author: GILBERTSON, Chief Justice.

text:
    2005 SD 34
    T. Denny SANFORD, Plaintiff and Appellee, v. Colleen Anderson SANFORD, Defendant and Appellant.
    Nos. 23175, 23183 and 23197.
    Supreme Court of South Dakota.
    Argued Jan. 11, 2005.
    Decided March 9, 2005.
    Rehearing Denied April 14, 2005.

      Edwin E. Evans, Mark F. Marshall, Mitchell A. Peterson of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and appellee.
    Thomas J. Welk, Lisa Hansen Marso of Boyce, Greenfield, Pashby & Welk, Sioux Falls, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] T. Denny Sanford filed for divorce from his wife Colleen Anderson Sanford, and sought enforcement of a prenuptial agreement. The prenuptial agreement purported to waive all of Colleen’s alimony rights and provided for a single payment structure for alimony, support and property provisions.

[¶ 2.] On competing motions for summary judgment, the circuit court held the single prenuptial agreement provision purporting to waive alimony was void and unenforceable. The circuit court also held the agreement was not unconscionable as to the property provisions, and that the void alimony and support provision could be severed from the remainder of the agreement. Colleen appealed contending the entire agreement was void as the alimony provision could not be severed from the property provisions. Colleen also contended that the entire agreement was unconscionable. Denny filed a notice of review claiming the entire document was valid and enforceable. We affirm.

FACTS AND PROCEDURE

[¶ 3.] Colleen Anderson Sanford and T. Denny Sanford met in Sioux Falls, South Dakota, in 1987 while Colleen was visiting family. At that time, Colleen was living in Indianapolis, Indiana, and was approximately thirty-six years of age. Colleen had previously been gainfully employed as a dental assistant for eleven years, and then had co-owned a home accessory and gift business for eight years. Denny was fifty-two years of age at the time the two met, and had been divorced from his first wife for approximately five years. The two began a romantic relationship and eventually Denny asked Colleen to live with him, and stop working in order to be available to travel with him. Colleen declined an entry-level position with a financial planning firm in Indianapolis and at Denny’s request moved to Minneapolis, Minnesota, in order to further the relationship. The couple signed a nonmarital partnership agreement in 1990. After living together for approximately eight years, the two decided to marry. The marriage was the first for Colleen and the second marriage for Denny. Denny had two grown children from a prior marriage, while Colleen had no children. The parties had no children during the marriage.

[¶ 4.] The parties executed a prenuptial agreement dated August 15,1995, that was drafted by Denny’s attorney. Colleen was represented by her own attorney. Each party attached financial disclosures to the agreement that showed a net worth of approximately $55 million dollars for Denny and a net worth of approximately $127,500 for Colleen.

[¶ 5.] Denny’s financial disclosure statement was prepared in June 1995 using April 1995 valuations. The statement was not shared with Colleen or her attorney until August 15, 1995, after the wedding invitations had been mailed and two receptions had been planned and scheduled. The agreement was signed the next day, on August 16, 1995. In depositions, Denny admitted a bookkeeper prepared the financial disclosure statement. Colleen and Denny were married on September 23, 1995.

[¶ 6.] The prenuptial agreement provided in part:

Each party has had a full and satisfactory opportunity to inspect, reflect upon, and appraise the property of the other so that each is satisfied that he/she fully understands and appreciates the nature and value of the property of the other and the likelihood of its increasing or decreasing after the date hereof.

The agreement further provided that:

In the event of termination of the marriage between the parties, whether by annulment, divorce or otherwise, Denny agrees that he shall pay to Colleen the sum of One Hundred Forty-four Thousand and No/100 Dollars ($144,000.00) in thirty-six (36) equal installments of Four Thousand and No/100 Dollars ($4,000.00), payable on the first business day of the month following termination of the parties’ marriage. If Colleen institutes an action for annulment or divorce and is awarded a decree of annulment or divorce from Denny, she shall be entitled to payments set forth above for a period not to exceed three (3) years from the date of commencement of such action. These payments shall cease in the event of Colleen’s death or remarriage or cohabitation with an adult male to whom she is not married. The parties expressly agree that Colleen shall make no other claim against Denny in the event of dissolution of the marriage for any reason in the nature of support, alimony, property settlement or otherwise.

[¶ 7.] The agreement also provided that in the event that Denny should institute action for divorce or annulment and be awarded a decree of annulment or divorce from Colleen, he would be required to make the above payments to Colleen for no more than three years, and provide her with a condominium at Westward Ho Townhomes in Sioux Falls. In the event Colleen initiated such action, she would be entitled to remain in the marital residence following the grant of the annulment or dissolution for “a period of six (6) months plus one (1) year for each full year that the parties shall have been married prior to such action.”

[¶ 8.] Denny filed a petition for divorce on January 28, 2003. Colleen filed an answer and counterclaim, alleging adultery and extreme cruelty. Denny moved for summary judgment on the issue of the validity and enforceability of the prenuptial agreement as to both the property settlement and spousal support provisions. Colleen moved for partial summary judgment, arguing the prenuptial agreement was invalid and unenforceable both as to property and spousal support.

[¶ 9.] The circuit court held the prenuptial agreement provision purporting to waive alimony was void and unenforceable. The circuit court also held the agreement was not unconscionable as to the property provisions, and that the property provisions could be severed from the invalid portions of the agreement.

[¶ 10.] Colleen and Denny both appeal. Their issues can be addressed as follows:

1. Whether a prenuptial agreement that provides, under its terms, a single payment structure for all support, alimony and property obligations is void and unenforceable as to both property and alimony.
2. Whether the circuit court erred when it concluded the property settlement portion of the prenuptial agreement was not unconscionable.

STANDARD OF REVIEW

[¶ 11.] Summary judgment is authorized when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15 — 6—56(c). We will affirm the circuit court only when there are no genuine issues of material fact and the legal questions have been correctly decided. Titus v. Chapman, 2004 SD 106, ¶ 13, 687 N.W.2d 918, 923 (citing Holzer v. Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791) (additional citations omitted). All reasonable inferences drawn are viewed in favor of the non-moving party. Id. (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990)). The moving party has the burden to clearly show the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Id.

[¶ 12.] The construction and interpretation of a contract is a question of law. Prudential Kahler Realtors v. Schmitendorf, 2003 SD 148, ¶ 7, 673 N.W.2d 663, 665 (citing Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶ 10, 604 N.W.2d 289, 292) (citations omitted). Likewise, the construction and interpretation of a statute is a question of law. Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480). We review question of law under the de novo standard. Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 8, 545 N.W.2d 834, 836 (citing Stang v. Meade Sch. Dist., 526 N.W.2d 496, 498 (S.D.1995)).

[¶ 13.] Statutory construction is used to discover the true intent of the legislature in enacting laws, which is ascertained primarily from the language employed in the statute. State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). We give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject. State v. I-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290 (citing Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611) (additional citations omitted).

ANALYSIS AND DECISION

[¶ 14.] 1. Whether a prenuptial agreement that provides, under its terms, a single payment structure for all support, alimony and property obligations is void and unenforceable as to both property and alimony.

[¶ 15.] This Court previously held in Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978), that provisions in a prenuptial agreement purporting to limit alimony obligations are against public policy and therefore not enforceable. In that case, the parties entered into a prenuptial agreement that purported to relinquish and release the other “from any and all claims of support and of any and all interest in the property of the other” except as provided by the agreement. Id. at 45. The agreement provided one single payment vehicle in the event of a divorce or legal separation: an annuity for the benefit of the wife in an amount designed to yield income equal to the benefits the wife would have received from her widow’s pension, which she forfeited by marrying Mr. Connolly. Id.

[¶ 16.] Our opinion in Connolly reiterated the validity of the public policy underlying South Dakota’s domestic relations code, that while parties may enter into a valid support agreement in contemplation of divorce, the trial court has the ultimate authority to approve or reject a spousal support agreement in a divorce proceeding. Id. at 47. We noted that “[t]he same principle should be applied even more strictly in an antenuptial setting, where as pointed out in the Gudenkauf case, conditions which affect a spouse’s entitlement to alimony cannot accurately be foreseen.” Id. (citing In re Marriage of Gudenkauf, 204 N.W.2d 586, 587 (IA 1973)) (internal citation omitted). Additionally, we invalidated the prenuptial agreement in that case “... to insure that the public’s interest in the enforcement of [one spouse’s] duty to support [the other spouse] is not thwarted by antenuptial agreements that bear no reasonable relationship to the subsequent situation of the parties.” Id. at 47. In that case, the portion of the prenuptial agreement that sought to limit the wife’s support rights was severed, and the single payment structure was retained for purposes of the property rights. Id. at 48.

[¶ 17.] In 1989, twelve years after Connolly, the South Dakota legislature adopted portions of the Uniform Premarital Agreement Act (UPAA) as SDCL 25-2-16 to 25-2-26. Under South Dakota law, a premarital agreement must be in writing and signed by both parties, and is enforceable without consideration. SDCL 25-2-17. SDCL 25-2-18, the code provision specific to prenuptial agreements, provides:

(a) Parties to a premarital agreement may contract with respect to:
(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(5) The ownership rights in and disposition of the death benefit from a life insurance policy;
(6) The choice of law governing the construction of the agreement; and
(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.

[¶ 18.] The South Dakota legislature did not include portions of the UPAA relating to spousal support. Specifically, the Legislature did not enact those portions of the UPAA that allowed parties to a prenuptial agreement to contract with respect to “the modification or elimination of spousal support.” The Minutes of the House Judiciary Committee meeting of February 7, 1989, indicate that this provision of the UPAA was eliminated from House Bill 1328 before its approval by the committee and its eventual enactment as SL 1989, ch. 216, § 3.

[¶ 19.] The primary sources for declarations of public policy in South Dakota are the state constitution, statutes and case law. SDCL 1-1-23; Niesent v. Homestake Mining Co., 505 N.W.2d 781, 783 (S.D.1993) (citations omitted). We presume the Legislature acts with knowledge of our judicial decisions. See In re State Highway Comm’n v. Wieczorek, 248 N.W.2d 369, 372 (S.D.1976). The Legislature knows how to include and exclude specific items in its statutes. State v. Young, 2001 SD 76, ¶ 12, 630 N.W.2d 85, 89 (citing Therkildsen, 1996 SD 39, ¶ 10, 545 N.W.2d at 836; Jasper v. Smith, 540 N.W.2d 399, 403 (S.D.1995); Sander v. Geib, Elston, Frost Pro. Ass’n, 506 N.W.2d 107, 124 (S.D.1993)).

[¶ 20.] We must presume the Legislature acted purposefully when it enacted SDCL 25-2-18 and excluded spousal support rights from the list of enumerated subject matter upon which parties to a prenuptial agreement may legally contract. Equally so, we must presume when the Legislature adopted portions of the UPAA as SDCL 25-2-18, it proceeded with awareness of our severability analysis in Connolly and did not act to change it.

[¶ 21.] Denny argues that under SDCL 25-2-18(a)(7), alimony rights are a proper subject matter for a prenuptial agreement. Denny argues this Court should overrule Connolly v. Connolly as that case’s supposition, that prenuptial agreements will be abused by men and that women will be exploited, no longer fits with the values and roles of women in today’s society.

[¶ 22.] Denny’s argument fails to recognize that the public policy underlying Connolly was meant to apply equally to the husband or the wife depending on the circumstances of the parties in any particular case. The Connolly opinion is not an antiquated, paternalistic attempt to protect women. Instead, it protects the support rights of both men and women who may be asked to sign away those rights in contemplation of marriage. Although much has been written on the subject, it still bases itself on SDCL 25^4-41, which is an ongoing authorization by the Legislature to the courts to award “support ... as the court may deem just.” That statutory mandate, until repealed by the Legislature, cannot go out of vogue. This issue is a question of statutory construction and cannot be changed by any other method. The sole authority to “modernize” our statutes by amendment belongs to our Legislature.

[¶ 23.] This is not the first time this Court has been invited to “modernize” the law of South Dakota concerning the legal relationships between individuals who are involved in a marriage that is in the process of failing. In Veeder v. Kennedy, 1999 SD 23, 589 N.W.2d 610, we were asked to abolish the tort of alienation of affections as it had been abolished in a large majority of the states. The tort had been viewed by Justices of this Court in a previous case as “[an] archaic holdover[] from an era when wives were considered the chattel of their spouse.” Id. ¶ 17, 589 N.W.2d at 615 (quoting Hunt v. Hunt, 309 N.W.2d 818, 821 (S.D.1981)). However, in Veeder we declined to abolish this tort as its source was a statute, not case law:

The “public policy” argument of Kennedy cannot be supported by our system of law. SDCL 1-1-23 states that the sovereign power is expressed by the statutes enacted by the legislature. SDCL 20-9-7 which authorizes Michael’s cause of action in this case is such a statute. Under SDCL 1-1-24 the common law and thus an abrogation of the common law are in force except where they conflict with the statutory will of the legislature as expressed by SDCL 1-1-23. We are unable to locate a single case in this jurisdiction where this Court has struck down a statute as a violation of public policy. As no constitutional defects are claimed by Kennedy, we are compelled to leave the cause of action intact and instead defer to the legislature’s ability to decide if there is a need for its elimination. “[W]e are not legislative overlords empowered to eliminate laws whenever we surmise they are no longer relevant or necessary.”

Veeder, 1999 SD 23, ¶23, 589 N.W.2d at 616 (quoting In re Certification of Questions of Law (Knowles), 1996 SD 10, ¶ 66, 544 N.W.2d 183, 197).

[¶ 24.] Moreover, Denny’s “modernization” argument fails to consider the numerous types of alimony that exist in this State and the diverse reasons for their award. Perhaps the most well-known is permanent alimony. Although its specifics are determined by the facts of the case, common to it are payments which continue until death of the recipient or some other significant event such as remarriage, which terminates the need for the continuing support. Its basis is that the law makes provision for a spouse out of the estate of the other spouse after separation in lieu of the common law obligation to support the spouse had the marriage continued. Guinter v. Guinter, 72 S.D. 554, 557, 37 N.W.2d 452, 453 (1949). Secondly, there is lump sum alimony, which is in many respects similar to a property division. See Saxvik v. Saxvik, 1996 SD 18, ¶ 13, 544 N.W.2d 177, 180. However, it differs in that it may be based in part upon a consideration of fault. Clarke v. Clarke, 478 N.W.2d 834, 837 (S.D.1992) (citations omitted). A third type of alimony is restitu-tional or reimbursement alimony, which “has as its purpose to reimburse one spouse’s contribution during the marriage to advance training or education of the other spouse.” Saxvik, 1996 SD 18, ¶ 13, 544 N.W.2d at 180 (citing Parsons v. Parsons, 490 N.W.2d 733, 735 (S.D.1992); Wilson v. Wilson, 434 N.W.2d 742, 745 (S.D.1989)). There is also rehabilitative alimony, which “is designed to permit a spouse the means necessary to enable the spouse to refresh or enhance job skills necessary to become self-sufficient, and provide needed financial support.” Id. ¶ 14 (citing Johnson v. Johnson, 471 N.W.2d 156, 163 (S.D.1991); Hautala v. Hautala, 417 N.W.2d 879, 882 (S.D.1988)). Finally, some types of alimony may allow future modification which “is predicated on the belief that a trial court cannot foresee all circumstances which may arise after the original decree is entered.” Foley v. Foley, 429 N.W.2d 42, 46 (S.D.1988).

[¶ 25.] Unlike alimony and support rights, property rights are a proper subject matter for a prenuptial agreement. SDCL 25-2-18. However, as noted previously, a prenuptial agreement that purports to waive alimony and support and makes a distribution of property will not be enforceable as to the portion of the agreement that waived alimony and support. Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶ 3, 575 N.W.2d 457, 458 (citing Connolly, 270 N.W.2d at 46). Those portions of a prenuptial agreement that are valid will be enforced despite the presence of invalid provisions within the agreement. Connolly, 270 N.W.2d at 47-48. This comports with the presumption under South Dakota law “that a written agreement proclaims the ultimate intention of the parties.” Roth v. Roth, 1997 SD 75, ¶ 17, 565 N.W.2d 782, 786 (citing Carr v. Benike, Inc., 365 N.W.2d 4, 6 (S.D.1985)).

[¶ 26.] Colleen argues that portions of prenuptial contracts are separable or divisible only when the requirements of Thunderstik Lodge, Inc. v. Reuer, 2000 SD 84, 613 N.W.2d 44, are met. In that ease we held the requirements of a severable agreement are: “(1) the parties’ performance must be separable into corresponding pairs of part performances and (2) the parts of each pair must be regarded as agreed equivalents.” Id., 2000 SD 84, ¶ 7, 613 N.W.2d at 46 (citing Commercial Trust and Sav. Bank v. Christensen, 535 N.W.2d 853, 857 (S.D.1995)). Two additional conditions are generally required, “the agreement must not be an integrated scheme to contravene public policy,” and “the party seeking enforcement must not have engaged in serious misconduct.” Id. (quoting Commercial Trust and Sav. Bank, 535 N.W.2d at 857 (citing E. Allen Farnsworth, Contracts, § 5.8, at 382 (2d ed. 1990); Restatement (Second) of Contracts § 183 (1979))). Serious misconduct in the context of severability is judged at the time of the contract formation. See Thunderstik Lodge, Inc., 2000 SD 84, ¶ 12, 613 N.W.2d at 47-48 (noting that the conduct complained of was not illegal as the parties sought to create an agreement to access lands for hunting, not to create an illegal agricultural lease).

[¶ 27.] Colleen argues that the prenuptial agreement is not severable because it does not meet the part performance requirements in Thunderstik, as the alimony provision and property provisions are too intertwined. Colleen contends that Denny attempted to contravene public policy by including the alimony waiver in the prenuptial agreement. Colleen also argues that Denny’s serious misconduct during the marriage precludes severance of the prenuptial agreement by this Court.

[¶ 28.] In Thunderstik, the Court was asked to determine the validity of a lease agreement for hunting lands, a subject completely unrelated to prenuptial agreements. See Thunderstik, 2000 SD 84, ¶ 2, 613 N.W.2d at 44. As noted above, Connolly controls when the issue involves the severability of a prenuptial agreement that includes a void attempt to waive spousal support rights, not Thunderstik.

[¶ 29.] Even if we were to apply general contract principles as we did in Thunder-stik, the result does not change. Our holding in Thunderstik is based on the language of SDCL 53-5-4, which provides: “[w]here a contract has several distinct objects, one or more of which are lawful and one or more of which are unlawful in whole or in part, the contract is void as to the latter and valid as to the rest.” Its application in that holding was based on Restatement (Second) Contracts § 183, which pertains to severability when “the parties’ performances cm be apportioned into corresponding pairs of part performance so that the parts of each pair are properly regarded as agreed equivalents[.]” (emphasis added). However, we have not had occasion to address the matter when performance cannot “be apportioned into corresponding agreed equivalents.”

[¶ 30.] Other jurisdictions that have considered the matter of severability when the equivalent corresponding pairs requirement of Restatement (Second) Contracts § 183 cannot be met have looked to Restatement Second of Contracts § 184, which provides:

(1) If less than all of an agreement is unenforceable under the rule stated in § 178, a court may nevertheless enforce the rest of the agreement in favor of a party who did not engage in serious misconduct if the perform-anee as to which the agreement is unenforceable is not an essential part of the agreed exchange.
(2) A court may treat only part of a term as unenforceable under the rule stated in Subsection (1) if the party who seeks to enforce the term obtained it in good faith and in accordance with reasonable standards of fair dealing.

See Huber v. Huber, 323 Pa.Super. 530, 470 A.2d 1385 (1984).

[¶ 31.] In Huber, a postnuptial agreement for alimony and child support conditioned on the husband obtaining an uncontested divorce was held to be partially enforceable. Huber, 470 A.2d at 1390. In that case, a valid child support provision was not invalidated by the invalid portion of the agreement that encouraged divorce, although the invalid alimony provision was rendered unenforceable as it was against public policy. Id. at 1388.

[¶ 32.] In Neilson v. Neilson, 780 P.2d 1264, 1270 (Ut.Ct.App. 1989), valid property provisions in a prenuptial agreement were upheld despite the inclusion of an invalid property provision that encouraged divorce that was found to be against public policy. That court noted that the provision that granted the wife a specified number of shares for each year of the marriage was valid and separable from the invalid provision that encouraged divorce, and provided a windfall of $400,000 for the wife if she was able to motivate the husband to divorce her. Id. at 1269. The rationale for the severability was based on Restatement (Second) Contracts § 184. Id. at 1270.

[¶ 33.] Our legislature last amended SDCL 53-5-4 in 1939, and in the face of our holding in Connolly on the severability of invalid portions of a prenuptial agreement from valid portion as handed down in 1978, it has not sought to amend SDCL 53-5-4 to exclude its application to prenuptial agreements. Therefore, we hold prenuptial agreements are severable under SDCL 53-5-4 if the agreement meets the requirements of Restatement (Second) Contracts § 183 as applied in Thunderstik, or if the agreement meets the requirements of Restatement (Second) Contracts § 184.

[¶ 34.] In the instant case, there is one single payment structure for both alimony and property rights. However, the alimony waiver is not an essential part of the agreed exchange. The language of the prenuptial makes it abundantly clear that Denny sought to protect his considerable property interests. The agreement contained a clause titled “Purpose,” which read:

Both parties desire that their marriage will not in any way change their legal rights or that of their children, heirs, beneficiaries and their property. Both parties therefore desire that the property of each be kept separate and that neither should acquire any actual or possible interests in the property of the other as a result of the marriage, except as provided in this Agreement, (emphasis added).

[¶ 35.] Noticeably absent from the stated purpose of the agreement is a reference to support and alimony. Support and alimony are mentioned only once, in one clause of the entire nine page agreement. Obviously the essential goal of the contract was to protect Denny’s $55 million net worth.

[¶ 36.] Moreover, the language of the present prenuptial agreement itself addresses the issue of severability via a savings clause. Section 12 of the prenuptial agreement provides in relevant part: “[t]he invalidity or voidability of any part of this Agreement shall not affect the validity of the remaining parts.” This savings clause clearly shows the parties intended the valid provisions to remain in effect even if voidable provisions were severed from the agreement. Colleen’s reliance on our holding in Thunderstik also fails to consider that the contract in that case was materially distinguishable from the contract in the instant case, as the Thunderstik contract did not contain a severability clause.

[¶ 37.] Colleen contends that even if sev-erability applies, Denny is precluded from benefiting from the doctrine due to his marital misconduct that includes at least one admitted affair. Misconduct as it pertains to the severability issue must occur at the contract formation stage. See Thunderstik Lodge, Inc., 2000 SD 84, ¶ 12, 613 N.W.2d at 47-48. Misconduct after the contract is executed is not relevant to ascertaining the validity of the agreement at the formation stage. Id.

[¶ 38.] The trial court was correct in its legal analysis. Provisions in a prenuptial agreement purporting to limit or waive spousal support are void and unenforceable as they are contrary to public policy, and may be severed from valid portions of the prenuptial agreement without invalidating the entire agreement. In the instant case, the invalidity or unenforceability of the support provision in the Sanford prenuptial will not impede the enforceability of those portions of the prenuptial agreement that are found to be valid. Those provisions in the prenuptial that comport with our law on prenuptial agree-merits are fully enforceable. In order to determine whether the property provisions are enforceable, we must examine whether the requirements of SDCL 25-2-21 were satisfied when the prenuptial agreement was signed by the parties.

[¶ 39.] 2. Whether the circuit court erred when it concluded the property settlement portion of the prenuptial agreement was not unconscionable.

[¶ 40.] SDCL 25-2-21 provides:

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) That party did not execute the agreement voluntarily; or
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

[¶ 41.] This Court has stated:

[A]n antenuptial agreement will be held valid if the prospective spouse can be said to have had adequate knowledge of the nature and extent of the other party’s property, either as a result of disclosure by the other party or through the independent knowledge, however acquired, of the prospective spouse, or if the prospective spouse has been adequately provided for by the agreement.

Ryken v. Ryken, 461 N.W.2d 122, 125 (S.D.1990) (Ryken II) (quoting Ryken v. Ryken, 440 N.W.2d 300, 304 (S.D.1989) (Ryken I) (citing Schutterle v. Schutterle, 260 N.W.2d 341, 348 (S.D.1977))).

[¶ 42.] We have had just two occasions to address what constitutes a “fair and reasonable disclosure” in the context of SDCL 25-2-21. In Ryken II, we held the burden of disclosure rests with each spouse, rather than placing an obligation on one spouse to determine the extent of the assets of the other spouse. 461 N.W.2d at 125. We noted that the husband in that case had an obligation to “disclose his assets to the best of his ability.” Id. It does not fall upon a spouse to assume the role of detective in an attempt to ferret out the existence and value of the other spouse’s assets. Id. It is sufficient “if the prospective spouse can be said to have had adequate knowledge of the nature and extent of the other party’s property.” Schutterle, 260 N.W.2d at 348.

[¶ 43.] A majority of the jurisdictions that have reviewed the issue do not require the disclosure to be exact or precise. See Darr v. Darr, 950 S.W.2d 867, 870-71 (Mo.Ct.App.1997); In re Marriage of Spiegel, 553 N.W.2d 309, 317 (Iowa 1996); In re Estate of Beesley, 883 P.2d 1343, 1348 (Utah 1994); Matuga v. Matuga, 600 N.E.2d 138, 141 (Ind.Ct.App.1992); Nanini v. Nanini, 166 Ariz. 287, 802 P.2d 438, 441-42 (Ct.App. 1990); In re Estate of Hartman, 399 Pa.Super. 386, 582 A.2d 648, 651 (1990); Pajak v. Pajak, 182 W.Va. 28, 385 S.E.2d 384, 388 (1989); In re Estate of Peterson, 221 Neb. 792, 381 N.W.2d 109, 113-14 (1986); Hengel v. Hengel, 122 Wis.2d 737, 365 N.W.2d 16, 20 (Ct.App. 1985); Jackson v. Seder, 467 So.2d 422, 428 (Fla.Ct.App.1985); In re Estate of Lopata, 641 P.2d 952, 955 (Colo.1982); Hook v. Hook, 69 Ohio St.2d 234, 431 N.E.2d 667, 670 (1982); Laird v. Laird, 597 P.2d 463, 467 (Wyo.1979); In re Marriage of Cohn, 18 Wash.App. 502, 569 P.2d 79, 83 (1977); In re Estate of Broadie, 208 Kan. 621, 493 P.2d 289, 294 (1972); Hartz v. Hartz, 248 Md. 47, 234 A.2d 865, 870-71 (1967); Simpson v. Simpson’s Ex’rs, 94 Ky. 586, 23 S.W. 361, 362 (Ct.App. 1893). A list of assets and liabilities with approximate values is considered sufficient in these jurisdictions to give the other spouse a reasonable or sufficient understanding of the other spouse’s net worth. It must be accurate and specific enough to secure expert opinion as to valuation.

[¶ 44.] It is not necessary, given the language in SDCL 25-2-21, for a spouse to provide a detailed and exact valuation of his or her net worth in a prenuptial agreement. It is sufficient for a spouse to provide, within the best of his or her abilities, a list of assets and liabilities with approximate valuations. The listing must be sufficiently precise to give the other spouse a reasonable approximation of the magnitude of the other spouse’s net worth.

[¶ 45.] In the instant case, Denny supplied Colleen with a detailed listing of assets and liabilities. According to Denny’s deposition, his bookkeeper compiled the information using valuations from April 30, 1995. Denny’s disclosure listed assets totaling $55 million dollars. Colleen was not able to identify any fault or issue with the financial statement that would indicate it failed to provide her with a reasonable approximation of Denny’s net worth at the time the prenuptial agreement was executed.

[¶ 46.] Denny presented the financial disclosure to Colleen through her attorney on August 15, 1995. The parties signed the agreement on August 16, 1995, almost five weeks before the wedding that was scheduled for September 23, 1995. There was sufficient time between the date the document was presented to Colleen and the wedding date for Colleen to review the contents of the disclosure, obtain legal advice and decide whether to sign the agreement. Moreover, although she had advice of counsel, she signed the document prior to her marriage rather than ask for additional time to review and analyze the contents of the document. It cannot be said that there was any overreaching on the part of Denny with regard to the content of the financial disclosure, or the time and manner in which the prenuptial was presented, signed and executed.

[¶ 47.] Based on the foregoing, we conclude that Colleen is entitled to keep the property provided to her under the agreement. She gave up any future claim against Denny’s property for it, and a fair reading of the record indicates there would have been no marriage without protection for Denny’s property. We have concluded that this was the essential reason for the agreement and it is clearly severable from the single reference in the agreement to Colleen’s waiver of alimony.

[¶ 48.] Affirmed.

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

      . There is no evidence that there was a substantial change in the assets or their value from the April 1995 valuation date to the date the document was signed.

      . Forty-one states allow premarital waivers of spousal support, twenty-one by virtue of their legislatures’ adoption of all or substantial portions of the UPAA. Another eighteen have permitted waivers pursuant to judicial decisions. New York permits spousal support waivers under other statutory authority. In re Marriage of Pendleton & Fireman, 24 Cal.4th 39, 99 Cal.Rptr.2d 278, 5 P.3d 839, 849 (2000).

      . The record contains no explanation for the reason Denny's counsel included the void alimony waiver in the prenuptial agreement given South Dakota's exclusion of the alimony waivers from SDCL 25-2-18. However, in light of the fact that an overwhelming majority of states permit alimony waivers, Denny's counsel may have included the provision anticipating that South Dakota would eventually follow suit.

      . Factors which are considered in the need for alimony and its amount and duration are: “(1) length of the marriage; (2) respective earning capacity of the parties; (3) their respective age, health and physical condition; (4) their station in life or social standing; and (5) relative fault in the termination of the marriage.” Anderson v. Anderson, 2002 SD 154, ¶ 12, 655 N.W.2d 104, 107 (citing Urban v. Urban, 1998 SD 29, ¶ 8, 576 N.W.2d 873, 875; Christians v. Christians, 2001 SD 142, ¶ 16, 637 N.W.2d377, 381).

      . In Saxvik we surveyed previous case law on the subject and concluded permanent alimony is modifiable. See SDCL 25-4-41. We also held that lump sum alimony, and restitutional or reimbursement alimony are not modifiable, nor is the denial of alimony. We left for another day the issue of whether rehabilitative alimony may be modified. However, we cautioned that "in dealing with the various types of alimony, it is not the label that is placed on the award that controls, but rather the nature of the award.” Saxvik, 1996 SD 18, ¶ 16, 544 N.W.2d at 180 (citing Hautala, 417 N.W.2d 879).

      . The prenuptial agreement in Neilson provided that the husband would transfer a specified number of his total shares, which comprised his major retirement income asset, for each year of the marriage beginning with one-nineteenth in the first year and one-eleventh in the ninth year so that each spouse had the same number of shares at the end of the ninth year of marriage. Neilson, 780 P.2d at 1266. The agreement contained another provision in the event the parties divorced in an action initiated by the husband that would automatically entitle the wife to the number of shares that would provide her with an equal number of shares as the husband owned, regardless of the number of years the marriage survived. Id. That court held the end result of the clause was a $400,000 incentive for the wife to induce the husband to seek a divorce at the earliest possible date. Id. at 1269.


source: Caselaw Access Project

author: LARSON, Justice. WIGGINS, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Lloyd Dean BONJOUR, Appellant.
    No. 03-0309.
    Supreme Court of Iowa.
    Feb. 11, 2005.
    Rehearing Denied April 12, 2005.
    Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, and Marilyn J. Dettmer, County Attorney, for appellee.
   LARSON, Justice.

The only issue in this appeal is whether we will recognize a common-law defense of medical necessity in a marijuana manufacturing case. The district court denied the defense, and we affirm.

I. Facts and Prior Proceedings.

When Floyd County sheriffs deputies went to Lloyd Bonjour’s home to serve warrants on him, they observed marijuana plants and bagged marijuana. Bonjour was initially charged with multiple offenses, but by agreement with the State the charges were reduced to one: manufacture of marijuana in violation of Iowa Code section 124.401 (1999).

Prior to trial, Bonjour filed a notice of his intent to rely on a defense of medical necessity. The State resisted by filing a motion in limine, and Judge Stephen Carroll held an evidentiary hearing on it. At the hearing,'Bonjour testified that he is in his sixties and suffers from Acquired Immune Deficiency Syndrome (AIDS). His physician, Dr. Jeffery Meier, assistant professor in internal medicine at the University of Iowa, testified that because of the AIDS virus Bonjour must take a variety of toxic medications. This toxic combination causes side effects such as poor appetite, nausea, neuropathy, and diarrhea.

Dr. Meier originally treated these side effects by prescribing Marinol, which is a synthetic version of THC (the active substance in marijuana). Dr. Meier stated that Bonjour demonstrated some signs of improvement while on Marinol, but his symptoms were better controlled when he began using marijuana. Dr. Meier conceded that his only basis for this assessment was the information he received from Bonjour about what he had been taking. Nevertheless, Dr. Meier concluded that “one could say that marijuana might have been lifesaving in this particular case.” The effectiveness of marijuana in the treatment of AIDS is not an issue in this appeal.

Judge Carroll granted the State’s motion in limine and barred Bonjour from presenting his medical-necessity defense. The case proceeded to a bench trial before Judge Bryan McKinley, who found Bonj-our guilty. On appeal Bonjour’s sole issue is the denial of his medical-necessity defense'.

II. The Medical-Necessity Defense.

We have considered necessity defenses in other contexts. E.g., State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981); State v. Ward, 170 Iowa 185, 188-89, 152 N.W. 501, 502 (1915). In Walton, which involved a defendant’s illegal carrying of a firearm for self-protection, we rejected the defense. In Ward, which involved a defendant shooting a deer to protect his crop, we allowed it. We have never decided a medical-necessity case.

We have said the rationale for the necessity defense in general lies in the “defendant being required to choose the lesser of two evils and thus avoiding a greater harm by bringing about a lesser harm.” Walton, 311 N.W.2d at 115. As one commentator has stated, “the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” 2 Wayne R. LaFave, Substantive Criminal Law § 10.1 (2d ed.2003) [hereinafter LaFave].

However,

[t]he defense of necessity is available only in situations wherein the legislature has not itself, in its criminal statute, made a determination of values. The mere fact that the statute under which defendant is charged has some exceptions from liability not covering the situation at hand does not inevitably mean there has been a legislative determination contrary to defendant’s position. But if the legislature has made a determination on this matter one way or another, then its decision governs.

Id. (footnotes omitted).

As the New Jersey Supreme Court noted:

The [necessity] defense is based on public policy. In.essence it reflects a determination that if, in defining the offense, the legislature had foreseen the circumstances faced by the defendant, it would have created an exception. It would have balanced the competing values and chosen the lesser evil. Obviously, then, the defense is available at common law only when the legislature has not foreseen the circumstances encountered by a defendant. If it has in fact anticipated the choice of evils and determined the balance to be struck between the competing values, defendants and courts alike are precluded from reassessing those values to determine whether certain conduct is justified.

State v. Tate, 102 N.J. 64, 505 A.2d 941, 946 (1986).

Similarly, we look to our substance-abuse statutes to determine whether the legislature has already struck a balance between the two harms presented (i.e., the harm of manufacturing marijuana versus the harm of denying AIDS victims the right to use it) or left the issue open. If it has left the issue open, there may be room for recognizing a common-law necessity defense. See id.; LaFave § 10.1.

Iowa Code chapter 124 restricts the use of controlled substances and divides them into five “schedules.” Marijuana is listed as a Schedule I controlled substance. Iowa Code § 124.204(4)(m). Iowa Code section 124.203 states that a Schedule I substance “[h]as a high potential for abuse” and “[h]as no accepted medical use in treatment in the United States” or “lacks accepted safety for use in treatment under medical supervision.”

Despite the legislature’s conclusion that marijuana has no allowable medicinal use, it left the door open for possible medical uses in the future. Under section 124.204(4)(m), marijuana is a Schedule I controlled substance “except as otherwise provided by rules of the board of pharmacy examiners for medicinal purposes.”

The legislature has recognized that marijuana may have medical value. This is apparent from Iowa Code section 124.206(7)(a), which provides marijuana may become a Schedule II substance (which is one that “has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions,” Iowa Code § 124.205(2)). As to marijuana, the “severe restriction” is that its use must be for medicinal purposes “pursuant to rules of the board of pharmacy examiners.” Id. § 124.206(7)(a) (emphasis added). The defendant does not contend, and we do not believe, that the Board of Pharmacy Examiners has adopted any rules that would make marijuana use legal.

These statutes show that our legislature has foreseen the potential medical uses for marijuana but has deferred on the issue until the Board of Pharmacy Examiners has acted. The legislature has, therefore, made the kind of “determination of values” in this debate — enforcement of the marijuana ban versus its potential medical value — that effectively forecloses our recognition of a common-law necessity defense. See Tate, 505 A.2d at 946; LaFave § 10.1.

Part of the problem in recognizing a medical-necessity defense is defining the parameters to place on it. Medical-necessity defenses have been sought in connection with treatment of a wide variety of conditions. In addition to AIDS, these have included complications of diabetes (People v. Mower, 28 Cal.4th 457, 122 Cal.Rptr.2d 326, 49 P.3d 1067, 1071 (2002)); epilepsy (State v. Hanson, 468 N.W.2d 77, 77-78 (Minn.Ct.App.1991)); emotional anxiety caused by head injury (State v. Williams, 93 Wash.App. 340, 968 P.2d 26, 28 (1998)); effects of chemotherapy (Seeley v. State, 132 Wash.2d 776, 940 P.2d 604, 606-07 (1997)); spasticity due to quadriplegia (Tate, 505 A.2d at 942); glaucoma (State v. Bachman, 61 Haw. 71, 595 P.2d 287, 288 (Haw.1979)); rheumatoid arthritis (State v. Hastings, 118 Idaho 854, 801 P.2d 563, 564 (Idaho 1990)); and multiple sclerosis (State v. Poling, 207 W.Va.299, 531 S.E.2d 678, 680-81 (2000)). There are, no doubt, many other maladies for which marijuana treatment may be sought.

Although some states have adopted the defense of medical necessity by statute, Iowa has not. And most jurisdictions to consider the issue under common law have rejected it. See, e.g., United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491-93, 121 S.Ct. 1711, 1718-19, 149 L.Ed.2d 722, 732-34 (2001); State v. Cramer, 174 Ariz. 522, 851 P.2d 147, 149 (Ariz.Ct.App.1992); People v. Kratovil, 351 Ill.App.3d 1023, 286 Ill.Dec. 868, 815 N.E.2d 78, 90-92 (2004); Hanson, 468 N.W.2d at 78-79; Tate, 505 A.2d at 946; Williams, 968 P.2d at 30; Poling, 531 S.E.2d at 684-85. But see Jenks v. State, 582 So.2d 676, 679 (Fla.Dist.Ct.App.1991).

Our conclusion that the legislature did not leave the door open to a common-law necessity defense might draw into question our deer-shooting case, State v. Ward, previously mentioned. In that case, the legislature had considered the possibility of a need to shoot nuisance deer, in violation of the general statute, by providing a remedy:

When it shall become necessary in the opinion of the state game warden or his deputies to kill or capture any deer now running at large within this state, it shall be done under the authority and direction of the state fish and game warden. ...

Ward, 170 Iowa at 190, 152 N.W. at 502. In Ward the defendant did not enlist the aid of the state game warden but rather shot the deer himself. Id. at 187, 152 N.W. at 501. Despite the fact the legislature had weighed the possible need to dispose of nuisance deer and provided a means to do it other than by self-help, we allowed the defendant to assert a necessity defense. Id. at 189, 152 N.W. at 502.

While our disposition of the present case seems to be inconsistent with Ward, we believe the medical use of marijuana is qualitatively different from the legal issue in Ward. Use of marijuana is a public-policy issue best suited for the legislature because it is driven by legal, moral, philosophical, and medical concerns that are ill-suited for resolution by this court. This is especially true in view of the fact the legislature has deferred the initial decision on the matter to the Board of Pharmacy Examiners.

As the law stands now, manufacturing marijuana is prohibited and marijuana has no recognized medicinal value. The issue in this case is not whether the legislature has “acted to preclude the defense by a clear and deliberate choice,” Commw. v. Hutchins, 410 Mass. 726, 575 N.E.2d 741, 744 (1991). It has not. What it has done, however, is to clearly and deliberately decide what the procedure shall be for making that determination. That procedure is to defer to the Board of Pharmacy Examiners, which is far better equipped than this court — and the legislature, for that matter — to make critical decisions regarding the medical effectiveness of marijuana use and the conditions, if any, it may be used to treat. The board has not done so, and we, by legislative directive, must wait until it does.

While an appeal is made here for us to recognize this defense on humanitarian grounds, we may do so only under established principles of law. In other contexts, we have been asked to ameliorate harshness in legislative enactments and have declined. In Schultze v. Landmark Hotel Corp., 463 N.W.2d 47 (Iowa 1990), for example, the plaintiff asked us to engraft a discovery rule on the statute of limitations under Iowa Code section 614.1(9). We said the

plaintiff raises an equitable concern. He argues that the discovery rule should apply to section 614.1(9) because of the “extreme hardship” and “strained and impractical result” it works on survivors. A few courts have allowed equitable concerns and potential hardship to plaintiffs to influence their decision applying the discovery rule in the face of a statute expressly providing that an action must be commenced within a specified period of time after death. We find, however, this line of cases to be unsound authority because they are based on judicial discretion used to implement notions of fairness rather than giving effect to the priorities that the legislature has set forth in an express statutory provision.

Schultze, 463 N.W.2d at 51 (emphasis added) (citations omitted); accord Schlote v. Dawson, 676 N.W.2d 187, 193 (Iowa 2004).

In view of the legislature’s measured plan for studying this issue, it would be inappropriate now for us to leapfrog the legislature and the Board of Pharmacy Examiners by simply recognizing the medicinal value, and the legality, of marijuana use. Informed medical decisions need to be made regarding whether in fact marijuana has the claimed effects. An even more significant issue is how far such a defense should be extended. Resolution of these issues must await further study by the pharmacy board and the legislature.

We believe the trial court correctly denied the proffered medical-necessity defense, and we therefore affirm.

AFFIRMED.

All justices concur except TERNUS, J., who concurs in result only, and WIGGINS, J., and LAYORATO, C.J., who dissent.

WIGGINS, Justice

(dissenting).

I respectfully dissent.

Bonjour is a man in his sixties living with AIDS. Bonjour’s doctor told the district court he must take a cocktail of toxic drugs to prolong his life. His doctor also told the district court this cocktail of toxic drugs has serious side effects, which include nausea, vomiting, poor appetite, diarrhea, and neuropathy. These side effects have not allowed Bonjour to stay on the strict regimen of his AIDS’ drugs, which is critical for these drugs to work. Bonjour’s doctor attempted to relieve the side effects of the drugs by other medication, including Marinol, a synthetic form of marijuana, used to control nausea and vomiting. These medications were ineffective in controlling these side effects, so Bonjour started to use marijuana in his cooking to alleviate the side effects. The marijuana controlled the side effects more effectively than the Marinol and allowed Bonjour to maintain his strict regimen of drugs. Bonjour’s health has improved with his use of marijuana.

The State chose to charge Bonjour with possession of marijuana. The only issue before this court is whether under these facts the common-law medical necessity defense is available to a defendant charged with possession of marijuana.

I agree with the majority the common-law defense of necessity is only available to Bonjour if “the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.” Commonwealth v. Hutchins, 410 Mass. 726, 575 N.E.2d 741, 744 (1991). I disagree, however, with the majority’s conclusion that the legislature’s enactment of Iowa’s Controlled Substances Act foreclosed the recognition of the common-law necessity defense when it involves the medical use of marijuana.

In 1971, the legislature repealed the Uniform Narcotic Drug Act and enacted the Uniform Controlled Substances Act. Unif. Controlled Substances Act, prefatory note, 9 U.L.A. 10 (1994). While Iowa’s enactment of the Uniform Controlled Substances Act is a substantial adoption of the major provisions of the uniform act, Iowa’s act contains some provisions not contained in the uniform act. Id. One such provision at variance with the uniform act occurred by amendment in 1979.

Iowa’s act, as originally enacted, classified marijuana as a Schedule I controlled substance without exception. Iowa Code § 204.204(4)0) (1973). A Schedule I substance “has no accepted medical use in treatment in the United States; or lacks accepted safety for use in treatment under medical supervision.” Id. § 204.203(2). The original enactment was consistent with the uniform act. In 1979, the legislature amended Iowa’s act classifying marijuana as a Schedule I substance “except as otherwise provided by the rules of the board of pharmacy examiners for medical purposes.” Id. § 204.204(4)0') (1981). In the same amendment, the legislature added a new provision to the list of Schedule I substances providing, “[t]his section does not apply to marijuana ... when utilized for medical purposes pursuant to rules of the state board of pharmacy examiners.” Id. § 204.204(6).

In the session laws adopting the 1979 amendments, the legislature also provided funding for the board of pharmacy examiners to establish “a research program for the medicinal use of marijuana.” 1979 Iowa Acts ch. 9, § 3. In 1979, the board of pharmacy examiners adopted rules establishing a research program investigating the medical use of marijuana. Iowa Admin. Code r. 620 — 12.1 (1979). The rules clearly recognized the legislature did not preclude the medical use of marijuana in Iowa’s Controlled Substances Act by stating: “Nothing in these rules will preclude the use of any available dosage forms of marijuana or tetrahydrocannabinols.” Id. The rules defined “marijuana” as the legislature defined it in Iowa’s Controlled Substances Act. Id. r. 620 — 12.2(3).

In 1987, the board of pharmacy examiners rescinded its rules establishing a research program into the medical use of marijuana because the legislature amended Iowa’s Controlled Substances Act classifying marijuana as a Schedule II substance. Feb. 25, 1987 Iowa Admin. Bull, at 1444 (ARC 7383). The provision amending the Code classifying marijuana as a Schedule II substance provided in relevant part: “[mjarijuana is deemed to be a Schedule II substance when used for medicinal purposes pursuant to rules of the board of pharmacy examiners.” Iowa Code § 204.206(7) (1987). A Schedule II substance “has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions.” Id. § 204.205(2). Millions of people use Schedule II substances each day to relieve their symptoms. Other Schedule II substances include pain medications with codeine (Tylenol with codeine), oxycodone-based pain medications (Percocet), fentynal-based pain medications (Duragesic), and amphetamines (Adderall and Dexedrine).

In 1990, the legislature amended this section of the Code one more time. The legislature continued to classify marijuana as a Schedule II substance, when used for medical purposes pursuant to rules of the board of pharmacy examiners. Id. § 204.206(7) (1991). It provided:

Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances [is a Schedule II substance]:
a. Marijuana when used for medicinal purposes pursuant to rules of the board of pharmacy examiners.
c. Nabilone.

Id. The 1990 amendment continues to be the law today. See Iowa Code § 124.206(7) (2003).

This legislative history and the classification of marijuana as a Schedule II substance indicate the legislature has not precluded the use of the common-law necessity defense by a clear and deliberate choice regarding the values surrounding the medical use of marijuana. The legislature has accepted the fact that marijuana does have legitimate medical uses. This acceptance leaves the issue open as to whether the common-law medical necessity defense is available to a defendant charged with possession of marijuana. If the legislature wanted to preclude the common-law necessity defense by a clear and deliberate choice regarding the values surrounding the medical use of marijuana, it would have repealed the sections of the Code recognizing that marijuana has legitimate medical uses.

The majority believes the legislature’s inclusion of the language, “pursuant to rules of the board of pharmacy examiners,” indicates a clear and deliberate choice by the legislature to preclude the common-law defense until the board acts. I disagree. At best, the legislature’s inclusion of this language indicates an ambiguous choice by the legislature regarding the values surrounding the medical use of marijuana.

Once it is determined that the legislature has not precluded the common-law necessity defense to a charge of unlawful possession of marijuana, no one can dispute that the common-law necessity defense exists in Iowa. State v. Reese, 272 N.W.2d 863, 866 (Iowa 1978). This court first recognized the common-law defense in 1915. State v. Ward, 170 Iowa 185, 191, 152 N.W. 501, 503 (1915). In Ward, the State charged the defendant with unlawfully killing a deer. 170 Iowa at 187, 152 N.W. at 501-02. The defendant contended he killed the deer because several deer had regularly destroyed his crops. Id. at 188, 152 N.W. at 502. The statute under which the defendant was charged made no exception to the killing of a deer in defense of one’s property. Id. at 189-90, 152 N.W. at 502. The statute only allowed the state game warden or his deputies to kill or capture any deer running at large “when it became necessary in the opinion of the state game warden or his deputies.” Id. at 190, 152 N.W. at 502. In allowing the defendant to use and eventually prevail on the common-law necessity defense, this court stated:

[T]he right of defense of person and property is a constitutional right (article I, § 1, const. Iowa), and is recognized in the construction of all statutes. If in this case it was reasonably necessary for the defendant to kill the deer in question in order to prevent substantial injury to his property, such fact, we have no doubt would afford justification for the killing.

Id. at 189, 152 N.W. at 502 (emphasis added). Article I, section 1 of the Iowa Constitution provides:

All men and women are, by nature, free and equal, and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

Iowa Const, art. I, § 1.

If this court recognizes article I, section l’s inalienable rights in the context of the necessity defense, the right of a person to defend his or her life and pursue and obtain safety and happiness is just as important, if not more important, than the right to defend one’s crops from hungry deer. If we are willing to allow a farmer to realize the full value of his crops by allowing him to kill a foraging deer, when the law authorized only a game warden or his deputy to kill that deer, we should allow an individual to seek relief from the agonizing symptoms caused by an incurable disease that will eventually lead to death, even though the board of pharmacy examiners has not enacted rules regarding the medical use of marijuana.

The failure of the board of pharmacy examiners to act is not an excuse for this court to refuse to recognize the defense when the legislature clearly recognizes there are legitimate medical uses for marijuana. We do not have to wait for the legislature or the board to negotiate the political minefield regarding the medical use of marijuana. As long as the legislature has not precluded the defense by a clear and deliberate choice, this court has an obligation to allow a defendant to use a necessity defense if the facts support such a defense. Otherwise, this court could always cite to a legislature’s ambiguous pronouncement on a subject as grounds for rejecting the defense.

For these reasons, I would recognize the common-law necessity defense when a defendant uses marijuana for medical purposes. See Jenks v. State, 582 So.2d 676, 679 (Fla.Dist.Ct.App.1991) (holding statute listing marijuana as a Schedule I substance does not preclude the defense of medical necessity for a defendant who allegedly used marijuana to treat nausea in connection with his AIDS’ treatment); State v. Bachman, 61 Haw. 71, 595 P.2d 287, 288 (Haw.1979) (holding a medical necessity defense could be asserted to a marijuana possession charge with competent medical testimony); State v. Hastings, 118 Idaho 854, 801 P.2d 568, 565 (Idaho 1990) (holding defendant who was charged with possession of marijuana was entitled to present evidence relating to the common-law defense of necessity in connection with her claim that she suffered from rheumatoid arthritis and used marijuana to control pain and muscle spasms). In order for a defendant to use the defense, I would require the defendant to show by competent medical evidence that (1) the defendant is faced with a serious and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that the use of marijuana for medical purposes will be effective to abate the danger; and (3) there are no legal conventional medical alternatives which will be effective in abating the danger. I would limit the defense to possession charges.

Bonjour presented competent medical evidence from a board-certified physician that the use of marijuana to treat Bonj-our’s symptoms is effective, safe, and without significant side effects. Under the record made at the motion in limine hearing, Bonjour satisfied the elements necessary to put the defense of medical necessity at issue. Therefore, I believe Bonjour should be entitled to use this defense to the charge of unlawful possession of marijuana.

LAVORATO, C.J., joins this dissent.

      . Iowa’s Controlled Substances Act is found in Iowa Code chapter 124.

      . By statute, the board of pharmacy examiners has the duty to recommend revisions to the schedules of controlled substances. Iowa Code §§ 204.201(1); 204.205 (1987).

      . Nabilone is a synthetic derivative of the chemicals found in marijuana.