author: SABERS, Justice. ZINTER, Justice

text:
    2005 SD 81
    Robert BENDER, Plaintiff and Appellant, v. DAKOTA RESORTS MANAGEMENT GROUP, INC., d/b/a Deer Mountain Ski Area, Defendant and Appellee.
    No. 23441.
    Supreme Court of South Dakota.
    Considered on Briefs May 23, 2005.
    Decided June 29, 2005.

      Michael J. Simpson of Julius & Simpson, LLP, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Matthew J. Kinney, Kinney Law Office, Spearfish, South Dakota, Attorney for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Robert Bender (Bender) worked as a ski lift operator at Deer Mountain Ski Area, located near Lead, South Dakota. Bender was injured while skiing during one of his breaks and sought compensation for his injuries from his employer. The circuit court found in favor of the employer, holding that the skiing injury sustained by Bender did not arise out of and in the course of his employment. Bender appeals and we reverse and remand.

Facts

[¶ 2.] Robert Bender was employed as a ski lift operator for Dakota Resorts Management Group, Inc., doing business as Deer Mountain Ski Area (Deer Mountain). Deer Mountain’s policy was that lift operators would receive one fifteen minute break in the morning, a half hour for lunch, and a fifteen minute break in the afternoon. Because lift operators work outside on the ski slope, they were not required to “clock out” during their breaks. It was common for lift operators, as well as other employees, to take ski runs on their breaks.

[¶ 3.] On December 14, ,2002, Bender asked his supervisor, Matthew Eddy (Eddy), if he could take a ski run during his afternoon break. Eddy consented and temporarily took over his duties while Bender completed the ski run. As Bender skied down the hill, he saw a skier ahead of him fall. As Bender approached the fallen skier, he turned his head to ask if he was alright. When he did so, Bender hit a dip in the terrain and fell, injuring his shoulder.

[¶ 4.] At the time of the accident, Deer Mountain did not have workers’ compensation insurance so Bender brought this action under SDCL 62-3-11. The circuit court found in favor of the employer, holding that the skiing injury sustained by Bender did not arise out of and in the course of his employment. Bender appeals, claiming his injury arose out of and in the course of employment.

Standard of Review

[¶ 5.] Our standard of review on factual issues is clearly erroneous, meaning we will reverse only if we are “definitely and firmly convinced a mistake has been committed.” Mudlin v. Hills Materials Co., 2005 SD 64, ¶ 5, 698 N.W.2d 67 (citing Norton v. Deuel School District, 2004 SD 6, ¶ 5, 674 N.W.2d 518, 520). However, “we review findings based on deposition testimony and documentary evidence under a de novo' standard of review.” Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶ 7, 619 N.W.2d 260, 262 (quoting Wagaman v. Sioux Falls Construction, 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240). Questions of law are also reviewed under the de novo standard. Mudlin, 2005 SD 64, ¶ 5, 698 N.W.2d at 71 (citing Norton, 2004 SD 6, ¶ 5, 674 N.W.2d at 520).

[¶ 6.] Whether Bender’s injury arose out of and in the course of employment.

[¶ 7.] To recover under workers’ compensation, a claimant must prove by a preponderance of the evidence that he sustained an injury “arising out of and in the course of the employment.” SDCL 62-1-1(7); Mudlin, 2005 SD 64, ¶ 7, 698 N.W.2d at 71. The claimant must prove that “the employment or employment-related activities are a major contributing cause of the condition complained of.” SDCL 62-1-1(7)(a).

[¶ 8.] We construe' the phrase “arising out of and in the course of employment” liberally. Mudlin, 2005 SD 64, ¶ 8, 698 N.W.2d at 71. Therefore, application of the workers’ compensation statutes is not limited solely to the times when the employee is engaged in the work that he was hired to perform. Id.

[¶ 9.] Both factors of the analysis, “arising out of’ employment and “in the course of employment,” must be present in all claims for workers’ compensation. Id. ¶ 9. However, while each factor must be analyzed independently, they are part of the general inquiry of whether the injury or condition complained of is connected to the employment. Id. Therefore, the factors are prone to some interplay and “deficiencies in the strength of one factor are sometimes allowed to be made up by strength- in the other.” Id. (quoting 2 Arthur Larson, Larson’s Workers’ Compensation Law, § 29, 29-1 (1999)).

[¶ 10.] In order for an injury to “arise out of’ the employment, the employee must show that there is a “causal connection between the injury and the employment.” Id. ¶ 11 (quoting Canal Insurance Co. v. Abraham, 1999 SD 90, ¶ 12, 598 N.W.2d 512, 516). The employment need not be the direct or the proximate cause of the injury, rather it is sufficient if “the accident had its origin in the hazard to which the employment exposed the employee while doing [her] work.” Id. (quoting Canal Insurance Co., 1999 SD 90, ¶ 12, 598 N.W.2d at 516). The injury “arose out of’ the employment if: 1) the employment contributes to causing the injury; 2) the activity is one in which the employee might reasonably engage; or 3) the activity brings about the disability upon which compensation is based. Id. (citing Grauel, 2000 SD 145, ¶ 12, 619 N.W.2d at 263).

[¶ 11.] “This Court has made it clear that the words % the course of employment’ refer to the time, place and circumstances of the injury.” Bearshield v. City of Gregory, 278 N.W.2d 166, 168 (S.D.1979). An employee is considered within his course of employment “if he is doing something that is either naturally or incidentally related to his employment or which he is either expressly or impliedly authorized to do by the contract or nature of the employment.” Id. See also Mudlin, 2005 SD 64, ¶ 15, 698 N.W.2d at 73; Steinberg v. South Dakota Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 21, 607 N.W.2d 596, 603.

[¶ 12.] It has also been recognized that when an employee is injured while engaging in recreational or social activities on the employer’s premises on a scheduled break, the injury arises out of and in the course of employment as long as the activity is a “regular incident of the employment.” 2 Arthur Larson, Larson’s Workers’ Compensation Law, § 22.01, 22-2 (1999). Professor Larson’s treatise, which is often cited by this Court in workers’ compensation cases, provides:

Recreational or social activities are within the course of employment when
(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

Id. (emphasis added). According to Larson’s treatise, if any of these three links to employment are met, compensation should be awarded. Id. at 22-7 to 22-8.

[¶ 13.] Professor Larson defines “regular incident of the employment” when “the activity is an accepted and normal one.” Id. at 22-6. The recreational activity also “must be shown to have achieved some standing as a custom or practice either in the industry generally or in this particular place” in order for the activity to become an incident of employment. Id. at 22-8. Professor Larson further explains that:

Put negatively, this means that the course of employment does not embrace every spontaneous or unprecedented frolic that might be undertaken on the premises.
At what point the innovation becomes a fixture of the employment is the kind of question that does not lend itself to a precise formula; it has been suggested that it should be at least long enough for a reasonable employer to become aware of it.

Id.

[¶ 14.] Although we have not previously addressed a case involving recreational or social activities occurring on the premises during a scheduled break, in Piper v. Neighborhood Youth Corps, we held that “an injury may be compensable under the Workmen’s Compensation Law even though it occurs during a lunch hour period.” 90 S.D. 443, 446, 241 N.W.2d 868, 869 (1976). In that case, an employee fell asleep on a beached raft during his lunch break. The raft drifted out into the lake and the employee drowned attempting to swim back to shore. We found that even though the employer had warned the employee not to go swimming, the employer might reasonably expect employees to rest and relax on the raft. Id. at 447, 241 N.W.2d at 870.

[¶ 15.] At least one other jurisdiction has addressed a situation factually similar to that presented here. In Grather v. Gables Inn, Ltd., the claimant was employed as a “ski bum” and was injured while skiing. 170 Vt. 377, 751 A.2d 762, 764 (2000). As a “ski bum,” the claimant’s main duties were to serve breakfast to the employer’s customers in the mornings and dinner in the late afternoons. The job was designed to leave time free to ski between late morning and late afternoon. The “ski bum” also received a ski pass as part of the compensation package. Id. Relying in part on § 22.01(3) of Professor Larson’s treatise, the Vermont Supreme Court held that since the employer was providing a recreational opportunity (i.e., skiing) as an inducement to attract employees, the employer received “a benefit sufficient to bring the claimant’s skiing within the course of his employment.” Id. at 764-65.

[¶ 16.] Here, Deer Mountain was in the business of providing winter recreational opportunities to its customers, namely snow skiing and snowboarding. One of the benefits or perks afforded to Deer Mountain employees was the opportunity to partake in these recreational activities. Employees received free season passes, oftentimes stored their ski and snowboard equipment at the facility, and skied and snowboarded during their scheduled work breaks. Both Eddy and Randy O’Neill, who was the general manager/owner of Deer Mountain, testified they were aware of employees skiing and snowboarding during their work breaks and that they never told any of their employees that they could not do so. The testimony also indicates that employees skied and snowboarded during their scheduled work breaks on a regular basis.

[¶ 17.] Since Deer Mountain management allowed employees to ski or snowboard during their work breaks and the ability to do so was considered by employees as a benefit or perk to working at Deer Mountain, this activity was “impliedly authorized” by the “nature of the employment.” Mudlin, 2005 SD 64, ¶ 15, 698 N.W.2d at 73. In fact, in this case, the activity was expressly authorized by Bender’s supervisor, Eddy. This was a common and accepted practice at Deer Mountain and a “regular incident of the employment.” See 2 Arthur Larson, Larson’s Workers’ Compensation Law, § 22.01(1), 22-2 (1999). In addition, Deer Mountain derived a “substantial direct benefit from the activity” in that the opportunity to ski and snowboard during work breaks was an inducement to attract employees. See Id. § 22.01(3). Therefore, the injuries that Bender sustained while skiing on his scheduled work break arose out of and in the course of his employment.

[¶ 18.] Deer Mountain argues that Norton v. Deuel School District requires us to hold that Bender’s injuries did not arise out of and in the course of the employment. 2004 SD 6, 674 N.W.2d 518. However, Norton is distinguishable. In Norton, the claimant was a full-time school bus driver who was transporting students on an extra-curricular ski trip. The school bus driver was offered and accepted a free, extra lift ticket and was injured while skiing. Id. ¶ 2. On appeal, we held that the school bus driver “stepped aside” from her employment purpose when she went skiing. Id. ¶ 22. Unlike here, the employee in Norton failed to establish that skiing was an activity in which she might reasonably be expected to engage or that the activity was expressly or impliedly authorized by the contract or nature of her employment. Id. Furthermore, there was no showing that the employee’s act of skiing was a “regular incident of the employment.” See 2 Arthur Larson, Larson’s Workers’ Compensation Law, § 22.01, 22-2 (1999). Therefore, our holding in Norton is not controlling here.

[¶ 19.] Based on the above, the injuries arose out of and in the course of the employment and we reverse and remand.

[¶ 20.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 21.] ZINTER, Justice, concurs specially.

ZINTER, Justice

(concurring specially).

[¶ 22.] The development of the law in the area of recreational activities is remarkable. I concur specially because in this case the employer specifically approved the recreational activity, it was a regularly practiced incident of employment, and it occurred on the employer’s premises. All of these requirements are crucial to establishing a work connection, and the last requirement is most important. As Professor Larson explains:

It has been repeatedly and consistently observed that in borderline eourse-of-employment situations, such as going and coming, or having lunch, the presence of the activity on the premises is of great importance. Consistency is maintained by applying the same distinction to recreation cases: recreational injuries during the noon hour on the premises have been held compensable in the majority of cases. While, as noted in connection with the other situations mentioned, there is a tinge of the arbitrary about this distinction, there is also a sound basis in both theory and reality for it. When seeking for a link by which to connect an activity with the employment, one has gone a long way as soon as one has placed the activity physically in contact with the employment environment, and even further when one has associated the time of the activity somehow with the employment. This done, the exact nature and purpose of the activity itself does not have to bear the whole load of establishing work connection, and consequently the employment-connection of that nature and purpose does not have to be as conspicuous as it otherwise might. Conversely, if the recreational activity takes place on some distant vacant lot, several hours after the day’s work has ceased, some independently convincing association with the employment must be built up to overcome the initial presumption of disassociation with the employment established by the time and place factors.

2 Arthur Larson, Larson’s Workers’ Compensation Law § 22.03[1], 22-5 (2001) (footnote omitted).

      . Matthew Eddy, Bender’s supervisor, testified that it was a common practice for lift operators and other employees to take ski runs during their breaks. In fact, he stated that on occasion he would also take ski runs during his work breaks. He testified that this was considered by the employees as one of the benefits or perks to working at Deer Mountain.

      . SDCL 62-3-11 provides:
      Any employee, who is employed by an employer who is deemed not to operate under this title in accordance with § 62-5-7, or the dependents of such deceased employee, may elect to proceed against the employer in any action at law to recover damages for personal injury or death; or may elect to proceed against the employer in circuit court under the provisions of this title, as if the employer had elected to operate thereunder by complying with §§ 62-5-1 to 62-5-5, inclusive, and the measure of benefits shall be that provided by § 62-4-1 plus twice the amount of other compensation allowable under this title; provided that such employee or his dependents shall not recover from both actions.

      . See South Dakota Public Entity Pool For Liability v. Winger, 1997 SD 77, ¶ 15, 566 N.W.2d 125, 130 (citing Larson’s explanation of the "dual purpose doctrine”); Benson v. Goble, 1999 SD 38, ¶ 18, 593 N.W.2d 402, 406 (citing Larson’s treatise regarding an employer's liability when a supervisor commits an assault); Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 33, 606 N.W.2d 919, 925 (citing Larson’s treatise concerning the provision of notice to an employer of a workers’ compensation claim); Steinberg v. South Dakota Department of Military & Veteran’s Affairs, 2000 SD 36, ¶¶ 15, 25, 607 N.W.2d 596, 602-05 (citing Larson's treatise concerning questions of whether claimant’s injury was a major contributing cause of her condition and whether her injury arose out of her employment); Fryer v. Kranz, 2000 SD 125, ¶¶ 8-11, 616 N.W.2d 102, 105-06 (citing Larson's treatise concerning the intentional tort exception to workers’ compensation coverage); Truck Ins. Exchange v. CNA, 2001 SD 46, ¶ 28, 624 N.W.2d 705, 710-11 (citing Larson's treatise concerning successive carrier responsibility in recurrence/aggravation disputes); Hagemann, ex rel. Estate of Hagemann v. NJS Engineering, Inc., 2001 SD 102, ¶ 6, 632 N.W.2d 840, 844 (citing Larson's treatise concerning liability of co-employee as joint tortfeasor); Homestake Mining Co. v. South Dakota Subsequent Injury Fund, 2002 SD 46, ¶ 29, 644 N.W.2d 612, 620 (citing Larson’s treatise concerning statutory amendments changing workers’ compensation limitations periods); Norton v. Deuel School District, 2004 SD 6, ¶ 11, 674 N.W.2d 518, 521 (citing Larson’s treatise concerning legal standards for arising out of and in the course of employment).

      . Eddy testified as to the reason why employees like Bender would ski during their work breaks:
      Q: During one of these breaks, why would a lift operator take a[ski] run?
      A: The only reason usually sometimes why an employee works for 5.50 an hour and freezes outside at zero to 20-degree temperatures for eight hours is not because they are trying to make a career, it’s because they love to ski or to snow board.

      . When asked about how often employees would either ski or snowboard on their work breaks, Eddy stated that it would happen "almost every day.”


source: Caselaw Access Project

author: GILBERTSON, Chief Justice and SABERS, Justice. KONENKAMP, Justice

license: Public Domain

text:
    2005 SD 84
    Alfred BONE SHIRT, Belva Black Lance, Bonnie High Bull and Germaine Moves Camp, Respondents, v. Joyce HAZELTINE, in her official capacity as Secretary of the State of South Dakota, Scott Eccarius, in his official capacity as Speaker of the South Dakota House of Representatives, South Dakota House of Representatives, Arnold Brown, in his official capacity as President of the South Dakota Senate, and South Dakota Senate, Petitioners.
    No. 23507.
    Supreme Court of South Dakota.
    Argued March 21, 2005.
    Decided June 29, 2005.

      Patrick Duffy of Duffy & Duffy, Rapid City, South Dakota, Bryan L. Sells of American Civil Liberties Union Foundation, Atlanta, Georgia, Attorneys for respondents.
    Lawrence E. Long, Attorney General, John P. Guhin, Sherri Sundem Wald, Assistant Attorneys General, Pierre, South Dakota, Attorneys for petitioners.
   GILBERTSON, Chief Justice and SABERS, Justice.

[¶ 1.] Pursuant to SDCL 15-24A-1 United States District Judge Karen E. Schreier of the District of South Dakota certified the following question to this Court:

Is the South Dakota Legislature authorized under Article III, Section 5 of the South Dakota Constitution, to reapportion Districts 26 and 27 and other affected areas in response to the federal district court finding a violation of Section 2 of the Voting Rights Act of 1965?

Wé answer the question in the affirmative.

FACTS

[¶ 2.] Article III, Section 5 of the South Dakota Constitution mandates that the Legislature apportion its membership every ten years after 1991. Pursuant to this provision the Legislature undertook the redistrieting process following the 2000 census. Following redistricting committee hearings, the Legislature at a special session adopted the 2001 plan which the governor signed on November 1, 2001. Bone Shirt v. Hazeltine, 336 F.Supp.2d 976, 983 (D.S.D.2004).

[¶ 3.] Two Native American residents of Todd County in District 27 and two Native American residents in Bennett and Jackson Counties in District 26 brought suit in the United States District Court against the South Dakota Secretary of State, the Speaker of the House of Representatives, the President of the Senate, and the two houses of the South Dakota Legislature. The plaintiffs in the district court alleged that South Dakota’s 2001 legislative redistricting plan violated their rights under Sections 2 and 5 of the Voting Rights Act of 1965. Bone Shirt, 336 F.Supp.2d at 980.

[¶ 4.] A three judge panel held that defendants violated Section 5 by failing to preclear the 2001 legislative redistricting plan. Id. 336 F.Supp.2d at 980. Following a court trial, the United States District Court further held

[T]hat under the totality of the circumstances, the South Dakota 2001 Plan results in unequal electoral opportunity for Indian voters. The court finds that plaintiffs have satisfied three Gingles factors and that the totality of the circumstances evidence that Indians in Districts 26 and 27 have been denied an equal opportunity to access the political process. The current legislative Plan impermissibly dilutes the Indian vote and violates § 2 of the Voting Rights Act. Defendants must afford Indians in both Districts 26 and 27 a realistic and fair opportunity to elect their preferred candidates.

Id. 336 F.Supp.2d at 1052. The district court pointed out that state government should ordinarily have the opportunity to propose a remedy for a § 2 violation since “redistricting remains primarily in the domain of the states.” Id. 336 F.Supp.2d at 1053. Defendants were given forty-five days to file remedial proposals. Id. 336 F.Supp.2d at 1053.

[¶ 5.] In light of our decision in Emery v. Hunt, 2000 SD 97, 615 N.W.2d 590, a question arose as to whether the Legislature could constitutionally engage in legislative apportionment in a year other than a year after a decennial census. Because of his concern about the State’s ability to comply with the district court’s order to make remedial proposals while also complying with the constitutional mandate regarding legislative apportionment, Governor M. Michael Rounds requested an advisory opinion from this Court. We declined to answer this request because:

The Justices cannot render an advisory opinion on issues which may arise in the federal litigation. That would involve the Justices [ ] determining issues based on conditions that may or may not take place and which are outside the process of adjudication without giving the parties an opportunity to brief the issues and advocate a position.

Letter from Chief Justice David Gilbertson to Governor M. Michael Rounds, October 5,2004.

[¶ 6.] The state defendants then asked the district court to certify the question to this Court. The district court did so, noting:

Certification is within the federal court’s discretion. Perkins v. Clark Equipment Co., 823 F.2d 207, 209 (8thCir.1987). Certification is “appropriate when the state court’s construction of an uncertain state law could make resolution of federal constitutional questions unnecessary.” Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1463 (8thCir.1995). The South Dakota Supreme Court may answer questions of law certified to it “which may be determinative of the cause pending in the certifying court and[when] it appears ... that there is no controlling precedent in the decisions of the Supreme Court of [South Dakota].” SDCL 15-24A-1.
In the instant case, this court found that the state legislative districting plan of 2001 violates the Voting Rights Act of 1965 because minority voting rights are diluted. This court ordered defendants to file remedial proposals consistent with the opinion within 45' days. “ ‘When a federal court declares an existing apportionment scheme unconstitutional, it is therefore appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan.’ ” Williams v. City of Texarkana. Ark., 32 F.3d 1265, 1268 (8thCir1994)(quoting Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 2497, 57 L.Ed.2d 411 (1978)). The court must defer to a proposed plan adopted by the legislature, “unless the plan does not completely remedy the violation or the proposed plan itself constitutes a section two violation.” Williams, 32 F.3d at 1268. The district court must fashion a remedial plan if the state legislature does not propose a remedy. Id.
The Supreme Court of South Dakota has previously ruled that the plain language of Article III, Section 5, authorizes apportionment by the legislature only after a decennial census. In re Certification of a Question of Law, 615 N.W.2d 590 (S.D.2000) (Emery v. Hunt). The South Dakota Supreme Court has not had the opportunity, however, to address the question of whether the state legislature has the . power under the South Dakota- state constitution to reapportion after its 2001 decennial apportionment was found to violate federal law. If the state legislature has the power to reapportion and enacts a plan that completely remedies the violation without creating a new section two violation, such action may resolve the case pending before this court. Under these circumstances, the court finds it appropriate to certify a question of law to the South Dakota Supreme Court. The question proposed by defendants will be broadened, however, to include “other affected areas” in addition to Districts 26 and 27 because plaintiffs’ proposed remedial plans slightly impact adjacent legislative districts.

ISSUE

[¶ 7.] This Court filed an order accepting certification on January 20, 2005. Consequently this issue is properly before this Court:

Is the South Dakota Legislature authorized under Article III, Section 5 of the South Dakota Constitution, to reapportion Districts 26 and 27 and other affected areas in response to the federal district court finding a violation of Section 2 of the Voting Rights Act of 1965?

ANALYSIS

[¶ 8.] Two South Dakota cases are relevant to deciding the issue, before the Court. The first, decided in 1933, is In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295 (S.D.1933). The second, issued in 2000, is Emery v. Hunt, 2000 SD 97, 615 N.W.2d 590.

[¶ 9.] When In re Opinion of the Judges was before the Court, Article III, Section 5 of the South Dakota Constitution provided:

The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy. Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state.

The Twenty-Second Legislature which met in 1931 failed to comply with the mandate of § 5 and did not make the required apportionment. The question became whether the Twenty-Third Legislature meeting in 1933 had the authority to apportion or whether it was prohibited from doing so by the “but at no other time” language in Article III, Section 5.

[¶ 10.] This Court examined the constitutions of other states and found that most apportionment provisions had affirmative mandates for action at a specified time but, unlike South Dakota, no express prohibition of action at other times. Despite this, courts held “an affirmative mandate for legislative action at a specified time is an implied prohibition of action at any other time.” In re Opinion of the Judges, 61 S.D. at 111, 246 N.W. at 296. This Court found that no valid distinction could be based upon the South Dakota constitution’s express, rather than implied prohibition:

In all cases which we have been able to find upon the point where the Constitution affirmatively requires apportionment at a specific time (usually the first session after enumeration), it is held that such duty is mandatory upon the Legislature (though they are not com-pellable thereto by any court), and, notwithstanding the fact that there is an implied prohibition against so doing at any other time, such prohibition is conditioned upon the prior performance of the affirmative duty and does not come into operation until the duty mandator-ily imposed has been exercised. In other words, when a Legislature once makes an apportionment following an enumeration no Legislature can make another until after the next enumeration, but the duty to make the apportionment following the enumeration continues until performed even though the Legislature fails to perform such duty at the first session after the enumeration.

In re Opinion of the Judges, 61 S.D. at 111-112, 246 N.W. at 296-297. (emphasis added).

[¶ 11.] The Court also observed:

It seems quite apparent that the framers of the Constitution in providing for apportionment “at its first regular session, after each enumeration ... but at no other time,” meant to say only this and nothing more: That the Legislature should make an apportionment at the first session after an enumeration as affirmatively required by the Constitution, and having so done (as the Constitution makers assumed they would) they should not again exercise such power until after another enumeration.

The Court stressed, however, that the failure to perform the duty cannot cancel the legislative obligation:

“... that is to say, if the apportionment is not made in the first session after the return of the enumeration, the duty to make it devolves upon the Legislature then next sitting and upon each following Legislature until that duty is performed....” Botti v. McGovern (1922) 97 N.J.L. 353, 118 A. 107, 108.
“The duty is a continuing one, and, if it is not discharged at or within the time prescribed, the burden of its performance rests upon successive General Assemblies until the section has been obeyed.” Fergus v. Kinney (1928) 333 Ill. 437, 164 N.E. 665, 666.

Id., 61 S.D. at 113, 246 N.W. at 297.

[¶ 12.] Therefore the Court held that if the 1933 legislature passed an apportionment act, that act “will not in our opinion be open to successful attack upon the ground that the present session lacked constitutional power to deal with the subject matter of apportionment under section 5 of Article 3 of the Constitution of this state.” Id. 61 S.D. at 114, 246 N.W. at 297.

[¶ 13.] Since our 1933 decision in In re Opinion of the Judges, Article III, Section 5 has been amended three times. The 1982 initiated constitutional amendment repealed the existing Article III, Section 5 and replaced it with Article III, Section 5 as it reads now:

The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.

[¶ 14.] We examined this constitutional provision in Emery v. Hunt, supra. There, the 1991 Legislature performed its constitutional duty and enacted apportionment legislation following the 1990 census. No court found the legislation to be invalid or unconstitutional. The Legislature, however, was concerned about the constitutionality of the legislation in light of the United States Supreme Court’s decision in Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). It amended the 1991 legislation in 1996. We were asked to determine whether the 1996 amendment violated Article III, Section 5 which mandates apportionment in 1991 and every ten years thereafter. In a divided opinion, the majority of this Court concluded that “because the legislature did perform its constitutional duty when it enacted apportionment legislation in 1991 following the 1990 federal census, it lacked constitutional authority to make another apportionment until after the next federal census.” Emery v. Hunt, 2000 SD 97 at ¶ 8, 615 N.W.2d at 595. Justice Sabers and Justice Gilbertson dissented interpreting this constitutional provision to allow additional apportionments when the legislature deemed it appropriate.

[¶ 15.] The Emery Court also recognized that the 1982 amendment of Article III, Section 5 transferred the duty of apportionment, if not performed by the Legislature, to this Court. This duty:

is also mandated to be performed at a time certain. It may only be performed within ninety days after December first of 1991 and every ten years thereafter if the legislature fails to apportion its membership by the December first deadline.

Id., 2000 SD 97 at ¶ 12, 615 N.W.2d at 596. After the Court has performed its constitutional duty under Article III, Section 5, the Legislature is prohibited from taking further action until after the next federal census. Id., 2000 SD 97 at ¶ 15, 615 N.W.2d at 596.

[¶ 16.] The duty of the Legislature to apportion and this Court’s duty when the Legislature fails to act is the duty to enact a valid apportionment law, a point suggested in In re Opinion of the Judges, see fn 2, supra, and stressed by the majority in Emery v. Hunt:

It is the general rule that once a valid apportionment law is enacted no future act may be passed by the legislature until after the next regular apportionment period prescribed by the Constitution.

Emery v. Hunt, 2000 SD 97 at ¶ 10, 615 N.W.2d at 595 (quoting Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771, 779-80 (1963)). There is a strong presumption that laws enacted by the legislature are constitutional and valid. Cleveland v. BDL Enterprises, Inc., 2003 SD 54, ¶ 34, 663 N.W.2d 212, 221.

Since there is a presumption that laws passed by the legislature are valid and constitutional until judicially determined to be otherwise, the legislature will be powerless to lawfully reapportion until the next apportionment period, unless this court adjudges the present senate apportionment act to be invalid.

Harris v. Shanahan, 387 P.2d at 780. “An apportionment which is invalid, for whatever reason, is no apportionmentf.]” Mauzy v. Legislative Redistricting Board, 471 S.W.2d 570, 574 (Tex.1971).

[¶ 17.] The foregoing authority instructs ‘ that if the legislature fails to perform its constitutional duty to enact apportionment legislation by December 1 of the year in which apportionment is required, this Court has ninety days from the December 1 deadline to apportion. However, if the legislature apportions and that apportionment is judicially deemed invalid, the legislature continues to have the duty to enact a valid apportionmént plan. Where, as in Emery v. Hunt, supra, the legislature enacted apportionment legislation in 1991 and there had been no judicial determination of invalidity or unconstitutionality, a majority of this Court concluded the legislature had no authority to make another apportionment until after the next census. Where however, as in this case, a federal court has held that the apportionment is invalid, the legislature has the continuing obligation and duty to enact a valid plan. The ’ duty continues until performed.

[¶ 18.] Other jurisdictions with constitutional provisions similar to Article III, Section 5 have reached the same conclusions. In Yorty v. Anderson, 60 Cal.2d 312, 33 Cal.Rptr. 97, 384 P.2d 417 (1963) the California Supreme Court found that Article IV, Section 6 of its constitution vested the primary duty and power to apportion in the legislature. If the legislature enacted a reapportionment plan held invalid by judicial decision, the legislature, “under a reasonable construction of Section 6” had the opportunity to adopt a plan meeting the requirements of the federal constitution. Id., 33 Cal.Rptr. 97, 384 P.2d at 419. The purpose of the provision in Section 6 which created a Reapportionment Commission was to “provide an alternative method of reapportionment to be used only in the event of legislative inaction.” Id.

[¶ 19.] Article II, Section 35 of the North Dakota Constitution mandates that the legislature apportion at the first regular session after each decennial census. State v. Sathre, 113 N.W.2d 679 (N.D.1962). If the legislature fails to apportion, the duty falls on a group of state officials. The Thirty-Seventh Legislature took no action. The action taken by the group designated to apportion in the event the Legislature failed to do so was held to violate the constitutional mandate of apportionment according to the population of the districts and was, therefore, void. The court explained:

It was asserted on argument that should we hold that the action of the group was void, there could be no apportionment under Section 35 until after the next Federal Decennial Census. We do not so construe Section 35. While the power of the group to act on behalf of the Legislature expired at the end of the 90-day period, the duty imposed upon the Legislature to reapportion is a continuing one. State v. Cunningham, 81 Wis. 440, 51 N.W. 724, 15 LRA 561; Denney v. State, 144 Ind. 503, 42 N.E. 929, 31 LRA 726; People ex rel. Carter v. Rice, 135 N.Y. 473, 31 N.E. 921, 16 LRA 836; In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295.
In Jones v. Freeman, 193 Okl 554, 146 P.2d 564, it is said:
While the primary duty of apportioning the state rests upon the first Legislature elected after each Decennial Federal census, the duty is a continuing one and if the first Legislature fails to enact a valid law, the duty devolves upon each succeeding Legislature until it is performed. * * *
Once a valid law is enacted no further act may be passed by the Legislature until after the next Federal Decennial census.
We are of the opinion that the duty of the Legislature to apportion is mandatory and continues until it is performed.

Id., 113 N.W.2d at 687.

CONCLUSION

[¶ 20.] Article III, Section 5 of the South Dakota Constitution authorizes the South Dakota Legislature to reapportion Districts 26 and 27 and other affected areas in response to a federal district court’s finding a violation of Section 2 of the Voting Rights Act of 1965.

[¶ 21.] ZINTER and MEIERHENRY, Justices, concur.

[¶ 22.] KONENKAMP, Justice, concurs specially.

KONENKAMP, Justice

(concurring specially).

[¶ 23.] Five years ago, we held that the Legislature could not, on its own initiative, reapportion legislative districts other than at the times permitted by the South Dakota Constitution. Emery v. Hunt, 2000 SD 97, 615 N.W.2d 590. Like the case before us today, Emery answered a certified question put to us by the federal district court. We ruled that in enacting its 1996 redistricting plan “the Legislature acted beyond its constitutional limits.” Id. at ¶ 18, 615 N.W.2d at 597. We voided the 1996 plan, thus reinstating the preexisting 1991 plan.

[¶ 24.] Despite the decennial redistricting limitation in South Dakota’s Constitution, the co-authors of today’s lead opinion would permit the Legislature to reapportion voting districts at any time the Legislature deems another apportionment desirable. See their separate dissents in Emery, 2000 SD 97, ¶¶ 21-38, 615 N.W.2d at 597-604. This proposition is precisely what our ruling in Emery would not permit. In my view, however, our decision today does not alter our holding in Emery. Now the question before us is different.

[¶ 25.] We must decide whether the Legislature may reapportion in response to a court judgment that the existing apportionment is illegal. There is ample reason to conclude that once a redistricting plan is declared unlawful or unconstitutional, the Legislature can be required to forthwith enact a new plan in compliance with the law. This is true even if the reapportionment would take place outside the ten-year cycle dictated by our Constitution.

[¶ 26.] The danger that the Legislature could reapportion every few years for partisan motives is the reason the framers of our Constitution prohibited reapportionment more frequently than every ten years. That is why the redundant “at no other time” language was inserted in the original text. The framers feared that a politically dominant party could redistrict at will to suit its own self-serving ends. South Dakota Constitutional Convention Debates of 1885, vol 1, at 207. For similar reasons, most states operate on this same ten-year timetable. The United States Supreme Court has acknowledged that “[l]imitations on the frequency of reapportionment are justified by the need for stability and continuity in the organization of the legislative system.... ” Reynolds v. Sims, 377 U.S. 533, 583, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964).

[¶ 27.] On the other hand, once it is determined by a court that a legislative redistricting plan is invalid, equal protection demands a remedy. The preferred forum for a solution is usually the state. “[T]he Constitution leaves with the States primary responsibility for apportionment of their federal congressional and state legislative districts.” Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 1081, 122 L.Ed.2d 388 (1993) (citing US Const art I, § 2). The Supreme Court recognized that “[t]he power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States in such cases has been specifically encouraged.” Scott v. Germano, 381 U.S. 407, 409, 85 S.Ct. 1525, 1527, 14 L.Ed.2d 477 (1965) (citations omitted). Indeed, both “[r]eason and experience argue that courts empowered to invalidate an apportionment statute which transgresses constitutional mandates cannot be left without the means to order appropriate relief.” Terrazas v. Ramirez, 829 S.W.2d 712, 718 (Tex.1991).

[¶ 28.] The fact that the voters rejected an amendment in 2002 to empower the Legislature to reapportion if a state or federal court invalidated an apportionment is of no consequence. The courts always had the power to require such a reapportionment. Therefore, I would answer the district court’s question in the affirmative: the Legislature can reapportion Districts 26 and 27 under Article III, Section 5 of the South Dakota Constitution, but only because there is a court judgment finding the existing apportionment invalid.

      . The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, or a United States district court, if there are questions of law of this state involved in any proceeding before the certifying court which may be determinative of the cause pending in the certifying court and it appears to the certifying court and to the Supreme Court that there is no controlling precedent in the decisions of the Supreme Court of this state.

      . The opinion also suggested that the legislature's duty to apportion includes the duty to apportion validly. When the Seventh Legislature failed to apportion, the Eighth Legislature assumed the duty, and passed an apportionment measure, "the validity of which appears never to have been challenged[.]” Id. 61 S.D. at 114, 246 N.W. at 297.
      The Court was also asked if an apportionment act passed by the 1933 legislature would be a “valid” legislative apportionment. Id. at 61 S.D. at 114, 246 N.W. at 297. The Court declined to pass on the constitutionality and validity of a legislative act, the form and contents of which were entirely unknown. Id. 61 S.D. at 114, 246 N.W. at 297.

      . The 1935 proposed amendment was approved in 1936. It deleted the requirement for apportionment after a federal census, deleted a provision excluding Indians not taxed from the state enumeration, and added the provision for the named state officers to malte an apportionment when the legislature failed to do so. See 1935 SD SessL ch 136.
      The 1947 proposal, approved in 1948, deleted the provision for a state census, changed the time of reapportionment to 1951 and every tenth year thereafter, adopted the federal census as the basis of reapportionment and deleted a provision excluding soldiers and officers of the United States army and navy from the basis of apportionment. See 1947 SD SessL ch 250. Article III, Section 5 then provided:
      The Legislature shall apportion its membership in accordance with the last federal census prior to the Legislative Session at which such apportionment shall be made. Such apportionment shall be made by the regular session of the Legislature in 1951 and every ten years thereafter and at no other time. If any legislature whose duty it is to make an apportionment shall fail to make the same as herein provided that it shall be the duty of the Governor, Superintendent of Public Instruction, Presiding Judge of the Supreme Court, Attorney General and Secretary of State within thirty (30) days after the adjournment of the legislature to make such apportionment and when, so made a proclamation is issued by the Governor announcing such apportionment the same shall have the same force and effect as though made by the Legislature.

      . In the Attorney General's brief we were invited to re-examine the holding in Emery and overrule it based upon the historical analysis of the South Dakota Constitutional Debates authored by Justice Gilbertson in his dissent in Emery. At oral argument, however, the Attorney General conceded that it is not necessary to overrule Emery in deciding this case.
      Based on the narrow question certified to us by the district court, we also find it unnecessary to re-visit the holding in Emery. We leave that for another day. Emery dealt with a prior apportionment which all parties agreed was valid. Here we are answering a certified question which has as its premise the underlying apportionment to be invalid.

      . On November 5, 2002 the voters rejected Constitutional Amendment B, an amendment to Article III, Section 5. This amendment was titled "An amendment to Article III, Section 5 of the Constitution to clarify the responsibility of the legislature to provide for its own apportionment.” This proposal would have added the following sentence to Article III, Section 5:
      However, if any federal or state court invalidates, in whole or in part, an apportionment made by the legislature, the legislature, meeting in regular or special session, shall make a new apportionment as prescribed by federal and state constitutional and statutory law or court order.
      It would also have rewritten the fourth sentence of Article III, Section 5 to read:
      An apportionment shall be made by the legislature in 2001, and every ten years after 2001.
      The vote was 116,495 for and 187,242 against.
      In this case, "much has been made” of the failure of the 2002 amendment to Article III, Section 5. McIntyre v. Wick, 1996 SD 147, ¶ 19 fn. 5, 558 N.W.2d 347, 356 fn. 5. By its defeat the respondents in this case argue that the people of South Dakota made it irrefutably clear that their elected representatives in the legislature have no power to reapportion where, as in this case, a federal district court determines that the original apportionment is unconstitutional and, therefore, invalid. Rather, the power to reapportion rests with a single federal district judge. The State, however, contends that the failed amendment was offered to clarify the responsibility of the legislature to reapportion. Therefore, the State argues that the Legislature has the authority to act regardless of the adoption of the amendment.
      Where amendments are passed, it is often presumed that there was an intent to change existing law. State v. Schroeder, 2004 SD 21, ¶ 12, 674 N.W.2d 827, 831. “However, amendments can also clarify existing law." Id. While rejected constitutional amendments may be considered in determining the intent of the framers, Poppen v. Walker, 520 N.W.2d 238, 246 (S.D.1994), “it is difficult, however, to draw any conclusion as to the will of the people from the failure of [this] constitutional amendment.” McIntyre v. Wick, 1996 SD 147 at ¶ 19, fn. 5, 558 N.W.2d at 356, fn. 5. "Under our system of government, law is not made by defeating bills or proposed constitutional amendments.” State v. Public Employees Retirement Bd., 118 N.M. 507, 882 P.2d 548, 553 (N.M.Ct.App.1994). We are left with a decision by the voters which is similar to a general verdict by a jury. We know the end result but not the specifics of how tire decision-makers arrived at it. A constitutional amendment or revision “must be submitted to the voters and shall become a part of the Constitution only when approved by a majority of the votes cast thereon.” SDConst art XXIII § 3. Since the 1982 legislative amendment to Article III, Section 5, which passed, allows the Legislature to reapportion where a court determines its apportionment to be invalid, the failure of the proposed 2002 measure did not change that result.

      . In reviewing apportionment cases this Court considers cases from other states with similar constitutional provisions. In re Opinion of the Judges, 61 S.D. at 110-111, 246 N.W. at 296-297; Emery v. Hunt, 2000 SD 97 at ¶ 10, 615 N.W.2d at 595. With our shared heritage, North Dakota decisions shed light on our constitutional provisions. State v. Schwartz, 2004 SD 123, 689 N.W.2d 430. (Konenkamp, J., concurring in result).

      . See generally King v. Rhodes, 11 Ohio St.2d 95, 228 N.E.2d 653 (1967). Ohio's constitution places the power over legislative apportionment in an apportionment board.
      There is no question that the board has the authority to adopt the original decennial apportionment plan. It has not only the authority but the duty to do so. However, its duty is not confined to merely preparing a plan. The board's duty is to adopt a valid plan. Thus, having the authority to adopt the plan if for some reason the plan is determined to be a nullity it necessarily follows that the board has the implied duty to adopt a new plan which is valid. State ex rel. Herbert v. Bricker, supra, 139 Ohio St. 499, 41 N.E.2d 377.
      To hold otherwise would leave the state without an apportionment for legislative representation. There is no other body authorized to make such apportionment in Ohio.

        Id., 228 N.E.2d at 658-659.


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Tracye Jaymes KNIGHT, Appellant.
    No. 04-0473.
    Supreme Court of Iowa.
    July 1, 2005.

      Melissa A. Nine and Barry S. Kaplan of Kaplan & Frese, L.L.P., Marshalltown, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Thomas Goodhue, Student Legal Intern, and Jennifer Miller, County Attorney, for appellee.
   TERNUS, Justice.

After the defendant, Tracye Knight, entered an Alford plea to three criminal charges, the district court imposed consecutive prison sentences, citing as one reason the defendant’s lack of remorse. The court of appeals vacated the sentences, holding the district court had improperly considered Knight’s lack of remorse and failure to apologize for his conduct. This court granted further review. Because we conclude the district court’s reasons for imposing consecutive prison sentences were appropriate, we vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts and Proceedings.

Upon learning from a citizen that the citizen’s sixteen-year-old daughter had been having sex with the thirty-one-year-old defendant, the Marshalltown police department obtained and executed a search warrant for Knight’s apartment. The authorities found numerous photographs of young females participating in sex acts with the defendant and a journal detailing the defendant’s sexual relationships with minor girls. Knight’s computer also contained many digital images of the defendant engaged in sexual intercourse with minors. Videotapes of similar conduct were also discovered.

The defendant was charged with one count of third-degree sexual abuse, one count of lascivious acts with a child, and four counts of sexual exploitation of a minor. See Iowa Code §§ 709.1, 709.4, 709.8, 728.12 (2003). The ages of the victims ranged from thirteen to seventeen. Knight subsequently agreed to plead guilty to one count of lascivious acts with a child and two counts of sexual exploitation of a minor; the State agreed to dismiss the other charges.

At the plea hearing, Knight entered an Alford plea. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970) (holding “express admission of guilt ... is not a constitutional requisite to the imposition of [a] criminal penalty”). Under this procedure, “the defendant acknowledges the evidence strongly negates the defendant’s claim of innocence and enters [a guilty] plea to avoid a harsher sentence.” Comm. on Prof'l Ethics & Conduct v. Sturgeon, 487 N.W.2d 338, 340 (Iowa 1992). Thus, the defendant made no admission of his guilt at the plea proceeding.

At the later sentencing hearing, the State introduced evidence of the circumstances surrounding the crimes. This evidence showed that the defendant worked as a DJ at a local bowling alley, where he would meet vulnerable young girls. Promising to manage them in modeling or singing careers, he would lure them to his apartment for sex. Knight kept a journal in which he planned and documented his sexual conquests. This journal revealed that the defendant was fixated on having sex with minor girls. Based on this evidence, the State argued the defendant was a dangerous sexual predator, and he would continue this kind of activity if allowed to return to the community.

The defendant’s trial counsel responded by asserting that, while he understood the seriousness of the charges, “no physical harm per se was done to these young women.” The defendant’s attorney argued that Knight was not a vicious individual and had always treated the girls kindly. Defense counsel urged the court to place the defendant on probation with placement in a halfway house where the defendant could be rehabilitated. The defendant then addressed the court, noting his cooperation with the police, his steady employment, his stable residency, and the fact that he had kept himself out of trouble while the criminal charges were pending. Knight also informed the court that he took care of his seventy-one-year-old mother and that he had a “child on the way.” He asked for probation or placement at a residential facility.

In imposing sentence, the court stated that it would require a sentence that would provide for the defendant’s “maximum opportunity for rehabilitation and provide maximum protection to the community.” The court noted the defendant’s age, his prior felony conviction, his prior successful probation, his steady employment, his family circumstances, and his undisputed cooperation with the authorities. But in view of the nature of the offenses, the ages of the victims, and the premeditated manner in which the crimes were committed, the court expressed concern for the defendant’s ability to be rehabilitated. In addition, the court noted, the defendant had not shown any remorse: “There’s no apology. There’s no sign of remorse here whatsoever.” In light of these factors, the court sentenced the defendant to consecutive terms of incarceration.

Knight’s subsequent appeal was transferred to the court of appeals. That court ruled the district court had considered an improper sentencing factor, namely the defendant’s failure to apologize. The court of appeals stated that given the defendant’s Alford plea, it was axiomatic that the defendant would not apologize, and should not be required to apologize, for crimes he did not admit committing. Accordingly, the court of appeals vacated the defendant’s sentences. We granted the State’s application for further review.

II. Scope of Review.

A defendant’s sentence is generally within the discretion of the trial court. See State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998). But the use of an impermissible sentencing factor is an abuse of discretion and requires resentencing. See State v. Carrillo, 597 N.W.2d 497, 501 (Iowa 1999).

III. Discussion.

A. Issue presented for review. The defendant complains that the sentencing court used his “Alford plea and refusal to admit guilt or express remorse to enhance his sentence.” He contends it was “counterproductive to the theory that lies behind an Alford plea to require the defendant to express remorse or regret or to make an apology where he has not definitively stated he did in fact commit the crimes alleged.” The court of appeals, in its decision, agreed that it was improper to consider the defendant’s failure to apologize as a factor in sentencing. We are convinced after our review of the record that although the district court took into account Knight’s lack of remorse in determining his sentence, the court did not base its sentence on Knight’s Alford plea, his refusal to admit guilt, or his failure to apologize.

The full statement made by the sentencing court with respect to the defendant’s lack of remorse follows:

And as I listen to [you], your comments indicate one thing and that is a lack of remorse. You have done an excellent job pointing out certain factors which are important to the Court’s sentence, but other than your admission of guilt — which is perhaps a sign of remorse. At least you admitted that you were guilty of three offenses. There’s no apology. There’s no sign of remorse here whatsoever.

Later, in stating its reasons for imposing consecutive sentences, the court cited as one of four reasons, “Third, as I’ve indicated, there has been no remorse shown by you.”

It is apparent from the judge’s comments that the judge did not know that Knight had entered an Alford plea, as the court referenced Knight’s “admission of guilt” as “perhaps a sign of remorse.” (The sentencing judge had not presided at the plea hearing.) In addition, the court commented, “At least you admitted that you were guilty of three offenses.” Clearly, the court did not consider the defendant’s Alford plea or his refusal to admit guilt as a sentencing factor, as the court mistakenly believed the defendant had admitted his guilt earlier when he entered a guilty plea.

We also disagree with the defendant and the court of appeals that the sentencing court penalized Knight for not apologizing. In reading the court’s comments in their entirety, it is clear the court was concerned with the defendant’s lack of remorse and mentioned an apology as simply one way in which the defendant could have expressed remorse.

Thus, the issue in this case is simply whether a sentencing court may properly consider a defendant’s lack of remorse notwithstanding the fact the defendant has entered an Alford plea. In deciding this issue, we first determine whether a defendant’s lack of remorse is a proper sentencing factor under any circumstance. We will then address whether a defendant entering an Alford plea stands in any different position than other convicted defendants such that his lack of remorse should not be taken into account in determining a suitable sentence.

B. Permissible sentencing considerations. A court, in determining the proper sentence, must consider which sentence or combination of sentences “will provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others.” Iowa Code § 901.5. Some of the factors pertinent to this determination include the defendant’s character, his propensity to reoffend, and his chances for reform. See State v. Cooley, 587 N.W.2d 752, 754-55 (Iowa 1998).

While this court has never directly decided whether a sentencing court may consider a defendant’s lack of remorse, we have upheld sentences that were based in part on this factor. See State v. Evans, 671 N.W.2d 720, 727 (Iowa 2003) (holding sentencing court did not abuse its discretion in sentencing defendant where court cited several reasons for sentence, including the defendant’s lack of remorse); State v. Inger, 292 N.W.2d 119, 126 (Iowa 1980) (finding no abuse of discretion in imposing sentence, noting sentencing court considered nature of defendant’s criminal actions, defendant’s lack of remorse, and fact that victim died). Moreover, our court of appeals has held that a sentencing court properly considered “the defendant’s lack of remorse ... as influencing [the defendant’s] attitude about the incident,” which was relevant to the defendant’s need for rehabilitation. State v. Bragg, 388 N.W.2d 187, 192 (Iowa Ct.App.1986).

Appellate courts from other states have also held that a sentencing court may consider the existence or absence of remorse by the defendant in assessing the defendant’s need for rehabilitation, as well as the likelihood that a defendant may reof-fend. See, e.g., People v. Ripley, 291 Ill.App.3d 565, 226 Ill.Dec. 259, 685 N.E.2d 362, 366 (1997); State v. Roberts, 641 A.2d 177, 179 (Me.1994); Jennings v. State, 339 Md. 675, 664 A.2d 903, 910 (1995); People v. Wesley, 428 Mich. 708, 411 N.W.2d 159, 162 (1987); State v. Shreves, 313 Mont. 252, 60 P.3d 991, 996 (2002); State v. Tiernan, 645 A.2d 482, 485 (R.I.1994); State v. Clegg, 635 N.W.2d 578, 581 (S.D.2001); State v. Sims, 158 Vt. 173, 608 A.2d 1149, 1158 (1991); see also Bergmann v. McCaughtry, 65 F.3d 1372, 1379 (7th Cir.1995) (“It is well established that a sentencing court may consider lack of remorse when imposing a sentence.”). As the Vermont Supreme Court stated, “A defendant’s acceptance of responsibility for the offense, and a sincere demonstration of remorse, are proper considerations in sentencing. They constitute important steps toward rehabilitation.” Sims, 608 A.2d at 1158.

Concern has been expressed that there is a fine line between considering a defendant’s lack of remorse and penalizing a defendant for refusing to plead guilty and insisting on his right to trial. See, e.g., Jennings, 664 A.2d at 910-11 (Raker, J., dissenting); Wesley, 411 N.W.2d at 165-68 (Brickley, J., concurring in result); Wesley, 411 N.W.2d at 168 (Cavanagh, J., concurring). As our own court has held, a “trial court must carefully avoid any suggestions in its comments at the sentencing stage that it was taking into account the fact defendant had not pleaded guilty but had put the prosecution to its proof.” State v. Nichols, 247 N.W.2d 249, 256 (Iowa 1976). But this prohibition does not preclude a sentencing court from finding a lack of remorse based on facts other than the defendant’s failure to plead guilty. A defendant’s lack of remorse can be discerned “by any admissible statement made by the defendant pre-trial, at trial, or post-trial,” or by “other competent evidence properly admitted at the sentencing hearing.” Shreves, 60 P.3d at 996.

We conclude that a defendant’s lack of remorse is highly pertinent to evaluating his need for rehabilitation and his likelihood of reoffending. Therefore, a sentencing court may properly consider this factor, as evidenced by facts other than the defendant’s not-guilty plea, in making a sentencing decision. The only remaining question, then, is whether this conclusion is equally valid when the defendant has entered an Alford plea, professing his innocence, rather than having been adjudged guilty after trial. We now address that issue.

C. Sentencing after an Alford plea. As noted earlier, a defendant enters an Alford plea by pleading guilty while still maintaining his innocence. See Sturgeon, 487 N.W.2d at 340. The position of a defendant entering such a plea is not very different than that of a defendant who has entered a not-guilty plea and subsequently been found guilty after trial. A not-guilty plea is certainly no less a claim of innocence than an Alford guilty plea. Therefore, if consideration of a defendant’s lack of remorse is proper in the former setting, it is surely proper in the Alford-plea setting unless there is something peculiar about the underpinnings of an Alford plea that warrants different treatment of a defendant entering an Alford plea.

To resolve this question, we turn to the United States Supreme Court’s ruling in Alford. The issue in that case was whether a court may accept a guilty plea when the defendant simultaneously asserts his innocence. See Alford, 400 U.S. at 31-34, 91 S.Ct. at 164-66, 27 L.Ed.2d at 168-69. The Court held that “[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Id. at 37, 91 S.Ct. at 167, 27 L.Ed.2d at 171. Although concluding that a trial court accepting such a plea does “not commit constitutional error,” id. at 38, 91 S.Ct. at 168, 27 L.Ed.2d at 172, the Court also pointed out:

Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting guilty pleas from any defendants who assert their innocence.

Id. at 38 n. 11, 91 S.Ct. at 168 n. 11, 27 L.Ed.2d at 172 n. 11 (citations omitted).

We find nothing in the Court’s reasoning in Alford that would require a court to treat a defendant who entered an Alford plea any differently for purposes of sentencing than a defendant who has pled not guilty. See State v. Schwarz, 211 Wis.2d 710, 566 N.W.2d 173, 177 (Ct.App.1997) (“There is nothing inherent in the nature of an Alford plea that gives a defendant any rights, or promises any limitations, with respect to the punishment imposed after the conviction.”). As the Idaho Court of Appeals has stated, Alford “does not require ... that a court accept a guilty plea from a defendant while simultaneously treating the defendant as innocent for purposes of sentencing.” State v. Howry, 127 Idaho 94, 896 P.2d 1002, 1004 (Ct.App.1995). The Howry court concluded that “once the Alford plea is entered, the court may treat the defendant, for purpose of sentencing, as if he or she were guilty.” Id.; see also Wesley, 411 N.W.2d at 168 (Cavanagh, J., concurring) (“[RJeality and common sense require the sentencing judge to act upon the basis of the central presumption that the defendant is guilty. Following a plea of guilty or a trial, a convicted defendant stands before the sentencing judge no longer clothed with the presumption of innocence/’)- We agree: the defendant entering an Alford plea amidst claims of innocence is no different than a defendant found guilty amidst claims of innocence. The defendant’s lack of remorse is a pertinent sentencing factor in both situations.

We also find no problem with the possibility that the court’s consideration of a defendant’s lack of remorse might inhibit a defendant from offering an Alford plea. This potential effect does not contravene the Court’s holding in Alford because Alford did not give defendants a right, constitutional or otherwise, to enter an Alford plea. See State v. Klawonn, 609 N.W.2d 515, 521 (Iowa 2000); Farley v. Glanton, 280 N.W.2d 411, 414 (Iowa 1979). In fact, as the Court noted in Alford, a state may even choose not to accept guilty pleas from defendants who profess their innocence.

In Iowa, the district court has discretion to accept guilty pleas from defendants who claim to be innocent where “ ‘the record before the judge contains strong evidence of actual guilt.’ ” Klawonn, 609 N.W.2d at 521 (quoting Alford, 400 U.S. at 37, 91 S.Ct. at 167, 27 L.Ed.2d at 171); see Farley, 280 N.W.2d at 415. The decision to allow Alford pleas does not mean, however, that such defendants are not subject to the same assessment for purposes of sentencing as are other defendants, including an evaluation of the factors relevant to their need for rehabilitation and their likelihood to reoffend. See Smith v. Commonwealth, 27 Va.App. 357, 499 S.E.2d 11, 13-14 (1998) (allowing consideration of lack of remorse by defendant entering Alford plea, notwithstanding defendant’s argument that doing so “may chill the use of the Alford plea and may increase the burden on the courts”).

' IV. Summary and Conclusion.

A sentencing court may properly consider a defendant’s lack of remorse when choosing a sentence that will provide for the defendant’s rehabilitation and protect the public from further offenses by the defendant, so long as the court’s lack-of-remorse finding is not based on the defendant’s decision to stand trial. Moreover, a defendant’s lack of remorse may be considered even when the defendant professes his innocence by entry of an Alford plea. The court of appeals erred in holding to the contrary; therefore, we vacate its decision.

We conclude the district court here properly considered the defendant’s lack of remorse in determining the appropriate sentences for his crimes. Finding no abuse of discretion in the district court’s sentencing decision, we affirm the district court’s judgment of conviction and sentence.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      . Additionally, one court has held that a defendant's Fifth Amendment right to remain silent is violated when the sentencing court "draw[s] a negative inference of lack of remorse from the defendant’s silence at sentencing where [the defendant had] maintained, throughout the proceedings, that he did not commit the offense of which he stands convicted — i.e. that he is actually innocent.” Shreves, 60 P.3d at 996. This issue is not present in the case before us because the defendant did not exercise his right to remain silent at the sentencing proceeding.


author: CARTER, Justice.

text:
    Ray GOSCH d/b/a Ray Gosch Trucking, Appellant, v. Dick JUELFS, Appellee.
    No. 03-1745.
    Supreme Court of Iowa.
    July 22, 2005.
    Robert Kohorst of Kohorst, Early & Louis, Harlan, for appellant.
    Jeffrey R. Minnich and A. Eric Neu of Neu, Minnich, Comito & Neu, P.C., Carroll, for appellee.
   CARTER, Justice.

Ray Gosch, the owner of a truck-tractor, appeals from a judgment awarding him damages for the destruction of his truck-tractor in a vehicle collision. He contends that he was also entitled to recover consequential damages to his business from the loss of a key employee and to recover prefiling interest on the property damage from the date of the collision. The appel-lee is Dick Juelfs, the defendant whose vehicle collided with Gosch’s truck-tractor, killing Gosch’s employee, Merlyn Berens. After reviewing the record and considering the arguments presented, we conclude that the district court and the court of appeals were correct in rejecting a claim for consequential damages based on the loss of a key employee. With respect to Gosch’s claim for prefiling interest, we agree that, because all of the property damage was complete on the date of the collision (July 7, 1999), interest on the property damage award is recoverable from that date pursuant to Iowa Code section 535.2(1)(5).

Gosch’s employee, Merlyn Berens, was killed in a vehicle collision occurring on July 7, 1999, between a truck-tractor owned by Gosch and driven by Berens and an automobile driven by Juelfs. A jury found that Juelfs’ fault was the cause of the collision. Although Gosch had sought to recover consequential damages to his business from the loss of a key employee, Berens, the district court refused to submit that claim to the jury. The only damage claim submitted concerned the destruction of Gosch’s truck-tractor. The jury found that the damage to the truck-tractor was $9980. Although Gosch requested interest on that sum from the date of the collision, the district court only awarded interest from the date of the filing of the action.

Gosch’s appeal seeks a new trial in which the jury is allowed to consider the consequential damage to his business from the loss of Berens’ services and an award of interest on the property damage from the date of the collision.

I. Scope of Review.

Our standard of review in this matter is for correction of errors at law. Iowa R.App. P. 6.4; Iowa Code § 611.6 (2001). If there is substantial evidence in the record to support the trial court’s decision, we are bound by its fact-findings. State ex rel. Miller v. Internal Energy Mgmt. Corp., 324 N.W.2d 707, 710 (Iowa 1982). We are not bound, however, by the trial court’s application of legal principles. Midwest Recovery Servs. v. Wolfe, 463 N.W.2d 73, 74 (Iowa 1990).

II. Damages for Loss of a Key Employee.

In the district court, Gosch presented evidence the collision that precipitated this litigation occurred during his peak rock-hauling season. He contended that he was unable to hire a replacement driver for Berens and sustained a substantial loss of income as a result of Berens’ death. Gosch urges the trial court erred in failing to allow the jury to consider consequential damages based on these circumstances.

We are satisfied that the district court acted correctly on this claim and was properly affirmed by the court of appeals. In Anderson Plasterers v. Meinecke, 543 N.W.2d 612 (Iowa 1996), we relied on Restatement (Second) of Torts section 766C (1979) and concluded that employers may not claim damages for the loss of an injured employee’s time or the expense of hiring a replacement worker. Anderson Plasterers, 543 N.W.2d at 613-14. We think that this principle also precludes an award of damages for loss of income to a business as a result of the absence of an injured employee. The district court correctly denied this element of recovery.

III. Prejudgment Interest.

The district court predicated the award of interest on Gosch’s property-damage on Iowa Code section 668.13, which provides for interest on damages sustained prior to trial from the date of the commencement of the action. We have recognized, however, that this statute does not govern in those situations in which our case law has provided that interest may be allowed from a date prior to the filing of a petition. Schimmelpfennig v. Eagle Nat'l Assurance Corp., 641 N.W.2d 814, 816 (Iowa 2002). Although in many instances interest is not recoverable on unliquidated damages prior to judgment, our cases have carved out a definite exception to this rule when it has been shown that the damage was complete at a particular time. Midwest Mgmt. Corp. v. Stephens, 353 N.W.2d 76, 83 (Iowa 1984); Mrowka v. Crouse Cartage Co., 296 N.W.2d 782, 783 (Iowa 1980); Weaver Constr. Co. v. Farmers Nat’l Bank, 253 Iowa 1280, 1292, 115 N.W.2d 804, 811 (1962); Gen. Mills v. Prall, 244 Iowa 218, 221, 56 N.W.2d 596, 598 (1953); Bridenstine v. Iowa City Elec. Ry., 181 Iowa 1124, 1135-36, 165 N.W. 435, 439 (1917); Collins v. Gleason Coal Co., 140 Iowa 114, 124, 118 N.W. 36, 37 (1908). In Bridenstine we stated this principle as follows:

There is an old and general rule to the effect that interest is not recoverable upon an unliquidated demand until it has been reduced to judgment. To this, however, we have come to recognize certain exceptions. One such exception has been stated to be that: “Interest is allowable on unliquidated claims wherever it appears that the damage was complete at a particular time.... ”

181 Iowa at 1136, 165 N.W. at 439 (quoting Collins, 140 Iowa at 124, 118 N.W. at 37).

Language that appears later in the Bridenstine opinion may have caused some confusion on this issue and led the court of appeals to its decision to deny prefiling interest in the present case. We stated in Bridenstine that “in cases in which the entire damage for which recovery is demanded was complete at a definite time before the action was begun interest is recoverable, even though the damage is of an unliquidated character.” 181 Iowa at 1136, 165 N.W. at 439 (emphasis added). We conclude that the reference to “the entire damage for which recovery is demanded was complete” was intended to demonstrate that, when a general verdict is returned that includes unliquidated damages complete at a certain time and also unliquidated damages that were not shown to have been complete at a certain time, it is impossible to determine a portion of the verdict on which prefiling interest may be recovered. This was clarified in Mrowka in which we stated:

It is apparent that certain damages a tortiously injured person might sustain may be fixed in amount and time of accrual prior to trial, for example, medical expenses. Disregarding the complexities of piecemeal computation, reason and logic may dictate that interest should be computed on those items from the time the expense is incurred. The same logic, might not call for interest on an award for future pain and loss of income to be allowed retroactively as though it were sustained in toto on the date of injury. In any event, such a rule would require separate awards on the various damage elements to be fixed by the jury.

296 N.W.2d at 784-85. When, as here, a definite amount of recovery has been fixed by the trier of fact for a damage item shown to be complete at a particular time, interest should be allowed as to that item from the time that the damage was shown to be complete. That was the situation in Schimmelpfennig in which we awarded prefiling interest on some but not all elements of damage.

We have considered all issues presented and conclude that the decision of the court of appeals should be affirmed in part and vacated in part. The judgment of the district court is affirmed subject to a modification of the interest awarded on the property damage, which shall be awarded from July 7, 1999, the date of the collision at the rate provided in Iowa Code section 535.2(1)(6).

DECISION OF COURT OF APPEALS AFFIRMED IN PART, VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED AS MODIFIED.

      . This was the situation in Abel v. Dodge, 261 Iowa 1, 11, 152 N.W.2d 823, 829 (1967), and Lawson v. Fordyce, 237 Iowa 28, 68, 21 N.W.2d 69, 89-90 (1945).