Adams v. Marshall

• Decision Date: 14 July 1973
• Docket Number: No. 46866,46866
• Citation: 512 P.2d 365,212 Kan. 595
• Parties: William F. ADAMS, Appellee, v. Ivan MARSHALL et al., Appellants.
• Court: Kansas Supreme Court

Page 365

512 P.2d 365

212 Kan. 595

William F. ADAMS, Appellee, v. Ivan MARSHALL et al., Appellants.

No. 46866.

Supreme Court of Kansas.

July 14, 1973.

Syllabus by the Court

1. The term 'quasi-judicial' is applied to administrative boards or officers empowered to investigate facts, weigh the evidence, draw conclusions as a basis for official actions and exercise discretion of a judicial character. (Following Thompson v. Amis, 208 Kan. 658, 493 P.2d 1259.)

2. Where an administrative body acts in a quasi-judicial capacity, the constitutional requirements of due process are applicable to proceedings had before it.

3. In conducting an appeal by a city employee from a decision of the Leavenworth City Manager, taken pursuant to the ordinances of that city, members of the Civil Service Commission are acting in a quasi-judicial capacity.

4. The right to examine and cross-examine witnesses testifying at an administrative hearing of a quasi-judicial character is an important requirement of due process.

5. The constitutional right of cross-examination of witnesses is an elementary component of judicial fairness and may not be so arbitrarily restricted or limited as to preclude a full and complete disclosure of the facts.

6. Where an administrative agency exercising quasi-judicial powers imposes an arbitrary time limit on cross-examination of witnesses prior to the time a hearing has been commenced, its action constitutes an impermissible infringement on the constitutional right of cross-examination.

7. In general, proceedings of a judicial nature which are held behind closed doors and concealed from public scrutiny are repugnant to our system of justice.

8. An administrative hearing which is quasi-judicial in nature must be full, fair, open and impartial, and due process standards are to be followed.

9. The remedy of mandamus is available for the purpose of compelling the performance of a specified and clearly defined duty imposed by law.

10. The issuance of an order of mandamus is discretionary; the order is not to be issued as a matter or right nor unless the defendant's legal duty is plain.

11. An order of mandamus directed to an administrative agency exercising quasi-judicial functions will issue only at the instance of a party who has a clear right to demand performance of the act he seeks to enforce.

12. As a general rule it is only where a demand has been made and performance refused that an action in mandamus may be maintained, but an exception to the rule obtains where a demand would be fruitless and unavailing.

13. The record is examined in an action of mandamus to compel members of the Civil Service Commission of Leavenworth, Kansas, to accord to the plaintiff his due process rights to a public hearing and to the examination and cross-examination of witnesses appearing at the hearing, and for reasons set forth in the opinion it is held the trial court did not err in issuing the order of mandamus and in directing the Commission to admit members of the public and accredited members of the press to the hearing, except during its deliberations, to permit such examination and cross-examination of witnesses as may be required for full disclosure of the facts, and to refrain from imposing an arbitrary time limit on the examination and cross-examination of witnesses.

Robert D. Beall, Leavenworth, argued the cause and was on the brief for appellants.

Austin N. Wyrick, Leavenworth, argued the cause, and Tom Boone, Leavenworth, was with him on the brief for the appellee.

FONTRON, Justice.

This is a mandamus action brought by William F. Adams, a member of the Leavenworth Police Department, to compel the defendants, who constitute the Civil Service Commission of Leavenworth, Kansas, to follow certain due process procedures at a scheduled hearing of his appeal to that body. The district court issued an ex parte alternative order at the time the action was filed and that order was later made permanent after a hearing had been held. We shall refer to the parties as Adams or plaintiff, on the one hand, and the Commission or defendants, on the other.

There is no substantial dispute of fact. On December 1, 1971, Police Chief Alfred H. Pickles, by letter, suspended Adams from the police force for a period of two weeks without pay. On receipt of the communication Adams filed a notice of appeal with Pickles, who thereupon confirmed his order of suspension. The appeal from Pickles was heard by the city manager who threw out one charge, found Adams guilty of two charges and reduced the period of suspension to eight days, again without pay. From the city manager's order Adams took an appeal to the Civil Service Commission, which scheduled a hearing for January 24, 1972, at 7:00 p.m.

Before the appointed hour arrived, and following conferences between counsel on both sides, the Commission laid down a set of four ground rules which were subsequently to the plaintiff and his counsel. Two of the controversial rules were subsequently settled to everyone's satisfaction, but two remained, namely, that the witnesses appearing at the hearing could not be examined or cross-examined and that the hearing would be closed to the public and particularly to members of the press.

At approximately 3:20 p.m. of the day on which the appeal was scheduled to be heard, the present action was commenced and an alternative order was issued by the court disrecting the Commission to permit examination and cross-examination of all witnesses and to admit the public, including accredited members of the press, at all stages of the proceedings, except during its deliberations, or else to show cause to the contrary.

The alternative order was not served on the defendants immediately, but only after they had convened for the hearing and after a lengthy preliminary argument had been presented by plaintiff's counsel which resulted in the Commission revising its rules to permit five minutes' cross-examination of each witness. When served with the alternative order the defendants peremptorily adjourned the hearing without further ado. Subsequently the Commission filed a motion to quash, and a hearing on the alternative order was held before the district court on February 4, 1972. Following the hearing, and on February 24, 1972, the court found (1) that the defendants were acting in a quasi-judicial capacity, (2) that counsel should be permitted to conduct such examination of witnesses as was required for a full disclosure of the facts and that the Commission should refrain from imposing arbitrary time limits upon examination or cross-examination of witnesses, (3) that the hearing should be open to the public and accredited members of the press except during deliberations, and (4) that other issues raised in plaintiff's motion had been settled. Final judgment was entered in conformity with these findings. As we have said, the defendants have appealed from the judgment.

Essentially, the Commission's argument may be divided into two parts, although they tend to converge in some respects. The first point covered in the briefs relates to the applicability of mandamus proceedings under the circumstances of this case, while the second has reference to the nature of the hearing conducted by the Commission and the requirements of due process with respect thereto.

We shall consider the two propositions in reverse order, first giving attention to matters of due process. Much has been written about due process and we do not propose to engage in exhaustive discussion of the general subject. Rather, we shall attempt to confine our observations to the specifics which are before us.

Section 1-517 of the 1972 Code of Leavenworth, Kansas, said code being a compilation of city ordinances, provides as follows:

'RULES GOVERNING REMOVAL, SUSPENSIONS; APPEALS. An employee may be removed only for such cause as will promote the efficiency of the service. The employee must receive written notice of such action fifteen (15) days before the effective date of removal, specifying the charges preferred against him.

'A supervisor has the authority to suspend a subordinate for neglect of duty, disobedience of orders, or for such other reasons demanding prompt action.

'An employee may be placed on annual leave, if available, and or leave without pay as appropriate. Within twenty-four (24) hours, the supervisor will be required to advise the employee the reason for his action in sufficient detail to clearly relate the causes and actions taken. Original of such letter will be presented to the employee.

'An employee may submit to the supervisor a written reply to the charges brought against him within twenty-four (24) hours. Unless an extension of time is requested and granted, the original will be sent to the supervisor. The supervisor will consider the employee's reply in arriving at a decision. The employee will receive a written decision by the supervisor. The employee will have the right to appeal the action taken against him by the supervisor to the City Manager. The City Manager will review the actions taken and shall make a decision which shall be presented to the employee in writing. The employee may appeal the city manager's decision to the civil service commission. The commissioners shall have the power to enforce the attendance at hearings of employees involved, call witnesses, have access to security files and administer oaths of truthfulness. The commission will conduct a thorough investigation of the facts in the case, actions taken, and conformance to the rules and regulations of the merit system. The decision of the commissioners will be decided by the majority vote of those in attendance and will be final. The employee will be notified in writing the decision of the Board of Commissioners. Copies of charges, employee replies and related correspondence will be sent to the secretary of the commission. (Ord. 5193, Sec. 4)' (Emphasis added.)

It is within the...