536.073. Depositions, use of--how taken--discovery, when available--enforcement--administrative hearing commission to make rules for depositions by stipulation--rules subject to suspension by joint co
Depositions, use of--how taken--discovery, whenavailable--enforcement--administrative hearing commission to makerules for depositions by stipulation--rules subject to suspensionby joint committee on administrative rules.
536.073. 1. In any contested case before an agency created by theconstitution or state statute, any party may take and use depositions in thesame manner, upon and under the same conditions, and upon the same notice, asis or may hereafter be provided for with respect to the taking and using ofdepositions in civil actions in the circuit court; provided, that anycommission which may be required shall be sued out of the circuit court or theoffice of the clerk thereof, within and for the county where the headquartersof the agency is located or where the hearing is to be held; and providedfurther, that no commissioner shall be appointed for the taking in this stateof depositions.
2. In addition to the powers granted in subsection 1 of this section,any agency authorized to hear a contested case may make rules to provide thatthe parties may obtain all or any designated part of the same discovery thatany Missouri supreme court rule provides for civil actions in circuit court.The agency may enforce discovery by the same methods, terms and conditions asprovided by supreme court rule in civil actions in the circuit court. Exceptas otherwise provided by law, no agency discovery order which:
(1) Requires a physical or mental examination;
(2) Permits entrance upon land or inspection of property withoutpermission of the owner; or
(3) Purports to hold any person in contempt; shall be enforceable except upon order of the circuit court of the county inwhich the hearing will be held or the circuit court of Cole County at theoption of the person seeking enforcement, after notice and hearing.
3. The administrative hearing commission shall adopt rules providing forinformal disposition of a contested case by stipulation, consent order, agreedsettlement or by disposition in the nature of default judgment, judgment onthe pleadings, or summary judgment. No such rules shall be made by theadministrative hearing commission under this provision except in accordancewith section 536.021 and after a public hearing.
4. No rule or portion of a rule promulgated under the authority of thischapter shall become effective until it has been approved by the jointcommittee on administrative rules in accordance with the procedures providedherein, and the delegation of the legislative authority to enact law by theadoption of such rules is dependent upon the power of the joint committee onadministrative rules to review and suspend rules pending ratification by thesenate and the house of representatives as provided herein.
5. Upon filing any proposed rule with the secretary of state, the filingagency shall concurrently submit such proposed rule to the committee, whichmay hold hearings upon any proposed rule or portion thereof at any time.
6. A final order of rulemaking shall not be filed with the secretary ofstate until thirty days after such final order of rulemaking has been receivedby the committee except as provided in this subsection. The committee mayhold one or more hearings upon such final order of rulemaking during thethirty-day period. If the committee does not disapprove such order ofrulemaking within the thirty-day period, the filing agency may file such orderof rulemaking with the secretary of state and the order of rulemaking shall bedeemed approved. Contrary provisions of the law notwithstanding, if thecommittee approves a proposed rule prior to the expiration of the period forreview, it shall notify the filing agency and the secretary of state at whichpoint the final order of rulemaking may be filed.
7. The committee may, by majority vote of the members, suspend the orderof rulemaking or portion thereof by action taken prior to the filing of thefinal order of rulemaking only for one or more of the following grounds:
(1) An absence of statutory authority for the proposed rule;
(2) An emergency relating to public health, safety or welfare;
(3) The proposed rule is in conflict with state law;
(4) A substantial change in circumstance since enactment of the law uponwhich the proposed rule is based;
(5) The proposed rule is arbitrary and capricious.
8. If the committee disapproves any rule or portion thereof, the filingagency shall not file such disapproved portion of any rule with the secretaryof state and the secretary of state shall not publish in the Missouri Registerany final order of rulemaking containing the disapproved portion.
9. If the committee disapproves any rule or portion thereof, thecommittee shall report its findings to the senate and the house ofrepresentatives. No rule or portion thereof disapproved by the committeeshall take effect so long as the senate and the house of representativesratify the act of the joint committee by resolution adopted in each housewithin thirty legislative days after such rule or portion thereof has beendisapproved by the joint committee.
10. Upon adoption of a rule as provided herein, any such rule or portionthereof may be suspended or revoked by the general assembly either by bill or,pursuant to section 8, article IV of the constitution, by concurrentresolution upon recommendation of the joint committee on administrative rules. The committee shall be authorized to hold hearings and make recommendationspursuant to the provisions of section 536.037. The secretary of state shallpublish in the Missouri Register, as soon as practicable, notice of thesuspension or revocation.
(L. 1957 p. 748, A.L. 1985 S.B. 5, et al., A.L. 1989 H.B. 143, A.L. 1995 S.B. 3)CROSS REFERENCE:
Workers' compensation cases, this section not deemed to govern discovery between parties, RSMo 287.811
(1998) Administrative agencies created by home rule charter cities are not agencies created by the constitution or statute and the administrative procedure act does not apply. State ex rel. Young v. City of St. Charles, 977 S.W.2d 503 (Mo.banc).