908 N.W.2d 160
S.D.2018Background
- Dustin Wilkie was charged in Minnesota with domestic assault of his daughter M.M.W.; M.M.W. moved to South Dakota to live with her grandfather William J. Wilkie (Wilkie).
- A Minnesota judge issued certificates under the Uniform Act declaring Wilkie and M.M.W. material witnesses and requesting their attendance in Moorhead, MN; certificates stated no known hardships.
- Moody County (SD) sought enforcement under SDCL 23A-14-14 et seq.; the South Dakota circuit court scheduled a show-cause hearing in Flandreau.
- Wilkie and M.M.W. missed the in-person hearing by mistakenly traveling to Minnesota; Wilkie participated by phone. Neither was represented by counsel and the court did not advise them of Marsy’s Law rights.
- The circuit court ordered both to appear and testify in Minnesota; Wilkie and M.M.W. appealed, arguing Marsy’s Law notice and undue-hardship/materiality errors.
- The South Dakota Supreme Court consolidated the appeals, held it had jurisdiction (treating the proceeding as civil), affirmed Wilkie’s order, and reversed/remanded as to M.M.W. for further findings on hardship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marsy’s Law (SD Const. art. VI, §29) required advising witnesses (victims) of right to consult counsel in this proceeding | Wilkie/M.M.W.: South Dakota Marsy’s Law entitles crime victims to be informed they may seek counsel; court should have so advised | State: Proceedings concern an out-of-state crime; South Dakota constitutional victim rights don’t apply to crimes committed wholly outside SD; Minnesota law controls | Held: Article VI, §29 does not apply to crimes committed wholly outside SD; no obligation to advise under Marsy’s Law in this SD ancillary proceeding |
| Whether the circuit court erred in ordering Wilkie and M.M.W. to testify (materiality/necessity and undue hardship under SDCL 23A-14-16) | Wilkie/M.M.W.: Insufficient showing of materiality/necessity and undue hardship; M.M.W. presented counselor’s letter about mental-health risks | State: Minnesota certificate is prima facie evidence of materiality and no known hardship; appellants failed to rebut with substantial evidence | Held: Wilkie — affirmed (no evidence rebutting materiality or showing personal hardship). M.M.W. — reversed and remanded because the court failed to make findings on the counselor’s evidence of undue hardship and did not adequately address that claim |
Key Cases Cited
- State v. Schwaller, 712 N.W.2d 869 (S.D. 2006) (appealability is statutory; appellate jurisdiction is defined by legislature)
- Codey ex rel. State v. Capital Cities, Am. Broad. Corp., 626 N.E.2d 636 (N.Y. App. Div. 1993) (proceedings to enforce out-of-state witness demand are civil in nature)
- Lord v. Hy‑Vee Food Stores, 720 N.W.2d 443 (S.D. 2006) (discussion of presumptions and prima facie evidence)
- Nemec v. Goeman, 810 N.W.2d 443 (S.D. 2012) (standard for when a presumption disappears after substantial, credible rebuttal evidence)
- Sazama v. State ex rel. Muilenberg, 729 N.W.2d 335 (S.D. 2007) (criminal contempt in civil proceedings can trigger constitutional right to counsel)