*1 868 management and superintend trial its internal concerning remarks of the
opinion judge constitutionally-mandated carry that trial out it evident its judge, becomes fray. highest from the For it not true that the not remained aloft duties. has (S.D.1987), state, Tesch, any as a Court Supreme N.W.2d 880 such Tesch v. 399 court writer, state, writing for a unanimous there is special particularly this where this Court, trial this same System affirmed a decision as we constitution- a Unified Judicial Dakota, concerning him his obli- judge inherent ally but cautioned have South has the system gation power to remain neutral: to see a court within its that independence integri- protect dignity, Finally, we mention the numerous shall effective, ty so as to make its lawful actions by the trial gratuitous questions asked just citizens it fair and for the over whom avoided. Such a should be court. they responsibility and to that bears a see judge not be in arena of A trial must are treated fair? it questioning nay—he preside must over — may neutrally judiciary” power rule. that he The term “inherent that exis- means which is essential to the Tesch, 885. 399 tence, court dignity and functions of the made to the Code of Judicial Reference is very that it from the fact is a court. A(4): Conduct, judge “A be Canon 3 shall Integration Bar In re Nebraska State litigants, dignified and courteous to patient, Ass’n, 265, 283, 133 275 267 Neb. N.W. witnesses, lawyers jurors, and others (1937). capacity judge deals an official whom Kaiser, himself, Failing authority, I to recuse vote to remove ...” For refer State v. Thus, (S.D.1993). Therein, 96, employ inherent we him. I would declared, protective saying “It that device on goes without doctrine as as it judge populace of the trial have behalf of is basic actions words any impact jury.” rely concept implicit court and it is on the I also definite Clague, provisions v. our State Constitution which Blomquist the case of judicial (N.D.1980), Supreme re Court created branch. See In Great- where the (1933). house, it to in the best 189 Minn. North Dakota found be N.W. integrity interests of and fairness of
judicial process remove circuit court
judge. It this to be remembered expressed trial previously this
Court longer inject personal judge should no his Marilyn COX, Appellee, Petitioner and proceedings. frustrations and biases into the said, I have best As would be in the v. justice judge this interests trial SIOUX FALLS SCHOOL DISTRICT himself this case I refer to remove from 49-5, Appellant. Conduct, the same of Judicial Canon 3 Code Lynn ADLER, Appellee, Petitioner and himself, Failing E. to remove this Court enter him from should an order remove justice the case so that the best interests SIOUX FALLS SCHOOL DISTRICT sought playing will be on an even field. Sev- 49-5, Appellant. attorneys case, representing eral in this dif- 18350, 18351. Nos. parties, requesting ferent have briefs They judge that this trial are removed. Supreme Dakota. Court South such, repre- As their Officers Court. Briefs Considered on Jan. 1994. supplications sentations and entitled to are April Decided recognition under these facts. May Rehearing Denied Remand followed. instructions were not power This Court the inherent has —and duty jus- see that the administration —to power fair. has tice is And it also inherent *2 Luce, Evans, Davenport, Hur-
Michael L. Smith, Falls, appellant. witz and Sioux Allen, Hagen, Thomas K. Wilka and Rita Archer, Falls, appellees. Wilka Sioux & SABERS, Justice. appeals determinations
School District
grievances concerning
prior teach-
properly
experience were
filed or
correctly
decided. We affirm.
Department’s Decision.
FACTS
issued an
April
the circuit court
On
Cox
Grievance of
affirming the Order of
Judgment
Order
(Cox)
employed
Marilyn Cox
appeals.
Department. District
*3
(District) Au-
District
Falls
Sioux
School
Grievance Adler
of
the
gust,
For
1988 as
teacher/librarian.
(Adler)
employed by
Lynn
was
Dis-
Adler
salary,
her
Cox was
purpose of
elementary
in 1988
an
school counsel-
trict
years
experi-
of
given
prior
four
credit for
for her
given full credit
one
or. She was
the
from
with
District
ence as
librarian
prior
as a counselor work-
year
of
for
also received credit
1968 to 1972. Cox
at Summit Oaks but
ing with K-12 children
teaching in
dis-
years of
other school
three
for
only given
years
ten
of credit
her
she was
her
not receive credit for
tricts. Cox did
years
the
of work at
seventeen
marketing
public
and
for
work in
relations
(DSS). According to testi-
of
Services
Social
University
Dakota
the
of South
School
superintendent
mony by
Pru-
then assistant
Medicine,
administrative assistant for
as an
(Gushwa), Adler was awarded
dence Gushwa
Falls, or as
for
City of
librarian
the
Sioux
only
upon the informa-
partial credit based
1982 to 1988. Cox
dis-
Citibank from
provided regarding the
tion that Adler
extent
give
putes
failure of the District to
her
the
counseling K-12 children
of her involvement
years with Citibank.
credit for her
working
while
for DSS.
grievance hearing
at her
be-
testified
Cox
grievance
during her
hear-
Adler admitted
Labor
Dakota
fore the South
the
ing that
informed her at
time of
Gushwa
hired,
the time
(Department) that at
she was
employment
put
Step
on
her
that she was
given
that she was
understood
she
salary
but that she had been
on
schedule
teaching
experience and
years
seven
relate
steps
informed that the
did not
neces-
experi-
credit for her
that she was
sarily
years
experience.
to the
There
a librarian for Citibank. She also
ence as
conflicting testimony as to whether Adler
Dis-
that she was unaware of the
receiving
that she was not
was ever informed
giving credit
practice
trict’s
for non-teach-
years
with DSS.
credit
all of her
ing experience at that time.
12, 1991,
griev-
January
Adler filed a
On
31, 1991,
May
grievance
Cox filed a
On
alleging
Harris
Superintendent
ance with
as a
alleging that she was hired
librarian but
violation,
inequita-
misinterpretation, and/or
years
for the
was not
credit
she served
application
negotiated agreement
ble
griev-
Library
Director of Citibank. The
give
failed to
her
because
District
credit
failure
alleged that
Cox
ance
years
for more
10 of her 18
with
than
DSS.
violation, misinterpretation
was a
credit
grievance.
Superintendent Harris denied the
I,
application
inequitable
of Article
and/or
hearing
grievance
After
in executive ses-
IV,
Article
Section F of the
Section C and
sion,
unanimously
denied the
Agreement.
Superintendent
Negotiated
A hearing
ance.
was held before
grievance.
John Harris denied
23, 1992, Department
ment and on October
(Board)
grievance
heard
School Board
granting
grievance
issued an Order
Adler’s
July
on
1991 and
Executive Session
appeal
directing
and
to cease
District
and
vote,
grievance.
denied the
three to two
applica-
interpretation
from
and
desist
like
hearing
negotiated agreement.
tion of the
District
grievance
A
was held before the
pay
pre-
and
pay
was ordered to
Adler back
Department on December
1991. On Oc-
23, 1992,
judgment
place
her on
an
interest and
tober
issued
Order
appeal
directing
proper salary
granting
grievance
line
conformance
De-
Cox’
partment’s
desist
District
De-
to cease and
from like inter-
Decision.
April
pretation
application
negotiated
partment’s
Decision and on
Judg-
agreement.
pay
Cox the circuit court issued
Order
ordered
affirming
Department.
pay
pre-judgment
and to ment
the Order
back
interest
appeals.
place
in con- District
We issued an Order consol-
her on the
line
Department’s
idating
appeals
with the
Decision.
June
formance
grievances
years
experi-
Whether
she was not credited for her
timely
Citibank,
filed.
ence as a librarian for
but that she
was unaware of
giving
District’s
Initially,
argu
address
we
District’s
non-teaching experience
at that
timely
ment that
failed to
Cox
Adler
file
Adler,
time. As to
there was conflicting
grievances pursuant
their
testimony as to whether she understood at
policy.
Department’s jurisdiction
“The
the time she was hired that she was not
lost
is not
filed in
being given
years
full credit for her
at DSS.
grievance procedures.”
accordance with
appears
It
both Cox and Adler filed their
Dist.,
Rininger
County
v. Bennett
Sch.
grievances
days
discovering
within 35
(citing
Schloe
inequitable crediting
prior experience,
*4
106,
Indep.
Lead-Deadwood
Dist. No.
Sch.
which
“alleged
was the
violation.” District
(S.D.1979)).
610,
Whether a
has failed to show that either Cox or Adler
question
was
filed is sat
discovering
on their claims after
Dis-
fact,
clearly
reviewed under the
erroneous
crediting prior
trict’s manner of
standard.
Id.
found that Dis
for other teachers in similar circumstances.
by declining
trict waived its defense of notice
(District’s
See
ment was not waived. deference to Board’s deci- Cox and Adler claim that District has sion and an incorrect stan- inequitably applied, misinterpreted, or violat dard of review. negotiated agreement ed the and its own argues Department applied credit to be According incorrect standard of review. past experience. their According District, original because Board was the provided Professional Staff Handbook decisionmaker, Department must defer- employ Cox and Adler at the time of their ence to Board’s factual determinations under ment, a ... “teacher shall file formal SDCL 1-26-36 and reverse (35) thirty-five days within of the arbitrarily capriciously, acted or or abused violation, (35) alleged thirty-five or within its discretion.1 days alleged when the violation was dis covered, diligence or reasonable The correct standard of review of adminis (Emphasis should have been discovered.” findings trative of fact and conclusions of law added.) great length was discussed at in Permann v. above, Labor, As stated Dept. Cox testified that she South Dakota (S.D.1987). understood at According the time she was hired that to Per- (3) provides: 1. SDCL procedure;- 1-26-36 Made unlawful give great (4) law; weight The court by shall to the find- Affected other error of ings by agency made and inferences drawn (5) Clearly light erroneous of the entire evi- questions may of fact. The court affirm the record; dence in the or agency decision of the or remand the case for (6) Arbitrary capricious by or or characterized proceedings. may further modify The court reverse or abuse of discretion or unwarranted rights the decision if substantial of the exercise of discretion. appellant prejudiced have been because the findings A court shall enter its own of fact inferences, findings, administrative conclu- may and conclusions of law or affirm the find- sions, or decisions are: ings by agency and conclusions entered (1) statutory In violation of constitutional or part judgment. may of its The circuit court provisions; (2) speci- award costs in the amount and manner statutory authority In excess of the agency; chapter fied in 15-17. 3-6A-38, may law, §in be provided for cases mann, the issue is “[w]hen labor, if agency department the administrative the decisions depart- fully reviewable. appeal court are is filed with the circuit notice of question of we days issue is a the final thirty When ment within administrative body ascertain whether is mailed governing decision (citations Id. at 116 clearly erroneous.” depart- employee. The or delivered omitted); 1-26-36. SDCL investiga- conduct an ment labor shall an order hearing shall issue tion agree is the correct standard this While we raised, order is covering points which by the trial court of review of govern- employees and the Permann, binding on the under Kleinsasser this court Nothing in this section agency. mental Rapid City, 440 N.W.2d depart- giving the (S.D.1989),2 appeal may interpreted of a school this was not an under or power grant to the circuit court tenure decision of labor board ment 13-46-1; SDCL faculty employed ch. 13-46. SDCL to a member promotion 6; Dist. No. 53- Kellogg v. Hoven Sch. regents. (Emphasis add- board of 13-46 - (S.D.1991) (“In 147, 149 Dale ed.) Education, Etc., 316 N.W.2d v. Board of *5 given to the school Deference is not (S.D.1982), appeal ‘on to the we stated in a by department decision the board’s 13^46-6, court, the pursuant to SDCL circuit In 3-18-15.2. grievance review under SDCL separation power of limits the doctrine imagine how deference it is hard to 1- in SDCL scope provided of review to given by department to board’s could 26-36.”’). Rather, appeal of a this was an are no when there factual determinations Department of to the school board decision in the record to re factual determinations Rininger, 3-18. under ch. See Labor SDCL Rather, a bind department issues view. (noting that when Rin- 468 N.W.2d at investigation upon based its own order attempt appeal Board’s decision inger’s See Klein hearing. and SDCL 3-18-15.2. dis- under ch. 13-46 was circuit court SDCL (Henderson, J., sasser, 440 at 738-39 missed, Rininger appealed Department 3-18). griev (stating that in a Accordingly, concurring specially) under SDCL ch. 3-18-15.2, a proceeding 3-18- under of review is found SDCL ance SDCL standard 15.2, by public employee a is re provides: complaint filed which by to determine viewed
If,
following
grievance proce-
existing agreement,
an
there is a violation of
body,
by
governing
dure enacted
unresolved,
regulation).3 The circuit court
except
policy,
rule or
grievance remains
adjudicating upon
reviewing
and
McCauley
We are here
Dakota Sch. Mines and
2.
v. South
In
Tech.,
(S.D.1992),
proceedings pertaining
a
we stated:
4. Whether pay pre- Judge, concur. thority to order back judgment interest. MILLER, C.J., HENDERSON, J., argues that dissent. authority necessary to award back lacked JOHNSON, sitting Judge, Circuit that De pay prejudgment interest and AMUNDSON, J., disqualified. impermissibly invaded Dis partment’s order legislative power to determine teach trict’s MILLER, (dissenting). Chief Justice ers’ salaries. my opinion, Department, In I dissent. court, circuit and the have failed Rapid City, 248 Kierstead give proper to Board’s decision. deference (S.D.1976), this court stated that N.W.2d 363 without to order grievance was not in a 1. Adler’s be, effect, pay it would set- back because timely manner. ting municipal officer. “We 3-18-15.2 the held that under SDCL finding agree I erred grievances authority to act ment has of failure to District had waived its defense not involve the exercise of executive do timely grievances, file but dissent as to performance of a legislative or or the majority’s grievances conclusion that both setting governmental function. The of sala- in a were filed manner. municipal governing ries for officers The record indicates Cox filed her body municipality legislative such a thirty-five days discovery ance within of her (cit- at 427 function.” gave nonteaehing ex- that District 366). Kierstead, no perience and that she had received prior non-teaching experience. for her “materially We found Kierstead distin- Therefore, agree Cox’ was filed however, in guishable impediment,” and no *7 timely in a manner. Dist., Rininger County 468 v. Bennett Sch. Rininger, Department at 427. In N.W.2d However, majority recognizes, as the “[a]s reinstatement of a teacher who was ordered Adler, testimony conflicting there was position taking denied a a leave of to whether she understood at the time she payment salary of absence the teacher’s being given was hired that she was not full appeal, that “the differential. On we held years response at In credit for her DSS.” salary payment Rininger’s ordered of differ- “you you question were aware when were impermissibly any ential does not invade sal- hired, not, you you were not ary-setting legislative power governmental or your experience,” past a full credit for work
function.” Id. “[tjhat’s answered, Adler correct.” At the least, very Adler’s admission she knew at the case, Rininger, Department this was hired had not time she she been pay had order back because it past experiences full her change did not the salaries Cox and Adler required her to exercise “reasonable dili- paid equitably would have been had District gence” investigate any alleged violation. “teaching experience” the term and, Instead, years she waited three to even in- placed them at their at correct levels quire many years how she had been credited employment. their time of Id. affirm We with. the circuit court’s order that ordered “[t]he impermissi- Contrary majority’s pay back with interest does not claim of review un- standard, bly any legislative salary-setting pow- invade der a erroneous whether a governmental timely of er or function of the board. was
875
Ed.,
Cnty,
to deter Mortweet v. Ethan Bd.
Davison
of which is restricted
review
of
(1976)
580,
241
90 S.D.
N.W.2d
582
mining
legality of Board’s decision.
Ed.,
(quoting Dunker v. Brown
Dist.,
Co. Bd.
80
281
Rapid City
v.
Area Sch.
Moran
of
193, 203-204, 121
10,
(1963));
(S.D.1979).
17
S.D.
N.W.2d
595,
Where there
N.W.2d
599
Ed.,
Tschetter v. Doland Bd.
302 N.W.2d
testimony
conflicting
as to when Adler
of
(S.D.1981).
43,
majority opinion
48
rec
diligence
discovered or
reasonable
ognizes
separation
power by citing
this
violation,
alleged
should have discovered
(S.D.
Ed.,
Dale v. Board
316
108
N.W.2d
strong pre
Board’s determination carried
1982).
separation
“The constitutional
good
sumption
being
made in
faith. Jones
away
by legisla
cannot be done
Sch.,
Sully
340 N.W.2d
v.
Buttes
tive action.” Id. at 111.
(S.D.1983).
carry
Adler has failed to
her
showing
However,
the decision was arbi
mistakenly ap
burden
then
trary, capricious
or an abuse of discretion
plies the
erroneous standard of SDCL
support
findings by
due to lack of substantial evidence to
factual
1-26-36
review of
Moran,
at
properly considering
Board’s decision.
281 N.W.2d
rather than
Therefore,
majori
legality
Kellogg
599.
dissent as to the
of Board’s decision.
v. Ho
Dist.,
(S.D.
ty’s finding
in a ven Sch.
479 N.W.2d
153-55
that her
was filed
1991) (Miller, C.J., Henderson, J.,
dissent
manner.
Dist.,
ing); Rininger v. Bennett Co.
Sch.
(Henderson, J.,
failed
Dale,
dissenting);
876 li- in the District who had school boards. were librarians Department, not local Water college clearly inapplicable brary experience at the level and had These decisions are prior experience. this case. not received credit for that Harris, superintendent, Dr. District’s John Furthermore, by applying different stan- policy give cred- that District was to depending on whether a dards of review in K-12 only prior for work with children appeals a school board decision di- teacher age range. rectly circuit court under SDCL 13- Department under 3-18- 46-1 or to Moreover, proof in cases the burden of 15.2, majority encouraging both ano- alleging party such as this is on the who is shopping malous and forum teach- results at 425. the violation. Pierce, Accord, ers. Selle v. proof not sustained when The burden of (S.D.1993) (stating Dakota has an South probabilities equal. Mehlum v. are Nun discouraging shopping). interest forum Ass’n, Cooperative da 74 S.D. (cid:127) (1952). evi reviewing a school board decision N.W.2d The balanced When 3-18-15.2, simply Department presented and the dence in this record does under SDCL give court must deference to Board’s circuit not sustain Cox’ and Adler’s burdens only They may applied reverse if there is a showing inequitably decision. support prior experience. lack of substantial evidence for decision, thereby showing a board board’s dissent, Department failed to show arbitrarily, capriciously acted or abused its Board’s decision as to whether District had Moran, 281 at 599. The discretion. inequitably applied “teaching expe- the term applies court. same to this crediting past experience rience” was arbi- trary, capricious or an abuse of discretion. give failed Clearly support there is substantial deter- to Board’s decision in deference Board’s refusal to Cox no “teach- mining inequit- whether the District ing” experience library credit for her time as ably applied “teaching expe- the term Citibank; and, similarly, director at crediting past experience rience” in good to limit ten had reason Adler’s credit to salary placement. years of her seventeen with DSS. See majority recognizes, As the “whether the Inv., Inc., v. Bechtold Winner inequitably applied the term ‘teach- (stating we will not seek experience’ is a of fact.” There- findings). reasons to reverse trial court’s It fore, may only Board’s decision be reversed appears to me that ma- arbitrary, capricious if it was or an abuse of jority improperly searching are for reasons discretion. to reverse the Board. majority clearly acknowledges there “conflicting testimony concerning Dis- authority had no prior application ‘teaching experi- trict’s change claimants’ rates. conflicting ence.’” Where there was testi- “[Ujnder [of SDCL 3-18-15.2 the Director mony, Department must defer Department] act has to Board’s decision that District grievances that do not involve the exercise of “teaching experience” equitably. term Dr. legislative power gov- an executive or Sessler, superin- Pam current assistant performance ernmental or the of a *9 personnel, tendent of was not governmental function.” Kierstead v. practice give personnel (S.D.1976). Rapid City, 248 N.W.2d experience dealing outside of setting legisla- The of teachers’ salaries is a age group. children in the K-12 Dr. Gushwa delegated. that tive function cannot be Id. testified the District was to experience serving majority attempts equate credit for work K-12 stu- this case dents, Rininger related to adults. and differentiate it from Kier- Moreover, although by claiming Department she testified that she stead did not “im- names, longer specific permissibly any salary-setting legisla- could no recall there invade every the affairs of school district in this governmental function.” Rin power or tive Kierstead, (citing state, giving appropriate at 427 inger, 468 N.W.2d rather than defer- 366). disagree. ence to the decisions of local citizens who authority by have been that Rininger, this court found electorate. See Riter v. Woonsocket Sch. authority because its had not exceeded Dist., any change the “not in manner order did (Miller, C.J., Henderson, J., dissenting); Kel- paid had the would have been he 153-155; logg, 479 N.W.2d at him.” 468 N.W.2d at District' hired materially from what the That is different 428-430. Department’s or-
majority sanctions here. changes the salaries claimants received der I am authorized to state hired, they specifically what at the time HENDERSON, J., joins in this dissent. authority Department had no this court said Rininger. do in Majority recognize fails to im- exceeds its
ment’s order infringes legislative
permissibly on Board’s Again, salaries.
power to determine teacher majority seeks to
it would seem that manage “super school board” and
become a