SD Citizens for Liberty, Inc. v. Rapid City Area School District 51-4

#29929-aff in pt & vacate-MES
2023 S.D. 57

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

SD CITIZENS FOR LIBERTY, INC.,
TONI E. WEAVER, MARCY M.
MORRISON, BRIAN T. LARSON, and
SAMANTHA C. MCCULLY, Plaintiffs and Appellants,

v.

RAPID CITY AREA SCHOOL
DISTRICT 51-4, Defendant and Appellee.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

****

THE HONORABLE CRAIG A. PFEIFLE
Judge

****

KENNETH E. JASPER
Rapid City, South Dakota Attorney for plaintiffs
and appellants.

EMILY M. SMORAGIEWICZ
KELSEY B. PARKER of
Bangs, McCullen, Butler,
Foye & Simmons, LLP
Rapid City, South Dakota Attorneys for defendant
and appellee.

****

ARGUED
NOVEMBER 8, 2022
SUPPLEMENTAL BRIEFS
RECEIVED
SEPTEMBER 11, 2023
OPINION FILED 11/01/23
#29929

SALTER, Justice

[¶1.] An organized citizens group, along with several individuals,

commenced an action against Rapid City Area School District 51-4 (RCAS) seeking

a declaration that RCAS was acting contrary to South Dakota’s open meeting law

by not allowing public comment at some of its board meetings. After a hearing on

the parties’ cross-motions for summary judgment, the circuit court ruled in favor of

RCAS and denied the group’s summary judgment motion. The court also

determined that it could not review a determination made by a state’s attorney

concerning an alleged violation of a separate open meeting statute. We vacate the

portion of the court’s decision concerning public comment and affirm the court’s

decision to not review the state’s attorney’s determination.

Factual and Procedural History

[¶2.] RCAS is organized as a school corporation under SDCL chapter 13-5

and is governed by the Rapid City Area School Board of Education (the Board). See

SDCL 13-5-1 (defining school districts); SDCL 13-8-1 (defining school board). In

addition to broad statutory authority to operate and administer the schools in their

districts, see SDCL 13-8-39, school boards provide “educational opportunities and

services for all citizens residing within the school district,” SDCL 13-8-1. The Board

serves about 13,000 students and employs around 1,800 community members.

[¶3.] The Board has identified three types of meetings through which it

exercises governance—annual meetings, regular meetings, and special meetings.

The first among them—annual meetings—are mandated for all school boards by

SDCL 13-8-10. The statute requires school boards to consider several broad types of

-1-
#29929

administrative matters at its annual meeting, such as electing officers, selecting

depository institutions and account custodians, and designating a legal newspaper.

SDCL 13-8-10.

[¶4.] School boards may also use the annual meeting to designate the time

for their regular meetings which otherwise must be held “on the second Monday of

each month.” SDCL 13-8-10. For RCAS, the Board usually schedules two regular

meetings each month on the second and fourth Mondays. 1 According to RCAS, the

Board conducts its official business at these regular meetings.

[¶5.] The Board also holds special meetings with recurring frequency.

Special meetings are not required for school boards, but they “may be held upon call

of the president or in the president’s absence by the vice-president, or a majority of

the board members.” Id. The Board generally convenes monthly special meetings

that are self-styled as study sessions and Board retreats. 2

[¶6.] As the name suggests, the study sessions allow the Board to study and

discuss topics before taking official action on them at a regular meeting. The Board

cited, as an example, a particular study session which covered the “10-point grading

scale, Title VI – Office of Indian Education, RCAS Consulting Agreement with

[American Gulf International], and the RCAS Academies and Pathways.”

1. Between 2015 and 2020, the regular meetings were held on the second and
fourth Mondays of every month. At some point in 2021, the Board started
holding regular meetings on the second and fourth Tuesdays of every month.

2. On occasion, the Board has used additional names to refer to special
meetings, such as hybrid meetings or special study sessions.
-2-
#29929

[¶7.] In a similar way, RCAS explains that the Board retreats give members

the “opportunity . . . to meet and discuss the Board’s current and future work at the

District – including planning what matters will be coming before the Board at

regular meetings, what presentations are necessary for the Board’s consideration

and the public’s interest, and to communicate with District Administration about

updates, questions, and concerns.” At times, the Board holds retreats outside

RCAS’s boundaries, including locations in Custer State Park and in Deadwood.

[¶8.] School districts, like RCAS, are considered political subdivisions and

public bodies under SDCL 1-25-12(1) to (2), making them subject to SDCL 1-25-1,

commonly known as South Dakota’s open meeting law. The statute provides that

“[t]he official meetings of the state and its political subdivisions are open to the

public unless a specific law is cited by the state or the political subdivision to close

the official meeting to the public.” SDCL 1-25-1. An official meeting, in turn, is any

meeting at which a quorum of the public body is present and where “official

business or public policy of that public body is discussed or decided[.]” SDCL 1-25-

12(3).

[¶9.] This appeal was originally presented as a controversy involving the

interpretation of the then-existing version of SDCL 1-25-1 (2019) that related to

public comment at official meetings:

The public body shall reserve at every regularly scheduled
official meeting a period for public comment, limited at the
body’s discretion, but not so limited as to provide for no public
comment. At a minimum, public comment shall be allowed at
regularly scheduled official meetings which are designated as
regular meetings by statute, rule, or ordinance.

(Emphasis added.)

-3-
#29929

[¶10.] Along with provisions of state law, the Board is governed by its own

district policies, one of which is entitled Public Participation at Board Meetings, and

states:

All regular and special meetings of the [B]oard will be open to
the public. At meetings a specific time period will be designated
as “Open Forum.” A time limit may be set both for individual
speakers and for the length of the Open Forum time period. . . .
Public comments and questions at Open Forum may deal with
any topic related to public education. Public comments on
agenda items will be encouraged by the [B]oard president.
Comments at special meetings must be related to the subject of
the meeting.

[¶11.] The Board reserves what the parties refer to as an “open forum” period

for public comment at its regular meetings held twice each month. But the Board

has not always done so for its special meetings.

[¶12.] From July 2018 through April 2020, the Board included an open forum

period at all special meetings designated as study sessions, though it did not allow

open forum at special meetings designated as retreats. However, on April 13, 2020,

the Board did not allow for an open forum period at a special meeting study session.

This practice became more frequent with the election of a new Board president, and

between July 27, 2020, and June 28, 2021, public comment was not permitted at

twenty-two out of twenty-four special meetings.

[¶13.] This action arose as an effort to use the declaratory judgment remedy

to determine whether RCAS has a statutory obligation to afford an opportunity for

public comment at its special meetings. The plaintiffs are SD Citizens for Liberty

-4-
#29929

(CLF), Inc., Tonchi Weaver, Samantha C. McCully, Marcy M. Morrison, and Brian

T. Larson (collectively, Citizens). 3

[¶14.] In a separate, but somewhat related, development, Weaver alleged a

criminal open meeting law violation against the Board in November 2020.

According to Weaver, the Board had convened in executive session during a

November 12, 2020 study-session special meeting to screen eleven applicants for a

vacant Board seat. 4 Weaver alleged the Board had taken official action by selecting

the new member during its executive session without reconvening and acting to

appoint the new member during an open meeting. As evidence, Weaver pointed to

letters—issued by the Board after the executive session but before official action at

an open meeting—advising unsuccessful applicants that another person had been

appointed.

[¶15.] Pennington County State’s Attorney Mark Vargo investigated

Weaver’s allegations but did not find evidence of a statutory violation. In a

February 2021 letter to Weaver, Vargo stated that any vote taken on November 12

3. In their amended complaint, the plaintiffs each identify an interest in the
public comment issue. For example, CFL is described as a non-profit
corporation with a particular interest in “providing public comment at open
official meetings of governmental bodies and political subdivisions[.]” Weaver
is CFL’s lobbyist and a grandmother of RCAS students. McCully, Morrison,
and Larson are all parents of RCAS students.

4. Executive or closed meetings are authorized for a number of reasons
specifically enumerated in SDCL 1-25-2(1), including “[d]iscussing the
qualifications, competence, performance, character or fitness of any public
officer or employee or prospective public officer or employee.” The statute
also requires that “any official action concerning the matters [addressed in
executive session] shall be made at an open official meeting” and makes a
violation a Class 2 misdemeanor. SDCL 1-25-2.
-5-
#29929

was a “‘straw poll’ or informal vote” and that the vacant Board seat was filled

through a vote that occurred during an open meeting on November 16.

Additionally, Vargo determined that sending letters to the other applicants was a

“courtesy” not an “official action” because, at that point, the “ultimate vote had not

occurred, and the outcome could still change.” Until the initiation of this suit, more

than four months later, Weaver pursued no further action on the matter.

[¶16.] The question of whether public comment was permitted at special

meetings lingered and was a source of discussion at Board meetings in the following

months. During a June 2, 2021 study session, a Board member successfully sought,

over opposition, to add a period of public comment to the agenda, arguing there was

no real distinction between regular and special meetings, given the frequency of the

latter.

[¶17.] Several weeks later, Citizens commenced this action against RCAS,

requesting one principal type of declaratory relief: a declaration regarding the

correct interpretation of the term “regularly scheduled official meeting,” which, at

the time, triggered SDCL 1-25-1’s public comment requirement. In Citizens’ view,

the term described any official meeting for which notice was provided under SDCL

1-25-1.1, no matter how the meeting is denominated by the Board.

[¶18.] In its answer, RCAS denied that SDCL 1-25-1 required the Board to

allow public comment at its special meetings. In so doing, RCAS equated the term

“regularly scheduled official meeting”—for which SDCL 1-25-1 required public

comment—with the term “regular meeting” used in the annual meeting statute for

school boards. See SDCL 13-8-10. Based upon this fusion of statutory terms, RCAS

-6-
#29929

claimed that the Board’s special meetings, under any name, were not only mutually

exclusive with regular meetings, but they also could not be considered regularly

scheduled official meetings.

[¶19.] The parties filed cross-motions for summary judgment. In its brief to

the circuit court, Citizens claimed that the term—regularly scheduled official

meeting—as used in SDCL 1-25-1 was ambiguous. Nevertheless, Citizens argued,

by considering the statute’s legislative history, the court could discern that public

participation was required at all official meetings scheduled in a regular manner,

which it asserted included any meeting that was properly noticed under the

provisions of SDCL 1-25-1.1 and at which a quorum was present.

[¶20.] Citizens also cited RCAS’s district policy requiring an “Open Forum” at

“[a]ll regular and special meetings” as part of an effort to strengthen its SDCL 1-25-

1 argument. Citizens’ amended complaint did not allege a separate basis for

declaratory relief based on the district policy, and Citizens’ summary judgment brief

simply stated it “was asking this court to require [the Board] to follow their own

policies and comply with the spirit and intent of Chapter 1-25[.]”

[¶21.] Also not mentioned in Citizens’ amended complaint was Weaver’s open

meeting violation claim. However, in its summary judgment brief, Citizens asked

the court to require the Board “to also follow [SDCL] 1-25-2[,]” disputing Vargo’s no-

violation finding.

[¶22.] In contrast, RCAS offered the view that “regularly scheduled official

meeting” as used in SDCL 1-25-1 was plain and unambiguous. In RCAS’s opinion,

the phrase was identical to SDCL 13-8-10’s “regular meeting” term and meant the

-7-
#29929

Legislature did not intend to require school boards to allow public comment at

special meetings. RCAS acknowledged that Citizens’ argument would be

meritorious under the previous version of SDCL 1-25-1, which required public

comment at all “official meetings,” but claimed Citizens could not prevail under the

current version of the statute.

[¶23.] As to Citizens’ suggestion that RCAS is violating its own district policy

by not allowing an open forum period at regular and special meetings, RCAS

responded in two ways. First, it cited the provision of its district policy that allowed

the Board to regulate the length of time allotted for open forum, arguing the Board

could permissibly limit the open forum time “so as not to allow Open Forum at

all[.]” Second, RCAS claimed Citizens’ only option was to pursue an administrative

remedy by filing a complaint with RCAS alleging it was violating its own policies

and then appealing any adverse decision to circuit court. See SDCL 13-46-1

(authorizing an aggrieved party to appeal a decision by a school board to circuit

court). 5

[¶24.] In an oral ruling, the circuit court accepted RCAS’s interpretation of

SDCL 1-25-1 and granted its motion for summary judgment while simultaneously

denying Citizens’ corresponding motion. The court offered its view that the “statute

was unambiguous,” though it is unclear whether the court was referring to SDCL

13-8-10 exclusively or SDCL 1-25-1 as well:

I think SDCL 13-8-10 allows the Board to set those regularly
scheduled official meetings; that those regularly scheduled
official meetings are those at which public comment is required.
The Rapid City Area School District offers public comment at

5. RCAS also suggested that Citizens were not aggrieved parties.
-8-
#29929

those regularly scheduled official meetings. And other meetings,
while they may be official and require the ability for the public
to have that meeting available to them for purposes of review,
are not meetings at which the Board is required to offer public
comment based upon my reading of the statutes.

[¶25.] The circuit court also ruled on two other, more peripheral issues.

Referring to the “specter” of an open meeting violation, the court stated it did not

view “the Declaratory Judgment statutes [as] the appropriate remedy for . . .

allegations . . . concerning open meetings.” The court noted the statutory procedure

for pursuing an open meeting violation allegation contemplates a role for state’s

attorneys and for the South Dakota Open Meetings Commission, but not the court.

See SDCL 1-25-6 to -7 (establishing the procedure for determining allegations of

open meeting law violations).

[¶26.] In addition, the circuit court rejected RCAS’s argument that Citizens

could not obtain an interpretation of SDCL 1-25-1 as a request for declaratory relief

but, instead, was relegated to an administrative complaint to the Board and,

ultimately, an appeal under SDCL 13-46-1. The court noted that RCAS’s argument

had “some allure to it,” but the procedure outlined by RCAS “doesn’t preclude the

plaintiffs . . . from requesting a Declaratory Judgment as to the meaning of

statutes[.]”

[¶27.] Citizens appealed and have argued that the circuit court erred when it

determined that a “regularly scheduled official meeting” under SDCL 1-25-1 is

unambiguously identical to a “regular meeting” for a school board under SDCL 13-

8-10. Citizens also claim that the circuit court erred when it denied their request

-9-
#29929

for a declaration that the Board violated the open meeting provisions of SDCL 1-25-

2. 6 The parties submitted appellate briefs and later presented oral argument.

[¶28.] After this appeal was initially submitted, we learned through our own

research that SDCL 1-25-1 had been amended by the 2023 Legislature in a way

that directly implicated the principal issue presented. As the following excerpt

illustrates, the 2023 amendments eliminated the “regularly scheduled official

meeting” phrase which is at the heart of this case in favor of the statutorily defined

term, “official meeting:”

The public body shall reserve at every regularly scheduled
official meeting a period for public comment, limited at the
public body’s discretion as to the time allowed for each topic and
the total time allowed for public comment, but not so limited as
to provide for no public comment. At a minimum, public
comment shall be allowed at regularly scheduled official
meetings which are designated as regular meetings by statute,
rule, or ordinance.

2023 S.D. Sess. Laws ch. 5 (SB 162) (additions underlined, deletions in strike

through).

[¶29.] These amendments took effect on July 1, 2023. And in view of their

apparent impact upon the SDCL 1-25-1 statutory interpretation issue, we ordered

the parties to submit simultaneous supplemental briefs addressing whether the

6. Citizens also claim that the circuit court erred by not providing a separate
ruling on the interpretation and application of RCAS’s policies. However, the
issue is not properly before us because it was not presented to the circuit
court or pled in Citizens’ amended complaint. Citizens’ issue regarding the
alleged SDCL 1-25-2 open meeting violation was also not pled, but the circuit
court perceived the “specter” of the allegation and ruled on the merits of the
claim, allowing us to conduct meaningful review of the court’s decision.
-10-
#29929

declaratory relief sought relating to SDCL 1-25-1, as it existed prior to July 1, 2023,

had become moot.

[¶30.] For its part, the Board acknowledges that the SDCL 1-25-1 issue “has

become moot because of the legislative amendment to the statute.” The Board

asserts that we should now dismiss the appeal, which we interpret to mean

partially dismiss the appeal because the statute giving rise to Citizens’ open

meeting violation issue was not amended during the Legislature’s 2023 session.

[¶31.] In their combined response, Citizens argue that the 2023 amendments

did not render the SDCL 1-25-1 controversy moot. Although the Legislature had

eliminated the phrase “regularly scheduled official meeting,” Citizens claim the

word “regular” appears in other statutes relating to school board meetings and

contend that we should divert from the SDCL 1-25-1 issue presented and interpret

the text of these other statutes.

[¶32.] Alternatively, Citizens argue that the issue is subject to two exceptions

to the mootness doctrine. They claim the statutory interpretation issue is capable of

repetition yet evading review because the Legislature could amend SDCL 1-25-1 in

a different way in its upcoming 2024 session. Citizens also claim we could review

the otherwise moot issue as a matter of general public importance.

Analysis and Decision

Mootness Prior to a Judicial Decision

[¶33.] An appeal submitted for decision but not yet decided becomes moot

when “there has been a change of circumstances or the occurrence of an event by

which the actual controversy ceases and it becomes impossible for the appellate

-11-
#29929

court to grant effectual relief.” State v. Humpal, 2017 S.D. 82, ¶ 9, 905 N.W.2d 117,

120 (quoting Rapid City J. v. Seventh Jud. Cir. Ct., 283 N.W.2d 563, 565 (S.D.

1979)). A live controversy is a component of justiciability, constraining courts from

offering solutions which are in search of problems. See Metro. Life Ins. Co. v.

Kinsman, 2008 S.D. 24, ¶ 10, 747 N.W.2d 653, 658 (“We do not answer hypothetical

questions or dispense advisory opinions.” (citation omitted)).

[¶34.] A controversy that depends upon the application of a statute can

become moot through intervening amendments that change the nature of the

controversy from actual to academic. For instance, in Phelps-Roper v. Koster, the

Eighth Circuit Court of Appeals determined a plaintiff’s due process challenge to a

Missouri statutory restriction upon demonstrations at funerals became moot when

the state legislature repealed the law. 815 F.3d 393, 397–98 (8th Cir. 2016).

[¶35.] We cited Phelps-Roper with approval in Skjonsberg v. Menard, Inc.,

and adopted its view that the proper disposition for a case which becomes moot on

appeal is to vacate the trial court’s ruling and “remand with instructions to

dismiss.” 2019 S.D. 6, ¶ 10, 922 N.W.2d 784, 788. The vacatur rule is an equitable

one that traces its origin to the United States Supreme Court’s decision in United

States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S. Ct. 104, 95 L. Ed. 36 (1950):

The point of vacatur is to prevent an unreviewable decision from
spawning any legal consequences, so that no party is harmed by
what we have called a “preliminary” adjudication. . . . When
happenstance prevents that review from occurring, the normal
rule should apply: Vacatur then rightly strips the decision below
of its binding effect and clears the path for future relitigation[.]

Camreta v. Greene, 563 U.S. 692, 712–13, 131 S. Ct. 2020, 2035, 179 L. Ed. 2d 1118

(2011) (cleaned up) (discussing Munsingwear).

-12-
#29929

[¶36.] Here, the 2023 amendments rendered the SDCL 1-25-1 issue moot. By

removing the “regularly scheduled” text from the statute in 2023, the Legislature

essentially returned the statute to its 2018 version by requiring public comment at

all official meetings, which, parenthetically, essentially codified Citizens’ argument

in this appeal. 7 There is no longer a need to review the phrase “regularly scheduled

official meeting,” and a decision interpreting the pre-2023 version of SDCL 1-25-1

will not provide effective relief because we would not declare the parties’ current

“rights, status, or other legal relations . . . affected by a statute[.]” SDCL 21-24-3.

[¶37.] Citizens’ argument that the case is not moot because the term

“regular” appears in other statutes—not SDCL 1-25-1—implicates the sort of

hypothetical or advisory opinions our cases counsel against. Accepting Citizens’

invitation to interpret a different term in different statutes qualitatively changes

the principal issue presented in this appeal.

[¶38.] The meaning of a regular meeting, at least in the context of the Board’s

regular meetings, was only significant to the interpretation of SDCL 1-25-1 because

the circuit court declared that a regular meeting was the same as a “regularly

scheduled official meeting.” But whether the use of the adjective “regular” in SDCL

7. The Legislature’s 2019 amendment which added “regularly scheduled” to the
existing term “official meeting” was described during a hearing before the
Senate State Affairs Committee as a non-substantive change—a clarifying
bill “that doesn’t do anything.” Senate State of Affairs Committee Hearing on
S. 91, 2019 Leg., 94th Reg. Sess. 4–5, 10.
-13-
#29929

13-8-10 meant the same thing as the adjective “regularly” in SDCL 1-25-1 is an

unnecessary inquiry at this point. 8

[¶39.] Nor is there sufficient justification to apply either of the two exceptions

to the mootness doctrine, as Citizens suggest—the capable-of-repetition-yet-

evading-review and general-public-interest exceptions. As to both, Citizens

acknowledge it is within our discretion to review a moot issue, or not, and offer a

restated version of the principal argument against mootness—i.e., the “need” to

interpret “regular” in other statutes. Beyond this, Citizens argue that the

Legislature might again act to change SDCL 1-25-1 in its upcoming session. But it

seems highly speculative to hazard a guess as to whether the statute would be

amended at all and, if it was, what the amended language would be.

[¶40.] Under the circumstances, we conclude that there is no longer a live

controversy relating to the parties’ differing interpretations of SDCL 1-25-1 given

the Legislature’s 2023 amendments. There is, therefore, no need to address the

merits of the circuit court’s decision, which is accordingly vacated.

Open Meeting Law Violation

[¶41.] “We review a circuit court’s entry of summary judgment under the de

novo standard of review.” Healy Ranch P’ship v. Mines, 2022 S.D. 44, ¶ 45, 978

N.W.2d 768, 780 (quoting Lammers v. State ex rel. Dep’t of Game, Fish & Parks,

2019 S.D. 44, ¶ 9, 932 N.W.2d 129, 132). “We will affirm a circuit court’s ‘grant of a

8. Citizens also identify the use of “regular” (as in “regular meeting”) in other
statutes, like SDCL 1-25-1.1, SDCL 1-25-1.3, and SDCL 1-25-3, but these
statutes relate to notice for a meeting, the agenda, and the minutes—not
public comment.
-14-
#29929

motion for summary judgment when no genuine issues of material fact exist, and

the legal questions have been correctly decided.’” Ries v. JM Custom Homes, LLC,

2022 S.D. 52, ¶ 14, 980 N.W.2d 217, 222 (quoting Harvieux v. Progressive N. Ins.

Co., 2018 S.D. 52, ¶ 9, 915 N.W.2d 697, 700). Issues of statutory interpretation

present particular questions of law which we also review de novo. Thom v. Barnett,

2021 S.D. 65, ¶ 13, 967 N.W.2d 261, 267 (citing Jans v. S.D. Dep’t of Pub. Safety,

2021 S.D. 51, ¶ 10, 964 N.W.2d 749, 753).

[¶42.] As part of their motion for summary judgment, Citizens also sought a

declaration that RCAS violated SDCL 1-25-2 under the theory that the Board took

official action during an executive session by filling a board vacancy and sending

letters to the ten unsuccessful applicants. The circuit court denied Citizens’ request

to declare an open meeting violation stating, “I don’t think that the Declaratory

Judgment statutes are the appropriate remedy for purposes of allegations of

directions concerning open meetings.” The circuit court further concluded that

“[t]he statutory procedure is clear[.]” A complaint “needs to proceed through the

office of the State’s Attorney and then through the South Dakota Opening Meetings

Commission.” We agree with the circuit court.

[¶43.] “An appeal from the action of public officers or boards to the circuit

court must be invoked in the manner prescribed by statute.” Middle Creek Sch.

Dist. v. Butte Cnty. Bd. of Educ., 83 S.D. 107, 111, 155 N.W.2d 450, 452 (1968)

(citation omitted). SDCL chapter 1-25, as presently written, does not provide a

route for judicial review of a state’s attorney’s determination that a complaint has

no merit.

-15-
#29929

If a complaint alleging a violation of this chapter is made
pursuant to § 23A-2-1, the state’s attorney shall take one of the
following actions:
(1) Prosecute the case pursuant to Title 23A;
(2) Determine that there is no merit to prosecuting the
case. Upon doing so, the state’s attorney shall send a copy
of the complaint and any investigation file to the attorney
general. The attorney general shall use the information
for statistical purposes and may publish abstracts of such
information, including the name of the government body
involved for purposes of public education; or
(3) Send the complaint and any investigation file to the
South Dakota Open Meetings Commission for further
action.

SDCL 1-25-6.

[¶44.] Because the statute does not prescribe a manner through which a

complainant may seek review of the state’s attorney’s decision, the circuit court was

without jurisdiction to enter judgment declaring an open meeting violation.

Consequently, this Court also lacks jurisdiction to grant Citizens’ requested relief.

See Middle Creek Sch. Dist., 83 S.D. at 111, 155 N.W.2d at 452 (“If a circuit court is

without jurisdiction of the subject matter in litigation, this [C]ourt does not acquire

jurisdiction thereof by appeal to it from the final order or judgment of the circuit

court.”). Notwithstanding the circuit court’s lack of jurisdiction, this Court acquires

jurisdiction sufficient to determine the “lack of jurisdiction below.” Beadle Cnty. v.

Bd. of Cnty. Comm’rs, 62 S.D. 86, 88, 251 N.W. 816, 817 (1933).

Conclusion

[¶45.] We hold that the issue regarding the interpretation of “regularly

scheduled official meeting” as used in SDCL 1-25-1 is moot and, therefore,

nonjusticiable. Accordingly, we vacate the circuit court’s decision interpreting the

statute. We also determine that SDCL chapter 1-25 does not confer jurisdiction

-16-
#29929

upon circuit courts to review the actions of a state’s attorney taken under SDCL 1-

25-6. Thus, we affirm the circuit court’s decision to not review the State’s

Attorney’s determination.

[¶46.] JENSEN, Chief Justice, and DEVANEY and MYREN, Justices, and

WILBUR, Retired Justice, concur.

[¶47.] WILBUR, Retired Justice, sitting for KERN, Justice, who deemed

herself disqualified and did not participate.

-17-