author: AMUNDSON, Justice. KONENKAMP, Justice

text:
    2001 SD 94
    WEBSTER EDUCATION ASSOCIATION, Petitioner and Appellee, v. WEBSTER SCHOOL DISTRICT # 18-4 and Board of Education, Respondents and Appellants.
    No. 21687.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2001.
    Decided July 18, 2001.

      Anne Crowson Plooster, South Dakota Education Association, Pierre, SD, Attorney for petitioner and appellee.
    Thomas H. Harmon of Tieszen Law Office, Pierre, SD, Attorneys for respondents and appellants.
   AMUNDSON, Justice.

[¶ 1.] The Webster School District (District) appeals the Department of Labor’s (DOL) decision to require the District to negotiate its reduction in force (RIF) and Recall Policy with Webster Education Association (WEA). We affirm.

FACTS

[¶ 2.] Pursuant to the parties’ stipulation, the facts are as follows. WEA and the District pursued a course of collective bargaining for the 1998-1999 school year. Negotiations were ultimately unsuccessful and the District declared an impasse on May 27, 1998. Pursuant to the rules of an impasse, the District implemented its “last best offer” on September 28, 1998. Of the items implemented through the “last best offer,’’only the matter of staff reduction and recall are subject to this appeal.

[¶ 3.] As part of the “last best offer,” the District removed the previous RIF and Recall Policy from the negotiated agreement and made the policy a non-negotiated board policy. This action caused the WEA to file an unfair labor practices complaint dated February 8, 1999, with the DOL. The DOL found that the District had committed unfair labor practices when it removed the RIF and Recall Policy from the negotiated agreement and unilaterally modified the policy. The DOL stated in its memorandum decision that

Although the decision whether or not to reduce force, or whether or not to recall is a matter for determination by the school districts, and is a matter that should be within the sole discretion of the school districts; the procedure or policy concerning how to reduce force or how to recall, and what criteria are to be used in making these decisions is not a matter that should be within the sole managerial discretion of the school districts.

The District appealed the DOL’s decision, and on August 23, 2000, the circuit court affirmed. The District appeals, raising the following issue:

Whether the RIF and Recall Policy is subject to mandatory negotiation as “other conditions of employment,” under SDCL 3-18-3.

STANDARD OF REVIEW

[¶ 4.] Our legislature has recently revised our standard of review for agency decisions: “Findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous[.]” SDCL 15-6-52(a). Since the parties stipulated to the facts before the DOL, the issues presented to the circuit court were solely legal issues to be reviewed de novo. Sisseton Educ. Assoc. v. Sisseton Sch. Dist., 516 N.W.2d 301 (S.D.1994); Oberle v. City of Aberdeen, 470 N.W.2d 238 (S.D.1991).

DECISION

[¶ 5.] Under SDCL 3-18-3, in order to be a negotiable item for public employees, the subject must be related to “rates of pay, wages, hours of employment, or other conditions of employment.” In Rapid City Educ. Ass’n v. Rapid City Sch. Dist. No. 51-4, 376 N.W.2d 562 (S.D.1985), this Court further defined the terms and conditions of employment which are subject to negotiation by adopting the three-part test applied by the Supreme Court of New Jersey in In re Local 195, IFPTE, AFL-CIO v. State, 88 N.J. 393, 443 A.2d 187 (1982), namely:

(1) a subject is negotiable only if it ‘intimately and directly affectfs] the work and welfare of public employees .... ’
(2) an item is not negotiable if it has been preempted by statute or regulation ...
(3) a topic that affects the work and welfare of public employees is negotiable only if it is a matter ‘on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy.’

Rapid City Educ. Ass’n, 376 N.W.2d at 564. If the challenger can satisfy all three prongs, the subject must be negotiated.

[¶ 6.] First, we must determine whether WEA has met its burden of showing that the RIF and Recall Policy is a subject which “intimately and directly affect the work and welfare of public employees.” A tenured teacher may only be non-renewed for “just cause” according to SDCL 13-43-6.1 or under RIF. RIF, as one of only two possible safe harbors that protect a teacher from non-renewal, highlights the importance of having a mandatory negotiable policy. Without such policy, a teacher would only have SDCL 13-43-6.1 as a source of protection of his or her rights from non-renewal. Therefore, it is clear that the RIF and Recall Policy “intimately and directly affects the work and welfare” of the teachers to whom it may apply. As the DOL and the circuit court found that WEA met the first prong, and the District has not shown any error as to that conclusion, we will focus our attention to prongs two and three.

[¶ 7.] Next, the District contends that the state legislature’s repeal of SDCL 13-10-11 and the subsequent enactment of SDCL 13-43-6.4 obviate the mandatory nature of negotiating the RIF and Recall Policy. It is clear the legislature did not preempt the field when it repealed SDCL 13-10-11 and enacted SDCL 13-43-6.4.

[¶ 8.] SDCL 13-10-11 merely provided that “[a]ll school boards shall establish a written policy for teacher reduction and recall.” There is nothing in SDCL 13-10-11 itself that made a RIF policy mandator-ily negotiable. Likewise, SDCL 13-43-6.4 does not involve the negotiability of the RIF and Recall Policy. SDCL 13-43-6.4 states, in pertinent part, that “if a teacher’s contract is not renewed due to a reduction in staff, only written notice is required, which shall be provided by the school board to the teacher by April fifteenth.” The statute makes no mention of negotiability, or whether it is discretionary or mandatory. Therefore, the legislature has not enacted or repealed legislation contrary to our well-settled principles of public employment law.

[¶ 9.] The above two statutes clearly do not provide a basis for preemption of the RIF and Recall Policy from negotiation. As the New Jersey Supreme Court stated in Township of Old Bridge Bd. of Educ. v. Old Bridge Educ. Ass'n, 98 N.J. 523, 489 A.2d 159, 162 (1985), “[n]egotiation on terms and conditions of employment will be preempted by a statute or regulation if the provision addresses the particular term or condition ‘in the imperative and leaves nothing to the discretion of the public employer..’ ” On appeal, the District has not shown how SDCL 13-10-11 and SDCL 13-43-6.4 preempt the negotiability of the RIF and Recall Policy.

[¶ 10.] The third prong of whether the “topic that affects the work and welfare of public employees is negotiable only if it is a matter ‘on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy’ ” is also met. In Oberle, this Court stated:

In the context of public sector labor disputes, to take an otherwise mandatory subject of negotiation out of the scope of required bargaining, there must be a significant impairment of the ability of the employer to determine public policy. We are required to balance the competing interests by considering the extent to which collective negotiations will impair the determination of governmental policy.

470 N.W.2d at 246 (internal citations omitted). We agree with the DOL’s analysis that the procedure or policy concerning how to reduce force or how to recall is not a matter solely within the managerial discretion of the school districts. The District has the exclusive managerial discretion to make decisions as to when to implement its RIF and Recall Policy, but once the District exercises such discretion, the procedure laid out in the RIF and Recall Policy is subject to mandatory negotiation.

[¶ 11.] There is a “distinction between the public employer’s substantive decision to transfer or assign employees and the procedural process to be followed [after] making such a decision.... The former constitutes inherent managerial prerogatives, while the latter does not.” Township of Old Bridge, supra at 162 (emphasis in original). “[T]he decision to reduce staff is a managerial decision for the school board and thus is not mandatorily negotiable. However, the mechanics for termination or non-renewal of teachers as a result of reduction of staff are manda-torily negotiable items.” Thompson v. Unified School Dist. No. 259, Wichita, 16 Kan.App.2d 42, 819 P.2d 1236, 1239 (1991) (emphasis added). Because the RIF and Recall Policy is procedural or mechanical in nature, it does not circumscribe, the District’s inherent governmental prerogatives. Therefore, the third prong is met.

[¶ 12.] Affirmed.

[¶ 13.] MILLER, Chief Justice, and GILBERTSON, Justice, and RUSCH, Circuit Judge, concur.

[¶ 14.] KONENKAMP, Justice, concurs in result.

[¶ 15.] RUSCH, Circuit Judge, sitting for SABERS, Justice, disqualified.

KONENKAMP, Justice

(concurring in result).

[¶ 16.] The majority opinion reaches the correct conclusion, and I concur with it. The parties agreed to de novo appellate review. But whether we apply the standard of review from SDCL 15-6-52(a) to agency fact findings on disputed or undisputed facts must be left for another day.

       It is clear from the policy instituted pursuant to the last best offer that such policy applies to tenured teachers. The policy states that "staff reduction occurs when the board eliminates all or any of a contract held by anyone whom continuing contract applies.... ” The policy speaks for itself. Those teachers subject to continuing contract law are tenured teachers.


source: Caselaw Access Project

author: SABERS, Justice. AMUNDSON, Justice

license: Public Domain

text:
    2001 SD 93
    STATE of South Dakota, Plaintiff and Appellant, v. Christina HODGES, Defendant and Appellee.
    No. 21730.
    Supreme Court of South Dakota.
    Argued April 26, 2001.
    Decided July 18, 2001.

      Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellant.
    Gregory T. Brewers of Frieberg, Rudolph & Nelson, Beresford, SD, Attorneys for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Christina Hodges was a passenger in a vehicle stopped for excessive speed. After the vehicle was stopped, Hodges exited the vehicle and proceeded into an adjacent building despite North Sioux City Police Officer Jason Nelson’s repeated orders to stop. Officer Nelson followed Hodges and entered the women’s restroom to confront her, believing she was attempting to flush a controlled substance. Hodges was placed under arrest for obstruction of a law enforcement officer. The search incident to that arrest revealed a controlled substance. The trial court suppressed the controlled substance, reasoning it was the fruit of the poisonous tree. We reverse and remand.

FACTS

[¶ 2.] On February 16, 2000, between eleven and midnight, Officer Nelson noticed a vehicle traveling in excess of the speed limit. The vehicle stopped in the Dakota Rose Casino parking lot. Officer Nelson pulled into the lot behind the vehicle with his lights activated. The passenger, Hodges, exited the vehicle and began walking toward the casino entrance. The driver of the vehicle also attempted to exit the vehicle. Officer Nelson ordered the driver of the vehicle to remain inside the vehicle. The driver complied with the request.

[¶ 3.] Officer Nelson testified he was approximately fifteen feet from the vehicle and Hodges when he ordered her to stop in a normal tone. When she did not turn or respond and “appeared to walk faster” he increased his tone. Officer Nelson testified “I asked her to stop at least four times prior to her getting to the door.” When asked if he was yelling at her, Officer Nelson indicated “the last two or three times I was yelling.” Hodges did not stop. She entered the casino door approximately thirty to forty feet away from the officer. Officer Nelson immediately followed Hodges into the casino. “I asked where the female went that came running in here. [The bartender] said she ran towards the bathroom.”

[¶ 4.] Officer Nelson pounded on the restroom door, identified himself as a police officer and ordered Hodges out. With no response, Officer Nelson entered the restroom and noticed Hodges standing in a single stall with the door open. Unable to see her hands, he demanded that Hodges show them. Hodges did not comply with this order and instead turned away from him and backed toward the corner of the stall. Losing sight of Hodges and believing she was attempting to conceal something, Officer Nelson entered the stall.

[¶ 5.] He observed Hodges with her pants unbuttoned and partially down. Officer Nelson then ordered her to pull up her pants. After no response, he pulled up her pants for her. There was a brief struggle as Officer Nelson attempted to force Hodges to show her hands. Officer Nelson placed Hodges under arrest for obstruction of a law enforcement officer.

[¶ 6.] Hodges later explained that she had needed to use the restroom. However, there was no evidence she used the restroom at the casino or within the first hour at the jail. In response to Officer Nelson’s question whether she was attempting to conceal anything, she responded “I don’t use drugs.” Officer Nelson conducted a search of Hodges following the arrest and discovered a contact case in her purse containing a controlled substance.

[¶ 7.] The trial court granted Hodges’ motion to suppress the controlled substance, reasoning it was the product of an unconstitutional search and seizure. The State filed this intermediate appeal raising two issues:

1. Whether the trial court erred in holding there was no basis for an investigative stop of Hodges.
2.Whether the trial court erred in suppressing the drug evidence under the “fruit of the poisonous tree” doctrine.

STANDARD OF REVIEW

[¶ 8.] We have recently clarified our standard for reviewing a motion to suppress. A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488. See also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996) (standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993). We review findings of fact under the clearly erroneous standard. State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994). Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N.W.2d 606, 610. Whether a law enforcement officer had a lawful basis to conduct a warrantless search incident to an arrest is reviewed as a question of law. State v. Sleep, 1999 SD 19, ¶6, 590 N.W.2d 235, 237.

[¶ 9.] 1. WHETHER THE TRIAL COURT ERRED IN HOLDING THERE WAS NO BASIS FOR AN INVESTIGATIVE STOP OF HODGES.

[¶ 10.] The trial court determined that Officer Nelson had no legally justifiable reason to detain Hodges. Additionally, the trial court determined as a matter of law:

1. Every person has a right to oppose an illegal arrest, and may engage in flight in order to do so.
2. Mere flight by a person does not authorize that person’s arrest as a fugitive, nor may it be considered as a circumstance to establish probable cause for an arrest.
3. The conduct of Officer Nelson exceeded the bounds of a reasonable search and seizure of [Hodges] when he entered the women’s restroom of the Dakota Rose Casino.
4. The State failed to meet its burden to prove that the detention, arrest and search of [Hodges] fell within one of the exceptions to the warrant requirement.

[¶ 11.] “The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures and is implicated when a vehicle is stopped.” State v. Vento, 1999 SD 158, ¶ 18, 604 N.W.2d 468, 470. It is not disputed that Officer Nelson justifiably stopped the vehicle for a traffic violation in which Hodges was a passenger. Hodges urges that while the stop was legitimate, there was no basis to require her to remain at the scene nor to subsequently detain and then arrest her for obstructing a law enforcement officer. In support of her position, Hodges cites to authority indicating that a citizen is free to avoid contact with police if they desire. See Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229, 236 (1983). We find that authority inapplicable to these facts.

[¶ 12.] We recognize that in an everyday encounter, a citizen has the right to: choose to not speak with police officers, decline to listen to them and instead go about their business just as they would with any other person. See id. A citizen “may not be detained even momentarily without reasonable, objective grounds for doing so.” Id. However, the situation is different when the setting of that encounter changes.

[¶ 13.] A passenger in a vehicle justifiably detained by law enforcement is in a much different situation then a mere passerby on the street. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41, 48 (1997). As recognized by the United States Supreme Court:

[D]anger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

Id.

[¶ 14.] In so holding, the United States Supreme Court approvingly analogized that “although no special danger to the police is suggested” the officer is justified in ordering a passenger out of the vehicle as “the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Id. We find this rationale equally applicable to prevent a passenger from walking away from the vehicle without reason. See also State v. Richards, 1998 SD 128, ¶ 11, 588 N.W.2d 594, 596 (recognizing that a “stop of a vehicle is a seizure of all its occupants.”).

[¶ 15.] Hodges maintains that she was within her rights to ignore the officer and to walk away from the vehicle, as there was no basis for any investigative stop. The United States Supreme Court has recently stated that circumstances surrounding an unprovoked flight may provide an officer with a reasonable suspicion for further investigation. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 577 (2000). The Court further determined that this rationale is consistent with Florida v. Royer which held “that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police.” Id. Instructively, the Court further recognized that “[e]ven in Terry v. Ohio, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. Terry recognized that the officers could detain the individuals to resolve the ambiguity.” Id. (citing Terry v. Ohio, 392 U.S. 1, 88 SCt 1868, 20 L.Ed.2d 889 (1968)).

[¶ 16.] Our standard for determining whether Officer Nelson had a reasonable suspicion for further investigation is an objective one. “Whether reasonable suspicion exists when the stop was made is a determination based on an objective standard: would the facts observable to the law enforcement officer at the time of the stop entitle an officer of reasonable caution to believe the action taken was appropriate?” State v. Vento, 1999 SD ¶ 8, 604 NW2d at 470. A subjective belief is not the proper standard. Id. ¶ 11 (quoting Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89, 98 (1996) “subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.”)

[¶ 17.] Here, Officer Nelson was entitled to require the passenger to remain at the scene. This limited detention is a right to temporarily freeze the situation. Exercising this right, Officer Nelson requested Hodges to remain at the vehicle four times, at least twice yelling a stop command to Hodges with no response. At this point, the brief detention to control the scene began to change as Officer Nelson witnessed events which created “a reasonable suspicion supported by articulable facts that criminal activity may be afoot.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989). “Actual proof that criminal activity is afoot is not necessary.” Hamlin v. Commonwealth, 33 Va.App. 494, 534 S.E.2d 363, 366 (2000). Things may have been different if Hodges had explained that she urgently needed to use the restroom. Her failure to provide a reasonable explanation for hurrying away was inexcusable. Officer Nelson was then justified in making a Terry type stop of Hodges. “Terry recognizes that it may be the essence of good police -work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in the light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1971).

[¶ 18.] Despite Hodges assertion to the contrary, “Terry accepts the risk that officers may stop innocent people.” Wardlow, 528 U.S. at 126, 120 S.Ct. at 677, 145 L.Ed.2d at 577. While attempting to effectuate this Terry type stop, Officer Nelson was faced with Hodges’ flight to a nearby building. Only after following Hodges did Officer Nelson learn she had run to the restroom. He knocked on the door and ordered Hodges out, without response from her. Officer Nelson then entered the restroom and observed Hodges engaging in activity that created a reasonable suspicion criminal activity was afoot. If during or after a Terry stop an officer learns facts rising to the level of probable cause the arrest is constitutionally firm. Id. Hodges refusal to comply with the order to show her hands and attempt to avoid the officer culminated in probable cause for her arrest for obstruction of a law enforcement officer.

[¶ 19.] Therefore, we reject the trial court’s holding and conclude that under these circumstances, Officer Nelson had reason to detain and subsequently had probable cause to arrest Hodges.

[¶ 20.] 2. WHETHER THE TRIAL COURT ERRED IN SUPPRESSING THE DRUG EVIDENCE UNDER “THE FRUIT OF THE POI-SIONOUS TREE” DOCTRINE.

[¶ 21.] We conclude that Officer Nelson was justified in ordering Hodges to remain at the scene. Additionally, he had reasonable suspicion to investigate further when she refused to comply with his order to remain at the scene. In attempting to effectuate an investigative stop, Officer Nelson observed events that created probable cause for an arrest for obstruction of a law enforcement officer. As such, the contraband found in Hodges’ possession was constitutionally seized as a search incident to a lawful arrest.

[IT 22.] “A search incident to arrest permits a warrantless search of an individual and of the area within [her] immediate vicinity following [her] arrest, so long as the search is contemporaneous with the arrest and is confined to the Immediate vicinity of the arrest.” State v. Meyer, 1998 SD 122, ¶ 25, 587 N.W.2d 719, 724 (citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). In such circumstances, the search is justified to secure any weapons and prevent the destruction or concealment of evidence. Id.

[¶ 23.] Our inquiry involves only whether probable cause for the arrest existed and not whether the evidence would support a conviction. See Adams, 407 U.S. at 148, 92 S.Ct. at 1921, 32 L.Ed.2d at 618 (1972). Officer Nelson had probable cause for arresting Hodges for “impairing] or hindering] the enforcement of the criminal laws or the preservation of the peace by a law enforcement officer.” SDCL 22-11-6. As such, the search of the purse carried by Hodges into the restroom was legitimate and the contact case containing the controlled substance found therein was admissible.

[¶ 24.] We reverse and remand.

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

[¶ 26.] AMUNDSON, Justice, dissents.

AMUNDSON, Justice

(dissenting).

[¶ 27.] The majority has all but eviscerated general principles of Fourth Amendment jurisprudence with this decision. No longer can an ordinary citizen avoid contact with law enforcement as he or she wishes.

[¶ 28.] The majority relies upon Maryland v. Wilson for the position that a passenger must submit to law enforcement’s authority for merely being part of the stop of the driver. In Wilson, however, there appeared to be an articulable individual suspicion for ordering the occupants out of the vehicle. In Wilson, the state trooper, with his lights activated, followed the vehicle for a mile and a half before it stopped. The trooper also observed the occupants ducking below sight level, and then reappear. In addition, instead of remaining in the vehicle, the driver met the officer halfway and upon returning to the vehicle the front-seat passenger was sweating and appeared nervous. Based on these facts, the Wilson court reasoned that the danger to the officer is greater when occupants are present; therefore, compelling occupants out of the vehicle for safety reasons did not offend Fourth Amendment protections. In the case before us, however, there is no factual basis to support a finding of a heightened danger to the officer’s safety due to an occupant fleeing the scene. Quite simply, there was no observed suspicious activity in the case before us.

[¶ 29.] In Wilson, a further distinguishable fact is that the trooper observed a crack vial fall from the passenger’s person when exiting the vehicle. Here, the contraband was not discovered until after Officer Nelson chased Hodges into a bathroom stall, placed her under arrest and subsequently searched her purse. The facts of this case do not support the rationale behind Wilsm that in order to preserve officer safety, all occupants must exit the vehicle when ordered to do so by law enforcement. Here, officer safety, whether real or apparent, is of no concern. If Hodges had already exited the vehicle and was moving in a direction away from the officer how is that rationale being fulfilled? I fail to see how the rationale enunciated in Wilson applies to the case before this Court.

[¶ 30.] In addition, Officer Nelson had no individualized, particular suspicion attributable to Hodges other than her choice to avoid police inquiry. Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Florida v. Royer, the United States Supreme Court announced that an involuntary detention, however brief, is not permissible even if the citizen acts in a way to avoid such contact:

The person approached [ ] need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.

Royer, 460 U.S. at 498, 103 S.Ct. at 1324. Without a legal justification for the stop of Hodges, Officer Nelson had no authority to place her under arrest or search the purse.

[¶ 31.] This case is another example of this Court’s seemingly willingness to disregard basic constitutional protections afforded by the Fourth Amendment. See e.g. State v. Rinehart, 2000 SD 135, 617 N.W.2d 842 (adoption of a “community caretaking function” exception to probable cause to justify the detention of a slow moving vehicle). “In the absence of any basis for suspecting [one] of misconduct, the balance between public interest and [one’s] right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). To do otherwise would allow the police to dictate one’s constitutional right to be left alone. As Justice Stevens wrote in his dissenting opinion in Maryland v. Wilson, “Today, however, the Court takes the unprecedented step of authorizing seizures that are unsupported by any individualized suspicion whatsoever.” 519 U.S. at 422, 117 S.Ct. at 890. I agree with Justice Stevens that “Fourth Amendment protections to our citizens cannot be sacrificed.” State v. Sleep, 1999 SD 19, ¶ 24, 590 N.W.2d 235, 242 (Sabers, Amundson, J.J., dissenting) (citing State v. Shearer, 1996 SD 52, ¶ 23, 548 N.W.2d 792, 797). As predicted, this Court again would rather continue on a path of eroding an individual’s'rights than protecting them. Just as in State v. Vento, the erosion continues.

[¶ 32.] Therefore, I dissent.

      . The trial court found that Officer Nelson was not acting for officer safety purposes when he detained Hodges. However, the authority cited by the State recognizes that control over passengers is necessary to prevent the escalation of uncontrollable situation that could jeopardize an officer's safety. See Wilson, 519 U.S. at 415, 117 S.Ct. at 882, 137 L.Ed.2d at 48. For officer safety, it is reasonable to require the passengers in a lawfully stopped vehicle to remain at the scene until the officer is able to assess the situation.

      . Hodges attempts to compare this stop with the stop of a person in a vehicle who chooses to turn away from a police roadblock without committing a violation of the law. See State v. Thill, 474 N.W.2d 86, 89 (Sabers, J. dissenting). These situations are distinguishable. Neither the driver nor passengers of a lawfully stopped vehicle would be justified to "ignore the police,” as Hodges asserts she was entitled to do. Without a lawful stop of a vehicle or person, all citizens may go where they wish unless there is reasonable suspicion for further investigation.

      . The Wilson court was specifically asked by Maryland to hold that "an officer may forcibly detain a passenger for the duration of the stop.” 519 U.S. at 415, n.3, 117 S.Ct. at 886, n. 3. The Court, however, decided to "express no opinion upon it,” as that issue was not directly before it. Id. For this Court to rely on Wilson as binding precedent or controlling is unpersuasive.


author: KONENKAMP, Justice.

text:
    2001 SD 95
    CITY OF MARION, Plaintiff and Appellant, v. Diane SCHOENWALD, Defendant and Appellee.
    No. 21587.
    Supreme Court of South Dakota.
    Argued April 25, 2001.
    Decided July 18, 2001.

      Jeffrey A. Cole of Zimmer, Duncan and Cole, Parker, SD, Attorneys for plaintiff and appellant.
    Ronald A. Parsons, Jr. of Johnson, Hei-depreim, Miner, Marlow & Janklow, Sioux Falls, SD, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] To keep excessive numbers of large dogs from becoming a public nuisance, the City of Marion passed an ordinance that, among other things, limited households to four dogs, only two of which could weigh over 25 pounds. When the ordinance was challenged in court, the weight restriction was struck down. We reverse that ruling. South Dakota law permits municipalities broad power to regulate the keeping of dogs, and thus the weight limitation included in the City’s comprehensive pet ordinance was within its authority.

A.

[¶ 2.] Marion city officials heard numerous complaints about dogs. The problems included constant barking, chained dogs challenging neighbors, and big dogs taking an attack attitude toward bypass-ers. The City attributed these problems to “large dogs” that have a greater potential to kill, injure, and intimidate. Dogs housed together, the City concluded, develop a “pack mentality” increasing their lethality. In addition, the City became concerned that excessive dog feces would create unsanitary conditions and foul odors. In 1999, the City successfully prosecuted a nuisance action against a resident who kept five Great Danes.

[¶ 3.] The City enacted Ordinance 232, effective January 5, 2000. In § 2, the ordinance “set an aggregate limit to the number of dogs that may be legally owned by one family, household, or cohabitants of any kind.” No home could have more than four dogs and four adult cats. Of the four dogs allowed, only two could weigh over 25 pounds.

[¶ 4.] Diane Schoenwald resides in Marion with her husband and their three children. The family owns three dogs: one shepherd-collie mix and two golden retrievers. The dogs were properly licensed and vaccinated in June 1999. At that time, the shepherd-collie weighed 75 pounds; the male golden retriever, 30 pounds; and the female golden retriever, 20 pounds. On February 23, 2000, Scho-enwald was notified that by housing three dogs weighing over 25 pounds she was in violation of the ordinance. The City ordered her to remove one dog. She received a second notice on March 10, giving her 72 hours to comply. She ignored the demand and was issued a citation.

[¶ 5.] Schoenwald pleaded not guilty in magistrate court and moved to dismiss. She contended that the ordinance exceeded the scope of municipal authority and was unconstitutional. After a hearing, a circuit judge sitting as a magistrate granted her dismissal motion. The court ruled that the weight restriction violated Scho-enwald’s substantive due process rights under Article VI, § 2 of the South Dakota Constitution and exceeded the City’s authority conferred by the Legislature. We granted the City’s request for discretionary review.

B.

[¶ 6.] Lacking inherent authority, cities derive their right to regulate from the Legislature. Welsh v. Centerville Township, 1999 SD 73, ¶ 10, 595 N.W.2d 622, 625; Donovan v. City of Deadwood, 538 N.W.2d 790, 792 (S.D.1995) (citations omitted). By statute, cities are empowered to “enact, make, amend, revise, or repeal” ordinances they deem necessary to effect their authority. SDCL 9-19-3. Ordinances must remain in “reasonably strict” adherence to their statutory ambit. Ericksen v. City of Sioux Falls, 70 S.D. 40, 53, 14 N.W.2d 89, 95 (1944). The exercise of a police power must not be unreasonable or arbitrary. See Lindquist v. Omaha Realty, Inc., 247 N.W.2d 684, 686 (S.D.1976)(discussing SDCL 9-29-l)(string citation omitted). Distinctions made by an ordinance must have a reasonable basis, and the means employed must be necessary to accomplish the asserted goal. South Dakota Dept. of Public Safety v. Haddenham, 339 N.W.2d 786, 790 (S.D.1983) (citations omitted); City of St. Paul v. Dalsin, 245 Minn. 325, 71 N.W.2d 855, 859 (1955).

[¶ 7.] South Dakota delegates a large measure of police power to municipal corporations, either expressly or inferentially. Streich v. Board of Ed. of Aberdeen, 34 S.D. 169, 147 N.W. 779, 781 (S.D.1914). Inferred powers are no less valid than those bestowed in express terms. Id. Local governments can best achieve the objects of their existence by the exercise of such powers. Id. Our Court has a history of not interfering with municipal governments unless their actions are palpably arbitrary, unreasonable, or beyond then-authority. Sanderson v. Mobridge, 317 N.W.2d 828, 829 (S.D.1982)(deferring to municipal decision to deny moving permit because of number of trees that would have to be removed and the extent of harm trimming would cause); Ericksen, 70 S.D. at 53, 14 N.W.2d at 95 (city may grant and revoke sewage licenses or permits as warranted and as public interest may require); Town of Colton v. South Dakota Cent. Land Co., 25 S.D. 309, 126 N.W. 507 (S.D.1910) (upholding ordinance prohibiting livestock pens within certain district).

C.

[¶ 8.] To decide if the Legislature authorized the City to regulate “the keeping of dogs” through a pet ordinance that includes a weight classification, we examine SDCL Chapter 9-29, and specifically 9-29-12, 9-29-13, and 9-29-1. Statutory interpretation presents a question of law, and thus we review the trial court’s decision without deference. Faircloth v. Raven Industries, 2000 SD 158, ¶ 4, 620 N.W.2d 198, 200 (citations omitted); Welsh, 1999 SD 73, ¶ 7, 595 N.W.2d at 624 (citations omitted). We inspect individual statutory sections along with enactments relating to the same subject. State v. Lorenz, 2001 SD 17, ¶ 12, 622 N.W.2d 243, 246 (citations omitted). Municipal ordinances are presumed valid, and those challenging them bear a heavy burden in proving that they are unreasonable and arbitrary. Fortier v. City of Spearfish, 433 N.W.2d 228, 231 (S.D.1988) (citations omitted). We also presume that cities are familiar with their local conditions and know their own needs; therefore, we will not substitute our judgment for their decisions, unless they abuse their power. Tillo v. City of Sioux Falls, 82 S.D. 411, 415, 147 N.W.2d 128, 130 (1966).

[¶ 9.] An ordinance regulating pet weight as well as pet numbers has no linkage to an explicit legislative endorsement. Indeed, the only specific enabling statute deals with prohibiting, regulating, and licensing “dogs running at large.” See SDCL 9-29-12. Yet this statute is no bar to other enactments for canine control: cities possess the statutory right to “regulate the keeping of dogs.” Rapid City v. Tuning, 82 S.D. 442, 443, 147 N.W.2d 604, 605 (1967) (citations, omitted). A broader power to regulate in this area stems from municipal authority to maintain the health, safety, and general welfare of the community and the right to abate nuisances. SDCL 9-29-1; 9-29-13. These enactments denote a legislative intent to leave subjects like pet control to local government, as the more manageable societal unit for such regulation. Certainly, there are no contravening statewide laws on point. Read together, SDCL 9-29-12, 9-29-13, and 9-29-1 accord municipalities open. authority in controlling pet ownership, so long as the regulations reasonably correlate with the protection of the health, safety, and welfare of local residents. SDCL 9-29-12 (prevent dogs from run: ning at large); SDCL 9-29-13 (declare, prevent, abate, and remove nuisances); SDCL 9-29-1 (authority to exercise jurisdiction to promote welfare of the community).

[¶ 10.] In almost all jurisdictions, municipal power to regulate animals kept as pets is broadly construed. See 7 McQuil-lin, Municipal Corporations, § 24.284 at 203 (3rd ed 1998)(footnoted information omitted). Restrictions on the aggregate number of dogs in households are commonly upheld against constitutional attacks. See Holt v. Sauk Rapids, 559 N.W.2d 444, 445-46 (Minn.Ct.App.1997). See also Gates v. City of Sanford, 566 So.2d 47, 49 (Fla.Dist.Ct.App.1990)(three dogs and three cats); Village of Carpentersville v. Fiala, 98 Ill.App.3d 1005, 54 Ill.Dec. 521, 425 N.E.2d 33, 35 (1981), cert. denied, 456 U.S. 990, 102 S.Ct. 2271, 73 L.Ed.2d 1285 (two dog limit in single family residence). Regulation of specific breeds is also considered a proper exercise of police power. Singer v. City of Cincinnati, 57 Ohio App.3d 1, 566 N.E.2d 190, 192 (1990)(banning pit bulls); Garcia v. Village of Tijeras, 108 N.M. 116, 767 P.2d 355, 360 (N.M.Ct.App.1988)(pit bulls). See also McQuillian, supra at 202.

[¶ 11.] On the other hand, the City cites no instance where a similar weight restriction for dogs was upheld. Nor does it refer to any animal science authority or veterinary directive to support a weight threshold for household pets. Empirical evidence, of course, is not required to sustain an ordinance. Sehoen-wald, who carries the burden, offers no empirical data either. But to some degree, the weight limit creates an unproven distinction between large and small dogs. The restriction carries certain troublesome exactions. Weight is a mutable attribute. For some pets, compliance with the ordinance may fluctuate, depending on health, diet, and age.

[¶ 12.] Then again, by isolating a single sentence in an ordinance to test its reasonableness, we ignore a basic rule of construction: the obligation to read enactments as a whole. Faircloth, 2000 SD 158, ¶ 6, 620 N.W.2d at 201 (citations omitted). A court should be cautious in dissecting piecemeal a comprehensive law. Molded in concession and compromise to reconcile opposing interests, an enactment might lose its objective and become something never intended by its drafters if parts were severed. The City believes that because it allows four dogs per household, only two of which are restricted in size, that the severity of the weight limit is ameliorated. The ordinance is an attempt to balance competing needs, public and private. If the City had simply limited households to two large dogs and two small ones, the ordinance would lack the requirement of definiteness. Distinctions between large and small would be indeterminable. Marion’s limit on the number of dogs assuredly advances public welfare. See Holt, 559 N.W.2d at 446 (citing cases). A maximum of four dogs per household is scarcely over restrictive. As we have said, numerous courts have upheld stricter limits. Too many dogs in one place can produce noise, odor, and other adverse conditions. Downing v. Cook, 69 Ohio St.2d 149, 431 N.E.2d 995, 997 (1982). If the city can lawfully restrict the number of pets per home, then it seems hardly a stretch to say that it can also limit the size of those pets — at least some of them.

[¶ 13.] On the whole, the City meets a legitimate public safety objective with its comprehensive pet ordinance. We have seen the tragic consequences of unregulated or mismanaged pets. See e.g. Tipton v. Town of Tabor, 1997 SD 96, 567 N.W.2d 351. Larger dogs have greater potential for harm. And the physical danger animals pose is not the only consideration. Public welfare includes maintaining a certain quality of life in a community. Unsanitary conditions, incessant barking, obnoxious animal behavior of various sorts, all can seriously disturb the peace and constitute a nuisance. The advantages of clean and quiet neighborhoods are surely creditable goals for local government. From our extensive research on similar decisions throughout the country, we think it significant that with growing urbanization over the past fifty years, courts have become increasingly deferential to local authorities in upholding diverse pet control measures.

[¶ 14.] We conclude that the. weight limit in Ordinance 232 § 2 read together with the freedom to possess four dogs, two of which can be any size, is sufficiently related to the purpose of protecting public health .and safety; thus, it did not unreasonably exceed the City’s regulatory authority. Furthermore, because there is a rational relationship between the ordinance and the problems caused by large dogs, we find no violation of the South Dakota Constitution. Cheyenne River Sioux Tribe Tel. Auth. v. Pub. Utilities Comm’n, 1999 SD 60, ¶ 44, 595 N.W.2d 604.

[¶ 15.] Reversed.

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

      . Ordinance 232 § 2 provides:
      Limit in number of dogs and cats-It shall be unlawful for any person or persons, or household, in the limits of the City of Marion to own or possess more than four dogs and four adult cats. Of the four dogs that can he owned or possessed, only two of the dogs can weigh more than twenty-five pounds. It is the intent of this Ordinance to set an aggregate limit to the number of dogs that may be legally owned by one family, household, or co-habitants of any kind. This Ordinance does not apply to litters of dog puppies or kittens from the time of their birth until they are eight weeks old.

      . It is not clear from the record how the City determined that Schoenwald's third dog had subsequently exceeded the weight limitation.

      . SDCL 9-29-12. Animals Running at Large — Pounds—Dog licenses. Every municipality shall have the power to regulate or prohibit the running at large of dogs, animals, and poultry, to establish pounds, appoint poundmasters, and regulate the impounding of animals, and to impose a tax or license on dogs running at large.
      SDCL 9-29-13. Abatement of Nuisances. Every municipality shall have power to declare whaL shall constitute a nuisance and prevent, abate, and remove the same.
      SDCL 9-29-1. Territorial Jurisdiction of Municipalities. Every municipality shall have power to exercise jurisdiction for all authorized purposes over all territory within the corporate limits and over any public ground or park belonging to the municipality, whether within or without the corporate limits ... for the purpose of promoting the health, safety, morals, and general welfare of the community, and enforcing its ordinances and resolutions relating thereto.

      . Contra Commonwealth v. Creighton, 163 Pa.Cmwlth. 68, 639 A.2d 1296 (1994)(refusing to validate ordinance limiting aggregate number of animals per household and remanding for more specific findings on the goals of the ordinance and whether the means were reasonable).


author: LAVORATO, Chief Justice.

text:
    HEARTLAND EXPRESS, INC., Petitioner-Appellant, v. George T. TERRY, Respondent-Appellee. George T. Terry, Petitioner-Appellant, v. Heartland Express, Inc., Respondent-Appellee.
    No. 99-1477.
    Supreme Court of Iowa.
    July 5, 2001.

      Joseph M. Barron and Stephen W. Spencer of Peddicord, Wharton, Thune & Spencer, Des Moines, for Heartland Express, Inc.
    Paul J. McAndrew, Iowa City, for George T. Terry.
   LAVORATO, Chief Justice.

The decisive issue in this workers’ compensation proceeding is whether the Industrial Commissioner had subject matter jurisdiction over the claimant’s claim for workers’ compensation benefits and his claim for alternate medical care. Because we conclude such jurisdiction was lacking, we affirm a district court ruling reversing the commissioner’s award of benefits. We vacate another district court ruling affirming the commissioner’s award of alternate medical care.

I. Facts.

On February 2, 1994, George T. Terry, a Georgia resident, saw a newspaper advertisement in the Atlanta Journal-Constitution for employment as a truck driver with Heartland Express, Inc., an Iowa company headquartered in Coralville, Iowa. In responding to the advertisement, Terry called the Heartland terminal in Forest Park, Georgia. Later, Terry filled out an application at this terminal and turned it into an employee at the terminal, who told Terry that he would forward the application to Coralville for approval. As instructed, Terry called this employee two days later and was told he was hired.

As a truck driver for Heartland, Terry covered a number of states, including Iowa. He picked up and dropped loads in Iowa three to four times per month. Some months, Terry did not come into Iowa at all. Terry took dispatch orders out of Coralville three to seven times per week, sent completed logs to Iowa, and received his pay from Iowa.

On October 4, 1995, Terry was driving for Heartland in Louisiana. When he tried to lock the double doors of his semitrailer in hurricane winds, the right door came loose, striking him in the forehead. The blow knocked him unconscious. Later, with some difficulty stemming from dizziness and nausea, Terry drove to Memphis, Tennessee. On October 6, he returned to Atlanta, Georgia, where he saw a doctor on October 11. The doctor determined that Terry had suffered a brain injury.

Within days of the injury, Heartland filed an Iowa First Report of Injury. In December 1995, Heartland filed an Iowa First Supplemental Claim Activity Report and began paying weekly benefits.

II. Proceedings.

On August 2, 1996, Terry filed an original notice and petition before the Iowa Industrial Commissioner. A deputy workers’ compensation commissioner held a hearing on May 28, 1998, by which time Heartland had paid over 138 weeks of benefits. Heartland contended there was a lack of subject matter jurisdiction.

On June 15, the deputy issued an arbitration decision. The deputy ruled that (1) amendments to Iowa Code section 85.71 (1995) found in 1997 Iowa Acts, chapter 106, section 1, did not apply retroactively and (2) the commissioner had subject matter jurisdiction over Terry’s claim pursuant to Iowa Code section 85.71 (1995).

Additionally, the deputy found that Terry had suffered permanent partial disability and ordered that Heartland pay Terry healing period benefits for 96.57 weeks at the rate of $331.54 per week for the period from October 5, 1995 through August 12, 1997. The deputy also ordered Heartland to pay Terry permanent partial disability benefits for 325 weeks at the rate of $331.54 per week beginning August 13, 1997. The deputy allowed Heartland a credit against the award for weekly benefits that Heartland had already paid.

Heartland appealed the decision to the Iowa Industrial Commissioner.

Throughout all of this time, Heartland had been providing Terry’s neurological care and treatment in his hometown of Athens, Georgia, through Dr. Antonio Da-Cunha, a neurologist in Athens. In October 1998, Terry moved to Senoia, Georgia, which is approximately 120 miles from Dr. DaCunha’s office. Before the move, Dr. DaCunha recommended that Terry continue his care with Dr. Kenneth Lazarus. Dr. Lazarus’ office is approximately ten miles from Terry’s home' in. Senoia. Heartland refused to authorize treatment by Dr. Lazarus, insisting that Terry continue his treatment with Dr. DaCunha.

This refusal prompted Terry to file an application for alternate medical care on April 21, 1999. In the application, Terry requested that he be permitted to continue his neurological treatment with Dr. Lazarus. Terry also requested that Heartland pay for Viagra prescriptions ordered by Dr. DaCunha.

On April 22, Heartland filed a resistance to the application. Heartland also offered to continue Terry’s treatment with Dr. Richard Bernstein of Atlanta, Georgia. Dr. Bernstein’s office is approximately sixty miles from Terry’s home in Senoia.

Following a hearing on the application, a deputy workers’ compensation commissioner ordered, on May 3, that Heartland “provide reasonable and necessary medical care in the person of Dr. Lazarus.” The deputy found that this was necessary to treat Terry’s injury “ ‘without undue inconvenience to the employee’ because of distance combined with the nature of Terry’s malady.” See Iowa Code § 85.27. The deputy also ordered that Heartland “furnish reasonable and necessary medications prescribed for treatment of Terry’s condition, including the drug Viagra.”

Finally, the deputy refused to rule on Heartland’s contention that the commissioner lacked subject matter jurisdiction over the application for alternate medical care. The deputy noted that the issue had already been resolved in the earlier arbitration decision that was then on appeal to the commissioner. The deputy refused to rule, explaining that “no deputy workers’ compensation commissioner has authority to overrule any other deputy.” Because of a prior “order of delegation of authority” issued by the commissioner, the alternate medical care decision was deemed the final agency action.

On June 2, Heartland filed a petition for judicial review in the district court. Heartland challenged the deputy commissioner’s award of medical care from Dr. Lazarus and medications, including the drug Viagra. Heartland also alleged that the deputy commissioner erred in finding the commissioner had subject matter jurisdiction of the dispute.

On June 17, Terry filed a “motion for judgment” requesting the alternate medical care decision be affirmed. Heartland resisted the motion and asked that the court remand the matter to the commissioner for review of the subject matter jurisdiction issue. Heartland requested in the alternative that the district court stay the matter pending the commissioner’s determination of the arbitration appeal. Additionally, Heartland argued that under either Iowa Code section 85.71 or amended section 85.71, the agency lacked subject matter jurisdiction over the claim.

On September 7, district judge Jack D. Levin denied Heartland’s request for stay or remand. Additionally, the court sustained Terry’s motion for judgment and affirmed the deputy commissioner’s decision regarding alternate medical care. Heartland appealed from this ruling.

Meanwhile, on November 30, the chief deputy workers’ compensation commissioner issued a ruling, affirming all aspects of the deputy commissioner’s arbitration decision without separate analysis, except for the question of subject matter jurisdiction.

In a separate analysis on the subject matter jurisdiction issue, the chief deputy commissioner first determined that the 1997 amendments to Iowa Code section 85.71 apply prospectively — not retrospectively. For this reason, the chief deputy commissioner concluded that those amendments did not apply to this claim because the injury occurred before the amendments were enacted.

The chief deputy commissioner next determined that under section 85.71, the commissioner had subject matter jurisdiction over Terry’s claim. In reaching that determination, the chief deputy commissioner found that at the time of the injury Terry was working under a contract of hire made in Iowa and his employment was not principally localized in Georgia or any other state, per the requirements of Iowa Code section 85.71.

Finally, the chief deputy commissioner concluded that even if the 1997 amendments were applicable, the commissioner still had subject matter jurisdiction because, before his injury, Terry spent a substantial part of his working time working for Heartland in Iowa.

On December 29, Heartland petitioned for judicial review in the district court. Among other things, Heartland alleged that the chief deputy commissioner erred in finding the agency had subject matter jurisdiction over Terry’s claim.

On May 18, 2000, district judge Glenn E. Pille issued a ruling reversing the decision of the chief deputy commissioner. The court first determined that Iowa Code section 85.71 and the 1997 amendments were “more substantive than procedural,” and on this basis concluded that the amendments should apply prospectively only.

However, the court then determined that the commissioner lacked subject matter jurisdiction over Terry’s claim under the preamendment version of Iowa Code section 85.71(2) because “the contract for hire did not take place in Iowa.” In light of this finding, the court concluded that it was unnecessary to reach the issue of whether Terry’s employment was principally localized in any state.

Terry appealed from this ruling. Later, we consolidated the two appeals.

III. Issues.

The pivotal issue on appeal is whether the commissioner had subject matter jurisdiction over Terry’s arbitration and alternate medical care claims. This issue raises two questions. First, are the 1997 amendments to Iowa Code section 85.71 applicable to Terry’s claim? Second, under either the amended or original version of Iowa Code section 85.71, did the district court err in concluding the commissioner lacked subject matter jurisdiction to consider Terry’s claim for benefits?

If we find there was subject matter jurisdiction, Heartland argues — on the merits — that the district court erred in affirming the alternate care decision.

For reasons that follow, we conclude that under either version of section 85.71, the commissioner lacked subject matter jurisdiction. The conclusion we reach means we need not decide whether the 1997 amendments to section 85.71 should operate prospectively or retrospectively. In addition, we need not address the merits of the alternate medical care decision because that decision is void for lack of subject matter jurisdiction.

IV. Scope of Review.

Iowa Code chapter 17A governs review of this workers’ compensation decision. See Iowa Code § 86.26 (1999). The district court, exercising its power of judicial review under Iowa Code section 17A.19(8), acts in an appellate capacity to correct errors of law on the part of the agency. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 627 (Iowa 2000). The court may affirm the agency action or remand to the agency for further proceedings. Iowa Code § 17A.19(8). The court shall reverse, modify, or grant any other appropriate relief from the agency action if substantial rights of the petitioner have been prejudiced because of such action. Id.

In reviewing the district court’s decision, this court applies the standards of section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court. Al-Gharib, 604 N.W.2d at 627. If our conclusions are the same as those of the district court, we affirm. Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 14 (Iowa 1993). Otherwise, we reverse. Id.

Iowa Code section 17A.19(8)(f) provides that, in a contested case, the court shall only grant relief from an agency decision that is unsupported by substantial evidence in the record made before the agency when the record is viewed as a whole. “Evidence is substantial when a reasonable mind could accept it as adequate to reach the same finding.” Bearce v. FMC, Corp., 465 N.W.2d 531, 534 (Iowa 1991).

V. Subject Matter Jurisdiction.

A. Background. Iowa Code section 85.71 is a subject matter jurisdiction statute. See Henriksen v. Younglove Constr., 540 N.W.2d 254, 256, 261 (Iowa 1995); see also Christian v. Hirschbach Motor Lines, Inc., 496 N.W.2d 270, 273 (Iowa Ct.App.1992). The statute governs the industrialcommissioner’s subject matter jurisdiction over workers’ compensation claims based on injuries sustained outside the state. See Henriksen, 540 N.W.2d at 256; Christian, 496 N.W.2d at 273. Consequently, parties cannot confer such jurisdiction on the commissioner by waiver or consent. See Bair v. Blue Ribbon, Inc., 256 Iowa 660, 665-66, 129 N.W.2d 85, 88 (1964); see also Springville Community Sch. Dist. v. Iowa Dep’t of Pub. Instruction, 252 Iowa 907, 914, 109 N.W.2d 213, 217 (1961) (holding that a public agency has adjudicatory jurisdiction only as is conferred upon it by statute).

B. Iowa Code section 85.71 — the old and new version — and the respective rulings of the chief deputy commissioner and the district court. On July 1, 1997, amendments to Iowa Code section 85.71 went into effect. See 1997 Iowa Acts ch. 106, § 1; see also Iowa Code § 3.7(1) (declaring effective date of legislation).

Following these amendments, section 85.71 read:

If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee, or in the event of death, the employee’s dependents, would have been entitled to the benefits provided by this chapter had such injury occurred within this state, such employee, or in the event of death resulting from such injury, the employee’s dependents, shall be entitled to the benefits provided by this chapter, if at the time of such injury any of the following is applicable:
1. The employment is principally localized in this state, that is, the employee’s employer has a place of business in this or some other state and the employee regularly works in this state, or if the employee’s employer has aplace of business in this state and the employee is domiciled in this state.
2. The employee is working under a contract of hire made in this state in employment not principally localized in any state and the employee spends a substantial part of the employee’s working time working for the employer in this state.
3. The employee is working under a contract of hire made in this state in employment principally localized in another state, whose workers’ compensation law is not applicable to the employee’s employer.
4. The employee is working under a contract of hire made in this state for employment outside the United States.

1997 Iowa Acts ch. 106, § l(codified at Iowa Code § 85.71 (Supp.1997)) (emphasis added). The italicized language reflects the significant amendments.

As mentioned, the chief deputy commissioner first determined that the amendments applied prospectively and not retrospectively. For this reason, the chief deputy concluded that the amendments did not apply to Terry’s claim because his injury occurred before the amendments were enacted.

The chief deputy next concluded that the commissioner had subject matter jurisdiction over Terry’s claim. Applying subsection 2 of the old version of section 85.71, the chief deputy found that at the time of Terry’s injury, Terry was working under a contract of hire made in Iowa and that his employment was not principally localized in Georgia or any other state. The chief deputy also concluded that even under the new version of section 85.71, the commissioner still had subject matter jurisdiction because, before his injury, Terry spent a substantial part of his working time working for Heartland in Iowa.

The district court likewise concluded the amendments applied prospectively only. However, the court concluded the commissioner lacked subject matter jurisdiction over Terry’s claim under subsection 2 of the old version of Iowa Code section 85.71 because the contract for hire did not take place in Iowa. In light of its conclusion, the court determined it was unnecessary to reach the issue of whether Terry’s employment was principally localized in any state.

The issue therefore narrows down to whether there was substantial evidence to support the chief deputy’s finding that the contract of hire took place in Iowa. See Anstey v. Iowa State Commerce Comm’n, 292 N.W.2d 380, 384 (Iowa 1980) (holding that substantial evidence test governs review of agency action regarding jurisdictional facts). Because the contract-of-hire requirement is found in subsection 2 of both versions of section 85.71, we need not determine whether the amendments apply prospectively only.

C. Analysis. This court has held that

[generally speaking, the place of making a contract is determined according to the parties’ intention. As a rule this is considered to be the place where the offer is accepted, or where the last act necessary to a meeting of the minds, or to complete the making of the contract, is performed.... [T]he place of contract is the place where the acceptance is made, as, if a resident of one state places a letter in the mail making an offer to one who resides in another state, the contract would be completed where the acceptance is mailed. Such is the general rule.

Burch Mfg. Co. v. McKee, 231 Iowa 730, 735-36, 2 N.W.2d 98, 101 (1942) (citations omitted).

These rules apply when considering jurisdictional matters under Iowa Code section 85.71. See George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495, 500 (Iowa 1983) (“Generally, the place a contract is formed is where the meeting of minds occurs, or where the final act necessary to form a binding contract takes place.”), overruled on other grounds by Henriksen, 540 N.W.2d at 258.

Applying these rules, the district court reasoned:

[Heartland] argues that the final act necessary took place in Georgia when Heartland’s representative offered Terry the job and Terry accepted. [Terry] contends that the actual offer took place when [he] submitted his application, and the acceptance of his offer took place in Iowa when Heartland decided to hire him. While [Terry’s] argument is creative, it is not persuasive. Even if the court accepted [Terry’s] argument as true, Heartland would need to communicate to Terry that it had accepted his offer, and until that communication occurred, there was no meeting of the minds. In any event, the offer for employment took place when Heartland’s representative in Georgia offered Terry the job as truck driver and Terry accepted. The Commissioner’s decision to the contrary is not supported by substantial evidence. He determined that the contract was formed in Iowa because Terry testified that his application would have to be forwarded to Iowa for investigation and processing, and that evidence was not challenged by Heartland. Even if true, the test for when a contract is formed is not where investigation and processing takes place; it is where the meeting of the minds occurs. This was clearly Georgia when Terry accepted Heartland’s offer of employment.

As the following discussion shows, the district court was right on the mark.

On February 2, 1994, Terry completed an “Application for Qualification” in Forest Park, Georgia, where Heartland maintained a trucking “terminal.” Terry had read a Heartland ad in the classified section of an Atlanta, Georgia newspaper. The ad indicated Heartland was hiring truck drivers and gave a phone number to call at the Forest Park, Georgia terminal. Terry called the number and asked the individual who answered if he could come down and fill out an application. The individual said “yes” and told Terry to come down.

When asked to describe what happened when he filled out the application, Terry testified:

A. I filled — I filled out this application here and gave it back to the person that had given it to me, and he told me that he would have to forward this on to Coralville [, Iowa] for approval, and then — for me to get back with him in a day or two, which would have made it on a Friday.
Q. Did he explain to you what he meant by getting approval from Coral-ville? A. Other than that they would have to okay whether he would hire me or not.

Terry also testified that during the hiring process he never came to Iowa. He also testified that he never spoke by telephone with anybody in Iowa. He further testified that during the hiring process all of his discussions with Heartland pei'son-nel occurred in Georgia.

On February 4, 1994, Terry contacted the Forest Park terminal to inquire about the status of his application. Terry testified as follows about that conversation:

Q. Okay. And when you called, they told you that you were hired, I assume? A. That — that—yes, and to be at the orientation, which started Monday morning.
Q. Well, when you called them that day, did they tell you you were hired? A. I took for granted that I was when he asked me to come to the orientation.
Q. Okay. So at least when you got done with the conversation, you thought you’d been hired by Heartland Express; right? A. Correct.

Heartland contends that the offer of employment was not made until the conversation between Terry and the Heartland employee on February 4 and that Terry accepted that offer during their conversation. Terry asserts that Heartland made the acceptance in Iowa when it “approved” his application.

Both parties focus on where the terms of the contract were accepted. They spend little time discussing when the offer of employment was actually made. Under Terry’s theory that Heartland accepted an offer of employment, he must show that there was an offer that Heartland could accept. For Terry’s argument to hold true, it must necessarily follow that the application was such an offer.

1. Offer. “All contracts must contain mutual assent; mode of assent is termed offer and acceptance.” Anderson v. Douglas & Lomason Co., 540 N.W.2d 277, 285 (Iowa 1995). An offer is a “ ‘manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.’ ” Id. (quoting Restatement (Second) of Contracts § 24 (1979)). We determine whether an offer has been made objectively — not subjectively. Id. “ ‘The test for an offer is whether it induces a reasonable belief in the recipient that [the recipient] can, by accepting, bind the sender.’ ” Id. at 286 (quoting Architectural Metal Sys., Inc. v. Consol. Sys., Inc., 58 F.3d 1227, 1229 (7th Cir.1995)).

In applying this objective test of intent, “we look for terms with precise meaning that provide certainty of performance.” Id. “[I]f an offer is indefinite, there is no intent to be bound.” Id. Here, we must determine whether the terms of Terry’s application were “sufficiently definite” so as to constitute an offer. See Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 203 (Iowa 1997). Such a determination is a question of law. See id.

Terry’s application contains no provisions or terms of employment whatsoever. The application does not contain a promise by Terry to do something or a request that Heartland do something in exchange. We noted in Anderson that

“a lack of essential detail would negate such a belief [of intent], since the sender could not reasonably be expected to empower the recipient to bind him to a contract of unknown terms.... [T]he recipient of a hopelessly vague offer should know that it was not intended to be an offer that could be made legally enforceable by being accepted.”

540 N.W.2d at 286 (quoting Architectural Metal Sys., 58 F.3d at 1229).

Even a simple statement of Terry’s primary duty coupled with Heartland’s obligation to pay him might have sufficed. See Magnusson Agency v. Pub. Entity Nat’l Company-Midwest, 560 N.W.2d 20, 26 (Iowa 1997) (holding that terms of offer were sufficiently definite where it was stated that plaintiff would service an insurance account for a three-year period, and defendant would pay him a commission for his services; court noted that it was not significant that plaintiff did not discuss the specific amount of his commission in the offer). However, without these essential provisions, we cannot consider Terry’s application as an offer of employment. See id.; see also 1 Arthur L. Corbin, Corbin on Contracts § 1.11, at 31 (Joseph M. Perillo rev. ed.1993) [hereinafter Corbin on Contracts ] (noting that offer must contain all the terms of the contract to be made, including a promise to do something and what the other party must do in exchange); 1 Samuel Williston, Williston on Contracts § 4:7, at 296 (Richard A. Lord 4th ed.1990) (noting that whether an offer exists depends in part on “whether the facts show that some performance was promised in positive terms in return for something requested by the person making the promise”).

Additionally, other aspects of the application make clear that it was not intended as an offer. The application is entitled “Application for Qualification” and begins with the following statement:

The purpose of this application is to determine whether or not the applicant is qualified to operate Motor Carrier equipment according to the requirements of the Federal Motor Carrier Safety Regulations and the Company named above.

More important, in the following statement, the application disclaims any notion that it is intended to constitute an offer: “It is agreed and understood that thiis^ application for qualification in no way obligates the motor carrier to employ the applicant.”

Obviously, the application was only meant to determine whether Terry would meet Heartland’s employment requirements. The record shows that Terry understood this:

Q. Okay. Does it say right there on the front page of the application that this application is being filled out for them, Heartland, to check if you would meet the requirements of the company named above, and that company is Heartland Express, Inc., of Iowa in Cor-alville, Iowa? A. Yes.
Q. Did you see that when you filled out the application? A. Yes, sir, I knew that.

We conclude that the application as a matter of law was not “sufficiently definite” to constitute an offer of employment that Terry work for Heartland. At most, it was nothing more than a solicitation or invitation of an offer by Terry to Heartland that he work for Heartland. See Harden v. Maybelline Sales Corp., 230 Cal.App.3d 1560, 1555, 282 Cal.Rptr. 96, 99 (1991) (“[A]n application for employment is not a contract; it is a mere solicitation of an offer of employment.”); see generally Corbin on Contracts § 2.3, at 111 (“Request for an offer is not an offer .”).

Because the application was not' an offer of employment, there was not, nor could there have been, a contract for hire made when Heartland “approved” Terry’s application. Based on this record, the earliest evidence of an offer of employment occurred during the phone conversation Terry had with a Heartland employee on February 4 in Georgia. That offer came from Heartland. The record further suggests that Terry accepted the offer. As mentioned, Terry testified:

Q. Okay. So at least when you got done with the conversation, you thought you’d been hired by Heartland Express; right? A. Correct.

Because Georgia was the place where Terry accepted Heartland’s offer of employment, Georgia was the place where the contract of hire was made. See Burch, 233 Iowa at 735-36, 2 N.W.2d at 101;99 C.J.S. Workers’ Compensation § 72, at 144-45 (2000) (“Where the worker’s acceptance of an offer of employment is given by telephone, the place of contracting is where the acceptor speaks his or her acceptance see also Restatement (Second) of Contracts § 64. cmt. c (“To the extent the issue [of where an acceptance takes effect] is referred to the rule governing private contract disputes, the analogy of acceptance by mail or telegram is controlling in cases of contract made by parties in each other’s presence and also in cases of contracts made by telephone or teletype: the contract is created at the place where the acceptor speaks or otherwise completes his manifestation of assent.”). For this reason, subject matter jurisdiction of Terry’s claims was lacking under section 85.71(2). The district court was correct in so concluding.

2. Construing the application as an offer. Even assuming the application was an offer, there still remains the question of where the offer was actually accepted. As mentioned, Terry contends the offer was accepted in Iowa because that is where his application was approved. Heartland contends that (1) there is no evidence the application was approved in Iowa; (2) mere approval of the offer did not amount to an acceptance of that offer; and (3) the actual acceptance occurred in Georgia during the phone conversation on February 4 when Heartland’s employee communicated the acceptance to Terry.

A binding contract requires an acceptance of an offer. Magnusson, 560 N.W.2d at 26. An “[acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.” Restatement (Second) of Contracts § 50.

We first consider whether substantial evidence supports a finding that the offer was accepted in Iowa. As Heartland correctly notes, there is a lack of evidence establishing that Heartland approved the application in Iowa. Although Terry testified that he was told the application would be sent to Iowa for approval, there was no evidence indicating that Heartland actually processed and approved the application in Iowa.

Even assuming that Heartland approved the application in Iowa, such an assumption does not mean that the offer was accepted there for purposes of contract law. As Burch makes clear, the place of making a contract is determined according to the parties’ intentions and generally this is considered to be where the offer is accepted. 231 Iowa at 735-36, 2 N.W.2d at 101.

Terry argues that once Heartland accepted the offer in Iowa, that was enough to make a binding contract. This is not so. Assuming that in approving the application, Heartland could be said to have accepted Terry’s offer, such acceptance must still be communicated or delivered to Terry. See Hayne v. Cook, 252 Iowa 1012, 1020-1022, 109 N.W.2d 188, 191-92 (1961) (holding that for an acceptance of an offer to be effective it must be delivered or communicated to the offeror).

As Heartland argues, mere acceptance of an offer does not necessarily make a binding contract. “[A] mere private un-communicated assent will not effect a contract.” 17A Am.Jur.2d Contracts § 71, at 95 (1991).

Heartland also contends that acceptance could not result from mere silence on its part. This is true. See Ducommun v. Johnson, 252 Iowa 1192, 1197, 110 N.W.2d 271, 274 (1961) (holding that silence and inaction do not amount to an acceptance of an offer and mere silence or failure to reject an offer does not constitute an acceptance).

Terry responds that this rule is only a general rule and that in any event this case does not involve assent by silence because there was a communication. As Terry implies, there are exceptions to the rule that silence and inaction do not amount to an acceptance of an offer. None of those exceptions, however, apply here. See Restatement (Second) of Contracts § 69 (noting three exceptions where silence and inaction operate as acceptance, none of which apply here).

Terry’s position is that Heartland communicated its acceptance when it contacted the Forest Park terminal. Assuming that Heartland in Coralville accepted the offer and communicated this acceptance to its Forest Park employee, this fact is not enough to establish a binding contract. The rule is that where an offer-ee conveys an acceptance to its agent, there is no actual acceptance until the agent delivers that acceptance to the offer- or. See Darling v. Nineteen-Eighty Corp., 176 N.W.2d 765, 768 (Iowa 1970) (“If the agent was agent for the offeree only, the act of mailing the papers to him would not constitute an acceptance and could be recalled at any time until actual delivery to the offeror.”). The mere fact that Heartland in Coralville may have communicated its acceptance to its Forest Park terminal does not satisfy the requirement of delivery or communication of acceptance to Terry. Acceptance on the part of Heatland was not made until it was communicated by its Forest Park representative to Terry during their phone conversation which occurred in Georgia. We conclude there was not substantial evidence to support the chief deputy commissioner’s finding that acceptance occurred in Iowa. For this reason, the chief deputy commissioner erred in concluding the contract of hire occurred in Iowa.

VI. Disposition.

Because the chief deputy workers’ compensation commissioner erred in concluding the contract of hire occurred in Iowa, we conclude the commissioner lacked subject matter jurisdiction of Terry’s original claim for benefits. The district court did not err in so concluding. We therefore affirm that decision. However, because subject matter jurisdiction was lacking, the district court erred in affirming the award of alternate medical care. That decision is vacated.

AFFIRMED IN PART AND VACATED IN PART.