Anderson v. City of Sioux Falls, Minnehaha County

• Decision Date: 26 March 1986
• Docket Number: No. 14928,14928
• Citation: 384 N.W.2d 666
• Parties: Kirk ANDERSON, Petitioner and Appellee, v. CITY OF SIOUX FALLS, MINNEHAHA COUNTY, South Dakota; Joe Cooper, Mayor of the City of Sioux Falls; and Manfred Szameit, City Finance Director of the City of Sioux Falls, Respondents and Appellants.
• Court: South Dakota Supreme Court

Page 666

384 N.W.2d 666

Kirk ANDERSON, Petitioner and Appellee, v. CITY OF SIOUX FALLS, MINNEHAHA COUNTY, South Dakota; Joe Cooper, Mayor of the City of Sioux Falls; and Manfred Szameit, City Finance Director of the City of Sioux Falls Respondents and Appellants.

No. 14928.

Supreme Court of South Dakota.

Argued Nov. 20, 1985.

Decided March 26, 1986.

John Zimmer, of Zimmer, Richter & Duncan, Parker, for petitioner and appellee.

Duane C. Anderson, of Christopherson, Bailin & Anderson, Sioux Falls, for respondents and appellants; Roger A. Schiager, of Schiager & Peters, Sioux Falls, on brief.

MORGAN, Justice.

City of Sioux Falls (City) appeals from a judgment on an alternative writ of mandamus ordering City, Joe Cooper its mayor (Mayor), and Manfred Szameit, its finance director (Szameit), to immediately reinstate petitioner Kirk Anderson (Anderson) to the rank of battalion chief of the Sioux Falls Fire Department. We reverse.

In August of 1984, Mayor appointed a new fire chief. Pursuant to City Ordinance 30-19, the deposed fire chief, Orlan Norgaard, was returned to the position he previously held within the civil service, which was battalion chief. According to City, the return of Norgaard to this position left City with six battalion chiefs, where the fire department's table of organization provided for five. In view of this, Mayor determined that Anderson, who had been the last appointed battalion chief, should be reduced to his previous position of captain. Anderson then filed an appeal with the Civil Service Board (Board) for City as provided in Ordinance 30-47. After a hearing, the Board determined that there was no just cause for the reduction of Anderson and entered an order directing that he should be returned to the rank of battalion chief with pay from date of reduction. City failed to reinstate Anderson as a battalion chief and Anderson filed a petition for an alternative writ of mandamus from which proceedings this appeal arises. The parties stipulated that the trial court would consider the case upon the record made before the Board and not hear the case de novo. The trial court found that there was substantial evidence in the record to support the decision of the Board and concluded that a judgment should be entered ordering immediate reinstatement of Anderson to the rank of battalion chief and pay as of the date of his reduction, which judgment was forthwith entered.

The issues as expressed in City's brief and as realigned in Anderson's brief are so inartfully set out that we will restate the issues that require disposition as we proceed.

We first examine a procedural question. By stipulation, the trial court rendered its determination on the records from the Civil Service Board with no de novo proceedings conducted by the trial court. Anderson argues that this constitutes an appeal by City where no right of appeal is provided by statute. See SDCL ch. 1-26. There is no provision in that chapter for appeal from a decision of the Civil Service Board. SDCL 1-26-1(1) specifically excludes from Chapter 1-26 "any unit of local government or any agency under the jurisdiction of such exempt ... units unless the ... unit or agency is specifically made subject to this chapter by statute." City cites only its own ordinance in support of a right to appeal and we find no statutory authorization. We therefore agree with the trial court when it concluded "[t]hat respondents (City) have no right of appeal on the merits from the November 8, 1984 decision and order of the Sioux Falls Civil Service Board." However, the only significance we attach to that conclusion is that it lays to rest any suggestions that City had failed to exhaust its administrative remedies.

In our opinion, the dispositive issue in this case is whether the Board acted in excess of its jurisdiction so that a writ of mandamus will not properly issue to enforce its decision. Mandamus is an extraordinary writ. By statute, its purpose is "to compel the performance of an act which the law specially enjoins as a duty resulting from an office ... or to compel the admission of a party to the use and enjoyment of a right ... to which he is entitled, and from which he is unlawfully precluded[.]" SDCL 21-29-1.

The granting of a writ of mandamus is not a matter of absolute right, but is vested in the sound discretion of the court; and, where there is reason to doubt the necessity or propriety of issuing it, it should be refused. Halverson v. Williams, 38 S.D. 176, 160 N.W. 730 (1916). City, by its answer to the order to show cause raised the issue of the propriety of the Board order which Anderson sought to enforce. We think that the trial court very properly had cause to review the Board proceedings through mandamus.

Furthermore, it appears from the record that the propriety of the Board's determination was tried by consent inasmuch as it was argued by both sides before the trial court. As a result, the trial court concluded, in pertinent part:

That no plain, speedy and adequate remedy at law, or in the ordinary course of the law, exists for the Petitioner (Anderson) to compel the performance of the acts required by law and requested of the Respondents (City) which they have a clear and legal obligation to perform.

That reinstatement and reimbursement by Respondents as ordered by the Civil Service Board is a ministerial action properly subject to Writ of Mandamus and within the jurisdiction of this Court.

That Respondents have no discretion but are required by law to comply with the decision of the Sioux Falls Civil Service Board dated November 8, 1984 and reinstate Petitioner to Battalion Chief and pay as of August 20, 1984.

....

That the November 8, 1984 written decision of the Sioux Falls Civil Service Board is supported by substantial evidence.

We next examine the record to determine whether the Board erred in its determination that City had no just cause for reducing Anderson; and whether the Board had authority to order City to create a new position, that of a Sixth Battalion Chief.

On the first question, we find a maze of city ordinances and civil service rules. City Ordinance 30-45 provides in pertinent part that "[n]o person or employee holding an office or position classified and graded under the provisions of this chapter shall be ... reduced from his position except for just cause which shall not be race, creed, color, national origin, political or religious." City Ordinance 30-46, in addition to providing a laundry list of acts of misconduct not applicable to this case, provides that "reductions may be made for other causes[.]" City Ordinance 30-19 provides in pertinent part that "[a]nyone holding an appointive office, who at the time of his appointment thereto, was in the civil service of the city shall, upon his removal from such appointive office, be returned to his former position and pay as an employee of the city...." This latter ordinance mandated the return of the former fire chief to his previous position as...