Tornow v. Sioux Falls Civil Service Board , 2013 S.D. LEXIS 20 ( 2013 )

#26352-a-GAS
2013 S.D. 20IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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R. SHAWN TORNOW, Applicant and Appellant,
v.
SIOUX FALLS CIVIL SERVICE
BOARD and BILL O’TOOLE,
CIVIL SERVICE BOARD SECRETARY, Respondents and Appellees.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE ROBERT A. MILLER
Justice (Retired), sitting as a circuit court judge
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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.
****
CONSIDERED ON BRIEFS
ON JANUARY 8, 2013
OPINION FILED 02/27/13
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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
1. Since Tornow’s termination, the City has updated and renumbered its
ordinances. Sioux Falls City Ordinance 30-46 is now Sioux Falls Code of
Ordinances § 39.059.
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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 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
2. Due to procedural delays and appeals, including the two writ actions and this
appeal by Tornow, the Civil Service Board has not conducted an appeal
hearing for Tornow’s August 27, 2010 termination.
3. The record does not contain a copy of the writ of prohibition, the order, or
findings of fact and conclusions of law for case number 11-25. Neither party
states whether the writ was ultimately granted or denied.
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[¶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
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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 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.’”
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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 or retired justices to
sit as judges in circuit courts around the state. S.D. Const. art. V, § 11. The
Supreme Court has adopted procedural court rules for the Chief Justice to make an
appointment when all available judges in a circuit recuse themselves from a case.
See SDCL 15-12-34 and SDCL 15-12-35. A party to an action may request a judge
disqualify himself or herself by filing an affidavit. SDCL 15-12-22. If “all the
judges of the circuit are disqualified or are unable to act in such action, the
presiding judge of the circuit” will file an order to that effect and request that the
Supreme Court assign another judge. See SDCL 15-12-34. When the presiding
judge files an order with the clerk of courts that “all of the judges of the circuit are
disqualified or are unable to act[,]” the clerk of courts will forward the following to
the clerk of the Supreme Court:
(1) A certified copy of the affidavit for change of judge;
(2) A certified copy of the order of the presiding judge
determining that all the judges of [the] circuit are
disqualified or unable to act; and
(3) A signed statement in duplicate showing the title of the
action, the name and address of each attorney of record
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therein, the date of filing of such affidavit, the general nature
of the action and the status thereof.
Id. Once the clerk of the Supreme Court receives the documents required by SDCL
15-12-34, the Chief Justice assigns another “judge to preside in such action by filing
an order with the clerk of the Supreme Court, and from the filing of such order the
judge therein designated shall have full power, authority, and jurisdiction to
proceed in said action.” SDCL 15-12-35. Once a judge is assigned by the Chief
Justice, there is no recusal process for the judge on assignment under article V, § 11
of the South Dakota Constitution.
[¶13.] Tornow filed an affidavit requesting a change of judge after Judge
Miller was assigned by Chief Justice Gilbertson to hear the 11-2481 writ of
mandamus. Judge Miller was previously assigned by Chief Justice Gilbertson to
hear the 11-25 writ of prohibition after Presiding Judge Caldwell determined that
all of the Second Circuit judges were disqualified from the matter. There was some
confusion as Tornow filed two alternative writ actions. Both the 11-25 and 11-2481
writs were filed as part of the same underlying action, which was Tornow’s appeal
of his employment termination to the City of Sioux Falls Civil Service Board. Both
of the writ proceedings included the same parties. Tornow does not contest the
original assignment of Judge Miller. Instead, he argues that the procedures under
SDCL 15-12-34 were not followed for the 11-2481 writ of mandamus, and thus,
Judge Miller could not exercise jurisdiction over the second writ.
[¶14.] On August 15, 2011, Presiding Judge Caldwell entered an order on the
request for a writ of mandamus, assigned case number 11-2481, to Judge Miller.
Although technically she did not use the procedures outlined in SDCL 15-12-34,
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jurisdiction is not affected. On August 19, 2011, Chief Justice Gilbertson entered
an order appointing Judge Miller to hear the case, and his action is determinative.
Because Judge Miller was assigned the case by Chief Justice Gilbertson, according
to SDCL 15-12-35 and under the authority of article V, § 11 of the South Dakota
Constitution, there is no mechanism for Tornow to appeal the assignment of Judge
Miller. Judge Miller was properly assigned to hear the writ of mandamus in case
number 11-2481.
[¶15.] 2. Whether the trial court abused its discretion in denying
the writ of mandamus.
[¶16.] A trial court may “issue a writ of mandamus where no ‘plain, speedy,
and adequate remedy [exists] in the ordinary course of law.’” Krsnak, 2012 S.D. 89,
¶ 9, 824 N.W.2d at 433-34 (alteration in original) (quoting SDCL 21-29-2). See also
SDCL 21-29-1. “‘A writ of mandamus is an extraordinary remedy that will issue
only when the duty to act is clear.’” Krsnak, 2012 S.D. 89, ¶ 9, 824 N.W.2d at 434
(quoting Woodruff v. Hand Cnty. Bd. of Comm’rs, 2007 S.D. 113, ¶ 3, 741 N.W.2d
746, 747). A writ of “[m]andamus can only issue when the duty to act is
unequivocal.” Atkinson v. City of Pierre, 2005 S.D. 114, ¶ 26, 706 N.W.2d 791, 799
(citing Black Hills Cent. R.R. Co. v. City of Hill City, 2003 S.D. 152, ¶ 13, 674
N.W.2d 31, 34). “‘It commands the fulfillment of an existing legal duty, but creates
no duty itself, and acts upon no doubtful or unsettled right.’” Id. (quoting Sorrels v.
Queen of Peace Hosp., 1998 S.D. 12, ¶ 6, 575 N.W.2d 240, 242). Further, a writ of
mandamus is used to “‘compel ministerial duties, not discretionary duties.’”
Krsnak, 2012 S.D. 89, ¶ 10, 824 N.W.2d at 434 (quoting Sorensen v. Sommervold,
2005 S.D. 33, ¶ 9, 694 N.W.2d 266, 269).
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[¶17.] There is no clear legal duty to act in this case. In his findings of fact
and conclusions of law, Judge Miller determined that Tornow needed to
demonstrate the Civil Service Board had a clear legal duty to act, and Tornow did
not sustain his burden by proving that the Board had a clear legal duty to act. In
this appeal, Tornow again failed to demonstrate that the Civil Service Board has a
legal obligation to release certain personnel records in response to a discovery
request. Tornow argues that Sioux Falls Ordinance 30-49, which governs the Civil
Service Board’s appeals hearing, requires discovery. However, this ordinance does
not require that the Civil Service Board issue subpoenas and request documents.
The ordinance merely gives the Civil Service Board the discretion to use these tools
in conducting its proceedings. Further, the Civil Service Board’s appeal rules state
that “[a]ny relevant evidence may be admitted except where precluded by statute if
it is of a type commonly relied upon by reasonably prudent persons in the conduct of
their affairs.” City of Sioux Falls, Rules of the Civil Service Board, Rule 7(c)(II)—
Rights of the Parties (May 2004) (emphasis added). This rule requires that
evidence be relevant to be admitted. The determination of relevancy of evidence is a
discretionary act of the Civil Service Board, not a mandatory, legal obligation.
Judge Miller reviewed in camera the personnel records Tornow requested and he
determined that the records were not relevant to Tornow’s termination appeal. The
Civil Service Board’s rules allow discretion in discovery and do not constitute a
ministerial duty. Thus, Tornow’s writ of mandamus fails because it does not compel
the fulfillment of a clear legal duty.
[¶18.] 3. Whether the trial court abused its discretion in denying
Tornow’s motion for a new trial.
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[¶19.] South Dakota law allows for a party to move for a new trial based on a
number of causes. See SDCL 15-6-59(a). Tornow moved for a new trial based on
SDCL 15-6-59(a)(1) and (6). Section 15-6-59(a)(1) allows for a new trial based on
“[i]rregularity in the proceedings of the court, jury, or adverse party or any order of
the court or abuse of discretion by which either party was prevented from having a
fair trial[.]” Section 15-6-59(a)(6) allows for a new trial based on “[i]nsufficiency of
the evidence to justify the verdict or other decision or that it is against law[.]”
[¶20.] Tornow argues that Judge Miller’s February 8, 2012 order denying
discovery of personnel records was an irregularity in the proceedings because Judge
Miller did not enter formal findings of fact and conclusions of law as part of that
order. Tornow points to SDCL 15-6-52(a), which requires that a judge enter oral or
written findings of fact and conclusions of law, which may be an opinion or a
memorandum of decision. However, SDCL 15-6-52(a) does not require that judges
enter separate documentation of formal findings of fact and conclusions of law for
every motion in an action. In this case, Judge Miller wrote and filed with the court
and counsel a memorandum dated March 15, 2012 explaining his decision to deny
the writ of mandamus and not allow discovery of the personnel files. Then, Judge
Miller waited to enter formal findings of fact and conclusions of law on all of the
issues and motions in the case until he had received and considered Tornow’s
motion for a new trial. The memorandum decision dated March 15, 2012 and
formal findings of fact and conclusions of law dated April 2, 2012 were timely and
appropriately entered.
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[¶21.] In addition, after reviewing the personnel records, Judge Miller made
specific findings that there was no similarity of conduct between the records of
requested individuals and Tornow’s conduct; that the contents of the personnel files
were not relevant; and that Tornow did not prove that the contents of the personnel
files were discoverable. Judge Miller’s in camera review of the personnel records
was not an abuse of discretion because it protected the confidentiality of the persons
in the records and allowed Judge Miller to determine what, if any, information was
relevant to the case. Judge Miller’s review of the personnel records allowed him to
follow the standard for discovery motions that “the information sought is ‘relevant
to the subject matter involved in the pending action . . . .’” Kaarup v. St. Paul Fire
& Marine Ins. Co., 436 N.W.2d 17, 20 (S.D. 1989) (quoting SDCL 15-6-26(b)(1)).
[¶22.] Further, though Tornow moves for a new trial on the basis of
insufficiency of the evidence, he fails to “state the particulars wherein the evidence
is claimed to be insufficient[,]” as required by SDCL 15-6-59(a). As the record does
not specify which evidence is claimed to be insufficient, we cannot address this
issue.
[¶23.] Based on our review of the record, including Judge Miller’s formal
findings of fact and conclusions of law, there was no abuse of discretion in Judge
Miller’s ruling denying the motion for a new trial.
CONCLUSION
[¶24.] We affirm the trial court. Judge Miller properly exercised jurisdiction
over the writ of mandamus in case number 11-2481. The trial court did not abuse
its discretion by denying the writ of mandamus because Tornow did not prove the
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existence of a clear legal duty to act. Finally, the trial court did not abuse its
discretion by denying the motion for a new trial.
[¶25.] KONENKAMP, Acting Chief Justice, and ZINTER, and WILBUR,
Justices, and MANDEL, Circuit Court Judge, concur.
[¶26.] MANDEL, Circuit Court Judge, sitting for GILBERTSON, Chief
Justice, disqualified.
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