#27298-rev & rem-DG
2015 S.D. 83
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
VERA GOOD LANCE, Plaintiff and Appellant,
v.
BLACK HILLS DIALYSIS, LLC,
and LEETTA BREWER, Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
SHANNON COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBERT A. MANDEL
Judge
****
JON J. LAFLEUR
CHARLES ABOUREZK of
Abourezk & Zephier, PC
Rapid City, South Dakota Attorneys for plaintiff and
appellant.
GREGORY J. BERNARD
CATHERINE L. Z. CHICOINE of
Thomas Braun Bernard & Burke, LLP
Rapid City, South Dakota Attorneys for defendants and
appellees.
****
ARGUED OCTOBER 6, 2015
OPINION FILED 11/04/15
#27298
GILBERTSON, Chief Justice
[¶1.] Vera Good Lance sued Black Hills Dialysis, LLC and LeEtta Brewer
(collectively, BHD) for negligence after suffering an injury from a fall while at
BHD’s facility in Shannon County on the Pine Ridge Indian Reservation. 1 A
dispute arose between the parties about whether the circuit court should summon
jurors from Shannon County or neighboring Fall River County. A 2009 standing
order issued by the Seventh Circuit Presiding Judge required that all cases filed in
Shannon County be venued in Fall River County. In accordance with this order, the
circuit court ruled that it would summon Fall River County jurors. Good Lance,
through her estate’s administrator Hilda Kills Small, requested this intermediate
appeal. We reverse and remand for further proceedings.
Background
[¶2.] Good Lance was a resident of Shannon County, South Dakota.
Shannon County is located completely within the boundaries of the Pine Ridge
Indian Reservation. Good Lance was a regular patient at BHD’s facility in Shannon
County. During one of her regular dialysis treatments, Good Lance fell and suffered
injuries that generated substantial medical expenses and required a nursing home
stay. At the time of her fall, Good Lance was being assisted by BHD’s employee,
LeEtta Brewer. Good Lance commenced this action against BHD in Shannon
County. Shortly after BHD deposed Good Lance, Good Lance died. Hilda Kills
1. We take judicial notice that in May of 2015 the name of Shannon County was
changed to Oglala Lakota County. However, we refer to it as Shannon
County because that was its name throughout the proceedings in the circuit
court.
-1-
#27298
Small, the special administrator for Good Lance’s estate, continued this action on
behalf of the estate.
[¶3.] Good Lance sued BHD in Shannon County for her injuries. However,
Shannon County has no physical state court facilities. It contracts with neighboring
Fall River County for its governmental services. Thus, all Shannon County legal
proceedings are held at the Fall River County Courthouse in Hot Springs, South
Dakota. Accordingly, all hearings in this matter took place at the Fall River County
Courthouse.
[¶4.] At a pre-trial hearing, the parties disputed whether the circuit court
should summon jurors from Shannon County or Fall River County. The circuit
court advised the parties that it intended to empanel Fall River County jurors, due
to a standing order issued in 2009 by the Presiding Judge of the Seventh Circuit
(hereafter, the standing order). The standing order stated that all Shannon County
matters would be tried in Fall River County. 2 The standing order was issued in
2. The relevant language of the order states:
The Court, presiding Judge Jeff W. Davis, having reviewed
applicable laws and procedures and being fully advised of the
premise, now, based on factors allowing judicious administration
of court services and resources does HEREBY ORDER: That the
venue of all state judicial matters filed in Shannon County shall
be tried in Fall River County in accordance with the laws and
policies set out in South Dakota statutory authority, the
Shannon/Fall River County Contract for governmental services
and Oglala Sioux Tribe Proclamation and Executive Order
declaring state court service and filings unenforceable on the
Pine Ridge Indian Reservation. This Order allows consideration
of the fact that a state court judge lacks jurisdiction in tribal
court to summon and seat the jury panel and lacks the inherent
authority to invoke statutory procedures necessary to ensure a
fair trial. The Order further allows consideration of factors
(continued . . . )
-2-
#27298
response to an executive order issued by the President of the Oglala Sioux Tribe.
The executive order stated that any service of process issued by a state court could
not be enforced within the boundaries of the Pine Ridge Indian Reservation. Good
Lance made a motion to summon Shannon County jurors and the parties briefed the
issue.
[¶5.] At a subsequent hearing on the motion, BHD argued that a state court
does not have jurisdiction over Indians within the boundaries of the reservation;
therefore, the court would not have any method of compelling jurors to attend the
trial. Thus, BHD argued that the court had no alternative but to use Fall River
County jurors. Conversely, Good Lance argued that the issue was one of venue, and
that venue was proper in Shannon County because the events giving rise to the
claim occurred in Shannon County. Good Lance also argued that juror attendance
could be successfully compelled under the United States Supreme Court’s holding in
Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001). Lastly,
Good Lance argued that the standing order was unconstitutional under both the
South Dakota Constitution and the United States Constitution.
[¶6.] The circuit court ruled that it would summon Fall River County jurors.
The circuit court reasoned that under our interpretation of Hicks, the language in
Hicks that indicates a state court could compel juror attendance was mere dicta,
therefore not controlling. See State v. Cummings, 2004 S.D. 56, ¶ 16, 679 N.W.2d
_______________________
(. . . continued)
affecting efficient administration of judicial resources such as
time, cost and court services necessary to conduct a jury trial.
-3-
#27298
484, 489. 3 The circuit court further held that the standing order supported its
resolution of the issue. The circuit court concluded that neither state nor federal
case law would support it asserting the jurisdiction required to compel jurors from
Shannon County. Good Lance appeals.
[¶7.] The following issues are discussed in this appeal:
1. Whether Good Lance has standing to contest the validity of the
standing order.
2. Whether the standing order violated South Dakota statutes or
case law regarding venue.
3. Whether the standing order violated the right to a fair and
impartial jury under the South Dakota and United States
Constitutions.
4. Whether the circuit court would be able to compel juror
attendance of Shannon County residents.
Standard of Review
[¶8.] Good Lance argues that the standing order and the circuit court’s
interpretation of applicable case law replacing the Shannon County jury panel with
a panel summoned from Fall River County violated her constitutional right to a fair
and impartial jury. Good Lance also argues that the standing order was an
unconstitutional judicial encroachment on the Legislature. We review alleged
violations of constitutional rights de novo. Stehly v. Davison Cty., 2011 S.D. 49, ¶ 7,
802 N.W.2d 897, 899 (citing W. Two Rivers Ranch v. Pennington Cty., 2002 S.D.
107, ¶ 8, 650 N.W.2d 825, 827).
3. Hicks does not affect our analysis in the disposition of this case. Thus, we do
not address the parties’ arguments about its applicability.
-4-
#27298
[¶9.] Good Lance also argues that the standing order violates South Dakota
statutes governing venue and jury empaneling. The de novo standard of review also
applies to issues of statutory construction. See Apland v. Bd. of Equalization for
Butte Cty., S.D., 2013 S.D. 33, ¶ 7, 830 N.W.2d 93, 97. (applying de novo standard
of review to both questions of constitutional rights deprivations and issues of
statutory interpretation). Under the de novo standard of review, no deference is
given to the circuit court’s conclusions of law. Stehly, 2011 S.D. 49, ¶ 7, 802 N.W.2d
at 899.
Decision
[¶10.] 1. Whether Good Lance has standing to contest the validity of the
standing order.
[¶11.] BHD alleges that Good Lance does not have standing to contest the
standing order because she did not employ the proper legal procedures for vacating
the order. BHD argues that instead of seeking an intermediate appeal of the circuit
court’s order that Fall River County jurors would be summoned, Good Lance should
have sought a writ of certiorari seeking to vacate the standing order. BHD also
argues that Good Lance should have named then Presiding Judge Davis as a party
to the lawsuit to have standing to contest his standing order. We disagree.
[¶12.] There are five requirements to establish standing. The party must
allege:
(1) a personal injury in fact, (2) a violation of his or her own, not
a third-party’s rights, (3) that the injury falls within the zone of
interests protected by the constitutional guarantee involved, (4)
that the injury is traceable to the challenged act, and (5) that
the courts can grant redress for the injury.
-5-
#27298
Sioux Falls Argus Leader v. Miller, 2000 S.D. 63, ¶ 6, 610 N.W.2d 76, 80 (quoting
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,
454 U.S. 464, 472-74, 102 S. Ct. 752, 758-59, 70 L. Ed. 2d 700 (1982)). A judge’s
action need not directly harm litigants for them to have suffered an injury
recognized for standing analysis. See id. ¶ 8, 610 N.W.2d at 81 (holding that a
judge’s gag order on court members was a cognizable injury to the press for
standing purposes even though the order was not directed at the press).
Additionally, even if a party has not sustained an injury, the party may still have
standing if an injury is imminent and concrete. See Cramp v. Bd. of Pub.
Instruction of Orange Cty., Fla., 368 U.S. 278, 282-83, 82 S. Ct. 275, 278, 7 L. Ed. 2d
285 (1961); Doremus v. Bd. of Ed. of Borough of Hawthorne, 342 U.S. 429, 434-35,
72 S. Ct. 394, 397, 96 L. Ed. 475 (1952).
[¶13.] Good Lance clearly satisfied all five requirements for standing. The
injury, not having a fair and impartial jury of her peers, is clear and imminent, as
the circuit court’s decision denied her from having a jury comprised of a cross
section of her community. See SDCL 16-13-10.1 (stating that it is the policy of
South Dakota that all litigants are entitled to have juries selected from a fair cross
section of the community). The injury is personal to her, not a third party, and it is
not a generalized grievance of the population. Her injury is also clearly within the
zone of interests protected by the right to a fair and impartial jury guaranteed by
the South Dakota Constitution. See S.D. Const. art. VI, § 6. The injury is clearly
the result of the standing order, as the standing order was crucial to the circuit
court’s decision to use Fall River County jurors. We are also able to redress the
-6-
#27298
alleged injury by reversing the circuit court’s decision and remanding with
instructions to disregard the standing order. Thus, Good Lance satisfies all five
elements of standing.
[¶14.] BHD argues that Good Lance should have sought a writ of certiorari
under SDCL 21-31-1 (authorizing writ) and SDCL 21-31-2 (delineating application
procedure) if she wanted to vacate the standing order. However, a writ of certiorari
is an equitable remedy, and an equitable remedy is only available when there is no
remedy at law that could address the problem. Ridley v. Lawrence Cty. Comm’n,
2000 S.D. 143, ¶ 6, 619 N.W.2d 254, 257. We have already granted Good Lance’s
petition for intermediate appeal under SDCL 15-26A-13, so Good Lance has an
adequate remedy at law. Additionally, SDCL Chapter 21-31 does not make a writ of
certiorari an exclusive remedy. Therefore, even if Good Lance could have sought a
writ of certiorari, that option did not preclude her from pursuing an intermediate
appeal. We hold that Good Lance has standing to pursue this appeal. 4
[¶15.] 2. Whether the standing order violates South Dakota statutes or
case law regarding venue.
[¶16.] We now consider the propriety of the standing order in the context of
South Dakota statutes and case law regarding venue. We first analyze whether the
standing order violated South Dakota law regarding venue. We then address the
4. Many of our cases discussing certiorari and its exclusivity requirement
predate the Court Rule prescribing the method for taking intermediate
appeals. However, since an intermediate appeal is a matter of this Court’s
judicial discretion, application for it is not a prerequisite to obtaining a writ
of certiorari in an appropriate case.
-7-
#27298
circuit court’s holding that effectively placed the burden on the plaintiff to justify
venue.
a. Whether the standing order is consistent with South Dakota
law regarding venue.
[¶17.] In South Dakota, statutes govern venue. “Actions for conversion of
personal property, or for the recovery of damages to persons or property, may at the
option of the plaintiff be brought and tried in the county where the damages were
inflicted or the cause of action arose.” SDCL 15-5-8. Our statutes also mandate
that an action will be tried in the county where the plaintiff files suit, even if the
county is improper, if the defendant does not timely request a change of venue.
SDCL 15-5-10. We have held that “[v]enue in the courts of this state is entirely
statutory. In the absence of statutory grounds for a change, the initial choice of a
plaintiff is conclusive.” Putnam Ranches, Inc. v. O’Neill Prod. Credit Ass’n, 271
N.W.2d 856, 859 (S.D. 1978).
[¶18.] In light of these holdings and statutes, the presiding judge had no
authority to effectively change venue in this manner. The standing order clearly
went beyond the confines of the presiding judge’s statutory authority. Whatever the
reasons for the order, his authority does not include the power to effectively change
the venue of all properly venued Shannon County cases.
[¶19.] BHD argues that the standing order was allowed under SDCL 16-13-
37. This statute requires presiding circuit court judges to prescribe the “manner” in
-8-
#27298
which jury panels are to be summoned and utilized for trials in each county. 5
However, determining the manner in which jury panels are used and how they are
to be summoned does not mean the presiding judge can choose from which counties
to empanel jurors, broadly excluding all the residents of an entire South Dakota
county from the opportunity to serve on a jury. See SDCL 16-13-10.1 (“It is further
the policy of the State of South Dakota that all citizens of the state, qualified for
jury duty, shall have the opportunity to be considered for service on grand and petit
juries[.]”). The possibility of juror noncompliance does not justify changing the
county from which the jurors are empaneled. See Nebraska Elec. Generation &
Transmission Co-op., Inc. v. Markus, 90 S.D. 238, 244, 241 N.W.2d 142, 146 n.2
(1976) (noting that it would be improper to use residents from an organized county
as jurors in a matter properly brought in an unorganized county). The language of
SDCL 16-13-37 is not so broad as to give presiding circuit court judges the authority
to alter the venue procedures that our Legislature properly put into place.
[¶20.] Even if we were to conclude that a presiding judge had this authority,
the standing order would still be invalid under other provisions of SDCL chapter 16-
13. A presiding circuit court judge has authority to prescribe the manner in which
jury panels are utilized, and circuit courts are free to make local rules to suit their
5. Respondents do not cite it, but SDCL 16-2-21 sets forth the general duties
and authority for a circuit’s presiding judge. The language of this statute
allows presiding judges to make “arrangements with proper authorities for
the drawing of jury panels and determining which sessions shall be jury
sessions[.]” As with SDCL 16-13-37, the language of this statute does not
extend so far as to allow a presiding judge to exclude an entire county’s
population from jury panels.
-9-
#27298
needs. See Stormo v. Strong, 469 N.W.2d 816, 823 (S.D. 1991) (holding that circuits
can make local rules and that such rules should be followed). However, it is the
responsibility of this Court to enforce SDCL chapter 16-13’s provisions regarding
juries. SDCL 16-13-18.2. If a circuit court wishes to change its procedures
regarding jury selection, it must submit its proposed change for this Court’s
approval. SDCL 16-13-18.3. 6 A circuit court also must have this Court’s approval
to change any of its local procedural rules. See SDCL 15-6-83 (requiring this
Court’s approval for any change to any circuit court’s local rules). No indication of
such approval occurs anywhere in the record of this case or the records of this
Court. Thus, even if we were to hold that such a drastic change to venue rules were
permitted under SDCL 16-13-37, the standing order would still be invalid because
the change was entered in violation of SDCL 16-13-18.3 and SDCL 15-16-83.
[¶21.] As the standing order infringed on venue statutes, it also infringed on
the Legislature’s role of creating venue law, a violation of the South Dakota
Constitution. S.D. Const. art. II (“The powers of the government of the state are
divided into three distinct departments, the legislative, executive and judicial; and
the powers and duties of each are prescribed by this Constitution.”). “The doctrine
6. The statute reads as follows:
The presiding judge of each circuit shall administer and enforce
the jury selection provisions of this chapter. Such judge may
vary the terms of the random selection process to meet local
conditions in any county or jury district in the circuit if such
changes are consistent with the terms of this chapter. Such
changes shall be reduced to writing, approved by the Supreme
Court pursuant to § 16-13-18.2 and filed with the clerk of the
court in any county affected by the changes with the other
materials required to be preserved by § 16-13-31.1.
-10-
#27298
of separation of powers has been a fundamental bedrock to the successful operation
of our state government since South Dakota became a state in 1889.” Gray v.
Gienapp, 2007 S.D. 12, ¶19, 727 N.W.2d 808, 812. We have held that courts in
South Dakota must avoid judicial legislation, which is a usurpation of the
legislature’s power. AEG Processing Ctr. No. 58, Inc. v. S.D. Dep’t of Revenue &
Regulation, 2013 S.D. 75, ¶ 19, 838 N.W.2d 843, 849 (quoting Petition of Famous
Brands, Inc., 347 N.W.2d 882, 884 (S.D. 1984)).
[¶22.] Other courts have recognized the role of their respective legislatures in
determining venue law. The United States Supreme Court has held that its power
to regulate procedure in the federal courts does not trump valid venue statutes
passed by Congress. United States v. Nat’l City Lines, 334 U.S. 573, 588-89, 68 S.
Ct. 1169, 1177-78, 92 L. Ed. 1584 (1948). States have followed suit, holding that
altering venue is within the exclusive realm of the legislature. See State ex rel.
Riffle v. Ranson, 464 S.E.2d 763, 768 (W. Va. 1995) (“To be clear, the West Virginia
Legislature is the paramount authority for deciding and resolving policy issues
pertaining to venue matters”); State ex rel. Wade v. Cass Circuit Court, 447 N.E.2d
1082, 1083 (Ind. 1983) (“[T]he right to a change of venue from the county or judge is
a substantive right which can be conferred only by the legislature.”).
[¶23.] It is clear in this case that the standing order was not within the
presiding judge’s statutory authority. A court’s power to control procedure does not
extend so far as to prevent a plaintiff from having a jury from her home county
decide her case. Only the South Dakota Legislature could change our venue
-11-
#27298
statutes. The standing order was an unconstitutional judicial encroachment on the
powers of the South Dakota Legislature.
b. Whether the circuit court effectively forced Good Lance, rather
than BHD, to justify venue in desired county.
[¶24.] A plaintiff’s choice of where to file suit is conclusive absent a venue
transfer request by the defendant. Putnam Ranches, Inc., 271 N.W.2d at 859; see
also SDCL 15-5-10 (stating that a trial may be held in an improper county if
defendant fails to request a change). While it is correct that either party may move
for a change in venue, the burden is on the party that wants a change in venue to
show why venue is improper. See Olson v. City of Sioux Falls, 63 S.D. 563, 262
N.W. 85, 87-88 (illustrating that either party may move for a change in venue);
Estes v. Lonbaken, 2011 S.D. 52, ¶ 14, 803 N.W.2d 609, 612 (“Accordingly, the party
raising the issue has the burden of proving improper venue.”)
[¶25.] In this case, Good Lance filed suit in Shannon County. We
acknowledge that all the proceedings in this case have been held at the Fall River
County Courthouse, but that is due to the contract between the counties. The
counties remain separate legal entities. Shannon County’s decision to contract out
its obligation to provide a physical location to hold court proceedings did not take
away Good Lance’s right to choose appropriate venue in her home county, where the
events giving rise to the litigation took place. See SDCL 15-5-8 (“Actions . . . for the
recovery of damages to persons or property, may at the option of the plaintiff be
brought and tried in the county where the damages were inflicted[.]”) (Emphasis
added.) Despite these statutes, the circuit court erroneously placed the burden on
Good Lance to justify using Shannon County jurors; the court required Good Lance
-12-
#27298
to make the motion and provide factual and legal support. If BHD had a problem
with the Shannon County jury pool, it was BHD’s burden to make and support a
motion for a change in venue to Fall River County. See Markus, 90 S.D. at 245, 241
N.W.2d at 146 (“we are not persuaded that the appellant has met its burden of proof
that prejudice resulted”); State v. Aesoph, 2002 S.D. 71, ¶ 45, 647 N.W.2d 743, 758
(holding that criminal defendant did not meet his burden of proof that jury selection
process violated his due process rights). Without a motion from BHD to change
venue, Good Lance’s choice of venue was presumptively conclusive, and it was not
her burden to justify her statutory right to her choice of venue.
[¶26.] BHD argues that it will be unable to receive a fair and impartial trial
if the court empanels Shannon County jurors. BHD argues that because a high
percentage of Shannon County residents are members of the Oglala Sioux Tribe and
residents of the Pine Ridge Reservation, the circuit court has no jurisdiction to
compel attendance of those persons summoned for jury duty. BHD believes that
because of the court’s inability to compel attendance, the only people that will show
up for jury selection are those that will have an interest in the matter. BHD argues
that such a cross-section of the community would deny it a fair trial. The
correctness of this contention is a premature issue as BHD has not attempted to
factually establish juror bias. To proceed on such a contention, BHD must provide
factual support for the proposition that a fair cross-section of Shannon County
residents will not attend jury selection. 7 We have previously indicated that voir
7. Good Lance cites several cases that were tried prior to the issuance of the
standing order that took place at the Fall River County Courthouse but
(continued . . . )
-13-
#27298
dire is the proper procedure for determining the bias of prospective jurors. See
generally City of Sioux Falls v. Johnson, 1999 S.D. 16, ¶ 37, 588 N.W.2d 904, 912
(holding that voir dire was the proper mechanism determining public hostility).
BHD cannot now argue for what amounts to a change in venue with only
speculations of possible negative consequences.
[¶27.] BHD relies on State v. Blem, 2000 S.D. 69, 610 N.W.2d 803. In Blem,
we held that structural errors in jury selection procedures deny a party his right to
a fair and impartial jury. Id. ¶¶ 29-30, 610 N.W.2d at 810. However, Blem is
distinguishable. In Blem, the defendant appealed after trial because the court had
removed two potential jurors before examination by the parties was possible. Id. ¶
19, 610 N.W.2d at 807-08. In this case, no defect that could lead to structural error
has occurred, as trial has not yet taken place. BHD cannot claim a structural defect
has deprived it of its right to a fair and impartial jury before the jury panels are
selected, the jurors are summoned, and jurors are questioned during voir dire. To
claim this type of structural error, BHD must develop a record indicating juror bias
during voir dire.
[¶28.] Even if we were to hold that Blem were applicable in this case, it would
not support BHD’s argument. We held that there was a structural defect in Blem
because jurors were improperly eliminated from consideration prior to voir dire. Id.
_______________________
(. . . continued)
empaneled Shannon County jurors. State v. Jensen, 2007 S.D. 76, 737
N.W.2d 285; State v. Finney, 337 N.W.2d 167, 168 (S.D. 1983); Estate of He
Crow by He Crow v. Jensen, 494 N.W.2d 186, 187 (S.D. 1992). These cases
cast even more doubt on BHD’s concerns about a fair and impartial trial, as
they demonstrate that jury trials have been successful empaneling Shannon
County jurors.
-14-
#27298
¶ 30, 610 N.W.2d at 810 (“Here, there was a substantial failure to comply with jury
selection statutes because no examination of the prospective jurors was conducted
prior to their removal.”). If we were to hold for BHD in this case and affirm the
circuit court, we would be enabling the same structural defect to occur—premature
elimination of potential jurors. However, instead of prematurely eliminating just
two potential jurors from consideration, as was the case in Blem, it would be the
entire population of Shannon County. The circuit court’s ruling, effectively
prohibiting the entire population of a South Dakota county from participating in
their civic right to be a juror, is a structural defect we cannot allow.
[¶29.] Based on the above analysis, the circuit court’s ruling on venue is
improper and without legal basis. Additionally, the circuit court erred in placing
the burden on Good Lance to justify venue in Shannon County. Shannon County is
where the injury occurred, the cause of action arose, and where Good Lance filed
her suit. Good Lance is entitled to have Shannon County jurors hear her case until
BHD can prove it is entitled to a statutory change.
[¶30.] 3. Whether the standing order violated the right to a fair and
impartial jury under the South Dakota and United States
Constitutions.
[¶31.] Both parties argue that their constitutional rights were violated or
would be violated if we were to hold against them. However, our holding today
disposes of this case without requiring any further constitutional analysis. Thus,
we decline to address the parties’ constitutional arguments. See In re Estate of
Flaws, 2012 S.D. 3, ¶ 22, 811 N.W.2d 749, 755 (holding that addressing
-15-
#27298
constitutional issues is unnecessary when the case is disposed of on other grounds
(citing Sheehan v. United Pac. Ins. Co., 439 N.W.2d 117, 119 (S.D. 1989))).
[¶32.] 4. Whether the circuit court would be able to compel juror
attendance of Shannon County residents.
[¶33.] The parties have extensively briefed the question of the circuit court’s
ability to compel the attendance of members of the Oglala Sioux Tribe who reside on
the Pine Ridge Reservation. However, BHD has presented only generalized
assumptions as evidence as to why this will be an issue. Concerns BHD has about
an unfair jury cannot be addressed until a jury is actually empaneled and voir dire
has taken place. The panel cannot be exhausted, invoking SDCL 16-13-43, prior to
it even being summoned. As such, we decline to address the parties’ arguments
about the ability of the circuit court to compel juror attendance.
Conclusion
[¶34.] We hold that the presiding judge exceeded his statutory and
constitutional authority in issuing the standing order effectively changing venue in
all Shannon County cases. The circuit court also erred in its analysis reaching the
same conclusion of exclusion of a Shannon County jury panel. For these reasons,
we vacate the presiding judge’s standing order and reverse the order of the circuit
court. In this case, venue is proper in Shannon County, and Shannon County jurors
should be summoned and empaneled.
[¶35.] ZINTER, SEVERSON, WILBUR, Justices, and KONENKAMP,
Retired Justice, concur.
[¶36.] KONENKAMP, Retired Justice, sitting for KERN, Justice,
disqualified.
-16-