PIERRE, S.D. (KELO) — A Sioux Falls man who tried to represent his sister in court isn’t being allowed to do so, because he isn’t an attorney, according to the South Dakota Supreme Court.

In an opinion publicly released this week, the state’s high court said Bruce Danielson can make decisions on behalf of Terese Danielson, who has developmental disabilities, because he is her court-appointed guardian.

But he can’t appeal to circuit court or the Supreme Court the decision by LifeScape to terminate services to her, the justices said.

Danielson attempted to appeal the termination of services in circuit court, but LifeScape argued that the appeal should be dismissed because “a non-attorney may not appear pro se to represent another person in a legal action.”

Pro se is a Latin phrase meaning “for oneself.”

Circuit Judge John Pekas gave Danielson 30 days to find a lawyer. When Danielson didn’t, Judge Pekas dismissed the appeal. Danielson then appealed to the South Dakota Supreme Court.

Justice Scott Myren wrote the Supreme Court’s unanimous decision dismissing Danielson’s appeal.

Justice Myren pointed to the precedent of a 1929 South Dakota Supreme Court decision, Stevens v. Jas A. Smith Lumber Co., that stated, “Proceedings in a suit by a person not entitled to practice are a nullity.”

The Supreme Court’s dismissal of Danielson’s appeal carried a footnote quoting the South Dakota law that says a license from the Supreme Court is required to practice law in South Dakota.

That law specifically says, “No person, except as provided in § 16-18-2, may practice as an attorney and counselor at law in any court of record within this state, either by using or subscribing his or her own name or the name of any other person, without having previously obtained a license for that purpose from the Supreme Court of this state and having become an active member in good standing of the State Bar of South Dakota. A violation of this section is a Class 1 misdemeanor.”

Wrote Justice Myren, “Because he may not represent her in court proceedings, the notice of appeal he filed was ineffective to invoke this Court’s appellate jurisdiction.”

Justice Janine Kern filed a special concurrence, which was joined by Justice Patricia DeVaney.

Justice Kern wrote that other jurisdictions take a different approach “when timely notices of appeal are filed by non-attorneys on behalf of an appellant. While we have not previously contemplated whether or how this alternative approach would conform to our existing rules of appellate procedure, some courts have held that the filing of a notice of appeal by a nonattorney does not automatically render the appeal a nullity.”

Instead of dismissing an appeal as a nullity, Justice Kern said, those courts determine a time in which the appellant must obtain an attorney. “This is essentially the approach taken by the circuit court here when it gave Bruce additional time to obtain legal counsel to proceed with Terese’s administrative appeal,” she wrote.

Justice Kern wrote that, by taking an alternative approach, “These courts acknowledge that the nullity approach can result in harsh consequences because it ultimately harms the person or entity in need of representation. These unintended harsh consequences are further worsened by the gap in legal services available to indigent persons.”

Justice Kern noted that the Stevens decision cited by Justice Myren “involved the filing of an answer by an attorney who was not licensed in South Dakota, not a notice of appeal.”

She wrote, “It is not so clear from SDCL 15-26A-4 that the timely filing and service of a notice of appeal by a nonattorney on behalf of the appellant, while perhaps a violation of SDCL 16-16-1 as it relates to the non-attorney filer, is a nullity that deprives this Court of jurisdiction to hear the appeal. In my view, depending on the circumstances of the case, particularly those involving appellants who may not be competent to file a notice of appeal on their own behalf, this Court could exercise its discretion to allow such appellants to proceed with a timely-filed appeal so long as they obtain legal counsel to represent them and file the briefs going forward.”

In Danielson’s case, Justice Kern stated that Judge Pekas had already provided Danielson an opportunity to get an attorney and Danielson hadn’t. “Thus, I agree that we must dismiss this appeal,” she concluded.