{"id":818,"date":"2024-10-09T13:44:46","date_gmt":"2024-10-09T18:44:46","guid":{"rendered":"https:\/\/mitchellhamline.edu\/law-journal\/?p=818"},"modified":"2024-11-12T13:20:16","modified_gmt":"2024-11-12T19:20:16","slug":"watching-the-waters-constitutional-rulings-of-administrative-law-judges-in-minnesota","status":"publish","type":"post","link":"https:\/\/mitchellhamline.edu\/law-journal\/2024\/10\/09\/watching-the-waters-constitutional-rulings-of-administrative-law-judges-in-minnesota\/","title":{"rendered":"Watching the Waters: Constitutional Rulings of Administrative Law Judges in Minnesota"},"content":{"rendered":"
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Watching the Waters: Constitutional Rulings of Administrative Law Judges in Minnesota<\/h2>\n

Caleb Wootan is a 3L at Mitchell Hamline School of Law.
\n<\/p>\n<\/div>\n

I.\u00a0 Introduction<\/h2>\n

 <\/p>\n

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Article by Caleb Wootan<\/strong><\/p><\/div>\n

In the heart of Saint Paul, within the Minnesota State capitol district, you\u2019ll 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).\u00a0 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.\u00a0 Many would also question the extent of their power as they issue, by and large, nonbinding decisions framed as conclusions or recommendations.\u00a0 However, when you consider the questions that come before them and the impact their rulings have on the average citizen\u2019s daily life, it quickly becomes clear the critical role they play in the Minnesota administrative state and beyond.\u00a0 From the liquor license of Billy\u2019s 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.\u00a0\u00a0<\/span><\/p>\n

Questions of administrative law often pitch one branch of government against another branch of government.\u00a0 What degree of deference does the judiciary owe a decision from an administrative agency within the executive branch?\u00a0 What types of power can a legislature delegate to an administrative agency within the executive branch, and to what degree?\u00a0 How should the judiciary interpret an enabling statute from Congress versus how it is interpreted by the executive branch agency enabling it?\u00a0 These questions speak to the core of the United States system of government and its checks and balances between its political and judicial branches.\u00a0 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.<\/span>\u00a0<\/span><\/p>\n

It is well accepted in Minnesota that Administrative Law Judges lack the power to declare a statute unconstitutional. [1]<\/a><\/span> This is a fundamental difference between ALJs in the executive branch and Article VI judges.\u00a0 Because of this, ALJs cannot hear facial constitutional challenges to statutes.\u00a0 However, ALJs in Minnesota have ruled on \u201cas-applied\u201d constitutional challenges to statutes.\u00a0 This question remains unresolved in Minnesota,[2]<\/a> <\/span>\u00a0with important policy questions at its heart and compelling arguments on both sides for why they should or should not have that ability.\u00a0<\/span><\/p>\n

\u00a0 II. \u00a0Minnesota Contested Case Hearings and the Role of ALJs<\/h2>\n

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.\u00a0 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.\u00a0 As the Minnesota Constitution prescribes, the executive branch has broad enforcement powers.[3]<\/a>\u00a0<\/span>\u00a0These powers, vested in the governor and other officers, are carried out through agency actions.\u00a0 These include license granting and revocation, utility rate setting, and election violation penalties.\u00a0 Many statutes and rules allow a contested case hearing before an administrative law judge to, as the name implies, contest an agency action.\u00a0 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]<\/a><\/span><\/p>\n

Contested case hearings are not dissimilar from other judicial proceedings.\u00a0 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.\u00a0 Although many parties do proceed <\/span>pro se <\/span><\/i>(editor\u2019s note, for our non-legal readers, <\/span>pro se<\/span><\/i> 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>\u00a0<\/span>\u00a0 A contested case hearing creates a record that will go to the decision maker and an Article VI appellate court.[6]<\/a><\/span>\u00a0 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]<\/a> <\/span>\u00a0The decision maker, generally the head of an agency, issues a final order.[8]<\/a> <\/span>These final orders are appealable directly to the court of appeals, effectively putting the ALJ\u2019s 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]<\/a> <\/span><\/p>\n

The following example should explain how statutes, agency actions, and contested case hearings coalesce.\u00a0 Suppose you are a stay-at-home parent and have decided to start a daycare with other stay-at-home parents in the neighborhood.\u00a0 First, you will need to obtain a license.[10]<\/a>\u00a0<\/span>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.\u00a0 You receive the license and operate for a few months without any incident.\u00a0 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.\u00a0 The parent of this child files a complaint with the state.\u00a0 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.<\/span>\u00a0<\/span><\/p>\n

This process has multiple places for a contested case hearing under Minnesota statute.\u00a0 Suppose your application for a license was denied; you have a right under the statute to a contested case hearing regarding that denial.[11]<\/a> <\/span>The TIS order is also subject to a contested case hearing.[12]<\/a><\/span>\u00a0Other 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]<\/a> <\/span><\/p>\n

III. \u00a0Minnesota ALJ\u2019s Authority Over Facial Constitutional Questions<\/h2>\n

Minnesota ALJs are not granted the power to declare a statute unconstitutional.[14]<\/a> <\/span>\u00a0This prevents proceedings overseen by ALJs from hearing facial challenges to the constitutionality of a statute.[15]<\/a>\u00a0<\/span>However, ALJs in Minnesota have interpreted their powers as allowing them to hear \u201cas-applied\u201d constitutional challenges to applying statutes.[16]<\/a><\/span>\u00a0As of now, this is an open question of law in Minnesota.[17]<\/a><\/span><\/p>\n

In <\/span>Needland v. Clearwater Memorial Hospital<\/span><\/i>, 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]<\/a><\/span>\u00a0This case proposes that ALJs and the executive branch decision-makers issuing final holdings in their contested case hearings cannot rule statutes unconstitutional.[19]<\/a> <\/span>\u00a0This 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.<\/span>\u00a0<\/span><\/p>\n

The previously discussed licensing example provides the context for the difference between \u201cas-applied\u201d and \u201cfacial\u201d constitutional rulings.\u00a0 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.\u00a0\u00a0<\/span>\u00a0<\/span><\/p>\n

This would be an \u201cas-applied\u201d constitutional claim because it alleges the reviewing agency\u2019s actions and not that the underlying statute is unconstitutional.\u00a0 Under the current system, ALJs could hear these claims.\u00a0 In a contested case hearing about the temporary issuance of suspension of a daycare license, suppose the license operator alleged that the reviewing body\u2019s statutory authority was preempted by a federal law and was therefore unconstitutional.\u00a0 An ALJ could not hear this, as they are attempting to overrule the underlying statute, not a particular method of enforcing it.<\/span>\u00a0<\/span><\/p>\n

IV.\u00a0 As-Applied Constitutional Challenges in Minnesota<\/h2>\n

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\u2019s emergency measures during the novel global pandemic<\/span>.\u00a0 Penalties in many of these cases were actions against the liquor and other licenses held by the groups that violated the lockdown orders.\u00a0 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.\u00a0 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.\u00a0 This was a tactical, but by no means illegal or unethical, use of the administrative hearing process.\u00a0 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.<\/span>\u00a0<\/span><\/p>\n

In the Matter of the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC<\/span><\/i> is an example of such a case during the COVID-19 pandemic.\u00a0 This decision and others issued around the same time use the same language in addressing the ALJ\u2019s authority to hear constitutional as-applied challenges.\u00a0 Boardwalk was a bar and restaurant in East Grand Forks, Minnesota.[20]<\/a><\/span>\u00a0During December of 2020, it opened in opposition to Governor Walz\u2019s Executive Order 20-99, which effectively closed bars and restaurants to the public.[21]<\/a><\/span>\u00a0Boardwalk received cease and desist orders and a warning that further actions would be taken if they continued operating.[22]<\/a> <\/span>\u00a0Boardwalk was observed to continue to operate despite these warnings, and its liquor license was ultimately suspended for sixty days.[23]<\/a>\u00a0<\/span>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]<\/a> <\/span>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]<\/a><\/span><\/p>\n

The context in which these cases were heard and decisions were reached is critical.\u00a0 It is easy to see why the OAG, agency decision-makers, and the governor would not want rulings declaring their actions unconstitutional.\u00a0 At the height of the pandemic and the COVID lockdowns, especially in Minnesota, tensions were running high.\u00a0 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.<\/span>\u00a0<\/span><\/p>\n

The analysis carried out in <\/span>Boardwalk Bar & Grill, and<\/span><\/i> the other mentioned cases have plain meanings and underlying purposes.\u00a0 According to the ALJ in that case, \u201cThe provisions of MAPA describe a broader role for administrative law judges in ensuring agency compliance with the law in specific cases \u2013 a body of law that includes statutory and constitutional provisions.\u201d[26]<\/a><\/span>\u00a0The critical language in the <\/span>Boardwalk<\/span><\/i> decision, used in other cases since stated:<\/span>\u00a0<\/span><\/p>\n

\u201cIt 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 \u2018increas[ing] the fairness … of contested case proceedings,\u2019 but only permit only a subset of our laws to be considered.\u00a0 Incomplete analyses frustrate the legislature\u2019s key purpose when enacting MAPA; specifically an \u2018expectation that better substantive results will be achieved in the everyday conduct of state government by improving the process by which those results are attained.\u2019\u00a0 Ensuring the lawfulness of particular agency actions, before they are given full effect, is the \u2018better substantive result\u2019 that is contemplated by the MAPA.\u201d[27]<\/a>\u00a0<\/span>\u00a0<\/span><\/p><\/blockquote>\n

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\u2019s positions.\u00a0 AGED maintained that the prohibition against hearing facial challenges covered all constitutional claims.\u00a0 The ALJ, in this case, differentiated between the two based on the plain meaning of MAPA.\u00a0 The same language was used in similar cases (<\/span>see<\/span><\/i> IN THE MATTER OF THE ENFORCEMENT ACTION\u202fAGAINST\u202fLIQUOR LICENSE NO. 63684, ISSUED TO\u202fMISSION\u202fTAVERN\u202fINC. 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 <\/span>Boardwalk<\/span><\/i>.\u00a0 The decisions in these cases, <\/span>Boardwalk<\/span><\/i>, <\/span>Lionheart<\/span><\/i>, and <\/span>Mission Tavern<\/span><\/i>, were issued the same day using similar language and reasoning.<\/span>\u00a0<\/span><\/p>\n

This raises an important question: if ALJ\u2019s claim they can hear as-applied challenges and do hear them, without any further claims they can hear facial challenges, doesn\u2019t that answer the question? Perhaps in practice, the answer for lawyers appearing before ALJs in Minnesota is \u201cYes, ALJs can hear as-applied challenges.\u201d If a lawyer insists ALJs cannot, they should be prepared to plead in the alternative on those as-applied Constitutional issues.\u00a0 Because of the legal basis for the <\/span>Boardwalk<\/span><\/i> and other decisions, it is not yet considered a settled question.\u00a0 There are holes in the <\/span>Boardwalk<\/span><\/i> and subsequent decisions that have yet to be filled in, namely any Article VI judicial decisions in Minnesota confirming that authority.\u00a0 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.\u00a0 The basis for this power is assumed from the language used in the MAPA and not from a Minnesota Article VI court\u2019s ruling, meaning this general idea is subject to judicial review that it has yet to receive.<\/span>\u00a0<\/span><\/p>\n

V.\u00a0 Policy Arguments<\/h2>\n

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.<\/p>\n

A. Against<\/h3>\n

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.<\/span>\u00a0<\/span><\/p>\n

A desire for agency efficiency loosely connects agency-focused arguments.\u00a0 ALJs have already presented an obstacle to agencies that need to be overcome.\u00a0 A contested case hearing presents an opportunity to defend an agency action and provide a process but also requires time and personnel resources.\u00a0 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.\u00a0 These witnesses are drawn away from their regular duties for both preparation and the lengthy proceedings themselves.\u00a0 ALJs become subject matter experts in the most common types of proceedings, often far over the OAG attorneys appearing before them.\u00a0 In many cases, this holds the OAG to strict standards even if statutory rules favor their side in a proceeding.\u00a0 In general, the arguments against it emerge generally from the agencies based on efficiency.<\/span>\u00a0<\/span><\/p>\n

The agency is vested in avoiding as-applied challenges being heard by ALJs.\u00a0 It places them in an uncomfortable position.\u00a0 Recall that ALJs do not make final decisions in most contested cases before them.\u00a0 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.\u00a0 It places that decision maker in a position of either siding with themselves and perhaps signaling bias or overturning their agency\u2019s actions and maybe thus admitting some culpability.\u00a0 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.\u00a0 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.<\/span>\u00a0<\/span><\/p>\n

There is also an argument that allowing as-applied challenges undermines the prohibition against facial challenges.\u00a0 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.\u00a0 The actions of an unconstitutional statute would also be unconstitutional when as-applied challenges are present.\u00a0 How could an agency constitutionally apply an unconstitutional statute?\u00a0 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.\u00a0 There is a sense of judicial efficiency and honoring original intent by leaving all constitutional questions for judicial officers and not impeding the executive\u2019s duty by overly troubling themselves with questions of Constitutional Law in carrying out their duties.<\/span>\u00a0<\/span><\/p>\n

B. For<\/h3>\n

There are arguments that ALJs should be allowed to hear as-applied constitutional challenges to a statute.\u00a0 These views favor both constitutional separation of powers arguments and public protection.<\/span>\u00a0<\/span><\/p>\n

The separation of powers arguments calls into question the purpose of ALJs in the first place.\u00a0 ALJs are ostensibly subject matter expert judges meant to keep district courts from being overwhelmed with highly technical administrative challenges.\u00a0 They are not meant to be a \u201crubber stamp bench\u201d closely aligned with agency goals.\u00a0 ALJs are a functional check on agency behavior and whether or not their decisions are binding.\u00a0 Their position in the chain of justice, on the level of district courts, forms the record that Article VI judges will use on appeal.\u00a0 They should not and are not sympathetic to agencies over the public.<\/span>\u00a0<\/span><\/p>\n

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.\u00a0 The types of hearings that the Office of Administrative Hearings could rule on would remain the same.\u00a0 The process by which contested case hearings are given would stay the same.\u00a0 Allowing \u201cas-applied\u201d challenges would provide ALJs with another framework to analyze the appropriateness of enforcing a statute.\u00a0 If an agency action is unconstitutional, it is unconstitutional whether a district court judge determines it is or if an ALJ does.<\/span>\u00a0<\/span><\/p>\n

The constitutional \u201cas-applied\u201d argument is essential for citizens seeking to challenge agency actions.\u00a0 Private citizens lack the legal resources of the agencies.\u00a0 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.\u00a0 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.<\/span>\u00a0<\/span><\/p>\n

In practice, the ALJ system already favors the agencies in some ways through its process.\u00a0 If the cases that typically went to ALJs went to district courts, the agency head would not be the final decision maker.\u00a0 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.\u00a0 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.\u00a0 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.\u00a0 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.<\/span>\u00a0<\/span><\/p>\n

This \u201coptics\u201d argument is not without teeth.\u00a0 The executive branch is a so-called \u201cpolitical\u201d branch of government.\u00a0 Political consequences are, therefore, not without a real sting.\u00a0 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.\u00a0 That embarrassment is the most substantial power an ALJ has.\u00a0 A conclusion of law as powerful as an agency\u2019s actions being unconstitutional as-applied would be all the more embarrassing and more constraining on agency actions.\u00a0 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.\u00a0 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.\u00a0 These questions pit the executive branch against itself instead of the usual agency\/judiciary battles across administrative law.\u00a0 ALJs are not the enemy of agencies.\u00a0 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.\u00a0 It is up to decision-makers to take that opportunity when presented and not fight against it.<\/span>\u00a0<\/span><\/p>\n

VI. Minnesota ALJ\u2019s Authority Over As-Applied Constitutional Questions<\/h2>\n

Where does the legal authority for ALJs to rule on as-applied challenges stem from, outside the determination of their powers?\u00a0 When explaining the as-applied principle, the leading Minnesota Administrative Law Treatise cites the 1st District Court of Appeals case <\/span>Smith v. Willis<\/span><\/i>, which, in turn, in a footnote, cites a treatise from the 1950s approving of such a policy.[28]<\/a><\/span>\u00a0The justification<\/span> is <\/span>\u201can 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,\u201d similar lines along which Boardwalk was decided.[29]<\/a><\/span>\u00a0A 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]<\/a>\u00a0<\/span>\u00a0In this way, an ALJ is, by extension, exercising this power afforded to agencies when ruling on the as-applied constitutionality of agency actions.\u00a0 The treatise cites a legal article examining a Supreme Court of Tennessee opinion.[31]<\/a> <\/span>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]<\/a> <\/span>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.\u00a0 Regardless, the Supreme Court of Tennessee held that \u201csince an unconstitutional rule was an unconstitutional application of an otherwise constitutional statute, a challenge to a rule was cognizable by the agency\u201d and that, therefore, the ALJs could rule on as-applied challenges and Constitutional challenges to an agency\u2019s rules or procedures.[33]<\/a><\/span>\u00a0Again, 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.<\/span>\u00a0<\/span><\/p>\n

Why is this section from an Administrative Procedure\u2019s treatise important to answering this question?\u00a0 It is essential because, in some cases before the COVID-19 licensing matters, this was the sole authority cited for this proposition.[34]<\/a> <\/span>This idea cannot be considered set in stone when it arises from other states\u2019 cases, ALJs own interpretation of their powers, and a few lines in a law treatise.\u00a0 A more robust analysis is necessary to determine if ALJs are acting within the authority granted to them.<\/span>\u00a0<\/span><\/p>\n

When viewed together, the general legal justification for an ALJ\u2019s ability to rule on as-applied constitutional matters comes from an agency\u2019s general ability to interpret their own statute.\u00a0 What authority do Minnesota agencies have to interpret their enabling statutes?\u00a0 Per the Minnesota Court of Appeals, \u201c\u200b\u200bQuestions of statutory interpretation are reviewed de novo.\u201d[35]<\/a> <\/span>They state, \u201c…a reviewing court affords substantial deference to an administrative agency’s interpretation of its own rules and regulations.”[36]<\/a><\/span>\u00a0When an agency’s authority is called into doubt, the reviewing court then independently reviews the agency\u2019s enabling statute.[37]<\/a> <\/span>\u00a0An agency has substantial deference to an agency\u2019s interpretation of its own rules and regulations from an Article VI court.\u00a0 The AGED\u2019s argument in <\/span>Boardwalk<\/span><\/i> then has a little more context, relying on substantial deference from an ALJ and questioning the underlying authority of ALJs to make those rulings.<\/span>\u00a0<\/span><\/p>\n

Are agencies afforded the same level of deference by ALJs as by Article VI judges?\u00a0 That question confused once again the role of ALJs versus Article VI judges.\u00a0 ALJs act as finders of fact and recommenders; Article VI judges act as reviewers and check executive power.\u00a0 Indeed, Minnesota has acknowledged that the agency decision-makers owe no deference to the ALJ\u2019s conclusions and recommendations.[38]<\/a><\/span>\u00a0Further, 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.<\/span>\u00a0<\/span><\/p>\n

Based on the Minnesota Administrative Procedure Act, \u201c…<\/span>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\u2026\u201d[39]<\/a>\u00a0<\/span>\u00a0 This is the analysis used in <\/span>Boardwalk<\/span><\/i>, that provisions in MAPA \u201cdescribe a broader role for administrative law judges in ensuring agency compliance with the law in specific cases \u2013 a body of law that includes statutory and constitutional provisions.\u201d[40]<\/a>\u00a0<\/span>\u00a0<\/span>Boardwalk<\/span><\/i> hung much of its decision on this plain meaning analysis but cannot stand alone as a justification.\u00a0 For one, ALJs are constrained in how they can achieve agency compliance by not hearing facial challenges, a restriction not stated in MAPA.\u00a0 Any as-applied restriction could similarly lurk between the lines if that restriction went unsaid.\u00a0 Further, per MAPA, the ALJ\u2019s analysis would end in compliance with the statute; however, the actions authorized by that statute were unconstitutional.\u00a0 If a law could be reasonably interpreted to allow an unconstitutional action, the ALJ\u2019s as-applied analysis would essentially border on a facial challenge.<\/span>\u00a0<\/span><\/p>\n

The Minnesota Constitution, like the US Constitution, contains a \u201ctake care\u201d clause when referring to the duties of the executive branch.[41]<\/a><\/span>\u00a0The governor and the executive branch \u201cshall take care that the laws be faithfully executed.\u201d[42]<\/a><\/span>\u00a0The governor and executive agencies are meant to ensure that their actions align with the Constitution.\u00a0 Suppose agencies are thus also bound by the \u201ctake care\u201d 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?\u00a0 Indeed, if they are meant to take \u201cNotice of the degree to which the agency has (i) documented its statutory authority to take the proposed action\u201d per MAPA. The Minnesota Constitution would fall into that analysis, with ALJs documenting the degree to which an agency has \u201ctaken care\u201d in its actions to abide by the Constitution.<\/span>\u00a0<\/span><\/p>\n

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?\u00a0 Would this \u201cas-applied\u201d power be a new rule they promulgated improperly?\u00a0 The question of whether \u201cX, Y, or Z\u201d 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.\u00a0 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]<\/a><\/span>\u00a0As an adjudicatory body, it makes sense that it would be its separate institution.\u00a0 Per MAPA, an agency is \u201cany 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.\u201d[44]<\/a><\/span>\u00a0OAH fits this definition, especially since an explicit exception is given to the judicial branch and tax courts.\u00a0 The silence on OAH speaks volumes.\u00a0 Based on this cursory review, an argument could be made that OAH is its agency.\u00a0 The Office of Administrative Hearing\u2019s 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]<\/a><\/span>\u00a0This would seem to be, while unspoken, how the ALJs at the Office of Administrative Hearings have approached their decisions in this area.\u00a0 In this light, Boardwalk\u2019s look at the plain meaning of their enabling statute seems to be on a firmer footing.\u00a0 If and when an Article VI judge makes a ruling on this matter, there is a high chance that the ALJs\u2019 interpretation of their statute and powers would be afforded some level of deference.<\/span>\u00a0<\/span><\/p>\n

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.<\/span>\u00a0<\/span><\/p>\n

VI. Conclusions<\/h2>\n

Questions of administrative law speak to the heart of our system of governance.\u00a0 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.\u00a0 While not perfect, it serves to better our form of government and improve how public institutions serve citizens.\u00a0 These questions cannot be taken lightly, and in their consideration, the legal and public factors and concerns must be weighed and given due consideration.\u00a0 If no simple answer is readily apparent, it is likely for a reason.\u00a0 If there is an answer, it likely stems from preexisting doctrines.\u00a0 There is a reason to interrogate these issues and seek clear answers about outstanding topics in administrative law.\u00a0 The administrative state and how administrative law is questioned more than ever at every level.\u00a0 It is for that reason that clarity on these issues is vital.<\/span>\u00a0<\/span><\/p>\n

A seemingly simple question of law is presented: can administrative law judges in Minnesota rule on whether or not an agency action is \u201cas-applied\u201d unconstitutional?\u00a0 It can hardly be considered an earth-shattering change, whatever the answer.\u00a0 It would not change an ALJ\u2019s power.\u00a0 It would not significantly constrain an agency head\u2019s ability to issue the final decision in a contested case.\u00a0 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.<\/span>\u00a0<\/span><\/p>\n

If it is a simple question, why is it an open question of law?\u00a0 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.\u00a0 Based on the plain reading of MAPA and the \u201ctake care\u201d clause, the power is likely there for ALJs and agency heads.\u00a0 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.<\/span>\u00a0<\/span><\/p>\n

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.\u00a0 ALJs have been, for all appearances, united in adopting the position they can rule on \u201cas-applied\u201d challenges.\u00a0 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.\u00a0 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.\u00a0 An Article VI judicial opinion on the question may take a long time to come, if ever.\u00a0 In the meantime, ALJs have made the rulings.\u00a0 Time will tell if they have the authority to do so.<\/span>\u00a0<\/span><\/p>\n

\n

[1]<\/a> Neeland v. Clearwater Mem\u2019l Hosp.<\/em>, 257 N.W.2d 366, 368 (Minn. 1977).
\n[2]<\/a> George Beck et al., Minnesota Administrative Procedure<\/em>, Ch. 11 \u00a7 11.5 (3d ed. 2014).
\n[3]<\/a> Minn. Const. art. V, \u00a7 3.
\n[4]<\/a> In re NorthMet Project Permit to Mine Application<\/em>, 959 N.W.2d 731 (Minn. 2021).
\n[5]<\/a> George Beck et al., Minnesota Administrative Procedure<\/em>, Ch. 4 \u00a7 4.5 (3d ed. 2014).
\n[6]<\/a> Id<\/em>.
\n[7]<\/a> Id<\/em>.
\n[8]<\/a> Id<\/em>.
\n[9]<\/a> Id<\/em>.
\n[10]<\/a> Minn. Stat. \u00a7 245A.03 subd. 1 (2023).
\n[11]<\/a> Minn. Stat. \u00a7 245A.05(b) (2023).
\n[12]<\/a> Minn. Stat. \u00a7 148B.5901 (2023).
\n[13]<\/a> Minn. Stat. \u00a7 245A.08 (2023).
\n[14]<\/a> In re the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC<\/em>, OAH 8-2400-37252, RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY DISPOSITION (Minn. Off. Admin. Hearings Mar. 26, 2021).
\n[15]<\/a> Id<\/em>. at 10.
\n[16]<\/a> Id<\/em>. at 10-11.
\n[17]<\/a> George Beck et al., Minnesota Administrative Procedure<\/em>, Ch. 11 \u00a7 11.5 (3d ed. 2014).
\n[18]<\/a> Neeland v. Clearwater Mem’l Hosp.<\/em>, 257 N.W.2d 366 (Minn. 1977).
\n[19]<\/a> In re License in re Rochester Ambulance Serv., Div. of Hiawatha Aviation, Inc.<\/em>, 500 N.W.2d 495 (Minn. Ct. App. 1993).
\n[20]<\/a> In re the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC<\/em>, OAH 8-2400-37252, RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY DISPOSITION (Minn. Off. Admin. Hearings Mar. 26, 2021).
\n[21]<\/a> Id<\/em>.
\n[22]<\/a> Id<\/em>.
\n[23]<\/a> Id.<\/em>
\n[24]<\/a> Id.<\/em>
\n[25]<\/a> Id.<\/em>
\n[26]<\/a> In re the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC<\/em>, OAH 8-2400-37252, RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY DISPOSITION (Minn. Off. Admin. Hearings Mar. 26, 2021).
\n[27]<\/a> Id<\/em>.
\n[28]<\/a> Smith v. Willis<\/em>, 415 So. 2d 1331, 1336 (Fla. Dist. Ct. App. 1982).
\n[29]<\/a> Id<\/em>.
\n[30]<\/a> Jackson Cnty. Educ. Ass\u2019n v. Grass Lake Cmty. Sch. Bd. of Educ.<\/em>, 95 Mich. App. 635, 641, 291 N.W.2d 53, 56 (1979).
\n[31]<\/a>Marykay Foy, The Authority of an Administrative Agency to Decide Constitutional Issues: Richardson v. Tennessee Board of Dentistry<\/em>, 17 J. Nat\u2019l Ass\u2019n Admin. L. Judiciary (1997).
\n[32]<\/a> Id.<\/em> at 174-75.
\n[33]<\/a> Id.<\/em> at 181.
\n[34]<\/a> Stephen Wunderlich v. Joseph Walsh<\/em>, OAH 68-0325-31872, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER (Minn. Off. Admin. Hearings Oct. 23, 2014).
\n[35]<\/a> In re Risk Level Determination of R.B.P.<\/em>, 640 N.W.2d 351 (Minn. Ct. App. 2002).
\n[36]<\/a> Id<\/em>.
\n[37]<\/a> Id<\/em>.
\n[38]<\/a> In the Matter of the Sirs Appeal by Trinity Home Health Care Services and Etyane Ayana<\/em>, OAH 5-1800-36178 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION ON REMAND (Minn. Off. Admin. Hearings Aug. 30, 2021).
\n[39]<\/a> Minn. Stat. \u00a7 14.50 (2023).
\n[40]<\/a> In re the Enforcement Action Against Liquor License No. 26788, Issued to Boardwalk Bar & Grill, LLC<\/em>, OAH 8-2400-37252, RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY DISPOSITION (Minn. Off. Admin. Hearings Mar. 26, 2021).
\n[41]<\/a> Minn. Const. art. V, \u00a7 3.
\n[42]<\/a> Id<\/em>.
\n[43]<\/a> Minn. Stat. \u00a7 14.53, 14.48 (2023).
\n[44]<\/a> Minn. Stat. \u00a7 14.02 (2023).
\n[45]<\/a> Minn. Stat. \u00a7 14.51 (2023).<\/p>\n","protected":false},"excerpt":{"rendered":"

Watching the Waters: Constitutional Rulings of Administrative Law Judges in Minnesota Caleb Wootan is a 3L at Mitchell Hamline School of Law.<\/p>\n

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