WEST COUNTY CARE CENTER, INC., Appellant, v. MISSOURI HEALTH FACILITIES REVIEW COMMITTEE, Respondent, Health Services Management Corporation on Behalf of the Lakes of Big Bend Health Care Center, Valley Park, Missouri, Intervenor.
No. WD 40948.
Missouri Court of Appeals, Western District, En Banc.
June 27, 1989.
773 S.W.2d 474
William L. Webster, Atty. Gen., Jefferson City, Simon Bolivar Buckner, IV, Asst. Atty. Gen., Kansas City, for respondent.
Jerry Wayne Venters, Jefferson City, for intervenor.
SHANGLER, Judge.
Health Services Management Corporation made application to the Missouri Health Facilities Review Committee for a certificate of need for a new intermediate care facility. The law prescribes that the Review Committee act to approve or deny a certificate of need application within 130 days of the presentation of application.
After the expiration of the 130 day period, but before the date of the meeting scheduled for the consideration of the Health Services Management application, the West County Care Center, Inc., as relator, brought a petition for writ of prohibition in the Circuit Court of Cole County that challenged the jurisdiction of the Review Committee over the application and sought to restrain the agency from any further exercise of judicial authority in the matter. West County operates an intermediate care facility within the area of the site proposed by Health Services Management and asserted the interest as competitor to enable its suit in prohibition against the administrative agency. Health Services Management was allowed to intervene in the prohibition proceedings, and moved to dismiss the petition on the ground that West County lacked standing to maintain the action.
The court determined that the agency action posed no actual or threatened injury to an interest of the relator that the law protects, hence West County was without standing to prohibit the Review Committee proceedings, and dismissed the petition. The relator West County appeals from that judgment.
The relator asserts that the certificate of need statute constitutes a competitor facility a person affected by the application of another for a new service and hence invests an interest sufficient to maintain prohibition to enjoin an arrogation of jurisdiction by the administrative agency in the adjudication of that license. The relator asserts also—the role of the statute apart—that common law principles enable West County, as a competitor, access to the prohibition remedy.
Indeed, certificate of need statute
That scheme of the statute is made the more emphatic by
There is no allegation in the petition for writ of prohibition, nor any assertion in the briefs or arguments of West County, that the relator was denied the participation or protection of any interest
The relator cites and asserts the authority of State ex rel. Missouri Health Care Ass‘n v. Missouri Health Facilities Review Committee, 768 S.W.2d 559 (Mo.App.1988), a prior opinion of a panel of this court. The decision expresses the rationale that
The relator argues that the strictures of the certificate of need statute apart, principles of the common law accord West County standing for the writ of prohibition, and hence the judgment of dismissal entered by the trial judge on the petition was error. These principles [the argument goes] accord a person, a stranger to the record, standing for prohibition.
The procedure and practice of our prohibition remedy, since reformulated as statutes and rules, reflect the doctrines of the common law. State ex rel. Darst v. Wurdeman, 304 Mo. 583, 264 S.W. 402, 404 (banc 1924);
A person, stranger to the proceeding at which the writ is aimed, may indeed seek prohibition, but not a person, stranger in interest to that proceeding. The writ does not issue when its operation would not in any way affect the interest of a party who seeks it. State ex rel. Helm v. Duncan, 225 Mo.App. 393, 36 S.W.2d 679, 681[6-8] (1931). The interest may be to person or property, economic or noneconomic. State ex rel. Townsend v. Mueller, 51 S.W.2d 8, 11[4, 5] (Mo. banc 1932); State ex rel. Priest v. Calhoun, 207 Mo.App. 149, 226 S.W. 329, 332[1, 2] (1920); State ex rel. Darst v. Wurdeman, 264 S.W. at 404[4, 5]; State ex rel. Eagleton v. Hall, 389 S.W.2d at 802[9]. The interest that will sustain prohibition either by a stranger or nonstranger to the proceeding at which the writ is aimed is alike. It is “a personal stake arising from a threatened or actual injury.” State ex rel. Williams v. Mauer, 722 S.W.2d 296, 298[5] (Mo. banc 1987); State ex rel. Priest v. Calhoun, 226 S.W. at 331[1]. That is to say: it is an interest that invests the person in that position with the right to judicial relief. Harrison v. Monroe County, 716 S.W.2d 263, 266 (Mo. banc 1986); State ex rel. Williams v. Mauer, 722 S.W.2d at 298[5].
Standing, therefore, is cognate to justiciability. It is the interest of an adversary in the subject of the suit as an antecedent to the right to relief. State ex rel. Schneider v. Stewart, 575 S.W.2d 904, 909 (Mo.App.1978); Harrison v. Monroe County, 716 S.W.2d at 266. It is the indispensable basis for the exercise by a court of its constitutional power to adjudicate and give remedy. Id.; Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). An interest in a controversy is justiciable if, arguably, it falls within the compass of interests the statute, constitutional guarantee, or other source of right protects. Harrison v. Monroe County, 716 S.W.2d at 266; Ass‘n of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970).
Our decisions already determine that the only personal interest a competitor affected party has at stake in a certificate of need proceeding under
The relator argues, the role of the statute apart, that common law principles invest West County, as a competitor, with the interest to maintain the prohibition remedy to prevent an excess of jurisdiction by the administrative agency in the adjudication of the certificate of need. That argument postulates that to accord a competitor status for prohibition prevents duplicative health care facilities, advances the purpose of the certificate of need law—to hold down health care costs—and so subserves the public interest. The statute, however, already assigns the role of protector of the public interest to the Review Committee and to the attorney general, and not to any private suitor. St. Joseph‘s Hill Infirmary, Inc. v. Mandl, 682 S.W.2d at 827[7];
The relator does not identify the source of common law right which endows such an interest to a competitor. There is, however, no general principle of common law, nor of constitution, nor of statute that protects the interest of a competitor to be free of competition or invests standing for that purpose. St. Joseph‘s Hill Infirmary, Inc. v. Mandl, 682 S.W.2d at 824; Community Care Centers, Inc. v. Missouri Health Facilities Review Comm., 735 S.W.2d 13, 15 (Mo.App.1987); Schmitt v. City of Hazelwood, 487 S.W.2d 882, 888[13] (Mo.App.1972). It is the invariable principle, rather, that to motivate the judicial power the court must be presented with a case or controversy: a personal stake in immediate danger of some direct injury from the improper action. Harrison v. Monroe County, 716 S.W.2d at 266; State ex rel. Williams v. Mauer, 722 S.W.2d at 298[5]. The undifferentiated public grievance of an administrative decision irregularly reached that the relators pose does not suffice to present a controversy or to invest standing. Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206-07.
The relator argues nevertheless that the interest to bring prohibition derives, if not from the certificate of need statute or from common law principle, then from its role as taxpayer. A portion of the revenues of a facility licensed under the certificate of need law, the arguments goes, are derived from Medicare payments. These payments are dispensed by a state agency from state funds. These funds, in turn, are derived from taxes levied on the populace of the state—West County among them.
Our law establishes that a taxpayer who alleges that public funds are expended for an illegal purpose describes a private interest sufficient to maintain a declaratory judgment and injunction against the illicit action. Missourians For Separation of Church and State v. Robertson, 592 S.W.2d 825, 837[10, 11] (Mo.App.1980). The remedy the relator here asserts, however, is not declaratory judgment or injunction, but prohibition. It is an action to test the jurisdiction of the Review Committee to defer decision on an application for certificate of need beyond the 130 day limit
The Merits of the Petition for Writ of Prohibition
The relator next posits the basic principles of the prohibition remedy—the rule that time limits imposed by statute on an administrative agency are jurisdictional and cannot be enlarged—and an appellate decision that the 130 day direction of
We do not reach the right to relief under the statement of the petition for writ of prohibition the relator presents. We determine, rather, in limine and antecedent to any judgment on the merits—as did the trial court—that the relator was without interest or personal stake to maintain prohibition on the grounds alleged for remedy. State ex rel. Schneider v. Stewart, 575 S.W.2d at 909. We determine that the relator is not entitled to have the merits of the contention decided by our courts. Warth v. Seldin, 422 U.S. at 498, 95 S.Ct. at 2204-05.
A Separate Ground for Judgment
The trial court adjudicated that as a matter of law the relator West County was without standing for the prohibition remedy, dissolved the preliminary order, and entered judgment against the relator on the petition. For the reasons ascribed, we affirm that judgment and that ground of judgment. Another ground, already implicit in the judgment—that the petition does not plead a justiciable interest, and hence does not engage the court in a case or controversy—also supports the decision of the trial court. It is that the interest the petition undertakes to plead, even if otherwise sufficient for standing in a controversy, is moot and no longer justiciable.
We treat the question because standing and mootness are both aspects of justiciability, and so share that affinity. The question of standing involves whether the interest asserted suffices to engage the judicial power in a case or controversy. The question of mootness involves whether an actual case or controversy still persists. Warth v. Seldin, 422 U.S. at 499, n. 10, 95 S.Ct. at 2205; Harrison v. Monroe County, 716 S.W.2d at 266. In both cases, it is a question for notice by a court for dismissal, even on appeal. State ex rel. Schneider v. Stewart, 575 S.W.2d at 909; State ex rel. City of St. Louis v. Hay, 153 S.W.2d 837, 838 (Mo. banc 1941).
It is evident from the pleadings, and otherwise acknowledged in the argument to this court, that the intention of the Review Committee to defer final action on the Health Services application for a certificate of need until January 25, 1988, was announced on December 11, 1987, at the regular meeting of the Review Committee. It was at that very meeting also that Health Services, by formal request, acquiesced in the deferment of the administrative decision. West County, later the relator, was in attendance and so was privy to the design. The 130 days for action by the Review Committee on the application for the certificate of need were spent on December 27, 1987. Thus, there remained to West County 16 days to seek intervention by a writ of prohibition in the administrative proceedings—[the interest for standing for prohibition otherwise assumed]—before inaction by the Review Committee operated by law to constitute approval of the application.
Nevertheless, we do not dismiss the appeal by the relator West County. To do so would be not only to evade review of the recurrent and consequential question as to whether the status of competitor suffices to invest an affected person with the interest to prohibit the Review Committee from a decision on a certificate of need after 130 days, but also would be to allow our erroneous opinion in State ex rel. Missouri Health Care Ass‘n to remain uncorrected.3 State ex rel. Local No. 8-6, Oil, Chemical and Atomic Workers Int‘l. Union, AFL-CIO v. Mo., 317 S.W.2d 309, 314[2, 3] (Mo. banc 1958).
The judgment is affirmed.
KENNEDY, C.J., and TURNAGE, CLARK, MANFORD, NUGENT, LOWENSTEIN, BERREY, GAITAN, FENNER and ULRICH, JJ., concur.
GAITAN, J., concurs in separate concurring opinion filed.
GAITAN, Judge, concurring.
While I concur with the majority opinion, as the author of State ex rel. Mo. Health Care Ass‘n v. Mo. Health Facilities Review Comm., 768 S.W.2d 559 (Mo.App.1988) I must state that the facts of that case are distinguishable from those of West County. There, the Missouri Health Care Association (MHCA) raised both in the writ of prohibition and in their briefs that the continuance by the review committee beyond the statutory 130 days prevented its right to be heard pursuant to section 197.330.1(2), (3), and (6) RSMo 1986. This was not the case in West County. Additionally, MHCA acted on the 131st day or as soon as it reasonably could rather than twenty-three days later as in West County. Consequently, the mootness argument in West County is distinguishable.
Having raised the issue of the granting of the certificate of need (CON) by operation of law and without the opportunity to be heard pursuant to section 197.330.1(2),