STATE OF SOUTH DAKOTA IN THE CIRCUIT COURT
COUNTY OF MARSHALL FIFTH JUDICIAL CIRCUIT
DAVID L. WEGLEITNER,
Plaintiff,
-vs-
BRIAN LEE SATTLER and TOWN OF
LAKE CITY, a public corporation,
incorporated under the laws of South Dakota,
(d/b/a LAKE CITY MUNICIPAL BAR),
Defendants.

Civ. 97-0007

MEMORANDUM DECISION

Plaintiff brought suit against Defendants for injuries arising out of an automobile accident. Defendant Town of Lake City (Town) has moved for summary judgment.

FACTS

Plaintiff is a deputy sheriff employed by Marshall County. On March 10, 1996, while he was on duty and engaged in a traffic stop on Highway 25, Defendant Sattler collided with Plaintiff and his patrol vehicle. Sattler had been drinking in the Lake City Murucipal Bar (Bar) prior to the collision. Plaintiff alleges that Bar served alcohol to Sattler when Sattler was obviously intoxicated and that, as a direct and proximate result, Sattler operated his vehicle negligently and struck Plaintiff. Town answered this allegation and cross-claimed against Sattler, and thereafter moved for summary judgment. Town states, inter alia, that Plaintiff's claim against it is barred by SDCL 35-4-78 and SDCL 35-11-1. Plaintiff responded by asserting that those two statutes are unconstitutional.

DECISION

To succeed on a motion for summary judgment, the moving party must demonstrate the absence of any genuine issue of material fact and show entitlement to judgment on the merits as a matter of law. Wildeboer V. South Dakota Junior Chamber of Commerce, 1997 S.D. 33, ¶ 9 (citation omitted). The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. Id. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Id While summary judgment is generally not appropriate in negligence cases because the standard of the reasonable person must be applied to conflicting testimony, it is appropriate when the evidence is such that reasonable people can draw but one conclusion from the facts and inferences. Id. at ¶ 10.

With respect to Plaintiff's constitutional challenge, there is a strong presumption that the laws enacted by the legislature are constitutional and this presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Green V. Siegel, Barnett & Schutz, 557 N.W.2d 396, 398 (S.D. 1996) (citation omitted). The party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision. Id

Defendant Town's defense is predicated upon SDCL 35-4-78 and SDCL 35-11-1. Plaintiff contends these statutes violate his rights under Article VI, § 20 of the South Dakota (fn 1)

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fn 1 The Attorney General's office has been duly notified of Plaintiff's challenge and has chosen not to intervene in this matter.

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Constitution, the "open courts" provision, and are thus unconstitutional. SDCL 35-4-78 provides:

No licensee may sell any alcoholic beverage:

1. To any person under the age of twenty-one years; or

2. To any person who is obviously intoxicated at the time. A violation of this section is a Class 1 misdemeanor. However, no licensee is civilly liable to any injured person or his estate for any injury suffered, including any action for wrongful death, or property damage suffered because of the intoxication of any person due to the sale of any alcoholic beverage in violation of the provisions of this section.

SDCL 35-11-1 provides:

The Legislature finds that the consumption of alcoholic beverages, rather than the serving of alcoholic beverages, is the proximate cause of any injury inflicted upon another by an intoxicated person. Therefore, the rule in Walz v. City of Hudson, 327 N.W.2d 120 (S.D. 1982) is hereby abrogated.

Article VI, § 20 of the South Dakota Constitution provides:

All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.

SDCL 20-9-1 is a simple codification of the common law of negligence.(fn 2) In re Certif of Questions ofLaw (Knowles V. United States), 1996 S.D. 10, ¶ 21, 544 N.W.2d 183, 188 (citations omitted). In South Dakota, the common law continues to be in force, except where it conflicts with federal or state constitutions and laws. (fn 3) In Wildeboer V. South Dakota Junior

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fn 2. SDCL 20-9-1 provides:

Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.

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Chamber of Commerce, 1997 S.D. 33, the Supreme Court had occasion to again consider whether, based on SDCL 20-9-1, it should recognize a cause of action for common law negligence against liquor licensees who sell alcohol to individuals in violation of SDCL 35-4-78, despite the fact that SDCL 35-11-1 and the last sentence of SDCL 35-4-78 purport to preclude the imposition of civil liability on liquor licensees. (fn4) The Court stated that it is a rule of statutory construction that general statutes such as SDCL 20-9-1 must yield to specific statutes if the two are not consistent. 1997 S.D. 33 at ¶ 24. The Court then examined whether SDCL 20-9-1 was consistent with SDCL 35-4-78 and SDCL 35-11-1, and held that the latter statutes were not consistent with the former. According to the Court, SDCL 35-4-78 and 35-11-1 represented:

the Legislature's policy decision that no civil liability will attach to a bar for the furnishing of alcoholic beverages to a person who subsequently causes an injury to a third party. As we stated in Wa/z, "[i]f the Legislature does not concur with our application of SDCL 35-4-78(2) as now announced, it is the prerogative of the Legislature to so assert." Unfortunately for Wildeboers, the Legislature chose to exercise its prerogative by amending SDCL 35-4-78 and enacting SDCL 35-11-1 to preclude recovery in this case.

Wildeboer, 1997 S.D. 33 at ¶ 30 (citation omitted). Accordingly, the Court did not recognize the requested common law cause of action sounding in negligence.

Unlike the situation in this case, no constitutional challenge was made in Wildeboer. (fn5) 1997 S.D. 33 at ¶ 25. Additionally, the Wildeboer Court did not specifically discuss whether the reasoning of Justice Sabers from issues 2 and 4 in Baatz V. Arrow Bar, 426 N.W.2d 298 (S.D. 1988) was apposite. Justice Sabers' opinion on issue 2 was based on the rule enunciated in Walz.

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fn 4. The Court observed that the subject of liability for the furnishing of alcohol to tortfeasors has been before the Count numerous times, citing Grffin V. Sebek, 90 S.D. 692, 245 N.W.2d 481(1976); Wa(z V. City ofHudson, 327 N.W.2d 120 (S.D. 1982); and Baatz v~ Arrow Bar, 426 N.W.2d 298 (S.D. 1988).

fn 5. The Court noted that a majority of the justices in Baatz V. Arrow Bar, 426 N.W.2d 298 (S.D. 1988) failed to fmd the statutes unconstitutional. 1997 S.D 33 at ¶ 25.

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V. City of Hudson, 327 N.W.2d 120 (S.D. 1982). According to Walz, SDCL 35-4-78 is a statute enacted to protect individuals from the risk of being killed or injured "as a result of the drunkenness to which the particular sale of alcoholic liquor contributes." 327 N.W.2d at 122-23. SDCL 35-4-78 thus creates a "standard of care or conduct to which the reasonably prudent person is held" and "failure to follow the statute involved constitutes a breach of the legal duty imposed and fixed by such statute." Id at 122. "[T]he violator of a statute is then negligent as a matter of law." Id. In Baatz, Justice Sabers wrote that "despite the arnendment, the statute continues to provide a standard of care or duty, the breach of which continues to give rise to an action for injuries against a wrongdoer." 426 N.W.2d at 303. According to Justice Sabers, neither the amendment to SDCL 35-4-78 nor the enactment of SDCL 35-11-1 operated to abrogate the rule in Walz. (fn 6) Justice Sabers' opinion on issue 4 reached the same result, but was based on the open courts provision. Id at 303-04. With the foregoing discussion in mind, this Court must consider whether, based upon the most recent pronouncements by the South Dakota Supreme Court, SDCL 35-4-78 and SDCL 35-11-1 are unconstitutional as violative of Article VI, § 20 of the South Dakota.

The open courts provision is a guarantee that for such wrongs as are recognized by the laws of the land the courts shall be open and afford a remedy. (fn 7) Green, 557 N.W.2d at 399-400.

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fn 6. This conclusion necessarily means that the legislature cannot enact a criminal statute which serves to protect individuals from certain conduct and, at the same time, limit any civil liability which may attach based on violation of the criminal law. No authority is cited for this proposition.

fn 7. SDCL 1-1-23 states that the "laws of the land" or the "will of the sovereign power" is expressed:

5

(citations omitted). The provision ensures that where a cause of action is implied or exists at common law without statutory abrogation, a plaintiff has a right to litigate and the courts will fashion a remedy. Id at 400; Kyllo V. Panzer, 535 N.W.2d 896, 900 (S.D. 1995) ("the intent behind constitutional 'open courts' provisions is 'to preserve the common-law right of action for injury to person or property"'). Article VI, § 20 thus provides a right of access to the courts for causes of action recognized by common law or statute, it does not create rights of action. Green, 557 N.W.2d at 400 (citations omitted). (fn 8)

There are at least two reasons, based on the foregoing, why this Court is unable to declare the statutes unconstitutional on the basis of the open courts provision. First, although the common law of negligence existed well before the South Dakota Constitution, Kyllo, 535 N.W.2d at 903, injured third parties did not traditionally and do not today have a common law cause of action against liquor licensees who sold alcohol to tortfeasors. Griffin V. Sebek; 245 N.W.2d 481, 482-83 (S.D. 1976), rev 'd on other grounds, Wa/z V. City of Hudson, 327 N.W.2d 120. Thus the open courts provision provides no remedy. Second, even if a common law cause of action was created after adoption of the South Dakota Constitution, Walz, 327 N.W.2d 120, the Supreme Court has stated that the legislature is free to abrogate a judicially-created cause of action. Id at 122; Green, 557 N.W.2d at 400 and 403 ("where a cause of action is implied or exists

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fn 7. By the ordinances of authorized subordinate bodies;

fn 8. Rules of practice and procedure prescribed by counts or adopted by departments, commissions, boards, officers of the state or its subdivisions pursuant to authority so to do.

8. Another interpretation given to open counts provisions holds that such constitutional provisions incorporated all common law rights established prior to the enactment of the South Dakota Constitution, and although the legislature may change the remedy or the form of procedure, attach conditions precedent to its exercises, or perhaps abolish and substitute new remedies, it cannot deny such a remedy entirely. Kyllo, 535 N.W.2d at 901 (citing Mattson V. City of Astoria, 65 P.1066 (Ore. 1901)). A more narrow interpretation given to open courts provisions is that they simply prohibited the selling of justice or requiring fees or fines for a judicial officer to act. Green, 557 N.W.2d at 401 (citation omitted).

6

at common law without statutory abrogation, a plaintiff has a right to litigate and the courts will fashion a remedy" and "The legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not") (emphasis supplied). Although the legislature may be unable to abrogate causes of action which existed at the common law before adoption of the state Constitution, it is certainly free to abrogate judicially-created causes of action which did not exist as of the adoption of the Constitution. (fn 9) The South Dakota Supreme Court recognized a cause of action in Walz, but the Legislature overruled that decision, as it had the right to do. 327 N.W.2d at 122. The Legislature made its intent clear when in amended SDCL 35-4-78 to state, "no licensee is civilly liable to any injured person or his estate for any injury suffered, including any action for wrongful death, or property damage suffered because of the intoxication of any person due to the sale of any alcoholic beverage in violation of the provisions of this section." This Court cannot now use Article VI, § 20 to create a cause of action for Plaintiffs by declaring SDCL 35-4-78 unconstitutional. (fn 10)

The Constitution of South Dakota is a limitation upon the lawmaking powers of the state legislature and the legislature may enact any law not expressly or inferentially prohibited by the state or federal constitutions. Green, 557 N.W.2d at 401 (citation omitted). In order to determine that an act is unconstitutional, there must be some provision that prohibits the

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fn 9. As the United States Supreme Count has ruled, "a person has no property, no vested interest, in any rule of the common law." Munn V. illinois, 94 U.S. 113, 134, 24 L. Ed. 77, 87 (1876). "'Open courts' is not a guarantee that all injured persons will receive hill compensation or that remedies once existent will always remain so. Nor does this provision assure that a substantive cause of action once recognized in the common law will remain immune from legislative or judicial limitation or elimination. Otherwise, the state of tont law would remain frozen in the nineteenth century, immutable and eventually, obsolete." Matter of Certif of Questions ofLaw, 1996 S.D. 10, ¶ 10, 544 N.W.2d at 203.

fn 10. In Baatz, Justice Sabers stated that Article VI, section 20 did prohibit the Legislature's attempt to abrogate Walz. 426 N.W.2d at 302-03. The opinion of Justice Sabers in Baatz on issues 2 and 4, however, did not create binding precedent since only Justice Henderson concurred.

7

enactment of a statute rather than one which grants such power. Id. Article VI, § 20 provides protection only for recognized legal rights. (fn 11) It is not a guarantee that all injured persons will receive full compensation. Id. at 403. As the Court stated in Green, "[wle sympathize with those who find the statute unjust, but we are bound to exercise judicial restraint... and not substitute our judgment and wisdom for that of the legislature." 557 N.W.2d at 405. However unwise this Court may feel the Legislature's choice has been, it is constrained from acting in this case by the Constitution and by the separation of powers doctrine. The Supreme Court has long acknowledged the Legislature's ability to exercise its privilege of abrogating rules created by judicial fiat. The most pertinent examples, those expressed in Green and Walz, have already been discussed. Another example is found in Cimarron Ins. Co. V. Croyle, 479 N.W.2d 881 (S.D. 1992), wherein the Supreme Court pronounced "household exclusions" in automobile liability policies invalid as violative of public policy. The Legislature immediately responded by amending South Dakota's financial responsibility law to allow insurers to issue motor vehicle liability policies with resident family member exclusions. After the legislative amendment, subsequent efforts to have "household exclusions" invalid on grounds of public policy have not succeeded. See, e.g., DeSmet Ins. Co. of South Dakota V. Gibson, 552 N.W.2d 98 (S.D. 1996). The reason for this is simple and compelling. Courts have no legislative authority and should avoid judicial legislation, a usurpation of legislative powers, or any entry into the legislative field. Cimarron, 479 N.W.2d at 885 (citation omitted). Whatever its opinion may be as to the

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fn 11. As it was not pled, the Count interposes no opinion regarding whether the Due Process Clause requires a quid pro quo or reasonable substitute remedy when the legislature statutorily abrogates a count-created or common law remedy. See Matter ofCertif of Quesuons ofLaw, 544 N.W.2d at 189; Green, 557 N.W.2d at 403; and Duke Power Co. V. Carolina EnvIl. Study Group, 438 U.S. 59, 57 L. Ed.2d 595, 620 n. 32 and accompanying text, 98 S. Ct. 2620 (1978). The constitutionality of SDCL 354-78 and SDCL 35-11-I were not challenged on due process grounds and the Count is reluctant to consider any such challenge sua sponte since the Attorney General's decision not to intervene was based on the arguments made by counsel for both parties.

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wisdom of a statute or the necessity for further legislation, the duty of the court is to apply the

law objectively as found, and not to revise it. (fn 12) Id. The Court finds nothing palpably

unconstitutional about the Legislature's choice to hold one criminally liable for the violation of a

statute and, at the same time, declare that violation of the statute cannot be the basis of civil

liability.

Defendant Town's motion for summary judgment is granted.

Dated this 6th day of June, 1997, at Aberdeeen, South Dakota.

BY THE COURT:

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fn 12. Justice Wollman spoke of the need for judicial restraint in his dissenting opinion in Daugaardv. Baltic Co-op. Bldg Supply Ass 'n, 349 N.W 2d 419, 428 (1984):

fn 13. The Legislature does something similar on a regular basis with nolo contendere pleas, see SDCL 19-12-12, and with seat belt violators, see SDCL 32-38-4.