Chapter 5 Appeals from Discipline

• Library: Missouri Professional Licensing (2018 Ed.)

Chapter 5

Appeals From Discipline

A. Introduction

B. Filing

C. Venue

D. Stay of Discipline

E. Scope of Judicial Review

A. Introduction

Upon the issuance of a board decision, the case is ready for any appeal to the judiciary. A person who has exhausted administrative remedies is entitled to judicial review under § 536.100, RSMo 2016. Appeals are to the circuit court, subject to review by the court of appeals and the Supreme Court.

B. Filing

A petition for review must be filed within 30 days of the delivery or mailing of the final decision. Section 536.110.1, RSMo 2016. The statutory time period is mandatory. R.B. Indus., Inc. v. Goldberg, 601 S.W.2d 5 (Mo. banc 1980). Thirty days begins running from the date of mailing, not the date of receipt; therefore, a petition for review filed 31 days after mailing was untimely. State Bd. of Registration for Healing Arts v. Draper, 280 S.W.3d 134 (Mo. App. E.D. 2009). A petition for review must outline the issues for the reviewing court and the adverse party. There are no explicit pleading requirements established by § 536.110. In Bird v. Missouri Board of Architects, Professional Engineers, Professional Land Surveyors & Landscape Architects, 259 S.W.3d 516, 520–21 (Mo. banc 2008), the Supreme Court discussed that the petition plays little or no role in the appellate court process because it is the agency decision, not the circuit court decision, that is reviewed. Therefore, it held that a petition for review that mirrored the language of § 536.140.2, now RSMo 2016, was sufficient to outline the issues for the reviewing court and the adverse party. Bird, 259 S.W.3d at 520–21. Further, if the petition does not specify precise enough issues, the circuit court can require amendment with greater particularity. Id. at 521. Review is exclusive, and the party seeking the review is responsible for filing the transcript and record. Section 621.189, RSMo 2016. The party appealing requests the agency to prepare the record, and the agency certifies the record to the court. Section 536.130, RSMo 2016.

No summons issues, but the party filing the petition for review has the statutory obligation to deliver a copy of the petition to the agency and to each party of record in the proceedings or the party’s attorney and file proof of delivery or mailing. Section 536.110.2. In the case of a professional licensing action, this means service of the petition on the board or its attorney and on the AHC (Administrative Hearing Commission) if there was a commission hearing involved in the case. Se...