*1
hearing
§
of a
required.
Notice
is
11-94.
without risk to the citizens Sioux Falls Neitge serving years five peni-
tentiary. Thus, only board
building jurisdiction has services to revoke
a contractor’s license. The circuit authority
this case had no to revoke
Neitge’s contractor license as of his for grand
sentence theft. It is fundamen
tal “[a] rendered a court jurisdiction
without to pronounce it
wholly void and without force or effect Haase, (cit
whatever.” 446 N.W.2d Mee,
ing State v.
67 S.D.
(1941)); Nolan, Nolan v. 490 N.W.2d (S.D.1992). Accordingly, portion
of the circuit court’s sentence revoking
Neitge’s contractor license is reversed. entry
[¶ 14.] Reversed remanded for
of an amended sentence consistent with opinion. MILLER, Justice, Chief
SABERS, AMUNDSON and
KONENKAMP, Justices, concur. *3 Steffen,
Sandy J. Gregory County Burke, Dakota, Attorney, State’s South At- torney plaintiff appellant. L. Richard A. Travis David Pfeifle Johnson, Becker, May, P.C., Doyle and Falls, Dakota, Sioux Attorneys South defendant and appellee.
MILLER, Chief Justice
County1 appeals
from the circuit
holding
register
court’s
that its
of deeds
titled,
1. We note this case is
"State ex rel.
been
as a
named
rather than Steffen.
Steffen v.
Gregory County
titling
Peterson.” The
Steffen indicated the
of the case was
Steffen,
Attorney, Sandy
brings
patterned
State's
previous
proceed-
after a
Tarr,
suit
Gregory County
ing,
behalf
Board of
ex
Hooper
State
rel.
62 S.D.
Commissioners,
(S.D.1934).
so the Board
should
failed to
and remit fees
12.229
con-
authorizing
struction of laws
removal
According
County,
SDCL 7-9-17.6
is the
rule.”).
remedy
The
provided by removal
act,
an
such failure constitutes
unlawful
statutes is
relatively
heroic
nature and
theft,
7-9-18.7
under SDCL
drastic where the usual method of remov-
Tarr,
this Court had the
officeholders is
resort to the ballot.
to consider the
pro-
other occasion
removal
Bartz,
(Iowa
632,
v.
State
224 N.W.2d
638
However,
vision of
3-17-6.
SDCL
1974) (citation omitted). Evidence in a
merits of the case were not reached be-
“clear,
removal action
satisfactory
must be
appeal
cause the
was dismissed on other
also,
convincing.”
Id. See
Kemp, 275
Tarr,
310,
grounds.8
271
$25,677.12 to
The
they
amount of
Peterson.
Peterson if
voters could unseat
the
“favor-
agree.
We
issue is whether
outcome was
fit.
saw
Peterson, thereby
him to
entitling
able” to
of
Our treatment
extra
County
deci-
argues
disbursements.
incorporated
material
into
neous
not
favorable,
Peterson
sion
not
because
fact and conclu
findings
court’s
of
likely
not have been
to retain
would
able
of law is well settled:
sions
$2,700
repaid
had he not
over
position
opinion
by
or views
“Any expression of
asserts,
from his
funds.
personal
judge
to his decision
the trial
extraneous
however,
outcome
be-
was favorable
contemplated by
manner
in the
and form
position.
cause
to retain his
he was able
no
force or
as a
binding
law is of
effect
upon
judge
law
the trial
matter of
either
“A
party filing
30.]
motion
[¶
v.
Agard
himself or
one else. Cf.
attorney’s
for an
award of
fees bears
262,
379;
244
Menagh, 60 S.D.
N.W.
by a
of
proving
preponderance
burden of
248, 244
Hemenway,
v.
60 S.D.
Klundt
evidence its entitlement
such an award.”
by
Such
the trial
expressions
N.W. 377.
Wood,
854,
Hartman v.
436 N.W.2d
857
are,
judge
helpful
of course
indeed
(S.D.1989) (citing Bd. County Comm’rs
of
almost necessary
advising
counsel as
Auslaender,
v.
745
of
of Jefferson
to the views of the court
for the
(Colo.1987)).
999,
Attorney
P.2d
1001
fees
information
in drafting
of counsel
find
are not
unless
recoverable
either
presentation
and conclusions for
ings
specifically
such action is
authorized
expression
opin
court. But
of
such
¶
Michlitsch,
69, 17,
1999
594
statute.
SD
proper
ion constitutes no
of
Hartman,
734;
N.W.2d at
436 N.W.2d
appeal,
announced in
record
whether
Further, where an
of
open
expenditure
form of an
statement
oral
involved,
reporter
or in
public
court transcribed
statute authoriz
funds is
of a
or letter
the form
memorandum
strictly con
expenditure
such
will be
counsel,
[cites omitted].”
addressed
Sisters,
Appeal
strued.
Presentation
Inc.,
169,
(S.D.1991);
471
174
N.W.2d
Mellema,
827,
v.
407 N.W.2d
829
Mellema
Valley Hosp.
Sioux
Ass’n v. Davison
(S.D.1987)
Bldg.
v.
(quoting Western
Co.
(S.D.1980) (statute
Co.,
County,
[¶ 29.] The examiners). torney fees and disbursements in the two such *10 272 statutory removal, Specific magistrate’s] authorization the conclusion una- can be attorney
for an award of
found voidably follows that he is the ‘successful
3-17-10,
provides:
which
SDCL
party’ and is entitled to recover his ex-
”
penses ....
Id.
pro-
If the final determination of such
favorable to such accused
ceeding be
Aiken,
In
[¶ 34.] Heath v.
302
officer, he shall be allowed the reason-
178,
(S.C.1990),
S.C.
273 its discretion in the trial court abused Here, was able although Peterson [¶ disburse- complete- full reimbursement of awarding he was not position, his to retain wrongdoing, all The case is remanded of ments to Peterson. ly exonerated County proceeding, the removal with directions that through to the trial court restitu- bringing in about modify was successful its order to award Peterson 50% Peter- in his behavior. change and a tion disbursements. his timely failure to remit his son admitted treasurer, im- as well as
funds to the The trial did not err in [¶ 40.] payments. the CBC accounting of proper denying additional disbursements timely on a basis to remit fees agreed He attorney expenses. for fees future, agreed properly and he in the denied Pe The trial court Further, payments. CBC account for the attorney request for additional terson’s repay over was ordered Peterson regard writing, and expenses, “[w]ith fees $1,500 per- $1,200,12in to the addition fees, attorney request for additional already repaid. funds he had sonal obtaining attorney I not award fees for will are actions 38.] Peterson’s [¶ review, attorney By notice of Pe fees.” 3-17-10 type of conduct SDCL not the that 3-17-10 man argues terson SDCL Rather, intended the statute is rewards. attorney fees and payment dates who are inno to reimburse officials attorney fees expenses, and the additional in think the office. We wrongdoing cent of incurred because must in SDCL 3-17-10 term “favorable” such di acknowledge refused to “exculpation to mean strictly construed he is enti Therefore he asserts rective. degree of success.” and not some lesser expenses. to reimbursement for these tled Trenton, N.J.Super. 184 Kerwick v. contrast, County simply asserts SDCL (Law Div.1982). A.2d the award of attor 3-17-10 does allow Winbush, An Kimberly J. generally, See pursuing attorney an award of ney fees notation, Payment Attorneys’ Services agree. fees. We Brought Against Action Defending in Of Poioer or Individually as Within attorney fees incurred Actions ficials Body, 47 A.L.R.5th Obligationof Public underly- obtaining attorney fees for (1997). action, litiga- so-called “fees-for-fees” tion, two lines. along decided have been determination this case 39.] The reasoning holds fees-for-fees One line of the sense that was favorable Peterson underlying sub- part as litigation How- managed position. he to retain his being litigated. that is Un- stantivé issue ever, unfavorable to him because he it was rationale, statutes such SDCL der this $2,700 required repay excess of vindicated to make a 3-17-10 were enacted county, and he personal funds to whole, all therefore related defendant aspects change certain was admonished underlying part of the are authorized as In view of the procedure. of his office Commissioner, See, INS v. e.g., claim. case, that an of this we hold circumstances Jean, 154, 110 496 U.S. S.Ct. Peterson’s ex- apportionment of equal (1990); Am. Fed’n Gov’t L.Ed.2d 134 since appropriate, penses is reasonable Local 3882 v. Fed. AFL-CIO Employees, favorable totally was not the determination Auth., F.2d 20 Thus, Labor Relations 3-17-10. party. to either SDCL however, example, Peterson was late with his noteworthy, For It $1060 for specifically payments Peterson to and he had to remit court did not order retaining money repay $198.60 as a condition of that he was short CBC fees and opinion position. It in its letter stated This is not an indication on his fees. awarding disbursements: would be obli- won. Peterson state gated pay whether these sums allegations points Steffen out that several or not. proven court ordered it pleadings were to be true. in the (D.C.Cir.1993); KONENKAMP, and Salmon Davis SABERS and 1996). (Utah Justices, Fol- concur in P.2d 890 concur County, 916 reasoning, part. line of result lowing this *12 fees-for-fees, because would be entitled KONENKAMP, Justice (concurring pursued part of the litigation was such part concurring in result in part). him to vindicate and make larger effort him whole. majority opinion I concur in the [¶ 48.] reasoning join The other line of fol on Issues 1 and I and on Issue lows the traditional American rule that points with Justice Sabers on attorney by fees cannot be recovered special writing. express statutory absent
prevailing
authorization. This ratio
or contractual
SABERS,
(concurring
Justice
in litigation
nale characterizes fees-for-fees
concurring
part).
in result in
separate and distinct from
as an issue
respects
I concur in all
except
[¶ 49.]
underlying action. Because such fees
that I
concur
result on Issue 3 for four
litigant
the individual
would
benefit
reasons:
sought
not
in furtherance of
and are
underlying claim or for the benefit of the
First,
1.
since we
affirming
are
the tri-
general,
they
would be barred
al court
in denying additional disburse-
3-17-10,
under statutes such as SDCL
(for attorney
ments
fees and expenses), it
only provide
which
for expenses incurred
necessary
is not
to decide at this time
See,
of the
defense
substantive issue.
they
whether or not
permitted
are
under
Comm’n,
v.
e.g., Barker
Utah Pub. Serv.
the statute.
(Utah
Salmon,
1998),
970 P.2d
(Russon, J.,
P.2d at 899-900
dissenting);
Second,
2.
deny
since we decide to
ad-
Beach,
City
Thornber
Fort Walton
ditional disbursements because the result
570 (Fla.Dist.Ct.App.1993);
So.2d
Peterson,
entirely
was not
favorable to
Trenton,
Van Horn v.
80 N. J.
(SDCL
interpretation of the statute
3-17-
(N.J.1979).
themselves.