Chief Justice, concurring.
I agree that the case should be reversed and remanded for a new hearing, but I write separately to express my partial disagreement with the majority’s rationale. My concern is that the majority has misallocated to the Director of Revenue the “burden of producing evidence” that Kinzenbaw is not qualified for a driver’s license and improperly requires the Director to introduce the administrative record to meet that burden. In my view, this case should be resolved simply by holding that the only party with any burden of proof, whether couched as a burden of producing evidence or a burden of persuasion, is Kinzenbaw — the party contesting the suspension. Indeed, the majority acknowledges as much by stating that “Both sections [302.311 and 536.150] put the burden on the aggrieved driver to ‘appeal,’ (the term used in section 302.311) or bring ‘suit’ or ‘other appropriate action’ (section 536.150)[and] that the proceeding is ‘de novo’ would imply that the person bringing the action bears burdens similar to those borne by plaintiffs or petitioners in other civil actions.” Here, as in other civil actions, the burden of producing evidence should not shift to the Director until Kinzenbaw has made a prima facie case that he was entitled to relief. See Frank v. Wabash R.R., 295 S.W.2d 16, 22 (Mo.1956) (the burden of going forward with the evidence does not shift until a prima facie case is made, although the burden of proof remains with the party bearing the affirmative of the issue throughout.) See also Connaway v. Walters, 786 S.W.2d 913, 918 (Mo.App.1990); Hautly Cheese Co. v. Wine Brokers, Inc., 706 S.W.2d 920, 922 (Mo.App.1986).
*56I suppose that the majority, by requiring the Director to introduce the administrative record before Kinzenbaw makes a prima facie ease, is attempting to reconcile dicta in Wampler v. Director of Revenue, 48 S.W.3d 32, 35 (Mo. banc 2001), that “[t]he Director is required, as are proponents in other de novo civil cases, to put into evidence that which the fact finder is asked to consider.” To be sure, Wampler correctly decided that the Director must affirmatively introduce into evidence the record from the administrative proceedings when the Director is the “proponent” of the information contained in that record. But, the question of whether the Director is a “proponent” in such a civil case was not raised or addressed in Wampler, and the Court simply wrongly assumed that the Director carried the burden of proof/burden of producing evidence.
Here, Kinzenbaw’s burden of proof is necessarily determined by the elements of Kinzenbaw’s claim under the statute authorizing the appeal, section 302.311, RSMo 2000. There are only two elements to the claim: 1) that the Director suspended Kinzenbaw’s driver’s license, and 2) that the suspension was unlawful. Kinzen-baw must plead and prove these elements in the same way as in any other civil case. In fact, Kinzenbaw’s petition sets out specific allegations relating to each of the two elements (see Appendix A attached) and has tacitly committed himself to prove the allegations. Obviously, in order to prove that the suspension was unlawful, the record on which the suspension was based (usually the documentation of petitioner’s state or municipal convictions) must first be introduced. Only then does plaintiff have the point of reference to contest those parts of the record he contends are legally insufficient to support the suspension.
As a practical matter, Kinzenbaw should have no problem in proving the contents of the administrative record. After all, he alleges in the last paragraph of his petition that the records were made available to him by the Director. But, in fact, it is unnecessary for him to offer into evidence any affirmative proof of the record whatsoever because the records were attached to the answer filed by the Director and, as such, constitute a judicial admission of which the court can take judicial notice. See Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 715-16 (Mo.1969); Stroup v. Leipard, 981 S.W.2d 600, 604 (Mo.App.1998); Pool v. Lohman, 936 S.W.2d 195, 197 (Mo.App.1996). In effect, the Director, herself, has proved up the records, thus relieving Kinzenbaw of that requirement. Contrary to Kinzenbaw’s assertion that the Director’s answer “pleads and puts at issue the reasons for the suspension,” the answer takes the issue out of contention.
In sum, I would hold that Kinzenbaw, rather than the Director, had the burden of introducing the administrative record and that Kinzenbaw’s failure to do so in this case precluded the relief he sought. Because of the confusion in the law as a result of the dicta in the Wampler decision, I would remand the case for a new hearing to allow Kinzenbaw to meet his burden of proof.
*57 APPENDIX A
IN THE CIRCUIT COURT OF MORGAN COUNTY, MISSOURI
ASSOCIATE CIRCUIT JUDGE DIVISION
BRENT L. KINZENBAW, Petitioner vs. DIRECTOR OF REVENUE, STATE OF MISSOURI,Respondent.
CASE NO. CV1099-305AC
FILED DEC. 20,1999 MORGAN COUNTY CIRCUIT COURT ASSOCIATE & PROBATE DIVISION
PETITION TO REVIEW SUSPENSION OF DRIVER’S LICENSE
COMES NOW Plaintiff and for his cause of action informs the Court as follows:
1. Plaintiff is now and at all times hereafter concerned, has been a resident of the County of Morgan, the State of Missouri now residing at 31237 Highway 5, Gravois Mills, Missouri 65037.
2. Defendant, Director of Revenue is now and at all times hereafter concerned, has been the Director of Revenue for the Missouri Department of Revenue, State of Missouri with offices in the County of Cole, City of Jefferson, State of Missouri. The actions complained of herein have been taken by Defendant in his capacity as said Director of Revenue in the State of Missouri.
3. Defendant has notified Plaintiff that the Operator’s License previously issued by the Missouri Department of Revenue to Plaintiff, to wit: No. 478-88-6654 will be suspended for a period of ten years for the alleged reason that the Plaintiff has been convicted three or more times of driving while intoxicated.
4. The proposed revocation of Plaintiffs Operators License is improper and not supported by the record in that Plaintiff has not been convicted by a court of competent jurisdiction for a sufficient number of traffic offenses within the time required to warrant the imposition of the penalty points proposed by the Defendant.
5. The proposed action by the Defendant is improper and illegal in that there is no basis upon which the Defendant may assess penalty points against Plaintiff since the alleged convictions of Plaintiff do not, in fact constitute convictions for traffic offenses which would warrant or support the imposition of penalty points.
6. Records made available to the Defendant by the Department of Revenue reflect that the alleged convictions of Plaintiff are improper and without foundation and that no court of proper jurisdiction convicted Plaintiff for any of the offenses.
WHEREFORE, Plaintiff prays that the revocation of Plaintiffs Operator’s License aforesaid and his privilege to operate a motor vehicle within the State of Missouri be set aside and held for naught and that all records alleging to support the imposition of penalty points against the driving record of the Plaintiff be removed from such records by Defendant by order of this court.
Is/ Timothy R. Cisar TIMOTHY R. CISAR #31271 INGLISH & MONACO, P.C.
2140 BAGNELL DAM BLVD., SUITE 401
LAKE OZARK, MO 65049 573-964-6211
ATTORNEY FOR PETITIONER