author: KAPSNER, Justice.

text:
    2005 ND 36
    Joan MANN, Ken Danks d/b/a TEK Industries, Tracy Wilkie, Christa Monette, and other persons similarly situated, Plaintiffs, Appellants and Cross-Appellees v. ND TAX COMMISSIONER, Rick Clayburgh, Defendant, Appellee and Cross-Appellant and ND Treasurer, Kelly Schmidt, Defendant.
    No. 20040174.
    Supreme Court of North Dakota.
    Feb. 16, 2005.

      Vance Gillette, Minot, N.D., for plaintiffs, appellants and cross-appellees.
    Daniel Lucian Rouse (argued), and Robert W. Wirtz (appeared), Special Assistant Attorneys General, Tax Department, Wayne K. Stenehjem (on brief), Attorney General, Office of Attorney General, Bismarck, N.D., for defendant, appellee, and cross-appellant.
   KAPSNER, Justice.

[¶ 1] Joan Mann, Ken Danks, doing business as TEK Industries, Tracy Wilkie and Christa Monette (“plaintiffs”) appealed from a district court order denying reconsideration of an earlier memorandum opinion and order, and from that earlier memorandum opinion and order dismissing all named plaintiffs except Danks from their action against the State Tax Commissioner and the State Treasurer (“State”) seeking a permanent injunction barring imposition of state motor vehicle fuels excise taxes on Native Americans in certain North Dakota Indian reservations and seeking a refund of the taxes already paid. The State cross-appealed from the order denying reconsideration of the district court’s earlier memorandum opinion and order holding the State may not impose the motor vehicle fuels excise tax on Native Americans in those Indian reservations and issuing a permanent injunction prohibiting collection of the taxes on the reservations. The State also cross-appealed from findings of fact, conclusions of law and order for judgment declaring the tax illegal when imposed on Native Americans in those reservations. Under the circumstances, we conclude we do not have jurisdiction to consider the appeals. We further conclude the exercise of our supervisory jurisdiction is not appropriate under the circumstances. We dismiss the appeals.

I

[¶ 2] The plaintiffs are Native Americans. Mann is a member of the Three Affiliated Tribes, owns Mann Enterprises, and lives on the Fort Berthold Indian Reservation. Danks is also a member of the Three Affiliated Tribes, owns TEK Industries, and lives on the Reservation. Wilkie and Monette are members of the Turtle Mountain Band of Chippewa Indians and reside on the Turtle Mountain Reservation.

[¶ 3] In August 2003, the plaintiffs sued the State under federal and state law seeking a declaration that it is illegal for the State to impose the 21 cent motor vehicle fuels tax under N.D.C.C. ch. 57-43.1 on fuel they purchased on their respective reservations and demanding a refund of the taxes they had already paid. They also sought to have the action certified as a class action. The State moved to dismiss, alleging insufficient service of process and lack of compliance with the notice-of-claim provision, N.D.C.C. § 32-12.2-04. The plaintiffs moved for declaratory and injunctive relief and requested a permanent injunction barring imposition of the motor vehicle fuels tax on their reservations. The State responded and argued that the motor vehicle fuels tax could lawfully be imposed on the plaintiffs’ Indian reservations under the terms of the Hayden-Cartwright Act, 4 U.S.C. § 104. On January 12, 2004, the district court, in a memorandum opinion and order, rejected the State’s argument that the tax was authorized by the Hayden-Cartwright Act, ruled “[a]s a matter of law, the motor fuels tax imposed pursuant to N.D.C.C. § 57-43.1-02 is declared by the Court to be illegally imposed on Native Americans who reside on North Dakota Indian reservations and purchase motor fuel on reservation lands,” and granted a permanent injunction prohibiting “collection of the illegal motor fuels tax.” The district court dismissed the plaintiffs’ federal claims and dismissed, without prejudice, all of the plaintiffs from the action except Danks because he had claimed a refund of taxes paid from the State and was “the only Plaintiff who has complied with N.D.C.C. § 32-12-03.” The court reserved the questions on class certification and refunds until a later date.

[¶ 4] On January 23, 2004, the State moved for “reconsideration” of the court’s January 12 order, arguing it was “denied the opportunity to file an Answer to the Original Complaint” and was “not given an opportunity to address the merits of their case before the Court.” The State also sought a stay of the court’s order pending appeal. On January 27, 2004, the plaintiffs also filed a motion for reconsideration challenging the dismissal of the federal claims and of all plaintiffs except Danks. They also moved for refunds and for certification of the class action. On April 29, 2004, the court denied the State’s motion for reconsideration, but granted its request for a stay pending appeal. The court also denied the plaintiffs’ motion for reconsideration and postponed determination of refunds and class certification. The court consolidated its rulings in “findings of fact, conclusions of law and order for judgment” dated April 29, 2004, and filed on May 7, 2004. Although the document concludes, “LET JUDGMENT BE ENTERED ACCORDINGLY,” no judgment has been entered.

[¶ 5] The plaintiffs appealed from the April 29 order denying their motion for reconsideration and from the January 12 memorandum opinion and order dismissing all plaintiffs except Danks. The State cross-appealed from the April 29 order denying its motion for reconsideration and from that part of the April 29 findings, conclusions and order for judgment declaring the tax was illegally imposed.

II

[¶ 6] We must address the appealability of the district court’s orders. Although the State does not challenge the plaintiffs’ right to appeal, the plaintiffs argue this Court lacks jurisdiction over the State’s appeal.

[¶ 7] The right of appeal is governed solely by statute in this state, and without any statutory basis to hear an appeal, we must take notice of the lack of jurisdiction and dismiss the appeal. State v. Gohl, 477 N.W.2d 205, 207 (N.D.1991). In Dietz v. Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110, we said:

This Court must have jurisdiction before we can consider the merits of an appeal. Kostrzewski v. Frisinger, 2004 ND 108, ¶ 8, 680 N.W.2d 271. In Gast Constr. Co., Inc. v. Brighton P’ship, 422 N.W.2d 389, 390 (N.D.1988) (citations omitted), this Court set forth the two-part test for determining whether jurisdiction over an appeal exists:
First, the order appealed from must meet one of the statutory criteria of appealability set forth in NDCC § 28-27-02. If it does not, our inquiry need go no further and the appeal ■ must be dismissed. If it does, then Rule 54(b), NDRCivP, must be complied with. If it is not, we are without jurisdiction.

[¶ 8] Only judgments and decrees which constitute a final judgment of the rights of the parties to the action, and orders enumerated by statute are appeal-able. Lang v. Bank of Steele, 415 N.W.2d 787, 789 (N.D.1987). An order which “grants, refuses, modifies, or dissolves an injunction or refuses to modify or dissolve an injunction” is appealable under N.D.C.C. § 28-27-02(3). Under N.D.R.Civ.P. 54(b), a district court has authority to enter a final judgment adjudicating fewer than all of the claims or the rights and liabilities of fewer than all of the parties upon “express determination that there is no just reason for delay” and upon “express direction for the entry of judgment.” See Klagues v. Maintenance Eng’g, 2002 ND 59, ¶ 28, 643 N.W.2d 45. This Court has held that, if there are unadjudicated claims remaining in the district court, an order granting an injunction generally must be certified as final under N.D.R.Civ.P. 54(b) before an appeal may be taken. See, e.g., Rose Creek Dev. Corp. v. Plaza Dev. Group, Inc., 514 N.W.2d 368, 369-70 (N.D.1994). However, compliance with N.D.R.Civ.P. 54(b) is not necessary if the injunctive features of the appealed order “serve an active rather than incidental-purpose” and affect fundamental interests of the litigants. Fargo Women’s Health Org. v. Lambs of Christ, 488 N.W.2d 401, 406 (N.D.1992).

A

[¶ 9] In this case, the State appealed from that part of thé April 29 findings, conclusions and order for judgment declaring the motor vehicle fuels tax could not be imposed on the plaintiffs’ Indián reservations and from the April 29 order denying reconsideration of the prior January 12 memorandum opinion and order granting the permanent injunction. This Court has long held that an order for judgment, as distinguished from the judgment itself, is not an appealable order under N.D.C.C. § 28-27-02. See, e.g., Haugenoe v. Barnbrick, 2003 ND 92, ¶1 n. 1, 663 N.W.2d 175; Brown v. Will, 388 N.W.2d 869, 870 (N.D.1986); Kilzer v. Binstock, 339 N.W.2d 569, 571 (N.D.1983); Piccagli v. North Dakota State Health Dep’t, 319 N.W.2d 484, 486 (N.D.1982); Shrock v. Roy, 111 N.W.2d 703, 704 (N.D.1961); In re Eaton, 7 N.D. 269, 273, 74 N.W. 870, 871 (1898). An order for judgment is not appealable because it is not included in the appealable orders specified in N.D.C.C. § 28-27-02, Kilzer, 339 N.W.2d at 571, and merely serves as the authority for entry of an appealable judgment. In re Weber, 4 N.D. 119, 120, 59 N.W. 523 Syll. 3 (1894). Because an order for judgment requires the subsequent entry of judgment to give it effect, In Interest of R.A.S., 321 N.W.2d 468, 470 (N.D.1982), the district court may change the terms of the order for judgment before judgment is entered. Lee v. Gulf Oil Exploration and Prod. Co., 318 N.W.2d 766, 768 (N.D.1982). A final judgment or order is also necessary for appeal-ability in an injunction action. See Magrinat v. Trinity Hosp., 540 N.W.2d 625, 627 (N.D.1995); Selland v. Selland, 494 N.W.2d 367, 368 (N.D.1992); see also KFGO Radio, Inc. v. Rothe, 298 N.W.2d 505, 507 (N.D.1980) (involving appeal from judgment rather than order for judgment in injunction action); Minor v. Building and Constr. Trades Council, 75 N.W.2d 139, 142 (N.D.1956) (same). Although we treat an appeal from an order for judgment as an appeal from a subsequently entered judgment if one exists, Haugenoe, at ¶ 1 n. 1, no consistent judgment has been entered in this case. Therefore, we dismiss the State’s appeal from the April 29 findings, conclusions and order for judgment.

[¶ 10] The State also appealed from the district court’s April 29 order denying its motion for reconsideration of the court’s January 12 memorandum opinion and order granting the permanent injunction. An order denying a motion for reconsideration is appealable if it is “clearly intended to be final.” Austin v. Towne, 1997 ND 59, ¶ 7, 560 N.W.2d 895. Unlike the findings, conclusions and order for judgment, the order denying the motion for reconsideration does not call for preparation of a judgment and demonstrates it was intended to be the final order of the court on the reconsideration issues. However, there are unadjudicated claims remaining in the district court and the court did not certify this order as final under N.D.R.Civ.P. 54(b).

[¶ 11] We do not view the exception to the N.D.R.Civ.P. 54(b) certification requirement recognized in Fargo Women’s Health applicable under the circumstances, because an appeal from an order denying reconsideration of a previous order differs significantly from an appeal from the original order. An appeal from an order denying reconsideration does not present this Court with the merits of the original order requested to be reconsidered, but presents for review only whether the district court abused its discretion in deciding the movant either did or did not offer sufficient grounds to reconsider the previous decision. See Larson v. Larson, 2002 ND 196, ¶ 12, 653 N.W.2d 869. Here, the State argued in its motion for reconsideration that it was “denied the opportunity to file an Answer to the Original Complaint” and that it was “not given an opportunity to address the merits” of the case. The district court denied the motion, ruling there was “nothing that could be construed as a denial of an opportunity for the State to file an Answer” and “it cannot be said that [the State] did not have an opportunity to argue the ease on its merits.” The court’s order denying the motion for reconsideration is not an order which “grants, refuses, modifies, or dissolves an injunction or refuses to modify or dissolve an injunction” under N.D.C.C. § 28-27-02(3). Consequently, the order has no injunctive features which “serve an active rather than incidental purpose,” Fargo Women’s Health, 488 N.W.2d at 406, and N.D.R.Civ.P. 54(b) certification was required.

[¶ 12] Moreover, even assuming for purposes of argument that the district court had granted N.D.R.Civ.P. 54(b) certification of its order denying the motion for reconsideration, we conclude certification would have been improvidently granted. Certification under N.D.R.Civ.P. 54(b) is available only in the “ ‘infrequent harsh case’ ” warranting the extraordinary remedy of an otherwise interlocutory appeal. Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 15, 603 N.W.2d 66. For Rule 54(b) certification to be valid, the party seeking certification must demonstrate that without it prejudice or hardship will result, such that the case’s circumstances are “ ‘unusual and compelling’ ” or “ ‘out-of-the-ordinary.’ ” Id. Our decision on the merits of the order denying the motion for reconsideration would not moot the possibility of further proceedings in the district court followed by yet another appeal. See, e.g., In re Estate of Lutz, 1999 ND 121, ¶ 3, 595 N.W.2d 590. There are no unusual or compelling circumstances apparent-from the record for granting a Rule 54(b) certification of the order denying the motion for reconsideration.

[¶ 13] We conclude we have no jurisdiction to consider the State’s appeal, and we therefore dismiss the appeal.

B

[¶ 14] The plaintiffs appealed from the original January 12 memorandum opinion and order imposing the permanent injunction and dismissing all named plaintiffs except Danks, and from the April 29 order denying their motion for reconsideration. Although a timely motion for reconsideration is treated as a motion to alter or amend the judgment under N.D.R.Civ.P. 59 for purposes of tolling the time period for filing a notice of appeal, Continental Cas. Co. v. Kinsey, 499 N.W.2d 574, 582 (N.D.1993), we conclude we lack jurisdiction to consider the plaintiffs’ appeal from the January 12 memorandum opinion and order for several reasons.

[¶ 15] First, the January 12 memorandum opinion and order reveals that the district court did not intend this decision to be its final order. Plaintiffs’ counsel was “directed to prepare Findings of Fact, Conclusions of Law, Order for Judgment and Judgment consistent with this Memorandum Opinion and present same to the Court within thirty (30) days of the date of this Memorandum Opinion.” Although the April 29 findings of fact, conclusions of law and order for judgment were filed on May 7, no consistent judgment appears in the record. The plaintiffs have attempted to appeal from an interlocutory memorandum opinion and order. Memorandum opinions are not appealable. See Riemers v. Anderson, 2004 ND 109, ¶ 1 n. 1, 680 N.W.2d 280; Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 4 n. 2, 660 N.W.2d 558; Hallock v. Mickels, 1997 ND 156, ¶ 4 n. 1, 568 N.W.2d 277.

[¶ 16] Second, the district court dismissed all plaintiffs except Danks from the action, “without prejudice,” because Danks was the only plaintiff who had complied with N.D.C.C. § 32-12-03, and the dismissal of these plaintiffs is the only aspect of the order challenged on appeal. A dismissal without prejudice is ordinarily not final and appealable unless it has the practical effect of terminating the litigation in the plaintiffs chosen forum or the plaintiff will be barred by the statute of limitations from bringing another action. Beaudoin v. South Texas Blood & Tissue Ctr., 2004 ND 49, ¶ 7, 676 N.W.2d 103. This dismissal without prejudice would neither terminate the litigation in state court nor necessarily bar the action and claim for refunds under the statute of limitations.

[¶ 17] Finally, assuming for purposes of argument that the January 12 memorandum opinion and order was a final judgment, compliance with N.D.R.Civ.P. 54(b) would be required because unadjudi-cated claims for refunds and for class action certification remain pending in the district court. The dismissal, without prejudice, of all plaintiffs except Danks does not present the “. ‘infrequent harsh case’ ” warranting the extraordinary remedy of an otherwise interlocutory appeal. Dimond, 1999 ND 228, ¶ 15, 603 N.W.2d 66.

[¶ 18] The plaintiffs’ attempted appeal from the April 29 order denying the motions for reconsideration fails for the same reasons the State’s appeal from the April 29 order is defective. Assuming N.D.R.Civ.P. 54(b) certification had been granted, there are no unusual or compelling circumstances for authorizing an immediate appeal from an order denying reconsideration of a prior interlocutory order dismissing some of the plaintiffs from the action without prejudice.

[¶ 19] We conclude we have no jurisdiction over the plaintiffs’ appeal, and we therefore dismiss their appeal.

Ill

[¶ 20] This Court may examine a district court decision by invoking our supervisory authority. See Hilgers v. Hilgers, 2004 ND 95, ¶ 16, 679 N.W.2d 447. In Saefke v. Stenehjem, 2003 ND 202, ¶ 20, 673 N.W.2d 41 (quoting Olsen v. Koppy, 1999 ND 87, ¶17, 593 N.W.2d 762), we said:

Our power to issue supervisory writs is discretionary and cannot be invoked as a matter of right. [Mitchell v.] Sanborn, 536 N.W.2d [678,] 682-83 [(N.D.1995) ]; B.H. v. K.D., 506 N.W.2d 368, 372-73 (N.D.1993); City of Fargo v. Dawson, 466 N.W.2d 584, 585 (N.D.1991); Odden v. O’Keefe, 450 N.W.2d 707, 708 (N.D.1990). We exercise our supervisory jurisdiction over lower courts rarely to rectify errors or to prevent injustice where no adequate alternative remedies exist. Sanborn, 536 N.W.2d at 682-83; B.H., 506 N.W.2d at 372-73; Dawson, 466 N.W.2d at 585; Odden, 450 N.W.2d at 708. Our jurisdiction to issue supervisory writs is, in a sense, both appellate and original in character, because supervisory proceedings are independent in nature with process directed to a trial court, but our decision reviews the trial court’s judicial act. See [Thomas J.] Burke, [The Prerogative Jurisdiction of the Supreme Court,'] 32 N.D.L.Rev. [ ] 199-201 [ (1956) ] (comparing original supervisory jurisdiction and original jurisdiction to issue prerogative writ in publici juris cases).

[¶ 21] We decline to exercise our supervisory authority to consider the plaintiffs’ argument that the district court erred in dismissing, without prejudice, all of them from the action except Danks. Because the plaintiffs may either bring another action, or if not, appeal from a properly entered final judgment, adequate alternative remedies exist to resolve the disputed dismissals. See Roe v. Rothe-Seeger, 2000 ND 63, ¶ 5, 608 N.W.2d 289 (declining to exercise supervisory authority where any harm could be remedied in an appeal from an adverse judgment).

[¶ 22] We also decline to exercise our supervisory authority to consider the State’s argument that the district court erred in ruling the Hayden-Cartwright Act, 4 U.S.C. § 104, does not authorize imposition of the state motor vehicle fuels tax on Native Americans on their respective reservations. One of the factors we consider in deciding whether to exercise our discretion and grant a supervisory writ is whether the district court has committed an error. See, e.g., State v. Haskell, 2001 ND 14, ¶ 4, 621 N.W.2d 358; Dimond, 1999 ND 228, ¶ 19, 603 N.W.2d 66; Olsen, 1999 ND 87, ¶¶ 20-21, 593 N.W.2d 762. The State concedes that, but for the Hayden-Cartwright Act, it could not collect the motor vehicle fuels tax from enrolled members of the Indian reservations at issue. See Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 459, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995) (“If the legal incidence of an excise tax rests on a tribe or on tribal members for sales made inside Indian country, the tax cannot be enforced absent clear congressional authorization”). The district court’s ruling that the Hayden-Cartwright Act does not authorize imposition of the state motor vehicle fuels tax on Indian reservations is in accord with every federal and state court decision that has addressed the issue. See Marty Indian Sch. Bd., Inc. v. State of South Dakota, 824 F.2d 684, 688 (8th Cir.1987) (“we agree with the district court’s determination that section 104 does not support the imposition of the state’s motor fuel tax on the Marty Indian School”); Winnebago Tribe of Nebraska v. Kline, 297 F.Supp.2d 1291, 1304 (D.Kan.2004) (rejecting argument that Hayden-Cartwright Act “expressly cedes tax jurisdiction to the states on fuel delivered to Indian reservations”); Prairie Band Potawatomi Nation v. Richards, 241 F.Supp.2d 1295, 1304 (D.Kan.2003) (“the Hayden-Cartwright Act does not amount to congressional authorization for states to impose fuel tax on fuel delivered to Indian reservations”), rev’d on other grounds, 379 F.3d 979 (10th Cir.2004), ‘petition for cert. filed, 73 U.S.L.W. 3307 (U.S. Nov. 5, 2004); Coeur D’Alene Tribe v. Hammond, 224 F.Supp.2d 1264, 1268 (D.Idaho 2002) (the “Hayden-Cartwright Act is not specific enough to authorize a motor fuels tax on Indian gas stations located in Indian Country”), aff'd, 384 F.3d 674 (9th Cir.2004), petition for cert. filed, 73 U.S.L.W. 3298 (U.S. Nov. 5, 2004); Goodman Oil Co. v. Idaho State Tax Comm’n, 136 Idaho 53, 28 P.3d 996, 1002 (2001) (“It is not unmistakably clear that Congress intended to eliminate the exemption of the Tribes from the taxes the state attempts to impose”), cert. denied, 534 U.S. 1129, 122 S.Ct. 1068, 151 L.Ed.2d 971 (2002); Pourier v. South Dakota Dep’t of Revenue, 658 N.W.2d 395, 399, 404 (S.D.2003) (holding the “language of the statute does not make Congress’ intention to allow such taxation ‘unmistakably clear’ ” and that “a corporation owned by the tribe or an enrolled tribal member residing on the Indian reservation and doing business on the reservation for the benefit of reservation Indians is an enrolled member for the purpose of protecting tax immunity”), cert. denied, — U.S. -, 124 S.Ct. 2400, 158 L.Ed.2d 965 (2004). The risk that the district court committed error in its construction of the Hayden-Cartwright Act is negligible.

[¶ 23] The plaintiffs have conceded that the injunction prohibits collection of the motor vehicle fuels tax only from enrolled Native Americans on their own respective Indian reservations. Although the feasibility of enforcing the injunction prohibiting collection of the motor vehicle fuels tax from Native Americans on their own reservations is questionable, the plaintiffs have indicated they would be satisfied if a refund procedure similar to the procedure provided in N.D.C.C. ch. 57-43.1 were made available to them. We urge the Legislature to address this problem.

[¶24] We decline to exercise our supervisory jurisdiction in this case.

IV

[¶ 25] The appeals are dismissed.

[¶ 26] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2005 ND 42
    STATE of North Dakota, Plaintiff and Appellee v. Terry RAMSEY, Defendant and Appellant.
    No. 20040035.
    Supreme Court of North Dakota.
    Feb. 22, 2005.

      Jonathan R. Byers, Assistant Attorney General, Office of Attorney General, Bismarck, N.D. for plaintiff and appellee.
    TaLisa Nemec (argued), law graduate, and Kenneth B. Bulie, Grand Forks, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Terry Ramsey appeals a criminal judgment and commitment entered upon a jury verdict finding him guilty of Gross Sexual Imposition, a class A felony, for engaging in sexual contact with a female under the age of 15 years. We affirm.

I

[¶ 2] Terry Ramsey (“Ramsey”) and his brother Neil Ramsey (“Neil”) were separated in childhood from their half-sister. The brothers were reunited with their sister and her two daughters in the late 1990’s and began to spend time together as a family. In mid-June of 2001, one of the daughters, (“Jane,” a pseudonym), then age 10, and her sister spent a week with Ramsey and his brother at the Ramsey family farm in North Dakota. On June 16, the girls returned to their home in Wyoming for a few weeks before joining Ramsey and his family at their home in Florida on July 4, 2001.

[¶ 3] While in Florida, Ramsey’s wife, Valerie Ramsey (“Valerie”), discovered Ramsey in a locked bathroom with Jane. Ramsey was touching Jane’s vaginal area while applying a yeast infection medication that she frequently applied to herself without assistance. Valerie confronted Ramsey, and after a brief argument, Ramsey left the family home. The next day, Jane told Valerie that Ramsey had touched her breasts and vagina on more than one occasion during the week she spent in North Dakota. Jane said that Ramsey explained the touching by claiming he thought Jane was his wife and that he told her if she told anyone she would not be allowed to travel to Florida.

[¶ 4] Valerie then notified Jane’s mother, who asked that Valerie report the situation to the local police. Both the North Dakota and Florida incidents were reported to local authorities in Florida, including a deputy sheriff and a sex crimes investigator. After being advised to do so by officials in Florida, Jane’s mother reported the situation to the appropriate authorities in North Dakota. A warrant was issued in North Dakota, and Ramsey was arrested.

[¶ 5] Ramsey signed a written plea agreement causing the cancellation of his initial trial scheduled for March 2003. At the July 14, 2003, sentencing hearing, however, Ramsey refused to plead guilty and the trial was rescheduled for December 2003. Ramsey was tried by a jury in December 2003. In addition to Jane’s own testimony, the trial court allowed Jane’s mother, Jane’s aunt, a Florida deputy sheriff, and a Florida sex crimes investigator to testify as to what Jane had told them about Ramsey’s actions. The jury returned a guilty verdict.

II

[¶ 6] On appeal, Ramsey challenges his conviction, arguing the trial court committed reversible error in its pretrial evidentiary motions and violated his Sixth Amendment right to confront his accuser. Ramsey argues the trial court decision to allow Jane’s hearsay statements was in error because the court did not set forth explicit findings regarding the circumstances, time, content, and place as required by N.D.R.Ev. 803(24) and applicable case law. Ramsey contends that allowing the hearsay testimony affected his procedural rights to a fair trial because the words of the victim were “bolstered” by presenting them through her mother, her aunt, and subsequent interviewers of the child. Ramsey further argues that the trial court’s admittance of evidence regarding his contact with the victim in Florida is reversible error because the prejudicial effect of his subsequent actions far outweighed the probative value.

[¶ 7] Ramsey also argues that by not allowing evidence of a prior rape committed by her step-brother, the trial court denied him an opportunity to confront Jane. Ramsey contends that the previous sexual abuse suffered by Jane produced feelings of shame and guilt on her part, consequently causing her to “instigate and fabricate” the allegations against him in order to rid herself of the blame for the chaos in the family caused by this situation. Without the opportunity to present this evidence, Ramsey asserts his ability to fully confront his accuser was hindered.

Ill

[¶ 8] Ramsey argues the trial court committed reversible error in two of its pretrial evidentiary rulings, thereby admitting testimony affecting his substantial rights under N.D.R.Crim.P. 52(b). We review a trial court’s evidentiary ruling under an abuse of discretion standard. A trial court abuses its discretion in eviden-tiary rulings when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law. State v. Messner, 1998 ND 151, ¶ 13, 583 N.W.2d 109 (citing State v. Christensen, 1997 ND 57, ¶ 5, 561 N.W.2d 631). An error affecting a defendant’s substantial rights is reversible error. In the Interest of F.H., 283 N.W.2d 202, 206 (N.D.1979).

A

[¶ 9] The first error, according to Ramsey, occurred when the trial court admitted Jane’s out-of-court statements through the testimony of her mother, her aunt, a Florida deputy sheriff, and a Florida sex offender/child abuse investigator under N.D.R.Ev. 803(24). Ramsey contends the purpose of Rule 803(24) is to assist the prosecution when an available witness is unable to testify to the details of abuse during trial. State v. Hirschkorn, 2002 ND 36, ¶ 11, 640 N.W.2d 439.

[¶ 10] Rule 803(24), N.D.R.Ev., provides:

An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:
(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and
(b) The child either:
(i) Testifies at the proceedings; or
(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

N.D.R.Ev. 803(24).

[¶ 11] Ramsey argues that because the trial court failed, under N.D.R.Ev. 803(24), to set forth explicit findings regarding the time, content, and circumstances of the hearsay statements that provided sufficient guarantees of its trustworthiness, the testimony was inadmissible hearsay and allowing the jury to hear it was an abuse of discretion affecting his substantial rights. Hirschkorn, 2002 ND 36, ¶ 13, 640 N.W.2d 439. Ramsey contends that the trial court was aware Jane had restated her allegations consistently during previous interrogations and interviews, and thus, the use of the Rule 803(24) hearsay exception in this case is inconsistent with the original purpose of the rule. Consequently, according to Ramsey, allowing this testimony only serves to bolster Jane’s testimony rather than supplement it.

[¶ 12] Ramsey, however, never renewed his hearsay objections to this testimony during trial except for the testimony of Valerie Ramsey. We have held that even if a defendant objects at the pretrial hearing on a N.D.R.Ev. 803(24) motion, failure to object at trial to the testimony of a child victim’s out-of-court statement regarding sexual abuse limits our inquiry to determining whether its admission into evidence constitutes obvious error affecting substantial rights under N.D.R.Crim.P. 52(b). Hirschkorn, 2002 ND 36, ¶ 6, 640 N.W.2d 439 (citing State v. Wiest, 2001 ND 150, ¶ 6, 632 N.W.2d 812). In order to establish obvious error, the defendant must show “(1) error, (2) that is plain, and (3) that affects substantial rights.” Hirschkorn, at ¶ 6. “An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.” Id. “This Court will not set aside a correct result merely because the district court assigned an incorrect reason, if the result is the same under the correct law and reasoning.” Cannaday v. Cannaday, 2003 ND 58, ¶ 8, 659 N.W.2d 363.

[¶ 13] We conclude that while the testimony of Jane’s mother, her aunt, the Florida deputy sheriff, and the Florida sex offender/child abuse investigator was admitted by the trial court under N.D.R.Ev. 803(24), the Florida contact would have been admissible under N.D.R.Ev. 801(d)(l)(ii). Rule 801(d)(l)(ii), N.D.R.Ev., in pertinent part, states:

A statement is not hearsay if:

(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is....
(ii) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....

N.D.R.Ev. 801(d)(1)(h).

• [¶ 14] In his pretrial motion in opposition to admitting this testimony, Ramsey argued that N.D.R.Ev. 801(d)(1)(h) was not applicable because it could only be used when the testimony was “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive” and because he had presented “absolutely” no evidence of such a charge.

[¶ 15] It is true that at the pretrial motion hearing Ramsey had not yet raised the argument or implied that Jane’s statements to her mother, her aunt, the Florida deputy sheriff, and the Florida sex offender/child abuse investigator were fabrications. Beginning with his opening statement and throughout the trial, however, Ramsey argued, both directly and impliedly, that Jane’s version of events was a fabrication resulting from improper influence and motive. Therefore, once Ramsey argued that improper influence and motive caused Jane to fabricate her allegations, Rule 801(d)(l)(ii) became applicable.

[¶ 16] We conclude the statements Jane made to her aunt, her mother, a Florida deputy sheriff, and a Florida sex offender/child abuse investigator aré not hearsay and were properly allowed as substantive evidence under N.D.R.Ev. 801(d)(l)(ii).

B

[¶ 17] The second error, according to Ramsey, occurred when the trial court admitted testimony regarding the Florida contact for the purposes of showing his conformity with a certain type of behavior. Ramsey argues evidence of his contact with Jane in Florida in July 2001 constituted a wholly separate and independent act from the contact that occurred in North Dakota in June 2001. Ramsey argues this evidence was used to show conformity with a certain type of behavior and, as such, was unfairly prejudicial to him and should have been inadmissible under N.D.R.Ev. 404(b) and N.D.R.Ev. 403.

[¶ 18] The trial court, in its pretrial evidentiary order, found the alleged Florida contact to be evidence of activity in furtherance of the same criminal activity, noting that both occurrences happened within a three-week span and that Jane was under Ramsey’s care on both occasions. Accordingly, the trial court concluded the Florida contact was outside the purview of Rule 404(b) and, therefore, admissible. See State v. Christensen, 1997 ND 57, ¶ 8, 561 N.W.2d 631. The trial court relied on Christensen. Id. However, in Christensen, the State introduced evidence of other acts to show the “grooming” that Christensen undertook with the victim to further his criminal activity. Those acts were all non-criminal and occurred prior to the criminal act. In this case, the acts that occurred later in Florida could not have been “grooming” or preparation for the prior criminal acts in North Dakota. We conclude the contact between Ramsey and Jane that occurred in North Dakota in June 2001 and the similar contact that occurred in July 2001 at the Ramsey home in Florida are two wholly separate and independent acts.

[¶ 19] Admitting the conduct in Florida to show a propensity to commit such acts would constitute error. In State v. Osier, 1997 ND 170, 569 N.W.2d 441, our Court concluded it was reversible error to admit eight-year-old other-act evidence from Osier’s niece. In Osier, the defendant was charged with molesting his daughter. The trial court admitted testimony from Osier’s niece that he had molested her eight years prior. Our Court held it was reversible error and remanded for a new trial, noting “[t]hat use of the niece’s testimony is nothing more than propensity evidence to show Osier had a criminal sexual character and ... he acted in conformity therewith.” Id. at ¶ 5. Our Court warned of the dangers inherent in allowing evidence of other acts to show propensity and of tempting a jury to convict a defendant for actions other than the charged misconduct. Id. at ¶ 6.

[¶ 20] However, unlike Osier, the separate and independent act in the instant case is admissible under an exception to N.D.R.Ev. 404(b). Rule 404(b), N.D.R.Ev., provides, in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ...

N.D.R.Ev. Rule 404(b).

[¶ 21] It should be noted that in our previous opinions considering the admissibility of “other crimes, wrongs, or acts” under N.D.R.Ev. 404(b) the conduct involved “prior-acts,” i.e., acts occurring before the charged crime. We, however, do not read Rule 404(b) to include only “prior-racts.” Subsequent acts by the defendant should be considered under- the same analysis. See United States v. Pollard, 509 F.2d 601 (5th Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681 (1975). “The longstanding common law rule on prior-act evidence is that it is inadmissible when it is evidence of ‘a wholly separate and independent crime’ and is used to show a propensity to commit such acts.” Christensen, 1997 ND 57, ¶ 8, 561 N.W.2d 631 (citation omitted). “Thus, Rule 404(b) only excludes evidence of other acts and crimes committed by the defendant when they are independent of the charged crime, and do not fit into the rule’s exceptions.” Id.

[¶22] The trial court did conduct an alternative analysis under Rule 404(b), finding evidence of the Florida contact admissible under a Rule 404(b) exception:

[I]f the Court were to consider the conduct in Florida to constitute wholly separate and independent acts from the North Dakota charged -crime, the evidence would still be admissible applying the three-step analysis, which the North Dakota Supreme Court has indicated the Court should do, the Court would find that the Florida incident may be admissible for purposes of proving motive, opportunity, intent, knowledge or absence of mistake or accident. Based upon the State’s offer of proof, the Court is presuming that the acts in Florida would be shown to be substantially reliable if Jane Doe and Valerie Ramsey both testify and would be even more corroborated if the investigators from Florida were to testify to show the context in which the information became known to authorities.- Also, since this is a criminal case, prior to allowing the Florida incident to be allowed into court, under Rule 404(b), there must be proof the crime charged in North Dakota has been shown which would establish the defendant’s guilt independently of the Florida evidence. Again, based upon the State’s offer of proof, the Court presumes that Jane Doe would testify as to her being in North Dakota in June with her uncle, the defendant, and the underlying circumstances of what constitutes the North Dakota charge.

[¶ 23] A proper determination of whether to admit evidence under one of the Rule 404(b) exceptions should include the following three-step analysis:

1) the purpose for which evidence is introduced,
2) the evidence of the prior act or acts must be substantially reliable or “clear and convincing,” and,
3) in criminal cases, there must be proof of the crime charged which permits the trier of fact to establish the defendant’s guilt or innocence independently on the evidence presented) without consideration of the evidence of the prior acts.

Christensen, 1997 ND 57, ¶ 7, 561 N.W.2d 631; see also State v. Micko, 393 N.W.2d 741, 744 (N.D.1986).

[¶ 24] The trial court applied the Rule 404(b) exception analysis correctly. Evidence of the Florida incident is admissible under the “plan” or “absence of mistake or accident” exceptions of Rule 404(b). This is supported first by the nature of Ramsey’s custodial relationship over Jane in the summer of 2001 and Jane’s testimony that after the inappropriate touching he explained his actions by claiming to have confused Jane with his wife. Second, the evidence of the contact between Ramsey and Jane in Florida was found by the trial court to be substantially reliable because Jane and Valerie both provided witness testimony, and they were further corroborated by the testimony of the Florida law enforcement officials illustrating the context in which the contact became known to authorities. Furthermore, the record indicates that Ramsey has never denied that the Florida contact occurred, he has only denied that his actions were inappropriate. Finally, Jane testified as to the time, place, and specific circumstances of the contact in North Dakota, permitting a trier of fact to establish Ramsey’s guilt or innocence independent of whether evidence of the Florida contact is considered.

[¶ 25] However, this does not complete the trial court’s evidentiary analysis. The trial court must also determine whether the evidence is admissible under N.D.R.Ev. 403. See Christensen, 1997 ND 57, ¶ 7, 561 N.W.2d 631. Rule 403, N.D.R.Ev., states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

N.D.R.Ev. 403.

[¶ 26] “The rule does not authorize automatic admission merely because the proponent advances a proper purpose for the evidence; instead, the relevance and probative value of the evidence must be demonstrated.” Osier, 1997 ND 170, ¶ 4, 569 N.W.2d 441 (quoting Dahlen v. Landis, 314 N.W.2d 63, 70 (N.D.1981). In the instant case, the trial court did conduct a Rule 403 balancing test to weigh the probative value of the evidence against the possible prejudicial effect to Ramsey’s position. The trial court’s Rule 403 analysis is as follows:

Having reviewed the statements and information presented regarding the Florida incident, the Court can understand why the defendant feels such evidence would be prejudicial to his position if the jury believed that evidence. However, the Florida incident having occurred very recently after the North Dakota incident and at a time when the minor, Jane Doe, was still with the defendant on an extended trip which had started in North Dakota and ended up in Florida at the defendant’s home, it appears the probative value would outweigh any possible prejudicial effect to the defendant.

[¶ 27] A trial court should exercise its power to exclude evidence under Rule 403 sparingly, recognizing that “any prejudice due to the probative force of evidence is not unfair prejudice.” State v. Klein, 1999 ND 76, ¶ 5, 593 N.W.2d 325 (citation omitted). “In determining whether to exclude evidence under Rule 403, courts should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.” State v. Randall, 2002 ND 16, ¶ 15, 639 N.W.2d 439. Rule 403 applies to unfairly prejudicial evidence, not simply evidence that is prejudicial. State v. Zimmerman, 524 N.W.2d 111, 116 (N.D.1994). “Indeed, no verdict could be obtained without prejudicial evidence.” Id. (citing United States v. Noland, 960 F.2d 1384, 1387 (8th Cir. 1992)).

[¶ 28] Evidence of the contact between Ramsey and Jane occurring in Florida in July 2001 is especially probative because Ramsey’s defense at trial was one of fabrication by Jane. The North Dakota contact was revealed as a result of what happened in Florida, and the subsequent reports to Jane’s mother and law enforcement in Florida resulted in Jane’s statements to Florida officials. Under these circumstances, the probative value of the evidence exceeds any unfair prejudice that might arise out of admission of the evidence, and we agree with the trial court’s conclusion that this evidence is admissible under N.D.R.Ev. 403. We, therefore, conclude that the trial court’s N.D.R.Ev. 404(b) and 403 analysis was correct and its decision to admit evidence of the Florida contact was not an obvious error.

IV

[¶ 29] We have previously held that any doubts about admissibility of evidence under Rule 403, such as doubts about “the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge.” Zimmerman, 524 N.W.2d at 115 (citing 1 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence, ¶403[01], at 403-11, 403-12 (1994)).

[¶ 30] In the case at bar, the trial court cautioned the jurors as to the limited purposes for which evidence of the Florida contact was admissible. The jury instruction read as follows:

Related Acts or Offenses
For the purpose of showing motive, opportunity, intent, knowledge, and absence of mistake or accident, and the context in which the allegations became known to the authorities with respect to the offence charged, the Court received evidence of acts or offenses committed by the defendant in the state of Florida. Before considering evidence of the acts that occurred in Florida for these purposes, you must first find beyond a reasonable doubt that the defendant committed the acts in North Dakota constituting the offense charged.
The acts that occurred in Florida are not evidence by which you may convict the defendant of a crime in North Dakota.

[¶ 31] In addition to not denying the Florida contact occurred, Ramsey did not object to the cautionary instruction given to the jury. A jury is presumed to follow instructions given by the trial court. State v. Thill, 2005 ND 13, ¶ 12, 691 N.W.2d 230. Therefore, under the specific circumstances of this case, the jury instruction would have cured any improper prejudice.

V

[¶ 32] Ramsey argues that the trial court’s decision not to admit evidence of Jane’s prior sexual abuse violated his Sixth Amendment right to confront witnesses against him. Therefore, because his constitutional rights are affected, the evidence should be admitted under N.D.R.Ev. 412(b)(3). Ramsey contends that he must be allowed to confront Jane in order to show she had a motive for fabricating the allegations; the motive being her shame and guilt when faced with Ramsey’s wife’s accusatory response and her desire to preserve her person and to defend herself against an angry stranger.

[¶ 33] Ramsey’s current argument to get this evidence admitted differs from the argument he presented below. At the trial court, Ramsey argued he must be allowed to cross-examine Jane about any prior sexual experiences to show that such experiences might be an alternative source for such knowledge by a person of her age. Notably, Ramsey did not renew his motion at trial or make an offer of proof after his initial motion.

[¶ 34] Our Court will not hear issues raised for the first time on appeal. Chapman v. Chapman, 2004 ND 22, ¶ 7, 673 N.W.2d 920. “The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories.” Gonzalez v. Tounjian, 2003 ND 121, ¶ 31, 665 N.W.2d 705.

[¶ 35] We affirm the criminal judgment and commitment.

[¶ 36] GERALD W. VANDE WALLE, C.J., BENNY A. GRAFF, S.J., WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.

[¶ 37] The Honorable BENNY A. GRAFF, S.J., sitting in place of KAPSNER, J., disqualified.


author: KONENKAMP, Justice.

text:
    2004 SD 138
    Steven HOBART, Petitioner and Appellee, v. George FEREBEE, Respondent and Appellant.
    No. 23075.
    Supreme Court of South Dakota.
    Argued on Nov. 17, 2004.
    Decided Dec. 29, 2004.

      Linda Lea M. Viken, Lisa L. Kiser, Rapid City, South Dakota, Attorneys for petitioner and appellee.
    Dedrich R. Koch of Winter and Koch, Rapid City, South Dakota, Attorneys for respondent and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, we review a protection order that prohibited defendant from harassing plaintiff, but also forbade defendant from filing any complaint against plaintiff with local, state, and federal government agencies, without first paying a fee to and obtaining permission from the circuit court. This order was entered after defendant made numerous complaints, many of them • frivolous, against plaintiff to government authorities. Because the protection order unconstitutionally constrains defendant’s right of free speech, we vacate that part of the order prohibiting defendant from petitioning government agencies.

I.

[¶ 2.] Steve Hobart and George Fere-bee have been neighbors in rural Pennington County for almost two decades. For much of that time, their relationship was acrimonious. In 1999, the tension between these two ranchers worsened. A string of complaints ensued. Hobart alleged that Ferebee assaulted his son and had made earlier death threats against his family. Ferebee reported to the sheriffs office that Hobart’s son tried to hit him with an automobile. These complaints culminated in the two men obtaining court orders restraining each from harassing or stalking the other. By mutual agreement, the restraining orders were later extended.

[¶ 3.] Before the termination of his restraining order in December 2002, Hobart requested from the United States Forest Service (USFS) information regarding any inquiries by third parties about him, his property, or his business interests. The data he received revealed that beginning in January 2001, Ferebee had been contacting the USFS about activity on Hobart’s property and USFS property on which Hobart maintained grazing permits. Fer-ebee’s complaints ranged from cows on roads to early entry of livestock onto federal grazing lands. Many of the complaints concerned cattle grazing in inappropriate areas at inappropriate times. In most instances, Hobart either had taken care of the problem or was in the process of rectifying the problem when Ferebee lodged his complaint. Ferebee also complained about livestock damage to a local stream. "In addition, Hobart discovered that Ferebee had made several information requests through the Freedom of Information Act concerning. Hobart or his property. As. a result of the numerous and frequent complaints generated by Fer-ebee, the USFS notified Ferebee that any further complaints should be in writing and directed to certain personnel.

[¶ 4.] During this time, Ferebee also complained to the South Dakota Department of Game Fish and Parks (GF & P) about a snowmobile trail that crossed through Hobart’s land. Because of Fere-bee’s perception that the GF & P was doing little to address his concerns, he contacted Senator Tom Daschle’s office for assistance. Ferebee’s complaint was that an environmental impact study had not been completed before the GF & P ap: proved the trail. Because of Ferebee’s complaints, at least a portion of the. trail was abandoned.

[¶ 5.] In addition to the other complaints, Ferebee brought his disputes with Hobart to the Pennington County Plam ning and Zoning Board. He inquired of the Board about a dam being constructed on Hobart’s property and various zoning issues. The dam apparently was oh a dry creek that when flowing also crossed Fere-bee’s property. The zoning complaints generally concerned structures that did not adhere to setback requirements. While the dam was confirmed to be for agricultural purposes and therefore exempt from permitting requirements, at least one of Ferebee’s complaints regarding a zoning violation resulted in the Board concluding that a structure was not in compliance.

[¶ 6.] Ferebee also reported to authorities that one of his bulls had been stolen. In fact, the bull had wandered onto Hobart’s land. Hobart put the bull in his trailer and moved it back to Ferebee’s property. Ferebee reported Hobart to the South Dakota Brand Board in an attempt to get him arrested for hauling the bull without a permit under SDCL 40-21-3.1. That statute provides that “[n]o person may transport cattle ... on any public highway in this state or over any land of which he is not the owner or tenant, without the written permission of the owner of the cattlef.]” The Brand Board declined to pursue criminal prosecution.

[¶ 7.] Most of Ferebee’s complaints were transparent attempts to make life as difficult as possible for Hobart. On July 8, 2003, Hobart moved to continue his previous protection order or for a new order against Ferebee. Hobart did not allege that Ferebee had continued to threaten him or his family, but he asserted that Ferebee’s harassment had taken a new form: harassment through third parties. Ferebee’s incessant complaints had required Hobart “to answer to various local, state, and federal agencies, departments, and boards for unsubstantiated com-plaintsf.]” Hobart wanted it stopped. A hearing was held on August 4, 2003, and the circuit court ruled from the bench. Thereafter, the court, on October 16, 2003, entered its findings of fact and conclusions of law and an order for protection.

[¶ 8.] The judge’s order restrained Ferebee from making any “credible threat to [Hobart] with the intent to place [him] in reasonable fear of death or great bodily injury....” Ferebee was ordered to “have no contact with [Hobart] or his family at any place and ... not verbally contact [Hobart], including phone contact and ... not verbally abuse or threaten [Hobart.]” The order prohibited Ferebee “from coming within 500 feet of [Hobart] personally and of [Hobart’s] property, except for that portion of property where the parties share a common border[.]” With respect to Ferebee’s complaints to government agencies, the order provided that “should [Ferebee] wish to file a complaint regarding [Hobart] to a county, federal, or state agency ... he shall submit his complaint in writing, in affidavit form to the Court ... with a $25 fee for each complaint contained in the affidavit.” The order was to last for three years.

[¶ 9.] In his appeal, Ferebee raises the following issues: (1) “It was an abuse of discretion for the trial court to find that Hobart met his burden pursuant to SDCL 22-19A and to deny Ferebee’s motion for directed verdict.” (2) “Ferebee’s complaints to authorities were constitutionally protected activities.” (3) “Whether the trial court committed error when it admitted and otherwise considered hearsay evidence.” (4) “It was error for the trial court to adopt a finding that appellant had made threats which placed appellee in reasonable fear of death or great bodily injury.” (5) “It was an abuse of discretion for the trial court to deny Ferebee’s proposed findings of fact and conclusions of law.” We address Issues 2 and 4.

II.

[¶ 10.] Like other injunctions, we review protection and restraining orders for abuse of discretion. Shore v. Cruz, 2003 SD 81, ¶ 8, 667 N.W.2d 312, 314. Issues of statutory construction are examined de novo. State v. Krahwinkel, 2002 SD 160, ¶ 13, 656 N.W.2d 451, 458 (citing State v. Barton, 2001 SD 52, ¶ 8, 625 N.W.2d 275, 278). In reviewing questions of statutory construction, we strive “to ascertain the intent of the law.” Id. A statute’s plain language normally expresses its intent. Id. (citing Faircloth v. Rav en Indus., Inc., 2000 SD 158, ¶ 6, 620 N.W.2d 198, 201). When an asserted error implicates an intrusion of a constitutional right, our review is de novo. Id. (citing State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43).

[¶ 11.] The order issued by the trial court is based on South Dakota’s stalking statutes, found in SDCL chapter 22-19A. SDCL 22-19A-1 provides:

Any person:
(1) Who willfully, maliciously, and repeatedly follows or harasses another person;
(2) Who makes a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or
(3) Who willfully, maliciously, and repeatedly harasses another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written eommunication[,] is guilty of the crime of stalking. Stalking is a Class 1 misdemeanor.

If, however, a person “violates § 22-19A-1 when there is a temporary restraining order, or an injunction, or a protection order, in effect prohibiting the behavior described in § 22-19A-1 against the same party, that person is guilty of a Class 6 felony.” SDCL 22-19A-2.

[¶ 12.] The term “harasses” is defined in SDCL 22-19A-4 as “a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.” In turn, the phrase “course of conduct” is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of course of conduct.” SDCL 22-19A-5.

[¶ 13.] Ferebee challenges the constitutional validity of the circuit court’s order, but not the "Statutes upon which the order was based. The order forbids Ferebee from directly filing “a complaint regarding [Hobart] to a county, federal, or state agency, specifically to include any of the following agencies: Pennington County Sheriff, Pennington County Planning and Zoning Department, Pennington County Commission, South Dakota Brand Board, South Dakota Department of Environment and Natural Resources, South Dakota Game Fish and Parks Department, or the United States Forest Service, Department of Agriculture” unless Ferebee “submit[s] his complaint in writing, in affidavit form to the court ,.. with a $25 fee for each complaint contained in the affidavit.” The order neither applies to “public hearings or responses requested of [Ferebee] by government agencies” nor forbids Ferebee from contacting any of South Dakota’s congressional delegates.

[¶ 14.] The First Amendment forbids advance restraints on speech. Thus, there is a strong presumption against the constitutional validity of any such prior restraint. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 733, 51 S.Ct. 625, 637, 75 L.Ed. 1357 (1931). In Near, the United States Supreme Court declared that prior restraints are permissible only in exceptional cases, such as war, obscenity, and “incitements to acts of violence and the overthrow by force of orderly government.” Id. at 716, 51 S.Ct. at 631. The term “prior restraint” is used “ ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur. Temporary restraining orders and permanent injunctions— i.e., court orders .that actually forbid speech activities — are classic examples of prior restraints.’ ” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 2771, 125 L.Ed.2d 441 (1993) (internal citations omitted). An advance restraint on speech is the most intolerable infringement of First Amendment rights. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976). “If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” Id. (citations omitted).

[¶ 15.] When a temporary restraining order or injunction constitutes a prior restraint of speech, it carries a “heavy presumption” of unconstitutionality. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). To overcome this presumption, an injunction must not burden more speech than required to accommodate a significant government interest. State v. Hauge, 1996 SD 48, ¶ 7, 547 N.W.2d 173, 176 (citing Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 765, 114 S.Ct. 2516, 2525, 129 L.Ed.2d 593 (1994)). See also In re Marriage of Suggs, 152 Wash.2d 74, 93 P.3d 161, 165 (2004). Such an injunction must be framed in terms no broader than necessary to accomplish its specific, constitutionally permissible objective. Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 353, 21 L.Ed.2d 325 (1968).

[¶ 16.] Undoubtedly, this order is a prior restraint on speech. Before filing any complaint, legitimate or illegitimate, Ferebee must submit it in affidavit form to the court along with a $25 fee. Only if the circuit court rules the complaint meritorious will it then refund the money and allow Ferebee to file it with the appropriate agency. If the court finds that the complaint is without merit, Fere-bee cannot file it, and he forfeits his $25. This abridges Ferebee’s fundamental right to petition the government. “The right to petition the government for a redress of grievances is ... constitutionally protected activity, and one of the most precious liberties ‘safeguarded by the Bill of Rights.’ ” Curry v. State, 811 So.2d 736, 742 (Fla.Dist.Ct.App.2002) (quoting United Mine Workers of Am., Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967)). Included in that right is the entitlement to petition administrative agencies and law enforcement officials. See id. at 743 (citations omitted).

[¶ 17.] The right to petition the government does not hinge on an individual’s motivation because, as stated by the Supreme Court, “[i]t is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors.” Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139, 81 S.Ct. 523, 531, 5 L.Ed.2d 464 (1961). Even biased and improperly motivated speech is protected by the First Amendment. State v. Springer-Ertl, 2000 SD 56, ¶ 12, 610 N.W.2d 768, 772 (citations omitted).

[¶ 18.] Having concluded that the trial court’s order is a prior restraint on Ferebee’s First Amendment rights, we must next decide whether the order exceeds permissible bounds by burdening more speech than necessary to accomplish its specific and constitutionally permissible objective. In State v. Asmussen, 2003 SD 102, ¶ 8, 668 N.W.2d 725, 730, we discussed the legitimate purpose of our stalking statutes. We stated, “stalking is a serious concern of society. The [L]egislature, therefore, has a legitimate interest in protecting those who are harassed and placed in serious fear for their safety.” Id. ¶ 9. There, based on a “plainly legitimate application” of the statutes, we concluded that there was no threat to protected speech in a “real” or “substantial” sense. Id. However, we cannot say that the protection order here falls in the same category.

[¶ 19.] Our view on this issue is supported by the plain language of our laws. SDCL 22-19A-5 specifically exempts from the coverage afforded by the chapter activity protected by the First Amendment: While it is difficult to list all the types of speech protected by the Constitution, this Court and others have often noted categories of speech deemed unprotected. See In re S.J.N.-K, 2002 SD 70, ¶ 11, 647 N.W.2d 707, 711 (listing lewd, obscene, profane, libelous, and inciting words as classic examples of unprotected speech). Ferebee’s complaints to various agencies do not approach any of these categories.

[¶ 20.] Reporting potential violations of laws to an appropriate agency is ordinarily protected speech. True, those investigating Ferebee’s multitudinous complaints did not find many of his inquiries and accusations to be credible. However, we do not believe that a complaint’s legitimacy turns on whether it is eventually sustained. A majority of the complaints were taken seriously. In oral argument, Fere-bee’s attorney insisted that none of his client’s complaints were frivolous. In one sense, perhaps he was right. A hairline crack in a neighbor’s driveway may be a violation of some minor ordinance, but reporting it to authorities repeatedly might be more about harming the driveway owner than a public-spirited interest in maintaining adherence to the law. Just so with Ferebee’s complaints-most had a micron' of legitimacy. They were not frivolous in the sense that they had no merit, but, as the circuit court found, they were intended to harass and annoy, and in that sense they were frivolous, as well as malicious. Nonetheless, judicial censorship of these complaints goes well beyond what is necessary to accomplish a specific, constitutionally permissible objective. Even valid prior restraints may not employ “means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).

[¶ 21.] Here, the circuit court ordered an absolute prohibition of Ferebee’s right to lodge complaints against Hobart with various government entities. “[A]bsolute prohibition[s] on a particular type of ex^ pression will be upheld only if narrowly drawn to accomplish a compelling governmental interest.” United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983) (citations omitted). With this speech-restraining injunction prohibiting complaints to agencies whose function it is to deal with citizen complaints, we can see no compelling government interest in upholding it. Certainly, the order was not narrowly drawn when it failed to distinguish between complaints neither unlawful nor unfounded. See United States v. Kaun, 827 F.2d 1144, 1150 (7thCir.1987) (upholding injunction prohibiting speech promoting fraudulent tax avoidance scheme).

[¶ 22.] Hobart insists that the trial court’s order seeks only to prohibit “any further harassment of Hobart by use of third party agencies ..., which were not legitimate complaints!.]” This argument misses the point. Our concern is not with the intent of the order but with its effect. We focus not on what the order constitutionally prevents, but on what it unconstitutionally constrains. The order plainly freezes Ferebee’s legitimate rights. Some of Ferebee’s complaints, though ill motivated, were treated as legitimate by the agencies he contacted. And for those that were frivolous, the government agencies themselves were suitably equipped to deal with them. Under the judge’s order here, no complaint, no matter how well justified, no matter how urgent, could be lodged without prior court approval and payment of a fee. “The essence of prior restraint is that it places specific communications under the personal censorship of the judge.” Bernard v. Gulf Oil Co., 619 F.2d 459, 468 (5thCir.1980), aff'd, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).

[¶ 23.] Hobart’s argument that the order leaves Ferebee with alternative means to address his grievances is unpersuasive. Ferebee may not initiate contact with government agencies, boards, and commissions. He must wait until the board or commission convenes or until he is specifically contacted before he may bring a complaint. Even where Ferebee is permitted to attend those meetings and voice his opinion, it is questionable whether the order permits him to bring up issues that were not independently brought forth by the board or commission. Ferebee’s unlimited access to South Dakota’s congressional delegation does not sufficiently leave open a path for his right to express grievances. Often citizens who contact their representatives in Congress are merely directed to an appropriate agency for assistance. Given such guidance, Ferebee could not avoid the requirements of the order issued by the court below.

[¶ 24.] The circuit court abused its discretion in issuing the portion of the order limiting Ferebee’s access to the government. This restraint on protected speech went too far. We do not declare how precisely the circuit court may proceed to restrict or punish Ferebee if he persists in harassing Hobart. That is not for us to decide at this time. We conclude only that the order fashioned by the court was an absolute prior restraint on protected speech, impermissible under the Constitution, given the facts of this case.

[¶ 25.] Our decision today is in accord with the nature and intent of our stalking statutes. The protection order initially granted by the circuit court fulfilled its purpose. From the time that order was issued, incidents of direct contact between Ferebee and Hobart ceased. Thereafter, the disputes between the parties moved into the governmental arena. Dealing with such issues is an appropriate task of our government agencies and should only be restrained in the rarest of instances. We vacate those portions of the protection order forbidding Ferebee from making complaints to county, state, and federal agencies, and requiring pre-filing and payment of a fee in circuit court.

III.

[¶ 26.] Lastly, we address Ferebee’s complaint that the findings in support of the protection order were clearly erroneous because they declared that he “made threats which place [Hobart] in reasonable fear of death or great bodily injury.” Hobart’s motion to continue the prior protection order made no claim that Ferebee had continued to threaten violence. Furthermore, at the hearing, the circuit court prohibited both sides from offering evidence of threats or violence. In fact, the court specifically stated during the hearing that it “will not enter any order concerning threats,” as defined in the protection order statutes. As a matter of law, therefore, the circuit court erred in entering these findings. However, insofar as this order was an extension of the original protection order, the prohibition against making threats should stand. As to the remainder of Ferebee’s issues, either we find no merit in them or we find it unnecessary to address them given our decision above.

[¶ 27.] Reversed in part, vacated in part, and affirmed in part.

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


author: GILBERTSON, Chief Justice. ZINTER, Justice SABERS, Justice

text:
    2005 SD 12
    Fred Alfred BOSTICK, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.
    No. 23243.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 15, 2004.
    Decided Jan. 19, 2005.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, SD, for petitioner and appellant.
    Steve Miller, Sioux Falls, SD, for respondent and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Petitioner Fred A. Bostick filed a habeas corpus petition alleging ineffective assistance of counsel at his original trial in 1997. After a certificate of probable cause had been issued but before the habeas hearing was held, the Petitioner was paroled from the state penitentiary. The circuit court held Bostick’s parole mooted his right to seek habeas relief in the courts of South Dakota. Bostick appealed contending the conditions of his parole constituted custody and imposed a significant restraint on his liberty within the meaning of SDCL 21-27-1, and therefore he was entitled to seek habeas relief. Affirmed.

FACTS AND PROCEDURE

[¶ 2.] On May 5, 1997, Fred A. Bostick escaped while a prisoner at the Minnehaha County Community Corrections Facility in Sioux Falls, South Dakota. Petitioner was charged with escape in violation of SDCL 22-11A-2, and subsequently convicted by a jury. On February 12, 1998, Petitioner was sentenced by the Honorable Judith Meierhenry to eight years in the state penitentiary.

[¶ 3.] In July 2001, Petitioner filed a pro se habeas action while in custody at the State Penitentiary. Attorney Steve Miller was appointed by the circuit court to assist Petitioner with his request for habeas relief. The State’s motion to dismiss the petition was granted by the circuit court, which then denied a certificate of probable cause. After appeal, this Court issued an order of limited remand, directing that Petitioner’s claim of ineffective assistance of counsel be heard on the merits and decided.

[¶ 4.] In December 2003, prior to the habeas hearing, Petitioner was granted parole effective February 3, 2004. A hearing was held in circuit court to determine if Petitioner’s parole mooted his habeas action. The circuit court ruled the habeas action was mooted by Petitioner’s parole and dismissed the habeas petition.

[¶ 5.] After the circuit court’s dismissal of the habeas action on April 2, 2004, Petitioner requested a certificate of probable cause to appeal the circuit court’s ruling on the issue of mootness. This Court issued an order of limited remand, directing the circuit court to determine the issue of mootness. The sole issue on appeal is one of first impression in South Dakota:

Whether a formerly incarcerated inmate on conditional parole, but not physically confined to a particular facility, is “committed or detained, imprisoned or restrained of his liberty” within the meaning of SDCL 21-27-1 such that a habeas corpus action is not rendered moot.

STANDARD OF REVIEW

[¶ 6.] “Statutory interpretation and application are questions of law.” Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citing Steinberg v. State Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599). We review conclusions of law concerning a writ of habeas corpus under the de novo standard, giving no deference to the lower court’s decisions. Jackson v. Weber, 2001 SD 30, ¶ 9, 637 N.W.2d 19, 22 (citing Jenner v. Dooley, 1999 SD 20, ¶ 11, 590 N.W.2d 463, 468).

[¶ 7.] We use statutory construction to discover the true intent of the legislature in enacting the law, which is ascertained primarily from the language used in the statute. State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612-N.W.2d 600, 611). We confine ourselves to the language used by the legislature in order to determine what the legislature said, rather than what the courts think it should have said. State v. I-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290 (citing Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611). In doing so, we must attempt to give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject. Id.

ANALYSIS AND DECISION

[¶ 8.] Under the South Dakota habeas corpus statute, a petitioner is not entitled to a writ of habeas corpus unless the petitioner is “committed or detained, imprisoned or restrained of his liberty[.]” SDCL 21-27-1 (emphasis added). An appeal by a petitioner who is not committed, detained, imprisoned, or restrained of his liberty, is moot and we will not consider its merits. Moeller v. Solem (Moeller I), 363 N.W.2d 412, 414 (S.D.1985) (citing Application of Painter, 85 S.D. 156, 161, 179 N.W.2d 12, 14 (1970)). Mootness arises when an individual has finished serving his sentence and is discharged from prison or confinement. Ex parte Wilken, 22 S.D. 135, 136, 115 N.W. 1075, 1075 (1908). Mootness also bars habeas relief when an individual is admitted to bail, as that individual is no longer in custody nor restrained of his or her freedom. Painter, 85 S.D. at 159, 179 N.W.2d at 13.

[¶ 9.] Mootness also precludes relief when a petitioner seeks to use the habeas remedy to challenge a prior conviction for which a sentence has been completed, as mootness cannot be overcome based on the possibility that a past criminal conviction may enhance the penalty for a future conviction. Moeller I, 363 N.W.2d at 414. This Court will “not hear any appeal on the assumption that the defendant will commit another crime and be imprisoned again[.]” Id. (quoting Maxwell v. State, 261 N.W.2d 429, 432 (S.D.1978)).

[¶ 10.] Petitioner argues that “restrained of his liberty” encompasses more than physical restraint. Petitioner contends the phrase should be read to include an individual on parole, as such a person is considered to be a prisoner and in custody under this Court’s interpretation of SDCL 23Á-27-36 in State v. Karp, 527 N.W.2d 912 (S.D.1995). In Karp, SDCL 23A-27-36 was used to enhance the third driving-under-the-influence conviction of a probationer, a subject unrelated to habeas relief. SDCL 23A-27-36 pertained to the enhancement of sentences for prisoners who committed crimes, (repealed 2004). The language of the statute itself noted that the definition of prisoner as used in SDCL 23A-27-36 was applicable only to that specific code section. Id.

[¶ 11.] The habeas statutory scheme is codified at SDCL Chapter 21-27. The purpose of the habeas corpus statutory scheme is to provide a process whereby persons illegally restrained of liberty may petition a court for release. SDCL 21-27-1; State v. Jameson, 52 SD 524, 527, 219 N.W.2d 118,119 (1928). No definitions for the terms “committed, detained, imprisoned or restrained of his liberty ” are provided within SDCL 21-27-1, or within Chapter 21-27. However, the statutory scheme in SDCL Chapter 21-27 references actual custody as the prerequisite for habeas relief. SDCL 21-27-3 provides in relevant part:

An application for a writ of habeas corpus shall be in writing and signed by the applicant or some person on his behalf, setting forth the facts concerning his detention and in whose custody he is detained, and shall be accompanied by a copy of the warrant of commitment or other documentary authority, if any, or by an affidavit that such copy has been demanded of the person in whose custody he is detained and by him refused or not given.

(emphasis added).

[¶ 12.] The habeas statutory scheme is replete with references to physical custody. See SDCL 21-27-3, SDCL 21-27-3.2, SDCL 21-27-9.1, SDCL 21-27-9.2, SDCL 21-27-11. SDCL 21-27-9.1 provides the manner in which a habeas writ may be served, noting that it may be served on the person to whom it is directed, “or with any of his subordinates who may be at the place where the applicant is detained.” (emphasis added). SDCL 21-27-9.2 provides the person to whom the writ is addressed “shall produce the body of the applicant before the court at the hearing of the cause of imprisonment or detainer.”

[¶ 13.] Petitioner argues that the federal habeas remedy at 28 U.S.C.A. § 2254(a), which utilizes the word “custody,” has been interpreted by the United States Supreme Court in Jones v. Cunningham as applicable to an individual on parole. 371 U.S. 236, 243-44, 83 S.Ct. 373, 377, 9 L.Ed.2d 285, 291 (1963). Petitioner also urges this Court to consider and follow those jurisdictions that have adopted an expansive view of the term “custody” in state habeas corpus remedies. See In re Azurin, 87 Cal.App.4th 20, 104 Cal.Rptr.2d 284 (2001); In re Horst, 270 Kan. 510, 14 P.3d 1162 (2000); Hoang v. State, 872 S.W.2d 694 (Tex.Crim.App.1993); Monohan v. Burdman, 84 Wash.2d 922, 530 P.2d 334 (1975); Staples v. State, 274 A.2d 715 (Me.1971); State ex rel Atkinson v. Tahash, 274 Minn. 65, 142 N.W.2d 294 (1966); Commonwealth ex rel Ensor v. Cummings, 420 Pa. 23, 215 A.2d 651 (1966); State v. Gray, 406 S.W.2d 580 (Mo.1966); Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965); Schooley v. Wilson, 150 Colo. 483, 374 P.2d 353 (Co.1962). However, an almost equal number of states have held the opposite, that a parolee is not restrained of his or her freedom so as to avail him or herself of the habeas remedy. See People ex rel Williams v. Morris, 44 Ill.App.3d 39, 2 Ill.Dec. 631, 357 N.E.2d 851 (1976); Sorrow v. Vickery, 228 Ga. 191, 184 S.E.2d 462 (1971); People ex rel Wilder v. Markley, 26 N.Y.2d 648, 307 N.Y.S.2d 672, 255 N.E.2d 784 (1970); Williams v. State, 42 Ala.App. 140, 155 So.2d 322 (1963), cert denied, 275 Ala. 702, 155 So.2d 323 (1963); McGloin v. Warden of Maryland House of Correction, 215 Md. 630, 137 A.2d 659 (1958); White v. Gladden, 209 Or. 53, 303 P.2d 226 (1956); State v. Ballard, 15 N.J.Super. 417, 83 A.2d 539 (A.D.1951), aff'd 9 N.J. 402, 88 A.2d 537 (1952); and Ex parte Davis, 11 Okla.Crim. 403,146 P. 1085 (1915).

[¶ 14.] Our state habeas remedy is not as broad as the federal habeas corpus remedy. Painter, 85 S.D. at 161, 179 N.W.2d at 14. Our remedy extends only as far as the language used by our legislature allows, as federal decisions on the application of the federal habeas statute do not control the interpretation of our state habeas remedy. Cowell v. Leapley, 458 N.W.2d 514, 517 (S.D.1990). We need not consider the broader language of other state habeas remedies in light of the narrower language used in our habeas statutory scheme. See Weisbeck v. Hess, 524 N.W.2d 363, 373 (S.D.1994) (holding because the language in a Massachusetts statute was different and broader than the language in the South Dakota statutory scheme, the precedential value of cases interpreting that statute was questionable).

[¶ 15.] In Rennich-Craig v. Russell, our most recent precedent in this area, we determined that a parolee physically confined to a nursing home for medicál assistance and care while on conditional parole was in “custody” for purposes of the habe-as statutory scheme. 2000 SD 49, ¶ 11, n. 4, 609 N.W.2d 123, 126. While incarcerated at the women’s state penitentiary, Ren-nich developed a debilitating illness that required greater medical care than that available at the penitentiary. Id. Ren-nieh’s sentence was commuted by the governor, conditioned on signing a parole agreement with the Board of Pardons and Paroles. Id. The parole agreement physically confined Rennich to a nursing home under the usual terms and conditions of parole. Id. However, in addition to the usual terms and conditions, Rennich was unable to physically depart the nursing facility to attend her habeas hearing without the court’s approval and transportation provided via the sheriff. Id. We held Ren-nich was “in custody and her liberty restrained by the State” and therefore her habeas petition was not moot. Id.

[¶ 16.] In the instant case, Petitioner is not physically confined to or restrained at a particular institution by the terms of his parole. Nor is Petitioner required to reside at a particular location as a part of his parole agreement. While there are several restrictions on his activities, Petitioner is not physically restrained under its terms. Lacking physical restraint, Petitioner cannot be said to be illegally restrained or illegally in the physical custody of any person, much less Douglas Weber, Warden of the South Dakota State Penitentiary.

[¶ 17.] A writ of habeas corpus directed to Douglas Weber, Warden of the South Dakota State Penitentiary would have no effect upon Petitioner, as Weber cannot deliver Petitioner nor release him, as Petitioner is physically free to move about the community and select his own place of residence. See Rennich-Craig, 2000 SD 49, ¶ 30, 609 N.W.2d at 129 (Konenkamp, J., dissenting). Nor is there any legal process whereby Weber can compel Petitioner to appear before the habeas court. Petitioner’s appearance at his 2004 post-parole habeas hearing was by his own free will.

[¶ 18.] It is true that Petitioner is in the legal custody of the Board of Pardons and Paroles until the expiration of his sentence in February 2006. However, a parolee is not “imprisoned,” “detained” or “restrained” physically by the Board. Petitioner cannot be placed back in prison unless he violates the conditions of his parole. In the absence of actual physical custody of the Petitioner, the mere possibility that he may be returned to prison for violating his parole agreement is insufficient to invoke the extraordinary relief afforded by the habeas remedy.

[¶ 19.] While it may seem unfair and overly technical to require Petitioner to be returned to prison in order to avail himself of the habeas corpus remedy, this Court must interpret the laws as written and intended by the legislature. It is not for this Court to interpret our statutory code in a manner that comports with what this, or any other court,, think the code should say. See Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d at 653-54 (citation omitted).

[¶ 20.] We affirm.

[¶ 21.] KONENKAMP, Justice and WILBUR, Circuit Judge, concur.

[¶ 22.] ZINTER, Justice, concurs with a writing.

[¶ 23.] SABERS, Justice, dissents.

[¶ 24.] WILBUR, Circuit Judge, sitting for MEIERHENRY, Justice, disqualified.

ZINTER, Justice

(concurring).

[¶ 25.] I concur and write to emphasize that our precedent has been consistently in line with those courts holding that a parolee is not committed, detained, imprisoned, or otherwise restrained of his liberty sufficient to invoke habeas corpus relief. I also write to address an additional statutory argument raised by Bostick.

[¶ 26.] Although there is a split of authority among other courts on the right to habeas relief following parole, our decision is governed by our prior decisions on this issue. In Moeller v. Solem, 395 N.W.2d 165, 166 (S.D.1986), this Court held that a released prisoner seeking habeas relief is no longer under “restraint of liberty.” Therefore, if a habeas petitioner “is neither committed, detained, imprisoned, nor otherwise restrained of his liberty, the appeal is moot and it is unnecessary to consider the merits of [the request for habeas relief].” Id. (citing Moeller v. Solem, 363 N.W.2d 412, 414 (S.D.1986)). This Court explained:

... the additional burdens placed upon [the petitioner] in the penitentiary, [are] no longer a consideration ... thus, the conviction cannot be said to have some restraint upon his liberty. Inasmuch as we will not assume that [the petitioner] will commit another crime and be imprisoned again we will not entertain this appeal and hereby dismiss it as moot.

Id.

[¶ 27.] Although Bostick contends that we should adopt the contrary position adopted by some other courts, we have previously rejected this invitation. In Application of Painter, 85 S.D. 156, 160, 179 N.W.2d 12, 14 (1970), this Court stated that it was aware of the decision in Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), which concluded that a habeas corpus proceeding was not rendered moot when the petitioner was released from custody. However, we distinguished that federal position noting that “[t]he present federal habeas corpus statute [was] broader than the remedy afforded in this state.” Painter, 85 S.D. at 161, 179 N.W.2d at 14 (citation omitted).

[¶ 28.] Furthermore, after Painter, this Court decided Rennich-Craig v. Russell, 2000 SD 49, 609 N.W.2d 123, in 2000. In Rennich-Craig, three members of this Court determined that under the special facts of that case “Rennich[, a parolee, was factually] under the custody and control of the State, [therefore the] habeas action [was] not moot.” Id. ¶ 11 n. 4. However, three members of this Court also agreed that generally:

a person on parole is not entitled to bring a habeas corpus petition. However, if there is any evidence that such person is being physically confined or otherwise restrained of her liberty, then a habeas action is warranted.

Id. ¶ 27 (Miller, C.J., concurring specially) (emphasis added) (agreeing with Konen-kamp and Gilbertson, J.J., dissenting.)

[¶ 29.] Because the facts of Bostick’s case place him within this general rule, he raises an additional argument under SDCL 24-15-13, another provision of the Habeas Corpus Act. Bostick argues that by adopting that statute, the Legislature defined “custody” to include prisoners on parole.

[¶ 30.] SDCL 24-15-13 provides:

Each parolee shall at all times be considered confined, in the legal custody of the Department of Corrections, and shall remain under conviction for the crime for which the parolee was convicted and sentenced.

Under this statute, Bostick is under the legal custody of the Department of Corrections. However, his argument fails to recognize the difference between physical custody and legal custody. The court in People ex rel Williams v. Morris, 44 Ill.App.3d 39, 2 Ill.Dec. 631, 357 N.E.2d 851 (1976) explained the difference. It explained that, while a parolee is under the legal custody of the Department of Corrections:

a parolee is not imprisoned and is subject to reimprisonment only if he violates a condition of his parole. No one has actual custody or physical control of the parolee, and where, as here, the parolee is at liberty to come into court on his own, there is little sense in directing a writ of habeas corpus to a parole officer or parole board whose only authority to take physical custody of the parolee is dependent upon that parolee’s breaching of a condition of his parole.

Id. at 852. Additionally, “it is fundamental that habeas corpus is available to test the legality of present confinement only, and if the applicant is no longer incarcerated there is nothing for the courts to adjudicate.” Sorrow v. Vickery, 228 Ga. 191, 184 S.E.2d 462 (1971) (internal citations omitted).

Here, Bostick is no longer confined, and he is at liberty to come into court on his own. Because he is on parole, our prior decisions clearly preclude habeas corpus relief. SDCL 24-15-13 does not change that result. I therefore concur.

SABERS, Justice

(dissenting).

[¶ 32.] I dissent for the following reasons:

1. Bostick appeals claiming the conditions of his parole constitute custody and impose a significant restraint on his liberty under SDCL 21-27-1. We previously issued an order of limited remand directing that the claim of ineffective assistance of counsel be heard on the merits. Despite this clear direction, the circuit court ruled that Bostick’s parole mooted his action and dismissed. We should reverse.
2. SDCL 21-27-1 provides:
Any person committed or detained, imprisoned or restrained of his liberty, under any color or pretense whatever, civil or criminal, except as provided herein, may apply to the Supreme or circuit court, or any justice or judge thereof, for a writ of habeas corpus.

(emphasis added). I respectfully submit that the conditions of Bostick’s parole constitute custody and impose significant restraints on his liberty. If he violates even the most minor condition of his parole, his parole officer can have him yanked into court and his parole will be revoked simply on the basis that his conduct was not as good as it should be. It is difficult to think for one moment that this is not a significant restraint on his liberty under SDCL 21-27-1.

3. In paragraph 7 (see footnote below), the majority opinion provides mere “lip service” to the old clichés about attempting to give words their plain meaning and effect, ... and then, because the plain meaning and effect are inadequate to produce the desired effect, it rewrites the statute by inserting the word “physically” in front of “restrained of his liberty.” We are supposed to confíne ourselves to the language used by the legislature to determine what the legislature said, rather than what the courts think it should have said. The majority opinion sets forth the correct law and promptly proceeds to violate it. I will have none of that and I dissent.
4. Incredibly, the majority opinion ends with the following statements in paragraph 19:
While it may seem unfair and overly technical to require Petitioner to be returned to prison in order to avail himself of the habeas corpus remedy, this Court must interpret the laws as written and intended by the legislature. It is not for this Court to interpret our statutory code in a manner that comports with what this, or any other court, think the code should say[.]

To which I can only add: Amen!

[¶ 33.] We should follow the law and not our last minute rewrite of the law. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Rennich-Craig v. Russell, 2000 SD 49, 609 N.W.2d 123; SDCL 21-27-1.

      . SDCL 22-11A-2 provides: "Any prisoner who escapes is guilty of a Class 4 felony.”

      . SDCL 21-27-1 provides:
      Any person committed or detained, imprisoned or restrained of his liberty, under any color or pretense whatever, civil or criminal, except as provided herein, may apply to the Supreme or circuit court, or any justice or judge thereof, for a writ of habeas corpus, (emphasis added).

      . SDCL 23A-27-36, repealed in 2004, provided:
      If any prisoner commits a crime, upon conviction, the sentence of the prisoner shall not commence to run until the expiration of the last sentence of his imprisonment. The term "prisoner” as used in this section includes every person in custody, under arrest, or under process of law issued from a court of competent jurisdiction, (emphasis added).

      . 28 U.S.C. § 2254(a) provides in relevant part:
      The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
      (emphasis added)

      . SDCL 24-15-1.1 provides in relevant part that parole is "the discretionary conditional release of an inmate from actual penitentiary custody before the expiration of the inmate's term of imprisonment. The prisoner remains under the legal custody of the Department of Corrections until the expiration of the inmate’s term of imprisonment."

      . Petitioner’s parole agreement requires advance approval from his probation officer prior to buying or driving an automobile, incurring debts, opening or using a checking account, changing employment or place of residence and pawning.

      . Petitioner filed his habeas corpus petition as a civil action against Weber.

      . A parolee is subject to limitations on the types of activities in which he or she may engage per SDCL 24-15-11.

      . The facts of that case reflected that:
      [w]hile in prison, Rennich developed a debilitating illness, ... which left her confined to a wheelchair. Consequently, the degree of care that she required was beyond that offered in the women’s prison. Therefore, ... Rennich’s sentence [was commuted] conditioned on her signing a parole agreement with the Board of Pardons and Paroles. Pursuant to the agreement, Rennich [was] confined to the Kingsbury Memorial Manor in Lake Preston, South Dakota for medical assistance and care, subject to the usual terms and conditions of parole.
      The following demonstrates some of the limitations of her parole: On October 16, 1998, Rennich formally requested that she be released from the Kingsbury Manor to attend the hearing on her Motion for Summary Judgment. The request, directed to the habeas court, involved the sheriff transporting her to the courthouse. The habeas court denied her request.

        Id. ¶ 11 n. 4.

      . Paragraph 7 of the majority opinion provides:
      We use statutory construction to discover the true intent of the legislature in enacting the law, which is ascertained primarily from the language used in the statute. State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612 N.W.2d 600, 611). We confine ourselves to the language used by the legislature in order to determine what the legislature said, rather than what the courts think it should have said. State v. I-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290 (citing Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611). In doing so, we must attempt to give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject. Id.