1983 claim against City of Sioux Falls, Challenge to Trust rejected

 

The SD Supreme Court handed down two decisions this morning:

 

1. § 1983 claim against City of Sioux Falls analyzed;

 

2. Challenge to disbursements from Trust rejected

 

Summaries follows:

 

BOGGS v. PEARSON, 2021 S.D. 44:  This is a 1983 action (42 U.S.C. § 1983) filed in SD state court against the City of Sioux Falls and two of its police officers.  The result at the trial level is described in the opening paragraph of the Court’s opinion:

 

[¶1.] In this 42 U.S.C. § 1983 action against certain officers of the Sioux  Falls Police Department and the City of Sioux Falls, the circuit court concluded on a  motion for summary judgment that the officers were not entitled to qualified  immunity because material issues of fact were in dispute on the questions whether  the officers’ warrantless entry into the plaintiff’s apartment and subsequent use of  force were constitutional. The court further denied summary judgment on the plaintiff’s claim against the City, determining that material issues of fact were in  dispute as to whether the plaintiff’s injury was caused by inadequate training, a  deliberate indifference, or an errant policy.

 

The SD Supreme Court reversed in part and remanded, holding:

 

[¶44.] The circuit court erred in denying summary judgment on Nichole’s §  1983 claim that the officers’ warrantless entry into her apartment violated her  constitutional right to be free from unreasonable searches and seizures. The circuit  court also erred in denying the City’s motion for summary judgment. However, the  court properly concluded that material issues of fact are in dispute on the question  whether the officers used excessive force such that the defendants are not entitled  to qualified immunity as a matter of law on this § 1983 claim.

 

The Court also rejected Plaintiff’s request for appellate attorney fees under the federal statute as premature.  This decision is unanimous (5-0) with opinion authored by Justice DeVaney. 

 

ESTATE OF CALVIN, 2021 S.D. 45:  Trust was established by Grandfather for his son, with grandchildren designated as remainder beneficiaries.  At the death of son, grandchildren filed claim against son’s estate for $700,000 of alleged wrongful disbursements to son from estate.  Estate of son, allied with step-mother of grandchildren, resisted claim.  Trial court denied the claim, holding the disbursements were proper.  The SD Supreme Court affirmed in a unanimous (5-0) decision with opinion authored by Chief Justice Jensen. 

 

These decisions may be accessed at

 

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

ICWA proceeding upheld, DUI conviction upheld

 

The SD Supreme Court handed down two decisions this morning:

 

1. Another ICWA case, affirming termination of parental rights and denial of motion to transfer to tribe;

 

2. DUI conviction upheld, blood draw found to be consensual.

 

Summaries follows:

 

INTEREST OF C.R.W., 2021 S.D. 42: Another ICWA proceeding.  The trial court terminated the rights of both biological parents for this Indian Child, denying a Motion to Transfer to the Oglala Sioux Tribe.  Mother and Intervenor Tribe, appealed.  The SD Supreme Court affirmed in this unanimous (4-0) decision, with opinion authored by Chief Justice Jensen.  Justice Kern did not participate.  The issues, as set forth in the opening paragraph of the Court’s opinion, are as follows:

 

[¶1.] D.S. (Mother) and J.R.W. (Father) are the biological parents of C.R.W., who was the subject of an abuse and neglect proceeding before the circuit court. The Oglala Sioux Tribe (the Tribe) intervened in the proceeding pursuant to the Indian Child Welfare Act (ICWA). The Tribe moved to disqualify C.R.W.’s attorney alleging the attorney had a conflict of interest with C.R.W. because the attorney was not advocating for C.R.W.’s expressed wishes. During the termination proceedings, Mother and Tribe moved to transfer the case to tribal court. The circuit court denied the motion to disqualify C.R.W.’s attorney and the motions to transfer jurisdiction. The court entered a final dispositional order terminating the parental rights of both parents. Mother and the Tribe appeal. We affirm.

 

STATE v. SLEPIKAS, 2021 S.D. 43:  Defendant was convicted of DUI. The sole issue on appeal relates to Defendant’s consent for a blood draw. (“[Defendant] twice answered, ‘okay’ in response to the officer’s request to draw his blood.”)  This decision affirms both the Magistrate Court and the Circuit Court, holding:

 

[¶26.] Based upon the totality of the circumstances, the magistrate court’s finding that Slepikas provided valid, voluntary consent to the blood draw was not clearly erroneous. We affirm the circuit court’s decision.

 

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

 

These decisions may be accessed at

 

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

 

two decisions by SD Supreme Court this morning

 

The SD Supreme Court handed down two decisions this morning:

 

1. Extrinsic oral evidence by Attorney in Fact permitted;

 

2. Termination of parental rights to Indian Child reversed.

 

Summaries follows:

 

SMITH ANGUS RANCH v. HURST, 2021 S.D. 40:  This dispute and the result at the trial level are described in the opening paragraph of the Court’s opinion:

 

[¶1.] Smith Angus Ranch Inc. (SAR), a South Dakota corporation, brought an action alleging Travis Hurst (Travis) wrongfully acquired SAR assets and made improper purchases using SAR funds while serving as a director and officer of SAR. The complaint alleged breach of fiduciary duty and self-dealing, among other claims. The court granted SAR’s motion for partial summary judgment on the claims for breach of fiduciary duty and self-dealing, after prohibiting Travis from presenting extrinsic oral evidence to show he was authorized to carry out the contested transactions.

 

Intermediate appeal to the SD Supreme Court was sought, as explained in ¶12:

 

[¶12.]  Travis petitioned for intermediate appeal, which this Court granted. He claims the circuit court erred by applying the rule in Stoebner to exclude extrinsic oral evidence that the transactions were authorized or approved and thereby erred in granting SAR’s motion for partial summary judgment.

 

The SD Supreme Court agreed with appellant, reversing and remanding, stating in ¶22:

 

[¶22.] Our cases, including our most recent decision in Stoebner, have only applied the rule from Bienash to acts of self-dealing by an attorney-in-fact acting under a written POA. We have not extended this rule to other fiduciaries, and SAR does not present authority from any jurisdiction that has extended the rule to other fiduciary relationships. Limiting the rule to acts of self-dealing by POAs is consistent with the recognition of this Court, and other courts, that the rule arises from the acute vulnerability of POAs to self-dealing. See Bienash, 2006 S.D. 78, ¶ 21, 721 N.W.2d at 436. See also Estate of Casey v. Comm’r of Internal Revenue, 948 F.2d 895, 898 (4th Cir. 1991) (stating the bright-line rule concerning POAs had been adopted “in order to avoid fraud and abuse”).

 

This decision is unanimous, with opinion authored by Chief Justice Jensen. 

 

IN RE INTEREST OF C.H., 2021 S.D. 41:  Mother’s parental rights to Indian Child were terminated by the trial court.  The SD Supreme Court reversed and remanded because the evidence was insufficient to establish that “active efforts were made to reunify Mother and [child]” as required by the Indian Child Welfare Act (ICWA), as well as by SD law.  This decision is unanimous, with opinion authored by Justice DeVaney. 

 

These decisions may be accessed at

 

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

 

 

 

Adjudication of “delinquent child” reversed

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

 

1)    Adjudication of “delinquent child” reversed

 

Summary follows:

 

IN RE INTEREST OF I.T.B., 2021 S.D. 39: High school student was adjudicated to be a "delinquent child" on the basis that he made a terroristic threat under SDCL 22-8-13(1).  The facts occurred around a lunch period in January, 2020, and were dealt with by the high school principal, assistant principal and school resource officer.  The school's administrative assistant provided the following testimony in the trial court:

 

One of the things I heard as [the student] was walking in and out, one of the words was bomb. And I’m not sure what he said, I just heard the word bomb. Another of the words that he used was killing someone. And at that time, he had already come back in and grabbed the scissors that we have in the office and he said I could just kill someone. And he was laughing and he sa[id] I’m just kidding. And he set them back down and he went and sat back down. And he got up again and he was back out again. And then he came back and he was laying on the floor again. It was just continual.  

 

The SD Supreme Court conducted an extensive review of the record, concluding:

 

Because the evidence in the record is insufficient to support a determination that either of I.T.B.’s statements constitute a terroristic threat, we reverse the circuit court’s adjudication of I.T.B. as a delinquent child.

 

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

 

This decision may be accessed at

 

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

 

No Decision on Recreational Marijuana, LWOP on 2nd Degree Murder Aff'd

 

NOTE: Notwithstanding assertions by various individuals reported in the media this week, the SD Supreme Court did not release its decision on Recreational Marijuana this morning. 

 

The SD Supreme Court handed down one decision this morning:

 

1. LWOP on Jury Conviction of 2^nd Degree Murder upheld

 

Summary follows:

 

STATE v. LITTLE LONG, 2021 S.D. 38: Defendant was found guilty by jury of 2^nd degree murder and 1^st degree manslaughter.  The jury acquitted Defendant of 1^st degree murder.   Trial Court sentenced Defendant to Life Without Parole.  The SD Supreme Court affirmed, rejecting Defendant’s appellate assertions of improper admission of impeachment evidence, insufficiency of evidence and non-compliance with SD’s 180 day speedy trial requirement.  This decision is unanimous, 5-0, with opinion authored by Justice Kern. 

 

This decision may be accessed at

 

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

 

 

 

Two New Decisions today, both 3-2 Rulings, SD Supreme Court

 

The SD Supreme Court handed down two decisions this morning. Both of these decisions are 3-2 decisions, with Justice Kern authoring a dissenting opinion in which Justice DeVaney concurs.  Chief Justice Jensen authors the majority opinion in each case, in which Retired Chief Justice Gilbertson concurs:

 

1)    Application of 180 speedy trial issue resolved for State;

2)   Restrictive Covenants in Deadwood resolved in favor of short term rentals during Sturgis Rally

 

Summaries follows:

 

STATE v. LANGEN, 2021 S.D. 36: The sole issue in this appeal relates to the State’s failure to comply with the 180 day speedy trial requirement found in SDCL 23A-44-5.1 in connection with the arrest of the Defendant in Minnehaha County.   The Minnehaha County arrest triggered a probation violation proceeding in Aurora County, with Defendant being sentenced to 4 years in prison by the Aurora County Court.   As a result of Defendant’s incarceration, he was unable to present himself for a UA, resulting in an arrest warrant being issued in Minnehaha County.  In regard to the Minnehaha County case, Defendant requested a 180 speedy trial rule dismissal.  The trial judge ruled for the State on the basis that the delay was caused by the Defendant’s “absence or unavailability.”  The resolution of this issue involves the application of SDCL 23A-44-5.1(4)(d) and the obligation, if any, on the Defendant to notify the Minnehaha County authorities that he is incarcerated elsewhere in the state.

This case was submitted on the briefs to the Court on briefs on April 20, 2020.  Authorship of the Court’s opinion was reassigned on February 19, 2021.  The SD Supreme Court affirmed the lower court in a 3-2 decision.  The majority opinion is authored by Chief Justice Jensen. Retired Chief Justice Gilbertson participated in this decision, with his vote included in the 3 justice majority.  

 

Justice Kern filed a dissenting opinion in which Justice DeVaney concurred.  Justice Kern’s dissent is premised upon the application of the presumption found in SDCL 23A-44-5.1(5). From Justice Kern’s dissenting opinion:

 

[¶48.]  Because the period of delay during which Minnehaha County officials erroneously believed [Defendant] was out of custody with a warrant pending was improperly excluded, prejudice to [Defendant]  is presumed. The case must be dismissed unless the prosecution successfully rebuts this presumption. SDCL 23A-44-5.1(5).  

 

WILSON v. MAYNARD, 2021 S.D. 37:  The nature of this dispute and its resolution is described in the opening paragraph of the opinion:

 

[¶1.] Rory and Kristen Maynard (Maynards) built a home in a residential development near Deadwood, South Dakota, and rented the home to short-term guests. The owners of an adjacent property, Robert and Sharlene Wilson (Wilsons), sued Maynards alleging that Maynards violated restrictive covenants limiting use of properties in the development to “residential purposes.” The circuit court granted summary judgment in favor of Maynards, holding that short-term rentals were a residential purpose, and denied Wilsons’ request for injunctive relief. We affirm.

 

The circumstances causing aggravation to the Plaintiffs can be discerned in the 9^th paragraph:

 

[¶9.] Maynards rented the Property nine times in 2018. In 2019, they rented the Property nearly every day between June and September. During the 2018 and 2019 Sturgis Motorcycle Rallies, they rented the Property to twelve guests at once; and the Property has housed as many as twenty guests at a time. Maynards charge $500 for weekday stays, $650 for weekend stays, and up to $1,200 per day during the Sturgis Rally.

 

The trial court held that the short-term rentals were permissible, not in violation of the covenants. This case was submitted on briefs on November 16, 2019. The SD Supreme Court affirmed in a 3-2 decision.  The Court’s opinion is authored by Chief Justice Jensen, with Retired Chief Justice Gilbertson and Retired Justice Konenkamp (sitting in lieu of Justice Salter) concurring. 

 

Justice Kern filed a dissenting opinion, in which Justice DeVaney concurs.

  

 These decisions may be accessed at

 

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

 

open-door doctrine, certified question answered

 

The SD Supreme Court handed down two decisions this morning:

 

1. Defendant loses to “open-door doctrine,” notwithstanding a change in the law;

 

2. Certified question on insurance coverage answered with 3-2 ruling

 

Summaries follows:

 

STATE v. NOHAVA, 2021 S.D. 34:  The opening paragraph of the Court’s opinion nicely summarizes the result and holding in the lower court and on appeal:

 

[¶1.] After a confidential informant purchased methamphetamine from Coye Nohava during a controlled drug buy, a grand jury indicted Nohava on one count of distributing a controlled substance and one count of possession of a controlled substance. Nohava was convicted on both counts after a jury trial. The evidence at trial centered on the testimony of the confidential informant. Nohava appeals, asserting the circuit court abused its discretion by allowing the informant to testify about other act evidence after finding Nohava opened the door to such testimony. Nohava also contends the circuit court erred in denying his motion for judgment of acquittal.

 

This decision is unanimous (5-0), with Justice DeVaney authoring the Court’s opinion.  Chief Justice Jensen filed a brief concurring opinion in which he addresses the fact that the law has changed in regard to the “open-door doctrine” which is now more limited, stating in ¶ 36:

 

The evidence of [Defendant’s] assault of [the female confidential informant] may have violated this rule, but given the state of our open-door doctrine at the time of trial, there was no abuse of discretion.

 

SAPIENZA v. LIBERTY MUTUAL INSURANCE, 2021 S.D. 35:  This dispute revolves around the seemingly simple question as to whether or not damages incurred as a result of the insured’s compliance with a state court injunction constitutes compensable damages under the insured’s Homeowners Policy and the insured’s Personal Liability Policy.  The facts in (involving the new construction of a home and its impact on a neighbor’s home) trace back to 2014 and include litigation in South Dakota state court, with a prior opinion by the SD Supreme Court in 2018.  Thereafter the insureds “filed suit in federal district court against [their insurer] alleging a number of claims, including breach of contract based on [their insurer’s] failure to provide coverage for the costs the [insureds] incurred to tear down their newly constructed home.”  The Federal Court certified the issue (“Do the costs incurred by the [insureds] to comply with the injunction constitute covered ‘damages’ under the Policies such that Liberty Mutual must indemnify the [insureds] for these costs?”)  to the SD Supreme Court.  The case was orally argued in the SD Supreme Court before the Pandemic, on November 5, 2019.  Authorship of the Court’s opinion was re-assigned some 17 months later,  April 9, 2021.  Today’s decision answers the question in the affirmative, holding yes (there is insurance coverage for these damages).  The Court’s ruling is a 3-2 decision, with Justice DeVaney authoring the majority decision (by virtue of the re-assignment).  Justice Salter filed a dissenting opinion, as to which Chief Justice Jensen joins.

 

These decisions may be accessed at

 

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