2 New SD Supreme Court Decisions Today

The SD Supreme Court handed down two decisions this morning: 1) Brother who is not attorney is not entitled to perfect appeal; 2) Modification of Support Upheld; Summaries follow: DANIELSON v. LIFESCAPE, 2025 S.D. 56: Brother of disabled adult was also a court-appointed guardian. Defendant, “LifeScape, a service provider for adults with developmental disabilities terminated its services for [his sister.]” The Hearing Examiner and DHS affirmed the termination. Brother attempted to file an appeal to circuit court, but the appeal was dismissed because Brother is not a licensed attorney and refused to secure representation. Thereafter, Brother filed an appeal to the SD Supreme Court. This decision dismisses the appeal effort, with the Court’s opinion stating: [¶9.] [Brother] filed the notice of appeal on [Sister's] behalf. Because he may not represent her in court proceedings, the notice of appeal he filed was ineffective to invoke this Court’s appellate jurisdiction. See Stevens v. Jas A. Smith Lumber Co., 54 S.D. 170, 222 N.W. 665, 666 (1929) (“Proceedings in a suit by a person not entitled to practice are a nullity.”). Consequently, the appeal is dismissed. This is a 2+2-0 decision. Chief Justice Jensen did not participate. The Court’s opinion is authored by Justice Myren (with Justice Salter in agreement). Justice Kern filed a concurring opinion, in which Justice DeVaney agreed, stating: [¶16.] In my view, depending on the circumstances of the case, particularly those involving appellants who may not be competent to file a notice of appeal on their own behalf, this Court could exercise its discretion to allow such appellants to proceed with a timely-filed appeal so long as they obtain legal counsel to represent them and file the briefs going forward. But here, it is clear from the underlying record that [Brother] was already given a reasonable opportunity to obtain legal counsel to represent [Sister] in this matter but was unable to do so. Thus, I agree that we must dismiss this appeal. PEERY v. PEERY, 2025 S.D. 57: A high-income earning H agreed to pay alimony/child support in the amount of $19,250 per month until the marital home was sold, then to pay $13,500 per month for a period of 6 years then to be reduced to $7,000 per month for another 9 years. At H’s request, the trial court modified the alimony by lowering the amount from $13,500 to $6,000 per month, without altering the duration. Although recognizing it had authority, under SDCL 25-7-7.3, to retroactively modify during the interim time (after filing and notice of hearing), the trial court elected not to do so. The trial court also declined to hold H in contempt, as requested by W. The SD Supreme Court affirmed all aspects of the lower court’s ruling. The Court’s opinion is authored by Justice Myren. All five Justices agree with this result. Justice Salter filed a separate concurring opinion expressing his view as to why H’s “voluntary reduction in income can properly serve as a basis to modify his support obligation” in this situation. These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

1 new decision by SD Supreme Court

The SD Supreme Court handed down 1 new decision this morning. Summary is set forth below. 1) LWOP Sentence and Underlying Conviction Reversed and Remanded for New Trial; Summary follows: STATE v. BORDEAUX, 2025 S.D. 55: Defendant “was convicted by a Pennington County jury of first-degree murder for shooting his girlfriend [and] was sentenced to life imprisonment without the possibility of parole.” Along the way, “the [trial] court allowed other act evidence stemming from a prior aggravated assault [Defendant] committed against a different victim to be presented to the jury.” The SD Supreme Court Reversed and Remanded for New Trial. The Court holds that the “other act evidence” was improperly admitted into evidence. All five Justices agree that the trial court acted improperly in allowing the evidence. The Court’s opinion as to Part I (improper admission into evidence) is authored by Justice DeVaney. The Court’s opinion as to Part II (issue of prejudice) is authored by Chief Justice Jensen (with Justices Salter and Myren concurring). Justices Kern and DeVaney dissent on the issue of whether the improper evidence was prejudicial as to the jury verdict, through an opinion authored by Justice DeVaney. This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

two decisions by SD Supreme Court today

The SD Supreme Court handed down two decisions this morning: 1) McCook Lake Canal issue resolved; 2) Criminal Expungement Vacated; Summaries follows: MCCOOK LAKE RECREATION AREA v. DAKOTA BAY, LLC, ET AL., 2025 S.D. 53: This decision resolves a consolidation of cases which involve an effort to connect a canal with McCook Lake (and change the shoreline thereof). The dispute and proceedings below are described in the first two paragraphs of the Court’s opinion. The Final Resolution of Affirmance is described in the final paragraph of the Court’s opinion, which is also set forth below: First two ¶s: [¶1.] Dakota Bay, LLC, owns a number of lots adjacent to McCook Lake in Union County. Michael Chicoine, the owner of Dakota Bay, planned to construct an 1,800-foot-long, 110-foot-wide canal extending across his property to connect to the southeast corner of McCook Lake. To begin this project, Chicoine first applied to South Dakota Game Fish and Parks (GF&P) for a shoreline alteration permit. After consultation with GF&P, Chicoine applied for a permit to appropriate water from an existing irrigation well on his property (the well permit) to initially fill and maintain the water level in the canal which would be lined with an 18-inch fat clay liner. After learning of Chicoine’s plans, the McCook Lake Recreation Area Association (Association) filed a petition with the South Dakota Department of Agriculture and Natural Resources (DANR) Water Management Board (Board) seeking a declaratory ruling that Chicoine and Dakota Bay must apply for and obtain a permit to appropriate water from McCook Lake before obtaining a shoreline alteration permit. The Association also opposed Dakota Bay’s application for the well permit. [¶2.] After a hearing, the Board granted Chicoine/Dakota Bay’s well permit application and denied the Association’s petition for declaratory ruling. The Association appealed both decisions to the circuit court and the court issued a memorandum opinion affirming the Board’s decisions. The Association appealed and during oral argument before this Court, the parties agreed that the cases should now be consolidated. We agree and render a consolidated opinion. Concluding ¶ (the decision): [¶71.] We conclude that the circuit court properly affirmed the Board’s denial of the Association’s petition for declaratory ruling seeking a declaration that the alteration of the shoreline of McCook Lake to construct a canal requires a permit to appropriate water from McCook Lake. The Board correctly concluded that the proposed construction of the canal will not result in an appropriation of water from McCook Lake and appropriately denied the Association’s petition on that basis. Additionally, we affirm the circuit court’s ruling that the Board did not err by finding that Dakota Bay’s proposed use of water from the irrigation well is a beneficial use in the public interest. We also affirm the circuit court’s ruling that the Board did not abuse its discretion by quashing the Association’s subpoenas but hold that the procedure for issuing subpoenas in administrative proceedings is governed by the APA, rather than the rules of civil procedure. This ruling is unanimous (5-0), with the Court’s opinion authored by Justice Kern. Circuit Judge Mowery sat on this case, in lieu of Chief Justice Jensen. RECORD EXPUNGEMENT OF JONES, 2025 S.D. 54: Criminal Defendant, who was charged with Murder but was found “not guilty” by jury, sought an expungement of the records relating to his arrest and trial. The trial court granted the expungement, over the objection of the State. State brought this appeal. The SD Supreme Court reversed and vacated the order of expungement, holding that “there was no evidence offered to show that an expungement of the records of his arrest and court proceeding would serve the public’s best interest or the ends of justice” as required by SDCL 23A-3-30. Footnote 1 of the Opinions states: The record of the criminal prosecution (06CRI20-000022) contains a video recording of the events leading up to Schumacher’s shooting, although there is no audio. It also depicts the two gunshots Jones fired. With respect to the second shot, the video shows Jones pointing his gun, with a laser, at Schumacher while Schumacher is lying on the ground obviously severely injured, before firing the second shot. This ruling is unanimous (5-0), with opinion authored by Justice DeVaney. Circuit Judge Clapper sat on this case, in lieu of Justice Myren. These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

County Assessment of Wetlands Overturned

The SD Supreme Court handed down one decision this morning, holding, inter alia: 1) Roberts County Assessment of wetlands Overturned Summary follows: (NOTE: This case was submitted, on briefs, to the Court less than a month ago, on August 26, 2025) PALLANSCH, ET AL. v. ROBERTS COUNTY, 2025 S.D. 52: This is a dispute over the tax assessment of some 150 acres of land that is burdened by a “federal government perpetual wetland reserve easements that significantly limit the agricultural use of the land.” The landowner contends that the Roberts County Board of Assessment over-valued the land to such a degree that it violated the Constitutional Protection, under the South Dakota Constitution, S.D. Const. art. XI, § 2 ("the valuation of property for taxation purposes shall never exceed the actual value thereof."). Both The Office of Hearing Examiners and the Circuit Court upheld the Roberts County Director of Equalization. The SD Supreme Court reversed and remanded, stating: [¶27.] The ALJ did not make a factual finding as to the actual value of the property based on the evidence presented at that hearing. The entry of such a finding was a necessary part of its adjudicatory role. This “actual value” finding is needed to determine the actual value for constitutional purposes. The circuit court’s order of affirmance is reversed. The case is remanded to the circuit court with direction to remand to the ALJ to make a finding as to actual value based on the evidence already presented. After the ALJ issues a new decision, either party may appeal through ordinary means. This decision is unanimous (5-0) with opinion authored by Justice Myren. This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Parent v Non-Parents Custody Dispute

 The SD Supreme Court handed down 1 new decision this morning. Summary is set forth below. 1) Parent prevails over Non-Parents in custody dispute; Summary follows: MELIUS v. SONGER, 2025 S.D. 51: This is an extended and bitter custody dispute between the child’s biological father and the child’s uncle (mother’s brother) and aunt. The trial court awarded primary custody to Father, but also awarded visitation rights to Uncle and Aunt. The resolution of this appeal generated 35 pages of opinions. The Court affirmed the award of primary custody to Father, but reversed the award of visitation rights to Uncle and Aunt. The Court’s Opinion is authored by Justice Myren. Justice Kern dissents on the issue of visitation rights, indicating that she would affirm those rights as afforded to Uncle and Aunt. The trial court’s assessment of attorney fees of $3,992.59 against Father was reversed and remanded for recalculation. Chief Justice Jensen dissented on the attorney fee disposition, indicating that the full award should remain intact. This decision provides an extensive analysis of the rules regarding “parent v non-parent” custody decision-making and also a discussion of the possible application of the the Indian Child Welfare Act (ICWA). Justices Salter and DeVaney fully agreed with Justice Myren’s Opinion. This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Three Reversals by SD Supreme Court

The SD Supreme Court handed down three decisions this morning: 1) Error to dismiss drug charges; 2) Error to grant Summary Judgement for City of Spearfish; 3) Error to rule for Dakota State University. Summaries follows: STATE v. BRADSHAW, 2025 S.D. 48: Trial Court dismissed criminal drug charges against Defendant based upon “unnecessary delay” in accordance with SDCL 23A-44-3. State appeals. The SD Supreme Court reversed, stating: [¶19.] This record does not support the circuit court’s determination that the prosecution was unnecessarily delayed. The reasons cited by the circuit court do not support the exercise of its discretion under SDCL 23A-44-3. This ruling is unanimous (5-0), with Opinion authored by Justice Myren. MAHMOUDI v. CITY OF SPEARFISH, 2025 S.D. 49: Plaintiff sued City for personal injuries which she sustained when she “stepped onto a metal culvert installed by the City.” Plaintiff pursued three theories: 1) nuisance; 2) negligence; and 3) recklessness (gross negligence). The trial court granted the City Summary Judgment on all claims. The SD Supreme Court reversed and remanded on Plaintiff’s negligence claim. The Court’s opinion is authored by Chief Justice Jensen. All 5 Justices voted to reverse and remand. Justice Kern filed a concurring opinion. The Court's opinion runs 18 pages, ¶¶ 1 - 43. Justice Kern's opinion runs 14 pages, ¶¶44 - 65. S.D. BOARD OF REGENTS v. MADISON HOUSING, 2025 S.D. 50: This litigation arises as a result of a construction dispute between DSU (Dakota State University) and the Madison Housing Commission, relating to the construction of “two eight-plex apartment buildings.” Litigation was instituted by DSU as a Declaratory Judgment Action. The trial court ruled for DSU. The SD Supreme Court reversed and remanded, holding: [¶58.] We reverse the court’s entry of partial summary judgment in favor of DSU on the above two issues relating to the reserve account and buy-out provision, and vacate the final judgment and order entered by the court. We remand for further proceedings consistent with this opinion, including the entry of partial summary judgment in favor of the Commission on the first two issues. This ruling is unanimous (5-0), with opinion by Justice DeVaney. These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Three New Decisions by SD Supreme Court

The SD Supreme Court handed down three decisions this morning: 1) State Health Lab Report Upheld; 2) Civil Penalties of $2,000 and attorney fee award of $2,000 upheld against Mother who willfully disobeyed Visitation Order; 3) Summary Judgment involving (alleged) sale of goods Reversed and Remanded, but Request for Change of Judge Denied. Summaries follows: STATE v. ANDERSON, 2025 S.D. 45: Defendant was found asleep in his vehicle at 3 AM in a parking area adjacent to a storage facility. After blood and urine testing, the State Charged the Defendant with 3 counts (“(1) driving under the influence; (2) an alternative count for driving or being in physical control of a motor vehicle while under the influence; and (3) unauthorized ingestion of a controlled substance”). The Jury convicted Defendant of Counts 2 & 3, but found him not guilty of “driving under the influence.” Defendant’s appeal is focused primarily on evidentiary issues related to the “state health lab’s test results.” The SD Supreme Court rejected his assertions and affirmed. This is a unanimous (5-0) ruling, with opinion authored by Justice Myren. LEFORS v. LEFORS, 2025 S.D. 46: This an action by Father against Mother for alleged willful violations of a Visitation Order. Invoking SDCL 25-4A-5, the trial court imposed a “$500 civil penalty for each of the four failed visits for a total of $2,000,” on Mother and also awarded Father $2,000 for attorney’s fees. The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Chief Justice Jensen. Father’s request for appellate attorney fees was denied. ANDERSON INDUSTRIES v. THERMAL INTELLIGENCE, 2025 S.D. 47: This is a suit by a Seller for the sale of goods to Buyer, a Canadian Corporation. The resolution of this dispute involves application of the UCC, “implicating Article 2 of the UCC, which is codified within SDCL chapter 57A-2.” The trial court granted summary judgment for Plaintiff Seller. The SD Supreme Court reversed and remanded for the resolution of “questions of material fact regarding breach.” This ruling is unanimous (5-0), with opinion authored by Justice Salter. Interestingly, the successful appellant requested that the Supreme Court assign this case to a different trial judge in the event of success on appeal. The SD Supreme Court rejected that request in note 10, stating, “This request is unfounded and based upon nothing more than the existence of an adverse decision, as counsel confirmed at oral argument.” These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .