circuit court issued an interlocutory order remanding the case where disciplinary board had failed to "make findings of fact and draw conclusions of law in accordance with § 536.090" and further ordering the superintendent to read and consider the full record and transcript created by the board before issuing any disciplinary action
How later courts described this case
- circuit court issued an interlocutory order remanding the case where disciplinary board had failed to "make findings of fact and draw conclusions of law in accordance with § 536.090" and further ordering the superintendent to read and consider the full record and transcript created by the board before issuing any disciplinary action
- disciplinary board recognized authority of superintendent to impose discipline “when in its findings after the first hearing it only recommended to the superintendent that [trooper] be fired.”
- “An administrative agency or board may weigh testimony and choose to believe or disbelieve all or part of it, but it may not set up a test or standard for credibility which requires the party not having the burden of proof to establish the incredibility of the witness for the party having the burden of proof.”
- Highway Patrol had the burden of proof to sustain the reason for dismissal of a trooper
Written by the judges who cited it.
The opinion
SOMERVILLE, Judge,
dissenting.
I respectfully dissent in part and concur in part.
My dissent lies with the strained logic of the majority opinion that Finding No. 30 of the Board erroneously shifted to Gamble the burden of impeaching Ms. Sears’ credibility as a witness.
Put in proper perspective, under Finding No. 30 the Board found Ms. Sears’ testimony to be more credible than that of Gamble and observed that Gamble had not offered any evidence attacking Ms. Sears’ credibility as a witness. To hold, as does the majority opinion, that such erroneously shifted the burden of proof to Gamble is tantamount to saying that the offering party carries the burden of attacking the credibility of his or her own witnesses. It is axiomatic that it is incumbent upon an opposing party to attack the credibility of an opposing witness, not upon the offering party to attack the credibility of his or her own witnesses as the flawed logic of the majority opinion would have us believe. Addressing the issue in terms of erroneously shifting the burden of proof, as does the majority opinion, distorts the entire matter and injects a totally false issue which has neither logic, fact nor case authority for its support. In pure, simple terms, the Board found Ms. Sears’ testimony credible and observed, albeit somewhat ineptly from a standpoint of pure legalese, that Gamble had not attempted to attack her credibility *510 on what appeared to the Board to be potentially salient grounds.
I would affirm the judgment of the Circuit Court affirming Gamble’s dismissal.