author: GILBERTSON, Chief Justice. ZINTER, Justice SABERS, Justice

text:
    2004 SD 100
    Kelly KIRBY, Renee Kirby, Kenneth Kirby, Renea Kirby, Francis Kirby, Theresa Kirby, James R. Brown, John Lake, James A. Lake and Gettysburg School District No. 53-1, Appellants, v. HOVEN SCHOOL DISTRICT NO. 53-2, Appellee.
    No. 23105.
    Supreme Court of South Dakota.
    Considered on Briefs June 1, 2004.
    Decided Sept. 1, 2004.

      Craig E. Smith of Neumayr and Smith, Gettysburg, SD, for appellants.
    David A. Von Wald, Hoven, SD, for ap-pellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Kelly Kirby, Renee Kirby, Kenneth Kirby, Renea Kirby, Francis Kirby, Theresa Kirby, James R. Brown, John Lake, James A. Lake (collectively, Petitioners) and the Gettysburg School District appeal the denial of their petition for a minor school district boundary change by the Hoven School Board (Board). We affirm.

FACTS AND PROCEDURE

[¶ 2.] Petitioners filed for a minor boundary change in order to transfer their property from the Hoven School District to the Gettysburg School District. Kelly and Renee Kirby live on a farm in the Hoven School District and have three minor children: Brook, age nine, Carson, age six, and Colton, age three. The school-age children currently attend school in Gettysburg due to open enrollment, and they represent the only children residing on land included in the petition.

[¶ 3.] Kenneth and Renea Kirby are Kelly Kirby’s parents. Francis and Theresa Kirby are Kelly Kirby’s aunt and uncle. All of these members of the Kirby family reside on land included in the petition. James R. Brown, John Lake, and James A. Lake are the remaining property owners included in the petition, although they have never resided on any of the land covered by the petition.

[¶ 4.] The Gettysburg School District approved the petition. On, November 2, 2002, however, the Board denied Petitioner’s minor boundary change petition, furnishing them with written reasons for the denial. Petitioners then appealed the Board’s decision to the circuit court as authorized by SDCL 13-6-85. After proceedings before the court including testimony and presentation of evidence by both Petitioners and the Board, the circuit court entered findings of fact and conclusions of law affirming the Board’s denial of the petition for minor boundary change. Petitioners now appeal raising as the sole issue for our review:

Whether the Board’s decision to deny the minor boundary change petition was arbitrary, capricious, or unreasonable.

Affirmed.

STANDARD OF REVIEW

[¶ 5.] We employ the arbitrary, capricious, or unreasonable standard of review on appeals concerning school district boundary disputes. Johnson v. Lennox School Dist. No. 41-4, 2002 SD 89, ¶ 8, 649 N.W.2d 617, 621 (quoting Smith v. Canton School Dist. No. 4-1, 1999 SD 111, ¶ 9, 599 N.W.2d 637, 639-40). “A decision is arbitrary and capricious when it is ‘not governed by any fixed rules or standard.’ ” Id. (citation omitted). Although the circuit court determined the Board acted correctly in denying the petition, our review proceeds “unfettered by any presumption that the circuit court correctly decided the matter in its review.” Id. Instead, this Court must examine the record in order to discern if the Board’s decision was based upon and supported by substantial evidence. Id. (citing Colman-Egan School Dist. No. 50-5 v. Jones, 520 N.W.2d 890, 892 (S.D.1994) (citation omitted)). “Substantial evidence has been defined as ‘such relevant and competent evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Oelrichs School Dist. No. 23-3 v. Sides, 1997 SD 55, ¶ 10, 562 N.W.2d 907, 911 (quoting Oldham-Ramona School Dist. No. 39-5 v. Ust, 502 N.W.2d 574, 581 (S.D.1993)).

ANALYSIS AND DECISION

[¶ 6.] Whether the Board’s decision to deny the minor boundary change petition was arbitrary, capricious, or unreasonable.

[¶ 7.] There is no dispute that the petition at issue in this case implicates the minor boundary change statutory scheme. Our only task on this appeal is to ascertain whether the Board’s decision to deny the petition was supported by substantial, competent evidence. With this limited scope of review in mind, we have consistently utilized the following five factors to aid our review in minor boundary change decisions:

1.Whether the petitioners are more closely aligned to the economic, social and religious life of the community into which they are being transferred.
2. Whether there is bus service to the residence.
3. Whether the district line which places their property in the current district was drawn in an arbitrary fashion.
4. Whether petitioner’s child has special needs best met in the District petitioners are attempting to join.
5. Whether the petitioners live closer to the school district they are joining as opposed to the district they are leaving.

Johnson, 2002 SD 89, ¶ 11, 649 N.W.2d at 622; Smith, 1999 SD 111, ¶ 9, 599 N.W.2d at 640; Sides, 1997 SD 55, ¶ 11, 562 N.W.2d at 911; Colman-Egan, 520 N.W.2d at 892. Both the Board and circuit court applied the above factors in denying Petitioners’ request. After a review of the record, we believe substantial evidence exists to support the Board’s decision to deny the petition. We address each of these factors in turn.

Petitioners’ Alignment with Gettysburg School District

[¶ 8.] Although they do some business in Hoven, both the Board and circuit court found that Petitioners were more closely aligned^to the social, economic; and religious life of the community of Gettysburg. This factor favors the Petitioners.

Bus Service

[¶ 9.] Currently, Gettysburg does not provide bus service to the two Kirby children who open-enroll to its school district. Although there was some discrepancy at the Board meeting, at trial a Gettysburg official indicated it would provide bus service to. the Kirby residence if the petition was granted. Hoven School District indicated it would provide bus service to Lebanon, South Dakota, approximately eight miles from the Kelly Kirby residence where the school-age children reside. While this factor certainly favors the Kirby family with children, see Smith, 1999 SD 111, ¶ 15, 599 N.W.2d at 641, it does not affect the remaining Petitioners who do not have children in need of bus service.

Arbitrariness of School District Boundaries

[¶ 10.] The Board and circuit court found that the boundaries of the Hoven School District were not arbitrarily drawn. While Petitioners are correct in pointing out this Court approved a minor boundary change transferring property from the Hoven School District to the Gettysburg District in Kellogg v. Hoven School Dist. No. 53-2, 479 N.W.2d 147 (S.D.1991), that decision did not specifically find that the entire Hoven district was arbitrarily drawn.

[¶ 11.] On the other hand, the Board and circuit court found that the petition’s proposed boundary would result in the Ho-ven School District’s boundary becoming arbitrarily drawn. The circuit court again noted that the sole petitioners with minor children living on the land included in the petition, Kelly and Renee Kirby, live only three miles from the Gettysburg school district. Nevertheless, the petition includes land four and one-half miles further east, and two miles further south, and one and one-half miles further north than the Kelly and Renee Kirby property. The land included in the petition forms a checkerboard pattern. Very little of the extra land is needed to connect the Kelly and Renee Kirby land to the Gettysburg boundary. The circuit court also observed that the land included in the current petition lies at the end of peninsula of land formed as a result of a previous boundary change, Based on the record before us, “[t]here was substantial evidence for the circuit court to find that the original boundary was not drawn in an arbitrary fashion and to find that the new boundary would be arbitrary.” Sides, 1997 SD 55, ¶ 22, 562 N.W.2d at 913.

Special Needs of the Children

[¶ 12.] None of the children residing on the land included in the petition have special needs.

Distance of Petitioners from Hoven and Gettysburg School Districts

[¶ 13.] The Kelly and Renee Kirby family, the only petitioners with minor children residing on the land included in the petition, lives thirteen miles from Gettysburg and slightly less than twenty-one miles to Hoven — a difference of less than eight miles. We have previously indicated that distances of nine and one-half miles, Jones, 520 N.W.2d at 893, and twelve miles, Oldham-Ramona, 502 N.W.2d at 584 was “not so significant as to result in much longer bus rides.” The Kirby’s have not raised any particular reasons why this brief difference would be of special concern. See id. Additionally, we note that while all of the roads from the Kirby residence to Gettysburg are gravel, all but eight miles of the road to Hoven are paved. This is significant because in times of inclement weather, paved roads are cleared first. Day to day travel is also faster on paved roads. Considering these observations and the fact that this factor only applies to the two Petitioners who have minor children living on the land included in the petition, we are unable to say this factor indicates the Board acted unreasonably.

Other Factors

[¶ 14.] In addition to the above factors, the Board also considered economic loss in granting this particular petition for minor boundary change. Economic factors, when considered “in conjunction with other relevant factors,” may be valid considerations for a school board to take into account in reviewing these types of petitions. Sides, 1997 SD 55, ¶ 28, 562 N.W.2d at 913 (emphasis omitted); see Jones, 520 N.W.2d at 893 (“[W]e have never held that a school district’s economic interests are irrelevant in considering a boundary change petition.” (quoting Old-ham-Ramona, 502 N.W.2d at 582)). Economic loss was certainly not the only factor the Board considered, however, as the analysis above indicates.

[¶ 15.] Here, it appears that rather than necessity or convenience of children to attend a different school district, the majority of Petitioners were primarily motivated by financial and other concerns. In this case, both the Board and circuit court placed emphasis on the fact that only Kelly and Renee Kirby had minor children who would be directly affected by the boundary change and that only a small portion of the land contained in the petition would be needed to move their property into the Gettysburg school district. Yet, the other Petitioners’ land was tacked onto the petition seemingly in an effort to move as much property into the Gettysburg district as would be allowable under SDCL 13-6-85. At trial, Petitioners’ consistently identified wanting to help out the Gettysburg school district because of a perceived imbalance between it and the Hoven school district.

[¶ 16.] In sum, the factors commonly used to guide our analysis in this type of case suggest the Board acted reasonably ■in denying Petitioners’ minor boundary change petition. Under our limited standard of review, the relevant inquiry is not what this Court would have decided but whether the Board relied upon substantial evidence in making its decision. We therefore affirm the judgment of the circuit court finding that the Board did not act arbitrarily or capriciously in denying the petition.

[¶ 17.] KONENKAMP and ZINTER, Justices, concur specially.

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

ZINTER, Justice

(concurring specially).

[¶ 19.] I write only to make explicit the dispositive fact that this “minor” boundary change had little to do with our five factors that concern the convenience and education of the children residing on the property to be transferred. Rather, the evidence reflects that the three Kirby children were only nominally involved, and this change was sought primarily for political and economic reasons; i.e., a perceived economic imbalance in the two school districts. That purpose, however, does not, justify a “minor boundary change” under SDCL 13-6-85 and our precedent. Instead, the Legislature has provided alternative methods to change boundaries for the purposes these petitioners espoused. Therefore, I join the court’s opinion.

[¶ 20.] Under our precedent, proposed boundary changes are examined under five factors. See Johnson v. Lennox School Dist. No. Jl-k, 2002 SD 89, ¶ 11, 649 N.W.2d 617, 622. If “the record indicate[s] the board rewrote or ignored the factors applicable to consideration of such petitions,” its decision is arbitrary, capricious, and an abuse of discretion. Id. at ¶ 10, 649 N.W.2d at 621. Moreover, a “Board’s decision [that] relies on factors not intended to be considered ... [also] renders the decision arbitrary and capricious, warranting reversal.” Id. at ¶ 30, 649 N.W.2d at 625. (emphasis added).

[¶ 21.] Here, the boundary change was sought for purposes not intended to be considered. The real purpose of this proposed “minor” boundary change is reflected in the trial court’s findings of fact, entered after it heard the evidence and witnesses presented at trial. Those unchallenged findings reflect that:

(1)This petition sought to move more than fifty-four, quarter-sections of land, having an assessed valuation of over $3 million. Although this was the maximum amount of property subject to transfer under the minor boundary change statute, the change would only accommodate the three children in the Kirby family, and that family owned only eleven of those fifty-four quarter sections.
(2) Only the Kirby family had children with educational needs, and those children already attended school in Gettysburg under open enrollment.
(3) Seven of the nine petitioners had no minor children needing an education, and except for the Kirby children, no children resided on any of the affected land.
(4) Three of the petitioners have never resided on the land they included in the petition.
(5)Only one quarter-section of the land was needed to connect the children’s residence to the Gettysburg School District. Moreover, the large, checkerboarded land mass tacked on to the Kirby property was located at the end of an extremely narrow peninsula of land (generally only a quarter section wide) extending three miles to connect it to the Gettysburg School District.
(6) Even though the children’s residence was 3 miles east of the Gettysburg School District, the proposed boundary change included land four and one-half miles further east of the Kirby children’s residence, two miles south of their residence, and one and one-half miles north of their residence.
(7) The other land was not used for residences, was not contiguous to the Gettysburg school district, and was “included by the other petitioners for the sole purpose of reforming the imbalance perceived by the petitioners between the Gettysburg school district and Hoven school district.”

(emphasis added). Thus, even though the presence of three children made it possible for Petitioners to fashion an argument under the five factors, the trial court’s findings reflect that the sole purpose of this petition was political and was unrelated to the five factors used to determine minor boundary disputes.

[¶ 22.] Consequently, this type of political dispute must be resolved through other alternatives provided by the Legislature. Those alternatives include school district (or voter initiated) reorganizations, and school district initiated and voter approved boundary changes. State action is also possible if taxable property in both districts is insufficient “to provide educational opportunities equal in comparison.” SDCL 13-6-2(2).

[¶ 23.] Absent such State action, the two local alternatives provide relief. First, individual school boards or district voters may initiate a reorganization under SDCL 13-6-10 et seq. to correct the problem at issue here. Second, if a reorganization is not feasible or desired, the Legislature has provided a “release valve” by which the Gettysburg School District alone could have initiated this boundary change. See SDCL 13-6-84.2 (which provides for public hearings in both districts and a public vote).

[¶ 24.] Significantly, the Legislature specifically dictated that this second alternative is the method for changing boundaries in cases like this. The Legislature expressed its policy that political boundary changes, proposed for reasons other than children “residing on the property to be transferred,” must be initiated by the school board under the alternative procedure in SDCL 13-6-84.2, rather than the minor boundary change procedure utilized by petitioners under SDCL 13-6-85. See SDCL 13-6-84.1(2).

[¶ 25.] Here, it is acknowledged that the problem at issue is broader than three children residing “on the boundary.” As even the dissent concludes, “it should be obvious to the objective viewer that, at a minimum, almost all real estate currently in the Hoven School District south of the northern tier of Gettysburg Townshipfe] should be in the Gettysburg School District to eliminate the current arbitrariness of the school district boundaries.” Infra ¶ 39 (emphasis original). However, this problem with relative property values and boundaries in both districts is a matter not properly addressed under the minor boundary change statute and the cases interpreting it.

[¶ 26.] Therefore, the Hoven District did not err in concluding that the petition for a “minor” boundary change was not the proper remedy. As the trial court correctly noted after hearing the witnesses testify:

The purpose of the law allowing the minor boundary change [under SDCL 13-6-85] is to accommodate students. Two arguments support this conclusion. First, children must reside in the area to be transferred. SDCL 13-6-84.1(2). Second, the factors which the school board is required to consider deal primarily with' the convenience of the student. (Citation omitted). It is not the purpose of the minor boundary change to reform districts for political, social or economic reasons (like supporting your alma mater or running for school Board or undoing a perceived imbalance).

This reasoning, is correct, and there is overwhelming evidence that this petition was initiated for a political purpose not intended to be addressed under SDCL 13-6-85. Therefore, Petitioner’s remedy lies with the other legislative alternatives for boundary changes.

[¶ 27.] KONENKAMP, Justice, joins this special writing.

SABERS, Justice

(dissenting).

[¶ 28.] The petition for a minor boundary change from the Hoven School District met all of the requirements of the South Dakota statutes and all of the key factors of recent South Dakota cases on minor boundary changes. Despite that, the Ho-ven School District, for economic and improper reasons, denied the petition arbitrarily, capriciously and unreasonably. The circuit court committed reversible error by affirming the improper reasoning and focusing on the economic position of the Hoven School District instead of the children, parents and factors approved in Johnson v. Lennox School District No. 41-4-2002 SD 89, 649 N.W.2d 617; Smith v. Canton School District No. 41-1, 1999 SD 111, 599 N.W.2d 637; and Kellogg v. Hoven School District No. 53-2, 479 N.W.2d 147 (S.D.1991). We should reverse and remand for all of these reasons.

[¶ 29.] SOUTH DAKOTA LAW ALLOWS MINOR BOUNDARY CHANGE PETITIONS WHEN THE STATUTORY REQUIREMENTS AND CASE LAW GUIDELINES ARE MET.

[¶ 30.] SDCL 13-6-84.1,-85, & -86 provide for minor boundary changes. As indicated, this petition meets all of the statutory requirements. The Legislature, when establishing these statutes, clearly wanted a release valve that could be used to make changes in a school district without a total reorganization. These minor boundary change statutes have been with us for more than 70 years. 1931 SD Session laws ch. 138 § 173. It is time for the school districts to honor them according to the letter and the spirit of the law.

[¶ 31.] The Board, ■ circuit court, and the majority opinion properly state the factors to be considered when determining whether to allow a ' minor boundary change, but then fail to give those factors proper weight. Instead, those opinions rewrite the factors and place great emphasis on the perceived economic motivation of the petitioners. The record simply does not support the determination that the Board’s decision was supported by “substantial, competent evidence.” Majority opinion, ¶ 6. A review of the Board’s findings for each factor indicates that the Board’s only real justification for denying the boundary change was its concern of economic loss.

Alignment with the community to which transfer is being sought

[¶ 32.] The Board, circuit court, and the majority opinion all concede that Petitioners, all voters, residents and landowners are more closely aligned to the economic, social and religious life of the Gettysburg School District. This factor must be decided for Petitioners.

Bus Service

[¶ 33.] The Gettysburg School District will provide bus service to Petitioners’ door. The Hoven School District indicates that it will provide service to Lebanon, South Dakota. This is eight miles from the children’s residence. Smith, 1999 SD 111, 599 N.W.2d at 641. The majority opinion’s determination that this factor does not affect the Petitioners who do not have children is irrelevant. The question to be addressed is whether there is bus service to the residence, not whether every Petitioner can claim a benefit or detriment under a particular factor. This factor must clearly be decided for Petitioners.

Arbitrariness of School District Boundaries

[¶ 34.] Far from being supported by substantial and competent evidence, the Board’s finding on this factor was nothing more than the bare statement:

The original Hoven School District boundaries were not arbitrarily drawn and the proposed minor boundary change would make the boundaries arbitrarily drawn.

The majority opinion attempts to give this finding some support, but fails in two respects. First, it is not the function of this Court to dredge up factual support for the Board’s findings. On the contrary, we must hold the findings arbitrary unless there is substantial evidence to support them. Second, the majority opinion completely ignores the primary argument and support offered by Petitioners. The argument is worthy of reconsideration:

The existing Hoven School District is the result of consolidation more than thirty (30) years ago. At that time there were in excess of 15 schools operated by the Hoven School District within its boundaries. Since consolidation, the only remaining high school and elementary school being operated in the Hoven School District are in Hoven on the north boundary of Potter County. The map attached to the petition shows a substantial amount of the Hoven School District (including a township two (2) miles straight south of the Gettysburg School District) is substantially closer to the school in the Gettysburg District. (See Appx. 7, 8). The current school district boundaries are reflective of a time passed. Additional facts show the boundaries as currently drawn are arbitrary. Co-oping between schools for athletics and the fact that Hoven co-ops with schools farther to the north and to the east which would be 60 to 70 miles from the Hoven School District’s southwestern boundary, further show the Ho-ven School District boundaries are arbitrary. Considering sixteen percent (16) or thirty-three (33) Hoven School District students attend the Gettysburg School District and none of the students in the Gettysburg School District attend the Hoven School District, the record establishes an archaic and out-dated school boundary for the Hoven School District. (See Appx. 7, 8 which are attached.)
In Smith at 641, the Court found the map introduced as an exhibit substantiated the issue that the district line which placed the property in the current district was drawn in arbitrary fashion. The Court, in Kellogg v. Hoven School Dist. No. 53-2, 479 N.W.2d 147, found an almost identical map to be in favor of the petitioner. Kellogg at 152. (See Appx. 7 and 8). A large part of the land base in the Hoven School District lies closer to the Gettysburg school than the . Hoven school. The fact the Hoven School District boundary was found in 1991 to be arbitrary and the only substantive change since 1991 is that the Hoven School District now operates one attendance center in Hoven on the far northern boundary and has closed all other attendance centers in its district, mandates the same finding.

This factor must be decided in favor of Petitioners.

Distance to the Gettysburg School District

[¶ 35.] The Kirbys live 13 miles from the Gettysburg school and 21 miles from the Hoven School. The majority opinion and the Board- rewrite this factor to inquire about the quality and type of roadway connecting Petitioners to the schools. However, this factor clearly cuts in favor of Petitioners and must be weighed accordingly.

Special Needs of the Children

[¶ 36.] There are no special needs of the children.

Other Factors

[¶ 37.] The majority opinion focuses heavily on the perceived motivation of Petitioners. However, if Petitioners meet the statutory requirements, which they do, and if the factors weigh in favor of Petitioners, which they do, Petitioners’ motivation is irrelevant. Our function is to determine whether the Board acted arbitrarily and capriciously. A fair reading of ■ the Board’s findings in light of the statutes and factors indicates that the Board did act arbitrarily, and that should be the end of this Court’s inquiry. There is no factor or statutory criteria which requires an examination of Petitioners’ motives. The majority opinion sanctions the Board’s attempt to shield itself from economic loss by simply rewriting the factors.

[¶ 38.] The Board also relied heavily on its finding that:

The Board is concerned that if it allows this comparatively large petition, similar petitions will be presented in the future, creating a domino effect. This petition and future petitions will seriously affect the economic viability of the Hoven district.

As Petitioners note, we have addressed this type of reasoning in the past and found it to be unconvincing. In Kellogg, 479 N.W.2d at 152, we held:

Board’s reasons for denying Kellogg’s petition dwell almost exclusively on the hypothetical financial impact the boundary change could have on the Hoven district, and fail to discuss any of the compelling factors which support the granting of the petition.

As Petitioners point out:

At the time, the Hoven School District held 65 of the assessed valuation of the total area, but only 37 of the total enrolled pupils, including the 40 pupils it pays to send to the Gettysburg district.
Twelve (12) years later, the Hoven School District has 61.7 of the assessed valuation of the total area and 35.5 of its enrolled students. Thirty-three (33) or sixteen percent (16) of its students are open enrolled to attend the Gettysburg school.
There have been numerous minor boundary changes, but this “tax haven” school district, after 30 years, remains substantially intact. When a district closes approximately 15 attendance centers through the years and has but one location remaining on the far north boundary, and that district has sport coops with schools substantially farther north and east, minor boundary changes are not only foreseeable, but reasonable acts of taxpayers and landowners to be a part of the community in which they live. The legislature reserved this power to the citizens seventy years ago allowing for flexibility and knowing school boundaries must evolve with the times.
The Gettysburg School District has a tax valuation of $101,834,112 and educates 320 children. The Hoven School District has a tax valuation of $164,256,260 and educates 176 children. Thirty-three (33) or sixteen percent (16) of the students residing within the boundaries of the Hoven School District attend school in the Gettysburg School District. Lakes and Brown, who join in the petition, have children or grandchildren residing in the Gettysburg School District. They desire to have some of their land included in the district that educates their children. Taxes are higher in the Gettysburg School District. The Gettysburg School District receives $3,889 for each student who resides in the Hoven School District and attends the Gettysburg school through open enrollment. Instead of $3,889 for each of the three Kirby children when they attend the Gettysburg school if the petition is granted, the Gettysburg School District will receive an additional $8,745 due to increased tax base.

Hoven School District is making the same argument that we rejected in Kellogg, 479 N.W.2d at 152. That argument is less viable today than it was in 1991 and should be rejected by the Court. As Petitioners have shown, the Hoven School District:

has a larger tax base, lower taxes, substantially less students to educate and a large percentage of its children attending the school district with less tax base.

[¶ 39.] Petitioners accurately portray this Court’s prior statements concerning economic factors:

The court has consistently criticized “a school board’s excess reliance on economic factors as a basis for denial of a boundary change petition.” Johnson, ¶ 26, Oldhamr-Ramona, 502 N.W.2d at 582. The court has repeatedly provided “school districts do not have a vested right to retain their existing status or territory. As creatures of the legislature they are subject to periodic change, alteration or abolishment.” Johnson, ¶ 26, citing Nelson v. Deuel County Bd. of Education, 80 S.D. 559, 563, 128 N.W.2d 554, 556 (1964) (citations omitted). Accord McLaughlin School Dist. 15-2 v. Rosters, 441 N.W.2d 682, 685 (S.D.1989); Oldhamr-Ramona, 502 N.W.2d at 582. In Johnson, the percentage of land to be transferred was 1.97 (under the 2 ceiling). In that case it was found that the school board denying the petition was clearly over-reliant on economic factors as a basis for denying the boundary change when the petitioners met the criteria set forth above. The Court further finds in Johnson, ¶27: “the economic effects of a minor school district boundary change are largely taken into account by the statutory limitations on such a change. SDCL 13-6-85 limits a ‘minor’ boundary change to property affecting not more than two percent (2) of the assessed valuation of a district.”

[¶ 40.] I encourage the Court to study Appendix 7, attached to this writing. It should be obvious to the objective viewer that, at a minimum, almost all real estate currently in the Hoven School District south of the northern tier of Gettysburg-Township should be in the Gettysburg School District to eliminate the current arbitrariness of the school district boundaries.

[¶ 41.] For all of these reasons I respectfully dissent. We should reverse and remand consistent with this writing.

[¶ 42.] MEIERHENRY, Justice, joins this dissent.

ATTACHMENT

      . SDCL 13-6-84.1 sets the following criteria for boundary changes:
      (1) The boundary of the area proposed to be transferred shall be coterminous at some point with the common boundary of the two school districts!].]
      (2) Children must reside within the boundary of the area to be transferred, unless it is an area change initiated by a school board as provided in § 13-6-84.2.
      SDCL 13-6-85 further provides in pertinent part:
      A boundary change, affecting not more than two percent of the assessed valuation and not more than two percent of the tax-exempt acreage or other tax-exempt property to be determined at the discretion of the school district from which the area is to be taken, may be made upon an application for a boundary change to the school board of the school district from which the area is to be taken and to the school board of the school district to which the area is to be annexed, in the form of a petition signed by all of the owners of land, excluding land owned by the state or any other political subdivision in the area to be transferred by the boundary change. Copies of the petitions shall also be delivered by the petitioners to the board of county commissioners having jurisdiction over the school districts affected.
      There is no dispute the statutory requirements are met in this case: the land included in the petition constitutes 1.99% of the Hoven School District’s assessed value; three children live on the land included in the petition; the land is conterminous with the Gettysburg School District; and all registered voters residing on the land signed the petition.

      . Although Petitioner John Lake has two school-age children, they live in Gettysburg and have never resided on the land included in the petition. Thus, the interests of these children are not germane to the minor boundary change petition before us.

      . See also, Smith v. Canton School Dist. No. 41-1, 1999 SD 111, 599 N.W.2d 637 (considered factors); Oelrichs School Dist. 23-3 v. Sides, 1997 SD 55, 562 N.W.2d 907 (substantial evidence supporting the factors, also supported the Board’s decision to deny the boundary change); Colman-Egan Sch. Dist. No. 50-5 v. Jones, 520 N.W.2d 890 (S.D. 1994) (finding that the Board's disapproval of the boundary change was substantially supported by the record); Oldham-Ramona Sch. Dist. V. Ust, 502 N.W.2d 574, 584 (S.D. 1993) ("Because the board weighed the appropriate factors in considering Jensens’ petition, its disapproval of the petition was not clearly erroneous, arbitrary, capricious or an abuse of discretion.”); Kellogg v. Hoven Sch. Dist. No. 53-2, 479 N.W.2d 147 (S.D. 1991) (reversed because decision not based upon the factors); Shumaker v. Canova Sch. Dist. No. 48-1, 322 N.W.2d 869 (S.D. 1982) (considered factors).

      . The circuit court also found that the Hoven School District offered to grant the boundary change to the affected family's land as well as unaffected land owned by relatives, but: “petitioners refused the offer because it would not serve their purpose of reforming the perceived imbalance between the Gettysburg School District and the Hoven School District.” Petitioners have not attacked this finding of fact.

      . Even the majority opinion concedes:
      There is no dispute the statutory requirements are met in this case: the land included in the petition constitutes 1.99 of the Hoven School District's assessed value; three children live on the land included in the petition; the land is conterminous with the Gettysburg School District; and all registered voters residing on the land signed the petition.


source: Caselaw Access Project

author: ZINTER, Justice. MEIERHENRY, Justice

license: Public Domain

text:
    2004 SD 101
    Jane DOE and Others Similarly Situated, Applicant and Appellant, v. Clark QUIRING, in his official capacity as Chief of Police, City of Sioux Falls, and Mike Milstead, in his official capacity as Sheriff, Minnehaha County, Respondents and Appellees.
    No. 22944.
    Supreme Court of South Dakota.
    Argued June 02, 2004.
    Decided Sept. 1, 2004.
    Steve Miller, Dennis C. McFarland, Sioux Falls, South Dakota, Attorneys for applicant and appellant.
    Lawrence E. Long, Attorney General, Mark Barnett, Chief Deputy Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for Amicus Curiae.
    R. Shawn Tornow, Chief Assistant City Attorney, Sioux Falls, South Dakota, Attorney for appellee Quiring.
    David R. Nelson, Minnehaha County State’s Attorney, Sioux Falls, South Dakota, Attorney for appellee Milstead.
   ZINTER, Justice.

[¶ 1.] Jane Doe (Applicant), an incest victim, sought a writ of prohibition to prevent the listing of incest offenders and their offenses on the State’s Sex Offender Registry in Minnehaha County. Applicant contended that because the offense of incest involves familial relationships, the listing would violate a statutory prohibition against the release of “identifying information” regarding victims. The trial court denied the writ, concluding that the listing did not constitute identifying information. We affirm.

Pacts and Procedural History

[¶2.] The South Dakota Legislature first enacted a sex offender registration law in 1994. See SDCL 22-22-30 et seq.; Meinders v. Weber, 2000 SD 2, ¶ 6, 604 N.W.2d 248, 262. However, no public access to the Registry was permitted until a “series of well-publicized tragedies illustrated the futility of sex offender registration without attendant public notification.” Id. at ¶ 7. As a result of those tragedies, both Congress and the states began enacting legislation (often balled “Megan’s Law”) that required community notification. Id. South Dakota amended its law in 1995 “to include a public access provision.” Id. at ¶ 8. That amendment, codified in SDCL 22-22-40, is the focus of this litigation. It made the Registry a “public record,” but prohibited the release of “names or any identifying information regarding the victim.” This case presents the question whether the provision protecting victim identifying information precludes public access to the name and type of crime committed when the case involves an “incest” offender.

[¶ 3.] Under the South Dakota framework, all convicted sex offenders are required to “register with the chief of police of the municipality ... or, if no chief of police exists, then with the sheriff of the county.” SDCL 22-22-31. Pursuant to this statute, Clark Quiring, Chief of Police for the City of Sioux Falls, and Mike Mil-stead, Sheriff in Minnehaha County, jointly maintain the Registry in that county.

[¶ 4.] The Registry is maintained in two forms. Neither form discloses the victim’s name, initials, date of birth or the familial relationship between the offender and the victim. The first is a non-computerized, physical document. That document contains the offender’s name, sex, date of birth, address, criminal offense, date of conviction, and the location of the conviction. It does not include the offender’s picture. In order for members of the public to access this document, they must go to the Public Safety Building and request to view it.

[¶ 5.] The second form is maintained electronically in a computer accessible format. That Registry is viewable on the internet through a City of Sioux Falls website. It includes photographs of offenders as well as each offender’s address, date of birth, sex, race, height, weight, eye color, hair color, criminal offense, date of conviction, and the state and county of the conviction. Although the physical document can only be viewed by visiting the Public Safety Building, the computerized format can be viewed in “[l]ess than five minutes” on the internet. The evidence reflects that when a similar system first became available in Pennington County, that website received 4000 “hits” per day.

[¶ 6.] Applicant was the victim of incest committed by her father when she was less than 21 years old. The offense occurred in Minnehaha County, and both the Applicant and the offender still reside there. The parties stipulated that Applicant’s father was convicted of “the crime of incest ” and that he “had multiple family members” within the class of potential incest victims. They further stipulated that the charging document, which is not a part of the Registry, is a part of a public court file that is available for public inspection. That public document includes Applicant’s true name printed in its entirety.

[¶ 7.] Prior to the circuit court’s temporary injunction, the Minnehaha County Registry included six incest offenders. Four different familial relationships were involved for those offenders. However, the Registry did not disclose any victims’ name, initials, date of birth, or familial relationship. Moreover, in each case, there were at least two individuals who were within the class of potential victims.

Analysis and Decision

[¶ 8.] This appeal raises a question of law concerning the construction of SDCL 22-22-40. We review matters of statutory construction de novo. In re West River Elec. Ass’n, Inc., 2004 SD 11, ¶ 14, 675 N.W.2d 222, 226 (citations omitted).

[¶ 9.] We begin our analysis by reviewing the historical evolution of the Registry. In 1994, the Legislature enacted SDCL 22-22-30, which defines the sex crimes for which registration is required. In defining those crimes, the Legislature chose to specifically denominate “incest” as one of the crimes triggering registration. The statute defines this crime as “[ijncest as set forth in § 22-22-19.1 if committed by an adult.” Id. (Emphasis added.) Therefore, adults who are convicted of “incest as set forth in SDCL 22-22-19.1” are required to register.

[¶ 10.] However, the information required to be provided by the offender under this initial legislation was limited, and the type of sex crime was not included. The initial registration statute only required filing the offender’s:

1. Name and all aliases used;
2. Complete, description, photographs, and fingerprints; and,
• 3. Residence, length of time at that residence, and length of time expected to remain at that residence.

SDCL 22-22-32 (1994). There was also no provision in the initial legislation requiring any public disclosure of this Registry information.

[¶ 11.] However, in 1995, the Legislature took the first of two steps to require public disclosure of the offender’s Registry information. Meinders, 2000 SD 2, ¶ 8, 604 N.W.2d at 252. The 1995 amendment first made “registration records collected by local law enforcement agencies, [ ] registration lists provided to local law enforcement [,] ” and records kept by state agencies “public records.” SDCL 22-22-40 (emphasis added). At the same time, the 1995 legislation protected “identifying information regarding the victim.” Id.

[¶ 12.] The 1995 amendment defined the scope of the information that must be released to the public. It did so by referring to a general public records act codified in SDCL ch 1-27. SDCL 1-27-1 of that act provides that if any information is kept by a public officer pursuant to statute, it must be available and open to public inspection. That statute provides:

If the keeping of a record, or the preservation of a. document or other instrument is required of an officer or public servant under any statute of this state, the officer or public servant shall keep the record, document, or other instrument available and open to inspection by any person during normal business hours.

SDCL 1-27-1 (emphasis added). Thus, after the 1995 amendments, because all of the Registry information was required to be kept by law, it was generally subject to public disclosure. See generally Doe v. Nelson, 2004 SD 62, ¶ 19 n. 11, 680 N.W.2d 302, 311 n. 11. However, the Legislature had not yet included the “type of sex crime” in that information that was required to be kept and therefore disclosed. See SDCL 22-22-32 (1994).

[¶ 13.] Just three years later the Legislature took that second step and required public disclosure of the “type of sex crime.” It did so by passing an act “to require that certain information be disclosed on the sex offender registry.” 1998 SD Laws ch 134 (emphasis added). There were two relevant provisions. The first amended SDCL 22-22-32 to specifically require that the “type of sex crime” be kept on the Registry maintained by law enforcement officials. That section then read:

The registration shall include the following information:

(1) Name and all aliases used;
(2) Complete description, photographs, and fingerprints;
(3) Residence, length of time at that residence, and length of time expected to remain at that residence;
(4) The type of sex crime convicted of; and
(5) The date of commission and the date of conviction of any sex crime committed.

SDCL 22-22-32 (emphasis added). The second provision created a new statute, SDCL 22-22-32.1, which specifically required law enforcement officials to include the “type of sex crime” when providing information from the Registry. SDCL 22-22-32.1 provided:

When a law enforcement official provides information from the sex offender registry, the information shall include the offender’s name, address, the type of sex crime convicted of, and the date of the commission of the crime and the date of conviction of any sex crime committed.

(Emphasis added.)

[¶ 14.] Thus, since 1998, the type of sex crime has been specifically required to be included on the Registry maintained by law enforcement under SDCL 22-22-32. Furthermore, law enforcement officials have been specifically directed to include the type of sex crime when providing information from the Registry under SDCL 22-22-32.1. And, as is most pertinent to this case, because this information has been collected pursuant to statute, it has been open for public inspection under SDCL 22-22-40 and 1-27-1.

[¶ 15.] Applicant, however, argues that public access to incest offenders and their crimes through the Registry “necessarily” involves the “release of ... identifying information regarding the victim of the crime” in violation of the second paragraph of SDCL 22-22-40. Applicant reasons that because the crime of incest involves familial relationships, the very definition of the crime of incest “so narrows the group of possible victims that identification of the victim is necessarily implicated by the name of the offense.”

[¶ 16.] Applicant is correct only to the extent that the definition of incest narrows the group of possible victims. The statutorily described crime of “incest under SDCL 22-22-19.1,” limits possible victims to those who are under twenty-one and are within the degree of consanguinity or affinity within which marriages are prohibited. The statute provides:

Any person, fourteen years of age or older, who knowingly engages in sexual contact with another person, other than that persons spouse, if the other person is under the age of twenty-one and is within the degree of consanguinity or affinity within which marriages are by the laws of this state declared void pursuant to 25-1-6, is guilty of a Class 5 felony[.]

Id. However, it must be noted that this class of individuals includes parents and children, ancestors and descendents of every degree, brothers and sisters of the half as well as the whole blood, uncles and nieces or aunts and nephews, and cousins of the half as well as of the whole blood. See SDCL 25-1-6.

[¶ 17.] Consequently, the statutes at issue only work to disclose a class of relatives who are potential victims, rather than identifying any individual victim. Indeed, Applicant stipulated that at all times relevant to this case, there were multiple family members who fell within her class of potential victims. Nevertheless, she points out that this “class of potential victims, disclosed- by the term incest, and further narrowed by the crime victim-age limit, is minuscule compared with the ‘general’ public.’ ” Applicant further points out that SDCL 22-22-40 prohibits the disclosure of both “the name” and “any” identifying information regarding the victim. Because these are specific and general categories, Applicant contends that the general category, “any identifying information,” should be interpreted to be “limitless in scope, and cannot mean merely the actual, precise identity of the victim, since the word ‘name’ means that, and since ‘any identifying information’ must therefore mean something else.”

[¶ 18.] We generally agree that the category “any identifying information” is broader than the category “name,” and therefore, the broader category encompasses such things as social security numbers, initials, or other information that identifies a particular individual. However, to interpret this category so broadly to be “limitless in scope” and to include the entire class of all potential victims would result in an impermissibly strained, unpractical, and absurd result. After all, disclosure of any detail of any offense tends to limit the class of potential victims. Therefore, Applicant’s construction would completely emasculate the legislative direction to disclose incest offenders and their offenses. Such an interpretation is not permitted. See generally Peters v. Spearfish ETJ Planning Comm’n, 1997 SD 105, ¶ 13, 567 N.W.2d 880, 885 (noting that “[w]hen a term is not defined, it must be construed according to its accepted usage, and a strained, unpractical, or absurd result is to be avoided”) (citing Nelson v. South Dakota State Bd. of Dentistry, 464 N.W.2d 621, 624 (S.D.1991)).

[¶ 19.] Instead, we agree with the trial court’s observation that because the Registry does not reveal the- victim’s familial relationship, age, physical description, address, or gender, a victim could be any one of a number of less than 21-year-old relatives of the offender. Under these circumstances, we believe that the mere listing of the offender and type of offense is not the disclosure of the “identifying information” that the Legislature intended to prohibit. It could not have been the Legislature’s intent because, if carried to its logical conclusion, Applicant’s position would prohibit the public disclosure of any detail of any offense. We do not think the Legislature intended such an absurd construction when it adopted SDCL 22-22-40.

[¶ 20.] This conclusion is especially compelling in light of the historical fact that the 1994 Legislature specifically denominated the Registry offense at issue as “incest,” and the 1998 Legislature required that the “type of sex crime” be “disclosed” to the public. This history clearly suggests that, notwithstanding the narrowing of the class of potential victims, the Legislature knowingly intended that registered “incest offenders” be disclosed to the public. See In re Estate of Amundson, 2001 SD 18, ¶ 19, 621 N.W.2d 882, 887 (noting that “[w]hen deciding statutory intent, we presume that the Legislature had in mind previously enacted statutes on the subject”).

[¶ 21.] We also note that the Legislature could have limited the scope of victim identifying information in the manner Applicant now suggests when it enacted SDCL 22-22-40, 22-22-32, or 22-22-32.1. For example, the Legislature could have prohibited the release of selected sex offenses such as “incest”; it could have chosen the dissent’s preference to repeal the statutory reference to “incest” and redefine the violation of SDCL 22-22-19.1 as sexual contact, rape or something other than “incest;” it could have prohibited the release of any information that could or might tend to identify a victim upon investigation; or, it could have made the word “incest” confidential as it did for the social security numbers that it also required to be kept in the Registry. See SDCL 22-22-32(6) (2003). However, it did not take any of these steps to restrict use of the word “incest.” On the contrary, as previously pointed out, the Legislature went so far as to specifically denominate this offense as “incest,” and further required that this type of crime be disclosed to the public. We therefore agree with City and County that “the legislature’s intent was to prevent the disclosure of only that information which, on its face, would directly reveal the victim’s identity.”

[¶ 22.] Applicant alternatively argues that SDCL 22-22-32.1, which requires that the “type of sex crime” be included in the information provided by law enforcement, is only applicable to inter-law enforcement exchanges. However, this argument is not supported by the text or history of the Registry legislation. As was previously noted, the 1995 and 1998 amendments spe-cifieally mandated public disclosure of the type of sex crime. Therefore, the text of the chapter as a whole does not suggest that the disclosure contemplated in SDCL 22-22-32.1 was limited to inter-agency exchanges. See Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (noting that the intent of a statute must be determined from the statute as a whole, as well as enactments relating to the same subject).

[¶23.] Second, even if we were to agree with this inter-agency disclosure argument under SDCL 22-22-32.1, the “type of sex crime” must still be publicly disclosed under other statutes. Notably, apart from SDCL 22-22-32.1, the type of sex crime must be included in the Registry each year by the offender pursuant to SDCL 22-22-32 and SDCL 22-22-31.4. These provisions require sex offenders to register and re-register annually, disclosing the information required by SDCL 22-22-32. Because the registration information required by SDCL 22-22-32 includes the “type of sex crime,” there is a separate, independent statute that makes this information public. Therefore, even if the information provided by law enforcement under SDCL 22-22-82.1 were only to be shared among law enforcement agencies, that same information is a public record because it was required to be collected from offenders under SDCL 22-22-32.

[¶ 24.] We ultimately conclude that disclosing incest offenders and their type of sex crimes in the manner required by the statutes is not a disclosure of “identifying information regarding the victim” within the meaning of SDCL 22-22-40. Instead, the offender and type of offense only reveal a class of individuals who could be potential victims. While we recognize that speculation, and perhaps further investigation, might further narrow the class of potential victims, the-Legislature did not prohibit that eventuality when it mandated such disclosures in 1995 and again in 1998. The Legislature also took no action to make confidential the already public record of Applicant’s full name in the circuit court records.

[¶ 25.] Affirmed.

[¶ 26.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 27.] SABERS and MEIERHENRY, Justices, dissent.

MEIERHENRY, Justice

(dissenting).

[¶ 28.] I respectfully dissent.

[¶ 29.] The dilemma here is how to give effect to all the provisions of the sex offender registration laws without compromising the confidentiality of the victim’s identity. The legislation (1) requires sex offenders to register, (2) makes the information public, arid, at the same time, (3) makes “the name or any identifying information” of the victim “confidential.” SDCL 22-22-31, -32.1, -40. A conflict arises among the provisions when the crime is identified as “incest.”. Incest by definition identifies a rather limited class of victims and • could breach the confidentiality the law affords the victim. The Chief of Police and Sheriff argue that the law requires the sex crime specifically be identified as incest when publicly disseminated. I do not agree.

[¶ 30.] A resolution to the conflict is found in the-plain and ordinary meaning of the statutory language. In applying rules of statutory construction, we have said:

In analyzing statutory language:

[W]e adhere to two primary rules of •statutory construction. The first rule is that the language expressed in the statute ' is the paramount consideration.
The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.
When we must, however, resort to statutory construction, “[t]he intent of the legislature is ‘derived from the plain, ordinary and popular meaning of statutory language.’ ” (internal citations omitted).

Petition of West River Electric Assn., 2004 SD 11, ¶ 15, 675 N.W.2d 222, 226. The plain, ordinary and popular meaning of the wording of the statute does not require the sex offense be specifically identified as “incest” as the majority states. Initially, the law requires: “When a law enforcement official provides information from the sex offender registry, the information shall include the offender’s name, address, the type of sex crime convicted of, and the date of the commission of the crime and the date of conviction of any sex crime committed.” SDCL 22-22-32.1. (emphasis added). Additionally, the law prohibits “the release of the name or any identifying information regarding the victim of the crime to any person other than law enforcement agencies, and such victim identifying information is confidential.” SDCL 22-22-40. (emphasis added).

[¶ 31.] For purposes of sex offender registration, the law provides a list of crimes classified as sex crimes. SDCL 22-22-30. Only one of the crimes listed— sexual contact with a family member— identifies the crime specifically as “incest.” SDCL 22-22-30(4). The statutory definition of sexual contact with a family member, however, does not use the term “incest;” it provides:

Any person, fourteen years of age or older, who knowingly engages in sexual contact with another person, other than that person’s spouse, if the other person is under the age of twenty-one and is within the degree of consanguinity or affinity within which marriages are by the laws of this state declared void pursuant to § 25-1-6, is guilty of a Class 5 felony.

SDCL 22-22-19.1 (emphasis added). As to the crime of rape, the list simply includes, “Rape, as set forth in SDCL 22-22-1,” with no specific reference to incest. SDCL 22-22-30(l).

[¶ 32.] The statute requires that the public be provided “the type of sex crime” committed. SDCL 22-22-32.1. According to Webster’s New World Dictionary, the word “type” is defined as “a kind, class, or group having distinguishing characteristics in common.” Webster’s New World Dictionary of the American Language 1538 (Second College Edition 1970). The plain and ordinary meaning of the statute only requires law enforcement to identify the sex crime by kind, class or group, ie. “type.” Consequently, in the case of rape of a family member or sexual contact with a family member, the specific crime of “incest” need not be identified. The statutory requirement is met by identifying the “type of crime” as the general category of (1) rape or (2) sexual contact. This is similar to the method used by the Department of Corrections (DOC) on its web page when it reports the crimes for which the prisoners are being held. DOC reports the general categories of “rape” and “sexual contact” and does not specifically identify “incest.” State of South Dakota, Department of Corrections (visited July 20, 2004) www.state.sd.us/correc-tions/adult — stats.htm. The identification of “type of crime” as rape and sexual contact rather than incest gives plain and ordinary meaning to the legislative language and satisfies the purpose of the legislation.

[¶ 33.] We have previously opined that the legislative purpose of the sex offender registration law is twofold: (1) “to alert the public in the interest of community safety” and (2) to assist law enforcement. Meinders v. Weber, 2000 SD 2, ¶ 13, 604 N.W.2d 248, 255. We said in Meinders,

We conclude that the Legislature’s intention in requiring registration was to accomplish the regulatory purpose of assisting law enforcement in identifying and tracking sex offenders to prevent future sex offenses, especially those against children. Furthermore, the purpose of the public access to registrant information as provided in SDCL 22-22-40 was to alert the public in the interest of community safety, and to prevent and promptly resolve incidents involving sexual offenses.

Id. Initially, the legislative purpose “of alerting the public in the interest of community safety” is satisfied by identifying the crime as “rape” or “sexual contact.” To note the crime specifically as incest only serves to narrow the class of victims to a small number capable of being identified. The size of the class of incest victims is limited to family members. The number of family members under the age of twenty-one is even smaller and, in some cases, may include only a couple of children. Publicly identifying the crime as “incest” significantly increases the risk of providing “identifying information of the victim” and may bring opprobrium on family members who were not victims. SDCL 22-22-40. It may also have the effect of making victims or family members reluctant to report the crimes knowing the registry will list the crime as incest. Often incest crimes go unreported because of the fear of public exposure and embarrassment created for the family, victim and perpetrator. Michele L. Earl-Hubbard, The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s, 90 NW U.L.Rev. 788, 856 (Winter, 1996). As one author noted, “Ironically, Megan’s Laws may stigmatize the very victims of sex offenses whom they are designed to protect, many of whom are children living in the same house as the sex offender.” Daniel J. So-love, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53 DUKE L.J. 967, 1060 (December 2003.)

[¶ 34.] Whether the perpetrator committed rape against a family member rather than raping a neighbor or neighbor’s child or a stranger does not make the perpetrator any more or less dangerous to the community. Identifying the perpetrator as a “rapist” or as having committed the crime of “sexual contact” alerts the public to the danger the offender poses to the community. It also protects the victim from being identified.

[¶ 35.] The additional purpose of “assisting law enforcement in identifying and tracking sex offenders to prevent future sex offenses” is not thwarted. Central to the sex offender registration law is the requirement that a convicted sex offender annually provide certain information to local law enforcement. SDCL 22-22-31 to-31.4. The offender must provide certain information about himself as well as the crime in the registration. SDCL 22-22-32. The information in the registration is forwarded to the Division of Criminal Investigation (DCI). DCI maintains a central file available to law enforcement statewide and to regional and national registries. SDCL 22-22-33 and -34. The DCI makes the file available to all local law enforcement and regional and national registries. SDCL 22-22-33, -34. Law enforcement has access to all the identifying information (including the specific crime) to assist it in tracking the registrants and preventing future offenses.

[¶ 36.] This action deals with a single case out of Minnehaha County. It is not clear whether all “incest” crimes are identified as such in Minnehaha County or elsewhere. The State admitted at oral argument that there is no statewide protocol established for law enforcement to identify sex crimes on the registry. Local law enforcement officers make the decision on how to publicly identify a crime under the registration law. Pennington County may not identify the sex crime as incest on the web page where Minnehaha County may, or vice versa. Consequently, the identifying information of the victim may be avoided in one area and not in another. Beyond this case, it is unknown if any local law enforcement agency actually uses the term “incest” when providing information to the public on the “type of sex crime.”

[¶ 37.] I would reverse the trial court and remand with direction for the trial court to grant the applicant’s writ of prohibition in part. The Chief of Police and Sheriff should not be prohibited from listing incest offenders on the Sex Offender Registry; however, they should be prohibited from publicly identifying the crime as “incest.”

[¶ 38.] SABERS, Justice, joins this dissent.

      . SDCL 22-22-40 contains both provisions. It provides:

        Registration records collected by local law enforcement agencies pursuant to this chapter, registration lists provided to local law enforcement by the Division of Criminal Investigation, and records collected by institutions pursuant to § 22-22-38 for those persons required to register under the provisions of §§ 22-22-30 to 22-22-39 are public records as provided in chapter 1-27. Nothing in this section allows the release of the name or any identifying information regarding the victim of the crime to any person other than law enforcement agencies, and such victim identifying information is confidential.
      (Emphasis added.)

      . After a 2003 amendment, the statute now requires the following information on the Registry:
      The registration shall include the following information:
      (1) Name and all aliases used;
      (2) Complete description, photographs, and fingerprints;
      (3) Residence, length of time at that residence, and length of time expected to remain at that residence;
      (4) The type of sex crime convicted of; and
      (5) The date of commission and the date of conviction of any sex crime committed;
      (6) Social Security number on a separate confidential form;
      (7) Driver license number and state of issuance;
      (8) Whether or not the registrant is receiving or has received any sex offender treatment;
      (9) Employer name, address, and phone number or school name, address, and phone number;
      (10) Length of employment or length of attendance at school; and
      (11) Occupation or vocation.
      Any failure to accurately provide the information required by this section is a Class 1 misdemeanor. SDCL 22-22-32 (2003) (emphasis added).

      . Applicant stresses that in this appeal she only challenges the public disclosure of registry information, while specifically disclaiming any challenge to an offender’s duty to register or the sharing of that information among government agencies or personnel.

      . SDCL 25-1-6 provides:
      Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, and between cousins of the half as well as of the whole blood, are null and void from the beginning, whether the relationship is legitimate or illegitimate. The relationships provided for in this section include such relationships that arise through adoption.

      . The dissent embarks upon this worthy attempt to enact a new requirement, not found in statute, which would allow publication of the offender's name, but not the type of sex crime, i.e. "incest.” Interestingly, at oral argument, Applicant's counsel believed that Applicant would be satisfied with such a compromise. However, Applicant specifically rejects this compromise in her petition for writ of prohibition.
      Applicant states:
      Nor is the excision of "incest" from the registry a remedy. This would apply, I am told, to only 8 of the 500 or so registrants on the current registry.... The absence of the "incest” listing would mean the absence of any identifying listing for that offender, while all other offenders would have offenses listed for them. This would by itself indicate that "incest” was the undisclosed offense. The only way to protect Applicant’s statutory ... rights is to delete the offender listings entirely, for those offenders (like the one involving Applicant as the victim) which lists "incest” as the lone offense.
      We should not, therefore, create a remedy that Applicant has specifically rejected. lt is also hard to accept the dissent’s justification for a new, court created exception for one type of sex offense. The dissent asserts its new requirement is justified because the "plain and ordinary” dictionary meaning of this type of sex offense, committed among family members, is known as "rape” or "sexual contact,” rather than incest. See infra ¶ 32. However, it is hard to imagine that any member of the Legislature, let alone the public, would categorize incest in those terms. It must finally be remembered that the dissent’s fashioning of a new exception requiring excision of "incest,” but no other type of sex crime, is an impermissible use of the extraordinary remedy of prohibition. A writ of prohibition "is preventive in nature rather than corrective.” Sioux Falls Argus Leader v. Miller, 2000 SD 63, ¶ 25, 610 N.W.2d 76, 87. Therefore, even if the Legislature has not provided "sufficient” protection for incest victims, the Legislature, rather than this Court, should correct the statutes to provide for the new remedy the dissent adopts. Fashioning new remedies is simply not the function of prohibition.

      . See SDCL 22-22-32(6) at n. 2, supra.

      . SDCL 22-22-31.4 provides:
      Any person who is subject to the provisions of § 22-22-31 shall annually reregister in the same manner as may be provided by law for initial registration. Such person shall reregister during the calendar month during which the registrant was born. However, if such person has previously registered pursuant to the provisions of § 22-22-31 within ninety days immediately prior to the date of such person’s birth, no subsequent reregistration is required pursuant to this section during the current annual reregistration cycle.
      A violation of this section is a Class 1 misdemeanor. However, any subsequent violation is a Class 6 felony.
      (Emphasis added).

      . The dissent concedes this point. It states that incest only identifies a limited class of victims that "could breach” confidentiality. See infra, ¶ 29. It also states that "identifying the crime as 'incest' significantly increases the risk of providing 'identifying information of the victim-' Infra ¶ 3 3.

      . Although Applicant raised an expectation of privacy claim below, she concedes that she "is not raising her constitutional claim [right to privacy] as an independent ground for reversal” in this appeal. Therefore, we do not address that issue. However, to the extent that Applicant does mention the privacy issue in her brief, it is without merit. The trial court concluded, and we agree, that Applicant "has no expectation of privacy in information that is readily available to the public.” See, e.g., Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494-95, 95 S.Ct. 1029, 1046, 43 L.Ed.2d 328, 349 (1975) (noting that “interests in privacy fade when the information involved already appears on the public record”); Nilson v. Layton City, 45 F.3d 369, 372 (10thCir.1995) (stating that “[(Information readily available to the public is not protected by the constitutional right to privacy”). The information Applicant seeks to protect is already in the public record in the offender’s criminal file ' maintained by the clerk of courts. See supra ¶ 6.

      . SDCL 22-22-30 provides:
      For the purposes of §§ 22-22-31 to 22-22-39, inclusive, a sex crime is any of the following crimes regardless of the date of the commission of the offense or the date of conviction:
      (1) Rape as set forth in § 22-22-1;
      (2) Sexual contact with a minor under sixteen as set forth in § 22-22-7 if committed by an adult and the adult is convicted of a felony;
      (3) Sexual contact with a person incapable of consenting as set forth in § 22-22-7.2 if committed by an adult;
      (4) Incest as set forth in § 22-22-19.1 if committed by an adult;
      (5) Possessing, manufacturing, or distributing child pornography as set forth in § 22-22-24.2;
      (6) Sale of child pornography as set forth in § 22-22-24;
      (7) Sexual exploitation of a minor as set forth in § 22-22-24.3;
      (8) Kidnapping, as set forth in § 22-19-1, if the victim of the criminal act is a minor;
      (9) Promotion of prostitution of a minor as set forth in subdivision 22-23-2(2);
      (10) Criminal pedophilia as set forth in § 22-22-30.1;
      (11) Felony indecent exposure as set forth in former § 22-24-1 or indecent exposure as set forth in § 22-24-1.2;
      (12) Solicitation of a minor as set forth in § 22-22-24.5;
      (13) Felony aggravated indecent exposure as set forth in § 22-24-1.3;
      (14) Bestiality as set forth in § 22-22-42;
      (15) An attempt to commit any of the crimes listed in this section;
      (16) Any crime committed in a place other than this state which would constitute a sex crime under this section if committed in this state;
      (17) Any federal crime or court martial that would constitute a sex crime under federal law; or
      (18) Any crime committed in another state if that state also requires that anyone convicted of that crime register as a sex offender in that state.

      . SDCL 22-22-1 defines Rape:
      Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:
      (1) If the victim is less than ten years of age; or
      (2) Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution; or
      (3) If the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or
      (4) If the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis; or
      (5) If the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim; or
      (6) If persons who are not legally married and who are within degrees of consanguinity within which marriages are by the laws of this state declared void pursuant to § 25-1-6, which is also defined as incest; or
      (7) If the victim is ten years of age but less than eighteen years of age and is the child of a spouse or former spouse of the perpetrator.
      A violation of subdivision (1) of this section is rape in the first degree, which is a Class 1 felony. A violation of subdivision (2), (3), or (4) of this section is rape in the second degree, which is a Class 2 felony. A violation of subdivision (5), (6), or (7) of this section is rape in the third degree, which is a Class 3 felony. Notwithstanding § 23A-42-2 a charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.

      . SDCL 22-22-32 lists the information required:
      The registration shall include the following information:
      (1) Name and all aliases used;
      (2) Complete description, photographs, and fingerprints;
      (3) Residence, length of time at that residence, and length of time expected to remain at that residence;
      (4) The type of sex crime convicted of; and
      (5) The date of commission and the date of conviction of any sex crime committed;
      (6) Social Security number on a separate confidential form;
      (7) Driver license number and state of issuance;
      (8) Whether or not the registrant is receiving or has received any sex offender treatment;
      (9) Employer name, address, and phone number or school name, address, and phone number;
      (10) Length of employment or length of attendance at school; and
      (11) Occupation or vocation.

        Any failure to accurately provide the information required by this section is a Class 1 misdemeanor.

      . A Sioux Falls police detective in charge of the sex registry for Minnehaha County identified six registered sex offenders who had been convicted of incest.


author: GILBERTSON, Chief Justice.

text:
    2004 SD 97
    In the Matter of the Alcohol Beverage License Suspension of Tim M. ENGELS, d/b/a Harbor Bar, Watertown, SD License Nos. RB-3633 and RL-6048.
    No. 22865.
    Supreme Court of South Dakota.
    Argued Jan. 14, 2004.
    Decided Aug. 25, 2004.
    Rehearing Denied Sept. 27, 2004.

      David R. Strait of Austin, Hinderaker, Hopper, Strait & Bratland, Watertown, South Dakota, for appellant Engels.
    Michael T. Kenyon, SD Department of Revenue, Pierre, South Dakota, for appel-lee SD Department of Revenue.
   GILBERTSON, Chief Justice.

[¶ 1.] Tim M. Engels, owner and operator of the Harbor Bar, appeals an order of the circuit court affirming the South Dakota Department of Revenue’s (Department) decision to suspend his alcoholic beverage licenses for a period of fourteen days. The suspension was the result of a violation that occurred on September 27, 2000, when a Harbor Bar employee sold an alcoholic beverage to a minor. On appeal, Engels maintains that the 2003 version of SDCL 35-2-10.1 should apply retroactively to his violation. Next, he argues that it was impossible for him to comply with the statute, or alternatively, that he substantially complied with the statute. Finally, Engels believes the Department abused its discretion when it decided to suspend his liquor license for fourteen days. We reverse.

FACTS AND PROCEDURE

[¶ 2.] The facts in this ease are relatively straightforward. Engels owns and operates the Harbor Bar in Watertown, South Dakota, The Harbor Bar holds both a retail- beer license and a retail liquor license. On September 27, 2000, Russ Farley, a Harbor Bar employee, sold an alcoholic beverage to person under the age of twenty-one. This underage individual worked for a company under contract with the South Dakota Department of Commerce and Regulation to conduct sting operations in order to ensure compliance with the state’s alcohol sales laws.

[¶ 3.] At the time of the illegal sale, Farley had not completed an alcohol-training program approved by the Department. Farley was registered to take the South Dakota Retail Liquor Dealers TAM (Techniques of Alcohol Management) class on October 4, 2000, and he had previously signed an agreement with the Harbor Bar in which he agreed to check the identification of anyone who might be under the age of twenty-one.

[¶ 4.] As a result of this illegal sale and pursuant to SDCL 35-2-10, the Department entered an order suspending Engels’ alcoholic beverage licenses for a'period of fourteen days. The Department upheld its decision after Engels requested an administrative hearing. Engels appealed the Department’s decision to circuit court. This appeal resulted in a remand for a second administrative hearing, whereupon the Department once again upheld the fourteen day suspension of his alcoholic beverage licenses.

[¶ 5.] Engels proceeded to file a second notice of appeal in circuit court. At the circuit court, Engels árgúed SDCL 35-2-10.1, a safe harbor statute, should apply and prevent any suspension of his licenses. Specifically, Engels contended that it was impossible for him to comply with SDCL 35-2-10.1(2) at the time of the illegal sale because no Department approved alcohol-training classes were available in Water-town before October 4, 2000. Engels also maintained that he substantially complied with SDCL 35-2-10.1(2) when he registered Farley for the TAM class to be held on October 4, 2000. Alternatively, Engels claimed that a 2003 amendment to SDCL 35-2-10.1 should be applied retroactively in order to bar the Department from suspending his alcoholic beverage licenses.

[¶ 6.] The circuit court upheld the Department’s suspension of Engels’ liquor licenses. He now appeals and raises the following issues for our review:

1.Whether the 2003 version of SDCL 35-2-10.1 applies retroactively to this case and thereby prohibits the suspension of Engels’ liquor licenses.
2. Whether SDCL 35-2-10.1(2) was unconstitutional as applied to Engels because of the doctrine of impossibility.
4. Whether the South Dakota Department of Revenue abused its discretion when it suspended Engels’ alcohol licenses for fourteen days.

STANDARD OF REVIEW

[¶ 7.] The case before us presents questions of both a legal and factual nature. We review questions of law under the de novo standard. Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612 N.W.2d 600, 611. As this case concerns a liquor-licensing statute, we follow the general rule that such statutes “are strictly construed against the licensee.” In the Matter of the Alcohol Beverage License Suspension of Cork ‘N Bottle, Inc., 2002 SD 139, ¶ 8, 654 N.W.2d 432, 434. We give great deference to an administrative agency’s findings of fact. SDCL 1-26-36; Goebel v. Warner Transp., 2000 SD 79, ¶ 10, 612 N.W.2d 18, 21 (citation omitted). Thus, we will only reverse an agency’s findings of fact if after a thorough review of the entire record we believe the findings to be clearly erroneous. Id.

ANALYSIS AND DECISION

[¶ 8.] 1. Whether the 2003 version of SDCL 35-2-10.1 applies retroactively to this case and thereby prohibits the suspension of Engels’ liquor licenses.

[¶ 9.] The Department of Revenue administers the state’s alcoholic beverage laws. SDCL 35-1-2. Under the South Dakota statutory scheme in effect at the time of the violation, the Department was authorized to suspend Engels’ alcoholic beverage licenses because his employee, Farley, had not completed a Department approved alcohol training class when he committed the violation. SDCL 35-2-10.1 (2000 version). Pursuant to this authority, the Department suspended Engels’ liquor licenses for fourteen days. Under the amended statute, however, where an employee sells alcohol to a person under twenty-one and has not completed the requisite training course, the Department may impose a fine of $1,000 for the first offense and $2,000 for the second offense. SDCL 35-2-10.1 (2003 version). The amended version of the statute does not authorize the Department to suspend a licensee’s alcoholic beverage license in such a situation. Id.

[¶ 10.] On appeal, Engels, contends that we should apply the amended version of SDCL 35-2-10.1 and hold that the Department lacks the authority to suspend his liquor licenses. Generally, “newly enacted statutes will not be given a retroactive effect unless such an intention is plainly expressed by the legislature.” Dahl v. Sittner, 474 N.W.2d 897, 901 (S.D.1991); SDCL 2-14-21. We have recognized, however, that “statutes which affect only procedural matters, as opposed to substantive rights” should be given retroactive effect. Dahl, 474 N.W.2d at 901; Tischler v. United Parcel Service, 1996 SD 98, ¶ 71, 552 N.W.2d 597, 608.

[¶ 11.] The amended version of SDCL 35-2-10.1 clearly does not contain express language directing its retroactive application. Therefore, in order to function retroactively, the statutory change must be deemed to have procedural rather than substantive effect. Tischler, 1996 SD 98, ¶ 71, 552 N.W.2d at 608. Here, the Legislature revoked the Department’s power to suspend liquor licenses for the type of violation at issue in this case and substituted the authority to impose civil fines. Thus, our operative inquiry is whether the penalty dictated by SDCL 35-2-10.1 for selling alcohol to an individual under the age of twenty-one is substantive or procedural in nature.

[¶ 12.] Engels maintains that SDCL 35-2-10.1 is solely remedial in nature, and he cites Tischler for the proposition that “[statutes affecting remedies” should, be given retroactive effect. 1996 SD 98, ¶ 72, 552 N.W.2d at 608. In Tischler, we defined remedial statutes as those statutes “that describe methods for enforcing, processing, administering, or determining rights, liabilities, or status.” Id. On the other hand, “[a] law is substantive- if it creates rights, duties, and obligations.” 2 Sutherland, Statutes and Statutory Construction, § 41.09 (6th Ed 2001). After reviewing the statute in question and considering the nature of liquor licenses, we believe the penalty provision at issue in this case to be substantive rather than procedural.

[¶ 13.] In Rushmore State Bank v. Ku-rylas, Inc., this Court explored the status of liquor licenses in South Dakota. 424 N.W.2d 649 (S.D.1988) (holding, inter alia, that a creditor may take a security interest in a licensee’s liquor license). In Kurylas, we concluded that “as between the state and a licensee, there exists no [general] property right in the license but merely a privilege to conduct that state regulated business.” Id., 424 N.W.2d at 653. We specifically recognized the ‘commercial reality’ that a liquor license is frequently the most valuable asset” an establishment can own. Id. at 655. Thus, although not a general property right, we acknowledged that a liquor license is a privilege that the State may not revoke without the fundamental due process guarantees of notice and a hearing. Id. at 653.

[¶ 14.] Under the statutory scheme in effect at the time of Engels’ violation, the Department was authorized to suspend his alcoholic beverage licenses for two weeks. Rather than merely describing a method of enforcing the privilege, this power to suspend or revoke a license affected the very nature of the privilege, for without a liquor license, a licensee lacks the authority to sell alcoholic beverages in South Dakota. In other words, the Department’s authority to revoke liquor licenses was not merely a procedural function, but was the power to affect the substance of the license itself. After the 2003 amendment, the Department would not be able to suspend Engels’ alcoholic beverage licenses in this particular situation because the Harbor Bar was not cited for a similar violation in the previous twenty-four months. This was a substantive change to the statute that changed the nature of the privilege because it may no longer be suspended under similar facts.

[¶ 15.] In sum, when the Legislature amended the penalty described in SDCL 35-2-10.1 in 2003, it modified the actual substance of liquor licenses as opposed to changing a procedure designed to administer such a privilege. The statute does not specifically allow for retroactive application, and because it affects substantive rights rather than procedural rights, we hold that the statute does not have retroactive affect. Therefore, the 2000 version of the statute applied, and the Department had the authority to suspend Engels’ alcoholic beverage licenses.

[¶ 16.] 2. Whether SDCL 35-2-10.1(2) was unconstitutional as applied to Engels because of the doctrine of impossibility.

[¶ 17.] As explained above, the 2000 version of SDCL 35-2-10.1 applied to Engels’ violation. Often described as a safe harbor statute, it prevented the suspension of a licensee’s alcoholic beverage as long as the licensee’s employee committed the violation, and the licensee satisfied five additional criteria listed in the statute. Here, the criterion at issue concerns the requirement that the employee who committed the violation “has been certified by a nationally recognized training program approved by the Department.” SDCL 35-2-10.1(2).

[¶ 18.] Engels complied with each requirement found in the safe harbor statute except for SDCL 35-2-10.1(2). Farley, the employee who made the illegal sale, was not certified by a Department approved alcohol training program on September 27, 2000, the date of the violation. Engels maintains that he did everything he possibly could to get his employee certified, including registering Farley for a Department approved TAM class to be held in Watertown on October 4, 2000. Engels claims that it was impossible for him to comply with this requirement and, therefore, this part of the statute was unconstitutional as applied to him. In support of his argument, he cites Jewett Bros. & Jewett v. Smail, 20 S.D. 232, 243-44,105 N.W. 738, 741 (1905) for the proposition that the right to due process is violated when compliance with a statute is practically impossible.

[¶ 19.] Although couched in terms of a constitutional challenge to SDCL 35-2-10.1(2), Engels’ impossibility claim is essentially a factual question of whether it was possible for Farley to have completed a Department approved program before he committed the violation. The hearing examiner and circuit court both determined that Engels had the opportunity to comply with SDCL 35-2-10.1(2), and we employ the clearly erroneous standard of review to these findings. SDCL 1-26-36; Goebel, 2000 SD 79, ¶ 10, 612 N.W.2d at 21.

[¶ 20.] Specifically, the administrative law judge found that the South Dakota Petroleum Marketers “We Card” program conducted six training classes prior to July 1, 2000. The ‘We Card” program offered these classes in Watertown, Sioux Falls, Mitchell, Aberdeen, Pierre, and Rapid City. The circuit court relied upon a document, labeled Exhibit 11, offered into evidence by the Department purporting to show that the South Dakota Retailer’s Association offered a TAM class in Water-town on June 28, 2000, and in nearby cities throughout June 2000. According to this document, the South Dakota Retail Liquor Dealer’s Association also conducted TAM classes in the surrounding area between May and September, 2000. Engels vigorously disputes these findings.

[¶ 21.] At the December 12, 2001 administrative hearing, Paul Kinsman, the Director of Property and Special Taxes for the Department testified on its behalf. He testified that in the Watertown area, the only class which had been approved by the Department at the time it was being offered was not scheduled to commence until October 4, 2000. As Engels points out, the previous classes identified by the administrative law judge were only approved retroactively by the Department, and, therefore, it did not make sense for his employees to attend classes that were not Department approved at the time they were offered. Attending such classes was described by Kinsman as “rolling dice” in hopes that the class would be retroactively approved after it was given.

[¶ 22.] Ordinarily, “[c]lear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25. In this instance, however, we are essentially faced with error per se because there is simply nothing in the record upon which to make a finding that Engels had notice concerning programs which were Department approved before they were offered prior to the October 4, 2000 class. The evidence of the Department’s witness is to the contrary.

[¶ 23.] 3. Whether Engels substantially complied with SDCL 35-2-10.1(2) when he registered his employee for a TAM class to be held in Watertown on October 4, 2000.

And,

[¶ 24.] 4. Whether the South Dakota Department of Revenue abused its discretion when it suspended Engels’ alcohol licenses for fourteen days.

[¶ 25.] Based upon our resolution of Issue 2, we do not reach Engels’ final two claims on this appeal.

[¶ 26.] Reversed.

[¶ 27.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Prior to its amendment in 2003, SDCL 35-2-10.1 provided;
      No retail license may be revoked or suspended because of a violation of any statute, ordinance, rule, or regulation prohibiting the sale or service of any alcoholic beverage to a person under the age of twenty-one years if the violation was committed by an employee or agent of the licensee and:
      (1) The licensee did not see the violation occur;
      (2) The employee or agent has been certified by a nationally recognized training program approved by the Department of Revenue that provides instruction on techniques to prevent persons under the age of twenty-one years from purchasing or consuming alcoholic beverages;
      (3) The licensee has a written policy requiring the licensee's employees or agents to examine the driver's license or other age-bearing identification document of any person who appears to be under the age of twenty-one years before selling or serving any alcoholic beverage to that person, and the employee or agent has agreed in writing to abide by the policy;
      (4) The employee or agent has not been convicted of a similar violation within the past twelve months; and
      (5) The licensee has not had any prior violation of any statute, ordinance, rule, or regulation prohibiting the sale or service of an alcoholic beverage to a person under the age of twenty-one years on the premise where the violation occurred in the previous twelve months.

      . Effective July 1, 2003, the South Dakota Legislature amended SDCL 35-2-10.1 to read:
      No retail license may be revoked or suspended because of a violation of any statute, ordinance, rule, or regulation prohibiting the sale or service of any alcoholic beverage to a person under the age of twenty-one years if the violation was committed by an employee or agent of the licensee and the licensee has not had more than two violations of any statute, ordinance, rule, or regulation prohibiting the sale or service of an alcoholic beverage to a person under the age of twenty-one years on the premises where the violation occurred in the previous twenty-four months.
      If the licensee meets the requirements of the conditions provided by this section, the secretary shall impose a civil penalty of five hundred dollars for a first violation and one thousand dollars for a second violation. However, if the employee or agent has not been certified by a nationally recognized training program approved by the Department of Revenue that provides instruction on techniques to prevent persons under the age of twenty-one years from purchasing or consuming alcoholic beverages, the secretary shall impose a civil penalty of one thousand dollars for a first violation and two thousand dollars for a second violation.
      A licensee may request an administrative hearing pursuant to chapter 1-26 to contest the imposition of a civil penalty.

      . We also note that Jewett, a decision affirming an injunction against a statute because of its unreasonable interference with interstate commerce, does not address the doctrine of impossibility.

      . Although the Department contends Engels had notice of which classes were approved and the opportunity to attend those classes, it admitted several times at oral argument before this Court that there is nothing in the record to support this assertion.