SIOUX FALLS, S.D. (KELO) – The South Dakota Supreme Court will hear oral arguments on four cases Thursday at the University of South Dakota Knudson School of Law in Vermillion.
The cases scheduled for Thursday are: Redlin Trust v. First Interstate Bank (9 a.m.), State v. Richard (9:45 a.m.), Ellingson Drainage v. SD Department of Revenue (10:30 a.m.) and State v. Van Der Weide (11:15 a.m.).
The members of the South Dakota’s Supreme Court are Chief Justice Steven Jensen, Janine Kern, Mark Salter, Patricia DeVaney and Scott Myren. Lawyers for each side of the case will appear in front of the court to emphasize points of the case and respond to questions from the court.
Redlin Trust v. First Interstate Bank
The first case to be heard Thursday involves a family trust from Helene Redlin, who was married to South Dakota painter Terry Redlin. Helene died in January 2020 and Helene’s trust had a primary asset of $3 million life insurance. Any trust assets in excess of $3 million were to be distributed to the Terry Redlin and Helene Redlin Dynasty Trust.
Helene’s daughters, Kim and Kelly, were the beneficiaries for Helene’s trust setup in Dec. 2004. Helene’s son, Charles, was added as a trustee in Dec. 2016.
When Helene died in Jan. 2020, the $3 million payout was put into the trust and placed into a money market account at Kovack Securities, a Florida financial firm. Over the next 14 months, the account yielded $843.23 in interest, but a financial expert hired by Kelly showed aggressively investing the $3 million would have resulted in a investment return of 79% or $2.3 million.
In June 2021, Kelly sued her brother Charles and First Interstate Bank for breach of fiduciary duty and sought to remove them as trustees. A circuit court ruled in favor of Charles because it saw no indication that Charles had acted in bad faith regarding the investment of the trust assets. The circuit court ruled in favor of First Interstate Bank because it was in a position inferior to Charles.
Kelly is appealing if First Interstate Bank is a general co-trustee of the trust, if the terms of the trust waived the Prudent Investor Rule and cleared Charles and First Interstate Bank of any duty and whether Charles and First Interstate Bank breached their fiduciary duties.
Attorneys for Kelly are Corey Denevan, Shannon Falon and Meghann Joyce, while Lee Schoenbeck and Joe Erickson are attorneys for Charles and Vince Roche and Ashley Brost are attorneys for First Interstate Bank.
State v. Richard
The second case scheduled Thursday involves Elias Richard, who was convicted for second-degree murder for shooting and killing Vernall Marshall. Richard and Clint Marshall were picked up by Kaleb Lukkes and Masheka Barnett for a drug deal with Vernall. After handing over cash for drugs, Richard and Clint started assaulting Vernall and then Richard shot Vernall twice.
Richard, Lukkes, Barnett and Clint all fled the scene and were all arrested and indicted for roles in Vernall’s death. Lukkes, Barnett and Clint all cooperated with the state and testified against Richard for plea agreements. Lukkes, Richard and Clint were all members of a gang called the Dark Side Family.
Richard is appealing whether the circuit court abused its discretion when it denied his motion for a mistrial and when it allowed evidence of his alleged gang affiliation.
During a jury trial, Lukkes testified he provided Richard with a .25 caliber pistol and two .25 calibur shell casings were found in the street where Vernall was killed. Richard’s defense counsel said police also found six spent .25 calibur shell casings at the apartment Lukkes shared to emphasize Lukkes’ control of the gun.
The state presented evidence that the shell casings at the apartment were for a .22 caliber firearm and not a .25 caliber pistol. The defense asked for a mistrial because of the defense mistake of shell casings at the apartment but was denied.
The attorneys for Richard are Greg Sperlich and Kyle Beauchamp, while South Dakota Attorney General Marty Jackley and assistant attorney general Erin Handke will represent the state.
Ellingson Drainage v. SD Department of Revenue
The third case set for Thursday involves a dispute over the state’s power to impose a use tax upon 30 drain tiles completed in South Dakota between 2016 and 2019.
Minnesota-based Ellingson was assessed a use tax of 4.5% by the Department of Revenue for using construction equipment purchased in other states and a rented piece of equipment brought into South Dakota to complete a drain title job.
DOR allows credit against South Dakota use tax based upon taxes previously paid in other states but the equipment in the appeal had never been subject to state taxation elsewhere and the DOR priced the equipment value at $1.2 million with a use tax amount of $60,665.44 and $14,862.88 in interest.
Ellingson is appealing to state’s highest court and challenging the DOR’s effort to impose the use tax and objected that some of the equipment was used in South Dakota only for one day.
Ellingson believes state law used by the DOR to impose use taxes should be read to apply only to tangible personal property that has come to rest in South Dakota and become part of the common mass of property.
The DOR said the excessive tax for short use of the equipment allows the equipment to be brought back to state for future jobs after the tax is paid.
Attorneys for Ellingson Drainage, Inc. are Shawn Nichols and Andrew Hurd, while Kirsten Jasper and Ali Schaefbauer will be the attorneys for the DOR.
State v. Van Der Weide
The last case to be heard involves a rape case and the use of state law referred to as a rape-shield statue to provides that “evidence offered to prove that a victim engaged in other sexual behavior” is not admissible unless “offered by the defendant to prove consent or if offered by the prosecutor.” The statute also permits the admission of evidence “whose exclusion would violate the defendant’s constitutional rights.”
Keaton Van Der Weide was arrested and indicted on one count of second-degree rape.
Van Der Weide and the victim had a daughter together and were living in the same apartment despite their relationship being “basically over.” Van Der Weide admitted to the sexual encounter but believed it entirely consensual.
Van Der Weide wanted to use evidence of sex toys in trial, but state law denied it. Van Der Weide is appealing if the circuit court improperly excluded the evidence of sex toys and the couple’s sexual history and if the court erred in allowing the state to cross-examine Van Der Weide with select unadmitted text exchanges.
Kristi Jones is the attorney for Van Der Weide while Jackley and assistant attorney general Chelsea Wenzel are representing the state.
What to know about South Dakota’s Supreme Court
The five members of South Dakota’s Supreme Court are appointed by the governor from judicial districts and the picks are subject to statewide electoral approval three years after appointment and every eight years after that.
South Dakota Supreme Court Justices must retire at age 70 and the Supreme Court is final judicial authority on all matters involving the legal and judicial system in South Dakota.
The members of the South Dakota’s Supreme Court are Chief Justice Steven Jensen, Janine Kern, Mark Salter, Patricia DeVaney and Scott Myren.
Kern was appointed by Gov. Dennis Daugaard in 2014, Jensen was appointed by Daugaard in 2017 and Salter was appointed by Daugaard in 2018. Gov. Kristi Noem appointed DeVaney in 2019 and Myren was appointed by Noem in 2021.
The court travels throughout the state to hear oral arguments to give citizens in the state a better opportunity to see and hear how the court functions. The South Dakota Supreme Court allowed both television and still cameras in the Supreme Court in August 2001.
“The South Dakota Supreme Court each fall and spring holds term of court outside of our courtroom at the State Capitol in Pierre,” Chief Justice Jensen said in a news release. “These special sessions give South Dakotans an up-close look at how the judicial system works and how the courts resolve disputes.”
The South Dakota Supreme Court issues opinions on cases every Wednesday which are made public on Thursdays.
