SIOUX FALLS, S.D. (KELO) – South Dakota’s highest judicial authority will be on display in Brookings this week.
The South Dakota Supreme Court is hearing oral arguments for eight cases at the Oscar Larson Performing Arts Center on the campus of South Dakota State University. KELOLAND News will livestream two cases on Wednesday and three cases on Thursday. You can watch the two cases below.
The entire schedule of cases are listed below (bold cases will be livestreamed):
Wednesday, March 22
- 9 a.m.: Detmers v. Costner
- 9:45 a.m.: State v. Foshay
- 10:30 a.m.: Bracken v. DLR
- 11:15 a.m.: Estate of Beadle
Thursday, March 23
- 9 a.m.: State v. Smith
- 9:45 a.m.: Estate of Simon
- 10:30 a.m.: State v. Banks
- 11:15 a.m.: Implicated Individual
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.
Detmers v. Costner
The first case the court will hear at 9 a.m. Wednesday is a second dispute between Kevin Costner and Peggy Detmers which dates back to the 1990s and involves the Hollywood actor’s involvement in the movie ‘Dances with Wolves.’
Justice Salter recused himself from the Detmers v. Costner case. Circuit court judge Doug Barnett replaced Salter on the Supreme Court for that case.
Costner bought property in Deadwood where he planned to open a casino and resort called The Dunbar named after his character in the movie. He commissioned Detmers to sculpt 17 bronze figures of 14 buffalo and three Lakota hunters on horseback for display at the resort. The cost was an oral agreement of $250,000 plus royalties from sculpture reproductions through the gift shop.
The Dunbar was never built and Detmers claims Costner broke their agreement when he placed the sculptures at Tatanka, a tourist attraction in the same location.
In a 2012 ruling, the Supreme Court affirmed a decision against Detmers’ action requiring Costner to sell the sculptures.
Now, Detmers is alleging Costner is advertising to sell the land where the Tatanka is located which would relocate the sculptures violating a prior opinion on the parties’ agreement “to permanent display of the sculptures at Tatanka.”
The circuit court has ruled in favor of Costner because Detmers’ claim has already been interpreted by the Supreme Court and the court has found Costner “fully performed and owed Detmers no continuing duty because she had no continuing rights regarding the location of the sculptures.”
Detmers wants to know if the circuit court erred in its interpretation of “permanent” and if Costner was free from his agreement to permanently display the sculptures at Tatanka.
Lawyers for Detmers are Andrew Damgaard and Russell Janklow, while lawyers for Costner are Stacy Hegge, Catherine Seeley and Daniel Ashmore.
Damgaard said there’s two contracts between Costner and Detmers – an expressed contract and an implied contract that the trial court found.
Damgaard said Costner saying he was going to move the sculptures is a breach of that implied contract found by the trial court. Damgaard said Costner and Detmers both believed on multiple occasions Tatanka was a permanent location for the sculptures.
“It’s clearly a problem that he created,” Damgaard said about Costner’s decisions.
Damgaard said, ultimately, Detmers wants her copyright back for the sculptures and royalty rights. Damgaard said Detmers spent six to seven years working on the sculptures alone and didn’t take on any other business.
Hegge said the contract only has one provision that the sculptures remain at the location permanently. Hegge said Costner satisfied the provisions in the first contract and he’s free of other obligations.
“Mr. Costner has fully performed and that makes any substantial facts irrelevant,” Hegge said.
Hegge said Detmers could have included other provisions about further placement of the sculptures in previous agreements and legal actions.
Hegge said there’s so many hypotheticals in play but those aren’t the questions in front of the court. She said the question is about the contract being unambiguous and not ambiguous.
Hegge and the court each pointed out Costner put in $6 million into the property surrounding the sculptures, which went above and beyond the terms of the contract for displaying the sculptures permanently.
In rebuttal, Damgaard said the expressed contract doesn’t cover the entire subject and that makes the implied contract important.
“The royalty rights were tied to the display,” Damgaard said.
There’s a statement in a real estate listing agreement that says the sculptures would be moved with a sale, but so far the sculptures haven’t been moved.
Bracken v. DLR
The third case to be heard by justices involves a Custer County Bed and Breakfast business and federal “Pandemic Unemployment Assistance” benefits from the March 2020 Coronavirus Aid, Relief and Economic Security Act.
Darcy Bracken operates White Tail Ridge Bed and Breakfast in Custer County with her husband and the business’s profits are Bracken’s primary source of income. Bracken reported her business stopped in February 2020 and no new guests came until the end of May 2020 because of the pandemic, but the business did stay open.
The South Dakota Department of Labor administered the unemployment assistance and paid Bracken $14,080 in a series of payments.
In July 2021, a review from the DLR found Bracken was not eligible for the benefits and Bracken was required to repay because “she was not considered unemployed.” The administrative law judge affirmed the DLR’s determination of overpayment because Bracken’s business “regularly had guests each month.”
Bracken’s appeal to the Supreme Court focuses on whether the administrative law judge erred in its determination that Bracken was ineligible because the business suffered “indirect economic consequences of the pandemic.”
The lawyer representing Bracken is Eric Schulte, while Seth Lopour and Courtney Chapman are representing the DLR.
Schulte said the standard of review was an error and an error of law. He said “indirect economic consequence” was not cited by the ALJ. Schulte said the CARES Act has criteria for states when benefits should be distributed and he doesn’t believe there’s a conflict.
“The phrase ‘direct result’ is not triggered because the CARES Act doesn’t have the term ‘direct result’ in it,” Schulte said.
Asked about a state court interpreting the will of Congress through a state agency, Schulte said he believes the Supreme Court has the power to do that.
“We can’t consider the consequence of the pandemic in a vacuum,” Schulte said. “There was a criteria for people who are self-employed.”
He said the business was small but it had regular business before the pandemic and it was without business from March 2020 to May 2020.
“There is no dispute there was a loss of business,” Schulte said. “We believe the CARES Act specifically allows for her to apply and it was properly applied.”
Lopour said the DLR correctly applied the CARES Act and there’s a failure of evidence.
Justices asked about the transcript for the ALJ ruling and Lopour said the circuit couldn’t take a further step because it didn’t have the transcript.
“There were no exhibits offered at that hearing,” Lopour said. “The DLR isn’t contesting COVID-19 happened or that people were impacted by it.”
Lopour said the fact Bracken didn’t shut down her business can’t be overlooked. He said the state advertised tourism and there’s a question whether this business was impacted by COVID-19.
“There are assumptions layered in there because there’s no record from any of these guests,” Lopour said. “There is no case law on this issue because the CARES Act was a response.”
In rebuttal, Schulte argued the will of Congress was outlined in the CARES Act. Schulte said Lopour argued guests didn’t testify in front of the ALR and Schulte questioned how that would be possible.
He said there’s evidence in the record describing what happened to Bracken.
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 in 2014 in District 1, Jensen was appointed in 2017 from District 4, Salter was appointed in 2018 in District 2, DeVaney was appointed in 2019 from District 3 and Myren was appointed in 2021 from District 5.
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 issues opinions on cases every Wednesday which are made public on Thursdays.
