Section 27 Briefs

• Library: Administrative Law 2011

The problem with briefs is not who writes them, but rather who reads them, i.e., what level of involvement by decision-makers is required.

Section 536.080, RSMo 2000, allows each party to present oral arguments or written briefs at or after the hearing. Each official who joins in rendering the final decision must hear or read the arguments or briefs. Section 536.080.2 reiterates the requirement that officials who join in the final decision must either:

hear all the evidence;

read the full record; or

personally consider portions of the record cited or referenced in the arguments or briefs.

Sometimes there are several layers of administrative proceedings. For example, in professional licensing, the AHC makes an initial determination whether cause for discipline exists, which (if cause is found to exist) is followed by a separate hearing before the licensing board to determine what discipline is appropriate. At the licensing board hearing, it is not necessary for the officials to read the entire record of the AHC case, but only to hear the evidence or read the record adduced at the disciplinary hearing before joining in rendering a decision on appropriate discipline. Dunning v. Bd. of Pharmacy, 630 S.W.2d 155 (Mo. App. E.D. 1982).

Two thorny issues arise in the context of § 536.080:

1. Officials who enter in the middle of the case

2. The use of hearing examiners

What are the requirements when an official enters in the middle of a case? Newly appointed officials may take part in the decision if they read the pertinent record. It is not necessary to hold a second hearing solely to allow a new commissioner to hear oral argument. Dittmeier v. Mo. Real Estate Comm’n, 316 S.W.2d 1 (Mo. banc 1958). In Schrewe v. Sanders, 498 S.W.2d 775 (Mo. 1973), a member of the board of police commissioners who did not hear oral argument concerning the patrolman’s conduct could participate in the decision to dismiss the patrolman when the board member had the benefit of the record before him.

Interestingly, the cases generally hold that an official who is
not present at the hearing may still rule on the credibility of witnesses. Webb v. Bd. of Police Comm’rs of Kansas City, 736 S.W.2d 451 (Mo. App. W.D. 1987). See §3.39 below for a more complete discussion of judging credibility.

What responsibilities arise when the agency uses a hearing...