Missouri Administrative Law

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5 issues in Administrative Law

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1. What type of admin. action is involved?
2. What are the plausible grounds for JR?
3. What is the scope of review?
4. Did agency use correct procedures?

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WHAT TYPE OF ADMIN. ACTION IS INVOLVED: Types of cases

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1. Uncontested cases
2. Contested cases
3. Rulemaking

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WHAT TYPE OF ADMIN. ACTION IS INVOLVED: What is a contested case?

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A proceeding before an agency where the rights, duties and privileges of a specific party are determined after a hearing as required by statute.

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WHAT TYPE OF ADMIN. ACTION IS INVOLVED: 4 minimum procedural safeguards required in contested cases

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1. Rt. to present evidence
2. Right to know of opposing party's evidence
3. Right to test and rebut opposing party's evidence
4. Decision must be based solely on evidence produced at hearing.

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WHAT TYPE OF ADMIN. ACTION IS INVOLVED: What is a non-contested case?

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No formal trial type proceedings. Affected only has those rights given by: (i) organic act, if any (ii) agency rules, if any (iii) procedural due process.

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WHAT TYPE OF ADMIN. ACTION IS INVOLVED: Rulemaking

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Agency's statement of general application that inmplements, interprets, or prescribes law or policy or describes the organization, procedure or practice.

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WHAT ARE THE PLAUSIBLE GROUNDS FOR JUDICIAL REVIEW? 4 ways for the court to set aside an agency action

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1. Constitutional review
2. Jurisdictional
3. Procedural
4. Merits

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WHAT ARE THE PROPER SCOPES OF REVIEW? Constitutional review

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Substituted judgment, no deference

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WHAT ARE THE PROPER SCOPES OF REVIEW? Jurisdictional review

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Substituted judgment, some deference

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WHAT ARE THE PROPER SCOPES OF REVIEW? Procedural review

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Substituted judgment, little or no deference

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WHAT ARE THE PROPER SCOPES OF REVIEW? Merits

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a. Contested case: substantial evidence test: Test is it reasonable in light of the whole record? Review of factual findings only

b. Uncontested case: substituted judgment, no deference

c. Rulemaking: abuse of discretion/deference

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WHAT ARE THE PROPER SCOPES OF REVIEW? Merits Residum rule

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Court must set aside a decision not based on COMPETENT and SUBSTANTIAL evidence.

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WHAT ARE THE PROPER SCOPES OF REVIEW? 4 components of the abuse of discretion standard?

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1. Did agency consider irrelevant factors?
2. Did agency fail to consider a relevant factor?
3. Did agency fail to explain an inconsistency?
4. Is agency's action unreasonable?

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WHAT ARE THE PROPER SCOPES OF REVIEW? Appeal of Judicial Review

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Contested case of rulemanking: Court of appeals reviews decision of agency not of circuit court

Uncontested cases: Court of appeals reviews decision of circuit court, because all fact finding occurs at circuit court since there was no hearing at agency

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DID THE AGENCY USE CORRECT PROCEDURES? Contested cases and Procedural due process: Separation of functions general rule:

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Those who investigate and prosecute should not act as judges or advisors in the decision making process.

MO Rule: Combination of functions is permissible, except Professional Licensing, Tax and Merit System Disputes.

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DID THE AGENCY USE CORRECT PROCEDURE? Contested cases. What is ex- parte communications?

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Prohibits any oral or written communication that is not on the public record, without reasonable prior notice to all parties.

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DID THE AGENCY USE CORRECT PROCEDURE? Prejudgment bias

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Disqualifies decision maker only for prejudgment of facts not for pre-formed opinions of law or policy. Bias if financial stake.

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DID THE AGENCY USE CORRECT PROCEDURE? Exception to prejudgment disqualification

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Rule of necessity: if no one else can make the decision

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DID THE AGENCY USE CORRECT PROCEDURE? Special disqualification rule

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Any person who conducts an initial hearing is barred from conducting a later admin. rehearing or appeal involving same parties or issue.

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DID THE AGENCY USE CORRECT PROCEDURE? Noncontested cases and Procedural Due process

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In General MOAPA does not mandate any particular form or proceeding or fact gathering in non-contested cases. Rights are those given by organic act, agency rule or PDP.

If no rights by those 3, then agency discretion.

PDP: Life, liberty or property

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DID THE AGENCY USE CORRECT PROCEDURE? What procedure is due?

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Balancing test:
1. Nature of private party at issue
2. Benefit of additional procedural safeguards
3. Government interest: fiscal and administrative.

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS :Petition for rule-making?

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Anyone can request rulemaking from an agency. Agency must submit copy of the petition to Joint Committee on Admin. Rules and to the Commissioner of Admon. and describe action taken or that plans to take and reasons.

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS Agency proposed rule-making

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Only where based on:
a. Substantial evidence on the record, and

b. Finding by agency that rule is needed to carry out the purposes of agency

c. Necessity determination is to be based on reasonably available empirical data and assessment of cost effectiveness

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS: Takings analysis

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Upon filing any proposed rule, agency must certify to Secretary of State that it has evaluated whether proposed rule constitutes a taking of private property for which compensation is required.

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS : Notice

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Filed with Sec. of State and published in MO Register, must specify 6 things:
1. Tim and place of filing of comments
b. Time and place for hearing if any
c. Legal authority under which rule proposed
d. Explanation of rule and reasons behind it
e. Text of entire rule
f. Fiscal notes estimated total cost of compliance

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS: Comments

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Usually written. If hearing granted, it is not adversarial but legislative type hearing.

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS: Time limits

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1. Min. 30 days for comment period and notice of hearing
b. Agency must promulgate or withdraw rles within 90 days after expiration of comment period (or within 90 days from hearing).

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS: Promulgation

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Order of Rule Making must:
a. Be published in MO register
b. Give text of any changes and reasons
c. Summary of general nature of comments received
d. New fiscal notes if modifications to proposed rule changes estimated cost of compliance by 10%.

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS : Effective date

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Not less than 30 days after its publication in the revision of the MO Code of State Regs.

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS: Emergency rules

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No need to follow notice and comment procedures if there is an IMMEDIATE DANGER to the health, safety and welfare. But it must be constitutional, narrowly drawn, file with Sec. of State

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DID THE AGENCY USE CORRECT PROCEDURE? RULE MAKING AND PROCEDURAL DUE PROCESS: Effect of enacted rule on judiciary

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1. Legislative rule: Agency enacted legislative rule is binding on courts.

2. Interpretative rule: courts substitute their judgment

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Subject matter jx/Statutory preclusion on judicial review

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Statutory preclusion not allowed. Power to make final decisions on questions of law is judicial. Under separation of powers, legislature cannot preclude judicial review.

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Standing, who is a proper plaintiff in a contested case?

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Contested cases:
1. Any person who has exhausted all admin. remedies
2. who is aggrieved by a final decision
3. even if not a participant in the admin. proceedings.

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Standing, who is a proper plaintiff in a non-contested case?

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1. Agency action must directly affect private rights of the party

2. P must have (i) legally cognizable interest in subject matter of petition (ii) decision has substantial impact on that interest

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Standing, what is the TRADITIONALLY WRONG test?

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Whether the alleged unlawful conduct would give rise to a cause of action founded either on common law or some statute. If so, P has standing to sue. Not anymore... standard is:

1. Injury in fact

2. Within zone of interests the legislature sought to protect

3. Redressability

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Taxpayer standing

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Unlike federal courts, taxpayer has standing in Missouri

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Association standing

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Members have standing and claim asserted requires participation of individual members.

But not in ZONING CASES, there, organization gotta own property to have standing.

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Immunity

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Sovereign immunity: immunity for damages, actions waived only for motor vehicles and public property.

2. Official immunity: Public officers acting within the scope of their authority not liable from their discretionary acts of ommissions but can be held liable when acting in a MINISTERIAL capacity

DISCRETIONARY vs. MINISTERIAL acts

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Procedures for review and venue, contested case

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Direct review, file petition w/circuit court within 30 days after final decision, venue is county of Ps residence, enforcement review? No, follow the order and seek review.

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Non-contested cases

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Venue is county where admon is located and principal duties performed

No general statutory deadline only within a reasonable time after getting decision. (6 mos. OK)

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Rule making

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Direct review of rules via action for declaratory judgment in circuit court.
Venue: Cole county or Ps residence
Enforcement review: violation will result in violation proceeding, invalidity of rule can be a defense.

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Stay of action

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Agency can stay action pending judicial review

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Timing of judicial review (3 issues)1. Prior resort doctrine

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Prior resort doctrine: Even if admin. agency and courts have concurrent jx, the parties may not choose forum. The specialized admin. tribunal has primary jx. so parties have to go their first, even if it later declines to hear matter.

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Timing on judicial review (3 issues) Exhaustion of admin. remedies

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Contested case: before seeking JR give agency a chance to CORRECT own mistakes. APPEAL TO HEAD OF AGENCY

Non-contested case: Exhaustion not a prerequisite

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Timing of judicial review, rule making

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IN a declaratory action challenging validity exhaustion not required if:
1. Agency couldn't provide adequate remedy
2. ONLY issues are questions of law
3. If requiring exhausting could cause irreparable injury

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? Timing of judicial review, exceptions to exhaustion requirement

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No need to exhaust if:
1. Clear that further proceedings useless
2. Agency organic act is challenge as unconstitutional on its fact
3. Only issue is constitutional challenge and no issues of fact
4. Agency violated explicit legislative limitation on agency jx and no issues of fact
5. Charitable org. challenges real prop. tax assessment on ground that they're exempt.

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? RIPENESS

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Even if agency decision is final, court may DELAY JR if they think it will improve the quality of judicial decision making.

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HAVE ALL CONDITIONS ON OBTAINING JUDICIAL REVIEW BEEN SATISFIED? RIPENESS, balancing test

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Courts decide ripeness questions by balancing:
1. Present fitness of the issues for judicial resolution

2. Against the hardship to the parties of delaying review.