Nancy Thielen School of Piano v. State Board of Equalization

WUEST, Justice.

Nancy Thielen School of Piano appeals the circuit court’s dismissal of its appeal from a decision of the South Dakota State Board of Equalization.

FACTS

Nancy Thielen filed an application for tax exempt status for her school, the Nancy Thielen School of Piano (hereinafter “Thielen”). The Pennington County Director of Equalization recommended denial of the application to the Pennington County Board of Equalization.1 On May 14, 1990, the Board of County Commissioners for Pennington County, acting as the County Board of Equalization, voted to grant Thielen tax exempt status.

On approximately June 1, 1990, the Rapid City Area School District Board of Education appealed the decision of the Pennington County Board of Equalization to the State Board of Equalization (hereinafter “SBE”). On August 17, 1990, SBE voted to reverse the decision of the Pennington County Board of Equalization and to revoke the tax exempt status. A secretary to the chairman of SBE mailed copies of SBE’s decision by first class mail to all interested parties.

On September 14, 1990, Thielen appealed the decision of SBE by filing a notice of appeal with the circuit court for the Seventh Judicial Circuit. On December 19, 1990, SBE filed a motion to dismiss the circuit court appeal. SBE argued that *33Thielen’s notice of appeal was untimely and therefore the circuit court lacked jurisdiction. The circuit court accepted briefs on the issue and then granted the motion to dismiss the appeal for lack of subject matter jurisdiction. Thielen appeals.

DECISION

Thielen contends that the standards for initiating an appeal from a decision of the State Board of Equalization are governed by the provisions of the Administrative Procedures Act (“APA”). The APA provides, at SDCL 1-26-31, that notices of appeal to the circuit court from decisions of an administrative agency must be filed within thirty days of the notice of entry of the final decision of the agency. SBE argues that SDCL chapter 10-11 establishes the appeal procedures for this case.

This Court previously addressed this issue in Appeal of AT & T Information Systems, 405 N.W.2d 24 (S.D.1987). In that case, AT & T appealed the decision of the State Board of Equalization to the circuit court. There, the State Board of Equalization argued that the standards and procedures for initiation of the appeal should be governed by the APA. The State Board of Equalization based that argument on its contention that SDCL chapter 10-11 had been impliedly repealed by the adoption of the APA. This Court found that the “repeal by implication” argument was “flawed” because:

The APA was adopted in most respects between 1966 and 1975. Since that date some amendments have occurred and, as applied to this case, SDCL 1-26-30 was amended in 1978. However, SDCL 7-8-32 was reenacted in 1983. And, SDCL 10-11-43 was reenacted in 1985. It is inherent in the concept of repeal by implication that the statute which is doing the repealing be enacted subsequent to the statutes which are claimed to be repealed. Repeals by implication operate on statutes already existing, not statutes later enacted. Thus, the concept of repeal by implication is not applicable.

Id. at 27.

In accord with our prior holding in Appeal of AT & T Information Services, we again hold that the standards and procedures for the initiation of an appeal from a decision of the State Board of Equalization to a circuit court are governed by SDCL chapter 10-11. As a result, Thielen had only twenty days to file a notice of appeal.

However, as an alternative argument, Thielen contends her twenty-day period to file the notice of appeal has not yet begun to run because SBE’s decision was not “published.” We agree.

The legislature designated that appeals like this one should be taken in the same manner as an appeal from a county commission decision.2 To appeal from a decision of the county commissioners, one must file an appeal within twenty days after “publication” of that decision.3 Thus, Thielen’s appeal time does not start to run until SBE “publishes” its decision. The term “publish”, as it relates to counties, is defined as “publication in the official county newspapers.” SDCL 7-18A-1. Because SBE never published its decision, Thielen’s appeal time has not yet begun to run.

SBE notes that Thielen clearly had notice because of the notice letter. SBE argues *34that letter started Thielen’s appeal time running. If that argument were accepted it would destroy the bright-line established by the legislature for deciding when the appeal time begins to run for all parties in a case. It would result in an administrative nightmare where every party had their own deadline to file notices of appeal. This would be clearly contrary to legislative intent.

*33Time allowed for appeal — Service of notice — Transcript of proceedings. Such appeal shall be taken within twenty days after the publication of the decision of the board by serving a written notice on one of the members of the board ...

*34SUMMARY

SDCL 10-11-43 details the procedure for filing an appeal with the circuit court from a decision of the State Board of Equalization. Such appeals are to be handled like appeals from decisions of the county commissioners. The time to file an appeal from the decision of the county commissioners begins to run from the “publication of the decision of the board.” In this case, SBE did not “publish” its decision as that term is defined in SDCL 7-18A-1. Until the decision is published the appeal time does not begin to run. Thus, Thielen’s notice of appeal was timely and the circuit court had jurisdiction. We remand this case for a decision on the merits.

SABERS and AMUNDSON, JJ., concur. HENDERSON, J., concurs with writing. MILLER, C.J., concurs in result.

. By statute, "[t]he county commissioners, or a majority of them, shall constitute a board for the equalization of the assessment of property." SDCL 10-11-25.

. SDCL 10-11-43 states:

Appeal from state board of equalization to circuit court.
Any person, firm, corporation, taxing district, governmental subdivision or agency interested as described in § 10-11-42 may appeal from a decision of the state board of equalization to the circuit court for the county in which the property which is subject of the action is situated. The appeal shall be taken in the same form and manner as appeals are taken from the decision of the board of county commissioners to such court, except that the state board of equalization shall become the appellee and shall defend its decision on appeal. (emphasis added)

. SDCL 7-8-29 explains how appeals are taken from a decision of a board of county commissioners. It provides, in pertinent part: