Chief Justice Gilbertson provides an inside look at South Dakota’s Supreme Court

Capitol News Bureau

PIERRE, S.D. (KELO) — Chief Justice David Gilbertson answered questions from KELOLAND Capitol News Bureau reporter Bob Mercer in Pierre about how the South Dakota Supreme Court decides to hear cases and the related topic of the roles that law clerks play in the court’s processes.

The Supreme Court has five justices. Chief Justice Gilbertson has served on the Supreme Court since April 1995 and has been elected as chief justice to four-year terms in 2001, 2005, 2009, 2013 and 2017. He previously was a circuit judge first appointed in 1986.

Q. Why does the South Dakota Supreme Court have to consider every appeal? How many cases have been presented for appeal in each of the past five fiscal years?

A. The South Dakota Constitution guarantees every litigant who loses a case in the Circuit Courts the right to appeal to the South Dakota Supreme Court. We are known as an “appeal of right state” and there are only about five states that provide this benefit to its citizens. That still requires an appellant to comply with the various legal requirements to invoke the Supreme Court’s appellate jurisdiction. 

In most states you have to get the state’s Supreme Court’s permission to accept your appeal. Most states also have intermediate courts of appeals. South Dakota does not and the appeal goes directly from the Circuit (trial) Court to the South Dakota Supreme Court.

In FY 2015 we had 354 filings; in FY 2016, 436 filings; in FY 2017. 389 filings; in FY 2018, 346 filings; and in FY 2019, 398 filings. As a general rule approximately half of the appeals are from criminal convictions and the other half are civil disputes.

Q. How does the Supreme Court decide which cases to decide based on the writings and which cases to hear oral arguments? When is that decision made?

A. There are no hard and fast rules on this. Initially a review is made by two veteran Supreme Court staff attorneys. They then meet with the chief justice and the three come up with tentative list of cases for oral argument. 

An individual justice has the opportunity to request a case be moved from oral to non-oral or the other way around. Cases that are often considered for oral argument are cases where the complexity of the cases leaves the Justices after reading the briefs with questions they would like addressed through oral argument.

Legal subjects that have not been addressed by the South Dakota Supreme Court in previous cases are also more likely to get oral argument.  Death penalty cases are automatically set for oral argument.

The (Supreme) Court is aware that oral arguments are expensive to the client who is paying the bill   If the case involves an insurance policy or a contract, there is no need for a lawyer to drive to Pierre and read us the insurance policy or the contract, we can do that just as easily for ourselves.

The decision is usually made about eight to six weeks before the oral arguments are held to give the attorneys advance notice if their case has been granted oral argument.

Q. How often does the Supreme Court hear cases? How is the schedule set? How much time is allowed for an oral argument?

A. The Supreme Court holds monthly terms in September, October, November, January, February, March, April and May. Emergency appeals can be scheduled as needed.

During the summer we strive to issue opinions of cases considered from the previous months and prepare for the coming fall terms.

In an oral argument the party appealing is given 20 minutes to argue to the Court why there was a significant error made in the trial and thus why the decision should be reversed. During this 20 minute period the justices have the opportunity to ask the attorney questions about the case.

Next, the party that prevailed in the trial is given the same 20 minutes to argue to the court why no error was made or that it was harmless and thus the decision of the trial court or jury should be upheld. The appellant is given a 10 minute rebuttal.

Thus, the entire oral argument lasts for 50 minutes. All South Dakota Supreme Court oral arguments are carried live on the internet on the Court’s web site and are also available for all oral arguments back to September of 2001.

Q. Do the five justices meet on a case before they hear the oral argument? What happens after the oral argument?

A. The justices generally do not meet on a case until the ‘term of court.’ By then one of the justices has been assigned the case and he or she will share a pre-argument memo with the other justices. During the term of court all cases for that term, whether oral or non-oral, are discussed among the justices at a formal Court Conference.

At that conference a tentative vote is taken. The justice who is assigned the case then prepares a draft opinion for consideration of the other justices, if the justices decide that case is appropriate for a written opinion. Some of the less complex cases can be affirmed by written order if all five justices agree to that disposition.

If there is to be a written opinion, the justice who drew the case searches applicable laws and legal opinions and the record of the trial to draft that opinion.  When completed that draft opinion is submitted to all the justices for their consideration.

Q. When does the Supreme Court decide that a specific justice should write the majority opinion? How is the opinion circulated? Are other justices’ views reflected in the final version that is publicly released?

A. Cases are not assigned. They are drawn out of a 10 gallon cowboy hat donated by the late Justice Frank Henderson. Thus which Justice gets to write which case depends on the luck of the draw. It also equalizes the number of cases with each justice, as the draw continues one justice after another until all cases are drawn.

From the initial Court Conference, justices have the opportunity for input with the justice who was designated (in the drawing) to become the author.  The draw occurs about six weeks before the upcoming Term of Court.

Q. Sometimes there are special concurrences. How does that occur?

A. If a justice agrees with the result of the case but not the rationale on how it should be decided, the justice may attach a special writing known as a special concurrence. In it the justice joins the majority vote but explains how he or she thought that result should have been achieved.

Q. Sometimes cases are issued with dissents. When does a justice decide to dissent? How is the dissent circulated so that another justice can join it? Or issue a second dissent?

A. For a proposed opinion to become the opinion of the South Dakota Supreme Court, it must command a majority vote of the justices. Since there are five justices, that means it must have three or more justices vote to join it. If a justice disagrees with the result, that justice may attach a writing to the opinion known as a dissent. In it the justice will explain why he or she thinks the result and rationale of the majority opinion is not correct.

Q. How much time does the Supreme Court have to issue a decision?

A. The ultimate goal of the South Dakota Supreme Court is to get a correct decision, not a quick one. Thus, there are no hard and fast rules on when an opinion has to be issued, although there are internal guidelines.

It also greatly depends on the type of case. In a single issue case, with a very short trial record concurred in by all the justices, it will probably go out very quickly after conference. That could be as little as a month.

However a case with numerous issues and a voluminous trial record or a split vote among the justices with separate writings will lengthen the process.

Q. Sometimes justices recuse themselves. Or, in the recent instance of Justice Steven Zinter’s death in 2018, there is an unexpected vacancy. How are retired justices or current circuit justices selected to sit on a case?

A. South Dakota is a small state. Justices are not hermits and know a lot of people. If a relative or close friend is involved in a case, that justice will not sit on that individual case.

Also, the justice may have a spouse or an adult child who is an attorney.  If they are involved in that case, the justice cannot sit on the appeal. If there is a recusal of a justice, the chief justice chooses a replacement who is either a retired justice, a current sitting circuit judge or a retired circuit judge.

With the unexpected death of Justice Zinter last October, the Supreme Court was faced with a different situation.

It was clear that a replacement could not be seated for a minimum of six months to allow for the entire replacement process to play out. With a monthly caseload of 25 cases, it was not realistically possible to have a parade of replacement judges and justices for each individual case.

The chief justice was able to obtain a return of retired Justices John Konenkamp, Judith Meierhenry, Lori Wilbur and Glen Severson. Each retired justice participated on all cases for a given month, in the same manner as Justice Zinter would have done had he still been living. The volunteer efforts by the retired justices allowed for a continued smooth operation during the months between Justice Zinter’s death and the seating of Justice Patty DeVaney, who ultimately replaced Justice Zinter.

Q. Does the Supreme Court ever re-hear a case?

A. If a party loses an appeal it can petition for a rehearing of the case if that party thinks the Supreme Court erred in its decision. To get a rehearing granted, three or more Justices must vote to grant a rehearing.

Such rehearings are extremely rare.  I have been on the South Dakota Supreme Court for 24 years. During my tenure I can only remember three rehearings being granted.

Q. Does the Supreme Court ever decide it needs to take oral arguments after previously deciding that a matter could be decided on the written arguments?

A. Yes it does. During our term held in late August we had a non-oral case which, after our Court Conference, we decided it would be helpful to carry the case over, so we could have the benefit of oral argument from the attorneys. The case is now set for our November term. This probably happens once or twice a year.

Q. South Dakota voters reformed the South Dakota court system through a constitutional amendment. What traits were set aside?

A. In 1972 a constitutional amendment was proposed for the voters’ consideration. Prior to that time the judicial system in South Dakota was very disorganized. You also had judges — justices of the peace — who had no legal training.

The 1972 amendment created a unified court system under the supervision and control of the South Dakota Supreme Court. It also created the office of chief justice who acts basically as the chairman of the board in a corporation would act.

The chief justice has appointive authority over numerous positions and boards. The chief justice is elected by the members of the Supreme Court.  The 1972 amendment was approved and the court system became the Unified Judicial System which exists today.

Q. If the current Supreme Court justices could ask voters for additional change, what would be the priority?

A. Those who drafted the 1972 proposed amendment to the Judicial Article of the South Dakota Constitution had impressive foresight. Since the commencement of the Unified Judicial System in 1975 the system has run well.

At this point I see no need for any major constitutional changes. Changes in individual programs are accomplished as needed by approval of the South Dakota Legislature and the governor.

Q. The Supreme Court uses an intern system. How long does one serve?

A. The official name for what you describe as an intern is “law clerk.” They are individuals who have graduated from a law school and passed the bar exam. They assist the individual Justice in reviewing the trial record and researching applicable law. They also can perform additional duties as requested by the law clerk’s justice.

Each of the five justices has an individual law clerk. A sixth law clerk position also exists for additional assistance. Usually the law clerk stays for a year and then goes on to a permanent legal position elsewhere. However, some Law Clerks extend their stay with the permission of the justice. One law clerk has been in that position long enough that she has been given the title of “Permanent Law Clerk.”

Q. How do they apply? How are they chosen? Does a specific person assist a specific justice? How much work does each perform? Have any returned as state circuit judges or state Supreme Court justices?

A. A law school student may apply to become a law clerk with the South Dakota Supreme Court upon graduation. These positions are highly sought after and competitive.

The applicant is required to fill out a lengthy application, provide an example of their writing skills and (provide) their grades while in law school. The finalists are interviewed by the justices.

The only persons who held both the position of Supreme Court law clerk and later returned as a Justice are retired Justice Lori Wilbur and current Justice Steven Jensen.

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