis, by Again way ald A. St. for K-Mart by firmed the referee. of Corp. Kalajian, letter from R.L. the decision was appealed to Labor and Rela- the Industrial Talent, Louis, M. curiae James St. amicus (“Commission”). A ma- tions Commission (Associated Missouri). Industries of jority of the in favor of Commission found Corporation K-Mart and denied Reed bene- BILLINGS, Judge. dissented, fits. One Commission member The issue case in this is whether the asserting grounds as K- one of his that Labor and Relations Industrial Commission Corporation through act an at- Mart must jurisdiction appeal has of an filed on behalf torney appealing when to the Commission. corporate employer by non-attorney of a a argued not Kalajian He that because was corporation. of The court of employee the attorney, juris- no an the Commission had appeal tainted appeals concluded the was merits. diction to hear the by corporation’s practice the unauthorized appealed denial Reed the Commission’s law, void, appeal the was and of the null benefits, the by was affirmed of which unemploy- and the Commission’s denial of appealed decision circuit court. that She further, stand; ment not benefits could dismissal, appeals’ after of and the court appeal is that the be dismissed. The cause accepted transfer the case. this Court of appeals court for retransferred to the of on decision the merits. This is the final arbiter Corporation Michigan corpo- K-Mart is a determining practice the what constitutes Marjo- doing ration business Missouri. law, 26, 247 Criger, Mo. of Hulse v. 363 employed Reed was one of K-Mart’s rie 855, 1952), (banc the Gener S.W.2d 857 dis- in the Louis area. She was stores St. this Assembly may not interfere with al Corporation filed a charged by K-Mart 574 power. Thompson, In re inherent the unemployment claim for benefits with 365, (Mo. 1978). How banc S.W.2d 367 Security Employment of Missouri Division ever, Assembly provided the General has (“Division”). hearing, a At an informal the for determined to be penalties acts found was dis- deputy Division Reed of practice unauthorized law. Section tardiness, charged the because of which RSMo, 484.010, seq. et 1986.1 not con- deputy determined was misconduct work, granted her bene- nected with its ac Corporation K-Mart asserts fits. practice law. the of tions do fall within support, they refer to 288.200.1 Kalajian, “unemployment compensa- For § R.L. RSMo, 1986, “party” to any In- allows Corporation, manager” for K-Mart tion by the Michigan, application requesting review Headquarters, Troy, file an ternational Appeals deci requesting an of an Tribunal sent a letter to the Division Commission They informal na sion. contend that the appeal Appeals to Division’s Tribunal. the reinforces following for- the review request granted a ture of Commission’s The was In ad attorney interpretation of hearing No their 288.200.1. mal before a referee. § dition, the Corporation that hearing of K- K-Mart asserts appeared at the on behalf firm, 484.010, any person, associa- able consideration of tion, RSMo 1986 reads: Section any corporation the as to secular iaw or or hereby "practice de- the The of law” is assisting in the drawing procuring of appearance or or an advocate the to be as fined and is drawing any representative capacity drawing or the for valuable consideration in a papers, a perform- pleadings affecting or the re- or documents or paper, instrument document or any capacity such in connection any act in doing ance act rights lating or the to secular prospective before proceedings pending or with representative in a a valuable consideration commissioner, record, or any referee court of tending or se- obtaining to obtain capacity, or board, body, or con- any committee commission any person, curing tending to secure for or having authority by to settle or stituted law firm, any corporation property or association or controversies. rights property whatsoever. hereby is defined 2. The “law business” advising counseling or for a valu- and is the be Austin, at filing petition In 101 S.W.2d mere act of for review does Clark v. employees lay railroad representation this Court held not rise to the level of active persons before the represent could not holding corporate employ- of the or out employ- Public Service Commission. public capable performing ee as *3 hearings, prepared appearing ees were at legal Liberty acts. See Mutual Insurance to cer- pleadings, gave filed advice as Jones, 932, and Co. v. 344 Mo. 130 S.W.2d 945 establish, and cross-examined (banc 1939); tain facts Criger, Hulse v. 247 S.W.2d at the witnesses. The Court held this was law, saying: practice unauthorized The law does not treat individuals recognizes right the of natural The law equally. The law corporations and allows in for themselves their persons to act represen an the risk that individual to bear affairs, performed although the acts own attorney may an entail. tation without others, them, performed if would by may represent themselves persons Natural A natural practice the of law. constitute which, in if done for someone situations case in court person may present his own else, practice constitute the of law. would elsewhere, li- although he is not a or Austin, 467, 101 v. 340 Mo. S.W.2d Clark lawyer. corporation A is not a censed individuals, 977, (1937). corpo 982 Unlike entity person. It is an artificial natural persons, natural rations are not Clark v. by Being entity an artificial created law. 467, 982, Austin, 340 Mo. 101 S.W.2d at appear person. in It it cannot or act are creatures of statute. Businesses but through agents in affairs must act all its operating corporate in form are entitled to matters, representatives. legal In it or certain that are denied to others. benefits act, all, through licensed must at if benefits, however, corpora In addition to added). (Emphasis attorneys_ placed certain restrictions tions also have n n n sjs n n upon in Mis them. One such restriction law, practice corporation a cannot Since may repre corporation souri is that a not agency of only through can act the and matters, legal act sent itself in but must it can persons, it follows that natural through attorneys. Liberty solely licensed only its behalf appear in court on own Jones, 130 at 955. Mut. Ins. Co. v. S.W.2d attorney. It cannot through a licensed Austin, 982, In v. 101 S.W.2d at the Clark corporation appear by an officer of the held: Court may attorney, an and not even who is not [Ojne practice in engaged is the of law attorney, complaint except by a an file he, for a consideration ... when valuable presumed; authority appear is whose capacity appears representative in a as words, ap- corporation in a cannot other proceedings pending in or an advocate persona. judgment A pear propria in court, prospective, any before commis- proceeding is void. rendered in such a committee, sioner, referee, board, body, added). (Emphasis au- by or constituted law or commission Austin, at 982-83. v. 101 S.W.2d Clark controversies, and thorized to settle 17, Tod, 349 S.W.2d at In v. there, capacity, representative in such Hoffmeister hearings attending participating be- any purpose acts for the performs act or Security Employment fore the Division of defending rights obtaining or the Compensation Division of Workers’ and the under the their clients law. advising employees other as to their range encompasses a broad This definition laws were held to be rights under certain corpo- non-attorney a of activities which practice per- law when the unauthorized may engage on employee behalf rate corporate employ- by non-attorney formed the It is the character of corporation. the ees. done, place they are not the where acts held a contract void be- The also committed, constitutes the decisive Court non-attorney, a allowed the acts fall cause the contract determining whether factor le- expert” to transact self-appointed “rate v. practice of law. within the Hoffmeister and federal (Mo. 1961). clients in state 5, gal business for Tod, 13 banc 349 S.W.2d 22 Curry presented

courts. v. 341 Dahlberg, Mo. facts thus demonstrate 742, 746-47, activity Kalajian, 110 S.W.2d 112 S.W.2d 345 the level of (banc 1937). Exchange non-attorney employee, represented Property See also Sales, Inc., Bozarth, (PESI) corporation body by a by & Jacobs v. before constituted (dismissal (Mo.App.1989) up 778 1 law to settle S.W.2d controversies. Sections 288.- 190, 288.200, RSMo, grounds corpo Respon- on non-attorney held that a 288.210 assigned officer corporation’s merely rate claims dents assert the letters were minis- acts, cannot an file and maintain action without terial which do not constitute the representation duly practice of a licensed attor of law or law business. This ney); Corporation disagrees. Employee Kalajian’s Credit Card Jackson ac- (Mo. Co., County squarely tions fall within the definition set Water S.W.2d 809 *4 (a by non-attorney Kalajian, representing K-Mart App.1985) brief filed a out above. Corporation, corporation’s corporation on behalf of a was held void advocated the discharged required corporation’s position of that was because and dismissal the Reed Brooks, misconduct, Houses, Reed had appeal); v. 641 of work and asserted Dobbs Inc. right (upholding reg unemployment no to receive benefits. (Mo.App.1982) S.W.2d 441 a prohibiting non-attorney employee ulation a submitting ap- The that the finds Court representing corporation a before the from by plication for to the Commission a review Rights Missouri on Human Commission non-attorney employee corporation’s the on allowing an represent while individual to prac- the behalf constitutes unauthorized him/herself). law. “Misconduct connected with tice of having spe- a claim, objected by K-Mart work” was characterized as The initial meaning Ka- in the of the Corporation’s personnel employee legal local cific decision Commission, Meinhardt, respondent case, by the a in this thy was decided Division also Appeals referee. Ritch v. employee Reed’s K-Mart and the Tribunal deputy favor. 791, Com’n., non-attorney employee Kala- 271 S.W.2d 793 Corporation’s Industrial Industrial jian appealed Appeals (Mo.App.1954); the the Laswell decision to 1986, Missouri, etc., 613, 17, 534 S.W.2d by letter. On November Com’n. Tribunal of Kalajian, Kalajian (Mo.App.1976). Non-attorney by a sent from 616 second letter was representative capacity in his for K-Mart Michigan headquarters, requesting the the for review Ap- Corporation, application of filed an the decision the Commission review appeared by and let- with the Commission peals Tribunal. advocating the K- ter before Commission motion, pursuant the Court’s own On legal position as to the Corporation’s Mart 81.12(e), record the ordered the Rule Court connected with meaning of “misconduct supplemental record supplemented. The letters, Kalajian his Through work.” 1987, January letter dated disclosed a rights corporation’s sought to defend the informing to the Kalajian from Commission under the law. the Corporation received them K-Mart had require the Kalajian The finds the statutes by attorney. brief filed Reed’s legal theories applicant the to assert facts the letter was explicitly stated that reversal, requires some supporting which (K-Mart Corporation’s) employer’s written legal knowledge. The degree skill and employee’s The let- response to the brief. degree recognize different also the reasons K-Mart Cor- statutes ter then set forth the knowledge required in legal skill and Appeals Tribunal was poration believed the and be- Appeals Tribunal hearings Al- of the requested a reversal. error and deputy a claim for form, a receives yond. When letter in sub- though presented in a involves unemployment benefits filed represented a brief letter stance this fact, depu- or the complex question of law non-attorney for K-Mart employee by a making a and with the decision ty, for without application A of the Corporation. copy claim approval, may refer the concerning the same director’s letters review and the a for hear- directly Appeals to the Tribunal opin- to this by Kalajian are attached sent RSMo, ing. 228.070.2 Section appendix. an ion as

23 argue this 20-4(8). Respondents require the finds the statutes C.S.R. The Court at the regulation only applies section of the legal theories applicant to assert facts point are cor- hearing phase. Only at that reversal, requires some supporting distinguished from other busi- porations knowledge. The degree legal skill and repre- may in terms of who degree ness entities recognize also the different statutes applications By allowing other sent them. knowledge required in legal skill and non-attorneys in by corporate to be filed Appeals and be- hearings of the Tribunal cases, argue the Com- respondents for other deputy receives a claim yond. When interpreted the statute has a mission unemployment benefits that involves Corpora- as K-Mart fact, regulation the same depu- complex question of law or tion. making a decision and with ty, without claim approval, may refer the director’s regulation as reads the The Court a hear- Appeals for directly to the Tribunal that a cor recognized law consistent with RSMo, The ing. 288.070.2 Section except through an may appear poration filing application Court finds that regula legal proceedings. attorney constitutes as- to the Commission review part individuals and recognizes that tion legal rights. It is axiomatic sertions but, may appear for themselves nerships *5 through an corporation a must act that entity, corpo they are an artificial because legal in all matters. v. attorney Clark represented must be rations or associations 982;

Austin, Property at Exch. 101 S.W.2d Austin, 101 attorney. v. by an Clark 3; Bozarth, at 778 S.W.2d & Sales v. However the Commission S.W.2d at 982. Houses, Brooks, S.W.2d Inc. v. 641 Dobbs regu or may interpreted the statutes have at 443. now holds past, in the the Court lation employ non-attorney corporate allowing a plain mean- Respondents argue that the with the application for review ee to file an in ing “party” word 288.200.1 of the § practice of is the unauthorized Commission “any party” and should be enforced means in cor right to conduct business law. The language agen- in the They such. cite as obligations to porate form also includes (1988), as cy’s regulation, 8 C.S.R. 20-4 manner. do so in a lawful regulation any “inter- support. The allows application for re- party” to file an ested may have become Corporations An interested view to the Commission. through an duty in to act complacent their claimant, any other as a party is defined Commission, attorney in matters before timely employing filing unit a person or in laxness part in to the Commission’s due 288.070.1,any person, em- protest under § those duty. Compromising enforcing this legal employing having unit a ployer or the Commis applications pending now with under any in determination made interest relied on the sion, corporations have where any under and assessment 288.130 § ineq be guidance, would for Commission Employment 288.160, of or the Division § Therefore, the unjust. and uitable 20-4(3). regulation Security. 8 C.S.R. corporate any filings by will not disturb also states: currently pending are non-attorneys which may appear for individual Any is consistent This the Commission. before Any part- any hearing. effects him/herself when a decision prior practice with any its mem- may appear by nership or substantive unanticipated procedural Benda, or as- corporation a 661 An officer of changes. bers. See Gustafson 1983). duly (Mo. authorized As to new any or other sociation 11 banc S.W.2d review, appli- corporate hearing on an for may filings applications attend a person through li by associ- corporation or act and employers which the must cation to proceed may attorneys a in all party and be interested censed Missouri ation is an Any such may hearing. Any party ings the Commission. in the before witness of a on behalf by lay person a by attorney-at-law filings an represented be un be considered employer will attorney may corporate not an one who is no The Com null and void. timely filed and capacity. representative appear in a insure the mission, duty its part as added). (Emphasis ROBERTSON, BLACKMAR, C.J., violated, reject should law is not further review attempted filings applications COVINGTON, JJ., concur. HIGGINS and non-lawyers. corporations by on behalf of HOLSTEIN, J., and concurs concurs application for review Inasmuch as the separate opinion filed. prevail- filed in accordance with then was ing practices, rejected by the Com- RENDLEN, J., and concurs concurs mission, retransfer this appropriate it is concurring opinion of separate appeals for considera- case to the court HOLSTEIN, J. appeal. of the merits of the tion *10 and Industrial Relations Labor made before a ref- Commission relied was HOLSTEIN, Judge, concurring. appeals The reason eree of tribunal. fully majority opinion. I in the concur appearing prohibiting non-lawyers from However, I some additional com- believe for other legal proceedings as advocates including necessary. upon persons protect public, record ments are is *11 corporations corporate shareholders, untrained, incompetence

from the unli- practitioners.

censed The record made be-

fore the referee the appeals tribunal is example potential dangers

a stark of the prohibition

ignoring against the non-law-

yers practicing law. attorney present

No was for K-Mart at hearing. only “representa-

the K-Mart’s hearing

tives” at two non-lawyer that were employees, Kathy

K-Mart Meinhardt and

Dan Johnson. Under these difficult cir-

cumstances, the referee undertook direct

examination of Ms. Meinhardt and Mr. The Ms.

Johnson. referee cross-examined Although apparently

Reed. Ms. Meinhardt important posses-

had some exhibits her

sion, she did bother to offer those into

the record as evidence. said, it apparent From has been is what had Ms. Meinhardt or Mr. Johnson resources, there own

been left to their support to no record the have been

would only determination.

Commission’s for the was

way the record was created position neutrali- his

referee to abandon for K-Mart an advocate

ty become Clearly the proceeding.1

that adversarial party. duty no to assist either

referee had in K-Mart’s not intervened

Had the referee ultimately

behalf, its share- K-Mart at the hands have suffered

holders would That representatives. non-attorney

of its against prohibition precisely what

is legal proceed-

non-lawyer representation designed prevent.

ings was al., LAIR,

Stephen Appellants, et M.

AMERICAN FAMILY MUTUAL COMPANY,

INSURANCE

Respondent.

No. 72134. Missouri,

Supreme

En Banc.

May hearings giving the these without at evidence scope this discussion beyond It is preju reality, of bias and appearance, if not the under circumstances extent and address presenting dice. may participate in referee