Carlson v. Hudson, No. 12406

CourtSupreme Court of South Dakota
Writing for the CourtMORGAN
Citation277 N.W.2d 715
PartiesDavid CARLSON, Plaintiff and Appellant, v. John W. HUDSON, as Superintendent of the South Dakota School for the Deaf, andJohn W. Larson, John E. Sutton, Patricia Mendel, Leslie W. Jensen, H. LaurenLewis, Celia Miner and Russell O. Peterson, as South Dakota Regents ofEducation,Defendants and Respondents.
Docket NumberNo. 12406
Decision Date12 April 1979

Page 715

277 N.W.2d 715
David CARLSON, Plaintiff and Appellant,
v.
John W. HUDSON, as Superintendent of the South Dakota School
for the Deaf, andJohn W. Larson, John E. Sutton, Patricia
Mendel, Leslie W. Jensen, H. LaurenLewis, Celia Miner and
Russell O. Peterson, as South Dakota Regents
ofEducation,Defendants and Respondents.
No. 12406.
Supreme Court of South Dakota.
Argued Jan. 24, 1979.
Decided April 12, 1979.

Page 716

Dennis L. Duncan of Zimmer, Richter & Duncan Parker, for plaintiff and appellant.

David J. Figuli, Asst. Atty. Gen., Pierre, for defendants and respondents; William J. Janklow, Atty. Gen., Pierre, on brief.

MORGAN, Justice.

This is an appeal from a judgment of the Circuit Court for the Second Judicial Circuit affirming the Board of Regents' termination of appellant's employment as an instructor at the State School for the Deaf. Appellant contends that his statutory and due process rights were violated. We affirm the circuit court's action.

David Carlson, appellant, had been employed as a teacher at the School for the Deaf in Sioux Falls, South Dakota, since 1957. In 1969, an incident involving some girls in one of his classes resulted in his being reprimanded and the exclusion of girls from his classes for a time. In 1973, a similar incident was reported and, in August of 1973, appellant was informed by the school superintendent, Mr. Hudson, that he would not be recommending that appellant be rehired for the academic year 1974-75. The matter had been brought to the attention of the Board of Regents (Regents) in an executive session in July of 1973, with no immediate action or discussion made public.

At the Regents' April 1974 meeting, Mr. Hudson presented, and the Regents approved, the salary list for the School for the Deaf for the academic year 1974-75. The salary list did not contain appellant's name but did contain an allocation for his position which was listed as vacant, thus effectively terminating his employment.

On April 27, 1974, a hearing was requested by appellant concerning his termination. The hearing, which was held on May 20, 1974, with Superintendent Hudson presiding, resulted in affirmance of appellant's termination. Finally, on July 29, 1974, the Regents specifically acknowledged appellant's termination.

Appellant then appealed Superintendent Hudson's decision to circuit court, which resulted in dismissal of the petition for review. Appellant now appeals the decision of the circuit court.

We deal first with appellant's substantive question raised by his contention that his employment by the Regents fell within the provisions of SDCL 13-43-9 through SDCL 13-43-10.1 inclusive. Under those provisions, which are commonly referred to as the "continuing contract" law, a teacher who is in or beyond his/her third full term of employment is entitled to certain procedural steps including proper notice, hearing and stated reasons for dismissal. Appellant argues that these procedures were not followed and that his dismissal was improper. The circuit court ruled, however, that the provisions of SDCL Chapter 13-43 are not applicable to teachers at the South Dakota School for the Deaf and appellant is therefore not entitled to their protection and he cannot rely upon SDCL Chapter 13-40 as a basis for appeal. We agree.

South Dakota statutory law in the area of education is contained in SDCL Title 13, which consists of sixty-two separate chapters. SDCL Chapters 13-1 through 13-46 essentially deal with elementary and secondary education including schools, students and teachers. SDCL Chapters 13-49 through 13-62 essentially deal with the Regents and the institutions, students and teachers under its control. The establishment and maintenance of a system of elementary and secondary schools by the legislature has its foundation in Article VIII, § 1

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of the South Dakota Constitution. 1 The responsibility to create, maintain and provide for the governing of such a system was left in the hands of the legislature. The establishment and maintenance of South Dakota's institutions of higher education, as well as the schools for the visually handicapped and for the deaf, however, were not left to the legislature. They were provided for under a separate section of the constitution, and in that same section, the constitution places "control" of those institutions in the hands of the Regents. 2 This Court has previously stated that the "control" vested in the Regents by the constitution unequivocally includes the unfettered right to employ and discharge its employees. Worzella v. Board of Regents of Education, 77 S.D. 447, 93 N.W.2d 411 (1958). Further, the legislature has provided that,

The board of regents is authorized to employ and dismiss all officers, instructors, and employees of such institutions, necessary to the proper management thereof, to determine their number, qualifications, and duties, fix the term of their employment, and rate and manner of their compensation, . . . . SDCL 13-49-14.

This provision, although "merely confirm(ing) and clarify(ing) the Board of Regents' constitutional power to employ and dismiss all officers, instructors, and employees at all institutions under its control," 3 signifies the legislature's recognition of the Regents' independent power to control and determine its employee relationships, rules and regulations. The legislature is without power to statutorily establish a tenure system for the employees of the Regents and, therefore SDCL Chapter 13-43 does not apply to those employees and they do not receive any protections it would afford. 4

We next look to appellant's procedural questions raised by his contention that the trial court erred when it concluded: (1) that his discharge did not give rise to a contested case as defined by SDCL 1-26-1(2) thereby affording him the procedural protection and the safeguards of SDCL Chapter 1-26; and (2) that he was not denied due process in the hearing before Superintendent Hudson.

In order for the provisions of SDCL Chapter 1-26 to apply, the matter at hand must be a "contested case" as defined in SDCL 1-26-1(2). 5 In considering whether this matter is a contested case, the key

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phrase in the definition is...

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11 practice notes
  • Rushmore State Bank v. Kurylas, Inc., No. 15764
    • United States
    • Supreme Court of South Dakota
    • May 11, 1988
    ...as a general rule, this court has held that property interests should be liberally, rather than strictly, construed. Carlson v. Hudson, 277 N.W.2d 715, 719 (S.D.1979). This court has recognized various other property interests which clearly fall outside Page 653 of this statutory definition......
  • Moulton v. State, Nos. 15373
    • United States
    • Supreme Court of South Dakota
    • September 9, 1987
    ...are required by law to be determined by an agency after an opportunity for hearing...." SDCL 1-26-1(2) (quoted in Carlson v. Hudson, 277 N.W.2d 715, 717-18 (S.D.1979)). There are three methods by which a hearing may be "required by law": (1) statute; (2) agency rule; or (3) due process cons......
  • Parker v. Western Dakota Insurors, Inc., No. 20682.
    • United States
    • Supreme Court of South Dakota
    • February 2, 2000
    ...The definition of "property interests should be liberally, rather than strictly, construed." Id. at 652, (citing Carlson v. Hudson, 277 N.W.2d 715, 719 (S.D.1979)). Here also the trial court granted a verdict to Western Dakota solely because it had previously ruled for Parker on the contrac......
  • South Dakota Bd. of Regents v. Meierhenry, Nos. 14309
    • United States
    • South Dakota Supreme Court
    • July 3, 1984
    ...it concerns the permissible scope of the regents authority to delegate powers conferred upon it by a statute. In Carlson v. Hudson, 277 N.W.2d 715, 717 (S.D.1979), without reference to Carter, we likewise stated that the control vested in the regents by the constitution "unequivocally inclu......
  • Request a trial to view additional results
11 cases
  • Rushmore State Bank v. Kurylas, Inc., No. 15764
    • United States
    • Supreme Court of South Dakota
    • May 11, 1988
    ...as a general rule, this court has held that property interests should be liberally, rather than strictly, construed. Carlson v. Hudson, 277 N.W.2d 715, 719 (S.D.1979). This court has recognized various other property interests which clearly fall outside Page 653 of this statutory definition......
  • Moulton v. State, Nos. 15373
    • United States
    • Supreme Court of South Dakota
    • September 9, 1987
    ...are required by law to be determined by an agency after an opportunity for hearing...." SDCL 1-26-1(2) (quoted in Carlson v. Hudson, 277 N.W.2d 715, 717-18 (S.D.1979)). There are three methods by which a hearing may be "required by law": (1) statute; (2) agency rule; or (3) due process cons......
  • Parker v. Western Dakota Insurors, Inc., No. 20682.
    • United States
    • Supreme Court of South Dakota
    • February 2, 2000
    ...The definition of "property interests should be liberally, rather than strictly, construed." Id. at 652, (citing Carlson v. Hudson, 277 N.W.2d 715, 719 (S.D.1979)). Here also the trial court granted a verdict to Western Dakota solely because it had previously ruled for Parker on the contrac......
  • South Dakota Bd. of Regents v. Meierhenry, Nos. 14309
    • United States
    • South Dakota Supreme Court
    • July 3, 1984
    ...it concerns the permissible scope of the regents authority to delegate powers conferred upon it by a statute. In Carlson v. Hudson, 277 N.W.2d 715, 717 (S.D.1979), without reference to Carter, we likewise stated that the control vested in the regents by the constitution "unequivocally inclu......
  • Request a trial to view additional results

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