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1-26 ADMINISTRATIVE PROCEDURE AND RULES
CHAPTER 1-26

ADMINISTRATIVE PROCEDURE AND RULES

1-26-1      Definition of terms.
1-26-1.1      Interim Rules Review Committee created--Composition--Appointments--Terms of office--Vacancies.
1-26-1.2      Chair of rules review committee--Schedule of meetings--Compensation of members--Secretary.
1-26-1.3      Delegation of duties by director.
1-26-2      Agency materials available for public inspection--Derogatory materials.
1-26-2.1      Small business impact statements--Content.
1-26-2.2      Repealed.
1-26-3      Repealed.
1-26-4      Notice, service, and hearing required for adoption of rules--Service on interim committee--Waiver of service.
1-26-4.1      Notice of hearing on proposed rule--Contents--Publication--Mailing.
1-26-4.2      Fiscal note submitted with proposed rule--Fiscal note of bureau--Transmitting copies.
1-26-4.3      Time limits for adoption of rules--Presentation to review committee.
1-26-4.4      Time for promulgation of rules after passage of legislative authority.
1-26-4.5      Validation of prior notices of hearings--Limitation on enforcement of vested rights affected.
1-26-4.6      Notices of intent to adopt emergency rules validated--Time for enforcing rights by reason of error in notice--Recordation of notice prerequisite to suit under § 1-26-4.1.
1-26-4.7      Reversion to step in adoption procedure.
1-26-4.8      Fee increase in proposed rule--Agency financial resource information--Submission to review committee.
1-26-4.9      Authority of Interim Rules Review Committee.
1-26-4.10      Resubmission of amended rule to review committee--Hearing not required.
1-26-5      Notice of proposed emergency rule--Service--Use of emergency rule adoption procedure.
1-26-5.1      Temporary suspension by emergency rule--Reversion of amended rule to original form.
1-26-5.2      Repealed.
1-26-6      Completion of adoption of rule or change in rules.
1-26-6.1      Restriction on incorporation of statutory material.
1-26-6.2      Uniform style for rules--Required contents.
1-26-6.3      Notice that rules do not conform--Redrafting and filing required.
1-26-6.4      Repealed.
1-26-6.5      Review by director--Notice to agency of need for change.
1-26-6.6      Incorporation by reference to generally available materials--Description--Reference note--Identification of agency and rule.
1-26-6.7      Procedure for amendment, suspension or repeal of rules.
1-26-6.8      Rules unenforceable until properly adopted.
1-26-6.9      Licensing board or commission fees--Criteria and limitation.
1-26-6.10      Restriction of licensee's right or privilege to carry or possess pistol prohibited.
1-26-7      Records retained--Copies--Public inspection of current rules.
1-26-7.1      Agency's statement of reasons for adoption or rejection of rule.
1-26-8      Effective date of rules--Emergency rules.
1-26-8.1      Retroactive effect of acts prohibiting certain rules--Repealed or unconstitutional statutes--Effect of transfer of rule-making authority to another agency.


1-26-8.2      Petition for delay in effective date of rule--Grant or denial--Maximum delay--Filings--One delay--Repeal of rule.
1-26-8.3      Retroactive effect of rule--Burden of proving authority or necessity.
1-26-9      Transferred.
1-26-10      Repealed.
1-26-11      Pamphlet publication of rules--Supervision.
1-26-12      Distribution and sale of publications and copies of rules.
1-26-12.1      List of rules and organizational statements.
1-26-13      Petition for rules--Denial or initiation of proceedings--Copies to Interim Rules Committee and director.
1-26-13.1      Service complete when deposited in mail.
1-26-14      Declaratory judgment on rules.
1-26-15      Declaratory rulings by agencies.
1-26-16      Notice and hearing required in contested cases.
1-26-16.1      Repealed.
1-26-17      Contents of notice in contested cases.
1-26-17.1      Intervention in contested case by person with pecuniary interests.
1-26-18      Rights of parties at hearings on contested cases--Summary disposition of certain cases.
1-26-18.1, 1-26-18.2. Repealed.
1-26-18.3      Request to use Office of Hearing Examiners in certain contested cases.
1-26-19      Rules of evidence in contested cases.
1-26-19.1      Administration of oaths--Subpoena powers--Witness fees--Disobedience of subpoena.
1-26-19.2      Depositions of witnesses.
1-26-20      Agreed disposition of contested cases.
1-26-21      Contents of record in contested cases.
1-26-22      Transcript in contested cases--Minutes in lieu of transcript.
1-26-23      Basis for findings in contested cases.
1-26-24      Tentative or proposed decision served on parties--Contents--Waiver.
1-26-25      Form, contents and notice of decisions, orders and findings.
1-26-26      Ex parte consultations by agency personnel--Investigating officer disqualified from decision on hearing--Authorized communications.
1-26-27      License proceeding treated as contested case.
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.
1-26-29      Notice and hearing required for revocation or suspension of license--Emergency suspension.
1-26-29.1      Costs of disciplinary hearing.
1-26-30      Right to judicial review of contested cases--Preliminary agency actions.
1-26-30.1      Right of appeal when agency fails to act in contested case.
1-26-30.2      Appeal from final action in contested case.
1-26-30.3      Conduct of appeals.
1-26-30.4      Scope of sections on appeals to circuit courts.
1-26-30.5      Suspension of sections on appeals to circuit courts.
1-26-31      Notice of appeal--Time for service and filing.
1-26-31.1      Venue of appeal.
1-26-31.2      Contents of notice of appeal.
1-26-31.3      Change of venue.
1-26-31.4      Contested cases--Statement of issues on appeal.
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.
1-26-32.1      Procedural rules applied.
1-26-32.2      Request for transcript--Waiver by failure to request.
1-26-32.3      Costs of transcript--Endorsement of order by reporter--Extension of time for transcript.
1-26-32.4      Form of transcript--Number of copies--Certification.
1-26-33      Record transmitted to circuit court--Limitation of record--Corrections and additions.
1-26-33.1      Transferred.
1-26-33.2      Time for serving briefs.
1-26-33.3      Brief of appellant--Contents.
1-26-33.4      Brief of appellee--Contents.
1-26-33.5      Repealed.
1-26-33.6      Speedy hearing and determination.
1-26-34      Circuit court may order agency to take additional evidence.
1-26-35      Nonjury review in circuit court--Proof of irregularities--Oral argument discretionary.
1-26-36      Weight given to agency findings--Disposition of case--Grounds for reversal or modification--Findings and conclusions--Costs.
1-26-36.1      Appellee's right to obtain review.
1-26-37      Appeal to Supreme Court.
1-26-38      Suspension of provisional rules by interim committee--Hearing on suspension--Filing and duration of suspension.
1-26-38.1      Amendment as provisional--Subject to suspension--Effect.
1-26-39      Repealed.
1-26-40      Severability of provisions.
1-26-41      Citation of chapter.


1-26-1 Definition of terms.
     1-26-1.   Definition of terms. Terms used in this chapter mean:
             (1)      "Agency," each association, authority, board, commission, committee, council, department, division, office, officer, task force, or other agent of the state vested with the authority to exercise any portion of the state's sovereignty. The term includes a home-rule municipality that has adopted its own administrative appeals process, whose final decisions, rulings, or actions rendered by that process are subject to judicial review pursuant to this chapter. The term does not include the Legislature, the Unified Judicial System, any unit of local government, or any agency under the jurisdiction of such exempt departments and units unless the department, unit, or agency is specifically made subject to this chapter by statute;
             (2)      "Contested case," a proceeding, including rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing but the term does not include the proceedings relating to rule making other than rate-making, proceedings related to inmate disciplinary matters as defined in § 1-15-20, or student academic proceedings under the jurisdiction of the Board of Regents;
             (3)      "Emergency rule," a temporary rule that is adopted without a hearing or which becomes effective less than twenty days after filing with the secretary of state, or both;
             (4)      "License," the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law;
             (5)      "Licensing," the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license;
             (6)      "Party," each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party;
             (7)      "Person," all political subdivisions and agencies of the state;
             (8)      "Rule," each agency statement of general applicability that implements, interprets, or prescribes law, policy, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior rule, but does not include:
             (a)      Statements concerning only the internal management of an agency and not affecting private rights or procedure available to the public;
             (b)      Declaratory rules issued pursuant to § 1-26-15;
             (c)      Official opinions issued by the attorney general pursuant to § 1-11-1;
             (d)      Executive orders issued by the Governor;
             (e)      Student matters under the jurisdiction of the Board of Regents;
             (f)      Actions of the railroad board pursuant to § 1-44-28;
             (g)      Inmate disciplinary matters as defined in § 1-15-20;
             (h)      Internal control procedures adopted by the Gaming Commission pursuant to § 42-7B-25.1;
             (i)      Policies governing specific state fair premiums, awards, entry, and exhibit requirements adopted by the State Fair Commission pursuant to § 1-21-10;
             (j)      Lending procedures and programs of the South Dakota Housing Development Authority; and
             (8A)      "Small business," a business entity that employs twenty- five or fewer full-time employees.
             (9)      "Substantial evidence," such relevant and competent evidence as a reasonable mind might accept as being sufficiently adequate to support a conclusion.

Source: SDC 1939, § 65.0106; SL 1966, ch 159, § 1; SL 1968, ch 210; SL 1972, ch 8, § 3; SL 1973, ch 264, § 1; SL 1974, ch 16, §§ 1, 2; SL 1975, ch 16, §§ 7, 8; SL 1976, ch 14, §§ 1, 2; SL 1977, ch 13, § 1; SL 1977, ch 14; SL 1980, ch 17; SL 1982, ch 20, § 2; SL 1983, ch 199, § 1; SL 1989, ch 20, § 42; SL 1990, ch 343, § 9A; SL 1992, ch 8, § 3; SL 1995, ch 3, § 2; SL 1996, ch 10, § 1; SL 1996, ch 130, § 15A; SL 1999, ch 6, § 1; SL 2004, ch 20, § 1; SL 2012, ch 7, § 1; SL 2014, ch 73, § 1.


1-26-1.1 Interim Rules Review Committee created--Composition--Appointments--Terms of office--Vacanc...
     1-26-1.1.   Interim Rules Review Committee created--Composition--Appointments--Terms of office--Vacancies. There is hereby created a legislative committee of six members, no more than four of whom shall be of the same political party, which shall be designated the Interim Rules Review Committee. The committee shall be composed of three members of the Senate to be appointed by the president pro tempore of the Senate and three members of the House of Representatives to be appointed by the speaker of the House of Representatives and no more than two senators and two representatives shall be of the same political party. Members shall be appointed prior to the adjournment of each regular session in odd-numbered years and shall serve for two-year terms ending at noon on the second Tuesday in January in each odd-numbered year; however, members shall serve until their successors are appointed. Vacancies on the committee shall be filled by the original appointing authority for the remainder of the term. A vacancy shall exist whenever a committee member ceases to be a member of the Legislature.

Source: SL 1972, ch 8, § 1; SL 1975, ch 16, § 9; SL 1983, ch 13, § 1; SL 2005, ch 17, § 1.


1-26-1.2 Chair of rules review committee--Schedule of meetings--Compensation of members--Secretary....
     1-26-1.2.   Chair of rules review committee--Schedule of meetings--Compensation of members--Secretary. The interim rules review committee shall choose a chair from its members and prescribe its rules of procedure. Meetings of the committee shall be at the call of the chair or a majority of the committee.
     On or before the first Monday following the last day of the legislative session, the committee and the agencies shall determine a schedule of dates for meetings to be held during the following twelve months. However, the committee is not required to hold a meeting if no proposed rules have been filed pursuant to subdivision 1-26-6(4) prior to the meeting.
     The committee shall review all proposed agency rules and make recommendations to the agencies regarding rules and legislation authorizing rules and to the Legislature regarding administrative law. All meetings, regular or special, shall be open to the public and any interested person may be heard and present evidence.
     Members of the committee shall be compensated for their attendance at meetings and for time spent in conduct of committee business at rates established by the Executive Board of the Legislative Research Council. The director of the Legislative Research Council, or one or more persons from the director's office, shall act as secretary to the committee, or the committee may employ a secretary.

Source: SL 1972, ch 8, § 2; SL 1974, ch 16, § 3; SL 1989, ch 16, § 1; SL 1990, ch 20, § 1; SL 2000, ch 4, § 3.


1-26-1.3 Delegation of duties by director.
     1-26-1.3.   Delegation of duties by director. The director may delegate the duties imposed by this chapter to other persons in the Legislative Research Council's office. Each person to whom the duties are delegated has the same power and authority as the director for the purposes of this chapter. The papers specifying the delegation of duties shall be filed with the secretary of state.

Source: SL 1977, ch 13, § 11; SL 1989, ch 16, § 2; SL 2009, ch 9, § 1.


1-26-2 Agency materials available for public inspection--Derogatory materials.
     1-26-2.   Agency materials available for public inspection--Derogatory materials. Each agency shall make available for public inspection all rules, final orders, decisions, opinions, intra-agency memoranda, together with all other materials, written statements of policy or interpretations formulated, adopted, or used by the agency in the discharge of its functions. An agency shall hold confidential materials derogatory to a person but such information shall be made available to the person to whom it relates.

Source: SDC 1939, § 55.1203; SL 1966, ch 159, § 2; SL 1972, ch 8, § 4.


1-26-2.1 Small business impact statements--Content.
     1-26-2.1.   Small business impact statements--Content. An agency shall, when submitting any proposed rule that will have a direct impact on small business, prepare an impact statement that includes the following:
             (1)      A narrative explanation in plain, easy-to-read language of the effect of the rule on small business, the basis for its enactments, and why the rule is needed;
             (2)      An identification and estimate of the number of small businesses subject to the proposed rule;
             (3)      The projected reporting and recordkeeping required for compliance with the proposed rule, including the types of professional skills necessary for preparation of the report or record;
             (4)      A statement of the probable effect on impacted small business; and
             (5)      A description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed rule.
     An agency is only required to use readily available information and existing resources to prepare the impact statement.

Source: SL 2004, ch 20, § 2; SL 2006, ch 8, § 1.


1-26-2.2
     1-26-2.2.   Repealed by SL 2006, ch 7, § 1.


1-26-3
     1-26-3.   Repealed by SL 1972, ch 8, § 36.


1-26-4 Notice, service, and hearing required for adoption of rules--Service on interim committee-...
     1-26-4.   Notice, service, and hearing required for adoption of rules--Service on interim committee--Waiver of service. The following notice, service, and public hearing procedure shall be used to adopt, amend, or repeal a permanent rule:
             (1)      An agency shall serve a copy of a proposed rule and any publication described in § 1-26-6.6 upon the departmental secretary, bureau commissioner, public utilities commissioner, or constitutional officer to which it is attached for the secretary's, commissioner's, or officer's written approval to proceed;
             (2)      After receiving the written approval of the secretary, commissioner, or officer to proceed, the agency shall serve the director with a copy of: the proposed rules; any publication described in § 1-26-6.6; the fiscal note described in § 1-26-4.2; the impact statement on small business described in § 1-26-2.1; and the notice of hearing required by § 1-26-4.1. The copy of these documents shall be served at least twenty days before the public hearing to adopt the proposed rules. Any publication described in § 1-26-6.6 shall be returned to the agency upon completion of the director's review and retained by the agency. Also, twenty days before the public hearing, the agency shall serve the commissioner of the Bureau of Finance and Management with a copy of: the proposed rules; the fiscal note described in § 1-26-4.2; the impact statement on small business described in § 1-26-2.1; and the notice of hearing required by § 1-26-4.1;
             (3)      The agency shall publish the notice of hearing in the manner prescribed by § 1-26-4.1, at least twenty days before the public hearing;
             (4)      After reviewing the proposed rule pursuant to § 1-26-6.5, the director shall advise the agency of any recommended corrections to the proposed rule. If the agency does not concur with any recommendation of the director, the agency may appeal the recommended correction to the Interim Rules Review Committee for appropriate action;
             (5)      The agency shall afford all interested persons reasonable opportunity to submit amendments, data, opinions, or arguments at a public hearing held to adopt the rule. The hearing may be continued from time to time. The agency shall keep minutes of the hearing. A majority of the members of any board or commission authorized to pass rules must be present during the course of the public hearing;
             (6)      If the agency is headed by a secretary, commissioner, or officer, the agency shall accept written comments regarding the proposed rule for a period of ten days after the public hearing. If the agency promulgating the rule is a part-time citizen board, commission, committee, or task force, the record of written comments shall be closed at the conclusion of the public hearing. However, the hearing may be specifically continued for the purpose of taking additional comments;
             (7)      After the written comment period, the agency shall fully consider all amendments, data, opinions, or arguments regarding the proposed rule. A proposed rule may be modified or amended at this time to include or exclude matters which were described in the notice of hearing; and
             (8)      The agency shall serve the minutes of the hearing, a complete record of written comments, the impact statement on small business, the fiscal note, the information required in § 1-26-4.8, and a corrected copy of the rules on the members of the Interim Rules Review Committee at least five days before the agency appears before the committee to present the rules.
     The time periods specified in this section may be extended by the agency. The requirement to serve the committee in subdivision (8) may be waived by the committee chair if the agency presents sufficient reasons to the committee chair that the agency is unable to comply with the time limit. The waiver may not be granted solely for the convenience of the agency.

Source: SL 1966, ch 159, § 3; SL 1972, ch 8, § 5; SL 1974, ch 16, § 4; SL 1975, ch 16, § 10; SL 1975, ch 18; SL 1976, ch 15, § 1; SL 1976, ch 27, § 2; SL 1977, ch 13, § 3; SL 1978, ch 13, § 1; SL 1979, ch 8, § 1; SL 1981, ch 8; SL 1986, ch 20, § 1; SL 1989, ch 16, § 3; SL 1996, ch 11, § 1; SL 1997, ch 10, § 1; SL 1998, ch 9, § 1; SL 2001, ch 11, § 1; SL 2002, ch 15, § 1; SL 2004, ch 20, § 3; SL 2005, ch 18, § 1; SL 2009, ch 9, § 2.


1-26-4.1 Notice of hearing on proposed rule--Contents--Publication--Mailing.
     1-26-4.1.   Notice of hearing on proposed rule--Contents--Publication--Mailing. The notice of a public hearing of an agency's intent to adopt, amend, or repeal a rule shall be published in a manner selected to notify persons likely to be affected by the proposed rule. At a minimum the notice of the public hearing shall be published in at least three newspapers of general circulation in different parts of the state. The provisions of chapter 17-2 do not apply to notices required by this section.
     The notice of a public hearing or the notice of intent to adopt an emergency rule shall be mailed to each person who has made a timely request of the agency for advance notice of its rule-making proceedings.
     A notice of hearing or a notice of intent to adopt emergency rules shall contain a narrative description of the effect of the proposed rule and the reasons for adopting the proposed rule. A notice of hearing shall also state where and when the hearing will be held, how amendments, data, opinions, and arguments may be presented, and how the public may obtain copies of the proposed rule.

Source: SL 1972, ch 8, § 6; SL 1975, ch 16, § 13; SL 1976, ch 15, § 2; SL 1977, ch 13, § 5; SL 1978, ch 13, § 2; SL 1984, ch 9, § 1; SL 1986, ch 20, § 2; SL 2009, ch 9, § 3.


1-26-4.2 Fiscal note submitted with proposed rule--Fiscal note of bureau--Transmitting copies.
     1-26-4.2.   Fiscal note submitted with proposed rule--Fiscal note of bureau--Transmitting copies. An agency shall, when submitting any proposed rule except an emergency rule, include a fiscal note. The fiscal note shall state what effect, if any, the proposed rule will have on the revenues, expenditures, or fiscal liability of the state or its agencies and subdivisions. The fiscal note shall include an explanation of how such effect, if any, was computed.
     The Bureau of Finance and Management shall prepare its own fiscal note and serve it on the agency, the director and the cochairmen of the Joint Appropriations Committee prior to hearing. If a proposed rule has a negative fiscal impact on a political subdivision, the agency shall direct the bureau to transmit a copy of the bureau's fiscal note to the South Dakota Municipal League, the Associated School Boards of South Dakota, and the South Dakota County Commissioners Association, prior to the hearing.

Source: SL 1975, ch 15; SL 1976, ch 15, § 3; SL 1977, ch 15; SL 1983, ch 5, § 1; SL 1989, ch 16, § 4.


1-26-4.3 Time limits for adoption of rules--Presentation to review committee.
     1-26-4.3.   Time limits for adoption of rules--Presentation to review committee. No permanent rule may be adopted if more than seventy-five days have passed from the date the public hearing on the rule commenced. The agency shall appear before the Interim Rules Review Committee and present the proposed permanent rule to the committee within the seventy-five-day period before the rule is filed with the secretary of state. If the Interim Rules Review Committee fails to meet on the proposed permanent rule during the seventy-five-day period, and if the agency has complied with subdivisions 1-26-6(1) to 1-26-6(4), inclusive, the agency may complete the rules adoption process by complying with subdivision 1-26-6(5) notwithstanding subdivision 1-26-6(6). No emergency rule may be adopted if more than thirty days have passed from the date the notice of intent to adopt an emergency rule was published in the manner prescribed in § 1-26-4.1.

Source: SL 1975, ch 16, § 14; SL 1987, ch 23; SL 1989, ch 16, § 5; SL 1991, ch 12; SL 1996, ch 11, § 2; SL 2000, ch 4, § 1.


1-26-4.4 Time for promulgation of rules after passage of legislative authority.
     1-26-4.4.   Time for promulgation of rules after passage of legislative authority. If an act of the Legislature, which becomes effective on the date set by § 2-14-16, contains an authorization for an agency to promulgate rules, the agency may perform the acts specified in § 1-26-4 or 1-26-5 any time after the Governor has signed the act containing the authorization to promulgate rules. However, the rules do not become effective until the act authorizing the agency to promulgate rules is effective.

Source: SL 1977, ch 13, § 4; SL 1986, ch 20, § 4; SL 1989, ch 17.


1-26-4.5 Validation of prior notices of hearings--Limitation on enforcement of vested rights affect...
     1-26-4.5.   Validation of prior notices of hearings--Limitation on enforcement of vested rights affected. All notices of hearings on the adoption of rules made prior to July 1, 1984, are hereby in all respects legalized and validated. If a person has a vested right in any real or personal property by reason of an error in a notice or an error in the method of giving a notice referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1985, such right shall be forever barred. An action or proceeding involving real property may not be brought or maintained in a court of this state unless a notice of such action, made in accordance with chapter 15-10, was recorded in the office of the register of deeds of the county in which the affected real property is located prior to July 1, 1985.

Source: SL 1984, ch 9, § 3.


1-26-4.6 Notices of intent to adopt emergency rules validated--Time for enforcing rights by reason ...
     1-26-4.6.   Notices of intent to adopt emergency rules validated--Time for enforcing rights by reason of error in notice--Recordation of notice prerequisite to suit under § 1-26-4.1. . All notices of intent to adopt emergency rules made prior to March 14, 1985, are hereby in all respects legalized and validated. If a person has a vested right in any real or personal property by reason of an error in a notice or an error in the method of giving a notice referred to in subdivision 1-26-4(2), and if no action or proceeding to enforce such right was commenced prior to July 1, 1986, such right is forever barred.
     An action or proceeding brought pursuant to § 1-26-4.1 involving real property may not be brought or maintained in a court of this state unless a notice of such action, made in accordance with chapter 15-10, was recorded in the office of the register of deeds of the county in which the affected real property is located prior to July 1, 1987.

Source: SL 1986, ch 20, § 3.


1-26-4.7 Reversion to step in adoption procedure.
     1-26-4.7.   Reversion to step in adoption procedure. The Interim Rules Review Committee may require an agency to revert to any step in the adoption procedure provided in § 1-26-4 if, in the judgment of the committee:
             (1)      The substance of the proposed rule has been significantly rewritten from the originally proposed rule which was not the result of testimony received from the public hearing;
             (2)      The proposed rule needs to be significantly rewritten in order to accomplish the intent of the agency;
             (3)      The proposed rule needs to be rewritten to address the recommendations or objections of the Interim Rules Review Committee;
             (4)      The proposed rule is not a valid exercise of delegated legislative authority;
             (5)      The proposed rule is not in proper form;
             (6)      The notice given prior to the proposed rule's adoption was not sufficient to give adequate notice to persons likely to be affected by the proposed rule;
             (7)      The proposed rule is not consistent with the expressed legislative intent pertaining to the specific provision of law which the proposed rule implements;
             (8)      The proposed rule is not a reasonable implementation of the law as it affects the convenience of the general public or persons likely affected by the proposed rule; or
             (9)      The proposed rule may impose more than nominal costs upon a unit of local government or school district when the unit of local government or school district may not have sufficient funding to perform the activity required by the proposed rule.
     If the committee requires an agency to revert to any step in the adoption procedure pursuant to this section, the time limitations set by chapter 1-26 shall also revert to the same step.

Source: SL 1990, ch 21; SL 2003, ch 17, § 1; SL 2004, ch 21, § 1; SL 2010, ch 8, § 1; SL 2011, ch 10, § 1.


1-26-4.8 Fee increase in proposed rule--Agency financial resource information--Submission to review...
     1-26-4.8.   Fee increase in proposed rule--Agency financial resource information--Submission to review committee. If an agency proposes a rule to increase a fee, the agency shall provide information to the Interim Rules Review Committee about the financial resources available to the agency. This information consists of the agency's beginning fund balance, receipts, disbursements, ending fund balance for each of the last two fiscal years and consists of the agency's beginning fund balance, projected receipts, projected disbursements, and ending balance for the current fiscal year and the next fiscal year.

Source: SL 2005, ch 18, § 3.


1-26-4.9 Authority of Interim Rules Review Committee.
     1-26-4.9.   Authority of Interim Rules Review Committee. The Interim Rules Review Committee may:
             (1)      Declare that the rule-making process is complete to the satisfaction of the committee;
             (2)      Revert the rule to an earlier step in the rule adoption procedure pursuant to § 1-26-4.7 to consider an amendment to the proposed rule; or
             (3)      Move to suspend the proposed rule pursuant to § 1-26-38.

Source: SL 2013, ch 10, § 1.


1-26-4.10 Resubmission of amended rule to review committee--Hearing not required.
     1-26-4.10.   Resubmission of amended rule to review committee--Hearing not required. If the Interim Rules Review Committee reverts a rule to consider amendments to the proposed rule, the agency may make the amendment and resubmit the rule as amended at the next meeting of the Interim Rules Review Committee. An agency is not required to hold a hearing on an amendment made under this section. If the agency makes the amendment, the amended rule shall be published in the next register.

Source: SL 2013, ch 10, § 2.


1-26-5 Notice of proposed emergency rule--Service--Use of emergency rule adoption procedure.
     1-26-5.   Notice of proposed emergency rule--Service--Use of emergency rule adoption procedure. Prior to the adoption or amendment of an emergency rule, an agency shall publish a notice of intent to adopt an emergency rule in the manner prescribed in § 1-26-4.1 and shall serve on the person specified by subdivision 1-26-4(1), each member of the Interim Rules Review Committee, and the director:
             (1)      A copy of the proposed rule, which shall bear a special number to distinguish it from a permanent rule;
             (2)      Any publication described in § 1-26-6.6 which shall be returned to the agency upon completion of the director's review and retained by the agency; and
             (3)      A statement, with the reasons, that the emergency procedure is necessary: because of imminent peril to the public health, safety, or welfare; to prevent substantial unforeseen financial loss to state government; or because of the occurrence of an unforeseen event at a time when the adoption of a rule in response to such event by the emergency procedure is required to secure or protect the best interests of the state or its residents.
     Any agency may use the emergency rule adoption procedure. However, no agency may use the emergency rule adoption procedure for the convenience of the agency merely to avoid the consequences for failing to timely promulgate rules.

Source: SL 1966, ch 159, § 3; repealed SL 1972, ch 8, § 36; re-enacted SL 1975, ch 16, § 11; SL 1978, ch 13, § 3; SL 1986, ch 20, § 5; SL 1989, ch 16, § 6; SL 1990, ch 22; SL 1997, ch 11, § 1; SL 1998, ch 9, § 3; SL 2003, ch 17, § 2; SL 2006, ch 4, § 3; SL 2009, ch 9, § 4.


1-26-5.1 Temporary suspension by emergency rule--Reversion of amended rule to original form.
     1-26-5.1.   Temporary suspension by emergency rule--Reversion of amended rule to original form. A rule may be temporarily suspended, but not repealed, by the adoption of an emergency rule. A rule amended by an emergency rule will revert to its original form ninety days after it has been in effect or at an earlier date if so specified in the rule, unless further amended within that period.

Source: SL 1975, ch 16, § 15; SL 1977, ch 13, § 6.


1-26-5.2
     1-26-5.2.   Repealed by SL 1979, ch 8, § 2.


1-26-6 Completion of adoption of rule or change in rules.
     1-26-6.   Completion of adoption of rule or change in rules. The adoption, amendment, or repeal of a rule is complete when:
             (1)      All the requirements of § 1-26-4 have been completed or, if the rule is an emergency rule, three days have passed since all the requirements of § 1-26-5 have been complied with;
             (2)      It has been signed by a majority of the members of the multi-member body or by the officer having the authority to adopt it;
             (3)      It has been signed by the director;
             (4)      A copy has been filed with the director, in a form prescribed by the director to show amendments, deletions, and other changes to existing rules, for use in preparation of copy for the Administrative Rules of South Dakota;
             (5)      The rule and a certificate have been filed with the secretary of state. The certificate shall affirm that the rule filed is a true and correct copy of the rule as adopted and that the agency has complied with § 1-26-4 or 1-26-5, and with this section; and
             (6)      For a permanent rule, the agency has appeared and presented the proposed rule to the Interim Rules Review Committee.
     Certificates required by this section shall be affidavits executed, under oath, by the officers authorized by statute to promulgate the rule. If a rule is promulgated by a multi-member body, the certificate shall be signed by its presiding officer.
     Emergency rules are provisionally effective immediately after being filed. Notwithstanding § 15-6-6(a), all other rules are provisionally effective on the twentieth day after being filed, not counting the day of filing. In either case a later effective date may be specified as part of the rules being filed. A rule which is not yet effective or a provisionally effective rule may be suspended in the manner specified by § 1-26-38 any time prior to the first day of July of the year following the year in which it became, or would have become, effective. The rule's provisional status ends at that time, and the rule may not thereafter be suspended by the rules committee. Unless suspended, a provisionally effective rule shall be enforced by the agency and the courts as if it were not so conditioned.
     No rule promulgated after June 30, 1975, is valid unless adopted in compliance with § 1-26-4 or 1-26-5, and this section and copies of the rule are made available to the public upon request, by the agency.

Source: SDC 1939, §§ 55.1203, 65.0106; SL 1966, ch 159, §§ 3, 4 (1); SDCL, § 1-26-7; SL 1972, ch 8, §§ 7, 10, 12; SDCL Supp, § 1-26-6.4; SL 1973, ch 9, § 1; SL 1974, ch 16, §§ 5, 7; SL 1975, ch 16, § 12; SL 1976, ch 15, § 4; SL 1977, ch 13, § 7; SL 1978, ch 13, § 4; SL 1986, ch 20, § 6; SL 1989, ch 16, § 7; SL 1998, ch 9, § 2; SL 2000, ch 4, § 2; SL 2004, ch 22, § 1.


1-26-6.1 Restriction on incorporation of statutory material.
     1-26-6.1.   Restriction on incorporation of statutory material. An agency may refer to statute but may not incorporate statutory provisions, other than definitions, in their rules nor publish or distribute statutory material in conjunction with their rules unless required by law or expressly authorized by the Code Commission pursuant to § 2-16-8.1.

Source: SL 1972, ch 8, § 8; SL 1984, ch 10, § 1; SL 1995, ch 14, § 3.


1-26-6.2 Uniform style for rules--Required contents.
     1-26-6.2.   Uniform style for rules--Required contents. The director shall prescribe a uniform style in which rules shall be prepared and the standard form to be used in filing rules pursuant to this chapter. Such form shall contain a provision for a reference to be made by the agency for each rule proposed by it, citing its general authority to promulgate rules and then refer to the section, subdivision, or subsection of statute which the rule is intended to implement, and direct the agency to identify prior rules amended or repealed.

Source: SDC 1939, § 65.0106, 2nd par; repealed SL 1966, ch 159, § 19; re-enacted SL 1972, ch 8, § 9; SL 1989, ch 16, § 8.


1-26-6.3 Notice that rules do not conform--Redrafting and filing required.
     1-26-6.3.   Notice that rules do not conform--Redrafting and filing required. The director may notify any agency whose rules are not in the proper style and form. A copy of this notice shall be filed with the secretary of state. One hundred eighty days after an agency receives such notification, the rules of that agency shall be of no further force and effect unless redrafted in the prescribed style and form and filed with the secretary of state and the director.

Source: SL 1972, ch 8, § 9; SL 1989, ch 16, § 9; SL 2009, ch 9, § 5.


1-26-6.4
     1-26-6.4.   Repealed by SL 1975, ch 16, § 25.


1-26-6.5 Review by director--Notice to agency of need for change.
     1-26-6.5.   Review by director--Notice to agency of need for change. The director shall review each rule for compliance with the requirements for form, style, and clarity. The director shall review each rule for legality. The review for legality is a determination that the rule is authorized by the standards provided in the statutes cited by the agency to promulgate the rule. The director shall review the statement of reasons that the emergency procedure is necessary. If the director finds need for change, the director shall make the requirements known in writing to the agency prior to the hearing or within three days in the case of emergency rules.

Source: SL 1972, ch 8, § 11; SL 1973, ch 9, § 2; SL 1974, ch 16, § 6; SL 1975, ch 16, § 18; SL 1986, ch 20, § 7; SL 1989, ch 16, § 10; SL 1990, ch 20, § 2; SL 2009, ch 9, § 6.


1-26-6.6 Incorporation by reference to generally available materials--Description--Reference note--...
     1-26-6.6.   Incorporation by reference to generally available materials--Description--Reference note--Identification of agency and rule. An agency may adopt other comprehensive regulations as its own by making reference to them in a rule, but only when the comprehensive regulations are published by an organization which is not part of the state government and only when the publication is generally available to the public at a reasonable cost. A rule which incorporates material by reference shall describe the exact section or portion of the publication which is being incorporated. Immediately following a rule which incorporates published material by reference, other than material contained in the code of federal regulations, the federal register, the United States code or the United States statutes at large, the agency shall place a reference note which identifies the publication by its title, date of publication, or enactment and author, and which states where the publication may be obtained and its cost, if any. A statement shall be attached to the face of the publication which shall state the agency's name, the section number of the rule which incorporates the material within, and the date the rule was served pursuant to § 1-26-4 or 1-26-5 or filed pursuant to § 1-26-6.

Source: SL 1974, ch 16, § 11; SL 1975, ch 16, § 19.


1-26-6.7 Procedure for amendment, suspension or repeal of rules.
     1-26-6.7.   Procedure for amendment, suspension or repeal of rules. Once a rule has been adopted, it may not be amended, repealed, or suspended except by compliance with § 1-26-4 or 1-26-5, and with § 1-26-6, even if it has not taken effect.

Source: SL 1975, ch 16, § 16.


1-26-6.8 Rules unenforceable until properly adopted.
     1-26-6.8.   Rules unenforceable until properly adopted. No agency rule may be enforced by the courts of this state until it has been adopted in conformance with the procedures set forth in this chapter.

Source: SL 1977, ch 13, § 8.


1-26-6.9 Licensing board or commission fees--Criteria and limitation.
     1-26-6.9.   Licensing board or commission fees--Criteria and limitation. If a professional or occupational licensing board or commission is authorized in statute to establish fees by rule and no maximum fee limit is specified, the fees shall be reasonable and necessary to provide enough money to meet the budgetary needs of the licensing board or commission for such things as: per diem, travel expenses, office expense, salaries and benefits, utilities, supplies, testing, licensing, inspections, disciplinary actions, and legal fees. However, the total amount of increase in the fees imposed by a licensing board or commission may not exceed the previous year's budget by more than twenty percent.

Source: SL 1986, ch 21.


1-26-6.10 Restriction of licensee's right or privilege to carry or possess pistol prohibited.
     1-26-6.10.   Restriction of licensee's right or privilege to carry or possess pistol prohibited. No state agency may adopt or promulgate any rule that restricts any right or privilege to carry or possess a pistol in contravention to authority being exercised in accordance with being licensed to carry a concealed pistol pursuant to chapter 23-7.

Source: SL 2006, ch 5, § 1.


1-26-7 Records retained--Copies--Public inspection of current rules.
     1-26-7.   Records retained--Copies--Public inspection of current rules. Each agency shall keep the original records, documents, and instruments required by this chapter and shall make copies of all records, documents, and exhibits available to members of the Legislature upon request. The secretary of state shall keep a copy of the agency's current rules and the certificates pertaining thereto, which shall be open to public inspection.

Source: SDC 1939, §§ 55.1203, 65.0106; SL 1966, ch 159, § 4 (1); SL 1972, ch 8, § 12; SL 1974, ch 16, § 7; SL 1975, ch 16, § 20; SL 2009, ch 9, § 7.


1-26-7.1 Agency's statement of reasons for adoption or rejection of rule.
     1-26-7.1.   Agency's statement of reasons for adoption or rejection of rule. Upon adoption of a rule or upon the rejection of a petition filed pursuant to § 1-26-13, an agency, if requested to do so in writing by an interested person either prior to adoption or rejection or within thirty days thereafter, shall issue a written concise statement of the principal reasons for and against the rule's adoption, incorporating therein its reasons for overruling the considerations urged against the rule's adoption or rejection. A copy of the statement shall be served on the members of the Interim Rules Review Committee and the director of the Legislative Research Council.

Source: SL 1966, ch 159, § 3; SDCL, § 1-26-4 (2); SL 1972, ch 8, § 5; SL 1975, ch 16, § 17; SL 1983, ch 5, § 2; SL 1997, ch 12, § 1.


1-26-8 Effective date of rules--Emergency rules.
     1-26-8.   Effective date of rules--Emergency rules. Each rule is effective twenty days after filing with the secretary of state, except that:
             (1)      If a later date is required by statute or specified in the rule, the later date is the effective date;
             (2)      Subject to applicable constitutional or statutory provisions, an emergency rule is effective immediately upon filing with the secretary of state, or at a stated date less than twenty days later. No emergency rule may remain in effect for a period of longer than ninety days.

Source: SDC 1939, § 65.0106; SL 1966, ch 159, § 4 (2); SL 1972, ch 8, § 13; SL 1975, ch 16, § 21; SL 1976, ch 15, § 5; SL 2009, ch 9, § 8.


1-26-8.1 Retroactive effect of acts prohibiting certain rules--Repealed or unconstitutional statute...
     1-26-8.1.   Retroactive effect of acts prohibiting certain rules--Repealed or unconstitutional statutes--Effect of transfer of rule-making authority to another agency. If an act is passed by the Legislature which prohibits an agency from passing rules relating to a certain subject, any prior rule promulgated by that agency relating to that subject shall become void on the effective date of the act.
     If a statute which authorizes an agency to pass a rule is repealed, or declared unconstitutional by the South Dakota or United States Supreme Court, any rule which was authorized by that statute is void unless there is another valid statute which also authorized the agency to pass that rule. If an agency's authority to adopt rules is transferred to another agency, and no provision is specified for the disposition of the first agency's rules in the legislation or executive order which made the transfer, the rules of the first agency shall be the rules of the second agency until they are amended or repealed.

Source: SL 1977, ch 13, § 10; SL 1983, ch 5, § 3.


1-26-8.2 Petition for delay in effective date of rule--Grant or denial--Maximum delay--Filings--One...
     1-26-8.2.   Petition for delay in effective date of rule--Grant or denial--Maximum delay--Filings--One delay--Repeal of rule. After a rule has been adopted and filed with the secretary of state, any person may petition the agency which adopted the rule to delay the effective date of the rule. The petition must be filed with the agency at least ten days prior to the effective date of the rule. The agency must grant or deny the petition, with or without a hearing, within ten days of filing. If the petition is granted, the effective date of the rule may not be delayed more than ninety days. A copy of the petition and a statement of the agency justifying the granting of the petition shall be sent to the chairman of the Interim Rules Review Committee at the time the decision is made. A copy of the statement granting the petition shall be filed with the secretary of state at the time the decision is made.
     The effective date of a rule may be delayed only once, and an agency may repeal the rule during the period of the delay.

Source: SL 1979, ch 8, § 5.


1-26-8.3 Retroactive effect of rule--Burden of proving authority or necessity.
     1-26-8.3.   Retroactive effect of rule--Burden of proving authority or necessity. If any rule is proposed to have retroactive effect, the burden is on the agency to show that the retroactivity is authorized by law or is necessary to implement new provisions of law.

Source: SL 1985, ch 13.


1-26-9
     1-26-9.   Transferred to § 1-26A-1.


1-26-10
     1-26-10.   Repealed by SL 1972, ch 8, § 36.


1-26-11 Pamphlet publication of rules--Supervision.
     1-26-11.   Pamphlet publication of rules--Supervision. Each agency promulgating professional or regulatory examining and licensing rules or other rules under this chapter may cause the same, or any portion thereof, to be published in pamphlet form, subject to the supervision of the director regarding style and form and such other limitations of certification.

Source: SL 1972, ch 8, § 15; SL 1989, ch 16, § 11.


1-26-12 Distribution and sale of publications and copies of rules.
     1-26-12.   Distribution and sale of publications and copies of rules. Publications and copies of rules authorized under or required by this chapter shall upon request be made available to agencies and officials of this state free of charge and to other persons at prices fixed by the Interim Rules Review Committee to cover mailing and publication costs. An agency may not charge the public for copies of notices or intentions to pass rules required by § 1-26-4.1. The provisions of § 1-8-10 except as to certification do not apply to copies of publications distributed by the secretary of state under this chapter.

Source: SDC 1939, § 65.0106; SL 1966, ch 159, § 5 (4); SL 1972, ch 8, § 16; SL 1977, ch 13, § 9; SL 1983, ch 5, § 4; SL 1984, ch 10, § 3.


1-26-12.1 List of rules and organizational statements.
     1-26-12.1.   List of rules and organizational statements. To assist interested persons dealing with it, each agency which has adopted rules shall make available, either electronically or through paper copy, a list of the agency's rules and a descriptive statement of its central and field organization. This information includes the locations of persons and places from which the public can secure information, make submittals or requests, or obtain decisions.

Source: SL 1972, ch 8, § 17; SL 1975, ch 16, § 23; SL 2009, ch 9, § 9.


1-26-13 Petition for rules--Denial or initiation of proceedings--Copies to Interim Rules Committee...
     1-26-13.   Petition for rules--Denial or initiation of proceedings--Copies to Interim Rules Committee and director. An interested person, other than an inmate as defined in § 1-15-20.1, may petition an agency requesting the promulgation, amendment, or repeal of a rule. The petition shall contain the text or substance of any new rule or amendment sought, the identification of any rule sought to be repealed, reasons for the proposal, and the name and address of the petitioner. Within thirty days after submission of a petition, the agency either shall deny the petition in writing (stating its reasons for the denials) or shall initiate rule-making proceedings in accordance with § 1-26-4. The agency shall serve a copy of any petitions and denials on the members of the Interim Rules Review Committee and the director of the Legislative Research Council.

Source: SL 1966, ch 159, § 6; SL 1972, ch 8, § 18; SL 1975, ch 16, § 24; SL 1997, ch 12, § 2; SL 1999, ch 6, § 2.


1-26-13.1 Service complete when deposited in mail.
     1-26-13.1.   Service complete when deposited in mail. Notwithstanding § 15-6-6(e), any service required by §§ 1-26-1 to 1-26-13, inclusive, shall, when performed by mail, be complete when the material to be served is deposited with the United States postal service.

Source: SL 1977, ch 13, § 2.


1-26-14 Declaratory judgment on rules.
     1-26-14.   Declaratory judgment on rules. The validity or applicability of a rule may be determined in an action for declaratory judgment in the circuit court for the county of the plaintiff's residence, if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.

Source: SL 1966, ch 159, § 7.


1-26-15 Declaratory rulings by agencies.
     1-26-15.   Declaratory rulings by agencies. Each agency shall provide by rule for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency. No inmate as defined in § 1-15-20.1 may petition an agency for a declaratory ruling on the applicability of statutory provisions, rules, or orders of the agency. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases. A copy of all such rulings shall be filed with the director for publication in the Administrative Rules of South Dakota.

Source: SL 1966, ch 159, § 8; SL 1979, ch 8, § 3; SL 1989, ch 16, § 12; SL 1990, ch 20, § 3; SL 1993, ch 19, § 8; SL 1995, ch 8, § 13; SL 1999, ch 6, § 3.


1-26-16 Notice and hearing required in contested cases.
     1-26-16.   Notice and hearing required in contested cases. In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.

Source: SL 1966, ch 159, § 9 (1).


1-26-16.1
     1-26-16.1.   Repealed by SL 1983, ch 7.


1-26-17 Contents of notice in contested cases.
     1-26-17.   Contents of notice in contested cases. The notice shall include:
             (1)      A statement of the time, place, and nature of the hearing;
             (2)      A statement of the legal authority and jurisdiction under which the hearing is to be held;
             (3)      A reference to the particular sections of the statutes and rules involved;
             (4)      A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished;
             (5)      A statement of any action authorized by law, which may affect the parties, as a result of any decision made at the hearing, whether it be the revocation of a license, the assessment of a fine or other effect;
             (6)      A statement that the hearing is an adversary proceeding and that a party has the right at the hearing, to be present, to be represented by a lawyer, and that these and other due process rights will be forfeited if they are not exercised at the hearing;
             (7)      Except in contested cases before the Public Utilities Commission, a statement that 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 to the agency no later than ten days after service of a notice of hearing issued pursuant to § 1-26-17;
             (8)      A statement that the decision based on the hearing may be appealed to the circuit court and the State Supreme Court as provided by law.

Source: SL 1966, ch 159, § 9 (2); SL 1978, ch 14, § 1; SL 2003, ch 18, § 3; SL 2007, ch 7, § 1.


1-26-17.1 Intervention in contested case by person with pecuniary interests.
     1-26-17.1.   Intervention in contested case by person with pecuniary interests. A person who is not an original party to a contested case and whose pecuniary interests would be directly and immediately affected by an agency's order made upon the hearing may become a party to the hearing by intervention, if timely application therefor is made.

Source: SL 1978, ch 13, § 5.


1-26-18 Rights of parties at hearings on contested cases--Summary disposition of certain cases.
     1-26-18.   Rights of parties at hearings on contested cases--Summary disposition of certain cases. Opportunity shall be afforded all parties to respond and present evidence on issues of fact and argument on issues of law or policy. However, each agency, upon the motion of any party, may dispose of any defense or claim:
             (1)      If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and a party is entitled to a judgment as a matter of law; or
             (2)      At the close of the evidence offered by the proponent of the defense or claim if it determines that the evidence offered by the proponent of the defense or claim is legally insufficient to sustain the defense or claim.
     A party to a contested case proceeding may appear in person or by counsel, or both, may be present during the giving of all evidence, may have reasonable opportunity to inspect all documentary evidence, may examine and cross-examine witnesses, may present evidence in support of the party's interest, and may have subpoenas issued to compel attendance of witnesses and production of evidence in the party's behalf.

Source: SL 1966, ch 159, § 9 (3); SL 1972, ch 8, § 19; SL 1978, ch 13, § 6; SL 2002, ch 16, § 1.


1-26-18.1
     1-26-18.1, 1-26-18.2.   Repealed by SL 1995, ch 8, §§ 14, 15.


1-26-18.3 Request to use Office of Hearing Examiners in certain contested cases.
     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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 consultations by agency personnel--Investigating officer disqualified from decisi...
     1-26-26.   Ex parte consultations by agency personnel--Investigating officer disqualified from decision on hearing--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 shall 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 his 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, he shall not participate in the conduct of the hearing nor take part in rendering the decision thereon, but he may appear as a witness and give advice as to procedure. If, because of such disqualification, there is no person assigned to conduct the hearing or render the decision, the agency shall appoint someone pursuant to § 1-26-18.1 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.


1-26-27 License proceeding treated as contested case.
     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 lic...
     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....
     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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.
     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 the appeal and shall serve on the other parties a copy of such statement. If any other party wishes to raise additional issues on appeal, the party shall file an additional statement of 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.


1-26-32 When agency decision in contested case becomes effective--Application for stay pending app...
     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.
     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.
     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.
     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.
     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.
     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 original or a certified 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 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.

Source: SL 1966, ch 159, § 15 (4); SL 1977, ch 13, § 14; SL 1987, ch 396 (Supreme Court Rule 86-36).


1-26-33.1
     1-26-33.1.   Transferred to § 1-26-33.6.


1-26-33.2 Time for serving briefs.
     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.
     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.
     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.


1-26-33.5
     1-26-33.5.   Repealed by SL 1996, ch 158, § 44.


1-26-33.6 Speedy hearing and determination.
     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.
     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.
     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...
     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.
     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 him by filing a notice of review with the clerk of the circuit court within twenty days after service of the notice of appeal. 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.


1-26-37 Appeal to Supreme Court.
     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 du...
     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.
     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.


1-26-39
     1-26-39.   Repealed by SL 1972, ch 8, § 36.


1-26-40 Severability of provisions.
     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.
     1-26-41.   Citation of chapter. This chapter may be cited as the South Dakota Administrative Procedures Act.

Source: SL 1977, ch 13, § 17.


Title 1

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