author: ROSS, Judge.

text:
    In the Matter of the WELFARE OF J.C.P., JR.
    No. A05-1294.
    Court of Appeals of Minnesota.
    July 3, 2006.

      Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Shakopee, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Michelle A. Dietrich, Redwood County Attorney, Redwood Falls, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; WRIGHT, Judge; and ROSS, Judge.
   OPINION

ROSS, Judge.

In this appeal from an adult-certification order, appellant J.C.P. argues that because adult certification exposes a juvenile to a potentially greater sentence if convicted, he has a Sixth Amendment right to a jury determination of any fact supporting that certification under Blakely v. Washington. Because the constitutional protections available in the juvenile system arise from the Due Process Clause of the Fourteenth Amendment and not from the Sixth Amendment, and because adult certification is a pretrial jurisdictional determination, a juvenile does not have a Sixth Amendment right to a jury determination of facts supporting adult certification. We affirm.

FACTS

Appellant J.C.P., Jr., is a juvenile who was indicted on three counts of first-degree murder for an incident in which he allegedly participated in the killing of his uncle. According to the record available to us, the state alleges the following facts: J.C.P. attended and consumed alcohol at a party in Morton, Minnesota, in the late night and early morning hours of September 23 and 24, 2004. J.C.P. argued with his uncle at the party and became enraged. With the assistance of his friend, J.C.P. beat his uncle so violently that his uncle’s blood spattered the walls nearly to the ceiling. Again with the assistance of others, J.C.P. continued to beat and kick his uncle even after his uncle became unconscious. J.C.P. left his unconscious uncle at the party, but he returned with friends with the intent to kill him. J.C.P. took his uncle’s keys, wrapped him in a blanket, loaded him into his uncle’s vehicle, and drove him to the Lower Sioux reservation where J.C.P. stabbed him 15 times. J.C.P. and his friends dumped the beaten, stabbed, dead uncle’s body into the Minnesota River. They then set the uncle’s vehicle ablaze. J.C.P. left the state, and police eventually arrested him in October 2004. Authorities initially charged J.C.P. by juvenile delinquency petition. The state later filed a motion for certification to prosecute J.C.P. as an adult. J.C.P. challenged the state’s motion and argued that under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), he is entitled to a jury determination of the facts supporting adult certification.

After a certification study and hearing, the juvenile court granted the state’s motion and ordered certification. The juvenile court rejected J.C.P.’s Blakely argument and denied his request for a jury determination of the facts supporting certification. The juvenile court stayed the prosecution proceedings pending J.C.P.’s appeal of the adult-certification order. This appeal follows.

ISSUE

Does a juvenile have a Sixth Amendment right to a jury determination of the facts supporting adult certification?

ANALYSIS

J.C.P. argues that he has a Sixth Amendment right under Blakely to have a jury determine the facts supporting adult certification and that the statute permitting the district court to certify a juvenile as an adult based on clear and convincing evidence is therefore unconstitutional. The application of Blakely presents a constitutional issue, which we review de novo. State v. Hagen, 690 N.W.2d 155, 157 (Minn.App.2004). We also review the constitutionality of a statute de novo. State v. Benniefield, 678 N.W.2d 42, 45 (Minn.2004). An appellant claiming that a statute is unconstitutional must show that the statute is unconstitutional beyond a reasonable doubt. Id.

The certification scheme that J.C.P. challenges is established by statute. When a juvenile who is at least 14 years old is alleged to have committed an offense that would be a felony if committed by an adult, the juvenile court may certify “the proceeding for action under the laws and court procedures controlling adult criminal violations.” Minn.Stat. § 260B.125, subd. 1 (2004). There is a rebuttable presumption that a proceeding will be certified if the juvenile is 16 or 17 years old and the alleged crime has a presumptive sentence of imprisonment. Minn.Stat. § 260B.125, subd. 3 (2004). When presumptive certification does not apply, the juvenile court may order certification if the “the prosecuting authority has demonstrated by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety.” Minn.Stat. § 260B.125, subd. 2(6)(ii) (2004). J.C.P. does not challenge the juvenile court’s determination that certification is appropriate or argue that the other provisions of the adult-certification statute are unconstitutional. The only issue J.C.P. raises on appeal is whether the nonpresumptive adult-certification statute violates his Sixth Amendment rights as described in Blakely.

A criminal defendant has a Sixth Amendment right to have a jury find any fact beyond a reasonable doubt, except that of a prior conviction, that increases a sentence beyond the statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). In Blakely v. Washington, the United States Supreme Court applied Ap-prendi to Washington state’s sentencing scheme and held that the statutory maximum sentence is the presumptive sentence established by the state sentencing guidelines, rather than the absolute maximum sentence permitted by statute. 542 U.S. 296, 303-04, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004). Therefore, the greatest sentence a judge can order is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id.; see also State v. Shattuck, 704 N.W.2d 131, 133 (Minn.2005) (applying Blakely to the Minnesota Sentencing Guidelines). Whether Blakely applies to the adult-certification proceeding challenged here depends on the nature of the constitutional rights afforded to juveniles in juvenile-court proceedings.

The juvenile-court system is a product of legislative enactment. See Minn.Stat. § 260B.101, subd. 1 (2004) (providing that “the juvenile court has original and exclusive jurisdiction in proceedings concerning any child who is alleged to be delinquent”); State v. Dehler, 257 Minn. 549, 554-55, 102 N.W.2d 696, 701 (1960) (noting that the Juvenile Court Act requires “that a juvenile be brought before the juvenile court and that certain proceedings take place in that court before the district court can acquire jurisdiction”). The legislature created the juvenile-court system “to provide a distinctive procedure and setting to deal with the problems of youth.” Welfare of Raino v. State, 255 N.W.2d 398, 399 (Minn.1977). Because the juvenile-court system is established to balance the needs of the juvenile offender and of society rather than to adjudicate criminal conduct, proceedings in juvenile court have historically been designated civil rather than criminal. Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84 (1966). Although Justice Blackmun complained that “[l]ittle ... is to be gained by any attempt simplistically to call the juvenile court proceeding either ‘civil’ or ‘criminal,’ ” McKeiver v. Pennsylvania, 403 U.S. 528, 541, 91 S.Ct. 1976, 1984, 29 L.Ed.2d 647 (1971) (plurality opinion), the rights afforded to a juvenile facing an adjudication of delinquency" are rooted in the Due Process Clause only and not in the Sixth Amendment. See In re Gault, 387 U.S. 1, 30-31, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368 (1970).

Juvenile-court proceedings must “satisfy the basic requirements of due process and fairness.” Kent, 383 U.S at 553, 86 S.Ct. at 1053. The applicable due-process standard appellate courts use when reviewing juvenile-court procedures is “fundamental fairness.” McKeiver, 403 U.S. at 543, 91 S.Ct. at 1985. Certain constitutional rights otherwise unavailable to those not facing criminal charges have been granted through the Due Process Clause to juveniles facing delinquency adjudications. For example, a juvenile whose liberty is at stake is guaranteed the right to counsel and to confrontation and cross-examination. Gault, 387 U.S. at 39, 87 S.Ct. at 1449. Juveniles have the right to receive written notice of the specific charges and factual allegations and may assert the right against self-incrimination. Id. at 33, 55, 87 S.Ct. at 1446, 1458. A juvenile also has a due-process right to be adjudicated delinquent only upon proof beyond a reasonable doubt. Winship, 397 U.S. at 368, 90 S.Ct. at 1075.

But fundamental fairness under the Due Process Clause does not guarantee juveniles every right criminal defendants enjoy, such as the right to a jury trial. McKeiver, 403 U.S. at 545, 91 S.Ct. at 1986; In re Welfare of C.D.N., 559 N.W.2d 431, 434 (Minn.App.1997), review denied (Minn. May 20, 1997). Fundamental fairness under the Due Process Clause does require that a juvenile court grant a hearing before waiving its jurisdiction and certifying a juvenile for prosecution as an adult. Kent, 383 U.S. at 552-54, 86 S.Ct. at 1052-54; State v. Behl, 564 N.W.2d 560, 567 (Minn.1997). Fundamental fairness also entitles a juvenile to the effective assistance of counsel at the certification hearing and to an explanation by the juvenile court of the basis for adult certification. Kent, 383 U.S. at 561, 86 S.Ct. at 1057. Fundamental fairness, however, does not require that a jury determine the facts supporting certification. See id. at 555-57, 86 S.Ct. at 1054-55.

J.C.P. argues that in addition to the rights guaranteed under the Due Process Clause, Blakely entitles a juvenile to a jury determination of the facts supporting certification because certification exposes a juvenile to a sentence potentially more severe than the consequences he might face if adjudicated delinquent in juvenile court. But Blakely’s requirement that a jury determine any fact that increases a sentence beyond the statutory maximum is rooted in a criminal defendant’s Sixth Amendment right to have a jury determine guilt beyond a reasonable doubt. Blakely, 542 U.S. at 305, 124 S.Ct. at 2538; see also State v. Hinton, 702 N.W.2d 278, 282 (Minn.App.2005) (“The United States Supreme Court recently renewed its commitment to the Sixth Amendment right of a defendant to have the prosecutor prove to the jury all facts legally essential to the punishment.”) (quotation omitted), review denied (Minn. Oct. 26, 2005). Despite that rights in juvenile proceedings have largely been borrowed from the Sixth Amendment’s protections afforded to defendants in “all criminal prosecutions,” rights guaranteed by the Sixth Amendment are not automatically transferable to proceedings in juvenile court. Because the constitutional guarantees afforded juveniles at certification and adjudication proceedings are based only on the Due Process Clause and its requirement for fundamental fairness, Blakely does not apply here.

Also, Blakely focuses on a materially different stage of prosecution, well after the district court’s jurisdiction over the matter has been exercised, limiting the district court’s ability to impose sentences that exceed the presumptive sentence or statutory maximum absent a jury finding regarding the sentence. Blakely, 542 U.S. at 303-04, 124 S.Ct. at 2537. By contrast, an order of certification is a pretrial determination that transfers jurisdiction from the juvenile court to the district court. See Minn.Stat. § 260B.125, subd. 1; In re Welfare of L.J.S., 539 N.W.2d 408, 413 (Minn.App.1995) (noting that certification is a pretrial procedure that determines which court will try the juvenile) review denied (Minn. Jan. 25, 1996). Once the juvenile court orders certification, the juvenile now subject to the jurisdiction of the district court has not yet been found guilty and no sentence is pending. A juvenile prosecuted for a crime as an adult in district court is then entitled to all the safeguards and guarantees afforded criminal defendants by the Constitution. See Behl, 564 N.W.2d at 566 (citing Gault, 387 U.S. at 29, 87 S.Ct. at 1444-45). The pretrial, jurisdictional nature of certification therefore also renders Blakely inapposite.

Other courts have likewise concluded that adult certification proceedings are jurisdictional in nature, not sentence-related proceedings to which Blakely would apply. See State v. Kalmakoff, 122 P.3d 224, 227 (Alaska Ct.App.2005) (surveying caselaw from other jurisdictions and holding that Blakely does not apply to juvenile-jurisdiction hearings); State v. Rodriguez, 205 Ariz. 392, 71 P.3d 919, 927-28 (2003) (holding that a juvenile-transfer statute “is not a sentence enhancement scheme and, therefore, does not implicate Apprendi ... [because it] does not subject [a] juvenile to enhanced punishment; it subjects the juvenile to the adult criminal justice system”); State v. Jones, 273 Kan. 756, 47 P.3d 783, 797-98 (2002) (holding that Ap-prendi does not apply to juvenile transfer hearings because they only determine “which system will be appropriate for a juvenile offender”), cert, denied 537 U.S. 980, 123 S.Ct. 444, 154 L.Ed.2d 341 (2002); see also United States -v. Juvenile, 228 F.3d 987, 990 (9th Cir.2000) (holding that juvenile transfer “merely establishes a basis for district court jurisdiction”). Only Massachusetts has held that juveniles have a right to a jury determination of the facts supporting the imposition of an adult sentence. Commonwealth v. Quincy Q., 434 Mass. 859, 753 N.E.2d 781, 789 (2001). Under Massachusetts law, a court may impose an adult sentence if a juvenile is found to be a “youthful offender.” Id. at 788. But the “youthful offender” designation does not determine jurisdiction; it is a procedure that “authorizes judges to increase the punishment for juveniles convicted of certain offenses beyond the statutory maximum otherwise permitted for juveniles.” Id. at 789. Because Minnesota’s adult-certification procedure determines jurisdiction and is not a sentence-enhancement scheme, we conclude that Quincy Q. is inapposite.

The state’s juvenile system is designed primarily to protect accused juveniles from criminal prosecution and to rehabilitate them. The state may not remove a juvenile from that protection except by due process. Inasmuch as the adult certification procedure is the method to expel a juvenile from the juvenile system’s protection and is not in itself a criminal prosecution, the Sixth Amendment has no direct bearing on it. We conclude that a juvenile facing adult certification does not have a Sixth Amendment right to a jury determination of the facts supporting certification. Blakely therefore does not render the adult-certification statute unconstitutional.

DECISION

Because the source of the protections afforded juveniles in juvenile delinquency proceedings is the Due Process Clause and not the Sixth Amendment, and because adult certification is a pretrial jurisdictional determination that does not result in an adjudication or a sentence, a juvenile does not have a Sixth Amendment right under Blakely to a jury determination of the facts supporting certification.

Affirmed.

      . The Raino court went on to add, “in recent years the courts have made applicable in juvenile proceedings constitutional guarantees associated with the traditional prosecutions.” Id.


source: Caselaw Access Project

author: ZINTER, Justice. SABERS, Justice

license: Public Domain

text:
    2006 SD 48
    Mary C. LOWE, Plaintiff and Appellant, v. Karl M. SCHWARTZ, Defendant and Appellee.
    No. 23749.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2006.
    Decided June 7, 2006.
    Clark J. Bormann of Bormann & Myer-chin, LLP, Bismarck, North Dakota, Attorneys for plaintiff and appellant.
    Karl M. Schwartz, Sikeston, Missouri, Pro Se appellee.
   ZINTER, Justice.

[¶ 1.] Mary C. Lowe failed to appeal from a final judgment and decree of divorce. Instead, she moved to vacate and modify the judgment under SDCL 15 — 6— 60(b). The trial court denied the motion. We affirm.

Facts and Procedural History

[¶ 2.] Lowe and Karl M. Schwartz were married on August 23, 1997. At the time of the marriage, Lowe was a business consultant, and Schwartz was a member of the Coast Guard. Their 1997 federal income tax return reported that Lowe made $101,093 and that Schwartz had wages of $28,019.

[¶ 3.] In April 1998, approximately seven months after the marriage, Schwartz retired from the Coast Guard and began to receive monthly retirement benefits. After Schwartz’s retirement, Lowe’s income paid the vast majority of the household expenses. However, in June 2000, Lowe suffered a heart attack and was diagnosed with arteriosclerotic cardiovascular disease. Because of the stress of her job, Lowe was unable to continue working as a business consultant earning a substantial income.

[¶ 4.] Prior to Lowe’s diagnosis, the marital relationship had begun to deteriorate. Although Lowe and Schwartz attended counseling, they were unable to rehabilitate the marriage. In August 2003, Lowe filed for divorce alleging extreme cruelty and neglect.

[¶ 5.] At trial, it was established that after her illness, Lowe became self-employed, selling “beanie babies and beads” over the Internet. It was also established that during the course of the marriage Lowe’s net worth declined from $365,000 to $80,000. In comparison, Schwartz entered the marriage with virtually no assets and left the marriage with relatively little except his retirement. At the time of the divorce, he was earning between $2,200 and $2,500 per month as a truck driver. He was also receiving $1,359 per month from his Coast Guard retirement.

[¶ 6.] After considering the circumstances of the parties, the trial court granted the divorce on the grounds of extreme cruelty, divided the marital assets, and awarded Lowe alimony in the amount of $135 per month. The trial court requested that Lowe’s attorney prepare conforming findings of fact and conclusions of law. When Lowe’s attorney failed to prepare them, Schwartz’s attorney prepared proposed findings and conclusions. The trial court’s ultimate findings, conclusions, and judgment ordered that: 1) Lowe was entitled to alimony in the amount of $135 per month from Schwartz’s retirement benefit; 2) the $135 was to be used for Coast Guard survivor medical benefits (insurance); however, Schwartz was not entitled to any of the Coast Guard former spouse protection annuity; 3) Schwartz was to cooperate in completing the paperwork necessary to convert the Coast Guard “survivor benefit plan” to a “former spouse protection” plan for medical benefits only; 4) in the event Lowe was not eligible to receive the Coast Guard surviv- or medical benefits, Schwartz was not obligated to provide any alternative insurance or other monetary payment other than the $135; 5) Lowe was to satisfy a $4,300 judgment she had previously obtained against Schwartz; and 6) any of Schwartz’s property, that was subject to execution under the judgment was to be released.

[¶ 7.] Lowe did not object to the trial court’s findings of fact and conclusions of law, and she did not appeal the trial court’s final judgment. Instead, Lowe filed a motion to vacate and modify the judgment under SDCL 15 — 6—60(b). The trial court denied Lowe’s motion. Lowe appeals, raising the following issues:

1) Whether Lowe was entitled to relief from the judgment on the ground that the value of Schwartz’s retirement plan was not considered a marital asset.
2) Whether Lowe was entitled to relief from the judgment on the ground that there was insufficient evidence to support the trial court’s findings of fact and conclusions of law.

Analysis and Decision

[¶ 8.] “The decision to grant or deny a motion under SDCL 15 — 6—60(b) rests with the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion.” Walsh v. Larsen, 2005 SD 104, ¶ 6, 705 N.W.2d 638, 641 (quoting Porter v. Porter, 1996 SD 6, ¶ 4, 542 N.W.2d 448, 449 (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994))).

Rule 60(b)

[¶ 9.] Lowe’s motion alleges that Schwartz’s retirement plan was not considered a marital asset and that there was insufficient evidence to support some of the trial court’s findings of fact and conclusions of law. Before considering these underlying arguments, we must address the availability of Rule 60(b) relief. In considering the availability of Rule 60(b) relief, we note that each of Lowe’s underlying arguments could have been raised on a direct appeal. Lowe, however, did not appeal. Instead, she sought the “extraordinary remedy” of Rule 60(b) relief. See People ex rel. D.G., 2004 SD 54, ¶ 7, 679 N.W.2d 497, 500.

[¶ 10.] Rule 60(b), however, “is not a substitute for an appeal. It does not allow relitigation of issues that have been resolved by the judgment. Instead it refers to some change in conditions that makes continued enforcement inequitable.” Sjomeling v. Stuber, 2000 SD 103, ¶ 14, 615 N.W.2d 613, 616 (quoting 11 Charles A. Wright et al., Federal Practice and Procedure § 2863 (2d ed 1995)). See also United States v. Young, 806 F.2d 805, 806 (8thCir.1986) (“Rule 60(b) is not available as a substitute for appeal.”). Therefore, “[a]n appeal from a Rule 60(b) decision does not bring the original judgment up for review, but only the decision on the request for relief from the judgment under Rule 60(b).” Chester v. St. Louis Hous. Auth., 820 F.2d 259, 260 (8thCir.1987) (quoting Fox v. Brewer, 620 F.2d 177, 179-80 (8thCir.1980)).

[¶ 11.] Lowe’s motion was premised on SDCL 15-6-60(b)(l), which provides:

On 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 the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect[.]

The intent of this rule is to “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.” Action Carrier, Inc. v. United Nat’l Ins. Co., 2005 SD 57, ¶ 14, 697 N.W.2d 387, 391 (quoting Upper Plains Contracting Inc. v. Pepsi Americas, 2003 SD 3, ¶ 16, 656 N.W.2d 323, 328 (quoting Colton Lumber Co. v. Siemonsma, 2002 SD 116, ¶ 10, 651 N.W.2d 871, 874)). “The trial court should exercise its discretion liberally in accordance with legal and equitable principles so as to promote the ends of justice.” Elliott v. Cartwright, 1998 SD 53, ¶ 7, 580 N.W.2d 603, 604 (citations omitted).

[¶ 12.] However, unlike most Rule 60(b)(1) cases, this case was tried on the merits. In fact, the trial court entered the judgment only after both parties retained counsel, engaged in discovery, and completed a trial on the same issues raised in the motion. Therefore, this judgment was obtained after considering the facts. Thus, the necessity for a liberal exercise of discretion was diminished, making Lowe’s burden of establishing an abuse of discretion more difficult. As the Eighth Circuit Court of Appeals has observed “[tjhere is much more reason for liberality in reopening a judgment when the merits of the case never have been considered than there is when the judgment comes after a full trial on the merits.” MIF Realty L.P. v. Rochester Assocs., 92 F.3d 752, 756 (8thCir.1996) (citing 11 Charles A. Wright et al., Federal Practice and Procedure § 2857, at 257-58.

[¶ 13.] Furthermore, it must be emphasized that all of Lowe’s arguments with the trial court’s judgment arise from Lowe’s failure to prove her case or prevail on arguments that either were or could have been raised at trial. As a result, Lowe’s Rule 60(b) motion is seeking to correct alleged mistakes of the trial court that occurred during trial and that resulted in, from Lowe’s perspective, an unsatisfactory judgment. However, “relief will not be granted under Rule 60(b)(1) merely because a party is unhappy with the judgment.” 11 Charles Alan Wright, Arthur R. Miller <& Mary Kay Kane, Federal Practice and Procedure § 2858, at 276. Rather, under Rule 60(b)(1), Lowe “must make some showing of why [s]he was justified in failing to avoid mistake or inadvertence [at trial].” Id. at 276-77. We consider Lowe’s motion under this standard.

1) Vacation of a Final Judgment on the Allegation That a Retirement Plan Was Not Considered a Marital Asset

[¶ 14.] Lowe argues that the trial court mistakenly failed to consider Schwartz’s retirement plan as a marital asset in making its property award. However, the trial court did consider the retirement plan as a marital asset in dividing the property. On numerous occasions during trial, it was brought to the court’s attention that Schwartz was receiving $1,359 per month in retirement benefits. Furthermore, after hearing substantial evidence regarding Schwartz’s retirement plan, the court allowed the parties two weeks to provide the court with more information regarding the transferability of the retirement plan. Finally, the trial court actually awarded Lowe a portion of the benefits. The court indicated its award was approximately ten percent of the monthly benefit. Consequently, there was no mistake or neglect because the retirement plan was considered a marital asset and was apportioned between the parties even though the plan and its present value were not apportioned as Lowe now requests. Under the circumstances, Lowe has failed to demonstrate the mistake or excusable neglect necessary for Rule 60(b)(1) relief.

2) Vacation of a Final Judgment on the Allegation That the Trial Evidence was Insufficient to Support the Trial Court’s Findings of Fact and Conclusions of Law

[¶ 15.] Lowe also argues that there was insufficient evidence to support the trial court’s findings of fact and conclusions of law determining that: 1) Lowe should be denied survivor annuity benefits; 2) Lowe agreed to satisfying the money judgment she had against Schwartz if she received any property or alimony; and 3) Lowe agreed to release Schwartz’s property that was subject to execution under the judgment.

[¶ 16.] In analyzing this issue, it must be noted that Lowe did not object to these findings of fact and conclusions of law. Consequently, although Lowe had the opportunity to address the sufficiency of the evidence, she neglected to avail herself of the opportunity to bring her arguments to the court’s attention at trial. That failure precludes Rule 60(b) relief. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2858, at 279-80 (providing a collection of analogous cases that indicate relief has been denied based on an attorney’s omission in “failing to read a proposed settlement, losing track of time, or when the oversight was due to the ‘demands of being a busy lawyer’ ”) (citing In re Four Seasons Secs. Laws Litig., 502 F.2d 834 (10thCir.1974) (failing to read a proposed settlement); Lomas & Nettleton Co. v. Wiseley, 884 F.2d 965 (7thCir.1989) (losing track of time); Lepkowski v. U.S. Dep’t of Treasury, 804 F.2d 1310 (D.C.Cir.1986) (demands of busy lawyer)). “[C]ourts have[, however,] held that [a] party should not be deprived of the opportunity to present the merits of the claim because of a technical error or slight mistake by the party’s attorney.” Id. at 272-73. But, in this case, Lowe was not deprived of the opportunity to present the merits of her current claims. Moreover, she has not made any showing of justification or excuse for her trial counsel’s failure to submit proposed findings and conclusions or objections to Schwartz’s proposed findings. Having failed to object to the court’s findings at trial, and having made no showing of justification or excuse for this omission, Lowe’s collateral attack on the sufficiency of the evidence fails.

[¶ 17.] In sum, Lowe failed to exercise her opportunity to litigate and appeal the court’s division of the retirement plan and the sufficiency of the evidence. Furthermore, she has not demonstrated mistake or excusable neglect. Because Lowe failed to make the requisite Rule 60(b)(1) showing, the trial court correctly denied Lowe’s motion.

[¶ 18.] Affirmed.

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

[¶ 20.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 21.] If the majority opinion has its facts right, the trial court’s decision in this case is plain error and we should reverse and remand until it is done right.

1. Lowe’s net worth decreased from $865,000 to $80,000, a total of $285,000 after Schwartz’s retirement from the Coast Guard.
2. Her income went from $101,098 in 1997 to being self-employed, selling “beanie babies and beads” over the internet after her heart attack in June 2000.
3. The trial court awarded her the grand sum of $135 per month alimony even though Schwartz was earning at least $2,200 per month as a truck driver and collecting $1,359 per month from Coast Guard retirement, a total of $3,559 per month or $42,708 per year.
4. The $135 per month alimony was only 10 percent of Schwartz’s Coast Guard retirement and only S.79 percent of his total monthly income.

[¶ 22.] Maybe this result is the fault of Lowe’s trial attorney, as the majority opinion suggests, but the trial court’s decision is a total injustice, plain error, and an abuse of discretion and we should have no part of it except to reverse.

[¶ 23.] We should reverse and remand for the trial court to do it over until it is done right.

      . Lowe had Schwartz sign a promissory note for money she loaned him for a down payment on a motorcycle. On July 10, 2001, Lowe received a judgment against Schwartz for the entire amount of the note.

      . Two additional points need to be made. First, finding of fact twenty-two and conclusion of law six both provided that “[Schwartz] shall pay to [Lowe] permanent alimony in the sum of $135 per month from [Schwartz's] retired pay." (Emphasis added.) Consequently, at the hearing on Lowe’s motion to vacate the judgment, the trial court stated:
      The argument that's been made is that the [c]ourt didn't have the opportunity to consider the value of the retirement fund that was held by Mr. Schwartz, and that is — I understand the argument that’s being made, and I understand where it's coming from, but it's simply not correct.
      The [c]ourt had access to the information. I knew that Mr. Schwartz had a retirement stipend monthly in the amount of $1,359. It is true that it was not ever calculated out at the trial date like it has been done in this motion, where a person calculates out life expectancy and comes up with a total value amount for a lifetime of retirement income, and then reduces it to a present value; but the [c]ourt is certainly aware that that can be done. That wasn't necessary in this case. It wasn't presented by either party. Instead, what the [c]ourt had in its grasp and in the information provided to it was that Mr. Schwartz was receiving a retirement income of $1,359 per month.
      After considering all of the evidence and the arguments presented, including all of the assets that the parties had accumulated and brought into the marriage, the [c]ourt awarded Ms. [L]owe a 10 percent amount of that retirement, and that was $135.... I considered the value of his retirement benefit, and there is nothing that’s new being presented here today.
      Second, at trial, the court questioned counsel why the retirement plan was omitted from Schwartz’s financial statement stating: "When I look at his financial statement I don't see listed on assets his Coast Guard retirement.” Schwartz’s attorney responded with the argument that the retirement plan had little cash value:
      That’s because it's not worth anything to him cash value right now. He can't go take $10,000.00 out of it right now. He gets a monthly payment on that like social security. So that’s why it's not listed here.
      I can’t tell you his Coast Guard retirement is worth $80,000.00. If he dies tomorrow, it’s not worth anything. That's why we don't have that listed on assets, it's just a monthly payment he gets.
      Although this explanation would not, in and of itself, have been sufficient to exclude the retirement plan as a marital asset, this exchange clearly shows that Lowe and the court were aware of Schwartz's retirement plan and the fact that it was not listed on his financial statement. At this point, Lowe had the opportunity to object to the omission, argue that it was a marital asset subject to division, and present evidence regarding its present value based on life expectancy. Lowe, however, failed to pursue these matters at trial. And, on her Rule 60(b)(1) motion, she did not explain why she was justified in failing to do so. Therefore, she failed to establish mistake or excusable neglect even if the retirement plan had not been considered as a marital asset.

      . Lowe is represented by different counsel on appeal.


author: MEIERHENRY, Justice.

text:
    2006 SD 50
    STATE of South Dakota, Plaintiff and Appellant, v. Joseph A. LAFFERTY, Defendant and Appellee.
    No. 23772.
    Supreme Court of South Dakota.
    Argued on April 26, 2006.
    Decided June 14, 2006.

      Glenn A. Brenner, Pennington County State’s Attorney, Jennifer B. Utter, Deputy Pennington County State’s Attorney, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Paula D. Camp of Pennington County Public Defender’s Office, Rapid City, South Dakota, Attorneys for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] This case involves a claim of double jeopardy. After a jury acquitted Joseph Lafferty (Lafferty) of second-degree rape, the State of South Dakota charged him with third-degree rape. Both charges were based on the same alleged incident. The trial court concluded that the third-degree rape charge violated double jeopardy and dismissed the charge. The State appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] The charges against Lafferty arose from allegations by T.T., a fifteen year-old female, that Lafferty sexually penetrated her on March 15, 2004. On March 16, 2004, the State filed a complaint charging Lafferty with one count of second-degree rape in violation of SDCL 22-22-1(4) (victim unable to consent due to intoxication), and in the alternative, one count of third-degree rape in violation of SDCL 25-1-6 (incest). Subsequently, the State presented the case to a grand jury. The grand jury indicted Lafferty on the same charges, and the State dismissed the initial complaint. A few days before trial, the incest charge was dismissed. On December 21, 2004, a jury acquitted Lafferty of the remaining charge of second-degree rape under SDCL 22-22-1(4) (victim unable to consent due to intoxication).

[¶ 3.] On December 30, 2004, the State again indicted Lafferty, this time for third-degree rape under SDCL 22-22-1(5) (statutory rape). The indictment alleged that on March 15, 2004, Lafferty sexually penetrated T.T., a person “being ten (10) years of age, but less than sixteen (16) years of age, at the time of said act of penetration.” Lafferty moved to dismiss the charge. He argued that the December 30, 2004, indictment violated the United States Constitution and the South Dakota Constitution by putting his life in jeopardy twice for the same offense. The trial court agreed with Lafferty and dismissed the indictment. The State appeals and presents the following issue for our consideration:

ISSUE
Whether the trial court erred by dismissing a second charge against Lafferty for violation of SDCL 22-22-1(5) (third-degree statutory rape) brought subsequent to Lafferty’s acquittal on a charge for violation of SDCL 22-22-1(4) (second-degree rape — intoxication of victim) arising from the same alleged incident.

DECISION

[¶ 4.] The Fifth Amendment to the United States Constitution states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Similarly, the South Dakota Constitution states that “[n]o person shall ... be twice put in jeopardy for the same offense.” SD Const Art VI, § 9. These prohibitions against double jeopardy protect against multiple prosecutions for the same offense after acquittal, multiple prosecutions for the same offense after conviction, and multiple punishments for the same offense. State v. Weaver, 2002 SD 76, ¶ 11, 648 N.W.2d 355, 359. Violation of double jeopardy is a question of law. State v. Cates, 2001 SD 99, ¶ 6, 632 N.W.2d 28, 33.

[¶ 5.] This case presents us with an issue of a second prosecution after an acquittal. The State admits that both prosecutions of Lafferty involve the same conduct — the alleged sexual penetration of T.T. on March 15, 2004. The State argues, however, that double jeopardy is not implicated in this case because SDCL 22-22-1(4) (rape of an intoxicated victim) is a different offense from statutory rape under SDCL 22-22-1(5), and therefore constitutes a separate offense. If the two offenses are deemed separate, Lafferty has not been subjected to double jeopardy.

[¶ 6.] In order to determine whether the offenses are separate offenses, we first look to legislative intent. The United States Supreme Court has stated that “[wjhere the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature ... intended that each violation be a separate offense.” Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985) (emphasis added), quoted in Weaver, 2002 SD 76, ¶ 14, 648 N.W.2d at 361. Thus, “when the same act violates two statutory provisions, whether one act is punishable as separate offenses raises a question of legislative intent.” State v. Dillon, 2001 SD 97, ¶ 14, 632 N.W.2d 37, 43. The true intent of the Legislature is ascertained primarily from the language of the statute. State v. Bordeaux, 2006 SD 12, ¶ 8, 710 N.W.2d 169, 172. Therefore, we turn to the language of the rape statute, SDCL 22-22-1.

[¶ 7.] In its entirety, SDCL 22-22-1 provides:

Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:
(1) If the victim is less than ten years of age; or
(2) Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution; or
(3) If the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or
(4) If the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis; or
(5) If the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim; or
(6) If persons who are not legally married and who are within degrees of consanguinity within which marriages are by the laws of this state declared void pursuant to [SDCL] 25-1-6, which is also defined as incest; or
(7) If the victim is ten years of age but less than eighteen years of age and is the child of a spouse or former spouse of the perpetrator.
A violation of subdivision (1) of this section is rape in the first degree, which is a Class 1 felony. A violation of subdivision (2), (3), or (4) of this section is rape in the second degree, which is a Class 2 felony. A violation of subdivision (5), (6), or (7) of this section is rape in the third degree, which is a Class 3 felony. Notwithstanding [SDCL] 23A-42-2 a charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.

The language of the statute defines the crime of rape in seven different subsections. Each subsection is listed in the disjunctive; that is, each subsection is separated by the disjunctive word “or.” The Legislature’s use of the disjunctive indicates that rape is one offense which may be accomplished by seven different ways.

[¶ 8.] We have acknowledged the significance of the legislative use of the disjunctive in defining conduct which constitutes aggravated assault in SDCL 22-18-1.1. We considered that statute in State v. Baker, wherein a defendant was charged, convicted, and sentenced for two counts of aggravated assault, one for “[a]ttempt[ing] to cause, or knowingly causing], bodily injury to another with a dangerous weapon” under SDCL 28-18.1.1(2) and a second for “[a]ssault[ing] another with intent to commit bodily injury which results in serious bodily injury” under SDCL 22-18-1.1(4). 440 N.W.2d 284, 285 (S.D.1989). When considering a double jeopardy challenge under that statute, we determined “that SDCL 22-18-1.1 does not contain four separate offenses, but rather describes one violation that may be established in four different ways.” Id. at 293. We confirmed that conclusion in State v. Morato when we noted that Baker “holds that SDCL 22-18-1.1 describes one offense that may be established four different ways.” 2000 SD 149, ¶ 27, 619 N.W.2d 655, 663. Even more recently, in State v. Chavez, we noted

“SDCL 22-18-1.1 does not contain four separate offenses, but rather describes one violation that may be established in four different ways.... Each of the counts describes a different method of accomplishing the offense, but there was only one offense committed.... ”

2002 SD 84, ¶ 16, 649 N.W.2d 586, 593 (quoting Baker, 440 N.W.2d at 293)).

[¶ 9.] We reach the same conclusion here. The plain, unambiguous language of SDCL 22-22-1 defines rape as one of seven possible circumstances. The statute is devoid of language indicating a clear intent to define separate offenses. Consequently, the statutory language does not suggest that the Legislature intended to define seven separate and distinct offenses. Indeed, the language of the statute leads to the opposite conclusion. SDCL 22-22-1 defines one offense which may be accomplished in seven different ways.

[¶ 10.] The State urges us to rely solely on the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test states that “ ‘where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.’ ” Dillon, 2001 SD 97, ¶ 14, 632 N.W.2d at 43 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. 306). Because the charge of statutory rape requires proof of an additional fact from the charge of rape of an intoxicated victim, the State claims Lafferty was charged with two different offenses.

[¶ 11.] In this case, however, the Block-burger test is not dispositive. We have clearly stated that the Blockburger test is merely “ ‘a rule of statutory construction to help determine legislative intent.’ ” Dillon, 2001 SD 97, ¶ 14, 632 N.W.2d at 43 (quoting Garrett, 471 U.S. at 778-79, 105 S.Ct. at 2411, 85 L.Ed.2d 764); see also Weaver, 2002 SD 76, ¶ 14, 648 N.W.2d at 361. The Blockburger test “ ‘is not controlling when the legislative intent is clear from the face of the statute or the legislative history.’ ” Id. (quoting Garrett, 471 U.S. at 779, 105 S.Ct. at 2411, 85 L.Ed.2d 764) (emphasis added); see also Weaver, 2002 SD 76, ¶ 14, 648 N.W.2d at 361. Further, even if “the Blockburger -analysis arrives at a result contrary to the ‘language, structure, and legislative history’ of the statute, the ‘Blockburger presumption must of course yield to a plainly expressed contrary view on the part of the legislature.’” Weaver, 2002 SD 76, ¶ 14, 648 N.W.2d at 361 (citation omitted) (emphasis added).

[¶ 12.] In this case, the plain language of SDCL 22-22-1 evidences the legislative intent to define one offense. Cf. Morato, 2000 SD 149, ¶ 27, 619 N.W.2d at 663; Baker, 440 N.W.2d at 293. Further inquiry into the elements of a criminal statute is unnecessary where the Legislature’s intent is clear. Thus, we need not employ Block-burger because the language of the statute is controlling. Garrett, 471 U.S. at 778-79, 105 S.Ct. at 2411, 85 L.Ed.2d 764; Weaver, 2002 SD 76, ¶ 14, 648 N.W.2d at 361; Dillon, 2001 SD 97, ¶ 14, 632 N.W.2d at 43-44.

[¶ 13.] Lafferty was put in jeopardy twice for the same offense. After being acquitted of rape by a jury, he faced a second prosecution for the same alleged rape. Both the United States Constitution and the South Dakota Constitution protect him from such relitigation. The protection against double jeopardy “ ‘serves a constitutional policy of finality for the defendant’s benefit. That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal....’” Weaver, 2002 SD 76, ¶ 12, 648 N.W.2d at 360 (quoting Brown v. Ohio, 432 U.S. 161, 165-66, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977)) (quotation marks omitted)). Not only does the protection of double jeopardy finalize judgments, but it also “protect[s] the defendant from prosecutorial overreaching.” Garrett, 471 U.S. at 795, 105 S.Ct. at 2420, 85 L.Ed.2d 764 (O’Con-nor, J., concurring). As noted by Justice O’Connor,

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

Id. (O’Connor, J., concurring) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)). SDCL 22-22-1 defines but one offense, and double jeopardy prevents prosecution of Lafferty under SDCL 22-22-1(5) after his acquittal under SDCL 22-22-1(4).

[¶ 14.] Affirmed.

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

      . The trial court advised the State of the irregularities in the indictment concerning the alternative count. SDCL 25-1-6 provides that incestuous marriages are "null and void from the beginning.” It does not contain a criminal provision. On the other hand, SDCL 22-22-1(6) defines rape as sexual penetration of any persons "[i]f persons who are not legally married and who are within degrees of consanguinity within which marriages are by the laws of this state declared void pursuant to [SDCL] 25-1-6, which is also defined as incest.” Incest constitutes rape in the third-degree. SDCL 22-22-1. The irregularity in the indictment was never corrected.


author: SABERS, Justice.

text:
    2006 SD 53
    John APLAND, George Bean, Martin Bonato, Tom Cooper, Kim Cooper, Robert Crofford, Lorita Crofford, Tom Davis, Marlene Davis, Robert Ferrell, Janet Farrell, Harvey Garr, Valerie Garr, Paul Garr, Daniel Kane, Rosalie Fishel, Doug Johnson, False Bottom Livestock, Grace G. Kirksey, Eileen Randall, Kim Kling, Chris Kling, Terry Kudlock, Tim Kudlock Sharon Kudlock, K. Kudlock Family Trust, Herbert Lesmeister, Michael Lesmeister, Wayne Massie, Margaret Massie, Neal McCoy, Kevin Paradis, Jeral Shear, Dianne Shear, Robert Shear, Scott Stave, Susan Stave, Gary Steele, Kathy Steele, Travis Steele, Debra Steele, Wesley Thompson, And Cathaleen Wood, Appellants, v. BUTTE COUNTY, South Dakota, Appellees.
    Nos. 23874, 23875.
    Supreme Court of South Dakota.
    Argued May 25, 2006.
    Decided June 14, 2006.

      Kenneth E. Barker of Barker Reynolds Law Firm Belle Fourehe, South Dakota, for appellants.
    Robert L. Morris of Day Morris Law Firm, LLP, Belle Fourehe, South Dakota, for appellees.
   SABERS, Justice.

[¶ 1.] Apland and the other appellants (Apland) are appealing the circuit court’s decision that affirmed the Butte County Director of Equalization’s (Director) 2002 and 2003 assessments of rangeland property. Apland asserts that Director’s methodology in applying SDCL 10-6-33.6 was clearly erroneous, and we agree. Director did not give appropriate consideration to appurtenant and nontransferable water rights.

FACTS

[¶ 2.] In preparation for the assessment review for 2002, Director laid out a map of Butte County and proceeded to plot the land sales for 2000 and 2001. Director noted the sequence number and price per acre, not including any building value, on the map for each sale. Each of these forty-six sales were audited and approved by the South Dakota Department of Revenue. After plotting the sales, Director noted that the sales in the southern portion of the county were generally higher than the sales in the northern portion of the county. Director suspected that this difference was due to location. To see if his suspicion was correct, Director performed tests to determine whether the difference in sales price per acre was influenced by location.

[¶ 3.] Director performed eight pairings of northern and southern Butte County sales. He used sales similar in nature, considering factors such as location, soil quality, time of sale, use of property, and climate conditions. Director did not take into consideration appurtenant and nontransferable water rights or access to the Belle Fourehe Irrigation District (BFID) in selecting these pairs. After preparing these pairings, Director made adjustments only for soil rating to isolate any difference in sales price for location. He did not make an adjustment for the value of the appurtenant water rights. After preparing the pairings and making the appropriate soil adjustments, Director determined that property located in southern Butte County would be approximately 150 percent of the value of the same property in northern Butte County.

[¶ 4.] At the conclusion of the testing, Director determined the difference in sales price was based on location. Director then went through the process of identifying possible market areas or neighborhoods within Butte County. Director considered characteristics including: population, towns, road systems, markets, employment opportunities, vicinity of the Black Hills, vicinity of other municipalities such as Sturgis and Spearfísh, historic precipitation, available listings of properties in southern Butte County, and the larger competitive base (more buyers) interested in southern Butte County. As indicated, Director did not consider appurtenant and nontransferable water rights or access to BFID. Once these characteristics were established, Director mapped out two neighborhoods, the Southern Neighborhood and the Northern Neighborhood.

[¶ 5.] Pursuant to SDCL 10-6-33.6, Director then determined whether the median market value in each neighborhood deviated by more than ten percent from the overall county median market value. To determine the county-wide median market value, Director listed the 2000 and 2001 sales for the entire county with the actual price paid per acre (market value) and calculated that the median market value per acre was $284.00 for the county as a whole. Director then listed the fourteen 2000 and 2001 sales for the Northern Neighborhood. One sale included BFID water rights, but the acres with these water rights were located in the Southern Neighborhood. He determined the median market value per acre was $104.00 per acre, a -63.40 percent deviation from the county median market value per acre. Director then listed the thirty-two 2000 and 2001 sales for the Southern Neighborhood, of which thirty had BFID water rights. He determined the median market value per acre was $385.00 per acre, a +35.60 percent deviation from the county median market value per acre. Based on these calculations, Director determined that there existed more than a ten percent deviation from the overall county median market value per acre in both the Northern and Southern Neighborhoods.

[¶ 6.] Based on this ten percent deviation from the overall county median market value, Director determined that SDCL 10-6-33.6 allowed him to establish a separate market value per acre for land within the Northern and Southern Neighborhoods. In order to ascertain this separate market value, Director used a top dollar value process for assessment. The top dollar value process worked off soil ratings that represent the productivity capability of a soil, with 1.0 representing the most productive soil in the county. Director performed a soil survey calculation for each sale in Butte County in 2000 and 2001 using the soil ratings provided by the South Dakota Department of Revenue. Director calculated the weighted average soil rating for each sale and took that times the sale price to determine the top dollar value for each sale. It was determined that the county-wide median top dollar value for all sales in 2000 and 2001 was $418.00 per acre.

[¶ 7.] Director then performed the same analysis on sales in just the Northern Neighborhood and determined that the median top dollar value was $241.00 per acre. Therefore, a parcel with a soil rating of 1.0 in the Northern Neighborhood would be assessed at $241.00 per acre. The same analysis was done in the Southern Neighborhood, and Director determined that the median top dollar value was $642.00 per acre. In other words, a parcel with a soil rating of 1.0 would be assessed at $642.00 per acre. Director determined that the $642.00 top dollar value of the Southern Neighborhood could mean that some parcels with lower soil ratings in the Southern Neighborhood could be overvalued, mainly rangeland properties.

[¶ 8.] Director then considered five sales, three of which included BFID water rights, of either rangeland or mostly rangeland, most with soil ratings less than .6 in the Southern Neighborhood. Director determined that the average top dollar value for rangeland soils in the Southern Neighborhood was $332.00 per acre. Using the Butte County Table 1.A soils ratings, Director determined that most of the rangeland soils in the county fell below a rating of .6. Because Director had determined that the top dollar value selected for rangeland soils in the Southern Neighborhood was $332.00 per acre and the top dollar value for the Southern Neighborhood was $642.00 per acre, he divided $332.00 by $642.00 to arrive at a 52 percent adjustment. This meant soil ratings of .6 or less were valued at 52 percent of the top dollar value in the Southern Neighborhood. Again, Director did not consider appurtenant and nontransferable water rights or access to BFID as factors.

[¶ 9.] To prepare for the assessment review for 2003, Director again laid out a map of Butte County and noted the sales on a per acre basis. None of the nine Northern Neighborhood sales had BFID water rights and all of the fourteen Southern Neighborhood sales had BFID water rights. Again, Director noticed that the sales price on a per acre basis varied between the Northern and Southern Neighborhoods. Director again suspected that the difference in price was due to location. Director performed seven range-land pairings of Northern and Southern Neighborhood sales, considering various factors such as: location, soil quality, time of sale, use of property, and climate conditions. Again, appurtenant and nontransferable water rights and access to BFID were not considered as factors. Adjustments were made only for soil rating and time of sale. Based on these pairings, Director determined that there was anywhere from a 116 percent to 179 percent difference in per acre value as between Northern and Southern Neighborhood sales, with the higher land value being in the Southern Neighborhood.

[¶ 10.] Director next determined, under SDCL 10-6-33.6, that the median market value in each neighborhood deviated by more than ten percent from the county median market value. Director evaluated the nine sales in the Northern Neighborhood and observed that sale prices varied from $75.00 per acre to $140.00 per acre. Director calculated the median market value of the Northern Neighborhood to be $116.00 per acre. Fourteen sales occurred in the Southern Neighborhood, ranging from $175.00 per acre to $446.00 per acre. Director calculated the median market value of the Southern Neighborhood to be $345.00 per acre. Finally, Director calculated the countywide median market value per acre to be $253.00. Thus, the difference was -54.15 percent in the Northern Neighborhood and +36.17 percent in the Southern Neighborhood. Based on the greater than ten percent deviation in each neighborhood, Director determined that SDCL 10-6-33.6 allowed him to establish a separate market value per acre for the land in each of the two neighborhoods.

[¶ 11.] Director calculated the median assessed value to sale price ratio for all twenty-three sales in the county to be 96.87 percent. The median assessed value to sale price ratio for the nine sales in the Northern Neighborhood was calculated to be 84.14 percent. The median assessed value to sales price ratio for the fourteen sales in the Southern Neighborhood was calculated to be 101.99 percent. After making these calculations, Director made some adjustments. Director adjusted the assessed values in the Northern Neighborhood up three percent. This adjustment was made because South Dakota law requires that counties be assessed at least 85 percent of market value. Next, because some of the individual assessments in the Southern Neighborhood were greater than 100 percent, Director adjusted the assessed values in the Southern Neighborhood down 30 percent for all parcels with a soil rating over .68. This adjustment was made to eliminate most of the sales over 100 percent and achieve a better median ratio. After making these adjustments, Director determined that the median assessed value to sales price ratio for the entire county was now 89.27 percent, 88.35 percent for the Northern Neighborhood and 90.14 percent for the Southern Neighborhood.

[¶ 12.] Director’s methodology, procedure, and assessment figures were reviewed and approved by the Department of Revenue prior to the assessments being sent out for both the 2002 and 2003 assessments. Apland appealed these assessments to the circuit court. When reviewing the 2002 assessments, the circuit court held that Director complied with SDCL 10-6-33.6 in determining the median market value per acre in an identifiable region within Butte County deviated from the county median market value per acre by more than ten percent. The circuit court further held that Director properly established separate market values per acre of land within that region and that assessments based on these findings were valid assessments. Finally, the circuit court held that the evidence did not establish that the assessments lacked uniformity or were grossly inequitable without regard to full and true value of the appealed property-

[¶ 13.] In reviewing the 2003 assessments, the circuit court held that pursuant to SDCL 10-6-33.3, Director properly verified that the assessment neighborhoods were still valid and not in excess of market value or full and true value. The circuit court further held that Apland had not established that the assessments lacked uniformity or were grossly inequitable without regard to full and true value of the appealed property. Apland appeals raising two issues that we have consolidated into the following issue:

Whether the assessment of Apland’s rangeland violated Constitutional requirements of equality and uniformity.

Standard of Review

[¶ 14.] “This is an appeal of a tax assessment pursuant to SDCL 10 — 11— 43 and thus it is procedurally governed by SDCL ch 1-26.” Butte County v. Vallery, 1999 SD 142, ¶ 8, 602 N.W.2d 284, 286-87. “This standard of review requires [this Court] to accord great weight to the findings and inferences made by the hearing examiner on factual questions.” Id. (citing Clarkson & Co. v. Harding County, 1998 SD 74, ¶ 5, 581 N.W.2d 499, 501) (citation omitted). ‘When the issue is a question of fact, we ascertain whether the administrative agency was clearly erroneous.” Burke v. Butte County, 2002 SD 17, ¶ 8, 640 N.W.2d 473, 476 (citing Vallery, 1999 SD 142, ¶ 8, 602 N.W.2d at 286-87) (additional citations omitted). “Value is a question of fact and the trial court’s determination will only be overturned if it is clearly erroneous.” West Two Rivers Ranch v. Pennington Co., 1996 SD 70, ¶ 6, 549 N.W.2d 683, 686. “When, however, the issue is a question of law, we review the decisions of both the administrative agency and the circuit court de novo.” Burke, 2002 SD 17, ¶ 8, 640 N.W.2d at 477 (citing Vallery, 1999 SD 142, ¶ 8, 602 N.W.2d at 286-87).

[¶ 15.] Whether the assessment of Apland’s rangeland violated Constitutional requirements of equality and uniformity.

[¶ 16.] All real property in South Dakota is to be assessed for tax purposes at its true and full value. SDCL 10-6-33. The following “underlying constitutional provisions must ... be complied with:

(1) the burden of taxation of all property is to be equitable, SD Const, art. XI, § 2
(2) agricultural and nonagricultural property may be separated into distinct classes for tax purposes, SD Const, art. VIII, § 15,
(3) valuation of property is not to exceed its actual value, SD Const, art. XI, § 2, and
(4) taxation is to be uniform on all property in the same class. SD Const, art. VIII, § 15; SD Const, art. XI, § 2.”

Vallery, 1999 SD 142, ¶ 12, 602 N.W.2d at 287 (citing West Two Rivers, 1996 SD 70, ¶ 7, 549 N.W.2d at 686) (citations omitted). “There is a presumption that tax officials act in accordance with the law and not arbitrarily or unfairly when assessing property, and the taxpayer bears the burden to overcome this presumption.” Burke, 2002 SD 17, ¶ 18, 640 N.W.2d at 479 (citing Vallery, 1999 SD 142, ¶ 11, 602 N.W.2d at 287). “To overcome this presumption, the taxpayer must produce sufficient evidence to show the assessed valuation was in excess of true and full value, lacked uniformity in the same class, or was discriminatory.” Id. (citing Vallery, 1999 SD 142, ¶ 11, 602 N.W.2d at 287).

[¶ 17.] In the present case, Ap-land did not produce evidence that the assessed value of the property in question was in excess of the true and full value. In fact, Apland produced no evidence as to the true and full value of the property. Instead, Apland asserts that the methodology used by Director to determine the assessment value of Apland’s rangeland violated the Constitutional requirements of equality and uniformity. Specifically, Ap-land asserts that it was error for Director to use sales of land with “appurtenant water rights” without any adjustment for the market value of those water rights. Apland asserts that this error led to his rangeland, which does not have appurtenant and nontransferable water rights, being assessed at a substantially higher value than other rangeland of similar kind and quality.

[¶ 18.] It must be noted that while Ap-land uses the term “appurtenant water rights,” it is clear from this record that Apland is actually referring to sales of land with access to water from BFID. Specifically, in discussing sales with BFID water rights, Apland’s expert, Jerry Kjer-stad, stated that “sales ... with water rights should not be paired with sales without water rights unless an adjustment for the water rights could be quantified.” He further stated that “the quantity and quality of these [BFID] water rights should be considered.... My 40 years of appraisal experience suggests that top dollar value based on soil ratings of irrigated land should not be used or is not comparable to top dollar value of soil rating for properties with no water rights or irrigation.” Therefore, the actual question before this Court is whether it was clearly eiToneous for Director to use sales of land with access to BFID in his formula when determining that under SDCL 10-6-33.6, the median market value per acre in the Southern Neighborhood deviates by more than ten percent from the county median market value per acre, thus, allowing Director to establish a separate market value per acre for the land within the Southern Neighborhood.

[¶ 19.] Apland asserts that before the director calculated the median market values, he should have made adjustments for sales containing “appurtenant water rights” and adjusted those sale prices downwards. Apland asserts that only after the value of those water rights were considered could an accurate median market value per acre be determined.

[¶ 20.] Apland is correct. Butte County failed to comply with the Constitutional requirements of equality and uniformity. Here, rangeland without appurtenant and nontransferable water rights within the Southern Neighborhood, which includes BFID, was assessed at the same level as rangeland with appurtenant and nontransferable water rights. This produced a result that was neither equal nor uniform.

[¶ 21.] This Court has addressed the issues of irrigated land, irrigability of land, irrigation systems, and land located within an irrigation project for assessment purposes in the past. We now clarify the appropriate factors.

[¶ 22.] In Matter of Butte County, this Court held that “irrigated land should not be separately classified” and that Butte County could not establish a separate classification for irrigated land. 385 N.W.2d 108, 111 (S.D.1986). This Court noted that “[t]here are approximately 68,000 acres of irrigated land in Butte County, ... and various methods are used to apply water to the land.” Id. “The farming practices of the individual landowners are not to be considered when assessing the land’s value. Farm management decisions cannot change the earth’s value for taxation purposes.” Id. at 112 (emphasis in original) (citing Mortenson v. Stanley County, 303 N.W.2d 107, 111 (S.D.1981)). “Likewise, a farm management decision to implement an irrigation system cannot change the earth’s value for taxation purposes.” Id. (emphasis in original).

[¶ 23.] This Court further explained:

This does not mean, however, that the land’s irrigability, whether actually irrigated or not, is not a relevant consideration when assessing agricultural land value. The irrigability of land enhances its value ... [t]hus, to the extent the land is irrigable, because of its location, soil, terrain, topography, and appurtenant and nontransferable water rights, its value may be assessed appropriately. However, to the extent irrigability is already considered in the market value analysis, soil survey, etc., it should not be separately reevaluated, for double taxation based on this single factor would result. Therefore, we reverse that part of the circuit court Judgment which determined that the land’s irriga-bility is not a criteria for an increase in the valuation of agricultural land.

Id. (emphasis added) (internal citations omitted).

[¶ 24.] In Vallery, 1999 SD 142, 602 N.W.2d 284, the scenario before this Court was whether Butte County had applied valuation procedures consistently or uniformly after it made an initial determination of whether a landowner does in fact irrigate, how many acres are irrigated, the type of irrigation used, and how often the landowner irrigates in determining the value of the land for assessment purposes. In conducting its evaluation, this Court recognized that

[t]he South Dakota Department of Revenue ... assigns a rating to each soil type every year. The soil rating is based on the production capability of each soil and takes into account irriga-bility of soil and how irrigability affects the ability of the soil to produce. Thus, the irrigability of Vallery’s agricultural soil has already been taken into account by the Department.

Id. ¶ 14.

[¶ 25.] This Court further recognized its prior holding in Butte County and that “irrigability of land enhances its value and is a relevant consideration when assessing agricultural land value.” Id. ¶ 16, 266 N.W. 127 (citing Kindsfater v. Butte County, 458 N.W.2d 347, 351 (S.D.1990)). This Court again affirmed that “it is the ability of the soil to produce that is to be considered. In the context of irrigation this requires the proper focus to be on whether the land is irrigable, not whether the farming practices in use include irrigation or not.” Id. Finally, this Court held that the “sale of land located within the irrigation project [BFID], where every year the government guarantees available irrigation water, is not comparable to Vallery’s land, [whose irrigation system is supported by water procured from the Belle Fourche River], where the availability of water is often limited.” Id. ¶ 18.

[¶ 26.] In the present case, the methodology undertaken by Director was correct but for his failure to give appropriate consideration and value to appurtenant and nontransferable water rights, specifically BFID water rights. Director was correct to not consider whether rangeland was actually irrigated, a farm management decision. And, while Director did consider each parcel’s soil rating and made adjustments based on those ratings, Director’s methodology was clearly erroneous because he did not give sufficient consideration to the irrigability of the land with appurtenant and nontransferable water rights. This basic defect in the methodology did not produce an equal or uniform result. Therefore, we reverse and remand for proceedings consistent with this opinion.

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

[¶ 28.] MILLER, Retired Justice, sitting for KONENKAMP, Justice, disqualified.

        . SDCL 10-6-33.6 provides:
      If the median market value per acre in an identifiable region within a county deviates by more than ten percent from the county median market value per acre, the county director of equalization may establish a separate market value per acre for the land defined by the director of equalization within that identifiable region.

        . See also Butte County v. Lovinger, 64 S.D. 200, 266 N.W. 127 (1936) (noting that transferable stock in private irrigation companies is personal property and would not be a relevant consideration in determining the land’s irrigability).


author: PER CURIAM.

text:
    2006 SD 51
    Daniel STAHL and Melvin Stahl, Plaintiffs and Appellees, v. Joseph A. POLLMAN a/k/a Joseph Wollman a/k/a Joseph Pollman, Defendant and Appellant.
    No. 23739.
    Supreme Court of South Dakota.
    Considered on Briefs May 23, 2006.
    Decided June 14, 2006.

      Michael E. Unke, Salem, SD, Attorney for plaintiffs and appellees.
    Angela M. Colbath, Rapid City, SD, Attorney for defendant appellant.
   PER CURIAM.

[¶ 1.] Joseph Pollman appeals the denial of his motion to vacate a permanent injunction. We affirm.

FACTS

[¶ 2.] Pollman, Daniel Stahl and Melvin Stahl are from rural McCook County and own tracts of property that are close to one another. Daniel Stahl and Melvin Stahl are brothers and Daniel’s wife is a sister to Pollman’s wife. At some point in time, severe acrimony developed between Pollman and the Stahls. The record suggests that one of the causes was the Stahls’ purchase of some land formerly owned by Pollman at a bankruptcy sale.

[¶ 3.] Starting in 1993 and continuing through 1994, Pollman began engaging in a series of bizarre, harassing, and intimidating acts directed at the Stahls. He appeared at their residences and demanded money from them. He also threatened suicide and cried uncontrollably, causing the Stahls’ wives and children to fear his actions. On another occasion, Pollman sat behind Daniel Stahl during a church service. Pollman was not a member of the church and Daniel later learned that Poll-man had tried to make arrangements with an usher to sit directly behind Daniel during the service. In another incident, Poll-man drove his tractor to Melvin Stahl’s residence late at night and used it to tear large holes in the driveway. As a result, Melvin had to use his loader to repair the damage and make the driveway useable.

[¶ 4.] Pollman repeatedly trespassed upon the land the Stahls had purchased at the bankruptcy sale and continued to take property that did not belong to him from that land. Pollman also made a number of harassing and annoying telephone calls to the Stahls’ residences. Among the more bizarre incidents, Pollman took a bull from Melvin Stahl’s property in mid-1993, kept it hidden for six months and then returned it at midnight on January 2, 1994. Poll-man also shot and killed Melvin’s family dog and bragged to others that he had lured the dog away so that he could kill it.

[¶ 5.] Numerous incidents of the foregoing nature distressed the Stahls and led them to commence injunction proceedings against Pollman in October 1994. As part of the injunction action, the Stahls obtained a temporary restraining order limiting Pollman’s contact with them. Even before the hearing on the injunction, allegations were raised that Pollman had violated the restraining order. The hearing on the injunction was held on December 12, 1994 and, on January 5, 1995, the trial court entered a permanent injunction forbidding Pollman from having any contact with the Stahls, from going upon their property and from going within 600 feet of any location where the Stahls or any of their immediate family members might be located.

[¶ 6.] The Stahls’ injunction had little effect on Pollman. His continued acts of harassment led to numerous allegations of violation of the injunction, contempt proceedings, additional hearings and even more stringent court orders amending the injunction. A judgment of civil contempt was entered against Pollman in November 1995. Criminal proceedings were also initiated against Pollman. One of these resulted in our decision in State v. Pollman, 1997 SD 36, 562 N.W.2d 105, an appeal of a stalking conviction arising from a 1995 incident in which Pollman drove his tractor into Melvin Stahl’s pickup while they were both traveling on a narrow gravel road. Pollman’s conviction and suspended sentence of eighteen months in the penitentiary were affirmed by this Court.

[¶ 7.] Additional criminal prosecutions were commenced as a result of Pollman’s ongoing activities involving the Stahls and Pollman was again convicted for stalking Melvin Stahl in 2003. He was sentenced to eighteen months in the penitentiary. A few days after his release by the Department of Corrections in 2005, Pollman filed a motion to vacate the Stahls’ permanent injunction against him. The motion was denied and Pollman now appeals to this Court.

ISSUE

[¶ 8.] Did the trial court abuse its discretion in denying Pollman’s motion to vacate the injunction?

[¶ 9.] This Court does not disturb a ruling concerning injunctive relief unless it finds an abuse of discretion. Hendrickson v. Wagners, Inc., 1999 SD 74, ¶ 14, 598 N.W.2d 507, 510-11 (quoting Knodel v. Kassel Township, 1998 SD 73, ¶ 6, 581 N.W.2d 504, 506). The abuse of discretion standard of review extends to rulings concerning the dissolution or continuance of an injunction. See Clark v. City of Deadwood, 22 S.D. 233, 237, 117 N.W. 131, 133 (1908). “An abuse of discretion can simply be an error of law or it might denote a discretion exercised to an unjustified purpose, against reason and evidence.” Hendrickson, supra.

[¶ 10.] Pollman argues that the trial court erred as a matter of law in denying his motion to vacate the injunction against him because the injunction is, in reality, a stalking protection order under SDCL ch 22-19A and such orders are limited to a three year duration by SDCL 22-19A-11. Since the injunction was entered in 1995, Pollman argues that the trial court should have vacated it in 2005 for violation of the three year limitation.

[¶ 11.] Contrary to Pollman’s assertions, the Stahls did not obtain a stalking protection order pursuant to SDCL ch 22-19A. Rather they obtained an injunction in an action pursuant to SDCL ch 21-8. It would have been impossible for the Stahls to obtain a stalking protection order in 1995 because the provisions for such orders were not enacted until 1997. See 1997 SDSessL ch 131. Even when enacted, the stalking provisions included the qualification that “[a]ny proceeding under §§ 22-19A-8 to 22-19A-16, inclusive, is in addition to other civil or criminal remedies.” SDCL 22-19A-16 (emphasis added). Thus, it was clearly not the Legislature’s intention to displace other remedies, such as injunctive relief, with the provisions for stalking protection orders.

[¶ 12.] Few authorities have analyzed whether the enactment of provisions for stalking protection orders precludes or limits the availability of other injunctive relief. Similar questions have been addressed, however, in the context of domestic abuse statutes. In Capps v. Capps, 715 S.W.2d 547 (Mo.Ct.App.1986), a wife filed for divorce and, during the pendency of the action, obtained a series of protection orders under Missouri’s Adult Abuse Act. Her husband appealed arguing that the trial court erred in granting relief under the Adult Abuse Act because his wife could have obtained the relief she wanted in the divorce action. The Missouri court disagreed holding that the Adult Abuse Act provided a remedy regardless of whether the parties could obtain relief in another action. In reaching its decision, the court specifically noted language in the Adult Abuse Act making its remedies cumulative to other available civil or criminal remedies.

[¶ 13.] In Thomas v. Thomas, 44 Ohio App.3d 6, 540 N.E.2d 745 (1988), a wife being sued for divorce sought a civil protection order which was denied because of the preexisting divorce action. The Ohio court reversed holding that “the mere filing of an action for divorce is not a basis on which to deny a civil protection order.” Id. at 746. In reaching its decision, the court outlined the different purposes of protection orders and divorce provisions and noted language in the protection order statutes making their remedies cumulative to other available civil 'or criminal remedies.

[¶ 14.] Domestic abuse statutes such as those considered in Capps and Thomas are enacted, “to provide an efficient remedy for victims of abuse as an alternative to other available legal remedies such as criminal charges, tort claims, or divorce which victims are sometimes reluctant, unable or unwilling to use.” State v. Errington, 310 N.W.2d 681, 682 (Minn.1981). Much the same is true with regard to stalking statutes such as those under consideration here. They are intended to provide victims of stalking with efficient remedies as alternatives to other available remedies such as an action for injunctive relief. Many stalking victims might be unwilling or even unable to go through the time, effort and expense of obtaining counsel and pursuing a full-blown action for an injunction. Stalking protection orders offer victims an economical and expedient alternative by making standardized petition forms and instructions for their use available in the various clerks of courts offices. See SDCL 22-19A-8. As with domestic abuse statutes, however, the availability of such an alternative does not displace the other civil or criminal remedies available to victims, particularly where the statutory scheme spe-eifically provides that the new remedy is cumulative.

[¶ 15.] Because the stalking statutes provide remedies that are cumulative to other available remedies and do not replace those remedies, we hold that the enactment of the stalking statutes in 1997 did not turn the Stahls’ permanent injunction against Pollman into a stalking protection order governed by the three year limitation period in SDCL 22-19A-11. For that reason, the trial court did not abuse its discretion in denying Pollman’s motion to vacate the Stahls’ injunction for violation of the three year period.

[¶ 16.] Affirmed.

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

      . SDCL 22-19A-11 provides in pertinent part: "Any relief granted by the order for protection shall be for a fixed period and may not exceed three years.”