A judicial order that for several years has excluded all Oglala Lakota County residents from serving on juries has been thrown out by the South Dakota Supreme Court.
The standing order was filed in 2009 by Judge Jeff Davis, who was then the presiding judge of the state’s Seventh Judicial Circuit. The order stood for six years until being tossed out last week by the Supreme Court.
“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,” said the Supreme Court’s unanimous opinion, written by Chief Justice David Gilbertson.
Oglala Lakota County, formerly known as Shannon County, is within the Pine Ridge Sioux Reservation in southwest South Dakota. Roughly 96 percent of the county’s 13,829 residents are Native American, according to the most recent estimates from the U.S. Census Bureau.
The county does not have state court facilities and instead contracts with its neighbor to the west, Fall River County, to hold legal proceedings in that county’s courthouse in Hot Springs. Fall River County has an estimated 7,001 residents, 89 percent of whom are white.
Judge Davis’ order appeared to have its roots in a 2001 proclamation by Oglala Sioux Tribe President John Yellow Bird Steele declaring state court actions — such as jury summonses — were unenforceable on the reservation.
When Davis filed his order in 2009, he referenced Yellow Bird Steele’s earlier proclamation. Davis’ order said, in part, that “a state court judge lacks jurisdiction in tribal court to summon and seat the jury panel.”
The challenge to the order arose from a lawsuit filed by an Oglala Lakota County woman, Vera Good Lance, against Black Hills Dialysis LLC and one of its employees, LeEtta Brewer. The lawsuit alleged that Brewer failed to properly monitor Good Lance during a 2011 weigh-in, which caused the elderly Good Lance to fall and suffer injuries.
Good Lance has since died, but the administrator of her estate has continued the lawsuit. As it progressed toward a trial, Good Lance’s attorney, Jon LaFleur, of Rapid City, filed a motion to summon Oglala Lakota County jurors. The judge in the lawsuit, Robert Mandel, denied the motion and ordered that jurors come from Fall River County. Mandel cited Davis’ standing order as support for the decision.
LaFleur and fellow Rapid City attorney Charlie Abourezk appealed to the state Supreme Court, which in February agreed to hear the appeal. Each side’s attorneys filed briefs in April and June, and the Supreme Court heard oral arguments Oct. 6.
The opinion, filed Wednesday, said Judge Davis’ standing order violated South Dakota laws that preserve the right of citizens to serve on juries and allow plaintiffs to have cases tried in the county where their case originates.
“The standing order clearly went beyond the confines of the presiding judge’s statutory authority,” the opinion said.
Furthermore, the opinion said that even if the standing order had been lawful, it was not properly filed. Circuit courts must submit proposed rule changes regarding jury selection to the Supreme Court, and Davis apparently did not do that.
“No indication of such approval occurs anywhere in the record of this case or the records of this Court,” the opinion said.
The opinion also held that the standing order infringed on the Legislature’s role of creating venue law for the courts, and that the circuit court’s actions erroneously placed the burden on Good Lance to justify her request for Oglala Lakota County jurors, rather than on Black Hills Dialysis to justify moving the matter to Fall River County.
Black Hills Dialysis and its attorneys, Gregory Bernard and Catherine Chicoine, both of Rapid City, claimed they would be unable to receive a fair and impartial trial with Oglala Lakota County jurors. They argued that the circuit court lacks jurisdiction to compel tribal members to attend jury duty; therefore, they claimed, the only people who would show up would be those with an interest in the case, which would create an inherent bias.
The Supreme Court’s opinion described those arguments as “speculations” and said they were premature. Black Hills Dialysis cannot claim it has been deprived of its right to a fair and impartial jury, the opinion said, “before the jury panels are selected, the jurors are summoned, and jurors are questioned.”
With the jury matter decided, the Good Lance lawsuit can resume. Attorneys LaFleur and Abourezk told the Journal there may be attempts to settle the case before it goes to trial.
Davis, meanwhile, is still a Seventh Circuit judge but is no longer the presiding judge. Supreme Court Chief Justice David Gilbertson relieved Davis of that position on May 21. At the time, Davis, who could not be reached Monday by the Journal, said the move resulted from a dispute between the two men over space in the Pennington County Courthouse.