STATE ex rel. JIM SWOBODA v. MISSOURI COMMISSION ON HUMAN RIGHTS, ALISA WARREN, and ARMSTRONG TEASDALE, LLP
No. SC99000
SUPREME COURT OF MISSOURI
Opinion issued August 9, 2022
SUPREME COURT OF MISSOURI
en banc
STATE ex rel. JIM SWOBODA, )
)
Respondent, )
)
v. ) No. SC99000
)
MISSOURI COMMISSION ON )
HUMAN RIGHTS, )
)
Appellant, )
)
ALISA WARREN, )
)
Appellant, and )
)
ARMSTRONG TEASDALE, LLP, )
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
The Honorable Bryan E. Round,
The Missouri Commission on Human Rights and its Executive Director, Alisa
Warren, (collectively, the “Commission”), and Armstrong Teasdale, LLP (the “Law
Firm”) appeal the circuit court’s judgment issuing a permanent writ of mandamus in Jim
Swoboda’s favor. As relevant here, Swoboda filed a charge of discrimination with the
Commission against the Law Firm that was dismissed for lack of jurisdiction. After
Swoboda sought judicial review, the circuit court directed the Commission to rescind the
dismissal, accept the charge, and conduct an investigation. Because Swoboda failed to
establish he is entitled to mandamus relief, however, the circuit court’s decision was
erroneous. The judgment is reversed, and the case is remanded.
Background
Swoboda filed a charge of discrimination against his employer, the Board of
Police Commissioners of Kansas City (the “Board”), and the Law Firm in February 2019.
The charge alleged that, in 2014, while Swoboda was a sergeant with the Kansas City
Police Department, he opposed the purported discrimination against another officer and
supported that individual in a formal legal claim against the Board. When Swoboda was
deposed in the case, an attorney from the Law Firm, which represented the Board,
allegedly informed him he should think about his career as he testified. Again, before
Swoboda testified at trial, an attorney from the Law Firm again allegedly advised him to
consider how his testimony could hurt the Board. After a mistrial, the other officer’s
claim was settled.
of absence due to medication issues and stress related to involvement with the other
officer’s claim, stating he used 46 sick, vacation, and compensation days. Swoboda
contended he received medical approval to return to full duty in December 2018 but was
placed on limited duty until January 2019. He further posited that, during this period, he
was 1) assigned menial tasks; 2) denied access to his vehicle, e-mail, and key card entry
for certain facilities; 3) not allowed to wear his uniform or carry a gun; 4) restricted from
accessing computers, confidential information, and records, despite being the custodian
of records; 5) excluded from Fraternal Order of Police meetings, Commander meetings,
department training, the unit holiday party, and work groups, committees, and projects;
and 6) removed from his positions of information management unit commander and
Custodian of Records.1 He also purportedly lost his office and was assigned to work
from a storage closet. Swoboda believed all of these actions were taken against him in
retaliation for participating in the discrimination case because, once the claim was settled,
he regained access to his e-mail and restrictions on his key card entry were removed.
Yet, at the time the charge was filed, his department vehicle had not been returned.
The charge named the Board as well as the Law Firm and listed retaliation,
disability, and “[o]ther: [a]iding and [a]betting” as the types of discrimination.2 In March
2019, the Commission issued a letter regarding Swoboda’s claims against the Law Firm:
The investigation of the [] complaint has determined that the [Commission]
lacks jurisdiction over this matter because there is no employer-employee
relationship between [Swoboda] and [the Law Firm]. Therefore, [the
Commission] is administratively closing this case and terminating all []
proceedings relating to your complaint.
Swoboda filed a petition for a writ of mandamus in the circuit court, seeking to require
the Commission to vacate its dismissal and accept and investigate his claim. The circuit
court directed the Commission to respond to the petition. The Law Firm filed a motion to
intervene, which the court later sustained without objection. The Commission and the
Law Firm also filed motions to dismiss, alleging Swoboda failed to state a claim upon
which relief could be granted. The circuit court entered an order, judgment, and
permanent writ of mandamus, finding the Commission erroneously dismissed Swoboda’s
charge without issuing a right-to-sue letter and directing the Commission to rescind its
dismissal, accept the charge, and conduct an investigation.3 The Commission and the
Law Firm appeal.4
Standard of Review
If a circuit court, pursuant to
agency’s decision, this Court reviews the ruling like any other court-tried case. Furlong
Cos., Inc. v. City of Kan. City, 189 S.W.3d 157, 168 (Mo. banc 2006). The judgment will
be affirmed unless it is not supported by substantial evidence, is against the weight of the
evidence, erroneously declares the law, or erroneously applies the law. Id. Questions of
law, including matters of statutory interpretation, are reviewed de novo. State ex rel.
Tivol Plaza, Inc. v. Mo. Comm’n on Hum. Rts., 527 S.W.3d 837, 841 (Mo. banc 2017)
(expressing the rule in the context of reviewing the denial of a writ of mandamus).
Analysis
The Commission and the Law Firm, for distinct reasons, contend the circuit
court erred in entering judgment in Swoboda’s favor and issuing a
any manner against any other person” language utilized in Keeney remains unchanged, compare
Mandamus proceedings may be used to enforce a clear, specific, unequivocal right that is presently existing. They cannot be utilized to adjudicate whether an individual is afforded a right but, rather, can compel performance of a right only that has already been established. Here, the ability to pursue a claim under
Conclusion
The judgment is reversed, and the case is remanded.
Mary R. Russell, Judge
DISSENTING OPINION
In Missouri, judicial review of administrative decisions is a matter of constitutional significance. This constitutional imperative to protect individuals from errant administrative decisions stands side by side with many of the most cherished and zealously defended rights recognized in
Standard of Review
In reviewing a noncontested agency decision pursuant to
I. Swoboda Properly Invoked Judicial Review Under Section 536.150 and Is Entitled to All the Review That Statute Provides
When the people of Missouri ratified a new constitution in 1945, they included a section requiring judicial review of administrative decisions, now found in article V,
All final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record. Unless otherwise provided by law, administrative decisions, findings, rules and orders subject to review under this section or which are otherwise subject to direct judicial review, shall be reviewed in such manner and by such court as the supreme court by rule shall direct and the court so designated shall, in addition to its other jurisdiction, have jurisdiction to hear and determine any such review proceeding.
Interpreting article V,
In State ex rel. Police Retirement System of City of St. Louis v. Murphy, 224 S.W.2d 68, 73 (Mo. banc 1949), a statute provided for judicial review of decisions of the board of trustees of the police retirement system “by the common law writ of certiorari, only.” Under the common law, certiorari relief is available only “to confine an inferior tribunal within jurisdictional limits.” Id. This Court, therefore, held it was not bound by that common law restriction because doing so was “repugnant” to the minimum scope of review article V,
Of course, the right to judicial review of administrative decisions does not rest on the constitution alone. The first sentence of article V,
Against the backdrop of Murphy (i.e., that common law writ restrictions cannot deprive relators of the scope of judicial review protected in article V,
When any administrative officer or body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a
license, and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is [1] unconstitutional, [2] unlawful,
[3] unreasonable, [4] arbitrary, or [5] capricious or [6] involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed.
Shortly after
It is particularly to be noted that the the [sic] intent of the bill was that the several types of action specified therein were to be made more flexible and adaptable so as to mould [sic] them to fit the needs of those aggrieved by non-contested administrative decisions by making provision for taking evidence, and thus permit the court to determine for itself the facts relevant to the question at issue – a sort of statutory certiorari, for instance.
Walsh, 315 S.W.2d at 835 (emphasis added).
Walsh looked to the language of
concludes that common law restrictions on the writs listed in
The Court again articulated this point in State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356-57 (Mo. banc 1958):
There are numerous cases, however, where agencies may act without having a hearing or making a record of evidence heard. In those cases the remedies of certiorari, mandamus, etc., are frequently inadequate, because of the inability of the court to consider the facts bearing on the merits of the agency’s decision, because no record of evidence has been made for the court to review.
This bill is designed to correct this situation. It provides for the making in court, in a certiorari proceeding, for example, of the same kind of record that would be made before the agency in a case reviewable under Section [18] of Article V of the Constitution. In other words it gives the court
creating new causes of action or new forms of relief when it enacted
power to hear evidence on the merits of the plaintiff’s case before the agency, so that it can determine in the light of the facts as they appear to the court whether the agency’s decision is proper.
Id. (emphasis added) (internal quotation marks omitted).
This idea that actions filed for the purpose of invoking judicial review under
The relators assert under a common law writ of certiorari. The writ issues to confine an inferior tribunal within the limits of a proper jurisdiction and to relieve a party from injury where there appears, as a matter of law from the record, that the inferior tribunal lacked, abused or was in excess of jurisdiction in the proceedings. State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 139 S.W.2d 958, 963 et seq. (11-18) (1940). The writ takes the record as it
comes and does not take account of the evidence
which relates to the merits only. State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473, 476(3) (banc 1912).
The Administrative Procedure and Review Act (Chapter 536),
§ 536.150 (present Rule 100.08), on the other hand, accords judicial review by original writ of certiorari of an administrative decision not subject to administrative review (noncontested cases) where the administrative decision determines the legal right, duty or privilege of any person. The function of this statutory writ, however, is not confined to questions of jurisdiction or errors on the face of the record not otherwise reached by appeal (Iba v. Mosman, 231 Mo. 474, 133 S.W. 38, 41 (banc 1910); Neaf, supra, n.2, 139 S.W.2d l.c. 963), but allows for evidence and determinations of fact towards adjudication of whether the administrative decision “in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion.” In short, [§ ] 536.150 constitutes the certiorari court with the function of an administrative tribunal in a contested case which hears evidence, makes a record and enters a decision on the facts found (State ex rel. Walmar Investment Company v. Mueller, 512 S.W.2d 180, 182(1) (Mo.App.1974)) a role extraneous to the common law writ of certiorari. State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 73(10-12) (banc 1949).
Schneider, 575 S.W.2d at 908 n.2 (emphasis added).
This simple and obvious construction of
Similarly, in Van Kirk v. Board of Police Commissioners of Kansas City, 586 S.W.2d 350, 351-52 (Mo. banc 1979), which involved a petition for a writ of mandamus seeking review of an agency decision, the Court did not cite, analyze, or apply any common law restrictions that apply to mandamus in other contexts and, instead, affirmed the circuit court’s judgment determining the agency’s discretion “was lawfully exercised.” Id. at 353. In State ex rel. Martin-Erb v. Missouri Commission on Human Rights, 77 S.W.3d 600, 608 (Mo. banc 2002), this Court held mandamus was available under
In Furlong, the circuit court granted mandamus after determining the agency decision was “unlawful, unreasonable, arbitrary, and capricious,” and this Court reviewed the circuit court’s determination under the Murphy standard.
The trial court found that the city’s decision was “unlawful, unreasonable, arbitrary, and capricious in that the [city] failed to perform its ministerial duty, given that this court finds that [Furlong] met the subdivision regulations and the preliminary plat is consistent with the zoning ordinance.” The standard of review for a bench-tried case is well-established. An appellate court must sustain the decree or judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.
Furlong, 189 S.W.3d at 168. This Court then affirmed the circuit court’s decision to grant mandamus, holding: “There was substantial evidence for the trial court to find that the city’s decision to deny approval of Furlong’s preliminary plat was unlawful, unreasonable, arbitrary, and capricious.” Id. at 169. Even though Furlong recites the common law threshold restriction of clearly existing right to a ministerial duty as a prerequisite to judicial review under
The only decision since
Robison is an outlier.4 It is based on no legitimate precedent, and it has never
Like in the present case, the petitioner in Lampley filed a petition for mandamus seeking judicial review of the Missouri Commission on Human Rights’ (“MCHR”) dismissal of his claim for lack of jurisdiction. Id. at 20. There was no discussion that
judicial review under
The circuit court does not review the record for competent and substantial evidence, but instead conducts a de novo review in which it hears evidence on the merits, makes a record, determines the facts and decides whether the agency’s decision is unconstitutional, unlawful, unreasonable, arbitrary, capricious or otherwise involves an abuse of discretion.
Id. at 21 (emphasis added) (quoting City of Valley Park v. Armstrong, 273 S.W.3d 504, 508 (Mo. banc 2009)). This holding vindicated the principle that, “[n]o matter how the judicial review is sought, … the standard governing whether the party seeking judicial review should be given relief is that set forth in
The dissenting opinion in Lampley vehemently disagreed with the Court and the concurring opinion on this point, claiming “[n]othing in
Rather than follow Lampley and all the prior cases that placed substance over form, the principal opinion in this case now attempts to rewrite history by suggesting this Court in Lampley actually did apply (sub silentio) the traditional mandamus standards that the dissenting opinion there berated the Court for not applying. The principal opinion here appears to conclude that this Court in Lampley found the employee had a “clearly established” right to
First, the principal opinion in this case is forced to concede that this “clearly established” right in Lampley was not found in the statute because “the right recognized –
the ability to advance a discrimination claim based on sex stereotyping – was not explicitly discussed by the statute at issue in Lampley.” Slip op. at 17 n.12. And, it is forced to concede Lampley’s “clearly established” right was not found in this Court’s precedents because, at the time Lampley was decided, no prior Missouri court decision had taken the “opportunity to address a sex discrimination claim based upon sexual stereotyping until now.” Lampley, 570 S.W.3d at 25. Instead, the principal opinion in this case suggests this Court based its holding in Lampley that the employee had a “clearly established” right to proceed under the MHRA – never mentioned let alone discussed in that opinion – on guidance from “federal caselaw and state regulations[.]” Slip. op. at 17 n.12. This is not credible. Had this Court in Lampley felt it needed to determine whether the employee had a clearly established right to proceed under the MHRA – which the vigorous dissenting opinion in that case plainly shows was not at issue – this Court certainly would not and could not have found this “clearly established” right in federal cases construing a different statute or state regulations that cannot enlarge or restrict the scope of a state law. Instead, it referred to those sources in the course of construing the statute to determine if the administrative decision was correct, as
In this case, Swoboda reasonably sought the judicial review set forth in
The principal opinion refuses to grant Swoboda the judicial review to which he is entitled because he failed to satisfy the threshold test for writs of mandamus, i.e., that he has a “clearly established” right to the relief he seeks.6 In
The plain text of article V,
unreasonable, arbitrary, capricious and/or involved an abuse of discretion” because it allegedly “contravenes Missouri law and the MCHR’s custom, conduct, practices and/or procedures,” and requesting that the circuit court order the MCHR to rescind its decision to dismiss his charge, accept it, and promptly investigate it. Because Swoboda properly invoked judicial review under
II. The MCHR Had Jurisdiction over Swoboda’s Claims and He Is Entitled to Relief
Because Swoboda properly invoked judicial review under
Employees seeking to bring suit against an employer under the MHRA must first assert their claim before the MCHR.9 Igoe v. Dep’t of Lab. & Indus. Relations of Mo., 152 S.W.3d 284, 287 (Mo. banc 2005) (citing
the MCHR’s authority under the MHRA.10 But, if the MCHR has jurisdiction, it must “promptly investigate the complaint” to determine if probable cause exists.
Under these applicable statutes, therefore, the MCHR’s decision to dismiss Swoboda’s claim for lack of jurisdiction was not “authorized by law” for purposes of article V,
In February 2019, Swoboda brought a charge of discrimination against his employer, the Kansas City Police Department (“KCPD”), and Armstrong Teasdale, LLC, a law firm retained to represent his employer in a separate case. Swoboda alleged KCPD retaliated against him for supporting a fellow officer who asserted a charge of discrimination against KCPD. Swoboda also alleged Armstrong Teasdale aided and abetted KCPD’s retaliation by telling Swoboda to think about his career before he testified at the deposition.
In March 2019, the MCHR dismissed Swoboda’s claim against Armstrong Teasdale on the basis that it lacked jurisdiction because Swoboda did not allege he had an employer-employee relationship with Armstrong Teasdale. In August 2019 – more than 180 days after Swoboda filed his charge of discrimination – Swoboda requested a right-to-sue letter for his complaint against KCPD, which was his only remaining charge of discrimination. The MCHR issued a right-to-sue letter in regard to his charge against KCPD. Accordingly, the only issue presented for judicial review under the constitution or
1. It shall be an unlawful discriminatory practice for an employer, employment agency, labor organization, or place of public accommodation:
(1) To aid, abet, incite, compel, or coerce the commission of acts prohibited under this chapter or to attempt to do so;
(2) To retaliate or discriminate in any manner against any other person because such person has opposed any practice prohibited by this chapter or because such person has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter[.]
Armstrong Teasdale concedes it is an employer as defined in
legislature from the language actually used in the statute and will not add language under the guise of construction. Treasurer of Mo. v. Parker, 622 S.W.3d 178, 181 (Mo. banc 2021).
Resorting to arguments outside the plain language of the statutes is improper when, as here, the text plainly refutes the MCHR’s arguments and supports Swoboda’s. Even if it were otherwise, however, the balance tips decidedly Swoboda’s way. Reading
Armstrong Teasdale and the MCHR also contend the 2017 amendments to the MHRA show the General Assembly intended to limit the applicability of
practice” only if the aiding, abetting or retaliation was by “an employer, employment agency, labor organization, or place of public accommodation[.]” As a result, the 2017 amendments to
CONCLUSION
The principal opinion places undue significance on the label of the pleading
judicial review to which he is entitled under
______________________________
Paul C. Wilson, Chief Justice
Notes
Swoboda filed a corresponding action in October 2019. At the time of this Court’s decision in Murphy, the minimum scope of review referenced above was found in article V, section 22.
appealed, the proceeding was dismissed for lack of a final, appealable judgment. The
Commission subsequently asked the circuit court to denominate its prior order as a judgment. The principal opinion argues this interpretation is incorrect because it renders the list of common law remedies superfluous. But, as Walsh explains, the General Assembly was not
Supp. 2018, unless otherwise specified. As addressed in section II, infra, Swoboda did show a clear and unequivocal right to have the MCHR “promptly investigate” his charge, even though he did not have to do so. That right is found in