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Chet Brokaw, Associated Press, Published June 13 2013

SD Supreme Court upholds law making bigamy a crime

PIERRE, S.D. — The South Dakota Supreme Court on Thursday upheld a state law that makes bigamy a crime, a decision that will allow South Dakota prosecutors to pursue a charge against a North Dakota man.

Michael Clements was living in Ashley, N.D., when he was charged with bigamy for marrying a woman in Aberdeen, S.D., in June 2011 before his divorce was final in a 2009 North Dakota marriage, according to court records.

However, Circuit Judge Scott Myren dismissed the charge, ruling that because Clement's second marriage was never valid, it was impossible for him to have committed bigamy by being married to two women at the same time.

The Supreme Court's unanimous ruling overturned the circuit judge's decision. The justices said dismissing the charge on the basis that bigamy is a legal impossibility would nullify the state law making bigamy a crime.

The high court said it agrees with courts in other states that bigamy is committed when someone enters into a purported marriage contract while still married to someone else.

Brown County State's Attorney Larry Lovrien said his office cannot handle the case, which started before he became state's attorney, because his son, Marshall Lovrien, is the lawyer representing Clements. The state's attorney said he will seek to appoint a special prosecutor from outside the area to decide whether to prosecute Clements based on the facts and merits of the case.

In South Dakota, bigamy is a felony punishable by up to two years in prison and a $4,000 fine.

Marshall Lovrien said he believes the case marks the first time the South Dakota Supreme Court has issued a decision dealing with the bigamy law, which has been on the books since 1939.

“Obviously, we're disappointed with the result. But now we've at least got some established law in South Dakota on what constitutes the crime of bigamy,” he said.

South Dakota Attorney General Marty Jackley, whose office handled the appeal, said he is pleased with the high court's decision because the justices decided to apply the law written by the Legislature.

“In essence this case was our highest court, the Supreme Court, giving deference to the South Dakota Legislature to make the policy decision,” Jackley said.

Jackley said a prosecutor now will have to review the facts of the case. The law banning bigamy does not apply when someone believes in good faith that a first marriage is void or dissolved, but that question apparently was not resolved before the case against Clement was dismissed, he said.

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