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State v. Conklin6/10/1999
On October 9, 1998, Greg Michael Grisham ("Driver") was arrested for driving while intoxicated. A "breath analysis" showed he "had a blood alcohol concentration of .108%." Consequently, the Director of Revenue ("Director") suspended Driver's motor vehicle operator's license pursuant to section 302.505.
The suspension was upheld after administrative review per section 302.530, whereupon Driver filed a two-count petition in the Circuit Court of Greene County. Count I prayed for trial de novo per section 302.535. Count II prayed the trial court to "issue a stay order abating the proposed administrative suspension of [Driver's] license privilege, pending final and full hearing of Count I."
On the day Driver's petition was filed, Respondent, an associate circuit Judge of the Circuit Court of Greene County, entered a "Stay Order" commanding Director "and his agents and representatives" to "cease and desist from proceeding with [Driver's] license suspension . . . until the Court has finally and judicially determined the issues raised by [Driver] herein." Director, as relator, promptly commenced this original proceeding in prohibition in this court, praying this court to issue a peremptory writ in prohibition compelling Respondent to "recall" the Stay Order.
This court issued a preliminary order in prohibition barring Respondent from enforcing the Stay Order until further directive from this court. Respondent thereafter filed an answer to Director's petition, and the parties subsequently filed briefs.
Director maintains Respondent lacked authority to enter the Stay Order by reason of subsection 2 of section 302.535, the first sentence of which reads:
"The filing of a petition for trial de novo shall not result in a stay of the suspension or revocation order."
The above-quoted statutory provision has remained unchanged since it appeared in RSMo Cum. Supp. 1984.
In State ex rel. King v. Kinder, 690 S.W.2d 408, 409 (Mo. banc 1985), the court held:
"We agree with the Director's contention that the circuit court's power to issue an order staying the revocation of [the motorist's] license was abrogated by the enactment of section 302.535(2), RSMo Cum. Supp. 1984, which states in pertinent part that ' he filing of a petition for trial de novo shall not result in a stay of the suspension or revocation order.' The language could not be more explicit."
The opinion in King continued:
"The trial de novo procedure employed by [the motorist] to obtain a rehearing on the revocation of his license is purely a statutory remedy. When a court of general jurisdiction engages in the exercise of special statutory power, such as the trial de novo set out in section 302.535.1, RSMo Cum. Supp. 1984, the court's authority is strictly confined to that provided in the statute. Randles v. Schaffner, 485 S.W.2d 1, 3 (Mo. 1972); State v. Cox, 639 S.W.2d 425, 430 (Mo.App. 1982). Here, the statute emphatically restricts the court's power to issue a stay. The circuit court must comply with the legislative directive. The [circuit court's] stay order was in excess of jurisdiction and, hence, void. Id." King, 690 S.W.2d at 409[1, 2].
Despite the holding in King, a trial court in State ex rel. Director of Revenue v. Gabbert, 925 S.W.2d 838 (Mo. banc 1996), issued an order staying Director's suspension of a motorist's operator's license in a proceeding under section 302.535. Id. at 839. Director thereupon sought a writ of prohibition barring the trial court from enforcing the stay. Id.
The motorist in Gabbert argued in the trial court that the first sentence of subsection 2 of section 3
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