ZINTER, Justice
#28538-a-SLZ APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA THE HONORABLE PATRICIA J. DEVANEY Judge ZACHARY W. PETERSON
JACK H. HIEB
Richardson, Wyly, Wise,
Sauck & Hieb, LLP
Aberdeen, South Dakota Attorneys for appellant. MARTY J. JACKLEY
Attorney General PAUL E. BACHAND
EDWARD S. HRUSKA, III
Special Assistant Attorneys General
Pierre, South Dakota Attorneys for appellee. ZINTER, Justice [¶1.] The South Dakota Department of Labor and Regulation, Division of Banking (Division) issued a cease and desist and license revocation order directing the immediate revocation of the money lender licenses of Dollar Loan Center of South Dakota, LLC. While a hearing before the Office of Hearing Examiners was pending on the matter, Dollar Loan appealed the Division's order to circuit court. The circuit court dismissed the appeal, concluding there was no statutory right to appeal the order and Dollar Loan had failed to exhaust available administrative remedies. We affirm.
This opinion was decided prior to Justice Zinter's death.
Facts and Procedural History
[¶2.] In 2017, South Dakota voters approved an initiated measure (Initiated Measure 21) making it illegal for money lenders licensed under SDCL chapter 54-4 to issue loans that impose finance charges exceeding 36% "including all charges for any ancillary product or service and any other charge or fee incident to the extension of credit." SDCL 54-4-44. The loans covered by the new law included short-term payday loans, which are defined in SDCL 54-4-36(15). [¶3.] After the new law went into effect, Dollar Loan informed the Division it intended to start using a new loan product that would not exceed the 36% rate. Dollar Loan provided the Division a copy of the new loan contract. The contract disclosed that the new loans would be unsecured and would require full payment of principal and interest upon maturity. The loans would also require late fees if the full payment was not received upon the due date, and the failure to pay the full loan not its money lending license should be revoked and the terms and conditions in the [order] should be enforced." [¶10.] On October 5, Dollar Loan requested a continuance of the scheduled administrative hearing. It indicated it needed more time to prepare. An administrative law judge granted the request and set a new hearing for April 12, 2018. [¶11.] Although the administrative hearing was pending, on October 12, Dollar Loan appealed the Division's order to circuit court. It claimed the order was immediately appealable because it was either a "final agency action" or was an "intermediate agency action or ruling" and review of the final agency decision would not provide an adequate remedy. See SDCL 1-26-30. The Division disagreed and moved to dismiss. It asserted that its order was not of the type described in SDCL 1-26-30 and that the dispute was not reviewable until the administrative proceedings concluded. [¶12.] The court concluded it had no jurisdiction to consider the appeal under SDCL 1-26-30 because the Division's order was neither a final decision nor an intermediate ruling from which adequate appellate relief could not be obtained. The court also concluded Dollar Loan had failed to exhaust available administrative remedies and that it did not qualify for any exception to the exhaustion requirement. Accordingly, the court dismissed the appeal. [¶13.] Dollar Loan appeals the dismissal, and we restate its issues as follows:
1. Whether the Division's order was a final agency decision that was appealable within the meaning of
SDCL 1-26-30.
2. Whether the Division's order was an intermediate agency decision that was immediately reviewable under
SDCL 1-26-30. We also address the Division's appellate assertion that this Court lacks jurisdiction to entertain Dollar Loan's appeal of the circuit court's order of dismissal.
The limited stay provided in part that Dollar Loan "may service any loans originated . . . prior to November 16, 2016 so long as the servicing of those loans does not violate SDCL Chapter 54-4[.]"
Decision
Supreme Court Appellate Jurisdiction
[¶14.] An appeal to this Court may not be taken from a circuit court order "unless it is authorized under SDCL 15-26A-3." Smith v. Tobin, 311 N.W.2d 209, 210 (S.D. 1981); accord Action Carrier, Inc. v. United Nat'l Ins. Co., 2005 S.D. 57, ¶ 24, 697 N.W.2d 387, 393. When a party attempts an "appeal from an order from which no appeal lies[,]" this Court only has jurisdiction to dismiss the appeal. Smith, 311 N.W.2d at 210. Dollar Loan cites SDCL 15-26A-3(2) as its jurisdictional authority to appeal the circuit court's dismissal. Under that provision, an appeal to this Court may be taken from a circuit court "order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken[.]" SDCL 15-26A-3(2). [¶15.] The Division responds that its order is not the type described in SDCL 15-26A-3(2). More specifically, it contends: (1) Dollar Loan's money lender licenses are not "rights" because lending money is a privilege; (2) dismissal of the appeal did not "determine the action" because a determination has yet to occur at the administrative level; and (3) the proceedings to date would not "prevent a judgment from which an appeal might be taken" because Dollar Loan will have a right to appeal after the administrative proceedings conclude. See id. [¶16.] The Division's contentions incorrectly look to what is yet to occur at the administrative level versus what has occurred in the circuit court. Notwithstanding the right at issue or the nature of the action to be taken at the administrative level, the circuit court's dismissal here "in effect determine[d]" Dollar Loan's claimed right to appeal the Division's order to circuit court without participating in an administrative hearing. See id. Further, regardless of what is yet to occur at the administrative level, the dismissal of the appeal means there will be no succeeding judgment of the circuit court from which an appeal "might be taken" to determine whether Dollar Loan had the right to a pre-hearing appeal. See id. Finally, the circuit court's dismissal "affect[ed]" Dollar Loan's claimed statutory right to appeal. See id. We conclude this Court has jurisdiction to review the appeal from the circuit court's determination that Dollar Loan had no right to appeal before the pending administrative hearing concluded.
Orders are distinguishable from judgments. A judgment is a "final determination of the rights of the parties in an action or proceeding." SDCL 15-6-54(a). An order is "[e]very direction of a court or judge, made or entered in writing and not included in a judgment[.]" Id.
Circuit Court Appellate Jurisdiction
a) Final Decision in a Contested Case [¶17.] The circuit court's jurisdiction to entertain an administrative appeal is governed by SDCL 1-26-30. Under that statute, a party who is "aggrieved by a final decision in a contested case is entitled to judicial review[.]" Id. Dollar Loan points out that a contested case is defined to include "licensing." See SDCL 1-26-1(2). that was already underway. Finally, as pointed out above, it is necessary (not futile) to develop an evidentiary record in a formal contested case hearing. Without the development of a factual record that includes the Division's examinations, meaningful judicial review of the legality of Dollar Loan's lending practices and new loan product would not be possible.
Dollar Loan contends a record is not needed to determine the legality of the pre-hearing revocation portion of the order. But that contention fails to recognize that Dollar Loan also asserted a substantive claim in its appeal of the order. Dollar Loan argued it did not violate SDCL chapter 54-4 and that the order was clearly erroneous and an abuse of discretion in light of the entire record. We conclude an evidentiary record will be necessary to judicially review the substantive validity of the order.
b) Immediately Reviewable Intermediate Agency Decision [¶25.] Dollar Loan alternatively argues the order is immediately reviewable as an intermediate agency decision because "review of the final agency decision would not provide an adequate remedy." See SDCL 1-26-30. It contends that requiring it to go through an administrative hearing "hardly serves as an adequate remedy" because Afdahl, as the agency's director, would make the final agency decision and he has already revoked Dollar Loan's money lender licenses. [¶26.] The Division, however, argues the Secretary of the Department of Labor and Regulation, not the Division director, will review the independent hearing examiner's findings and conclusions and ultimately render the final agency decision. The Division acknowledges it is statutorily responsible for licensing, but it points out that under SDCL 51A-2-1, "[t]he Division of Banking . . . shall be administered under the direction and supervision of the Department of Labor and Regulation." Dollar Loan acknowledges the Secretary's administrative responsibility but points to a companion statute, SDCL 51A-2-2, which clarifies that the Division of Banking retains its "quasi-judicial" functions and that it "shall exercise those functions independently of the secretary [of the Department of Labor and Regulation]." [¶27.] We need not decide which official within the Department of Labor and Regulation will accept, reject, or modify the independent hearing examiner's decision following the administrative hearing. On this record, even if the Division of Banking makes the final decision, it cannot be considered unconstitutionally biased. The Division's order was based on its statutory duty to investigate lenders and take action on their licenses, and Dollar Loan makes no due process claim with respect to the Division's investigation. Moreover, although the Division initially failed to offer Dollar Loan a pre-revocation hearing, it quickly reversed course and initiated such a hearing before an independent hearing examiner. Finally, we believe the hearing examiner's and circuit court's respective reviews of the Division's order (based on the evidence developed at the independent hearing) will provide Dollar Loan an adequate remedy within the meaning of SDCL 1-26-30. The Division's order was not an intermediate agency ruling that was immediately reviewable. [¶28.] Affirmed. [¶29.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER, Justices, concur.
See SDCL 1-26D-6. --------