Tornow v. Sioux Falls Civil Serv. Bd., No. 26352.

• Court: Supreme Court of South Dakota
• Writing for the Court: SEVERSON
• Citation: 2013 S.D. 20,827 N.W.2d 852
• Docket Number: No. 26352.
• Decision Date: 09 April 2013
• Parties: R. Shawn TORNOW, Applicant and Appellant, v. SIOUX FALLS CIVIL SERVICE BOARD and Bill O'Toole, Civil Service Board Secretary, Respondents and Appellees.

827 N.W.2d 852
2013 S.D. 20

R. Shawn TORNOW, Applicant and Appellant,
v.
SIOUX FALLS CIVIL SERVICE BOARD and Bill O'Toole, Civil Service Board Secretary, Respondents and Appellees.

No. 26352.

Supreme Court of South Dakota.

Considered on Briefs Jan. 8, 2013.
Decided Feb. 27, 2013.
Rehearing Denied April 9, 2013.

[827 N.W.2d 854]

Timothy R. Whalen of Lake Andes, South Dakota, Attorney for applicant and appellant.

Lisa Hansen Marso of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for respondents and appellees.

SEVERSON, Justice.

[¶ 1.] R. Shawn Tornow worked for the City of Sioux Falls as an Assistant City Attorney. On August 27, 2010, he was terminated for violating various subsections of Sioux Falls City Ordinance 30–46. Tornow appealed the termination, and applied for an alternative writ of mandamus to compel discovery of certain documents including personnel records of other city employees. Ultimately, the trial court denied the writ of mandamus because Tornow did not prove the existence of a clear legal duty to act. Tornow appeals, arguing that (1) the trial judge did not have jurisdiction to preside over the writ of mandamus; (2) the trial court abused its discretion in denying the writ of mandamus; and (3) the trial court abused its discretion in denying his motion for a new trial. We affirm the trial court.

BACKGROUND

[¶ 2.] R. Shawn Tornow was employed as an Assistant City Attorney for the City of Sioux Falls from March 1995 until August 27, 2010. The City terminated Tornow's employment on August 27, 2010. The City determined that Tornow was guilty of misconduct because he violated six specific subsections of Sioux Falls City Ordinance 30–46,¹ which governs causes for employee demotion, discharge, and suspension.

[¶ 3.] On August 30, 2010, Tornow filed written notice that he would appeal his termination to the City of Sioux Falls Civil Service Board. The Civil Service Board conducts hearings and makes determinations when civil service employees appeal terminations or disciplinary action from City management. After receiving Tornow's appeal notice, the Civil Service Board set an appeal hearing date, which was later postponed,² and provided notice to Tornow of the members of the Board who would hear his appeal. Tornow objected to the appointment of members proposed by the Civil Service Board to hear his appeal.

[¶ 4.] In January 2011, Judge William J. Srstka granted Tornow an alternative writ of prohibition to contest the panel of members proposed by the Civil Service Board and issues relating to Board counsel. This writ action was given case number 11–25. It was assigned a judge, but there were various requests for changes of judges, including requests by Tornow. Second Circuit Presiding Judge Kathleen Caldwell requested that South Dakota Supreme Court Chief Justice David Gilbertson appoint a judge to hear the case. Ultimately, Chief Justice Gilbertson assigned

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Retired Justice Robert A. Miller to act as a circuit judge in the matter.

[¶ 5.] Acting Circuit Judge Miller held a hearing on Tornow's writ, case number 11–25, on July 21, 2011. On August 9, 2011, Judge Miller entered findings of fact and conclusions of law on the writ.³

[¶ 6.] On August 2, 2011, after the hearing, but before the entry of findings of fact and conclusions of law on the 11–25 writ, Tornow applied for an alternative writ of mandamus related to several discovery requests. Judge Srstka again granted the writ, which was assigned case number 11–2481. On August 15, 2011, Presiding Judge Caldwell entered an order assigning the case to Acting Circuit Judge Miller. On August 19, 2011, Chief Justice Gilbertson again appointed Judge Miller to hear the case because all of the Second Circuit judges were disqualified or unable to act in the matter. Tornow contested Judge Miller's appointment, but Chief Justice Gilbertson determined that there was no mechanism to request recusal of a judge appointed by the Chief Justice. Chief Justice Gilbertson denied Tornow's request.

[¶ 7.] Judge Miller held a hearing on the 11–2481 writ on December 13, 2011. The hearing included testimony from Tornow and arguments regarding whether certain personnel files of other city employees were subject to discovery. Following the hearing, Judge Miller reviewed the personnel files that Tornow requested and determined that the files were not relevant to Tornow's appeal of his termination. In February 2012, Judge Miller ordered that the personnel files were not subject to discovery. On March 15, 2012, Judge Miller issued a memorandum decision regarding the personnel files and the writ of mandamus, but did not enter formal findings of fact and conclusions of law.

[¶ 8.] On March 19, 2012, Tornow filed a motion for a new trial. On April 3, 2012, Judge Miller denied the motion for a new trial and entered findings of fact and conclusions of law regarding the personnel files and writ of mandamus, findings of fact and conclusions of law regarding the motion for a new trial, and an order and judgment denying the writ.

[¶ 9.] Tornow appeals. He argues that (1) the trial judge did not have jurisdiction to preside over the writ of mandamus in case number 11–2481; (2) the trial court abused its discretion in denying the writ of mandamus; and (3) the trial court abused its discretion in denying his motion for a new trial. Tornow did not appeal any issues regarding the writ of prohibition in case number 11–25.

STANDARD OF REVIEW

[¶ 10.] We review issues of jurisdiction de novo because they are questions of law. Knapp v. Hamm & Phillips Serv. Co., 2012 S.D. 82, ¶ 11, 824 N.W.2d 785, 788 (citing Martin v. Am. Colloid Co., 2011 S.D. 57, ¶ 8, 804 N.W.2d 65, 67). We review “ ‘the decision to grant or deny a writ of mandamus under an abuse of discretion standard.’ ” Krsnak v. S.D. Dep't of Env't & Natural Res., 2012 S.D. 89, ¶ 8, 824 N.W.2d 429, 433 (quoting Grant Cnty. Concerned Citizens v. Grant Cnty. Bd. of Comm'rs, 2011 S.D. 5, ¶ 6, 794 N.W.2d 462, 464). “ ‘An abuse of discretion refers to a

[827 N.W.2d 856]

discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.’ ” Argus Leader v. Hagen, 2007 S.D. 96, ¶ 7, 739 N.W.2d 475, 478 (quoting Schafer v. Deuel Cnty. Bd. of Comm'rs, 2006 S.D. 106, ¶ 4, 725 N.W.2d 241, 243). “Further, ‘statutory interpretation and application are questions of law that we review de novo.’ ” Krsnak, 2012 S.D. 89, ¶ 8, 824 N.W.2d at 433 (quoting State v. Goulding, 2011 S.D. 25, ¶ 5, 799 N.W.2d 412, 414). Finally, “ ‘[t]he decision to grant a new trial is left in the sound judicial discretion of the trial court and the decision will not be disturbed absent a clear showing of abuse of discretion.’ ” Surgical Inst. of S.D., P.C. v. Sorrell, 2012 S.D. 48, ¶ 9, 816 N.W.2d 133, 136–37 (quoting Onnen v. Sioux Falls Indep. Sch. Dist. No. 49–5, 2011 S.D. 45, ¶ 18, 801 N.W.2d 752, 757).

DISCUSSION

[¶ 11.] 1. Whether the trial judge had jurisdiction to preside over the writ of mandamus in case number 11–2481.

[¶ 12.] There are various rules for assigning a judge to hear a case when other judges recuse themselves. The South Dakota Constitution authorizes the Chief Justice of the South Dakota Supreme Court to assign current...