State Ex Rel. Beam v. Fulwiler

Hamilton, J.

We granted petitioners’ application for a writ of certiorari for the purpose of reviewing the Spokane County Superior Court’s action in granting respondent’s application fop a writ of certiorari directed to petitioners, in setting a hearing on respondent’s application for a writ of mandamus, and in granting a- restraining order prohibiting petitioners from proceeding to hear respondent’s appeal from his discharge as a city employee.

The respondent was the chief, examiner of the Civil Service Commission of the City of Spokane from July 1, 1942, until November 24, 1967, when he was discharged by order of the city manager, petitioner Fulwiler. The other petitioners are the City of Spokane, and the Civil Service Commission of the City of Spokane in the' persons of four of its members, Arthur M. Hansen, William J. May, James E. Borg, and Jerome C. Kopet.

We summarize the significant facts. The position of chief examiner of the civil service commission is specifically created by the Spokane city charter and is expressly covered by civil service,. The charter further provides that no civil service employee may be discharged except for cause, and guarantees a right of appeal from an administrator’s discharge.

In mid-1967 a concerted effort was initiated by the civil service commission (a board of five members) to dispense with respondent’s services. Respondent was asked by the commission to retire, and when he refused he was requested to resign and transfer to a lesser position. Again he refused. Thereafter the commission met in executive session, relieved respondent of his duties, and recommended passage of a city ordinance reducing his pay scale. The city council passed the ordinance, following which the commission created a new position superior to respondent’s position and filled it with another person. The respondent then applied-to the superior court for writs of mandamus and prohibition, seeking to have his duties restored and the action of the commission in establishing the new position set aside. After a hearing, the superior court granted the relief prayed for and restored respondent to his office.

No appeal was taken from the superior court’s action. Instead, the commission members undertook an investigation into respondent’s conduct in office, after which they unanimously adopted a resolution recommending that the city manager discharge him. This was followed by a letter addressed to the city manager, personally signed by four members of the civil service commission — petitioners Hansen, May, Borg, and Kopet — requesting the city manager to discharge respondent for cause. This letter detailed the charges which the signators believed warranted the recommended action. Pursuant to the' recommendation and request, the city manager notified respondent of his discharge.

The respondent timely notified the commission that he intended to appeal his discharge, and requested in his notice that the commission disqualify itself as the appellate tribunal and allow the appeal to be heard by the superior court. He predicated this request upon his belief that the commission, under the circumstances prevailing, could not provide him with a fair hearing. The commission declined to disqualify itself, and set a date for the hearing. Respondent then applied to the superior court for writs of certiorari and mandamus seeking judicial review of the order of the city manager discharging him. The superior court, after a hearing, issued a writ of certiorari directed to petitioners, and set a date for a hearing on the merits of the applications for the writs. In doing so, the court determined that the civil service commission had disqualified itself from hearing respondent’s appeal, and, by the terms of the order, restrained-the commission from taking any further action upon respondent’s case.

The petitioners then applied to this court for a writ of certiorari, which was granted, alleging that the superior court lacked jurisdiction to review respondent’s dismissal.

We cannot agree with petitioners’ allegations.

It is clear from the recited background facts that four of the five members of the civil, service commission which, by virtue of charter provisions constitute the appellate tribunal before which respondent’s appeal would normally be heard, personally investigated respondent’s administration of his office, formed their conclusions, promulgated the charges against him, transmitted these accusations over their signatures to the city manager, and recommended his discharge. Inescapably the commission members became the investigators, the accusers, the prosecutors, mayhaps the witnesses, and if allowed to sit as an appellate tribunal, the judges upon the merits of the charges. Despite the integrity of the respective members of the, commission, and their undoubted desire to be objective in their appellate disposition of the matter, it is highly unlikely, ■ under the unusual circumstances' prevailing, that the respondent or anyone in a like situation could approach or leave a hearing presided over'by a tribunal so composed with any feeling that fairness and impartiality inhered in the procedure.

The provisions of the Spokane city charter and the rules adopted by the Spokane Civil Service Commission, concerning suspension or discharge of civil service employees, provide that respondent is entitled to a hearing upon the charges giving rise, to his discharge. Implicit, in such provisions is that such a hearing shall be fair and impartial, and before an unbiased tribunal. Such protections are inherent in the word “hearing” and without them hearing procedures could be seriously infected. See Interstate Commerce Comm’n v. Louisville & Nashville R.R., 227 U.S. 88, 57 L. Ed. 431, 33 S. Ct. 185 (1913). These protections, and the concepts of fundamental fairness they project, are inherent, in the notions of “administrative due process” and have been recognized by this court. as late as Smith v. Skagit County, 75 Wn.2d 715, 453 P.2d 832 (1969). In fact, as early in the history of this court as 1898, we acknowledged that

The principle of impartiality, disinterestedness, and fairness on the part of the judge is as old as the history of courts; in fact, the administration of justice through the mediation of courts is based upon this principle. It is a fundamental idea, running through and pervading the whole system of judicature, and it is the popular acknowledgment of the inviolability of this principle which gives credit, or even toleration,, to decrees of judicial tribunals-. Actions of courts which disregard.-this safeguard to litigants would, more appropriately be termed the administration of injustice, and their proceedings would be- as shocking to our private sense of justice as they would be injurious to the public interest. The learned and observant Lord Bacon well said that the virtue of a judge is seen in making inequality- equal, that he may plant his judgment -as upon even ground. Caesar demanded that his wife should not only be virtuous, but beyond suspicion; and the state should not. be any less exacting with its judicial officers, in whose' keeping are placed not only the financial interests, but the honor, the ■liberty and the lives of its citizens, and it should see to it that the scales in which the rights- of the citizen are-weighed should be nicely balanced, for, as was well said by Judge Bronson in People v. Suffolk Common Pleas, 18 Wend. 550 :

“Next in importance to the duty of rendering a righteous judgment, is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge.”

State ex rel. Barnard v. Board of Education of Seattle, 19 Wash. 8, 17, 52 P. 317 (1898).

In the case just cited, this court was considering a challenge to the qualification of a school director to sit on a panel of school directors charged with the duty of determining the validity of a complaint against a school superintendent. We sustained the challenge predicated upon the reasoning above quoted. -

And in State ex rel. Caffrey v. Superior Court, 72 Wash. 444, 130 P. 747 (1913), a case involving the discharge of a school teacher by the board of directors and the teacher’s right of appeal'from that discharge, we held that where the appeal lay to the county superintendent who had caused the teacher’s discharge the necessary disqualification of the county superintendent vested the superior court with jurisdiction to hear the matter on the merits. In addressing ourselves to the question, we stated, at 447:

[B]ut in this case it is alleged that the county superintendent dominated the school board and took an active interest in the controversy, and without giving the plaintiff an opportunity to be, heard or to know the charges against her, and without any record of the proceedings being made, demanded her resignation and threatened her with discharge and to cancel her certificate authorizing her to teach in the state, unless she resigned. She demanded that she be informed of the charges against her and the right to be heard. These demands were denied, and she was discharged without cause. To say that she must now appeal to the. officer who dominated these proceedings and made, or at least directed, the order, is to say that the county superintendent may he tffe accuser and the judge in the same controversy; ...

The allegations in the complaint were sufficient to show that the county superintendent was utterly disqualified to hear an appeal in this case, and since there is no provision for any other person to hear it, the plaintiff is without remedy except in the courts. The superior court, therefore, had jurisdiction to review the order of the hoard of directors, and determine whether the order was made with or without cause.

(Italics ours.)

We find no distinction, in principle, between the two cases just referred to and the instant case. Both give rise to the disqualification of a tribunal where, as here, it is made to appear that the hearing tribunal is composed of an individual or individuals who investigated, accused, prosecuted and would judge the controversy involved. And where, as here, there is no provision for another tribunal to hear the matter, the Caffrey case stands for the proposition that the superior court is possessed of inherent jurisdiction to hear and determine the controversy on the merits.

The order of the superior court granting the writ of certiorari and restraining the civil service commission from holding a hearing in respondent’s case is affirmed.

Hunter, C. J., Hill and Finley, JJ., concur.