Administrative Law

Daniel R.E. Jordan, Esquire

Sufficiency of the evidence does not address credibility determinations, and credibility determination did not shift burden of proof. State ex rel. Noranda Aluminum, Inc. v. Public Service Commission of State, No. 30865 (Mo. App. S.D., November 7, 2011), Burrell, P.J.

In action before agency, statutes place burden of proof on applicant, and require that commission findings stand on evidence of record. In setting return on equity, commission chose among methods proffered by experts. Agency found applicant’s witness more credible than intervenor’s witness, in part because intervenor’s witness did not refute testimony of applicant’s witness.

Held: Affirmed
. Determination as to whether sufficient evidence supported findings does not include review of agency credibility assessments, and credibility assessment did not shift burden of proof to intervenor. In weighing evidence, agency may believe or disbelieve all or part of conflicting expert’s substantial and competent evidence. Inferences reasonably drawn from the record do not constitute facts not in evidence and may support decision. Intervenor’s speculation does not overcome conclusions based on facts based on the record.

Civil rule does not apply to statutory action. Charles A. Harter vs. Missouri Public Service Commission, No. 73913, (Mo. App. W.D., December 6, 2011), Pfeiffer, P.J.

Statutes governing agency condition judicial review of agency decision on filing of a motion for rehearing with agency before decision’s effective date. Statutes also provide that agency sets effective date and that Monday filing was not timely. Agency set decision’s effective date on a Saturday, motion for rehearing was filed with agency on the following Monday, and agency ruled that such filing was untimely.

Held: Affirmed
. Constitutional provisions require that any agency decision is subject to judicial review. Statutes governing agency specifically prevail over general provisions of Administrative Procedure Act. Effective date was not so short as to violate constitution. Rule extending time for filings in circuit court does not apply to filing before agency. (See also summary under “Public Service Commission”- January 2012 Courts Bulletin).