#25698, #25715-a-GAS

2011 S.D. 48

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                  * * * *

DANIEL DAILY,                                  Plaintiff and Appellee,

 v.

CITY OF SIOUX FALLS,                           Defendant and Appellant.

                                  * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                  * * * *

                  HONORABLE KATHLEEN K. CALDWELL
                              Judge

                                   * * * *
RONALD A. PARSONS, Jr. of
Johnson, Heidepriem & Abdallah, LLP
Sioux Falls, South Dakota
 and
CHARLES L. DOROTHY
Sioux Falls, South Dakota                      Attorneys for plaintiff
                                               and appellee.

MICHAEL A. HENDERSON
WILLIAM C. GARRY of
Cadwell, Sanford, Deibert
 & Garry, LLP
Sioux Falls, South Dakota                      Attorneys for defendant
                                               and appellant.

                                    * * * *

                                              ARGUED APRIL 26, 2011

                                              OPINION FILED 08/24/11
#25698, #25715

SEVERSON, Justice

[¶1.]        Over a period of two years, the City of Sioux Falls issued Daniel Daily

four citations for a concrete extension to his driveway. Daily appealed each of the

citations, but a hearing was held only on the final two citations he received. The

hearing examiner upheld the final two citations. Daily then initiated this

declaratory judgment action against the City. After a four-day trial, the trial court

concluded that the City’s administrative appeals process, both as written and as

applied, as well as the enforcement of its zoning ordinances, violated Daily’s

constitutional rights to procedural due process and equal protection. We affirm.

                                    Background

[¶2.]        In summer of 2004, Daily hired a contractor to construct a concrete

extension to the east side of his driveway. The contractor had laid concrete

extensions to the driveways of various homes in Daily’s neighborhood and informed

Daily that a permit was not required. The completed extension spanned

approximately seven feet from the edge of the existing driveway and ran the length

of the driveway. The extension also ran up to a fire hydrant in the right-of-way.

The extension allowed Daily, who has a serious heart condition, to use a snow-

blower to clear snow away from the hydrant.

[¶3.]        In April of 2006, Brad Hartmann, a City code enforcement officer,

came to Daily’s home. Hartmann asked Daily what he planned to do about the

notice-of-ordinance violation he received regarding the concrete extension to his

driveway. When Daily stated that he did not receive the notice, Hartmann

maintained that he posted the warning on Daily’s door. He advised Daily that the


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concrete extension violated the City’s zoning ordinances that prohibit concrete from

being poured in the front setback and right-of-way. When Daily explained that

many of his neighbors had constructed concrete extensions to their driveways,

Hartmann advised Daily to seek a variance from the City.

[¶4.]         In May of 2006, Daily applied for a variance for the concrete extension

to his driveway. After a hearing in June of 2006, the City Board of Adjustment

denied Daily’s application. The Board acknowledged that many of Daily’s neighbors

had constructed concrete extensions to their driveways, but it expressed concern

about Daily’s concrete extension because it was constructed within feet of a fire

hydrant. The Board noted that a vehicle parked on Daily’s concrete extension could

easily back into the hydrant. Daily appealed the Board’s decision, alleging selective

enforcement of the City’s zoning ordinances. After a hearing on his appeal in July

of 2006, the hearing examiner upheld the Board’s decision. Daily did not appeal the

hearing examiner’s decision.

[¶5.]         On September 7, 2006, Daily received citation 1313, the first citation

for the concrete extension to his driveway. 1 The citation assessed Daily a fine of

$100. In the section entitled “Violation Details,” it stated, “Concrete poured in the

required front setback and right-of-way.” After “Code Sections,” it stated,




1.      Citation 1313 was not personally delivered to Daily. Rather, Hartmann hung
        the citation on Daily’s front door. He wrote the word “posted” on the
        signature line in the citizen-acknowledgement section of the citation.
        Hartmann did not prepare or sign an affidavit of posting.


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“15.49.060, 15.55.010, and 15.55.040.” 2 Daily appealed the citation, alleging

selective enforcement of the City’s zoning ordinances. On September 26, 2006,

Daily appeared for a hearing on the citation. The hearing did not take place

because the hearing examiner was unable to attend. Instead, Daily met with

Hartmann and Shawn Tornow, an assistant city attorney, regarding the citation.

Tornow advised Daily that the hearing would be rescheduled.

[¶6.]         On September 27, 2006, the day after the cancelled hearing on citation

1313, Hartmann issued citation 1379. 3 This second citation also assessed Daily a

$100 fine. In the section entitled “Violation Details,” it stated, “Right-of-way

construction without a permit from City Engineering.” It cited Municipal Code




2.      Zoning Ordinance 15.49.060 provides in part:

              At least 90 percent of the required front yard setback in any
              zoning district shall be landscaped and maintained with living
              ground cover. The required setback may include necessary hard
              surfacing of driveways to reach allowable parking, loading, or
              stacking areas. Poured or laid asphalt, concrete, or similar hard
              surfacing shall not be used as allowable landscape material. . . .
              A setback area of at least five feet shall be provided between the
              parking surface and property line where a parking lot abuts
              neighboring residentially used property.

        Further, Zoning Ordinance 15.55.010(a)(5) provides in part: “Parking spaces
        shall be located according to the following standards: Parking in the required
        front or side yard. No parking spaces permitted in the required front or side
        yard in any district except as otherwise provided in this title.” Finally,
        Zoning Ordinance 15.55.040(3) provides in part: “Parking is prohibited in the
        required front yard setback, except as otherwise provided in this title.”

3.      Citation 1379 was not personally delivered to Daily. Rather, Hartmann
        mailed the citation to Daily. He wrote the word “mailed” on the signature
        line in the citizen-acknowledgement section of the citation. Hartmann did
        not prepare or sign an affidavit of mailing.

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section 35½-4. 4 Daily appealed this second citation, alleging selective enforcement

of the City’s municipal code. Because the hearing on citation 1313 had not yet been

rescheduled, Daily also requested a hearing on that citation. Daily received a notice

scheduling a hearing on both citations for October 23, 2006.

[¶7.]         The parties dispute whether the October hearing on citations 1313 and

1379 took place. At the court trial in the declaratory judgment action, Daily offered

his personal calendar and detailed testimony about the hearing. He testified that

after Daily questioned Hartmann regarding the citations, Tornow stopped the

hearing and asked him to step out of the room. When Daily entered the room

several minutes later, Tornow told him that he would receive additional citations if

he did not remove the concrete extension to his driveway. Daily did not receive a

decision regarding his appeals of the citations. In contrast, the City, through the

testimony of Hartmann, a paralegal for the city attorney’s office, and a City director



4.      Sioux Falls Municipal Code § 35½-4(a) provides:

              Except as otherwise provided in this Code, no person may
              construct in any right-of-way without first having obtained a
              permit. . . . A construction permit allows the holder to construct
              in that part of the right-of-way described in the permit and to
              hinder free and open passage in the specified portion of the
              right-of-way by placing facilities as described therein, to the
              extent and for the duration specified therein.

        Sioux Falls Municipal Code § 35½-2 defines “facilities” as follows:

              [A]ny tangible thing located in any right-of-way; but shall not
              include sidewalks and private driveway approaches regulated
              under chapter 38 of this Code, water sprinkler systems, invisible
              dog fences, mailboxes, boulevard plantings or gardens in the
              right-of-way.


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who served on the decision panel, contended that Daily did not appear for the

hearing. The City ordinarily records its administrative hearings, but no audio

recording for this hearing has been found. The outside cover of the City’s official file

for the citations states, “No Show, No Tape,” but it is not clear whether this note

refers to the October hearing or the September hearing for which the hearing

examiner was not available.

[¶8.]         The City did not contact Daily again regarding the concrete extension

to his driveway until April of 2008, when he received citations 2545 and 2546 in the

mail. Citation 2545 cites the same zoning ordinances as citation 1313, and citation

2546 cites the same municipal code section as citation 1379. Daily appealed

citations 2545 and 2546, alleging selective enforcement and double jeopardy. After

receiving a notice scheduling a hearing on both citations, Daily retained an

attorney.

[¶9.]         A hearing on citations 2545 and 2546 took place on April 29, 2008. The

City Attorney’s office hired James Robbennolt, a Sioux Falls attorney, to serve as

the hearing examiner. 5 Before the hearing, Robbennolt informed Daily that he bore



5.      Daily has not argued that his procedural due process right to an impartial
        tribunal was violated. Sioux Falls Municipal Code section 2-60 provides that
        the mayor may hire an independent hearing examiner or assign three City
        directors to sit as a hearing panel. The task of hiring independent hearing
        examiners has been delegated to the City Attorney’s office, which also
        prosecutes code violations. When the mayor has assigned City directors to a
        hearing panel, the City directors have relied on the City attorney for legal
        advice during the administrative hearing. We recognize that “a party’s due
        process rights to a fair and impartial tribunal,” which includes the right to an
        “independent and unbiased adjudicator,” is critical. Judith K. Meierhenry,
        The Due Process Right to an Unbiased Adjudicator in Administrative
        Proceedings, 36 S.D. L. Rev. 551, 554 (1991). See also Withrow v. Larkin, 421
                                                              (continued . . .)
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the burden of proving that the City incorrectly issued the citations. Tornow

informed Daily’s attorney that the City’s administrative appeals ordinance provides

that the technical rules of evidence do not apply but that irrelevant or immaterial

evidence may be excluded. During the hearing, Tornow repeatedly objected to the

introduction of evidence on grounds other than relevance, and Robbennolt sustained

several of his objections. The City did not hire a court reporter but recorded the

hearing instead. On May 2, 2008, Robbennolt issued findings of fact and

conclusions of law upholding citations 2545 and 2546.

[¶10.]         In May of 2008, Daily initiated this declaratory judgment action

against the City. A four-day trial was held over a period of several months. After

the trial, the parties submitted proposed findings of fact and conclusions of law.

The trial court ultimately concluded that the City’s administrative appeals process,

both as written and as applied, as well as the enforcement of its zoning ordinances

violated Daily’s constitutional rights to procedural due process and equal protection.

The City appeals. 6


___________________________
(. . . continued)
         U.S. 35, 47, 95 S. Ct. 1456, 1464, 43 L. Ed. 2d 712 (1975) (“Not only is a
         biased decisionmaker constitutionally unacceptable, but ‘our system of law
         has always endeavored to prevent even the probability of unfairness.’”)
         (quoting In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942
         (1955)) (additional citation omitted); City of Pierre v. Blackwell, 2001 S.D.
         127, ¶ 14, 635 N.W.2d 581, 585 (noting the requirement of a proper
         adjudication by a “disinterested judicial officer”) (citing Hollander v. Douglas
         Co., 2000 S.D. 159, ¶ 17, 620 N.W.2d 181, 186).

6.       The docketing statement accompanying the City’s notice of appeal listed
         three issues for this Court’s consideration: (1) whether the trial court erred by
         denying the City’s motion to dismiss; (2) whether the City’s enforcement of its
         zoning ordinances violated Daily’s constitutional rights to procedural due
                                                               (continued . . .)
                                            -6-
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                                Standard of Review

[¶11.]       Whether the City’s administrative appeals process violated Daily’s

procedural due process rights is a constitutional question that this Court reviews de

novo. State v. Holway, 2002 S.D. 50, ¶ 9, 644 N.W.2d 624, 627 (citing Blackwell,

2001 S.D. 127, ¶ 7, 635 N.W.2d at 584). “Under the de novo standard of review, we

give no deference to the [trial] court’s conclusions of law.” In re Guardianship of

S.M.N., T.D.N. & T.L.N., 2010 S.D. 31, ¶ 10, 781 N.W.2d 213, 218 (citing Sherburn

v. Patterson Farms, Inc., 1999 S.D. 47, ¶ 4, 593 N.W.2d 414, 416). But legislative

enactments, including municipal ordinances, are “presumed reasonable, valid, and

constitutional.” Blackwell, 2001 S.D. 127, ¶ 9, 635 N.W.2d at 584 (quoting Fortier v.

City of Spearfish, 433 N.W.2d 228, 230-31 (S.D. 1988)).

                               Analysis and Decision

[¶12.]       The City operates under a home rule charter. The South Dakota

Constitution describes “home rule” municipalities:

             A chartered governmental unit may exercise any legislative
             power or perform any function not denied by its charter, the
             Constitution, or the general laws of the state. The charter may
             provide for any form of executive, legislative and administrative
             structure which shall be of superior authority to statute,

___________________________
(. . . continued)
         process and equal protection; and (3) whether the City’s administrative
         appeals ordinances violated Daily’s procedural due process rights. But on
         appeal, the City only briefed two issues: (1) whether the City’s administrative
         appeals process violated Daily’s procedural due process rights; and (2)
         whether the trial court improperly adopted findings of fact and conclusions of
         law based in substantial part on Daily’s submissions. We will consider only
         those issues that the parties actually briefed. See Rehm v. Lenz, 1996 S.D.
         51, ¶ 14, 547 N.W.2d 560, 565 (citing Centrol, Inc. v. Morrow, 489 N.W.2d
         890, 893-94 (S.D. 1992)). Accordingly, the City has waived the other issues it
         listed in its docketing statement.

                                          -7-
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             provided that the legislative body so established be chosen by
             popular election and that the administrative proceedings be
             subject to judicial review.

S.D. Const. art. IX, § 2 (emphasis added). Because the City operates under a home

rule charter, it is required to craft an administrative appeals process that provides

individuals the right to meaningful judicial review of the facts and law supporting

its administrative decisions.

[¶13.]       Whether the City’s administrative appeals process
             violated Daily’s procedural due process rights.

[¶14.]       Daily challenged the City’s administrative appeals process under the

Fourteenth Amendment to the United States Constitution and article VI, section 2

of the South Dakota Constitution. Both provide that no person shall be deprived of

“life, liberty, or property without due process of law.” U.S. Const. amend. XIV, § 1;

S.D. Const. art. VI, § 2. The requirements of due process apply to adversarial

administrative proceedings of local units of government. Hanig v. City of Winner,

2005 S.D. 10, ¶ 10, 692 N.W.2d 202, 205-06 (quoting Strain v. Rapid City Sch. Bd.,

447 N.W.2d 332, 336 (S.D. 1989)). ‘“To establish a procedural due process violation,

[an individual] must demonstrate that he has a protected property or liberty

interest at stake and that he was deprived of that interest without due process of

law.”’ Osloond v. Farrier, 2003 S.D. 28, ¶ 16, 659 N.W.2d 20, 24 (quoting Hopkins v.

Saunders, 199 F.3d 968, 975 (8th Cir. 1999)).

Is a Protected Property Interest at Stake?

[¶15.]       We first consider whether the citations Daily received deprived him of

a protected property interest. “Property interests are not created by the

Constitution[.]” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct.

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1487, 1491, 84 L. Ed. 2d 494 (1985) (quoting Bd. of Regents v. Roth, 408 U.S. 564,

577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972)) (additional citation omitted).

Rather, “they are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law.” Id. But

“federal constitutional law determines whether that interest rises to the level of a

‘legitimate claim of entitlement’ protected by the Due Process Clause.” Memphis

Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 1560, 56 L. Ed. 2d 30

(1978) (quoting Perry v. Sindermann, 408 U.S. 593, 602, 92 S. Ct. 2694, 2700, 33 L.

Ed. 2d 570 (1972)) (additional citation omitted). A government actor may not

deprive an individual of a protected property interest ‘“without appropriate

procedural safeguards.”’ Loudermill, 470 U.S. at 541, 105 S. Ct. at 1493 (quoting

Arnett v. Kennedy, 416 U.S. 134, 167, 94 S. Ct. 1633, 1650, 40 L. Ed. 2d 15 (1974)

(Powell, J., concurring in part and concurring in result in part)).

[¶16.]         The City issued Daily four citations for the concrete extension to his

driveway. Each of the citations assessed Daily a civil fine. Numerous courts have

recognized that the assessment of a civil fine deprives an individual of a protected

property interest. 7 See, e.g., Cook v. City of Buena Park, 23 Cal. Rptr. 3d 700, 704

(Cal. Ct. App. 2005) (recognizing that a landlord has an interest in avoiding fines



7.       Daily argues that the citations he received deprived him of a protected
         property interest by placing an encumbrance on his home and property. See,
         e.g., Connecticut v. Doehr, 501 U.S. 1, 12, 111 S. Ct. 2105, 2113, 115 L. Ed. 2d
         1 (1991) (“[E]ven the temporary or partial impairments to property rights
         that attachments, liens, and similar encumbrances entail are sufficient to
         merit due process protection.”). Because we conclude that the citations
         deprive Daily of a protected property interest by assessing a civil fine, we
         need not address this argument.

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imposed by a city ordinance); Bartlow v. Shannon, 927 N.E.2d 88, 98 (Ill. App. Ct.

2010) (“The fines at issue, obviously, involve a protectable interest in property.”).

We thus conclude that the citations Daily received deprived him of a protected

property interest.

What Process Was Due?

[¶17.]       The heart of the matter is whether the City’s administrative appeals

process deprived Daily of a protected property interest without due process of law.

The trial court concluded that the City’s administrative appeals process violated

Daily’s procedural due process rights for five reasons: (1) Daily bore the burden of

proving that the City incorrectly issued the citations; (2) Daily was not afforded an

opportunity to subpoena witnesses or documents or to otherwise investigate the

basis of the citations; (3) the City issued Daily multiple citations for a single

violation of its zoning ordinances and municipal code; (4) the hearing examiner did

not apply the applicable rules of evidence in a fair and even-handed manner; and (5)

the failure to keep a complete and accurate record of Daily’s administrative appeal

hampered the trial court’s ability to conduct meaningful review of the proceedings.

The City challenges the trial court’s conclusions.

[¶18.]        Because “[d]ue process centrally concerns the fundamental fairness of

governmental activity,” it is not easily defined. Quill Corp. v. North Dakota, 504

U.S. 298, 312, 112 S. Ct. 1904, 1913, 119 L. Ed. 2d 91 (1992). See Carey v. Piphus,

435 U.S. 247, 262, 98 S. Ct. 1042, 1051, 55 L. Ed. 2d 252 (1978) (One “purpose of

procedural due process is to convey to the individual a feeling that the government




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has dealt with him fairly[.]”). Determining what process is due in a particular case

requires consideration of three factors:

               First, the private interest that will be affected by the official
               action; second, the risk of an erroneous deprivation of such
               interest through the procedures used, and the probable value, if
               any, of additional or substitute procedural safeguards; and
               finally, the Government’s interest, including the function
               involved and the fiscal and administrative burdens that the
               additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976)

(citing Goldberg v. Kelly, 397 U.S. 254, 263-71, 90 S. Ct. 1011, 1018-22, 25 L. Ed. 2d

287 (1970)).

Burden of Proof and Opportunity to Investigate

[¶19.]         The City first challenges the trial court’s conclusion that its

administrative appeals process violated Daily’s procedural due process rights

because he bore the burden of proving that the City incorrectly issued the citations

and because he was not afforded an opportunity to subpoena witnesses or

documents or to otherwise investigate the basis of the citations before the hearing. 8




8.       City ordinance describes an individual’s rights in an administrative hearing:

               The appellant, the major organization unit or agency, and any other
               party to an appeal shall have these rights among others:
               (1)    To call and examine witnesses on any matter relevant to the
                      issue of the hearing;
               (2)    To introduce documentary and physical evidence;
               (3)    To cross-examine opposing witnesses on any matter relevant to
                      the issues of the hearing; and
               (4)    To rebut evidence.

         Sioux Falls Municipal Code § 2-63.

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At trial, the trial court specifically questioned the hearing examiner about the

burden of proof:

             Q:    I just have a couple questions about the procedure here.
                   When someone gets a citation and they ask for a hearing,
                   that’s an appeal, right?

             A:    That’s my – yes.

             Q:    So there is no hearing to begin with for them to appeal
                   from. They are just appealing from the citation.

             A:    From the citation itself, yes, ma’am.

             Q:    So could that be why there is some confusion when you
                   have attorneys show up and they think the City is going
                   to go forward proving there is a violation or that the
                   citation was properly issued?

             A:    I never thought about it that way. But that could be why.

             Q:    There is no initial –

             A:    Right.

             Q:     – determination that they violated the citation.

             A:    Yes, ma’am.

             Q:    So they are kind of guilty until they prove themselves
                   innocent, if the burden is on the citizen?

             A:    If the burden is on the appellant they have – this is my
                   interpretation – they have the burden of showing that the
                   City improperly issued the citation to begin with.

             Q:    Right. So there is no process where the City has to come
                   forward and say this is what I saw, this is why I issued
                   the citation. That never has to happen?

             A:    It’s my understanding – and I don’t know – I don’t want to
                   jump off a cliff here, but it’s my understanding that the
                   citation – the actual citation itself is not issued until after
                   letters are mailed to the person in question saying we’ve
                   inspected your property and we think you’re in violation

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                      of this section and this section and this section of the code.
                      This is – and then – and they are given, say two weeks to
                      comply with the ordinance. And – and once they are in
                      compliance then they are supposed to call the City and
                      the City will send somebody out to inspect as to whether
                      or not they are in compliance. If they don’t do that or if
                      they don’t respond within two weeks, it’s only then that
                      the citation is issued – the actual citation itself.

               Q:     Yeah. Okay. So it starts out with the letter like you’re
                      saying, then there is a citation issued and then the first
                      hearing that a person gets is the appeal?

               A:     That’s my understanding.

The City takes the position that the issuance of a citation by a City code

enforcement officer establishes non-compliance and that an individual who appeals

a citation bears the burden of proving that the City incorrectly issued it. This

practice, though not set forth in the City’s administrative appeals ordinances, was

applied to Daily. 9

[¶20.]         This Court has addressed the constitutionality of a similar practice. In

City of Pierre v. Blackwell, an animal control officer impounded Blackwell’s dog

because he determined that it was dangerous. 2001 S.D. 127, 635 N.W.2d 581.

When the City Attorney released the dog to him, Blackwell refused to comply with

the City’s requirements for keeping a dangerous animal and did not allow the City

to impound the animal. The City brought criminal charges against Blackwell. At




9.       In Daniels Construction, Inc. v. City of Sioux Falls, the Second Judicial
         Circuit, per Judge Srstka, held that a City hearing examiner improperly
         pursued his authority by placing the burden of proof on the individual. Civ.
         No. 06-1838, *4 (Dec. 11, 2007). The City did not appeal the circuit court’s
         decision but continued its practice of placing the burden of proof on
         individuals at administrative hearings.

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trial, the trial court did not conduct an independent evaluation of the dog’s

dangerousness but “merely reviewed the animal control officer’s determination for

its legality.” Id. ¶ 5. Blackwell was convicted of non-compliance with the City’s

ordinance for keeping a dangerous animal.

[¶21.]        Blackwell challenged his conviction on the ground that his procedural

due process rights had been violated. We held that Blackwell was not afforded a

fair trial:

              The City must be required to prove, as an element of the crime,
              that the dog was dangerous beyond a reasonable doubt. . . . The
              City . . . chose to bring criminal charges against Blackwell and
              therefore must carry the appropriate burden of proof.

              While evidence regarding the dangerousness of the dog was
              presented by both sides at trial, there was no independent
              evaluation of this evidence by the trial court. The court stated
              [that] “it is not a judicial function to try de novo a declaration of
              dangerousness by the City.” . . . Here, there was no independent
              determination of dangerousness by a neutral judicial officer as
              part of the criminal proceeding.

              In refusing to evaluate the evidence and make a finding of fact
              on the issue of the dog’s dangerousness, the trial court did not
              hold the City to its burden of proof. Because the trial court
              merely reviewed the animal control officer’s decision for its
              legality, we find that due process was not served by the trial
              court in this case.

Id. ¶¶ 15-17. We recognized that “[e]ven in a civil context, the animal control

officer’s claim that he made the dangerousness determination in compliance with

statutory guidelines is not sufficient[.]” Id. ¶ 16 n.2.

[¶22.]        The hearing examiner in this case conducted an independent

evaluation of the factual basis of the citations Daily received but failed to hold the

City to its burden of proof. Allocation of the burden of proof is constitutionally


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significant. For example, in Armstrong v. Manzo, a mother’s husband sought to

adopt her child without the biological father’s consent. 380 U.S. 545, 85 S. Ct. 1187,

14 L. Ed. 2d 62 (1965). The mother and her husband thus filed an affidavit alleging

that the father failed to contribute to the child’s support. When the father received

notice of the adoption after it was finalized, he filed a motion to set the adoption

aside. At the hearing on the matter, the father bore the burden of establishing that

he contributed to the child’s support. The United States Supreme Court found the

post-adoption hearing constitutionally insufficient:

             As the record shows, there was placed upon [the father] the
             burden of affirmatively showing that he had contributed to the
             support of his [child] to the limit of his financial ability over the
             period involved. The burdens thus placed upon [the father] were
             real, not purely theoretical. For “it is plain that where the
             burden of proof lies may be decisive of the outcome.” Yet these
             burdens would not have been imposed upon him had he been
             given timely notice in accord with the Constitution.

Id. at 551, 85 S. Ct. at 1191 (quoting Speiser v. Randall, 357 U.S. 513, 525, 78 S. Ct.

1332, 1342, 2 L. Ed. 2d 1460 (1958)). The Court thus remanded for a new hearing

with the burden of proof placed on the mother and her husband to demonstrate the

father’s failure to support the child.

[¶23.]       Weighing the three Mathews factors demonstrates that holding the

City to its burden of proof was constitutionally required in this case. See Mathews,

424 U.S. at 335, 96 S. Ct. at 903. On the one hand, Daily has a significant private

interest in avoiding the assessment of a civil fine. See id. On the other hand, the

City has an interest in ensuring that its residents comply with its zoning ordinances

and municipal code. See id. But in this case, we believe it is clear that properly

allocating the burden of proof would reduce the risk of erroneously depriving

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individuals of protected property interests without placing substantial fiscal or

administrative burdens on the City. See Armstrong, 380 U.S. at 551, 85 S. Ct. at

1191.

[¶24.]          Moreover, the South Dakota Constitution requires meaningful judicial

review of the City’s administrative decision regarding the citations Daily received.

No right to appeal an administrative decision to circuit court exists unless the

South Dakota Legislature enacts a statute creating that right. Vitek v. Bon Homme

Cnty. Bd. of Comm’rs, 2002 S.D. 100, 650 N.W.2d 513 (allowing an appeal to circuit

court from a county commission decision under SDCL 7-8-27); Dale v. Bd. of Educ.,

Lemmon Indep. Sch. Dist. #52-2, 316 N.W.2d 108 (S.D. 1982) (allowing an appeal to

circuit court from a school board decision under SDCL 13-46-1). While SDCL 1-26-

30.2 allows an individual to appeal “a contested case from a final decision, ruling, or

action of an agency,” SDCL 1-26-1(1) specifically excludes a local unit of government

from the definition of an “agency.” 10 Although Daily could seek judicial

intervention by an extraordinary writ or a declaratory judgment action, that review

is limited to




10.      The South Dakota Administrative Procedures Act (SDAPA) guarantees
         individuals many of the procedural protections Daily claims he was due. See
         SDCL 1-26-18 (providing for discovery and subpoena of persons and
         documents in contested cases); SDCL 1-26-19 (providing that the rules of
         evidence shall be followed); SDCL 1-26-33 (requiring an agency to transmit
         the original or a certified copy of the entire record of its proceedings to circuit
         court when its decision is appealed). Because SDCL 1-26-1(1) excludes local
         units of government from the definition of “agency,” the SDAPA does not
         apply to the City’s administrative appeals process.


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#25698, #25715

the question whether the hearing examiner “regularly pursued” his authority. 11

SDCL 21-31-8. Thus, Daily was not afforded the right to meaningful judicial review

of the factual basis of the citations that the South Dakota Constitution requires. 12

[¶25.]         We do not believe that the City’s administrative appeals process

afforded Daily an opportunity to be heard “at a meaningful time and in a

meaningful manner.” See Armstrong, 380 U.S. at 552, 85 S. Ct. at 1191. The City

issued Daily four citations for the concrete extension to his driveway and was



11.      The City has long engaged in a practice of informing individuals of a right to
         judicial review when no such remedy is available. See, e.g., Daniels Constr.,
         Inc. v. City of Sioux Falls, Civ. No. 06-1838 (Aug. 24, 2006) (dismissing, on
         the City’s motion, a petition seeking to appeal the City’s administrative
         decision to circuit court because the City’s administrative appeals ordinance
         established no means to do so). In this case, the notices of the scheduling
         hearings on the citations Daily received either read, “The Hearing
         Examiner’s Decision may be appealed by either party to Circuit Court, as
         provided by law,” or, “The Hearing Examiner’s decision may be subject to
         judicial review as provided by law.” Yet when Daily’s attorney made an offer
         of proof for the purposes of appeal at the administrative hearing, Tornow
         objected. He argued that the offer of proof was improper because Daily could
         only seek judicial review of the City’s administrative decision by an
         extraordinary writ or a declaratory judgment action. The hearing examiner
         sustained Tornow’s objection to the offer of proof.

12.      In Daniels Construction, Inc. v. City of Sioux Falls, the Second Judicial
         Circuit subsequently considered the constitutionality of the City’s
         administrative appeals ordinance. Civ. No. 06-1838 (Feb. 8, 2007). The
         circuit court held that the City’s administrative appeals ordinance was
         unconstitutional to the extent that it articulated a right to appeal to circuit
         court but established no means to do so. Id. *5. The circuit court delayed the
         effective date of its decision to allow the City to seek legislation establishing a
         process to appeal its administrative decisions to circuit court. Id. *6. Rather
         than seeking new legislation, the City amended its administrative appeals
         ordinance to articulate a right to judicial review of its administrative
         decisions. But again, the City did not establish a process for judicial review
         of the facts and law supporting its administrative decisions. An
         extraordinary writ or a declaratory judgment action is not meaningful
         judicial review.

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#25698, #25715

therefore required to carry the appropriate burden of proof. See Blackwell, 2001

S.D. 127, ¶ 15, 635 N.W.2d at 586. Yet Daily, in his first and only hearing on the

factual basis of the citations, was charged with the difficult task of overcoming

Hartmann’s initial determination of non-compliance. This difficulty was

compounded by the fact that Daily was not afforded an opportunity to subpoena

witnesses or documents or to otherwise investigate the basis for the citations. 13

Because the hearing examiner in this case did not hold the City to its burden of

proof, the City’s administrative appeals process deprived Daily of a protected

property interest without due process of law.

Issuing Multiple Citations

[¶26.]         The City also challenges the trial court’s conclusion that it violated

Daily’s procedural due process rights by issuing multiple citations for a single

violation of its zoning ordinances and municipal code. Sioux Falls Municipal Code

section 2-114(b) specifically provides that “[a] continuing violation of this Code

constitutes a separate and distinct violation each day that the violation exists.” The

Code further states:

               If the responsible party fails to correct the violation, subsequent
               administrative citations may be issued for the same violations.
               The amount of the civil penalty shall increase at a rate specified
               in ordinance.




13.      The City argues that it need not afford individuals an opportunity to
         subpoena witnesses or documents or to otherwise investigate the basis of
         citations because it makes City employees readily available for testimony at
         administrative hearings. Yet at Daily’s administrative hearing, Tornow
         specifically instructed a City employee not to answer questions Daily’s
         counsel posed during an offer of proof.

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#25698, #25715

Sioux Falls Municipal Code § 2-117(c). And finally:

              The failure of any person to file a timely appeal or pay the civil
              penalties within the time specified on the citation shall
              constitute an irrebuttable presumption that a violation has
              occurred. It may result in the city attorney filing legal
              proceedings in magistrate or circuit court. Alternatively, the
              city may pursue any other legal remedy available to collect the
              civil penalty or correct the violation of city ordinance.

Sioux Falls Municipal Code § 2-118.

[¶27.]        As a matter of policy, the City repeatedly cites individuals for

violations until they finally comply with its zoning ordinances. Shawna

Goldammer, the City’s zoning enforcement manager, testified that the City

Attorney’s office made the decision long ago not to initiate legal proceedings in

magistrate or circuit court to collect fines or to correct violations:

              Q:     So rather than utilize the circuit court system to enforce
                     these two citations, Mr. Hartmann, your department, just
                     issues new citations two years later for the same
                     violations?

              A:     Yes. That is what happened here because the violation is
                     still present.

              Q:     All right. So rather than use the court system, at least in
                     Mr. Daily’s case – to enforce the violations of the City’s
                     zoning ordinances, you just repeatedly cite citizens like
                     Mr. Daily?

              A:     When the violation continues to be present, yes.

              Q:     And you never go into the circuit court system so the
                     circuit court judge can look at, hear the evidence, and
                     determine whether the decision of the City was
                     legitimate?

              A:     We do not go to circuit court except in extreme
                     circumstances.



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#25698, #25715

In this case, the City did not initiate legal proceedings in magistrate or circuit court

to collect Daily’s fines or to correct his violations. It repeatedly cited him for the

same violations instead. While this practice did not constitute a technical violation

of Daily’s procedural due process rights, it is a relevant consideration in evaluating

the fairness of the City’s administrative appeals process.

Applicable Rules of Evidence

[¶28.]       The City next challenges the trial court’s conclusion that Daily’s

procedural due process rights were violated because the hearing examiner did not

apply the applicable rules of evidence in a fair and even-handed manner. City

ordinance governs the admissibility of evidence in administrative appeals:

             The following rules shall govern the procedures for an
             administrative hearing:

             (1) Hearings and administrative appeals need not be conducted
                 according to the technical rules relating to evidence and
                 witnesses.
                 ...
             (4) Any relevant evidence shall be admitted if it is the type of
                 evidence upon which reasonable persons are accustomed to
                 rely in the conduct of serious affairs, regardless of the
                 existence of any common law or statutory rule which might
                 make improper the admission of such evidence after objection
                 in civil actions in courts of competent jurisdiction in this
                 state.

Sioux Falls Municipal Code § 2-62.

[¶29.]       Application of the technical rules of evidence is not constitutionally

required. United States v. Fell, 360 F.3d 135, 144-45 (2d Cir. 2004). Numerous

courts have recognized that this is especially true in administrative proceedings.

See, e.g., R&B Transp., L.L.C. v. U.S. Dep’t of Labor, Admin. Review Bd., 618 F.3d

37, 45 (1st Cir. 2010); Hardisty v. Astrue, 592 F.3d 1072, 1075 (9th Cir. 2010);

                                          - 20 -
#25698, #25715

Lybesha v. Holder, 569 F.3d 877, 882 (8th Cir. 2009) (citing Tun v. Gonzales, 485

F.3d 1014, 1025-26 (8th Cir. 2007)). Yet it cannot be doubted that the applicable

rules of evidence must be applied in a fair and even-handed manner. See Withrow,

421 U.S. at 46, 95 S. Ct. at 1464 (“[A] ‘fair trial in a fair tribunal is a basic

requirement of due process.’” (quoting Murchison, 349 U.S. at 136, 75 S. Ct. at

625)).

[¶30.]        In this case, it is the application of the rules of evidence that deprived

Daily of a fair hearing. Before the administrative hearing, Tornow informed Daily’s

attorney that the technical rules of evidence did not apply but that irrelevant or

immaterial evidence may be excluded. During the hearing, Tornow repeatedly

objected to the introduction of evidence on grounds other than relevance, and the

hearing examiner sustained many of his objections. Yet when Daily’s attorney

objected to evidence on grounds other than relevance, Tornow reminded the hearing

examiner that the technical rules of evidence did not apply. We believe that this

application of the City’s administrative appeals ordinance violated Daily’s

procedural due process rights.

Recordkeeping

[¶31.]        The City finally challenges the trial court’s conclusion that the City’s

failure to keep a complete and accurate record of Daily’s administrative appeal

hampered its ability to conduct meaningful review of the proceedings. Article IX,

section 2 of the South Dakota Constitution requires that administrative proceedings

of local units of government operating under a home rule charter be subject to

judicial review. Our review of the record in this case confirms that the audio


                                           - 21 -
#25698, #25715

recording of Daily’s administrative appeal is rather poor and that the City’s official

file for Daily’s citations is disorganized and incomplete. But because the City’s

failure to keep an adequate record of Daily’s administrative appeal was not so

deficient as to hamper our review of the proceedings, we do not believe it

constituted a technical violation of Daily’s constitutional rights. But it too is a

relevant consideration in evaluating the fairness of the City’s administrative

appeals process.

[¶32.]       Based on our ruling addressing procedural due process issues, we need

not reach the remaining issues raised by the City.

[¶33.]       Affirmed.

[¶34.]       GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,

Justices, and MEIERHENRY, Retired Justice, concur.




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