Behrmann v. Public Emp. Relations Bd.

• Decision Date: 24 February 1979
• Docket Number: No. 50090,50090
• Citation: 591 P.2d 173,225 Kan. 435
• Parties: , 101 L.R.R.M. (BNA) 2822 Mickey BEHRMANN, Plaintiff-Appellee, v. PUBLIC EMPLOYEES RELATIONS BOARD, Defendant-Appellant.
• Court: Kansas Supreme Court

Page 173

591 P.2d 173

225 Kan. 435, 101 L.R.R.M. (BNA) 2822

Mickey BEHRMANN, Plaintiff-Appellee, v. PUBLIC EMPLOYEES RELATIONS BOARD, Defendant-Appellant.

No. 50090.

Supreme Court of Kansas.

Feb. 24, 1979.

Syllabus by the Court

1. The judicial power of this state shall be vested exclusively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law; and all courts of record shall have a seal. The supreme court shall have general administrative authority over all courts in this state. (Kan.Const. art. 3, § 1 (1978 Supp.).

2. A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. (Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908).)

3. In ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers and adopters of that provision.

4. In interpreting and construing a constitutional amendment the court must examine the language used and consider it in connection with the general surrounding facts and circumstances that caused the amendment to be submitted.

5. The amendment to article 3, section 1 of the Kansas constitution does not prevent administrative agencies from performing quasi-judicial functions reasonably necessary to the proper performance of their administrative duties and when so authorized by the legislature.

6. The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely. It lies within the legislative domain to determine from what orders or judgments an appeal may be taken. Courts have no inherent appellate jurisdiction over the official acts of administrative officials or boards except where the legislature has made some statutory provision for judicial review. (Brinson v. School District, 223 Kan. 465, 467, 576 P.2d 602 (1978).)

7. A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal's action was within the scope of its authority. (Kansas Ass'n of Public Employees v. Public Service Employees Union, 218 Kan. 509 Syl. P 1, 544 P.2d 1389 (1976).)

8. K.S.A. 75-4334(B ), which limits the scope of review in the district court from an order of the Public Employees Relations Board, is not unconstitutional as being in violation of the separation of powers doctrine or article 3, section 1 of the Kansas constitution.

Janet A. Chubb, Asst. Atty. Gen., Kansas Judicial Center, Topeka, argued the cause and Curt T. Schneider, Atty. Gen., and Douglas B. Muxlow, Asst. Atty. Gen., were with her on the brief for defendant-appellant.

Russell Cranmer, of Michaud, Cranmer, Syrios & Post, Wichita, argued the cause and was on the brief for plaintiff-appellee.

HOLMES, Justice:

This is an interlocutory appeal by the Public Employees Relations Board (PERB or Board) from an order of the district court holding K.S.A. 75-4334(B ) unconstitutional as violating article 3, section 1 of the Kansas constitution. Appellee, Mickey Behrmann, was employed by the sewer maintenance department of the City of Wichita. After being dismissed by the City she filed a complaint with appellant alleging the City had engaged in a prohibited practice under K.S.A. 75-4333(B )(4). A hearing was held before the Board and an order was issued by the Board finding the City had engaged in a prohibited practice under the statute. The Board ordered appellee reinstated in her job but without back pay. Behrmann filed a petition for review in the district court alleging the order of the Board was arbitrary, capricious and unreasonable and asked for a modification of the order to include back wages and other benefits. During the course of the appeal, Behrmann sought a trial de novo which was granted by the district court.

The PERB brought this interlocutory appeal pursuant to an order granted by the district court which also stayed further proceedings pending a determination of this appeal. While the parties list three points on appeal, the basic issue is whether a de novo review of quasi-judicial decisions of administrative bodies is required by article 3, section 1 of the Kansas constitution and, if so, is 75-4334(B ), which provides a more limited scope of review, unconstitutional?

Prior to 1972, the Kansas constitution provided as follows:

"The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law; and all courts of record shall have a seal to be used in the authentication of all process." Kan.Const. art. 3, § 1 (1859).

Subsequent to 1972, after its amendment, the judicial article has read as follows:

"The judicial power of this state shall be vested exclusively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law; and all courts of record shall have a seal. The supreme court shall have general administrative authority over all courts in this state." Kan.Const. art. 3, § 1 (1978 Supp.).

K.S.A. 75-4334 governs the procedure for an action before the Board under the Public Employer-Employee Relations Act (K.S.A. 75-4321, Et seq.) when controversies concerning alleged prohibited practices are involved. Subsection (A ) sets forth the time span for filing a prohibited practices complaint, provides for notice, filing of an answer by the accused party and for a hearing before the Board.

K.S.A. 75-4334(B ) provides:

"(B ) The board shall state its findings of facts upon all the testimony and shall either dismiss the complaint or determine that a prohibited practice has been or is being committed. If the board finds that the party accused has committed or is committing a prohibited practice, the board shall make findings as authorized by this act and shall file the same in the proceedings. Any person aggrieved by a final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the district court, in the judicial district where all of the major geographical area of the public employer is located, by filing in such court a petition praying that the order of the board be modified or set aside, with copy of the complaint filed with the board, and thereupon the aggrieved party shall file in the court the record in the proceeding certified by the board. Findings of the board as to the facts shall be conclusive unless it is made to appear to the court's satisfaction that the findings of fact were not supported by substantial evidence and the record considered as a whole." (Emphasis added.)

Subsections (C ) and (D ) are not material to the issues herein.

While much space and argument is devoted by each party in the briefs to a discussion of whether the PERB was making a quasi-judicial decision, both parties appear to conclude that it was. We agree. See Coggins v. Public Employee Relations Board, 2 Kan.App.2d 416, 581 P.2d 817 (1978). In Gawith v. Gage's Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P.2d 966 (1970), Justice Schroeder (now Chief Justice) cites with approval what he calls the "classic statement setting out the abstract test" to be used in determining between an administrative entity performing a judicial or legislative function and quotes Justice Holmes from the case of Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908), as follows:

" '. . . A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. . . .' (p. 226, 29 S.Ct. 67.)" 206 Kan. at 178, 476 P.2d at 973.

K.S.A. 75-4334(B ) limits the scope of review in an appeal from a decision of the PERB to the traditional three-pronged test. In Kansas Ass'n of Public Employees v. Public Service Employees Union, 218 Kan. 509, 544 P.2d 1389 (1976), this court in considering the scope of review referred to the portion of the statute emphasized above and stated:

"We thus have an unequivocal statement that in reviewing the action of the Public Employee Relations Board the courts shall apply the customary standards for the review of the acts of an administrative agency. The leading case on that issue is Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828, where we said:

'A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal's action was within the scope of its authority.' (Syl. P 1.)" p. 511, 544 P.2d p. 1392.

This now brings us to the real question before the court. Appellee contended, and the district court so held, that the amendment of the judicial article of the Kansas constitution in 1972 to provide that "The judicial power of this state shall be vested Exclusively in one court of justice. . . ." severed...