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MISSOURI LAW CENTER KENT L. BROWN, P.C.

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Introduction to Administrative Law

 

 

Chapter One of the MoBar Administrative Law CLE Deskbook

By: Kent L. Brown*

 

Chapter 1

Introduction

This third edition of the Administrative Law CLE Deskbook was prepared by the members of the Administrative Law Committee of the Missouri Bar in furtherance of the Committee's commitment to improving the quality of the practice of administrative law through education of the members of the Bar.

During the ten years since the publication of the second edition of this deskbook, administrative law has seen an unprecedented expansion in both its scope and complexity. Almost any dispute between a citizen and city, county or state government implicates administrative law principles. Short deadlines, unpublished rules, confusing statutes and conflicts between controlling statutes often obscure the basic rules of the game. Practitioners must take special care to identify and understand the controlling statutes and rules before developing a litigation plan. Often time will be of the essence because deadlines of 30 days or less are the rule rather than the exception.

Words of advice to those entering the practice area for the first time:

  1. Decide whether you are involved in a contested case or a non-contested case. See Chapter 3.
  2. Identify all applicable deadlines. See Chapters 3, 4, 8 and the chapters dealing with your subject matter or agency.
  3. Determine whether the hearing you are facing will be your last opportunity to offer evidence into the record. See Chapters 3, 4 and other chapters governing your subject matter or agency.
  4. Determine whether the hearing officer is the actual decision maker or is merely preparing a record for the decision maker to review. See chapters relating to specific agencies.
  5. Determine whether the agency has promulgated any relevant procedural or substantive rules. See Chapter 2 regarding the promulgation process, agency-specific chapters and the Code of State Regulations published by the Secretary of State's Office.
  6. Determine whether your case is appropriate for an award for attorney's fees and, if so, develop the record accordingly. See Chapter 8.
  7. Determine whether you are entitled to discovery pursuant to statute or agency rule and, if not, make use of the Sunshine Law where applicable. See Statutes 536.070 through 536.077 and agency-specific chapters.
  8. Determine what evidentiary rules apply and who has the burden of proof. See Chapter 5.

In addition to the substantive updates contained in this third edition deskbook, the book has been reorganized and expanded. Chapters dealing with subjects broadly applicable to all administrative proceedings appear early in the book. Chapters dealing with specific agencies or specific areas of the law appear later in the book.

Chapters 2 through 8 deal with issues which will be relevant to virtually every administrative proceeding. These chapters focus on basic administrative agency functions such as rule-making and hearings. Judicial review, evidentiary issues and the burden of proof are examined in depth. The rules regarding practice and procedures before the Administrative Hearing Commission are reviewed. Methods of immediately challenging an agency's proposed action are examined in the chapter dealing with extraordinary writs. The private litigant's right to attorney's fees is analyzed.

Beginning with Chapter 9, the book begins to focus on specific issues and agencies. One of the most difficult tasks facing the practitioner is identifying all the controlling legal principles which may impact a case. These chapters are very useful in identifying and evaluating the impact of controlling deadlines and substantive law. These chapters also contain practical advice and counsel from experienced administrative law practitioners to aid those unfamiliar with administrative law principles.

Because administrative law is not a common law arena, it is essential that the practitioner identify as early as possible all controlling legal provisions. Chapter 536 RSMo. contains general statutes governing rule-making, administrative agency contested case procedure and judicial review. Chapter 536 is a good place to start identifying controlling law, but it by no means represents a collection of all governing statutes nor even a road map to finding those statutes. After reviewing Chapter 536, the practitioner should attempt to identify any specific statutes which may govern the specific issue under consideration. The organic statutes setting up the various agencies will often contain such direction. The agency itself can also serve as a useful source in identifying controlling legal provisions. Each state agency is required to publish rules and regulations in the Code of State Regulations which is available from the Secretary of State's office. It is often helpful to make a specific request under the Sunshine Law (see Chapter 9) asking that the agency identify and produce all relevant non-published rules, policies and procedures. A simple phone call to the general counsel's office of the state agency is another means of ensuring all applicable administrative rules and procedures have been identified.

Accurate classification of the case is absolutely essential but often very difficult. Chapter 2 examines in depth issues regarding case classification and the implications of misclassifying the case. For example, due process requires agencies to conduct a hearing before depriving citizens of substantial rights. Section 536.010(2) RSMo. 1994 defines contested case as "... a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing." An agency is "... any administrative officer or body existing under the constitution or by law and authorized by law or the constitution to make rules or to adjudicate contested cases." Section 536.010(1) RSMo. 1994. In such cases, due process requires a hearing but Sections 536.063 through 536.095 control the procedural aspects of that hearing.

Once an agency renders its decision in a contested case, Sections 536.100 through 536.140 RSMo. control the right of judicial review and impose an absolutely inflexible 30-day deadline for seeking review and a special venue provision which is jurisdictional in nature. If a case is a non-contested case, however, there are no statutes prescribing the procedures to be followed during the hearing and there is no express deadline for seeking judicial review. See Section 536.150 RSMo. 1994.

Administrative practice before state agencies based in Jefferson City has become much less confusing over the past decade, but practice before administrative agencies such as school districts, city and county zoning boards, and other local political subdivisions remains a treacherous morass replete with procedural pitfalls for the unwary. Practitioners must be careful to discover and adhere precisely to every required procedure and established deadline.

Two examples will illustrate the dilemma. A bus driver with a two-year contract is terminated by a school district without a hearing. Sixty days after receiving notice of his termination for misconduct, he sues for breach of contract. The court may rule that the driver's termination was a contested case because the school district was required by due process to give the driver a hearing before terminating him for cause. Since the driver did not seek judicial review within the 30-day deadline, he may have failed to exhaust his administrative remedies and as a consequence lost his right to bring a breach of contract action. The agency's failure to hold a contested case hearing and issue the required written decision would have resulted in a reversal of the action upon a petition for judicial review, but since no such petition was prosecuted, the administrative determination stands. The resolution of this case is not yet clear but the prudent practitioner will act promptly to avoid having to litigate the outcome.

Second example: Plaintiff seeks judicial review of a contested case decision issued by a city located in Greene County. Plaintiff lives in Lawrence County. Following the general venue statutes, defendant sues for review in Greene County. Case dismissed because Statute 536.100.3 RSMo. 1994 establishes venue for judicial review in the Circuit Court of Cole County or the county in which plaintiff resides. Motion to transfer the case to the Circuit Court of Lawrence County denied because the venue requirement is jurisdictional and the 30-day deadline for seeking judicial review has passed. The case is time-barred.

As these two hypothetical cases illustrate, the reach of administrative law is ever expanding and its rules of practice can be unforgiving. When confronted with a potential administrative law issue, the responsible practitioner should immediately identify all relevant constitutional, statutory, rule and common law provisions and review them to determine any applicable deadlines or procedural requirements. This deskbook was designed with that daunting task in mind.

One final caution. The writers of each chapter have tried to organize the text into meaningful subdivisions. If a writer refers to another section of that chapter or another chapter, take special care to examine how those indicated sections apply to the specific case under consideration. As the above examples illustrate, what one statute give another may take away.

It is a good idea to re-read the controlling law at the beginning of each case. When reading those statutes and rules, it is essential to give them the board interpretation which the court have given. During the past decade, the Missouri Supreme Court has made absolutely clear that virtually every public and quasi-public entity which exercises and governmental power is potentially an agency as that term is defined in Section 536.010(1) RSMo. 1994. As a consequence, virtually every city, county, school district, water district, fire district and any other public body has the power to promulgate rules with the force and effect of law and sit as the finder of fact in contested cases subject to very limited review by the courts. As a consequence, it is essential that any practitioner involved in such proceedings identify all controlling law immediately upon entry into the case and develop a litigation plan which recognizes the strict requirements and jurisdictional deadlines which are present in virtually every administrative proceeding.


* Mr. Brown received his B.S.E. in 1982 from Southwest Missouri State University in Springfield and a J.D. in 1991 from the University of Missouri - Columbia. He is a shareholder in Carson & Coil, P.C., a 19-member firm located in Jefferson City, Missouri. For the past three years he has served as chair of the Administrative Law Committee of the Missouri Bar. ur content here