text:
    2007 SD 106
    Tillie TUCEK, Appellant, v. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, Appellee.
    No. 24444.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 27, 2007.
    Decided Oct. 17, 2007.

      Douglas R. Kettering of Kettering Law Office, Yankton, South Dakota, Attorney for appellant.
    Lawrence E. Long, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Legal Division, Department of Social Services, Pierre, South Dakota, Attorneys for appellee.
   SABERS, Justice.

[¶ 1.] After the Department of Social Services (DSS) sent Tillie Tucek a notice that her long-term care benefits under Medicaid would be terminated, Tucek applied for a hearing. The administrative law judge (ALJ) initially found in favor of Tucek in a pending decision, but later found in favor of the Department. The circuit court affirmed the termination of Tucek’s long-term care benefits. Tucek appeals. We affirm.

FACTS

[¶ 2.] In 1995 and 1996, Tucek purchased five annuities from Lee Skalberg, an agent for Conseco Annuity Assurance Company (Conseco). She paid $10,000 each for the first four annuities in 1995 and $40,000 for the fifth annuity in 1996. The chosen settlement option of the annuities was for “life or twenty years certain.” Tucek was to receive payments for her life; or if she were to die within twenty years of purchasing the annuities, her chosen beneficiary would receive the payments for the remainder of the twenty years.

[¶ 3.] Tucek went to live in a nursing home in September of 1999. For the next three years, Tucek paid for her own nursing care costs.

[¶ 4.] In 2002, the five annuities were rolled into a structured settlement, entitled Contract # SS976057. Tucek alleged she had no control over the settlement option and the company, of its own accord, rolled all the annuities into the structured settlement. Once the annuities had been combined, Tucek claimed the original five annuities were surrendered to Conseco and were no longer in Tucek’s possession, or in the possession of her daughter, as her power of attorney, or the insurance agent.

[¶ 5.] In February of 2003, she applied for long-term care assistance through DSS. As a part of the application, Tucek listed all assets, including the annuities. The DSS verification form reflected the 1995 annuities and did not show the 2002 consolidatio'n. Tucek was over the resource limit due to her interest in a life estate, so her application was rejected. She sold her interest in the life estate and reapplied for assistance in March of 2003. This application was granted and Tucek began receiving long-term care assistance through DSS.

[¶ 6.] In 2004, Tucek’s case was chosen to be reviewed by DSS personnel as part of its quality control review process. During this review, DSS discovered that the original annuities were rolled into the 2002 structured settlement. Finding that the annuity was an available resource, which placed Tucek over the resource limit, DSS sent her notice that her assistance would end March 2005. She requested an administrative hearing, which was held August 1, 2005.

[¶ 7.] At the hearing, despite a subpoena for the contracts, neither the original annuity contracts nor the contract for the structured settlement were in evidence. Instead, the insurance broker Skalberg testified that all the annuity contracts were the same, Tucek had no control over the settlement option, and the decision to roll the annuities into the structured settlement was arrived at by the company based on the settlement options in the original five annuities. Skalberg and Lillian Schlechter, Tucek’s daughter and power of attorney, testified that neither the structured settlement nor the original annuities could be cashed, sold or borrowed against because they only guarantee a stream of payments during her life.

[¶ 8.] As the hearing on August 1 ended, the ALJ stated that “we may have another hearing or I may have, a telephone conference to get more information or more documents.” However, the ALJ issued a pending decision on August 4, 2005, which found in favor of Tucek. DSS moved to reopen the hearing for additional evidence and for additional time to obtain copies of the annuity contracts from Con-seco. Despite Tucek’s resistance, the ALJ granted the motion and ordered the matter stayed for 90 days.

[¶ 9.] A second hearing was held February 16, 2006. Again, the attempts to obtain the annuity contracts failed. Con-seco supplied a specimen contract to Tu-cek, who then gave it to DSS. It was admitted into evidence, over Tucek’s objection. After this hearing, the ALJ issued a second pending decision, this time in favor of DSS. ■

[¶ 10.] Tucek objected to the pending decision, but the ALJ issued a final decision on April 4, 2006, adopting the second pending decision. In this decision, the ALJ found that Skalberg’s testimony was incorrect. It noted that Skalberg testified that the annuity policies were all the same and annuities could not be cashed, sold, or borrowed against. Contrary to his testimony, the specimen contract allowed for a change in ownership, withdrawals and lump sum payments. Other documentation provided demonstrated Tucek participated in the combining of the annuities. This raised a question regarding the terms of Tucek’s annuity contracts. The ALJ concluded her contracts were necessary in order to determine whether she was eligible for benefits. Therefore, the ALJ found Tucek did not provide DSS with sufficient information to determine her eligibility for long-term care assistance and that DSS could terminate her long-term care assistance pursuant to ARSD 67:46:03:01.

[¶ 11.] Tucek appealed to the circuit court, which affirmed the ALJ’s decision. Tucek appeals.

Whether DSS was correct in terminating Tucek’s long-term care assistance for failure to provide sufficient evidence of eligibility.

STANDARD OF REVIEW

[¶ 12.] In an appeal from a circuit court’s review of an administrative agency’s decision, “we review the agency’s decision unaided by any presumption that the circuit court’s decision was correct.” Huber v. Dep’t of Public Safety, 2006 SD 96, ¶10, 724 N.W.2d 175, 178 (quoting Meligan v. Dep’t of Revenue & Regulation, 2006 SD 26, ¶ 13, 712 N.W.2d 12, 17 (quoting Kassube v. Dakota Logging, 2005 SD 102, ¶ 25, 705 N.W.2d 461, 465)). “The Department’s factual findings and credibility determinations are reviewed under the clearly erroneous standard.” Id. (quoting Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 15, 711 N.W.2d 244, 247 (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83)). “Questions of law are reviewed de novo.” Id. “Mixed questions of fact and law are fully renewable.” VanSteenwyk v. Baumgartner Trees & Landscaping, 2007 SD 36, ¶ 10, 731 N.W.2d 214, 218 (quoting Orth v. Stoebner & Permann Const., Inc., 2006 SD 99, ¶ 27, 724 N.W.2d 586, 592 (quoting Brown v. Douglas Sch. Dist., 2002 SD 92, ¶ 9, 650 N.W.2d 264, 268)).

[¶ 13.] The standard of review varies depending on the type of evidence presented to the agency:

When findings of fact are made based on live testimony, the clearly erroneous standard applies. “Deference and great weight are given to the hearing examiner on fact questions. “When factual determinations are made on the basis of documentary evidence, however, we review the matter de novo, unhampered by the clearly erroneous rule.’ ”

Id. ¶ 11 (quoting Orth, 2006 SD 99, ¶ 28, 724 N.W.2d at 592) (additional and internal citations omitted).

[¶ 14.] Whether DSS was correct in terminating Tucek’s long-term care assistance for failure to provide sufficient evidence of eligibility.

[¶ 15.] To help provide health care to needy individuals, states have the option of participating in Medicaid under Title XIX of the Social Security Act. Mulder v. S.D. Dep’t of Social Services, 2004 SD 10, ¶ 7, 675 N.W.2d 212, 215; see 42 USC 1396a-v, amended by PL 110-90, September 29, 2007, 121 Stat 984. States choosing to participate must adopt regulations to comply with the act. Mulder, 2004 SD 10, ¶ 7, 675 N.W.2d at 215; 42 USC 1396a(a). Long-term care is an optional category of coverage under Title XIX. 42 USC 1396a(a)(10)(A)(ii)(V).

[¶ 16.] South Dakota enacted SDCL 28-6-1 in order to participate in the Medicaid program. Mulder, 2004 SD 10, ¶ 7, 675 N.W.2d at 215. Through various statutes, the Legislature delegated rule making authority to DSS necessary to determine eligibility for various services under the federal Social Security Act, including long-term care assistance. SDCL 28-1-1, SDCL 28-6-1; SDCL 28-6-18. These regulations are located at ARSD 67:46:01 et seq.

[¶ 17.] ARSD 67:46:02:03 and 67:46:03:01 place the burden on the applicant or recipient of long-term care assistance to supply sufficient information to determine initial and continuing eligibility. ARSD 67:46:02:03 provides:

Initial and continuing eligibility for long-term care assistance shall be determined by the department on the basis of statements submitted by the applicant or recipient of long-term care assistance about the facts that are within the applicant’s or recipient’s knowledge and competence. Verification through contacts is required for selected items, including family composition, resources, and income.

Additionally, ARSD 67:46:03:01 provides:

The applicant or recipient of long-term care shall have the primary responsibility of furnishing the department information necessary'to'determine eligibility or ineligibility for long-term care assistance. Failure of the applicant or recipient to furnish the necessary information may result in the rejection or termination of long-term care assistance.

An applicant or recipient “must take advantage of all income and resources” and failure to do so “makes the individual ineligible for long-term care services and medical assistance.” ARSD 67:46:05:13. Also, if the individual has more than $2,000 in resources, they are ineligible for assistance. ARSD 67:46:05:30.

[¶ 18.] It 'is DSS’s position that the structured settlement annuity is an “available resource” or the original annuities were available to Tucek before the consolidation in 2002 resulting in a period of ineligibility due to the five-year look back rule. SDCL 28-6-3.1; ARSD 67:46:05:09; ARSD 67:46:05:32. DSS argues that Tu-cek has the burden of providing information to demonstrate she is eligible for assistance. DSS claims the ALJ did not err when it concluded Tueek’s assistance could be terminated under ARSD 67:46:03:01 because she did not provide enough information to determine eligibility. DSS claims Tucek should have produced the original annuity contracts and the 2002 structured settlement annuity contract in order to determine her available resources.

[¶ 19.] Tucek claims that the ALJ erred when it admitted the specimen contract over her objection. She argues that the contract is inadmissible hearsay and no foundation was provided for its admittance. Therefore, she claims the document should have been excluded when she objected.

[¶ 20.] The record contains no transcript for the second hearing. The parties entered into a stipulation regarding the record for this hearing. The stipulation provides that the ALJ “entered his Final Opinion ... based upon evidence which included documents which were obtained by Subpoena and relating to annuities purchased by Tillie Tucek.” Furthermore, the parties agreed the subpoenaed documents were offered by DSS and were admitted over the objection of Tucek “for hearsay foundation and other basis to include the fact that the same were not testified to by officials of the insurance company as to whether or not they applied to the instant action.”

‘ [¶ 21.] The specimen contract is not hearsay. It was offered for impeachment or rebuttal rather than “to prove the truth of the matter asserted.” See SDCL 19-16-1(3). The specimen contract was offered to rebut Skalberg’s testimony that all of Conseco’s annuity policies were the same and that the policies could never be sold, borrowed against or cashed. Moreover, verbal acts are excluded from the hearsay category “because they are not assertions and not adduced to prove the truth of the matter” but instead “the statement itself affects the legal rights of the parties or' is a circumstance bearing on conduct affecting their rights.” Mueller v. Abdnor, 972 F.2d 931, 937 (8th Cir.1992) (quoting FRE 801(c) advisory committee’s notes); see also 2 John W. Strong et al., McCormick on Evidence, § 249 at 101 (4th ed 1992); 6 John H. Wigmore, Evidence § 1770 at 259 (James H. Chadbourn rev ed 1976). In Mueller, the Eighth Circuit Court of Appeals specifically noted that a contract is a form of verbal act. In ruling the contract was not hearsay and therefore admissible it explained:

A contract, for example, is a form of verbal act to which the law attaches duties and liabilities and therefore is not hearsay. In particular, evidence of lost profits based on a contract is not subject to the hearsay rule because such evidence concerns the existence of the contractual terms rather than an assertion of their “truth.”

972 F.2d at 937 (internal citations omitted).

[¶22.] Tucek argues the specimen contract should have been excluded for lack of foundation. However, the record does not reflect whether no foundation was actually provided because the hearing transcript is absent from the record. The stipulation as to the record only provides that the document was received over Tu-cek’s hearsay and foundational objections. “If the appellate record is incomplete, this Court presumes that the trial court acted correctly.” State v. Corey, 2001 SD 53, ¶ 8, 624 N.W.2d 841, 843-44 (citing Baltodano v. N. Cent. Health Services, Inc., 508 N.W.2d 892, 895 (S.D.1993)). Therefore, we presume the ALJ properly admitted the specimen contract.

[¶ 23.] Finally, Tucek argues that the ALJ did not reconcile ARSD 67:46:03:01 with ARSD 67:46:02:03, which provides:

Initial and continuing eligibility for long-term care assistance shall be determined by the department on the basis of statements submitted by the applicant or recipient of long-term care assistance about the facts that are within the applicant's or recipient’s knowledge and competence. Verification through contacts is required for selected items, including family composition, resources, and income.

Additionally, ARSD 67:46:03:01 gives the applicant or recipient the primary responsibility of furnishing the necessary information in order to determine eligibility. It also provides that failure to meet this burden may result in rejection or termination of assistance. Tucek claims that the contracts were beyond her knowledge and competence.

[¶ 24.] The State argues that Tucek is in the best position to provide the information to DSS. We agree. The two pages of the annuity contract that Tucek provided indicate Tucek was to place the document “with other valuable documents for future reference.” These are Tucek’s contracts and the burden is on her to provide the information to determine eligibility. If she no longer had the contracts or conformed copies, she should have obtained them and provided them. She failed to do so.

[¶ 25.] Ultimately, the ALJ did not reach a finding that Tucek could access the money and was ineligible for long-term care assistance. Instead, the ALJ found that Tucek failed to provide sufficient evidence to resolve eligibility because she did not provide the actual contracts. These contracts were needed to determine whether Tucek could reach or access the money and exceed the $2,000 resource limitation. Since.Tucek did no.t provide sufficient evidence, DSS was allowed to terminate ■ assistance. See ARSD 67:46:03:01.

[¶ 26.] Affirmed.

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

      . It is sometimes referred to as # 55976057.

      . Skalberg did not have the original contracts and testified about the documents from memory.

      . The resource limit is $3,000 if an individual is married. ARSD 67:46:05:30.

      . ARSD 67:46:05:32 explains that ''[i]f an individual ... or someone ... authorized to act on behalf of the individual ... has the legal power to dissolve the trust or invade the principal and use the proceeds, the principal of the trust is considered a resource.” An annuity qualifies as a trust. ARSD 67:46:05:01(13).


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2007 SD 104
    In the Matter of the Petition of MONTANA-DAKOTA UTILITIES CO. for Approval to Provide Electrical Service for the New North Central Farmers Elevator to be Located Near Bowdle, South Dakota.
    No. 24448.
    Supreme Court of South Dakota.
    Argued on Aug. 30, 2007.
    Decided Oct. 17, 2007.

      David A. Gerdes of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attor-neys for appellant Montana-Dakota Utili-^ies.
    John J. Smith, Assistant Attorney General, South Dakota 'Public Utilities Corn-mission, Pierre, South Dakota, Attorneys for appellee South Dakota Public Utilities Comm.

      Robert C. Riter, Jr., Margo D. Northrup, Darla Pollman Rogers of Riter, Rogers, Wattier & Brown, Pierre, South Dakota, Attorneys for appellee FEM Electric & SD Rural Elec. Assoc.
    Carlyle Richards of Richards & Oliver, Aberdeen, South Dakota, Attorneys for ap-pellee North Central Farmers Elev.
   KONENKAMP, Justice.

[¶ 1.] The question we address in this administrative appeal is whether an electric utility may petition to provide service outside its statutorily assigned service territory to a “large load” customer in another utility’s assigned service area. We conclude that SDCL 49-34A-56 allows only customers to petition for an outside provider. Thus, we affirm the Public Utilities Commission’s ruling that an outside provider lacked standing to bring a petition under the statute.

Background

[¶ 2.] The Public Utilities Commission (PUC) regulates which utility provides a customer with service. SDCL Chapter 49-34A. Under SDCL 49-34A-42, the Legislature allotted each utility an exclusive right to provide service to all new and existing customers within its assigned territory. North Central Farmers Elevator decided to build a new facility in Bow-dle, South Dakota. Montana-Dakota Utilities Company (MDU) and FEM Electric Association (FEM) both furnish power to customers in the vicinity, but FEM is statutorily assigned to provide power in the territory where the Bowdle facility would be built. North Central entered into discussions with both MDU and FEM to decide whether it would receive service from the incumbent provider, FEM, or seek permission from the PUC to use the outside provider, MDU. Ultimately, North Central executed a service agreement with FEM.

[¶ 3.] Disappointed with FEM’s choice, MDU brought a petition under SDCL 49-34A-56 seeking to have the PUC assign MDU as the provider for power to the Bowdle . facility. Despite the fact that FEM had exclusivity in serving the new facility, MDU asserted in its petition that “regardless of customer preference, MDU is the best suited to provide electric service to North Central under a service contract pursuant to the criteria established by SDCL 49-34A-56[.]” In particular, MDU averred that the Bowdle facility is a large load customer and MDU “is fully able to provide the electrical service requirements of the load to be served.” It also alleged that it had an adequate power supply available and would expend fewer dollars than FEM to provide service. According to MDU, it would need only one half mile of additional line, while FEM’s line would have to extend for four miles.

[¶ 4.] FEM, North Central, and the South Dakota Rural Electric Association successfully petitioned to intervene. North Central asserted that MDU’s petition was improperly brought because, among other things, it was North Central’s preference that FEM provide service. Correlatively, FEM argued that the new Bowdle facility is within its exclusive territory, and it was willing and able to furnish adequate services, and therefore, it should be the provider.

[¶ 5.] FEM moved for summary disposition, alleging that MDU did not have standing to bring a petition under SDCL 49-34A-56. The PUC granted summary disposition concluding that (1) because the Bowdle facility would be located in FEM’s service territory, FEM had the exclusive right to provide service; and (2) MDU is not a customer, and therefore, it did not have standing under SDCL 49-34A-56 to bring a petition. The circuit court upheld the PUC’s decision. MDU now appeals to this Court. The question hinges purely on statutory interpretation: did the Legislature intend to open the competition between utilities for “large load” customers, or did it intend to grant exclusive territories for utilities except when customers seek an outside provider.

Standard of Review

[¶ 6.] We review agency decisions the same as the circuit court; there is no presumption that the circuit court’s decision was correct. U.S. West Communications, Inc. v. Public Util. Comm’n, 505 N.W.2d 115, 122-23 (S.D.1993) (citing Northwestern Bell v. Public Util. Comm’n, 467 N.W.2d 468, 469 (S.D.1991)). Neither do we defer “to the interpretation of the trial court, nor to the agency’s conclusions of law.” Id. Questions of statutory interpretation are reviewed de novo. Aspen Storage, Inc. v. Flanagan, 2007 SD 66, ¶ 9, 737 N.W.2d 277, 280 (citing Town Square Ltd. P’ship v. Clay County Bd. of Equalization, 2005 SD 99, ¶ 9 n. 1, 704 N.W.2d 896, 899 n. 1 (citing Fall River County v. S.D. Dep’t of Rev., 1999 SD 139, ¶15, 601 N.W.2d 816, 821 (citations omitted))).

Analysis and Decision

[¶ 7.] In 1975,- our Legislature adopted the “South Dakota Territorial Act.” This Act gave the PUC the power to establish zones in which utilities would be assigned exclusively to provide service to all new and existing customers in their respective territories. In the case of In the Matter of Establishing Certain Territorial Elec. Boundaries (Mitchell Area), 281 N.W.2d 65, 70 (S.D.1979), we acknowledged that the Act was adopted to avoid duplication of facilities and wasteful spending. Although the Act gave, utilities exclusive service areas, it also established limited exceptions whereby a customer might obtain service from an alternative provider. SDCL 49-34A-58; SDCL 49-34A-55; SDCL 49-34A-56. See also In the Matter of Northwestern Public Service Co. (Hub City), 1997 SD 35, ¶ 16, 560 N.W.2d 925, 928. The exception implicated in this ease is found in SDCL 49-34A-56. It provides:

Notwithstanding the establishment of assigned service areas for electric utilities provided for in §§ 49-34A-43 and 49-34A-44, new customers at new locations which develop after March 21, 1975, ... and who require electric service with a contracted minimum demand of two thousand kilowatts or more shall not be obligated to take electric service from the electric utility having the assigned service area where the customer is located if, after notice and hearing, .the Public Utilities Commission so determines after consideration of the following factors:
(1) The electric service requirements of the load to be served;
(2) The availability of an adequate power supply;'
(3) The development or improvement of the electric system of the utility seeking to provide the electric service, including the economic factors relating thereto;
(4) The proximity of adequate facilities from which electric service of the type required may be delivered;
(5) The preference of the customer;
(6) Any and all pertinent factors affecting the ability of the utility to furnish adequate electric service to fulfill customers’ requirements.

Id.

[¶ 8.] According to MDU, SDCL 49-34A-56 should not be interpreted to allow only a customer to bring a petition for alternative service, as that would defeat the intent of the Act, which is to avoid duplicative and wasteful spending. This statute states that a customer “shall not be obligated to take service from” the assigned provider if the “Commission so determines after consideration” of six factors. SDCL 49-34A-56. One factor is customer preference. Id. MDU asserts that because one of the considerations is customer choice, the Legislature did not intend that the customer be the only one allowed to bring a petition. Instead, customer preference is simply a consideration. MDU relies on language from Willrodt v. Northivestem Public Service Co., where we stated that “[a]n individual has no organic, economic, or political right to service by a particular utility merely because he deems it advantageous to himself.” 281 N.W.2d 65, 72 (S.D.1979) (quoting Storey v. Mayo, 217 So.2d 304, 307-08 (Fla.1968)).

[¶ 9.] FEM agrees that the Act was adopted with the intent to avert wasteful spending. ,It contends, however, that a plain reading of SDCL 49-34A-56 demonstrates that only^ the customer has standing to bring a petition. Moreover, according to FEM, even though a customer does not have an “organic, economic or political right to service by a particular utility,” subject to some exceptions, a utility does have an “exclusive right” to provide service to a “future customer in its assigned service area.” See Willrodt, 281 N.W.2d at 72 (citation omitted); SDCL 49-34A-42. FEM believes that to allow “a competing electric service provider to petition the [PUC] under SDCL 49-34A-56 forces the customer to engage in a costly regulatory hearing process.” It would also, FEM argues, lead to competing providers trying to “cherry pick large customers in another electrical provider’s service area,” which would render SDCL 49-34A-42 meaningless.

[¶ 10.] “The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute.” Esling v. Krambeck, 2003 SD 59, ¶ 6, 663 N.W.2d 671, 675-76 (citation omitted). When interpreting a statute, we give plain meaning and effect to words and phrases. Hay v. Bd. of Comm’rs for Grant County, 2003 SD 117, ¶ 9, 670 N.W.2d 376, 379 (citing Esling, 2003 SD 59, ¶ 6, 663 N.W.2d at 676 (citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted))). We view the language of the statute as a- whole, “ ‘as well as enactments relating to the same subject.’” Moss, 1996 SD 76, ¶ 10, 551 N.W.2d at 17 (quoting U.S. West Communications, Inc., 505 N.W.2d at 122-23).

[¶ 11.] On careful examination of SDCL 49-34A-56, we interpret this statute to give only customers the right to bring a petition. -It is true that nothing in SDCL 49-34A-56 states that the customer is the sole party able to bring a petition. Written in the passive voice, the operative language of the statute leaves unsaid who in particular may bring a petition. Nonetheless, considering the statute’s language and the language of its accompanying sections in SDCL Chapter 49-34A, the legislative intent appears to allow only new large load customers at new locations the right to petition the PUC for relief from the obligation to receive service from the incumbent provider. It is the customer’s needs the statute seeks to accommodate: it expresses a concern, not about a provider’s interest in gaining business outside its territory, ■ but about a new customer not being “obligated” to accept the assigned provider. ■

[¶ 12.] Furthermore, in looking at the preceding section, SDCL 49-34A-55, we see the right of electric utilities to agree among themselves to change assigned service areas, subject to PUC approval, as supporting our reading that SDCL 49-34A-56 was not intended to allow open competition from outside providers for new large load customers. The purpose was to protect the public interest by “the elimination or avoidance of unnecessary duplication of facilities, [the provision of] adequate electric service to all areas and customers affected, and the promotion of the efficient and economical use and development of the electric systems.... ” See SDCL 49-34A-55. Our interpretation reaffirms this Court’s earlier statement in Hub City that “[t]he plain language of the .statute indicates the Legislature intended it to do nothing more than provide a new large load customer at a new location an option to be exercised prior to receipt of. service.” 1997 SD 35, ¶ 20, 560 N.W.2d at 928.

[¶ 13.] However, simply because the customer prefers an outside provider does not necessarily mean the customer’s preference will be granted. The PUC must consider the six statutory factors in SDCL 49-34A-56 before allowing an alternative utility to provide service in another utility’s assigned territory. While one factor is customer preference, that cannot be read to suggest that non-customers may also bring a petition. Rather, without this factor, the PUC might consider itself compelled to ignore a customer’s expressed desire when reviewing a petition.

[¶ 14.] SDCL 49-34A-56 was intended to make peace between competing utilities and protect a new large load customer from costly delays and time-consuming regulatory hearings when the customer prefers service from the local provider. It gives the customer the right to seek service from an outside competing utility, but it cannot be used to force the customer to accept service from an outside provider when the assigned provider is the customer’s choice.

[¶ 15.] Affirmed.

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

      . SDCL 49-34A-42 provides:
      Each electric utility has the exclusive right to provide electric service at retail at each and every location where it is serving a customer as of March 21, 1975, and to each and every present and future customer in its assigned service area. No electric utility shall render or extend electric service at retail within the assigned service area of another electric utility unless such other electric utility consents thereto in writing and the agreement is approved by the commission consistent with § 49-34A-55.

      . One exception, in SDCL 49-34A-55, allows providers to agree on the sale or exchange of service rights and distribution properties, subject to PUC approval. A different exception, found in SDCL 49-34A-58, allows the PUC to authorize another utility provider to furnish service to a customer when the assigned provider does not rectify its previously determined failure to provide adequate service. Here, MDU claims that SDCL 49-34A-56 grants it an exception.


author: PORTRA, Circuit Judge.

text:
    2007 SD 103
    Joan M. SAUDER, Employee and Appellant, v. PARKVIEW CARE CENTER, Bryant, South Dakota, Employer, and Travelers Insurance Companies and Berkley Administrators, Insurers and Appellees.
    No. 24505.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 27, 2007.
    Decided Oct. 17, 2007.

      N. Dean Nasser, Jr. of Nasser Law Offices Sioux Falls, South Dakota, Attorneys for employee and appellant.
    R. Alan Peterson of Lynn, Jackson, Shultz & Lebrun Sioux Falls, South Dakota, Attorneys for appellee Travelers Insurance.
    Timothy M. Engel of May, Adam, Gerdes & Thompson Pierre, South Dakota, Attorneys for appellee Berkley Administrators.
   PORTRA, Circuit Judge.

[¶ 1.] This case is an administrative appeal from the Sixth Judicial Circuit, Hughes County, the Honorable James W. Anderson, presiding. The plaintiff, Joan Sauder (Sauder), seeks an award of workers’ compensation benefits. The circuit court dismissed Sauder’s benefit claims against Parkview Care Center (Parkview or Employer), Travelers Insurance Companies (Travelers), and Berkley Administrators (Berkley) (collectively Respondents). We affirm in part and reverse in part.

BACKGROUND

[¶ 2.] Sauder worked for Parkview from 1983 to 2001 as the Social Service Director designee. Sauder did not have credentials as a social worker, but she was an advocate for the residents and was responsible for obtaining residents, admitting residents, and making sure that the needs of the residents were met. Sauder described her job as “a sedentary office and clerical worker with collateral administrative work duties.”

[¶ 3.] In September 1993 Sauder moved into a new office which had been created by partitioning off part of the chapel at Parkview. Prior to moving into this office, Sauder had no problems with asthma, seasonal allergies or breathing in general. About one month after Sauder moved into the office, she noticed the office started smelling musty and that the room was very warm. After some time in the office, Sauder began to complain of a stuffy head and headaches. In July 1994 Sauder was diagnosed with a serious sinus infection.

[¶ 4.] Sauder saw several health care providers for her respiratory problems, including the Mayo Clinic. In late 1994 or early 1995 Sauder noticed a black liquidy substance running down the walls of her office. She also noticed that she felt worse when she was at work compared to when she was away from work and started to associate her respiratory problems with the condition of her office. By November 1995 other staff members at Parkview were becoming ill, and Sauder was moved to á different work area.

[¶5.] In November 1995 Sauder completed a first report of injury. Sauder indicated that her respiratory problems were the result of mold and other exposures at work, beginning in September 1993. Travelers provided workers’ compensation insurance to Parkview from May 25, 1994, until May 25, 1995, while Berkley provided workers’ compensation insurance to Parkview from May 25, 1995, until April 27, 1996 . On January 19, 1996, Travelers sent a denial letter to Sauder, however, a copy of this letter was not sent to the Department of Labor (Department). On March 7, 1996, Berkley sent a denial letter to Sauder and the Department.

[¶ 6.] Sauder continued to see various physicians for her respiratory problems, includihg physicians at the ■ Mayo Clinic and Jewish Medical Center in Denver. She subsequently filed a notice of occupational disease on December 6, 2001, and a petition for hearing with the Department on September 16, 2002. Sauder alleged both an occupational pulmonary disease and a work-related pulmonary injury which caused disablement as of October 10, 2001. Sauder later filed an amended petition for hearing with the Department on June 23, 2003. ,

[¶ 7.] On January 31, 2005, the Department issued a letter decision granting summary judgment in favor of Berkley on Sauder’s claim for benefits based on an injury, holding that Sauder had failed to file her petition for hearing within two years of Berkley’s letter denying compens-ability as required by SDCL 62-7-35. Travelers’ motion for summary judgment was denied on the basis that Travelers’ denial letter was ineffective to start the statute of limitations period because a copy was not provided to the Department. The overall result of the 2005 letter decision was that Sauder could continue to pursue benefits from Travelers based on an injury theory and from both Travelers and Berk-ley on an occupational disease-theory.

[¶ 8.] On January 5, 2006, the Department issued another . letter decision granting summary judgment dismissing Sauder’s occupational disease claim in its entirety. The Department concluded that the mold exposure which Sauder claimed to have suffered and her resulting medical condition did not constitute an occupational disease under South Dakota law.

[¶ 9.] Sauder filed an appeal to the circuit court from both the 2005 letter decision and the 2006 letter decision. On April 12, 2006, upon agreement of the parties, the court entered an order for partial remand directing the Department to clarify and address certain matters. On October 4, 2006, the Department entered its order on remand reaffirming its 2005 and 2006 letter decisions.

[¶ 10.] Sauder then filed another appeal with the circuit court. This appeal was from the Department’s 2005 letter decision, 2006 letter decision, and order on remand. On March 29, 2007, the circuit court entered its order and judgment on appeal which reversed the Department’s ruling that denied Travelers’ motion for summary disposition on Sauder’s injury claim and affirming all other decisions in their entirety. The result of the order and judgment on appeal is that all of Sauder’s benefit claims have now been dismissed against Parkview, Travelers, and Berkley.

STANDARD OF REVIEW

[¶ 11.] In appeals from administrative agencies, “[o]ur standard of review is controlled by SDCL 1-26-37.” Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 15, 711 N.W.2d 244, 247 (quoting Kassube v. Dakota Logging, 2005 SD 102, ¶ 25, 705 N.W.2d 461, 465). “When a circuit court has reviewed an administrative agency’s decision, we review the agency’s decision unaided by any presumption that the circuit court’s decision was correct.” Meligan v. Dept. of Revenue and Regulation, 2006 SD 26, ¶ 13, 712 N.W.2d 12, 17 (quoting Kassube, 2005 SD 102, ¶ 25, 705 N.W.2d at 465). “The Department’s factual findings and credibility determinations are reviewed under a clearly erroneous standard.” Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247 (citations omitted). “Questions of law are reviewed de novo.” Id. at ¶ 16.

ISSUES AND ARGUMENTS

ISSUE ONE

[¶ 12.] Whether Sauder’s claims against Berkley and Travelers are barred by the statute of limitations.

[¶ 13.] Berkley and Travelers both contend that the statute of limitations has expired for Sauder’s claim and, therefore, her claim should be barred. SDCL 62-7-35 provides the applicable limitations period:

The right to compensation under this title shall be forever barred unless a written request for hearing pursuant to § 62-7-12 is filed by the claimant with the department within two years after the self-insurer or insurer notifies the claimant and the department, in writing, that it intends to deny coverage in whole or in part under this title. If the denial is in part, the bar shall only apply to such part.

Sauder argues, for a variety of reasons, that the denials by both Berkley and Travelers were ineffective to begin the running of the limitations period. We examine Sauder’s arguments as to each insurer separately.

A. Berkley

[¶ 14.] Sauder first contends that Berk-ley’s denial is ineffective because they were not the insurer on the risk, they did not have the legal ability to deny the claim for Travelers and they should have simply told Sauder that Travelers was the insurer on the risk and that she should seek compensation from them. We find these arguments to be without merit. Berkley never contended that they were acting for Travelers or denying the claim for Travelers. Berkley had the right to deny the claim for the time that they were on the risk.

[¶ 15.] Sauder also contends that Berk-ley’s denial was ineffective because it was filed outside the maximum number of days as allowed by SDCL 62-6-3. That statute provides:

The insurer shall file a copy of the report required by § 62-6-2 with the Department of Labor within ten days after receipt thereof.
The insurer or, if the employer is self-insured, the employer, shall make an investigation of the claim and shall notify the injured employee and the department, in writing, within twenty days from its receipt of the report, if it denies coverage in whole or in part. This period .may be extended not to exceed a total of thirty additional days by the department upon a proper showing that there is insufficient time to investigate the conditions surrounding the happening of the accident or the circumstances of coverage. If the insurer or self-insurer denies coverage in whole or in part, it shall state the reasons therefor and notify the claimant of the right to a hearing under § 62-7-12. The director of the Division of Insurance, or the secretary of labor if the employer is self-insured, may suspend, revoke, or refuse to renew the certificate of authority, or may suspend or revoke all certificates of authority granted under Title 58 to any company or employer which fails, refuses, or neglects to comply with thé provisions of this section. A company or employer which fails, refuses, or neglects to comply with the provisions of this section is also subject to an administrative fine of one hundred dollars payable to the Department of Labor for each act of noncompliance, unless the company or employer had good cause for noncomplianee.

[¶ 16.] Sauder’s position is that because Berkley’s denial was filed outside the maximum limit of fifty days allowed by the statute, the denial was ineffective to start the running of the two year statute of limitations period. However, Berkley argues that the penalties provided for in SDCL 62-6-3 are the exclusive remedies for a violation of that statute, without effect on the statute of limitations, and therefore Sauder’s claim is time barred.

[¶ 17.] If the words and phrases in the statute have plain meaning and effect, [the court] should simply declare their meaning and not resort to statutory construction. In re West River Electric Assn., 2004 SD 11, ¶ 15, 675 N.W.2d 222, 226. From a plain reading of the statute, it is clear that the only penalties provided for an untimely denial are revocation of certificates of authority and/or a one hundred dollar fine. There is nothing in the statute indicating that tolling the statute of limitations is one of the penalties for filing outside of the allowable time frame. If Berkley failed to comply with the statute, then it is up to the director of the Division of Insurance to penalize them in a manner provided for by the legislature. Furthermore, following Sauder’s logic, if an insurer failed to file a timely denial, the statute of limitations would never begin to run thereby allowing a potential claim to drag on indefinitely. This is an absurd result and would be contrary to SDCL 62-7-35 wherein the legislature set forth the limitations period for a workers’ compensation claim and the events that trigger the running of that period.

[¶ 18.] Sauder’s final contention regarding Berkley’s denial is that it is ineffective as it was not sent by registered or certified mail as provided by SDCL 62-7-30, which states:

All notices or orders provided for in this chapter may be served personally or by registered or certified mail. When served by registered or certified mail, proof by affidavit thereof must be accompanied by post office return receipt. When, however, any party is represented by an attorney, such service must be made on such attorney, and may be made either in the manner provided , in this section, or in the manner provided by § 15-6-5.

[¶ 19.] However, Berkley contends that it substantially complied with the requirements of SDCL 62-7-30 and, therefore, the noticé was effective.

‘Substantial compliance’ with a statute means actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. Substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case.

Olson v. Equitable Life Assur. Co., 2004 SD 71, ¶ 30, 681 N.W.2d 471, 477 (quoting Myears v. Charles Mix Co., 1997 SD 89, ¶ 13, 566 N.W.2d 470, 474).

[¶ 20.] We first note that SDCL 62-7-30 provides that notices “may” be served personally or by registered or certified, mail, not that they “shall” be served in such a manner. Clearly, it-would have been just as easy for the legislature to use the latter word, but they chose not to. We presume the legislature means what it says. See Crescent Electric Supply Co. v. Nerison, 89 S.D. 203, 210, 232 N.W.2d 76, 80 (1975)(declaring our assumption “that statutes mean what they say and that legislators have said what they meant.”).

[¶ 21.] We also recognize that the primary purpose of SDCL 62-7-30, read in conjunction with SDCL 62-7-35, is to.ensure that the employee, and to a lesser extent the Department, receive notice of an insurer’s denial. In this case, Sauder and the Department received Berkley’s denial letter, thus fulfilling that purpose. The employer that proceeds without using registered or certified mail does so at its own risk in that it may not be able to show service of the denial. However, Sauder admits receiving notice by regular mail and has suffered no prejudice thereby. Therefore, we find that Berkley substantially complied with SDCL 62-7-30. We affirm the circuit court’s decision on this issue as to Berkley.

B. Travelers

[¶ 22.] In addition to the arguments set out above with regard to Berkley, Sauder also contends that Travelers’ denial did not start the statute of limitations running because the denial was not filed with the Department. Travelers argues that it has substantially complied with the statute because Sauder actually received notice.

[¶ 23.] SDCL 62-7-35, as set out above, constitutes the statute of limitations for worker’s compensation claims. Clearly, the statute provides that the limitations period does not begin to run until the claimant and the Department have been notified in writing of the denial. The statute is unambiguous regarding who needs to receive notice to begin the running of the limitations period.

[¶ 24.] Unlike Berkley, Travelers has not shown substantial compliance with the notice provisions. Whereas Berkeley did not comply with the form of the statutory notice requirement, Travelers did not comply with the substance of the requirement since it failed to provide notice to the Department at all. One of the purposes of the notice statute is for the Department to stay abreast of claims and denials, and that purpose was not achieved.

[¶ 25.] The circuit court minimized the importance of the notice to the Department, finding that the Department overestimated its own importance in the process because they would simply just file the notice away. However, in order to find substantial compliance, we must find compliance with every reasonable objective of the statute. It does not matter that notice to the claimant may be somewhat more important than notice to the Department because notice to the Department is one of the reasonable objectives of the statute. To hold otherwise would be to rewrite the statute for the legislature, which we will not do. See Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611. Therefore, we reverse the circuit court’s decision as to Travelers.

ISSUE TWO

[¶ 26.] Whether Respondents are es-topped from asserting the statute of limitations because their combined actions lulled Sauder into a false sense of security.

[¶27.] Sauder contends that acts of Parkview, Travelers, and Berkley combined to lull her into a false sense of security so that she did not file a petition for hearing until more than six years after her claim had been denied. Sauder contends that because of their actions, the Respondents should be estopped from asserting the statute of limitations as a defense to her claim.

[¶ 28.] Sauder’s contention is unsupported by the record. Sauder received denials from both Berkley and Travelers, and she testified at her deposition that she knew that she was on her own with her claim and that no one was going to help. There is no evidence to support her claim that anyone made intentional misrepresentations to her or in any way acted to mislead her. Accordingly, we affirm the circuit court on this issue.

ISSUE THREE

[¶ 29.] Whether Sauder’s condition constituted an occupational disease under SDCL 62-8-1(6)!

[¶ 30.] Sauder contends that her fungal sinusitis is an occupational disease as it arose as the result of a distinctive feature of the kind of work performed by her and others similarly employed. • Sauder claims that her occupation was unique and should be defined as an office worker confined to an unventilated, totally enclosed moist office room, rather than just an office worker. Respondents argue that Sauder’s occupation was that of a social worker or social worker designee and that her condition is not an occupational disease because her exposure to mold was not an ordinary and generally recognized risk of her occupation-. ■

[IT 31.] SDCL 62-8-1(6) defines “occupational disease” as a “disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment.” To be an occupational disease the injury must be caused by a distinctive feature of the claimant’s occupation, not by the environmental conditions of the claimant’s workplace. See Zoss v. United Bldg. Centers, Inc., 1997 SD 93, ¶ 12, 566 N.W.2d 840, 844. (overruled on other grounds). “Unless the condition is ‘intrinsic’ to an occupation, one does not suffer from an occupational disease.” Sauer v. Tiffany Laundry & Dry Cleaners, 2001 SD 24, ¶ 11, 622 N.W.2d 741, 744 (citing Zoss, 1997 SD 93, ¶ 14, 566 N.W.2d at 845).

[¶ 32.] Sauder’s condition arose because of an environmental condition of her workplace, that being the presence of mold, not by a distinctive feature of her occupation. Be her occupation social worker, social worker designee, or sedentary office worker, exposure to mold was not a distinctive feature of her occupation. The fact that many staff members of Park-view, all of various occupations, became ill only highlights the fact that her health problems were caused by the condition of her workplace and not by a distinctive feature of her occupation. We affirm the circuit court on this issue!

ISSUE FOUR

[¶ 33.] Whether the Department had authority and jurisdiction to issue its rulings.

[¶ 34.] Sauder claims that the Department exceeded its authority in this case because, as Sauder sees it, the Department was resolving a dispute between insurers that had little to do with her substantive rights.

[¶ 35.] The Department has statutory authority to hold hearings to decide whether claimants are entitled to workers’ compensation benefits. See SDCL 62-7-12, et. seq. In this case, they were doing exactly what they are given authority to do, which is deciding whether Sauder is entitled to workers’ compensation benefits. We affirm the circuit court on this issue.

CONCLUSION

[¶ 36.] We reverse the circuit court on Sauder’s injury claim against Travelers and remand to the Department for further proceedings consistent with this opinion. We affirm the circuit court on all other issues.

[¶ 37.] Affirmed in part and reversed in part.

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

[¶ 39.] PORTRA, Circuit Judge, for SABERS, Justice, disqualified.

      . Berkley is not an insurer. Rather, it is the third party administrator for Tri-State Insur-anee Company of Minnesota.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellee v. Kevin Kawanzel HARRIS, Appellant.
    No. 05-1521.
    Supreme Court of Iowa.
    Aug. 24, 2007.
    Rehearing Denied Sept. 27, 2007.

      Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Harold Denton, County Attorney, and Susan Nehring, Assistant County Attorney, for appellee.
   STREIT, Justice.

What does a suspect in custody need to do to invoke his right to an attorney? He just needs to ask for one. In the present case, the suspect repeatedly requested to speak with an attorney. Instead of ending the interrogation, the detective responded “You don’t trust us enough to do it without a lawyer?” We find Kevin Harris’s Fifth Amendment right to the presence of an attorney was violated when the detective continued to interrogate him after he invoked this right. Moreover, the detective violated Harris’s statutory right to contact a family member by refusing to allow Harris to call his brother. Both violations require suppression of Harris’s subsequent statements. It was error to deny Harris’s motion to suppress. This error was not harmless. We remand for a new trial.

I. Facts and Prior Proceedings.

On January 6, 2003, at approximately 1:00 a.m., a 1995 Lincoln Continental automobile parked on the side of a road in Cedar Rapids was set on fire. The Cedar Rapids Fire Department and Police Department responded. When the fire was extinguished, police and firefighters discovered Joseph Harris’s burned body inside the vehicle. He had three bullet wounds to the head. The authorities eventually assembled a case against Miguel Jones and Kevin Harris.

Jones was arrested for arson. Harris eluded police until August 23, 2004 when he was taken into custody after being arrested for failure to appear. He was also held on a material witness warrant in regard to the aforementioned homicide investigation. That morning, Cedar Rapids Police Detective Doug Larison questioned Harris about his role in Joseph’s death. Harris eventually admitted to witnessing Joseph’s murder. According to Harris, Jones pulled out a gun and killed Joseph while the three of them were in the Lincoln. Harris admitted pouring gasoline over the interior of the vehicle and Joseph’s body and lighting the gasoline with a cigarette lighter. He claimed he did so only because he feared Jones would kill him too.

After Harris’s confession, he was charged with arson in the second degree, a class C felony, in violation of Iowa Code sections 712.1 and 712.3 (2003) and obstruction of justice, an aggravated misdemeanor, in violation of Iowa Code section 719.3. Harris filed a motion to suppress his confession, arguing the detective violated his Miranda rights and his statutory right to speak with a family member. See Iowa Code § 804.20. The district court denied the motion. Harris waived his right to a jury and stipulated to a bench trial on the minutes of testimony. He was found guilty of both counts.

Harris appealed, arguing the district court erred by denying his motion to suppress. He claimed the detective violated his Miranda rights by continuing the interrogation after he requested an attorney. Moreover, Harris alleged the detective violated Iowa Code section 804.20 when he denied Harris’s requests to call his brother. According to Harris, both violations required his confession to be suppressed. The State argued the detective did not violate Miranda because Harris’s requests for an attorney were either (1) ambiguous, or (2) if unambiguous, Harris subsequently waived his right to have an attorney present by initiating further communication with the detective. The State conceded the detective violated Iowa Code section 804.20. However, it argued suppression of Harris’s statements was not the appropriate remedy. Alternatively, the State argued it was harmless error for the district court to admit Harris’s confession.

Harris’s appeal was transferred to the court of appeals, which affirmed the district court’s denial of his motion to suppress. On further review, we hold Harris’s Fifth Amendment right to have an attorney present during interrogation and his statutory right to contact a family member were violated. Harris’s motion to suppress should have been granted. We remand for a new trial.

II. Scope of Review.

We review constitutional claims de novo. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001). Our review of the district court’s interpretation of Iowa Code section 804.20 is for errors at law. State v. Moorehead, 699 N.W.2d 667, 671 (Iowa 2005).

III. Merits.

A. Miranda.

The Fifth Amendment of the United States Constitution guarantees “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” There is no similar provision in the Iowa Constitution but the Fourteenth Amendment extends the privilege against self-incrimination to state prosecutions. See Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492-93, 12 L.Ed.2d 653, 658 (1964).

In the landmark decision of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held “the privilege against self-incrimination is jeopardized” when an individual is subjected to custodial interrogation. Miranda, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297, 308 (1980). The Court in Miranda determined an individual in custody

must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Miranda, 384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726; see also Dickerson v. United States, 530 U.S. 428, 444, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405, 420 (2000) (holding that because Miranda was a constitutional decision, it cannot be overruled by an act of Congress).

The Court in Miranda dictated the subsequent procedure police must follow if an individual invokes his Fifth Amendment privilege:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28, 16 L.Ed.2d at 723.

Absent a recitation of the Miranda warnings and a valid waiver of the right to remain silent and the right to the presence of an attorney, any statement made by an individual in response to custodial interrogation is inadmissible. Id. at 476, 86 S.Ct. at 1629, 16 L.Ed.2d at 725; see Innis, 446 U.S. at 299-300, 100 S.Ct. at 1689, 64 L.Ed.2d at 307 (holding voluntary declarations made while in custody, whether or not the Miranda warnings have been given, are admissible if they are not made in response to police questioning). The State has the burden to prove the individual “knowingly and intelligently waived” these privileges. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724; see Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362, 373 (1994) (referring to a “knowing and voluntary waiver of the Miranda rights”); State v. Lamp, 322 N.W.2d 48, 54 (Iowa 1982) (stating a waiver “must consist of some affirmative conduct indicative of voluntary, intentional, and knowing relinquishment of the right to counsel; waiver cannot be presumed from inaction or mere silence”), overruled on other grounds by State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000).

“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378, 386 (1981). In other words, “an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386 (emphasis added). “But even if a conversation ... is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405, 412 (1983). A valid waiver under these circumstances requires the individual to “evince[ ] a willingness and a desire for a generalized discussion about the investigation.” Id. at 1045-46, 103 S.Ct. at 2835, 77 L.Ed.2d at 412.

With these principles in mind, we turn to the facts of this case. It is undisputed Harris was subjected to custodial interrogation on August 23, 2004. At approximately 8:49 that morning, the detective began questioning Harris about the arson and homicide. The interrogation was videotaped. Prior to any questioning, Detective Larison read Harris the Miranda warning. Harris verbally agreed to answer questions without counsel present, but he declined to provide a written waiver of his Miranda rights.

At 9:50 a.m., after being questioned for approximately one hour about the night of the murder, Harris said, “If I need a lawyer, tell me now.” The detective responded, “That’s completely up to you” and continued the interrogation. Harris’s statement was not sufficient to invoke his right to the presence of an attorney. See State v. Washburne, 574 N.W.2d 261, 267 (Iowa 1997) (asking whether counsel is needed is not sufficient to invoke right to counsel). Officers have no obligation to stop questioning an individual who makes an ambiguous or equivocal request for an attorney. Davis, 512 U.S. at 461-62, 114 S.Ct. at 2356, 129 L.Ed.2d at 373. Thus, the detective was permitted to continue questioning Harris after this exchange.

The detective told Harris his investigation had already revealed Harris was involved and encouraged Harris to tell his “side of the story.” Harris said he did not have a side of the story; he claimed to not know what the detective was talking about and said he did not like the detective’s “trick questions.” At 10 a.m., the detective asked again for Harris’s “side of the story.” Harris replied, “I don’t want to talk about it. We’re going to do it with a lawyer. That’s the way I got to go.” The detective said, “What do you mean?” Harris responded, “You got all these trick questions. I don’t understand.” The detective said, ‘You want to do it with a lawyer, is that what you’re saying?” Harris replied, “Yeah, because I don’t understand all these questions.”

Harris clearly and unequivocally requested an attorney at this point in the interrogation. The Supreme Court has said “a suspect need not ‘speak with the discrimination of an Oxford don.’ ” Id. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371 (quoting Justice Souter’s concurrence). Instead, he must make “his desire to have counsel present sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371.

At this juncture, Detective Larison properly stopped interrogating Harris. He asked Harris if he had a lawyer. Harris said, “No, but I can get one though.” The detective asked Harris if there was anyone in particular he wanted to represent him. Harris replied, “Uh, I don’t know. I got to find one. Get my people to find me one. And then we can get a lawyer and then you can get my story.” Harris told the detective “Dave Grinde” had previously represented him. The detective asked whether Harris wanted him to call Mr. Grinde. Harris replied, “Yeah, because these are trick questions. If you get my story out of me, I want my lawyer to be there.”

Harris could not have been more clear — he wanted an attorney present during police questioning. The detective was obligated to stop questioning Harris regarding the arson and homicide. Miranda, 384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723. Instead, the detective continued the conversation by asking ‘You don’t trust us enough to do it without a lawyer?” The State claims this question was a “rhetorical question” or “a mere observation.” We do not find this question so innocent. A police officer may not “cajole[]” a defendant into waiving his Fifth Amendment rights. Miranda, 384 U.S. at 476, 86 S.Ct. at 1629, 16 L.Ed.2d at 725. While it is good police practice to clarify an ambiguous request, it is not appropriate to ask a suspect to justify his unequivocal decision to have an attorney present.

By asking ‘You don’t trust us enough to do it without a lawyer?” the detective deftly and subtly kept Harris talking. Shortly thereafter, the detective resumed his interrogation. He said, “And you want to get this behind you.” Harris replied, “Hell yeah.” The detective said, “And get it out on the table. Tell us what really happened.” Harris responded, “Yup, because I ain’t got time for this, man.” The detective then asked, “Because you’re thinking what we’re hearing isn’t the accurate truth?” This dialogue, initiated by the detective was impermissible because it was “reasonably likely to elicit an incriminating response.” Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90, 64 L.Ed.2d at 308. In Edwards, the Supreme Court held once a suspect has invoked his Fifth Amendment right to an attorney, he shall not be subject to further interrogation unless he initiates further communication. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386; see Miranda, 384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723 (‘Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”)- Thus, Harris did not waive his previously invoked right to have an attorney present when he responded to the detective’s questions. See Edwards, 451 U.S. at 484, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386.

It was also improper for the detective to delay calling the attorney Harris requested by name as part of a strategy for interrogation. Detective Larison told Harris, “We also need to go through the county attorney because they’re the ones that make the final decision on who gets charged, who doesn’t get charged, who gets charged with what. They make the final decision on that, okay?” Harris replied, “Cool.” The detective asked, “And so would you like me to call them too and let them know you want to tell us exactly what happened with an attorney so that we can make some kind of arrangement? Because you said you don’t want to go to jail for this.” Harris responded, “No, not for nothing I didn’t do, man.” The detective said, “If I were to tell you we were only interested in the person who pulled the trigger.” Harris said, “Then I got you. I promise you that.”

At approximately 10:18 a.m., after a bathroom break, the detective said, “Let me call the county attorney and then we’re going to call your attorney, just like you wanted.” The detective left Harris in the interrogation room until approximately 11:37 a.m. when he returned with the county attorney’s offer of testimonial immunity. After hearing the offer, Harris said, “That’s bullshit, man. I need an attorney then. That’s bullshit.” Harris explained his involvement was forced because he was afraid of getting killed too. The detective explained the offer of testimonial immunity again. The detective said, “Understand, you don’t have to pull the trigger to be guilty of conspiracy to commit murder.” He continued, “You have asked for an attorney already so if you want to tell me what happened I have to make sure that you’ve changed your mind and you don’t need an attorney here.” Harris replied, “Man, fuck the attorney. I’m in the right as far as I’m concerned. I’m in the right.” The detective asked, “You’re confident about that?” Harris said, “I’m confident about that.” About ten minutes later, Harris acknowledged he was present when Jones shot Joseph and admitted to starting the fire.

The State argues Harris waived his right to have an attorney present with this exchange. However, it was inappropriate for the detective to continue questioning Harris and as part of that questioning to act as a conduit between the county attorney’s office and Harris, once Harris requested an attorney. Any “deal” should have been negotiated by the attorney Harris requested. There was no valid reason to continue questioning Harris after his request to speak with Mr. Grinde. If Mr. Grinde was unavailable, then Harris should have been returned to his jail cell. It appears the detective was hoping Harris would keep talking once he heard what the county attorney was willing to offer. That is exactly what happened. Miranda and its progeny make clear an interrogation must cease once the suspect requests an attorney. Because the detective continued to interrogate Harris after he asked to speak to an attorney, there was no valid waiver. See Edwards, 451 U.S. at 484, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386. Consequently, Harris’s statements made after he unambiguously asked for an attorney should have been suppressed. It was error to deny Harris’s motion to suppress.

B. Statutory Right to Contact a Family Member.

Harris also argues his statutory right to contact a family member was violated. Iowa Code section 804.20 provides:

Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both.... A violation of this section shall constitute a simple misdemeanor.

Iowa Code § 804.20. We have previously held section 804.20 does not require a police officer to inform an individual in custody of his right to contact counsel or a family member. State v. Stroud, 314 N.W.2d 437, 439 (Iowa 1982). “An officer may not, however, tell a defendant he does not have such a right, and once the right is invoked the officer must give the defendant the opportunity to call or consult with a family member or attorney.” Moorehead, 699 N.W.2d at 671 (citing State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978)).

In the present case, Harris asked to call his brother about the same time he began asking for an attorney. He said, “Yeah, I want to talk to a lawyer. I want to talk to a lawyer and then I want to talk to my brother.” The detective said he first needed to call the county attorney to see if they could “make some kind of arrangement.” Harris replied, “I know you got to do that. So, this is all I’m going to ask- — -to talk to the lawyer, then talk to my brother.” After the detective accompanied Harris to the bathroom, he escorted Harris back to the interrogation room where Harris was left alone for approximately an hour and twenty minutes. At one point, the detective checked on Harris and told him he was waiting to hear back from the county attorney. Harris asked to use the phone. The detective replied, “Not right now. The first thing I want to do is get something from the county attorney.”

On appeal, the State concedes the detective violated Harris’s statutory right to contact a family member. Thus, we are left to determine the appropriate remedy.

We filed our opinion in Moorehead approximately two months before the district court conducted a hearing on Harris’s motion to suppress. In Moorehead, we held a statement obtained after an “ ‘unnecessary delay’ ” in allowing a defendant to contact a family member or attorney should be suppressed unless it was made spontaneously. Moorehead, 699 N.W.2d at 675 (quoting Iowa Code § 804.20). Prior to Moorehead, we had “never declared that a violation of section 804.20, which is not also a violation of Miranda, will in all instances require suppression of a resulting confession.” State v. Bowers, 661 N.W.2d 536, 541 (Iowa 2003).

The district court refused to apply Moorehead to the present case because the opinion had “not yet been released for publication” and “was released after the interrogation.... ” Instead, the court relied on case law, which was overruled in Moorehead, and ultimately concluded Harris’s statements made after he was denied permission to call his brother were admissible.

It was wrong to ignore Moorehead. Our opinions are binding on Iowa’s courts as soon as they are filed. Iowa Rule of Appellate Procedure 6.14(5)(b), which states “unpublished opinions shall not constitute controlling legal authority,” is not applicable to our authored opinions because it defines “an ‘unpublished’ opinion [as] an opinion the text of which is not included or designated for inclusion in the National Reporter System.” (Emphasis added.) All of the supreme court’s opinions (with the exception of per curiam opinions) are published in the Northwest Reporter. See Iowa R.App. P. 6.25. Courts may not ignore our opinions pending Northwest Reporter citations. Under Moorehead, Harris’s statements made after he first requested permission to speak to his brother should have been suppressed because Harris was never given the opportunity to call his brother.

C. Harmless Error.

The district court should have granted Harris’s motion to suppress. The State argues it was harmless error to deny the motion. Most federal constitutional errors, including the erroneous admission of evidence in violation of a defendant’s Fifth Amendment rights, do not require reversal if the error is harmless. State v. Peterson, 663 N.W.2d 417, 430 (Iowa 2003). “To establish harmless error, the State must ‘prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Id. at 431. As for a nonconstitutional error, reversal is “required if it appears the complaining party has suffered a miscarriage of justice or his rights have been injuriously affected.” Moorehead, 699 N.W.2d at 672.

While there was certainly other evidence to support the verdict, the district court’s findings of fact relied heavily on Harris’s confession. We cannot say the confession had no affect on the verdict. Thus, a new trial is required.

IV. Conclusion.

Harris’s Fifth Amendment right to an attorney and his statutory right to contact a family member were violated. Both violations required suppression of the statements made by Harris after he requested an attorney and requested permission to call his brother. Thus, the district court erred by not granting Harris’s motion to suppress. This error was not harmless. We order a new trial.

DECISION OF THE COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

      . Harris's motion to suppress was filed more than forty days after his arraignment. We agree with the district court there was good cause to accept the late filing of the motion because newly appointed counsel needed time to receive and review the nearly four hours of videotape. See Iowa R.Crim. P. 2.11(3), (4). Thus, error was preserved and we do not reach the issue of ineffective assistance of counsel.

      . Precedendo had not yet issued for Moore-head when the district court filed its suppression ruling in this case because a petition for rehearing, which was ultimately denied, was still pending. See Iowa R. App. P. 6.30 ("Unless otherwise ordered by the supreme court, no procedendo shall issue for 15 days after an opinion of the supreme court is filed, nor thereafter while a petition for rehearing, filed according to these rules, is pending.”) Although some courts hold opinions are not binding until procedendo has issued, we think the better rule is opinions are binding the day they are filed (unless we specifically provide a different effective date) and remain so until a petition for rehearing is granted. See Stoke v. Converse, 153 Iowa 274, 276, 133 N.W. 709, 710 (1911) ("the granting of a rehearing has the effect to withdraw the opinion previously filed ....”); Pitkin v. Peet, 96 Iowa 748, 751, 64 N.W. 793, 795 (1895) ("when the rehearing was ordered, that opinion was suspended ...."). To hold otherwise would allow merit-less petitions for rehearing to delay the prece-dential effect of our decisions. It would also elevate the importance of a procedendo when “[t]he entire purpose of a procedendo is to notify the lower court that the case is transferred back to that court.” In re M.T., 714 N.W.2d 278, 282 (Iowa 2006).

      . Harris and Jones were pulled over in a Jeep for speeding minutes after the Lincoln Continental was set on fire. Harris, who was in the front passenger seat, was wearing a white t-shirt with reddish-brown discoloration on the chest area. The ends of his hair appeared to be singed. Harris was allowed to leave the scene. While the officer was preparing traffic tickets for Jones, he heard over dispatch an attempt to locate a vehicle matching the Jeep's description. As a result, the officer continued to detain Jones and the Jeep. The owner of the Jeep soon arrived at the traffic stop. He told the officers that Harris had called him and instructed him to remove a coat and some keys from the Jeep. He was not allowed to do so. An eye witness was brought to the scene and identified the Jeep as the vehicle he saw leaving the fire. Police executed a search warrant on the Jeep and found a gasoline can in the back of the Jeep. A burned nylon parka was on top of the gasoline can. Officers found a set of keys belonging to the Lincoln. Harris's fingerprint was found on the rear hatch of the Jeep near where the gasoline can was located. The owner of the Jeep later told officers he saw Jones and Harris place the gasoline can into the Jeep on the evening of January 5, 2003.