Section 40 Conflict With Statute and Constitutionality

• Library: Administrative Law 2011

Rules that conflict with statutory provisions are without legal effect. Section 536.014(2), RSMo 2000. Generally stated, state agencies are required to disregard their promulgated rules if the rules are “plainly inconsistent with the statute.” See Gehrs v. Dir. of Revenue, 965 S.W.2d 360, 362 (Mo. App. E.D. 1998); see also United States v. Eddy Bros., Inc., 291 F.2d 529 (8^th Cir. 1961); Ketring v. Sturges, 372 S.W.2d 104, 110 (Mo. 1963) (rules of optometry board). This is true even though they may have been in existence for a long time. State ex rel. Springfield Warehouse & Transfer Co. v. Pub. Serv. Comm’n, 225 S.W.2d 792 (Mo. App. W.D. 1949). Johnson v. Labor & Industrial Relations Commission,
591 S.W.2d 241 (Mo. App. W.D. 1979), may be cited for the same proposition. In that case, the employment security law required notice of a deputy’s determination to be delivered to a claimant, but it did not specify the method of delivery. The Labor and Industrial Relations Commission provided by rule that delivery would be by mail. The court upheld the claimant’s contention that the general notice statute requiring personal service applied, concluding that, because the statute and the rule conflicted, the rule should fall. See also Bell v. Mo. State Div. of Family Servs.,
597 S.W.2d 699, 702 (Mo. App. W.D. 1980).

The General Assembly has sought to codify this aspect and others in § 536.014 by stating that “[n]o department, agency, commission or board rule shall be valid in the event that . . . [t]he rule is in conflict with state law . . . .” See §§2.12 and 2.38, supra.

Questions about the constitutionality or alleged unconstitutional application of an administrative rule should be brought to the agency’s attention when the agency is proposing a rule or change; the agency may be persuaded to remove the offending provisions.

Counsel facing the undesired imposition of a...