STATE EX REL. KENNETH ZELLERS, ACTING DIRECTOR, MISSOURI DEPARTMENT OF REVENUE, Relator,
THE HONORABLE BRENDA STACEY, Respondent.
ORIGINAL PROCEEDING IN PROHIBITION
County 9-1-1 Dispatch filed a declaratory judgment action
against the director of the Missouri Department of
Revenue in the Jefferson County circuit court. The
Director subsequently filed a motion to change venue to the
Cole County circuit court. The circuit court overruled the
Director's motion. The Director now seeks a writ of
prohibition ordering the circuit court to take no further
action other than transferring venue to Cole County.
November 2018, Dispatch filed an action in the Jefferson
County circuit court seeking a declaration as to the meaning
of subsections 5 and 6 of section 190.460 and to enjoin the
Director from applying section 190.460 to Dispatch. Section
190.460 pertains to the collection and calculation of a
prepaid wireless emergency service charge.
Director moved for change of venue, alleging Cole County was
the proper venue pursuant to section 508.010.2, the general
venue statute. Dispatch opposed the motion, arguing venue was
proper in Jefferson County under section 536.050, a specific
venue statute for declaratory judgment actions. Following a
hearing, the circuit court overruled the Director's
motion, finding section 536.050 applied and made venue proper
in Jefferson County.
Director filed a petition for a writ of prohibition in the
court of appeals. The court of appeals initially issued a
preliminary writ but ultimately denied the writ petition
without opinion. The Director then sought a writ of
prohibition from this Court. This Court issued a preliminary
writ, which is now made permanent.
Court has the authority to issue and determine original
remedial writs. Mo. Const. art. V, § 4.1. This Court may
issue a writ of prohibition:
(1) to prevent the usurpation of judicial power when the
trial court lacks authority or jurisdiction; (2) to remedy an
excess of authority, jurisdiction or abuse of discretion
where the lower court lacks the power to act as intended; or
(3) where a party may suffer irreparable harm if relief is
State ex rel. Missouri Pub. Def. Comm'n v.
Pratte, 298 S.W.3d 870, 880 (Mo. banc 2009). "The
relator has the burden of establishing the circuit court
acted in excess of its authority." State ex rel.
Cullen v. Harrell, 567 S.W.3d 633, 637 (Mo. banc 2019).
"It is well-established that this Court accepts the use
of an extraordinary writ to correct improper venue decisions
of the circuit court before trial and judgment."
State ex rel. Kan. City S. Ry. Co. v. Nixon, 282
S.W.3d 363, 365 (Mo. banc 2009).
Director asserts the preliminary writ of prohibition should
be made permanent because venue is proper only in Cole
County. Venue is controlled by statute. State ex rel. BJC
Health Sys. v. Neill, 121 S.W.3d 528, 529 (Mo. banc
2003). Section 508.010.2 provides, when "there is no
count alleging a tort" and "the defendant is a
resident of the state," venue is proper "either in
the county within which the defendant resides, or in the
county within which the plaintiff resides, and the defendant
may be found[.]" In interpreting section 508.010, this
Court has held state executive department heads reside
"in the county where their offices are located and their
principal official duties are performed." Edwards v.
Gerstein, 237 S.W.3d 580, 583-84 (Mo. banc 2007).
action does not involve a tort. Section 508.010.2, therefore,
applies and requires venue to be in the county within which
the Director - a state executive department head - resides.
The Director's office is in Cole County, where he
performs his principal official duties, see §
32.040 ("The board of public buildings shall provide the
director of revenue and the department of revenue with
suitable quarters in the City of Jefferson."), and ...