Summary
In Cupps v. Toledo (1961), 172 Ohio St. 536 [18 O.O.2d 82], paragraph two of the syllabus, we held that "[t]he appeal on questions of law and fact from the affirmance by a civil service commission of a municipality of an order of dismissal of a member of the police department * * * is a trial de novo * * *."
Summary of this case from Chupka v. SaundersOpinion
No. 36987
Decided December 27, 1961.
Civil service — Dismissal of member of police department — Appeal to municipal civil service commission — Burden of proving truth of charges — Appeal from commission's order of affirmance — Trial de novo — Burden of proof on appointing authority — Degree of evidence.
1. In an "appeal" from an order of dismissal of a member of a police department to the civil service commission of the municipality, the burden is upon the appointing authority to prove by a preponderance of the evidence the truth of the charges filed.
2. The appeal on questions of law and fact from the affirmance by a civil service commission of a municipality of an order of dismissal of a member of the police department, taken pursuant to Section 143.27, Revised Code, is a trial de novo, and the burden in such trial is upon the appointing authority to prove by a preponderance of the evidence the truth of the charges theretofore filed with such commission.
APPEAL from the Court of Appeals for Lucas County.
Although, as will be seen in the discussion of the question raised herein, there is some confusion as to who should be labelled "plaintiff" and who "defendant" in this litigation, the references in this opinion will be to the parties as they have been designated throughout this litigation. Thus, the plaintiff is the member of the Toledo police department, appealing from an order of dismissal from such department, and the principal defendant is the city of Toledo.
Following receipt of the order of dismissal from the Toledo police department issued by the Director of Public Safety of the City of Toledo, plaintiff filed with the civil service commission of the city an explanation and answer to the charges contained in the order of dismissal. A hearing was conducted by the commission, and the dismissal order was affirmed.
Thereupon, plaintiff appealed to the Court of Common Pleas of Lucas County. That court sustained a motion of the city to strike the notice of appeal, on the ground that the Charter of the City of Toledo provides that "the commission's judgment in the matter shall be final."
Upon appeal to the Court of Appeals for Lucas County, the judgment of the Court of Common Pleas was reversed and the cause remanded to the trial court for further proceedings upon the appeal on questions of law and fact. This court, in Cupps v. City of Toledo, 170 Ohio St. 144, affirmed the judgment of the Court of Appeals, holding that the provision of the city charter so far as it attempts to make the decision of the civil service commission final conflicts with Section 143.27, Revised Code, and that under such section a member of a police or fire department is entitled to an appeal on questions of law and fact from an affirmance of a dismissal order by a municipal civil service commission.
Upon remand to the Court of Common Pleas of Lucas County, that court held, following a trial of the issues, in its journal entry, as follows:
"This cause came on for trial on the 23rd, 24th and 25th of March, 1960, as an appeal from a ruling of the civil service commission. The court finds that the appellant has not sustained his burden of proof. Therefore, the appeal is ordered dismissed."
The Court of Appeals, on appeal from the above ruling, found the Court of Common Pleas to be in error in placing the burden of proof on the plaintiff and reversed the judgment of the Court of Common Pleas.
The cause is before this court upon the allowance of a motion to certify the record.
Mr. Dan H. McCullough and Mr. Norman C. Platz, for appellee.
Mr. Louis R. Young, director of law, Mr. John J. Burkhart and Mr. Nathan Greenberg, for appellants.
The assignments of error raise but a single question for our determination: Upon whom does the burden of proof rest in an appeal on questions of law and fact to the Court of Common Pleas from the affirmance by a municipal civil service commission of an order of dismissal of a member of the police department?
Section 143.27, Revised Code, clearly gives the right of an appeal on questions of law and fact to, or a trial de novo in, the Court of Common Pleas. Cupps v. City of Toledo, supra.
It has long been the rule in Ohio that upon an appeal on questions of law and fact the appellate court takes up the matter where the court below took it up and proceeds in respect to all phases thereof as if the cause had never been tried below. It is in all respects a trial de novo. Grant v. Admr. of Ludlow, 8 Ohio St. 1; Mason v. Alexander, 44 Ohio St. 318; Kiriakis v. Fountas, 109 Ohio St. 553; Connelly, Treas., v. Balkwill, 160 Ohio St. 430.
The term, "trial de novo," of course, denotes some previous trial. In the case of a dismissed member of a police department whose dismissal was sustained after a hearing by the municipal civil service commission, was such hearing a previous trial? Did the "trial" take place before the appointing authority or before the civil service commission? The answers to these questions must be found in the nature of the proceedings before the civil service commission.
It is argued by the city that, since the action of the appointing authority in dismissing the plaintiff must be accorded every presumption of legality, the plaintiff, if he would avoid the effect of the order of dismissal, must carry the burden before the civil service commission of showing that his dismissal is sufficient to establish a prima facie case and, in the absence of any evidence on behalf of the plaintiff to show a wrongful dismissal, he will lose. From this the city then argues that plaintiff, having the burden of proof below (before the civil service commission), has the same burden in a trial de novo in the Court of Common Pleas.
There is considerable force in such argument if the procedure before the civil service commission is, in reality, an appeal. We do not, however, believe that either the philosophy of civil service legislation, generally, or the provisions of Section 143.27, Revised Code, specifically, permit of that conclusion.
The general philosophy of civil service is reflected in the opening words of Section 143.27, Revised Code, which are as follows: "The tenure of every officer or employee in the classified service * * * shall be during good behavior and efficient service * * *." To be removed from that service as a result of certain specified actions, charges must be prepared and filed with the civil service commission, and the officer charged is entitled to an opportunity to explain and answer those charges. If the officer involved so desires, he may suffer a "default judgment" to be entered against him by failing to explain or answer. If, however, he chooses to contest the matter he is entitled to a hearing before the civil service commission. Although designated as an "appeal" in the statute, it is our opinion that the statute contemplates a "trial" before the civil service commission. The officer is brought to "trial" by the charges theretofore filed against him. In this respect the charges contained in the order of dismissal and the explanation or answer of the officer are much like the petition and answer in an ordinary civil action or the indictment and plea in a criminal action. The city is thus in the position of a plaintiff and the officer in that of a defendant.
It is a truism that "he who alleges must prove." The city, in a dismissal proceeding before the municipal civil service commission, alleges certain misconduct warranting dismissal of a civil servant. Having made the allegations, it devolves upon the city to prove them. The city, having the burden of proof before the civil service commission, must likewise carry the burden in an appeal on questions of law and fact under the provisions of Section 143.27, Revised Code.
Since this court is not required to, and ordinarily does not, weigh the evidence, we express no opinion as to whether the evidence offered on behalf of the city in the Court of Common Pleas was sufficient to maintain the burden imposed upon it.
But since the judgment of the Court of Appeals is being affirmed herein and since the matter must be remanded to the Court of Common Pleas for a new trial, we deem it appropriate to concur in the conclusion of the Court of Appeals that, inasmuch as this is a civil action, the quantum of proof required to maintain the burden of proof is a preponderance of the evidence.
Judgment affirmed.
ZIMMERMAN, acting C.J., YOUNGER, TAFT, MATTHIAS, HERBERT and O'NEILL, JJ., concur.
ZIMMERMAN, J., sitting in the place and stead of WEYGANDT, C.J.
YOUNGER, J., of the Third Appellate District, sitting by designation in the place and stead of ZIMMERMAN, J.