IN RE T R.M.A. FRIEN D APPLE

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n was2 Factual and Procedural Background On July 23, 2014, R.M.A., through his next friend, f iled a petition for a writ of mandamus ("Petition") with the Circuit Court of Jackson Co unty. The Petition alleged that the Blue Springs R-IV Sc hool District, the Blue Springs School District Board of Education, the superintendent of Blue Springs R-IV School District, and the assistant superintendent of Blue Springs R-IV School District, (collectively "Respondents"), had refused to allow R.M.A., a tr ansgender male, access to the boys restrooms and locker rooms. The Petition asserted that, pursuant to federal 1 and Missouri law, 2 R.M.A. has a right to access the boys restroom and locker rooms and that the Resp ondents have a clear and unconditional legal duty to provi de R.M.A. with that acce ss. The Petition requested a writ of mandamus "commanding Respondents to grant [R.M.A.] and all other transgendered students of the Blue Springs R -IV School District full and equal access to the appropriate restroom, lock er room, and any other facilitie s segregated by sex as is consistent with their gender identity." The trial court did not initially deny the Pe tition. Nor did the trial court grant a preliminary order in mandamus. Rather, w ithout being summoned or otherwise ordered by the court to do so, the Re spondents filed an answer to the Petition on Au gust 22, 2014, asking that the request for a writ of mand amus be denied and that the Petition be dismissed with prejudice.

1 In particular, the Petition cited the Equal Protection Cl ause of the Fourteenth Amendment and Title IX of the Educational Amendments Act of 1972 , 20 U.S.C. sections 1681-1688. 2 In particular, the Petition cited to the Missouri Constitu tion article 1, section 2, and section 213.065. All statutory references are to RSMo 2000 as su pplemented unless otherwise indicated.3 The trial court conducted a case manage ment conference on November 5, 2014, and imposed a briefing sc hedule. In January 2015, the parties submitted stipulated facts to the trial court and filed briefs in support of their respective positions on the issues raised by the Petition. The trial court held a hearing on February 11, 2015, to permit th e parties to orally argue their positions based on the stipulated fact s. At the conclusion of the hearing, the trial court stated, "I'm going to decide this based upon these arguments here, the briefs I've received, and my view of the law." The trial court issued its judgment ("J udgment") on March 5, 2015, denying the Petition. The Judgment concluded that R. M.A. has "no existing, clear, unconditional legal right which allows . . . R.M.A. to acce ss restrooms or locker rooms consistent with R.M.A.'s gender identity." The Judgment fu rther concluded that a writ of mandamus was inappropriate because administrative re medies remained available to R.M.A. 3 R.M.A., through his next friend, appeals. Authority to Entertain Appeal "In every case before considering claims ra ised on appeal, this Court has a duty to sua sponte determine whether we have auth ority to decide the appeal." Collector of Revenue of City of St. Louis v. Parcels of Land Encumbered with Delinquent Tax Liens , 350 S.W.3d 840, 841 (Mo. App. E.D. 2011). That includes the obligation "to determine,

3 The Petition was filed even though R.M.A. was pursuing traditional administrative remedies to remediate discrimination. During the hearing on the Petition, R.M.A.'s attorney stated that her client had "a pending charge of discrimination with the Missouri Human Rights or the Missouri Commission of Human Rights." During oral argument before this court, R.M.A. confirmed that a civil action pursuing relief under the Missouri Human Rights Act has been filed.4 sua sponte , whether the circuit court entere d a final appealable judgment." Banks v. Slay , 410 S.W.3d 767, 768 (Mo. A pp. E.D. 2013). "Writs are extraordinary remedies, and their procedures differ from normal civil actions." U.S. Dep't of Veterans Affairs v. Boresi , 396 S.W.3d 356, 35 9 n.1 (Mo. banc 2013). Ordinarily, when a writ petition is denied, the appropr iate recourse is to file the denied writ petition in a higher court. Id. at 358 (citing Rules 84. 22 to 84.26 and 94.01 et seq. ). However, in limited circumstances, an appeal may be taken from the denial of a writ petition. Id. Boresi , which reflects the Supreme Cour t's most recent discussion of this topic, recognizes two such ci rcumstances. First, "[a]n appeal will lie from the denial of a writ petition when a lower court has issu ed a preliminary order in mandamus but then denies a permanent writ." Id. (emphasis added) (citing State ex rel. Ashby Road Partners, LLC v. State Tax Comm'n , 297 S.W.3d 80, 83 (Mo. banc 2009) (addressing writs of prohibition pursuant to Rule 97)). Second, "whe n the lower court issues a summons, the functional equivalent of a pre liminary order, and then denies a permanent writ, appellate review is available ." Id. at 359 (citing Ashby Rd. Partners, LLC , 297 S.W.3d at 84). Here, neither trigger permitti ng appellate review is pres ent. After the Petition was filed, the trial court did not grant a preliminary order in mandamus. Nor did the trial court issue a summons, the functional equivale nt of a preliminary order in mandamus. Rather, the parties and the trial court procee ded as if the Petition initiated an ordinary civil action, seemingly oblivious to the requi rements of Rule 94. And R.M.A. now seeks5 appellate review of the Judgment's denial of the Petition on the merits, without regard to Boresi
. R.M.A.'s confusion over whether the Ju dgment is a final, appealable judgment may be fueled by pre- Boresi precedent which suggests that the controlling factor in determining the right to appeal is whethe r a writ has been denied on the merits. See, e.g. , Stone v. Mo. Dep't of Co rr., Prob. & Parole Bd. , 313 S.W.3d 158, 160 (Mo. App. W.D. 2010) (holding that "when the circuit c ourt denies a petition for writ of mandamus following an answer or motion di rected to the merits of the controversy and, in doing so, determines a question of fact or law, we trea t the court's ruling as final and appealable"). Given Stone and other similar cases, it is perhap s understandable that parties and trial courts have focused on posturing mandamus proceedings for disposition on the merits, placing no utility on abiding by the procedures described in Rule 94. In announcing when an a ppeal will be permitted followi ng denial of a permanent writ, Boresi did not address Stone or other similar cases which hold that an appeal will lie from a trial court's denial of a writ petition on the merits. However, it is difficult to read Boresi as endorsing continued reliance on this le gal principle in cases where Rule 94 has not been followed. 4 As noted, Boresi held an appeal "will lie" from th e denial of a permanent writ by a lower court after issuance of a prelimin ary writ. 396 S.W.3d at 358. And Boresi held an appeal "is available" when a permanent writ is denied by a lower court after "the lower court issues a summons, the functional eq uivalent of a preliminary order." Id. at 359.

4 See footnote 7 infra
.6 The phrase "is available" is markedly different from the phr ase "will lie," implying that there is no appeal as a matter of right unless a preliminary writ has been issued before a permanent writ is denied, and implying that an appeal is only available as a matter of discretion where a trial court issues a summons that can be viewed as the "functional equivalent" of a preliminary writ. This supposition is confirmed by a footnote in Boresi : [T]he . . . practice of issuing a summons in lieu of a preliminary writ is not authorized by Rule 94. 5 Writs are extraordinary remedies, and their procedures differ from normal civil actions. The practice of issuing a summons rather that a preliminary orde r fails to acknowle dge the nature of the remedy. Additionally, it requires a response from the respondent without regard to the mer its of the petition. Nevertheless, this Court is exercising its discretion to consider the matter on the merits and issue the writ because the parties, who already have litigated the matter fully, were not at fault and should not be require d to initiate a new writ proceeding due to the circuit court's failure to follow the procedure proscribed by the rules. This Court is not required to exercise its discretion in like manner in the future. 396 S.W.3d at 356 n.1. Plainly, Boresi holds that trial courts and parties are not free to disregard the plain language of Rule 94. Plainly, Boresi holds that the ability to seek appellate review from the denial of a perman ent writ (as opposed to the right to file a denied writ in a higher court) is tied to compliance with the provisions of Rule 94. 6 In

5 The Supreme Court similarly held in Ashby Road Partners, LLC that "[t]he issuance of a summons is not authorized or anticipated by Rule 97" in lieu of issuan ce of a preliminary writ in a prohibition proceeding. 297 S.W.3d at 84. 6 This is in keeping with the fact that the procedures for writs (which seek extraordinary remedies) differ from the procedures in civil proceedings. Boresi , 396 S.W.3d at 359 n.1. Rule 94 provides that "[p]roceedings in mandamus in a circuit court shall be as pr escribed in this Rule 94." Rule 94.01. To seek a writ of mandamus from a circuit court, a relator must file a petition in mandamus cont aining "a statement of the facts, the relief sought, and a statement of the reasons why th e writ should issue," "accompanied by suggesti ons in support thereof." Rule 94.03. The petition must also be accompanied by all documents "essen tial to an understanding of the matters set forth in the petition." Id. These pleading requirements are design ed to afford the trial court with the information necessary to assess the preliminary merits of an extraordinary writ request. Rule 94.04 provides that "[i]f the court is of the opinion that the preliminary order in mandamus should be granted, such order shall be issued." If a preliminary or der is issued, Rule 94.05 provides that "[t]he preliminary order shall order the respondent to file an answer within the time fixed by the order," and "[t]he clerk shall . . .7 light of Boresi , we cannot discern a reasoned path that would permit this court to conclude that an appeal will lie as a matter of right merely and solely because a permanent writ is denied by a lower court on the merits. In stead, we conclude, as is already stated in Boresi , that an appeal will lie as a matter of right only where a permanent writ of mandamus is denied by a lo wer court on the merits after that court has issued a preliminary writ. 7 396 S.W.3d at 358. And if Rule 94 is not followed, then there is no right of appeal from the denial of a permanent writ of mandamus (even if on the merits), with the narrow proviso that an appeal may be permitted as a matter of discretion where a permanent writ of mandamus is denied on the merits after a trial court has issued a summons that can be fairly characterized as the "functional equiva lent" of a preliminary writ. 8 Id. at 359. Here, there was no summons issued by the trial court nor any grant of a preliminary order in mandamus. Rather, the pa rties and the trial court appear simply to

deliver a copy of the preliminary order, together with a copy of the petition, for service . . . . [which] may be made as provided in Rule 54." Rule 94.07 requires that "[t]he answer [ordered by Rule 94. 05] shall be directed to the petition in mandamus. . . . [and] may include or be accompanied by one or more motions." In short, unless a trial court grants a preliminary order in mandamus, Rule 94 does not authorize service of the petition in mandamus on the respondent. And unless a trial court grants a preliminary order in mandamus, Rule 94 does not authorize the trial court to order the respondent to file an answer to the petition in mandamus. 7 Following Boresi , there remains an open question about whether an appeal is available where a petition in mandamus is denied after the grant of a preliminary order in mandamus but on other grounds than the merits of the petition. "Although our research has not uncovered any Missouri Supreme Court cases addressing the issue, both this Court and the Eastern District have concluded that even when a preliminary order has issued, the final decision is still not reviewable by appeal if it does no t reach the merits of the relator's petition." Powell v. Dep't of Corr. , 463 S.W.3d 838, 841 n.3 (Mo. App. W.D. 2015) (citing Merell v. Dir. of Revenue , 82 S.W.3d 227, 230 (Mo. App. W.D. 2002); State ex rel. Stoecker v. Dir. of Revenue , 734 S.W.2d 263, 266 (Mo. App. E.D. 1987)). This open question is not implicated by the present appeal and is not addressed by our Opinion. 8 Powell holds that in the future, "it is highly unlikely that the Missouri Supreme Court will exercise its discretion to hear an appeal on the merits where a summons, rather than a preliminary order, was issued by the circuit court." 463 S.W.3d at 842. Powell thus declined to exercise discretion to treat a trial court issued summons as the functional equivalent of a preliminary order in mandamus, noting its perception that " Boresi [is] guidance that we generally should decline to exercise our discretion to hear appeals on the merits in writ proceedings where a summons rather than a preliminary order has been issued by the circuit court." Id
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