(dissenting).
[¶28.] Less than one year ago, this Court by a four to one vote in Krebs v. Weber, 2000 SD 40, 608 N.W.2d 322, held that there is no constitutional or statutory right to evaluate the performance of habe-as counsel under the standard set forth solely for criminal actions in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Since that time, there have been no relevant amendments to the applicable constitutional provisions nor state or federal statutes. Neither has there been any decision in the federal courts that would mandate an overturn of Krebs. Yet today, this Court overturns Krebs without any proper basis to do so. Bottom line-nothing has changed except the bottom line.
[¶ 29.] I agree with the Court that there is no federal constitutional or statutory mandate that Strickland is applicable to South Dakota habeas proceedings. Krebs, 2000 SD 40, at ¶¶ 7-9, 608 N.W.2d at 324-5. Likewise, there is nothing in the South Dakota Constitution to support such a claim. Thus, to justify the thesis of the Court, the sole potential source of authority is SDCL 21-27-4. As such, this case is one of statutory construction. SDCL 21-27-4 states:
If a person has been committed, detained, imprisoned or restrained of his liberty, under any color or pretence whatever, civil or criminal, and if upon application made in good faith to the court or judge thereof, having jurisdiction, for a writ of habeas corpus, it is satisfactorily shown that the person is without means to prosecute the proceeding, the court or judge shall appoint counsel for the indigent person pursuant to chapter 23A-40. Such counsel fees or expenses shall be a charge against and be paid by the county from which the person was committed, or for which the person is held as determined by the court. Payment of all such fees or expenses shall be made only upon written order of the court or judge issuing the writ, (emphasis added).
Clearly, no reference to Strickland or anything similar to its holding can be gleaned from the pertinent portions of the statute. The reason is obvious. The relevant part of what is now SDCL 21-27-4 was enacted in 1943. See SL 1943, ch. 126.2 Portions *26of the statute not pertinent to this issue were amended in 1969 (SL 1969 ch. 163) and 1983 (SL 1983 ch. 169 § 5). Strickland was not decided by the United States Supreme Court until May 14, 1984. The Court does not explain how the 1943 South Dakota Legislature was able to foresee the 1984 Strickland decision and further intended that it be incorporated into the civil habeas corpus statute it was enacting.
[¶ 30.] As was further pointed out in Krebs, the Legislature’s lack of action since 1984 to incorporate Strickland standards into the habeas statutes is also consistent with the premise it did not want to do so. Krebs, 2000 SD 40, at ¶ 9, 608 N.W.2d at 325.3 The case is well-known in the criminal area and has fostered numerous cases within this Court as well as nation-wide. Yet, the reaction of the Legislature has been silence. Its 1943 statutory language remains intact.
[¶ 31.] Philosophically, the theory of the Court to apply Strickland to habeas cases obviously has its supporters. It is a rational alternative. However, that policy decision is not one to be made by this Court under the guise of statutory interpretation — it is constitutionally the sole prerogative of the Legislature. This Court has been a champion of upholding the doctrine of separation of powers in guarding against improper encroachments upon its constitutional duties and obligations. We should be equally as zealous to insure we do not fail to grant the same constitutional deference to the Legislature in this instance.
[¶ 32.] Moreover, we are not blowing the dust off of an ancient decision of the earliest days of this Court that can no longer be upheld based on current rules of statutory construction. Rather, we overrule a case upon which the ink is barely dry and in which the same five jurists participated that participate in this case today. I respectfully argue that this Court got it right the first time less than one year ago in Krebs. We would do well to heed the words of Justice Wollman in Daugaard v. Baltic Co-op., 349 N.W.2d 419, 428 (S.D.1984) (Wollman, J., dissenting):
If we were free to strike down statutes willy-nilly on the basis of our personal feelings, the result of the proposed opinion might be justifiable. Once this court, or any other court for that matter, starts down that road, however, I see no end in sight. Although it might well be a heady, enjoyable experience to correct what we may perceive to be unwise, ill-conceived legislation, I see no warrant for us to do so in the absence of palpably unconstitutional legislative action.
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[This] decision will do nothing to add to this court’s reputation for constancy, consistency and reasoned elaboration.
*27[¶ 33J For the above reasons I respectfully dissent.
[¶ 34.] MILLER, Retired Chief Justice, joins this dissent.
. The statute as originally enacted in 1943 stated:
In any case where a person shall have been committed, detained, imprisoned or restrained of his or her liberty, under any color or pretense whatever, civil or criminal, and where upon application made in good faith to the Court or Judge thereof, having jurisdiction, for a Writ of Habeas Corpus, it is satisfactorily shown that such person is without means to prosecute the proceeding, the Court or Judge shall appoint counsel for such indigent person, and such counsel so appointed, after the disposition of such proceeding, shall be paid a reasonable and just compensation for his services .... (emphasis added).
. The Court today declares our holding in Krebs to be mere dicta. In so doing it focuses on one sentence taken out of context at the end of the Krebs opinion. However, placed in context, that sentence: "no attorney, even one mounting a textbook perfect all-out effort let alone one who meets the Strickland standard of competence, could have produced a different result” is in reference to the preceding paragraph which discussed the lack of prejudice that resulted from the failure of counsel to file an Anders/Sweeney brief. Krebs, 2000 SD 40, at ¶¶ 11-12, 608 N.W.2d at 325-6. The issue in Krebs, as framed by the Court, stated: "Krebs argues Thompson rendered ineffective assistance of counsel per Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) during his first habeas proceeding_" Id. at ¶ 7, 608 N.W.2d at 324. To claim our decision that Krebs was not entitled to constitutionally effective counsel in his initial habeas petition to be dicta, provides a convenient, yet unpersuasive, explanation to escape the unavoidable conclusion that Krebs had been overruled in its entirety.