551 N.W.2d 590 (S.D. 1996), 19426, Stumes v. Bloomberg

Docket Nº:19426.
Citation:551 N.W.2d 590, 1996 SD 93
Opinion Judge:The opinion of the court was delivered by: Amundson
Party Name:Norman STUMES, Plaintiff and Appellant, v. Jeff BLOOMBERG, Secretary of South Dakota Department of Corrections; Vernon L. Larson, South Dakota State Auditor; Tom Geraets, Commissioner of South Dakota Bureau of Administration; Carole Hillard, Lt. Governor of South Dakota; and Harvey Krautschun, Speaker of the South Dakota House of Representatives, D
Attorney:Norman Stumes, Sioux Falls, South Dakota, Pro se appellant.
Case Date:July 24, 1996
Court:Supreme Court of South Dakota
 
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Page 590

551 N.W.2d 590 (S.D. 1996)

1996 SD 93

Norman STUMES, Plaintiff and Appellant,

v.

Jeff BLOOMBERG, Secretary of South Dakota Department of

Corrections; Vernon L. Larson, South Dakota State Auditor;

Tom Geraets, Commissioner of South Dakota Bureau of

Administration; Carole Hillard, Lt. Governor of South

Dakota; and Harvey Krautschun, Speaker of the South Dakota

House of Representatives, Defendants and Appellees.

No. 19426.

Supreme Court of South Dakota.

July 24, 1996

Considered on Briefs April 25, 1996.

Page 591

Norman Stumes, Sioux Falls, pro se.

Mark W. Barnett, Atty. Gen., Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for defendants and appellees.

AMUNDSON, Justice.

¶1 Norman Stumes (Stumes) appeals the dismissal of his action against certain elected and appointed officials who played a part in either the enactment of, or in the implementation of, Chapter 140 of the 1995 South Dakota Session Laws (State). We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 House Bill 1359 was passed by both houses on the last day of the Seventieth Session of the South Dakota Legislature. Governor Janklow signed the bill into law on March 30, 1995. See 1995 S.D. Sess. L. ch. 140. This bill was a special appropriations bill that appropriated money to the Department of Corrections for the construction, repair, maintenance, and upgrading of existing and new correctional facilities.

¶3 Stumes has been incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota, since 1974. See State v. Stumes, 90 S.D. 382, 241 N.W.2d 587 (1976). He is serving a life sentence for first-degree manslaughter. Stumes attempted to file his complaint in Hughes County Circuit Court on July 25, 1995. However, Stumes did not perfect service until September 19, 1995. On October 17, 1995, the notice and admission of the summons and complaint were filed in circuit court. The pro se complaint requested the circuit court declare the special appropriations bill unconstitutional and prohibit the various officials from expending funds authorized under the bill. The complaint asserted that, since the bill was passed after midnight, in effect the bill was passed on the forty-first day of session. Article III, § 6, of the South Dakota Constitution states "[a] regular session of the Legislature shall be held in each odd-numbered year and shall not exceed forty legislative days...." Therefore, Stumes claims that House Bill 1359 is unconstitutional. The State filed a motion for dismissal of the complaint based on Stumes' alleged lack of standing and failure to state a claim upon which relief could

Page 592

be granted. Stumes filed a motion for judgment by default asserting the State failed to timely file its responsive pleading to Stumes' complaint.

¶4 The circuit court considered both motions and issued a memorandum decision and order on November 30, 1995. In the memorandum decision and order, the circuit court dismissed Stumes' complaint with prejudice, stating that Stumes did not have standing. The circuit court did not address Stumes' default motion. Stumes appeals, raising the following issues:

I. Whether a prisoner is a taxpayer with proper standing to bring suit to challenge the constitutionality of a special appropriations bill?

II. Whether the circuit court correctly determined the date which service was effected applicable to Stumes' motion for default judgment?

ANALYSIS

¶5 I. Whether a prisoner is a taxpayer with proper standing to bring suit to challenge the constitutionality of a special appropriations bill?

¶6 The action commenced by Stumes was dismissed via a motion made by State pursuant to SDCL 15-6-12(b)(2) and (5). A motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency of the pleading, not the facts which support it. Estate of Billings v. Deadwood Congregation, 506 N.W.2d 138, 140 (1993) (citing Hunt v. Hunt, 309 N.W.2d 818, 820 (S.D.1981)). For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. Johnson v. Kreiser's, Inc., 433 N.W.2d 225, 226 (S.D.1988); Janklow v. Viking Press, 378 N.W.2d 875, 877 (S.D.1985). "Our standard of review of a trial court's grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment--is the pleader entitled to judgment as a matter of law?" Billings, 506 N.W.2d at 140 (citing Jensen Ranch, Inc. v. Marsden, 440 N.W.2d 762, 764 (S.D.1989)).

¶7 Generally, standing is determined by using the "real party in interest" test. Wang v. Wang, 393 N.W.2d 771, 775 (S.D.1986) (Wang I ); SDCL 15-6-17(a). Under SDCL 15-6-17(a) "every action shall be prosecuted in the name of the real party in interest." This test is met if the claimant can prove " 'that he personally has suffered some actual or...

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