Vulnerable Adult Protected, Criminal Convictions Aff'd., Wind Farm Proposal prevails in Deuel County in SD's PUC

 

The SD Supreme Court handed down four decisions this morning:

 

1. Vulnerable Adult Subject to Abuse Protected;

 

2. Criminal convictions affirmed;

 

3. Wind Farm Proposal prevails, Deuel County;

 

4. Wind Farm Proposal prevails, South Dakota’s PUC.

 

Summaries follows:

 

BRUGGEMAN v. RAMOS, 2022 S.D. 16:  This is an action brought on behalf of a “vulnerable adult subject to abuse,” approximate age of 76 at the time of this opinion.  The Defendant is a former primary care-giver who was acting with power of attorney.  The trial court granted relief, entered a restraining order against Defendant, ordered the Defendant to return $296,500 to the plaintiff, and also awarded attorney fees to Plaintiff Black Hills Advocate LLC.  The SD Supreme Court affirmed all aspects of the lower court’s ruling, but denied appellate attorney fees to Black Hills Advocate LLC.  The Court’s decision is a 3-1-1 ruling, with opinion authored by Justice DeVaney.  Justice Kern dissented on the sole issue of appellate attorneys, agreeing with the majority on all other issues.  Chief Justice Jensen dissented because the trial court quashed a subpoena by Defendant for the alleged “vulnerable adult” to appear in court and testify.  According to the dissent, “The circuit court quashed the subpoena for perhaps the most crucial witness in this case.”

 

STATE v. RED CLOUD, 2022 S.D. 17:  This criminal appeal is described in the opening paragraphs of the Court’s opinion:

 

[¶1.] A jury convicted Anthony Red Cloud II (Red Cloud) of burglary and two counts of simple assault arising from a home invasion. Joe Zueger (Zueger) encountered Red Cloud shortly after he broke into Zueger’s home. Red Cloud fled the home and was arrested later that morning on another charge. Zueger identified him as the intruder during a one-person show-up identification. Although Red Cloud moved to suppress this identification, the circuit court denied his motion and the evidence was received at trial. The State also introduced the results of DNA testing through expert testimony but inadvertently failed to send the expert’s report to the jury for their deliberations. Red Cloud moved for a mistrial on this basis, which the circuit court denied.

 

[¶2.] Red Cloud was charged and tried on a part II habitual offender information alleging two prior felony convictions. Red Cloud moved for judgment of acquittal following the State’s case-in-chief on the basis that the State failed to prove that Red Cloud had been released from supervision for the prior felonies within the past 15 years. The circuit court denied this motion, and the jury found Red Cloud to be a habitual offender. Red Cloud appeals the circuit court’s denial of his motion to suppress the show-up identification, his motion for a mistrial because of the omission of the DNA exhibit from jury deliberations, and his motion for judgment of acquittal in the habitual offender trial. We affirm.

 

The Court’s ruling is unanimous (5-0), with opinion authored by Justice Kern.

 

EHLEBRACHT v. DEUEL CNTY. PLN. COMM’N and CROWNED RIDGE WIND II, LLC, 2022 S.D. 18:  Neighboring landowners challenged Applicant (seeking to establish a Wind Energy System) for a Special Exception Permit from the Deuel County Board of Adjustment.  Board of Adjustment ruled in favor of the Applicant’s proposed Wind Energy System.  Circuit Court upheld the decision.  The SD Supreme Court affirmed in a unanimous (5-0) decision, with opinion authored by Justice Salter.  Former Chief Justice Gilbertson participated on this case which was submitted to the Court on November 16, 2020. 

NOTE: The appellants in this case are the same appellants in the next case which upholds the decision by South Dakota’s PUC.    

 

EHLEBRACHT v. CROWNED RIDGE WIND II, LLC and S.D. PUB. UTIL. COMM’N, 2022 S.D. 19: Applicant sought permit from South Dakota’s Public Utility Commission (PUC), “to construct a large scale wind energy farm in northeast South Dakota.”  PUC approved. Circuit Court Approved.  The SD Supreme Court affirmed in a unanimous (5-0) decision, with opinion authored by Justice Salter. Circuit Judge Anderson participate in this case, in lieu of Chief Justice Jensen.

NOTE: The appellants in this case are the same appellants in the preceding case which upheld the decision by the Deuel County Board of Adjustment.    

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

Two New Decisions by SD Supreme Court Today

 

The SD Supreme Court handed down two decisions this morning:

 

1. Minors are subject to DUI prosecution in criminal court;

 

2. Denial of CUP for CAFO upheld;

 

 

Summaries follows:

 

STATE v. BETTELYOUN, EHRET, OSBORNE, 2022 S.D. 14:  Three minors under the age of 18 were charged with DUI.  Each filed a motion to dismiss, “assert[ing] that under the language of the applicable statutes, they could only be charged as children in need of supervision (CHINS) placing them under the exclusive jurisdiction of the circuit court. SDCL 26-8B-2.”  The Magistrate Courts, as well as the Circuit Courts, ruled in favor of the State, rejecting the minors’ argument.  The SD Supreme Court Affirmed, holding:

 

[¶38.] Despite the Appellants’ perceived disharmony among the different avenues that the State may take when charging underage drivers under the zero tolerance or DUI statutes, these arguments involve the wisdom of the Legislature’s penal code, which are “questions of public policy, not appellate error.” Trask v. Meade Cnty. Comm’n, 2020 S.D. 25, ¶ 34, 943 N.W.2d 493, 501. And contrary to Appellants’ claim that the overlapping statutes cause disharmony, the more tenable reading of the statutes is to conclude that the Legislature intended to provide prosecutors with the option of charging juveniles under either statute.

 

This decision is unanimous (5-0), with opinion authored by Justice Kern.

 

 

MILES v. SPINK COUNTY BOARD OF ADJUSTMENT, 2022 S.D. 15: County Board of Ajdustment denied Conditional Use Permit (CUP) for a Concentrated Animal Feeding Operation (CAFO).  In taking an appeal therefrom, by way of writ of certiorari to Circuit Court, the allegation was “that the Board’s decision was arbitrary and that several members of the Board were biased or held an unreasonable risk of bias, which should have disqualified them from voting on the CUP.”  This assertion was pursued as follows:

 

Prior to the hearing on the writ, Miles deposed each Board member. He moved the circuit court to admit their depositions into evidence, which the court denied. Prior to the hearing on the writ, Miles sought permission from the court to call the Board members to testify in person at the hearing. The circuit court also denied this request.

 

The Circuit Court upheld the Board’s decision and the SD Supreme Court Affirmed.  The Court’s decision is unanimous (5-0), with opinion authored by Justice Kern.  Retired Chief Justice Gilbertson participated in this case which was submitted to the Court on October 5, 2020. 

 

 

 These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

SD Supreme Court hands down 1 decision this morning

 

The SD Supreme Court handed down one decision this morning, holding inter alia:

 

1. W’s tort claims against H not barred by Settlement Agreement in Divorce action.

NIEMITALO v. SEIDEL, 2022 S.D. 13:  W sued for divorce in September, 2017.  In November 2017, H "physically attacked [W] at Bison Grain, a company owned and operated by [H & W], then bound her with zip ties, and drove her to their marital home where he raped her."  H was prosecuted criminally and sentenced to 75 years in prison.  H & W entered into a settlement entitled, “Property Distribution and Divorce Agreement.” A decree of divorce was granted in December 2018.  W filed a civil suit in September 2019, setting forth tort claims  of “intentional infliction of emotional distress, negligent infliction of emotional distress, false imprisonment, and civil battery” related to H’s criminal conduct in November 2017.  The trial court granted H summary judgment in the civil tort action on the basis of the parties’ settlement agreement in the divorce action.  The SD Supreme Court reversed and remanded, holding:

 

[¶30.] The Agreement provides that [W] obtained a divorce from [H] based on adultery, conduct that does not have a common factual nucleus to her interspousal tort action against [H] for intentional infliction of emotional distress, negligent infliction of emotional distress, false imprisonment, and civil battery. Further, nothing in the Agreement reflects that the parties raised, litigated, negotiated, or settled, in the divorce action, the impact of [H]’s assaultive conduct against [W] that occurred after she filed for divorce. Finally, although [W] received a lump sum  alimony award, the language in the Agreement does not reflect that the award was intended to compensate her for [H]’s tortious conduct.

 

[¶31.] Because the language of the Agreement does not preclude [W]’s civil tort suit against [H] and res judicata does not apply, the circuit court erred in granting [H] summary judgment.

 

This decision is unanimous (5-0) with opinion authored by Justice DeVaney.  Note: This case orally argued and submitted to the Court for decision less than 2 months ago, on January 12, 2022.

 

This decision may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .