#28263, 28264-aff in pt & rev in pt-SRJ 

2018 S.D. 16 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

#28263 

IN RE: THE MATTER OF THE 

ISSUANCE OF A SUMMONS 

COMPELLING AN ESSENTIAL 

WITNESS TO APPEAR AND 

TESTIFY IN THE STATE OF 

MINNESOTA 

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#28264 

IN RE: THE MATTER OF THE 

ISSUANCE OF A SUMMONS 

COMPELLING AN ESSENTIAL 

WITNESS TO APPEAR AND 

TESTIFY IN THE STATE OF 

MINNESOTA 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE THIRD JUDICIAL CIRCUIT 

MOODY COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE PATRICK T. PARDY 

Judge 

* * * * 

CONSIDERED ON BRIEFS 

JANUARY 8, 2018 

 OPINION FILED 02/14/18 
JASON UNGER 

Flandreau, South Dakota Attorney for Appellants, 

M.M.W. & William Joseph 

Wilkie. 

MARTY J. JACKLEY 

Attorney General 

CRAIG M. EICHSTADT 

Assistant Attorney General Attorneys for Appellee, 

Pierre, South Dakota State of South Dakota. 
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JENSEN, Justice 

[¶1.] Appellant William Joseph Wilkie (Wilkie) and his granddaughter, 

Appellant M.M.W., each appeal the entry of a circuit court order in two separate 

proceedings. The orders summon Wilkie and M.M.W. to appear and testify in an 

out-of-state criminal proceeding in Clay County, Minnesota. We consolidate the 

cases for resolution of their appeals. Wilkie and M.M.W. claim their rights as 

victims were violated because they were not advised of their right to counsel during 

the circuit court proceedings. They also claim the circuit court erred in issuing the 

orders. We affirm the order pertaining to Wilkie and reverse and remand the order 

pertaining to M.M.W. 

Background 

[¶2.] Dustin James Wilkie (Dustin), Wilkie’s son and M.M.W.’s father, was 

charged with domestic assault of M.M.W. in Minnesota. M.M.W. immediately 

called her grandfather after the alleged assault to report the incident. M.M.W. 

subsequently moved to South Dakota to live with Wilkie. The State of Minnesota 

sought to summon Wilkie and M.M.W. as witnesses at Dustin’s trial. 

[¶3.] On April 26, 2017, a judge of the Seventh Judicial District of the State 

of Minnesota issued two certificates declaring Wilkie and M.M.W. necessary and 

material witnesses in the prosecution of the criminal action against Dustin. The 

certificates also stated there were no known hardships for either witness to testify. 

The certificates were supported by affidavits submitted by the Clay County, 

Minnesota prosecuting attorney, setting forth the facts in support of the request to 

summon the testimony of Wilkie and M.M.W. The certificates directed Wilkie and 
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M.M.W. to be available to testify for one to three days in May of 2017 in Moorhead, 

Minnesota, an approximate three-hour drive from Flandreau, South Dakota, where 

Wilkie and M.M.W. were living. 

[¶4.] The Minnesota certificates were issued in conformity with the Uniform 

Act to Secure the Attendance of Witnesses from Without a State in Criminal 

Proceedings (Uniform Act), codified at SDCL 23A-14-14 through SDCL 23A-14-24. 

Upon receipt of the Minnesota certificates, the Moody County State’s Attorney filed 

a motion requesting the South Dakota circuit court to enter an order summoning 

Wilkie and M.M.W. to appear and testify in the Minnesota criminal proceeding. 

Pursuant to SDCL 23A-14-151 and SDCL 23A-14-16,2 the circuit court ordered 

Wilkie and M.M.W. to attend a hearing in Flandreau on May 8, 2017, to show cause 

 

1. SDCL 23A-14-15 provides: 

 If a judge of a court of record in any state . . . certifies under the 

seal of such court that there is a criminal prosecution pending in 

that court, . . . that a person in this state is a material witness in 

such prosecution[,] . . . and that his presence will be required for 

a specified number of days, a South Dakota circuit judge of the 

county in which such person is, shall, upon presentation of such 

certificate, fix a time and place for a hearing, and shall make an 

order directing the witness to appear at the hearing. 

2. SDCL 23A-14-16 provides: 

 If a hearing is ordered pursuant to § 23A-14-15 and a judge 

determines that a witness is material and necessary [and] that 

it will not cause undue hardship to the witness to be compelled 

to attend and testify in the prosecution[,] . . . [the judge] shall 

issue a summons, with a copy of the certificate attached, 

directing the witness to attend and testify in the court where the 

prosecution is pending . . . at a time and place specified in the 

summons. In any such hearing the certificate shall be prima 

facie evidence of all the facts stated therein. 
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why they should not be ordered to attend and testify in the Minnesota criminal 

case. On the date of the hearing, Wilkie and M.M.W. mistakenly drove to 

Moorhead, Minnesota, believing the hearing would be held there. By the time the 

mistake was realized, it was impossible for the pair to travel back to Flandreau in 

time for the hearing. The circuit court allowed Wilkie to voice his objections to the 

State’s motion over the telephone. 

[¶5.] Wilkie and M.M.W. were unrepresented by counsel at the hearing, and 

the circuit court did not advise or discuss consultation with an attorney. Wilkie 

represented over the phone that M.M.W. had “a rough year in the past year” and 

was seeing a counselor. Wilkie also stated that he did not want M.M.W. to have to 

relive the incident by testifying and that it was “starting to cost [Wilkie] a lot of 

money to go back-and-forth.” The circuit court stated that it had reviewed a letter 

from M.M.W.’s counselor dated May 5, 2017. 

[¶6.] The court determined that Wilkie had failed to show a personal 

hardship. As to M.M.W., the court noted the severity of the underlying charges 

against M.M.W.’s father and the belief that the State of Minnesota could implement 

procedures to protect M.M.W. upon her request. The circuit court entered orders 

directing both Wilkie and M.M.W. to appear and testify as witnesses at the 

Minnesota trial. 

[¶7.] Wilkie and M.M.W. raise two issues for our review: 

1. Whether Wilkie and M.M.W.’s rights as victims were violated 

by not being advised of their right to counsel. 

2. Whether the circuit court erred in issuing an order for Wilkie 

and M.M.W. to appear and testify in Minnesota criminal 

court. 
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Analysis 

Jurisdiction 

[¶8.] In its brief, the State requests this Court to dismiss the appeal for lack 

of jurisdiction. The State argues this Court lacks appellate jurisdiction because 

there is not a criminal statute conferring such jurisdiction in SDCL chapter 23A-32. 

The State correctly notes that “[t]his Court has only ‘such appellate jurisdiction as 

may be provided by the legislature. The right to appeal is statutory and therefore 

does not exist in the absence of a statute permitting it.’” State v. Schwaller, 2006 

S.D. 30, ¶ 5, 712 N.W.2d 869, 871 (quoting Dale v. City of Sioux Falls, 2003 S.D. 

124, ¶ 6, 670 N.W.2d 892, 894). 

[¶9.] The State’s argument is premised on its categorization of the appealed 

orders as criminal matters. The State recognizes the possibility that the 

proceedings are civil in nature, citing Codey ex rel. State of New Jersey v. Capital 

Cities, American Broadcasting Corp., 626 N.E.2d 636 (N.Y. 1993), and acknowledges 

that if the proceedings are civil, then the case may be appealable under SDCL 15-

26A-3(2) or (4). Wilkie and M.M.W. assert that the case is properly appealed as a 

matter of right under SDCL 15-26A-3 and SDCL 15-26A-4. 

[¶10.] In Codey, the Court of Appeals of New York determined that 

proceedings to summon a witness under the Uniform Act are civil proceedings. 626 

N.E.2d at 640. The court stated that an order determining the “validity and force of 

another State’s demand for a witness’s appearance . . . is analytically analogous to a 

motion to quash a subpoena, which is ordinarily deemed civil in nature.” Id. 
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[¶11.] We conclude a proceeding to summon a witness to testify in an out-ofstate criminal proceeding under SDCL 23A-14-14 through SDCL 23A-14-18 is a civil 

proceeding.3 Although the South Dakota proceedings are ancillary to a criminal 

proceeding in another state and the governing statutes are found in the criminal 

procedure section of the South Dakota Code, the proceedings do not involve the 

arrest, charge, or punishment of an individual for a public offense. Rather, the 

proceedings represent the circuit court’s determination whether a witness is 

material and necessary, and whether the summons will cause the witness undue 

hardship under SDCL 23A-14-16. These determinations are civil in nature and do 

not implicate the resolution of a criminal charge. Thus, this Court has jurisdiction 

to consider the appeals from these orders as a “final order affecting a substantial 

right, made in special proceedings” under SDCL 15-26A-3(4).

State’s Motion to Strike

[¶12.] The State also moves this Court to strike certain statements and 

materials referenced by Wilkie and M.M.W. in their briefs. First, Wilkie and 

M.M.W. reference motions they filed to stay the orders summoning their testimony 

pending their appeals and the circuit court’s denial of the motions for lack of 

jurisdiction. The State concedes the motions are in the record, but the record does 

 

3. Even though this proceeding is civil in nature, the entry of an order 

placing a witness into the custody of an officer of a requesting state 

under SDCL 23A-14-17, or a criminal contempt application under 

SDCL 23A-14-18, may give rise to a constitutional right to counsel. We 

have previously recognized that a criminal contempt citation in a civil 

proceeding triggers constitutional protections. Sazama v. State ex rel. 

Muilenberg, 2007 S.D. 17, ¶ 24, 729 N.W.2d 335, 344. 
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not contain a ruling or a transcript of a hearing. Second, the State asks to strike 

references by Wilkie and M.M.W. concerning further proceedings in the Minnesota 

criminal case while these appeals were pending. The record does not contain 

evidence of such proceedings. Because the contested references are not material to 

this appeal, we do not consider these references.

Victim’s Right to Counsel

[¶13.] Wilkie and M.M.W. argue that the recent amendment found in the 

South Dakota Constitution, article VI, § 29, approved by South Dakota voters in 

November of 2016, otherwise known as Marsy’s Law, guarantees crime victims the 

right to be informed that they may consult an attorney about their rights as 

victims.4 They suggest this right is commensurate with a criminal defendant’s 

Sixth Amendment right to the assistance of counsel. Wilkie and M.M.W. argue 

that, at a minimum, they were deprived of their rights under Marsy’s Law because 

they were not properly notified of their right to consult an attorney. The State 

responds that Minnesota law applies to this proceeding. The State also argues that 

the victim rights set forth in South Dakota’s Constitution are not applicable to a 

crime committed outside South Dakota. Finally, the State asserts that even if 

 

4. Specifically, Article VI, § 29 of the South Dakota Constitution provides: 

A victim shall have the following rights, beginning at the time of 

victimization: 

. . . . 

19. The right to be informed of these rights, and to be informed that 

a victim can seek the advice of an attorney with respect to the victim’s 

rights. This information shall be made available to the general public 

and provided to each crime victim in what is referred to as a Marsy’s 

Card. 
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Marsy’s Law is applicable, Wilkie and M.M.W. are not entitled to the appointment 

of counsel but at most, to be advised of a right to consult with an attorney. To 

resolve this issue, we only address the narrow question whether the Marsy’s Law 

rights in South Dakota’s Constitution are applicable to crimes committed outside 

the State of South Dakota. 

[¶14.] “Constitutional amendments are adopted for the purpose of making a 

change in the existing system and we are ‘under the duty to consider the old law, 

the mischief, and the remedy, and interpret the constitution broadly to accomplish 

the manifest purpose of the amendment.’” Doe v. Nelson, 2004 S.D. 62, ¶ 15, 680 

N.W.2d 302, 308 (quoting South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693, 

697 (S.D. 1981)). “The object of constitutional construction is ‘to give effect to the 

intent of the framers of the organic law and the people adopting it.’” Davis v. State, 

2011 S.D. 51, ¶ 77, 804 N.W.2d 618, 643 (Gilbertson, C.J., concurring in result) 

(quoting Doe, 2004 S.D. 62, ¶ 12, 680 N.W.2d at 307)). “A constitutional provision, 

like a statute, must be read giving full effect to all of its parts.” South Dakota Bd. of 

Regents v. Meierhenry, 351 N.W.2d 450, 452 (S.D. 1984). “Where a constitutional 

provision is quite plain in its language, we construe it according to its natural 

import.” Brendtro v. Nelson, 2006 S.D. 71, ¶ 16, 720 N.W.2d 670, 675. 

[¶15.] In considering whether Marsy’s Law is applicable to victims of crimes 

committed outside South Dakota, we examine the language of Article VI, § 29. The 

second to the last paragraph of Article VI, § 29 succinctly expresses that the 

purpose of Marsy’s Law is to “ensure the victim has a meaningful role throughout 

the criminal and juvenile justice systems.” This language, along with the nineteen 
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enumerated rights in Article VI, § 29, show that the predominant purpose of 

Marsy’s Law is to ensure that crime victims are kept informed and allowed to 

meaningfully participate in the criminal justice system throughout the time a crime 

is prosecuted and punished. Further, Article VI, § 29 states that a victim may 

assert and seek enforcement of these rights “in any trial or appellate court, or before 

any other authority with jurisdiction over the case . . . .” (Emphasis added.) South 

Dakota agencies and courts only have jurisdiction to prosecute and punish a 

criminal offense committed “in whole or in part within the [S]tate.” State v. 

Winckler, 260 N.W.2d 356, 360 (S.D. 1977).5

[¶16.] Expanding these rights in South Dakota’s constitution to victims of 

crimes committed outside South Dakota is inconsistent with the expressed purpose 

of Article VI, § 29. Where a crime occurs in another state, the victimization 

occurred outside South Dakota and justice for the victim must be realized in the 

state where the crime took place. Further, the victim’s ability to exercise the rights 

to receive adequate information and to meaningfully participate throughout the 

criminal process must also take place in the state where the crime occurred and the 

criminal case proceeds. 

[¶17.] At issue here is the right set forth in subsection 19, which states that a 

victim has a right to be informed that he or she “can seek the advice of an attorney” 

 

5. Wilkie and M.M.W. argue that the circuit court had jurisdiction here and the 

rights in Article VI, § 29 should be recognized by the court considering the 

out-of-state summons to testify. However, aside from claims of privilege and 

confidentiality, Article VI, § 29 makes no mention of victim rights associated 

with testifying at grand jury, testifying in court, or in responding to a 

subpoena or summons from the prosecutor. 
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about the rights afforded in Article VI, § 29. This right, along with nearly all the 

rights listed in Article VI, § 29, appears to place some affirmative obligations on law 

enforcement, prosecutors, state and local corrections, and the courts in South 

Dakota. If we were to interpret Article VI, § 29 to be applicable to crimes 

committed outside of South Dakota, it would create an untenable situation of 

potentially imposing affirmative obligations on South Dakota authorities and courts 

over which they have no jurisdiction or authority to act. Moreover, it is unlikely, in 

most instances, that South Dakota authorities or courts would be aware that an 

individual present in the state is a victim of a crime in another state or have any 

ability to redress such rights. 

[¶18.] “This Court will not construe a constitutional provision to arrive at a 

strained, unpractical or absurd result.” Brendtro, 2006 S.D. 71, ¶ 30, 720 N.W.2d at 

680 (quoting Breck v. Janklow, 2001 S.D. 28 ¶ 12, 623 N.W.2d 449, 455). Based 

upon the plain language and stated purposes enumerated in the Amendment, we 

hold that the constitutional rights set forth in Article VI, § 29 are inapplicable to 

crimes committed wholly outside the State of South Dakota.6

 

6. The language of Article VI, § 29 also presents questions concerning the scope 

of a victim’s rights in civil proceedings. Specifically, we note the following 

language: “[t]he granting of these rights to any victim shall ensure the victim 

has a meaningful role throughout the criminal and juvenile justice systems

and may not be construed to deny or disparage other rights possessed by 

victims. All provisions of this section apply throughout criminal and juvenile 

justice processes . . . .” S.D. Const. art. VI, § 29 (emphasis added). Because of 

our resolution of the narrow issue here, it is unnecessary to determine the 

applicability of Article VI, § 29 rights in a civil proceeding. 
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[¶19.] Because the proceedings in South Dakota did not implicate Article VI, 

§ 29 of the South Dakota Constitution, the circuit court had no obligation to advise 

either Wilkie or M.M.W. of any rights under Marsy’s Law. 

Circuit Court’s Order to Appear and Testify in Out-Of-State Criminal 

Proceedings

[¶20.] Wilkie and M.M.W. claim that there is not an adequate showing that 

they are both material and necessary witnesses. Wilkie and M.M.W. also argue 

they will suffer undue hardship if they are compelled to attend and testify in the 

Minnesota criminal trial. They point to the fact that South Dakota has not yet had 

the opportunity to address what constitutes undue hardship under SDCL 23A-14-

16. Appellants claim that South Dakota law is consistent with the Uniform Act as 

adopted by the National Conference of Commissioners on Uniform State Laws in 

1936. They cite cases from other jurisdictions which have adopted the same. See 

Epstein v. People ex rel. N.Y., 157 So. 2d 705, 708 (Fla. Dist. Ct. App. 1963) (finding 

no abuse of discretion in a state court’s decision to compel attendance of witness in a 

sister state’s proceeding); Commonwealth v. Gasdik, No. 04-1415, 2004 WL 

3186247, at *1 (Mass. Super. Nov. 10, 2004) (stating that “certain circumstances 

such as a specific threat, the possibility of psychological harm, or the tender age of a 

child witness might constitute an undue hardship,” but refusing to find such 

circumstances in the case); In re Stoddard, 470 A.2d 1185, 1187 (Vt. 1983) (holding 

it is essential for a trial court to state findings of fact as to necessity, materiality, 

and undue hardship and not rely on facts stated in a certificate asking for the 

attendance of a witness). 
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[¶21.] As noted above, the circuit court’s order is akin to a ruling on a motion 

to quash a subpoena—a discovery order. We review a circuit court’s decision on 

discovery matters for an abuse of discretion. Novotny v. Sacred Heart Health Servs., 

2016 S.D. 75, ¶ 5, 887 N.W.2d 83, 87. Similarly, a circuit court’s ruling on 

evidentiary questions “will not be overturned absent a clear abuse of discretion.” 

St. John v. Peterson, 2011 S.D. 58, ¶ 10, 804 N.W.2d 71, 74. “An abuse of discretion 

is ‘a choice outside the range of permissible choices.’” Coloni v. Coloni, 2017 S.D. 66, 

¶ 6, 903 N.W.2d 745, 747 (quoting Rumpza v. Zubke, 2017 S.D. 49, ¶ 7, 900 N.W.2d 

601, 604). We apply the abuse of discretion standard to the circuit court’s order 

compelling Wilkie and M.M.W. to testify at the Minnesota criminal trial. 

[¶22.] At the May 8, 2017 phone hearing, the circuit court made minimal oral 

findings of fact and conclusions of law. The circuit court stated, in pertinent part: 

The [c]ourt has reviewed the entire file, it appears that the 

underlying criminal allegation is very serious. . . . The [c]ourt is 

going to order that [Wilkie] appear as an essential witness 

personally. None of your comments really related to a hardship 

for yourself, so I will order that you appear, and I’m going to 

sign that order, sir. 

 In addition, based on the seriousness of the underlying offense, 

and the procedures that I’m sure their court and State can use 

as it relates to whatever testimony, if any, may be requested 

from [M.M.W.], I am going to sign that [o]rder as well. So 

[M.M.W.] will be commanded to appear. 

[¶23.] SDCL 23A-14-16 requires “a judge [to] determine[] that a witness is 

material and necessary [and] that it will not cause undue hardship to the witness to 

be compelled to attend and testify in the prosecution.” (Emphasis added.) SDCL 

23A-14-16 provides that the certificate from the requesting state is “prima facie 

evidence of all the facts stated therein.” We have held in other contexts that prima 
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facie evidence creates a presumption under SDCL 19-19-301. See Lord v. Hy-Vee 

Food Stores, 2006 S.D. 70, ¶ 23, 720 N.W.2d 443, 453. Under SDCL 19-19-301, “a 

presumption imposes on the party against whom it is directed the burden of going 

forward with evidence to rebut or meet the presumption” and “[w]hen substantial, 

credible evidence has been introduced to rebut the presumption, it shall disappear 

from the action or proceeding . . . .” “[T]he substantial, credible evidence 

requirement means that a presumption may be rebutted or met with such evidence 

as a trier of fact would find sufficient to base a decision on the issue, if no contrary 

evidence was submitted.” Nemec v. Goeman, 2012 S.D. 14, ¶ 21, 810 N.W.2d 443, 

448 (quoting Stavig v. Stavig, 2009 S.D. 89, ¶ 16, 774 N.W.2d 454, 460). 

[¶24.] Here, the certificates from the Minnesota court provided prima facie 

evidence that Wilkie and M.M.W. were material and necessary witnesses for the 

Minnesota criminal case. The Minnesota certificates and affidavits stated that 

Wilkie and M.M.W. are material and necessary witnesses to prove the elements of 

the alleged assault. The certificates specifically set forth that M.M.W. was a victim 

of the assault and that M.M.W. called Wilkie by phone immediately after the 

assault occurred. Neither Wilkie nor M.M.W. presented any evidence to refute this 

prima facie showing of materiality and necessity. Wilkie and M.M.W. argue that 

only one of them could be material and necessary witnesses in the Minnesota 

prosecution, but they have failed to present any authority in support of their claim 

that summoning one witness with knowledge precludes summoning the other 

witness with similar knowledge. 
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[¶25.] We turn then to the claim that the orders summoning testimony in the 

Minnesota case will create a hardship on Wilkie and M.M.W. The certificates and 

affidavits provide that there was no known reason that an order compelling Wilkie 

and M.M.W. to testify would cause undue hardship. The circuit court permitted 

Wilkie to appear by phone and present objections on behalf of both himself and 

M.M.W. During the hearing, Wilkie claimed that the proceedings were starting to 

cost him a lot of money to drive back and forth. He provided no specifics on what 

costs he would incur or whether those costs would exceed the statutory 

reimbursements under SDCL 23A-14-18. Wilkie’s other comments to the circuit 

court addressed his concerns about M.M.W. being required to testify in the 

Minnesota criminal trial. After considering Wilkie’s comments, the circuit court 

found that none of Wilkie’s “comments really related to a hardship for yourself.” 

[¶26.] On appeal, Wilkie argues that he “produced evidence of undue 

hardship to both [M.M.W. and himself]” and also that he was not given an adequate 

opportunity to present his own hardship to the circuit court. From our review, we 

cannot say that the circuit court erred in finding that Wilkie failed to present any 

evidence of hardship for himself. The court did not abuse its discretion in ordering 

Wilkie to appear and testify in Minnesota. 

[¶27.] In regard to M.M.W., Wilkie expressed his concern, as M.M.W.’s 

caretaker, about the impact that testifying would have on M.M.W. A letter from 

M.M.W.’s counselor was also submitted to the circuit court. The letter expressed 

that M.M.W. was experiencing mental health issues as a result of stress and 

trauma. The counselor’s letter opined that “testifying would likely negatively 
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impact her mental health and cause an increase in her depressive symptomology, 

trauma symptomology and suicidality.” 

[¶28.] The circuit court did not make any finding on whether the counselor’s 

letter and Wilkie’s statements rebutted the prima facie showing by the State of no 

known hardship. Moreover, the State’s failure to present any evidence in response 

to the mental health concerns raised by M.M.W. made it impossible for the circuit 

court to adequately consider the hardship issue raised by M.M.W. The circuit court 

simply noted the seriousness of the Minnesota charges and the “procedures that I’m 

sure” the Minnesota court can employ in handling M.M.W.’s testimony. The circuit 

court made no findings on hardship or the mental health concerns raised by 

M.M.W.’s counselor if M.M.W. were required to testify. The failure of the circuit 

court to make adequate findings on an issue is an abuse of discretion. See 

Guardianship of Nelson, 2017 S.D. 68, ¶ 17, 903 N.W.2d 753, 758.

Conclusion 

[¶29.] We affirm the order directing Wilkie to testify at the Minnesota trial. 

We reverse and remand the order directing M.M.W. to testify. The record should be 

further developed on M.M.W.’s claim of hardship so that the circuit court can make 

adequate findings of fact under SDCL 23A-14-16 on the question of undue hardship. 

[¶30.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, 

Justices, concur.