Weeks v. PERSONNEL BD. OF REVIEW, ETC.

373 A.2d 176, 118 R.I. 243, 1977 R.I. LEXIS 1452

• Court: Supreme Court of Rhode Island
• Decided: May 13, 1977
• Docket: 74-317-Appeal
• Status: Published

Opinions

Kelleher, J.

This case comes before us on certification from the Superior Court pursuant to G.L. 1956 (1969 Reenactment) §9-24-27 and our Rule 6. We are asked to determine whether G.L. 1956 (1970 Reenactment) §45-20-1.1, which provides for a trial de novo in Superior Court for certain appeals by police officers, violates the doctrine of separation of powers by conferring on courts authority over executive or administrative functions. We conclude that the action from which such appeals are taken is judicial or quasi-judicial in nature and that accordingly the grant of authority for trial de novo is constitutional. As we proceed, we shall refer to the plaintiff, Kenneth L. Weeks, by his last name and the defendants, Chief of Police, Director of Public Safety, and the North Kingstown Personnel Board of Review as the “board” except where the actions of a specific individual are involved.

In April 1974 Weeks was a police officer in the town of North Kingstown. He was also under investigation by federal authorities for theft of certain materials from the Naval Commissary at Davisville. Because of this latter •status he was suspended from the force for 30 days commencing April 13, 1974. In the ensuing month the United States Attorney returned a criminal information against Weeks, and on May 13, 1974, the chief of police discharged him from the force. Subsequently, Weeks was acquitted •of the .charges and sought reinstatement to the force, but his request was denied. Thereafter, he demanded and was afforded a hearing before the North Kingstown Personnel Board of Review which on August 29, 1974 confirmed the decision dismissing him.¹ Approximately a month later Weeks appealed that decision by filing a complaint in the Superior Court.

The board moved to dismiss Week’s complaint on the grounds that §45-20-1.1 unconstitutionally infringed on the executive power. Following a hearing on the motion to dismiss, the Superior Court justice certified the following question of law to this court:

“IS TITLE 45, Chapter 20, Section 1.1, of the Rhode Island General Laws, 1969 as amended, unconstitutional in that it is a usurpation of and infringement upon the powers of the executive branch of the government and in violation of the Doctrine of Separation of Power of the Constitutions of the United States and State of Rhode Island and also Article III of the Rhode Island Constitution.”²

The Federal Constitutional Question

This facet of the pending inquiry needs little discussion. The fact that the United States Constitution establishes a tripartite federal government and guarantees to the states a republican form of government does not bear on the problem before us. The federal separation of powers doctrine does not determine the way in which states shall allocate state powers. Thus, the General Assembly could vest nonjudicial authority in the judiciary without impinging on the separation of powers doctrine under the Federal Constitution.

The State Constitutional Question

When considering the propriety of de novo review, we •must first determine whether the board or agency being reviewed was acting in an administrative or judicial capacity. For, while de novo review is generally precluded in the former instance, it can be allowed in the latter. In re Stephens v. Unified School Dist. No. 500, 218 Kan. 220, 546 P.2d 197 (1975); Francisco v. Board of Directors, 85 Wash.2d 575, 537 P.2d 789 (1975). It has long been estab lished in Rhode Island that administrative proceedings to •discipline or remove police officers for cause are judicial or quasi-judicial in nature. Carroll v. Goldstein, 100 R.I. 550, 217 A.2d 676 (1966); Gartsu v. Coleman, 82 R.I. 103, 106 A.2d 248 (1954); Garvin v. McCarthy, 39 R.I. 365, 97 A. 881 (1916). This is because the officer may not be discharged except upon a showing of cause.³

Moreover, a long line of cases recognizes the General Assembly’s broad control in matters relating to the municipal operation of police and fire departments. See Marro v. General Treasurer, 108 R.I. 192, 273 A.2d 660 (1971), and cases cited therein. Certainly it is within the Legislature’s power to prescribe the mode of appeal from a city or town’s personnel board of review. Due to the judicial nature of the proceedings, the General Assembly could have provided for original suit in the Superior Court or ■any other court. See In re Stephens v. Unified School Dist. No. 500, supra. The Legislature’s decision to provide for de novo review appeal does not make the proceedings before the administrative board any less judicial. Civil Serv. Comm’n v. Matlock, 205 Ark. 286, 168 S.W.2d 424 (1943).

Prior to the enactment of §45-20-1.1, police officers aggrieved by decisions of local police bureaus obtained review by way of certiorari to Superior Court. Public Laws 1948, ch. 2083. Section 45-20-1.1, however, is an indication that the General Assembly considered the discipline and removal of police officers sufficiently important to warrant a redetermination of fact and law by a trial court unfettered by possible prejudices that might exist at the municipal level. Professor Louis L. Jaffe, one of the foremost authorities on administrative law, 'concludes in his book on Judicial Control of Administrative Action that the Legislature should be free to vest the courts with de novo review of agency proceedings in those situations where the Legislature feels the special safeguards of the judicial process should be available. Generally courts defer to the factfinding role the Legislature has given to administrative agencies, but “no such constraint logically should exist where the legislature itself has granted the courts a fact-finding role in their review of administrative action.” Matanuska-Susitna Borough v. Lum, 538 P.2d 994, 1001 (Alas. 1975).

We have examined numerous cases dealing with a purported unconstitutional grant of nonjudicial functions to the judiciary. Some which seem directly on point and hold such a grant unconstitutional we find distinguishable on the grounds that the holdings are based on the premise that the actions of the lower tribunal are ministerial, executive or administrative in nature. See City of Aurora v. Schoberlein, 230 Ill. 496, 82 N.E. 860 (1907); State ex rel. McGinnis v. Police Civil Serv. Comm’n, 253 Minn. 62, 91 N.W.2d 154 (1958); City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48 (1951). Others which reject de novo review but uphold a more limited review we find unpersuasive.⁴ On the other hand, statutory grants of de novo •review have been upheld in several states when attacked on constitutional grounds. Ex parte Darnell, 262 Ala. 71, 76 So.2d 770 (1954) (dismissal of city detective); Matanuska-Susitna Borough v. Lum, supra (dismissal of tenured teacher); Civil Serv. Comm’n v. Matlock, supra (chief of police reduced in rank); Osborne v. Bullitt County Bd. of Educ., 415 S.W.2d 607 (Ky. 1967) (discharge of school teacher); Francisco v. Board of Directors, supra (discharge of school teacher). In each of these cases the courts found the de novo review did not violate the separation of power doctrine.

Once the disciplinary hearing is characterized as a judicial function, the breadth of remedies that the Legislature has bestowed upon the Superior Court is immaterial. Thus, we would parenthetically point out that any questions as to this .aspect of the Act pertain to legislative wisdom rather than the statute’s constitutionality.

From the foregoing analysis we conclude that the de novo review afforded in §45-20-1.1 is constitutional and does not violate the doctrine of separation of powers.

We answer the question certified to us in the negative.

1 No fault is alleged concerning the procedural aspects of the hearing.

2 Article III of the Rhode Island Constitution provides: “The powers of the government shall be distributed into three departments: the legislative, executive and judicial.”

3 Section 2-5-17 of North Kingstown’s Revised Ordinance (1974) specifies that a permanent employee who has been dismissed or demoted is to receive a written notice, which contains a statement “of the substantial reasons” for such action, and the employee then has a right to a hearing before the town’s personnel board.

4 See In re Fredericks, 285 Mich. 262, 280 N.W. 464 (1938); Fire Dept. v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1949).