State Dept. of Public Safety v. Cronin

• Decision Date: 17 February 1977
• Docket Number: 11955,Nos. 11954,s. 11954
• Parties: STATE of South Dakota, DEPARTMENT OF PUBLIC SAFETY, Plaintiff and Respondent, v. Thomas F. CRONIN and Gordon Eastman, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 690

250 N.W.2d 690

STATE of South Dakota, DEPARTMENT OF PUBLIC SAFETY, Plaintiff and Respondent, v. Thomas F. CRONIN and Gordon Eastman, Defendants and Appellants.

Nos. 11954, 11955.

Supreme Court of South Dakota.

Argued Jan. 11, 1977.

Decided Feb. 17, 1977.

Judith Atkinson, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on brief.

Dana, Golden, Moore & Rasmussen, and Timothy J. McGreevy, Sioux Falls, for defendants and appellants.

MORGAN, Justice.

In each case the defendant was involved with the Sioux Falls Police Department on a charge of DWI. For whatever reason, each refused to submit to the chemical blood analysis after the arresting officer had read him his rights from a standard form card, the contents of which substantially comply with the warning requirements of SDCL 32--23--11. Upon subsequent notification of intent to revoke, each petitioned for hearing before a department hearing officer. The officer's decision in both cases was adverse as evidenced by his entry of orders of revocation.

At this point in the respective procedures, each of the defendants, by their counsel, filed Notice of Appeal to the Circuit Court of Minnehaha County, which Notice of Appeal specified as follows:

'This appeal is made under section SDCL 1967 21--33--1. This appeal is not an appeal from a trial de novo under section SDCL 32--23--12.'

The Cronin Appeal was filed on April 18, 1975 and the Eastman Appeal on May 29, 1975.

The Attorney General's Office responded in each case with a motion to dismiss the appeal. The motions were not brought on for hearing until December 2, 1975 and the circuit court subsequently entered its Orders of Dismissal. These appeals result and because the issues are identical they were joined for argument.

The question posed by the briefs is whether the provisions of SDCL 21--33--1 and SDCL 32--23--12 are compatible and appellant has a choice of routes, or whether the provisions are incompatible and appellant is restricted to an appeal with a trial de novo.

The appropriate portions of the statutes in controversy that were in effect at the time the appeal was initiated in circuit court are as follows:

'32--23--12 Court review of revocation--Procedure--Trial de novo.--Any person whose license has been canceled, suspended, or revoked by the department of public safety under the provisions of § 32--23--11 shall have the right to file a petition within thirty days thereafter for a hearing in the matter in the circuit court for the county wherein such person was charged with the violation, and such court is hereby vested with jurisdiction and it shall be its duty to set the matter for trial de novo upon ten days' written notice to the department, and thereupon to take testimony and examine into the facts of the case and to determine whether the petitioner's license is subject to cancellation, suspension, or revocation under the provisions of § 32--23--11.'

'21--33--1 Appeals to which chapter applicable--Inconsistent special provisions govern.--In all cases where an appeal is allowed by law from a decision, ruling, or action of any state department, commission, bureau, board, or officer, such appeal shall be taken and conducted pursuant to the provisions of this chapter ¹ * * * The provisions of this chapter shall not apply in any instance where inconsistent provisions are elsewhere in this code specifically made.'

Chapter 8 of the Session Laws of 1972, amending Chapter 21--33 SDCL, provided that wherever reference is made in the statutes to SDCL 1--26 or SDCL 21--33, or both, relating to procedure in appeals from an administrative agency, it shall be construed to include references to both.

The appeal provision of Chapter 1--26 hereinabove referred to is found at § 30 thereof and provides:

'1--26--30 Right to judicial review of contested cases--Preliminary agency actions.--A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter and under procedures set forth in chapter 21--33. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law * * *'

The advent of the administrative appeals in South Dakota appears to have commenced in 1917 when the legislature, in adopting a workmen's compensation statute, Chapter 376 of the Session Laws of 1917, gave the Industrial Commissioner and the Insurance Commissioner, jointly or severally, administrative hearing authorities, and provided for appeals to the circuit court. The Supreme Court of this state on October 5, 1917, adopted the rules and regulations governing the taking and prosecuting of appeals to the circuit court under the provisions of the workmen's compensation law which rules were effective on October 1, 1917. These rules were somewhat modified and reenacted by the Court by Order dated March 12, 1919, effective July 1, 1919, and which reflected some changes due to amendment of the workmen's compensation law by the 1919 Legislature. The 1939 Supreme Court Rule, codified as SDC Chapter 33.42, expanded the previous appellate procedures from 'Appeals from Decisions of the Insurance Commissioner and Industrial Commissioner' to 'Appeals from Quasijudicial Decisions by State Departments and Officers.' Under the 1967 compilation this chapter was compiled as SDCL 1967 Chapter 21--33--Appeals from Administrative Agencies.

In the enactment of the Code of 1939 the legislature included section 65.0106--Rules and regulations of state departments; commissions; boards; officers: method of adoption and promulgation; effective dates; distribution. It also enacted section 55.1203--Rules and regulations: state officers, departments, and commissions; official filing source; duties. This latter enactment constituted the Secretary of State as the official filing source. Both of these 1939 enactments were repealed by the provisions of Chapter 159 of the 1966 Session Laws, An Act Entitled, An Act concerning procedure of state administrative agencies and review of their determination, and being generally denominated as a comprehensive law relating to rules and enforcement of determinations of state agencies and review thereof. This Act, generically described as an administrative procedures act, was later compiled in the 1967 compilation as SDCL 1967 Chapter 1--26 Administrative Procedure and Rules.

The original Implied Consent Law found at Chapter 264 of the Session Laws of 1959 provided for a suspension of license by the commissioner upon notification that a driver had refused to submit to the chemical analysis. The statute further provided that the driver had the right to petition the circuit court for hearing after such revocation and vested the court with the jurisdiction and imposed on it the duty to set the matter for trial de novo. This statute as originally enacted did not provide for an administrative hearing prior to revocation of a license. This was one of the defects noted by the three-judge panel in the case of Holland v. Parker, 1973, D.C.S.D., 354 F.Supp. 196, which court held the implied consent statute unconstitutional.

Subsequent to that decision, the 1973 Legislature, proded by the Holland decision, by adoption of Chapter 195 amended § 32--23--11 by interposing the right of a pre-revocation hearing 'pursuant to Chapter 1--26 if hearing is demanded'.

Section 32--23--11 was again amended by Chapter 199 of the 1976 Session Laws, which amendment clarified the language of the pre-revocation hearing requirement and liberalized to some extent the revocation provision by allowing the commissioner to permit driving under restrictions.

While the portion of the Implied Consent Law dealing with the commission's portion of the revocation procedures underwent great change, the provision regarding the court review remained identical. Nor did the Federal Court in Holland v. Parker, supra, make any mention of the provisions for judicial review.

Up to this point the legislatures in enacting the Administrative Procedure Acts and the various amendments had specifically provided that such procedures were not limitations on utilization of or scope of judicial review available under other means. The Implied Consent Law from its inception demonstrated an intention on the part of the legislature to enact a specific statutory means for judicial review, so much so that the original enactment which has never been changed in that respect grants the circuit court jurisdiction and imposes a duty to set the matter for trial de novo.

Appellant having rejected the § 32--23--12 trial de novo appeal, the circuit court apparently felt that there was no choice but to dismiss his purported appeal. Under the state of the law as it was prior to the 1975 amendment, this writer would agree that the circuit judge's decision was correct. However, I feel that the enactment of Chapter 17 of the Session Laws of 1975 completely and effectively repealed the special provisions of § 32--23--12 with respect to the mode and method of the appeal.

That chapter, in addition to repealing the balance of SDCL Chapter 21--33 not previously repealed by the 1972 enactment, made substantial changes in SDCL Chapter 1--26 which this writer feels are significant with respect to the question before us. Section 1 provided for an appeal in the circuit court to any party in a contested case from a final decision, ruling or action of an agency. The state concedes in its brief and oral argument that the decision appealed from to the circuit court was a final decision of an agency. This section is now codified as SDCL 1--26--30.2. Section 2 of the 1975 Session Law provided that notwithstanding any other provision of law, all appeals authorized by § 1--26--30.1 or § 1 of this act shall be taken and conducted pursuant to...