Johnson v. State, Department of Transportation, Division of Highways

PORTER, Justice. This case arises out of a labor grievance filed on January 30, 1976 by respondent, Richard Johnson, against his employer, the appellant here. The grievance concerned whether or not the employee should have been paid a five percent increase in salary upon his lateral transfer from his job in Aberdeen to the same job in Milbank. Employee appealed to the Personnel Policy Board, and after an April 22, 1976, hearing, the Board on June 11, 1976, entered a decision in favor of employee. From this decision, employer on June 11,1976, appealed to the circuit court. The circuit court dismissed the appeal, holding that employer had failed to exhaust its administrative remedies under the provisions of SDCL 3-6A-38 in effect June 11, 1976, and that the circuit court was therefore without jurisdiction of the appeal. On this appeal by employer from the circuit court order of dismissal, appellant employer presents as its sole assignment of error the question: “Did the circuit court err in dismissing the administrative appeal of the State of South Dakota to the circuit [720] court for failure of the State ... to exhaust its administrative remedies.” Appellant describes the issue in its brief filed in this court as “identical to that raised in the case of John R. Walker v. State of South Dakota, Department of Transportation, Division of Highways, case # 12058, presently pending before this Court. The State’s position herein is largely the same as its Respondent’s Brief in the above action.” Both appellant and respondent waived oral argument in this court. Since the filing of the appeal in this case, this court has in Walker v. State, Dept. of Transp., etc., S.D., 259 N.W.2d 303 (1977), resolved against the State the sole issue presented on this appeal. Both the instant case, and Walker, supra, involved the construction of SDCL 3-6A-38 as it existed prior to an amendment which became effective July 1, 1976. See 1976 S.D.Sess.Laws, ch. 33, § 4. In the case at bar, appellant has briefed and presented the issue on the basis that this case is ruled by SDCL 3-6A-38 as it existed on June 11, 1976, when the circuit court appeal was taken. Since the issue before this court in Walker was identical to the issue presented by appellant in this case, we affirm the order of dismissal of the circuit court for the reasons set forth in Walker, supra. Affirmed. All the Justices concur.