author: SANDSTROM, Justice. KAPSNER, Justice,

text:
    2006 ND 56
    In the Matter of G.R.H. John P. Van Grinsven, III, Ward County State's Attorney, Petitioner and Appellee v. G.R.H., Respondent and Appellant.
    No. 20040287.
    Supreme Court of North Dakota.
    March 29, 2006.

      John P. Van Grinsven III, State’s Attorney, Minot, NT)., for petitioner and appel-lee.
    Eric Paul Baumann, Minot, N.D., for respondent and appellant.
    Jean R. Mullen, Office of Attorney General, Bismarck, N.D., for amicus curiae.
   SANDSTROM, Justice.

[¶ 1] G.R.H. appeals from an order involuntarily committing him to the care and custody of the executive director of the Department of Human Services as a sexually dangerous individual. He argues the evidence was insufficient to support the order, his commitment as a sexually dangerous individual violates the due process and double jeopardy provisions of the state and the federal constitutions, and the denial of a judicial determination of his least restrictive treatment also violates due process and double jeopardy. We affirm.

I

[¶ 2] In 1994, G.R.H., then 19 years old, was convicted in Ward County of gross sexual imposition for sexual acts with a victim less than fifteen years old and sentenced to ten years in the North Dakota State Penitentiary, with six years suspended. In 1997, G.R.H. was released from custody and placed on probation. In 1998, the court revoked G.R.H.’s probation for the gross sexual imposition conviction and ordered him incarcerated for 90 days, with the balance of his sentence suspended. Within 20 days after G.R.H. was released from custody in January 1999, he was charged in Burleigh County with corruption or solicitation of a minor for engaging in a sexual act with a minor who was older than 15 when he was at least 22; with delivery of alcohol to a minor; and with failure to register as a sexual offender. G.R.H. pled guilty to those charges, and the district court revoked his probation for the 1994 conviction for gross sexual imposition.

[¶ 3] Before G.R.H.’s release from custody in 2004, the Ward County State’s Attorney petitioned to commit him as a sexually dangerous individual under N.D.C.C. ch. 25-03.3. The district court found probable cause to believe G.R.H. was a sexually dangerous individual and transferred him to the North Dakota State Hospital for further evaluation. See N.D.C.C. § 25-03.3-11. G.R.H. was evaluated by two psychologists at the State Hospital, and he also received an independent evaluation by a third psychologist. See N.D.C.C. § 25-03.3-12. After a subsequent commitment hearing under N.D.C.C. § 25-03.3-13, the district court decided G.R.H. was a sexually dangerous individual under N.D.C.C. § 25-03.3-01(8), finding he “has engaged in sexually predatory conduct and has a congenital or acquired condition that is manifested by an anti-social personality disorder that makes [him] likely to engage in further acts of sexually predatory conduct which constitutes a danger to the physical or mental health or safety of others.” The court committed G.R.H. to the care, custody, and control of the executive director of the Department of Human Services. See N.D.C.C. § 25-03.3-13.

[¶ 4] G.R.H. appealed, and while his appeal was pending, we granted his motion for a remand to the district court for a supplemental hearing. At the supplemental hearing, G.R.H. argued committing him as a sexually dangerous individual was unconstitutional, given his diagnosis of antisocial personality disorder and his ability to control his behavior. He also argued he was unconstitutionally denied a judicial determination of his least restrictive treatment. After an evidentiary hearing, the district court confirmed its prior commitment order. The court construed N.D.C.C. § 25-03.3-01(8) to mean an individual subject to commitment as a sexually dangerous individual must have serious difficulty controlling his or her behavior. The court found G.R.H. suffers from a serious lack of ability to control his behavior, and confirmed its prior decision that he was a sexually dangerous individual. The court also construed N.D.C.C- § 25-03.3-13 to require the executive director of the Department of Human Services, and not the court, to decide the least restrictive form of treatment for a sexually dangerous individual.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8 and N.D.C.C. § 25-03.3-02. G.R.H.’s appeal is timely under N.D.C.C. § 25-03.3-19. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 25-03.3-19.

II

[¶ 6] Chapter 25-03.3, N.D.C.C, authorizes the involuntary civil commitment of a sexually dangerous individual, which is defined in N.D.C.C. § 25-03.3-01(8) to mean:

[A]n individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.

That definition requires three elements before a person may be involuntarily committed as a sexually dangerous individual: (1) the individual has engaged in sexually predatory conduct; (2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; and (3) the disorder makes the individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. “Sexually predatory conduct” includes engaging in a sexual act or sexual contact with a victim less than fifteen years old, or with a minor victim when the actor is an adult. N.D.C.C. § 25-03.3-01(9)(a)(4) and (7).

III

[¶ 7] G.R.H. does not dispute that an anti-social personality disorder is a personality disorder under the definition of a sexually dangerous individual in N.D.C.C. § 25-03.3-01(8). He argues, however, there is insufficient evidence he suffers from an anti-social personality disorder, because all three psychologists testified that a diagnosis of an anti-social personality disorder requires personality traits to be inflexible and all three psychologists acknowledged his behavior had improved in recent years. He claims his behavior at the State Hospital has been exemplary, and he has exhibited none of the patterns of behavior which form the basis for a diagnosis of anti-social personality disorder while he has been at the State Hospital. He also claims a diagnosis of antisocial personality disorder requires a pervasive pattern of disregard for rights to begin in childhood or early adolescence, and the only evidence that his behavior began in his childhood or early adolescence was that he ran away from home and had problems with his mother. He claims there is insufficient evidence he suffers from a personality disorder as required by N.D.C.C. § 25-03.3-01(8).

[¶ 8] We apply “a modified clearly erroneous” standard of review to commitments of sexually dangerous individuals under N.D.C.C. ch. 25-03.3. In the Interest of D.V.A., 2004 ND 57, ¶ 7, 676 N.W.2d 776; In the Interest of M.B.K., 2002 ND 25, ¶ 9, 639 N.W.2d 473; In the Interest of M.D., 1999 ND 160, ¶ 34, 598 N.W.2d 799. We will affirm a district court’s commitment order unless the order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence. D.V.A., at ¶ 7; M.B.K., at ¶ 9; M.D., at ¶ 34.

[¶ 9] At both evidentiary hearings, all three psychologists testified they diagnosed G.R.H. with an anti-social personality disorder. G.R.H.’s claim that his behavior had improved while in a controlled environment at the State Hospital does not preclude a finding of an antisocial personality disorder. His “improvement” may be laudable and eventually may lead to a determination that he is not a sexually dangerous individual, but the issue for the district court and this Court is whether this record adequately supports the diagnosis of an anti-social personality disorder. Under our modified clearly erroneous standard of review, we conclude the district court’s finding is supported by clear and convincing evidence and is not clearly erroneous.

IV

[¶ 10] G.R.H. nevertheless argues that, given his diagnosis of anti-social personality disorder and his ability to control his behavior, his commitment as a sexually dangerous individual violates the due process and double jeopardy provisions of the state and federal constitutions. G.R.H. argues his commitmept violates due process and double jeopardy under Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) and Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), because his only potential disorder is an anti-social personality disorder and there was no evidence he cannot control his behavior. Relying on Crane, he claims his diagnosis of an anti-social personality disorder is not distinguishable from the rudimentary form of that disorder found in the dangerous but typical recidivist convicted in an ordinary criminal case. He claims the evidence about his disorder does not establish a special and serious lack of ability to control his behavior under Crane.

[¶ 11] In Hendricks, the United States Supreme Court considered a substantive due process challenge to the provisions of Kansas’ Sexually Violent Predator Act, which authorized involuntary civil commitment of persons who, due to a mental abnormality or a personality disorder, were likely to engage in predatory acts of sexual violence. 521 U.S. at 350, 117 S.Ct. 2072. The Court held the Act’s definition of “mental abnormality” satisfied substantive due process. Id. at 356, 117 S.Ct. 2072. The Court said states may provide for involuntary civil commitment of people who are unable to control their behavior and pose a danger to public health and safety, provided the confinement takes place under proper procedures and.eviden-tiary standards. Id. at 357, 117 S.Ct. 2072. The Court said the Kansas statute satisfied those standards, because it required evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not confined. Id. The Court explained the Kansas statute required a finding of future dangerousness linked to the existence of a “mental abnormality” or “personality disorder” that made it difficult, if not impossible, for the person to control his or her dangerous behavior, which narrowed the class of persons eligible for confinement to those who are unable to control .their dangerousness. Id. at 358, 117 S.Ct. 2072. The Court further explained the nomenclature used as the standard for civil commitment was not controlling; rather, the common thread was the individual’s inability to control his or her dangeróusness. Id. at 359-60, 117 S.Ct. 2072. The Court said án individuars lack of volitional control, coupled with a prediction of future dangerousness, distinguished that individual from other dangerous persons more properly dealt with exclusively through criminal proceedings. Id. at 360, 117 S.Ct. 2072.

[¶ 12] In Crane, the United States Supreme Court again considered a substantive due process challenge to the Kansas law in the context of the Kansas Supreme Court’s determination that Hendricks required the State to prove the committed individual was completely unable to control his behavior. Crane, 534 U.S. at 409-15; 122 S.Ct. 867. The Court held that Hendricks did not require a total or complete lack of control. Crane, at 411, 122 S.Ct. 867. The Court said most severely ill people retain some ability to control their behavior and the insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities. Id. at 412, 122 S.Ct. 867. The Court said, however, the Constitution does not permit commitment as a dangerous sexual offender without any lack-of-control determination and recognized the constitutional significance of distinguishing a dangerous sexual offender subject to civil commitment from other dangerous persons who are more properly dealt with exclusively through criminal proceedings. Id. The Court explained that distinction was neees-s'ary to prevent civil commitment from becoming a mechanism for retribution or general deterrence, which are functions of criminal law and not civil commitment. Id. The Court held lack of control for civil commitment purposes meant there must be proof of serious difficulty in controlling behavior, which must be sufficient to distinguish the dangerous sexual offender, whose serious mental illness, abnormality, or disorder subjects him to civil commitment, from the dangerous but typical recidivist convicted in the ordinary criminal case. Id. In reaching that conclusion, the Court again emphasized that states have considerable leeway to define mental abnormalities and personality disorders that make an individual eligible for involuntary civil commitment. Id.

[¶ 13] Crane and Hendricks reject the idea that due process requires a total or complete lack of control for involuntary civil commitment of a sexually dangerous individual; rather, they require “proof of serious difficulty in controlling behavior.” Crane, 534 U.S. at 413, 122 S.Ct. 867. See Hendricks, 521 U.S. at 358, 117 S.Ct. 2072. Other courts have applied Crane and construed laws for involuntary civil commitment of sexually dangerous individuals to require a nexus between a disorder and future dangerousness, which, in turn, provides proof that the individual has serious difficulty controlling his or her behavior. See In re Matter of Leon, 204 Ariz. 15, 59 P.3d 779, 787 (2002); People v. Williams, 31 Cal.4th 757, 3 Cal.Rptr.3d 684, 74 P.3d 779, 790-92 (2003), cert. denied, 540 U.S. 1189, 124 S.Ct. 1431, 158 L.Ed.2d 98 (2004); In re Detention of Varner, 207 Ill.2d 425, 279 Ill.Dec. 506, 800 N.E.2d 794, 798-99 (2003), cert. denied, 540 U.S. 1225, 124 S.Ct. 1519, 158 L.Ed.2d 164 (2004); State v. Gibson, 187 Or.App. 207, 66 P.3d 560, 566-67 (2003); In re Commitment of W.Z., 173 N.J. 109, 801 A.2d 205, 216 (2002); In re Treatment and Care of Luckabaugh, 568 S.E.2d 338, 349 (S.C.2002); In re Commitment of Almaguer, 117 S.W.3d 500, 505-06 (Tex.App.2003); Shivaee v. Virginia, 270 Va. 112, 613 S.E.2d 570, 576, cert. denied, — U.S. —, 126 S.Ct. 626, 163 L.Ed.2d 509 (2005); In re Detention of Thorell, 149 Wash.2d 724, 72 P.3d 708, 715-16 (2003), cert. denied, 541 U.S. 990, 124 S.Ct. 2015, 158 L.Ed.2d 496 (2004); In re Commitment of Laxton, 2002 WI 82, ¶¶ 21-22, 254 Wis.2d 185, 647 N.W.2d 784.

[¶ 14] In Laxton, 2002 WI 82, ¶¶ 21-22, 254 Wis.2d 185, 647 N.W.2d 784, the Wisconsin Supreme Court offered a typical explanation of that nexus:

[T]he required proof of lack of control, therefore, may be established by evidence of the individual’s mental disorder and requisite level of dangerousness, which together distinguish a dangerous sexual offender who has serious difficulty controlling his or her behavior from a dangerous but typical recidivist.
Wisconsin [Stat.] ch. 980 [ (1997-98) ] satisfies this due process requirement because the statute requires a nexus between the mental disorder and the individual’s dangerousness. Proof of this nexus necessarily and implicitly involves proof that the person’s mental disorder involves serious difficulty for the person to control his or her behavior. The definition of a sexually violent person requires, in part, that the individual is “dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.” Wis. Stat. § 980.01(7) (emphasis added). As we recognized in [State v.] Post, [197 Wis.2d 279, 541 N.W.2d 115 (Wis.1995),] these statutory requirements do not sweep too broadly. The nexus — linking a mental disorder with dangerousness by requiring that the mental disorder predispose the individual to engage in acts of sexual violence — narrowly tailors the scope of ch. 980 to those most dangerous sexual offenders whose mental condition predisposes them to re-offend.

[¶ 15] The interpretation of N.D.C.C. ch. 25-03.3 is a question of law, which is fully reviewable on appeal. See Ash v. Traynor, 2000 ND 75, ¶ 4, 609 N.W.2d 96. The primary purpose of statutory construction is to ascertain the legislature’s intent. Douville v. Pembina County Water Res. Dist., 2000 ND 124, ¶ 9, 612 N.W.2d 270. In ascertaining legislative intent, we look first to the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. Id. If the plain language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because legislative intent is presumed clear from the face of the statute. County of Stutsman v. State Historical Soc’y, 371 N.W.2d 321, 325 (N.D.1985). If the language of a statute is ambiguous, however, a court may resort to extrinsic aids, including legislative history, to interpret the statute. Id. We construe statutes to avoid constitutional infirmities. Kjolsrud v. MKB Mgmt. Corp., 2003 ND 144, ¶ 7, 669 N.W.2d 82.

[¶ 16] North Dakota law defines a “sexually dangerous individual” as an individual who has engaged in sexually predatory conduct and has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes the individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. N.D.C.C. § 25-03.3-01(8). Under that definition, the requisite disorder or dysfunction must make the individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. We have said “likely to engage in further acts of sexually predatory conduct” means the individual’s propensity towards sexual violence is of such a degree as to pose a threat to others. M.B.K, 2002 ND 25, ¶ 18, 639 N.W.2d 473. The plain language in our statute thus requires a causal relationship or nexus between an individual’s disorder and dangerousness which establishes a likelihood of re-offending.

[¶ 17] Chapter 25-03.3, N.D.C.C., was enacted in 1997. See 1997 N.D. Sess. Laws eh. 243. The legislative history for the definition of sexually dangerous individual also confirms that the language of our statute requires a causal relationship or nexus between an individual’s disorder and dangerousness, because the individual “must be diagnosed with a mental disorder which can be tied by expert testimony to the individual’s inability to control his or her behavior and which would, therefore, likely result in further sexually predatory conduct.” See Hearing on H.B. 1047 Before the House Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 14, 1997) (section-by-section analysis prepared by Office of Attorney General); Hearing on H.B. 1097 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (March 5, 1997) (section-by-section analysis prepared by Office of Attorney General). As originally introduced, the definition of sexually dangerous individual required the individual to have a “mental disorder,” which was based on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed-Rev.) (1994), and which was separately defined in the statute to mean “a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction.” Hearing on H.B. 1047 Before the House Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 14, 1997) (section-by-section prepared by Office of Attorney General). The legislative history for that provision indicates that the definition of mental disorder referenced disorders manifested by a lack of self-control. Id. During the legislative process, the definition of a sexually dangerous individual was amended to its current form in response to a concern that the original definition of “mental disorder” was circular because it included the term “mental disorder.” Hearing on H.B. 1047 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (March 5, 1997) (section-by-section prepared by Office of Attorney General). The legislative history, however, indicates that amendment continued the intent that the “individual must be diagnosed with a mental disorder which can be tied by expert testimony to the individual’s inability to control his or her behavior and which would, therefore, likely result in further sexually predatory conduct.” Id.

[¶ 18] Consistent with the language in our statute and to avoid any possible constitutional infirmity, we construe the definition of a sexually dangerous individual to mean that proof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in the ordinary criminal case. We conclude that nexus between the requisite disorder and future dangerousness satisfies the due process requirements of Crane.

[¶ 19] At the supplemental evi-dentiary hearing on remand, the State’s two expert psychologists testified G.R.H. suffers from a serious lack of ability to control his behavior. The district court found clear and convincing evidence that G.R.H. has a serious lack of ability to control his behavior. Under our modified clearly erroneous standard of review, we conclude the district court’s finding is supported by clear and convincing evidence and is not clearly erroneous. We therefore reject G.R.H.’s claim that his commitment as a sexually dangerous individual violates due process under Crane.

V

[¶ 20] G.R.H. argues his commitment violates double jeopardy. In Interest of M.D., this Court held N.D.C.C. ch. 25-03.3 creates a civil procedure for involuntary commitment of sexually dangerous individuals and does not violate double jeopardy. 1999 ND 160, ¶¶ 24-31, 598 N.W.2d 799. See also Hendricks, 521 U.S. at 360-70, 117 S.Ct. 2072 (holding Kansas statute was not criminal proceeding and did not violate double jeopardy). Our interpretation of N.D.C.C. ch. 25-03.3 is consistent with Crane and Hendricks, and our decision in M.D. is dispositive of G.R.H.’s double jeopardy argument.

VI

[¶ 21] G.R.H. argues the denial of a judicial determination of alternatives for his least restrictive treatment violates due process and double jeopardy. Under N.D.C.C. § 25-03.3-13, if the district court finds an individual to be a sexually dangerous individual, the court shall commit the individual to the care, custody, and control of the executive director of the Department of Human Services, and “the executive director shall place the [individual] in an appropriate facility or program at which treatment is available. The appropriate treatment facility or program must be the least restrictive available treatment facility or program necessary to achieve the purposes” of N.D.C.C. ch. 25-03.3.

[¶ 22] The plain language of N.D.C.C. § 25-03.3-13 authorizes the court to commit a sexually dangerous individual to the care, custody, and control of the executive director of the Department of Human Services and authorizes the executive director to place a sexually dangerous individual in an appropriate facility or program for treatment, which must be the least restrictive available treatment facility or program necessary to achieve the purposes of N.D.C.C. ch. 25-03.3. Those statutory provisions require the executive director, not the court, to make that decision. We conclude the district court correctly interpreted the plain language of N.D.C.C. § 25-03.3-13 to authorize the executive director to decide the least restrictive available treatment for a sexually dangerous individual.

[¶ 23] G.R.H. claims if a court is prohibited from determining the least restrictive treatment for a sexually dangerous individual, N.D.C.C. ch. 25-03.3 is unconstitutional because it does not provide for judicial review of the least restrictive alternative determination in violation of the due process and double jeopardy clauses of the state and federal constitutions. He claims the law violates double jeopardy because the failure to provide due process safeguards negates the civil nature of the law.

[¶ 24] Due process “requires that the conditions and duration of confinement ... bear some reasonable relation to the purpose for which persons are committed.” Seling v. Young, 531 U.S. 250, 265, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001) (citing Foucha v. Louisiana, 504 U.S. 71, 79, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) and Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)). Chapter 25-03.3, N.D.C.C., requires sexually dangerous individuals to be treated in the least restrictive manner necessary to treat the individual and to protect society, and the issue in this case is whether a determination of that issue by the executive director satisfies procedural due process. Procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case. Gray v. North Dakota Game & Fish Dep’t, 2005 ND 204, ¶ 28, 706 N.W.2d 614.

[¶ 25] Under N.D.C.C. ch. 25-03.3, a person alleged to be a sexually dangerous individual is entitled to a panoply of pre-commitment and post-commitment procedures that are sufficient to provide the individual with due process. A person committed as a sexually dangerous individual is entitled to certain post-commitment procedures in N.D.C.C. §§ 25-03.3-17 and 25-03.3-18, including the least restrictive treatment and an annual examination and report to the committing court. At the time of the annual examination, the committed individual has the right to have an expert examine the individual, and, if the individual is indigent, the court shall appoint a qualified expert to examine the committed individual and report to the court. N.D.C.C. § 25-03.3-17(2). The court may order further examination and investigation of the committed individual and the court may set a further hearing at which the committed individual is entitled to be present and to have the benefit of the protections afforded at the original commitment proceeding. N.D.C.C. § 25-03.3-17(4). See M.D., 1999 ND 160, ¶ 28, 598 N.W.2d 799. The executive director may petition a committing court at any time for the discharge of the committed individual. N.D.C.C. § 25-03.3-17(5). The executive director annually shall provide the committed individual with written notice that the individual has a right to petition the court for discharge. N.D.C.C. § 25-03.3-18(1). If a committed individual files a petition for discharge and has not had a hearing under N.D.C.C. §§ 25-03.3-17 and 25-03.3-18 during the preceding year, the committed individual has a right to a hearing on the petition for discharge, at which the committed individual is entitled to be present and to have the benefit of the protections afforded at the original commitment proceeding. A committed individual has a right to appeal from an order of commitment or any order denying a petition for discharge. N.D.C.C. § 25-03.3-19.

[¶ 26] Section 25-03.3-24, N.D.C.C., deals with post-commitment community placement and was enacted in 2005. See 2005 N.D. Sess. Laws ch. 250. Under N.D.C.C. § 25-03.3-24, following commitment of a sexually dangerous individual, the executive director may conduct a risk management assessment of the individual for the purpose of determining whether the individual may be treated safely in the community on an outpatient basis. The executive director may place a committed individual in the community for treatment on an outpatient basis only by court order, and the executive director may petition the court at any time for community placement. Id. A court order for community placement is subject to enumerated restrictions and requirements. Id. The effect of the provisions for post-commitment community placement is that a court order for commitment as a sexually dangerous individual precludes outpatient treatment unless the court enters a subsequent order for outpatient treatment. See id.

[¶ 27] This record reflects that treatment as a sexually dangerous individual may take from seven to ten years, and an individual committed as a sexually dangerous individual is entitled to several post-commitment protections, including an annual review of the commitment and potential placement in outpatient treatment by court order. We conclude the procedures in N.D.C.C. ch. 25-03.3, which provide a person civilly committed as a sexually dangerous individual with pre-commitment and post-commitment safeguards designed to protect the person’s liberty interest as the person proceeds through the treatment process, satisfy procedural due process. We further conclude the provision authorizing the executive director to determine the least restrictive treatment does not negate the civil nature of the law and does not violate the double jeopardy provisions of the state and federal constitutions. M.D., 1999 ND 160, ¶¶ 24-31, 598 N.W.2d 799. We therefore hold the provision authorizing the executive director to determine the least restrictive treatment for a sexually dangerous individual does not violate due process or double jeopardy.

VII

[¶ 28] We affirm the commitment order.

[¶ 29] DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

KAPSNER, Justice,

dissenting.

[¶ 30] To deprive a person of his liberty for an indefinite period of time in the civil commitment of a sexually dangerous individual, the State must show by clear and convincing evidence that the individual to be committed has a disorder that makes the individual likely to engage in further acts of sexually predatory conduct and, because of the disorder, is likely to engage in those acts. N.D.C.C. § 25-03.3-01(8).

[T]here must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.

Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).

[¶ 31] The State failed to meet its burden in this case. Because I am firmly convinced the court’s decision is not supported by clear and convincing evidence, I would reverse. I, therefore, respectfully dissent.

I

[¶ 32] G.R.H. has spent much of the last ten years of his young life in prison for committing two sex crimes. A review of G.R.H.’s sex crimes shows that he is not the sort of sexually dangerous individual the civil commitment statute was designed for. Neither sex crime he committed had an element of force as part of the statutory definition of the crime. Neither of his crimes had elements for which one would ordinarily use the adjective “predatory.” The crimes involved no stalking of victims, no grooming of victims, no evidence of preplanning, no kidnapping or isolating of victims, and while each of his criminal acts involved a minor victim, G.R.H.’s age in relation to the victims age has to be considered when assessing the likelihood that he represents a threat to children. G.R.H. has never been diagnosed with any sort of sexual disorder such as pedophilia.

[¶ 33] His first sex violation involved voluntary sex between individuals that were five years apart in age. In 1994, when G.R.H. was 19 years old he had voluntary sex with a 14 — year-old. He met the girl at a club for persons 18 and older. The girl was in the club despite the age restrictions. The victim’s statement indicates the sex was voluntary although at 14 she was statutorily incapable of giving consent. G.R.H. pled guilty to the North Dakota equivalent to statutory rape and was sentenced to ten years in the North Dakota State Penitentiary with six years suspended. In 1997, G.R.H. was released from prison and placed on probation. Shortly after his release, his probation was revoked for failing to register as a sex offender and he was again incarcerated.

[¶ 34] In 1999, now 24 years old, G.R.H. was again convicted of committing a sex crime for engaging in oral sex with a 16-year-old. G.R.H. pled guilty to the charge of corruption or solicitation of a minor for engaging in a sexual act with a minor who was older than 15 when he was at least 22. Because G.R.H. pled guilty, there is no evidentiary record. There are conflicting reports on how this incident developed. Some reports suggest force was involved. Other reports state the girl was drunk at a party and was sexually involved with several men that night.

[¶ 35] Dr. Rosalie Etherington’s report stated:

[G.R.H.] had attempted sexual contact with D.D. earlier in the evening but she clearly declined. He then approached her again and after leading her into the downstairs bathroom he asked her to perform fellacio [sic] on him. D.D. indicated that she did not want to but he was very persistent. She then began but stopped and informed him she would not do it any longer. [G.R.H.] then grabbed her head and put his penis inside her mouth and forced her head back and forth upon his penis.

[¶ 36] G.R.H. committed crimes and he should be, and was, punished for his crimes. He has served his sentences for those crimes. While in prison, he received numerous hours of treatment and completed two separate sex offender treatment programs. Now, after spending nearly a decade in prison, G.R.H. is sentenced to an indefinite term of commitment based upon his two violations involving sex with minors.

II

[¶ 37] Chapter 25-03.3, N.D.C.C., authorizes the involuntary civil commitment of sexually dangerous individuals. The statute requires two findings: (1) sexually predatory conduct; and (2) some type of personality, sexual, or mental disorder that makes an individual “likely to engage in further acts of sexually predatory conduct.” N.D.C.C. § 25-03.3-01(8). The burden is on the State to show by clear and convincing evidence the defendant is a sexually dangerous individual. Interest of L.D.M., 2005 ND 177, ¶ 5, 704 N.W.2d 838.

[¶ 38] The first element, sexually predatory conduct, is not difficult to find under the statute as currently written. Many high school and college age individuals meet the definition of “sexual predator.” “Sexually predatory conduct” does not require a criminal conviction. N.D.C.C. § 25-03.3-01(9). An individual is a sexual predator under the statute for “[e]ngaging or attempting to engage” in voluntary sex with anyone under fifteen years old, regardless of the predator’s age. N.D.C.C. § 25 — 03.3—01(9) (a) (4). An individual is a sexual predator under the statute for “[ejngaging or attempting to engage” in voluntary sex with a minor when the actor is an adult. N.D.C.C. § 25-03.3-01(9)(a)(7). Thus, a sixteen-year-old sophomore in high school would be a sexual predator for having voluntary sex with a fourteen-year-old freshman, and an eighteen-year-old high school senior would be a sexual predator for having voluntary sex with his seventeen-year-old classmate. For purposes of this statute, oral sex is sex. See N.D.C.C. § 25-03.3-01(6) (defining “sexual act”). An individual can be a sexual predator for “[ejngaging in or attempting to engage in sexual contact” that an individual “knows or should have known” is “offensive to the victim.” N.D.C.C. § 25 — 03.3—01(9)(b)(l). The astonishing breadth of “sexually predatory conduct” is one reason that civil commitment of a criminal like G.R.H. could occur.

[¶ 39] Besides a showing of “sexually predatory conduct,” the State has the burden to show by clear and convincing evidence that an individual has a “congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.” N.D.C.C. § 25-03.3-01(8). The statute does not define what sort of disorders would fit this definition, although mental retardation is explicitly excluded. Id. The statute requires “experts chosen by the executive director” to evaluate whether the individual meets the requirements of the statute. N.D.C.C. § 25-03.3-12.

[¶ 40] In this case, three psychologists evaluated G.R.H. No psychologist reported that G.R.H. was a sexual deviant, or that he suffered from any type of paraphilia such as pedophilia or hebephilia (sexual attraction to humans who are pubescent). The only psychological disorder G.R.H. was diagnosed with was antisocial personality disorder. Antisocial personality disorder is not an unusual diagnosis for someone who has been in prison. Approximately 40%-60% of the male prison population are diagnosable with antisocial personality disorder. See Kansas v. Crane, 534 U.S. 407, 412, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (citing Moran, The Epidemiology of Antisocial Personality Disorder, 34 Social Psychiatry & Psychiatric Epidemiology 231, 234 (1999)). Dr. Ether-ington testified during the evidentiary hearing in this case that the number was actually higher. She testified that approximately 60%-75% of incarcerated individuals suffered from antisocial personality disorder.

[¶ 41] According to the DSM-IV manual, the authoritative text on psychological disorders, antisocial personality disorder requires a showing of a “pervasive pattern of disregard for and violation of the rights of others occurring since age 15.” See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 706 (rev. 4th ed. 2000) (DSM-IV) (detailing antisocial personality disorder). Sexual devianey is not a necessary component to a diagnosis of antisocial personality disorder. Three or more of the following seven factors must be met for this diagnosis to be applicable.

1. failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest
2. deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure
3. impulsivity or failure to plan ahead
4. irritability and aggressiveness, as indicated by repeated physical fights or assaults
5. reckless disregard for safety of self or others
6. consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations
7. lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another

Id.

[¶ 42] The disorder has a “chronic course but may become less evident or remit as the individual grows older.” Id. at 704. All three psychologists concluded G.R.H. suffered from antisocial personality disorder. Dr. Joseph Belanger’s written report concluded that G.R.H. met five out of the seven criteria necessary for a diagnosis of antisocial personality disorder. G.R.H. failed to conform to social norms, was deceitful, impulsive, irritable, and lacked remorse. According to Dr. Belan-ger’s report, G.R.H. did not represent a reckless disregard for the safety of others, nor was he conclusively irresponsible. Not one of the three psychologists diagnosed G.R.H. with a psychological disorder that is focused on sexual predatory conduct.

[¶ 43] It is questionable whether a diagnosis of antisocial personality disorder alone should meet our statutory requirements for commitment of a sexually dangerous individual. Assuming it does meet our statutory definition, the evidence submitted to the district court was insufficient to show G.R.H. was “likely to engage in further acts of sexually predatory conduct” because of the psychological disorder. N.D.C.C. § 25-03.3-01(8). The psychologists’ reports and testimony were equivocal about G.R.H.’s potential for committing another sex crime.

[¶ 44] Four psychological tests were used to determine whether G.R.H. would have a likelihood of recidivism. Only one of the four tests indicated a recidivism rate that could logically be denoted as “likely” to re-offend. Within a five-year period, the RRASOR showed a 14% chance of recidivism, the Static-99 showed a 39% chance of recidivism, and within a six-year period, the MnSOST-R showed a 78% chance of recidivism. A PCL-R test was also done on G.R.H. Dr. Etherington reported that G.R.H.’s score on the PCL-R test was “not clearly indicative” of a finding that G.R.H. was high risk for sexual recidivism. Her report stated that “such a finding would seem to require, based on existing research, the combination of this PCL-R score range with some type of relevant deviant sexual interest. Such a condition was not diagnosed for [G.R.H.].”

[¶ 45] The testimony presented at trial was also equivocal about G.R.H.’s potential to engage in further acts of sexually predatory conduct. Dr. Robert Gulkin, G.R.H.’s independent expert, testified that G.R.H.’s conduct was opportunistic and impulsive rather than predatory:

Q. [I]n your mind, the idea of what’s predatory conduct versus opportunistic conduct, how would you characterize Mr. H.’s previous offenses?
A. In my report, I had made reference to the fact that his two offenses did not present in the predatory manner of some sex offenders, that it— they — it was more opportunistic, that he did in fact take advantage of a situation and the individuals, used some poor judgment. I think this is the impulsivity. [T]his is some of the characterological issues of the Personality Disorder, but I did not see anything suggestive of a para-philia or an identifiable sexual pathology, and he as such presented qualitatively differently. Impulsive, poor judgment, involving some sexual activity, but not a predatory sexual act.

[¶ 46] Dr. Gulkin also testified that there was only a hypothetical probability or a potentiality that G.R.H. would repeat his behavior.

Q. Okay. In regard I guess to the other diagnosis, the Antisocial Personality Disorder, you did diagnose Mr. H. from suffering from that diagnosis; correct?
A. Yes, I did.
Q. Okay. And you believe that as a result of that diagnosis that that might potentially lead to — potentially lead to sexual misbehavior in the future, that — or would that be a fair statement?
A. Potentially, yes, it may.
Q. Potentially it may, okay. How likely it would lead to that, you don’t know quantitatively; correct?
A. That’s correct.

[¶ 47] Based on the evidence and testimony presented at the evidentiary hearing, the court’s finding that G.R.H. was likely to engage in further acts of sexually predatory conduct because of a diagnosis of antisocial personality disorder was clearly erroneous. While there may have been a showing that G.R.H. potentially or possibly could re-offend, there was not a showing by clear and convincing evidence that G.R.H. was “likely” to engage in sexually predatory conduct. Therefore, the court’s finding was clearly erroneous.

III

[¶ 48] While our statute requires an individual to be “likely to engage in further acts of sexually predatory conduct” because of a psychological disorder, the constitution requires something more. The United States Supreme Court has recognized that the inability to control behavior is a necessary constitutional requirement for civil commitment of sexual predators. In order for a civil commitment to be constitutional, there must be a finding of a “serious difficulty in controlling behavior.” Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002); see also Foucha v. Louisiana, 504 U.S. 71, 82-83, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (refusing to allow civil commitment that would permit the indefinite confinement “of any convicted criminal” after completion of a prison term). As the Crane court stated:

the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.

Crane, 534 U.S. at 413, 122 S.Ct. 867.

[¶ 49] The court recognized the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment “from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” Crane, 534 U.S. at 412, 122 S.Ct. 867 (citing Kansas v. Hendricks, 521 U.S. 346, 360, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). This separation was constitutionally necessary, otherwise “civil commitment” could quickly become a “ ‘mechanism for retribution or general deterrence’ — functions properly those of criminal law, not civil commitment.” Crane, 534 U.S. at 412, 122 S.Ct. 867 (citing Hendricks, 521 U.S. at 372-73, 117 S.Ct. 2072 (Kennedy, J., concurring)).

[¶ 50] Other jurisdictions interpreting Crane have concluded antisocial behavior is insufficient to civilly commit an individual. According to one jurisdiction, “under United States Supreme Court case law, a state cannot constitutionally confine a person based solely on antisocial behavior. In order to civilly commit an individual, there must be at least clear and convincing evidence that the individual is ‘mentally ill’ and ‘dangerous.’ ” In re Doe, 102 Hawai’i 528, 78 P.3d 341, 361-62 (App.2003).

[¶ 51] The record does not support a finding that G.R.H. is a dangerous individual. Although a finding of dangerousness is not alone a sufficient predicate for a civil commitment, Foucha v. Louisiana, 504 U.S. 71, 77, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), dangerousness is a necessary predicate to a civil commitment. The necessary evidence must show the individual is a danger to public health and safety because the person is likely to engage in sexually violent conduct in the future if not incapacitated. Hendricks, 521 U.S. at 357, 117 S.Ct. 2072.

[¶ 52] The district court erroneously found G.R.H. has a serious difficulty controlling his behavior. This finding was erroneous because there was substantial evidence G.R.H. could control his behavior. A diagnosis of antisocial personality disorder does not preclude such a legal determination that a person can control his behavior.

[¶ 53] Dr. Gulkin recognized a diagnosis of antisocial personality disorder does not mean an individual has a serious lack of ability to control behavior.

The general understanding is that antisocial individuals have the controls. In fact the literature, both research and general clinical literature, is full of observational and other studies that show that antisocial individuals are actively making choices and do control their behavior in different environments doing it differentially based upon the situation.
So it’s not the lack of capacity. It’s how antisocial individuals view situations and how they make the decisions about proceeding.

[¶ 54] At the initial commitment hearing on September 23, 2004, Dr. Rosalie Etherington testified G.R.H. could control his behavior.

Q. Okay. Would it be fair to say that Antisocial Personality Disorder then are people who can control their actions, but just have a proclivity not to, that they just don’t for whatever reason. They can control their actions, but they don’t.
A. There’s been lots of arguments made about volitional control and does it — you know, does it exist with an antisocial personality. I would say yes, they do have potential to control their behavior. Absolutely. They choose not to or the drive not to, you know, based on the disorder itself is quite strong, but nevertheless, yes. Under controlled circumstances, you know, with enough wherewithal or desire to do so, I do believe they can control themselves.

[¶ 55] Dr. Gulkin concurred in Dr. Etherington’s diagnosis.

Q. Dr. Gulkin, would you agree that G.[R.H.] does not have a special and serious lack of ability to control his behavior which would be different from a typical career recidivist?
A. That is correct.

[¶ 56] However, at the second eviden-tiary hearing, Dr. Etherington testified G.R.H. “suffers from antisocial personality disorder and that disorder in and of itself impairs his volition.” Equivocal testimony about G.R.H.’s ability to control behavior does not meet the clear and convincing evidentiary burden under our statute or the constitutional requirement of “serious difficulty in controlling behavior” announced in Crane, 534 U.S. at 413, 122 S.Ct. 867.

[¶ 57] G.R.H.’s ability to control his behavior is further demonstrated by his behavior in prison. Dr. Belanger testified G.R.H.’s conduct had improved while in prison and he “has not had an aggressive physical fight to the best of our knowledge since 1996. He’s learning I think to respond to the cues of what will get him into trouble with administration a little bit more quickly.” Dr. Gulkin testified “it’s my impression that the aggressive and impulsivity that had marked his earlier behavior had diminished, that through aging, education, treatment, it appears that he has been able to moderate those behaviors and demonstrate better control.” Dr. Etherington testified G.R.H. “became more compliant with programming. He started in some [college] classes. He completed classes. He just overall did much better.”

[¶ 58] G.R.H.’s recent behavior at the State Hospital has been described as “exemplary.” John Kildahl, an advanced clinical specialist who spends approximately five hours per week treating G.R.H., described G.R.H. as a model patient.

Q. Okay. During the time that you’ve been working with Mr. H., tell me a little bit how his behavior has been on the ward. Can you just—
A. I think exemplary.
Q. Okay. When you say exemplary, why would you say that?
A. Because there have been no altercations—
Q. Okay.
A. With others, with other patients, and/or with staff.
Q. Okay.
A. There have been no — in other words, there have been physical incidents with other patients and/or staff.
Q. Okay. Well, would there be any other reasons why you would characterize his behavior as exemplary?
A. I don’t know if it’s behavior. He helps out — he certainly helps with his groups to help and be insightful, and to give comments to others that he thinks are pertinent to themselves, to himself.
Q. Um-hmm. And I guess in regard to his relationship with other members of the group, is he generally liked by other members of the group, and do they generally have a fairly good working relationship?
A. I think he’s liked by some, and I think he’s respected by all.
Q. Okay.
A. I don’t think everyone likes him.
Q. Okay.
A. I think some are envious.
Q. Okay. In the time that you’ve been working with him, has he failed to conform with any of the rules or regulations on the ward to any significant degree?
A. No.
Q. Has he been in any way deceitful with you or other members of the treatment staff?
A. Not to my knowledge, no.
Q. Okay. Has he been impulsively, basically in any way, you know, unpredictable, odd behavior, anything along those lines?
A. No.
Q. Okay. Has he been irrational or aggressive?
A. On one occasion.
Q. Okay. Tell us about the one occasion where he was — I believe there was an occasion where he was what, aggressive?
A. I don’t [k]now that that’s — that’s a difficult word, it’s a difficult situation, what went on, I think. He was in the situation that I would refer to within one of the core groups that I was leading, and it resulted — it gave him — between he and another patient, basically he confronted another patient on an issue.
Q. Okay.
A. And the other patient grew heated, and there were some threats tossed, and they were returned — it was a heated pretty much face to face argument.
Q. Okay.
A. Of which both parties were at fault.
Q. Okay. How about irresponsible? Has he been responsible in regard to his various obligations? Has he been in any way consistently, or otherwise irresponsible?
A. He’s been extremely responsible to his treatment.
Q. Okay. And I guess in his treatment, has he shown any remorse for his actions, his previous actions?
A. Yes, he has.

[¶ 59] G.R.H. can control his behavior. This is demonstrated by his conduct at the State Penitentiary and the State Hospital. There is nothing in the record that would separate G.R.H. from the typical criminal recidivist. As such, he has been properly dealt with in criminal proceedings. Crane, 534 U.S. at 412, 122 S.Ct. 867. He has served his sentence and has already gone through two sex offender treatment programs while at the State Penitentiary. Under an evidentiary standard that requires clear and convincing evidence, the record does not support the court’s finding that G.R.H. had a serious difficulty in controlling his behavior. The finding was clearly erroneous.

IV

[¶ 60] The disposition of the trial court, and the majority’s interpretation of the statute, places the judicial discretion to determine who should be civilly committed into the hands of a few psychologists, merely applying the DSM-IV manual. This interpretation inevitably leads to a result that usurps the role that is at the cornerstone of the judiciary.

[¶ 61] As the Crane court noted, the “science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law.” Crane, 534 U.S. at 413-14, 122 S.Ct. 867 (citing Ake v. Oklahoma, 470 U.S. 68, 81, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (psychiatry not “an exact science”); DSM-IV xxx (“concept of mental disorder ... lacks a consistent operational definition”); id., at xxxii-xxxiii (noting the “imperfect fit between the questions of ultimate concern to the law and the information contained in, [the DSM’s] clinical diagnosis”)).

[¶ 62] In this case, we are aided by an amicus brief from the North Dakota Attorney General’s Office. A recent psychological report on the effects of Kansas v. Hendricks and Kansas v. Crane on mental health professional’s diagnostic techniques was included in an addendum to the brief. See Cynthia C. Mercado, Robert F. Schopp, and Brian H. Bornstein, Evaluating Sex Offenders Under Sexually Violent Predator Laws: How Might Mental Health Professionals Conceptualize the Notion of Volitional Impairment ? 10 Aggression and Violent Behavior 289-309 (2005). The report emphasizes that a clinical diagnosis is not synonymous with meeting a legal standard for civil commitment. Id. at 295. As the expert researchers report:

The use of diagnostic labels for legal purposes has been criticized on the grounds that they are descriptively imprecise. Although potentially helpful in determining whether a pattern of behavior meets a legal threshold, diagnostic labels should not be considered disposi-tive of a legal issue.

Id. (citations omitted).

[¶ 63] Clinicians have a responsibility to limit their testimony to areas of their competencies. Id. at 296. This is not to say there is no role for mental health professionals. As the psychologists’ report notes, “there is utility to clinical expertise when it provides [] description of clinicians’ unique understanding of human behavior.” Id. But ultimately the court is to make the “normative judgment as to whether such impairment ... renders the individual eligible (or ineligible) for a particular legal status.” Id.

[¶ 64] The psychologists reported that G.R.H. suffers from a personality disorder and that disorder impairs his volition. The court concluded that because the psychologists testified that G.R.H. met the legal standard, the court “really has no alternative but to commit him.” If we are to accept this interpretation, psychologists will have usurped the judiciary’s function. The court must decide whether it has received clear and convincing evidence that G.R.H. has a disorder which makes him a danger to society as a sexually dangerous individual. While clinical expertise is useful in these cases, the court must always maintain its normative role in passing judgment.

V

[¶ 65] Our civil commitment treatment program is appropriate and useful for sexually dangerous individuals who have committed sexually predatory conduct and who have a serious inability to control behavior. But civil commitment requires a clear and convincing showing that the statutory and constitutional requirements are met. It is a heavy burden not met in this case. While our statute may use the phrase “likely to engage in,” our judges must read that language in light of the constitutional requirements announced in Crane. If G.R.H. is a candidate for civil commitment, our statute is constitutionally infirm. Because I am firmly convinced the court’s decision is not supported by clear and convincing evidence, I would reverse. I, therefore, respectfully dissent.

[¶ 66] GERALD W. VANDE WALLE, . C.J., and CAROL RONNING KAPSNER, J., concur.

      . The 2005 Legislative assembly enacted N.D.C.C. § 12.1-20-01(3), which limits criminality based on age for most sex crimes: "When criminality depends on the victim being a minor, the actor is guilty of an offense only if the actor is at least four years older than the minor.” The age limitation was not included with the corresponding civil commitment statute.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2006 SD 20
    Dan IRVINE, Appellant, v. CITY OF SIOUX FALLS, Respondent and Appellee.
    No. 23648.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 9, 2006.
    Decided March 8, 2006.

      Thomas K. Wilka of Hagen, Wilka & Archer, Sioux Falls, SD, for appellant.
    Allen J. Eide, Chief Assistant City Attorney, Sioux Falls, SD, for respondent and appellee.
   MEIERHENRY, Justice.

[¶ 1.] Daniel Irvine (Irvine), an employee of the Sioux Falls Fire Rescue (SFFR), was demoted and suspended for insubordination. The disciplinary action was upheld by the Sioux Falls Civil Service Board (Board) and the circuit court. We affirm.

FACTS

[¶ 2.] Irvine, a 27-year veteran of the SFFR, had worked as a Fire Captain since early 1995. In late 2001, Irvine went on light duty status because of a non-work related injury. In late July 2002, Irvine returned to full duty status and resumed his position as a Fire Captain. At the end of September 2002, Division Chief Corky Miles (Miles) sent an e-mail to several employees, including Irvine, to notify them of a mandatory training meeting on October 1, 2002. Irvine failed to attend the meeting. He claimed he did not receive the e-mail notification regarding the meeting. Upon investigation, SFFR determined that Irvine purposely configured his computer’s e-mail program to divert .all messages from Miles from the inbox into a separate file in order to ignore them. SFFR found that Irvine’s actions constituted insubordination and, as a result, suspended and demoted him. Irvine appealed the disciplinary action of SFFR to the Board. The Board conducted a review hearing. The Board entered findings of fact and conclusions of law affirming the disciplinary action. Irvine appeals and raises the following issue:

ISSUE

[¶ 3.] Whether the Board erred when it determined that the City proved by conclusive evidence that Irvine’s demotion was for good cause.

STANDARD OF REVIEW

[¶ 4.] Our review of the Board’s decision is governed by SDCL 1-26-36. SDCL 9-14-14; see also Schlumbohm v. City of Sioux Falls, 2001 SD 74, ¶ 7, 630 N.W.2d 93, 95. We must “give great weight to the findings made and inferences drawn by [the board] on questions of fact.” SDCL 1-26-36. In reference to the civil service board’s factual findings, we have said that “we do not ‘judge witness credibility, a matter left to those presiding first hand.’ ” Schlumbohm, 2001 SD 74, ¶ 12, 630 N.W.2d at 96 (citing Green v. City of Sioux Falls, 2000 SD 33, ¶ 16, 607 N.W.2d 43, 47). We give no deference to the legal conclusions rendered by either the board or the trial court. City of Frederick v. Schlosser, 2003 SD 145, ¶ 7, 673 N.W.2d 283, 285. Whether the facts establish just cause for discipline is a matter of law that is fully reviewable. Schlumbohm, 2001 SD 74, ¶ 12, 630 N.W.2d at 96 (citing Green, 2000 SD 33, ¶ 21, 607 N.W.2d at 48). The interpretation of an ordinance also presents a question of law that we review de novo. City of Marion v. Rapp, 2002 SD 146, ¶ 5, 655 N.W.2d 88, 90. Pursuant to statute, a civil service board’s decision can only be reversed if it is:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in light of the entire evidence in the record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

SDCL 1-26-36.

DECISION

[¶ 5.] Irvine contends that the City failed to produce conclusive evidence that his suspension and demotion by SFFR was made in good faith for cause. The Sioux Falls City Ordinances govern the City’s personnel decisions. Ordinance 30-45 provides that an employee may be suspended, discharged, or demoted for just cause. Ordinance 30-46 states that just cause exists when an employee “[h]as been guilty of acts constituting insubordination or of any conduct unbecoming an officer or employee of the city.”

[¶ 6.] According to Ordinance 30-48, after an employee has been removed, discharged, suspended, or demoted, the employee may appeal the action and request a hearing before the Board. The Board investigates the action to determine if it should be affirmed. The Board’s authority to review the action is set forth by Ordinance 30-50 as follows:

After an investigation into the discharge, removal, suspension or reduction of a person in the civil service, the civil service board may, if in its estimation the evidence is conclusive, affirm the removal, or if it shall find that the removal, suspension, or demotion was made for race, color, creed, sex, ancestry, national origin, disability or political or religious reasons or was not made in good faith for cause, shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which such person was removed, suspended, demoted, or discharged. Such reinstatement may be retroactive with pay from the time of such removal, suspension demotion, or discharge. The board upon such investigation, in lieu of affirming the removal, suspension, demotion, or discharge, may modify the order of removal, suspension, demotion or discharge by directing a suspension without pay for a given period and subsequent restoration of duty or demotion in classification, grade, or pay. The findings of the board shall be certified in writing to the director, and shall be forthwith enforced by such officer.

(Emphasis added).

[¶ 7.] In order to review the Board’s decision, we must first determine the quantum of proof required by the ordinance. The ordinance requires the Board to investigate the action and allows the Board to affirm the action “if in its estimation the evidence is conclusive.” Unfortunately, the ordinance does not define that phrase. Irvine argues that “conclusive evidence” is greater than “preponderance of the evidence” and equivalent to “beyond a reasonable doubt.” Citing to Black’s Law Dictionary, Irvine contends that conclusive evidence is evidence “so strong and convincing as to overbear all proof to the contrary and establish the proposition beyond any reasonable doubt.”

[¶ 8.] When a term is not defined in an ordinance, we interpret the term according to its usual and ordinary meaning. In re Frawley Planned Unit Dev., 2002 SD 2, ¶ 6, 638 N.W.2d 552, 554. The usual and ordinary meaning of “conclusive” is “serving to put an end to doubt, question, or uncertainty; decisive.” The American Heritage Dictionary 305 (2d college ed. 1982). When we have referred to the term “conclusive evidence,” we have usually done so in the context of a presumption of evidence. For example, when analyzing the constitutionality of legislation, we employ both “the ‘enrolled bill’ rule which holds the enrolled bill as conclusive evidence of its proper enactment ... [and] the ‘modified enrolled bill’ rule which holds an enrolled bill as conclusive evidence of proper enactment except as to constitutionally mandated journal entries which are specifically questioned.” Ind. Cmty. Bankers Ass’n v. State, 346 N.W.2d 737, 742-43 (S.D.1984) (citations omitted) (emphasis added). Statutes use the phrase “conclusive evidence” in the same manner. See, e.g., SDCL 7-3-8 (providing that when new counties are established, a report of assets and liabilities filed by the auditor-general “shall be conclusive evidence of the amounts due from one county to the other or others”); SDCL 10-11-16 (stating that a postmark shall be conclusive evidence regarding the timeliness of an appeal of assessment decisions); SDCL 16-19-58 (establishing that a certificate or record of a conviction is conclusive evidence of the commission of a crime for professional purposes of attorney discipline).

[¶ 9.] While “conclusive evidence” has been used in the context of evidentiary presumptions, the term has not been defined as a standard of proof. The analogous phrase, “clear and convincing evidence,” has been defined as “ ‘more than a mere preponderance but not beyond a reasonable doubt.’ ” In re Setliff, 2002 SD 58, ¶ 13, 645 N.W.2d 601, 605 (citations omitted). Evidence is “clear and convincing” if it is “ ‘so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’ ” In re Zar, 434 N.W.2d 598, 602 n. 7 (citations omitted); see also SD Pattern Jury Instruction (Criminal) 2-5-4. On the other hand,

A reasonable doubt is a doubt based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

State v. Webster, 2001 SD 141, ¶ 9, 637 N.W.2d 392, 395; see also SD Pattern Jury Instruction (Criminal) 1-6-3.

[¶ 10.] Generally, the burden of proof for administrative hearings is preponderance of the evidence. Zar, 434 N.W.2d at 602. In license revocation proceedings, however, we have required the higher standard of clear and convincing evidence. See, e.g., Setliff, 2002 SD 58, ¶ 13, 645 N.W.2d at 605; Zar, 434 N.W.2d at 602. In this case, the City enacted an even higher standard for itself by requiring “evidence that is conclusive” — that is, evidence that “serv[es] to put an end to doubt, question, or uncertainty” or that is “decisive.” In light of the ordinary meaning, we agree that “conclusive evidence” requires a higher quantum of proof than “preponderance of the evidence” or even “clear and convincing evidence.” The ordinance requires proof that is closer to proof beyond a reasonable doubt.

[¶ 11.] In this case, the Board recognized and applied the appropriate burden of proof. It specially noted that “[t]he City of Sioux Falls has the burden of proving by conclusive evidence that the suspension and demotion of Daniel Irvine was made in good faith and for just cause.” (emphasis added). The board then concluded that “[t]he City [had] met its burden.”

[¶ 12.] Although the City’s burden of proof requires the Board to find conclusive evidence of cause, our standard of review of the Board’s decision is governed by SDCL 1-26-36. Consequently, we review the Board’s findings of fact under a clearly erroneous standard. Although Irvine argues that some of the evidence refutes the Board’s findings, he is unable to show that any of those findings are clearly erroneous. A finding is clearly erroneous when we are left with a definite and firm conviction that a mistake was made. Deuter v. S.D. Hwy. Patrol, 330 N.W.2d 533, 535-36 (S.D.1983). The Board made thirty-one detailed findings of fact. Irvine takes issue with several of the Board’s findings.

[¶ 13.] One of the Board’s findings refers to Irvine’s dishonesty in regard to the e-mail notification. Irvine claims his superiors were wrong in not believing him. Irvine contends he did not create the rule on his computer which diverted Miles’ e-mails to an unread folder. Furthermore, if he did create the rule, Irvine argues that he did so inadvertently due to his incompetence with computers. At the hearing, he provided his version of how he may have accidentally created computer procedures that resulted in the e-mail diversion. He explained that a series of “misclicks” in his attempt to “create,” “insert,” and “organize” his desktop folders and documents may have caused the problem.

[¶ 14.] Other evidence in the record undercut Irvine’s explanation. Irvine may very well have been a less than competent e-mail user in February 2002. Nevertheless, shortly after he attended the March 2002 training class, the e-mails that he received from his supervisor Miles ended up — unread—in a folder in his inbox. At that training, the instructor covered the use of certain e-mail rules and specifically joked that an e-mail user could create a rule which would send e-mails from a boss to the deleted items folder. Beginning three days after the training class, Miles’ e-mails to Irvine were diverted from the inbox to a folder in Irvine’s e-mail program. None of the diverted e-mails were ever opened or read. All of Miles’ e-mails to Irvine continued to be diverted up to the time Irvine was suspended. The only evidence indicating that Irvine was not intentionally avoiding Miles’ e-mails is Irvine’s own testimony. The import of that testimony, however, depends on Irvine’s credibility, a determination we leave to the Board. Given its findings, the Board apparently rejected Irvine’s explanation.

[¶ 15.] Irvine also challenges the Board’s determination that he had an attitude problem with authority. The evidence, however, established that Irvine exhibited long and continuous disrespect of SFFR’s management personnel. Year after year, Irvine’s evaluations depicted a man who was a proficient firefighter, but an unmanageable employee. Irvine’s supervisors repeatedly encouraged him to “be more cooperative, courteous, and non-disruptive to the organization.” One evaluation stated that Irvine’s “unwillingness to handle interaction with chief officers in a tactful and respectful way [was] unacceptable behavior.”

[¶ 16.] The Board specifically found that Irvine was “openly hostile” to Miles after Miles was promoted. Rather than calling Miles by his preferred name, “Corky,” Irvine referred to Miles as “Sam,” an acronym for “Suck Ass Miles.” According to Miles, he and Irvine “got along” until Miles was promoted. A similar change in Irvine’s attitude was noticed by Fire Chief Donn Hill (Hill). Hill characterized his relationship with Irvine as good until Hill became part of management, at which time the relationship immediately became negative.

[¶ 17.] Thus, the evidence established that Irvine had a history of disrespecting management, particularly Miles, that Irvine’s e-mail program was operating a rule which diverted all e-mails from Miles to a separate folder, that Miles’ e-mails were automatically diverted without being read, and that just prior to the date of the first diverted e-mail, Irvine attended a computer training program which taught the participants how to use rules and during which the instructor joked about avoiding the boss’s e-mails. The evidence presented to the Board was not without conflict, but even with the City’s “conclusive evidence” burden of proof, we cannot say that the factual findings of the Board were clearly erroneous in light of all the evidence. The facts established by conclusive evidence that just cause existed for Irvine’s suspension and demotion.

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . Under South Dakota law, municipalities may adopt ordinances which establish a civil service system for municipal employees and provide for a civil service board which reviews personnel decisions. SDCL 9-14-14. The City of Sioux Falls has established such a system pursuant to that authority.


author: KONENKAMP, Justice.

text:
    2006 SD 21
    Roger VETTER, Plaintiff and Appellee, v. CAM WAL ELECTRIC COOPERATIVE, INC., Defendant and Appellant.
    No. 23684.
    Supreme Court of South Dakota.
    Argued Jan. 10, 2006.
    Decided March 08, 2006.

      Thomas W. Clayton, Clayton Law Office, Sioux Falls,. SD, for plaintiff and appellee.
    Richard D. Casey, Nicole Nachtigal Emerson of Lynn, Jackson, Shultz & Lebrun, P.C., Sioux Falls, SD, for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Must an employer establish that an employee actually committed misconduct in order to demonstrate good cause to fire the employee? In this wrongful termination suit, the employer requested a jury instruction that would have limited the jury’s role in reviewing the factual basis for the employer’s decision to fire its employee. With this proposed instruction, the jury would not decide whether the employee had in fact committed an infraction justifying termination. Rather, the jury would decide only whether the employer, acting in good faith after an appropriate investigation, had reasonable grounds for believing that the employee had committed the infraction. The circuit court refused the instruction, and the jury returned a verdict against the employer. On the employer’s appeal, we conclude that because this proposed instruction would have contravened the employee termination provisions of the collective bargaining agreement, the court did not err in refusing to give it. Therefore, we affirm.

Background

[¶ 2.] On September 9, 2002, after almost thirty years as a lineman for Cam Wal Electric Cooperative, Inc., Roger Vet-ter was fired for violating Cam Wal’s policy against drinking alcohol on company property. Vetter was aware of this policy, but asserted that during all the years he worked for the company, except for one brief period, “employees and management consistently drank beer and alcoholic beverages together on the premises.”

[¶ 3.] The circumstances leading to Vetter’s termination began on Friday, July 19, 2002, near the end of the workday. Vetter and another employee, Shawn Schmidt, had just returned after working in the field. Vetter’s time sheet showed that he had worked ten hours that day. At that point, Vetter thought that “[w]ith no more work assignments, and with the truck put away and time cards filled in, their day’s work was now over.” Vetter and Schmidt decided to look up some information on the company computers. On their way, they grabbed two beers each from a refrigerator in the Cam Wal social room.

[¶ 4.] When the general manager, Jeff Bonn, observed Vetter and Schmidt with the beers, he said nothing about it, but engaged them in general conversation. The next day, however, Bonn checked both employees’ time records and the browser histories from the computers they used to see if Vetter and Schmidt were “off the clock” when they were drinking at work. Because the computer history revealed that a website had been visited at 5:05 p.m. and the time cards indicated 5:30 p.m. as the end of Vetter and Schmidt’s day, Bonn believed that they violated the company’s no drinking policy.

[¶ 5.] Bonn contacted Cam Wal’s corporate attorney. After conferring with Bonn, the attorney interviewed Vetter and Schmidt on July 23, 2002. Then, one week later, Vetter and Schmidt each received written notice that they had violated Article IX, section l.c.(7) of the Collective Bargaining Agreement between Cam Wal and Local No. 426 of the Internal Brotherhood of Electrical Workers, AFL-CIO. That provision forbade the “[u]se of intoxicating liquor on the job or in/on Cooperative property.” On September 9, 2002, Vetter and Schmidt were fired. Along with his job, Vetter lost his health insurance, life insurance, vacation pay, holiday pay, retirement benefits, and savings program. In later explaining its decision, Cam Wal said that it “had reasonable grounds for believing [that] misconduct occurred and otherwise acted fairly, honestly and in good faith[.]”

[¶ 6.] Vetter brought suit against Cam Wal, alleging wrongful termination in violation of the terms of the collective bargaining agreement. He claimed that Cam Wal discharged him “arbitrarily” and “unfairly,” in violation of Article IV, section 2 of the agreement. He also averred that the company waived its right to enforce the no drinking policy in the contract when it knowingly allowed employees and management to drink on the premises. He contended that Cam Wal should be es-topped from exercising its right under the agreement to fire him because of the company’s own conduct in allowing violations to occur in the past without consequence.

[¶ 7.] According to Vetter, “[d]rinking alcohol on Cam Wal premises was a commonplace occurrence.” In Vetter’s recollection after thirty years at Cam Wal, the only period during which drinking on the premises was forbidden was when Brad Scott was Cam Wal’s general manager. During his tenure, Scott announced that drinking at Cam Wal would no longer be allowed. After Scott left, however, Vetter recalled that the drinking started again. This included the time Bonn was the general manager. Bonn conceded that alcohol had been consumed on the company premises in the past, but he said, “It was always after hours. It was rare occasions.”

[¶ 8.] The beer Vetter and Schmidt obtained came from the refrigerator in the Cam Wal social room and was purchased by Cam Wal for a company picnic the previous summer. Cam Wal allowed the beer to be stored there, even though there was a company policy prohibiting alcohol in Cam Wal’s social room. Vetter testified that Bonn knew the beer was stored there. He also said that the linemen would “walk up to the social room, grab a beer or more, and bring it back to the linemen’s room to drink.”

[¶ 9.] At trial, Cam Wal requested a jury instruction on what it believed should be the jury’s limited fact finding role in wrongful termination cases. But the court declined to instruct the jury on this theory. Under the court’s instructions, Vetter had the burden of proving that an agreement existed, that it was breached, and that he was damaged. He also had the burden to prove waiver and estoppel. At the close of the case, the jury returned a verdict for Vetter for $290,000 plus interest. On appeal, Cam Wal asserts that the jury instructions were insufficient, incorrect, and prejudicial.

Standard of Review

[¶ 10.] Before we begin our analysis, we take this opportunity to clarify our standard of review on jury instructions. A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court’s decision to grant or deny a particular instruction under the abuse of discretion standard. See Luke v. Deal, 2005 SD 6, ¶ 11, 692 N.W.2d 165, 168; Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, ¶ 5, 641 N.W.2d 112, 116. However, no court has discretion to give incorrect, misleading, conflicting, or confusing instructions: to do so constitutes reversible error if it is shown not only that the instructions were erroneous, but also that they were prejudicial. First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448 (citations omitted). Erroneous instructions are prejudicial under SDCL 15-6-61 when in all probability they produced some effect upon the verdict and were harmful to the substantial rights of a party. Accordingly, when the question is whether a jury was properly instructed overall, that issue becomes a question of law reviewable de novo. Under this de novo standard, “we construe jury instructions as a whole to learn if they provided a full and correct statement of the law.” Id, 2004 SD 92, ¶ 40, 686 N.W.2d at 448 (quoting State v. Frazier, 2001 SD 19, ¶ 35, 622 N.W.2d 246, 259 (citations omitted)).

Analysis and Decision

[¶ 11.] Cam Wal believes that employers must be afforded discretion in making decisions to discharge employees for cause, without the threat of juries second guessing their business judgments. Thus, Cam Wal asks us to adopt the good-faith standard created by the California Supreme Court in Cotran v. Rollins, Hudig Hall Int’l, Inc., 17 Cal.4th 93, 69 Cal.Rptr.2d 900, 948 P.2d 412 (1998). Under this standard, a jury in a wrongful termination case determines whether the employer, acting in good faith and following a reasonable investigation, had sufficient grounds for believing that cause existed to justify the employee’s termination. See id. at 423. But the jury would not decide whether the employee actually committed the infraction giving rise to the termination. Absent this standard, Cam Wal believes that the jury here was effectively placed in the position of being a “super-personnel department,” allowing the jurors to decide what the appropriate discipline should have been based on their own interpretation of the facts.

[¶ 12.] In Cotran, a case of an implied employment agreement not to terminate except for good cause, the employee was fired after his employer investigated and substantiated allegations that the employee had sexually harassed two fellow employees. 948 P.2d at 415. Cotran denied that he committed the sexual harassment and brought suit against his employer for wrongful termination. His employment was not controlled by an express agreement, but the lower court interpreted a letter sent from the employer to Cotran to hold that he could not be terminated unless good or just cause existed. Id. at 414 n. 1. Then, the court instructed the jury that it should decide whether Cotran in fact committed the sexual harassment. In a special verdict, the jury answered “no” to the question whether Cotran “engaged in any of the behavior on which [the employer] based its decision to terminate [Co-tran’s] employment.”

[¶ 13.] On appeal, the employer argued that it should not be “required to prove the acts of sexual harassment occurred.” It asserted that it should only be required to prove that it had a good-faith belief that the sexual harassment occurred after conducting a reasonable investigation. The California Supreme Court agreed. It reasoned that juries should not have unfettered discretion when reviewing an employer’s factual conclusions to support a decision to terminate. The court found that this particular employer, while it had impliedly agreed not to discharge Cotran except for cause, did not otherwise relinquish its right to determine whether sufficient facts existed to constitute cause.

[¶ 14.] Because the employment relationship was not further defined by contract or otherwise, the court created a definition of “cause” for juries to apply in “litigation alleging breach of an implied agreement” See id. (emphasis added). Applying the newly adopted definition of “cause,” the court held that the proper inquiry for the jury was not whether the employee in fact committed the discharge-able act, but whether “the factual basis on which the employer concluded a discharge-able act had been committed [was] reached honestly, after an appropriate investigation and for reasons that [were] not arbitrary or pretextual[.]”

[¶ 15.] Cotran’s implied contract standard cannot easily transpose to our case because the written contract here articulates a separate and higher level of consideration. Even when good cause can be found to terminate an employee’s job, the collective bargaining agreement requires that a decision to “reprimand, suspend, discharge or otherwise discipline employees ... shall not be exercised arbitrarily or unfairly to any employee[.]” Moreover, by the Cotran court’s own measure, its standard was expressly limited to cases of an implied employment relationship. See id. at 414 n. 1. Indeed, the court in Co- tran distinguished its case from “[wrongful termination claims founded on an explicit promise that termination will not occur except for just or good cause [that] may call for a different standard, depending on the precise terms of the contract provision.” Id. (emphasis in original). However, Cam Wal cites a North Dakota case to illustrate that any distinction between an implied or express agreement is immaterial here.

[¶ 16.] In Thompson v. Assoc. Potato Growers, Inc., 610 N.W.2d 53 (N.D.2000), a case with an express employment agreement, the North Dakota Supreme Court adopted the Cotran standard. The employment contract empowered the employer to terminate an employee for any material breach of the employment policies or provisions. Thompson was fired after the employer conducted an investigation and concluded that Thompson had been dishonest. Thompson brought a wrongful termination action, arguing that he did not violate any of the employer’s policies or provisions in the agreement and was not dishonest. In a bench trial, the lower court reviewed the employer’s decision de novo. The judge concluded that Thompson was wrongfully terminated because his actions were not dishonest.

[¶ 17.] On appeal, the North Dakota Supreme Court agreed that Thompson’s job could not be terminated except for cause based on the employment agreement. However, the court reached this conclusion by drawing an inference from the employment agreement, not by applying any express contract terms. To reach its decision, the court interpreted a provision that empowered the employer to terminate an employee for, among other reasons, a material violation of the employer’s policies. It construed this provision to mean that an employee could not be terminated except for cause. Then, because the employment relationship was not further defined by contract, the court adopted the good-faith standard articulated in Cotran.

[¶ 18.] In our case, the employment relationship is fully circumscribed by the terms of the employment contract: the collective bargaining agreement specifies all the rights and obligations of both employer and employee. It is under this contract that Vetter brought his claims and Cam Wal asserted its defenses. In Article IV, section 1 of the agreement, Cam Wal is empowered to “reprimand, suspend, discharge or otherwise discipline employees for cause.” Then, in the section entitled, “Discharge and Termination of Employment” (Article IX, section l.c.(7)), the agreement sets forth what conduct amounts to “cause.” Included under cause is “[u]se of intoxicating liquor on the job or in/on Cooperative property.” Nonetheless, section 2 of Article IV also requires that Cam Wal not exercise its rights and powers “arbitrarily or unfairly to any employee.”

[¶ 19.] Cam Wal contended at trial that if it found in good faith based on a reasonable investigation that Vetter was drinking in violation of the employment agreement, then cause existed to justify Vetter’s termination. Thus, Cam Wal requested the following jury instruction:

The Collective Bargaining Agreement between plaintiff and defendant in this case specifies that the customary functions of the management for carrying on of the business and operation are recognized and vested exclusively with the defendant. These customary rights include the right of the defendant, as the employer, to suspend, discharge, or otherwise discipline employees for cause and otherwise generally manage the defendant, direct the defendant’s work force and establish terms and conditions of employment. The contract further specifies that such right and power of the defendant shall not be exercised arbitrarily or unfairly to any employee.
Under the contract, the term “cause” includes the right to discharge the plaintiff for use of intoxicating liquor on the job or in/on defendant’s property.
A discharge for “cause” is one which is not for any arbitrary, capricious, or illegal reason and which is one based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.
In this case, you are not required to determine whether plaintiff in fact used intoxicating liquor on the job or on defendant’s property. Rather, your duty is to determine ivhether at the time the decision to terminate plaintiff’s employment was made, defendant, acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing the plaintiff had done so.
If you find that the defendant had reasonable grounds to believe that sufficient cause existed to justify termination of plaintiff’s employment, then your verdict must be for the defendant.

(Emphasis added.)

[¶ 20.] The court declined to give this proposed instruction and instead gave its instructions 15 and 16.

Instruction 15;

The collective bargaining agreement between plaintiff employee and defendant employer constituted a contract between the parties.
This contract provided that the customary functions for the management and the operation of the business were vested exclusively with the employer and included the right to direct the work force and to establish terms and conditions of employment.
Under the contract, employer had the right to reprimand, suspend, or otherwise discipline employees for “cause.” The term “cause” for which an employee may be discharged included, among other things, the use of intoxicating liquor on the job or in/on Cam Wal property. Instruction 16:
Under the terms of the collective bargaining agreement, the employer’s various management rights and powers, including the right to discharge an employee for cause, could not be exercised arbitrarily or unfairly to any employee.

[¶ 21.] Cam Wal asserts that the court’s instructions were inadequate and prejudicial because they did not inform the jury of its limited role as trier of fact. Cam Wal wants us to join those courts that have adopted the Cotran good-faith standard. Although several of the wrongful termination decisions Cam Wal cites are distinguishable from our case, we acknowledge that a genuine split of authority exists on whether this good-faith standard should be imposed on employment contracts. In some cases, the decisions applying the good-faith standard deal only with employees who denied that “cause” existed to justify termination because they denied the acts alleged to establish cause. Here, whether “cause” existed was only part of Vetter’s claim. Although he denied drinking during working hours on the company premises, he also claimed that Cam Wal acted arbitrarily and unfairly in breach of the collective bargaining agreement when it fired him for conduct previously tolerated without consequence.

[¶ 22.] Cam Wal had agreed to more than good cause. It had also agreed to restrict its right to discharge an employee for good cause by promising not to do so arbitrarily or unfairly. For this reason, the last sentence in Cam Wal’s proposed instruction 16 is especially problematic. It provided: “If you find that the defendant had reasonable grounds to believe that sufficient cause existed to justify termination of plaintiffs employment, then your verdict must be for the defendant.” In our view, this would have dispensed with part of the collective bargaining agreement. Justifiable cause to terminate was not enough because the jury could have concluded that Vetter did drink on the premises during working hours — constituting sufficient cause to justify a termination — but that firing him after almost thirty years of service for an infraction never before punished, drinking beer bought and furnished by the company, was arbitrary or unfair.

[¶ 23.] Whether the good faith standard should apply in South Dakota to some employment termination decisions must await another day. We cannot impose it here when the collective bargaining agreement created a second level of consideration beyond good cause. That is how the contract was written. We are not free to vary or embellish it. See Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶ 8, 676 N.W.2d 390, 393.

[¶ 24.] In the end, we must simply decide whether the instructions given in this case were, as a whole, a full and correct statement of the law. See First Premier Bank, 2004 SD 92, ¶ 41, 686 N.W.2d at 448 (citation omitted). We conclude that the circuit court properly instructed the jury under the controlling terms of the collective bargaining agreement. Adding the standard from the California Supreme Court’s Cotran decision, and especially the last sentence of proposed instruction 16, would have modified that agreement. Therefore, the circuit court did not err when it refused to give the proposed instruction.

[¶ 25.] Affirmed.

[¶ 26.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, and MILLER, Retired Justice, concur.

[¶ 27.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

      . We agree with those federal appellate courts that "are increasingly stating explicitly that review is de novo over the correctness of the instructions overall, while it is the failure to give a particular instruction that is reviewed for abuse of discretion.” See 1 Childress and Davis, Federal Standards of Review § 4.23 (3d ed. 1999).

      . According to the Cotran court, “good cause” can be defined as "fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion, in short, supported by substantial evidence, gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” Id. at 422.

      . In some of the cases Cam Wal relies on, the right to terminate for cause was not further defined, notwithstanding an express or implied employment agreement. In two of the cases, the good-faith standard can only be considered dicta because the employment relationships were considered at will, unlimited by either an express or implied agreement. See Almada v. Allstate Ins. Co., Inc., 153 FSupp2d 1108, 1114 (D.Ariz.2000) (at-will employee, but discussed just cause in dicta); Maietta v. United Parcel Serv., 749 F.Supp. 1344, 1362 (D.N.J.1990) (employment terminable at will and just cause was discussed in dicta). The cases holding as a matter of law that a good-faith standard applies in wrongful termination cases are: Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1024 (2d Cir.1995) (faculty handbook created employment contract); Chrvala v. Borden, Inc., 14 FSupp2d 1013, 1017 (S.D.Ohio 1998) (employee at will, but agreement alluded to requirement of cause); Cotran, 69 Cal.Rptr.2d 900, 948 P.2d at 414 n. 1 (implied contract); Southwest Gas Corp. v. Vargas, 111 Nev. 1064, 901 P.2d 693 (1995) (ambiguous employee manual resulted in requirement of cause); Thompson, 610 N.W.2d 53 (express agreement controlled); Baldwin v. Sisters of Providence in Washing

        ton, Inc., 112 Wash.2d 127, 769 P.2d 298 (1989) (employee manual required cause).

      . Cam Wal cites both federal and state cases. See Logan, 72 F.3d 1017; Almada, 153 F.Supp.2d 1108; Maietta, 749 F.Supp. 1344; Chrvala, 14 F.Supp.2d 1013; Vargas, 111 Nev. 1064, 901 P.2d 693; Thompson, 610 N.W.2d at 57; Baldwin, 112 Wash.2d 127, 769 P.2d 298. In a number of jurisdictions, juries decide whether there was a factual basis to support the employer’s cause determination. See Raymond v. Int’l Bus. Mach. Corp., 954 F.Supp. 744 (D.Vt.1997) (reasoning that Vermont law would not afford employers such deference); Stiles v. Skylark Meats, Inc., 231 Neb. 863, 438 N.W.2d 494, 497 (1989) (under the circumstances, the existence of cause was a question of fact); Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 643 A.2d 546 (1994) (jury must determine if employee engaged in alleged conduct); Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880, 896 (1980) (“Where the employee has secured a promise not to be discharged except for cause, he has contracted for more than the employer's promise to act in good faith or not to be unreasonable.”).

      . See Logan, 72 F.3d 1017 (employee denied committing sexual harassment); Almada, 153 F.Supp.2d 1108 (employee denied he sexually harassed secretary); Maietta, 749 F.Supp. 1344 (employee denied falsifying reports); Chrvala, 14 F.Supp.2d 1013 (employee denied willful violation of company policy); Vargas, 111 Nev. 1064, 901 P.2d 693 (employee denied sexually harassing coworker); Thompson, 610 N.W.2d 53 (employee claimed his actions were not dishonest); Baldwin, 112 Wash.2d 127, 769 P.2d 298 (employee denied sexually harassing patient).