#28660-a-DG
2019 S.D. 11

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA


                                   ****

DEBRA LEE ANDERSON,                         Petitioner and Appellant,

      v.

SOUTH DAKOTA
RETIREMENT SYSTEM,                          Respondent and Appellee.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    MEADE COUNTY, SOUTH DAKOTA

                                   ****

                 THE HONORABLE GORDON D. SWANSON
                              Judge

                                   ****


JAMES D. LEACH
Rapid City, South Dakota                    Attorney for petitioner and
                                            appellant.


ROBERT B. ANDERSON
JUSTIN L. BELL of
May, Adam, Gerdes and
 Thompson, LLP
Pierre, South Dakota                        Attorneys for respondent and
                                            appellee.

                                   ****


                                            ARGUED JANUARY 8, 2019
                                            OPINION FILED 02/20/19
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GILBERTSON, Chief Justice

[¶1.]        Debra Lee Anderson and Deborah Cady were committed partners who

worked for the Rapid City Police Department (RCPD). Cady retired from the

department in May 2012. The couple married on July 19, 2015. Cady passed away

on March 10, 2017. Upon Cady’s passing, Anderson applied for survivor spouse

benefits under Cady’s retirement plan with the South Dakota Retirement System

(SDRS). The SDRS denied Anderson’s application claiming Anderson and Cady

were not married at the time of Cady’s retirement and Anderson did not meet the

definition of a “spouse” needed to qualify for survivor benefits. Anderson appealed

to the South Dakota Office of Hearing Examiners (OHE) and then to the circuit

court, which both affirmed the SDRS. Anderson now appeals the order of the circuit

court. We affirm.

                          Facts and Procedural History

[¶2.]        The facts of this case are undisputed. Cady was employed by the

RCPD. She was enrolled in the SDRS in 1986 and continued her enrollment for 26

years until her retirement on May 1, 2012. Throughout her service, Cady advanced

from sergeant to lieutenant and finally served as one of two captains who reported

directly to the chief of police. Cady attained the highest rank of any female officer

in the history of the RCPD at the time.

[¶3.]        Cady met Anderson in 1986. The two became good friends and

eventually professed their love for one another. The couple started living together

in July 1988. Anderson described their relationship as “wonderful” and considered

Cady to be her “soul mate.” Anderson stated that the couple built and shared a


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home together, made decisions together, and supported each other’s career and

personal choices. They considered themselves to be married, even though they were

not legally married at the time.

[¶4.]        Anderson was also employed by the RCPD and worked as commander

of the uniform division and in supervisory roles. Two chiefs of police under whom

Cady and Anderson served stated that the couple was well known in the RCPD to

be committed partners. According to the late Craig Tieszen, RCPD Chief of Police

from 2000–2007, there were no issues within the department about accepting Cady

and Anderson’s relationship. Current Chief of Police Karl Jegeris testified that

since he began working at the RCPD in 1995, it was very clear that the two were a

committed couple and had the same relationship as anyone who was married.

Jegeris went so far as to state that “[o]ur department considers them a married

couple, period, end of story. I speak on behalf of the department.” Anderson also

agreed that she and Cady were a well-known couple for many years in the RCPD.

[¶5.]        In 2004, Cady was diagnosed with breast cancer. Anderson stated that

she assisted Cady through the difficult ordeal, which included surgery,

chemotherapy, a period of remission, the return of cancer and more chemotherapy,

and the decision to end chemotherapy. Anderson stated that during this period, she

and Cady were “very devoted and very loving to each other.” On May 1, 2012, Cady

retired from the RCPD due to cancer. Cady then applied for SDRS benefits, listing

herself as single on the application.

[¶6.]        Anderson testified that she and Cady had spoken about getting

married both when Massachusetts legalized same-sex marriage in 2003, and when


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Iowa legalized same-sex marriage in 2009. In 2009, Cady surprised Anderson with

matching rings. Anderson testified that the couple had “agreed that [they] would

marry. But for [them] it was going to have to be when it was either recognized by

the State of South Dakota, which is where [they] resided and worked, or by the

Federal Government, you know, as a nation as a whole.” Anderson stated that she

and Cady felt this way because they were employed in law enforcement. Anderson

noted that as police officers, she and Cady took an oath to “the U.S. Constitution,

the Constitution of the State of South Dakota, and the laws. And at that time, you

know, South Dakota wouldn’t recognize it.” In Anderson’s view, “[e]ven if [they]

went to Iowa and would have married, it still wouldn’t have been recognized in the

State of South Dakota.”

[¶7.]        In 2015, the United States Supreme Court handed down its decision in

Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). In

Obergefell, the Court stated:

             [T]he right to marry is a fundamental right inherent in the
             liberty of the person, and under the Due Process and Equal
             Protection Clauses of the Fourteenth Amendment couples of the
             same-sex may not be deprived of that right and that liberty.
             The Court now holds that same-sex couples may exercise the
             fundamental right to marry. No longer may this liberty be
             denied to them.

Id. at ___, 135 S. Ct. at 2605-06. Twenty-three days after Obergefell was decided,

Anderson and Cady were married in Las Vegas, Nevada on July 19, 2015.

[¶8.]        On March 10, 2017, Cady passed away after her long battle with

breast cancer. On March 20, 2017, Anderson applied for survivor benefits through

the SDRS. On April 24, 2017, the SDRS denied Anderson’s application via a letter,


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stating Anderson and Cady were not married at the time of Cady’s retirement and

Anderson did not meet the definition of a “spouse” to qualify for survivor benefits.

Anderson replied to the SDRS by letter on July 7, 2017. The reply was treated as

an appeal and a hearing was held before the OHE on October 31, 2017.

[¶9.]        On December 1, 2017, the OHE issued a written decision, including

findings of fact and conclusions of law, affirming the SDRS’s decision to deny

Anderson survivor benefits. On December 4, 2017, Anderson made a motion

proposing supplemental findings of fact and conclusions of law, which the OHE

rejected. Anderson appealed the OHE’s decision to affirm the SDRS’s decision to

the circuit court. On June 14, 2018, the circuit court entered a memorandum

decision and order affirming the decision of the OHE. Anderson now appeals the

order of the circuit court. We combine and restate the issues raised as follows:

Whether the circuit court erred by denying survivor spouse benefits to Anderson.

                                Standard of Review

[¶10.]       The central issue in this appeal is the propriety of the adjudication of

Anderson’s right to survivor benefits, which adjudication occurred through the

SDRS and the OHE, two administrative agencies. This appeal is therefore

governed by South Dakota’s Administrative Procedures Act, SDCL chapter 1-26.

SDCL 1-26-36 delineates the standard for a circuit court’s review of an

administrative agency’s decision, and “[t]he same rules apply on appeal to this

Court.” Lagler v. Menard, Inc., 2018 S.D. 53, ¶ 22, 915 N.W.2d 707, 715.

             Questions of law are reviewed de novo. Dakota Trailer Mfg.,
             Inc. v. United Fire & Cas. Co., 2015 S.D. 55, ¶ 11, 866 N.W.2d
             545, 548. Matters of reviewable discretion are reviewed for
             abuse. SDCL 1-26-36(6). The agency’s factual findings are

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             reviewed under the clearly erroneous standard. SDCL 1-26-
             36(5). The agency’s decision may be affirmed or remanded but
             cannot be reversed or modified absent a showing of prejudice.
             SDCL 1-26-36.

Id.

                               Analysis & Decision

[¶11.]       SDCL 3-12-94 states the eligibility requirements for a surviving spouse

to receive survivor benefits from a person enrolled in the SDRS:

             Upon the death of a foundation retiree or any foundation
             member who has reached normal retirement age, the surviving
             spouse is eligible to receive a benefit, payable in monthly
             installments, equal to sixty percent of the retirement benefit
             that the foundation member was receiving or was eligible to
             receive at the time of death.

SDCL 3-12-47(80) defines a spouse as “a person who was married to the member at

the time of the death of the member and whose marriage was both before the

member’s retirement and more than twelve months before the death of the

member[.]”

[¶12.]       The OHE and the circuit court affirmed SDRS’s rejection of Anderson’s

application for survivor benefits because: (1) Anderson and Cady were not married

at the time of Cady’s retirement; and (2) Anderson did not meet the definition of a

“spouse” under SDCL 3-12-47(80). Anderson makes two constitutional claims.

First, Anderson claims that the Supreme Court’s holding in Obergefell—that same-

sex couples can no longer be denied the right to marry—should be applied

retroactively to a time before Cady’s retirement. Second, she claims that the

retroactivity of Obergefell should be extended to same-sex couples like her and

Cady, who Anderson claims, but for South Dakota’s unconstitutional prohibition of


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same-sex marriage, would have been married prior to Cady’s retirement. Anderson

claims that accepting these arguments leads to the recognition of her marriage to

Cady before the date of their actual marriage and before the date of Cady’s

retirement, and therefore, to the recognition of Anderson as Cady’s spouse for

purposes of SDCL 3-12-47(80). Anderson argues that the circuit court erred in

rejecting these constitutional arguments and holding that she was not entitled to

survivor benefits.

[¶13.]       As to the retroactivity of Obergefell, Anderson first cites Harper v.

Virginia Dep’t of Taxation, 509 U.S. 86, 97, 113 S. Ct. 2510, 2517, 125 L. Ed. 2d 74

(1993). In Harper, the Supreme Court adopted a rule of retroactivity applying to

the Court’s decision on federal laws, stating:

             When this Court applies a rule of federal law to the parties
             before it, that rule is the controlling interpretation of federal law
             and must be given full retroactive effect in all cases still open on
             direct review and as to all events, regardless of whether such
             events predate or postdate our announcement of the rule. . . .
             [W]e now prohibit the erection of selective temporal barriers to
             the application of federal law in noncriminal cases. In both civil
             and criminal cases, we can scarcely permit “the substantive law
             to shift and spring” according to “the particular equities of
             individual parties’ claims” of actual reliance on an old rule and
             of harm from a retroactive application of the new rule.

Id. at 97, 113 S. Ct. at 2517 (citations omitted). Anderson also cites a number of

cases and secondary sources that support the retroactivity of Obergefell. See, e.g.,

Ranolls v. Dewling, 223 F. Supp. 3d 613, 622 (E.D. Tex. 2016); Steven A. Young,

Note, Retroactive Recognition of Same-Sex Marriage for the Purposes of the

Confidential Marital Communications Privilege, 58 Wm. & Mary L. Rev. 319, 336

(2016) (“Although the Court does not explicitly state that same-sex couples affected


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by pre-Obergefell law are entitled to retroactive application of post-Obergefell law, it

is the logical result of the ruling.”); Lee-ford Tritt, Moving Forward by Looking

Back: The Retroactive Application of Obergefell, 2016 Wis. L. Rev. 873, 877 (2016).

[¶14.]       The parties do not seem to contest the retroactive application of

Obergefell. In its brief, the SDRS suggests that Obergefell may be retroactive.

However, the SDRS claims that the question of retroactivity is not controlling, here,

because, as both the OHE and the circuit court reasoned, the only question in this

case is whether Anderson or this Court may “create a marriage post hoc despite the

fact that Anderson and Ms. Cady never availed themselves of the marriage laws in

another state that recognized same-sex marriage.”

[¶15.]       In its decision, the OHE noted that in other jurisdictions where

retroactivity has been recognized, the retroactive ruling only affects same-sex

marriages that were already solemnized in any manner or if the state recognizes

common-law marriages. See generally, Schuett v. FedEx Corp., 119 F. Supp. 3d

1155 (N.D. Cal. 2016) (solemnized marriage); Hard v. Attorney Gen., 648 Fed. Appx.

853 (11th Cir. 2016) (solemnized marriage); Dewling, 223 F. Supp. 3d 613 (common-

law marriage). The OHE reasoned that in order for Obergefell to apply

retroactively, there must have been an previously unrecognized marriage between

the couple that would have been recognized but for the law against same-sex

marriages.

[¶16.]       The circuit court agreed with the reasoning of the OHE and found it

significant that Anderson and Cady chose not marry in another state prior to

Obergefell. The circuit court stated:


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            Had they [married in another state], and assuming retroactive
            application of [Obergefell], Anderson would presumably prevail
            here. However, [Anderson and Cady] chose not to take this
            course of action (for cited reasons that seem plausible and
            laudable); instead waiting until an option to their liking—going
            out of State to wed after the Supreme Court said home States
            must recognize such a marriage—became available. Similarly,
            if they had sought a marriage license in South Dakota, had it
            denied based on the existing State laws, successfully challenged
            that denial in the courts as the Plaintiffs in other States did,
            then married in South Dakota, Anderson would be entitled to
            survivor benefits. However, [Anderson and Cady] also chose not
            to pursue this avenue. This Court agrees with the simple
            proposition advanced by SDRS and held by the [OHE]: that even
            retroactive application of Obergefell cannot create a marriage
            where none was ever solemnized according to any State’s law at
            the time of the measuring event (Cady’s retirement).

[¶17.]      In cases cited by Anderson, those courts only applied Obergefell

retroactively to a solemnized marriage or to a common-law marriage recognized

under state law. Here, assuming without deciding that Obergefell applies

retroactively, there was no marriage, act of solemnization, or common-law marriage

to refer back to. Anderson admits that she was not married to Cady at the time

Cady retired—indeed, it is undisputed that the pair did not marry or attempt to

marry until July 19, 2015.

[¶18.]      But Anderson claims that but for South Dakota’s unconstitutional

prohibition of same-sex marriage, she and Cady would have been married before the

time Cady retired. Anderson emphasizes their long-time affection and commitment

to one another and their desire to comply with South Dakota’s constitution given

their role as police officers. Anderson and Cady’s commitment to one another and

honorable intentions are not disputed by the parties. But the fact remains that

neither Anderson nor Cady made any actual attempt to marry before the date of


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Cady’s retirement. Anderson’s argument therefore, in essence, boils down to an

attempt to establish a common-law marriage between her and Cady. South Dakota,

however, does not recognize common-law marriage, requiring that a marriage “be

solemnized, authenticated, and recorded.” SDCL 25-1-29.

[¶19.]       Because Anderson and Cady made no attempt to marry one other, and

because South Dakota does not recognize common-law marriage, the issue in this

case is resolved as a matter of statutory interpretation. SDCL 3-12-94 provides that

only a “spouse” is eligible to receive survivor benefits, and SDCL 3-12-47(80) defines

a spouse as “a person who was married to the member at the time of the death of the

member and whose marriage was both before the member’s retirement and more

than twelve months before the death of the member.” (Emphasis added.) Under

these statutes, Anderson cannot meet the definition of spouse, and therefore, is not

entitled to Cady’s survivor benefits under South Dakota law.

[¶20.]       Anderson further argues that the denial of survivor benefits

constitutes discrimination against same-sex couples on the basis of marriage.

However, we have previously held in State Div. of Human Rights, ex rel. Ewing v.

Prudential Ins. Co. of Am., that the denial of employer administered benefits on the

basis of marital status does not constitute discrimination. 273 N.W.2d 111, 115

(S.D. 1978). In that case, Ewing, an unmarried woman with no dependents, filed a

claim with Prudential for maternity benefits in order to pay for the medical

expenses from the birth of her first child. Id. at 112. Ewing’s Prudential policy,

however, only provided maternity benefits to those who listed a spouse as a




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dependent and paid an increased premium. Id. Her claim was therefore denied.

Id.

[¶21.]         Ewing filed a complaint with South Dakota’s Human Rights

Commission arguing that because “marriage is not a prerequisite for pregnancy,

[the Prudential] policy discriminate[d] against unwed mothers and married women

who for various reasons would not list their husbands as dependents and that such

denial of maternity benefits constituted sex discrimination in employment and

public accommodations.” Id. The Commission found that Ewing had been illegally

discriminated against on the basis of sex, but the circuit court reversed. Id. at 112-

13. We held that Ewing, as a single woman, was not discriminated against on the

basis of gender for being denied pregnancy benefits when she had a child. Id. at

115. This was because the only way for any single employee to obtain pregnancy

benefits was to be married, declare a spouse as a dependent, and pay an additional

premium.∗ Relying on General Electric v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L.

Ed. 2d 343 (1976), we noted that “discrimination based upon sex does not result

simply because an employer’s disability benefits plan is less than all-inclusive. . . .”

Therefore, we held that the policy did not discriminate on the basis of gender but

rather differentiated on the basis of marital status. Effectively, this holding stands

for the proposition that an employer or its pension plan may limit administered

benefits on the basis of marital status.



∗        We noted “although women are the only ones physically capable of pregnancy
         and childbirth, both men and women are legally capable of incurring
         responsibility and liability for bills for the medical expense of maternity.”
         Ewing, 273 N.W.2d at 115.

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[¶22.]          The same logic applies here. SDCL 3-12-94 only allows for a state

employee’s survivor benefits to go to a surviving spouse. To be considered a

surviving spouse, Anderson would have had to be Cady’s spouse at the time of

Cady’s retirement. As stated above, she was not. This is still true despite Anderson

and Cady’s honorable views that getting married when same-sex marriage was not

recognized in South Dakota would somehow reflect poorly on themselves or the

RCPD. Anderson was denied survivor benefits because her application did not

entitle her to such benefits under South Dakota Law. There was no discrimination

on the basis of Anderson’s gender or sexual orientation.

[¶23.]          For the reasons stated above, the circuit court did not err in affirming

the SDRS’s and the OHE’s decisions to deny Anderson survivor benefits.

[¶24.]          JENSEN, Justice, and ELSHERE and SHELTON, Circuit Court

Judges, and SEVERSON, Retired Justice, concur.

[¶25.]          ELSHERE, Circuit Court Judge, sitting for KERN, Justice,

disqualified.

[¶26.]          SHELTON, Circuit Court Judge, sitting for SALTER, Justice,

disqualified.




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