Repealed by SL 1983, ch 7.
Repealed by SL 1995, ch 8, §§ 14, 15.
1-26-18.3. Request to use Office of Hearing Examiners in certain contested cases.
In any contested case, if the amount in controversy exceeds two thousand five hundred dollars or if a property right may be terminated, any party to the contested case may require the agency to use the Office of Hearing Examiners by giving notice of the request no later than ten days after service of a notice of hearing issued pursuant to § 1-26-17. This section does not apply to any contested case before the Public Utilities Commission.
Source: SL 1995, ch 8, § 18; SL 2003, ch 18, § 1; SL 2007, ch 7, § 2.
1-26-19. Rules of evidence in contested cases.
In contested cases:
(1) Irrelevant, incompetent, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied under statutory provisions and in the trial of civil cases in the circuit courts of this state, or as may be provided in statutes relating to the specific agency, shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not otherwise admissible thereunder 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. Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;
(2) A party may conduct cross-examinations required for a full and true disclosure of the facts;
(3) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. Parties present at the hearing shall be informed of the matters to be noticed, and those matters shall be noted in the record, referred to therein, or appended thereto. Any such party shall be given a reasonable opportunity on request to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the agency.
Source: SL 1966, ch 159, § 10; SL 1972, ch 8, § 20; SL 1985, ch 15, § 9.
1-26-19.1. Administration of oaths--Subpoena powers--Witness fees--Disobedience of subpoena.
Each agency and the officers thereof charged with the duty to administer the laws of this state and rules of the agency shall have power to administer oaths as provided by chapter 18-3 and to subpoena witnesses to appear and give testimony and to produce records, books, papers and documents relating to any matters in contested cases and likewise issue subpoenas for such purposes for persons interested therein as provided by § 15-6-45. Unless otherwise provided by law fees for witnesses shall be as set forth in chapter 19-5 and be paid by the agency or party for whom the witness is subpoenaed.
Failure of a person to obey the subpoena issued pursuant to this chapter may be punished as a contempt of court in the manner provided by chapter 21-34.
Source: SL 1972, ch 8, § 21.
1-26-19.2. Depositions of witnesses.
Each agency and the officers thereof charged with the duty to administer the laws and rules of the agency shall have power to cause the deposition of witnesses residing within or without the state or absent therefrom to be taken or other discovery procedure to be conducted upon notice to the interested person, if any, in like manner that depositions of witnesses are taken or other discovery procedure is to be conducted in civil actions pending in circuit court in any matter concerning contested cases.
Source: SL 1972, ch 8, § 22.
1-26-20. Agreed disposition of contested cases.
Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.
Source: SL 1966, ch 159, § 9 (4).
1-26-21. Contents of record in contested cases.
The record in a contested case shall include:
(1) All pleadings, motions, intermediate rulings;
(2) Evidence received and considered;
(3) A statement of matters officially noticed which have been refuted;
(4) Questions and offers of proof, objections, and rulings thereon;
(5) Proposed findings and exceptions;
(6) Any decision, opinion, or report by the officer presiding at the hearing;
(7) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case.
Source: SL 1966, ch 159, § 9 (5); SL 1972, ch 8, § 23.
1-26-22. Transcript in contested cases--Minutes in lieu of transcript.
Whenever a party requests in writing that oral proceedings be transcribed, a verbatim record of all proceedings and testimony shall be kept by the agency. Unless otherwise provided by law the agency shall not be required to transcribe the record unless the requesting party tenders and pays the reasonable cost thereof. If transcribed, a copy of the record shall be furnished to any other party to the hearing at the request and expense of such other party. If no verbatim record is transcribed, the agency shall prepare minutes of the hearing. The minutes shall consist of a written summary of the evidence and proceedings.
Source: SL 1966, ch 159, § 9 (6); SL 1972, ch 8, § 24; SL 1978, ch 13, § 7.
1-26-23. Basis for findings in contested cases.
Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
Source: SL 1966, ch 159, § 9 (7).
1-26-24. Tentative or proposed decision served on parties--Contents--Waiver.
When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a tentative or proposed decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The tentative or proposed decision shall contain a statement of the reasons therefor and findings of fact on each issue and conclusions of law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this section.
Source: SL 1966, ch 159, § 11; SL 1972, ch 8, § 25.
1-26-25. Form, contents and notice of decisions, orders and findings.
A final decision or order adverse to a party in a contested case shall be in writing or stated in the record. It may affirm, modify, or nullify action previously taken or may direct the taking of new action within the scope of the notice of hearing. It shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be notified either personally or by mail of any decision or order. Upon request a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record.
Source: SL 1966, ch 159, § 12; SL 1978, ch 13, § 8.
1-26-26. Ex parte communications by agency personnel in contested cases--Investigating officer disqualified from decision making--Authorized communications.
Unless required for the disposition of ex parte matters authorized by law, members of the governing board or officers or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case may not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or the party's representative, except upon notice and opportunity for all parties to participate. If one or more members of a board or commission or a member or employee of an agency, who is assigned to render a decision in a contested case, took part in an investigation upon which the contested case is based, the member or employee may not participate in the conduct of the hearing nor take part in rendering the decision on the contested case. However, the member or employee may appear as a witness and give advice as to procedure. If, because of the disqualification, there is no person assigned to conduct the hearing or render the decision, the agency shall appoint a person to fulfill those duties. A person assigned to render a decision:
(1) May communicate with other members of the agency; and
(2) May have the aid and advice of one or more personal assistants.
Source: SL 1966, ch 159, § 13; SL 1974, ch 16, § 9; SL 1975, ch 17, § 10; SL 2015, ch 4, § 2.
1-26-27. License proceeding treated as contested case.
When the grant, denial, or renewal of a license is required to be preceded by notice and opportunity for hearing, or an applicant, a party or an agency requests a hearing, the provisions of this chapter concerning contested cases apply.
Source: SL 1966, ch 159, § 14 (1); SL 1973, ch 10.
1-26-28. Extension of existing license or right to continue activity extended during renewal or licensing proceedings and for ten days following notice of determination.
If a licensee has made timely and sufficient application for renewal of a license or a new license with reference to any activity of a continuing nature, the existing license, or a right to continue the activity, does not expire until the application has been finally determined by the agency and for ten days following receipt, or failure to accept delivery, of notice of such determination by the licensee.
Source: SL 1966, ch 159, § 14 (2); SL 1988, ch 14, § 1.
1-26-29. Notice and hearing required for revocation or suspension of license--Emergency suspension.
No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively require emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.
Source: SL 1966, ch 159, § 14 (3).
1-26-29.1. Costs of disciplinary hearing.
After conducting a contested case proceeding that results in discipline or censure of a licensee, suspension or revocation of a licensee's license, or denial of a license to an applicant, a professional or occupational board or commission established pursuant to Title 36 may assess all or part of its actual expenses for the proceeding against the licensee or applicant.
Source: SL 1993, ch 18.
1-26-30. Right to judicial review of contested cases--Preliminary agency actions.
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. If a rehearing is authorized by law or administrative rule, failure to request a rehearing will not be considered a failure to exhaust all administrative remedies and will not prevent an otherwise final decision from becoming final for purposes of such judicial review. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, or relief, when provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
Source: SL 1966, ch 159, § 15 (1); SL 1972, ch 8, § 26; SL 1977, ch 13, § 12; SL 1978, ch 13, § 9; SL 1978, ch 15.
1-26-30.1. Right of appeal when agency fails to act in contested case.
The failure of any agency to make and file a decision within a period of thirty days after any matter has been finally submitted to it, entitles a person authorized to appeal from the record then existing as if the decision had been made adversely to him in whole or in part, unless within such time the agency shall make and serve upon all the parties to the record, an order extending such time for an additional period of not to exceed sixty days, which order shall state the grounds or reasons why such extension is necessary. At the expiration of the thirty days or the time to which extended by such order, such person may present to the agency a proposed decision, and if the same is not adopted within five days after presentation for filing, such person may appeal the same as if such proposed decision had been denied. This section does not apply to contested cases determined by the Public Utilities Commission.
Source: SDC 1939 & Supp 1960, § 33.4202; SDCL, § 21-33-2; SL 1972, ch 8, § 27; SL 1975, ch 17, § 2; SL 1986, ch 27, § 3.
1-26-30.2. Appeal from final action in contested case.
An appeal shall be allowed in the circuit court to any party in a contested case from a final decision, ruling, or action of an agency.
Source: SL 1975, ch 17, § 1.
1-26-30.3. Conduct of appeals.
Notwithstanding any other provision of law, all appeals authorized by § 1-26-30.1 or 1-26-30.2 shall be taken and conducted pursuant to the provisions of this chapter.
Source: SL 1975, ch 17, § 2.
1-26-30.4. Scope of sections on appeals to circuit courts.
The sections of this chapter on appeals to circuit courts shall govern civil appeals to the circuit courts of South Dakota from final decisions, rulings, or actions of agencies pursuant to chapter 1-26.
Source: Supreme Court Rule 82-35.
1-26-30.5. Suspension of sections on appeals to circuit courts.
In the interest of expediting decisions in cases of pressing concern to the public or to litigants, or for good cause shown, the circuit court may suspend the requirement or provisions of these rules on application of a party or on its own motion and may order proceedings in accordance with its direction.
Source: Supreme Court Rule 82-35.
1-26-31. Notice of appeal--Time for service and filing.
An appeal shall be taken by serving a copy of a notice of appeal upon the adverse party, upon the agency, and upon the hearing examiner, if any, who rendered the decision, and by filing the original with proof of such service in the office of the clerk of courts of the county in which the venue of the appeal is set, within thirty days after the agency served notice of the final decision or, if a rehearing is authorized by law and is requested, within thirty days after notice has been served of the decision thereon. Failure to serve notice of the appeal upon the hearing examiner does not constitute a jurisdictional bar to the appeal.
Source: SDC 1939 & Supp 1960, § 33.4208; SL 1966, ch 159, § 15(2); SDCL, § 21-33-5; SL 1972, ch 8, §§ 28, 32; SL 1974, ch 16, § 10; SL 1975, ch 17, § 3; SL 1979, ch 8, § 4; SL 1999, ch 7, § 1; SL 2004, ch 23, § 1.
1-26-31.1. Venue of appeal.
The venue of the appeal is as follows:
(1) If the appellant is a resident of this state, to the circuit court for the county of the appellant's residence or to the circuit court for Hughes County, as the appellant may elect;
(2) If the appellant is a nonresident or a foreign corporation, to the circuit court for the county of appellant's principal place of business in South Dakota or to the circuit court for Hughes County as the appellant may elect;
(3) The parties may stipulate for venue in any county in the state, and the circuit court for such county shall thereupon hear the appeal;
(4) An appeal from a final decision, ruling, or action rendered by an administrative appeals process adopted by a home-rule municipality shall be appealed to the circuit court in which the home-rule municipality is located.
Appeals from a single administrative action may not proceed in more than one county. If multiple appeals of a single action are filed in more than one county, the appeals shall be consolidated and heard in the county in which the appeal is first filed. If more than one appeal is first filed on the same date and a stipulation among the parties as to venue cannot be reached, the venue of the appeal is in the circuit court for Hughes County.
Source: SDC 1939 & Supp 1960, § 33.4207; SDCL § 21-33-7; SL 1975, ch 17, § 5; SL 1983, ch 8, § 1; SL 2004, ch 24, § 1; SL 2012, ch 7, § 2.
1-26-31.2. Contents of notice of appeal.
The notice of appeal shall contain the names of the parties and the county to which the appeal is taken; it shall designate in plain and concise language the order or decision from which the appeal is taken; and it shall be dated and signed by the appellant or his attorney.
Source: SDC 1939 & Supp 1960, § 33.4209; SDCL, § 21-33-6; SL 1975, ch 17, § 4; SL 1977, ch 13, § 13.
1-26-31.3. Change of venue.
The circuit court to which the appeal is first taken may, upon good cause shown and upon such terms or provisions for expense as it may deem reasonable in favor of any party objecting, and on application and notice within thirty days after the appeal is taken, change the venue to the circuit court for any other county.
Source: SDC 1939 & Supp 1960, § 33.4207; SDCL, § 21-33-8; SL 1975, ch 17, § 6; SL 1999, ch 8, § 1; SL 2000, ch 5, § 1.
1-26-31.4. Contested cases--Statement of issues on appeal.
Within ten days after the filing of the notice of appeal as required by § 1-26-31, the appellant shall file with the clerk of the circuit court a statement of the issues the appellant intends to present on appeal and shall serve on the other parties a copy of that statement. If any other appellant wishes to raise additional issues on appeal, the other appellant shall file a statement of additional issues on appeal within ten days after service of the appellant's statement.
Source: Supreme Court Rule 82-35; SL 2008, ch 280 (Supreme Court Rule 07-01), eff. Jan. 1, 2008; SL 2019, ch 4, § 1.
1-26-32. When agency decision in contested case becomes effective--Application for stay pending appeal--Time--Granting of further stay--Security or other supervision--Inapplicability to determinations of benefits under Title 61.
Any agency decision in a contested case is effective ten days after the date of receipt or failure to accept delivery of the decision by the parties. An application to the circuit court for a stay of the agency's decision may be made only within ten days of the date of receipt or failure to accept delivery of the agency's decision. Upon receiving a timely application for a stay and notice of hearing thereon, the court may enter a temporary stay pending a hearing on the application. Following a hearing, the court may order a further stay, pending final decision of the court. The court, as a condition to granting a stay, may require the appellant to furnish a bond or other such security or order supervision as the court may direct to indemnify or protect the state or agency or any person from loss, damage, or costs which may occur during the stay. This section does not apply to determinations of benefits made by the Department of Labor and Regulation pursuant to Title 61.
Source: SDC 1939 & Supp 1960, § 33.4215; SL 1966, ch 159, § 15 (3); SDCL § 21-33-10; SL 1972, ch 8, § 33; SL 1975, ch 17, § 7; SL 1988, ch 14, § 2; SL 1999, ch 7, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
1-26-32.1. Procedural rules applied.
The sections of Title 15 relating to practice and procedure in the circuit courts shall apply to procedure for taking and conducting appeals under this chapter so far as the same may be consistent and applicable, and unless a different provision is specifically made by this chapter or by the statute allowing such appeal.
Source: SDC 1939 & Supp 1960, § 33.4204; SDCL, § 21-33-13; SL 1975, ch 17, § 8.
1-26-32.2. Request for transcript--Waiver by failure to request.
Within ten days after the filing of the notice of appeal, the appellant shall order from the agency or reporter, if present, a written transcript of the proceedings or such parts thereof as he deems necessary of the contested case hearing. The order shall be in writing and a copy thereof shall be served on all parties to the action and a copy shall be filed with the clerk of the circuit court. Failure to order a transcript within the ten-day period shall constitute a waiver of the right to such a transcript.
If the appellee deems a transcript of other parts of the proceedings necessary, he shall, within ten days after the service of the appellant's request or statement of issues, file with the clerk of the circuit court and serve upon the appellant a request for a transcript of additional parts to be included in the transcript of the contested case hearing. Failure to order such additional parts of the transcript shall constitute a waiver of the right to such additional parts of the transcript.
Source: Supreme Court Rule 82-35; Supreme Court Rule 89-1A.
1-26-32.3. Costs of transcript--Endorsement of order by reporter--Extension of time for transcript.
At the time of ordering a transcript of the contested case hearing a party, other than an agency, must make satisfactory arrangements with the agency or reporter, if present, for the payment of the costs of the transcript and all necessary copies. The agency or reporter shall acknowledge at the foot of the order receipt of the request for the transcript and transmit the order to the clerk of the circuit court. If the transcript cannot be completed within thirty days, the agency or reporter shall request an extension of time from the circuit court judge assigned to the appeal and the action of the circuit court judge shall be entered on the record and the parties notified.
Source: Supreme Court Rule 82-35; Supreme Court Rule 89-2.
1-26-32.4. Form of transcript--Number of copies--Certification.
The original transcript of the contested case hearing will be filed with the clerk of the circuit court and copies transmitted to the attorney for each party to the appeal separately represented and directly to any parties not represented. The agency will make duplicate copies of items specified in § 1-26-21 that are requested and shall transmit copies to the attorney for each party to the appeal separately represented and directly to any parties not represented. In the event that more than three copies of the transcript and other items as specified in § 1-26-21 are necessary to comply with the foregoing requirement, the appellant may make application, upon notice, to the circuit court for an order determining the number of copies to be served and the time of use by the parties. Copies of the transcript and items specified in § 1-26-21 may be reproduced by any duplicating or copying process which produces a clear black image on white paper, if a typewritten transcript is prepared. The reporter or agency shall certify the correctness of the original and all copies of the transcript. The agency or reporter shall notify the clerk of the circuit court in writing that the original transcript has been filed and copies transmitted.
Source: Supreme Court Rule 82-35; Supreme Court Rule 89-3.
1-26-33. Record transmitted to circuit court--Limitation of record--Corrections and additions.
Within thirty days after the service of the notice of appeal, or within further time allowed by the court, the agency shall transmit to the reviewing court the electronic copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
It shall be the duty of the agency to assemble and consecutively number the pages of all documents, papers, and exhibits filed with the agency, including any opinions and decisions which the agency may have filed or authorized for filing. The agency shall then prepare and attach an alphabetical and chronological index to the electronic record and shall serve a copy of such index on all parties to the review proceedings at the time the record is submitted to the reviewing court. If any portions of the record are not legible or are altered when converted to an electronic image they must be provided in hardcopy format.
Source: SL 1966, ch 159, § 15 (4); SL 1977, ch 13, § 14; SL 1987, ch 396 (Supreme Court Rule 86-36); SL 2018, ch 293 (Supreme Court Rule 18-02), eff. July 1, 2018.
Transferred to § 1-26-33.6.
1-26-33.2. Time for serving briefs.
Unless otherwise ordered by the circuit court, the appellant shall serve a brief within thirty days after the delivery of the transcript of the contested case hearing to counsel for the parties or to the parties if unrepresented by counsel or within thirty days after the agency record is transmitted to the circuit court pursuant to § 1-26-33, whichever event occurs later. The appellee shall serve a brief within thirty days after the service of the brief of appellant, or in the case of multiple appellants, within thirty days after service of the last appellant's brief. The appellant may serve a reply brief within ten days after service of appellee's brief, or in the case of multiple appellees, within ten days after service of the last appellee's brief. Pursuant to § 15-6-5(d), briefs may not be made a part of the record.
Source: Supreme Court Rule 82-35; Supreme Court Rule 89-4; SL 1999, ch 7, § 3.
1-26-33.3. Brief of appellant--Contents.
The brief of the appellant shall contain under appropriate headings in the order here indicated:
(1) A jurisdictional statement setting forth the date and the form of the agency decision, ruling or action sought to be reviewed and the date when the notice of appeal was filed with the circuit court.
(2) A concise statement of the legal issue or issues involved omitting unnecessary detail. Each issue shall be stated as an appellate court would state the broad issue presented. Each issue shall be followed by concise statement of how the agency decided it. Any issue not presented in the brief is deemed waived.
(3) A statement of the case and facts. A statement of the case shall first be presented identifying the agency and indicating briefly the nature of the case and its disposition by the agency. There shall follow a statement of facts relevant to the grounds urged for reversal, modification or other relief.
(4) An argument. The argument shall contain the contentions of the party with respect to the issues presented, the reasons therefor, and the citations to the authorities relied on. Each issue shall be separately presented. Needless repetition shall be avoided.
(5) A short conclusion stating the precise relief sought.
(6) Appendix, if any. Such appendix may include the decision, ruling, or action in question and any regulations or any relevant parts to which the parties wish to direct the particular attention of the circuit court.
(7) Request for oral argument, if desired.
Source: Supreme Court Rule 82-35.
1-26-33.4. Brief of appellee--Contents.
The brief of the appellee shall conform to the same requirements as the brief of the appellant, except that the jurisdictional statement, statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statements made by the appellant. If a notice of review is filed, the appellee's brief shall contain the issues specified in the notice of review and the argument thereon as well as the answer to the brief of the appellant.
Source: Supreme Court Rule 82-35.
Repealed by SL 1996, ch 158, § 44.
1-26-33.6. Speedy hearing and determination.
Upon the filing of the record and other papers in the office of the clerk of the circuit court, it shall be the duty of such court when its attention is called to the matter by the parties, or one of them, immediately to fix a date for hearing, and said cause shall be speedily heard and determined.
Source: SDC 1939 & Supp 1960, § 33.4212; SDCL, § 21-33-15; SL 1972, ch 8, § 34; SDCL Supp 1-26-33.1; SL 1975, ch 17, § 9.
1-26-34. Circuit court may order agency to take additional evidence.
If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
Source: SL 1966, ch 159, § 15(5); SL 1987, ch 29, § 62.
1-26-35. Nonjury review in circuit court--Proof of irregularities--Oral argument discretionary.
The review shall be conducted by the court without a jury and shall be confined to the record. A trial de novo may not be granted unless otherwise authorized by law, but in cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, may hear oral argument.
Source: SL 1966, ch 159, § 15 (6); SL 1977, ch 13, § 15; SL 1978, ch 16; SL 1996, ch 158, § 45.
1-26-36. Weight given to agency findings--Disposition of case--Grounds for reversal or modification--Findings and conclusions--Costs.
The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in light of the entire evidence in the record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
A court shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment. The circuit court may award costs in the amount and manner specified in chapter 15-17.
Source: SL 1966, ch 159, § 15 (7); SL 1972, ch 8, § 29; SL 1977, ch 13, § 16; SL 1978, ch 13, § 10; SL 1978, ch 17; SL 1983, ch 6, § 2.
1-26-36.1. Appellee's right to obtain review.
An appellee may obtain review of a final decision, ruling, or action of any agency which may adversely affect the appellee by filing a notice of review with the clerk of the circuit court within twenty days after service of the notice of appeal. If a statement of additional issues on appeal is filed pursuant to § 1-26-31.4, the notice of review required by this section must be filed within twenty days after the latest statement of additional issues on appeal is filed. The clerk of the circuit court shall not accept for filing such notice of review unless accompanied by proof of service of such notice on all other parties. The notice of review shall specify the decision, ruling, or action of the agency to be reviewed.
Source: Supreme Court Rule 82-35; SL 2019, ch 4, § 2.
1-26-37. Appeal to Supreme Court.
An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law, and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.
Source: SL 1966, ch 159, § 16; SL 1972, ch 8, § 30; SL 1983, ch 6, § 1.
1-26-38. Suspension of provisional rules by interim committee--Hearing on suspension--Filing and duration of suspension.
The Interim Rules Review Committee may, by an affirmative vote of not less than a majority of the members of the committee, suspend provisional rules or rules which have not become effective. To suspend a rule, the committee shall:
(1) Give the agency which promulgated the rule at least two weeks notice of a hearing on the proposed suspension;
(2) Hold a hearing, which may be in conjunction with a regular committee meeting. At the hearing, the burden of proof that the rule is necessary and does not violate any constitutional or statutory provision or the legislative intent when authority to promulgate the rule was given, is on the agency;
(3) File an appropriate resolution of such action with the secretary of state.
The suspension is effective from the date of such filing. A suspended rule shall remain suspended until July first of the year following the year in which it became, or would have become, effective, and may not be enforced during that period.
Source: SL 1966, ch 159, § 17; repealed SL 1972, ch 8, § 36; re-enacted SL 1975, ch 19; SL 1978, ch 13, § 11; SL 2003, ch 17, § 3.
1-26-38.1. Amendment as provisional--Subject to suspension--Effect.
If an agency amends an existing rule, the amendment becomes provisionally effective and subject to § 1-26-38. The effect of suspending a provisionally effective amendment is to return the rule to its form prior to the amendment.
Source: SL 1980, ch 18.
Back to Title 1
Repealed by SL 1972, ch 8, § 36.
1-26-40. Severability of provisions.
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and for this purpose the provisions of this chapter are severable.
Source: SL 1966, ch 159, § 18.
1-26-41. Citation of chapter.
This chapter may be cited as the South Dakota Administrative Procedures Act.
Source: SL 1977, ch 13, § 17.