Kevin FINCK, Plaintiff and Appellant, v. CITY OF TEA, a Municipal Corporation; Harry Reshetar, individually and as Mayor of the City of Tea; Don Gerdes, Police Commissioner and City Councilman; Henry Hagemeyer, City Councilman; Myron Roth, City Councilman; and Delayne Parlet, City Councilman, Defendants and Appellees.
Nos. 16350, 16353.
Supreme Court of South Dakota.
June 28, 1989.
Argued March 21, 1989.
443 N.W.2d 632
Affirmed.
WUEST, C.J., and MORGAN and SABERS, JJ., concur.
HENDERSON, J., concurs in result.
HENDERSON, Justice (concurring in result).
Evidence of
(1) furnishing or offering or promising to furnish, or
(2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible....
It would be extremely dangerous for negotiation letters, either before or during litigation, to be displayed to a jury. Lawyers would be afraid to negotiate and so would lay people. To excise, neatly and nicely, the bad from the good (admissible from inadmissible) in a communication requires a finely honed legal scalpel. It can be done, competently, by a circuit court judge in a trial to the court. Additionally, he/she has the benefit of the Hagin rule. In a jury trial, this is a far more difficult task, as the inadmissible and admissible may be inextricably interwoven in the fabric of the exhibit. What, then, does the trial judge do? Does he use a scissors or razor blade? Does he rationalize: “There‘s no way for me to nicely cleave, so I reject admission of the exhibit entirely.” This admissibility/inadmissibility question can present an extremely difficult position for a trial judge. One device, employed by some judges, is to block out the inadmissible. This can be dangerous also, because it can destroy the true meaning of the exhibit, and the jury may be left in a state of bewilderment as to the overall intent of the message in the particular instrument. Each exhibit and set of facts must be decided to produce truth, and not to mechanically serve a rule of evidence.
James A. Eirinberg of Carlsen, Carter, Hoy & Eirinberg, Sioux Falls, for plaintiff and appellant.
Michael J. Schaffer and Susan Jansa Brunick of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and appellees.
MILLER, Justice.
PROCEDURAL HISTORY
Kevin Finck (Finck) was fired as police chief for the City of Tea (City) and thereafter brought an action against City and its mayor and councilmen alleging wrongful termination, breach of contract, retaliatory discharge, negligent wrongful termination and intentional infliction of emotional distress. Finck‘s complaint also contains a count alleging defamation, which appears to be exclusively directed against Councilman Henry Hagemeyer.
Defendants (appellees) moved for summary judgment. The trial court granted summary judgment holding (1) that there was no contractual relationship between the parties; (2) that because South Dakota is an employment-at-will state, appellees were entitled to judgment as a matter of law on the wrongful termination, breach of contract, intentional infliction of emotional distress, and negligent wrongful termination counts; (3) that Finck had not established a genuine issue of material fact on the retaliatory discharge count; and (4) that the statements attributed to Councilman Hagemeyer were an opinion and not slanderous as a matter of law.
The trial court denied part of appellees’ motion for summary judgment on the grounds that Finck‘s claim against City is barred due to failure to give the notice required by
In this appeal, Finck argues that the trial court inappropriately granted summary judgment, generally challenging all of the rulings made thereon by the trial court. By notice of review, appellees assert that
Other than the defamation issue, we need not address the issues raised by Finck because, unlike the trial court, we conclude that
FACTS
Because of the limited nature of our holding, a short recitation of the facts is sufficient. Finck was hired as City‘s chief of police in 1984. There was no formal contract of employment. The city council met in executive session on August 4, 1986, and concluded that his employment should be terminated. On August 6, the mayor, in the presence of Councilman Gerdes, met with Finck and advised him that his employment was terminated for several reasons (Finck was given an opportunity to resign but declined). A written list of those reasons was subsequently furnished by the mayor to Finck‘s counsel.1 Finck ultimately commenced this action.
DECISION
I
A MAYOR IN AN ALDERMANIC FORM OF CITY GOVERNMENT HAS THE STATUTORY POWER TO TERMINATE APPOINTIVE CITY OFFICERS.
First, it must be observed that in an aldermanic form of government the mayor is the city‘s chief executive officer.
In an aldermanic-governed city the mayor shall have power except as otherwise provided to remove from office any officer appointed by him, whenever he shall be of the opinion that the interests of the city demand such removal, but he shall report the reasons for his removal to the council at its next regular meeting.
This court has previously held that this statute gives the mayor “full and absolute power to remove appointed officers whenever, in his opinion, the interests of the city require it[.]” State ex rel. Dickson v. Williams, 6 S.D. 119, 125, 60 N.W. 410, 412 (1894). See also Kierstead v. City of Rapid City, 248 N.W.2d 363 (S.D.1976) and Baker v. Jackson, 372 N.W.2d 142 (S.D.1985) (holding abrogated on other grounds by 1986 S.L. Ch. 73, § 1, codified at
We note that it is within the exclusive province of the legislature to determine terms under which employment may be terminated. As we have so often noted, the legislature by
We hasten to emphasize and point out that this holding applies only to “appointive officers” as that term is defined by
It is interesting to note that prior to a 1985 amendment, the definition of appointive officers under
II
STATUTORY NOTICE TO A PUBLIC ENTITY IS MANDATORY BEFORE A TORT CLAIM MAY BE FILED AGAINST IT.
City asserts that the trial court erred in refusing to grant summary judgment2 in its favor due to Finck‘s failure to provide notice in accordance with
No action for the recovery of damages for personal injury, property damage, error or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.
Notice shall be given to the attorney general and the following officers as applicable:
....
(3) In the case of a municipality, to the mayor or city finance officer[.]
Clearly, Finck‘s causes of action dealing with intentional infliction of emotional distress and retaliatory discharge sound in tort.3 In order to commence suit on those counts, the provision of statutory notice was mandatory. It would not be necessary, however, to give the notice on his contract-based claims. However, because we have previously held that the mayor had authority to terminate Finck, we need not reverse the trial court on this issue.
III
STATEMENTS MADE BY COUNCILMAN HAGEMEYER WERE NOT SLANDEROUS AS A MATTER OF LAW.
Finck alleged, and it appears to be undisputed, that Councilman Hagemeyer at various times called Finck names and insulted him by using words or characterizing him as a “dumb son-of-a-bitch” and “incompetent” in front of the city council and other third persons. He argues that these statements, coupled with his termination, damaged his reputation as a faithful and diligent employee and law enforcement officer.
Epithets such as those used by Hagemeyer are not generally considered to be
We find, as a matter of law, that Councilman Hagemeyer‘s statements constitute an opinion and therefore the trial court was correct in granting summary judgment. See Lewis v. Time Inc., 710 F.2d 549 (9th Cir.1983).
For all of the foregoing reasons, summary judgment is affirmed.
WUEST, C.J., and MORGAN, J., concur.
HENDERSON, J., specially concurs.
SABERS, J., concurs in part and dissents in part.
HENDERSON, Justice (specially concurring).
Although I come under the conceptual umbrella of the majority opinion, and therefore concur, I step out to note the rain which fell upon Baker v. Jackson, 372 N.W.2d 142 (S.D.1985). Rain is ordinarily refreshing. Abrogation of our ruling in Baker, as noted in the majority opinion, was acid rain.1 A Legislature must stay within its own separate branch of government. The Legislature cannot interpret the constitution. The courts in this State have this function. In Baker, in its abrogation, the Legislature assumed the power to interpret the State Constitution. Thoughts which are borrowed from this nation‘s history can lend a certain dignity to the preservation of the respective branches of government. See, The Federalist Nos. 47-51 (J. Madison) (on separation of powers). See, also,
Any legislative decision of a governing body is subject to the referendum process. A legislative decision is one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision.
No administrative decision of a governing body is subject to the referendum process.... Hiring, disciplining and setting the salaries of employees are administrative decisions.
In defining what is legislative, can the Legislature redefine itself? How can a Legislature interpret a document (State Constitution) which created it? It should not and cannot, within the framework of constitutional government. As Alexander Hamilton explained:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. It is not otherwise to be supposed that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
The Federalist No. 78, at 524-5 (A. Hamilton).3 The United States Supreme Court is in accord:
The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.
I.N.S. v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317, 345 (1983). Whether actions are an exercise of legislative power depends not upon their form but upon “whether they contain matter which is properly to be regarded as legislative in its character and effect“. Chadha, 462 U.S., at 952, 103 S.Ct., at 2784, 77 L.Ed.2d, at 345. “Legislative” is for the judiciary to define, not the legislative branch.
SABERS, Justice (concurring in part and dissenting in part).
I concur on Issues I and II. As against Henry Hagemeyer, I dissent on Issue III, defamation, and on intentional infliction of emotional distress, which was not discussed in the majority opinion.
As indicated in the majority opinion, Councilman Hagemeyer called Finck names and insulted him by using words or charac-
(3) Tends directly to injure [a person] in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit[.]
“The law has always been very tender of the reputation of tradesmen, and therefore words spoken of them in the way of their trade will bear an action that will not be actionable in the case of another person.” Prosser & Keeton, The Law of Torts § 112 at 790-91 (5th ed.1984) (quoting Harman v. Delany, 2 Strange 898, 93 Eng.Rptr. 925 (1731)). See also Groseth International, Inc. v. Tenneco, Inc., 440 N.W.2d 276, 281 (S.D.1989) (Sabers, J., dissenting).
The correct procedure for determining the meaning and defamatory character of a communication is set forth in Restatement (Second) of Torts § 614 (1977) which provides:
(1) The court determines
(a) whether communication is capable of bearing a particular meaning, and
(b) whether that meaning is defamatory.
(2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient.
Groseth, supra at 279, 283.* Likewise, in Bego v. Gordon, 407 N.W.2d 801, 812 (S.D. 1987), we held concerning defamation: “Whether a tort was committed is a question of fact for the jury.” Although the words “son of a bitch” alone may come within the majority‘s conclusion of non-actionable opinion rather than fact, when determining whether a statement constitutes opinion or fact the court must “examine the statement in its totality in the context in which it was uttered or published.” Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980); see also Lewis v. Time, Inc., 710 F.2d 549, 553 (9th Cir.1983). In the context that these words were spoken (at city council meetings and at a cafe in the presence of third persons), the words “dumb son of a bitch” and “incompetent” ridicule Finck in his business or profession because the public may think there is nothing worse than a “dumb cop.” This statement is actionable and not privileged and malice is presumed. See
Likewise, whether Hagemeyer‘s conduct constitutes intentional infliction of emotional distress is a proper question for the jury. Pickering v. Pickering, 434 N.W.2d 758 (S.D.1989); French v. Dell Rapids Community Hospital, Inc., 432 N.W.2d 285 (S.D.1988); Wangen v. Knudson, 428 N.W.2d 242 (S.D.1988); Wright v. Coca Cola Bottling Co., 414 N.W.2d 608 (S.D. 1987). In French, supra at 289, this court concluded that it was proper for the jury to determine whether an employer‘s treat-