unemployment claim remanded to ALJ; mandatory 10 year sentence upheld

 

The SD Supreme Court handed down two decisions this morning:

 

1. Ruling on unemployment benefits remanded to ALJ for more adequate findings;

 

2. Mandatory 10 year sentence upheld;

 

 

Summaries follows:

 

BANKSTON v NEW ANGUS LLC, 2023 S.D. 27:  Seventy-four (74) year old employee was fired because of alleged sexual harassment of co-employee.  His claim for “reemployment assistance benefits” filed with South Dakota’s Dept. of Labor was denied by the ALJ on the basis that the employee’s conduct was work-related misconduct as per SDCL 61-6-14.1.  The Circuit Court reversed.  The SD Supreme Court reversed and remanded with directions that “ALJ utilize the existing record to issue a new proposed decision that contains sufficient factual findings to enable meaningful appellate review.”  The Court stated:

 

[¶23.] This Court faces the same appellate review dilemma as the circuit court. First, there are no factual findings about the alleged verbal and physical sexual conduct that New Angus asserted as grounds for discharging Bankston. Second, “[w]ithout findings of fact, there is no way to determine the basis for the [circuit] court’s conclusions . . . or whether [any] findings were clearly erroneous.” Id. (alterations and omission in original). Because the ALJ failed to enter findings on the alleged sexual conduct and words, we cannot conduct a meaningful appellate review. See Ridley v. Lawrence Cnty. Comm’n, 2000 S.D. 143, ¶ 13, 619 N.W.2d 254, 259 (“Without findings of fact and conclusions of law on this issue, meaningful appellate review is compromised.”); State Dept. of Pub. Safety v. Eastman, 273 N.W.2d 159, 161 (S.D. 1978) (“The court cannot ‘affirm, modify or reverse the findings and conclusions entered by the agency’ when there are none.”) (footnote omitted) (quoting SDCL 1-26-36). The ALJ was better positioned to judge the credibility of the witnesses, and additional findings would allow a thorough and meaningful appellate review.

 

This decision is unanimous (4-0), with opinion authored by Justice Myren. Justice Salter did not participate. 

 

STATE v HIRNING, 2023 S.D. 28:  Following his guilty plea, Defendant was sentenced to mandatory 10 years as a 2^nd time offender for possession of Meth with intent to distribute.  On appeal, Defendant asserts that the trial court did not appropriately apply SDCL 22-42-2.5 which permits deviation from the mandatory sentence, asserting that he was qualified under all 6 provisions of SDCL 22-42-2.5.  The trial court had indicated that Defendant failed to satisfy SDCL 22-42-2.5 (5) (cooperation with law enforcement through identification of the source of Meth).  Defendant further asserts ineffective assistance of counsel in regard to the overall failure of the Defense to provide the identity of the source of the Meth.  The SD Supreme Court affirmed the trial court’s sentence and declined to entertain the “ineffective assistance of counsel” claim on direct appeal.  This decision is unanimous (5-0) with the opinion authored by Chief Justice Jensen. 

 

These decisions may be accessed at

 

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

Order entered without notice and hearing held void

 

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

 

1. Order (approving elimination of TOD beneficiary designations), entered without notice and hearing, held void

 

ESTATE OF BEADLE, 2023 S.D. 26:  Trial court approved Guardian/Conservator’s action in changing Ward’s investment accounts so as to eliminate two grandsons of Ward’s “spouse-like” friend as TOD beneficiaries.  The SD Supreme Court reversed, stating:

 

[¶18.] At oral argument, all parties acknowledged that the October 23, 2019 order authorizing the conservator to remove the TOD beneficiaries on [Ward’s] accounts was entered without notice to the beneficiaries and without hearing. Consequently, the order is void as a matter of law. See Lessert v. Lessert, 64 S.D. 3, 263 N.W. 559, 561 (1935) (judgment was void when “it was beyond the power and authority of the court which rendered it.”). On remand, the probate court retains full authority to resolve any and all claims regarding the ownership of those accounts.

 

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 .

 

 

Hunting on Private Land without permission is a strict liability offense

 

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

 

1. Hunting on private land without permission is a strict liability offense

 

STATE v. FIDELER, 2023 S.D. 25:  Defendant was convicted, in a bench trial, of “hunting on private land without permission from the owner in violation of SDCL 41-9-1.”  Punishment was the imposition of “a $300 fine with $200 suspended if [Defendant] paid the fine plus $78.50 in court costs by June 9, 2022.”  Defendant appealed, arguing that a mens rea must be established by the State.  The SD Supreme Court affirmed stating:

 

SDCL 41-9-1 is a regulatory measure in nature with a minimal penalty, and the plain language of SDCL 41-9-1 does not contain a mens rea element for the less punitive violation, but SDCL 41-9-8 does require a violation to be knowing for the harsher penalty. Therefore, it is apparent that the Legislature intended SDCL 41-9-1 to be a strict liability offense.

 

The Court’s ruling is unanimous (5-0), with opinion authored by Justice DeVaney.  NOTE: this opinion is 22 pages long, with 41 paragraphs and 9 footnotes. 

 

This decision may be accessed at

 

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

 

 

Effort to Delay Divorce Decree Problematic

 

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

 

1. Effort to Delay Entry of Divorce Decree is problematic

 

LeFORS v. LeFORS, 2023 S.D. 24:  In this divorce action, Husband is on active duty with the U.S. Air Force.  Wife requested Separate Maintenance while also requesting that a decree of divorce be delayed two years until the parties had been married for 20 years so that she could secure benefits available to a military spouse.  The trial court granted Wife Separate Maintenance, awarding her permanent alimony and also made an equitable division of marital property.  On appeal, the SD Supreme Court affirmed in part and reversed in (larger) part, holding:

 

The trial court is not permitted to Divide Property in conjunction with an action for Separate Maintenance, recognizing that the cause of action for Separate Maintenance is separate and distinct from the cause of action for Legal Separation (for which the trial court would be permitted to divide property), stating:

 

[¶26.]  In contrast, the remedy of separate maintenance, provided for in SDCL 25-4-39 and SDCL 25-4-40, is distinct from a legal separation, and there is no authority allowing a circuit court to equitably divide a marital estate when granting separate maintenance.

 

Since the Division of Property award is reversed, the trial court’s decision on permanent alimony is also reversed and remanded.  The determination of alimony must be considered “in light of the property division.”

 

Wife’s request for appellate attorney fees is denied because it was filed after Oral Argument, not “served and filed prior to submission of the action on its merits,” as required by SDCL 15-26A-87.3(2).

 

The Court’s 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 .

Estate dispute with Son of Deceased Addressed

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

 

1. Estate dispute with Son of Deceased Addressed

 

ESTATE OF LYNCH v. LYNCH, 2023 S.D. 23:  Father had been a lifelong farmer on 675 acres located close to Vermillion, running a “successful crop and cattle operation on approximately 675 acres of farmland near Vermillion.” Estate of father sued Son “alleging claims for fiduciary fraud, conversion, breach of fiduciary duty, and elder exploitation.”  Son counterclaimed against “the Estate for conversion, among other claims.”  Jury ruled for Son on Estate’s claims against him; and, the trial court entered judgment as a matter of law in favor of Son on his counterclaim for conversion.   On appeal, the SD Supreme Court rendered a partial victory for the Estate, holding:

 

[¶58.] We reverse and remand the judgment as to the Estate’s claims involving the two payable-on-death CDs [Son] deposited in his individual account. On remand, the circuit court shall enter judgment as a matter of law for compensatory damages of $31,590.22, plus prejudgment interest, on the Estate’s claims for breach of fiduciary duty and conversion. Based upon this disposition, the Estate’s claim for punitive damages on this portion of the Estate’s claims remains an open question on remand. The remainder of the judgment on the Estate’s claims and [Son’s] claim for conversion is affirmed.

 

The Court’s 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 .

Suppression Order Reversed: CARES Act funds NOT subject to repayment

 

The SD Supreme Court handed down two decisions this morning:

 

1. Suppression of Evidence Order Reversed;

 

2. CARES Act funds NOT subject to repayment;

 

 

Summaries follows:

 

STATE v. GHEBRE, 2023 S.D. 21:  Defendant was charged with 3^rd degree Rape and Sexual Contact with person incapable of consent.  The trial court sustained the Defendant’s Motion to Suppress Statements made by Defendant during the time a search warrant was being executed at his premises.  The trail court relied, in part, upon “an obvious language barrier” between the police officer and Defendant.  State sought an Intermediate Appeal. The SD Supreme Court reversed.  This decision is a 4-1 ruling, with the Court’s opinion authored by Justice Kern. Justice Myren “dissents without a writing.”  

 

BRACKEN v. DLR REEMPLOYMENT ASSISTANCE DIVISION, 2023 S.D. 22:  Owner of Bed ‘N Breakfast in Custer County recovered $14,080 in Pandemic Unemployment Assistance (PUA) benefits under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).  State Agency re-considered and sought repayment on the basis of its interpretation of being “unemployed.” Both the ALJ and the trial court ordered repayment.  The SD Supreme Court reversed, stating:

 

[¶28.] [T]he  basis identified by the ALJ for Bracken’s PUA ineligibility was what we have concluded to be an erroneous interpretation and application of the Self-Employment Rule.

 

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

 

These decisions may be accessed at

 

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

 

 

8th Circuit Affirms dismissal of suit against Meade County

 

The underlying controversy in this case (collapsing ground under homes) has garnered much publicity West River and elsewhere.  

 

Aga, et al. v Meade County:  One hundred + homeowners filed suit against Meade County in federal court “for letting their neighborhood be built over a mine.”  The trial court dismissed the complaint.  The 8^th Circuit affirmed the dismissal “for the reasons given by the district court.”  The 8^th Circuit opinion is a one-paragraph per curiam opinion, the entirety of which is set forth here:

 

A group of homeowners appeal the dismissal of their due-process claim against Meade County for letting their neighborhood be built over a mine. See 42 U.S.C. § 1983. Having carefully reviewed the record and the parties’ arguments on appeal, we conclude that the complaint failed to state a claim. See Kruger v. Nebraska, 820 F.3d 295, 301–03 (8th Cir. 2016) (reviewing the failure to state a claim de novo and explaining that the state-created-danger doctrine only applies to“immediate[] and proximate harm” (quotation marks omitted)); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 733 (8th Cir. 1993) (discussing when a harm is “too remote” in time). We accordingly affirm for the reasons given by the district court. See 8th Cir. R. 47B.

 

The Clerk’s summary is set forth below.   

Current Opinions are for Monday, May 08, 2023 

DISCLAIMER:  The following unofficial case summaries are prepared by the clerk's office as a courtesy to the reader.  They are not part of the opinion of the court.

223046U.pdf     05/08/2023  Kalyn Aga  v.  Meade County

   U.S. Court of Appeals Case No:  22-3046

   U.S. District Court for the District of South Dakota - Western   

   [UNPUBLISHED] [Per Curiam - Before Loken, Benton, and Stras, Circuit 

   Judges] 

   Civil case - Civil rights. Dismissal affirmed without comment.