In Re the Petition for Writ of Certiorari as to the Wrongful Payments of Attorney Fees Made by the Brookings School District School Board

2003 SD 101, 668 N.W.2d 538, 2003 S.D. LEXIS 126
CourtSouth Dakota Supreme Court
DecidedAugust 13, 2003
DocketNone
StatusPublished
Cited by10 cases

This text of 2003 SD 101 (In Re the Petition for Writ of Certiorari as to the Wrongful Payments of Attorney Fees Made by the Brookings School District School Board) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Petition for Writ of Certiorari as to the Wrongful Payments of Attorney Fees Made by the Brookings School District School Board, 2003 SD 101, 668 N.W.2d 538, 2003 S.D. LEXIS 126 (S.D. 2003).

Opinions

ZINTER, Justice.

[¶ 1.] Craig Culver, Leon Pesall, Marcia Williams, Henry Williams, Robert Thorson, Hugh Barnett, Robert Schwartz and Diane Culver (Taxpayers) obtained a writ of certiorari setting aside a Brookings School. Board (Board) payment of legal fees. The Board had reimbursed two private citizens for the legal fees they incurred in their private legal action to overturn a decision of a school election recount board. The circuit court granted the writ, concluding that the Board’s reimbursement of private attorney fees was in excess of its authority. We hold that, under the spécifíc facts of this case, the Board was not authorized to reimburse the private legal fees. However, we reverse that part of the order that, in a certiorari proceeding, ordered the affirmative relief of requiring the Board to commence a legal action to recover the payment. We also reverse the circuit court’s award of Taxpayers’ attorney fees at trial because the Taxpayers’ application was not itemized. We grant Taxpayers’ itemized request for appellate attorney fees.

[540]*540FACTS AND PROCEDURAL HISTORY

[¶2.] In 2001, the Board adopted a budget increase, which required that it “opt-out” of a statutory limitation on spending. See SDCL 10-13-36.1 The Board’s decision to opt-out of the spending limitation was subsequently referred to a public vote. Although the public initially voted to uphold the Board’s decision to opt-out of the spending limitation, a number of voters filed a petition for a recount. During the recount, it was discovered that 77 absentee ballots had not been properly “stamped,” and the school recount board invalidated those unstamped ballots. The invalidation of those ballots overturned the original election result and disallowed the Board’s proposed spending increase.

[¶ 3.] However, two private citizens, Aelred Kurtenbach and Craig Johnson (hereinafter referred to as Kurtenbach, Johnson, or private citizens) challenged the recount board’s decision by filing an election contest and a petition for writ of certiorari. Kurtenbach and Johnson alleged that the recount board had been [541]*541illegally convened, and therefore, the recount board’s decision was a nullity. That dispute eventually reached this Court, and we agreed that the recount board was illegally constituted. Consequently, the decision of the recount board was overturned. This would have reinstated the original election result and permitted the Board to opt-out of the spending limitation. See In re the Petition for Writ of Certiorari as to the Determination of Election on the Brookings School District’s Decision to Raise Additional General Fund Property Tax Revenues in the Amount of $750,000, 2002 SD 85, 649 N.W.2d 581 (Brookings I).

[¶ 4.] This action for certiorari arose because, after the trial in Brookings I, the Board reimbursed the private citizens for the legal fees they incurred in overturning the decision of the recount board. The legal services were provided by Attorney Richard Helsper. Although Helsper was also the Board’s attorney, he appeared in Brookings I as counsel of record for the private citizens. This dispute arose because the Board subsequently voted to pay for the private citizens’ legal fees.

[¶ 5.] The facts relating to the legal services are undisputed. It appears from the record that the day after the recount, Helsper began researching the possibility of commencing an election contest and a certiorari proceeding. From the Friday following the recount until the following Tuesday when the private citizens’ action was filed, Helsper spent substantial time on this matter. During that period of time, Kurtenbach’s and Johnson’s names appear in Helsper’s billings, and the school superintendent “informed” the Board that the Board was going to pay the attorney fees incurred by Kurtenbach and Johnson. However, the Board did not act to approve the superintendent’s recommendation. Moreover, the record does not reflect that the Board agreed to participate in the litigation, employ Helsper to represent the Board’s interests in the litigation, or authorize anyone else to assert the Board’s interests. Consequently, the record reflects that Helsper appeared solely as counsel for Kurtenbach and Johnson in the Brookings I litigation.

[¶ 6.] However, after the Brookings I proceedings concluded in circuit court, the Board voted to pay the private citizens’ legal fees. At Board meetings in December of 2001 and January of 2002, the Board voted to pay $12,169.78 for the private citizens’ legal fees incurred in Brookings I.

[¶ 7.] Taxpayers subsequently filed this action for writ of certiorari seeking a review of the legality of the Board’s decision to pay the fees. The circuit court concluded that the Board did not have the authority to pay Kurtenbach’s and Johnson’s private attorney fees. The circuit court also ordered the Board to take the affirmative act of suing Kurtenbach and Johnson to recover the expenditure. The Board appeals raising numerous questions that we have consolidated into the first 3 issues.2 Taxpayers raise issue 4.

1. Whether the trial court erred in concluding that the Board had no express or implied authority to pay the legal fees of these private citizens.

2. Whether the trial court, in an action for certiorari, had jurisdiction to order the affirmative relief of requiring the Board to commence a suit to recover the payment.

[542]*5423. Whether the trial court erred in awarding trial attorney fees that were not itemized.

4. Whether Taxpayers are entitled to their itemized attorney fee request in this appeal.

[¶ 8.] On Issue 1, we conclude that a school board has authority to pay legal fees to protect, its interests in litigation. However, this Board exceeded its authority when it paid the legal fees of private citizens incurred in litigation in which the Board was not a party, did not employ counsel, and did not elect to appear or assert its interests. On Issue 2, we reverse that portion of the order that required affirmative relief as a remedy in an action for certiorari. On Issue 3, we reverse the Taxpayers’ award of non-itemized attorney fees. On issue 4, we grant Taxpayers’ itemized request for appellate attorney’s fees.

SCOPE AND STANDARD OF REVIEW

[¶ 9.] In certiorari proceedings, the initial scope of review is limited to determining whether the inferior courts, officers, boards or tribunals had jurisdiction to take the action under review, and whether they properly utilized their authority. Our scope of review is also limited:

Because this matter was presented to the trial court on certiorari, our scope of review is limited to the questions of whether the inferior courts, officers, boards, and tribunals had jurisdiction and whether they have regularly pursued the authority conferred upon them. “When such courts, officers, boards, or tribunals have jurisdiction over the subject matter and of the party, their action will be sustained unless in their proceedings they did some act forbidden by law or neglected to do some act required by law.”

Peters v. Spearfish ETJ Planning Comm’n, 1997 SD 105, ¶ 6, 567 N.W.2d 880, 883 (internal citations omitted). Moreover, because the facts in this case are essentially undisputed, we are left with questions of law.

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Bluebook (online)
2003 SD 101, 668 N.W.2d 538, 2003 S.D. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-petition-for-writ-of-certiorari-as-to-the-wrongful-payments-of-sd-2003.