of South Dakota and Gant, in his official capacity, are also properly before the court because they have answered the amended complaint. A review of the record reveals that Chris Nelson, in his personal capacity, Jeff Gromer, in his personal and official capacity, and Mike Milstead, in his personal capacity, have not been served, and they have not answered the complaint or amended complaint. 2 . During the evidentiary hearing, Smith appeared to drop the facial challenge to SDCL 23-7-7.1(8). The court will nonetheless briefly address the issue. 3 . In United States v. Stevens, - U.S. -, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010), the Supreme Court acknowledged the existence of a possible alternative standard with regard to a facial attack that might apply in "a typical case.” Id. at 1587 (<HOLDING>). During the evidentiary hearing, Smith
holding that a statute is certainly not so plainly unconstitutional that the failure of the trial court  to hold it so can be regarded as a plain error or a culpable neglect of judicial duty internal citation omitted recognizing that a plaintiff may be able to establish that the statute is unconstitutional by showing that the statute lacks any plainly legitimate sweep  citation omitted holding that defendants bear the burden of showing that the challenged act was objectively reasonable citation omitted holding that a statute must be construed so that no part of the statute is rendered surplusage or superfluous internal quotation marks and citation omitted holding that a statute may be facially challenged only  by establishing that no set of circumstances exists under which the statute would be valid ie that the law is unconstitutional in all of its applications or at least that the statute lacks a plainly legitimate sweep 