Challenge to "abandeoned title" reinstated

 

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

 

1. Challenge to tow company’s “abandoned title” reinstated

 

 

Summary follows:

 

SCOTLYNN TRANSPORT, LLC v. PLAINS TOWING & RECOVERY, LLC, 2024 S.D. 24:  At the direction of a law enforcement officer, Defendant removed a semi-tractor and trailer from an accident site.  Thereafter, Defendant sought to invoke the procedure set forth in with  SDCL 32-36 (titled, “ABANDONED, DERELICT AND JUNK MOTOR VEHICLES AND SCRAP METALS”) to secure a new title for the semi-tractor from the SD Dept. of Revenue.  Original title owner brought this action against Defendant asserting “several claims” as to ownership. The trial court granted summary judgment for Defendant finding that Defendant “had complied with SDCL 32-36-8 and lawfully obtained title to the tractor.”  The SD Supreme Court reversed and remanded, stating:

 

[¶25] …the parties’ writings and conduct support the inference of an implied contract to store the tractor

 

And finding:

 

[¶38]  there are disputed material facts relating to [Plaintiff’s] implied contract theory

 

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

 

This decision may be accessed at

 

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

1st degree murder conviction aff'd; Res Judicata bars spouse's new claim

 

The SD Supreme Court handed down two decisions this morning:

 

1. 1^st degree murder conviction affirmed;

 

2. Res judicata bars spouse’s new claim.

 

Summaries follows:

 

STATE v. BOLDEN, 2024 S.D. 22: Defendant, after having been convicted by jury of 1^st degree Murder and possession of a firearm by a felon, was sentenced to life in prison and 35 years on the firearm conviction.  The facts of this offense took place outside of a nightclub in Sioux Falls.  Defendant claimed self-defense and testified at trial, along with several other witnesses called on his behalf.  Defendant’s appeal, asserted in regard to the 1^st degree murder conviction on the ground of insufficient evidence, is rejected by the SD Supreme Court which affirms the lower court.  This decision is unanimous (5-0), with opinion authored by Justice Kern.

 

ESTATE OF SMEENK, 2024 S.D. 23: This dispute was previously addressed in Estate of Smeenk (Smeenk I), 2022 S.D. 41, 978 N.W.2d 383, which resulted in a partial affirmance and a partial reversal.  Subsequent litigation in the trial court resulted in an adverse judgment to the Appellant (spouse of the deceased) in both appeals.  The opening paragraph of this opinion describes the dispute, its result on the 1^st appeal, the lower court’s more recent action, and the result on this appeal which is also adverse to Appellant, on the basis of res judicata.  Here is ¶1:

 

[¶1.] Following our decision in In re Estate of Smeenk (Smeenk I), 2022 S.D. 41, 978 N.W.2d 383, Denise Schipke-Smeenk filed a motion for partial summary judgment relating to her breach of contract claim against the estate of her deceased husband, Neil Smeenk. We considered the same breach of contract claim in Smeenk I and affirmed the circuit court’s decision to deny the claim after a court trial. In its current iteration, Denise has changed the type of relief she is requesting; she is now seeking money damages for the breach instead of the specific performance remedy she had pursued unsuccessfully in Smeenk I. Neil’s son opposed Denise’s partial summary judgment motion, arguing that our decision in Smeenk I resolved Denise’s claim against the estate and precluded any further effort to change or refine the claim under principles of res judicata. The circuit court agreed and concluded that Denise was barred from litigating her breach of contract claim against Neil’s estate. Denise appeals, and we affirm.

 

This decision is unanimous (5-0), with opinion authored by Justice Salter.  (NOTE: The Court’s previous opinion in Smeenk I  had been authored by Chief Justice Jensen.)

 

These decisions may be accessed at

 

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

 

 

 

two reversals, one affirmance

 

It should be noted that the first decision in today’s release is controlled by the landmark decision, Bracken v. South Dakota Department of Labor and Regulation, Reemployment Assistance Division, 2023 S.D. 22.  This is NOTEWORTHY to this reporter because the Court’s ruling in Bracken was the result of pro bono advocacy by attorney Eric Schulte who has recently been appointed as a new federal judge for the District of South Dakota.  Eric Schulte’s pro bono work in South Dakota State Court lives on…

 

The SD Supreme Court handed three decisions this morning:

 

1. Order requiring repayment for pandemic benefits reversed

 

2. Claim contesting Will reinstated

 

3. Consecutive Sentences for separate transactions upheld

 

Summaries follows:

 

REIDBURN v. DEP’T OF LABOR & REGULATION, 2024 S.D. 19: Claimant was ordered to “repay $24,690 in pandemic unemployment benefits,” by the ALJ and lower court.  His request for attorney fees was also denied.  The SD Supreme Court reversed on the repayment issue, finding that the ALJ and lower court applied the wrong standard (both “‘utilized the now-rejected direct/indirect standard.’” The lower court’s ruling on attorney fees is affirmed, but this opinion declines to rule on a seemingly-warranted request for appellate attorney fees because a motion for appellate attorney fees had not been filed. The Court’s decision is unanimous (5-0), with opinion authored by Justice DeVaney.  NOTE:  The lower court’s denial of attorney fees was justified because the matter was considered by the lower court prior to this Court’s ruling in Bracken v. South Dakota Department of Labor and Regulation, Reemployment Assistance Division, 2023 S.D. 22, ¶ 24, 991 N.W.2d 89 – a decision which rejected the “direct/indirect standard.”

. 

 

ESTATE OF SCHMELING, 2024 S.D. 20: This will contest was brought by 2 brothers and a nephew of the deceased.  The trial court granted summary judgment against the plaintiffs.  The SD Supreme Court reversed and remanded.  The lower court’s ruling and the SD Supreme Court’s decision is explained in the opening paragraph as follows:

 

[¶1.] Two brothers and one nephew of the decedent filed a petition contesting the provisions in the decedent’s will devising farmland to the decedent’s sister-in-law. The Estate moved for summary judgment, asserting that based on this Court’s decision in In re Estate of Tank, 2020 S.D. 2, 938 N.W.2d 449, the contestants could not show that the devise was the result of undue influence. The circuit court agreed, concluding that the record contained no evidence showing that the decedent had a testamentary disposition toward the contestants. The court also determined that summary judgment was appropriate because the contestants did not present evidence showing that the sister-in-law participated in the drafting of the disputed will or engaged in acts of undue influence. The contestants appeal, asserting the circuit court erred in granting summary judgment on grounds not briefed or argued to the court and erred in concluding that under Tank summary judgment was appropriate. We reverse and remand.

 

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

 

STATE v. SIMONSEN, 2024 S.D. 21:  Defendant “ple[d] guilty to two counts of solicitation of a minor, one count of sexual contact with a minor under the age of sixteen, and one count of rape in the fourth degree.” The trial “court signed four separate judgments of conviction and ordered each conviction to be served consecutively.”  Because the determination of “separate transactions” was made in a separate hearing (with only the attorneys present), the Defendant’s appeal is premised on the argument that the trial court “improperly enhanced his sentence after it had already commenced.”  The SD Supreme Court rejected Defendant’s appeal and affirmed the trial court.  This decision is unanimous (5-0), with opinion authored by Chief Justice Jensen. 

 

These decisions may be accessed at

 

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

 

 

Three Criminal Cases, Two Reversals

 

The SD Supreme Court handed three decisions this morning:

 

1. Prison Sentence for Drug Possession Reversed

 

2. Defendant denied opportunity to withdraw guilty plea to 2^nd Degree Rape

 

3. Jury Conviction for 2^nd Degree Rape Reversed

 

Summaries follows:

 

STATE v. FEUCHT, 2024 S.D. 16:  Defendant’s prison sentence (possession of controlled substance) is vacated and remanded for failure of the trial court to comply with the presumptive probation statute, SDCL 22-6-11, by not finding and listing aggravating circumstances in the judgment of conviction. Defendant’s failure to preserve error by non-compliance with the statute did not bar relief in this appeal, but the Court makes clear that,

 

[¶25.] [G]oing forward, alleged procedural errors regarding the application of SDCL 22-6-11 that were not first brought to the attention of the sentencing court will be reviewed only for plain error.

 

This ruling is unanimous (5-0), with opinion authored by Justice Kern, on re-assignment.

 

STATE v. TRUEBLOOD, 2024 S.D. 17: After Defendant pled guilty to 2^nd Degree Rape, he sought a change of counsel and also to withdraw his guilty plea.

 

[¶8.] In his motion to withdraw his plea, Trueblood asserted his innocence.

 

The trial court denied both the request to change counsel and the motion to withdraw the guilty plea.  The SD Supreme Court affirmed in a unanimous ruling (5-0), with opinion authored by Justice Myren.

 

STATE v. VAN DER WEIDE, 2024 S.D. 18: Defendant was found guilty by jury of 2^nd Degree Rape and sentenced to prison for 20 years, with 10 suspended.  The Victim and Defendant had a prior relationship, described as follows:

  

[¶1.]  Despite having a daughter together, their relationship had been sporadic, with  multiple engagements and breakups.

 

The SD Supreme Court reversed and remanded, stating:

 

[¶2.] [Defendant] was found guilty and appeals, arguing that the court abused its discretion in excluding evidence of the sex toys and allowing the State to cross examine based on unadmitted text messages. We reverse.

 

* * *

 

[¶55.] The circuit court erred in excluding [Defendant’s] testimony regarding the sex toys, violating his constitutional right to testify in his defense. Because the error is not harmless beyond a reasonable doubt, [Defendant] is entitled to a new trial.

 

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

 

 

These decisions may be accessed at

 

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

"Show-up identification" by eye-witnesses tolerated

 

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

 

1. “Show-up identification” by eye-witnesses tolerated;

 

 

Summary follows:

 

STATE v. OSMAN, 2024 S.D. 15: Defendant was convicted of offenses related to a vehicle collision with a parked vehicle where the driver fled the scene on foot. Eye witnesses identified Defendant in a “show-up identification” procedure, 20 minutes after the incident, with respect to a suspect the police had apprehended nearby.  The trial court sentenced the Defendant to 5 years in prison.  This appeal is primarily focused on the the trial court’s refusal to suppress the “show-up identification” made by the eyewitnesses to the incident.  The SD Supreme Court affirmed, while recognizing that, “ ‘[s]how-up identifications are inherently suspect.’” This ruling is a 4-1 decision, with the Court’s opinion authored by Justice Kern.  Justice Myren dissented, stating that, “There [had been] a substantial likelihood of misidentification because of an impermissibly suggestive identification procedure.” 

 

This decision may be accessed at

 

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

 

 

Denial of Counsel's Request to Withdraw Warrants Reversal

 

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

 

1. Denial of Counsel’s Request to Withdraw warrants reversal;

 

 

Summary follows:

 

STATE v. ABRAHAM-MEDVED, 2024 S.D. 14: Following a guilty plea, defendant and her court-appointed counsel appeared for a sentencing hearing.  At the hearing, court-appointed counsel requested permission to be removed from the case

 

because of “a serious breakdown of communication between” him and [the client.]

 

Thereafter,

 

The circuit court did not inquire of either [client] or [counsel] as to the nature of the breakdown in communication. Rather, the court denied [counsel’s] request to withdraw, explaining, “I think that since the matter is set for sentencing I’m not sure what communication there is left to do.”

 

Defendant was sentenced to 5 years in prison, with 2 years suspended.

 

The SD Supreme Court reversed and remanded, holding that Defendant had been prejudiced by the breakdown in communications and the trial court’s refusal to allow withdrawal of counsel.  This ruling is unanimous (5-0), with opinion authored by Justice DeVaney.

 

This decision may be accessed at

 

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

 

5 year prison sentence vacated; presumptive probation ordered

 

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

 

1. 5 year prison sentence vacated; presumptive probation ordered

 

 

Summary follows:

 

STATE v. KURTZ, 2024 S.D. 13:  Upon entry of guilty plea to possession of controlled substance, the Trial Court sentenced the Defendant to 5 years in prison, the maximum possible sentence.  Defendant claims entitlement to presumptive probation in accordance with SDCL 22-6-11.  The trial court did not order presumptive probation because of “aggravating circumstances” articulated in ¶8 as follows:

 

[The Trial Court] detailed several aggravating factors it found to exist, including prior failures to comply, prior probation and parole violations, previous failures to appear, and failures to pay court-ordered fines. The court emphasized [the Defendant’s] 15 prior felony convictions and noted that the current crime occurred while he was on parole. The court also referred to [the Defendant] being arrested for simple assault while on parole on September 27, 2022, a charge that, according to the court, was later reduced to disorderly conduct.

 

But the trial court also made the finding that the Defendant

 

           did not pose a significant risk to the public

 

The SD Supreme Court vacated the sentence and remanded directing the trial court to enter “a sentence of probation.”  The Court’s decision is a direct application of the language found in SDCL 22-6-11. 

 

This decision is unanimous, with opinion authored by Justice DeVaney.

 

This decision may be accessed at

 

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

 

HSC Patient/Inmate entitled to dismissal of criminal charges

 

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

 

1)    HSC patient/inmate entitled to dismissal of criminal charges;

 

 

Summary follows:

 

STATE v. FOSHAY, 2024 S.D. 12: Criminal Defendant was found “incompetent to stand trial” in 2017 and committed to the SD’s Human Services Center (HSC) for “competency restoration treatment.”  Thereafter, “as a result of a series of ‘re-commitments,’ [Defendant] remains committed.”   Defendant sought a dismissal of criminal charges in 2021, pursuant to SDCL 23A-10A-14 (requiring dismissal when “there is no substantial probability that the defendant will become competent to proceed in the foreseeable future.”) 

 

The trial court denied dismissal.  The SD Supreme Court reversed and remanded,

 

for the entry of an order dismissing the criminal charges against Foshay.

 

And further stating/instructing:

 

 Although the record contains a recommendation by the director of the facility in which Foshay is currently placed that he continue to be held for the reasons set forth in SDCL 23A-10A-14, any further determinations as to those recommendations must be addressed through a civil commitment proceeding, as noted in this statute.

 

This is a 4-1 ruling, with Majority Opinion authored by Justice Salter. 

 

Justice Kern filed a dissenting opinion in which she disagrees with the majority opinion’s factual finding in regard to the probability of competency in the foreseeable future – a finding which she believes, “amounts to a cursory de novo review.”

 

NOTE: the majority and dissenting opinions run 30 pages. (Majority opinion found in ¶¶ 1-40, Dissent opinion found in ¶¶ 41-63.)

 

This decision may be accessed at

 

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

SD Supreme Court Addresses Contracts for State Legislators

 

 

NOTE:  This case was orally argued yesterday.

 

The SD Supreme Court handed down one decisions this afternoon, holding, inter alia:

 

1. Contracts for State Legislators Addressed;

 

 

Summary follows:

 

IN THE MATTER OF THE INTERPRETATION OF SOUTH DAKOTA CONSTITUTION AND STATE LAW RE: STATE LEGISLATOR’S INTEREST IN STATE OR COUNTY CONTRACTS, 2024 S.D. 11:

 

The Court’s decision is authored by Chief Justice Jensen.  Justice Kern provided a separate opinion, dissenting in part.

The Court’s Final Conclusion, as expressed in ¶¶ 63-64 is as follows: 

 

Conclusion

 

[¶63.] This case presents an appropriate instance to exercise our advisory opinion jurisdiction under Article V, § 5. The current state of our decisional law concerning Article III, § 12 is not sustainable. Our holdings in Asphalt Surfacingand Pitts, which equated general appropriation for ordinary and current expenses with legislative authorization to enter into specific contracts, are contrary to well[1]established constitutional limits on general appropriation legislation set out inArticle XII, § 2 and our cases. These holdings expressed in Asphalt Surfacing and Pitts are, therefore, overruled.

 

[¶64.] Our answer to the Governor’s restated question whether Article III, § 12 prohibits all contracts between legislators and the State is: No, it does not. The ontract restriction stated in Article III, § 12 is not a categorical bar on all contracts funded by the State. Instead, it prohibits a legislator, or former legislator within one year following the expiration of the legislator’s term, from being interested, directly or indirectly, in contracts that are authorized by laws passed during the legislator’s term. The purpose and effect of general appropriation legislation is restricted to simply allocating money to fund state government; it does not, itself, authorize specific contracts relating to ordinary or current expenses.

 

Justice Kern filed a separate opinion in which she expresses a dissent in part and a concurrence in part.  Justice Kern’s view, as articulated in ¶67, is as follows:

 

[¶67.] I respectfully dissent from the portion of the majority opinion which overrules decades of established precedent to exempt general appropriations from Article III, § 12 of the South Dakota Constitution. This approach disregards the constitutional text and may ultimately prove difficult to interpret as the majority opinion adopts a capacious understanding of interest, prohibiting legislators from having any interest whatsoever—no matter how indirect or attenuated—in contracts authorized by special appropriations. Nevertheless, I join the majority opinion’s important holding that Article III, § 12 applies to “law[s] passed duringthe legislator’s term. . . not merely. . . laws for which the legislator cast a vote.” (Emphasis added.) Additionally, although I agree that the circumstances surrounding the Governor’s request indeed constitute a solemn occasion under Article V, § 5, which permits this Court to exercise our original jurisdiction, I question whether the submitted interrogatories present “important questions of law involved in the exercise of [her] executive power.” Rather, they seem more akin to questions from legislators regarding their individual concerns, which is not properly within the purview of an advisory opinion. See S.D. Const. art. V, § 5.

 

This decision may be accessed at

 

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

Five Decisions by the SD Supreme Court today

 

The SD Supreme Court handed down two decisions this morning, holding, inter alia:

 

1. City of Sturgis rebuffed;

 

2. New decision on Tax Deed dispute;

 

3. “Use tax” dispute resolved;

 

4. Health Plan must allow other providers to participate;

 

5. Sellers prevail in dispute with Realtor.

 

Summaries follows:

 

BOHN v. BUENO, 2024 S.D. 6: This dispute involves the City of Sturgis and an effort to remove the position of City Manager from City Government.  Upon receipt of a petition with 900 signatures, Sturgis City officials refused to certify an election.  The trial court refused to issue a mandamus requiring the election.  The SD Supreme Court reversed, stating:

 

Because a petition to remove the city manager position was presented to the city council, and the petition requested an election on the proposition of employing a city manager, the city council had a clear duty to schedule an election. We remand to the circuit court to enter a writ of mandamus directing the city council to schedule and hold an election consistent with SDCL 9-10-1 as presented in the petition.

 

This decision is unanimous (5-0), with opinion authored by Justice Myren. Justice DeVaney filed a separate concurring opinion.  Petitioning Citizens were denied appellate attorney fees (because not authorized by statute or other authority), but were awarded costs.

 

BIALOTA v. LAKOTA LAKES, LLC, 2024 S.D. 7:  (NOTE: the Court handed down a written decision in this dispute on 10/25/23, but subsequently withdrew the opinion, granted a rehearing, and rendered this decision today.)  Trial court set aside a tax deed issued by Pennington County, at the request of the title owner of the real estate, accepting the title owner’s argument that proper notice had not been delivered.  The SD Supreme Court reversed and remanded, upholding the tax deed.  The Court’s ruling is 3-2, with majority opinion authored by Chief Justice Jensen upon reassignment.  Justice Kern filed a dissenting opinion, in which Justice DeVaney joined.

 

ELLINGSON DRAINAGE v. DEP’T OF REVENUE, 2024 S.D. 8:  This is a contest regarding South Dakota’s use tax.  The dispute, its history and result on appeal are described in the opening paragraph of the opinion, as follows:

 

[¶1.] The South Dakota Department of Revenue (DOR) imposed a use tax on Ellingson Drainage, Inc. (Ellingson), after an audit revealed it had not paid use tax on equipment used in 30 South Dakota projects but purchased elsewhere. Ellingson filed an administrative appeal challenging the constitutionality of the tax, but the appeal was dismissed because the claim was deemed not cognizable in an administrative forum. Ellingson then appealed to the circuit court, which affirmed the imposition of the tax, holding it did not violate the Due Process Clause of the Fourteenth Amendment or the Interstate Commerce Clause, as applied to Ellingson. Ellingson appeals, and we affirm.

 

This ruling is unanimous (5-0), with opinion authored by Justice Salter.

 

ORTHOPEDIC INSTITUTE, ET AL v. SANFORD HEALTH PLAN, INC., 2024 S.D. 9: This is an action by humerous health care providers, seeking a declaratory judgment that they should be permitted to participate as “any willing provider” (pursuant to SDCL 58-17J-2) under Sanford Health Plan.  The trial court ruled for the providers.  The SD Supreme Court affirmed. This decision is unanimous (5-0) with opinion authored by Chief Justice Jensen, stating:

 

[¶1.]  The [trial] court determined that SDCL 58-17J-2 does not permit SHP to exclude a fully qualified and willing health care provider from participating as a panel provider in every health benefit plan offered by SHP. We affirm.

 

Circuit Judge Lovrien participated in this decision, in lieu of Justice Salter.

 

UHRE REALTY v. TRONNES, 2024 S.D. 10: This is a dispute between the Sellers and Realtor and the Realtor’s related Property Management Company.  The trial court ruled for Sellers (except on their claim for tortious interference) and awarded attorney fees to the Sellers.  The SD Supreme Court affirmed the victory for Sellers but reversed the attorney fee award.  This decision is unanimous (5-0), with opinion authored by Justice Salter.

 

These decisions may be accessed at

 

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

 

Trustees protected against claim of imprudent investment

 

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

 

1)    Trustees protected against claim of imprudent investment;

 

 

Summary follows:

 

REDLIN TRUST v. FIRST INTERSTATE BANK, 2024 S.D. 5: Daughter of deceased trustor brought suit against  co Trustees (her brother and a bank) for imprudent handling of funds.  Some $3 million in cash assets were simply deposited in a money market account, earning only modest interest income.  Daughter proceeds on numerous theories including breach of fiduciary duty, gross negligence, & bad faith.  The trial court granted summary judgment for the Defendant Trustees, relying, inter alia, on the provision of the trust instrument which established a waiver of the Prudent Investor Rule.  The SD Supreme Court affirmed.  This decision is unanimous (5-0) with opinion authored by Justice Kern.

 

These decisions may be accessed at

 

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

Consecutive Sentencing Upheld in Criminal Conviction Appeals

 

The SD Supreme Court handed down two decisions this morning, holding, inter alia:

 

1. Consecutive sentencing for drug offenses upheld;

 

2. Consecutive sentence for 3^rd degree rape upheld

 

Summaries follows:

 

STATE v. STEVENS, 2024 S.D. 3: Defendant was convicted, by jury, of drug offenses and sentenced to 1 year, 5 years and 10 years, to run consecutively.  The state’s primary witness was Defendant’s “former roommate and fellow methamphetamine user, testified for the State in exchange for immunity.” Defendant’s appeal is premised upon “the circuit [court’s failure to] give corroboration or cautionary accomplice jury instructions” in regard to the roommate’s testimony and the assertion of ineffective assistance counsel in regard to his trial counsel’s “for failing to propose accomplice testimony instructions.”  Since the 1^st issue was not preserved for appeal at trial, this appeal is addressed under the plain error standard of review.  The SD Supreme Court affirmed the trial court, holding that trial counsel’s effective cross-examination of the roommate foreclosed the issue of “prejudice” need for reversal on the basis of plain error. The holding in regard to lack of prejudice further dictates a rejection of the ineffective-assistance-of-counsel  assertion.  The Court’s ruling is unanimous (5-0) with opinion authored by Chief Justice Jensen.  Justice Salter filed a concurring opinion in which he opined , “I do not believe that absence of a corroboration instruction should be categorically regarded as error, plain or otherwise.”  NOTE: the rule that the testimony of an accomplice requires corroborating evidence is found in SDCL 23A-22-8 which is cited and discussed in both opinions.

 

STATE v. HORSE, 2024 S.D. 4: Defendant was convicted, by jury, of 3^rd degree rape and was sentenced, “to serve twenty years in the penitentiary, consecutive to a sentence he was already serving.” Defendant’s appeal raises three (3), “issues involving the validity of a search warrant for location data from his phone, comments made during trial by the State about the victim’s motivation to testify, and opinion testimony given by the detective who investigated the case.”  The SD Supreme Court rejected all three issues and affirmed the lower court. This ruling is unanimous (5-0) with opinion authored by Justice Kern.

 

These decisions may be accessed at

 

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

 

 

Taxpayer Denied refund of overpayment; McCook County Ordinance divides Justices 3/2

 

The SD Supreme Court handed down two decisions this morning:

 

1. Taxpayers request for refund of overpayment denied under “make whole” doctrine;

 

2. McCook County Zoning Ordinance divides Justices 3/2.

 

Summaries follows:

 

MCLANE WESTERN, INC. v. S.D. DEPARTMENT OF REVENUE, 2024 S.D. 1: Taxpayer is a wholesaler of tobacco products in South Dakota.  Through a miscalculation, Taxpayer overpaid its sales tax obligation by some $530,000.  Taxpayer sought a refund from the SD Dept. of Revenue (DOR).  DOR eventually denied the request.  After a contested hearing before the Office of Hearing Examiner, the DOR’s denial was confirmed.  Appeal to the Circuit Court also resulted in an affirmance.  On appeal, the SD Supreme Court agreed with the taxpayer that it had overpaid the required sales tax, thereby disagreeing with the DOR and lower court.  Nonetheless, the Taxpayer was denied relief on appeal because it had passed the overpaid tax obligation on to its purchasers and had been “made whole” in regard to the obligation. The Court stated in ¶¶ 15-16:

 

[¶15.] Because McLane calculated the tax it owed based on the higher  price it paid to UST Sales, it overpaid the tobacco taxes due under SDCL 10-50-61. The Department erred in concluding otherwise.

 

[¶16.] However, this does not mean that McLane was entitled to a refund for these overpaid amounts.  Although McLane overpaid its advance tax obligation, it fully recovered the advance tax it paid from the dealers to whom it subsequently sold the OTP.  McLane was made whole by its resale of the OTP and is not entitled to any refund. On this basis, we affirm the Department’s denial of McLane’s request for a refund.

 

This decision in unanimous (5-0), with opinion authored by Justice Myren.

 

STOCKWELL v. MCCOOK COUNTY BOARD OF COMMISSIONERS, 2024 S.D. 2:  This dispute involves the interpretation of a County Zoning Ordinance in McCook County which was enacted in 2014.  BACKGROUND:  In 1999, Landowner had sought to re-zone some 5 platted lots (ranging in size from 3.8 to 5.4 acres) from agricultural to rural residential.  The county officials approved the request at that time, but that decision was overturned by an election in the County, initiated by County Residents.  In 2022, Landowner made a 2^nd Zoning request, arguing that the plain language of the County’s 2014 Zoning Ordinance in fact permitted “single family dwellings” in land previously zoned as agricultural for “lots of record.”  The County Officials and the Trial Court ruled against the Landowner, holding the history and overall effect of the 2014 Ordinance was intended to grandfather in the prior determination.  The SD Supreme Court reversed, stating:

 

[¶23.] The circuit court erred by deviating from these well-established rules of statutory construction in favor of its effort to ascertain what it believed to be the broader “intent of the zoning regulations.” In so doing, the court failed to apply the unambiguous text of the 2014 ordinance, which the court acknowledged made clear that Stockwell’s lots were, indeed, lots of record

 

[¶35.] The 2014 ordinance’s lot of record definition unambiguously refers to the effective date of the 2014 ordinance. Despite recognizing that Stockwell’s lots satisfy this definition, the circuit court erroneously supplanted a plain application of the text with a determination of the BOC’s intent to hold Stockwell’s lots were in fact not buildable. We reverse.

 

The Court’s decision is a 3/2 ruling.  Justices DeVaney and Kern dissent, with the dissenting opinion authored by Justice DeVaney. 

 

These decisions may be accessed at

 

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