            SUPREME COURT OF MISSOURI
                                      en banc

HEATH A. DUNIVAN,                        )
                                         )
                    Respondent,          )
                                         )
vs.                                      )     No. SC94641
                                         )
STATE OF MISSOURI and                    )
MISSOURI STATE HIGHWAY                   )
PATROL,                                  )
                                         )
                    Appellants.          )

          APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY
                    The Honorable Kenneth Hayden, Judge

                             Opinion issued July 21, 2015

      The Missouri Attorney General, the State of Missouri, and the Missouri State

Highway Patrol (hereinafter, “the MSHP”) appeal the circuit court’s judgment overruling

their motion to intervene in a sex offender registration matter filed by Heath A. Dunivan

(hereinafter, “Dunivan”) and the circuit court’s judgment removing Dunivan from the

Missouri sex offender registry. This Court holds the attorney general is permitted to

intervene as a matter of right pursuant to Rule 52.12(a)(1) because section 27.060, RSMo

2000, permits the attorney general to “appear and interplead, answer or defend, in any

proceeding or tribunal in which the state’s interests are involved.” This Court further

holds the MSHP is permitted to intervene as a matter of right pursuant to Rule
52.12(a)(2) because the MSHP has an interest relating to the subject of the action due to

its role in maintaining Missouri’s sex offender registry that is not represented adequately

by the local prosecuting attorney. The circuit court misapplied the law in overruling their

motion to intervene. The circuit court’s judgment is reversed, and the cause is remanded.

                            Factual and Procedural History

       On October 13, 1993, Dunivan pleaded guilty to one count of second-degree sex

abuse, section 566.110, RSMo 1993, which required Dunivan to register as a sex

offender. On March 29, 2012, Dunivan filed a petition in Laclede County circuit court to

be removed from Missouri’s sex offender registry and to be relieved from his obligation

to register as a sex offender.    Dunivan’s petition sought removal from the registry

pursuant to Missouri’s Sex Offender Registration Act, section 589.400.8, RSMo Supp.

2009. 1 Dunivan provided the Laclede County prosecuting attorney notice of his petition

pursuant to section 589.400.9. This statute does not require notice be sent to the attorney

general or the MSHP.

       On May 7, 2013, the circuit court held a hearing on Dunivan’s petition. The

Laclede County prosecuting attorney represented the state. Dunivan testified about the

allegations in his petition. The prosecuting attorney did not cross-examine Dunivan or

offer any argument in opposition to Dunivan’s petition.        The circuit court granted

Dunivan the relief he requested from the bench and subsequently entered a docket entry


1
 All statutory references to Missouri’s sex offender registration statutes cite RSMo Supp.
2009. All other statutory references are to RSMo 2000 unless otherwise indicated.
Dunivan did not request relief from registering under the federal Sex Offender
Registration and Notification Act, 42 U.S.C. §16901 et seq.
stating: “Court finds issues in favor of [Dunivan] and against [the state].” On May 20,

2013, the circuit court entered a written order that Dunivan be removed from the

Missouri sex offender registry and relieved from his obligation to register as a sex

offender. This order was not denominated a judgment nor was it directed at any party to

take action to remove Dunivan from the registry.

      On July 29, 2013, the attorney general and the MSHP received a copy of the

circuit court’s order.   On August 19, 2013, the attorney general filed a motion to

intervene as a matter of right pursuant to Rule 52.12(a) on behalf of itself and the MSHP,

seeking to set aside the circuit court’s order. In its motion to set aside, the attorney

general argued that Dunivan’s Missouri sex offender registration requirement was based

upon an independent federal registration requirement and, therefore, Dunivan could not

petition for removal from the Missouri sex offender registry pursuant to section 589.400.

      The circuit court overruled the motion to intervene. The attorney general filed a

notice of appeal with the Court of Appeals, Southern District. On February 25, 2014, the

court of appeals issued a show cause order directing the attorney general to demonstrate

why the intervention appeal should not be dismissed because the appeal was not taken

from a final, appealable judgment. On March 6, 2014, the circuit court issued a judgment

with respect to Dunivan’s request for removal from the registry. The attorney general

then sought an appeal from that final judgment. The court of appeals consolidated the

cases and affirmed the circuit court’s judgment overruling the attorney general’s motion

to intervene. The court of appeals did not reach the issue of whether the circuit court

erred in removing Dunivan from Missouri’s sex offender registry and relieving him of his

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obligation to register in the future. This Court granted transfer. Mo. Const. art. V, sec.

10.

                                   Standard of Review

       The circuit court’s judgment regarding intervention as a matter of right will be

affirmed unless there is no substantial evidence to support it, it is against the weight of

the evidence, or it erroneously declares or applies the law. Johnson v. State, 366 S.W.3d

11, 20 (Mo. banc 2012). Intervention generally should “be allowed with considerable

liberality.” Id. (quoting In re Liquidation of Prof’l Med. Ins. Co., 92 S.W.3d 775, 778

(Mo. banc 2003)).

                        Attorney General’s Intervention Claim

      The attorney general argues the circuit court erred in overruling its motion to

intervene as a matter of right because the circuit court misapplied Rule 52.12(a)(1). The

attorney general claims it has the unconditional statutory right to intervene pursuant to

section 27.060.

      Rule 52.12(a) governs intervention as a matter of right.            Rule 52.12(a)(1)

provides: “Upon timely application anyone shall be permitted to intervene in an action

… when a statute of this state confers an unconditional right to intervene ….” See also

section 507.090.1(1). Section 27.060 provides:

       The attorney general shall institute, in the name and on the behalf of the
       state, all civil suits and other proceedings at law or in equity requisite or
       necessary to protect the rights and interests of the state, and enforce any and
       all rights, interests or claims against any and all persons, firms or
       corporations in whatever court or jurisdiction such action may be


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       necessary; and he may also appear and interplead, answer or defend, in any
       proceeding or tribunal in which the state’s interests are involved.

Timeliness

       Dunivan maintains the attorney general’s arguments are of no avail because the

motion to intervene was not filed timely.         Dunivan contends the attorney general’s

motion was filed ninety-one days after the circuit court’s final judgment ordered him to

be removed from Missouri’s sex offender registry, and, therefore, the circuit court

properly overruled the motion to intervene.

       “[A]n application for leave to intervene subsequent to trial is unusual and seldom

granted.”    Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302, 304 (Mo. banc 1991).

“Intervention as contemplated by Rule 52.12 is intervention in a pending case.

Postjudgment intervention is granted only if substantial justice requires intervention.” Id.

(internal citations omitted) (emphasis in original). The circuit court maintains discretion

to determine whether a motion to intervene is filed timely. State ex rel. Strohm v. Bd. of

Zoning Adjustment of Kansas City, 869 S.W.2d 302, 304 (Mo. App. W.D. 1994).

       Dunivan’s timeliness challenge fails for two reasons. First, the circuit court’s

judgment was not final at the time the attorney general sought to intervene. The circuit

court must denominate its final ruling as a “judgment.” City of St. Louis v. Hughes, 950

S.W.2d 850, 853 (Mo. banc 1997). See also Rule 74.01. “The rule is an attempt to assist

the litigants and the appellate courts by clearly distinguishing between when orders and

rulings of the trial court are intended to be final and appealable and when the trial court

seeks to retain jurisdiction over the issue.” Id. Here, the circuit court issued a docket

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entry on May 7, 2013, and an order memorializing that docket entry on May 20, 2013.

The circuit court did not denominate its ruling as a judgment until March 6, 2014, several

months after the attorney general sought to intervene and only after the court of appeals

issued a show cause order to dismiss the appeal for lack of a final, appealable judgment.

       Second, section 27.060 expressly states the attorney general may appear in “any

proceeding or tribunal.” The statute does not contain any language restricting the time in

which the attorney general may appear and defend in an action when the state’s interest is

involved. This Court finds the attorney general’s motion to intervene before the circuit

court’s judgment became final was filed timely.

Unconditional Statutory Right to Intervene

       This Court must next determine whether a statute confers upon the attorney

general an unconditional right to intervene pursuant to Rule 52.12(a)(1). The attorney

general cites section 27.060, which provides the attorney general “may also appear and

interplead, answer or defend, in any proceeding or tribunal in which the state’s interests

are involved.”

       In State ex rel. Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122, 135-36 (Mo. banc

2000), this Court discussed the scope of the attorney general’s powers and duties. This

Court recognized the attorney general is the “only constitutional officer whose powers

and duties are not specifically provided for or limited by the constitution.” Id. at 136. In

the absence of specifically enumerated powers, this Court held the attorney general was

vested “with all of the powers of the attorney general at common law.” Id. While the

attorney general’s powers are broad, they are not limitless. Id. “As with other common-

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law precepts, the attorney general’s authority can be restricted by a statute enacted

specifically for the purpose of limiting his power.” Id.

       “The Missouri attorney general derives his power to represent the state from both

statutory and common law.” Clark Oil & Refining Corp. v. Ashcroft, 639 S.W.2d 594,

596 (Mo. banc 1982). Chapter 27, RSMo, sets forth the attorney general’s statutory

powers and duties. Two statutes govern the attorney general’s appearance in court

proceedings. Section 27.050 directs the attorney general to appear on the state’s behalf in

all appellate cases to which the state is a party. Section 27.060, the statute at issue here,

permits the attorney general to appear and interplead, answer or defend, in any

proceeding or tribunal in which the state’s interests are involved. The plain language of

this statute only limits the attorney general’s power to appear, defend, and interplead so

long as the state’s interests are involved. The state has an interest in a circuit court’s

judgment ordering the removal of a sex offender’s name from Missouri’s sex offender

registry. Kennedy v. State, 411 S.W.3d 873, 876-77 (Mo. App. S.D. 2013). Accordingly,

section 27.060 confers upon the attorney general the unconditional statutory right to

intervene in Dunivan’s action seeking to be removed from the Missouri sex offender

registry.

Adequate Representation by Prosecuting Attorney

       Dunivan did not address whether section 27.060 confers upon the attorney general

an unconditional right to intervene in any proceeding in which the state’s interests are

involved. Instead, Dunivan argues, because the state was already a party to the action,

the attorney general’s interest in the litigation was represented adequately by the Laclede

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County prosecuting attorney. Dunivan claims that permitting the attorney general to

intervene after the merits of the case have been decided adversely to the state gives the

state a second bite at the apple to obtain a favorable outcome.

       Rule 52.12(a) is written in the disjunctive. An applicant need only demonstrate it

is entitled to intervention as a matter of right in one of two instances: (1) when a statute

confers an unconditional right to intervene, or (2) when the applicant claims an interest

relating to the property or transaction that is the subject of the action and the disposition

of the action may as a practical matter impair or impede the person’s ability to protect

that interest, and that interest is not represented adequately by existing parties.

       Here, the attorney general demonstrated it is entitled to intervene as a matter of

right because section 27.060 confers an unconditional statutory right to intervene. This

demonstration alone is sufficient to overturn the circuit court’s ruling. However, this

Court recognizes the plain language of section 27.060 only limits the attorney general’s

involvement if the proceeding involves a state interest. The statute does not extinguish

the attorney general’s right to appear in a proceeding in which the state’s interests are

involved if the state is represented by a local prosecuting attorney. If the legislature

intended to limit the attorney general’s participation in that instance, it could have stated

as much in the statute. Hence, section 27.060 permits the attorney general to appear in a

proceeding when the state’s interests are involved, even if the state is represented by a

local prosecuting attorney.




                                               8
                                MSHP Intervention Claim

       The attorney general next argues the circuit court erred in overruling its motion to

intervene as a matter of right on behalf of the MSHP and the state. The attorney general

claims the circuit court misapplied Rule 52.12(a)(2) because the MSHP demonstrated it

had an absolute right to intervene.

       In the absence of a statute conferring an unconditional right to intervene, Rule

52.12(a)(2) requires an entity seeking to intervene as a matter of right to file a timely

motion and demonstrate: “(1) an interest relating to the property or transaction which is

the subject of the action; (2) that the applicant’s ability to protect the interest is impaired

or impeded; and (3) that the existing parties are inadequately representing the applicant’s

interest.” Am. Tobacco Co., Inc., 34 S.W.3d at 127. The MSHP carries the burden of

establishing the presence of all three of these elements. Id.

Timeliness

       Dunivan initially argues the MSHP’s motion to intervene was filed untimely.

Dunivan’s argument fails because, as stated previously, the circuit court’s order did not

constitute a final, appealable judgment at the time the MHSP sought to intervene. The

MSHP’s motion to intervene was filed timely.

Interest Relating to the Subject of the Action

       The MSHP claims it has an interest relating to the subject of the action because it

has an obligation to maintain Missouri’s sex offender registry pursuant to sections

589.407 and 589.410. Dunivan downplays the MSHP’s interest as ministerial because it

does not choose whom to place on the registry.

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       The MSHP is required by statute to maintain Missouri’s sex offender registry.

Section 589.407.1 directs that any person required to register as a sex offender must

complete an offender registration form developed by the MSHP.             Section 589.410

requires the MSHP to enter all of the information on that form into its registry. This

information is available upon request to members of the criminal justice system and other

entities as provided by law. Id. Section 589.414 requires the MSHP to process all

changes to the offender’s registration information. Should the offender change his or her

state of residence, this section requires the MSHP to inform the responsible official in the

new state of residence shortly thereafter. Id. Finally, and most pertinent to this appeal,

section 589.400.9(2) provides that if a court determines an offender is entitled to be

removed or is exempt from registering, the MSHP must comply with that court order by

removing or exempting the offender from the Missouri sex offender registry. 2

       In addition to its statutory interest and obligation in accurately maintaining

Missouri’s sex offender registry, the MSHP is a proper party to the appeal of the circuit

court’s judgment removing a sex offender from the registry because the state had an

interest in these matters. Kennedy, 411 S.W.3d at 877. See also Doe v. Toelke, 389

S.W.3d 165 (Mo. banc 2012) (adjudicating the MSHP’s appeal regarding retrospective

application of registry requirements to an offender).      Hence, the MSHP’s ability to

discharge its duties under Missouri’s sex offender registration statutes is implicated here.



2
  While the circuit court’s order determined that Dunivan should be removed from
Missouri’s sex offender registry, the order was not directed at any party to take action to
achieve this result, as noted by the Laclede County circuit clerk’s correspondence.
                                            10
The MSHP demonstrated it has an interest in Dunivan’s action seeking removal from

Missouri’s sex offender registry.

Impairment or Impediment to Protect Interest

       The MSHP argues that preventing it from intervening in Dunivan’s action will

impede it from discharging its responsibilities in maintaining Missouri’s sex offender

registry. If Dunivan has an independent obligation to register as a sex offender in

Missouri under federal law, then the circuit court’s order directing him to be removed

from Missouri’s sex offender registry leaves the MSHP in an uncertain position as to how

to proceed in discharging its duties. Thus, the MSHP has demonstrated an impairment or

impediment to protect its statutory interest in maintaining an accurate sex offender

registry.

Adequate Representation by Prosecuting Attorney

       Finally, the MSHP claims its interests were not represented adequately by the

Laclede County prosecuting attorney.       Dunivan disagrees, claiming the prosecuting

attorney adequately represented MSHP’s interests by issuing witness subpoenas,

appearing and representing the state at the hearing, and contacting the victim to inquire if

she wished to attend the proceedings. While the prosecuting attorney performed these

tasks, she did not offer any evidence or argument concerning Dunivan’s independent

obligation to register in Missouri under federal law. The MSHP maintains it would have

apprised the circuit court of the interplay between the Missouri and federal sex offender

registration requirements, which the circuit court did not take into account when



                                            11
rendering its decision.    Accordingly, the MSHP’s interests were not represented

adequately below.

      The MSHP has carried its burden of establishing the presence of all three of these

elements under Rule 52.12(a)(2). “When an applicant satisfies these elements … the

right to intervene is absolute and the motion to intervene may not be denied.” Am.

Tobacco Co., Inc., 34 S.W.3d at 127. The circuit court erred in overruling the MSHP’s

motion to intervene.

                 Dunivan’s Sex Offender Registration Requirement

      Finally, the attorney general argues the circuit court erred in sustaining Dunivan’s

request for removal from Missouri’s sex offender registry because the circuit court

misapplied Missouri law and failed to apply federal law. The attorney general contends

Dunivan has an independent obligation to register in Missouri under federal law and,

therefore, cannot be removed from Missouri’s sex offender registry. Dunivan counters

that the attorney general is foreclosed from contesting the merits of the circuit court’s

judgment because it did not raise the issue below. This Court need not address this claim

in light of the holding that the attorney general and the MSHP have an absolute right to

intervene in the matter on remand.




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                                          Conclusion

      The circuit court erred in overruling the attorney general’s motion to intervene as a

matter of right on behalf of itself, the state, and the MSHP. The circuit court’s judgment

is reversed, and the cause is remanded.


                                                   ______________________________
                                                   GEORGE W. DRAPER III, JUDGE

All concur.




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