[¶ 13.] Groff then requested an intermediate appeal from the circuit court's determination, which we granted.
ISSUE[¶ 14.] Whether the circuit court erred in determining there is probable cause to support a claim of sexual harassment.
W.2d 85 (1974)).[¶ 21.] The Brown test applies when the question whether a new rule or principle of law resulting from a Supreme Court interpretation of a statute should be applied retroactively. During most of this period, she worked primarily with Groff, who was the Pennington County State's Attorney.[¶ 3.] In July 1994, Erdahl filed a charge of discrimination with the Division of Human Rights, pursuant to SDCL 20-13-10, alleging that Groff engaged in unwelcome sexual conduct which was used as a basis for employment decisions (quid pro quo) and which altered the conditions of her employment (hostile work environment).[¶ 4.] Division investigated Erdahl's complaint in accordance with SDCL 20-13-28. Ed.2d 49 (1986).[¶ 6.] The investigator concluded there was a sexual relationship between Groff and Erdahl, but that it was voluntary, and that “[a] preponderance of the evidence indicates that Erdahl welcomed Groff's behavior towards her and was not offended.” (emphasis original).[¶ 7.] Erdahl also claimed she terminated the sexual relationship some time at the end of April 1994, and that Groff retaliated by taking work away from her, ignoring her, and moving her desk. Conclusions of law and mixed questions of law and fact are fully reviewable. Eiesland of Quinn, Eiesland, Day & Barker, Rapid City, for charging party and appellee. [¶ 1.] This discretionary appeal is from an order issued by the circuit court reversing a decision of the South Dakota Department of Commerce, Division of Human Rights, and remanding the case to the Division for further proceedings. FACTS AND PROCEDURAL HISTORY[¶ 2.] Kristine Erdahl (Erdahl) alleges sexual harassment by Dennis Groff (Groff) when she worked as an intern and paralegal in the Pennington County State's Attorney's office from October 1993 to May 20, 1994. There was no adversarial hearing at this stage of the proceedings, and witnesses were not cross-examined. The investigator concluded her claims in this regard were “shallow at best.” Division adopted the investigator's report and Erdahl's complaint was dismissed.
The record was reviewed under the standard set forth in SDCL 20-13-28.1, which, at the time of the investigation, provided: If the Division of Human Rights determines there is no probable cause to support the allegations of a charge after an investigation of the charge in accordance with § 20-13-28, the division shall issue an order dismissing the charge. She appealed to the circuit court.[¶ 8.] The circuit judge held the Division erred as a matter of law in applying a “preponderance of the evidence” standard, reasoning that a probable cause determination under SDCL 20-13-28.1 dictated a lower threshold of proof requirement. We believe statutes delineating standards of proof, because they affect the substantive rights of litigants in general, are substantive in nature, and therefore should not be applied retroactively.