text:
    2004 ND 109
    Roland C. RIEMERS, Plaintiff and Appellant v. Deputy Paul ANDERSON, Sheriff Michael Crocker, State’s Attorney Stuart A. Larson, Traill County, Trooper David Pulju, Defendants and Appellees Patrolman Paul Borud, and City of Mayville, Defendants.
    Nos. 20030317, 20030318.
    Supreme Court of North Dakota.
    June 3, 2004.

      Roland C. Riemers, Grand Forks, N.D., pro se.
    Ronald F. Fischer (argued) and Michael E. Scurry, Pearson Christensen, Grand Forks, N.D., for defendants and appellees Deputy Paul Anderson, Sheriff Michael Crocker, State’s Attorney Stuart A. Larson, and Traill County.
    Douglas Alan Bahr, Solicitor General, Attorney General’s Office, Bismarck, N.D., for defendant and appellee Trooper David Pulju.
   MARING, Justice.

[¶ 1] Roland C. Riemers appealed a district court memorandum decision and order for judgment denying his motions for default judgment and summary judgment, granting defense motions for summary judgment, dismissing his complaints, and awarding costs and disbursements in his actions against Traill County Deputy Sheriff Paul Anderson, Traill County Sheriff Michael Crocker, Traill County State’s Attorney Stuart Larson, the City of May-ville, Patrolman Paul Borud, and Trooper David Pulju. We conclude one claim is barred by the doctrine of collateral estop-pel and the other has not been shown to have any basis in law or fact, and we affirm.

I

[¶ 2] On March 4, 2000, Riemers and his then-wife, Jenese A. Peters-Riemers, had an argument as Peters-Riemers was attempting to leave the marital residence with their son. Riemers broke a finger when he struck Peters-Riemers, fracturing a bone in Peters-Riemers’ face. Riemers was arrested for assault. Peters-Riemers was not arrested.

[¶ 3] In 2003, Riemers sued Anderson, Crocker, Larson, Pulju, Borud, and the City of Mayville, alleging that, in responding to the altercation on March 4, 2000, officers “did ... falsely arrest Plaintiff for assault and failed to arrest the assaulter, Plaintiffs wife Jenese Peters-Riemers.” Riemers further alleged:

4. That Officer Defendants ignored Plaintiffs injuries and domestic abuse and did not report, nor did they provide, or see that a physician provided, information regarding a domestic violence assault to the Plaintiff as required by N.D.C.C. 43-17-41. As a result, Plaintiff was not provided mandated assistance for his domestic abuse. Said denial due to sexual discrimination as well as lack of training by said officers by Respondent Superiors.
5. As a result of Plaintiffs arrest he was subsequently falsely prosecuted (KOO-78) by Stuart Larson, States Attorney for the County of Traill. And on 24 April 2001 Plaintiff entered an Alfred plea of no-contest (rather than an admission to the facts underlying the crime in order to avoid the high cost of a jury trial).
6. As a result of this false arrest, lack of reporting and failure to arrest Jenese, on 14 March 2000 a Temporary Protection Order was placed against Plaintiff, and on 10 April 2000 one year Protection Order was placed against Plaintiff.
7. These orders, and various proceedings, resulted in Plaintiff being declared a domestic abuser and losing considerable assets, property, good reputation, custody and visitation with his infant son. As well as the denial of community resources for his domestic abuse and the infliction of severe emotional pain and distress on himself and his children from Jenese.
8. That Sheriff Michael Crocker, States Attorney Stuart Larson, the County of Hillsboro, and the City of Mayville, as Respondents Superior, have equally and separately been negligent in this matter by failing to provide said officers under their control the training and policies required for domestic abuse as required under N.D.C.C. 14-07.1-14.
9. As a result of such torturous or illegal acts, Plaintiff and his children have suffered the infliction of emotional pain, he has been falsely prosecuted for assault and domestic violence, sexually discriminated against, loss due process and equal protection rights under the state and federal constitutions, loss property, loss consortium with children, denied needed community domestic violence services, had attorney fees and legal costs, and loss reputation. For this Plaintiff asks judgment of $550,000 in compensatory damages and $10,000,000 in nominal damages, together, equally and separately against the Defendants. Plus any and all other remedies under tort, law or equity Plaintiff may be entitled to including but not limited to attorney fees, costs, and disbursements.

[¶ 4] Riemers also commenced another lawsuit against Crocker and Traill County, alleging he was arrested for assault on March 4, 2000, and incarcerated at the Traill County jail without being convicted of a crime. Riemers further alleged:

4.During the time of incarceration Plaintiff was not segregated from convicted persons or given better treatment appropriate to his status as an un-convicted person, or treated with humanity and respect by the jail staff and was also forced to wear an orange prison uniform.
5. Such treatment being a violatioh of Plaintiffs human rights as a non-convicted person under Part III, Article 10(1 & 2) of the International Covenant on Civil and Political Rights.
6. As a result of such denial of human rights Plaintiff suffered the infliction of emotional pain; was denied timely and needed community domestic violence and medical services; incurred additional attorney fees and legal costs; and suffered loss of reputation. For this Plaintiff asks a judgment of. $1,000 in compensatory damages and $10,000 in nominal damages, equally and separately, against the Defendants. Plus any and all other remedies under law or equity he may be entitled to including attorney fees, costs, and disbursements.

' [¶ 5] The trial court issued an order consolidating the two cases. The trial court issued an order dismissing Patrolman Paul Borud and the City of Mayville, in accordance with a stipulation of the parties. The trial court also issued an order for judgment dismissing Riemers’ complaint against Pulju and the State, finding, among other things, that Pulju was sued in his official capacity as a Highway Patrol Officer; therefore, the lawsuit was against the State. The court ruled it lacked jurisdiction over either the State or Pulju, individually, because Riemers “did not effectuate service of the Summons and Complaint” on either the State or Pulju. The court also determined it lacked jurisdiction over the State because Riemers failed to present a written notice to the director of the office of management and budget within 180 days after his alleged injury, as required by N.D.C.C. § 32-12.2-04(1).

[¶ 6] On September 3, 2003, the trial court issued a memorandum decision and order for judgment denying Riemers’ motions for default judgment and summary judgment, granting the Traill County defendants’ motions for summary judgment, ordering entry of a judgment dismissing Riemers’ complaints against the Traill County defendants, and awarding them their costs and disbursements. Defense affidavits averred Riemers was provided medical care before being incarcerated, and the trial court found Riemers provided “absolutely no evidence that he suffered from any serious injury that was not properly attended to while he was incarcerated for roughly 41 hours.” The trial court further explained, among other things:

Of note, at the July 31, 2003 hearing Riemers indicated that probable cause existed to arrest and prosecute him for committing domestic violence on March 4, 2000. His complaint against the Traill County Defendants is apparently that they did not also arrest and prosecute Jenese for committing domestic violence. However, this Court notes that the North Dakota Supreme Court reviewed and rejected Riemers allegation that Jenese had also committed domestic violence in the subject March 4, 2000 incident....
With respect to Riemers’ allegation in Civil No. 49-03-C-0035 that his stay at the Traill County jail amounted to a violation of the International Covenant on Civil and Political Rights (“ICCPR”), Part III, Article 10 (1 & 2), ..., the ICCPR does not provide a legal basis for Riemers to pursue claims for civil damages against the Traill County Defendants.

[¶ 7] The court ruled that the state’s attorney’s decision to prosecute Riemers and the decision to not prosecute Jenese Peters-Riemers were subject to absolute prosecutorial immunity and that any claims against the Traill County defendants that were “not foreclosed by the doctrine of absolute prosecutorial immunity” were “barred by the doctrines of qualified immunity and/or statutory immunity under North Dakota law.”

[¶ 8] On November 3, 2003, Riemers filed a notice of appeal from the trial court’s September 3, 2003, memorandum decision and order for judgment. A judgment was entered on September 9, 2003.

II

[¶ 9] Riemers has raised the following issues on appeal:

A. Traill County Jp9-0S-C-0003I (sexual bias in arrest, civil rights, etc.)
Did the Court err in granting the defendants’ motion for summary judgment:
1. By ruling that the defendants had immunity for their actions?
2. By ruling on the issues of malicious prosecution, false imprisonment, and two year statute of limitations instead of civil right denials?
3. By granting summary judgment without first allowing Riemers any discovery or to amend his complaint?
4. By denying Riemers his state constitutional right to a remedy for the injuries he suffered from the Defendants’ biased and unlawful behavior?
5. By consolidating the two cases after first allowing Traill County to file consolidated motions and pleadings?
6. By dismissing Trooper Pulju from the law suit?
7. By awarding costs and disbursements to the Defendants?
8. By ruling on the admissibility of evidence contrary to Rule 56?
B. Traill County J/.9-03-C-00035 (rights of non-convicted under ICCPR)
1. Did the Court err by denying Riemers summary judgment, but granting summary judgment to the Defendants?

Ill

[¶ 10] This appeal comes to us in the posture of an appeal from a summary judgment, which we have recently addressed:

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Whether summary judgment was properly granted is a question of law which we review de novo on the entire record. On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e). Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion.

Zuger v. State, 2004 ND 16, ¶¶ 7,8, 673 N.W.2d 615 (citations omitted).

A.

[¶ 11] With the exception of the issue he raised with regard to costs and disbursements, we need not address the issues Riemers has raised in his action based upon the decision to arrest and prosecute him, but not his former wife, in connection with the incident that occurred on March 4, 2000, because the issues upon which this action is based have been decided and may not now be relitigated.

[¶ 12] “Courts bar relitigation of claims and issues to promote the finality of judgments, which increases certainty, discourages multiple litigation, conserves judicial resources, and avoids wasteful expense and delay.” Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶ 23, 583 N.W.2d 377. “[C]ollateral estoppel, or issue preclusion, generally forecloses the relitigation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit.” Reed v. University of N.D., 1999 ND 25, ¶ 9, 589 N.W.2d 880 (quoting Hofsommer v. Hofsommer, 488 N.W.2d 380, 383 (N.D.1992) (citations omitted)).

[¶ 13] In earlier litigation, the trial court had determined Riemers committed domestic violence and Peters-Riemers did not. In Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197, cert. denied, 537 U.S. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003), we affirmed a judgment dissolving the marriage of Riemers and Peters-Riemers. Riemers’ domestic violence and Peters-Riemers’ alleged domestic violence were addressed at length in the opinion. The trial court made findings about Riemers committing domestic violence against Jenese Peters-Riemers, in connection with the incident on March 4, 2000, which we held were supported by the evidence. Id. at ¶ 15. Riemers asserted the trial court erred in finding he committed domestic violence, but Peters-Riemers did not. We concluded the trial court’s findings were supported by the evidence. Id. at ¶ 16. Thus, the basis for Riemers’ suit—that he was falsely arrested for assault and his former wife should have been, but was not, arrested-—was previously litigated and determined, precluding Riemers from relitigating those issues. Because Riemers was collaterally estopped from relitigating those issues, we need not address the issues he has raised in his action based upon the decision to arrest and prosecute him, but not Peters-Riem-ers. We do not answer questions unnecessary to the determination of an appeal. Cass County Joint Water Res. Dist. v. 1.43 Acres of Land, 2002 ND 83, ¶ 39, 643 N.W.2d 685; Heald v. Strong, 24 N.D. 120, 131-34, 138 N.W. 1114, 1119-20 (1912).

B. Costs

[¶ 14] The judgment entered awarded costs and disbursements of $256.20. Riemers contended the maximum amount awarded should have been $5. Crocker, Anderson, Larson, and Traill County requested that the matter be remanded to the trial court for determination. Under N.D.R.App.P. 35(a)(3), we remanded this case to the trial court for determination of objections to costs and disbursements. On remand, the trial court awarded the defendants statutory fees of $10 under N.D.C.C. § 28-26-02, $100 for filing fees under N.D.C.C. § 28-26-10, and $96 for copying costs of 960 pages at $0.10 per page under N.D.C.C. § 28-26-06, for a total cost and disbursement award of $206. An amended judgment of dismissal was entered on April 13, 2004. An award of costs under N.D.C.C. § 28-26-02 is discretionary. See Lemer v. Campbell, 1999 ND 223, ¶ 11, 602 N.W.2d 686. An award of costs under N.D.C.C. § 28-26-10 is discretionary. Uren v. Dust-Tex, Inc., 2002 ND 81, ¶ 31, 643 N.W.2d 678. A trial court’s decision on an award of disbursements under N.D.C.C. § 28-26-06 will be overturned only if an abuse of discretion is shown. Braunberger v. Interstate Eng’g, Inc., 2000 ND 45, ¶ 14, 607 N.W.2d 904. An abuse of discretion is never assumed; the burden is on a party seeking relief to affirmatively establish it. Jundt v. Jurassic Res. Dev. of North America, L.L.C., 2003 ND 9, ¶ 10, 656 N.W.2d 15. From our review, we conclude Riemers has not shown that the trial court abused its discretion in awarding costs and disbursements.

C.

[¶ 15] Riemers’ second action is based upon his treatment while incarcerated in the Traill County jail and “is based solely on the denial of his civil rights as a non-convicted person under the International Covenant on Civil and Political Rights (kere-in-after “ICCPR”), U.N.T.S. No. 14688 (1976).”

[¶ 16] “[T]he treaty was ratified with numerous reservations conforming the United States’ obligations under the ICCPR to the requirements of the Constitution, and with the declaration that the ICCPR is not self-executing. Accordingly, this treaty does not create a private cause of action in United States courts.” Flores v. Southern Pern Copper Corp., 343 F.3d 140, 164 n. 35 (2nd Cir.2003) (citations omitted). See also Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 348 (5th Cir.2002), cert. denied, 537 U.S. 1241, 123 S.Ct. 1374, 155 L.Ed.2d 212 (2003) (“the treaty is not self-executing and Congress has not enacted implementing legislation”); Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir.2001) (ICCPR is not self-executing, and Congress has not enacted implementing legislation); Beazley v. John son, 242 F.3d 248, 267 (ICCPR “is not self-executing”).

[¶ 17] Riemers has neither drawn our attention to any decisions construing or applying the covenant, nor provided persuasive reasoning showing it was either applicable to or violated by his incarceration in the Traill County jail. Riemers has, therefore, not shown that his complaint has any basis in fact or law.

D.

[¶ 18] We conclude the trial court did not err in denying Riemers’ motions for default or summary judgment or in granting the defendants’ motions for summary judgment, or in dismissing Riemers’ complaints and awarding costs and disbursements.

IV

[IT 19] Affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

      . Riemers has attempted to appeal from the court’s memorandum opinion. As we noted in another appeal by Riemers, a memorandum opinion is not appealable, but "an attempted appeal from a memorandum opinion will be treated as an appeal from a subsequently entered consistent judgment, if one exists." Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 4 n. 2, 660 N.W.2d 558. As in that case, a consistent judgment was subsequently entered, and we treat this as an appeal from that judgment.


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2004 SD 57
    STATE of South Dakota, Plaintiff and Appellee, v. Timothy Wayne MIDGETT, Defendant and Appellant.
    No. 22857.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2004.
    Decided April 28, 2004.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Reed Rasmussen of Siegel, Barnett and Schütz, Aberdeen, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Timothy Midgett was convicted of second degree rape. He appeals his conviction and the denial of a motion for new trial. We reverse and remand.

Facts and Procedural History

[¶ 2.] The incident in dispute occurred on March 14, 2002, when K.R.B. was at the apartment of a friend named S.A. K.R.B. planned to stay overnight watching movies, TV, and listening to music. S.A. lived with her mother and brothers on the top floor of the apartment building. Midgett lived on the bottom floor of that same apartment building. Both S.A. and K.R.B. had met Midgett before. Midgett often visited S.A.’s apartment to use their phone or borrow movies.

[¶ 3.] From this point, Midgett’s and KR.B.’s versions of the events differ markedly. K.R.B. testified that she first saw Midgett around 7 p.m. that evening when he came to S.A.’s apartment to borrow movies. K.R.B. saw Midgett a second time when he returned to S.A.’s apartment for other movies. K.R.B. testified that the final encounter occurred around 11 p.m., when S.A. and K.R.B. were getting ready for bed. S.A. allegedly asked K.R.B. to go down to Midgett’s apartment to retrieve the movies.

[¶ 4.] K.R.B. went to Midgett’s apartment. According to K.R.B., when Midgett opened the door, she asked him for the movies, and Midgett insisted that K.R.B. come in. K.R.B. testified that she said no, but Midgett gave her “a shove on the shoulder, a light shove” into the apartment and shut the door. K.R.B. asked Midgett for the movies again, and he told her that he had some in his bedroom. K.R.B. asked Midgett for the movies so she could leave. Midgett, however, told her to “just come and get ‘em” and gave her another light shove. K.R.B. testified that she followed Midgett into his bedroom and was forcibly raped.

[¶ 5.] S.A.’s mother immediately called the police when K.R.B. returned from Mid-gett’s apartment. Law enforcement arrived and commenced an investigation. K.R.B. was taken to the hospital and examined in the emergency room. A doctor determined that there was physical evidence consistent with sexual activity within a fairly recent period of time. Testing specimens from a “rape kit” revealed no evidence of semen or saliva. Midgett’s boxer shorts and his sheets also revealed no blood, hairs, or fluids.

[¶ 6.] Midgett was interviewed by the police as a part of this investigation. Mid-gett’s version of the events was quite different from K.R.B.’s. He denied having any sexual relations with K.R.B. He did, however, allege that when K.R.B. came to his apartment, she moved to the bed and told him that she came down to give him sex. Midgett then told Detective Duven that K.R.B. had instructed Midgett to get a condom, but when he got up to look for one, K.R.B. “disappeared.” Duven testified that Midgett wondered “how the heck she got out of [the] apartment without him knowing it.”

[¶ 7.] At trial, in an attempt to discredit K.R.B., Midgett claimed to have been involved in a prior sexual relationship with her. Midgett claimed that their relationship resulted in a pregnancy and abortion. He contended that the alleged abortion gave K.R.B. “a motive to have revenge, to fabricate a story.”

[¶ 8.] The jury found Midgett guilty of second degree rape. He appeals, raising the following issues for review:

1.Whether the trial court erred in allowing the jury, during its deliberations, to view a videotaped interview of Midgett that was neither played during trial nor admitted into evidence.
2. Whether the trial court erred in admitting, K.R.B.’s statements made to law enforcement officers in their investigation.
3. Whether the trial court erred in admitting a bloodstained tissue when the source of the blood was not determined in a timely manner.
4. Whether the trial court erred by admitting photographs of children’s clothing taken in Midgett’s residence.
Analysis and Decision
[¶ 9.] 1. Whether the trial court erred in allowing the jury, during its deliberations, to view a videotaped interview of Midgett that was neither played during trial nor admitted into evidence.

[¶ 10.] After Midgett’s apartment was searched, he was taken to the police department and interviewed. The interview was videotaped, and both parties’ positions on the admissibility of the videotape changed during trial.

[¶ 11.] Before any evidence was presented, Midgett took the position that the videotape, with a small redaction, should be shown to the jury rather than allowing Detective Duven to testify about Midgett’s statements. The State, however, told the court that it did not intend to introduce the tape as evidence. The trial court subsequently prohibited admission of the videotape. However, the court ruled that “if the defendant makes a decision to testify and is subject to cross-examination about what he said on the tape then I don’t think there’s any issue as to the tape being admitted into evidence or played for the jury.”

[¶ 12.] During Detective Duven’s testimony in the State’s case-in-chief, and over Midgett’s objection, Duven was permitted to testify to Midgett’s statements on the videotape. Duven also testified that the videotape would corroborate his testimony and that the tape was the best evidence of the statements. The State, however, continued to object to the introduction of the tape unless Midgett testified.

[¶ 13.] After Duven testified, the parties had another exchange concerning the videotape. Midgett offered it into evidence, and the State again objected. As it did before, the court ruled that the videotape could not be shown to the jury unless Midgett testified.

[¶ 14.] After Midgett did testify, he unexpectedly changed his position on the admissibility of the videotape. Although the State indicated that it would no longer object to its admission if Midgett wanted to offer the tape as evidence, Midgett asked for time to re-consider this offer. When the proceedings resumed the following day, Midgett changed his position and informed the court that he no longer wished to have the tape played.

[¶ 15.] However, during Midgett’s cross-examination, he testified inconsistently with statements on the videotape: specifically, Midgett denied telling Duven that he had never had sex with K.R.B. prior to the day of the alleged offense. Consequently, Duven was recalled to rebut this denial. As a part of that rebuttal, the State asked to play two portions of the videotape reflecting Midgett’s denial of previous sexual relations with K.R.B. As a part of this offer, the entire videotape was marked as “Exhibit 4,” but “Exhibit 4” was not admitted into evidence. Instead, the parties engaged in the following discussion only agreeing to display “portions” of the tape to the jury:

STATE: Detective Duven, I’m showing you what’s been marked as State’s Exhibit 4 for identification, do you recognize this?
DUVEN: Yes, I do.
STATE: What is it?
DUVEN: It’s a videotape of my interview of Tim Midgett.
STATE: And at this time, Your Honor, we’d like to play portions of the videotape. We have no objection if defense counsel would like to show all of the videotape. But we have a couple of portions we’d like to show the members of the jury.
COURT: Is there any objection to the admission of the videotape at this time?
MIDGETT: No, Your Honor.
STATE: In which form, Randy?
MIDGETT: Just portions.

Following this discussion, no formal ruling was made admitting “Exhibit 4.” However, there is no dispute that only the two rebuttal portions then at issue were actually displayed to the jury.

[¶ 16.] After both sides had rested, and after four and one-half hours of deliberation, the jury asked to see the “whole videotape.” Midgett objected, stating that he “would object to the showing of the tape to the jury other than the parts that were actually published to the jury at the time that the trial was going on.” The trial court, however, incorrectly ruled: “it does appear to the [c]ourt that the tape and I believe it was Exhibit 4 was admitted into evidence in its entirety.” Therefore, the court permitted the jury to view the entire tape, without comment from any party, witness or attorney.

[¶ 17.] In permitting the jury to view the videotape, the trial court relied on State v. Smith, 1998 SD 6, 573 N.W.2d 515. However, Smith is inapposite. In Smith, a videotaped statement of a defendant was admitted into evidence during trial and was taken to the jury room as an exhibit. Because there was no tape player in the jury room, the jury asked for equipment to view the videotaped statement during its deliberations. We held that a properly admitted videotape of a defendant’s statement could be replayed during jury deliberations.

[¶ 18.] Midgett’s case is readily distinguishable. Although Smith■ “permits a jury to replay videotaped confessions during deliberations!,]” it must be properly admitted videotape evidence. Id. ¶ 19. In Midgett’s case, only two small portions of the videotape were admitted into evidence. Therefore, under Smith, only the two “properly admitted” portions of Midgett’s videotape could have been replayed for the jury in its deliberations. It was an error of law to permit the jury to review other videotape evidence that had never been admitted. See id. ¶ 18 (noting that SDCL 23A-25-7 only permits a jury to take exhibits “which have been received as evidence in the case” into deliberations).

[¶ 19.] The State, however, argues that there was no error in showing the entire tape under the “doctrine of completeness.” State v. Beynon, 484 N.W.2d 898, 904 (S.D.1992). As we noted in Bey-non, SDCL 19-9-13 (Fed R Evid 106) provides: “When a writing or recorded statement or part thereof is introduced by a party, an adverse .party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Id. (emphasis added). Here, however, the remaining portions of the videotape were never introduced into evidence to explain the two admitted portions. Therefore, while Rule 106 and the doctrine of completeness may have permitted the introduction of the entire videotape during the trial, such an introduction never occurred. Because the introduction of the remaining portions of the videotape never occurred, the remaining portions could not have been considered by the jury under the doctrine of completeness.

[¶ 20.] The State finally argues that Midgett has not shown prejudice from the jury’s consideration of this non-admitted evidence. We disagree. We first note that this case turned on K.R.B.’s and Mid-gett’s credibility. We also note that the non-admitted portions of the videotape were highly prejudicial. This evidence was prejudicial because it had “the capacity to persuade by illegitimate means.” State v. Knecht, 1997 SD 53, ¶ 12, 563 N.W.2d 413, 419 (citations omitted). It included Midgett’s statements admitting lust, the use of pornography, and sexual arousal. It also included statements: that Midgett was the prime suspect; that there was blood on his sheets (even though there was trial evidence to the contrary); that Midgett agreed with Duven that K.R.B. had been forcibly raped; that a doctor concluded K.R.B. was forcibly raped; and Duven’s opinion that Midgett was lying. Significantly, Midgett had no opportunity to explain or even comment upon any of this highly incriminatory evidence. Allowing the jury to consider such non-admitted evidence was prejudicial error that requires reversal.

[¶21.] 2. Whether the trial court erred in admitting K.R.B.’s statements made to law enforcement officers in their investigation.

[¶ 22.] Although we reverse on issue one, we discuss issue two for guidance on remand.

[¶ 23.] K.R.B. was the State’s first witness. She testified about the events of the night in question, and alleged that Midgett raped her. After her testimony, the State called Officer Barvels. Barvels was asked to testify about the statements K.R.B. made to him in his investigation. Midgett objected on the grounds of hearsay. After an unreported bench conference, Midgett was granted a standing hearsay objection. Barvels was then permitted to repeat KR.B.’s out-of-court statements.

[¶ 24.] Detective Duven was also asked to repeat statements K.R.B. made during his investigation. Midgett again objected on the grounds of hearsay. The trial court overruled the objection because “the witness has already testified and I believe it falls under the exception.” The court later noted that it was relying on SDCL 19-16-2 (prior consistent statements) in allowing the detectives to testify about what K.R.B. had told them in their investigation.

[¶ 25.] SDCL 19-16-2(2) (Fed R Evid 801(d)(1)(B)) “allows the admission of out-of-court statements as nonhearsay, if the statements are consistent with the declar-ant’s in-court statements and are offered to rebut an express or implied charge of recent fabrication or improper motive.” State v. Thompson, 379 N.W.2d 295, 296 (S.D.1985). The rule provides:

A statement is not hearsay if the declar-ant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive[.]

SDCL 19-16-2(2) (Fed R Evid 801(d)(1)(B)).

[¶ 26.] This hearsay exception is, however, rather narrow. Prior consistent statements are generally excluded because they are irrelevant until the witness’s credibility has been attacked. State v. Devall, 489 N.W.2d 371, 376 (citing Thompson, 379 N.W.2d at 297). Therefore, prior to admission, the trial court must make a number of preliminary determinations. State v. Moriarty, 501 N.W.2d 352, 357 (S.D.1993).

Before a prior consistent statement will qualify as nonhearsay under the rule, the proponent must demonstrate three things. First, [the proponent] must show the prior consistent statement is consistent with the [witness’s] in-court testimony. Second, [the proponent] must establish that the statement is being used to rebut an express or implied ' charge against the witness of recent fabrication or improper motive or influence. Finally, the proponent must demonstrate that the prior consistent statement was made prior to the time the supposed motive to falsify arose.

Thompson, 379 N.W.2d at 296 (citing United States v. Quinto, 582 F.2d 224 (2dCir.l978)).

[¶ 27.] Here, the State cannot demonstrate the second and third prerequisites. Even if the prior statements were “consistent” with KR.B.’s in-court testimony under the first prerequisite, there is no evidence they were made prior to, and offered to rebut, a charge of recent fabrication or improper motive under the second and third prerequisites. On the contrary, these statements were made to the two officers after the alleged improper motive to fabricate arose; i.e. they were made after the alleged abortion. Because the statements were made after the alleged motive to fabricate arose, they were not probative to corroborate KR.B.’s trial testimony. As we previously noted:

Substantive use under Rule 801(d)(1)(B) is limited to situations where high probative value is most likely. Evidence which counteracts the suggestion that the witness change[d][her] story in response to some threat or scheme or bribe by showing that [her] story was the same prior to the external pressure is highly relevant in shedding light on the [witness’s] credibility. Evidence which merely shows that the witness said the same thing on other occasions when [her] motive was the same does not have much probative force ‘for the simple reason that mere repetition does not imply veracity.’

State v. Carlson, 392 N.W.2d 89, 91 (S.D.1986) (quoting 4 J. Weinstein & M. Berger, Weinstein’s Evidence 801-150-151).

[¶28.] The State, however, submits that the trial court’s ruling can be supported by other grounds, and that the trial court “may have reached the right result albeit based on the wrong reason.” See Bohlmann v. Lindquist, 1997 SD 42, ¶ 9, 562 N.W.2d 578, 580. The State specifically argues that the officers’ statements fall within the “fact of the complaint” rape exception recognized in Derail. Under that exception to the hearsay rule, some limited out-of-court declarations are admissible to prove that a complaint of rape was made. Devall, 489 N.W.2d at 375. The State also argues that the statements were contemporaneous and excited utterances, which were made when K.R.B. was “still under the stress of the event.” Id. at 380 (Miller, C.J., dissenting).

[¶ 29.] We first address the “fact of the complaint” hearsay exception recognized in Derail. Id. In that case, this Court explained the exception and the reasons for it, stating:

Generally, the testimony of a witness cannot be bolstered or supported by showing that a witness made similar statements out of court in harmony with her testimony on the stand. M. Graham, Handbook of Federal Evidence § 801.12, at 760 (3rd ed 1991). There is an exception to this rule in rape cases which permits testimony to prove [a] complaint was made.
‘Since it is natural for a woman or child to complain to someone responsible for her welfare of an outrage of this character, the failure to complain could be urged by the defense to contradict or discredit her testimony. Because of this[,] cases generally allow the prosecution to forestall such discrediting, or any inference derived from failure to complain, by admitting testimony of the fact of the eomplaint[.]’

Id. at 375 (quoting State v. Thorpe, 83 S.D. 499, 162 N.W.2d 216, 218 (S.D.1968) (further citations omitted)). However, this Court cautioned that:

[T]he rule allows no further proof than that fact [that the complaint was made] and possibly proof of what was said as to the name of the guilty party. ‘It does not permit testimony of the third party relating what the complaining witness said as to the details of the offense[.]’

Id. (citations omitted). This Court further cautioned that[t]he rape complaint exception is limited to testimony that in fact [a] complaint was made, not to show the truth of the matter asserted.” Id. (citations omitted).

[¶ 30.] Here, many of the statements violate these restrictions. Some of the statements involved the details of the offense, and some were offered to prove the truth of the matter asserted.

[¶ 31.] The statements may also fail to qualify as excited utterances unless they relate “to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition[.]” Id. at 374 (quoting SDCL 19-16-6). The problem here is that the trial court did not determine whether each statement at issue was made under the stress of excitement caused by this event. Although the State argues that officer Barvels indicated K.R.B. “seemed to—appeared to be shaken,” he also testified that she “just seem[ed] hesitant about coming over to talk to me. [She] just kind a stayed back.” Therefore, while K.R.B. may have been under the requisite stress of excitement when she made some of the statements to Barvels, we cannot, from the State’s limited citation to the record, make that assessment for all the statements. Moreover, the State has not cited any “stress of excitement” evidence supporting the admission of the other investigative statements made to officer Duven.

[¶ 32.] The State finally argues that KR.B.’s statements were admissible as contemporaneous or res gestae declarations. SDCL 19-16-5 provides:

A statement describing or explaining an event or condition made while the de-clarant was perceiving the event or condition, or immediately thereafter, is not excluded by § 19-16-4, even though the declarant is available as a witness.

However, as in the preceding analysis, the trial court did not make the requisite “contemporaneous” finding. Therefore, we cannot make the admissibility determination from this record.

[¶ 33.] We reverse on Issue 1, and remand for new trial and a re-consideration of the remaining evidentiary issues. In light of the remand, we need not reach Midgett’s remaining issues.

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

      . Appellate counsel was not Midgett’s attorney at trial.

      . This ruling is not an issue on appeal. We express no opinion on it.

      . The State suggests that Midgett’s agreement to admit "just portions” may have been intended to mean that all of the videotape was admitted, excepting only "the portions” that were earlier agreed to be redacted. We disagree. First, we note that there was no trial court ruling admitting "Exhibit 4” in its entirety. Second, the State has conceded on appeal that there was a "misunderstanding by the trial court” in believing that it had admitted the entire exhibit. Third, there is no dispute that only the two rebuttal portions were actually displayed to the jury. Finally, the jury itself understood that only part of the videotape had been admitted. The jury's note asking for the entire videotape acknowledged that "the State did not bring it up or 'admit it’ into court[.]”

      . On March 8, 2004, the United States Supreme Court held that "testimonial” out-of-court statements, admissible under a hearsay exception, are nevertheless barred by the Confrontation Clause unless the witness is unavailable and the defendant had an opportunity to cross-examine the witness concerning those statements. Crawford v. Washington, - U.S. -, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004) (overruling the "firmly rooted” and "expressly reliable” tests of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597). However, Crawford expressly noted that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Id. at n. 9 (citing California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)). "The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Id. Because Crawford was decided after appellate briefing was completed, but before this matter was considered by this Court, counsel have not had the opportunity to argue whether the statements were admissible because K.R.B. was "available” for confrontation within the meaning of footnote nine. Therefore, we also leave this issue for the trial court's consideration on remand.


author: SABERS, Justice.

text:
    2004 SD 58
    Thomas BURGARD, as Personal Representative for the Estate of Anton Burgard, Deceased, Plaintiff and Appellant, v. BENEDICTINE LIVING COMMUNITIES, d/b/a Aberdeen Living Center, Defendant and Appellee.
    No. 22994.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2004.
    Decided April 28, 2004.

      Mark A. Anderson of McNeary & Anderson Aberdeen, South Dakota, Attorneys for plaintiff and appellant.
    Reed Rasmussen of Siegel, Barnett and Schütz, Aberdeen, South Dakota, Attorneys for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Thomas Burgard, the personal representative for the estate of Anton Bur-gard, brought suit against Aberdeen Living Center (ALC) for wrongful death and medical malpractice. ALC filed a motion for summary judgment and the trial court granted the motion. Burgard appeals, arguing that our decision in Peterson v. Burns, 2001 SD 126, 635 N.W.2d 556, should be applied prospectively only. The trial court held that the decision applied retroactively. We affirm.

FACTS

[¶ 2.] Anton Burgard had hip surgery on May 14, 1999. Three days after the surgery, he fell in his hospital room, and staff placed him in restraints for his own safety. On May 19, he was transferred to ALC for rehabilitation. Although ALC was apparently aware that Burgard needed to be restrained for his own safety, he was not, and on three occasions he fell while at the nursing home. As a result of the falls, he suffered a broken shoulder and a dislocated hip. After his falls, his health began to deteriorate and he developed an infection and pneumonia. He died on June 15,1999.

[¶ 8.] Burgard’s personal representative brought a complaint against ALC on June 14, 2002 alleging medical malpractice and wrongful death. The trial court found that this Court’s holding in Peterson applied to the case and dismissed the action on ALC’s motion for summary judgment. The estate appeals. Because prospective application of Peterson would not save the estate’s claim and because the Court has already applied Peterson retroactively, we affirm.

STANDARD OF REVIEW

[¶ 4.] The question before the Court is whether Peterson should have prospective application. We have held that prospective application of a decision “is entirely a question of law and therefore, freely reviewable.” Larsen v. Sioux Falls Sch. Dist. # 49-5, 509 N.W.2d 703, 705 (S.D.1993) (additional citations and quotations omitted).

[¶ 5.] Whether the decision in Peterson v. Burns that the two year medical malpractice statute of limitations governs wrongful death claims arising from medical malpractice should be applied prospectively.

[¶ 6.] The relevant timeline in this case is:

June 15, 1999: Anton Burgard passes away.
October 24, 2001: This Court publishes Peterson.
June 14, 2002: Estate files suit for medical malpractice and wrongful death.

[¶ 7.] The trial court held that the statute of limitations for the medical malpractice claims expired before the estate filed suit. The estate does not appeal that determination. It raises the question whether the wrongful death claim survives in spite of this Court’s ruling in Peterson.

[¶ 8.] The wrongful death statute of limitation provides:

Every action for wrongful death shall be commenced within three years after the death of such deceased person.

SDCL 21-5-3. According to this statute, the wrongful death claim was brought one day before the expiration of the statute of limitations. However, in Peterson, we held that a wrongful death claim premised upon medical malpractice was governed by the medical malpractice limitation of two years. Peterson, 2001 SD 126 at ¶ 46, 635 N.W.2d at 572; SDCL 15-2-14.1. In the instant case, the trial court held that the rule of Peterson was applicable and the estate appeals, arguing that Peterson should have prospective application only.

[¶ 9.] Traditionally, the general rule in civil cases was that unless a court declared that its decision was to have only prospective effect, the decision would have both prospective and retroactive effect. Baatz v. Arrow Bar, 426 N.W.2d 298, 300 (S.D.1988). This general rule arises from the theory that the judiciary does not make law, but rather interprets it. Therefore, unless the Court announces that a decision is to have prospective effect only, it is fairly assumed that the decision will apply prospectively and retroactively. Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 98, 113 S.Ct. 2510, 2518, 125 L.Ed.2d 74, 87 (1993) (additional citation omitted). However, the Court “has inherent power to apply its decisions prospectively or retrospectively.” State v. One 1966 Pontiac, 270 N.W.2d 362, 365 (S.D.1978) (additional citations omitted). We have consistently affirmed the principle that “the Constitution neither prohibits nor requires retrospective effect.” Vogt v. Billion, 405 N.W.2d 635, 636 (S.D.1987) (quoting Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601, 608 (1965)) (additional citation omitted). “Once the need is established for applying a principle prospectively, there is a large measure of judicial discretion involved in deciding the time from which the new principle is to be deemed controlling.” Vogt, 405 N.W.2d at 637.

[¶ 10.] We have adopted the factors promulgated by the United States Supreme Court for determining whether a decision will have only prospective application. Those factors are:

First, the decision to be applied nonret-roactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship” by a holding of nonretroaetivity.

Brown v. John Morrell & Co., 511 N.W.2d 277, 278 (S.D.1994) (quoting Fisher v. Sears, Roebuck & Co., 88 S.D. 1, 4-5, 214 N.W.2d 85, 87 (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971)) (emphasis supplied)). It is important to note that the factors the Court has adopted are premised on the presumption that normally, our decisions will be given retroactive effect. We employ the factors to determine whether equity requires a departure from the norm. Baatz, 426 N.W.2d at 300 (quoting AmJur2d § 233 (1965) (“the general rule in civil cases seems to be that unless the overruling decision declares that it shall have only prospective effect, [ ] the judicial overruling of a precedent has both prospective and retroactive effect.”)).

[¶ 11.] We need not examine the factors promulgated in Chevron, for even if the Court were to hold that Peterson announced a new rule of law and should have prospective effect only, it would not save the estates claim. In City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975), we noted that a decision applied prospectively “does not apply to cases handled by the ... courts previous to the date of this decision.” City of Aberdeen, 89 S.D. at 417, 233 N.W.2d at 334. In other words, “prospective application means the overruling decision is not applied to cases commenced before the decision was announced. Therefore, the overruling decision is applied to cases commenced after the decision is announced.” Baatz, 426 N.W.2d at 301-302 (emphasis supplied). “Although it can be argued that prospective application should mean the decision is applied only to transactions or events occurring after the announcement of the decision, this is not what our prior case law indicates for obvious and sound reason.” Id. at 302. In the instant case, even if we held that Peterson has prospective effect only, it would not save the estate’s claim because this case was commenced in June 2002, eight months after the decision was announced in October 2001.

[¶ 12.] Furthermore, the Court has already given Peterson retroactive effect. In Peterson, we reversed the circuit court’s determination that the relevant statute of limitation was three years and the determination that Johnson and Eis-land were proper parties to the suit. Peterson, 2001 SD 126 at ¶ 46, 635 N.W.2d at 572. The case was remanded for proceedings consistent with those determinations. The claims against Johnson and Eisland were no longer viable and had to be dismissed because they were not proper parties to the suit. Assuming that Peterson represented a change in the law, the Court chose to apply the holding retroactively to Johnson and Eisland even though at the time of the transaction the law arguably allowed for liability.

[¶ 13.] In Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), the United States Supreme Court revised its analysis of this issue and held, the “Court’s application of a rule of federal law to the parties before the Court requires every court to give retroactive effect to that decision.” Harper, 509 U.S. at 90, 113 S.Ct. at 2513, 125 L.Ed.2d at 81. This Court is not bound to adopt this bright line rule of retroactivity for our decisions, and the parties have not requested that we do so. While we do not abandon our analysis of the equities in cases such as this, we accept the Court’s reasoning that “the legal imperative ‘to apply a rule of federal law retroactively after the case announcing the rule has already done so’ must ‘prevail over any claim based on Chevron Oil analysis.’ ” Id. This determination arose from the Court’s recognition of the potential inequity of application of “selective prospectivity.” The Court previously defined selective prospectivity as a case wherein the court applies a new rule “in the case in which it is pronounced, then return[s] to the old one with respect to all others arising on facts predating the pronouncement.” James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 537, 111 S.Ct. 2439, 2444, 115 L.Ed.2d 481, 489 (1991). This is the doctrine that the estate requests this Court adopt in this case. However, application of selective prospectivity has already been rejected in the criminal context, see e.g. State v. Tuttle, 460 N.W.2d 157, 159 (1990) (citing Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)), and we have not endorsed it in the civil context. There is no good reason for accepting it now. Selective prospectivity ignores the principle that “litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally.” James B. Beam Distilling, 501 U.S. at 537, 111 S.Ct. at 2444, 115 L.Ed.2d at 489.

[¶ 14.] Alternatively, an analysis of the factors from Chevron would not permit a holding that Peterson should be applied only prospectively. Under Chevron, our threshold question is whether the holding of Peterson announced a new rule of law. Larsen, 509 N.W.2d at 706. If the case did not announce a new rule of law, our inquiry ends because “by definition, without a new rule, there is no change in the law and the question of retroactivity is immaterial.” Id. (citing United States v. Bowen, 500 F.2d 960, 975 (9th Cir.1974)).

[¶ 15.] Peterson did not overrule clear past precedent, but it did address a question of first impression. Therefore, we inquire whether the Court’s resolution of the issue was “clearly foreshadowed.” Our review of the decision of Peterson reveals that the Court’s resolution of this issue was clearly foreshadowed because it simply interpreted existing statutes and applied settled law.

[¶ 16.] In Peterson, the Court faced a question of statutory interpretation. Specifically, we asked whether the three year wrongful death statute of limitations extended the medical malpractice statute of limitations. Peterson, 2001 SD 126 at ¶ 5, 635 N.W.2d at 560-61. When a court is faced with a question of statutory construction, it is not making new law, but rather interpreting existing law. See e.g. Brown, 511 N.W.2d at 278. Therefore, although there is still a viable argument that the law should apply only prospectively, the argument is not as compelling as it would be in a case overruling settled law. When a prior decision merely applies existing statutory law, it is “unnecessary to state that the decision was both prospective and retrospective.” Baatz, 426 N.W.2d at 300. This is because the statute was within the codified laws before any judicial decision was announced and “as such, it provided a standard of care or conduct from the moment it became law.” Id.

[¶ 17.] The principal rationale for allowing prospective application is the reliance of parties on the old rule of law. The estate can show no such reliance in this case because the Court’s holding in Peterson was based on statutory law. The medical malpractice statute of limitations is an “occurrence rule.” A cause of action for medical malpractice accrues when the malpractice occurs, regardless of when the actual harm is discovered. Peterson, 2001 SD 126 at ¶ 12, 635 N.W.2d at 563 (citing Beckel v. Gerber, 1998 SD 48, ¶ 21, 578 N.W.2d 574, 578; Alberts v. Giebink, 299 N.W.2d 454, 455-56 (S.D.1980)). Legislative actions and precedent have made clear the intent of the Legislature to protect medical practitioners by preventing the type of contingent liability which would be created by permitting other statutes to toll the medical malpractice limitation. As the Peterson Court noted:

The medical malpractice statute of limitations provides that an action for medical malpractice can only be commenced within two years after the act of alleged malpractice occurred whether based on contract or tort. The statute is obviously intended to limit negligence actions for personal injury that could otherwise be brought within three years under the personal injury statute of limitations or contract actions for medical services that could otherwise be brought within six years under the contract statute of limitations. Just as obviously, the medical malpractice statute of limitations is intended to limit xurongful death actions based on medical malpractice to two years. If the statute can limit personal injury liability for malpractice to two years and contract liability for malpractice to two years, it can also limit actions for wrongful death based on medical malpractice to two years.

Peterson, 2001 SD 126 at ¶ 22, 635 N.W.2d at 565 (emphasis supplied, footnotes omitted).

[¶ 18.] This result was clearly foreshadowed by settled law, legislative intent, and the plain language of the statute. Any doubt as to the resolution of Peterson is resolved by looking to the Court’s analysis of discovery and damages rules in other professional malpractice cases, see e.g. Green v. Siegel, Barnett & Schutz, 1996 SD 146, 557 N.W.2d 396, and the Court’s previous holding that “medical malpractice characterized as fraud and deceit will not sanction a shift to a more beneficial statute of limitations.” Peterson, 2001 SD 126 at ¶ 26, 635 N.W.2d at 566-67 (quoting Bruske v. Hille, 1997 SD 108, ¶ 13, 567 N.W.2d 872, 876). Since no new rule of law was announced in Peterson, it is unnecessary for the Court to engage in analysis of the remaining Chevron factors.

[¶ 19.] For all of the foregoing reasons, the trial court is affirmed.

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

        Paterson was a legal malpractice case. In the underlying case, the plaintiff’s first attorney, Burns, brought medical malpractice and wrongful death claims in federal court. The doctors moved to dismiss for lack of subject matter jurisdiction. On March 12, 1998, Burns withdrew as counsel. New attorneys, Johnson and Eisland, were retained and filed another suit in state court raising the same claims. At the time the state claim was filed, the statute of limitation for medical malpractice had expired, but Johnson and Eisland argued that the pendency of the federal claim tolled the statute of limitation. The action in federal court was dismissed for lack of subject matter jurisdiction and the state action was dismissed because the malpractice statute of limitation had expired.
      On appeal of the legal malpractice claim, Burns argued that the wrongful death statute of limitation should have applied in the state case. The medical malpractice statute of limitation expired on March 22, 1997, and the wrongful death statute of limitation expired on April 9, 1998. If the Court had decided that the wrongful death statute of limitation applied, Johnson and Eisland would have been liable for malpractice for missing the filing deadline. If the medical malpractice statute of limitation applied, Johnson and Eisland would not be liable because they were not retained until after the time for filing a malpractice action expired.
      The Court determined that the malpractice statute of limitation applied and Johnson and Eisland were relieved of liability.


author: GILBERTSON, Chief Justice.

text:
    2004 SD 62
    John DOE, Jane Doe, John Doe # 2, and Others Similarly Situated, Applicants and Appellees, v. Chris NELSON, in his official capacity as the South Dakota Secretary of State, and the South Dakota Board of Pardons and Paroles, Respondents and Appellants.
    No. 22866.
    Supreme Court of South Dakota.
    Argued March 23, 2004.
    Decided May 5, 2004.

      Thomas K. Wilka of Hagen, Wilka & Archer, P.C., Sioux Falls, South Dakota, Attorneys for applicants and appellees.
    Lawrence E. Long, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, South Dakota, Attorney for respondents and appellants.
    Jon E. Arneson, Sioux Falls, South Dakota, for Amici Curiae.
   GILBERTSON, Chief Justice.

[¶ 1.] Doe and other applicants (hereinafter Applicants) sought a writ of prohibition against Chris Nelson, the South Dakota Secretary of State (Secretary of State) and the South Dakota Board of Pardons and Paroles (Board), prohibiting the Secretary of State and Board from releasing the names contained in numerous sealed pardons in the Secretary’s possession. The trial court granted the writ. On appeal, we focus not on the general broad Constitutional authority of the Governor to grant or deny pardons, but rather the narrow question of their status once the Governor has granted them. For the reasons set forth herein, we reverse and remand with instruction to dissolve the writ.

FACTS AND PROCEDURE

[f 2.] The facts in this case are not in dispute. In January of 2003, a representative of the Sioux Falls Argus Leader, a newspaper, asked the Secretary of State for a list of individuals who were named in pardons filed with Nelson for the years 1995 though 2002. All of the pardons contained notation from the Governor indicating the pardons were sealed “pursuant to section 24-14-11 of the South Dakota Codified Laws.” The Secretary of State determined that approximately 279 pardons had been filed during that time period containing that language. Further research by the Secretary of State established that from November 1972 through July 17, 1984, no pardon contained any type of language sealing the pardon. From July 17, 1984 to January of 2003, nearly all, if not all pardons contained this type of sealing language.

[¶ 3.] Prior to a response to the press request, the Secretary of State sought an opinion from the Attorney General as to the status of these 279 sealed pardons. In February of 2003, the Attorney General issued AGO 03-01 in which he concluded that those pardons granted by the Governor outside of the Board’s involvement under SDCL ch. 24-14, could not be legally sealed under SDCL 24-14-11. The Attorney General concluded that these 279 pardons were records open for public inspection under SDCL 1-27-1.

[¶ 4.] Based on the opinion of the Attorney General, the Secretary of State announced he would consult with the Board to determine which pardons were not issued pursuant to SDCL ch. 24-14. When this was completed, the Secretary would then open to public inspection those pardons not issued per SDCL ch. 24-14 but instead issued directly under Article IV, Section 3 of the South Dakota Constitution.

[¶ 5.] Applicants state they are some of those who received their pardons directly under Article IV, Section 3, rather than under SDCL ch. 24-14. They filed this action seeking a writ of prohibition to prohibit the Secretary of State and Board from unsealing and allowing public inspection of records relating to those pardons. Based upon constitutional analysis, the trial court issued the writ. It concluded the 1972 amendments to Article IV, Section 3 gave the Governor exclusive constitutional authority to pardon, including the power to seal pardons. The trial court also concluded that the separation of powers doctrine precluded the Legislature from encroaching upon what the court concluded was the Governor’s exclusive pardoning authority.

[¶ 6.] The Secretary of State and the Board appeal to this Court. As of this date, the pardons are not part of the court record. We assume they remain in the possession of the Secretary of State and remain sealed. As such no one, including this Court, has access to the identity of the pardon recipients.

STANDARD OF REVIEW

[¶ 7.] “A writ of prohibition is an extraordinary remedy.” South Dakota Bd. of Regents v. Heege, 428 N.W.2d 535, 537 (S.D.1988). It may only issue upon a showing that a public officer is acting or is about to act without or in excess of the officer’s jurisdiction or authority conferred by law. SDCL 21-30-1. The ordinary standard of review of a trial court’s decision involving the request to issue a writ of prohibition is abuse of discretion. H & W Contracting v. City of Watertown, 2001 SD 107, ¶ 24, 633 N.W.2d 167, 175. In this case, however, there were no issues of fact for the trial court to resolve. The issues before it were solely those of statutory and constitutional interpretation, thus being questions of law. As such, an erroneous interpretation of law if prejudicial, may be by definition an abuse of discretion. Cf. State v. Ashbrook, 1998 SD 115, ¶ 6, 586 N.W.2d 503, 506. The trial court’s legal conclusions are fully renewable by us, and no deference is given them. Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994).

[¶ 8.] 1. Does either Article 4, Section 3, of the South Dakota Constitution or any statute provide the Governor with the legal authority to seal the pardons granted to the Applicants.

. [¶ 9.] The current version of Article IV, Section 3 of the South Dakota Constitution, as last amended in . 1972, states as follows:

The Governor may, except as to convictions on impeachment, grant pardons, commutations, and reprieves, and may suspend and remit fines and forfeitures.

Neither “grant” nor “pardon” are defined in the constitution. “The words used in the Constitution are to be taken in then-natural and obvious sense, and are to be given the meaning they have in common use unless there are very strong reasons to the contrary.” In re Janklow, 1999 SD 27, ¶ 3, 589 N.W.2d 624, 626 (citation omitted). A common legal definition of “grant” at that time of the constitutional amendment’s adoption was “to bestow; to confer; upon someone other than the person or entity which makes the grant.” Black’s Law Dictionary 829 (4th ed 1968). “Pardon” was defined as:

An act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.

Id. at 1268.

[¶ 10.] It is clear that the wording of the text of Article IV, Section 3, does not provide an explicit answer to the question of whether the Governor has the legal authority to seal the 279 pardons. Both parties (as well as the amicus) recognize as much and spend a significant portion of their legal argument in an attempt to establish that the legal evolution of pardons in this State support their interpretation of the current provision. They bring to our attention previous versions of what is now Article IV, Section 3, South Dakota constitutional debates and case law from this and other jurisdictions. In the past, such secondary sources outside of the text of the constitutional provision have provided us with assistance. See Wegleitner v. Sattler, 1998 SD 88, ¶ 11, n. 3, 582 N.W.2d 688, 692. The “historical context” of a constitutional provision is a guide to its interpretation. Cleveland v. BDL Enterprises, Inc., 2008 SD 54, ¶ 40, 663 N.W.2d 212, 223. “Where the meaning of a constitutional provision is unclear, it is appropriate to look at the intent of the drafting bodies[.]” Pitts v. Larson, 2001 SD 151, ¶ 24, 638 N.W.2d 254, 260 (Gilbertson, C.J., dissenting); Poppen, 520 N.W.2d at 242; Cummings v. Mickelson, 495 N.W.2d 493, 499 (S.D.1993).

[¶ 11.] In 1889 the South Dakota Constitution was enacted. In considering the power of the new Governor to pardon, the constitutional convention looked to existing Territorial law on the subject of sealing pardons. Section 551 of the 1877 Territorial criminal procedure code required that a pardon granted by the Territorial Governor be filed with the Secretary of Dakota Territory, and as a record, it was “open to public inspection.” The new constitution contained Article IV, Section 5 which set forth the powers of the Governor regarding pardons:

The governor shall have the power to remit fines and forfeitures, to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment; provided, that in all cases where the sentence of the court is capital punishment, imprisonment for life, or for a longer term than two years, or a fine exceeding two hundred dollars, no pardon shall be granted, sentence commuted or fine remitted, except upon the recommendation in writing of a board of pardons, consisting of the presiding judge, secretary of state and attorney general, after full hearing in open session, and such recommendation, with the reasons therefore, shall be filed with the office of the secretary of state, but the legislature may by law in all cases regulate the manner in which the remission of fines, pardons, commutations and reprieves, may be applied for. Upon conviction for treason he shall have the power to suspend the execution of the sentence until the case shall be reported to the legislature at its next regular session, when the legislature shall pardon or commute the sentence, direct the execution of the sentence or grant a further reprieve. He shall communicate to the legislature at each regular session each case of remission of fine, reprieve, commutation or pardon, granted by him in the cases in which he is authorized to act without the recommendation of the said board of pardons, stating the name of the convict, the crime of which he is convicted, the sentence and its date, and the date of the remission, commutation, pardon or reprieve, with his reasons for granting the same.

[¶ 12.] To emphasize the continuity with previous Territorial law, within four months of the 1889 Constitution going into effect, the First South Dakota Legislature passed 1890 SD Laws ch 82 § 11, which stated: “[w]hen the Governor grants a reprieve, commutation or pardon, he must, within ten days thereafter, file all the papers presented to him in relation thereto in the office of the Secretary of State, by whom they must be kept as records open to public inspection.” (emphasis added). This First Legislature contained numerous members who, only months before as delegates to the 1889 Constitutional Convention, had drafted Article TV, Section 5. Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 18, 557 N.W.2d 396, 402. This is significant as the object of constitutional construction is “to give effect to the intent of the framers of the organic law and of the people adopting it.” Poppen, 520 N.W.2d at 242. This statute remained in effect until its repeal in 1978. See SDCL 23-59-3.

[¶ 13.] This Court did have an early occasion to conclude that a pardon was not a complete erasure of the underlying criminal conviction. In the case of In re Egan, we denied reinstatement to a disbarred attorney who had subsequently received a pardon. We concluded:

It is elementary that a pardon in such case is an act of clemency, and does not restore the applicant to his office of attorney, and does not restore to him that good character which he is required to possess upon being admitted to the bar and required to maintain in order so to remain.

52 S.D. 394, 218 N.W. 1, 12 (1928).

[¶ 14.] Article IV, Section 5 remained in effect until 1960 when it was amended to state:

The governor shall have the power on the written recommendation of the board of pardons and paroles to remit fines and forfeitures, to grant reprieves, commutations and pardons after conviction, for all offenses, except treason and cases of impeachment, but the legislature may by law regulate the manner in which the remission of fines, pardons, commutations and reprieves may be applied for. Upon conviction for treason the governor shall have the power to suspend execution of the sentence until the case shall be reported to the legislature at its next regular session, when the legislature shall either pardon or commute the sentence, direct the execution of the sentence or grant a further reprieve. He shall communicate to the legislature at each regular session each case of remission of fine, reprieve, commutation or pardon, granted by him, stating the name of the convict, the crime of which he is convicted, the sentence if any has been imposed, and its date, and the date of the remission, commutation, pardon or reprieve.
The board of pardons and paroles shall consist of an assistant attorney general who shall serve for the duration of the term of the attorney general appointing him as an ex officio member of the board and two electors who shall be appointed for terms of four years commencing on the first Tuesday after the first Monday in January, 1961, and every fourth year thereafter, one by the governor and the other by the supreme court. A vacancy shall be filled for the unexpired term by the respective appointing power that theretofore made the appointment. The board of pardons and paroles shall have the power to parole persons convicted of crime under the laws of this state upon such condition and with such restrictions and limitations as may be provided by law. This amendment shall not be so construed as to affect the provisions of article V, section 39.

We subsequently held in Opinion of the Judges, 83 S.D. 477, 161 N.W.2d 706 (1968), that the Governor’s power to issue a pardon was not unlimited but was qualified by the express approval of the Board.

[¶ 15.] This version of Article IV, Section 5 stayed in effect for twelve years. In 1972 the executive article of the South Dakota Constitution was re-written and along with it, Article IV, Section 5. It was amended to its current terminology which is now found in Article IV, Section 3:

The Governor may, except as to convictions on impeachment, grant pardons, commutations and reprieves, and may suspend and remit fines and forfeitures.

Constitutional amendments are adopted for the purpose of making a change in the existing system and we are “under the duty to consider the old law, the mischief, and the remedy, and interpret the constitution broadly to accomplish the manifest purpose of the amendment.” South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693, 697 (S.D.1981) (citation omitted).

[¶ 16.] Clearly the 1972 amendments to the Governor’s pardoning power made significant changes. The minutes of the Constitutional Revision Commission indicate that an amendment of the existing article was rejected in favor of a totally new shorter text which was declared by the Commission Chair to provide the Governor with needed flexibility. The minutes also indicate that the current text was in large part adopted from Article III, Section 21 of the Alaska Constitution, Executive Department, Article IV. Minutes of the Constitutional Revision Commission Document # 6 at 28, and attached Official Comments (August 31, 1970). The Commission went on to state the changes the new proposal would make in place of the existing constitutional provision:

The recommended Section ... is taken from the Alaska Constitution, Article III, Section 21. The Commission feels this proposed section is a good consolidation of the current Section 5. The recommended section makes the following specific changes: (1) Takes out the specific requirement of written recommendation from the Board of Pardons and Paroles before the Governor can grant pardons, commutations, reprieves, and suspend or remit fines and forfeitures; (2) Deletes the provision for allowing suspension of execution for treason until the Legislature convenes; (3) Deletes the provision that the Governor communicate to the Legislature each remission of fine or pardon; (4) Takes out the specific provision providing for the structure of the Board of Pardons and Paroles and allows for it to be provided by law. It was felt that the establishment of a parole system should best be handled by statute as opposed to the present constitutional provision.

Commission Document # 32 at 15-17 (July 12, 1971). Despite this detailed list of changes, nowhere is there any suggestion that the proposed changes would vest total authority with the Governor over the pardon’s filing and possible sealing. Further, the 1972 Legislature which proposed this constitutional amendment, saw no reason to amend or repeal SDCL 23-59-3 which, since the 1870’s guaranteed public inspection of the pardons filed with the Secretary of State.

[¶ 17.] In 1978, the Legislature enacted SDCL ch 24-14 which deals with “Executive Clemency.” It also repealed SDCL 23-59-3. In 1983, SDCL ch 24-14 was amended to include the passage of SDCL 24-14-11. Based upon the enactment of SDCL ch 24-14, in his Opinion 03-01, the Attorney General concluded there now exists four types of pardons in South Dakota which can be granted by the Governor. We agree with this analysis:

1. An applicant can Petition the Board for an Executive Order pardon under SDCL ch 24-14 and Executive Order 87-15.
2. An applicant can petition the Board for an exceptional pardon under SDCL 24-14-8 if the applicant has been released from the penitentiary for at least five years and has had only one felony for an offense punishable by imprisonment less than life.
3. An applicant may petition the Governor who may refer the application to the Board for consideration and a recommendation pursuant to SDCL 24-14-5.
4. An applicant may petition to the Governor who may act on the application pursuant to his constitutional power without involving the Board.

It is the fourth type of pardon which is the basis for the dispute now before us as all Applicants in this case claim they were recipients of pardons directly from the Governor; they did not go through the Board. However, controversy exists as to the application of SDCL 24-14-11 to the direct Governor’s pardons without Board participation. It states:

Any person who has been granted a pardon under the provisions of this chapter shall be released from all disabilities consequent on such person’s conviction. Upon the granting of a pardon under the provisions of this chapter, the Governor shall order that all official records relating to the pardoned person’s arrest, indictment or information, trial, finding of guilt and receipt of a pardon shall be sealed. The effect of such order is to restore such person, in the contemplation of the law, to the status of the person occupied before an arrest, indictment or information!.]

(emphasis added). It is clear that the pardon order entered by the Governor relied upon SDCL 24-14-11 as the basis for the sealing of the pardon. SDCL 24-14-11, however, does not apply to pardons directly issued by the Governor but instead applies to the three types of pardons which involve the Board. By their own admission, Applicants were not granted pardons “under the provisions of this chapter.”

[¶ 18.] Despite the 1978 statutory changes, from the adoption of Article IV Section 3, in November of 1972 until July 17, 1984, no pardons were filed with the Secretary of State containing the Governor’s order sealing the pardons. Only upon the enactment date of SDCL 24-14-11 did all orders thereafter contain the sealing designation.

[¶ 19.] The trial court concluded that Article IV, Section 3, by itself authorized the Governor to seal his pardons under the rationale that “the 1972 amendments to the Constitution intended that the executive branch occupy the field to the exclusion of both the judicial and legislative branches.” The trial court further concluded that “distilling the ultimate question before this Court within the framework discussed above, the issue simply boils down to whether the executive’s power to grant pardons is broad enough to encompass the authority to seal granted pardons and whether the Legislature has any ability to shape the governor’s power.” Applicants contend this analysis is correct.

[¶ 20.] As can be seen from the scarcity of South Dakota case law authority cited above, there is no opinion from this Court even remotely addressing this constitutional issue. A review of case law in other jurisdictions reveals the same dearth. Applicants rely upon the case of Parole Commission v. Lockett, 620 So.2d 153 (Fla.1993). The trial court also relied upon Lockett in analyzing the Governor’s pardoning powers in South Dakota. In Lock-ett, the Court determined that investigative files compiled by the Florida Parole Commission as part of the Florida Governor’s pardon process, were not subject to that state’s public record laws. However, Lockett only dealt with the investigative files and not the actual pardon orders granting the pardons which were filed with the Florida Secretary of State.

[¶ 21.] The other case cited by both parties and by the trial court is Doe v. Salmon, 135 Vt. 443, 378 A.2d 512 (1977). The pardoning process in Vermont and South Dakota appears to be generally the same. In Salmon, the Governor made agreements with some pardon recipients that their pardons would remain private in the interests of the individual’s privacy. The Court concluded that “[t]hose agreements, although compassionately entered into, could only be valid if authorized by law, and there is no such law.” Id. at 516. Likewise, the Court concluded while the Governor had the constitutional power to grant pardons, that constitutional power did not extend to ordering them to be sealed.

[¶ 22.] The trial court distinguished Salmon upon the basis that the Vermont constitution had a clause which stated:

That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.

Id. at 515. The trial court reasoned that this was a limit upon the power of the Governor of Vermont to pardon which did not exist in South Dakota. However, the trial court failed to consider Article VI, Section 1 of the South Dakota Constitution:

All men are born equally free and independent, and have certain inherent rights, among which are those of enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

In accord is Article VI, Section 26 of the South Dakota Constitution:

All political power is inherent in the people, and all free government is founded on their authority, and is instituted for their equal protection and benefit, and they have the right in lawful and constituted methods to alter or reform their forms of government in such manner as they may think proper.

We find Salmon factually and legally persuasive.

[IT 23.] 2. Whether the statutory enactments concerning public access to pardon documents violate the doctrine of separation of powers.

[¶ 24.] It is clear that since 1889, the South Dakota Legislature has involved itself in this issue by allowing public access from 1889 to 1978 and from 1984 onward, denying public access to those pardons which are granted pursuant to SDCL ch 24-14. In fact, the express language of the Governor’s order sealing the document invoked SDCL 24-14-11 as the source authority and not Article IV, Section 3 of the Constitution. Nevertheless, the trial court concluded that “[e]ven though [the Governor] referenced several pardons were to be sealed in accordance with statutory law, precision is of no consequence as his authority is exclusively derívate of the Constitution.”

[¶25.] Article II of the South Dakota Constitution provides the powers of the government of this State are divided into three distinct departments: the legislative, executive and judicial, the powers of each being prescribed by the Constitution. The cornerstone of the trial court’s analysis is our long standing holding that:

The South Dakota Constitution, unlike the Constitution of the United States, does not constitute a grant of legislative power. Instead, our constitution is but a limitation upon the legislative power and the legislature may exercise that power in any manner not expressly or inferentially proscribed by the federal or state constitutions. Thus, except as limited by the state and federal constitutions, the legislative power of the state legislature is unlimited. What the representatives of the people have not been forbidden to do by the organic law, that they may do. Consequently, in determining whether an act is unconstitutional, we search the state and federal constitutions for provisions which prohibit its enactment rather than for grants of such power.

Break v. Janklow, 2001 SD 28, ¶ 9, 623 N.W.2d 449, 454 (emphasis added) (citation omitted). While Applicants urge us to apply this analysis, it is clear that this refers to the constitutional power of the Legislature, not the Governor. While the Governor surely has the inherent power to carry out his or her constitutional and statutory duties, Applicants are unable to cite to any similar expansive grant of inherent authority to the Governor as the above doctrine vests with the Legislature. Moreover, no other state has held the power to seal a pardon naturally flows from a Governor’s pardoning authority.

[¶ 26.] If the Legislature has no constitutional authority to create a statutory framework for the handling of pardons after they are issued because the Governor’s pardoning authority is exclusive, then logically, as the third co-equal branch of government, this Court would lack the constitutional authority to involve itself in the resolution of this dispute. This Court has jurisdiction, however, because we have a single constitution in which all provisions must be construed together, not a balkan-ized collection of individual articles which exist as an independent grant of sovereignty to the exclusion of all others. Volk, 305 N.W.2d at 696-97; Janklow, 1999 SD 27, ¶ 7, 589 N.W.2d at 626.

[¶ 27.] The discretionary nature of the constitutional power of the Governor to grant pardons is not affected by the issue that confronts us today. There has been no legislative attempt to limit the number of pardons a Governor can issue, or for what offenses, or to limit the subjective denial or grant of the application by the Governor or the like.

CONCLUSION

[¶ 28.] We are well aware that there may be subjective privacy interests of pardon applicants which were deemed the basis for ordering these pardons sealed. We do not know the merits of these privacy claims because these pardons remain sealed even from this Court at this time. The record contains no allegation that these pardons were not granted in good faith. As such, there is no evidentiary or legal basis to cast any negative reflection on the good faith reason for which they were given. See Salmon, 378 A.2d at 516.

[¶ 29.] Nevertheless, Applicants fail to establish how the Governor’s future authority to pardon will be limited by whether the pardon is sealed or open to public inspection. As the underlying conviction is public record, the applicant for a pardon would presumably be better off with a pardon publicly granted rather than no pardon at all.

[¶ 30.] We determine there is no statutory or constitutional right of the Governor to seal pardons granted directly by him or her which does not invoke the involvement of the Board under SDCL ch. 24-14. There is no express language in Article IV, Section 3 which supports a contrary result. From 1889 to 1978 by statute, pardons were mandated to be public the same as their underlying convictions were public. When the 1972 amendment to the Governor’s pardoning power was enacted, the mandate of SDCL 23-59-3 remained intact. When SDCL 23-59-3 was repealed in 1978, and replaced by SDCL ch. 24-14, the authority to seal subsequently vested by SDCL 24-14-11 in 1984 only applied to those pardons involving the Board and that chapter.

[¶ 31.] The constitutional power of the Governor concerning the authority to grant pardons, while admittedly broad, is not unlimited. Though the Governor may freely grant pardons, there is nothing in our constitution, statutes or case law which treats the pardon, once granted, as also the personal domain of the Governor. Filing with the Secretary must be more of a legal act than simply privately warehousing the pardon documents. What this State has is a two-prong pardon system: a pardon granted by the Governor with input from the Board which may be sealed per SDCL 24-14-11, or a pardon granted solely by the Governor with no outside involvement but open to public inspection. “[Executive clemency] is lodged in the governor, not for the benefit of the convict only, but for the welfare of the people, who may properly insist upon the performance of that duty by him, if a pardon is to be granted.” Rich v. Chamberlain, 104 Mich. 436, 62 N.W. 584, 585 (1895).

[¶ 32.] We reverse and remand to the trial court with instructions to dissolve the writ of prohibition.

[¶ 33.] SABERS, KONENKAMP, and MEIERHENRY, Justices, and TUCKER, Circuit Judge, concur.

[¶ 34.] TUCKER, Circuit Judge, sitting for ZINTER, Justice, disqualified.

      . The Argus Leader, Associated Press, Aberdeen American News, Black Hills Pioneer of Spearfish, KELO-TV, KORN Radio of Mitchell, KSFY-TV, Madison Daily Leader, The Daily Republic of Mitchell, Radio and Television News Directors Association, Reporters Committee for Freedom of the Press, Society of Professional Journalists, South Dakota Broadcasters Association, South Dakota Newspaper Association, USA Today and Yankton Daily Press & Dakotan appear in this proceeding as Amici Curiae.

      . There were two variations of the notation on the pardons. From July 17, 1984 until October 3, 2002, the notation was:
      IT IS FURTHER ORDERED that all official records relating to (this/these) personal offense(s) are hereby sealed pursuant to section 24-14-11 of the South Dakota Codified Laws.
      From October 3, 2002, the language was slightly modified and the notation became: IT IS FURTHER ORDERED that all official records relating to (this/these) personal offense(s) along with all recordation relating to the defendant's arrest, indictment, or information, trial, finding of guilt, and receipt of pardon, are hereby sealed pursuant to section 24-14-11 of the South Dakota Codified Laws.

      .SDCL 24-14-11 became law on July 1, 1984.

      . Pardons have been in existence in this jurisdiction since its governmental beginnings. The first session of the Dakota Territorial Legislature addressed the authority of the Territorial Governor to grant pardons:
      That in all cases, where the governor is authorized to grant pardons, he may, upon the petition of the person convicted, grant a pardon, upon such conditions, and with such restrictions, and under such limitations, as he may think proper, and he may issue his warrant to all proper officers to carry into effect such pardon; which warrant shall be obeyed and executed instead of the sentence, if any, which was originally awarded,
      1862 DalcTerrSL, ch 64.

      . The previous Constitutional Conventions of 1883, 1885 and 1887 do not provide any significant analytical assistance on this issue, Those conventions adopted basically the same

      . Under ch 105, § 1 of the 1890 Session Laws, all Territorial acts were carried over to the new State of South Dakota until "altered, amended or repealed.” The only difference between the Territorial statute and the South Dakota statute was the change in the place of filing from the “secretary of the territory” to the "Secretary of State.”

      . The Alaska Constitution and its interpretative case law do not support the conclusion of the trial court herein as to the constitutional authority of the Governor to seal pardons. In Dancer v. State, the Alaska Court of Appeals concluded:
      The minutes of the constitutional convention discussing this provision do not specifically address the question of parole. Dancer points out that the drafters did address the governor’s clemency power during their deliberations and apparently intended to prevent secret pardons and commutations by making the governor’s powers subject to the legislative procedures. See 3 Proceedings of the Alaska Constitutional Convention, at 2190-91 (1956). 715 P.2d 1174, 1182 (AlaskaCtApp 1986).

      . As of July 1, 2003, SDCL 24-14-11 was amended. Although not applicable to the issues now before us, the statute currently reads:
      Any person who has been granted a pardon under the provisions of this chapter shall be released from all disabilities consequent on the person’s conviction. Upon the granting of a pardon under the provisions of this chapter, the Governor shall order that all official records relating to the pardoned person's arrest, indictment or information, trial, finding of guilt, application for a pardon, and the proceedings of the Board of Pardons and Paroles shall be sealed. The Governor shall file a public document with the secretary of state certifying that the Governor has pardoned the person in compliance with the provisions of this chapter. The document shall remain a public document for five years and after five years that document shall be sealed. The receipt of any pardon, which was granted without following the provisions of this chapter, may not be sealed. The pardon restores the person, in the contemplation of the law, to the status the person occupied before arrest, indictment, or information. No person as to whom such order has been entered may be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of such person’s failure to recite or acknowledge such arrest, indictment, information, or trial in response to any inquiry made of such person for any purpose.
      For the sole purpose of consideration of the sentence of a defendant for subsequent offenses or the determination of whether the defendant is a habitual offender under chapter 22-7 or whether the defendant has prior driving under the influence convictions pursuant to chapter 32-23, the pardoned offense shall be considered a prior conviction.
      The court shall forward a nonpublic record of disposition to the Division of Criminal Investigation. The nonpublic record shall be retained solely for use by law enforcement agencies, prosecuting attorneys, and courts in sentencing such person for any subsequent offense and in determining whether or not, in any subsequent proceeding, the person is a habitual offender under chapter 22-7 or the determination of whether the defendant has prior driving under the influence convictions pursuant to chapter 32-23.

      . This statute is not unique in requiring sealing or limiting public access to state records. See also SDCL 25-6-15 (adoption records), SDCL 34-25-16.4 & 5 (birth records sealed after issuance of new one), SDCL 26-6-20 (child welfare agencies), SDCL 61-3-4 (employment information obtained in administration of unemployment compensation law), SDCL 34-12-17 (hospital licensing and inspection), SDCL 58-5A-41 (insurance holding company), SDCL 26-7A-37 & 113 (juvenile court records), SDCL 34-14-1 & 4 (medical research), SDCL 45-6C-14 (mineral exploration permit filings), SDCL 45-6B-19 (mining permit applications), SDCL 28-1-29 (public assistance), SDCL 14-2-51 (public library records), SDCL 52-3-5 (savings and loan associations), SDCL 10-1-28.1 & 9 (tax information), SDCL 25-5A-20 (termination of parental rights), SDCL 45-6D-15,42 & 45 (uranium exploration permit filings), SDCL 33-16-23 (veterans files) and SDCL 62-6-5 (workers’ compensation administration).

      . The record does not indicate whether the current Governor is following the practice of his predecessors.

      . The trial court did not focus on the Secretary of State’s constitutional status. The Sec-retaiy of State is not an employee of the Governor. Under Art. IV, § 7, the independent constitutional office of Secretary of State is created. Art. IV, § 8 gives the Governor the power of reorganization of "[a]ll executive and administrative offices, boards, agencies, commissions and instrumentalities of the state government!)] ” However, expressly excluded from that broad authority are the constitutional offices which include the Secretary of State. The duties of the Secretary of State are found at SDCL ch 1-8. Under SDCL 1-8-1(4) the Secretary is to file any document which the law requires to be filed in that office. Under SDCL 1-27-1 if the keeping of a document is required, it is open to inspection "by any person during normal business hours” unless declared confidential or secret per SDCL 1-27-3 and other applicable laws.

      . Inherent power has been described by a member of this Court as the power "to superintend its internal management and carry out its constitutionally-mandated duties.” Fullmer v. State Farm Ins., 514 N.W.2d 861, 868 (S.D.1994) (Henderson, J., concurring in part and dissenting in part). At the time of the 1972 constitutional amendments of Article IV, inherent power was defined as:
      An authority possessed without its being derived from another. A right, ability, or faculty of doing a thing, without receiving that right, ability, or faculty from another.
      Black’s Law Dictionary 921 (4th Ed.1968).

      . Other claims were initially raised by the Applicants at trial. However, they were not the basis of the trial court's decision and Applicants did not pursue them on appeal by notice of review. They are deemed waived.