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Olson v. Butte County Commission

Supreme Court of South Dakota

March 13, 2019

ABBY OLSON, BEN BLAKE, and JODI L. MASSIE, Appellants,
v.
BUTTE COUNTY COMMISSION, Appellee, and CHRIS KLING, Intervenor and Appellee.

          ARGUED ON JANUARY 9, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT BUTTE COUNTY, SOUTH DAKOTA THE HONORABLE MICHELLE K. COMER Judge

          DYLAN A. WILDE Spearfish, South Dakota

          JOHN R. FREDERICKSON Deadwood, South Dakota Attorneys for appellant.

          CASSIE WENDT Butte County State's Attorney Belle Fourche, South Dakota ROBERT L. MORRIS Attorneys for appellee Belle Fourche, South Dakota Butte County Commission

          KELLEN B. WILLERT MAX S. MAIN of Bennett, Main, Gubbrud & Willert, P.C. Attorneys for intervenor and Belle Fourche, South Dakota appellee Chris Kling.

          SEVERSON, RETIRED JUSTICE.

         [¶1.] After considering a petition to vacate a public roadway and section line in Butte County, the County Commission entered a resolution vacating the road. Ben Blake, Jodi Massie, and Abby Olson (hereinafter collectively referred to as "Olson") jointly appealed the Commission's decision to the circuit court. The circuit court dismissed the appeal as untimely. We reverse and remand.

         Background

         [¶2.] On November 20, 2017, the Butte County Auditor received a petition requesting that the Butte County Commission vacate a certain public roadway and section line. The Commission gave notice by publication of a public hearing on the petition and held the hearing on January 11, 2018. After the hearing, the Commission received a letter requesting that the Commission not vacate a portion of the section line. The Commission considered the petition and the letter at its February 6 meeting and voted to approve the petition to vacate the public roadway and section line. The Commission, by resolution, entered an order to that effect and published the resolution and order on February 16 and February 23, 2018.

         [¶3.] On March 27, 2018, Olson appealed the Commission's decision to vacate the public roadway and section line. Olson served notice of appeal on Commissioner Stan Harm. Chris Kling intervened and filed a motion to dismiss the appeal as untimely, asserting it was not filed within thirty days of the last date of publication (between February 23 and March 26). The County joined Kling's motion. In response, Olson argued the appeal was timely because it was filed within thirty days of the effective date of the Commission's decision. In Olson's view, the Commission's decision became effective on March 26, thereby commencing the time to appeal under SDCL 31-3-34.

         [¶4.] After a hearing, the circuit court granted the motion to dismiss, concluding that Olson's time to appeal had expired (not commenced) on March 26. Olson appeals, asserting the circuit court erred when it dismissed the appeal as untimely.

         Analysis

         [¶5.] The facts of this case are undisputed, and we need only engage in statutory interpretation and construction. "[W]e adhere to two primary rules of statutory construction. The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction." Goetz v. State, 2001 S.D. 138, ΒΆ 15, 636 N.W.2d 675, 681. When, however, "statutory construction is required 'statutes must be construed according to their intent, [and] the intent must be determined from the statute as a whole, as well as enactments relating ...


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