Section 65 Violation of Constitutional Provisions

• Library: Administrative Law 2011

Section 536.140.2(1), RSMo Supp. 2010, authorizes a reviewing court to determine in a contested case whether challenged agency action violates Missouri and federal constitutional provisions. Section 536.140.2(1) and (5) combine to authorize judicial review of constitutional issues arising from the procedural due process requirement of fair trials by fair tribunals applicable to administrative agencies acting in an adjudicative capacity. Orion Sec., Inc. v. Bd. of Police Comm’rs of Kansas City, Mo.,90 S.W.3d 157, 164 (Mo. App. W.D. 2002).

There are two basic types of constitutional challenges to administrative action:

1. Challenges to the facial constitutionality of a statute, rule, or ordinance

2. As-applied challenges

A successful facial constitutional challenge to legislation determines that the measure is unconstitutional per se, regardless of its application to a particular individual. SeeAsbury v. Lombardi,846 S.W.2d 196 (Mo. banc 1993) (§ 536.050.2, now RSMo Supp. 2010, facially invalid because it unconstitutionally delegated Article V “judicial power” to the AHC in violation of constitutional separation of powers). In contrast to a facial constitutional challenge, a successful as-applied challenge finds the agency statute, rule, ordinance, or action unconstitutional as applied to the challenging party. SeeColyer v. State Bd. of Registration for Healing Arts, 257 S.W.3d 139 (Mo.App. W.D. 2008) (denial of opportunity to cross-examine witnesses at a probable cause hearing finding a physician incompetent violated physician’s procedural due process rights).

Both facial and as-applied constitutional challenges to statutes, ordinances, and other administrative action can be pursued in a contested case review proceeding under § 536.140.2(1). SeeTGB, Inc. v. City of St. Louis Bd. of Bldg. Appeals,154 S.W.3d 353, 355 (Mo. App. E.D. 2004); Schwartz v. City of St. Louis,274 S.W.3d 509, 512 (Mo. App. E.D. 2008). To...