Holborn v. Deuel Cnty. Bd. of Adjustment

#28963, #28983-aff in pt & rev in pt-SRJ
2021 S.D. 6

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

GEORGE HOLBORN, RUBY HOLBORN,
VICKI HINDERS, STACEY HINDERS,
RICK KOLBECK, JENNIFER KOLBECK
and STEVEN OVERBY, Petitioners and Appellees,

JOHN HOMAN, TERESA HOMAN,
WILLIAM STONE, FAY STONE,
HEATH STONE and KATIE STONE, Petitioners,

v.

DEUEL COUNTY BOARD OF
ADJUSTMENT, Respondent,

and

DEUEL HARVEST WIND ENERGY LLC
and DEUEL HARVEST WIND ENERGY
SOUTH LLC, Respondents and Appellants.

****

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
DEUEL COUNTY, SOUTH DAKOTA

****

THE HONORABLE DAWN M. ELSHERE
Judge

****

CONSIDERED ON BRIEFS
NOVEMBER 4, 2019
OPINION FILED 02/10/21
REECE M. ALMOND of
Davenport, Evans, Hurwitz
& Smith, L.L.P.
Sioux Falls, South Dakota

CHRISTINA L. KILBY of
Kilby Law, PLLC
Burnsville, Minnesota Attorneys for petitioners and
appellees.

LEE SCHOENBECK
JOSEPH ERICKSON of
Schoenbeck Law, P.C.
Watertown, South Dakota

LISA M. AGRIMONTI
MOLLIE M. SMITH
HALEY WALLER PITTS of
Fredrikson & Byron, P.A.
Minneapolis, Minnesota Attorneys for respondents and
appellants.
#28963, #28983

JENSEN, Chief Justice

[¶1.] Deuel Harvest Wind Energy, LLC and Deuel Harvest Wind Energy

South, LLC (Deuel Harvest) applied for special exception permits (SEP) from the

Deuel County Board of Adjustment (Board) to develop two wind energy systems

(WES) in Deuel County. 1 Several residents of Deuel County and neighboring

counties (Appellees) objected. Following a public hearing, the Board unanimously

approved the permits. Appellees petitioned the circuit court for writ of certiorari

challenging the SEPs, including a claim that several members of the Board had

interests or biases which disqualified them from considering the SEPs. The circuit

court determined that two Board members had disqualifying interests and

invalidated their votes. The court then reversed the decision of the Board granting

the SEPs. Deuel Harvest appeals. 2

Facts and Procedural History

[¶2.] Deuel County enacted a zoning ordinance (Ordinance) in 2004. In

2016 and 2017, the Board modified the Ordinance to impose more stringent

requirements for obtaining a SEP to operate a WES. These requirements included

1. The Deuel County zoning ordinance sets forth many requirements for a SEP
to develop and operate a WES in Deuel County. Deuel Harvest Wind Energy,
LLC sought a SEP for a WES that included up to 150 wind turbines. Deuel
Harvest Wind Energy South, LLC sought a SEP to develop a WES that
included up to 100 wind turbines. Both LLCs were owned by Invenergy Wind
Development, LLC.

2. Appellees William Stone, Fay Stone, Heath Stone, Katie Stone, John Homan,
and Teresa Homan were dismissed with prejudice during the appeal to this
Court.

-1-
#28963, #28983

increasing the setback distances for wind turbines from non-participating

residences and businesses.

[¶3.] In 2015, Deuel Harvest began plans for developing the WESs in Deuel

County. Deuel Harvest conducted environmental surveys, community outreach,

and obtained lease and easement agreements (Agreements) from landowners in the

areas of the planned WES locations. Deuel Harvest originally leased more land

than needed for the WESs. Deuel Harvest later narrowed the locations for the

WESs and released some of the initial Agreements.

[¶4.] Deuel Harvest applied for the SEPs on December 22, 2017. The Board

held a public hearing regarding the SEPs on January 22, 2018. At the time of the

applications, the Board consisted of five members: Chairman Dennis Kanengieter,

Paul Brandt, Mike Dahl, Kevin DeBoer, and Steven Rhody. Prior to the hearing,

counsel for Appellees submitted a letter to the Board alleging that several of the

Board members had conflicts of interest. At the start of the hearing, each

individual Board member publicly stated that he had no financial interest in the

WESs and believed he could make a fair decision. The hearing lasted for

approximately three and one-half hours, as the Board heard testimony from twenty-

eight speakers, some supporting and some opposing the projects. Each speaker was

limited to three minutes.

[¶5.] During the hearing, discussion arose concerning South Dakota

Pheasant Hunts, LLC (South Dakota Pheasant Hunts)—a hunting preserve

-2-
#28963, #28983

operating on 480 acres of land in Deuel County. 3 Appellees claimed that the bare

land used for hunting constituted part of the business, and the approval of the SEPs

would place the WESs in closer proximity than permitted by Ordinance §

1215.03(2)(a). The Ordinance provides the distance from non-participating

businesses and residences shall not be less than four times the height of the wind

turbine. The Ordinance does not define “business,” but it provides that “[f]or

purposes of this section only, the term ‘business’ does not include agricultural uses.”

The Board determined that the term business was limited to the physical structures

used by South Dakota Pheasant Hunts, not the land used for hunting. By defining

the term business as a physical structure, the Board concluded that the WESs

would not violate the setback requirements of the Ordinance.

[¶6.] The Board voted unanimously (5 to 0) to approve Deuel Harvest’s

SEPs. Appellees appealed the issuance of the SEPs to the circuit court via a

petition for a writ of certiorari pursuant to SDCL 11-2-61. Appellees claimed four of

the five Board members improperly participated in the vote approving the SEPs

because of their disqualifying interests or biases. Appellees also challenged the

Board’s determination that the SEPs would not violate the Ordinance setback

requirements with respect to South Dakota Pheasant Hunts.

[¶7.] During the certiorari proceedings before the circuit court, Appellees

took the deposition of each Board member to develop their claims that Board

3. The Stone family owns South Dakota Pheasant Hunts. Although they were
dismissed from this appeal, no one has challenged the standing of the other
Appellees to argue that the Board failed to follow the Ordinance with respect
to the setback requirements.

-3-
#28963, #28983

members had disqualifying interests or biases. At the hearing, the circuit court

excluded the depositions, but nonetheless made findings of fact based upon some of

the evidence in the deposition transcripts. During the certiorari proceedings,

Appellees alleged disqualifying interests of four of the five Board members. 4

Mike Dahl

[¶8.] In January 2016, Deuel Harvest executed an Agreement with Dahl,

permitting Deuel Harvest to develop a WES on Dahl’s land in the future. Deuel

Harvest terminated the Agreement on November 17, 2016, after determining the

property was outside of the planned locations for the WES. Dahl received one

payment of $3,095 in August 2016, per the terms of the Agreement. He received no

payments after the Agreement was terminated and had no current or prospective

relationship with Deuel Harvest at the time of the hearing on the SEPs.

Kevin DeBoer

[¶9.] Prior to DeBoer’s appointment to the Board in February 2017, Deuel

Harvest executed two Agreements with DeBoer in July 2016 to potentially develop a

WES on DeBoer’s property. DeBoer had also attended two informational events

that were hosted by Deuel Harvest at local restaurants prior to his appointment.

The Agreements between DeBoer and Deuel Harvest were terminated in December

2017, at DeBoer’s request, because of his belief that the Agreements would conflict

with his Board duties in considering the impending SEP applications. Deuel

Harvest terminated the Agreements approximately one week before it submitted

4. For purposes of our review, we include all the pertinent facts set forth in the
deposition transcripts on the question of whether any of the Board members
had a disqualifying interest or bias in considering the SEPs.

-4-
#28963, #28983

the SEP applications to the Board. DeBoer received payments of $3,060 for the

Agreements in August 2016 and again in August 2017. DeBoer received no

payments after the Agreements were terminated and had no current or prospective

relationship with Deuel Harvest at the time of the hearing on the SEPs.

[¶10.] In his deposition, DeBoer testified that his two brothers also had

Agreements with Deuel Harvest for the development of the WESs. At the time of

the hearing before the Board, his brothers had a combined 827 acres that were

subject to the Agreements with Deuel Harvest. DeBoer testified that his only

discussion with his brothers regarding the Agreements was whether the WESs

would come to “fruition.” DeBoer had no knowledge of the financial arrangements

between his brothers and Deuel Harvest. He also had no knowledge if any wind

turbines would be placed on his brothers’ property in the future.

Chairman Dennis Kanengieter

[¶11.] At the time of the hearing, Kanengieter had been employed for twenty-

four years by two individuals who owned land subject to Agreements with Deuel

Harvest. Kanengieter also admitted in his deposition that he had advocated for

wind development in Deuel County and had signed a petition for referendum

challenging the 2016 decision of the Deuel County Commission to impose more

stringent requirements for WESs in Deuel County. He also signed a transmission

line agreement relating to his own land with a different wind developer, Flying Cow

Wind, LLC, prior to the Deuel Harvest hearing before the Board. That agreement

was unrelated to Deuel Harvest’s project.

-5-
#28963, #28983

Paul Brandt

[¶12.] Brandt testified that he had previously signed two lease agreements

for wind projects that were unrelated to the Deuel Harvest WESs. 5 He also

invested in an unrelated wind energy development company. At the time of the

hearing, Brandt was also an officer and 18% owner of a company called Supreme

Pork. A subsidiary of Supreme Pork, Supreme Welding, had previously performed

over $865,000 of work for a manufacturer of fiberglass wind turbine blades. There

is no evidence that the wind turbine manufacturer or Supreme Welding had a

business relationship with Deuel Harvest or otherwise expected to receive business

related to the projects. Supreme Pork also had a lease and an easement agreement

with another wind company that had placed a wind turbine on property owned by

Supreme Pork in Minnesota. That contract included a “No Interference” provision

that precluded Supreme Pork from impeding or interfering with wind power

facilities in the future. 6 Brandt signed the agreement as Chairman of the Board

and President of Supreme Pork.

5. Brandt signed an agreement with NextEra Energy Resources, LLC that was
terminated in 2011. In 2016, he signed another agreement with NextEra to
put a tower on eighty acres of land. A tower was not built on his property,
but at the time of the hearing, Brandt continued receiving annual payments
of $2,000 under this agreement.

6. The “No Interference” provision provided: “Landowner’s activities and any
grant of rights Landowner makes to any person or entity, whether located on
the Property or elsewhere, shall not, currently or in the future, impede or
interfere with: (i) the siting, permitting, construction, installation,
maintenance, operation, replacement, or removal of Windpower Facilities
whether located on the Property or elsewhere . . . .” Appellees argue this
provision created a conflict for Brandt in considering the SEPs. However, a
review of the agreement shows that this “No Interference” language relates
(continued . . .)
-6-
#28963, #28983

The Circuit Court Decision

[¶13.] Following a hearing, the court issued a written decision on January 25,

2019, invalidating the votes of DeBoer and Dahl due to disqualifying interests, but

affirming the Board’s approval of the SEPs on a vote of 3 to 0. Deuel Harvest filed a

motion for reconsideration with the circuit court, arguing that by disqualifying the

votes of DeBoer and Dahl, the court effectively denied the SEPs under SDCL 11-2-

59, a statute which required SEPs to be approved by a vote of two-thirds of the

entire Board. 7

[¶14.] In response to the motion for reconsideration, the circuit court filed an

addendum to its original written decision. The addendum reaffirmed the

disqualification of DeBoer and Dahl but overturned the Board’s approval of the

SEPs. On March 27, 2019, the circuit court issued its order and findings of fact and

conclusions of law invalidating the votes of DeBoer and Dahl and reversing the

Board’s issuance of the SEPs to Deuel Harvest.

[¶15.] We address the following issues on appeal:

1. Whether any members of the Board had a disqualifying
interest or bias under the Due Process Clause of the

________________________
(. . . continued)
solely to the wind project to be developed on Supreme Pork’s property and
other properties in Minnesota. The agreement defines “Windpower
Facilities” as the wind turbines and associated equipment to be constructed
as a part of that specific Minnesota wind energy project. There is nothing in
the agreement suggesting that the “No Interference” provision was intended
to apply to any other wind project.

7. The 2020 Legislature amended SDCL 11-2-59 to allow for the approval of a
SEP by majority vote of a board of adjustment. 2020 S.D. Laws ch. 41 (SB
157).

-7-
#28963, #28983

United States Constitution or under South Dakota
statutes.

2. Whether the Board failed to regularly pursue its
authority in defining the term “business” under the
Ordinance.

3. Whether the circuit court abused its discretion when it
excluded evidence related to Board members’
disqualifying interests.

Analysis & Decision

[¶16.] Judicial review of certiorari proceedings under SDCL 11-2-61 is

limited. Jensen v. Turner Cnty. Bd. Of Adjustment, 2007 S.D. 28, ¶ 4, 730 N.W.2d

411, 413. “Our consideration of a matter presented on certiorari is limited to

whether the board of adjustment had jurisdiction over the matter and whether it

pursued in a regular manner the authority conferred upon it.” Wedel v. Beadle

Cnty. Comm’n, 2016 S.D. 59, ¶ 11, 884 N.W.2d 755, 758. “A board’s actions will be

sustained unless it did some act forbidden by law or neglected to do some act

required by law.” Id. “The interpretation of an ordinance presents a question of

law which we review de novo.” Cole v. Bd. of Adjustment of City of Huron, 1999 S.D.

54, ¶ 4, 592 N.W.2d 175, 176.

[¶17.] We review a circuit court’s evidentiary rulings for an abuse of

discretion. State v. Scott, 2019 S.D. 25, ¶ 11, 927 N.W.2d 120, 125. “Not only must

this Court find that the [circuit] court abused its discretion, but it must find that

the [judge’s] consideration of the erroneously excluded evidence might and probably

would have resulted in a different finding by the jury in order to warrant a reversal

of the circuit court.” O’Day v. Nanton, 2017 S.D. 90, ¶ 17, 905 N.W.2d 568, 572.

-8-
#28963, #28983

1. Whether any members of the Board had a
disqualifying interest or bias under the Due Process
Clause of the United States Constitution or under
South Dakota statutes.

[¶18.] In reviewing the Appellees’ claim that four of the five Board members

had a disqualifying interest, the circuit court considered Armstrong v. Turner Cnty.

Bd. of Adjustment, 2009 S.D. 81, 772 N.W.2d 643 (determining that a member of a

county board of adjustment had a disqualifying interest under the Due Process

Clause of the United States Constitution). The circuit court also considered SDCL

6-1-17 8 and SDCL 6-1-21. 9 After considering Armstrong and the aforementioned

8. SDCL 6-1-17 provides:

No county, municipal, or school official may participate in discussing or
vote on any issue in which the official has a conflict of interest. Each
official shall decide if any potential conflict of interest requires such
official to be disqualified from participating in discussion or voting.
However, no such official may participate in discussing or vote on an
issue if the following circumstances apply:

(1) The official has a direct pecuniary interest in the matter before the
governing body; or

(2) At least two-thirds of the governing body votes that an official has
an identifiable conflict of interest that should prohibit such official
from voting on a specific matter.

If an official with a direct pecuniary interest participates in discussion
or votes on a matter before the governing body, the legal sole remedy is
to invalidate that official's vote.

9. SDCL 6-1-21 provides:

An elected or appointed municipal, county, or township officer
may receive input from the public, directly or indirectly, about
any matter of public interest. Such contact alone does not
require the officer to recuse himself or herself from serving as a
quasi-judicial officer in another capacity. An elected or
appointed officer is presumed to be objective and capable of
(continued . . .)
-9-
#28963, #28983

statutes, the circuit court applied the following standard for disqualification of the

challenged Board members: “whether there has been clear and convincing evidence

that a board member’s actions demonstrate prejudice or an unacceptable risk of

bias.” Under this standard, the circuit court concluded that “Board members

DeBoer and Dahl each held an unacceptable risk of bias in voting on this project

and should have disqualified themselves.” However, the court rejected Appellees’

claims that either Kanengieter or Brandt had a disqualifying interest preventing

them from considering the WESs.

[¶19.] Both parties challenge the circuit court’s decision. Deuel Harvest

claims that none of the Board members had a direct pecuniary interest in the WESs

at the time of the hearing, as required by SDCL 6-1-17, and the Board made no

collective determination that any member had an “identifiable” conflict of interest.

Thus, Deuel Harvest argues there was no basis to disqualify any Board member.

Appellees respond that the circuit court properly disqualified DeBoer and Dahl, but

the disqualification should have been made under due process standards rather

________________________
(. . . continued)
making decisions fairly on the basis of the officer’s
circumstances and may rely on the officer’s own general
experience and background. Only by a showing of clear and
convincing evidence that the officer’s authority, statements, or
actions regarding an issue or a party involved demonstrates
prejudice or unacceptable risk of bias may an officer be deemed
disqualified in a quasi-judicial proceeding.

-10-
#28963, #28983

than SDCL 6-1-17. Appellees also argue that Kanengieter and Brandt were subject

to disqualification under SDCL 6-1-21 and the Due Process Clause. 10

[¶20.] The parties’ arguments suggest a lack of clarity in our prior decisions

concerning the due process requirements for disqualification of public officials

involved in quasi-judicial decision-making. Additionally, our prior decisions have

not discussed the interplay between Constitutional due process standards and

SDCL 6-1-17 and SDCL 6-1-21, which are designed to ensure fairness in decisions

made by public officials. Given the challenges to four individual Board members in

this case, we take this opportunity to clarify the appropriate standards for

disqualification under both the Due Process Clause and the applicable South

Dakota statutes.

10. Appellees claim that the Board’s bias was also demonstrated in its handling
of the hearing on the SEP applications. They allege that the Board members
only allowed three minutes for members of the public to speak and failed to
read the 580 pages of public submissions it received one day prior to the
hearing. The circuit court considered these allegations and determined the
Board provided a fair hearing. It found the Board did not prohibit anyone
from speaking during the three and one-half hour hearing and gave everyone
the same time constraints to speak their opinion. It further found “the Board
consciously deliberated the applications” on the night of the hearing and the
Board’s decision “does not indicate bias.” We agree. There was nothing overt
in the Board’s handling of a contentious and lengthy hearing on the SEPs
that suggested the Board was biased against the Appellees. Further,
procedural due process “requires only reasonable notice and an opportunity to
be heard at a meaningful time and in a meaningful manner.” Schrank v.
Pennington Cnty. Bd. of Comm’rs, 1998 S.D. 108, ¶ 13, 584 N.W.2d 680, 682
(quoting S.B. Partnership v. Gogue, 1997 S.D. 41, ¶ 16, 562 N.W.2d 754, 758-
59). The Board’s handling of the hearing satisfied procedural due process
protections.

-11-
#28963, #28983

a. Disqualification under the Due Process Clause.

[¶21.] The Fifth Amendment of the United States Constitution provides that

“[n]o person shall . . . be deprived of life, liberty, or property, without due process of

law[.]” U.S. Const. amend. V. In Armstrong, we held that “a local zoning board’s

decision to grant or deny a conditional use permit is quasi-judicial and subject to

due process constraints. As such, the constitutional right to due process includes

fair and impartial consideration by a local governing board.” Armstrong, 2009 S.D.

81, ¶ 19, 772 N.W.2d at 650-51. Relying on Hanig v. City of Winner, 2005 S.D. 10, ¶

11, 692 N.W.2d 202, 206, and decisions prior to Hanig, the Court set forth the

following due process standard for determining whether an official should be

disqualified in a quasi-judicial proceeding:

Decision makers are presumed to be objective and capable of
judging controversies fairly on the basis of their own
circumstances. However, where actual bias or an unacceptable
risk of actual bias or prejudgment exists, the decision maker
must be disqualified from participating.

Armstrong, 2009 S.D. 81, ¶ 23, 772 N.W.2d at 651.

[¶22.] Deuel Harvest claims that this test from Hanig and Armstrong is

inconsistent with SDCL 6-1-17, which limits grounds for disqualification to a “direct

pecuniary interest” by a public official. Deuel Harvest argues that the Legislature

enacted SDCL 6-1-17 in direct response to Hanig and legislatively abrogated its

holding. While it is the Legislature’s prerogative to establish public policy within

this State for determining the statutory basis for disqualification of public officials,

this Court defines the limits of Constitutional due process protections afforded to

individuals in quasi-judicial proceedings, apart from any statutory grounds for

disqualification. “[I]t is the duty of this court, not the legislature, to make
-12-
#28963, #28983

determinations of constitutional terms.” S.D. Auto. Club v. Volk, 305 N.W.2d 693,

700 (S.D. 1981). See also State v. Rolfe, 2013 S.D. 2, ¶ 13, 825 N.W.2d 901, 905

(“Constitutional interpretation is a question of law” reviewed by the courts.).

Further, “the Legislature must comply with constitutional requisites in passing

legislation.” In re Rounds, 2003 S.D. 30, ¶ 8, 659 N.W.2d 374, 377. Therefore, we

consider the limits of due process on questions of fairness in quasi-judicial

proceedings.

[¶23.] In Caperton v. A.T. Massey Coal Co., Inc., the United States Supreme

Court re-examined the standard for disqualification of judicial officers for interest

or bias under the Due Process Clause. 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d

1208 (2009). 11 Caperton reviewed a decision from the Supreme Court of Appeals of

West Virginia, which reversed a $50 million judgment in favor of the plaintiff

against A.T. Massey Coal Co. (Massey), on a 3 to 2 vote. Between the time of the

verdict and its initial consideration on appeal, West Virginia held public elections

for a justice position on the West Virginia Supreme Court. Knowing that the West

Virginia Supreme Court would hear the case on appeal, Massey’s chairman and

chief executive officer (CEO) supported a lawyer, Brent Benjamin, for the position.

During the election, Massey’s CEO contributed more than $3 million dollars,

directly and indirectly, to support Benjamin. These contributions accounted for

more than three times the other money spent by Benjamin’s campaign and exceeded

11. Caperton was decided on June 8, 2009, after Armstrong was argued and
submitted to this Court. The Armstrong decision was issued on August 26,
2009.

-13-
#28963, #28983

the total money spent by both the other candidates by more than $1 million.

Benjamin narrowly won the election.

[¶24.] After the election, Plaintiff moved to disqualify Justice Benjamin at

several points during the appeal. Benjamin denied each motion and refused to

recuse himself. Benjamin explained that there was “no objective information to

show that [he] has a bias for or against any litigant, that [he] has prejudged the

matters which comprise the litigation, or that [he] will be anything but fair and

impartial.” Id. at 874. In his opinion, concurring with the majority opinion,

Benjamin wrote that he had no “direct, personal, substantial, pecuniary interest in

this case.” Id. at 876.

[¶25.] In considering the challenge to Benjamin sitting on the case, the

United States Supreme Court initially reviewed its prior due process decisions,

recognizing that “[a] fair trial in a fair tribunal is a basic requirement of due

process,” but “most matters relating to judicial disqualification do not rise to a

constitutional level.” Id. at 868. Caperton reaffirmed its prior decision that

“matters of kinship, personal bias, state policy, remoteness of interest, would seem

generally to be matters merely of legislative discretion,” but “a judge must recuse

himself when he has a direct, personal, substantial, pecuniary interest in a case.”

Id. at 876 (quoting Tumey v. State of Ohio, 273 U.S. 510, 523, 47 S. Ct. 437, 441, 71

L. Ed. 749 (1927)). Under this standard, the Court’s prior decisions had only

required disqualification of a judicial officer in two instances under the Due Process

Clause. The first involved cases where a judicial officer had a financial interest in

the case. Id. at 868 (citing Tumey, 273 U.S. at 510, 47 S. Ct. at 437). The second

-14-
#28963, #28983

involved certain contempt proceedings arising from a defendant’s previous

interaction with the judge. Id. (citing Mayberry v. Pennsylvania, 400 U.S. 455, 466,

91 S. Ct. 499, 27 L. Ed. 2d 532 (1971)). Caperton expanded on these prior decisions,

recognizing that due process may require disqualification in rare instances, even in

the absence of a showing of a direct pecuniary interest. The Court concluded that

while Benjamin did not have a direct financial interest in the case, the

extraordinary contributions made to support Benjamin’s campaign violated due

process because the “significant and disproportionate influence—coupled with the

temporal relationship between the election and the pending case—offers a possible

temptation to the average judge to lead him not to hold the balance nice, clear and

true.” Id. at 886. “On these extreme facts the probability of actual bias rises to an

unconstitutional level.” Id. at 886-87.

[¶26.] Caperton did not question Benjamin’s subjective claims of impartiality

or the absence of bias. Id. at 868. Instead, the Court found that the total amount of

money Massey’s CEO contributed to Benjamin’s campaign had a “significant and

disproportionate influence on the electoral outcome. And the risk that [the CEO’s]

influence engendered actual bias is sufficiently substantial that it must be

forbidden if the guarantee of due process is to be adequately implemented.” Id. The

Court concluded that the serious objective risk of actual bias required Benjamin’s

recusal. Id. at 886.

[¶27.] While Caperton expanded the reach of the Due Process Clause for

fairness in judicial proceedings, the Court reaffirmed that the standard for

disqualification of a judicial officer is extremely high and should only be applied in

-15-
#28963, #28983

“extraordinary situation[s] where the Constitution requires recusal.” Id. at 887.

Caperton noted that in each of its prior decisions requiring the recusal of a judicial

officer under the Due Process Clause, “the Court dealt with extreme facts that

created an unconstitutional probability of bias that cannot be defined with

precision.” Id. In applying this standard, the Court cautioned that “most disputes

over disqualification will be resolved without resort to the Constitution. Application

of the constitutional standard implicated in this case will thus be confined to rare

instances.” Id. at 890.

[¶28.] We believe that the due process standard described in Caperton applies

to judicial officers as well as those who are making quasi-judicial administrative

decisions. We conclude that the circumstances here do not rise to the constitutional

level envisioned in Caperton. There is no evidence that any Board member stood to

financially benefit, directly or indirectly, from the approval of the SEPs. Further,

the prior payments made by Deuel Harvest to DeBoer and Dahl under the cancelled

Agreements do not objectively give rise to the concerns addressed in Caperton. The

prior payments to DeBoer and Dahl were not extraordinary in amount and were

calculated using the same per-acre payment terms that Deuel Harvest applied in its

agreements with the landowners of other properties where Deuel Harvest planned

to develop the WESs. Further, there is no evidence that Deuel Harvest entered into

the Agreements with DeBoer and Dahl or made the payments in an effort to curry

favor with them.

[¶29.] Similarly, the involvement of Kanengieter and Brandt in other wind

projects and Kanengieter’s prior support of wind energy do not create due process

-16-
#28963, #28983

concerns under the standard enunciated in Caperton. Appellees argue that

Brandt’s business interests in Supreme Pork required his disqualification.

Appellees presented evidence that Supreme Pork’s subsidiary had performed past

work for a manufacturer that provided wind turbines on other projects. However,

Appellees failed to present any evidence that the subsidiary would perform work for

the wind turbine manufacturer in the future, or that the manufacturer had an

agreement with, or expected any business from, Deuel Harvest.

[¶30.] Importantly, Caperton explained that “[t]he Due Process Clause

demarks only the outer boundaries of judicial disqualifications. Congress and the

states, of course, remain free to impose more rigorous standards for judicial

disqualification than those we find mandated here today.” Id. at 889-90 (quoting

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828, 106 S. Ct. 1580, 1589, 89 L. Ed. 2d

823 (1986)). See also Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L.

Ed. 2d 97 (1997) (“distinguishing the ‘constitutional floor’ from the ceiling set by

common law, statute, or the professional standards of the bench and bar”); Marko v.

Marko, 2012 S.D. 54, ¶ 19, 816 N.W.2d 820, 826 (discussing due process under

Caperton, but applying the South Dakota Code of Judicial Conduct to determine

whether judicial disqualification was required). Apart from the Due Process Clause,

the Legislature has adopted SDCL 6-1-17 and SDCL 6-1-21 to address potential

conflicts and biases in decisions made by public officials. Therefore, an analysis of

these statutes is needed to consider whether disqualification of any Board members

was required.

-17-
#28963, #28983

b. Disqualification under State statutes.

[¶31.] SDCL 6-1-17 governs conflicts of interest by officials in a county,

municipal, or school setting. The statute directs that no such official may

participate or vote on any issue in which the official has a conflict of interest, but

vests the official with discretion to make a subjective determination whether he or

she has “any potential conflict of interest requir[ing] such official to be

disqualified . . . .” The statute specifically requires disqualification in the following

two instances: (1) “[t]he official has a direct pecuniary interest in the matter before

the governing body;” or (2) if “[a]t least two-thirds of the governing body votes that

an official has an identifiable conflict of interest” prohibiting the official from voting

on a matter. SDCL 6-1-17. Absent these two mandatory grounds for

disqualification, SDCL 6-1-17 leaves the decision of whether an elected or appointed

public official can be fair and unbiased to the conscience and anticipated good

judgment of each official in carrying out his or her duties.

[¶32.] SDCL 6-1-17 does not define the phrase “direct pecuniary interest.” In

Hanig, this Court looked to statutes and cases in other jurisdictions to determine

whether a city council member had an indirect financial interest in a city council

decision on a liquor license application. 2005 S.D. 10, ¶ 19, 692 N.W.2d at 209. In

this context, we noted authorities suggesting that a direct pecuniary interest

requires a showing that the property of the official will be benefitted, or that he or

she will receive direct financial gain from a decision on the matter before the board.

Id. There is no evidence that DeBoer or Dahl stood to gain financially from their

votes on the SEPs. Moreover, Appellees do not argue that any of the Board

-18-
#28963, #28983

members held a “direct pecuniary interest” under SDCL 6-1-17. Absent such a

direct pecuniary interest, the plain language of SDCL 6-1-17 leaves the

disqualification decision exclusively to the official’s judgment, or the collective vote

of at least two-thirds of the governing body when any other potential conflict is

disclosed or identified.

[¶33.] The record demonstrates that the Board knew of the prior Agreements

that DeBoer and Dahl had with Deuel Harvest, but it did not take any action to

disqualify DeBoer or Dahl under SDCL 6-1-17(2). Prior to the hearing before the

Board, the attorney for two of the Appellees sent a letter to the entire Board

requesting that DeBoer, Dahl, Kanengieter, and Brandt recuse themselves because

of their various agreements with wind energy companies. Additionally, memoranda

of the Agreements that DeBoer and Dahl had with Deuel Harvest were filed as a

matter of public record in 2016, as were the later releases of those Agreements.

Further, as a part of the application for the SEPs, the Board received a list of all the

landowners who held Agreements with Deuel Harvest, and also received a copy of

each memorandum of Agreement approximately three weeks prior to the Board

hearing. DeBoer’s brothers were listed among landowners holding Agreements with

Deuel Harvest.

[¶34.] Finally, in the circuit court proceedings, both DeBoer and Dahl

testified that they had informed the other Board members of their Agreements with

Deuel Harvest. DeBoer stated that he was told when he came onto the Board in

2017 that he would be required to recuse himself if he had an Agreement with

-19-
#28963, #28983

Deuel Harvest, and this prompted him to seek release from the Agreements before

the Deuel Harvest SEPs came before the Board.

[¶35.] As a part of a board’s authority to remove members with an

“identifiable conflict of interest” under SDCL 6-1-17, the Legislature could have

required officials to disclose potential conflicts to the board, established standards

for disclosure of possible conflicts, or required a board to disqualify a member for

other possible conflicts of interests, but it did not do so. It is not this Court’s role to

fill in the statutory gaps we think the Legislature left out. See Martinmaas v.

Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d. 600, 611 (holding “[t]he intent of a

statute is determined from what the legislature said, rather than what the courts

think it should have said”).

[¶36.] Simply put, the standard in SDCL 6-1-17 does not support

disqualification of any of the Board members in this instance. At the start of the

hearing, each Board member stated his subjective belief that he could act fairly in

the consideration of the SEPs, and there was no determination by the Board that

any individual Board member had a conflict of interest. Further, as discussed

above, there was no showing that any member of the Board had a direct pecuniary

interest in the Deuel Harvest SEP applications.

[¶37.] We next consider whether disqualification was required by SDCL 6-1-

21. SDCL 6-1-21 was enacted by the Legislature ten years after SDCL 6-1-17 and is

applicable to municipal, county, or township officers. The statute also limits its

application to quasi-judicial proceedings, such as the hearing on the SEPs. See

Armstrong, 2009 S.D. 81, ¶ 19, 772 N.W.2d at 650-51.

-20-
#28963, #28983

[¶38.] SDCL 6-1-21 allows such officers to communicate with and receive

information from the public “about any matter of public interest.” The language

does not limit the number or content of such communications. The statute also

creates a rebuttable presumption that public officials are able to be objective and

act fairly. This statutory presumption that an official is qualified may only be

rebutted by “clear and convincing evidence that the officer’s authority, statements,

or actions regarding an issue or a party involved demonstrates prejudice or

unacceptable risk of bias . . . .” SDCL 6-1-21.

[¶39.] Applying SDCL 6-1-21, Appellees’ challenges present three categories

of claimed bias by the individual Board members: (1) direct pecuniary interests; (2)

other activities and business interests involving other wind energy projects; and (3)

the interests of family members and employers.

[¶40.] As discussed above, there is no evidence that, at the time of the

hearing and vote, any Board member stood to benefit financially from the approval

of the SEPs. While Brandt’s business interests in Supreme Pork raise some

possibility that he might benefit financially from the Deuel Harvest projects, the

presumption of fairness under SDCL 6-1-21 cannot be rebutted by the mere

possibility that Supreme Welding may indirectly receive business in the future

because of the Deuel County projects.

[¶41.] Next, we consider evidence of the Board members’ support for wind

energy and financial interests in other wind projects. SDCL 6-1-21 cannot be read

to prohibit public officials involved in quasi-judicial proceedings from speaking on,

or even advocating generally for or against matters of public interest in their

-21-
#28963, #28983

communities. However, concerns under SDCL 6-1-21 may exist when an official

publicly voices support or opposition on an issue expected to come before the official.

In those instances, the standard for disqualification in SDCL 6-1-21 requires that

the statements or actions of the official objectively demonstrate an unacceptable

risk that the official is unable to fairly consider and decide the particular issue.

[¶42.] Here, Kanengieter’s prior advocacy for wind energy in Deuel County,

and his prior opposition to more stringent ordinance requirements for WESs, are

insufficient to rebut the presumption of objectivity under SDCL 6-1-21. Further,

the prior contractual relationships that DeBoer and Dahl had with Deuel Harvest

were “arms-length” in nature. The record shows that DeBoer and Dahl had

minimal communication with Deuel Harvest, and the prior relationships between

the parties neither ingratiated nor created any ill-will on DeBoer’s and Dahl’s part

towards Deuel Harvest. The standard under SDCL 6-1-21 is not whether there is

some possible risk of bias. Rather, the statute requires “clear and convincing

evidence” of actual prejudice or an “unacceptable risk of bias.” (Emphasis added).

There is insufficient evidence to satisfy the clear and convincing standard that

Kanengieter, or other Board members, made any statements, comments, or engaged

in other actions suggesting that they could not fairly apply Deuel County’s duly

enacted Ordinances when considering SEP applications. In the absence of such a

showing, SDCL 6-1-21 does not provide a basis for disqualification.

[¶43.] Similarly, SDCL 6-1-21 cannot be read to, per se, require

disqualification when a public official has a financial interest or investment in

another similar project or business that is not financially impacted by the matter

-22-
#28963, #28983

under consideration. Here, several of the Board members had investments in wind

energy or agreements with other existing or potential wind projects in Deuel County

or elsewhere. There is no question that several Board members supported wind

energy development in Deuel County and have financially benefitted from such

development. However, Appellees failed to present clear and convincing evidence

that any of these other interests would be enhanced or detrimentally impacted by

the approval of the SEPs or otherwise “demonstrate prejudice or unacceptable risk

of bias” in the Board’s consideration of Deuel Harvest’s SEP applications.

[¶44.] Finally, we consider whether SDCL 6-1-21 requires the disqualification

of DeBoer and Kanengieter because of family and employer relationships. The

grounds for disqualification under SDCL 6-1-21 are premised on “the officer’s

authority, statements, or actions regarding an issue or party involved . . . .”

(Emphasis added). In other words, the potential for disqualification under SDCL 6-

1-21 concerns the activities of the officer, not the relationships the officer may have

with others. The plain language of the statute does not address disqualification

when a non-household family member or employer may potentially benefit or be

adversely impacted by the outcome of the matter before the officer. “When the

language in a statute is clear, certain, and unambiguous, there is no reason for

construction, and the Court’s only function is to declare the meaning of the statute

as clearly expressed.” Farm Bureau Life Ins. Co. v. Dolly, 2018 S.D. 28, ¶ 9, 910

N.W.2d 196, 200. The relationships a public officer has with others may create

concerns about his or her ability to be fair and unbiased, but it is for the

Legislature, not this Court, to decide whether such relationships provide a ground

-23-
#28963, #28983

for disqualification under the statute. See Rhines v. South Dakota Dep’t of

Corrections, 2019 S.D. 59, ¶ 13, 935 N.W.2d 541, 545 (“The intent of a statute is

determined from what the legislature said, rather than what the courts think it

should have said, and the court must confine itself to the language used.”).

[¶45.] While family or other relationships do not alone form a basis for

disqualification under the statute, an officer’s communications and activities arising

from such relationships may provide a basis for disqualification when there is clear

and convincing evidence that such communications and activities demonstrate an

unacceptable risk of bias or prejudice under the statute. Here, DeBoer testified that

he had general conversations with his brothers about whether the Deuel Harvest

project would come to “fruition,” but never discussed their arrangements with Deuel

Harvest, or whether any wind turbines would be placed on their properties. There

is also no evidence that Kanengieter had any communication with his employers

about the Deuel Harvest WESs. Finally, it was unknown whether the approval of

the SEPs would provide in any future benefit to DeBoer’s brothers or Kanengieter’s

employer. Therefore, Appellees have failed to show a basis for disqualification

under SDCL 6-1-21 arising from the family and employment relationships of

DeBoer and Kanengieter.

[¶46.] Our consideration of due process standards, as well as SDCL 6-1-17

and SDCL 6-1-21, leads us to conclude that the circuit court erred in disqualifying

DeBoer and Dahl from voting on the SEPs. Applying these same standards, we

conclude the circuit court correctly held that Appellees failed to establish

Kanengieter and Brandt should have been disqualified.

-24-
#28963, #28983

2. Whether the Board failed to regularly pursue its
authority in defining the term “business” under the
Ordinance.

[¶47.] “A writ of certiorari is an equitable remedy available when an inferior

court exceeds its jurisdiction.” Duffy v. Circuit Court, Seventh Judicial Circuit,

2004 S.D. 19, ¶ 3, 676 N.W.2d 126, 128. “The scope of review ‘cannot be extended

further than to determine whether the inferior court . . . has regularly pursued the

authority of such court.’” Id. (quoting SDCL 21-31-8).

[¶48.] Appellees argue that the Board did not regularly pursue its authority

because it misapplied the term “business” under Section 1215.03(2)(A) of the

Ordinance in determining the setback requirements for wind turbines from non-

participating businesses. See Lamar Advert. of S.D., Inc. v. Zoning Bd. of

Adjustment of City of Rapid City, 2012 S.D. 76, ¶ 13, 822 N.W.2d 861, 864 (holding

a board of adjustment must interpret an ordinance consistently with its plain

language). Section 1215.03(2)(A) of the Ordinance provides that a wind turbine’s

“distance from existing non-participating residences and business shall be not less

than four times the height of the wind turbine.” In the absence of a definition in the

Ordinance, the Board interpreted this requirement to mean a physical structure.

Appellees claim that this definition failed to consider the 480-acres of land upon

which South Dakota Pheasant Hunts operates and host hunters. 12

12. Appellees cite Merriam-Webster.com which lists its first three definitions of
“business” as “a usually commercial or mercantile activity engaged in as a
means of livelihood; a commercial or sometimes an industrial enterprise; and
dealings or transactions especially of an economic nature.” However, the
breadth of meaning of “business” is evident from dictionary.com, which
(continued . . .)
-25-
#28963, #28983

[¶49.] The circuit court found that the Board’s interpretation of the term

“business” was not erroneous. The court also concluded that the Board’s

interpretation was not inconsistent with the purpose of the Ordinance: to avoid the

placement of wind turbines in close proximity to non-participating businesses and

residences. We agree. There is no language in the Ordinance suggesting that the

setback requirements were aimed at rural locations where individuals do not

regularly live or work. Rather, the Ordinance’s exclusion of “agricultural uses” from

of the definition of a business suggests the opposite. The Board’s decision to exclude

unimproved land from the definition of a “business” was not erroneous because this

interpretation is consistent with the provisions of the Ordinance and the purposes

of the setback requirements.

3. Whether the circuit court abused its discretion when
it excluded evidence related to Board members’
disqualifying interests.

[¶50.] The Appellees made a motion for the circuit court to consider

additional evidence in the certiorari proceedings. The circuit court denied the

motion in part and granted it in part. Appellees primarily take issue with the

court’s decision to exclude the depositions of the five Board members, arguing the

deposition transcripts were necessary for the court to consider the alleged biases of

the various Board members.

[¶51.] Appellees argue that the court did not consider all the evidence of bias

set forth in the depositions, such as: the relationship of DeBoer’s brothers with

________________________
(. . . continued)
includes thirteen different definitions, including “a building or site where
commercial work is carried on, as a factory, store, or office; place of work.”

-26-
#28963, #28983

Deuel Harvest; Kanengieter’s existing wind agreements with other wind developers

and prior advocacy for wind development in Deuel County; and Brandt’s

agreements with other wind developers and ownership interest in a company that

has previously done substantial business with a wind turbine manufacturer.

[¶52.] SDCL 11-2-64 permits the circuit court to receive evidence in a writ of

certiorari proceeding when the court determines it to be necessary to resolve the

issues before it. Although some of the evidence contained in the depositions was

properly excluded because it had no bearing on the issues before the circuit court,

portions of the depositions were relevant to the claims of bias. To the extent that

the circuit court excluded evidence that was relevant to the primary question before

the court on certiorari review, the court abused its discretion. Nonetheless, we

must still find that the excluded evidence “probably would have resulted in a

different finding by the [judge] in order to warrant a reversal of the circuit court.”

O’Day, 2017 S.D. 90, ¶ 17, 905 N.W.2d at 572. See also SDCL 15-6-61 (“The court at

every stage of the proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.”).

[¶53.] We have reviewed the deposition transcripts and considered all the

relevant facts supporting Appellees’ claims of conflicts of interest or bias. Our

review of the record and the circuit court’s findings does not provide a basis for

concluding there was a disqualifying interest or bias by any of the Board members.

Therefore, the court’s evidentiary ruling does not warrant reversal.

-27-
#28963, #28983

Conclusion

[¶54.] We affirm in part and reverse in part. We affirm the circuit court’s

determination that Kanengieter and Brandt did not have a disqualifying interest

under the Due Process Clause or applicable South Dakota statutes. We also affirm

the circuit court’s determination that the Board regularly pursued its authority

when it defined the term “business” in the Ordinance. However, the circuit court

erred by invalidating the votes of DeBoer and Dahl. We reverse the court’s decision

overturning the Board’s unanimous vote approving the SEPs and reinstate the

Board’s decision granting the SEPs.

[¶55.] KERN, SALTER, and DEVANEY, Justices, and GILBERTSON,

Retired Chief Justice, concur.

[¶56.] MYREN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.

-28-