#27298-rev & rem-DG
2015 S.D. 83

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA


                                    ****

VERA GOOD LANCE,                            Plaintiff and Appellant,

v.

BLACK HILLS DIALYSIS, LLC,
and LEETTA BREWER,                          Defendants and Appellees.



                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                   SHANNON COUNTY, SOUTH DAKOTA
                              ****
                  THE HONORABLE ROBERT A. MANDEL
                              Judge

                                    ****


JON J. LAFLEUR
CHARLES ABOUREZK of
Abourezk & Zephier, PC
Rapid City, South Dakota                    Attorneys for plaintiff and
                                            appellant.

GREGORY J. BERNARD
CATHERINE L. Z. CHICOINE of
Thomas Braun Bernard & Burke, LLP
Rapid City, South Dakota                    Attorneys for defendants and
                                            appellees.

                                    ****


                                            ARGUED OCTOBER 6, 2015
                                            OPINION FILED 11/04/15
#27298

GILBERTSON, Chief Justice

[¶1.]         Vera Good Lance sued Black Hills Dialysis, LLC and LeEtta Brewer

(collectively, BHD) for negligence after suffering an injury from a fall while at

BHD’s facility in Shannon County on the Pine Ridge Indian Reservation. 1 A

dispute arose between the parties about whether the circuit court should summon

jurors from Shannon County or neighboring Fall River County. A 2009 standing

order issued by the Seventh Circuit Presiding Judge required that all cases filed in

Shannon County be venued in Fall River County. In accordance with this order, the

circuit court ruled that it would summon Fall River County jurors. Good Lance,

through her estate’s administrator Hilda Kills Small, requested this intermediate

appeal. We reverse and remand for further proceedings.

                                    Background

[¶2.]         Good Lance was a resident of Shannon County, South Dakota.

Shannon County is located completely within the boundaries of the Pine Ridge

Indian Reservation. Good Lance was a regular patient at BHD’s facility in Shannon

County. During one of her regular dialysis treatments, Good Lance fell and suffered

injuries that generated substantial medical expenses and required a nursing home

stay. At the time of her fall, Good Lance was being assisted by BHD’s employee,

LeEtta Brewer. Good Lance commenced this action against BHD in Shannon

County. Shortly after BHD deposed Good Lance, Good Lance died. Hilda Kills



1.      We take judicial notice that in May of 2015 the name of Shannon County was
        changed to Oglala Lakota County. However, we refer to it as Shannon
        County because that was its name throughout the proceedings in the circuit
        court.

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Small, the special administrator for Good Lance’s estate, continued this action on

behalf of the estate.

[¶3.]         Good Lance sued BHD in Shannon County for her injuries. However,

Shannon County has no physical state court facilities. It contracts with neighboring

Fall River County for its governmental services. Thus, all Shannon County legal

proceedings are held at the Fall River County Courthouse in Hot Springs, South

Dakota. Accordingly, all hearings in this matter took place at the Fall River County

Courthouse.

[¶4.]         At a pre-trial hearing, the parties disputed whether the circuit court

should summon jurors from Shannon County or Fall River County. The circuit

court advised the parties that it intended to empanel Fall River County jurors, due

to a standing order issued in 2009 by the Presiding Judge of the Seventh Circuit

(hereafter, the standing order). The standing order stated that all Shannon County

matters would be tried in Fall River County. 2 The standing order was issued in



2.      The relevant language of the order states:
              The Court, presiding Judge Jeff W. Davis, having reviewed
              applicable laws and procedures and being fully advised of the
              premise, now, based on factors allowing judicious administration
              of court services and resources does HEREBY ORDER: That the
              venue of all state judicial matters filed in Shannon County shall
              be tried in Fall River County in accordance with the laws and
              policies set out in South Dakota statutory authority, the
              Shannon/Fall River County Contract for governmental services
              and Oglala Sioux Tribe Proclamation and Executive Order
              declaring state court service and filings unenforceable on the
              Pine Ridge Indian Reservation. This Order allows consideration
              of the fact that a state court judge lacks jurisdiction in tribal
              court to summon and seat the jury panel and lacks the inherent
              authority to invoke statutory procedures necessary to ensure a
              fair trial. The Order further allows consideration of factors
                                                                     (continued . . . )
                                            -2-
#27298

response to an executive order issued by the President of the Oglala Sioux Tribe.

The executive order stated that any service of process issued by a state court could

not be enforced within the boundaries of the Pine Ridge Indian Reservation. Good

Lance made a motion to summon Shannon County jurors and the parties briefed the

issue.

[¶5.]        At a subsequent hearing on the motion, BHD argued that a state court

does not have jurisdiction over Indians within the boundaries of the reservation;

therefore, the court would not have any method of compelling jurors to attend the

trial. Thus, BHD argued that the court had no alternative but to use Fall River

County jurors. Conversely, Good Lance argued that the issue was one of venue, and

that venue was proper in Shannon County because the events giving rise to the

claim occurred in Shannon County. Good Lance also argued that juror attendance

could be successfully compelled under the United States Supreme Court’s holding in

Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001). Lastly,

Good Lance argued that the standing order was unconstitutional under both the

South Dakota Constitution and the United States Constitution.

[¶6.]        The circuit court ruled that it would summon Fall River County jurors.

The circuit court reasoned that under our interpretation of Hicks, the language in

Hicks that indicates a state court could compel juror attendance was mere dicta,

therefore not controlling. See State v. Cummings, 2004 S.D. 56, ¶ 16, 679 N.W.2d


_______________________
(. . . continued)
               affecting efficient administration of judicial resources such as
               time, cost and court services necessary to conduct a jury trial.


                                           -3-
#27298

484, 489. 3 The circuit court further held that the standing order supported its

resolution of the issue. The circuit court concluded that neither state nor federal

case law would support it asserting the jurisdiction required to compel jurors from

Shannon County. Good Lance appeals.


[¶7.]         The following issues are discussed in this appeal:

              1.     Whether Good Lance has standing to contest the validity of the
                     standing order.

              2.     Whether the standing order violated South Dakota statutes or
                     case law regarding venue.

              3.     Whether the standing order violated the right to a fair and
                     impartial jury under the South Dakota and United States
                     Constitutions.

              4.     Whether the circuit court would be able to compel juror
                     attendance of Shannon County residents.

                                 Standard of Review

[¶8.]         Good Lance argues that the standing order and the circuit court’s

interpretation of applicable case law replacing the Shannon County jury panel with

a panel summoned from Fall River County violated her constitutional right to a fair

and impartial jury. Good Lance also argues that the standing order was an

unconstitutional judicial encroachment on the Legislature. We review alleged

violations of constitutional rights de novo. Stehly v. Davison Cty., 2011 S.D. 49, ¶ 7,

802 N.W.2d 897, 899 (citing W. Two Rivers Ranch v. Pennington Cty., 2002 S.D.

107, ¶ 8, 650 N.W.2d 825, 827).



3.      Hicks does not affect our analysis in the disposition of this case. Thus, we do
        not address the parties’ arguments about its applicability.

                                           -4-
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[¶9.]        Good Lance also argues that the standing order violates South Dakota

statutes governing venue and jury empaneling. The de novo standard of review also

applies to issues of statutory construction. See Apland v. Bd. of Equalization for

Butte Cty., S.D., 2013 S.D. 33, ¶ 7, 830 N.W.2d 93, 97. (applying de novo standard

of review to both questions of constitutional rights deprivations and issues of

statutory interpretation). Under the de novo standard of review, no deference is

given to the circuit court’s conclusions of law. Stehly, 2011 S.D. 49, ¶ 7, 802 N.W.2d

at 899.

                                       Decision

[¶10.]       1.     Whether Good Lance has standing to contest the validity of the
                    standing order.

[¶11.]       BHD alleges that Good Lance does not have standing to contest the

standing order because she did not employ the proper legal procedures for vacating

the order. BHD argues that instead of seeking an intermediate appeal of the circuit

court’s order that Fall River County jurors would be summoned, Good Lance should

have sought a writ of certiorari seeking to vacate the standing order. BHD also

argues that Good Lance should have named then Presiding Judge Davis as a party

to the lawsuit to have standing to contest his standing order. We disagree.

[¶12.]       There are five requirements to establish standing. The party must

allege:

             (1) a personal injury in fact, (2) a violation of his or her own, not
             a third-party’s rights, (3) that the injury falls within the zone of
             interests protected by the constitutional guarantee involved, (4)
             that the injury is traceable to the challenged act, and (5) that
             the courts can grant redress for the injury.




                                           -5-
#27298

Sioux Falls Argus Leader v. Miller, 2000 S.D. 63, ¶ 6, 610 N.W.2d 76, 80 (quoting

Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,

454 U.S. 464, 472-74, 102 S. Ct. 752, 758-59, 70 L. Ed. 2d 700 (1982)). A judge’s

action need not directly harm litigants for them to have suffered an injury

recognized for standing analysis. See id. ¶ 8, 610 N.W.2d at 81 (holding that a

judge’s gag order on court members was a cognizable injury to the press for

standing purposes even though the order was not directed at the press).

Additionally, even if a party has not sustained an injury, the party may still have

standing if an injury is imminent and concrete. See Cramp v. Bd. of Pub.

Instruction of Orange Cty., Fla., 368 U.S. 278, 282-83, 82 S. Ct. 275, 278, 7 L. Ed. 2d

285 (1961); Doremus v. Bd. of Ed. of Borough of Hawthorne, 342 U.S. 429, 434-35,

72 S. Ct. 394, 397, 96 L. Ed. 475 (1952).

[¶13.]       Good Lance clearly satisfied all five requirements for standing. The

injury, not having a fair and impartial jury of her peers, is clear and imminent, as

the circuit court’s decision denied her from having a jury comprised of a cross

section of her community. See SDCL 16-13-10.1 (stating that it is the policy of

South Dakota that all litigants are entitled to have juries selected from a fair cross

section of the community). The injury is personal to her, not a third party, and it is

not a generalized grievance of the population. Her injury is also clearly within the

zone of interests protected by the right to a fair and impartial jury guaranteed by

the South Dakota Constitution. See S.D. Const. art. VI, § 6. The injury is clearly

the result of the standing order, as the standing order was crucial to the circuit

court’s decision to use Fall River County jurors. We are also able to redress the


                                            -6-
#27298

alleged injury by reversing the circuit court’s decision and remanding with

instructions to disregard the standing order. Thus, Good Lance satisfies all five

elements of standing.

[¶14.]         BHD argues that Good Lance should have sought a writ of certiorari

under SDCL 21-31-1 (authorizing writ) and SDCL 21-31-2 (delineating application

procedure) if she wanted to vacate the standing order. However, a writ of certiorari

is an equitable remedy, and an equitable remedy is only available when there is no

remedy at law that could address the problem. Ridley v. Lawrence Cty. Comm’n,

2000 S.D. 143, ¶ 6, 619 N.W.2d 254, 257. We have already granted Good Lance’s

petition for intermediate appeal under SDCL 15-26A-13, so Good Lance has an

adequate remedy at law. Additionally, SDCL Chapter 21-31 does not make a writ of

certiorari an exclusive remedy. Therefore, even if Good Lance could have sought a

writ of certiorari, that option did not preclude her from pursuing an intermediate

appeal. We hold that Good Lance has standing to pursue this appeal. 4

[¶15.]         2.     Whether the standing order violates South Dakota statutes or
                      case law regarding venue.

[¶16.]         We now consider the propriety of the standing order in the context of

South Dakota statutes and case law regarding venue. We first analyze whether the

standing order violated South Dakota law regarding venue. We then address the




4.       Many of our cases discussing certiorari and its exclusivity requirement
         predate the Court Rule prescribing the method for taking intermediate
         appeals. However, since an intermediate appeal is a matter of this Court’s
         judicial discretion, application for it is not a prerequisite to obtaining a writ
         of certiorari in an appropriate case.

                                             -7-
#27298

circuit court’s holding that effectively placed the burden on the plaintiff to justify

venue.

                    a. Whether the standing order is consistent with South Dakota
                       law regarding venue.

[¶17.]       In South Dakota, statutes govern venue. “Actions for conversion of

personal property, or for the recovery of damages to persons or property, may at the

option of the plaintiff be brought and tried in the county where the damages were

inflicted or the cause of action arose.” SDCL 15-5-8. Our statutes also mandate

that an action will be tried in the county where the plaintiff files suit, even if the

county is improper, if the defendant does not timely request a change of venue.

SDCL 15-5-10. We have held that “[v]enue in the courts of this state is entirely

statutory. In the absence of statutory grounds for a change, the initial choice of a

plaintiff is conclusive.” Putnam Ranches, Inc. v. O’Neill Prod. Credit Ass’n, 271

N.W.2d 856, 859 (S.D. 1978).

[¶18.]       In light of these holdings and statutes, the presiding judge had no

authority to effectively change venue in this manner. The standing order clearly

went beyond the confines of the presiding judge’s statutory authority. Whatever the

reasons for the order, his authority does not include the power to effectively change

the venue of all properly venued Shannon County cases.

[¶19.]       BHD argues that the standing order was allowed under SDCL 16-13-

37. This statute requires presiding circuit court judges to prescribe the “manner” in




                                           -8-
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which jury panels are to be summoned and utilized for trials in each county. 5

However, determining the manner in which jury panels are used and how they are

to be summoned does not mean the presiding judge can choose from which counties

to empanel jurors, broadly excluding all the residents of an entire South Dakota

county from the opportunity to serve on a jury. See SDCL 16-13-10.1 (“It is further

the policy of the State of South Dakota that all citizens of the state, qualified for

jury duty, shall have the opportunity to be considered for service on grand and petit

juries[.]”). The possibility of juror noncompliance does not justify changing the

county from which the jurors are empaneled. See Nebraska Elec. Generation &

Transmission Co-op., Inc. v. Markus, 90 S.D. 238, 244, 241 N.W.2d 142, 146 n.2

(1976) (noting that it would be improper to use residents from an organized county

as jurors in a matter properly brought in an unorganized county). The language of

SDCL 16-13-37 is not so broad as to give presiding circuit court judges the authority

to alter the venue procedures that our Legislature properly put into place.

[¶20.]         Even if we were to conclude that a presiding judge had this authority,

the standing order would still be invalid under other provisions of SDCL chapter 16-

13. A presiding circuit court judge has authority to prescribe the manner in which

jury panels are utilized, and circuit courts are free to make local rules to suit their



5.       Respondents do not cite it, but SDCL 16-2-21 sets forth the general duties
         and authority for a circuit’s presiding judge. The language of this statute
         allows presiding judges to make “arrangements with proper authorities for
         the drawing of jury panels and determining which sessions shall be jury
         sessions[.]” As with SDCL 16-13-37, the language of this statute does not
         extend so far as to allow a presiding judge to exclude an entire county’s
         population from jury panels.


                                           -9-
#27298

needs. See Stormo v. Strong, 469 N.W.2d 816, 823 (S.D. 1991) (holding that circuits

can make local rules and that such rules should be followed). However, it is the

responsibility of this Court to enforce SDCL chapter 16-13’s provisions regarding

juries. SDCL 16-13-18.2. If a circuit court wishes to change its procedures

regarding jury selection, it must submit its proposed change for this Court’s

approval. SDCL 16-13-18.3. 6 A circuit court also must have this Court’s approval

to change any of its local procedural rules. See SDCL 15-6-83 (requiring this

Court’s approval for any change to any circuit court’s local rules). No indication of

such approval occurs anywhere in the record of this case or the records of this

Court. Thus, even if we were to hold that such a drastic change to venue rules were

permitted under SDCL 16-13-37, the standing order would still be invalid because

the change was entered in violation of SDCL 16-13-18.3 and SDCL 15-16-83.

[¶21.]         As the standing order infringed on venue statutes, it also infringed on

the Legislature’s role of creating venue law, a violation of the South Dakota

Constitution. S.D. Const. art. II (“The powers of the government of the state are

divided into three distinct departments, the legislative, executive and judicial; and

the powers and duties of each are prescribed by this Constitution.”). “The doctrine


6.       The statute reads as follows:
               The presiding judge of each circuit shall administer and enforce
               the jury selection provisions of this chapter. Such judge may
               vary the terms of the random selection process to meet local
               conditions in any county or jury district in the circuit if such
               changes are consistent with the terms of this chapter. Such
               changes shall be reduced to writing, approved by the Supreme
               Court pursuant to § 16-13-18.2 and filed with the clerk of the
               court in any county affected by the changes with the other
               materials required to be preserved by § 16-13-31.1.


                                          -10-
#27298

of separation of powers has been a fundamental bedrock to the successful operation

of our state government since South Dakota became a state in 1889.” Gray v.

Gienapp, 2007 S.D. 12, ¶19, 727 N.W.2d 808, 812. We have held that courts in

South Dakota must avoid judicial legislation, which is a usurpation of the

legislature’s power. AEG Processing Ctr. No. 58, Inc. v. S.D. Dep’t of Revenue &

Regulation, 2013 S.D. 75, ¶ 19, 838 N.W.2d 843, 849 (quoting Petition of Famous

Brands, Inc., 347 N.W.2d 882, 884 (S.D. 1984)).

[¶22.]       Other courts have recognized the role of their respective legislatures in

determining venue law. The United States Supreme Court has held that its power

to regulate procedure in the federal courts does not trump valid venue statutes

passed by Congress. United States v. Nat’l City Lines, 334 U.S. 573, 588-89, 68 S.

Ct. 1169, 1177-78, 92 L. Ed. 1584 (1948). States have followed suit, holding that

altering venue is within the exclusive realm of the legislature. See State ex rel.

Riffle v. Ranson, 464 S.E.2d 763, 768 (W. Va. 1995) (“To be clear, the West Virginia

Legislature is the paramount authority for deciding and resolving policy issues

pertaining to venue matters”); State ex rel. Wade v. Cass Circuit Court, 447 N.E.2d

1082, 1083 (Ind. 1983) (“[T]he right to a change of venue from the county or judge is

a substantive right which can be conferred only by the legislature.”).

[¶23.]       It is clear in this case that the standing order was not within the

presiding judge’s statutory authority. A court’s power to control procedure does not

extend so far as to prevent a plaintiff from having a jury from her home county

decide her case. Only the South Dakota Legislature could change our venue




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statutes. The standing order was an unconstitutional judicial encroachment on the

powers of the South Dakota Legislature.

                    b. Whether the circuit court effectively forced Good Lance, rather
                       than BHD, to justify venue in desired county.

[¶24.]       A plaintiff’s choice of where to file suit is conclusive absent a venue

transfer request by the defendant. Putnam Ranches, Inc., 271 N.W.2d at 859; see

also SDCL 15-5-10 (stating that a trial may be held in an improper county if

defendant fails to request a change). While it is correct that either party may move

for a change in venue, the burden is on the party that wants a change in venue to

show why venue is improper. See Olson v. City of Sioux Falls, 63 S.D. 563, 262

N.W. 85, 87-88 (illustrating that either party may move for a change in venue);

Estes v. Lonbaken, 2011 S.D. 52, ¶ 14, 803 N.W.2d 609, 612 (“Accordingly, the party

raising the issue has the burden of proving improper venue.”)

[¶25.]       In this case, Good Lance filed suit in Shannon County. We

acknowledge that all the proceedings in this case have been held at the Fall River

County Courthouse, but that is due to the contract between the counties. The

counties remain separate legal entities. Shannon County’s decision to contract out

its obligation to provide a physical location to hold court proceedings did not take

away Good Lance’s right to choose appropriate venue in her home county, where the

events giving rise to the litigation took place. See SDCL 15-5-8 (“Actions . . . for the

recovery of damages to persons or property, may at the option of the plaintiff be

brought and tried in the county where the damages were inflicted[.]”) (Emphasis

added.) Despite these statutes, the circuit court erroneously placed the burden on

Good Lance to justify using Shannon County jurors; the court required Good Lance

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to make the motion and provide factual and legal support. If BHD had a problem

with the Shannon County jury pool, it was BHD’s burden to make and support a

motion for a change in venue to Fall River County. See Markus, 90 S.D. at 245, 241

N.W.2d at 146 (“we are not persuaded that the appellant has met its burden of proof

that prejudice resulted”); State v. Aesoph, 2002 S.D. 71, ¶ 45, 647 N.W.2d 743, 758

(holding that criminal defendant did not meet his burden of proof that jury selection

process violated his due process rights). Without a motion from BHD to change

venue, Good Lance’s choice of venue was presumptively conclusive, and it was not

her burden to justify her statutory right to her choice of venue.

[¶26.]         BHD argues that it will be unable to receive a fair and impartial trial

if the court empanels Shannon County jurors. BHD argues that because a high

percentage of Shannon County residents are members of the Oglala Sioux Tribe and

residents of the Pine Ridge Reservation, the circuit court has no jurisdiction to

compel attendance of those persons summoned for jury duty. BHD believes that

because of the court’s inability to compel attendance, the only people that will show

up for jury selection are those that will have an interest in the matter. BHD argues

that such a cross-section of the community would deny it a fair trial. The

correctness of this contention is a premature issue as BHD has not attempted to

factually establish juror bias. To proceed on such a contention, BHD must provide

factual support for the proposition that a fair cross-section of Shannon County

residents will not attend jury selection. 7 We have previously indicated that voir



7.       Good Lance cites several cases that were tried prior to the issuance of the
         standing order that took place at the Fall River County Courthouse but
                                                                     (continued . . . )
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dire is the proper procedure for determining the bias of prospective jurors. See

generally City of Sioux Falls v. Johnson, 1999 S.D. 16, ¶ 37, 588 N.W.2d 904, 912

(holding that voir dire was the proper mechanism determining public hostility).

BHD cannot now argue for what amounts to a change in venue with only

speculations of possible negative consequences.

[¶27.]       BHD relies on State v. Blem, 2000 S.D. 69, 610 N.W.2d 803. In Blem,

we held that structural errors in jury selection procedures deny a party his right to

a fair and impartial jury. Id. ¶¶ 29-30, 610 N.W.2d at 810. However, Blem is

distinguishable. In Blem, the defendant appealed after trial because the court had

removed two potential jurors before examination by the parties was possible. Id. ¶

19, 610 N.W.2d at 807-08. In this case, no defect that could lead to structural error

has occurred, as trial has not yet taken place. BHD cannot claim a structural defect

has deprived it of its right to a fair and impartial jury before the jury panels are

selected, the jurors are summoned, and jurors are questioned during voir dire. To

claim this type of structural error, BHD must develop a record indicating juror bias

during voir dire.

[¶28.]       Even if we were to hold that Blem were applicable in this case, it would

not support BHD’s argument. We held that there was a structural defect in Blem

because jurors were improperly eliminated from consideration prior to voir dire. Id.

_______________________
(. . . continued)
         empaneled Shannon County jurors. State v. Jensen, 2007 S.D. 76, 737
         N.W.2d 285; State v. Finney, 337 N.W.2d 167, 168 (S.D. 1983); Estate of He
         Crow by He Crow v. Jensen, 494 N.W.2d 186, 187 (S.D. 1992). These cases
         cast even more doubt on BHD’s concerns about a fair and impartial trial, as
         they demonstrate that jury trials have been successful empaneling Shannon
         County jurors.

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¶ 30, 610 N.W.2d at 810 (“Here, there was a substantial failure to comply with jury

selection statutes because no examination of the prospective jurors was conducted

prior to their removal.”). If we were to hold for BHD in this case and affirm the

circuit court, we would be enabling the same structural defect to occur—premature

elimination of potential jurors. However, instead of prematurely eliminating just

two potential jurors from consideration, as was the case in Blem, it would be the

entire population of Shannon County. 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.

[¶29.]       Based on the above analysis, the circuit court’s ruling on venue is

improper and without legal basis. Additionally, the circuit court erred in placing

the burden on Good Lance to justify venue in Shannon County. Shannon County is

where the injury occurred, the cause of action arose, and where Good Lance filed

her suit. Good Lance is entitled to have Shannon County jurors hear her case until

BHD can prove it is entitled to a statutory change.

[¶30.]       3.     Whether the standing order violated the right to a fair and
                    impartial jury under the South Dakota and United States
                    Constitutions.

[¶31.]       Both parties argue that their constitutional rights were violated or

would be violated if we were to hold against them. However, our holding today

disposes of this case without requiring any further constitutional analysis. Thus,

we decline to address the parties’ constitutional arguments. See In re Estate of

Flaws, 2012 S.D. 3, ¶ 22, 811 N.W.2d 749, 755 (holding that addressing




                                          -15-
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constitutional issues is unnecessary when the case is disposed of on other grounds

(citing Sheehan v. United Pac. Ins. Co., 439 N.W.2d 117, 119 (S.D. 1989))).

[¶32.]          4.    Whether the circuit court would be able to compel juror
                      attendance of Shannon County residents.

[¶33.]          The parties have extensively briefed the question of the circuit court’s

ability to compel the attendance of members of the Oglala Sioux Tribe who reside on

the Pine Ridge Reservation. However, BHD has presented only generalized

assumptions as evidence as to why this will be an issue. Concerns BHD has about

an unfair jury cannot be addressed until a jury is actually empaneled and voir dire

has taken place. The panel cannot be exhausted, invoking SDCL 16-13-43, prior to

it even being summoned. As such, we decline to address the parties’ arguments

about the ability of the circuit court to compel juror attendance.

                                       Conclusion

[¶34.]          We hold that the presiding judge exceeded his statutory and

constitutional authority in issuing the standing order effectively changing venue in

all Shannon County cases. The circuit court also erred in its analysis reaching the

same conclusion of exclusion of a Shannon County jury panel. For these reasons,

we vacate the presiding judge’s standing order and reverse the order of the circuit

court. In this case, venue is proper in Shannon County, and Shannon County jurors

should be summoned and empaneled.

[¶35.]          ZINTER, SEVERSON, WILBUR, Justices, and KONENKAMP,

Retired Justice, concur.

[¶36.]          KONENKAMP, Retired Justice, sitting for KERN, Justice,

disqualified.

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