Moeller v. State

• Decision Date: 14 August 1991
• Docket Number: No. 17228,17228
• Citation: 474 N.W.2d 728
• Parties: Leslie MOELLER, Petitioner and Appellant, v. STATE of South Dakota, Respondent and Appellee.
• Court: South Dakota Supreme Court

Page 728

474 N.W.2d 728

Leslie MOELLER, Petitioner and Appellant, v. STATE of South Dakota, Respondent and Appellee.

No. 17228.

Supreme Court of South Dakota.

Argued Jan. 7, 1991.

Decided Aug. 14, 1991.

Dennis H. Hill of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for petitioner and appellant.

Sheri Sundem Wald, Asst. Atty. Gen. (Roger A. Tellinghuisen, Atty. Gen., on brief), Pierre, for respondent and appellee.

WUEST, Justice (on reassignment).

Leslie Moeller (Moeller) appeals the decision of the Commissioner of Claims (Commissioner) granting summary judgment on his claim for money damages against the State of South Dakota (State) under the State's claim procedure. SDCL ch. 21-32. The Commissioner granted summary judgment ruling Moeller's claim was barred by SDCL 21-32-2, the applicable statute of limitations. We reverse.

FACTS

Moeller was born on September 1, 1957. On November 10, 1974, a then seventeen-year-old Moeller was arrested and charged with grand larceny. On January 2, 1975, Moeller was transferred from county district court (juvenile court) to circuit court to face criminal charges as an adult. On January 10, 1975, Moeller was convicted of grand larceny and sentenced to serve one year.

On three occasions, Moeller challenged his transfer to and conviction in circuit court. The first two attempts were brought as applications for writs of habeas corpus. Moeller v. Solem, 363 N.W.2d 412 (S.D.1985) (Moeller I ), challenged Moeller's conviction on the grounds that a juvenile transfer hearing was not held, and Moeller v. Solem, 395 N.W.2d 165 (S.D.1986) (Moeller II ), challenged the validity of the conviction on grounds that there was no record of a transfer hearing. Both habeas writs were denied as moot.

The 1986 appeal produced a dissenting opinion by Justice Sabers which, in part, stated the court should issue a writ of coram nobis in accordance with Petition of Brockmueller, 374 N.W.2d 135 (S.D.1985). Moeller filed such a writ on January 12, 1987, and on March 5, 1987, he was granted an order vacating the judgment of conviction.

On February 22, 1988, Moeller filed a verified petition for damages pursuant to SDCL ch. 21-32. In this petition, Moeller alleged he sustained damages during his incarceration pursuant to the January 10, 1975 judgment of conviction that was vacated on March 5, 1987. State filed a motion for summary judgment, arguing Moeller's claim was barred by the statute of limitations and the doctrines of judicial and prosecutorial immunity. The Commissioner granted State's motion and dismissed the claim. Moeller appeals.

ISSUES

1. Was Moeller's claim barred by the statute of limitations?

2. Was Moeller's claim barred by the doctrine of absolute immunity?

ANALYSIS

Before reaching the merits of this appeal, we address State's contention that we lack jurisdiction to consider this appeal. We assert jurisdiction of this matter in accordance with Article V, Section 5, of the South Dakota Constitution, which states:

The Supreme Court shall have such appellate jurisdiction as may be provided by the legislature, and the Supreme Court or any justice thereof may issue any original or remedial writ which shall then be heard and determined by that court.

In Burns v. Kurtenbach, 327 N.W.2d 636 (S.D.1982), this court extended original jurisdiction to an action in the nature of quo warranto. We held the 1972 constitutional amendment governing appellate jurisdiction of the Supreme Court and original jurisdiction of circuit courts in no way limited the powers granted by prior provisions with regard to original jurisdiction of the Supreme Court. Prior to the 1972 amendment, Article V, Section 2 provided our court "shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law." Burns, 327 N.W.2d at 637.

Our jurisdictional power is not intended to replace the legislative role set forth under SDCL 21-32-7, ¹ whereby findings of the Commissioner shall be submitted to the legislature for the determination of a claim against the state. Our review, in the nature of certiorari, supervises the legal determination of a circuit court judge appointed to the office of commissioner under SDCL 21-32-1. ^{2 & 3}

1. Statute of Limitations

We turn now to the merits of Moeller's appeal. SDCL ch. 21-32 generally addresses remedies against the State, and in that regard SDCL 21-32-2 specifically states: "Action on any claim on contract or tort against the state shall be commenced within one year after same has arisen." (Emphasis added.) The Commissioner determined Moeller's claim was not timely filed. We disagree.

Moeller's claim for damages under SDCL ch. 21-32 is premised upon the invalidity of his 1975 conviction. However, because judgments are presumed valid until properly vacated, 46 Am.Jur.2d Judgments, Sec. 28, the very foundation of his claim was presumed absent. Moeller was thus precluded from bringing his claim until his conviction was set aside by the coram nobis court. See Downton v. Vandemark, 571 F.Supp. 40 (N.D.Ohio 1983); Triplett v. Azordegan, 478 F.Supp. 872 (N.D.Iowa 1977). Accordingly, Moeller's claim "arose" on March 5, 1987, the date he was granted an order vacating his conviction. His February 22, 1988 petition for damages was therefore timely filed. We reverse the Commissioner on this issue.

2. Doctrine of Absolute Immunity

The State urges sovereign immunity as second issue upon which to sustain the grant of summary judgment. Moeller counters by claiming sovereign immunity is not an issue in this proceeding. We quote from his reply brief, "Moeller does not seek to hold judge, prosecutor, or state "liable" for his damages; he seeks only to have his claim examined and reported in accordance with these statutory provisions," referring to SDCL ch. 21-32. We further quote from his brief, "if the State were allowed to raise the immunity of each employee or agent as a defense to every claim ever filed under SDCL 21-32-1 et seq., no claim could ever be considered. Such a result renders the claim statute meaningless."

We agree with Moeller. SDCL 21-32-1 creates the office of commissioner of claims to hear alleged claims against the state on contract or tort. The statute further provides for a circuit judge to act ex officio as the commissioner of claims. ⁴ SDCL 21-32-3 provides a procedure for filing a petition for a just and meritorious claim against the State for the payment of which no appropriation exists. Service upon the Attorney General is required by SDCL 21-32-4 in the manner of service of a summons in civil actions. The statutes direct the commissioner to set a hearing date at which the commissioner hears evidence in support of, or in opposition to, such claim. It is further provided evidence in connection with the merits of such claim shall be in conformity with the rules of evidence in civil proceedings. SDCL 21-32-7 requires the commissioner to prepare his findings fully itemized in respect to the amount of the claim or damages which must be filed with the Governor, who must submit the same to the next session of the Legislature for consideration, compromise, settlement or rejection. The findings of the commissioner are advisory only, and do not acknowledge liability in any manner or extent on the part of the state.

It is obvious the Legislature is the final arbitrator as to whether or not the claim is paid. If they pay the claim, sovereign immunity, in effect, is waived. Or, they may decline payment on the basis of sovereign immunity, or for any other reasons.

This court said in Conway v. Humbert, 82 S.D. 317, 323, 145 N.W.2d 524, 528 (1966):

The legislature has provided a procedure for the investigation of claims arising on contract or tort against the state and for the payment of which there are no available appropriations. SDC 1960 Supp. 33.43. The commissioner of claims is empowered to hear and consider evidence and make findings and recommendations to the legislature. This act specifically provides that the "findings of the commissioner shall be advisory only, and shall not be construed or considered as an acknowledgment of liability in any manner or extent on the part of the state." This statute creates a legislative instrumentality or agency authorized to find or determine facts. The powers and functions of the commissioner are not judicial. Sovereign immunity of the state is not waived and liabilities of the state are not enlarged. ⁵ (Emphasis added).

We reverse the Commissioner on both issues.

HERTZ, Circuit Court Judge, Acting as Supreme Court Justice, concurs.

HENDERSON, J., concurs specially.

SABERS, J. and AMUNDSON, Circuit Court Judge, concur in part and dissent in part.

WUEST, J., concurs specially in part and dissents in part.

AMUNDSON, Circuit Court Judge, sitting for MILLER, C.J., disqualified.

HENDERSON, Justice (specially concurring).

In concurring to the majority opinion in chief, it is my opinion that Judge Zinter, acting as a commissioner, must now proceed to have a hearing, prepare his findings, and file them pursuant to SDCL 21-32-7. When he has accomplished this--the State of South Dakota is still not liable for a penny to Moeller. His findings are advisory only. South Dakota, and its people, are only liable to that extent which the State Legislature determines in the 1992 Legislative Assembly. The 1992 State Legislature may compromise, settle, or reject Moeller's claim.

We are not confronted with a Henny-Penny, catastrophic situation. The sky has not fallen because this walnut dropped into the South Dakota Supreme Court.

Plausible it is not--to hold that the one-year statute of limitations via SDCL 21-32-2 commences on a damage claim prior to the date the conviction was vacated by Judge McKeever--when no valid damage claim can be made before that time--for such a conclusion would run afoul of the constitutional infirmities of the statute of...