author: AMUNDSON, Justice. GORS, Acting Justice

text:
    2002 SD 88
    HEINE FARMS, A Partnership, Gary Heine, Ronald Heine, Gene Heine, Thomas Heine, and Steven Heine, Appellees, v. YANKTON COUNTY, South Dakota, By and Through its COUNTY COMMISSIONERS, Appellant.
    No. 22055.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2002.
    Decided July 24, 2002.
    William J.-Klimisch, Yankton, for appel-lees.
    Robert Chavis, Yankton County States Attorney, Yankton, James G. Abourezk of Abourezk Law Offices, Sioux Falls, for appellant.
   AMUNDSON, Justice.

[¶ 1.] Yankton County appeals a trial court judgment declaring an initiated zoning ordinance illegal and unenforceable and enjoining enforcement of the ordinance. We affirm.

FACTS

[¶ 2.] Heine Farms (Heine) is a partnership made up of five brothers who are residents, landowners and taxpayers in Yankton County. In late 2000, Heine purchased land in Yankton County with plans to establish a large cattle feedlot on the property. Heine contemplated feeding as many as 20,000 cattle in its operation.

[¶ 3.] As Heine’s plans were made known to the public, those opposed to the feedlot circulated an initiative petition to adopt a zoning ordinance that would effectively prevent Heine from operating its planned feedlot. In pertinent part, the ordinance provided specifications for waste management systems but, fatal to the Heine operation, it prohibited a waste management system for more than 7,500 animal units.

[¶ 4.] The initiative petition was filed with the Yankton County Auditor on January 24, 2001. On January 31, the Auditor verified that there were sufficient signatures on the petition to support its submission for a public vote. On the same date, the Yankton County State’s Attorney opined that the petition was sufficient as to form and content to support its submission for a public vote. On February 2, Heine commenced the present action for a declaratory judgment that the initiated zoning ordinance was invalid and for an injunction prohibiting its enforcement. Heine also sought a temporary injunction to prohibit Yankton County from adopting the ordinance and from submitting it for a public vote. The County answered and moved to dismiss Heine’s complaint. A hearing was held on February 5 and Heine’s request for a temporary injunction was denied. Thus, on February 6, the Yankton County Commissioners adopted the proposed ordinance and set it for a county-wide vote on March 20.

[¶ 5.] A court trial on Heine’s action against the County was held on March 15. Immediately before trial, the County renewed its motion to dismiss and argued in the alternative for summary judgment on the basis that Heine’s exclusive remedy was an appeal of the County Commission’s action submitting the initiated ordinance for a public vote. The trial court reserved ruling on Heine’s motions and the trial proceeded.

[¶ 6.] On March 20, the Yankton County voters adopted the initiated ordinance by a vote of 3,790 to 1,714. On April 9, the trial court issued a memorandum decision denying the County’s motions to dismiss and/or for summary judgment. Findings of fact, conclusions of law and a formal order of denial were entered on May 4. On June 13, the trial court entered a memorandum decision holding the initiated ordinance illegal and unenforceable and enjoining Yankton County from enforcing it. Conforming findings, conclusions and a formal judgment were entered on June 26. Yankton County appeals.

ISSUE ONE

[¶ 7.] Did the trial court err in denying Yankton County’s motion to dismiss/motion for summary judgment?

[¶ 8.] Whether the trial court’s ruling on Yankton County’s pretrial motions is reviewed as a denial of a motion to dismiss or as a denial of a motion- for summary judgment, the standards are the same. As recently indicated in Hagemann v. NJS Engineering, Inc., 2001 SD 102, ¶ 4, 632 N.W.2d 840, 842:

This Court’s standard of review of a trial court’s grant or denial of a motion to dismiss is the same standard as that which is applied upon review of a motion [for] summary judgment — “is the pleader entitled to judgment as a matter of law?” Therefore, we review all facts most [favorably] to the [nonmoving] party. We continue to review questions of law, particularly issues of statutory construction, de novo, (citations omitted).

[¶ 9.] Yankton County argues that the trial court erred in denying its motion to dismiss or for summary judgment because an appeal of the County Commission’s action submitting the initiated ordinance for a public vote was Heine’s exclusive statutory remedy. In support of its argument, Yankton County relies principally upon SDCL 7-8-27 and 7-8-32 and this Court’s decisions in Wold v. Lawrence County Com’n, 465 N.W.2d 622 (S.D.1991), Weger v. Pennington County, 534 N.W.2d 854 (S.D.1995) and Ridley v. Laurrence County Com’n, 2000 SD 143, 619 N.W.2d 254.

[¶ 10.] Wold summarizes the rules that make a circuit court appeal the exclusive remedy for a person aggrieved by a county commission decision:

Persons aggrieved of a decision of a board of county commissioners are entitled to appeal that decision pursuant to SDCL 7-8-27. The procedures for all such appeals are detailed in SDCL 7-8-27 through SDCL 7-8-31, inclusive. In 1983, the legislature added SDCL 7-8-32:
Appeal to the circuit court from decisions of the board of county commissioners, as provided in this chapter, is an exclusive remedy. Judicial review of county commission action shall be allowed only as provided in §§ 7-8-27, 7-8-28, 7-8-29, 7-8-30 and 7-8-31.
SD SessL ch 44, § 7 (emphasis added). The plain language of the statute clearly establishes that individuals dissatisfied with county commission decisions can only seek relief by direct appeal of that decision to the circuit court.

Wold, 465 N.W.2d at 624 (emphasis original). Based upon the foregoing principles, this Court held in Wold that the trial court erred in failing to dismiss a declaratory judgment action challenging a commission decision because the action was an impermissible collateral attack on the decision. Similarly, in Weger, this Court upheld the trial court’s dismissal of a declaratory judgment action challenging a commission decision because the action would violate the exclusive appeal remedies provided in SDCL ch 7-8. More recently, in Ridley, this Court upheld the circuit court’s dismissal of a petition for a writ of certiorari challenging a commission decision by adhering to the rule that a circuit court appeal is the sole avenue for relief from a decision of a board of county commissioners.

[¶ 11.] It is notable that in each of the foregoing cases relied upon by Yankton County, it was a decision of a county commission that was being challenged. In Wold, the decision was a waiver of certain zoning requirements. In Weger, the decision concerned personnel appointments to a county air quality board. In Ridley, the decision was the grant of a rezoning request. That only the decisions of a county commission are subject to a circuit court appeal is made clear by the plain language of SDCL 7-8-27 which provides in part: “[f]rom all decisions of the board of county commissioners upon matters properly before it, there may be an appeal to the circuit court by any person aggrieved!.]” (emphasis added). Weger, strongly relied upon by Yankton County, makes reference to the type of commission decision that constitutes an appealable decision under SDCL ch 7-8. As noted in Weger:

In Codington County v. Board of Commissioners, 51 S.D. 131, 212 N.W. 626 (1927), we held the word “decision” in the predecessor statute to SDCL 7-8-27 and 7-8-28 means a determination quasi-judicial in nature and it is only from a quasi-judicial determination that an appeal will lie. We do not reach the issue [of] whether Pennington County’s action in appointing board members is quasi-judicial or administrative in nature since the issue has not been briefed and argued.

Weger, 534 N.W.2d at 857 nl (some citations omitted). The definition of an ap-pealable commission decision was explored in greater detail in the Codington County case cited above. Quoting with approval from Fulkerson v. Stevens, 31 Kan. 125, 1 P. 261 (1883), this Court observed:

[W]hat are the limitations upon the privilege of persons to take appeals from the decisions of the board of county commissioners? The district court is simply a court, and exercises only judicial power; hence we would suppose that appeals from the board of county commissioners to the district court must be limited to such cases as require the exercise of purely judicial powers; and therefore that when the board of county commissioners exercises political power or legislative power, or administrative power, or discretionary power, or purely ministerial power, no appeal will lie.

Codington County, 51 S.D. at 134, 212 N.W. at 627 (emphasis added).

[¶ 12.] “Ministerial power” was defined in First Nat. Bank v. Hirning, 48 S.D. 417, 421, 204 N.W. 901, 903 as follows:

When the law requires a public officer to do a specified act in a specified way, upon a conceded state of facts, without regard to his own judgment as to the propriety of the act, and with no power to exercise discretion, the duty is ministerial, and may be controlled by mandamus. (quoting Farmers’ Loan and Trust Bank v. Hirming, 42 S.D. 52, 172 N.W. 931(19)).

Applying the concept of ministerial power in a more recent case, this Court held in Willoughby v. Grim, 1998 SD 68, ¶ 9, 581 N.W.2d 165, 168, that a township’s duty to maintain its roads is ministerial. In reaching its holding, this Court observed:

[T]he words “shall” and “all” in SDCL 31-13-1, indicate the Legislature intended to create a compulsory obligation to repair and maintain all township roads. “[T]he term, shall, manifests a mandatory directive and does not confer any discretion in carrying out the action so directed.” Therefore, the duty to maintain township roads is ministerial and [a] proper subject for mandamus when a township fails or refuses to act according to statute, (citations omitted).

[¶ 13.] Like the statute under consideration in Willoughby, the statute defining a county commission’s duty with regard to an initiative petition uses compulsory language. It provides in pertinent part:

When a petition to initiate is filed with the auditor, he shall present it to the board of county commissioners at its next regular or special meeting. The board shall enact the proposed ordinance or resolution and shall submit it to a vote of the voters in the manner prescribed for a referendum within sixty days after the final enactment.

SDCL 7-18A-13 (emphasis added). Just as with the statute considered in Willough-by, the word “shall” in this statute indicates a legislative intent to create a compulsory obligation. Here, the compulsory obligation is to enact an initiated ordinance and to submit it for a public vote. The statute confers no discretion on the commission in carrying out this action. Therefore, the duty or power to enact and submit the ordinance is purely ministerial. Under the settled law previously discussed, no appeal lies from a purely ministerial act of a county commission. It follows that an appeal was not a remedy, let alone an exclusive remedy, for Heine in this case. Thus, the trial court did not err in denying Yankton County’s motion to dismiss or motion for summary judgment on the basis of the exclusivity of the remedy of appeal.

ISSUE TWO

[¶ 14.] Did the trial court err in holding Yankton County’s initiated zoning ordinance is illegal and unenforceable?

[¶ 15.] The trial court held a comprehensive plan for the county is a necessary predicate for enactment of a zoning ordinance. Finding that Yankton County has no such plan, the trial court further held that the County’s initiated zoning ordinance was illegal and unenforceable. Arguing that no restriction applicable to the right of initiative makes a comprehensive plan a necessary predicate for an initiated zoning ordinance, Yankton County contends that the trial court erred in its holding.

[¶ 16.] Throughout its extensive discussion of the right of initiative, the County completely ignores a 'basic limitation on that right. As this Court held in Custer City v. Robinson, 79 S.D. 91, 93, 108 N.W.2d 211, 212 (1961): “It is fundamental that an ordinance or resolution proposed by the electors of a municipality under the initiative law must be within the power of the municipality to enact or adopt.” Although this holding was reached in the context of initiated municipal ordinances, the principle is equally applicable to initiated county ordinances. See 20 CJS Counties § 89 (1990)(the only initiated legislation that may be submitted to the voters is legislation that the county board has jurisdiction and power to enact).

[¶ 17.] A county commission has only those powers as are expressly conferred upon it by statute and such as may be reasonably implied from the powers expressly granted. See State v. Quinn, 2001 SD 25, ¶ 10, 623 N.W.2d 36, 38 (county has only such powers as are expressly conferred by statute and those reasonably implied from the powers expressly granted). Here, the statutory grant of power for county commissions to adopt zoning ordinances is contained in SDCL 11-2-13:

For the purpose of promoting health, safety, or the general welfare of the county the board may adopt a zoning ordinance to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot’ that may be occupied, the size of the yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, resi-denee, flood plain, or other purposes, (emphasis added).

The term “zoning ordinance” is defined in SDCL-ll-2-l(10) as, “any ordinance adopted by the board to implement the comprehensive plan by regulating the location and use of buildings and uses of land.” (emphasis added). In this instance, it is undisputed that Yankton County had no “comprehensive plan” as described by SDCL ll-2-l(10). Therefore, as reasoned by the trial court, it was impossible for the Yankton County Commission to adopt an ordinance “implement[ing][a] comprehensive plan” that did not exist.

[¶ 18.] A “comprehensive plan” is a document which:

describes in words, and may illustrate by maps, plats, charts, and other descriptive matter; the goals, policies, and objectives of the board to interrelate all functional and natural systems and activities relating to the development of the territory under its jurisdiction!)]

SDCL 11-2-1(3). Obviously, the Yankton County Commission could not enact a zoning ordinance implementing the goals, policies and objectives of a comprehensive plan for the development of the County if there was no comprehensive plan setting forth those goals, policies and objectives. If the Yankton County Commission could not adopt such an ordinance, neither could the residents of Yankton County through their right of initiative. Custer City, supra. Thus, the trial court correctly determined the ordinance adopted by initiative was invalid and unenforceable.

[¶ 19.] Affirmed.

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

[¶ 21.] GORS, Acting Justice, dissents.

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

GORS, Acting Justice

(dissenting).

[¶ 23.] I respectfully dissent. South Dakota is the cradle of the initiative and referendum, becoming the first state to give legislative power to its citizens in 1898. Christensen v. Carson, 533 N.W.2d 712, 714 (S.D.1995). The Legislature has extended the initiative and referendum to counties, SDCL 7-18A-9, and municipalities, SDCL 9-20. The people’s power to initiate legislation is plenary, curbed only by the South Dakota Constitution and statutes. Byre v. City of Chamberlain, 362 N.W.2d 69, 79 (S.D.1985). Zoning and rezoning are legislative acts.

Taylor Properties, Inc. v. Union County, 1998 SD 90, ¶ 18, 583 N.W.2d 638, 642. Here, the majority allows the county commission’s failure to adopt a comprehensive plan to trump the clearly expressed will of the people. In Vitek v. Bon Homme County, 2002 SD 45, ¶¶ 10-12, 644 N.W.2d 231, 234-35, we noted that Taylor stands for the proposition that citizen legislation on zoning is a traditional right of the voters to override the view of their elected representatives as to what serves the public interest and to legislate on the subject for themselves. In the absence of action by the county commission, the people of Yankton County have spoken and should not only be heard but heeded as well.

      . Consistent with the rules on conversion of a motion to dismiss to a motion for summary judgment, the trial court afforded counsel for Heine an opportunity to submit any supplemental briefs and affidavits necessary to respond to a motion for summary judgment. See Eide v. E.I. Du Pont De Nemours & Co., 1996 SD 11, ¶ 5, 542 N.W.2d 769, 770 (if court intends to treat motion to dismiss as one for summary judgment, it must advise parties of such intent and provide them with reasonable opportunity to present all material pertinent to such motion).

      . On the request and agreement of the parties, the trial court took judicial notice of the outcome of the vote on the initiated ordinance.

      . Statutes mandating preparation of comprehensive zoning plans by the counties were passed as early as in 1967. See 1967 SDSessL ch 20, § 2. Preparation of the plans was not made completely discretionary for almost ten years. See 1977 SDSessL ch 104,

      . A large part of the trial court’s memorandum decision was devoted to the question of whether some preliminary efforts to implement a "comprehensive plan” in Yankton County in the early 1990's constituted a "comprehensive plan” as defined by law. The trial court's findings reflect that these preliminary efforts were not completed and were ultimately thwarted by a referendum rejecting some proposed ordinances in 1993. The trial court determined these preliminary efforts did not constitute a comprehensive plan and Yankton County raises no argument to the contrary. Its rendition of the facts in its brief states that, "by the year 2001, Yank-ton County had in effect neither a comprehensive plan nor a zoning ordinance.” (emphasis added). In the argument portion of its brief, Yankton County defines the issue as, "whether or not the voters ... can, by Initiative, enact a zoning ordinance to limit the size of feedlots ... when the County has neither a comprehensive plan nor a general zoning ordinance, as is the case in Yankton County.” (emphasis added). Thus, it is clear that there is no appellate dispute between the parties over the fact that Yankton County did not have a “comprehensive plan” as that term is used in SDCL 11-2-1(10).

      .In reaching this result, we do no violence to the rights of initiative and referendum. The dissent acknowledges there are limitations on these rights and that they are, "curbed ... by the South Dakota Constitution and statutes.” Yet, it would ignore these limitations by permitting the Yankton County electorate to accomplish by initiative what its elected county commission could not accomplish directly, the enactment of an ad hoc zoning ordinance in the absence of a comprehensive zoning plan for the county. Such a result would run afoul of the principle that initiated legislation must be within the jurisdiction and power of a county board to enact. See 20 CJS Counties § 89 (1990); Custer City, supra.


source: Caselaw Access Project

author: GORS, Acting Justice (on reassignment). BASTIAN, Circuit Judge

license: Public Domain

text:
    2002 SD 87
    MOBILE ELECTRONIC SERVICE, INC., Plaintiff and Appellee, v. FIRSTEL, INC., Defendant and Appellant.
    No. 21818.
    Supreme Court of South Dakota.
    Considered on Briefs on Oct. 01, 2001.
    Reassigned March 19, 2002.
    Decided July 24, 2002.

      Steven R. Nesson, Sioux Falls, for plaintiff and appellee.
    Debra S. Sittig of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for defendant and appellant.
   GORS, Acting Justice (on reassignment).

[¶ 1.] FirsTel, Inc. (FirsTel) appeals the decision of the trial court denying its motion to dismiss. FirsTel claimed that its liability to Mobile Electronics Service, Inc. (Mobile) for failure to change Mobile’s phone numbers from “unlisted” to “listed” is limited by a tariff filed with the South Dakota Public Utilities Commission (PUC) and incorporated by reference in the listing contract with Mobile. We affirm.

FACTS AND PROCEDURE

[¶ 2.] FirsTel is one of several providers of local telephone exchange services in South Dakota. One of the services that it provides is classifying clients’ telephone numbers as “business” or “residential” and “listed” or “unlisted.” Mobile is a Sioux Falls business that entered into a contract with FirsTel for local telephone service.

[¶ 3.] Mobile alleges that in May of 1999, it contacted U.S. West Dex (Dex) to have Mobile’s telephone numbers listed in the business white pages and to have an advertisement in the yellow pages. Dex advised Mobile that its phone numbers could not be published in the white pages because FirsTel classified Mobile’s business numbers as “unlisted.” Mobile claims that it immediately contacted FirsTel and was assured that the classification would be changed in time for Dex to include Mobile in the publication of the 1999-2000 directory. When the Dex directories were distributed months later, Mobile’s telephone number was not included in the business white pages. Mobile also found that its business number was still classified as “unlisted,” despite FirsTel’s previous assurances.

[¶ 4.] Mobile sued FirsTel for breach of contract and ordinary negligence, seeking damages for loss of business and the cost of additional advertising. FirsTel moved to dismiss, claiming that Mobile was barred by a tariff that limited Mobile’s damages to the proportionate charge for the service for the period during which the service was affected. Mobile then moved to amend its complaint to include a claim that including the tariff created an illegal contract adhesion and therefore was unenforceable. Mobile also sought to amend its negligence claim and additionally assert that FirsTel’s acts were intentional and reckless.

[¶ 5.] The trial court denied FirsTel’s motion to dismiss and granted Mobile’s motion to amend, concluding that the tariff was an unconstitutional delegation of legislative authority. FirsTel appeals.

STANDARD OF REVIEW

[¶ 6.] This Court’s standard of review of a trial court’s grant or denial of a motion to dismiss is the same standard that is applied upon review of a motion of summary judgment: ‘is the pleader entitled to judgment as a matter of .law?’ We review all facts in a light most favorable to the nonmoving party. In reviewing under this standard, we give no deference to the trial court’s conclusions of law.

Hansen v. Kjellsen, 2002 SD 1, ¶ 6, 638 N.W.2d 548, 549 (internal citations omitted).

ANALYSIS AND DECISION

[¶ 7.] On May 29, 1998, FirsTel filed a telephone tariff with the PUC. Section 2.4.1.A of the tariff provides:

The Company’s liability, if any, for its willful misconduct is not limited by this tariff. With respect to any other claim or suit by a Customer or by any others, for damages associated with the installation, provision, termination, maintenance, repair or restoration of a service, and subject to the provisions following, the Company’s liability, if any, shall not exceed an amount equal to the proportionate charge for the service for the period during which the service was affected. This liability for damages shall be in addition to any amounts that may otherwise be due the Customer under this tariff as a Credit Allowance for Interruptions.

(emphasis added). The contract between Mobile and FirsTel is preprinted on the front and back on one sheet of paper. The contract does not state that FirsTel’s liability is limited. The tariff is not set out in the contract. The only mention of any tariff is contained in this oblique statement on the back of the contract:

FirsTel provides service in accordance with applicable Tariffs for the state or federal jurisdiction in which Service is provided, incorporated herein by this reference.

FirsTel argues that a telephone company may limit its liability for negligence and breach of contract through tariff provisions. They claim that the tariffs act to protect the public' from increased utility rates. Mobile concedes that the Legislature may constitutionally delegate regulation of telecommunication tariffs to the PUC. Mobile argues, however, that Fir-sTel may not insulate itself from liability for ordinary negligence and breach of contract by unilaterally drafting and filing a tariff with the PUC and then incorporating it by reference " in the contract. We agree.

[¶ 8.] In Rozeboom v. Northwestern Bell Tel. Co., 358 N.W.2d 241 (S.D.1984), this Court determined that a similar agreement between a telecommunications company and- the PUC was an illegal contract of adhesion. Rozeboom, 358 N.W.2d at 242. In Rozeboom, a citizen operated a business, Rozy’s Electric, out of his home and for years had-placed ads in the yellow page section of the local telephone directory. His yellow page ad was left out in May of 1980. Rozeboom brought suit claiming $25,000 in damages. Northwestern Bell had a limitation of liability clause in its contract for directory listings. The contract in Rozeboom provided:

If the Telephone Company shall omit said advertisement or any additional advertising from any issue of its directory, in whole or in part, or shall make errors therein, its liability therefor shall in no event exceed the amount of the charges for the advertising which was omitted or in which the error occurred in such directory issue.

Id. (emphasis added). This Court determined that this agreement was a contract of adhesion, that it was unconscionable, and that it should not be enforced as a matter of public policy. Id. at 242-43. This Court stated, “[t]he PUC cannot become a body to regulate claims for damages wrought in private contract. To regulate tariffs, schedules, directories, and listings is one thing, but to adjudicate on monetary rights arising thereunder is conceptually different.” Id. at 245-46.

[¶ 9.] FirsTel’s inclusion of the tariff filed with the PUC by reference in the contract creates an illegal contract of adhesion, and the contract is unconscionable and unenforceable. Mobile did not participate in the drafting of FirsTel’s tariff. Mobile did not negotiate the tariff with either FirsTel or the PUC. The pre-printed form did not even set forth the tariff but merely incorporated all tariffs by reference. This Court has previously declared that “[o]ne-sided agreements whereby one party is left without a remedy for another party’s breach are oppressive and should be declared unconstitutional.” Durham v. Ciba-Geigy Corp., 315 N.W.2d 696, 700 (S.D.1982). The Legislature cannot constitutionally delegate authority to the PUC to approve tariffs that limit or deny contract and tort remedies. Rozeboom, 358 N.W.2d at 246-47; SD Const art VI § 20.

[If 10.] FirsTel argues the Rozeboom was narrowly based on the facts of the case, and is therefore inapplicable to the case at bar. In Rozeboom we acknowledged:

It is crucial to understand that this case involves an individual versus a monopoly. We do not have two corporations dealing at arms length nor two individuals dealing at arms length. We have a factual scenario where the bargaining power is wholly unequal. As a result of that economic inequality and monopoly of [the phone company], the terms of this contract became substantively unreasonable and should not be enforced. We do not suggest that simply because this contract is standardized and pre-printed, ipso facto, it is unenforceable as a contract of adhesion. Rather, we hold that the terms of this specific standardized contract are unreasonable, oppressive and therefore unconscionable.

Rozeboom, 358 N.W.2d at 245.

[¶ 11.] FirsTel claims that since there are other avenues of advertising available to Mobile, FirsTel should not be liable. However, it is not rational to claim that a commercial business can compete without listing its telephone number in the telephone directory. “The issue ... is not whether there are other forms of advertising available but whether such other modes are tied directly to the telephone service enjoyed by almost every home and business in the state.” Morgan v. South Cent. Bell Tel. Co., 466 So.2d 107, 117 (Ala.1985). Other businesses are faced with full liability for negligence and breach of contract. FirsTel cannot shield itself from liability by this tariff.

[¶ 12.] We acknowledge that at the time Rozeboom was decided, the majority of jurisdictions upheld provisions that limited phone companies’ liability in omitting or erroneously listing numbers or advertisements in a directory. Id. at 247-48 (Fosheim, C.J., dissenting). We also acknowledge that eighteen years later, Roze-boom continues to enjoy its minority status. However, we addressed this precise argument in Rozeboom, stating:

We fully appreciate that our viewpoint is not the traditional viewpoint in this Nation. The righteousness of a cause is often solitary and perhaps time will better serve our pronouncement. In a democratic society, we persevere under a system of laws where change is inevitable .... Here, we associate with change rooted in simple fairness and opposed to basic oppression.

Id. at 246.

[¶ 13.] Rozeboom controls. The tariff provisions unilaterally filed with the PUC and included in the contract by reference that attempts to limit liability created an illegal contract of adhesion and are unenforceable. Mobile has the right to sue for negligence and breach of contract for the detriment caused to its business. As this Court declared in Rozeboom, “[justice demands that an aggrieved party reach out and touch the cause of his grievance.” Id. at 246.

[¶ 14.] Affirmed.

[¶ 15.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 16.] AMUNDSON, Justice, and BASTIAN, Circuit Judge, dissent.

[¶ 17.] BASTIAN, Circuit Judge, sitting for SABERS, Justice, disqualified.

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

BASTIAN, Circuit Judge

(dissenting).

[¶ 19.] I respectfully dissent. . I agree that Firstel is not immunized from Mobile’s allegations that Firstel acted intentionally and recklessly but I would enforce Firstel’s tariff and hold that it applies to Mobile’s damage claims for breach of contract and ordinary negligence.

[¶ 20.] This Court’s decision in Rozeboom was based on Allen v. Michigan Bell Telephone Co., 18 Mich.App. 632, 171 N.W.2d 689 (1969). In Allen, plaintiff, an insurance agent, signed a contract with defendant, Michigan Bell Telephone Company, to place advertisements in defendant’s telephone directory. At the time, defendant was the sole provider of telephone directories in the area. When defendant failed to print the advertisements and plaintiff subsequently sued, defendant argued that a limitation of liability clause in the contract protected it from having to pay damages. Defendant moved for and was granted summary disposition.

[¶ 21.] On appeal, the Michigan Court of Appeals found that the limitation of liability clause was unconscionable because of plaintiffs lack of options and bargaining power as compared to the defendant. Id. at 692. See also Michigan Ass’n of Psychotherapy Clinics v. Blue Cross & Blue Shield of Michigan, 101 Mich.App. 559, 574, 301 N.W.2d 33, 40 (1980). The Court’s primary concern was that plaintiff was contracting with a’public utility which had a monopoly on the type .of advertising sought. Michigan Ass’n of Psychotherapy Clinics, 301 N.W.2d at 40.

[¶ 22.] At the time Rozeboom was decided and thereafter, the vast majority of jurisdictions have upheld provisions that limit the liability of telephone companies in omitting or erroneously listing numbers or advertisements in a directory. Rozeboom and Allen and virtually all other cases with similar holdings were decided before the deregulation of the telecommunication industry.

[¶ 23.] Many of the courts that have upheld limitation of liability clauses have recognized that in providing its service, a telephone company is significantly different from a private business because it must operate under the rules of a state regulatory commission.

[¶ 24.] A telephone company’s duty to provide adequate service is inextricably connected to its rates and expenses, including its potential liability for errors and omissions. See e.g. Prior v. GTE North Incorporated, 681 N.E.2d at 773. It is the responsibility of the state regulatory commission to find a balance among these factors. Prior v. GTE North Incorporated, 681 N.E.2d at 773-774. A tariff merely represents a trade-off between providing customers with a relatively low-cost service and ensuring that the utility will provide reasonably adequate service. Prior v. GTE North Incorporated, 681 N.E.2d at 774.

[¶ 25.] The majority essentially holds that Firstel’s tariff is unconscionable and unenforceable per se. The facts of this case, however, differ from those presented in Rozeboom and Allen. In both cases plaintiffs were private individuals bringing a lawsuit against the Bell Telephone monopoly. Here, both litigants are corporations and the Bell Telephone monopoly no longer exists.

[¶ 26.] In Rozeboom the limitation of liability clause completely immunized the telephone company from all legal actions including breach of contract, ordinary negligence, willful and wanton misconduct, and deliberate and intentional conduct. Here, as noted by the majority, Firstel’s tariff does not protect it from Mobile’s allegations of intentional and reckless acts. In Rozeboom and Allen, the defendant was the party that omitted the listing or advertising from its own directory. Here, the defendant telephone company . allegedly failed to properly classify a telephone number which prevented it from being listed in another company’s directory.

[¶ 27.] Moreover, Mobile has failed to plead the very facts upon which the holdings in Rozeboom and Allen are essentially based. Mobile does not allege, for example, that it had no choice but to contract with Firstel. Mobile does not allege that Firstel holds a monopoly on providing telephone service in the area. It does not allege that its bargaining power was unequal.

[¶ 28.] Therefore, based on the abundance of legal precedent and the dearth of factual underpinnings I would hold that Mobile’s claim for damages for breach of contract and ordinary negligence is subject to and limited by Firstel’s tariff.

[¶ 29.] AMUNDSON, Justice, joins this dissent.

      . There is no dispute that the tariff does not insulate FirsTel from Mobile’s claim that Fir-sTel acted intentionally and recklessly. That claim is analogous to "willful misconduct,” which is specifically excluded by the terms of the tariff.

      . For a list of jurisdictions that have previously enforced provisions limiting phone companies’ liability, see Rozeboom, 358 N.W.2d at 247-248 (Fosheim, C.J., dissenting).

      . In addition to Rozeboom and Allen, cases that reject exculpatory clauses include Discount Fabric House of Racine, Inc. v. Wisconsin Telephone Co., 117 Wis.2d 587, 345 N.W.2d 417 (1984); Morgan v. South Central Bell Telephone Co., 466 So.2d 107 (1985); and Reuben H. Donnelley Corp. v. McKinnon, 688 S.W.2d 612 (Tex.App.1985); Pigman v.

        Ameritech Publishing, Inc., 641 N.E.2d 1026 (Ind.App.1994) (overruled) 700 N.E.2d 1128 (Ind.1998). A majority of tribunals in other states that have addressed this issue have upheld the validity of such clauses: Mendel v. Mountain States Tel. & Tel. Co., 117 Ariz. 491, 573 P.2d 891 (1977); Robinson Ins. & Real Estate, Inc. v. Southwestern Bell Tel. Co., 366 F.Supp. 307 (W.D.Ark.1973); Davidian v. Pacific Tel. & Tel. Co., 16 Cal.App.3d 750, 94 Cal.Rptr. 337 (1971); University Hills Beauty Acad., Inc. v. Mountain States Tel. & Tel. Co., 38 Colo.App. 194, 554 P.2d 723 (1976); Ed Fine Oldsmobile, Inc. v. Diamond State Tel. Co., 494 A.2d 636 (Del.1985); Neering v. Southern Bell Tel. Co., 169 F.Supp. 133 (S.D.Fla.1958); Advance Service, Inc. v. General Tel. Co. of Fla., 187 So.2d 660 (Fla.App.1966); Southworth & McGill, P.A., v. Southern Bell Telephone and Telegraph Co., 580 So.2d 628 (Fla.App. 1 Dist. 1991); Southern Bell Tel. & Tel. Co. v. C & S Realty Co., 141 Ga.App. 216, 233 S.E.2d 9 (1977) (overruled in part on other grounds); Georgia-Carolina Brick and Tile Co. v. Brown, 153 Ga.App. 747, 266 S.E.2d 531 (1980); McClure Engineering Assocs., Inc. v. Reuben Donnelley Corp. 101 Ill.App.3d 1109, 57 Ill.Dec. 471, 428 N.E.2d 1151 (Ill.App.1981) aff'd., 95 Ill.2d 68, 69 Ill.Dec. 183, 447 N.E.2d 400; Pinnacle Computer Services, Inc., v. Ameritech Publishing, Inc., 642 N.E.2d 1011 (Ind.App.1994); Prior v. GTE North Incorporated, 681 N.E.2d 768 (Ind.App.1997); Trimble v. Ameritech Publishing, Inc., 700 N.E.2d 1128 (Ind.1998); Woodburn v. Northwestern Bell Tel. Co., 275 N.W.2d 403 (Iowa 1979); Holman v. Southwestern Bell Tel. Co., 358 F.Supp. 727 (D.Kan.1973); Louisville Bear Safety Serv., Inc. v. South Cent. Bell Tel. Co., 571 S.W.2d 438 (Ky.App.1978); Wilson v. Southern Bell Tel. & Tel. Co., 194 So.2d 739 (La.App.1967); Baird v. Chesapeake and Potomac Tel. Co., 208 Md. 245, 117 A.2d 873 (1955); Alpha One v. NYNEX Information Resources, 2 Mass.L.Rptr. 568 (Mass.Super.1994); St. Paul Fire & Marine Ins. Co. v. Guardian Alarm, 115 Mich.App. 278, 283-284, 320 N.W.2d 244 (1982); All Makes S-V, Inc. v. Ameritech Publishing, Inc., 2001 WL 951381 (Mich.App.); Ezell v. Bellsouth Telecommunications, Inc., 961 F.Supp. 149 (S.D.Miss.1997); Warner v. Southwestern Bell Tel. Co., 428 S.W.2d 596 (Mo.1968); Tobler’s Flowers, Inc., v. Southwestern Bell Telephone Co., 632 S.W.2d 15 (Mo.App.1982); Montana ex rel. Mountain States Tel. & Tel. Co., 160 Mont. 443, 503 P.2d 526 (1972); Bernstein v. G.T.E. Directories Corp., 631 F.Supp. 1551 (D.Nev.1986); Bulb-man v. Nevada Bell, 108 Nev. 105, 825 P.2d 588 (1992); PK’s Landscaping v. New England Tel. & Tel. Co., 128 N.H. 753, 519 A.2d 285 (1986); Federal Building Serv. v. Mountain States Tel. & Tel. Co., 76 N.M. 524, 417 P.2d 24 (1966); Hamilton Employment Serv. v. New York Tel. Co., 253 N.Y. 468, 171 N.E. 710 (1930); Gas House v. Southern Bell Tel. & Tel. Co., 289 N.C. 175, 221 S.E.2d 499 (1976); North Carolina ex rel Utilities Comm. v. Southern Bell Tel. & Tel. Co., 307 N.C. 541, 299 S.E.2d 763 (1983); Cunha v. Ohio Bell Tel. Co., 26 Ohio Misc. 267, 271 N.E.2d 321 (1970); Wheeler Stuckey, Inc. v. Southwestern Bell Tel. Co., 279 F.Supp. 712 (W.D.Okla.1967); Vails v. Southwestern Bell Tel. Co., 504 F.Supp. 740 (W.D.Okl.1980); Georges v. Pacific Tel. & Tel. Co., 184 F.Supp. 571 (D.Or.1960); Behrend v. Bell Tel. Co. of Pa., 257 Pa.Super. 35, 390 A.2d 233 (1978); Pride v. Southern Bell Tel. & Tel. Co., 244 S.C. 615, 138 S.E.2d 155 (1964); Pilot Indus, v. Southern Bell Tel. and Tel. Co., 495 F.Supp. 356 (D.C.S.C.1979); Smith v. Southern Bell Tel. & Tel. Co., 51 Tenn.App. 146, 364 S.W.2d 952 (1962); Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330 (Utah 1985); McTighe v. New England Tel. & Tel. Co., 216 F.2d 26 (2dCir.1954); Allen v. General Tel. Co. of the Northwest, 20 Wash.App. 144, 578 P.2d 1333 (1978).


author: GORS, Acting Justice.

text:
    2002 SD 86
    STATE of South Dakota, Plaintiff and Appellee, v. Harold RUNNING BIRD, Defendant and Appellant.
    No. 22023.
    Supreme Court of South Dakota.
    Considered on Briefs March 25, 2002.
    Decided July 24, 2002.

      Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, for plaintiff and appellee.

      Michael Stonefield, Paula D. Camp, Office of Public Defender for Pennington County, Rapid City, for defendant and appellant.
   GORS, Acting Justice.

[¶ 1.] Harold Running Bird (Running Bird) appeals a final judgment of conviction for kidnapping and second degree rape. We affirm.

FACTS AND PROCEDURE

[¶ 2.] In August of 2000, Katinka Stegeman (Katinka) traveled to Rapid City, South Dakota from Holland. She was twenty-four years old, and came to South Dakota to learn more about the Native American culture.

[¶ 3.] On August 13, Katinka went to the Pennington County fairgrounds and met Harold Running Bird (Running Bird) and Edna Eagleman (Edna). The three drank beer together and later went shopping for a sleeping bag and tent for Katin-ka. Katinka also purchased more beer to share with a group of other Native Americans she had met at the fairgrounds. Running Bird, Edna and Katinka returned to the fairgrounds around 11:00 p.m. Shortly thereafter, Running Bird helped Katinka put up her tent. Katinka then placed her belongings in her tent, said goodnight to the group, and went to sleep in her tent.

[¶ 4.] Later in the evening, Running Bird entered Katinka’s tent. She asked him to leave, and he refused, so she left her tent and walked to the restroom. Ka-tinka stayed in the restroom for one half hour to forty-five minutes. When she returned to her tent, her sleeping bag and all of her personal belongings were gone. This included her two backpacks, which contained her coat, wallet, insurance card, railroad pass, bank card, Dutch money, and telephone card.

[¶ 5.] Upon realizing all of her property was gone, she looked up and saw Running Bird coming towards her. Running Bird told Katinka that he and Edna had moved their campsite and packed up Katinka’s belongings. Running Bird then helped Katinka take her tent down, and together they walked to the new campsite, which was down by a creek.

[¶ 6.] As soon as they reached the campsite, Running Bird grabbed Katinka from behind and pushed her into some bushes. Edna then started pushing grass into Katinka’s face. Running Bird threatened Katinka that if she did not obey his commands, he would drown her in the creek. Running Bird then rolled Katinka on her back, pulled up her shirt, and fondled her breasts. He then removed her pants by breaking her zipper. Katinka screamed for help, which resulted in Running Bird hitting her in the left eye with his fist. Running Bird then pushed his finger into her vagina and made unsuccessful attempts to enter her vagina with his penis. Subsequently, Running Bird again violated Katinka with his fingers. After a second unsuccessful attempt to enter her vagina with his penis, Running Bird forced his penis into Katinka’s mouth.

[¶ 7.] Running Bird then turned to Edna who had lain down next to Katinka. He engaged in sexual acts with Edna. Ka-tinka stayed because she was afraid to get up to leave. Running Bird then continued his attack on Katinka by performing oral sex on her. He then violated her vagina with his penis. Katinka described it as being “very painful.” She began screaming as she felt her vagina tearing. Edna also sexually assaulted Katinka by biting her breasts and tongue, and sitting on Katinka’s head in an attempt to force Ka-tinka to perform oral sex.

[¶ 8.] After Running Bird ejaculated, he got dressed. Katinka also got dressed and began, unsuccessfully, to look for her cellular phone. She then started searching for her original campsite, and in the process she found a police car, which Officer Trent Pettis was driving. Officer Pet-tis testified that as Katinka approached the police car she was “hysterical” and screaming while waving her arms. He also noticed red marks on her face. Katin-ka was speaking with an accent, but Officer Pettis understood her to be saying “rape.” He then drove her to the hospital.

[¶ 9.] At the hospital Katinka met nurse Leah Walker (Walker). Walker examined Katinka and found scratches and abrasions on her back. Katinka also had bruising and swelling on her face, dried blood in her nose, a laceration on her tongue, and a bruise on her breast.

[¶ 10.] Dr. Raymond Burnett, an obstetrician and gynecologist, also examined Katinka. Dr. Burnett testified that when he first saw Katinka, he thought she had been in a fight since she had bruises on her face and her vagina was bleeding. As a result of her injuries, Dr. Burnett put her under anesthesia to surgically repair her vagina. Katinka had suffered a tear down the midline of her hymen “across the soft tissue called the introitus and down on the skin between the vagina and the anus.” She also suffered two other tears in that area. Dr. Burnett needed to use sutures on two of the three tears.

[¶ 11.] Running Bird was eventually located at a construction work site in Box Elder. He was taken to Rapid City and was interviewed by Officer Brian Mueller (Officer Mueller). Additionally, Running Bird’s car was searched and seized. In the car police found Katinka’s belongings.

[¶ 12.] Running Bird was charged with second-degree rape, simple assault, and two counts of kidnapping. A jury trial was held on February 26-28, 2001. The jury was unable to reach a verdict, and a mistrial was declared. A retrial commenced on April 23, 2001.

[¶ 13.] At the retrial Dr. Burnett testified as to Katinka’s injuries. He stated, “it’s my medical opinion that from my past experience and from seeing the way this woman presented herself, that this was a traumatic episode of intercourse.” He did not give an opinion on whether the intercourse was consensual or nonconsensual, but only as to the forcefulness of the sexual act. Additionally, the interview between Running Bird and Officer Mueller was videotape recorded, played for the jury and introduced (over objection) as an exhibit.

[¶ 14.] At the conclusion of the State’s case, Running Bird made a motion for judgment of acquittal for the kidnapping counts. The trial court denied this motion. Running Bird renewed the motion at the conclusion of his own case, which again was denied. The jury returned guilty verdicts for second degree rape and kidnapping. The trial court sentenced Running Bird to serve 75 years in prison on the kidnapping conviction and 25 years in prison on the rape conviction, with sentences to be consecutive.

[¶ 15.] Running Bird appeals on the following issues:

(1) Whether the trial court should have granted Running Bird’s motions for judgment of acquittal on the kidnapping charges.
(2) Whether the trial court should have given Running Bird’s proposed jury instructions.
(3) Whether the videotaped interview of Running Bird by Officer Mueller was erroneously admitted into evidence.
(4) Whether the trial court should have allowed Dr. Burnett’s testimony that Katinka’s injuries resulted from a “traumatic episode of intercourse.”
ANALYSIS AND DECISION
[¶ 16.] 1. Whether the trial court should have allowed Running Bird’s motions for judgment of acquittal on the kidnapping charges.

[¶ 17.] Running Bird was charged with kidnapping in violation of SDCL 22-19-1(2) and 22-19-1(3). Both counts alleged that Running Bird seized, confined, inveigled, decoyed, abducted, or carried away Katinka, and held or detained her. Count I charged that the kidnapping was done to facilitate the commission of any felony or flight thereafter (SDCL 22-19-1(2)), while Count II charged that the kidnapping was done to inflict injury on, or to terrorize Katinka (SDCL 22-19-l(3)).

[¶ 18.] At the conclusion of both the State’s case and Running Bird’s case, Running Bird made a motion for judgment of acquittal on the kidnapping counts. The trial court denied both motions.

[¶ 19.] Our standard of review is well established:

The standard of review for denial of a motion for judgment of acquittal is whether the “evidence was sufficient to sustain the convictions.” “When reviewing sufficiency of the evidence, this [C]ourt, considers the evidence in a light most favorable to the verdict.” “A guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” ‘We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence.”

State v. Verhoef, 2001 SD 58, ¶ 22, 627 N.W.2d 437, 442 (internal citations omitted).

[¶ 20.] Running Bird claims that the kidnapping charges are invalid because the only confinement of Katinka occurred during the rape. He argues Katinka willingly and voluntarily walked with him to the new campsite where the rape occurred. Running Bird further contends that, under the Curtis/Reiman test, the confinement was merely incidental to the rape.

[¶ 21.] The Curtis/Reiman test has its origin in State v. Reiman, 284 N.W.2d 860 (S.D.1979). In Reiman, two men abducted a woman from a parking lot and took her to a building. At the building they were joined by two other men. All four men raped the woman. This Court determined that two of the four co-defendants could not be charged with kidnapping since their acts of confinement were restricted to holding the victim down on a mattress to facilitate the rape. We stated that “[w]e find it unreasonable to sustain a conviction for kidnapping which is unsupported by evidence aside from acts incidental only to another crime.” Id. at 873. This Court explained that the two co-defendants’ movement of the victim was merely incidental to the rape and did not substantially increase the risk of harm that was present. Id. at 873-74.

[¶ 22.] The next ease discussing this subject was State v. Curtis, 298 N.W.2d 807 (S.D.1980). In Curtis, the defendant committed attempted murder during the course of a forced automobile ride. We found that the kidnapping was not incidental to the defendant’s attempted murder, and affirmed the conviction. We stated, “it is clear that appellant did kidnap this person. The victim was confined in her automobile ... for the apparent purpose of terrorizing or inflicting bodily injury on her.” Id. at 810.

[¶ 23.] The Curtis/Reiman test was subsequently explored in State v. St. Cloud, 465 N.W.2d 177 (S.D.1991). In St. Cloud, the defendant forced his victim at knifepoint to drive him to a rural location where he raped her. We stated that no reasonable jury correctly applying the Rei-man/Curtis test could have concluded that the defendant’s kidnapping of the rape victim was merely incidental to the rape. Id. at 182. In St. Cloud we explained that under Reiman a kidnapping can be charged when “1) the kidnapping is not an essential element of some other clearly identified crime and 2) the victim is exposed to an increased risk of harm because of the kidnapping.” Id. at 181. We acknowledged that where the kidnapping “consists of prolonged confinement or movement from one premises to another— even if only from a parked car to an abandoned house — then one and probably both prongs of the Reiman/Curtis test cannot be met and the kidnapping cannot be considered incidental to another crime.” Id. We also noted that a kidnapping may be incidental to another crime “when the kidnapping consists either of confinement of minimal duration or of minimal movement within the same premises.” Id.

[¶ 24.] Another interpretation of the Curtis/Reiman test was discussed in State v. Lykken, 484 N.W.2d 869 (S.D.1992). In Lykken, a woman was confined when the defendant locked her in the bedroom and repeatedly raped her at her home. We held that the confinement at her home was not merely incidental to the crime of rape. Id. at 876. We stated that the Curtis/Rei-man test

is not meant to allow a rapist a free kidnapping because he also commits a rape. It is meant to prevent the injustice which would occur if a defendant could be convicted of kidnapping where the only restraint utilized was that necessary to complete the act of rape. Such brief restraint does not normally increase the victim’s risk of harm over and above that already inherent act in the rape.

Id. at 876.

[¶ 25.] Although we acknowledge that Katinka voluntarily walked with Running Bird to the site of the rape, she was “inveigled” and “decoyed” into doing so. See SDCL 22-19-1. Katinka was a stranger in the United States. When she returned from the restroom, she found that Running Bird had taken all of her belongings. He told Katinka that he and Edna had moved her belongings to a new campsite. It was the middle of the night in a non-residential area. Katinka’s only choice was to remain in the dark with no possessions, or go with Running Bird. He used her possessions to lure her to the campsite by the creek. Running Bird might as well have held a gun to her head.

[¶ 26.] In St. Cloud we stated that “most movement of rape victims by their attackers is designed to seclude the victim from possible assistance and to prevent escape — which inevitably increases the risk of harm to the victim.” 465 N.W.2d at 181. Running Bird’s movement of Katinka was clearly designed to seclude Katinka from assistance and escape. He did not take her belongings down to the campsite by the creek to get better accommodations or a better night’s sleep or to protect her. He moved her possessions to get her away from everyone else so he could rape her. We therefore conclude that the kidnapping was not merely incidental to the rape. The kidnapping conviction is affirmed.

[¶ 27.] 2. Whether the trial court should have given Running Bird’s proposed jury instructions.

[¶ 28.] Running Bird proposed two jury instructions regarding kidnapping at the conclusion of the trial. The trial court refused his instructions. This Court has recently reaffirmed its standard of review concerning proposed jury instructions.

We review a trial court’s refusal of a proposed instruction under an abuse of discretion standard. “The trial court has broad discretion in instructing the jury.” Jury instructions are satisfactory when, considered as a whole, they properly state the applicable law and inform the jury. Error in declining to apply a proposed instruction is reversible only if it is prejudicial, and the defendant has the burden of proving any prejudice. Further, to reverse a conviction for failure to give a proposed instruction, the defendant must show that the jury would have returned a different verdict if the proposed instruction was given. Absent such a showing, the trial court will not be reversed.

State v. Webster, 2001 SD 141, ¶ 7, 637 N.W.2d 392, 394 (internal citations omitted).

[¶ 29.] Running Bird’s first proposed instruction provided:

The second element of the crime of kidnapping ... which is that the defendant did hold or detain Katinka Stegeman, requires an unlawful holding or detaining of Katinka Stegeman above and beyond the holding or detaining which woidd have been necessary to commit the crime of rape.
If such an additional holding or detaining did not occur in this case, or if you find that the only holding or detaining of Katinka Stegeman by the defendant during the time period and events in question was that necessary to commit the crime of rape you must find the defendant not guilty of kidnapping.

(emphasis added). Running Bird’s second proposed jury instruction provided:

If you find from all of the evidence that the only restraint of the alleged victim utilized by the defendant during the time period and events in question was such restraint as was necessary to complete the crime of rape, then the crimes of kidnapping ... were not committed by the defendant. If so, you must acquit the defendant of kidnapping.

(emphasis added). Running Bird’s proposed instructions are not accurate statements of the law. This Court has stated that neither movement nor prolonged confinement of a victim are essential elements to the crime of rape. Lykken, 484 N.W.2d at 876; see also SDCL 22-19-1(2)(3) (providing that any person who shall “inveigle” or “decoy” another person and detain such person in order to facilitate a rape or other felony or inflict bodily injury is guilty of kidnapping).

[¶ 30.] In Running Bird’s case, he took Katinka’s property and inveigled and decoyed her to a more secluded campsite in order to rape her. Since Running Bird’s proposed instructions did not properly state the law, the trial court correctly refused the instructions.

[¶ 31.] 3. Whether the videotaped interview of Running Bird by Officer Mueller was erroneously admitted into evidence.

[¶ 32.] At trial, the State offered the videotaped interview between Officer Mueller and Running Bird into evidence. Running Bird objected, asserting that many of Mueller’s questions and opinions on the videotape labeled Running Bird dishonest. The trial court admitted the videotape into evidence and cautioned the jury that the statements Officer Mueller made during the interview should not be considered as being true.

[¶ 33.] The trial court instructed the jury as follows:

I will advise the jury in the course of this you’ll be reviewing the video tape that has been testified to concerning the interview. Please bear in mind that nothing the officer says in the course of that interview is to be considered by you as a fact. The, only things you’re to consider in the course of the interview are what the defendant himself may have said in the course of that interview. The officer’s statements are not relevant to the facts of the case, only to set the stage for the response of the defendant.

[¶ 34.] The standard of review for the admission of exhibits and documents is abuse of discretion. State v. Larson, 1998 SD 80, ¶¶ 28, 30, 582 N.W.2d 15, 21-22; State v. Brown, 480 N.W.2d 761, 763 (S.D.1992).

[¶ 35.] Running Bird claims that Officer Mueller in essence gave his opinion as to Running Bird’s credibility via the videotape, something that Officer Mueller would not have been allowed to do through direct questioning. Officer Mueller did not testify. He was not asked any questions about Running Bird’s honesty, and his statements and questions on the video-tapé do not constitute direct testimony. The trial court gave clear, cautionary instructions to the jury, and therefore the trial court did not abuse its discretion in admitting the videotape into evidence.

[1136.] 4. Whether the trial court should have allowed Dr. Burnett’s testimony that Katinka’s injuries resulted from a “traumatic episode of intercourse.”

[¶ 37.] At trial Dr. Burnett testified that “it’s my medical opinion that from my past experience and from seeing the way this woman presented herself, that this was a traumatic episode of intercourse.” Running Bird claims that Dr. Burnett’s testimony that Katinka’s injuries were the result of a traumatic episode of intercourse is, “in so many words,” testimony that Katinka was raped.

[¶ 38.] A trial court’s decision to admit expert testimony is controlled by SDCL 19-15-2, which provides, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” This Court has stated that a doctor who does not give an opinion ’ as to a defendant’s guilt or innocence has not invaded the province of the jury. State v. Well, 2000 SD 156, ¶ 16, 620 N.W.2d 192, 195. We have also acknowledged that “[t]he trial court has broad discretion concerning the qualification of experts and the admission of expert testimony. The trial judge’s decision as to such matters will not be reversed on appeal absent a clear showing of abuse of that discretion.” State v. Logue, 372 N.W.2d 151, 156 (S.D.1985).

[¶ 39.] Dr. Burnett’s testimony did not amount to an opinion as to Running Bird’s guilt or innocence. On cross-examination, Dr. Burnett was asked if Katinka’s vaginal injuries could have occurred during a consensual act. Dr. Burnett responded, “yes, I think that — that could be the case.” Then, on redirect, the State asked the following:

Q: Why can’t you say that this was the result of nonconsensual sex?
A: I can’t.
Q: Why can’t you say that? Why not? A: When this occurred, there had to be more force used then I would expect in a normal, caring, consensual sexual act and — but I cannot say whether the woman consented originally or not. My opinion is that she didn’t because of all the bruises and it looked like she was traumatized. But if an uncaring male started to have intercourse with a consenting female and got to a point where he just thrust forward and had no care about what was going on in her ... he could cause those tears.

In its next question, the State asked, “you don’t know whether the act itself was consensual or nonconsensual because you weren’t there?” Dr. Burnett replied, “[r]ight.” First, the defendant’s cross-examination on whether Katinka’s injuries could have occurred from consensual sex invited the State’s follow-up question. Second, an opinion may be given on an ultimate issue. SDCL 19-15-4; State v. Guthrie, 2001 SD 61, ¶ 31, 627 N.W.2d 401, 415.

[¶ 40.] The testimony shows that Dr. Burnett did not give an opinion as to Running Bird’s guilt or innocence, only whether Katinka’s injuries indicated consent. The admission of this testimony, therefore, was not an abuse of discretion and did not invade the province of the jury.

[¶ 41.] Affirmed.

[¶ 42.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

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

      . The simple assault charge was not submitted to the jury.

      . SDCL 22-19-1(2), (3) provides:
      [a]ny person who shall seize, confine, inveigle, decoy, abduct or carry away any person and hold or detain such person ... for any of the following reasons:
      (2) To facilitate the commission of any felony or flight thereafter;
      (3) To inflict bodily injury on or to terrorize the victim or another ... is guilty of kidnapping.

      . Inveigle means "[l]o lure or entice or lead astray, by false representations or promises, or other deceitful means.” Black’s Law Dictionary 824 (6th ed 1990).

      . Some of Officer Mueller’s comments include:
      "Something pretty big happened last night and I think you’ve probably got a good idea ■ as to why we’re down here questioning you”; "We know it wasn't consensual as what you're saying”; "I think that you know deep down that this gal from Holland probably didn’t want to go as far as things went either”; and "Well, we both know that didn’t happen.”


author: PER CURIAM.

text:
    2002 SD 89
    Jennifer JOHNSON et al., Petitioners and Residents of Candlelight Acres, Appellees, v. LENNOX SCHOOL DISTRICT NO. 41-4, Appellant.
    No. 22194.
    Supreme Court of South Dakota.
    Considered on Briefs May 28, 2002.
    Decided July 24, 2002.

      Debra S. Sittig of Woods, Fuller, Shultz & Smith, Sioux Falls, for appellees.
    Rodney Freeman, Jr. of Churchill, Ma-nolis, Freeman, Kludt, Shelton & Burns, Huron, for appellant.
   PER CURIAM.

[¶ 1.] The Lennox School District appeals a circuit court judgment reversing its denial of a petition for a minor school district boundary change. We affirm.

FACTS

[¶ 2.] The Petitioners are residents of the Candlelight Acres residential development in southwest Sioux Falls, Lincoln County, South Dakota. Although the City of Sioux Falls has annexed Candlelight Acres so that it now lies within city limits, the area remains in the Lennox School District. The Lennox District was organized some thirty-two years ago, before the residential development in Candlelight Acres. It covers portions of Minnehaha, Lincoln and Turner counties and includes the communities of Lennox, Tea, Chancellor, Worthing and, currently, that part of southwest Sioux Falls encompassing Candlelight Acres.

[¶ 3.] At the time the boundary change petition was filed, approximately twenty-five school-aged children lived in Candlelight Acres. Of those twenty-five, approximately fifteen were attending school in the Sioux Falls School District through the open enrollment policy provided for by SDCL 13-28-40 et seq. The remainder of the children were attending school at private schools in Sioux Falls or in the Len-nox School District.

An enrollment options program is established to enable any South Dakota kindergarten through twelfth grade student to attend any public school that serves the student’s grade level in any South Dakota school district, subject to the provisions in §§ 13-28-40 to 13-280-47, inclusive.

[¶ 4.] The Petitioners filed their boundary change petition on August 14, 2000 to transfer Candlelight Acres from the Len-nox School District to the Sioux Falls School District. The petition was filed with both the Lennox and Sioux Falls School Districts and with the Lincoln and Minnehaha County Commissions. Several of the Petitioners appeared with their counsel and addressed the Lennox School Board at its regular meeting on August 14, but the Board continued the petition to its next regular meeting so that it could consult with its counsel.

[¶ 5.] On August 28, some of the Petitioners and their counsel appeared before the Sioux Falls School Board relative to the boundary change. The Sioux Falls Board voted to approve the change subject to the Petitioners’ compliance with all legal requirements and subject to the approval of the change by the Lennox School Board.

[¶ 6.] The Petitioners and their counsel next appeared before the Lennox School Board on September 11. In order to obtain some updated valuation figures for the property affected by the boundary change, the petition was again continued until a special meeting held on December 4. After presentation of the case for the Petitioners and the District’s response, the Board voted to deny the petition. The Board subsequently entered findings of fact and conclusions of law in accord with its decision and the Petitioners appealed to the circuit court. A hearing was held on June 27, 2001 and the court later entered findings of fact, conclusions of law and a judgment reversing the Board’s denial of the petition. The District now appeals to this Court.

ISSUE

[¶ 7.] Was the Board’s denial of the boundary change petition arbitrary, capricious or an abuse of discretion?

[¶ 8.] This Court’s standards of review in a school district boundary dispute are outlined in Smith v. Canton School Dist. No. 41-1, 1999 SD 111, ¶ 9, 599 N.W.2d 637, 639-40 (1999):

School boards enjoy broad discretion in [decision making] and need only make sure their decisions are not arbitrary, capricious or unreasonable. Kellogg v. Hoven Sch. Dist. No. 53-2, 479 N.W.2d 147, 149 (S.D.1991). A decision is arbitrary and capricious when it is “not governed by any fixed rules or standard.” Black’s Law Dictionary 104 (6th ed. 1990).

[¶ 9.] This Court reviews a school board decision on a boundary change petition unfettered by any presumption that the circuit court correctly decided the matter in its review. See Smith, 1999 SD 111 at ¶ 7, 599 N.W.2d at 639. Rather, this Court seeks to ascertain whether there is substantial evidence to support the board’s decision. See Colmam-Egan School Dist. No. 50-5 v. Jones, 520 N.W.2d 890, 892 (S.D.1994)(quoting Oldham-Ramona School Dist. v. Ust, 502 N.W.2d 574, 580-81 (S.D.1993)).

[¶ 10.] In Smith, supra, this Court determined a school board was arbitrary and capricious and abused its discretion in denying a boundary change petition where the record indicated the board rewrote or ignored the factors applicable to consideration of such petitions. A similar case exists here.

[¶ 11.] Under settled law, the following factors must be considered in reviewing a boundary change petition:

1. Whether the petitioners are more closely aligned to the economic, social and religious life of the community into which they are being transferred.
2. Whether there is bus service to the residence.
3. Whether the district line which places their property in the current district was drawn in an arbitrary fashion.
4. Whether petitioner’s child has special needs best met in the District petitioners are attempting to join.
5. Whether the petitioners live closer to the school district they are joining as opposed to the district they are leaving.

Smith, 1999 SD 111 at ¶ 9, 599 N.W.2d at 640 (citing Oelrichs School Dist. v. Sides, 1997 SD 55, ¶ 11, 562 N.W.2d 907, 911). Each of these factors along with the Board’s findings on the issue and the other applicable evidence will be reviewed in the order set forth above.

Alignment with the Community to Which Transfer is Being Sought

[¶ 12.] The Board found that the Candlelight Acres area has been part of the Lennox School District for thirty-two years and that the area was not annexed by Sioux Falls until 1997. In addition, the Board found that a significant number of Lennox School District patrons commute to Sioux Falls for work and outside activities and that patrons of Sioux Falls also travel to communities in the Lennox School District for such activities. In a finding of questionable relevance, the Board also set forth that “no suburban school district stands alone in this issue” and that the Lennox School District has boundaries reaching the Canton District, the West Central and Parker Districts, the Harrisburg Districts and the Sioux Falls District.

[¶ 13.] None of the Board’s findings adequately assess the factor of alignment with the community to which transfer is being sought. An important fact distinguishing this case from many boundary change cases is that the Petitioners actually live in the community to which they are seeking a transfer. Thus, contrary to the findings of the Board, these Petitioners are not mere commuters to Sioux Falls, but are actually Sioux Falls residents. Not only do they actually live in Sioux Falls, the record demonstrates that they are more closely related to Sioux Falls. They work, shop, conduct business, seek medical and dental care and utilize day care and babysitters in Sioux Falls. They attend church, socialize with friends and family and participate in entertainment and leisure time activities in Sioux Falls. Most of their children currently attend school in Sioux Falls at private schools or through open enrollment at the public schools. The record further shows that the Petitioners conduct little or no economic, social or religious activities in the other communities in the Lennox School District. All telephone calls in the Candlelight Acres area are local calls while calls to other communities in the Lennox District are long distance.

[¶ 14.] The record also reflects that the Lennox District has done little to make the Petitioners feel a part of that district. The Petitioners asserted before the Board that they were left out of various surveys concerning District issues. Sioux Falls is not listed as one of the communities in the Lennox School District in its materials or on District letterhead. A long term planning committee appointed by the Lennox School Board includes representatives from Lennox, Tea, Worthing and Chancellor, but none from Candlelight Acres.

[¶ 15.] Based upon the foregoing, the factor of alignment with the community to which transfer is being sought clearly supports the Petitioners in this case.

Bus Service

[¶ 16.] The Board’s only finding as to bus service provides that, “while Petitioners have expressed concern that transportation may not be provided by the Sioux Falls School District through Open Enrollment, the slight inconvenience to the parents of the children cannot outweigh the financial detriment to the district which would be caused by granting the Petition.” This reflects inadequate consideration of the factor of bus service.

[¶ 17.] The record shows that the Len-nox School District provides bus service to Candlelight Acres, but that children in the development who ride the bus are the first ones on in the morning and the last ones off at night. The only high school in the Lennox District is eighteen miles from the development while Sioux Falls Roosevelt High School is only four miles from the development. Other schools in the Lennox District are generally further away from Candlelight Acres than their counterparts in the Sioux Falls District. Thus, bus rides would usually be longer for students in Candlelight Acres attending school in the Lennox District. Moreover, bus routes in the Lennox School District run through rural areas. The Petitioners raised concerns over the length of bus rides and winter road conditions as support for their petition.

[¶ 18.] The Sioux Falls School District provides bus service for its own students only. Open enrollment students are responsible for their own transportation. If the Petitioners’ petition was granted, busing in the Sioux Falls District would be available to their children and the length of the bus rides would be considerably shorter than in the Lennox District. Moreover, the bus routes would run through residential areas.

[¶ 19.] As in the Lennox District, no bus service is available for extracurricular activities in Sioux Falls. However, city bus service and cab service are available in Sioux Falls and provide transportation options unavailable to the other communities in the Lennox District.

[¶ 20.] Based upon the foregoing, the factor of bus service clearly supports the Petitioners in this case.

Arbitrariness of School District Boundaries

[¶ 21.] The only finding entered by the Board concerning the arbitrariness of the school district boundaries is that the Lennox School District, with Candlelight Acres as a part, has been organized for thirty-two years. Based upon this finding and the evidence supporting it, the circuit court determined that the Lennox School District boundaries were not arbitrarily drawn.

[¶ 22.] While the circuit court’s determination is accurate in a historical context, it ignores the current reality that Sioux Falls has grown into the Lennox School District and has constructed schools that are generally closer to Candlelight Acres than those in the Lennox District. If school district boundaries should bear some reasonable proximity to the patrons the district is intended to serve, then a question arises as to whether time and development have rendered the boundaries between the Sioux Falls District and the Lennox District arbitrary and unreasonable. Clearly that is the indication where the majority of the students in the area in question attend schools in Sioux Falls rather than in the Lennox District. Thus, however reasonable the Lennox' School District boundaries might have been thirty-two years ago when they were drawn, it would seem to be of little import in evaluating the Petitioners’ current boundary change petition in light of present circumstances.

Special Needs of the Children

[¶ 23.] The Board’s findings fail to reflect any specific consideration of the special needs of the children. Yet, the record shows and the circuit court found that, at the time of the filing of the petition, one of the Petitioners had a preschool age child with special needs who could have obtained additional assistance in the Sioux Falls School District. Although the Lennox District ultimately provided for the child’s needs, it was not until after the filing of the petition. Thus, this factor also weighs in favor of granting the Petitioners’ petition.

Distance to the Sioux Falls School District

[¶ 24.] The Board’s only finding related to this factor indicates the Board has “explored the issue” of additional school sites and that its policy is to approve building “where the students are.” However, the finding fails to mention any current building plans.

[¶ 25.] The record reflects that the Lennox School District operates schools in Lennox, Chancellor, Worthing and Tea. Distances from Candlelight Acres to these locations are as follows: Lennox, eighteen miles; Chancellor, twenty-three miles; Worthing, thirteen miles; and, Tea, five miles. Distances from Candlelight Acres to the closest schools in the Sioux Falls District are as follows: John F. Kennedy Elementary School, two miles; Memorial Middle School, five miles; Roosevelt High School, four miles. Thus, as found by the circuit court, the Petitioners are located within the city limits of Sioux Falls and are closer to the schools in the Sioux Falls School District than to those in the Lennox District. This factor also favors the Petitioner’s petition.

Other Factors

[¶ 26.] While the Board’s findings and conclusions fail to reflect adequate consideration of the foregoing factors, they also show preoccupation with economic considerations and open enrollment policies. At least six of the Board’s key findings denying the Petitioners’ petition make direct or indirect references to the negative economic effects on the Len-nox District of granting the requested boundary change. Prior to this Court’s decision in Oldham-Ramona, supra, this Court consistently, “criticized a school board’s excessive reliance on economic factors as a basis for denial of a boundary change petition.” Oldham-Ramona, 502 N.W.2d at 582. In that regard, this Court repeatedly recognized that, “[s]chool districts do not have a vested right to retain their existing status or territory. As creatures of the legislature they are subject to periodic change, alteration, or abolishment.” Nelson v. Deuel County Bd. of Education, 80 S.D. 559, 563, 128 N.W.2d 554, 556 (1964) (citations omitted). Accord McLaughlin School Dist 15-2 v. Kosters, 441 N.W.2d 682, 685 (S.D.1989); Oldham-Ramona, 502 N.W.2d at 582. This Court did hold in Oldham-Ramona, that, “economic factors, in conjunction with the other relevant factors, are a valid consideration for a school board in ruling on a petition for a minor boundary change.” Oldham-Ramona, 502 N.W.2d at 582. However, the economic factors were not the only factors considered in Oldhamr-Ramona and the other relevant factors also weighed against the petitioners in that case. See Oldham-Ramona, 502 N.W.2d at 582. That is not the situation here where the record fails to reflect adequate consideration of all relevant factors and the evidence presented on those factors overwhelmingly supports the petition.

[¶ 27.] In addition, as observed by the circuit court, the economic effects of a minor school district boundary change are largely taken into account by the statutory limitations on such a change. SDCL 13-6-85 limits a “minor” boundary change to property affecting not more than two percent of the assessed valuation of a district. Here, the Board’s own findings concede that the assessed valuation of Candlelight Acres is only 1.97 percent of the total assessed valuation of the Lennox School District. Thus, however dire the Board’s findings as to the economic impact of the requested boundary change, it must be remembered that over ninety-eight percent of the assessed valuation of the District remains intact after the change. Moreover, as observed by the circuit court, this is in an area of growth in the State where populations are projected to continue increasing and property values will necessarily continue to rise. Thus, the Board was clearly over-reliant on economic factors as a basis for denying the boundary change.

[¶ 28.] The Board’s findings also reflect over-reliance on open enrollment in the Sioux Falls School District as a cure-all for all of the concerns raised by the Petitioners. As was also observed by the circuit court, if open enrollment were a panacea for all such concerns, the legislature would have repealed the boundary change statutes when it passed the open enrollment law. It did not do so. Therefore, the boundary change statutes must not be read in a manner that renders them useless or meaningless. See Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 15, 592 N.W.2d 596, 599 (there is a presumption against a construction which renders a statute ineffective or meaningless).

[¶ 29.] The Petitioners presented a persuasive case as to why open enrollment in the Sioux Falls School District would not resolve their concerns. In addition to the lack of bus service for open enrollment students, the Petitioners established that open enrollment would not guarantee assignment to the closest neighborhood school or to a particular school in successive years and would not guarantee that children from the same family would be assigned to the same school. As determined by the circuit court, these conditions defeat the very certainty the Petitioners were hoping to achieve with their boundary change petition.

[¶ 30.] Based upon the foregoing, it is clear that the Board’s decision relies on factors not intended to be considered, fails to consider important aspects of the problem, is counter to the evidence and is so implausible that it cannot be ascribed to a difference in view or to the product of Board expertise. This renders the decision arbitrary and capricious, warranting reversal. See Smith, 1999 SD 111, ¶ 9, n2, 599 N.W.2d at 640. Accordingly, the circuit court committed no err in reversing it.

[¶ 31.] Affirmed.

[¶ 32.] GILBERTSON, Chief Justice, and AMUNDSON, KONENKAMP and ZINTER, Justices, participating.

[¶ 33.] SABERS, Justice, disqualified.

      . 1. SDCL 13-28-40 provides in pertinent part:

      . 2. The conclusion was premised on authority holding that a decision is arbitrary and capricious when the decision-making agency: 1) relies on factors not intended to be considered; 2) fails to consider an important aspect of the problem; 3) offers an explanation for its decision that runs counter to the evidence before it; 4) renders a decision so implausible that it cannot be ascribed to a difference in view or the product of agency expertise. See Smith, 1999 SD 111 at ¶ 9, n. 2, 599 N.W.2d at 640 (citing Motor Vehicle Manufacturers Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983)).

      . 3. Several statutory conditions must also be met to obtain a minor school district boundary change. In that regard, SDCL 13-6-84.1 provides in pertinent part:
      (1) The boundary of the area proposed to be transferred shall be coterminous at some point with the common boundary of the two school districts....
      (2) Children must reside within the boundary of the area to be transferred, unless it is an area change initiated by a school board as provided in § 13-6-84.2.
      SDCL 13-6-85 provides in part:
      A boundary change, affecting not more than two percent of the assessed valuation and not more than two percent of the tax-exempt acreage or other tax-exempt property to be determined at the discretion of the school district from which the area is to be taken, may be made upon an application for a boundary change to the school board of the school district from which the area is to be taken and to the school board of the school district to which the area is to be annexed, in the form’of a petition signed by over fifty percent of the voters residing in the area to be transferred by the boundary change. Copies of the petitions shall also be delivered by the petitioners to the board of county commissioners having jurisdiction over the school districts affected.
      There is no dispute that these statutory conditions are met in this case. Candlelight Acres constitutes 1.97% of the assessed value of the entire Lennox School District. Candlelight Acres is coterminous with the Sioux Falls School District with borders running adjacent to 57th Street and Sun-downer Avenue. At the time of the petition, 25 school aged children resided in Candlelight Acres. The Lincoln County Auditor estimated that in August of 2000, fifty voters registered in Lincoln County lived in Candlelight Acres. Forty-seven voters registered in Lincoln County signed the petition. Other residents who had not yet registered to vote in Lincoln County also signed to show support for the petition.