Judicial resolution of civil disputes is primarily premised upon the “adversary system,” which places responsibility on the parties for commencing litigation, shaping the issues, and producing evidence – in other words, the parties bear the burdens of time, energy, and expense. This is most often accomplished by hiring a lawyer, as lay people are generally not familiar with the intricacies of the civil justice system, the rules of civil procedure, or the nuances of the applicable substantive law. This system is justified by the notion that these burdens motivate the parties to do their best in presenting the information necessary for a court to make a just decision.
The adversary system, of course, has its drawbacks. A party who is diligent and does a better job of presenting their case is more likely to prevail against an opponent who is sloppy, lazy, or delinquent in meeting a deadline – regardless of the merits of the underlying controversy. Sometimes, both parties are sloppy or lazy in advocating their position and fully exposing the issues to the court, resulting in decisions that are not truly based on the merits.
The judicial doctrine of parens patriae applies in very limited scenarios to counter-balance the inadequacies of the adversary system. Under the parens patraie doctrine, a court takes a more active role in providing special protection for those who are unable to protect themselves, such as older adults, incompetent persons, and children. The South Dakota Supreme Court has invoked this doctrine in several child custody cases, stating, “In these important cases, when trial lawyers fail to fulfill [their] obligation, trial courts, in their role of parens patriae of the children, must insist that more be done. It is the trial court’s duty to see that the children are protected at every turn.” Williams v. Williams, 425 N.W.2d 390, 393 (S.D.1988) (quoting Jasper v. Jasper, 351 N.W.2d 114, 117 (S.D.1984). Among other things, the South Dakota Supreme Court has affirmatively encouraged trial courts faced with custody disputes “to require a homestudy of both parents” and to independently “call and interrogate witnesses.” Id at 393.
The doctrine of parens patriae evolved from the Latin phrase, “parent of the country.” Its judicial origin traces to English common law, which recognized that the King, or his designated Chancellor, was authorized to act as guardian for those unable to care for themselves as part of the royal prerogative.
English common law was adopted as a foundational part of South Dakota law, and continues to be preserved by statute, now found as SDCL 1-1-24. The application of English common law actually pre-dates statehood and was applicable in all of Dakota Territory, which encompassed North Dakota, South Dakota, and parts of Wyoming and Montana. See Jon K. Lauck, “The Organic Law of a Great Commonwealth”: The Framing of the South Dakota Constitution, 53 S.D. L. Rev. 203, 210 (2008) (“The operative law in Dakota Territory remained the precedents of the English common law.”).
Note: In regard to the preparation of this week’s column, the author would like to thank attorney/historian Jon K. Lauck and Sarah Baron Houy for their assistance and input.
Anyone desiring to communicate with the Author, may do so by sending an e-mail to the author at rogermbaron@gmail.com .
Roger Baron is a guest columnist for the Rapid City Post. Opinions expressed may not necessarily represent the views of the Rapid City Post, its affiliates, or advertisers.
