Fulda, Carl H.

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A PROPOSED "ADMINISTRATIVE COURT"FOR OHIO*CARL H. FULDA**The Administrative Law Committee of the Ohio State Bar Asso-ciation has prepared a bill to amend the Ohio Administrative Pro-cedure Act' "for the purpose of creating an Administrative ReviewCommission." This novel and imaginative proposal for the reformof administrative law deserves wide publicity and approval in prin-ciple prior to its introduction in the next legislature.Under present law, any party affected by an order of an agencyadopting, amending or rescinding a rule may appeal to the Court ofCommon Pleas of Franklin County.2 An appeal from an adjudicationorder denying admission to an examination, denying issuance or re-newal of a license or suspending a license may be filed with the courtof common pleas of the county in which the place of business or theresidence of the licensee is located.3 In adjudication cases, that courtshall review the record prepared and certified by the agency and mayaffirm the agency's order if it finds, "upon consideration of the entirerecord, and such additional evidence as the court has admitted,4 thatthe order is supported by reliable, probative, and substantial evidence,and is in accordance with law."5The proposed legislation would substitute for the court of com-mon pleas an "administrative review commission," consisting of tenmembers, one from each of the ten judicial court of appeals districts.The Governor would appoint the members, with the advice and con-sent of the Senate, for ten year terms. The members of the Commissionmust be members of the Bar in good standing and have practicedlaw for at least five years prior to their appointment. The rules ofevidence in civil actions tried without a jury would be applied in allhearings before the Commission. Appeals from the decisions of theCommission would go to the Courts of Appeals.* This is a revised version of an address delivered at the annual meeting of theAdministrative Law Committee of the Ohio State Bar Association in Dayton, on May19, 1961.** Professor of Law, The Ohio State University.I Ohio Rev. Code -Ch. 119.2 Ohio Rev. Code § 119.11.3 Ohio Rev. Code § 119.12. Appeals from orders of the Board of Liquor Controlmay go to the Court of Common Pleas of Franklin County.4 Such admission is prescribed for newly discovered evidence which could notwith reasonable diligence have been obtained prior to the agency hearing.5 Ohio Rev. Code § 119.12. For the standards of reviewing rules see Ohio Rev.Code § 119.11."ADMINISTRATIVE COURT"The "administrative review commission" would, obviously, be ajudicial body with jurisdiction to review the orders of administrativeagencies.6 On the state level, this would apparently be a pioneerventure without precedent. 7 On the other hand, recommendationsfor establishment of federal administrative courts of original juris-diction have been much debated in recent years." The opponents ofthese recommendations emphasized that a complete separation ofjudicial from rule-making or executive functions is neither feasiblenor desirable.' For instance, the power of the Interstate CommerceCommission to determine what rates are just and reasonable shouldnot be split off from the power to award to shippers reparation whenunjust rates have been exacted from them. The exercise of both ofthese powers is based on the same considerations of fact' ° and requiresthe same knowledge of intricate economic data. Hence, initial deter-minations by the members of the agency are required if the taskentrusted to the agency is to be expertly performed.These very sound objections are, generally, not applicable to theproposed "administrative review commission," which is primarilydesigned as an appellate or reviewing body. Hence, the danger ofparalyzing the agencies' programs, which is the principal argumentagainst administrative courts of original jurisdiction, does not exist.The "administrative review commission" would simply take the placenow occupied by the courts of common pleas in reviewing the validityof administrative orders. Its job would be comparable to that of theBoard of Review in the Bureau of Unemployment Compensation"6 The term "agency" is defined in Ohio Rev. Code § 119.01 as including stateagencies. Chapter 2506 of the Ohio Revised Code, added in 1957, provides for appealsto the court of common pleas from decisions of political subdivisions of the state.7 For a summary of legislative developments in state administrative law seeDavis, Administrative Law Treatise, Vol. 1, at 33 (1958).8 For a brilliant analysis and critique of these proposals see R. W. Minor, "TheAdministrative Court; Variations on a Theme," 19 Ohio St. L. J. 380 (1958). Davis,op. cit. supra, note 7, at 31.D Minor: op. cit. supra, note 8, at 395.10 Minor, id., at 396.11 The Committee's bill would grant to the administrative review commissionexclusive original jurisdiction in proceedings to suspend or revoke a license, presumablyon the ground that these involve discipline for misconduct which should not beimposed by an administrative body. The answer is that the expert administrators shouldhave the first, but not the last, word as to whether the conduct of the licensee con-stitutes such a serious threat to the public interest as to require such discipline. I would,therefore, suggest deletion of this provision.12 Ohio Rev. Code § 4141.06. See Fisher, "Claims Administration in the OhioUnemployment Compensation Board of Review," 12 Ohio St. LJ. 69 (1951). TheBoard of Tax Appeals also has appellate jurisdiction [Ohio Rev. Code § 5703.02(E)],but this is not its sole function.OHIO STATE LAW JOURNALwhich differs from the "administrative review commission" only inthat the Board's jurisdiction is narrower and its members are not pro-tected by as long a tenure as is proposed for the "administrative re-view commission."The purpose of creating that commission is fairly obvious: Theissues arising in cases involving the validity of administrative adjudi-cations or rules are "not within the conventional experience ofjudges,"'13 in this instance common pleas judges, and, therefore, wouldbe better handled by a tribunal of experts. In other words, "expert"administrators should be supervised by "expert" judges who haveacquired-preferably prior to their appointment-specialized knowl-edge of and experience in the problems of administration and are,therefore, thought to be better qualified than overburdened commonpleas judges to provide the fair adjustment between the rights of theindividual and the interest of the state which we call justice. Moreover,centralization of such case in one tribunal would promote uniformityof decisions, which would be further enhanced by allowing directappeals from the commission to the Supreme Court.14The idea of a judicial body which reviews exclusively the val-idity of administrative action has heretofore been accepted in theUnited States only in a few particular fields of law.'5 The proposedcourt with appellate jurisdiction covering all administrative stateagencies would be an innovation which may disturb traditional notionsthat specialization is not desirable because it may lead to narrowrather than broad perspectives. However, such an attitude wouldignore the expansion of public law in this century; indeed, an "admin-istrative court" reviewing all orders and rules issued by all admin-istrative agencies could hardly be called over-specialized.The merits of the present proposal for Ohio cannot be fullyappreciated without reference to European experience where "admin-istrative courts" have existed for more than a century. In fact, France,West Germany, and many other countries' 6 have two separate sets18 Far East Conference, et al. v. United States, et al., 342 U.S. 570, at 574 (1952).Mr. justice Frankfurter's frequently quoted phrase referred to the intent of Congressin establishing the Federal Maritime Board.'4 Such appeal is presently allowed from final orders of the Public UtilitiesCommission, Ohio Rev. Code § 4903.13. The bill in its present form provides for appealsto the Court of Appeals.15 The Tax Court and the Court of Customs and Patent Appeals are federalexamples. See Frankfurter, "The Business of the Supreme Court of the United States---A Study in the Federal Judicial System: IV. Federal Courts of Specialized Jurisdiction,"39 Harv. L.R. 587 (1926).16 Belgium, Italy, Turkey, and Greece.[Vol. 2 2"ADMINISTRATIVE COURT"-of courts: the regular law courts which deal with private and penallaw, and the administrative courts which provide the forum in whichthe citizen may challenge the legality of administrative action allegedto violate his individual rights. Since France was the first and prob-ably the most successful country in adopting and implementing sucha system,17 a brief summary of the reasons for its creation and of afew illustrative cases may be in order.The theory of administrative jurisdiction rests, to a considerableextent, on the proposition that the judges of the law courts do notpossess the necessary competence in administrative problems; there-fore, the legality of administrative action should be determined byjudges who have such competence. Indeed, the leading British com-mentator concluded:No Administrator can in France rationally adopt the attitude. . . that the [administrative] judge has reached a decision with-out appreciating the context in which the decision has to operate:he cannot claim, . . . that he, the civil servant, knows, and thejudge does not know, the necessities of administration. This ad-ministrative judge has a higher technical competence than any ofthe administrators whose act he is judging .... 18The recruitment of the administrative judges is, thus, of crucialimportance. 9 In France, the national administrative court, whichreviews the acts of the national government and hears appeals fromlocal administrative tribunals on matters involving local officials, isa part of a larger organization known as the Council of State. TheCouncil is divided into one judicial section and four administrativesections. The latter act as advisers to the Executive, preparing opin-ions on legal questions and drafting bills and regulations. The func-17 See Schwartz, French Administrative Law and the Common-Law World (NewYork, 1954); Von Mehren, The Civil Law System 250-336 (1957); Hamson, ExecutiveDiscretion and judicial Control (London, 1954); Letourneur, "Control of Govern-mental Action to Prevent the Violation of Individual Rights," 21 Ohio St. L.. 559(1960).1s Hamson, op. cit. supra, note 17, at 66. Schwartz, op. cit. supra, note 17, at 321,observes that the French administrative judges "need assume none of the leave-it-to-the-expert attitude that has too often dominated the work of Anglo-American courts inthis field."19 In Germany, it is considered elementary that only persons with at least severalyears experience in the executive branch of the state or federal governments will beappointed as administrative judges. Koehler, Verwaltungsgerichtsordunng (1960), p. S.(A commentary on the statute establishing the administrative courts and regulatingtheir practice and procedure.) Many of the French administrative judges held highexecutive posts before their appointment or came up through the ranks after passingcompetitive examinations. Schwartz, op. cit. supra, note 17, pp. 30, 31; Hamson, op. cit.supra, pp. 46-43.1961]OHIO STATE LAW JOURNALtions of the judicial section are separate and independent from thoseof the administrative sections. Members of the latter may be trans-ferred to the former, but, thereafter, may not participate in the ad-judication of a controversy involving a matter with which the memberwas officially concerned while serving in the administrative section.The judicial section, whose members are protected by life tenure,has frequently annulled a regulation proposed by one of the adminis-trative sections.2A few cases picked at random, but dealing with generally signifi-cant issues, may illustrate the work of the judicial section of theCouncil which proceeds entirely on a common-law type case-by-casebasis:The fundamentals of what we call procedural due process arejealously guarded. For instance, in one case refusal to renew a licenseto operate a news stand was set aside. The Council held that the grantof the privilege to use the public street was revocable at will, but sincethe police had charged the operator with misconduct, the latter wasentitled to an opportunity to defend himself."Not only the reasonableness of executive acts, but also themotivation of officials are subject to judicial scrutiny. Thus, theCouncil set aside an order by a mayor limiting the number of taxistands on the ground that the order "was made.., not in the interestof traffic regulation but to satisfy the demands of the taxi-drivers'association."2 Administrators must at all times be ready to justifytheir conduct. In a case which attracted wide attention a Cabinetmember had removed the name of an applicant from the list of candi-dates for the competitive examinations required for admission to theNational Academy of Public Administration. The excluded candidateobtained a judgment setting aside the exclusion. The Cabinet memberhad refused to permit judicial inspection of petitioner's file, and thiswas held to corroborate the charge of arbitrariness.23The standards of judicial review are strict with respect to bothlaw and fact. For instance, a local government had imposed a specialemergency property tax on half-occupied buildings in accordance witha statute authorizing such a step in municipalities suffering from asevere housing shortage. The court found there was no such shortageand, therefore, annulled the tax. 420 For detailed discussion of the organization of the Council of State see Schwartz,op. cit. supra, pp. 23-42 and Hamson, op. cit. supra, pp. 58-69, 74-76, 78-83.21 Dame Veuve Trompier-Gravier, Von Mehren, op. cit. supra, note 17, at 280.22 Trapy, Von Mehren, op. cit. supra, p. 318.23 Barel, Von Mehren, p. 319, Hamson, pp. 24-40, 201-204.24 Commune de Veules-Les-Roses (1948), Von Mehren, p. 329. The decision is[Vol. 22"ADMINISTRATIVE COURT"These all-too-brief examples indicate that the protection of thecitizen's rights against abuse or excess of administrative power is theaim of the administrative court. In fact, the French seem to gofurther than we do in at least two important respects: First, the caseof the emergency tax indicates that the Council of State will inquireinto facts when the statute makes the existence of certain facts thecondition for the challenged act. In Ohio, judicial review under thepresent Administrative Procedure Act "falls short of providing for atrial de novo, ' 25 and with respect to appeals from local bodies the courtmay inquire into the facts only if a statute explicitly so provides. 6Second, the case involving the regulation which limited thenumber of taxi stands, and other similar cases,27 indicates that theFrench go further than our courts by permitting inquiry into themotivation of administrative action. To be sure, an obvious abuse ofpower, as occurred in a recent Ohio case where a civil service employeewas told his job had been abolished and immediately thereafter anotherman was hired to perform the same service,28 will not slip by. Butwhere the regulation or adjudication appears reasonable on its face,as in the taxi-stand matter, motives will usually not be considered. 29All this demonstrates the achievements of a tribunal which servesthe same purposes as the proposed "administrative review commis-sion." ° The present eminence of the French Council of State, andother similar systems, is the result of a long tradition which we couldcomparable to Crowell v. Benson, 285 U.S. 22 (1932) which affirmed a judgment grantinga trial de novo on the question whether the beneficiary of an award under the Long-shoremen and Harbor Workers Compensation Act was an employee within thepurview of that act. Contra, South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251(1940).25 Andrews v. Board of Liquor Control, 164 Ohio St. 275, at 280 131 N.E.2d 390(1955).26 See Sorge v. Sutton, 159 Ohio St. 574 113 N.E.2d 10 (1953), holding that OhioRev. Code 143.27 authorizing appeals to the court of common pleas from decisions ofa municipal civil service commission removing police officers or firemen did notauthorize a trial de novo. The section was subsequently amended by providing for anappeal "on questions of law and fact." The proposed bill should be amended by givingto the "administrative review commission" jurisdiction to hear appeals from municipalbodies. No valid constitutional objections could be perceived, since this should be amatter of general law. See Ohio Constitution, Art. XVIII, Sections 3 and 7. The amend-ment of Ohio Rev. Code 143.27 has not been challenged.27 Von Mehren, op. cit. supra, pp. 316-320.28 State ex rel. Click v. Thormyer, 105 0. App. 479 151 N.E.2d 246 (1958).29 See Davis: Administrative Law Treatise, §§ 12.03 and 12.04 (1958) and Ad-ministrative Law (Hornbook, 1951) p. 379.30 An important difference would and should remain: The proposed bill allows anappeal back into the regular appellate courts, while the Europeans maintain theseparateness of civil and administrative jurisdictions at all stages.1961]740 OHIO STATE LAW JOURNALnot match in a hurry. But the basic philosophy of the institution seemssound and deserves the most serious consideration. As noted earlier,the recruitment of qualified persons3' to serve on the proposed bodywould be an indispensable prerequisite for its success. This shouldnot present an insuperable obstacle to adoption of the Committee'sproposal which is a stimulating contribution to the endless effort ofimprovement.31 Ten members would be too many. Three would be sufficient. The ten yeartenure would be discriminatory against other judges, but that would be an argumentfor lengthening tenure generally. The proposal reflects apprehension that anythingshort of ten years would not guaranty protection against political pressure, which, inview of the commission's jurisdiction, could be expected.

A Proposed Administrative Court for Ohio

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A Proposed Administrative Court for Ohio

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