#24511-DG
2008 SD 9
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
JOHN UNRUH II; NATHANIEL UNRUH
and AMY MILLER, individually and as
Personal Representatives of the Estate of
JOHN HAROLD UNRUH, deceased; and
MOLLIE EICHMAN, individually,
Plaintiffs,
v.
DAVISON COUNTY, SOUTH DAKOTA; HUTCHINSON
COUNTY, SOUTH DAKOTA; DAVID MILES, individually
and in his capacity as the Davison County Sheriff; DON RADEL,
individually and in his capacity as Administrator of the Davison
County Jail; CONNIE IRELAND, individually and in her capacity
as a Davison County employee; GLEN ELLERTON, individually
and in his capacity as a Davison County employee; JEFF MINER,
individually and in his capacity as a Davison County employee;
JERRY MCNARY, individually and in his capacity as a Davison
County employee; CINDY VOYLES, individually and in her
capacity as a Davison County employee; ROGER ERICKSON,
individually and in his capacity as a Davison County employee;
GINGER FAAS, individually and in her capacity as a Davison
County employee; LINDA ALDRICH, individually and in her
capacity as a Davison County employee; TOM KULM, individually
and in his capacity as a Davison County employee; CAROL RADEL,
individually and in her capacity as a Davison County employee;
and OTHER UNKNOWN PERSONS, individually and in their
capacity as employees of Hutchinson and Davison Counties,
South Dakota, Defendants.
* * * *
CERTIFIED QUESTION FROM THE UNITED
STATES DISTRICT COURT, DISTRICT OF SOUTH
DAKOTA, SOUTHERN DIVISION
* * * *
HONORABLE LAWRENCE L. PIERSOL
UNITED STATES DISTRICT JUDGE
* * * *
ORIGINAL PROCEEDING
ARGUED NOVEMBER 7, 2007
OPINION FILED 01/30/08
SHEILA S. WOODWARD
MICHAEL F. MARLOW of
Johnson, Miner, Marlow
Woodward & Huff, LLP
Yankton South Dakota Attorneys for plaintiffs.
GARY P. THIMSEN
JAMES A. POWER
CHERI S. RAYMOND of
Woods, Fuller, Shultz & Smith, PC
Sioux Falls South Dakota Attorneys for defendants
Davison County & Davison
County Defendants.
DOUGLAS M. DEIBERT of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls South Dakota Attorneys for defendants
Hutchinson County &
Deb Gering.
#24511
GILBERTSON, Chief Justice
[¶1.] Plaintiffs, John Unruh II, Nathaniel Unruh, Amy Miller, individually
and as personal representatives and on behalf of the Estate of John H. Unruh,
deceased, (Unruh) and Mollie Eichman, individually, brought an action against
Davison County and Hutchinson County and several of their employees known and
unknown 1 (collectively “Defendants”) for negligent conduct and conduct deliberately
indifferent to Unruh’s civil rights, resulting in his death. Plaintiffs filed their suit
in the United States District Court, District of South Dakota, Southern Division,
Sioux Falls, South Dakota. Defendants asserted immunity from liability under
SDCL 3-21-8 and 3-21-9. The District Court certified one question to the South
Dakota Supreme Court. For the reasons set forth herein, we answer the certified
question in the negative.
FACTS AND PROCEDURE
[¶2.] On the night of June 27, 2004, Unruh was arrested by the Freeman,
South Dakota City Police and charged with third offense driving under the
influence. Following a blood test conducted at the Freeman Hospital, 2 Unruh was
transferred to the custody of the Hutchinson County Sheriff’s Department.
Hutchinson County contracted with Davison County for jail services. A Hutchinson
1. Hutchinson County and “Other Unknown Persons” individually and in their
capacity as employees of Hutchinson County have been dismissed from the
law suit. The sole remaining Hutchinson County defendant is Sheriff’s
Deputy Deb Gering. Gering is alleged to have failed to follow through on a
request for medications for Unruh after receiving a telephone request from
Davison County Jail staff.
2. Unruh’s blood alcohol content was .356.
-1-
#24511
County Sheriff’s deputy transported Unruh to the Davison County Jail in Mitchell,
South Dakota. Unruh was booked into custody by Davison County on June 28, 2007
at about 12:30 a.m.
[¶3.] Unruh, who had a history of excessive alcohol consumption and
medical problems that included a heart attack and aneurism, had been prescribed a
number of prescription medicines. Though the transporting deputy stopped at
Unruh’s house at his request, Unruh elected not to bring his medications,
anticipating that he would make bail the next day. While in Davison County’s
custody, Unruh’s physical condition deteriorated. By the evening of June 29, he had
become delirious. That night, Unruh was transported to the Avera Queen of Peace
Hospital in Mitchell at around 11:30 p.m. He was later evacuated by air to the
Heart Hospital in Sioux Falls, South Dakota where he died.
[¶4.] Plaintiffs alleged that Defendants’ negligence and failure to follow
procedures resulted in Unruh’s death and violated his civil rights. Defendants
asserted that they were immune from claims of liability in connection with Unruh’s
death as provided under SDCL 3-21-8 and 3-21-9. Plaintiffs argued that
Defendants, who had liability coverage in effect at the time in question,3 had
waived their immunity to the extent of that coverage as provided under SDCL 21-
32A-1.
The District Court certified one question to this Court, which we
accepted:
3. Davison County had liability coverage through its participation in the South
Dakota Public Assurance Alliance, a government risk sharing pool.
Hutchinson County carried liability insurance through a private insurer,
EMC Insurance Company.
-2-
#24511
Does a county’s purchase of liability insurance or
participation in a risk sharing pool, pursuant to SDCL
21-32A-1, waive the county’s and its employees’ immunity
granted by SDCL 3-21-8 and 3-21-9 to the extent of
such insurance or participation in a risk sharing pool?
STANDARD OF REVIEW
[¶5.] Technically, this Court does not sit as an appellate court in this case as
the matter came to us as a certified question from the United States District Court
for the District of South Dakota. Nevertheless, we employ the same legal standards
for this analysis that we use when reviewing appellate cases.
The construction of a statute is a question of law. We
interpret statutes in accord with legislative intent. Such
intent is derived from the plain, ordinary and popular
meaning of statutory language. “[I]ntent must be determined
from the statute as a whole, as well as enactments relating
to the same subject.” “[W]here statutes appear to conflict,
it is our responsibility to give reasonable construction to
both, and if possible, to give effect to all provisions under
consideration, construing them together to make them
‘harmonious and workable.’”
Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶4, 543 NW2d 787, 789 (internal
citations omitted).
ANALYSIS AND ANSWER
[¶6.] Does a county’s purchase of liability insurance or
participation in a risk sharing pool, pursuant to SDCL
21-32A-1, waive the county’s and its employees’
immunity granted by SDCL 3-21-8 and 3-21-9 to
the extent of such insurance or participation in a risk
sharing pool?
[¶7.] The States’ sovereign immunity derives from English law and was
ratified in Article III, Section 2 of the United States Constitution. Alden v. Maine,
527 US 706, 713, 119 SCt 2240, 2246-47, 144 LEd2d 636 (1999). The Eleventh
-3-
#24511
Amendment extends the States’ immunity from suits to those commenced by
citizens of another State or citizens or subjects of a foreign country. Id. at 713, 119
SCt at 2246, 144 LEd2d 636 (citing US Const amend 11).
[¶8.] Sovereign immunity is established on a state level by Article III,
Section 27 of the South Dakota Constitution: “The Legislature shall direct by law
in what manner and in what courts suits may be brought against the state.” Still,
this Court recognizes that sovereign immunity arises in part from the common law.
Sioux Falls Constr. Co. v. City of Sioux Falls, 297 NW2d 454, 457 (SD 1980) (citing
High-Grade Oil Co., Inc. v. Sommer, 295 NW2d 736, 738 (SD 1980)). Sovereign
immunity is limited in that it only exists in the absence of consent to be sued.
Cromwell v. Rapid City Police Dept., 2001 SD 100, ¶13, 632 NW2d 20, 24 (quoting
Alden, 527 US at 754, 119 SCt at 2267, 144 LEd2d 636; citing In re Request for
Opinion of the Supreme Court Relative to Constitutionality of SDCL 21-32-17, 379
NW2d 822, 825 (SD 1985)).
[¶9.] In 1981, the Legislature authorized the State of South Dakota to
obtain liability insurance for the purpose of insuring the State, its officers, agents
and employees. SDCL 21-32-15. During the same legislative session SDCL 21-32-
16 was enacted, therein providing that to the extent of liability insurance coverage,
the State is “deemed to have waived the common law doctrine of sovereign
-4-
#24511
immunity and consented to suit in the same manner that any other party may be
sued.” 4 SDCL 21-32-16 (emphasis added).
[¶10.] In 1986, the Legislature extended sovereign immunity and the waiver
provisions of SDCL chapter 21-32 to all public entities, including counties, 5 with the
enactment of SDCL chapter 21-32A. 6 SDCL 21-32A-1 provides:
To the extent that any public entity, other than the state,
participates in a risk sharing pool or purchases liability
insurance and to the extent that coverage is afforded
thereunder, the public entity shall be deemed to have waived
the common law doctrine of sovereign immunity and shall
be deemed to have consented to suit in the same manner
4. In 1983, the Legislature expressly extended SDCL 21-32-16 to employees,
officers and agents of the state by enacting SDCL 21-32-17. The statute
provides as follows:
Except as provided in § 21-32-16, any employee, officer, or agent of the state,
while acting within the scope of his employment or agency, whether such acts
are ministerial or discretionary, is immune from suit or liability for damages
brought against him in either his individual or official capacity.
SDCL 21-32-17 (emphasis added).
5. In Brown v. Egan School Dist. No. 50-2, this Court opined that the definition
of “public entities” under SDCL 3-21-1, applies to “public entities” as the term
is used in SDCL chapter 21-32A. 449 NW2d 259, 262 (SD 1989). SDCL 3-21-
1 provides in pertinent part:
“Public entities,” the State of South Dakota, all of its branches and
agencies, boards and commissions. The term also includes all public
entities established by law exercising any part of the sovereign power
of the state, including, but not limited to municipalities, counties,
school districts, townships, sewer and irrigation districts, and all other
legal entities that public entities are authorized by law to establish.
(Emphasis added).
6. In 1987, the Legislature enacted a measure which added language to
SDCL chapter 21-32A extending the waiver provisions of that chapter to
include Participation in risk sharing pools.
-5-
#24511
that any other party may be sued. The waiver contained
in this section and §§ 21-32A-2 and 21-32A-3 is subject
to the provisions of § 3-22-17.
(Emphasis added). SDCL 21-32A-2 essentially applies the provisions of SDCL 21-
32-17, see supra note 4, to employees, officers or agents of any public entity. SDCL
21-32A-3 provides:
Except insofar as a public entity participates in a risk
sharing pool or insurance is purchased pursuant to §
21-32A-1, any public entity is immune from liability for
damages whether the function in which it is involved is
governmental or proprietary. The immunity recognized
herein may be raised by way of affirmative defense.
[¶11.] During the same legislative session in which SDCL chapter 21-32A
was enacted, the Legislature also enacted SDCL 3-21-8 and 3-21-9, related to the
operation and maintenance of jails and correctional facilities, and administration of
prisoner parole and release. 7 SDCL 3-21-8 provides:
No person, political subdivision, or the state is liable for
failure to provide a prison, jail, or penal or correctional
facility, or if such facility is provided, for failure to provide
sufficient equipment, personnel, programs, facilities, or
services in a prison or other correctional facility.
SDCL 3-21-9 provides in pertinent part:
No person, political subdivision, or the state is liable for
any injury resulting from the parole or release of a prisoner
or from the terms and conditions of his parole or release
or from the revocation of his parole or release, or for any
injury caused by or resulting from:
...
(5) Services or programs administered by or on behalf of the
prison, jail, or correctional facility.
7. The 1986 Legislature thought this protection significant enough to pass it
with an emergency clause, thus making it effective immediately upon
approval by the Governor.
-6-
#24511
[¶12.] In Brown v. Egan School District No. 50-2, 449 NW2d 259 (SD 1989),
this Court discussed the proposition that there are multiple and independent basis
for sovereign immunity. The claim in Brown arose from the defendant school
district’s operation of a school bus. Id. at 260. While driving to work, during a
morning when blizzard-like conditions existed, the plaintiff unexpectedly
encountered one of the district’s buses parked in the middle of the road. Unable to
stop, the plaintiff was severely injured when she collided with the rear end of the
bus. At the time of the collision, the bus was being used for the routine
transportation of students to school.
[¶13.] The district carried liability insurance. The plaintiff filed a tort action
against the district to the extent of its insurance coverage based on waiver under
SDCL 21-32A-1. However, the district asserted SDCL 13-29-1 8 as an affirmative
defense claiming the statute created an independent statutory basis for sovereign
immunity which was separate from the previously recognized constitutional and
common law basis and which was not waived by the purchase of liability insurance
coverage.
8. At the time, SDCL 13-29-1 provided in part:
The school board of any school district may acquire, own, operate, or hire
buses for the transportation of students to and from its schools either from
within or without the district or for transportation to and from athletic,
musical, speech, and other interscholastic contests in which participation is
authorized by the school board. If the use of a school bus is granted by the
school board pursuant to subdivision (1) or (8) of § 49-28-2, the school district
is not liable for suit or damages which may arise as the result of the use.
(Emphasis added).
-7-
#24511
[¶14.] The Court found that the immunity asserted by the district under
SDCL 13-29-1, as then enacted, did not apply to the facts of that case. Id. at 261-
62. The Court went on to dismiss the proposition of a separate “statutory sovereign
immunity.” Id. at 262. In dismissing the proposition, however, the Court did so
with specific reference to SDCL 13-29-1 and the waiver statute SDCL 21-32A-1.
[¶15.] SDCL 13-29-1, as it was then enacted, authorized school districts to
own and operate buses for the purpose of transporting students to and from school
and extracurricular activities. See supra note 8. The statute also provided that if
districts granted usage of school buses for certain non- regulated purposes, defined
under then enacted SDCL 49-28-2(1) or (8), 9 the districts would not be liable for any
9. At the time, SDCL 49-28-2 provided in part that the following vehicles were
exempt from Public Utilities Commission regulation:
(1) Motor vehicles used solely in transportation as authorized by § 13-29-1
to and from consolidated or other schools, on trips approved by the
school board for the purpose of attending interscholastic activities or
other educational programs, or when rented by or their use has been
granted to a nonprofit club, group, organization, fraternal society,
association or corporation under § 13-24-20 for the transportation of
persons under the age of twenty-one years. However, when rented or
the use is granted, the movement of the motor vehicle is restricted to a
radius of one hundred miles in any direction from the point at which
the motor vehicle is most frequently dispatched, garaged, serviced,
maintained, operated or otherwise controlled, the driver of such motor
vehicle must be fully qualified to drive the motor vehicle as required by
the laws of this state, and the motor vehicle must be covered by an
insurance policy similar to, with the limits no less than, the insurance
coverage which is in effect while the motor vehicle is used for the
transportation of school children, school personnel or other adult
persons authorized by the school board of a school;
...
(8) Motor vehicles used by a nonprofit organization to solely provide
transportation to persons fifty five years of age and over or transport
(continued . . .)
-8-
#24511
subsequent damages. Id. SDCL 49-28-2(1) excluded from Public Utilities
Commission regulation motor vehicles used by school districts for transporting
students to and from schools or when use was granted to nonprofit organizations for
transport of persons under twenty-one years of age. See supra note 9. SDCL 49-28-
2(8) excluded from Commission regulation, motor vehicles used by nonprofits for
transportation of senior citizens or the handicapped. Id.
[¶16.] The grant under SDCL 49-28-2(1) was conditioned in part upon an
organization furnishing insurance coverage to the extent of that carried by a school
district for usual transportation during school activities. Id. In holding that the
school district waived sovereign immunity under SDCL 21-32A-1 by purchasing
liability insurance, the Court in Brown concluded that granted use pursuant to
SDCL 49-28-2(1) or (8), invoking immunity under SDCL 13-29-1, was related to
nonprofit-organization use of school district buses. 449 NW2d at 261. The Court
found that since such use under SDCL 49-28-2(1) was in part conditioned upon the
non-profit carrying liability insurance having limits no less than that carried by the
school district, the immunity language in SDCL 13-29-1 served only to prevent
stacking of liability insurance coverage and “did nothing more than reiterate the
________________________
(. . . continued)
those who by reasons of a physical or mental handicap are unable to
utilize conventional public transportation[.]
(Emphasis added).
-9-
#24511
common law concept of sovereign immunity embodied in the South Dakota
Constitution[.]” 10 Id. at 262.
[¶17.] With respect to SDCL 21-32A-1, the Court concluded:
SDCL 21-32A-1 provides that a public entity such as a
school district is deemed to have waived immunity and
to have consented to be sued as any other party may be
sued. It does not create the special variety of sovereign
immunity urged by District. Sovereign immunity exists
for school district’s [sic] use of school buses, but can be
waived, as was done here, by the purchase of liability
insurance.
Id. (emphasis added). We agree with the Court’s statement and its holding with
respect to the immunity provided under then enacted SDCL 13-29-1 and that it did
not apply to the facts of the case. The sovereign immunity that the school district
attempted to assert as a defense in Brown was created by the Legislature pursuant
to SDCL 21-32A-3. See supra ¶10. The district’s purchase of liability insurance
effected a waiver of the statutorily created sovereign immunity as provided by
SDCL 21-32A-1. The district’s assertion that immunity was preserved under SDCL
13-29-1, notwithstanding SDCL 21-32A-1, was simply incorrect under the
circumstances.
[¶18.] The South Dakota Legislature has enacted many statutes that provide
immunity from tort claims. It did so for a purpose. Although we have not
previously addressed whether a statutory immunity provision supersedes waiver
provisions such as those found in SDCL chapters 21-32 and 21-32A, our opinions in
10. In arriving at its conclusion, the Court made no reference to the fact that
SDCL 49-28-2(8) included no mandate that liability insurance coverage be a
condition to non-regulated use under that subsection. See supra note 9.
-10-
#24511
decisions subsequent to the Court’s decision in Brown are indicative of the efficacy
of statutory immunity. Were it to the contrary, all such sovereign immunity
statutes enacted or amended since SDCL chapters 21-32 and 21-32A in 1986 would
be superfluous since they would do no more than was done in that statute. Rather,
the Legislature has decided to grant statutory sovereign immunity in specific
instances which are not subject to the waiver provisions in SDCL chapters 21-32
and 21-32A. E.g., SDCL 7-9-21(1997) (registers of deeds not liable for refusal to
record documents when carried out in good faith); SDCL 9-38-105 (amended 1992)
(municipalities or governing boards thereof not liable for negligence in operation of
public recreation facilities by officers or employees of recreation board); SDCL 13-
24-20 (amended 2007) (school districts not liable for damages arising out of use of
their facilities, computers, motor vehicles, or land granted for community service
purposes); SDCL 20-9-4.1 (amended 1986) (no liability for good faith lending of
emergency care and services); SDCL 20-9-4.6 (2000) (immunity from liability for use
or failure to use automatic external defibrillator in emergency) SDCL 26-8A-14
(amended 1991) (immunity from liability for good faith reporting in connection with
suspected child abuse); SDCL 27A-7-10 (2000) (immunity from liability for county
boards of mental illness for good faith action on applications and petitions for
involuntary commitment); SDCL 36-4-25 (1998) (physicians peer review committee
not liable for acts in reasonable belief that action was warranted).
[¶19.] Furthermore, a review of the above statutes reveals a significant
expansion, beyond common law sovereign immunity, resulting from the statutory
enactments. By definition common law sovereign immunity protected only the
-11-
#24511
sovereign and its agents – today employees of the affected public entities. See
Conway v. Humbert, 145 NW2d 524, 526 (SD 1966) (holding sovereign immunity to
be available to “an officer or employee [of a governmental entity] in the performance
of his duties”). However, many of these statutes, enacted after 1986, expand
immunity beyond the purview of government and its protected individuals to all
“persons,” not just officers and employees of a governmental entity.
[¶20.] In Hall v. City of Watertown ex rel. City of Watertown Police
Department., the plaintiffs were injured as bystanders when an individual in a
stolen vehicle lost control while being pursued by a Watertown, South Dakota Police
Officer. 2001 SD 137, ¶2, 636 NW2d 686, 687. The plaintiffs sued the City of
Watertown, its police department and the pursuit officer. Id. ¶3. The defendants
sought summary judgment asserting immunity under SDCL 3-21-9. Id. ¶3, 636
NW2d at 688. The circuit court agreed that there was immunity under SDCL 3-21-
9. However, it denied the defendants’ motion ruling that it had been waived as
provided under SDCL 21-32A-1 by the city’s participation in a risk sharing pool.
Although we affirmed the circuit court’s decision to deny summary judgment, we
differed with its rationale. We affirmed concluding that the statutory immunity
provisions of SDCL 3-21-9 were inapplicable to the facts of the case. Id. ¶¶5, 7, 636
NW2d at 689.
[¶21.] The plaintiffs in Brown Eyes v. South Dakota Department of Social
Services, sued the Department of Social Services (DSS) and several of its
administrative and subordinate employees, in tort and contract, arising out of a
pending adoption that failed when an Indian tribal court asserted jurisdiction over
-12-
#24511
the subject children. 2001 SD 81, ¶3, 630 NW2d 501, 504. The defendants filed a
motion for summary judgment on both the tort and contract claims. Id. ¶4, 630
NW2d at 504. The circuit court granted the defendants’ motion, setting out
sovereign immunity for the rationale as to the tort claims. Id.
[¶22.] In affirming the circuit court, we found that since the DSS had not
purchased liability insurance or participated in a risk-sharing pool it had not
waived sovereign immunity under either SDCL 21-32-16 or 21-32A-2. Id. ¶7, 630
NW2d at 505. We also found that DSS’s administrative employees were properly
granted summary judgment since they had not engaged in any activity that
breached immunity. Id. ¶11, 630 NW2d at 506. However, we found that the three
social workers involved in the pending adoption were not eligible for sovereign
immunity. Id. ¶12. Nonetheless, we upheld the circuit court’s summary judgment
as to the social workers on the basis of statutory immunity grounded in a showing
of good faith pursuant to SDCL 26-8A-14. 11 Id. ¶¶ 13, 16, 630 NW2d at 507, 508.
11. SDCL 26-8A-14 provides:
Any person or party participating in good faith in the making of a report or
the submitting of copies of medical examination, treatment or hospitalization
records pursuant to §§ 26-8A-3 to 26-8A-8, inclusive, or pursuant to any other
provisions of this chapter, is immune from any liability, civil or criminal, that
might otherwise be incurred or imposed, and has the same immunity for
participation in any judicial proceeding resulting from the report. Immunity
also extends in the same manner to persons requesting the taking of
photographs and X rays pursuant to § 26-8A-16, to persons taking the
photographs and X rays, to child protection teams established by the
secretary of social services, to public officials or employees involved in the
investigation and treatment of child abuse or neglect or making a temporary
placement of the child pursuant to this chapter, or to any person who in good
faith cooperates with a child protection team or the department of social
services in investigation, placement or a treatment plan. The provisions of
(continued . . .)
-13-
#24511
[¶23.] The plaintiff’s claim in Cromwell, like that in Hall, arose from a police
pursuit that resulted in injury to the plaintiff. The plaintiff’s injury occurred when
an intoxicated motorist, who was being pursued by a Rapid City Police Officer,
collided with the plaintiff’s vehicle. Cromwell, 2001 SD 100, ¶2, 632 NW2d at 22.
The defendants filed a motion for summary judgement based on sovereign
immunity, which the circuit court denied. Id. ¶¶5, 6.
[¶24.] The defendants in Cromwell participated in a liability risk-sharing
pool at the time of the plaintiff’s injury, thus invoking waiver under SDCL 21-32A-
1. Id. ¶3. Following the collision, but prior to the complaint, the defendants
transferred their liability coverage from the risk-sharing pool to a private insurer.
Id. ¶4. The pool coverage was claims paid, meaning it only covered claims made
prior to coverage termination. Id. ¶3. The private insurer’s policy was claims
made, meaning coverage did not commence until the effective date of the policy. Id.
¶4. Since the defendants failed to purchase tail coverage from the private insurer, a
gap in coverage resulted. Id. ¶5.
[¶25.] The defendants argued that the gap in coverage entitled them to
reclaim sovereign immunity that had been waived by participation in the risk-
sharing pool. Id. ¶18, 632 NW2d at 25. In affirming the circuit court, we held that
once the defendants waived sovereign immunity, it could not be reclaimed without
the plaintiff’s consent. Id. ¶26, 632 NW2d at 26-27. However, in so holding, we
________________________
(. . . continued)
this section or any other section granting or allowing the grant of immunity
do not extend to any person alleged to have committed an act or acts of child
abuse or neglect.
-14-
#24511
implied that the defendants could have reclaimed sovereign immunity under these
circumstances had the Legislature enacted a statutory basis. In reference to the
language of SDCL 21-32A-1, whereby waiver is deemed to be consent to be sued, we
stated:
Once this consent is given, and absent a valid statutorily
recognized barrier to recovery, a public entity is in no better
position than any other defendant to defeat a plaintiff's
constitutional right to have his day in court. Does a statutorily
recognized barrier to recovery exist here? City has not
demonstrated any exist. Waiver of immunity and consent to be
sued occurs by operation of statute. We find no similar statute
which allows a public entity to reassert sovereign immunity for a
claim once it has been waived by operation of law.
Id. ¶31, 632 NW2d at 27-28 (emphasis added).
[¶26.] The Legislature’s intent is clear when SDCL 3-21-8 and 3-21-9 are
read together with SDCL 21-32A-1. See Wiersma, 1996 SD 16, ¶4, 543 NW2d at
789 (restating the well settled rule of statutory construction that legislative “intent
must be determined from the statute as a whole, as well as enactments relating to
the same subject”) (citations omitted). The plain language of SDCL 21-32A-1 states
that it is the “common law doctrine of sovereign immunity” that is waived by
procurement of liability coverage. Since immunity in the specific area of the
operation and maintenance of jails and correctional facilities, and administration of
prisoner release was created through legislative enactment of SDCL 3-21-8 and 3-
21-9, the general, common law waiver provisions do not apply. See also Schafer v.
Deuel County Bd. Of Comm’rs, 2006 SD 106, ¶10, 725 NW2d 241, 245 (reciting the
rule of statutory construction that “statutes of specific application take precedence
over statutes of general application”) (quotation omitted).
-15-
#24511
[¶27.] As previously noted, SDCL 21-32A-1 and SDCL 3-21-8 and 3-21-9 were
all enacted during the 1986 legislative session. It is therefore reasonable to infer
that while the Legislature sought to establish the basis under which public entities
could waive sovereign immunity, it was at the same time cognizant of a need to
immunize, through statute, torts arising from the operation and maintenance of
jails and correctional facilities, and administration of prisoner release. To conclude
otherwise would be to render SDCL 3-21-8 and 3-21-9 meaningless since immunity
would exist in lieu of public entity liability coverage, and would still be waived
without SDCL 3-21-8 and 3-21-9 in the event coverage was procured. See Yankton
Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶15, 592 NW2d 596, 599 (citing the
well established precept that “[t]here is a presumption against a construction which
would render a statute ineffective or meaningless”) (quoting In re Real Estate Tax
Exemption for Black Hills Legal Services, Inc., 1997 SD 64, ¶12, 563 NW2d 429,
432; Rapid City Educ. Ass’n v. Rapid City School Dist., 522 NW2d 494, 498 (SD
1994) (citing Nelson v. Sch. Bd. of Hill City Sch. Dist., 459 NW2d 451, 455 (SD
1990)).
[¶28.] Finally, Unruh argues that the operation of a jail under set
administrative policies is a ministerial function, which pursuant to our decision in
Kyllo v. Panzer, 535 NW2d 896 (SD 1995), would preclude the application of
sovereign immunity. However, the texts of SDCL 3-21-8 or 3-21-9 contain no
discretionary/ministerial distinction. By 1986, the Legislature was certainly aware
of this legal doctrine, because it has existed since early in statehood for issues
concerning common law sovereign immunity. Kyllo, 535 NW2d at 899 (citing State
-16-
#24511
v. Ruth, 9 SD 84, 68 NW 189, 190 (1896)). We interpret statutes as written. “When
a statute’s language is clear, certain and unambiguous, our function confines us to
declare its meaning as plainly expressed.” Wiersma, 1996 SD 16, ¶6, 543 NW2d at
790. Here, there is no ambiguity. The distinction between discretionary and
ministerial acts is not applicable. 12 We recently addressed this specific issue. In
Clay v. Weber, 2007 SD 45, 733 NW2d 278, we stated:
We do, however, observe that Inmates mistakenly argue
that the activities of the Administrators were ministerial,
and therefore Administrators were not entitled to statutory
“immunity.” Because the ministerial/discretionary
distinction is not within the text of SDCL 3-21-8 and 3-21-9,
that distinction is not relevant to the Administrators’
entitlement to this statutory immunity. The distinction
is only relevant under sovereign immunity. . . .
Id. ¶7 n5, 733 NW2d at 282 n5 (emphasis in original). 13
[¶29.] For all the foregoing reasons, we hereby answer the certified question
in the negative.
[¶30.] SABERS and KONENKAMP, Justices, concur.
[¶31.] ZINTER and MEIERHENRY, Justices, concur specially.
ZINTER, Justice (concurring specially).
12. Likewise SDCL 3-21-8 and 3-21-9 also fail to contain the words “sovereign
immunity” despite the fact the Legislature expressly put the term in SDCL
21-32A-1, which it enacted during the same session.
13. We have also been invited to examine this issue in light of South Dakota
Constitution Article VI, section 20, commonly known as the “Open Courts
Provision.” Plaintiffs claim SDCL 3-21-8 and 3-21-9 are unconstitutional as
violative of that provision. As this is not part of the question certified to us
by the Federal District Court we decline to address it at this point and leave
it for another day when it is properly before us.
-17-
#24511
[¶32.] I concur, but would not address the discretionary/ministerial question
considered by the Court, even though it has been raised by the parties. I would not
address that question because it was not certified as a question by the district court.
Our appellate jurisdiction is limited, and in these cases it is limited to answering
“questions of law certified . . . by the . . . United States district court[.]” SDCL 15-
24A-1 (emphasis added). Because the discretionary/ministerial question was not
certified, we are without jurisdiction to determine whether the
discretionary/ministerial doctrine has application under the statutes and facts of
this case: these are questions for the district court.
[¶33.] I also write to note that in my view, this is a unique case that does not
require analyzing and determining the differences between common law and
statutory immunity. The entire field of common law sovereign immunity regarding
the operation of this jail (and the purchase of insurance) has been superseded by
statutes rendering this question solely a matter of statutory interpretation.
[¶34.] The common law doctrine of sovereign immunity is acknowledged and
incorporated in Article III, Section 27 of the South Dakota Constitution. Under that
constitutional provision, the “Legislature shall direct by law in what manner and in
what courts suits may be brought against the state.” Id. Pursuant to that
authority, the common law doctrine of sovereign immunity has today, in large part,
been transformed from common law; i.e. decisional law, to statutory law. With
respect to the issues of jails, insurance, and participation in risk pools, the common
law has been entirely displaced by SDCL 21-32A-1, SDCL 3-21-8, and SDCL 3-21-9.
-18-
#24511
Thus, our task is to determine the nature and extent of the state’s sovereign
immunity under these statutory directives.
[¶35.] Ultimately, for the reasons expressed by the Court, I agree that the
immunity afforded under the more specific immunity statutes (SDCL 3-21-8 and 3-
21-9) is not abrogated by insurance or risk pool participation under SDCL 21-32A-1.
[¶36.] MEIERHENRY, Justice, joins this special writing.
-19-