New Exterior for Deadwood's Gunslinger Saloon Denied

 

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

 

1. New Exterior for Deadwood’s Gunslinger Saloon Denied

 

KIRWAN v. CITY OF DEADWOOD, 2023 S.D. 20: Owner of the Gunslinger Saloon in Deadwood renovated the exterior of the building with first seeking approval from the Historic Deadwood Commission.  After the fact, owner sought permission and was denied by the Commission because the new look was not consistent with the original 1879 appearance that was sought to be preserved.  The Commission also ordered the Owner to remove the new façade.  The Circuit Court affirmed the Commission.  This decision affirms the Circuit Court’s ruling.  The decision is unanimous, with opinion authored by Justice Salter.

 

This decision may be accessed at

 

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

Proving “nighttime” in Rapid City during July

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

 

1)    Proving “nighttime” in Rapid City during July

 

STATE v. ROBERTSON, 2023 S.D. 19: Defendant was convicted by jury of 1^st degree burglary, aggravated assault, and grand theft. The SD Supreme Court affirmed.  The facts show the incident occurred around 4:30 AM in Rapid City.  Two justices dissented on the 1^st degree burglary conviction.  Justice Myren authored the Court’s opinion as to the issues other than 1^st degree burglary.  Justice DeVaney authored the Court’s opinion as to 1^st degree burglary.  With respect to the 1^st degree burglary conviction, Justice Myren wrote a dissenting opinion, as to which Chief Justice Jensen agreed, stating that the state failed to produce evidence that the burglary occurred during “nighttime” as defined by SDCL 22-32-15.  A burglary which doesn’t occur during “nighttime” can only be prosecuted as 2^nd degree.  Circuit Judge Stoltenburg sat on this case, in lieu of Justice Kern.

 

This decision may be accessed at

 

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

 

 

 

Two New Decisions by the SD Supreme Court today

 

The SD Supreme Court handed down two decisions this morning:

 

1. Defendant’s utilization of clinical psychologist prohibited;

 

2. Attorney Discipline proceeding;

 

 

Summaries follows:

 

STATE v. HERNANDEZ. 2023 S.D. 17: In this murder prosecution of a mother in regard to the death of her child, the trial entered a preliminary order which would permit the testimony of a clinical psychologist to testify as to the capacity of a 10 year old as the alleged perpetrator, with testimony to be “based in substantial part upon an analysis of the ten-year-old’s prior behavior and other acts.”  The state was permitted to take an intermediate appeal which was successful, with the Court holding:

 

[¶46.] While Dr. Stokes has specialized knowledge regarding the behaviors of children, like N.M., who have been exposed to domestic violence, the opinion he offers and the underlying acts on which his opinion hinges fall within a specific category of evidence that must be scrutinized under Rule 404(a) and (b). Because we have determined that his opinion itself is not admissible under these rules, there is no avenue under Rule 703 by which Dr. Stokes can testify about N.M.’s other acts.

 

[¶47.] Because the circuit court erroneously applied Rule 404(a) and (b) and Rule 703 in allowing the admission of Dr. Stokes’s proffered testimony, the court abused its discretion. Therefore, we reverse the court’s ruling and remand for further proceedings.

 

This decision is unanimous, with opinion authored by Justice DeVaney (on reassignment).  The case was orally argued on April 27 last year, 2022. 

 

DISCIPLINE OF FRAUENSHUH, 2023 S.D. 18:  This is an attorney discipline case, with this attorney having a prior history of disciplinary action against him in Minnesota.  The opinion describes the attorney as “an experienced trial attorney, having tried more than 100 jury trials.” The conduct with is the subject of this proceeding is described in the opinion, as follows:

 

[¶4.] Frauenshuh was privately retained in 2019 to represent K.L. on charges of sexual contact with a child under sixteen and attempted sexual contact with a child under sixteen filed in Lincoln County. Lincoln County Deputy State’s Attorney William Golden was the lead prosecutor on the charges against K.L. The case proceeded to jury trial on October 27, 2020. Before the trial concluded, the circuit court granted Golden’s motion for a mistrial after finding that Frauenshuh had repeatedly violated several court orders and evidentiary rulings. A second trial began on March 8, 2021. During Frauenshuh’s opening statement, the court again found that he violated the court’s prior evidentiary ruling. The jury returned a verdict of not guilty on both counts, and the court entered a judgment of acquittal for K.L. On March 26, 2021, Golden filed a complaint against Frauenshuh with the Board.

 

The Referee assigned to this proceeding recommended a 3 month suspension.  The Court, instead, imposed a 30 day suspension.  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 .

Denny Sandford's Appeal Rejected

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

 

1)    Denny Sanford’s appeal rejected

 

MATTER OF IMPLICATED INDIVIDUAL, 2023 S.D. 16: In an amazingly quick turnaround, the SD Supreme Court has rejected Denny Sanford’s appeal in connection with his request to review search warrant affidavits and to participate in redaction measures prior to being released to the public.  This ruling comes only 14 days after the case was orally argued in Brookings.  In affirming the trial court, the Supreme Court stated:

 

[¶22.]  The circuit court properly applied the provisions of SDCL 15-15A-13 and SDCL 23A-35-4.1 in considering, and ultimately denying, Sanford’s request to inspect and redact the affidavits before they are unsealed. Before ruling on the request, the court thoroughly considered the various statutory and constitutional grounds asserted by Sanford with respect to information that could conceivably be contained in the affidavits. The court’s approach to redaction fell soundly within its discretion, and the court appropriately exercised its discretion to “decide whether there [were] sufficient grounds to prohibit access . . . .” to contents of the affidavits under SDCL 15-15A-13.

 

This decision is unanimous (5-0), with opinion authored by Chief Justice Jensen.  Retired Chief Justice Gilbertson sat on in this case, in lieu of Justice Salter. 

 

This decision may be accessed at

 

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

 

 

Two New Decisions by the SD Supreme Court this morning

 

The SD Supreme Court handed down two decisions this morning:

 

1)    Cooperative Grazing Association Dispute;

 

2)   Assault convictions against ex-wife affirmed, but “harassing and threatening” conduct conviction reversed;

 

 

Summaries follows:

NELSON v. ESTATE OF CAMPBELL, 2023 S.D. 14: This dispute and the judicial rulings are not easily summarized.  Below is the opening paragraph of the opinion:

 

[¶1.] The Estate of Gordon Campbell (Estate) sought to withdraw real property from the Redwater Grazing Association (Redwater), a cooperative grazing association, previously formed by several members, including Campbell, who had contributed property to Redwater. Another member of Redwater, John Nelson, asserted that the Estate was not authorized to remove the land from Redwater. Alternatively, he claimed that he had entered into a contract with the Estate to purchase the land from the Estate. Nelson and Redwater both filed various claims and counterclaims against the Estate and against Jared Capp, another party seeking to purchase the land from the Estate. The circuit court granted specific performance to the Estate, requiring Redwater to deliver the deed for the property to the Estate. The court also granted summary judgment against Nelson and Redwater and dismissed the remaining claims. Nelson and Redwater appeal.1 We affirm in part, reverse in part, and remand.

 

This ruling is unanimous (5-0), with opinion authored by Justice Kern.  If the reader seeks more details, please look at the opinion which may be accessed through the link below.

 

STATE v. PENEAUX, 2023 S.D. 15: Defendant was found guilty, by jury, of six counts in total, five of which related to Aggravated Assault against his ex-wife and the 6^th count was for “threatening and harassing conduct” related to his efforts to get his ex-wife to dismiss the charges while the charges were pending.  The SD Supreme Court affirmed the assault convictions.  But, the Court reversed and vacated the conviction for “threatening and harassing conduct,” holding that while the conduct of the Defendant was “threatening and intimidating,” his activities were not “obscene or lewd, nor can they be construed to suggest a lewd or lascivious act” as required by SDCL 49-31-31(1).   The Court’s opinion is authored by Justice DeVaney.  All five justices agree that the assault convictions should be affirmed.  Justice Salter filed a dissenting opinion as to the reversal of the “threatening and harassing” conviction.

 

These decisions may be accessed at

 

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

 

 

 

 

 

Ingestion not a basis for CGL disqualification

 

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

 Ingestion guilty plea not a basis for CGL disqualification

STANLEY v. DEPARTMENT OF PUBLIC SAFETY, 2023 S.D. 13:  Defendant pled guilty to unauthorized ingestion of a controlled drug or substance.  Defendant’s arrest occurred while he was operating a motorcycle.  DPS notified Defendant that his CGL was disqualified for 1 year as a result of his guilty plea.  The ALJ agreed with DPS.  The Circuit Court reversed.  The SD Supreme Court upheld the Circuit Court, stating:

 

[¶15.] The felony ingestion statute in SDCL 22-42-5.1 prohibits a person from “knowingly ingest[ing] a controlled drug or substance or hav[ing] a controlled drug or substance in an altered state in the body . . . .” There is no evidence or showing that Stanley utilized the motorcycle to commit the crime of ingestion of a controlled substance. The offense as committed by Stanley in this case is therefore not subject to mandatory CDL disqualification within SDCL 32-12A-36(4).

 

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

 

 

This decision may be accessed at

 

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

 

 

Three decisions today by SD Supreme Court

 

The SD Supreme Court handed down three decisions this morning:

 

1. Tort judgment enhanced by $700:

 

2. Work Comp appeal fails due to failure to notify DOL;

 

3. HSC permitted to administer psychotropic medication to patient involuntarily committed.

 

 

Summaries follows:

 

LAMB v. WINKLER, 2023 S.D. 10: Plaintiffs brought tort action for damages to the person of H and to their tractor as a result of decedent rear-ending H when he was driving the tractor.  (Decedent died as a result of this collision.)  Trial was to the Court, not by jury.  Trial court awarded total damages of $36,498.80.  The SD Supreme Court remanded, directing the trial court to increase the award by $700 to cover the cost of a new batter for the tractor.  This decision is unanimous (5-0), with opinion authored by Justice Kern.

 

HUSSEIN v. SHOWPLACE WOOD PRODUCTS INC., 2023 S.D. 11: This is a Work Comp claim. The Administrative Law Judge granted summary judgment to employer and employer’s insurer.  The trial court dismissed the employee’s appeal because Notice of Appeal had not been served on the Dept. of Labor.  The SD Supreme Court affirmed, stating:

 

[¶19.] Because Hussein did not serve his notice of appeal to the circuit court on the Department within 30 days after the ALJ served notice of its amended letter decision, the circuit court properly dismissed Hussein’s administrative appeal. Further, because the circuit court was without subject matter jurisdiction, this Court likewise lacks jurisdiction over the merits of Hussein’s appeal. See Cable v. Union Cnty. Bd. of Cnty. Comm’rs, 2009 S.D. 59, ¶ 52, 769 N.W.2d 817, 833.

 

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

 

 

JOHNSON v. B.T., 2023 S.D. 12: Involuntary commitment patient at Human Services Center (HSC) appeals the trial court’s ruling permitting HSC “to administer psychotropic medication to B.T. for up to one year.”  The SD Supreme Court affirmed in a unanimous (5-0), with opinion authored by Justice Salter. 

 

These decisions may be accessed at

 

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