880 N.W.2d 69
S.D.2016Background
- Moreau-Grand Electric Cooperative applied to Dewey County Commission to erect a distribution line along a section line right-of-way adjacent to Margaret Upell’s property under SDCL 31-26-1.
- The Commission held a hearing, voted to approve the application, and published its minutes on March 18, 2015.
- Upell filed a notice of appeal to the circuit court on March 25, 2015 and served the notice by mail on Coop’s counsel and the Dewey County State’s Attorney, but did not serve any member of the county commission.
- Coop intervened in the circuit-court appeal and moved to dismiss for failure to serve a commissioner as required by SDCL 7-8-29; the circuit court granted dismissal for lack of jurisdiction.
- Upell argued service on the county’s attorney (and substantial compliance with rule-based service) was sufficient; the court rejected that and affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether circuit court erred in dismissing appeal for failure to serve a commissioner | Upell: service on county attorney and by mail satisfied service rules and due process; substantial compliance doctrine applies | Coop/Commission: SDCL 7-8-29 requires service on one member of the board; failure is jurisdictional | Court: Dismissal affirmed—strict statutory service required; lack of service deprived court of subject-matter jurisdiction |
| Whether SDCL chapter 15-6 service rules can substitute for SDCL 7-8-29 | Upell: SDCL 15-6-5 permits service on a party’s attorney and completion on mailing | Commission: Statutes governing appeals (7-8-29) control over general civil rules per 15-6-81; 7-8-29 prescribes who must be served | Court: 15-6 does not override specific statutory requirement; 7-8-29 controls the appellee to be served |
| Applicability of substantial-compliance doctrine | Upell: substantial compliance with service rules should cure defect | Commission: Jurisdictional prerequisites cannot be excused by substantial compliance | Court: Doctrine not applied to jurisdictional statutory prerequisites; strict compliance required |
| Whether prior cases permit mail/service on county attorney instead of a commissioner | Upell relied on Bison Twp. and Vitek | Commission: Distinguish those cases because they involved different defects or contexts | Court: Vitek/Bison consulted for method of service but do not override 7-8-29’s requirement here; service was insufficient |
Key Cases Cited
- Schrank v. Pennington Cty. Bd. of Comm’rs, 584 N.W.2d 680 (S.D. 1998) (strict compliance with statutory service requirements is jurisdictional)
- Bison Twp. v. Perkins Cty., 640 N.W.2d 503 (S.D. 2002) (service by mail can be timely under civil rules where applicable)
- Vitek v. Bon Homme Cty. Bd. of Comm’rs, 650 N.W.2d 513 (S.D. 2002) (consulting chapter 15-6 for method of service but recognizing 7-8 controls timing and recipient)
- AEG Processing Ctr. No. 58, Inc. v. S.D. Dep’t of Revenue & Regulation, 838 N.W.2d 843 (S.D. 2013) (jurisdictional questions and statutory interpretation reviewed de novo)
- Wagner v. Truesdell, 574 N.W.2d 627 (S.D. 1998) (substantial-compliance doctrine applied narrowly and distinguished on facts)