The Honorable Greg Kays, Judge
As required by section 454.496, the Division filed a motion to modify in the Circuit Court of Laclede County following the hearing officer's decision. The father filed a petition for judicial review in the same court, seeking both judicial review of the administrative order and challenging the constitutionality of section 454.496. The trial court declared the statute in violation of article II, section 1; article V, section 5; and article V, section 18, of the Missouri Constitution. The Division appealed. As this case involves the validity of a statute, we have jurisdiction.(FN4)
an administrative order modifying a court order is not effective until the administrative order is filed with and approved by the court that entered the court order. The court may approve the administrative order if no party affected by the decision has filed a petition for judicial review pursuant to sections 536.100 to 536.140, RSMo. The court shall determine if the administrative order complies with the provisions of supreme court rule 88.01. If it so determines, the court shall make a written finding on the record that the order complies with the provisions of supreme court rule 88.01 and approve the order. If upon review the court finds that the administrative order should not be approved, the court shall set the matter for trial de novo. If no action is taken by the court within forty-five days of the filing the administrative order with the court, and no petition for judicial review has been filed ... the court shall be deemed to have made a written finding that the administrative order complies with the provisions of supreme court rule 88.01 and to have approved the administrative order.(FN8)
Where a petition for judicial review is filed, the court must set the matter for trial de novo if the court finds the administrative order should not be approved. If, however, the court determines the petition for review lacks merit and the administrative order complies with Rule 88.01, the court must approve the order.(FN9)
Article II, section 1, provides:
The powers of government shall be divided into three distinct departments -- the legislative, executive and judicial -- each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.
This language does not erect an impenetrable wall of separation between the departments of government.(FN10) Of necessity, there is some overlap between the function of the three departments in the modern administrative state.(FN11) Article II, section 1, does, however, proscribe the exercise of powers or duties constitutionally assigned to one department by either of the other two.
Article V, section 5, authorizes this Court to establish rules "relating to practice, procedure and pleading which shall have the force and effect of law." The constitution does not make this power the exclusive province of the judiciary. The legislature may amend or annul this Court's procedural rules, but may do so only "by a law limited to the purpose."(FN12) No such limited law is at issue in this case.
Article V, section 18, acknowledges that administrative bodies may render final decisions "which are judicial or quasi-judicial."(FN13) But final administrative decisions "shall be subject to direct review by the courts as provided by law.... [R]eview under this section shall be ... in such manner ... as the supreme court by rule shall direct...."(FN14) This power to review decisions of separate departments of government -- judicial review -- is an exclusive power of the judiciary.(FN15)
The father reads these constitutional provisions together to conclude that modification of a court order by an administrative agency pursuant to section 454.496 allows the Division to go beyond performing judicial functions to performing powers constitutionally reserved to the judiciary. In the father's mind, the authority of the Division to institute a process that leads to modification of a judicial order is tantamount to an exercise of judicial review.
First, section 454.496 does not permit the Division to review the trial court's order. Instead, the statute permits the Division to initiate the process that results in modification of the original child support order only if there is a material change in the factual circumstances that formed the basis for the trial court's order.(FN17) The Division considers a claim that circumstances have changed and that these new facts remove the current level of child support from conformity with Rule 88.01. This is not judicial review. It is an initial assessment of the current compliance of the child support payment levels with Rule 88.01.
Second, the statute offers the Division no authority to enforce its judgment. Section 454.496.6 expressly states that any orders issued by the Division are not effective unless the orders are approved by the judicial department.
We conclude that section 454.496 does not vest the Division with powers reserved exclusively by the constitution to the judicial department.
While a party aggrieved by an administrative order may choose to forego judicial review under ordinary circumstances, section 454.496.6 makes judicial review of the Division's orders a condition precedent to the Division's orders taking effect. Judicial review of the Division's order is mandatory under this statutory scheme.
The "quintessential element" of judicial review is the power to make final decisions as to questions of law.(FN18) Judicial review cannot be conducted by default or assumption. It requires active judicial consideration of the propriety of the actions and decisions of other departments of government. Where a statute makes judicial review mandatory, it cannot also erect a default procedure that assumes judicial approval by the mere passage of time. We hold, therefore, that the default judicial approval provisions of section 454.496.6 violate article V, section 18 of the Missouri Constitution.
This conclusion does not necessarily render the entirety of section 454.496 unconstitutional. This is because
[t]he provisions of every statute are severable. If any provision of a statute is found ... to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.(FN19)
On review, we do not believe that the forty-five day default approval provision is essential to the review and modification scheme established in section 454.496. Nor do the remaining provisions of the statute depend for their effectiveness on the validity of the forty-five day rule.
We hold, therefore, that the default review provisions of section 495.496.6, while unconstitutional, are severable and that the remaining portions of the statute may stand.
further proceedings consistent with this opinion.
EDWARD D. ROBERTSON, JR., Judge
FN1. Mo. Const. art. II, section 1. (Back to Text).
FN2. Mo. Const. art. V, section 5. (Back to Text).
FN3. Mo. Const. art. V, section 18. (Back to Text).
FN4. Mo. Const. art. V, section 3. (Back to Text).
FN5. Section 454.465.5. (Back to Text).
FN6. Section 454.475, RSMo 1994. (Back to Text).
FN7. Section 454.496.2. (Back to Text).
FN8. Section 454.496.6 (Back to Text).
FN9. Section 454.596.7. (Back to Text).
FN10. Asbury v. Lombardi, 846 S.W.2d 196, 199 (Mo. banc 1993). (Back to Text).
FN11. State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69, 74 (Mo. banc 1982). (Back to Text).
FN12. Id. (Back to Text).
FN13. Id. (Back to Text).
FN14. Art. V., section 18. (Back to Text).
FN15. Lederer v. Department of Social Services, 825 S.W.2d 858, 863 (Mo.App. 1992). (Back to Text).
FN16. Percy Kent Bag Co. V. Missouri Commission, Etc., 632 S.W.2d 480, 484 (Mo. banc 1982). (Back to Text).
FN17. Section 454.496.5. (Back to Text).
FN18. Asbury, 846 S.W.2d at 200. (Back to Text).
FN19. Section 1.140, RSMo 1994. (Back to Text).