City Park in Spearfish, subject of litigation

The SD Supreme Court handed down 1 new decision this morning. Summary is set forth below. 1) City of Spearfish dealt a blow in dispute over asserted public roadway across city park., Summary follows: TURGEON v. CITY OF SPEARFISH, 2026 S.D. 22: Landowners in Spearfish claim they need access across the Thone Stone Monument property owned by City of Sturgis and operated as a City Park. Landowners claim that the road on this park property provides their only access to the real estate. Landowners filed suit for a Declaratory Judgment that the park road was a road which had been dedicated to the public, relying, inter alia, on a plat which was recorded in 2012 which stated that the road was dedicated to the public. The City was using a locked gate across the road to block access. The trial court granted summary judgment for the City, holding that the 2012 plat language had never been officially accepted by the City. The trial court rejected landowners arguments that the City had expressly accepted the dedication and, alternatively that the City had implicitly accepted the dedication, stating: [¶40.] However, in determining whether there was an implied acceptance of the dedication, the circuit court failed to consider logical inferences from the facts and the court inappropriately weighed the competing evidence regarding this issue. We, therefore, reverse the circuit court’s decision granting the City’s motion for summary judgment and remand the case for trial on the question of whether there was an implied acceptance of the 2012 dedication by the City. The matter is reversed and remanded for trial on the issue of implied acceptance. This decision is unanimous (5-0), with opinion authored by Retired Justice Kern. NOTE: Information about this historical Monument is provided In ¶3 of the opinion, as follows: “The Thoen Stone was discovered on Lookout Mountain in 1887. It recounts the story of gold prospectors who traveled to the Black Hills in search of gold in 1834, forty years before the Black Hills Gold Rush. A replica of the Thoen Stone, the Thoen Stone Monument, now sits at the end of St. Joe Street in Spearfish and is accessible via the Road.” And in footnote 1 of the opinion as follows: “Although not contained in the record, the following information is of significant historical interest. The stone slab, dated 1834, recounts the story of Ezra Kind and his companions who traveled to the Black Hills in search of gold. The marker calls into question the date of the first discovery of gold in the Black Hills, which was previously thought to be 1874 after the Custer Expedition and the subsequent gold rush. The stone, which was buried several feet below the surface, was discovered in 1887 by Louis Thoen on Lookout Mountain in Spearfish. The original stone is located in the Adams Museum and House in Deadwood. The replica sits above Spearfish at the end of the Thoen Stone Road east of town.” This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Grand Theft and Conspiracy Convictions Reversed

The SD Supreme Court handed down 1 new decision this morning. Summary is set forth below. 1) Convictions for Grand Theft and Conspiracy Reversed Summary follows: STATE v. SPRY, 2026 S.D. 21: Husband and Wife (H & W) were charged with handling matters for Uncle, by virtue of a Power of Attorney. After Uncle died intestate, H & W transferred funds from a joint bank account (for all three) into their separate account. This criminal prosecution was institute at the urging of an attorney for “concerned relatives.” After a 3-day Jury trial in Bon Homme County, H & W were both convicted of some misdemeanor charges but also convicted of Grand Theft and Conspiracy to Commit Grand Theft. In ruling on joint appeals, the SD Supreme Court reversed and remanded the Grand Theft and Conspiracy to Commit Grand Theft convictions. The reversal is based upon evidentiary error and error in the jury instructions, as stated by the Court: [¶45.] [T]he court erred by not admitting Way’s [Susan Was was an agent of H & W who witnessed Uncle’s execution of documents] testimony of [Uncle’s] contemporaneous out-of-court statements under SDCL 19-19-803(3). We further conclude that the circuit court erred when instructing the jury on the burden of proof the State must meet to rebut the presumption that [Uncle] intended the [H & W] to have rights of survivorship with respect to the funds remaining in the joint bank account. Accordingly, we reverse the grand theft and conspiracy to commit grand theft convictions and remand for further proceedings. This decision is unanimous (5-0) by the Court, with opinion authored by Justice Kern. NOTE: Relatives also sued H & W in federal court in a civil action which prompted a decision by the SD Supreme Court in Matter of Certification of Question of Law from United States District Court, District of South Dakota, 2022 S.D. 60, 981 N.W.2d 325. NOTE also: The successful attorney in this case is former student John Hinrichs who also served as Magistrate Judge in the 2nd Circuit for 9 years, 2006-2017. Congratulations John! This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Inmate's misconduct results in 2 more years to term of imprisonment

The SD Supreme Court handed down 1 new decision this morning. Summary is set forth below. 1) Inmate’s misconduct adds 2 years to his term of imprisonment Summary follows: STATE v. WARFIELD, 2026 S.D. 20: Incident occurred at Mike Durfee State Prison in Springfield. Inmate was charged with two counts of assault and 1 count of intentional damage to property. Video surveillance was used as part of the State’s evidence, but there was an issue as to its completeness. Jury convicted inmate of 1 count of assault and of intentional damage to property. Inmate was acquitted on other count of assault. The trial court sentenced Inmate to 2 years to run consecutive to his other sentences and ordered restitution and court costs. The SD Supreme Court affirmed. This decision is unanimous (5-0), with opinion authored by Justice Gusinski. This case was submitted on the briefs 5 weeks, 2 days ago. This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Four new Decisions by SD Supreme Court today

The SD Supreme Court handed down 4 decisions this morning: 1) hearsay phone call to police permissible as cumulative/corrobative; 2) immunity from civil assault found in self-defense statute; 3) Six appeals (consolidated) from Meade and Lawrence County result in affirmance of prison sentences; 4) convictions for failure to appear and assault affirmed, rejecting jurisdictional challenge related to Indian Country issue. Summaries follow: STATE v. CLIFFORD, 2026 S.D. 16: Following a family dispute April 6, 2023, Defendant took a drive, resulting in his arrest. Thereafter he was convicted by jury of “aggravated eluding, reckless driving, driving under suspension, and failing to stop at a stop sign.” As part of its case, the State introduced evidence of a phone call to the police alerting as to Defendant being on the roadway. Defendant asserts on appeal that this evidence was inadmissible hearsay. The SD Supreme Court rejected this argument and affirmed, holding that the phone call evidence was “merely cumulative or corroborative of other evidence that was independently and properly admitted.” This decision is unanimous (5-0), with opinion authored by Justice Kern. ANDERSON v. STREETER, 2026 S.D. 17: Defendant shot Plaintiff in the chest. Grand Jury considered the facts, but failed to indict. Plaintiff filed this Civil Suit for Assault. The trial court ruled for Defendant holding that he was immune from civil liability because he acted in self-defense, pursuant to SDCL 22-18-4.8 (which grants immunity from both criminal prosecution and civil liability). Plaintiff appeals. The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Justice Myrne. Circuit Judge Klinger on this case, in lieu of Justice Gusinsky who had served as the trial judge. Defendant requested appellate attorney fees, but the Court denied the request, noting that attorney fees were awardable by the trial court under to SDCL 22-18-4.8 and, therefore, also awardable on appeal. But, the Court denied the request because Defendant had “not submitted a motion or a ‘verified, itemized statement of legal services rendered,’ as required by SDCL 15-26A-87.3(1).” STATE v. WARE, 2026 S.D. 18: Defendant, whose “criminal history is extensive,” entered guilty pleas to three felony charges in Lawrence County, as well as to a felony charge in Meade County. He was sentenced to prison, with the Meade County sentence to run consecutive to the Lawrence County sentence. The SD Supreme Court consolidated six (6) differnt appeals by the Defendant, but grants no relief to Defendant, affirming the lower courts. The Court’s ruling is unanimous (5-0), with opinion authored by Justice Gusinsky. STATE v. WINCKLER, 2026 S.D. 19: Defendant was convicted by Jury of “failing to appear for a pretrial conference at the Charles Mix County courthouse,” and also entered a guilty plea to “a separate, unrelated criminal matter, the crime of simple assault after an altercation with another inmate at the Charles Mix County jail.” Defendant appeals both proceedings. Defendant argues, inter alia, a jurisdictional issue, “alleg[ing] that the Charles Mix County courthouse and jail are situated in Indian country, thus depriving the State of subject matter jurisdiction over [him], an enrolled member of the Yankton Sioux Tribe.” The SD Supreme Court disposes of both appeals with this decision. The Court affirms in both, and rejects the jurisdictional argument. The Court also affirming on other issues raised. The Court’s opinion is authored by Justice Gusinsky. All five justices agree on the result. Justice Salter filed a concurring opinion, casting doubt on the reliability of existing precedent (Bruguier v. Class, 1999 S.D. 122, 599 N.W.2d 364) in regard to the jurisdictional analysis. These decisions may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Four New Decisions Today

The SD Supreme Court handed down 4 decisionsthis morning: 1) transgender woman denied amended birthcertificate; 2)  doctrine of judicial estoppel endsone part of family dispute over land; 3) DOT employees shielded from law suit;   4) Rule 11 sanctions availableagainst client.    Summaries follow: AMENDED BIRTH CERTIFICATE OF NIELSEN, 2026 S.D.12: Transgender woman sought to amend official birth certificate, so as “to change the sex designation from male to femaleto reflect her current gender identity.”  The trialcourt denied relief.  The SD Supreme Courtaffirmed the denial of relief.  All fivejustices voted to affirm.  The Court’s opinionis authored by Justice DeVaney.  JusticeSalter filed a concurring opinion in which he specifically endorses a concurringopinion by U.S. Supreme Court Justice Alita in a recent decision, [UnitedStates v. Skrmetti, 605 U.S. 495, 559 (2025)].  Chief Justice Jensen endorsed Justice Salter’sconcurring opinion (endorsing Justice Alito). Newly appointed Justice Gusinsky did not participate in this case.    BRYANT v. BRYANT, 2026 S.D. 13: Two brothers areinvolved in litigation against each other and also their mother. The Father isdeceased and divorced from the Mother prior to his death.  The trial court held that the brothers heldtitle jointly, but that Mother’s claim is barred by judicialestoppel.  Noting that a partitionaction involving the brothers is still pending, Mother appeals under SDCL15-6-54(b).  The SD Supreme Court acceptedthe appeal and affirmed.  This decisionis unanimous (5-0), with opinion authored by Chief Justice Jensen. This casewas submitted to the Court less than a month ago, on January 10, 2026.  ESTATE OF SANBORN v. PETERSON, ET AL, 2026 S.D.14: Two girls died in a motor vehicle accident on SD Highway 218.  Claiming that “that the fatal accident resulted from the DOTemployees’ negligent failure to maintain and repair the adjacent gravelshoulder in compliance with governing standards,” Mother of the girls filed suitagainst six DOT employees.  The trialcourt granted summary judgment for Defendants on the basis of the “public duty doctrine.”  The SD Supreme Court affirmed but did so onthe basis of “sovereign immunity,” not “public duty.” The SDSupreme Court’s opinion is authored by Justice Salter, with two Justices infull agreement. Chief Justice Jensen filed a brief  concurring opinion.  Retired Justice Kern filed a dissenting opinionin which she asserts the duty imposed on Defendants is a “ministerial duty,” not a “discretionary duty.” Justice Kern’s dissent containscolor photographs depicting an unacceptable drop-off of up to 7 inches in theshoulder.     DISSOLUTION OF HEALY RANCH, INC., 2026 S.D. 15: This litigation is seeminglynever-ending.  In this chapter, the issueis a $240,000 sanction imposed on a litigant under Rule 11.  The SD Supreme Court reverses and “remand[s]for a hearing and reconsideration of the various types of sanctions, and if amonetary sanction is imposed, a determination that includes Bret’s ability topay the monetary sanction.” This is a 3-2 decision, with the Court’s opinion authoredby Retired Justice Kern.  Justice Salterfiles a concurring opinion expressing the belief that monetary sanctions, whilepermissible against an attorney representing a client, are not permissibleagainst a client/litigant only.  Justice DeVaneyconcurs with Justice Salter.  NOTE: TheLitigant perfected his appeal in this matter pro se.  These decisions may be accessed at   http://ujs.sd.gov/Supreme_Court/opinions.aspx .  

Minor committed to DOC for terroristic threat at Edgemont School

The SD Supreme Court handed down 1 new decision this morning. Summary is set forth below. 1) Terroristic Threat at school warrants commitment of minor to DOC, Summary follows: INTEREST OF J.A.D., III, 2026 S.D. 11: Student at Edgemont School threatened to go home, get a gun and “threatened to shoot a school counselor, other students, and himself.” Brave and wise Special Ed teacher (my words here) sought to help the student when he wanted to leave school, interviewed the student, and then took action and called 911, resulting in a “soft lockdown” and intervention by law enforcement. In a juvenile delinquency proceeding, the State charged the student with “(1) aggravated assault; (2) simple assault; and (3) making a terrorist threat.” The trial court found that the State did not establish (1) aggravated assault, but that the State did establish (2) simple assault and (3) terroristic threat. Trial Court committed the Student to DOC. Student appealed. The SD Supreme Court vacated the (2) simple assault adjudication, but affirmed the (3) terroristic threat adjudication. The Court also affirmed that trial court’s decision to commit the student to DOC. The Court’s opinion is authored by Justice Myren, with 3 other justices in full agreement. Justice Salter filed a separate opinion in which he expresses the view that the (2) simply assault adjudication should also be upheld. This decision may be accessed at http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Three new Decisions today by SD Supreme Court

TheSD Supreme Court handed down three decisions this morning: 1) compensable damages, condemnationaction; 2) calculation of restitution reversed;  3) Trial court’s award of Rule11 sanctions reversed.   Summariesfollow:  DEP'TOF TRANSPORTATION v. GUSTAFSON, 2026 S.D. 8: This suit addresses the question of exactly what is compensable in acondemnation action.  The property inquestion is around one of the most well-known intersections in South Dakota –I-29 and 41st Street in Sioux Falls. After a determination and payment “compensation for the fair value of the parts of their propertytaken for a permanent easement and a temporary construction easement.” Actual construction associatedwith this project, “also provided for theclosure of the 41st Street and Carolyn Avenue intersection, which eliminatedthe shortest indirect access route to the [landowners'] property from 41stStreet.”  Landowners sought additional compensation forthis “loss of access.”  The State said no.  The trial court held that, “that the closure of this intersectionsubstantially impaired their right of access, and that they sustained an injurypeculiar to their property.”  In a split decision (3-2) among the Justices,the Supreme Court reversed.  The Court’sdecision, (which runs 38 pages and 58 ¶ s), is authored by Justice DeVaney,with Chief Justice Jensen and Justice Salter in full agreement.  Retired Justice Kern filed a dissenting opinion,agreed to by Justice Myren. The Dissent would, “affirm the circuitcourt’s order and remand for entry of the stipulated award of $1,329,389, plusinterests and costs, for a total of $1,510,901.”   STATEv. JANES, 2026 S.D. 9: Defendant appeals his conviction for child abuse or crueltyof a minor, his stepchild.  On appealDefendant raises 4 issues related to Evidentiary rulings, in addition to abusein sentencing and the determination of restitution.  He also raises ineffective assistance of counsel.The SD Supreme Court rejects all of Defendant’s arguments, except for thecalculation of restitution related to “the children’s counseling expenses” and remanded for re-evaluation.The Court’s decision is unanimous (5-0) with opinion authored by Chief JusticeJensen.   WELLSFARGO v. MYERS, 2026 S.D. 10:  This is adebt collection action against “Mary Myers.”  There are at least two individuals withthe name “Mary Myers.” The Sheriff served “Mary 2,” not “Mary 1” who would have beenthe correct party.  Attorney for Mary 2contacted Plaintiff’s counsel seeking a dismissal.  When the dismissal was not forthcoming, Mary2 sought rule 11 sanctions which the trial judge awarded in the amount of “$3,662.93 [for Mary 2’s] attorney fees.”  The SD Supreme Court reversed findingthat “conduct was notsanctionable under [the] Rule.”  (The opinion contains a detailed recitationof the relevant events.)  The Court’sdecision is unanimous, with opinion authored by Justice Myren.  Justice Salter filed a concurring opinion.   Thesedecisions may be accessed at  http://ujs.sd.gov/Supreme_Court/opinions.aspx .