*1 203 opportu must an given the lack of “The trial court be acquittal due to judgment 3) trial; trial correct claimed error before proof nity offered at to acts” “overt (quoting it on accomplice appeal.” review propose to an will failed counsel (S.D. 4) 397, instruction; Heftel, counsel v. 513 N.W.2d 401 trial State jury pattern 1994) (citations omitted)). Even a funda Barr’s regarding to cross-examine failed record; may be waived if not raised prior criminal mental agreement plea ¶ 13, 5) Henjum, 1996 7 at 542 failed make a motion below. SD trial counsel to “a 180-day at 763. The rule is acquittal based on insuffi- N.W.2d judgment court, require to not a of intent rule of constitutional corroborative evidence cient ¶79, 11, 6) Fowler, insurer; v. 1996 trial counsel ment.” State an and defraud omitted). (citations 391, from 552 N.W.2d 393 object testimony elicited failed in a habeas violating Hays may at- raise Hays on cross-examination as part as ineffective hearsay. corpus proceeding of an torney-client privilege and However, he of counsel claim. assistance consistently held We have fail appeal by this issue for direct waived claims ineffective assistance of counsel raise it before the trial court. ing to appeal. on direct will not be considered Therefore, we affirm. (S.D. McGill, 89, v. 536 N.W.2d State 1995) Petersen, (citing v. 515 N.W.2d State MILLER, Chief 18.] [¶ (S.D.1994); Sonen, 687, v. State AMUNDSON, KONENKAMP, and 303, (S.D.1992); v. State GILBERTSON, Justices, concur. (S.D.1989)). Wurtz, 839, 842 436 N.W.2d “However, exception an exists trial was ineffective and
defense at so as to representation
counsel’s ‘so casual’ [the
represent usurpation’ ‘manifest rights.” constitutional
defendant’s] (alterations
McGill,
RULE VIOLATED. April on Briefs Considered Hays he is en claims that Decided June trial was titled to a dismissal because his Rehearing Aug. Denied 180-days within of his first not commenced However, appearance on indictment.
Hays failed to raise this issue below appeal. the first Or
brings it for time on the trial
dinarily an issue raised before appellate not be at the
court will reviewed ¶7, 13, Henjum,
level. State omitted). (citations *2 Farrell,
Patrick M. Ginsbach of Farrell Ginsbach, Springs, plaintiff Hot and appellee. Hinesley,
Ted W. Edgemont, for defen- appellants. dants GILBERTSON, Justice City Former City official of the Edgemont sought and obtained a writ of quo warranto claiming City unlawfully usurped him from position of Street court, and Water Commissioner. The trial Circuit, Seventh Judicial Fall River Coun- ty, issued a judgment in favor of the for- Commissioner, mer restoring him to this City office. The appeals. We reverse and remand. AND
FACTS PROCEDURE [¶ 2.] Leonard (McElhaney) challenges, warranto, via a writ of appointment of Russell Anderson (Anderson) as the Street and Water Com- (Commissioner) missioner for the City of Edgemont (City). From 1977 until the spring of 1998 McElhaney posi- held that During tion. the spring City con- major sidered changes its municipal or- dinances, which would have abolished the position of Water Commissioner held it and substitute with four new managerial positions. alternative, In the City considered retaining Commission- position er but replacing McElhaney with Anderson. McElhaney challenged legal
right City him replace with Anderson firm with a definite and conviction Commissioner, left terminate Com- has been committed.” it had that a mistake in the manner missioner (citations omitted). Questions engaged law done, procedures as well as attempts in its are reviewed de novo. Colton City Council by the ¶ Schwebach, 4, 8, did ordinances. He applicable amend *3 City, with which filing grievance interprets a 771. “This Court stat by so City’s personnel pol- of review authorized under utes under a de novo standard was personnel policy procedures of the icy. When deference to the decision without Jetter, with various meetings which involved In re Estate trial court.” of unsuccessful, McElhaney proved officials 125, ¶ 10, 570 N.W.2d Dako- grievance to the South appealed his as is authorized ta of Labor Department proceed- This personnel policy.
under the
AND
ANALYSIS
DECISION
at this time.
apparently pending
ing is still
period,
time
During this same
[¶ 4.]
jur-
the trial court
7.] Whether
[¶
a writ of
war-
McElhaney
sought
quo
also
through a
this issue
writ
isdiction over
him
declaring
ranto from the circuit court
quo
of
warranto.
to the
of Commis-
to be entitled
quo
writ of
warranto is
The
[¶ 8.]
than Anderson and that
sioner rather
practice of
English
derived from the old
legally
still
existed.
office of Commissioner
merits,
by
authority
king sup
inquiring
what
a trial on the
the circuit
After
Dictionary
Black’s Law
and de-
his claim.
ported
with
agreed
court
1957).
(4th
times,
In
recent
ed.
more
person legally
him
entitled
clared
to be
public
a
it
also been used to command
office.
has
to the Commissioner
what warrant he exer
“by
officer to show
quo
writ of
war-
City appeals the
[¶ 5.]
franchise, having never had
such a
cises
issues,
which is
raising
ranto
several
one of
it,
by
it
any grant
having
or
forfeited
dispositive:
have held
abuse.” Id.
neglect
“[W]e
or
trial court had
Whether the
proper proceed
warranto is the
quo
that
quo
a writ of
over this issue
possession
to and
ing to determine title
warranto.
Kurtenbach,
office.” Burns
public
(S.D.1982); see also Cum
N.W.2d
OF REVIEW
STANDARD
(S.D.
Mickelson, 495
mings v.
N.W.2d
McElha-
The correctness of
1993).
warranto shall
judgment
quo
“A
quo
for a writ of
warranto is
ney’s right
defen
upon
be rendered
ques
review
clearly question
of law. We
dant,
of the defen
upon
right
or both
novo, without deference to
tions of law de
al
party
of the
upon
dant
In re Es
of the trial court.
the decision
office,
justice
leged to be entitled
92, ¶ 7, 583
O’Keefe, 1998 SD
tate of
Burns,
require.”
shall
a trial court’s find-
reviews
This Court
common-law
In
Dakota the
South
‘clearly erroneous’
ings of fact under the
statutorily
quo warranto has been
writ of
a trial court’s
standard and overturns
provides
ch 21-28
recognized. SDCL
only when the trial
conclusions of law
Any
quo
writ of
warranto.
Century
court erred as a matter of law.
a writ of
warranto:
may bring
person
Hoffman,
Realty
21 Associated
(1)
in-
usurp,
any person shall
When
(S.D.1993) (citations
861, 864
into,
unlawfully hold or exercise
trude
omitted). “The
is not whether
question
...;
office
any public
have made the same
this Court would
(2)
did,
...
shall
any public officer
but
When
finding that
the trial court
which, act
or suffered an
are
have done
on the entire evidence we
whether
law,
shall make a for-
provisions
have
[¶ 13.] We
said
adminis
office[.]
of his
judicial
feiture
trative law
any
cases
relief will
require the exhaustion of administrative
21-28-2.
remedies, such as an appeal from a final
City claims the writ is not
decision,
agency
an extraordinary
case because
proper
unit may
Rapid City
be issued.
Area Sch.
remedies,
legal
had other
Hueck,
Dist. v. de
422-23
his
with the
being
grievance
(S.D.1982).
This is because
claim for
City.
with the
agree
of Labor. We
relief,
concerning a cause over
This Court has never direct
which an
juris
administrative
has
question of
ly considered the
whether an
diction,
jurisdictional
constitutes a
defect
*4
quo
may
action for a writ of
warranto
lie
to the claim for
relief. Jansen v.
when alternative remedies are available.1
Union,
Lemmon Federal Credit
However,
persuasive authority
a review of
¶44, 7,
122,
562
124 (citing
N.W.2d
Matter
jurisdictions
from other
and South Dakota
Quash, Etc.,
Notice & Demand to
339
concerning
extraordinary
case law
other
(S.D.1983)).
785,
addition,
N.W.2d
786
In
writs leads us to the conclusion that a writ
any claim over which an administrative
warranto,
quo
being
also
an extraordi
that is raised and
writ,
nary
granted
should not be
when an rejected by
agency,
the
subsequently
is
adequate
remedy
alternative
is available. barred from being retried on the
in
merits
the
jurisdictions
judica-
Other
courts under the doctrine of res
[¶ 12.]
have noted
Kolman,
109,
ta.
v.
quo
that a writ of
warranto is an
Johnson
412
extraordi-
N.W.2d
(S.D.1987).
Talikka,
nary
113
writ. State v.
71 Ohio St.3d
(Ohio
109,
1994).
642
353
“Ex-
N.E.2d
Rickman,
In
Sorenson v.
486
traordinary
quo
pro-
writs like
warranto
259,
(S.D.1992),
261
we held that
extraordinary,
vide
not alternative reme-
15-6-52(a) requires findings
of fact
dies,
they
not
and
will
lie where there
extraordinary
may
relief
issue that
adequate remedy
exists an
in
ordinary
the
a person seeking an extraordinary writ is
(citations
course of the law.” Id. at 354
without any
plain, speedy
other
and ade-
omitted);
Village
see also State v.
of quate remedy in
ordinary
the
course of
Mound,
531,
855,
234 Minn.
However,
law.
here the trial court did
(Minn
(“Where
1951)
the party aggrieved
exactly
opposite by
the
entering detailed
full
may
adequate
obtain
and
in
relief
ei-
findings of fact and conclusions of law
a,
action,
equitable
ther
common-law or
concluding that McElhaney had enforce-
quo
available.”);
writ of
warranto is not
rights
able
under
City grievance policy
Stenberg Murphy,
v.
247 Neb.
and he had not waived them.
(Neb
1995) (“[Q]uo
war-
ranto will not lie where there is another
In
Regents
South Dakota Bd. of
adequate remedy at law equity.”);
Heege,
(S.D.1988),
State
We concluded MILLER, Chief dis quashed should be prohibition KONENKAMP, AMUNDSON considered putes Justices, concur. proceed the case to Allowing Labor. *5 SABERS, conserves dissents. avenues administrative our and is in accord with judicial resources SABERS, (dissenting). Justice relations with executive duty to harmonize operating legisla under agencies branch trial court on I would affirm the authority. Id.4 tive municipality that “failure of the the basis limitations shall with time comply alterna- adequate, In this case an grievance in a settlement of the McElhaney has al- constitute remedy exists. tive remedy,” requested with the is now accordance grievance initiated a ready trial court’s conclu- on the basis of the Dakota jurisdiction of the South under the XIV, XV, XVI, II, IX, XIII, of law clearly It is an sions of Labor. XVII, and XVIII: to allow judicial waste of resources unwise constitutionality We of a statute. noted of the exceptions are: 3. Those in consider- that two doctrines are involved (1) required per- where a Exhaustion is not types these of issues: ation of own, son, through of his does not no fault wrong the purported until after discover the a is applies where 'Exhaustion' application relief. time of administrative for by an ad- cognizable in the first instance (2) required the where Exhaustion is alone; judicial agency inter- ministrative agency to act. fails until the administra- ference is withheld (3) required the where Exhaustion is not 'Primary its course. process has run tive agency have over does not hand, applies jurisdiction,’ the other on subject parties. matter or cognizable originally where a claim is (4) required where the Exhaustion is not courts, play comes into whenever having appropriate jurisdiction has board requires res- the claim enforcement of prior improperly a decision to a hear- made which, regulato- of issues under olution impartial ing biased that a fair and or is so scheme, placed ry been within have hearing cannot be had. competence an administrative special of (5) required in extraordi- Exhaustion is not process judicial body; such a case the nary party faces im- circumstances where pending of such is- suspended referral is protected pending irreparable of a harm body its to the administrative sues adequate grant right cannot and the Co., P.R. States v. Western views. United timely relief. 63-4, S.Ct. U.S. Heege, at 539. L.Ed.2d be issued warranto cannot As a writ Compare Dakota Ed. Ass’n with South plain, speedy and applicant has a where the 84, 9,¶ Barnett, law, in the case now re- exhaustion was not held principle appli- us the exhaustion allegations quired were no of unfair as there primary jurisdiction. than cable rather was that practices and the issue raised labor II. put possession missioner and shall be of that office. Edge- That the action taken 4, 1998, City May mont Council on re- XVIII. Russell garding appointment done in violation of the Anderson was That Leonard is entitled law, 1-25-1.1, Open Meetings office Superintendent of Utilities appointment is not valid. as such put in possession shall be of that
office. anything To do else would “clear- IX. ly an unwise [be] waste re- City, by That the the Utilities Com- sources.” pre- mittee’s failure to act within the upon scribed time limitation the Plain- 4,1998 grievance
tiffs following May
City meeting, Council waived its grievance.
contest Plaintiffs
XIII.
following general election. Corporation, Plaintiff Appellant, XIV.
That Plaintiff is entitled to the differ- Dakota, The STATE of South ence between the pay he has received Appellee. Defendant and following the action of the Council on pay June 22nd and what his would Nos. 20690. have been as Street Water Commis- Supreme Court of South Dakota. Superintendent sioner and Utilities on the date position. he is restored to that Argued April July Decided
XV.
That Russell Anderson is not entitled
to the office of Street and Water Com-
missioner and is ousted from such office.
XVI.
That Russell Anderson entitled
to the Superintendent office of Utilities
and is ousted from that office.
XVII.
That Leonard is entitled
to the office of Street and Water Com-