South Dakota Bd. of Regents v. Heege

• Decision Date: 24 August 1988
• Docket Number: No. 16307,16307
• Citation: 428 N.W.2d 535,48 Ed.LawRep. 1283
• Parties: 48 Ed. Law Rep. 1283 SOUTH DAKOTA BOARD OF REGENTS, Applicant, v. Robert C. HEEGE, Circuit Judge in and for the Second Judicial Circuit, Respondent.
• Court: South Dakota Supreme Court

Page 535

428 N.W.2d 535

48 Ed. Law Rep. 1283

SOUTH DAKOTA BOARD OF REGENTS, Applicant, v. Robert C. HEEGE, Circuit Judge in and for the Second Judicial Circuit, Respondent.

No. 16307.

Supreme Court of South Dakota.

Argued July 6, 1988.

Decided Aug. 24, 1988.

Ronald W. Banks of Banks, Johnson, Johnson Colbath & Huffman, P.C., (Nora L. Doyle, Asst. Atty. Gen. Pierre, on brief), James F. Shekleton, Aberdeen, for applicant.

Robert C. Heege, Sioux Falls, pro se.

Thomas K. Wilka of Hagen & Wilka, P.C., Sioux Falls, for intervenor.

GILBERTSON, Circuit Judge.

ISSUE

SHOULD THIS COURT ISSUE A PEREMPTORY WRIT OF PROHIBITION AGAINST THE CIRCUIT COURT OF MINNEHAHA COUNTY ON THE GROUNDS THAT THE CIRCUIT COURT EXCEEDED ITS JURISDICTION IN ATTEMPTING TO ASSERT THE SAME OVER THE SOUTH DAKOTA BOARD OF REGENTS CONCERNING A LABOR DISPUTE WHICH HAD NOT PREVIOUSLY BEEN FILED WITH THE SOUTH DAKOTA DEPARTMENT OF LABOR?

FACTS AND PROCEDURE

The Council of Higher Education (COHE) is the exclusive bargaining agent for faculty members of the various institutions under the jurisdiction of the Board of Regents (Regents or BOR). These parties had been attempting to negotiate a new master contract for the 1988-89 school year as the current contract was about to expire. With no new contract agreed upon, the Regents, through their institutional presidents at Northern State College and the School for the Deaf, sent out individual contracts called Notices of Appointment to faculty members on or about May 18, 1988. The individual offers were made at the 1987-88 compensation level. They also stated that they would be subject to any changes of a new master contract should such an agreement be concluded. Under the existing master contract, failure of the faculty to respond to this individual contract offer within 20 days of receipt could result in liquidated damages being assessed against them or other disciplinary action.

On June 6, 1988, Respondent Robert C. Heege, Circuit Court Judge for Minnehaha County (the circuit court), upon motion of COHE, issued an ex-parte alternative writ of prohibition against the South Dakota Board of Regents. This alternative writ ordered that:

the South Dakota Board of Regents, and the various institutions under its supervision, and specifically Northern State College and the South Dakota School for the Deaf, are hereby prohibited from enforcing the twenty-day return date as specified in the Notices of Appointment previously sent to faculty unit members, terminating the employment for any existing faculty unit members who have not returned the Notice of Appointment within the twenty-day period, and offering said positions to new personnel, and enforcing the liquidated damages provision as set forth in Section 1.8 of Division II of the BOR-COHE agreement until thirty days have elapsed from the conclusion of ongoing negotiations with respect to levels of compensation, until further order of this Court.

This alternative writ of prohibition also set a hearing date before the circuit court for July 5, 1988, at which the court would consider whether a peremptory writ of prohibition would issue against the Regents.

On June 9, 1988, the Regents filed with the circuit court a motion to quash the alternative writ on the grounds that the circuit court lacked subject matter jurisdiction. The Regents argued that the matter was a public employer/employee labor dispute and thus within the scope of SDCL ch. 3-18. As such, primary jurisdiction initially rested exclusively with the South Dakota Department of Labor. It was further argued that COHE had failed to show any exceptional circumstances such as immediate and irreparable harm without an appropriate administrative remedy, which would allow COHE to by-pass the administrative procedures of SDCL ch. 3-18 and proceed directly in the circuit court. The Regents stated that their action was not an unfair labor practice under SDCL 3-18-3.1, and therefore, COHE and its membership had suffered no harm at all, let alone such as would entitle them to a writ of prohibition. The circuit court rejected this argument and held that it had jurisdiction to hear the matter at the hearing scheduled for July 5, 1988.

On June 23, 1988, the Regents filed an original action in this court against the circuit court pursuant to SDCL 21-30-1 and 2 and SDCL ch. 15-25. The Regents sought both alternative and peremptory writs of prohibition against the circuit court on the grounds that the circuit court either lacked jurisdiction over the subject matter or exceeded its jurisdiction. This court granted an alternative writ against the circuit court and set an expedited briefing and argument schedule given the time constraints of the upcoming school year.

Briefs were submitted by the circuit court, COHE, and the Regents. On July 6, 1988, oral argument was had before this court at which the Regents and COHE appeared. Upon completion of argument, conference was held and this court unanimously determined that the Regents were entitled to the requested peremptory writ of prohibition against the circuit court, and it was issued that day. This opinion follows, which is a discussion of the issues and rationale that led the court to grant this extraordinary relief.

THE WRIT OF PROHIBITION

A writ of prohibition is an extraordinary remedy. Under SDCL 21-30-2, this court is specifically empowered to issue a writ of prohibition against a circuit court. Where the circuit court lacks subject matter or personal jurisdiction and the applicant has no plain, speedy and adequate remedy in the ordinary course of the law against the circuit court's erroneous assumption of jurisdiction, this court will grant this extraordinary relief. Shaw v. Circuit Court, 27 S.D. 49, 129 N.W. 907 (1911).

The Regents allege that they had no other plain, speedy and adequate remedy given the facts of this case. The Regents argue that:

1. Under the circuit court's writ of prohibition of June 6, 1988, the Regents were prohibited from demanding the individual contract offers be returned, thus allowing them no accurate method of determining which instructors were returning for the upcoming school year and which were not;

2. Since the Regents did not know which faculty were leaving, the Regents had no accurate method of ascertaining which replacements were needed;

3. With school scheduled to start August 30, 1988, the Regents were facing the possibility of not knowing which class offerings could be staffed with trained professors;

4. Offering classes for which no trained instructors were available would result in cancellation of some already scheduled classes, disruption to the institutions and students and exposure to liability from suits by students for offering courses which could not be held.

COHE counters that this court erred in issuing its alternative writ of prohibition to the circuit court on June 24, 1988. Further, COHE argues that this court should deny the peremptory writ because the Regents had a remedy at law. COHE and the circuit court believe that the circuit court hearing scheduled for July 5, 1988, on the requested peremptory writ should have been allowed to have been held. At that hearing, the circuit court could have made a final determination on COHE's claim that it was jurisdictionally entitled to its requested relief. Under COHE's rationale, should the Regents have been unsuccessful at this hearing, the Regents would have a further remedy at law in the form of an expedited appeal pursuant to SDCL 15-26A-2.

This argument is fallacious. On June 9, 1988, the Regents filed their motion to quash the circuit court's alternative writ. This raised the very issue that is now before this court, that is, whether the circuit court lacked subject matter jurisdiction because COHE failed to exhaust its administrative remedies without meeting any of the exceptions to the exhaustion requirement. When the circuit court ruled on June 16, 1988, that it had jurisdiction to issue the alternative writ, it, in essence, decided that COHE was not required to exhaust its administrative remedies as COHE had met an exception to the exhaustion requirement.

Also, since the procedures set forth above never occurred due to this court's alternative writ against the circuit court, the amount of time taken for the circuit court to decide the case on the merits followed by a request for an expedited appeal is unknown. It may have very well run into the upcoming school year. Suffice it to say that it would have involved more time than the procedure the Regents chose to follow in securing this court's issuance of a writ of prohibition.

COHE also argues that the Regents had an alternative legal remedy in an expedited discretionary appeal to this court prior to the July 5 circuit court hearing. However, prior to an adjudication of the merits of the case by the circuit court, the Regents had no absolute right of appeal of the circuit court's alternative writ or its decision as to subject matter jurisdiction under SDCL 15-26A-3. See Blood v. Spring Creek School District, 77 S.D. 48, 84 N.W.2d 729 (1957).

A writ of prohibition cannot be invoked merely as a substitute for an appeal. Nelson v. Dickenson, 64 S.D. 456, 268 N.W. 103 (1936). In Nelson we stated:

[P]rohibition will lie when the inferior court is without jurisdiction of the subject-matter, or of the parties, or is exceeding its jurisdiction in the particular case.... If the solution of the question depended upon ascertaining disputed facts, the decision of the circuit court thereon would, we think, be binding until reversed upon appeal. But where, as here, the facts are substantially without dispute and the question is primarily a legal one, we believe prohibition should lie if this court entertains the opinion that the circuit court erroneously decided as a matter of law that it had jurisdiction.

64 S.D. at 459, 268 N.W. at 104.

We conclude that the Regents had no plain, speedy and adequate...