EDITOR’S NOTE: The observations contained herein are solely those of the author and do not represent the views of the University of South Dakota. The order of presentation is chronological.


Both the criminal and civil dockets are included. Five of the Top Ten cases are purely civil matters and are both diverse and interesting. Four of the cases are purely criminal matters and represent a pattern which is entirely different from the review made last year for the Top Ten cases of 2019. The remaining case involves the assertion of a legal malpractice claim made by a wrongfully incarcerated inmate and, as such, involves a mixture of criminal and civil aspects.

The new pattern in criminal arena: Last year’s “10 Remarkable Decisions” (reviewing the Supreme Court’s 2019 decisions) included decisions which upheld protections and liberties for individuals — including a ruling enforcing a presumptive probation analysis for a criminal defendant and one enforcing the Fourth Amendment’s fruit of the poisonous tree doctrine. Last year’s jurisprudence also included a decision that applied the rules of procedure so as to avoid the denial of judicial review based upon a technicality, thereby fostering a decision on the merits.

This year is much different. The Top 10 decisions for this year include no rulings which foster protections and liberties for individuals. Rather, the Court’s rulings in 2020 include two decisions that alleviate the burden of the state in regard to the prosecution of felony charges, a decision upholding an extreme sentencing of a juvenile offender and a decision denying a legal malpractice remedy to a wrongfully incarcerated inmate. Also included is a decision denying the right of an appeal to an inmate based upon ambiguously applicable rules of procedure.

1. Are the deliberations of a county commission considered quasi-judicial or quasi-legislative?

It makes a difference. The South Dakota Supreme rarely splits 3-2 in its decisions, but in CARMODY v. LAKE COUNTY BD. OF COMMN’RS, 2020 S.D. 3, we find not only a 3-2 split, but that the deciding vote was cast by Retired Justice Wilbur who joined with Justice Kern and Chief Justice Gilbertson for a majority. The appeal in this case related to the Lake County Drainage Board’s grant of installation permits for drain tile on land in Lake County. The trial court and the Supreme Court affirmed the action of the Lake County Commissioners (sitting as the County Drainage Board) utilizing the “abuse of discretion” standard of review. Justice Jensen filed a dissenting opinion, arguing that the underlying decision was quasi-judicial, not quasi-legislative, and therefore should be reviewed de novo. Justice Salter agreed with Justice Jensen.

2. State’s burden in proving felonious hit and run alleviated.

In STATE v. NEKOLITE, 2020 S.D. 8, the Supreme Court handed down a pro prosecution decision which alleviates the necessity of proving “knowledge of an injury” as an element of felonious “hit and run involving injury” statute. Hit and run involving property damage may be prosecuted as a misdemeanor, but hit and run involving injury or death to a person may be prosecuted as a felony. The court recognized a split among jurisdictions , but opted to follow the view that the state need only show the defendant had knowledge of a collision, as opposed to knowledge of an injury, in connection with prosecution of a felony involving injury or death.

3. Inmate denied appeal by ambiguous rule.

An incarcerated inmate, acting pro se, was denied the opportunity to appeal his parole revocation in ABDULRAZZAK v. S.D. BD. OF PARDONS AND PAROLES, 2020 S.D. 10, on the basis that his notice of appeal was untimely. This decision is supported by a three-justice majority opinion which provides a logical interpretation of the appropriate rules to support the result. Justice Salter filed a dissenting opinion (supported by Justice Jensen) which provides an equally logical interpretation of the relevant rules. Justices Salter and Jensen would hold that the notice of appeal was, in fact, timely as having been filed on the last day permissible. In a situation such as this, it seems that the more judicious approach would be to grant the pro se inmate the opportunity to perfect his appeal.

4. Would-be state record jury verdict reversed.

What appeared to be a record state court jury verdict ($45 million-plus) was reversed by the Supreme Court in JOHNSON v. UPS, 2020 S.D. 39.  This case involved a bad faith claim in a work comp proceeding. The reversal was a unanimous decision by the court. The good news for the plaintiff and for plaintiffs’ attorneys is that this decision leaves intact the bad faith body of law which is fostered by common law in South Dakota, intact. The basis for the reversal was confined to the application of the law, not to the law itself.

5. Extreme sentencing of juvenile upheld.

Both the trial court and the Supreme Court exhibited South Dakota’s tendency to engage in extreme sentencing in STATE v. QUEVEDO, 2020 S.D. 42. This decision upholds a discretionary sentence of 90 years for a juvenile offender who entered a guilty plea. South Dakota remains entrenched on the “lock ‘em up and throw away the key” end of the spectrum for incarceration. South Dakota already exceeds both national and international norms for incarceration, placing the burden of costs of confinement on taxpayers. This decision is especially harsh given evolving societal and judicial notions of criminal justice relating to juvenile offenders.  

6. State’s burden in proving sexual assault alleviated.

The critical issue of whether the state must prove a defendant’s knowledge of lack of capacity for consent in regard to sexual relations with an alleged adult victim presented itself again in STATE v. JACKSON, 2020 S.D. 53. Yes, we know that the state has the burden of proof beyond a reasonable doubt regarding criminal offenses — but, not in all respects. In this decision, the Supreme Court opted for the pro prosecution view that the state’s burden does not include the element that the defendant had knowledge of incapacity to consent. Furthermore, two of the three justices deciding this case indicated a willingness to permanently remove any vestiges of existing law that suggest otherwise.

7. Legal malpractice remedy denied to wrongfully incarcerated inmate.

The client, wrongfully incarcerated for more than three years, was denied the opportunity to assert a legal malpractice claim against his trial attorney in SLOTA v. IMHOFF, 2020 S.D. 55. When finally freed from prison, the client secured competent counsel who promptly brought a civil malpractice claim, only to be told by the Supreme Court that if the client wished to assert legal malpractice, he should have done so while in prison. We learn for the first time here in 2020 — through this decision and through another legal malpractice decision handed down a few months earlier, ROBINSON-PODOLL v. HARMELINK, FOX, & RAVNSBORG LAW OFFICE, 2020 S.D. 5 — that legal malpractice claims are protected by a “statute of repose” and not by a “statute of limitations.” This distinction means, contrary to what was previously and widely believed to be the law, that “the continuing representation and fraudulent nondisclosure doctrines do not toll” the statute.

8. Legislators denied access to federal funds.

By an advisory opinion rendered at the request of Gov. Noem, the Court held, IN THE MATTER OF THE INTERPRETATION OF S.D. CONST. AND STATE LAW RE: ELIGIBILITY FOR CRF GRANT PROGRAMS, 2020 S.D. 58, that Article III, Section 12 of S.D.’s State Constitution prohibits a current state legislator from being eligible to receive funds from the federal COVID-19 Relief Fund. In the words of Sen. Lee Schoenbeck, “This is a big deal. There are several [legislators] that have businesses seriously affected, that will forego six-figure grants due to their $12,000 legislator gig.”

9. Buffalo Chip denied municipal incorporation.

In what appears to be the final chapter in efforts to make Buffalo Chip a municipal incorporation, the decision in STATE v. BUFFALO CHIP, 2020 S.D. 63, holds “no.” This is a 4-1 decision, with Chief Justice Gilbertson dissenting. Although the statutes were subsequently amended to make certain that Buffalo Chip cannot succeed, Chief Justice Gilbertson would have upheld incorporation as a municipality under the previous language of statute because there were 30 or more voters, even though Buffalo Chip lacked 100 residents. This case makes the list of “top ten” because of the notoriety of Buffalo Chip on both state and national levels.

10. Access to files of other patients denied in medical malpractice litigation.

In this medical malpractice action, the trial judge in FERGUSON v. THAEMERT, 2020 S.D. 69, ordered production of redacted documents related to other patients over the prior five years who had undergone similar surgeries by the defendant doctor. But, the S.D. Supreme Court permitted an intermediate appeal and reversed the trial court, holding that the plaintiff was simply going on a “fishing expedition.” The court’s decision is a 4-1 ruling, with opinion by Chief Justice Gilbertson. Justice Kern dissented, stating that the trial court’s ruling was sufficiently, “specific, redacted, protected and limited,” and that, in her belief, the “information [sought] was — at a minimum — reasonably calculated to lead to the discovery of admissible evidence.”  

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