#26477-rev & rem-GAS

2013 S.D. 43

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellant,

      v.

MICHAEL CLEMENTS,                         Defendant and Appellee.

                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                    BROWN COUNTY, SOUTH DAKOTA

                                 ****

                     THE HONORABLE SCOTT P. MYREN
                                Judge

                                 ****


MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellant.

MARSHALL C. LOVRIEN of
Bantz, Gosch, & Cremer, LLC
Aberdeen, South Dakota                    Attorneys for defendant
                                          and appellee.


                                 ****
                                          CONSIDERED ON BRIEFS
                                          ON MARCH 18, 2013

                                          OPINION FILED 06/12/13
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SEVERSON, Justice

[¶1.]        The State charged Michael Clements with bigamy. The trial court

dismissed the information against Clements, concluding that bigamy is legally

impossible to commit in South Dakota. The State appeals the dismissal. We

reverse and remand.

                                  BACKGROUND

[¶2.]        The facts in this case are undisputed. Michael Clements married

Kristi Anderson in Ashley, North Dakota on December 6, 2009. Anderson filed for

divorce from Clements on April 15, 2011. Before the divorce was finalized, on June

14, 2011, Clements and Alicia Bjerke applied for and were granted a marriage

license in Brown County, South Dakota. On the same day, Clements and Bjerke

participated in a marriage ceremony at the Brown County Clerk of Courts office.

Both Clements and Bjerke consented to participate in the ceremony, and a

solemnization of the ceremony occurred. The marriage license was filed with the

Brown County Register of Deeds on June 15, 2011.

[¶3.]        On August 4, 2011, the State charged Clements with bigamy in

violation of SDCL 22-22A-1. On November 10, 2011, Clements moved to dismiss

the complaint, arguing that the State failed to state a public offense. The trial court

held a hearing on November 29, 2011. The trial court then granted the motion to

dismiss via a memorandum decision, which was withdrawn on February 1, 2012,

because of the trial court’s mistaken understanding that the parties had stipulated

to the facts stated in the memorandum decision.



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[¶4.]        The State filed an information on January 30, 2012, again charging

Clements with bigamy in violation of SDCL 22-22A-1. Clements was arraigned on

March 6, 2012, and pleaded not guilty to the charge of bigamy. Clements again

moved to dismiss on March 6, 2012. A statement of stipulated facts was entered by

both parties on March 14, 2012. The trial court again granted the motion to dismiss

by memorandum decision on June 1, 2012 and filed findings of fact and conclusions

of law in the case on August 20, 2012. The trial court filed an order granting the

motion to dismiss on August 29, 2012, and an amended order granting the motion to

dismiss on September 4, 2012, based on the failure to state a public offense in

violation of SDCL 23A-8-2(5).

[¶5.]        The State appeals, arguing that the trial court erred in granting the

motion to dismiss the information under SDCL 23A-8-2(5).

                             STANDARD OF REVIEW

[¶6.]        The sufficiency of an indictment or information is a question of law,

which we review de novo. State v. Fisher, 2013 S.D. 23, ¶ 28, 828 N.W.2d 795, 803

(citing State v. Goodroad, 521 N.W.2d 433, 434-36 (S.D. 1994)). We review a trial

court’s interpretation of a statute de novo because the interpretation of a statute is

a question of law. Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600,

611 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17).

                                   DISCUSSION

[¶7.]        SDCL 22-22A-1 prohibits bigamy and makes it a criminal offense.

That statute provides:



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            Any person who, while married to another presently living
            person, marries any other person, is guilty of bigamy. The
            provisions of this section do not apply to:
                   (1) Any person, if that person’s husband or wife has been
                       absent for five successive years and is not known to be
                       living by such person;
                   (2) Any person, if that person’s husband or wife has
                       absented himself or herself from such spouse by being
                       outside the United States, continuously for at least
                       five years;
                   (3) Any person, if that person’s marriage has been
                       pronounced void, annulled, or dissolved by a
                       competent court; or
                   (4) Any person, presently married, who believes, in good
                       faith, and has reason to believe, that the marriage has
                       been pronounced void, annulled, or dissolved by a
                       competent court.

            Bigamy is a Class 6 felony.

SDCL 22-22A-1. A bigamous marriage is void ab initio, meaning that the marriage

is “null and void from the beginning[.]” SDCL 25-1-8. 1 The terms “marriage” or

“marry” are not defined in South Dakota’s criminal statutes, but “marriage” is

defined in SDCL Title 25, which addresses domestic relations. “Marriage is a


1.    SDCL 25-1-8 provides:

            A subsequent marriage contracted by any person during the life
            of a former husband or wife of such person with any person
            other than such former husband or wife, is null and void from
            the beginning, unless the former marriage has been annulled or
            dissolved, or unless such former husband or wife was absent and
            not known to such person to be living for the space of five
            successive years immediately preceding such subsequent
            marriage, or was generally reputed and was believed by such
            person to be dead at the time such subsequent marriage was
            contracted, in either of which cases the subsequent marriage is
            valid until its nullity is adjudged by a competent tribunal.


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personal relation, between a man and a woman, arising out of a civil contract to

which the consent of parties capable of making it is necessary. Consent alone does

not constitute a marriage; it must be followed by a solemnization.” SDCL 25-1-1.

[¶8.]        Clements argues that because a bigamous marriage is void ab initio

according to SDCL 25-1-8, he was never legally married the second time, and thus,

it is legally impossible to prosecute him for bigamy. The trial court accepted this

argument when it dismissed the information based on a failure to state a public

offense. However, when we review statutes, we consider them in context. “‘Since

statutes must be construed according to their intent, the intent must be determined

from the statute as a whole, as well as enactments relating to the same subject.’”

Martinmaas, 2000 S.D. 85, ¶ 49, 612 N.W.2d at 611 (quoting Moss, 1996 S.D. 76, ¶

10, 551 N.W.2d at 17). “‘Where statutes appear to be contradictory, it is the duty of

the court to reconcile them and to give effect, if possible, to all provisions under

consideration, construing them together to make them harmonious and workable.’”

In re Collins, 85 S.D. 375, 382, 182 N.W.2d 335, 339 (1970) (quoting In re Heartland

Consumers Power Dist., 85 S.D. 205, 221, 180 N.W.2d 398, 407 (1970)). See also N.

Cent. Inv. Co. v. Vander Vorste, 81 S.D. 340, 345, 135 N.W.2d 23, 27 (1965).

[¶9.]        Dismissing the information on the basis that bigamy is a legal

impossibility nullifies the statute providing for criminal prosecution of bigamy. We

construe statutes together to give legal effect to all of the provisions in the statutes.

See In re Collins, 85 S.D. at 382, 182 N.W.2d at 339. When presented with similar

cases, other courts have determined that legal impossibility cannot be a defense to

bigamy. “In other words, civil statues rendering bigamous marriages void ab initio

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do not exonerate defendants charged with bigamy[.]” United States v. Ali, 557 F.3d

715, 721 (6th Cir. 2009). In one such case, the Missouri Supreme Court held:

             [I]t is the appearing to contract a second marriage and going
             through the ceremony which constitutes the crime of bigamy;
             otherwise it could never exist in ordinary cases, as a previous
             marriage always renders null and void a marriage that is
             celebrated afterward by either of the parties during the lifetime
             of the other.

State v. Eden, 169 S.W.2d 342, 345-46 (Mo. 1943) (citation omitted). In another

case, the North Carolina Supreme Court held that “[a] man takes a wife lawfully,

when the contract is lawfully made. He takes a wife unlawfully, when the contract

is unlawfully made—and this unlawful contract the law punishes.” State v.

Patterson, 24 N.C. (2 Ired.) 346, 356 (N.C. 1842).

[¶10.]       In addition, the Kansas Supreme Court noted, “[a]doption of the rule

pronounced by the trial court would effectively erase the crime of bigamy from our

law, an unreasonable interpretation and one clearly contrary to the specific

legislative intent.” State v. Fitzgerald, 726 P.2d 1344, 1347 (Kan. 1986). The court

held that “when a person enters into a purported marriage contract or relationship

at a time when the person already has a living spouse, the crime of bigamy has been

committed.” Id. In order to give meaning and effect to the enactment of SDCL 22-

22A-1, which criminalizes bigamy, we adopt the view of the Kansas Supreme Court

that bigamy is committed “when a person enters into a purported marriage contract

or relationship at a time when the person already has a living spouse[.]” Fitzgerald,

726 P.2d at 1347.




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                                 CONCLUSION

[¶11.]      We reverse the trial court’s decision to dismiss the information against

Clements, and we remand for further proceedings.

[¶12.]      GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

WILBUR, Justices, concur.




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