CONSIDERED ON BRIEFS OCTOBER 15, 2019
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, THE HONORABLE JON C. SOGN Judge
R. FRITZ TIMOTHY R. RAHN Ballard Spahr LLP Sioux Falls, South
Dakota Attorneys for plaintiff and appellant.
R. RAVNSBORG Attorney General PAUL S. SWEDLUND Assistant
Attorney General Pierre, South Dakota Attorneys for defendant
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.
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 court 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).
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. In an amended
petition for a writ of habeas corpus, Rhines argued that 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.
In its subsequent written decision, the circuit
court 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
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 promulgated
within the rule-making requirements of South Dakota's
Administrative Procedure Act (APA). See SDCL Ch.
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.
The circuit court 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 self-executing.
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 Penitentiary to carry out
Rhines' execution during the week of Sunday, November 3,
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
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.
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 review de novo a circuit court's
determination of a Rule 12(b)(5) motion to dismiss.
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