The SD Supreme Court handed down two decisions this morning, holding inter alia:
1) Feed lot litigation reversed and remanded;
2) State prevails on intermediate appeal (motions to suppress);
3) Divorce decree and contempt proceeding affirmed, with appellate
attorney fees assessed against pro se Wife
Summaries follow:
POWERS v. TURNER CNTY., 2020 S.D. 60: This litigation arises out of a proposed feed
lot in Turner County. This 1st
paragraph describes the posture of this litigation and appeal, as follows:
[¶1.] After
the Turner County Board of Adjustment approved an application for the
construction and operation of a concentrated animal feeding operation, two
landowners appealed the decision by petitioning the circuit court for a writ of
certiorari under SDCL 11-2-61. On cross-motions for summary judgment, the
circuit court dismissed the petitioners’ appeal, concluding that they failed to
show they were persons aggrieved and, thus, lacked standing to appeal under
SDCL 11-2-61. We reverse and remand.
Paragraph 23 provides the SD Supreme Court’s analysis which
resulted in reversal, as follows:
[¶23.] From
our review of the evidence viewed in a light most favorable to the Petitioners,
we conclude that the Petitioners have set forth sufficient specific facts to
show “a personal and pecuniary loss not suffered by taxpayers in general,
falling upon [a petitioner] in [an] individual capacity, and not merely in
[the] capacity as a taxpayer and member of the body politic of the county[.]”
See Cable, 2009 S.D. 59, ¶ 26, 769 N.W.2d at 827 (quoting Barnum,
53 S.D. 47, 220 N.W. at 137–38). First, unlike the plaintiff in Cable, the
Petitioners did not rest upon mere allegations and legal argument. See,
e.g., id. ¶¶ 34, 39. They substantiated their allegations with expert
opinions rather than relying on mere speculation, conjecture, or fantasy.
Second, although the Schmeichels argue that the Right to Farm Covenant
establishes that the Petitioners’ alleged inconveniences and discomforts are
not personal or unique, namely because they are similarly suffered by other
residents of the county, the Petitioners offered evidence in support of their
allegation that the proposed CAFO will injure them beyond the inconveniences
and discomforts related in the Covenant.
This decision is unanimous, with opinion authored by Justice
DeVaney.
STATE v. OSTBY & OLMSTED, 2020 S.D. 61: Felony drug charges
were filed against co-habitants in Deadwood.
The trial court sustained Motions to Suppress relating to evidence
seized pursuant to a search warrant, on the basis of alleged defects in the
affidavit filed in support of the application for the warrant. The State
perfected intermediate appeals which were consolidated on appeal. The SD Supreme Court reversed and remanded,
upholding the affidavit and search warrant.
This decision is unanimous with opinion authored by Justice Jensen.
EVENS v. EVENS, 2020 S.D. 62: Acting pro se, Wife appeals adverse
divorce decree and the trial court’s finding Wife in contempt. The nature of the lower court’s decision and appeal
is described in the 1st paragraph of the opinion as follows:
[¶1.]
Rachel Evens appeals the circuit court’s judgment and decree of divorce entered on the grounds of extreme
cruelty as well as its determinations regarding child custody, property
division, child support, and attorney fees and costs. Rachel also appeals the
court’s subsequent contempt order against her. We affirm.
The post decree contempt proceeding related to Wife’s refusal
to sign and deliver deeds, stock certificates and vehicle titles over to
Husband.
In regard to Wife’s efforts to be represented by counsel, Paragraph
10 of the Court’s opinion reports:
[¶10.]
During this pretrial period, Rachel was represented by four different
attorneys, each of whom subsequently moved to withdraw shortly after noting
their appearances. Rachel represented herself at trial and on appeal.
The SD Supreme Court affirmed.
This decision is unanimous, with opinion authored by Justice
Salter. Additionally, the Court awarded
Husband appellate attorney fees in the amount of $30,000.
These decisions may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
