City of Columbia v. Pendleton

• Decision Date: 22 February 1980
• Citation: 595 S.W.2d 718
• Parties: CITY OF COLUMBIA, Kentucky, Appellant, v. Raymond PENDLETON and Osley Rowe, Appellees.
• Court: Kentucky Court of Appeals

Page 718

595 S.W.2d 718

CITY OF COLUMBIA, Kentucky, Appellant, v. Raymond PENDLETON and Osley Rowe, Appellees.

Court of Appeals of Kentucky.

Feb. 22, 1980.

James Terry Hodges, Columbia, for appellant.

Thomas D. Emberton, Edmonton, for appellees.

Before BREETZ, GANT and VANCE, JJ.

VANCE, Judge.

Appellees were dismissed from their positions as police officers of the City of Columbia after the City Council heard evidence on charges that appellees had violated the rules of the Police Department. On a de novo appeal the trial court made a finding that the evidence preponderated against the decision of the City Council and as such exonerated the officers of the charges against them. The City appeals.

The City contends that de novo appeals were abolished by Section 115 of the Constitution of Kentucky adopted in 1975. It provides:

In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law, and the general assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage. Procedural rules shall provide for expeditious and inexpensive appeals. Appeals shall be upon the record and not by trial de novo.

Section 115 of the Constitution has been construed to apply only to appeals from one court to another and not to apply to appeals from administrative agencies. Yocom v. United States Steel Corp. et al., Ky.App., 566 S.W.2d 160 (1977); Sarver v. County of Allen, etc., Ky., 582 S.W.2d 40 (1979). In Sarver it was held that a statutory "appeal" to the circuit court from any agency or tribunal other than the district court is really an original action and not an "appeal".

The extent and scope of de novo review has an interesting history in this Commonwealth. In American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450 (1964), it was held that statutes providing for trial de novo in circuit court of administrative matters decided by appropriate bodies violates the constitutional doctrine of separation of powers and that such statutes were unconstitutional. The rule of American Beauty Homes has been considerably eroded by subsequent decisions and now applies only to zoning matters and matters of a similar nature. The cases which have eroded the principle set forth in American Beauty Homes are reviewed in detail in Brady v. Pettit, Ky., 586 S.W.2d 29 (1979). Therein the Court stated:

In summary, it appears that in public employee discharge cases where there is a trial de novo statute, the discharged employee is entitled to something less than a classic trial de novo in circuit court. In this proceeding in circuit court the burden of proof shifts to the discharged employee. After review of the transcript of evidence or hearing the witnesses, the trial court is limited in its decision. The trial court may not substitute its judgment for that of the administrative body, that is, there may not be a substitute punishment. The trial court may find the discharged employee has failed to meet the burden of proof and affirm the action of the administrative board; or if it is found that the employee has sustained the burden of proof, the trial court may set aside the punishment.

With the exception of Harrell (Harrell v. City of Middlesboro, Ky., 287 S.W.2d 614) and Osborne (Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607), where the opinions do not reveal the type proceeding in circuit court, all the opinions subsequent to American Beauty Homes have revealed that the trial court has heard the witnesses....