Estate of Flaws (Yvette) , 885 N.W.2d 336 ( 2016 )

#27511-aff in pt & rev in pt-JMK
2016 S.D. 60
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
IN THE MATTER OF THE
ESTATE OF LORRAINE ISBURG FLAWS,
DECEASED.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
BRULE COUNTY, SOUTH DAKOTA
****
THE HONORABLE BRUCE V. ANDERSON
Judge
****
ROBERT R. SCHAUB of
Schaub Law Office, PC
Chamberlain, South Dakota
PAUL O. GODTLAND
Chamberlain, South Dakota Attorneys for appellants Audrey
Isburg Courser and Clinton
Baker.
DEREK A. NELSEN of
Fuller & Williamson, LLP
Sioux Falls, South Dakota
DAVID J. LARSON
Chamberlain, South Dakota
and
JONATHAN K. VAN PATTEN
Vermillion, South Dakota Attorneys for appellee Yvette
Herman.
****
ARGUED ON MARCH 22, 2016
OPINION FILED 08/31/16
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KERN, Justice
[¶1.] Decedent named heirs in her will, but all heirs predeceased her,
causing her estate to become subject to the laws of intestate succession. Decedent’s
brother had two children from his only marriage. These children were designated
as heirs. The circuit court determined that Decedent’s brother’s illegitimate
daughter was also an heir entitled to inherit equally from Decedent’s estate. In
reaching this decision, the circuit court found SDCL 29A-2-114(c) unconstitutional
as applied to the illegitimate daughter. The brother’s legitimate children appeal.
We reverse and remand.
BACKGROUND
[¶2.] On February 18, 2010, Lorraine Isburg Flaws, a member of the Crow
Creek Tribe, died testate. Lorraine’s will distributed her property to her husband
and her only child, both of whom predeceased her. Lorraine’s parents and Donald
Isburg, her only sibling, also predeceased her. Her will did not designate contingent
beneficiaries, making her estate subject to the laws of intestate succession. Under
the laws of intestate succession, Lorraine’s estate would pass to Donald’s children.
Donald had two children from his marriage to Mavis Baker: Audrey Isburg Courser
and Clinton Baker (Appellants). Donald also purportedly had two illegitimate
daughters from other relationships: Yvette Herman, born June 1, 1970, and Tamara
Isburg Allen, born October 11, 1965.
[¶3.] At the time of his death on August 24, 1979, Donald, a member of the
Crow Creek Tribe, owned tribal land held in trust by the United States
Government. Accordingly, the United States Department of the Interior, Bureau of
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Indian Affairs, Office of Hearings and Appeals, Probate Hearings Division
(collectively the Interior Board of Indian Appeals or IBIA) probated his estate. In
October 1980, the Crow Creek Bureau of Indian Affairs (BIA) Superintendent filed
a form entitled Data for Heirship Finding and Family History. This form disclosed
Donald’s assets and indicated that Audrey and Clinton, also enrolled members of
the Tribe, were Donald’s children.
[¶4.] In April 1981, a notice of probate hearing was mailed to potential
heirs, including his sister, Lorraine, and his legitimate children, Audrey and
Clinton. In a letter made under oath, Lorraine reported to the IBIA that she was
Donald’s sister and that Donald’s only children were Audrey and Clinton. The IBIA
completed the probate on June 8, 1981 and entered an order declaring Audrey and
Clinton to be the sole heirs of Donald’s estate. Audrey and Clinton inherited
Donald’s trust land in which he shared an ownership interest with Lorraine.
Audrey and Clinton became tenants in common with Lorraine. In July 2003, fee
simple patents were issued to Lorraine, Audrey, and Clinton, removing their land
from trust. At the time of Lorraine’s death in 2010, none of her land was held in
trust with the federal government.
[¶5.] This appeal concerns Yvette. She contends that, in addition to
Appellants, she is entitled to a share of Lorraine’s estate. 1 In order to receive a
share of Lorraine’s estate, Yvette must establish Donald’s paternity under SDCL
29A-2-114(c). SDCL 29A-2-114 provides in relevant part:
1. Tamara’s appeal is addressed in Estate of Flaws, 2016 S.D. 61, ____ N.W.2d
____.
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(a) For purposes of intestate succession by, from, or through a
person . . . an individual born out of wedlock is the child of that
individual’s birth parents.
....
(c) The identity of the mother of an individual born out of
wedlock is established by the birth of the child. The identity of
the father may be established by the subsequent marriage of the
parents, by a written acknowledgement by the father during the
child’s lifetime, by a judicial determination of paternity during
the father’s lifetime, or by a presentation of clear and convincing
proof in the proceeding to settle the father’s estate.
(Emphasis added.) Yvette concedes that Donald did not recognize her in writing
during his lifetime and that she was not judicially determined to be Donald’s child
prior to his death.
[¶6.] Yvette submits, however, that she has proven through DNA evidence
that she is Lorraine’s niece and Donald’s daughter. DNA samples submitted by
Yvette and Lorraine in 2005 established with 94.82% probability that Donald was
Yvette’s father. In 2008, relying on the DNA results, Yvette petitioned and received
from the Crow Creek Sioux Tribal Court an order of paternity identifying Donald as
her father. At Yvette’s request, the South Dakota Department of Health issued
Yvette a new birth certificate listing Donald as her father.
[¶7.] In early March 2010, after Lorraine’s death, Audrey filed a petition for
formal probate of Lorraine’s estate in state court. Audrey petitioned for
appointment as personal representative and to have Lorraine’s heirs judicially
determined. Tamara and Yvette objected to Audrey’s appointment and requested
appointment as co-personal representatives. After a hearing, the court appointed
attorney Stan Whiting as special administrator of the estate.
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[¶8.] In June 2010, Tamara and Yvette filed separate petitions with the
IBIA to reopen Donald’s probate to prove they were Donald’s daughters and heirs.
These requests were made 31 years after Donald died and 29 years after the
probate was closed. While this matter was pending with the IBIA, Audrey and
Clinton moved for partial summary judgment in state court against Yvette. They
alleged that Yvette lacked standing to assert she was an heir because she could not
satisfy any of the four methods set forth in SDCL 29A-2-114(c) to establish her
father’s identity. Yvette filed a motion contending that SDCL 29A-2-114 was
facially unconstitutional because it prohibited her right to recover as an illegitimate
child in violation of the Equal Protection Clause.
[¶9.] The circuit court agreed that Yvette could not comply with the first
three methods of proving paternity set forth in SDCL 29A-2-114(c). In an
incorporated memorandum decision and order, the court found that Yvette’s parents
did not marry, Donald did not acknowledge her in writing, and she was not
judicially determined to be his child during his lifetime. The court found that
Yvette’s petition to reopen Donald’s estate would likely take more than one year to
resolve and granted partial summary judgment to Audrey and Clinton. The court
denied Yvette’s constitutional challenge, holding that the statute did not “create an
insurmountable burden for” Yvette to inherit. Rather, according to the court, the
statute served as a “legitimate limitation on the right of the child” to prove her right
to inherit.
[¶10.] Yvette appealed the circuit court’s decision, raising several issues,
which we addressed in In re Estate of Flaws (Flaws I ), 2012 S.D. 3, 811 N.W.2d
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749. She argued that the four methods of establishing paternity set forth in SDCL
29A-2-114(c) did not foreclose other avenues of proof because “the identity of the
father may be established” in certain ways as listed. Id. ¶ 17, 811 N.W.2d at 753
(emphasis added). We held that the methods of establishing paternity were indeed
exclusive to those listed. Because Yvette could not satisfy any of the methods set
forth in SDCL 29A-2-114(c), we held that her only remaining option was to present
her proof in Donald’s estate. Yvette’s petition to reopen Donald’s estate was still
pending with the IBIA at the time of her appeal to this Court. Therefore, we
reversed and remanded to the circuit court to await the IBIA’s final determination
regarding Donald’s estate. We declined to address the issue regarding the
constitutionality of SDCL 29A-2-114.
[¶11.] In June 2011, the IBIA issued a show cause order, to which Appellants
responded. In April 2012, the Indian Probate Judge denied Yvette’s request to
reopen Donald’s probate. The probate court found that because the real property
had “passed out of trust” it was “no longer subject to the probate jurisdiction of the
Department of Interior.” Estate of Donald Isburg, 59 IBIA 101, 101, 2014 WL
4262746, at *1 (August 20, 2014). 2
[¶12.] In September 2014, Appellants again moved for partial summary
judgment in state court against Yvette, alleging she lacked standing to assert she
was an heir. In response, Yvette filed a second notice challenging the
2. Yvette appealed this order. In August 2014, the IBIA affirmed the denial of
the request to reopen Donald’s probate. This denial was not appealed to the
United States District Court.
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constitutionality of SDCL 29A-2-114. After a hearing, the court denied the motion
for partial summary judgment and set the matter for a court trial.
[¶13.] At the court trial in Lorraine’s estate court proceeding, Yvette again
presented evidence of Donald’s paternity, despite her inability to prove paternity by
any of the methods set forth in SDCL 29A-2-114(c). She also alleged the statute
was unconstitutional as applied. Yvette argued that the statute impermissibly
limited the forms of proof available to her as an illegitimate child in violation of the
Equal Protection Clause. Yvette contended that her DNA evidence should be
admissible in Lorraine’s estate proceedings as it is reliable and widely accepted as a
means to prove paternity. Additionally, she asserted that the State’s only interest
in this case was the avoidance of false claims. Because she filed her claim promptly
after Lorraine’s probate was opened, Yvette argued her claim had not delayed the
efficient administration of the estate. The court took the matter under advisement.
[¶14.] On June 9, 2015, the court issued an incorporated memorandum
decision and order denying Appellants’ motion for summary judgment. The court
made findings regarding Yvette’s paternity. The court found that Yvette’s mother
Joyzelle Gingway-Godfrey was romantically involved with Donald “during a time
frame consistent with Yvette’s conception.” Additionally, Donald provided some
financial assistance and visited Joyzelle and Yvette. In 2005, Yvette informed
Lorraine she planned to pursue genetic testing with Tamara to establish Donald’s
identity as her father. Lorraine offered to participate in the genetic testing instead
and voluntarily provided DNA samples. The DNA samples established with 94.82%
probability that Lorraine and Yvette are related as aunt and child. The court found
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the expert testimony regarding the DNA samples to be credible and scientifically
reliable. The court concluded that the “DNA evidence establishes conclusively that
Donald is Yvette’s father.”
[¶15.] With reference to Yvette’s constitutional challenge, the court declared
SDCL 29A-2-114 unconstitutional as applied to Yvette. The court held that “SDCL
§ 29A-2-114 undoubtedly makes a classification and distinction between illegitimate
and legitimate children.” While recognizing the State’s legitimate interests, the
court found they were not compelling. The circuit court found that Lorraine’s
probate was in its initial stages, and allowing Yvette’s claim did not delay the
efficient administration of the estate. Further, the court determined that the
State’s interest in avoiding false claims was not advanced by prohibiting Yvette
from presenting DNA evidence in Lorraine’s probate. Specifically, the court held
that the failure of the statute to allow for the use of DNA evidence was “not
substantially related to a legitimate government/state interest.” The court
acknowleded that SDCL 29A-2-114 was “adopted before DNA evidence was widely
accepted in the scientific and legal communities.” But the court noted that “the
[L]egislature has not kept up with modern means of establishing paternity or
heirship in this area of the law” and is “lagging behind the scientific realities of
today’s society.” Finding SDCL 29A-2-114 unconstitutional as applied to Yvette, the
court held that the statute “acts in an arbitrary and discriminatory manner without
justification, hides the truth, and works an injustice.”
[¶16.] On July 7, 2015, the court deined Appellants’ motion for summary
judgment and issued a judgment declaring heirship, finding Yvette “to be the child
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of Donald Isburg, and as such the niece and heir of Lorrain [sic] Isburg Flaws, on
equal footing with, and having the same rights and entitlements as Tamara Allen,
Audrey Isburg Courser, and Clinton Baker[.]” Appellants appeal the denial of their
motion for summary judgment and the court’s judgment declaring heirship.
[¶17.] We restate Appellants’ issues as follows:
1. Whether the circuit court erred by denying Appellants’ motion
for summary judgment.
2. Whether SDCL 29A-2-114(c) violates the Equal Protection
Clauses.
STANDARD OF REVIEW
[¶18.] A circuit court’s jurisdiction is reviewed de novo. Daktronics, Inc. v.
LBW Tech. Co., 2007 S.D. 80, ¶ 2, 737 N.W.2d 413, 416. Similarly, “[s]tatutory
interpretation and application are questions of law, and are reviewed by this Court
under the de novo standard of review.” State v. Powers, 2008 S.D. 119, ¶ 7, 758
N.W.2d 918, 920.
[¶19.] A circuit court’s findings of fact will be upheld “unless they are clearly
erroneous.” Kreps v. Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d 835, 843. A finding of
fact will be overturned on appeal if “a complete review of the evidence leaves the
Court with a definite and firm conviction that a mistake has been made.” Id.
(quoting Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 37, 759 N.W.2d 734, 743).
Conclusions of law are reviewed under the de novo standard of review. Tri-City
Assocs., L.P. v. Belmont, Inc. (Tri-City I), 2014 S.D. 23, ¶ 19, 845 N.W.2d 911, 916.
ANALYSIS
1. Whether the circuit court erred by denying Appellants’
motion for summary judgment.
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[¶20.] Appellants argue the circuit court erred in denying their motion for
summary judgment for two reasons. First, Appellants contend that to allow Yvette
to establish Donald’s paternity in Lorraine’s state court probate violates the
Supremacy Clause. Appellants argue the determination of Donald’s heirs must
occur only in Donald’s probate, which is in the exclusive jurisdiction of the
Department of the Interior. Second, Appellants submit that Yvette lacks standing
as her claims are untimely and barred by the statutes of limitations set forth in
SDCL 29A-3-412 and 43 C.F.R. § 30.243(a) (2016).
[¶21.] Yvette, in response, contends that the circuit court’s determination of
Lorraine’s heirs did not impose upon federal jurisdiction in any way. Nor did it
implicate the Supremacy Clause. She argues the BIA made no ruling on her claim
that she is Donald’s daughter. And accordingly the BIA’s decision does not affect
her “right to prove that she is Lorraine’s heir in Lorraine’s South Dakota probate[.]”
Yvette also contends that the statutes of limitations relied upon by Appellants are
inapplicable to the facts of her case and do not negate her standing. She also
alleges that the Appellants fail to cite the correct test to analyze standing.
a. Supremacy Clause
[¶22.] The United States Constitution article VI establishes the Constitution
of the United States as “the supreme Law of the Land[.]” U.S. Const. art. VI, cl. 2.
This supremacy is recognized in the South Dakota Constitution in article VI, § 26.
The South Dakota Constitution also expressly recognizes the supremacy of the
federal government in matters pertaining to Indian lands. It provides,
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That we, the people inhabiting the state of South Dakota, do
agree and declare that we forever disclaim all right and title
to . . . all lands lying within [the boundary of South Dakota]
owned or held by any Indian or Indian tribes . . . and said Indian
lands shall remain under the absolute jurisdiction and control of
the Congress of the United States . . . .
S.D. Const. art. XXII, § 2. The Supreme Court of the United States has similarly
restricted “the assertion of state regulatory authority over tribal reservations and
members” in two areas. White Mountain Apache Tribe v. Bracker, 448 U.S. 136,
142, 100 S. Ct. 2578, 2583, 65 L. Ed. 2d 665 (1980). First, a state’s “exercise of such
authority may be pre-empted by federal law.” Id. The second restriction applies
where the exercise of authority “may unlawfully infringe ‘on the right of reservation
Indians to make their own laws and be ruled by them.’” Id. (quoting Williams v.
Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 271, 3 L. Ed. 2d 251 (1959)).
[¶23.] There is a strong presumption against federal preemption. FMC Corp.
v. Holliday, 498 U.S. 52, 62, 111 S. Ct. 403, 410, 112 L. Ed. 2d 356 (1990) (noting
the “presumption that Congress does not intend to pre-empt areas of traditional
state regulation”). We begin “with the assumption that the States’ historic police
powers are not to be superseded, ‘[b]ut that presumption can be overcome where . . .
Congress has made clear its desire for pre-emption.’” Botz v. Omni Air Int’l, 286
F.3d 488, 493 (8th Cir. 2002) (quoting Egelhoff v. Breiner, 532 U.S. 141, 151, 121 S.
Ct. 1322, 1330, 149 L. Ed. 2d 264 (2001).
[¶24.] Federal preemption “occurs when Congress . . . expresses a clear intent
to pre-empt state law, . . . where there is implicit in federal law a barrier to state
regulation, where Congress has legislated comprehensively, . . . or where the state
law stands as an obstacle to the accomplishment and execution of the full objectives
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of Congress.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368-69, 106 S. Ct. 1890,
1898, 90 L. Ed. 2d 369 (1986) (citations omitted). See also Estate of Ducheneaux v.
Ducheneaux, 2015 S.D. 11, ¶ 11, 861 N.W.2d 519, 524.
[¶25.] We first address explicit federal preemption. Appellants contend that
the Supremacy Clause prohibits state “courts from ignoring the BIA’s determination
of Donald’s heirs and re-determining them.” They argue that, pursuant to 25 U.S.C.
§ 372, the BIA’s decisions are final and conclusive. 3 Appellants then direct us to a
number of cases in support of their position that the power to determine heirs rests
exclusively with the BIA. However, none of Lorraine’s property is held in trust by
the federal government. It is undisputed that Lorraine received a fee simple patent
from the federal government in 2003, removing her land from trust. Accordingly,
the bulk of Appellants’ authority is inapposite as the cited cases involve the
disposition of trust lands. 4 As the federal government has no property interest in
Lorraine’s assets, the statute is inapplicable.
3. 25 U.S.C. § 372 (2012) provides in part:
When any Indian to whom an allotment of land has been made,
or may hereafter be made, dies before the expiration of the trust
period and before the issuance of a fee simple patent, without
having made a will disposing of said allotment as hereinafter
provided, the Secretary of the Interior, upon notice and hearing,
under the Indian Land Consolidation Act [25 U.S.C.A. § 2201 et
seq.] or a tribal probate code approved under such Act and
pursuant to such rules as he may prescribe, shall ascertain the
legal heirs of such decedent, and his decisions shall be subject to
judicial review to the same extent as determinations rendered
under section 373 of this title.
4. Appellants direct us to Bertrand v. Doyle, 36 F.2d 351 (10th Cir. 1929), and
Spicer v. Coon, 238 P. 833 (Okla. 1925), in support of the proposition that
“the BIA’s conclusive right to determine heirs relates to all questions of
(continued . . . )
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[¶26.] Additional grounds for federal preemption occur where there is implicit
in federal law a barrier to state regulation or where the state law stands as an
obstacle to the accomplishment of the objectives of Congress. Estate of Ducheneaux,
2015 S.D. 11, ¶ 11, 861 N.W.2d at 524; Shaw v. Delta Air Lines, Inc., 463 U.S. 85,
95, 103 S. Ct. 2890, 2899, 77 L. Ed. 2d 490 (1983). Neither exists in this case. As
discussed above, 25 U.S.C. § 372 grants the Department of the Interior exclusive
jurisdiction and authority to probate Indian lands held in trust. The South Dakota
Constitution and our case law recognize this exclusivity. Appellants have not
established any barrier to the exercise of state court jurisdiction over non-trust
lands. Nor have Appellants shown that the exercise of state jurisdiction is
incompatible with a competing federal interest or contrary to the objectives of
Congress.
[¶27.] While it is evident that Congress intended to exercise jurisdiction over
probates of Indian lands held in trust, there is no evidence that Congress intended
to control probates of Indian estates involving non-trust land. See 25 U.S.C. § 2206
(2012). Such probates are treated the same as those of non-Indians owning fee
_____________________
( . . . continued)
heirship” and is not subject to review by the circuit court. Neither lends
support to Appellants’ position as both involve determination of heirship in
trust lands. The court in Bertrand stated, “The Act [25 U.S.C. § 372] clearly
applies to both past and future allotments and to all questions of heirship of
the allottee arising within the trust period.” Bertrand, 36 F.2d at 352
(emphasis added). In Spicer, the court addressed the issue whether state
courts had jurisdiction to review the Secretary of the Interior’s determination
of decedent’s heirs. 238 P. at 835. The court properly determined that “the
Secretary of the Interior was the sole tribunal for the determination of”
decedent’s heirs when decedent “died before the expiration of the trust period
without having disposed of his allotment by will[.]” Id. at 834-35.
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simple land. Congress has not created a federal probate code but instead relies
upon the states to establish their own probate codes. Congress, through federal
legislation, has limited its jurisdiction of probates to those involving Indian lands
held in trust. It is for this reason that the IBIA declined to exercise jurisdiction to
consider Tamara’s and Yvette’s petitions to reopen Donald’s estate. If Congress
intended to maintain exclusive jurisdiction over all probates involving Indians
under any circumstances, it would have enacted the necessary legislation to
accomplish this intent.
[¶28.] Appellants’ argument that the IBIA’s 1981 order determining Donald’s
heirs is binding and cannot be re-determined in Lorraine’s state court proceeding is
similarly unavailing. The existence of trust lands in which the United States
government has an interest is a jurisdictional prerequisite for preemption. Yvette’s
attempt to establish heirship in Lorraine’s state court proceeding will not infringe
upon the jurisdiction of the Secretary of the Interior. The circuit court did not err
by denying Appellants’ motion for summary judgment under the Supremacy Clause.
b. Standing
[¶29.] Appellants’ arguments that Yvette lacks standing to attack the
constitutionality of SDCL 29A-2-114(c) are misplaced. This Court has recognized
five requirements necessary to establish standing. An individual must establish:
(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.
Good Lance v. Black Hills Dialysis, LLC, 2015 S.D. 83, ¶ 12, 871 N.W.2d 639, 643-
44. Yvette satisfies all of the requirements necessary to establish standing. The
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injury alleged is personal to Yvette, “not a third party, and it is not a generalized
grievance of the population.” Id. ¶ 13, 871 N.W.2d at 644. Further, Yvette is
affected by the application of the statute and has an interest as she is “a person
belonging to the class allegedly discriminated against”—illegitimate children. See
State v. Reed, 75 S.D. 300, 302, 63 N.W.2d 803, 804 (1954). Yvette’s alleged injury
is within the interests protected by the Equal Protection Clause of the South
Dakota Constitution. And, if Yvette can demonstrate that SDCL 29A-2-114(c) is
unconstitutional as applied to her, redress may be granted by affirming the circuit
court’s order—allowing Yvette to inherit.
c. Statutes of Limitations
[¶30.] Lastly, we address whetherYvette’s claims are barred by the statutes
of limitations set forth in SDCL 29A-3-412 and 43 C.F.R. § 30.243(a). Appellants
first argue that because Yvette was not named as an heir in Donald’s estate before
it closed, Yvette’s claims are barred by SDCL 29A-3-412. This statute provides that
an individual may petition to vacate a probate order “twelve months after the entry
of order sought to be vacated.” Yvette, however, no longer seeks a determination of
heirship in Donald’s estate. The IBIA conclusively determined it lacked jurisdiction
to reopen the estate because the estate no longer contained any lands held in trust.
Yvette seeks a determination of heirship in Lorraine’s estate. Although SDCL 29A-
3-412 is applicable to Lorraine’s estate, Lorraine’s probate proceedings are in their
earliest stages. Her heirs have not been conclusively determined, assets have not
been divided, and no final order has been entered. SDCL 29A-3-412 is inapplicable.
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[¶31.] Similarly, Appellants’ argument that Yvette is barred from re-opening
Donald’s estate per 43 C.F.R. § 30.243(a) is meritless. 43 C.F.R. § 30.243 provides
that an interested party can petition to re-open a closed Indian probate “within 3
years after the date of the original decision and within 1 year after the petitioner’s
discovery of an alleged error.” But again, Yvette is not seeking to reopen Donald’s
estate. She seeks designation as Lorraine’s heir in Lorraine’s probate proceeding in
state court.
2. Whether SDCL 29A-2-114(c) violates the Equal Protection
Clauses.
[¶32.] Appellants argue that the circuit court exceeded its jurisdiction in
declaring SDCL 29A-2-114(c) unconstitutional as applied to Yvette. They contend
this Court directed the circuit court to wait for the IBIA’s decision before
proceeding. Appellants assert that after the IBIA refused to re-open Donald’s
probate, the circuit court should have promptly dismissed Yvette’s claims because
she conceded she could not meet the criteria of the statute. In response, Yvette
contends that because this Court’s opinion in Flaws I did not address the
constitutionality of SDCL 29A-2-114(c), she is not precluded from presenting her
constitutional claim.
[¶33.] We reserve the power to remit a “judgment or decision to the court
from which the appeal was taken, to be enforced accordingly . . . .” SDCL 15-30-14.
Upon remittal, a “circuit court’s jurisdiction must conform to the dictates of our
opinion.” State v. Piper, 2014 S.D. 2, ¶ 10, 842 N.W.2d 338, 343. In Flaws I, we
determined the circuit court did not err in finding that the methods and time limits
established in SDCL 29A-2-114(c) were exclusive. 2012 S.D. 3, ¶ 22, 811 N.W.2d at
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754. We declined to address Yvette’s argument that SDCL 29A-2-114 was
unconstitutional. Id. (citing Sheehan v. United Pac. Ins. Co., 439 N.W.2d 117, 119
(S.D. 1989)). We remanded the case directing the circuit court “to wait for a
reasonable time for the [IBIA’s] decision and to proceed accordingly.” Id. Because
we declined to address the constitutional arguments in Flaws I, the circuit court’s
conclusion that SDCL 29A-2-114(c) is unconstitutional as applied to Yvette does not
exceed the dictates of our opinion.
[¶34.] As the circuit court did not exceed its jurisdiction, we next consider
whether SDCL 29A-2-114(c) violates the Equal Protection Clauses of either the
United States or South Dakota Constitutions. “[A]lleged violations of constitutional
rights are reviewed de novo.” Good Lance, 2015 S.D. 83, ¶ 8, 871 N.W.2d at 643.
Yvette, as the party challenging the constitutionality of SDCL 29A-2-114(c), bears
the burden to prove beyond a reasonable doubt that the statute is unconstitutional.
Green v. Siegel, Barnett & Schutz, 1996 S.D. 146, ¶ 7, 557 N.W.2d 396, 398. We
begin with “a strong presumption that the laws enacted by the legislature are
constitutional and that presumption is rebutted only when it clearly, palpably and
plainly appears that the statute violates a constitutional provision.” Wuest v.
Winner Sch. Dist. 59-2, 2000 S.D. 42, ¶ 32, 607 N.W.2d 912, 919.
[¶35.] Appellants argue that SDCL 29A-2-114(c) does not violate the Equal
Protection Clause when read with other probate statutes as it does not create a
classification between legitimates and illegitimates. Additionally, Appellants
contend that even if a classification is created, such classification is not arbitrary.
Appellants assert that SDCL 29A-2-114(c) is substantially related to the State’s
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legitimate interests. Such interests include the orderly administration of estates,
“probate efficiency, certainty and the prompt determination of heirs.” In response,
Yvette submits that SDCL 29A-2-114(c) is unconstitutional as applied to her.
Yvette argues that, under the statute, she is discriminated against because she is
classified as an illegitimate. She argues that this “disparate treatment of
‘illegitimate’ children is not ‘substantially related,’ or even ‘rationally related,’ to
any government interest under these facts.”
[¶36.] The circuit court held that SDCL 29A-2-114(c) created a classification
between legitimate and illegitimate children as children were treated differently
depending on whether they were born in or out of wedlock. The court ruled that the
statute was unconstitutional as applied to Yvette because it prohibited her from
proving paternity with DNA evidence simply because Donald’s estate was closed.
The court concluded that “the failure to allow this . . . evidence . . . to inherit . . . is
NOT substantially related to a legitimate government/state interest.”
[¶37.] In analyzing whether SDCL 29A-2-114(c) impermissbly denies equal
protection of the law, we ask whether its terms are prohibited by the Fourteenth
Amendment of the United States Constitution or Article VI, § 18 of the South
Dakota Constiution. 5 Accounts Mgmt., Inc. v. Williams, 484 N.W.2d 297, 299 (S.D.
5. U.S. Const. amend. XIV, § 1 provides:
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
(continued . . . )
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1992). This Court employs a two-part test to examine whether a statute violates
either of the Equal Protection Clauses. Tibbs v. Moody Cty. Bd. of Comm’rs, 2014
S.D. 44, ¶ 6, 851 N.W.2d 208, 212; People in Interest of Z.B., 2008 S.D. 108, ¶ 7, 757
N.W.2d 595, 599. First, we determine whether SDCL 29A-2-114(c) creates “an
arbitrary classification among citizens[.]” Tibbs, 2014 S.D. 44, ¶ 6, 851 N.W.2d at
212. Second, we determine whether the statute is substantially related to
important government objectives because this case involves a classification based
upon illegitimacy. See Astrue v. Capato ex rel. B.N.C., --- U.S. ---, ---, 132 S. Ct.
2021, 2033, 182 L. Ed. 2d 887 (2012) (citing application of intermediate level of
scrutiny to classifications based upon illegitimacy); Clark v. Jeter, 486 U.S. 456,
461, 108 S. Ct. 1910, 1914, 100 L. Ed. 2d 465 (1988) (“To withstand intermediate
scrutiny, a statutory classification must be substantially related to an important
governmental objective.”).
[¶38.] In Lalli v. Lalli, the Supreme Court of the United States considered
the constitutionality of a New York paternity statute. 439 U.S. 259, 261-62, 99 S.
Ct. 518, 521, 58 L. Ed. 2d 503 (1978). The statute allowed an illegitimate child to
inherit from his father only if a court of competent jurisdiction entered an order of
paternity during the father’s lifetime. In finding the statute constitutional, the
Supreme Court determined the statute was related to important state objectives
including the orderly disposition of property at death. The Court also noted that
_____________________
( . . . continued)
S.D. Const. art. VI, § 18 provides, “No law shall be passed granting to any
citizen, class of citizens or corporation, privileges or immunities which upon
the same terms shall not equally belong to all citizens or corporations.”
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permitting the father to participate and defend in paternity proceedings furthered
the objective of reducing fraudulent claims.
[¶39.] Similarly, in In re Erbe, we reviewed the statutory procedures by
which an illegitimate child could inherit from her father. 457 N.W.2d 867, 869 (S.D.
1990). The case involved a constitutional challenge to SDCL 29-1-15, the precursor
to SDCL 29A-2-114(c). The provisions of SDCL 29-1-15 allowed an illegitimate
child to inherit from her father if he acknowledged her in writing in the presence of
a competent witness. Paternity could also be established if the parents married and
thereafter the father acknowledged the child as his own or adopted the child into his
family. In denying the constitutional challenge, we held that the statute properly
distinguished between the various categories of proof available to illegitimates to
establish paternity and was related to legitimate state interests. We acknowledged
that, to further its interests, the State may apply “‘a more demanding standard’ for
illegitimate children who seek to inherit from their father’s estate” in order to
promote the efficient administration of estates and avoid spurious claims. Erbe, 457
N.W.2d at 869 (quoting Lalli, 439 U.S. at 265, 99 S. Ct. at 523).
[¶40.] In applying this precedent to Yvette’s challenge, we agree with the
circuit court that SDCL 29A-2-114(c) creates a classification as it sets forth methods
by which an illegitimate child may inherit from her father. Although SDCL 29A-2-
114(c) creates a classification, Yvette must prove beyond a reasonable doubt that
SDCL 29A-2-114(c) cannot withstand intermediate scrutiny because it is not
substantially related to important government interests.
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[¶41.] Yvette claims that SDCL 29A-2-114(c), which limits her DNA evidence
only to proof in Donald’s estate, does not promote the orderly administration of
estates. She contends that she asserted her rights in Lorraine’s estate “early and
often,” and to allow her proof will not impede the probate. She relies primarily
upon Reed v. Campbell, 476 U.S. 852, 106 S. Ct. 2234, 90 L. Ed. 2d 858 (1986), for
the assertion that “a State’s interest in ‘finality’ is drastically curbed when the
‘administration of the estate is pending and in its initial stages.’” But, Reed is
clearly distinguishable.
[¶42.] In Reed, the Supreme Court of the United States reversed the Texas
Court of Appeals’ holding that an illegitimate child was unable to inherit from her
father’s estate. Id. at 853, 106 S. Ct. at 2236. At the time of Reed’s father’s death,
the probate code “prohibited an illegitimate child from inheriting from her father
unless her parents had subsequently married.” Id. at 853, 106 S. Ct. at 2236.
Reed’s father, who died intestate, was never legally married to her mother. While
the probate was pending, Reed, citing as authority a recently-released opinion from
the Supreme Court of the United States, Trimble v. Gordon, filed her claim to
inherit from her father’s estate. 430 U.S. 762, 772, 97 S. Ct. 1459, 1466, 52 L. Ed.
2d 31 (1977). The Court in Trimble held that a “total statutory disinheritance of
illegitimate children whose fathers die intestate” was unconstutional. Id. The trial
court denied Reed’s claim, holding that Trimble did not apply retroactively because
Reed’s father died four months before Trimble was decided and Reed’s claim was
filed after the decision. Reed, 776 U.S. at 856, 106 S. Ct. at 2237. The Supreme
Court of the United States reversed the decision. It concluded that Trimble could be
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applied retroactively because “neither the date of [decedent’s] death nor the date the
claim was filed had any impact on the relevant state interest in orderly
administration[.]” Id. at 856, 106 S. Ct. at 2238.
[¶43.] Yvette’s reliance upon Reed is misplaced. Unlike the statute in Reed,
SDCL 29A-2-114(c) does not preclude Yvette from being declared an heir solely
because of her status as an illegitimate child. Rather, Yvette’s claim fails because
she cannot satisfy any of the criteria for proving paternity set forth in SDCL 29A-2-
114(c). In Reed, the Court reiterated that a state may not discriminate against
“illegitimates in order to express its disapproval of their parents’ misdoconduct.” Id.
at 854, 106 S. Ct. 2237. But the Court acknowledged that states have an interest in
the orderly administration of estates and may create appropriate restrictions. Id. at
854-55, 106 S. Ct. at 2237. This interest “may justify the imposition of special
requirements upon an illegitimate child who asserts a right to inherit from her
father, and, of course, it justifies the enforcement of generally applicable limitations
on the time and the manner in which claims may be asserted.” Id. at 855, 106 S. Ct.
at 2237.
[¶44.] Accordingly, “[o]ur inquiry under the Equal Protection Clause does not
focus on the abstract ‘fairness’ of the statute, but on whether the statute’s relation
to the state interests it is intended to promote is so tenuous that it lacks the
rationality contemplated by the [Equal Protection Clause].” Erbe, 457 N.W.2d at
870. Few statutes “are entirely free from the criticism that they sometimes produce
inequitable results.” Id. SDCL 29A-2-114(c) is no different. The statute sets forth
the requirements which govern the orderly presentation and resolution of paternity
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claims including the opportunity to present proof in the father’s estate. Yvette
cannot satisfy any of the methods to establish paternity provided for in SDCL 29A-
2-114(c). Regardless of the potential for an unjust result, we cannot declare that
SDCL 29A-2-114(c) is unconstitutional solely because it does not permit Yvette to
introduce DNA evidence in Lorraine’s estate. Yvette has failed to meet her burden
of establishing beyond a reasonable doubt that the statute is not substantially
related to important governmental interests.
[¶45.] When interpreting legislation, this Court’s purpose “is to discover the
true intention of the law [as] ascertained primarily from the language expressed in
the statute. The intent of a statute is determined from what the legislature said,
rather than what the courts think it should have said.” City of Deadwood v. M.R.
Gustafson Family Tr., 2010 S.D. 5, ¶ 6, 777 N.W.2d 628, 631. We “cannot add
language that simply is not there.” Rowley v. S. Dakota Bd. of Pardons & Paroles,
2013 S.D. 6, ¶ 12, 826 N.W.2d 360, 365. Nor can we rewrite the langage of the
statute as this is an action reserved for the Legislature. Likewise, the circuit
court’s concern that the Legislature “has not kept up with modern means of
establishing paternity or heirship in this area of the law” is not grounds to find the
application of the statute unconstitutional.
CONCLUSION
[¶46.] The circuit court did not err in denying Appellants’ motion for
summary judgment. The state court probate of Lorraine’s estate is not prohibited
by the Supremacy Clause. Further, the court properly determined that Yvette had
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standing under Good Lance to bring her claims. Yvette’s claims are not barred by
the statutes of limitations set forth in SDCL 29A-3-412 and 43 C.F.R. § 30.243(a).
[¶47.] The circuit court did err, however, when it declared SDCL 29A-2-114(c)
unconstitutional as applied to Yvette. Although SDCL 29A-2-114(c) creates a
classification between legitimate and illegitimate children, we find it constitutional
as applied to Yvette under both our federal and state constitutions. The statute
does not unfairly discriminate against illegitimates. Rather, it sets forth reasonable
methods by which illegitimates may inherit and is substantially related to
important government interests. Under the statute, proof of paternity may occur by
the subsequent marriage of the parents, or by written acknowledgment, or judicial
determination during the father’s lifetime. The final method permits proof of
paternity in the father’s estate by clear and convincing evidence. This higher
standard of proof at this stage protects against spurious claims. The fact that
Yvette cannot satisfy any of the criteria set forth in SDCL 29A-2-114(c) does not
render the statute unconstitutional as applied. Although this may be an unjust
result, the remedy lies not with this Court. The decision to expand the provisions of
SDCL 29A-2-114(c) to permit other forms of proof, such as DNA evidence in
proceedings not limited to the father’s estate, is within the exclusive province of the
Legislature. We reverse and remand for entry of an order consistent with this
opinion.
[¶48.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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