Tolman v. Salt Lake County Attorney

• Citation: 818 P.2d 23
• Decision Date: 06 September 1991
• Docket Number: No. 900112-CA,900112-CA
• Parties: Ralph TOLMAN, Petitioner and Appellant, v. SALT LAKE COUNTY ATTORNEY, Respondent and Appellee.
• Court: Court of Appeals of Utah

Page 23

818 P.2d 23

Ralph TOLMAN, Petitioner and Appellant, v. SALT LAKE COUNTY ATTORNEY, Respondent and Appellee.

No. 900112-CA.

Court of Appeals of Utah.

Sept. 6, 1991.

L. Zane Gill (argued) L. Zane Gill, P.C., Salt Lake City, for petitioner and appellant.

Jerry G. Campbell (argued) Deputy County Atty., Salt Lake City, for respondent and appellee.

Before BENCH, JACKSON and RUSSON, JJ.

BENCH, Presiding Judge:

Appellant, Ralph Tolman, seeks reversal of an administrative decision by the Salt Lake County Career Services Council (CSC). The CSC upheld the termination of Tolman's job as an investigator for the Salt Lake County Attorney's Office (CAO). Tolman petitioned the district court for an extraordinary writ under Rule 65B of the Utah Rules of Civil Procedure. The district court refused to grant Tolman any relief from the CSC's decision. We conclude that Tolman is entitled to a new hearing and therefore vacate the district court's order denying relief.

In September 1986, then-county attorney Ted Cannon sent Tolman a letter informing him that his employment as an investigator for the CAO would be terminated because of "continuing misconduct and acts inimical to public service." Tolman appealed the termination to the CSC. The CSC upheld the termination, finding that the alleged misconduct did in fact occur and that termination was therefore warranted. The CSC relied upon six events of misconduct by Tolman in making its decision, but only one of those events is directly relevant to our discussion.

The CSC found that on June 10, 1986, Tolman, while off-duty, assaulted and battered his ex-girlfriend and a male acquaintance after finding them naked in her hot tub. The CSC also found that on June 11, 1986, while on his way to work, Tolman stopped again at his ex-girlfriend's house and again battered the male acquaintance who had stayed the night. The CSC concluded that in regards to this series of events, Tolman "used poor judgment and that his actions constituted acts inimical to public service." ¹

The CSC held that "(1) the allegations against Ralph Tolman by the Salt Lake County Attorney's Office were not only supported by the facts but that they were not controverted; [and] (2) the action taken, the termination of Ralph Tolman, was warranted." Tolman sought relief from the CSC decision by petitioning the district court for an extraordinary writ pursuant to Rule 65B. ² The district court held that the CSC did not exceed its jurisdiction or abuse its discretion and therefore upheld the termination by refusing to grant Tolman any relief. Tolman appeals the district court's denial of relief.

STANDARD OF REVIEW

Rule 65B

The procedural posture of this case presents an unusual standard of review. ³ Under Rule 65B, this court looks at the administrative proceeding as if the petition were brought here directly, even though technically it is the district court's decision that is being appealed. Erkman v. Civil Service Comm'n, 114 Utah 228, 198 P.2d 238, 240 (1948). Since the review performed by the district court under Rule 65B is a review of the entire record, it is the same review that would have been afforded if the matter were raised as a direct appeal. In re: Discharge of Jones, 720 P.2d 1356, 1360 (Utah 1986). We give no deference to the district court's initial appellate review since it was a review of the record, which this court is just as capable of reviewing as the district court. Bennion v. State Bd. of Oil, Gas & Mining, 675 P.2d 1135, 1139 (Utah 1983); Vali Convalescent & Care Insts. v. Division of Health Care Financing, 797 P.2d 438, 443 (Utah App.1990); Davis County v. Clearfield City, 756 P.2d 704, 710 (Utah App.1988). We therefore review the CSC's actions directly. No claim has been made by Tolman that the CSC exceeded its jurisdiction, we therefore review its actions for an abuse of discretion.

Abuse of Discretion

Discretion "encompass[es] the power of choice among several courses of action, each of which is considered permissible...." R. Aldisert, The Judicial Process 759 (1976). Tribunals may exercise discretion in many matters where there are no hard and fast rules of law and the tribunal is in an advantaged position to make the correct decision. Discretion, however, "is limited in that it must be exercised within the confines of the legal standards set by appellate courts...." Maughan v. Maughan, 770 P.2d 156, 159 (Utah App.1989). Discretion may also be confined by statute. See Williams v. Mountain States Tel. & Tel. Co., 763 P.2d 796, 800 (Utah 1988) (statute does not "eliminate the Commission's power," it "establishes the perimeters within which the PSC may properly exercise its expertise, authority, and jurisdiction"). Discretion may best be viewed as an arena bounded by the law, within which the tribunal may exercise its judgment as it sees fit.

By an "abuse of discretion" ... "is meant a clearly erroneous conclusion and judgment--one that is clearly against the logic and the effect of such facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing." It does not imply intentional wrong or bad faith or misconduct, nor any reflection on the judge. It is a legal term to indicate that the appellate court is of the opinion that there was commission of error of law in State v. Draper, 83 Utah 115, 143, 27 P.2d 39, 49-50 (1933) (quoting Starr v. State, 5 Okl.Cr. 440, 115 P. 356, 363 (1911); citations omitted).

the circumstances. It is an improvident exercise of discretion; an error of law.

A claim that a tribunal has "abused its discretion" may more accurately be framed as a claim that the tribunal has "misused" or "exceeded" its discretion. An abuse of discretion, therefore, is an act by a tribunal, not a standard of review in and of itself. A reviewing court discovers such acts by applying varying standards of review depending upon the error alleged. For example, if an alleged error involves a tribunal's factual findings, a determination clearly within the arena of the tribunal's discretion due to its advantaged position to hear and see the evidence firsthand, we review the tribunal's factual finding using a clearly erroneous standard, giving great deference to the tribunal's findings. See Utah R.Civ.Proc. 52(a). If an alleged error involves other decisions that are traditionally left to the discretion of a tribunal, we will not disturb the tribunal's determination unless it is "arbitrary, capricious, or unreasonable." Child v. Salt Lake City Civil Serv. Comm'n, 575 P.2d 195, 197 (Utah 1978) (rule 65B petition). See also Peatross v. Board of Comm'rs, 555 P.2d 281, 284 (Utah 1976). If, however, a party claims that a tribunal has stepped out of the arena of discretion and thereby crossed the law, we review using a correction of error standard, giving no deference to the tribunal's legal determination. We give no deference to such decisions because we are in as good a position as the tribunal to determine the law. Obviously, the making of a clearly erroneous factual finding is an abuse of discretion, as is acting unreasonably or misinterpreting the law. In essence, a reviewing court never overturns a lower tribunal unless there has been an abuse of discretion. ⁴

In the present case, Tolman does not challenge any of the CSC's findings of the basic facts. He does challenge the reasonableness of the CSC's conclusions that the evidence supports the charges and that his dismissal was warranted. Tolman also urges that the CSC abused its discretion by not providing him with a hearing that satisfies the minimal procedural requirements of due process. We are unable to address the reasonableness of the CSC's decision because of the lack of an adequate record. ⁵

Even in its incomplete form, however, the record does provide us with a sufficient basis for determining Tolman's due process claims.

"In cases where the basic question is what does the law require? the standard is a correction of error standard." Savage Indus., Inc. v. Utah State Tax Comm'n, 811 P.2d 664, 668 (Utah 1991). The constitutional issue of whether Tolman was denied due process requires a determination of what minimal procedural safeguards are required as a matter of law. Due process challenges, therefore, are questions of general law and we give no deference to the agency's determination of what constitutes due process as reflected by the actual hearing. Utah Dept. of Admin. Servs., 658 P.2d at 608. See also Bunnell v. Industrial Comm'n, 740 P.2d 1331, 1333 (Utah 1987).

DUE PROCESS

"[E]very person who brings a claim in a court or at a hearing held before an administrative agency has a due process right to receive a fair trial in front of a fair tribunal." Bunnell, 740 P.2d at 1333. As a general rule, "due process demands a new trial when the appearance of unfairness is so plain that we are left with the abiding impression that a reasonable person would find the hearing unfair." Id. n. 1.

It is well settled that administrative hearings need not possess the formality of judicial proceedings. The degree of formality depends on the nature of the administrative proceedings. Department of Community Affairs, 614 P.2d at 1262. Inasmuch as the CSC's decision is of a judicial nature, more formality is required. See, e.g., Kirk v. Division of Occupational & Professional Licensing, 815 P.2d 242, 244 (Utah App.1991) (petitioner was not afforded "the rights and procedural safeguards that must be present when an agency acts in a judicial capacity conducting a trial-type hearing"). The strict rules of evidence and procedure that apply in a courtroom, however, need not apply in an administrative hearing. ⁶ See, e.g., Nelson v. Department of Employment Sec., 801 P.2d 158, 163 (Utah App.1990). Hearsay and other forms of evidence that might be inadmissible in a court of law may be considered during an administrative hearing. Bunnell, 740...