*1 C.D., R. Plaintiffs CODY and William Appellants, Bartron, Greg LEAPLEY
Walter Appellees.
Defendants and
No. 17328.
Supreme Court of South Dakota. April on Briefs
Submitted
Sept. *2 presently serving a life sentence
Cody) is Penitentiary for a State the South Dakota 1. At all times of a 1978 murder conviction case, an inmate pertinent to he was (hereinafter Cody Mrs. institution. C.D.) incarcerated. Defendant is not so of the state Leapley the current warden penitentiary employed has so and been Bartron May 1989. Defendant since of the South Dakota president the former and Corrections. Board Charities granted trustee status Cody In 1986 was him to penitentiary. This allowed at the facility prison outside the in the trustee live He active in certain commu- walls. became access to an nity projects and was allowed Platte, Tappe, plaintiffs/ap- A. Lee computer by use of a office pellants. prison authorities. Pierre, Gen., Barnett, Atty. Rich- Mark time, Cody also embarked About Erickson, Helsper Helsper & ard J. program he characterized as one upon a O’Brien, defendants/appel- Brookings, improvement and rehabilitation. lees. tapes began making about relaxation He concerning and also about matters sex. GILBERTSON, Judge. Circuit later Cody testified that these concerns LEGAL ISSUES disfunction in certain dealt sexual through goal he His claimed what women.
I. fantasy therapy,” was described “sexual THE TRIAL COURT CLEARLY ER- WAS various sexual to assist these women with IN ITS DETERMINATION RONEOUS problems. PLAINTIFFS HAD FAILED TO THAT 21, 1988, Clyde Hagen, then January On OF THEIR OWNERSHIP CER- PROVE to the retired administrative assistant now PERSONAL PROPERTY DESIG- TAIN Solem, Cody’s sta- ordered trustee Warden AS EXHIBITS THROUGH NATED ONE Cody revoked returned behind the tus
TWENTY-FOUR? prison The basis for this revocation walls. II. Hagen’s Cody planning was was belief that DID IN THE COURT ERROR TRIAL escape. investigation, After further an IN GRANTING SUMMARY JUDGMENT prison Cody also officials claimed abused FAVOR OF THE DEFENDANTS by violating his trustee status visitation FOR AGAINST PLAINTIFFS’ CLAIM photograph rules which resulted in a nude DE- DAMAGES BASED ON PRIOR ITS being by Cody prison taken of C.D. on THAT PLAINTIFFS TERMINATION THE grounds cottage trustee and subse- DID NOT RIGHT TO ESTABLISH THEIR quently sent to individuals outside various POSSESSION OF CERTAIN PERSONAL Also, penitentiary. officials PROPERTY? Cody “abusing privi- his claim was mail FACTS fraudulently leges purpose ob- in- taining pecuniary gain.” After further and wife. husband (hereinafter vestigation R. administrative Plaintiff William Court, (S.D.1982); Cody, (S.D.1980); 1. See State v. Circuit N.W.2d 892 N.W.2d 440 Solem, Cody, (S.D.1982); State v. (8th Cir.1985). State N.W.2d 11 F.2d 1323 Cody, (S.D.1982); Tappe hearing, graphic classification board the Defen- op- materials” and accuse Hagen’s upheld dants erating, claim actions name, “repug- under a fictitious by Warden Solem. nant whereby ‘commercial venture’ he (Cody) distributing fantasy sexual return Cody’s At the time into tapes to individuals who had advertised prison, certain items in trustee office pornographic magazines.” various The de- by prison were retained officials. These *3 unnecessary fendants found the material litigation. items are the source of this Cody’s rehabilitation. notebooks, They appear to computer be disks, and various documents. The note- Cody and attempted informally C.D. correspondence books contain to and from secure the property seized Charcot, persons identified as Re- attempts officials. These were unsuccess- throughout vere to various individuals Thereafter, Cody ful. and filed a C.D. de- country. Much of the content of these claratory judgment against action the De- explicit letters is of an sexual nature. seeking fendants return of the Cody claims these are his letters re- and damages. and plies transcripts received. au- Written tapes dio tape described “sexual arousal PROCEDURE recordings” were also included in the suit, After the filed the defen- seized material. He that let- states these dants turned over the seized items still in part ters and documents were of his reha- possession their to the trial pending court program bilitation which would be used litigation. determination of the The defen- his effort win a commutation.2 Also repeated dants also filed motions for sum- in the contained items seized are numerous mary judgment stages at various of the photographs. Many show naked females proceedings based on doctrine of sover- and males. Some also show individuals eign immunity require- and the notification engaged in various sexual activities. ments found in SDCL 3-21-2 and photographs claims these are his property pretrial hearing, agreed were also used in his At a it rehabilitation was that program. was trial to be bifurcated. The initial part of the trial be held to would determine prison, While in Cody became married to Codys if the could establish their owner- apparently C.D. She him visited at the ship right and proper- of the facility through trustee furloughs and ty. any liability damages The issue of for granted. Codys allege was The would be for a reserved later date. the items seized contain intimate marital photographs of Codys themselves. The portion The first concerning trial wish photographs these returned to them ownership April was held on and and it maintain would cause them embar- proceeding, by 1990. At that stipulation of pictures rassment if public. were made counsel, through exhibits 25 40 were re- They claim already have suffered emo- However, plaintiffs. plain- turned to the upon learning tional distress these right tiffs their reserved to seek photographs have been viewed certain wrongful purported for the seizure these prison and state officials. Thus, dispute ownership exhibits. over defendants view the items reduced items were marked seized and Cody’s time, light. They activities 1-24.3 different exhibits At that tes- characterize items “porno- generally concerning seized as tified their claimed pa- In South Dakota life in is without 3. When the box of documents was delivered Thus, only Court, role. SDCL 22-6-1. apparent- method it did not contain what was person serving release for a such a is sentence ly marked trial as exhibit 10. From a review pardon to secure a or a commutation from record, appears of the it it was removed Governor of South Dakota. See SDCL 24-14. copying apparently and was never returned. received, clemency prisoner If such would eligible, time, appropriate then be at the parole pardon, outright or in case of a an re- lease. deficiencies, presented whether seized dictional ownership of the documents Phipps, not.” State necessary parties either items were that the (S.D.1987) citing per- State or intimate N.W.2d Cody’s rehabilitation Mr. (S.D.1985) 193, 195 The defen- photographs. Huftile, papers sonal note that argue original). Defendants (emphasis dants continued capac- representative pornography. are sued in their nothing more than individually, and therefore ity, rather than trial, plain- of this During course actually against State the suit an intention- attorney made tiffs and High-Grade Dakota. See Oil exhibits not to introduce al decision tactical (S.D.1980). Sommer, rationale was Their 1-24 into evidence. ex- were to become sovereign immunity, the documents that if The doctrine record, hibits, part III, thus of the by Article established § public and defeat Constitution, content would become must be South Dakota totally confi- goal securing a Codys’ isolation, interpreted but must viewed *4 personal property. their return of dential along of that document with the balance a to Thus, never had chance the trial court as to a determination is made wheth- when exhibits 1-24. items marked as view the pursuing from plaintiffs the are barred er their claim. completion testimony, of the Upon the findings of fact and entered trial court complaint alleges the Plaintiffs’ Codys had of conclusions law wrongfully seized proof of establish failed in their burden VI, Thus, Article 13 of property. § property. this ownership of may apply. It Dakota Constitution ruling, the defen- the trial court’s After states, not property shall be taken “Private their motion for sum- again renewed dants use, damaged, just without public or plain- the balance of the mary judgment on determined ac compensation, which will be of complaint on the doctrine tiff’s based by procedure cording legal established immunity purported and the fail- sovereign Legislature....” provision While comply ure notifi- of has, past, generally in the been concerned 3-21-2 requirements of SDCL cation involving ar property,5 the with cases real This granted court that motion. Thus, it “private property.” covers ticle all appeal followed. property. clearly personal also includes rel. v. Grigsby 43-1-3. State ex SDCL ANALYSIS LEGAL 114, Buechler, 156, 116 N.W. 10 S.D. 72 (1897); Owen, Dept. v. 350 IMMUNITY S.D. Health SOVEREIGN of 48, (S.D.1984). 51-52 N.W.2d Sovereign immunity a. and the cause possession action to recover request of for re- nature Given of property. in plaintiffs’ 1-24 contained turn exhibits statute, 21-32- complaint, specific SDCL argue initially Defendants 8, protection. implements this constitutional plaintiffs’ cause of action for ad- and all actions to determine prohibited by sovereign 1-24 is exhibits property, personal claims to real or immunity juris- Court is verse therefore this involving possession person- of real or dictionally barred from a the trial or review findings mortgages property, fact al or to foreclose court’s and conclusions proper- upon “It rule in this other liens real or law on issue. is the same, partition the state jurisdiction affirmatively ty, state must made sued and appear from the record and this court South Dakota of this state. required juris- note of defendant in the courts sponte sua take Boland, (1966); Rapid City 271 Codys City v. represents 722 4. Counsel who before this Rapid represent (S.D.1978); City not trial. Court did them at 60 Boland N.W.2d (S.D. 1982). City, 315 496 N.W.2d 59, State, 201 5. Darnall v. 79 S.D. 108 N.W.2d 156, State, (1961); Hurley 143 N.W.2d S.D. imply deposited This is not that all tak fiscated shall be in the state ings general or seizures the state will result in fund. compensation to the or return of owner general, We further note that a ward- property No return of the nor
property.
of a
range
en
is allowed wide
compensation
where
is allowed
the state
policies
executing
discretion in
that are de-
that its
were done un
establishes
actions
order,
signed
preserve
discipline
pre-
power
police
its
such
to abate a
der
escape.
Wolfish,
520,
vent
Bell v.
U.S.
Boland,
nuisance.
public
at
547,
1861, 1878,
99 S.Ct.
60 L.Ed.2d
66-8; Boland,
498-9;
315 N.W.2d at
(1979);
Scurr,
Rogers v.
676 F.2d
Owen,
50-52;
Landers,
supra
Romey v.
(8th Cir.1982);
Norris,
Little v.
(S.D.1986).
Where
Cir.1986);
(8th
Spence
F.2d
legislature,
implementation
of its
Farrier,
(8th
Cir.1986).7
807 F.2d
powers, provides
penal
constitutional
ties,
forfeitures,
proper
police pow-
such
such
Absent the
of the
action is not
use
taking
private
property
a constitu
pursuant
er
warden
24-2-
sense.
It is
deemed to
tional
be an
lawfully
discretion,
26 and his
exercised
domain,
power
exercise of the
of eminent
wrongful
property may
seizure of
private property
public
taken
where
upon
been inflicted
use. The
interest is rather invad
Solem,
defendants. Retired Warden
who
legislature
because
ed
has found it
alleged
was warden at the time of the
necessary
preserve
public
in order
seizure,
testify.
did not
Neither was
represents
(legisla
“As such it
welfare.
Cody’s prison
(the missing
10),
file
exhibit
*5
tive)
police power
of
exercise
a
to which the
records,
nor other
relevant
intro-
requirement
compensation
constitutional
of
Thus,
by
duced
defendants.
the trial court
inapplicable.”
is
v. One 1962 Ford
U.S.
provided
was not
awith
factual basis to
Thunderbird,
1019,
F.Supp.
232
1022
of
legality
determine the
the actions taken
(N.D.Ill.1964).
also,
See
Hamilton v. Ken
regard
in
of
the seizure
exhibits 1-40.
Co.,
146,
tucky Distilleries
& W
U.S.
Therefore,
say
we cannot
as a matter of
156-7,
106, 108-9,
40 S.Ct.
disposed
damages
of in the
in
opin-
manner as
injury, property damage,
ion of the
of
secretary
corrections will
for
promote
death,
by
best
error or
caused
a
interest of the state.
omission or
money
public entity
employees
Unauthorized
may
which has been con-
or its
be
"They
Kansas,
suggest
process.”
that certain uses of
Van Oster v. State
272 U.S.
of
may
regarded
465, 467-8,
134,
354,
be
as so undesirable
47 S.Ct.
71 L.Ed.
peril.
owner surrenders his
at his
control
(1926).
secondary
against
thus builds a
law
forbidden use and
pensing
defense
a
precludes
by
evasions
dis-
specific
Carpenter
Of
decision of
interest is the
judicial
necessity
inquiry
with the
as
Dakota,
(8th
v. State
been
to the commis-
2. PLAINTIFFS’ CLAIM OF OWNER-
sioner of administration.
SHIP OF EXHIBITS 1-24.
Neither
the burden be shifted to
can
complaint
alleges
Plaintiffs’
plaintiffs
prove compliance under a theo-
wrongful
their property
seizure of
ry
jurisdiction-
3-21-2
3 are
that SDCL
declaratory
In
seeking
defendants.
actions
al
plaintiffs
and failure
to affirma-
recovery of property
alleged wrongful
record,
tively
compliance
cre-
show
seizure,
proof
upon
the burden of
falls
jurisdictional
ates a fatal
defect. Cf
plaintiff.
Liberty
North
Land
v.Co.
Inc.
point
our
Phipps, supra. Defendants
101,
City
Liberty,
North
311 N.W.2d
language
Tea,
City
in Finch v.
(Ia.1981);
Nuemberger,
Mullendore v.
(S.D.1989)
632,
compliance
230 Neb.
with
“mandatory.”
this statute is
(1989) (as
declaratory judgments gener
Although this
oc
Court has not had the
ally);
Coop.
Payne,
Basin Elec. Power
casion to examine
3-21-2
SDCL
and 3
(S.D.1980) (interpreting
they
want
officials,
pretrial
trial
them.
have the
court view
affidavits stated that
even
“improperly possessed” the “items
plaintiffs
the
The
court held that
10
seized.”
ownership
establish
had failed to
denied
property and thus
trial,
plaintiffs subpoenaed former
At
prop-
request
given
be
Hagen, and cur-
Assistant
Administrative
erty.
Ma-
Rist11 and
rent
officials Colonel
suppression by a
nonproduction
The
or
However, plaintiffs never
jor Severson.
is within his
party
of evidence
identify
asked
of these officials to
and which material
power
produce
During
as
1-24.
items marked
exhibits
justifies
the case
the infer-
to an issue in
Severson,
testimony
Hagen,
Rist and
him
be unfavorable to
ence that it would
objected
no less
defendant
counsel
general appli-
produced.
if
rule is of
had not
than three times that
exhibits
cation;
may
where real
and it
be invoked
point
been offered. At one
the trial court
evidence
involved.
demonstrative
get
“I
the exhib-
stated
think we should
1958).
(5th ed.
447
Jones on Evidence §
determining
they
its
are....”
and to
what
(6th
on Evidence 3:91
ed.
also Jones
See
§
Subsequently
Thereafter
testified.
1972); 29 Am.Jur.2d Evidence
§
stated,
why
“I’m
the trial court
not sure
it
Annotation,
(1967);
A.L.R.4th 906
was
to me
what-
delivered
but
[Exhibit 10]
(1989).
purpose,
ever
until it’s introduced in
scope
analyzing
of this
the effect and
evidence,
any feeling
I
it.”
don’t have
about
presumption, it has been determined that
warning,
After
C.D. also testified.
adversary
evidence in
where an
withholds
Yet,
at-
neither William
nor C.D.
supports
possession that he
his
his
claims
tempted
identify,
let alone offer into
facts,
strongest
“the
infer-
version of the
evidence,
Finally,
disputed
items.
against him which the
ences
drawn
be
attempted
subpoena
never
ei-
permits.”
opposing
in the record
evidence
ther defendant or the now retired Warden
396,
A.D.2d
Madifari,
Jarrett
testify
point.
Solem to
on this crucial
(1979),citing
N.Y.S.2d
Perlman v.
Shanck,
App.Div.
The trial court this rule ownership establishes transfers arriving argue Codys at its decision. merely document to that individual because presumption have overcome this trial, During fact. defen never denied maintain ownership. dants claimed that exhibit which is now claim of To the contrary, file, places missing from the court such a defendants’ answer blindly 10. It certainly "items chain of to show cannot assumed There is no evidence seized" must include exhibits 1-24. After the original portion that these “exhibits” are a of the “items seizure, de- numerous documents Cody. seized” from by Clyde Hagen scribed car loads of as “several *8 property” returned were to C.D. argument Rist’s de- Plaintiffs’ that Colonel trial, matter, day prior testimony, Hagen’s handling On the scription, to exhibits of the as 25-40 re- were identified in the record and “plain stupid,” constituting proof of Co- ass as plaintiffs by to turned defendants. dys’ ownership, Colonel Rist also is incorrect. Thus, containing we are left a box items guess “I I was not aware what all testified that we, marked as exhibits Neither 1-24. nor property I seen it.” was because never court, by telepathy, trial can determine osmosis Thus, opinion Hagen’s con- whatever Rist's preliminary other method the essential be, clearly proof it does not constitute duct identification, proper matters reaching such let alone Codys. 1-24 were owned exhibits ownership. the ultimate of actual issue (S.D.1990). such, Codys’ Cody. Cody on bolstered this As claim to prison file missing testifying part of the point by damages wrongful for seizure as to these Hagen’s prison Cody. file on material was properly items was also dismissed. Likewise, the numerous statements By stipulated return of exhibits 25- throughout proceed- plaintiffs’ counsel prior trial, obviously to ad- to owner- ing concerning plaintiffs’ claim they possession mitted that had retained evidence, coun- ship items are not of the property which the owned testimony give admissible and sel could previously possessed. and pro- Further participating attorney. Estes remain as ceedings required are to address Milled, (S.D.1990). damages purported claim of for improper counsel, arguments of how- Oratory and taking of exhibits 25-40 defendants. eloquent, evidentiary not a ever basis disposition of the to avoid an unfavorable CONCLUSION case. Id. sought portray William has to him- right require Plaintiffs had no to the trial imprisoned seeking self as an man to reha- ownership accept court to their claims of in day bilitate himself the vein of a modern they sought the on blind faith. Since
based Henry. appeal, To decide this it is not equitable gaining pos- assistance in Court’s necessary for us to sit as some sort of a items, they were not correct session of the censorship literary analyz- review board withholding intentionally the most cru- in ing the us mass documents before and cial evidence from the court.12 comparing them to “The Ransom of Red refusing Codys’ justification Magi.” “The Chief” or Gift 1-24, offer the marked as exhibits For the reasons set forth above we hold protect priva- their based on their desire to clearly that the trial court was not errone- documents, of the cy as to the content concluding ous in had failed overcoming their irrelevant burden ownership 1-24 prove of exhibits and ownership of the proof to establish damages. right thus the right possession. documents and their The documents marked exhibits are to self-professed modesty by Codys This withholding Leapley. from be returned to Warden as a exhibits basis surprising light the trial court is further The issue of as to exhibits 25- of the fact that both and C.D. admit- 40 is and remanded to the trial reversed Codys provided ted on stand that proceedings in court for further accordance copies photographs of their nude opinion. with this persons third still a while trustee. AMUNDSON, JJ., concur. WUEST and Thus, the trial decision as to the court’s J., HENDERSON, part clearly concurs ownership of 1-24 is not exhibits part. 317 dissents in erroneous. In re J.J. 454 N.W.2d matter, "shall be filed as 12. As a collateral to intro- exhibits "offered” failure duce the "exhibits” causes additional adminis- in said cause.” records Thus, problems. of- court, trative Because were never the trial would have also we like admitted, prepared fered nor no index was having position been in the determine appeal processing the clerk of courts ownership of the documents as well as whether ordinarily pursu- which would have been done in a were obscene used fraudulent and/or great ant 15-26A-53. Given the scheme, evidentiary be- in an vacuum without amount of material contained in these "exhib- its," ing appellate gymnas- them. Such able to view judicial needlessly hours countless squander judicial possible tics is not spent attempting identify to locate and vari- time and resources. ous documents. appellate context and An court must look at the Had the trial court and its clerk followed to the cases. Car the content of the material in such 15-15-3, letter, requirements of SDCL Wisconsin, citing penter, supra at 764 Kois personal property would been returned 33 L.Ed.2d U.S. 312, 92 S.Ct. being part the defendants rather than of the (1972). appeal record. That statute declares that all *9 involving in acts, himself a J., deeply he SABERS, was dissents. self-help program. Under rehabilitation GILBERTSON, Judge, for Circuit 6, the Warden had the SDCL 24-2-1 and MILLER, C.J., disqualified. ma right the above-described to confiscate HENDERSON, in (concurring Justice terials. These materials not authorized part). in dissenting part, pos any to in his by for convict law law, Cody not of settled is As a matter law, upon point session. On based a trial. Honorable Robert entitled to safety public and of the citizens policy Judge, entered a Heege, properly Circuit state, a trial. Cody is not entitled to summary trial court level. judgment in Running a does include up setting shop to sell or distribute mate a I concur that the documents to the extent materials, explicit or for profit sexually 1-24 returned to marked Exhibits are to be matter, establishing any of busi kind granting Cody a Warden. I dissent to only It common sense ness. makes concerning on the issue reasonably pris limit a prison officials can Judge I affirm Exhibits 25-40. would necessary to it oner’s activities when Heege’s entirety. in decision its security, discipline, order maintain Cody murderer. is a convicted Stem- right penal Cody's within the institution. conviction, ming Cody from his has now is, put, possess personal property simply to upon plagued the courts and been a burden of his limited reason confinement. for well taxpayers the South Dakota over Hankins, (5th F.2d Cir. McCrae sue the State of decade. He now seeks to Galli, 1983). F.Supp. In Johnson v. trustee, because, as a re- South Dakota 1984), (D.Nevada court district Penitentiary turned to the confines of the stating: “Jail approvingly, cited McCrae walls, damaged he he due claims has been or security need to maintain officials’ personal prop- deprivation of seized on the der allows reasonable restrictions confiscated) (or property erty. This seized rights who are confined property of those alia, consists, pho- pornographic inter a 5th there.” The District Court also cited wife, C.D., he tograph appar- of his holding proposition, case this same Circuit profit, outside of the ently distributed (5th Ford, 609 F.2d Sullivan walls, he took of his Penitentiary but which Cir.1980). right As had no whatsoev Cody, status. while he on trustee wife was question, in he er to the status, while on trustee unbeknownst right damages. has no sue for officials, Penitentiary operated com- liability Cody. no Dakota has enterprise. consisted of dis- mercial This only Cody’s The weakness lawsuit tributing profit fantasy tapes for sexual it, audacity bringing his once matched same, engaged distributing those again re- consuming judicial valuable using pseudonym up his cover activi- sources. trustee was Cody’s ties. status revoked upon the that he abused his mail basis SABERS, (dissenting). Justice establishing a en-
privileges by commercial terprise producing tape recordings in question I reverse on would pain management, chemo- the areas proper summary judgment whether anorexia/bulimia, alcohol/drug therapy, genuine fact because a issue material effect, anxiety. speech abuse and these Cody’s ownership exists as up profit while he was set business personal property. defen items of serving life for murder. sentence there are no dants failed show fact, genuine contrary
It is offi- issues material axiomatic our state Co., cials, McKinney more who v. Pioneer Ins. particularly the Warden Life (S.D.1991), delegates authority, responsibility to N.W.2d State has a Thiewes, Dept. preserve Rev. v. discipline order and the State (S.D.1989). Therefore, summary judgment Penitentiary. Cody, unbelievably, main- Int’l, improper. Inc. v. Ten by engaging tains that in these nefarious was Groseth *10 (S.D.1987); Inc., neco, Gordon,
Bego v.
(S.D.1987). plaintiff’s own- even seem that
It would sufficiently to with-
ership was established if for directed verdict a motion
stand hearing or a trial instead in fact judgment as claimed.
summary BANK OF
The FIRST NATIONAL Boe;
EDEN, Stanley corporation; Anderson, Plaintiffs R.
and Jeannie Appellants, (also MEYER, known as Her
Herman Meyer); Gladys Meyer; F. Gor
man C. Phillips Phillips, doing business as
don Co.; Regional Luke’s Midland
Oil St. Center, formerly Luke’s
Medical St. doing
Hospital, corporation, business Clinic, County for Marshall Medical Center;
merly Britton Medical Inc., Co., corpo Farmers
Dakota Oil Co., Inc.,
ration; corpora Oil Suther
tion; County, political and Marshall Dako
subdivision of the State of South
ta, Appellees. Defendants and
No. 17345. Dakota.
Supreme Court of South
Argued May 9, 1991.
Decided Oct.