Opinion
No. WD 61134
January 14, 2003 Modified March 4, 2003
Appeal from the Circuit Court of Cole County, Missouri, Honorable Byron L. Kinder, Judge.
John S. (Jack) Pletz, Jefferson City, MO, for Appellant.
James B. Deutsch, Todd Jones, and Christie A. Kincannon, Jefferson City, MO, for Respondents.
Before Paul M. Spinden, P.J., Patricia A. Breckenridge and Thomas H. Newton, JJ.
Appellants come before this court to challenge the ruling of the circuit court, which dismissed their petition on the basis that banks do not have standing to challenge the administrative decisions and the administrative rules regarding credit union expansion.
I. Factual and Procedural Background
On July 18, 2000, Springfield Telephone Employees Credit Union ("STECU") filed an application with the Director of the Missouri Division of Credit Unions ("Director") for approval of its proposal to expand its potential field of membership to include all those who reside or work in the entire 417 telephone area code and part of the 573 telephone area code. The Director approved the portion of the application that sought to add the 417 telephone area code to STECU's field of membership.
For background information, this definition of a "credit union," taken from the Missouri Credit Union System's website, may prove useful:
Credit unions are not-for-profit financial cooperatives . We exist to serve our members, not to make a profit. Earnings are returned to our members in the form of lower loan rates, higher interest on deposits, and lower fees. Checking and savings accounts, debit/credit cards, IRAs, mortgage services, insurance protection and specialized loan programs are just a few of the options available to credit union members.
See http://www.mcus.org/about/join.html#What
Missouri Bankers Association ("MBA") and Century Bank of the Ozarks ("Century Bank") appealed this ruling by the Director (approving STECU's expansion). Both of the organizations asserted that they were going to be adversely affected by the Director's decision, in that it would increase competition within the banking industry in STECU's expanded territories.
The MBA is a not-for-profit organization established to represent the interests of its members, which include approximately 385 commercial banks and savings banks located throughout the State of Missouri. Century Bank is a commercial bank conducting the business of banking in part of the geographic area covered by the 417 telephone area code.
As part of the review process of STECU's application, the Director determined that the group sought to be added to the credit union included more than 3,000 people. Accordingly, as required by § 370.081.2, the Director forwarded the application to the Credit Union Commission of the State of Missouri ("CUCOM") for approval. Section 370.081.2 states in pertinent part that "only groups with fewer than three thousand members shall be eligible to be included in the credit union's field of membership" unless an exception is granted. On August 3, 2000, CUCOM approved a resolution to grant an exemption relating to the STECU application.
All statutory references are to RSMo 2000 unless otherwise indicated.
After this exemption was approved, the Director published his decision to grant STECU's request for expansion in the Missouri Register on November 15, 2000. MBA and Century Bank ("Appellants") filed an appeal from the Director's decision before CUCOM, and on March 29, 2001, a hearing was held by CUCOM on this matter. Several witnesses testified and exhibits were admitted to determine the legality of the Director's decision that allowed the expansion of STECU. The thrust of the appellants' arguments were that such an expansion would act to their detriment by unfairly allowing the credit union to compete for bank business and that such expansion was not permissible under Missouri law. Respondents (STECU) countered that appellants did not have standing to review the Director's decision.
CUCOM issued its ruling in this matter on August 15, 2001, upholding the Director's decision. It ruled that appellants did have standing to contest the decision, that the Director's decision was not erroneous because STECU's proposed expansion was in accordance with Missouri law, and that the Director did not abuse his discretion in granting the proposal.
Appellants brought this matter for review before the circuit court of Cole County. In their petition before the court, appellants sought: (1) contested case judicial review of the administrative decision that approved STECU's application for expansion; (2) non-contested case judicial review under § 536.150 to determine whether CUCOM appropriately granted an exemption to STECU under § 370.081.2; and (3) a declaratory judgment invalidating 4 CSR 105-3.010(1).
On January 29, 2002, the circuit court issued a judgment granting respondents' motions to dismiss the appellants' action for lack of standing. Appellants now come before this court appealing that judgment order.
Four points are brought on appeal, each one dealing with the issue of whether appellants had proper standing to bring their petition before the circuit court. In Point I, it is argued that appellants had standing to challenge, as a contested case, the Director's decision that allowed STECU to expand their credit union territory. It is argued in Point II that the circuit court erred because appellants had standing to challenge, as a non-contested case, the Commission's decision to grant STECU an exemption from an administrative rule. Furthermore, Point III states that the circuit court erred in dismissing the count of the petition that contested an administrative rule that allegedly contravenes a statute in an unlawful manner. Finally, the Missouri Bankers' Association brings Point IV to contest the circuit court's ruling that it did not have "associational standing" to bring suit in this matter.
II. Standard of Review
"Our review of whether a litigant has standing to pursue claims is de novo and we do not defer to the trial court's order." Home Builders Ass'n of Greater St. Louis, Inc. v. City of Wildwood, 32 S.W.3d 612, 614 (Mo.App.E.D. 2000).
Legal Analysis
Standing to Challenge CUCOM's Administrative Decision
In Point I, appellants argue that the circuit court erred in finding that they did not have standing under § 370.081.5 to appeal the Director's decision to expand STECU's credit union territory. "Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote." Ste. Genevieve Sch. Dist. R-II v. Bd. of Aldermen of the City of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo.banc 2002) (citing Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). "Standing is a threshold requirement. Without it, a court has no power to grant the relief requested." Querry v. State Highway Transp. Comm'n, 60 S.W.3d 630, 634 (Mo.App.W.D. 2001). "Not every person who files a protest and is given an opportunity to be heard by an administrative agency has a right to appeal from the decision of the agency." Mo. Nat'l Educ. Ass'n. v. Mo. State Bd. of Educ., 34 S.W.3d 266, 276 (Mo.App.W.D. 2000). "The standing to contest an administrative action depends on a variety of considerations, including the nature and extent of the interest of the party contesting the action, the character of the administrative action, and the terms of the governing statute." Legal Communications Corp., v. St. Louis County Printing Publ'g Co., 24 S.W.3d 744, 747 (Mo.App.E.D. 2000). Ultimately, "[w]hether a particular person has status to contest the administrative action is a question of law." Mo. Nat'l Educ. Ass'n., 34 S.W.3d at 276.
Therefore, in determining whether appellants had standing before the circuit court, we must first turn to the appropriate governing statute, § 370.081.5, in order to determine whether the legislature conferred standing to organizations such as banks to review these credit union expansion determinations by CUCOM. Appellants claim that the unique phrasing of § 370.081.5 "demonstrates a legislative intention to allow full and effective competitor intervention and review" in the case at hand. Section 370.081.5 states as follows:
Within fifteen days after the decision is published in the Missouri Register, any person or entity claiming to be adversely affected shall have the right to contest the decision by appealing the decision to the credit union commission utilizing the procedure as set out in section 370.063. If the commission finds that the decision or the findings of the director of the division of credit unions was arbitrary and capricious or not based on evidence in the director's possession, the commission shall set aside the findings and decision of the director of the division of credit unions and enter its own findings and decision. Any party who is aggrieved by a final decision of the commission entered pursuant to this subsection and who has exhausted all administrative remedies provided by law may appeal the decision to the circuit court of Cole County.
(emphasis added).
The issue brought before this court is indeed a novel one; no reported case has ever cited this statute for authority. In interpreting this statute, we state well known principles handed down to us from the Supreme Court of Missouri:
The primary rule of statutory construction is to ascertain the intent of the lawmakers by construing words used in the statute in their plain and ordinary meaning. Where the language is clear and unambiguous, there is no room for construction. It is presumed that the legislature intended that every word, clause, sentence, and provision of a statute have effect. Conversely, it will be presumed that the legislature did not insert idle verbiage or superfluous language in a statute.
Hyde Park Hous. P'ship v. Dir. of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993); see also Blue Cross Blue Shield of Kansas City, Inc. v. Nixon, 26 S.W.3d 218, 228 (Mo.App.W.D. 2000).
Compounding the difficulties in determining the legislators' intent in this case of first impression is the fact that § 370.081.5 contains two different "standing conferring" clauses. The first "standing conferring" clause states that "any person or entity claiming to be adversely affected shall have the right to contest the decision by appealing the decision to the credit union commission . . ." § 370.081.5. The second "standing conferring" clause states that "[a]ny party who is aggrieved by a final decision of the commission entered pursuant to this subsection and who has exhausted all administrative remedies provided by law may appeal the decision to the circuit court of Cole County." Id.
In arguing that standing was present in the circuit court, appellants focus on the first "standing conferring clause" because of its broad language which states that standing to appeal shall be given to "any person or entity claiming to be adversely affected." Id. (emphasis added). But a major problem in appellants' focus on this first "standing conferring clause" of § 370.081.5 is the fact that they fail to recognize that this provision refers to "the right to contest the decision by appealing the decision to the credit union commission." Id. (emphasis added). In reading this phrase within its "plain and ordinary meaning," it is clear that this first clause refers only to the appeal that may be taken to CUCOM and not the circuit court. Additional evidence of this legislative intent can be found in the second "standing conferring clause," which states that any party "may appeal the decision to the circuit court of Cole County," and, therefore, is the controlling standing conferring language in that context. Id. Because we are dealing with the issue of whether appellants had standing before the circuit court, we hold that the language contained in the second "standing conferring clause" in § 370.081.5 governs in answering this question of law of whether appellants had standing to come before the circuit court.
Appellants dispute this analysis, stating that "because of CUCOM's affirmance of these Appellants' right to administrative review" before CUCOM, this fact necessarily translates into them having a right to appeal to the Circuit Court. "Not every person who files a protest and is given an opportunity to be heard by the administrative agency has a right to appeal from an order of the agency, but whether a particular person has the right to contest administrative action is largely a question of law, dependent on a number of variable factors, including the nature and extent of his interest, the character of the administrative act, and the terms of the statute." State ex. rel Rouveyrol v. Donnelly, 285 S.W.2d 669, 676 (Mo.banc 1956); Mo. Nat'l Educ. Ass'n., 34 S.W.3d at 276; Wrinkle v. Int'l Union of Operating Eng'rs, Local 2, AFL-CIO, 867 S.W.2d 633, 637-638 (Mo.App.S.D. 1993); St. Joseph's Hill Infirmary, Inc. v. Mandl, 682 S.W.2d 821, 824 (Mo.App.E.D. 1984). In essence, appellants are attempting to bootstrap their argument, that they have standing before the Circuit Court, on the basis that they were "aggrieved" by the decision of CUCOM. But it is critical to appreciate that such an argument would allow essentially anyone the opportunity to be heard before the Circuit Court because of the broad standing conferring language of § 370.081.5 to appeal to CUCOM. Id. ("any person or entity claiming to be adversely affected") (emphasis added). Using appellants' logic, once a party is before CUCOM, it would be a forgone conclusion that this party would then have standing before the Circuit Court as well because an adverse decision by CUCOM would therefore automatically vault that party to "aggrieved" status. But the case law of this Court makes clear that in order to have standing to bring suit in a Missouri court of law, the legislature must make this right express and unambiguous in the statute. ( see infra).
However, as just touched upon earlier, § 370.081.5 sets up a statutory scheme where it is quite apparent the legislature intended a dual review system of these credit union determinations by using different standing conferring language depending on what body a party wishes to appeal to: CUCOM or the Circuit Court. This duality makes practical sense because CUCOM's duties are exclusively to review these type of credit union expansion determinations. See § 370.062. Therefore, it is this body that has the time and expertise to review the detailed grievances and concerns of anyone and everyone who chooses to come before them. Were we to impose this same burden on the Cole County Circuit Court, it would leave our already overburdened and overtaxed trial courts the onerous chore of having a detailed hearing for "any person or entity claiming to be adversely affected." § 370.081.5 (emphasis added). But our legislature had the wisdom to avoid such a result, and decided to make the circuit court available to hear only those individuals who are in fact aggrieved. Holding otherwise would not only be contrary to the most fundamental principles of civil procedure in Missouri in order to be heard in a court of law (that you have to actually have an interest in the lawsuit, it is not enough just to claim to have an interest), it would also go against the plain words of § 370.081.5.
It is indeed a fundamental principle of law that before one has access to a Missouri court of law, a showing must be made that one has an actual right to be heard; merely claiming so is insufficient. Metro. Auto Auction v. Dir. of Revenue, 707 S.W.2d 397, 400 (Mo.banc 1986) ("The party seeking relief must demonstrate that he has a specific and legally cognizable interest in the subject matter of the administrative action and that he has been directly and substantially affected thereby."). This principle is not only engrained in the state courts of Missouri, but it is also embedded throughout our country's jurisprudence. See generally, Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (To show Article III standing, a plaintiff has the burden of proving (1) that he or she suffered an injury-in-fact, (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision.).
Therefore, this issue of standing turns on whether appellants can be considered, under § 370.081.5's language, "[a]ny party who is aggrieved by a final decision of the commission." Id. If so, the ruling by the circuit court must be reversed, and the case remanded for a hearing on its merits. In determining whether appellants were "aggrieved" by the Commission's decision to allow the credit union to expand, we have been directed by the opposing parties to a significant body of case law that has ruled on this "competitor standing" issue in analogous situations. But before we reach that issue, let us touch upon one last point in regards to appellants' argument that they were "aggrieved" because their appeal before CUCOM was unsuccessful. In their brief before this Court, they state "[w]hen the plain and ordinary meanings of the word [aggrieved] are applied, the Appellants clearly were 'aggrieved' by CUCOM's decision in this case because they suffered the injury of its loss and feel they have been afforded a rightful reason for complaint." (emphasis added). Of course, the question that must follow this statement is, what exactly is the "injury of its loss" and the "reason for complaint" by appellants? And after reading the paragraphs that immediately follow this argument in appellants' brief, there can be no doubt that it is all related to one factor: economic competition. The reason why appellants claim to be "aggrieved" by the decision of CUCOM is because of the substantive impact of its decision, which added economic competition to the banking industry. Therefore, we must determine whether complaining of such "economic competition" allows one standing to come before the circuit court under § 370.081.5.
In arguing that banks fall within the scope of parties "aggrieved" by CUCOM's administrative decisions because they have "competitor standing," appellants rely heavily on the Eastern District's holding in Legal Communications Corp., which stated that "[t]he status of a competitor has, however, been used in combination with policy considerations to grant standing to challenge the decisions of an administrative agency." 24 S.W.3d at 748. But one need not search long to determine why Legal Communications Corp. is distinct from our case; Legal Communications Corp. dealt with the unusual scenario where there was no specific procedure set up by the legislature in the applicable statutory scheme for reviewing the administrative decision in question. Id. In holding that this economic competitor had standing to bring suit in Legal Communications Corp., it is critical to understand that its holding was based on the following:
Chapter 493 provides no procedure by which the decisions of the Board may be appealed. Consequently, we cannot look to the statute for explicit guidance as to who has standing to contest the Board's action. We can, however, look to the purpose of the statute to determine if the alleged injury to Legal Communications is the type of interest the statute seeks to protect.
Id. at 247-48.
Our case is distinct from Legal Communications Corp. because the legislature provided an express procedure in which to review CUCOM determinations, and, therefore, § 370.081.5 controls this question of law of whether economic competitors have standing under the statute. This court has held on numerous occasions that "[u]nless the third party has a private right of basic constitutional dimension, the right of a competitor to intervene exists only when the legislature has broadened the class of affected parties." See Gold Cross Ambulance, Inc. v. Mo. Dep't of Health, 866 S.W.2d 473, 475 (Mo.App.W.D. 1993) (citing Cmty. Care Ctrs., Inc., v. Mo. Health Facilities Review Comm., 735 S.W.2d 13, 16 (Mo.App.W.D. 1987)). In fact, this court has consistently held that the dispostive factor in determining whether an economic competitor has standing to bring suit to challenge an administrative decision is whether the legislature intended to authorize such standing via the statute. "It is a matter for the legislature to decide whether the public interest is served by permitting intervention by third parties having a collateral interest in the subject for administrative action." Cmty. Care Ctrs., Inc., 735 S.W.2d at 16. "The legislative decision is pivotal." Id. at 15-6. "Whether the system of regulation is best served by allowing competitors to participate in the administrative procedure is a legislative decision." St. Joseph's Hill Infirmary, Inc., 682 S.W.2d at 826. "If the legislature had intended to grant economic competitors standing to appeal in [the administrative decision], the language granting such standing would have been more explicit and plain." Gold Cross Ambulance, Inc., 866 S.W.2d at 475.
Indeed, there is constitutional authority "for judicial review of actions of administrative agencies that affect private rights." See Mo. Nat'l Educ. Assoc., 34 S.W.3d at 275-76 (citing Mo. CONST. art. V, § 18). Appellants are correct in stating that "Article V, Section 18 of the Missouri Constitution grants a constitutional right to judicial review of administrative agency decisions as authorized by statute." (emphasis added). Appellants argue that they have a constitutional right derived through a statute, but what this argument fails to grasp is that without demonstrating a "private right" to bring suit under the Missouri Constitution, § 370.081.5 is the sole means by which they may obtain review of CUCOM's decision. See id. Sections 536.100-§ 536.140 provide a constitutional means to seek judicial review of an administrative agency decision as a contested case "unless some other provision for judicial review is provided by statute." Section 536.100; see also Grace v. Mo. Gamming Comm'n, 51 S.W.3d 891, 896 (Mo.App.W.D. 2001). Here, as previously mentioned, it is not disputed by any party to this appeal that there is another provision for judicial review "provided by statute" on point: § 370.081.5. Therefore, that statute is the controlling provision of law and appellants may not assert § 536.100 as an alternate means for review. See § 536.100. Finally, § 536.150 of the Administrative Procedure and Review Act also allows an individual to bring such a constitutional claim under Article V, Section 18 of the Missouri Constitution, affording "judicial review of a noncontested case when the agency action determines the 'legal rights, duties or privileges of any person.'" Grace, 51 S.W.3d at 896 (emphasis added). However, in their brief before this Court, appellants do not dispute the fact that any review of CUCOM's decision to expand STECU's credit union territory would constitute contested case review (as opposed to non-contested case review). Therefore, § 536.150 is not a viable means for appellants to bring this decision for review. Id. Accordingly, it follows that in order for appellants to have this determination by CUCOM reviewed, it had to be brought under § 370.081.5.
In Gold Cross, this court was faced with a similar issue as today's case in regard to competitor standing, where an ambulance service (Gold Cross) sought to review the administrative decision to grant a potential competitor an ambulance license. Id. at 474. In reviewing whether Gold Cross had standing to contest this determination, we first turned to the applicable statute that allows review of these administrative decisions, § 190.171. Id. In particular, this Court focused on the statutory language that stated "[ a] ny person aggrieved" had standing to review the administrative decision, in order to determine whether economic competitors fell within that category. Id. (quoting § 190.171). In answering that question, it was found that the "legislature has not specifically granted standing to include competitors nor has it specifically limited standing to the applicant and the agency." Id. at 475.
Accordingly, in Gold Cross, we consulted other sources in order to resolve the critical issue of "whether the legislature has broadened the class of aggrieved persons in the ambulance licensing area to include competitors." Id. In determining whether such a legislative expansion had occurred, we relied heavily on the Eastern District's decision in St. Joseph's Hill Infirmary, Inc. v. Mandl, which held that "[g]enerally speaking the 'right' to be free from legitimate competition is not a right at all and is certainly not one protected by law." 682 S.W.2d at 824. The holding in Mandl was critical to this court's analysis in Gold Cross Ambulance because the Mandl court was likewise attempting to determine whether, under the relevant statute, a competitor status allows a party to fall within the "aggrieved" definition. 866 S.W.2d at 475. (" Mandl decided that a competitor did not have standing as an aggrieved party to challenge the grant of a nursing home license.").
In concluding that standing was not present, the Mandl court conducted a survey of the relevant case precedent, in particular two cases [ Bank of Belton v. State Banking Bd., 554 S.W.2d 451 (Mo.App.W.D. 1977); Farmer's Bank of Antonia v. Kostman, 577 S.W.2d 915, 920 (Mo.App.W.D. 1979)] that held that a bank had standing to challenge the administrative decision to license a new bank that would become a competitor of the petitioner. 682 S.W.2d at 824. In Mandl, it was recognized that the issue of standing hinged on legislative authorization and that in the banking cases it had been explicitly given in the standing conferring statute (§ 361.095) by referring to banks by name. Id. at 825-26. Ultimately, it was concluded in Mandl that the banking cases were illustrative of why the competitor in that case did not have standing because, unlike the banking cases, the legislature did not evidence an intention in the statute to allow those types of economic competitors to have standing. Id.
Gold Cross is not this court's only case to find the analysis in Mandl persuasive. In Community Care Center, Inc., we also revisited Mandl's analysis, finding that the " Bank of Belton and Farmer's Bank cases are distinguishable from the present case in that the court based the decisions on statutes evidencing a legislative purpose to permit intervention by competing banks in the administrative process." 735 S.W.2d at 15. We went on to state that the "distinction between the banking cases and the certification of health care facilities is that in the former, the legislature has provided for competitor intervention whereas in the latter, it has not. The legislative decision is pivotal." Id at 15-16.
Appellants in this case are correct in their assertion that Community Care Center, Inc. is distinct from our case in that the standing conferring statute in question in that case, § 197.335, expressly limited standing only to the applicant, thereby excluding any possibility that competitors could come before the circuit court to review the administrative decision. 735 S.W.2d at 14. Notwithstanding that fact, Community Care Center, Inc. falls in line with our unanimous case law that distinguishes the banking cases on the grounds that the legislature had not made a grant of competitor standing express in the statute at hand. See Gold Cross, 866 S.W.2d at 474-75 ; Mandl, 682 S.W.2d at 824-26.
In applying this body of case law to resolve the issue of standing presented today, it becomes crystallized that we must return to the standing conferring language of § 370.081.5 that allows "[a]ny party who is aggrieved by a final decision of the commission" to review CUCOM determinations. Like in the cases of Gold Cross and Mandl, in § 370.081.5, the "legislature has not specifically granted standing to include competitors nor has it specifically limited standing to the applicant and the agency." Gold Cross, 866 S.W.2d at 475. In this case the circuit court, in dismissing the appellants' action for lack of standing, concluded that "Chapter 370, RSMo, Credit Unions, reveals no suggestion of a legislative grant of a right of appeal of CUCOM regulatory agency decisions by economic competitors, such as [appellants]."
Today, we hold that the circuit court did not err in dismissing Count I of appellants' Petition for lack of standing. Our decision is based on the fact that this determination is grounded in this Court's previous holdings, which have held that it is incumbent upon the legislature to take affirmative steps in the statute to broaden the class of potential litigants. Moreover, this decision is grounded in fundamental principles of statutory construction that have guided Missouri courts for years; specifically, we are guided by the following principles of statutory construction as stated by the Supreme Court of Missouri in Kilbane v. Dir. of Revenue:
In construing statutes to ascertain legislative intent it is presumed the legislature is aware of the interpretation of existing statutes placed upon them by the state appellate courts, and that in amending a statute or in enacting a new one on the same subject, it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature would be accomplishing nothing, and legislatures are not presumed to have intended a useless act.
Kilbane v. Dir. of Dep't of Revenue, 544 S.W.2d 9, 11 (Mo.banc 1976); see also Cub Cadet Corp. v. MOPEC, Inc., 78 S.W.3d 205, 215 (Mo.App.W.D. 2002). Including the language "any person who is aggrieved" in the standing conferring statute has been found time and time again to be insufficient to bring within the fold of review economic competitors. See supra Gold Cross; Mandl. "If the legislature had intended to grant economic competitors standing to appeal in [administrative decision] cases, the language granting such standing would have been more explicit and plain than the language in [the statute]." Gold Cross, 866 S.W.2d at 475. We are compelled to believe that the legislature was well aware of our well-defined case law when it last amended § 370.081.5 in 1998. See Kilbane, 544 S.W.2d at 11. Furthermore, because of this background we can only presume that the legislature was also aware that when interpreting the term "aggrieved" in the statute, its meaning would be given the same interpretation as it had been in the past by this Court.
Therefore, with this background, we return to § 370.081.5, and why we further believe it was the legislature's express intent to create a dual system of reviewing the Director's decision in regard to credit union expansion. ( see supra). As discussed previously, it cannot be disputed that the legislature used different standing conferring language in the statute depending on which reviewing body the individual wishes to come before. The legislature decided to allow " any person or entity claiming to be adversely affected" to come before CUCOM. § 370.081.5 (emphasis added). However, in order to continue in the review process before the Circuit Court, the legislature changed the relevant language of who had standing to " [a]ny party who is aggrieved." Id. Surely, the legislature knew the impact such a drastic difference of language would have on § 370.081.5 when referring to the different bodies and who could come before them, especially in light of our rich case law interpreting the term "aggrieved" narrowly in the context of economic competitors. See Kilbane, 544 S.W.2d at 11. Based on these fundamental principles of statutory construction, coupled with our relevant case law, we are left with no other conclusion but to find that appellants did not have standing to bring Count I of their petition.
Appellants insist that such a legislative intent can be found in "Chapter 370, RSMo, Credit Unions," to grant banks standing to review CUCOM determinations to expand a credit union's territory. In particular, appellants refer this court to § 370.080.2(2), arguing that they fall within the "zone of interests" protected by that statute and that, therefore, they have standing to bring suit to review administrative decisions under the statute. Section 370.080.2 states as follows:
A credit union shall be composed of one or more groups of persons. The members of each such individual group must share:
(1) A common occupation, association, employer or;
(2) A credit union may include those persons who reside or work in a well-defined local neighborhood, community or rural district as such terms are defined by the commission.
Id.
It is appellants' argument that this provision of the statute, which limits the method and manner that a credit union may expand according to Missouri law, was written by the legislature to benefit the banking industry. In their brief, it is argued that "[i]n part because certain major economic advantages that have been given by state and federal statutes to credit unions . . . legislatures have for many years imposed significant restrictions on the growth and expansion of credit unions." But beyond their own testimony (of Max Cook, President and CEO of the Missouri Bankers Association), appellants fail to cite any source to support the aforementioned statement. Most importantly, appellants are unable to cite to any authority that states that this was the underlying motivation of the Missouri legislators when they passed § 370.080.2(2).
It is true that this court has held that demonstrating that a class of individuals is an "intended beneficiary" of a statutory provision is sufficient to confer standing on those beneficiaries to review an administrative decision under that statute. See Mo. Nat'l Educ. Ass'n., 34 S.W.3d at 275-76. In Missouri National, we were confronted with the issue of whether an organization of teachers could challenge the administrative decision to grant exemptions to school districts so that the school districts were not required to compensate teachers as provided by the relevant statute. Id. at 275. In holding that the teachers did have standing, central to our analysis was that "[b]y the clear language of the statute, the certified staff of a public school district is the intended beneficiary of section 165.016." Id. at 276. There can be no doubt, as we found in Missouri National that this statute refers directly to teachers in that "[s]ubections 1 and 2 of the statute provide that a school district expend a certain percentage of current operating costs for compensation of certificated staff." Id.; see also § 165.016 ("A school district shall expend as a percentage of current operating cost, for tuition, teacher retirement and compensation of certificated staff . . .).
But § 165.016 is simply a different statute than the one we are reviewing today. Although it is plausible that § 370.080.2(2) was written to indirectly benefit banks by limiting the means by which credit unions may expand, we cannot conclude "[b]y the clear language of the statute" that banks are "the intended beneficiary of [§ 370.080.2(2)]. Mo. Nat'l, 34 S.W.3d at 276. Simply put, because the legislature did not make this intent clear, as it did in Missouri National, we would be basing the conclusion that banks are "intended beneficiaries" of that statute on mere conjecture and supposition. Id. That we simply cannot do.
Moreover, appellants urge this court to follow the federal analog of credit union law, and the United States Supreme Court ruling in this regard that held that banks have standing to challenge the administrative decision to allow the expansion of credit unions. See Nat'l Credit Union Admin. v. First Nat'l Bank Trust Co., 522 U.S. 479, 488-500 (1998). In coming to this conclusion (that banks held a "zone of interest" in these determinations), 12 U.S.C. § 1759 played an integral role in the Court's analysis. Id. at 492. Section 109 of that statute provides that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." Id. (quoting 12 U.S.C. § 1759). After reviewing this statute, the Court stated the following:
[E]ven if it cannot be said that Congress had the specific purpose of benefiting commercial banks, one of the interests 'arguably . . . to be protected' by § 109 is an interest in limiting the markets that federal credit unions can serve. . . . As competitors of federal credit unions, [banks] certainly have an interest in limiting the markets that federal credit unions can serve, and the [Director's] interpretation has affected that interest by allowing federal credit unions to increase their customer base.
Id. at 492-94.
It is true that the similarities between § 109 and our statute, § 370.080.2 are striking. Like § 109, § 370.080.2's purpose is seemingly to limit and control the expansion of credit union growth. See § 370.080.2. However, the critical flaw in attempting to apply the Supreme Court's "zone of interests" standing analysis in National Credit Union Administration to our case is the fact that Missouri courts have consistently held that the legislature must expressly and unambiguously state in the statute that such third parties have a right to appeal the administrative decision. See supra. The "zone of interests" analysis employed by the federal judiciary simply does not require the legislature to make this intent to confer standing on third parities express in the statute. See Nat'l Credit Union Admin., 522 U.S. at 492 ("Our prior cases, therefore, have consistently held that for a plaintiff's interests to be arguably within the "zone of interests" to be protected by a statute, there does not have to be an indication of congressional purpose to benefit the would-be plaintiff. The proper inquiry is simply whether the interest sought to be protected by the complainant is arguably within the zone of interests . . . to be protected by the statute.") (emphasis added). Accordingly, because the federal "zone of interests" jurisprudence is distinct and different from our well developed case law, appellants attempts to apply this analysis to today's case are unavailing.
Appellants bring forceful policy arguments as to why they should have standing to review CUCOM's determination to allow the credit union to expand. It is seemingly true, as appellants point out, that by denying them standing, CUCOM's determinations allowing credit unions to expand will often go unreviewed. But this review process "can be effected by the proper agency performing investigations, and acquiring information from interested entities and through a hearing process." Gold Cross Ambulance, 866 S.W.2d at 475. In this case, appellants had an opportunity to be heard before CUCOM to appeal and dispute the Director's determination that allowed STECU to expand its credit union territory. Of course, appellants now desire to go one step further in the review process because they assert that they have a "legal right to be free from competition which is illegitimate." But, notwithstanding the relative merits of appellants' legal arguments, because § 370.081.5 does not confer appellants standing to contest CUCOM's decision, we cannot find that the circuit court erred in dismissing Count I of appellants' Petition for lack for standing. Point I is denied.
B. Standing to Challenge CUCOM's Allocation of an Exemption Under § 370.081.2(1).
Appellants argue in Point II that the circuit court erred in dismissing Counts II and III of their Petition because they had standing to challenge the Commission's allowance of an exemption pursuant to § 370.081.2(1) based on "non-contested case review" under § 536.150. In arguing that they have standing to appeal this determination, appellants first focus on the fact that "[n]othing in Chapter 370 provides for judicial review of CUCOM decisions on these Section 370.081.2 matters," and, therefore, their petition seeks "noncontested case judicial review." In distinguishing between contested and noncontested cases, we laid out the following distinction in Bruemmer v. Missouri Department of Labor Relations: "The key to the classification of contested and noncontested cases is the hearing requirement. A contested case is one in which a proceeding is contested in a hearing because of some requirement by law." 997 S.W.2d 112,117 (Mo.App.W.D. 1999) (citations omitted).
Moreover, appellants argue that they have the ability to seek noncontested case review of the § 370.081.2(1) exemption granted to STECU because this exemption was in fact made by CUCOM, not the Director, and, therefore, this decision was never effectively reviewed, making this determination "noncontested." It is true, as appellants point out, that § 370.081.2(1) requires the Director to obtain the express authorization of CUCOM if the proposed expanded territory is to exceed three thousand members. Id. ("[O]nly groups with fewer than three thousand members shall be eligible to be included in the credit union's field of memberships; unless (1) Any group which the commission determines . . ."). In its judgment order, the circuit court, in dismissing Counts II and III of appellants' Petition, found that the "administrative officer here, the Director, rendered his decision granting STECU an expanded Field of Membership. This decision was subject to administrative review upon appeal to the Credit Union Commission by [appellants]." In this case, CUCOM, not the Director, granted such an exemption (the proposed territory, the entire 417 telephone area code, clearly being beyond three thousand people), and this is the action appellants seek to review in Count II and III of the petition before the circuit court. Because there was no hearing on this determination, appellants are correct that any review of this exemption would be "noncontested review." See Bruemmer, 997 S.W.2d at 117.
However, appellants still must make the requisite showing that they have standing to bring noncontested styled review, under § 536.150, of CUCOM's decision to grant STECU a § 370.081.2(1) exemption. "For a party to have standing for review under § 536.150, the agency action must directly affect the private rights of the person seeking judicial review." Querry, 60 S.W.3d at 636 (citing Mo. Nat. Educ. Ass'n, 34 S.W.3d at 275); see also Mo. Health Care Ass'n v. Mo. Health Facilities Review Comm., 777 S.W.2d 241, 244 (Mo.App.W.D. 1989) ("Inasmuch as the Committee's decision has affected no legally protectible interest of the Association, the plaintiff has no standing under § 536.150 to challenge that decision."). Accordingly, this issue of standing here turns on whether appellants have demonstrated a "protectible interest" that "directly affects private rights." Querry, 60 S.W.3d at 636.
Although we agree with appellants that this determination of whether they have a "protectable interest" to review CUCOM's determination presents unique contours to the standing analysis not presented in contested case analysis ( see Point I, determining whether appellants were "aggrieved"), these standing questions are not unrelated. That is, like in the contested case realm, critical to our determination of whether one has standing to bring "non-contested" review of an administrative decision is the intent of the legislature. See Mo. Nat. Educ. Ass'n, 34 S.W.3d at 276 ("Not every person . . . has a right to appeal from the decision of the agency . . . The determination, ultimately, rests on policy as well as law so . . . to allow or deny status for judicial review depends upon the discerned legislative values."). Unfortunately for appellants, they have failed to expand and develop arguments, based on legal principles, to support their contention that they "have been and are parties to an action involving the STECU application, and their rights are affected by the first decision of CUCOM," beyond conculsory assertions. The essence of appellants' argument in this Point is the following:
It is the right to be free from illegitimate competition that the Appellants should be allowed to protect through judicial review of this noncontested case decision by CUCOM, which decision also implicitly concluded that STECU could expand into this area with a population of more than 800,000 people on the grounds that, for example, that group of people lacked "sufficient volunteer or other resources to support the efficient and effective operation of a credit union" (for that would have been a necessary CUCOM finding before the Director could have proceeded to approve the expansion application, even had such an exemption been available in this case, under subsection (1)(a) of Section 370.081.2, RSMo).
But, like in Point I, appellants have failed to show a "protectable interest" that allows for review under § 536.150. "A plaintiff has no right to be free from economic competition." Mo. Health Care Ass'n, 777 S.W.2d at 244 (citing Cmty. Care Ctrs., Inc., 735 S.W.2d at 16; see also Mandl, 682 S.W.2d at 824.)
Appellants attempt to distinguish this line of case law by stating that it is their desire to be free from illegitimate economic competition. But this argument forgoes the fact that before we can delve into the substance of appellants' arguments, it must first be established they have standing to bring them before the Circuit Court. "Standing is a threshold requirement. Without it, a court has no power to grant the relief requested." Querry v. State Highway Transp. Comm'n, 60 S.W.3d at 634. Accordingly, the determination of whether appellants' petition has merit is not be relevant to the initial determination of whether they have standing to bring suit.
Of course, had appellants made a showing of legislative intent to confer standing on economic competitors to review administrative decisions in the context of § 370.081.2(1), our holding today would be different. But without such a statutory showing evidencing a legislative intent to broaden the class of individuals that have a right to review these administrative decisions, we are bound to follow our unequivocal case law that refuses to expand the class of potential litigants on policy considerations alone. Point II is denied.
C. Standing to Seek a Declaratory Judgment
In Point III, appellants assert that the circuit court erred in dismissing, for lack of standing, Count IV of their petition, which sought a declaratory judgment under § 536.050.1 of the validity of 4 CSR 105-3.010(1). The legislature, in the Administrative Procedure and Review Act, provided a specific statute that confers standing to challenge administrative rules in § 536.053, which states the following:
In dismissing appellants' request for a declaratory judgment because of a lack of standing, the circuit court cited to § 536.150. No party to this appeal disputes that the circuit court cited to the wrong statute — § 536.150 is the standing provision for non-contested case review, not declaratory judgments. See id. When challenging an administrative rule through seeking a declaratory judgment, § 536.050 is the controlling part of the statute. Notwithstanding, this erroneous citation has no bearing on our de novo review of whether the circuit court ultimately erred in finding standing was wanting for Count IV of appellants' petition.
Any person who is or may be aggrieved by any rule promulgated by a state agency shall have standing to challenge any rule promulgated by a state agency and may bring such an action pursuant to the provisions of section 536.050.
Id. (emphasis added).
In arguing that they are among the class of individuals that have standing under § 536.053 to challenge this administrative rule, appellants focus on words from the statute stating the following:
It is significant that the General Assembly did not limit standing in these cases to person who "are aggrieved" by an agency rule. Rather, the General Assembly chose expressly to include in the field of persons who can bring rule challenges any person who "may be aggrieved" by a rule promulgated by a state agency.
However, appellants cite no authority for the proposition that the legislature, by preceding the term "aggrieved" with "may" in § 536.053, intended to expand the class of individuals who can contest administrative rules beyond those who can challenge administrative decisions in such statutes as § 370.081.5 and § 536.150. Indeed, a review of the relevant case law evidences no such analytical distinction. "This court determines standing to challenge an agency rule or regulation under the same standards as standing to challenge a statute or municipal ordinance. A party has standing to challenge the constitutionality of a statute (or rule or directive as the case may be) only insofar as it has an adverse impact on his own rights." EBG Health Care III, Inc., v. Mo. Health Facilities Review Comm., 12 S.W.3d 354, 362 (Mo.App.W.D. 2000) (citations omitted). Accordingly, in determining whether appellants have standing to challenge this administrative rule under § 536.053, this court must engage in analysis similar to that employed in Points I and II of this opinion.
It is, therefore, not surprising that, after arguing that this court's standing analysis should be distinct and different under § 536.053 from the other contexts presented in this appeal, appellants fall back on the same arguments raised in Points I and II as to why they should have standing under this specific statute. In sum, appellants' argument in Point III is encapsulated in the following passage:
Given the Appellants' legally protectable interest to be free from illegitimate competition, as explained in Point I. B. above and under the Legal Communications Corp. case, and given the Appellants' status as intended beneficiaries who are within the zone of interests protected by Section 370.080.2, RSMo, as explained in Point I. C. above and under [ Mo. Nat'l Educ. Ass'n] and the other cited cases, Appellants should be deemed to be proper parties to bring this direct rule challenged under Section 536.050, RSMo.
Unfortunately for appellants, these standing arguments are no more compelling in the context of challenging administrative rules than they were for challenging administrative decisions. Ultimately, as explained in detail earlier in this opinion, these cases cited by appellants are insufficient authority to demonstrate that they have standing to challenge an administrative rule that regulates credit unions. Accordingly, without standing, the circuit court did not err in dismissing Count IV of their Petition. Querry, 60 S.W.3d at 634 ("Standing is a threshold requirement. Without it, a court has no power to grant the relief requested."). Point III is denied.
D. The Missouri Bankers Association ("MBA") and "Associational Standing"
In Point Four, the MBA asserts that the circuit court erred in finding that it did not have "associational standing" to bring suit in this matter. An association is allowed to sue on behalf of its members when the following are present:
(a) its members would otherwise have standing to bring suit in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Mo. Outdoor Adver. Ass'n Inc. v. Mo. State Highways Transp. Comm'n, 826 S.W.2d 342, 344 (Mo.banc 1992) (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)). Because we hold today that the MBA's members would not have standing "to bring suit in their own right" under any of the counts in the Petition before the circuit court, it must then follow that the MBA itself cannot have "associational standing" to bring that suit on its members' behalf. Id. Therefore, the circuit court did not err in holding that the MBA lacked "associational standing." Point IV is denied.
Finally, we must review the motion submitted by CUCOM requesting this court to dismiss them as a party to this appeal on the basis that they are: (1) not a proper party, and (2) not a necessary party. Because we rule today that appellants' Petition was properly dismissed by the circuit court for lack of standing, this motion is moot and we will not delve into its merits.
IV. Conclusion
After reviewing the trial transcript, the record on appeal, and the briefs of the parties, we conclude that the judgment of the circuit court should be affirmed.
Paul M. Spinden, P.J. concurs, and Patricia A. Breckenridge, Judge, concurs in result.