author: WRIGHT, Judge.

text:
    In re the Marriage of Leah Marie THOMPSON, petitioner, Respondent, v. Jamie Michael THOMPSON, Appellant.
    No. A06-1453.
    Court of Appeals of Minnesota.
    Oct. 2, 2007.

      James F. Lester, Fargo, N.D., for appellant.
    Charles A. Krekelberg, Mathew A. So-berg, Krekelberg, Skonseng & Hastings, Pelican Rapids, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; WRIGHT, Judge; and PARKER, Judge.

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

   OPINION

WRIGHT, Judge.

In this appeal from the district court’s denial of appellant-husband’s motion to reopen the parties’ dissolution judgment and decree, husband argues that (1) the district court’s determination on the merits that respondent-wife did not commit fraud on the court is not supported by the record; and (2) the district court abused its discretion by declining to hold an evidentiary hearing on husband’s alternate motion to reopen the judgment and decree because its prospective application is no longer equitable. We affirm.

FACTS

On September 8, 2004, respondent Leah Thompson (wife) petitioned for a dissolution of marriage. Wife served appellant Jamie Thompson (husband) requests for discovery and production of documents. Husband failed to answer or provide any of the requested information. Wife then moved for a default judgment, which the district court granted and subsequently entered a dissolution judgment and decree ending the parties’ two-year marriage. Husband was served a copy of the judgment and decree at his home address and at the Clay County Jail, where he was then incarcerated on an alcohol-related offense.

Before their marriage, the parties had jointly acquired a snowmobile. During their marriage, husband received income from farming. Based on her limited knowledge of husband’s income, wife proposed that this property be divided equally between the parties. Wife also sought assistance in maintaining medical insurance as spousal maintenance. The judgment and decree awarded wife permanent spousal maintenance in the nature of one-half of wife’s medical-insurance premiums. Wife was awarded the parties’ snowmobile, and husband was awarded the farm real estate. Each party received one-half of the funds in the bank accounts and one-half of the farm’s crop-disaster payments for 2003 and 2004.

On February 1, 2005, wife moved to amend the judgment and decree to correct the property-division provision. A copy of the motion was served on husband. Husband did not respond or attend the hearing on the motion. The district court granted wife’s motion and ordered husband to provide -wife a list of all bank accounts and to surrender all property awarded to wife in the judgment and decree. In March 2006, wife moved the district court to compel husband to comply with the terms of the amended judgment and decree, to place a lien on husband’s farm real estate, and for attorney fees.

The following month, husband moved to vacate and reopen the property-division and spousal-maintenance provisions of the judgment and decree on the ground that wife committed fraud on the court or on the alternative ground that prospective application of the judgment and decree is no longer equitable. Husband sought an evi-dentiary hearing on the motion. In an order dated May 5, 2006, the district court granted husband’s request for an eviden-tiary hearing on the motion to reopen the judgment and decree based on wife’s alleged fraud on the court, declined to hold an evidentiary hearing on the alternate ground that prospective application of the judgment and decree is no longer equitable, and continued until after the hearing any decision on wife’s motion to compel husband to comply with the terms of the judgment and decree.

At the evidentiary hearing, husband argued that wife’s fraud misled the district court and led to a property-settlement and spousal-maintenance award that is grossly unfair. Husband admitted that, although he was served with the marital-dissolution petition, judgment and decree, and motion to amend, he did not respond to discovery requests, appear in court, arrange for an attorney to appear on his behalf, or make any effort to contact wife, her attorney, or the district court. He maintained that wife assured him that “she was putting [the dissolution] off.” But wife testified that, after husband continued to violate his probation by driving while impaired, she advised him that she planned to file for divorce, and did so.

In its July 19, 2006 order, the district court found that husband had not met his burden to prove that wife committed fraud on the court, denied husband’s motion to reopen the judgment and decree on either ground alleged, and granted wife’s motion to compel husband to comply with the amended judgment and decree. Husband appealed from the district court’s May 5, 2006 order denying husband an evidentia-ry hearing on the motion to reopen the judgment on the alternate ground that prospective application is no longer equitable and from the district court’s July 19, 2006 order denying the motion to reopen the judgment and decree based on wife’s alleged fraud on the court.

ISSUES

I. Did the district court abuse its discretion when it denied husband’s motion to reopen the judgment and decree under Minn.Stat. § 518.145, subd. 2(3) (2006), based on its determination that wife did not commit fraud on the court?

II. Did the district court abuse its discretion when, based on the determination that husband failed to show good cause, it denied husband an evidentiary hearing on his motion to reopen the judgment and decree under Minn.Stat. § 518.145, subd. 2(5) (2006), on the ground that prospective application of the judgment and decree is no longer equitable?

ANALYSIS

I.

Subject to the right of appeal, a dissolution judgment and decree is final when entered, unless in a timely motion a party establishes a statutory basis for reopening the judgment and decree. Minn. Stat. § 518.145, subds. 1, 2 (2006). Section 518.145, subdivision 2(3), permits relief from the judgment and decree in the case of fraud. See Shirk v. Shirk, 561 N.W.2d 519, 523 (Minn.1997) (holding that circumstances meeting requirements of section 518.145, subdivision 2, “must be demonstrated in order to obtain relief from a judgment and decree of dissolution”). Ordinarily, a motion to set aside a judgment and decree based on fraud must be made within a reasonable time, but not more than one year after entry of the judgment and decree. Minn.Stat. § 518.145, subd. 2. But under limited circumstances, a party may move to set aside a judgment and decree after this one-year limitation if there is proof that the nonmoving party committed “fraud on the court.” Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn.1989). “Fraud on the court” involves “an intentional course of material misrepresentation or non-disclosure, having the result of misleading the court and opposing counsel and making the property settlement grossly unfair.” Id. The moving party bears the burden of establishing a basis to reopen the judgment and decree. Haefele v. Haefele, 621 N.W.2d 758, 765 (Minn.App.2001), review denied (Minn. Feb. 21, 2001).

The district court held an eviden-tiary hearing to determine whether wife committed fraud on the court. Following the hearing, the district court found that wife did not materially misrepresent or withhold information resulting in fraud on the court and denied husband’s requested relief. The district court’s decision whether to reopen the judgment and decree based on fraud on the court will be sustained absent an abuse of discretion. Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn.1996). If there is evidence to support the district court’s decision, an abuse of discretion will not be found. Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn.App.2001). When evidence relevant to a factual issue consists of conflicting testimony, the district court’s decision is necessarily based on a determination of witness credibility, which we accord great deference on appeal. Haefele, 621 N.W.2d at 763.

Husband challenges the district court’s finding that wife did not intentionally mislead husband or the district court. Absent clear error, we will not disturb the district court’s findings. Maranda, 449 N.W.2d at 164. A finding is clearly erroneous if we are left with the definite and firm conviction that a mistake has been made. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.App.2000). When applying the clearly erroneous standard, we view the record in the light most favorable to the district court’s findings. Id. That the record might support findings other than those made by the district court does not render the findings clearly erroneous. Id. at 474.

To support his claim of wife’s fraud on the district court, husband generally contends that wife failed to provide the district court with relevant information regarding her need for spousal maintenance and the nature of the property distributed under the judgment and decree. But this theory of fraud fails to account for husband’s refusal to participate in the dissolution proceedings or to respond to wife’s discovery requests with information to supplement wife’s admittedly limited knowledge of the parties’ marital property.

Our review of the record establishes that the financial information wife provided was based on the best information that she had. Wife testified that she requested a hearing on the default motion to encourage husband to provide information regarding the parties’ assets. Wife continued to request additional information, but husband refused to comply with wife’s attempts to determine the marital property. As to the specific issue of spousal maintenance, wife testified that she needed monthly spousal maintenance in the form of one-half of her medical-insurance premium because she was not healthy during the parties’ marriage and husband’s private insurance policy covered wife during her hospitalization and six-week leave of absence from work for back surgery to remove a tumor. Since that time, wife has not regained her strength, has ongoing health problems related to her back, and does not believe that she can obtain medical insurance without husband’s financial assistance.

Husband did not provide any evidence to rebut wife’s need for spousal maintenance in the nature of one-half of wife’s medical-insurance premiums. Regarding the parties’ marital property, husband similarly failed to provide evidentiary support for his contention that wife engaged in an intentional course of material misrepresentation regarding her marital interest in the snowmobile, bank accounts, and crop-disaster payments. And the uncontroverted record establishes that, throughout the dissolution proceedings, husband failed to respond to wife’s pleadings or to wife’s specific requests for information identifying his nonmarital property.

When viewed in the light most favorable to the district court’s decision with due deference to its credibility determinations, there is substantial evidence in the record to support the district court’s finding that husband failed to meet his burden of proving that wife engaged in material misrepresentations or nondisclosure. Accordingly, the district court did not abuse its discretion by denying husband’s motion to reopen the judgment and decree based on fraud on the court.

II.

Husband also argues that the district court erred by denying his request for an evidentiary hearing on his motion to reopen the judgment and decree on the basis that its prospective application is no longer equitable. Minn.Stat. § 518.145, subd. 2(5). Whether to hold an evidentia-ry hearing on a motion generally is a discretionary decision of the district court, which we review for an abuse of discretion. See Sieber v. Sieber, 258 N.W.2d 754, 756 (Minn.1977) (holding that it is within district court’s discretion to restrict presentation of evidence to nonoral testimony). But whether the district court applied the correct legal standard is a question of law, which we review de novo. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn.1993).

Under the Minnesota Rules of General Practice, it is presumed that a motion in family law, other than a motion for contempt, will be decided without an evidentiary hearing, unless the district court determines that there is good cause for a hearing. Minn. R. Gen. Pract. 303.03(d); Doering v. Doering, 629 N.W.2d 124, 130 (Minn.App.2001), review denied (Minn. Sept. 11, 2001). The definition of “good cause” has yet to be articulated. Doering, 629 N.W.2d at 130. And Minnesota courts have not addressed when good cause exists to grant an evidentiary hearing under Minn.Stat. § 518.145, subd. 2(5). In Doering, however, we addressed whether good cause existed to grant an eviden-tiary hearing on a motion to reopen the record for fraud under Minn.Stat. § 518.145, subd. 2(3). 629 N.W.2d at 130. In doing so, we used the summary-judgment standard to determine whether good cause existed, observing that a district court may summarily dispose of a claim “only where there is no genuine issue of material fact in dispute and where a determination of the applicable law will resolve the controversy.” Id. We ultimately concluded that, “[bjecause appellant’s affidavits [were] sufficient to present a fact question of fraud, appellant established good cause for an evidentiary hearing on his motion to reopen the judgment.” Id. at 132. In the present context, the summary-judgment standard requires a determination of whether, when viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the movant is entitled to the requested relief as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993); State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

Relying on Harding v. Harding, the district court observed that “Minnesota courts allow re-opening of a judgment by reason of mutual mistake.” See 620 N.W.2d 920, 923-24 (Minn.App.2001) (remanding to district court for reopening of judgment and decree to determine equitable distribution of corporate stock when postjudgment income-tax determination substantially altered the value of principal material assets of parties, which had been negotiated in marital-termination agreement), review denied (Minn. Apr. 17, 2001). The district court then denied husband’s request for an evidentiary hearing because husband “has not shown or alleged a mutual mistake by the parties” because it was “only after the judgment was filed” that wife became aware of the “true nature of certain farm bank accounts and crop disaster payments.” Although the district court’s reliance on Harding is sound, its stated rationale for denying the motion is not.

We held in Harding that, to reopen a judgment and decree because prospective application is no longer equitable, the inequity must result from “the development of circumstances substantially altering the information” known when the dissolution judgment and decree was entered. Id. at 924. The moving party must present more than merely a new set of circumstances or an unforeseen change of a known circumstance to reopen a judgment and decree. Id. And as an example, we cited Minnesota precedent allowing a judgment and decree to be reopened based on mutual mistake because a “substantial injury, not discovered until after the settlement,” had been sustained. Id. at 923 (citing Newman v. Fjelstad, 271 Minn. 514, 519, 137 N.W.2d 181, 184 (1965) (iterating rule that release for damages may be set aside on the ground of mutual mistake for injury not discovered until after personal-injury settlement)). Here, rather than relying on husband’s failure to allege a mutual mistake by the parties, the district court should have considered whether there is inequity in prospective application of the judgment and decree as a result of the development of circumstances beyond the parties’ control that substantially alter the information known when the judgment and decree was entered. Id. at 924.

Viewing the evidence in the light most favorable to husband, he has not met this standard. Husband seeks to collaterally attack the district court’s marital-property and spousal-maintenance determinations, having elected to forego participation in the proceedings or to timely file a direct appeal of the judgment and decree. Husband has not alleged or demonstrated a change in circumstances that substantially alters the information that was known when the judgment and decree was entered. There has not been a change in the nature or value of the marital property or in wife’s need for spousal maintenance. The only change is husband’s willingness to participate in the dissolution proceedings, now that they have concluded. “[A] party cannot complain about a district court’s failure to rule in [the party’s] favor when one of the reasons it did not do so is because that party failed to provide the district court with the evidence that would allow the district court to fully address the question.” Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn.App.2003), review denied (Minn. Nov. 24, 2003). Accordingly, husband’s claim that the district court abused its discretion by denying him an evidentiary hearing on the motion to reopen the judgment and decree because its prospective application is no longer equitable fails.

Moreover, husband has not demonstrated any evidence that he would have presented to the district court in an evidentia-ry hearing based on this ground to reopen the judgment and decree that he did not present during the evidentiary hearing on the ground that wife committed fraud on the court. Therefore, any error in the district court’s denial of an evidentiary hearing would have been harmless. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

Finally, husband urges us to impose a “quasi contract by law in order to prevent unjust enrichment in a default hearing.” Husband failed to present this argument to the district court. Because this argument is raised for the first time on appeal, we decline to address it. Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn.App.2005) (citing Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (holding that generally, issues not raised before district court will not be considered on appeal)), review denied (Minn. Sept. 28, 2005). Moreover, the manner of relief that husband seeks from a final judgment and decree is available only by satisfying the statutory requirements of Minn.Stat. § 518.145, subd. 2. Shirk, 561 N.W.2d at 522. The doctrine of unjust enrichment cannot be employed as an extra-statutory mechanism for reopening the judgment and degree.

DECISION

Because the record supports the district court’s finding that wife did not commit fraud on the court, the district court did not abuse its discretion when it denied husband’s motion to reopen the judgment and decree under Minn.Stat. § 518.145, subd. 2(3) (2006). And because husband failed to establish good cause for an evi-dentiary hearing on his motion under Minn.Stat. § 518.145 subd. 2(5) (2006), the district court did not abuse its discretion by denying husband’s request for a hearing.

Affirmed.


source: Caselaw Access Project

author: MINGE, Judge. WILLIS, Judge

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Janet Sue SHRINER, Respondent.
    No. A07-181.
    Court of Appeals of Minnesota.
    Oct. 2, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Hastings, MN, for appellant.
    Jeffrey B. Ring, Jeffrey B. Ring and Associates, Minneapolis, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; MINGE, Judge; and HUDSON, Judge.
   OPINION

MINGE, Judge.

The state challenges the pretrial suppression of the results of a warrantless, nonconsensual blood draw, arguing that the presence of alcohol constitutes sufficient exigent circumstances to justify a blood draw. Because we conclude that under the facts present, there was insufficient evidence of exigent circumstances, we affirm.

FACTS

Respondent Janet Shriner was involved in a two-car motor-vehicle accident on May 8, 2006, at approximately 9:26 p.m. in Burnsville. Shriner drove her vehicle in the wrong lane of traffic and struck another vehicle head-on, injuring the driver of the other vehicle. Shriner fled the scene of the accident in her vehicle. Burnsville Police Officer Maksim Yakovlev was dispatched to And Shriner. Officer Yakovlev located and, with the assistance of another officer, forcibly stopped Shriner’s vehicle. Because Shriner did not comply with the officers’ requests to step out of her vehicle and its doors were locked, the officer broke a window, opened a door, and removed Shriner. Officer Yakovlev observed that Shriner’s eyes were bloodshot and glazed-over, that she smelled of alcohol, and that she could not stand on her own. He also observed that she was not injured.

Officer Yakovlev arrested Shriner and transported her to nearby Fairview Ridges Hospital. Once there, he directed hospital staff to make a blood draw. The draw was completed less than 45 minutes after the time of the arrest. Shriner’s consent was not sought or obtained and no implied-consent advisory was given to her. Officer Yakovlev testified that he was not “worried [that Shriner] was about to slip under the legal limit at any given moment,” and he did not attempt to obtain a search warrant.

Shriner was subsequently charged with seven criminal counts including first-degree driving while impaired, in violation of Minn.Stat. § 169A.20, subd. 1(5) (2004), and criminal vehicular operation resulting in bodily harm, in violation of Minn.Stat. § 609.21, subd. 2b(4) (2004).

The district court held an omnibus hearing at which Shriner moved to suppress the blood-test results. Shriner conceded the existence of probable cause to seek the blood test, but asserted that without her consent or a warrant, the blood draw was improper. After granting Shriner’s motion to suppress the blood-test evidence, the district court dismissed the first-degree driving-while-impaired and criminal-vehicular-operation charges under Minn.Stat. §§ 169A.20, subd. 1(5) and 609.21, subd. 2b(4). This appeal by the state follows.

ISSUES

I. Did the suppression of blood-test results have a critical impact on the state’s case?

II. Did the district court err in suppressing the blood-test evidence?

ANALYSIS

The district court’s decision to suppress evidence is a question of law, and we “independently review the facts” to determine whether the decision is erroneous. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). If the state appeals from a pretrial suppression order, it must “clearly and unequivocally show both that the [district] court’s order will have a critical impact on [its] ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (quotation omitted). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id.

I.

The first issue is whether the suppression of the result of the blood test will have a critical impact on the state’s case. In a critical-impact inquiry, we consider whether “the lack of the suppressed evidence completely destroys the state’s case” or “significantly reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn.1987). Suppression of alcohol-level test results has a critical impact even if there is other evidence of intoxication. State v. Ault, 478 N.W.2d 797, 799 (Minn.App.1991).

Here, the significance of the district court’s order suppressing the blood-test evidence is apparent. The district court determined that the charges of both criminal vehicular operation and first-degree driving while impaired required proof that Shriner’s blood-alcohol level was above .08. Because evidence of Shriner’s blood-alcohol level was suppressed, both charges were dismissed. Thus, the suppression of this significant evidence has a critical impact on the state’s case.

II.

The next issue is whether the district court erred in suppressing the blood-test evidence. The state contends that exigent circumstances justified a warrantless draw of Shriner’s blood.

The United States Constitution’s Fourth Amendment guarantees “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.” U.S. Const. amend. IV. Our state constitution contains a parallel provision. Minn. Const. art. I, § 10. A search and seizure conducted without a warrant is per se unreasonable. State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn.1992). A warrant must be supported by probable cause. Minn. Const. art. I, § 10. “The requirement that a warrant be obtained is a requirement that inferences to support the search be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966) (quotation omitted). But the warrant requirement is “ ‘subject ... to a few specifically established and well delineated exceptions.’ ” State v. Hanley, 363 N.W.2d 735, 738 (Minn.1985) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). “The state bears the burden of showing that at least one of the exceptions applies in order to avoid suppression of the evidence acquired from the warrantless search.” State v. Johnson, 689 N.W.2d 247, 251 (Minn.App.2004), review denied (Minn. Jan. 20, 2005). One such exception is the existence of exigent circumstances. State v. Paul, 548 N.W.2d 260, 264 (Minn.1996).

The administration of a blood test is considered a search that must comply with the Fourth Amendment. Schmerber, 384 U.S. at 767, 86 S.Ct. at 1834. In order to meet the requirements of the Fourth Amendment, a warrantless, nonconsensual blood draw must be supported by both probable cause and exigent circumstances. State v. Aguirre, 295 N.W.2d 79, 81 (Minn.1980). Probable cause to search exists when, given the totality of the circumstances, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995). Here, Shriner stipulates that the deputy had probable cause to believe that she was under the influence of alcohol. Therefore, the sole disputed issue in this case is whether exigent circumstances justified the warrantless, non-consensual blood draw.

When determining whether the situation presented exigent circumstances, we examine the totality of the circumstances. State v. Lohnes, 344 N.W.2d 605, 611 (Minn.1984). But “[e]xigent circumstances can [also] be established ... by a single factor.” Johnson, 689 N.W.2d at 251. Exigent circumstances exist when there is a danger of the “imminent destruction of evanescent evidence.” Paul, 548 N.W.2d at 264. Because alcohol in the blood has an evanescent quality, a warrant may not be necessary for a blood draw, depending on the amount of time that has elapsed since the accident and the difficulty in obtaining a warrant. See Schmerber, 384 U.S. at 770-71, 86 S.Ct. at 1836. In Schmerber, the Supreme Court concluded that exigent circumstances were present because the officer, who authorized a war-rantless blood draw within two hours of an accident,

might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.

Id. at 770-71, 86 S.Ct. at 1835-36 (quotation and citation omitted). And in conducting an exigent-circumstances analysis, Minnesota cases have emphasized factors such as the evanescent nature of alcohol in the blood, the passage of time, and the potential unavailability of the defendant once he or she is taken to the hospital for treatment. See, e.g., State v. Oevering, 268 N.W.2d 68, 74 (Minn.1978).

The state contends that exigent circumstances existed justifying the warrantless draw of Shriner’s blood. The state essentially takes the position that due to the evanescent nature of alcohol, the presence of alcohol in an individual reasonably suspected of an alcohol-related crime is an exigent circumstance per se justifying a warrantless blood draw. To support its position, the state cites numerous previous decisions of the supreme court and both published and unpublished opinions of this court, including Paul, 548 N.W.2d at 266; State v. Heaney, 689 N.W.2d 168, 173 n. 2 (Minn.2004); Aguirre, 295 N.W.2d at 79; and our decision in Johnson, 689 N.W.2d at 252. In Paul, the supreme court recognized the need for officers to “act as quickly as possible” to avoid the dissipation of blood-alcohol evidence. 548 N.W.2d at 267. In Heaney, the supreme court again noted the “natural exigency involved in obtaining blood-alcohol evidence.” 689 N.W.2d at 173 n. 2. Although the Aguirre decision upheld the constitutionality of a nonconsensual, warrantless blood draw, the issues on appeal concerned the lack of an arrest and the interplay between the implied-consent law and the level of charges. 295 N.W.2d at 80-83. The Aguirre court did not consider the U.S. Supreme Court’s decision in Schmerber. And in Johnson, we concluded that, based on the facts of the case, the possible destruction of blood-alcohol evidence amounted to an exigent circumstance supporting a warrantless search. 689 N.W.2d at 252. Several other cases deal with the intricacies of the implied-consent law. See Frederic Bruno, The Drinking Driver in Minnesota § 2.10 (3rd ed.2006).

A careful review of our caselaw indicates that although there are comments which lend some support to the state’s position, none has expressly held that the presence of alcohol is a per se exigent circumstance sufficient to justify a warrantless blood draw. Other jurisdictions take conflicting positions on this issue. Compare State v. Rodriguez, 156 P.3d 771, 782 (Utah 2007) (declining to assign “per se exigent circumstance status” to warrantless blood draws, but upholding warrantless blood draw at issue in the case based on the totality of the circumstances), with State v. Cocio, 147 Ariz. 277, 709 P.2d 1336, 1344-46 (1985) (allowing police to obtain blood without a warrant when blood has already been drawn for medical purposes), and State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399, 400 (1993) (“[T]he dissipation of alcohol from a person’s blood stream constitutes a sufficient exigency to justify a warrantless blood draw”). A close reading of Schmerber and other United States Supreme Court decisions does not support the state’s position. See, e.g., Skinner v. Ry. Labor Excecutives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (upholding a warrantless blood draw in civil investigations of railroad accidents); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (rejecting a claim that admission of evidence of refusal to submit to blood-alcohol test violates the privilege against self-incrimination).

In Rodriguez, the Utah Supreme Court reviewed the legal landscape on this issue, determined that Schmerber is still good law, and concluded:

In light of the foregoing, it is difficult for us to imagine that the United States Supreme Court could muster the assurance that the consequences of alcohol dissipation are so great and the prospects for prompt warrant acquisition so remote that per se exigent circumstance status be awarded to seizures of blood for the purpose of gathering blood-alcohol evidence. Accordingly, we decline to grant per se exigent circumstance status to warrantless seizures of blood evidence.

156 P.3d at 782. The Fourth Amendment represents a fundamental public policy of protecting personal privacy and dignity against unwarranted intrusion by the state. We decline the opportunity to reject the United States Supreme Court’s decision in Schmerber and to adopt a per se rule.

The question then becomes whether in this proceeding there are factors, together with the suspected presence of alcohol, that constitute exigent circumstances sufficient to justify the warrantless blood draw. We employ a totality-of-the-cireumstances approach. Here, Shriner was arrested at her vehicle one-half mile from Fairview Ridges Hospital. Officer Yakovlev quickly transported Shriner to that hospital and a blood draw was made less than 45 minutes after she was last in the driver’s seat of her vehicle. He did not give her the implied-consent advisory or seek her consent to the draw. Officer Yakovlev did not believe that Shriner was injured, did not have responsibility for any other person injured as a result of the accident, and did not have a crime scene that required his attention. He was able to focus on acquiring evidence of Shriner’s intoxication. Based on a two-hour rule to establish guilt under Minn.Stat. §§ 169A.20, subd. 1(5) (2004), and 609.21, subd. 2b(4) (2004), the question becomes whether a warrant could reasonably have been obtained within a timeframe that would not have compromised the test results.

The process for obtaining a search warrant is set out in the statutes and court rules. See Minn.Stat. §§ 626.04 to 626.18 (2006); Minn. R.Crim. P. 36. Although the prosecuting attorney often handles the application for a search warrant, law enforcement may apply directly to the judge. See, e.g., State, City of Minneapolis v. Cook, 498 N.W.2d 17, 18-19 (Minn.1993); State v. McGrath, 706 N.W.2d 532, 537 (Minn.App.2005). In this case, it was evening. The Burnsville police officers may have had to contact a prosecuting attorney at home to prepare a warrant request. Next, law enforcement would have had to locate a judge, request a warrant, obtain the warrant, and then provide evidence of the warrant to the staff at the Fairview Ridges Hospital to authorize the noncon-sensual blood draw. This takes expeditious action.

Minnesota law authorizes the use of telephonic warrants. See Minn. R.Crim. P. 36.01. Caselaw has recognized the availability and validity of telephonic search warrants. See, e.g., State v. Lindsey, 473 N.W.2d 857 (Minn.1991). In State v. Raines, 709 N.W.2d 273, 275 (Minn.App.2006), review denied (Minn. Apr. 18, 2006), police officers requested a telephonic warrant at 3:10 a.m. in Pine County. The warrant was executed within one hour and fifty minutes. Id. And in State v. Cook, 498 N.W.2d 17, 18-19 (Minn.1993), a judge issued a telephonic search warrant less than one hour after the request for the warrant was made. . Here, the state has made no showing that it would have been unable to obtain a timely telephonic search warrant.

The state argues that the existence of probable cause to believe that Shriner had violated the criminal-vehicular-operation statute justifies the warrant-less blood draw. The state cites Minn.Stat. § 169A.52, subd. 1 (2004), which provides that “if a peace officer has probable cause to believe that the person has violated section 609.21 (criminal vehicular homicide and injury), a test may be required and obtained despite the person’s refusal.” “When an officer has probable cause to believe [that] a driver is intoxicated and has committed criminal vehicular operation, the officer may order the taking of a blood sample without obtaining the driver’s consent.” State v. Condon, 497 N.W.2d 272, 275 (Minn.App.1993). But as we have already determined, the constitutional requirements for a nonconsensual search include both probable cause and either a search warrant or the existence of one of the warrant exceptions. Neither the statute nor the Condon case mentions the constitutional limits on searches and the necessity of exigent circumstances to dispense with search warrants.

We note that although the constitutional limits on searches was argued to and addressed by the district court, and is argued by the parties on appeal, the district court did not consider, and on appeal the parties do not address, the constitutionality of Minn.Stat. § 169A.52, subd. 1. We do not usually consider legal issues not properly raised. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996). But we assume that the legislature does not intend to violate the constitution. Minn.Stat. § 645.17(3) (2006). We therefore note that Minn.Stat. § 169A.52, subd. 1, does not refer to search warrants. We construe the subsection as not dispensing with the warrant requirement when a warrant can be obtained and is otherwise required by the constitution. Likewise, we consider the exigent-circumstances requirement as a part of the statute. In reaching this conclusion, we emphasize that the exigent-circumstances requirement is not a high threshold. The physical condition of the suspect and other persons, the evanescent nature of alcohol in the blood, and the time requirements needed to obtain a warrant and a blood test no doubt will combine to constitute exigent circumstances in most cases.

Here, the district court did not find that exigent circumstances existed to dispense with the warrant requirements. As already noted, the totality of the circumstances do not support an exigency determination. Officer Yakovlev testified that he was not concerned about the dissipation of alcohol from Shriner’s blood. The scene of the arrest was near the hospital; the time needed to make a blood draw was minimal. The officer was not faced with competing responsibilities. Equally significant, the district court did not find that obtaining a nighttime search warrant was time consuming or created exigent circumstances. The record is silent on the local warrant process and the state does not claim that there is any difficulty in obtaining nighttime or telephonic warrants. On this record, when neither the prosecution nor the district court judge was concerned with the officer’s ability to promptly obtain a warrant, and the district court held a warrant should have been obtained, we are unwilling to reverse the district court and assume that the time needed to obtain a warrant created an exigent circumstance.

The state argues that given the inherent stress that accompanies an accident and arrest situation, the officer should not have to make a judgment call on whether a warrant can be obtained. We do not suggest that the officer’s decision is easy. In determining whether a situation presented exigent circumstances, district courts give due consideration to the wide range of circumstances facing law enforcement. See, e.g., Rodriguez, 156 P.3d at 781 (emphasizing that serious nature of accident and injuries, together with significant evidence of driver’s impairment were “sufficient to establish that the interests of law enforcement outweighed ... [the driver’s] privacy interests”). On this record where no extenuating circumstance other than the evanescent quality of alcohol is present, we conclude the district court did not err in holding that the police officer must obtain the driver’s consent or obtain a warrant.

DECISION

The Fourth Amendment of the United States Constitution precludes using the results of a warrantless, nonconsensual blood draw in a criminal prosecution unless law enforcement has probable cause to believe criminal conduct has occurred and there are exigent circumstances in addition to evidence of alcohol consumption. Because the record in this proceeding does not show the presence of necessary exigent circumstances, we affirm.

Affirmed.

WILLIS, Judge

(dissenting).

I respectfully dissent from the majority’s holding, which would require an on-the-scene assessment of the degree of exigency of the need for alcohol-concentration testing even when police believe a serious criminal offense has occurred.

As the majority points out, both probable cause and exigent circumstances are needed to justify the warrantless removal of blood. State v. Aguirre, 295 N.W.2d 79, 81 (Minn.1980). The majority asserts that there is no authority holding that the presence of alcohol, and the need, therefore, to test for it, is by itself an exigent circumstance. But our supreme court has unmistakably implied that it is, even when the less-serious offense of DWI is the only crime suspected. See Tyler v. Comm’r of Pub. Safety, 368 N.W.2d 275, 278 (Minn.1985) (stating that warrantless removal of blood is constitutional if there is probable cause to believe that the offense of DWI has been committed “and that the removal of the blood is necessary to preserve evidence of guilt”). The majority cites no Minnesota decision requiring a case-by-case assessment of the exigency of the need for alcohol testing that its decision imposes, even in DWI cases, which are less serious than the crime suspected in this case.

The majority’s holding rests on a highly selective reading of the caselaw in Minnesota. The majority notes that Aguirre fails to consider Schmerber. But that is because in Aguirre the supreme court treats as settled law its decision in State v. Oevering, 268 N.W.2d 68, 72 (Minn.1978), in which it broadly construed Schmerber as recognizing exigent circumstances when “destruction of the evidence (i.e., the blood-alcohol content) is threatened.” This broad reading of Schmerber is essential to the development of implied-consent law in Minnesota. Without it, the supreme court could not have stated, as it did in Nyflot v. Comm’r of Pub. Safety, after citing Schmerber, that the legislature “could repeal the implied consent law and direct police officers to administer chemical tests against the suspect’s will.” 369 N.W.2d 512, 517 (Minn.1985). That view of Schmerber leaves no room for the majority’s reading of the case as limited to its facts, a reading that the majority treats not just as an arguable interpretation of Schmerber but as its unchallenged holding.

In cases involving the more serious offense of criminal vehicular operation (or homicide), our supreme court has long held that police need not resort to the implied-consent statute, or otherwise obtain the driver’s consent, in order to constitutionally obtain a blood sample without a warrant. See State v. Speak, 339 N.W.2d 741, 744-45 (Minn.1983); Aguirre, 295 N.W.2d at 82. In none of these cases has the supreme court held that the exigency of obtaining a blood sample depends on the degree of the driver’s apparent intoxication, the distance from a hospital, or the logistics of obtaining a telephonic search warrant, some of the factors cited by the majority. Requiring police officers to balance such factors on the scene poses an impossible burden.

Assessing the relevant “exigency” factors is not an easy task even for a court. For example, the driver’s apparent degree of intoxication is not as relevant as the majority suggests. The supreme court has emphasized that an officer need not have probable cause to believe that a driver is intoxicated in order to have blood drawn, only “probable cause to believe that administration of a blood alcohol test will result in the discovery of evidence relevant in the prosecution of a crime.” State v. Lee, 585 N.W.2d 378, 382 (Minn.1998). And a driver cannot be too drunk for her alcohol concentration to be relevant evidence. The officer at the scene cannot gauge a driver’s alcohol concentration or know whether a prosecutor would prefer to charge her with negligent driving while impaired or negligent driving with an alcohol concentration over .08. The exigency exists because “the removal of the blood is necessary to preserve evidence,” Tyler, 368 N.W.2d at 278, not because the driver’s intoxication is a close question.

In summary, there is a bright-line rule that the majority opinion obscures. The obscuring of that line will cause confusion for the police. See State v. Schinzing, 342 N.W.2d 105, 109 (Minn.1983) (noting that requiring case-by-case assessment of whether police can ask for a driver’s license “would create unnecessary confusion among the police”). Police officers should not have to balance likely intoxication levels against the logistics of telephonic warrants at the scene of a serious accident.

      . We note that five charges remained against Shriner. The parties do not argue and we do not consider whether the suppression order has a critical impact on those charges or whether the survival of those charges is relevant to the critical-impact question. We also note that this court has adopted the view that "even an order dismissing only one count of a multi-count complaint may have critical impact.” State v. Koenig, 649 N.W.2d 484, 487 (Minn.App.2002).

      . We emphasize that no implied-consent advisory was given to respondent and that we do not consider Minn.Stat. §§ 169A.50-.53 (2006).

      . "Generally, the rate by which an individual eliminates alcohol from his [or her] body is 0.015% per hour." Kimberly S. Keller, Sobering up Daubert: Recent Issues Arising in Alcohol-Related. Expert Testimony, 46 S. Tex. L.Rev. 111, 125 (2004).


author: BASTIAN, Circuit Judge.

text:
    2007 SD 96
    ARGUS LEADER, Plaintiff and Appellant, v. James D. HAGEN, in his official Capacity as Secretary of the South Dakota Department of Tourism and State Development, Defendant and Appellee.
    No. 24191.
    Supreme Court of South Dakota.
    Argued April 23, 2007.
    Decided Sept. 11, 2007.

      Jon E. Arneson, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.
    Neil Fulton, May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for defendant and appellee.
   BASTIAN, Circuit Judge.

[¶ 1.] The Sioux Falls Argus Leader newspaper (Argus Leader) sought a writ of mandamus compelling James D. Hagen (Secretary Hagen), then Secretary of Tourism and State Development, to release the invitation list for the 2005 Governor’s Invitational Pheasant Hunt (Governor’s Hunt). Argus Leader appeals from the decision of the circuit court denying its application for a writ of mandamus. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] The Governor’s Office of Economic Development (GOED) is within the South Dakota Department of Tourism and State Development (Department). The purpose of GOED is to “forge a private-public partnership among state government, local communities, higher education, and the private sector to create jobs that create goods and services for use within the state and for export outside the state, which results in the creation of new wealth.” SDCL 1-52-3.2. GOED is to “seek new employment opportunities, strengthen existing employment opportunities, and spawn new and innovative economic development opportunities!!]” SDCL 1-52-3.3.

[¶ 3.] Department and GOED annually conduct the Governor’s Hunt to showcase the state to businesses and entrepreneurs with the potential to locate new businesses within the state or expand existing businesses within or into the state. The Governor’s Hunt is hosted by the Governor and funded by donations of sponsoring individuals and businesses; taxpayer funds are not used. GOED works with the Office of the Governor to formulate the invitation list. According to the Secretary’s affidavit, the invitees include targeted business prospects and individuals in the business community who can facilitate the expansion or introduction of business in the state. The list of business prospects invited to the Governor’s Hunt is used by GOED in an ongoing deliberative manner for further communication and business development.

[¶4.] On December 30, 2005, Argus Leader filed an application for an alternative writ of mandamus in the Sixth Judicial Circuit seeking access to the invitation list for the 2005 Governor’s Hunt. A hearing was held by the circuit court on March 6, 2006. The evidentiary record consists of the Secretary’s affidavit and exhibits submitted by Argus Leader.

[¶ 5.] The circuit court issued its memorandum decision denying Argus Leader’s application for a writ of mandamus on April 21, 2006, and subsequently entered findings of fact and conclusions of law. The circuit court concluded that Secretary Hagen was given discretion not to release the invitation list to the public under agency specific statutes. The court further held that the general public records statute, SDCL 1-27-1, did not require Secretary Hagen to keep the invitation list available and open for inspection because no statute mandates its retention. The circuit court did not address Secretary Ha-gen’s claim of executive privilege.

[¶ 6.] Argus Leader appeals claiming that the invitation list is a public record open to inspection under SDCL 1-27-1 and SDCL 1-26-2. Further, it argues that the agency specific statutes, SDCL 1-33-19.2 and SDCL 1-52-3.4, do not give the Secretary discretion to refuse to allow public inspection. It also asserts that executive privilege does not apply to the invitation list.

STANDARD OF REVIEW

[¶ 7.] The standard of review for the grant or denial of a writ of mandamus is abuse of discretion. Schafer v. Deuel County Bd. of Com’rs, 2006 SD 106, ¶ 4, 725 N.W.2d 241, 243 (citing Atkinson v. City of Pierre, 2005 SD 114, ¶ 10, 706 N.W.2d 791, 795; Lang v. Western Providers Physician Organization, 2004 SD 107, ¶ 7, 688 N.W.2d 403, 405; Black Hills Central RR Co. v. Hill City, 2003 SD 152, ¶ 9, 674 N.W.2d 31, 34). “ ‘An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.’ ” Schafer, 2006 SD 106, ¶ 4, 725 N.W.2d at 243 (quoting Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 N.W.2d 265, 270 (other citations omitted)). In applying this standard, this Court does not determine whether it would make a like decision, but rather whether a judicial mind, considering the law and the facts, could have reached a similar decision. Id. Questions of statutory interpretation and applicátion are reviewed under the de novo standard of review with no deference to the circuit court’s decision. Schafer, 2006 SD 106, ¶ 6, 725 N.W.2d at 243 (citing Lewis & Clark Rural Water Sys., Inc. v. Seeba, 2006 SD 7, ¶ 12, 709 N.W.2d 824, 830 (other citations omitted)).

ANALYSIS AND DECISION

ISSUE

[¶ 8.] Whether the circuit court abused its discretion in denying the writ of mandamus.

[¶ 9.] “ ‘[A] writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear[.]’” Wagner v. Wagner, 2006 SD 31, ¶ 10, 712 N.W.2d 653, 657 (quoting Baker, 2001 SD 49, ¶ 16, 625 N.W.2d at 271) (alteration in original). “ ‘To prevail in seeking a Writ of Mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.’ ” Wagner, 2006 SD 31, ¶ 10, 712 N.W.2d at 657 (emphasis omitted) (quoting Baker, 2001 SD 49, ¶ 16, 625 N.W.2d at 271 (citing Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242)).

Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right.

Jensen v. Lincoln Co. Bd. of Com’rs, 2006 SD 61, ¶ 10, 718 N.W.2d 606, 610 (quoting Sorrels, 1998 SD 12, ¶ 6, 575 N.W.2d at 242). “[MJandamus is appropriate only when the duty to act is unequivocal.” Jensen, 2006 SD 61, ¶ 10, 718 N.W.2d at 610. Therefore, this Court must determine whether the Secretary has a clear and unequivocal duty to allow public inspection of the invitation list for the Governor’s Hunt.

A. SDCL 1-27-1

[¶ 10.] Argus Leader asserts that the invitation list is a public record which is open to inspection under SDCL 1-27-1. It cites to SDCL 1-27-9(2) and (4)(a) for a definition of a state agency record. It argues that the Governor’s Hunt is an official government function and the invitation list is used in conducting the Governor’s Hunt. It claims that the invitation list falls within the definition of a public agency record.

[IT 11.] SDCL ch 1-27 pertains generally to public records and files. SDCL 1-27-1 provides, in relevant part:

If the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state, the officer or public servant shall keep the record, document, or other instrument available and open to inspection by any person during normal business hours. Any employment examination or performance appraisal record maintained by the Bureau of Personnel is excluded from this requirement.

[¶ 12.] “Interpreting statutes according to their plain language is a primary rule of statutory construction.” State v. Young, 2001 SD 76, ¶ 6, 630 N.W.2d 85, 87 (citing Nickerson v. American States Ins., 2000 SD 121, ¶ 11, 616 N.W.2d 468, 470). SDCL 1-27-1 provides that a document is open to public inspection “[i]f the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state[.]”

[¶ 13.] 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. Benson v. State of SD, 2006 SD 8, ¶ 71, 710 N.W.2d 131, 158 (quoting Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). Words and phrases in a statute must be given their plain meaning and effect. Id. 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. Id.

[¶ 14.] The language of SDCL 1-27-1 is clear and unambiguous. Argus Leader is correct that there is a presumption of openness under SDCL 1-27-1, but only if the record or document is required by statute to be kept or maintained. Argus Leader’s expansive interpretation of SDCL 1-27-1 would make every document generated by or in the possession of government a public record with the accompanying requirement that it be maintained. This would include such things as ephemeral notes and phone messages.

[¶ 15.] “In construing a statute, we presume ‘that the legislature did not intend an absurd or unreasonable result’ from the application of the statute.” State v. Wilson, 2004 SD 33, ¶ 9, 678 N.W.2d 176, 180 (quoting State v. I-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290) (citing Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611)). Argus Leader dismisses this argument by maintaining that “[reasonableness in the form of ‘common sense, democratic philosophy, constitutional principles and legislative reality’ ” tempers its position. This Court, however, must apply the language of the statutes as enacted by the legislature. SDCL 1-27-1 requires open inspection of any record required by statute to be maintained. Argus Leader concedes that there is no statutory requirement for Secretary Hagen to maintain a list of invitees to the Governor’s Hunt. The legislature has shown an ability to require that certain records be maintained and, therefore, open for inspection.

[¶ 16.] SDCL 1-27-1 does not give the Secretary a clear and unequivocal duty to allow public inspection of the invitation list for the Governor’s Hunt. Accordingly, mandamus cannot issue.

B. SDCL 1-26-2

[¶ 17.] Argus Leader also argues that the invitation list is open to public inspection pursuant to SDCL 1-26-2 which provides:

Each agency shall make available for public inspection all rules, final orders, decisions, opinions, intra-agency memo-randa, together with all other materials, written statements of policy or interpretations formulated, adopted, or used by the agency in the discharge of its functions. An agency shall hold confidential materials derogatory to a person but such information shall be made available to the person to whom it relates,

(emphasis added). It argues that the Department is an agency under SDCL ch 1-26, that the invitation list is “other materials” and the Governor’s Hunt is a function of the Department. Therefore, Argus Leader argues that SDCL 1-26-2 compels the Department to provide public access.

[¶ 18.] Under the canon of statutory construction known as ejusdem gener-ts, “ ‘where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.’ ” Nielson v. AT & T Corp., 1999 SD 99, ¶ 15, 597 N.W.2d 434, 439 (quoting In re Grievance of Wendell, 1998 SD 130, ¶ 7, 587 N.W.2d 595, 597 (quoting Black’s Law Dictionary 517 (6th ed 1990))). Therefore, the meaning of “all other materials” in SDCL 1-26-2 is discerned by considering the context in which it is used.

[¶ 19.] SDCL ch 1-26 is the South Dakota Administrative Procedures Act. It addresses the promulgation of administrative rules and the conduct of contested administrative hearings. Applying the principle of ejusdem generis, “all other materials” is limited to the context of promulgation of administrative rules and resolution of administrative proceedings. Construing the language “all other materials” to provide public inspection of any document in the possession of an agency would be an absurd and unreasonable application of the statute. Therefore, SDCL 1-26-2 does not mandate the public inspection of the invitation list.

C. Agency Specific Statutes

[¶ 20.] The legislature has created limitations to the open inspection policy of SDCL 1-27-1. SDCL 1-27-3 provides that “Section 1-27-1 shall not apply to such records as are specifically enjoined to be held confidential or secret by the laws requiring them to be so kept.” Additionally, SDCL 1-27-33 provides:

The provisions of this chapter do not supersede more specific provisions regarding public access or confidentiality elsewhere in state or federal law.

[¶21.] The latter statute is consistent with the rule of statutory construction which provides that “ ‘[w]hen 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.’ ” Benson, 2006 SD 8, ¶ 71, 710 N.W.2d at 158 (quoting Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611) (other citations omitted).

[¶ 22.] Two statutes are primarily at issue. SDCL 1-33-19.2 provides:

The secretary shall maintain the confidentiality of any information given to GOED or the Economic Development Finance Authority, the South Dakota Development Corporation, and the Board of Economic Development.

[¶ 23.] SDCL 1-52-3.4 (formerly SDCL 1-33-19.1) provides:

All information received by the Governor’s Office of Economic Development shall be open to public inspection if it appears to the secretary that such inspection may assist in carrying out or furthering the purposes of the office, except- if the provider of such information requests that the information remain confidential and not be open to public inspection. The secretary shall supply at cost, copies of any such information.

[¶ 24.] The question is whether these statutes give the Secretary a clear and unequivocal duty to make the invitation list available and open for public inspection.

[¶ 25.] 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. 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)). But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result. Id. “[W]here statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them ‘harmonious and workable.’ ” Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶ 4, 543 N.W.2d 787, 789.

[¶ 26.] GOED was originally created within the Department of Executive Management. See SDCL 1-33-15 (transferred to § 1-52-3.1 by 2005 SDSessL ch 10, § 10). In 2003 Executive Reorganization Order 2003-01 abolished the Department of Tourism and created the Department of Tourism and State Development. 2003 SDSessL ch 272, §§ 58 and 59. GOED and its functions were transferred from the Department of Executive Management to the Department of Tourism and State Development. SDCL 1-52-3. The duties of the Governor’s Commissioner for Economic Development were transferred to the Secretary of the Department of Tourism and State Development. SDCL 1-52-3. However, SDCL 1-33-18 through 1-33-19.2 were not transferred to SDCL ch 1-52 at that time. In 2005 the legislature corrected various references in the statutory code. See 2005 SDSessL ch 10. SDCL 1-33-18 to 1-33-19.1 were transferred to SDCL 1-52-3.2 to 1-52-3.4.2005 SDSessL ch 10, §§ 14 to 16. Inexplicably, SDCL 1-33-19.2 was left behind in SDCL ch 1-33.

[¶ 27.] SDCL 1-33-19.2 requires the Secretary to “maintain the confidentiality” of any information given to GOED or the Economic Development Finance Authority, the South Dakota Development Corporation, and the Board of Economic Development. (emphasis added). Other statutes protect certain information provided to the agencies listed in SDCL 1 — 33— 19.2. SDCL 1-16B-14.1 protects trade secrets and commercial or financial information received by the Economic Development Finance Authority. SDCL 1-16G-11 protects trade secrets and commercial or financial information received by the Board of Economic Development or GOED.

[¶ 28.] The plain and ordinary meaning of “maintain” is “to continue; carry on; ... to preserve or keep in a given condition.” The American Heritage Dictionary 757 (2d College ed 1982). SDCL 1-33-19.2 must be considered together with SDCL 1-16B-14.1 and SDCL 1-16G-11. Contrary to the Secretary’s argument, SDCL 1-33-19.2 does not create confidentiality for information, rather it mandates that the Secretary continue (ie. maintain) the confidentiality of confidential information received by agencies under his authority. The invitation list itself is not a trade secret or other confidential information that is covered by SDCL 1-33-19.2. However, this determination does not mandate disclosure, particularly when the statute is considered in conjunction with its companion statute, SDCL 1-52-3.4, and the law that is applicable to mandamus.

[¶ 29.] SDCL 1-52-3.4 provides that “[a]ll information received” by GOED “shall be open to public inspection if it appears to the secretary that such inspection may assist in carrying out or furthering the purpose of the office, except if the provider of such information requests that the information remain confidential and not open to public inspection.” Here, the right to public inspection is conditional. Under this statute the legislature has given the Secretary discretion as to most of the information received by GOED. The provider of the information may prevent the Secretary from exercising his discretion. By its plain wording SDCL 1-52-3.4 limits disclosure of GOED information to that which “may assist in carrying out or furthering the purpose of the office[.]” Further, the statute gives the Secretary the discretion to make that determination.

[¶ 30.] In this case the Secretary averred that some of the persons invited to the Governor’s Hunt are specifically targeted business prospects and individuals in the business community of South Dakota who can facilitate the expansion or introduction of business in South Dakota. The prospects “are considered in an ongoing deliberative manner to target them for additional communication and solicitation.” The Secretary further stated that when a list of attendees of the Governor’s Invitational Buffalo Roundup was released, it was used by others for solicitation and resulted in an adverse reaction by attendees. The Secretary further stated that public dissemination of the list could lead to the disruption of business opportunities and business development. Thus, the Secretary determined that disclosure of the Governor’s Hunt list did not “assist in carrying out or furthering the purpose” of GOED. The Secretary exercised the discretion allowed to him ,under the statute and declined to make the list available to the public.

[¶ 31.] This Court has previously recognized “the State’s need for some modicum of confidentiality” while operating in the arena of private enterprise. Breck v. Janklow, 2001 SD 28, ¶ 28, 623 N.W.2d 449, 458. “We should not adopt an interpretation of a statute that renders the statute meaningless when the [[legislature obviously passed it for a reason.” Peterson v. Burns, 2001 SD 126, ¶ 30, 635 N.W.2d 556, 567-568 (citing Faircloth v. Raven Ind., Inc., 2000 SD 158, ¶ 9, 620 N.W.2d 198, 202). The legislature has created a statutory scheme that protects certain confidential information and allows for disclosure of other information under certain circumstances.

[¶ 32.] Moreover, when read in harmony, SDCL 1-27-1, 1-27-3, 1-27-33, 1-33-19.2 and 1-52-3.4 fail to provide the Secretary with a clear and unequivocal duty to provide public inspection of the invitation list and mandamus cannot issue.

D. Executive Privilege

[¶ 33.] Secretary Hagen also argues that he is entitled to keep the invitation list confidential on the basis of executive privilege. Given our analysis above, it is not necessary to reach this issue.

E. Constitutional Issues

[¶ 34.] This Court allowed the Associated Press, South Dakota Broadcasters’ Association, and South Dakota Newspaper Association to submit an ami-cus curiae brief in which they raise for the first time arguments that SDCL 1-33-19.2 violates the First Amendment to the United States Constitution. This claim was not previously raised by Argus Leader or considered by the trial court. Because the trial court did not rule on this issue, we decline to consider it. Beckel v. Gerber, 1998 SD 48, ¶ 24, 578 N.W.2d 574, 579 (citing Carr v. Core Indus., 392 N.W.2d 829, 830 (S.D.1986); Mash v. Cutler, 488 N.W.2d 642, 648 (S.D.1992)). We also note that the Attorney General did not have an opportunity to participate before the trial court. “[W]hen an adjudication of unconstitutionality may seriously affect the general public, it is proper for the Attorney General to appear on behalf of the [[legislature and the people.” West Two Rivers Ranch v. Pennington Cty., 1996 SD 70, ¶ 15, 549 N.W.2d 683, 687. See also SDCL 15—6—24(c).

[¶ 35.] We have recognized an exception when the constitutional question is a matter of considerable importance to the public policy of the state. Boever v. Board of Accountancy, 526 N.W.2d 747, 751 (S.D.1995) (citing Sharp v. Sharp, 422 N.W.2d 443, 446 (S.D.1988)). However, we have not automatically followed this exception unless the matter is an “existing emergency.” Id. As we stated in Johnson v. Powder River Transp., 2002 SD 23, 640 N.W.2d 739:

While this is a matter of substantial importance, this is not a matter of existing emergency. Given the situation as it is presented on appeal, we do not reach the issue. The people have a right to present their arguments, and that opportunity is waiting.

Johnson, 2002 SD 23, ¶ 32, 640 N.W.2d at 745 (citing Sharp, 422 N.W.2d at 446).

CONCLUSION

[¶ 36.] This case involves a question of statutory construction. The constitutional issue is not before us for the reasons expressed above. The remedy sought by the Argus Leader lies with the legislature. There is no statutory provision which creates a clear and unequivocal duty for the Secretary to make the invitation list available to the public. Absent such a duty, mandamus is not appropriate. The trial court did not abuse its discretion in denying the writ.

[¶ 37.] Affirmed.

[¶ 38.] SEVERSON, VON WALD, RUSCH and JENSEN, Circuit Judges, sitting by appointment, concur.

[¶ 39.] BASTIAN, SEVERSON, VON WALD, RUSCH, and JENSEN, Circuit Judges, sitting for GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, disqualified.

      . Hagen resigned as Secretary after this mandamus action was filed.

      . SDCL 1-27-9 provides in pertinent part:
      As used in §§ 1-27-9 to 1-27-18, inclusive:

      (2) “Record” means document, book, paper, photograph, sound recording, or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included within the definition of records as used in §§ 1-27-9 to 1-27-18, inclusive; ■

      (4) “State record” means:
      (a) A record of a department, office, commission, board, or other agency, however designated, of the state governmentf]

      . See e.g. SDCL 1-25-3 ("Any board or commission of the various departments of the State of South Dakota shall keep detailed minutes of the proceedings of all regular or special meetings. The minutes shall be available for inspection by the public at all times at the principal place of business of the board or commission.”); SDCL 4-1-2 (“A record of the proceedings of the State Board of Finance shall be kept in the Office of the Secretary of State and be open at all times to public inspection."); SDCL 4-8A-8 ("The Bureau of Finance and Management shall keep a record of all authorizations of transfers and make them available for public inspection.”); SDCL 4-11-3 (Special audit, investigation or examination of any charitable or nonprofit corporation on Governor's order filed with Secretary of State and open to public inspection); SDCL 5-18-18.2 ("A record of the names of the suppliers, the quotations received and the procurement procedures used in purchasing shall be documented, spread upon the minutes and retained on file by the governing board” of local unit of government.); SDCL 6-17-11 ("The person in charge of an election shall preserve all petitions requesting a resolution for at least two years. The petitions are open to public inspection upon reasonable request.”); SDCL 7-18A-23 ("The auditor shall preserve all petitions invoking the referendum for at least two years. The petitions shall be open to public inspection upon reasonable request.”); SDCL 10-12-7 (local levies filed with county auditor as permanent record and open to public inspection); SDCL 12-4-2 (county auditor to maintain voter registration records); SDCL 13-8-43 ("All reports, books, records, contracts, and papers in the office of the business manager relating to school business in the district shall be retained in the office of the business manager[.]”); SDCL 26-6-11 ("The final reports of inspections required by this chapter shall be kept on file by the Department of Social Services and shall be open to public inspection.”); SDCL 40-37-18 (“The secretary-treasurer of each predator control district shall keep accurate records of the proceedings of the board of directors and of all receipts and disbursements of district funds. Such records shall be open to public inspection.”); SDCL 46A-9-37 (The board of directors of water user districts "shall cause to be kept accurate minutes of its meetings and accurate records and books of account, conforming to approved methods of bookkeeping, clearly setting out and reflecting the entire operation, management, and business of the district.”). This list is not exhaustive, but demonstrates that the legislature knows how to require that a record or document be maintained or kept.

      . SDCL 1-33-18 addressed the purpose of GOED. SDCL 1-33-19 outlined the functions of GOED. SDCL 1-33-19.1 and 1-33-19.2 both addressed the treatment of information in the possession of GOED.

      . Argus Leader argues that the title of the statute, "Confidentiality of certain information,” is significant in determining its meaning. (emphasis supplied). Argus Leader relies on LaBore v. Muth, 473 N.W.2d 485, 488 (S.D.1991) which held "[w]hen called upon to construe statutes, this court may look to the legislative history, title, and the total content of the legislation to ascertain the meaning.” Argus Leader’s reliance is misplaced. In La-Bore, the Court relied on three cases: In re Certification of Question of Law, 402 N.W.2d 340 (S.D.1987); Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (S.D.1981); and Elfring v. Paterson, 66 S.D. 458, 285 N.W. 443 (1939). A review of those cases indicates that by the word "title” the Court was referring to the title of the legislative act, not the heading of the statute. In re Certification of Question of Law, 402 N.W.2d at 342 (the court may refer to the title of the legislation in an effort to interpret the statute at issue); Elfring, 285 N.W. at 445 (the language of the act, including its title, the history of its enactment, and the state of the law already in existence bearing on the subject, are all properly considered by the courts in arriving at the legislative intention); Oahe Conservancy Subdistrict, 308 N.W.2d at 562 (where the court recognized that legislative history may assist in determining the meaning of a statute but made no reference to any analysis of the title). This Court has held that the “title or heading of a statute may not be used to lessen or expand the meaning of the statute.” In re Certification of Question of Law, 402 N.W.2d at 343 (citing Olson v. City of Sioux Falls, 63 S.D. 563, 262 N.W. 85, 86 (1935)). See also SDCL 2-14-9 ("Source notes, cross-references, and titles whether designating entire titles, parts, chapters, sections, or subdivisions, constitute no part of any statute.”); Brim v. SD Board of Pardons & Paroles, 1997 SD 48, ¶ 15, 563 N.W.2d 812, 815.