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EDITORS NOTE: The observations contained herein are solely those of the authors and do not represent the views of the University of South Dakota.

The South Dakota Supreme Court had an intriguing year, to the satisfaction of some and frustration of others.

This year, the Top Ten Remarkable Decisions from the South Dakota Supreme Court are listed in ranked order, with top decision listed first as no. 1, the second most remarkable listed as no. 2, etc. The analysis and compilation of these decisions belongs to the authors. In that regard, preparation for this article was assisted and facilitated by an informal survey circulated among the members of USDLAW, an electronic listserve which serves the legal community in South Dakota.

No. 1. Untimeliness of Decision Overshadows Amendment A ruling

William Gladstone stated in his 1868 comments in the House of Commons, Justice delayed is justice denied.

Many say that this is what happened in the Amendment A litigation. In Thom & Miller V. Barnett Et Al./Election Contest As To Amendment A, 2021 S.D. 65, the trial court ruled that the voter-initiated Constitutional Amendment (encompassing recreational marijuana usage) was improper. The proponents of the amendment appealed, looking to the Supreme Court to correct the wrong asserted to be done by the trial judge.

Would the high Court respond? Yes, after a very long while.

Eventually, the Supreme Court held, by a vote of 4-1, that the voter-initiated Amendment A was invalid because it violated the single subject requirement in the South Dakota Constitution. Proponents of Amendment A vigorously argue that this decision wrongfully overturns the will of the people. There are rumors that the Justices who voted in favor of this decision may face organized opposition in retention elections.

The most remarkable aspect of this decision is not its holding but the delay of close to seven months between submission of the issues and the Courts ruling. The case was orally argued on April 27, 2021, with the decision being released to the public on Nov. 24, 2021. The wheels of justice ground very slowly on this one, disappointing a broad range of communities voters, legislators, governmental entities, and the media. There was a failure by the judicial system to respond in a timely fashion.

No. 2. Tourism reigns supreme

Just exactly how much does South Dakota cater to tourism? This question underlies the decision in Wilson V. Maynard, 2021 S.D. 37.

Homeowners near Deadwood objected to their neighbors usage of their home as an Airbnb based upon restrictive covenants for homes in this development. The restrictive covenants limit the usage to residential purposes. The home in question was rented [out as an Airbnb] nearly every day between June and September [in 2019]. 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. [The owners charged] $500 for weekday stays, $650 for weekend stays, and up to $1,200 per day during the Sturgis Rally.

In a split decision, three justices of the S.D. Supreme Court determined that the short-term rentals were permissible.

In a survey put forward to South Dakota lawyers, this decision was voted to be one of the most remarkable decisions of 2021. One responding lawyer commented that this decision provides, Important legal input into the relationship of AirBnbs in the context of residential development, residential zoning, and residential uses. Other than the Amendment A litigation, this is the case that I have talked about the most at work and at home.

No. 3. We protect our workers

Anderson V. Tri State Construction, 2021 S.D. 50: This decision permits an injured worker to utilize South Dakotas Workers Compensation laws to seek recovery for injury sustained in Wyoming. The employer is a South Dakota corporation with headquarters in South Dakota, but the injury occurred in Wyoming and the injured worker initially filed a work comp claim there, receiving temporary total benefits under Wyoming law. The employee then shifted her claim to South Dakota to request permanent total disability benefits under the more liberal South Dakota law because Wyoming law would only permit benefits for 80 months. Both the South Dakota Department of Labor and the trial court refused to allow the employee to proceed on the basis of a lack of jurisdiction.

The South Dakota Supreme Court reversed, holding, South Dakota has a substantial connection to [employee and employers] employment relationship sufficient to provide authority to adjudicate [the employees] claim.

This decision is important because it portrays the courts unwavering desire to protect South Dakota workers in the face of strong resistance by the insurance industry.

No. 4. We really do protect our workers

Billman V. Clarke Machine, Inc., 2021 S.D. 18: Here, the South Dakota Supreme took a deep dive into the underlying work comp claim and found that this 62-year-old employee was entitled permanent total disability benefits as a result of a work-related injury which necessitated the amputation of a portion of his left leg. Both the South Dakota Department of Labor and the trial court ruled for the work comp insurer, finding that the employee was employable.

Kudos to the S.D. Supreme Court for its unanimous holding that the Department of Labors position was clearly erroneous.

No. 5. Civil disputes dont belong in criminal court

State V. Suchor, 2021 S.D. 2: What was primarily a civil dispute between three builders and a contractor landed in criminal court by way of a grand jury. At a jury trial, the defendant was found guilty of three counts of grand theft by misappropriation of funds.

Taking another deep dive into the facts, the South Dakota Supreme Court reversed, holding that the defendant was entitled to a Judgment of Acquittal.

This decision makes the list because it not only demonstrates the courts willingness to analyze underlying facts, but it also helps curb the propensity to allow civil parties to utilize South Dakotas criminal justice system for civil disputes.

No. 6. More encroachment on tribal sovereignty

In decisions handed down in 1990 and 2004, the South Dakota Supreme Court established the rule of law that a state law enforcement officer is not permitted to intrude upon reservation territory in the pursuit of a suspect and to gather evidence without a search warrant or tribal consent.

This rule was significantly altered in State V. Cummings, 2021 S.D. 4. In Cummings, the trial court suppressed statements made by the defendant to an investigating officer at the defendants home located on Indian Trust land. The statements related to a burglary that occurred outside of Indian Country. The trial court ruled, under existing precedent, that the investigating officer lacked authority to investigate crimes in Indian Country.

The S.D. Supreme Court took the case on an intermediate appeal and reversed. The court held that the statements made were in the context of a consensual conversation and, as such, not in violation of the Fourth Amendment. In reaching this holding the Court side-stepped precedent stating, In re-examining [earlier] decisions, we conclude that [they] incorrectly conflated jurisdictional principles associated with tribal sovereignty and individual rights afforded by the Fourth Amendment.

No. 7. Can law enforcement really use excessive force without civil ramification? Yes, by a vote of 3-2.

In HAMEN v. HAMLIN CNTY., 2021 S.D. 7, we find a situation where law enforcement personnels utilization of an armored vehicle rendered $18,778.61 worth of damage to a residential trailer.

As pointed out in the dissenting opinion, this destructive force was invoked even though no one was barricaded inside with hostages or shooting at law enforcement or even threatening to shoot. Law enforcement did not take incremental steps to clear the trailer, but rather chose to tear [it] apart absent an immediate threat. The trial court permitted an excessive force claim to stand against the sheriff.

The S.D. Supreme Court granted an intermediate appeal and held that, as a matter of law, that the sheriff was entitled to a dismissal of excessive force claim. This decision is based upon a 3-2 split of the Justices. The two-justice dissenting opinion presents four color photos of the damaged trailer and states, the resulting damage to the trailer was intolerable in its intensity and unnecessary to execute the warrant at issue.

No. 8. Another Excessive Force situation when will it end?

Another glimpse of excessive force is found in Interest of N.A., 2021 S.D. 57, where a minor child was adjudicated as a delinquent based upon allegation that she assaulted a police officer.

The S.D. Supreme Court reversed and remanded, finding that the police officer used excessive force in the events which prompted the juvenile to react. The court stated:

[22.] Based upon our de novo review of this constitutional issue, and after considering the totality of the circumstances, we conclude Officer Bassett used excessive force to detain N.A. when he grabbed and pulled a non-threatening, non-fleeing, and non-resisting female teenager to the ground in a dark room, without warning.

The court further held that the trial court did not properly analyze and consider the juveniles claim of self-defense.

Note: This decision does not deal with a claim for damages, but simply acknowledges the utilization of excessive force against a minor.

No. 9. State permitted to renege on plea agreement

In State V. Guziak, 2021 S.D. 68, the state agreed to sentence cap of 180-days in jail in exchange for defendants guilty plea to abuse or cruelty to minor. But at sentencing, the state changed course, arguing that the defendant, has a history that is egregious and warranting a hefty sentence. The trial court imposed a 12-year penitentiary sentence with 8-years suspended on the child abuse conviction.

In a 4-1 ruling, the S.D. Supreme Court upheld this result, applying the plain error standard of review. The dissents approach (which we believe is more appropriate) asserted that the unique facts of this case present a special category of cases in which prejudice need not be shown under the plain error standard of review.

No. 10. Lock him up and throw away the key? Not so fast Imperfect Self-Defense recognized as Defense

The trial court went too far by imposing a sentence of 124 years in State V. Mitchell, 2021 S.D. 46. The defendant, originally charged with first- degree murder, pleaded guilty to reduced charge of first-degree manslaughter. State recommended sentence of 60 years. The victims family requested sentence of life imprisonment. The trial court sentenced defendant to 124 years.

The S.D. Supreme Court reversed and remanded, stating that, in order to accurately assess the nature of [Defendants] conduct, the [trial] court must consider the fact that he was reacting to a threat posed by [the Victims] own assaultive conduct. This opinion discusses, for the first time in South Dakota jurisprudence, the notion of an imperfect self-defense which is described in 36 as follows:

Contrasted from a perfect self-defense claim where the defendant is free from fault in bringing about difficulty with his adversary and reasonably believe[d] he needed to respond to an adversarys threat with deadly force, an imperfect self-defense presents manslaughter as a different option for criminal liability, short of murder and without the potential of an outright acquittal. Wayne R. LaFave, Substantive Criminal Law, 15.3(a) (2020). The reason for the imperfection can either be the defendants own fault in bringing on the difficulty or the unreasonableness of [his] honest but erroneous belief that he is in danger of serious or fatal injury which he can prevent only by killing the victim. Id.

The incident resulting in the victims death was captured on video recording and reviewed by both the trial court and the SD Supreme Court. The Courts opinion described the underlying facts as follows:

After a brief confrontation with Lucas Smith at a local bar, Jameson Mitchell armed himself with a handgun and encountered Smith in a nearby alley. Smith ran toward Mitchell, shouting for Mitchell to shoot him. After taking a few steps back, Mitchell fired at the charging Smith, fatally wounding him.

We recognize that selection of the Top Ten decisions is subjective. The proverbial saying that reasonable minds may differ certainly comes into play. In that regard, we would like to point out that the following decisions were considered as being viable nominations, but ultimately left out of our Top Ten list. These additional decisions might appropriately be awarded the title of Honorable Mention: State V. Langen, 2021 S.D. 36 (3-2 decision limiting the speedy trial requirement of SDCL 23A-44-5.1, with the authors preferring the analysis of the two-Justice dissent); State V. Reeves, 2021 S.D. 64 (establishing a flexible rule of evidence for admission of surveillance video); Patterson V. Plowboy, LLC, 21 S.D. 25 (limiting opportunity for appellate review under rule 54(c)); State V. Klinetobe, 2021 S.D. 24 (addressing sentencing standards); Matter of Implicated Individual, 2021 S.D. 61 (application of open records laws to search warrants and supporting affidavits).

Professor Emeritus Roger Baron, USD School of Law, has served as the unofficial reporter for South Dakota Supreme Court opinions for over a decade, providing weekly summaries of newly released opinions. He also maintains and operates USDLAW, an electronic listserve which serves the legal community in South Dakota.

Lori Goad graduated with honors from USD Law School in 2017 and served as judicial clerk for the Fourth Judicial Circuit upon graduation. She currently works as Assistant Public Defender in Pennington County.

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