STATE еx rel. MISSOURI GROWTH ASSOCIATION, et al., Relators/Respondents, v. STATE TAX COMMISSION, et al., Respondents/Appellants.
No. 81757.
Supreme Court of Missouri, En Banc.
Aug. 31, 1999.
As Modified on Denial of Rehearing Sept. 21, 1999.
STEPHEN N. LIMBAUGH, Jr., Judge.
Finally, we should note that Treasurer Ensor does not challenge distribution, by loans, from the school building revolving fund. His challenge is confined to an attack on the diversion of funds from the county to the state. Thus, we are not presented, and do not address, the question of whether loans to qualifying school districts from the school building revolving fund are consistent with the constitutional provision. This issue is raised in an amicus curiae brief and is discussed in appellant Ensor‘s brief, but the point is not properly presented in this appeal.8
For the foregoing reasons, we uphold the validity of
All concur.
James C. Owen, Katherine S. Walsh, James P. Gamble, St. Louis, for Respondents.
STEPHEN N. LIMBAUGH, Jr., Judge.
This is a mandamus action in which relators, Missouri Growth Association, et al.,1 seek to compel respondent, State Tax Commission (STC),2 to file its “final Order of Rulemaking” amending 12 CRS 30-4.010, the regulation that governs the valuation of all agricultural and horticultural land for the assessment of property taxes. Following judgment in favor of relators, the STC appeals. This Court has jurisdiction because the case involves a challenge to the validity of a part of
Under
On October 15, 1997, in an effort to comply with the requirements of
Relators then filed a multi-count petition for writ of prohibition and declaratory judgment challenging a variety of STC actions and inactions. In Count I, relators claimed that the STC should be compelled to file the proposed rule as a final rulemaking order despite the general assembly‘s rejection of the rule, and that the legislative oversight process by which the general аssembly rejected the rule was unconstitutional. After numerous delays, trial on Count I was held on April 22, 1999, and judgment was rendered in favor of relators on June 1, 1999. The trial court also determined that the judgment on Count I could properly be severed from the other counts and that there was no just reason to delay entry of a final judgment for purposes of appeal under Rule 74.01. Subsequently, the trial court denied the STC‘s motion to stay the judgment pending appeal. According to STC‘s motion to supplement the record, which was filed after oral argument before this Court and whiсh motion this Court now sustains, the STC, faced with the possibility of a contempt citation, has filed a final rulemaking order with the secretary of state as ordered by the trial court. Nonetheless, the secretary of state, siding with the STC but not a party to this lawsuit, now refuses to publish the rule though publicаtion is required under
On appeal, the STC presents 16 points relied on ranging from several alleged jurisdictional defects to the alleged invalidity of the legislative oversight process in
The law of mandamus is well settled. Mandamus is a discretionary writ, and there is no right to have the writ issued. State ex rel. Johnson v. Griffin, 945 S.W.2d 445, 446 (Mo. banc 1997) (citing State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 576 (Mo. banc 1994)). Mandamus will lie only when there is a clear, unequivocal, speсific right to be enforced. Id. The purpose of the writ is to execute, not adjudicate. Id. Mandamus is only appropriate to require the performance of a ministerial act. State ex rel. Bunker Resource v. Dierker, 955 S.W.2d 931, 933 (Mo. banc 1997); Missouri Coalition v. Joint Comm. on Admin., 948 S.W.2d 125, 131 (Mo. banc 1997). Conversely, mandamus “cannot be used to control the judgment or discretion of a public official ...” State Bd. of Health Ctr. v. County Comm‘n, 896 S.W.2d 627, 631 (Mo. banc 1995).
The propriety of mandamus in this case is foreclosed by
5. Within ninety days after the expiration of the time for filing statements in support of or in opposition to the proposed rulemaking, or within ninety days after the hearing on such proposed rulemaking if a hearing is held thereon, the state agency proposing the rule shall file with the secretary of state a final order of rulemaking either adopting the proposed rule, with or without further changes, or withdrawing the proposed rule, which order of rulemaking shall be published in the Missouri Rеgister.
Because the statute gives an agency the discretion to withdraw proposed rules or regulations within the stated time frame and affirmatively considers them withdrawn if not filed within that time frame, mandamus will not lie. Indeed, the agency‘s statutory discretion in the matter is the аntithesis of the kind of ministerial act or duty to which mandamus is properly addressed.4
Even without the benefit of the withdrawal provisions of
Relators’ response is that the failure to file a final rulemaking order within the 90-day period was not the result of a discretionary decision by the STC, but was due solely to the adoption of HCR 3, which precluded the STC from finalizing its proposed rule. The legislature should not be allowed, as relators explain, to prevent STC‘s compliance with
In conclusion, the trial court erred in ordering the STC to file its final order of rulemaking with the secretary of state because the STC cannot be compelled to adopt the specific rule in question. The STC‘s post-adjudication filing of the final order of rulemaking with the sеcretary of state, therefore, is of no effect. By this holding, however, this Court does not suggest that the STC is relieved of its statutory obligation to promulgate some other rule under
For the foregoing reasons, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
HOLSTEIN, J., concurs in separate opinion filed.
BENTON, J., concurs in opinion of HOLSTEIN, J.
HOLSTEIN, Judge, concurring.
I fully concur in the majority opinion. But even assuming some ministerial duty to issue regulations exists, mandamus is not available. Relators’ brief includes what I beliеve is a significant misunderstanding of Missouri law that was apparently relied on by the trial court. This misapprehension has to do with relators’ standing to seek mandamus.
Standing to bring mandamus has an exceedingly low threshold. But having standing in mandamus requires more than being a citizen interested in good government, as relators claim. It is fundamental to the concept of standing that the relators must have something personal at stake in the dispute, however slight, attenuated or remote it may be. Raines v. Byrd, 521 U.S. 811, 819 (1997) (holding that congressmen had no standing in mandamus to challenge a statute granting the president a line item veto on appropriations bills.). While several of our cases make note of how low the threshold is when a simple, purely ministerial function is involved, none of the cases relied on by relators holds that no threshold of interest is required. See State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. banc 1992) (holding that the presiding judge of the circuit court had sufficient standing to enforce through mandamus the ministerial responsibilities of public officials regarding the circuit court‘s budget); State ex rel. Taylor v. Wade, 360 Mo. 895, 231 S.W.2d 179, 181 (1950) (holding that the attorney general, due to both his statutory and common law duties, had sufficient standing to compel a county court to prepare and publish a mandated annual financial statement by means of mandamus); Missouri Coalition for the Environment v. Joint Committee on Administrative Rules, 948 S.W.2d 125, 132 (Mo. banc 1997) (holding that taxpayers had standing to challenge the actions of a legislative committee where funds were being expended for thе unconstitutional operation of the committee).
As each of these cases indicates, standing in mandamus belongs to anyone within the wide orb of those persons that a legal mandate was designed to benefit or persons who hold some special office implicating a duty to enforce the legal mandate. A mere curious bystander has no standing to bring mandamus unless, of course, the legal mandate in question was intended to benefit curious bystanders. For example, a statute mandating public disclosure of a county‘s financial condition and imposing a criminal penalty for noncompliance was designed to benefit the entire public, an informed public being essential to democracy. In such case, a member of the public has sufficient standing to bring mandamus. State ex rel. Taylor v. Wade, supra. The statutory mandates on adopting reassessment regulаtions were not designed to inform the general public or for the benefit of nontaxpayers.
The statutory mandates on reassessment were designed to benefit taxpayers by ensuring a reasonably fair distribution of the property tax burdens among all classes of property owners. Neither before the trial court nor here do relators make a claim to standing as taxpayers. Perhaps this is because doing so would give rise to serious questions of whether mandamus lies for a taxpayer who has legal remedies available. See State ex rel. J.C. Nichols Co. v. Boley, 853 S.W.2d 923, 924 (Mo. banc 1993).
I concludе that the sole basis upon which relators claim standing, that of concerned citizens, is insufficient. Mandamus does not lie even if there were a true ministerial duty to enforce.
Notes
1. Missouri Growth Association is a not-for-profit corporation whose members are a number of commercial real estate development businesses and certain affiliated trade organizatiоns. Relators also include St. Louis Apartment Association, which is another not-for-profit trade organization; Valcour Development Company, a real estate development business; and Senator John D. Schneider and six other individuals who are alleged to own real property in the St. Louis area.
2. The individual members of the STC, Van E. Donley, Bruce E. Davis and Douglas W. Burnett, were also named as parties-respondent.
3. With leave of Court, Missouri Farm Bureau has submitted a brief as amicus curiae.
4. As noted, part of
8. The sole point presented in this appeal is stated as follows:
“The trial court erred in entering judgment fоr the Defendant and in denying Plaintiff‘s Motion for Summary Judgment because the provision of House Bill 1265 directing that the proceeds of forfeitures go to the state school building revolving fund violates article IX, Section 7 of the Missouri Constitution in that article IX, Section 7 dictates that the proсeeds of forfeitures must go to the local County School Fund.” (App.Br. p. 10).