Anderson v. Western Dakota Insurors , 1986 S.D. LEXIS 317 ( 1986 )

HENDERSON, Justice

(specially concurring).

Not desiring to moor myself to sentence-structure or conceptual misinterpretation in the future; believing, also, that the majority writing might possibly unsettle the settled and muddy our oft-announced administrative scope of review, I respectfully specially concur.

In administrative cases where the circuit court merely reviews the agency record and takes no new evidence, our scope of review is clear.

[O]ur review is of the decision of the administrative agency and our standard is the clearly erroneous standard. If the circuit court reversed the agency’s decision, and “[i]f after review of the evidence we deem the agency findings clearly erroneous, we affirm the circuit court. If the agency findings are not clearly erroneous, then the circuit court was clearly erroneous in so concluding.” State, Div. of Human Rights v. Miller, 349 N.W.2d 42, 46 n. 2 (S.D.1984).

Kienast v. Sioux Valley Co-op, 371 N.W.2d 337, 339 (S.D.1985).

Likewise, if the circuit court affirmed the agency’s decision, and if after review of the evidence we deem the agency findings clearly erroneous, we reverse the circuit court. If the agency findings are not clearly erroneous, then the circuit court was not clearly erroneous in so concluding. See Application of Northwestern Bell Tel. Co., 382 N.W.2d 413, 415-16 (S.D.1986); South Dakota Wildlife Federation v. Water Management Bd., 382 N.W.2d 26, 29-30 (S.D.1986); Stavig v. South Dakota Highway Patrol, 371 N.W.2d 166, 168 (S.D.1985); Erickson v. Minnesota Gas Co., 358 N.W.2d 526, 528 (S.D.1984); and Matter of South Dakota Water Management Bd., 351 N.W.2d 119, 122 (S.D.1984).

Lastly, there is a different rule on evidence if submitted by deposition. See Clark & Son v. Nold, 85 S.D. 468, 474, 185 N.W.2d 677, 680 (1971). Obviously, where a deponent has not appeared before a lower court when testifying, the members of this Court can review a deponent’s testimony as though it were presented to us initially. In such latter instance, the clearly erroneous rule as specified in SDCL 15-6-52(a) is inapplicable.