Tax Deed upheld by 3/2 vote

 

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

 

1. Tax deed upheld by 3/2 vote

 

BIALOTA v. LAKOTA LAKES, LLC, 2023 S.D. 55:  Plaintiff filed this quiet title action for the purpose of eliminating the interest of a Prior Owner as a result of her purchase at a tax sale, offered for sale as a result of failure to pay taxes in Pennington County.  Prior Owner is a Minnesota Limited Liability Company.  Various efforts (by the County and by Plaintiff) to serve the Prior Owner with notice failed.  Ultimately, Plaintiff proceeded by serving the Minnesota Secretary of State as agent for the Prior Owner.  In this action, the trial court granted summary judgment for the Prior Owner, holding that Prior Owner had not been properly served with “notice of intent to take tax deed.”  The SD Supreme Court reversed, upholding title in Plaintiff as purchaser at the tax sale.  The Court’s decision is 3/2, with majority opinion authored by Chief Justice Jensen.  Justice Kern filed a dissenting opinion, in which Justice DeVaney concurs. 

The dissent’s view is that the tax deed is void on the basis that Plaintiff did “not establish that she personally served the Notice on the Minnesota Secretary of State as required by SDCL 10-25-5.”

The majority opinion upholds service by mail to the Minnesota Secretary of State, stating in note 4, “SDCL 15-6-4(d) does not define the method of delivery required to accomplish service. In fact, the service rules contemplate that delivery may take place by mail when there is an acceptance of service. See SDCL 15-6-4(j).”

 

This decision may be accessed at

 

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

Inmate denied appellate review of habeas dismissal

 

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

 

1. Inmate denied possibility of review in case where habeas counsel failed to seek certificate of probable cause for appeal of trial court’s dismissal

 

LEE v. WEBER, 2023 S.D. 54:  This is an action for habeas relief filed by a prisoner who was sentenced to life for 2^nd degree murder in 1998.  This is actually the prisoner’s 2^nd habeas action and it includes the assertion that his attorney in his 1^st habeas action was ineffective for failure to seek a certificate of probable cause for an appeal.  This 2^nd action was filed in 2007, but languished on the docket until 2018 at which time the trial court issued an order to show cause for dismissal for failure to prosecute.  State moved to dismiss the action on the basis that prisoner did not have a right to appeal the dismissal of his 1^st habeas action and because notice had not been timely served on the State, arguing that the 30 day time limit of 21-27-18.1 is absolute.  The trial court denied the State’s Motions to Dismiss. This is an interlocutory appeal by the State.

In this decision, the State prevails.  But, this decision generates 3 separate opinions.  The Court’s opinion is authored by Justice Myren and agreed to by Chief Justice Jensen.  Justice Salter filed a separate concurring opinion.  Justice DeVaney filed a separate concurring opinion, with which Justice Kern agrees.  The issue that divides the Justices appears to be the applicability (or continued stare decisis effect) of Jackson v. Weber, 2001 S.D. 30 and the possibility of relief for prisoner (in this situation) under Rule 60(b) (civil for collateral attacks of civil judgments, SDLC 15-6-60(b)). 

 

This decision may be accessed at

 

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

 

 

 

40 year prison sentence upheld for Defendant who was 14 years old at the time of the offense

 

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

 

1. 40 year prison sentence upheld for Defendant who was 14 years old at the time of the offense

 

STATE v. BLACK CLOUD, 2023 S.D. 53: Defendant, who was 14 years old at the time of the offense, was tried as an adult and found guilty of 2^nd degree murder by jury. The trial court sentenced Defendant to 40 years in prison.  Defendant’s 16 year old companion Johnson -- who was present during the events related to the killing, but who did not pull the trigger --  was tried as an adult.  Johnson “pled guilty to aggravated assault and accessory to [the] crime,” and received a 20 year sentence.  The SD Supreme Court affirmed, ruling against Defendant on each of the following assertions of error:

 

1. Whether the circuit court abused its discretion in denying Black Cloud’s motion for a mistrial following the voir dire discussion regarding Black Cloud being tried in adult court.

2. Whether comments to the jury regarding Johnson’s guilty plea constituted plain error.

3. Whether the circuit court abused its discretion when it refused to instruct the jury to disregard Johnson’s guilty plea.

4. Whether the circuit court erred in excluding evidence that [the victim] was on parole at the time of his death.

5. Whether the circuit court abused its discretion by imposing a 40-year sentence or erred by imposing a sentence in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

 

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

 

Although the State had made some inappropriate comments in voir dire relating to the fact the Defendant was being “tried as an adult,” the trial court directed the State’s Attorney to provide an explanation which “clarified” the inappropriate comments.

 

As to the propriety of transfer from Juvenile Court to Circuit Court, the SD Supreme Court held that the transfer “issue is not properly before us.” (footnote 10).

 

This decision may be accessed at

 

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