author: HARTEN, Judge

text:
    The HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF RICHFIELD, Petitioner, Respondent, v. WALSER AUTO SALES, INC., et al., Appellants.
    No. C8-01-309.
    Court of Appeals of Minnesota.
    July 3, 2001.

      Bradley J. Gunn, Carolyn Veehoff Wol-ski, Leonard Street & Deinard, Minneapolis, MN and Bruce D. Malkerson, Malkerson Gilliland & Martin, L.L.P., Minneapolis (for appellants).

      John M. LeFevre, Jr., Corrine H. Thomson, Joe Yao-Chou Yang, Kennedy & Graven, Chartered, Minneapolis (for respondent).
    Considered and decided by TOUSSAINT, Chief Judge, RANDALL, and HARTEN, Judges.
   OPINION

HARTEN, Judge

The district court granted a quick-take condemnation pursuant to Minn. Stat. § 117.042 (2000) to respondent Housing and Redevelopment Authority for the City of Richfield. Appellants Walser Auto Sales, Inc., Motorwerks, Inc., R.J. Walser, Paul Walser, and Andrew Walser contend that the taking was not authorized by law and was not supported by findings of public purpose and necessity. Respondent alleges that the appeal is moot because it has acquired title to the property. Because we conclude that the appeal is not moot, we address the merits and affirm.

FACTS

Respondent Housing and Redevelopment Authority for the City of Richfield (the HRA) commenced this condemnation action to acquire real property belonging to appellants Walser Auto Sales, Inc., Mo-torwerks, Inc., R.J. Walser, Paul Walser, and Andrew Walser (Walser). Appellants objected to the condemnation petition. The district court held an evidentiary hearing on respondent’s motion for condemnation.

By order dated January 19, 2001, the district court concluded:

(1) That the HRA’s petition is granted and the HRA is authorized by law to acquire the real estate described in its petition herein, as amended, under the procedures specified in Minn.Stat. Chapter 117 (1998) and other law.
(2) That the HRA has shown that the taking is for a public use and purpose, is necessary and convenient in furtherance of a redevelopment project within the City of Richfield, and that the acquisition is required prior to the filing of an award of commissioners.
(3) That the HRA has complied with all the legal requirements for obtaining title and possession pursuant to Minn. Stat. § 117.042 (1998) subject to Wal-sers’ right to remain on the property pursuant to a lease (approved by the Court if the parties cannot agree or other arrangements agreed to by the parties) until 12:00 midnight on June 15, 2001.

Respondent subsequently obtained title to the property by depositing the appraised value of the property with the district court and by recording the required instruments. On February 16, 2001, appellants filed their notice of appeal. Appellants did not seek a stay or post a supersedeas bond to prevent respondent from obtaining title. On March 16, 2001, respondent conveyed title to Best Buy Co., Inc.

While this appeal was pending, respondent moved to dismiss the appeal as moot and appellants moved to expedite the appeal. By special term order, this court denied both motions. The order stated that the opinion addressing the merits of the appeal would also discuss the parties’ motions.

ISSUES

1. Did the district court err in granting the condemnation petition?

a. Was the taking of appellants’ property authorized by law?
b. Was the taking of appellants’ property for a public use and purpose?
c. Was the taking of appellants’ property necessary?

2. Is this appeal moot?

ANALYSIS

1. Condemnation Petition

“Our scope of review in a condemnation case is very narrow.” County of Dakota (C.P.46-06) v. City of Lakeville, 559 N.W.2d 716, 719 (Minn.App.1997) (citing City of Duluth v. State, 390 N.W.2d 757, 763 (Minn.1986)).

Great weight must be given to the determination of the condemning authority, and the scope of review is narrowly limited. If it appears that the record contains some evidence, however informal, that the taking serves a public purpose, there is nothing left for the courts to pass upon. * * * The court is precluded from substituting its own judgment for that of the [public body] as to what may be necessary and proper to carry out the purpose of the plan.

In re Minneapolis Cmty. Dev. Agency (MCDA) v. Opus N.W., L.L.C., 582 N.W.2d 596, 598 (Minn.App.1998) (quoting City of Duluth, 390 N.W.2d at 763 (quoting Housing & Redev. Auth. v. Minneapolis Metro. Co., 259 Minn. 1, 15, 104 N.W.2d 864, 874 (1960))), review denied (Minn. Oct. 29, 1998).

Public purpose and necessity are questions of fact, and the district court’s decisions on these matters will not be reversed on appeal unless clearly erroneous.

MCDA 582 N.W.2d at 599 (citing State by Humphrey v. Byers, 545 N.W.2d 669, 672 (Minn.App.1996)).

a. Taking Authorized by Law

Appellants contend that the taking of their property was not authorized by law because the HRA lacked jurisdiction or authority to bring this condemnation action. However, pursuant to Minn.Stat. § 469.012, subd. 1(6) (2000), the HRA may

acquire real property which it may deem necessary for its purposes, after the adoption by it of a resolution declaring that the acquisition of the real property is necessary to eliminate one or more of the conditions found to exist in the resolution adopted pursuant to section 469.003 * * *.

And in the memorandum of law accompanying its order granting the condemnation petition, the district court stated:

Minn.Stat. § 469.003 states that the HRA may not transact any business or exercise any powers until it has “by resolution, [found] that in the city (1) substandard, slum, or blighted areas exist which cannot be redeveloped without government assistance.” There is no dispute that the HRA was created in 1974 in accordance with Minn.Stat. § 469.003 by adoption of Resolution No. 5238. Thus, when the HRA adopted Resolution No. 771, which included a finding that it was necessary to acquire the Subject Property to eliminate blight and structurally substandard buildings, it authorized a taking whose purpose was to eliminate the conditions found to exist in Resolution No. 5238. Accordingly, pursuant to the express language of MinmStat. § 469.012, subd. 1(6), the Petition should be granted because the HRA was duly created pursuant to Minn.Stat. § 469.003 by virtue of Resolution No. 5238 and the HRA adopted a resolution authorizing acquisition of the Subject Property in order to eliminate conditions that were specified in Resolution No. 5238.

Appellants argue that the taking violated the Minnesota Environmental Policy Act (MEPA), Minn.Stat. Chapter 116D. They contend that the City of Richfield and the HRA “wrongfully took numerous actions, including the HRA’s presentation of its petition for condemnation to the Court, before the environmental review process had been completed.” Appellants rely on Subparts 1 and 2 of Minnesota Rule 4410.3100, which read as follows:

Subpart 1. Prohibitions. If an EAW or EIS is required for a governmental action under parts 4410.0200 to 4410.7500, or if a petition for an EAW is filed under part 4410.1100, a project may not be started and a final governmental decision may not be made to grant a permit, approve a project, or begin a project, until:
A. a petition for an EAW is dismissed;
B. a negative declaration on the need for an EIS is issued;
C. an EIS is determined adequate; or
D. a variance is granted under sub-parts 3 to 7 or the action is an emergency under subpart 8.
Subp. 2. Public projects, prohibitions. If a project subject to review under parts 4410.0200 to 4410.7500 is proposed to be carried out or sponsored by a governmental unit, the governmental unit shall not take any action with respect to the project, including the acquisition of property, if the action will prejudice the ultimate decision on the project, until a petition has been dismissed, a negative declaration has been issued, or until the final EIS has been determined adequate by the RGU or the EQB, unless the project is an emergency under subpart 9 or a variance is granted under subparts 4 to 8. An action prejudices the ultimate decision on a project if it tends to determine subsequent development or to limit alternatives or mitigative measures.

(Emphasis added.)

Respondent correctly points out that appellants have not established any prejudice. Appellants may not establish prejudice with mere allegations; they must present “evidence establishing that the agency’s review was compromised.” In re Univ. of Minnesota, 566 N.W.2d 98, 106 (Minn.App.1997). The district court found no such prejudicial evidence. Instead, it stated:

Now that the final EIS has been determined adequate, there is no reason that the condemnation action should not proceed and the HRA acquire the land. This Court finds Walser’s MEPA argument is moot. The final EIS has been determined adequate; there is no reason the property acquisition may not proceed.

Finally, appellants contend that the HRA failed to comply with the applicable relocation regulations. The district court, however, in finding of fact No. 45, found

[t]hat the relocation services and assistance that the City has provided to the Walsers consists of a letter dated September 13, 2000, from the City’s relocation consultant to Walser Buick Isuzu. The Walsers misinterpreted the letter and ignored it.

The evidence supports this finding; the district court properly rejected appellants’ claims relating to relocation assistance.

We conclude that the district court lawfully approved the taking of appellants’ property.

b. Public Purpose

Appellants argue that the evidence does not support the district court’s finding that the taking serves a public purpose.

[I]n light of the deferential scope of review, this court has construed the words “public use” broadly. Historically, the court has used the words “public use” interchangeably with the words “public purpose,” thus implying that even though • a public entity, using its eminent domain powers, turns over parcels to a private entity for use by that private entity, the condemnation will, nevertheless, be constitutional if a public purpose is furthered by such a transfer of land.

City of Duluth v. State, 390 N.W.2d 757, 763 (Minn.1986).

Minn.Stat. § 469.012, subd. 1(6), authorizes the HRA to condemn real property if it “is necessary to carry out a redevelopment project.” Minn.Stat. § 469.002, subd. 14 (2000), defines a “redevelopment project” as “any work or undertaking” to “acquire blighted areas and other real property for the purpose of removing, preventing, or reducing blight, blighting factors, or the causes of blight.”

In its memorandum of law, the district court stated:

In Resolution No. 771 authorizing the HRA’s use of eminent domain to acquire the Subject Property, the HRA found that it was necessary to acquire the Subject Property in order to “deal with properties that are structurally substandard and to eliminate and prevent the development or spread of conditions of blight found to exist by the City and HRA.” In addition, the Petition alleges that it is necessary and for a public purpose to acquire the Subject Property to implement the Redevelopment Plan, as modified by the Modification and consistent with the findings in HRA Resolution No. 771. Thus, the HRA, by Resolution No. 771 and the Petition, has made a prima facie showing that the acquisition of the Subject Property is necessary for a public purpose.

Appellants, however, contend that the property in question is not a blighted area. Minn.Stat. § 469.002, subd. 11 (2000), defines “blighted area” as

any area with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light, and sanitary facilities, excessive land coverage, deleterious land use, or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community.

Bruce Palmborg, the director of community development for the City of Richfield, testified about the conditions of blight in the project area. Palmborg testified that incompatible land uses, such as the proximity of auto dealerships to residential areas, constituted blight. Palmborg testified that neighborhood residents repeatedly complained about traffic safety concerns caused by the. demonstration driving of cars in the neighborhood and by customers short-cutting through the neighborhood to get to the car dealerships. Palmborg testified that residents also complained of excessive noise, created by APA systems used to contact people out on the car lots, which spilled over into the adjoining neighborhood.

Tom Goodoien, a consultant with over 35 years of experience in conducting building analyses for establishment of redevelopment projects and tax increment financing districts, prepared a report on the commercial properties in the project area. Goodoien concluded:

The building conditions were analyzed to ascertain qualifiers pertinent to Minnesota Statutes ⅜ * *. The commercial spaces are not necessarily obsolete for their present or continued use but are functionally obsolete for commercial spaces serving the public patron and lack certain life safety factors, elements of the Americans with Disabilities Act (ADA) and obsolete mechanical systems essential for quality tenant space.
Also the proposed project area is environmentally “blighted” with many properties exposed to hazardous traffic patterns, merging and “jockeying” vehicles on narrow streets, the existence of diverter barriers and lacking adequate parking facilities (resulting in cars parked on sidewalks) all impeding the smooth flow of traffic in an area lacking adequate infrastructure. Poor interior traffic patterns are addressed inappropriately by using diverter crash walls in main arterial streets, which disrupts and impedes the flow of traffic and prohibits normal snow removal. Many commercial uses are too intense with trucks unloading from the street due to inadequate off street parking causing hazardous conditions to pedestrians, and insufficient space to maneuver trucks.

It is apparent that these conditions constitute obsolescence, overcrowding, and faulty arrangement or design, that are detrimental to the safety and welfare of the community within the definition of blight under Minn.Stat. § 469.002, subd. 11. Moreover, the district court found that Resolution No. 771, the 1993 Redevelopment Plan, the 1999 Modification, all of the staff reports relating to the Modification and Redevelopment Plan, and the “experience and knowledge of staff, council[,] and board members supported the findings that conditions of blight existed in the Project area.” Given the holding in Housing & Redev. Auth. v. Minneapolis Metro. Co., 259 Minn. 1, 7, 104 N.W.2d 864, 869 (1960), that “the acquisition and clearing of blighted areas serve a public purpose,” and the HRA’s statutory authority to condemn the property to eliminate and prevent blight, we conclude that the district court did not clearly err in finding that the taking was for a public purpose.

c. Necessity

Appellants argue that the evidence does not support the district court’s finding that the taking was necessary.

Absolute necessity is not required for a finding of public purpose, rather it is enough to find that the proposed taking is reasonably necessary or convenient for the furtherance of a proper purpose.

MCDA, 582 N.W.2d at 600 (quotations omitted). Appellants contend that “there is no evidence that other alternatives were even explored.” But, “[a] party challenging the necessity of the condemnation of a parcel will not succeed by merely suggesting alternatives to the government’s plan.” Id. (citing City of Duluth, 390 N.W.2d at 766).

Appellants argue that the project was too speculative because permits and approvals still need to be obtained and because the agreement contained contingencies that allowed Best Buy to abandon the project. Appellants rely on the statement in Regents of Univ. of Minnesota v. Chicago & N.W. Transp. Co., that “[s]peculative purposes will not support the assertion of necessity.” Regents of Univ. of Minnesota v. Chicago & N.W. Transp. Co., 552 N.W.2d 578, 580 (Minn.App.1996) (quotation omitted), review denied (Minn. Nov. 20, 1996). But appellants’ reliance is misplaced. In Regents, we held that because the university had “not yet approved a single project for the property,” it could not acquire the property “for speculative future use (stockpiling) by condemnation.” Id. Here, the HRA has identified the Best Buy headquarters as the project for which the property is necessary. Contingencies, such as the permits and approvals remaining for this project, are normal contingencies for a major redevelopment project. See MCDA 582 N.W.2d at 597 (“Public purpose and necessity cannot be thwarted * * * by alleging that the purpose for condemning the property is too speculative if in fact the project is officially supported by the governmental entity and ordinary agreements are in place to realize the project.”). We conclude that the district court did not clearly err in finding that the condemnation was “necessary and convenient in furtherance of a redevelopment project.”

2. Mootness

Respondent argues that this appeal is moot because it acquired title to a fee simple interest in the property and Minn.Stat. § 117.215 (2000) provides that a condemning authority takes a fee simple interest in property for public use “without any right of reversion under any circumstances.” But Minn.Stat. § 117.215 applies if property is taken for a public use. Here, the existence of a public use and the necessity of the taking are at issue and title was acquired through quick-take proceedings. If transfer of title were held to moot any challenge to the public use and the necessity, condemning authorities could insulate those elements from judicial review in quick-take acquisitions. Such a holding would run counter to County of Blue Earth v. Stauffenberg, 264 N.W.2d 647, 649-50 (Minn.1978) (allowing interlocutory appeal of a district court order finding the existence of public necessity).

Stauffenberg also vitiates respondent’s argument that Minn.Stat. § 117.215 precludes a court from directing that title be returned to a condemnee.

Although the taking may be completed when the necessity issue is finally reviewed by [an appellate court], the governmental body which took the disputed property can be compelled to return it to its previous owner.

Id. at 649-50. See also In re Rapp, 621 N.W.2d 781, 784 (Minn.App.2001) (“[although Rapp’s land has been condemned and a highway built across it, Rapp still has relief in the form of the return of the property” (citing Stauffenberg, 264 N.W.2d at 650)).

Respondent also argues that the appeal is moot because appellants’ failure to post a supersedeas bond allowed respondent to acquire title to the property. For purposes of the motion to dismiss, however, the question is whether title can be transferred back to appellants. Therefore, Stauffenberg and Rapp address this aspect of respondent’s argument and indicate that this appeal is not moot.

DECISION

The district court did not clearly err in granting the condemnation petition; its findings that the taking of appellants’ property was authorized by law, was for a public purpose, and was necessary, are supported by the evidence and are not clearly erroneous. The appeal is not moot because property can be ordered returned in the absence of a proper showing of public use.

Affirmed.

      . Appellants’ motion to expedite this appeal was denied for the following reasons. Appellants did not seek a stay or a supersedeas bond. The day of the appeal, respondent acquired title to the property under Minn. Stat. § 117.042. Later, appellants formally moved the district court to stay enforcement of the January 19, 2001, order until June 15, 2001, to preclude transfer of the property to third parties until that time, and to condition a stay on appellants’ posting of a supersedeas bond. The district court (a) ruled that, because title had already transferred to respondent, it lacked jurisdiction to grant a stay; (b) noted respondent's claim that a stay could cause millions of dollars in damages; (c) stated that if the court of appeals concluded the district court had jurisdiction to grant a stay, the appropriate bond amount was $15 million; and (d) stayed its order for 48 hours or until further order of the court of appeals. Instead of seeking relief from the district court's order, appellants, two months later, moved to expedite the appeal, seeking an opinion by "early June [2001].” Absent agreement of the parties, an early-June opinion would not have been final before appellants had to vacate the property on June 15, 2001. Minn. R. Civ.App. P. 136.02. Appeals may be expedited for good cause. Minn.App. Spec. R. Pract. 1. Here, however, appellants have not specifically identified the good cause supporting their request to expedite and any need to expedite could have been avoided if appellants had posted a supersedeas bond when they appealed. Alternatively, appellants could have used the 48-hour window in the district court's order to challenge that order. Appellants did neither. Their motion to expedite is functionally an attempt to circumvent the posting of a supersedeas bond they claim they cannot post but the terms of which they have not challenged. We decline to expedite the appeal under these circumstances.

      . Respondent also alleges Rapp is distinguishable because the lack of briefing of mootness may have resulted in this court not making a fully-considered decision. We decline to hold that Rapp was wrongly decided because it admitted the existence of a remedy which the supreme court had previously indicated was available.


source: Caselaw Access Project

author: KONENKAMP, Justice

license: Public Domain

text:
    2001 SD 84
    CITY OF FREEMAN, A Municipal Corporation under the Laws of the State of South Dakota, Plaintiff and Appellant, v. Richard A. SALIS and Barbara L. Salis, Defendants and Appellees.
    Nos. 21640, 21738.
    Supreme Court of South Dakota.
    Argued May 30, 2001.
    Decided June 27, 2001.
    Rehearing Denied Aug. 14, 2001.

      Dale L. Strasser, Freeman, SD, Michael J. Schaffer of Davenport, Evans, Hurwitz and Smith, Sioux Falls, for plaintiff and appellant.
    Kent E. Lehr, Scotland, for defendants and appellees.
   KONENKAMP, Justice

[¶ 1.] The circuit court dismissed a municipal petition for condemnation, ruling that the city council acted in bad faith and abused its discretion in resolving to condemn private property. Because the challenged conduct in this case cannot be classed as an abuse of discretion or bad faith under SDCL 21-35-10.1, we reverse the dismissal and order reinstatement of the condemnation action.

A.

[¶ 2.] Richard and Barbara Salis own a home in Freeman, South Dakota. In 1996, they paid $1000 for a strip of railroad property adjoining their lot. This three and one-third acre corridor is approximately 100 feet wide and 1300 feet long. It lies north of the Salis home, and its trees form a windbreak. For the Salises, “there’s a lot of enjoyment in [the strip] because of the ... wildlife” and the esthetic vista the trees afford. Running through a section of the strip is a ditch that serves the drainage flow from western Freeman.

[¶ 3.] In the spring of 1997, following a heavy winter snowfall, Freeman experienced substantial flooding. The City hired Vern Arens, a licensed professional engineer, to perform a surface water drainage study. He concluded that the drainage channel on the Salises’ strip needed improvement. Water backed up causing flooding because “trees and shrubs that [are] on the [strip] itself right now [are] a hindrance to the transgressional flow of run-off through the property itself.”

[¶ 4.] With the engineer’s recommendation, the City negotiated with the Salises to clear the drainage ditch of trees and shrubs. Not wanting the City to “clear-cut” the property, the Salises sought to preserve the wildlife and vegetation as much as possible. Their negotiations resulted in a Memorandum of Understanding. The city attorney drafted the document, and the parties signed it on June 15, 1998. For approximately a year after-wards, the City did nothing.

[¶ 5.] In September 1999, a Freeman employee arrived in a payloader with an eight-foot bucket to begin work. His assignment was to “clean the ditch out, anything in the ditch and anything overhanging the ditch into the ditch that was going to hit the loader.... ” City authorities concede that they did not tell their employee about the specific terms of the Memorandum. Nor did they notify the Salises before beginning the work. Richard Salis became aware of the City’s action when his wife told him that she heard branches breaking. He went outside to investigate and saw that the payloader had destroyed trees that he believed were protected under the terms of the Memorandum. He demanded that the employee stop. Since that time, the City has made no further attempts to clear the drainage ditch. Brief negotiations followed.

[¶ 6.] The Salises insisted that the City breached the Memorandum and demanded compensation. In the course of negotiations, they offered to lease the strip of land to the City for twenty-five years for a fee of $35,000. The City rejected a lease, but offered to replace two trees. The Salises found that offer unacceptable. The City then offered to purchase the land for $3000. The Salises responded that they would accept $3000 as damages, would negotiate to clarify the terms of the Memorandum, and would submit the dispute to a mediator. After this, the council passed a resolution of necessity for condemnation. According to the mayor, the City “[did] not want to be here every other year or every third year discussing the Memorandum of Understanding” or “take the risk of being liable for past and possibly future damages.” The council’s resolution for condemnation set aside $3000 for acquisition costs and sought only to take approximately so much of the property as the drainage ditch ran through.

[¶ 7.] In response to the City’s condemnation petition, the Salises answered and counterclaimed for damages. They challenged the City’s right to condemn. Following a hearing, the circuit court found that in passing its resolution of necessity, the City acted in bad faith and abused its discretion under SDCL 21-35-10.1. The judge wrote:

This court finds it offensive that the city can enter into an agreement, fail to live up to the agreement, and then arbitrarily condemn the property. The city demonstrated it was operating in bad faith when it negotiated the agreement, bad faith when it cleared out the ditch and bad faith when it condemned the Salis property.

The court dismissed the petition for condemnation. The City appeals.

B.

[¶ 8.] Before addressing the substantive issues, we must set the standard of review. We have not addressed the standard before, and there exists some confusion in the law on the proper scope of review for condemnation appeals. See Dep’t of the Interior v. 16.03 Acres of Land, 26 F.3d 349, 355 (2nd Cir.1994). A standard deferential to municipal police power seems consistent with the wide discretion afforded to condemning authorities. See SDCL 21-35-10.1. The power of eminent domain embodies an aspect of sovereignty as an “offspring of political necessity.” Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 976, 42 L.Ed. 270 (1897); United States v. Gettysburg Electric Ry. Co., 160 U.S. 668, 681-82, 16 S.Ct. 427, 429-30, 40 L.Ed. 576 (1896). Many federal courts apply an arbitrary and capricious standard in these cases. See 16.03 Acres of Land, 26 F.3d at 355. Likewise, we have long held that in municipal decision making, the scope of review is limited to whether a city acted unreasonably and arbitrarily. Evans v. King, 57 S.D. 109, 230 N.W. 848, 849 (1930); Ericksen v. City of Sioux Falls, 70 S.D. 40, 53, 14 N.W.2d 89, 95 (1944). We believe this standard is mandated by the separation of powers doctrine guiding judicial review of government actions. City of Mobridge v. Brown, 39 S.D. 270, 164 N.W. 94, 94-95 (1917); see Foss v. Spitznagel, 77 S.D. 633, 644, 97 N.W.2d 856, 862 (1959).

[¶ 9.] A city’s resolution of necessity is a governmental policy decision entitled to substantial deference. See generally, 2 Childress and Davis, Federal Standards of Review § 17.04 (discussing the highly deferential review of policy decisions). Consequently, the City of Freeman’s decision should be reviewed under the abuse of discretion standard. On the other hand, we review the circuit court’s decision de novo without any presumption that its ultimate ruling was correct. Filing by GCC License Corp. For Designation as an Eligible Telecomm. Carrier, 2001 SD 32, ¶ 8, 623 N.W.2d 474, 479 (citations omitted); see also City of Jamestown v. Leevers Supermarkets, Inc., 552 N.W.2d 365, 370 (N.D.1996). Of course, the circuit court’s factual findings are examined under the clearly erroneous standard. GCC License Corp., 2001 SD 32, ¶ 8, 623 N.W.2d at 479.

C.

[¶ 10.] Our law vests municipalities with broad authority in deciding when the taking of property is necessary for public purposes. See Basin Electric Power Coop. v. Payne, 298 N.W.2d 385, 386 (S.D.1980) (citations omitted). Necessity is not a judicial question: a city’s decision to condemn is binding absent fraud, bad faith, or an abuse of discretion. See SDCL 21-35-10.1. See also 11 McQuillin, Municipal Corporations 351-353 (3d ed. 2000)(de-scribing the general rule). Challengers shoulder the burden of proving abuse or bad faith and overcoming the strong presumption that the condemnor acted lawfully. Id. at 357; In re Condemnation of Property of Waite, 163 Pa.Cmwlth. 283, 641 A.2d 25, 28 (1994) (citations omitted). In reviewing the Salises’ allegations of bad faith and abuse of discretion, we consider all relevant conditions existing at the time of the resolution of necessity. Sullivan v. City of Ulysses, 23 Kan.App.2d 502, 932 P.2d 456, 457 (1997) (citations omitted).

[¶ 11.] We have yet to examine the concept of bad faith in the context of condemnation proceedings under SDCL 21-35-10.1. The circuit court defined it as “that which imports a dishonest purpose and implies some wrongdoing or some motive of self interest.” Although this definition is accurate for some contexts, it is inadequate as applied to a condemning authority in the exercise of its power of eminent domain. In similar proceedings, bad faith has been more sharply defined as conscious wrongdoing motivated by improper interest, ill will, or dishonest intent. City of Atlanta v. First Nat’l Bank of Atlanta, 246 Ga. 424, 271 S.E.2d 821, 822 (1980)(footnoted information omitted).

[¶ 12.] Courts may not lightly attribute improper motives to cities and their council members where valid reasons exist to support condemnation. Pheasant Ridge Associates Ltd. Partnership v. Burlington, 399 Mass. 771, 506 N.E.2d 1152, 1156 (1987). A municipality acts in bad faith when it condemns land for a private scheme or for an improper reason, though the superficially stated purpose purports to be valid. Id. at 1156. In most instances, of course, this type of bad faith must be shown by circumstantial evidence. Some signifiers include absence of prior interest in the site, failure to act in conformity with usual practices, and indications of intent to use the property for purposes not cited in the resolution. Id. at 1157.

[¶ 13.] Even accepting the circuit court’s factual findings unreservedly, we still cannot hold that the City’s actions constituted bad faith under SDCL 21-35-10.1. The court based its ruling on the following: breaching the Memorandum, failing to inform the employee of the Memorandum’s terms, waiting a year before attempting to clear the ditch, and refusing to go back to the terms of the Memorandum and mediate. The court viewed the mayor’s statement that condemnation proceedings were instituted to avoid present and future liability under the agreement as a mark of bad faith.

[¶ 14.] Breach of the Memorandum does not alone evince bad faith. See generally McKie v. Huntley, 2000 SD 160, ¶¶ 13-15, 620 N.W.2d 599, 603. Nor does delay in clearing the channel establish arrant wrongdoing. Cities are charged with many contract obligations, each exacting an allocation of resources. These are rarely proper subjects for judicial review. An effort to avoid extended litigation or repeated negotiations with the same property owners may prove nothing more than fiscal prudence, rather than bad faith. See Stubbs v. Snyder Township, 25 Pa. Cmwlth. 613, 361 A.2d 464, 465-66 (1976); see also Hendrickson v. Wagners Inc., 1999 SD 74, ¶ 21, 598 N.W.2d 507, 511-12 (impractical remedy to be forced to seek successive relief rather than final resolution).

[¶ 15.] The Salises highlight the City’s breach of the Memorandum and its failure to attempt further resolution as proof of bad faith. We must decide what legal effect the Memorandum had on the City’s ability to later undertake condemnation proceedings. Some jurisdictions, by statute, require authorities to seek a negotiated agreement before condemning property. 11A McQuillin, supra at 219. In those jurisdictions, a failed agreement will not preclude subsequent condemnation. Id. at 222. Although negotiation and agreement are usually preferable to litigation, we have no equivalent statutory requirement. See SDCL 9-27-1; see also Basin Electric Power Coop., 298 N.W.2d at 386 (recognizing that the condemnation proceeding was instituted after failed negotiations). It can hardly be said that failure to continue negotiations denotes bad faith, especially here where the parties arrived at a written understanding but could not agree on the meaning of its terms. Furthermore, to hold otherwise suggests that cities can inadvertently contract away the right to condemn property. See Ericksen, 70 S.D. at 53, 14 N.W.2d at 95 (a city cannot contract away its police power).

[¶ 16.] A hallmark of bad faith in condemnation proceedings is the use of the power of eminent domain for an improper purpose. Clearing the drainage ditch for flood control was always the City’s intent, a valid goal for any community. Cf. Burlington, 506 N.E.2d at 1157; Earth Management, Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455, 460-61 (1981). The Salises do not dispute this necessity. They agreed that vegetation in the channel could “impede the water if growth was there.” The City condemned only so much of the property needed to widen and clear the drainage ditch. From first negotiating the Memorandum to finally resolving to condemn, every action the City undertook was consistent with its intent to clear the ditch as a preventive measure. Following work stoppage at the insistence of the Salises, the parties negotiated for over a month before the City passed its resolution of necessity. During these negotiations, the City offered to purchase the property, but the Salises refused. The City had a lawful public purpose for proceeding with condemnation despite its decision to abandon continued negotiations. Its resolution cannot be classified as bad faith.

D.

[¶ 17.] In addition to bad faith, the circuit court ruled that the City abused its discretion in choosing to condemn. The court found that the City was “angry with threats [by the Salises] to sue it for damages for ... breach of the Memorandum of Understanding.” Thus, the court concluded that the City’s decision violated “fact and logic and evidence not in the exercise of will but perversity of will, not the exercise of judgment but the defiance thereof, not the exercise of reason but rather of passion or bias.” In Basin Electric Power Coop., we recognized the broad discretion granted to condemning authorities. 298 N.W.2d at 386. Such discretion extends not only to findings of necessity but also to selections of location. Id. The City faced competing considerations: continue to negotiate the terms of the Memorandum or condemn the subject property. Without final resolution, petty disputes over how to clear the ditch might persist every year.

[¶ 18.] When condemning authorities face competing considerations, they do not abuse their discretion if their choices are reasonable in light of logic and evidence. Id. at 388. A choice to condemn must grossly violate fact and logic or be wholly arbitrary to support a finding of abuse. Id.; Red River Waterway Comm’n v. Fredericks, 566 So.2d 79, 83 (La.1990) (citations omitted). Considerations of alternative routes, project costs, environmental factors, and safety concerns may indicate that the decision was not arbitrary but within the range of reasonable discretion. Id.

[¶ 19.] To the Salises, the City could have cleared the ditch without resorting to condemnation if it had only continued to negotiate; therefore, the decision to condemn was an exercise of passion and anger instead of reason and logic. Yet it is clear that these parties could not agree on the meaning of the terms in the Memorandum. The Salises “assumed” that overhanging branches would be removed with a “chainsaw,” not an “end loader.” No mention of an agreed method for extraction can be found in the Memorandum. The Salises stood on them position that if the parties proceeded under the Memorandum and they disagreed with the City’s methods, they would prohibit further work.

[¶ 20.] Taking into account these differing interpretations, the City was concerned about “past and possibly future damages” if it attempted to proceed under the original Memorandum. The mayor explained the City’s need for finality as the reason for choosing condemnation: “We do not want to be here every other year or every third year discussing the Memorandum of Understanding or saying the water backed up again.... We want to solve the problem.” Avoiding protracted negotiation or litigation and concerns of expense and public safety assuredly fall within the range of governmental discretion. See Stubbs, 361 A.2d at 465-66 (citations omitted). At best, any suggestion of abuse of discretion can be found only by supposing that anger or impatience animated council members after negotiated attempts to clear the ditch appeared time consuming or futile. These are not sufficient to constitute an abuse of discretion.

E.

[¶ 21.] The circuit court awarded the Salises their costs and attorney’s fees under SDCL 21-35-22. By statute, whenever eminent domain proceedings are dismissed with or without prejudice the party seeking condemnation becomes liable for such expenses. Because we reverse the decision of the circuit court, we also reverse the award of costs and fees. For the same reason, we deny the Salises’ request for appellate attorney’s fees.

[¶ 22.] Reversed and remanded with instructions to reinstate the condemnation action.

[¶ 23.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . The Memorandum of Understanding provided in part:
      The owners allow the City to enter upon the premises to clean the existing drainage channel by removing any growth in the channel, removing any overhanging branches, limbs and fallen trees over the channel so as to allow water to flow freely through the channel and exiting the owner's property.
      The City will not remove any growth on the south side of the channel but can remove any dead trees and branches that may be in the channel that lays or leans across to the south side of the channel.
      The owners allow the City to remove any dead trees and branches on the north side of the channel. The owners also allow the City to remove any growing trees or shrub that is less than 3 inch in diameter.

      . See generally David E. Gilbertson, Condemnation of Agricultural Land in South Dakota, 20 SDLRev 623 (1975).

      . The Supreme Court of Oregon enunciated a similar standard: "[w]hether there was an abuse of discretion [in condemnation proceedings] is a question of law for the court.” Port of Umatilla v. Richmond, 212 Or. 596, 321 P.2d 338, 351 (1958). That court also concluded that it was not bound by a trial court finding that the challenged taking was in excess of the condemning authority’s needs. Id. Cf. Commonwealth v. Taub, 766 S.W.2d 49, 52-53 (Ky.1988)(reviewing trial court’s determination of abuse of discretion or bad faith under a clear error standard).

      . The circuit court found that the City destroyed some trees intended to be preserved under the Memorandum of Understanding. However, the Salises' claim for compensation for breach of contract is not at issue in this appeal.


author: MILLER, Chief Justice.

text:
    2001 SD 88
    Ann PETTRY, Plaintiff and Appellant, v. RAPID CITY AREA SCHOOL DISTRICT, Linda Hanson and Gerald Kammerer, Defendants and Appellees.
    No. 21669.
    Supreme Court of South Dakota.
    Argued March 19, 2001.
    Decided July 3, 2001.

      Michael J. Simpson of Groves, Julius & Simpson, Rapid City, SD, Attorneys for plaintiff and appellant.

      Karla Engle of Tieszen Law Office, Pierre, SD, Attorneys for defendants and appellees.
   MILLER, Chief Justice.

[¶ 1.] In this appeal, we hold that the circuit court erred in granting a summary judgment to the Rapid City Area School District and two of its maintenance workers (collectively referred to as “the District”) on the grounds of assumption of the risk, in an action claiming negligent maintenance of a parking area at the District’s Canyon Lake Elementary School. We reverse and remand.

FACTS

[¶ 2.] Pettr/s son had attended the Canyon Lake School from grades one through six. As a result, she had made numerous trips to the school over the years for reasons related to her son’s education and school activities. At approximately 7:00 p.m. on the evening of January 23, 1998, Pettry traveled to the school to attend her son’s basketball game. The day had been clear and very cold and, while it had not snowed that day, there was an accumulation of snow on the ground from previous storms. As Pettry approached the school, she saw that its parking lot was full and that the surrounding streets were dark, icy and snow-packed. Pettry had a knee injury from a prior automobile accident and, while the injury had healed, she remained concerned about slipping and falling and wanted to park close to the school rather than in the street. Seeing that a number of cars were already parked in the school’s graveled playground area, and knowing from previous expérience that people frequently parked in that area during school functions, Pettry proceeded to park in that location.

[¶ 3.] As Pettry pulled into the playground, she saw that there was also ice and snow packed on its surface, but she was able to park within a few feet of the entrance to the gym. She got out of her ear and proceeded to walk on the playground’s surface to a concrete area directly in front of the gym doors. As she walked, Pettry again noticed the playground was snow-packed and icy and she made a special effort to walk carefully in her flat-soled rubber shoes, watching where she was stepping. With these precautions, she was able to enter the gymnasium without incident.

[¶ 4.] After the game, Pettry left the gymnasium through the same doors she had used to enter the facility. She also followed the same path back to her car that she had taken to enter the gym. A number of other people were following a similar route. This time, however, Pettry lost her footing, slipped and fell on her back and slammed the back of her head on the ground. Several individuals assisted Pettry and accompanied her back into the gymnasium and into the ladies’ room where she became sick and vomited. Another parent eventually drove her home and she continued to vomit throughout the night. Pettry has continued to experience various incidents of pain and discomfort since her fall and has frequently experienced severe headaches that have interfered with her ability to function in her employment.

[¶ 5.] Pettry commenced this negligence action against the District. The circuit court granted the District’s motion for summary judgment grounded on a claim of Pettry’s assumption of the risk of falling in the playground. She appeals.

ISSUE

[¶ 6.] Did the circuit court err in granting the District summary judgment?

[¶ 7.] Because the circuit court determined, as a matter of law, that Pettry assumed the risk of falling in the playground, our standard of review is clear.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the' trial court, affirmance of summary judgment is proper.

Milligan v. Waldo, 2001 SD 2, ¶ 8, 620 N.W.2d 377, 379 (quoting Kaiser v. North River Ins. Co., 2000 SD 15, ¶ 6, 605 N.W.2d 193, 195).

This Court has repeatedly stated that “[qjuestions of negligence, contributory negligence and assumption of the risk are for the jury in all but the rarest of cases so long as there is evidence to support the issues.” “It is only when reasonable men can draw but one conclusion from facts and inferences that they become a matter of law and this rarely occurs.”

Pierce v. City of Belle Fourche, 2001 SD 41, ¶ 22, 624 N.W.2d 353, 356-57 (citations omitted).

[¶ 8.] The three prong test for assumption of the risk was summarized in Mack v. Kranz Farms, Inc., 1996 SD 63, ¶ 9, 548 N.W.2d 812, 814:

A defendant must show the plaintiff: (1) had actual or constructive knowledge of the risk; (2) had an appreciation of its character; and (3) voluntarily accepted the risk, having had the time, knowledge, and experience to make an intelligent choice. Assumption of the risk is an affirmative defense and failure to establish any one of the above three criteria is fatal, (citations omitted).

Here, we focus our inquiry on the third prong of the test: i.e., did Pettry voluntarily accept the risk, having had the time, knowledge, and experience to make an intelligent choice?

[¶ 9.] Whether a plaintiff has voluntarily accepted a risk largely depends on the existence of a “reasonable alternative course of conduct” open to the plaintiff to avert harm to himself. See Mack, 1996 SD 63 at ¶ 15, 548 N.W.2d at 815. See also Goepferi v. Filler, 1997 SD 56, ¶ 12, 563 N.W.2d 140, 144 (acceptance of risk necessarily connotes attention to reasonable alternatives). This standard is derived from Restatement of Law (Second) Torts, § 496E, p. 576 (1965) which provides in full:

(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.
(2) The plaintiff’s acceptance of a risk is not voluntary if the defendant’s tortious conduct has left him no reasonable alternative course of conduct in order to
(a) avert ham to himself or another, or
(b) exercise or protect a right or privilege of which the defendant has no right to deprive him. (emphasis added).

[¶ 10.] The record provides conflicting arguments as to whether Pettry had a reasonable alternative available to her in making her way into the school gymnasium. The District implies she could have parked in the street and safely walked a block to the school and that, instead, because it was more convenient and closer to the gymnasium, she chose to park in the riskier playground area. That, however, is not a fair characterization of Pettry’s testimony. On the very pages of her deposition referenced in the District’s brief, she testified as follows:

Q Now, you said that the parking lot was full and you didn’t want to park in the street because it was icy.
A Right. And it was pretty crowded. I would have had to walk quite a — a considerable distance if I would have parked in the street. I would have probably had to walk a block or more.
Q You said the street was icy.
A Right.
Q Tell me about that.
A It was just icy, snowpacked.
Q Snowpacked and icy on the entire road surface?
A I don’t remember specifically. I would say patches.
Q So there were patches of snoiv and ice?
A Right.
Q And you saw the patches of snow and ice as you were driving up to Canyon Lake?
A Right.
Q And that gave you concern about whether [or] not you might slip and fall?
A Yes. Plus it was dark.
Q It was dark but you could still see these patches of snow and ice?
A Well, there were street lights, my headlights, and I generally don’t like to walk very far in unknown conditions.
Q So you knew that when you drove into the playground area?
A Yes.
Q Seeing that it was snowpacked and icy, why did you park there?
A Because it was closer.
Q Because it was closer to the gym?
A Right. It was closer to any location I could have parked, closer to the gym.
Q And so — that’s where you were headed, was the gym?
A Yes.
Q So rather than parking on the street you chose to park on the playground because it was closer to the gym?
A Yes.
Q Were there any parts of the playground that were less snowpacked than others?
A I didn’t notice. It was dark. I couldn’t really see.
Q Could you tell whether the playground had been plowed at all?
AI didn’t notice.
Q So you don’t know one way or the other?
A I don’t know, (emphasis added).

[¶ 11.] This testimony, viewed in a light most favorable to Pettry, indicates that the alternatives confronting her on the night of her fall were to park in the dark, icy street and walk a block or more to the gymnasium or to park in the dark, icy playground and walk only a few steps to the gymnasium. If these were the alternatives, her choice of the shorter course was, arguably, the more reasonable selection. Given the conflicting arguments, and evidence as to whether Pettry had a reasonable alternative available to her, we hold that the issue of whether she voluntarily accepted the risk in this case presented a jury question. See Mack, supra.

[¶ 12.] Reversed and remanded.

[¶ 13.] AMUNDSON, KONENKAMP and GILBERTSON, Justices, and SEVERSON, Circuit Judge, concur.

[¶ 14.] SEVERSON, Circuit Judge, for SABERS, Justice, disqualified.


author: TERNUS, Justice.

text:
    STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR MONROE COUNTY, Defendant.
    No. 00-0271.
    Supreme Court of Iowa.
    July 5, 2001.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Steven E. Goodlow, County Attorney, for plaintiff.
    Christine E. Branstad of Hopkins & Hu-ebner, P.C., Des Moines, for defendant.
   TERNUS, Justice.

This case is a certiorari action brought by the State challenging the district court’s authority to sentence Clyde Gul-lion, a class “B” drug felon, to a ten-year indeterminate prison term. Upon our review, we think the court misconstrued Iowa Code section 901.10(1) (1999). Contrary to the district court’s interpretation of this statute, it does not permit the court to reduce the twenty-five-year indeterminate sentence normally imposed for class “B” felonies pursuant to Iowa Code section 902.9(1). Rather, as the State asserts, section 901.10(1) only authorizes the court to reduce the mandatory one-third minimum term that a person convicted under Iowa Code section 124.401(1)® must serve. See Iowa Code § 124.413 (requiring that a person convicted under section 124.401(1)® serve a minimum of one-third of the maximum indeterminate sentence imposed by law). Because the district court had no power to sentence the defendant to a ten-year indeterminate sentence, we sustain the writ of certiorari, vacate the defendant’s sentence, and remand the case for resentencing.

I. Background Facts and Proceedings.

Gullion, the defendant in the underlying criminal case, pled guilty to a charge of possession of a schedule II controlled substance (methamphetamine) with the intent to deliver in violation of Iowa Code section 124.401(1)(6)(7), a class “B” felony. At sentencing, the defendant argued that the court had discretion under section 901.10(1) to decrease the twenty-five-year indeterminate sentence required by section 902.9(1) if it found mitigating circumstances. The defendant also claimed the court had discretion to reduce the mandatory one-third minimum term that the defendant must serve by one-third based on the defendant’s guilty plea. See Iowa Code § 901.10(2) (allowing, under specified circumstances, reduction of mandatory minimum sentence that defendants charged with certain crimes are required to serve). Over the State’s objection, the district court sentenced the defendant to a ten-year indeterminate sentence, and reduced the mandatory minimum time that the defendant must serve by one-third in view of the defendant’s guilty plea.

The State filed a petition for writ of certiorari, challenging the authority of the court to impose the reduced sentence. The State argues in this court that section 901.10(1) allows a reduction of the mandatory minimum term that certain drug offenders must serve, but does not permit a reduction of the overall sentence.

II. Scope of Review.

“Certiorari is a law action to determine whether a tribunal ... has exceeded its jurisdiction or otherwise acted illegally.” Polk County Sheriff v. Iowa Dist. Ct., 594 N.W.2d 421, 423 (Iowa 1999). Our scope of review depends upon the nature of the issues raised in the certiorari proceeding. See id. This court reviews a district court’s interpretation of a statute for correction of errors of law. See State v. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d 575, 578 (Iowa 2000). Because the determinative issue in this case is the district court’s interpretation and application of section 901.10(1), we review for legal error.

III. Applicable Sentencing Statutes.

The defendant pled guilty to a violation of section 124.401(1)(6)(7), a class “B” felony. This statute requires that a violator be sentenced pursuant to section 902.9(1), which dictates a twenty-five-year sentence for class “B” felons. In addition, section 902.3 provides that the sentence for a class “B” felony must be indeterminate. The defendant’s sentence is also subject to. section 124.413, which states:

A person sentenced pursuant to section 124.401, subsection 1, paragraph ... “6” ... 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.

Iowa Code § 124.413. Probation is not an option available to the court. See id. § 907.3(1)(⅛) (providing that court may not place the defendant on probation if the defendant’s offense is a violation of section 124.401(1)(6)). When these statutes are considered together, it is apparent that they require the defendant to be sentenced to an indeterminate twenty-five-year prison term of which he must serve a mandatory minimum one-third before he is eligible for parole. See generally State v. Rodgers, 560 N.W.2d 585, 587 (Iowa 1997) (holding that “[u]nder the general indeterminate sentencing statute, a sentencing judge must impose an indeterminate sentence for the full statutory maximum”).

Nonetheless, the parties agree that the legislature has provided for the modification of this sentencing scheme for some first time offenders. The sentencing statute permitting such modification is section 901.10, which states:

901.10 Imposition of mandatory minimum sentences.
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 “6”, 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. The fighting issue in this case is whether section 901.10(1) gave the district court discretion to reduce the maximum indeterminate sentence applicable to the defendant’s offense, or only the mandatory minimum term that the defendant must serve.

IV. Discussion.

“The primary purpose of statutory construction is to determine legislative intent.” State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000); accord State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000) (“The polestar of statutory interpretation is the intent of the legislature.”). The court gleans this intent from the words used by the legislature. See McCoy, 618 N.W.2d at 325; State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997). The court does “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); accord State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981) (“when a statute is plain and its meaning is clear, courts are not permitted to search for meaning beyond its expressed terms”). “Although the title of a statute cannot limit the plain meaning of the text, it can be considered in determining legislative intent.” T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 163 (Iowa 1999). In addition, “legislative intent is to be gleaned from the statute as a whole, not from a particular part only.” De More v. Dieters, 334 N.W.2d 734, 737 (Iowa 1983).

The specific statutory language at issue here is the provision that “[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....” Iowa Code § 901.10(1) (emphasis added). A mere reading of the quoted language leads us to the initial thought that the words “the statute” must reference the only statute identified in section 901.10(1), namely, the statute under which the person was convicted — either section 124.406, section 124.413, or section 902.7. It is significant that each statute referenced in section 901.10(1) is a statute that requires a defendant to serve a certain portion of his or her indeterminate sentence. See id. §§ 124.406(l)(a) (requiring adult defendant convicted of distributing drugs to minor to serve “a minimum term of confinement of five years” and, if distributed within a certain distance of a school, to serve “a minimum confinement of ten years”), 124.413 (stating that person convicted of a drug offense under section 124.401(1)(6) is not eligible for parole until person “has served a minimum period of confinement of one-third of the maximum indeterminate sentence”), 902.7 (requiring person committing a forcible felony using a dangerous weapon to “serve a minimum of five years of the sentence imposed by law”). It appears, therefore, that when the legislature states in section 901.10(1) that the court may sentence a person “to a term less than provided by the statute,” the legislature is referring to the mandatory minimum term of confinement prescribed by one of the statutes specifically referenced in section 901.10(1).

This initial impression is supported by a review of the original statute adopted by the General Assembly in 1985. Senate File 213, which was enacted into law, included not only the text of the statute, but the title, “IMPOSITION OF MANDATORY MINIMUM SENTENCES,” as well. 1985 Iowa Acts ch. 41, § 1 (codified at Iowa Code § 901.10 (Supp.1985)). Thus, the section heading appearing in the Code, “Imposition of Mandatory Minimum Sentences,” indicates the legislature’s intent to address the subject of mandatory minimum sentences, not indeterminate sentences.

Finally, a review of the entire statute also supports this interpretation. Section 901.10(2) provides that “[notwithstanding subsection 1,” a person convicted of a methamphetamine offense is not entitled to “any reduction of sentence unless the defendant pleads guilty.” The word “notwithstanding,” in this context, means “despite.” See Merriam Webster’s Collegiate Dictionary 795 (10th ed.1993). Thus, in spite of what is allowed in subsection 1 concerning “reduction of sentence,” subsection 2 sets up additional requirements for defendants convicted of a methamphetamine offense before such defendants may receive a “reduction in sentence.” See Iowa Code § 901.10(2). It is apparent that both subsections refer to the same “sentence.” Significantly, in limiting the possible reduction of sentence under subsection 2, the legislature specifically refers to “the mandatory minimum sentence” and limits any reduction to one-third of that sentence. Id. § 901.10(2) (emphasis added). We think that when the statute is considered as a whole it is clear that the subject of both subsections is the mandatory minimum sentence imposed by the referenced statutes, not the indeterminate sentence required by the general sentencing statutes.

V. Summary and Disposition.

Iowa Code section 901.10(1) allows a sentencing court to reduce the mandatory minimum sentence otherwise required by section 124.401, section 124.413, or section 902.7, if mitigating circumstances exist and it is the defendant’s first conviction subject to one of these statutes. It does not permit the court to lessen the indeterminate sentence imposed by law. Thus, the most favorable sentence to which the defendant in this case is entitled is an indeterminate twenty-five-year sentence with a mandatory minimum term of one-third, subject to a possible reduction of the mandatory minimum term by no more than one-third.

The district court here exceeded its authority by sentencing the defendant to a term less than the twenty-five-year indeterminate sentence required by section 902.9(1). As a consequence, the defendant’s sentence is illegal and void. See State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995) (“An illegal sentence is one not authorized by statute; it is void.”). Therefore, we sustain the State’s petition for writ of certiorari, vacate the defendant’s sentence, and remand the case for resen-tencing.

WRIT SUSTAINED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

      . All references in this opinion to "the defendant” are to Gullion, the real party in interest, rather than to the nominal defendant, the Iowa District Court.

      . The defendant also pleaded guilty to possession of ephedrine in violation of section 124.401(4), a class "D” felony. He was sentenced to a five-year indeterminate sentence on this charge. Neither his conviction nor sentence with respect to this offense is challenged on appeal.

      . The State does not contest on appeal that under section 901.10(2) the defendant may receive up to a one-third reduction in the mandatory minimum term to be served, provided the defendant's current conviction is his first conviction subject to section 124.413 and there are mitigating circumstances present. Although the parties disagreed at the sentencing hearing as to whether the defendant’s current conviction was his first subject to section 124.413, that issue is not raised on appeal.


author: CADY, Justice.

text:
    PATTISON BROTHERS MISSISSIPPI RIVER TERMINAL, INC., Plaintiff, v. IOWA DISTRICT COURT FOR CLAYTON COUNTY, Defendant.
    No. 99-0553.
    Supreme Court of Iowa.
    July 5, 2001.

      John W. Holmes of Holmes <& Holmes, Waterloo, for plaintiff.
    Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, and Kevin C. Clefisch, County Attorney, for defendant.
   CADY, Justice.

This case requires us to determine whether the district court properly refused to quash a county attorney’s subpoena issued under Iowa Rule of Criminal Procedure 5(6). We consider the appeal as a petition for writ of certiorari and conclude the motion to quash was properly overruled by the district court.

I. Background Facts and Proceedings.

Pattison Brothers Mississippi River Terminal, Inc. (Pattison) operates two grain terminals on the Mississippi River in Clayton County, Iowa. Grain is delivered to the terminals by truck, and is then shipped by barge or train to other locations.

The trucks which deliver the grain to the terminals are weighed by Pattison both before the grain is unloaded and after. After delivery is made, Pattison gives the truck driver a scale ticket listing the quantity and grade of the grain delivered. The truck drivers who deliver grain to the terminal usually do not own the grain but are hired by the owner to deliver it to the terminal. Consequently, Pattison gives each driver additional copies of the scale ticket for the employer of the driver and the owner of the grain. Pattison keeps the original copy of the scale ticket for its records.

Each scale ticket is issued in the name of the owner of the grain. It does not identify the driver of the truck unless more than one driver delivers grain for the same owner. When that occurs, Pattison places the first name of the driver on the ticket. Additionally, the scale ticket does not identify the type of vehicle driven by the customer or the vehicle identification number. Truck drivers do not sign the scale tickets.

On December 18, 1998, the Clayton County attorney issued a subpoena duces tecum to Pattison, commanding its officers, employees, or agents to testify in a criminal proceeding against Keith D. Knox, Lee Alan Berns, and Donald John Baade. The subpoena also directed Pattison to produce any “load receipts and weights related to and involved with” the three men for the year 1998. The three men were truck drivers who regularly delivered grain to Pattison’s terminals. All three drivers had previously been charged with violations of Iowa’s legal weight limits for trucks.

Pattison filed a motion to quash the subpoena with the district court. Donald, Lee, and Keith joined Pattison’s motion.

At the hearing before the district court, the county attorney explained his purpose in filing the subpoena. Curt Reinhardt, an Iowa Department of Transportation (DOT) enforcement officer, informed the county attorney that he believed the three truck drivers had been engaging in consistent flagrant weight limit violations while hauling grain to the Pattison terminals. Reinhardt suggested the county attorney subpoena the terminal’s records. When the county attorney issued the subpoena, he intended to accommodate Pattison in the production of the records by having Reinhardt assist Pattison’s employees in locating the applicable documents. The investigation by the county attorney was limited to Donald, Lee, and Keith, and the subpoena only sought records that would indicate weight limit violations of 3000 pounds or greater.

Pattison raised two objections to the subpoena. It argued that the county attorney did not have the authority to obtain Pattison’s private scale tickets for the purpose of detecting violations of the weight limit laws. It also argued that it could not reasonably comply with the subpoena because the scale tickets it kept did not contain the drivers’ last names and often did not contain any identification of the drivers. Pattison believed it could not readily determine what tickets conformed with the mandates of the subpoena.

The district court denied the motion to quash and Pattison filed an appeal to this court. Pattison argues the county attorney was without authority to issue the subpoena and that Pattison cannot reasonably comply with the subpoena. The State asserts that the denial of the motion to quash is not a final order and Pattison has no right to appeal. Alternatively, the State argues the district court properly denied the motion.

II. Jurisdiction.

We must first determine our jurisdiction to consider this case. Iowa Rule of Criminal Procedure 5(6) authorizes the issuance of a county attorney’s subpoena and subpoena duces tecum in an investigation by the county attorney of a criminal offense. However, there is no specific rule or statute permitting a subpoenaed witness who moves to quash the subpoena or subpoena duces tecum to appeal the denial of the motion by the district court when the witness is not a defendant in the criminal proceeding.

In Bousman v. Iowa District Court, 630 N.W.2d 789 (Iowa 2001), decided on this date, we found this same lack of a procedural mechanism for appeal by a person subject to a nontestimonial identification order under Iowa Code chapter 810 limited judicial review to a petition for writ of certiorari under Iowa Rule of Appellate Procedure 301. See Bousman, 630 N.W.2d at 794. Not only is this form of review available under our rules prior to the final disposition of the case, it is less disruptive to the ongoing criminal investigation by the county attorney than an appeal, and gives us more control over our dockets. See McKeever v. Gerard, 368 N.W.2d 116, 118 (Iowa 1985) (“available regardless of the finality of a judgment”). It is the proper mechanism for review of an order by the district court denying a motion to quash a county attorney’s subpoena. Thus, when an appeal should have been filed as a certiorari proceeding, we are authorized to proceed to consider the appeal as though it was properly filed as a certiorari action. Iowa R.App.P. 304.

We recognize that a writ of cer-tiorari is proper when the plaintiff alleges the district court exceeded its jurisdiction or acted illegally. State Pub. Defender v. Iowa Dist. Ct., 594 N.W.2d 34, 36 (Iowa 1999). An illegal act exists when the challenged court order lacks substantial support in the evidence or is not supported by the proper rule of law. Allen v. Iowa Dist. Ct., 582 N.W.2d 506, 508 (Iowa 1998).

In Bousman, we found that certiorari was proper because the other avenues for appellate review required predicate litigation. Without certiorari, Bousman could obtain judicial review only if criminal charges were ultimately filed against him or if he appealed from a contempt order for failing to comply with the nontestimo-nial identification order. We also observed that Bousman challenged the order on legal and constitutional grounds.

Similarly, Pattison has no practical means of judicial review without cer-tiorari. It is not the subject of a potential criminal action. Thus, judicial review would be limited to an appeal from a contempt citation. See Church of Scientology of California v. United States, 506 U.S. 9, 18 n. 11, 113 S.Ct. 447, 452 n. 11, 121 L.Ed.2d 313, 322-23 n. 11 (1992); Allen, 582 N.W.2d at 508-09. Yet, an appeal of a discovery order through a challenge to a contempt proceeding is impractical for a litigant who is a disinterested third party to the underlying dispute and lacks a sufficient stake in the outcome of the underlying case to risk contempt. See Church of Scientology of California, 506 U.S. at 18 n. 11, 113 S.Ct. at 452 n. 11, 121 L.Ed.2d at 322-23 n. 11; In re Pruett, 133 F.3d 275, 281 n. 10 (4th Cir.1997). Thus, potentially harsh and unfair results await a disinterested third party who challenges a discovery order through a contempt proceeding. This type of risky review for a disinterested third party supports review by writ of original certiorari. See Shannon by Shannon v. Hansen, 469 N.W.2d 412, 414 (Iowa 1991) (review of refusal to grant protective order to state patrol was by certiorari because state patrol was not a party to the underlying action). Additionally, the grounds for review raised by Pattison are framed in terms of a Fourth Amendment challenge. This also makes the case particularly appropriate for certiorari review. See McKeever, 368 N.W.2d at 118. Accordingly, we grant the petition for writ of certiorari and proceed to consider the merits of the challenge to the subpoena duces tecum.

Our review is at law. See Matlock v. Weets, 531 N.W.2d 118, 121 (Iowa 1995). A district court is given discretion to refuse to quash a subpoena. Exotica Botanicals, Inc. v. Term Int’l, Inc., 612 N.W.2d 801, 804 (Iowa 2000). Reversal is warranted only if the grounds relied on by the district court are clearly unreasonable or untenable. Id.

III. Reasonable Compliance.

One common ground raised in motions to quash is that the subpoena violates the protections afforded the subjected individual by the Fourth Amendment. Courts employ a three-prong test in determining whether a subpoena satisfies the Fourth Amendment doctrine:

(1) the investigation must be for a lawfully authorized purpose although no specific crime need be charged; (2) the documents sought must be relevant to the inquiry; and (3) the items to be produced must be described in a manner permitting the object of the subpoena to properly respond with reasonable effort.

State v. Kelley, 353 N.W.2d 845, 847 (Iowa 1984) (citation omitted); see Oklahoma Press Publ’g Co. v. Walling, 327 U.S. 186, 208-09, 66 S.Ct. 494, 505-06, 90 L.Ed. 614, 629-30 (1946); 2 Wayne R. LaFave, Search and Seizure § 4.13(a), at 726-27 (3d ed.1996) [hereinafter LaFave]. Courts must consider subpoenas which are attacked on Fourth Amendment grounds on a case-by-case basis. In re Grand Jury Subpoena Duces Tecum, 834 F.2d 1128, 1133 (2d Cir.1987); see 2 LaFave § 4.13(a), at 727 (court must examine the particular circumstances of the case in determining whether the Fourth Amendment has been violated). Thus, we will examine each prong of the test to determine if the subpoena in this case complies with the Fourth Amendment protections.

A. Lawful Purpose.

Courts rarely, if ever, quash a subpoena on the grounds that it was issued for an unlawful purpose. See 2 LaFave § 4.13(a), at 728 (“the Fourth Amendment requirement of an authorized investigative purpose is a virtual nullity”). This is because the lawful purpose criterion is satisfied when the county attorney is engaged in a bona fide criminal investigation. Kelley, 353 N.W.2d at 848. The county attorney in this case was involved in a lawful criminal investigation. The three named truck drivers had been previously charged with flagrant overweight violations, and they were suspected of committing this same offense on other occasions. To substantiate his suspicions, the county attorney chose to subpoena the records from the business where the three drivers regularly delivered grain. In issuing the subpoena to Pattison, the county attorney was merely exercising his general investigatory powers. See Kelley, 353 N.W.2d at 848; Chidester v. Needles, 353 N.W.2d 849, 852 (Iowa 1984).

Pattison attempts to refute the lawfulness of the investigation by arguing the DOT is not authorized under Iowa Code section 321.465 and section 321.476 (1997) to obtain Pattison’s scale tickets because Pattison did not consent to the use of its private scales and records. We need not address Pattison’s argument concerning the authority of the DOT. The county attorney may investigate any crime, whether or not an agency such as the DOT would be so empowered.

B. Relevancy.

The documents sought from Pattison by the county attorney were clearly relevant to the investigation. See Oklahoma Press Publ’g Co., 327 U.S. at 209, 66 S.Ct. at 506, 90 L.Ed. at 630; Kelley, 353 N.W.2d at 848. Trucks delivering loads to Pattison’s terminals are weighed both before and after the loads are emptied. The scale tickets issued to the customers list the quantity of the grain delivered. By examining these documents, the county attorney may be able to determine whether the truck drivers were hauling grain in excess of the legal weight limits. If the scale tickets show weight limit violations, the county attorney can use the tickets as a basis for pursuing criminal proceedings against the guilty drivers. The subpoena satisfies the relevancy requirement.

C. Description of Items.

To comply with the third requirement of particularity, the subpoena must adequately describe the documents to be produced to permit the object of the subpoena to adequately respond. Oklahoma Press Publ’g Co., 327 U.S. at 209, 66 S.Ct. at 506, 90 L.Ed. at 630; Kelley, 353 N.W.2d at 849. The description must be sufficiently specific so that the person can determine what documents are sought under the subpoena. 2 LaFave § 4.13(d), at 737. Yet, the subpoena need not describe with exact detail the specific documents to be produced. Oklahoma Press Publ’g Co., 327 U.S. at 209, 66 S.Ct. at 506, 90 L.Ed. at 630; In re Tax Liabilities, 866 F.2d 1015, 1020-21 (8th Cir.1989); see In re Grand Jury Subpoena, 630 F.Supp. 614, 620 (D.N.C.1986); 2 LaFave § 4.13(d), at 737. On the other hand, the subpoena must not be so broad that compliance would be unduly burdensome. 2 LaFave § 4.13(d), at 737. We recognize that questions regarding adequacy of the specificity of the subpoena vary “in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publ’g Co., 327 U.S. at 209, 66 S.Ct. at 506, 90 L.Ed. at 630.

Our review of the subpoena in this case reveals the description of the items sought is clear and specific. The subpoena seeks the load and weight records of three specific individuals. The problem in producing the records is not actually due to the description contained in the subpoena, but to the manner in which Pattison maintains its records. Pattison does not normally identify scale tickets by the name of the driver, and when the driver’s name is listed, the scale ticket only refers to the first name of the driver. Thus, the record keeping procedure of Pattison, not the description contained in the subpoena, makes it difficult for Pattison to comply with the subpoena.

Notwithstanding, it is appropriate to consider the willingness of the county attorney to assist the subject of the subpoena in complying with the subpoena when determining the particularity of the description of the document sought. See In re Subpoenas Duces Tecum, 51 F.Supp.2d 726, 737 (D.Va.1999) (United States Attorney “offered a compromise schedule for production of the requested documents”); see also 2 LaFave § 4.13(e), at 749 (ordering investigative body to inspect subpoenaed documents on its own would minimize burden of compliance). Based on the hearing on the motion to quash the subpoena in this case, it is clear the county attorney desires to work with Pattison in locating the requested documents and is willing to provide assistance in searching through the records. Moreover, it appears the description contained in the subpoena could be modified to accommodate Pattison’s record keeping practices if it chose not to accept the county attorney’s assistance. Additionally, it is apparent that other agreements could be fashioned. See Dir. of the Office of Thrift Supervision v. Ernst & Young, 786 F.Supp. 46, 52 (D.D.C.1992).

IV. Conclusion.

Considering the willingness of the county attorney to assist Pattison in complying with the subpoena, we conclude the subpoena sufficiently described the objects to be produced and the district court acted properly in denying the motion to vacate. We annul the writ of certiorari and affirm the decision of the district court.

WRIT ANNULLED.