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Okerson v. Common Council of the City of Hot Springs

April 29, 2009

DEBORAH AND DARNELL OKERSON, PETITIONERS AND APPELLANTS,
v.
THE COMMON COUNCIL OF THE CITY OF HOT SPRINGS, CARL OBERLITNER, IN HIS CAPACITY AS MAYOR, AND CHERYL WAIT, IN HER CAPACITY AS CITY FINANCE OFFICER, ALL IN THEIR REPRESENTATIVE CAPACITIES AND INCLUDING ANY SUCCESSORS IN INTEREST, RESPONDENTS AND APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT FALL RIVER COUNTY, SOUTH DAKOTA HONORABLE JEROME A. ECKRICH, III Judge.

The opinion of the court was delivered by: Konenkamp, Justice

CONSIDERED ON BRIEFS FEBRUARY 17, 2009

[¶1.] Deborah and Darnell Okerson petitioned the circuit court for a writ of mandamus to compel the Common Council of the City of Hot Springs, the Mayor and City Finance Officer (collectively Council) to submit to the voters a referendum on the settlement of a lawsuit concerning the construction of an addition to the golf course in the City of Hot Springs. The circuit court denied the writ. Because the stipulated facts presented to the circuit court do not support the grant of the writ, we affirm.

Background

[¶2.] The parties determined that no evidentiary hearing was necessary, and this matter was submitted to the circuit court on stipulated facts and exhibits.

The facts before the circuit court indicate as follows:

[¶3.] On June 17, 2002, the Council voted to enter into an agreement with Steve and Carla Simunek for the construction of an additional nine holes to the Hot Springs golf course. On July 1, 2002, the Council amended the agreement to add Kelvin Lorenz as a party to the development and construction of the addition. Both meetings were properly called and appropriate notice was given to the public. In 2006, the City of Hot Springs commenced litigation against the Simuneks, Lorenz and other entities involved in that project. To resolve that litigation the parties entered into a stipulation for settlement. The stipulation for settlement was signed by all parties and the Attorney General. The stipulation for settlement was also approved by the court handling the litigation.On February 19, 2008, the Council approved the settlement. In the settlement, the parties were to enter a land exchange, transfer certain land, make a lump sum payment of $625,000, close a rubble pit, move the city transfer station, and adopt appropriate zoning ordinances to lift a moratorium on building permits related to the golf course. One of the stated reasons for the settlement was because "the parties are desirous of fulfilling the terms of what they understand the original agreement was for the construction of the addition Nine Holes of the Golf Course."

[¶4.] Referendum petitions were filed seeking to challenge the approval of the settlement by the Council. The Council rejected the referendum petitions and subsequently amended the terms of the stipulation to reflect certain parcels of real estate in the land transfer. The amended stipulation for settlement was again approved by the parties, the Attorney General and the court. The Okersons filed a petition for a writ of mandamus seeking to compel the referendum vote.

[¶5.] The circuit court found that the 2002 decision to construct the additional nine holes to the golf course was a legislative act subject to referendum. However, no referendum petition was filed challenging that action. Significantly, the court found the terms of the 2002 agreement and the 2008 stipulation for settlement "consistent in all material respects" and that the stipulation for settlement "merely put into execution" the 2002 agreement. Further, the Okersons did not allege that the stipulation for settlement violated or was inconsistent with the 2002 agreement. Therefore, the circuit court determined that the referendum petitions related to a subsequent administrative action concerning the golf course settlement and was not subject to the referendum process. The circuit court denied the writ of mandamus. The Okersons appeal contending that the circuit court abused its discretion in denying mandamus relief.

Analysis and Decision

[¶6.] "Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right." Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 NW2d 240, 242. "To prevail in seeking a writ of mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty." Id.; see also Woodruff v. Bd. of Com'rs for Hand County, 2007 SD 113, ¶ 3, 741 NW2d 746, 747. "The circuit court has discretion in granting or denying a writ of mandamus. Consequently, the standard of review on appeal is abuse of discretion." Black Hills Cent. R. Co. v. City of Hill City, 2003 SD 152, ¶ 9, 674 NW2d 31, 34.

[¶7.] The facts, as set forth above, are those that appear in the rather limited record before the circuit court. In arguing that the circuit court abused its discretion, however, the Okersons insert in their appellate brief additional facts about the 2002 decision to develop the addition to the golf course. They assert that following the 2002 decision by the Council to proceed with the golf course construction, the Attorney General's office declared the Council's agreement invalid. No reasoning, explanatory facts, or evidence is provided related to that decision. These facts are introduced without adequate citation to any portion of the record and were not included in the stipulated facts the parties submitted to the circuit court. Notably, the Okersons' petition does not allege that the original agreement was void ab initio as they now contend on appeal. The Okersons also proposed no finding of fact or conclusion of law that the original agreement was void ab initio.

[¶8.] On appeal, the Okersons argue that because the agreement in 2002 was later ruled void by the Attorney General the action taken in 2008 was the first valid and binding decision on the construction of the golf course development by the Council. As a result, the Okersons assert that the settlement decision essentially became a "legislative" act. While this may be an interesting question, it was not the one presented to the circuit court. It is advanced here for the first time. The Okersons' position requires this Court to speculate on the legal relationship between the parties and the validity of the underlying agreement in contravention to the stipulated facts and settled record. Given the absence of any supportive record evidence or any indication this argument was presented to the circuit court, we will not address this issue for the first time on appeal. See Argus Leader v. Hagen, 2007 SD 96, ¶ 34, 739 NW2d 475, 484 (holding a claim not previously raised or ruled on by the circuit court was waived in an appeal from the denial of a writ of mandamus). The Okersons' argument suffers from the fatal flaw of being premised upon facts that are not contained within the settled record. "This Court has repeatedly instructed that the party claiming error carries the responsibility of ensuring an adequate record for review." State v. Andrews, 2007 SD 29, ¶ 9, 730 NW2d 416, 420.

[¶9.] An analysis of the facts as contained in the record is controlled by SDCL 9-20-19. That statute provides:

Any legislative decision of a governing body is subject to the referendum process. A legislative decision is one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision.

No administrative decision of a governing body is subject to the referendum process, unless specifically authorized by this code. An administrative decision is one that merely puts into execution a plan already adopted by the governing body itself or by the Legislature. Supervision of a program is an administrative decision. Hiring, disciplining and setting the salaries of employees are administrative decisions.

Based on the stipulated facts, the circuit court was correct determining that the decision made in 2002 to develop the addition to the golf course and specify terms was a "legislative" decision as defined in SDCL 9-20-19. That initial decision established a "rule of conduct or course of policy for the guidance of citizens or their officers" and was a matter of "permanent character." As such it was subject ...


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