University of Cincinnati v. Conrad

• Decision Date: 09 July 1980
• Docket Number: No. 79-613,79-613
• Parties: , 17 O.O.3d 65 UNIVERSITY OF CINCINNATI, Appellant, v. CONRAD, Appellee.
• Court: Ohio Supreme Court

Page 108

63 Ohio St.2d 108

407 N.E.2d 1265, 17 O.O.3d 65

UNIVERSITY OF CINCINNATI, Appellant, v. CONRAD, Appellee.

No. 79-613.

Supreme Court of Ohio.

July 9, 1980.

Beckman, Lavercome, Fox & Weil, Bernard C. Fox and Marc L. Greenberg, Cincinnati, for appellant.

James C. Paradise, Cincinnati, for appellee.

PER CURIAM.

This appeal concerns the scope of review available to a Court of Common Pleas in an administrative appeal pursuant to R.C. 119.12. Although this court has addressed this issue in the past, an examination of the record in this cause indicates that further clarification is necessary.

As to the authority of a Court of Common Pleas upon review of an administrative order, pursuant to R.C. 119.12, such section provides, in pertinent part, that:

"The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law."

In Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 131 N.E.2d 390, paragraph one of the syllabus, this court held that a Court of Common Pleas must, in an appeal pursuant to this section, appraise all the evidence "as to credibility of witnesses, the probative character of the evidence and the weight to be given it, and, if from such a consideration it finds that the * * * (administrative) order is not supported by reliable, probative and substantial evidence and is not in accordance with law, the court is authorized to reverse, vacate, or modify the order * * *." However, Andrews also pointed out that R.C. 119.12 does not contemplate a trial de novo in the Court of Common Pleas by the following language:

"The appeal in the Common Pleas Court can not be a trial de novo, for the reason that the court is limited to an examination of the record of the hearing before the administrative agency and such additional evidence as the court, in its discretion, may allow to be presented upon the theory that it is newly discovered.

"It is obvious that, if the General Assembly had intended the appeal provision to afford a trial de novo, the court would be required to hear all material, relevant and probative evidence which either party might desire to present. On the other hand, the language in the amendment of 1951 extends the authority of the Common Pleas Court, upon appeal, beyond that court's former authority which did not permit it to substitute its judgment for that of the agency and which confined it to determining the rights of the parties in accordance with the statutes and law applicable."

In the case of Hale v. Bd. of Edn. (1968), 13 Ohio St.2d 92, 234 N.E.2d 583, discussing the scope of review of the Common Pleas Court under R.C. 3319.16 (teacher termination), Chief Justice Taft stated, at pages 96-97, 234 N.E.2d at page 586, that:

"The legislative purpose, generally to authorize a Common Pleas Court to weigh the evidence on an appeal from an administrative agency, is indicated by other statutes, as well as by our decisions construing them. Thus, after the holding of this court in Farrand v. State Medical Board (1949), 151 Ohio St. 222, 85 N.E.2d 113, the General Assembly amended what is now Section 119.12, Revised Code, to provide for such authority. Andrews v. Board of Liquor Control, supra (164 Ohio St. 275 (131 N.E.2d 390) paragraph one of syllabus). Furthermore, in adopting Section 2506.04, Revised Code, in 1957, the General Assembly even used the words 'preponderance of * * * evidence' to emphasive (sic ) this purpose."

In Andrews, this court acknowledged that determining whether an agency order is supported by...