Hanks v. Corson Bd. of County Com'Rs

• Decision Date: 17 January 2007
• Docket Number: No. 24003.,24003.
• Citation: 727 N.W.2d 296,2007 SD 10
• Parties: Curtis W. HANKS, Plaintiff and Appellee, v. CORSON COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant and Appellant.
• Court: South Dakota Supreme Court

727 N.W.2d 296

2007 SD 10

Curtis W. HANKS, Plaintiff and Appellee, v. CORSON COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant and Appellant.

No. 24003.

Supreme Court of South Dakota.

Argued August 30, 2006.

Decided January 17, 2007.

Elton R. Anson of Crane & Anson, Lemmon, South Dakota, Attorneys for appellee.

Thomas E. Simmons, G. Verne Goodsell, Jonathan M. Oostra of Gunderson, Palmer, Goodsell & Nelson, Rapid City, South Dakota, Attorneys for appellant.

ZINTER, Justice.

[¶ 1.] The Corson County Board of Commissioners (Board or County) contracted with a private attorney to provide legal services for the County. The circuit court found that some of the contemplated legal services fell within the scope of the Corson County State's Attorney's duties. To that extent, the circuit court concluded that the contract was void because it usurped the duties of an elected state's attorney. The Board appeals. We affirm and remand for modification of the judgment to conform to the circuit court's findings of fact and conclusions of law.

Facts and Procedural History

[¶ 2.] Curtis W. Hanks was elected as the part-time Corson County State's Attorney in 2000. Notwithstanding this elected position, the Board contracted with Cheryl Laurenz-Bogue for certain legal services during Hanks's term of office. The January 2003 contract, the only contract at issue in this appeal, delineated the scope of the private legal services:

In exchange for the payments set forth below, Law Firm will provide and be responsible for performing all civil representation regarding the County as may be requested, in state, federal and tribal courts, as set forth in Chpt. [sic] 7-16, with the exception of appellate representation in the Federal Courts, absent a separate agreement with County. In addition to the obligations and responsibilities as set for [sic] in SDCL Chpt. [sic] 7-16, Law Firm is further obligated to: (a) be available for conferences or meetings with the Corson County Commission and individual County officers as needed; (b) be available by telephone, during normal business hours, at Law Firm's main office located in Dupree, SD, or in Faith, SD; and (c) be available to County or State law enforcement or other County officials on an emergency basis during non-business hours.

[¶ 3.] Hanks challenged the contract by invoking the circuit court's power of appellate review over county commission decisions under SDCL 7-8-27.¹ The circuit court initially granted Hanks appellate relief, concluding that the contract was void because it displaced the duly elected state's attorney. On appeal of that decision to this Court, we ruled that the contract was ambiguous. Therefore, we remanded the matter for a determination of "the nature of the legal services contemplated by the Board...." Hanks v. Corson County Bd. Com'rs, 2005 SD 38, ¶ 17, 694 N.W.2d 698, 703 (Hanks I). It was also disclosed during the first appeal that Hanks held a position as a tribal judge. "Because we [were] unable to determine whether a violation of SDCL 7-16-18² disqualified Hanks from serving as state's attorney or had some other legal effect, [we ordered that] upon remand the circuit court should hold further proceedings to determine the legal effects of any violation of this law by Hanks." Id. at ¶ 16, 694 N.W.2d at 703.

[¶ 4.] On remand, the circuit court found that some of the contemplated legal services were within the scope of the state's attorney's duties. The Board now appeals this finding. With respect to the tribal judge issue, the court found that Hanks was an Associate Justice for the Standing Rock Tribe in North Dakota. The court then considered the legal effects of that tribal position. It concluded that it was without jurisdiction to remove Hanks from the tribal judgeship. It also concluded that Hanks's judicial position had no effect on the legality of the contract. The Board does not contest these two conclusions. The Board does, however, contend that the court should have entered declaratory relief indicating that Hanks was violating SDCL 7-16-18.

Legal Effects of Hanks's Violation of SDCL 7-16-18

[¶ 5.] As previously mentioned, the Board does not appeal the circuit court's conclusions that it had no jurisdiction to remove Hanks from his judgeship and that the tribal judgeship did not affect the legality of the contract. Hanks's judicial position could not have affected the legality of the contract under the facts of this case because the parties stipulated that "Hanks [had] not been disqualified as Corson County States [sic] Attorney, nor [had] the County requested Curtis W. Hanks be judicially disqualified from representing Corson County, South Dakota on civil matters." Further, at oral argument, the Board completely removed this issue from consideration by indicating they were not defending the contract based on Hanks's apparent statutory violation:

Court: You're not defending the contract based on the violation; you simply want a declaration of a violation as we had ... mentioned in our last opinion?

Counsel: Yes.

Therefore, under the particular facts of this case, we affirm the circuit court's first two conclusions concerning the legal effects of Hanks's judicial office.

[¶ 6.] The third possible effect of Hanks's judicial office concerned his right to hold the office of state's attorney.³ On this issue, the Board conceded at oral argument that it could not challenge Hanks's right to hold that office in these proceedings:

Court: What you're asking for then is a declaration that he's violating the statute, no more no less, is that what you're asking?

Counsel: That's right ...

Court: You're not challenging his office?

Counsel: We are not and we can't ...

The Board acknowledged that it could not challenge Hanks's status as state's attorney in this county commission appeal because "quo warranto is the proper proceeding to determine title to and possession of a public office." Burns v. Kurtenbach, 327 N.W.2d 636, 638 (S.D.1982) (citations omitted). See also State v. Jensen, 2003 SD 55, ¶ 10, 662 N.W.2d 643, 646; McElhaney v. Anderson, 1999 SD 78, ¶ 8, 598 N.W.2d 203, 205.⁴ "We have departed from this rule only in instances of `exceptional circumstances' of an emergency nature involving the public interest of the entire state or a good portion of it." Weger v. Pennington County, 534 N.W.2d 854, 859 (S.D.1995) (citation omitted). This dispute concerning a county's decision to contract for legal services is not an exceptional circumstance of an emergency nature.

[¶ 7.] The Board, however, contends that the circuit court should have entered a declaratory ruling that Hanks was violating SDCL 7-16-18. The Board asserts that the failure to enter a declaratory ruling violated our mandate in Hanks I. However, this case involves an appeal from a county commissioner decision, and no declaratory relief was sought under SDCL ch. 21-24, the Declaratory Judgment Act. That is significant because:

[T]he declaratory judgment statutes do not abrogate the ordinary rules of pleading, practice, procedure, and evidence. Even the most liberal construction that can be placed upon such statutes will not warrant the courts in granting affirmative relief by way of a declaratory judgment in the absence of pleading and proof warranting such relief.

State Highway Commission v. Sweetman Const. Co., 83 S.D. 27, 32, 153 N.W.2d 682, 684-685 (1967) (quoting Anderson, Declaratory

Judgments, § 198, p. 410) (additional citation omitted).

[¶ 8.] Here, declaratory relief was not sought in the underlying appeal. Moreover, a declaration of a statutory violation was immaterial considering the procedural posture of this case. It was immaterial because the County did not defend the contract on the allegation that there was no Corson County State's Attorney due to Hanks unlawfully holding a judicial office. Under these circumstances, neither the pleadings nor the proof warranted a declaratory ruling. For these reasons, we conclude that the circuit court followed our mandate to consider the legal effects of this apparent statutory violation.

Whether the Contract Exceeded the Permissible Scope of Private Attorney Representation of a County Served by an Elected State's Attorney

[¶ 9.] In Hanks I we concluded that the contract was ambiguous concerning the intended extent of the legal services. "When there is an ambiguous contract, evidence may be introduced to determine the intention of the parties, which is a question of fact to be resolved by the fact finder." Ford v. Moore, 1996 SD 112, ¶ 10, 552 N.W.2d 850, 855 (citation omitted). A circuit court's findings of fact are reviewed under the clearly erroneous standard. Miller v. Jacobsen, 2006 SD 33, ¶ 19, 714 N.W.2d 69, 76 (citation omitted). "We will overturn the trial court's findings of fact on appeal only when a complete review of the evidence leaves the Court with a definite and firm conviction that a mistake has been made." Id.

[¶ 10.] The Board first contends that the circuit court erred in relying on contract language to determine the intended scope of the agreement. The Board argues that the court could not look to the contract because we previously ruled that it was ambiguous. However, ambiguity does not foreclose consideration of the written contract: it simply allows the consideration of extrinsic evidence to determine the intent of that contract. "[I]f the contract `is uncertain or ambiguous,' parol and extrinsic evidence may be used for clarification." Pauley v. Simonson, 2006 SD 73, ¶ 8, 720 N.W.2d 665, 668 (citing Jensen v. Pure Plant Food Intern., Ltd., 274 N.W.2d 261, 263-264 (S.D.1979)). Therefore, the circuit court properly considered the contract language together with extrinsic evidence to determine the intended scope of the agreement.

[¶ 11.] This brings us to the central issue: whether this contract contemplated the displacement of Hanks as the elected state's attorney on matters in which only the state...