Thursday, February 25, 2021

SD Supreme Court Affirms Two Criminal Appeals today

 

The SD Supreme Court handed down two decisions this morning:

 

1)    Criminal convictions of rape, kidnapping, etc. aff’d;

 

2)   Criminal Sentencing for child porn aff’d.

 

Summaries follows:

 

STATE v. EVANS, 2021 S.D. 12:  This criminal case is nicely summarized in the opening paragraph of the opinion:

 

[¶1.] Henry David Evans appeals his conviction entered after a jury found him guilty of several charges, including rape, kidnapping, aggravated assault, and burglary. Evans challenges the circuit court’s denial of his pretrial motion to suppress, claiming the state law enforcement officers were without jurisdiction to seize his personal property located on the Pine Ridge Indian Reservation. He further contends the court committed a structural error by substantially deviating from the statutory procedures governing jury selection. Finally, Evans asserts the circuit court abused its discretion in admitting other act evidence from his ex-wife and in admitting an officer’s testimony regarding corroboration of the victim’s account of the incident. We affirm.

 

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

 

STATE v. MILES, 2021 S.D. 13:  Criminal Defendant entered plea of “nolo contendere”  to 3 counts for possession of child pornography.  The trial court imposed a sentence of 10 years in prison, the state penitentiary, with six years suspended on each count, further ordering that counts 1 and 2  be served consecutively with count 3 to run concurrently.  Defendant’s appeal is premises upon a violation of the 8th Amendment’s prohibition against cruel and unusual punishment, urging that his conduct consisted simply of downloading images and that, “he did not produce the child pornography, did not commit sexual acts with minors, and did not have the child pornography in a readily accessible part of his computer.” 

 

The SD Supreme Court affirmed, stating,

 

In recognition of the severity of this conduct, the [South Dakota] Legislature criminalized each act of downloading an image, extending legislative protection to each exploited child in each picture. Possession of these images is an egregious offense because it not only perpetuates the harm to some of the most vulnerable members of our society, but it also invades their privacy and furthers the profit motive of the manufacturers and distributors of child pornography.

 

Particularly damaging for Defendant’s argument on appeal was the trial court’s observations, as described and upheld in ¶ 21 of the opinion:

 

[¶21.]  Prior to imposing the sentence, the circuit court noted that Miles failed to accept responsibility for these offenses. The court found “incredulous,” Miles’s explanation that he may have accidently downloaded the images of child pornography. The court also rejected any inference that the downloads were the result of Miles’s actions while in “a drunken stupor,” when contrasted with his repetitive internet searches using terms designed to locate child pornography. “A defendant’s remorse and prospects for rehabilitation are proper considerations in sentencing.” Because “rehabilitation must begin with the offender’s acknowledgment of personal fault[,] [t]he inability or unwillingness to accept personal responsibility may be considered by a sentencing court as an indicator that a defendant’s rehabilitation prospects are limited.” Blair, 2006 S.D. 75, ¶ 52, 721 N.W.2d at 68 (citation omitted). The circuit court did not err by considering Miles’s lack of remorse and inability to accept responsibility for his criminal conduct. 

 

The Court’s 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 .

 

 

Thursday, February 18, 2021

two new decision by SD Supreme Court

 

The SD Supreme Court handed down two decisions this morning:

 

  1. Solicitation of another to aid and abet 1st degree murder; and

 

  1. Attorney Swier disciplined a 2nd time

 

Summaries follows:

 

STATE v. THOMAN, 2021 S.D. 10:  Defendant sought assistance from a friend in securing a gun so that he could kill the doctor who treated his deceased wife.  Defendant was charged and convicted of criminal solicitation of aiding and abetting first-degree murder.  Defendant’s legal argument -- in the lower court and on this appeal -- is that “one cannot criminally solicit another to aid and abet an offense.”  The SD Supreme Court rejected this assertion and affirmed. The decision is unanimous (5-0) with opinion authored by Retired Chief Justice Gilbertson. 

 

DISCIPLINE OF SWIER, 2021 S.D. 11:  Attorney Swier was suspended from the practice of law in early 2020.  During his suspension Swier engaged in the practice of law. The SD Supreme Court then suspended Swier indefinitely and requested, “the State Bar’s Disciplinary Board to conduct a full investigation of Swier and the Swier Law Firm to determine if Swier or members of the Swier Law Firm committed additional violations of the Court’s Order of Suspension.”  Following investigation and report, the Court found that the incident was singular but intentional.  The Court extended Swier’s suspension an additional 60 days  and further ordered Swier to reimburse the UJS and the State Bar of South Dakota for $8,373.73 in costs and expenses for the initial suspension and $8,915.58 in costs and expenses for this subsequent proceeding. NOTE: it was also found, “the attorney members of Swier Law Firm did not assist or condone any violation of the Court’s order.”  This decision is unanimous (5-0) with opinion authored by Retired Chief Justice Gilbertson.  Circuit Judge Means sat on this case in lieu of Justice Kern. 

 

These decisions may be accessed at

 

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

Tuesday, February 16, 2021

8th Circuit Reject Appeal by Governor Noem, AG and Secretary of State today

 

The 8th Circuit today dismissed appeals by both the State Officials (Governor, AG and Secretary of State) and SD Voice regarding legislatively-imposed restrictive measures related to citizen-initiated ballot measures.  The lower court ruled adversely to the State Officials.  The State’s Appeal is dismissed because of a failure of jurisdiction due to the passage of subsequent legislation.  Nonetheless, the lower court’s adverse ruling for State Officials is permitted to stand (not vacated) due to “public interest” underlying its decision.  The Cross is appeal is dismissed and remanded to the lower court for a ruling on omitted issues. 

A copy of the decision is available at

https://ecf.ca8.uscourts.gov/opndir/21/02/201262P.pdf


Thursday, February 11, 2021

4 new decisions today by the SD Supreme Court

 

Introductory Comments:  Today the SD Supreme Court released 4 decisions. Three of these appeals were submitted more than 15 months ago.  The issues in each case are fairly complex, not subject to brief summaries.  One of the decisions represents a significant split among the views of the Justices.

 

The SD Supreme Court handed down four decisions this morning:

 

  1. Tilting at windmills in Duel County;

 

  1. Destruction of property by law enforcement (split decision);

 

  1. Property tax on 501(c)(3) non-profit corporation;

 

  1. Mechanic’s lien in Lawrence County

 

Summaries follows:

 

HOLBORN v. DEUEL CNTY. BD. OF ADJUSTMENT, 2021 S.D. 6:  This case, involving proposed windmills in Duel County, was orally argued November 4, 2019, over 15 months ago.  The dispute and its resolution before this appeal is described in ¶1 of the opinion:

 

[¶1.] Deuel Harvest Wind Energy, LLC and Deuel Harvest Wind Energy South, LLC (Deuel Harvest) applied for special exception permits (SEP) from the Deuel County Board of Adjustment (Board) to develop two wind energy systems (WES) in Deuel County. Several residents of Deuel County and neighboring counties (Appellees) objected. Following a public hearing, the Board unanimously approved the permits. Appellees petitioned the circuit court for writ of certiorari challenging the SEPs, including a claim that several members of the Board had interests or biases which disqualified them from considering the SEPs. The circuit court determined that two Board members had disqualifying interests and invalidated their votes. The court then reversed the decision of the Board granting the SEPs. Deuel Harvest appeals.

 

The result on appeal is set forth in the concluding paragraph of the opinion:

 

[¶54.] We affirm in part and reverse in part. We affirm the circuit court’s determination that Kanengieter and Brandt did not have a disqualifying interest under the Due Process Clause or applicable South Dakota statutes. We also affirm the circuit court’s determination that the Board regularly pursued its authority when it defined the term “business” in the Ordnance. However, the circuit court erred by invalidating the votes of DeBoer and Dahl. We reverse the court’s decision overturning the Board’s unanimous vote approving the SEPs and reinstate the Board’s decision granting the SEPs.

 

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

 

HAMEN v. HAMLIN CNTY., 2021 S.D. 7:  This case, involving the destruction of property by law enforcement personnel, was orally argued September 30, 2019, over 16 months ago.  The dispute, as resolved at both the trial level and on this appeal is set forth in the opening paragraph of the Court’s opinion:

 

[¶1.] Gareth and Sharla Hamen (the Hamens) filed a complaint against Hamlin County (the County), the Hamlin County Sheriff Chad Schlotterbeck (the Sheriff), and other John Doe deputies after the Hamens’ mobile home was damaged during the arrest of their son, Gary Hamen. The Hamens sought compensation for inverse condemnation and stated a separate claim for deprivation of constitutional rights under 42 U.S.C. § 1983. The parties filed cross-motions for summary judgment. The circuit court granted summary judgment to the County, dismissing the claims without prejudice, but denied the other motions. We granted the petition for discretionary appeal filed by the County and the Sheriff. We reverse the circuit court’s denial of summary judgment on the inverse condemnation claim. We affirm in part and reverse in part the circuit court’s denial of summary judgment on the § 1983 claim.

 

The precise ruling on appeal is set forth in the concluding paragraph of the Court’s opinion:

 

[¶56.] We reverse the circuit court’s denial of summary judgment on the inverse condemnation claim and direct the entry of summary judgment dismissing this claim with prejudice as to the Sheriff and the County. On the Hamens’ § 1983 claims, we affirm the circuit court’s denial of summary judgment on the Sheriff’s qualified immunity for the unlawful entry claim, but we reverse the circuit court’s denial of summary judgment on the Sheriff’s qualified immunity on the excessive force claim. We remand the § 1983 claim against the Sheriff for further proceedings consistent with this opinion.

 

The Court’s opinion is authored by Chief Justice Jensen.  It is not unanimous.  The alignment of the views of the Justices on this case is as follows:

 

[¶57.] KERN, SALTER, and DEVANEY, Justices, and GILBERTSON, Retired Chief Justice, concur on Issue 1.

[¶58.] KERN, SALTER, and DEVANEY, Justices, concur on Issue  2a.

[¶59.] GILBERTSON, Retired Chief Justice, dissents on Issue 2a.

[¶60.] SALTER, Justice, concurs on Issue 2b.

[¶61.] GILBERTSON, Retired Chief Justice, concurs in result on Issue 2b.

[¶62.] KERN, and DEVANEY, Justices, dissent on Issue 2b.

 

Of particular interest is the position of Justice Kern (as to which Justice DeVaney concurs), on the Issue 2b, the excessive force claim, as expressed in ¶65 and ¶72:

 

[¶65.] However, I respectfully dissent from the majority’s decision to dismiss the Hamens’ alternative claim for excessive use of force. In my view, we should instead affirm the circuit court’s order denying the Sheriff’s motion for summary judgment on this issue. This claim should also proceed to trial, where the jury can determine through special interrogatories any disputed issues of fact. The court can then resolve the questions of law.

…

[¶72.] The nature and extent of the force used here is undisputed and well documented. A police drone circled above the scene, capturing some of the incident on video, and the officers involved prepared detailed reports of the episode. The first armored vehicle approached from the west side pulling the front stairs and deck away from the trailer. It then tore off the front door of the trailer with a ram, damaging not only the door but the floor and frame. The second armored vehicle drilled three portholes on the other side through windows and a sliding glass door, destroying the septic system in the process. Minutes later, the drone captured images of Gary walking in the river near the Hamens’ trailer.

 

Justice Kern’s position is supported by 4 color photos included as part of her opinion.

 

WINGS AS EAGLES MINISTRIES, INC. v. OGLALA LAKOTA COUNTY, 2021 S.D. 8: Wings as Eagles Ministries is a 501(c)(3) non-profit corporation under the Internal Revenue Code.  It is exempt from paying sales tax.  This is a dispute over property taxes sought by Oglala Lakota County.  The 1st and last paragraphs of the opinion describe the result of this litigation:

 

[¶1.] Wings as Eagles Ministries, Inc. (Wings) applied for property tax exempt status for the 2014 and 2015 tax years, payable in 2015 and 2016 respectively. Both applications were denied and became final determinations of the property’s exempt status for the affected years. Wings subsequently filed a petition with the Oglala Lakota County Commission (the Commission) seeking an abatement of its property taxes for 2014 and 2015. The Commission denied the petition, and Wings appealed to the circuit court, which affirmed the Commission’s decision. Wings now appeals the abatement decision to this Court. We affirm.

          …

[¶24.] The circuit court correctly recognized that Wings was not exempt from property taxes for 2014 and 2015, and therefore, the Commission lacked authority to consider an abatement under SDCL 10-18-1(3). Moreover, Wings’ estoppel argument is unreviewable because it was raised for the first time on appeal and is otherwise not sufficiently developed in the record. We affirm.

 

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

 

J. CLANCY, INC. v. KHAN COMFORT, LLC, 2021 S.D. 9:  This case involves the assertion of a mechanic’s liens, supported by alternative claims of breach of contract and unjust enrichment, in Lawrence County.  The case was submitted to the SD Supreme Court on the briefs on September 30, 2019, over 16 months ago.  The dispute, as resolved at both the trial level and on this appeal is set forth in the first two paragraphs of the Court’s opinion, as well as the concluding paragraph:

 

[¶1.] J. Clancy, Inc. (J. Clancy), a construction company owned by Jere Clancy, sued Ghazanfar Khan (Khan) and his company, Khan Comfort, LLC (Khan Comfort), seeking enforcement of mechanic’s liens it placed against the property. In the alternative, J. Clancy filed claims for breach of contract and unjust enrichment. Khan Comfort filed several counterclaims, including claims for overpayment and breach of contract.

 

[¶2.] After a bench trial, the circuit court concluded that J. Clancy’s mechanic’s liens were invalid and unenforceable because, in part, they were insufficiently itemized. It also held that a divisible, implied-in-fact contract, rather than an express contract, governed the relationship between the parties. The court rejected J. Clancy’s breach of contract and unjust enrichment claims against Khan Comfort and instead found that J. Clancy breached the contract due to nonperformance. It allowed J. Clancy to recover for the portions of the contract it had actually performed, but it ultimately determined that the value of J. Clancy’s work was less than the payments Khan Comfort had already made. Accordingly, the court ordered J. Clancy to reimburse Khan Comfort for the overpayment. We reverse the circuit court’s decision in part and remand for new determinations regarding breach and damages under the terms of the parties’ contract.

…

[¶45.] The trial court erred in holding that a divisible implied-in-fact contract controlled the parties’ express agreement, and we reverse and vacate the court’s conclusions which hold otherwise. On remand, the court must undertake a determination of breach and remedies available to the parties under the express terms of the September document and any agreed-upon change orders. We also reverse the trial court’s decision to invalidate both mechanic’s liens filed by J. Clancy. After determining the questions of breach and damages on remand, the court should then determine whether J. Clancy is entitled to foreclose on either lien for any amounts covered thereunder to which the court determines it is entitled. Because J. Clancy failed to make arguments regarding its conversion claim to the circuit court, we decline to address the issue on appeal. Finally, because a valid, express contract controls the parties’ obligations, the parties may not proceed for equitable relief.

 

The Court’s 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 .

Thursday, January 28, 2021

Two New Decisions by SD Supreme Court today

 

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

 

  1. Consensual statements made in Indian Country may be used in criminal prosecution in state court;

 

  1. Property tax contest raised by taxpayer partially successful, with taxpayer being awarded appellate attorney fees of $3,000 by the SD Supreme Court

 

Summaries follows:

 

STATE v. CUMMINGS, 2021 S.D. 4:  In this criminal case, the trial court suppressed statements made by Defendant to an investigating officer at Defendant’s home on Indian Trust land.  The statements related to a burglary which occurred outside of Indian Country, a burglary as to which Defendant was subsequently charged in Bennett County state court.    The trial court ruled that the investigating officer lacked authority to investigate crimes in Indian Country.  The SD Supreme Court granted the State’s request for an immediate appeal and reversed, holding that the statements made were in the context of a consensual conversation and, as such, not in violation of the 4th Amendment.   This decision is unanimous with opinion authored by Chief Justice Jensen.  Circuit Judge Myren (now Justice Myren) sat on this case in lieu of Justice DeVaney.

 

PIRMANTGEN v. ROBERTS COUNTY, SOUTH DAKOTA, 2021 S.D. 5:  The facts and issues are initially summarized in ¶1 of the Court’s opinion as follows:

 

[¶1.] After the Roberts County Director of Equalization applied an across the-board 10% increase to the value of James Pirmantgen’s properties for the 2018 tax year, Pirmantgen challenged the tax assessment on 16 properties. The Office of Hearing Examiners held a trial de novo and modified the assessments on four properties but affirmed the County’s remaining assessments. Pirmantgen appealed the hearing examiner’s decision to the circuit court, and after considering the record evidence and arguments of counsel, the court reversed and modified the hearing examiner’s decision. The court set aside the County’s across-the-board 10% increase, modified the assessed values for some properties, and ordered the County to assess the remaining properties at the values existing prior to the 10% increase for the tax year in question. The court also ordered that the County reimburse Pirmantgen for any excess taxes collected. The County appeals. We affirm in part and reverse in part.  

 

With respect to 3 of the parcels, the SD Supreme Court affirmed the circuit court’s ruling that the hearing examiner’s valuations of these three parcels were clearly erroneous and also affirmed the circuit court’s modification of the hearing examiner’s decision to reflect appropriate valuations.

 

With respect to the remaining 10 parcels, the SD Supreme Court found that the trial court, “erred in reversing the hearing examiner’s decision as to these ten properties and in directing the County to reduce the assessments on these properties to the assessed values existing prior to the 10% increase.”

 

In regard to the ability of the trial court to order a refund of taxes paid to the County, the SD Supreme Court stated, “Because the circuit court did not have the authority to order the refund of taxes, it erred in directing the County to reimburse Pirmantgen any taxes paid in excess of what should have been paid.”  Footnote 5 of the opinion explains:

 

The Court has previously recognized that “[t]here are two exclusive methods by which an aggrieved taxpayer may seek recovery for alleged illegal taxes paid. They are the Refund and Abatement Statute, SDCL 10-18-1, and the Protest and Suit Statute, SDCL 10-27-2.” Lick v. Dahl, 285 N.W.2d 594, 599 (S.D. 1979); see also Metropolitan Life Ins. Co. v. Kinsman, 2009 S.D. 53, ¶ 18, 768 N.W.2d 540, 545.

 

The SD Supreme Court also awarded the taxpayer $3,000 in appellate attorney fees, breaking new ground in so far as this is the first opportunity the Court has had to resolve the question “whether an appellee may recover a portion of the attorney fees incurred when the appellee only partially prevails in the appeal of a property assessment.”  In support of the appellate attorney fee award, the Court stated, “Pirmantgen prevailed on a major issue—whether the Director of Equalization’s assessment methodology was contrary to the statutory mandates.”

 

This decision is unanimous by the Court, with opinion authored by Justice DeVaney.  Circuit Judge Hanson sat on this case, in lieu of former C.J. Gilbertson.

 

These decisions may be accessed at

 

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

 

Thursday, January 21, 2021

Defense Verdict in Med Mal case Affirmed by SD Supreme Court

 

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

1)    Defense verdict in Med Mal case affirmed

 Summary follows:

FRYE-BYINGTON v. RAPID CITY MEDICAL CENTER, 2021 S.D. 3:  This is medical malpractice action which resulted in a jury verdict for the Defendants.  The SD Supreme Court affirmed.  The issues are summarized in the 1st paragraph of the opinion:

[¶1.] Jodie Frye-Byington brought a negligence claim against Rapid City Medical Center (RCMC) and three of its doctors (collectively, the Appellees), alleging the doctors did not inform her of a mass growing in her chest for six years. Jodie asserts that the mass caused her persistent issues with her throat and chest that continued until the mass was removed. Following a six-day jury trial, the jury returned a verdict in favor of RCMC and the named doctors. On appeal, Jodie argues that the circuit court abused its discretion in refusing to allow her to call two rebuttal witnesses and refusing her proposed jury instruction on agency. The Appellees also raise several issues by notice of review. We affirm.

The Court’s decision is unanimous, with opinion authored by Justice Salter.  Retired Justice Meierhenry sat on this case in lieu of Justice Kern.

 

This decision may be accessed at

 

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

 

Thursday, January 7, 2021

Two New Decisions by SD Supreme Court today

 

The SD Supreme Court handed down two decisions this morning:

 

1)    Sexual offense conviction affirmed;

2)   Convictions on 3 Counts of Grand Theft by Contractor reversed on basis of failure of evidence

 

Summaries follows:

 

STATE v. LEADER CHARGE, 2021 S.D. 1:  Defendant was convicted by jury of sexual contact with child under 16.  The SD Supreme Court affirmed. The issue on appeals is set forth in the opening paragraph of the opinion:

 

[¶1.] A jury found Sean Leader Charge (Leader Charge) guilty of sexual contact with a child under sixteen. During voir dire, Leader Charge challenged a potential juror for cause. The trial court denied the challenge, and the juror was placed on the jury. After the trial, Leader Charge moved for a new trial claiming he was convicted by a biased jury. The court denied the motion. Leader Charge appeals claiming the trial court abused its discretion by failing to remove the potential juror for cause. We affirm the trial court’s decision. 

 

This decision is unanimous (5-0), with opinion authored by “Retired Chief Justice Gilbertson.”

 

STATE v. SUCHOR, 2021 S.D. 2: This criminal defendant is a contractor who entered into 3 contracts to build homes in Spearfish.  Things did not go well, with criminal charges being filed.  The Jury found the Defendant, “guilty of three counts of grand theft by misappropriation of funds by a contractor.”  Defendant appealed on the basis that the trial court erred in denying his motions for judgment of acquittal for each conviction.  The SD Supreme Court agreed and reversed all three convictions.  This decision is unanimous (5-0) with opinion authored by Justice DeVaney. 

 

These decisions may be accessed at

 

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