author: AMUNDSON, Justice

text:
    2001 SD 77
    The PEOPLE of the State of South Dakota in the Interest of K.D., Minor Child, And Concerning Rosebud Sioux Tribe, Intervenor and Appellee.
    Nos. 21715, 21726.
    Supreme Court of South Dakota.
    Considered on Briefs May 29, 2001.
    Decided June 20, 2001.
    Jean M. Cline of Brown, Feehan & Cline, Rapid City, SD, Attorneys for appellant child.

      Wendy T. McGowan, Deputy Pennington County State’s Attorney, Rapid City, SD, Attorney for appellant state.
    Terry Pechota of Viken, Viken, Pechota, Leach & Dewell, Rapid City, SD, Attorneys for appellee intervenor Rosebud Sioux Tribe.
   AMUNDSON, Justice

[¶ 1.] The State of South Dakota filed a petition to have KD.’s parents, F.D. and B.U., parental rights terminated. The Rosebud Sioux Tribe (Tribe) filed a motion to transfer the proceedings from state court to tribal court. After KD.’s parents had their rights terminated, the trial court granted Tribe’s motion. We reverse.

FACTS

[¶ 2.] On October 9, 1998, the state court granted the State’s petition for temporary custody of K.D. On November 9, 1998, the State filed an abuse and neglect petition raising specific allegations against the biological parents, F.D. and B.U. Tribe timely filed a motion to intervene with the court on March 30, 1999. The court granted Tribe’s motion to intervene. On June 23, 1999, Tribe filed its initial motion to transfer jurisdiction and dismiss.

[¶ 3.] On July 13, 1999, B.U. filed an objection to transfer pursuant to 25 U.S.C. 1911(b) of the Indian Child Welfare Act (ICWA). On July 14, 1999, the court entered its order denying Tribe’s motion to transfer based on B.U.’s objection. The court terminated F.D.’s parental rights on August 27, 1999. B.U.’s parental rights were terminated on June 19, 2000. The court also ordered K.D. to be temporarily placed under the supervision of the Department of Social Services, pending final disposition.

[¶ 4.] Tribe renewed its motion to transfer the proceedings to tribal court on September 11, 2000. The motion was argued before the court on September 18, 2000. The trial court granted the motion on September 28, 2000. K.D., through her guardian ad litem, and the State, appeal, raising the following issues:

1) Whether there was a child custody proceeding pending before the trial court which would give the court jurisdiction to permit Tribe to initiate a motion to transfer.
2) Whether the trial court erred in concluding that it could transfer to tribal court when B.U. objected to the transfer.

STANDARD OF REVIEW

[¶ 5.] A trial court’s findings of fact cannot be set aside unless they are clearly erroneous and, after all the evidence, this Court is left with a definite and firm conviction that a mistake has been made. People in the Interest of J.J., 454 N.W.2d 317, 321 (S.D.1990); Matter of A.L., 442 N.W.2d 233, 234 (S.D.1989). “A trial court’s conclusion of law may be reviewed and set aside only when the trial court erred as a matter of law.” Matter of A.L. at 235. We also review a trial court’s interpretation of .statutes without deference to that court. Satellite Cable Serv. v. Northern Elec. Coop., Inc., 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480. Therefore, we review the application of ICWA to the facts of this case de novo.

ISSUE

Whether the trial court erred in concluding that it could transfer to tribal court when B.U. objected to the transfer.

[¶ 6.] We will address the second issue raised by K.D. first as we find it dispositive. As stated above, B.U. filed an objection with the trial court to prevent transfer to the tribal court. The court initially denied Tribe’s motion to transfer because of B.U.’s objection. After B.U.’s parental rights were terminated, however, Tribe renewed its motion to transfer, which the court then granted.

[¶ 7.] The plain language of 25 U.S.C. 1911(b) makes it clear that a parent’s objection to transfer prevents such transfer. According to 25 U.S.C. 1911(b), “the court ... shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent!.]” The statute contains no limiting language, nor are there any latter enacted exceptions to a parent’s right to object. The rules of statutory interpretation adopted by this Court state:

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. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.

Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539 (citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted)). Thus, this Court is bound by the plain and ordinary meaning of the language employed in 25 U.S.C. 1911(b).

[¶ 8.] In addition, this Court has also stated that a parent’s objection made pursuant to 25 U.S.C. 1191(b) is absolute. See Matter of S.Z., 325 N.W.2d 53 (S.D.1982). InMotter of S.Z., this Court stated:

It is important to note that this is not the case of Indian children who are domiciled or residing on an Indian Reservation and as a result are subject to the exclusive jurisdiction of the tribal court. 25 U.S.C. § 1911(a). Rather, the action comes within 25 U.S.C. § 1911(b) which provides for the jurisdiction of the original proceeding to be in the state court.... This statute provides that objection by either parent will keep jurisdiction in the state court.

325 N.W.2d at 56. The Indian Child Welfare Act gives either parent the absolute right to object to a transfer and keep the case in state court. The mere fact that the parental rights were subsequently terminated in no way affects a parent’s objection to transfer. See Matter of S.Z., supra.

[¶ 9.] It is important to note that B.U.’s objection was not challenged as being defective or improperly procured. There is no evidence that B.U.’s objection was not knowingly or involuntary given. Nor is it disputed that B.U. had changed her mind and withdrew her objection. Therefore, the trial court erred when it granted Tribe its renewed motion to transfer despite B.U.’s proper objection pursuant to 25 U.S.C. 1191(b). There is no authority for the proposition that termination erases from the record a timely objection by a parent cited to appear in the proceeding.

[¶ 10.] We reverse and remand for the entry of an order consistent with this decision.

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

      . F.D., K.D.’s father, is currently incarcerated for convictions of incest and pedophilia slena-ming from his treatment of K.D. F.D. is not part of this appeal.

      . The issue before the Court is not the ultimate placement of K.D. Rather, it is whether a state court can transfer a matter to tribal court after the termination of the parental rights and despite a parent’s objection to such transfer. Our decision today, however, does not prevent Tribe from being part of any proceeding in state court. See 25 U.S.C. 1911(c). Tribe may advocate its position, and the state court must follow the strictures of ICWA when determining the final placement of K.D. See 25 U.S.C.1915. Our decision today merely requires a state circuit court to follow ICWA and all pertaining sections.


source: Caselaw Access Project

author: MILLER, Chief Justice. SABERS, Justice

license: Public Domain

text:
    2001 SD 82
    STATE of South Dakota, Plaintiff and Appellee, v. Brian Todd MACHMULLER, Defendant and Appellant.
    No. 21596.
    Supreme Court of South Dakota.
    Argued March 19, 2001.
    Decided June 27, 2001.

      Mark Barnett, Attorney General, John M. Strohmann, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    John Harmelink, Yankton, SD, for defendant and appellant.
   MILLER, Chief Justice.

[¶ 1.] In this appeal we hold that the magistrate court erred in excluding the South Dakota Driver’s License Manual as evidence and in failing to allow a doctor to testify as an expert witness.

FACTS

[¶ 2.] Brian Machmuller was convicted by a magistrate court jury for second offense driving under the influence of alcohol (DUI). He appealed to the circuit court which affirmed the conviction. We reverse and remand.

[¶ 3.] At approximately 5:40 p.m. on the afternoon of May 12, 1999, a Yankton police officer saw a pickup pull out of a gas station parking lot in front of an on-coming vehicle. The pickup’s failure to yield nearly caused an accident and the officer turned his patrol car around and pursued the vehicle for a time before bringing it to a stop at Machmuller’s residence. After the stop, the officer approached the driver, later identified as Machmuller, and asked him for his driver’s license, registration and proof of insurance. After examining the documents, the officer asked Machmul-ler to accompany him to his patrol car. On their way to the car, the officer noted Machmuller’s unsteady gait and, once seated in the vehicle, he also noted the “strong odor” of an alcoholic beverage on Ma-chmuller’s breath.

[¶ 4.] When asked by the officer if he had been drinking, Machmuller replied that he had had three or four cocktails after work. The officer also observed other indicia of intoxication in Machmuller’s manner and appearance including bloodshot and watery eyes and slurred speech. The officer then had him perform a series of field sobriety tests which he failed.

[¶ 5.] Based upon his observations, coupled with Machmuller’s admissions and the results of the field sobriety tests, the officer formed the opinion that Machmuller had been driving under the influence of an alcoholic beverage and placed him under arrest. He read Machmuller the implied consent warnings contained in SDCL 32-23-10 and Machmuller refused to submit to a blood test. Machmuller was later indicted for one count of DUI. See SDCL 32 — 23—1(2). A part two information was also filed charging him with second offense DUI.

[¶ 6.] A jury trial was held before Magistrate Judge Bruce Anderson. During trial, the prosecution presented testimony from the arresting officer concerning his observations of Machmuller on the afternoon of the arrest. The officer also testified that, based upon his observations, he formed the opinion that Machmuller had been driving while under the influence of an alcoholic beverage. During the defense portion of the case, Machmuller’s counsel presented testimony from several witnesses concerning the number of drinks Machmuller consumed after work on the afternoon of his arrest. His counsel also offered a South Dakota Driver’s License Manual into evidence. The manual contained a chart projecting blood alcohol levels based upon weight, number of drinks consumed and rates of alcohol absorption over various periods of time. In addition, his counsel offered testimony from a doctor of internal medicine concerning Ma-chmuller’s estimated blood-alcohol content at the time of his arrest based upon the number of drinks consumed and the chart contained in the driver’s license manual. The magistrate court excluded the manual and also the testimony of the doctor finding that he was not qualified to testify as an expert in the matter.

[¶ 7.] The jury returned a verdict finding Machmuller guilty of DUI and he admitted the allegations of the part two information for second offense DUI. The court sentenced him to one year in the county jail and a one thousand dollar fine. One-half the fíne and two hundred sixty five days of the jail sentence were suspended on various terms and conditions. As noted earlier, Machmuller appealed his conviction to the circuit court which affirmed. Machmuller now appeals to this Court.

ISSUE ONE

[¶ 8.] Did the court abuse its discretion in excluding the South Dakota Driver’s License Manual as evidence?

[¶ 9.] The magistrate court excluded the South Dakota Driver’s License Manual because it was not dated and because Machmuller’s doctor was not a qualified expert and could not provide the scientific foundation to establish it contained data necessary for his opinion. Machmul-ler argues the court abused its discretion in excluding the manual. We agree.

Our standard of review of “a trial court’s evidentiary ruling is that of abuse of discretion.” State v. Bailey, 1996 SD 45, ¶ 34, 546 N.W.2d 387, 394 (citations omitted). An abuse of discretion is “ ‘discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Larson v. Kreiser’s, Inc., 472 N.W.2d 761, 764 (S.D.1991)(quoting Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984)).

Bad Wound v. Lakota Community Homes, Inc., 1999 SD 165, ¶ 6, 603 N.W.2d 723, 724-725. Accord State v. Holzer, 2000 SD 75, ¶ 11, 611 N.W.2d 647, 650 (trial court’s evidentiary rulings are presumed correct and we review them under an abuse of discretion standard). “ ‘The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion’ ” Id. (quoting State v. Oster, 495 N.W.2d 305, 309 (S.D.1993)).

[¶ 10.] Here, we hold that the court abused its discretion in excluding the driver’s license manual for lack of sufficient authentication (i.e., a date and supporting expert testimony). SDCL 19-17-6 (Rule 902(5)) provides that, “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to books, pamphlets, or other publications purporting to be issued by public authority.” (emphasis added). In discussing the federal counterpart to this rule, it has been written that:

The scope of Rule 902(5) broadly extends to books, pamphlets, and all other publications purporting to be issued by a public authority. While the provision does not define the term, “publication,” there is no reason to assume that the drafters had anything other than the commonly employed meaning in mind: a writing produced in multiple copies for distribution to persons beyond those involved in the creation of the writing ... Accordingly, Rule 902(5) has been applied to a wide range of official publications including court reports, collections of statutes and ordinances, legislative history, regulations, governmental studies or reports, manuals, maps, videotapes, directories, and the like....
Rule 902(5) applies to items “purporting to be issued by public authority.” This means that an item must bear on its face some indicia of official origin to qualify for self-authentication under this provision. This may include an explicit statement that the item was issued by a public authority, a facsimile of an official seal or signature, the letterhead of a public agency, a statement that copyright is held by ... such an agency, or some similar indicia. In the usual case, the presence of such indicia is sufficient to qualify the item under Rule 902(5). However, whether a writing is an official publication is a preliminary fact for the court to determine under Rule 104(a). Thus, the court may consider evidence other than the item in question in making this determination.
Assuming the requirements of Rule 902(5) are met, the copy of the public record is self-authenticating. This does not mean, of course, that the item is admissible since admissibility issues other than authenticity may still be raised under the Evidence Rules or the Constitution.

31 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 7139 (2000)(emphasis added).

[¶ 11.] Applying those principles here, the manual offered by Machmuller is a multi-colored pamphlet obviously mass-produced and printed in multiple copies for distribution to driver’s preparing to take the South Dakota driver’s license examination. It contains an inscription on the back from the South Dakota Department of Commerce and Regulation — Division of Highway Safety and also gives the Pierre address for that government office. The inside front cover of the manual contains a copy of a letter from the current Governor on the Governor’s official letterhead under the seal of the State of South Dakota. These official marks and attributions render it highly unlikely that the document was counterfeited and make it readily clear that “the genuineness of [the manual] is ... obvious on its face[.]” See id. Thus, the document was self-authenticating and the trial court abused its discretion to the extent it excluded the manual for lack of sufficient authentication.

[¶ 12.] It must be noted, as cautioned by Wright & Gold, supra, authentication does not automatically render a document admissible. To be admissible, a document must also be relevant. See State v. Walton, 1999 SD 80, ¶ 19, 600 N.W.2d 524, 529 (for evidence to be admissible it must be relevant). Here, the only relevance of the manual mentioned by Ma-chmuller’s counsel was that it would provide necessary data for his doctor’s expert opinion. It follows that, if the doctor’s opinion was not otherwise admissible, the manual had no further relevance in the case. This leads to Machmuller’s second issue.

ISSUE TWO

[¶ 13.] Did the court abuse its discretion in failing to find Macmuller’s doctor qualified as an expert witness?

[¶ 14.] “ ‘[T]he trial court has broad discretion in determining the qualifications of expert witnesses and in admitting expert testimony.’ ” State v. Edelman, 1999 SD 52, ¶ 38, 593 N.W.2d 419, 425 (quoting State v. Dirk, 364 N.W.2d 117, 120 (S.D.1985)). It’s rulings in this regard are reviewed under the abuse of discretion standard. See id.

[¶ 15.] The magistrate court refused to find Machmuller’s doctor was qualified as an expert because he had not spent enough time in his career studying the effects of alcohol on a person’s blood alcohol level and because his testimony would be based almost exclusively on the South Dakota Driver’s License Manual. Machmuller argues this ruling was an abuse of discretion. We agree.

[¶ 16.] “South Dakota has adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) for the admission of expert scientific testimony in a criminal trial.” Edelman, 1999 SD 52 at ¶ 13, 593 N.W.2d at 422. Under this test, “the trial judge ... has the ‘task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.’ ” State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994)(quoting Daubert, 509 U.S. at 597, 113 S.Ct. at 2799, 125 L.Ed.2d at 485).

[¶ 17.] Here the State conceded important factors relevant to the reliability prong of the Daubert inquiry in a stipulation at trial. During the course of the Daubert hearing, the following exchange took place between the trial court, the prosecutor and defense counsel:

THE COURT: Now Mr. Chavis [the prosecutor], I don’t think you would dispute the fact that chemistry and science is well established — and I’m trying to save us some time — they’ve well established certain average man theories regarding the consumption of alcohol. Would you stipulate to that and how it affects the blood alcohol?
MR. CHAVIS: If I didn’t know the doctor I wouldn’t, but since I know him, yes, I know the doctor, I stipulate.
THE COURT: Then the question is, during this brief hearing I’ll take the foundational testimony to determine whether or not he’s qualified to give that testimony unless you want to save us some time and stipulate to it.
MR. CHAVIS: I think, Judge, I don’t know what he’s going to testify to. If he’s going to testify that a person with a certain body weight and a certain height and had so many drinks and so much time, absorb in, absorb out, process in, process out, you know, that’s one thing. But if he’s going to say, you know, based upon this little handy, dandy book put out by the state, you know, it looks to me like he’s only had three drinks, he should be in good shape, I don’t think we can allow that. I don’t think the book can come in.
I’d kind of renew my objection and ask for a standing objection so we don’t disrupt the jury.
THE COURT: You’ll be granted that standing objection.
MR. CHAVIS: As to him testifying about a charge which doesn’t exist.
THE COURT: That’s understood.
THE COURT: He’s stipulated so far, if I understand it right, that the methodologies concerning the chemistry, the amount of alcohol and how that alcohol consumed affects blood alcohol levels, is a scientifically reliable theory. It’s been published. It’s even published in our book here. It’s been published widely around the country and has been widely testified to by experts in the field. You agree to that?
MR. CHAVIS: I do. I assume, and we can ask him, and I assume that Dr. Smith has had the education, experience and training to so testify, (emphasis added).

[¶ 18.] Following this exchange, the court went on to take testimony from Machmul-ler’s doctor concerning his education and background and his considerable training, experience and expertise in chemistry, pharmacology and medicine. The doctor also testified that, over the years, he had been called upon by a number of major drug firms to sit on advisory boards and teach other physicians in the area of pharmacology. In addition, the doctor testified that he had been the chairman of a multi-organizational body advising on OSHA regulations for psychotropic drugs in nursing homes and that, more recently, he had been a member of a group dealing with pharmacologic issues in nursing homes for Medicare. The doctor further testified concerning his ability to calculate blood-alcohol levels based upon weight, alcohol consumed and extrapolation charts and indicated he could demonstrate his calculations to the jury and explain them.

[¶ 19.] Notwithstanding the above testimony and the stipulation by the state’s attorney, the court found Machmuller’s doctor was not qualified to testify as an expert in this case. This was error. Considering the State’s stipulation to the doctor’s qualifications and the doctor’s own testimony concerning his extensive medical and pharmacological background, we conclude that the court’s determination was an abuse of discretion. Clearly, the stipulation and the doctor’s testimony were more than adequate to establish his credentials as an expert and that his analysis would rest on a reliable foundation supported by scientifically valid principles. Daubert requires nothing more. See Hofer, supra.

[¶ 20.] Reversed and remanded.

[¶ 21.] AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 22.] SABERS, Justice, concurs in result.

SABERS, Justice

(concurring in result).

[¶ 23.] I agree with the result on both issues but disagree with the majority opinion’s treatment of issue 1 as dependent on issue 2. Both the manual and the expert should have been admitted in their own right.

[¶ 24.] The majority opinion recognizes that the manual was self-authenticating and admissible if proven relevant. That relevancy, however, is then linked to the treatment of issue 2 concerning the admissibility of Machmuller’s expert: “It follows that, if the doctor’s opinion was not otherwise admissible, the manual had no further relevance in the case.” This statement is confusing and in error. What could be more relevant than the blood alcohol content of Machmuller? Even if the trier of fact chose to disregard Machmuller’s account of the amount of alcohol consumed or his level of intoxication, Machmuller was clearly entitled to assert his defense.

[¶ 25.] Though the manual would not be decisive, it enabled the defendant to properly argue his version of the facts. The record demonstrates that the manual served a purpose beyond the expert testimony. Defense counsel first attempted to introduce the manual during cross-examination of the arresting officer, who was perhaps the most damaging witness against Machmuller. The trial court sustained the State’s objection finding the manual was without authentication and not relevant. Admittedly, this reasoning was error. As the manual and the extrapolation of blood alcohol content were relevant at all times in determining whether the defendant was driving under the influence, it was admissible in its own right. The manual could then be properly used by the defense expert and in challenging the State’s witness.

[¶ 26.] By attempting to limit the relevancy of this manual to the admissibility of the expert, the majority opinion is doing exactly what it faults the trial court for doing, requiring a foundation for this self-authenticating document. This reasoning defies logic and the law.

      . SDCL 32-23-10 provides:
      Any person who operates any vehicle in this state is considered to have given consent to the withdrawal of blood or other bodily substance and chemical analysis of the person’s blood, breath, or other bodily substance to determine the amount of alcohol in the person’s blood and to determine the presence of marijuana or any controlled drug or substance.
      The person shall be requested by the officer to submit to the withdrawal of blood or other bodily substance for chemical analysis or chemical analysis of the person’s breath and shall be advised by the officer that:
      (1)If the person refuses to submit to the withdrawal or chemical analysis, no withdrawal or chemical analysis may be required unless the person has been arrested for a third, fourth, or subsequent violation of § 32-23-1, constituting a felony offense under § 32-23-4 or 32-23-4.6;
      (2) If the person refuses to submit to the withdrawal or chemical analysis, the person's driver's license shall be revoked for one year, unless pursuant to § 32-23-11.1 the person pleads guilty to a violation of § 32-23-1 or § 32-23-21, prior to a revocation order being issued; and
      (3) The person has the right to have a chemical analysis performed by a technician of the person’s own choosing at the person's own expense, in addition to the test requested by the officer.

      . SDCL 32-23-1(2) provides:
      A person may not drive or be in actual
      physical control of any vehicle while:

      (2) Under the influence of an alcoholic beverage[.]

      . “Pharmacology” is "1. The science of drugs, including their composition, uses, and effects. 2. The characteristics or properties of a drug, esp those that make it medically effective.” The American Heritage College Dictionary 1024 (3d ed.1997).


author: GORS, Circuit Judge

text:
    2001 SD 81
    David BROWN EYES a/k/a David Brown Eyes Hostrawer and Jonette Brown Eyes a/k/a Jonette Burdine, Plaintiffs and Appellants, v. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES; James Ellenbecker, Secretary of Department of Social Services; Dennis Bendt, Department of Social Services; Linda Anderson; Beverly Lafferty; Joanna Mitchell; and Other Unnamed Social Workers, Defendants and Appellees.
    No. 21668.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2001.
    Decided June 27, 2001.

      Rena M. Atchison of Langley-Atchison Law Office, Rapid City, SD, Attorneys for plaintiffs and appellants.
    J. Crisman Palmer and Sarah Hirsch Wittmuss, Gunderson, Palmer, Goodsell & Nelson, Rapid City, SD, Attorneys for defendants and appellees.
   GORS, Circuit Judge

¶ 1. David and Jonette Brown Eyes (Plaintiffs) appeal a summary judgment in favor of the Department of Social Services (Department), Department Secretary James Ellenbecker (Ellenbecker), Department District Manager Dennis Bendt (Bendt) and Social Workers Linda Anderson (Anderson), Beverly Lafferty (Lafferty) and JoAnna Mitchell (Mitchell). We affirm.

FACTS

¶ 2. S.V., born in 1990, and T.V., born in 1991, were Indian children affiliated with the Ogalala Sioux Tribe. Mother was killed in a car accident and Father was in prison for an unrelated crime against Mother. The children were adjudicated abused or neglected with the final order terminating parental rights entered on April 4, 1995. Father appealed. More than a year later, on April 26, 1996, the Department placed S.V. and T.V. in foster care for eventual adoption by Plaintiffs in Aurora, Colorado. Four days later, on April 30, 1996, this Court remanded the appeal to the juvenile court to hold an evidentiary hearing to consider whether the tribal court had exclusive jurisdiction or whether concurrent state and tribal jurisdiction existed. Plaintiffs learned of the jurisdiction problem on June 4-5, 1996, when they attended the juvenile court hearing on remand. On June 14, 1996, the juvenile court determined that the tribal court had exclusive jurisdiction. The children were removed from Plaintiffs’ home in late July 1996. The children had been in Plaintiffs’ home for about three months when they were removed.

¶ 3. In June 1997, Plaintiffs sued Department, Ellenbecker, Bendt, Anderson, Lafferty and Mitchell for negligence, reckless and negligent performance of their duties and reckless and negligent misrepresentation. The complaint was later amended to allege bad faith and intentional misrepresentation. Plaintiffs sought reimbursement for actual expenses in excess of $31,000 and for unspecified damages for emotional distress, anxiety and harm.

¶ 4. The Department and the named individuals moved for summary judgment, which the trial court granted, based on immunity of the defendants and no breach of contract.

STANDARD OF REVIEW

¶ 5. The standard of review of a summary judgment is whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. The evidence is viewed most favorably to the nonmoving party and reasonable doubts are resolved against the moving party. The nonmoving party must present specific facts which show that a genuine, material issue for trial exists. On appeal, we determine only whether -a genuine issue of material fact exists and whether the law was applied correctly. If there is any basis which supports the ruling of the trial court, we affirm. Casazza v. State, 2000 SD 120, ¶ 8, 616 N.W.2d 872, 874 (quoting Dakota Cheese, Inc. v. Ford, 1999 SD 147, ¶ 15, 603 N.W.2d 73, 76). Summary judgment should be granted if the pleadings, depositions, interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact and show that the moving party is entitled to judgment as a matter of law. Julson v. Federated Mut. Ins. Co., 1997 SD 43, ¶ 5, 562 N.W.2d 117, 119 (quoting Ford v. Moore, 1996 SD 112, ¶ 7, 552 N.W.2d 850, 852); SDCL 15-6-56(c). Finally, summary judgment will only be affirmed if there are no genuine issues of material fact and the legal questions have been decided correctly. Ford, 1996 SD 112 at ¶ 7, 552 N.W.2d at 852; Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987).

¶ 6. Sovereign immunity is a question of law and review of the issue is de novo. Hansen v. South Dakota Dept. of Transp., 1998 SD 109, ¶ 7, 584 N.W.2d 881, 883. Summary judgment is appropriate for sovereign immunity claims. Casazza, 2000 SD 120 at ¶ 8, 616 N.W.2d at 874.

Tort Claims

Sovereign Immunity

South Dakota Department of Social Services

¶ 7. The State of South Dakota has sovereign immunity from suit. SD Const art III, § 27; Wilson v. Hogan, 473 N.W.2d 492, 494 (S.D.1991). The Department of Social Services is an entity of the State. SD Const art IV, § 9; SDCL 1-32-2(3); 1-36; and 28-1-1. The State may waive sovereign immunity and consent to be sued. Hansen, 1998 SD 109 at ¶¶ 9-12, 584 N.W.2d at 883-84. Sovereign immunity may be waived by purchasing liability insurance or by risk-sharing under SDCL 21-32-16 or 21-32A-2. The State has not consented to be sued, purchased liability insurance or chosen to be covered by risk-sharing. Therefore, the State has not' waived sovereign immunity in this case. The Department was properly granted summary judgment on Plaintiffs’ tort claims based on sovereign immunity. Wilson, 473 N.W.2d at 494.

Secretary Ellenbecker and District Manager Bendt

¶ 8. A state employee acting within the scope of the employee’s duty may also be immune from suit. “[T]he governing acts of the state, its agencies, other public entities, and their employees cannot be attacked in court without the state’s consent.” Hansen, 1998 SD 109 at ¶ 9, 584 N.W.2d at 883; See also SD Const art III, § 27; Casazza, 2000 SD 120 at ¶ 11, 616 N.W.2d at 874-75; Wilson, 473 N.W.2d at 494; Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915, 917 (S.D. 1988). Whether a state employee who is sued in an individual capacity is entitled to immunity depends upon “the function performed by the employee.” Kruger v. Wilson, 325 N.W.2d 851, 853 (S.D.1982); High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980); Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d 454, 458 (S.D.1980).

¶ 9. To be immune from suit, the employee’s function must be discretionary, rather than ministerial. The following factors should be considered to determine whether a function is discretionary or ministerial:

1) The nature and importance of the function the officer is performing;
2) The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of the coordinate branch of government;
3) The extent to which the imposition of liability would impair the free exercise of his discretion by the officer;
4) The extent to which the ultimate financial responsibility will fall on the officer;
5) The likelihood that harm will result to members of the public if the action is taken;
6) The nature and seriousness of the type of harm that may be produced;
7) The availability to the injured party of other remedies and other forms of relief.

Kyllo v. Panzer, 535 N.W.2d 896, 902 (S.D.1995); National Bank of South Dakota v. Leir, 325 N.W.2d 845, 848 (S.D.1982); Restatement (Second) of Torts § 895D comt f (1979).

¶ 10. A state employee who fails to perform a ministerial duty may be liable for the proximate results. Leir, 325 N.W.2d at 848. Ministerial acts are:

absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed designated facts or the execution of a set task imposed by a law prescribing and defining the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion, being a simple, definite duty arising under and because of stated conditions and imposed by law. A ministerial act envisions direct adherence to a governing rule or standard with a compulsory result. It is performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action. In short, once it is determined that the act should be performed, subsequent duties may be considered ministerial. If there is a readily ascertainable standard by which the action of the government servant may be measured, whether that standard is written or the product of experience, it is not within the discretionary function exception.

Hansen, 1998 SD 109 at ¶ 23, 584 N.W.2d at 886 (emphasis in original) (quoting 57 AmJur2d Municipal, County, School & State Tort Liability § 120 (1988)).

¶ 11. Plaintiffs point to nothing to show that Ellenbecker or Bendt had anything to do with the case. Plaintiffs cite nothing in the record to show that the supervisory functions of Ellenbecker or Bendt are ministerial rather than discretionary. At the summary judgment hearing, Plaintiffs’ counsel admitted that Ellenbecker’s duties were discretionary. Hansen, 1998 SD 109 at ¶ 22, 584 N.W.2d at 886. Mere conclusions are not enough. Plaintiffs also fail to provide authority for or to define the supervisory standards they claim to be ministerial. Casazza, 2000 SD 120 at ¶ 15, 616 N.W.2d at 876. Plaintiffs have failed to provide specific facts which show that a genuine and material issue of fact exists on sovereign immunity as required under SDCL 15—6—56(e). Dakota Cheese, 1999 SD 147 at ¶ 15, 603 N.W.2d at 76. Therefore, Ellenbecker and Bendt were properly granted summary judgment on Plaintiffs’ tort claims based on sovereign immunity.

Social Workers Anderson, Lafferty and Mitchell

¶ 12. In Leir, 325 N.W.2d at 849-50, we held that the placement and followup of children in foster care by social workers is a ministerial function. Even though there is some discretion involved in a literal sense, social workers do not make policy decisions involving foster care placement. The criteria and standards are already established. Following the standards is a routine ministerial function. We are not persuaded to either abandon or distinguish Leir. Therefore, the social workers are not entitled to summary judgment based on sovereign immunity on Plaintiffs’ tort claims.

Good Faith Immunity

¶ 13. A social worker may be entitled to good faith immunity during the performance of certain ministerial functions. SDCL 26-8A-14 provides the following:

Any person or party participating in good faith in the making of a report or the submitting of copies of medical examination, treatment or hospitalization records pursuant to §§ 26-8A-3 to 26-8A-8, inclusive, or pursuant to any other provisions of this chapter, is immune from any liability, civil or criminal, that might otherwise be incurred or imposed, and has the same immunity for participation in any judicial proceeding resulting from the report. Immunity also extends in the same manner to persons requesting the taking of photographs and X rays pursuant to § 26-8A-16, to persons taking the photographs and X rays, to child protection teams established by the secretary of social services, to public officials or employees involved in the investigation and treatment of child abuse or neglect or making a temporally placement of the child pursuant to this chapter, or to any person who in good faith cooperates with a child protection team or the department of social services in investigation, placement or a treatment plan. The provisions of this section or any other section granting or allowing the grant of immunity do not extend to any person alleged to have committed an act or acts of child abuse or neglect, (emphasis added).

In B.W. v. Meade County, 534 N.W.2d 595, 597-98 (S.D.1995), this Court held that good faith immunity applied to social workers investigating child abuse and neglect. In Cotton v. Stange, 1998 SD 81, ¶ 13, 582 N.W.2d 25, 29, this Court held that good faith immunity applied to social workers supervising children in foster care. Since the pre-adoptive placement of S.V. and T.V. with Plaintiffs was temporary until finalized, SDCL 26-8A-29, we now hold that good faith immunity applies to social workers making placement for foster care and eventual adoption.

¶ 14. Based on our review of the entire record in a light most favorable to Plaintiffs, we fail to find any evidence that the social workers acted for some improper purpose. Although the amended complaint alleges bad faith, the record does not support the allegation that the social workers withheld information or deliberately misrepresented facts to Plaintiffs.

¶ 15. The agreement Plaintiffs signed with the Department clearly stated that placement was pending the clarification of the legal termination of Father’s parental rights. Plaintiffs knew about Father’s appeal. They knew the children were a “legal risk” placement. The agreement provided they would legally adopt the children “when the legal risk is removed.” . The “Out of Home Care Service Agreement” noted “foster care/adoption” was the least restrictive alternative due to the appeal regarding termination of parental rights and further provided that Plaintiffs would adopt when and if the children became legally free. Plaintiffs admitted they knew that Father’s rights needed to be terminated and there was a chance the children would be removed from their home. Only thirty-five days passed between the remand on April 30, 1996, and the hearing on June 4-5, 1996, after which Plaintiffs admittedly knew about the jurisdiction issue. If the social workers did not inform Plaintiffs as quickly or as fully as they wished about the nature and effect of the jurisdictional remand, it was, at most, negligence, which is not bad faith. B.W. v. Meade County, 534 N.W.2d at 598; Cotton, 1998 SD 81 at ¶ 11, 582 N.W.2d at 29.

¶ 16. In their depositions, Plaintiffs agreed that the social workers were trying to keep the children placed in Plaintiffs’ home, that the social workers were working in the children’s best interests and that none of the social workers intentionally did anything to prevent the adoption. Legal complications and circumstances beyond the control of the social workers and Plaintiffs prevented the adoption. There is no showing of improper motive or dishonesty and no showing of bad faith. Therefore, Anderson, Lafferty and Mitchell were properly granted summary judgment based on good faith immunity on Plaintiffs’ tort claims.

Contract Claims

¶ 17. Plaintiffs also claimed damages for breach of contract. By entering into a contract, the State consented to be sued on contractual claims. Blue Fox Bar, 424 N.W.2d at 917-18.

¶ 18. Plaintiffs had a contract with the Department which provided for reimbursement of $8.59 per child per day. The agreement also provided that the parents would not incur any expenditures on behalf of the children without prior authorization from the Department. Plaintiffs had the children approximately ninety days and were paid the per diem under the contract. Yet, they claimed extensive consequential damages for breach of contract for expenses incurred in preparing to adopt the children. Plaintiffs sought reimbursement in excess of $31,000 including expenses for new pajamas for mother, furniture for the children’s room, a pager, a new freezer, toys and $500 for two comforters for the children’s beds. Plaintiffs admitted that there was no agreement that they would be reimbursed in addition to the per diem if they did not adopt the children.

¶ 19. Plaintiffs had the opportunity to read the “Fost/Adopt [sic] Placement Agreement” and the “Out of Home Care Service Agreement” but did not. Their conclusion that they had to take the contracts or leave them was not supported by any evidence in opposition to summary judgment. Plaintiffs were educated and experienced and immersed themselves in the adoption process. They asked no questions when they signed the agreements and made no effort to negotiate any other terms even though they knew these contracts governed the financial arrangements between the Department and themselves. Nothing indicated that this was a “take it or leave it” situation other than Plaintiffs’ unsupported conclusion to that effect. Under the facts in this case, these were not contracts of adhesion. Rozeboom v. Northwestern Bell Telephone Co., 358 N.W.2d 241 (S.D.1984). Plaintiffs were limited to the per child per day payment paid under the contract and the trial court properly granted summary judgment on the contract claim.

CONCLUSION

¶ 20. The summary judgment in favor of the Department of Social Services, Secretary Ellenbecker, District Director Bendt and Social Workers Anderson, Laf-ferty and Mitchell is affirmed.

¶ 21. MILLER, Chief Justice, and SABERS, AMUNDSON and GILBERTSON, Justices, concur.

¶ 22. GORS, Circuit Judge, for KONENKAMP, Justice, disqualified.


author: GILBERTSON, Justice. SABERS, Justice

text:
    2001 SD 83
    Lonny C. PARMELY and Jeanny E. Parmely, Plaintiffs and Appellants, v. Tom HILDEBRAND and Glenda Hildebrand, Defendants and Appellees.
    No. 21630.
    Supreme Court of South Dakota.
    Argued April 26, 2001.
    Decided June 27, 2001.

      Courtney R. Clayborne of Johnson, Eiesland, Huffman & Clayborne, Rapid City, SD, Attorneys for plaintiffs and appellants.
    Gregory J. Erlandson, Rodney W. Schlauger of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, SD, Attorneys for defendants and appellees.
   GILBERTSON, Justice.

[¶ 1.] Lonny and Jeanny Parmely (Parmelys) purchased a house and adjoining real estate from Tom and Glenda Hildebrand (Hildebrands). Prior to the sale, Hildebrands completed a property disclosure statement as required by SDCL 43-4-38, which disclosed various problems with the property. Parmelys later sued Hildebrands claiming inadequate disclosure of defects to the house. The trial court found for Hildebrands and we affirm.

FACTS AND PROCEDURE

[¶ 2.] In 1988, Tom Hildebrand built a house for himself and his family on 42 acres of land near Sturgis, South Dakota. Although Tom was a concrete contractor, this was the first house he had constructed. Because he had no experience at soil excavation, Tom hired a third party to excavate the basement. He did not consult an engineer or an architect regarding the construction of the house.

[¶ 3.] Shortly after moving into the house, Hildebrands began noticing structural problems. A particularly wet spring in 1989 caused the soil to heave. Once the house settled, the interior walls and floors cracked. An engineer informed them that the problems resulted from the expansive soil on which the house was built. The engineer advised Hildebrands to allow the soil to dry for two years before repairing the damage. In the spring of 1991, Hilde-brands removed all the interior walls and floors. Although not specifically recommended by the engineer, they also excavated 4-6 inches of soil from under the house and replaced it with gravel. In addition, extensive landscaping was performed around the house in an attempt to remedy the problems caused by the expansive soil. Despite these efforts, cracks reappeared on the interior walls.

[¶ 4.] In early 1994, Hildebrands purchased another acreage and attempted to sell their current house. They completed sellers’ property disclosure statements on February 11, 1994 and July 23, 1994. On both statements, they disclosed structural problems with the house. Specifically, they noted cracked walls and floors, previous roof leakage, and the existence of expansive soil on the property. An addendum, drafted with the help of Hildebrand’s lawyer, was attached to the statements to explain the problems they had experienced with the house. It provided:

We moved into this house on November 22, 1988. We did not have it completed due to the weather. The area incomplete on the outside of the structure was missing rain gutterfe] and downspouts and part of the foundation was not back-filled.
In the Spring of 1989, we had rain lasting for 9 days that totaled 7 or 8 inches. All of this moisture coming off the roof with no rain gutter[s] caused the backside of the house to settle. We had drain tile already installed and, because of that, all the water was evenly distributed. The only cracking on the back wall is on the garage. This is a hairline crack which has not moved since it happened.
When the house settled, the inside floors stayed in place, which caused the interi- or walls to crack. We had an engineer from the School of Mines come and explain to us exactly what had happened and what to do about it. He explained the area all around us is known to have shale and gumbo for soil. We had a soil test done to confirm this. The engineer advised us to wait two years and let the soil completely dry out before trying to fix it.
In the Spring of 1991, we moved into the upstairs and removed all of the interior walls and floors and replaced them. Since that time, we have had som.e sheetrock cracking in the kitchen/living room area, master bedroom area and other bedroom. These have all been repaired. The kitchen floor had a crack, which is normal for the size of the floor. We filled the crack and replaced the 14 tile[s] it affected. On the outside of the house, we have poured patios and sidewalks in the front and back to prevent water from getting close to the foundation of the house.

In the fall of 1994, Parmelys purchased the house and the 42 acres surrounding it for $175,000. Parmelys received the disclosure statements and the addendum before the sale.

[¶ 5.] In February 1995, Parmelys began experiencing problems similar to those suffered by Hildebrands, including roof leakage, cracks on the walls and floors, windows and doors that did not close properly, and swelling of the floor. Parmelys sued Hildebrands for allegedly failing to disclose known defects as required by SDCL 43-4-44, fraudulent concealment, negligent construction and breach of warranty. The circuit court granted summary judgment in favor of Hildebrands on all claims. This Court reversed that decision as to the claims for inadequate disclosure and fraudulent concealment. Parmely v. Hildebrand, 1999 SD 157, 603 N.W.2d 713. On remand, the parties submitted the action to the circuit court on pleadings, exhibits, and depositions. This was essentially the same record the trial court had before it at the time of the motion for summary judgment. The trial court found that Parmelys had failed to establish by a preponderance of the evidence that Hilde-brands had not adequately disclosed the known defects in the property and had fraudulently concealed those defects. Parmelys have appealed from that judgment.

ISSUE PRESENTED

Whether Parmelys established Hilde-brands’ noncompliance with the standards of SDCL chapter 43-4 in disclosing the condition of the home as it existed at the time of the sale.

STANDARD OF REVIEW

[¶ 6.] This case was presented to the trial court through prepared written statements of facts, exhibits, and depositions. In such a situation, we would have previously reviewed a trial court’s findings of fact de novo. See State Div. of Ins. v. Norwest Corp., 1998 SD 61, ¶ 11, 581 N.W.2d 158, 160. However, last year the legislature amended SDCL 15—6—52(a), which now requires all findings of fact, “whether based on oral or documentary evidence” to be reviewed under the clearly erroneous standard. SL 2000, ch. 91, § 1. Therefore, the trial court’s findings of fact will not be set aside unless “we are left with a definite and firm conviction that a mistake has been made.” Arnold Murray Constr., LLC v. Hicks, 2001 SD 7, ¶ 6, 621 N.W.2d 171, 174. A trial court’s conclusions of law are reviewed de novo. Id. Statutory disclosure statements essentially create a contract between the parties to a land sale. Therefore, the statements are reviewed de novo and we apply the customary rules associated with the construction and interpretation of a contract. Mahan v. Avera St. Luke’s, 2001 SD 9, ¶ 15, 621 N.W.2d 150, 154.

ANALYSIS AND DECISION

[¶ 7.] While Parmelys have alleged both inadequate disclosure and fraudulent concealment, this matter is essentially based on the statutory disclosure laws found in SDCL chapter 43-4. Therefore, we will restrict our analysis to whether Hildebrands fulfilled their obligations under those statutes.

[¶ 8.] A seller of residential property is required to complete a copy of the statutory disclosure statement. SDCL 43^4-38. If the disclosure statement is filled out completely, truthfully, and in good faith, the seller will not be liable for defects in the property. Id. §§ 43-4^40, 43-4^41. However, when defects are negligently or intentionally concealed, the seller will be liable for the damages suffered by the buyer. Id. § 43-4-42.

[¶ 9.] We first interpreted the mandatory disclosure statutes in Engelhart v. Kramer, 1997 SD 124, 570 N.W.2d 550. Initially, we noted that a disclosure statement does not create a warranty by the seller to the buyer as to the condition of the property. Id. ¶ 10, 570 N.W.2d at 552 (quoting SDCL 43-4-44). We also emphasized that sellers are not strictly liable under those statutes. Id. ¶ 18, 570 N.W.2d at 554. A negligent or intentional failure to disclose known defects is required before liability attaches. Id. We concluded that:

the doctrine of caveat emptor has been abandoned in favor of full and complete disclosure of defects of which the seller is atoare. We are not inferring, as Kramer suggests, that a seller must possess the expertise of a structural engineer to pass good faith muster. Nor are we suggesting that a seller will be liable for defects of which she is unaware.

Id. ¶ 20 (emphasis added). Since Engel-hart, we have stated that merely putting a buyer on notice of defects is not sufficient, known defects must be revealed truthfully and in good faith. Parmely, 1999 SD 157, ¶ 9, 603 N.W.2d at 716.

[¶ 10.] Parmelys claim that Hilde-brands did not disclose all the defects of which they were aware. They allege Hildebrands knew the repairs to the house did not cure the expansive soil problem, but yet Hildebrands represented in the addendum that the repairs had cured the predicament. As support for their assertion, Parmelys point to Tom’s deposition, where he testified that he knew the expansive soil still existed under his house and that the potential for problems existed, even after the renovations to the house. Parmelys allege that statement conflicts with the assertion in the addendum that the problems had been repaired.

[¶ 11.] Sellers of residential real property must disclose all known defects on the property. Engelhart, 1997 SD 124, ¶ 20, 570 N.W.2d at 554. Pursuant to this duty, Hildebrands completed two statutory disclosure statements. On both disclosure statements, Hildebrands noted that expansive soil was an “existing hazardous condition” (emphasis added). Hildebrands also disclosed cracked walls and floors, as well as roof leakage. These were the defects of which they were aware at the time of sale. As conceded by Parmelys in their brief, Hildebrands did not discover how to fix the problem with expansive soil until 1995, one year after the house was sold. Only at that time did Tom learn that expansive soil could be excavated and replaced with engineered soil. Before 1995, the only knowledge Hildebrands had were the statements made by an engineer that they should allow the soil to dry before attempting repairs. Parmelys have failed to prove by a preponderance of the evidence that Hildebrands had any knowledge of defects, at the time of the sale, which were not disclosed.

[¶ 12.] Despite the fact that Hilde-brands disclosed all the information known to them at that time, Parmelys claim the addendum misled them into believing the problem had been cured. Parmelys’ assertion that the addendum was cleverly drafted to give the false impression that the expansive soil problem was cured is unfounded by a reading of the entire addendum. They assert the statement, “[t]hese have all been repaired” was meant to mislead potential buyers into thinking it applied to all the problems with the house. However, we do not read contractual provisions in isolation, rather we read the entire document as a whole. Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶ 14, 604 N.W.2d 289, 293. When read in context, the statement clearly indicates only that the cracked sheetrock had been repaired. It makes no representation as to curing the expansive soil. After stating that the cracked sheetrock had been repaired, the addendum notes additional problems and attempted remedies. A crack in the kitchen floor was filled in and the affected tiles were replaced. A patio and sidewalks were installed to keep water away from the foundation. If the statement “[tjhese have all be repaired” applied to every defect on the property, this additional information would be meaningless and redundant. However, when the addendum is read as a whole, it simply lists known problems with the home and efforts taken to cure those problems. To read that statement as Parmelys suggest would in effect establish a warranty by Hilde-brands. While a seller may grant a buyer a warranty, Hildebrands clearly did not intend such a result. Nor is such a warranty established under the disclosure statutes. See SDCL 43-4-44 (a disclosure statement “is not a warranty of any kind by the seller.... ”); Engelhart, 1997 SD 124, ¶ 10, 570 N.W.2d at 552.

[¶ 13.] Parmelys further assert that if Tom, with his years of construction experience, was unaware of the full effect of expansive soil, they cannot be expected to understand the significance of that term. Whether Parmelys understood the significance of expansive soil is irrelevant under the statutory requirements of SDCL chapter 43-4. Liability attaches to a seller only if a defect is not disclosed. SDCL 43^4-42. Once the disclosure statement is truthfully completed, in good faith, a seller is absolved from liability, regardless of the buyer’s appreciation of that information. Id. § 43-4-40. The fact that Parmelys did not appreciate the significance of the information conveyed to them, and failed to seek the advice of professionals as to the consequences of the situation, will not impose liability on Hildebrands.

[¶ 14.] We advised in Engelhart that sellers need not possess the knowledge of a structural engineer to satisfy the requirements of SDCL 43-4-37 through 43-4-44. They need only disclose the defects of which they are aware. Engelhart, 1997 SD 124, ¶ 20, 570 N.W.2d at 554. The trial court concluded that a prepon-derence of the evidence established that Hildebrands truthfully, completely and in good faith, disclosed all the defects known to them. When asked at trial what information should have been conveyed to Parmelys, counsel replied that “the only thing that would fix the expansive soils would be ... to completely excavate it.” That information was not known to Hilde-brands until after the sale had been completed. Indeed, the information sought by Parmelys deals with potential remedies to known defects on the property. While sellers are required to disclose the condition of the property, there is no statutory authority to further require them to disclose possible remedies to those defects. See SDCL 43-4-44.

[¶ 15.] Parmelys failed in their burden of proof to produce sufficient evidence to convince the trial court that Hildebrands did not disclose pertinent information known to them at the time of the sale. We agree with the trial court’s assessment. Therefore, their claim of inadequate disclosure must fail.

[¶ 16.] Judgment is affirmed.

[¶ 17.] MILLER, Chief Justice, and KONENKAMP, Justices, concur.

[¶ 18.] SABERS and AMUNDSON, Justices, dissent.

SABERS, Justice

(dissenting)

[¶ 19.] The majority opinion concludes that Hildebrands completed the addendum both “truthfully and in good faith.” It is difficult to accept this conclusion as a serious statement.

[¶ 20.] I believe our decision in Engelhart v. Kramer, 1997 SD 124, 570 N.W.2d 550, commands a contrary result. In Engelhart, we emphasized the legislative definition of good faith:

An honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of the law, together with an absence of all information or belief of facts which would render the transaction unconscientious.

SDCL 2-14-2(13) (emphasis added). I am convinced that Hildebrands forfeited the good faith protection by creating a document that was designed to mislead. What more of a demonstration is needed than the one provided by the majority opinion: a legally drafted document with the proper tense of the word “existing” absolves the seller from liability. Close examination of the cleverly drafted document reveals the “intentional or negligent violation” of the disclosure requirements contained in SDCL chapter 43-4.

[¶ 21.] The addendum at issue attempts to minimize, distract and reassure the would be buyer that all problems had been taken care of properly. The document begins by convincing the prospective purchaser that any problems were due to the weather and the sellers’ inability to have the house properly completed. Then the document reassures its reader that after the rain gutter and drain tile had been installed, only minimal problems were present. After that, the document switches to the soil condition, characterizing the very significant damage to this house as occurring from settling, making the prospective buyer believe it was a one time ordeal by prefacing the severe damage by “when the house settled.” Then they relay that they had an engineer tell them “what to do about it.” This consisted of waiting two years and fixing the problem. The disclosure statement picks up with the fact that exactly two years later they “removed all interior walls and replaced them” and they “had some sheet rock cracking” but “it has all been repaired.”

[¶ 22.] No wonder the buyers were deceived. I see no reason for this disclosure except to reassure and convince the prospective buyer that all problems were fixed. That is not all. The document then continues to reassure the prospective buyer that the floor had a crack that damaged 14 tiles in the kitchen, but that was normal. After all the problems with this home, I suspect that definition of “normal” is in the eyes of the seller only.

[¶ 23.] Then there is the use of the magic word “existing” to attempt to absolve Hildebrands of liability. The word existing when used to describe the expansive soil was proper, this is only because the soil was still present. However, that does not end the inquiry. The disclosure addendum attempted to negate the existing and continual damage to the home by leading the prospective buyer to believe it had been repaired and remedied. I do not believe this type of word game or hide the ball tactic is what this Court envisioned when it stated: “We hold that with the adoption of South Dakota’s detailed disclosure statutes[,] the doctrine of caveat emptor has been abandoned in favor of full and complete disclosure of defects of which the seller is aware.” Engelhart, 1997 SD 124, ¶ 20, 570 N.W.2d at 554. It certainly is not what I envisioned. This majority opinion instead serves as a warning that buyer be aware more than ever before.

[¶ 24.] Obviously, the legislature never intended that buyers would have to hire lawyers to help them read deceptively disguised disclosure statements or be at their peril. The buyer must now heighten his awareness because disclosure statements designed to deceive are written by lawyers and approved by this Court. As a matter of law, the trial court’s conclusion was in error and we must reverse for a determination of damages. The buyers’ attorney stated in oral argument that buyers purchased the home on forty acres for $175,000, that the present value of the home is a salvage value of between $15,000 and $25,000, thrusting a possible $150,000 loss on the backs of the deceived buyers and the windfall goes to a contractor who has been building foundations in the Black Hills soil for twenty years. This may be the most outrageous result and whitewash opinion by this Court ever.

[¶ 25.] Therefore, I dissent.

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

      . This soil type, which is common in western South Dakota, expands to several times its normal size when saturated.

      .The second disclosure statement was completed because the Legislature amended the statutory form, effective July 1, 1994. SL 1994, ch 337.

      . The attorney who drafted this document did not represent Hildebrands in this action.

      . Parmelys were aware that the property had been appraised for as much as $250,915.

      . Parmelys acknowledge as much in their brief by not separating the two issues in violation of SDCL 15-26A-60(6) and by failing to cite any authority on their fraudulent misrepresentation claim. "The failure to cite supporting authority is a violation of SDCL 15-26A-60(6) and the issue is thereby deemed waived." State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599.

      . The dissent accuses Hildebrands of "cleverly” repairing the damages to the home. The obvious fact that the dissent ignores is that the repairs resulted in a gutting and rebuilding of the house interior which was completed in 1991, three years before Hildebrands decided to sell the home. The dissent fails to explain what is so "clever” about repairing the home one thereafter lives in. Those repairs, completed three years prior to sale, are now characterized by the dissent as cosmetic and internal, rather than curing the heart of the problem. This characterization trivializes the scale of the repairs and ignores the admission by Parmelys that, at the time of sale, Hildebrands did not know how to cure the "heart” of the problem. These "cosmetic and internal” repairs were merely an attempt to malte the house more livable, based on Hilde-brands' knowledge at the time. To assume deceptive intent and impose liability for repairing a house three years prior to its sale goes well beyond what the legislature intended when it enacted the statutory disclosure requirements. It improperly elevates the seller's responsibility to that of a warranty.

      . Although we decline to re-write the statutes to require sellers to educate potential buyers, even that argument will not rescue Parmelys in this case. While on notice that Hilde-brands thought it necessary to consult an expert as to the existing soil problem, Parme-lys failed to retain such expert assistance before purchase. If they had any question as to the meaning of the disclosure statement, they neither sought clarification from Hildebands nor consulted an attorney as to its meaning and ramifications. At no time during this litigation did Parmelys provide the Court with expert testimony to support their claim concerning the soil situation. Despite the fact that they shouldered the burden of proof, they waived their chance to testify live in front of the trial court, or force Hildebrands to do the same, which would have allowed them to advance a claim of having greater credibility. Instead, they aslced the trial court to decide the trial basically upon the same cold record as was submitted at the time of the motion for summary judgment.

      . In fact, if sellers do suggest remedies to the defects, upon which buyers rely, are sellers exposing themselves to a claim for future liability should their suggested remedies fail?

      . Sellers continually blame buyers for failing to discover the defects in the home. In fact, counsel for sellers stated at trial: "To any reasonable person who sees that there’s an existing hazardous condition, without regard to their knowledge of what expansive soil means, that would indicate to any reasonable person that there is a substantially severe problem with the home.”
      The obvious point is if a reasonable person would have known something is wrong, then why do sellers adamantly maintain that they did not know enough to trigger full disclosure. Even if we were to accept sellers’ argument they knew nothing, but that buyers should have, why were they clever enough to employ cosmetic repairs and a cleverly crafted disclosure statement? This is not the type of good faith envisioned by the legislature or this Court in Engelhart.

      In fact, all of the repairs and remedies taken by the sellers were internal and cosmetic. None of them went to the heart or cause of the problem, the expansive soil. They just tried to make them look that way.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Justin Auman KEENE, Appellant.
    No. 00-0642.
    Supreme Court of Iowa.
    July 5, 2001.

      Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Fred H. McCaw, County Attorney, and Christine Corken, Assistant County Attorney, for appellee.
   CADY, Justice.

In this appeal we must decide whether the district court is required in accepting a plea of guilty to the crime of dissemination of obscene material to minors to make an independent review of the material claimed to be obscene. We conclude the district court is not required to make an independent review. We affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

Justin Keene was charged by trial information with the crimes of solicitation, dissemination of obscene material to minors, and supplying alcohol to persons under the legal age. He subsequently agreed to plead guilty to one count of dissemination of obscene material to minors in violation of Iowa Code section 728.2 (1997), and the State agreed to dismiss the remaining charges.

Keene appeared before the district court to enter his plea of guilty. The district court determined the existence of a factual basis for the guilty plea after considering the minutes of testimony and statements made by Keene during the guilty plea colloquy. The minutes of testimony contained statements from five boys who said Keene showed them a pornographic video in his apartment. Each of the five minors described the contents of the video by indicating they observed “boys and girls having sex with each other” and “girls having sex with girls.” The witnesses also indicated the video depicted both vaginal intercourse and oral sex. The witnesses referred to the video as a “porn” movie and called the contents of the video “dirty.” They also stated Keene referred to the movie as pornography. The minutes of testimony also indicated Keene admitted to two police officers that he showed a pornographic video to the minors. At no time during the guilty plea proceeding, however, did the district court view the videotape.

The district court specifically questioned Keene concerning the factual basis for the guilty plea. In response, Keene acknowledged that he had read the minutes of testimony and that the State could prove beyond a reasonable doubt at trial the elements of the charge of dissemination of obscene material to minors. The district court accepted the plea of guilty and informed Keene of his right to challenge the guilty plea through a motion in arrest of judgment.

Keene was subsequently sentenced. He received a suspended term of incarceration and was placed on probation.

Keene appeals. He argues that no factual basis existed to support the guilty plea to dissemination of obscene material to minors because the district court failed to independently review the video to determine if it did in fact contain obscene material. He claims his trial counsel was ineffective for permitting him to plead guilty under the circumstances.

II. Scope of Review.

Generally, we review challenges to guilty pleas for the correction of errors at law. Iowa R.App. P. 4. However, because Keene claims his trial counsel was ineffective for permitting him to plead guilty to a charge not supported by a factual basis, our review is de novo. State v. Campbell, 589 N.W.2d 705, 706 (Iowa 1999).

III. Preservation of Error.

Under Iowa Rule of Criminal Procedure 23(3)(a), a defendant may not challenge a guilty plea on appeal unless he filed a motion in arrest of judgment prior to sentencing. State v. Gant, 597 N.W.2d 501, 503 (Iowa 1999). Although the district court informed Keene at the guilty plea proceeding of the requirement of filing a motion in arrest of judgment to preserve error, see Iowa R.Crim. P. 8(2)(d), Keene never filed such a motion. See Gant, 597 N.W.2d at 504; State v. Birch, 306 N.W.2d 781, 783 (Iowa 1981). However, Keene argues his trial counsel was ineffective for permitting him to plead guilty and for failing to file a motion in arrest of judgment. This is an exception to our error preservation requirement. Gant, 597 N.W.2d at 504; see State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998).

IV. Factual Basis.

It is axiomatic that a trial court “may not accept a guilty plea without first determining that the plea has a factual basis.” State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999); see Iowa R.Crim. P. 8(2)(b); Brainard v. State, 222 N.W.2d 711, 723 (Iowa 1974). Moreover, the factual basis must be disclosed by the record. State v. Johnson, 234 N.W.2d 878, 879 (Iowa 1975). If a defendant enters a plea of guilty to a crime and the record fails to disclose a factual basis, defense counsel fails to provide effective assistance. Schminkey, 597 N.W.2d at 788. Additionally, prejudice is inherent under the circumstances. Id.

The record to support a factual basis for a guilty plea includes the minutes of testimony, statements made by the defendant and the prosecutor at the guilty plea proceeding, and the presentence investigation report. Id. This record, as a whole, must disclose facts to satisfy the elements of the crime. See State v. Marsan, 221 N.W.2d 278, 280 (Iowa 1974). However, the trial court is not required to extract a confession from the defendant. Id. Instead, it must only be satisfied that the facts support the crime, “not necessarily that the defendant is guilty.” 1A Charles Alan Wright, Federal Practice and Procedure § 174, at 199 (1999).

Iowa Code section 728.2 makes it a crime for any person to knowingly disseminate or exhibit obscene material to a minor. Iowa Code § 728.2. Section 728.1(5) defines obscene material as:

any material depicting or describing the genitals, sex acts, ... which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political or artistic value.

Iowa Code § 728.1(5) (emphasis added). A sex act is “any sexual contact, actual or simulated ... between two or more persons ... by penetration of the penis into the vagina ..., or by contact between the mouth or tongue and genitalia....” Id. § 728.1(9).

Keene claims a factual basis for the obscenity element of the crime was not established because the videotape was not made part of the record and the trial court did not independently review the tape to determine if it fell within the definition of obscene material. Keene relies on Clicque v. United States, 514 F.2d 923 (5th Cir. 1975), which held that the trial court was required to review the material on which a guilty plea was based before accepting the plea. Clicque, 514 F.2d at 927.

In Clicque, the defendant pled guilty to mailing an obscene letter. Id. at 924. The letter was not reproduced in the indictment and the record only characterized the contents of the letter as “obscene, lewd, lascivious, indecent, filthy and vile.” Id. The court did not question the defendant about the specific contents of the letter when the defendant entered his plea of guilty. See id. at 925.

The defendant later challenged the conviction as violative of his First Amendment rights because the trial court that accepted the plea could not have made a determination that the letter constituted obscene material. Id. The Fifth Circuit Court of Appeals concluded that an obscenity conviction obtained by a plea of guilty must be supported by an independent factual assessment of the material by the court to enable the court to determine that the material was not constitutionally protected. Id. at 927. The court imposed this requirement based on the inherent uncertainty between obscene and constitutionally protected material and the court’s duty to vigilantly uphold constitutional guarantees. Id. at 926.

We decline to follow the holding in Clicque. It assumes the factual basis to support a determination that certain material is obscene can only be made by personal observation. Clearly, personal observation is one method to make such a determination, but not the exclusive method. We believe the essential component is that the district court be provided a description which is sufficient to allow it to make a determination that the material is obscene. Obscene material can be described in words, just as it can be observed. Thus, we turn to the record to determine if it is sufficient to support a factual basis for the obscenity element of the crime.

The minutes of testimony in this case included the testimony of the five minors who detailed sex acts depicted in the video. The videotape was described as depicting boys and girls engaged in sexual intercourse as well as girls engaged in sexual acts with other girls. The minors described the sex acts as vaginal intercourse and oral sex. One minor specifically described the video as showing male genitalia penetrating a woman. We find the descriptions of the video provided in the minutes of testimony are sufficient to satisfy the definition of obscene material.

We conclude a factual basis existed to support Keene’s plea of guilty. See State v. Randall, 258 N.W.2d 359, 362 (Iowa 1977); State v. Greene, 226 N.W.2d 829, 831 (Iowa 1975); State v. Hightower, 587 N.W.2d 611, 614 (Iowa Ct.App.1998). Moreover, it was unnecessary for the court to independently view the material claimed to be obscene prior to accepting the plea of guilty when the record otherwise contained a sufficient description of the material. Accordingly, Keene’s counsel was not ineffective for permitting Keene to plead guilty. Gant, 597 N.W.2d at 505; Carter, 582 N.W.2d at 165; State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Furthermore, counsel did not breach a duty owed to Keene by not filing a motion in arrest of judgment to challenge the guilty plea. Carter, 582 N.W.2d at 166; Brooks, 555 N.W.2d at 448. Keene’s ineffective assistance claim is without merit.

V. Conclusion.

We conclude a factual basis existed to support Keene’s plea of guilty to the charge of dissemination of obscene material to minors under Iowa Code section 728.2. Trial counsel was not ineffective for permitting Keene to plead guilty and for not filing' a motion in arrest of judgment.

AFFIRMED.

      . The district court meticulously questioned Keene during the plea colloquy to establish that his plea was entered voluntarily and intelligently. See Iowa R.Crim. P. 8(2)(d); Brainard v. State, 222 N.W.2d 711, 723 (Iowa 1974). We limit our discussion of the facts to the factual basis for the plea because the issue on appeal is similarly limited.


author: TERNUS, Justice. CARTER, Justice

text:
    STATE of Iowa, Appellee, v. George Wilburn JOHNSON, Appellant.
    No. 00-0487.
    Supreme Court of Iowa.
    July 5, 2001.

      Maria Ruhtenberg of Ruhtenberg Law Office, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
   TERNUS, Justice.

This case turns on an interpretation of Iowa Code section 901.10(2) (1999). This statute allows the court to reduce the mandatory minimum sentence imposed by Iowa Code section 124.413 if a defendant, who meets the other prerequisites of the statute, has cooperated in the prosecution of other drug offenders. Although the parties in the case before us agree that no reduction is possible unless the prosecutor has first requested one based on the required cooperation, the parties disagree as to whether the court has power to exceed the level of reduction requested by the State. The district court here refused to consider any reduction of the mandatory minimum term beyond the five-percent reduction requested by the prosecutor. The defendant appeals his sentence, claiming error in the district court’s refusal to exercise discretion as to the amount of the reduction.

Upon our consideration of the arguments of the parties, we hold that the district court is not limited to the amount of reduction requested by the prosecutor in reducing a defendant’s sentence for cooperation under section 901.10(2). Rather, once the prosecutor has requested a reduction in the mandatory minimum term, the court must exercise its discretion to determine the amount of any reduction, subject to the statutory limitation of “one-half of the remaining mandatory minimum.” Iowa Code § 901.10(2). Because the district court here refused to exercise any discretion in determining the amount of the reduction to be given the defendant, we vacate the defendant’s sentence and remand for resentencing.

I. Background Facts and Proceedings.

The defendant, George Johnson, pled guilty to possession of a controlled substance (methamphetamine) with intent to deliver in violation of Iowa Code section 124.401(1)©(7). Because this offense is a class “B” felony, see id. § 124.401(1)©(7), the court sentenced Johnson to an indeterminate prison term of twenty-five years. See id. §§ 902.3 (stating that conviction of a class “B” felony requires imprisonment “for an indeterminate term, the maximum length of which shall not exceed the limits fixed by section 707.3 or section 902.9 nor shall the term be less than the minimum term imposed by law, if a minimum sentence is provided”), 902.9(1) (requiring twenty-five-year sentence for class “B” felony).

The court then considered the application of any required minimum sentence. Initially, the court stated that Johnson would not be eligible for parole until “a minimum period of confinement of one-third of the maximum indeterminate sentence ha[d] been served.” See id. § 124.413 (stating that a person convicted under section 124.401(1)© “shall not be eligible for parole until the person has served a minimum period of confinement of one-third of the maximum indeterminate sentence prescribed by law”). Then, the court ordered that this minimum term would be reduced by one-third for Johnson’s guilty plea. See id. § 901.10(2) (allowing a reduction in the mandatory minimum sentence by up to one-third for a qualifying offender if offender has pled guilty). In addition, Johnson’s minimum sentence was further reduced by five percent based on his cooperation in the prosecution of other drug offenders. See id. (permitting, upon the prosecutor’s request, an additional reduction in the remaining minimum term of up to one-half for defendant’s cooperation with authorities). It is this last order that is the subject of dispute in this appeal.

At the sentencing hearing, the State requested that the court reduce the mandatory minimum term under section 124.413 by an additional five percent based on Johnson’s cooperation in prosecuting other drug violators. The defendant requested an additional reduction of fifteen percent. The prosecutor resisted, arguing that section 901.10(2) did not permit the court to grant a reduction for cooperation greater than that recommended by the State. The district court agreed with the State, and refused to consider a reduction in excess of the five percent requested by the prosecutor.

The defendant has appealed. He argues to this court that the restriction on the court’s authority suggested by the State is not expressed in the statute. The State argues in response that the defendant’s interpretation of the statute is “unworkable” because it (1) would “embroil! ] the sentencing court in the details of pending cases in various stages of prosecution”; (2) “would jeopardize ongoing investigations by requiring their identification and the accused’s involvement in them to be stated on the sentencing record”; and (3) would compromise the defendant’s status or the status of others as a confidential informant. In addition, the State asserts that “the prosecutor is in a superior position to evaluate the degree and value of an accused’s cooperation.”

II. Relevant Principles of Statutory Construction.

The issue on appeal is one of statutory interpretation. We review the district court’s interpretation and application of a sentencing statute for the correction of errors at law. See State v. Beach, 630 N.W.2d 598, 600 (Iowa 2001); State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000).

“The primary purpose of statutory construction is to determine legislative intent.” McCoy, 618 N.W.2d at 325. The court gleans this intent from the words used by the legislature. See State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997). We do not “speculate as to the probable legislative intent apart from the words used in the statute.” State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996). In addition, we will not “read something into the law that is not apparent from the words chosen by the legislature.” State v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999). Finally, the court will not “substitute its judgment for that of the legislature on matters of policy.” 1 Norman J. Singer, Sutherland Statutory Construction § 2.01, at 15 (5th ed.1994 rev. vol.); accord State v. Wagner, 596 N.W.2d 83, 88 (Iowa 1999).

III. Discussion of Issue.

The determinative issue in this case is the proper interpretation of the following statute:

1. A court sentencing a person for the person’s first conviction under section 124.406,124.413, or 902.7 may, at its discretion, sentence the person to a term less than provided by the statute if mitigating circumstances exist and those circumstances are stated specifically in the record.
2. Notwithstanding subsection 1, if the sentence under section 124.413 involves a methamphetamine offense under section 124.401, subsection 1, paragraph “a ” or “b ”, the court shall not grant any reduction of sentence unless the defendant pleads guilty. If the defendant pleads guilty, the court may, at its discretion, reduce the mandatory minimum sentence by up to one-third. If the defendant additionally cooperates in the prosecution of other persons involved in the sale or use of controlled substances, and if the prosecutor requests an additional reduction in defendant’s sentence because of such cooperation, the court may grant a further reduction in defendant’s mandatory minimum sentence, up to one-half of the remaining mandatory minimum sentence.
3. The state may appeal the discretionary decision on the grounds that the stated mitigating circumstances do not warrant a reduction of the sentence.

Iowa Code § 901.10 (emphasis added). Under section 901.10(2), a defendant who pleads guilty to his or her first methamphetamine offense subject to section 124.413 can obtain a one-third reduction in the mandatory minimum term if mitigating circumstances are found. See State v. Iowa Dist. Ct. for Monroe County, 630 N.W.2d 778, 781, n.3 (Iowa 2001). In addition, a defendant who pleads guilty can receive an additional reduction if two further requirements are met: (1) the defendant has cooperated “in the prosecution of other persons involved in the sale or use of controlled substances”; and (2) the prosecutor requests an additional reduction based upon such cooperation. Iowa Code § 901.10(2). Upon the occurrence of these prerequisites, the statute authorizes the court to further reduce the defendant’s minimum term of confinement by “up to one-half of the remaining mandatory minimum sentence.” Id.

It is clear from the statute that the district court ultimately decides whether the defendant’s mandatory minimum sentence should be shortened based on the defendant’s cooperation with the authorities. Because section 901.10(2) states that “the court may grant a further reduction,” the court has discretion to reject the prosecutor’s request for any reduction. Id. (emphasis added); see Adams, 564 N.W.2d at 690 (stating that legislature’s use of the word “may” demonstrates its intent “to confer a discretionary power”).

The State argues, however, that the court has no discretion to grant a reduction in excess of that requested by the prosecutor. Interestingly, the State does not argue that the court has no discretion at all with respect to the level of reduction. It concedes that the court is not bound by the State’s request insofar as the court may choose to grant a reduction less than that requested by the prosecutor. The State simply claims that the prosecutor’s request sets a cap on any reduction that may be allowed by the court.

In considering the State’s position, we note initially that the statute does in fact place a limitation on the court’s discretion, albeit not the one urged by the State. The statute expressly states that the court may not grant a further reduction in excess of “one-half of the remaining mandatory minimum sentence.” Iowa Code § 901.10(2). If, as the State suggests, it is the prosecutor who decides the maximum level of the reduction, it seems more logical that any limitations on the extent of the reduction would be placed on the prosecutor, not the court. Moreover, the fact that the legislature expressly limited the court’s discretion indicates that it gave consideration to the breadth of the court’s power. The legislature could also have expressly limited any reduction by the court to an amount that did not exceed the prosecutor’s request, but it did not do so. See State v. Ayers, 590 N.W.2d 25, 31 (Iowa 1999) (holding that sentencing court had discretion under sentencing statute, noting “that the legislature has demonstrated its ability to use restrictive language when it desires to do so”); Adams, 554 N.W.2d at 689 (“legislative intent is also expressed by the legislature’s failure to address an issue”).

We also point out that the State’s proposed interpretation is at odds with the traditional allocation of power among the three branches of government.

The legislature possesses the inherent power to prescribe punishment for crime, and the sentencing authority of the courts is subject to that power. In addition, the legislature has properly placed the authority to plea bargain with the prosecution. Discretion as to what charge to prosecute is normally left to the authority charged with the duty to prosecute. Furthermore, when a plea bargain has been struck, the court has the authority to accept the plea agreement, or to reject it.

State v. Iowa Dist. Ct. for Shelby County, 308 N.W.2d 27, 30 (Iowa 1981) (citations omitted). Subject to the statutorily prescribed punishments for criminal offenses, “the actual sentencing of a defendant is an independent function that is the sole province of the judiciary.” State v. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d 575, 578 (Iowa 2000) (emphasis added).

When we consider section 901.10(2) in the context of these general principles, we think the discretion to determine the extent of any reduction in a defendant’s mandatory minimum sentence rests with the district court. First of all, there is no claim here that the amount of any reduction the defendant would receive pursuant to section 901.10(2) was part of the plea bargain leading to his guilty plea. Therefore, the power to determine the defendant’s sentence, subject to statutory limitations, would normally lie with the court, not the prosecutor. We find nothing in the statute that changes this general rule.

Moreover, the State’s suggestion that the sentencing court cannot grant a reduction greater than that requested by the prosecutor presupposes that the prosecutor’s request for “an additional reduction” is for a specific amount. Yet section 901.10(2) does not require that the prosecutor’s request be anything more than general in nature. See Iowa Code § 901.10(2) (stating prosecutor may request “an additional reduction” in mandatory minimum term based on defendant’s cooperation). If, then, a prosecutor simply asks the court to make “an additional reduction” in the defendant’s sentence without specifying how much of a reduction, the court would be required to determine the level of any reduction.

The fact that the court will, under these circumstances, decide the amount of the reduction undermines the State’s argument that the court is ill-equipped to determine the value of a defendant’s cooperation. Even in situations where the prosecutor’s request is specific, the court will have to decide whether the defendant’s assistance to law enforcement earned the defendant any reduction in sentence. Thus, even if we were to accept the State’s premise that the prosecutor is in a better position to judge the value of a defendant’s assistance, that assertion is not a valid ground upon which to read into the statute a limitation on the court’s sentencing discretion. If that supposition had been a motivating factor for the legislature when it drafted this statute, the legislature would have simply required that the district court reduce the defendant’s minimum sentence by the amount requested by the prosecutor, leaving the court no discretion whatsoever. But, again, that is not what the legislature did.

A similar response must be made to the State’s contention that allowing the court to determine the amount of the reduction would embroil the court in the details of ongoing investigations, jeopardize such investigations, and compromise the status of confidential informants. The same information the court would need to determine the amount of any reduction would also be necessary for the court’s determination of whether to grant a reduction at all and, if so, whether to grant a reduction in the amount requested by the prosecutor or something less. To the extent there would be any difference in the nature and scope of the evidence required, it would be minimal and certainly not of sufficient magnitude to warrant reading into the statute a limitation on the court’s discretion.

We also question whether a system allowing the court to determine the amount of any reduction based on the defendant’s cooperation is really as “unworkable” as the State claims. Judges in federal court have for some time been required to decide the level of any sentence reduction based on the nature and value of the defendant’s assistance in the investigation and prosecution of others. See 18 U.S.C. § 3553(e) (1994) (allowing a sentence below the statutorily required minimum sentence where the defendant has provided “substantial assistance” to authorities, provided such sentence is imposed in accordance with the sentencing guidelines); U.S. Sentencing Guidelines Manual § 5K1.1 (2000) (stating that “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person,” the court may depart from the sentencing guidelines, placing the responsibility to determine “the appropriate reduction” on the court).

In reality, the State is asking this court to limit the district court’s discretion based on the State’s belief that court review of the defendant’s cooperation would hinder law enforcement efforts. But whether court involvement in determining the appropriate reduction of a defendant’s sentence would have undesirable effects on the prosecution of drug offenders is a decision for the legislature to make based on a balancing of the competing interests. Our role is simply “to give effect to the law as written.” Wagner, 596 N.W.2d at 88. The legislature chose not to expressly restrict the court’s power to reduce the defendant’s minimum sentence to the amount requested by the prosecutor; we will not substitute our judgment for that of the legislature on this policy issue.

Finally, we do not think the fact that a reduction is dependent on the prosecutor’s request, thus giving the prosecutor power to prevent any reduction at all, suggests that the prosecutor has the power to dictate the amount of the reduction. It is recognized that “[w]here a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication.” 2B Norman J. Singer, Statutes and Statutory Construction § 55.04, at 388 (6th ed.2000 rev.) [hereinafter “Singer”]. “It is not enough that the power sought to be implied would be convenient or desirable. It must be necessary and essential to carrying out the purpose of the statute.” Mississippi Valley Sav. & Loan Ass’n v. L.A.D., Inc., 316 N.W.2d 673, 675 (Iowa 1982); accord In re Melodic L., 591 N.W.2d 4, 7 (Iowa 1999); 2B Singer § 55.03, at 385 (stating that the “usual standard” for determining whether a statute includes implied “applications and effects” is whether such applications and effects “are necessary, essential, natural or proper” and to meet this standard, “there must be a greater justification for ... inclusion [of the implied power] than a consistency or compatibility with the act from which it is implied”).

We do not believe that it is necessary or essential that the prosecutor have the implied power to determine the amount of any reduction in order for the prosecutor to exercise his or her express power to make the initial determination as to whether the defendant has provided sufficient cooperation to warrant any reduction at all. Even if we assume that such an interpretation of the prosecutor’s role would be consistent with the express terms of section 901.10(2), that fact is not enough to justify expanding the prosecutor’s role in sentencing by implication.

Based on the foregoing analysis, we conclude the district court has the ultimate authority to determine the extent of any reduction in the mandatory minimum sentence imposed on a defendant pursuant to section 124.413 once the prosecutor has requested a reduction based on the defendant’s cooperation. The amount of any such reduction rests in the court’s sound discretion.

IV. Conclusion and Disposition.

When a court has discretion in sentencing, “it must exercise that discretion.” Ayers, 590 N.W.2d at 27. When the court fails to exercise its discretion, the sentence must be vacated and the case remanded for resentencing. Id.

In this case, the court did not exercise its discretion to grant a reduction in excess of that requested by the State. Therefore, we vacate the defendant’s sentence and remand this case for resentencing.

SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

All justices concur except CARTER, J., who dissents.

CARTER, Justice

(dissenting).

I dissent. I would affirm the interpretation of section 901.10(2) that the district court applied.

Because section 901.10(2) grants authority to the prosecution to determine whether the sentence may be reduced below that which is otherwise statutorily prescribed, I submit that this grant of authority logically carries with it the right of the prosecution to condition any recommendation of a lesser sentence by imposing a limit on the extent of permissible sentence reduction.

Even if the majority is correct in its interpretation of the statute the case should not be remanded for a revised sentence. It should be remanded with directions to allow the prosecution to determine anew whether it wishes to make any sentencing concession given the majority’s interpretation of this statute.