Introduction

In Rowe v. Rowe, 2025 S.D. 40, the Supreme Court of South Dakota addressed whether a letter sent to the Rosebud Sioux Tribe’s Tribal Land Enterprise (TLE) seeking cancellation of a lessee’s tribal land leases is protected by South Dakota’s absolute privilege for communications made in “official proceedings” under SDCL 20-11-5(2). The dispute arose after Dione Rowe, with assistance from her adult daughters, wrote to the TLE asking it to rescind her ex-husband Kevin Rowe’s leases on tribal land adjacent to Dione’s mother’s property and to lease that land to the daughters instead. The TLE rescinded Kevin’s leases at its next regular board meeting. Kevin sued Dione in state court for tortious interference with a business relationship based solely on the contents and effect of the letter.

The circuit court denied Dione’s summary judgment motion, holding the absolute privilege did not apply because the TLE failed to provide Kevin notice before rescinding his leases and therefore the meeting was not an “official proceeding authorized by law.” The Supreme Court granted intermediate appeal and reversed. The opinion squarely addresses multiple issues of first impression or clarification in South Dakota law:

• Whether SDCL 20-11-5(2)’s absolute privilege applies beyond defamation to tortious interference claims.
• Whether a tribal enterprise’s board meeting constitutes an “official proceeding authorized by law.”
• Whether procedural defects in the proceeding (lack of notice) negate the privilege.
• Whether the privilege is an affirmative defense that must be pleaded, and if not pleaded, whether it can be saved by implied consent at summary judgment.

Summary of the Opinion

The Supreme Court, per Chief Justice Jensen, held:

• SDCL 20-11-5(2)’s official proceedings absolute privilege applies to claims of tortious interference with a business relationship, not just defamation or closely related torts. Its purpose is to “avoid all liability for the communication.”
• The TLE board meeting is an “official proceeding authorized by law.” The TLE is a subordinate tribal entity chartered under Section 17 of the Indian Reorganization Act (25 U.S.C.A. § 5124) and operates as part of the Tribe’s governmental structure with quasi-legislative/administrative responsibilities over tribal lands.
• Communications initiating an official proceeding—such as Dione’s letter asking the TLE to rescind Kevin’s leases—are “an indispensable part” of the proceeding and thus privileged.
• Alleged procedural errors in the proceeding (here, lack of notice to Kevin before the rescission) do not defeat the privilege; the statute focuses on the nature of the proceeding, not the correctness of the action taken.
• The absolute privilege under SDCL 20-11-5(2) is an affirmative defense that ordinarily must be pleaded. However, Dione’s failure to plead was excused because the issue was tried by implied consent at summary judgment without prejudice to Kevin.

The Court reversed the circuit court’s denial of summary judgment and remanded with instructions to enter summary judgment in favor of Dione.

Analysis

Precedents Cited and Their Influence

• Hughes v. O’Connor, 313 N.W.2d 463 (S.D. 1981): Emphasized that the absolute privilege “avoids all liability for the communication.” This formulation undergirds the Court’s extension of the privilege beyond defamation to tortious interference claims.
• Janklow v. Keller, 241 N.W.2d 364 (S.D. 1976): Dismissed both defamation and deceit counts where both were based on statements made in a judicial proceeding. The Court reiterated that re-labeling claims cannot circumvent the privilege—an approach directly supporting application to tortious interference.
• Harris v. Riggenbach, 2001 S.D. 110, 633 N.W.2d 193: Applied SDCL 20-11-5(2) to bar defamation and non-defamation torts (negligence, IIED, NIED) arising from the same communication; reinforced that the privilege’s “salutary purpose” cannot be thwarted by different labels.
• Gantvoort v. Ranschau, 2022 S.D. 22, 973 N.W.2d 225: Reaffirmed the privilege avoids all liability and set out the four-part test for SDCL 20-11-5(2): (1) made in an official proceeding; (2) some connection or logical relation to the action; (3) made to achieve the objects of the action; and (4) involved litigants or other participants authorized by law. Gantvoort also recognized the breadth of the privilege even where statements may be misguided.
• Pawlovich v. Linke, 2004 S.D. 109, 688 N.W.2d 218; Waln v. Putnam, 86 S.D. 385, 196 N.W.2d 579 (1972): Clarified that “official proceedings” are those akin to judicial or legislative proceedings (e.g., administrative boards; quasi-judicial/legislative) and not simply private corporate meetings. A body must possess oversight authority derivative of the legislature (or, by analogy here, sovereign authority).
• Flugge v. Wagner, 532 N.W.2d 419 (S.D. 1995): Stated that communications initiating proceedings are an “indispensable part” of them; defined “connection or logical relation” as a broad, non-technical relevancy assessed liberally; also held privilege persists even if no action is ultimately taken.
• Peterson v. City of Mitchell, 499 N.W.2d 911 (S.D. 1993): Quoted for the “with or without malice” hallmark of absolute privilege, underscoring its breadth.
• Two Eagle v. Avel Ecare, LLC, 2025 S.D. 3, 17 N.W.3d 242: Cited for the proposition that public policy in South Dakota stems from the Constitution, statutes, and judicial decisions—framing SDCL 20-11-5(2) as a legislative policy choice.
• Olesen v. Town of Hurley, 2004 S.D. 136, 691 N.W.2d 324: Recognized sovereign immunity as an affirmative defense. The Court used this analogy to hold that the absolute privilege—likewise animated by public policy considerations—is an affirmative defense.
• Century 21 Associated Realty v. Hoffman, 503 N.W.2d 861 (S.D. 1993): Reiterated the requirement to specifically plead affirmative defenses or face waiver, setting the stage for the waiver debate in Rowe.
• Schecher v. Shakstad Electric & Machine Works, Inc., 414 N.W.2d 303 (S.D. 1987): Questioned using Rule 15(b) (implied consent) at summary judgment, but acknowledged other courts allow it post-trial. Rowe advances the analysis by relying on federal cases allowing Rule 15(b) at summary judgment.
• Brand v. National Union Fire Insurance Co. of Pittsburgh, PA, 934 F.3d 799 (8th Cir. 2019); Myers v. Moore, 326 F.R.D. 50 (S.D.N.Y. 2018): Federal authority supporting application of Rule 15(b)’s implied consent doctrine at the summary judgment stage.
• Marble Ridge Capital LP v. Neiman Marcus Group, Inc., 611 S.W.3d 113 (Tex. App. 2020); Thomas v. St. Luke’s Health System, Inc., 869 F. Supp. 1413 (N.D. Iowa 1994), aff’d, 61 F.3d 908 (8th Cir. 1995): Out-of-jurisdiction cases treating similar privileges as affirmative defenses that must be pleaded.
• Mosley v. Observer Publishing Co., 619 A.2d 343 (Pa. Super. Ct. 1993): Cited for the proposition that once an absolute privilege attaches, it is not lost—even where the underlying process allegedly contains false statements or defects—bolstering the Court’s conclusion that lack of notice does not vitiate the privilege.
• Schwaiger v. Avera Queen of Peace Health Services, 2006 S.D. 44, 714 N.W.2d 874: The existence of privilege is a question of law—underscoring why additional factual discovery was unnecessary for Kevin to oppose summary judgment.
• Blanchard v. Mid-Century Insurance Co., 2019 S.D. 54, 933 N.W.2d 631: Affirm-on-any-basis principle acknowledged by Kevin; the Supreme Court nonetheless reached and decided the privilege issues.
• Earll v. Farmers Mutual Insurance Co. of Nebraska, 2025 S.D. 20, 19 N.W.3d 536: Applied for the de novo standard on summary judgment review.

Legal Reasoning

The Court’s analysis proceeds in four principal steps.

1) The absolute privilege applies to tortious interference claims

Although SDCL 20-11-5 is codified in the chapter on defamation, the text of subsection (2) does not limit its privilege to defamation. It covers a “communication” made “[i]n any legislative or judicial proceeding, or in any other official proceeding authorized by law.” Consistent with Hughes and Janklow, the Court reiterated the privilege’s purpose: to “avoid all liability for the communication.” If a plaintiff could evade the privilege by re-labeling his claim—for example, from defamation to tortious interference—the statute’s purpose would be “frustrated.” Prior cases dismissing non-defamation claims (deceit, negligence, IIED/NIED, invasion of privacy) based on privileged communications confirmed the broader application. The Court thus held that SDCL 20-11-5(2) “applies with equal force” to claims of tortious interference with a business relationship.

2) The four-part test is satisfied; the TLE board meeting is an official proceeding

Applying the Gantvoort test:

• Official proceeding: The TLE, chartered by the Rosebud Sioux Tribe under the authority of the Indian Reorganization Act (Section 17, now 25 U.S.C.A. § 5124), manages tribal land interests and leases on behalf of the Tribe. The Court recognized the TLE’s functions as quasi-legislative/administrative exercises of sovereign tribal authority, bringing TLE board meetings within “official proceedings authorized by law.” Under Pawlovich and Waln, such bodies must resemble judicial/legislative tribunals and possess authority derivative of sovereign lawmaking. The TLE meets that standard.
• Connection or logical relation: Dione’s letter explicitly asked the TLE to rescind Kevin’s leases and to consider leasing the parcels to her daughters. That request squarely implicated the TLE’s leasing authority and directly preceded the rescission vote. Adopting Flugge’s nontechnical and liberal relevancy standard, the Court found a sufficient logical relation.
• Made to achieve the objects of the action: The communication sought Board action within the scope of the TLE’s authority—rescission of leases—thereby aiming to “achieve the objects” of the proceeding.
• Participants authorized by law: Communications to the tribunal initiating its exercise of authority are treated as part of the proceeding, and the speaker is a participant for privilege purposes. As in Flugge, initiating communications are “indispensable” to the process and fall within the privilege.

3) Procedural defects in the proceeding (lack of notice) do not negate the privilege

The circuit court concluded the privilege failed because the TLE did not provide Kevin notice before rescission, contrary to TLE’s procedures. The Supreme Court rejected that approach as misdirected. SDCL 20-11-5(2) focuses on whether the communication was made in an “official proceeding authorized by law,” not whether the tribunal’s action complied with all procedural rules. As Gantvoort and Mosley demonstrate, even misguided or allegedly false statements within an official proceeding remain privileged; and per Flugge, privilege can attach even if the body takes no action. Conditioning the privilege on the absence of procedural error would make its availability unpredictable and inconsistent with its absolute character. The lack of notice therefore does not defeat the privilege.

4) Privilege is an affirmative defense; here saved by implied consent at summary judgment

The Court held, for the first time, that the absolute privilege under SDCL 20-11-5(2) is an affirmative defense. Like sovereign immunity (Olesen), it is an avoidance defense grounded in public policy that can completely bar liability. As a result, it ordinarily must be pleaded (Century 21). However, failure to plead does not necessarily compel waiver if the issue is tried by express or implied consent under SDCL 15-6-15(b). Citing federal cases that apply the federal counterpart at the summary judgment stage (Brand; Myers), the Court assessed prejudice and opportunity to litigate. Because privilege is a question of law (Schwaiger), Kevin had a full opportunity to brief and oppose the issue, did not seek a continuance for additional discovery under SDCL 15-6-56(f), and largely did not dispute the material facts. He was therefore not prejudiced, and the defense was treated as tried by implied consent. No waiver occurred.

Impact

• No pleading end-runs around the privilege: Plaintiffs cannot circumvent the official-proceedings privilege by styling claims as tortious interference, negligence, IIED, privacy, or other labels if the claims are based on the privileged communication. Expect more early dispositive motions when the gravamen of liability is a communication made to or within an official proceeding.
• Coverage of tribal administrative proceedings: The decision confirms that “official proceedings authorized by law” encompass proceedings of sovereign tribal entities chartered under federal law and tribal constitutions/charters. Communications to tribal boards like the TLE enjoy the same absolute privilege as communications to state administrative bodies, reinforcing cross-sovereign comity and uniformity in privilege doctrine in South Dakota courts.
• Robust protection even amid procedural missteps: The privilege’s attachment does not depend on the correctness or procedural regularity of the tribunal’s actions. Litigants objecting to the outcome of such proceedings must pursue appropriate administrative or tribal remedies; tort suits targeting the communication itself will face dismissal if the four-part test is satisfied.
• Affirmative defense practice pointers: Defendants should plead SDCL 20-11-5(2) expressly to avoid waiver fights. Plaintiffs opposing late-raised privilege should promptly seek discovery and continuances under SDCL 15-6-56(f) and show concrete prejudice; absent that, courts may find implied consent.
• Boundaries remain: The privilege protects communications, not conduct. Independent wrongful acts (e.g., physical interference, threats, or other non-communicative tortious conduct) remain actionable. And the proceeding must be truly “official”—communications to purely private organizations lacking sovereign authority are not covered (Pawlovich/Waln).
• Policy balance: Absolute privilege sometimes shelters harsh or inaccurate statements. That is a deliberate policy choice to ensure candid reporting to decision-makers. Countervailing protections lie in procedural safeguards of the tribunal, potential sanctions within the proceeding, and the availability of claims based on non-communicative conduct.

Complex Concepts Simplified

• Absolute vs. qualified privilege: Absolute privilege bars liability for the communication regardless of malice or falsity when made in specified proceedings. Qualified privilege can be lost by malice or abuse. SDCL 20-11-5(2) confers an absolute privilege.
• Official proceeding authorized by law: Not limited to courts or legislatures; includes administrative/quasi-judicial/quasi-legislative bodies empowered by sovereign law (statutory, constitutional, or, as here, tribal/federal authority). Purely private board meetings generally do not qualify.
• Logical relation test: The communication needs a general, nontechnical connection to the subject of the proceeding. Courts apply a liberal standard to favor privilege.
• Initiating communications: Reports, complaints, petitions, or letters that trigger official consideration are part of the proceeding and protected.
• Affirmative defense and implied consent: An affirmative defense must be pleaded in the answer, but if both parties litigate the issue without objection and without prejudice, the court may treat it as if pleaded (implied consent), even at summary judgment.
• Tribal entities and the IRA: The Indian Reorganization Act allows tribes to charter subordinate organizations. When such entities exercise governmental functions (like leasing tribal lands), their proceedings can be “official” for privilege purposes under South Dakota law.

Conclusion

Rowe v. Rowe significantly clarifies and extends South Dakota’s absolute privilege for communications in official proceedings. The Court holds that SDCL 20-11-5(2) applies beyond defamation to tortious interference and other claims premised on the same communication; that tribal administrative board proceedings are “official proceedings authorized by law”; that initiating communications are privileged; and that procedural defects in the proceeding do not defeat the privilege. The Court also formalizes that the privilege is an affirmative defense but preserves flexibility by allowing implied consent at summary judgment where no prejudice is shown.

The decision strengthens the policy of encouraging candid participation in governmental and tribal decision-making processes, prevents artful pleading from undermining that policy, and provides practical guidance for pleading and litigating the privilege. For future cases, the key inquiry will remain whether the communication was made to or in an official proceeding, bore a logical relationship to that proceeding, sought to achieve its objects, and involved authorized participants. When those elements are met, SDCL 20-11-5(2) forecloses tort liability for the communication—no matter the label attached to the claim.