author: AMUNDSON, Justice (Retired). ZINTER, Justice SABERS, Justice

text:
    2003 SD 5
    STATE of South Dakota, Plaintiff and Appellee, v. Jon JOLLEY, Defendant and Appellant.
    No. 22078.
    Supreme Court of South Dakota.
    Argued Oct. 7, 2002.
    Decided Jan. 8, 2003.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Michael Stonefield, Pennington County Public Defender’s Office, Rapid City, for defendant and appellant.
   AMUNDSON, Justice (Retired).

[¶ 1.] On May 30, 2001, Jon Jolley was convicted of second-degree felony murder and child abuse. Jolley was sentenced to life in prison without parole on the second-degree felony murder conviction and ten years in prison on the child abuse conviction. Jolley appeals. We affirm.

FACTS

[¶ 2.] On the morning of July 31, 2000, six-year-old Barrett Jolley (Barrett) collapsed in the living room of the home of Jon Jolley (Jolley), his father. An ambulance was summoned to the scene. Barrett’s body was lifeless when the paramedics arrived. The paramedics removed Barrett’s clothes and found his body covered with bruises. The child was immediately taken to the hospital. Despite resuscitation efforts, Barrett was pronounced dead at the hospital. Barrett’s death was attributed to blunt force trauma.

[¶ 3.] Thereafter, Jon Jolley and Karry Luthy (Luthy) were arrested and charged with second-degree murder, second-degree felony murder, and child abuse. Subsequently, Luthy entered into a plea agreement whereby she pled to two counts of child abuse, and received two concurrent ten-year prison sentences. Pursuant to this agreement the charges of second-degree murder and second-degree felony murder were dismissed.

[¶ 4.] After a jury trial, Jolley was found guilty of second-degree felony murder and child abuse. On these convictions Jolley was sentenced to life imprisonment for second-degree felony murder and ten years for child abuse. Jolley appeals the following issues:

1.) Whether the trial court erred in denying the admission of other acts evidence regarding state witness Karry Luthy.
2.) Whether the trial court erred in denying the introduction of the sentence faced by state witness Karry Luthy before she accepted a plea offer.
3.) Whether the trial court erred in allowing the admission of other acts evidence regarding Jolley.

STANDARD OF REVIEW

[¶ 5.] In reviewing a trial court’s decision to admit other acts evidence this Court will not overrule the trial court’s decision unless there is an abuse of discretion. State v. Anderson, 2000 SD 45, ¶ 93, 608 N.W.2d 644, 670; State v. Larson, 512 N.W.2d 732, 736 (S.D.1994); State v. McDonald, 500 N.W.2d 243, 245 (S.D.1993); State v. Werner, 482 N.W.2d 286, 288 (S.D.1992).

“Upon review ... we must be careful not to substitute our reasoning for that of the trial court.” Larson, 512 N.W.2d at 736. Thus, the question is not whether, had we been the trial judge, would we have admitted the prior bad acts evidence but whether the trial court sitting in this case abused its discretion by doing so. Id.; State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986).

Anderson, 2000 SD 45 at ¶ 93, 608 N.W.2d at 670.

This Court will only disturb decisions of the trial court regarding the admission of evidence if there is a clear abuse of discretion. State v. Devall, 489 N.W.2d 371, 374 (S.D.1992); State v. Olesen, 443 N.W.2d 8, 9 (S.D.1989); State v. Bawdon, 386 N.W.2d 484, 486 (S.D.1986); State v. Percy, 80 S.D. 1, 117 N.W.2d 99, 100 (1962). “ ‘An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Devall, 489 N.W.2d at 374 (quoting State v. Pfaff, 456 N.W.2d 558, 561 (S.D.1990)). Under the abuse of discretion standard, we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.

State v. Orelup, 520 N.W.2d 898, 900-901 (S.D.1994).

DECISION

[¶ 6.] 1.) Whether the trial court erred in denying the admission of other acts evidence regarding state witness Karry Luthy.

[¶ 7.] Jolley claims the trial court should have granted his Motion to Use Other Acts Evidence. Jolley contends testimony regarding Luthy’s past volatile relationships with men should have been allowed to show identity or in the alternative modus operandi.

[¶ 8.] SDCL 19-12-5 governs the admission of other acts evidence. The statute reads as follows:

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

To determine the admissibility of other acts evidence the court must first determine: (1) whether the intended purpose is relevant to some material issue in the case, and (2) whether the probative value of the evidence is substantially outweighed by its prejudicial effect. Anderson, 2000 SD 45 at ¶ 92, 608 N.W.2d at 669; State v. Moeller, 1996 SD 60, ¶ 13, 548 N.W.2d 465, 472 (citation omitted).

[¶ 9.] This Court has said,

[U]nder § 404(b) other acts evidence may not be admitted if its sole purpose is to establish an inference from bad character to criminal conduct. It is admissible when similar in nature and relevant to a material issue, and not substantially outweighed by its prejudicial impact. The degree of similarity required for other act evidence will depend on the purpose for which it is offered.

State v. Wright, 1999 SD 50, ¶ 16, 593 N.W.2d 792, 799-800.

[¶ 10.] Jolley maintains that the testimony is relevant to show identity or modus operandi. This Court has held that “mo-dus operandi evidence used to establish identity requires a high degree of similarity.” Wright, 1999 SD 50 at ¶ 18, 593 N.W.2d at 800.

[¶ 11.] At the motion hearing Rhonda Jolley testified that she had seen Luthy on several occasions hit her boyfriend, her first husband, and her second husband. She further testified that Luthy had a bad temper and that she thought Luthy could be abusive.

[¶ 12.] The trial court determined that the evidence of other acts was not similar enough in nature to show identity in the case before it. In addition, the trial court also noted that such evidence would be more prejudicial than probative. The trial court reasoned that the other acts testimony proposed by Jolley involved adults, not children, stating past failed romantic relationships and marriages between adults is not similar enough in nature to a charge of child abuse. The testimony was “more toward character than anything else.” The trial court applied the proper balancing test and found the proposed testimony was not relevant. The trial court did not abuse its discretion in finding that there was no integral link between Luthy’s turbulent romantic relationships and a small child being beaten to death.

[¶ 13.] 2.) Whether the trial court erred in denying the introduction of the sentence faced by state witness Karry Luthy before she accepted a plea offer.

[¶ 14.] Jolley argues that the trial court unduly limited his right to cross-examine Luthy and thus violated his Sixth Amendment right to confront a witness. “The Confrontation Clause does not guarantee effective cross-examination, but merely guarantees the opportunity to confront the witness.” State v. Perovich, 2001 SD 96, ¶ 15, 632 N.W.2d 12, 16. Therefore, the inquiry we must make is whether Jolley had an opportunity for effective cross-examination of Luthy.

[¶ 15.] The scope and extent of cross-examination is “largely within the sound discretion of the trial court.” State v. Grooms, 504 N.W.2d 111, 112 (S.D.1993) (citations omitted). Jolley’s hands were not completely tied on cross-examination. Although Jolley was prevented from questioning Luthy regarding the life sentence she faced before the plea bargain, Jolley, nonetheless, was able to cross-examine Lu-thy regarding her plea bargain.

[¶ 16.] On direct examination Luthy testified that she had been facing a charge of murder and child abuse and subsequently entered into a plea agreement. Luthy also indicated that she pled guilty to two counts of child abuse and was facing a maximum twenty-year sentence. Luthy also admitted on direct that she agreed to testify in return for the plea bargain she received. Although Jolley was not permitted to cross-exam Luthy about the life sentence she was initially facing, Jolley was able to question Luthy about her knowledge of the severity of the sentence she was facing on the murder charge. The record indicates Luthy agreed that the murder charge she faced before the plea bargain was substantially more serious than the charges of child abuse.

[¶ 17.] Despite not being able to question Luthy about the life sentence she was facing, the defense had plenty of ammunition to attack Luthy’s credibility. The defense was able to cross-examine Luthy about her plea agreement, that she had made inconsistent statements and flat out lied continuously throughout the investigation, that the murder charges against her had been dropped, and that she received a lesser sentence through her cooperation. During closing arguments the defense spent the majority of the time attacking Luthy’s credibility.

[¶ 18.] We cannot say that the trial court abused its discretion in limiting cross-examination. We affirm.

[¶ 19.] 3.) Whether the trial court erred in allowing the admission of other acts evidence regarding Jol-ley.

[¶ 20.] Jolley asserts that the trial court erred when it allowed the state to offer other bad acts, pertaining to an incident in which Jolley allegedly kicked his daughter. Jolley contends that the trial court did not use the same relevancy test used to keep out the other bad acts of Luthy. To the contrary the trial court allowed both Jolley and the state to present testimony regarding their respective motions.

[¶ 21.] The record indicates the trial court performed the same balancing test to both motions. The trial court made a determination that the testimony concerning the other bad acts of Jolley were relevant to a material issue in the case. The trial court further found that the testimony was more probative than prejudicial. The court reasoned that the act had sufficient similarities to the offense now charged and was probative on the issue of identity. Unlike the other bad acts Jolley proposed to use against Luthy, the acts here involve a child and were similar in nature to the charge of child abuse.

[¶ 22.] The trial court also found the act to be admissible for the purpose to show absence of mistake or accident. This Court has said that “the use of other crimes and wrongs to show ‘absence of mistake or accident is well established, particularly in child abuse cases.’ ” Wright, 1999 SD 50 at ¶ 23, 593 N.W.2d at 802. Initially, during the investigation both Jolley and Luthy said that the bruises on Barrett were from accidents. Both Jolley and Luthy claimed that Barrett had been throwing himself against things and that he had fallen out of the bathtub.

[¶ 23.] Although Jolley contends the court has made inconsistent rulings the record shows the trial judge applied the same balancing test and did not abuse his discretion in allowing the other bad acts evidence. We affirm.

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

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

[¶ 26.] SABERS, Justice, dissents.

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

ZINTER, Justice

(concurring specially).

[¶ 28.] I concur, and write on Issue 2 only to opine that the trial court allowed effective cross-examination of Luthy under the particular facts and circumstances of this case. Although the trial court prohibited reference to the precise sentence Lu-thy could have received under a murder charge, effective inquiry was permitted into all other aspects of the plea agreement including the sentence reduction and the adverse credibility inferences to be drawn from that reduction. More specifically, Jolley was permitted to cross-examine Luthy on her reduction of charges (from murder to child abuse relating to Barrett and A.J.). In that examination, Jolley exacted Luthy’s concession that because of the plea agreement, Luthy was now only facing a twenty-year potential sentence rather than “a lot more than that.” Under further cross-examination, Luthy even admitted that the sentence she previously “fac[ed] on the murder charge was substantially more serious than what [she was] now facing,” and that she “understood” the severity of that previous, potential sentence. Luthy finally admitted that she had agreed to testify in return for this reduction in charges and reduced potential sentence under the plea agreement.

[¶ 29.] Thus, the actual cross-examination permitted the jury to know the grounds upon which any bias, prejudice or lack of credibility could be inferred. Although the circuit court imposed a limited restriction to prevent disclosure of the specific sentence for murder (because it would also disclose the sentence Jolley faced if convicted), Jolley concedes in his brief “that he was allowed extensive cross-examination of Luthy.” Thus, even with the limitation on disclosure of the precise sentence for murder, the jury was not prevented from considering the negative inferences to be drawn from Luthy’s plea agreement. On the contrary, Jolley’s cross-examination permitted him to argue to the jury that Luthy was biased and not credible because, as Jolley’s counsel put it, “she gained one of the most significant things that a person on the face of the earth could gain- — [t]hey dismissed the murder charge against her.”

[¶ 30.] Therefore, the trial court’s balancing process correctly excluded the impermissible disclosure of Jolley’s potential sentence, while it permitted effective testing through cross-examination of the credibility and believability of Luthy’s testimony. This is the Confrontation Clause’s concern. Considering the actual cross-examination that was permitted, Jolley’s assertion — that the additional disclosure of the precise sentence for murder would have damaged Luthy’s credibility to the point where the jury’s verdict may have changed-is untenable. Because the negative credibility inferences arising from the sentence reduction were clearly disclosed, a reasonable jury would probably not have come to a significantly different impression if the precise sentence had been disclosed. Jolley therefore failed to meet his burden of establishing a Confrontation Clause deprivation. State v. Walton, 1999 SD 80, ¶ 25, 600 N.W.2d 524, 530.

SABERS, Justice

(dissenting).

[¶ 31.] I dissent because the trial court abused its discretion by not admitting pri- or acts evidence offered by Jolley and by not allowing the Defendant to question Luthy regarding the details of the sentence she faced prior to her plea agreement. These things taken together amount to cumulative error and the conviction should be reversed to allow Defendant a fair trial.

[¶ 32.] The majority opinion states in the footnote on page 308 that this Court has “declined to adopt [a] more liberal standard” with regard to prior bad acts evidence offered by criminal defendants. This is a misstatement of our opinion in White, where we stated, “[s]ince White does not meet even the test of simple relevance, there is no need at this time to decide whether to adopt this rule.” State v. White, 1996 SD 67, ¶ 16, 549 N.W.2d 676, 681. White left the door open to the possibility that this Court would consider whether to adopt a more liberal standard, and we should do so in this case.

[¶ 33.] When an individual criminal defendant is pitted against the State with all of its resources, he is at a distinct disadvantage. Thus, our rules of criminal procedure and evidence were enacted and intended to level the playing field so that he may have a fair trial. Our cases have rendered SDCL 19-12-5 powerless as a shield to protect defendants from prejudicial testimony. Now, despite the fact that this statute has become a powerful sword for the State, the Court denies defendants the same latitude in offering prior acts evidence. This does nothing to level the playing field; on the contrary, it tilts the field in favor of the State. Must the State always have the wind at its back and in the face of the defendant?

• [¶ 34.] The purpose of SDCL 19-12-5 is to prevent the jury from inferring from prior acts that the defendant committed the crime charged. The prejudice created by allowing introduction of prior bad acts to show propensity on the part of the defendant to commit the crime charged is so great it denies the defendant a fair trial. This purpose is not served by denying the criminal defendant the ability to introduce evidence of other acts by the State’s witnesses.

[¶ 35.] The theory of the defense was that it was Luthy, rather than Defendant, who committed the abuse leading to the child’s death. To that end, in the interest of providing him with a fair trial, the trial court should have allowed Jolley to present all evidence relevant to that theory. At trial, the State characterized Defendant as a “muscle builder” and “the person who had the strength to do this.” The testimony offered by Defendant was relevant and probative to the State’s position that Lu-thy was incapable of committing the acts against the child. Therefore, it was relevant and probative that Jolley was not the only party capable of the severe and fatal abuse.

[¶ 36.] “Relevance” is defined as evidence having any tendency to make the existence of a fact more or less likely. SDCL 19-12-1. This Court has been very clear that it construes the question of relevancy very liberally. For example, we recently stated,

[t]he law favors admitting relevant evidence no matter how slight its probative value ... ‘It is sufficient that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable than it would be without the evidence.’

State v. Bunger, 2001 SD 116, ¶ 11, 633 N.W.2d 606, 609 (quoting Larson, § 401.1 p. 109) (emphasis in the original). Based on our precedent, the evidence offered by Jolley meets the threshold requirement of relevance. We should adopt the rule of other courts which permits admission of such relevant evidence by the defense because denying the use of the evidence on the grounds of “prejudice” defies common sense.

[¶ 37.] In State v. Fulston, the New Jersey appellate court was faced with a similar factual scenario. A small child was beaten to death. There were only two adults with access to the child at the time he was fatally abused, and the defendant claimed that the State’s primary witness was the one who committed the crime. The court noted that the purpose of excluding prior acts that show propensity was “grounded in [the evidence’s] distinct capacity to prejudice the accused.” 325 N.J.Super. 184, 738 A.2d 380, 383 (A.D.1999). The court concluded:

when the defendant offers proof of that kind exculpatorily, prejudice to the defendant is no longer a factor. More specifically, there is no danger that the jury will convict the defendant of the crime being tried merely because of his sordid, criminal past.

Id. Thus, if the evidence offered by the defendant is relevant as to guilt or innocence of the conduct charged, it should be admitted. Id.

[¶ 38.] Adopting this test will promote the purpose of SDCL 19-12-5 and provide the Defendant his constitutional rights to confront witnesses and receive a fair trial. Additionally, this rule makes sense. The important question in this case is who would be prejudiced by introduction of this evidence? Luthy could not be convicted of the crime based on this testimony, so there is no prejudice to her. The only detrimental effect against the State would be that the testimony may raise a reasonable doubt in the minds of the jurors. This, of course, is not unfair prejudice, but properly puts the State to its burden of proving every element beyond a reasonable doubt.

[¶ 39.] The trial court also abused its discretion in denying Jolley the opportunity to cross examine Luthy regarding the sentence she faced prior to her plea agreement. Jolley’s Sixth Amendment right to confront the witnesses against him was violated when he was prevented from fully exploring Luthy’s credibility and bias. The primary means by which a defendant can test the credibility and bias of a witness is through cross examination. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974). The Supreme Court has stated that a defendant raises a confrontation clause violation by showing,

that he was prohibited from engaging in otherwise appropriate cross examination designed to show a prototypical form of bias on the part of the witness, and thereby “to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.”

Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684 (1986) (quoting Davis, 415 U.S. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 355).

[¶ 40.] Prior to her plea agreement, Luthy was facing a murder charge and a substantially greater sentence than the one she faces under her plea agreement. The central issue in any plea agreement is the sentence. Denying Jolley the opportunity to inquire fully into this issue denied him the ability to address the most important aspect of the plea agreement. Jolley was unable to develop the depth of bias this witness carried with her to the stand, and the result is that his right to confront this witness was violated.

[¶ 41.] The cumulative effect of errors by the trial court may support a finding of denial of the constitutional right to a fair trial. State v. Davi, 504 N.W.2d 844, 857 (S.D.1993); McDowell v. Solem, 447 N.W.2d 646, 651 (S.D.1989). This trial was a credibility contest between Luthy and Jolley; the only two people who could have committed this heinous crime. While allowing the State to introduce prior acts testimony (from Luthy’s mother) against the Defendant, the trial court denied the Defendant evidence of Luthy’s prior acts. The trial court compounded this prejudice by preventing Jolley from effectively cross examining Luthy about her bias. These decisions, taken together, constitute cumulative error and we should reverse and remand for a fair trial.

      . The uncontested evidence depicts a nightmarish experience during the deceased minor's last four to five days at the family residence. Evidence shows he was physically and mentally abused. The minor was disciplined severely for simply wanting to live with his grandmother. An obvious request from a child being beaten daily. A review of the record certainly reveals that pet owners treat animals better than the young boy was treated by his father and step-mother. It goes without saying that pet owners give their pets more love and attention than this young boy received over those last days.

      . There is authority supporting the argument that a lower standard should be utilized when evaluating the admissibility of other acts evidence when offered by the defendant. See United States v. Stevens, 935 F.2d 1380, 1404-1405 (3rdCir.1990)(a lower standard of similarity should govern "reverse 404(b)” evidence because prejudice to a defendant is not a factor); United States v. Cohen, 888 F.2d 770, 776 (11thCir.1989)(the standard for admission is relaxed when the evidence is offered by the defendant); United States v. Aboumoussallem, 726 F.2d 906, 911-912 (2dCir.1984)(risks of prejudice are normally absent when the evidence is offered by the defendant); People v. Bueno, 626 P.2d 1167, 1169 (Colo.Ct.App.1981)(when a defendant offers such evidence for defensive purposes, the concerns which gave rise to the rule are no longer applicable); State v. Garfole, 76 N.J. 445, 388 A.2d 587, 591 (N.J.1978)(other acts evidence used defensively requires a lower standard of degree of similarity).
      We declined to adopt this more liberal standard in favor of the defendant. In State v. White, this Court addressed this issue and ultimately declined to adopted a more liberal standard. 1996 SD 67, 549 N.W.2d 676. We adhere to the holding in White. Even if we were to adopt a more liberal standard, a showing of similarity must still be made by the defendant. In each of the cases supporting a lower standard for other acts evidence offered by the defendant, a degree of similarity must still be shown.
      The New Jersey Court in Garfole, was one of the first to adopt a more liberal standard in favor of the defendant. The court in Garfole, relaxed the standard of admissibility for other acts when offered by the defendant. The court held that a “a lower standard of degree of similarity of offenses may justly be required of the defendant using other-crimes evidence defensively than is exacted from the State when such evidence is used incriminatorily.” 388 A.2d at 591.
      The court in Stevens, examined Garfole, and ultimately held that although the crime need not be a "signature crime” it nevertheless must be sufficiently similar to the crime at hand. 935 F.2d at 1384. It is clear from the case law that a similarity between the crimes must be present. Each of the cases supporting a more liberal standard for other acts evidence when offered by the defendant found similarities between the crime being charged and the other act offered.
      In Stevens, the court compared the charged crime with the other act offered. The court ultimately found enough similarities to admit the other act. The court found both crimes involved a gun, a wallet being stolen, the assailant searching the victims for money, both happen in the same area, around the same time frame, and in both crimes military IDs were taken and used to cash stolen checks in the same area. Although the court was applying a more liberal standard it is clear that similarities between the two must still be shown. Id. at 1401.
      The trial court found that the defendant failed to show similarity between the other acts offered and the charge at hand. The defendant has failed to show any similarity that would, under either standard, require a reversal.

      . A review of State v. Fulston, supports the trial Court’s evidentiary ruling in this case. 325 N.J.Super. 184, 738 A.2d 380 (A.D.1991). In Fulston, the defendant testified to his version of what transpired between himself and the victim’s mother. Id. at 382. In this case the defendant did not testify so there is no conflicting version. In Fulston, the other acts admitted involved past physical abuse of the victim by the state’s witness. Id. at 384. In this case there is no evidence of past physical abuse by Luthy of the victim. Further, the defendant was able to cross-examine the witness regarding her plea to child abuse. Additionally, the court in Fulston held as follows:
      it is not enough to prove some hostile event and leave its connection with the case to mere conjecture. "Somewhere in the total circumstances there must be some thread capable of inducing reasonable [persons] to regard the event as bearing upon the State’s case.” Ibid.

        ... The fact that witnesses observed Da-maris abusing the child near the time of the homicide had a legitimate tendency to support the inference that she, and not defendant, killed the victim. This evidence was particularly poignant in light of Damaris’s confession to one of the proffered witnesses that she wished Michai has never been born....
      738 A.2d 380, 384 (A.D.1999). There was no thread of similarity shown regarding the other acts evidence offered in this case or actual observations of Luthy physically abusing the victim as was the case in Fulston. Therefore, the trial court properly exercised its discretion in denying the admission of the offered other acts evidence.

      . As the Court notes today, there is language in our opinions stating that “[t]he Confrontation Clause does not guarantee effective cross-examination, but guarantees the opportunity to confront the witness.” See, ¶ 12, supra (citing State v. Perovich, 2001 SD 96, ¶¶ 14-15, 632 N.W.2d 12, 16). This Perovich citation is based upon State v. Karlen, 1999 SD 12, 589 N.W.2d 594. Karlen, does however, permit "effective” cross-examination. Karlen more precisely states "the Confrontation Clause only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defendants might wish.” (citing Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 SCt 989, 999, 94 L.Ed.2d 40, 54 (1987)). Under this standard, even if the cross-examination was not effective "in whatever way, and to whatever extent [Jolley] might wish,” it was, nevertheless effective to disclose the possible sources for impeachment of Luthy.


source: Caselaw Access Project

author: ZINTER, Justice. SABERS, Justice

license: Public Domain

text:
    2003 SD 1
    Randy CLOSS, Plaintiff and Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Defendant and Appellee.
    No. 22235.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Jan. 8, 2003.

      Darren Magee, Office of the Minnehaha County, Public Defender, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.
    Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Randy Closs was released from a criminal sentence he was serving in the state penitentiary. He was released pursuant to a writ of habeas corpus issued by a federal district court. Upon his release, the Minnehaha County Board of Mental Illness determined that Closs was mentally ill, and that Board committed Closs to the Human Services Center (HSC). Fourteen months later, the federal district court’s writ was reversed by the Eighth Circuit Court of Appeals. After the reversal, Closs was discharged from the HSC, and he returned to the state penitentiary to complete his original criminal sentence. In calculating the remaining time to serve on that sentence, the Board of Pardons and Paroles' (Board) denied Closs credit for the fourteen months he was committed •at the HSC. Closs appeals the denial of that credit. We affirm.

FACTS

[¶ 2.] In 1984 Closs was convicted of second-degree burglary, third-degree burglary and grand theft. We affirmed the convictions in State v. Closs, 366 N.W.2d 138 (S.D.1985).

[¶ 3.] In 1997 Closs was paroled. Because of a long history of mental illness, his parole was contingent on “beginning and maintaining psychological and psychiatric treatment at a facility or with a psychologist approved by the board.” Closs initially complied with this condition by voluntarily entering a Board approved mental health facility for psychiatric treatment. However, once at the facility, he refused to take his prescribed medication.

[¶ 4.] Consequently, Closs’s parole agent filed a parole violation report, and the Board held a hearing on the alleged parole violation. At the hearing, Closs admitted that he did not take his medication while in treatment, but he asserted that the conditions of his parole did not require him to do so. The Board rejected Closs’s argument and revoked his parole. As a result of the parole revocation, the Board also reduced Closs’s “good-time” credit by two years. See SDCL §§ 24-15-24 and 24-5-1.

[¶ 5.] Closs did not appeal this Board decision. Instead, Closs filed a writ of habeas corpus in state court. In the state habeas proceeding, Closs attacked the validity of his parole revocation. The state habeas court denied the writ, and this Court summarily affirmed. Closs v. Weber, 596 N.W.2d 734 (S.D.1999).

[¶ 6.] Closs then attacked the validity of his parole violation in federal district court. That court concluded that the parole revocation was invalid, and it issued a writ of habeas corpus. Closs v. Weber, 87 F.Supp.2d 921 (D.S.D.1999). This action also reinstated Closs’s two years of good-time credit. When the two years of good-time credit were reinstated by the federal court, Closs had completed his prison sentence and he was free to leave the penitentiary.

[¶ 7.] However, before Closs left the penitentiary, the State initiated two proceedings to stop Closs’s impending release. In the first proceeding, the state appealed the federal district court’s decision to the Eighth Circuit Court of Appeals. As a part of that appeal, the State moved the federal district court to hold Closs in prison pending a decision by the Court of Appeals. The federal district court denied that motion, and it ordered that Closs be released from the penitentiary.

[¶ 8.] The second proceeding, which generated this appeal, involved a civil mental illness commitment under SDCL ch 27A-10. That proceeding was initiated by Dale Lint, the Director of Mental Health Services for the penitentiary. Lint filed a petition with the Minnehaha County Board of Mental Illness alleging that Closs was mentally ill and was a danger to those around him. Lint requested an emergency commitment to the HSC under SDCL 27A 10-1.

[¶ 9.] Lint’s petition was based on Closs’s long history of mental illness, including an early diagnosis of schizophrenia, and later, dangerous conduct in the penitentiary. The latter conduct included physical and verbal assaults, as well as throwing bodily substances on staff and fellow inmates. Based on Lint’s working relationship with Closs, Lint believed that Closs was a substantial danger to the community because Closs would again refuse to take his medication.

[¶ 10.] The petition for emergency-mental commitment was considered by the Minnehaha County Board of Mental Illness. That body found that Closs was a danger to himself and others, and it issued an emergency warrant for Closs’s commitment. Consequently, upon his release from prison on January 10, 2000, Closs was committed to the HSC. After arriving at the HSC, the Yankton County Board of Mental Illness conducted a regular mental illness hearing. That body involuntarily committed Closs for treatment. See SDCL ch 27A-10.

[¶ 11.] Closs spent approximately fourteen months at the HSC pursuant to this mental illness commitment. At the same time, the state’s appeal on the federal writ proceeded in the Eighth Circuit Court of Appeals. On January 30, 2001, the Eighth Circuit reversed the federal district court in all respects. Closs v. Weber, 238 F.3d 1018 (8th Cir.2001). Closs was subsequently discharged from the HSC, and he returned to the penitentiary on March 9, 2001 to complete his criminal sentence.

[¶ 12.] After Closs’s return to the penitentiary, the Board held a hearing to consider reinstatement of the 1997 parole violation. As a part of that proceeding, the Board also considered whether Closs was entitled to receive credit on his criminal sentence for the fourteen months he spent at the HSC during his mental commitment. The Board ultimately reinstated the parole violation but denied Closs’s request for credit for the fourteen months he spent at the HSC. The Board denied credit for Closs’s time at HSC because the Board concluded that the time was not “in furtherance of Closs’s criminal sentence.” The circuit court affirmed, and Closs now appeals the denial of credit.

STANDARD OF REVIEW

[¶ 13.] Closs’s entitlement to credit for his mental commitment is a question of law. We review questions of law under the de novo standard. Burke v. Butte County, 2002 SD 17, ¶ 8, 640 N.W.2d 473, 477.

ISSUE

[¶ 14.] Whether Closs was entitled to credit on his criminal sentence for the time he spent at the HSC pursuant to a mental illness commitment that followed his release from the penitentiary.

DECISION

[¶ 15.] Closs argues that the Board’s failure to credit his prison sentence for the time spent at the HSC “was in violation of state constitutional provisions and affected by other error of law.” However, Closs has cited no authority to support his argument. The State has also not directed us to any authority addressing this rather unusual situation involving credit on a criminal sentence for post-release commitment due to mental illness.

[¶ 16.] We believe the applicable law is, however, set forth in our closely related decisions on the right to credit for presen-tence confinement while undergoing psychiatric evaluations. In State v. Sorenson, 2000 SD 127, 617 N.W.2d 146, we considered whether a defendant was entitled to credit for presentence confinement at the HSC for the purpose of determining his mental competency. Id. 2000 SD 127, ¶ 12, 617 N.W.2d at 149. We reviewed the cases considering credit for presentence confinement and observed that generally “[t]here is no statutory right in this state to credit for time served while awaiting trial or sentencing and, in the absence of a statute to the contrary, the traditional rule is to deny such credit.” Sorenson, 2000 SD 127 ¶ 14, 617 N.W.2d at 149 (citations omitted). Significant to this appeal, we noted that the reason credit was not required was because “the confinement simply [did] not relate in any way to the subsequent punishment imposed.” Id.

[¶ 17.] That relationship test is applicable here. Under the test, the question is whether Closs’s commitment at the HSC was related to his punishment on his criminal sentence.

[¶ 18.] A number of considerations reveal that Closs’s mental commitment was unrelated to his punishment on his criminal sentence. First, the Legislature has established that mental health commitments are separate civil proceedings governed by a different section of the code than criminal proceedings. Compare, SDCL ch 27A-10 with SDCL Title 28A. Second, the proceedings themselves are fundamentally different. Mental health commitments require clear and convincing evidence of mental illness while criminal convictions require criminal conduct proven beyond a reasonable doubt. Compare SDCL §§ 27A-10-9.1 and 23A-22-3. Third, the tribunals hearing these cases are different: civil boards of mental illness determine mental commitments while juries decide criminal cases. Finally, the purpose and effect of the proceedings are different. Mental health commitments are intended to treat mental illnesses. On the other hand, criminal proceedings are intended to punish and deter others. Kansas v. Hendricks, 521 U.S. 346, 361-362, 117 S.Ct. 2072, 2082, 138 L.Ed.2d 501, 515 (1997).

[¶ 19.] This lack of relationship between civil commitments and criminal punishment has been confirmed by the Untied States Supreme Court. In Hendricks, the defendant had finished a criminal sentence for “taking indecent liberties with [children];” however, upon his release he was civilly committed for a “mental abnormality” or “personality disorder” that made it likely that he would again engage in “predatory acts of sexual violence.” Hendricks, 521 U.S. at 352, 355-356, 117 S.Ct. at 2077, 2078, 2079, 138 L.Ed.2d at 509, 510, 511. In considering double jeopardy and ex post facto claims, the Supreme Court rejected the argument that the mental commitment was criminal punishment. The Supreme Court rejected that argument because it found that there was no relationship between this type of mental illness commitment and a criminal punishment. Hendricks, 521 U.S. at 361-363, 117 S.Ct. at 2081-2083, 138 L.Ed.2d at 514-516.

[¶ 20.] In justifying that conclusion, the United States Supreme Court noted that the legislature intended that mental committals were unrelated to criminal punishments. Id. 521 U.S. at 361, 117 S.Ct. at 2081-2082, 138 L.Ed.2d at 514-515. The Supreme Court also held that this legislative intent could be rejected only where the challenging party provides the clearest proof that the statutory scheme for commitment is so “punitive either in purpose or effect” as to negate the State’s intention to deem it civil. Id. (citing United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749 (1980)).

[¶ 21.] The Supreme Court then identified two specific purposes and effects that distinguish mental commitments from criminal punishments. The Court noted that the primary objectives of criminal punishment are deterrence and retribution. Id. 521 U.S. at 361-362, 117 S.Ct. at 2082, 138 L.Ed.2d at 515. The Court found neither present in that mental commitment.

[¶ 22.] The Court found no deterrence because mental commitments do not require a criminal conviction as a prerequisite for commitment. A mental commitment can apply to those who are absolved of criminal liability as well as those who are convicted. Id. The Supreme Court also noted that mental commitments, by definition, only apply to those who cannot control their actions due to a mental illness. Under those circumstances, a mental commitment would not deter a person who was mentally ill. Id.

[¶ 23.] The Supreme Court also found no retribution in mental commitments. The Court noted that individuals involuntarily committed for mental illness are not subjected to greater restrictions than any other patients hospitalized for mental illness. Id. 521 U.S. at 363, 117 S.Ct. at 2082, 138 L.Ed.2d at 515-516. Consequently, the Supreme Court concluded that Hen-drick’s post-release mental commitment was not a criminal punishment.

[¶ 24.] This Hendricks “purpose and effect” analysis demonstrates that Closs’s mental commitment was not related to his criminal punishment. First, the purpose of Closs’s commitment was not for punishment for his burglary and theft. Instead, the purpose of Closs’s commitment was to provide mental treatment and to prevent Closs from harming others. Second, like the defendant in Hendricks, Closs’s detention was not imposed for deterrence or retribution. Instead, he was hospitalized for mental illness at a mental health facility under the same restrictions upon his freedom as similar patients involuntarily committed for mental health treatment.

[¶ 25.] Closs, however, suggests that his commitment was effectively related to his criminal punishment. Closs first argues that the Department of Corrections “supervised” his hospitalization because Lint, an employee of the Department of Corrections, filled out the petition. Closs also argues that the purpose of his hospitalization was not for treatment. He argues that he was simply “warehoused” at the HSC pending the State’s appeal. Closs finally claims that the statutory procedures for a prisoner’s transfer between the Department of Corrections and the HSC were not followed.

[¶ 26.] None of these arguments demonstrate that Closs’s mental commitment was effectively criminal punishment. First, even though a Department of Corrections employee signed the petition for commitment, the Minnehaha and Yankton County Boards of Mental Illness actually committed Closs to the HSC for treatment. Moreover, while at the HSC, Closs remained under their commitment orders. Therefore, it is irrelevant that the person who initiated the commitment proceedings was an employee of the Department of Corrections. SDCL 27A-10-1 permits anyone with knowledge to file the petition to initiate a mental health commitment. Here, Lint was simply a person with significant first hand knowledge of Closs’s mental illness. The county boards of mental illness were the entities that actually exercised the commitment authority.

[¶ 27.] Closs’s second contention, that he was simply “warehoused” at the HSC, is also misplaced. Closs had a well-documented history of mental illness dating back nearly twenty years. In the six years prior to his release from the peniten-tiaiy, Closs had been refusing his psychotropic medication and had become more violent. The evidence suggested that without hospitalization, Closs would no longer take his medication. Consequently, even if the Department of Corrections had an ulterior motive to curtail Closs’s freedom, Closs’s commitment was legally caused by his need for hospitalization and treatment for mental illness. This conclusion is confirmed by the fact that Closs’s need for treatment was determined in the mental illness board proceedings that adjudicated Closs’s commitment, mental illness, and continued need for treatment. It is also confirmed by the fact that Closs admits in his brief that he received treatment while at HSC.

[¶ 28.] Closs’s final argument is that statutory procedures necessary to transfer a prisoner from the HSC to the penitentiary were not followed. Closs relies on SDCL 24-15-9 which provides:

The Board of Pardons and Paroles may order the Department of Corrections to transfer any inmate to the Human Services Center. The director of the human services center [sic] shall notify the Department of Corrections when the inmate is ready to be transferred back to the state penitentiary. Upon receipt of the notice, the Department of Corrections shall within five days bring the inmate back to the state penitentiary.

[¶ 29.] This statute, however, only applies to “inmates” under the jurisdiction of the Department of Corrections. Closs was not returned to the penitentiary under this statute because Closs was not in the HSC as an “inmate” subject to the jurisdiction of the Department of Corrections. On the contrary, Closs was committed to the HSC under the mental illness statutes. Therefore, the HSC had no authority to release Closs under SDCL 24-15-9.

[¶ 30.] Moreover, the fact that Closs was not returned to prison under SDCL 24-15-9 disproves Closs’s own claim. Because the federal district court had initially released Closs from Department of Corrections jurisdiction, he was not transferred to the HSC under SDCL 24-15-9. Rather, Closs was committed to the HSC under the mental illness statutes. Therefore, the failure to use the transfer procedure in SDCL 24-15-9, which only applies to Department of Corrections inmates, tends to establish that Closs was not effectively detained by the Department of Corrections under a criminal sentence during his time at the HSC.

[¶ 31.] In conclusion, it should be emphasized that even though civil commitments for mental illness necessarily involve involuntary detention, traditional mental illness commitments-such as the one involving Closs-have never constituted criminal punishment. As the United States’ Supreme Court noted:

The State may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate, nonpunitive governmental objective and has been historically so regarded. The Court has, in fact, cited the confinement of “mentally unstable individuals who present a danger to the public” as one classic example of nonpunitive detention. If detention for the purpose of protecting the community from harm necessarily constituted punishment, then all involuntary civil commitments would have to be considered punishment. But we have never so held.

Hendricks, 521 U.S. at 363, 117 S.Ct. at 2083, 138 L.Ed.2d at 516 (internal citations omitted) (emphasis in original).

[¶ 32.] For all of the foregoing reasons, we conclude that Closs’s fourteen-month commitment to the HSC was not related to his criminal punishment. Because his mental commitment was unrelated to his criminal punishment, Closs was not entitled to credit for the time spent at the HSC.

[¶ 33.] Affirmed.

[¶ 34.] GILBERTSON, Chief Justice, KONENKAMP, Justice, and AMUNDSON, Retired Justice, concur.

[¶ 35,] SABERS, Justice, dissents.

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

SABERS, Justice

(dissenting).

[¶ 37.] I dissent because the denial of fourteen months credit for time served:

1) penalizes Closs for prevailing on his application for habeas corpus;
2) burdens Closs’ right to pursue relief through habeas corpus proceedings;
3) allows disparate treatment of inmates based on whether the court grants the State a stay pending appeal or has the inmate involuntarily committed to a mental institution;
4) extends Closs’ time in state custody by fourteen months without cause.

[¶ 38.] I do not question the propriety or ability of the Department of Corrections to institute involuntary commitment proceedings against an inmate in need of treatment. However, that is not the issue. The question is whether the denial of credit for fourteen months while Closs was involuntarily committed by the State during the pendency of the State’s appeal is proper. The answer to that question is an unequivocal “no.” Closs is entitled to credit against his prison sentence for the time he was involuntarily committed.

[¶ 39.] 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.

State prisoners also have a right under the Constitution and federal statutes to bring a habeas corpus action in federal court once state remedies have been exhausted. By denying credit for the time served in HSC, this Court burdens Closs’ statutory right to habeas corpus proceedings. By exercising his right and prevailing, the only thing Closs accomplished was to extend his time in custody for fourteen months. This was an end run by the State and a denial of due process and equal protection to Closs.

[¶ 40.] Rather than being analogous to credit for time served prior to conviction, this case is more analogous to credit for time served pending appeal. For example, in Holland v. Boles, the defendant was given a life sentence which was later overturned, but only after he had served eleven years on that sentence. When the defendant was retried and sentenced, he was initially denied credit on the eleven years served under the original sentence. In ordering that credit be given for that time, the court stated,

denial of credit for time served while in the de facto status of state prisoner is so fundamentally unfair as to constitute a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the Constitution.

Holland v. Boles, 269 F.Supp. 221, 224 (D.C.W.Va.1967) (quoting Patton v. North Carolina, 256 F.Supp. 225, 236 (W.D.N.C.1966)). Furthermore,* it has been held that “[t]o deny credit for time spent in jail after conviction if a person pursues his right to appeal is to place a burden on the exercise of that right ...” Arsad v. Henry, 317 F.Supp. 162, 164 (1970). This case is sufficiently analogous to grant Closs credit for time served while undergoing involuntary “treatment” at HSC. The denial of credit for time served is unfair and wrong.

[¶ 41.] First, there can be no question that Closs’ liberty was restricted during the time served at HSC. He could not leave HSC during the time he was committed. Additionally, we have held that far less intrusion on an inmate’s liberty constituted confinement for purposes of determining time served. In State v. Rollag, we unanimously held (with Justice Henderson concurring in result) that an inmate was entitled to credit for time served while he was on work furlough. 400 N.W.2d 278 (S.D.1987). In State v. Kiggins, we unanimously held that an inmate could be convicted of escape based on the defendant’s failure to return from a work release program stating, “[u]ntil his discharge by due process of law he remained under the legal restraint of his sentence and in constructive custody of the jail.'” 86 S.D. 612, 615, 200 N.W.2d 243, 244. (emphasis supplied). If a person free to come and go for work, as in Kiggins, and a person allowed to live at home as in Rollag, is confined for purposes of time served, certainly one wholly restricted to a mental institution against his will, with no possibility of leaving, is similarly confined and equally entitled to credit.

[¶ 42.] Second, the majority relies heavily on the fact that it was the County Board’s decision to commit Closs. This assertion is immaterial when one acknowledges that if not for the Department initiating those proceedings, Closs would not have been involuntarily committed. Therefore, even if we were to accept the majority’s test concerning whether Closs was entitled to credit, the fact is that but for his conviction and subsequent punishment, the Department would not have been able to institute such action. These events lead to the conclusion that his detention in the HSC was directly “related to his punishment for the [] conviction.” Therefore, he is entitled to credit.

[¶ 43.] Third, despite the fact that Closs prevailed in his habeas proceeding, the State never intended to let him out of its control. As soon as the court ruled in Closs’ favor, the State applied for a stay pending appeal. Upon denial of that petition, involuntary commitment proceedings were immediately instituted. Closs did not have one moment free of State control from the time he prevailed in the habeas proceeding and that decision was overruled and he was returned to the penitentiary. There was no time when Closs was at liberty, nor could there have been. The real effect of the State’s actions in this case was to involuntarily extend his sentence by fourteen months.

[¶ 44.] Without question, Closs would have been entitled to credit for time served had he remained in the penitentiary pending the State’s appeal. The only difference here is that the State failed in its attempt to keep him in the penitentiary. He was transferred to HSC through no fault or action of his own, but rather through the Department’s decision to commence involuntary commitment proceedings. The involuntary commitment proceedings were instituted immediately after the State’s petition for a stay was denied. As soon as Judge Piersol’s decision was overruled, the Department immediately transferred Closs back to the penitentiary. Nobody inquired as to how his “treatment” was progressing, or whether he had a continuing need for such “treatment” or discussed the possibility of keeping him in “treatment” rather than returning him to prison. The State decided it would keep him confined, and because it could not keep him confined in prison, it caused him to be involuntarily committed to HSC instead.

[¶ 45.] The only person who seems to doubt his need for treatment is Closs, and it seems clear that lacking a substantial improvement in his mental health, he will once again be returned to HSC for treatment when his sentence is finished. That is insufficient reason to deny him credit against his prison term for time involuntarily served at HSC. In fact, it may be one more reason to grant him the credit he deserves.

      . SDCL 24-15-24 provides:
      If the board of pardons and paroles is satisfied that any provision of § 24-15-20 has been violated, it may revoke the parole and reinstate the terms of the original sentence and conviction or it may modify conditions of parole and restore parole status. In addition, the board is authorized to order the. reduction of time in full or in part for good conduct granted under § 24-5-1. If the board does not find that the provisions of § 24-15-20 have been violated, it may restore the parolee to the original or modified terms and conditions of his parole.
      (emphasis added).
      SDCL 24-5-1 provides:
      Every inmate sentenced for any term less than life, or who has had an indeterminate sentence set at a term of years, or who has had a life sentence commuted to a term of years, and subject to the provisions of §§ 24-2-17 and 24-2-18, is entitled to a deduction of four months from his sentence for each year and pro rata for any part of a year for the first year to the tenth, and six months for the tenth year and for each year thereafter until the expiration of the period of the sentence as pronounced by the court, for good conduct.

      . According to the affidavit filed by Lint, Closs's condition was ongoing, and in the six years leading to his release from the penitentiary, Closs's aggressiveness had increased. Lint stated that when Closs took his medication, his acts of verbal and physical abuse decreased. However, Closs continually refused to take his medication. When he refused his medications, he became indiscriminately violent.

      . The significant exception is where the confinement is due to indigency. Closs has not argued that his commitment at HSC was related to indigency. Therefore, Fourteenth Amendment equal protection considerations are not implicated in this case. See Sorenson, 2000 SD 127 at ¶ 15, 617 N.W.2d at 149.

      . We ultimately concluded that Sorenson was not entitled to credit because his confinement, either at jail or at the HSC, was unrelated to indigency. Sorenson's confinement was caused by a bond violation.


text:
    2003 SD 3
    UPPER PLAINS CONTRACTING INC., Plaintiff and Appellee, v. PEPSI AMERICAS, Defendant and Appellant, and Chad Lesner, Defendant.
    No. 22388.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 18, 2002.
    Decided Jan. 8, 2003.

      Roy A. Wise of Richardson, Groseclose, Wyly, Wise & Sauck Aberdeen, South Dakota, Attorneys for plaintiff and appellee.
    Ronald J. Hall, Hall Law Firm, Aberdeen, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Upper Plains Contracting Inc. (UPCI) filed suit against “Pepsi Americas,” for damage allegedly caused when a Pepsi delivery truck drove over freshly poured concrete at a road construction project. Pepsi Americas failed to timely answer the complaint, and UPCI moved for a default judgment. Pepsi Americas retained counsel to appear and resist the motion for default judgment. Pepsi Americas also moved for an extension of time so it could file an answer to the complaint. The circuit court denied Pepsi Americas’ motion to extend the time to answer, and it granted UPCI’s motion for default judgment. Shortly after the entry of the default judgment, Pepsi Americas discovered that it was not the entity that owned the truck or employed the driver who drove on the concrete. Pepsi Americas then moved to have the default judgment vacated. The circuit court denied the motion to vacate the default judgment. Pepsi Americas appeals. We reverse.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] This appeal arose out of an incident that occurred when a Pepsi truck, driven by Chad Lesner, drove over freshly poured concrete at a road construction project. UPCI was the general contractor responsible for the construction project. UPCI and Pepsi Americas attempted to informally resolve the resulting damage claim. When those efforts faked, UPCI filed this suit alleging that Pepsi Americas and Lesner were liable for the damage to the roadway.

[¶ 3.] UPCI attempted to commence the lawsuit by mailing a summons and admission of service to Lisa Pigors, a secretary at Pepsi-Cola Bottling Co. of Aberdeen, LLC, a South Dakota limited liability company. The admission of service was addressed to “Pepsi Americas.” Pigors forwarded it to Attorney Scott Nehs, a Vice President of Pepsi Americas, Inc. Pepsi Americas, Inc. is a Delaware corporation with its principal place of business in Illinois. The corporation is what the parties have described as a third-tier indirect “parent” or holding company of Pepsi-Cola Bottling Co. of Aberdeen, LLC. Nehs signed the admission of service as “W. Scott Nehs, Vice-President Legal” without indicating the entity on whose behalf he was signing. UPCI was unsuccessful in commencing the suit against Lesner.

[¶ 4.] At the time Nehs admitted service of the summons and complaint, Shawn Nutter was adjusting the claim for Pepsi Americas and had been in communication with UPCI’s counsel. Ms. Nutter was a senior claims representative for Gallagher Bassett Services Inc., a third-party administrator that handled property damage claims against Pepsi bottling companies. Nehs stated by affidavit that Pepsi Americas did not answer the complaint because he knew that this adjuster was working on the case, and he knew that Lesner had not been served. Nehs believed the case would not proceed, and therefore, they would not need to file an answer until Lesner was served and joined as a co-defendant. Therefore, Pepsi Americas failed to answer the complaint within thirty days as required by SDCL 15 — 6—12(a).

[¶ 5.] Approximately twenty-four days after the time expired for Pepsi Americas to file its answer, UPCI mailed a motion for default judgment, notice of motion, and supporting affidavit to Pigors in Aberdeen. Although Nehs had “appeared,” UPCI did not serve the motion for default judgment upon Nehs as required by SDCL 15 — 6— 55(b)(1). Pigors did, however, forward the documents to Nehs. Nehs received the motion, affidavit and application on October 30, 2001, and he promptly retained counsel to appear, answer, and resist the motion.

[¶ 6.] The default judgment hearing was scheduled for November 6, 2001. At that time, Pepsi Americas resisted the motion for default judgment, and it moved for an extension of time so it could file an answer. Pepsi Americas argued that Nehs’ neglect in failing to file an answer was excusable. With respect to the merits of the suit, Pepsi Americas argued that UPCI was contributorily negligent because they had not properly barricaded the freshly poured concrete. Pepsi Americas also contested the amount of damages prayed for in UPCI’s complaint.

[¶ 7.] The circuit court ruled that Pepsi Americas did not demonstrate excusable neglect in failing to file a timely answer. Therefore, the circuit court denied Pepsi Americas’ motion to extend the time for filing an answer, and it granted UPCI’s application for a default judgment.

[¶ 8.] Shortly after entry of the default judgment, Pepsi Americas’ counsel discovered that Pepsi Americas was neither the owner of the truck nor Lesner’s employer. Apparently, Pepsi-Cola Bottling Company of Aberdeen, LLC owned the truck and employed Lesner.

[¶ 9.] Pepsi Americas then filed a motion for relief from the default judgment pursuant to SDCL 15-6-60(b). It also filed another motion for leave to file an amended answer. At the hearing on these motions, the circuit court ruled that Pepsi Americas demonstrated meritorious defenses, but it did not establish excusable neglect for having failed to file a timely answer. Therefore, the circuit court denied Pepsi Americas’ motions and reaffirmed the default judgment.

[¶ 10.] Pepsi Americas appeals raising five issues.

1. Whether the trial court abused its discretion in granting a default judgment to UPCI.
2. Whether the trial court abused its discretion in refusing to set aside the default judgment based on SDCL 15 — 6—60(b), and more specifically:
A. Whether the trial court abused its discretion in refusing to set aside the default judgment based on mistake, inadvertence, surprise or excusable neglect. (SDCL 15-6-60(b)(1)).
B. Whether the trial court abused its discretion in refusing to set aside the default judgment based on newly discovered evidence, which could not have been discovered in time to present before the hearing on UPCI’s application for default judgment. (SDCL 15-6-60(b)(2)).
C. Whether the trial court abused its discretion in refusing to set aside the default judgment based on misrepresentation of facts through proof by affidavit from plaintiffs attorney. (SDCL 15-6-60(b)(3)).
D. Whether the trial court erred in refusing to set aside the default judgment for lack of personal jurisdiction over, insufficiency of service upon, and failure to name the proper party defendant. (SDCL 15-6-60(b)(4)).

Because this appeal is resolved by issue 2 A, we only consider:

Whether the tidal court abused its discretion in refusing to set aside default judgment based on mistake, inadvertence, surprise or excusable neglect under SDCL 15-6-60(b)(l).

STANDARD OF REVIEW

[¶ 11.] We review a grant or denial of relief from a default judgment under the abuse of discretion standard of review.

“The decision to grant or deny relief from a default judgment rests with the sound discretion of the trial court and we will not disturb the trial court’s decision absent an abuse of that discretion.” “The trial court’s discretion is to be exercised liberally in accord with legal and equitable principles in order to promote the ends of justice.” “Ultimately, ‘any doubt should be resolved in favor of an application to set aside a judgment in order that the case may be tried upon the merits.’ ”

Smith v. Hermsen, 1997 SD 138, ¶ 8, 572 N.W.2d 835, 838 (internal citations omitted).

DECISION

[¶ 12.] “A default judgment is an extreme remedy and should only be granted when ‘the adversary process has been halted because of an essentially unresponsive party.’ ” Roso v. Henning, 1997 SD 82, ¶ 8, 566 N.W.2d 136, 140 (further citations omitted). “Default judgments are not favored in the courts since their effect is to prevent a trial on the merits.” Colton Lumber Co. v. Siemonsma, 2002 SD 116, ¶ 9, 651 N.W.2d 871, 874 (citing National Surety Corp. v. Shoemaker, 86 S.D. 302, 309, 195 N.W.2d 134, 138 (1972)).

[¶ 13.] A court may relieve a party from a default judgment pursuant to SDCL 15-6-55(c) and 15-6-60(b). SDCL 15-6-60(b)(1) provides: “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for ... Mistake, inadvertence, surprise, or excusable neglect.” Relief from a default judgment under the excusable neglect portion of this statute may be granted upon a showing that the defendant “(1) acted with excusable neglect and (2) had a meritorious defense.” Hermsen, 1997 SD 138, ¶ 10, 572 N.W.2d at 838 (further citations omitted). “Excusable neglect must be neglect of a nature that would cause a reasonably prudent person under similar circumstances to act similarly.” Id. (citing Peterson v. LaCroix, 420 N.W.2d 18, 19-20 (S.D.1988)). “The term excusable neglect has no fixed meaning and is to be interpreted liberally to insure that cases are heard and tried on the merits.” Id. (citing Eby v. Misar, 345 N.W.2d 381, 383 (S.D.1984)).

[¶ 14.] In this case, Pepsi Americas argued that its affidavits established excusable neglect, mistake and meritorious defenses. Pepsi Americas contended that it established excusable neglect by showing that it believed that the case would not proceed, and that it need not answer, until the driver of the truck was served and joined as a co-defendant. Pepsi Americas also argued that both parties mistakenly believed that Pepsi Americas was the proper party defendant. Pepsi America finally raised the defenses of contributory negligence and a substantial challenge to the $52,464.83 damage claim pled by UPCI and awarded in the default judgment.

[¶ 15.] The circuit court rejected these arguments reasoning:

[I]t certainly would appear to the Court questionable as to what the entity’s name is that owns the truck.... [T]he simplest thing to do would be to file your Answer, contest the action and put the Plaintiff on his strict proof but they didn’t file an Answer, they didn’t deny that they were the owners.... So it appears to the Court that they had an opportunity here to defend the action, they didn’t do that, it wasn’t on the part or wasn’t due to any representation or misrepresentations made by the Plaintiff, they simply failed to respond, that it isn’t — it would not qualify as excusable neglect or inadvertence!.]

We conclude that this reasoning misapplies our precedent because it fails to consider all of the facts relating to the reasons for Pepsi Americas neglect, it fails to consider the mutual mistake, it fails to utilize the underlying balancing which is inherent in all cases decided under SDCL 15 — 6—60(b), and it fails to apply the required favoritism for a trial on the merits.

[¶ 16.] We have recently noted that when deciding whether to grant relief from a default judgment under SDCL 15—6—60(b), courts must “preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscience that justice be done in light of all the facts.” Colton Lumber Co., 2002 SD 116, ¶ 10, 651 N.W.2d at 874 (emphasis added) (further citations omitted). Here, Pepsi Americas’ affidavits set forth facts not considered in the circuit court’s reasoning. Specifically, Pepsi Americas affidavits indicated that UPCI’s claim had been assigned to Gallagher Basset for adjustment. In that process, Ms. Nutter had communicated with, and made a compromise offer to UPCI’s attorney that was rejected. UPCI’s attorney had later copied Ms. Nutter and Pepsi-Cola of Aberdeen, LLC with a letter to the sheriff indicating that UPCI was still attempting to obtain service on Lesner. Because she was sent a copy of the letter, Ms. Nutter understood that UPCI’s attorney was aware of her continuing involvement. Ms. Nutter and Nehs also believed that they need not answer at that time, because they “understood” that UPCI would not proceed with the suit before Lesner was served.

[¶ 17.] These facts could have led a reasonably prudent person to a similar understanding. Pepsi Americas was actively defending by use of an adjuster who was attempting to resolve the claim. At the same time, Pepsi Americas was waiting for a crucial co-defendant to be joined before it filed its answer. Under these circumstances, a reasonably prudent person could have believed that they could delay filing their answer. Indeed, the circuit court did not find otherwise. Instead, its analysis only mentioned the fact that UPCI did not misrepresent the proper defendant and that Pepsi Americas could have filed a timely answer. The circuit court erred in not also considering the other facts and circumstances relating to Pepsi Americas’ understanding, and then determining whether that “understanding” was reasonable and therefore excusable neglect.

[¶ 18.] Additionally, the circuit court’s reasoning does not reflect that it considered that the judgment was entered as a result of an apparent mistake by both parties. It appears from the record that both parties mistakenly assumed that Pepsi Americas was the proper defendant. UPCI’s counsel filed an affidavit in support of its motion for default judgment in which UPCI erroneously asserted “[a]t the time of this incident, Mr. Lesnar [sic] was an employee or agent of defendant Pepsi Americas and was driving a truck oimed by such defendant ” (emphasis added). At the same time, Pepsi Americas was negotiating a settlement of the claim as if it were the proper defendant. Until default judgment was entered, it appears that both parties mistakenly assumed that Pepsi Americas was the proper party defendant. Clearly, there was a mutual mistake as to the identity of the employer who could be vicariously liable for the damage allegedly caused by Lesner.

[¶ 19.] Pepsi Americas also asserted other defenses. In that regard, Pepsi Americas filed an affidavit from Lonnie Anderson, manager of Clark Engineering Corporation. Anderson estimated that the damage caused by the delivery truck was only $17,483,07. That estimate was less than one-half of that prayed for in the complaint and awarded by the court. We have held that a discrepancy in damages alone can give-rise to “a prima facie showing of a meritorious defense.” Meier, 2001 SD 103, ¶ 27, 632 N.W.2d at 484. Pepsi Americas also asserted a colorable contributory negligence defense.

[¶ 20.] The trial court erred failing to give due consideration to Pepsi America’s substantial defenses. “Although the trial court should first consider the degree of defendants’ negligence in failing to appear, even a willful default may be excused if defendants’ position on the merits is so strong that it would be unjust to affirm the judgment.” Courtyard Partners v. Tanner, 157 Vt. 638, 595 A.2d 287 (1991) (citing Wagstaff-El v. Carlton Press Co., 913 F.2d 56, 57 (2nd Cir.1990)). Here, Pepsi Americas’ showing established that it was precluded from presenting what appear to be substantial defenses relating to the proper parties, contributory negligence and damages. If the default judgment were not set aside, Pepsi Americas would likely be forced to pay a disputed award for which it was apparently not liable.

[¶ 21.] In considering SDCL 15-6-60(b) motions, we finally note that courts should consider whether vacating a default judgment would prejudice the non-moving party. Hermsen, 1997 SD 138, ¶ 11, 572 N.W.2d at 838-839 (further citations omitted). In this case, Pepsi Americas’ was only twenty-four days late in filing its answer. Upon receiving UPCI’s motion for a default judgment, Pepsi Americas promptly retained counsel, resisted the motion for default judgment, and attempted to answer the complaint. Following entry of the default judgment, Pepsi Americas’ counsel investigated the facts and promptly sought relief from the judgment. These facts do not disclose, and we have not been directed to any record evidence that reflects, that these delays caused prejudice to UPCI.

[¶ 22.] Under these circumstances “cases should ordinarily be decided on their merits, [and] elementary fairness demands of courts a tolerant exercise of discretion in evaluating excusable neglect.” Roso, 1997 SD 82, ¶ 12, 566 N.W.2d at 141 (further citations omitted). Moreover, courts must insure “that justice be done in light of all the facts,” Colton Lumber Co., 2002 SD 116, ¶ 10, 651 N.W.2d at 874. Considering all of the facts relating to excusable neglect, mistake, the substantial defenses and the lack of prejudice, we conclude that the need to decide this case on the merits significantly outweighs any negligible effect this decision will have on the sanctity of the final judgment.

[¶ 23.] We therefore reverse.

[¶ 24.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, and AMUNDSON, Retired Justice, concur.

[¶ 25.] SABERS, Justice, concurs specially.

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

SABERS, Justice

(concurring specially).

[¶27.] I agree that the default judgment should be vacated based on excusable neglect. It should have been vacated by the trial court without the time, trouble and expense of an appeal. In fact, this default judgment should not have been granted in the first place because:

1.The summons and complaint did not name the proper party defendant, Pepsi-Cola Bottling Co. of Aberdeen.
2. The admission of service was not signed by a proper person to receive service of process. SDCL 15 — 6— 4(d)(2) (providing that if the action is against a foreign private corporation, service shall be “on the president or other head of the corporation, secretary, cashier, treasurer, a director or managing agent thereof’).
3. There was no testimony under oath by competent witnesses as to damages. See Meier v. McCord, 2001 SD 103, ¶ 13, 632 N.W.2d 477, 484 (stating that although the trial court has discretion under SDCL 15-6-55(b) whether to conduct hearings to determine the amount of damages, when there is little evidence presented regarding damages, such hearing is advisable).
4. The correct defendant had a valid defense to liability and damages.

      . Although "Pepsi Americas” is named as the defendant, the briefs indicate that the actual name of the company involved in this proceeding is "Pepsi Americas, Inc.”

      . SDCL 15 — 6—4(i) provides:
      Notwithstanding any other provision of law, a summons may be served upon a defendant in any action by mailing a copy of the summons, two copies of the notice and admission of service, conforming substantially to the form provided for in § 15 — 6—4(j), and a return envelope, postage prepaid, addressed to the sender. The notice and admission of service shall set forth that the failure to sign and return the admission of service within twenty days after the date of mailing without good cause will result in the court ordering the person so served to pay the costs of personal service.
      Unless good cause is shown for not returning the admission of service to the sender within twenty days of mailing, the court shall order the payment of the costs of personal service to be paid by the defendant in the action.

      . SDCL 15 — 6—55(b)(1) provides in part: “If the party against whom judgment by default is sought has appeared in the action, he ... shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.” Although Pepsi Americas did not file an answer, its ongoing involvement in this case constituted an appearance. See Meier v. McCord, 2001 SD 103, ¶ 23, 632 N.W.2d 477, 483.

      . SDCL 15-6-55(c) provides ''[£]or good cause shown the court may set aside a judgment by default in accordance with § 15-6-60(b).

      . Even if there was some relationship between Pepsi Americas and Pepsi-Cola Bottling Co. of Aberdeen, LLC, Pepsi Americas argues that it was not liable for the acts of a limited liability company. SDCL 47-34A-303(a) provides some limited liability:
      Except as otherwise provided in subsection (c), the debts, obligations, and liabilities of a limited liability company, whether arising in contract, tort, or otherwise, are solely the debts, obligations, and liabilities of the company. A member or manager is not personally liable for a debt, obligation, or liability of the company solely by reason of being or acting as a member or manager.


author: SABERS, Justice.

text:
    2003 SD 4
    Ron KIRSCHENMAN and Larry Stern, Petitioners and Appellants, v. HUTCHINSON COUNTY BOARD OF COMMISSIONERS, Gillas Stern and Russell Leonard, and Jerome Hoff, County Auditor, Respondents and Appellees.
    No. 22520.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 18, 2002.
    Decided Jan. 8, 2003.
    Rehearing Denied Feb. 13, 2003.

      James G. Abourezk, Sioux Falls, South Dakota, Attorneys for petitioners and appellants.

      Glenn L. Roth, Hutchinson County-State’s Attorney, Olivet, South Dakota, Attorneys for respondents and appellees.
   SABERS, Justice.

FACTS-

[¶ 1.] The Hutchinson County Board of Commissioners (Board) granted David Meyer a conditional use permit following a public hearing on April 16, and the Board’s vote on May 2, 2002. The use permit allowed Meyer to construct and operate a 3,200-head hog confinement facility within Hutchinson County. A group of Hutchinson County citizens (Kirschenman) filed petitions with the Hutchinson County Auditor calling for a referendum vote on the issue. The Board voted to reject the petitions and the County Auditor concurred in the decision. The basis for rejecting the petitions was the Board’s determination that the decision to grant the permit was administrative, not legislative under SDCL 7-18A-15.1, and therefore not referable. Kirschenman filed a petition with the circuit court for a writ of mandamus to compel the Board to submit the issue to a referendum. The circuit court denied the writ holding that the decision was administrative and therefore not referable. Kir-schenman appeals raising two issues:

1. Whether the Board of Commissioner’s grant of a conditional use permit was a legislative act and subject to referendum.
2. Whether Kirschenman is entitled to a writ of mandamus to compel the Board to place the referendum measure on the ballot.

We hold that the decision to allow the use permit was legislative, not administrative, and therefore referable and that Kirschen-man was entitled to the writ.

STANDARD OF REVIEW

[¶ 2.] The question of whether the Board’s decision to grant the use permit was legislative or administrative is a question of law which we review de novo. Voeltz v. Morrell & Co., 1997 SD 69, ¶ 9, 564 N.W.2d 315, 316 (citations omitted).

[¶ 3.] The decision to grant or deny a writ of mandamus is reviewed under an abuse of discretion standard. Vitek v. Bon Homme County, 2002 SD 45, ¶ 5, 644 N.W.2d 231, 232 (citing Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 N.W.2d 265, 269-270) (additional citations omitted). In order to compel the Board to submit the decision to referendum, Kirschenman must have “a clear legal right to performance of the specific duty sought to be compelled,” and the Board “must have a definite legal obligation to perform that duty.” Vitek, 2002 SD 45, at ¶8, 644 N.W.2d at 234.

[¶4 ] 1. WHETHER THE BOARD OF COMMISSIONER’S GRANT OF A CONDITIONAL USE PERMIT WAS A LEGISLATIVE ACT AND SUBJECT TO REFERENDUM.

[¶ 5.] The citizens of South Dakota have a constitutionally established right to refer legislative actions to a public vote. SDConst art III, § 1. The South Dakota Code provides that the authority granted to municipal governing bodies to make legislative decisions is subject to the referendum process. SDCL 7-18A-15.1; See also, Wang v. Patterson, 469 N.W.2d 577, 578 (S.D.1991). However, administrative decisions by those governing bodies are not referable. SDCL 7-18A-15.1. Thus our first inquiry is whether the decision of the Board to grant the use permit was legislative or administrative. The term “legislative” has been defined by the legislature as:

[a] decision that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision.

SDCL 7-18A-15.1. An “administrative decision” is:

one that merely puts into execution a plan already adopted by the governing body itself or by the Legislature. Supervision of a program is an administrative decision. Hiring, disciplining and setting the salaries of employees are administrative decisions.

Id.

[¶ 6.] We first discussed the distinction between administrative and legislative decisions in Wang, where we stated,

[t]he distinction is rooted in realism. Clearly, all municipal action cannot be subject to local review by the electorate. “If government is to function there must be some area in which representative action will be final. In many situations it is difficult to determine how far the limitations should go. The courts must draw the line in these situations and in so doing must balance two interests— the protection of city government from harassment as against the benefits of direct legislation by the people.”

469 N.W.2d at 579 (quoting D’Ercole v. Mayor and Council of Norwood, 198 N.J.Super. 531, 487 A.2d 1266 (App.Div.1984)) (citations omitted).

[¶ 7.] We have held that where the local government has discretion as to what it may do and it acts under that discretion, it is a legislative act subject to referendum. Wang, 469 N.W.2d at 580. Furthermore, in determining whether an act is legislative or administrative, we apply a liberal rule of construction to permit citizens to exercise their powers of referendum. Id. In this case, the Board had the power to decide whether to grant a conditional use permit. Section 1805 of the County zoning ordinance provides in part,

The Board of Adjustment shall have the power to hear and decide, in accordance with the provisions of this ordinance, requests for conditional uses or for decisions upon other special questions upon which the Board of Adjustment is authorized by this ordinance to pass: to decide such questions as are involved in determining whether conditional uses should be granted: and to grant conditional uses with such conditions and safeguards as are appropriate under this ordinance, or to deny conditional uses when not in harmony with the purpose and intent of this ordinance.

The Board retains complete discretion to determine whether to grant or deny particular conditional use permits. Prior to the Board’s vote, these residents had no notice that a 3,200-head hog confinement facility would be placed in their county. As such, we hold that the Board’s action was legislative and subject to referendum.

[¶ 8.] The Board argues that our recent decision in Vitek is determinative. The Board points to a footnote in the opinion which provided that if the county had granted a variance, “neither permitted nor contemplated under the county’s zoning law, the grant of the variance would be legislative and not administrative.” Vitek, 2002 SD 45, 644 N.W.2d at 233. This statement, the Board contends, leads to the conclusion that since § 1805 provides the Board the power to grant use permits, the action is administrative. The Board ignores the language leading to the footnote which stated, “[i]t would appear that a variance of this nature [allowing for a 3,300-head hog confinement facility] is substantial and would be legislative and therefore subject to referendum, but we are unable to discern whether this is true because of an incomplete record.” Vitek, 2002 SD 45 at ¶ 7, 644 N.W.2d at 233. The footnote in Vitek was not intended to allow counties to deny citizens their power of referendum by merely giving a board the blanket power to grant or deny a conditional use permit. This decision is one that affects not only Meyer and his immediate neighbors, but the entire county. This direct and immediate impact on the electors in Hutchinson County weighs heavily in favor of allowing the electors themselves to determine whether the facility should be allowed.

[¶ 9.] The Board next argues that because the zoning ordinance allows it to grant conditional use permits, and specifically states that one of the uses allowed is “animal feeding operation lagoons and holding facilities,” the citizens of Hutchinson County should have taken action at the time the ordinance was created. However, just as in Wang, the fact that the ordinance lays out the possibility of allowing such uses did nothing to put the voters on notice that such a use would ultimately be allowed, or, even if it did, that it would permit a feeding operation of this size. Our analysis in Wang is equally applicable in this case. First, the ordinance merely authorizes the Board to grant or deny use permits. It does not create a “plan” of allowing such permits which would apprise citizens of the Board’s decision to allow such a facility. Second, and perhaps more importantly, the ordinance itself lays out no objective criteria upon which the Board would rely in determining whether to allow a 3,200-head hog confinement facility. This ordinance is simply an open-ended statement that the Board is allowed to grant or deny a use permit for an animal confinement facility. There are no standards or conditions for determining where, when or how such a facility would be allowed. For example, no conditions are specified concerning the number of permitted animals, proximity to residences, water sources, or other clear objective criteria. In fact, it is impossible to “put [a plan] into execution” where there is no plan “already adopted by the governing body.” See SDCL 7-18A-15.1. In the absence of such objective criteria, the Board’s grant of a conditional use permit was not administrative. Finally, the Board’s argument would mean that the citizens of Hutchinson County could never call for a referendum on a use permit because it is past the time that a referendum could be called on this general zoning ordinance. Wang, 469 N.W.2d at 580. In this instance, the “benefits of direct legislation” outweigh the potential for harassment of the local governing body. The decision of the Board was legislative and therefore referable.

[¶10.] 2. WHETHER KIRSCHEN-MAN IS ENTITLED TO A WRIT OF MANDAMUS TO COMPEL THE HUTCHINSON COUNTY AUDITOR TO PLACE THE REFERENDUM MEASURE ON THE BALLOT.

[¶ 11.] Kirschenman seeks a writ of mandamus to compel the County Auditor to place this issue on the ballot as a referendum. A writ of mandamus is an exceptional remedy. It is used,

to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.

SDCL 21-29-1. Mandamus will issue only “where there is not a plain, speedy and adequate remedy, in the ordinary course of law.” SDCL 21-29-2. Thus, in order to prevail, Kirschenman “must show that he had a clear legal right to submit [the Board’s] decision to the referendum process, and that [the Board] must have a definite legal obligation to submit its decision to the referendum process.” Vitek, 2002 SD 45 at ¶ 8, 644 N.W.2d at 234.

[¶ 12.] The Board asserts that the exclusive remedy provisions of SDCL 7-8-27 and SDCL 7-8-32 preclude Kirschen-man’s action for a writ. However, as we stated in Vitek, “[w]hile the direct appeal provided for in [these] statute[s] represent [an] exclusive statutory remedy, [they] trump neither the South Dakota Constitution nor the statutes that implement it.” 2002 SD 45 at ¶ 9, 644 N.W.2d at 234. The referendum power is reserved to the people of South Dakota through our constitution. SDConst Art III § 1. This right is specifically extended to the legislative actions of a Board of County Commissioners by SDCL 7-18A-15.1. Kirschenman therefore has a “clear legal right” to submit this decision to referendum. The legal obligation of the County to submit the referendum petition to a vote is provided- by SDCL 7-18A-16. Kirschenman is therefore entitled to a writ of mandamus to compel placing this decision before the voters of Hutchinson County. The circuit court is reversed.

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

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