*1 tion on Jerome. Janz concluded that Je- I.Q. upset
rоme’s that he was JO, Appellee, Dennis MAAS crying help, that he had a number depressive symptoms, and that he was a McLAUGHLIN SCHOOL DISTRICT very dependent very individual with low 15-2, Appellant. # important point self-esteem. It is out 17673. Jerome testified as one of State’s wit- Nos. nesses in its case-in-chief. Supreme Court of South Dakota. 23A-24-2(4) provides: Considered on Briefs 1992. jury impaneled After a has been Aug. Decided
sworn, proceed a trial must in the follow- ing order: parties thеn, respectively, rebutting only,
offer unless court, reason, good in further- justice
ance of or to correct an evident
oversight, permits them to offer evi- original
dence their case[.] argues
State testimony properly Janz’
rebutted Picard’s testimony regarding capability.
Christenson’s mental We first testimony
note that Janz’ concerning Je- psychological evaluation,
rome’s if some- conspiracy,
how relevant to the may have admissible State’s case-in-chief.
However, we find it improper rebuttal
testimony as it did not rebut the evidence
presented by Phillips. Christenson or Fur-
thermore, given timing of its introduc-
tion, it had little or no relevance. Brings
Plenty,
However, as with the testimony from
Erdman, Phillips has failed to show how testimony prejudiced Michalek, her. 818-19; Dokken,
407 N.W.2d at
N.W.2d at 498.
Affirmed.
WUEST, HENDERSON, SABERS, and
AMUNDSON, JJ., concur.
MILLER, Chief Justice. McLaughlin (District) ap- School District peals from circuit court’s order which re- versed a decision the school board (Board) to terminate Dennis su- perintendent’s contract. We reverse.
FACTS May Maasjo On Board offered 22, May contract. On 1989, Maasjо executed a written contract of employment with Board. Under con- tract, Maasjo agreed Superintend- to act as McLaughlin ent of the Public for Schools the 1989-90 and 1990-91 school terms. Maasjo not had received his South Dakota teaching presi- certificate at this time. The dent Board executed the contract on 12, June Maasjo
At the time was offered the con- tract, he certified to be ent the states of Montana and North 12, 1989, the Dakota. June South Da- On certified kota Board of Education however, secondary principal; school as he he was at that time that would informed six complete have to additional credit post-graduate hours of courses certified as a administration to become su- in this state. perintendent Thereafter, July 20, Maasjo pre- pared “Application for superintendent for 1989-90 Act” application also set year. The forth which had to plan of courses completion certified. The follow become courses was listed “sum- date for the ’90.” mer president, Wal- Schott, signed application Huffman, Wayne of Johnson F. Gilbert Rosters, Henry approved Dr. was then
P.C., appellee. Rapid City, for Da- Superintendent of the South the State Johnson, Lemmon, The State Board appel- for kota Board of Education. Ronald R. approval authorized of Education’s lant. on a shall made form be 1. Administrative Rule 24:02:02:02.02 division of education. authority An Application to act. author- for less, act, act year An extended ity valid for one granted request of a school administrator for it was issued whom unless temporary per- agreed upon certification completed the work has course but son who has a certificate qualified applicatiоn. in the assignment. application superintendent only to serve as ciously contrary renewing to law in not school term. Maasjo’s contract. The court also conclud- ed that Board’s decision to terminate Maas- meeting January At a board or Febru- jo erroneous and that Board ary Maasjo requested leave to had breached the contract. The court en- *3 “continuing attend summer school for edu- judgment tered Mаasjo in favor of and 9, 1990, April cation.” On Board first against District amount of the Maasjo operating became aware that plus salary interest. Dis- Authority under an to Act. It denied his appeals from this decision. request for leave. 1990, April 16, On Board voted to termi- nate contract because he was not DECISION “certified” to Standard of Review
two-year April term of the contract. On 17, 1990, Board sent a notice which Recently, set forth we the stаndard stated that it did not intend to renew his appeal of review in an from a circuit court contract for the 1990-91 school term. The order which reversed school board deci notice also stated that only Board had re- sion: cently “fully learned that was not applicable appellate Under the rules of certified” position, for the procedure, we must affirm the circuit “require and that it would extensive ab- court unless its dеterminations are clear- sence from for Maasjo duties” to become erroneous, ly There- [citations omitted] provided certified. The notice also that his fore, question is not whether sub- lack of expiration certification and the stantial in supports evidence the record “may plain his to Act constitute Board, decision but whether sub- [the of] violation of contract incompetence” and supports stаntial evidence in the record subjected and him to dismissal. The notice decision the circuit court. [the of] provided Maasjo opportunity to answer Kellogg v. Hoven Sch. Dist. No. 479 present and evidence or a statement on his 147, (S.D. 1991) (emphasis N.W.2d 150 in 25, meeting April behalf at a Board 1990. original). clarify We now that this is the 25th, April Board held an informal appropriate standard of when there review hearing pursuant in executive session essentiаlly is no record for the circuit court president, SDCL 13-43-10.2. Board’s Wal- In Kellogg, review. Board held no for testified oath under that he hearing mal findings and made no of fact signed Maasjo’s application and dated or conclusions of law. The written 20, 1989, but that he was unaware the record of Board’s deliberations was the application Maasjo.2 was for Board then meetings one-page minutes of the and a went into executive session and discussed Kellogg denying petition. letter to his matter. Board voted not to renew Ma- asjo’s contract and to him dismiss when his contrast, case, In in this expired.3 transcript to act meeting was transcribed hearing from this included the record. reporter, sworn, a court the witnesses were evidentiary objections were made.
Maasjo appealed Board’s decision and the findings Board did not enter of fact or hearing. circuit court held a limited de novo law, conclusions of but it did inform hearing, At this the court heard additional 3, May its decision letter on 1990. testimony past from and current board testimony at the circuit de members. The court filed a court’s novo memorandum hearing findings merely “supplementing decision and entered of fact parties agreed they conclusions of law which it concluded the record.” Both arbitrarily Board capri- present testimony had acted should not that had al- fact, termination, allegation Maasjo completed In there was some that he 3. After his Superintendent's application course work and received his in blank. endorsement.
621 hearing. Ed., Mortweet v. ready presented at Ethan Davison “Well, 368, 373-74, Additionally, Cty., the trial court stated: N.W.2d today (1976)). only evidence I intend hear “The circuit court must deter legality Board’s concerning possessed whether mine the board my- I do not intend substitute decision. power make administrative the decision for the (which self here), Board[.]” issue whether “ unreasonably the board acted or arbitrari appeal to Kellogg, we stated: ‘[0]n ly, manifestly or whether the board abused court, pursuant to 13-46- the circuit its discretion.” Lantz In v. Chamberlain limits separation power the doctrine of dep. Sch. Dist. # 254 N.W.2d to that review (S.D.1977). at 149 SDCL 1-26-36.’” (quoting Dale v. Bd. *4 case, In this the circuit court en (S.D.1982)). pro- IV, tered Conclusion of Law which stated: vides: as the decided “Insofar not to renew great weight to give The court shall parties, the contract the between the action findings drawn the made inferences capricious, arbitrary, of Board was and oth agency The by questions of fact. Moran, contrary erwise to law.” Under the the decision of court affirm that this is a determination Board acted the case further agency or remand illegally. determining “In whether or court reverse proceedings. The arbitrary, was ca school board’s decision modify decision substantial if pricious discretion, or an abuse of the cir preju- have rights appellant of cuit court ascertain whether there is administrative diced because the find- support substantial evidence to conclusions, deci- ings, inferences, Moran, 281 at board’s decision.” sions are: added). (emphasis Substantial evi (1) In constitutional or statu- violation of competent means such relevant dence tory provisions; accept might as a mind reasonable (2) authority statutory In excess of the adequate support a conclusion. Id. as agency; of must determine whether Board We (3) procedure; Made unlawful clearly by examining the evi erroneous law; error by Affected other of decision. supporting dence its light (5) Clearly in the en- erroneоus of record; tire evidence in the I.
(6) Arbitrary capricious or character- clearly Board’s decision was Whether ized abuse of discretion or erroneous, arbitrary, capricious, of unwarranted exercise discretion. or an abuse of discretion. findings of A court shall enter its own scope of our review With may af- of law or fact conclusions mind, we turn Board’s decision. entered findings firm the and conclusions Maasjo a notice Board sent part judgment. of agency its that his contract would terminate may award costs in the The circuit court authority to of act. specified chapter expiration and manner amount part: (Emphasis pertinent letter stated 15-17. of superintendent Your words, review is In other No. 15-2 McLaughlin School District determining legality
limited
year
because
only for
valid
one
Rapid
decision. Moran v.
school board’s
superintendent endorsement
lack of
(S.D.
Dist.,
SDCL 13-42-1 plies. Consent is an essential element of a person may No teach or administer in valid contract. SDCL 53-1-2. of the schools of this state or wages teacher, draw as a .principal, or Further, provides: SDCL 53-4-1 superintendent who does not have a cer- apparent An consent real or free tificate issued the secretary of the and is through: voidable when obtained department of education and cultural af- (1) Duress; authorizing person fairs to teach or (2) Fraud; administer in the school or field for (3) influence; Undue or employed. (Emphasis which he was added.) (4) Mistake. statutory provisions
4. Unlike for teacher con- tracts. only Additionally, 53-4-9: cision. This court will interfere with under SDCL if it Board’s decision erroneous. not caused of fact is a mistake Mistake legal duty part neglect recognize We ARSD making the mistake and of the 24:02:02:02.02authorizes a consisting in: Act. Authority to obtain an While ignorance forget- An unconscious Authority Act signed by fact, present, ma- past of a fulness president, approval the school board of a contract; terial to the majority of the members the school (cid:127)present existence required take official action Belief to the contract which thing material as a school board. SDCL 13-8-33. Fur exist, past or in existence does not thermore, Application Authority which has not existed. thing such reality inAct created a new contract be (Emphasis and Maasjo. tween Board binding “No contract shall be signed, At the time the except approved by district it be mistaken belief that Board was under the such, acting annu superintendent. awas al, regular, regularly special called meet fact, impression Maasjo was also under the ing.” Maasjo’s Ap Board never acted on superinten easily could оbtain his he Act, plication nor was it dent’s Once Board became endorsement. existed; therefore, it it even aware that sev aware of lack certification legally binding on Board or the later, right it had the to termi eral months district. Moreover, nate contract. is well “[i]t settled that when statute mode III. contracts of a school dis manner which *6 into may be entered are limited statutory ap- Whether service of notice entering into a con any other manner a peal from school board decision forbidden, impliedly a expressly tract is a member’s validly be served on board compliance therewith contract not made in his child at his home absence. Sully v. Buttes Sch. is invalid.” Minor appeal to the cir Maasjo’s notice of 58-2, (S.D. 50 Dist. No. by the Corson cuit court was received 1984); Indep. Const. Co. v. Schull Webster pro County Sheriff’s Office for service 475, 198 S.D. N.W.2d Dist. No. Sch. рresident, 1990. Board’s Wal cess (1972). Schott, family on farm two lives his applica- facts and the Based these McLaughlin, Dakota. miles south of South Thus, law, the contract was voidable. ble McIntosh, 30 miles from The sheriff drove erroneous, Board’s decision was Dakota, the notice on to serve South capricious dis- arbitrary or or an abuse of at the the sheriff arrived Schott. When cretion. home, out in the field. Schott Schott was appeal The sheriff left notice
II.
daugh
fourteen-year-old
Kara
ter.
president
signature of Board’s
Whether the
Authority Act
Application for
of service was
argues
Board
this method
contract
Board
validated the
between
juris
deprived
courts of
defective
Maasjo.
v.
Dist. No.
See
Avon Sch.
diction.
Reiff
(S.D.1990);
Middle
decision, determined a valid 107, 155 Board and existed between of (1968). sup- did not exist to substantial evidence the contract.
port decision or terminate its SDCL serving shall be taken reiterate, reviewing appeal Such we are We must decision, appeal upon the school de- a notice of not the circuit court’s special committee or member which he resides. If the defendant is a private corporation general and no thereof[J offi- cer, director, managing agent, or other sрecifies who is to be representative 15-6-4(d) mentioned in § served; however, it does not indicate how qualified to receive service can conve- service should made. Because the stat- be found, niently be service be made on question, ute does not answer this both corporation by such leaving copy at the sides refer us to SDCL ch. 15 “Civil Proce- place of business of per- such provisions “personal dure” and the оn ser- son with employee officer or over person- vice of summons” and “substituted age. fourteen al service of summons.” time, urges require At this court strict we hold that the notice of compliance with the SDCL 13-46-3 in order appeal from a school board decision must uniform and consistent adminis- personally pursuant served to SDCL 15- justice. tration of It contends that a 6-4(d)(4)(v); however, pre- this does not personally “school board member” clude the personal use of substituted ser- served, and substituted service does not 15-6-4(e). vice under SDCL Board was jurisdiction. confer Board refers us to the served, properly juris- the circuit court had public section service of summons on a and, thus, diction jurisdic- this court has corporation. 15-6-4(d)(4) provides: tion. The summons shall be served deliv- Because we have determined that Maas- ering copy thereof. Service in the fol- jo’s invalid, propеr- he had no lowing manner personal shall constitute ty right required procedural pro- due service: Minor, Therefore, supra. cess. we do not by Maasjo by address the issue raised No- against If the action be cor- tice of Review. state, poration within this service be made as follows: AMUNDSON, JJ., HENDERSON and (i) Upon county, by serving upon any concur. commissioner; county SABERS, JJ., WUEST and (ii) concur Upon city, by serving upon result. mayor alderman or commission- *7 еr; WUEST, (concurring result). Justice (iii) Upon town, incorporated by I agree this contract was voidable and serving upon any trustee; right Board had the to void the con- (iv) Upon organized township, by my opinion tract. it unnecessary is serving upon any supervisor; and issue, decide the service nor to discuss the (v) Upon district, serv- scope of review. The decision of the trial ing upon any member the school of judge was a mistake in law reviewa- (Em- boаrd or board education[.] of ble this Court and should be reversed. I added.) phasis express opinion no of review 15-6-4(e), refers us to SDCL discussion nor the service issue. provides the
which method for substituted personal service: SABERS, result). (concurring in Justice following Service in the manner shall I reach I would not Issues I or II. would personal also constitute service. If the only. decide this case on Issue III
defendant cannot
found conveniently,
Board is correct that the method of service
by leaving copy
service
be made
a
at
deprived
was defective and
dwelling
presence
house in
courts of
of a
jurisdiction.
family
age
Hardy
member of his
over the
See
of
West Cent. Sch.
49-7,
years
(S.D.1991);
if
fourteen
the defendant re- Dist. No.
... the defendant
conveniently, be made service
leaving copy dwelling at his house family presence of a member of his years[.] age of fourteen
over the