Chapter 7 Other Actions

• Library: Missouri Professional Licensing (2018 Ed.)

Chapter 7

Other Actions

A. Declaratory Judgments

B. Applicability of Professional Licensing Laws in Other Civil Cases

A. Declaratory Judgments

Section 536.050, RSMo 2016, provides for specific declaratory judgment power respecting the validity of rules or threatened applications. The venue is at the option of the plaintiff either in the Circuit Court of Cole County or in the county of the plaintiff’s residence. Section 536.050.1.

As discussed in Chapter 4.C above, the AHC (Administrative Hearing Commission) does not hear and decide constitutional issues or enter declaratory judgments. State Tax Comm’n v. Admin. Hearing Comm’n, 641 S.W.2d 69 (Mo. banc 1982) (the AHC is not entitled to render declaratory judgments concerning the validity of rules and whether a rule is unconstitutional; the portion of § 536.050.2 that would appear to lend authority to the AHC to so determine is unconstitutional).

Declaratory judgments have been used to try to avoid the AHC process, but the doctrine of exhaustion of administrative remedies has defeated these attempts. Schierding v. Mo. Dental Bd., 705 S.W.2d 484 (Mo. App. E.D. 1985). Exhaustion of administrative remedies is a prerequisite to bringing a declaratory judgment action. See Lichtor v. Missouri Board of Registration for Healing Arts, 884 S.W.2d 49 (Mo. App. W.D. 1994), in which the court upheld a dismissal when a physician in the middle of a competency proceeding before the Board filed a preliminary injunction and declaratory judgment but failed to exhaust the administrative remedies of completing the competency proceeding. Once a matter is filed in the AHC, the doctrine of exhaustion applies, even if constitutional issues are raised. State ex rel. Mo. State Bd. of Registration for Healing Arts v. Hartenbach, 768 S.W.2d 657 (Mo. App. E.D. 1989). This allows constitutional issues to be heard against a factual context. Id. at 659.

Declaratory judgments filed in circuit court before a complaint is filed in the AHC have been found to be proper. Courts have allowed what has been characterized as a race to the courthouse. See Group Health Plan, Inc. v. State Board of Registration for Healing Arts, 787 S.W.2d 745, 748 (Mo. App. E.D. 1990), in which a declaratory judgment action was filed in the circuit court before any complaints were filed in the AHC. Group Health also raised an interesting standing issue with respect to a declaratory judgment action. Although the State Board of Registration for the Healing Arts was primarily involved, the nurses and pharmacists had standing in the declaratory judgment action because the Board also had the ability to question professional duties under its injunctive authority. Injunctions could be brought against persons practicing medicine without a license. Id. at 749–50. In contrast, the health maintenance organization lacked standing.

Section 536.053, RSMo 2016, provides standing to “[a]ny person who is or may be aggrieved by any rule.” Section 536.050 provides additional standing for the General Assembly or its designee (Joint Committee on Administrative Rules). So if a matter involves the way a rule is...