# Oien v. City of Sioux Falls

> South Dakota Supreme Court · September 10, 1986 · 393 N.W.2d 286

URL: https://www.frixlaw.com/law-library/cases/9671696

## Case

- **Full name:** Kay L. OIEN, as Guardian Ad Litem for Her Minor Child, Casie Oien, Plaintiff and Appellant, v. the CITY OF SIOUX FALLS, Defendant and Appellee
- **Court:** South Dakota Supreme Court
- **Decided:** September 10, 1986
- **Citations:** 393 N.W.2d 286; 1986 S.D. LEXIS 318
- **Precedential status:** Published
- **Opinion:** Dissent by Wuest
- **Judges:** Morgan, Henderson, McKeever, Wuest, Fosheim, Sabers
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9671696

## Opinion text

WUEST, Chief Justice
(dissenting).
I dissent.
As stated in the majority opinion, the party asserting a statute is unconstitutional bears the burden of proving beyond a reasonable doubt the statute violates the constitution and there is a strong presumption the laws enacted by the legislature are constitutional. The majority cites cases, O’Rourke (1893), supra; Jensen (1938), supra; and Board of County Commissioners (1928), supra, concerning the difference *292 between proprietary and governmental functions.
In my opinion, such cases do not prove beyond a reasonable doubt that the park immunity statutes are unconstitutional. Nor, does appellant cite any competent authority or reasons to overturn those statutes. Governmental and proprietary functions are judge-made law, and in my opinion the legislature may change them and grant immunity as they have done by enacting the park statutes. Further, Article III, § 27 of the South Dakota Constitution, provides: “The legislature shall direct by law in what manner and in what courts suit may be brought against the State.” That provision regulates sovereign immunity and any diminishment of it must come from the legislature. High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980); Conway v. Humbert, 82 S.D. 317 , 145 N.W.2d 524 (1966).
I am authorized to state that Justice FOSHEIM joins in this dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9671696. Public record. Not legal advice.