author: ZINTER, Justice. GILBERTSON, Chief Justice

text:
    2005 SD 11
    STATE of South Dakota, Plaintiff and Appellee, v. William E. WALDNER, Defendant and Appellant.
    No. 23261.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 15, 2004.
    Decided Jan. 19, 2005.

      Lawrence E. Long, Attorney General, Jeffery J. Tronvold, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Roger W. Ellyson, Watertown, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] William Waldner appeals his sentences, contending that the State violated the terms of his plea agreement. Because the prosecutor breached a material term of the plea agreement, we vacate the sentences and remand for resentencing before a different judge.

FACTS

[¶ 2.] On February 20, 2004, Waldner pleaded guilty to a series of charges stemming from burglaries he committed in Clark, Codington, Hamlin and Kingsbury Counties. As part of that transaction, Waldner entered into a written plea agreement with the Clark County State’s Attorney in which Waldner agreed to plead guilty to one count of first degree burglary and three counts of third degree burglary. That agreement was filed on February 23, 2004.

[¶ 3.] In exchange for the guilty pleas, the State agreed to dismiss all other Clark County charges and to not file a habitual offender information. Additionally, the plea agreement specifically provided that:

D. The State further agrees to recommend to the Court that any sentence received by the Defendant in Clark County run concurrently with the sentences he will receive on charges pending in Codington County, Hamlin County and Kings-bury County.
E. The parties acknowledge that there is no agreement as to sentencing and both the Defendant and State of South Dakota are free to offer any recommendation at the time of sentencing;, however, the State agrees not to request that the sentences run consecutively.

[¶4.] On April 7, 2004, Waldner was sentenced for the Clark, Codington and Hamlin County charges by the Honorable Robert L. Timm." At the sentencing hearing, the Clark County State’s Attorney addressed the court and argued the “atrocious” nature of these crimes, stating;

I consider him to be a danger to the public,. I don’t think his conduct deserves a life sentence which is one of the reasons why I was more than happy not to file an habitual offender information in this matter. There may be some hope for rehabilitation for this gentleman, your Honor, I’m not sure given his background and his track record that that is possible, but maybe it is, I don’t know, but I do think that Mr. Waldner’s conduct merits a significant penitentiary sentence and the State of South Dakota would respectfully request that that be the case.

The Clark County State’s Attorney did not recommend concurrent sentences during the sentencing hearing as required by the plea agreement. However, defense counsel mentioned:

The agreement that we entered into with the Clark County State’s [sic] Attorney involved [him] recommending that the sentences in Clark County run concurrently with the sentences that are imposed in the other three counties, recognizing that that’s not at all binding on the Court, but we do appreciate .that recommendation. There’s no agreement regarding sentencing with Hamlin County or Codington County or Kingsbury County, so I think it’s important that the Court realize that.

In pronouncing sentence, the court did not acknowledge the plea agreement recommending' concurrent sentences or specifically reject the terms of the agreement. Rather, the trial court indicated “I’ve read through this presentence report.”

[¶ 5.] The presentence investigation report did not include the terms of the plea agreement, and the plea agreement was not attached to the report. Concerning the plea agreement, that report only indicated;

A plea bargain agreement was entered into in this matter whereby upon the defendant entering pleas of guilty to charges of First Degree Burglary and three counts of Third Degree Burglary in Clark County, Grant Theft and Burglary Fourth Degree in Codington County, Third Degree Burglary in Hamlin County and Third Degree Burglary in Kingsbury County, that all other charges would be dismissed and no Habitual Offender Information would be filed.

Thus, it did not disclose the State’s agreement to recommend concurrent sentences. In fact, the only mention of concurrent sentences is found under the “Defendant’s Comments” section of the report, which only indicated that Waldner would “prefer” concurrent sentences.

[¶ 6.] On the Clark County charges, Waldner received a fifteen year prison sentence for first degree burglary and three, five year prison sentences for the third degree burglaries. Waldner received five year prison sentences on each of the Hamlin and Codington County offenses. All of the sentences were to run consecutive to each other for a total of forty years.

[¶ 7.] Waldner appeals contending that the Clark County State’s Attorney violated the terms of the plea agreement by failing to recommend concurrent sentences. Waldner requests that his sentences be vacated and this matter be remanded for resentencing before a different judge.

ANALYSIS

[¶ 8.] “Generally, plea agreements are contractual in nature and are governed by ordinary contract principles.” State v. Stevenson, 2002 SD 120, ¶ 9, 652 N.W.2d 735, 738. “When the government fails to fulfill a material term of a plea agreement, the defendant may seek specific performance or may seek to withdraw his plea.” State v. Bracht, 1997 SD 136, ¶ 6, 573 N.W.2d 176, 178. Waldner contends the State violated the terms of his plea agreement by not recommending that he receive concurrent sentences. The State concedes that it did not recommend concurrent sentences at the sentencing hearing.

[¶ 9.] In Bracht, this Court adopted several statements of the United States Supreme Court on this subject. Id. ¶ ¶ 7, 11 (citing Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 499-500, 30 L.Ed.2d 427 (1971)).

When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor’s recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration.
The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by the petitioner, i.e., the opportunity to withdraw his plea of guilty. We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.

Id. (emphasis added). Based on Santobel-lo, we remanded the sentence in Bracht for resentencing before a different judge because the State failed to fulfill its promise in the plea agreement. Id. ¶ 13.

[¶ 10.] Here, the terms of the plea agreement created an affirmative obligation for the State’s Attorney to recommend to the trial court that the sentences for the Clark County offenses run concurrently with the offenses in Codington, Hamlin and Kingsbury Counties. The agreement also created a prohibition against recommending consecutive sentences. We reiterate that “[o]nce a plea has been entered and it ‘rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such a promise must be fulfilled.’ ” United States v. McCray, 849 F.2d 304, 305 (8th Cir.l988)(quoting Santobello, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 427). The State’s Attorney did not fulfill that obligation.

[¶ 11.] Moreover, this failure to recommend concurrent sentences was a material and substantial breach of the agreement. This negotiated term certainly cannot be characterized as being without “any significance” to Waldner. See Bracht, 1997 SD 136, ¶ 7, 573 N.W.2d at 179; State v. Deilke, 274 Wis.2d 595, 682 N.W.2d 945, 951 (2004) (stating: “A material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the non-breaching party.”). A failure to recommend concurrent sentences is a material and substantial breach because:

Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning the length of time to be served on each count. However, whether sentences are to be concurrent or consecutive is also extremely important. The designation of concurrent or consecutive time can affect the actual amount of time served, the application of a pre-sentence credit, parole eligibility dates, the date a defendant is allowed access to rehabilitative services, and other factors. A recommendation of concurrent sentences can also send a signal to the trial court that the agreement contemplates a lesser sentence than one where consecutive sentences are recommended.

State v. Howard, 246 Wis.2d 475, 630 N.W.2d 244, 250-51 (App.2001)(internal citation omitted).

[¶ 12.] Even if this Court were to speculate that such a recommendation had no effect on the sentence pronounced because defense counsel mentioned the agreement, such speculation is of no legal significance. Bracht, 1997 SD 136, ¶ 7, 573 N.W.2d at 179. It is of no significance because, the inquiry is hot whether or not the trial court was affected by the breach of the agreement, but whether the State’s Attorney met his or her obligation. See Howard, 630 N.W.2d at 250 (holding “it is irrelevant whether the trial court was influenced by the State’s alleged breach or chose to ignore the State’s recommendation.”). By pleading guilty a defendant waives very important rights: “He offers that waiver not in exchange for the actual sentence or.impact on the judge, but for the prosecutor’s statements in court. If they are not adequate the waiver is ineffective.” United States v. Clark, 55 F.3d 9, 14 (1st Cir.1995).

[¶ 13.] “This phase of criminal justice, and the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.” Santobello, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 427. “[0]nce the defendant has given up his ‘bargaining chip’ by pleading guilty, due process requires that the defendant’s expectations be fulfilled.” Howard, 630 N.W.2d at 250. This is because the “agreement by the State to recommend a particular sentence may induce an accused to give up the constitutional right to a jury trial. Consequently, once an accused agrees to plead guilty in reliance upon a prosecutor’s promise to perform a future act, the accused’s due process rights demand fulfillment of the bargain.” State v. Williams, 249 Wis.2d 492, 637 N.W.2d 733, 744 (2002). “A prosecutor who does not present the negotiated sentencing recommendation to the circuit court breaches the plea agreement.” Id. “That the breach of the agreement may have been inadvertent does not lessen its impact; the defendant is still entitled to a remedy for the breach.” Howard, 630 N.W.2d at 251.

[¶ 14.] In fashioning that remedy we acknowledge that this case does not involve an allegation of intentional breach nor is there evidence that the breach affected the trial court. Nevertheless, the required remedy is a remand for resen-tencing before a new judge. As stated in Bracht:

[W]e hasten to add the same qualification used by the Supreme Court and the Eighth Circuit in similar dispositions: ‘We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.’ In order to restore him to the position he would have been in before the State’s breach, [defendant] must be sentenced by another judge. The new judge might well give the same sentence, but only after the State complies with its promise.

Bracht, 1997 SD 136, ¶ 13, 573 N.W.2d at 181.

[¶ 15.] Accordingly, we vacate the Clark County sentences and remand for resentencing before a different judge.

[¶ 16.] SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 17.] GILBERTSON, Chief Justice, concurs in part and dissents in part.

GILBERTSON, Chief Justice

(concurring in part and dissenting in part).

[¶ 18.] I agree with the Court that the prosecutor failed to fully comply with the terms of the plea agreement and for that reason the sentence must be vacated and returned to the trial court for resentenc-ing. However, I dissent from that portion of the Court’s opinion that directs upon remand, resentencing is to be taken away from Judge Timm and is to it be held in front of another judge of the Third Judicial Circuit.

[¶ 19.] Herein Waldner finds no fault with the conduct of the judge at the original sentencing. The sole basis of his complaint is the conduct of the prosecutor. This Court is in agreement for it declares, “although this does not involve a question of trial court error ...” and further that “we emphasize that our inquiry is not whether or not the trial court was affected by the breach of the agreement, but whether the State’s Attorney met his obligation.”

[¶20.] The sole basis for the court’s action is its continuing misinterpretation of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) as set forth in State v. Bracht, 1997 SD 136, 573 N.W.2d 176. Santobello states in part:

The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner!].]

404 U.S. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (emphasis added).

[¶ 21.] “The language quoted above from Santobello ‘mandates nothing. ’ Bracht, 1997 SD 136, ¶ 20, 573 N.W.2d at 182 (Miller, C.J., dissenting) (citing United States v. Wolff, 127 F.3d 84, 87 (D.C.Cir.1997)). See also United States v. Travis, 735 F.2d 1129, 1132 (9th Cir.1984); United States v. Arnett, 628 F.2d 1162 (9th Cir.1979); United States v. Bowler, 585 F.2d 851, 856 (7th Cir.1978).

Since the inception of this Court, it has from time to time reversed a trial court for errors committed against a criminal defendant which were found to be prejudicial. Yet one must look long and hard to find a case where the remand was designated to be to another judge rather than the original trial court which committed the error. We have assumed that the trial court will correct its original error and not retaliate against the defendant who obtained the reversal from this Court. What then is the justification for continuing on with this procedure and yet automatically ordering a remand to another judge where the error was made by the prosecutor, not the trial court, and not even considered by the trial court?
The cases cited above hold that the defendant must show “unusual circumstances” or some other valid reason in order to require remand for resentenc-ing by a different judge. [U.S. v.] Sharp, 941 F.2d [811] at 817 [9th Cir.1991]; [U.S. v.] Heubel, 864 F.2d [1104] at 1113 [3d Cir.1989]. Bracht makes no claim of bias or reliance on impermissible factors by the trial court and the majority explicitly finds there is none. Therefore Bracht has failed to demonstrate any circumstances which require a different judge to conduct his resen-tencing.

Bracht, 1997 SD 136, ¶¶ 37-38, 573 N.W.2d at 185 (Gilbertson, J. dissenting).

[¶ 22.] The same rationale applies here. For the above reasons, I concur in part and dissent in part.

      . More specifically, Waldner received a five year sentence for Grand Theft in Codington County and a concurrent two year sentence for Fourth Degree Burglary in Codington County.

      . This forty year sentence is contrasted with the fifteen year sentence Waldner would have received if the trial court had ordered concurrent sentences. This is noteworthy only for the purpose of assessing the significance of this term of the plea agreement. We make no determination concerning an appropriate sentence in this case.

      . Since 1997 it has been the settled law in the State of South Dakota that the remedy for the breach of a plea agreement is resentencing before a different judge. Bracht, 1997 SD 136, ¶ 12, 573 N.W.2d at 180 (citing Santobello, 404 U.S. at 263, 92 S.Ct. at 500, 30 L.Ed.2d at 427; United States v. Brody, 808 F.2d 944, 948 (2nd Cir. 1986); McCray, 849 F.2d at 305; Brunelle v. United States, 864 F.2d 64, 65 (8th Cir. 1988)).
      This Court's decision in Bracht was a split decision with two dissents arguing that Santobello did not necessitate a remand to a different judge for resentencing. Bracht, 1997 SD 136, ¶¶ 18-39, 573 N.W.2d at 181-86 (Miller, C.J., dissenting)(Gilbertson, L, dissenting). However, the cases decided after Bracht confirm the view expressed by the Bracht majority that sentencing should be conducted by a new judge. See United States v. DeWitt, 366 F.3d 667, 672 (8th Cir.2004) (stating "our precedent dictates that we vacate the judgment and remand to the district court for resentencing before a different judge”); United States v. Rivera, 357 F.3d 290, 297 (3rd Cir.2004) (holding "the defendant must be resentenced by a different judge than the one who presided over the now-vacated original sentence”); United States v. Mata-Vasquez, 111 Fed.Appx. 986, 2004 WL 2307343 (10th Cir. 2004) (unpublished opinion); United States v. Carter, 57 Fed.Appx. 211, 2003 WL 147728 (5th Cir.2003)(unpublished opinion) (directing resentencing before a different judge because "[w]e are not at liberty to part from Santobello”); United States v. Franco-Lopez, 312 F.3d 984, 994 n. 7 (9th Cir.2002) (recognizing "the case law uniformly requires sentencing by a different judge”); United States v. Fitch, 282 F.3d 364, 368 (6th Cir.2002) (holding "we are required to remand for resentencing before a different judge”); United States v. Robbins, 40 Fed.Appx. 787, 2002 WL 1583905 (4th Cir.2002)(unpublished opinion); United States v. Mondragon, 228 F.3d 978, 981 (9th Cir.2000); United States v. Padilla, 186 F.3d 136, 143 (2nd Cir.1999)(directing re-sentencing before a different judge because "reassignment is advisable to preserve the appearance of justice”); Echeverria v. State, 119 Nev. 41, 62 P.3d 743, 745 (2003)(reject-ing "State's argument that reassignment to a different judge is appropriate only in unusual cases”); State v. Howland, 264 Wis.2d 279, 663 N.W.2d 340, 350 (App.2003); People v. Hoeltzel, 290 A.D.2d 587, 588, 735 N.Y.S.2d 259 (3rd Div.2002)(holding defendant is entitled to resentencing before a different judge); State v. Birge, 2001 WL 968393 (Neb.App.2001) (unpublished opinion); State v. Lake, 107 Wash.App. 227, 27 P.3d 232, 236 (2001); Myers v. State, 770 So.2d 542, 550 (Miss.App.2000)(stating "the requirement that a different trial judge be involved on remand should be taken as an objective determination about appearances, one that is commanded by Santobello’’); State v. King, 576 N.W.2d 369, 371 (Iowa 1998).


source: Caselaw Access Project

author: LOVRIEN, Circuit Judge.

license: Public Domain

text:
    2005 SD 9
    Douglas and Cindy LOEN, Plaintiffs and Appellants. v. Roberta J. ANDERSON, Defendant and Appellee.
    No. 23109.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 23, 2004.
    Decided Jan. 19, 2005.

      David J. King and Grant G. Alvine of Alvine & King, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
    Mark J. Welter of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   LOVRIEN, Circuit Judge.

[¶ 1.] Douglas and Cindy Loen (Loens) appeal a judgment entered in their favor following a jury trial. They claim 1) the trial court did not properly instruct the jury, 2) that the jury failed to award prejudgment interest, and 3) that the trial court abused its discretion when it denied their motion for a new trial. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] Loens commenced a personal injury action against Roberta Anderson (Anderson) arising out of a motor vehicle accident that occurred on October 4, 1998. Anderson struck Loens’ vehicle after she failed to stop at an intersection. The resulting collision caused serious physical injury to Douglas. Cindy was not injured. Anderson admitted liability for the accident and the issue of damages was the sole issue tried to the jury.

[¶ 3.] The jury returned an award in favor of Loens in the amount of $20,000. The trial court entered judgment in favor of Loens for this amount. The jury did not award pre-judgment interest and the trial court did not include pre-judgment interest in its judgment.

[¶ 4.] On August 20, 2003, Loens moved for a new trial pursuant to SDCL 15-6-59(a). The trial court denied the motion for a new trial after reviewing the entire record, trial transcript, briefs submitted by both parties and considering the arguments made by counsel. Loens filed their notice of appeal on January 15, 2004. While Loens raised three issues on appeal, we need only address two:

Whether the trial court abused its discretion in denying Loens’ motion for a new trial. ■
Whether error was committed when the jury did not award pre-judgment interest.

STANDARD OF REVIEW

[¶ 5.] Whether a new trial should be granted is left to the discretion of the trial court. This Court will not disturb the trial court’s decision absent a clear showing of an abuse of discretion. Dartt v. Berghorst, 484 N.W.2d 891, 894 (S.D.1992). We give great deference to a trial court’s findings of fact, but we review questions of law de novo, with no deference given to a trial court’s legal conclusions. City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771. Under the abuse of discretion standard, it is not just error that must be demonstrated, but it must be shown to be prejudicial error. State ex rel Dep’t of Transp. v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263. Prejudicial error is error which in all probability had an effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning the error. Harter v. Plains Ins. Co., Inc., 1998 SD 59, ¶ 32, 579 N.W.2d 625, 633. “An appellate court should interfere only when from an examination of the entire record, it is convinced that prejudicial error has resulted in a miscarriage of justice.” Schoon v. Looby, 2003 SD 123, ¶ 18, 670 N.W.2d 885, 891.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 6.] Whether the trial court abused its discretion in denying the Loens’ motion for a new trial.

[¶ 7.] Loens’ motion for a new trial was based on a claim of repeated and intentional violations of the trial court’s orders in limine and other evidentiary rulings during the course of the trial by Anderson’s attorney, Mark J. Welter (Welter). In its findings of fact and conclusions of law the trial court specifically found that while Welter had intentionally violated the court’s orders, those violations were not so prejudicial as to deny Loens a fair trial. On appeal, Loens argue that given Welter’s conduct at trial it was an abuse of discretion for the trial court to deny their motion for a new trial. We agree.

[¶ 8.] Motions in limine are heard in advance of trial and seek a court order requiring the parties not to discuss or disclose certain facts that the court deems to be prejudicial. Motions in limine have long been favored by this Court. The purpose of these motions is to prevent prejudicial information from reaching the ears of the jury. See Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). This is based on the recognition that when prejudicial matters are brought before the jury no amount of objection or instruction can entirely remove the harmful effect. Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 426 (S.D.1994). “Once the question is asked, the harm is done.” Id.

[¶ 9.] Both before and during trial, Loens made various motions in limine seeking specific evidentiary rulings from the trial judge as to what was to be admissible during trial. Based on these motions, the trial court ruled that there was to be no discussion of prior or subsequent injuries, pre-existing medical conditions or the speed of the vehicles at the time of the accident.

[¶ 10.] The court specifically granted Loens’ motion precluding Welter from bringing any information regarding any of their prior or subsequent health conditions or injuries before the jury. The order was specific in its prohibitions and was further clarified for Welter by the trial court before opening statements.

[¶ 11.] Despite the specificity of the order, Welter repeatedly violated its terms. Beginning with his opening statement, Welter referenced Douglas’ possible preexisting rotator cuff tendonitis. Loens, outside the presence of the jury, moved for a mistrial. That motion was denied. Welter thereafter continued to violate the trial court’s order.

[¶ 12.] Welter asked Douglas “how long have you been a diabetic?” Loens were forced to object and the trial judge sustained the objection. In the next immediate question, Welter asked “did you go to St. Mary’s Healthcare Center for a stress test?” Loens were again forced to object in front of the jury. The trial judge admonished the jury and sent them out. He then admonished Welter, once again, that the prior health conditions were not related to the auto accident. This did not stop Welter. In his very next question he asked, “On the day of the accident were you taking any prescription medication?” A bench conference ensued. This discussion was followed by yet another violation when Welter asked, “[w]ere there any side effects you were aware of in taking the blood pressure pill?” Welter then again violated the order by inquiring into Douglas’ prior and subsequent chiropractic use. Finally, he violated the ruling on the motion in limine concerning Cindy when he asked about a subsequent injury that she possibly sustained.

[¶ 13.] As previously mentioned, prior to trial Anderson admitted liability for the accident. In light of this admission, the trial judge ruled that the speed of the vehicles was not relevant to the issue of damages during the course of the trial. Welter repeatedly chose to violate this ruling as well. He questioned Douglas about the speed of the vehicles at the time of the accident. The court reminded him that this line of questioning was not relevant. This also did not deter Welter. He called Anderson to the stand and asked her, “do you know how fast you were going at the time?” He followed this with a reference to the accident report. At this time, Loens objected and the court admonished the jury on the issue as follows:

Ladies and Gentlemen of the Jury, there’s been testimony in this case of the speed of the vehicle being anywhere from 10-30 miles per hour. That is not an issue in this case. It has no bearing on the issue of damages, the extent of damages, or what went on, so you are to disregard any testimony concerning it.

[¶ 14.] It was only after this admonishment that Welter moved to admit the accident report outside the presence of the jury. The trial court again admonished him for his actions, and stated that neither the accident report nor the speed of the vehicles were relevant to the issue of damages. Yet, this clear and direct explanation of the court’s ruling was not enough to prevent Welter from violating it again. During closing argument, he stated that the jury would see in the medical records several references to the speed being 30 miles per hour, yet his client testified that she was going 20 miles per hour. That line of argument was objected to and sustained. The court was forced to remind Welter of his ruling. Seemingly unphased, Welter again violated the ruling. This resulted in another admonition to the jury to disregard any comments about the speed of the vehicles.

[¶ 15.] As we noted earlier, this Court will not interfere with a trial court’s denial of a motion for a new trial unless we are convinced that prejudicial error has occurred. “Whether or not error is prejudicial generally depends on the circumstances of the particular case.” Schoon, 2003 SD 123, ¶ 18, 670 N.W.2d at 891 (quoting Binegar v. Day, 80 S.D. 141, 151, 120 N.W.2d 521, 527 (1963)). One isolated event may not rise to the level of prejudice; its effect on the case being so subtle as to go undetected by a jury. However, a repeated course of conduct may rise to the level of prejudice.

[¶ 16.] In previous decisions, this Court has held that the intentional introduction of prejudicial evidence through a violation of a motion in limine can serve as the basis for a new trial. First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 6, 686 N.W.2d 430, 436; State v. Wright, 1999 SD 50, ¶ 28, 593 N.W.2d 792, 804; City of Sioux Falls v. Johnson, 1999 SD 16, ¶ 28, 588 N.W.2d 904, 910; Harter, 1998 SD 59, ¶ 31, 579 N.W.2d at 633; Robbins v. Buntrock, 1996 SD 84, ¶6, 550 N.W.2d 422, 425; Kjerstad, 517 N.W.2d at 426-27 (citing Northern Trust Bank v. Carl, 200 Ill. App.3d 773, 146 Ill.Dec. 488, 558 N.E.2d 451, 456 (1990)). While these earlier decisions often dealt with an inadvertent and limited violation of a court’s orders, in Kjerstad, we faced a claim of numerous violations of four motions in limine. Kjerstad, 517 N.W.2d at 426. To resolve the issues in Kjerstad, this Court adopted a standard used in a series of Illinois cases: For such a violation to serve as the basis of a new trial the order granting the motion must be specific in its prohibitions, the violation(s) of the order must be clear, and the violation(s) must prejudice the party asserting error. Id. (citing Northern Trust Bank, 146 Ill.Dec. 488, 558 N.E.2d at 456).

[¶ 17.] Applying that standard to the facts in Kjerstad, we determined that the trial court’s orders were specific, the violations of the orders were clear and there was prejudice. Id. at 426-27. Therefore, we reversed and remanded for a new trial. Id. at 428. The facts before us now present an even more aggravated situation. The record reveals at least ten violations of the trial court’s orders, a half dozen admonishments from the bench, and a myriad of objections from Loens.

[¶ 18.] Loens sought to protect themselves from the introduction of prejudicial information through a properly entered motion in limine. The trial court’s resulting order in limine and other rulings were sufficiently clear and specific to put Welter on notice of those issues he was not to present to the jury. Nevertheless, Welter clearly violated these court orders numerous times. Therefore, the only question remaining is whether Welter’s conduct was prejudicial to the Loens.

[¶ 19.] There are several factors that can be considered in determining whether the presentation of information in violation of such an order has prejudiced a party. These include whether the prejudicial information was intentionally solicited in violation of the order or was instead inadvertent; whether the violation repeatedly occurred; whether the information solicited was of an- inflammatory nature; whether the violation was curable through instruction from the trial court; whether the information was likely to confuse the jury; and, whether the information was likely to have an improper effect on the jury’s verdict. See Honaker v. Mahon, 210 W.Va. 53, 552 S.E.2d 788, 795 (W.Va.2001).

[¶ 20.] From the record before us, it is clear Welter repeatedly violated the trial court’s orders and rulings. The trial court found these violations were intentional. This finding is supported by the evidence. Because Welter’s conduct was intentional, his conduct can not be said to have occurred as a result of the' heat of battle or during the passion of argument. These were clearly not inadvertent mistakes. Rather, Welter’s actions demonstrated a deliberate and repeated attempt to solicit evidence before the jury that the trial court excluded. If Welter had wanted the trial court to reconsider its prior rulings and admit certain evidence he was free to make that request outside the presence of the jury. Instead, he chose to violate the court’s order and rulings.

[¶ 21.] There is no magic number of violations that will result in a finding of prejudice. However, after our review of the complete trial record, it is apparent that Welter’s misconduct permeated the entire proceeding, from opening statement to final argument. His conduct was calculated to have an improper and prejudicial effect on the jury’s verdict. His repeated misconduct could not reasonably be cured through instruction by the trial court. As a result, we conclude that Welter’s misconduct prejudiced Loens and denied them a fair trial. The trial court should have granted Loens’ motion for a new trial and abused its discretion by failing do so. Therefore, the judgment of the trial court is vacated and the matter is remanded for a new trial.

ISSUE TWO

[¶ 22.] Whether error was committed when the jury did not award pre-judgment interest.

[¶ 23.] Under the instructions of the trial court, the jury returned a verdict awarding no pre-judgment interest. The trial court also did not include pre-judgment interest when it entered its judgment. Loens argue on appeal that it was error to enter judgment without an award of pre-judgment interest. While in her brief Anderson admitted that Loens were entitled to pre-judgment interest on the original judgment calculated from the date of the accident, there appears to be some confusion as to how this issue should be handled at trial. We will address this issue to clarify the procedure to be used at retrial.

[¶ 24.] In the State of South Dakota:

Any person who is entitled to recover damages ... is entitled to recover interest thereon from the day that the loss or damage occurred.... If there is a question of fact as to when the loss or damage occurred, pre-judgment interest shall commence on the date specified in the verdict or decision.... If necessary, special interrogatories shall be submitted to the jury. Pre-judgment interest on damages arising from a contract shall be at the contract rate, if so provided in the contract; otherwise, if pre-judgment interest is awarded, it shall be the Category B rate specified in § 54-3-16. The court shall compute and award the interest provided in this section and shall include such interest in the judgment in the same manner as it taxes costs, (emphasis added).

SDCL 21-1-13.1.

[¶ 25.] An award of pre-judgment interest is mandatory. Alvine v. Mercedes-Benz of North America, 2001 SD 3, ¶ 29, 620 N.W.2d 608, 614. When instructing the jury as to pre-judgment interest they must be told that the interest is mandatory when damages are recoverable and not within their discretion. Id. The instructing court shall request that the jury determine the amount of loss and the date such loss occurred. Id. Additionally, pursuant to SDCL 15-6-49(b), special interrogatories should be used to help the court determine the amount of damages that the jury has awarded for economic loss. If such interrogatories are used, the jury must be instructed in such a way that enables them to answer not only the general verdict form, but also the special interrogatory. It is the jury’s duty to determine and identify the amount of economic loss, if any, and the date the loss occurred. It is then the court’s duty, based on the jury’s determination, to compute the amount of pre-judgment interest to be awarded and to include that amount in its judgment.

CONCLUSION

[¶ 26.] The trial court entered various orders in limine before and during the trial of the case. The trial court’s orders were specific in their prohibitions. Welter’s violations of those orders were clear and intentional. Loens were prejudiced by Welter’s misconduct and were denied a fair trial. Consequently, they are entitled to a new trial with a proper instruction to the jury concerning pre-judgment interest.

[¶ 27.] Reversed and remanded.

[¶ 28.] LOVRIEN, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 29.] GORS, Circuit Judge, for ZINTER, Justice, disqualified.

[¶ 30.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, and GORS, Circuit Judge, concur.

      . Loens also appealed the failure of the trial court to give a requested instruction. Because the issues raised in the requested instruction were adequately addressed by the trial court's instructions and given our decision on Issue One, we need not further address this issue.

      . Anderson does not challenge these rulings on appeal.

      . Loens' motion in limine asked that Welter be restrained from mentioning ''[a]ny evidence, arguments, reference, testimony or other, concerning any other injury, [or] prior or subsequent automobile accident(s). Any alleged pre-existing or subsequent condition, injury, auto accident or illness of the Plaintiff which contributes to his current condition is not admissible unless and until the Defendant produces competent medical evidence to support a causal connection between such alleged condition or injury and the injuries or impairment being discussed in this case.”
      In granting the motion in limine, the following exchange took place:
      Judge Erickson: Motion Granted. It doesn't seem to me to be relevant. You have an obligation to come in with an expert to tell us with reasonable medical certainty that this is reasonably the same, otherwise you are not going there. That's granted.
      Welter: I wanted to make sure, are we allowed to share with the jury any information that is contained in the medical records that the parties have stipulated into evidence?
      Judge Erickson: [The medical records] may show he had flu shots when he was 12 ... it's in there, but it doesn't mean anything to this case. It has to be relevant. Unless you can show some relevance an objection to relevancy will be sustained. What I am telling you right now based upon what I have reviewed, you haven't met your burden to even present it to the juiy.

      . Welter indicated: "Dr. Van Demark’s diagnosis at that time was, his opinion was, he had a resolving left rotator cuff tendonitis, and also noted some arthritis in the AC joint that is not related to the motor vehicle accident, but preexisted.”

      . Welter questioned from the accident report in regards to the speed of the vehicles at the time of the accident. Loens objected, at a bench conference the court persuaded Welter to change his line of questioning. Later, while questioning Douglas, Welter asked "[tjhere you indicated to him that you were struck at 30 miles an hour; right?” Judge Erickson, on the record, stated that the speed of the vehicles was not relevant. "I told you that was not relevant. Move along.”

      .Judge Erickson: "[F]irst of all, the time to raise this was every time we took a break instead of consistently trying to introduce this evidence. Now you have admitted liability and admitted you caused the accident and to an extent caused the injury. You haven’t brought in any expert to say at the time that at 10 miles an hour this wouldn't have happened or at 30 miles this would have happened, have you? ... [The exhibit] is not material to anything in this case.... When I tell you those things at side bar, if you want to raise them and make a further record, every time we took a break I asked if there was something that we needed to put on the record, nobody did. That’s the time to do it instead of keeping ramming it in front of the jury because every time my ruling was the same. It’s not material to anything.”

      . It is useful to remember that in a practical sense, almost all evidence introduced at trial is prejudicial to one side or the other. It is evidence that is improperly prejudicial, in light of the rules of evidence, that we seek to keep from the jury. In granting a motion in limine, the trial court makes a determination that the evidence in question is improperly prejudicial. Its introduction would in some way improperly influence the jury and diminish the chance for a fair trial. The fundamental question, then, is how much exposure by the jury to this improperly prejudicial evidence can occur before a trial judge or appellant court must conclude that for there to be a fair trial there must be a new trial.

      . Based on the record before us, it appears Welter's conduct can not be explained as anything other than a calculation by him that the intentional and repeated violation of the trial court’s orders in limine would help his case by improperly prejudicing Loens before the jury. It appears Welter calculated that the benefit to his case, and the corresponding prejudice to Loens, was substantial enough to even justify putting his own license to practice law at risk. If the prejudice was substantial enough to be worth this risk at trial, then the prejudice to Loens must have been substantial indeed. On appeal, Welter will not be heard to claim otherwise.


author: MEIERHENRY, Justice.

text:
    2005 SD 10
    Tony HANIG, Plaintiff and Appellant, v. CITY OF WINNER, Defendant and Appellee.
    No. 23208.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 15, 2004.
    Decided Jan. 19, 2005.

      George F. Johnson of Johnson, Eklund, Gregory, South Dakota, Attorneys for plaintiff and appellant.
    Michael A. Henderson of Cadwell, Sanford, Deibert <& Garry, Sioux Falls, South Dakota, Attorneys for defendant and ap-pellee.
   MEIERHENRY, Justice.

[¶ 1.] Hanig’s application for the renewal of his liquor license was denied by the City of Winner. Hanig believed the public hearing on the matter was conducted improperly, and he petitioned the trial court for a writ of mandamus to compel the Winner City Council to give him a fair and impartial hearing. The writ was denied on summary judgment. We reverse.

FACTS

[¶ 2.] Hanig had leased and operated the “Peacock Bar” in Winner, South Dakota since 1992. In 2002, Hanig decided to open a new steakhouse and lounge. Because there were no liquor licenses available in the City of Winner, Hanig purchased a piece of property outside of the city limits and sought a liquor license from the Tripp County Commissioners. The Tripp County Commissioners granted Hanig a liquor license for the property. Hanig experienced difficulties with acquiring a sewer easement across a neighbor’s property and asked the City of Winner to annex his property in order to attach to the city’s sewer system. The city council approved the annexation. Under the law, Hanig’s liquor license remained in effect until its expiration at the end of 2002. Approximately a month before the license expired, Hanig applied to the City for renewal. The City scheduled a public hearing.

[¶ 3.] On the day of the hearing Hanig submitted a building permit application to the City. His building permit application was for a restaurant and lounge to be built on the annexed property. At the liquor license hearing that evening, the city building inspector informed the city council that he was denying the building permit application because the site plan submitted by Hanig was inadequate and incomplete. When council members asked Hanig about the intended nature of the business, Hanig indicated he planned to open a steakhouse and lounge employing eight to ten people. Some of the details of his business plan had not been finalized, including whether he would employ “exotic dancers.”

[¶ 4.] The city council consisted of six members. One of the council members was employed as a part-time waitress at a competitor steakhouse in Winner. The owner of the steakhouse, the council member’s employer, spoke to her and wrote a letter to her urging denial of Hanig’s license renewal. She and all other members of the council voted to deny Hanig’s liquor license renewal. According to the minutes, the decision was made because “questions remained about the business plan and suitability of the loeation[.]”

[¶ 5.] Hanig petitioned the trial court for a writ of mandamus to compel the Winner City Council to give him a new hearing, contending his initial hearing was not “fair and impartial.” Hanig claims the city council member employed by the competitor steakhouse had a conflict of interest. He further asserts the council denied the license based upon inappropriate considerations. The City moved for summary judgment on the petition, asserting that it had followed the appropriate procedure in reviewing and denying the renewal of the license, and that the decision to deny was based on appropriate considerations, i.e. the lack of an adequate business plan and the resulting inability to assess the suitability of the location. Summary judgment was granted and Hanig appeals.

STANDARD OF REVIEW

[¶ 6.] The determinative facts in this case are undisputed. Ultimately this appeal concerns whether the circuit court applied the correct legal standard to these facts. “Questions requiring application of a legal standard are reviewed as are questions of law — de novo.” Voeltz v. John Morrell & Co., 1997 SD 69, ¶ 9, 564 N.W.2d 315, 316 (citing Phipps Bros. Inc. v. Nelson’s Oil & Gas, Inc., 508 N.W.2d 885, 888 (S.D.1993))(additional citations omitted).

ISSUE

Whether the trial court erred in denying Hanig’s request for Writ of Mandamus for a new hearing on the renewal of his liquor license before the City Council.

DECISION

Due Process Requires a Fair Tribunal

[¶ 7.] Under South Dakota law, a municipality has the authority to grant a retail liquor license. SDCL 35-2-1.2. The city commission’s obligation or duty is to approve or disapprove an application for a license based upon the suitability of the applicant and the suitability of the proposed location. Id. The law provides:

All applications for retail licenses except those set forth in § 35-2-1.1 shall be submitted to the governing board of the municipality within which the applicant intends to operate, or if outside the corporate limits of a municipality, to the board of county commissioners of the county in which the applicant seeks to operate. The application shall be accompanied by the required fee. The governing board shall have discretion to approve or disapprove the application depending on whether it deems the applicant a suitable person to hold such license and whether it considers the proposed location suitable.

Id. The law also requires a public hearing on the application.

[¶ 8.] Hanig asserts that the City Council had a legal duty to perform the ministerial act of providing him a “fair and impartial” liquor license hearing free of arbitrary, capricious, or personal or selfish motives. Hanig seeks the issuance of a Writ of Mandamus to compel the city council to provide a fair hearing.

[¶ 9.] A Writ of Mandamus is appropriate if there is “a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.” Baker v. Atkinson, 2001 SD 49, ¶ 16, 625 N.W.2d 265, 271 (citing Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242 (citations omitted)). We have approved a writ for a denial of a liquor license by a city commission when its action, “has been arbitrary or capricious, or based on personal, selfish, or fraudulent motives, or on false information, or on a total lack of authority to act[.]” Hendriks v. Anderson, 522 N.W.2d 499, 501 (S.D.1994) (citations omitted).

[¶ 10.] We have also said: “[a]n individual’s constitutional right to due process includes fair and impartial consideration” by a local governing board. Riter v. Woonsocket Sch. Dist., 504 N.W.2d 572, 574 (S.D.1993) (citing Moran v. Rapid City Area Sch. Dist., 281 N.W.2d 595, 600 (S.D.1979)). Due process also requires a fair tribunal. As we have previously stated:

A fair trial in a fair tribunal is a basic requirement of due process. This applies to administrative agencies which adjudicate as well [as] to courts. Not only is a biased decision maker constitutionally unacceptable, but our system of law has always endeavored to prevent even the probability of unfairness.

Strain v. Rapid City Sch. Bd., 447 N.W.2d 332, 336 (S.D.1989) (citations and quotations omitted). We have further stated that “the ‘very appearance of complete fairness’ must be present.” Northwestern Bell Tel. Co., Inc. v. Stofferahn, 461 N.W.2d 129, 133 (S.D.1990) (citing Mordhorst v. Egert, 88 S.D. 527, 223 N.W.2d 501, 505 (1974) (quoting Wall v. American Optometric Assn., Inc., 379 F.Supp. 175 (N.D.Ga.1974))); see also South Dakota Real Estate Com’n. v. Haggar, 446 N.W.2d 66, 68 (S.D.1989) (“ ‘Appearance of fairness’ is of course sought in each case, but the standard to be applied is ‘due process.’ ”).

[¶ 11.] Hanig has the right to due process including a fair and impartial hearing. In an adjudicative proceeding, the test we have applied in determining whether an applicant received a fair and impartial hearing is whether there was actual bias or an unacceptable risk of actual bias. Voeltz, 1997 SD 69, ¶ 12, 564 N.W.2d at 317; see also Strain, 447 N.W.2d at 336. As we stated in Strain, “[t]he standard to be applied is whether the record establishes either actual bias on the part of the [] [tribunal] or the existence of circumstances that lead to the conclusion that an unacceptable risk of actual bias or prejudgment inhered in the [] [tribunal’s] procedure.” Id. Thus to prove his hearing was not fair and impartial, Hanig need only show an unacceptable risk of actual bias, and he is not necessarily required to show actual bias.

Conflict of Interest

[¶ 12.] Hanig claims that he did not receive a fair and impartial hearing because of a conflict of interest of the city councilwoman who worked for a competitor. He points out that the councilwoman was pressured from her employer to deny the renewal. He also claims that she may have been affected financially if Hanig’s business successfully took business away from her employer. He argues that since she received part of her wages from tips, reduced patronage had the potential of reducing her income. The question is whether the undisputed facts constitute a conflict of interest sufficient to disqualify the councilwoman from voting on Hanig’s renewal. We believe it does.

[¶ 13.] We have established that due process is denied when an unacceptable risk of actual bias exists. If a governmental official has a conflict of interest, an unacceptable risk of actual bias will normally exist and the official should not participate in the proceedings. In order to determine when and under what circumstances a conflict of interest disqualifies a local official by creating an unacceptable risk of actual bias, we first look for guidance from the legislature.

[¶ 14.] The legislature has addressed disqualification of officials in certain circumstances. For example, the law prohibits a “mayor, alderman, commissioner, or trustee” who holds a liquor license from voting “on the issuance or transfer of any such license.” SDCL 9-14-16. Local officials are prohibited from having an interest in contracts with the local government entity. SDCL 6-1-1 (exceptions enumerated in SDCL 6-1-2). A State Banking Commission member must disqualify him or herself when a bank application “involves the establishment of an association in the primary trade territory of an association in which a board member has an interest.” SDCL 52-4-13. A member of the Science and Technology Authority and a member of the Health and Educational Facilities Authority must abstain from “deliberation, action and vote by the authority in each instance where the business affiliation of any such [member] is involved.” SDCL 1-16A-6, SDCL 1-16H-12. We can glean from these legislative mandates that public policy demands that officials normally disqualify themselves when they have a business or personal interest in the subject on which they must vote, regardless of whether this interest creates an actual bias.

[¶ 15.] We have further described what constitutes a disqualifying conflict of interest in our prior cases. We highlighted in Speckels v. Baldwin the importance of government officials “to serve their government and the people, uninfluenced by adverse motives and interests.” 512 N.W.2d 171, 175 (S.D.1994) (citing State v. Weleck, 10 N.J. 355, 91 A.2d 751 (N.J.1952)). We said:

Such required conduct demands undivided loyalty and compels public officers to refrain from outside activities which interfere with proper discharge of their duties, or which may expose them to the temptation of acting in any manner other than in the best interests of the public.

Id. (quoting 2A Antieau’s Local Government Law § 22.59 (rev. ed.1992)). We determined, in Voeltz v. Morrell that potential employment of the hearing officer with one of the litigants — John Morrell & Co.— disqualified the officer because of the risk of actual bias. 1997 SD 69,- ¶ 14, 564 N.W.2d at 318. In Voeltz we referenced the following language from the New Jersey Supreme Court: “The question will always be whether the circumstances could reasonably be interpreted to show that they had the likely capacity to tempt the official to depart from his sworn public duty.” Id. (referencing Van Itallie v. Borough of Franklin Lakes, 28 N. J. 258, 146 A.2d 111, 116 (1958)). Consequently, the circumstances and facts of each situation should control whether disqualification is required. If the circumstances show a likely capacity to tempt the official to depart from his duty, then the risk of actual bias is unacceptable and the conflict of interest is sufficient to disqualify the official.

[¶ 16.] In comparison, Minnesota courts consider a number of factors in determining whether the conflict requires an official’s nonparticipation. The Minnesota Supreme Court set forth several factors to guide Minnesota courts in determining when a government official has a disqualifying conflict of interest. The Court stated:

There is no settled general rule as to whether such an interest will disqualify an official. Each case must be decided on the basis of the particular facts present. Among the relevant factors that should be considered in making this determination are: (1) The nature of the decision being made; (2) the nature of the pecuniary interest; (3) the number of officials making the decision who are interested; (4) the need, if any, to have interested persons make the decision; and (5) the other means available, if any, such as the opportunity for review, that serve to ensure that the officials will not act arbitrarily to further their selfish interests.

E.T.O., Inc. v. Town of Marion, 375 N.W.2d 815, 819 (Minn.1985) (quoting Lenz v. Coon Creek Watershed District, 278 Minn. 1, 153 N.W.2d 209, 219 (1967)).

[¶ 17.] In E.T.O. the Minnesota court applied these factors to a situation involving a member of the local town board who voted against renewing a bar liquor license. Id. The board member had stated publicly his opposition to the bar because he owned land across from the bar which he believed had decreased in value since the bar opened. Id. at 816. After publicly voicing his opposition to the license renewal, he ran for an open seat on the town board and won. Id. He was elected mainly because of his opposition to the bar. Id. The Court held he was ineligible to vote on the bar’s request. Id. at 819. The Court found he had “a direct, substantial and flagrant conflict of interest.” Id. The Court found the Minnesota statute barring public officers from having a personal financial interest in contracts analogous. The Court said:

While it may be argued that issuance of a license is not technically a contract, the analogy is still strong. In any event, the statute makes clear the intent of the legislature to assure that a public official of Minnesota have no personal financial interest in an action performed in his official capacity.

Id. at 819-820.

[¶ 18.] The Iowa Supreme Court in determining whether a zoning board member needed to be disqualified because of an alleged conflict of interest looked to common law. Bluffs Dev. Co., Inc. v. Bd. of Adjustment, 499 N.W.2d 12, 14-15 (Iowa 1993). It stated:

Under the common law, officials exercising quasi-judicial powers [are] disqualified or incompetent to sit in a proceeding in which [they have] prejudged the case, or in which [they have] a personal or pecuniary interest, where [they are] related to an interested person within the degree prohibited by statute, or where [they are] biased, prejudiced, or labor [ ] under a personal ill-will toward a party. 1 Am.Jur.2d Administrative Law § 64, at 860-61 (1962).
The reasoning underlying the common law rule is simple: “[T]he public is entitled to have their representatives perform their duties free from any personal or pecuniary interest that might affect their judgment.” Netluch v. Mayor & Council of West Paterson, 130 N.J.Super. 104, 107-08, 325 A.2d 517, 519 (1974). Deviation from the rule can invalidate the governmental action taken. The reason for such a drastic result is again simple: “to prevent the possibility of an official in a position of self-interest to deviate from his sworn public trust.” Id. at 108, 325 A.2d at 519.

Id. The Court further pointed out that although “[t]here is no mathematical way to quantify the interest necessary to taint the process and disqualify quasi-judicial officers from acting on matters before them,” courts have established standards. Id. at 15. The Iowa court stated the standards as follows:

The interest must be different from that which the quasi-judicial officer holds in common with members of the public.... In addition, such interest must be “direct, definite, capable of demonstration, not remote, uncertain, contingent, unsubstantial, or merely speculative or theoretical.”

Id. (quoting 1 Am.Jur.2d Administrative Law § 64, at 861 (1962)) (additional citations omitted).

[¶ 19.] The New Jersey Supreme Court condensed conflicts requiring disqualification into four types of situations:

(1) “Direct pecuniary interests,” when an official votes on a matter benefiting the official’s own property or affording a direct financial gain;
(2) “Indirect pecuniary interests,” when an official votes on a matter that financially benefits one closely tied to the official, such as an employer, or family member;
(3) “Direct personal interest,” when an official votes on a matter that benefits a blood relative or close friend in a non-finaneial way, but a matter of great importance, as in the case of a councilman’s mother being in the nursing home subject to the zoning issue; and
(4) “Indirect Personal Interest,” when an official votes on a matter in which an individual’s judgment may be affected because of membership in some organization and a desire to help that organization further its policies.

Wyzykowski v. Rizas, 132 N.J. 509, 626 A.2d 406, 414 (1993) (citation omitted). If a board member’s interest fits within any of these categories, that board member either has an actual bias or an unacceptable risk of actual bias. Id. These categories are succinct and informative. We believe the categories can serve as guidance to South Dakota officials and courts in determining whether an actual bias or an unacceptable risk of actual bias exists.

Councilwoman’s Indirect Pecuniary Interest

[¶ 20.] In the case before us, the question is whether the councilwoman’s conflict of interest compelled her to abstain from voting on Hanig’s license. It is undisputed that the couneilwoman worked as a waitress in a competitor’s bar in Winner. She admits in her deposition that she knew her employer opposed the liquor license renewal for Hanig. She also admits that she received a letter from her employer voicing his opposition. She also conceded that if there was another bar in town her income based on tips may be impacted. Her conflict fits within the category of “indirect pecuniary interest.” In addition, her interest is different from the interest of members of the general public. Therefore we hold that her conflict of interest is of sufficient magnitude that she should have been disqualified from participating in the decision.

Conflict Invalidates Vote

[¶ 21.] The second question of whether Hanig is entitled to a new hearing is more difficult. Some courts have held that if one member has a conflict of interest it taints the entire process and the applicant is entitled to a new determination without the disqualified member. Piggott v. Borough of Hopewell, 22 N.J.Super. 106, 91 A.2d 667 (Ct. Law Div. 1952); Baker v. Marley, 8 N.Y.2d 365, 208 N.Y.S.2d 449, 170 N.E.2d 900 (1960); Buell v. City of Bremerton, 80 Wash.2d 518, 495 P.2d 1358 (1972); see also 2 C. Dallas Sands, Michael Libonati & John MaRtinez, Local GOVERNMENT Law § 11:10 (October 2004). Other courts do not automatically invalidate the vote and instead take the position that where the required majority exists without the vote of the disqualified member, his participation in the deliberation and in the voting will not invalidate the result. Waikiki Resort Hotel, Inc. v. City and County of Honolulu, 63 Haw. 222, 624 P.2d 1353, 1371 (1981); Singewald v. Minneapolis Gas Co., 274 Minn. 556, 142 N.W.2d 739, 740 (1966); Anderson v. City of Parsons, 209 Kan. 337, 496 P.2d 1333, 1337 (1972); Eways v. Reading Parking Authority, 385 Pa. 592, 124 A.2d 92, 98-99 (1956); See also Mark W. Cordes, Policing Bias and Conflicts of Interest in Zoning Decisionmaking, 65 ND L.Rev. 161, 215-16 (1989). Still other courts look to additional criteria to determine if the vote should stand, such as whether the board member had disclosed the conflict, the influence of conflicted member in the decision, and the extent of the member’s interest. Another situation which ’ sometimes arises is if a vote requires a certain percentage or quorum and disqualification of all conflicted members leaves less than the quorum needed to vote. In those cases, the doctrine of necessity is applied. See Gunthner v. Planning Bd. of Borough of Bay Head, 335 N.J.Super. 452, 762 A.2d 710, 715-17, (Ct.Law Div.2000). It, however, is only applied when there is “a pressing public need for action, there is no other forum in which the matter can be decided and the board cannot act without the disqualified members.” Mat 717.

[¶ 22.] In our prior cases where we have found due process violations based upon a conflict of interest, we have imposed remedies designed to place the complainant in the same position had the lack of due process not occurred. Riter, 504 N.W.2d at 577 (citing Jager v. Ramona Bd. of Educ., Ramona School Dist., 444 N.W.2d 21, 27 (S.D.1989)). In Stofferahn, we found that the member with the conflict could not participate in the hearings. Stofferahn, 461 N.W.2d at 135. In Speck-els and Riter, we voided the proceedings. Speckels, 512 N.W.2d at 176; Riter, 504 N.W.2d at 577. Following our prior cases and the analysis of the courts in other jurisdictions that void the action, we hold that under the facts of this case, Hanig is entitled to a new hearing.

[¶ 23.] The basis of granting a new hearing is first and foremost that one of the council members had an indirect pecuniary interest. Additionally, the councilwoman did not disclose the conflict or recognize that she needed to disqualify herself. The necessity to disclose a conflict cannot be over emphasized. If board members conscientiously consider their conflicts and disclose them prior to any action, it would give the applicant or petitioner the opportunity to weigh the nature of the conflict and determine whether to waive the disqualification. Without the disclosure, the applicant is placed in the precarious position of challenging a board member who may not have disclosed a conflict and refuses to disqualify himself or herself. On the other hand, the applicant may not discover the conflict until after the hearing and denial of the request. In this case, the councilwoman should have disclosed her conflict and the letter she had received from her boss urging denial of the license and disqualified herself from the proceedings.

Other Concerns

[¶ 24.] In addition to the conflict of interest issue, there are other concerns about the council’s action that raise questions about its fairness. Hanig pointed to the following “circumstantial evidence”: (1) that the factors considered by the council are not expressly required by statute; (2) that the city council did not notify him that an approved building permit was a prerequisite to renewal; (3) that the city did not object to the location when the property was annexed; (4) that the city has renewed two other liquor licenses located in the same area; (5) that the city did not follow its own long standing policy of renewing a liquor license absent any illegality in its use; and (6) that the council did not allow Hanig additional time to provide a detailed business plan.

[¶ 25.] The council, according to its minutes, denied the renewal because “questions remained about the business plan and suitability of the location.” The City also presented depositions by the mayor and council members wherein they stated that their primary concern was that Hanig’s building permit had been denied. Hanig points out that these factors are not expressly required by statute. Specifically, he is not required by law to have a building permit before getting a liquor license. We have recognized, however, that a city council may look at factors beyond the statutory requirements such as the type of business, how it will be operated, policing issues and other factors “inherently associated in the sale of alcoholic beverages.” Hendriks, 522 N.W.2d at 501-02 (citing Randall’s-Yankton, Inc. v. Ranney, 81 S.D. 283, 288, 134 N.W.2d 297, 300 (1965)). Here the denial of the building permit was not disclosed until the hearing nor was the fact that Hanig’s liquor license renewal hinged on the permit approval. Hanig’s prior experience with the City involved almost automatic renewal of a license absent any illegality in its use. In fact, when he received renewal to the license for the Peacock Bar, which he managed, he was not even required to appear at the hearing. Also, the City annexed his property a short time earlier, which included the county liquor license, without voicing concern. This “circumstantial evidence,” as Hanig entitles it, may not alone cause us to reverse the council’s decision as arbitrary and capricious or a denial of due process; however, it does raise questions. We address them only to alert and remind the council that since it will need to have a new hearing on Hanig’s application, it should be diligent in providing a fair and impartial proceeding.

CONCLUSION

[¶ 26.] Based on the undisputed facts concerning the couneilwoman’s indirect pecuniary interests, we reverse and direct the circuit court to issue a writ of mandamus requiring the city council to conduct a new hearing and vote without the disqualified member’s participation and with full disclosure of any conflicts of the remaining members.

[¶ 27.] SABERS, KONENKAMP, and ZINTER, Justices, concur.

[¶ 28.] GILBERTSON, Chief Justice, dissents.

GILBERTSON, Chief Justice

(dissenting).

[¶ 29.] I respectfully dissent. I would affirm the trial court.

[¶ 30.] Pursuant to the Twenty-first Amendment of the United States Constitution, South Dakota has enacted a detailed legislative program for the regulation and control of the sale of alcoholic beverages within its boundaries. In State v. I-90 Truck Haven Service, 2003 SD 51, ¶ 8, 662 N.W.2d 288, 291, we set forth the standard for statutory construction of alcoholic beverage statutes:

Ultimately, the purpose of statutory interpretation is to fulfill the legislative dictate. Intent is ordinarily ascertained by examining the express language of the statute. We therefore defer to the text where possible. We read statutes as a whole along with the enactments relating to the same subject. We assume that the Legislature intended that no part of its statutory scheme be rendered mere sur-plusage
[Faircloth v. Raven Industries, Inc.,] 2000 SD 158, ¶ 6, 620 N.W.2d 198, 201 (citations omitted).... We have speeifi-eally applied this standard of statutory analysis in a previous case concerning the legal rights and responsibilities of alcohol beverage licensees. Rushmore State Bank v. Kurylas, Inc., 424 N.W.2d 649, 653 (S.D.1988).

[¶ 31.] In the matter of liquor licenses, the Legislature recognized that the issuance of licenses by municipalities could involve a conflict of interest. Therefore it passed SDCL 9-14-16 which prohibits a “mayor, alderman, commissioner, or trustee” who holds a liquor license from voting “on the issuance or transfer of any such license.” In a similar vein, SDCL 35-1-3 prohibits the Secretary and employees of the Department of Revenue from having any “interest, financial or otherwise, in the ... sale of alcoholic beverages.” SDCL 35-2-6.4 bars liquor manufacturers and wholesalers from holding á retail liquor license. However, that is as far as the Legislature felt it appropriate to act. Significantly for This casé, it never-prohibited even those local city council members who held liquor licenses from voting on other liquor license applications. We have said repeatedly that the Legislature said what it meant and meant what it said. S.D. Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, ¶ 22, 589 N.W.2d 206, 210. Nevertheless, based upon case law from other states with their own liquor statutes, the Court today expands the clear scope of SDCL 9-14-16 to prohibit voting on a liquor license if a council member has a de minimus financial interest in the issue.

[¶ 32.] More significantly, the Court concludes that one council member’s de minimus financial interest taints the vote of the entire council. This is -not a criminal case requiring a unanimous vote. Rather a majority vote will approve a proposition. This may be by an affirmative vote o.f four members or three with the mayor breaking a tie. SDCL 9-8-8, 9-8-3.

[¶ 33.] Citing Strain v. Rapid City School Dist., 447 N.W.2d 332, 336 (S.D.1989), the Court also applies to liquor license proceedings a due process standard applicable to tenured teacher termination proceedings conducted by school boards. The two types of proceedings are dissimilar as they address completely different interests.

[¶ 34.] The formality and procedural requisites of a hearing to address licensing issues depends on.the nature of the importance of the property interests involved. Appeal of Schramm, 414 N.W.2d 31, 34 (S.D.1987)(citing Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105. S.Ct. 1487, 84 L.Ed.2d 494 (1985); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)). Property rights are created and defined by state statutes.

“To establish a procedural due process violation, a plaintiff must demonstrate that he has a protected property or liberty interest at stake-and that he was deprived of that interest without due process of law.” First, the property interest must be derived from a source independent from the Constitution. Second, the individual must have been deprived of this right by a state actor. Property interests are granted by state law.... See also [Hopkins v. Saunders, 199 F.3d 968, 975 (8thCir.1999) ](“A property interest worthy of due process protection must be granted or defined by a source independent from the Constitution, such as state law.”)(citing Board of Regents v.Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972)).

Osloond v. Farrier, 2003 SD 28, ¶ 16, 659 N.W.2d 20, 24-25 (some citations omitted). A tenured teacher has a property right in his or her position under our teacher contract law. This is granted the teacher by statute. See SDCL 13-43-6.3. See also Wirt v. Parker School Dist. # 60-4, 2004 SD 127, 689 N.W.2d 901.

[¶ 35.] There is no statute granting the applicant for a liquor license a property right in that license. Moreover, we have consistently recognized the wide statutory latitude the liquor statutes grant the appropriate governing authority concerning the issuance of licenses. An earlier case which had cause to examine the nature of a liquor license in South Dakota, concluded:

From the above statutes, it is readily apparent that a liquor license in the State of South Dakota is nothing more than a personal privilege to participate in the monopoly granted to the state by the Twenty-First Amendment to the United States Constitution and implemented by Title 35 of the South Dakota Compiled Laws. Being a privilege, its value necessarily depends upon the circumstances of its use. Standing alone, a liquor license is worthless under the South Dakota statute. It is not a sever-able commodity from the premises where it is used.

Application of Roberts, 358 F.Supp. 392, 396 (D.S.D.1973). In Kurylas, 424 N.W.2d at 653, we held that, as between the state and the licensee, there clearly is no general property right in a liquor license in South Dakota. See also State v. I-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 16, 662 N.W.2d at 292; In re Engels, 2004 SD 97, ¶ 13, 687 N.W.2d 30, 34.

License renewal applicants in other jurisdictions may be entitled to rudimentary procedural due process, but our law does not require imposing the same process allowed to those whose licenses are up for revocation, because “there clearly is no general property right in [an alcoholic beverage] license in South Dakota as between the state and the licensee.” [Kurylas, 424 N.W.2d at 650]; cf. SDCL 35-2-10; Janssen v. Maxam, 289 N.W.2d 256 (S.D.1980)(administrative procedures act not applicable to denial of license application).

Woodruff v. Meade County Bd. of Com’rs, 537 N.W.2d 384, 386 (S.D.1995).

[¶ 36.] Despite the absence of a general property right in a liquor license, the license applicant is guaranteed the same procedural due process rights as any citizen who wishes to be heard by a governing body: the right to a hearing, notice of the hearing and the right to be heard on the license application. Kurylas, supra; Engels, supra. These guarantees are created by statute. See SDCL 35-2-3 (“No license for the on- or off-sale at retail of alcoholic beverages ... shall be granted to any applicant for any such license, except after public hearing upon notice[.]”). All of these procedural steps were followed in this case. Thus, the Strain standard is inapplicable herein. Clearly there was no property right as: (1) this was only an application for the liquor license; and (2) as between the issuing authority and the holder of an existing license, no property right exists.

[¶ 37.] This leaves the question of the legal status of the council’s decision to deny the liquor license. Clearly the applicant is entitled to a fair tribunal. See Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). However, even when there are significant property rights at stake such as in Strain, a board member is not disqualified as a decision maker solely because of prior involvement. “Pre-decision involvement ‘is not enough to overcome the presumption of honesty and integrity in policy makers with decision-making power.’ ” Strain, 447 N.W.2d at 336 (quoting Hortonville Dist. v. Hortonville Ed. Ass’n, 426 U.S. 482, 497, 96 S.Ct. 2308, 2316, 49 L.Ed.2d 1, 11-12 (1976)).

[¶ 38.] Public decision makers “are presumed to be objective and capable of judging controversies fairly on the basis of their own circumstances.” See Voeltz v. John Morrell & Co., 1997 SD 69, ¶ 11, 564 N.W.2d 315, 317 (quoting Northwestern Bell Tel. Co., Inc. v. Stofferahn, 461 N.W.2d 129, 133 (S.D.1990)). To overcome that presumption the record must establish either: “1) actual bias on the part of the adjudicator, or 2) the existence of circumstances that lead to the conclusion that an unacceptable risk of actual bias or prejudgment inhered in the proceeding.” Id.

[¶ 39.] Based on the limited statutory prohibitions cited above, I would not have disqualified the councilwoman in question on the basis that she got tips from part-time employment that Hanig claimed might decline as a result of new competition. The councilwoman testified under oath that the basis for her vote was the lack of a building permit. She was unsure whether another bar in Winner would reduce her income from tips. Hanig offered no evidence to contradict any of this.

[¶ 40.] The councilwoman’s direct contact from her employer is a different matter. That contact could have put the councilwoman’s job squarely on the line based upon her vote. Given that this is an appeal from a summary judgment order, it was probably sufficient to disqualify her. However, there were still five votes from other council members to deny the license renewal. Those votes were for valid reasons, those being the applicant’s lack of a building in which to engage in the sale of liquor and his lack of a building permit to build one.

[¶41.] Hanig did not appeal the city building inspector’s denial of his building permit. Thus, there was no basis to question the validity of its denial. This was significant for purposes of summary judgment as it placed Hanig in the legal posture of seeking a liquor license for a location without a building, a building permit, or the right to appeal its denial. Since the city council never got a chance to review the denial of the building permit because of Hanig’s failure to appeal it, any fault rested with Hanig and not the Council.

[¶ 42.] Liquor licenses are granted to a specific location and logic would dictate that it should not be to a vacant lot. SDCL 35-2-1.2 authorizes the city council to require a “suitable” location for the issuance of a license. It is not beyond the council’s discretion to conclude that a vacant lot for which there is no valid building permit is not “suitable.” As this Court noted in Randall’s-Yankton, Inc. v. Ranney, 81 S.D. 283, 134 N.W.2d 297 (1965), the purpose of the public hearing on a liquor license is for the governing body to exercise its discretion. Were there no such discretion, and the governing body limited to the statutory requirements, then “such a public hearing would be meaningless.” Randall’s, 81 S.D. at 288, 134 N.W.2d at 300. See also Hendriks v. Anderson 522 N.W.2d 499 (S.D.1994)(no abuse of discretion in refusal of license where city council concluded applicant did not possess an adequate building to operate the business).

[¶ 43.] At the hearing, Hanig was allowed to present any evidence he wished in support of his license renewal. Moreover, Hanig’s own testimony supports the correctness of the council’s decision on the application:

Q. Okay, Is it your understanding today that the reason the City Council voted to deny your application was that they didn’t feel you had presented adequate building plans or business plans to them?
A. That is my understanding, yes.
Q. Do you have any reason to believe the City Council isn’t being truthful about that?
A. I believe they are being truthful.
Q. You believe they are being truthful. Okay. You just disagree with the decision made; correct?
A. Correct.

That position is once again conceded in Hanig’s appellate brief where he states, “[t]o be blunt, Hanig does not possess any direct evidence to prove pretext.”

[¶ 44.] Perhaps my strongest disagreement with the opinion of the Court is in its determination that citizen communication with the remaining five council members constituted an “indirect personal interest” which tainted their vote. This license application clearly was an important and controversial request within the City of Winner. Opposition to it at the council hearing ran the gamut from the Winner Ministerial Association to the Winner “liquor industry.” What of the First Amendment which guarantees citizens the right of petitioning their public officials? Are phone calls, personal contact and letters to officials now tainted? What about indirect contact such as letters to the local newspaper? Are citizens now effectively silenced unless they personally appear at the meeting to voice their objections? “ ‘Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.’ ” State v. Springer-Ertl, 2000 SD 56, ¶ 11, 610 N.W.2d 768, 771 (citing Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1, 10 (1978) (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484, 488 (1966))).

[¶ 45.] In conclusion, “ ‘[t]he Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system[.]’ ” South Dakota v. Dole, 483 U.S. 203, 205, 107 S.Ct. 2793, 2795, 97 L.Ed.2d 171, 177 (1987) (quoting California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 100 S.Ct. 937, 946, 63 L.Ed.2d 233, 246 (1980)). The South Dakota Legislature exercised that constitutional power by granting very broad discretion to the licensing authority, in this case the City of Winner. The city’s decision to annex the property did not result in a forfeiture of its discretion to approve or disapprove this liquor license application under SDCL 35-2--1.2. The city was mandated by state law to review the appropriateness of Hanig’s application under South Dakota’s statutes, not those of some other jurisdiction. The disqualified eouncilwoman aside, there were still five votes to deny the application on the basis of an inadequate place in which to do business. This was not an abuse of discretion. No writ should issue. Therefore, I would affirm the circuit court and respectfully dissent from this Court’s conclusion otherwise.

APPENDIX A

APPENDIX A

      . SDCL 35-4-14 provides:
      If by reason of the annexation of territory by any municipal corporation or county, the premises of an on-sale licensee shall be transferred from one jurisdiction to another, such licensee shall continue to legally operate until the expiration of such license. Thereafter, such licensee shall make application for his license renewal to the governing board which has jurisdiction of the licensed premises, and such license shall not be denied on the grounds that, by the issuance of such license, more on-sale licenses are in existence than is permitted by the limitations of this chapter.

      . The law provides:
      SDCL 35-2-3
      No license for the on- or off-sale at retail of alcoholic beverages, as the same are defined and classified under the provisions of this title, shall be granted to an applicant for any such license, except after public hearing, upon notice, as provided for in §§ 35-2-4 and 35-2-5.
      SDCL 35-2-5
      The governing board of any incorporated municipality ... shall fix the time and place for hearing upon all such applications which may come before such board and the auditor or finance officer of such board shall publish notice once in the official newspapers of such municipality ... which notice shall be headed “Notice of Hearing Upon Applications for Sale of Alcoholic Beverages,” shall state the time and place when and where such applications will be considered by said board and shall state that any person interested in the approval or rejection of any such application may appear and be heard, which notice shall be published at least one week prior to such hearing. At the time and place so fixed, such board shall consider such applications and all objections thereto, if any, prior to final decision thereon.

      . Adjudicatory hearings involve actions that are "particular and immediate,” in contrast to legislative or rule making actions which are "general and future in effect.” Stofferahn, 461 N.W.2d at 133 (citations and quotations omitted). A liquor license renewal hearing is adjudicatory.

      . The Minnesota statute is similar to SDCL 6-l-l.

      . A New Jersey court found that two council members had a disqualifying interest by belonging to churches whose ministers protested a liquor license petition. Marlboro Manor, Inc. v. Bd. of Com’rs of Montclair Tp., 187 N.J.Super. 359, 454 A.2d 905 (Ct.App.Div.1982).

      . The history of the license itself gave the council nothing to review. The license issued by Tripp County had never been used by a functioning bar except on one occasion when Hanig apparently sold a case of beer to friends.

      . At this point, Hanig cannot fault the city's handling of the building permit application. He filed the application on January 6, 2003, the same date as the hearing on the liquor license. His plans were deemed "incomplete and inadequate” by the city official who reviewed the application (attached as Appendix A to this writing).

      . If the council had undisclosed reasons to deny the license, as Hanig claims, he fails to explain why the city approved the annexation of his property in the first place knowing that he possessed a county liquor license and that, to the future, he would look to the city to renew it. Without that annexation, there could have been no issues over the city building permit and the city liquor license.