South Dakota Department of Transportation v. Freeman

I respectfully dissent.

As Chief Justice Fosheim noted in Bayer v. Johnson, 349 N.W.2d 447, 450 (S.D. 1984): “State officials, including supreme court justices, are by constitutional mandate required to take an oath or affirmation to support the constitution of this state. S.D. Const. Art. XXI, § 3.” Thus, if a patent constitutional dilemma arises in a case, although not raised by either party, this Court may decide that constitutional question on its own motion. Id. “Courts, above all, must jealously protect the integ*245rity of the constitution.” Id. Failure to meet that which is…