text:
    2002 ND 121
    STATE of North Dakota, Plaintiff and Appellee, v. Brent Gary MAURSTAD, Defendant and Appellant.
    Nos. 20010292, 20010293.
    Supreme Court of North Dakota.
    July 16, 2002.
    Rehearing Denied Aug. 15, 2002.

      Barbara L. Whelan, State’s Attorney, Cavalier, for plaintiff and appellee. ■
    Robin L. Olson, Olson Johnston Law Office, Grand Forks, for deféndant and appellant.
   SANDSTROM, Justice.

[¶ 1] Brent Maurstad appeals from two Northeast Judicial District Court judgments of conviction, one for possession of methamphetamine with intent to deliver and one for manufacturing a controlled substance. The district court had denied his motion to suppress evidence seized during a probationary search of him and his vehicle and a search, of his father’s place of business. We affirm, concluding the search of Maurstad and his vehicle was a valid probationary search, and he abandoned the issue of the validity of the search of his father’s place of business.

I

[¶ 2] At the time of the search, Maur-stad was on probation as a result of a drug-related offense. One condition- of his probation required him .to “submit to search of [his] person, vehicle, or place of residence by any probation [officer] at any time of the day or night, with or without a search warrant.” , .

[¶ 3] A few weeks prior to the search, a law enforcement officer with the Grand Forks Narcotics Task Force informed Maurstad’s probation officers that the task force suspected Maurstad was manufacturing methamphetamine at his father’s tree service shop. Maurstad was working for his father at the time. Maurstad’s probation officers, along with' law enforcement officers, began surveillance of the father’s shop. They were unable to identify Maur-stad at the shop outside of regular business hours, but observed people at the shop between one and two o’clock in the morning, unloading items from a car trunk and moving them into the shop. The probation officers directed local law enforcement officers to stop Maurstad and search, him and his vehicle if they saw Maurstad leaving the shop outside of regular business hours.

, ;[¶ 4] On the evening of May 17, 2001, one of Maurstad’s probation officers received a telephone call from a law enforcement officer informing him that Maurstad was at his father’s shop and asking him whether he wanted Maurstad stopped. The probation officer told the law enforcement officer to stop Maurstad when he left the shop and to wait until he, the probation officer, arrived. The probation officer attempted to contact Maurstad’s other probation officer, but she was not available. The probation, officer arrived at the father’s shop just as Maurstad was leaving, about 8:45 p.m. Maurstad’s vehicle was stopped a few blocks away and searched.

[¶ 5] During the search of Maurstad’s vehicle, the law enforcement officers found a container' with white residue that tested positive for amphetamine, a cooler with a lid secured by duct tape, and lithium battery strips. The officers identified these items as consistent with the manufacture of methamphetamine. Maurstad was arrested and transported to the local sheriffs office. The officers then went to the father’s shop to secure it and gather information for a search warrant. Maurstad’s father arrived at the shop shortly thereafter, and the officers obtained his permission to search the shop. The officers found additional’ evidence of methamphetamine manufacturing.

[¶ 6] Maurstad was charged with two felony offenses: possession of methamphetamine with intent to deliver, and manufacturing a controlled substance. Maurstad moved to suppress the evidence obtained from the searches.

[¶ 7] At the suppression hearing, Maurstad argued the search of him and his vehicle was not the type of search authorized by the terms of his probation because it was not done for a probationary purpose. Rather, he argued, the search was conducted to assist an ongoing criminal investigation. Maurstad also challenged the legality of the search of his father’s shop, alleging his father’s consent was fraudulently obtained because the law enforcement officers told his father a search warrant was on the way. Maur-stad’s father testified he would have consented to the search of his shop regardless of whether the law enforcement and probation officers had obtained a warrant. •

[¶ 8] The district court denied Maur-stad’s motion to suppress, stating, in part:

[The father’s] testimony was apparently different at the hearing on the Motion to Suppress than what defense counsel understood prior to trial. Part of the defendant’s motion was that all items found in the Gary’s Tree Service Building should be suppressed because [the father’s] consent was fraudulently obtained.
Based on [the father’s] testimony any evidence discovered at the business location will be admitted and the Motion to Suppress will be denied.
In the present case Mr. Maurstad was already on probation for drug related offenses. The probation officer received information the defendant was suspected of engaging in the manufacturing of methamphetamine. The probation officer after verifying through police surveillance that the defendant was at his fathers work building and that people known to be involved with controlled substances were coming to this place, directed officers to stop and search him if he left.
The Court concludes this probationary search was reasonably conducted to determine whether the defendant was in compliance with the law. The mere fact the search results in new charges is not unusual, in fact it is commonly the case.
The Court concludes this probationary search was not a subterfuge for a criminal investigation.

Maurstad entered a conditional plea of guilty and then appealed the district court’s denial of his motion to suppress the evidence seized.

[¶ 9] The district court had jurisdiction under N.D. Const.-' art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jur-isdietion under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 10] On appeal, Maurstad argues the evidence seized should be suppressed.

A

[¶ 11] “A trial court’s disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.” State v. LaFromboise, 542 N.W.2d 110, 112 (N.D.1996). “This standard of review acknowledges the significance of the trial court’s opportunity to assess the credibility of witnesses and to weigh their testimony.” State v. Smith, 1999 ND 9, ¶ 10, 589 N.W.2d 546. Whether a violation of the constitutional prohibition against unreasonable searches and seizures- has occurred is a question of law. LaFromboise, at 112. When reviewing the constitutionality of probationary searches, we have interpreted the. North Dakota Constitution'to provide the same protections for probationers as provided by the United -States Constitution. Smith, at ¶ 24 (search performed in a reasonable manner did not violate either the state or federal constitution); LaFromboise, at 111-14 (challenge to search based on both the state and federal constitutions upheld on the same grounds).

B

[¶ 12] Maurstad argues the probationary search of him and his vehicle was subterfuge to advance a criminal investigation and was a violation of the Fourth Amendment.

[¶ 13] The authority for imposing conditions of probation is created by N.D.C.C. § 12.1-32-07(4), which provides, in part:

When -imposing a sentence to probation, probation in conjunction with imprisonment, or probation in conjunction with suspended execution or deferred imposition of sentence, the court may impose such conditions.as it deems appropriate and may include any one or more of the following:
n. Submit the defendant’s person, place of residence, or vehicle to search and seizure by a probation officer at any time of the day or night, with or without a search warrant.

[¶ 14] In State v. Perbix, this Court set forth the framework for reviewing the constitutionality of probationary searches. 331 N.W.2d 14 (N.D.1983). The probationer in Perbix was on probation following his conviction for possession of a controlled substance. The terms of his probation included “the search of his person, place of residence and motor vehicle, at any time, day or night, by any police officer or probation officer, with or without a search warrant and with or without probable cause.” Id. at 15. Local law enforcement officers decided to search the probationer’s residence “because the search provision had not been previously implemented.” Id. The search revealed marijuana and hashish, and he was charged with two counts of felony possession of a controlled substance. Id. at 16. The probationer attempted to suppress the evidence from the search by arguing the search clause was invalid because it authorized law enforcement officers as well as probation officers to conduct searches, contrary to N.D.C.C. § 12.1-32-07, which did not mention law enforcement officers. Id. at 17. The probationer also argued the search violated the Fourth Amendment. Id. at 16.

[¶ 15] Maurstad confuses the ■ specific probation clause at issue in Perbix with the history of N.D.C.C. § 12.1-32-07. The probation clause in Perbix allowed probationary searches by police officers, but N.D.C.C. § 12.1-32-07 has never included language specifically permitting or prohibiting police officers from conducting probationary searches. Section 12.1-32-07 became effective July 1, 1975, and although the subsections have been renumbered, the language allowing for searches and seizures of probationers, their residences, or vehicles has not-changed. See 2001 N.D. Sess. Laws ch. 139, § 1; 1997 N:D. Sess. Laws ch. 133, § 1; 1995 N.D. Sess. Laws ch. 138, § 1; 1993 N.D. Sess. Laws ch. 130, § 1; 1989 N.D. Sess. Laws ch. 158, § 4; 1973 N.D. Sess. Laws.ch. 116, § 31.

[¶ 16] In Perbix, this Court held N.D.C.C. § 12.1-32-07 did not “necessarily limit the authority to conduct such searches to probation officers only.” Id. at 18. After reviewing the approaches taken by several other jurisdictions, this Court was persuaded by “the collective rationale of those courts which find no constitutional infirmity in allowing police officers, as well as probation officers, to conduct warrant-less searches as a condition of probation.” Id. at 20. This Court specifically pointed to United States v. Consuelo-Gonzalez, 521 F.2d 259, 267 (9th Cir.1975), for the proposition a probationary search could not be conducted as “a subterfuge for criminal investigations.” The Court concluded:

conditions of probation requiring the probationer to submit to warrantless searches by probation officers or law enforcement officers, to the extent such-searches contribute to the rehabilitation process; are not used as a subterfuge for criminal investigations; ■ and are performed in a reasonable manner, are valid and not violative of the Fourth Amendment.

Perbix, 331 N.W.2d at 21.

[¶ 17] In addition, this Court declined to “impose a requirement that such searches may be permitted only upon a showing of ‘reasonable suspicion’ or ‘probable cause.’ ” Id. This Court summarized its holding by stating:

Although there can often exist a fine line between.purely probationary or correctional purposes and police investigatory objectives, under the facts presented here, we conclude that the predominant purpose for the search was to determine whether or not the conditions of Perbix’s probation had been violated. It was not an intimidating and harassing search designed, to serve law .enforcement ends totally unrelated to either Perbix’s conviction or his rehabilitation.
Because the search provision in the instant case related to Perbix’s prior criminal ■ conduct, ' related to activity which is criminal in itself, and prohibited conduct which is reasonably related to future' 'Criminality under the test set forth in [State v.] Schlosser, [202 N.W.2d 136 (N.D.1972)], the search provision and the resultant search, which was performed in a reasonable manner, did not violate the defendant’s Fourth Amendment rights. Furthermore, because the search provision was reasonably necessary to ensure that Perbix lead a law-abiding life, the provisions of § 12.1-32-07, N.D.C.C., were not violated.

Id. at 22.

[¶ 18] Since Perbix, challenges to the validity of a probationary search authorized by a condition of probation have been reviewed under the standard of whether the search was reasonable, including whether the search was performed in a reasonable manner, whether the' search was a subterfuge for criminal investigation, and whether the search contributed-to the probationer’s rehabilitation. See State v. Smith, 1999 ND 9, ¶ 19, 589 N.W.2d 546; State v. LaFromboise, 542 N.W.2d 110, 112-13 (N.D.1996); State v. Raywalt, 444 N.W.2d 688, 690 (N.D.1989); State v. Perbix, 331 N.W.2d 14, 21 (N.D.1983).

[¶ 19] Four years after this Court’s decision in Perbix, the United States Supreme Court addressed the constitutionality of probationary searches. Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). A Wisconsin Department of Health and Social Services regulation provided that a probationary search could be conducted without a warrant as long as the -probationer’s supervisor approved and as long as there were “reasonable grounds” to believe contraband was present. Id. at 870-71, 107 S.Ct. 3164, 97 L.Ed.2d 709. Probation officers received information from law enforcement officers that the probationer might have guns in his apartment. Id. at 871, 107 S.Ct. 3164, 97 L.Ed.2d 709. A warrantless search was conducted, and as a result of the search, the probationer was charged with possession of a firearm by a convicted felon. Id. at 872, 107 S.Ct. 3164, 97 L.Ed.2d 709. The probationer challenged the search of his home by probation officers without a search warrant. Id.

• ■[¶ 20] The Supreme Court upheld the search, holding: “The search of [the probationer’s] home satisfied the demands of the Fourth Amendment because it was carried out pursuant to a regulation that itself satisfies the Fourth Amendment’s reasonableness requirement under well-established principles.” Id. at 873, 107 S.Ct. 3164, 97 L.Ed.2d 709. The Supreme Court also stated, “[a] State’s operation of a probation system ... presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” Id. at 873-74, 107 S.Ct. 3164, . 97 L.Ed.2d 709. The Supreme Court concluded by stating its “conclusion makes it unnecessary to consider whether ... any search of a probationer’s home by a probation officer is lawful when there are ‘reasonable grounds’ to believe contraband is present.” Id. at 880,107 S.Ct. 3164, 97 L.Ed.2d 709.

[¶ 21] In 1999, we reviewed the constitutionality of a probationary search in light of the Griffin decision. State v. Smith, 1999 ND 9, 589 N.W.2d 546. In Smith, a probationer challenged the warrantless search of his residence by his probation officer and members of local law enforcement agencies. Id. at ¶¶ 1, 4. The probationer was on supervised probation as a result of convictions for possessing drug paraphernalia and making a false report to a law enforcement officer. Id. at ¶ 2. His conditions of probation included a clause stating he was to “submit to a search of his person, vehicle, or place of residence by any probation officer at any time of the day or night, with or without a search warrant.” Id. The probationer’s probation officer was informed by law enforcement officers that the probationer was suspected of drug activity in his home. Id. at ¶ 3. The probation officer, with the assistance of law enforcement officers, searched the probationer’s home and vehicle, and during the search, marijuana and drug paraphernalia were found. Id. at ¶ 5.

[¶ 22] The probationer argued, in light of Griffin v. Wisconsin, “reasonable suspicion” was required for a valid probationary search and because Perbix had not required reasonable suspicion, Perbix should be overruled. Id. at ¶ 18; see also Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987); State v. Perbix, 331 N.W.2d 14, 21 (N.D.1983). We rejected the probationer’s interpretation of Griffin and concluded Griffin could-be harmonized with the holding in Perbix:

Griffin does not specifically require reasonable suspicion; it requires the search to be reasonable under a state’s statute on probationer searches. Further, nothing in Griffin suggests the clear logic and holding of Perbix should be reversed.

State v. Smith, 1999 ND 9, ¶ 18, 589 N.W.2d 546. In Smith, we endorsed the continuing validity of Perbix, id. at ¶ 16, and again “declined to impose a requirement probationary searches may only be carried out upon a showing of ‘probable cause’ or ‘reasonable suspicion.’ ” Perbix, at 21; see also State v. LaFromboise, 542 N.W.2d 110, 112 (N.D.1996) (affirming Perbix); State v. Raywalt, 444 N.W.2d 688, 690 (N.D.1989) (reaffirming Perbix).

[¶ 23] Since Smith, the United States Supreme Court has once more addressed the legality of probationary searches. United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Maurstad argues that under Knights, a warrantless probationary search for an “investigatory” purpose is invalid and a probationary search must be based on “reasonable suspicion” to be valid.

[¶ 24] In Knights, a probationer challenged the warrantless probationary search of his home. Id. at 590, 122 S.Ct. 587, 151 L.Ed.2d 497. The probationer was on probation for a drug offense, and the conditions of his probation required him to “ ‘[s]ubmit his ... person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probationer officer or law enforcement officer.’ ” Id. at 589,122 S.Ct. 587, 151 L.Ed.2d 497. After becoming suspicious that the probationer was involved in an arson, a law enforcement officer decided to conduct a search of the probationer’s home under the search clause in his conditions of probation. Id. The search revealed evidence connected to the arson, and the probationer was indicted “for conspiracy to commit arson, for possession of an unregistered destructive device, and being a felon in possession of ammunition.” Id. at 589-90, 122 S.Ct. 587, 151 L.Ed.2d 497.

[¶ 25] The probationer moved to have the evidence suppressed, and the district court granted his request, stating that although the law enforcement officer had reasonable suspicion to believe the probationer was involved with incendiary materials, the search was conducted for “investigatory” rather than “probationary” purposes. Id. at 590, 122 S.Ct. 587, 151 L.Ed.2d 497. The Ninth Circuit Court of Appeals agreed and upheld , the suppression on appeal. Id. (citing United States v. Knights, 219 F.3d 1138 (9th Cir.2000)). The Supreme Court disagreed and reversed the suppression of the evidence. Id. at 593, 122 S.Ct. 587, 151 L.Ed.2d 497.

[¶ 26] The Supreme Court used its “general Fourth Amendment approach of ‘examining the totality of the circumstances’ ” to decide the validity of the search of the probationer’s home. Id. at 591, 122 S.Ct. 587, 151 L.Ed.2d 497. The Supreme Court stated, “the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Id. at 591, 122 S.Ct. 587, 151 L.Ed.2d 497 (citing Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)). The Supreme Court discussed the individual and governmental interests at issue when a probationer is subject to a search condition, concluding “the balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationer’s house.” Id. at 592, 122 S.Ct. 587, 151 L.Ed.2d 497. Accordingly, the Supreme Court held;

When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.
The same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary.

Id. at 593, 122 S.Ct. 587, 151 L.Ed.2d 497 (citations omitted). Because the district court found there was reasonable suspicion for the search and the probationer admitted there was reasonable suspicion for the search, the Supreme Court held “that the warrantless search of [the probationer], supported by reasonable suspicion and authorized by a condition of probation, Was reasonable within the meaning of the Fourth Amendment.” Id.

[¶27] The Supreme Court declined to address a situation where a search was not supported by reasonable suspicion.

We do not decide whether the probation condition so diminished, or completely eliminated, [the probationer’s] reasonable expectation of privacy (or constituted consent) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspieionless search because the search in this case was supported by reasonable suspicion.

Id. at 592 n. 6, 122 S.Ct. 587, 151 L.Ed.2d 497 (internal citation omitted).

[¶ 28] Knights does not hold that a probation or police officer must have reasonable suspicion for a probationary search to be valid. Nor does Knights say a warrantless probationary search, conducted under a search clause allowing a search without suspicion, would violate the Fourth Amendment. Rather, Knights holds, in part, that when a probationary search is authorized by a condition of probation and is supported by reasonable suspicion, it is reasonable under the Fourth Amendment. Id. at 593,122 S.Ct. 587, 151 L.Ed.2d 497. We need not apply our prior case law holding reasonable suspicion or probable cause is unnecessary for a probationary search to be valid, see Smith, 1999 ND 9, ¶ 9, 589 N.W.2d 546; LaFromboise, 542 N.W.2d at 112; Perbix, 331 N.W.2d at 21; N.D.C.C. § 12.1-32-07(4), because a probationary search supported by reasonable. suspicion and authorized by a condition of probation is a valid probationary search. See Knights, 122 S.Ct. at 593, 122 S.Ct. 587, 151 L.Ed.2d 497.

[¶ 29] The Knights decision also addressed the issue of official purpose.

Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, see Indianapolis v. Edmond, 531 U.S. 32, 45,121 S.Ct. 447, 148 L.Ed.2d 333 (2000), “we have been unwilling to entertain Fourth Amendment challenges based, on the actual motivations of individual officers.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 593, 151 L.Ed.2d 497 (2001). The Knights decision applied the holding of Whren, which stated, “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” to cases involving a less than probable cause standard. See id; Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

[¶ 30] This portion of the Knights decision has been interpreted as holding the purpose of a probationary search is not 'relevant when deciding whether the search was valid.

[C]ases in this circuit, however, did support the proposition that a probation search that was a subterfuge for a erimi-nal investigation violated the Fourth Amendment.
The Supreme Court put a stop to this line of reasoning, however, in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Knights overturned a ruling of this'court invalidating a search of a probationer on the ground that the search was not for probationary purposes, but was a mere subterfuge for a criminal investigation. The Supreme Court upheld the search as supported by reasonable suspicion in light of the totality of the circumstances, and stated that “there is no basis for examining official purpose.” Accordingly, our circuit’s line of cases holding searches of probationers invalid on the ground that they were subterfuges for criminal investigations is, in that respect, no longer good law.

United States v. Stokes, 286 F.3d 1132, 1135 (9th Cir.2002). See, e.g., Moreno v. Baca, 2002 WL 338366, at *10 n. 17, 2002 U.S. Dist. LEXIS 3902, at *36 n. 17 (C.D.Cal. Feb. 25, 2002) (“The Supreme Court also noted that the Fourth Amendment does not limit searches pursuant to a probationary condition to those with a ‘probationary’ purpose.”); North Carolina v. Robinson, 148 N.C.App. 422, 560 S.E.2d 154, 159 (2002) (“[T]he Fourth Amendment does not limit searches pursuant to probation conditions to those searches that have a ‘probationary purpose.’ ”). As United States v. Stokes states, cases from the Ninth Circuit holding searches -of probationers invalid on the ground that they were subterfuge for criminal investigations are no longer good law. Consequently, the federal precedent, United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975), relied on by this Court in Perbix is no longer good law.

[¶ 31] We agree with this interpretation of Knights and modify our standard for the validity of a probation search. We hold the alleged purpose of a probationary search is irrelevant to the determination of its validity, and overrule the portion of Perbix that requires the purpose of a probationary search be considered when deciding the validity of a probationary search. We will no longer consider whether the search was conducted as a subterfuge for a criminal investigation. See United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 592, 151 L.Ed.2d 497 (2001).

[¶ 32] To summarize, we need not apply our prior case law holding reasonable suspicion or probable cause is unnecessary for a probationary search to be valid. When a probationary search authorized by a condition of probation is supported by reasonable suspicion, the search is valid. Finally, we will no longer consider whether a probationary search was conducted as subterfuge for a criminal investigation.

C

[¶ 33] Here, we conclude the validity of Maurstad’s probationary searches can be decided using the standard articulated in Knights: whether the searches were authorized by a condition of probation and supported by reasonable suspicion.

[¶ 34] The district court found that Maurstad’s probationary search was reasonable, and stated:

In the present case Mr. Maurstad was already on probation for drug related offenses. The probation officer received information the defendant was suspected of engaging in the manufacturing of methamphetamine. The probation officer after verifying through police surveillance that the defendant was at his fathers work building and that people known to be involved with controlled substances were coming to this place, directed officers to stop and search him if he left.
The Court concludes this probationary search was reasonably conducted to determine whether the defendant was in compliance with the law. The mere fact the search results in new charges is not unusual, in fact it is commonly the case.
The Court concludes this probationary search was not a subterfuge for a criminal investigation.

Although the district court did not review the probationary searches of Maurstad and his vehicle to determine whether Maur-stad’s probation officer had a reasonable suspicion to conduct the searches, the district court made sufficient findings of fact to allow us to review whether the facts support a reasonable suspicion.

[¶ 35] The ultimate conclusion of whether facts support a reasonable suspicion is a question of law and is fully reviewable on appeal. State v. Kenner, 1997 ND 1, ¶ 7, 559 N.W.2d 538. Reasonable suspicion exists when a reasonable person “would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity.” City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466. “[0]fficers are to assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.” Id. (quoting City of Fargo v. Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901 (citations omitted)).

[¶ 36] Maurstad’s probation conditions authorized searches of him, his vehicle, and his place of residence at any time, with or without a search warrant. Law enforcement officers suspected Maurstad of manufacturing methamphetamine and contacted his probation 'officers with this information. After seeing Maurstad leave the location where the officers suspected the methamphetamine manufacturing operation was taking place, Maurstad was stopped and his vehicle was searched. The search began at approximately 8:45 p.m. and was concluded within 45 minutes to an hour. Once evidence of methamphetamine manufacturing was found in his vehicle, Maurstad was placed under arrest.

[¶ 37] We agree with the district court’s finding that Maurstad’s probationary search was reasonable, and conclude that under the totality of the circumstances, Maurstad’s probation officer had a reasonable suspicion that Maurstad was engaged in unlawful activity. Because the searches were authorized by a condition of Maurstad’s probation and his probation officer had a reasonable suspicion that Maurstad was engaging in unlawful activity, the searches did not violate the Fourth Amendment. See Knights, 122 S.Ct. at 593.

[¶ 38] Our decision is based on the probation officer’s reasonable suspicion coupled with the search condition of Maur-stad’s probation, and we need not decide whether a suspicionless search would satisfy the Fourth Amendment. See Knights, 122 S.Ct. at 592 n. 6.

D

[¶ 39] On appeal, Maurstad abandoned any challenge to the suppression of the evidence obtained from the search of his father’s shop on the basis of his father’s consent. Maurstad’s brief did not argue his father’s consent was fraudulently obtained. At oral argument, when asked whether Maurstad was attempting to suppress the evidence from the search of his father’s shop in addition to the search of him and his car, Maurstad’s counsel responded that the evidence from the shop should be suppressed under the “fruit of the poisonous tree” doctrine. Maurstad’s brief did not argue for suppression based on the “fruit of the poisonous tree” doctrine, nor did he ai’gue this alternative theory to the district court. “Because [these issues were] not briefed or raised below, we do not consider [them] on this appeal.” Minot v. Freelander, 380 N.W.2d 321, 324 n. 4 (N.D.1986).

Ill

[¶ 40] Because the probationary search of Maurstad and his car did not violate the Fourth Amendment or article I, section 8, of the North Dakota Constitution, and because Maurstad has abandoned his appeal of the consent to search his father’s place of business, we affirm the district court’s judgments of conviction.

[¶ 41] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, CAROL RONNING EAPSNER and MARY MUEHLEN MARING, JJ, concur.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. KONENKAMP, Justice GORS, Acting Justice

license: Public Domain

text:
    2002 SD 70
    In the Interest of S.J.N-K., A Minor.
    No. 21921.
    Supreme Court of South Dakota.
    Argued March 27, 2002.
    Decided June 12, 2002.

      Mark Barnett, Attorney General, Frank E. Geaghan, Assistant Attorney General, Pierre, for State.
    Marcia R. Brevik, Brevik Law Office, Yankton, for appellant, child.
   GILBERTSON, Chief Justice.

[¶ 1.] S.J.N-K. was found guilty of disorderly conduct when he pursued, in a vehicle driven by his brother, his former middle school principal, Wayne Kindle (Kindle), at a public business and repeatedly mouthed the words “fuck you,” with the accompanying middle finger gesture, in the presence of Kindle’s family. As a result of this conviction, the court adjudicated S.J.N-K. a delinquent child. S.J.N-K. appeals both the disorderly conduct conviction and the delinquency adjudication. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On the afternoon of August 27, 2000, Kindle, the principal of Yankton Middle School, had stopped at the Save-U-More store to pick up a paper after having taken his family to Sunday dinner. He and his youngest son went in to get the paper while the rest of his family waited outside in the van. On his way in, Kindle and his son met S.J.N-K., his little brother and another boy. Kindle said “hi” and went into the store.

[¶ 3.] When Kindle and his son returned to the van, the boys were still in the parking lot. Kindle’s son said that one of the boys was saying bad things and “flipping us off.” Kindle turned to see S.J.N-K. mouthing the words “fuck you” and extending his middle finger. Kindle told his children “just shut the van door and we’re going to go.” But as Kindle pulled out of the parking lot, one of his children told Kindle to look behind because the boys “were pretty close.” The car S.J.N-K. was riding in tailgated Kindle until he stopped before entering 23rd Street.

[¶ 4.] Once Kindle stopped, the boys cut diagonally across the adjacent parking lot of a car wash and cut in front of Kindle as he pulled out on to the street. Kindle’s wife said “you better look out because they are coming across the parking lot.” Kindle “hit the brakes” to avoid a collision and S.J.N-K. “continue[d] to flip [their] vehicle off.” Kindle testified “My mother-in-law was in the front seat with me and so I slowed down because I didn’t think the kids needed to see that or anybody else in the family....” Instead of continuing on ahead, the car S.J.N-K. was riding in also slowed down. S.J.N-K. continued sticking his hand out of the car window with his middle finger raised. Eventually, S.J.NK. also stuck his head out of the window and mouthed the words “fuck you” again. When asked if he was “alarmed” by S. J.NK.’s behavior, Kindle replied “Yeah, I was surprised' by that. I didn’t expect anything like that. If someone is mad at me about something, that’s fine, but I certainly do not appreciate my kids being involved in that or my family.” Kindle also testified that he feared for the safety of his passengers.

[¶ 5.] On March 8, 2001, S.J.N-K. was found guilty of disorderly conduct pursuant to SDCL 22-13-1(1). The court also entered an order adjudicating S.J.N-K. a delinquent child as defined in SDCL chapters 26-7 and 26-8C. S.J.N-K. was placed on unsupervised probation for six months and was ordered to perform twenty hours of community service. S.J.N-K. now appeals the juvenile court’s rulings, raising the following issues:

1. Whether S.J.N-K.’s profanity, coupled with his offensive gestures and subsequent actions, is constitutionally protected speech.
2. Whether the evidence is sufficient to sustain S.J.N-K.’s conviction for disorderly conduct under SDCL 22-13-1.
3. Whether the trial court’s adjudication of S.J.N-K. as a delinquent child amounted to an unconstitutional application of SDCL 22-13-1.

STANDARD OF REVIEW

[¶ 6.] Constitutional questions, such as those involving First Amendment rights, are reviewed by this Court de novo. City of Pierre v. Blackwell, 2001 SD 127, ¶ 7, 635 N.W.2d 581, 584 (citing Steinkruger v. Miller, 2000 SD 83, ¶ 8, 612 N.W.2d 591, 595).

[¶ 7.] We review the juvenile court’s findings of fact under the clearly erroneous standard. State v. Milk, 519 N.W.2d 313, 320-21 (S.D.1994) (citing SDCL ch 26-7A). “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (quoting Rabenberg v. Rigney, 1999 SD 71, ¶ 4, 597 N.W.2d 424, 425) (additional citations omitted). “The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994) (citations omitted). Conclusions of law, however, are reviewed de novo. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citations omitted).

[¶ 8.] In reviewing the sufficiency of the evidence, we determine “whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905 (quoting State v. Knecht, 1997 SD 53, ¶22, 563 N.W.2d 413, 421). We will not reweigh or resolve conflicts in the evidence, nor will we pass on the credibility of witnesses. Id. Therefore, “we must accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict.” Id.

ANALYSIS AND DECISION

[¶ 9.] 1. Whether S.J.N-K.’s profanity, coupled with his offensive gestures and subsequent actions, is constitutionally protected speech or punishable as disorderly conduct under SDCL 22-13-1.

[¶ 10.] S.J.N-K. was convicted of disorderly conduct under SDCL 22-13-1(1), which provides that “[a]ny person who intentionally causes serious public inconvenience, annoyance, or alarm to any other person, or creates a risk thereof by: (l)[e]ngaging in fighting or in violent or threatening behavior; ... is guilty of disorderly conduct.” The statute must be narrowly construed so as to cover only language or conduct that is not constitutionally protected. See Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408, 414 (1972). Therefore, we must first address whether S.J.N-K.’s profanity, coupled with his offensive gestures and conduct, is protected speech under the First Amendment.

[¶ 11.] The First Amendment prohibits laws “abridging the freedom of speech.” US Const. amend. I. But the right to free speech is not absolute or unqualified. See State v. Springer-Ertl, 2000 SD 56, ¶ 17, 610 N.W.2d 768, 773.

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. “Resort to epithets or personal abuse is not in' any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.”

Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035 (1942) (quoting Cantwell v. Connecticut, 310 U.S. 296, 309-10, 60 S.Ct. 900, 906, 84 L.Ed. 1213, 1221 (1940)) (additional citations omitted). Thus, those expressions that may be termed “fighting words” are not afforded constitutional protection.

[¶ 12.] “Fighting words,” as defined in Chaplinsky are those words that “inflict injury” or “incite an immediate breach of peace.” Id. They have also been defined as “... those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke a violent reaction.” Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284, 291 (1971). The speech may be termed “fighting words,” and therefore unprotected, if it would cause the average person to react violently. See, e.g., State v. Hammersley, 134 Idaho 816, 10 P.3d 1285 (2000) (holding defendant’s statement to her 13-year-old daughter’s minor friend, to “shut your fucking mouth, you bitch” fell within “fighting words” exception to free speech); State v. Groves, 219 Neb. 382, 363 N.W.2d 507 (1985) (holding words “fuckhead” and “mother fucker” are fighting words, not constitutionally protected speech); State v. Wood, 112 Ohio App.3d 621, 679 N.E.2d 735 (1996) (holding that to tell someone “fuck you” either verbally or via gesture, may be considered fighting words, under certain circumstances); C.J.R. v. State, 429 So.2d 753 (Fla.Dist.Ct.App.1983) (holding unprovoked use of words “fuck this shit” and “mother fucker” constituted fighting words)! Whether the target of such provocation does not, in fact, retaliate is not determinative. See State v. Authelet, 120 R.I. 42, 385 A.2d 642 (R.I. 1978) (holding as long as language is inherently likely to cause average person to react violently, it is not necessary that the person who is insulted actually react); Matter of Welfare of M.A.H., 572 N.W.2d 752 (Minn.Ct.App.1997) (holding fact that target did not retaliate is relevant but not determinative); Shuler v. State, 195 Ga.App. 849, 395 S.E.2d 26 (1990) (holding fact that actual violence did not ensue is not determinative).

[¶ 13.] The context or circumstances in which the language is used must also be considered. See F.C.C. v. Pacifica Found., 438 U.S. 726, 745, 98 S.Ct. 3026, 3038, 57 L.Ed.2d 1073, 1090 (1978) (citing Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 248, 63 L.Ed. 470, 473 (1919)). There may be instances where the profanity used by S.J.N-K. is considered protected speech. See, e.g., State v. John W., 418 A.2d 1097 (Me.1980) (holding epithets directed at police officer, as a protest to arrest after officer refused to tell juveniles why they had been pulled over, were not fighting words); Ware v. City and County of Denver, 182 Colo. 177, 511 P.2d 475 (1973) (holding defendant’s comment “fuck you” during political speech at university was protected speech). In re Louise C., 197 Ariz. 84, 3 P.3d 1004 (1999) (holding juvenile’s use of “F” word in argument with principal and another student over whether student had stolen her money did not constitute fighting words). The trial court noted in its opinion that different facts may have resulted in a different outcome.

If the juvenile in this case had said fuck you to Mr. Kindle once, if he had used the middle finger gesture once, if it was in the context of a statement or an argument or a political rally or in some other manner where language was being used to communicate an idea, [or] an expression.

However, that is not what happened here and we do not address theoretical factual alternatives.

[¶ 14.] This was not merely the use of one profane word or one obscene gesture, it was an ongoing aggression that falls outside free speech protection. See State v. James M., 111 N.M. 473, 806 P.2d 1063 (Ct.App.1990) (holding defendant’s repeated yelling of the phrase “fuck you,” while flailing arms and pointing at another individual on a public sidewalk, constituted unprotected speech and was punishable as disorderly conduct). S.J.N-K.’s act of retaliation against Kindle for not letting him skip the eighth grade and advance to high school is not political speech. It was an unprovoked form of harassment, done but for no apparent purpose than to incite a violent reaction in Kindle. S.J.N-K. is not relieved of guilt simply because his attempts to provoke Kindle were unsuccessful.

[¶ 15.] 2. Whether the evidence is sufficient to sustain S.J.N-K.’s conviction for disorderly conduct under SDCL 22-13-1.

[¶ 16.] Because we find S.J.N-K.’s profanity and conduct are not protected speech, the next step is to determine whether the evidence in this case is sufficient to sustain a conviction for disorderly conduct. S.J.N-K. chose to make his vulgarisms, part of a course of conduct, pursuing Kindle and persisting even when the target of his provocation attempted to disengage. S.J.N-K.’s actions amounted to fighting and threatening behavior which, at a minimum, created a risk of “serious public inconvenience, annoyance, or alarm” to both Kindle and his family. It is true that the mere use of profanity is not sufficient to convict S.J.N-K. for disorderly conduct. But we do not view S.J.NK.’s use of profanity in a vacuum. The use of this language in light of the circumstances is sufficient to uphold his conviction. As the trial court correctly stated:

In our country we are able to say and use language that is offensive to others. We can use gestures that are offensive to others, but we must look at the context of that language or expression.... Simply to say that a person can use offensive language and offensive gestures on a continuing basis in a situation such as is before this court would be beyond the pale of what is required under the law.

Accepting, as we must, the evidence and inferences in favor of the verdict, we do not see that the. trial court’s decision in this case is clearly erroneous.

[¶ 17.] 3. Whether the trial court’s adjudication of S.J.N-K. as a delinquent child amounted to an unconstitutional application of SDCL 22-13-1.

[¶ 18.] Given our -holding that S.J.NK.’s language and conduct were not protected speech, as well as the extensive evidence supporting a conviction for disorderly conduct under SDCL 22-13-1(1), we find this argument without merit. Accordingly, we affirm the decision of the trial court adjudicating S.J.N-K. a delinquent child.

[¶ 19.] SABERS, Justice, concurs.

[¶ 20.] KONENKÁMP, Justice, concurs in result.

[¶ 21.] AMUNDSON, Justice, and GORS, Acting Justice, dissent.

[¶ 22.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

KONENKAMP, Justice

(concurring in result).

[¶ 23.] In this case, the juvenile was charged with a violation of SDCL 22-13-1(1) in that he “did cause serious public inconvenience, or alarm to another person, or created a risk thereof, by engaging in fighting or violent or threatening behavior.” The trial court held that repeatedly mouthing the words “f — k you” and gesturing with his middle finger constituted disorderly conduct. If it had been just once, the court reasoned, perhaps it would have been protected under the First Amendment.

[¶ 24.] When expression is not threatening, does not constitute “fighting words,” and is not likely by its very utterance to inflict injury or provoke the average person to immediate retaliatory violence, disorderly conduct has not been shown. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035 (1942). It is most doubtful that an “average person,” much less a school principal, would have responded violently to this eighth grader’s behavior, though it was vulgar and disrespectful. We need not decide today, however, whether the ongoing use of these words and gestures is excluded from the protection of the First Amendment. Here we have words and gestures mixed with conduct.

[¶ 25.] The record undisputedly shows that the truck driven by the juvenile’s brother cut across the parking lot and drove in front the principal’s, car, forcing him to “hit his brakes” to avoid a collision. When this happened, the principal’s front seat passenger. lurched forward and grabbed . the dashboard with her . hand. The obvious purpose of the brother’s maneuver was to allow the juvenile to persist in his harassment of the principal and his family. Why else would the truck slow down each time the principal slowed down while the juvenile continued his vulgar words and gestures? The question this appeal presents is whether the evidence in the record, with the most favorable inferences to be drawn therefrom, is sufficient to sustain a finding of guilt beyond a reasonable doubt. State v. Gonzalez, 2001 SD 47, ¶ 7, 624 N.W.2d 836, 838.

[¶ 26.] This is a case of mixed conduct and speech, which under the circumstances constituted “threatening behavior.” SDCL 22-13-1(1). Such behavior is not protected by the First Amendment. “The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited.” Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487, 491 (1965). Accordingly, I would affirm the adjudication of delinquency, but for reasons different from those given by the majority.

GORS, Acting Justice

(dissenting).

[¶ 27.] I respectfully dissent.

[¶ 28.] Many forms of conduct and language, although distasteful to certain individuals or even a majority of people, are nevertheless afforded constitutional protection. The First Amendment of the United States Constitution protects most forms of expression — even profane, course, vulgar and obnoxious speech is afforded some level of protection. This was made clear in Cohen, when the Supreme Court reversed the conviction of a defendant who was arrested and convicted for wearing a coat emblazoned with the words, “fuck the draft”:

Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

403 U.S. at 25, 91 S.Ct. at 1788, 29 L.Ed.2d at 294. Just because the government finds protected speech offensive does not mean it has the right to suppress it. F.C.C., 438 U.S. at 745, 98 S.Ct. at 3038, 57 L.Ed.2d at 1091.

[¶ 29.] As the majority correctly recognizes, however, freedom of expression has its limits. In Chaplinsky the United States Supreme Court held that “fighting words” are outside the protection of the First Amendment. 315 U.S. at 572, 62 S.Ct. at 769, 86 L.Ed. at 1035. The Supreme Court defined “fighting words” as words “which by their very utterance inflict injury or tend to incite an immediate breach of peace.” Id. at 571, 62 S.Ct. at 769, 86 L.Ed. at 1035.

[¶ 30.] Under South Dakota law, á person is'guilty of disorderly conduct if that person “intentionally causes serious public inconvenience, annoyance, or alarm to any other person, or creates a risk thereof by: (l)[e]ngaging in fighting or in violent or threatening behavior.” SDCL 22-13-1(1) (emphasis added). This statute has been drawn to include, as a violation, those epithets amounting to “fighting words.” Therefore, in order to constitute disorderly conduct, language or gestures that are merely distasteful cannot be punished.

[¶ 31.] In deciding whether S.J.N-K.’s actions constitute disorderly conduct, the surrounding circumstances must be taken into consideration. . We must look to the particular situation and the person who was insulted. See Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214, 220 (1974) (stating, “words may or may not be ‘fighting words,’ depending upon the circumstances of their utterance”). The nature of Mr. Kindle’s experience, training and responsibilities must be considered in determining whether S.J.N-K.’s conduct constituted a violation of SDCL 22-13-1(1).

[¶32.] S.J.N-K.'s conduct was obnoxious and rude. However, S.J.N-K.’s conduct was not likely to provoke an ordinary citizen to a violent reaction, and was even less likely to provoke a violent response from the school principal, Mr. Kindle, the alleged victim in this case. Indeed, the conduct did not. Mr. Kindle testified:

Q: Did these things elicit in you a desire to fight with [S.J.N-K.]?
A: No.
Q: Did these things elicit from you a desire to act violently in any way?
A: No.
Q: Did [S.J.N-K.] entice you to fight by getting out of the vehicle or invite you out of your vehicle?
A: No.

Eurther, Mr. Kindle chose to continue to follow the vehicle for nearly a mile, even though he had ample opportunities to turn around. Mr. Kindle was asked,

Q: If one of your students in school ... is feeling threatened by another person and reports that to you as the administrator, would it be your advice to that student to follow that other person?
A: No.

S.J.N-K. is not here because he tried to start a fight. S.J.N-K. is here simply because he mouthed . “fuck you” and flipped-off the principal. Substitute S.J.N-K.’s language and gesture with the idea being expressed — “I hate you.” If S.J.N-K. had waved with all of his fingers and mouthed, “I hate you,” we would not be here today.

[¶ 33.] In People of City of Oak Park v. Smith, 79 Mich.App. 757, 262 N.W.2d 900 (1977), the defendant, while involved in a minor traffic altercation, gave a plainclothes police officer the finger, and the defendants lips “were observed to move in what [the officer] believed to be an obscene utterance.” Id. at 901. The court found that these ■ were not “fighting words.” Id. at 903. Although “immature” and hurtful to the officer’s pride, they did not lead to a breach of the peace. Id. The gesture was not intended to provoke a fight or a breach of the peace. The motorist was merely registering displeasure. In fact, the’ court noted that such expressions were common in congested traffic. Id.

[¶ 34.] ’ While S.J.N-K.’s speech and conduct were also, immature and likely hurt Mr. Kindle’s pride, they did not inflict injury or tend to incite an immediate breach of the peace, and they therefore do not constitute “fighting words.”

[¶ 35.] As the court in City of Oak Park stated, “[g]iven the right circumstances, the law may -retaliate, not with its finger but with its long arm.” Id. The right circumstances do not exist in this case.

[¶ 36.] I dissent.

[¶ 37.] AMUNDSON, Justice, joins this dissent. '

      . While Kindle’s children told him that they had heard “some pretty bad words,” Kindle only saw S.J.N-K. mouthing the words "F-U” or "F-something.”

      . Kindle said that he had seen S.J.N-K. mouth "the 'F' word” four times.

      . S.J.N-K. attempts to distinguish between his own actions and those of the driver in this case. He points out that the statutory provisions relating to aiding and abetting a misdemeanor have been repealed. See 1996 SDSessL ch 158 §§ 3-5. We find this argument unpersuasive. We acknowledge that S.J.N-K. was not driving the car, but this does not eliminate the threatening nature of his own behavior while riding in the car. S.J.N-K.’s instigation of events and his continued use of vulgarisms when the driver pursued Kindle is sufficient to sustain the conviction.

      . "The extended middle finger [as an] insult is of ancient origin. Diogenes is reported to have insulted Demosthenes with it.” City of Oak Park, 262 N.W.2d at 902 n1 (citing Betty J. Bauml and Franz H. Bauml, A Dictionary of Gestures, 71 (1975)).


author: AMUNDSON, Justice.

text:
    2002 SD 68
    Daron WHITE EAGLE, as Special Administrator for the Estate of Darell Thomas White Eagle, Deceased, Plaintiff and Appellant, v. CITY OF FORT PIERRE, South Dakota, a Political Subdivision, as Employer, and Entity, and Kevin Steever, in his capacity as Chief of Police of Fort Pierre, jointly and severally and in their individual capacity, Defendants and Appellees.
    No. 21997.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2002.
    Decided June 12, 2002.

      Robin L. Zephier of Abourezk & Zephier, Rapid City, for appellant.
    Brent Wilbur of May, Adam, Gerd.es & Thompson, Pierre, for appellee Kevin Steever in his individual capacity.
    Thomas Harmon, Karla L. Engle of Ti-eszen Law Office, Pierre, for appellees City of Fort Pierre and Kevin Steever in his official capacity.
   AMUNDSON, Justice.

[¶ 1.] Daron White Eagle, special administrator for the estate of his father, Darrell Thomas White Eagle, (White Eagle) sued the City of Fort Pierre, South Dakota (City), Kevin Steever in his capacity as the former chief; of police in City (Steever (officially)), and Steever individually (Steever (individually)), alleging the defendants negligently or intentionally caused the death of his father. The trial court dismissed with prejudice the claims against Steever and City for failure ■ to prosecute. White Eagle appeals. We affirm.

FACTS

[¶2.] In June of 1997, White Eagle filed a complaint against City, Steever (officially) and Steever (individually), alleging that City and Steever either negligently or intentionally caused the death of his father. City then filed a motion to dismiss on the grounds that service of process had been improper; the trial court denied the motion. Thereafter, City filed an intermediate appeal, which was heard and decided by this Court in White Eagle v. City of Fort Pierre, 2000 SD 34, 606 N.W.2d 926 (White Eagle I). In White Eagle I, we held that the trial court erred in denying the motion and that it had no jurisdiction over City. Id. at ¶ 14. The remaining claims were then remanded to the trial court on March 8, 2000.

[¶-3.] There was no record activity after the remand until March 23, 2001, when Steever (individually) filed a motion to dismiss for failure to prosecute. Shortly after Steever (individually) made this motion, City and Steever (officially), also moved to dismiss for failure to prosecute. After a hearing on the motions, the trial judge granted Defendants’/Appellees’ motions to dismiss, with prejudice. White Eagle appeals the following issue:

Whether the trial court erred by granting the motions to dismiss for failure to prosecute.

STANDARD OF REVIEW

[¶ 4.] We have previously determined that the appropriate standard of review for a trial 'court’s dismissal of a claim for failure to prosecute is abuse of discretion. London v. Adams, 1998 SD 41, ¶ 12, 578 N.W.2d 145, 148. Under this standard, we uphold the decision if “in view of the law and the circumstances” it was reasonably made. Id. (citation omitted). The decision to dismiss will not stand if it is “not justified by, and clearly against, reason and evidence.” Id. Additionally, the following “guiding principles of law” assist our review:

First, this Court ordinarily will- not' interfere with the trial court’s ruling in these matters. Second, a dismissal of an action for failure to prosecute is an extreme remedy and should be used only when there is an unreasonable and unexplained delay. An unreasonable and unexplained delay has been defined as an omission to do something “which the party might do and might reasonably be expected to do towards vindication or enforcement of his rights.” Third, the mere passage of time is not the proper test to determine whether the delay in prosecution warrants dismissal. Fourth, the plaintiff has the burden to proceed with the action. The defendant need only meet the plaintiff step by step. Finally, the dismissal of the cause of action for failure to prosecute should be granted when, after considering all the facts and circumstances of the case, the plaintiff can be charged with lack of due diligence in failing to proceed with reasonable promptitude.

Id. (internal citations omitted).

DECISION

Whether the trial court erred by granting the motions to dismiss for failure to prosecute.

[¶ 5.] White Eagle contends that this case had been hard fought and litigated since 1995. After a hearing, the trial court said, as to Steever, there had been no activity other than filing an answer in 1997. As to City, the trial court determined there had been no activity since the remand by this Court on March 8, 2000. Therefore, the claims against Steever (individually) and against City and Steever (officially) were dismissed under SDCL 15-11-11 and SDCL 15-30-16, respectively,

[¶ 6.] In 1998, SDCL 15-11-11 was amended in an attempt to define what the Legislature meant by the term “record.” The following language was added:

[t]he term “record,” for purposes of establishing good cause, shall include, but not by way of limitation, settlement negotiations between the parties or their counsel, formal or informal discovery proceedings, the exchange of any pleadings, and written evidence of agreements between the parties or counsels which justifiably result in delays in prosecution.

See Swenson v. Sanborn County Farmers Union Oil Co., 594 N.W.2d 339, 1999 SD 61, ¶ 13 n3, 594 N.W.2d 339, 343 n3. Before the Legislature added this language, we had stated that “activity” meant, “record activity.” Id. at ¶ 14 (citing) Annett v. Am. Honda Motor Co., Inc., 1996 SD 58, ¶ 19, 548 N.W.2d 798, 803; Dur-Al Mfg. Co. v. Sioux Falls Const. Co., 444 N.W.2d 55, 57 (S.D.1989) (Sabers, J., concurring); Holmoe v. Reuss, 403 N.W.2d 30, 32 (S.D.1987).

[¶ 7.] Although we have acknowledged that the Legislature provided additional language through the 1998 amendment, we have not had the opportunity to determine how it changes existing case law until now. See, e.g., Swenson, 1999 SD 61 at ¶ 13 n 3, 594 N.W.2d at 343 n3; Simpson v. C & R Supply, Inc., 1999 SD 117, ¶11, 598 N.W.2d 914, 917; Moore v. Michelin Tire Co., Inc., 1999 SD 152, ¶49, 603 N.W.2d 513, 525-26. Prior to the 1998 amendment, we rejected “informal discovery and settlement negotiations” as a form of “activity” based on the fact that the settled record did not contain proof of settlement attempts or discovery. Annett, 1996 SD 58, ¶ 18, 548 N.W.2d 798, 803. Our subsequent holding in Swenson then placed further emphasis on the need for “record activity,” or information reflected in the file or the settled record. 1999 SD 61 ¶ 14, 594 N.W.2d at 343.

[¶ 8.] The expansion of SDCL 15-11-11 does not change our previous holdings. Our' focus has always been . on whether proof of activity was presented. The activity alleged must be verifiable in the record before us,' regardless of whether the activity was in the form of formal motions or informal discovery. “SDCL 15-11-11 ‘has a one year limitation from the date of the last activity as reflected by the file.’ See Annett, 1996 SD 58 at ¶ 19, 548 N.W.2d at 803 (emphasis added).

[¶ 9.] White Eagle noted that he had been working on the case, and for example, had been utilizing the Freedom of Information Act to obtain information about the criminal investigation surrounding the death of White Eagle’s father. If this type of discovery is to be used as a means of showing “activity,” we cannot merely assume this is true; we need proof. The trial judge held that no activity had occurred, and nothing before us refutes that holding. We further note that the Freedom of Information Act does not appear to require a particularized form of requesting information, making it less likely that activity under the Act would be in the trial court’s records. Some cases state that requests for information were made under the Act by mailing a letter to a particular government agent, while others just reference generic “requests” for information, without explaining the method. Miller, 630 F.Supp. at 348 (stating the plaintiff asked for information under the Freedom of Information Act); Dept. of Interior v. Klamath Water Users Protective Assoc., 532 U.S. 1, 1, 121 S.Ct. 1060, 1064, 149 L.Ed.2d 87 (2001) (stating the defendant “filed a series of requests with the Bureau under the Freedom of Information Act”); Porter v. U.S. Dept. of Jus tice, 717 F.2d 787, 789 (3rd Cir.1983) (stating plaintiff “wrote to the FBI Freedom of Information Act Director requesting copies of any files kept on him and his wife.”) (emphasis added in citation parentheti-cals). If these types of requests were being made by White Eagle within the year prior to the motion to dismiss, he should have presented evidence to the court below demonstrating such activity. The record here fails to support such contentions.

[¶ 10.] A plaintiffs failure to proceed with a case for a year or more clearly gives a defendant grounds to move for failure to prosecute. See Simpson v. C & R Supply, Inc., 1999 SD 117, ¶ 12, 598 N.W.2d 914, 918; SDCL 15-11-11 (providing dismissals for failure to prosecute are justified if there has been no activity for one year and no showing of good cause which excuses the inactivity); SDCL 15-30-16 (permitting dismissal of cases where no proceedings have occurred within one year from date of a Supreme Court order unless good cause is shown). And, it is unquestionably the plaintiffs duty to ensure that the case proceeds; this duty should not be placed on the defendant. Dakota Cheese, Inc. v. Taylor, 525 N.W.2d 713, 715 (S.D.1995).

[¶ 11.] This Court cannot confirm that any activity occurred from the record provided. It was White Eagle’s duty to carry this case forward and to ensure verifiable activity existed to keep the case afloat. See Swenson, 1999 SD 61 at ¶ 10, 594 N.W.2d at 343. Permitting a case to remain idle for years without a single confirmable activity demonstrates a lack of diligence. Moreover, nothing in the record demonstrates “good cause” for denying the motion to dismiss. See id. at ¶ 15 (holding motion to dismiss under SDCL 15-11-11 may be denied if good cause is shown); Sears v. McKee, 326 N.W.2d 107, 108 (S.D.1982) (finding that a motion to dismiss under SDCL 15-30-16 may be denied if good cause is shown). “Good cause for delay requires ‘contact with the opposing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines.’ ” Dakota Cheese, Inc., 525 N.W.2d at 717 (emphasis in original). Nothing negates Defendants’ allegations that negligence and inattention were the reason for inactivity in this case, and the record is void of any requisite activity.

[¶ 12.] White Eagle also argues that under SDCL 15-30-16, the measuring date of record should be the date stamped on the letter of remittitur given to the circuit court clerk by this Court, rather than the date the decision was issued. He filed discovery papers with the circuit court on March 27, 2001, after the motion to dismiss was filed. Thus, it certainly appears that the only action of record was the result of action taken by the defendant to dismiss. Nonetheless, White Eagle argues the papers were filed less than one year from March 30, 2000, the filing date stamped on the remittitur statement from this Court. Therefore, White Eagle • argues that if the later date is used, the dismissal for failure to prosecute is , error because the one-year mark under the statute has not been met.

[¶ 13.] The applicable language from SDCL 15-30-16 is that where this Court has remanded a case, proceedings shall be had “within one year from the date of such order ... or in default thereof, the action shall be dismissed, unless upon good, cause shown the court shall otherwise order.” (emphasis added). We find the date of the “order” is the decision date placed on the opinion, not the file date stamped on the remittitur papers by the circuit court clerk.

[¶ 14.] First, a “decision,” by its very definition, is “[a] judgment, decree, or order pronounced by a court.” Black’s Law Dictionary 407 (6th ed.1990). Furthermore, the date on which this Court is said to have “decided” a case is the date of publication, the same day it is made available to the public, clearly giving notice to the trial court and parties as to our directive. In the somewhat dated, yet pertinent case of Root v. Sweeney, this Court said:

It requires no argument to demonstrate the mere' filing of the remittitur and record by the clerk does not constitute “further proceedings”.... The arrival and deposit of the papers in the office of the clerk of the circuit court certainly cannot be construed as a step taken by the court in determining the rights of the parties and issues involved.

17 S.D. 179, 95 N.W. 916, 917 (1903) (upholding order that sustained motion to dismiss for failure to prosecute). Although the filing of remittitur papers with the lower court is part of the process in remanding the case, the true “order” referenced in the statute is the decision. Therefore, we find the clock starts to run from the opinion’s decision date. Because the date of White Eagle I is March 8, 2000, and the date of the motion to dismiss by Steever (individually) and by City’s and Steever’s (officially) motions to dismiss were March 23, 2001 and -March 28, 2001, respectively, the one-year time limit had clearly expired.

[¶ 15.] We acknowledge that dismissing the case was “an extreme remedy [,] ” which should be utilized only if there is “unreasonable and unexplained delay.” London, 1998 SD 41 at ¶ 12, 578 N.W.2d at 148 (citation omitted). Here, there has been “an omission to do something ‘which the party might, do and might reasonably be expected to do towards vindication or enforcement of his rights,’ ” which is the very definition of unreasonable, unexplained delay. Id. (citation omitted). We, therefore, uphold the lower court’s decision to grant a motion to dismiss for failure to prosecute because, “in view of the law and the circumstances” it was reasonably made. Id.

[¶ 16.] We find any other issues raised on appeal to be without merit.

[¶ 17.] Affirmed.

[¶ 18.] GILBERTSON, Chief Justice, SABERS and KONENKAMP, Justice, and GORS, Acting Justice, concur.

[¶ 19.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . SDCL 15-11-11 provides:
      The court may dismiss any civil case for want of prosecution upon written notice to counsel of record where the record reflects that there has been no activity for one year, unless good cause is shown to the contrary. The term "record,” for purposes of establishing good cause, shall include, but not by way of limitation, settlement negotiations between the parties or their counsel, formal or informal discovery....

      . SDCL 15-30-16 provides:
      In every case on appeal, in which the Supreme Court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceedings had therein within one year from the date of such order in the Supreme Court, or in default thereof, the action shall be dismissed, unless upon good cause shown the court shall otherwise order.

      . The Freedom of Information Act, 5 USC 552, "governs the responsibilities of federal agencies in the disclosure of, access to, and content of their records concerning individuals, and gives individuals greater control over the gathering, dissemination, and accuracy of agency information about themselves.” Miller v. United States, 630 F.Supp. 347, 348 (E.D.N.Y.1986).

      . The only information available to us regarding White Eagle's requests under the Freedom of Information Act is requests made under the Act prior to White Eagle I.

      . The trial judge asked White Eagle's counsel at the hearing regarding the motion to dismiss for failure to prosecute the following questions: “Why didn't you contact the clerk’s office? Why didn't you file a motion to compel, a motion for scheduling hearing, anything, between the time that the Supreme Court issued its order until the time that the motion to dismiss was filed?” His only response was that he did not want to "step on the toes of any Court process to try to get this matter set on for scheduling without the Court being specifically involved.”

      . White Eagle I was decided, White Eagle never petitioned this Court for rehearing. Such a motion could have allowed him more time in which to proceed at the trial court level. See SDCL 15-25-3 (permitting petitions for rehearing on decisions); SDCL 15-30-16 (granting one year time limit trial court proceedings after remand from this Court).


author: MILLER, Retired Justice,

text:
    2002 SD 69
    Nicholas W. HANCOCK, Plaintiff and Appellant, v. WESTERN SOUTH DAKOTA JUVENILE SERVICES CENTER, Carla Leveque, Defendants and Appellees, and DeAnn Myers, Lori Lindblom and Jackson Nursing, Inc., Defendants.
    No. 22183.
    Supreme Court of South Dakota.
    Considered on Briefs April 23, 2002.
    Decided June 12, 2002.

      Steven M. Christensen of Christiansen & Frederickson, Deadwood, for appellant.
    James S. Nelson, Donald P. Knudsen of Gunderson, Palmer, Goodsell & Nelson, Rapid City, for appellees.
   MILLER, Retired Justice,

Acting By Appointment.

[¶ 1.] In this appeal we affirm the circuit court and hold that the “open courts” provision of the state constitution does not abolish sovereign immunity. Specifically, we hold that there is no constitutional violation by the statutes which, among other things, provide immunity for failure to provide sufficient personnel, programs, services and the like in a prison or correctional facility.

FACTS AND PROCEDURE

[¶ 2.] Nicholas Hancock, then age 17, was detained at the Western South Dakota Juvenile Services Center (Center) for stealing some music CDs from a car in Spearfish, South Dakota. He was taken into custody on March 20, 2000, and arrived at Genter on March 22 in good health.

[¶ 3.] Center, which is owned and operated by Pennington County, did not provide its own nursing staff. Rather, it contracted with Jackson Nursing, Inc., to provide nursing services for those detained at the facility.

[¶ 4.] The day after his arrival, Hancock became sick to his stomach and began vomiting. Nurse DeAnn Myers, an employee of Jackson Nursing, looked in on Hancock at 11:30 a.m., noted that he was vomiting, but did not check his vital signs. On March 24, Nurse Lori Lindblom, another employee of Jackson Nursing, looked in to confirm that Hancock was still vomiting, but she did not check his vital .signs, examine him or evaluate him. Hancock was not seen by a nurse on March 25 and was. denied permission to go to the hospital. .

[¶ 5.] At approximately 10:30 p.m. on March 25, Hancock was evaluated by a Center employee, who was also an emergency medical technician. Upon taking his vital signs; she immediately called Sherry Jackson, owner of Jackson Nursing, Inc., at home. Jackson directed that Hancock be taken to the Rapid City Regional Hospital emergency room. It was learned that his appendix had ruptured before his arrival. He immediately underwent surgery and remained in the hospital for seven days. He was discharged on April 1, but returned 13 days later when he again became very ill. Additional surgery was necessary to clean out the abscesses that had developed from the ruptured appendix.

[¶ 6.] The doctor informed Hancock and his mother that the second surgery was necessary to clean out the extensive infections that had developed from the appendix having ruptured before Hancock was taken to see a doctor. Two physicians testified by deposition that Hancock did not receive reasonable or adequate medical attention. Carla Leveque, Center’s administrator, acknowledged in her deposition testimony that the nurses had failed to follow Center’s established medical protocol.

[¶ 7.] Hancock sued Center, administrator Leveque, Jackson Nursing, Inc., and the individual nurses. He alleged, among other things, that the nurses negligently failed to follow Center’s medical protocol, which resulted in the two separate surgeries to correct the problem.

[¶ 8.] The trial court granted Defendants’ motion for summary judgment based on the statutory immunity provided in SDCL 3-21-8 and 3-21-9(5). Hancock appealed, raising the following issues:

1. Whether SDCL 3-21-8 and 3-21-9 unconstitutionally deny Hancock a remedy in violation of South Dakota’s “open courts” provision.
2. Whether SDCL 3-21-8 and 3-21-9 deny Hancock equal protection of the law under the United States and South, Dakota Constitutions,.

Of particular significance to our consideration herein, during the pendency of the appeal, the parties changed. Approximately six weeks after Appellant’s Brief was filed, the parties agreed that Jackson Nursing, Inc., and the individual nurses would be released from the appeal. The Court approved that release by order dated February 14, 2002. Therefore, Hancock’s appeal necessarily relates only to issues concerning Center and Leveque.

STANDARD OF REVIEW

[¶ 9.] Hancock argues that SDCL 3-21-8 and 3-21-9 are unconstitutional in that they deprive him access to the courts and equal protection of the law. We review constitutional questions de novo. Vilhauer v. Horsemens’ Sports, Inc., 1999 SD 93, ¶ 7, 598 N.W.2d 525, 527 (citations omitted).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether SDCL 3-21-8 and 3-21-9 unconstitutionally deny Hancock a remedy in violation of South Dakota’s “open courts” provision.

[¶ 11.] “There is a strong presumption that the laws enacted by the [Legislature are constitutional and the presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution.” Vilhauer, 1999 SD 93 at ¶ 16, 598 N.W.2d at 528 (citations omitted). Because the party challenging the constitutionality of a statute bears the burden of proof, Hancock must demonstrate, beyond a reasonable doubt, that SDCL 3-21-8 and 3-21-9 violate a state or federal constitutional provision. Id.

[¶ 12.] Article VI § 20 of the South Dakota Constitution provides: “All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.” This Court has repeatedly construed this “open courts” provision to;

[A]llow unhindered access to the courthouse by a person who had a valid cause of action based on existing statute or the common law, timely and properly brought, who then would be allowed to present their case to a human fact finder. In other words under those conditions, a litigant was guaranteed its day in court.

Wegleitner v. Sattler, 1998 SD 88, ¶ 33, 582 N.W.2d 688, 698. See also Cromwell v. Rapid City Police Dep’t, 2001 SD 100, ¶29, 632 N.W.2d 20, 27 (holding open courts provision precluded reassertion of sovereign immunity); Vilhauer, 1999 SD 93 at ¶ 17, 598 N.W.2d at 529 (holding statute does not provide complete immunity and therefore, does not violate “open courts” provision); Green v. Siegel, Barnett, & Schutz, 1996 SD 146, ¶26, 557 N.W.2d 396, 403 (holding statutes of limitations do not violate “open courts” provision); Kyllo v. Panzer, 535 N.W.2d 896, 903 (S.D.1995) (holding statutes unconstitutional as they place absolute ban on recovery).

[¶ 13.] While a litigant is guaranteed his day in court, such is only the case for legally cognizable causes of action. Green, 1996 SD 146 at ¶ 26, 557 N.W.2d at 403. Article VI § 3 forbids exclusion from the courtroom on the basis -of financial status, sex, race, color, or national origin. Vilhauer, 1999 SD 93 at ¶ 26, 598 N.W.2d at 532 (citations omitted). There is, however, “no basis for a. claim that Article] VI, § 20 could by itself become a sword to create a cause of action or become a shield to prohibit statutorily recognized barriers to recovery....” Wegleitner, 1998 SD 88 at ¶ 33, 582 N.W.2d at 698.

[¶ 14.] Lest it be unclear from our earlier decisions, we now specifically hold that the “open courts” provision of our constitution is in no manner an abolition of the settled principle -of sovereign immunity. Thus, Hancock cannot use the “open courts” provision to override an otherwise valid act of the Legislature.

[¶ 15.] “The [Legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not.” Green, 1996 SD 146 at ¶ 26, 557 N.W.2d at 403 (citation omitted). The statutory immunity provided in SDCL Chapter 3-21 (and specifically sections 3-21-8 and 9) is essential to protect the public decision-making process. “Immunity is critical to the state’s evident public policy of allowing those in charge of jails to make discretionary decisions about prison administration without fear of tort .liability.” Webb v. Lawrence County, 144 F.3d 1131, 1140 (8th Cir.1998). See also Martinez v. California, 444 U.S. 277, 283 n6, 100 S.Ct. 553, 558, 62 L.Ed.2d 481, 487 (1980) (noting Legislature has broad powers to control government tort, liability ás it is essential to prevent a chilling effect on the deeision-making process in correctional facilities); B.W. v. Meade County, 534 N.W.2d 595, 597 (S.D.1995) (noting immunity is critical to protect the system of reporting and investigating child abuse without fear of reprisal). The open courts provision “does not prevent the [Legislature from changing the law which creates a right. Rather this section simply provides that if a right accrues under the law, the courts will be available to effectuate such right.” Wegleitner, 1998 SD 88 at ¶32, 582 N.W.2d at 698 (citation omitted).

[If 16.] We also note that SDCL 3-21-8 and 3-21-9 do not appear to provide an absolute bar to recovery. As the 8th Circuit recognized in Webb, an alternate remedy existed in filing a 42 USC § 1983 civil rights action. 144 F.3d at 1141. In fact, Hancock moved to amend his complaint to include a § 1983 claim, but then later withdrew his motion for reasons not evident in the record. Simply because the § 1983 action imposes a higher burden of proof, does not mean the action is not a viable remedy for the purposes of an “open courts” analysis. This Court has consistently upheld such restrictions. See Vilhauer, 1999 SD 93 at ¶ 22, 598 N.W.2d at 530 (citations omitted).

[¶ 17.] Hancock further argues that the discretionary/ministerial distinction applied by this Court in Kyllo also applies here. 535 N.W.2d at 901-02. He asserts that the nurses were performing merely ministerial duties by following the prescribed course of conduct in Center’s medical protocol. He maintains that, in failing to follow that protocol, the nurses were not only negligent, they were unprotected by the immunity provided in SDCL 3-21-8 and 3-21-9. However, in light of the procedural posture of this case, this argument is inappropriate.

[¶ 18.] The discretionary/ministerial distinction was intended to hold an individual tortfeasor responsible for his other own negligence without compromising the sovereignty of the state. Id. “State employees are cloaked in sovereign immunity when performing discretionary acts because ‘such discretionary acts participate in the state’s sovereign policy-making power.’ ” Id. at 902 (quoting Ritter v. Johnson, 465 N.W.2d 196, 198 (S.D.1991)). Conversely, “a state employee who ‘fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such a duty.’ ” Id. (quoting Nat’l Bank of S.D. v. Leir, 325 N.W.2d 845, 848 (S.D. 1982)) (additional citations omitted). Thus, this distinction is only appropriate in arguing that an individual actor is liable, despite his or her status as a government employee.

[¶ 19.] Here, the individual nurses and Jackson Nursing, Inc., are private health care providers that contract with the county to provide services at a publicly owned detention facility. Given the procedural posture of this case, we need not decide whether they are to be considered state/public employees for the purpose of immunity under SDCL ,3-21-8 and 3-21-9. Neither are we required to determine whether treating Hancock, in light of Center’s medical protocol, was a ministerial duty. The issue of’whether the nurses negligently failed to perform their duties, ministerial or otherwise, is not properly before us as they aré no longer party to this action. Hancock does not argue that Leveque (the only other individual involved in this appeal) negligently failed to follow the medical protocol. ' It would appear that she is being sued in her capacity as - administrator of Center in failing to properly supervise the nurses. Improper treatment of Hancock 'in non-compliance with Center’s medical protocol is the basis of Hancock’s discretionary/ministerial argument. Negligent supervisión is not. Therefore, the distinction in Kyllo is not applicable’to this appeal.

[¶ 20.] 2. Whether SDCL 3-21-8 and 3-21-9 deny Hancock equal protection of the law under the United States and South Dakota Constitutions.

[¶ 21.] Hancock claims that SDCL 3-21-8 and 3-21-9 deprive detainees of equal protection of the laws because the statutes preclude them from suing private medical providers for negligence or malpractice. He alleges that the statutes “create a class of persons [which is] not entitled to receive health care [that] meets a standard of reasonable and ordinary care.” Because Jackson Nursing, Inc., and the individual nurses are no longer part of this action, we find this issue moot.

' [¶22.] Affirmed.

[¶ 23.] GILBERTSON, Chief Justice, and AMUNDSON, KONENKAMP, and ZINTER, Justices, concur.

[¶ 24.] MILLER; Retired Justice, • Acting by Appointment, sitting for SABERS, Justice, disqualified.

      . Interestingly, Appellant did not amend its brief or file a reply brief. The foregoing procedural history was garnered though this Court's review of the record.

      . SDCL 3-21-8 provides:
      No person, political subdivision or the state is liable for failure to provide a prison, jail or penal or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel, programs, facilities or services in a prison or other correctional facility.
      SDCL 3-21-9 provides:

        No person, political subdivision or the state is liable for any injury resulting from the parole or release of a prisoner or from the terms and conditions of his parole or release or from the revocation of his parole or release, or for any injury caused by or resulting from:
      (1) an escaping or escaped prisoner;
      (2) an escaping or escaped person;
      (3) a person resisting arrest;
      (4) a prisoner to any other prisoner; or
      (5) services or programs administered by or on behalf of the prison, jail or correctional facility.

      . Under 42 USC § 1983, Hancock would be required to prove that Defendants were deliberately indifferent to his welfare.

      . Hancock's equal protection argument is inappropriately directed at the application of these statutes to preclude law suits against the nursing defendants. ' First, Hancock states that the statutes, "if construed to grant absolute immunity to private health care providers who contract to provide services to detention facilities, violate the right of individuals in jails or detention facilities to equal protection of the laws.” (emphasis in original). This implies that if immunity were not extended to the private providers, Hancock would have no equal protection claim. Hancock goes on to note "Any other citizen of the state has a right to bring a claim for injuries as .a result of medical negligence or malpractice.” They do not, however, have a right to bring a claim against the State, only against private medical providers. In challenging the trial court's reliance on Martinez, Hancock states, "the relationship between [his] injuries and the negligence of Jackson Nursing and its employees is ... a far cry from the attenuated nexus between a parole board's decision to release an inmate and a subsequent criminal act by that inmate....” See Martinez, 444 U.S. at, 282-83, 100 S.Ct. at 557-58, 62 L.Ed.2d at 487-88. Hancock also raises the discretionaiy/ministerial distinction again in relation to "[t]he errors and omissions of the Jackson nursing employees.” Finally, Hancock points out “the obvious fact Martinez involved government officials[,] while this case involves the private sector acting as contractors[,] presents a significant distinction.” Nowhere does Hancock argue that the application of these statutes with respect to Center and Leveque would violate Hancock’s equal protection rights. Thus, it is clear that this argument was meant only to challenge the application of the statutes to preclude a lawsuit against Jackson Nursing, Inc., and its employees.