South Dakota Educ. Association/NEA By and Through Roberts v. Barnett

• Decision Date: 29 July 1998
• Docket Number: No. 20499,20499
• Citation: 582 N.W.2d 386,1998 SD 84
• Parties: 159 L.R.R.M. (BNA) 2818, 128 Ed. Law Rep. 350, 1998 SD 84 SOUTH DAKOTA EDUCATION ASSOCIATION/ NEA, By and Through its President, Elaine ROBERTS; and South Dakota Education Association Council On Higher Education, By and Through its President James Zeman; Lona Lewis; Barb Peterson; Jerry Sweeney; Lela Holcomb; Henry Linares; David Boyles; Kathleen Parrow; Julie Smith; Curtis Olson; Diane Kummer; And Robert Stevens, Petitioners, v. Mark BARNETT, Attorney General of South Dakota in his Official Capacity; The South Dakota Board of Regents; and Robert T. Tad Perry, its Executive Director, Respondents.
• Court: South Dakota Supreme Court

Page 386

582 N.W.2d 386

159 L.R.R.M. (BNA) 2818, 128 Ed. Law Rep.

350, 1998 SD 84

SOUTH DAKOTA EDUCATION ASSOCIATION/ NEA, By and Through its

President, Elaine ROBERTS; and South Dakota Education

Association Council On Higher Education, By and Through its

President James Zeman; Lona Lewis; Barb Peterson; Jerry

Sweeney; Lela Holcomb; Henry Linares; David Boyles;

Kathleen Parrow; Julie Smith; Curtis Olson; Diane Kummer; And Robert Stevens, Petitioners, v. Mark BARNETT, Attorney General of South Dakota in his

Official Capacity; The South Dakota Board of

Regents; and Robert T. Tad Perry, its

Executive Director, Respondents.

No. 20499.

Supreme Court of South Dakota.

Argued June 3, 1998.

Decided July 29, 1998.

Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for petitioners.

Mark Barnett, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, James F. Shekleton, General Counsel, Pierre, for respondents.

MILLER, Chief Justice.

¶1 The South Dakota Education Association and its Council on Higher Education (COHE) challenge the constitutionality of the general appropriations bill adopted by the 1998 Legislature. They seek a peremptory writ of prohibition ordering the South Dakota Board of Regents to cease implementing portions of the 1998 appropriations bill concerning salary increases for certain Regents' employees.

FACTS

¶2 COHE is an affiliate of the South Dakota Education Association. Its membership consists of certain public employees who teach at the State's universities and other special schools under the Regents' control. COHE is the recognized bargaining representative for these educators under South Dakota's public employee collective bargaining law. See SDCL ch. 3-18.

¶3 While COHE asserts it annually enters into collective bargaining with the Regents, the Regents outline a more detailed history of the relationship. The Regents assert a multi-year master agreement with COHE expired on June 30, 1996 and that since that time the two entities have continued to bargain collectively in pursuit of a new agreement. Both COHE and the Regents agree that, after an impasse in the spring of 1997, the Regents unilaterally imposed interim terms and conditions of employment consisting of terms from both the expired agreement and the Regents' last best offer. While the Regents concede most of these interim terms remain in effect, they assert those concerning the distribution of salary increases do not. In that regard, the Regents contend they reached a limited agreement with COHE governing distribution of salary increases for fiscal year 1998, but that the agreement was not intended to apply to moneys appropriated for salary increases for fiscal year 1999. The Regents affirmatively assert that before the 1998 legislative session they resumed active negotiations with COHE on distribution of salary increases for fiscal year 1999, but that no agreement or understanding in that regard was reached.

¶4 During the 1998 legislative session, the Legislature passed Senate Bill 242 (SB 242), the general appropriations bill. The bill contained an appropriation for salary increases for the Regents' employees. ¹ Section 31 of SB 242 provides:

It is the intent of this Act that the distribution of salary increases to non-CSA employees ² of the Board of Regents be made in a manner to be determined at the sole discretion of the Board of Regents, any other provisions of chapter 3-18 notwithstanding. (footnote added).

¶5 After passage of the appropriations bill, the Regents apparently took the position they were not required to engage in any further negotiations with COHE on the issue of distribution of salary increases. The agenda for a Regents' meeting in late March 1998 reflects this view:

Through language incorporated in the general appropriations bill, the Legislature directed that "the distribution of salary increases to non-CSA employees of the Board of Regents be made in a manner to be determined at the sole discretion of the Board of Regents." Through this language, the Legislature mandated that general fund appropriated dollars, tuition, other and federal funded dollars authorized through the appropriations bill should not be subject to the state's other laws governing state employee collective bargaining. The Legislature's intent was that the salary increases awarded to the Board's faculty and non-faculty exempt employees should be made based on market conditions, merit and performance. Normally, the Board would be constrained by South Dakota's collective bargaining laws and would be required to engage in negotiations with the Board's faculty union, the Council of Higher Education (COHE), before distributing unit faculty salary increases. The Board's General Counsel, Dr. Shekleton, advises that this language frees the Board from that requirement.

* * * * * *

In its May meeting, the Board has traditionally acted on each campus' recommended faculty and non-faculty exempt salary increases. The campuses will soon begin their internal reviews, market comparisons, and compiling their recommendations. To assist the campuses in that process, to provide guidance, and to ensure that the Board of Regents system allocates those increases consistent with the intent of the Legislature, the Executive Director recommends that the Board provide firm guidelines to the campuses as to how they are to construct their recommended increases. A recommended set of guidelines can be found in Attachment I. (emphasis added).

Attached to the March meeting agenda was a set of comprehensive guidelines for distribution of salary increases based upon market conditions and employee merit. COHE's president alleges that when he requested that the Regents come to the table and negotiate on salaries, it refused to do so based upon the new language of the 1998 appropriations bill and the above interpretation thereof.

¶6 As the dispute over the negotiability of salary increases went unresolved, the time for the Regents' May meeting approached. The Regents' normal practice at the May meeting is to offer individual contracts to their instructors who then normally have only twenty days to sign and return the contracts or lose their employment. COHE expected the Regents to offer individual contracts at the May meeting with salaries and raises unilaterally established according to the guidelines adopted pursuant to the new language in the 1998 appropriations bill. Accordingly, COHE sought this Court's writ of prohibition to prevent the Regents from implementing the new legislation through issuance of individual teaching contracts. The requested writ was grounded on numerous issues alleging the invalidity of the new legislation. This Court granted an alternative writ and set a briefing schedule and date for oral argument why the alternative writ should not be made peremptory. In the interim, the parties stipulated to our entry of an order permitting the Regents to issue contracts based upon current salaries, terms and conditions of employment subject to our final decision in this matter.

ISSUE ONE

¶7 Does this Court have jurisdiction to issue the writ?

¶8 "A writ of prohibition is an extraordinary remedy," South Dakota Bd. of Regents v. Heege, 428 N.W.2d 535, 537 (S.D.1988), and it may be issued only where the applicant has no, "plain, speedy, and adequate remedy in the ordinary course of law." SDCL 21-30-2. See also Heege, supra. In Heege, this Court held a circuit court had no jurisdiction to issue a writ of prohibition based on the Regents' alleged unfair labor practices because COHE failed to exhaust available administrative remedies. Because of some similarities between Heege and this case, we directed the parties to brief the issue of the availability to COHE of a "plain, speedy, and adequate remedy in the ordinary course of law."

¶9 Given the primacy of the constitutional issues presented here, we conclude Heege is distinguishable and that this Court does have jurisdiction to consider issuance of a writ of prohibition in this matter. While the presence of constitutional questions is not alone sufficient to defeat the principle of exhaustion of administrative remedies followed in Heege, the exhaustion requirement must be considered in light of the claims involved in the case. As explained in Gottschalk v. Hegg, 89 S.D. 89, 93, 228 N.W.2d 640, 642 (1975):

" 'Exhaustion' applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. 'Primary jurisdiction,' on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." United States v. Western P. R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126, 132.

¶10 Here, in contrast with Heege, there are no claims of unfair labor practices that require resort to an administrative process. Rather, all of the claims concern implementation of an allegedly unconstitutional legislative act that may affect the collective bargaining rights of certain individuals. We conclude that neither principles of exhaustion nor primary jurisdiction require this Court's deference to an administrative proceeding and that COHE has no other plain, speedy or adequate remedy in the ordinary course of law.

ISSUE TWO

¶11 Does section 31 of the 1998 general appropriations bill (SB 242) violate article XII, section 2 of the South Dakota Constitution?

¶12 Article XII, section 2 of the South Dakota Constitution specifies what may be included in the general appropriations bill. It provides:

The general appropriation bill shall embrace nothing but...