Petition for Declaratory Ruling ( 2016 )

#27463-rev & rem-SLZ
2016 S.D. 21
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
IN RE: PETITION FOR
DECLARATORY RULING
RE: SDCL 62-1-1(6)
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
****
THE HONORABLE MARK BARNETT
Judge
****
JAMES D. LEACH
Rapid City, South Dakota Attorney for petitioner
and appellant James D. Leach.
NAOMI R. CROMWELL of
Tieszen Law Office, LLC
Pierre, South Dakota Attorneys for appellee
Associated School Boards of
South Dakota.
MICHAEL S. MCKNIGHT
LAURA K. HENSLEY of
Boyce Law Firm, LLP
Sioux Falls, South Dakota Attorneys for appellees First
Dakota Indemnity and Dakota
Truck Underwriters.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 30, 2015
OPINION FILED 03/09/16
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ZINTER, Justice
[¶1.] Attorney James Leach petitioned the Department of Labor for a
declaratory ruling regarding the application of a statute. The statute governs the
“earnings” used to calculate the “average weekly wage” in workers’ compensation
cases. Leach contended that discretionary bonuses should be included in the
calculation. The Department ruled that only non-discretionary bonuses should be
included, and Leach appealed to circuit court. The court, sua sponte, dismissed the
appeal because it concluded that the Department lacked jurisdiction to issue such
rulings. Leach now appeals to this Court. We reverse and remand to consider the
appeal on the merits.
Facts and Procedural History
[¶2.] James Leach is a South Dakota attorney who, among other things,
represents clients in workers’ compensation cases. Settlement agreements in those
cases must be approved by the Department. Leach disagrees with the Department’s
interpretation of a statute under which the Department excludes discretionary
bonuses from the “earnings” used to calculate an injured worker’s “average weekly
wage.” 1 However, Leach has been unable to challenge the Department’s
interpretation in actual cases because employers moot the issue by stipulating to
include discretionary bonuses in the calculation. 2 Because this controversy is
recurring but evading judicial review, Leach petitioned the Department for a
1. The issue involves the definition of “earnings” in SDCL 62-1-1(6). SDCL 62-
1-1 defines terms used throughout the title on workers’ compensation.
2. The record suggests that the exclusion of discretionary bonuses may often
result in only a minor difference in benefits.
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declaratory ruling on the proper method of calculating average weekly wages under
the governing statute.
[¶3.] The Department accepted the petition and gave public notice of a
hearing to consider the question. Appellees, Associated School Boards of South
Dakota Workers’ Compensation Trust Fund and First Dakota Indemnity and
Dakota Truck Underwriters appeared in opposition to Leach’s interpretation of the
statute. 3 At the hearing, Leach presented argument supporting the inclusion of
discretionary bonuses in the calculation. Appellees argued against the inclusion.
The Department received evidence in the form of an affidavit from James Marsh,
the Director of the Division of Labor and Management within the Department of
Labor. Marsh indicated that a Department policy (based on an interpretation of the
statute) required employers and insurers to exclude discretionary bonuses from the
calculation. Marsh also indicated that the Department would not approve benefits
unless the employer followed its policy. Thus, the wage calculation issue arises
every time an injured worker, who has received a timely discretionary bonus,
receives disability benefits.
[¶4.] Following the hearing, the Department issued a declaratory ruling
that discretionary bonuses may not be included in the calculation. On appeal, the
circuit court, sua sponte, dismissed the appeal for lack of jurisdiction. The court
ruled that, in the absence of an actual case, the Department was without subject
matter jurisdiction to issue declaratory rulings. The court further concluded that
because the Department had no jurisdiction, the court had no jurisdiction to
3. Insurance Benefits Inc. also appeared.
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consider the appeal. Nevertheless, the court vacated the declaratory ruling in
addition to dismissing the appeal. Leach now appeals to this Court, raising the
question whether the Department had subject matter jurisdiction to issue the
declaratory ruling.
Decision
[¶5.] This case was resolved below by the circuit court’s determination that
the Department had no jurisdiction to entertain the declaratory ruling, and
therefore, the circuit court had no jurisdiction to entertain the appeal. If there was
no jurisdiction in the tribunals below, there is likely no jurisdiction to consider this
appeal. Therefore, we must first determine the jurisdiction of all three tribunals.
See Sioux City Boat Club v. Mulhall, 79 S.D. 668, 672, 117 N.W.2d 92, 94 (1962)
(“Where the want of jurisdiction appears on the face of the record or from a
geographical or other fact of which this [C]ourt may take judicial notice, it becomes
the duty of this [C]ourt to determine whether it has jurisdiction as a condition
precedent to its right to decide the issues involved.”).
[¶6.] The South Dakota Constitution delegates to the Legislature the
authority to determine this Court’s and the circuit court’s appellate jurisdiction.
“The Supreme Court shall have such appellate jurisdiction as may be provided by
the Legislature . . . . The circuit courts have such appellate jurisdiction as may be
provided by law.” S.D. Const. art. V, § 5. In 1966, the Legislature enacted three
jurisdictional statutes pertaining to proceedings under SDCL chapter 1-26, the
Administrative Procedure Act (APA). One governs jurisdiction of agencies to issue
declaratory rulings, one governs jurisdiction of the circuit courts to consider appeals
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of agency decisions, and one governs this Court’s jurisdiction to consider appeals
from the circuit courts on agency determinations. See 1966 S.D. Sess. Laws ch. 159,
§§ 8, 15, 16, which are codified at SDCL 1-26-15, SDCL 1-26-30, and SDCL 1-26-37
respectively. Thus, the jurisdictional questions in this case are matters of statutory
interpretation, a matter we review de novo. See Wheeler v. Cinna Bakers, LLC,
2015 S.D. 25, ¶ 4, 864 N.W.2d 17, 19.
Jurisdiction of Agencies to Issue Declaratory Rulings
[¶7.] The APA contains two statutes authorizing declaratory rulings. SDCL
1-26-15 authorizes declaratory rulings by agencies on statutes, rules, and agency
orders. And SDCL 1-26-14 authorizes declaratory rulings by circuit courts on
agency rules. Both provisions were taken almost verbatim from the Revised Model
State Administrative Procedure Act of 1961 (MSAPA). 4 See Revised Model State
Admin. Procedure Act §§ 7-8 (Unif. Law Comm’n 1961).
[¶8.] A comparison of the two statutes reveals a clear difference in the
standing required for persons requesting declaratory rulings from administrative
agencies and declaratory rulings from courts. To request a declaratory ruling from
a court, SDCL 1-26-14 requires an actual case or controversy. The plaintiff must
allege that the administrative “rule, or its threatened application, interferes with or
impairs, or threatens to interfere with or impair, the legal rights or privileges of the
plaintiff.” Id. In contrast, the Legislature excluded this actual case or controversy
language from the statute authorizing declaratory rulings by agencies. SDCL 1-26-
4. SDCL 1-26-14 is nearly identical to MSAPA § 7. SDCL 1-26-15 is nearly
identical to MSAPA § 8. The second and fourth sentences of SDCL 1-26-15
were added by the Legislature.
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15 requires agencies to adopt rules permitting anyone other than penitentiary
inmates to request “declaratory rulings as to the applicability of any statutory
provision or of any rule or order of the agency.” 5 In accordance with this statute,
the Department adopted a rule permitting the filing of petitions requesting “a
declaratory ruling concerning the applicability of a statutory provision or of a rule
or order made by the department.” ARSD 47:01:01:04. 6 And like its authorizing
statute, the rule does not contain an actual case or controversy requirement. On
the contrary, instead of requiring an actual case or controversy, the rule permits
petitions to merely “contain all the pertinent facts necessary to inform the secretary
5. Numerous State agencies have adopted rules to comply with this statute.
The requirements for petitioners vary. Some rules require that the petition
must ask for a ruling as to the applicability of the statute or rule to the
petitioner. See ARSD 17:10:03:01 (Department of Corrections); ARSD
20:04:01:07 (Commission on Gaming); ARSD 20:06:32:01 (Division of
Insurance); ARSD 20:07:02:01 (State Banking Commission); ARSD
20:10:01:34 (Public Utilities Commission); and ARSD 20:48:09:01 (Board of
Nursing). The Department of Labor and many other agencies’ rules do not
include the “applicable to the petitioner” requirement. See ARSD 47:01:01:04
(Department of Labor). See also ARSD 20:03:01:05 (Department of Human
Rights); ARSD 20:09:02:02 (S.D. Housing Development Authority); ARSD
20:18:04:01 (Gaming Commission on Deadwood Gambling); ARSD
20:39:01:07 (Board of Barber Examiners); ARSD 20:43:01:01 (Board of
Dentistry); ARSD 20:78:02:01 (Board of Medical and Osteopathic Examiners);
ARSD 44:62:01:01 (Department of Health); ARSD 67:11:01:01 (Department of
Social Services); and ARSD 70:01:01:03 (State Transportation Commission).
6. The rule provides in pertinent part:
Petitions may be filed with the secretary of the Department of
Labor for the purpose of requesting a declaratory ruling
concerning the applicability of a statutory provision or of a rule
or order made by the department. Such petitions shall be in
writing and contain all the pertinent facts necessary to inform
the secretary of the nature of the rulings requested.
ARSD 47:01:01:04.
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of the nature of the rulings requested.” Id. Thus, the Department has routinely
issued declaratory rulings based on hypothetical facts. 7
[¶9.] The underlying question, however, remains one of statute: whether
SDCL 1-26-15 authorizes agencies to issue declaratory rulings absent an actual case
or controversy. “When engaging in statutory interpretation, we give words their
plain meaning and effect, and read statutes as a whole, as well as enactments
relating to the same subject.” Citibank, N.A. v. S.D. Dep’t of Revenue, 2015 S.D. 67,
¶ 12, 868 N.W.2d 381, 387. Here, in adopting the APA, the Legislature included
case or controversy language in the statute authorizing declaratory rulings by
courts while simultaneously excluding that language in the statute authorizing
declaratory rulings by agencies. “[E]very word excluded from a statute must be
presumed to have been excluded for a purpose.” Magellan Pipeline Co. v. S.D. Dep’t
of Revenue & Regulation, 2013 S.D. 68, ¶ 9, 837 N.W.2d 402, 404. Considering
7. See Declaratory Ruling re: SDCL § 62-4-5, S.D. Dep’t of Labor, Office of the
Sec’y (Aug. 2, 2001) (considering a hypothetical employee’s situation to
determine partial disability benefits). See also Declaratory Ruling re: SDCL
§ 62-7-38, S.D. Dep’t of Labor, Office of the Sec’y (July 20, 2000) (using facts
that the Department was asked to assume); Declaratory Ruling re: SDCL §§
62-4-2, 62-4-5, S.D. Dep’t of Labor, Office of the Sec’y (July 7, 2005) (same);
and Declaratory Ruling re: SDCL 58-20-24, S.D. Dep’t of Labor, Office of the
Sec’y (Nov. 25, 2009) (same).
Appellees contend that these rulings are different from this case because they
had a factual basis in an existing controversy. This case is no different. The
relevant facts are few, but they are identified in the petition: some employees
receive discretionary bonuses prior to sustaining a workplace injury. These
facts are not analytically different from the assumed or hypothetical facts in
the prior declaratory rulings. Moreover, there certainly is an existing
controversy. Leach claims that discretionary bonuses have been wrongfully
excluded from the average weekly wage calculation in his clients’ cases.
Appellees claim that discretionary bonuses are excluded as a matter of law.
The petition also reflects that this controversy has been recurring but
evading judicial review.
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these statutes together as a part of the same act, we conclude that by excluding the
case or controversy language from SDCL 1-26-15, the Legislature excluded an
actual case or controversy requirement in agency declaratory proceedings.
Appellees’ request to read an actual case or controversy requirement in SDCL 1-26-
15 would require that we insert SDCL 1-26-14’s case or controversy language into
SDCL 1-26-15. “However, when this Court interprets legislation, it ‘cannot add
language that simply is not there.’” State v. Hatchett, 2014 S.D. 13, ¶ 14, 844
N.W.2d 610, 615 (quoting Rowley v. S.D. Bd. of Pardons & Paroles, 2013 S.D. 6,
¶ 12, 826 N.W.2d 360, 365). See also Voss v. Ralston (In re Voss’s Adoption), 550
P.2d 481, 485 (Wyo. 1976) (“Words may not be inserted in a statutory provision
under the guise of interpretation.”). We further note that this difference in the
statutes was not inadvertent. At the time the APA was adopted, the Legislature
was clearly concerned about the scope of those who would be authorized to request
declaratory rulings. Although the Legislature followed the model act in excluding
the case or controversy requirement from SDCL 1-26-15, it added a non-model act
restriction prohibiting penitentiary inmates from requesting those rulings.
[¶10.] The decisions of other courts support our conclusion. In Power
Authority of State of New York v. New York State Department of Environmental
Conservation, 448 N.E.2d 436, 438-39 (N.Y. 1983), the New York Court of Appeals
reversed a lower court’s holding that agencies had jurisdiction to issue declaratory
rulings “only if they are based upon the actual facts, established or conceded, of
genuine question, dispute or controversy.” The Court of Appeals held that under
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statutory language like SDCL 1-26-15, 8 agency declaratory rulings may be based on
“any state of facts described by a petition” including “an assumed state of facts[.]”
Id. at 439. Like we do today, the New York Court reasoned: “Notably absent from
[New York’s statutory] language is any limitation to agreed or proved facts or
‘genuine’ questions, disputes or controversies.” Id. The Court also observed that
the New York administrative provision was unlike declaratory judgments actions in
courts. Id. See also City of Des Moines v. Pub. Emp’t Relations Bd., 275 N.W.2d
753, 758 (Iowa 1979) (stating that Iowa’s then verbatim adoption of § 8 of MSAPA
“contemplates declaratory rulings by administrative agencies on purely
hypothetical sets of facts . . . . And it provides that such rulings will be the subject
of judicial review.”) (citations omitted); Matrix Funding Corp. v. Auditing Div. of
Utah State Tax Comm’n, 912 P.2d 960, 961 (Utah 1996) (holding that the
“hypothetical posture of a case does not, by itself, prevent [the court] from reviewing
an administrative declaratory order.”). Federal courts have also concluded that the
similar unrestricted language in the Federal Administrative Procedure Act does not
8. Like SDCL 1-26-15, the New York statute had no case or controversy
restriction. In relevant part, it provided:
On petition of any person, any agency may issue a declaratory
ruling with respect to the applicability to any person, property,
or state of facts of any rule or statute enforceable by it. Each
agency shall prescribe by rule the form for such petitions and
the procedure for their submission, consideration and
disposition.
Power Auth. of the State of N.Y., 448 N.E.2d at 438-39.
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require an actual case or controversy for agency declaratory rulings. 9 See Tenn.
Gas Pipeline Co. v. Fed. Power Comm’n, 606 F.2d 1373, 1380 (D.C. Cir. 1979)
(concluding that agencies may issue “an advisory opinion or abstract declaration
without regard to the existence of an actual controversy.”); N.C. Util. Comm’n v.
Fed. Commc’n Comm’n, 537 F.2d 787, 791, n.2 (4th Cir. 1976) (stating that federal
agencies are not restricted to adjudicating only cases or controversies).
[¶11.] Appellees, however, argue that language expressing a case or
controversy requirement need not be in SDCL 1-26-15 because the requirement is
inherent. Appellees rely on Boever v. South Dakota Board of Accountancy, 526
N.W.2d 747, 750 (S.D. 1995), in which we concluded that an action for declaratory
judgment was not ripe because it was based on future injuries that would not likely
occur. Boever, however, does not apply because it involved a request for declaratory
relief in a court under South Dakota’s Uniform Declaratory Judgment Act—SDCL
chapter 21-24. Id. at 749-50. And that act, like SDCL 1-26-14, contains language
requiring an actual case or controversy in requests for the construction of
statutes. 10 Appellees’ other cases suffer from the same infirmity. See Campbell v.
9. The relevant language of the Federal Administrative Procedures Act under
consideration provided: “The agency, with like effect as in the case of other
orders, and in its sound discretion, may issue a declaratory order to
terminate a controversy or remove uncertainty.” 5 U.S.C. § 554.
10. See SDCL 21-24-3, which provides:
Any person interested under a deed, will, written contract, or
other writing constituting a contract, or whose rights, status, or
other legal relations are affected by a statute, municipal
ordinance, contract, or franchise, may have determined any
question of construction or validity arising under the
instrument, statute, ordinance, contract, or franchise and obtain
(continued . . .)
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Fritzsche, 78 S.D. 593, 596, 105 N.W.2d 675, 676 (1960) (holding that courts should
not issue advisory opinions); Steinmetz v. State, DOC Star Acad., 2008 S.D. 87, ¶ 17,
756 N.W.2d 392, 399 (holding that the matter was not ripe for review by a court);
Kneip v. Herseth, 87 S.D. 642, 654, 214 N.W.2d 93, 100 (1974) (upholding a
declaratory judgment by a court). 11
[¶12.] Appellees finally argue that our interpretation of SDCL 1-26-15 leads
to an absurd result. Appellees contend that any person could demand an agency
declaratory ruling on any issue no matter how speculative or remote. However,
many courts conclude that administrative agencies retain discretion to deny
requests for declaratory rulings. 12 Thus, agencies may not be required to rule on
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(. . . continued)
a declaration of rights, status, or other legal relations
thereunder.
11. Appellees’ cases from other jurisdictions are also inapposite. See People’s
Counsel of D.C. v. Pub. Serv. Comm’n of D.C., 474 A.2d 1274, 1288-89 (D.C.
1984) (involving the court’s jurisdiction, not the agency’s); Baltimore City Bd.
of Sch. Comm’rs v. City Neighbors Charter Sch., 929 A.2d 113, 136 (Md. 2007)
(holding that it was not improper for an agency to issue declaratory ruling);
Health Cent. v. Comm’r of Ins., 393 N.W.2d 625, 631 (Mich. Ct. App. 1986);
and Thompson v. State, 167 P.3d 867, 873-74 (Mont. 2007) (involving
declaratory judgments, not declaratory rulings); Beason v. N.C. Dep’t of Sec’y
of State, 741 S.E.2d 663, 666-67 (N.C. Ct. App. 2013) (involving a statute that
explicitly limited its application to aggrieved persons.)
12. See Yale Broad. Co. et al. v. Fed. Commc’n Comm’n, 478 F.2d 594, 602 (D.C.
Cir. 1973) (holding that the F.C.C. had discretion to refuse to issue a
declaratory ruling regarding a broadcaster’s license because it would be
impossible for the Commission to rule on every petition that could come
before it); Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of City &
Cty. of Honolulu, 159 P.3d 143, 154 (Haw. 2007) (holding that the Legislature
intended agencies to have discretion regarding issuing declaratory rulings);
Iowa Ins. Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58, 68 (Iowa
2015) (“Whether or not [Petitioner] would be aggrieved or adversely affected
(continued . . .)
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every conceivable question someone may have. We leave the scope of that discretion
for another day when that issue has been squarely presented.
Jurisdiction of Circuit Courts to Hear Appeals
[¶13.] The circuit court’s appellate jurisdiction to review agency decisions is
governed by SDCL 1-26-30. That statute authorizes appeals of agency decisions by
non-aggrieved parties if the party has exhausted administrative remedies and the
decision was not rendered in a contested case. The statute provides: “A person who
has exhausted all administrative remedies available within any agency or a party
who is aggrieved by a final decision in a contested case is entitled to judicial review
under this chapter.” Id. (emphasis added). Notably, the Legislature’s 1977
amendment of this statute replaced the word “and” with the emphasized word “or.”
1977 S.D. Sess. Laws ch. 13, § 12. The now disjunctive language is a significant
departure from the MSAPA, which required exhaustion of administrative remedies
and aggrieved party status to appeal to the courts. See Revised Model State Admin.
Procedure Act § 15 (Unif. Law Comm’n 1961).
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(. . . continued)
if its request for a declaratory order were denied, the commissioner could
have concluded ‘the importance and nature of the questions [to be] decided’
would justify dispensing with a strict standing requirement.” (quoting City of
Des Moines, 275 N.W.2d at 759)); Teleconnect Co. v. Iowa State Commerce
Comm’n, 366 N.W.2d 515, 518 (Iowa 1985) (“‘Agency action’ includes a
declaratory ruling or a refusal to issue such a ruling.”); Md.-Nat’l Capital
Park v. Anderson, 947 A.2d 149, 160 (Md. Ct. Spec. App. 2008) (“The decision
to issue a declaratory ruling is a discretionary act of the agency.”); Humane
Soc’y of U.S., Inc. v. Brennan, 63 A.D.3d 1419, 1420 (N.Y. App. Div. 2009)
(“There is no requirement that the agency issue a declaratory ruling when
requested and a petitioner has no rights under the statute other than a
timely response by the agency[.]”); Wis. Fertilizer Ass’n v. Karns, 158 N.W.2d
294, 300 (Wis. 1968) (holding that an agency has discretion whether to issue
a declaratory ruling).
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[¶14.] Thus, under the disjunctive 1977 amendment, the Legislature
authorized parties in agency proceedings to appeal to circuit court if they had either
exhausted their remedies within the agency or if they were aggrieved by the
agency’s decision in a contested case. 13 In this case, following the declaratory
13. The dissent argues that the disjunctive amendment did not change the
statute to permit an appeal under the “exhaustion of administrative
remedies” clause of SDCL 1-26-30. The dissent relies on Homestake Mining
Co. v. Bd. of Envtl. Prot., 289 N.W.2d 561 (S.D. 1980) and State v. Small,
2003 S.D. 29, 659 N.W.2d 15. See dissent ¶¶ 26-27. Neither case supports
the dissent. Homestake Mining Co. only considered whether an SDCL 1-26-
30 appeal was an additional method for judicially challenging an agency’s
adoption of administrative rules. Homestake Mining Co., 289 N.W.2d at 562.
The Court noted the disjunctive amendment, but expressly declined to offer
any opinion on it beyond the administrative rule question: “We need not
decide what changes in procedure, if any, were wrought by [the disjunctive]
amendment except to say we are convinced it does not contemplate an
additional procedure for a wholesale attack on the validity of administrative
rules through an appeal process.” Id. (emphasis added). Today’s appeal does
not involve an attack on the adoption of administrative rules. And although
today’s case does involve the appeal of an agency “declaratory ruling,” those
rulings are not administrative “rules.” See SDCL 1-26-1 (8) (“The term [rule]
. . . does not include . . . [d]eclaratory rules issued pursuant to § 1-26-15[.]”).
Because today’s case does not involve a challenge to the validity of any “rule”
in the Administrative Rules of South Dakota, Homestake Mining Co. does not
prohibit the circuit court from exercising jurisdiction under SDCL 1-26-30.
Small also fails to provide any relevant limitation on circuit court appellate
jurisdiction. The question on appeal to this Court in Small only involved the
circuit court's original jurisdiction. The plaintiff had filed a “summons and
complaint” in circuit court (an original action) “for declaratory judgment
pursuant to SDCL 21-24-3.” Small, 2003 S.D. 29, ¶ 8, 659 N.W.2d at 16.
And, unlike SDCL 1-26-30, SDCL 21-24-3 specifically required standing and
an actual case or controversy in that original proceeding. See SDCL 21-24-3
(limiting declaratory relief to those who “whose rights, status, or other legal
relations are affected . . .”). Smalls later amended their “complaint” to
request a “declaratory judgment” pursuant to SDCL 1-26-14. 2003 S.D. 29,
¶ 8, 659 N.W.2d at 16. But again, unlike SDCL 1-26-30, SDCL 1-26-14 only
authorized original actions for declaratory judgment by a party who was
“aggrieved.” See id. (requiring the plaintiff to allege that the rule “interferes
with or impairs, or threatens to interfere with or impair, the legal rights or
privileges of the plaintiff”). Small is inapplicable because it involved the
(continued . . .)
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ruling, Leach had exhausted all available agency remedies. 14 Therefore, under
SDCL 1-26-30, the circuit court had jurisdiction to entertain this appeal. 15
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(. . . continued)
original jurisdiction of the circuit court and the statutes we construed
specifically required an actual case or controversy. In the final analysis,
today’s appeal does not involve a circuit court’s original jurisdiction or the
Administrative Rules of South Dakota. Therefore, neither Small nor
Homestake Mining Co. supports the dissent’s remarkable proposition that
SDCL 1-26-30 only provides circuit court appellate jurisdiction in cases
“involving a contested case procedure.” See dissent ¶ 26 (citing Small and
Homestake Mining Co.).
14. The dissent contends that Leach has not exhausted his administrative
remedies. Dissent ¶ 29. The dissent reasons: “A remedy cannot exist in the
absence of an injury. . . . Because there was no injury, there necessarily was
no ‘remedy’ for Leach to exhaust.” Id. This reasoning is based on the false
premise that without an injury no remedy of any kind can exist. The APA
dispels the dissent’s premise. As we have previously held, SDCL 1-26-15
authorizes individuals to petition administrative agencies to issue
declaratory rulings on the applicability of statutes even though the petitioner
can claim no injury. See supra ¶¶ 7-10. We have also specifically stated that
agency declaratory ruling proceedings are an administrative “remedy.” See
Dan Nelson, Auto., Inc. v. Viken, 2005 S.D. 109, ¶ 14, 706 N.W.2d 239, 244.
15. The dissent contends that even if the circuit court had jurisdiction under
SDCL 1-26-30, the case was properly dismissed because Leach did not have
“standing” and did not present a “case or controversy.” Dissent ¶¶ 30-33. All
of the dissent’s authorities are facially inapposite because they either involve
the original jurisdiction of a circuit court or they involve an appellate statute
that specifically requires standing and a case or controversy. See State v.
Kvasnicka, 2013 S.D. 25, ¶ 23, 829 N.W.2d 123, 129 (discussing principles of
mootness in a criminal case); Boever v. S.D. Bd. of Accountancy, 526 N.W.2d
747, 750 (S.D. 1995) (considering ripeness in an original action in circuit
court); Cable v. Union Cty. Bd. of Cty. Comm’rs, 2009 S.D. 59, ¶ 15,
769 N.W.2d 817, 824 (involving an appeal from a county commissioner
decision under a different statute that specifically required standing; i.e. “a
person aggrieved”). Moreover, Cable is based on Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992), in
which the United States Supreme Court held that in the federal courts, “the
core component of standing is an essential and unchanging part of the case-
or-controversy requirement of Article III.” But today’s case is not governed
by Article III of the United States Constitution. Indeed, although Lujan is
(continued . . .)
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Jurisdiction of this Court to Review a Circuit Court’s Review of an Agency Decision
[¶15.] The last issue is whether this Court has jurisdiction to consider
Leach’s appeal of the circuit court’s decision. As previously noted, the South Dakota
Constitution leaves “to the [L]egislature as a matter of substantive law to say
whether there shall be a right of appeal” to this Court. Piedmont Indep. Sch. Dist.
No. 34 of Meade Cty. v. Meade Cty. Bd. of Educ., 78 S.D. 384, 386, 103 N.W.2d 177,
178 (1960). Pursuant to its constitutional authority, the Legislature enacted SDCL
1-26-37, which delineates our appellate jurisdiction to review decisions of the circuit
courts in cases decided under the APA. The statute provides: “An aggrieved party
or the agency may obtain a review of any final judgment of the circuit court under
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(. . . continued)
helpful when construing statutes that specifically require an aggrieved party,
this Court has specifically rejected the dissent’s argument in considering
what appeals are authorized by SDCL 1-26-30. This Court refused to “add to
SDCL 1-26-30 the gloss of federal cases on standing” under Article III.
Application of N. States Power Co., 328 N.W.2d 852, 854 (S.D. 1983). See also
ASARCO Inc. v. Kadish, 490 U.S. 605, 617, 109 S. Ct. 2037, 2045, 104 L. Ed.
2d 696 (1989) (“We have recognized often that the constraints of Article III do
not apply to state courts, and accordingly the state courts are not bound by
the limitations of a case or controversy or other federal rules of
justiciability[.]”). We do recognize that Article V, § 5 of the South Dakota
Constitution arguably contains a “case” restriction on the “original
jurisdiction” of circuit courts. But the appellate jurisdiction of those courts is
not so limited. In a separate sentence, Article V, § 5 gives the Legislature
plenary authority to determine the circuit courts’ appellate jurisdiction. That
sentence provides: “The circuit courts have such appellate jurisdiction as may
be provided by law.” Id. In this case, the law (SDCL 1-26-15) gives agencies
authority to issue declaratory rulings in hypothetical cases. The law (SDCL
1-26-30) further authorizes appeals from those rulings to circuit court when
the administrative proceedings have been exhausted. This law is clear, and
our task is to simply apply the South Dakota Constitution and this statutory
language without the judicial “gloss” of the “case or controversy” limitation in
Article III of the federal Constitution. See Application of N. States Power Co.,
328 N.W.2d at 854.
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this chapter by appeal to the Supreme Court.” SDCL 1-26-37. Unlike the statute
authorizing appeals to circuit court, this statute requires that the appealing party
must be “aggrieved” by the decision of the circuit court. Id.
[¶16.] Aggrieved parties are those that “suffer the denial of some claim of
right either of person or property . . . .” Application of N. States Power Co., 328
N.W.2d at 855 (quoting Barnum v. Ewing, 53 S.D. 47, 53, 220 N.W. 135, 138 (S.D.
1928)). Although Leach has no claim of right to include discretionary bonuses in
any actual weekly wage determination, claims of right sufficient to create standing
may arise from statute. The alleged deprivation of a statutorily created right
creates an injury to a party even if there would have been no judicially recognizable
injury in the absence of the statute. See Warth v. Seldin, 422 U.S. 490, 514, 95 S.
Ct. 2197, 2213, 45 L. Ed. 2d 343 (1975) (“Congress may create a statutory right or
entitlement the alleged deprivation of which can confer standing to sue even where
the plaintiff would have suffered no judicially cognizable injury in the absence of
statute.”). See also Heffernan v. Missoula City Council, 255 P.3d 80, 92 (Mont.
2011) (“Importantly, the legislative branch ‘may enact statutes creating legal rights,
the invasion of which creates standing, even though no injury would exist without
the statute.’” (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S. Ct.
1146, 1149, 35 L. Ed. 2d 536 (1973))). Thus, injury and standing may be shown
“solely by the invasion of a legal right” that the legislative branch created. Golan v.
Veritas Entm’t, LLC, 788 F.3d 814, 819 (8th Cir. 2015) (quoting Hammer v. Sam’s
East, Inc., 754 F.3d 492, 498 (8th Cir. 2014).
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[¶17.] The deprivation of Leach’s statutory rights to a declaratory ruling and
a circuit court appeal constitute an injury that provides standing and “aggrieved”
party status to appeal. In Ingalls Shipbuilding, Inc. v. Director, Office of Workers’
Compensation Programs, United States Department of Labor, 102 F.3d 1385, 1387
(5th Cir. 1996), a worker sued his employer under the Longshore and Harbor
Workers’ Compensation Act. As was permitted under the Act, the employer
requested that the District Director of the Office of Workers’ Compensation
Programs (District Director) refer the workers’ compensation claim to the Office of
Administrative Law Judges (OALJ). Id. Although the District Director was
mandated to transfer the case, he did not do so. Id. at 1387, 1389. The employee
was later allowed to withdraw his claim against the Employer without prejudice.
Id. at 1387-88. The Employer appealed the withdrawal to the Benefits Review
Board. Id. at 1388. The Board held that the Employer was not an aggrieved party
with standing to appeal because even though the District Director failed to transfer
the case to the OALJ for a hearing, the Employer was not injured by the
withdrawal. Id. The Fifth Circuit reversed, holding that the Employer was injured
by the denial of its procedural right to have its claim heard by the OALJ, even
though it had not yet suffered substantive injury. Id. at 1390. The court also held
that this type of procedural, statutory injury created aggrieved party status and
standing to pursue an appeal under a statute allowing an appeal to the United
States Court of Appeals by a person “aggrieved.” Id.
[¶18.] As was the case in Ingalls, SDCL 1-26-15 and SDCL 1-26-30 afford
procedural rights. The former gave Leach the right to petition for a declaratory
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ruling under hypothetical facts. The latter gave Leach the right to appeal the
declaratory ruling to circuit court even though he was not personally aggrieved.
Therefore, once the Department issued a declaratory ruling, Leach was “aggrieved”
within the meaning of SDCL 1-26-37 by the circuit court’s vacation of his
declaratory ruling and dismissal his appeal. He was aggrieved by the deprivation of
these statutory-procedural rights. See Ingalls, 102 F.3d at 1389-90. And because
Leach was aggrieved, we have jurisdiction under SDCL 1-26-37 to remand this
matter for a decision on the merits.
[¶19.] We do, however, point out that Leach would not have been aggrieved
and we would not have had jurisdiction had the circuit court ruled (either way) on
the merits. Had that occurred, Leach would have received his procedural right to a
declaratory ruling and circuit court review. Cf. Ingalls, 102 F.3d at 1390
(“Moreover, this injury can be redressed by vacating the withdrawal approved by
the District Director and allowing the OALJ to act on the motion in accordance with
the adjudicative procedures that govern its proceedings.”). Thus, once Leach is
afforded his statutory rights by a circuit court’s review on the merits, this Court will
have no jurisdiction to review the circuit court’s decision because Leach will have
lost his “aggrieved” party status. We acknowledge what appears to be an
inconsistency: declaratory rulings in hypothetical cases will be appealable to the
circuit court but not this Court. This is an anomaly created by the Legislature’s
1977 amendment of the APA (SDCL 1-26-30) allowing non-aggrieved parties to
appeal to circuit court but not this Court. Although we question whether the
Legislature intended this unusual result, the statutes are clear and therefore
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resolution of that question is within the exclusive province of the Legislature.
Under Article V, § 5 of the Constitution, the Legislature determines the appellate
jurisdiction of the courts.
[¶20.] Under SDCL 1-26-15 and SDCL 1-26-30, the Department and the
circuit court had jurisdiction to consider Leach’s petition for a declaratory ruling.
Because the circuit court deprived Leach of those statutory rights, he was a person
“aggrieved” who was authorized to appeal to this Court under SDCL 1-26-37. We
reverse and remand to the circuit court to determine the merits of the petition for
declaratory ruling.
[¶21.] SEVERSON, WILBUR, and KERN, Justices, concur.
[¶22.] GILBERTSON, Chief Justice, concurs in result in part and dissents in
part.
GILBERTSON, Chief Justice (concurring in result in part and dissenting in part).
[¶23.] I agree with the Court’s conclusion that the Department had
jurisdiction to hear Leach’s petition. However, I disagree that Leach had a right to
appeal the Department’s ruling. Therefore, I concur in result in the Court’s decision
to reverse the circuit court’s vacation of the Department’s ruling. However,
remanding to the circuit court for a determination on the merits is not authorized in
this case because the circuit court does not have jurisdiction to entertain Leach’s
appeal. Even if the appeal was statutorily authorized, it is improper because Leach
lacks judicial standing. Therefore, I would affirm the circuit court’s dismissal of
Leach’s appeal.
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[¶24.] 1. The circuit court lacked appellate jurisdiction.
[¶25.] The Court and Leach assert the circuit court had jurisdiction under the
first sentence of SDCL 1-26-30, which states: “A person who has exhausted all
administrative remedies available within any agency or a party who is aggrieved by
a final decision in a contested case is entitled to judicial review under this chapter.”
As the Court notes, the Legislature amended SDCL 1-26-30 in 1977, replacing and
with or. 1977 S.D. Sess. Laws ch. 13, § 12. Based solely on this change in word
choice, both the Court and Leach conclude that this amendment created alternate
avenues for appeal.
[¶26.] We already considered and rejected the notion that the 1977
Amendment was substantive rather than stylistic over 35 years ago in Homestake
Mining Co. v. Board of Environmental Protection, 289 N.W.2d 561 (S.D. 1980). In
that case, a mining company appeared before the State Environmental Protection
Board to protest its adoption of rules changing the designation of a stream, which
Homestake used for disposing of waste, to a fishery stream. Id. at 561-62.
Homestake attempted to appeal the rule into circuit court under SDCL 1-26-30 and
also filed a declaratory judgment action with the circuit court under SDCL 1-26-14.
Homestake Mining, 289 N.W.2d at 562. In rejecting Homestake’s appeal, we
declined to assign any meaning to the 1977 Amendment and acknowledged that a
substantive change may not have even been intended. See id. We held “that the
1977 legislative amendment to SDCL 1-26-30 was not intended to authorize appeals
that question rules adopted by administrative agencies in other than contested
cases.” Id. (emphasis added). In other words, SDCL 1-26-30 provides appellate
jurisdiction to the circuit court to hear only a case “involv[ing] a contested case
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procedure.” Small v. State, 2003 S.D. 29, ¶¶ 18-19, 659 N.W.2d 15, 19 (per curiam);
Homestake Mining, 289 N.W.2d at 562. 16 In concluding otherwise, the Court
ignores our decisions in Homestake Mining and Small.
[¶27.] Small presents an additional analytical challenge to the Court’s
conclusion that the 1977 Amendment established two avenues for appeal. The
Court claims that “under the disjunctive 1977 amendment, the Legislature
authorized parties in agency proceedings to appeal to circuit court if they had either
exhausted their remedies within the agency or if they were aggrieved by the
agency’s decision in a contested case.” See supra ¶ 14. In other words, the Court
argues that the aggrieved-party and remedy-exhaustion requirements are each
sufficient—instead of necessary—conditions to invoke a right of appeal. However,
contrary to the Court’s claim, we have repeatedly held that the remedy-exhaustion
requirement is a necessary condition of appeal. Small, 2003 S.D. 29, ¶ 16,
659 N.W.2d at 18-19 (“[N]o one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy has been exhausted.”
(quoting S.D. Bd. of Regents v. Heege, 428 N.W.2d 535, 539 (S.D. 1988))).
Consequently, subscribing to the Court’s theory requires either overruling these
numerous cases or explaining why the 1977 Amendment should be read as only half
disjunctive (the Court offers no such explanation).
16. Although the present case is distinguishable from Homestake insofar as it
presents a challenge to an agency’s interpretation of a statute rather than its
own rule, this distinction is not material. There is no discernable reason to
conclude that the Legislature intended to deny appellate jurisdiction when an
agency interprets its own rule in an uncontested case but grant jurisdiction
when it instead interprets a statute.
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[¶28.] Portions of the Administrative Procedure Act (APA) and the
Declaratory Judgment Act (DJA) also suggest the Legislature did not intend the
1977 Amendment to create a right to appeal in an uncontested case. When
engaging in statutory construction, “the intent [of a statute] must be determined
from the statute as a whole, as well as other statutes relating to the same subject.”
Maynard v. Heeren, 1997 S.D. 60, ¶ 13, 563 N.W.2d 830, 835. Because this is an
uncontested case, Leach was not permitted to directly ask the circuit court to
declare the meaning of earnings. SDCL 21-24-3. Similarly, Leach would not have
been permitted to directly ask the circuit court to declare the meaning of an
administrative rule. SDCL 1-26-14. By remanding this case for an appeal on the
merits, then, the Court today permits Leach to do by way of appeal exactly that
which he would be barred from doing directly: ask a court to substantively declare
the meaning of a statute in the absence of an actual case.
[¶29.] The requirement that a would-be appellant exhaust administrative
remedies reinforces the conclusion that the 1977 Amendment did not establish a
right to appeal in an uncontested case. A remedy cannot exist in the absence of an
injury. See Hyde v. Minn., Dak. & Pac. Ry. Co., 29 S.D. 220, 234, 136 N.W. 92, 97
(1912) (“There is no redress, as there is no wrong to redress . . . .”); Black’s Law
Dictionary 1485 (10th ed. 2014) (defining remedy as “[t]he means of enforcing a right
or preventing or redressing a wrong”). In the hypothetical question Leach appealed
to the circuit court, he did not claim to have been injured, nor did he seek to enforce
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his rights. 17 Because there was no injury, there necessarily was no “remedy” for
Leach to exhaust. 18 Therefore, Leach is not “[a] person who has exhausted all
administrative remedies available[.]” SDCL 1-26-30 (emphasis added).
17. In his petition, Leach states: “This petition allows the Secretary to correct the
erroneous rulings of the Department, so that injured workers in the future
can receive the benefits to which they are entitled by law.” (Emphasis
added.)
18. The Court’s conclusory claim that the APA dispels this “false premise” is
unsupported. See supra ¶ 14 n.14. The Court first repeats its earlier holding
that SDCL 1-26-15 permits an individual to petition an agency for a
declaratory ruling absent an injury. As I have already indicated, I agree that
Leach was permitted to petition the Department for a declaratory ruling.
However, in the absence of an injury, such is no more a “remedy” for Leach
than, for example, the ability to ask for an advisory opinion from this Court is
a “remedy” for the Governor. Simply repeating that Leach has the ability to
petition for a declaratory ruling absent an injury completely ignores the
question whether that ability can logically be considered a remedy. Thus, the
Court’s reasoning is circular—it assumes that the ability to petition for a
declaratory ruling is an administrative remedy in order to conclude the same
without addressing how one enforces a right that does not exist or redresses a
wrong that has not occurred.
The Court’s argument based on our decision in Dan Nelson, Automotive, Inc.
v. Viken, 2005 S.D. 109, ¶ 14, 706 N.W.2d 239, 244, is similarly ineffective.
The Court claims that “[w]e have . . . specifically stated that agency
declaratory ruling proceedings are an administrative ‘remedy.’” In Dan
Nelson, Automotive, the plaintiffs brought an action for declaratory judgment
in the circuit court under SDCL chapter 21-24. Id. ¶ 4, 706 N.W.2d at 241.
As the Court correctly points out, an action for declaratory judgment
“requir[es] an actual case or controversy in requests for the construction of
statutes.” See supra ¶ 11. Therefore, Dan Nelson, Automotive necessarily
involved an injury. In relying on that case, then, the Court’s apparent
argument is as follows: a declaratory ruling is a remedy when an injury is
present; therefore, a declaratory ruling is a remedy when an injury is not
present. This non sequitur only highlights the dependency a remedy’s
existence has on the presence of an injury.
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Consequently, the circuit court did not have appellate jurisdiction over Leach’s
appeal even if the Court ignores Homestake Mining 19 and Small. 20
[¶30.] 2. Leach lacked judicial standing to appeal into the courts.
[¶31.] Even if the Court was correct in concluding the circuit court had
appellate jurisdiction, Leach’s appeal should have been dismissed by the circuit
court because it does not present a case or controversy. “It is a fundamental
principle of our jurisprudence that courts do not adjudicate issues that are not
actually before them in the form of cases . . . .” State v. Kvasnicka, 2013 S.D. 25,
¶ 23, 829 N.W.2d 123, 129 (quoting Moeller v. Weber, 2004 S.D. 110, ¶ 45,
689 N.W.2d 1, 16). “Although declaratory relief is designed to determine legal
19. Relying solely on the definition of rule from SDCL 1-26-1(8)(b), the Court
claims that Homestake Mining is inapplicable because it involved the appeal
of a rule instead of a ruling. See supra ¶ 14 n.13. The Court’s reliance on
SDCL 1-26-1(8) is misplaced. This definition merely has the effect of
exempting a declaratory ruling from the procedural requirements that
accompany a formal adoption of rules. See SDCL 1-26-4 (requiring use of
“notice, service, and public hearing procedure . . . to adopt, amend, or repeal a
permanent rule”). In this case, the distinction between a rule (i.e., what a
rule says) and a ruling (i.e., what the agency thinks a rule means) is a
distinction without significance—both outline an administrative agency’s
likely course of conduct under the relevant circumstances. Yet, under the
Court’s reading of Homestake Mining, a nonaggrieved party would be
permitted to appeal the latter but not the former.
20. Despite the Court’s suggestion otherwise, the original action in Small was a
contested case before an administrative agency (Department of Social
Services). The Smalls attempted to appeal into the circuit court, but based on
a misreading of Homestake Mining, they believed the proper procedure to
appeal into the circuit court was by filing a declaratory-judgment action
under SDCL 1-26-14 instead of under SDCL 1-26-30. Small, 2003 S.D. 29,
¶¶ 16-17, 659 N.W.2d at 18-19. We rejected their appeal because they failed
to properly appeal DSS’s final decision, and we unanimously held:
“Homestake . . . stands for the proposition that in contested cases, like the
Smalls’, rules can be contested by the appeal authorized by SDCL 1-26-30.”
Id. ¶ 19, 659 N.W.2d at 19 (emphasis added). Thus, a careful reading of
Small indicates it is not inapplicable as the Court claims.
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rights or relations before an actual injury occurs, courts ordinarily will not render
decisions involving future rights contingent upon events that may or may not
occur.” Boever, 526 N.W.2d at 750.
[¶32.] The Court erroneously concludes that the case requirement is satisfied
simply because—according to the Court—SDCL 1-26-30 grants appellate
jurisdiction. On the contrary, the question whether a court has jurisdiction is not
synonymous with the question whether an appeal presents a justiciable case. A
court should decline to decide an issue in the absence of an injury even if the court
has jurisdiction to do so. Boever, 526 N.W.2d at 750. To conclude otherwise leads to
unreasonable results. Under SDCL 15-26A-3, for example, this Court has appellate
jurisdiction over any judgment of a circuit court. According to the Court’s
reasoning, then, this Court should never dismiss such an appeal for lack of a case.
Yet, because a court that lacks jurisdiction can do nothing but dismiss for lack of
jurisdiction, Cadle Co. v. Shabani, 4 So. 3d 460, 463 (Ala. 2008), presumably we
have had appellate jurisdiction in every instance in which we have invoked the case
requirement to decline deciding an issue. See, e.g., Kvasnicka, 2013 S.D. 25,
¶¶ 21-24, 829 N.W.2d at 128-29 (declining to decide question on appeal for lack of a
case or controversy). Thus, having appellate jurisdiction is a necessary—but not a
sufficient—condition to deciding an issue on appeal.
[¶33.] Leach has not presented a case or controversy for judicial review. “A
plaintiff must satisfy three elements in order to establish standing as an aggrieved
person such that a court has subject matter jurisdiction. First, the plaintiff must
establish that he suffered an injury in fact . . . .” Cable v. Union Cty. Bd. of Cty.
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Comm’rs, 2009 S.D. 59, ¶ 21, 769 N.W.2d 817, 825 (citation omitted). Standing
cannot be established unless the alleged injury is “actual or imminent” and not
“hypothetical[.]” Id. Leach does not claim to have been injured by the Department’s
ruling, nor does he claim to represent a client injured by the Department’s ruling. 21
In other words, Leach asked the circuit court to interpret a statute, SDCL 62-1-1(6),
and declare the rights of a hypothetical third party hypothetically affected by the
Department’s declaratory ruling. As we unanimously held in Boever, “judicial
machinery should be conserved for problems which are real and present or
imminent, not squandered on problems which are abstract or hypothetical or
remote.” 526 N.W.2d at 750 (quoting Gottschalk v. Hegg, 228 N.W.2d 640, 643-44
(S.D. 1975)). Therefore, Leach does not have standing, and the circuit court
correctly dismissed his appeal. 22
21. Leach conceded in his petition to the Department that in every actual case in
which the question whether a discretionary bonus is included in the statutory
definition of earnings under SDCL 62-1-1(6) has arisen, the employers and
insurance companies involved have actually agreed to include discretionary
bonuses in their calculations.
22. The Court erroneously concludes that this standing argument is based on
Article III of the U.S. Constitution. As is evident from this Court’s past
decisions cited in this writing, see supra ¶¶ 31-33, the standing requirement
is alive and well as a matter of this Court’s jurisprudence.
Even so, the Court claims that Kvasnicka, Cable, and Boever are “facially
inapposite.” See supra ¶ 14 n.15. Yet, the applicability of these cases to the
present one is obvious. Each of these cases involved an appellate court
refusing to decide an issue presented on appeal for lack of standing. In
rejecting this well-established principle, the Court apparently concludes that
while this Court can refuse to expend its judicial resources on hypothetical
questions, a circuit court serving an appellate function is not similarly
permitted to protect its resources.
(continued . . .)
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[¶34.] In practical terms, Leach’s appeal to the circuit court is meaningless.
Even if the court decides in his favor on the merits, what has he accomplished?
Because he asserts no injury—and because there was no adverse party to be bound
by the court’s decision—a favorable decision carries no immediate benefit.
Additionally, as the Court concedes, remanding Leach’s appeal to the circuit court
for a decision on the merits precludes a review of the merits by this Court. See
supra ¶ 19 (“[O]nce Leach is afforded his statutory rights by a circuit court’s review
on the merits, this Court will have no jurisdiction to review the circuit court’s
decision because Leach will have lost his ‘aggrieved’ party status.”). However, a
circuit-court opinion has no precedential effect. Cf. Yankton Prod. Credit Ass’n v.
Jensen, 416 N.W.2d 860, 862 (S.D. 1987). Under the DJA, the next employer to
come along that is involved in an actual case can simply ask another circuit court to
declare the meaning of earnings. SDCL 21-24-3. Thus, a favorable decision from
the circuit court on remand carries no future benefit either. Because Leach’s appeal
offers no benefit whatsoever—even if successful on remand—this case presents a
classic example of squandered judicial resources. 23
_________________________________
(. . . continued)
Even if this writing relied on Article III cases, however, the Court’s reliance
on Application of Northern States Power Co., 328 N.W.2d 852 (S.D. 1983), is
misplaced. Regardless of what our view might have been in 1983, we have
since unanimously incorporated federal analysis into our recent decisions.
See Cable, 2009 S.D. 59, ¶ 21, 769 N.W.2d at 825-26 (incorporating federal-
standing requirements as defined in Lujan, 504 U.S. 555, 112 S. Ct. 2130,
and dismissing administrative appeal for lack of standing).
23. Neither will Leach be prejudiced if denied an appeal. As noted, Leach does
not allege any injury. Furthermore, SDCL 1-26-30 “does not limit utilization
of or the scope of judicial review available under other means of review,
(continued . . .)
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Conclusion
[¶35.] The Court jumps through a staggering number of hoops in order to
grant Leach an appeal. Subscribing to the Court’s opinion requires concluding:
(1) that the Legislature intended to permit the appeal of a ruling in an uncontested
case but not a rule, despite the lack of material distinction between the two; (2) that
the Legislature intended the 1977 Amendment to be only half disjunctive,
permitting an appeal in an uncontested case if remedies are exhausted but not
permitting an appeal of a contested case without exhausting remedies; (3) that the
Legislature intended to require a circuit court to determine hypothetical questions
of law on appeal but bar it from doing so directly; (4) that the Legislature intended
to vest terminal appellate jurisdiction in uncontested cases with the circuit court
instead of this Court; (5) that a remedy can exist where there is no injury; and
(6) that SDCL 1-26-30’s grant of appellate jurisdiction trumps well-established
standing requirements even though other appellate-jurisdiction-granting statutes
do not. After all of this effort, Leach is still left with an appeal that will consume
judicial resources but offer absolutely no benefit now or in the future.
[¶36.] Our previous decisions in Homestake Mining and Small, as well as
other portions of the APA and the DJA, establish that the 1977 Amendment did not
create a right of appeal in an uncontested case. Even if it had, the absence of an
alleged injury logically precludes the Court’s conclusion that Leach “exhausted
_________________________________
(. . . continued)
redress, or relief, when provided by law.” If the meaning of SDCL 62-1-1(6)
ever arises in an actual case in the future, Leach is free to preemptively seek
a declaratory judgment under the DJA or to simply appeal the Department’s
adverse decision in a contested case.
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administrative remedies.” The absence of an injury also means that Leach has not
presented a case or controversy for review; instead, Leach merely seeks to validate
his own legal opinion. Furthermore, an appeal before the circuit court offers no
potential benefit to Leach. For all of the foregoing reasons, the circuit court
properly dismissed Leach’s appeal. Therefore, I would reverse the circuit court’s
vacation of the Department’s ruling but otherwise affirm the court’s dismissal of
Leach’s appeal.
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