Judge denies Buffalo Chip request to dismiss case

August 8, 2018

STURGIS — Fourth Circuit Judge Gordon Swanson has denied a motion by Buffalo Chip to dismiss the state’s case questioning the town’s incorporation.

Lawyers for the town of Buffalo Chip argued Tuesday, July 31, that the state has no legal basis for wanting to dissolve their incorporated community.

During the hearing Tuesday, Buffalo Chip attorney John Dorsey referred to an 1891 case which he interpreted to say that even the existence of a government subdivision formulated through outright fraud cannot be challenged.

The judge begs to differ.

Swanson notes in his ruling on Buffalo Chip’s motion to dismiss that in Dorsey’s referenced case the court held that the defacto corporation (Douglas County) was valid as to third parties and the public.

“The present case does not involve a challenge by third parties or by the public; but the State of South Dakota itself, which beyond a doubt has the authority to establish and enforce procedures for the creation and operation of government subdivisions,” Swanson wrote.

Dorsey also argued that the state’s authority to “inquire into” the regularity of a municipality has no real effect. And even if that inquiry shows that the city was improperly formed, nothing can be done about it after the county commission approved the incorporation.

Swanson said it strains logic to suggest that state law goes so far as to fully immunize the commission’s decision to approve the municipality’s formation from any review whatsoever.

“Although divining legislative intent can be a nebulous undertaking, it travails reason to suggest that the legislature intended the state’s ability to ‘inquire into’ the regularity of a city’s formation to mean that nothing can be done if that formation was found to have been done in contravention of the law,” Swanson wrote.

Dorsey also made other arguments for the dismissal, but Swanson said those arguments did not warrant a response.

Legal battles as to the incorporation of Buffalo Chip have ensued since a vote on the incorporation was scheduled by the Meade County Commission in May 2015. Despite opposition to the incorporation and a legal challenge from several Meade County residents and the city of Sturgis, the election was held, and a majority voted to incorporate Buffalo Chip.

Legal challenges have continued since, all the way to the state Supreme Court which on Jan. 25, 2018, ruled in favor of those seeking the incorporation, saying that any action challenging the incorporation of the town must be brought by the state.

Under state law, the state’s first step in the process was to seek permission from the State Supreme Court to intervene in the case. That was granted in March. On May 10 the Supreme Court denied the state’s request to proceed with the case at the Supreme Court level, but said they could bring action in circuit court.

Swanson’s denial of the motion to dismiss means the state, through its special assistant attorney general, James Moore, can continue to bring action against the incorporation.

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