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O'Brien v. Department of Public Safety

Supreme Court of Missouri, En Banc

December 10, 2019

JUSTIN D. O'BRIEN, Appellant,
v.
DEPARTMENT OF PUBLIC SAFETY, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF CLINTON COUNTY The Honorable R. Brent Elliott, Judge

          Paul C. Wilson, Judge

         Justin O'Brien ("O'Brien") appeals the circuit court's judgment affirming the decision of the Administrative Hearing Commission ("AHC"), which found cause to discipline his license as a peace officer, and the subsequent order of the Missouri Director of the Department of Public Safety ("Director"), which permanently revoked his license. O'Brien asserts two challenges: (1) that section 590.080, [1] under which the AHC may find that cause for discipline exists if the licensee has "committed any criminal offense, whether or not a criminal charge has been filed" is invalid because it violates principles of separation of powers embodied in article II, section 1 of the Missouri Constitution; and (2) that Director's order revoking his license is not supported by competent and substantial evidence. This Court has exclusive appellate jurisdiction under article V, section 3 because the case involves the constitutional validity of a statute. The judgment is affirmed.

         Background

         On September 26, 2013, O'Brien, a licensed peace officer, engaged in an argument and physical altercation with his wife (from whom he now is divorced) because he believed she was having an affair. O'Brien pushed her into a wall, onto a sofa and down to the floor. He choked her and caused her to feel threatened and in danger of physical injury. At times during the fight, O'Brien's wife's four-year-old child was present. The fight ended only after O'Brien's wife sent the child to the basement to wake the wife's brother. O'Brien's wife sustained bruising and soreness as a result of O'Brien's actions. On June 3, 2014, O'Brien pleaded guilty to peace disturbance in violation of section 574.010, RSMo 2000. The imposition of sentence was suspended, and O'Brien successfully completed his probation.

         Thereafter, Director sought to discipline O'Brien's license as a peace officer. The disciplinary procedure for peace officers is set forth in section 590.080, which provides:

2. When the director has knowledge of cause to discipline a peace officer license pursuant to this section, the director may cause a complaint to be filed with the administrative hearing commission, which shall conduct a hearing to determine whether the director has cause for discipline, and which shall issue findings of fact and conclusions of law on the matter. The administrative hearing commission shall not consider the relative severity of the cause for discipline or any rehabilitation of the licensee or otherwise impinge upon the discretion of the director to determine appropriate discipline when cause exists pursuant to this section.
3. Upon a finding by the administrative hearing commission that cause to discipline exists, the director shall, within thirty days, hold a hearing to determine the form of discipline to be imposed and thereafter shall probate, suspend, or permanently revoke the license at issue. If the licensee fails to appear at the director's hearing, this shall constitute a waiver of the right to such hearing.

§ 590.080.2-.3.

         Following this procedure, Director (having knowledge of cause to discipline O'Brien's license under section 590.080.1) caused a complaint to be filed with the AHC. The AHC held a hearing and issued findings and conclusions stating there was cause for discipline pursuant to section 590.080.1(2)[2] because O'Brien committed two criminal offenses, i.e., peace disturbance in violation of section 574.010, RSMo 2000, and domestic assault in the third degree in violation of section 565.074. The AHC did not consider "the relative severity of the cause for discipline or any rehabilitation of the licensee" because section 590.080.2 makes it plain that the determination of the appropriate discipline is a matter solely within Director's discretion.

         Following the AHC's decision that there was cause to discipline O'Brien's license, Director held the disciplinary hearing required by section 590.080.3. O'Brien testified regarding his military service, which included two tours in Iraq, his experience as a peace officer, his current employment as a police dispatcher, and mental health treatment he underwent for post-traumatic stress disorder. The police chief in Trimble testified that O'Brien had been commissioned as a reserve officer there, that the chief intended to make him a full-time officer, and that he had no questions concerning O'Brien's values, morals, or integrity. A 14-year police veteran and O'Brien's former supervisor testified positively regarding O'Brien's character and said the circumstances that led to the disciplinary proceedings were not typical of O'Brien and he had no concerns with O'Brien remaining a peace officer. Following the hearing, Director issued an order permanently revoking O'Brien's license as a peace officer pursuant to section 590.080.3.

         O'Brien timely filed a Petition for Judicial Review in the Clinton County circuit court. The circuit court affirmed the AHC's decision and Director's order, and O'Brien now appeals that judgment.

         Analysis

         I. Separation of Powers

         O'Brien claims section 590.080.2 is unconstitutional because it violates the principles of separation of powers set forth in article II, section 1of the Missouri Constitution[3] in that this statute permits the AHC - rather than a court - to determine whether a peace officer has "committed [a] criminal offense" and, therefore, whether there is cause to discipline the officer's license. Because O'Brien's claim fundamentally misconstrues the nature of the AHC's finding, this claim is rejected and the judgment of the circuit court is affirmed.[4]

         "Constitutional challenges to a statute are reviewed de novo." St. Louis Cnty. v. Prestige Travel, Inc., 344 S.W.3d 708, 712 (Mo. banc 2011) (quotation marks omitted). "An act of the legislature carries a strong presumption of constitutionality." Id. (quotation marks omitted). "The person challenging the validity of the statute has the burden of proving the act clearly and undoubtedly violates the constitution." Id. (quotation marks omitted).

         O'Brien argues section 590.080.1(2) violates the separation of powers provision because it authorizes an executive branch agency (i.e., the AHC) to determine whether a peace officer has "committed any criminal offense," which O'Brien contends is a determination only courts can make. The fatal flaw in this argument, however, is that it misperceives the nature of the AHC's role under that statute. Under section 590.080.1(2), the AHC is authorized only to make a particular factual determination, i.e., whether a peace officer has engaged in conduct that Missouri statutes identify as a criminal offense. It cannot convict the officer of that offense, nor can it subject the officer to the criminal punishments applicable to that offense. Only courts can do these things. Nothing in section 590.080.1(2) authorizes the AHC to intrude upon the exclusive province of the courts. Accordingly, nothing in section 590.080.1(2) violates the separation of powers provision.

         There is nothing particularly novel in this distinction. In Younge v. State Board of Registration for Healing Arts, 451 S.W.2d 346, 348-49 (Mo. 1969), this Court rejected a licensee's argument that state and federal protections against double jeopardy would not permit the Board to discipline his license for conduct that also had been the basis of a criminal charge on which he was acquitted by a jury. The Court noted the purpose of the statute authorizing revocation of the physician's license, like all licensing statutes, was to protect the public by safeguarding public health, not to impose punishment on the physician. Id. at 349. Specifically, when rejecting the double jeopardy claim, the Court held: "These revocation proceedings are not penal, they are not 'quasi-criminal,' they do not contemplate 'punitive' ...


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