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State, Department of Game v. Troy Township

Supreme Court of South Dakota

August 16, 2017

STATE OF SOUTH DAKOTA, DEPARTMENT OF GAME, FISH AND PARKS, Appellant,
v.
TROY TOWNSHIP, DAY COUNTY, SOUTH DAKOTA, Appellee. STATE OF SOUTH DAKOTA, DEPARTMENT OF GAME, FISH AND PARKS, Appellant,
v.
TROY TOWNSHIP, DAY COUNTY, SOUTH DAKOTA, Appellee. STATE OF SOUTH DAKOTA, DEPARTMENT OF GAME, FISH AND PARKS, Appellant,
v.
VALLEY TOWNSHIP, DAY COUNTY, SOUTH DAKOTA, Appellee. STATE OF SOUTH DAKOTA, DEPARTMENT OF GAME, FISH AND PARKS, Appellant,
v.
BUTLER TOWNSHIP, DAY COUNTY, SOUTH DAKOTA, Appellee.

          ARGUED ON APRIL 25, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT DAY COUNTY, SOUTH DAKOTA, THE HONORABLE JON S. FLEMMER Judge.

          RICHARD J. NEILL Special Assistant Attorney General Pierre, South Dakota and PAUL E. BACHAND Special Assistant Attorney General Pierre, South Dakota, Attorneys for appellant.

          JACK H. HIEB ZACHARY E. PETERSON of Richardson, Wyly, Wise Sauck & Hieb, LLP Aberdeen, South Dakota Attorneys for appellees.

          GILBERTSON, CHIEF JUSTICE.

         [¶1.] Troy, Valley, and Butler Townships' respective boards of supervisors vacated portions of several section-line highways in Day County. South Dakota's Department of Game, Fish, and Parks appealed these administrative actions to the circuit court, asserting the highways provided access to bodies of water held in trust by the State for the public. The circuit court affirmed in part and reversed in part, and the Department now appeals to this Court. The Department argues that: (1) by vacating the highways, the Townships denied public access to a public resource, (2) the highway vacations were not in the public interest, (3) the Townships' decisions were based on improper motives, (4) the Townships denied the Department due process, and (5) the circuit court incorrectly imposed the burden of proof on the Department. We affirm the circuit court's decision in regard to Valley and Butler Townships. We reverse and remand in regard to Troy Township.

         Facts and Procedural History

         [¶2.] "In 1871, the Dakota Territory Legislature passed an act [that] accepted Congress's dedication of all section lines as highways." Douville v. Christensen, 2002 S.D. 33, ¶ 11, 641 N.W.2d 651, 654 (citing Act of Jan. 12, 1871, 1870-71 Dakota Sess. Laws ch. 33). This provision carried forward into South Dakota's codified laws. Id. "There is along every section line in this state a public highway located by operation of law, except where some portion of the highway along such section line has been heretofore vacated or relocated by the lawful action of some authorized public officer, board, or tribunal." SDCL 31-18-1. One such board is a township board of supervisors. SDCL 31-3-6.

         [¶3.] This appeal involves the decisions of three townships in Day County: Troy, Valley, and Butler.[1] The Townships' respective boards of supervisors each approved petitions to vacate highway segments within their jurisdictions. As we recently explained in Duerre v. Hepler, 2017 S.D. 8, 892 N.W.2d 209, a number of nonmeandered bodies of water have accumulated on privately owned land in Day County. While some of the highway segments vacated by the Townships could be used to access these waters, the circuit court found that overall, the vacations did not materially alter access to the nonmeandered bodies of water.

         [¶4.] Troy Township approved two petitions to vacate a total of 22 highway segments within its jurisdiction. The first was submitted on May 13, 2014; the second, July 9. The segments do not aid in traversing the Township; in fact, most of the segments are submerged, in disrepair, or unimproved. While some could provide public access to nonmeandered bodies of water, the highways at issue primarily provide access to land adjoining the highways, and other highways that provide access to those bodies of water remain open.

         [¶5.] The petitions were prepared by the Township's clerk and given to a Township resident for circulation. Each petition was signed by six Township voters and verified by all three members of the Troy Township Board of Supervisors: Chairman Thad Duerre and Supervisors Larry Herr and Daniel Grode. The Township scheduled a public hearing for May 27 to consider the first petition and published notice of the hearing on May 19 and 26. The Department contacted the Township on May 19 and objected to several of the proposed vacations, claiming that those highways led to the Lily Game Production Area (GPA). At the May 27 hearing, the Township decided to table the petition for approximately 30 days. The Township published notice on June 16 and 23 for the subsequent hearing scheduled for June 26. At the second hearing, which the Department did not attend, the Township voted to vacate 12 highway segments out of the 15 proposed in the petition.

         [¶6.] The Township scheduled a public hearing for July 22 to consider the second petition and published notice of the hearing on July 14 and 21. On July 15, the Department contacted the Township regarding the second petition and objected to several of the proposed vacations. According to the Department, the highways at issue also led to the Lily GPA as well as to two U.S. Fish and Wildlife Service waterfowl production areas. A representative of the Department attended the July 22 hearing. The Township voted to vacate eight additional highway segments.

         [¶7.] Valley Township approved one petition, which was submitted on July 21, 2014, to vacate ten highway segments within its jurisdiction. The Township scheduled a public hearing for August 5 to consider the petition and published notice on July 28 and August 4. The Department did not contact the Township regarding the petition, and the Township did not receive any objections to the petition. Neither the petitioners nor the Department attended the hearing. Valley Township approved all ten vacations proposed in the petition.

         [¶8.] Butler Township approved one petition, which was submitted on July 29, 2014, to vacate 13 highway segments within its jurisdiction. The Township scheduled a public hearing for August 11 and published notice of the hearing on August 4 and 11.[2] The Department sent a letter to the Township on August 6, objecting to the entire petition. The Township also received a written objection from several local residents, who asked the Township to leave open highway segments they used to access their properties. The Township agreed and removed two proposed vacations from consideration. At the August 11 hearing, the Butler Township Board of Supervisors approved 10 of the 13 vacations proposed in the petition.

         [¶9.] The Department appealed the Townships' resolutions to the circuit court, arguing that vacating the highway segments did not better serve the public interest and that the Townships' conclusions otherwise were arbitrary. The Department also claimed the Townships violated its right to due process in a number of ways. The court granted summary judgment in favor of the Department on two of Troy Township's vacations because they involved a shared highway with a neighboring township that had not passed a corresponding resolution vacating the same highway segments. The court then conducted a de novo hearing on the Townships' actions and affirmed the remaining vacations.

         [¶10.] The Department appeals, raising five issues:

1. Whether the Department had the burden of proof in its appeal before the circuit court.
2. Whether vacating the highways will better serve the public interest.
3. Whether vacating the highways denied public access to a public resource.
4. Whether the Townships' decisions to vacate segments of the section-line highways were arbitrary.
5. Whether the Townships denied the Department due process.

         Analysis and Decision

         [¶11.] 1. Whether the Department had the burden of proof in its appeal before the circuit court.

         [¶12.] The Department first argues that in its appeal to the circuit court, the court incorrectly imposed the burden of proof on the Department. SDCL 8-5-8 permits an appeal to a circuit court "[f]rom all decisions, orders, and resolutions of the boards of supervisors of townships . . . by any person aggrieved thereby[.]" Under SDCL 8-5-10, such an appeal "shall be heard and determined de novo." The term hearing de novo means "[a] new hearing of a matter, conducted as if the original hearing had not taken place." Hearing, Black's Law Dictionary (10th ed. 2014). Because a township may vacate a highway only after it affirmatively determines that doing so will better serve the public interest, SDCL 31-3-6, the Department reasons that the Townships would have had the burden of proving the same before the circuit court.

         [¶13.] The Department's reasoning assumes that the Department had a right to appeal and that the applicable standard of review on appeal was de novo.[3] But answering these questions is not as simple as noting that SDCL 8-5-10 prescribes de novo review. This Court, like its predecessor, has long recognized that the separation-of-powers doctrine precludes de novo review of administrative action that is not quasi-judicial. One line of cases involving administrative appeals preserves the separation of powers by restricting the right to appeal to quasi-judicial acts only. Another line recognizes a right to appeal non-quasi-judicial acts but employs only limited review on appeal. Since the 1970s, however, some of this Court's decisions have blurred the distinction between quasi-judicial and non-quasi-judicial acts. Today we reassert the separation-of-powers doctrine. As explained more fully below, we hold that de novo review is not constitutionally permissible in this case and that the Department has the burden of proof.

         [¶14.] It is axiomatic that statutory authorization cannot override constitutional limitations on judicial power. Under the separation-of-powers doctrine, a court may not "exercise or participate in the exercise of functions which are essentially legislative or administrative." Fed. Radio Comm'n v. Gen. Elec. Co., 281 U.S. 464, 469, 50 S.Ct. 389, 390, 74 L.Ed. 969 (1930); see also Dunker v. Brown Cty. Bd. of Educ., 80 S.D. 193, 203, 121 N.W.2d 10, 16-17 (1963); Codington Cty. v. Bd. of Comm'rs, 51 S.D. 131, 135-36, 212 N.W. 626, 627-28 (1927); Pierre WaterWorks Co. v. Hughes Cty., 5 Dakota 145, 163-64, 37 N.W. 733, 740 (1888). Therefore, "executive or administrative duties of a nonjudicial nature may not be imposed on judges[, ]" Buckley v. Valeo, 424 U.S. 1, 123, 96 S.Ct. 612, 684, 46 L.Ed.2d 659 (1976) (per curiam), "either directly or by appeal[, ]" Keller v. Potomac Elec. Power Co., 261 U.S. 428, 444, 43 S.Ct. 445, 449, 67 L.Ed. 731 (1923). "The purpose of this limitation is to help ensure the independence of the Judicial Branch and to prevent the Judiciary from encroaching into areas reserved for the other branches." Morrison v. Olson, 487 U.S. 654, 677-78, 108 S.Ct. 2597, 2612, 101 L.Ed.2d 569 (1988).

         [¶15.] Both this Court and its predecessor have applied the separation-of- powers doctrine in determining the level of judicial review permitted in an appeal of administrative action. The Supreme Court of Dakota Territory first addressed the issue in Pierre Water-Works Co. v. Hughes County, 5 Dakota 145, 37 N.W. 733 (1888). In that case, the Hughes County Board of Commissioners increased the tax assessment of Pierre Water-Works' property, and Pierre Water-Works appealed. Id. at 150-51, 37 N.W. at 733. Chapter 21, § 46, of Dakota Territory's Political Code permitted an appeal by any person aggrieved by a "decision" of the board, and § 49 prescribed a de novo hearing on appeal. Pierre Water-Works, 5 Dakota at 162, 37 N.W. at 739.[4] Recognizing that "the great powers of the government-the legislative, executive, and judicial-[must] be separately exercised by the departments in which such power is expressly lodged, " the court noted:

The powers given to the board of county commissioners . . . are very comprehensive; and include, not only those of an administrative and executive character, but those of a legislative and quasi judicial character as well. And it may well be questioned whether the legislature, in giving an appeal from the decisions of the board, intended to make the court a board of county commissioners, and on appeal to require it de novo to hear and determine matters of a political and administrative character, which appeal directly to the judgment and discretion of the commissioners. Such is not the province of courts. . . . "Hence we . . . suppose that appeals from the board of county commissioners to the district court must be limited to such cases as require the exercise of purely judicial power, and therefore that, when the board of county commissioners exercises political power or legislative power or administrative power or discretionary power or purely ministerial power, no appeal will lie."

Id. at 163-65, 37 N.W. at 739-40 (quoting Fulkerson v. Stevens, 1 P. 261, 263 (Kan. 1883)). The court concluded that the issue was quasi-judicial and that the appeal was therefore constitutionally permissible. Id. at 166-67, 37 N.W. at 741; see also Champion v. Bd. of Cty. Comm'rs, 5 Dakota 416, 429-30, 41 N.W. 739, 742 (1889).

         [¶16.] This Court adopted the same reasoning in Codington County v. Board of Commissioners, 51 S.D. 131, 212 N.W. 626 (1927). In that case, Codington County attempted to appeal its board of commissioners' selection of a particular architect to design and build a courthouse. Id. at 132, 212 N.W. at 626. As in Pierre Water-Works Co., we said:

If the action appealed from is quasi judicial, then the court on appeal can do what it finds the board should have done, but, if the action appealed from is not quasi judicial, then the court, upon appeal, cannot substitute its judgment for that of the board. If the Legislature had expressly provided that upon appeal in this proceeding the court might have determined the architect to be selected, such a provision ...

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