text:
    2003 SD 85
    STATE of South Dakota, Plaintiff and Appellee, v. Manuel HATCHETT, Defendant and Appellant.
    No. 22683.
    Supreme Court of South Dakota.
    Considered on Briefs May 27, 2003.
    Decided July 23, 2003.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    John J. Simpson, Hamill, South Dakota, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] After pleading guilty to fourth offense DUI, defendant was sentenced to the penitentiary for five years, and his driving privileges were revoked for an “indefinite period of time.” He appeals his license revocation as being unlawful and his penitentiary sentence as being unconstitutional on grounds of “racial disparity.” Because our statutes only authorize courts to revoke driving privileges for a definite period, the indefinite revocation was impermissible. We reverse the license revocation and remand for the court to revoke defendant’s driving privileges for a specific period. As to his penitentiary sentence, other than referring to the recently released Braunstein-Feimer statistical report, defendant submitted no evidence to support his racial disparity claim. Because there is no evidence that the deci-sionmakers in this case acted with discriminatory purpose, we hold that this report alone is insufficient to prove that the sentence here was unconstitutional. We affirm the penitentiary sentence.

Background

[¶ 2.] On August 11, 2002, at 2:08 a.m., South Dakota Highway Patrol Sergeant John Koenig encountered a speeding pickup truck on U.S. Highway 18, in Bennett County. His radar indicated that the truck was traveling at 81 m.p.h. The speed limit was 65 m.p.h. Sergeant Koenig pulled the truck over. As he approached the driver’s side window, he saw several beer cans. He also noticed the odor of alcoholic beverages coming from the occupants. The driver, later identified as Manuel Warren Hatchett, had a flushed complexion and bloodshot eyes.

[¶ 3.] Sergeant Koenig informed Hatchett of the reason he had been stopped. In response, Hatchett mumbled something, stared forward, and stated that he had no driver’s license. When Koenig reached inside and shut off the engine, Hatchett let the truck out of gear and it began to roll backwards. Koenig had to yell at him three times before he responded and stopped the vehicle. Hatchett moved slowly and his speech was slurred. Once the truck was halted, Koenig asked Hatchett to come back to his patrol car. The driver’s door was ajar. Hatchett got out of the truck through the window with Koenig’s help. On the way to Koenig’s patrol car, Hatchett staggered and was unsteady.

[¶ 4.] In the patrol car, Hatchett first identified himself as Chris W. Hatchett. But the radio dispatcher could find no record of such person. Koenig soon learned Hatchett’s actual identity. Hatchett told Koenig that he thought he was going 75 m.p.h. in a 75 m.p.h. zone. He failed the sobriety tests the sergeant administered inside the car and although he had initially agreed to perform additional physical tests outside, he declined, citing a bad leg. Koenig arrested Hatchett for driving under the influence of alcohol. When Koenig read the implied consent warning to Hatchett, he did not respond. He had fallen asleep. The sergeant was unable to wake him.

[¶ 5.] At some point, Koenig found rolling papers in Hatchett’s pockets and later, when interviewing him, noticed a bulge in his right sock that turned out to be a bud of marijuana wrapped in a napkin. At the hospital in Martin, a sample of Hatchett’s blood was drawn. Later analysis revealed that he had a blood alcohol content (BAC) of .30.

[¶ 6.] At the time of his arrest, Hatchett’s license had been suspended and an active warrant had been issued for his failure to comply with the sentence from a prior DUI conviction in Minnehaha County. Hatchett had a lengthy criminal record including five DUIs (with a sixth at the age of 17) and a conviction for involuntary manslaughter in federal court. The latter conviction arose from the death of his eighteen year-old niece who fell from the back of his truck while he was driving. Hatchett pleaded guilty to fourth offense DUI. Under a plea agreement, several related misdemeanor charges were dismissed. In the interim between his guilty plea and sentencing, the court granted Hatchett permission to enter an inpatient alcohol treatment center on November 12, 2002. Within one week, he was in trouble at the treatment center for testing positive for marijuana use. He was returned to custody on November 20, 2002.

[¶ 7.] The court pronounced sentence on December 16, 2002. Noting his prior DUI convictions, his extensive arrest record, his noncompliance with the sentence on his last DUI, and his inability to follow through in getting help for his problems, including his recent failure in treatment, the court concluded that probation was not feasible and that Hatchett needed the structure provided through incarceration. The court sentenced him to five years in the penitentiary with credit for previous time served, ordered him to pay costs and fees, and revoked his driving privileges “for an indefinite period of time.” Hatchett appeals on the following issues: (1) “Did the sentence of the trial court exceed statutory limits?” (2) “Did the sentence of the court violate constitutional or procedural requirements? Should a racial disparity and proportionality hearing be held?”

1. Revocation of License for “Indefinite Period”

[¶8.] Hatchett contends that the trial court exceeded statutory limits in revoking his driving privileges “for an indefinite period of time.” SDCL 32-28-4.6 provides:

If conviction for a violation of § 32-23-1 is for a fourth offense, or subsequent offenses thereafter, and the person has previously been convicted of a felony under § 32-23-4, the person is guilty of a Class 5 felony, and the court, in pronouncing sentence, shall unconditionally revoke the defendant’s driving privileges for such period of time as may be determined by the court, but in no event less than two years from the date sentence is imposed or two years from the date of discharge from incarceration, whichever is later. If the person is convicted of driving without a license during that period, he shall be sentenced to the county jail for not less than twenty days, which sentence may not be suspended.

(Emphasis added.) The words “for such period of time as may be determined by the court” connote a definite period, not an indeterminate one. SDCL 32-23-4.6. The Legislature made this explicit in SDCL 32-12-47.2: “Revocation is the termination of a person’s driving privilege and withdrawal of that person’s driver license, if any, for a specified time.” By statute, then, the trial court had the authority to revoke Hatchett’s driver’s license for a specific length of time, not less than two years. We reverse and remand for the court to order revocation of Hatchett’s driving privileges for a definite period.

2. Unconstitutional Sentence

[¶ 9.] Both our federal and state constitutions guarantee equal protection of the laws and freedom from cruel and unusual punishment. U.S. Const. 8th and 14th Amendments; SD Const. VI, §§ 2, 23. Hatchett asserts that his five-year penitentiary sentence is unconstitutional because it is the product of “racial disparity in sentencing.” He is an enrolled member of the Oglala Sioux Tribe. The Eighth Amendment to our federal constitution forbids a sentence disproportionate to the crime. Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 3006, 77 L.Ed.2d 637, 645 (1983). A sentence disproportionate solely because of a person’s race is constitutionally impermissible.

[¶ 10.] Hatchett’s attorney asserts that his “belief is not the product of some frivolity, but is the result of a deep seated conviction that the justice system, and yes, the trial courts, engage in racial disparity in sentencing.” In support, counsel cites the recently released study authored by Professors Richard Braunstein and Steve Feimer. See South Dakota Criminal Justice: A Study of Racial Disparities, 48 SDLawRev 171 (2003). Counsel seeks a remand “with instructions to hold a racial disparity and disproportionality study.” He also asserts that often “defendants other than Native Americans have their DUI charges reduced and they do not reach the threshold of a third or fourth offense until they have been arrested many many times.”

A. Disproportionality

[¶ 11.] Before we will remand for a proportionality analysis, we must first determine whether the sentence appears grossly disproportionate. State v. Pugh, 2002 SD 16, ¶ 19, 640 N.W.2d 79, 85. Generally, a sentence within the statutory maximum will not be disturbed on appeal. State v. Bonner, 1998 SD 30, ¶ 10, 577 N.W.2d 575, 578. Although it has its flaws, the gross disproportionality test allows for some definitude in comparing judicially imposed punishments and assessing legislatively imposed gradations. Pugh, 2002 SD 16 at ¶ 18, 640 N.W.2d at 84-85. Under this test, we consider the conduct involved and any relevant past conduct, with utmost deference to the Legislature and the sentencing court. Id. at ¶ 19, 640 N.W.2d at 85.

[¶ 12.] When he was sentenced for this offense at the age of thirty-four, Hatchett had five DUI convictions as an adult. He was sentenced as a fourth offender. The maximum penalty for a fourth offense DUI is five years in the penitentiary and a $5,000 fine. SDCL 22-6-1(7). The court imposed the maximum penitentiary sentence. In addition to his prior DUIs, Hatchett also had a federal involuntary manslaughter conviction. He had twenty-two entries on his rap sheet, though many ended as dismissals. While his case was pending, the court permitted him to go into treatment. He lasted one week. A test of his blood showed that he had been using marijuana while in treatment. Hatchett’s record clearly demonstrates a history of alcohol abuse and driving under the influence. The circuit court concluded that with Hatchett’s background he was unlikely to reform in the near future and confinement in the penitentiary was necessary for the protection of the public. As we have remarked, “successful challenges to the proportionality of particular sentences [will be] exceedingly rare,” for this Court gives great deference to sentencing decisions. State v. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d 14, 18. In Bonner, we held that if a sentence fails “to suggest gross disproportionality, our review ends.” Bonner, 1998 SD 80 at ¶ 17, 577 N.W.2d at 580.

[¶ 13.] Hatchett has not shown that his sentence is disproportionate. He cites no instances where others with similar records have received significantly different sentences. Indeed, he never suggested to the circuit court that his sentence was disproportionate, that its imposition was racially motivated, or that it was somehow based on a biased perception of Native Americans. From our own examination of the record, we can find no inference of gross disproportionality in this sentence. Nor can we detect in the court’s pronouncement of sentence any indication of racial bias.

B. Denial of Equal Protection

[¶ 14.] Hatchett believes that non-Indian defendants commonly receive reduced charges before they are prosecuted finally for multiple offense DUIs. A defendant asserting an equal protection violation must prove that the State’s actions had a discriminatory effect and were motivated by a discriminatory purpose. Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 272-74, 99 S.Ct. 2282, 2292-93, 60 L.Ed.2d 870 (1979). Even to obtain discovery in support of a selective prosecution claim, criminal defendants must make a “credible showing” that “similarly situated individuals of a different race were not prosecuted,” or, more particular to this case, not required to answer for multiple offense DUIs. United States v. Armstrong, 517 U.S. 456, 470, 116 S.Ct. 1480, 1489, 134 L.Ed.2d 687 (1996). Hatchett’s only evidence is the Braunstein-Feimer report.

[¶ 15.] The United States Supreme Court has approved the use of statistics to show discrimination. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886); Hunter v. Underwood, 471 U.S. 222, 227, 105 S.Ct. 1916, 1919-20, 85 L.Ed.2d 222 (1985). Of course, “statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1856-57, 52 L.Ed.2d 396 (1977). And “raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants.” United States v. Bass, 536 U.S. 862, 864, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002). Presupposing for the purposes of this proceeding that the Braunstein-Feimer study establishes a credible showing of discriminatory effect, we must make a second inquiry. See Schweiker v. Wilson, 450 U.S. 221, 233, 101 S.Ct. 1074, 1082, 67 L.Ed.2d 186 (1981).

[¶ 16.] In addition to proving discriminatory effect, Hatchett must also show discriminatory intent to establish a violation of the Equal Protection Clause. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976). He must prove that the decisionmaker in his case “acted with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987). “ ‘Discriminatory purpose’ ... implies more than ... intent as awareness of consequences. It implies that the deci-sionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of ... its adverse effects upon an identifiable group.’ ” Id., 481 U.S. at 298, 107 S.Ct. at 1770 (quoting Pers. Adm’r of Massachusetts, 442 U.S. at 279, 99 S.Ct. at 2296, 60 L.Ed.2d 870.

[¶ 17.] In McCleskey, the defendant relied on a statistical study showing that African American defendants have a greater likelihood of receiving the death penalty than white defendants. The Supreme Court ruled that to prevail, McCleskey needed to prove that the decisionmakers in his ease acted with a discriminatory purpose. Id. at 292, 107 S.Ct. at 1767 (emphasis added). The Court disagreed with the contention that the statistical study alone constituted sufficient proof of purposeful discrimination in his case. Id. at 297, 107 S.Ct. at 1770.

[¶ 18.] To meet his burden, Hatchett must prove that he was prosecuted for fourth offense DUI because the State was motivated by a discriminatory intent. He relies solely on the Braunstein-Feimer study suggesting disparities in South Dakota’s criminal justice system. He fails to show how this study indicates that the decisionmakers in his case acted with discriminatory purpose. See id. at 297, 107 S.Ct. at 1770.

[¶ 19.] In “rare cases” statistical patterns of discrimination have shown a constitutional violation. Id., 481 U.S. at 294 n.12, 107 S.Ct. at 1768 n.12 (citing Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960)). The Supreme Court “has accepted statistics as proof of intent to discriminate in certain limited contexts.” Id. at 293, 107 S.Ct. at 1767. Specifically, the “Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district” and “has accepted statistics in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964.” Id. at 293-94, 107 S.Ct. at 1767-68. These situations are not before us. Hatchett submits only the statistics, with the request that his case be remanded for “a racial and proportionality study.” In the absence of any evidence, much less proof, of discrimination in the record, this is insufficient.

In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.” ... Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts.... It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function.

Armstrong, 517 U.S. at 464-65, 116 S.Ct. 1480, 134 L.Ed.2d 687 (citations omitted). Hatchett has not met his burden of showing that the State purposely discriminated against him.

Conclusion

[¶ 20.] Sentencing decisions based on race are repugnant to our “colorblind” Constitution. Plessy v. Ferguson, 163 U.S. 537, 559 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, J., dissenting). We take seriously any accusation that South Dakota trial courts “engage in racial disparity in sentencing.” As this State’s Court of last resort, we will not tolerate racial disparity in our judicial system. Yet, general studies suggesting that members of one race may have received higher penalties do not, alone, establish cruel and unusual punishment or show a violation of equal protection in an individual case, unless there is evidence that the decisionmakers in that case acted with discriminatory purpose. Absent any evidence particular to this case, the Braun-stein-Feimer report alone does not prove that Hatchett received discriminatory treatment.

[¶ 21.] Affirmed in part, reversed in part, and remanded.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . By revoking his driver’s license for an indefinite time, perhaps the court sought to retain jurisdiction to later reduce the revocation in the event that Hatchett demonstrated that he was no longer a threat to society. However, SDCL 23A-31-1 provides that a court may reduce a sentence "within one year after the sentence is imposed.”

      . In State v. Groethe, 439 N.W.2d 554 (S.D.1989), we modified a sentence that revoked the defendant's driver’s license for the remainder of his life, citing SDCL 23A-32-19 as authority to do so. State v. Dufault, 2001 SD 66, ¶ 10, 628 N.W.2d 755, 757-58.

      . The State argues that revocation for an indefinite period is permissible, citing Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980). There, a Colorado statute specifically stated that driving privileges were to be revoked for an “indefinite period of time” and reinstated only after certain conditions were fulfilled. Here, the language of the South Dakota statute controls. South Dakota Wildlife Fed’n v. Water Mgmt. Bd., 382 N.W.2d 26, 33 (S.D.1986).

      . Hatchett asks us to take judicial notice of the Federal Sentencing Guidelines. He submits no authority to support how these guidelines would apply, much less compare, to state sentences.


source: Caselaw Access Project

author: KONENKAMP, Justice

license: Public Domain

text:
    2003 SD 87
    STATE of South Dakota, Plaintiff and Appellee, v. William Robert OSGOOD, II, Defendant and Appellant.
    No. 22474.
    Supreme Court of South Dakota.
    Argued on Feb. 12, 2003.
    Decided July 23, 2003.

      Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Gregory J. Erlandson of Bangs, McCul-len, Butler, Foye & Simmons, Rapid City, for defendant and appellant.
   KONENKAMP, Justice

[¶ 1.] Defendant was found guilty by a jury of criminal pedophilia and sexual contact with a five-year-old child. He later pleaded guilty to being a habitual offender. He was sentenced to the penitentiary. On appeal, defendant contends that the trial court abused its discretion in denying his motion to have his psychological expert interview the child. When the investigation began, an independent forensic examiner interviewed the child and later testified as an expert for the prosecution. The defense wanted a corresponding opportunity for its expert to conduct an interview. If the prosecutor had access to an expert who interviewed the child victim, did the trial court abuse its discretion in refusing to allow the defense expert to conduct an interview? Because there was no evidence that the child was untruthful or delusional and there was a valid concern that the child could be traumatized by another interview about her experiences, we conclude that the court did not abuse its discretion in denying the request. We affirm.

Background

[¶ 2.] V.B. was the child victim in this case. Lisa B., V.B.’s mother, met William Robert Osgood, II, the defendant, in August 2000. They became friends and babysat each other’s children over a period of several months. Osgood babysat V.B. in his home as many as ten to fifteen times from late 2000 until early 2001. At the time, V.B. was five years old and Osgood’s son was eight. At some point, differences arose between Osgood and Lisa B. They ended their friendship and their baby-sitting arrangement.

[¶ 3.] A few weeks later, however, on May 27, 2001, Lisa B. and her friends were making plans to go out for the evening. She decided to call Osgood to babysit. After she told V.B., the child responded, “No, you’re not calling Bill.” Lisa B. recalled later that when she asked why, the child responded, “Well, mom, I didn’t want to tell you this because Bill told me not to, but he — he always — it’s just that ... every time I go over there he touches my pee-pee, and one time he let me touch his pee-pee.” After Lisa B. and her friends further questioned V.B., Lisa B. contacted the police.

[¶ 4.] On June 5, 2001, V.B. was interviewed by Lora Hawkins, a forensic interviewer with the Child Advocacy Center of the Black Hills. The concept of nationwide children’s advocacy centers came about in an effort to prevent the traumatizing effect of repeated examinations of child abuse victims by doctors, social workers, psychologists, and law enforcement officers. As an ideal, the child would be examined by one doctor and questioned by one trained child interviewer on a single occasion. The Child Advocacy Center of the Black Hills is an independent facility “where children [who] appear to have experienced some sort of trauma ...” may be questioned “in a neutral, non-leading kind of environment where children might have a better opportunity to be understood.” The Rushmore Rotary Club pays the salary for Hawkins. The Center has its office in Rapid City, South Dakota, in the Black Hills Pediatrics medical suite. In addition to Hawkins, the Center has two pediatricians available to conduct physical examinations. Although the Center receives suspected abuse referrals from law enforcement and social service agencies, it is not a part of those agencies.

[¶ 5.] The entire interview was videotaped. During the interview, V.B. said that while she was at Osgood’s house, she slept in a bunk bed, with his son in the top bunk and V.B. in the bottom bunk. While the son slept, Osgood came to her bed and reclined beside her. V.B. said that Osgood would touch her “pee-pee” with his fingers. He did this each time she stayed at his home. Moreover, Osgood once had V.B. touch his “wee-wee,” when he took it out of his pants. She noticed that it was sticking out, was like a “bone,” and “it felt gooey ... everywhere on his private.” In addition, V.B. revealed an incident that occurred in the TV room of Osgood’s home, when he put her on his lap and touched her genitals. At a point during the interview, Hawkins left the room to consult with the investigating officer to see if there was any other line of questioning that should be pursued. During the interview, however, only Hawkins and V.B. were in the room.

[¶ 6.] Both V.B. and her mother were victims of physical abuse at the hands of the mother’s boyfriend. One incident occurred two days before V.B.’s disclosure of Osgood’s sexual abuse. On that occasion, V.B. may have been aware of the sexual assault of her mother by the boyfriend, an assault similar to the acts perpetrated on V.B. by Osgood. At trial, however, Lisa B. testified that V.B. was in bed asleep when her boyfriend crawled into bed with Lisa B. and “put his hand down [Lisa B.’s] underwear while [she was] sleeping and groped [her] down there.” Sometime later, the boyfriend repeatedly beat both Lisa B.’s and V.B.’s heads together until V.B. was knocked unconscious. V.B. also had a prior sexual encounter when she was two or three years old and was playing doctor with her nine-year-old female cousin. The girls licked each other’s genitalia. After Lisa B. discovered this, she stressed to V.B. that if she was ever touched in a bad way again she should tell her immediately.

[¶ 7.] Before trial, Osgood moved to have' his psychological expert, Dr. Mark Perrenoud, interview V.B. In the motion, defense counsel indicated a concern that Hawkins would be asked at trial to “give an opinion on the issue of V.B.’s credibility based upon her forensic interview.” The trial court denied the request, when the child’s therapist reported that such an interview would traumatize the child.

[¶ 8.] At trial, V.B., now age six, told the jury that Osgood had “touched her privates” during the times he babysat her. She felt his finger inside her and “it hurt very bad.” She testified that she also touched Osgood: “it was something hard and so he took it out and I touched it.” “He took it out and made me feel it.” She said that Osgood warned her: “Don’t tell your mom this or else she’ll get mad.” On cross-examination, she answered questions on such matters as the abuse she and her mother suffered at the hands of her mother’s boyfriend, what she had been told before testifying, and her understanding of the difference between children and adults. Her testimony was responsive to the questions and coherent. Dr. Lori Strong, a board certified pediatrician, testified that she examined V.B. and found no physical evidence of sexual abuse; however, she explained that the absence of any physical signs of sex abuse is not uncommon, especially in light of the type of sexual abuse alleged in this case.

[¶ 9.] After the videotape of the interview between Hawkins and V.B. was played to the jury, Hawkins testified that V.B. was consistent in her allegations of sexual abuse. Hawkins explained that she was not privy to the specifics of other accounts V.B. had given. She used the term “consistent” to mean internal consistency in V.B.’s account to her, including the location, the perpetrator, and the “physical description” of what she experienced. Hawkins also said that the child did not exhibit signs of being coached or having her statement “rehearsed or taught.” She gave no explicit opinion on whether V.B. was telling the truth. Hawkins was never asked in the trial and never testified whether V.B. exhibited traits and characteristics consistent with those found in sexually abused children. See State v. Bachman, 446 N.W.2d 271 (S.D.1989) (such questions permissible).

[¶ 10.] Dr. Perrenoud testified for the defense. In preparation, he reviewed the discovery materials provided by the State, including law enforcement reports; the videotape of the interview with Hawkins; the transcript of a motions hearing in which Hawkins, Dr. Strong, and Lisa B. testified; counseling notes; and arrest reports from Lisa B.’s domestic violence incident. He also observed V.B. testify in the trial and conferred with defense counsel before cross-examination. Dr. Perrenoud identified behaviors that victims of both physical and sexual abuse may exhibit. As to whether V.B. exhibited characteristics consistent with those found in sexually abused children, Dr. Perrenoud opined that other factors, such as the child’s physical abuse, self-stimulation, prior sexual abuse, multiple caretakers, and her mother’s casual attitude about her excessive drinking, could account for V.B.’s behaviors.

[¶ 11.] In closing argument, defense counsel asserted that V.B. “made a story up.” Thus, the jurors were left to decide whether to believe or disbelieve the child. The jury found Osgood guilty of criminal pedophilia and sexual contact with a child. After he pleaded guilty to being a habitual offender, he was sentenced to life in prison for criminal pedophilia and a concurrent twenty-five years in prison for sexual contact with a child. Osgood appeals on the sole ground that the trial court abused its discretion in denying his motion to have the defense psychologist interview the child victim.

Analysis and Decision

[¶ 12.] As the only eyewitness, V.B. was pivotal to obtaining Osgood’s conviction. Her testimony was largely uncorroborated. Her credibility was crucial. Hawkins bolstered V.B.’s credibility to the extent that she testified that V.B. did not appear to have been coached, rehearsed, or taught. Osgood contends, therefore, that his expert should have had the same access to this critical witness. To deny him the same opportunity, he argues, was fundamentally unfair because it deprived him of the right to refute the State’s expert. Although Dr. Perrenoud was able to view the videotaped interview, Osgood believes that it was not the same as being able to conduct a personal interview.

[¶ 13.] We dealt with a related question in State v. Cates, 2001 SD 99, ¶ 15, 632 N.W.2d 28, 35. There, the defense moved for a psychiatric exam of the child sex abuse victim. We found no abuse of discretion in the denial of the request. To obtain such an examination of the victim, the defendant must make a substantial showing of need and justification. Id. at ¶ 15, 632 N.W.2d at 35. An unsupported assertion that the proposed interview would be useful to the defense is plainly inadequate. We have long held that the purpose of a psychological or psychiatric examination of the victim in most cases involving sex offenses is to detect any thought disorders or distortion of perceptions that might affect the credibility of the complaining witness. Id.

[¶ 14.] As with adverse psychiatric exams, we think it wholly inadequate merely to assert that one has the right to duplicate a forensic interview without demonstrating a justification for this measure. Therefore, before a court should order a defense psychological interview of a child complainant of alleged sex abuse, there must be some indication to justify it, such as evidence raising a concern about the victim’s veracity. See State v. LeBlanc, 558 So.2d 507, 509 (Fla.Ct.App.3d Dist. 1990). A defendant would have to show, for instance, that due to mental or emotional incapacity, a victim’s allegations may be spurious. Cf. Anderson v. State, 749 P.2d 369 (Alaska App.1988) (substantial concern about competency to testify). A case in point is State v. Stacy, 179 W.Va. 686, 371 S.E.2d 614 (W.Va.1988), where the trial court erred in denying a defense motion for an independent psychiatric examination of a five-year-old complainant, when the child’s ability to recall events and to testify truthfully about them was in serious question and when she was unresponsive or answered incoherently on cross-examination.

[¶ 15.] In oral argument, Osgood suggested that the ruling in Gray v. State, 640 So.2d 186 (Fla.Ct.App.1st Dist. 1994) lent guidance to our decision. There, in the case of a teacher charged with molesting his pupil, the prosecution’s expert psychologist concluded that the victim “exhibited certain psychological and emotional symptoms that are consistent with those often seen in sexually abused children.” Id. at 190. However, there was testimony that the child, an emotionally handicapped elementary school student, was known to be “not truthful” and liked to expose himself to other children. Id. at 189. The defense sought an adverse psychological examination. At the motion hearing, defense counsel offered a less intrusive measure than an adverse exam, i.e. allowing the defense psychologist to sit in the courtroom during the child victim’s testimony. Id. at 190-91. But the prosecutor objected to that as well, and the court denied the motion. During the trial, the prosecutor, in cross-examining the defense expert, unfairly took advantage of the court’s denial of a defense interview by asking the defendant’s expert, “isn’t it imperative that you would have to speak to the child to make that determination?” Id. at 191. A Florida appellate court found that it was an abuse of discretion to refuse the defense request for an independent psychological examination. The court ruled that the prosecutor’s use of subjective information it gleaned from its expert’s personal interview is a compelling reason to allow the defense its own personal interview. Considering all these circumstances, the court held that the failure to allow the interview deprived the defendant of fundamental fairness by precluding him from presenting a fair defense to the prosecution’s case. Id. at 192-93.

[¶ 16.] Several facts distinguish that case from ours. There, according to the defense expert, the child’s most recent psychological evaluation suggested “deceitfulness, rationalization, and ... inconsistent and potentially untruthful responses.” Id. at 191. That opinion was corroborated by witness testimony about the child’s lying. Here, Osgood points to no evidence, expert or otherwise, suggesting that V.B. was deceitful, untruthful, or delusional. From our review of the Hawkins videotape interview, the child appeared to give a detailed and coherent rendition of events. In Gray, the defense expert believed that the child’s evidence was inconsistent with “that of a sexual abuse victim.” Id. Here, on the other hand, after viewing V.B.’s video interview and witnessing her testimony in court, Dr. Perrenoud did not say that her factual situation was inconsistent with having been sexually abused. He would only say that her other “life stres-sors” complicated the picture and that these other elements could be another explanation for her behaviors.

[¶ 17.] In Gray, there was no evidence offered that the victim, seventeen at the time of his testimony, would suffer “emotional detriment” from a psychological examination. Id. at 193. Here, the trial court denied Osgood’s motion after considering the opinion of V.B.’s therapist that a further interview would traumatize V.B. At the time, V.B. was six years old. Lastly, unlike the prosecution’s expert in Gray, Hawkins was not an expert hired by the State. She was an independent forensic examiner. True, she worked closely with law enforcement, but she was autonomous, and, except for the interview, was not involved with investigating this offense. In judging whether the defendant has a reciprocal right to an expert, courts have made a distinction between experts hired by the prosecution and independent experts. See LeBlanc, 558 So.2d 507 (order compelling a psychological examination by defense doctors of three children regarding whether the children had manifested symptoms of sexual abuse quashed where expert prosecution was using was a court appointed independent examiner).

[¶ 18.] Trauma to a child victim is certainly a valid consideration in determining whether to grant an adverse interview. “Making court-ordered adversarial examinations routinely available would raise a barrier to the prosecution of this kind of crime by maximizing the trauma that its victims must endure.” United States v. Rouse, 111 F.3d 561, 567 (8thCir.1997). Courts should give due consideration to the traumatic effect adversarial interviews may cause.

[¶ 19.] On the other hand, the need to protect the victim cannot override a defendant’s rights. Trial courts bear the duty to strike a balance between the defendant’s right to a fair trial and the State’s interest in the welfare of the child victim. Therefore, trial courts should carefully weigh requests for adverse psychological interviews of child sex abuse victims. Among the relevant considerations for assessing a claimed substantial need, courts may consider the victim’s age; the nature of the examination requested and whether it might further traumatize the victim; whether the prosecution employed a similar expert; whether the evidence already available to the defendant suffices for the purpose sought in the examination; whether there is a reasonable basis for believing that the child’s mental or emotional state may have affected the child’s veracity; whether evidence of the crime has little or no corroboration beyond the testimony of the victim; whether there is other evidence available for the defendant’s use; and whether the child will testify live at trial, so the jury will be able to assess credibility firsthand. Gray, 640 So.2d at 193; Chapman v. State, 117 Nev. 1, 16 P.3d 432, 434 (2001); Koerschner v. State, 116 Nev. 1111, 13 P.3d 451, 455 (2000); State v. Braun, 787 P.2d 1336, 1343 (Utah Ct.App.1990); State v. Delaney, 187 W.Va. 212, 417 S.E.2d 903, 907 (1992). See generally Annotation, Necessity or Permissibility of Mental Examination to Determine Competency or Credibility of Complainant in Sexual Offense Prosecution, 45 A.L.R.4th 310 (1986); Annotation, Requiring Complaining Witness in Prosecution for Sex Crime to Submit to Psychiatric Examination, 18 A.L.R.3d 1433 (1968).

[¶ 20.] We review for abuse of discretion a circuit court’s denial of a motion to compel the examination of a child sex abuse victim. Cates, 2001 SD 99 at ¶ 14, 632 N.W.2d at 35. Even if we find an abuse of discretion, we will affirm unless the defendant’s substantial rights were violated. SDCL 23A-44-14 (Rule 52(a)). Considering the entire record, we conclude that the trial court did not abuse its discretion in refusing to permit Dr. Perrenoud to interview V.B. Osgood failed to make a substantial showing of need. The ruling that the child would suffer further trauma if the psychological interview had been ordered stands unchallenged. Nevertheless, defense counsel and Dr. Perrenoud had access to the reports and V.B.’s videotaped interview. The child testified at the trial and the jurors had the opportunity to observe her firsthand and determine her credibility for themselves. Dr. Perrenoud sat in the courtroom during the child’s testimony. Defense counsel then had the opportunity to confer with him and formulate appropriate questions for cross-examining the child. With his observations of the child both on the videotape and in the courtroom, Dr. Perrenoud was able to testify concerning other factors that could have contributed to V.B.’s allegations. Therefore, Osgood had other means available in an attempt to discredit V.B.’s testimony. See also LeBlanc, 558 So.2d 507 (other tools, such as video-taped interviews, were available to defense experts to evaluate the children).

[¶ 21.] Lastly, there is little to suggest that had Dr. Perrenoud been able to interview V.B. personally that he would have uncovered information that could have changed the result of this trial. Thus, even if the trial court abused its discretion in refusing the interview, the ruling was not prejudicial. SDCL 23A-44-14 (Rule 52(a)).

[¶ 22.] Affirmed.

[¶ 23.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Hawkins has a bachelor’s degree in psychology and a master's degree in counseling. After nineteen years in Child Protection Services and six years of school and family therapy, she attended additional training to become a forensic interviewer.

      . Although their testimony was less than certain, two defense witnesses thought they heard Lisa B. say that it was her boyfriend who molested V.B.

      . Dr. Perrenoud is a licensed psychologist with substantial experience working with sexual abuse victims and those accused of committing sexual offenses. He has a bachelor’s degree in psychology, a master’s degree in counseling, and his doctorate in counseling psychology. He has been a licensed psychologist in South Dakota since 1992.

      . V.B.’s therapist, Linda Holcomb, reported to the court that in her opinion another interview would ’'retraumatize” the child. The court noted on the record that "nobody disagreed with that was what [Holcomb] said....” Holcomb was not called as a witness. As he concedes in his appellate brief, Osgood did not dispute "the reality that V.B. could be retraumatized by another interview.” Rather, he argued that with his expert being experienced in the field sexual abuse the child's trauma would be lessened.

      . Also testifying for the State were Osgood’s son; Shilo Paris, Lisa B.’s friend who was present during V.B.'s initial disclosure; Lisa B.; and investigating officer Robert Lehrk-amp. Testifying for the defense were Dr. Mark Perrenoud; Orville Osgood, the defendant's brother; Russ Simkins; John Erickson; Myla and Misty Ebright; Shilo Paris; Tina Warren; and Tanya Elcock.

      . Osgood contends that the State used a similar tactic here, but the record is equivocal on that point.

      . For the benefit of future cases, it is important to note here that there is a difference between a judge’s authority to order a psychological examination and a judge's power to compel a witness to submit to an exam. The only question here is the circuit court's authority in granting or denying a motion for a psychological interview, not the authority to compel the victim to submit to such an examination.


author: PER CURIAM.

text:
    2003 SD 88
    The PEOPLE of the State of South Dakota, In the Interest of D.T., Jr., Minor Child, and Concerning P.T and D.T., Sr., Respondents.
    No. 22522.
    Supreme Court of South Dakota.
    Considered on Briefs June 27, 2003.
    Decided July 23, 2003.

      Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, South Dakota, Attorneys for petitioner and appellee.
    Scott B. Carlson, Minnehaha County, Public Defender’s Office, Sioux Falls, South Dakota, Attorney for respondent and appellant, D.T., Sr.
   PER CURIAM.

[¶ 1.] Father appeals from an adjudication of abuse and neglect and a dispositional order terminating his parental rights to his infant son D.T. Jr. (D.T.). Mother’s parental rights were also terminated, but she has not appealed. We affirm.

FACTS

[¶ 2.] On August 16, 2001, Mother gave birth to D.T. by caesarean section. After the birth, Mother was prescribed Darvo-cet for pain. Two days after D.T. was born, Mother fell asleep in her hospital bed while D.T. was lying on her chest and woke to find D.T. on the floor. The fall resulted in two skull fractures and a brain hemorrhage. Father was in the hospital room when the child fell, but he was sleeping. He stated that he awoke when he heard either his wife or the child crying after the fall. One nursing report in the record noted that Father smelled of alcohol that evening, but that he did not appear intoxicated.

[¶ 3.] Hospital personnel informed the Department of Social Services (DSS) of the fall and a police officer was called to the hospital. Based on parents’ history of committing child abuse and neglect, the child was taken into protective custody. DSS initiated abuse and neglect proceedings against Mother and Father.

[¶4.] The trial court found the child abused and neglected and terminated parental rights. Father appeals raising three issues:

Whether there was sufficient evidence that D.T. was abused and neglected.
Whether the trial court erred in using the clear and convincing evidentiary standard to find that termination of Father’s parental rights was in the child’s best interest.
Whether the trial court erred in finding that termination of Father’s parental rights was the least restrictive alternative.

STANDARD OF REVIEW

[¶ 5.] The State must prove a child is abused and neglected by clear and convincing evidence. Matter of J.A.H., 502 N.W.2d 120, 123 (S.D.1993) (additional citations omitted). The trial court’s findings of fact will not be set aside unless they are clearly erroneous and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Matter of D.H., 354 N.W.2d 185, 188 (S.D.1984) (additional citations omitted).

ISSUE ONE

[¶ 6.] Whether there was sufficient evidence that D.T. was abused and neglected.

[¶ 7.] Upon the State’s motion, the trial court took judicial notice of the fact that both Mother and Father had their rights to other children terminated for abuse and neglect. The court found that Mother had her rights to two daughters terminated on March 26,1996 and had her rights to her son, C.S., terminated on January 20, 2000. Father has another son who is approximately seventeen years old with whom Father has no contact. Mother and Father also had their rights terminated to their son, C.T. on August 14, 2001— two days before D.T. was born. In its findings of fact from the adjudicatory hearing, the court found that “the prior cases show a pattern of abuse and neglect of children by these parents and thus judicial notice of the prior cases is appropriate.” In its conclusions of law, the court stated, “[biased on the prior abuse and neglect cases and the pattern of abuse and neglect demonstrated by both parents in those cases, D.T., Jr., is an abused and neglected child[.]”

[¶ 8.] The trial court conceded in its memorandum opinion that, “the actions of [Parents] at the hospital ... would not be sufficient to support a finding of abuse and neglect by clear and convincing evidence.” It is undisputed that the child was adjudicated abused and neglected based on the history of abuse and neglect demonstrated by parents toward their other children. Father argues that this was error and urges reversal.

[¶ 9.] Father asserts that the legislature did not intend to allow courts to take judicial notice of prior terminations during the adjudicatory phase of the proceedings. In support of this assertion, Father cites SDCL 26-8A-26.1 and argues that it applies only to the dispositional phase of an abuse and neglect proceeding. SDCL 26-8A-26.1 provides in part that a court may find good cause exists for termination of parental rights when the parent “[h]as had parental rights to another child involuntarily terminated by a prior legal proceed-tag.” SDCL 26-8A-26.1 (5). Father is correct when he asserts that this statute applies only to the disposition phase of the proceedings. However, this is insufficient to show the trial court was not permitted to take judicial notice of the prior terminations in the adjudicatory phase. There is nothing in the statute that indicates that it was intended to limit the trial court’s discretion in determining whether and when to take judicial notice of prior terminations. Father provides no other statutory authority for his assertion regarding legislative intent nor has any authority been found.

[¶ 10.] Father’s assertion that case law does not permit the trial court to take judicial notice of prior terminations at the adjudicatory phase is equally unavailing. It is well settled that trial courts are permitted to take judicial notice of prior abuse and neglect adjudications. See e.g., J.A.H., 502 N.W.2d at 128; Matter of L.B., 416 N.W.2d 598, 599 (S.D.1987); Matter of R.Z.F., 284 N.W.2d 879, 881 (S.D.1979); In re K.D.E., 87 S.D. 501, 506, 210 N.W.2d 907, 910 (S.D.1978). In J.A.H., this Court reiterated, “[i]t is appropriate for the trial court to take judicial notice of earlier findings as to abuse and neglect.” J.A.H., 502 N.W.2d at 123 (internal citations omitted). Father argues that our holdings are strictly limited so that 1) the trial court may only take such notice at the dispositional phase; and 2) there must be specific incidents of physical or sexual abuse perpetrated upon D.T. in order for the cases to apply. Father relies on language in K.D.E. which provides,

[w]here the trial court has determined that neglect or abuse exists in regard to one child, it is within its discretion to determine the likelihood of abuse of other children in the same family. If such is likely to exist, then the court has the right to terminate any parental ties ... we cannot allow the health, safety or life of a young child to be placed back into an environment conclusively proved, as evidenced by the treatment of her brother (the prior adjudication), to be wholly unfit and improper.

K.D.E., 87 S.D. at 506, 210 N.W.2d at 910 (internal citations omitted). Father argues that because he was not asking for his son to be “placed back” with him at the adjudicatory hearing, the trial court erred in taking notice. The language and the facts of this Court’s holding in J.A.H., which was decided twenty years after K.D.E., make it clear that trial courts are permitted to take judicial notice of prior findings as to • abuse and neglect at the adjudicatory stage of the proceedings. In J.A.H., the child was taken from the mother shortly after birth and the State initiated abuse and neglect proceedings. J.A.H., 502 N.W.2d at 122. On State’s motion, the trial court took judicial notice of prior findings regarding the child’s siblings at the adjudicatory hearing. Id. This Court upheld the adjudication of abuse and neglect and stated,

[p]rior findings are relevant to the determination of whether abuse of other children in this same family is likely and this determination is within the discretion of the trial court.

J.A.H., 502 N.W.2d at 123 (additional citations omitted).

[¶ 11.] Father’s assertion that it was necessary to show specific instances of abuse against D.T. is unsupported by this Court’s precedent. This Court has upheld findings of abuse and neglect predicated upon evidence indicating potential harm to the child. See e.g., Interest of T.G., 1998 SD 54, ¶ 24, 578 N.W.2d 921, 924. Trial courts need not make a finding of specific instances of abuse before adjudicating a child abused and neglected. J.A.H., 502 N.W.2d at 123.

[¶ 12.] Finally, if the Court were to accept Father’s argument that judicial notice of prior terminations may only be taken diming the dispositional phase, the best interest of the children involved would not be served. Once a trial court determines that a child is not abused or neglected, the proceedings must end, and the child must be returned to the parents. If trial courts are not permitted to take notice of prior terminations, children will be returned to homes regardless of clear and convincing evidence from prior adjudications that parents are abusive and/or neglectful. This result would be untenable given the requirement that courts construe the child protection statutes liberally for the purpose of protecting children from abuse or neglect. See e.g. Matter of T.A., 2003 SD 56, ¶ 18, 663 N.W.2d 225, 232; D.H., 354 N.W.2d at 191 (additional citation omitted).

[¶ 13.] The trial court did not err in taking judicial notice of the prior terminations at the adjudicatory hearing.

ISSUE TWO

[¶ 14.] Whether the trial court erred in using the clear and convincing eviden-tiary standard to determine that termination of Father’s parental rights was in the child’s best interest.

[¶ 15.] Termination of parental rights is proper only when the court finds by clear and convincing evidence that termination is the least restrictive alternative in keeping with the child’s best interest. SDCL 26-8A-27. Father argues that the court erred in using the clear and convincing standard of proof because this case involves the Indian Child Welfare Act (ICWA) and the evidentiary standard is proof beyond a reasonable doubt. 25 U.S.C. § 1912(f). Father also argues that the State failed to meet the requirement of providing an expert to testify. Id.

[¶ 16.] ICWA applies only when the child involved is an “Indian child.” 25 U.S.C. 1903(4) defines “Indian child” as:

any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe

(emphasis supplied). The record contains a letter from the ICWA Director for the Crow Creek Sioux Tribe informing DSS that D.T. is not eligible for enrollment in the tribe. The applicability of ICWA is determined by eligibility for membership rather than enrollment with the tribe. Therefore, a statement that the child is not eligible for enrollment is insufficient evidence to find that ICWA does not apply unless the tribe’s constitution and bylaws equate membership with enrollment. Nonetheless, D.T. does not meet the statutory criteria. D.T. is not a member of a tribe and therefore subsection (a) does not apply. There is no evidence that either of the parents are members of a tribe and therefore subsection (b) does not apply. Furthermore, [i]t is incumbent upon the party asserting applicability of ICWA to prove the child meets the criteria under ICWA. In re A.S., 2000 SD 94, ¶ 13, 614 N.W.2d 383, 385 (citing In re J.D.B., 584 N.W.2d 577, 582 (Iowa Ct.App.1998); In re A.M., 235 Neb. 506, 455 N.W.2d 572, 573 (1990)). Father failed to come forward either here or before the trial court with evidence that D.T. meets the criteria. The trial court did not err in finding ICWA inapplicable or in using the clear and convincing evidentiary standard.

ISSUE THREE

[¶ 17.] Whether the trial court erred in finding that termination of Father’s parental rights was the least restrictive alternative.

[¶ 18.] The trial court may terminate parental rights if it is in the best interest of the child and if termination is the least restrictive alternative available. SDCL 26-8A-26. The best interest of the child must be viewed from the child’s, rather than the parents, perspective. Interest of E.D.J., 499 N.W.2d 130, 135 (S.D.1993) (additional citations omitted). We reverse only if the trial court was clearly erroneous in finding that termination was the least restrictive alternative. A.S., 2000 SD 94 at ¶ 19, 614 N.W.2d at 386 (citing In re J.Y., 502 N.W.2d 860, 862 (S.D.1993)).

[¶ 19.] Father argues that the trial court utilized the wrong standard for determining whether there was a less restrictive alternative because ICWA should apply. As noted above, the argument regarding ICWA is without merit.

[¶ 20.] These facts create a close question. While courts should be slow to terminate parental rights based solely on previous terminations, the child’s best interest must always prevail and there is a legitimate concern with preventing abuse. Interest of S.A.H., 537 N.W.2d 1, 5 (S.D.1995) (stating, “[germination proceedings are preventative as well as remedial”) (citing Interest of A.R.P., 519 N.W.2d 56, 61 (S.D.1994); Matter of B.E., 287 N.W.2d 91, 95 (S.D.1979)). It appears inevitable that if D.T. were returned to his parents’ home, he would be abused and neglected. There is little about the parents’ home, relationship, parenting abilities and abusive and neglectful tendencies that have changed since the first child was removed in 1996.

[¶ 21.] Father asserts that the evidence at the dispositional hearing showed that he had a good job, that he lived in an appropriate home containing the necessities for a baby and that he had no alcohol or drug problem. However, testimony at the dis-positional hearing indicated that Father lacked parenting skills and that it would take years for him to develop the necessary skills to raise a child. Even if Father would faithfully attend parenting classes— an assumption not supported by his previous behavior — there is still doubt that he will ever be able to effectively parent a child.

[¶ 22.] Father continues to reside with Mother, who had her rights terminated to all of her surviving children and who was unable to effectively parent D.T. or meet his psychological needs. Father knows Mother has violent and abusive tendencies, and there is a long and continuing history of domestic violence between Mother and Father. In fact, just days before the final hearing in this case, law enforcement was dispatched to parents’ home after Father “head-butted” Mother, pushed her, tackled and choked her and punched her until she kneed him in the groin and got away from him. Father was arrested. Despite continuing problems and consistent recommendations by DSS, Father persists in denying that he and Mother need to attend counseling. This Court has noted that where parents are living together, termination of the rights of only one parent serves no purpose because the child would still be living in a potentially injurious environment. Matter of L.M.T. 305 N.W.2d 399, 403 (S.D.1981). Even assuming Father did remove himself from this environment, his inability to recognize his problems, coupled with his inability to effectively parent, preclude the possibility of placing the child with him.

[¶ 23.] Although substantial services were offered to both parents, they consistently failed to follow through. We will not force the child to wait for his parents to acquire parenting skills that may never develop. Matter of J.Y., 502 N.W.2d 860, 861 (S.D.1993) (citing Interest of A.D., 416 N.W.2d 264, 268 (S.D.1987)). The trial court was bound to consider the best interest of the child. Placing the child with Father would expose him to the abuse perpetrated by parents on the other children, and would prevent the child from receiving proper parental care. In the best interest of the child, there was no less restrictive alternative. The child needed to be placed in a stable, nurturing environment which Father cannot provide. Anything short of termination would deny the child the stability and care he needs.

[¶ 24.] Father has failed to show that the trial court erred in finding abuse and neglect and terminating his parental rights. The trial court is affirmed.

[¶ 25.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . Darvocet is a pain reliever with codeine. One side effect of the drug can be drowsiness.

      . Although Mother was still taking Darvocet at the time the baby fell, it should be noted that Mother had been warned of the danger of sleeping with the infant in her bed. Before the child was born, a DSS worker visited with Mother twice about the fact that Parents had not obtained a crib for the baby. The worker testified that she warned mother about the danger of sleeping with an infant in the bed, but Mother insisted that just as her other children had slept with her, so would D.T.

      . This Court summarily affirmed this termination in Interest of C.T. on May 21, 2002.

      . The trial court found that the same problems persisted in Parents’ lives:
      1) inappropriate or no housing, insufficient finances, inappropriate care of the children and domestic abuse;
      2) even with intensive services, Mother's parenting skills declined prior to the 1996 termination;
      3) Mother and Father were married but lived together sporadically and Father appeared at several meetings with black eyes inflicted by Mother;
      4) psychological evaluations of Parents indicate it would take years of intensive individual and family therapy before either Parent could effectively parent a child.

      . The findings of fact from the dispositional hearing indicate:
      1)the first time Parents attended parenting classes, the classes had to terminate early due to domestic violence issues between Parents;
      2) the second time they attended parenting classes, they completed the classes but the instructor testified;
      a) Parents could not understand the material even when provided individual instruction;
      b) Parents displayed difficulty with hygiene, anger control, nutrition and knowing when a child should sleep;
      c) Mother indicated that if another child should take one of her children’s toys, she would tell the child to make sure no one was looking and then hit the other child;
      d) apparently both parents were physically abused as children.
      3) Both parents attended the Rape and Domestic Abuse Center and testimony indicated:
      a) Parents seemed unwilling to make any changes;
      b) Mother admitted hitting Father after she had been in the program for some time;
      c) neither parent appeared to have any insight into their problems;

        d) counselors had poor prognosis for both parents;
      e) Father only attended because DSS told him to and he did not complete the classes;
      f) Father displayed problems with anger control, failed to take responsibility for his actions and was unable to identify inappropriate behavior;
      g) Mother completed classes but was referred to further counseling due to issues with anger control and inability to implement the skills she had learned;
      h) Mother did not receive the additional counseling.


author: ZINTER, Justice

text:
    2003 SD 86
    George D. JOHNSON and Johnson Ford Lincoln-Mercury, Inc., Plaintiffs and Appellees, v. Lawrence COSS, Defendant and Appellant.
    No. 22556.
    Supreme Court of South Dakota.
    Argued April 30, 2003.
    Decided July 23, 2003.

      Kenneth E. Barker, John W. Burke of Barker, Wilson, Reynolds & Burke, LLP, Belle Fourche, South Dakota, Attorneys for plaintiffs and appellees.
    Robert B. Anderson of May, Adam, Gerdes and Thompson, Pierre, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice

[¶ 1.] Lawrence Coss entered into an agreement to purchase. George Johnson’s, auto dealership. The agreement was conditioned on Ford Motor Company’s transfer of its franchise from Johnson to Coss. After several months, Coss notified both Johnson and Ford that the agreement could not be completed because Coss could not meet Ford’s franchise transfer requirements. Johnson subsequently commenced this action for breach of contract and breach of the covenant of good faith and fair dealing. The circuit court granted summary judgment for Johnson reasoning that Coss’s actions prevented Ford’s transfer of the franchise. Coss appeals. Because we find material issues of disputed fact relating to the cause of the failure to transfer the franchise, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On January 7, 2000, Johnson and Coss entered into an Asset Purchase Agreement for thé sale of Johnson Ford Lincoln-Mercury, Inc. The sale included the dealership assets, the real estate upon which the car business was located, as well as the inventory, parts, and other related items.

[¶ 3.] The agreement was expressly conditioned upon Ford Motor Company’s approval of the transfer of the Ford franchise from Johnson to Coss. Paragraph 16 of the agreement provided:

All transactions described in this agreement are subject to the consent and approval of Seller’s franchisor, Ford Motor Company, and any of its subsidiaries or member companies. Transfer, or written approval of transfer, of the Ford Lincoln-Mercury franchise, is a condition precedent to closing of the transactions herein. In the event the consent and approval of Ford Motor Company or any other entity necessary to approve and effectively transfer the Ford Lincoln-Mercury franchise to Purchaser is not obtained, then this transaction in its entirety and this agreement in its entirety is null and void.

Paragraph 17 of the agreement also conditioned the agreement on: “[rjeceipt of the consent and approval [sic] the Corporation’s franchisor, Ford Motor Company, in regard to the transfer of the Corporation’s Ford Lincoln-Mercury franchise to Purchaser[.]”

[¶ 4.] Coss hired Steven Grodahl, an attorney and CPA, to assist Coss with the franchise transfer. According to Grodahl’s affidavit in opposition to Johnson’s motion for summary judgment, Ford identified several requirements that Coss needed to satisfy before Ford would approve the transfer. Those requirements included an on site manager that was approved by Ford. That manager was required to demonstrate, to Ford’s satisfaction, the ability to operate a dealership successfully. The manager was also required to own a substantial interest in the business.

[¶ 5.] Viewing the facts most favorably to Coss as we must do on summary judgment, Grodahl indicated that Ford would not approve Coss as the manager/co-owner. Because Ford would not transfer the franchise if Coss were the sole owner, Coss decided that the success of the agreement depended upon finding a manager willing to run the day-to-day operations of the dealership. That person would also have to acquire a substantial ownership in the business.

[¶ 6.] Mark Goodrich was identified as such a manager/co-owner. Originally, Coss proposed a 50/50 ownership arrangement with Goodrich and a joint capitalization of $1 million. However, Ford indicated that they required a majority owner. Pursuant to that requirement, Coss revised the plan so that he would own 50.1% of the dealership. In addition to the ownership requirements, Ford required that the potential owners develop a New Dealer Operating Plan, and that each owner submit personal and financial information. Ford further advised that it would require an initial capitalization of $1,476 million instead of the $1 million Coss had initially proposed.

[¶ 7.] Grodahl’s. affidavit indicates that despite Coss’s attempts to comply with these requirements, Coss could not meet them. Although it is undisputed that Ford did not issue a written denial of the transfer after a formal request by Coss, Gro-dahl asserted that it became clear after several conversations with Ford representatives that they would refuse to approve the transfer to Coss if a formal request were made. Consequently, Grodahl sent letters to Ford and Johnson informing them that, because Coss could not meet Ford’s requirements, the agreement was null and void under paragraph 16.

[¶ 8.] After receiving Grodahl’s letter, Johnson commenced this action against Coss. Johnson filed a motion for partial summary judgment on Count 1 (breach of contract) and Count 2 (breach of the covenant of good faith and fair dealing). Coss filed a cross motion for summary judgment. After a hearing, the circuit court granted partial summary judgment in.-favor of Johnson and denied judgment for Coss. The circuit court reasoned that: “the agreement was not performed and the transaction was not consummated according to its terms ‘due to an act of the Purchaser,’ and was not a result of the denial of the application by Ford Motor Co.” Coss appeals questioning:

1. Whether the circuit court erred in finding that the failure of the parties to complete the agreement was due to an act of Coss thereby rejecting Coss’s argument that the unsatisfied condition precedent barred Johnson’s claims.
2. Whether the circuit court erred in failing to grant summary judgment to Coss, dismissing Johnson’s complaint.

[¶ 9.] We conclude that genuine issues of material fact exist as to the cause of the failure to transfer the Ford franchise. Because this dispute of fact precludes summary judgment for both parties, we reverse and remand on Issue 1, and we affirm on Issue 2.

STANDARD OF REVIEW

[¶ 10.] Our standard of review concerning the grant or denial of a summary judgment is well settled.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party[,] and reasonable doubts should be.resolved against the moving party.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.

Braun v. New Hope Tp., 2002 SD 67, ¶ 8, 646 N.W.2d 737, 739 (quoting South Dakota State Cement Plant Com’n v. Wausau Underwriters Ins. Co., 2000 SD 116, ¶ 9, 616 N.W.2d 397, 400-01).

DECISION

[¶ 11.] Summary judgment is precluded because there are material issues of disputed fact relating to the cause of the failure to consummate the agreement.

[¶ 12.] The dispositive issue in this appeal is whether the condition precedent (Ford’s approval of the franchise transfer) failed because of an act for which Coss was legally responsible, or because of a discretionary act of Ford Motor Co. Johnson argues that Coss is prevented from relying on the failed condition precedent because Coss failed to perform the acts reasonably necessary to obtain a transfer of the franchise. On the other hand, Coss argues that he made sufficient efforts to obtain Ford’s approval, but that it became apparent he could not meet all of Ford’s requirements. Coss contends that because the conditions imposed by Ford could not be met, the condition precedent failed, and the failed condition bars Johnson’s breach of contract claims.

[¶ 13.] “[I]t is a general principle of contract law that failure of a condition precedent ... bars enforcement of the contract.” Farmers Feed & Seed, Inc. v. Magnum Enterprises, Inc., 344 N.W.2d 699, 701 (S.D.1984) (further citations omitted). A condition precedent is a contract term distinguishable from a normal contractual promise in that it does not create a right or duty, but instead is a limitation on the contractual obligations of the parties.

A condition precedent is a fact or event which [sic] the parties intend must exist or take place before there is a right to performance.... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor.... If the condition is not fulfilled, the right to enforce the contract does not come into existence.

13 Richard A. Lord, Williston on Contracts, § 38:1 (4th ed.2000), see also Bublitz v. State Bank of Alcester, 369 N.W.2d 137 (S.D.1985) (holding a contract unenforceable because a stated condition precedent failed to occur).

[¶ 14.] Ford held the ultimate right to determine if the condition precedent was fulfilled by approval of the franchise transfer. By affidavit opposing summary judgment, Grodahl stated that the terms and conditions imposed by Ford could not be met. However, Johnson argues, and the circuit court concluded, that under the prevention doctrine, the failure of the condition precedent was caused by Coss, and therefore, Coss should be prevented from relying on the unfulfilled condition.

[¶ 15.] “The prevention doctrine ... operates as an exception to the general rule that one has no duty to perform under a contract containing a condition precedent until the condition occurs.” Williston § 39:4; see also Moore Brothers Co. v. Brown & Root, Inc., 207 F.3d 717, 725 (4th Cir.2000). “[Prevention is similar to the concept of ‘waiver by estoppel’ in the context of excuses for nonperformance of contractual duties. An individual who prevents the occurrence of a condition may be said to be ‘estopped’ from benefiting from the fact that the condition precedent to his or her obligation failed to occur.” Williston § 39:7. As the Restatement (Second) of Contracts explains:

Where a duty of one party is subject to the occurrence of a condition, the additional duty of good faith and fair dealing imposed on him ... may require some cooperation on his part, either by refraining from conduct that will prevent or hinder the occurrence of that condition or by taking affirmative steps to cause its occurrence.... [N]on-performance of that duty when performance is due is a breach.... [I]t has the further effect of excusing the non-occurrence of the condition itself, so that performance of the duty that was originally subject to its occurrence can become due in spite of its non-occurrence.

Restatement (Second) of Contracts § 245 cmt. (a) (1981). Similarly, Williston explains that if a party to a contract hinders the occurrence of a condition precedent, that condition is waived.

If a promisor prevents or hinders the occurrence or fulfillment of a condition to his or her duty of performance, the condition is excused. In other words, “the nonoccurrence or nonperformance of a condition is excused where the failure of the condition is caused by the party against whom the condition operates to impose a duty.” Accordingly, the liability of the promisor is fixed regardless of the failure to fulfill the condition.

Williston, § 39:4. (citing Rohde v. Massachusetts Mut. Life Ins. Co., 632 F.2d 667 (6th Cir.1980)). “The prevention doctrine does not require proof that the condition would have occurred ‘but for’ the wrongful conduct of the promisor; instead it only requires that the conduct have ‘contributed materially’ to the non-occurrence of the condition.” Moore Brothers, 207 F.3d at 725. “Whether interference by one party to a contract amounts to prevention so as to excuse performance by the other party and constitute a breach by the interfering party is a question of fact to be decided by the jury under all of the proved facts and circumstances.” Williston, § 39:3.

[¶ 16.] Because this is a summary judgment under review, the question then is whether there are genuine issues of material fact whether Coss contributed materially to the failure of the condition. According to Grodahl’s affidavit, one of Ford’s requirements for transfer of the franchise was that the dealership be managed and operated by a person who could run the business, on site, on a day-to-day basis. That person had to demonstrate, to Ford’s satisfaction, the ability to manage a dealership successfully. That person also had to have a substantial ownership interest in the business. According to Grodahl, Ford indicated that Coss was not acceptable or qualified for these purposes. Therefore, to satisfy the agreement’s conditions precedent, it was reasonably necessary for Coss to locate a manager/co-owner who could meet Ford’s requirement.

[¶ 17.] Although the trial court did not believe that Coss could rely on the Goodrich co-ownership arrangement to satisfy the condition precedent, that manager/co-owner contingency was envisioned by the agreement. Even before the agreement’s execution, the parties were aware that Ford would require someone other than Coss to be the on-site manager. Consequently, in October 1999, Coss identified Goodrich as a potential co-owner and manager. In fact, Coss produced an October 25, 1999 letter from Coss’s attorney to Goodrich outlining the potential co-owner relationship between Coss and Goodrich. That October letter emphasized that the “entire series of transactions [was] all contingent on Ford approving the transfer of the franchise.” At that time, Coss proposed that he and Goodrich would each own a 50% interest in the business, and each would contribute $500,000 toward its initial capitalization.

[¶ 18.] However, following the execution of the agreement, Ben Waite, a Ford District Representative, advised Grodahl that Ford would not approve the ownership arrangement expressed in the October letter to Goodrich. Waite stated that one of the owners had to have a majority interest in the business. Pursuant to this requirement, Coss revised the plan so he would be the majority owner with the 50.1% interest in the business.

[¶ 19.] However, Waite also advised Grodahl that Ford required an initial capitalization of $1,476 million instead of the contemplated $1 million. According to Grodahl, even after this added capitalization requirement, Coss continued to work towards the consummation of the transaction and was willing to satisfy that requirement. Coss established a new South Dakota corporation called “21st Century Motor Company, Inc.” to operate the business. Coss also submitted his completed personal and financial information. Waite later advised Grodahl that the information provided was sufficient for Ford’s purposes.

[¶ 20.] Ultimately, however, Coss asserts that he could not comply with all of Ford’s requirements for the franchise transfer. According to the Grodahl affidavit, “Ford imposed requirements relating to ownership and capitalization that Mark Goodrich and Lawrence Coss were unable to meet to Ford’s satisfaction.” Although there was no written rejection from Ford, Grodahl’s affidavit asserted that Waite had verbally advised him of the requirements from which Ford would not deviate. The alleged fact that Coss, working with Goodrich, could not meet these requirements, led Coss to the conclusion that the conditions could not be met. We believe that these alleged facts were sufficient to create genuine issues of dispute whether Coss spent sufficient time, energy, and expense to satisfy the condition precedent. Under those circumstances, a trier of fact must determine whether Coss’s conduct contributed materially to the failure to obtain Ford’s approval.

[¶ 21.] Johnson, however, argues that the Grodahl affidavit and attorney letter were inadmissible parol evidence. Johnson relies on SDCL 53-8-5 and Stromberg v. Smith, 423 N.W.2d 107 (Minn.Ct.App.1988). Under those authorities, parol evidence cannot be used to show the substance of the parties’ agreement absent an ambiguity. However, in this case, Grodahl’s affidavit and the letter were not offered to establish or change the substance of the agreement. Instead, they were offered to demonstrate Coss’s conduct relating to the franchise transfer after execution of the contract. Such conduct occurring after the execution of a contract is not excluded by the parol evidence rule. Hofeldt v. Mehling, 2003 SD 25, ¶ 11, 658 N.W.2d 783, 787.

[¶ 22.] Johnson finally argues that Coss’s failure to deposit $100,000 into an escrow account, as required by paragraph 9 of the agreement, demonstrates Coss’s abandonment of the contract from the very beginning. However, Coss submitted evidence indicating that a check for that amount was outstanding. Moreover, even if there was a total failure to tender $100,000, that failure was only some evidence of Coss’s abandonment of the contract, and Grodahl’s affidavit raised other facts indicating that Coss did not intend to abandon the contract. Therefore, Coss’s showing was sufficient to preclude summary judgment. Any alleged abandonment must ultimately be determined by trial.

[¶ 23.] Because Coss raised disputed issues of material fact concerning the cause of the failure of the condition precedent, we reverse the summary judgment and remand for further proceedings.

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

      . Johnson contracted individuálly and as the sole shareholder of Johnson Ford Lincoln Mercury, Inc.

      . Johnson indicated that if the circuit court granted summary judgment on these two the-ones, the decision would dispose of Johnson's remaining counts. Because the circuit court granted summary judgment, we only consider the breach of contract related theories.

      . The record suggests there may have been some problem between Coss and Goodrich finalizing their agreement.

      . SDCL 53-8-5 provides:
      The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.


author: LARSON, Justice.

text:
    Carol WALTHART, Appellant, v. BOARD OF DIRECTORS OF EDGEWOOD-COLESBURG COMMUNITY SCHOOL DISTRICT, Appellee.
    No. 02-0249.
    Supreme Court of Iowa.
    June 11, 2003.
    Rehearing Denied Aug. 28, 2003.
    'William R. Unger, Des Moines, for appellant.
    Jim D. DeKoster and Beth E. Hansen of Swisher & Cohrt, P.L.C., Waterloo, for appellee.
   LARSON, Justice.

Carol Walthart was a teacher in the Edgewood-Colesburg Community School District until she was terminated by the board of directors of the district under the provisions of Iowa Code sections 279.13-18 (1999). She appealed to an adjudicator under Iowa Code section 279.17 and also brought this separate action in certiorari, claiming her termination was illegal.

The defendant school district moved to dismiss the certiorari petition on the grounds that the board’s action was not final, and the statutory appeal, to an adjudicator was her sole remedy. The motion to dismiss was denied, but the district court later ruled against the plaintiff on the merits of her certiorari claim. We conclude the board’s action was not final, and further, a teacher’s appeal to an adjudicator under section 279.17 is the teacher’s sole remedy. We therefore affirm.

I. Facts and Prior Proceedings.

In September 2000 students of Edge-wood-Colesburg High School (EDCO) gathered in a hayfield on property owned by the plaintiff and her husband. The Waltharts’ son, Mark, a senior at EDCO, was there. There is a dispute in the record as to whether the Waltharts knew that alcohol was being consumed at the party. Carol Walthart, the plaintiff, took ignition keys from some of the students’ cars to keep them from hitting sinkholes in an adjoining field and to prevent them from going into town and getting into trouble. Four students who had attended the party were killed when their car hit a tree. The driver and two passengers had significant amounts of alcohol in their blood.

Carol Walthart had been a teacher in the EDCO district for eighteen years. On October 13, 2000, the EDCO superintendent gave Walthart written notice that he was recommending her contract with the school district be terminated pursuant to Iowa Code chapter 279. He gave the following reasons:

Unprofessional conduct in allowing students to use teacher’s property for a party where alcohol was illegally used by students, failure to effectively monitor a party on teacher’s property wherein student alcohol consumption contributed to the death of several students, failure to protect the safety and welfare of students, inability to be effective as a teacher, poor role model, poor and ineffective leadership.

The plaintiff filed a timely request for a private hearing under Iowa Code sections 129.15 and .16. The school board held a termination hearing on November 3 and 4, 2000. Deliberation continued at a special session on November 13, 2000. At the close of that meeting, a roll call vote was taken in an open session on a motion that the plaintiffs contract be terminated immediately. The motion carried unanimously.

Following the board’s vote to terminate her, the plaintiff filed a notice of appeal to an adjudicator, under Iowa Code section 279.17, claiming the termination violated statutory and constitutional provisions; was in excess of the statutory authority of the board; violated board rules, policies, and contracts; was made under unlawful procedures; was affected by errors of law; was unsupported by a preponderance of competent evidence; and was unreasonable, arbitrary, capricious, and an abuse of discretion.

The plaintiff also filed this certiorari action to assert matters she contends could not effectively be raised in a statutory appeal. She contends:

Carol Walthart is without any legal remedy on appeal [under section 279.17] because the question on appeal is whether the findings of fact and conclusions of law of the school board based on the record made before the school board [were supported], because the adjudicator is not empowered to hear additional evidence and the adjudicator and courts in the Chapter 279 appeal process are not empowered to consider the acts of the school board after the hearing record is closed. Forcing a teacher to base her appeal based on findings of fact that violate the law would result in irreparable harm to Carol Walthart.

We do not address the substantive issues raised in the certiorari case because, for the reasons to be discussed, we conclude the district court did not have jurisdiction to adjudicate them.

The defendant raised subject matter jurisdiction in a motion to dismiss, claiming (1) certiorari was not available because the board’s action was not final, and (2) the appeal to an adjudicator under section 279.17 was her exclusive remedy. The district court, through Judge Alan Pearson, denied the motion to dismiss and ordered the issuance of the writ. The board filed its return to the writ. At trial Judge George Stigler ruled that the board had not acted illegally and annulled the writ. In view of this disposition, Judge Stigler ruled it was not necessary to decide the subject matter jurisdiction issue.

II. Disposition.

A. The finality argument. The board first argues that its decision was not final for the purpose of certiorari. It contends that, reading sections 279.16, .17, and .18 together with regard to appeals to an adjudicator and then to the court, the decision of the board does not become final until ten days after the decision of the adjudicator, if neither party rejects that decision.

The plaintiff does not dispute the need for finality as a condition precedent to certiorari, but she argues that the board’s action was final because Iowa Code section 279.16 provides that “[w]ithin five days after the private hearing the board shall, in executive session, meet to make a final decision upon the recommendation and evidence as herein provided.” This Code section, however, does not say that the result of the executive session will necessarily be a final decision; it merely provides the board shall meet for that purpose. As the board notes, the third unnumbered paragraph of section 279.17 contemplates that actual finality will occur at a later time. For example,

[1]f the teacher does not timely request an appeal to an adjudicator the decision, opinion, or conclusion of the board shall become final and binding.

Here, the plaintiff did appeal to an adjudicator, so this provision does not make the board’s decision final at that point. The last unnumbered paragraph of section 279.17 provides that

[t]he decision of the adjudicator shall become the final and binding decision of the board unless either party within ten days [of the adjudicator’s decision] notifies the secretary of the board that the [adjudicator’s] decision is rejected.

Thus, under section 279.17, the action of the board becomes final (1) if a teacher does not appeal to an adjudicator within ten days of the “determination of the board,” Iowa Code § 279.17 (first numbered paragraph); or (2) if an adjudicator appeal is taken, the adjudicator’s decision is filed, and neither party rejects it within ten days, Iowa Code § 279.17 (final unnumbered paragraph). None of these conditions existed here; the plaintiff did appeal to an adjudicator, and there was no decision of the adjudicator rejected by either party. (In fact, the record in this case does not show the adjudicator had even acted on it.)

We conclude the board’s actions cannot be challenged in certiorari until they become final, and in this case, that had not occurred.

B. Preemption issue. The board also argues that the appeal to an adjudicator provided in the teacher-termination statute is the plaintiffs sole remedy. In relevant part, Iowa Code section 279.17 provides this with respect to appeals in teacher-termination cases:

If the teacher is no longer a probationary teacher, the teacher may, within ten days, appeal the determination of the board to an adjudicator by filing a notice of appeal with the secretary of the board. The notice of appeal shall contain a concise statement of the action which is the subject of the appeal, the particular board action appealed from, the grounds on which relief is sought and the relief sought.

Iowa Code § 279.17. This section directs the board to forward the record of its proceedings to the adjudicator and also provides that

application may be made to the adjudicator for leave to present evidence in addition to that found in the record of the case. If it is shown to the adjudicator that the additional evidence is material and that there were good reasons for failure to present it in the private hearing before the board, the adjudicator may order that the additional evidence be taken before the board upon conditions determined by the adjudicator. The board may modify its findings and decision in the case by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions, with the adjudicator and mail copies of the new findings or decisions to the teacher.
The adjudicator may affirm board action or remand to the board for further proceedings. The adjudicator shall reverse, modify, or grant any appropriate relief from the board action if substantial rights of the teacher have been prejudiced because the board action is:
1. In violation of a board rule or policy or contract; or
2. Unsupported by a preponderance of the competent evidence in the record made before the board when that record is viewed as a whole; or
3. Unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

Id. Section 279.17 provides that either side may reject the adjudicator’s decision, and section 279.18 provides for review by the district court.

The plaintiff acknowledges that she has a right to a statutory appeal under section 279.17 (and in fact she did appeal), but she claims that remedy is inadequate. She argues that, because the board controls the content of the record of the board’s proceeding that is to be forwarded to the adjudicator, a complete picture could not be presented in a statutory appeal. Much of the plaintiffs case is based on events bearing on the board’s decision that occurred outside the formal hearing, such as the alleged involvement by the board’s attorney in the decision-making process.

We do not believe this is a valid objection to the appeal process under section 279.17 because the statute provides adequate opportunities for Walthart to supplement the board record. However, the key issue is what the legislature intended in enacting section 279.17. Was it to provide an exclusive means of challenging the board’s action or was it merely a cumulative remedy as the plaintiff argues? In Younker Brothers, Inc. v. Zirbel, 234 Iowa 269, 12 N.W.2d 219 (1943), a property-tax case, we stated the test for determining if certiorari was available to challenge an assessment:

Since the appellant had a right to protest the action of the Board [of Review] ... in increasing the assessments, and to appeal from the Board’s order in refusing to accede to the protest, it was thereby afforded a plain, speedy and adequate remedy. Certiorari is therefore not available to it.

Id. at 276, 12 N.W.2d at 223-24; accord 14 Am.Jur.2d Certiorari § 18, at 640-41 (2000) (“Generally, a writ of certiorari will not issue if there is another adequate remedy, such as an appeal or writ of error, an action at law or in equity....”). Now, however, the scope of certiorari has been expanded by Iowa Rule of Civil Procedure 1.1403 (formerly rule 308), which provides:

The writ shall not be denied or annulled because plaintiff has another plain, speedy or adequate remedy; but the relief by way of certiorari shall be strictly limited to questions of jurisdiction or illegality of the acts complained of, unless otherwise specially provided by statute.

Now, under rule 1.1403, an available remedy such as an appeal will not necessarily prevent an action in certiorari. Rather, the question becomes whether a statutory remedy is exclusive or merely cumulative, and that turns on legislative intent. The general rule is that,

[w]here a statute prescribing a remedy does not create a new right or liability, but merely provides a new remedy for an independent right or liability already existing, the general rule is that the remedy thus given is not regarded as exclusive but as merely cumulative of other existing remedies, and does not take away a preexisting remedy, or, as more specifically stated, if a statute gives a new remedy in the affirmative, and contains no negative, express or implied, of the old remedy, the new remedy is merely cumulative.

1A C.J.S. Actions .§ 14, at 338 (2002).

In Van Baale v. City of Des Moines, 550 N.W.2d 153 (Iowa 1996), we ruled that a statutory appeal preempted a suit for damages. Van Baale, a police officer, was discharged by the city. He challenged his discharge before the civil rights commission, where he lost. On judicial review, the district court upheld the discharge, and the court of appeals affirmed. Van Baale, 550 N.W.2d at 155. Prior to the court of appeals decision, Van Baale filed a suit for damages against the city, which filed a motion to dismiss. We noted “[c]hapter 400 is silent on whether its remedy is or is not exclusive,” but we noted that “silence on the subject renders the matter ambiguous and requires us to proceed under the rules of statutory construction.” Id. (citing Goebel v. City of Cedar Rapids, 267 N.W.2d 388, 392 (Iowa 1978)). In attempting to determine legislative intent on the preemption issue, we said:

Among the most venerable of the canons of statutory construction is the one stating that a statute should be given a sensible, practical, workable, and logical construction. According to another rule, when a statute grants a new right and creates a corresponding liability unknown at common law, and at the same time points to a specific method for enforcement of the new right, this method must be pursued exclusively....
We note and approve the following variation of the rule: “Where the legislature has provided a comprehensive scheme for dealing with a specified kind of dispute, the statutory remedy provided is generally exclusive.”

Van Baale, 550 N.W.2d at 155-56 (quoting 1A C.J.S. Actions § 14 n. 55 (1985)). We concluded, with respect to preemption:

Chapter 400 creates a new right to continued employment (subject only to removal for cause) that did not exist at common law where public employment was at-will. Because chapter 400 creates this new right — not merely a new remedy for a preexisting one — we think chapter 400 proceedings must be considered the exclusive means of challenging the arbitrariness of a civil service employee’s discharge.

Van Baale, 550 N.W.2d at 156.

The right to appeal a board’s termination to an adjudicator was part of a major overhaul of teacher-termination law. See Bruton v. Ames Cmty. Sch. Dist., 291 N.W.2d 351, 352 (Iowa 1980) (“In 1976 the General Assembly enacted a statute which ‘completely revised the procedure for terminating school teachers’ contracts.’ ”) (quoting Bd. of Educ. v. Youel, 282 N.W.2d 677, 678 (Iowa 1979)). See 1976 Iowa Acts ch. 1151, §§ 279.13-.19.

Applying the rationale of Van Baale to this case, we believe these statutory changes provided a new right in the form of more protection for teachers in termination proceedings, and the remedy provided — an appeal to an adjudicator — must be considered the exclusive remedy. See Van Baale, 550 N.W.2d at 156; 1A C.J.S. Actions § 14, at 338 (2002).

Much of chapter 279, including the appeal provisions of section 279.17, was new in 1976. Prior to that revision, a teacher had few rights in challenging a termination for cause, as compared to the present provisions of chapter 279. In the 1975 Code, this was the procedure for a termination for cause:

The board may, by a majority vote, discharge any teacher for incompetency, inattention to duty, partiality, or any good cause, after a full and fair investigation made at a meeting of the board held for that purpose, at which the teacher shall be permitted to be present and make defense, allowing him a reasonable time therefor.

Iowa Code § 279.24 (1975). The extensive rights now accorded to teachers, including the right to an appeal to an adjudicator, were not known prior to the 1976 Act.

It is true we have recognized certiorari as an available remedy in a teacher-termination case postdating the 1976 legislation. See Stafford v. Valley Cmty. Sch. Dist., 298 N.W.2d 307 (Iowa 1980). Stafford, however, involved the narrow issue of whether the teacher was probationary or nonprobationary for purposes of a section 279.17 appeal. (Under that section, a probationary teacher cannot appeal to an adjudicator.) We ruled the plaintiff could challenge the board’s classification of her as a probationary teacher in a certiorari action. Stafford, 298 N.W.2d at 310. The teacher in Stafford did not attempt to use certiorari as a substitute for the statutory appeal.

We conclude the board’s action was not final for certiorari purposes, and in any event, the appeal under section 279.17 was the plaintiffs sole remedy.

AFFIRMED.


text:
    Mike SMITH, Relator, v. QUEBECOR PRINTING, INC., and Kemper National Insurance Companies, Respondents, and Minneapolis Orthopedic and Arthritis Institute, Blue Cross/Blue Shield, Midas Recovery (Standard Insurance), MN Department of Labor & Industry/VRU, MN Department of Human Services, and Abbott Northwestern Hospital, Intervenors.
    No. A03-291.
    Supreme Court of Minnesota.
    Aug. 15, 2003.
    Brian Thomas Mak, St. Paul, for relator.
    E.C. Michael Forde, Aafedt, Forde, Gray & Monson, Minneapolis, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 19, 2003, be, and the same is, affirmed without opinion.

See Minn. R. CivApp. P. 136.01.

BY THE COURT:

/s/ Russell A. Anderson Associate Justice.