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Schlumbohm v. City of Sioux Falls6/13/2001
that the Board abused its discretion by admitting this evidence. Prior unrelated disciplinary action may be relevant when determining if the discipline was arbitrary or motivated by improper reasons. In Jager v. Ramon Bd. of Educ., 444 NW2d 21, 26 (SD 1989), comparative evidence was utilized to establish if the discipline imposed was arbitrary and capricious. Evidence that an individual "was treated more harshly than other individuals" is a relevant consideration. Id. This rationale has been applied to law enforcement officers as well. See Vukovich v. Civil Service Comm'n, 832 P2d 1126, 1128 (Colo App 1992) (upholding disciplinary action because the comparative evidence was sufficiently distinguishable to support the discipline imposed).
[ .] 3. WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT THE CITY FAILED TO PRESERVE FOR APPEAL ITS ARGUMENT THAT THE BOARD IMPROPERLY ORDERED REINSTATEMENT TO A POSITION THAT DID NOT EXIST.
[ .] The circuit court determined, and City concedes, that this issue had not been presented to the Board. The City maintains, that in this instance, our rule requiring an argument to be raised below before it is heard on appeal should be forgiven.
[ .] We have often stated:
An issue may not be presented for a first time on appeal. The appellant must affirmatively establish a record on appeal that shows the existence of error. He [or she] must show that the trial court was given an opportunity to correct the grievance he [or she] complains about on appeal. Husky Spray Service, Inc. v. Patzer, 471 NW2d 146, 153-54 (SD 1991) (quoting Cooper v. Cooper, 299 NW2d 798, 800 (SD 1980) (citations omitted) (alterations in original)).
" e will not review a matter on appeal unless proper objection was made before the trial court. Objections must be made to the trial court to allow it to correct its mistakes." Id. at 154 (quoting Johnson v. John Deere Co., 306 NW2d 231, 239 (SD 1981) (citations omitted)). "Since our function is that of review, issues not presented to the trial court are not before us on appeal." Id. (quoting Chipperfield v. Woessner, 166 NW2d 727,730 (SD 1969)).
[ .] The trial court found that the proper procedure would have been for the City to present this issue to the Board. Therefore, the City's failure constituted waiver of this issue on appeal. City asserts this procedural bar is inapplicable because the Board has no method for raising post-trial hearings and no evidence of positions available had been presented to the Board. In the future, we suggest a motion to the Board before a party asserts that it was barred from challenging the propriety of the order.
[ .] Therefore, we affirm the circuit court in all respects and need not address Schlumbohm's assertion of error.
[ .] MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.
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