Printer Friendly

Appellate practice in the South Dakota Supreme Court.

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.



The official website of the South Dakota Unified Judicial System is 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


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.


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.


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 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 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.



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


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.



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.


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.


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.



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 magistrate court decisions and administrative decisions, which can then be appealed to the Supreme Court. (15) The Supreme Court also has jurisdiction to render certain advisory opinions at the Governor's request and issue original or remedial writs.

In South Dakota, the right to appeal is purely statutory and established by the legislature. (16) Thus, a party seeking to take an appeal must do so in the manner and upon the conditions prescribed by the statute. (17) SDCL section 15-26A-3 sets forth the judgments and orders of circuit courts from which an appeal to the Supreme Court may be taken.


South Dakota has adopted, with substantial modifications, the Uniform Certification of Questions of Law Act. (18) The South Dakota Supreme Court may accept questions concerning issues of South Dakota law certified by the U.S. Supreme Court, any federal court of appeals, or any federal district court. (19) No process has been adopted for the South Dakota Supreme Court to certify questions to other courts.



A notice of appeal and all accompanying papers and fees are filed in the clerk of court's office in the county where the case is venued, which then transmits those documents to the South Dakota Supreme Court. (20) The form for a notice of appeal is included in the Appendix of Forms to SDCL chapter 15-26A. Presently, there is a $50 filing fee payable to the county clerk of court, plus a $100 filing fee payable to the South Dakota Supreme Court (both checks are delivered to the county clerk of court). Unless otherwise provided by statute, an appeal in a civil case must be filed within thirty calendar days after the judgment or order shall be signed, attested, filed and written notice of entry thereof shall be given to the adverse party. (21) With some exceptions, an appeal in a criminal case other than from a judgment must be taken within thirty calendar days after written notice of the filing of the order shall have been given to the party appealing. (22) An appeal from a judgment in a criminal case must be taken within thirty calendar days after the judgment is signed, attested, and filed. (23) Thus, with some exceptions, the deadline for filing a notice of appeal is typically controlled by the date that the opposing party serves notice of the judgment or order from which the appeal is taken upon the party intending to appeal. (24) In such cases, if no notice of entry is served, the deadline to appeal does not begin to run and in theory can extend indefinitely.

However, when a timely motion for a new trial or judgment as a matter of law has been filed in a civil case pursuant to SDCL section 15-6-59, section 15-6-50(b), or both, the time for filing a notice of appeal is terminated as to all parties and the thirty day time to appeal begins to run from the date that notice of the circuit court's order resolving such motions is served or, if the court fails to enter such an order, the date upon which the time for action by the circuit court expires. (25) A similar rule pertains to criminal appeals where a motion for a new trial is filed pursuant to SDCL section 23A-29-1. (26)

When the deadline for filing any civil pleading falls upon a Saturday, Sunday, legal holiday, or day upon which the clerk of courts office is inaccessible, the time is extended by statute until the next day that the clerk of courts office is open. (27) In addition, in all civil cases, where a party has the right or is required to do something after the service of notice and such notice is served by U.S. mail, the time of the prescribed period is extended by three days pursuant to statute. (28) In theory, at least, the time for filing a notice of appeal in a civil case is extended by three days where notice of entry of the judgment or order appealed from was served by U.S. mail. Because it does not appear that the South Dakota Supreme Court has expressly applied this statute to the notice of appeal deadline in a published case, however, appellate counsel should not rely upon its applicability unless necessary. The South Dakota Supreme Court does not have authority to enlarge the time for filing a notice of appeal. (29) An amended notice of appeal is limited to the correction of clerical errors or omissions in the original notice of appeal and does not extend any applicable deadlines. (30)


A docketing statement must be completed in each civil appeal pursuant to the form contained in the Appendix of Forms to SDCL chapter 15-26A. The appellant should attach the judgment and any underlying order from which an appeal has been taken, as well as any related findings of fact, conclusions of law, and memorandum decision. (31)


In most civil cases, an appellant must file a bond or cash deposit in the amount of $500 with the circuit court to serve as security for the payment of costs on appeal. (32) This bond for appellate costs differs from a supersedeas bond that may also be required in order for an underlying judgment to be stayed.


In most civil cases, an appeal from a judgment does not stay enforcement of proceedings in the circuit court unless the appellant executes a supersedeas bond in an amount and form approved by the circuit court or otherwise complies with the applicable rules for obtaining a stay. (33) If the appeal is from a judgment directing the payment of money, the amount of the supersedeas bond must typically be equal to the amount reflected in the judgment. (34)

For other types of judgments, a stay may be issued without posting a monetary bond, depending upon the specific rules governing the situation and the order entered by the circuit court. (35) A cash deposit may be made in lieu of posting a bond. (36) The party for whose benefit a bond is required may agree in writing to waive the requirement. (37) A party not granted requested relief in the trial court concerning a stay pending appeal, for additional security on bond on appeal, or on a supersedeas bond may make a subsequent motion for relief in the Supreme Court. (38)


The Supreme Court Clerk's Office will docket an appeal upon receipt of the notice of appeal and accompanying papers from the county clerk of court. (39)


The South Dakota Rules of Appellate Procedure do not provide for cross-appeals. Instead, an appellee may obtain review of an issue resolved in any judgment or order entered in the same action which may adversely affect the appellee by filing what is called a "notice of review" with the Supreme Court Clerk's Office within twenty days after service of the notice of appeal. (40) The form for a notice of review is included in the Appendix of Forms to SDCL chapter 15-26A. The notice of review must be accompanied by a completed "Section B" of the docketing statement required by SDCL section 15-26A-4(2) and proof of service. The form for this docketing statement is also included in the Appendix of Forms to SDCL chapter 15-26A. Failure to file a notice of review binds the appellee to the resolution of disputed facts and issues as determined by the circuit court's decision below.



The "record" in an appeal consists of the circuit court's original file for the case--its pleadings and papers--as well as any available transcripts, jury instructions, and exhibits. In lieu of the record as defined above, the parties may follow a rarely-used procedure to present an agreed statement of the record for the purpose of appeal. (42)

In the circuit courts where cases are tried, written briefs are sent directly to the trial judge and are not permitted to be filed as part of the record unless the Supreme Court directs counsel to provide them. (43) This can result in disputes regarding whether a particular issue has been properly preserved for appeal. An appellant should be sure to order the transcript from any hearing or other proceeding that may be needed to demonstrate that arguments made on appeal were properly raised below. If exhibits or deposition transcripts were attached to the trial briefs, rather than filed, arrangements should be made to ensure that they become part of the appellate record.


Within five days after an appeal has been filed, the record is paginated and certified by the county clerk of courts, which also prepares and distributes an index listing the contents of the record, called the "clerk's index." (44) No electronic version of the record is prepared by the courts. The record remains in the county clerk's office, where it is available for inspection and copying by the parties, until all of the briefing is completed in an appeal. (45) After the briefing is completed, the record is then physically forwarded to the South Dakota Supreme Court, where it remains until final disposition of the appeal. (46) The Supreme Court, on motion by a party or on its own initiative, may direct the record to be corrected or modified. (47)


Within ten days after filing the notice of appeal, the appellant must order transcripts of the proceedings below or any portion thereof deemed necessary for the appeal. (48) This order is filed with the circuit court and should also be sent to each court reporter involved in the ordered proceedings, information that may be obtained from the county clerk of court's office. The form for ordering the transcript is included in the Appendix of Forms to SDCL chapter 15-26A. If the appellee deems that additional transcripts or portions thereof are necessary, there is a process for either requiring the appellant to order additional transcripts or for the appellee to order them. (49)

Parties must make satisfactory arrangements with the court reporter for payment for the transcripts at the time that they are ordered, which may include pre-payment. (50) Trial and hearing exhibits (including offered exhibits) are deemed part of the record. (51) With the exception of certain physical exhibits (for example, weapons or physical DNA evidence), exhibits are included in the transmittal to the Supreme Court.


South Dakota does not have an official appellate mediation program, although mediation is always encouraged. SDCL section 15-26A-90 authorizes the Supreme Court to direct the attorneys for the parties to appear before the court or a justice thereof for a prehearing conference to consider simplification of the issues and such other matters as may aid in the disposition of the case. In practice, this procedure has been rarely, if ever, employed. If the parties are close to a settlement in a case, a stipulation requesting that the appeal be placed in abeyance or postponed may be submitted to the Court. Such requests should be made through the Clerk's Office.



When briefs are forwarded to the clerk for filing by mail they must be accompanied by an affidavit of mailing or certificate of service and are deemed to be filed as of the date of mailing. (52) South Dakota does not employ any electronic filing system, although it is anticipated that the South Dakota Supreme Court will transition to some form of e-filing in the not-too-distant future.


Two copies of each brief must be served on the attorney for each party to the appeal separately represented and upon any party who is not represented by counsel. The original and fifteen copies of each brief must be filed with the Supreme Court Clerk's Office accompanied by a certificate of service. (53)



Generally, any motion to the Supreme Court must be served upon all adverse parties, and the original and five copies of the motion, together with proof of service, is filed with the Supreme Court Clerk's Office. An adverse party may respond to the motion by filing the original and five copies of the response, together with proof of service, within ten days of service of the motion, or by such other deadline as directed by the Supreme Court. (54)


The parties may allow each other, by stipulation, one extension of time not exceeding fifteen days for serving and filing the appellant's and appellee's initial briefs, provided that such stipulation is made and presented to the Supreme Court Clerk's Office before the time for filing the brief has expired. (55) Such stipulations are routinely entered into between appellate counsel in South Dakota as a matter of professional courtesy. This extension is automatic upon receipt of the stipulation by the clerk. If opposing counsel declines to stipulate to the automatic fifteen-day extension pursuant to this statute, then simply file a motion for the same extension with the Supreme Court Clerk and it will in all likelihood be granted. Note that this stipulation procedure is not available for the appellant's reply brief. Extensions of time for filing reply briefs must be requested by motion. No other extensions for the filing of briefs are allowed except for good cause upon notice and application to the Chief Justice of the Supreme Court. (56) For deadlines not related to briefing, the Supreme Court may upon motion enlarge or extend the time prescribed for anything other than the filing of a notice of appeal. (57)


Motions to extend the length of briefs are generally discouraged, though sometimes granted in an appropriate case. Substantial justification is required. A written request for approval to exceed page or word limitations must be filed at least ten days prior to the filing date of the brief, specifying in detail the reasons why additions are necessary and stating the number of additional pages or words requested. (58)


There is no procedure in the Rules of Appellate Procedure allowing a party to stay a pending appeal. Any such motion should be made pursuant to the statute governing motions generally. (59)


Any motion deemed an "emergency motion" should be made pursuant to the statute governing motions generally. (60) An emergency motion may be filed by facsimile if prior permission to do so has been granted by the Supreme Court Clerk's Office. (61)


Any party may petition for a reheating upon a decision of the Supreme Court if an issue of law or fact appears to have been overlooked or misapprehended by the court. (62) In practice, of course, such petitions are rarely granted. A petition for reheating must be filed within twenty days after the decision has been mailed or delivered by the clerk. (63) A party may serve a reply to such a petition within ten days. (64)


The time for filing briefs is established by SDCL section 15-26A-75. In general, an appellant's initial brief is due forty-five days after service of the notice of appeal or service of the last ordered transcript, whichever is later. (65) Service of the appellee's brief is generally due forty-five days from service of the appellant's brief. (66) Service of the appellant's reply brief is generally due fifteen days from service of the appellee's brief. (67) If there is any uncertainty regarding a deadline, counsel may certainly contact the Supreme Court Clerk's Office to confirm the applicable due date. Extensions of briefing deadlines are governed by SDCL section 15-26A-76.



The general physical requirements for briefs filed with the South Dakota Supreme Court are listed in SDCL sections 15-26A-60 through 69. Briefs may be filed using either monospaced or proportionally spaced typefaces. The latter is more typically used, and Times New Roman is a typically selected font. Appellant and appellee briefs in monospaced typeface may not exceed forty pages. Reply briefs and amicus curiae briefs using monospaced typeface may not exceed twenty pages. Appellant and appellee briefs using proportionally spaced typeface (must be 12-point or larger in both body text and footnotes) are acceptable if they do not exceed thirty-two pages or if they do not exceed the greater of 10,000 words or 50,000 characters. Reply briefs and amicus curiae briefs using proportionally spaced typeface are limited to sixteen pages or the greater of 5,000 words or 25,000 characters. (68)

All briefs must be double-spaced. Indented quotations may be single-spaced. Long quotations are difficult to read and are discouraged. With the exception of headings (which may be centered), the entire text of the brief must be left-hand justified. This includes the content of indented quotations. The brief must be printed on white, 8 and 1/2 by 11 inch paper. The left margin must be one and one-half inches and all other margins must be at least one inch. Each page of the brief, with the exception of the front index, must be consecutively numbered in Arabic numerals centered at the bottom of the page. The cover of the brief must include the information specified in SDCL section 15-26A-69(5). Each brief must be securely bound using three staples covered by binding tape or another approved binding. VeloBind is an alternative approved binding. The Supreme Court Clerk's Office does not accept briefs bound with spiral or comb binding. There is no rule regarding colors for the covers of briefs. Most briefs are submitted with white or light grey covers.

It is the duty of the Supreme Court Clerk's Office to refuse to file a brief that does not substantially comply with these requirements. In practice, that duty is strictly enforced. A party whose brief is refused is granted ten days to file a brief that is in compliance. (69) The most common reasons that a brief is rejected include: (1) failure to ensure that the entire brief (including any content in block quotes) is left justified only; (2) use of an unapproved binding (two approved types of bindings are three left-side staples covered by binding tape and VeloBind; unapproved bindings include spiral and comb binding); (3) failure to cite the three or four most relevant cases under each issue in the statement of issues (do not cite more than four); (4) failure to ensure that the left margin is 1.5 inches and all other margins are not less than one inch; (5) failure to use an acceptable font or type size; and, (6) failure to have the brief signed by counsel that is an active member of the State Bar of South Dakota.


With one major exception, South Dakota's rules of appellate procedure do not provide specific formatting rules for citations in briefs. Consult the Bluebook. The exception is contained in SDCL section 15-26A-69.1 involving the citation to official opinions of the South Dakota Supreme Court. The initial citation of any such opinion issued prior to January 1, 1996, must include a reference to either the volume and page number of the North Western Reporter or the South Dakota Reports in which the opinion is published. Subsequent citations to such cases should follow Bluebook format. For such cases, only the North Western Reporter citation is typically used.

In contrast, the initial citation to official South Dakota Supreme Court opinions issued after January 1, 1996, must include the Supreme Court's own citation designations for that opinion, as well as the North Western Reporter citation. The Supreme Court's citation denotes the year that the decision was issued, the sequential number assigned by the clerk, and the paragraph number containing the cited material. For example, a proper initial pinpoint citation to a South Dakota Supreme Court decision issued after January 1, 1996, looks like this: See Frankenfeld v. Crompton Corp., 2005 SD 55, [paragraph] 23, 697 N.W.2d 378, 386. Subsequent citations to such cases should also include the Supreme Court's citation. For example: See Frankenfeld, 2005 SD 55 at [paragraph] 23, 697 N.W.2d at 386.



The contents and order of the appellant's brief are governed by SDCL section 15-26A-60. A sample format for the brief is also reproduced in the Appendix of Forms to SDCL chapter 15-26A.

1. Table of Contents. Must include page references. (70)

2. Table of Authorities, Must include all cases, statutes, and other cited authorities, along with page references. (71)

3. Jurisdictional Statement. Must set forth the date and form of the judgment or order sought to be reviewed, the date when the notice of appeal was filed, and any other information necessary to demonstrate that the order sought to be reviewed is appealable. (72)

4. Statement of Issues. Must be a concise statement of the legal issue or issues to be resolved, omitting unnecessary detail, and stated neutrally as an appellate court would state the broad issue presented. Each issue must be followed by a concise statement of how the trial court decided it and a list of the most relevant cases (not to exceed four) and relevant constitutional and statutory provisions (if any). (73)

5. Statement of the Case. The statement of the case should appear first, identifying the trial court and the trial judge and indicating briefly the nature of the case and its disposition in the trial court. (74)

6. Statement of Facts. The statement of the facts should include the facts relevant to the grounds urged for reversal, modification or other relief, stated fairly, with complete candor, and as concisely as possible with citations to the record. (75) Claims that a verdict, finding of fact, or other determination is not sustained by the evidence must set forth the particulars in which the evidence is claimed to be insufficient. (76) Generally, the Supreme Court encourages appellate counsel to minimize references to parties by designations such as "appellant" and "appellee" in favor of the designations used in the trial court, actual names, or descriptive terms such as "employer," "owner," etc. (77) References in briefs to children are governed by SDCL section 15-26A-63.1.

7. Argument. Each issue should be separately presented, with needless repetition avoided. The standard of review may be presented in a separate section or incorporated with each respective issue. (78)

8. Conclusion or Prayer for Relief. The precise relief sought must be stated. (79)

9. Signature Block. The Supreme Court Clerk's Office requires briefs to be signed by an attorney representing a party. Electronic signatures or signatures by non-attorneys such as paralegals or legal secretaries are not accepted. In addition, even where a non-resident attorney has been admitted pro hac vice, local counsel admitted to the South Dakota bar must sign all briefs. (80) In appeals brought pursuant to SDCL chapter 26-8A (involving abused or neglected children), both the appellant and counsel must sign the initial brief. (81)

10. Attachments to Brief. The brief should include an appendix containing:

(a) the judgment, orders, or decisions in question and any relevant findings of fact, conclusions of law, and memorandum decisions; (b) the statement of material facts and record citations required in SDCL section 15-6-56(c)(1) and (2) [if it is an appeal from summary judgment]; (c) any relevant portions of the pleadings, instructions, and transcripts; (d) reproductions of relevant statutes, ordinances, rules, regulations, etc. if they are not otherwise reproduced in the brief; (82) and, (e) any other parts of the record to which the parties wish to direct the particular attention of the Court. The appendix should be paginated and include a table of contents with page references. Sections of the appendix should be tabbed and salient information highlighted.

Generally, the appendix is attached to the end of the brief. In practice, the Supreme Court Clerk's Office will allow the filing of a separate appendix including the contents described above as long as the party files a motion seeking to do so. This motion may accompany the mailing of the brief and separate appendix to the Clerk. Any separate appendix may not exceed one volume without prior permission of the Clerk and should be in compliance with all binding and printing specifications applicable to briefs.


The appellee's brief must conform to the requirements of SDCL section 15-26A-60 described above. (83) If the appellee has filed a notice of review on an issue, the appellee's brief may address that issue within the argument section. (84) If the issue is not addressed, it is deemed waived. If the appellee has filed a notice of review, the appellee's brief should also include an appendix containing any relevant judgment, orders, findings of fact, conclusions of law, and memorandum decisions not included in the appendix to the appellant's brief. (85)


An appellant may file a reply brief; it is not a requirement. Any reply brief must be confined to a new matter raised in the appellee's brief and must not exceed the length limitations discussed above. (86)



In South Dakota, an amicus curiae brief can be filed only at the request of the Supreme Court or by leave of court granted upon motion and notice to the parties. (87) A motion for leave to file an amicus brief must identify the interest of the movant and state the reasons why the brief is desirable. (88)


SDCL section 15-26A-74 provides that an amicus curiae must file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support, unless the Supreme Court for cause grants leave for later filing. Thus, a motion to file an amicus brief should be filed as soon as possible so that permission to do so is obtained with sufficient time to prepare and file the brief in accordance with the rule.


An amicus brief should restate the party's interest as set forth in the motion and must comply with the length limitations discussed above. (89) An amicus brief is not allowed to raise additional issues or major arguments not already raised by the parties. An amicus is not allowed to participate in oral argument except by stipulation of counsel for the party with which it is aligned and approval by the Supreme Court.


An appellee should include any substantive response to an amicus brief within its brief; an appellant should do so within its reply brief. If an amicus brief is filed late with permission, the Supreme Court may grant the opposing party an opportunity to respond in a separate brief.



Whenever a party desires to present late authorities, newly enacted legislation, or other intervening matters that were not available in time to have been included in the briefing, it may file fifteen copies of the supplemental brief with the Supreme Court and serve two copies upon opposing counsel. (90) No prior motion is necessary under the present rules unless the case has been submitted. Utilization of this procedure to submit recent decisions by the South Dakota Supreme Court is not necessary, as the Court is fully aware of its own decisions.


A supplemental brief may be filed up to the time that the case is submitted, or by leave of the Supreme Court thereafter. (91) In addition, if counsel refers to a case or statute at oral argument that was not cited in any of the briefs, he or she must have available an original and five copies of the decision or statute to provide to the Clerk immediately after the argument has concluded, as well as copies for opposing counsel.


A supplemental brief is restricted to addressing the new material, must otherwise conform to the requirements for briefs, and must not exceed ten pages. (92)



There is no right to oral argument in the South Dakota Supreme Court. A party seeking oral argument should specifically request it in its initial brief. By agreement of the parties, a case may be submitted for decision on the briefs, but the Supreme Court may nonetheless direct that the case be argued. (93)


In the majority of cases, oral argument is not granted and cases are considered on the non-oral calendar. Many cases where the case law in South Dakota is settled are affirmed pursuant to summary disposition without a written decision. (94) The Supreme Court is also authorized to reverse a case pursuant to its summary disposition authority, although that is a rare occurrence. (95) After the briefing in an appeal is completed, parties receive notice in the mail that a case has been placed on the non-oral calendar or else set for oral argument for the upcoming term of court. If the case is set for oral argument, this notice will indicate the date for which argument has been set. (96) If the case is not set for oral argument, the parties will not hear from the Court again until a written decision or an order summarily affirming or reversing the case is received in the mail.

The placement of a case on the calendar (whether it is argued or not) will typically occur approximately three weeks before the upcoming term of court is scheduled to occur. Notice to counsel will be mailed at that time. Shortly thereafter, the calendar for the upcoming term will be posted on the Supreme Court's website. The average time between the completion of briefing and placement of the case on the calendar (whether it is argued or not) is approximately three months (though there can be substantial variance).


The South Dakota Supreme Court has five sitting Justices. All five Supreme Court Justices typically sit on the panel for each case. Occasionally, one or more Justices have a conflict of interest and recuse themselves. When that occurs, the recused Justice or Justices are replaced on the panel with either a retired Supreme Court Justice or a circuit court judge. Parties are not given advance notice when one of the Justices is recused from a case. As a result, parties will not know the identity of their panel with certainty until the argument begins. Counsel should not make any inquiries with the Clerk's Office regarding the panel composition.


Most arguments are held in the courtroom on the second floor of the State Capitol in Pierre where Supreme Court arguments have been held since the Capitol was constructed in 1910. In recent years, the Supreme Court has held an annual session in March at the University of South Dakota School of Law in Vermillion (one hour south of Sioux Falls) and another session in the early fall at another public venue somewhere else in the state (often a college or high school). Cases of heightened public interest are sometimes held over a little longer than usual so that they can be scheduled for oral argument at one of these "traveling" sessions.

The Supreme Court usually hears arguments in three to nine cases each month that it sits. It typically does not schedule arguments in June or July. In January and February, when the South Dakota Legislature is in session, hotel space in the Pierre area can be very limited. Particularly in those months, appellate counsel and parties wishing to attend should make lodging reservations as soon as possible after oral argument has been set. There are comfortable hotels located both in Pierre and its sister city, Fort Pierre (located just across the Missouri River). All available lodging in both cities is within about ten minutes driving distance from the Capitol.


Prior to the day of oral argument, the Supreme Court Clerk will call counsel for the parties to verify which attorneys will be present for the argument and who will participate. The oral argument notice will usually state that the case has been set for argument at 9:00 a.m. on the scheduled date. This does not necessarily mean that your case will be argued at 9:00 a.m. Usually (though not always) there are three arguments on each day of the term of court, scheduled consecutively for nine, ten, and eleven in the morning. Counsel should check the calendar on the Supreme Court's website for the exact time that their case is scheduled for argument or verify the time with the Clerk's Office. Regardless of when the argument is scheduled, counsel should arrive by 8:30 a.m. and check in with the Clerk's Office upon arrival.

Unless a special session has been scheduled at another location, the argument will take place in the Supreme Court courtroom on the second floor of the State Capitol in Pierre. (In the late fall or early spring, you may have to navigate through some resting flocks of large Canadian geese on your way into the building--don't bother them and they won't bother you!). The courtroom is fairly small with limited seating. The podium is close to the Justices. When at the podium, attorneys are encouraged to speak into the microphone system because the arguments are broadcast live, recorded, and then archived on the Supreme Court's website.

Pursuant to statute, appellant's counsel has twenty minutes for opening argument. Appellee's counsel then has twenty minutes to respond. Appellant's counsel is then allowed ten minutes for rebuttal. (97) Counsel does not need to ask to reserve time for rebuttal and should not do so. It is traditional for counsel to open the argument with an acknowledgement to the Court ("May it Please the Court" or "Mr. [or Madam] Chief Justice, and May it Please the Court") and to opposing counsel. If counsel seeks to use physical exhibits other than documents at the oral argument, prior permission must be secured and arrangements made with the Clerk. (98) Such permission is rarely granted due to problems with opposing counsel and court officials such as law clerks being able to view the exhibits. As an alternative it is recommended that exhibits of such importance be included in the appendix to the brief.

Counsel can assume that the participating Justices have fully studied the briefs prior to oral argument and undertaken a thorough review of the record. Traditionally, the South Dakota Supreme Court has taken an active approach to oral argument, viewing it as an opportunity to thoroughly test arguments and question the attorneys, who are expected to be fully prepared to engage on every issue. Therefore, in order to maximize the efficient use of the allotted time, it is suggested that counsel address the most important issues first, rather than dwell at length upon the facts of the case. In addition, the Court generally prefers that a single attorney present the argument for each party rather than dividing limited time between two attorneys.



The average time between the submission of the case (whether following oral argument or by placement on the non-oral calendar) and the issuance of a decision is about four months, although that estimate is subject to wide variation. The South Dakota Supreme Court is very efficient with its docket and many decisions are issued sooner. The Supreme Court typically issues no more than four decisions per week. Each Wednesday, the Clerk's Office will place any decisions finalized in the previous week in the mail to the respective counsel or parties involved. The week's decisions are then released to the public and published on the Supreme Court's website on Thursday morning. Appellate counsel located in South Dakota will almost always receive decisions in their cases in their Thursday mail.


Unless a case has been resolved by summary disposition pursuant to SDCL section 15-26A-87.1, all written decisions issued by the South Dakota Supreme Court are published in the North Western Reporter and released for publication in legal databases. Abstracts of summary dispositions are published quarterly in the North Western Reporter and available in legal databases and on the Supreme Court website.

C. Remittitur

The South Dakota Supreme Court does not issue mandates. The remittitur of the decision is issued after the time for filing a petition for rehearing (twenty days) has passed. (99)



Any party may petition for a rehearing upon a decision of the Supreme Court if an issue of law or fact appears to have been overlooked or misapprehended by the court. (100) Such petitions are rarely granted.

In addition, if three of the five Justices cannot agree on the disposition of the case, it must be reheard. (101) If three Justices cannot agree upon a second hearing, the case must be affirmed, or, if it is an original action or proceeding, dismissed without prejudice. (102)


A petition for rehearing must be filed within twenty days after the decision has been mailed or delivered by the clerk. (103) The petition must "state briefly and without argument the issue, fact or law claimed to have been overlooked or misapprehended by the court." (104) A party may serve a reply to such a petition within ten days. (105) If a petition for rehearing is granted, the Supreme Court will reset the case for briefing and, potentially, another oral argument.



Costs allowed to the prevailing party on appeal are set forth in SDCL section 15-30-6. An application for costs must be filed with the Supreme Court Clerk's Office prior to entry of the decision. Such applications are typically submitted with a party's final brief. The process for notice, objections, and payment of costs is set forth in SDCL sections 15-30-6 through 12. The only recoverable expenses are the costs set forth in SDCL section 15-30-6.


Appellate attorney fees are allowable in South Dakota only where there is an independent statutory or contractual basis to award them. (106) A motion for appellate attorney fees must be accompanied by a verified, itemized statement of legal services rendered, exclusive of costs. (107) An original and fifteen copies of the motion and itemized statement must be filed with the Supreme Court Clerk prior to submission of the action on the merits and served upon opposing counsel. (108)


Objections or responses to a motion for appellate attorney fees must be served and filed within the ten-day time frame governing answers to motions generally. (109)


The South Dakota Supreme Court is the only appellate court in the state. The only available avenue for further appellate review is the United States Supreme Court in those cases falling within its jurisdiction.



With some very limited exceptions, only final judgments and orders may be appealed as of right in South Dakota. (110) A party may file a petition with the Supreme Court asking for permission to appeal from an intermediate order. (111) An original and five copies of the petition must be filed with the Supreme Court and served within ten days following the notice of entry of the order sought to be appealed. (112) The required contents and attachments to such petitions are set forth in SDCL sections 15-26A-14 and 15. Responses to such petitions may be filed and served within seven days. (113) Permissive appeals are infrequently granted.

In addition, a trial court may issue a Rule 54(b) certification directing the entry of judgment for the purpose of allowing an appeal before all of the claims have been resolved. (114) The South Dakota Supreme Court has cautioned that this process should be reserved only for unique circumstances and not employed as an accomodation to counsel. (115)


The exercise of the original jurisdiction granted the Supreme Court by Article V, section 5 of the South Dakota Constitution is reserved for the consideration of matters of prerogative, extraordinary, and general concern. (116) In 1890, just one year after the South Dakota Constitution was ratified, the Supreme Court construed the perimeters of its original jurisdiction:
   It is quite apparent that the primary and principal object of the
   creation of the supreme court was to make it an appellate court,
   with authority to exercise a superintending control over the
   inferior courts; and it was the intention of the framers of the
   constitution, in conferring original jurisdiction upon that court,
   that this original jurisdiction should be exercised only in cases
   where ordinary jurisdictions and ordinary remedies were not
   adequate to give the relief sought.

   ... It is not easy, if indeed it would be advisable, to define
   definitely all the cases or classes of cases in which this court
   will exert its original powers. These must rest, as the
   constitution has left them, in the sound discretion of this court,
   to be exercised or denied as the circumstances of the given case
   may demand. It may, however, be proper to say that this original
   jurisdiction will not ordinarily be exerted to enforce a merely
   private or local right where no sufficient cause is shown why
   application cannot be made to a subordinate court. For the
   protection and enforcement of such rights, the inferior courts are
   clothed with adequate powers, and to them the citizen must
   ordinarily look for such protection. It is only for some cause
   peculiar to his particular case that a private party will be
   authorized to invoke the exercise of the original jurisdiction of
   this court; and, generally, this exercise of the original powers of
   this court must be invoked by the attorney general, in the name of
   the state. (117)

Applications to commence such proceedings, such as those for writs of certiorari, mandamus, prohibition, quo warranto, and habeas corpus, are governed by SDCL section 15-25-2.


From the South Dakota Supreme Court: "[C]ompliance with our rules of appellate procedure remains the primary method of prevailing over jurisdictional and procedural challenges, and as a rule, should be complied with explicitly." (118)

(1.) SDCL 15-24-8.

(2.) SDCL 23A-32-14.

(3.) SDCL 15-24-1.

(4.) SDCL 15-26A-2.1.

(5.) See, e.g., Cummings v. Mickelson, 495 N.W.2d 493, 499 n.7 (S.D. 1993).


(7.) Available for purchase from the State Bar of South Dakota (phone: (605) 224-7554). Additional sources shedding light on South Dakota's constitutional history include the South Dakota Historical Collections published annually by the state historical society; GEORGE W. KINGSBURY, HISTORY OF DAKOTA TERRITORY (S. J. Clarke 1915); DOANE ROBINSON, HISTORY OF SOUTH DAKOTA (B.F. Bowen & Co., 1904); Howard R. LAMAR, DAKOTA TERRITORY 1861-1889: A STUDY IN FRONTIER POLITICS (Yale 1956); JON LAUCK, PRAIRIE REPUBLIC: THE POLITICAL CULTURE OF DAKOTA TERRITORY, 1879-1889 (Univ. of Okla. 2010); Jon Lauck, The Organic Law of a Great Commonwealth: The Framing of the South Dakota Constitution, 53 S.D.L. REV. 203 (2008); and, JOHN D. HICKS, THE CONSTITUTIONS OF THE NORTHWEST STATES (Neb. 1923). See also Gilbert v. Flandreau Santee Sioux Tribe, 2006 SD 109, [paragraph][paragraph] 16-17, 725 N.W.2d 249, 256-57; State v. Schwartz, 2004 SD 123, [paragraph][paragraph] 41-57, 689 N.W.2d 430, 440-45 (Konenkamp, J., concurring in result).

(8.) SDCL 16-18-2.

(9.) Id. See also Matter of Discipline of Schmidt, 491 N.W.2d 754, 755-56 (S.D. 1992); 1980 S.D. Op. Att'y. Gen. 234.

(10.) SDCL 16-18-2.

(11.) SDCL 16-18-31.

(12.) See S.D. Sup. Ct. R. 03-26.

(13.) S.D. CONST. art. V, [section] 5.

(14.) SDCL 15-26A-3.

(15.) SDCL [section][section] 1-26-30, 30.1, 30.2, and 1-26-37.

(16.) See Elliott v. Bd. of County Comm'rs of Lake County, 2005 SD 92, [paragraph] 15, 703 N.W.2d 361, 367-68 (quoting Appeal of Lawrence County, 499 N.W.2d 626, 628 (S.D. 1993)).

(17.) Brown v. Brown, 81 N.W. 627, 628 (S.D. 1900).

(18.) SDCL oh. 15-24A; S.D. Sup. Ct. R. 85-7.

(19.) SDCL 15-24A-1.

(20.) SDCL 15-26A-4(4)-(5).

(21.) SDCL 15-26A-6; S.D. Sup. Ct. R. 10-01.

(22.) SDCL 23A-32-15.

(23.) Id.

(24.) See Matter of Sales and Use Tax Refund Request of Media One, Inc., 1997 SD17, 5 59 N.W.2d 875.

(25.) SDCL 15-26A-6; S.D. Sup. Ct. R. 10-01. The Supreme Court's analysis in Johnson v. Lebert Construction, Inc., 2007 SD 74, 736 N.W.2d 878, has been largely superseded by a subsequent amendment to SDCL 15-26A-6.

(26.) SDCL 23A-32-15.

(27.) SDCL 15-6-6(a).

(28.) SDCL 15-6-6(e).

(29.) SDCL 15-26A-92.

(30.) SDCL 15-26A-4.1.

(31.) SDCL 15-26A-4(2).

(32.) SDCL 15-26A-23.

(33.) SDCL 15-26A-25.

(34.) SDCL 15-26A-26.

(35.) See SDCL [section][section] 15-26A-23-46.

(36.) SDCL 15-26A-41.

(37.) SDCL 15-26A-42.

(38.) SDCL [section][section] 15-26A-39,-57.

(39.) SDCL 15-26A-4(5).

(40.) SDCL 15-26A-22.

(41.) SDCL [section][section] 15-26A-47, -53; S.D. Sup. Ct. R. 10-02.

(42.) SDCL 15-26A-55.

(43.) SDCL 15-26A-47.

(44.) SDCL 15-26A-53.

(45.) SDCL 15-26A-57.

(46.) SDCL 15-26A-59.

(47.) SDCL 15-26A-56.

(48.) SDCL 15-26A-48.

(49.) SDCL 15-26A-50.

(50.) SDCL 15-26A-51.

(51.) SDCL [section][section] 15-26A-47,-53.

(52.) SDCL 15-26A-81.

(53.) SDCL 15-26A-79.

(54.) SDCL 15-26A-87.2.

(55.) SDCL 15-26A-76.

(56.) SDCL 15-26A-76.

(57.) SDCL 15-26A-92.

(58.) SDCL 15-26A-66(c).

(59.) SDCL 15-26A-87.2.

(60.) Id.

(61.) SDCL 15-16A-2.1.

(62.) SDCL 15-25-3.

(63.) Id.

(64.) SDCL 15-25-4.

(65.) SDCL 15-26A-75(1).

(66.) SDCL 15-26A-75(2).

(67.) SDCL 15-26A-75(3).

(68.) See generally SDCL 15-26A-66.

(69.) SDCL 15-26A-70.

(70.) SDCL 15-26A-60(1).

(71.) SDCL 15-26A-60(2).

(72.) SDCL 15-26A-60(3).

(73.) SDCL 15-26A-60(4).

(74.) SDCL 15-26A-60(5).

(75.) See Hofmeister v. Sparks, 2003 SD 35, [paragraph] 6, 660 N.W.2d 637, 639 n.3 (stating "[w]e take this opportunity to advise appellate practitioners that all material facts must contain a reference to the record. Moreover, absent an issue on appeal which makes a party's assertion in a pleading relevant, the statement of facts required in appellate briefing should not recite as evidentiary facts, mere assertions from that party's pleadings").

(76.) SDCL 15-26A-60(5).

(77.) SDCL 15-26A-63.

(78.) SDCL 15-26A-60(6).

(79.) SDCL 15-26A-60(7).

(80.) SDCL 16-18-2.

(81.) SDCL 15-26A-60(9).

(82.) See SDCL 15-26A-65.

(83.) SDCL 15-26A-61.

(84.) See SDCL 15-26A-22.

(85.) SDCL 15-26A-61.

(86.) SDCL 15-26A-62.

(87.) SDCL 15-26A-74.

(88.) Id.

(89.) SDCL 15-26A-66.

(90.) SDCL 15-26A-73.

(91.) Id.

(92.) Id.

(93.) SDCL 15-26A-87.

(94.) SDCL 15-26A-87.1(A) and (B).

(95.) SDCL 15-26A-87.1(C) and (D).

(96.) SDCL 15-26A-82.

(97.) SDCL [section][section] 15-26A-83-84.

(98.) SDCL 15-26A-88.

(99.) SDCL [section][section] 15-30-11-16.

(100.) SDCL 15-25-3.

(101.) SDCL 15-24-4.

(102.) Id.

(103.) SDCL 15-25-3.

(104.) Id. (emphasis supplied).

(105.) SDCL 15-25-4.

(106.) SDCL 15-26A-87.3.

(107.) Id.

(108.) Id.

(109.) SDCL 15-26A-87.2.

(110.) SDCL 15-26A-3.

(111.) SDCL[section][section] 15-26A-3(6),-13.

(112.) SDCL15-26A-13.

(113.) SDCL 15-26A-16; see also [section][section] 15-26A-17-21.

(114.) SDCL 15-6-54(b).

(115.) Weisser v. Jackson Township of Charles Mix County, 2009 SD 43, [paragraph] 4, 767 N.W.2d 888, 889.

(116.) SDCL15-25-1.

(117.) Everitt v. Bd. County Comm'rs Hughes County, 47 N.W. 296, 297-98 (S.D. 1890).

(118.) Christenson v. Bergeson, 2004 SD 113, [paragraph] 19, 688 N.W.2d 421, 427.

RONALD A. PARSONS, JR. ([dagger]) *

([dagger]) Partner, JOHNSON, HEIDEPRIEM & ABDALLAH LLP, Sioux Fails, SD; Law Clerk, Honorable Roger L. Wollman, Circuit Judge, United States Court of Appeals for the Eighth Circuit, 1997-98; J.D., University of South Dakota School of Law, 1997; B.A., University of Minnesota, 1994. The author has been recognized for his appellate practice in Chambers USA "s America's Leading Lawyers for Business, Best Lawyers in America and Super Lawyers, Corporate Counsel Edition. He is also the author of the South Dakota chapter of APPEALS ACROSS AMERICA: AN INSIDER'S GUIDE TO STATE AND FEDERAL APPELLATE COURTS (Dana Livingston ed., 2011), published by the Council of Appellate Lawyers of the Judicial Division of the American Bar Association.

* This article does not follow The Bluebook citation style like traditional law review articles. Because the article is meant to serve as a practitioner's guide to South Dakota appellate practice, the citation follows the style used by the South Dakota Supreme Court. While the styles are often the same, occasional differences exist and are intentionally used here.
COPYRIGHT 2011 South Dakota Law Review
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2011 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Parsons, Ronald A., Jr.
Publication:South Dakota Law Review
Date:Mar 22, 2011
Previous Article:Dedication.
Next Article:E-discovery practice, theory, and precedent: finding the right pond, lure, and lines without going on a fishing expedition.

Terms of use | Privacy policy | Copyright © 2019 Farlex, Inc. | Feedback | For webmasters