observing that “a court may in its discretion decide to consider a constitutional issue raised for the first time on appeal because the question is a matter of considerable importance to the public policy of the state”
How later courts described this case
- observing that “a court may in its discretion decide to consider a constitutional issue raised for the first time on appeal because the question is a matter of considerable importance to the public policy of the state”
- "We must, however, emphasize this is merely a rule of procedure and not a matter of jurisdiction."
- separation of powers denies administrative “mini-judges” legitimacy — legislature created unconstitutional jurisdictional maze, as demonstrated in Sarver v. Dathe, 439 N.W.2d 548 (S.D.1989) (majority opinion) — Note: “Mini-judge” statutes have since been repealed by 1989 Legislature
- discussing the party presentation principle
Written by the judges who cited it.
The opinion
*448 MORGAN, Justice
(concurring specially).
I concur in the disposition of the substantive issues without comment, but I concur in the disposition of the constitutional issue solely upon the grounds that Appellant failed to notify the Attorney General pursuant to the provisions of SDCL 15-6-24(c), so as to give him an opportunity to intervene with regard to this important issue. Although Appellant attempts to raise the issue under the guise of jurisdiction, which can be raised at any stage of the proceeding, the issue is clearly grounded in the question of constitutionality. By statute, SDCL 23A-32-13, a defendant in a criminal proceedings may raise a constitutional issue for the first time on appeal. By our prior decision in Bayer v. Johnson, 349 N.W.2d 447 (S.D.1984), we have held that this court can decide a constitutional issue sua sponte where we have jurisdiction on other grounds, where the decision is decisive of the appeal, or when the point is one of law and not dependent on facts that might have been raised below had the point been there raised. Bayer is not an invitation to counsel to belatedly raise a constitutional issue at the appellate level in a civil or an administrative appeal.