#29083-a-PER CURIAM 

2019 S.D. 59 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

CHARLES RUSSELL RHINES, Plaintiff and Appellant, 

v. 

SOUTH DAKOTA DEPARTMENT 

OF CORRECTIONS and MIKE 

LEIDHOLT, Secretary, South 

Dakota Department of Corrections, Defendant and Appellee. 

 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SECOND JUDICIAL CIRCUIT 

MINNEHAHA COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE JON C. SOGN 

Judge 

* * * * 

DANIEL R. FRITZ 

TIMOTHY R. RAHN 

Ballard Spahr LLP 

Sioux Falls, South Dakota Attorneys for plaintiff and 

appellant. 

JASON R. RAVNSBORG 

Attorney General 

PAUL S. SWEDLUND 

Assistant Attorney General 

Pierre, South Dakota Attorneys for defendant 

 and appellee. 

* * * * 

 CONSIDERED ON BRIEFS

 OCTOBER 15, 2019 

 OPINION FILED 10/25/19 
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PER CURIAM 

[¶1.] Charles Rhines is a prisoner awaiting execution for a death sentence 

imposed following his first-degree murder conviction. He brought a civil action 

challenging a Department of Corrections administrative policy relating to the 

method and procedures for carrying out capital sentences. The circuit court granted 

the State’s motion to dismiss, and Rhines appeals. We affirm. 

Background 

[¶2.] Rhines killed Donnivan Schaeffer in March of 1992 while burglarizing 

a Rapid City doughnut shop. A jury convicted Rhines of first-degree murder and 

recommended a sentence of death. The circuit court1 imposed the death sentence 

and issued a warrant of execution. Rhines appealed to this Court, and we affirmed 

the conviction and sentence. State v. Rhines, 1996 S.D. 55, 548 N.W.2d 415. The 

United States Supreme Court later denied Rhines’ request for a writ of certiorari. 

Rhines v. South Dakota, 519 U.S. 1013, 117 S. Ct. 522, 136 L. Ed. 2d 410 (1996). 

[¶3.] In the twenty-three years that have followed, Rhines has pursued 

collateral review of his conviction and sentence in state and federal courts. Among 

these cases was a direct challenge to the State’s lethal injection protocols under the 

current law and under the law as it existed at the time of Rhines’ conviction and 

sentence.2 In an amended petition for a writ of habeas corpus, Rhines argued that 

 

1. The Honorable John K. Konenkamp, Circuit Court Judge, now a retired 

Justice of this Court. 

2. The information relating to this proceeding is contained in our court file in 

Rhines v. Weber, #26673 (2013). It is included here for context and a more 

complete exposition of the facts. We have not relied upon the information to 

 (continued . . .) 
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the State’s protocols violated due process and the Eighth Amendment’s proscription 

against cruel and unusual punishment. The issues were fully litigated during a 

court trial, which included expert medical testimony. 

[¶4.] In its subsequent written decision, the circuit court3 reviewed the 

parties’ evidence against settled constitutional principles, made detailed findings of 

fact, and concluded the State’s lethal injection protocols did not constitute cruel and 

unusual punishment. The circuit court denied Rhines’ request for a certificate of 

probable cause, which would have allowed an appeal to this Court. See SDCL 21-

27-18.1 (requiring a “certificate of probable cause that an appealable issue exists[]” 

for appellate review in a habeas case). Rhines then sought to invoke our original 

jurisdiction to issue a certificate, but we denied his motion, concluding he had not 

demonstrated probable cause that an appealable issue existed. Rhines’ subsequent 

petition for certiorari to the United States Supreme Court was unsuccessful. 

Rhines v. Weber, 571 U.S. 1164, 134 S. Ct. 1002, 187 L. Ed. 2d 852 (2014). 

[¶5.] In August of 2018, Rhines commenced this civil action in circuit court, 

seeking declaratory and injunctive relief. Rhines alleges he is not challenging the 

constitutionality of his death sentence or the death penalty itself. Instead, he 

claims that a written policy issued by the South Dakota Department of Corrections 

(DOC) relating to the execution of a condemned inmate is invalid because it was not 

________________________ 

(. . . continued) 

reach our decision in this appeal. See Jenner v. Dooley, 1999 S.D. 20, ¶ 15, 

590 N.W.2d 463, 470 (recognizing courts can take judicial notice of public 

records, including prior judicial proceedings). 

3. The Honorable Thomas L. Trimble, Circuit Court Judge, now retired. 
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promulgated within the rule-making requirements of South Dakota’s 

Administrative Procedure Act (APA). See SDCL Ch. 1-26. 

[¶6.] The State moved to dismiss Rhines’ complaint, arguing the DOC 

policy, known as SDDOC Policy 1.3.D.3 (“the Policy” or “the DOC Policy”), was not 

subject to APA rule-making requirements. The State cited provisions of the APA, 

along with other statutory authority and decisional law from this Court and other 

courts to support its claim that the Legislature has exempted DOC agency 

statements like the Policy from the APA’s requirements of notice and public 

comment. 

[¶7.] The circuit court4 agreed. After considering the parties’ arguments, it 

issued a written decision, dismissing Rhines’ complaint, and determining that the 

Policy was not a rule and therefore not subject to the APA. The court also 

concluded that the authority of the DOC to carry out a death sentence was derived 

from SDCL 23A-27A-32 whose provisions, the circuit court reasoned, were selfexecuting. 

[¶8.] As this case was proceeding in circuit court, Rhines’ habeas corpus 

litigation came to a conclusion on April 15, 2019, with the United States Supreme 

Court’s decision denying certiorari to consider Rhines’ federal habeas claims. 

Rhines v. Young, 899 F.3d 482 (8th Cir. 2018), cert. denied, ___ U.S. ___, 139 S. Ct. 

1567, 203 L. Ed. 2d. 730 (2019). The successor to the original sentencing court 

issued a new warrant of execution ordering the warden of the South Dakota State 

 

4. The Honorable Jon C. Sogn, Circuit Court Judge. 
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Penitentiary to carry out Rhines’ execution during the week of Sunday, November 3, 

2019. 

[¶9.] Rhines now appeals the circuit court’s order dismissing his APA 

challenge to the Policy. The case was fully briefed as of October 2, 2019. Citing his 

imminent execution, Rhines has asked this Court for an order staying the current 

execution date. The State has resisted the stay request, arguing this appeal is 

simply what it believes to be the latest of Rhines’ long-standing efforts to delay his 

execution. 

[¶10.] We have reviewed the record and the parties’ submissions and have 

determined that we can decide the case on its merits without a stay. We therefore 

address Rhines’ principal issue on appeal, which we restate as follows: Whether the 

circuit court erred when it determined the DOC Policy was not subject to the APA’s 

rule-making requirements and granted the State’s motion to dismiss. 

Analysis 

[¶11.] Determining whether the Policy is subject to the APA requires an 

interpretation of several relevant statutes. This is a legal question for which we 

accord the circuit court no deference and review de novo. See Mergen v. N. States 

Power Co., 2001 S.D. 14, ¶ 4, 621 N.W.2d 620, 621 (quoting State v. Springer-Ertl, 

1997 S.D. 128, ¶ 4, 570 N.W.2d 39, 40) (“The construction of a statute and its 

application to the facts present questions of law, which we review de novo.”). 

Motions to dismiss under SDCL 15-6-12(b)(5) (Rule 12(b)(5)) test the legal 

sufficiency of the plaintiff’s claim and necessarily implicate questions of law. Sisney 

v. Best Inc., 2008 S.D. 70, ¶¶ 6-8, 754 N.W.2d 804, 807-09. For this reason, we also 
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review de novo a circuit court’s determination of a Rule 12(b)(5) motion to dismiss. 

Id.

[¶12.] When confronting a motion to dismiss under Rule 12(b)(5), “a plaintiff’s 

obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of 

action will not do[.]” Id. ¶ 7, 754 N.W.2d at 808 (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)). Although 

courts determining the motion are obligated to accept the truth of the complaint’s 

factual allegations, they “are not bound to accept as true a legal conclusion couched 

as a factual allegation[.]” Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 

1965). “The pleading must contain something more than a statement of facts that 

merely creates a suspicion of a legally cognizable right of action on the assumption 

that all the allegations in the complaint are true (even if doubtful in fact).” Id.

(quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). 

[¶13.] Our rules for construing statutory text are well-settled and may be 

concisely summarized as follows: 

The purpose of statutory construction is to discover the true 

intention of the law which is to be 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, and the court must confine 

itself to the language used. Words and phrases in a statute 

must be given their plain meaning and effect. When the 

language in a statute is clear, certain and unambiguous, there is 

no reason for construction, and the Court’s only function is to 

declare the meaning of the statute as clearly expressed. 

Discover Bank v. Stanley, 2008 S.D. 111, ¶ 15, 757 N.W.2d 756, 761 (quoting 

Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611). 
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Applicability of the APA 

[¶14.] The APA provides a means by which interested parties can, in some 

instances, seek declaratory relief concerning an agency’s rules: 

The validity or applicability of a rule may be determined in an 

action for declaratory judgment in the circuit court for the 

county of the plaintiff’s residence, if it is alleged that the rule, or 

its threatened application, interferes with or impairs, or 

threatens to interfere with or impair, the legal rights or 

privileges of the plaintiff. 

SDCL 1-26-14. 

[¶15.] We have held that SDCL 1-26-14 requires the existence of “an actual 

case or controversy.” In re Petition for Declaratory Ruling re SDCL 62-1-1(6), 2016 

S.D. 21, ¶ 8, 877 N.W.2d 340, 343.5 The statute also presupposes the existence of a 

rule that is subject to the APA. See, e.g., Moulton v. State, 363 N.W.2d 405, 406-07 

(S.D. 1985) (holding that the absence of an agency rule renders SDCL 1-26-14 

inapplicable). Under the provisions of SDCL 1-26-14, a court could, for example, 

declare whether a putative rule was validly promulgated under the APA or 

determine whether the rule’s provisions apply to a particular set of circumstances, 

provided that in either instance an actual controversy exists. See, e.g., Homestake 

Mining Co. v. Bd. of Envtl. Prot., 289 N.W.2d 561, 562 (S.D. 1980) (holding that 

 

5. The APA also allows agencies to issue their own declaratory rulings without 

a case or controversy requirement and based upon hypothetical facts. See In 

re SDCL 62-1-1(6), 2016 S.D. 21, ¶ 8, 877 N.W.2d at 343 (citing SDCL 1-26-

15’s requirement for agencies to adopt rules “for the . . . prompt disposition of 

petitions for declaratory rulings as to the applicability of any statutory 

provision or of any rule or order of the agency”). Inmates, however, may not 

seek declaratory relief under the provisions of SDCL 1-26-15, which 

specifically provides that “[n]o inmate . . . may petition an agency for a 

declaratory ruling on the applicability of statutory provisions, rules, or orders 

of the agency.” 
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SDCL 1-26-14 was the correct procedure for challenging the validity of 

administrative rules promulgated under the APA). 

[¶16.] Here, Rhines’ effort to invoke SDCL 1-26-14 and obtain relief under 

the APA rests upon the premise that the Policy is an APA rule. However, we are 

not convinced the premise is sound. 

[¶17.] South Dakota’s APA imposes rule-making requirements upon agencies 

seeking to adopt, amend, or repeal administrative rules. See generally SDCL 1-26-

4. Included among these requirements is an agency’s obligation to publish notice of 

the proposed rule change and conduct a hearing to allow public comment. Id. 

Whether an agency’s statement is subject to these rule-making requirements 

requires the interior determination of whether the statement is actually a rule. 

[¶18.] A rule subject to the APA is an “agency statement of general 

applicability that implements, interprets, or prescribes law, policy, procedure, or 

practice requirements of any agency.” SDCL 1-26-1(8). However, the Legislature 

has excluded from this definition certain agency statements, including those 

involving “[i]nmate disciplinary matters as defined in § 1-15-20[.]” SDCL 1-26-

1(8)(g). 

[¶19.] The text of SDCL 1-15-20 contains two distinct legislative 

determinations of public policy. The first paragraph of the statute states that the 

DOC “at any time may promulgate rules[ ] pursuant to chapter 1-26” in five specific 
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areas, none of which Rhines alleges is applicable. SDCL 1-15-20.6 More relevant to 

our consideration here is the statute’s second paragraph, which further provides 

that the DOC “may prescribe departmental policies and procedures for the 

management of its institutions and agencies, including inmate disciplinary 

matters.” Id.

[¶20.] Our interpretation of SDCL 1-15-20 leads us to conclude that the 

Legislature has limited the DOC’s rule-making authority to the five enumerated 

topical areas, while also authorizing the DOC to prescribe policies and procedures 

for discharging its unique responsibilities. These policies and procedures, as they 

relate to inmate disciplinary matters, are not subject to the APA. 

[¶21.] This construction of SDCL 1-15-20 is confirmed by a plain reading of 

SDCL 1-26-1(8)(g), which specifically excludes “inmate disciplinary matters”—a 

phrase that sounds narrower than it is. In truth, SDCL 1-15-20 defines “inmate 

disciplinary matters” broadly as “all matters relating to individual inmate behavior 

and . . . all matters relating to the maintenance of order, control, and safety within 

any institution under the supervision of the Department of Corrections.” Reading 

SDCL 1-26-1(8)(g)’s APA exclusion for “inmate disciplinary matters” together with 

the definition contained in SDCL 1-15-20, we conclude that the APA does not apply 

to “all matters relating to individual inmate behavior” or “all matters relating to the 

maintenance of order, control, and safety within any institution under the 

supervision of the Department of Corrections.” SDCL 1-15-20. 

 

6. The five areas are: (1) public contact with inmates; (2) inmate release dates; 

(3) parole standards; (4) out-of-state and federal inmates; and (5) inmate 

accounts. 
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[¶22.] Applying these statutory rules here, we determine that the Policy is 

not a rule subject to the requirements of the APA. The Policy is entitled “Execution 

of an Inmate” and states that the DOC will “carry out the execution of an inmate in 

accordance with chapter 23A-27A[,]” adding that the execution “will be conducted in 

a professional, humane and dignified manner.” Among other things, the Policy 

regulates the number and type of witnesses an inmate can request, arrangements 

and procedures for the inmate’s movements immediately preceding the execution, 

the inmate’s final visit, and the inmate’s opportunity to make a final statement. 

These DOC agency determinations fall within the broad scope of regulating “all 

matters relating to individual inmate behavior.” SDCL 1-15-20. 

[¶23.] In addition, the Policy also contemplates the need for order, control, 

and safety as part of carrying out the penalty of death. For example, the Policy 

addresses the methods and procedure for the execution itself. In large part, these 

provisions reflect the DOC’s effort to adhere to the Unites States Supreme Court’s 

decision in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008). In 

Baze, the United States Supreme Court held that the use of lethal injection as a 

method of execution did not constitute cruel and unusual punishment. Id. at 47, 

128 S. Ct. at 1529. A plurality of the Court further expressed the view that lethal 

injection would transgress the Eighth Amendment only if it presents a “‘substantial 

risk of serious harm,’ an ‘objectively intolerable risk harm.’” Id. at 50, 128 S. Ct. at 

1531 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846, and n.9, 114 S. Ct. 1970, 

1981, 1983, and n.9, 128 L. Ed. 2d 811 (1994)). The Policy is, therefore, an effort to 

ensure order, control, and safety in the actual execution process. 
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[¶24.] Beyond this, other provisions of the Policy are further directed at 

ensuring order, control, and safety for the benefit of those conducting and 

witnessing the execution. The Policy prescribes requisite qualifications and 

training for those carrying out the individual steps associated with the execution. It 

also references statutory provisions contained in SDCL chapter 23A-27A, which 

regulate the details of the execution’s time and place,7 along with the selection of 

witnesses, standards for witness behavior, and media relations. In essence, the 

Policy serves as a resource that consolidates and restates governing statutory 

provisions and incorporates the DOC’s policies and procedures for carrying out an 

execution. 

[¶25.] Rhines’ argument that the Policy does not address inmate disciplinary 

matters overlooks the breadth of its statutory definition. See SDCL 1-15-20. His 

related claim that similar statutory APA exemptions for corrections agencies in 

other states are broader than the definition in SDCL 1-15-20 misses the mark. 

Even if we were to grant the point, it does not follow that the definition contained in 

SDCL 1-15-20 is too narrow to encompass the DOC Policy. Indeed, we believe the 

definition to be broad in its own right and sufficient to include the provisions of the 

Policy. 

[¶26.] In addition, Rhines misreads the other provisions of SDCL 1-15-20 by 

suggesting courts have the authority to add execution procedures to the list of five 

specific areas within which the DOC “may promulgate rules.” We disagree and, as 

 

7. The execution must take place “within the walls of some building at the state 

penitentiary[.]” SDCL 23A-27A-32. 
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indicated above, believe the better reading of the statute authorizes the DOC to 

promulgate APA-compliant regulations in the five enumerated areas and otherwise 

prescribe “policies and procedures for the management of its institutions and 

agencies, including inmate disciplinary matters.” Id.

[¶27.] Because the Policy does not fit within the APA’s definition of a “rule,” 

it is not subject to the APA.8 The circuit court correctly reached the same 

conclusion, and its decision to dismiss Rhines’ complaint could be affirmed on this 

basis alone. 

[¶28.] More fundamentally, though, Rhines’ action contains an additional 

limitation—it incorrectly presupposes the Policy is the only basis of the State’s 

authority to carry out a sentence of death. We, therefore, write further to clarify the 

nature of the State’s authority in this regard and provide an additional basis for 

denying Rhines’ request to enjoin his execution. 

The State’s Authority to Carry out a Death Sentence 

[¶29.] “The Constitution allows capital punishment.” Bucklew v. Precythe, 

___ U.S. ___, 139 S. Ct. 1112, 1122, 203 L. Ed. 2d 521 (2019) (citing Glossip v. Gross, 

___ U.S. ___, 135 S. Ct. 2726, 2731-33, 192 L. Ed. 2d 761 (2015); Baze, 553 U.S. at 

47, 128 S. Ct. at 1520). Of course, the fact that the death penalty does not violate 

the Constitution does not mean that states are obligated to permit it. See id. South 

 

8. The parties and the circuit court also addressed the possibility that the Policy 

is excluded from SDCL 1-26-1(8)’s definition of a rule under the provisions of 

SDCL 1-26-1(8)(a), which excludes “[s]tatements concerning only the internal 

management of an agency and not affecting private rights or procedure 

available to the public[.]” However, given our determination that the Policy 

is excluded from the APA under SDCL 1-26-1(8)(g), it is unnecessary to reach 

the question of whether it is also excluded by another statutory provision. 
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Dakota, however, does. Acting through its popularly-elected Legislature, South 

Dakota is among a majority of states that allow capital punishment.9 This case is 

not about the efficacy of capital punishment, which we recognize implicates deeply 

held convictions among many.10

[¶30.] The Legislature has enacted detailed statutory standards and 

requirements for the prosecution of capital cases and the imposition of the death 

penalty. See SDCL Ch. 23A-27A.11 Included within this group is SDCL 23A-27A32, which provides in relevant part: 

The punishment of death shall be inflicted by the intravenous 

injection of a substance or substances in a lethal quantity. The 

warden, subject to the approval of the secretary of corrections, 

shall determine the substances and the quantity of substances 

used for the punishment of death. An execution carried out by 

intravenous injection shall be performed by persons trained to 

administer the injection who are selected by the warden and 

approved by the secretary of corrections. 

 

9. Federal law also permits the imposition of a death sentence. See 18 U.S.C. 

Ch. 228. 

10. Nor does this case concern Rhines’ opportunity to object to the method of his 

execution. As discussed above, Rhines unsuccessfully litigated the 

constitutionality of the State’s lethal injection protocols in 2013. Though he 

claims his current action is merely a reflection of his interest in seeing that 

all executions are carried out in a “professional, humane and dignified 

manner,” he has not explained how this interest differs in any meaningful 

way from his interest in ensuring his execution did not violate the 

Constitution’s prohibition on cruel and unusual punishments. 

11. Chapter 23A-27A does not contain any express authority for the DOC to 

promulgate regulations concerning procedures for carrying out a death 

sentence. 
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[¶31.] In addition to identifying the method of execution,12 the Legislature 

has also provided explicit authority for the warden to carry out a death sentence. 

See SDCL 23A-27A-31 (“The warden shall execute the warrant of death sentence 

and execution accordingly.”); SDCL 23A-27A-37.1 (requiring the DOC secretary to 

appoint a replacement in the event of the warden’s disability “to carry out the 

warrant of death sentence and execution and to perform all other duties imposed 

upon the warden by this chapter[]”). The DOC Policy at issue in this case does not 

make the warden’s responsibility to carry out a death sentence any more or less 

authorized. Indeed, in the absence of the Policy, the DOC secretary and the warden 

would still be obligated to conduct an execution directed by a sentencing court’s 

warrant. See SDCL 23A-27A-15 and SDCL 23A-27A-31. 

[¶32.] Though the context differed, we reached a similar conclusion in Clay v. 

Weber, 2007 S.D. 45, 733 N.W.2d 278. There we held that any failure to treat 

policies for charging inmates’ prison accounts for the costs of their confinement as 

APA rules was not consequential. Id. ¶ 12, 733 N.W.2d at 283-84. Even in the 

absence of the policies, penitentiary officials were authorized by statute to charge 

inmates’ accounts for the costs. Id.

[¶33.] Here, the same analysis applies. The provisions of SDCL Chapter 

23A-27A relating to the methods and procedures for carrying out a death sentence 

 

12. The text of SDCL 23A-27A-32 was amended in 2007 and 2008, but the 

language prior to 2007 contains the same method of execution by lethal 

injection: “The punishment of death shall be inflicted by the intravenous 

administration of a lethal quantity of an ultra-short-acting barbiturate in 

combination with a chemical paralytic agent . . . An execution carried out by 

lethal injection shall be performed by a person selected by the warden and 

trained to administer the injection[.]” 1984 S.D. Sess. L. ch. 181. 
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are self-executing, and they—not the DOC Policy—vest members of the executive 

branch with the authority to carry out a capital sentence. To conclude otherwise 

overlooks the primacy of these statutes and exalts the Policy to preeminence. 

[¶34.] We affirm.13

[¶35.] GILBERTSON, Chief Justice, JENSEN and SALTER, Justices, and 

COMER and SHELTON, Circuit Court Judges, concur. 

[¶36.] COMER, Circuit Court Judge, sitting for KERN, Justice, disqualified. 

[¶37.] SHELTON, Circuit Court Judge, sitting for DEVANEY, Justice, 

disqualified. 

 

13. Given our disposition of this appeal on its merits, Rhines’ motion for a stay is 

rendered moot and denied on that basis.