author: RUSCH, Circuit Judge.

text:
    2005 SD 91
    Jason DODSON, individually and as Special Administrator of the Estate of Kristi M. Dodson, Deceased, Plaintiff and Appellant, v. SOUTH DAKOTA DEPARTMENT OF HUMAN SERVICES and South Dakota Human Services Center; Dr. Hartley Alsgaard, individually and in his capacity as an employee of the South Dakota Department of Human Services, Defendants and Appellees, and Avera McKennan Hospital of Sioux Falls and Dr. Matthew Stanley, Defendants.
    No. 23234.
    Supreme Court of South Dakota.
    Argued March 23, 2005.
    Decided Aug. 10, 2005.

      Edward C. Carpenter of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for plaintiff and appellant Jason Dodson.
    Gary P. Thimsen and Mary A. Akker-man of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendants and appellees South Dakota Department of Human Services and Human Services Center and Dr. Hartley Als-gaard.
   RUSCH, Circuit Judge.

[¶ 1.] In this medical malpractice action, Jason Dodson (Jason), individually and as special administrator of the estate of his wife, Kristi M. Dodson (Kristi), appeals from a decision of a Minnehaha County jury that barred any recovery because of Kristi’s contributory negligence. Because the trial court erred in how it instructed the jury on the issue of contributory negligence, we reverse and remand for a new trial.

FACTUAL AND PROCEDURAL HISTORY

[¶ 2.] Kristi graduated from Pierre High School in 1998. While in high school she was involved in numerous activities and had a wide circle of friends. She lived in Kansas from 1998 to 2000 and then returned to Pierre where she and Jason were married in August 2000. Shortly after the wedding Kristi began to suffer from various health problems as well as erratic behavior.

[¶ 3.] On March 21, 2001, Kristi’s parents and husband persuaded her to enter McKennan Hospital for evaluation and treatment. While there, she was diagnosed with bipolar disorder which is also referred to as manic depression. This is a severe mental illness which is characterized by wide mood alterations or swings between depression and mania and has a high rate of suicide. At the hospital she was severely depressed and on April 1 attempted to commit suicide. Although she was unconscious when found, she was successfully resuscitated. Two days later McKennan Hospital recommended that Kristi be transferred to the South Dakota Human Services Center (HSC) for long term treatment. She was taken to HSC on April 4 and remained there until April 11 when she was discharged. Her husband took her home to Pierre that day and the following day she committed suicide.

[¶ 4.] This action was brought by Kristi’s estate against Dr. Matthew Stanley and his employer Avera McKennan Hospital, the South Dakota Human Services Center, and Dr. Hartley Alsgaard and his employer the South Dakota Department of Human Services. Appellees raised the affirmative defenses of contributory negligence and assumption of the risk. The case was tried to a jury in Minnehaha County in February 2004. At trial there was a factual dispute as to how and why Kristi was released from HSC. The jury was given the standard instruction on the affirmative defense of contributory negligence which told them to apply an objective reasonable person standard to Kristi’s conduct. They were also instructed on the defense of assumption of the risk.

[¶ 5.] Following a five day trial, the jury found that Avera McKennan Hospital and Dr. Stanley were not negligent. The jury found that HSC or Dr. Alsgaard breached the applicable standard of care for Kristi and that this breach was the legal cause of her injuries or damages. However, the jury also found that any recovery against these appellees was barred by Kristi’s contributory negligence which was more than slight. As a result, the jury did not reach the issue of assumption of the risk.

[¶ 6.] Jason appeals raising the following issue:

Whether the trial court erred in instructing the jury on contributory negligence and assumption of the risk.

STANDARD OF REVIEW

[¶ 7.] Our standard of review of this issue is settled:

Under our standard of review, we construe jury instructions as a whole to learn if they provided a full and correct statement of the law. If, as a whole, the instructions misled, conflicted, or confused, then reversible error occurred. The party charging that an instruction was given in error has the dual burden of showing that the instruction was erroneous and prejudicial. An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and is harmful to the substantial rights of the party assigning it.

Behrens v. Wedmore, 2005 SD 79, ¶ 37, 698 N.W.2d 555, 570 (citing First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448 (internal citations omitted)). See also Christenson v. Bergeson, 2004 SD 113, ¶ 14, 688 N.W.2d 421, 426. In this case, Dodson has the burden to show that the instructions given were in error, and that the error was prejudicial under SDCL 15-6-61. In order to prevail, error must be shown “ ‘which in all probability produced some effect upon the jury’s verdict and is harmful to the rights of the party assigning it.’ ” Christenson, 2004 SD 113 at ¶ 29, 688 N.W.2d at 428-429 (citing Kjerstad v. Ravellette Publications Inc., 517 N.W.2d 419, 426 (S.D.1994); State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987)).

DECISION

A. Contributory Negligence.

[¶ 8.] The defense of contributory negligence is applicable in professional negligence cases including medical malpractice actions. Mid-Western Elec. Inc. v. DeWild Grant Reckert, 500 N.W.2d 250, 254 (S.D.1993); Behrens, supra. The issue in this case is the proper standard to be applied by a jury in judging the contributory negligence of a plaintiff who was suffering from a mental illness. The general rule is that:

One whose mental faculties are diminished, not amounting to total insanity, is capable of contributory negligence, but is not held to the objective reasonable-person standard. Rather, such a person should be held only to the exercise of such care as he or she was capable of exercising, that is, the standard of care of a person of like mental capacity under similar circumstances.

57B AmJur2d Negligence § 864 (2005). See also William L. Prosser & W. Page Keeton, Prosser & Keeton on the Laio of Torts § 32 (5th ed 1984):

In the case of mentally defective or insane plaintiffs, where the issue involves the contributory or comparative fault of such persons, the policy arguments outlined above lose much of their force. In particular, the question shifts from which of two innocents should bear the loss to whether a negligent defendant should pay for the loss he has partially caused to a mentally incapacitated person incapable of properly looking after himself. Because of the obviously different equities in this situation, the great majority of courts in the contributory negligence context apply a lower standard of care and consider the plaintiffs incapacity as only one of the “circumstances” to be considered in judging the quality of his conduct.

[¶ 9.] Jason contends that contributory negligence instructions should not be given in suicide cases and there are authorities which support that view. See McNamara v. Honeyman, 406 Mass. 43, 546 N.E.2d 139, 146-147 (1989) (there can be no comparative negligence where the defendant’s duty includes preventing the self-destructive acts which caused the plaintiffs injury); Cowan v. Doering, 215 N.J.Super. 484, 522 A.2d 444, 448 (App.Div.1987) (a contributory negligence instruction should not be given in a suicide case because the “suicidal conduct constituted one of the very symptoms for which [the patient] was being treated.”); Cole v. Multnomah County, 39 Or.App. 211, 592 P.2d 221, 223 (1979) (a defendant’s liability may not be reduced by comparing his negligent conduct with the decedent’s intentional suicide since the suicide was the foreseeable risk created by the defendant’s negligence); Hoeffner v. The Citadel, 311 S.C. 361, 429 S.E.2d 190, 193 (1993) (where the duty exists to prevent a patient from committing suicide, the very suicide which the defendant has the duty to prevent cannot constitute assumption of the risk or contributory negligence).

[¶ 10.] Appellees contend that it was proper to instruct the jury on contributory negligence relying upon a 1925 decision by this Court involving a fact situation similar to the instant case. In Fetzer v. Aberdeen Clinic, 48 S.D. 308, 204 N.W. 364 (1925) a patient was operated on for appendicitis. Following the operation, the patient developed what the decision describes as delirium and, while in that state, jumped or fell from a third story window. In its decision, this Court indicated that there are no questions more delicate than the proper care to be given to delirious or irrational patients. The Court went on to set out a general rule that no one is required to guard against an event which a reasonable person would not anticipate as likely to happen. However, the Court also indicated that a defendant may be liable if he has notice or knowledge of conduct or a condition of mind on the part of the plaintiff which indicates that he intended self-injury or self destruction. This Court clearly indicated in Fetzer that a subjective standard should be applied in such a case, not an objective standard as was used in the instant case. The Court said:

It is evident that in this case, and in all similar cases, the injuries complained of are directly due to the acts of the person suffering the injuries. Under the general rule of law the contributory negligence of the injured person would bar any recovery on his part, or on the part of his representatives. It is only on the theory that the incapacity of the person injured removes his case from the general rule that any recovery can be had. Evidently, then, the burden is clearly upon those seeking to be relieved from this general rule to show such incapacity, and notice thereof to those sought to be charged. And it is further evident that this notice of the condition of the patient must be such as to give those sought to be charged reason to believe that his doing injury to himself may be anticipated.

Fetzer, 48 S.D. at 315, 204 N.W. at 367. This 1925 South Dakota decision is in accord with the majority view as set out in 57B AmJur2d Negligence § 864 and in Prosser and Keeton on the Law of Torts, § 32, that a mentally ill person should be required only to exercise such care as he or she is capable of exercising; this is the standard of care of a person of like mental capacity under similar circumstances. Under this standard the jury should be instructed to apply a subjective or capacity based test to a mentally ill plaintiffs conduct rather than the objective reasonable person standard which they were told to apply in this case.

[¶ 11.] As explained in Birkner v. Salt Lake County, 771 P.2d 1053, 1060 (Utah 1989):

[i]n contrast to the use of an objective standard in cases of primary negligence, the majority of courts have adopted a more compassionate stance regarding the contributory negligence of the mentally impaired. Those who are insane are incapable of contributory negligence, whereas lesser degrees of mental impairment should be considered by the jury in determining whether the plaintiff was eontributorily negligent.

Even Cowan, supra, the case relied upon by Jason, indicates that the modern trend is in favor of a capacity based standard for the contributory negligence of a mentally disturbed plaintiff. Similarly, many of the cases relied upon by appellees indicate the preference for the subjective, capacity based, standard. See Maunz v. Perales, 276 Kan. 313, 76 P.3d 1027 (2003) (the mental capacity of the plaintiff should be taken into consideration when determining fault and the jury should use a capacity based standard, not a reasonable person standard); Arias v. State, 195 Misc.2d 64, 755 N.Y.S.2d 223, 232 (N.Y.Ct.Cl.2003) (The standard of care which a mentally ill patient must exercise to protect himself is not based upon the objective standard of a reasonable person but rather is based upon the capacity of the patient and his perception of danger considering the degree of his illness); Hunt v. King County, 4 Wash.App. 14, 481 P.2d 593, 600 (1971) (contributory negligence can be a defense in an action where a patient jumped from a window but it is a prerequisite that the patient must be capable of exercising the care of a reasonable person); Hofflander v. St. Catherine’s Hospital, Inc., 262 Wis.2d 539, 664 N.W.2d 545 (2003) (if there was a special relationship and the caregiver knew or should have known of the particular risk of harm and there is some evidence that the caregiver failed to exercise the duty of care that was required under the circumstances, then the fact finder should compare the respective negligence under a subjective standard). In Champagne v. U.S., 513 N.W.2d 75, 80-81 (N.D.1994) the North Dakota Supreme Court held:

If the patient’s capacity for self care is so diminished by mental illness that it is lacking, we agree that an allocation of fault is not appropriate.
In making the fault comparison, the factfinder should always take into account the extent of the patient’s diminished mental capacity to care for his own safety.

[¶ 12.] The trial court in Fetzer utilized such a subjective, capacity-based, standard, and instructed the jury that:

“The court instructs the jury that the degree of care and diligence required is measured both by the mental incapacity of the patient and the dangers which the surroundings indicate may befall such patient in view of any peculiar mental traits exhibited by the patient.”

Fetzer, 48 S.D. at 313, 204 N.W. at 366. This is in marked contrast to the instruction given in the instant case where the jury was told:

Negligence is the failure to use reasonable care. It is the doing of something which a reasonable person would not do, ' or the failure to do something which a reasonable person would do, under facts similar to those shown by the evidence. The law does not say how a reasonable person would act under facts similar to those shown by evidence. That is for you to decide.

[¶ 13.] In the instant case the jury was instructed that Kristi’s conduct had to be measured by the standard of a reasonable person in those circumstances. They were not instructed that Kristi’s conduct was to be judged in light of her mental capacity. This defect was exacerbated by Instruction 17 which informed the jury that Kristi had to use the same care as any other reasonable person and made no reference to her mental capacity.

[¶ 14.] The evidence in this case was sufficient to show mental incapacity on the part of Kristi and that HSC and Dr. Alsgaard had notice of that incapacity. Her suicide attempt on April 1 gave them notice of this condition and reason to anticipate that Kristi could harm herself. The jury should have been instructed to evaluate the effect of that mental incapacity in judging Kristi’s contributory negligence. While it would have been preferable for Jason’s counsel to propose such a subjective instruction, counsel did move for a directed verdict on the issues of contributory negligence and assumption of the risk on the grounds that there was no evidence to enable the jury to evaluate the effect of Kristi’s mental illness on the issues of contributory negligence and assumption of the risk. This objection was sufficient to give the trial court an opportunity to correct the grievance complained about on appeal. Rogen v. Monson, 2000 SD 51, n. 2, 609 N.W.2d 456, 460.

[¶ 15.] Since the only reason the jury did not return a verdict in favor of Jason was the finding of contributory negligence, it is clear that the instructions given were prejudicial, i.e. the jury probably would have returned a different verdict if the faulty instructions had not been given. Davis v. Knippling, 1998 SD 31, ¶ 4, 576 N.W.2d 525, 526-27.

B. Assumption of the Risk

[¶ 16.] In this case the jury made no finding on the issue of assumption of the risk because it found that Kristi was contributorily negligent. However, Instructions 26 and 26A were confusing. Instruction 26 (SD Civil Pattern Jury Instruction 13-01) told the jury the circumstances under which assumption of the risk applied and 26A said that it did not apply to mental patients.

[¶ 17.] In Morrison v. MacNamara, 407 A.2d 555 (D.C.1979) the court said that assumption of the risk is a defense only when the plaintiff possesses full comprehension and appreciation of the danger which will require an analysis of the patient’s age, intelligence and experience. Assumption of the risk is rarely applied in professional negligence cases because of the disparity of knowledge between professionals and their clients. Id. The superior knowledge of the doctor together with the limited ability of the patient to ascertain the risks and dangers negate a critical element, i.e. the knowledge and appreciation of the risk. Id. In a later case, Durphy v. Kaiser Foundation Health Plan, 698 A.2d 459 (D.C.1997), the same court held that a physician’s superior knowledge and expertise and the limited knowledge of the patient concerning the dangers negate the knowledge and appreciation of the risk which are critical elements of that defense.

[¶ 18.] The trial court here should have instructed on assumption of the risk as a defense only if it determined that Kristi possessed full comprehension and appreciation of the danger of injury. This required the court to perform an analysis of her age, intelligence, experience and mental condition.

[¶ 19.] Reversed and remanded.

[¶ 20.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 21.] RUSCH, Circuit Judge, for SABERS, Justice, disqualified.

      . The testimony at trial indicated a factual dispute as to whether her family was ever told of this diagnosis.

      . HSC and Dr. Alsgaard claimed that Kristi was released as a result of her voluntary election to leave. However, that fact was not documented in the manner required by statute and regulations. All of the paperwork supporting that claim was prepared after HSC knew of Kristi's death.

      . The instructions given included:
      Instruction No. 17
      It is the duty of the patient to use such care as a reasonable person would use in similar circumstances. It is the duty of the patient to submit to the treatment prescribed by the physicians and follow the reasonable directions given.
      Instruction No. 23
      Negligence is the failure to use reasonable care. It is the doing of something which a reasonable person would not do, or the failure to do something which a reasonable person would do, under facts similar to those shown by the evidence. The law does not say how a reasonable person would act under facts similar to those shown by evidence. That is for you to decide.
      Instruction No. 24
      Contributory negligence is negligence on the part of a plaintiff which, when combined with the negligence of a defendant, contributes as a legal cause in the bringing about of the injury to the plaintiff.
      Instruction No. 25
      A plaintiff who is contributorily negligent may still recover damages if that contributory negligence is slight or less than slight when compared with the negligence of the defendants.
      In determining this issue you must determine the answer to two questions:
      1. Whether the plaintiff and the defendant are negligent; and
      2. If both are negligent, whether the plaintiff’s negligence is
      (a) “slight” or less than "slight”, or
      (b) more than “slight” in comparison with the Defendant's negligence.
      In answering the second question, you must make a direct comparison between the conduct of the plaintiff and the defendants. If you find the plaintiff's contributory negligence is more than slight when compared with the negligence of the defendants, then the plaintiff is not entitled to recover any damages. If you find the plaintiff's contributory negligence is slight, or less than slight, when compared with the negligence of the defendant, then the plaintiff is entitled to recover damages. However, the plaintiff's damages must be reduced in proportion with the amount of the plaintiff's contributory negligence.
      Instruction No. 26
      If a person assumes the risk of injury, the person is not entitled to any recovery. To support an assumption of the risk defense, the defendants must show:
      1. that the person had actual or constructive knowledge of the existence of the specific risk involved;
      2. that the person appreciated the risk’s character; and
      3. that the person voluntarily accepted the risk, having had the time, knowledge, and experience to make an intelligent choice.
      Instruction No. 26A
      A patient does not assume the risk of negligence or other malpractice on the part of any mental health professional or hospital or mental institution or its staff.
      Instruction No. 30
      Every person has a duty to exercise the ordinary care for his own safety that a reasonable and prudent person would exercise in the same or similar circumstances.

      . No appeal has been taken from that decision. Consequently, Avera McKennan Hospital and Dr. Matthew Stanley are not parties to this appeal.

      . However, a medical practitioner may not argue that a patient’s negligence in sustaining an injury is a defense to a claim of malpractice occurring in the treatment of that injury. Jensen v. Archbishop Bergan Mercy Hospital, 236 Neb. I, 459 N.W.2d 178 (1990). See also Whitehead v. Linkous, 404 So.2d 377 (Fla.Dist.Ct.App.1981) holding that the jury should not have been instructed on contributory negligence when the patient died as a result of malpractice while hospitalized as a result of a suicide attempt.

      . Illustrative of the subjective or capacity based instructions is the one given in De Martini v. Alexander Sanitarium, Inc., 192 Cal.App.2d 442, 13 Cal.Rptr. 564, 567 (1961) where the court instructed on contributory negligence but also gave the following instruction:
      "... Accordingly, if you find from the evidence in this case that at the time of the accident and immediately preceding it the Plaintiff, Thaddeus DeMartini, was in such mental condition that he was likely to harm himself or was not capable of realizing the consequences of his acts or of caring for his own safety, and that the defendant hospital, with knowledge of plaintiff's condition had undertaken to safeguard him and protect him against himself, then I instruct you that as a matter of law the Plaintiff, Thaddeus De Martini, was not guilty of contributory negligence.”
      Other cases suggest that a capacity based instruction could be crafted from the instruction dealing with the negligence of a minor which, in South Dakota, provides "As applied to a minor, ordinary care or skill means that degree of care or skill which would fairly be anticipated in like circumstances from a reasonably prudent minor of the same age, intelligence, maturity, experience, and capacity.” (SD Pattern Instruction (Civil) 10-05).

      . Jason filed a motion in limine to prevent mention of the defenses of contributory negligence and assumption of the risk. That motion was apparently heard by the court on January 5, 2004, but no transcript of that hearing was included in the record on appeal. As a result, we cannot determine what arguments were made at that hearing. Although this comes perilously close to a procedural default on the part of Jason, we conclude that the argument on the motion for directed verdict preserved this issue for appeal.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2005 SD 92
    Benjamin ELLIOTT, Petitioner and Appellant, v. BOARD OF COUNTY COMMISSIONERS OF LAKE COUNTY, South Dakota, Respondent and Appellee, and Lake Madison Development Association, and Larry and Judy Lund, et al., Lake County Residents and Property Owners, Intervenors and Appellees.
    No. 23425.
    Supreme Court of South Dakota.
    Argued April 26, 2005.
    Decided Aug. 17, 2005.
    Brian J. Donahoe of Cutler & Donahoe, LLP, Sioux Falls, South Dakota, Attorneys for petitioner and appellant.
    Chris S. Giles, Lake County State’s Attorney, Madison, South Dakota, Attorneys for respondent and appellee Lake County Board of Commissioners.
    Debra S. Sittig of Myers, Peters, Hoffman, Billion & Pfeiffer, Sioux Falls, South Dakota, Attorneys for intervenors and ap-pellees Lake Madison Development, et al.
   MEIERHENRY, Justice.

[¶ 1.] This appeal is from the trial court’s review of the decision of the Lake County Board of Commissioners to deny a building permit application for a hog confinement facility. The trial court affirmed the denial. Because we question whether the trial court had jurisdiction, we remand to the trial court.

Facts and Procedural Background

[¶ 2.] In early 2001, Benjamin Elliott began plans to construct and operate a hog farrowing facility on his property in Lake County, South Dakota. Lake County Zoning Ordinances required a conditional use permit for all concentrated animal feeding operations of over 500 animal units. Operations for fewer than 500 animal units were permitted without a conditional use permit. Initially, Elliott submitted and the County denied a conditional use permit for a 750-animal unit facility. After the County’s denial, Elliott scaled down his plan. He decided, instead, to construct a high-rise facility which would accommodate fewer than 500 animal units. Since his plan involved fewer than 500 animal units, he was not required to seek a conditional use permit from the County. He did, however, need a building permit for the new building.

[¶ 3.] The Lake County Zoning Officer [Officer] responsible for issuing county building permits acknowledged receipt of Elliott’s completed application for the high-rise building on August 31, 2001. Her handwritten receipt addressed to Elliott on August 31, 2001 stated:

Received from Mr. Elliott complete plan w/all of the items needed to fulfill item #2 in Section 802 — Article VIII of the Lake Co. Zoning Book. This is in regards to the application for “Class E” Animal Confinement Unit.

She also testified at trial that Elliott’s application had met all building permit requirements and that normally she would have issued the permit. She, however, neither approved nor denied his application despite her acknowledgment that it met all the regulatory requirements. Instead, she deferred Elliott’s application to the Lake County Board of Commissioners (Commissioners). She explained that she deferred to the Commissioners (1) because she had reservations about issuing the permit so quickly after the Commissioners’ rejection of Elliott’s similar plan, (2) because she knew that the Commissioners had discussed placing a moratorium on new animal confinement feeding operation permits, and (3) because of a letter from the Lake County State’s Attorney asking her not to issue any additional building permits for the construction and development of animal feeding confinement operations. There is no dispute that she failed to act upon Elliott’s application.

[¶ 4.] On September 4, 2001, the Commissioners placed a moratorium on the issuance of all building permits for new animal confinement operations until they made revisions to the Lake County Comprehensive Zoning Plan. At the same time, the Commissioners tabled Elliott’s building permit application indefinitely. Ten months later in July of 2002, the Commissioners amended the comprehensive zoning plan to require a conditional use permit for all animal confinement operations in Lake County.

[¶ 5.] On September 3, 2002, the Commissioners finally acted upon Elliott’s building permit application. As part of a regularly scheduled county commission meeting, the Commissioners denied his request. The Commissioners’ minutes recorded the decision as follows:

ELLIOTT BLDG PERMIT
Ben Elliott and Brian Donahoe Atty presented testimony for a tabled bldg permit request for an animal confinement. Also present was Chris Giles States Atty. Deb Reinicke Zoning & fifteen concerned citizens. Mr. Elliott presented a video explaining hog confinement operations. Motion Jorgensen, second Johannsen to deny the building permit application for Ben Elliott based on the following reasons: (1) This structure does not appear to be conductive [sic] to the promotion of the overall public health, safety, morals or general welfare (2) the proximity to neighboring residences and to Lake Madison, coupled with the objections from those area residents should be taken into account. Roll call vote: Johannsen aye, Jorgen-sen aye, Vanhove nay, Verhey aye & Leighton aye. 4-1 vote. Motion carried.

The Commissioners consistently represented to Elliott and to the trial court that they had applied the pre-amended ordinances and had only considered Elliott’s request as a request for a building permit. Elliott appealed the Commissioners’ decision to circuit court.

[¶ 6.] Elliott entitled his pleading to circuit court, “Petition Contesting Denial of Building Permit and Notice of Appeal.” The “petition” part of the pleading asked the court for relief under the authority of SDCL 11-2-61 as an appeal from a county board of adjustment. SDCL 11-2-61 provides:

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county, may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment.

Elliott alleged as part of his petition that the Commissioners’ denial of the building permit was unlawful. He alleged as follows:

Respondent [Commissioners]’ denial of Building Permit Application No. 4820 is unlawful in that it:
a. Failed to act on an appeal within a reasonable time as required by SDCL § 11-2-57;
b. Denied Building Permit Application No. 4820 for reasons unsupported by evidence, contrary to evidence presented, and otherwise acting arbitrarily and capriciously;
c. Denied Petitioner due process, equal protection of the laws, privileges and immunities, and other rights under the United States and South Dakota Constitutions, all under the color of state law, in violation of Petitioner’s civil rights;
d. Exceeded the scope of Respondents lawful power to act and was otherwise taken without proper authority under applicable law; and
e. Was otherwise unlawful under SDCL Title 11, Ch. 2 and SDCL Title 7, Ch. 8.

The “appeal” portion of Elliott’s pleading, entitled “Alternative Notice of Appeal,” asked for relief under SDCL 7-8-27 as an appeal from the board of county commissioners. That statute provides:

From all decisions of the board of county commissioners upon matters properly before it, there may be an appeal to the circuit court by any person aggrieved upon filing a bond in the amount of two hundred fifty dollars with one or more sureties to be approved by the county auditor conditioned that the appellant shall prosecute the appeal without delay and pay all costs that he may be adjudged to pay in the circuit court. Such bond shall be executed to the county and may be sued in the name of the county upon breach of any condition therein.

SDCL 7-8-27 (emphasis added). For reasons not obvious from the record, the court proceeded to consider the case under SDCL 7-8-27 and 7-8-30 as a direct appeal from a decision of the board of county commissioners. The trial court conducted a trial de novo and reviewed the Commissioners’ decision under an arbitrary and capricious standard.

[¶ 7.] Ultimately, the trial court affirmed the Commissioners’ decision. The trial court affirmed based in part on its determination that the amended zoning ordinances applied to Elliott’s application rather than the pre-amended ordinances. Under the amended ordinances, the facility would have required a conditional use permit. A conditional use permit required more and different criteria from those required for a building permit. Although the Commissioners conceded they had viewed the application as a building permit application under the pre-amended ordinances, the trial court proceeded to consider Elliott’s application as a conditional use. However, the trial court in the alternative, also affirmed the Commissioners’ decision under the building permit ordinances. The trial court summed up its decision as follows:

The Lake County Commission[ers’] decision to deny Elliott’s request for a building permit was not arbitrary or capricious, but was based upon evidence in the record. The ordinance that should have been applied was the ordinance adopted after the moratorium. However, Elliott was not entitled to the permit under the county ordinances existing at the time of his first application, at the time of his final plans submitted during the moratorium or at the time of the Commission[ers]’ decision. The County Commissioners] applied the pre-mora-torium ordinances, but its ultimate decision denying Elliott’s request for a building permit for a hog confinement unit was correct and is affirmed.

Elliott’s Issues on Appeal

[¶ 8.] Elliott claims on appeal to this Court that the essential legal issue is whether the County acted unlawfully in imposing additional conditions for a building permit beyond those specified by the Lake County Zoning Ordinances. Elliott claims (1) that his building permit application was complete and effective on August 31, 2001, (2) that the pre-amended ordinances and regulations apply to his application, (3) that the Commissioners lacked the discretion to deny his application, and (4) that the trial court erred in retroactively applying conditional use criteria. He argues that the Commissioners were bound by the zoning regulations in place at the time of Elliott’s application. He argues that the Zoning Officer, under Zoning regulation § 802.2, had authority to grant or deny a building permit but did not have discretion to delegate her authority. He argues that the Officer’s act was ministerial. He additionally argues that the Commissioners’ authority, if any, was strictly limited to reviewing his application for the purpose of determining whether the application complied with the standards set forth by Lake County Zoning Regulation § 802.2. He relies on our prior decisions for the proposition that the Commissioners lacked discretion to deny the application. See In re Conditional Use Permit Granted to Van Zanten, 1999 SD 79, ¶ 16, 598 N.W.2d 861, 865; Schrank v. Pennington County Bd. of Comm’rs, 1998 SD 108, ¶ 19, 584 N.W.2d 680, 683; Save Centennial Valley Ass’n., Inc. v. Schultz, 284 N.W.2d 452, 457 (S.D.1979). Neither the Zoning Officer nor the Commissioners, he argues, had discretion to consider factors not contained in the ordinance.

Lake County Zoning Ordinances

[¶ 9.] The Commissioners’ delegation of authority for administering and enforcing building permits is found in Article VIII, § 801 of the Lake County Comprehensive Zoning Regulations. The authority is delegated to the county zoning officer. Section 801 provides:

The provisions of this regulation shall be administered and enforced by a County Zoning Officer appointed by the Board of County Commissioners, who shall have the power to make inspection of building or premises necessary to carry out his duties in the enforcement of this regulation.

Section 802 then identifies the circumstances that require a building permit and describes the information that must be included in a building permit application. Section 802 also defines the authority of the Zoning Officer; it directs as follows:

If the proposed excavation or construction as set forth in the application are in conformity with the provisions of this regulation, and other regulations of the County then in force, the County Zoning Officer shall issue a building permit for such excavation or construction. If a building permit is refused, the County Zoning Officer shall state such refusal in writing, with the cause, and shall immediately thereupon mail notice of such refusal to the applicant at the address indicated upon the application. The County Zoning Officer shall grant or deny the permit within a reasonable time from the date the application is submitted.

Article VI of the Ordinances further specifies that “all questions of interpretation and enforcement shall be first presented to the County Zoning Officer.” Article VI also clearly provides that “such questions” only come “to the County Commission [] on appeal” from the zoning officer’s decision. Article VI is written as follows:

It is the intent of this regulation that all questions of interpretation and enforcement shall be first presented to the County Zoning Officer, and that such questions shall be presented to the County Commission only on appeal from the decision of the administrative official, and that recourse from the decision of the County Commission shall be to the courts as provided by law.

Zoning Appeal Rights and Procedures Under South Dakota Law

[¶ 10.] In 2000, the South Dakota Legislature made revisions to portions of the zoning laws codified in SDCL Chapter 11-2. As part of the revisions, the Legislature implemented major changes in the form and procedure of county zoning appeals. We recognized this new appellate scheme in relation to an appeal from a county board of adjustment in In re Yankton County Commission, 2003 SD 109, ¶¶ 17-18, 670 N.W.2d 34, 39-40. We said, “[w]e believe that the repeal of the prior statutes and the enactment of this new comprehensive appellate scheme expressed legislative intent to completely occupy the field of taking board of adjustment appeals.” Id. ¶ 18, 670 N.W.2d at 40.

[¶ 11.] Under the revised statutory scheme, an appeal from an administrative officer’s decision (for example, a zoning officer) advances to the county board of adjustment then directly into circuit court. SDCL 11-2-55 describes the appeal process from an administrative officer to the board of adjustment. It provides:

Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the county affected by any decision of the administrative officer. The appeal shall be taken within a reasonable time, as provided by the rules of the board of adjustment, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds of the appeal. The officer from whom the appeal is taken shall transmit to the board of adjustment all the papers constituting the record upon which the action appealed from was taken.

Id. (emphasis added).

[¶ 12.] The law requires that the board of adjustment conduct a hearing on the appeal. SDCL 11-2-57. The board of adjustment has the authority to “reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end has all the powers of the officer from whom the appeal is taken.” SDCL 11-2-58. The law further specifies that an appeal from the board of adjustment is taken directly to circuit court. SDCL 11-2-61, 11-2-62; In re Yankton County Comm’n, 2003 SD 109, ¶¶ 17-18, 670 N.W.2d at 39-40. Lake County’s ordinances mirror the statutory appeal procedures.

[¶ 13.] A key element in the 2000 law change is that an appeal to circuit court must be in the form of a petition for a writ of certiorari. SDCL 11-2-62. The petition must be verified and “set[ ] ... forth that the decision [of the board of adjustment] is illegal, in whole or in part, specifying the grounds of the illegality.” SDCL 11-2-61. The statute provides:

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county, may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment.

Id.

Writ of Certiorari — Limited Court Review

[¶ 14.] Since the legislature specified that an appeal to circuit court must be in the form of a petition for a writ of certiorari, the court is limited in its review. The standard of review for a writ of certio-rari “cannot be extended further than to determine whether the ... board ... has regularly pursued the authority of such ... board.... ” SDCL 21-31-8. In applying this standard of. review to a board of adjustment decision, we have recently stated:

Our consideration of a matter presented on certiorari is limited to whether the board of adjustment' had ’ jurisdiction over the matter and whether it pursued in a regular manner the authority conferred upon it. A board’s actions will be sustained unless it did some act forbid- ' d'en by law or neglected to do some act required by law. Certiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding....

Hines v. Board of Adjustment of City of Miller, 2004 SD 13, ¶ 10, 675 N.W.2d 231, 234 (internal quotations and citations omitted). This appellate procedure departs significantly from the trial de novo and arbitrary and capricious standard of review formerly applied to zoning appeals. See Coyote Flats, L.L.C. v. Sanborn County Comm’n, 1999 SD 87, ¶ 7, 596 N.W.2d 347, 349.

Applicable Law and Jurisdictional Questions

[¶ 15.] Against this backdrop, questions arise .concerning the trial court’s jurisdiction in this case. The right to appeal is a creature of statute set by the legislature. We have previously said:

The right to any appeal is statutory and established by the legislature. This court has consistently recognized that the right to an appeal is purely statutory and no appeal may be taken absent statutory authorization. An attempted appeal from which no appeal lies is a nullity and confers no jurisdiction on the court except to dismiss it.

Appeal of Lawrence County, 499 N.W.2d 626, 628 (S.D.1993) (internal citations omitted). We have also said that “[w]hen procedure is prescribed by the legislature for reviewing the action of an administrative body, review may be had only on compliance with such proper conditions as the legislature may have imposed.” Appeal of Heeren Trucking Co., 75 S.D. 329, 330-31, 64 N.W.2d 292, 293 (1954).

[¶ 16.] The legislature has clearly established in SDCL Chapter 11-2 the right of and procedure for appealing county zoning decisions. In this case, the trial court based jurisdiction and review on SDCL 7-8-27 and 7-8-30. We question whether the trial court had authority and jurisdiction under those statutes. Moreover, underlying the trial court’s jurisdictional authority are fundamental questions concerning the authority under which the Commissioners acted — that is, whether the Commissioners acted as the zoning officer, as a board of adjustment, or as a board of county commissioners. Which role the Commissioners assumed when they acted on Elliott’s application becomes significant in judging the legality of the action and the right to appeal. At least one Commissioner, in answer to a question, believed the Commissioners “[were] stepping into [the Zoning Officer’s] shoes.” If the Commissioners were acting as the Zoning Officer, they needed to establish their authority to do so. If the Commissioners acted as a board of adjustment, they only had the powers of a board of adjustment as set forth by SDCL 11-2-53. If they acted as a board of county commissioners, their authority is questionable. On the other hand, jurisdiction depends on the pleadings and prayer for relief. Thus, there may also be a question as to whether Elliott’s pleadings and actions sufficiently preserved his right of appeal or were sufficiently drafted to establish jurisdiction in circuit court.

[¶ 17.] Although jurisdictional questions were not raised below or on appeal, we have consistently held that questions of jurisdiction can be raised at any time and sua sponte by this Court. Pennington County v. State ex rel. Unified Judicial System, 2002 SD 31, ¶ 9, 641 N.W.2d 127, 130. “It is the rule in this state that jurisdiction must affirmatively appear from the record and this court is required sua sponte to take note of jurisdictional deficiencies, whether presented by the parties or not.” State v. Phipps, 406 N.W.2d 146, 148 (S.D.1987) (citation omitted); see also Decker ex rel. Decker v. Tschetter Hutterian Brethren, Inc., 1999 SD 62, ¶ 14, 594 N.W.2d 357, 362; Deno v. Oveson, 307 N.W.2d 862, 863 (S.D.1981). We have directed that “[t]he test for determining jurisdiction is ordinarily the nature of the case, as made by the complaint, and the relief sought.” Phipps, 406 N.W.2d at 148 (citation omitted).

Remand

[¶ 18.] Because we have raised a jurisdictional issue sua sponte on appeal, the parties have not had an opportunity to brief or to argue the issue; nor has the trial court had an opportunity to consider it in the first instance. For this reason, we remand the case to circuit court. On remand, the trial court must first determine whether it has jurisdiction. If so, the court should proceed to consider the appeal under the appropriate law and procedure. If not, the matter should be dismissed.

[¶ 19.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, and MILLER, Retired Justice, concur.

[¶ 20.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

      . Animal units are defined in the ordinance “as equivalent number of a species to equal 500, 1,000 and 2,000 animal units.” For example, 500 animal units of "Feeder or Slaughter Cattle” equal 500 head (an equivalent ratio of 1 to 1); 500 animal units of "Finisher Swine” (over 55 lbs) equal 1,250 head of inventory (an equivalent ratio of 0.4 to 1); 500 "Nursery Swine” (less than 55 lbs) equal 5,000 head (an equivalent ratio of 0.1 to 1); 500 animal units "Farrow-to-Finish (sows)” equal 135 head of inventory (an equivalent ratio of 3.7 to 1); 500 animal units "Swine Production Unit (Sows, Breeding, Gestating & Farrowing)" equal 1,064 head (an equivalent ratio of 0.47 to 1).

      . The record before us does not reflect whether Elliott challenged the Commissioners’ legal authority to issue a moratorium or to table his application for almost a year without action or whether he sought to compel the Zoning Officer to act. Paragraph 5 in his pleadings makes reference to another action concerning this matter. It states: "Petitioner appealed the failure of the Zoning Officer to act on the building permit, and commenced legal action in the Circuit Court for the Third Judicial Circuit, Case No. Civ. 01-159.”

      . The trial court on its own decided that the amended ordinances should apply to the application. On appeal to this Court, the parties briefed the issue of whether the trial court’s application of the amended ordinance was error. In light of our remand of this matter, we do not address this issue.

      . Under the statutes, the board of county commissioners is either required to appoint a board of adjustment, SDCL 11-2-49, or in lieu thereof "having adopted and in effect a zoning ordinance may act as and perform all the duties and exercise the powers of the board of adjustment.” SDCL 11-2-60. The relevant statutes provide:
      SDCL 11-2-49. Except as otherwise provided by § 11-2-60, the board shall provide for the appointment of a board of adjustment, or for the planning and zoning commission to act as a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this chapter, shall provide that the board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances to the terms of the ordinance.
      SDCL 11-2-60. In lieu of appointing the board of adjustment provided by § 11-2-49, the board of counly commissioners having adopted and in effect a zoning ordinance may act as and perform all the duties and exercise the powers of the board of adjustment. The chair of the board of county commissioners is chair of the board of adjustment as so composed. The concurring vote of at least two-thirds of the members of the board as so composed is necessary to reverse any order, requirement, decision, or determination of any administrative official, or to decide in favor of the appellant on any matter upon which it is required to pass under any zoning ordinance, or to effect any variation in the ordinance.

      . The law was amended both in 2003 and 2004. The 2004 version mirrors the version originally passed in 2000 and therefore is applicable to this case.

      . Section 501(1) of the ordinances provide that "[t]he County Commission shall act as the Board of Adjustment.” Section 502 sets forth the process of an appeal as follows:
      Appeals to the County commission may be taken by any person aggrieved or by an officer, department, board or bureau of the County of city/town, affected by any decision of the administrative officer. Such appeals shall be taken within a reasonable time, as provided by the rules of the County Commission by filing with the officer from whom the appeal is taken and with the County Commission a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the county Commission all the papers constituting the record upon which the action appealed from was taken.
      Section 503 specifies the power of the board of adjustment as follows:
      Power and Jurisdiction Relating to Administrative Review. The County Board of Adjustment shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official or agency based on or made in the enforcement of any zoning regulation or any regulation relating to the location or structures or to interpret any map.
      Section 504 specifies that the power "to hear and decide” conditional use requests lies with the board of adjustment and outlines the procedure for submitting a request.

      . The law allows the board of county commissioners ”[i]n lieu of appointing the board of adjustment provided by § 11-2-49, ... [to] act as and perform all the duties and exercise the powers of the board of adjustment.” SDCL 11-2-60.


author: STREIT, Justice.

text:
    Julie DeVall McELROY, Appellee, v. STATE of Iowa and Iowa State University of Science and Technology, Appellants.
    No. 03-1476.
    Supreme Court of Iowa.
    June 17, 2005.
    Rehearing Denied Sept. 22, 2005.

      Thomas J. Miller, Attorney General, and George A. Carroll, Assistant Attorney General, for appellants.
    Paige Fiedler of Fiedler, Townsend & Newkirk, P.L.C., Johnston, and Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, for appellee.
   STREIT, Justice.

This court is hip deep in issues. Together the parties in this sexual harassment case have appealed the district court’s rulings on nearly thirty grounds. Because the plaintiff failed to exhaust her administrative remedies on her retaliation-in-employment claim, we reverse and remand for a new trial. At that trial, the plaintiff shall have the right to have her state law claims tried to a jury.

I. Facts and Prior Proceedings

In 1994, Julie McElroy enrolled as a graduate student in the doctoral program at the Iowa State University College of Education. Lynn Glass, a male professor in the College, was McElroy’s academic advisor. ISU also hired McElroy to work as a research assistant for Glass. Glass taught at least one of McElroy’s classes.

Glass repeatedly subjected McElroy to unwelcome touching and grossly inappropriate comments. The harassment reached its zenith (or nadir) in April 1995 when ISU sent McElroy to Russia to help Glass run a month-long cultural and educational exchange program for high school students.

Upon arrival at their hotel in Russia, McElroy discovered Glass had arranged for them to share a two-room suite — with both beds in one room. McElroy told Glass she was uncomfortable with the sleeping arrangements and insisted one of the beds be moved to the other room. Glass became furious but eventually relented.

Glass later publicly berated McElroy for not letting him “take care” of her on their first night at the hotel. He told her she could “kiss her Ph.D. good-bye.” While the two were riding the Moscow Metro, he threatened to leave her alone and let her find her way home. This was particularly troublesome because Glass had taken McElroy’s passport and money “for safekeeping” after they had deplaned.

At other times on the trip, Glass gave McElroy a massage after she told him not to do so; rubbed lotion on her feet against her will in a manner that evoked images of sexual intercourse; told her intimate details about his sex life, including a disgustingly detailed description of his semen; kissed her after she told him not to touch her; and ran suddenly into her room and told her he had just “messed himself.” We need not repeat all the salacious facts here; nonetheless we remain fully cognizant of them.

Shortly after returning home from Russia, McElroy made a sexual harassment complaint to Ann Thompson, a department chair in the College. Thompson notified Noreen Daly, Dean of the College. For the most part, Glass fessed up to his actions. Thompson removed Glass from his position as McElroy’s academic advisor and instructor. Thompson also reassigned McElroy to work as a graduate assistant for another professor. Thompson and Daly told Glass to have no contact with McElroy.

Glass continued to pester McElroy. In June 1995, McElroy filed a formal complaint with the ISU Affirmative Action Office. McElroy was frustrated that ISU was not taking adequate steps to stop Glass from harassing her. She also voiced concern that ISU would retaliate against her. ISU appointed an attorney, Jeanne Johnson, to investigate.

Johnson concluded Glass had violated ISU’s sexual harassment policy, created a hostile work environment, and interfered with McElroy’s academic progress. Johnson recommended ISU eliminate interaction between Glass and McElroy, conduct sexual harassment training, and suspend Glass without pay for one semester. Dean Daly adopted Johnson’s recommendations but increased the term of the suspension to one year. ISU’s president tried to fire Glass, but dropped the formal proceedings necessary to dismiss a tenured faculty member after Glass was diagnosed with terminal colon cancer. Glass died in May 1997.

In November 1997, McElroy sued the State of Iowa and ISU (the defendants) for sexual harassment in employment and education, in violation of various federal and state statutes. McElroy maintained the defendants did not adequately address Glass’s behavior. Instead of protecting her from Glass when she complained, McElroy alleged the defendants retaliated by changing the terms of her employment. McElroy claimed she suffered psychologically and physically as a result. She dropped out of the graduate program on December 31, 1997.

McElroy initially lost at trial, but we reversed on account of a confusing jury instruction. See generally McElroy v. State, 637 N.W.2d 488 (Iowa 2001) [McElroy I]. On remand, McElroy won. A jury awarded her over $3 million in damages on her federal claims, including approximately $2.5 million for emotional distress. Although the court also found a violation of state law, it ruled most of her state law damages were subsumed within her federal law damages. The defendants appealed and McElroy cross-appealed. We consolidated all appeals.

Additional facts will be set forth below. We first consider the appeal issues, then the cross-appeal issues.

II. The Merits: The Appeal

The defendants ostensibly raise nine issues for our review on appeal, but some of these have as many as eleven sub-issues. We examine these arguments in turn, to the extent necessary.

A. Scope of Retrial

The defendants contend the district court erred when it granted a retrial of all the issues in the case. The defendants posit McElroy I only required retrial of McElroy’s employment discrimination claim because the erroneous jury instruction involved solely that claim. They argue employment discrimination is distinct from retaliation and education discrimination. The parties agree our review is for errors at law.

The general rule is that when a new trial is granted, all issues must be retried. See, e.g., Hawkeye Bank v. State, 515 N.W.2d 348, 353 (Iowa 1994); Sauer v. Scott, 176 N.W.2d 140, 147 (Iowa 1970); Larimer v. Platte, 243 Iowa 1167, 1175-76, 53 N.W.2d 262, 267 (1952); Woodward v. Horst, 10 Iowa 120, 123 (1859); see also 5 C.J.S. Appeal & Error § 947 (1993).

[T]he granting of partial new trials is a practice not to be commended.As a condition to the granting of a partial new trial, it should appear that the issue to be tried is distinct and separable from the other issues, and that the new trial can be had without danger of complications with other matters.... Nor may [only] certain issues be retried unless it appears that the other issues have been rightly settled and injustice will not be occasioned.

Larimer, 243 Iowa at 1176-77, 53 N.W.2d at 267-68 (citations and internal quotations omitted); accord Woodward, 10 Iowa at 123 (holding partial retrial warranted if convenient, nonprejudicial, and “not attended with too much confusion”). On occasion we have limited retrial to certain issues, but when we have done so we have said so. See, e.g., Dailey v. Holiday Distrib. Corp., 260 Iowa 859, 877, 151 N.W.2d 477, 489 (1967); McCarville v. Ream, 247 Iowa 1, 10-14, 72 N.W.2d 476, 481-83 (1955); Woodward, 10 Iowa at 124.

We did not limit the scope of the retrial in McElroy I. The record before us shows McElroy requested retrial of all claims in that appeal. Finding reversible error with respect to one of those claims, we ordered a new trial. McElroy I, 637 N.W.2d at 502. We did so without qualification. Id.

B. Exhaustion of Administrative Remedies

In the district court, the defendants objected to the trial of McElroy’s retaliation claims because she had not exhausted her administrative remedies. Specifically, the defendants claimed McElroy had only notified the Equal Employment Opportunity Commission (EEOC) and Iowa Civil Rights Commission (ICRC) about her federal and state sex discrimination claims, not her retaliation claims. We consider the federal and state claims separately.

1. Title VII

Title VII explicitly prohibits both sex discrimination and retaliation. See 42 U.S.C. § 2000e et seq.

However, Title VII establishes an administrative procedure which a complaining employee must follow.... Exhaustion of administrative remedies is central to Title VII’s statutory scheme because it provides the [administrative agency] the first opportunity to investigate discriminatory practices and enables it to perform its roles of obtaining voluntary compliance and promoting conciliatory efforts.

Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.1994) (citations omitted). Exhaustion of administrative remedies under Title VII requires a claimant to give notice of all claims in the initial administrative complaint. Stuart v. Gen. Motors Corp., 217 F.3d 621, 630-31 (8th Cir.2000).

McElroy filed her complaint with the ICRC on March 14, 1997. (The same complaint was cross-filed with the EEOC). She used the standard form, which requires complainants to identify the bases of their harassment claims by checking the applicable boxes. McElroy checked the box labeled “sex” but not the “retaliation” box. When the ICRC asked McElroy to state in narrative fashion why she felt she was discriminated against, McElroy described Glass’s continuing harassment. Although she indicated the defendants were not adequately addressing this ongoing harassment, she did not describe any acts of retaliation. Indeed, the reviewing officer specifically noted that “the only issue is whether [the defendants] took reasonable measures to stop the harassment and keep [McElroy] from working in a hostile environment.” Because McElroy did not allege retaliation, she therefore failed to exhaust her Title VII remedies with respect to alleged retaliation-in-employment. See Williams, 21 F.3d at 222-23 (arriving at similar conclusion on analogous facts; holding plaintiff not entitled to pursue sexual discrimination claim because she did not check “sex” box and confined her narrative discussion to retaliation).

It is true the administrative complaint must be construed liberally to further the remedial purpose of the civil rights laws. Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 886-87 (8th Cir.1998). For this reason, in spite of the foregoing discussion “[a] plaintiff will be deemed to have exhausted administrative remedies as to allegations contained in a judicial complaint that are like or reasonably related to the substance of charges timely brought before [the administrative agency].” Williams, 21 F.3d at 222. Allegations that are not so related must be dismissed, however, because allowing a plaintiff to pursue them in court would circumvent the statutory scheme which requires the use of administrative proceedings. See Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1025 (8th Cir.2004).

Although at first glance one might think sex discrimination and attendant retaliation are “reasonably related,” “it is well established that retaliation claims are not reasonably related to underlying discrimination claims.” Wallin v. Minn. Dep’t of Corrections, 153 F.3d 681, 688 (8th Cir.1998); see also Duncan, 371 F.3d at 1025; Russell v. TG Missouri Corp., 340 F.3d 735, 747-48 (8th Cir.2003); Graham v. Bryce Corp., 348 F.Supp.2d 1038, 1042 (E.D.Ark.2004); Nichols v. ABB DE, Inc., 324 F.Supp.2d 1036, 1045 (E.D.Mo.2004); Price v. Harrah’s Maryland Heights Operating Co., 117 F.Supp.2d 919, 922 (E.D.Mo.2000); Fry v. Holmes Freight Lines, Inc., 72 F.Supp.2d 1074, 1079 (W.D.Mo.1999). An exception, however, applies when the retaliation alleged in the subsequent lawsuit was clearly the result of the filing of the administrative complaint. See Wallin, 153 F.3d at 689; accord Wentz v. Maryland Cas. Co., 869 F.2d 1153, 1154 (8th Cir.1989) (retaliation claim could be considered because it “grew out of the discrimination charge” the plaintiff filed). The timing of the retaliation is crucial in this analysis: if the alleged retaliation began before the filing of the administrative complaint, a subsequent suit for retaliation that was not brought to the attention of the administrative agency is barred. See Wallin, 153 F.3d at 689.

At trial, the thrust of McElroy’s retaliation claim centered around the fact that after she complained to the ISU Affirmative Action Office, in 1996 she was demoted from a temporary instructor to a graduate assistant. (The former position paid significantly more and did not require McElroy to take classes.) She also alleged her letters-of-intent were delayed. Because McElroy did not file her complaint with the ICRC until March 1997 and did not allege retaliation in it even though the alleged retaliation had begun the year before, the district court should not have allowed a Title YII retaliation claim based on the prior allegations. See Williams, 21 F.3d at 222-23 (arriving at same conclusion on similar facts); see also Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 760 (8th Cir.2004) (finding failure to exhaust administrative remedies where complainant did not check retaliation box and did not allege any facts in complaint to administrative agency to show retaliation); Duncan, 371 F.3d at 1025-26 (similar to Williams and holding same); Watson v. O’Neill, 365 F.3d 609, 614 (8th Cir.2004) (similar); Russell, 340 F.3d at 748 (holding plaintiff failed to exhaust administrative remedies as to retaliation claim because retaliation began before administrative charge was filed and therefore could not be said to “grow out of’ it); Graham, 348 F.Supp.2d at 1042 (similar); Nichols, 324 F.Supp.2d at 1045; Price, 117 F.Supp.2d at 922; Fry, 72 F.Supp.2d at 1079.

2. ICRA

Although the authorities cited in the foregoing analysis only apply to McEl-roy’s Title VII claim, we think — at least on the arguments presented in this case — that the same analysis should be applied to McElroy’s retaliation claim brought under the ICRA. Because the ICRA is in part modeled after Title VII, we have traditionally looked to federal law for guidance in interpreting it. Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003). McElroy has not argued that we should apply a different analysis to the ICRA. Therefore we decline to forge new ground in the absence of briefing. See Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6 (Iowa 2004) (“[I]t is prudent to delay any consideration of whether a different analysis is appropriate to a case in which this issue was thoroughly briefed and explored.”); see also Pecenka, 672 N.W.2d at 803 (noting that despite consistent utilization of the federal analytical framework, Iowa courts are not bound by federal law in interpreting the ICRA).

3. Disposition

Because the district court erroneously allowed a Title VII retaliation-in-employment claim, we are obliged to reverse and remand for a new trial on all issues. Although the jury also found the defendants had violated Title VII for discrimination-in-employment, the special verdict form did not distinguish damages for retaliation; instead it lumped all damages together. We are unable therefore to divine which damages should be attributed to which acts.

C. Remaining Appeal Issues

The defendants also argue the district court erred in a number of other respects, including eleven allegedly faulty jury instructions. Because we have already decided a new trial is necessary, we do not reach these other issues. We pause briefly to consider one of the jury instructions because it is likely to arise again on retrial. See McElroy I, 637 N.W.2d at 501-02 (similarly considering evidentiary matters); see also Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 184-85 (Iowa 2004); Greenwood v. Mitchell, 621 N.W.2d 200, 207-08 (Iowa 2001).

Instruction No. 40

Instruction No. 40 stated that “[a]ny damages awarded to the plaintiff are treated as taxable income.” It is uncertain how the jury was to use this instruction. In Stover v. Lakeland Square Owners Ass’n, 434 N.W.2d 866, 871 (Iowa 1989), we affirmed the district court’s refusal to give an instruction that pointed out that a personal-injury award was not taxable. Although Stover is not precisely on point, its reasoning applies with equal force in this case. We stated:

[T]he drawbacks of such an instruction seem to outweigh its benefits. Especially here, where the parties offered no evidence concerning taxation at trial, the possibility for confusion, speculation, and conjecture would be great.

Stover, 434 N.W.2d at 871. Likewise, in the ease at bar the parties did not offer any evidence concerning the taxable consequences of an award. The jury was left to speculate. One can only imagine the questions the members of the jury might ask:

Should we up our award to McElroy because her award is taxable? How much in taxes would McElroy have to pay? What tax bracket does she fall in? Don’t her lawyers get a cut? What do we do?

This is precisely what we were concerned about in Stover, when we declined to open a “Pandora’s Box” of cautionary instructions to the jury. Id. The risk of confusion, speculation, and conjecture is simply too great. See id. Not only do such instructions invite speculation, but they also unduly draw attention to a collateral consequence of a jury award and thereby constitute an unfair comment. See id,; see also Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000) (noting reversal warranted “when the trial court’s instruction materially misstates the law, confuses or misleads the jury, or is unduly emphasized”). The tax consequences instruction should not be given.

III. The Merits: The Cross-Appeal

McElroy raises a number of issues on cross-appeal, but we choose to address only one because it alone will undoubtedly reoccur on remand and involves an issue of substantial public importance. Cf. McElroy I, 637 N.W.2d at 501-02 (considering evidentiary issues). McElroy urges us to overrule Smith v. ADM Feed Corp., 456 N.W.2d 378 (Iowa 1990), and hold plaintiffs under the ICRA are entitled to have their claims tried to a jury of their peers.

A. Smith

In Smith, a sharply divided court held there was no right to. a jury trial under the ICRA. The case at bar apparently presents the first opportunity to reexamine Smith. Two plaintiffs have asked the court of appeals to “overrule” Smith, but understandably that court has declined to tinker with our precedents. Reiss v. ICI Seeds, Inc., 548 N.W.2d 170, 175 (Iowa Ct.App.1996); Ramirez v. Iowa Dep’t of Transp., 546 N.W.2d 629, 632 (Iowa Ct.App.1996).

In its statutory analysis, the majority in Smith concluded the district court in an ICRA action “sits as the [ICRC] and is empowered only to grant that relief authorized” by the ICRA. 456 N.W.2d at 381. The majority stressed the administrative nature of the ICRA framework and concluded that affording a jury trial in district court “would substantially interfere with a statutory scheme which delegates to the court only that limited power held by the commission.” Id. Concerned that ruling to the contrary would result in a time consuming process which would place “a greater emphasis ... on a money recovery over other available relief,” the majority concluded the statute should not be interpreted to afford litigants a jury trial. Id. The majority also noted that the statute itself did not say whether a jury trial was afforded, and considered this silence as evidence the legislature did not intend a jury trial. Id. at 380-81.

B. Examination of Smith

On further examination, we conclude the majority’s statutory analysis in Smith was fundamentally flawed and must be overruled. As four members of this court pointed out in Smith, the majority erred when it concluded the ICRA framework was administrative in nature:

The district court does not sit as a civil rights commission; it does not screen cases as does the commission; it does not investigate cases like the commission; nor does a court hear cases under the commission’s rules. When the legislature sought to provide a partial answer to the backlog of undisposed claims before the civil rights commission, it did so by providing an alternative to the administrative proceeding in the form of an ordinary civil action.

Id. at 387-88 (Carter, J., dissenting) (emphasis in original). While it is true the ICRA generally requires plaintiffs to exhaust their administrative remedies, there is nothing extraordinary about the nature of a district court proceeding brought once those remedies are so exhausted. The ICRA is no different than any other statute providing a cause of action. The ICRA has always permitted a plaintiff to sue for monetary damages in the district court. For this reason, it is not surprising the legislature did not expressly indicate claimants were entitled to a jury trial under the ICRA- — -it was assumed.

Far from “substantially interferefing] with [the] statutory scheme,” interpreting the ICRA framework as written would alleviate the problems that have arisen since Smith was decided. In Smith, the dissent pointed out that denying the right to a jury trial on ICRA claims would not only run contrary to legislative intent, but would also prove infelicitous because plaintiffs bringing several different causes of action would have some of them tried by a jury, with others tried to the court. Id. at 388. Fifteen years later, the dissent’s prophesy has come true.

Further problems have arisen. Shortly after Smith was decided, Congress passed legislation that granted litigants the right to a jury trial under Title VII. See 42 U.S.C. § 1981. Subsequently, the Eighth Circuit ruled it was not bound to our pronouncement in Smith. See Pickens v. Soo Line R.R., 264 F.3d 773, 779 (8th Cir.2001). Federal district courts in Iowa have ruled litigants have a right to a jury trial on their ICRA claims in federal court. See, e.g., Bales v. Wal-Mart Stores, Inc., 972 F.Supp. 483, 490 (S.D.Iowa 1997) (concluding “[t]he ICRA authorizes actual damages, as well as equitable remedies” and granting jury trial on ICRA claim). As McElroy points out, this has resulted in the odd situation that plaintiffs bringing ICRA claims in federal court may receive a jury trial, but those in state court will not. This has only further compounded the problems the dissent foretold.

In truth, there is only one reason to uphold Smith today — stare decisis. “From the very beginnings of this court, we have guarded the venerable doctrine of stare decisis and required the highest possible showing that a precedent should be overruled before taking such a step.” Kiesau v. Bantz, 686 N.W.2d 164, 180 n. 1 (Iowa 2004) (Cady, J., dissenting) (citing, in part, Hildreth v. Tomlinson, 2 Greene 360, 361 (Iowa 1849)). We do not overturn our precedents lightly and will not do so absent a showing the prior decision was clearly erroneous. See, e.g., Kersten Co. v. Dep’t of Soc. Servs., 207 N.W.2d 117, 121 (Iowa 1973); Doolittle v. Shelton, 1 Greene 272, 273 (Iowa 1848); accord Miller v. Westfield Ins. Co., 606 N.W.2d 301, 306 (Iowa 2000) (“when error is manifest”); Cover v. Craemer, 258 Iowa 29, 35, 137 N.W.2d 595, 599 (1965) (“palpably wrong”); Stuart v. Pilgrim, 247 Iowa 709, 714, 74 N.W.2d 212, 216 (1956) (“only for the most cogent reasons”); Lammars v. Chi. Great W. R.R., 162 Iowa 211, 215, 143 N.W. 1097, 1098 (1913) (“weighty and sufficient reasons”). This is especially true in this case because we often infer legislative assent to our precedents from prolonged legislative silence. See, e.g., State v. Anderson, 517 N.W.2d 208, 215 (Iowa 1994); Gen. Mortgage Corp. v. Campbell, 258 Iowa 143, 152, 138 N.W.2d 416, 421 (1965). These principles are not absolute, however.

“[S]tare decisis does not prevent the court from reconsidering, repairing, correcting or abandoning past judicial announcements when error is manifest, including error in the interpretation of statutory enactments.” Miller, 606 N.W.2d at 306. Stare decisis “should not be invoked to maintain a clearly erroneous result.” Id. (quoting Kersten, 207 N.W.2d at 121).

[W]hen a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment.

Benjamin N. Cardozo, The Nature of the Judicial Process 150 (1921); see, e.g., State v. Liddell, 672 N.W.2d 805, 813 (Iowa 2003). As for the legislative-assent-from-silence argument, it should be noted that the majority in Smith ignored this very principle. The dissent in Smith correctly noted that in several cases before that case was decided claimants were afforded a jury trial under the ICRA. Indeed, historically Iowans were afforded the right to a jury trial under previous civil rights statutes. Smith, 456 N.W.2d at 388 (Carter, J., dissenting) (citing Ayala v. Center Line, Inc., 415 N.W.2d 603 (Iowa 1987); Annear v. State, 454 N.W.2d 869 (Iowa 1990)). Rather than attempt to divine legislative intent in this fashion, we must remember that legislation sometimes persists on account of “inattention and default rather than by any conscious and collective decision.” Ronald Dworkin, Law’s Empire 319 (1986).

For all the foregoing reasons, we overrule Smith and hold a plaintiff seeking money damages under the ICRA is entitled to a jury trial.

IV. Disposition

McElroy failed to exhaust her administrative remedies with respect to her federal and state retaliation-in-employment claims. Therefore these claims were not properly before the district court. Because the jury returned a general verdict, a new trial is required on all surviving claims. On remand, the plaintiff shall have the right to have her entire case tried to a jury.

REVERSED AND REMANDED.

All justices concur except WIGGINS, J., who takes no part.

      . The form states the retaliation box applies if the complainant thinks the discrimination occurred "[b]ecause I filed a prior complaint or opposed a discriminatory practice."

      . A recent United States Supreme Court decision buttresses our conclusion, and may even render the "reasonably related” exception obsolete. In National Railroad Passenger Corp. v. Morgan, which the parties do not discuss, the Court concluded that each discrete retaliatory action constitutes its own unlawful employment practice for which administrative remedies must be exhausted. 536 U.S. 101, 110-113, 122 S.Ct. 2061, 2070-72, 153 L.Ed.2d 106, 120-22 (2002); see also Farmland Foods, Inc. v. Dubuque Human Rights Comm’n, 672 N.W.2d 733, 741 (Iowa 2003) (discussing Morgan and applying it to the ICRC continuing violation doctrine). At least one federal circuit court of appeals has abandoned the "reasonably related” exception after Morgan. See Annett v. Univ. of Kansas, 371 F.3d 1233, 1238 (10th Cir.2004).

      . As an aside, we note that Lynch v. City of Des Moines, 454 N.W.2d 827 (Iowa 1990), is inapposite to the case at bar. In Lynch we held, consistent with federal authority, that a retaliation claim based upon retaliatory conduct that began shortly after the filing of a sex discrimination complaint with the ICRC was properly before the district court. 454 N.W.2d at 833. But see Reiss v. ICI Seeds, Inc., 548 N.W.2d 170, 173-74 (Iowa Ct.App.1996) (deviating, sub silentio, from federal analysis and holding plaintiff exhausted administrative remedies under the ICRA with respect to sex discrimination claim even though she only presented retaliation claim to the ICRC because they had common elements and were therefore necessarily "reasonably related”; in Reiss the court of appeals did not address or discuss the long line of Title VII cases holding to the contrary).

      . The foregoing discussion of exhaustion of administrative remedies only applies to McEl-roy’s allegations of retaliation-in-employment in violation of Title VII and the ICRA. Title IX claimants are not required to exhaust the Title VII administrative scheme. Cannon v. Univ. of Chicago, 441 U.S. 677, 706-08 n. 41, 99 S.Ct. 1946, 1962-63 n. 41, 60 L.Ed.2d 560, 581-82 n. 41 (1979); see also Frederick v. Simpson Coll., 160 F.Supp.2d 1033, 1035 (S.D. Iowa 2001) ("Cannon ... made clear that private suits to enforce Title IX can be brought without exhausting administrative remedies.”).

      . So far as we can tell, the Supreme Court has not ruled to the contrary with respect to Title VII claims. It is true that in Norfolk W. Ry. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), the Supreme Court held it was reversible error for the trial court in a FELA case to refuse a defendant's instruction that an award would not be taxable. (In Stover, we expressly declined to follow Norfolk as a matter of state law.) With respect to Title VII, however, Norfolk is distinguishable. The policy behind issuing such an instruction on the taxable consequences of a FELA award in Norfolk is not present here.
      In Norfolk, the Supreme Court was concerned that juries likely presumed awards were taxable and might therefore overcompensate plaintiffs unless an instruction was given that an award would not be taxable. Here, however, McElroy apparently seeks a windfall by encouraging the jury to return an award that negates her tax obligations. There is no announced Congressional policy that a plaintiff should be compensated at such a level so as to relieve her of her tax burden; indeed, federal policy as currently reflected in federal tax law expressly points to the contrary. Not only does the instruction in this case imper-missibly cause the jury to speculate about possible tax consequences, but it also unduly draws attention to a fact in order to prod the jury to make an award contrary to legislative intent.

      . Any analogy in Smith to a pre-jury trial Title VII is not only outdated, but also mistaken. As the dissent pointed out, unlike the ICRA, Smith was decided at the time Title VII only granted equitable relief.

      . This dichotomy is not unique to Iowa, however. See DiCentes v. Michaud, 719 A.2d 509, 513 n. 6 (Me.1998) (noting state and federal courts in Maine, Iowa, Missouri, and Pennsylvania are so split). But see State ex rel. Diehl v. O’Malley, 95 S.W.3d 82 (Mo.2003) (overruling prior precedent and granting right to jury trial under state constitution and thereby ending the split with federal courts in Missouri).