Watching the Waters: Constitutional Rulings of Administrative Law Judges in Minnesota

I.  Introduction

 

In the heart of Saint Paul, within the Minnesota State capitol district, you’ll find a small corner of the Department of Revenue building, headquartered in one of the most powerful judicial bodies in the state., the Office of Administrative Hearings Administrative Law Judges (ALJs).  Some would say calling them a judicial body is misleading, as they are executive branch judges and not part of the judiciary as we commonly understand it under Article VI of the Minnesota Constitution.  Many would also question the extent of their power as they issue, by and large, nonbinding decisions framed as conclusions or recommendations.  However, when you consider the questions that come before them and the impact their rulings have on the average citizen’s daily life, it quickly becomes clear the critical role they play in the Minnesota administrative state and beyond.  From the liquor license of Billy’s on Grand to the approval of the Polymet copper-nickel mine, from standard utility rate increases to Line 3, ALJs in Minnesota hold broad, often misunderstood, powers that shape the way agency decisions are made and how they impact the state as a whole with implications reaching beyond state lines.  

Questions of administrative law often pitch one branch of government against another branch of government.  What degree of deference does the judiciary owe a decision from an administrative agency within the executive branch?  What types of power can a legislature delegate to an administrative agency within the executive branch, and to what degree?  How should the judiciary interpret an enabling statute from Congress versus how it is interpreted by the executive branch agency enabling it?  These questions speak to the core of the United States system of government and its checks and balances between its political and judicial branches.  With questions regarding the authority and powers of administrative law judges and their ability to rule on agency actions, the executive branch finds itself fighting with itself. 

It is well accepted in Minnesota that Administrative Law Judges lack the power to declare a statute unconstitutional. [1] This is a fundamental difference between ALJs in the executive branch and Article VI judges.  Because of this, ALJs cannot hear facial constitutional challenges to statutes.  However, ALJs in Minnesota have ruled on “as-applied” constitutional challenges to statutes.  This question remains unresolved in Minnesota,[2]  with important policy questions at its heart and compelling arguments on both sides for why they should or should not have that ability. 

  II.  Minnesota Contested Case Hearings and the Role of ALJs

Administrative law needs to be understood by the public at large despite its importance in their daily lives. This is unsurprising, as administrative law covers a broad swathe of territory and tends to verge on the arcane in its practice.  To better frame the constitutional rulings that ALJs can make, it is crucial to give context to the questions to which these powers would be applied.  As the Minnesota Constitution prescribes, the executive branch has broad enforcement powers.[3]  These powers, vested in the governor and other officers, are carried out through agency actions.  These include license granting and revocation, utility rate setting, and election violation penalties.  Many statutes and rules allow a contested case hearing before an administrative law judge to, as the name implies, contest an agency action.  In some cases, the right to a contested hearing is at issue, with some attempting to get a hearing reaching the Minnesota Supreme Court.[4]

Contested case hearings are not dissimilar from other judicial proceedings.  Allowing yourself to become complacent in a contested case hearing and believing that the standard rules of evidence and judicial respect do not apply is a way to alienate the presiding ALJ.  Although many parties do proceed pro se (editor’s note, for our non-legal readers, pro se means self-represented), in contested case hearings, the leeway afforded them by ALJs should not cause lawyers to become complacent. For the most part, ALJs do not issue a final decision, and this is a possible reason why they have the perception of being different from other judicial officers.[5]   A contested case hearing creates a record that will go to the decision maker and an Article VI appellate court.[6]  The ALJ makes a finding of fact, conclusion of law, and recommendation based on the evidence presented in the record, which is passed to the decision maker.[7]  The decision maker, generally the head of an agency, issues a final order.[8] These final orders are appealable directly to the court of appeals, effectively putting the ALJ’s role and the contested case hearing proceeding on the district court level in terms of how the records they produce are utilized by reviewing bodies.[9]

The following example should explain how statutes, agency actions, and contested case hearings coalesce.  Suppose you are a stay-at-home parent and have decided to start a daycare with other stay-at-home parents in the neighborhood.  First, you will need to obtain a license.[10] To do this, you must file an application with the state establishing that you have the requisite premises, undergo a background check, and meet other requirements to obtain a license.  You receive the license and operate for a few months without any incident.  One day, you find out that one of your charges wandered away from the licensed premises and was found by a dog walker, who brought them to the police station.  The parent of this child files a complaint with the state.  A state investigator comes to the premises for an inspection, interviews the involved parties, and recommends a temporary issuance of suspension (TIS) of the license for the facility until a final finding can be made regarding their license. 

This process has multiple places for a contested case hearing under Minnesota statute.  Suppose your application for a license was denied; you have a right under the statute to a contested case hearing regarding that denial.[11] The TIS order is also subject to a contested case hearing.[12] Other actions arising from licensing actions, such as penalties or revocations, also give a right to a contested case hearing with an administrative law judge.[13]

III.  Minnesota ALJ’s Authority Over Facial Constitutional Questions

Minnesota ALJs are not granted the power to declare a statute unconstitutional.[14]  This prevents proceedings overseen by ALJs from hearing facial challenges to the constitutionality of a statute.[15] However, ALJs in Minnesota have interpreted their powers as allowing them to hear “as-applied” constitutional challenges to applying statutes.[16] As of now, this is an open question of law in Minnesota.[17]

In Needland v. Clearwater Memorial Hospital, the Minnesota Supreme Court held that lower administrative tribunals could not have heard the facial constitutional challenges presented to them and were adequately brought before them.[18] This case proposes that ALJs and the executive branch decision-makers issuing final holdings in their contested case hearings cannot rule statutes unconstitutional.[19]  This has commonly been understood to be a power reserved to the judicial branch of government, so it should come as no surprise that facial challenges are reserved for proceedings under the jurisdiction of that body. 

The previously discussed licensing example provides the context for the difference between “as-applied” and “facial” constitutional rulings.  In a contested case hearing about the denial of an application for a license to open a daycare, suppose the applicant raised an equal protection claim accusing the reviewing body of systematically discriminating against people of their racial group by denying them licenses to run daycares.   

This would be an “as-applied” constitutional claim because it alleges the reviewing agency’s actions and not that the underlying statute is unconstitutional.  Under the current system, ALJs could hear these claims.  In a contested case hearing about the temporary issuance of suspension of a daycare license, suppose the license operator alleged that the reviewing body’s statutory authority was preempted by a federal law and was therefore unconstitutional.  An ALJ could not hear this, as they are attempting to overrule the underlying statute, not a particular method of enforcing it. 

IV.  As-Applied Constitutional Challenges in Minnesota

COVID-19 licensing practices brought Minnesota administrative law to a tense intersection between politics, policy, and oversight, where actions taken by the state against license holders who violated the governor’s emergency measures during the novel global pandemic.  Penalties in many of these cases were actions against the liquor and other licenses held by the groups that violated the lockdown orders.  Here, we see the legal tactics: by making these licensing actions and not other enforcement actions, the enforcement bodies had contested case hearings and were not in district court.  The fact-finding would take place in a contested case hearing that would take a considerable time, and the decision maker could still uphold the licensing action before there was a chance for review. Without alleging conspiracy or wrongdoing in this process, it is easy to see why it was attractive. By the time a nonexecutive branch decision-maker had the case, the worst of the COVID-19 pandemic would likely have been over, and the stakes from the outcome somewhat lowered.  This was a tactical, but by no means illegal or unethical, use of the administrative hearing process.  However, the Office of Attorney General (OAG) attorneys in this process were counting on the ALJs not ruling on the constitutional challenges brought by these groups. 

In the Matter of the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC is an example of such a case during the COVID-19 pandemic.  This decision and others issued around the same time use the same language in addressing the ALJ’s authority to hear constitutional as-applied challenges.  Boardwalk was a bar and restaurant in East Grand Forks, Minnesota.[20] During December of 2020, it opened in opposition to Governor Walz’s Executive Order 20-99, which effectively closed bars and restaurants to the public.[21] Boardwalk received cease and desist orders and a warning that further actions would be taken if they continued operating.[22]  Boardwalk was observed to continue to operate despite these warnings, and its liquor license was ultimately suspended for sixty days.[23] At the summary disposition (similar to summary judgment in contested case hearings), the license holder raised a regulatory taking claim, an equal protection claim, and a dormant commerce clause claim.[24] The Alcohol and Gambling Enforcement Division (AGED) maintained that the ALJ could not hear these claims, and the legality of the actions should have been presumed.[25]

The context in which these cases were heard and decisions were reached is critical.  It is easy to see why the OAG, agency decision-makers, and the governor would not want rulings declaring their actions unconstitutional.  At the height of the pandemic and the COVID lockdowns, especially in Minnesota, tensions were running high.  It would not have taken much, even something as little as an ALJ decision declaring the lockdowns or other actions taken by the governor during the pandemic unconstitutional, to potentially trigger mass nonconformance among certain peoples and businesses against the lockdown measures. 

The analysis carried out in Boardwalk Bar & Grill, and the other mentioned cases have plain meanings and underlying purposes.  According to the ALJ in that case, “The provisions of MAPA describe a broader role for administrative law judges in ensuring agency compliance with the law in specific cases – a body of law that includes statutory and constitutional provisions.”[26] The critical language in the Boardwalk decision, used in other cases since stated: 

“It is inconceivable that the legislature would refer matters to the Office of Administrative Hearings for the purposes of verifying the lawfulness proposed agency actions, and ‘increas[ing] the fairness … of contested case proceedings,’ but only permit only a subset of our laws to be considered.  Incomplete analyses frustrate the legislature’s key purpose when enacting MAPA; specifically an ‘expectation that better substantive results will be achieved in the everyday conduct of state government by improving the process by which those results are attained.’  Ensuring the lawfulness of particular agency actions, before they are given full effect, is the ‘better substantive result’ that is contemplated by the MAPA.”[27]  

Despite ruling in favor of the AGED on all three constitutional claims, the ALJs here and in other cases took a firm position that they could hear as-applied challenges despite AGED’s positions.  AGED maintained that the prohibition against hearing facial challenges covered all constitutional claims.  The ALJ, in this case, differentiated between the two based on the plain meaning of MAPA.  The same language was used in similar cases (see IN THE MATTER OF THE ENFORCEMENT ACTION AGAINST LIQUOR LICENSE NO. 63684, ISSUED TO MISSION TAVERN INC. and IN THE MATTER OF THE ENFORCEMENT ACTION AGAINST LIQUOR LICENSE No. 67512, ISSUED TO LIONHEART, LLC d/b/a ALIBI DRINKERY), establishing this was not a one-off decision based on the facts of Boardwalk.  The decisions in these cases, Boardwalk, Lionheart, and Mission Tavern, were issued the same day using similar language and reasoning. 

This raises an important question: if ALJ’s claim they can hear as-applied challenges and do hear them, without any further claims they can hear facial challenges, doesn’t that answer the question? Perhaps in practice, the answer for lawyers appearing before ALJs in Minnesota is “Yes, ALJs can hear as-applied challenges.” If a lawyer insists ALJs cannot, they should be prepared to plead in the alternative on those as-applied Constitutional issues.  Because of the legal basis for the Boardwalk and other decisions, it is not yet considered a settled question.  There are holes in the Boardwalk and subsequent decisions that have yet to be filled in, namely any Article VI judicial decisions in Minnesota confirming that authority.  In discussing this issue, the leading Minnesota Administrative Law treatise does not cite any Minnesota cases in support of its assertion that Minnesota ALJs have the power to hear as-applied challenges.  The basis for this power is assumed from the language used in the MAPA and not from a Minnesota Article VI court’s ruling, meaning this general idea is subject to judicial review that it has yet to receive. 

V.  Policy Arguments

However sound the legal basis for as-applied ALJ rulings, it is essential to weigh the policy arguments for and against their power. Why do agencies against ALJs within their branch of government have broader authority to rule on matters that come before them? Why are ALJs in Minnesota advocating to have this ability? There are reasons for both stances connected to and separate the black letter law reasoning.

A. Against

There are arguments that ALJs should be constrained from hearing constitutional challenges to a statute as applied. These views are both agency-focused and public-focused. 

A desire for agency efficiency loosely connects agency-focused arguments.  ALJs have already presented an obstacle to agencies that need to be overcome.  A contested case hearing presents an opportunity to defend an agency action and provide a process but also requires time and personnel resources.  Not only do attorneys from within the Office of the Attorney General need to appear, but witnesses from across a wide range of agencies must be present, depending on the action involved.  These witnesses are drawn away from their regular duties for both preparation and the lengthy proceedings themselves.  ALJs become subject matter experts in the most common types of proceedings, often far over the OAG attorneys appearing before them.  In many cases, this holds the OAG to strict standards even if statutory rules favor their side in a proceeding.  In general, the arguments against it emerge generally from the agencies based on efficiency. 

The agency is vested in avoiding as-applied challenges being heard by ALJs.  It places them in an uncomfortable position.  Recall that ALJs do not make final decisions in most contested cases before them.  They hand those decisions to decision-makers who may have been the ones to proliferate, supervise, or even out the actions being called unconstitutional as applied.  It places that decision maker in a position of either siding with themselves and perhaps signaling bias or overturning their agency’s actions and maybe thus admitting some culpability.  These are policy and public relations concerns more than anything, but in administrative law, these can be as important as any judicial doctrine in driving agency behavior.  Whether or not or the extent to which these underlying political concerns influence the more judicial-minded arguments brought by attorneys general in Minnesota is a question left to the reader. 

There is also an argument that allowing as-applied challenges undermines the prohibition against facial challenges.  While basic Constitutional powers questions are satisfied by preventing the ALJ from hearing facial challenges or ruling a statute unconstitutional, as-applied challenges may, in many respects, begin to resemble facial ones.  The actions of an unconstitutional statute would also be unconstitutional when as-applied challenges are present.  How could an agency constitutionally apply an unconstitutional statute?  Perhaps exceptions exist, but the circular nature of that inquiry is why there is a judiciary in the first place. This logic goes that the more arcane the constitutional concern, the more vital the judiciary does its interpretation.  There is a sense of judicial efficiency and honoring original intent by leaving all constitutional questions for judicial officers and not impeding the executive’s duty by overly troubling themselves with questions of Constitutional Law in carrying out their duties. 

B. For

There are arguments that ALJs should be allowed to hear as-applied constitutional challenges to a statute.  These views favor both constitutional separation of powers arguments and public protection. 

The separation of powers arguments calls into question the purpose of ALJs in the first place.  ALJs are ostensibly subject matter expert judges meant to keep district courts from being overwhelmed with highly technical administrative challenges.  They are not meant to be a “rubber stamp bench” closely aligned with agency goals.  ALJs are a functional check on agency behavior and whether or not their decisions are binding.  Their position in the chain of justice, on the level of district courts, forms the record that Article VI judges will use on appeal.  They should not and are not sympathetic to agencies over the public. 

Under this current policy, state administrative agencies are asking ALJs to ignore unconstitutional enforcement behavior and allow them to continue those practices until they reach an appellate court.  The types of hearings that the Office of Administrative Hearings could rule on would remain the same.  The process by which contested case hearings are given would stay the same.  Allowing “as-applied” challenges would provide ALJs with another framework to analyze the appropriateness of enforcing a statute.  If an agency action is unconstitutional, it is unconstitutional whether a district court judge determines it is or if an ALJ does. 

The constitutional “as-applied” argument is essential for citizens seeking to challenge agency actions.  Private citizens lack the legal resources of the agencies.  In many cases, they have limited options by statute for challenging these agency actions unless they violate the founding statute or are arbitrary and capricious.  The ALJ process better serves the public by putting all their claims and facial statutory challenges aside at one time and having the evidence of all those claims develop alongside each other, not simply reserving them for an appeal. 

In practice, the ALJ system already favors the agencies in some ways through its process.  If the cases that typically went to ALJs went to district courts, the agency head would not be the final decision maker.  The fact that the agency head makes the final decision prolongs the process and buys the agency time to continue a behavior if timing is a concern.  The COVID-19 cases that came through the Minnesota Administrative Hearing pipeline allowed the licensing revocations and penalty actions to stand until the worst of the pandemic was over before the legal process could finish its final ruling.  Whether or not the revocations were constitutional, the agency could make a tactical choice to revoke the licenses and rely on the process to buy them time to achieve their goal.  That ability would not have been impinged (outside of perhaps from an optics perspective) if the ALJ in those COVID cases had said the revocations were constitutional as-applied or not, as the final decision maker remains the same. 

This “optics” argument is not without teeth.  The executive branch is a so-called “political” branch of government.  Political consequences are, therefore, not without a real sting.  Suppose the ALJ process is meant to hold agencies to their statutes. In that case, the agency has no right to avoid the potential embarrassment of an ALJ finding of fact, conclusion of law, and recommendation that went against them.  That embarrassment is the most substantial power an ALJ has.  A conclusion of law as powerful as an agency’s actions being unconstitutional as-applied would be all the more embarrassing and more constraining on agency actions.  Agencies carry out so many vital actions to the functioning of society as we currently understand it, and any constraint on them could be seen to impair their ability to function (see next section). Still, those arguments could be considered unpersuasive when weighed against these vital public interests.  Beyond that, the potential for embarrassment might add caution to agency actions to prevent them from engaging in behavior that might be seen as unconstitutional as-applied.  These questions pit the executive branch against itself instead of the usual agency/judiciary battles across administrative law.  ALJs are not the enemy of agencies.  With this power, ALJs would allow the agency decision-makers to undo potential as-applied unconstitutional acts before being reviewed by the judiciary, saving them arguably worse embarrassment.  It is up to decision-makers to take that opportunity when presented and not fight against it. 

VI. Minnesota ALJ’s Authority Over As-Applied Constitutional Questions

Where does the legal authority for ALJs to rule on as-applied challenges stem from, outside the determination of their powers?  When explaining the as-applied principle, the leading Minnesota Administrative Law Treatise cites the 1st District Court of Appeals case Smith v. Willis, which, in turn, in a footnote, cites a treatise from the 1950s approving of such a policy.[28] The justification is “an agency must be empowered to pass upon the constitutionality of a statute as applied. Otherwise, it would be incapable of executing the legislature’s intent, whether expressed, implied or presumed,” similar lines along which Boardwalk was decided.[29] A further 1st District Court of Appeals case is cited that stands for the proposition that agencies, while unable to rule on the constitutionality of statutes, are afforded powers to interpret their enabling statute, which would include the constitutionality of how to apply it.[30]  In this way, an ALJ is, by extension, exercising this power afforded to agencies when ruling on the as-applied constitutionality of agency actions.  The treatise cites a legal article examining a Supreme Court of Tennessee opinion.[31] This case divided constitutional questions facing an agency not into two but three categories: facial, as-applied, and questions regarding agency rules and procedures.[32] This third category seems somewhat excessive, as it would seem analogous to as-applied unless it were saying the statute that enabled that rulemaking was unconstitutional, in which case it would be a facial challenge.  Regardless, the Supreme Court of Tennessee held that “since an unconstitutional rule was an unconstitutional application of an otherwise constitutional statute, a challenge to a rule was cognizable by the agency” and that, therefore, the ALJs could rule on as-applied challenges and Constitutional challenges to an agency’s rules or procedures.[33] Again, Minnesota does not have such a Supreme Court case to guide it, but the similarities between how the Supreme Court of Tennessee and the ALJs have looked at the issue show why this treatise felt appropriate to cite. 

Why is this section from an Administrative Procedure’s treatise important to answering this question?  It is essential because, in some cases before the COVID-19 licensing matters, this was the sole authority cited for this proposition.[34] This idea cannot be considered set in stone when it arises from other states’ cases, ALJs own interpretation of their powers, and a few lines in a law treatise.  A more robust analysis is necessary to determine if ALJs are acting within the authority granted to them. 

When viewed together, the general legal justification for an ALJ’s ability to rule on as-applied constitutional matters comes from an agency’s general ability to interpret their own statute.  What authority do Minnesota agencies have to interpret their enabling statutes?  Per the Minnesota Court of Appeals, “​​Questions of statutory interpretation are reviewed de novo.”[35] They state, “…a reviewing court affords substantial deference to an administrative agency’s interpretation of its own rules and regulations.”[36] When an agency’s authority is called into doubt, the reviewing court then independently reviews the agency’s enabling statute.[37]  An agency has substantial deference to an agency’s interpretation of its own rules and regulations from an Article VI court.  The AGED’s argument in Boardwalk then has a little more context, relying on substantial deference from an ALJ and questioning the underlying authority of ALJs to make those rulings. 

Are agencies afforded the same level of deference by ALJs as by Article VI judges?  That question confused once again the role of ALJs versus Article VI judges.  ALJs act as finders of fact and recommenders; Article VI judges act as reviewers and check executive power.  Indeed, Minnesota has acknowledged that the agency decision-makers owe no deference to the ALJ’s conclusions and recommendations.[38] Further, about constitutional issues, it is likely that agencies are not afforded much deference even from Article VI judges as those issues are beyond their technical expertise. 

Based on the Minnesota Administrative Procedure Act, “…it shall also be the duty of the judge to make a report on each proposed agency action in which the administrative law judge functioned in an official capacity, stating findings of fact and conclusions and recommendations, taking notice of the degree to which the agency has (i) documented its statutory authority to take the proposed action…”[39]   This is the analysis used in Boardwalk, that provisions in MAPA “describe a broader role for administrative law judges in ensuring agency compliance with the law in specific cases – a body of law that includes statutory and constitutional provisions.”[40]  Boardwalk hung much of its decision on this plain meaning analysis but cannot stand alone as a justification.  For one, ALJs are constrained in how they can achieve agency compliance by not hearing facial challenges, a restriction not stated in MAPA.  Any as-applied restriction could similarly lurk between the lines if that restriction went unsaid.  Further, per MAPA, the ALJ’s analysis would end in compliance with the statute; however, the actions authorized by that statute were unconstitutional.  If a law could be reasonably interpreted to allow an unconstitutional action, the ALJ’s as-applied analysis would essentially border on a facial challenge. 

The Minnesota Constitution, like the US Constitution, contains a “take care” clause when referring to the duties of the executive branch.[41] The governor and the executive branch “shall take care that the laws be faithfully executed.”[42] The governor and executive agencies are meant to ensure that their actions align with the Constitution.  Suppose agencies are thus also bound by the “take care” clause to ensure the constitutionality of their actions as applied to specific situations. Why, then, should Administrative Law Judges not be able to subsequently also, through their rulings, ensure that these agencies are taken care of?  Indeed, if they are meant to take “Notice of the degree to which the agency has (i) documented its statutory authority to take the proposed action” per MAPA. The Minnesota Constitution would fall into that analysis, with ALJs documenting the degree to which an agency has “taken care” in its actions to abide by the Constitution. 

Beyond these concerns is a far more practical and novel conception of how ALJs can determine their powers: if the Office of Administrative Hearings is an agency on its own, are they afforded a high degree of deference in interpreting its enabling statute, as any other agency would be?  Would this “as-applied” power be a new rule they promulgated improperly?  The question of whether “X, Y, or Z” is an agency could potentially fill an entire volume of a journal, given all the different ways of attempting to define an agency. Still, it is worth discussing, however briefly.  The Office of Administrative Hearings bills its time to each agency with which it works on a particular contested case but is created separately from other agencies via MAPA.[43] As an adjudicatory body, it makes sense that it would be its separate institution.  Per MAPA, an agency is “any state officer, board, commission, bureau, division, department, or tribunal, other than a judicial branch court and the Tax Court, having statewide jurisdiction and authorized by law to make rules or to adjudicate contested cases.”[44] OAH fits this definition, especially since an explicit exception is given to the judicial branch and tax courts.  The silence on OAH speaks volumes.  Based on this cursory review, an argument could be made that OAH is its agency.  The Office of Administrative Hearing’s Chief Administrative Law Judge is given the power to adopt rules to govern the procedural conduct of all hearings and review the regulations adopted without public hearing.[45] This would seem to be, while unspoken, how the ALJs at the Office of Administrative Hearings have approached their decisions in this area.  In this light, Boardwalk’s look at the plain meaning of their enabling statute seems to be on a firmer footing.  If and when an Article VI judge makes a ruling on this matter, there is a high chance that the ALJs’ interpretation of their statute and powers would be afforded some level of deference. 

The analysis leads to a clear result: based on the powers already afforded to agencies to interpret their statutes, a plain reading of MAPA, the power of the executive branch to pick and choose among their forms of enforcement actions based on their constitutionality, and the likelihood ALJs have deference in interpreting their statute, Administrative Law Judges likely have the power to rule on as-applied constitutional challenges in Minnesota. 

VI. Conclusions

Questions of administrative law speak to the heart of our system of governance.  Determining what powers belong to which branch, which powers belong to what body within each branch, and how they may exercise those powers has been a long, thoughtful process.  While not perfect, it serves to better our form of government and improve how public institutions serve citizens.  These questions cannot be taken lightly, and in their consideration, the legal and public factors and concerns must be weighed and given due consideration.  If no simple answer is readily apparent, it is likely for a reason.  If there is an answer, it likely stems from preexisting doctrines.  There is a reason to interrogate these issues and seek clear answers about outstanding topics in administrative law.  The administrative state and how administrative law is questioned more than ever at every level.  It is for that reason that clarity on these issues is vital. 

A seemingly simple question of law is presented: can administrative law judges in Minnesota rule on whether or not an agency action is “as-applied” unconstitutional?  It can hardly be considered an earth-shattering change, whatever the answer.  It would not change an ALJ’s power.  It would not significantly constrain an agency head’s ability to issue the final decision in a contested case.  It would not prevent judicial review of these decisions and further opportunities for an Article VI judge to rule on the constitutionality of agency actions, whether facial challenges or as-applied. 

If it is a simple question, why is it an open question of law?  There is, as always, the chance it simply has not reached an Article VI court yet that has needed to rule on it. It has also been left open for the executive branch to determine the extent of its powers and oversight within the constraints of MAPA and other Minnesota laws.  Based on the plain reading of MAPA and the “take care” clause, the power is likely there for ALJs and agency heads.  If the power exists, then Article VI judges may not need to issue a ruling and may be reluctant to tell a political branch how to conduct themselves in an internal matter within their powers. 

What is more important than having an Article VI judge issuing a ruling on this issue is for the executive branch to accept an answer.  ALJs have been, for all appearances, united in adopting the position they can rule on “as-applied” challenges.  It is up to the agencies to see the advantages of this or to uniformly present an argument or policy that would dissuade ALJs from this course.  Of course, agency heads would once again risk poor optics by constraining ALJs who are, in a way, there to check their powers and may be pretty content to wait for a final decision from another branch.  An Article VI judicial opinion on the question may take a long time to come, if ever.  In the meantime, ALJs have made the rulings.  Time will tell if they have the authority to do so. 

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[1] Neeland v. Clearwater Mem’l Hosp., 257 N.W.2d 366, 368 (Minn. 1977).
[2] George Beck et al., Minnesota Administrative Procedure, Ch. 11 § 11.5 (3d ed. 2014).
[3] Minn. Const. art. V, § 3.
[4] In re NorthMet Project Permit to Mine Application, 959 N.W.2d 731 (Minn. 2021).
[5] George Beck et al., Minnesota Administrative Procedure, Ch. 4 § 4.5 (3d ed. 2014).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Minn. Stat. § 245A.03 subd. 1 (2023).
[11] Minn. Stat. § 245A.05(b) (2023).
[12] Minn. Stat. § 148B.5901 (2023).
[13] Minn. Stat. § 245A.08 (2023).
[14] In re the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC, OAH 8-2400-37252, RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY DISPOSITION (Minn. Off. Admin. Hearings Mar. 26, 2021).
[15] Id. at 10.
[16] Id. at 10-11.
[17] George Beck et al., Minnesota Administrative Procedure, Ch. 11 § 11.5 (3d ed. 2014).
[18] Neeland v. Clearwater Mem’l Hosp., 257 N.W.2d 366 (Minn. 1977).
[19] In re License in re Rochester Ambulance Serv., Div. of Hiawatha Aviation, Inc., 500 N.W.2d 495 (Minn. Ct. App. 1993).
[20] In re the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC, OAH 8-2400-37252, RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY DISPOSITION (Minn. Off. Admin. Hearings Mar. 26, 2021).
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] In re the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC, OAH 8-2400-37252, RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY DISPOSITION (Minn. Off. Admin. Hearings Mar. 26, 2021).
[27] Id.
[28] Smith v. Willis, 415 So. 2d 1331, 1336 (Fla. Dist. Ct. App. 1982).
[29] Id.
[30] Jackson Cnty. Educ. Ass’n v. Grass Lake Cmty. Sch. Bd. of Educ., 95 Mich. App. 635, 641, 291 N.W.2d 53, 56 (1979).
[31]Marykay Foy, The Authority of an Administrative Agency to Decide Constitutional Issues: Richardson v. Tennessee Board of Dentistry, 17 J. Nat’l Ass’n Admin. L. Judiciary (1997).
[32] Id. at 174-75.
[33] Id. at 181.
[34] Stephen Wunderlich v. Joseph Walsh, OAH 68-0325-31872, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER (Minn. Off. Admin. Hearings Oct. 23, 2014).
[35] In re Risk Level Determination of R.B.P., 640 N.W.2d 351 (Minn. Ct. App. 2002).
[36] Id.
[37] Id.
[38] In the Matter of the Sirs Appeal by Trinity Home Health Care Services and Etyane Ayana, OAH 5-1800-36178 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION ON REMAND (Minn. Off. Admin. Hearings Aug. 30, 2021).
[39] Minn. Stat. § 14.50 (2023).
[40] In re the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC, OAH 8-2400-37252, RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY DISPOSITION (Minn. Off. Admin. Hearings Mar. 26, 2021).
[41] Minn. Const. art. V, § 3.
[42] Id.
[43] Minn. Stat. § 14.53, 14.48 (2023).
[44] Minn. Stat. § 14.02 (2023).
[45] Minn. Stat. § 14.51 (2023).