Administrative Law

Daniel R.E. Jordan, Esquire

Expert testimony and recitations on credibility are unnecessary. Stone v. Missouri Department of Health & Senior Services, 350 S.W.3d 14 (Mo. banc, July 19, 2011), Breckenridge, J.

In action placing mental health worker on employment disqualification list, notice of charges did not cite provision cited in decision. Statute provides that expert testimony is admissible to help trier of fact with issues beyond layperson’s understanding, but no expert testified as to whether a mental health patient was distressed.

 Missouri Constitution and statutes provide for notice and judicial review. Judicial review examines the whole record and not just evidence favoring decision. Decision did not rely on un-cited provision, so notice was not insufficient. Findings of fact imply underlying credibility determinations. No expert was necessary to find that worker acted knowingly rather than reflexively or that patient was distressed.

Canons of Judicial Conduct don’t apply to agency. Tribunal may refuse offer of proof under statutes, but not under constitutions. State ex rel. Praxair, Inc. v. Missouri Public Service Commission, 344 S.W.3d 178 (Mo. banc, August 30, 2011), rehearing denied.

In action before agency, one party filed motion to dismiss, citing Canons of Judicial Conduct, and alleging pre-filing conferences between party and decision-makers. Another party offered evidence that the tribunal rejected as wholly irrelevant, repetitious, privileged, or unduly long.

Held:  Affirmed.
Canons of judicial ethics apply only to judicial officials, not to executive officials, even when executive officials exercise judicial function. Due process of law requires an unbiased decision-maker but appellant showed no bias. Statutes allowed tribunal to reject offer of proof made during testimony, but constitutional provisions require tribunal to retain every written offer of proof for judicial review. No prejudice resulted because the evidence offered was not substantial.

Trial court misapplied the law by declaring regulation unconstitutional based on purely hypothetical factual scenarios. Turner v. Missouri Department of Conservation, 349 S.W.3d 434 (Mo. App. S.D., August 12, 2011), rehearing denied, transfer denied (October 25, 2011).

Respondents brought challenge to constitutionality of regulations for vagueness and overbreadth under declaratory judgment statutes. Circuit court declared regulation unconstitutional, including overbreadth, on allegations of no specific facts.

: Reversed. Court of appeals has jurisdiction to hear an appeal from a judgment on the constitutionality of regulation. Statute providing declaratory judgment specifically on regulations incorporates general statute on declaratory judgment. Statutes do not provide an action on hypothetical facts and require either attempted enforcement, or facts otherwise developed enough to show a present dispute, or a showing that vagueness permeates the regulation on its face. Pendency of another action suitable for challenging regulation bars declaratory judgment action. Overbreadth doctrine applies only to infringement on First Amendment rights.

Statute on expert testimony determines admissibility but not credibility. Elmore v. Missouri State Treasurer as custodian of Second Injury Fund, 345 S.W.3d 361 (Mo. App. S.D., October 4, 2011), transfer denied.

Statute prescribing foundation for admitting expert testimony applies to contested cases. Tribunal admitted expert’s testimony but record does not include original report on which expert based his testimony.

Held: Affirmed
. Statute does not determine credibility as a matter of law. It only determines admissibility. Once admitted, evidence is subject to tribunals’ credibility assessment, to which the court of appeals defers.

Prosecutor and judge functions sufficiently separate. Turner v. Copley, 351 S.W.3d 49 (Mo. App. W.D., November 1, 2011), rehearing and/or transfer denied.

Appellant tried case against agency before tribunal. Agency and tribunal were both staffed by employees of same office. On appeal, appellant charged bias in the tribunal.

Held: Affirmed.
Constitution protects the right to a decision-maker without bias, but bias is neither proven nor necessarily at risk in the mere combination of functions in one agency. Where separate agencies are staffed by one office, but different personnel, the result is the same.