author: GILBERTSON, Chief Justice.

text:
    2006 SD 111
    STATE of South Dakota, Plaintiff and Appellee, v. Duane L. RUNGE, Defendant and Appellant.
    No. 23939.
    Supreme Court of South Dakota.
    Argued Oct. 2, 2006.
    Decided Dec. 6, 2006.

      Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    Robert G. Fite of Fite and Pierce, Brookings, SD, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] The South Dakota Third Judicial Circuit Court entered a judgment of conviction and sentence for third offense driving while intoxicated, against Duane L. Runge on December 6, 2005. The court amended and filed the judgment of conviction and sentence on December 27, 2005. A sentence of 18 months in the South Dakota State Penitentiary was imposed. We affirm.

FACTS AND PROCEDURE

[¶ 2.] At approximately 9:20 p.m. on January 5, 2005, Duane L. Runge (Runge) stopped at the 22nd Avenue fire station in Brookings, South Dakota. He had noticed that the pickup truck belonging to his friend Jeremy Jensen (Jensen), a volunteer fireman, was parked there with its lights on. Runge pulled his pickup into the station and parked at about the same time volunteer fireman William Rupp (Rupp) was arriving. Runge exited his pickup, approached Rupp and inquired into what was going on. Rupp told Runge that there was a live fire call taking place and that he would have to move his vehicle because it was blocking one of the fire station’s overhead doors. Runge returned to his pickup and proceeded to move it from the 22nd Avenue side of the fire station around to the station’s north side. Runge once again exited his pickup, this time entering the fire station.

[¶ 3.] Once inside Runge again asked what was going on at the fire station. Rupp and other volunteer firemen present at the station explained that there was a live fire call taking place. Runge inquired as to the whereabouts of Jensen. Runge was told that Jensen was at the fire call. Runge indicated that he was concerned about the lights remaining on the Jensen’s unattended pickup truck and asked if he could shut them off. Rupp and the other firemen did not know Runge and told him to stay away from Jensen’s vehicle. By this time, Rupp and the others observed that Runge smelled of alcohol, had slurred speech, and stumbled as he walked about. Runge remained inside the fire station for several minutes after he was refused access to Jensen’s pickup. Eventually he was told to leave. Runge then left the fire station, got into his pickup, and drove away.

[¶ 4.] At about the same time Runge was leaving, Jayson Lenander (Lenander), another volunteer fireman, was arriving at the fire station. Lenander observed that as Runge was leaving the fire station, he nearly backed into a vehicle belonging to another fireman. The firemen inside the station had unsuccessfully attempted to radio the Brookings Police Department (BPD) from one of the fire trucks to request removal of an unidentified and apparently intoxicated person. Lenander was advised of the situation by the other firemen and at about 9:30 p.m. used his cell phone to call BPD to report that a suspected drunk driver had just left the fire station. Lenander relayed a description of the pickup Runge was driving, the license plate number and information about Runge’s visit reported to him by others at the fire station.

[¶ 5.] When Jensen returned from the fire call, Lenander handed him his cell phone and advised him to call BPD because they wanted to talk to him. By the time Jensen called at about 9:40 p.m., BPD had run the license plate and determined the pickup belonged to Runge. The dispatcher asked Jensen if he knew Runge and if so where he might have been headed. Jensen indicated he knew Runge and that he may have been headed to Jensen’s apartment in Brookings at 880 Park Avenue, # 9.

[¶ 6.] At approximately 9:55 p.m., BPD Officer Joey Collins (Collins) heard a radio report from another BPD officer that a pickup matching the description of Runge’s was in the parking lot of the apartment building at 830 Park Avenue. Collins proceeded to the address, arriving a short time before BPD Officer Perry (Perry). Collins observed that Runge’s pickup was still running. Collins and Perry went inside the building to Jensen’s apartment and knocked on the door. Jensen’s girlfriend Jessica Hougland (Houg-land) answered. Hougland had been living at the apartment since September 2004. Collins asked if Jensen or the other tenant on the lease, Travis Anderson (Anderson), were home. Hougland responded that they were not. Collins then asked if Runge was there. Hougland responded that Runge was present and then invited the officers in while she went to get Runge.

[¶ 7.] Runge, who was a friend of Jensen’s, appeared drinking a beer. Collins noticed that Runge’s eyes were bloodshot; his face was pale; he had slurred speech; and when standing in one spot, he would sway. Collins asked Runge to accompany them outside. Runge left with the officers and went out to Collins’s patrol car. After an interview and field sobriety test, Runge was arrested for third offense driving while intoxicated.

[¶ 8.] On October 18, 2005, the circuit court entered a finding of guilt against Runge in a bench trial. This conviction was based on the stipulated admission of transcripts of witness testimony from a February 22, 2005 preliminary hearing and a May 3, 2005 suppression motions hearing from which findings of fact and conclusions of law were entered. Runge was ultimately sentenced to 18 months in the South Dakota State Penitentiary. He appeals the circuit court’s order denying his motion to suppress evidence and raises the following issues:

1. Whether law enforcement officers had valid third-party consent to enter the apartment.
2. Whether Runge voluntarily consented to accompany law enforcement officers out of the apartment for a brief detention and investigation in a patrol car.

STANDARD OF REVIEW

[¶ 9.] “ ‘A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review.’ ” State v. Kottman, 2005 SD 116, ¶9, 707 N.W.2d 114, 118 (citations omitted). This Court gives no deference to the circuit court’s conclusions of law and applies the de novo standard. State v. Schouten, 2005 SD 122, ¶ 9, 707 N.W.2d 820, 822 (citations omitted). We review the circuit court’s factual determinations under the clearly erroneous standard. State v. Aaberg, 2006 SD 58, ¶8, 718 N.W.2d 598, 600 (citations omitted). The circuit court’s application of a legal standard to the facts, once determined, is fully reviewable by this Court. Id. (citations omitted).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether law enforcement officers had valid third-party consent to enter the apartment.

[¶ 11.] Runge argues that BPD Officers Collins and Perry did not have valid consent to enter Jensen’s apartment at 830 Park Avenue, # 9. Neither of the parties on the lease were at home when Collins and Perry arrived at the apartment. Runge asserts that Hougland, who was not on the lease, did not have the authority to consent to the BPD officers’ entry into the apartment. Alternatively, he contends that no consent was asked for by BPD officers and that none was given by Hougland.

[¶ 12.] A warrant is generally required for conducting an on-premise search; however, there are exceptions to this requirement. State v. Fountain, 534 N.W.2d 859, 863 (S.D.1995) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); State v. Almond, 511 N.W.2d 572, 574 (S.D.1994)). One exception is when law enforcement officers obtain consent to search. State v. Meyer, 1998 SD 122, ¶ 24, 587 N.W.2d 719, 724. Consent is valid if given voluntarily by someone with authority. Id. (citing State v. Benallie, 1997 SD 118, ¶ 11, 570 N.W.2d 236, 238). Whether consent is given voluntarily must be viewed within the totality of the circumstances. Benallie, 1997 SD 118, ¶ 10, 570 N.W.2d 236, 238 (citing State v. Krebs, 504 N.W.2d 580, 587 (S.D.1993)). The State must prove by a preponderance of the evidence that consent was voluntarily given. State v. Akuba, 2004 SD 94, ¶ 13, 686 N.W.2d 406, 412-13.

[¶ 13.] Consent to search a premises can be obtained from either an owner or a third party with common authority over the premises. State v. Guthrie, 2001 SD 61, ¶ 55, 627 N.W.2d 401, 423 (citing Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148, 156 (1990)). In United States v. Matlock, the United States Supreme Court determined that common authority is not implied from a mere property interest. 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 n. 7 (1974). The authority justifying third-party consent does not arise out of property law. Id. (citing Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (holding that a landlord could not validly consent to the search of a house he had rented to another); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (holding that a night hotel clerk could not validly consent to the search of a customer’s room)). Rather the common authority validating third-party consent is grounded in the mutual use of the property by persons generally having joint access or control for most purposes. Id.

[¶ 14.] At the motions hearing, Houg-land testified that sometime after Runge arrived at the apartment, she heard a knock at the door. When she answered the door, Officers Collins and Perry were standing in the hall. Hougland then testified to the following exchange with Collins:

He asked if Jeremy [Jensen] was there, and I said no, and he had a roommate at the time, and he asked if he was there, and I said no, and he asked if Duane Runge was there, and I said yeah, and I invited him in, and I went and got Duane.

[¶ 15.] Collins testified that Perry and he walked in with Hougland when she went to get Runge. No evidence was presented that Collins or Perry made any threats or exercised any coercion to gain access to the apartment. The circuit court entered in its findings of fact following the motions hearing that an invitation to enter the apartment was extended by Hougland to Collins and Perry.

[¶ 16.] Hougland also testified at both the preliminary and motions hearings that she had been living at the apartment since the end of September 2004. She had stayed each night at the apartment since that time and kept clothing there. She was taking a shower when Runge came into the apartment on January 5, 2005. Her father who was a BPD officer, called her that night at the apartment to check on her after learning that BPD officers had been dispatched to that address. Hougland kept no other residence.

[¶ 17.] Jensen also testified at the motions hearing. He too indicated that Hougland had lived at the 830 Park Avenue apartment continuously since September of 2004. Jensen stated that although Hougland did not share in the expenses, she lived at the apartment “full time.” She had permission to invite people in as needed and that the apartment “was considered her residence.” The circuit court subsequently stated in its memorandum opinion on the motion (which it incorporated by reference into its findings) that Hougland had been living with Jensen at the 830 Park Avenue apartment since September of 2004.

[¶ 18.] Based on the record, we must defer to the circuit court’s finding that Hougland issued an invitation to Collins and Perry to enter the apartment. This invitation constituted a valid consent for Collins and Perry to enter the apartment. In addition, there is nothing in the record to indicate that Hougland’s invitation to the officers was involuntary. Finally, as a full-time resident of the apartment for over three months, Hougland also had the authority to consent to the officers’ entry. We therefore affirm the circuit court’s conclusion on this issue.

[¶ 19.] 2. Whether Runge voluntarily consented to accompany law enforcement officers out of the apartment for a brief detention and investigation in a patrol car.

[¶ 20.] Runge argues that he did not voluntarily consent to accompany BPD Officers Collins and Perry out of the 830 Park Avenue apartment. Runge claims he did not feel that he had any choice but to accompany the officers. Runge stated at the suppression motions hearing that Collins started to become agitated when Runge questioned the reason why the officers wanted him to accompany them to their patrol car. He stated that he agreed to go with the officers because he was afraid that he would be restrained and physically removed if he did not comply. Runge also claims that after exiting Jensen’s apartment into the common hallway, he continued to follow the officers out of the building as the three conversed because again he felt he had no choice. However we note, the circuit court found Runge’s testimony not to be credible.

[¶ 21.] Collins testified at the preliminary hearing that he had no problem with Runge. Collins indicated that once inside Jensen’s apartment, he asked Runge to come with him to the patrol car and that Runge agreed. Moreover, Collins stated that once Runge was at the patrol car he agreed to submit to a field sobriety test.

[¶ 22.] Hougland testified that after Runge came out of Anderson’s bedroom, he and the officers went into the kitchen and had a brief conversation while she sat in the living room. She could not hear what was being discussed. After a short time, the officers turned and walked out of the apartment and Runge followed them.

[¶ 23.] The circuit court, in its Finding of Fact 17, issued after denying Runge’s motion, found that he voluntarily accompanied the officers to the patrol car after Collins asked following their brief discussion in the apartment. In addition, the circuit court found that once at the patrol car, Runge when asked submitted to a field sobriety test.

[¶ 24.] We cannot find any basis on which to determine the circuit court’s findings clearly erroneous. Accordingly, we must defer to the circuit judge who was present to hear all of the live testimony in this case. Whether Runge personally had an expectation of privacy in Jensen’s apartment is not a question necessary to consider in reviewing this case. Runge waived any right to a Fourth Amendment challenge to the evidence against him, based on a claim of illegal search and seizure, because he voluntarily consented to Collins’ requests.

[¶ 25.] Affirmed.

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

      . Runge raised a third issue in his brief: whether as a frequent visitor and occasional overnight guest at Jensen’s apartment he therein had an expectation of privacy.

      . Runge also raised a fourth issue in his brief: whether he could be seized from the apartment based upon a reasonable suspicion that he was driving while intoxicated.
      The circuit court stated in its conclusions of law that having found Runge's pickup running in the apartment parking lot and based on the citizen reports that led BPD Officers Collins and Perry to the 830 Park Avenue apartment, there was reasonable suspicion to briefly detain Runge for investigative purposes. Based on their subsequent personal observations of Runge, the circuit court also concluded that the officers had reasonable suspicion if not probable cause to briefly detain him and investigate the report of driving while intoxicated.
      In its incorporated opinion the circuit court stated that the facts of the instant case are no different than where a defendant is encountered a short distance from his vehicle on a highway. The circuit court implied that under those circumstances reasonable suspicion of criminal activity would be sufficient to justify a brief detention and investigation.
      We pass on consideration of whether the circumstances of the instant case constitute the same type of scenario as that concluded by the circuit court. The issue is not determinative to the disposition of this case since Runge voluntarily consented to the requests of Collins. In passing on this issue however, we do not overlook the basic Fourth Amendment principle that absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect seizure without a warrant. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).


source: Caselaw Access Project

author: MILLER, Retired Justice.

license: Public Domain

text:
    2006 SD 112
    Deb ANDERSON, Petitioner and Appellant, v. The CITY OF TEA, South Dakota, A Municipal Corporation, John M. Lawler, as Mayor of the City of Tea and The City Council Members, Eric Levan, Herman Otten, Deanna Ernster, Scott Czepull, Sidney Munson and Jo Niles, Respondents and Appellees.
    No. 23949.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2006.
    Decided Dec. 6, 2006.

      Thomas H. Frieberg, Kathryn A. Ritter, Intern Frieberg, Nelson & Ask, LLP, Beresford, SD, for petitioner and appellant.
    Jason M. Harris of Danforth & Meier-henry, LLP, Sioux Falls, SD, for respondents and appellees.
   MILLER, Retired Justice.

[¶ 1.] In this appeal we affirm the circuit court and hold that petitions seeking to bring a municipal ordinance to a public vote do not conform to statutory requirements.

[¶ 2.] Deb Anderson objected to a resolution adopted by the City of Tea that required the construction of sidewalks along various streets and avenues in the municipality. She and others circulated petitions among the residents of Tea attempting to refer the resolution to a public vote. The petitions were filed with the city finance officer, but rejected for failure to conform with statutory formatting guidelines. Anderson requested a writ of mandamus from the circuit court seeking to compel the City to conduct the election. The circuit court, following a hearing, denied Anderson’s request “because the Petitions were not self-contained as required by South Dakota law.” Anderson appeals. We affirm.

Facts and Procedural History

[¶ 3.] The parties stipulated to the following basic facts.

• On February 7, 2005, the City of Tea, acting through its Common Council adopted Resolution No. 05-02-03 entitled Resolution of Necessity — -Resolution Declaring the Necessity to Construct Sidewalk on Various Streets and Avenues in Tea, South Dakota and Assessing the Cost of Each Lot or Tract of Land Benefiting Thereby (hereinafter “Resolution”).
• Resolution No. 05-02-03 was published in the Tea Champion on February 23, 2005.
• Within twenty (20) days of the publication of Resolution No. 05-02-03, Anderson with assistance of legal counsel and in conjunction with other qualified electors of the City of Tea, prepared, circulated, and signed petitions protesting the passage of the resolution and petitioning that the resolution be submitted to a vote of the qualified and registered electors of the City of Tea for their approval or rejection, as provided by law.
• The signatures contained a sufficient number of qualified voters in order to require a referendum election on the resolution of necessity.
• On March 14, 2005, all of the petitions so circulated were filed with the finance officer for the City of Tea.
• Based upon advice of the Secretary of State and legal counsel, it was determined that the referendum petitions did not conform to the requirements of State Law.

[¶ 4.] The appeal raises the following issue:

Did the circuit court err in determining that the referendum petitions did not conform to South Dakota law?

Standard of Review

[¶ 5.] Our rules of statutory construction are as follows:

Questions of law such as statutory interpretation are reviewed by the Court de novo.... The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result. When the question is which of two enactments the legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.

Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citing U.S. West Communications, Inc. v. Public Util. Comm’n, 505 N.W.2d 115, 122-23 (S.D.1993) (citations omitted))).

Analysis and Decision

[¶ 6.] The sole issue before this Court is whether each page of a municipal referendum petition must be signed and verified by the circulator. Anderson argues that the circuit court erred when it determined that the referendum petitions were not self-contained because only the last, rather than each individual page, contained the required verification. She argues that only SDCL 9-20-9 applies to municipal referendums and that SDCL 2-1-9, which requires that each page of a petition must be verified, is not applicable to municipal election petitions.

[¶ 7.] This Court previously addressed the issue of verification in two key cases. First, in Corbly v. City of Colton, 278 N.W.2d 459 (S.D.1979), the Court analyzed SDCL 9-20-9, SDCL 2-1-10 and SDCL 2-1-11, as they read at the time, to determine if a referendum petition can be valid without a verifying affidavit by the circulator.

[¶ 8.] In examining the issue of verification, this Court held that “[v]erifi-cation, as used in connection with referendum petitions, means the swearing under oath by the circulator that he or she has personally circulated the petition and attests to the validity of the signatures.” Id. at 461 (citing Nist v. Herseth, 270 N.W.2d 565 (S.D.1978)). “Requirements for circulation and verification of referendum petitions, whether statutory or administratively adopted, are substantial in character and not merely requirements of form.” Id. (citing Nist, 270 N.W.2d 565 (S.D.1978); Headley v. Ostroot, 76 S.D. 246, 76 N.W.2d 474 (1956)). Therefore, verification requirements must “have been substantially complied with in order to render the petition valid.” Id.

[¶ 9.] In reiterating that the provisions of SDCL chapter 2-1 are applicable to municipal elections, we held in Baker v. Jackson, 372 N.W.2d 142 (S.D.1985), that SDCL 2-1-9 and 2-1-10 are likewise applicable to the process of circulating municipal referendum petitions. The issue in Baker was almost identical to the question before us today. The Baker court was asked to determine whether every single sheet of a fastened, multiple-page referendum petition must contain a correct heading and a properly notarized verification statement. Id. at 144.

[¶ 10.] In answering that question, this Court’s task was to examine the referendum petition “in light of all the dictates promulgated by the applicable constitutional provisions, legislative statutes and administrative rules, rather than to read the requirements of each in isolation.” Id. at 145. We then analyzed SDCL 9-20-9, 9-20-10, 2-1-9 and 2-1-10. Id. At the time, SDCL 2-1-9 provided:

It shall not be necessary that one paper shall contain all the signatures, but a single petition may be made up of one or more papers, each having the requisite heading. Separate papers, in proper form and duly signed, may, before filing, be bound together and shall be regarded as one petition and shall be sufficient if the aggregate number of signatures upon all is not less than the number required by this chapter. Blank lines upon additional sheets securely fastened to a top sheet, having the prescribed heading, may be used in obtaining signatures, and shall be regarded, together with the top sheet having the proper heading, as one paper.

SDCL 2-1-9 (amended 1986). In considering that statute, as well as SDCL 2-1-10 and ARSD 5:02:08:00(3), we concluded in Baker that a municipal referendum petition could be valid in the following three forms:

First, a valid municipal referendum petition may consist of separate sheets that [are] circulated individually if every such sheet contains an appropriate heading. All such sheets, which [are] circulated by a particular circulator, can then be bound together and verified by attaching a properly notarized verification statement as a last page to the bound sheets. Such a petition comports with the dictates of SDCL 2-1-9, SDCL 2-1-10, and ARSD 5:02:08:00(3). Second, a valid municipal referendum petition may consist of a first page containing the appropriate heading which is securely fastened to other pages containing blank lines but no headings. This petition can then be verified by attaching a properly notarized verification statement, by the person who circulated that particular petition, to the end of the petition. This complies with the statutory requirements set forth in SDCL 2-1-9 and SDCL 2-1-10 and constitutes a valid petition. Finally, as appellant contends, every single sheet of a valid municipal referendum petition can have the appropriate heading and a properly notarized verification statement. This, however, is not required if the petition is in one of the above forms and, of course, would be required if every sheet is circulated by a different person.

Id. at 145-46.

[¶ 11.] In Baker, we again discussed the importance of the statutory verification requirements of SDCL 2-1-10.

SDCL 2-1-10 requires the circulator to make and attach to the petition an affidavit. This affidavit establishes the genuineness of the signatures on the petition, Morford v. Pyle, 53 S.D. 356, 360, 220 N.W. 907, 909 (1928), and by attaching the verification statement to the end of the petition, the circulator is attesting to the genuineness of all the signatures on the entire petition. This requirement, coupled with the heading requirements of the ... two forms [that constitute valid multi-page petitions when circulated by one individual], is sufficient to prevent the inclusion or introduction of petition sheets ... circulated by ghost-circulators as was the case in Nist v. Herseth, 270 N.W.2d 565 (S.D.1978).

Id. at 146. Therefore, based solely on our prior holding in Baker, it would appear that Anderson’s petitions would be valid. Moreover, our statutes have traditionally indicated that referendum petitions are to be liberally construed as being in compliance with the law. See SDCL 2-1-11 (1939); 9-20-10 (1957) (formerly SDC § 45.1012 (1939)). Since our decision in Baker, however, it is apparent from amendments made to the statutes that the legislature intended to increase the stringency of petition verification requirements.

[¶ 12.] In addition to SDCL chapters 9-20 and 2-1, the provisions of SDCL chapters 12-1 and 9-13 are also applicable to municipal referendum elections. In defining petition, SDCL 12-1-3(8) states, “If multiple sheets of paper are necessary to obtain the required number of signatures, each sheet shall be self-contained and separately verified by the circulator[.]” SDCL 12-1-3(8) (2000). SDCL 9-13-11 provides, “[A] petition may be composed of several sheets, which shall have identical headings and shall be verified under oath by the persons circulating it, attesting the legality of the signatures thereon.” SDCL 9-13-11 (1990). SDCL 2-1-9, amended since we cited it in Baker, now provides, “A single petition may be made up of one or more papers, EACH having the requisite heading and verification.” SDCL 2-1-9 (1986) (emphasis added).

[¶ 13.] When reading the existing applicable statutes together, it is clear that the legislature intended that in order to be valid, each sheet of paper in a circulated petition shall have a heading and a verification block. Although our statutes indicate that petitions are to be liberally construed, the fact that not one but several more recently enacted applicable statutes have set out verification requirements for each sheet of paper, clearly articulates the legislature’s overriding concern for the integrity of signature verification.

[¶ 14.] The legislature has also mandated that the State Board of Elections promulgate rules prescribing the referendum petition format. SDCL 2-1-3, 2-1-10, 9-20-9, 12-1-3(8), and 12-1-9. The format for municipal referendum petitions is published under ARSD 5:02:08:16. This form, like all other South Dakota election petition formats, follows the statutory requirement that each page of a petition must include a heading and a verification block.

[¶ 15.] The record indicates that 19 petitions were circulated and subsequently submitted by Anderson and others. The petitions were multi-page and bound by a staple. The heading took up all of the first two pages and part of the third. The instructions and several signature lines were included on the third page. Varying numbers of additional signature pages without heading or verification block were included in each petition. The final signature page contained the introduction to a verification block with the circulator’s signature and notarization running over onto a final additional page. These petitions do not conform to the unambiguous statutory requirements.

[¶ 16.] Affirmed.

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

[¶ 18.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice, disqualified.

      . In Baker, we also held that under the South Dakota Constitution Article III, § 1, both legislative and administrative acts are subject to referendum election. 372 N.W.2d at 148-49. This part of the decision in Baker was later abrogated by legislation excluding administrative decisions from the referendum process. See 1986 SD Laws ch 73, §§ 1-3 codified at SDCL 9-20-18, 9-20-19 and 7-18A-15.1 respectively.

      . SDCL 12-1-2 provides:
      The provisions of this title apply to ... municipal ... elections unless otherwise provided by the statutes specifically governing their elections or this title.

      . SDCL 9-20-14 provides:
      The elections provided for in this chapter shall be governed by the provisions of chapter 9-13....

      . A thorough review of the statutes applicable to the issue at question in this case reveals our legislature's unmistakable concern for the potential that unverified signatures could be included in any petition, consisting of multiple sheets of paper that lacks verification on any sheet of paper therein. The onus thus falls on the petitioner to insure that each sheet of paper in a multiple-sheet petition is a self-contained document in compliance with our statutes and regulations.


text:
    2006 SD 110
    Ivan R. FULLER, Plaintiff and Appellant, v. James CROSTON and Patricia Croston, and Coldwell Banker GKR & Associates, by and through Janey Johnson, Defendants and Appellees.
    No. 23919.
    Supreme Court of South Dakota.
    Argued Oct. 2, 2006.
    Decided Dec. 6, 2006.

      Patrick J. Glover of Danforth & Meier-henry, LLP, Sioux Falls, South Dakota, Attorneys for appellant.
    Stephen C. Landon Michael A. Henderson of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for appellees, Coldwell Banker GKR & Associates/Janey Johnson.
    Joel D. Vos Patrick L. Sealey of Heid-man, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, LLP, Sioux City, Iowa, Attorneys for appellees, James & Patricia Croston.
   MILLER, Retired Justice.

[¶ 1.] This is an appeal from a summary judgment granted to sellers in an action by a home buyer alleging that sellers had not fully and adequately disclosed defects in the property as required by law. We affirm in part, reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] In the fall of 2002, Ivan R. Fuller began looking for a house to purchase in Sioux Falls. He hired real estate agent Margo Middlen to assist him. She showed Fuller a home owned by James and Patricia Croston. Crostons had been the sole owners of the house since its construction. Being interested in purchasing the home, Fuller received from Crostons a signed and completed seller’s property disclosure statement required by SDCL 43-4-38.

[¶ 3.] The disclosure statement indicated that the home had not experienced any water penetration problems. However, when Crostons signed the disclosure statement in November 2002 they were aware of two to three occasions between 1969 and 1977 when water had seeped into the basement. They maintain that they did not include this information in the disclosure statement on the recommendation of their real estate agent, Janey Johnson, who allegedly advised Crostons that if they believed the problem was fixed they did not have to disclose it. She denies these allegations. Crostons, believing that the water problems had been resolved, did not disclose the prior seepage on the disclosure statement. Their disclosure statement also indicated there were no cracks in the interior walls of the house. However, Crostons were aware of some cracks in the walls in the basement behind the washer and dryer. They puttied and painted over these cracks two to three years before selling the house to Fuller.

[¶ 4.] Prior to executing the purchase agreement, Fuller visited the home in company with Crostons. He noticed some flaking on one of the basement walls. According to Fuller, “the painting was kind of rough and you could tell there had been some moisture on the cement block and the paint.” When he asked about this, Crostons informed Fuller of a “little bit of water there sometime back.” They told him that they had experienced some water in the basement on two to three occasions between 1969-77, but they had not experienced any additional water problems since adding a sunroom to the home in 1977. Fuller also noticed some “roughness of the paneling in the family room.” Crostons explained that when they added a sunroom and a garage they had some water come into the basement. As a result, they did landscaping to seal off the water and also placed wood paneling over the drywall in the basement.

[¶ 5.] On November 18, 2002, after the conversation with Crostons about water in the basement, Fuller still offered to purchase Crostons’ home for $158,000. Cro-stons accepted this offer and a purchase agreement was finalized. The purchase agreement provided that Fuller would have ten days to complete a professional home inspection and notify Crostons of any unacceptable conditions discovered. Under the agreement, if Fuller did notify Crostons of any such concerns, the parties would have two days to negotiate a subsequent agreement concerning any issues raised by the inspection. If no such agreement could be reached, the purchase contract would terminate.

[¶ 6.] Fuller hired David Kemper of Kemper Inspection Services to perform the inspection. Kemper completed the inspection and issued a report on November 21, 2002. Fuller read through the entire inspection report and noticed several areas of concern. The Kemper report revealed that the garage roof was sagging and suggested adding a beam under the rafters. The report also noted a small horizontal crack and minor bowing at the north and south foundation walls. The report explained that the north wall had been patched and there was no new cracking. According to the inspection report, this was not unusual and was of no structural significance at the time. The inspection report further indicated some signs of past dampness in the basement which appeared to be old.

[¶ 7.] On November 29, 2002, Fuller and Crostons executed an addendum to the purchase agreement designed to address the issues raised by the inspection. In the signed addendum, Crostons specifically agreed “to jack and add support beam to garage roof before closing.” Fuller claims that the intention was to have the garage roof fixed. The purchase agreement included an integration clause stating:

This purchase agreement, any attached exhibits and any addenda or amendments signed by the parties, shall constitute the entire agreement between Purchaser(s) and Seller(s), and supersedes any other written or oral agreements between Purchaser(s) and Seller(s). This Purchase Agreement can be modified only in writing signed by the Purchaser(s) and Seller(s).

The cracking and dampness issues raised by the inspection report were not addressed by the addendum, because Kem-per felt these matters were not significant. Pursuant to the addendum, Crostons hired Ron Lembcke to address the sagging of the garage roof. Lembcke jacked and added a support beam to the garage roof as recommended in the inspection report. After Lembcke completed the work, Fuller personally inspected the roof and confirmed that the sagging was eliminated. Fuller did not consult a professional inspector to ensure the garage was fixed properly.

[¶ 8.] On January 17, 2003, the parties closed the sale on the home. Janey Johnson was present at the closing, but she made no representations to Fuller (then or any other time) concerning the condition of the home. By August 2003, Fuller was completely moved into the home. He did not notice anything that gave him cause for concern about the condition of the home until June 16, 2004. On that date, the total rainfall for Sioux Falls was approximately eight inches. At some point during or immediately after this rainfall, Fuller noticed water entering his basement, but could not determine precisely where it was coming in. He stated that the water appeared to be “seeping in around the foundation and the walls.” The water created “puddles here and there” until the carpet was largely saturated.

[¶ 9.] Fuller contacted Roy Johnson, a contractor, to evaluate and remedy the water problem. When Johnson removed some of the paneling in the basement, the “stuff behind the paneling crumbled” in his hands. Johnson advised Fuller that it appeared there had been previous water penetration in the home. He blamed the water infiltration on the existence of cracks in the home’s foundation and bowing of the walls. He also told Fuller that there had been major water damage in the past and that frequent water problems would persist unless action was taken. Johnson then installed drain tile around the perimeter of the basement, a sump pump and reinforced the foundation walls. Fuller also purchased and installed new padding and carpet for the basement.

[¶ 10.] At about the same time Fuller encountered the water issues, he noticed the garage roof was sagging once again. He contacted Duane Boice, an engineer, to evaluate the roof. Boice advised Fuller that installation of the support beam actually weakened the roof and made it worse. Boice explained that the roof would have to be fixed, or it would collapse. Fuller then hired Able Construction to repair the roof.

[¶ 11.] It is undisputed that prior to the purchase, based on Crostons’ oral disclosures, Fuller knew about the flaking paint and some prior water penetration problems in the basement. He was also aware of minor bowing and a small horizontal crack on the north and south wall, including the small crack behind the washer and dryer that had been puttied over. These were discovered through Kemper’s inspection prior to closing. Only after the heavy rain did Fuller learn of damage behind the paneling on all four walls in the basement and rust at the bottom of the support posts. Crostons contend that they were unaware of the damage behind the paneling on the basement walls, and that Fuller was aware of all the other issues before the sale. Fuller asserts he was not made aware of the extent of the previous water damage or all of the cracks in the basement walls. He also claims Crostons were aware of damage behind the paneling.

[¶ 12.] On April 29, 2005, Fuller filed a complaint against Crostons, Janey Johnson and Coldwell Banker GKR & Associates (collectively defendants). He alleged that Crostons failed to properly disclose prior water penetration in the basement, failed to disclose cracks in some of the walls, and breached an addendum to the purchase agreement relating to the garage roof.

[¶ 13.] The circuit court entered summary judgment in favor of defendants, determining that Fuller “knew there had been prior water damage and he knew there had been cracking. He knew there had been puttying of cracks and he knew that the paneling on the one wall had a bulge in it because he specifically noticed that.” The court found “sufficient disclosure of the problems that had occurred in the house so that Fuller was aware of what the potential problems were.”

[¶ 14.] Fuller appeals to this Court, raising three issues:

1. Whether the circuit court erred in concluding that there was no genuine issue of material fact concerning whether Crostons’ disclosure complied with the statutory requirements of SDCL chapter 43^1.
2. Whether the circuit court erred in concluding that there was no genuine issue of material fact concerning breach of the purchase agreement addendum relating to the garage roof.
3. Whether the circuit court erred in concluding that there was no genuine issue of material fact concerning whether Janey Johnson of Coldwell Banker GKR <& Associates is liable for misrepresentation and/or nondisclosure.

STANDARD OF REVIEW

[¶ 15.] Our review of a circuit court’s decision on summary judgment is well settled:

Summary judgment is authorized if 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. We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Summary judgment will be affirmed if there exists any basis which would support the trial court’s ruling.

Schwaiger v. Avera Queen of Peace Health Services, 2006 SD 44, ¶ 7, 714 N.W.2d 874, 877 (citations omitted) (emphasis in original).

ANALYSIS AND DECISION

[¶ 16.] 1. Whether the circuit court erred in concluding that there was no genuine issue of material fact concerning whether the Crostons’ disclosure complied with the statutory requirements of SDCL chapter 43-4.

Good Faith Disclosure

[¶ 17.] Fuller claims genuine issues of material fact exist as to whether a full and complete disclosure of defects was made. He contends he was not made aware of the extent of water damage or cracks in the basement either orally or otherwise. He also maintains that Cro-stons’ oral disclosures did not comply with or satisfy the mandates of South Dakota’s disclosure laws.

[¶ 18.] “A seller of residential property is required to complete a copy of the statutory disclosure statement.” Parmely v. Hildebrand (Parmely II), 2001 SD 83, ¶ 8, 630 N.W.2d 509, 512 (citing SDCL 43-4-38). Pursuant to SDCL 43^1-38, “[t]he seller of residential real property shall furnish to a buyer a completed copy of the disclosure statement before the buyer makes a written offer.” Also, a mandatory disclosure form is provided for sellers in SDCL 43-1-44. Engelhart v. Kramer, 1997 SD 124, ¶ 10, 570 N.W.2d 550, 552. “The statutes require a complete and truthful disclosure made in good faith, not a disclosure simply sufficient to put the buyer on notice of the defects.” Parmely v. Hildebrand (Parmely I), 1999 SD 157, ¶ 9, 603 N.W.2d 713, 717 (emphasis in original). Further, “as per SDCL § [§ ] 43-4-41 and 43444, a seller’s ‘good faith’ is determined under a reasonable person standard.” Engelhart, 1997 SD 124, ¶ 20, 570 N.W.2d at 555.

[¶ 19.] Crostons admit they had knowledge of previous water damage and a crack in the basement at the time they signed the disclosure statement, and that they did not reveal this knowledge on the disclosure statement. They contend that disclosure of these defects was not necessary. First, they claim their real estate agent (Janey Johnson) advised them not to disclose the prior water penetration because the problems occurred so long ago and were believed to have been fixed. However, the disclosure form mandated by statute simply asks, “have you experienced any water penetration problems in the walls, windows, doors, basement, or crawl space?” Crostons checked “no” to this question. By its plain terms, the question does not ask only for ongoing water penetration problems. Indeed, it is silent as to whether the problems have been fixed or persist. The disclosure statement simply asks if the sellers “experienced” water penetration problems. Crostons own admissions reveal they had.

[¶ 20.] Second, Crostons contend that disclosure of the crack was not necessary because it appeared insignificant to them. They also claim that their understanding of the question related only to cracks in the sidewalk and driveway. Again, the disclosure form provided in SDCL 44-344 asks, “are there any interior cracked walls or floors, or cracks or defects in exterior driveways, sidewalks, patios, or other hard surface areas.” The disclosure question does not qualify the cracks in any manner, and it does not ask for significant cracks only. Rather, it asks for cracks in the walls and floors as well as those in the sidewalk and driveway. Based on these facts, viewed in a light most favorable to Fuller, it does not appear Crostons completed the disclosure statement truthfully, completely, and in good faith as required by South Dakota’s disclosure laws. At the very least, there is a genuine issue of material fact whether they did so.

Oral Disclosures

[¶ 21.] Despite the absence of completeness and candor in the disclosure statement, Crostons contend that they nevertheless fulfilled the disclosure requirements of SDCL chapter 434. They claim that their oral disclosures to Fuller of prior water penetration alleviated any earlier misrepresentation or omission in the disclosure statement. Whether an oral disclosure is sufficient to fulfill South Dakota’s disclosure requirements is a matter of first impression.

[¶ 22.] Again, SDCL 43444 provides a mandatory written form that “shall be used for the property condition disclosure statement.” Also, SDCL 43-4-38 requires written amendments to the property condition disclosure statement. That statute provides in relevant part:

If after delivering the disclosure statement to the buyer or the buyer’s agent and prior to the date of closing for the property or the date of possession of the property, whichever comes first, the seller becomes aware of any change of material fact which would affect the disclosure statement, the seller shall furnish a written amendment disclosing the change of material fact.

SDCL 434-38. The statutes are otherwise silent as to the issue of oral or written disclosures. This Court has held that “[statutory disclosure statements essentially create a contract between the parties to a land sale.” Pannely II, 2001 SD 83, ¶ 6, 630 N.W.2d at 512 (citing Mahan v. Avera St Luke’s, 2001 SD 9, ¶ 15, 621 N.W.2d 150, 154). Fuller argues that this contract must be in writing, and that any modifications to the written contract must also be in writing.

[¶ 23.] The Court must look to the purpose of South Dakota’s disclosure laws in considering this issue. One obvious purpose of the disclosure statutes is “to provide prospective buyers with information about material defects known to the seller concerning the property.” Coughlin v. Gustafson, 332 Ill.App.3d 406, 265 Ill.Dec. 493, 772 N.E.2d 864, 869 (2002) (citation omitted). Another purpose, however, would be “to get sellers to give buyers the written disclosure statement.” Bohm v. DMA Partnership, 8 Neb.App. 1069, 607 N.W.2d 212, 219 (2000). In Lucero v. Van Wie, this Court held “ ‘the purpose of the statute is to facilitate private transactions rather than impose regulations for the general public benefit.’ ” 1999 SD 109, ¶ 14, 598 N.W.2d 893, 897 (quoting Loughrin v. Superior Court 15 Cal.App.4th 1188, 1194, 19 Cal.Rptr.2d 161, 164 (1993)).

[¶24.] The allowance of oral disclosures would defeat the purpose and clear language of the statute requiring written amendments as well as the statute providing the mandatory form. Were we to conclude that oral disclosures were sufficient to satisfy the disclosure statutes, these statutes would effectively be rendered moot. We are not willing to do so. That is the prerogative of the Legislature. Reliance/Causation

[¶ 25.] Crostons contend Fuller’s knowledge of previous water damage, cracking and roughness in the paneling, which was based on oral disclosures, inspections and observations, defeats their liability. They claim Fuller’s knowledge of the defects demonstrates a lack of reliance on the incorrect disclosure statement, and without reliance, the violation of the disclosure statute was not the cause of Fuller’s damages. Whether a lack of reliance on the disclosure statement can defeat a seller’s liability is also a matter of first impression in South Dakota.

[¶ 26.] SDCL 43-4-42 provides in pertinent part, “a person who intentionally or who negligently violates §§ 43-4-37 to 43-4-44, inclusive, is liable to the buyer for the amount of the actual damages and repairs suffered by the buyer as a result of the violation or failure.” (emphasis added). This language seems to imply that reliance and causation are necessary elements for a cause of action based on a failure to comply with the disclosure statement requirements.

[¶ 27.] Several surrounding jurisdictions have discussed whether reliance on the property condition disclosure statement is necessary to create liability. For instance, an Illinois court held, “[a] seller who knowingly makes a false statement is subject to liability under the Act; no exception is made because of a buyer’s knowledge of the defect.” Woods v. Pence, 303 Ill.App.3d 573, 236 Ill.Dec. 977, 708 N.E.2d 563, 565 (1999) (citing 765 ILCS 77/25 (West 1996)). The Woods court did provide, however, that a buyer’s knowledge was relevant to the amount of damages awarded because any defect of which the buyer was aware would be reflected in the purchase price of the house, thereby reducing those damages. Id. Another Illinois court “reject[ed] defendant’s inference that plaintiffs’ actual notice of any alleged problems is a bar to their cause of action under the Disclosure Act.” Coughlin, 265 Ill.Dec. 493, 772 N.E.2d at 871. The Coughlin court found the plaintiffs alleged actual notice did not support a finding of summary judgment in defendant’s favor. Id.

[¶ 28.] Furthermore, a Nebraska court agreed with the Woods analysis and held “the buyer’s knowledge of undisclosed damage in a cause of action for failure to provide a disclosure statement is relevant on the extent of damages, but does not provide a total defense.” Bohm, 607 N.W.2d at 219 (see also Burgess v. Miller, 9 Neb.App. 854, 621 N.W.2d 828, 884-85 (2001)). That court reasoned this was “logical and consistent with the obvious purpose of [the] statute, which at its core is to get sellers to give buyers the written disclosure statement.” Id. Nebraska’s disclosure statute allows for recovery of actual damages, which the buyer has sustained as a result of the violation of the statute. Id. (citing NebRevSt 76-2,120(11)) (emphasis added).

[¶ 29.] It should be noted that the authority provided by Crostons, which requires reliance on the disclosure statement before liability may be imposed, is based upon fraud and deceit causes of action. This authority is unpersuasive because fraud and deceit require justifiable reliance on the representation as a necessary element. Brandriet v. Norwest Bank South Dakota, N.A. 499 N.W.2d 613, 616 (S.D.1993) (citations omitted). South Dakota’s disclosure statutes do not explicitly do so. Fuller is not appealing the summary judgment disposition of his fraud and fraudulent concealment claims. He is appealing the disposition of his claim under SDCL chapter 43-4. The claims have different elements. See Jensen v. Sattler, 696 N.W.2d 582, 588 (Iowa 2005) (holding proof of fraud is not required for buyer to recover under Iowa Real Estate Disclosure Act) (citations omitted).

[¶ 30.] In this case, Fuller’s knowledge is based upon oral disclosures from Cro-stons and an inspection he hired conducted. By requiring reliance on the disclosure statement, this Court would allow sellers to misrepresent defects in the disclosure statement and cover themselves later by making oral disclosures. Also, this Court would effectively penalize the prudent buyer who conducts an independent inspection and investigation. Anything the buyer learned or was put on notice of would defeat a cause of action for a disclosure-statement violation by the seller. A seller could simply claim the buyer relied on the inspection and investigation instead of the disclosure statement. The legislative intent of protecting consumers would not be upheld if the statutes were construed in such a manner.

[¶ 31.] Therefore, this Court agrees that a buyer’s knowledge of undisclosed damage in a cause of action for violation of the disclosure statutes does not provide a complete defense. However, the buyer’s knowledge may be relevant to the amount of damages awarded because any defect of which the buyer was aware would be reflected in the purchase price of the house, thereby reducing damages. This raises a genuine issue of material fact concerning the extent of damages resulting from the violation of the disclosure statutes. Thus, the circuit court’s summary judgment disposition of this claim is reversed and remanded.

[¶ 32.] This conclusion, however, should not imply that strict liability results from a seller’s nondisclosure under SDCL 43-4-38. Engelhart, 1997 SD 124, ¶ 18, 570 N.W.2d at 554. Strict liability is not the requisite standard under South Dakota’s disclosure statutes, because liability attaches only if the nondisclosure is negligent or intentional. Id. Therefore, a mere nondisclosure without some form of culpability will not result in liability. We hold that a buyer’s knowledge does not affect liability and is not a complete bar to the cause of action. However, according to SDCL 43-4-42, a buyer’s knowledge is relevant to the extent of damages because recoverable damages are only those suffered “as a result of’ the nondisclosure. Damages, therefore, may still be affected by the buyer’s knowledge. Unlike damages, however, liability is not limited by the “as a result of the violation or failure” language, so it cannot be completely defeated by a buyer’s knowledge. Instead, liability is a result of the intentional or negligent nondisclosure.

[¶ 33.] 2. Whether the circuit court erred in concluding that there was no genuine issue of material fact concerning breach of the purchase agreement addendum relating to the garage roof.

[¶ 34.] Initially, it should be noted that, unlike the alleged water penetration and cracking defects, the issues concerning the garage roof do not relate to nondisclosure. Rather, this claim is based on a breach of contract. Fuller alleges the purchase agreement addendum required Crostons to “fix” the garage roof. Cro-stons contend that the addendum explicitly stated what was required of them — to jack and add a support beam to the garage roof before closing. The addendum provides, “sellers agree to jack and add support beam to garage roof before closing.”

[¶ 35.] “Contract interpretation is a question of law reviewable de novo.” Ziegler Furniture and Funeral Home, Inc. v. Cicmanec, 2006 SD 6, ¶ 14, 709 N.W.2d 350, 354 (citation omitted). “ “When the meaning of contractual language is plain and unambiguous, construction is not necessary. If a contract is found to be ambiguous the rules of construction apply.’ ” Id. (quoting Pesicka v. Pesicka, 2000 SD 137, ¶ 6, 618 N.W.2d 725, 726 (citation omitted)). “ ‘A contract is ambiguous when application of rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct.’ ” Id. ¶ 16, 709 N.W.2d at 355 (quoting Alverson v. Northwestern Nat’l Cas. Co., 1997. SD 9, ¶ 8, 559 N.W.2d 234, 235 (citations omitted)). Further,

[a] contract is not rendered ambiguous simply because the parties do not agree on its proper construction or their intent upon executing the contract. Rather, a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.

Id. (citations omitted). “This Court need only look to the language that the parties used in the contract to determine their intention.” Id. (citation omitted). “ ‘If that intention is clearly manifested by the language of the agreement, it is the duty of this Court to declare and enforce it.’ ” Id. (quoting In re Estate of Stevenson, 2000 SD 24, ¶ 14, 605 N.W.2d 818, 821 (citations omitted)).

[¶ 36.] In this case, when viewed objectively, the language used in the purchase agreement addendum is clear and capable of only one meaning, i.e. Crostons were to jack and add a support beam to the garage roof before closing. Fuller and Crostons executed this addendum after the inspection revealed the sagging roof. The inspection report recommended adding a support beam to fix the problem. Cro-stons fulfilled this recommendation, and Fuller was satisfied upon completion of the work. Thus, we affirm the circuit court’s decision that Fuller raised no genuine issue of material fact on the issue of whether Crostons breached the purchase agreement addendum.

[¶ 37.] 3. Whether the circuit court erred in concluding that there was no genuine issue of material fact concerning whether Janey Johnson of Coldwell Banker GKR & Associates is liable for misrepresentation and/or nondisclosure.

[¶ 38.] Fuller contends there are genuine issues of material fact concerning Johnson’s and her employer’s liability for misrepresentation and/or nondisclosure. SDCL chapter 36-21A provides rules and regulations for real estate licensing. A section of this chapter states in part, “no licensee is liable for a misrepresentation of the licensee’s client arising out of the agency agreement unless the licensee knew of the misrepresentation.” SDCL 36-21A-148. A licensee is defined as “any person holding a license issued pursuant to this chapter.” SDCL 36-21A-1(12). A client is defined as, “any person, including a seller/landlord or a buyer/tenant, who has entered into an agency relationship with a real estate licensee.” SDCL 36-21A-l(6). In this case, Johnson is a licensed real estate agent and admits to representing Crostons in the sale of their home.

[¶ 39.] Taking the evidence in the light most favorable to Fuller, Crostons assert Johnson told them not to disclose the prior water damage to the home on the disclosure statement. And, as stated earlier, Johnson denies that assertion. Crostons claim she advised them not to disclose because they told her the damage occurred many years ago and was fixed. Johnson, therefore, allegedly was aware of prior water penetration in the home. If that is true, she not only failed to prevent Cro-stons’ nondisclosure, but actually encouraged it. This observation, however, does not end our inquiry. According to SDCL 36-21A-148, a licensee is liable for misrepresentations of the client if the licensee had knowledge of the misrepresentation. Therefore, before Johnson could be held liable, the Court must determine whether the nondisclosure of prior water damage was a misrepresentation by Crostons.

[¶ 40.] “Misrepresentations” is not defined by SDCL chapter 36-21A. Fuller offers Black’s Law Dictionary definition:

Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists.

(6th ed. 1990). The crux of this issue is whether reliance is an element of misrepresentations as used in SDCL 36-21A-148. If so, Fuller’s failure to rely on the misrepresentation of no prior water damage in the disclosure statement defeats his claim against Johnson. Johnson attempts to equate misrepresentation as used in SDCL 36-21A-148 with the elements for a cause of action for deceit or negligent or intentional misrepresentation. However, this is not how the term is used in the statute. This Court has determined that a misrepresentation is “essentially a false statement of material fact.” In re Discipline of Dorothy, 2000 SD 23, ¶66, 605 N.W.2d 493, 513 (citation omitted). Thus, reliance on the disclosure statement is not necessary for Johnson to be held liable for Crostons’ false statement of no prior water damage. Therefore, we reverse the circuit court’s summary judgment disposition of Fuller’s claim against Johnson and Cold-well Banker, as a genuine issue of material fact remains concerning Johnson’s knowledge of the claimed misrepresentation.

[¶ 41.] Lastly, Fuller’s request for appellate attorney fees is denied. “[Attorney fees are allowed when there is a contractual agreement that the prevailing party is entitled to attorney fees or there is statutory authority authorizing an award of attorney fees.” Credit Collection Services, Inc. v. Pesicka, 2006 SD 81, ¶ 6, 721 N.W.2d 474, 476 (citations and emphasis omitted). There is neither statutory authority nor a contractual agreement in this case. Thus, attorney fees are denied.

[¶ 42.] Affirmed in part, reversed in part, and remanded.

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

[¶ 44.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice, disqualified.

      . Janey Johnson is a licensed real estate agent who works as an agent with Coldwell Banker GKR & Associates.

      . According to a FEMA Report, Sioux Falls accumulated a total of 12.74 inches of rain from May 17 to June 16 of 2004, a record amount for a 31-day period. An Associated Press release published at the time described the resulting flooding as the worst Sioux Falls had experienced in years, causing approximately $500,000 worth of damage to the city’s public infrastructure. According to the release, approximately 200 of the City’s residents were displaced from their homes.

      . Crostons do not allege they discussed this issue with their real estate agent.

      . Fuller also relies on SDCL 36-21A-134 to hold Johnson liable for nondisclosure. However, Fuller does not fit the definition of customer provided by SDCL chapter 36-21A, so this statute is not applicable.

      . According to SDCL 15-17-38, the only attorney fees allowed by statute are divorce, annulment of marriage, determination of paternity, separate maintenance, support or alimony.


author: HECHT, Justice.

text:
    Wayne ATWOOD, Arthur Jennings, Daniel Bellman, and John Carmody, on behalf of themselves and all present and future Iowa Code Chapter 229A pretrial detainees, and Loren G. Huss, Jr., John Henry Nachtigall, Timothy Gusman and Lanny Taute, on behalf of themselves and those similarly situated, Plaintiffs, v. The Honorable Thomas J. VILSACK, et al., Defendants.
    No. 05-0485.
    Supreme Court of Iowa.
    Dec. 29, 2006.

      Randall C. Wilson of the Iowa Civil Liberties Union Foundation, Des Moines, and Jon M. Kinnamon of Kinnamon, Kinna-mon, Russo, Meyer & Keegan, Cedar Rapids, for plaintiffs.
    Thomas J. Miller, Attorney General, Gordon E. Allen, Deputy Attorney General, and Mark Hunacek, Assistant Attorney General, for defendants.
   HECHT, Justice.

The United States District Court for the Southern District of Iowa has certified to us the following question: Are pre-trial detainees being held pursuant to Iowa Code chapter 229A (2005) entitled to bail under either the common law or the Iowa Constitution?

I. Background Facts and Proceedings.

The petitioners are a certified class consisting of “ ‘[a]ll present and future pretrial detainees held by the Iowa Department of Corrections, awaiting hearing on their Iowa Code [cjhapter 229A petition, or who were committed pursuant to Iowa Code [cjhapter 229A.’ ” Atwood v. Vilsack, 338 F.Supp.2d 985, 990 (S.D.Iowa 2004). They filed suit in the United States District Court for the Southern District of Iowa against the State of Iowa’s departments and officials responsible for implementing the pre-trial detention provisions of Iowa Code chapter 229A, the Sexually Violent Predator (SVP) Act. Id. at 990-91. The petitioners claimed: (1) the State’s failure to initiate SVP proceedings until immediately prior to the discharge of criminal sentences violated their federal right to a speedy trial and right to be free from imposition of double jeopardy, (2) pre-trial detention was in contravention of chapter 229A, (3) pre-trial detention violated their federal and state due process rights to bail, (4) pre-trial detention violated their rights under the Americans with Disabilities Act (ADA), and (5) the conditions of their detention violated their federal due process rights. Id. at 993-1008. The court certified the question of state law to us. Id. at 1008.

Petitioners urge us to hold the common law entitles detainees to bail during the pre-trial stage of proceedings brought under chapter 229A. They also assert numerous provisions of the Iowa Constitution entitle them to bail during that stage: article 1, section 12 (bail guarantee clause); article 1, section 17 (proscribing excessive bail); article 1, section 9 (due process of law); article 1, section 10 (rights of persons accused); article 1, section 21 (banning bills of attainder); article 1, section 8 (protecting personal security); article 1, section 1 (inalienable rights clause); and article 1, section 25 (unenumerated rights clause). For the reasons that follow, we conclude persons detained before trial pursuant to Iowa Code chapter 229A are not entitled to bail under either the common law or under these provisions of the Iowa Constitution.

II. Discussion.

A. Common Law Bail Claim.

We have previously acknowledged that although not expressly declared by our statutes or constitution to be part of Iowa law, “the common law has always been ... in force in Iowa.” Iowa Civil Liberties Union v. Critelli, 244 N.W.2d 564, 568 (Iowa 1976). The petitioners claim a common law right to bail in the interim between the Iowa district court’s finding of probable cause to believe they are sexually violent predators and the subsequent trials to determine whether they are, in fact, sexually violent predators. They cite Blackstone for the proposition that at common law all defendants in civil cases were bailable. See William Blackstone, 4 Commentaries 294 (1769). Because we are not persuaded, however, that the common law authorized civil commitment of sexually violent predators for long-term care and treatment, any reference in Blackstone’s Commentaries to the availability of bail in all civil cases does not suggest a right to bail in the type of case now before us.

Furthermore, any common law claim of entitlement to pre-trial bail in a civil case of this type could not have survived our legislature’s enactment of chapter 229A. The common law may be repealed by implication in a statute that plainly expresses the legislature’s intent to do so. Critelli, 244 N.W.2d at 568; Wilson v. Iowa City, 165 N.W.2d 813, 822 (Iowa 1969). Our consideration of whether the legislature intended to prohibit bail at the pre-trial stage in SVP cases begins with the words of the statute.

The subject of bail is expressly addressed in only one section of the statute. Section 229A.5C(1) provides that persons who commit a public offense while detained pursuant to section 229A.5 or while subject to an order of civil commitment shall not be eligible for bail pursuant to section 811.1. The petitioners urge us to interpret section 229A.5C(1) as an expression of the legislature’s intent that detainees who have not committed a subsequent offense while detained or committed should be entitled to bail. We must reject the petitioners’ suggested interpretation of the statute, however, because we conclude section 229A.5C(1) has no application to this case. That section is intended to preclude access to bail in the criminal case filed as a consequence of a new offense committed by a person detained or subject to a civil commitment order. The petitioners in this case claim entitlement to bail in their civil SVP proceedings. See In re Bradford, 712 N.W.2d 144, 146-17 (Iowa 2006) (holding that the proceedings under the SVP Act are civil); In re Det. of Garren, 620 N.W.2d 275, 283-86 (Iowa 2000) (same).

Although chapter 229A does not expressly prohibit bail at the pre-trial stage in SVP cases, neither does it expressly authorize bail in such cases. Nonetheless, we discern from the way in which chapter 229A narrowly circumscribes release of detainees the legislature’s clear intention to deny bail at the pre-trial stage in SVP proceedings. The only instance in which the release of a detainee is authorized before commitment to a secure facility is when, after a hearing, the district court does not find probable cause to believe the detainee is a SVP. In that event, the detainee is not held over for trial and has no need for bail.

The only other detainees who may be released in SVP cases are those who qualify for discharge pursuant to section 229A.5B(1), which in turn authorizes the discharge of detainees under sections 229A.8 or 229A.10. See Iowa Code § 229A.5B(1). Section 229A.5B(1) provides:

A person who is detained pursuant to section 229A.5 or is subject to an order of civil commitment under this chapter shall remain in custody unless released by court order or discharged under section 229A.8 or 229A.10. A person who has been placed in a transitional release program or who is under release with or without supervision is considered to be in custody.

(Emphasis added.) Petitioners suggest that this section signals an intent that bail is available to detainees at the pre-trial stage. We disagree. Discharge under sections 229A.8 or 229A.10 may be achieved only after a trial has occurred, the detainee has been found beyond a reasonable doubt to be a SVP, and commitment to the department of human services for control, care and treatment has been ordered.

Once committed, “a rebuttable presumption exists that the commitment should continue.” Id. § 229A.8(1). Discharge of a detainee committed to a secure facility-may be ordered under section 229A.8 if the detainee’s condition is subsequently shown to be suitable for discharge. Similarly, a detainee committed to a secure facility may be discharged pursuant to section 229A.10 if it is shown that the person no longer suffers from a mental abnormality making it likely that the person will engage in predatory acts constituting sexually violent offenses. Discharge under sections 229A.8 or 229A.10 is a remedy available to a detainee only after (1) commitment has been ordered, and (2) the detainee’s mental condition has improved so that transfer to a transitional program, release with or without conditions, or discharge is appropriate. In summary, it is clear that the petitioners have no access to bail under chapter 229A because (1) the district court found probable cause to believe they are sexually violent predators, and (2) the remedies of release and discharge are not available at the pre-trial stage in the interim between a finding of probable cause and trial of the claim that petitioners are SVPs.

Yet another feature of chapter 229A compels us to conclude the legislature intended to preclude bail at the pre-trial stage. Section 229A.7(7) provides in relevant part: “Upon a mistrial, the court shall direct that the respondent be held at an appropriate secure facility until another trial is conducted.” This provision unmistakably discloses by implication the legislature’s intent that detention shall continue after the district court has made a finding of probable cause until the question of whether the detainee is in fact a SVP has been adjudicated. Accordingly, we conclude the legislature clearly intended chapter 229A to preclude bail for detainees at the pre-trial stage. Consequently, any claim to bail based upon common law that antedated the adoption of chapter 229A is without merit.

Finally, our conclusion that the legislature intended to deny bail to detainees at the pre-trial stage of SVP cases is strongly influenced by the legislative findings set out in section 229A.1. The statute was adopted “to protect the public, to respect the needs of the victims of sexually violent offenses, and to encourage full, meaningful participation of sexually violent predators in treatment programs.” Id. Admitting an individual to bail before trial when there is probable cause to believe he or she is a sexually violent predator would not further the legislature’s purposes. See Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779, 795 (Ct.App.1999) (noting that Arizona’s SVP statute does not require access to bail because of legislators’ concerns about public safety); Commonwealth v. Knapp, 441 Mass. 157, 804 N.E.2d 885, 890 (2004) (interpreting the Massachusetts SVP statute to require confinement without bail after a finding of probable cause, in part because of the legislative purpose of protecting the public).

B. Entitlement to Bail Under the Iowa Constitution.

i. Iowa Constitution Article 1, Section 9 (Due Process).

The certifying court in this case has concluded the denial of bail at the pretrial stage did not violate the petitioners’ substantive due process rights under the federal constitution. Atioood, 338 F.Supp.2d at 998. We are asked to decide the separate question whether petitioners are entitled to bail under the Due Process Clause in the Iowa Constitution. See Iowa Const, art. I, § 9 (stating “no person shall be deprived of life, liberty, or property, without due process of law”). “This court has traditionally considered the federal and state due process provisions to be equal in scope, import, and purpose.” In re Det. of Garren, 620 N.W.2d at 284 (citing In re Interest of C.P., 569 N.W.2d 810, 812 (Iowa 1997); Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 792 (Iowa 1994)). Although “[w]e have an interest in harmonizing our constitutional decisions with those of the Supreme Court when reasonably possible, ... we recognize and will jealously guard our right and duty to differ in appropriate cases.” State v. Olsen, 293 N.W.2d 216, 219-20 (Iowa 1980).

Substantive due process principles preclude the government “from engaging in conduct that ‘shocks the conscience,’ or interferes with rights ‘implicit in the concept of ordered liberty.’ ” United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697, 708 (1987) (citations omitted). To assess the petitioners’ substantive due process claim, we first define the nature of the involved right. In re Det. of Cubbage, 671 N.W.2d 442, 446 (Iowa 2003). “[F]reedom from physical restraint ‘has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’ ” Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 2079, 138 L.Ed.2d 501, 511-12 (1997) (quoting Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437, 448 (1992)). Although the liberty interest of an individual to be free from physical restraint has been described as “a paradigmatic fundamental right,” Knapp, 804 N.E.2d at 891, the Supreme Court has noted that the interest is not absolute. Hendricks, 521 U.S. at 356, 117 S.Ct. at 2079, 138 L.Ed.2d at 512. States, including Iowa, have “in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety.” Id. at 357, 117 S.Ct. at 2079, 138 L.Ed.2d at 512. Involuntary civil commitment statutes have withstood due process challenges if they authorize detention pursuant to proper procedures and evidentiary standards. Id. at 357, 117 S.Ct. at 2080, 138 L.Ed.2d at 512.

Petitioners do not advance here the broad notion that they have a due process right not to be involuntarily detained prior to the adjudication of their status under chapter 229A. They instead make the narrower claim that once detained, they have a due process right to bail at the pre-trial stage under the Iowa Constitution. The question whether the claimed right is fundamental is one of first impression for this court. In In re Detention of Garren, 620 N.W.2d 275 (Iowa 2000), we did not decide whether a detainee’s liberty interest is fundamental because we concluded chapter 229A passed muster even when judged under a strict scrutiny standard. Id. at 286. We also rejected Garren’s claim that substantive due process required placement of SVPs in the “least restrictive placement.” Id. at 285 (noting that “even if such a right did exist, it is not a ‘fundamental right’ ” (citation omitted)).

As in Garren, we conclude it is unnecessary for us to resolve the question whether the petitioners’ claimed interest is fundamental. Even under strict scrutiny analysis, chapter 229A comports with substantive due process standards. The state’s interest in detaining persons during the interim between the district court’s finding of probable cause and the trial of the SVP claim is compelling. It is an interest in protecting the public from “a small but extremely dangerous group” of persons who are highly likely to engage in “repeat acts of predatory sexual violence” if not detained. See Iowa Code § 229A.1; In re Det. of Williams, 628 N.W.2d 447, 458 (Iowa 2001) (finding a compelling state interest in “protecting society from a person prone to sexually assaulting children”); In re Det. of Garren, 620 N.W.2d at 286 (finding the confinement of sexually violent predators in a secure facility served the compelling State interest in “protection of the public”).

The restriction of liberty resulting from the denial of bail at the pre-trial stage in these cases is narrowly tailored. See City of Panora v. Simmons, 445 N.W.2d 363, 367 (Iowa 1989) (noting that a statute will survive strict scrutiny analysis only if it is narrowly drawn to serve a compelling state interest). Pre-trial detention without access to bail is limited to a specific category of dangerous persons who have been convicted of or charged with a sexually violent offense and who suffer from a mental abnormality that makes them likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility. See Iowa Code § 229A.2(11).

The significant procedural protections afforded detainees during the pre-trial stage in SVP cases strongly influence our determination that the statute is narrowly tailored. A person may not be detained under chapter 229A until after (1) the attorney general files a petition alleging that the person is a SVP and stating sufficient facts to support such an allegation (section 229A.4(1)), and (2) a district court has made a preliminary determination that the person named in the petition is a SVP (section 229A.5(1)). Once detained, the person is entitled to a hearing in the district court within seventy-two hours to determine whether probable cause exists to believe the detained person is a SVP. See id. § 229A.5(2). At the probable cause hearing, the detainee has the right to appear in person with counsel, challenge the preliminary finding of probable cause by presenting evidence, cross-examine the state’s witnesses, and access all petitions and reports in the possession of the court. See id. § 229A.5(2)(a)-(g). If, after the hearing, the district court finds probable cause to believe the detainee is a SVP, the detainee is entitled to a timely trial to determine whether he is, in fact, a SVP.

Our decision today is consistent with a series of prior decisions upholding chapter 229A against substantive due process claims under the Iowa Constitution. We have repeatedly held that civil commitment of a SVP does not violate substantive due process. In re Det. of Darling, 712 N.W.2d 98, 101 (Iowa 2006) (holding that civil commitment of a person with an untreatable condition was consistent with substantive due process under the Iowa Constitution); In re Det. of Betsworth, 711 N.W.2d 280, 289 (Iowa 2006) (same); In re Det. of Hodges, 689 N.W.2d 467, 470 (Iowa 2004) (holding that civil commitment on the basis of an antisocial personality disorder was consistent with substantive due process under the Iowa Constitution); In re Det. of Cubbage, 671 N.W.2d at 445-48 (finding no fundamental right to be competent during SVP statute proceedings and, thus, that commitment of incompetent people is consistent with substantive due process under the Iowa Constitution).

ii. Ioiua Constitution Article I, Section 12 (Bail Guarantee).

Iowa’s bail guarantee clause only applies to criminal cases. See Allen v. Wild,, 249 Iowa 255, 259, 86 N.W.2d 839, 842 (1957) (finding that the bail guarantee clause does not guarantee bail in civil extradition proceedings because the clause only has “reference to persons charged with offenses against the laws of the State of Iowa”); Orr v. Jackson, 149 Iowa 641, 643-44, 128 N.W. 958, 960 (1910) (holding that the bail guarantee clause is not applicable in a habeas corpus proceeding because such proceedings are civil); cf. Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779, 788 (Ct.App.1999) (finding that the Arizona Constitution’s bail guarantee only applies in the “criminal context”). Because petitioners are pre-trial detainees in civil commitment proceedings, not criminal proceedings, the bail guarantee clause does not entitle them to bail.

Hi. Iowa Constitution Article I, Section 17 (Excessive Bail).

Due to the similarity between the Federal and Iowa Excessive Bail Clauses, the Iowa Supreme Court “ ‘look[s] to the interpretations by the United States Supreme Court for guidance in interpreting [Iowa’s] clause.’ ” State v. Briggs, 666 N.W.2d 573, 584 (Iowa 2003) (citing State v. Izzolena, 609 N.W.2d 541, 547 (Iowa 2000)). The Federal Constitution’s Excessive Bail Clause only prohibits excessive bail in cases “where it is proper to grant bail”; it does not impliedly create a right to bail. Carlson v. Landon, 342 U.S. 524, 545, 72 S.Ct. 525, 537, 96 L.Ed. 547, 563 (1952). Because petitioners offer no reason for us to interpret the Iowa Constitution’s Excessive Bail Clause differently, we conclude that it does not create a right to bail, but instead only ensures that properly granted bail is not excessive. Accordingly, petitioners’ claim that the Iowa Excessive Bail Clause entitles them to bail must fail.

iv. Iowa Constitution Article I, Section 8 (Personal Security).

Iowa law is unclear regarding whether article I, section 8 applies in a civil context, such as commitment proceedings under chapter 229A. The Iowa Supreme Court generally interprets article I, section 8 of the Iowa Constitution to track federal interpretations of the Fourth Amendment. See State v. Jones, 666 N.W.2d 142, 144 (Iowa 2003). The United States Supreme Court has applied the Fourth Amendment in both civil and criminal contexts. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 49, 114 S.Ct. 492, 499, 126 L.Ed.2d 490, 500 (1993) (noting that the Fourth Amendment “placets] restrictions on seizures conducted for purposes of civil forfeiture”); United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 1060, 108 L.Ed.2d 222, 232 (1990) (observing that the “Fourth Amendment ... prohibits ‘unreasonable searches and seizures’ whether or not the evidence is sought to be used in a criminal trial”).

We recognize that we may interpret the Iowa Constitution differently, but the parties suggest no reason for us to do so. We accordingly hold that article I, section 8 applies in a civil context. Petitioners thus fall within the ambit of protection afforded by the personal security guarantee of article I, section 8.

We now turn to whether the seizure of petitioners was “reasonable” under article I, section 8. To determine whether governmental action is “reasonable” under this constitutional provision, the Iowa Supreme Court balances an individual’s interests with the State’s interests. State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). We find that the State’s pretrial seizure of petitioners is reasonable because the State’s weighty interest in protecting the public from an “extremely dangerous” class of people outweighs an individual’s interest in being free on bail for ninety days between a probable cause hearing and trial. See Iowa Code § 229A.1.

v. Iowa Constitution Article I, Section 10 (Rights of the Accused).

Article I, section 10 does not entitle petitioners to bail because this provision only applies to criminal proceedings. It protects only the rights of an “accused,” not the rights of an individual facing potential civil commitment pursuant to Iowa’s SVP statute.

In addition, even if this were a criminal proceeding, petitioners could not rely on article I, section 10. This provision does not include among its express protections a right to bail.

to. Iowa Constitution Article I, Section 21 (Bills of Attainder).

A bill of attainder “is a legislative determination that metes out punishment to a particular individual or a designated group of persons without a judicial trial.” State v. Phillips, 610 N.W.2d 840, 843 (Iowa 2000). Three elements comprise a bill of attainder: a specific legislative target, imposition of punishment, and absence of a judicial trial. Id.

The determinative element in this case is imposition of punishment. To assess whether a law imposes punishment, we look to the intentions of the legislature. See State v. Swartz, 601 N.W.2d 348, 351 (Iowa 1999) (noting that if a law is “designed to accomplish some other legitimate governmental purpose [besides imposition of punishment] it should stand”); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 396 (1995) (“What counts ... is the purpose and design of the statutory provision, its remedial goal and purposes, and not the resulting consequential impact, the ‘sting of punishment,’ that may inevitably, but incidentally, flow from it.”). By enacting Iowa’s SVP statute, the legislature did not intend to punish sexually violent predators. Rather, the stated purposes of the statute are to protect society and facilitate treatment of sexually violent predators. Iowa Code § 229A.1. Therefore, the SVP statute is not a bill of attainder that impermissibly denies petitioners the right to bail.

vii. Iowa Constitution Article I, Section 25 (Unenumerated Rights) and Article I, Section 1 (Inalienable Rightsj.

Petitioners’ claims that Iowa Constitution article I, section 25, the unenu-merated rights clause, and Iowa Constitution article I, section 1, the inalienable rights clause, entitle them to bail fail for essentially the same reason. Both the inalienable rights clause and the unenumer-ated rights clause secure to the people of Iowa common law rights that pre-existed Iowa’s Constitution. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 176 (Iowa 2004) (citing May’s Drug Stores v. State Tax Comm’n, 242 Iowa 319, 329, 45 N.W.2d 245, 250 (1950)) (“We have held [the inalienable rights clause] was intended to secure citizens’ pre-existing common law rights (sometimes known as ‘natural rights’) from unwarranted government restrictions.”); State ex rel. Burlington & Mo. River R.R. v. County of Wapello, 13 Iowa 388, 412 (1862) (concluding that the purpose of the unenumerated rights clause is to “bring ... unenumerated rights retained by the people, founded equally ... upon natural justice and common reason ... within the censorship of courts of justice ... when ... [the rights are] assailed”). To resolve this case, however, we need not determine whether a common law right to bail in civil commitment proceedings pre-existed the Constitution, as the petitioners urge us to do. Even if the right to bail in civil commitment proceedings pre-existed the Constitution and consequently falls within the ambit of the protections afforded by the unenumerated rights and inalienable rights clauses, the SVP statute is reasonable and, thus, constitutional.

It is well-established that the protections of Iowa’s inalienable rights clause are not absolute. See Gacke, 684 N.W.2d at 176. The clause does not prevent all legislative action taken pursuant to the police power that benefits the community and impacts an inalienable right (i.e. a common law or natural right). See id. Instead, it prevents only arbitrary, unreasonable legislative action that impacts an inalienable right. See id. (citing Gibb v. Hansen, 286 N.W.2d 180, 186 (Iowa 1979); May’s Drug Stores, 242 Iowa at 329, 45 N.W.2d at 250; Benschoter v. Hakes, 232 Iowa 1354, 1361, 8 N.W.2d 481, 485 (1943); State v. Osborne, 171 Iowa 678, 693, 154 N.W. 294, 300 (1915)).

We find that the unenumerated rights clause similarly prohibits not all legislative action, but instead only unreasonable action. The petitioners root their argument that the unenumerated rights clause entitles them to bail in the assumption that unenumerated rights are absolute and may not be the subject of legislative action, even if reasonable. This interpretation of the unenumerated rights clause would effectively disallow all legislative action as to all unenumerated rights. Such an interpretation of the unenumerated rights clause would substantially limit the power of the legislature to enact laws, such as the SVP statute, that protect the public.

Moreover, we have previously recognized that the unenumerated rights clause limits, not eliminates, the State’s power to legislatively impact unenumerated rights. In State ex rel. Burlington & Mo. River R.R. v. County of Wapello, we noted the theoretical inconsistency between two prevalent legal doctrines: “the doctrine that the Constitution allows the legislature the use of every power which it does not positively prohibit,” and the doctrine that the Constitution reserves to the people all rights “secured under our plan of government.” 13 Iowa at 413. An inconsistency arises in that a legislature with “full and uncontrolled sway” to act in all ways not specifically prohibited in the Constitution would inevitably infringe upon rights reserved to the people. Id. In Wapello, we concluded that while the legislature may take actions to benefit the community, the Iowa Constitution’s reservation of unenu-merated rights to the people limits “an abuse” of legislative power. Id. at 412-15.

Having concluded that the legislature may take reasonable action that impacts rights protected by the inalienable rights and unenumerated rights clause, we turn to whether the SVP statute is reasonable. Because of the State’s interests in rehabilitating sexually violent predators and protecting the public, we find that pre-trial detention under the SVP statute is a reasonable, and thus constitutional, exercise of legislative power.

III. Conclusion.

We conclude that pre-trial detainees being held pursuant to Iowa Code chapter 229A are not entitled to bail under either the common law or the Iowa Constitution. The clerk of the supreme court is directed to send a copy of this opinion under the seal of the court to the certifying court and the parties. Iowa Code § 684A.7. The clerk shall also prepare and transmit a bill of costs to the clerk of the certifying court. Iowa R.App. P. 6.459. The clerk of the certifying court shall be responsible for apportioning and collecting costs. Id.

CERTIFIED QUESTION ANSWERED.

All justices concur except APPEL, J., who takes no part.

      . Iowa Code section 229A.5(1) requires the district court, upon the filing of a petition alleging a person is a SVP, to make a preliminary determination of whether the State has shown probable cause to believe the person is a SVP. If the court preliminarily finds probable cause to believe the person is a SVP, the person shall be taken into custody. Id. The detainee is thereafter entitled to a probable cause hearing. Iowa Code § 229A.5(2). If the court finds probable cause to believe the detainee is a SVP, the detainee is entitled to a trial to determine whether the detainee is, in fact, a SVP. See id. § 229A.7(2).

      . Section 811.1 provides that ''[a]ll defendants are bailable both before and after conviction, by sufficient surety, or subject to release upon condition or on their own recognizance,” except for defendants in certain criminal cases.

      . See Iowa Code § 229A.5(5) (requiring transfer of the detainee to an appropriate secure facility for an evaluation only "[i]f the court determines that probable cause does exist”). Although the statute does not expressly direct discharge of the detainee in the event probable cause is not established, this is clearly implied.

      . After commitment to a secure facility, a person may petition the court for placement in a transitional release program. See Iowa Code §§ 229A.8(4), 229A.8A. Release may be ordered with or without supervision. Id. § 229A.9A(1).

      . Section 229A.7(5) provides:
      If [at trial] the court or jury determines that the respondent is a sexually violent predator, the respondent shall be committed to the custody of the director of the department of human services for control, care, and treatment until such time as the person's mental abnormality has so changed that the person is safe to be placed in a transitional release program or discharged.

      . "The right of trial by jury shall remain inviolate; but the General Assembly may authorize trial by a juiy of a less number than twelve men in inferior courts; but no person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const, art. I, § 9.

      . Unlike the petitioners, Garren presented an equal protection challenge. In an earlier SVP case, we applied a rational basis analysis to an equal protection claim because the appellant failed to preserve a claim that the reasonableness of the classification should be subjected to strict scrutiny. In re Det. of Morrow, 616 N.W.2d 544, 548 n. 1 (Iowa 2000).

      . The hearing may be waived by the detainee or may be continued "upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, ... if the [detained person] is not substantially prejudiced.” Iowa Code § 229A.5(2).

      .The trial shall be held within ninety days after "either the entry of an order waiving the probable cause hearing or completion of the probable cause hearing,” unless the trial is "continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice ... when the [detainee] will not be substantially prejudiced." See Iowa Code § 229A.7(3).

      . "All persons shall, before conviction, be bailable, by sufficient sureties, except for capital offences where the proof is evident, or the presumption great.” Iowa Const, art. I, § 12.

      . Proceedings under chapter 229A are civil. See In re Bradford, 712 N.W.2d at 146-47; In re Det. of Garren, 620 N.W.2d at 283-86.

      . “Excessive bail shall not be required ...." Iowa Const, art. I, § 17.

      . Iowa Constitution article I, section 8, states:
      The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.

      . Pre-trial detention is undisputedly a "seizure.” It constitutes a "show of authority” that restrains the individual. See State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004) (" ‘A seizure occurs when an officer by means of physical force or show of authority in some way restrains the liberty of a citizen.' ” (quoting State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997))).

      .Iowa Constitution article I, section 10, states:
      In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel.

      . "No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed." Iowa Const, art. I, § 21.

      . "This enumeration of rights shall not be construed to impair or deny others, retained by the people.” Iowa Const, art. I, § 25.

      .Iowa Constitution article I, section 1, states, "All men 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.”