                 SUPREME COURT OF MISSOURI
                                             en banc

JUSTIN D. O’BRIEN,                               )    Opinion issued December 10, 2019
                                                 )
                                Appellant,       )
                                                 )
v.                                               )    No. SC97656
                                                 )
DEPARTMENT OF PUBLIC SAFETY,                     )
                                                 )
                                Respondent.      )


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

         Justin O’Brien (“O’Brien”) appeals the circuit court’s judgment affirming the

decision of the Administrative Hearing Commission (“AHC”), which found cause to

discipline his license as a peace officer, and the subsequent order of the Missouri Director

of the Department of Public Safety (“Director”), which permanently revoked his license.

O’Brien asserts two challenges: (1) that section 590.080, 1 under which the AHC may find

that cause for discipline exists if the licensee has “committed any criminal offense,

whether or not a criminal charge has been filed” is invalid because it violates principles

of separation of powers embodied in article II, section 1 of the Missouri Constitution; and


1
     All statutory references are to RSMo Supp. 2012 unless otherwise noted.
(2) that Director’s order revoking his license is not supported by competent and

substantial evidence. This Court has exclusive appellate jurisdiction under article V,

section 3 because the case involves the constitutional validity of a statute. The judgment

is affirmed.

                                       Background

       On September 26, 2013, O’Brien, a licensed peace officer, engaged in an

argument and physical altercation with his wife (from whom he now is divorced) because

he believed she was having an affair. O’Brien pushed her into a wall, onto a sofa and

down to the floor. He choked her and caused her to feel threatened and in danger of

physical injury. At times during the fight, O’Brien’s wife’s four-year-old child was

present. The fight ended only after O’Brien’s wife sent the child to the basement to wake

the wife’s brother. O’Brien’s wife sustained bruising and soreness as a result of

O’Brien’s actions. On June 3, 2014, O’Brien pleaded guilty to peace disturbance in

violation of section 574.010, RSMo 2000. The imposition of sentence was suspended,

and O’Brien successfully completed his probation.

       Thereafter, Director sought to discipline O’Brien’s license as a peace officer. The

disciplinary procedure for peace officers is set forth in section 590.080, which provides:

       2. When the director has knowledge of cause to discipline a peace officer
       license pursuant to this section, the director may cause a complaint to be
       filed with the administrative hearing commission, which shall conduct a
       hearing to determine whether the director has cause for discipline, and
       which shall issue findings of fact and conclusions of law on the matter. The
       administrative hearing commission shall not consider the relative severity
       of the cause for discipline or any rehabilitation of the licensee or otherwise
       impinge upon the discretion of the director to determine appropriate
       discipline when cause exists pursuant to this section.


                                             2
        3. Upon a finding by the administrative hearing commission that cause to
        discipline exists, the director shall, within thirty days, hold a hearing to
        determine the form of discipline to be imposed and thereafter shall probate,
        suspend, or permanently revoke the license at issue. If the licensee fails to
        appear at the director’s hearing, this shall constitute a waiver of the right to
        such hearing.

§ 590.080.2-.3.

        Following this procedure, Director (having knowledge of cause to discipline

O’Brien’s license under section 590.080.1) caused a complaint to be filed with the AHC.

The AHC held a hearing and issued findings and conclusions stating there was cause for

discipline pursuant to section 590.080.1(2) 2 because O’Brien committed

two criminal offenses, i.e., peace disturbance in violation of section 574.010, RSMo

2000, and domestic assault in the third degree in violation of section 565.074. The AHC



2
    Subsection 1 of section 590.080 provides:
        The director shall have cause to discipline any peace officer licensee who:
        (1) Is unable to perform the functions of a peace officer with reasonable
        competency or reasonable safety as a result of a mental condition, including
        alcohol or substance abuse;
        (2) Has committed any criminal offense, whether or not a criminal charge has
        been filed;
        (3) Has committed any act while on active duty or under color of law that
        involves moral turpitude or a reckless disregard for the safety of the public or any
        person;
        (4) Has caused a material fact to be misrepresented for the purpose of obtaining or
        retaining a peace officer commission or any license issued pursuant to this
        chapter;
        (5) Has violated a condition of any order of probation lawfully issued by the
        director; or
        (6) Has violated a provision of this chapter or a rule promulgated pursuant to this
        chapter.
[Emphasis added.]


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did not consider “the relative severity of the cause for discipline or any rehabilitation of

the licensee” because section 590.080.2 makes it plain that the determination of the

appropriate discipline is a matter solely within Director’s discretion.

       Following the AHC’s decision that there was cause to discipline O’Brien’s license,

Director held the disciplinary hearing required by section 590.080.3. O’Brien testified

regarding his military service, which included two tours in Iraq, his experience as a peace

officer, his current employment as a police dispatcher, and mental health treatment he

underwent for post-traumatic stress disorder. The police chief in Trimble testified that

O’Brien had been commissioned as a reserve officer there, that the chief intended to

make him a full-time officer, and that he had no questions concerning O’Brien’s values,

morals, or integrity. A 14-year police veteran and O’Brien’s former supervisor testified

positively regarding O’Brien’s character and said the circumstances that led to the

disciplinary proceedings were not typical of O’Brien and he had no concerns with

O’Brien remaining a peace officer. Following the hearing, Director issued an order

permanently revoking O’Brien’s license as a peace officer pursuant to section 590.080.3.

       O’Brien timely filed a Petition for Judicial Review in the Clinton County circuit

court. The circuit court affirmed the AHC’s decision and Director’s order, and O’Brien

now appeals that judgment.

                                          Analysis

I.     Separation of Powers

       O’Brien claims section 590.080.2 is unconstitutional because it violates the

principles of separation of powers set forth in article II, section 1of the Missouri


                                              4
Constitution 3 in that this statute permits the AHC – rather than a court – to determine

whether a peace officer has “committed [a] criminal offense” and, therefore, whether

there is cause to discipline the officer’s license. Because O’Brien’s claim fundamentally

misconstrues the nature of the AHC’s finding, this claim is rejected and the judgment of

the circuit court is affirmed. 4

        “Constitutional challenges to a statute are reviewed de novo.” St. Louis Cnty. v.

Prestige Travel, Inc., 344 S.W.3d 708, 712 (Mo. banc 2011) (quotation marks omitted).

“An act of the legislature carries a strong presumption of constitutionality.” Id.

(quotation marks omitted). “The person challenging the validity of the statute has the

burden of proving the act clearly and undoubtedly violates the constitution.” Id.

(quotation marks omitted).

        O’Brien argues section 590.080.1(2) violates the separation of powers provision

because it authorizes an executive branch agency (i.e., the AHC) to determine whether a

peace officer has “committed any criminal offense,” which O’Brien contends is a

determination only courts can make. The fatal flaw in this argument, however, is that it



3
    Article II, section 1 of the Missouri Constitution 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.
4
  Ordinarily, this Court reviews the agency decision rather than that of the circuit court. Bird v.
Mo. Bd. of Architects, Pof’l Eng’rs, Prof’l Land Surveyors & Landscape Architects, 259 S.W.3d
516, 520 (Mo. banc 2008). With respect to O’Brien’s constitutional challenge to section
590.080.2, however, this Court reviews the circuit court judgment finding the statute

                                                  5
misperceives the nature of the AHC’s role under that statute. Under section

590.080.1(2), the AHC is authorized only to make a particular factual determination, i.e.,

whether a peace officer has engaged in conduct that Missouri statutes identify as a

criminal offense. It cannot convict the officer of that offense, nor can it subject the

officer to the criminal punishments applicable to that offense. Only courts can do these

things. Nothing in section 590.080.1(2) authorizes the AHC to intrude upon the

exclusive province of the courts. Accordingly, nothing in section 590.080.1(2) violates

the separation of powers provision.

       There is nothing particularly novel in this distinction. In Younge v. State Board of

Registration for Healing Arts, 451 S.W.2d 346, 348-49 (Mo. 1969), this Court rejected a

licensee’s argument that state and federal protections against double jeopardy would not

permit the Board to discipline his license for conduct that also had been the basis of a

criminal charge on which he was acquitted by a jury. The Court noted the purpose of the

statute authorizing revocation of the physician’s license, like all licensing statutes, was to

protect the public by safeguarding public health, not to impose punishment on the

physician. Id. at 349. Specifically, when rejecting the double jeopardy claim, the Court

held: “These revocation proceedings are not penal, they are not ‘quasi-criminal,’ they do

not contemplate ‘punitive’ sanctions and the provisions against double jeopardy do not

apply. The appellant is not being tried again for the same ‘offense.’ He is not, in fact,

being tried for any offense.’” Id. (emphasis added).


constitutional because the AHC lacks authority to decide whether a statute is unconstitutional.
Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 957 (Mo. banc 1999).


                                                6
       O’Brien relies heavily on City of Springfield v. Belt, 307 S.W.3d 649, 653 (Mo.

banc 2010), in which this Court held the City could not create an administrative system to

adjudicate traffic light violations. There was no constitutional challenge in Belt,

however, and it does not support O’Brien’s argument. Under section 479.040, RSMo

2000, the City had the option of having these ordinance violations tried in its municipal

division of the circuit court if it chose to create one, or in an associate division of the

circuit court if it did not. Id. at 652. Because no statute gave it the option of creating an

administrative procedure for adjudicating these cases, its efforts to do so were void. Id. at

653.

       In the present case, on the other hand, section 590.080.1(2) expressly gives the

AHC authority to determine if a peace officer has engaged in conduct that constitutes a

criminal offense as one of several bases for finding that cause exists for Director to

discipline the officer’s license. Section 590.080.1(2) is wholly consistent with the AHC’s

fact-finding role and, because it does not authorize the AHC to adjudicate the licensee’s

criminal liability for that conduct or to impose criminal punishments, nothing in that

statute violates the separation of powers provision.

II.    Competent and Substantial Evidence

       In his second point relied on, O’Brien argues the Director erred in revoking his

license because:

       the decision is unsupported by competent and substantial evidence upon the whole
       record, reviewable under § 536.140.2(3) RSMo[], in that professional discipline is
       not punishment and there is uncontroverted evidence in the record that O’Brien’s
       prior service, psychological rehabilitation, and knowledge, skills and abilities
       make him fit to continue in the profession.


                                               7
Even though this point presents only the claim that there was insufficient competent and

substantial evidence upon the whole record to support Director’s decision to revoke his

license, O’Brien devotes most of the argument portion of his brief on this point – not to

the idea that the evidence failed to support the AHC’s finding he had committed a

criminal offense – but to the idea that it was an abuse of discretion for Director to

permanently revoke his license rather than impose some lesser discipline. 5 These are

separate and distinct arguments, and the latter cannot be argued under a point relied on

asserting the former. 6 As a result, the only argument properly before the Court is

O’Brien’s claim that Director’s decision was not supported by competent and substantial

evidence on the record as a whole.

       In reviewing this claim, this Court reviews Director’s (and the AHC’s) decision,

not the circuit court’s judgment. Bird, 259 S.W.3d at 520. The Court defers to credibility



5
   In fact, O’Brien concludes the argument in support of his second point relied on with the
following: “On this record, and considering Boyd, Wasem, Gard, and the other cases cited in this
section, the decision to permanently revoke O’Brien’s license was an abuse of discretion.” Brief
at 28. See also Brief at 24 (“To determine if the penalty assigned by the agency is an abuse of
discretion, a reviewing court must look to see if the agency’s decision is against the logic of the
circumstances, and indicates a, lack of careful consideration.”) (quotation marks omitted).
6
   Bird is not to the contrary. There, even though the licensee’s petition for judicial review
merely parroted the language of section 621.145 without any facts or particularity as to the
arguments being asserted, this Court held “Bird’s petition and other submissions provided the
circuit court with a sufficient basis upon which to review the decision of the AHC and the board.
That is all that section 536.110 requires.” Bird, 259 S.W.3d at 522 (citation omitted). Indeed,
not only did Bird not hold that the presentation requirements for points relied on in Rule 84.04(d)
were inapplicable to appeals involving judicial review of administrative decisions, this Court in
Bird specifically cited the role that points relied on and Rule 84.04(d) play in identifying and
narrowing the issues in such appeals. Id. at 521-22 (“After the circuit court judgment is
rendered, the court’s decision can be appealed as in other civil cases. On such appeals, the
appealing party sets forth the legal issues he wishes to raise in the ‘points relied on’ section of

                                                8
determinations made at that agency level; it may not reweigh the evidence and must not

substitute its own judgment or discretion for that licensing agency. Psychcare Mgmt.,

Inc. v. Dep’t of Soc. Servs., Div of Med. Servs., 980 S.W.2d 311, 312 (Mo. banc 1998).

         Before Director could decide whether to revoke O’Brien’s license or impose some

lesser discipline, the AHC needed to have found that there was cause for discipline.

§ 590.080.2-.3. The AHC found O’Brien committed the offense of peace disturbance in

violation of section 574.010, RSMo 2000, 7 and the offense of third-degree domestic

assault in violation of section 565.074. 8 These findings were supported by competent and

substantial evidence on the record as a whole. First, there was evidence that O’Brien

committed the offense of peace disturbance because the evidence showed he knowingly

and unreasonably disturbed or alarmed his wife by engaging in a physical altercation or



the appellate brief as required by Rule 84.04(d). The appellate court, as noted, then reviews the
decision of the AHC and the board, not the judgment of the circuit court.”).
7
  Under section 574.010.1, RSMo 2000, a person commits the offense of peace disturbance if
“[h]e unreasonably and knowingly disturbs or alarms another person or persons by …
[f]ighting[.]”
8
    Under section 565.074.1:
         A person commits the crime of domestic assault in the third degree if the act
         involves a family or household member, including any child who is a member of
         the family or household, as defined in section 455.010 and:
         (1) The person attempts to cause or recklessly causes physical injury to such
         family or household member; or
         …
         (3) The person purposely places such family or household member in
         apprehension of immediate physical injury by any means; or
         …
         (5) The person knowingly causes physical contact with such family or household
         member knowing the other person will regard the contact as offensive[.]


                                                 9
“fight” with her, including hitting her, choking her, and pushing her down several times. 9

The AHC found O’Brien’s testimony that his wife was the aggressor was not credible.

Second, this same evidence shows that O’Brien committed the offense of third-degree

domestic assault by attempting to cause or recklessly causing his wife physical injury

when he choked and pushed her.

       Once the AHC found cause for disciplining O’Brien’s license, section 590.080.2

provides Director has discretion to determine the appropriate discipline, and section

590.080.3 provides Director “shall probate, suspend, permanently revoke the license at

issue.” As noted above, most of O’Brien’s argument is devoted to his contention that

Director’s decision was an abuse of discretion, i.e., whether Director “should” have

imposed a lesser discipline rather than permanently revoking his license. But the

question in a competent and substantial evidence challenge, which is the only claim

properly before the Court, is not whether Director “should” have imposed a lesser

discipline. Instead, the question is whether Director “could” impose permanent

revocation based on the record before him. The answer is yes.

       O’Brien did not merely commit a criminal offense. Suspicious that his wife was

unfaithful, O’Brien resorted to violence against her. He attacked his wife in their home


9
   O’Brien’s plea of guilty to the charge of peace disturbance is evidence because it constitutes a
declaration against his interest. Nichols v. Blake, 418 S.W.2d 188, 190 (Mo. 1967).
Nevertheless, because the wife’s testimony and other evidence before the AHC regarding the
fight was competent and substantial evidence to support a finding O’Brien committed the offense
of peace disturbance without regard to O’Brien’s guilty plea, the Court does not need to decide
whether O’Brien’s guilty plea alone precludes him from relitigating the issue of whether he
committed that offense notwithstanding cases such as Director, Department of Public Safety v.
Bishop, 297 S.W.3d 96, 99-100 (Mo. App. 2009) (concluding collateral estoppel did not apply
under similar facts).


                                                10
and in the presence of others, including a small child. Disciplinary proceedings against

licensees are – first and foremost – about protecting the public. Younge, 451 S.W.2d at

349. Nowhere is this obligation more important than in the licensing of peace officers.

Their profession is intensely demanding, and it requires officers to demonstrate

extraordinarily good judgment reliably and a high degree of control over one’s emotions

continually. Confrontations with members of the public are not merely possible, they are

all too often a daily feature of the work of a peace officer. Among the most essential

attributes a peace officer must possess are the ability to decide – quickly and correctly –

whether and when such a confrontation must escalate to the use of force, and the ability

to calibrate accurately the least amount of force necessary to protect the officer, the other

party, and the public in such a confrontation. Faced with the responsibility of

disciplining O’Brien’s license and with the competent and substantial evidence that

O’Brien utterly and completely failed to display any of the foregoing attributes in the

attack on his wife, there was ample competent and substantial evidence on the record as a

whole for Director to conclude that continuing to license O’Brien as a peace officer

would not adequately protect the public. 10




10
    Nothing in Boyd v. State Board of Registration for the Healing Arts, 916 S.W.2d 311 (Mo.
App. 1995), Gard v. State Board of Registration for the Healing Arts, 747 S.W.2d 726 (Mo.
App. 1988), or Wasem v. Missouri Dental Board, 405 S.W.2d 492 (Mo. App. 1966), relied upon
by O’Brien, compels a contrary conclusion. In such a highly fact-dependent analysis as this
must necessarily be, such cases – which involve dissimilar professions and dissimilar crimes
(particularly crimes involving no similar degree of violence), in which different agency heads
exercised their discretion in wholly dissimilar environments in order to meet their shared
obligation to adequately safeguard the public – are of little persuasive value.


                                              11
       To be clear, this was not the only rational conclusion that Director could have

drawn. Director could have credited O’Brien’s self-serving testimony concerning his

mental health issues, his treatment, and his other efforts at self-improvement. Director

could have relied upon the testimony from the police chief and O’Brien’s former

supervisor that they were not concerned with O’Brien’s fitness to serve. But Director did

not have to do so and, in the end, Director chose not to, and it was on Director’s

shoulders that the obligation to protect the public rested. 11

                                           Conclusion

       For the reasons set forth above, the judgment of the circuit court, and the decisions

of the AHC and Director, are affirmed.


                                                     _________________________________
                                                     Paul C. Wilson, Judge
All concur.




11
    Though not properly before this Court because O’Brien failed to assert it in a point relied on
in his brief, the foregoing analysis also explains why it was not an abuse of discretion for the
Director to revoke O’Brien’s license. The authority to choose, after careful deliberation,
between two reasonable alternatives, both of which are supported by the evidence, is the essence
of discretion, and this Court will not substitute its choice for the choice made by the agency head
in which Missouri statutes expressly vest that discretion.


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