Buda v. Fulton, No. 52853

CourtUnited States State Supreme Court of Iowa
Writing for the CourtRAWLINGS; All Justices concur, except BECKER
PartiesRocco Salvatare BUDA, Jr., Appellee, v. Jack M. FULTON, Commissioner of the Iowa Department of Public Safety, Appellant.
Docket NumberNo. 52853
Decision Date05 March 1968

Page 336

157 N.W.2d 336
261 Iowa 981
Rocco Salvatare BUDA, Jr., Appellee,
v.
Jack M. FULTON, Commissioner of the Iowa Department of Public Safety, Appellant.
No. 52853.
Supreme Court of Iowa.
March 5, 1968.

[261 Iowa 983]

Page 337

Richard C. Turner, Atty. Gen., and Joseph W. Zeller, Asst. Atty. Gen., for appellant.

Gilloon, Klauer, Stapleton & Ernst, Dubuque, for appellee.

RAWLINGS, Justice.

This case comes to us on appeal from judgment of trial court vacating operator's license revocation order issued by State Department of Public Safety.

Understanding the matter presented stands solely in the field of administrative law, under chapter 321B, Code, 1966, we confine ourselves accordingly.

Defendant commissioner caused an order to issue revoking, for 120 days, operator's license held by plaintiff, Rocco Salvatare Buda, Jr.

A post-order requested hearing was held before commissioner's agent with Buda represented by counsel. (Code section 321B.8.) The previously issued order of revocation was sustained. Plaintiff appealed to trial court. (Code section 321B.9.)

Early morning, March 10, 1967, plaintiff was involved in an automobile accident. He telephoned the police. Officer Schneider soon arrived. Buda was arrested for operating a motor vehicle while intoxicated and taken to the Dubuque Police Station. Within ten minutes after arrival, repeated requests were made that Buda submit to a blood test. He refused.

Plaintiff's petition, on original appeal, alleges generally the defendant, through his agent, erred in sustaining order of revocation, asserting four specific errors. Defendant answered denying all affirmative allegations.

On hearing to trial court, transcript of proceedings before defendant commissioner was first presented in evidence. Subsequently Officer Schneider and plaintiff testified.

In vacating the challenged license revocation order trial court found, inter alia, burden of proof was on defendant commissioner, arresting officer's failure to comply with the law vitiated any subsequent right or authority to impose an administrative sanction, and plaintiff did not understand

Page 338

effect of refusal to provide specimen for chemical analysis.

Under existing circumstances we cannot agree.

[261 Iowa 984] I. Referring first to the matter of statutory appeal from commissioner's administrative order to trial court, Code section 321B.9, provides: 'If the revocation or denial is sustained the person whose license, permit to drive, or nonresident operating privilege has been revoked or denied, may file a petition within thirty days after the determination by the commissioner of public safety or his authorized agent for a hearing of the matter in the district court in the county wherein the alleged events occurred for which he was arrested or in the county in which the administrative hearing was held. It shall be the duty of the court to set the matter for hearing, and the petitioner shall give twenty days notice thereof to the commissioner. Within fifteen days after receipt of the notice, the commissioner shall file in the office of the clerk of the district court to which the appeal is taken a certified transcript of the testimony and all other proceedings. It shall constitute the record on which the commissioner made his determination. The court thereafter shall hear the matter de novo and shall affirm or vacate the decision of the commissioner or his authorized agent. The person or the commissioner may appeal to the supreme court in accordance with the Iowa Rules of Civil Procedure.' (Emphasis supplied.)

Relatively few jurisdictions hold statutory 'hearing de novo', when applied to judicial review of an administrative adjudication, means a limited examination of proceedings by a lower board, commission or officer without leave to introduce additional evidence. See Allen v. Herrera, Tex.Civ.App., 257 S.W.2d 753, 754--755. However, according to the greater weight of apparent authority that term or its equivalent, when so employed, has been given a more realistic liberal interpretation.

In Mason v. World War II Service Compensation Board, 243 Iowa 341, 344, 51 N.W.2d 432, we held a legislative grant of hearing de novo on appeal from official administrative order ordinarily signifies the case is heard anew, afresh, a second time, as in equity; a trial in the commonly accepted sense of that term in a court of general jurisdiction, including the right to produce evidence in the same manner as though the action had originated in the district court.

See also In re Betts' Estate, 2 Ill.App.2d 453, 119 N.W.2d [261 Iowa 985] 801, 805; Louisville & Jefferson County Plan & Zoning Com'n. v. Grady, Ky., 273 S.W.2d 563, 565; Hiner v. Wenger, 197 Va. 869, 91 S.E.2d 637, 639; Foster v. Carson School Dist., 63 Wash.2d 29, 385 P.2d 367, 369; 73 C.J.S. Public Administrative Bodies and Procedure §§ 203--204, pages 552--556; 2 Am.Jur.2d Administrative Law, sections 612--613, pages 452--457, sections 698--701, pages 597--603, sections 747--754, pages 646--655; Annos. 97 A.L.R.2d 1367; and 46 Iowa L.Rev. 862.

Upon this basis it appears trial court was correct in holding presentation of evidence by plaintiff, in addition to that disclosed by transcript of proceedings before commissioner, be permitted.

II. By the same token our review is de novo. Stated otherwise, as a case is heard in the trial court it is generally so considered on appeal. See Henderson v. Hawkeye-Security Ins. Co., 252 Iowa 97, 100, 106 N.W.2d 86, and State ex rel. McPherson v. Rakey, 236 Iowa 876, 879, 885, 20 N.W.2d 43.

III. Though not here of special significance, it is to us evident trial court erred in holding the burden of proof, on appeal by Buda, was upon defendant commissioner.

It was plaintiff's privilege to appeal from commissioner's administrative order. In so doing he necessarily made certain affirmative allegations which, as heretofore disclosed, were denied by defendant.

Page 339

Rule 344(f)(5), R.C.P., states: 'Ordinarily the burden of proof follows the pleading; that is, he who pleads and relies upon the affirmative of an issue must carry the burden of proving it.'

As we said in Fortgang Brothers, Inc. v. Cowles, 249 Iowa 73, 76, 85 N.W.2d 916: 'It is true generally that the burden of pleading and proving an issue go together. The party who is required to plead an issue has the burden of proving that issue. In re Estate of Ewing, 234 Iowa 950, 955, 14 N.W.2d 633. The true test to determine where is the burden is to consider which party would be entitled to the verdict if no evidence were offered on either side. Veiths v. Hagge, 8 (Clarke) Iowa 163.'

Since a licensee's statutory appeal is heard de novo, with right to present evidence as in an ordinary action commenced originally in the district court, we find no legally reasonable basis [261 Iowa 986] upon which to hold other than that rule 344(f)(5), quoted supra, applies, even though the appeal be classified as a special proceeding.

In connection with the foregoing see Richard v. Holliday, Iowa, 153 N.W.2d 473, 477; Burkholder v. State Industrial Accident Commission, 242 Or. 276, 409 P.2d 342, 345--346; Dimitroff v. State Industrial Accident Commission, 209 Or. 316, 306 P.2d 398, 401--402; 31 A C.J.S. Evidence §§ 103--104, pages 164--181; 29 Am.Jur.2d, Evidence, sections 127--128, pages 159--162; and McCormick on Evidence, Hornbook Series, section 306, page 635.

IV. Closely related to burden of proof is the matter of quantum of evidence required on the part of an appealing party in order to prevail.

By virtue of the provisions of section 622.56, Code, 1966, official proceedings of the department of public safety are rebuttably presumed to be regular. See State ex rel. Howson v. Consolidated Sch. Dist., 245 Iowa 1244, 1249, 65 N.W.2d 168. With regard to the foregoing see generally 73 C.J.S. Public Administrative Bodies and Procedure § 205, page 556, and 2 Am.Jur.2d, Administrative Law, section 748, page 647.

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51 practice notes
  • Lee Enterprises, Inc. v. Iowa State Tax Commission, WMT-T
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1968
    ...exercise of judicial power to determine the constitutionality of a statute. 16 C.J.S. Constitutional Law § 76. In Buda v. Fulton, Iowa, 157 N.W.2d 336, 341 (1968), we said: 'This court has consistently held a constitutional challenge must specify the provisions invoked and Page 741 state wi......
  • Welch v. Iowa Dep't of Transp., No. 10–2029.
    • United States
    • United States State Supreme Court of Iowa
    • August 12, 2011
    ...to blood test conditioned [801 N.W.2d 596] on having test administered at hospital of motorist's choosing was refusal); Buda v. Fulton, 261 Iowa 981, 991, 157 N.W.2d 336, 342 (Iowa 1968) (plaintiff's statements reflecting a total failure to cooperate were “tantamount to a declination”). We ......
  • Chicago Title Ins. Co. v. Huff, No. 2-57752
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 1977
    ...violates the provision invoked and the facts relied on to show unconstitutionality must be clearly made to appear. "In Buda v. Fulton, 261 Iowa 981, 989, 157 N.W.2d 336, 341 we " 'This court has consistently held a constitutional challenge must specify the provisions invoked and state with ......
  • Iron Workers Local No. 67 v. Hart, No. 54741
    • United States
    • United States State Supreme Court of Iowa
    • November 11, 1971
    ...provisions invoked and state with precision the details of a claimed defect. Frost v. State, 172 N.W.2d 575 (Iowa 1969); Buda v. Fulton, 261 Iowa 981, 157 N.W.2d 336 Respondents' challenges to the constitutionality of these statutes might be rejected on the basis of these guidelines. They d......
  • Request a trial to view additional results
51 cases
  • Lee Enterprises, Inc. v. Iowa State Tax Commission, WMT-T
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1968
    ...exercise of judicial power to determine the constitutionality of a statute. 16 C.J.S. Constitutional Law § 76. In Buda v. Fulton, Iowa, 157 N.W.2d 336, 341 (1968), we said: 'This court has consistently held a constitutional challenge must specify the provisions invoked and Page 741 state wi......
  • Welch v. Iowa Dep't of Transp., No. 10–2029.
    • United States
    • United States State Supreme Court of Iowa
    • August 12, 2011
    ...to blood test conditioned [801 N.W.2d 596] on having test administered at hospital of motorist's choosing was refusal); Buda v. Fulton, 261 Iowa 981, 991, 157 N.W.2d 336, 342 (Iowa 1968) (plaintiff's statements reflecting a total failure to cooperate were “tantamount to a declination”). We ......
  • Chicago Title Ins. Co. v. Huff, No. 2-57752
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 1977
    ...violates the provision invoked and the facts relied on to show unconstitutionality must be clearly made to appear. "In Buda v. Fulton, 261 Iowa 981, 989, 157 N.W.2d 336, 341 we " 'This court has consistently held a constitutional challenge must specify the provisions invoked and state with ......
  • Iron Workers Local No. 67 v. Hart, No. 54741
    • United States
    • United States State Supreme Court of Iowa
    • November 11, 1971
    ...provisions invoked and state with precision the details of a claimed defect. Frost v. State, 172 N.W.2d 575 (Iowa 1969); Buda v. Fulton, 261 Iowa 981, 157 N.W.2d 336 Respondents' challenges to the constitutionality of these statutes might be rejected on the basis of these guidelines. They d......
  • Request a trial to view additional results

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