Cody v. Leapley, 17328

CourtSupreme Court of South Dakota
Citation476 N.W.2d 257
Docket NumberNo. 17328,17328
PartiesWilliam R. CODY and C.D., Plaintiffs and Appellants, v. Walter LEAPLEY and Greg Bartron, Defendants and Appellees.
Decision Date25 September 1991

Page 257

476 N.W.2d 257
William R. CODY and C.D., Plaintiffs and Appellants,
Walter LEAPLEY and Greg Bartron, Defendants and Appellees.
No. 17328.
Supreme Court of South Dakota.
Submitted on Briefs April 24, 1991.
Sept. 25, 1991.

Lee A. Tappe, Platte, for plaintiffs/appellants.

Mark Barnett, Atty. Gen., Pierre, Richard J. Helsper of Erickson, Helsper & O'Brien, Brookings, for defendants/appellees.

GILBERTSON, Circuit Judge.







The plaintiffs are husband and wife. Plaintiff William R. Cody (hereinafter Cody) is presently serving a life sentence in the South Dakota State Penitentiary for a conviction of a 1978 murder 1. At all times pertinent to this case, he was an inmate in that institution. Mrs. Cody (hereinafter C.D.) is not so incarcerated. Defendant Leapley is the current warden of the state penitentiary and has been so employed since May 1, 1989. Defendant Bartron is the former president of the South Dakota Board of Charities and Corrections.

In 1986 Cody was granted trustee status at the penitentiary. This allowed him to live in the trustee facility outside the prison walls. He became active in certain community projects and was allowed access to an office and the use of a computer by the prison authorities.

About this time, Cody also embarked upon a program he characterized as one of personal improvement and rehabilitation. He began making tapes about relaxation and also about matters concerning sex. Cody testified that these later concerns dealt with sexual disfunction in certain women. His claimed goal through what he described as "sexual fantasy therapy," was to assist these women with various sexual problems.

On January 21, 1988, Clyde Hagen, then administrative assistant to the now retired Warden Solem, ordered Cody's trustee status revoked and Cody returned behind the prison walls. The basis for this revocation was Hagen's belief that Cody was planning an escape. After further investigation, prison officials also claimed Cody abused his trustee status by violating visitation rules which resulted in a nude photograph of C.D. being taken by Cody on prison grounds at the trustee cottage and subsequently sent to various individuals outside the penitentiary. Also, prison officials claim Cody was "abusing his mail privileges for the purpose of fraudulently obtaining pecuniary gain." After further investigation and a prison administrative

Page 259

classification board hearing, the Defendants claim Hagen's actions were upheld by Warden Solem.

At the time of Cody's return into the prison, certain items in the trustee office were retained by prison officials. These items are the source of this litigation. They appear to be notebooks, computer disks, and various documents. The notebooks contain correspondence to and from persons identified as Charcot, Cody or Revere to various individuals throughout the country. Much of the content of these letters is of an explicit sexual nature. Cody claims these are his letters and replies received. Written transcripts of audio tapes described as "sexual arousal tape recordings" were also included in the seized material. He states that these letters and documents were part of his rehabilitation program which would be used in his effort to win a commutation. 2 Also contained in the items seized are numerous photographs. Many show naked females and males. Some also show individuals engaged in various sexual activities. Cody claims these photographs are his property which were also used in his rehabilitation program.

While in prison, Cody became married to C.D. She apparently visited him at the trustee facility and through furloughs Cody was granted. The Codys allege that the items seized contain intimate marital photographs of themselves. The Codys wish these photographs returned to them and maintain it would cause them embarrassment if the pictures were made public. They claim to already have suffered emotional distress upon learning that these photographs have been viewed by certain prison and state officials.

The defendants view the items seized and Cody's activities in a different light. They characterize the items seized as "pornographic materials" and accuse Cody of operating, under a fictitious name, a "repugnant 'commercial venture' whereby he (Cody) was distributing sexual fantasy tapes to individuals who had advertised in various pornographic magazines." The defendants found the material unnecessary to Cody's rehabilitation.

Cody and C.D. attempted informally to secure the property seized by the prison officials. These attempts were unsuccessful. Thereafter, Cody and C.D. filed a declaratory judgment action against the Defendants seeking return of the property and damages.


After the plaintiffs filed suit, the defendants turned over the seized items still in their possession to the trial court pending a determination of the litigation. The defendants also filed repeated motions for summary judgment at various stages of the proceedings based on the doctrine of sovereign immunity and the notification requirements found in SDCL 3-21-2 and 3.

At a pretrial hearing, it was agreed that the trial was to be bifurcated. The initial part of the trial would be held to determine if the Codys could establish their ownership and right to possession of the property. The issue of any liability for damages would be reserved for a later date.

The first portion of the trial concerning ownership was held on April 10, and 11, 1990. At that proceeding, by stipulation of counsel, exhibits 25 through 40 were returned to the plaintiffs. However, plaintiffs reserved their right to seek damages for the purported wrongful seizure of these exhibits. Thus, the dispute over ownership was reduced to items that were marked exhibits 1-24. 3 At that time, plaintiffs testified generally concerning their claimed

Page 260

ownership of the seized documents and that the items were either necessary for Mr. Cody's rehabilitation or intimate personal papers and photographs. The defendants continued to argue that they were nothing more than pornography.

During the course of this trial, the plaintiffs and their attorney 4 made an intentional tactical decision not to introduce exhibits 1-24 into evidence. Their rationale was that if the documents were to become exhibits, and thus part of the trial record, the content would become public and defeat the Codys' goal of securing a totally confidential return of their personal property. Thus, the trial court never had a chance to view the items marked as exhibits 1-24.

Upon completion of the testimony, the trial court entered findings of fact and conclusions of law that the Codys had failed in their burden of proof to establish their ownership of this property.

After the trial court's ruling, the defendants again renewed their motion for summary judgment on the balance of the plaintiff's complaint based on the doctrine of sovereign immunity and the purported failure of plaintiffs to comply with the notification requirements of SDCL 3-21-2 and 3. The trial court granted that motion. This appeal followed.



a. Sovereign immunity and the cause of action to recover

possession of the property.

Defendants initially argue that the plaintiffs' cause of action for possession of exhibits 1-24 is prohibited by sovereign immunity and therefore this Court is jurisdictionally barred from a review of the trial court's findings of fact and conclusions of law on this issue. "It is the rule in this state that jurisdiction must affirmatively appear from the record and this court is required sua sponte to take note of jurisdictional deficiencies, whether presented by the parties or not." State v. Phipps, 406 N.W.2d 146, 148 (S.D.1987) citing State v. Huftile, 367 N.W.2d 193, 195 (S.D.1985) (emphasis original). Defendants note that they are sued in their representative capacity, rather than individually, and therefore the suit is actually against the State of South Dakota. See High-Grade Oil v. Sommer, 295 N.W.2d 736, 737 (S.D.1980).

The doctrine of sovereign immunity, as established by Article III, Sec. 27, of the South Dakota Constitution, must not be viewed in isolation, but must be interpreted along with the balance of that document when a determination is made as to whether the plaintiffs are barred from pursuing their claim.

Plaintiffs' complaint alleges that the defendants wrongfully seized plaintiffs' property. Thus, Article VI, Sec. 13 of the South Dakota Constitution may apply. It states, "Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the Legislature...." While this provision has, in the past, been generally concerned with cases involving real property, 5 the article covers all "private property." Thus, it clearly also includes personal property. SDCL 43-1-3. State ex rel. Grigsby v. Buechler, 10 S.D. 156, 72 N.W. 114, 116 (1897); S.D. Dept. of Health v. Owen, 350 N.W.2d 48, 51-52 (S.D.1984).

Given the nature of the request for return of exhibits 1-24 contained in plaintiffs' complaint, a specific statute, SDCL 21-32-8, implements this constitutional protection.

In any and all actions to determine adverse claims to real or personal property, or involving possession of real or personal property, or to foreclose mortgages or other liens upon real or personal property, or to partition the same, the state of South Dakota may be sued...

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  • Hamen v. Hamlin Cnty.
    • United States
    • Supreme Court of South Dakota
    • 10 Febrero 2021
    ...where the state establishes that its actions were done under its police power such as to abate a public nuisance." Cody v. Leapley , 476 N.W.2d 257, 261 (S.D. 1991). See also Schafer v. Deuel Cnty. Bd. of Comm'rs , 2006 S.D. 106, ¶ 11, 725 N.W.2d 241, 245 ("Although it is axiomatic that pri......
  • State v. Krahwinkel, 22335.
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    • 23 Diciembre 2002
    ...under Art. VI, § 2 of the South Dakota Constitution and the Fourteenth Amendment to the United States Constitution. In Cody v. Leapley, 476 N.W.2d 257, 260 (S.D.1991), we said that "where the [L]egislature, in the implementation of its constitutional powers, provides for penalties, such as ......
  • State v. Geise, 22368.
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    • 23 Diciembre 2002
    ...under Art. VI, § 2 of the South Dakota Constitution and the Fourteenth Amendment to the United States Constitution. In Cody v. Leapley, 476 N.W.2d 257, 260 (S.D.1991), we said that "where the [L]egislature, in the implementation of its constitutional powers, provides for penalties, such as ......
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    ...relying on it." Brandner, 78 S.D. at 577, 105 N.W.2d at 666. Brandner's holding in this regard was recently reaffirmed in Cody v. Leapley, 476 N.W.2d 257 (S.D.1991) where this Court if the cause of action is independent of the notice requirement, such as is the case herein in regard to a cl......
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