Hansen v. S. DAKOTA BD. OF PARDONS, 20820.
Citation | 601 N.W.2d 617,1999 SD 135 |
Decision Date | 20 October 1999 |
Docket Number | No. 20820.,20820. |
Parties | Paul J. HANSEN, Petitioner and Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee. |
Court | Supreme Court of South Dakota |
Michael B. Thompson, Sioux Falls, for petitioner and appellant.
Mark Barnett, Attorney General, Gary R. Campbell, Assistant Attorney General, Pierre, for appellee.
[¶ 1.] Paul J. Hansen appeals the dismissal of his appeal from a decision by the South Dakota Board of Pardons and Paroles for failure to timely file the appeal. We affirm.
[¶ 2.] Hansen is presently an inmate at the South Dakota State Penitentiary. On August 5, 1998, the Board of Pardons and Paroles revoked his parole and served notice of entry of its decision the following day. On September 3, 1998, Hansen attempted to appeal the Board's decision pursuant to SDCL 1-26-31 by mailing a notice of appeal to the Minnehaha County Clerk's Office and the Attorney General's Office. Fellow inmates assisted Hansen in preparation of his appeal. Hansen did not include a filing fee or application for waiver of this fee with his notice.
[¶ 3.] Because the notice of appeal was not accompanied by fee or application for waiver, the clerk of the circuit court refused to file Hansen's appeal and returned Hansen's notice to William Delaney, an attorney on contract with the state penitentiary to assist inmates with their legal matters. Attorney Delaney conferred with Hansen and subsequently filed an amended notice of appeal and application for waiver of the filing fee on September 11, 1998. This was after the thirty-day deadline for filing an appeal under SDCL 1-26-31.
[¶ 4.] The State filed a motion to dismiss the appeal based on its untimely filing. The circuit court determined that due to the untimeliness of the appeal, it lacked jurisdiction and granted the State's motion. Hansen appeals.
[¶ 5.] The question in this case is whether a filing fee or waiver thereof is required to perfect an appeal under the Administrative Procedures Act? SDCL 1-26-31 provides:
An appeal shall be taken by serving a copy of a notice of appeal upon the adverse party, upon the agency, and upon the hearing examiner, if any, who rendered the decision, and by filing the original with proof of such service in the office of the clerk of courts of the county in which the venue of the appeal is set, within thirty days after the agency served notice of the final decision or, if a rehearing is authorized by law and is requested, within thirty days after notice has been served of the decision thereon.
Appeals taken under this Act are governed by the rules of civil procedure. SDCL 1-26-32.1.
[¶ 6.] SDCL 16-2-29(3)(j) provides that the clerk of courts shall charge and collect fees for appeals to the circuit court from an action of the state, its officers, boards, agencies and commissions. This fee may be waived on a motion to the court if the moving party is unable to pay the fee. SDCL 16-2-29.2 -29.4. Absent this waiver, the use of the word "shall" in SDCL 16-2-29 makes payment of the filing fee mandatory. The clerk who refused to file Hansen's appeal without a fee or a waiver also relied on Unified Judicial System policy which provides in pertinent part:
FILING FEES—Clerks must charge filing fees of everyone who files a lawsuit except that no filing fees are to be charged: 1) for appeals of unemployment benefit claim; 2) attorneys hired by a state institution to pursue a debt; or 3) collection agencies representing a state agency. Collection agencies bringing actions in their own names rather than the names of the signors are to pay filing fees.
[¶ 7.] Although there is no caselaw addressing this issue in appeals under the Administrative Procedures Act, we have decided this question in appeals from the circuit court to this Court. Under a former version of SDCL 16-2-29.1, which governs fees collected by the clerk of the Supreme Court, we held the appeal was not perfected...
To continue reading
Request your trial-
WATERTOWN COOP. ELEVATOR v. Dept. of Rev.
...is actually made within the thirty day appeal period. The Department anchors its claim on our holding in Hansen v. South Dakota Board of Pardons and Paroles, 1999 SD 135, 601 N.W.2d 617. We review the grant or denial of a motion to dismiss as a legal question, asking, "is the pleader entitl......
-
Shell v. Warden, Mike Durfee State Prison
... ... DURFEE STATE PRISON; THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA; BRENT FLUKE, Respondents. No. 5:21-CV-05050-KES United States District ... of his parole to the South Dakota Board of Pardons and ... Paroles (“Board”) under SDCL ch. 1-26. Nor did he ... timely filed and served. Hansen v. S.D. Bd. of Pardons ... and Paroles , 601 N.W.2d 617, 619 (S.D ... ...
-
Johnson v. Clark
...to hear the appeal. Schreifels v. Kottke Trucking, 631 N.W.2d 186, 188 (S.D. 2001); Hansen v. South Dakota Board of Pardons & Paroles, 601 N.W.2d 617, 619 (S.D. 1999). Mr. Johnson admits that he never filed an appeal or a habeas petition in state court presenting the claims he now presents ......
-
Kovac v. S. Dakota Reemployment Assistance Div.
...Based on the statutory requirement for payment of a filing fee for administrative appeals to the circuit court, we determined in Hansen, that collecting filing fee is necessary to "perfecting" an appeal.[7] 1999 S.D. 135, ¶¶ 6-8, 601 N.W.2d at 618-19. But here collecting a filing fee was un......