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Trial Witness's Posting of Birthday Greeting on Judge's Facebook Page Was Not a Ground for Judge's Recusal

Friday, September 9, 2011

Onnen v. Sioux Falls Independent School District #49-5, No. 25683, 2011 SD 45 (Aug. 3, 2011) The Supreme Court of South Dakota held that the posting of a birthday greeting on a trial judge's Facebook page by a witness was not a prohibited ex parte communication warranting recusal of the judge because the post did not concern a pending or impending proceeding.

Termination of Plaintiff's Employment

As explained by the court, plaintiff Matt Onnen was a registrar employed by Southeast Technical Institute, a public educational institution in Sioux Falls, South Dakota. As registrar, Onnen was responsible for ensuring that students met all graduation requirements before they received a degree. However, school district officials learned that several students had received degrees from the Institute even though they had not satisfied all graduation requirements. The district investigated the matter and determined that 28 students had received degrees despite having failed to meet the requirements. Moreover, between 40 and 50 students who should have received degrees or diplomas had not received them. In addition, more than 250 students had not been verified for graduation—a task which Onnen should have completed months earlier. Based upon these facts, the school district terminated Onnen's employment, and the Sioux Falls School Board affirmed that decision.

Earlier Proceedings

Onnen appealed the decision of the school district and the board to the Circuit Court of the Second Judicial District of Minnehaha County. He argued that he had been wrongfully terminated and that the procedure followed by the school district in terminating his employment was illegal. Circuit Judge William J. Srstka held a three-day trial and affirmed the decision, finding that the school district's action was neither arbitrary nor capricious, nor an abuse of discretion. Onnen moved for a new trial and for Judge Srstka’s recusal from hearing the motion for a new trial. Presiding Judge Kathleen Caldwell heard the recusal motion and found that it had no merit. Subsequently, Judge Srstka heard the motion for a new trial and denied the motion. Onnen then appealed to the South Dakota Supreme Court.

No Error in Trial Court's Finding That Termination for Cause Was Supported by Evidence

On appeal, the state supreme court held that the circuit court did not err in upholding the school district's termination of Onnen's employment. The court observed that Onnen's employment contract permitted the district to terminate his employment for cause and required him "to devote his utmost skill to the performance of the duties to be assigned by the District . . . and in all respects to faithfully comply with, obey and enforce all of the policies, rules and regulations of the District." Onnen at

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