*1 occurring prior to speaks of convictions charged, being of the violation MOELLER, date Leslie Petitioner plea not to the date Appellant, and currently charged violation. still finds with me and This dissent favor Dakota, Respondent STATE South outright the ma- I cannot concur herein as Appellee. and (a) it, obliquely, as an
jority use seeks to No. 17228. authority but expression of some kind (b) by attempting it to distin- disregard Supreme Court of South Dakota. (c) guish use a Wisconsin it case, approval, would which Argued Jan. writing contravene Justice Wollman’s Aug. Decided joined which I 1984 and still in. believe Layton, opinion, au- unanimous special writer, Grooms,
thored by my
a 1983 unanimous authored
departed colleague, and beloved
Dunn, majority’s charted road for the
decision on issue two. Those decisions two
begot underpinning primary and, majority thus,
rationale of the decision
stare in South upon decisis Dakota founded, thereby following
this case is now majority of decisions in the United 28:9-10,
States. Isaiah From it is learned: knowledge?
“Whom shall he teach And
whom make shall he understand doctrine? milk,
Those who are weaned from the precept
drawn from breasts? For upon precept, precept upon
must be built upon line, line;
precept; upon line line here little, So, likewise, and there little.”
is in learning, world. Law is a
building process. agree,
Essentially, quite simply, upon premise that Gehrke was sentenced statute,
under the habitual offender
22-7-7, it did apply when him. He
must be resentenced as a first offender. *2 attempts The first two were
court.
brought
applications for writs of
as
habeas
Solemn,
Heisterkamp & Moeller filed a February On petitioner appellant. damages pursuant and petition verified petition, ch. 21-32. In this Moeller SDCL Wald, Atty. Gen. Asst. Sheri Sundem damages during his alleged he sustained Gen., Tellinghuisen, Atty. on (Roger A. 10, January pursuant incarceration Pierre, brief), respondent appellee. that was va- judgment of conviction 5, 1987. State filed a mo- cated on March WUEST, (on reassignment). arguing summary judgment, Moel- tion for (Moeller) appeals the deci- Leslie Moeller barred the statute ler’s claim was (Com- of Claims sion of the Commissioner judicial limitations and the doctrines missioner) granting summary judgment on immunity. The prosecutorial Commission- damages against money his claim for granted motion and dismissed er State’s (State) Dakota under State of South appeals. claim. Moeller ch. 21-32. procedure. SDCL State’s granted summary judg- The Commissioner ISSUES ruling claim was barred ment by the claim barred 1. Was Moeller’s 21-32-2, applicable statute of of limitations? statute reverse. limitations. We by the Moeller’s claim 2. Was barred immunity? doctrine of absolute FACTS September Moeller was born ANALYSIS seventeen- a then On November charged arrested and year-old Moeller was of this reaching the merits Before January grand larceny. On contention address State’s appeal, we county dis- appeal. Moeller was transferred jurisdiction to consider we lack court) (juvenile to circuit court trict court matter of this jurisdiction We assert charges an adult. On V, to face criminal as Article Section accordance with 10, 1975, January convicted of Constitution, Moeller was which states: South Dakota larceny and to serve one grand sentenced shall have such Supreme year. provided jurisdiction may appellate occasions, legislature, and the challenged by the On three may issue any justice thereof Court or to and his transfer Limitations Statute of or remedial any original writ which by that and determined then be heard turn merits of We now to the Moel- court. 21-32 generally ler’s SDCL ch. Kurtenbach, State, In Burns remedies addresses *3 (S.D.1982), original regard 21-32-2 specifically this court extended in that SDCL any “Action on in nature of states: on claim contract or jurisdiction to an action the against the be quo held the 1972 constitu tort state shall commenced warranto. We year one same arisen.” jur governing appellate tional within amendment after original added.) (Emphasis Commissioner isdiction of the Court and de way jurisdiction timely circuit courts in no limit termined Moeller’s claim was not granted provisions disagree. powers by prior ed the filed. We regard original jurisdiction to of the damages claim for under SDCL Prior amend Supreme Court. to the 1972 premised upon invalidity eh. 21-32 is the V, ment, provided our Article Section However, conviction. his 1975 because general superintending court “shall have presumed judgments proper- are valid until such control over all inferior courts under vacated, ly Judgments, 46 Am.Jur.2d § regulations may pre and limitations as be very pre- the foundation his claim was Burns, by scribed law.” 327 N.W.2d at precluded absent. sumed thus was bringing his claim his until jurisdictional power intended Our is not was set aside the nobis coram court. Vandemark, See Downton v. legislative replace to role forth un 571 F.Supp. the set Triplett Azordegan, 21-32-7,1 findings (N.D.Ohio 1983); der whereby SDCL (N.D.Iowa 1977). F.Supp. the shall to the Commissioner be submitted Accord- legislature the of a ingly, determination claim Moeller’s claim on “arose” March against review, in granted the state. Our the na the date he was an order certiorari, supervises vacating ture of February 22, the de his His conviction. appoint a circuit judge petition damages termination of court was therefore ed to the timely office commissioner under filed. We the reverse Commissioner &3 SDCL 21-32-1.2 issue. on this hereby reads: 21-32-7 There is office created the of commis- presiding judge hearing, sioner claims. The circuit After the conclusion of such the prepare findings, county fully alleged shall in commissioner itemized, the this state which an respect of the amount contract or tort the state has damages. findings claim or Such shall appoint judge be shall arisen a circuit from the filed in the office of the clerk of courts county in which the action arose county petition filed which and a lies to act ex officio as the commissioner. duplicate filed in thereof the office of the Governor, submit the same to the explained dismiss as 3.I would this case later Legislature next of the session for considera- my special dissent. concurrence and This is the tion, rejection compromise, settlement or hope I first and the last time becomes neces- appropriate findings action. The of the com- sary my writing. for me to dissent to own advisory only, missioner shall and shall explanation majority an believe is in order. A not be construed considered as an ac- deny of the court voted to dismissal of the knowledgment liability any manner or I am the lone dissenter on that issue. extent state. vote, my On the merits without the court is Zinter, Commissioner, acting as entered evenly obligation divided. I feel an to vote on "summary judgment,” dismissing in effect Moel- the merits since the case not dismissed. appeal procedure. ler’s claim without an If this my majority With vote there is a on the merits. jurisdiction court were hold that it to has no rules, Under our in-house the case was reas- appeal, over this we would leave Moeller in a signed majority opinion. for me to write the On position: right appeal most untenable no issue, expressed the dismissal I have views of findings dismissal and which been filed have majority, agree but since I do not with them Legisla- with the Governor for submission to issue, on that I have written dissent to the ture for its consideration. unconventional, majority opinion. Although provides: 2. SDCL step 21-32-1 pragmatic. characterize this advisory only, are and do Immunity the commissioner Absolute 2. Doctrine of acknowledge liability any manner or sovereign immunity urges The State part of extent on the the state. to sustain upon issue as second It is the final is obvious judgment. Moeller summary grant of or not the arbitrator as to whether claim is immunity sovereign is by claiming counters claim, sovereign im- paid. they pay If quote We an issue effect, Or, munity, they may is waived. brief, does not seek reply “Moeller from his payment sovereign on the basis of decline state “liable” prosecutor, or judge, hold immunity, or for other reasons. have his he seeks damages; reported in accordance claim examined Humbert, Conway said in This court *4 referring provisions,” statutory these with 323, 524, 317, 145 N.W.2d 82 S.D. quote 21-32. We further to SDCL ch. (1966): brief, “if the State were allowed provided proce- legislature The a immunity employee or of each to raise investigation dure for the of claims aris- filed every claim ever agent as a defense against ing on contract or tort state seq., no claim could 21-32-1 et under SDCL payment of there are and for the which a result renders considered. Such ever be appropriations. no available SDC meaningless.” the claim statute of claims Supp. 33.43. The commissioner to hear and consider evi- empowered is 21-32-1 agree Moeller. SDCL We findings make and recommen- dence and of commissioner of creates the office spe- legislature. to the This act dations alleged against claims claims to hear provides “findings of cifically fur- or tort. The statute state on contract advisory only, the commissioner shall be act ex provides judge for a circuit ther construed or considered and shall not be the commissioner of claims.4 officio as any acknowledgment liability of in as an procedure for provides 21-32-3 SDCL part or extent on the manner just meritorious filing petition for a and legisla- This statute creates a state.” payment against claim the State instrumentality agency or autho- tive appropriation exists. Service which The or determine rized to by facts. Attorney required is find upon the General the commis- powers and 21-32-4 in the manner of service functions SDCL im- judicial. Sovereign sioner are in The statutes a summons civil actions. and munity the state is not waived hearing direct the commissioner to set a enlarged.5 state.are not of the liabilities the commissioner hears evi- date at which added). (Emphasis to, of, opposition in support dence in or provided such claim. It is further evidence on both the Commissioner We reverse claim in connection with the merits of such issues. conformity with the rules of shall be 21- proceedings. SDCL evidence civil Judge, Acting as HERTZ, Circuit Court requires prepare the commissioner to 32-7 Justice, concurs. Court fully respect to the findings itemized damages the claim or amount of HENDERSON, J., specially. concurs Governor, must filed with the must be AMUNDSON, SABERS, Circuit J. and submit the same to the next session part and dissent consideration, Judge, concur Legislature compromise, Court findings part. rejection. settlement True, says the statute concerning judicial presented not a
4. No issue has been
constitutionality
judge acting
apply
and service of the
of evidence
the rules
commissioner,
any
summons,
express
claims
opinion,
so we
do
but
petition
be made like a civil
shall
Nelson,
Application
but see
83 S.D.
regarding
rules of civil
the other
it is silent
(1968).
However,
issue was not
procedure.
since this
parties, we decline to
briefed
raised or
question
proce-
We
whether
of civil
the rules
upon it.
rule
(i.e., summary judgment) apply.
is
dure
This
WUEST, J.,
specially
clearly
concurs
claim is
ler’s
barred
SDCL 21-
part.
32-2,
dissents
which states: “Action on
on contract or tort
state
AMUNDSON,
Judge,
Circuit
year
be commenced
one
after
within
same
MILLER, C.J., disqualified.
sitting for
(Emphasis added.)
has arisen.”
In the
HENDERSON,
(specially
concur-
fraud, continuing
absence of
treatment or
ring).
representation,
recognizes
South Dakota
concurring
majority opinion
In
rule,
discovery
the occurrence
not the
rule.
chief,
my
Zinter,
is
Kurylas,
Bradsky,
Inc. v.
452 N.W.2d
commissioner,
acting
pro-
as a
must now
(S.D.1990);
114-15
Tappe,
v.
Schoenrock
hearing, prepare
ceed to have a
his find-
(S.D.1988);
419 N.W.2d
199-200
Wells
ings,
pursuant
file them
21-
Billars,
672-73
accomplished
32-7. When he has
this—the
(S.D.1986)
J.,
(Morgan,
dissenting). See
is still
State of South Dakota
not liable for
also Deutz
& Crow State Cement Plant
penny
findings
His
to Moeller.
are advis-
Com’n,
(S.D.1991);
636-37
Dakota,
ory only. South
people,
its
are
Giebink,
Alberts v.
to that extent which
liable
the State
Legisla-
in the
determines
*5
Assembly.
tive
The 1992 State
claim
Since Moeller’s
the state
settle,
may compromise,
reject
or
Moeller’s
minor,
occurred while he was a
he had until
claim.
majority plus
year
one
to assert same.
Henny-
We are not confronted with a
15-2-22(1);
26-1-1. Moeller turned
Penny, catastrophic
sky
situation. The
1, 1979,
September
nineteen on
and his
dropped
fallen because this walnut
into claim has been barred
that
since
date.
the
South Dakota
Court.
SDCL 21-32-2.
Plausible
is not—to hold that
one-
the
occurs,
A claim arises when an event
year statute of limitations via SDCL 21-32-
discovered,
is
subsequent
not when court
2
damage
commences on a
prior
claim
recognizes
ly
judg
the event and vacates a
the
the
date
was vacated
concerning
ment
that event. This court
Judge
damage
McKeever—when no valid
has never before held that a claim did not
can
made before that time—for
until
arise
the date a
subsequently
court
such a conclusion
run
would
afoul of the
judgment concerning
prior
vacated
constitutional infirmities
the statute of
opposed
event
the
date of
event
limitations struck
in Daugaard
down
v.
Ass’n.,
Co-op.
majority opinion
Baltic
itself. The
Bldg. Supply
349
discards all
(S.D.1984).
N.W.2d 419
prior case
concerning
law
the “occurrence
“discovery
rule” and the
adopts
rule” and
SABERS,
(concurring
in part and previously
presumably
rule
unknown
to be
in
dissenting
part).
judgment
called
“vacation of
rule.” I
agree
I
part
that this
jurisdiction
respect
court has
want
of this new rule and
appeal
over this
but
fully
would hold that Moel-
dissent therefrom.*
*
irony
of this
consistently
case is exceeded
We have
held
that
constitu-
disruption to settled law:
tionality of a statute cannot be raised for the
Industries,
appeal.
first time
1.
on
Carr v.
The settled law tossed
Core
is
out like an old
pair
(S.D.1986);
Johnson,
Bayer
of shoes.
392 N.W.2d
v.
2.
1984);
The “new rule"
(S.D.
could haunt
for
Mayrose
this court
The
is not
there
whether
has been
opinion
majority
on the matters the
does
wrong,
a termination of a
but whether
join.
Judge
As Senior
Aldisert states:
there
been a determination that
of a majority opinion may
author
wrong
existed. Even with
benefit of a
placed
position
in a
where other members
rule,
discovery
our decision Moeller I
willing
of the majority
go
are not
February
down on
handed
far as he does.
such
Under
circum-
possible
the last
discovery
this is
date
stances,
entirely
it is
proper for the ma-
purposes
had
available
jority-writing judge
concurring
to add a
SDCL 21-32-2.
opinion of
own.
[his]
given
Although hindsight has
us an ad-
Opinion
11.4,
Writing,
(1990).
at
§
vantageous
view
the statute of limita-
question,
legal
tions
strategy
question
the propriety
light
damage
of his
claim was not timely.
setting
court
aside the judgment1 in re-
brought
sponse
gratuitous
Moeller could have
corum
nobis
advice of
dissenting
at
time after his 1975
Sabers
conviction or
Moeller When
Moeller could have
II.
Jones sentenced
*7
contested
use of the
Moeller, Runge
State,
v.
S.D.
any subsequent
conviction in
pro-
habitual
(1971)
N.W.2d 381
was the law and is re-
ceeding
an
because
invalid conviction may
spectable authority
validity
of the
support
not
supplemental
be used
in-
judgment.
twice,
We denied habeas
albeit
formation
habitual offender status.
procedural
reasons.
as it may,
Be that
Garritsen,
Application
See
376 N.W.2d
judgment
coram nobis
ap-
was never
(S.D.1985).
Moeller could have
pealed and
an
its correctness is not
issue in
brought
any
a claims action
time after his
this
release from
incarceration
1975. This
leads
the long-held principle
me to
provides
SDCL ch. 21-32
office of
ignorance
legal rights
does not toll a
pro-
commissioner
claims.
It further
statute of limitations. Larson v. Ameri-
appointment
vides for the
judge
of a circuit
Brake, Inc.,
can
Wheel
Whether
court applies the occur-
prepare
commissioner shall
[T]he
rule,
rence
discovery
or the
fully itemized,
record
findings,
respect
clearly reflects that Moeller was aware
damages.
amount
the claim
or
Such
the defect in his
hearing
transfer
findings
at least
shall be filed in the office of the
continuing
2. A
tort is
based
continued
1.
un-
We note
Circuit
Zinter was not the
continuing
lawful
acts
not on
ill effects
judge
judgment.
circuit
who set aside the
original
from the
unlawful act. Collins v. Unit-
Inc.,
Airlines,
(9th Cir.1975).
ed
petition was CREDIT PRODUCTION ASSOCIATION Governor, of the MIDLANDS, filed the office federally THE OF char next the same to the session shall submit corporation, Appel tered Plaintiff and consideration, com- Legislature of the lee, rejection by ap- settlement or
promise, v. findings of the propriate action. Holm, Mary WYNNE and John only, and d/b/a advisory shall be commissioner Holm, Wynne and a South Dakota Pro construed or considered Corporation, fessional Defendants and liability acknowledgment an Appellants, of the manner or extent on state.
By plain chapter, terms of this Dakota, N.A., Bank First of South appointed judge circuit does not act as a Banking Corporation. Dakota South judge. appears It to me he is an Appellee. Defendant and Legisla^ agent since the the final decision as to whether ture makes Nos. 17298. may paid. claim is This violate or not a Supreme Court of South Dakota. Applica- separation powers doctrine. Nelson, 83 S.D. tion of Argued March (1968). Aug. Decided Finally urges of this the State dismissal seq. 21-32-1 et does
appeal because SDCL provide appeal.2 for an Since the com legislative
missioner of claims is a instru Humbert,
mentality agency Conway (1966), and no S.D. appeal to this
provision is made for an
Court, grant the State’s motion to would Dept. Transp. dismiss. Dakota South Freeman,
Although appeal, I would dismiss the
majority of the court holds otherwise. majority opinion accord-
have written the
ingly. *8 Sabers, „not Dept. Please read South Dakota
2. For the benefit of Justice I am an Freeman, urging grounds constitutional for dismissal of Transp. v. infra. statutory grounds appeal, rather lack of