Plaintiff, 
CIV. 07-286 

 

BRIEF IN SUPPORT OF 

MOTION TO DISMISS 


Defendant. 
 

*********************************************************** 

COMES NOW the Respondent, by and through its attorney of record R. Shawn Tornow, and submits this Brief in Support of its Motion to Dismiss this appeal based on the Court's lack of subject matter jurisdiction to hear or review the proposed appeal. Appellant attempts to propose an appeal from the Decision entered by Sara L.Burnette, Independent Hearing Examiner, on January 8,2007, following an administrative appeal hearing held pursuant to §§ 2-60 to 2-66, inclusive, of the Revised Ordinances of the City of Sioux Falls. In sum, Hearing Examiner Burnette's Decision had upheld the issuance by a City of Sioux Falls Code Enforcement Officer of a citation to Appellant for maintaining a public nuisance.

The City of Sioux Falls, hereinafter City or Respondent, has adopted ordinances regulating appeals from the decisions of its agencies or major organizational units. Revised Ordinances of Sioux Falls §§ 2-60 through 2-64 provide for an internal appeal process before either a board of city directors or an independent hearing examiner. While § 2-66 generally sets out that there may be an ability to "appeal" the decision of the board or hearing examiner to circuit court -no appeal process is specified.

SDCL §16-6-10, however, defines the limited appellate jurisdiction of the circuit court as follows:

"The circuit court has jurisdiction of appeals from all final judgments, decrees or orders of all courts of limited jurisdiction, inferior officers or tribunals, in the cases prescribed by statute."

In the instant case, Appellant seeks to advance an appeal but fails to set forth under what authority his appeal to circuit court is based. If Appellant is relying on the Administrative Procedures Act (hereinafter referred to as the "APA") found at SDCL Chapter 1-26, Respondent submits that, by statutory definition, the APA does not provide the authority for Appellant to appeal to circuit court. SDCL §1-26-30.2 provides that, "[a]n appeal shall be allowed in the circuit court to any party in a contested case from a final decision, ruling or action of an agency." However, the definition of agency found within the APA at SDCL § 1-26-1(1), specifically excludes any unit of local government, "unless the department, unit or agency is specifically made subject to this chapter by statute." Because SDCL § 1-26-1(1) specifically excludes local government, an attempted appeal under this Chapter is not available. Respondent further argues that, even if the APA was the appropriate vehicle to advance this appeal, Appellant hasn't even come close to complying with the requirements set forth in the Act. Furthermore, are view of South Dakota statutes with respect to decisions by municipalities reveals no other statute that would allow cities or those appearing before city boards and/or agencies a right to appeal the decisions made therein to the circuit court.

With the foregoing in mind, it is important to note that South Dakota law does provide that where there is no appeal provided, nor any other plain, speedy, and adequate remedy in the law, the legislature has given the courts of this state the power to review actions of inferior courts, officers, boards, or tribunals through a writ of certiorari, pursuant to SDCL § 21-31-1. As a result, Respondent asserts that application for a writ of certiorari

pursuant to SDCL Chapter 21-31 is the only legally accepted method to seek judicial review of the underlying City decision -as outlined under city ordinance and/or under applicable portions of the South Dakota Constitution.

In support of this argument, Respondent also attaches as Exhibit #1, a detailed letter opinion of Second Judicial Circuit Court Judge Joseph Neiles dated March 3, 2005, wherein the Court, on its own motion, addressed a similar jurisdictional question in a City administrative appeal case entitled, Hong Kien v. City of Sioux Falls, Civ. 04-2771. The City asserts that Judge Neiles appropriately addressed the jurisdictional issue(s) at hand and properly dismissed that similarly situated administrative appeal action in the same manner as to what should happen in the present case.

R. Shawn Tornow  
Sioux Falls City Attorney's Office  
224 West Ninth Street
Sioux Falls, SD 57104-6407
Telephone: (605) 367-8880

This case is styled as an appeal from an administrative license revocation by the City of Sioux Falls (City). Appellant Hong Kien (appellant), according to the Notice of Appeal, had a massage therapist license revoked (with Findings of Fact and Conclusions of Law served on November 15, 2004) and filed a Notice of Appeal with the Clerk of Courts for Minnehaha County on December 15,2004.

The court, on its own motion, has raised the issue of subject matter jurisdiction with the parties. r sent a letter to both counsel on January 14, 2005 directing counsel to submit arguments regarding the authority and jurisdiction of this Court to hear this appeal. Ms. Carper has responded with a letter brief, and Mr. Tornow called to indicate that he had not had time to prepare any written argument, but would join Ms. Carper's written submission and support her position that the court does have jurisdiction.

The facts in this instance are not known, as only the notice of appeal has been filed with the court, and no transcripts or stipulated facts are before the court. Likewise, Ms. Carper's letter brief does not contain any of the underlying facts. However,
F.XHTRFP ~1
knowledge of the facts, beyond the apparent fact that appellant had a massage license which has been revoked, are probably not relevant at this point.

Appellant's argument can be boiled down to the following: (1) the City, through the express terms of their ordinance, grants to the appellant the right to appeal any decision to circuit court; and (2) case law of the South Dakota Supreme Court suggests that an appeal to the circuit court in such a case is proper.

First, I would note that it is entirely proper and fitting for this court to raise the issue of jurisdiction, sua sponte. "It is the rule in this state that jurisdiction must affirmatively appear from the record and this court is required, sua sponte to take note of jurisdictional deficiencies, whether presented by the parties or not... The test for determining jurisdiction is ordinarily the nature of the case, as made by the complaint, and the relief sought." State v. Phipps 406 N.W.2d 146, 148 (SD 1987) (citations omitted). The question of jurisdiction can be raised at anytime and by this Court upon its own motion. Deno v. Oveson, 307 N.W.2d 862, 863 (SD 1981). See also, Decker v. Tschetter Hutterian Bretheren, Inc., 1999 SD 62,594 N.W.2d 357.

As noted above, this case appears to involve an appeal to circuit court for an administrative revocation of a massage therapist license by the City. The City purports to address the regulation of massage establishments and massage therapists by city ordinance, and the revocation of any license granted there under. I Separate from the ordinances regulating massage therapists, the City has also adopted ordinances regulating appeals from the decisions of agencies. SFRO § 2-602 establishes an internal appeal process, wherein the mayor either assigns three directors to sit as an appeal board, or hires

I SiouxFallsRevisedOrdinance(SFRO)§23.5-20(b)provides:"Suspension or revocation.  Any massage establishment or massage therapist license shall be subject to suspension or revocation by the city clerk for violation of any provision of this article, or applicable provision of this Code, city ordinance, rule or regulation or state law, or for grounds that would warrant the denial of the issuance of such license in the first instance, or for the violation of any law relating to or regulating massage establishments or massage therapists. The suspension or revocation of a license shall be accomplished pursuant to a hearing held before the city clerk at which time evidence shall be received for the purpose of determining whether or not such license shall be suspended or revoked or retained. Following a hearing, if the license is suspended or revoked, the notification of and reasons for such decision shall be set forth in writing and sent to the licensee by means of certified mail or hand delivery. Notice of such hearing shall be in writing, directed to and delivered to applicant by means of certified mail or hand delivery at least ten days before such hearing."  2"Any party who is harmed by any action or decision of any agency or major organizational unit of the city concerning an administrative decision of a city official or officials trom which an appeal is not otherwise provided, may appeal the decision. The mayor shall use his discretion and shall either assign three directors to sit as a board or hire an independent hearing examiner to hear the appeal. Appeals shall be commenced by filing a written appeal with the agency or major organizational unit within ten days of the decision. The appeal shall include a statement of the action complained of, why the same should be modified or rescinded, whether the appellant desires appointment of a board or hearing officer or an open or closed hearing and an address where the appellant can be mailed notice of hearings. The director of the agency or major organizational unit shall immediately deliver a copy of the appeal to the city attorney who will act as legal
{'nlln",..I" an independent hearing examiner for that purpose. SFRO § 2-61 proscribes the time of hearing and the required notice. The hearing procedures are outlined in SFRO § 2-62.SFRO § 2-64 requires the review board or hearing examiner to generate written findings of fact and to either sustain, remand for further hearing or action, or rescind the complained about decision or action. Then, in SFRO § 2-66, the City purports to establish a right to appeal this decision to circuit court:

"The decision of the board or the hearing examiner may be appealed to the circuit court as provided by law." The "circuit court" mentioned in this ordinance must refer to the circuit courts established under the Unified Judicial System of the State of South Dakota. Article V, Section 5 of the South Dakota Constitution establishes the jurisdiction of the different courts, and in part, provides: 'The circuit courts have original jurisdiction in all cases except as to any bmited original jurisdiction granted to other courts by the Legislature. The circuit courts and judges thereof have the power to issue, hear and determine all original and remedial writs. The circuit courts have such appellate jurisdiction as may be provided by law." (emphasis added)

The South Dakota Legislature, then, was vested by this constitutional provision with the duty to decide, in their wisdom, what cases could be appealed to circuit courts. The legislature has responded to this delegation of duty by adopting SDCL § 16-6-10:

"The circuit court has jurisdiction of appeals from all final judgments, decrees, or orders of all courts of limited jurisdiction, inferior officers, or tribunals, in the cases prescribed by statute." Counsel points to the South Dakota Administrative Procedures Act (SDCL Chapter 1-26, and specifically SDCL §§ 1-26-30 and 1-26-30.2) as authority for the circuit court to hear this appeal. It is true that SDCL § 1-26-30 grants to a person who has exhausted all administrative remedies available within any agency or who is aggrieved by a final decision in a contested case judicial review under 1-26. And SDCL § 1-26-30.2 specifically provides that the appeal from a contested case from a final decision, ruling or action of an agency is to circuit court. However, it appears to this court that these statutes stand for exactly the opposite conclusion. SDCL § 1-26-1(l) defines an "agency" as "each association, authority, board, commission, committee, council, department, division, office, officer, task force or other agent of the state vested with the authority to exercise any portion of the state's sovereignty. The term does not include the Legislature, the unified judicial system, any unit of local government or any agency under the jurisdiction of such exempt departments and units unless the department, unit or agency is specifically made subject to this chapter by statute." (emphasis mine). Counsel does not point to any section of the South Dakota Code which provides for an appeal under the Administrative Procedures Act from an action by an board or officer of a municipality. Therefore, unless the legislature, by statute, makes the city and its agencies subject to the APA, it is specifically excluded by this statute.

In addition, counsel cites a decision by the South Dakota Supreme Court in Statev. Neitge, 2000 SD 37, 607 N.W.2d 258. There, a circuit judge ordered revocation of a city-issued contractor's license as a condition of a criminal sentence. The Supreme Court found the Circuit Court did not have authority to order revocation of that license, holding that power was with the City. However, the court went on to state: "Only after these administrative remedies are exhausted, may the board's decision be appealed to the circuit court", citing the Sioux Falls City Ordinance.

This court considers that statement by the Supreme Court to be dicta, to the extent that it purports to grant to the defendant the right to appeal a decision by the city to revoke his contractor's license. The city had not revoked his contractor's license, and so he had not appealed the revocation of that license by the city to circuit court, and so the legality of such an appeal was not before the Supreme Court. The issue before the Supreme Court was the power of the circuit court to revoke the license in the absence of action by the city.

Other decisions of the South Dakota Supreme Court have held that there is no right to appeal under the APA from decisions of local units of government. In Janssen v. Maxam, 289 N.W.2d 256 (SD 1980), the Court held that there was no right to appeal the rejection of respondent's application for an off-sale low-point beer license. Likewise, in Anderson v. City of Sioux Falls, 384 N.W.2d 666 (SD 1986), the circuit court had held that there was no right to appeal to circuit court from a decision of the city's Civil Service Board, and that ruling was not questioned by the Supreme Court.

On the other hand, where the legislature has acted to create by statute a right to appeal a decision by a local unit of government, that right to appeal is recognized. In Vitek v. Bon Homme County Board of Commissioners, 650 N.W.2d 513,2002 SD 100, a citizen sought judicial review of a county board of commissioners' decision to grant a variance for the construction of a hog confinement facility. The Court noted SDCL § 78- 27 allows an appeal to circuit court from the decisions of the county commissioners.

And in Dale v. Board of Education, Lemmon Independent School District 52-2 316 N.W.2d 108, the Court permitted an appeal by a teacher from a school board's decision not to renew his contract, under the authority of SDCL § 13-46-1. Examination of the South Dakota statutes with respect to municipalities, and specifically Title 9, reveal no statutes adopted by our legislature that give to either the cities or others appearing before the city boards and agencies any right to appeal the decisions made therein to the courts of this state. Since the legislature has not acted to give to such parties the right to appeal, none exists.

On the other hand, just because there is no right to appeal a decision of a city board or agency to circuit court does not mean that an aggrieved party is completely without legal remedy. For instance, in the Anderson case cited above, Anderson had sought an alternative writ of mandamus. In Conrad v. City of Rapid City, 391 N.W.2d682 (SD 1986), a landowner filed an action in circuit court to have a resolution of the city approving a plat of real property declared to be null and void and sought a permanent injunction against the recording of the plat. The Supreme Court specifically recognized that action as not an appeal, but rather an original proceeding in circuit court. Under certain facts a Writ of Prohibition under SDCL Chapter 21-30 might be appropriate. A declaratory judgment action might be appropriate in certain cases under SDCL Chapter 21-24. Finally, the legislature has granted to both the Supreme Court and the Circuit Courts of this state the power to review actions of inferior courts, officers, boards, or tribunals through a Writ of Certiorari, under the provisions of SDCL Chapter 21-31, where there is no appeal, nor any other plain, speedy, and adequate remedy in the law.

For the reasons stated above, the court concludes that this court is without jurisdiction to consider an appeal in this instance, and orders that this matter be dismissed.

I, ~.Sh~wn Tornow, on behalf of the City of Sioux Falls, do here~y certify. that on this ?3" --day of February, 2007, a true and correct copy of the City'S Motion to Dismiss, proposed Order as well as an accompanying Brief in Support of Motion to Dismiss were sent by first class United States Mail, postage prepaid, to the attention of the following named person at the address indicated:

Come back in a few days and we will have posted Harlan's response to this to the circuit court here.