In re Jarman, 27115.

• Court: Supreme Court of South Dakota
• Writing for the Court: SEVERSON, Justice.
• Citation: 860 N.W.2d 1
• Parties: In the Matter of the Certifiability of Brett JARMAN as a South Dakota Law Enforcement Officer.
• Docket Number: No. 27115.,27115.
• Decision Date: 04 February 2015

860 N.W.2d 1

In the Matter of the Certifiability of Brett JARMAN as a South Dakota Law Enforcement Officer.

No. 27115.

Supreme Court of South Dakota.

Argued Jan. 13, 2015.
Decided Feb. 4, 2015.

860 N.W.2d 2

Marty J. Jackley, Attorney General, Kelly Marnette, Brent Kempema, Assistant Attorney's General, Pierre, South Dakota, Attorneys for appellee Law Enforcement Officers Standards & Training Commission.

Timothy J. Rensch, Rensch Law Office, Rapid City, South Dakota, Attorneys for appellant Brett Jarman.

Opinion

SEVERSON, Justice.

¶ 1.] After a contested hearing, the Law Enforcement Officers Standards and Training Commission (Commission) denied Brett Jarman's application for law enforcement certification. Jarman appealed to the circuit court, which affirmed the Commission's decision. He appeals, asserting

[860 N.W.2d 3

that the Commission improperly based its decision on “expunged conduct.” We affirm.

Background

¶ 2.] Brett Jarman applied to the Commission for law enforcement certification. He sought a certification of qualification as a candidate for county sheriff. All candidates for sheriff must meet the qualifications provided for law enforcement officers in SDCL 23–3–42, including that of “good moral character[.]” SDCL 23–3–43, SDCL 23–3–43.1. On the application, Jarman acknowledged previous arrests over the years for aggravated assault, simple assault, and disorderly conduct. On February 12, 2014, the executive secretary of the Commission sent a letter to Jarman expressing concerns about Jarman's application and notifying him that the secretary would request a formal hearing before the Commission. The executive secretary expressed concern that Jarman failed to meet the “good moral character” needed for certification due to arrests for aggravated assault in 2010 and domestic violence in 2013. SDCL 23–3–42. Jarman received notice of the contested hearing from the Commission on March 11, 2014, which indicated that the hearing would address the 2010 domestic altercation, as well as the falsification of an employment application to the United States Air Marshall's Service.

[¶ 3.] The Commission held the hearing on March 19, 2014. An attorney conducted the hearing as a hearing examiner, but the Commission was present to hear the case. At the hearing, Jarman's former girlfriend, Walleska Serafin, was the only witness called by the Commission. She testified as to events that happened in August of 2010. Jarman also testified and called two witnesses. Jarman's version of events differed completely from that of Serafin. According to Serafin, she and Jarman started a relationship in 2007. Both have experience in martial arts and met through one of Jarman's martial arts friends. By the time of the incident, they had ended their relationship due, in part, to Serafin moving to Wyoming. However, at Jarman's suggestion, they decided to attend the Sturgis Motorcycle Rally together in 2010. Serafin hoped that they might try a relationship again. After attending the rally, she returned to Jarman's house where she stayed for a few days. On the morning of her planned departure, she told Jarman that she wanted to talk to him before leaving. Jarman told her he had some things to do and left for a few hours.

[¶ 4.] Serafin testified that upon his return, she asked him if they were going to talk soon because she had to leave. Jarman did not respond to her. Instead, he answered a call from someone whom he referred to as “babe.” After hearing Jarman call that person “babe,” Serafin told him that she needed to know if their relationship would ever work out. Visibly frustrated, he gave her a “chest bump.” In response, she began throwing and breaking his valuable figurines. At some point during the altercation, he kicked her leg, too quickly for her to be able to deflect it. She collapsed, thinking that her leg was broken. Despite requests for her phone so she could call for help, Jarman refused to hand it to her. Instead, she had to crawl out to the front yard, after which he finally gave her the phone. She called his son. Although there was a discussion amongst the three about seeking medical help, they decided that because of an impending storm they should return Serafin to Wyoming. They loaded her motorcycle in Jarman's truck, and he drove her home. During the ride to Wyoming, Serafin and Jarman discussed their relationship. Serafin told Jarman that she

[860 N.W.2d 4

was going to tell the medical professionals that he kicked her. Although she would not have been able to drive immediately due to her leg, she could drive by the time they reached Wyoming and sought medical help on her own. She reported at the hospital that the injury was due to an “accident.” Her knee required surgery.

¶ 5.] According to Jarman's testimony, he and Serafin discussed their relationship the night before she was scheduled to leave. He told her that he would need “unobstructed communications” and “nonhostile responses” when they disagree on things. He needed these things due to Serafin's jealous fits. In an attempt to determine who was calling him, she would often grab his phone out of his hand when he was talking to someone. Serafin responded that she needed “unconditional love,” packed her motorcycle, and headed west. She returned 45 minutes later. Serafin asked if she could spend the night due to building clouds and impending darkness, and Jarman allowed her to stay. They watched television; Serafin sat on the couch while Jarman sat on the floor.

[¶ 6.] According to Jarman, on the morning of her departure, he was working on a residence across the street. Serafin walked over to the house, and they had another conversation on the street about their relationship, but resolved nothing. After they returned to his house, Jarman began working on his computer and making phone calls while she watched television. When he ended a conversation with “I'll call you back, babe,” Serafin flew off the couch and began using crude language to ask if he was having sexual relations with the person who called. He did not respond, instead he walked to the garage so he could charge his cellphone. While he was in there, he heard things hitting the walls. So, he returned to the house where he saw Serafin throwing figurines and told her to leave. Instead of leaving, she tried to sit down on a 3–D archery target and missed it, hit the corner, and fell on her “rear end,” which only added to her anger and caused her to throw additional items. Among the valuable things she threw was a 17th century ivory elephant, but even then Jarman did not react. However, when she reached for one of his swords, throwing something at his face in the process, he moved in to “check” her shoulder and “hook” her arm, causing her to collapse. On the way down, he made sure to hold her head and neck to prevent any injury. At no point did he withhold her phone from her. During their ride back to Wyoming, he stopped to get ice for her injury, and when he got back in the truck, she told him she was going to tell medical personnel that he kicked her. In response, he told her that she needed to tell the truth. He denied kicking her.

[¶ 7.] After hearing testimony from Serafin, Jarman, and two character witnesses, the Commission convened to consider Jarman's application. After deliberation, they determined that Jarman kicked Serafin in the manner she described and he did not meet the minimum qualifications for law enforcement certification due to lack of good moral character. Jarman appealed the Commission's decision to the circuit court arguing, among other things, that it was improper to deny his certification based on a matter which was expunged after an acquittal and that lack of good moral character was not established by clear and convincing evidence. The circuit court affirmed the Commission's decision. Jarman appeals to us raising the following issues:

1. Whether “expunged conduct” may be used to deny law enforcement certification.

2. Whether the Commission's findings were established by a preponderance of the evidence.

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Standard of Review

[¶ 8.] Our review of agency decisions is the same as the review made by the circuit court. Peterson v. Evangelical Lutheran Good Samaritan Soc'y, 2012 S.D. 52, ¶ 13, 816 N.W.2d 843, 847. “[W]e perform that review of the agency's findings ‘unaided by any presumption that the circuit court's decision was correct.’ ” Id. (quoting Kermmoade v. Quality Inn, 2000 S.D. 81, ¶ 10, 612 N.W.2d 583, 586 ). We “give great weight to the findings made and inferences drawn by an agency on questions of fact.” SDCL 1–26–36. We “reverse only when those findings are clearly erroneous in light of the entire record.” Williams v. S.D. Dep't of Agric., 2010 S.D. 19, ¶ 5, 779 N.W.2d 397, 400. Questions of law are reviewed de novo. Id.

Analysis

1. Whether “expunged conduct” may be used to deny law enforcement certification.

[¶ 9.] Candidates for election as county sheriff must “file ... a certification of qualification issued by the law enforcement officers standards commission that the candidate meets the qualifications provided in § 23–3–43.” SDCL 23–3–43.1. “No person may be elected or appointed as a county sheriff who does not meet the...