#28537-dismiss-SLZ
2018 S.D. 76

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                ****


AMBER RENEE WEGNER,                      Petitioner and Appellee,

     v.

SCOTT W. SIEMERS,                        Respondent and Appellant.


                                ****


                 APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                    CLAY COUNTY, SOUTH DAKOTA

                                ****

                     THE HONORABLE KASEY SORENSEN
                                 Judge

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CREIGHTON A. THURMAN                     Attorney for respondent
Yankton, South Dakota                    and appellant.


AMBER RENEE WEGNER
Beresford, South Dakota                  Pro se petitioner.

                                ****

                                         CONSIDERED ON BRIEFS ON
                                         OCTOBER 1, 2018
                                         OPINION FILED 11/07/18
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ZINTER, Justice1

[¶1.]         A defendant appeals a protection order entered in magistrate court.

Because this Court does not have appellate jurisdiction to consider this direct

appeal from magistrate court, we dismiss.

                             Facts and Procedural History

[¶2.]         In December 2017, Amber Wegner sought a protection order against

Scott Siemers. At the hearing in magistrate court, Wegner appeared pro se, and

Siemers was represented by counsel. After considering both parties’ testimony, the

court found Siemers “[w]illfully, maliciously, or repeatedly harassed [Wegner] by

means of any verbal, electronic, digital media, mechanical, telegraphic, or written

communication.” See SDCL 22-19A-1(3) (defining stalking). The court issued an

order of protection effective for three years. Thereafter, counsel asked, “I would

assume, since this is in magistrate court, that the appeal chain is circuit court and

then up the line?” The court replied, “Correct.”

[¶3.]         Siemers did not appeal the magistrate court’s decision to the circuit

court; he has appealed to this Court. He contends the magistrate court clearly erred

and abused its discretion in granting the protection order.

                                        Decision

[¶4.]         “This Court has only such appellate jurisdiction as may be provided by

the legislature. The right to appeal is statutory and therefore does not exist in the

absence of a statute permitting it.” State v. Schwaller, 2006 S.D. 30, ¶ 5, 712

N.W.2d 869, 871 (internal quotations marks omitted); accord State v. Sharpfish,


1.      This opinion was decided prior to Justice Zinter’s death.

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2018 S.D. 63, ¶ 14, 917 N.W.2d 21, 23. SDCL 15-26A-60 requires the jurisdictional

statement in an appellant’s brief to show “that the order sought to be reviewed is

appealable.” Siemers does not identify any authority upon which this Court has

appellate jurisdiction to consider his direct appeal from magistrate court. If a

question of appellate jurisdiction exists, we are required to take notice of the

question regardless of a party’s failure to raise it. Schwaller, 2006 S.D. 30, ¶ 5, 712

N.W.2d at 871.

[¶5.]        “A magistrate court with a magistrate judge presiding has concurrent

jurisdiction with the circuit courts to try and determine any action for a protective

or restraining order or injunctive relief pursuant to chapter 22-19A, 25-10, or 21-

65.” SDCL 16-12B-13. There is also a limited right to appeal. “Unless appeal is

denied by law, there is a right of appeal to the circuit court from any final order or

judgment of the magistrate court with a magistrate judge presiding[.]” SDCL 16-

12B-16 (emphasis added); accord SDCL 16-12A-27.1. Accordingly, Siemers had a

right to appeal the magistrate court’s order to the circuit court, but we see no

statutory authority to appeal directly to this Court.

[¶6.]        We have previously recognized that appellate jurisdiction from a

magistrate court’s decision is limited to the circuit court. Dale v. City of Sioux Falls,

2003 S.D. 124, ¶ 8, 670 N.W.2d 892, 895; Schwaller, 2006 S.D. 30, ¶ 8, 712 N.W.2d

at 871. “[W]ith the one exception provided by SDCL 23A-32-5 (appeals by the State

from certain pre-trial orders of a circuit court or magistrate), there is no right of




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direct appeal from magistrate court to the Supreme Court.”2 State v. Hoxeng, 315

N.W.2d 308, 309 (S.D. 1982). We must therefore dismiss. “[W]hen a party fails to

pursue the only appeal authorized by law (to circuit court), this Court has no

jurisdiction to entertain a direct appeal.” Schwaller, 2006 S.D. 30, ¶ 8, 712 N.W.2d

at 871.

[¶7.]         GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER,

Justices, concur.




2.      The exception provided by SDCL 23A-32-5 involves certain criminal cases.

              An appeal by a prosecuting attorney may be taken to the
              Supreme Court from:
              (1) An order of a circuit court or a magistrate suppressing or
              excluding evidence or requiring the return of seized property in
              a criminal proceeding;
              (2) An order of a circuit court or a magistrate sustaining a
              motion to dismiss a complaint on statutory grounds or
              otherwise.

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