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Part Two The South Dakota Constitution and Commentary, Art.VI Bill of Rights

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. 111) Article VI  Bill of Rights


There are more cases decided by the South Dakota Supreme Court citing this article than any other article of the South Dakota State Constitution. However, the overwhelming majority of the opinions citing Article VI also cite or rely upon a similar provision in the U.S. Constitution. Therefore, much of the constitutional interpretation cited or articulated by the South Dakota Supreme Court under Article VI relates to or stems from constitutional interpretations previously articulated by the U.S. Supreme Court.

Although most of the sections and provisions in Article VI reflect or mirror similar provisions in the federal Constitution, there are various provisions in this article that differ from related provisions in the federal Constitution. Some provisions of Article VI, such as those relating to free speech, are more restrictive than the federal Constitution, and for this reason are rarely if ever cited or relied upon. But there are other provisions which expand the rights and freedoms beyond those which the federal Constitution confers. In 1946, this article was amended to include a “right-to-work” provision.

As the length of Article VI demonstrates, state constitutions can be fairly expansive in their individual rights provisions. For this reason, much of state constitutional rights litigation focuses on whether state courts (p. 112) should follow or diverge from federal constitutional law.68 As Williams explains, the individual rights provisions in state constitutions often reflect the particular historical experience of that state. The experience of South Dakota, for instance, can be seen in the provisions in Article VI relating to freedom of religion, right to work, and right to bear arms. But for the most part, the rights provisions in many state constitutions, as with the South Dakota Constitution, mirror similar rights provisions in the federal Constitution.

Where the South Dakota Constitution diverges from the federal Constitution, or where the South Dakota Constitution provides rights or freedoms beyond those in the U.S. Constitution, this book will note and discuss those instances. However, whereas the vast majority of cases interpreting Article VI rely largely upon federal constitutional law, this book will only generally highlight the principles and doctrines of federal constitutional law followed by the South Dakota Supreme Court. The book will not attempt to provide a comprehensive discussion or outline of federal constitutional law as it pertains to individual rights and civil liberties.

Section 1  Inherent Rights

All men are born equally free and independent, and have certain inherent rights, among which are those of enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

This section provides a general statement of individual liberty, the purpose of government, and the theory of the social compact. It relies on language found in the Declaration of Independence, the Preamble to the U.S. Constitution, and the theories of John Locke. Essentially, it gives textual expression to a notion of inherent rights that the U.S. Supreme Court has employed in its substantive due process protections of unenumerated rights. This substantive due process approach has been used to find constitutional protections for abortion, the right to travel, and certain other liberty interests.

As explained by William Cape, the natural rights philosophy expressed in this section has “little legal or practical value in carrying out governmental powers.”69 Such broad statements have “little meaning or utility in the operation of state government.”

There have been relatively few opinions issued by the South Dakota Supreme Court relying upon or interpreting this section. In City of Watertown v. Christnacht (1917), the court struck down a city ordinance imposing criminal (p. 113) sanctions on any person found associating with females known or reputed to be prostitutes. In striking down the law, the court cited case law from other jurisdictions describing a constitutionally protected personal liberty as that liberty “to go where one pleases, and when, and to do that which may lead to one’s business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens.”

In a later case, involving the constitutionality of a statute prohibiting any college or school not supported by a church, religious or fraternal organization, or the state to collect advance tuition in excess of $25.00, the court used Section 1 of Article VI to overturn that law (State v. Nuss, 1962). With the opponents of that law citing economic freedom as one of the inherent rights guaranteed by Section 1, the court recognized that the term liberty as used in Section 1 means more than freedom from restraint or arrest—the term includes the freedom to own, control and use property, as well as the freedom to pursue any lawful trade or business.

This freedom to pursue a lawful business and to control property also includes the freedom to make all contracts relating to that business or property. However, the court in Nuss also recognized that freedom of contract is not an absolute right, nor is it superior to the general welfare of the public. According to the court, freedom of contract is subject to reasonable restraint and regulation by the state, pursuant to its police power to protect the safety, health, and general welfare of the people: “There is no longer much question concerning the broad discretion possessed by the legislature to regulate any and all business for the protection of the health, safety, morals and general welfare of the people.”

Although the power of the legislature to regulate private schools and their agents is unquestioned, due process requires that any exercise of that police power be reasonable and that the regulatory means chosen by the legislature bear a real and substantial relation to some actual or manifest evil. In analyzing the goal of the legislature to prevent fraud and deception, as well as the means chosen by the legislature to do so—e.g., a prohibition against collecting tuition or other charges in excess of $25.00 in advance of actual attendance in school—the Nuss court found that the means employed by the challenged statute bore no reasonable relation to the harms at which it was aimed and that the limitation on advanced tuition was an unwarranted invasion of defendant’s freedom of contract.

The decision in State v. Nuss (1962) is the last decision found which relied on notions of economic liberty to strike down democratically enacted legislation. In a sense, Nuss can be seen as a holdover of the Lochner v. New York (1905) legacy, which was abandoned and overruled by the U.S. Supreme Court during the New Deal era, when the Court abandoned the heightened scrutiny of Lochner and adopted a more deferential stance toward economic and social welfare regulation.70 The Court in Lochner had struck down a law limiting the (p. 114) number of hours a baker could work as a violation of substantive due process under the Fourteenth Amendment, insofar as the law was an unjustified interference with freedom of contract.

Section 2  Due Process—Right to Work

No person shall be deprived of life, liberty or property without due process of law. The right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union, or labor organization.

Due Process in General

This section has only two sentences. The first sentence contains a very general statement about due process of law. The courts have applied this due process provision in a number of circumstances. It has cited or interpreted Section 2 in connection with both procedural due process and substantive due process. It has also applied and interpreted it in the area of criminal due process, and in this respect Section 2 dovetails with Section 7 of Article VI, dealing with rights of the criminally accused. In addition, Section 2 has been interpreted or cited in determining the constitutionality of punitive damages awards and statutory limitations on damages. Finally, it has been used and interpreted in various situations involving the rights of persons whose property interests have been restrained by government action.

With respect to due process implications for civil proceedings in general, Section 2 has been applied in cases involving civil commitment of sexually violent offenders and the challenging of punitive damages or grossly excessive awards. Regarding criminal due process, this section, along with other more specific sections of Article VI, has been cited in cases involving the admissibility of evidence in criminal proceedings, burden of proof issues and competency of criminal defendants, jury trial questions, pretrial detention and police conduct, the right to counsel, and the privilege against self-incrimination.

This section has also been used in connection with Section 1 for substantive due process issues, but it is more frequently applied to procedural due process and to specifying the types of notice and hearings that individuals are entitled to receive prior to certain governmental action affecting their property or liberty interests.

The second sentence of Section 2 contains a right to work provision. It was added by a 1945 amendment, which was approved by the voters in November of 1946.

Although the South Dakota Supreme Court has on occasion read the substantive due process clause in Article VI more broadly than its (p. 115) federal counterpart,71 claims involving procedural due process under the South Dakota Constitution have generally been handled the same as those under the Fourteenth Amendment to the U.S. Constitution.72

Substantive Due Process

The South Dakota Supreme Court first used the substantive due process clause of Section 2 to strike down a legislative act in 1892 (State v. Scongal, 1892). Although the court did not specify any particular substantive due process test, the court in striking down the Banking Act of 1891 held that it invaded the individual right to liberty and property.

One way in which South Dakota constitutional law differs from federal constitutional law involves the test that South Dakota uses for whether certain statutes violate substantive due process. In upholding a city zoning ordinance that through its definition of “family” limits to three the number of unrelated adults who may live together in one residential unit, the court acknowledged that it applies a more stringent test under the South Dakota due process clause than the U.S. Supreme Court uses under the Fourteenth Amendment to evaluate the constitutionality of statutes involving neither a suspect classification nor a fundamental right (City of Brookings v. Winker, 1996). Whereas the U.S. Supreme Court uses the rational basis test to evaluate substantive due process claims involving government regulation of economic or social welfare matters, the South Dakota Supreme Court requires the statute to bear a “real and substantial relation” to the objects sought to be achieved.

This heightened substantive due process scrutiny (for claims not involving fundamental rights) was articulated in 1962 in State v. Nuss (1962).73 However, on occasion, the court has seemed to lighten this test down to a reasonableness or rational basis test.74 One such relaxation occurred in Katz, where the court upheld against a due process challenge a decision of the Board of Medical and (p. 116) Osteopathic Examiners denying an individual’s application for a license to practice medicine (Katz v. South Dakota State Board of Medical and Osteopathic Examiners, 1988).

In Katz, the court recognized that while substantive due process claims under the Fourteenth Amendment not involving fundamental rights warrant the rational basis test, similar claims under the South Dakota Constitution require that the law’s regulatory approach have a real and substantial relation to the goal of the statute. And yet, as Justice Sabers pointed out in his concurrence, the court seemed to abandon the “real and substantial relation” test when it stated the issue as one of whether the statute was “wholly unreasonable and arbitrary and bears no relation to the public interest.”

The court in Knowles v. U.S. (1993) likewise acknowledged the heightened “real and substantial relation” test for non-fundamental rights substantive due process claims under Section 2; nonetheless, it seemed to evaluate the damages cap statute at issue under a more relaxed scrutiny. According to the court, “in matters of economic and social welfare, courts must defer to our democratically elected representative unless their enactments patently conflict with some constitutional provision.”75 Yet despite this seemingly deferential stance, the court struck down the damages cap as “unreasonably arbitrary” and lacking a “real and substantial basis.”

Even though the court in Knowles identified the heightened “real and substantial basis” as the test to be used for substantive due process claims, in City of Marion v. Schoenwald (2001) the court evaluated a substantive due process claim by measuring the “reasonableness” of the statute and the “rational relationship” between the statute and the ends sought to be achieved.

In general, under either procedural or substantive due process, a party challenging the constitutionality of a statute must identify a property or liberty interest that is constitutionally protected. Whereas for substantive due process a fundamental right or liberty must be identified, for procedural due process an “important” right must be at stake (In re Hughes, 1999). For instance, due process was found to require a hearing for the transfer of a juvenile to an adult court, since the action involved critically important interests and rights of that juvenile (People in Interest of L.V.A., 1976). The court has also found that forfeiture statutes are unconstitutional if they contain no provisions for notice and hearing after seizure (State v. Miller, 2006). And statutes authorizing the State Board of Equalization to raise individual tax assessments without providing for notice to taxpayers or review by court or other body have been held unconstitutional.

Due process requires civil statutes to convey a sufficiently definite warning of the prohibited conduct. This warning should be measured by common (p. 117) understandings or practice, and must not cause persons to guess at the meaning or applicability of the statute (Swanson v. State Department of Commerce & Regulation, 1987).

Procedural Due Process—Civil Actions

The dictates of Article VI, Section 2 with respect to procedural due process differ very little from those existing under federal constitutional law. Therefore, what follows is a brief overview of general principles and applications of procedural due process as articulated by the South Dakota Supreme Court.

Basically, due process requires that notice and the right to be heard are granted in a meaningful time and manner (City of Pierre v. Blackwell, 2001). Consequently, the formality and procedural requisites of a hearing depend on the nature of the subsequent proceedings and the importance of the interests involved. But the due process clause requires at a minimum that any deprivation of life, liberty, or property be preceded by notice and an opportunity for hearing appropriate to the nature and circumstances of the case (Northwest South Dakota Production Credit Ass’n v. Dale, 1985).

As with cases involving procedural due process under federal constitutional law, the South Dakota Supreme Court has ruled that due process requirements attach, for instance, to a public school teacher whose employment contract has been terminated or not renewed by the school board (Moran v. Rapid City Area School District No. 51-4, 1979). The property interest a tenured teacher has in her continued employment necessitates compliance with due process requirements (Wuest v. Winner School District, 2000). However, even though a public school teacher’s constitutional right to due process mandates that he or she be given fair and impartial consideration by the school board in determining whether to renew her teaching contract, a denial to her of the opportunity to examine in advance of the hearing a list of parents who had complained about her was not so egregious as to violate her due process rights (Moran v. Rapid City Area School District, 1979). In general, due process is satisfied for a teacher whose contract will not be renewed when that teacher was notified of the charges against her, was allowed to review her official files, and had sufficient time to prepare a defense (Hensley v. Yankton Independent School District, 1975).

The flexible nature of due process requirements is illustrated by the types of notices the court has found to be sufficient. For instance, the requirement that a taxpayer be notified before increasing his or her tax assessment is satisfied by constructive notice when actual notice is impractical (Beveridge v. Baer, 1932). (As discussed in Beveridge, the question was whether actual notice was required [notice specifically given to the individual effected] or whether constructive notice [the kind of notice not given specifically to the individual but which the individual will be charged with knowing, such as notice of the date and time of a public meeting at which a particular topic (p. 118) will be addressed] would be sufficient.) Moreover, public notice of the time and place of a hearing on the question of assessments for public improvements, such as sewers, is sufficient to constitute due process of law (Bailey v. City of Sioux Falls, 1911). On the other hand, the court has held that a devisee was denied due process when the trial court in a probate proceeding refused to hold a hearing on the devisee’s petition for a reduction in the value of land he was to inherit, which would have decreased the devisee’s state inheritance tax and federal estate tax liabilities (In re Estate of Siebrasse, 2002).

Due Process—Special Applications

Due process requires that a public utility be given an opportunity to earn a fair rate of return on its property. Thus, any order of the Public Utilities Commission that denies such an opportunity constitutes a taking of property in violation of due process (Farmers Educational and Coop Union v. Circuit Court of Charles Mix Co., 1949). Specifically, an order by the Public Utilities Commission denying an increase in rates to a public utility amounts to confiscation of property if by such denial the utility is prevented from earning a fair return on its investment.

Generally, due process prohibits the governmental taking of private property without just compensation. (Other related provisions on the constitutional law of eminent domain are covered in Article VI, Section 13 of the South Dakota Constitution.) However, an exception to this rule occurs when the government takes or destroys property so as to eliminate a public nuisance that poses an imminent hazard to the public health, safety, or welfare, and when such destruction is the only adequate method for eliminating that hazard (City of Rapid City v. Boland, 1978). In these cases, Article VI, Section 2, which provides “No person shall be deprived of property without due process of law,” must be read in light of Section 13.

There are three exceptions to the requirement of compensation where, without the owner’s consent, private property is intentionally taken or damaged for the public use or benefit. These three exceptions are: (1) the taking or destruction of property during actual warfare; (2) the taking or destruction of property to prevent an imminent public catastrophe; and (3) the taking or destruction of property to abate a public nuisance. In each instance, the power to take or damage property without compensation is based upon the public necessity of preventing an impending hazard which threatens the life, safety, or health of the general public (City of Rapid City v. Boland, 1978). To fall within these exceptions, there must be an extreme or overwhelming necessity to preserve the public welfare, and not just a mere expediency. There must be an impending disaster, and the destruction of the private property must be reasonably necessary to prevent that disaster.(p. 119)

Although the abatement of a public nuisance does not entitle the owner of the property to compensation, the owner is entitled to due process to determine whether the property in fact poses a nuisance. A summary abatement is allowed only where the property constitutes a public nuisance that is an imminent hazard to public health or safety, and that destruction is the only adequate method of eliminating that hazard. If there is no notice and hearing before the seizure and destruction of the property, then the owner is entitled to a hearing after the destruction so as to determine whether the property was in fact a nuisance (City of Rapid City v. Boland, 1978). Furthermore, once the impending disaster has passed, the government may not rely upon the doctrine of necessity to justify any subsequent destruction of the property.

In South Dakota Department of Health v. Owen (1984), the South Dakota Supreme Court found that the destruction of a commercial elk herd infected with tuberculosis did not require compensation by the government, since the destruction constituted a summary abatement of a nuisance that was imminently hazardous to the public health and safety. According to the rule in Owen, a destruction by health authorities of animals suffering from a contagious disease, where such destruction is necessary to prevent the spread of that disease, does not amount to a taking of property for public use within the meaning of the constitutional provisions requiring compensation for such use. However, if there is no notice and hearing before seizure and destruction of the property, the owner is entitled to a hearing after the destruction to determine whether the property was in fact a nuisance and whether this destruction was necessary to abate the nuisance.

Due Process—Damages Awards

Although there has been much national litigation regarding the connection between punitive damages and due process, there has been relatively little such litigation in South Dakota. In general, statutes governing punitive damages are presumed to meet due process requirements (Schaffer v. Edward D. Jones & Co, 1996). For instance, even when the ratio between punitive and compensatory damages was 30 to 1, the court upheld the imposition of a punitive damages award to an investor claiming fraud and deceit, where it was found that the defendant had intentionally touted the investment as conservative even though it was in fact highly speculative, and where the defendant firm had made very large commissions selling that particular investment.

In assessing the constitutionality of punitive damages awards, courts should consider five factors: (1) whether the harm caused was physical as opposed to economic; (2) whether the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; (3) whether target of the conduct had financial vulnerability; (4) whether the conduct involved repeated actions or was an isolated incident; and (5) whether the harm was a result of (p. 120) intentional malice, trickery, or deceit, or a mere accident (Diesel Machinery Inc. v. B. R. Lee Industries, Inc., 2005). However, the dominant consideration for assessing the constitutionality of a punitive damages award seems to be the reprehensibility of the defendant’s conduct. In one decision overruling a punitive damages award of $7.5 million to a former agent who sued an insurance company for deceit and breach of fiduciary duty, the court held that the award violated due process on the grounds that the company’s actions did not constitute reckless disregard of the health or safety of others, nor did it involve an act of trickery or animosity toward the agent (Kent v. United of Omaha Life Insurance Co., 2006).

With respect to the due process implications of statutory damage caps, the South Dakota Supreme Court has ruled that a $1 million malpractice damages cap violated the state constitutional right to substantive due process (Knowles v. United States, 1996). Not only did a statutory limitation on damages for medical malpractice violate the South Dakota Constitution’s guarantee of the right to trial by jury, since such a damages cap limits the jury verdict “automatically and absolutely,” but such a damages cap also violates substantive due process, since it did not bear a real and substantial relation to the objects sought to be attained by the damages cap. According to the court, the arbitrary classification of medical malpractice claimants based on the amount of damages is not rationally related to the stated purpose of curbing medical malpractice claims. Not only was the damages cap adopted as a result of “some perceived medical malpractice crisis,” but the court also found that the statute did not treat each medical malpractice claimant uniformly.

The Right-to-Work Guarantee

This constitutional right-to-work provision applies to both public and private employment (Levasseur v. Wheeldon, 1962). Consequently, a city resolution requiring certain employees of the city to terminate their membership in any union affiliated with a national labor federation violated the right-to-work provision in Article VI. However, the South Dakota Supreme Court has held that requiring membership in the state bar so as to practice law in the state does not violate the provision; moreover, the state bar was not a labor union or labor organization within the meaning of the provision (Matter of Chamley, 1984).

Union or agency shops are invalid in South Dakota (Matthews v. Twin City Const. Co., Inc., 1984). According to Matthews, union security agreements violate South Dakota right-to-work statutory law, as enabled by the constitutional right-to-work provision. Where a non-union worker sued a former employer and union, alleging that they had terminated his employment because of non-membership in a union, the court held that through Article VI, Section 2 of the South Dakota Constitution and related right-to-work legislation, South (p. 121) Dakota had clearly elected to exercise an exemption in the Taft-Hartley Act which provided:

Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any state or territory in which such execution or application is prohibited by state or territorial law.

Thus, South Dakota can enforce its right-to-work laws without regard to the national labor laws.

Due Process—Criminal Proceedings

In the criminal setting, due process requires a fundamental fairness (State ex rel. Baker v. Jameson, 1949). Under the due process guarantee in Article VI, Section 2, a defendant is not guaranteed a perfect trial, only a fair trial (State v. Nelson, 1998). Due process is denied when a court fails to protect a criminally accused’s constitutional rights to jury trial, to be informed of the nature and cause of accusations against him, to confront adverse witnesses, to have compulsory process to obtain witnesses, and to have the assistance of counsel. Inherent and unconstitutional prejudice exists not simply when jurors can actually articulate consciousness of some prejudicial effect, but when there is an unacceptable risk of impermissible factors coming into play (State v. Weatherford, 1987).

Due process requires that individuals know precisely what acts will subject them to criminal conviction. If a statute is so vague that persons of common intelligence must guess as to its meaning and application, the statute violates due process. In State v. Dove (1955), a statute purporting to define first degree kidnapping did not define with certainty what acts constituted that crime. Consequently, conviction under the statute violated due process.

The constitutional rights of the criminally accused are also laid out in other provisions and sections of this article. Moreover, the South Dakota Supreme Court in interpreting and applying Section 2 has not significantly diverged from the mandates of the federal Constitution. Therefore, only a brief discussion of various aspects of due process requirements for criminal proceedings will be outlined here.

The due process clauses of both the federal and state constitutions require the state to reveal exculpatory evidence to the defense (Rodriguez v. Weber, 2000). A defendant’s due process rights are violated by a state’s failure to disclose evidence if the following four factors are established: (1) the defense was unaware of the evidence; (2) the evidence was favorable to the defense; (3) the evidence was material to the defense; and (4) he defense made a request for the evidence. The purpose of the rule that a defendant cannot be denied access to exculpatory evidence known to the government is not to provide a defendant (p. 122) with a complete disclosure of all evidence in the government’s position that might conceivably assist him in preparation of his defense, but to assure that he will not be denied access to exculpatory evidence possessed by the government (Ericson v. Weber, 2008). Although this rule does not absolve a defendant of his responsibility to discover evidence relevant to his defense or sentencing, it has been expanded to cases where the defendant has made no request for disclosure. However, even in those cases, the defendant must still prove that the government suppressed the evidence in question.

A state’s refusal to provide a defendant with the investigating police officer’s original notes did not violate due process where there was so much incriminating testimony that it was doubtful the defendant could have found enough impeachment evidence in the notes to change the outcome of the trial (State v. Muetze, 1985). However, the suppression of evidence favorable to an accused, when the accused requests such evidence, generally violates due process where the evidence is material either to guilt or punishment, irrespective of good or bad faith of the prosecution (State v. Cody, 1982). But if the evidence would not have altered the ultimate jury verdict, despite its alleged exonerative affect, then there is no violation of due process. Moreover, some types of evidence, because of their greater probative force under the facts of the case, must be given to a defendant even if the defendant does not request them (State v. Hanson, 1979).

A defendant’s refusal to submit to a blood-alcohol test was inadmissible under due process requirements, where the arresting officer did not warn defendant that the test results could be used against him at trial and that his refusal could also be used as evidence in a driving-while-intoxicated trial (State v. Neville, 1984). However, law enforcement officials who arrest a defendant for driving while under the influence did not violate defendant’s due process rights by denying her request for a blood test after she refused a breath test. The court ruled that there was nothing fundamentally unfair in this procedure and that it did not deny defendant a meaningful opportunity to present a complete defense, since the state did not withhold any exculpatory evidence (State v. Zoss, 1985).

Although a person may waive his or her due process right to assistance of counsel, that waiver must be made voluntarily and intelligently and by a competent mind (State v. Haas, 1943). Such a competent and intelligent waiver is illustrated in Application of Trevithick, where a state prisoner was ruled not to have been denied due process nor deprived of a fair trial by his having gone to trial on a kidnapping charge without services of counsel. Factors considered by the court included whether the prisoner was acquainted with the criminal process, had previous experience in prison and knowledge of the benefits of counsel, and was aware of the seriousness of the charge (Application of Trevithick, 1966).

A similar standard exists with respect to a defendant’s guilty plea. To determine if such a plea is voluntarily and intelligently given, as required by due (p. 123) process, the court must look to the totality of the circumstances. The court considers such factors as the defendant’s age, prior criminal record, whether defendant is represented by counsel, the existence of a plea agreement, and the time between advisements of rights and entering into that plea (State v. Apple, 2008). Moreover, once an accused agrees to plead guilty in reliance upon a prosecutor’s promise to perform a future act, the accused’s due process rights demand fulfillment of that bargain (Baldridge v. Weber, 2008).

Section 3  Freedom of Religion

Support of religion prohibited. The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege or position on account of his religious opinions; but the liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of the state.

No person shall be compelled to attend or support any ministry or place of worship against his consent nor shall any preference be given by law to any religious establishment or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.

Section 3 includes religious freedom protections. It contains both a free exercise provision and a non-establishment provision, similar to the First Amendment of the U.S. Constitution. There is not a voluminous case law decided by the South Dakota Supreme Court interpreting this section. There is certainly nowhere near the volume of case law that exists with respect to the First Amendment religion clauses.

This section does not appear to give more expansive liberties in connection with religious freedom than does the First Amendment; indeed, the provision that “The liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of the state” could be interpreted as more restrictive than the First Amendment Free Exercise Clause. However, since the Free Exercise Clause has been applied to the states through the Fourteenth Amendment, any state provision that is more restrictive than the relevant provision in the federal Bill of Rights will be essentially unenforceable.

Despite the relative scarcity of South Dakota Supreme Court case law on Section 3, there is indication that the court sees Section 3 as coextensive with the First Amendment Free Exercise Clause. For instance, in Decker v. Tschetter Hutterian Brethren Inc. (1999), the court stated that both the First Amendment to the U.S. Constitution and Section 3 of Article VI of the South Dakota Constitution similarly precluded civil courts from entertaining religious disputes over doctrine, leaving adjudication of those issues to the ecclesiastical tribunals of the appropriate church.(p. 124)

The court’s suggestion that the free exercise mandates of Section 3 are coextensive with the Free Exercise Clause of the First Amendment indicates that a much earlier case decided some seventy years ago may not hold up today. In the 1943 decision in State v. Van Daalan (1943), the court held that the South Dakota retail sales tax is a privilege or occupation tax that was unconstitutionally applied to an ordained minister of Jehovah’s Witnesses selling religious literature from door to door as a means of preaching the gospel. This decision may have been consistent with the U.S. Supreme Court’s pre-Smith approach, in which it applied strict scrutiny to any regulation burdening religious exercise. However, subsequent to Smith, the U.S. Supreme Court has taken a neutrality approach, holding that generally applicable laws that do not single out any minority religion are constitutional, despite the burden they may impose on religious exercise.

The primary distinction between Section 3 and the First Amendment of the U.S. Constitution lies in the very last sentence of Section 3, which states, “No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.” This Blaine Amendment-type language appeared in an array of state constitutions ratified in the late nineteenth century, and was largely motivated by anti-Catholic sentiment focused on preventing any public money from going to Catholic schools.

The South Dakota Supreme Court has ruled that this provision is “self-executing” and is intended to prohibit in every form, whether as a gift or otherwise, the appropriation of public funds for the benefit of any sectarian school or institution (McDonald v. School Board of Yankton, 1976). Consequently, the clause is more restrictive than the Establishment Clause of the U.S. Constitution.76 In enforcing this provision of Section 3, the South Dakota Supreme Court has held that textbook loan statutes are unconstitutional on their face because they provide aid to sectarian schools or institutions (Elbe v. Yankton Independent School Dist., 1986). Moreover, the inclusion of additional classes of textbook recipients in these loan statutes, to include various students in both public and non-public schools, does not eliminate the constitutional flaw, because the statutes still provide public aid to a sectarian school or institution (Matter of Certification of a Question of Law, 1985).

Although Blaine Amendment-type language appears in some state constitutions, the U.S. Supreme Court has taken a neutrality approach in its federal free exercise and establishment clause jurisprudence.77 In other words, under this neutrality approach, courts do not allow establishment clause concerns—e.g., that certain government support or accommodation might “establish” (p. 125) a religion—to permit discrimination against that religion by denying it the same benefits or treatment given to secular groups or entities. The neutrality approach was evident in Wigg v. Sioux Falls School District (2004), where the U.S. Eighth Circuit Court of Appeals held that a school district’s policy prohibiting its employees from participating in religious-based programs held on school grounds was viewpoint discriminatory and could not be justified by the argument that any accommodation of religion might violate the Establishment Clause. This ruling reflected the trend of First Amendment case law beginning in about the 1980s, whereby the U.S. Supreme Court stated that the Establishment Clause could not be used to discriminate against religious practitioners and their speech rights.

Even though the last sentence of Section 3 seems to run against the broad-based neutrality approach being taken by the U.S. Supreme Court, it is probably not in jeopardy of being struck down. Indeed, the Court in Locke v. Davey (2004) seemed to sanction the appearance of Blaine-type Amendments within state constitutions. The approach seems to be that state constitutions cannot be more restrictive than the Free Exercise Clause, but they can be more restrictive than the Establishment Clause—thus, the Free Exercise Clause sets a minimum level of individual religious freedom, whereas the Establishment Clause sets the outer limits of permissible interaction between the state and religion.

The South Dakota Supreme Court, however, has drawn certain boundaries around the constitutional prohibition of any aid going to a sectarian institution. The court has ruled, for instance, that Section 3 does not invalidate a state statute making every accredited high school eligible for membership in the State High School Interscholastic Activities Association, since such eligibility did not purport to provide any gift or appropriation to a sectarian institution, but merely stated that if there is to be an association for high school interscholastic activities then such association must admit all accredited high schools under uniform rules and regulations (South Dakota High School Interscholastic Activities Association v. St. Mary’s Inter-Parochial High School of Salem, 1966). Section 3 does not require that parochial students be barred from participation in interscholastic activities with public school students just because there might be an incidental use of public school facilities. This use of public school facilities by parochial school students does not amount to an unconstitutional aid to a sectarian institution. Thus, the South Dakota Supreme Court has limited the reach of Section 3 to the direct provision by the state to parochial schools of some measurable monetary benefit.

Section 4  Right of Petition and Peaceable Assembly

The right of petition, and of the people peaceably to assemble to consult for the common good and make known their opinions, shall never be abridged.

(p. 126)

While there has been much U.S. Supreme Court case law on freedom of assembly and association, there has been almost no significant South Dakota case law on Section 4. Therefore, there is no reason to conclude that Section 4 differs in any meaningful way from the relevant provisions of the First Amendment.

Section 5  Freedom of Speech—Truth as Defense—Jury Trial

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense. The jury shall have the right to determine the fact and the law under the direction of the court.

This section is similar to the speech and press clauses of the First Amendment of the U.S. Constitution. However, the text of Section 5 does suggest that it could be more restrictive than the First Amendment. For instance, Section 5 states that even though individuals enjoy freedom of speech, they are responsible for abusing that right. Section 5 also seems to require that good motive exist in order for truth to be a defense in a libel action. Finally, Section 5 states that juries shall have the right to determine the law in libel cases.

As with Section 3, this section has a relatively small volume of case law interpreting it, especially when compared with the huge volume of federal case law interpreting and applying the Free Speech Clause of the First Amendment.

In the relatively few cases it has decided, the South Dakota Supreme Court has suggested that the provisions in Section 5 are coextensive with the similar provisions of the First Amendment. In Rapid City Journal v. Circuit Court (1979), the South Dakota Supreme Court held that the press freedom in Section 5 of the South Dakota Constitution “affords the press no greater rights than its federal counterpart does.” This finding was cited in a later case in which the South Dakota Supreme Court held that Section 5 did not provide any greater speech protections than does the First Amendment (Gilbert v. Flandreau Santee Sioux Tribe, 2006). The court in Gilbert stated that even though Section 5 is worded differently than the First Amendment, the former was intended to provide no broader speech protections than those afforded by the First Amendment. Looking back to the 1885 South Dakota Constitutional Convention for evidence of the intent behind this section, the court stated, “We find no indication that the Framers intended to provide more expansive protection through South Dakota’s bill of rights than that provided by the First Amendment of the U.S. Constitution.”

The language in Section 5 relating to an individual’s freedom of speech existing only to the extent that the individual not use that freedom to injure others harkens back to the natural rights philosophies of the eighteenth century, in which natural rights such as freedom of speech existed (p. 127) only so far as they were not used to infringe upon the rights of others. This “duty” aspect of the freedom of speech has largely been eroded over the past half-century of First Amendment jurisprudence. However, some of the early cases decided by the South Dakota Supreme Court under Section 5 reflect this duty or responsibility aspect of free speech. For instance, the court held that freedom of the press does not authorize a newspaper to assail litigants during the course of a trial, intimidate witnesses, nor publish its opinions on the merits of a pending case (In re A. Egan, 1909). Also in an early case, the court held that under Section 5 juries in libel cases have the right to determine the law, including the issue of whether a certain statement was privileged (Ross v. Ward, 1901).

Finally, in a case that did not have direct application to Section 5 but that did address the issue of whether a lawyer could be professionally sanctioned for a speech made during the course of a judicial campaign, the court’s opinion reveals a notion of freedom of speech that harkens back to a Blackstonian era in which freedom of speech had to be exercised responsibly. In that case, the South Dakota Supreme Court upheld the disbarment of an attorney for speech he expressed during the course of a judicial campaign. Although the court said that the lawyer could not be criminally sanctioned for his speech, a lawyer in a campaign for a judicial office has an added responsibility and should seek to maintain a higher standard of conduct than could be expected of one who is not a member of the legal profession. Consequently, if a lawyer abuses his freedom of speech, it may be an indication of his character or fitness to practice law (In re Gorsuch, 1956). According to the court, the lawyer’s undignified and abusive speech demonstrated an unfitness to practice law and to assume the duties and responsibilities of the legal profession.

Section 6  Jury Trial—Reduced Jury—Three-Fourths Vote

The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy, but the Legislature may provide for a jury of less than twelve in any court not a court of record and for the decision of civil cases by three-fourths of the jury in any court.

This section, dealing with jury trial rights, overlaps with both Sections 2 and 7 of Article VI. Hence, case law interpreting those other sections may also have relevance to Section 5.

While Section 7 of Article VI deals with jury trial rights in criminal proceedings, Section 5 deals with jury trials in civil proceedings. As a general rule, the right to a jury trial is guaranteed in all cases where such rights existed at common law (State v. Page, 2006).

A jury trial right does not exist in all civil cases. A right to a jury trial exists if the action is one at law; but if the action is one of equity, there is no right to a jury trial (Orr v. Kneip, 1979). In cases where the pleadings seek equitable relief (p. 128) or where the legal relief is incidental, a jury trial is a matter for the trial court’s discretion (First National Bank of Philip v. Temple, 2002). For instance, where a plaintiff’s demand for attorney’s fees and expenses were incidental to his equitable specific performance action, plaintiff did not have a right to a jury trial (Skoglund v. Staab, 1981). To determine whether a right to a jury trial exists in a declaratory judgment action, it is necessary first to determine the nature of the action in which the issue would have arisen absent the declaratory judgment procedure. If there would have been a right to a jury trial on the issue, if it had arisen in an action other than one for declaratory judgment, then there is a right to a jury trial in the declaratory judgment action, and, conversely, there is no right to a trial by jury if, absent the declaratory judgment procedure, the issue would have arisen in an equitable proceeding (First National Bank of Philip v. Temple, 2002).

Section 7  Rights of Accused

In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

This section again mirrors provisions within the Bill of Rights of the U.S. Constitution, and therefore the case law interpreting this section essentially mirrors the case law interpreting the relevant freedoms in the U.S. Constitution. Those freedoms include the Sixth Amendment right to counsel, the right to confront witnesses and to have effective assistance of counsel, and the right to a fair and public trial. The South Dakota Supreme Court has indicated that Section 7 of Article VI is coextensive with the relevant provisions within the U.S. Bill of Rights. For instance, in Rapid City Journal v. Circuit Court (1979), the court stated that Section 7 yielded no more rights or freedoms than does the Sixth Amendment of the U.S. Constitution. Rapid City Journal dealt with the specific issue of whether Section 7 gave the press greater access to criminal proceedings than did the Sixth Amendment of the U.S. Constitution.

The South Dakota Supreme Court case law citing and applying Section 7 basically mirrors the criminal procedure and jury trial case law under the Bill of Rights of the U.S. Constitution. Because of this, and because the Sixth Amendment applies to the states by way of the Fourteenth Amendment, cases brought in South Dakota asserting jury trial rights in criminal proceedings largely rely on Sixth Amendment precedent and doctrine. However, that body of federal law will not be comprehensively discussed or analyzed here. Instead, only a few issues will be noted so as to illustrate the workings of Section 7 and to show its similarity with federal law.(p. 129)

Both the federal and South Dakota Constitutions guarantee the right to trial by an impartial jury, and are essentially similar in those guarantees (State v. Moeller, 2000). The state constitutional right to jury trial extends even to offenses with maximum authorized jail sentences of less than six months, unless a trial judge assures defendant at the time of the jury trial request that no jail sentence will be imposed (State v. Bowers, 1993). In prosecutions of offenses with maximum authorized jail sentences of less than six months, a court may deny a jury trial request when the court assures defendant at the time of request that no jail sentence will be imposed (State v. Auen, 1984). Auen followed an earlier decision by the South Dakota Supreme Court in State v. Wikle (1980), in which the court held that the violation of a city ordinance, which provided for a maximum penalty of $100 and no possibility of incarceration, was a petty offense, not entitling defendant to a jury trial. According to Wikle, petty offenses do not require a jury trial. To determine whether a crime is serious or petty, the courts look to the maximum punishment and the nature of the offense, as well as the common law background, whether society views the offense with sufficient opprobrium, and the consequences of conviction. But in any criminal prosecution for which incarceration could be imposed, the defendant is entitled to a trial by jury.

There is no fixed rule as to when a “speedy trial” must occur. What is reasonable speed will depend upon the facts of each case (State v. Nagele, 1964). However, a right to speedy trial should not operate so as to deprive the state of a reasonable opportunity to fairly prosecute a criminal action (State v. Fogg, 1962). Furthermore, a defendant can waive his right to a speedy trial if he does not resist postponement or move to bring his case on for trial (State v. Violett, 1961).

When determining whether a defendant’s right to speedy trial has been denied, the court considers four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the accused asserted the right for a speedy trial; and (4) whether the accused was prejudiced by the delay (State v. Karlen, 1999). Until there is some delay that is presumptively prejudicial, the court need not consider these four factors to determine whether there has been a speedy trial right violation. But when a delay is determined to be presumptively prejudicial, then the four factors must be considered. According to the court, delays of over one year are presumptively prejudicial (State v. Tiegen, 2008). However, a delay of 27 months has not been found to violate speedy trial rights when the majority of that delay was attributable to defendant’s own actions (State v. Goodroad, 1994). In another case, a delay of over 39 months was not considered a violation of speedy trial rights, since the delay was not caused by the prosecution but by the defendant (State v. Krana, 1978).

Regarding trial venue, a defendant does not have the right to be sentenced in the county in which the offense occurred (Gross v. Solem, 1989). However, every defendant charged with a serious felony has a constitutional right to be tried in the county in which the offense is alleged to have been committed (State v. Banks, 1986).(p. 130)

With respect to the guarantee of effective counsel, there is a presumption that an attorney is competent, until a showing to the contrary is made; thus, a petitioner claiming ineffective assistance of counsel carries a heavy burden (Randall v. Weber, 2002). In determining whether ineffective assistance of counsel has occurred, the court asks first whether trial counsel made errors that were so serious that he was not functioning as effective counsel, and second whether those errors seriously prejudiced defendant to the extent that they deprived him of a fair trial (Randall v. Weber, 2002). Prejudice exists when there is a reasonable probability that, but for counsel’s errors, the proceeding would have turned out differently (Adams v. Leapley, 1992). A wrong or poor exercise of judgment is alone not enough to support a claim of ineffective counsel (High Elk v. State, 1984). The function of the courts is not to second-guess the tactical decisions of trial counsel; nor will the court substitute its own theoretical judgment for that of the trial attorney (State v. Dornbusch, 1986).

A defendant in a criminal action has both a constitutional right to be represented by counsel and a constitutional right to represent himself, whichever he chooses (State v. Patten, 2005). However, with respect to waiving the right to counsel, the competence that is required of a defendant is the competence to waive the right, not the competence to represent himself (State v. Asmussen, 2006).

Although only a brief description of some issues relating to Section 7 is provided here, it should be noted that decisions regarding jury trial rights under Section 7 were essentially decided using the doctrines and precedent of Sixth Amendment case law.

Section 8  Rights to Bail—Habeas Corpus

All persons shall be bailable by sufficient sureties, except for capital offenses when proof is evident or presumption great. The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require it.

The provision in the U.S. Constitution regarding habeas corpus can be found in Article I, Section 9. As a general matter, habeas corpus is used to review only whether the court has jurisdiction of the crime and the defendant; whether the sentence was authorized by law; and whether in certain cases the defendant was deprived of basic constitutional rights (Baldridge v. Weber, 2008).

A writ of habeas corpus is used to bring a prisoner or other detainee before the court to determine if the person’s imprisonment of detention is lawful. Such writs are usually used to review the legality of the party’s arrest, imprisonment, or detention. It can be used, for instance, in cases where a person is held without charges, or where due process has been denied, or if a convicted prisoner argues that his or her legal representation was incompetent.(p. 131)

According to the South Dakota Supreme Court, Section 8 of Article VI of the South Dakota Constitution provides that bail before conviction is a matter of absolute right in all cases, but not after conviction (City of Sioux Falls v. Marshall, 1925). Under Section 8, it is the state’s burden in an application for bail in a capital offense case to show that the proof is evident or the presumption great (State v. Kauffman, 1906).

Section 9  Self-incrimination—Double Jeopardy

No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense.

This section contains two important freedoms. The first is the freedom against compelled self-incrimination in criminal cases. The second is the freedom from double jeopardy. Similar freedoms or provisions in the U.S. Constitution can be found in the Fifth Amendment. Under the Fifth Amendment, federal courts have ruled on the admissibility of confessions and other evidence in criminal proceedings, the self-incrimination privilege, Miranda warnings and custodial interrogations, and the right to counsel. In deciding the scope of the privilege against self-incrimination in Section 9, the South Dakota Supreme Court is not bound by federal court interpretations of the Fifth Amendment to the U.S. Constitution, even though the two clauses of the two constitutions are similar (City of Sioux Falls v. Walser, 1922).

As interpreted by the South Dakota Supreme Court, the Section 9 privilege against self-incrimination protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of testimonial or communicative nature—real or physical evidence is not covered by this privilege (State v. Knoche, 1994). However, the privilege against self-incrimination was never intended to prevent an accused from freely and voluntarily making an extra judicial confession or admission (State v. Hinz, 1960).

Generally, the self-incrimination privilege in the South Dakota State Constitution is similar to that in the Fifth Amendment to the U.S. Constitution. However, there is a difference in the two clauses. The phrase “to give evidence against himself,” as used in the South Dakota Constitution, is different from and grants a broader privilege than the phrase “to be a witness against himself,” as used in the Fifth Amendment (State v. Neville, 1984). In State v. Neville, the South Dakota Supreme Court held that a defendant’s refusal to submit to a blood test constitutes evidence of a testimonial nature within the protection of the privilege against self-incrimination. Although acknowledging that the U.S. Supreme Court had determined that evidence of an accused’s refusal to take a blood test does not infringe upon Fifth Amendment rights, the South Dakota Supreme Court issued a more individual rights-protective (p. 132) interpretation to Article VI, Section 9 of the South Dakota Constitution. In granting broader protections under the South Dakota State Constitution, the court recited the rule that states are free to provide greater protections under their own constitutions than are provided by the federal Constitution (citing State v. Opperman, 1976).78 Although the court recognized that the privilege against self-incrimination extends only to communicative or testimonial evidence, and not to the obtaining of physical evidence such as breathalyzer or other chemical evidence, the court found that a refusal to take a blood test is not physical evidence but communicative evidence, and thus included within Section 9.

Requiring defendant to approach an identification witness and show his tattoo, which had already been seen and acknowledged by another witness, did not violate the privilege against self-incrimination; the court found that the defendant merely demonstrated characteristics as to the source of physical evidence to which observers could and did testify (State v. Knoche, 1994). Moreover, the court has stated that Miranda warnings are not applicable to physical dexterity tests performed by a driver who had been arrested for driving while under the influence, insofar as dexterity tests are real physical evidence and not protected by the constitutional privilege against self-incrimination (State v. Roadifer, 1984).

Miranda warnings are only required when a person is being interrogated in custody at the station or otherwise deprived of his freedom of action in any significant way (State v. Bowker, 2008). A law enforcement officer is not required to deliver Miranda warnings when his questions constitute general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him in custody (State v. Johnson, 2007). The test for determining whether someone is in custody for purposes of the Miranda warnings is a two-part test: first, what were the circumstances surrounding the interrogation, and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave?

The issue of whether an incriminating statement has been voluntarily given involves a review of the totality of the circumstances and the effect they had upon the will of the defendant. Factors to be considered include the defendant’s youth and lack of education or low intelligence, the lack of any advice to defendant of his constitutional rights, the length of the detention, repeated and prolonged nature of the questioning, and the use of physical punishment such as deprivation of food or sleep (State v. Dickey, 1990).(p. 133)

In determining whether a confession is voluntary, the court must consider not whether the interrogator’s statements were the cause of the confession, but whether the statements were so manipulative or coercive that they deprived defendant of his ability to make an unrestrained, autonomous decision to confess (State v. Smith, 1998). The state has a heavy burden of demonstrating beyond a reasonable doubt that defendant voluntarily and knowingly waived his right against self-incrimination, and courts must indulge in every reasonable presumption against waiver (State v. Holland, 1984).

The double jeopardy clauses of both the Fifth Amendment to the U.S. Constitution and Section 9 of the South Dakota Constitution protect individuals from successive prosecutions for the same criminal act after acquittal, a second prosecution for the same offense post-conviction, or multiple punishments for the same offense (Weiker v. Solem, 1994). The purpose of the Section 9 prohibition against double jeopardy is to make sure that persons are subject only once to a prosecution that may result in criminal punishment (State v. Weekley, 1976). However, the state legislature may impose multiple punishments for the same conduct without violating the double jeopardy clause if it clearly expresses its intent to do so (State v. Weaver, 2002).

Successive prosecutions under two statutes are barred by double jeopardy not only when the elements of the statutes are the same, but also when, to establish an essential element of an offense charged in a subsequent prosecution, the government will have to prove conduct that constitutes an offense for which defendant has already been prosecuted (State v. Groves, 1991). Under the same evidence test, the same act or transaction may constitute two distinct offenses if each offense as defined by statute requires proof of some fact or element not required to establish the other (State v. Seidschlaw, 1981). The defense of double jeopardy is available only when separate offenses are in substance the same, so that the evidence that proves the one would prove the other; however, if an essential element of one is not necessarily present in the other, there is no double jeopardy (State v. Corle, 1980).

A defendant cannot claim double jeopardy even though a single transaction gives rise to both a first degree robbery charge and a concealed weapon charge, since the two crimes involved require proof of different facts (State v. Coe, 1979). Moreover, the same act or transaction may constitute violation of both federal and state laws, and conviction or acquittal in one jurisdiction does not prevent subsequent prosecution in the other, if the criminal act is one over which both sovereignties have jurisdiction and there is no statute to the contrary (State v. West, 1977).

Section 10  Indictment or Information

Modification or abolishment of grand jury. No person shall be held for a criminal offense unless on the presentment or indictment of a grand jury, or (p. 134) information of the public prosecutor, except in cases of impeachment, in cases cognizable by county courts, by justices of the peace, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger: provided, that the grand jury may be modified or abolished by law.

With respect to the provision in Section 10 regarding a presentment of indictment for capital crimes, a similar provision can be found in the Fifth Amendment to the U.S. Constitution.

Regarding the construction of Section 10, the South Dakota Supreme Court has ruled that the phrase “indictment of a grand jury” means the indictment of a duly and legally-constituted grand jury, drawn and impaneled according to law, and pursuant to notice required by law (State v. Johnson, 2007).

Section 11  Search and Seizure

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.

A related provision in the U.S. Constitution can be found in the Fourth Amendment.

There is substantial federal case law under the Fourth Amendment dealing with the freedom from unreasonable searches and seizures, as well as the requirements for a lawful arrest and the exceptions to the warrant requirement. This body of law encompasses a wide array of the constitutional law on criminal procedure and will not be repeated here. Generally, as interpreted by the South Dakota Supreme Court, the South Dakota State Constitution follows the requirements of the Fourth Amendment.79 Therefore, because the Fourth Amendment and Section 11 are nearly identical, the South Dakota Supreme Court has largely looked to U.S. constitutional jurisprudence when interpreting and applying Section 11 (State v. Schwartz, 2004).

The Fourth Amendment prohibition against unreasonable searches and seizures is applicable to the states through the Fourteenth Amendment (State v. Madsen, 2009). Consequently, the great majority of case law interpreting Section 11 mirrors the federal case law interpreting the Fourth Amendment. However, as acknowledged by the South Dakota Supreme Court, the state constitution may give broader protections than the Fourth Amendment gives, but the state constitution cannot take away or diminish protections granted by the Fourth Amendment.(p. 135)

One way in which Article VI, Section 11 of the South Dakota State Constitution provides greater protections than those afforded by the Fourth Amendment to the U.S. Constitution can be found in State v. Opperman (1976). In Opperman, the South Dakota Supreme Court held that a warrantless inventory search of a closed console in a car towed for a mere parking violation was an unreasonable search under the state constitution. The court recognized that under the Fourth Amendment such a search would not be an unreasonable and hence unconstitutional one, but it nonetheless interpreted the state constitution to afford greater protections than those granted by the U.S. Constitution. Although acknowledging that the language of Section 11 is almost identical to that of the Fourth Amendment, the court found that the meaning and purpose of Section 11 gave more protection to the individual than does the Fourth Amendment. In Opperman, the court held that for a warrantless inventory search to be reasonable, it had to be confined to safeguarding those items within the searching officer’s plain view.80

Even though Opperman granted broader search and seizure protections only in certain specific circumstances, criminal defendants subsequently have attempted to enlarge the scope of Opperman, arguing for broader state constitutional protections in other circumstances. However, those attempts have generally not been successful. In State v. Flittie (1982), which modified Opperman’s holding, the court held that a warrantless inventory search of a locked automobile trunk, the contents of which were not in plain view, did not violate the state constitution, as long as the good faith inventory search was done according to reasonable uniform policies. In State v. Schwartz (2004), the argument was made that Section 11 exceeded the protections of the Fourth Amendment insofar as it prohibited the search of a person’s trash without a warrant. Again, the court declined to extend Section 11 to provide constitutional protection against unreasonable searches and seizures of trash. In Schwartz, the court held that the warrantless trash searches conducted by the police were not unreasonable searches and seizures under either the Fourth Amendment or the South Dakota Constitution. Likewise, in State v. Kottman (2005), the argument was asserted that the South Dakota State Constitution gave greater protections with respect to parole searches than does the Fourth Amendment. In ruling against such broader protections, the court acknowledged that the Opperman holding had been seriously curtailed.81 The court stated that to interpret a provision of the South Dakota State Constitution in a way that would grant a higher standard of protection than a similarly-worded provision in the federal Constitution, a court must do more than just simply (p. 136) make such an interpretation or disagree with the U.S. Supreme Court’s interpretation of the federal Constitution. Instead, the court must find that the text, history or purpose of a South Dakota constitutional provision supports a different interpretation from the corresponding federal provision. In Kottman, no such finding was made.

As the South Dakota Supreme Court has ruled, the state constitutional protection against unreasonable searches and seizures is similar to that provided by the Fourth Amendment (State v. Meyer, 1998). Under both the state and federal constitutions, searches and seizures must be supported by warrants based on probable cause that the search will yield evidence of a crime (State v. Hirning, 1999). Generally, this finding of probable cause must be made before any search warrant may be issued and the warrant must be supported by an affidavit describing with particularity the place and person to be searched (State v. Jackson, 2000). Warrantless searches and seizures are unconstitutional, unless there is a showing that the actions were reasonable, based on probable cause, and that the exigencies of the situation prevented the obtaining of a warrant (State v. Meyer, 1998).

The South Dakota Supreme Court has ruled unconstitutional a state statute providing that the actual finding of property searched for by police officers under a search warrant shall constitute conclusive proof that there was probable cause for issuance of the warrant, stating that the constitution requires probable cause to exist prior to obtaining the warrant (State v. Lane, 1957). Another statute rendering all relevant evidence seized under a search warrant to be admissible, notwithstanding any defect or insufficiency in the issuance of that warrant, was also found to violate the search and seizure provisions of the state constitution (State v. McCreary, 1966).

There are, however, a number of well-recognized exceptions to the warrant requirement for any search or seizure.82 A warrantless search of an individual can be conducted when that search is made in conjunction with an arrest, so long as the search is contemporaneous with the arrest and is confined to the immediate vicinity of the arrest (State v. Meyer, 1998). Such a warrantless search is justified by the need to prevent the destruction of evidence. The protection of an arresting police officer may also justify a warrantless search; however, officer protection will not justify any and every search—only the most legitimate of safety concerns will support a warrantless protective sweep (State v. Ashbrook, 1998).

Warrantless searches may also be conducted when exigent circumstances exist (State v. Westerfield, 1997). An officer, for instance, may legally search a premises without a warrant when an emergency exists and there is no time to (p. 137) obtain a warrant, when he is in hot pursuit of an escaping suspect, when he knows the contraband is threatened with immediate destruction or removal, or when the search is incidental to a valid arrest. In order to determine when exigent circumstances exist, the court considers the following factors: 1) whether a grave offense is involved; 2) whether the suspect is reasonably believed to be armed; 3) whether a clear showing of probable cause exists, including reasonably trustworthy information to believe that the suspect committed the crime involved; 4) whether there is a strong reason to believe the suspect was on the premises; 5) whether a likelihood exists that the suspect will escape; 6) whether the entry, though not consented to, is made peaceably; and 7) the time of the entry (State v. Hanson (1979); State v. Meyer (1998)).

For the exigent circumstances exception to the warrant requirement to prevail, there must be circumstances that present a real danger to the police or public, or a real threat that evidence might be lost (State v. Dillon, 2007). The court will inquire into whether there was a reasonable belief that a delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of a suspect’s escape.

Another exception to the warrant requirement is the plain view doctrine.83 Under this doctrine, the police officer cannot have violated the Fourth Amendment to first be in a location where the evidence is in plain view, and the incriminating nature of the evidence must be readily apparent.

Automobile stops present yet another exception to the warrant requirement.84 Although probable cause is generally required for a search, the level of police suspicion necessary to stop a vehicle is not equivalent to the probable cause necessary for an arrest or a search warrant; reasonable suspicion is all that is required (State v. Lockstedt, 2005). Under the automobile exception to the warrant requirement, for instance, the legal discovery during an automobile stop of contraband ammunition creates a probable cause for police officers to believe that other parts of the vehicle might contain additional contraband or evidence, thus validating a warrantless search of the vehicle. According to the rule, if a police officer develops reasonable suspicion of the existence of other criminal activity during the course of a valid traffic stop, then the officer may expand the scope of the investigation to explore that suspicion. The test is not probable cause, but reasonable and articulable suspicion (State v. Haar, 2009).

A warrantless inspection of a business in a closely regulated industry can also be constitutional if a substantial government interest supports the regulatory scheme pursuant to which the inspection is made, if the warrantless inspection is necessary to further the regulatory scheme, and if the statute’s (p. 138) inspection program provides a constitutionally adequate substitute for a waiver (State v. Rechtenbach, 2002).

Although the text of the Fourth Amendment contains no language about remedies for violations, the U.S. Supreme Court has crafted and applied the exclusionary rule, which prohibits the admission into evidence of material obtained from an illegal search or seizure.85 The exclusionary rule is a judicially-created remedy for deterring illegal searches and seizures and for bolstering the protections contained in the Fourth Amendment and this Section (State v. Labine, 2007). However, evidence obtained by way of an invalid search will not be excluded under the good faith exception to the exclusionary rule, when an officer’s reliance on a technically sufficient but invalid search warrant is objectively reasonable (State v. Sorensen, 2004). Under this good faith exception, evidence is admissible when police officers reasonably rely on a warrant that is subsequently invalidated because a judge finds there was an insufficient basis for the issuing magistrate to find probable cause.

Even if a search warrant is overbroad, for instance, an officer’s reliance on the warrant may be objectively reasonable, and thus evidence obtained from the search is admissible under the good faith exception to the exclusionary rule. Also, under the “inevitable discovery exception” to the exclusionary rule, illegally obtained evidence may be admitted if it ultimately would have been discovered by legitimate means (State v. Shearer, 1996).

Section 12  Ex Post Facto Laws—Impairment of Contract Obligations—Privilege or Immunity

No ex post facto law, or law impairing the obligation of contracts or making any irrevocable grant of privilege, franchise or immunity, shall be passed.

A similar provision in the federal Constitution appears in Article I, Section 10.

Ex post facto prohibitions bar retroactive application of any law inflicting greater punishment for a crime than did the law existing at the time the crime was committed (Meinders v. Weber, 2000). This prohibition of ex post facto laws serves two principles. First, legislative enactments must give fair warning of their effect, and people must be able to rely on the current law until it is legislatively changed. Second, laws cannot arbitrarily or vindictively punish persons for past acts that were not criminal or were less criminal when they were committed.

A crucial issue in any ex post facto inquiry is whether the law changes the legal consequences of acts that were completed before the law’s effective date (Stumes v. Delano, 1993). Statutes that merely provide a remedy without (p. 139) affecting anyone’s substantive rights do not violate the ex post factor prohibition (Himrich v. Walter, 1935). An habitual offender statute that did not create a new offense but merely prescribed punishment for subsequent offenses, which in the discretion of the court could be made more severe than punishment provided for prior offenses, did not violate the ex post facto clause (State v. Rollinger, 1982).

The test for determining whether a statute violates the contract clause of Section 12 is the same as that used under the United States Constitution (Equipment Manufacturers Institute v. Janklow, 2002). When presented with the issue of whether a statute violates the contract clause in Section 12, the court’s first inquiry is whether there has been a substantial impairment of the contractual relationship (Buchholz v. Storsve, 2007). Yet even if there is a substantial impairment of a contractual relationship, the statute may survive if the impairment is reasonable and necessary to serve an important public purpose.

Since franchise rights conferred upon a utility by the state are subject to control by the legislature, statutory rights granted a rural electric cooperative to compete for customers within a certain territory did not constitute an irrevocable franchise within the meaning of Section 12 (Matter of Certain Territorial Electricity Boundaries, 1979). Under statutes requiring the Public Utilities Commission to assign service areas to electrical utilities, exclusive grants to utilities to provide retail electrical service within an assigned area are not irrevocable franchises in violation of Section 12, especially since the legislature retains the power to alter the regulatory scheme governing those utilities.

Section 13  Private Property Not Taken Without Just Compensation—Benefit to Owner—Fee in Highways

Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the Legislature and according to Section 6 of this article. No benefit which may accrue to the owner as the result of an improvement made by any private corporation shall be considered in fixing the compensation for property taken or damaged. The fee of land taken for railroad tracks or other highways shall remain in such owners, subject to the use for which it is taken.

This section was amended in 1962, by deleting a requirement that payment be ascertained and paid before possession was taken.

Section 13 deals with the power of eminent domain and its constitutional exercise. It prohibits the taking of private property without just compensation. A similar power and obligation exists at the federal level and is articulated in the Fifth Amendment.

The power of eminent domain is an inherent right of the state (Darnall v. State, 1961). The focus of Section 13 is on private property taken or damaged (p. 140) in the exercise of the government’s power of eminent domain; it was not intended to apply, for instance, to damages based on negligent construction or design of public works (Vesley v. Charles Mix County, 1939).

The state’s power of eminent domain can support a condemnation action to take private property for a public use, as long as the property owner is justly compensated.86 Inverse condemnation suits are brought by property owners whose property has been damaged or diminished in value by some governmental action and who have received no compensation from the government.

There is no requirement that the government compensate property owners when it exercises its police power to take property that constitutes a public nuisance or danger (Cody v. Leapley, 1991). Even where private property is intentionally, purposely, or deliberately taken or damaged by public use without the owner’s consent, there is no requirement that just compensation be given to the owner when that property poses a nuisance. This rule applies in three circumstances: a taking or damaging that occurs during actual warfare, to prevent an imminent public catastrophe or disaster, or to abate a public nuisance (City of Rapid City v. Boland, 1978). For instance, the government’s destruction of elk suffering from a contagious disease, when that destruction was necessary to prevent the spread of that disease, is not a taking of property for public use within the meaning of the constitutional provisions requiring just compensation (South Dakota Department of Health v. Heim, 1984). Whether the owner of the elk is entitled to compensation for the destruction of his herd depends on whether the destruction of that herd was necessary to abate a public nuisance imminently hazardous to public health or safety. However, if it was not necessary to kill all the elk, then whatever were unnecessarily destroyed were taken for public use within the meaning of this Section—and hence, the owner was entitled to compensation (South Dakota Department of Health v. Owen).

Section 13 has similarities to Section 2 of Article VI, which requires that due process be given for any property deprivation. For instance, even though an abatement of a public nuisance does not entitle the owner to compensation, the owner is normally entitled to due process to determine whether the property is in fact a nuisance. A summary abatement of a public nuisance is allowed only where the property constitutes a public nuisance that poses an imminent hazard to the public safety or welfare, and the destruction is the only adequate method of eliminating that hazard.

The provisions in Section 13 provide land owners more protection against a taking of their property than does the Fifth Amendment to the United States Constitution (Benson v. State, 2006). In Benson, the South Dakota Supreme Court stated that the U.S. Supreme Court had recognized that the states were (p. 141) free to impose public use requirements that are stricter than federal requirements.87 Indeed, South Dakota has consistently done so. In its interpretation of Section 13, the South Dakota Supreme Court has adopted the “use by the public” rule. This rule requires that there be a use or right of use on the part of the public. By adopting this rule over the alternative “public benefit” rule, the court has stated that the South Dakota Constitution provides its landowners more protection against a taking of their property than does the U.S. Constitution. The reason for this greater protection is because the U.S. Supreme Court, under its “public benefit” rule, has concluded that a taking from one private party of property that will ultimately go to another private party complies with the “public use” constitutional requirement as long as it ultimately serves a public purpose or benefit.

In addition to how the South Dakota Supreme Court interprets the public use requirement, there is another way in which Section 13 differs from the Fifth Amendment. The South Dakota Constitution requires that the government compensate a property owner not only when a taking has occurred, but also when private property has been damaged. Thus, even though no portion of a private property is physically taken, the owner may still be entitled to compensation under Section 13 if the government action causes damage to that property, as long as the consequential injury is peculiar to the owner’s property and not of a kind suffered by the public as a whole (Hurley v. State, 1966).

The South Dakota Supreme Court has stated that the damage clause in Section 13 affords more rights to its citizens than does the Fifth Amendment. Essentially, the South Dakota Constitution provides an additional theory by which a plaintiff may bring a claim for damages against the state. This reflects the intent of Section 13 to extend the compensation remedy to incidental or consequential injuries to property that is not actually taken for public use. Any compensation, however, requires that the consequential injury be peculiar to the owner’s land and not of a kind suffered by the public as a whole (State Highway Commission v. Bloom, 1958). This rule, for instance, has been applied in a number of South Dakota cases involving a change in street grade, which in turn damaged the abutting property that was not actually physically invaded (see, e.g., Hurley v. State, 1966). Public takings warranting compensation have also been found where a county, by means of a drainage ditch along a county road, artificially collected surface water from the right-of-way and from lands of other owners and discharged it in exaggerated quantities not into a natural water course but onto another individual’s land, where it remained until disappearing through natural means as percolation and evaporation (Bogue v. Clay County, 1953).(p. 142)

To recover under the consequential damages rule, a property owner must suffer an injury that is different in kind and not merely in degree from that experienced by the general public (Krier v. Dell Rapids, 2006). For instance, in Krier, it was found that an owner of property abutting a township road that had its surface changed from asphalt to gravel did not sustain an injury that was separate and distinct from the public as a whole, and thus was not entitled to recover consequential damages in an inverse condemnation action. The injury involving the alleged decrease in the owner’s property value due to resurfacing was the same as the injury to other properties and differed only in amount or degree.

The South Dakota State Constitution and the U.S. Constitution are similar in their definitions and applications of the “takings” provision. The purpose of the takings clause under the Fifth Amendment is not to prohibit all governmental takings or interference with private property, but rather to require that compensation be paid by the government in the event that government action rises to a taking (Benson v. State, 2006). A plaintiff seeking redress against the government under a regulatory takings claim must proceed under one of four theories. The plaintiff must allege: (1) a per se regulatory physical taking, where the government requires an owner to suffer a permanent physical invasion of her property; or (2) a per se total regulatory taking that deprives an owner of all economically beneficial uses of the property, but an “intermittent and temporary” physical invasion does not qualify as a per se regulatory taking (Benson v. State); or (3) a regulatory taking when a temporary or partial taking is alleged; or (4) a land-use exaction violating the standards as set forth in Nollan v. California Coastal Commission.88

When considering a purported regulatory taking, the cause-in-fact of the harm must be examined. In doing so, the court must identify the specific harm to the property and whether the actions causing that harm can be attributed to the state or to some other entity or person not under the direct authority or control of the state (Benson v. State, 2006). The general rule is that while property may be regulated to a certain extent, if that regulation goes too far it will be recognized as a taking. A physical occupation that is less than permanent and amounts to no more than a temporary physical invasion does not constitute a per se regulatory physical taking (Benson v. State, 2006).

Section 14  Resident Aliens’ Property Rights

No distinction shall ever be made by law between resident aliens and citizens, in reference to the possession, enjoyment or descent of property.

(p. 143)

State law controls the right of an alien to hold real property in the particular state, and most states give aliens the right to own real property. Under common law, aliens had property rights similar to those of citizens. Currently, most states have enacted statutes following the common law. This section coincides with the general rule and gives aliens the right to hold property in South Dakota.

Section 14 has never been amended, nor has it been the subject of significant case law. However, the South Dakota Supreme Court has ruled that certain benefits from welfare programs are not “property” for purposes of Section 14’s prohibition of any distinction between resident aliens and citizens (Cid v. South Dakota Department of Social Services, 1999). Since a legal resident alien has no protective property interest in terminated welfare benefits, such termination does not violate the state constitutional provision prohibiting distinctions between resident aliens and citizens regarding the possession or enjoyment of property.

Section 15  Imprisonment for Debt

No person shall be imprisoned for debt arising out of or founded upon a contract.

Section 15 has roots in medieval England’s practice of imprisoning debtors.89 This practice was imported to America, but was quickly subject to reform, beginning in the eighteenth century. Eventually, every state banned imprisonment as a remedy against or enforcement of broken debt agreements.90

Section 15 has been applied in a fairly limited array of actions. Citing this section, the South Dakota Supreme Court struck down a statute subjecting a contractor to imprisonment for failing to pay creditors furnishing labor and materials (Commercial National Bank of Sturgis v. Smith, 1932). According to the court, the legislature cannot provide that a contractor shall be deemed guilty of a crime punishable by imprisonment for failing to pay, from the money paid to him under contract, the claims of creditors furnishing labor and materials.

This section was also considered in connection with a statute prohibiting insufficient-funds or no-account checks. A defendant could be convicted, without violating Section 15 and its prohibition of imprisonment for debts arising out of or founded upon a contract, for writing a check against a non-existing account to a store displaying a sign stating that a $5.00 charge would be imposed for every returned check. A key distinction is that the (p. 144) statute prohibited the passing of “no account” checks, rather than the failure to pay checks (State v. Mitchell, 1981). In Mitchell, the defendant claimed that the store’s practice of imposing a charge for returned checks created a contractual arrangement, preventing his imprisonment for passing the bad check. But according to the court, the South Dakota Bad Check Law did not deal with the debt evidenced by the check, and so could not be termed a criminal sanction for failure to pay a civil debt. Consequently, the defendant’s conviction did not violate the constitutional prohibition of imprisonment for debts arising out of or founded upon contract.

The court has also held that conditioning probation on a defendant’s repayment of his appointed counsel’s fees does not violate Section 13 (White Eagle v. State, 1979). In addition, a jail sentence for contempt in refusing to pay an alimony decree has not been found to constitute an imprisonment for a debt arising out of a contract (Fritz v. Fritz, 1922).

There are two issues that must be addressed in any case involving Section 15. The first involves the determination of whether a debt exists. In State v. Allison (2000), the court articulated a narrow definition of debt as “a liability to pay money.” The court further reasoned that Section 15 only pertained to “private debts,” and not to a more general obligation of the type imposed by statute and by a National Guard enlistment agreement mandating the return of military equipment at the end of enlistment.

The second issue under Section 15 involves a finding that an existing debt must arise out of or be founded on a contract. The question here, for instance, can be whether a particular debt arises out of a contract, or whether it arises out of tort, statute, or some other source of obligation.

Section 16  Military Subordinate to Civil Power—Quartering of Soldiers

The military shall be in strict subordination to the civil power. No soldier in time of peace shall be quartered in any house without consent of the owner, nor in time of war except in the manner prescribed by law.

This section has never been amended and has not been the subject of any significant case law.

Section 17  Taxation Without Consent—Uniformity

No tax or duty shall be imposed without the consent of the people or their representatives in the Legislature, and all taxation shall be equal and uniform.

Section 17’s requirement of equal and uniform taxation is not necessarily violated by a statute imposing occupation or privilege taxes (Schmitt v. Nord, 1947). In Schmitt, a statute imposing an excise tax on retail sales of butter substitutes did not violate the constitutional provision requiring equal and (p. 145) uniform taxation. The test to be applied, according to the court, was whether the classification was reasonable and bore some relation to the subject at hand. After examining the purpose and aims of the statute, the court found that the classification was valid, since it arose from differences related to state revenue.

The test of uniformity under Section 17 is substantially the same as under the Fourteenth Amendment to the U.S. Constitution (Dean v. Coddington, 1964). However, in Dean, the court held that Section 17 only requires that taxation be equal and uniform, not that revenues from that taxation be uniformly distributed. Thus, a plaintiff could not challenge a taxation scheme on the grounds that the uniformity provision of Section 17 requires those taxes to be uniformly distributed.

Section 17 does permit classifications. The legislature, for instance, may select and classify some occupations for taxation and omit others, provided the classification is reasonable and bears some relation to the subject at hand (State ex rel. Botkin v. Welsh, 1933). The court has also ruled that the basis of classification used in a statute imposing a tax according to the number of stores owned by a taxpayer is reasonable and related to the subject involved, and is therefore permissible under Section 17 (Roddewig v. Kutcher, 1942). However, Section 17 requires that the taxes imposed shall fall similarly on all persons who are in substantially the same situation (In re Watson, 1903).

Section 18  Equal Privileges or Immunities

No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.

It should be noted that Section 18 applies to both citizens and corporations. This textual language is different from related provisions in the U.S. Constitution. Similar provisions in the federal Constitution regarding the granting of special privileges can be found in Article III, Section 23, and the much-applied and frequently interpreted Equal Protection Clause can be found in the Fourteenth Amendment.

Under both the Fourteenth Amendment to the U.S. Constitution and Section 18 of the South Dakota Constitution, equal protection of the law requires that the rights of every person under similar circumstances be governed by the same rule of law (State v. Geise, 2002). Equal protection does not require that all persons be treated identically, but it does require that distinctions have some relevance to the purpose for which the classifications are made.

In its equal protection jurisprudence, the U.S. Supreme Court has developed a multi-tiered level of scrutiny. Under this approach, different levels of scrutiny are applied to different types of legislative classifications. The most deferential level of scrutiny is rational basis review, which requires only a rational relationship between the legislative classification and a legitimate (p. 146) government purpose.91 The most demanding type of judicial review is strict scrutiny, which applies to certain legislative classifications that improperly impinge on fundamental rights or suspect classes.92 Under strict scrutiny, the legislative classification must be necessary to serve a compelling government purpose, which cannot be achieved through any less restrictive means. Between rational basis review and strict scrutiny lies intermediate scrutiny, which has been applied to classifications involving gender and illegitimacy.93 Under intermediate scrutiny, the classification must serve an important government purpose and must be substantially related to the achievement of that purpose.

In Geise, the defendants appealed from a conviction of violating the vehicle weight restriction laws, arguing that the weight restrictions on different classes of vehicles violated equal protection guarantees, since vehicles with overweight permits were treated differently from non-permitted overweight vehicles. The state court disagreed. Finding that the statute did not encompass a fundamental right, a suspect classification or an intermediate scrutiny classification, the court applied a two-pronged rational basis test. First, an inquiry was made into whether the statute sets up arbitrary classifications among various persons subject to it; and second, an analysis occurred into whether a rational relationship between the classification and some legitimate legislative purpose existed.

In applying the first prong, the court looks to see if the statute applies equally to all people. It does not require that all persons be dealt with identically, but it does require that any distinctions made have some relevance to the purpose for which those distinctions are made. In Geise, the court found that the statutes applied equally to all vehicle operators in similar circumstances, and the permitting process applied equally to all classes similarly situated—the rule being that equal protection applied to persons, not vehicles. The court then moved to the second prong to determine whether there was a rational relationship between the classification and some legitimate legislative purpose. The court found that the overweight statute served the legitimate public goal of preserving the public roadways from damage caused by overweight vehicles. According to the court, the state does not violate the equal protection clause merely because the classifications made by its laws are imperfect. If the classification has some reasonable basis, it does not offend the constitution simply because the classification is not made with mathematical precision or because in practice it results in some inequality (State v. Geise, 2002).

The equal protection clause in the South Dakota Constitution largely mirrors the Equal Protection Clause in the Fourteenth Amendment of the U.S. (p. 147) Constitution. Under the equal protection approach, there are three different tests that are applied, depending upon the nature of the interest involved. First, the strict scrutiny test applies only to fundamental rights or suspect classes (Budahl v. Gordon and David Associates, 1980). Second, the intermediate or substantial relation test applies to legitimacy and gender classifications (State ex rel. Wieber v. Hennings, 1981). Finally, the rational basis test applies to all other classes (Eischen v. Minnehaha County, 1985). Thus, the overweight vehicle statute in Geise was evaluated under the rational basis test, since those statutes did not encompass a fundamental right, a suspect classification, or an intermediate scrutiny classification.

The rational basis test, rather than a heightened scrutiny test, was used to determine a legal resident alien’s equal protection challenge to a state administrative rule resulting in the termination of certain welfare benefits (Cid v. South Dakota Department of Social Services, 1999). Classifying aliens differently does not constitute an equal protection violation, unless the classifications are not rationally related to some legitimate government purpose. According to the court in Cid, the classification of aliens bore a rational relationship to the Department of Social Services’ legitimate interest in implementing the nation’s immigration policy and its uniform rules with respect to alien eligibility for public benefits.

A statute that imposed a special limitation period on minors with medical malpractice claims, as opposed to minors with any other kind of tort claim, was found to violate the equal protection provisions of both the federal and state constitutions (Lyons v. Lederle Laboratories, 1989). Applying the two-pronged rational basis test, the court ruled that the classification was arbitrary and not rationally related to the legitimate purpose of alleviating a medical malpractice crisis. In Lyons, the court found that the statute violated the first prong, since it did not apply equally to all people; rather, it created an arbitrary classification of minors who have medical malpractice claims, as opposed to minors with any other kind of tort claim who have a longer time period in which to bring those claims. Having determined that an arbitrary classification exists, the court then inquired into whether there is a rational relationship between the classification and some legitimate legislative purpose. Under this inquiry, the court did not find any rational basis for assuming that medical malpractice claims will diminish simply by requiring that lawsuits be instituted at an earlier date.

In an equal protection challenge, the burden is on the one attacking the legislative classification to defeat every conceivable basis which might support it (People in Interest of Z.B., 2008). Under rational basis review, the state’s classification scheme will be upheld if there is a plausible or conceivable reason for the distinction.

In the criminal context, the equal protection clause prohibits the government from discriminatory enforcement of the law (State v. Secrest, 1983). To (p. 148) establish a violation of the equal protection clause, a defendant must prove selective enforcement based on classifications such as race, sex, or religion. The court has also interpreted Section 18 as prohibiting selective enforcement based upon an unreasonable or arbitrary classification (State v. Secrest, 1983). However, no constitutional problem arises when, because an action violates two different criminal statutes, the government picks one of those statutes under which to prosecute, providing that the government does not discriminate against any class of defendants. Furthermore, the fact that a prosecutor may be influenced by the penalties available for the charges does not alone give rise to a violation of equal protection. Thus, in Secrest, the court upheld a conviction under statutes that imposed greater penalties for habitual defenders. However, in general, imposing on one person different punishments or different degrees of punishment than are imposed on all others for like offenses is a denial of equal protection. On the other hand, prosecutors are granted very broad prosecutorial discretion without violating equal protection (State v. Gerdes, 1977).

Section 19  Free and Equal Elections—Right of Suffrage—Soldier Voting

Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage. Soldiers in time of war may vote at their post of duty in or out of the state, under regulations to be prescribed by the Legislature.

The South Dakota Supreme Court announced in Bailey v. Jones (1966) that Section 19 incorporated the “one-person, one-vote” doctrine announced by the U.S. Supreme Court in Baker v. Carr (1962). In Bailey, the court found that the election of county commissioners had to comply with the one-person, one-vote doctrine. Holding that the Board of Commissioners of Minnehaha County was unconstitutionally apportioned, the Bailey court found that commissioners from inside the city represented 32,733 persons, and those outside the city represented 7,036 persons—a ratio of over 4 to 1. Moreover, three commissioners representing 21,109 persons (24 percent of the county’s population) constituted a majority of the board and could outvote the other two commissioners who represented 65,466 persons (76 percent). According to the court, in order that elections “shall be free and equal,” as required by Section 19, the elections of county commissioners had to comply with the one-person, one-vote rule.

The electoral scheme in County of Tripp v. State (1978) was also found to violate Section 19. In County of Tripp, all of the Todd County voters were allowed to vote for candidates from all three Tripp County districts, whereas Tripp County voters were only allowed to vote for candidates from their own districts. Because there was no rational basis, much less a compelling state interest, for the requirement that voters reside in Todd County in order to vote for (p. 149) all three commissioners, the court ruled the election process unconstitutional. The court found that this scheme essentially disenfranchised Tripp County residents, who were excluded from participation in the election of two of their three county commissioners, thus violating the “one-person, one-vote” doctrine. According to the court: “The right of suffrage can be denied by dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”

Section 20  Courts Open—Remedy for Injury

All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.

This provision is often referred to as the “open courts” provision.94 Its connection with the sovereign immunity doctrine is explained and analyzed under the discussion presented in the chapter on Article III, Section 27.

This open courts provision provides a right of access to the courts (Green v. Siegal, Barnett & Schutz, 1996). It guarantees that for any causes of action recognized by law, the courts shall be open and afford a remedy. However, reasonable conditions on those causes of action do not violate this provision. Nor can this provision be used to create new causes of action or to prohibit statutorily recognized barriers to recovery (Hancock v. Western South Dakota Juvenile Services Center, 2002). Section 20 does not allow courts to usurp functions properly belonging to the legislature. The provision just means that where a cause of action exists at common law without statutory abrogation, a plaintiff has the right to litigate in the courts of the state (Oien v. City of Sioux Falls, 1986). The open courts provision does not prevent the legislature from changing the law; nor does it abolish sovereign immunity. However, it can limit some sovereign immunities in ways discussed under Section 27 of Article III.

The open courts provision in this section is similar to provisions in thirty-seven other state constitutions, and these provisions have roots back to the Magna Carta.95 In its first application of this section, the South Dakota Supreme Court upheld a state law prohibiting appeals from judgments in cases involving $75.00 or less.96 According to the court, the right to an appeal was not a common law right and hence could be restricted by the legislature.(p. 150)

In Simons v. Kidd (1949), the South Dakota Supreme Court somewhat narrowly interpreted Section 20 as intended to prevent legislative abolition of only those common law causes of action that existed when the South Dakota State Constitution was adopted in 1889. According to Simons, the open courts provision of the South Dakota Constitution meant that a person with a known remedy could not be prevented from seeking redress in a South Dakota court. This did not mean that the open courts provision created a right of action that did not exist at common law; it only meant that the provision prohibited the state legislature from abolishing a common law remedy. After that decision, however, the court did not always seem to follow this narrow rule of Simons, thus causing some uncertainty as to whether Section 20 only protects those causes of action that existed in 1889.97

Despite numerous challenges, the South Dakota Supreme Court has almost always upheld statutes of limitation against attacks based on the open courts provision. However, in Daugaard v. Baltic Co-op Building Supply Association (1984), the court did rule that a particular statute of limitations violated Section 20. There were two limitation statutes involved in Daugaard. The first statute provided that no damages action arising out of deficient design, inspection, or construction of an improvement to real property may be brought against a person furnishing that design, inspection, or construction more than six years after substantial completion of the construction. The second statute stated that no cause of action against a manufacturer, lessor, or seller of a product could be brought more than six years after the date of delivery of the completed product to its first purchaser or lessee who was not engaged in the business of selling that product. These statutes, according to the court, unconstitutionally locked the courtroom door before appellants had an opportunity to open it, thereby violating the open courts provision.

Acceptable statutes of limitation simply place obstacles or preconditions to the entry into court; they do not abolish or extinguish causes of action altogether, as did the statutes in Daugaard. The court distinguished constitutionally acceptable statutes of limitation as follows:

Statutes of limitation proceed on the theory that a plaintiff has a full opportunity to try his rights in the courts within certain time limits. This statute (in this case) bars all recovery without allowing any time for the commencement of an action, if the action accrues six years following the completion of a building. No action by a plaintiff can remedy the situation.

In Daugaard, the limitations statutes barred or prohibited actions which had not yet accrued. They did not merely limit the remedy; they barred the right of action from ever coming into existence. Although the statute in Daugaard(p. 151) purported to be a statute of limitation, its real effect was to bar an action before it could even accrue. As a result, the court ruled that the statute deprived the plaintiffs of a vested right in a cause of action for negligence, thereby violating the open courts provision.

Similarly, in Oien v. City of Sioux Falls (1986), the court overturned a statute granting municipalities immunity from negligence suits when those municipalities performed a proprietary function—e.g., constructing or maintaining a public swimming pool. The statute essentially barred a cause of action against a municipality performing a proprietary function; and since such actions had been allowed before the statutes were enacted, the court ruled that the statutes abrogated a common law cause of action in violation of the open courts provision.

In Kyllo v. Panzer (1995), the South Dakota Supreme Court ruled that the state legislature violated the open courts provision when it extended sovereign immunity to state employees performing ministerial functions. Again, because an injured individual had a common law cause of action for negligence against state employees performing ministerial functions, the court held that the legislature could not abrogate such actions, especially since such causes of action predated the adoption of the South Dakota Constitution. According to the court, even though the open courts provision allows the state to regulate a common law remedy, it prevents the state from eliminating that remedy. Consequently, in deciding the case, the Kyllo court had to decide whether plaintiffs had a common law claim and whether the state had eliminated that claim. And in doing so, the court held that the state could not confer immunity on negligent public employees performing ministerial functions.

Section 21  Suspension of Laws Prohibited

No power of suspending laws shall be exercised, unless by the Legislature or its authority.

This section has not been the subject of any significant commentary or case law.

Section 22  Attainder by Legislature Prohibited

No person shall be attainted of treason or felony by the Legislature.

A bill of attainder is a legislative act prescribing a particular person guilty of a crime, without trial or conviction according to the rules of procedure. The U.S. Constitution in Article I, Sections 9 and 10, prohibits the bill of attainder or act of attainder.(p. 152)

This section has not been the subject of any significant commentary or case law. It has relation to the Bill of Attainder Clause in the federal Constitution at Article I, Section 9.

Section 23  Excessive Bail or Fines—Cruel Punishments

Excessive bail shall not be required, excessive fines imposed, nor cruel punishments inflicted.

The federal counterpart to the cruel punishments provision in Section 23 can be found in the Eighth Amendment to the U.S. Constitution. Generally, state and federal constitutional provisions barring cruel and unusual punishments refer to the character of the punishment, such as barbaric penalties involving physical torture, rather than the duration of the punishment (State v. Knecht, 1997). Although punishment by imprisonment is not cruel per se, it may be constitutionally offensive when the duration of the sentence prescribed is so excessive or disproportionate to the crime committed so as to shock the conscience.

The court has also ruled that the death penalty is not cruel punishment per se in violation of the South Dakota Constitution (State v. Moeller, 2000). In support of this ruling, the court argued that the death penalty is recognized in the state constitution, that capital punishment has received legislative approval through legislative enactments of death penalties throughout the state’s history, that the death penalty has been in effect for most of the state’s history, and that the death penalty serves the penological purposes of satisfying society’s need to impose fitting punishments for grievous crimes and of deterring prospective capital offenders.

In Moeller, the defendant argued that the South Dakota State Constitution imposed greater restrictions on capital punishment than did the Eighth Amendment to the U.S. Constitution. This claim was based on the slightly different language in the two provisions. The defendant argued that South Dakota’s constitutional prohibition on “cruel punishments” is a greater restriction on government power than its federal counterpart prohibiting “cruel and unusual punishments.” In response, the court in Moeller used a three-part test to determine the constitutionality of sentences under Section 23, similar to the test used by the Supreme Court under the Eighth Amendment. In a subsequent case, the court ruled specifically that the death penalty by lethal injection is not cruel punishment under either the federal or the state constitution (State v. Piper, 2006).

Generally, most sentences have been upheld by the South Dakota Supreme Court as not violating Section 23. However, in Bult v. Leapley (1993), the court struck down a defendant’s life sentence without possibility of parole for the kidnapping of a five-year-old girl who he also attempted to rape. The court (p. 153) also found that the sentence reflected a determination that the defendant was beyond rehabilitation, even though defendant’s prior history showed that he might in fact be amenable to rehabilitation. Moreover, the defendant was only eighteen at the time the crimes were committed (Bult v. Leapley, 1993).

An issue of difference between the Eighth Amendment and Section 23 of Article VI has in the past arisen in the test used by the South Dakota Supreme Court to determine whether a certain sentence constitutes a cruel punishment.98 Because the text of Article VI, Section 23 of the South Dakota Constitution resembles the Eighth Amendment, the question was whether the court was using a state constitutional test that was different from the Eighth Amendment test, or whether the court was just applying a modified Eighth Amendment test. According to one commentator, “South Dakota has taken a different approach for determining whether a proportionality requirement exists within its own constitutional provision prohibiting cruel and unusual punishment.”99

The South Dakota Supreme Court has ruled that studies suggesting that members of one race receive higher penalties do not alone establish cruel and unusual punishment or show a violation of equal protection in an individual case, unless there is evidence that the decision-makers in that particular case acted with a discriminatory purpose (State v. Hatchett, 2003). If the circumstances justify the sentence, and if a defendant cites no instances in which others with similar records received significantly different sentences, the court will not overturn that sentence because of alleged racial disparity in sentencing in general. Absent a sentence that is so excessive in duration that it shocks the conscience of the court, a sentence within statutory limits is generally not reviewable on appeal (State v. Knecht, 1997).

Section 24  Right to Bear Arms

The right of the citizens to bear arms in defense of themselves and the state shall not be denied.

A somewhat similar provision in the federal Constitution appears in the Second Amendment. However, as the text of the Second Amendment refers to state militia, there is a difference in wording between the two provisions. Another difference lies in the fact that this provision in Section 24 expressly recognizes the right to bear arms for personal self-defense, whereas the Second Amendment does not.(p. 154)

Although Section 24 has been rarely cited or enforced by the South Dakota Supreme Court, it did rule, in an opinion demonstrating the court’s willingness to comply with the spirit of Section 24, that simply because a defendant is not permitted to be in possession of a firearm does not mean he is necessarily guilty of violating a statute prohibiting the possession of a firearm, if he should come into control of the firearm for purposes of self-defense (Conaty v. Solem, 1988). This is especially true if the statute does not expressly demonstrate a legislative intent to supersede self-defense statutes by precluding such a person from claiming self-defense.

Section 25  Treason

Treason against the state shall consist only in levying war against it, or in adhering to its enemies, or in giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or confession in open court.

The treason counterpart in the U.S. Constitution appears at Article III, Section 3. However, there has been no significant commentary or case law on this provision in the South Dakota State Constitution.

Section 26  Power Inherent in People—Alteration in Form of Government—Inseparable Part of Union

All political power is inherent in the people, and all free government is founded on their authority, and is instituted for their equal protection and benefit, and they have the right in lawful and constituted methods to alter or reform their forms of government in such manner as they may think proper. And the state of South Dakota is an inseparable part of the American Union and the Constitution of the United States is the supreme law of the land.

Related provisions in the South Dakota State Constitution can be found in Article XXIII and Article II, Section 1, which deal with the amendment of the constitution and the process of initiative and referendum. For more discussion, see the analysis of those particular provisions.

For related provisions in the federal Constitution, see Article IV, Section 1 (which addresses full faith and credit, public acts, records and judicial proceedings of sister states), the Privileges and Immunities Clause in Article IV, Section 2, as well as the voting provisions in the Twenty-Sixth Amendment to the U.S. Constitution. Section 26 will also have applicability to the law of federal preemption of state law and state sovereign immunity.

The South Dakota Supreme Court has ruled that a law passed in great haste does not violate Section 26, insofar as it does not necessarily usurp the political power of the people to alter or reform their government (Independent (p. 155) Community Bankers Association of South Dakota, Inc. v. State By and Through Meierhenry, 1984).

Section 27  Maintenance of Free Government—Fundamental Principles

The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue and by frequent recurrence to fundamental principles.

This provision has never been applied or enforced by the South Dakota Supreme Court. It may have some analogy in the Ninth Amendment to the U.S. Constitution, insofar as it seems to refer to fundamental rights. It also seems to reflect a kind of civic republicanism theory prevailing at the time of passage of the U.S. Constitution and still strongly influential at the time of the drafting and ratification of the South Dakota State Constitution. This civic republicanism looked to civic virtue among the populace as necessary and vital to the maintenance of a healthy democracy.100

Section 28  Right to Vote by Secret Ballot

The rights of individuals to vote by secret ballot is fundamental. If any state or federal law requires or permits an election for public office, for any initiative or referendum, or for any designation or authorization of employee representation, the right of any individual to vote by secret ballot shall be guaranteed.

This section was submitted as an amendment to the state constitution to the voters at the November 2, 2010 general election.(p. 156)


68  Robert F. Williams, The Law of American State Constitutions (2009).

70  See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

71  See Matter of Estate of Washburn, 575 N.W.2d 245 (S.D. 1998); Knowles v. U.S., 544 N.W.2d 183 (S.D. 1996).

72  Compare Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (applying rational basis scrutiny to federal substantive due process claims) with Ex Parte Hawley, 115 N.W. 93, 95 (S.D. 1908) (applying “real and substantial relation” scrutiny). However, with respect to procedural due process, the protections given by the Fourteenth Amendment are coextensive with those given the South Dakota Constitution. See, e.g., Matter of Estate of Washburn, 575 N.W.2d 245, 250 (S.D. 1998); Flockhart v. Wyant, 467 N.W.2d 473, 476 (S.D. 1991). Unfortunately, any debate regarding the initial drafting and acceptance of Section 2 of Article VI has been lost. See 1 Constitutional Debates of South Dakota at 281 (1907); Gilbert v. Flandreau Santee Sioux Tribe, 725 N.W.2d 249, 257 (2006).

73  See discussion of State v. Nuss under Article VI, Section 1, above.

74  Ronald Parsons & Sheila Woodward, The Heart of the Matter: Substantive Due Process in the South Dakota Courts, 47 S.D. L. Rev. 185 (2002).

75  544 N.W.2d at 195.

76  For a discussion of how the federal Establishment Clause does allow public funds to go to religious organizations in certain circumstances, see Patrick M. Garry, Religious Freedom Deserves More Than Neutrality, 57 Fla. L. Rev. 1 (2005).

77  For a discussion on the U.S. Supreme Court’s neutrality approach, see Garry, Religious Freedom, 9–15.

78  William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977).

79  For a discussion of South Dakota interpretations and applications, see Wendy Kloeppner, South Dakota Fails to Recognize A Reasonable Expectation of Privacy in a Patrol Vehicle, 42 S.D. L. Rev. 469 (1998).

80  For a discussion of constitutional law principles governing automobile searches, see Grant Walker, No Limits. State v. Martin: The Scope of a Warrantless Inventory Search, 47 S.D. L. Rev. 157 (2002).

81  See State v. Hejhal, 438 N.W.2d 820 (1989).

82  See generally Emily Sovell, State v. Hanson: Has the Exigent Circumstances Exception to the Warranty Requirement Swallowed the Rule?, 45 S.D. L. Rev. 163 (2000).

83  See generally Barton Raymond Banks, State of South Dakota v. Vogel and the Open Fields Exception to the Fourth Amendment, 35 S.D. L. Rev. 135 (1989).

84  See generally Carla Kock, State v. Akuba: A Missed Opportunity to Curb Vehicle Searches of Innocent Motorists on South Dakota Highways, 51 S.D. L. Rev. 152 (2006).

85  See, for instance, the Court’s articulation of the exclusionary rule in Mapp v. Ohio.

86  For a discussion of measuring the compensation to be paid in condemnation proceedings, see William Carroll, City of Sioux Falls v. Kelley: Failing to Rein in Runaway Damages in Condemnation Proceedings, 40 S.D. L. Rev. 177 (1995).

87  Kelo v. City of New London, 545 U.S. 469 (2005).

88  Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

89  For a general historical background of Section 15, see Becky Vogt, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. L. Rev. 334 (2001).

90  Id. at 347.

91  Romer v. Evans, 517 U.S. 620 (1996).

92  Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976).

93  U.S. v. Virginia, 518 U.S. 515 (1996).

94  For a discussion of this provision, see Gary Jensen, Legislative Larceny: The Legislature Acts Unconstitutionally When It Arbitrarily Abolishes or Limits Common Law Rights to Redress For Injury, 31 S.D. L. Rev. 82 (1985).

95  Paul Linde, Kyllo v. Panzer: The South Dakota Supreme Court Declares Statutes Unconstitutional Which Limited State Employee Liability, 42 S.D. L. Rev. 327, 344 (1997).

96  McClain v. Williams, 73 N.W. 72, 74 (1897).

97  See Gail Eisland, Miller v. Gillmore: The Constitutionality of South Dakota’s Medical Malpractice Statute of Limitations, 38 S.D. L. Rev. 672 (1993).

98  Stephanie Carlson, State v. Peck: Proportionality of Sentences—Should It Be a Necessary Factor in Determining Whether a Sentence Shocks the Conscience of the Court?, 40 S.D. L. Rev. 130 (1995).

99  Joel Hunter, State v. Bonner: In Search of an Objective Eighth Amendment Analysis for “Cruel and Unusual Punishment” in South Dakota, 44 S.D. L. Rev. 399, 414 (1999).

100  For a greater discussion of these principles and how they were reflected in the South Dakota experience, see Lauck, “The Organic Law of a Great Commonwealth.”