South Dakota Board of Regents v. Meierhenry

RE OF DAKOTA BOARD SOUTH

GENTS, Appellee, Applicant and MEIERHENRY, Secretary of the

Judith Labor, Respondent Department of Appellant, (a/k/a Melinda Sanderson

Melinda Metzger,

Heegel), Richard Loretta Interest,

Kline, Real Parties Zeman and the

James Council (COHE), Real Parties

Education Appellants.

Interest

Nos. 14353. Dakota.

Supreme Court of South

Argued Feb. 1984. July

Decided Braun, &

James E. Carlon of Gors Pierre, appellee for Bd. Gen., Pierre, Dale, Atty.

Richard Asst. Mark respondent appellant; for Y. Gen., Pierre, Atty. Meierhenry, brief. Boyce, Murphy, McMahon of

James Falls, Greenfield, McDowell & Sioux Melinda Sanderson. party real interest 451 deaf, Wilka, blind, a school for Bjerke Hagen & Sioux Karen and all other Falls, Zeman and the educational appellants may James institutions that be sus- (COHE); wholly Educ. Thomas tained either part Council or in by the Fаlls, Wilka, Hagen K. Wilka of & Sioux state shall be under the control aof the brief. board of ‍​‌‌​‌‌​‌​‌​‌​​​‌​​​​​‌​‌‌​‌​​‌‌​‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‍five appointed by members Governor and confirmed the senate

FOSHEIM, Chief Justice. under such rules and restrictions as Legislature provide. Leg- shall The Zeman, Higher Ed- James the Council of may islature increase the number of Secretary and the of the South ucation members to nine. [Emphasis appeal of Labor added] peremptory prohibi- issuance of a writ of equal With clarity 3 Sectiоn authorizes the reverse. tion. We legislature to restrict that control. Board Carter, 40, secretary 89 S.D. 228 prohibited of la- writ (1975); Foss, N.W.2d 621 assuming jurisdiction mat- See also Boe v. bor from 295, (1956); 76 involving qualifications, S.D. 77 N.W.2d 1 employment ters State College Development salaries and em- Association v. Nis 287, sen, (1938); ployees at under the control of 66 S.D. institutions 281 N.W. 907 Jones, 64, It the South Dakota Board of Johnson v. 52 S.D. 216 N.W. 584 (1927). response grievance was issued in and politi- It does not that board practice which charges autonomy. unfair had been cal Consequently, the board of department by, filed with the or on regents labor govern- not fourth branch of of, professionals pursuant such behalf independent legislative policies. ment ch. Meister, 121; SDCL 3-18. Resolution of these dis- Carter, 89 S.D. putes required department 40, would have Legislative powers 228 N.W.2d 621. of labor to make decisions 554, remain. v. Dailey, State 57 S.D. 234 prohibited by three areas court circuit (1931). N.W. 45 writ. Conversely, legislature does not The issue before us is whethеr regulate have unbridled license to board of XIV, SDCL ch. 3-18 violates Article Section regents activity. Constitutionally authoriz per 3 of the South Dakota Constitution stop ed “rules and restrictions” must short mitting department of labor to exercise removing power. all ch. 3-18 SDCL approach ques jurisdiction.1 such We restricts, cannot, not, but and does eradi tion mindful of the law enact settled Carter, cate control. 89 S.D. legislature upheld ments of the should be N.W.2d 621. they clearly unmistakably unless are аnd ch. 3-18 enacted in 1969 to SDCL unconstitutional. South Dakota Board of employees’ permit organization public Meister, (S.D. Regents v. 309 N.W.2d 121 unions, applies to SL 1981); T.L.J., People in Interest many employees of institutions ‍​‌‌​‌‌​‌​‌​‌​​​‌​​​​​‌​‌‌​‌​​‌‌​‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‍under (S.D.1981); Hinesley, N.W.2d 800 In Re regents SDCL 3-18-1. board control. 150 N.W.2d 834 S.D. practices by public It defines unfair Article Section 3 structures ployer department authorizes the a board with control over state educational practice provi- labor to enforce the unfair institutions:2 sions. SDCL 3-18-3.1 3-18-3.3. and SDCL university, agriculture depart- ch. 3-18

The state SDCL also authorizes grievances college, the school of mines and technolo- ment of labor to hear decide schools, following the gy, normal a school for the which remain unresolved legislature board 2. The carried this constitutional 1. The has otherwise restricted out by designating of ally subject control. That control is constitution- mandate a nine member “board 3-6A-12, SDCL to SDCL 3-6A-37 regents.” SDCL 13-49-1. and SDCL 3-6A-38. South Dakota Board of Meister, (S.D.1981). Regents v. untouсhed, gov- controlling permis- 3-18 is but a grievance procedure short, sible restriction on the exercise of that body. SDCL 3-18-15.2. erning did, however, control. We in so conclud- open SDCL ch. 3-18 provisions ing, misread which is evidenced hear of labor to way department for the excerpt: in this Carter practice and decide unfair salaries, qualifications addition, In matters Worzella v. Board of Re- Education, employees at institutions discharge supra, of that a states regents allowing control. delegate under board of statute the board to its authority stop “empow- must short of 3 in Article Section Appellees read ering) delegate away the Board to all of signifi gives little or no which a manner powers duty its or its constitutional restric “under such rules and cance to the control.” pro Legislature provide” shall as the tions 52, Id. 89 S.D. at 228 N.W.2d at concerning three areas. the involved vision referred passage to in reads: Worzella essentially leave а reading would Such Under SDC 15.0714 the of Re- Appellees Board any recourse. grievant without gents “may delegate provisionally to the Re support in v. Board see Worzella president, dean, 447, principal, faculty or Education, 77 S.D. 93 gents of control, school under its much so (1958). find that reliance 411 We N.W.2d authority by conferred as section totally misplaced. judgment in proper..This its seems clearly distinguishable is from Worzella power. empower is a limited It does not That case involved the the issue before us. delegate away the Board to all of its capacity regents delegate to of the board powers duty or its constitutional of con- constitutional control to an institution of its provisions may trol. Under its the Board higher learning. It did not concern the only delegate authority the limited con- power legislature of the to restrict activi- by ferred on it the same section. Actually, when ties of board. Worzella, 451, 77 S.D. at 93 N.W.2d at 413. legislature yet had not was decidеd Clearly language, in that Worzella we did enacted either SDCL ch. 3-18 or the restric- the authority not discuss of the legislation at issue in tive Meister. regents to restrict board of control. Rath- regents that the To hold board permissible scope it er concerns of the constitutionally ordained with abso authority regents delegate powers to con- legislative right lute of control free from by ferred a statute. require ignore us to restraint would Hudson, In v. 277 N.W.2d Carlson “under such rules and restrictions as the (S.D.1979), 717 without reference to Car- Legislature provide” part of Section shall ter, we likewise stated that the control provision, 3. A like a stat constitutional regents by vested the constitution ute, full effect all giving must read be “unequivocally includes the unfettered parts. its Auto. Inc. Club right employ employ- its (S.D.1981); Volk, v. 305 N.W.2d 693 Car ees.” That conclusion was based on our ter, 621; Kneip v. ‍​‌‌​‌‌​‌​‌​‌​​​‌​​​​​‌​‌‌​‌​​‌‌​‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‍S.D. reading language: of this Worzella (1974); Herseth, 642, 214 N.W.2d 93 87 S.D. statutory provisions merely The above Jorgenson, ex rel. 81 S.D. State Oster clarify confirm and gents’ power constitutional officers, instructors, po and dismiss all Appellees seek to buttress employees that at all language sition from institutions under its Carter ability unilaterally provisions These part set control. become a salaries, every discharge employees, employment or establish contract of entered employment qualifications left intact. into the Board. is Gillan v. Board of concluded, now, Schools, we do that Normal 88 Wis. Carter as we 1042, right the Board’s basic control is left 58 N.W. L.R.A. 336. It cannot surrendered, delegated We conclude that SDCL 3-18 does not restricted, or be prescribes erase board of control and is there- away. constitution Our colleges “shall university and pursuant fore a valid restriction to Section state our the control” under 3 of constitution. our employ, right to Without quashed. prohibition The writ of employ- its discharge, power constitutional loses its ees JJ., MORGAN, concur. DUNN and right of control. JJ., HENDERSON, dis- WOLLMAN 450-451, N.W.2d at Wоrzella, 77 S.D. at sent. the factual con- likewise 413. Viewed simply Worzella, passage

text of WOLLMAN, (dissenting). Justice regents was without the board means helpful it is sometimes Inasmuch as restrict, delegate its surrender power to gauging scope appellate opinion’s the of an to the constitu- not relate It did control. rulings questions on of law to have legislature to restrict the capacity of tional underlying the understanding of some of not confirm that board doWe that control. controversy rise to the be- gave facts that power to regents of court, complaints I summarize the fore the As we said unfettered.” “unequivocally case. parties the real in interest this of 64, Jones, 52 S.D. 216 N.W. v. in Johnson by statutory (1927), fettered it can be 584 of Metzger Loretta is a former member the recognize We nevertheless provisions. College in Mad- faculty at Dakota State result in Hudson. We of the correctness Op- February In of President ison. could not legislature that there held recommended that gaard of Dakota State system for statutorily establish a tenure (Board) Regents terminate regents. Any the board of employees of mis- Metzger’s employment because of her effectively would have other conclusion Agreeing with this recommenda- conduct. regents over that control of the nullified all tion, subsequently terminated the Board noted, legislative re- activity. As area of employment, whereupon she Metzger’s erasing regent stop of must short strictions pursuant proce- grievance filed a control. in the contract between dures established interpretation of Article recent Our most appellant of the Board and Council Dakota Board 3 was South Section (COHE). considering the After Education Meister, N.W.2d Regents of Board made settlement grievance, the Meister, on (S.D.1981). In we refocused 20, May In view Metzger on 1982. offer to clause. We and restrictions” the “rules respond to this of- Metzger’s failure to constitution- legislature could held that fer, withdrew it on June personnel policy board ally permit the to assume service commission the career 21, 1982, On October nonprofes- grievances of Board (department) informed the Labor insti- employees of board prac- unfair Metzger had filed an labor that to several sections pursuant tutions appeal chal- complaint tice 3-6A-12, 3- Act. SDCL Services Career employment. of her lenging the termination 6A-37, Whether the 3-6A-38. complaint that she Metzger alleged this employees similar could and asked wrongfully terminated had been not at issue. grievance review was to her department reinstate her that nonpro- only concerned statutes considered facul- position on the Dakota State former in Meister fessionals. We said ty- here is Our decision distinction is critical. Zeman is a member Appellant Although of Meister. a natural extension ap- faculty. He College Northern State professionаls the distinction between chairman of position of plied for the significant, the nonprofessionals is not here Literature and Language, Department of rationale stands. Meister upon the pose restrictions rejected, and was application His Speech. long as restrictions do not so ap- subsequently was Kline Dr. Richard Regent control. all erase president position to this pointed State, filed an whereupon Zeman does not erase all Board 3-18 Northern SDCL alleging complaint practice control. Regent labor unfair rejected be- application had been his is not unconstitutional as ch. 3-18 Ze- membership in COHE. his cause of to the applied asks claim for relief complaint and man’s overruling v. Car In named that he be department to order (1975), ter, 89 S.D. Lan- Department of chairperson of the as as focuses what construes majority Speech at Northern guage, Literature misreading court’s of Worzellа the Carter an addi- College, that he be offered State Education, 77 S.D. v. Board the first summer half contract for tional it is true N.W.2d 411 Now regis- with work freshman session based, was that the decision Worzella session, summer during the second tration incorrectly, delegation probably entire compensated for the he be and that (For analysis premise. an incisive powers had been year though as he school 1981-82 decision, “Academic see department. chairman Supported Tеnure at Dakota’s State 1980, Melinda Sanderson June University,” 5 S.D.L.Rev. 31 Colleges and audiolo- position of clinical appointed to (1960)). court misread Whether Carter the for the Dakota School gist at South irrelevant, The however. Car is Worzella teacher, does and she is not a Deaf. She limits recognized that there are decision ter filed an May COHE not teach. right impose rules upon legislature’s the complaint alleging practice labor unfair upon Although the Board. and restrictions violated appointment that Ms. Sanderson’s opinion purports to reaf today’s majority and COHE between the Board the contract Carter, quite clearly overrules the firm it salary ap- being paid a she was because based. It upon which was premise Carter salary $5,000 greater than the proximately moreover, so, indicating what without does the teach- under would have received she legislature’s respect with to the limits exist in the con- forth salary sсhedule set ers’ unless, XIV, Art. Section powers under depart- the complaint asks tract. COHE’s holding course, the the reaffirmation of salary to a Ms. adjust ment to Sanderson’s Hudson, 277 N.W.2d 715 in v. Carlson salary sched- with the level commensurate (S.D.1979), legislature may not agreement between in the ule set forth system for statutorily establish a tenure the Board. COHE employees an indication of is the Board’s upon remains only restriction that it, opinion holds majority As I read power legislature. department has that the in- complaints, which would foregoing by hold- majority opinion concludes The re- authority the relief clude not ch. 3-18 does ing that because SDCL complaint. 3-18- in each quested not in- it does erase the Board’s control Dist. Wessington v. School 15.2. Fries authority fringe upon constitutional Cf (S.D.1981). 2-4, 307 N.W.2d 875 XIV, No. Section by Art. granted to the Board Pickwic- the most Only by indulging in authority grant of this broad In view of an can such “control” kian definition of credulity one’s department, it strains to the assertion be made. pronounce- majority opinion’s to read the right my of con- the Board’s basic dis- ment “that set forth I adhere the views untouched_” Reduced to trol is left Dakota South sents Carter reasoning opinion’s Meister, syllogism, majority v. Regents (all resisting a appears (S.D.1981) to be as follows: the while indulge in temptation overpowering Constitution, nigh Art. Dakota juris- appellate I-told-you-so im- school permits Section through years gone. is authority granted to Under SDCL prudence). 3-18-15.2, decision, per today’s oрinion trenches this by department Regents right by can of the Board’s be ordered labor tribu- the essence opinion in plurality professional nal to increase or decrease sal- basic control was) aries, edict, (or it careful to hire thought professionals by and fire Carter in the remains and correct What control that constitutional board akin protect. today’s opinion parent will remain to a disciplining after a child. It all bodes learning ill for our higher seеn. institutions of South Dakota. HENDERSON, ‍​‌‌​‌‌​‌​‌​‌​​​‌​​​​​‌​‌‌​‌​​‌‌​‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‍(dissenting). Justice Appellants argue that the Board of Re- Department of Labor The South acquiesced gents in a con- diminution of its hearings and issue attempting to conduct by entering collectively bargained trol into removing from the orders agreements Higher with the Council of Ed- qual- authority to determine the final gents this, ignore ucation. To is to assert ifications, discharge, and sala- grounds language agreements. those Each Under the employees. ries for agreement with the Council of Edu- practice griev- or unfair labor guise of an authority cation leaves final with the Board Department of Labor appeal, ance in matters the em- (reduce salary Heegel’s would determine profes- ployment, discharge, and salaries of $5,000), employment qualifica- Zeman’s by employees. The Board (interfere Regent’s discretion with the tions delegate type authority ei- cannot De- heading up the whom should be as to еxpressly impliedly agree- or ther Literature, and Language, partment of Depart- ment with labor council to the College), and the Speech at Northern State Hudson, 277 ment of Labor. Carlson (Re- termination Metzger’s propriety (S.D.1979); v. Board N.W.2d 715 having her for miscon- terminated Regents, S.D. duct). the final ad- The contracts reserve im- in matters of this grab of ministrative decision governmental colossal Under a Regents. Apparently port to the Board of of Labor seeks power, Dеpartment the past understanding appreciating and the statutory au- constitutional and engulf the Court, the Board of Re- decisions of this of of this thority of the Board Court, wisely, as a matter of constitu- it is and By of this the decision state. necessity, made this reservation. in tional Professionals educa- accompli. fait now believe would have this Court Appellants dealt They will be are now laborers. tion that, ap- in this they are not successful regards the if As by a labor board. with not remеdy. That is peal, they have no people, the ma- professional of supervision grievance procedure a They true. do have destroys and the opinion emasculates jority Regents. This is By Board of before the of the Board of effectiveness “Faculty Proce- decision, as the Grievance under SDCL known this virtue of Re- in the Board of may dure” and is found 3-18-15.2, of Labor Department the Metzger, as an ex- Policy Manual. hearing gents’ investigation an “conduct now oрportunity ample, was afforded an covering points an order and shall issue cause. It is total- grieve her the em- raised, binding is which order appellants to advocate ly fallacious for agency.” governmental ployees and the Higher Regents-Council Regents— the Board of jurisdiction The precludes professional contract Education overlay in that Board—such academic Appellants would filing grievance.1 state down from have this as we known tion, through mаy processed the Board 6.30(1) Regents-Council be 1. Article 5.4_” precludes Regents Policy, Section 5.4 "Any provides: contract Education nonrenewal, salary, law, complaints for by substantive grievances and which authorized other tenure. Com- promotion, or denial of this defini- denial under not constitute a do they thority Regents’ to limit if control mat- Court believe further have this ters professional employees. converting Court- are not successful rationale was based Meister’s a con- they can i.e., unless advocacy, to their plus stitutional amendment Executive Depart- before carry grievances their organization providing the Career Service remedy what- Labor, they no have ment jurisdiction with in matters Commission aIf false. soever. This is pertaining nonprofessionals. Executive complaint, of a written grieves by virtue expressed specifically with- Order No. 73-1 same, denies if an for that transfer. the order intent exhausting their ad- after grievants, (1973 Section 28 of Order S.D.Sess.L. remedies, may appeal to the ministrative § 28) provides: “day Their in court” will not circuit court. system person- of career service This however, Appellants, them. taken from apply management may nel to all “day in court” desire abandon ployees of executive branch of state proceed from one con- circuit court and (f) Presidents, government except: ... agen- to an stitutional board administrative deans, making policy administrаtive and cy- officers, physi- health student service The of Labor does not have teaching profes- cians and certified Regents’ pro- jurisdiction over colleges at personnel research by employees virtue of Executive fessional and universities under § IV, Reorganization via Article di- the state board of and other Dakota Constitution. South making policy or administrative rectors deter- officers of such institutions as Reorganization The Order of Executive pеrsonnel policy mined board .... § IV, pursuant to Article 1973was issued 73-1, in Section 28 of Executive Order No. Dakota An or- South Constitution. § IV, conjunction with Article 8 of the provided for the transfer of der thereunder Constitution, effectively duties, power, of various functions § implied amended Article 3. The agencies. Significantly, the order state amendment, by in specifically expressed provided: “It is the intent of this executive 73-1, tent within Executive Order No. increase, change order not to decreаse the final administrative author transferred functions, statutory powers and duties ity nonprofessional personnel matters existing agency before effective to the Career Service Commission. Meis such is date this order unless intent ter, N.W.2d at 123. specifically expressed this executive within opinion, majority with unfounded order.” 1973 S.D.Sess.L. ch. leap logic, majority deci- relates that recognized This a constitutional Court I sion “a natural extension Meister.” authority transfer from whole-heаrtedly with ration- disagree to Career Service Commission. ale. Whereas Service Commis- Career South Dakota Board v. Meis sion a authori- was bestowed with ter, (S.D.1981). We held employees, De- ty nonprofessional over 73-1 transferred Executive Order No. partment of Labor has not been blessed final administrative over authority over the Board's with increased Regents’ nonprofessional employ provisions professional employees. ees to the Career Sеrvice Commission. The specifically 73-1 Order No. Executive nonprofessional distinction between em Regents’ nonprofes- named ployees professionals was deemed to jurisdic- employees and transferred Although recog be “critical.” this Court tion them unto Career Service over § Regents’ nized a limitation of control over ch. 28. Commission. S.D.Sess.L. contrast, nonprofessional employees, explicitly By Order 73-1 ex Executive No. express Legislature’s juris- does not an intent to transfer cluded from the au- increased Policy Appellants plaints illegal Regents’ Manual. do not wish discrimination are brought under Section abide contract! 7.1.9 em- professional Regents’ diction If Labor. Department of to the

ployees SUTERA, Daniel L. Plaintiff of Executive Or- the sections one examines Appellee, Reor- pertinent to Executive 73-1 der No. Labor, Department of ganization BUTTES BOARD to SULLY OF no reference EDUCA research will disclose such TION, Sully Buttes impоrtantly, School Regents. Most District No. 58-2, Meyer, Todd, expressed Tony specifically Brian in the absence Cliff De 73-1, Sautell, Dampbell, No. Cathy Davis, Executive Order intent within Lillian pow- change in the Wright, no increase or Burgeson, there is and Don Leonda De functions, the De- ers, responsibilities of Appellants. fendants of Re- of Labor or the Board partment 14423. No. §2, 3. 1973 S.D.Sess.L. gents. See the Career Service ch. 3-6A confirms SDCL of South Dakota. Supreme Court authority as constitutional Commission’s May оn Briefs 1984. Considered in Execu- by specific reference established Reorgani- No. 73-1. Executive tive Order July Decided amend- no constitutional provided zation the enactment of ment which authorized grievance appeal practice and

unfair labor applicable professional

procedures simply no constitu- exists

ployees. There 3-18-3.1,

tional amendment SDCL 3-18-3.3, 3-18-15.2. and SDCL

Therefore, correctly court below the trial Reorganization did not Executive

held that the South

authorize practice and apply unfair labor

Labor to respect appeal procedures with employees under the au- Properly

thority of the Board of of Prohibi-

did the trial court issue Writ ‍​‌‌​‌‌​‌​‌​‌​​​‌​​​​​‌​‌‌​‌​​‌‌​‌‌‌‌‌​​‌‌‌‌‌​‌‌‌‍Departmеnt of Labor prevent

tion to Therefore, exceeding jurisdiction. from its simply This state respectfully

I dissent. hounding and need a labor board

does not of a constitu-

second-guessing the decisions constitutionally em- which is

tional board state institutions and

powered to run our granted right

statutorily 13-49- employees under SDCL

dismiss its

14.2 employment, manner and rate and provides: of their 2. SDCL 13-49-14 compensation, provide a sabbatical their regents is authorized to The board of a retirement part pay, provide for leave officers, instructors, and em- and dismiss all provided, person shall be program; that no institutions, necessary ployees of such sectarian ployed reason thereof, or dismissed management proper to determine opinions duties, political number, held. qualifications, and fix the term

Case Details

Case Name: South Dakota Board of Regents v. Meierhenry

Court Name: South Dakota Supreme Court

Date Published: Jul 3, 1984

Citation: 351 N.W.2d 450

Docket Number: 14309, 14353

Court Abbreviation: S.D.