Appellate practice in the South Dakota Supreme Court.

• Author: Parsons, Ronald A., Jr.

One of the true rarefied privileges that a South Dakota attorney can experience is handling an appeal before the South Dakota Supreme Court. It can also be one of the most complex and imposing. This need not be so. This article is intended to serve as an introduction and practical reference guide for appellate practice in the state's only appellate court. It is designed to assist resident and non-resident attorneys who may be unfamiliar with South Dakota's rules of appellate procedure, as well as those of us whose memories may need to be periodically refreshed. Of course, the purest and most current reservoir for such information will always be the rules of appellate procedure found in the South Dakota Codified Laws. This manual is simply intended to distill the principal rules into an easily accessible format and supplement them with some experiential description of their application in practice.

1. APPELLATE RESOURCES

   1. UNIFIED JUDICIAL SYSTEM WEBSITE

      The official website of the South Dakota Unified Judicial System is http://www.sdjudicial.com. Information on this website includes the Supreme Court's calendar for the upcoming term of court for argued cases and submitted cases for which argument will not be held, archived calendars for terms of court dating back to 2002, published decisions dating back to 1996, lists of cases dismissed by summary disposition, and a website search engine. Audio of oral arguments is broadcast live through this website, recorded, archived online, and available for listening at any time. All oral arguments after September 2001 are archived. No reference to a case on appeal will be found on the website until the case is placed on the calendar for the upcoming term of court (whether argued or not). (1) General information and resources regarding practice in South Dakota may be found on the State Bar of South Dakota website, which is http://www.sdbar.org.

   2. RULES OF APPELLATE PROCEDURE

      The South Dakota Rules of Appellate Procedure governing Supreme Court practice for civil cases are contained in chapter 15-26A of the South Dakota Codified Laws (SDCL). Additional statutes concerning Supreme Court procedure are contained in SDCL chapters 15-24, 15-25, and 15-30. Statutes specifically pertaining to criminal appeals are contained in SDCL chapter 23A-32. The provisions of the civil rules are applicable in criminal appeals except to the extent that they conflict with SDCL chapter 23A-32. (2) In addition, except as otherwise indicated by statute or rule, the statutes and rules of practice and procedure in the circuit courts apply to practice and procedure in the Supreme Court. (3) Proposed rule changes are identified and tracked on the Supreme Court's website listed above.

   3. SUPREME COURT CLERK'S OFFICE

      The Supreme Court Clerk's Office, housed in the state capitol building, manages all appeals to the South Dakota Supreme Court. The office is extraordinarily helpful. All briefs, pleadings, and correspondence should be addressed to the Supreme Court Clerk's Office, South Dakota Supreme Court, 500 East Capitol Avenue, Pierre, SD 57501-5070. The general telephone number is (605) 773-3511. No faxes are permitted without prior authorization granted by the Clerk's Office. (4) All public contact information appears on the website listed above.

   4. HISTORICAL RESOURCES

      1. Legislative History

         The primary custodian of information regarding the legislative history of South Dakota statutes is the Legislative Research Council (LRC), located on the third floor of the State Capitol. The general telephone number is (605) 773-3251. The LRC website is http://legis.state.sd.us. The LRC website contains basic legislative history for bills considered in the House or Senate dating back to the 1997 legislative session. For recent years, this information has been expanded to include audio recordings of most legislative committee hearings.

         Basic legislative history dating before 1997 is generally limited to three sources. Two bound publications, the Daily Senate Journal and Daily House Journal, are published for each legislative session detailing actions taken in each chamber and their respective committees. In addition, the South Dakota Code Counsel publishes the Session Laws for each legislative session containing the enacted bills, joint resolutions, and proposed constitutional amendments passed for that session, with overstrikes and underscores added to show the effects of amendments. The LRC maintains some limited additional information from past legislative sessions, such as committee reports and records. Much of it is preserved only on microfilm. In addition, the State Archives of the South Dakota State Historical Society, located in the Cultural Heritage Center in Pierre, house many state, county, and local government records dating back to the Dakota Territory. Its website is http://history.sd.gov. The Supreme Court has indicated in several cases that it does not find existing legislative history particularly helpful when attributed to the views of an individual legislator rather than reflecting the intent of the body as a whole. (5)

      2. Constitutional History

         The primary source of information regarding South Dakota's constitutional history is the two-volume South Dakota Constitutional Debates. (6) These volumes cover the debates from the 1885 constitutional convention, at which the South Dakota Constitution was drafted and approved, and the 1889 convention, at which the 1885 constitution was ratified following South Dakota's long-delayed admission to the United States. For a helpful index of these debates, see Chief Justice David Gilbertson & David S. Barari, Indexing the South Dakota Constitutional Conventions: A 21st Century Solution to a 125 Year Old Problem, 53 S.D.L. REV. 260 (2008). Although the bound volumes of the constitutional debates have become a collector's item and are not widely available for purchase, they have been reproduced on Dakota Disc (a collection of South Dakota cases, legal forms, and other resource materials on CD-Rom). (7)

         In the 1970's, pursuant to a constitutional revision commission, the articles in the South Dakota Constitution relating to the Executive and Judicial Departments were substantially revised and approved by a vote of the people. At the same time, a proposed revision of the article related to the Legislative Department was twice rejected by popular vote. The Legislative Research Council retains some records related to these and other enacted or proposed constitutional amendments. Some additional records relevant to constitutional history may be found in the State Archives as well.

2. ADMISSION TO PRACTICE

   1. GENERAL

      Attorneys admitted to regular practice in South Dakota do not need to seek any further admission to appear in the South Dakota Supreme Court.

   2. ADMISSION PRO HAC VICE

      Non-resident attorneys may be admitted pro hac vice to appear before the South Dakota Supreme Court upon the motion of a resident practicing attorney and member of the South Dakota bar. (8) Non-resident attorneys must be associated with local counsel, who must personally appear with the non-resident attorney at oral argument and sign all pleadings and briefs. (9) In addition, nonresident attorneys in private practice must certify that they have been issued or have completed an application for a South Dakota Sales and Use Tax License. (10) To do so, contact the South Dakota Department of Revenue and Regulation at (605) 773-3311. An attorney admitted pro hac vice to appear in South Dakota circuit court (trial court) must still apply for admission pro hac vice when subsequently seeking to make an appearance in the South Dakota Supreme Court in the same case.

3. REPRESENTATION ON APPEAL

   1. APPEARANCE OF COUNSEL

      There is no appellate statute or rule concerning notices of appearance. Generally, counsel makes an appearance on appeal by being included as counsel in the Appellant's Docketing Statement or by filing a notice of appearance with the South Dakota Supreme Court.

   2. WITHDRAWAL AND SUBSTITUTION OF COUNSEL

      An attorney who has appeared of record in any civil or criminal proceeding is not permitted to withdraw in any pending action except by order of the court after notice to all parties concerned. (11) Motions by appellate counsel to withdraw or be substituted as counsel should be filed directly with the South Dakota Supreme Court.

   3. ETHICAL RULES AND STANDARDS

      The powers and duties of attorneys in South Dakota are generally set forth in SDCL chapter 16-18. The South Dakota Rules of Professional Conduct, appended to SDCL chapter 16-18, were adapted from the ABA's Model Rules of Professional Conduct and govern the conduct of any attorney appearing or practicing in South Dakota. (12) Procedures and rules for the discipline of attorneys in South Dakota are contained in SDCL chapter 16-19 and the appendix to that chapter. The South Dakota appellate bar is small and very collegial. Courtesies are extended between practitioners as a matter of course.

4. THE APPELLATE COURT SYSTEM

   1. JURISDICTION

      The South Dakota Supreme Court is the only appellate court in the state's Unified Judicial System. The Supreme Court's jurisdiction is established pursuant to Article V, sections 1, 2, 3, 4, and 5 of the South Dakota Constitution. Article V, section 5 directs that the Supreme Court "shall have such appellate jurisdiction as may be provided by the Legislature, and the Supreme Court or any justice thereof may issue any original or remedial writ which shall then be heard and determined by that court." (13) Pursuant to statute, all appeals from circuit court decisions are heard by the South Dakota Supreme Court. (14) The circuit courts are the general trial courts of the Unified Judicial System. The circuit courts, organized by counties and judicial circuits, have original jurisdiction of all civil and criminal cases. The circuit courts also have initial jurisdiction over any appeals from...