CROSSES POLITICAL LINES Examining The ‘Trial de Novo’ Amendment AUSTIN Amendment 14, popularly known as the “trial de novo amendment,” which will appear on the ballot Nov. 6, is the most controversial proposal to be submitted to the voters. It is not a political issue, in the sense that it is favored predominantly by one party, or predominantly by liberals or conservatives. Some prominent liberals, such as state Rep. John Alaniz or AFL-CIO President Hank Brown, have publicly supported it, while others have worked hard against it. I N EFFECT, Amendment 14, if put into effect, would empower the Texas legislature, if it so desired, to require that appeals from rulings of any or all state administrative agencies and executive offices be tried “de novo,” that is, starting from scratch. At present, almost all such appeals are tried, not de novo, but under the “substantial evidence” rule. There is some debate among certain lawyers as to what is entailed by a substantial evidence rule, but in general, it is thought to be exemplified in the following case: A person goes before an administrative agency, such as a school board or the Railroad Commission or the Liquor Control Board, and a decision or order is made against him. He then appeals to a reviewing court. The court considers either the record of the agency which led up to the original decision, or it considers testimony by that agency as to why it decided against the plaintiff as it did. But in the eyes of the reviewing court, under the substantial evidence rule, the only question which is relevant is whether, at the time the agency made its original decision, there was substantial evidence before the agency to warrant its decision. By “substantial evidence” is meant, according to E. Wayne Thode of the University of Texas School of Law, “evidence regarding which reasonable men could differ.” In other words, the reviewing court does not form its decision as a de novo court wouldafter hearing all the evidence presented by both sidesbut simply upon whether the agency had based its decision upon “evidence regarding which reasonable men could differ.” It is possibleand legally justifiabletherefore, that the reviewing court, after hearing the agency’s and the plaintiff’s arguments, would uphold the agency’s decision, while admitting that had the court made the original decision instead of the agency, it would have decided otherwise. THOSE WHO FAVOR the amendment are primarily those people who feel that such trials under the Return AUSTIN Maury Maverick Jr. was telling this story at an Observer gathering in Houston Saturday. An old Negro from the Mississippi delta died and went to heaven. He was greeted enthusiastically by God. “You’ve lived a life of great dignity and courage,” God said. “We’ve been Proud of you. We up here know how trying it must have been for you in Mississippi. In fact, you’ve done the cause of brotherhood so much good, I’m going to send you back to Mississippi.” The old Negro was reluctant. “Master,” he said, “I’d just rather stay up here. I don’t want to go back down there.” God, however, was persistent. “You have done too much for our cause. You’ve got to go back to Mississippi. I may have to put that as an order.” “Master,” the old Negro asked, “if I go back down there, will you go with me?” “I’ll go as far as Memphis,” God replied. “substantial evidence” rule have led to abuses of the plaintiffs’ rights. Alaniz, state Rep. De Witt Hale, and labor lawyer Sam Houston Clinton argue that corruption exists in many agencies, and that procedures which now accompany appeals under the substantial evidence rule often lead to abuses by bureaucratic hacks who have little respect for a man’s right to a fair hearing. From all indications, the supporters of the amendment are correct in this respect. But it would be a serious mistake to conclude that all the amendment’s opponents disagree with them on this point, or deny the need for reform. The position of the liberals who oppose the proposal is that trials de novo in this particular instance will not remedy corruption or abuse within the agencies, but will rather cause more difficulties. The crux of the matter seems to be the role administrative agencieson the city, state, and national level have come to play in America since the early ‘thirties. Those such as the Railroad Commission, the Texas State Board of Dental Examiners, the State Banking Board, and the fifty other Texas administrative agencies listed in the Texas Bar Journal’s 1961 Directory of Texas Administrative Agencies, have been set up to fill a need which laymen, acting as jurors in a trial court, have not been able to fill. In Thode’s words, “It’s just a fact of life that a jury court cannot decide every kind of problem.” The administrative agency, therefore, is a necessary constitutional part of American life, and a desire to abolish it is mere wishful thinking. And cpponents of the de novo amendment claim this is what the Texas legisla AUSTIN IN THE LIGHT of the Observer endorsement for governor, it is revealing to note that the Dallas Morning News hasfrom the standpoint of its super-Goldwater views on foreign policylikewise been facing a difficult dilemma during this campaign. In the case of this organ of the Texas business establishment, the choice has been and is : whether to go with the Republican who clearly and totally supports the News’ intransigent right-wing foreign policy or go with the Democratic representative of the conservative business establishment whose election can do the most to insure lobby control of Texas politics for the next 10 years. It is a difficult choice for a paper which has manfully striven to earn the posture of putting “principle” above the Yankee dollar. Lovers of principle have been saddened, therefore, to see the News’ unmistakable editorial leanings toward Connally in recent weeks. In editorial after editorial, while taking care to point up the conservative credentials of both candidates, the News has insisted that the conservative wing of the Democratic Party is desperately embattled with the liberal wing and a loss to the GOP in this election would spell deep trouble with the liberals down to road. Deep trouble in the lexicon of the Dallas News means taxes on the oil, gas, banking and utility combine that runs Texas politicsthe kind of taxes a liberal governor would endorse to finance better schools and colleges. The Dallas News has not yet endorsed Connally outright. Perhaps they hope he can win without the painful and overt help from newspapers like the News that have been long noted for their “principle.” By its careful scuttling of Cox, the News has in this election left a record for all to see : regardless of what the paper screams 11 months a year in its editorials on “principle,” it reserves the right during election month to vote its pocketbook. ture would virtually be empowered to do. Of course, Alaniz, being a reasonable man, argues that it would not be necessary for the legislature to require de novo trials in all administrative agencies and executive offices. He feels such trials should be required only in those agencies where members are appointed, not elected by the voters. , But there are two drawbacks to this argument. First of all, in voting for an amendment, one must consider the extreme cases which might come about under less reasonable men than Alaniz or Hale. Such a caseadmittedly extremewould be that the governor’s appointees to any state agency or executive department could be reversed by a trial court. The executive department could be completely emasculated in this and similar cases. THE SECOND DRAWBACK is that instituting de novo trials only in appeals of decisions made by those agencies whose members are elected implies that other agencies are less corrupt and given to abuse. And this is highly doubtful. There is no evidence that an agency is more responsible simply because the members are elected. Is Jerry Sadler, for example, a better land commissioner because he is elected than would be a man, no matter who, appointed by the governor? The opponents of the amendment make two relevant points. First, no other state in the union has seen fit to institute de novo trials in appeals from adr-inistrative agencies. The reason, it is claimed, is because the matters in question are not readily settled by laymen. Second, the federal agencies are, by and large, free from HOMER BIGART in the New York Times reports this week that Americans for Constitutional Action, a conservative political action group, has assigned secret “field men” to 46 conservative candidates for the U.S. Senate and House. They are professional relations men versed in the arts of organizing campaigns, writing speeches, and raising funds. The purpose is to elect conservatives pledged to “safeguard the God-given dignity of the individual and fight against appeasement of the communists and a socialized economy through centralization of power in a mammoth bureaucratic government.” Six Texas candidates were among those receiving assistance : Cong. Bruce Alger of Dallas, congressmanat-large candidate Desmond Barry of Houston, and district congressional aspirants William Steger of Tyler, Ed Foreman of Odessa, Jack Seale of Amarillo, and John Dowdy of Athens. Dowdy is the only Democrat, if one may use that term in the context. THE U.S. CENSUS BUREAU has just published a city and county data book which shows, among other things, that the city with the highest Pasadena, and the city with the lowhas by far the highest number of college graduates in the state. Irving, a Dallas suburb, has the highest percentage of two-car families in Texas. One-half of the desperate citizens of that township must get through the winter with only one car. RALPH McGILL, the syndicated columnist and Atlanta editor, this week quotes President Rufus Harris at the century-old convocation of Mercer University in Macon on the requirement of change which four years in a liberal arts college will require. It is seen against the backdrop of Ole Miss: “The person who cannot change should not enter college,” he said. the corruption which exists to a certain degree in Texas agencies. And evidently, this has not been due to the former’s decisions being subject to de novo trials on appeal. The responsible opponents of the amendment agree with its responsible defenders on basic issues : There exist abuses in certain of our agencies, and these abuses should be done away with. The quarrel is over the means. We find that the arguments against the amendment are the more persuanature of the matters generally considered by agencies demands an expertise which is usually lacking in de stead of an amendment, an extensive study made by legislators and competent jurists, to suggest improvements in the agencies and executive departtroduce legislation to effect these improvements. The legislature now has the power to correct what seems to be certain glaring faults in the agency system. For example, the hearing examiner could be made independent of the agency, as he is in federal agencies. And the present practice which has led perhaps to more abuses than any other in appeals from agency decisions could be changed by the legislature without Amendment 14’s passage, namely, that practice of not keeping any record of the agency’s hearing which led to its decision. In other words, we feel with many jurists of varying political persuasions, that there are more suitable ways of reforming existing abuses of rights in the appeal from agency decisions. C.D. “That is obvious, because if one cannot change he cannot grow. If he cannot grow, he cannot learn. If he cannot learn, he belongs somewhere else. The college years are primarily growth years. To what do you wish to grow? “The inability to grow is the principal condition interfering with attainment of peace and happiness,” Dr. Harris said. “Such a condition is called `neotony’ by the biologist, meaning a determination to remain fixed on an infantile level. This condition could be our greatest national peril. “. . . It is a diehard race hatred an omnibus of racism over which they are now stunnedan example of this neotony? “It is an immensely absurd spectacle at Oxford, Mississippi . . . The whole spectacle is symptomatic of a diehard sentimentalitya condition of neotony. It is a basic confusion of nostalgia with fact . . . How shall a university lead its students out of a moral dilemma? . . . Mature religion is something to live . . . not use .. . I urge you to grow up to this.” CONG. CLARK FISHER, a most enlightened fellow from San Angelo, writes a column ever so often for papers in his district. One of his latest was datelined: “Washington \(NigWALTER ROGERS, the conservative Democrat who is being challenged by Seale, the Amarillo mayor, had a large advertisement in his behalf in the Tulia Herald this week. “Back the Candidate of the John Birch Society?” it asked. “Is it to the Republican Party that this candidate owes his loyalty? Or is it to ‘Robert Welch, the Birch Society dictator, who has made it clear he tolerates no deviation from his rule over Birch Society thought and action?” The ad declares: “Reelect Walter Rogers . . . SENSIBLY conservative.” OBSERVER NOTEBOOK
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