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Part Two The South Dakota Constitution and Commentary, Art.V Judicial Department

From: The South Dakota State Constitution

Patrick M. Garry

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

(p. 101) Article V  Judicial Department

Section 1  Judicial Powers

The judicial power of the state is vested in a unified judicial system consisting of a Supreme Court, circuit courts of general jurisdiction and courts of limited original jurisdiction as established by the Legislature.

The 1972 amendments revised the entire Article IV. In reorganizing the article, the 1972 amendments established a unified judicial system and made numerous changes throughout the Article.

In Section 1, the 1972 amendment inserted the language “of general jurisdiction” after the term “circuit courts.” The 1972 amendment also substituted the reference to inferior courts of limited original jurisdiction for the previous language of “county courts, and justices of the peace, and such other courts as may be created by law for cities and incorporated towns.”

Using separation of powers doctrines to interpret this article, the South Dakota Supreme Court has ruled that the imposition of punishment as well as the power to award damages in tort actions is a judicial function reserved to the courts (O’Toole v. Board of Trustees of South Dakota Retirement System, 2002). As the court has stated, it is not the judiary’s task to revise or amend, via judicial opinions, statutes or to liberally construe a statute so as to avoid a seemingly harsh result, where such action would contradict the plain meaning of the statute under construction (Hannon v. Weber, (p. 102) 2001). Courts are not free to overrule legislative values and may not set up their judgment against a legislative determination (Breck v. Janklow, 2001). The courts have no legislative authority and should avoid any usurpation of legislative powers or any entry into the legislative field (Petition of Famous Brands Inc., 1984). If a statute appears on its face to be constitutional and valid, a court may not inquire into the motives of the legislature (McFarland v. Barron, 1969). The supreme court can be concerned only with the power of the legislature to adopt legislation, not with its wisdom (Clem v. City of Yankton, 1968).

Section 2  Supreme Court

The Supreme Court is the highest court of the state. It consists of a chief justice and four associate justices. Upon request by the Supreme Court the Legislature may increase the number of justices to seven. All justices shall be selected from compact districts established by the Legislature, and each district shall have one justice.

The 1972 amendment combined provisions of the former Sections 5, 6, and 11. The 1972 amendment also provided for a chief justice, authorized increasing the number of justices to seven, deleted a provision for election by the electors of the state at large, and deleted provisions establishing the original districts.

Section 3  Circuit Courts

The circuit courts consist of such number of circuits and judges as the Supreme Court determines by rule.

The 1972 amendment substituted this section for former Sections 16 and 17, which established the original circuits and authorized the legislature to change the number of circuits and judges.

Section 4  Courts of Limited Jurisdiction

Courts of limited jurisdiction consist of all courts created by the Legislature having limited original jurisdiction.

In the original Constitution, Sections 19 through 21 of Article V provided for county courts and their jurisdiction. Section 22 applied to the jurisdiction of the Justice of the Peace, and Section 23 provided for police magistrates and their jurisdiction. A 1906 amendment added provisions for municipal courts. In 1966, amendments to former Section 19 authorized the South Dakota Supreme Court to create county court districts and deleted from former Section 20 a provision limiting county court jurisdiction to $1,000 except in (p. 103) probate, guardianship and decedents’ estate cases. The 1972 amendments substituted the present Section 4 for the former Sections 19 through 23.

Section 5  Jurisdiction of Courts

The Supreme Court shall have such appellate jurisdiction as may be provided by the Legislature, and the Supreme Court or any justice thereof may issue any original or remedial writ which shall then be heard and determined by that court. The Governor has authority to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power and upon solemn occasions.

The circuit courts have original jurisdiction in all cases except as to any limited original jurisdiction granted to other courts by the Legislature. The circuit courts and judges thereof have the power to issue, hear and determine all original and remedial writs. The circuit courts have such appellate jurisdiction as may be provided by law.

Imposition or execution of a sentence may be suspended by the court empowered to impose the sentence unless otherwise provided by law.

The 1972 amendments combined provisions of former Sections 2, 3, 13, 14, and 39, and also subjected the appellate jurisdiction of the supreme court to legislative definition. Regarding the provisions in Section 5 concerning jurisdiction by the supreme court, the 1972 amendment deleted language specifying the types of cases over which the supreme court may exercise jurisdiction. However, as the court stated in Burns v. Kurtenbach (1982), that 1972 amendment in no way limited the powers granted by prior constitutional provisions relating to the original jurisdiction of the court. Therefore, the court in Burns found that it did have original jurisdiction over an action challenging the validity of certain school board candidates’ nominating petitions.

As this section reveals, the supreme court has only such appellate jurisdiction as may be provided by the legislature and the state constitution (Double Diamond Construction v. Farmers Coop. Elevator Association of Beresford, 2003). Subject matter jurisdiction cannot be conferred by consent of the parties. Moreover, the supreme court may raise the issue of appellate jurisdiction on its own motion, without waiting for a motion from one of the parties. The supreme court has both a constitutional and statutory authority to issue writs of prohibition to stop the proceedings of any tribunal, when such proceedings are without jurisdiction or outside the power of authority conferred by law upon the tribunal (Sioux Falls Argus Leader v. Miller, 2000). (The jurisdiction of the supreme court to review legislative election results is discussed in more detail under Article III, Section 9.)

Except in very limited situations, the supreme court cannot give advisory opinions. The provision for advisory opinions in Section 5 is triggered only by some “important question of law” involved in the exercise of executive functions, or upon some “solemn occasion” (In re Matter of the Construction of Article (p. 104) III, Section 5 of the South Dakota Constitution, 1991). Factors in determining whether a request by the governor presents a “solemn occasion” in which the supreme court can give an advisory opinion include whether an important issue of law is presented, whether the question presents issues that are pending before the court, whether the matter involves prior rights or issues of general application, whether alternative remedies exist, whether facts and opinions are final or ripe for advisory opinion, whether the issue will have significant impact on state government or the public in general, and whether the court has been provided an adequate amount of time to consider the question (In re Janklow, 1999). Moreover, the governor’s power to require an advisory opinion from the supreme court is confined exclusively to such questions as may raise a doubt in the executive department, never in the legislative department (Matter of Construction of Article III, Section 5, of the South Dakota Constitution, 1991). In addition, whether an advisory opinion requested by the governor affects individual rights is another important factor in the supreme court’s capacity to issue advisory opinions. The South Dakota Supreme Court stated that an advisory opinion was not appropriate on the question of whether the governor could withdraw names of persons nominated to the Board of Regents by a former governor before his term of office had expired, without having given those persons an opportunity to be heard. The court stated that the parties involved could have their rights expeditiously determined in an adversary proceeding (In re Opinion of the Judges, 1971).

Circuit courts are courts of general jurisdiction. Circuit courts have original jurisdiction in all cases in equity, and thus have broad jurisdiction to grant equitable remedies when properly invoked and pursuant to principles of equity (Alexander v. Hamilton, 1994).

The constitutional provision stating that circuit courts have original jurisdictions in all cases except as to any limited original jurisdiction granted to other courts does not mean “all cases in any circuit,” so as to grant circuit judges authority to act outside their circuits (State v. Wilson, 2000). The power given to judges of a particular circuit pertain only to that circuit. If the legislature exercises the prerogative granted it by the state constitution to limit the original jurisdiction of circuit courts by locating the remedy for some cause of action in an administrative agency, that agency has exclusive primary jurisdiction which precludes parties from directly seeking litigation in court (Claggett v. Department of Revenue, 1990).

A 1982 amendment to Section 5 eliminated any role of the governor in the redistricting process, even if the legislature fails to act. Thus, it was only between 1936 and 1982 that the governor had a constitutionally specified role to play in legislative reapportionment. The constitution had been amended in 1936 to provide the governor with a specific role, but the 1982 amendment eliminated this role (In the Matter of the Construction of Article III, Section 5 of the South Dakota Constitution, 1991).(p. 105)

Section 6  Qualifications of Judicial Personnel

Justices of the Supreme Court, judges of the circuit courts and persons presiding over courts of limited jurisdiction must be citizens of the United States, residents of the state of South Dakota and voting residents within the district, circuit or jurisdiction from which they are elected or appointed. No Supreme Court justice shall be deemed to have lost his voting residence in a district by reason of his removal to the seat of government in the discharge of his official duties. Justices of the Supreme Court and judges of circuit courts must be licensed to practice law in the state of South Dakota.

The 1972 amendment, which combined provisions of former Sections 10, 25 and 37, deleted the age requirements of thirty for Supreme Court justices and twenty-five for circuit and county court judges. The amendment, among other changes, also deleted durational residency requirements of two years for the Supreme Court and one year for circuit and county court judges, and it added a requirement that justices and judges be qualified to vote.

In discussing the historical intent behind Section 6 and its 1972 amendment, the court in Cummings v. Mickelson (1993) noted that under former provisions an elected circuit court judge was specifically required to reside in the circuit at the time of election.

Citing the report by the Constitutional Revision Commission, the court in Cummings recognized that the commission wished to do away with the existing residency and age requirements, finding them arbitrary standards with little relevance to the qualifications needed for a judicial position. Deleting the previous requirements of residency at the time of election, the commission concluded that a period of residency does not seem logical in a modern transitory society. Thus, in Cummings the court found that Section 6 only required residency prior to the time the judge took office, rather than at the time the candidate makes an application for the judicial vacancy. Section 6 as amended in 1972 requires only that a judge be a resident in that circuit “when appointed or elected” to the office of circuit court judge.

Section 7  Judicial Selection

Circuit court judges shall be elected in a nonpolitical election by the electorate of the circuit each represents for an eight-year term.

A vacancy, as defined by law, in the office of a Supreme Court justice or circuit court judge, shall be filled by appointment of the Governor from one of two or more persons nominated by the judicial qualifications commission. The appointment to fill a vacancy of a circuit court judge shall be for the balance of the unexpired term; and the appointment to fill a vacancy of a Supreme Court justice shall be subject to approval or rejection as hereinafter set forth.

Retention of each Supreme Court justice shall, in the manner provided by law, be subject to approval or rejection on a nonpolitical ballot at the first general election following the expiration of three years from the date of his (p. 106) appointment. Thereafter, each Supreme Court justice shall be subject to approval or rejection in like manner every eighth year. All incumbent Supreme Court justices at the time of the effective date of this amendment shall be subject to a retention election in the general election in the year in which their respective existing terms expire.

The 1972 amendment combined provisions of former Sections 8, 15, and 37. Among other changes, the 1972 amendment extended the terms of office for supreme court justices from six to eight years and for circuit court judges from four to eight years. It also added the requirement for nonpolitical elections; it provided for election of supreme court justices by electors of the district rather than the state at large, and it extended the governor’s power to fill vacancies to all elective judicial offices. An amendment approved in 1980 rewrote this section.

There are three constitutional methods by which a circuit judge is authorized to act. First, a judge may be elected by the voters of the representative circuit. Second, a judge may be appointed by the governor in the case of a vacancy in the circuit. And third, a judge may be assigned to another circuit by the chief justice of the supreme court (State v. Wilson, 2000). As head of the entire integrated judicial system in South Dakota, the chief justice of the South Dakota Supreme Court can assign judicial personnel to specific areas (or circuits) experiencing increased litigation.60

Upon notification of a judicial vacancy, the governor is empowered pursuant to Section 7 to fill the vacancy by appointment for the balance of the term (Cummings v. Mickelson, 1993). Once an appointment is made, it is final and cannot be withdrawn and exercised again unless a subsequent vacancy arises. As the court in Cummings stated, this doctrine specifically applies to circuit court appointments made by the governor pursuant to Section 7.

Section 8  Selection of the Chief Justice

The chief justice shall be selected from among the justices of the Supreme Court for a term and in a manner to be provided by law. The chief justice may resign his office without resigning from the Supreme Court.

The 1972 amendment substituted the first sentence for a previous provision requiring the supreme court judges to select a presiding judge by rule. The amendment also added the second sentence.

Section 9  Qualifications Commission

The Legislature shall provide by law for the establishment of a judicial qualifications commission which have such powers as the Legislature may provide, (p. 107) including the power to investigate complaints against any justice or judge and to conduct confidential hearings concerning the removal or involuntary retirement of a justice or judge. The Supreme Court shall prescribe by rule the means to implement and enforce the powers of the commission. On recommendation of the judicial qualifications commission the Supreme Court, after hearing, may censure, remove or retire a justice or judge for action which constitutes willful misconduct in office, willful and persistent failure to perform his duties, habitual intemperance, disability that seriously interferes with the performance of the duties or conduct prejudicial to the administration of justice which brings a judicial office into disrepute. No justice or judge shall sit in judgment in any hearing involving his own removal or retirement.

The 1972 amendment added this entire section to the constitution.

Section 10  Restrictions

During his term of office no Supreme Court justice or circuit court judge shall engage in the practice of law. Any Supreme Court justice or circuit court judge who becomes a candidate for an elective nonjudicial office shall thereby forfeit his judicial office.

The 1972 amendment combined provisions contained in former Sections 31 and 35. The amendment also deleted a provision prohibiting county court judges from practicing in matters in their own courts or appealed therefrom. The 1972 amendment substituted the second sentence for previous provisions disqualifying supreme and circuit court judges from election to a non-judicial office during the term for which they were elected to the bench.

Section 11  Administration

The chief justice is the administrative head of the unified judicial system. The chief justice shall submit an annual consolidated budget for the entire unified judicial system, and the total cost of the system shall be paid by the state. The Legislature may provide by law for the reimbursement to the state of appropriate portions of such cost by governmental subdivisions. The Supreme Court shall appoint such court personnel as it deems necessary to serve at its pleasure.

The chief justice shall appoint a presiding circuit judge for each judicial circuit to serve at the pleasure of the chief justice. Each presiding circuit judge shall have such administrative power as the Supreme Court designates by rule and may, unless it be otherwise provided by law, appoint judicial personnel to courts of limited jurisdiction to serve at his pleasure. Each presiding circuit judge shall appoint clerks and other court personnel for the counties in his circuit who shall serve at his pleasure at a compensation fixed by law. Duties of clerks shall be defined by Supreme Court rule.

The chief justice shall have power to assign any circuit judge to sit on another circuit court, or on the Supreme Court in case of a vacancy or in place of a justice who is disqualified or unable to act. The chief justice may authorize a justice to sit as a judge in any circuit court.(p. 108)

The chief justice may authorize retired justices and judges to perform any judicial duties to the extent provided by law and as directed by the Supreme Court.

A 1918 amendment to the former Section 7 added a second paragraph providing for temporary replacement of disqualified supreme court judges. A 1970 amendment added the former Section 40. The 1972 amendment then combined and replaced provisions contained in former sections 7, 12, 29, 32, and 40. That amendment also made other various changes in this section.

Under this section, circuit court judges are forbidden from acting outside the boundaries of their circuit without an assignment from the chief justice of the South Dakota Supreme Court (State v. Wilson, 2000). Generally, a judge cannot act for a court other than the one for which he or she was selected. Furthermore, the power given to the chief justice to assign circuit judges outside their circuit is the exclusive method by which judges may be assigned to another circuit. There is no exception for emergency situations (State v. Wilson).

The Constitutional Revision Commission, in drafting the 1972 amendment to Section 11, found that the way in which judges handled judicial business in another circuit, at the request of that circuit, contributed to the overall inefficiency of the judicial system.61 Therefore, the 1972 amendment repealed the previous sections allowing for such a practice, providing instead for a system in which the chief justice could assign circuit judges to another circuit. According to the commission, this system “provides the best possible utilization of judicial personnel.”62The 1972 amendment strengthened and fortified the circuit court boundaries, cutting back the flexibility accorded by the 1889 constitution to judges crossing circuit boundaries, along with the jurisdictional limits on judges within those circuit court boundaries.

Section 11, as amended in 1972, is part of a much larger scheme of the 1972 amendments to make the judicial system more efficient. From 1889 to 1970, South Dakota’s constitution was amended 79 times, each time adding more complexities and inconsistencies to the document.63 In 1969, the legislature charged the Constitutional Revision Commission “to enter into a comprehensive study of the constitution of the state of South Dakota to determine ways and means to improve and simplify the constitution.”64 As a result of this study, the commission recommended that the various state and local court systems be consolidated into a unified judicial system, so as to streamline the court system by “eliminating overlapping jurisdiction between courts.”65(p. 109)

To achieve a more efficient allocation of judicial resources, the commission recommended establishing the office of chief justice as administrative head of this unified court system.66 Subsequently, these recommendations were adopted by the voters in 1972, thereby establishing the current unified judicial system, over which the chief justice is the administrative head.67 Consequently, under Section 11, the chief justice can assign judicial personnel to areas of increased litigation, thus providing for greater efficiency. But when a circuit judge is appointed to act outside his circuit, any authority to act is dependent upon an order by the chief justice setting forth the extent and limits of this out-of-circuit authority (State v. Wilson, 2000).

Section 12  Rule-making Power

The Supreme Court shall have general superintending powers over all courts and may make rules of practice and procedure and rules governing the administration of all courts. The Supreme Court by rule shall govern terms of courts, admission to the bar, and discipline of members of the bar. These rules may be changed by the Legislature.

The 1972 amendment combined and modified in the present Section 12 provisions in former Sections 2, 4, 27, 28 and 33. It also granted to the supreme court specific rulemaking power with respect to practice and procedure, administration of the courts, admission to the bar and discipline of members of the bar. As the court noted in Cummings v. Mickelson, Section 12 vests in the supreme court general supervisory power over all courts in the state. In addition, the supreme court has the inherent power and duty to see that the administration of justice is fair (Kermmoade v. Quality Inn, 2000).

Courts have the inherent power to regulate trial procedure (State v. Guthrie, 2001). They also have the authority to establish local rules, such as those requiring submission of pretrial conference checklists (Stormo v. Strong, 1991).

Section 13  Transition

The Legislature by law and the Supreme Court by rule shall provide for the orderly transition of the judicial system in conformity with this article.

The 1972 amendment added this section to the constitution. The 1972 amendments also eliminated Sections 14 through 39. Many provisions of these sections were incorporated by the rewriting of Article V into just thirteen sections.(p. 110)


60  See also Section 11 of Article V.

61  1 Recommendations of the Constitutional Revision Commission No. 55, 34.

62  Recommendations, 35.

63  South Dakota Constitutional Revision Commission, Third Annual Report No. 1 (1972).

64  Id.

65  Recommendations, 34.

66  Id.

67  Id. at 34, 49.