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 .