Will It Get A Written Opinion?

In South Dakota, summary dispositions are often used to dispose of appeals.  Under SDCL 15-26A-87.1, the Supreme Court may, and frequently does, enter an order or memorandum opinion summarily affirming or reversing the judgment or order of the trial court in actions where the criteria required by that statute are met.  A case may be summarily affirmed if it is manifest on the face of the briefs and the record that the appeal is without merit because:

• The issues are clearly controlled by settled South Dakota law or federal law

binding upon the states;

• The issues are factual and there clearly is sufficient evidence to support the

jury verdict or findings of fact below; or

• The issues are ones of judicial discretion and there clearly was not an abuse

of discretion.

Similarly, a case may be summarily reversed if it manifest on the face of the briefs and the record that the order or judgment is clearly erroneous for one or more of the following reasons:    

• Summary judgment was erroneously granted because a genuine issue of

material fact exists;

• The judgment or order was clearly contrary to settled South Dakota law or

federal law binding upon the states; or

• The issue on appeal is one of judicial discretion and there clearly was an abuse

of discretion.

Importantly, under SDCL 15-26A-87.1(E), summary dispositions are not to be cited or relied upon as authority in any litigation before a South Dakota court, except as may be necessary to establish the law of the case, res judicata, collateral estoppel, or in a criminal action or proceeding involving the same defendant, or in a disciplinary action or proceeding involving the same person.

For decades, the list of cases decided through summary disposition was listed only quarterly in the Northwestern Reporter.  But, beginning in approximately 2009, the Court began providing a monthly list of its summary dispositions.

In addition to being asked whether a case will get oral argument, I am sometimes asked for my thoughts whether the Court will issue a written decision in a particular case.  In an effort to provide a more cogent answer to that question, I have complied the following statistics on the frequency with which the Court decides cases by summary disposition:

Thus, on average, over the last four years, 38.38% of cases have been decided by summary affirmances, and 61.63% of cases have been decided by a written opinion.  Of course, these averages cannot predict the likelihood that a particular case will be decided through a summary disposition.  However, in looking at trends, it appears that the Court tends to regularly grant summary dispositions in three particular areas:

Thus, it appears that, if you are bringing an appeal on a criminal matter or an abuse and neglect proceedings, it is more likely to be decided through a summary disposition than other types of cases.  On an interesting note, no cases chosen for summary disposition in 2018 were orally argued.  In other words, if you have the opportunity to orally argue your case, then you will likely receive a written opinion.

Perhaps what is most striking about these numbers is that our Court, perhaps understanding the importance to the attorneys and parties of a case, or perhaps understanding the need to further develop its own jurisprudence, does choose to write an opinion in the vast majority of cases – even though South Dakota is a right-to-appeal state.  In sum, these statistics only confirm what many of us already know: that our Court is a diligent one. Questions? Contact our Sioux Falls, Sioux City, or Omaha office today.