author: MEYER-, Justice.

text:
    STATE of Minnesota, Appellant, v. Joseph Steven HEANEY, Respondent.
    No. A03-1401.
    Supreme Court of Minnesota.
    Dec. 2, 2004.
   OPINION

MEYER-, Justice.

The district court suppressed blood-alcohol evidence in the vehicular homicide prosecution of Joseph Heaney on the ground that the evidence is privileged under Minnesota’s physician-patient privilege, set forth in Minn.Stat. § 595.02, subd. 1(d) (2002). The state appealed, claiming that an exception to Wisconsin’s medical privilege statute, allowing for the admission of this type of evidence, should apply because treatment and blood testing occurred in Wisconsin. The court of appeals affirmed the suppression of the blood-alcohol evidence. We reverse.

During the early morning hours of November 18, 2001, a Minnesota peace officer responded to a one-vehicle rollover accident in Houston County, Minnesota. The officer determined shortly after arriving at the scene of the accident that one of the vehicle’s four occupants had died. Respondent, Joseph Heaney, admitted to the officer that he had been driving the vehicle involved in the accident and that he and his friends had been consuming alcohol earlier that evening. The officer administered a portable breath test to Heaney, resulting in a reading of .101. Heaney was transported by ambulance to the Gunder-son Lutheran Medical Center in LaCrosse, Wisconsin, the closest available hospital for treatment of his injuries.

Shortly thereafter, a different Minnesota officer arrived at the medical center and read Heaney Minnesota’s implied consent advisory, including the portion indicating that the officer had probable cause to believe Heaney had violated Minnesota’s criminal vehicular homicide law. The officer then requested a blood sample for testing. Heaney initially consented to give a blood sample, but later withdrew his consent. The officer indicated his belief that he had a right to take a blood sample despite Heaney’s refusal. Heaney eventually acquiesced to a urine test, which was administered nearly three hours after the time of the accident. Analysis of the urine showed that Heaney’s alcohol concentration at the time of the test was .08.

The Minnesota officer later learned that before he arrived at the medical center and within two hours of the accident the medical center had obtained a blood sample from Heaney. Following Wisconsin statutory procedures, the officer then completed a request for production of certain items, along with a supporting affidavit, seeking a copy of Heaney’s medical records and the blood sample. A deputy LaCrosse County Attorney filed this request at the LaCrosse County District Court. The court then issued a subpoena for documents as well as an order requiring the medical center to release the requested documents and the blood sample. The Minnesota officer served the subpoena on the medical center, after which Hea-ney’s medical records and the blood sample were given to the officer. The report showed that Heaney’s blood alcohol concentration was .144 within two hours of the accident. This result was independently confirmed at the Bureau of Criminal Apprehension lab in St. Paul, Minnesota.

On May 1, 2002, a complaint was filed in Houston County District Court charging Heaney with four counts of criminal vehicular operation resulting in death under Minn.Stat. § 609.21, subd. 1 (2002), as well as four counts of criminal vehicular operation resulting in substantial bodily harm under Minn.Stat. § 609.21, subd. 2 (2002). Both crimes require proof that the defendant drove while having an alcohol concentration of .10 or more, measured within two hours of the time of driving. At an omnibus hearing, Heaney sought to suppress the blood-alcohol evidence on the grounds that the evidence was obtained in violation of Minnesota’s physician-patient privilege statute, Minn.Stat. § 595.02, subd. 1(d). The court granted his motion to suppress the hospital and laboratory blood-alcohol evidence because the evidence was obtained in violation of Minnesota’s physician-patient privilege. The court of appeals affirmed, holding that under either lex fori or a “better rule of law” analysis, the district court correctly applied Minnesota’s physician-patient privilege statute. State v. Heaney, 676 N.W.2d 698 (Minn.App.2004).

The state sought review on the issue of whether Heaney’s blood-alcohol evidence is admissible in Minnesota where the evidence was properly obtained under Wisconsin law but Minnesota’s physician-patient privilege statute would preclude its admission at trial. We reverse the decision of the court of appeals and remand for trial.

I.

When reviewing a pretrial order suppressing evidence where the facts are not in dispute, we may conduct an independent review and determine, as a matter of law, whether the district court erred in suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999); State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). The construction of statutes and rules is subject to de novo review. State v. Azure, 621 N.W.2d 721, 723 (Minn.2001). The existence of a privilege is also a question of law, which we review de novo. State v. Gianakos, 644 N.W.2d 409, 415 (Minn.2002).

The state argues that State v. Lucas, 372 N.W.2d 731 (Minn.1985), provides the rule of law for this case. In Lucas, the telephone conversation of two parties was tape-recorded in Wisconsin. One party-had not consented to the taping of the conversation. The state sought to introduce the tape in Minnesota. We had held in State v. Bellfield, 275 N.W.2d 577 (Minn.1978), that where one of two parties consented, no warrant was required under either the federal or state electronic surveillance statutes to tape a telephone conversation, and the recordings were admissible. In contrast, based on Wisconsin’s electronic surveillance statute, the Wisconsin court in State ex rel. Arnold v. County Court of Rock County, 51 Wis.2d 434, 187 N.W.2d 354 (1971), held that a tape-recorded telephone conversation based on a one-party consent was not admissible in evidence. With this background, the court in Lucas adopted an exclusionary rule analysis, rejected a traditional conflict of laws approach, and held the tape-recorded statement to be admissible in Minnesota. In doing so, we cited secondary sources and case law from other states concerning the admission of evidence obtained out of state where the evidence was illegally obtained under the laws of either or both the forum and search jurisdictions.

Both the district court and court of appeals found the exclusionary rule analysis of Lucas to be inapplicable to the facts of the present case. The district court rejected the Lucas analysis, stating that in Lucas the criminal activity occurred in Wisconsin, whereas in the present case the criminal activity occurred in Minnesota. We do not find this distinction persuasive. In Lucas, as in the present case, the evidence was seized in Wisconsin and the location of the criminal activity did not control the evidentiary question. The court of appeals took a different approach, distinguishing Lucas on the basis that Lucas involved the violation of a constitutional right of the defendant, whereas in the present case only a statutory right is implicated. We do not find such a distinction between Lucas and the instant case. The Lucas court did not conclude that any constitutional rights were implicated, only the meaning of a Wisconsin statute concerning surveillance techniques. Id. at 737.

Nevertheless, we agree with the lower courts that the exclusionary rule analysis in Lucas need not be applied in this case. Where the police have engaged in illegal conduct in obtaining evidence or where, as in Lucas, police conduct was lawful but a statute concerning privacy interests renders the evidence inadmissible, an exclusionary rule analysis is appropriate. But where, as here, there is neither conduct by police that is illegal under the statutes or constitution of either the forum or search jurisdictions, nor any statute or constitutional principle in the search jurisdiction that would make the evidence inadmissible, an exclusionary rule analysis does little to determine which state’s law should be applied. An exclusionary rule analysis alone does not take into account important policy considerations such as those discussed in Part II of this opinion. A traditional conflict of laws analysis, therefore, is appropriate to determine the admissibility of evidence obtained in another state in a criminal case.

II.

We now proceed to the conflict of laws question. In the present case, the Minnesota and Wisconsin physician-patient privilege rules directly conflict. Minnesota’s physician-patient privilege has its genesis in Minn.Stat. § 595.02, subd. 1(d) (2002):

A licensed physician * * * shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity.

A blood sample taken for treatment purposes is information acquired by the physician that is necessary to enable him to act in a professional capacity and is included in the privilege. See State v. Stoat, 291 Minn. 394, 400, 192 N.W.2d 192, 197 (1971) (holding that the statute’s broad language encompasses physical articles, verbal communications, and any other knowledge obtained by the physician through his observation and examination). Thus, under Minnesota’s physician-patient privilege statute, Heaney’s blood-alcohol evidence from the hospital would be inadmissible.

Wisconsin’s privilege statute, on the other hand, excepts the type of evidence at issue in the present case from privileged status. Wis. Stat. § 905.04, subd. 2 (2001-02) sets out Wisconsin’s general rule of privilege: “A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient’s physical, mental, or emotional condition * * *.” However, the statute goes on to state “[t]here is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.” Id., subd. 4(d) (2001-02). Further, “[t]here is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration.” Id., subd. 4(f). Either exception would apply to bring the medical center’s disputed blood-alcohol evidence into court.

To resolve this conflict of laws, the court of appeals applied the doctrine of lex fori (the law of the forum). The court concluded that since physician-patient privilege statutes are evidentiary rules, and evidentiary rules are matters of procedure, they are governed by the laws of the forum state. State v. Heaney, 676 N.W.2d at 707 (citing Jones v. Chicago, St. P., M. & O. Ry. Co., 80 Minn. 488, 491, 83 N.W. 446, 447 (1900)). Thus, the court concluded the evidence is inadmissible under Minnesota’s statute. The court went on to say that even if the physician-patient privilege is more akin to a rule of substantive law than a rule of procedure, under Minnesota’s “better rule of law” choice of substantive law doctrine, the Minnesota physician-patient privilege is the better rule. Heaney, 676 N.W.2d at 707 (citing Milkovich v. Saari, 295 Minn. 155, 164, 203 N.W.2d 408, 413 (1973) (holding that, in the context of civil tort actions, Minnesota courts will look to the “better rule of law” rather than lex loci, the law of the place)). We believe that neither lex fori nor the “better rule of law” adequately weighs the various evidentiary concerns that arise in a privilege context.

Privileges are not like other rules of evidence and hold a unique place in the law. A question of privilege is an evidentiary question, Gianakos, 644 N.W.2d at 415, but it has a substantive component. Unlike other rules of evidence that are concerned solely with the reliability of evidence and its ability to guide the court to the truth, privileges are an impediment to truth-finding. Stoat, 291 Minn. at 397, 192 N.W.2d at 196. They are created to substantively protect a particular type of relationship deemed valuable to society in general. Id. Professor Jack B. Weinstein highlights the difference between a privilege and an “ordinary” rule of evidence:

Rules of evidence are designed to provide better answers to questions of fact than could be obtained without the rules. * * * [This] does not apply to privileges. For in this area, government weighs the value of better answers to litigated questions of fact against other public policies. Where it decides that a privilege is to be recognized * * *, it fosters a policy unrelated to litigation at the price of worse answers to questions of fact.

Jack B. Weinstein, Recognition in the United States of the Privileges of Another Jurisdiction, 56 Colum. L. Rev. 535, 535 (1956).

The “unrelated” policy of the physician-patient privilege is to promote unfettered communication between patient and physician. Staat, 291 Minn. at 397, 192 N.W.2d at 195-96. The court of appeals’ application of lex fori fails to recognize that a privilege is fundamentally different from other evidentiary rules in that it has this substantive aspect. Applying lex fori to a conflict of privileges freads heavily on the prerogative of the foreign state to enact a substantive rule to protect what it considers socially valuable, confidential communications. On the other hand, application of lex loci or its replacement, the “better rule of law” analysis, does not adequately weigh the procedural aspect, that recognition of a privilege always leads to “worse answers to questions of fact” and harms the interest of the forum.

We note that Milkovich v. Saari, the case that replaced the doctrine of lex loci with the “better rule of law” analysis, was a civil tort action for negligence involving an automobile accident, not a criminal case. 295 Minn. 155, 203 N.W.2d 408. In adopting the new “better rule” analysis, the Milkovich court cited a lengthy passage from Professor Albert A. Ehrenz-weig, ‘False Conflicts’ and the ‘Better Rule’: Threat and Promise in Multistate Tort Law, 53 Va. L. Rev. 847, 855 (1967), giving the rationale for the new approach: “In cases involving foreign elements, however, this consideration [of respect for certainty and the parties’ expectations] * * * generally is less relevant, and the path is open for the courageous judge to prepare the ground for a domestic reform by open preference for ‘better’ foreign solutions.” Milkovich, 295 Minn. at 168, 203 N.W.2d at 415. While reasonable in the context of tort law, the criminal setting presents significant differences that make the Milko- vich rule inappropriate. In the criminal context, the interest in better answers to factual questions is significantly heightened due to the possible liberty deprivation faced by the defendant and the proof beyond a reasonable doubt standard. Minnesota law reflects these differences. The physician-patient privilege has been applied domestically in criminal cases only by judicial assumption, and is generally not applied where its “effect would be to bar evidence in furtherance of crime.” Staat, 291 Minn. at 399 n. 2, 192 N.W.2d at 196 n. 2. Because applying a foreign privilege will always lead to worse answers to questions of fact, a choice of law rule regarding privileges in the criminal context must sufficiently cabin the trial court’s discretion. The Milkovich “better rule of law” approach, with its premise that foreign law might be imported into the forum to pressure domestic reform, does not comport well with the special concerns presented by the criminal setting. Such weighty balancing of societal interests against the interest in having the best answers to factual questions in criminal cases ought to be left to the legislature.

The Restatement provides a conflicts rule unique to privileges that balances all of the foregoing considerations. The Restatement establishes two prongs:

(1) Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum.
(2) Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.

Restatement (Second) of Conflict of Laws § 139 (1971). The state of “most significant relationship with the communication” will be the state where the communication took place, unless there is a prior relationship between the parties. Id. at cmt. e. If there is a prior relationship between the parties, the state where the relationship is centered has the most significant relationship, unless the state where the communication took place has “substantial contacts” with the parties and the transaction. Id.

By focusing the inquiry on the state with the most significant relationship with the communication, the Restatement approach recognizes both the substantive nature of the privilege statute and the interest of the state where the communication took place in facilitating unfettered communications within such privileged relationships. The two prongs of the test also sufficiently appreciate the procedural nature of the privilege statute and its effect on the forum, possibly resulting in worse answers to questions of fact. Under the first prong, evidence will always be admitted, absent a strong public policy in the forum, if it is admissible in the state of most significant relationship with the communication. Under the second prong, evidence will more than likely be admitted if the forum favors admission and the state of most significant relationship does not. Evidence will not be admitted where it is privileged in both the forum state and the state of most significant relationship.

The Restatement rule has been adopted in Iowa, Washington, and Illinois in cases involving out-of-state seizure of privileged blood-alcohol evidence. The Iowa Supreme Court specifically adopted the Restatement approach in a case with facts nearly identical to the present case. See Iowa v. Eldrenkamp, 541 N.W.2d 877 (Iowa 1995). In that case, the defendant was driving a motorcycle under the influence of alcohol with a passenger on board. The motorcycle struck a reflector post on the Iowa side of a causeway connecting Iowa and Illinois, throwing both driver and passenger from the vehicle. The driver was taken to a hospital across the border in Illinois. Illinois police obtained a search warrant and received an inculpatory blood sample from the Illinois hospital taken for treatment purposes, and handed it over to Iowa authorities. Illinois does not recognize a physician-patient privilege in homicide cases, whereas Iowa does. Id. at 881. The Iowa court specifically adopted Restatement (Second) of Conflict of Laws § 139(1), concluded that Illinois was the state of most significant relationship with the communication, and held the blood test results admissible under Illinois law. Eldrenkamp, 541 N.W.2d at 881. Accord Washington v. Donahue, 105 Wash.App. 67, 18 P.3d 608 (2001) (applying Oregon law to admit blood-alcohol evidence where vehicular homicide occurred in Washington but blood sample was drawn in Oregon for treatment purposes); People v. Allen, 336 Ill.App.3d 457, 271 Ill.Dec. 175, 784 N.E.2d 393 (2nd Dist.2003) (holding Iowa privilege law precluding admission applicable where automobile accident occurred in Illinois but blood sample was drawn for treatment purposes in Iowa, but admitting the evidence nonetheless because no special reason existed why the Illinois policy favoring admission should not have been given effect). Other jurisdictions have also seen fit to apply the Restatement approach in cases involving other forms of privilege.

For these reasons, we conclude that conflict of laws related to the recognition of the privileges of foreign jurisdictions will be resolved under the “significant relationship with the communication” approach outlined in Restatement (Second) of Conflict of Laws § 139.

Applying the Restatement approach to this case, the state with the most significant relationship to the communication is the state where the communication occurred unless there is a prior relationship between the parties to the communication. Id. § 139 cmt. e. Here, the communication occurred in Wisconsin, the state with the most significant relationship to the communication, and there was no prior relationship between the hospital and Heaney. Furthermore, there is no strong public policy reason in Minnesota for excluding the evidence. On the contrary, the state’s interest in prosecuting those who violate the state’s criminal vehicular operation laws counsels admission of the evidence. See, e.g., State v. Oevering, 268 N.W.2d 68 (Minn.1978) (holding that the natural exigency related to the collection of blood-alcohol evidence justifies a non-consensual blood-alcohol test when a Minnesota peace officer has probable cause to believe that criminal vehicular operation has occurred); State v. Lee, 585 N.W.2d 378 (Minn.1998) (holding that removal of a blood sample without consent when a Minnesota peace officer has probable cause to believe that the sample will yield evidence of gross misdemeanor criminal vehicular operation). Thus, the local law of Wisconsin applies and the evidence is admissible in Minnesota. We hold that, under the “most significant relationship with the communication” rule, the Wisconsin blood-alcohol evidence is admissible in Heaney’s trial in Minnesota.

Reversed and remanded.

ANDERSON, G. BARRY, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . We do not reach the question of whether it was proper for a Minnesota peace officer to go outside Minnesota's borders and attempt to compel a blood sample under Minnesota law. In this case, the sample was obtained using Wisconsin's procedure inside Wisconsin's borders and our holding is limited to these facts.

      . Both parties make arguments regarding Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and State v. Oevering, 268 N.W.2d 68 (Minn.1978). These cases, due to the natural exigency involved in obtaining blood-alcohol evidence, recognize the power of a peace officer to compel a blood sample from a driver where there is probable cause to believe the driver has violated a criminal vehicular operation law. These cases do not, however, create a general exception to Minnesota's physician-patient privilege statute such that there is no conflict of laws between Minnesota and Wisconsin in the present case. Schmerber and Oevering balance the state's prosecutorial interest and the need to quickly gather blood-alcohol evidence against the driver’s right to privacy. They say nothing regarding the entirely distinct policy of the physician-patient privilege statute, which is to promote unfettered communications between patient and doctor to facilitate proper medical diagnosis and treatment. State v. Staat, 291 Minn. 394, 397, 192 N.W.2d 192, 195-96 (1971). Despite the fact that the theory behind the physician-patient privilege statute is highly speculative, see Snyker v. Snyker, 245 Minn. 405, 408, 72 N.W.2d 357, 359 (1955), the policies of Schmerber and Oevering are simply inappo-site to the question of medical privilege.

      . Where exceptions to a statutory privilege are concerned, the court “prefer[s] * * ⅜ to defer a policy determination * * ⅝ to the legislature.” Gianakos, 644 N.W.2d at 420. This court has ultimate authority over eviden-tiary questions including privileges under the Minnesota Constitution, State v. Erickson, 589 N.W.2d 481, 485 (Minn.1999), but generally defers to statutory evidentiary rules as a matter of comity. See State v. Lanam, 459 N.W.2d 656, 658 (Minn.1990).

      . See, e.g., Indep. Petrochemical v. Aetna Cas. & Sur. Co., 117 F.R.D. 292, 295 (D.D.C.1987) (holding that letters from insured's attorney to accounting firm not privileged under the law of the state with the most significant relationship to the communication and compelling production); Anas v. Blecker, 141 F.R.D. 530 (M.D.Fla.1992) (holding that Illinois law had most significant relationship to communications between defendant appraiser and association of realtors during a disciplinary hearing held in Illinois and finding a special reason why forum policy favoring admission should give way to realtor association’s strict confidentiality policy); Ford Motor Co. v. Leggat, 904 S.W.2d 643, 647 (Tex. 1995) (holding that the law of Michigan rather than the forum applied to manufacturer's claim of attorney-client privilege in a products liability suit because the communication took place in Michigan and therefore Michigan had most significant relationship to communication); Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill.2d 103, 59 Ill.Dec. 666, 432 N.E.2d 250 (1982) (applying significant relationship test to attorney-client and work-product privileges and determining that special Illinois policy favoring admission outweighed Wisconsin’s contrary approach where an excavation device designed and built by Wisconsin defendant caused mine collapse in Illinois).


source: Caselaw Access Project

author: FORSBERG, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Robert A. MILLER, Appellant.
    No. A04-396.
    Court of Appeals of Minnesota.
    Nov. 23, 2004.
    Petition for Review Denied Jan. 26, 2005.

      Mike Hatch, Attorney General, St. Paul, MN, and James C. Backstrom, Dakota County Attorney, Helen R. Brosnahan, Assistant County Attorney, Hastings, MN, for respondent.
    John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; LANSING, Judge; and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

Appellant challenges his conviction for felony DWI, arguing that, because the offense and license revocation dates for the oldest of the three offenses applicable under Minn.Stat. § 169A.24, subd. 1 (2002), were outside the statute’s ten-year look-back period, the enhancement provision does not apply to him. Because the conviction date, which is within the ten-year look-back period, suffices for enhancement, we affirm.

FACTS

On October 2, 2003, appellant Robert A. Miller was arrested and charged with one count of first-degree refusal to submit to testing in violation of Minn.Stat. § 169A.20, subd. 2 (2002). Appellant had three DWI convictions within the preceding ten years: one DWI conviction in 1998 and two aggravated DWI convictions in 1993 and 1996.

Before the district court, appellant moved to reduce the charge from first-degree refusal to submit to testing, a felony, to second-degree refusal, a gross misdemeanor. Appellant argued that Minn. Stat. § 169A.24 (2002), which enhances an impaired driving charge to a first-degree offense if the defendant has three or more “qualified prior impaired driving incidents” in the preceding ten years, did not apply to him. He reasoned that the actual offense and license revocation dates pertaining to the oldest conviction were more than ten years earlier, although the conviction date was within the ten-year look-back period. The district court denied appellant’s motion; he pled guilty as charged and was sentenced to 36 months with a stayed execution resulting in seven years probation. Appellant now challenges the denial of his motion.

ISSUE

When a license revocation occurred more than ten years before an offense, but the conviction for that offense occurred within ten years of the offense, does the conviction suffice for enhancement to a first-degree impaired driving offense under Minn.Stat. § 169A.24, subd. 1 (2002)?

ANALYSIS

Statutory construction is a question of law, which this court reviews de novo. State v. Anderson, 666 N.W.2d 696, 698 (Minn.2003). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). If the statutory language is unambiguous, an appellate court relies on its plain meaning, which manifests legislative intent. In re Estate of Nordlund, 602 N.W.2d 910, 913 (Minn.App.1999), review denied (Minn. Feb. 15, 2000).

Minn.Stat. § 169A.20, subd. 2 (2002), makes refusal to submit to chemical testing a crime. A person who violates Minn. Stat. § 169A.20 will be “guilty of first-degree driving while impaired if the person: (1) commits the violation within ten years of the first of three or more qualified prior impaired driving incidents.” Minn. Stat. § 169A.24 (2002). “ ‘[Qualified prior impaired driving incident’ includes prior impaired driving convictions and prior impaired driving-related losses of license.” MinmStat. § 169A.03, subd. 22 (2002). “When a person has a prior impaired driving conviction and a prior impaired driving-related loss of license based on the same course of conduct, either the conviction or the loss of license may be considered a qualified prior impaired driving incident, but not both.” Minn.Stat. § 169A.09 (2002).

Appellant argues that the enhancement provision does not apply to him, because only the conviction date for the oldest offense, not the offense or license revocation dates, took place within ten years of his most recent violation. Appellant contends that use of the conviction date is inappropriate because similarly situated persons would be treated differently depending on how quickly they were processed through the courts.

Because the statute is unambiguous, this court must rely on its plain meaning. The definition of “qualified prior impaired driving incident” suitable for the ten-year look-back period clearly includes both convictions and license revocations, but does not include offenses. Minn.Stat. § 169A.03, subd. 22. Further, because “qualified prior impaired driving incident” expressly “includes” both convictions and license revocations, the plain meaning of the statutes, when read together, is that, if either of these events took place within the preceding ten years, the offense is eligible for enhancement, under Minn.Stat. § 169A.24. When section 169A.03, subdivision 22, is read in conjunction with section 169A.09, the plain meaning is that, although either a conviction or a license revocation suffices, when both pertain to the same offense only one may be used for enhancement. Thus, because one of the two events defined as a “qualified prior impaired driving incident” pertaining to the oldest offense at issue, namely the 1993 conviction, took place within ten years of appellant’s current offense, it suffices for enhancement of appellant’s current offense.

Appellant argues that, because Minn. Stat. § 169A.24, subd. 1, says “the first of three or more qualified prior impaired driving incidents” (emphasis added), and because the license revocation occurred first in time before the conviction pertaining to the same offense, the statute should be interpreted to mean that the license revocation date must be used instead of the conviction date. This reading defies logic: an offender who had more than the minimum three offenses would escape enhancement because the “first” qualified incident was outside the ten-year period. Clearly the legislature’s inclusion of “three or more” incidents within the ten-year period means that those who offended more than the minimum three times within the preceding ten years would also be subject to enhancement. Thus, appellant’s reading of the word “first” is inaccurate.

Because the conviction date for the oldest of appellant’s three applicable offenses was within ten years of his current offense, the district court did not err when it used appellant’s prior three impaired driving convictions to elevate the current offense to a first-degree felony.

DECISION

Because appellant had the three “qualified prior impaired driving related incidents,” relating to three separate, offenses within the preceding ten years necessary for enhancement to a first-degree offense under Minn.Stat. § 169A.24, subd. 1 (2002), enhancing his guilty plea to a first-degree felony impaired driving offense was appropriate.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . The district court interpreted the statute to mean that only the conviction date applies because it is a criminal proceeding, while the license revocation is a civil proceeding. This reasoning goes beyond the plain meaning of the statute that either a conviction or license revocation suffices for enhancement, hut it does not affect our decision. See Katz v. Katz, 408 N.W.2d 835, 839 (Minn.1987) (stating that this court will not reverse a correct decision simply because it is based on incorrect reasoning).

      . Appellant also argues that he should be able to withdraw his guilty plea because, without three qualified prior impaired driving incidents, his plea to a first-degree felony offense was factually inaccurate. Because we hold that he had three prior qualified impaired driving incidents within the ten-year look-back period, this argument is without merit.


author:
ANDERSON, LEE D., Circuit Judge.
      GILBERTSON, Chief Justice

text:
    2004 SD 120
    DAKOTA TRUCK UNDERWRITERS, Petitioners and Appellants, and Travelers Insurance Company, Petitioners and Appellants, v. SOUTH DAKOTA SUBSEQUENT INJURY FUND, Respondent and Appellee.
    No. 22975.
    Supreme Court of South Dakota.
    Argued April 28, 2004.
    Decided Oct. 27, 2004.

      Mark F. Marshall of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for petitioners and appellant.

      Sara B. Harens, Special Assistant Attorney General, S.D. Department of Revenue & Regulation, Division of Insurance, Pierre, South Dakota, Attorneys for respondent and appellee.
   ANDERSON, LEE D., Circuit Judge.

[¶ 1.] Dakota Truck Underwriters and Travelers Insurance Co. (Insurers) appeal from a circuit court order which dismissed Insurers’ claims for reimbursement from the South Dakota Subsequent Injury Fund (SIF) because Insurers failed to file them claims within the applicable statute of limitations period. The court held that the doctrines of equitable estoppel and equitable tolling did not apply. Due to the unique history and circumstances of these subsequent injury claims, we hold that the doctrine of equitable tolling applied to extend the claims filing period. Insurers’ claims against SIF were timely filed. We affirm, in part, reverse, in part and remand for consideration of the merits of Insurers’ claims.

BACKGROUND

[¶ 2.] For many years prior to July 1, 1999, there was a South Dakota Subsequent Injury Fund. Employers/insurers that paid workers’ compensation benefits to injured employees who had sustained prior injuries were entitled to file a claim for partial reimbursement against SIF. The fund was financed by employers paying an additional surcharge into the fund based upon their workers’ compensation premiums.

[¶ 3.] The statutes dealing with SIF and claims procedures were set forth in SDCL 62-4-34 et seq. The 1992 version of SDCL 62-4-34.1, which was in effect prior to July 1, 1999, provided in pertinent part:

Any claim against the subsequent injury fund shall be filed with the division of insurance within ninety days from the date of the final decision by the department [of Labor] that a compensable injury exists resulting in additional permanent partial or permanent total disability, or approval by the department of settlement between the parties. No claim may be filed prior to a decision or approval of settlement from the department.

[¶ 4.] The South Dakota Legislature repealed SDCL 62-4-34.1 in 1999. 1999 SD Sess.L. ch. 262 § 3. SDCL 62-4-34.7 was enacted to provide a process for resolving outstanding claims. 1999 SD Sess.L. ch. 262, § 1. It required such claims to be filed by June 30,1999. SDCL 62-4-34.7 provided:

Administration of the subsequent injury fund by the Division of Insurance and reimbursement of complete and valid claims shall continue until approved, denied, or settled. Any claim for reimbursement from the subsequent injury fund shall be filed by June 30, 1999. Only those claims timely filed with the division by June 30, 1999, pursuant to the requirements of § 62-4-34.1 in effect prior to July 1, 1999, and completed by October 1, 1999, pursuant to the requirements set forth in § 6241-34.4 in effect prior to July 1, 1999, shall be eligible for reimbursement from the subsequent injury fund. Any claim timely filed by June 30, 1999, and completed by October 1, 1999, as set forth in this section, shall be approved or denied by the division pursuant to the requirements of §§ 62-4-34 to 62-4-36.3, inclusive, in effect prior to July 1, 1999. The division shall continue to make any necessary assessments pursuant to the requirements set forth in § 62-4-35 in effect prior to July 1, 1999, until all eligible claims completed as set forth in this section that are approved by the division or determined by the court to be eligible for reimbursement are paid, and until all matters in litigation concerning the subsequent injury fund are resolved. Any claim in matters being litigated concerning the subsequent injury fund is not eligible for interest or costs. Any remaining balance in the fund after all obligations of the fund have been satisfied shall be deposited in the general fund. Priority of payment shall be determined as of the date and time they are determined by the division to be complete and valid. No claim against the subsequent injury fund is vested until it is complete as set forth in this section. Any completed claim regardless of the date of injury or the date of notice of claim is subject to the two-thirds method of reimbursement pursuant to § 62-4-34 in effect prior to July 1,1999.

[¶ 5.] Insurers in this case had eight potential claims arising out of injuries that had occurred prior to July 1, 1999. However, these claims were neither decided nor were their settlements approved by Department until between November 1, 1999 and December 22, 2000. During this time period, Insurers were aware of the June 30, 1999 deadline for filing claims under SDCL 62-4-34.7. Therefore, Insurers believed it to be a useless act to file claims with SIF after June 30,1999.

[¶ 6.] During 2000-2001 Homestake Mining v. Subsequent Injury Fund, 2002 SD 46, 644 N.W.2d 612 was making its way through the court system. The circuit court judge in that case ruled that the provisions of SDCL 62-4-34.7 and the former 62-4-34.1 worked to unconstitutionally deny Homestake of its right to receive a reimbursement from the fund. Id. 2002 SD 46 at ¶ 6, 644 N.W.2d at 614. Nevertheless, the circuit court ruled the Home-stake claims were untimely filed and granted summary judgment upholding the dismissal of the claims. The judgment was affirmed. Id., 2002 SD 46 at ¶ 37, 644 N.W.2d at 622.

[¶ 7.] During the 2001 legislative session, while the Homestake claims were being litigated in the circuit court, House Bill 1208 was passed extending the deadline for filing a timely claim with SIF.2001 SD Sess.L. ch. 293 § 1. This legislation amended SDCL 62-4-34.7 and allowed claims to be filed for subsequent injuries that occurred before July 1, 2001. It removed the language from § 62-4-34.7 which allowed “only those claims timely filed with the division by June 30, 1999 ...” and stated in pertinent part:

Administration of the subsequent injury fund by the Division of Insurance and reimbursement of complete and valid claims shall continue until approved, denied, or settled. No claim for reimbursement from the subsequent injury fund may be filed based on a subsequent injury that occurs on or after July 1, 2001. Any claim for reimbursement filed as set forth in this section shall be approved or denied by the division pursuant to the requirements of §§ 62-4-34 to 62-4-36.3, inclusive, in effect prior to July 1,1999 ...

[¶ 8.] This amendment appeared to eliminate the quagmire which existed for claims that were vested, but non-ripe June 30, 1999. The 2001 legislative change became effective July 1, 2001.

[¶ 9.] Insurers filed claims for reimbursement from SIF during September 2001, within ninety days of July 1, 2001.

FACTS AND PROCEDURE

[¶ 10.] The facts and sequence of events concerning Insurers’ claims are undisputed by either. party. Insurers filed eight separate claims for reimbursement from SIF.

[¶ 11.] This Court has consistently ruled that in workers’ compensation cases the law in effect when the injury occurred governs the rights of the parties. S.D. S.I.F., 2002 SD 34, at ¶ 3, 641 N.W.2d at 657. Accordingly, following the filing of the claims, Department ruled that the governing law in effect at the time of the subsequent injury controlled. Thus, Department ruled that Insurers were required to file their claims within ninety days of the approval of settlement or determination of the employee’s workers’ compensation claims by Department. Department found that this did not occur and the claims were dismissed as being untimely.

[¶ 12.] Insurers appealed Department’s dismissal of the eight claims to circuit court. Insurers questioned whether Department correctly concluded that Insurers’ claims for reimbursement against SIF were untimely filed. Insurers argued that equitable estoppel, equitable tolling, or both, should apply to relieve them of the effects of the law and allow the presentation of Insurers’ claims.

[¶ 13.] The circuit court held that the doctrine of equitable tolling did not apply to Insurers because the filing of their claims against SIF was not reasonable or in good faith. The court also held that the doctrine of equitable estoppel did not apply since there was neither false representation nor concealment of material facts. The circuit court held that Department properly dismissed Insurers’ claims because they were untimely filed.

[¶ 14.] The issue on appeal is whether the doctrines of equitable tolling or equitable estoppel applied to extend the period within which Insurers could file their claims with SIF.

STANDARD OF REVIEW

[¶ 15.] This case turns on the application of the statute of limitations and interpretation of the effect of a statutory amendment, both questions of law. “Questions of law are reviewed de novo with no deference given to the conclusions of law of the circuit court.” Homestake, 2002 SD 46 at ¶ 12, 644 N.W.2d at 616. “Questions of law are subject to de novo review; no deference is given to an agency’s conclusion of law.” Enger v. EMC, 2000 SD 48, ¶ 7, 609 N.W.2d 132, 134. Further, this Court’s review of the administrative agency’s decision is unaided by any presumption that the circuit court’s review of the agency’s decision was correct. Interstate Tel. Co-op., Inc. v. PUC, 518 N.W.2d 749, 751 (S.D.1994).

[¶ 16.] This Court has not determined its standard of review for equitable tolling. We have, however, recognized that in reviewing the application of the doctrine of equitable estoppel, we are presented with a fully renewable mixed question of law and fact. See Crouse v. Crouse, 1996 SD 95, ¶ 14, 552 N.W.2d 413, 417 (equitable estoppel is reviewed de novo). “Where relevant facts are undisputed and the district court denied equitable tolling as a matter of law, we review the district court’s decision de novo.” Rouse v. Lee, 339 F.3d 238, 247 (4th Cir.2003). We agree and hold that when the facts are undisputed, as they are here, we will apply a de novo standard of review to the applicability of equitable tolling.

ANALYSIS AND DECISION

1. Purpose of a Statute of Limitations

[¶ 17.] SDCL 62-4-34.1 is a statute of limitations. S.D. S.I.F., 2002 SD 34 at ¶ 3, 641 N.W.2d at 657. Traditionally, compliance with statutes of limitations is strictly required and doctrines of substantial compliance or equitable tolling are not invoked to alleviate a claimant from a loss of his right to proceed with a claim. See Peterson v. Hohm, 2000 SD 27, 607 N.W.2d 8. This principle finds justification in the rationale for creating statutes of limitations:

“[t]he purpose of a statute of limitations is speedy and fair adjudication of the respective rights of the parties.” State of Minn. v. Doese, 501 N.W.2d 366, 370 (S.D.1993). See Jiricek v. Woonsocket Sch. Dist. No. 55-4, 489 N.W.2d 348, 350 (S.D.1992); Merkwan v. Leckey, 376 N.W.2d 52, 53 (S.D.1985); Burke v. Foss, 334 N.W.2d 861, 864 (S.D.1983); Chipperfield v. Woessner, 84 S.D. 13, 14, 166 N.W.2d 727, 728 (1969). The trial court also noted that statutes of limitation have allowed people, through “legislative grace,” to be “freed from the consequences of their actions after a statutory period of time resulting in peace of mind for the individual, less docket congestion, fewer administrative problems for the courts, and less work for law enforcement agencies. Stale claims are eliminated.”

Peterson, 2000 SD 27, ¶ 14, 607 N.W.2d at 12.

[¶ 18.] In most cases, this important principle underlining the statute of limitations is appropriately advanced by refusing to judicially modify the harsh effect imposed by a statute of limitations. Nevertheless, courts have recognized an exception in some instances under the doctrines of equitable tolling and equitable estoppel.

2. Equitable Tolling

[¶ 19.] Equitable tolling is the doctrine under which a plaintiff may sue after the statutory time period has expired if he has been prevented from doing so due to inequitable circumstances. See Bailey v. Glover, 21 Wall. 342, 88 U.S. 342, 22 L.Ed. 636 (1874); Shempert v. Harwick Chemical Corp., 151 F.3d 793, 797 (8th Cir.1998).

[¶ 20.] “As a general rule, equitable tolling is a remedy reserved for circumstances that are ‘truly beyond the control of the plaintiff.’ ” Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir.1989); see also Heideman v. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir.1990); Lown v. Brimeyer, 956 F.2d 780, 782 (8th Cir.1992). The doctrine of equitable tolling should be applied where a party acts diligently, “only to find himself caught up in an arcane procedural snare.” Warren v. Department of Army, 867 F.2d 1156, 1160 (8th Cir.1989).

[¶ 21.] In the majority of reported decisions courts have been reluctant to apply equitable principles to relieve a party of the effect of the statute of limitations. In Klein v. Menke, 83 S.D. 511, 517, 162 N.W.2d 219, 222 (1968), a workers’ compensation case, we noted that “we are aligned with those courts where ‘the making or filing of a claim within the required time is jurisdictional ... being an essential element of the right to compensation.’ 100 CJS Workmen’s Compensation § 468(2), pp. 363, 364. Where the making or filing of a timely claim is jurisdictional it cannot be waived or avoided on equitable grounds such as by a waiver or an estoppel.”

[¶ 22.] In Klein, the claim was not filed until more than twenty two months after Klein had returned to his employment. The applicable statute required the claim to be filed within eighteen months. Klein argued that because he had been contacted by the insurer a number of times before the time for filing with the Industrial Commissioner had expired, the doctrine of equitable estoppel should apply. This Court disagreed, holding that the claimant had no justification for not making a timely claim; the facts did not support the finding of an estoppel.

[¶ 23.] In Peterson, 2000 SD 27, 607 N.W.2d 8, we acknowledged the doctrine of equitable tolling, but held it did not apply under the facts of the case. In Peterson, we quoted with approval the North Dakota case Braaten v. Deere & Co., 569 N.W.2d 563, 566 (N.D.1997): “[i]mprudent legal practice is not reasonable conduct and would not invoke equitable tolling.” Both Peterson and Braaten involved similar facts where the plaintiffs sought to bring suits in federal courts only to have them dismissed because diversity jurisdiction was lacking. Even though plaintiffs’ counsel were aware that the cases might be subject to dismissal by the federal courts, they let the statutes of limitation run in the respective state courts before attempting to file their claims in the state forums.

[¶ 24.] For the doctrine of equitable tolling to apply, three things must be shown: “(a) a timely notice, (b) lack of prejudice to the defendant, and (c) reasonable and good-faith conduct on the part of the plaintiff.” Peterson, 2000 SD 27 at ¶ 16, 607 N.W.2d at 13 (quoting Braaten, 569 N.W.2d at 566).

[¶ 25.] The circuit court below made no mention of the first two factors. It is not disputed, however, that Insurers timely filed their claims with SIF within ninety days of the legislature’s curative legislation, which came into effect on July 1, 2001. In addition, there is no basis to conclude that SIF would be prejudiced. Insurers’ claims fall well within the scope of why SIF was initially created. SIF was created to “encourage employers to hire or retain disabled or handicapped workers.” Sioux Falls Sch. Dist. v. South Dakota Subsequent Injury Fund, 504 N.W.2d 107 (S.D.1993). Funding to cover the claims is readily available within SIF to pay the claims of Insurers and, if required, the legislature has provided for continuing assessments to cover such claims. SDCL 62-4-34.7.

[¶ 26.] The circuit court’s reasoning for not applying the doctrine of equitable tolling was that Insurers did not satisfy the third factor: reasonable and good faith conduct. The circuit court noted that Insurers had not filed the claims within ninety days of the determination or the approval of the settlements by Department. Instead, Insurers waited to file their claims with SIF within ninety days following the effective date of the 2001 legislation. The circuit court ruled that Insurers conduct in filing their claims against SIF was not reasonable and in good faith, and that therefore equitable tolling was not applicable.

[¶ 27.] In considering whether Insurers acted reasonably and in good faith, Insurers were entitled to presume that the statute repealing the SIF in 1999 was constitutional and that the procedure barring vested but unripe claims was constitutional as well. See Hancock v. Juvenile Services Center, 2002 SD 69, ¶ 11, 647 N.W.2d 722, 724. Insurers should not have had to file their claims just in case the legislature later would repeal a previous law eliminating their right to file claims. Lex non cogit ad inutilia: the law does not require a useless act. State ex rel. Strothers v. Murphy, 132 Ohio App.3d 645, 725 N.E.2d 1185 (Ohio Ct.App.1999).

[¶ 28.] The conduct of Insurers in filing their claims is readily distinguishable from the conduct of the claimant/plaintiffs in Klein, Peterson, and Braaten. The circumstance which led to Insurers missing the filing deadline under the pre-1999 law was out of Insurers’ hands. The July 1, 1999 cutoff for filing vested but unripe claims created a type of “arcane procedural snare” referred to in Warren, 867 F.2d at 1160.

[¶ 29.] The circuit court erred in holding that Insurers’ conduct was not reasonable and not in good faith. The purpose of SIF is to reimburse worthy claims of employers who had employed persons with prior injuries. As a result of the curative legislation of 2001 extending the claims period, the legislature intended to reimburse vested claims. Any claims which would have been filed after the July 1, 1999 cutoff, and prior to July 1, 2001, would not have proceeded to payment pri- or to enactment of the 2001 amendment. Those claims would only be processed by SIF after July 1, 2001.

[¶ 30.] Further observation of the theory behind statutes of limitations is set forth in Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965):

Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 586, 88 L.Ed. 788. Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.

[¶ 31.] In the case at bar, however, we are not dealing with plaintiffs who have slept on their rights or with burdening defendants with surprise or stale claims. Id. The unique circumstances which were presented to Insurers after July 1, 1999 together with the reinstatement of subsequent injury fund filings by the 2001 legislation, require the application of the doctrine of equitable tolling to extend the filing period for Insurers’ claims for ninety days beyond July 1, 2001.

3. Equitable Estoppel

[¶ 32.] The doctrine of equitable estoppel has four elements:

In order to constitute an equitable es-toppel ... representations or concealment of material facts must exist; the party to whom it was made must have been without knowledge of the real facts; the representations or concealment must have been made with the intention that it should be acted upon; and the party to whom it was made must have relied thereon to his prejudice or injury.

Cooper v. James, 2001 SD 59, ¶ 16, 627 N.W.2d 784, 789. Estoppel cannot exist “if any of these essential elements are lacking, or if any of them have not been proved by clear and convincing evidence.” Id. In application of this doctrine to public entities, equitable estoppel may only be used when an entity actively misled or deceived an individual with the intent to have the individual, or in this case, Insurers, alter their position to his detriment. Erickson v. County of Brookings, 1996 SD 1, ¶ 14-16, 541 N.W.2d 734, 737. There is no evidence of record to indicate any misconduct or misrepresentations by SIF. The circuit court did not err in ruling that equitable estoppel was not applicable.

CONCLUSION

[¶ 33.] The doctrine of equitable tolling does apply to relieve Insurers of the effects of the statute of limitations under SDCL 62-4-34.1. Therefore Insurers’ claims against SIF must be allowed to proceed as timely filed.

[¶ 34.] The order is affirmed, in part, reversed, in part, and remanded for consideration of the merits of Insurers’ claims.

[¶ 35.] ANDERSON, Lee, Circuit Judge for SABERS, Justice, disqualified.

[¶ 36.] ZELL, Circuit Judge for ZINTER, Justice, disqualified.

[¶ 37.] KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 38.] GILBERTSON, Chief Justice, and ZELL, Circuit Judge dissent.

GILBERTSON, Chief Justice

(dissenting).

[¶ 39.] I respectfully dissent. I would affirm the Department of Labor decision, as I agree that neither equitable tolling nor equitable estoppel allow the resurrection of Insurer’s claims.

[¶ 40.] I agree with the Court that the issues in this case turn on the application of the statute of limitations and interpretation of the effect of a statutory amendment. Homestake Mining Co. v. South Dakota Subsequent Injury Fund, 2002 SD 46, ¶ 12, 644 N.W.2d 612, 616. As such, both applications are reviewed by this Court de novo giving no deference to the circuit court’s conclusions of law. Id.

[¶ 41.] As this Court has often stated, “[t]he purpose of a statute of limitations is speedy and fair adjudication of the respective rights of the parties.” Peterson v. Hohm, 2000 SD 27, ¶ 14, 607 N.W.2d 8, 12 (quoting Minn. v. Doese, 501 N.W.2d 366, 370 (S.D.1993)) (citing Jiricek v. Woon-socket Sch. Dist. No. 55-1, 489 N.W.2d 348, 350 (S.D.1992); Merkwan v. Leckey, 376 N.W.2d 52, 53 (S.D.1985); Burke v. Foss, 334 N.W.2d 861, 864 (S.D.1983); Chipperfield v. Woessner, 84 S.D. 13, 14, 166 N.W.2d 727, 728 (1969)). The statute of limitations in workers compensation cases is jurisdictional in nature, as making a timely claim is an essential element of the right to compensation. Klein v. Menke, 83 S.D. 511, 517, 162 N.W.2d 219, 222 (1968) (citation omitted).

[¶ 42.] It is a “well established principle that statutes of limitation applicable to suits [or claims] against the government are conditions attached to the sovereign’s consent to be sued and must be strictly construed.” Kreiger v. United States, 539 F.2d 317, 320 (3rd Cir.1976) (citing Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306, 311 (1957)) (holding statute of limitations should not be equitably tolled for taxpayer who filed a refund claim after the applicable statute of limitations). The United States Supreme Court has stated that the remedy of equitable tolling should be applied “sparingly” when the government is the defendant and extends no further than its use for claims between private litigants. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457, 112 L.Ed.2d 435, 444 (1990). Equitable tolling has been upheld by that Court in just two instances: when a defendant has filed a defective pleading within the statutory period, or where the plaintiff was induced or tricked by the defendant’s conduct into allowing the statute of limitations to expire. Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58. The doctrine has never been applied to a “garden variety claim of excusable neglect.” Id.

[¶ 43.] Despite the favor with which statute of limitations defenses are met in the courts, an additional exception to their harsh outcome may be appropriate when a plaintiff acts “with ‘utmost diligence,’ only to find himself caught up in an arcane procedural snare.” Warren v. Department of Army, 867 F.2d 1156, 1160 (8th Cir.1989). In Warren, the pro se plaintiff filed his complaint within the time requirements of the applicable statute of limitations, but due to confusing language in the procedures provided to the plaintiff by the government, the plaintiff did not name the correct government official as the defendant. Id. at 1157-58. The case was dismissed by the lower court, but reversed by the Eighth Circuit using the doctrine of equitable tolling. Id. at 1160-61. That court was careful to note that Warren was not a case of imprudent legal practice, but rather confusion on the part of a pro se plaintiff created by the government itself. Id.

[¶ 44.] Imprudent legal practice is not reasonable conduct sufficient to invoke eq-nitable tolling. Peterson, 2000 SD 27, ¶ 16, 607 N.W.2d at 13 (quoting Braaten v. Deere & Company, 569 N.W.2d 563, 564 (N.D.1997)). When the doctrine has been applied in favor of the plaintiff in South Dakota, the plaintiff has been victimized by active, fraudulent conduct on the part of the defendant. See Smith v. Neville, 539 N.W.2d 679, 682 (S.D.1995) (holding equitable tolling applied when state and state’s insurance adjuster engaged in affirmative conduct that would have led a reasonable person to believe the state had received timely notice of the claim).

[¶ 45.] I agree with the U.S. Supreme Court that the doctrine should apply no further when the defendant is the government than when the defendant is a private litigant. Without active fraud or concealment on the part of the government, the doctrine of equitable tolling should not act to subvert the clear intent of the legislature when enacting a statute of limitations.

[¶ 46.] Insurers in the present case fall outside the two situations in which the U.S. Supreme Court has employed the doctrine of equitable tolling. Insurers did not timely file within the 90-day period as required by the pre-1999 version of SDCL 62^4-34.1. Nor did the government engage in any deceptive conduct to trick Insurers into missing the statute of limitations. Despite the absence of fraudulent or active conduct on the part of SIF, the Court focused on the diligence of the Insurers.

[¶ 47.] I fail to see how Insurers acted with 'the “utmost diligence” in the present case. In their brief, Insurers make much of the background of the two claims examiners involved in the eight claims at issue, and their reliance on copies of the South Dakota code provided by their employer, Risk Administration Services. (Appellant Br. at 14). One clerk was a high school graduate, and the other had an associate degree. Id. Insurers would have this Court believe that “utmost diligence” for Risk Administration and Insurers amounted to two hardworking employees, without legal training, determining how to interpret revisions to SDCL 62-4-34.7. For the term “utmost diligence” to have any meaning in this context, Insurers must have at the very least had legal counsel attempt to discern the correct course of action with regard to the SIF claims. This, Insurers failed to do and now wish to assert that they acted with “utmost diligence” in attempting to process their SIF claims.

[¶ 48.] Insurers’ conduct at best approaches the level of “garden variety excusable neglect” held insufficient to invoke equitable tolling in Irwin, and at worst a complete failure to obtain legal advice on how to process SIF claims given the changes in the statutory scheme. More importantly, there was no active conduct on the part of the government to induce Insurers into missing the 90-day filing deadline, an essential element necessary to invoke equitable tolling.

[¶ 49.] I agree that there was no way for Insurers to know how our decision in Homestake Mining Co. v. South Dakota Subsequent Injury Fund, 2002 SD 46, 644 N.W.2d 612, would re-open the door for SIF claims. But in Homestake, the plaintiffs were without remedy for failure to adhere to the statute of limitations contained in SDCL 62-4-34.1. We cannot now judicially legislate a remedy for Insurers given their failure to adequately investigate and comply with the same provisions in SDCL 62-M-34.1 that cost Homestake its opportunity to recover from the SIF.

[¶ 50.] While the outcome may seem harsh to Dakota Truck Underwriters, the Department correctly applied the provisions of SDCL 62-4-34.1 to Insurers’ claims. For the above reasons I would affirm the trial court and therefore respectfully dissent.

[¶ 51.] ZELL, Circuit Judge, joins this dissent.

      . This Court reviewed the fund and its purpose in South Dakota SIF v. Homestake Mining, 1999 SD 159, 603 N.W.2d 527 and S.D. S.I.F. v. Heritage Mut. Ins. Co., 2002 SD 34, 641 N.W.2d 656.

      .The eight individual claims are as follows:
      1. Dakota Truck Underwriters v. South Dakota Subsequent Injury Fund—HF No. 110, 2001/2002 (Scott Harlan—SIF 0798). The subsequent injury occurred on March 28, 1996 and Department approved settlement of appellant's claim on January 3, 2000. SIF received notice of the claim on September 6, 2001.
      2. Dakota Truck Underwriters v. South Dakota Subsequent Injury Fund—HF No. 139, 2001/2002 (Langley Hughes—SIF 0801). The injury occurred on March 27, 1998. Department approved settlement of appellant's claim on March 23, 2000. SIF received notice of the claim on September 6, 2001.
      3. Trail King West Plant v. South Dakota Subsequent Injury Fund—HF No. 118 2001/2002 (Roxanne Fitzler—SIF 0794). The injury occurred on January 15, 1998 and Department approved settlement of appellant’s claim on January 26, 2000. SIF received notice of the claim on September 10, 2001.
      4. Trail King West Plant v. South Dakota Subsequent Injury Fund—HF No. 165, 2001/2002 (Gilchrist—SIF 0796). The injury occurred on September 1, 1994. The South Dakota Supreme Court determined a compensable injury existed on May 24, 2000. SIF received notice of the claim on September 21, 2001.
      5. Travelers Insurance Company v. South Dakota Subsequent Injury Fund—HF No. 145, 2001/2002 (Gary Duschscherer—SIF 0792). The injury occurred on August 10, 1998 and Department approved settlement of the appellant's claim on December 28, 2001.
      6. Trail King West Plant v. South Dakota Subsequent Injury Fund—HF No. 114, 2001/2002 (Buddy Pauley—SIF 0817). The injury occurred on June 22, 1999 and Department approved settlement of the appellant's claim on February 10, 2000. SIF received notice of the claim on September 28, 2001.
      7. Dakota Truck Underwriters v. South Dakota Subsequent Injuy Fund—HF No. 109 2001/2002 (Gregory Knapp—SIF 0806). The injury occurred on September 19, 1996 and Department approved settlement of appellant’s claim on February 7, 2000. SIF received notice of the claim on September 10, 2001.
      8. Dakota Truck Underwriters v. South Dakota Subsequent Injury Fund—HF No. 115 2001/2002 (Mary Jenkins—SIF 0803). The injury occurred on April 26, 1999 and Department approved settlement of appellant's claim on November 1, 1999. SIF received notice of the claim on September 28, 2001.

      . In Homestake, 2002 SD 46 at ¶ 12, 644 N.W.2d at 616, this Court ruled that the ninety day statute of limitations for filing claims against SIF, which existed under the pre-July 1, 1999 law, still applied once the new statute was found unconstitutional. This Court also ruled that after the limitations period had expired and Homestake had done nothing to preserve its claims during that time, the July 1, 2001 amendment would do nothing to revive the claim.
      On appeal Homestake argued, among other points, that doctrines of equitable tolling and substantial compliance should apply to relieve them of the effects of the limitations period. This Court thereafter affirmed the circuit court, but declined to discuss or rule on the equitable tolling and substantial compliance issues because they were not properly presented to the circuit court.

        Homestake is distinguishable. The equitable tolling doctrine was not preserved for consideration on appeal. In addition, Homestake's claims were never filed with SIF after the underlying employees' worker compensation claims had been settled or decided by Department.

      . In Homestake Mining Co. v. South Dakota Subsequent Injury Fund, this Court held that statute of limitations for SIF claims in effect at the time of the injury, not at the time the claim arose, applied. 2002 SD 46, 644 N.W.2d 612.

      . I agree with the Court that the equitable estoppel issue is without merit.


author: MEIERHENRY, Justice.

text:
    2004 SD 121
    Terry M. BERENS, Plaintiff and Appellee, v. Cristi J. BERENS, Defendant and Appellant.
    No. 23063.
    Supreme Court of South Dakota.
    Argued on Aug. 25, 2004.
    Decided Nov. 3, 2004.
    Thomas H. Frieberg, Drew C. Duncan of Frieberg, Zimmer, Duncan & Nelson, Beresford, South Dakota, Attorneys for plaintiff and appellee.
    Caitlin F. Collier, Vermillion, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] This case involves a custody dispute. The trial court awarded joint legal custody to both parents and physical custody to the father. Mother appeals. She claims the trial court abused its discretion by not appropriately considering the factors previously required by this Court. Specifically, she claims the trial court erred (1) by not considering father’s alleged domestic violence against mother and daughter, (2) by not giving greater weight to father’s mental and physical health and illiteracy, (3) by giving too much weight to the children’s need for access to extended family. She also claims the trial court erred by conditionally awarding custody to mother if she returns to South Dakota.

FACTS

[¶ 2.] The parties, Cristi and Terry Berens, were married in 1993 and have two children, a son age eleven and a daughter age seven. Cristi decided to start divorce proceedings in December of 2001. Upon learning of Cristi’s intentions, Terry became very emotionally upset and threatened suicide. Cristi called the police and Terry was placed on a 24 hour psychiatric hold. After the parties separated in late December, Cristi retained physical custody of the children; Terry had visitation rights. Shortly thereafter, Cristi sought protection orders against Terry. The first protection order was issued ex parte and later dismissed by Cristi in early January 2002. Cristi sought a second protection order in March of 2002, which the court heard and denied. In April of 2002, Cristi sought a third protection order. The trial court granted an ex parte temporary order. This time she alleged Terry had sexually abused the daughter. Cristi claimed that the daughter had told her that Terry had been touching her “privates.” Because of the allegations, Cristi and the children stayed at Children’s Inn, a domestic abuse shelter, for ten days. Specialists examined and interviewed the child but did not conclude sexual abuse had occurred. Cristi dropped her request for a protection order.

[¶ 3.] In addition to Cristi’s allegations of sexual abuse of the daughter, she alleged that Terry had raped her in December of 1999 when she refused his request for sex after a New Year’s Eve party. Terry admits he was highly intoxicated and may have forced her to have sex against her will. Cristi claims that during the marriage Terry manipulated her by demanding sex in exchange for his doing household duties. She also claims he hit her when they were first married.

[¶ 4.] In the summer of 2002, Cristi met a man from Oregon at a friend’s wedding. A few months later, Cristi traveled to Oregon to visit him. In September of 2002, Cristi and the children moved to Oregon without notice to the court or to Terry. Upon arriving in Oregon, Cristi filed a request for a protection order against Terry in an Oregon court, again alleging that Terry had abused and threatened her and had broken into her house. She also alleged he had abused the daughter in 2002, to the extent the daughter was hospitalized.

[¶ 5.] Meanwhile, Terry petitioned the South Dakota court for temporary physical custody of the children, which was granted. Cristi returned the children to Terry. In July of 2003, the custody issue was tried to the court. The court determined it was in the children’s best interests to remain in the physical custody of the father.

STANDARD OF REVIEW

[¶ 6.] We review a trial court’s custody decision on an abuse of discretion standard. Voelker v. Voelker, 520 N.W.2d 903, 906 (S.D.1994), citing Jones v. Jones, 423 N.W.2d 517, 519 (S.D.1988). The trial judge must consider “the best interests of the child in respect to the child’s temporal and mental and moral welfare.” SDCL 25-4-45; Zepeda v. Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d 48, 53 (citing Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 806). We have stated:

On appeal, we review a trial judge’s decision for error in incorrectly choosing, interpreting, or applying the law; for clear mistakes in fact findings; and for undue emphasis on matters not materially related to the child’s welfare. Fuerstenberg, 1999 SD 35, ¶ 35, 591 N.W.2d at 810. We expect that any decision will be balanced and methodical. Id. In considering the relevant evidence, courts should be cognizant of several “guiding principles.” Id., ¶ 28. These include parental fitness, stability, primary caretaker, child’s preference, harmful parental misconduct, and separation of siblings. See generally Fuerstenberg, 1999 SD 35, ¶¶ 23-32, 591 N.W.2d at 806-10. A court is not bound to make a specific finding in each category; indeed, certain elements may not apply in some cases, and, in others, there may be additional relevant considerations. In the end, our brightest beacon remains the best interests of the child. Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d at 53 (citing Fuerstenberg).

Arneson v. Arneson, 2003 SD 125, ¶ 13, 670 N.W.2d 904, 909-10.

ISSUES

I. Whether it was error to award custody to the father in light of the evidence presented to the court.

II. Whether it was error for the trial court to rule that the mother could regain custody if she returned to South Dakota.

DECISION

Allegations of domestic and sexual abuse

[¶ 7.] Cristi claims that the trial court ignored evidence of father’s alleged domestic violence and sexual abuse against mother and daughter. A fair reading of the trial court findings indicates that the court did consider the offered testimony. The court found:

21. That throughout the case, Cristi and her mother were given ample opportunity to explain to the court what the exact acts of violence committed by Terry were and were unable to relate a single incident, other than an allegation of marital rape from December, 1999, which would constitute domestic abuse. That Christi produced no credible evidence of physical abuse or violence other than the allegation of marital rape.
27. That in the Petition for Restraining Order to Prevent Abuse in the State of Oregon, under oath, Cristi indicated to the court that her daughter was in the hospital due to abuse by her father in April, 2002. That [the daughter] was examined at a hospital but was not in the hospital due to abuse. This statement by Cristi was deliberately false.
28. That Cristi acknowledged to the court at trial that when she moved to Oregon, she realized at that time when she moved to Oregon that the allegations of abuse against [the daughter] were unsubstantiated and that there was no finding of abuse in South Dakota by Child’s Voice, the Department of Social Services or the Turner County Sheriffs Office. That Cristi intentionally misrepresented this fact to the court in Oregon by again alleging sexual abuse of the child.
29. That in the Oregon Protection Order proceeding, Cristi alleged that Terry broke into her house. There was no proof that Terry broke into Cristi’s house at any time and this was misrepresented to the Oregon court by Cristi.
30. That in the Petition for Restraining Order to Prevent Abuse filed in the State of Oregon, Cristi, under oath, stated that weapons were involved by stating to the court that “he had guns” when responding to a question about whether weapons were involved in the incidences for which the Petition for Restraining Order was filed.
34. That Cristi lied to obtain a divorce on terms favorable to her, to gain custody and to remove the children from South Dakota without impediments.
35. That Cristi made an allegation of marital rape which allegedly occurred on New Years Eve in 1999/2000 and used this as the basis for her fear of Terry.
36. That Cristi waited nearly a year to report the alleged rape and failed to include it on her initial application for an Ex-Parte Temporary Protection Order.
37.That Cristi’s testimony as it relates to the applications for Protections Orders, reasons for leaving the State of South Dakota and her claimed fear of Terry are not credible.

[¶ 8.] It is clear from the findings that the court seriously doubted Cristi’s credibility concerning the allegations of sexual and domestic abuse. The court additionally found that Cristi’s “false allegations of sexual abuse [were] harmful to the children” and that “the abuse allegations were mere pretext.” Contrary to Cristi’s claim that the court ignored the testimony concerning Terry’s abusive conduct, the court’s findings indicate a careful consideration of her claims. In fact, the court found no credible evidence to support her claims. We are unable to say, based on the record, that the trial court’s findings on this issue were clearly erroneous.

Father’s Fitness

[¶ 9.] Cristi claims that the court ignored the weight of the evidence of Terry’s unfitness. She points to Terry’s mental problems, his high cholesterol, his inability to read, his denying Cristi contact with the children, and his reliance on extended family to help care for the children. In its findings, the trial court acknowledged that Terry could not read or write and had “difficulties in retaining employment due to absences from employment” but had been steadily employed with a company for the last four years. The trial court also found that Terry had “enlisted the assistance of immediate family members, namely his mother and sister, to assist in the care of the children while Terry [was] at work.” Additionally, the trial court found that “Terry’s fitness to parent the children [was] not compromised by his illiteracy.” Taking all of this into consideration the court determined “both parents are fit to be primary custodial parent of the minor children.” The trial court entered findings as follows:

48. That neither parents’ mental or physical health would prevent them from providing parenting skills although both parents’ mental and emotional stress may have adversely affected the children.
49. That both parents have the capacity to meet the children’s basic needs and provide the children with love and affection.

Based upon the evidence, we are unable to say that the trial court’s findings were clearly erroneous.

Children’s Access to Extended Family

[¶ 10.] Cristi claims the trial court inappropriately focused on the children’s access to extended family and elevated the grandparents and extended family roles above the custodial parent. Cristi’s claim is without merit. The trial court only considered the role of the extended family as it related to which parent provided greater stability for the children. The trial court found:

58. That the court finds that Terry provides greater stability for the children in that he has kept the children in an area where they are surrounded by family, in a school with which they are familiar and Terry is not a threat to leave the area where he has been gainfully employed for several years. That the children know family and friends in this area and have lived in this area their entire lives.
54. That Cristi does not provide stability in that she moved herself and the children to the State of Oregon to be near a man whom she had known for only two months, does not have family located in the State of Oregon except for her mother who moved with her, and Cristi does not have any ties to the community to where she has removed herself.

The court reasoned that the existence of extended family in South Dakota provided more stability in comparison to mother’s move to Oregon. The court also found mother did not move to Oregon for better opportunities for her or the children but, instead, moved to pursue a relationship with her boyfriend and “to alienate the children from their father.” Again, we cannot say based on the evidence that these findings are clearly erroneous.

Conditional Custody Award

[¶ 11.] The trial court determined that it was in the best interests of the children for Terry to have primary physical custody with the parties having joint legal custody. The trial court, however, also ordered that Cristi would be entitled to physical custody if she relocated to South Dakota within 30 days. The order provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, if within thirty days (30) of the entry of this order in this matter, the Defendant, Cristi Berens relocates to the State of South Dakota, she shall be entitled to primary physical care, custody and control of the minor children subject to the reasonable right to visitation of the Plaintiff, Terry Berens....

Cristi argues that the order is a conditional award of custody which is prohibited by SDCL 25-4-45. Cristi further argues that the law does not grant the trial court “the power to make conditional determinations.” We agree.

[¶ 12.] Under South Dakota law, the trial court has the duty to decide custody based on the best interests of the child. SDCL 25-4-45 provides:

In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody.

The court also has the power to change custody if a “substantial change of circumstances” is shown. Price v. Price, 2000 SD 64, ¶ 52, 611 N.W.2d 425, 436. Here, the trial court concluded primary physical custody with Terry was in the children’s best interests:

That the best interests of the children in respect to their temporal, mental and moral welfare is served by being in the primary physical custody of Terry and that the parties shall have joint legal custody of the minor children subject to reasonable rights of visitation by Cristi....

Nonetheless, having made that determination, the trial court gave custody to Cristi if she returned to South Dakota within 30 days. Cristi claims that the trial court decided that she should have custody of the two children of the parties, however, made it conditional upon her return to South Dakota. Contrary to Cristi’s claim, the trial court does not specifically conclude it is in the best interests of the children to be in Cristi’s custody. The trial court’s only conclusion as to the children’s best interests refers to Terry as the custodial parent. The court’s findings of fact support that conclusion.

[¶ 13.] The trial court determined that both parents were “committed and desirous of preparing the children for adulthood and in providing ... a good childhood.” The court further found them equal in their ability to provide “exemplary role models.” What tipped the scale in favor of Terry was his ability to provide greater stability — that is, familiar school and community, extended family, father with steady employment. Cristi, on the other hand, was not able to provide stability because of her move to Oregon with a man she had known only briefly. Had circumstances changed and Cristi moved back to South Dakota, she could have requested the court to change custody based on the best interests of the children standard. For the court to grant, Cristi conditional custody without examining the change of circumstances or without determining the best interest of the children, was an abuse of discretion. The court could not foresee whether Cristi’s return to South Dakota would be in the children’s best interests. Her situation after the move was only conjecture. She may have chosen to move to a different location in South Dakota under a totally different scenario from before she left. We agree with Cristi that the trial court abused its discretion including the conditional award of custody. However, this does not entitle her to relief. The trial court did not find it was in the best interests of the children for Cristi to have custody. The trial court’s only determination as to the best interests of children was in favor of Terry. Consequently, the trial court’s award of custody to Terry is not an abuse of discretion.

[¶ 14.] Cristi also claims that the order was an abuse of discretion because it prevented her moving from the jurisdiction. She cites Fortin v. Fortin as support. 500 N.W.2d 229 (S.D.1993). In For-tin, we found that the trial court abused its discretion because it “prohibited the custodial mother from moving her son with her to Ohio for the sole reason that the move would disrupt the noncustodial father’s visitation with and influence over his son, of whom he never sought custody.” Id. at 232. Fortin does not lend support to Cristi’s position. It is distinguishable because the father in Fortin sought a restraining order; he did not seek custody. A parent has a right to move from the jurisdiction if the move does not harm the children. SDCL 25-5-13 provides:

A parent entitled to the custody of a child has the right to change his residence, subject to the power of the circuit court to restrain removal which would prejudice the rights or welfare of the child.

Also notable is that father in Fortin gave mother custody and “never sought custody after he learned of the move.” 500 N.W.2d at 233. Here, Terry, upon learning that Cristi had moved the children to Oregon, took immediate action to have the children returned. Further, he sought custody of them. Based on the evidence, the trial court concluded that both parents were fit to be the children’s primary custodian; however, it was not in the best interest of the children to move with Mother. The court has the responsibility to look at what is in the best interest of the children. Moving away from family, friends and familiar surroundings may, in some cases, not be in their best interests. Based on the evidence, the court awarded joint custody and physical custody to the parent remaining in the community, i.e. the father. We cannot say under the facts of this case, the court abused its discretion.

[¶ 15.] We affirm.

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