author: G. BARRY ANDERSON, Judge

text:
    In the Matter of the WELFARE OF N.T.K., Appellant.
    No. C2-00-750.
    Court of Appeals of Minnesota.
    Nov. 28, 2000.

      William E. McGee, Fourth District Public Defender, Warren R. Sagstuen, Assistant Public Defender, Renee J. Bergeron, Assistant Public Defender, Minneapolis, MN, (for appellant).
    Mike Hatch, Minnesota Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant Hennepin County Attorney, Minneapolis, MN, (for respondent).
    Considered and decided by HARTEN, Presiding Judge, KLAPHAKE, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge

Appellant N.T.K., a juvenile, appeals the district court’s delinquency disposition order, arguing that the evidence does not support his placement and that the district court’s findings of fact are insufficient. Because the district court’s findings of fact do not adequately address the statutory factors necessary to support the placement order as required by Minn.Stat. § 260B.198, subd. l(m) (Supp.1999), and Minn.R.Juv.P. 15.05, subd. 2(A), we reverse and remand for the limited purpose of requiring the district court to conduct an expedited review of this case and make adequate written findings.

FACTS

In July 1998, appellant, now 17 years old, pleaded guilty to first-degree damage to property and disorderly conduct. The district court adjudicated appellant delinquent and ordered him placed at Woodland Hills, a residential treatment facility. In April 1999, appellant successfully completed the program, and as part of the required program aftercare, enrolled in Ka-tadin School, an intensive day-treatment program. Appellant periodically disappeared from home and failed to report to Katadin on May 3, 1999. Appellant’s probation officer ordered him detained.

At a May 26, 1999 disposition hearing, appellant admitted violating his probation and committing a new instance of disorderly conduct. On June 3, 1999, the district court adjudicated appellant delinquent on the new charge and ordered his placement at Gateway Group Home. The group home discharged appellant on June 6, 1999 for fighting with another resident, and the state charged appellant with new counts of disorderly conduct and criminal damage to property. The court adjudicated appellant delinquent based on the disorderly conduct charge. Hennepin County probation officers regarded appellant as a risk to himself and others, and the court accepted the probation officer’s recommendation that appellant be detained and receive mental-health evaluations. On July 19, 1999, the district court placed appellant at the David Ward Group Home.

Appellant again failed to comply with the conditions of his probation by absenting his home, failing to comply with random urinalysis, failing to attend court-ordered counseling, and failing to take medication. The state and appellant negotiated an agreement whereby appellant would complete a consequence-based program and then seek work and a high-school diploma or GED while living with and working for a family friend in Tennessee. Consistent with the probation officer’s recommendation, the district court’s order provided for “stayed out of home placement to Commissioner of Corrections at Red Wing or County Home School.”

Appellant completed the program and arrived in Tennessee on February 21, 2000. Unable to enroll in school because he did not live with his legal guardian, appellant did not do any meaningful work for the friend. Claiming, among other things, that he missed his mother, appellant returned to Minnesota in early March. Upon his return to Minnesota, at the request of his probation officer, he was taken into custody.

After two March 2000 hearings, the district court determined that appellant’s departure from Tennessee was not a probation violation, but did constitute a failed placement. The district court lifted the stay and, based on probation’s recommendation that appellant needed a structured-consequence program, committed appellant to the corrections department juvenile facility in Red Wing, Minnesota. The order provided that once appellant successfully completed that program, juvenile-court jurisdiction would be dismissed.

Appellant contests the placement order, arguing that the sanction was disproportionate to his offenses and that the court did not make the statutorily required written findings of fact.

ISSUE

Did the district court commit reversible error by failing to support appellant’s Red Wing placement with written findings of fact?

ANALYSIS

District courts are afforded broad discretion in determining appropriate juvenile-delinquency dispositions, and we affirm dispositions that are not “arbitrary.” In re Welfare of J.A.J., 545 N.W.2d 412, 414 (Minn.App.1996). A delinquency disposition is lawful only if necessary to the rehabilitation of the child. Minn.Stat. § 260.185, subd. 1 (1998). A disposition calling for out-of-home placement must be supported by evidence that the placement is the least drastic step necessary to restore law-abiding conduct. In re Welfare of M.R.S., 400 N.W.2d 147, 151 (Minn.App.1987).

In addition, a district court ordering out-of-home placement is required to make findings of fact that show (l)-why public safety is served by the disposition; (2) why the best interests of the child are served by the disposition; (3) what alternative dispositions were proposed to the court and why such recommendations were not ordered; (4) why the child’s present custody is not acceptable; and (5) how the correctional placement meets the child’s needs. Minn.Stat. § 260B.198, subd. l(m) (Supp.1999); Minn.R.Juv.P. 15.05, subd. 2(A).

Written findings are essential to meaningful appellate review. In re Welfare of L.K.W., 372 N.W.2d 392, 401 (Minn.App.1985). Findings are also required to show that the district court considered vital standards and to enable the parties to understand the court’s decision. Id. at 400-401. For these reasons, we have repeatedly emphasized the importance of findings in our many published decisions that hold inadequate juvenile disposition findings constitute reversible error. See id. (holding insufficient findings are an independent basis for reversal); see also In re Welfare of J.S.S., 610 N.W.2d 364, 368 (Minn.App.2000) (reversing for failure to make sufficient statutorily required written findings of fact); In re Welfare of C.A.W., 579 N.W.2d 494, 499 (Minn.App.1998) (reversing where district court’s findings did not address the factors necessary to justify out-of-home placement); In re Welfare of J.A.J., 545 N.W.2d 412, 415 (Minn.App.1996) (reversing where findings insufficient to support residential treatment); In re Welfare of M.A.C. 455 N.W.2d 494, 499 (Minn.App.1990) (explaining that the failure to make statutorily required written findings warrants reversal); In re Welfare of M.R.S., 400 N.W.2d 147, 150-51 (Minn.App.1987) (observing that four single sentence findings with little elaboration insufficient); In re Welfare of L.B., 404 N.W.2d 341, 346 (Minn.App.1987) (stating insufficient written findings constitutes reversible error even though record indicates court considered options and had good reasons for its choice).

In this case, appellant argues and the state concedes that the district court failed to make sufficient written findings to support the Red Wing placement. The district court found, in two sentences, that the Tennessee “placement failed” and that the Red Wing commitment was “the least restrictive alternative necessary to return [appellant] to law-abiding behavior.” Though these factual findings may be read to address some of the factors and the evidence may very well ultimately support the disposition, the findings lack the completeness required by statute and rule.

In this case, the inadequate findings prevent us from undertaking effective review of the Red Wing placement. Mindful of the seven months appellant has already spent in the Red Wing facility, we reverse and remand for the limited purpose of requiring the district court to undertake an expedited review of this matter, including appellant’s progress to date, and issue written findings of fact comporting with the statutory and rule requirements.

DECISION

The district court’s failure to make adequate written findings in accordance with Minn.Stat. § 260B.198, subd. l(m) (Supp.1999), and Minn.R.Juv.P. 15.05, subd. 2(A), to support the juvenile-delinquency disposition requires reversal and remand.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    2000 SD 142
    STATE of South Dakota, Plaintiff and Appellee, v. Iliya N. NIKOLAEV, Defendant and Appellant.
    No. 21367.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 25, 2000.
    Decided Nov. 15, 2000.
    Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    D. Sonny Walter, Sioux Falls, SD, Attorney for defendant and appellant.
   PER CURIAM

[¶ 1.] Iliya N. Nikolaev appeals his judgment of conviction for third degree rape claiming the trial court erred in accepting his guilty plea without complying with SDCL 23A-7-5. We affirm.

FACTS AND PROCEDURE

[¶2.] On May 19, 1999, Nikolaev was charged with two counts of third degree rape involving his 14-year-old niece. The victim, L.C., immigrated to this country with her father and siblings from Ukraine in October 1998. She testified at the preliminary hearing that her uncle Nikolaev, age 33, had sexual intercourse with her four or five times between October 1998 and March 1999 and that this sexual abuse began 2-3 days after her arrival in Rapid City.

[¶ 3.] Although Nikolaev indicated he could “speak a good deal of English,” the trial court utilized a Russian/English translator at the arraignment, preliminary hearing, status hearing, and plea hearing to explain Nikolaev’s rights and the ramifications of the criminal charges against him as well as the consequences of pleading guilty. Nikolaev pled guilty to statutory rape, a Class 3 felony, in exchange for the State’s dismissal of the second count of third degree rape and for the State’s agreement not to make a sentence recommendation to the court. The court accepted Nikolaev’s plea and sentenced him to serve fifteen years in the state penitentiary. Seven years of this sentence were suspended on the condition that Nikolaev obtain sex offender counseling, pay for L.C.’s counseling for fifteen years and pay court costs.

[¶ 4.] Nikolaev appeals, claiming the trial court failed to comply with the statutory mandates of SDCL 23A-7-5 before accepting his plea.

ANALYSIS AND DECISION

[¶ 5.] SDCL 23A-7-5 provides in pertinent part that:

A court, except as provided in this section, shall not accept a plea of guilty ... without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. It shall also inquire as to whether the defendant’s willingness to plead guilty ... results from prior discussions between the prosecuting attorney and the defendant or his attorney.

This portion of SDCL 23A-7-5 is derived from and is virtually identical to Federal Rule of Criminal Procedure 11(d). Niko-laev did not present his claim of violation of this statute to the trial court, however his appeal is reviewed for plain error. “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” SDCL 23A-44-15; State v. Baker, 440 N.W.2d 284, 291 (S.D.1989). See United States v. Hernandez-Fraire, 208 F.3d 945, 949 (llthCir.2000) (Rule 11 violations not previously presented to the trial court are reviewed for plain error).

[¶ 6.] Nikolaev claims that the sentencing court failed to comply with the statutory mandates prior to accepting his guilty plea, and that this failure, especially when combined with his difficulty with the English language and unfamiliarity with the criminal justice system, requires automatic reversal. Specifically, Nikolaev claims the court never asked him about any “promises apart from a plea agreement.”

[¶ 7.] On the record, there appears no confusion attributable to the language barrier and no issue that the defendant was not informed at least twice by the court as to the maximum sentence that could be imposed in his case. As previously noted, an interpreter was utilized at all of the hearings and one continuance was granted so that Nikolaev could more fully consider the plea bargain. Both his attorney and the court explained the criminal justice system and procedures and his constitutional rights. These included Nikolaev’s Boykin rights as mentioned in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Anderson, 1998 SD 98, ¶6, 583 N.W.2d 151, 153. The duty to explain these rights on the record belongs to the trial court and not to the defendant’s attorney. Croan v. State, 295 N.W.2d 728, 729 (S.D.1980). The court, on several occasions, reminded Nikolaev to indicate if he did not understand and asked him to repeat back to the court his understanding of what was being communicated. After reviewing his rights with the defendant at the plea hearing, the court asked if he wanted to “go through them again.” Nikolaev responded, in English, “No thanks, I understand all.” The court had also requested that the interpreter indicate if he felt Nikolaev was not understanding something. The interpreter made no such indication. The court was satisfied that Nikolaev understood the proceedings and his rights and all that was being communicated at the hearings.

[¶8.] The trial court asked Nikolaev if anyone had threatened or forced him to plead guilty to which he responded, through the interpreter, “that nobody threatened or forced him to make this decision and he wants to say thank you to his attorney who really made him understand what was going on and why under American laws he was guilty.” Nikolaev then explained to the court the factual basis for the plea. Nikolaev admitted he had sexually penetrated L.C. in Rapid City and that he knew “he did something really wrong” although he also tried to negate his conduct by claiming his niece desired the act and that he was attracted to her because she looked like his deceased sister. The judge read, in open court, a letter from L.C. indicating the horrific effect her uncle’s criminal conduct had upon her and how her life and perspectives had changed because of it.

[¶ 9.] In State v. Robinson, 469 N.W.2d 876, 378 (S.D.1991), we explained the requirements before a trial court could accept a guilty plea:

As a matter of federal constitutional law, ‘[a] plea of guilty cannot stand unless the record in some way indicates a free and intelligent waiver by the defendant of his constitutional right to confront and cross-examine witnesses against him, his constitutional right to trial by jury, and his constitutional privilege against self-incrimination.’ In addition to waivers of these three ‘Boykin rights’ the record must disclose, as a matter of South Dakota law, that the defendant understood the nature and consequences of his plea. While there is no set formula for establishing on the record the voluntariness of a guilty -plea, ‘the trial court must normally inform the defendant of these rights personally to insure that the record indicates a free and intelligent waiver of these rights.’ The court’s obligation to satisfy itself as to each of these four prerequisites before accepting a guilty or a guilty but mentally ill plea by ‘addressing the defendant personally in open court’ and making a record of it are codified at SDCL 23A-7-4, 23A-7-5, 23A-7-15, and 23A-7-16.

(internal citations omitted) (emphasis added).

[¶ 10.] We stated in Lien v. Class, 1998 SD 7, ¶ 31, 574 N.W.2d 601, 612 that we look at the “totality of the circumstances” in determining whether a plea was voluntarily made. As noted in Robinson, supra, there is “no set formula” required and thus, substantial compliance with the protections prescribed in SDCL 23A-7-5 is sufficient. See State v. Van Egdom, 292 N.W.2d 586, 589 (S.D.1980) (substantial compliance rather than verbatim reading of plea agreement is sufficient in meeting requirements of SDCL 23A-7-9, derived from Rule 11(e)); Abdi v. State, 608 N.W.2d 292, 297 (N.D.2000) (substantial compliance sufficient in meeting requirements of North Dakota statute derived from Rule 11(d)); United States v. Gonzalez, 820 F.2d 575, 578 (2nd Cir.1987) (compliance with Rule 11 does not require “reading the specified items in haec verba [in these words].”); United States v. Martinez, 486 F.2d 15, 21 (5thCir.l973) (“So long as the trial judge is convinced by the record before him that a guilty plea is not coerced, a further showing that the plea is knowingly entered and that there exists sufficient evidence of guilt will satisfy the requirements of Rule 11.”); United States v. Scharf, 551 F.2d 1124, 1129 (8th Cir. 1977) (“district courts are required to act in substantial compliance with [Rule 11] although ... ritualistic compliance is not required.”); Hernandez-Fraire, 208 F.3d at 950. Federal Rule 11(h) provides that “[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” If the trial court has made a determination, upon the entire record and by inquiry of the defendant in open court, that the plea is voluntary, it is by definition not the result of threats, force or promises made apart from the plea agreement, or any other form of coercion. The trial court in this case did not fail to address this core concern.

[¶ 11.] Nikolaev relies on Gonzalez in which an interpreter was also used and in which the trial court neglected to ask whether Gonzalez’ guilty plea was voluntary and “not the result of promises ... apart from a plea agreement.” 820 F.2d at 579. In that case, the appeals court found that comments made about the defendant’s first offender status and the court’s giving credit for a guilty plea “may have been misconstrued by appellant to be an assurance that he would not be sentenced to prison.” Id. The appellate court vacated the judgment of conviction and remanded for repleading.

[¶ 12.] In the present case, Nikolaev assured the trial court that his plea was voluntary and that he fully understood the plea agreement which included the State’s promise that it would not recommend any sentence. Because the plea agreement included this promise, and because the court informed Nikolaev twice on the record that the maximum sentence was 15 years in prison and a $15,000 fine, there could be no misunderstanding about the sentence as in Gonzalez. Review of this record under the “totality of the circumstances” standard indicates that the defendant was advised of and understood his constitutional rights, that his plea was voluntarily and intelligently made and that the trial court complied with the substance of SDCL 23A-7-5. This is all that is required. Moreover, Nikolaev makes no claim that any promises apart from the plea agreement, the harm sought to be avoided, were made to him. See United States v. Jones, 143 F.3d 1417, 1420 (11th Cir.1998) (“A defendant is entitled to replead only if the district court’s variance from the formal requirements of Rule 11 impinged upon the very rights they were designed to protect.”).

[¶ 13.] The record indicates Nikolaev understood the nature and consequences of his plea, that he understood his constitutional rights and the ramifications of waiving those rights, and that a factual basis existed for the plea. State v. Wika, 464 N.W.2d 630, 634 (S.D.1991). A deficiency in this record, if any, caused by the trial court’s failure to specifically ask Nikolaev whether he was made any promises apart from the plea agreement, does not rise to the level of prejudicial error. The record shows the trial court substantially complied with the requirements of SDCL 23A-7-5 (Rule 11(d)) and we affirm.

[¶ 14.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, participating.

      . Nikolaev was informed of the maximum sentence that could be imposed at the arraignment hearing on August 11, 1999 and again at the plea hearing on September 29, 1999. Moreover, SDCL 22-6-1(5) provides the sentence for a Class 3 felony and all defendants are presumed to know the law. State v. Dorhout, 513 N.W.2d 390, 395 (S.D.1994).

      . Nikolaev also relies on State v. Gagne, 421 N.W.2d 502 (S.D.1988) and State v. Sutton, 317 N.W.2d 414 (S.D.1982), neither of which is dispositive of this appeal. Gagne involved reversal of a judgment because the trial court failed to advise the defendant of his three Boykin rights. That did not occur here. In Sutton, we reversed and remanded because the trial court failed to advise the defendant of his right to a trial by a jury in the county in which the crime was committed and further failed to canvass the defendant for a factual basis for his guilty plea. Such is not the case here.


author: AMUNDSON, Justice GILBERTSON, Justice

text:
    2000 SD 141
    STATE of South Dakota, Plaintiff and Appellee, v. David G. BECK, Defendant and Appellant.
    No. 21137.
    Supreme Court of South Dakota.
    Considered on Briefs on May 30, 2000.
    Decided Nov. 15, 2000.

      Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.
    Deborah A. Birgen, Sioux Falls, SD, Attorney for defendant and appellant.
   AMUNDSON, Justice

[¶ 1.] David Beck appeals the revocation of his probation and the jail sentence imposed after the revocation. We reverse and remand.

FACTS

[¶2.] On August 31, 1998, Beck was indicted in Lincoln County, South Dakota for one count of possession of less than one-half pound of marijuana. The offense carried a maximum penalty at that time of one year in the county jail and/or a fine of one thousand dollars. See SDCL 22-42-6 (Supp.1997); SDCL 22-6-2(1). After plea bargaining, Beck entered a guilty plea to the marijuana charge on September 8, 1998. He was sentenced to one year in the county jail and fined $250. The jail sentence was suspended and Beck was placed on probation for two years. The conditions of probation included a requirement that Beck should “obey all federal and state laws and municipal ordinances.” The conditions also included a requirement that Beck notify his court services officer of any change in his employment, educational or residency status.

[¶ 3.] As a result of his probationary status, Beck was also subject to periodic urinalysis. A court services officer obtained a urine sample from Beck on March 10, 1999 and submitted the sample to the State Health Laboratory for analysis. On March 15, the laboratory reported that Beck’s THC screen for marijuana use and his amphetamine/methamphetamine screen were positive. That same date, the court services officer issued a probation violation report based upon the requirement that Beck obey all federal and state laws and municipal ordinances. Three days later; the State filed a petition to revoke Beck’s probation.

[¶ 4.] On March 22, Beck was served with notice of the petition for revocation of his probation and notice of a revocation hearing set for April 5. Beck failed to appear for the hearing and a bench warrant was issued for his arrest. On April 21, a second probation violation report was filed alleging that Beck had absconded from the jurisdiction.

[¶ 5.] Beck was eventually apprehended and a new probation violation hearing was set for July 21. Only Beck’s court services officer testified at the hearing. However, over Beck’s objection, the State also introduced the written laboratory report indicating his positive drug tests. At the close of the hearing, the trial court found Beck violated his probation by using marijuana and/or amphetamines/methamphetamine and by failing to appear for his first probation revocation hearing. On that basis, the trial court revoked Beck’s probation and sentenced him to the county jail for 365 days. Beck appeals.

ISSUE 1

[¶ 6.] Is the evidence sufficient to sustain the revocation of Beck’s probation?

[¶ 7.] The standard of review in probation revocation cases is set forth in State v. Christian, 1999 SD 4, ¶ 12, 588 N.W.2d 881, 883:

“The revocation of a suspended sentence ... is not a decision to be made at the court’s pleasure.” Bell, 369 N.W.2d at 142 (citing Application of Jerrel, 77 S.D. 487, 492, 93 N.W.2d 614, 617 (1958)).
[Pjroof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking probation. A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.
Bell, 369 N.W.2d at 142 (alterations in original) (quoting State v. Elder, 77 S.D. 540, 544, 95 N.W.2d 592, 594 (1959) (citation omitted)).

[¶ 8.] Beck argues that, even under this burden of proof, there is insufficient evidence to sustain the revocation of his probation. He contends the evidence is insufficient because the trial court erred in admitting the written Health Lab report into evidence. Absent that report, Beck asserts there is insufficient evidence he violated his probation.

[¶ 9.] Beck argues the trial court erred in admitting the lab report because it failed to require live foundation testimony from the person who prepared it. Beck contends such a procedure violates the Confrontation Clause. He further contends an inadequate foundation was laid for the report’s introduction and that the State failed to establish a sufficient chain of custody over his urine sample to warrant admission of the report.

[¶ 10.] SDCL 28-3-19.3 provides:

A copy of a statement of the methods and findings of any examination or analysis conducted by employees of the state forensic laboratory or by a certified chemist employed by a law enforcement agency within the state, authenticated under oath by the employee, is prima facie evidence in all grand jury and court proceedings in the State of South Dakota of the facts contained therein reciting the methods and findings.
The statement has the same force and effect as if the person who performed the analysis or examination had testified in person. An accused person or the accused’s attorney may request that the person in the state forensic laboratory or the certified chemist employed by a law enforcement agency within the state, who conducted the examination testify in person at a criminal trial concerning the examination or analysis.

While on its face, this statute would appear to support the admission of the lab report into evidence, the lab report was not “authenticated under oath” as the statute requires. Moreover, a statute is subject to Constitutional standards and limitations. In United States v. Bell, 785 F.2d 640 (8th Cir.1986), the United States Court of Appeals for the Eighth Circuit specifically considered the admissibility of written urinalysis reports in probation revocation proceedings in light of Confrontation Clause requirements. The court observed:

In [Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ], the Supreme Court held that the Sixth Amendment confrontation clause affords parolees in parole-revocation proceedings
the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). [But such proceeding nevertheless is a] narrow inquiry ... flexible enough to consider ... material that would not be admissible in an adversary criminal trial.
408 U.S. at 489, 92 S.Ct. at 2604. [Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ] held that probationers are entitled to the same rights as Morrissey held applicable to parolees. 411 U.S. at 782, 93 S.Ct. at 1759.

Bell, 785 F.2d at 642.

[¶ 11.] Recognizing the need to balance Confrontation Clause requirements with legitimate government concerns over “the difficulty and expense of procuring distant witnesses” (Bell, 785 F.2d at 642), the court went on to hold in Bell that:

[T]he trial court in a probation-revocation proceeding must balance the probationer’s right to confront a witness against the grounds asserted by the government for not requiring confrontation. As is true of any balancing test, it is not possible to articulate fixed rules on what the government must show to establish “good catise” in every case. However, there are several factors which should be evaluated in examining the basis cited by the government for dispensing with confrontation.
First, the court should assess the explanation the government offers of why confrontation is undesirable or impractical. For example, the government might contend that ... procuring live witnesses would be difficult or expensive.
A second factor that must be considered, and one that has been focused upon by a number of courts, is the reliability of the evidence which the government offers in place of live testimony. Thus, where the government demonstrates that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable, it has made a strong showing of good cause. Where, on the other hand, the government neither shows that presenting live testimony would be unreasonably burdensome nor offers hearsay evidence that bears indicia of reliability, the probationer is entitled to confrontation.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
The urinalysis laboratory reports bear substantial indicia of reliability. They are the regular reports of a company whose business it is to conduct such tests, and which expects its clients to act on the basis of its reports. Moreover, we note that no evidence was presented to contradict [the probationer’s] drug usage, and that [the probationer] has made only general, unsubstantiated claims that the laboratory tests may have been defective. We conclude that under these circumstances there was good cause to permit the government to avoid the difficulty and expense of bringing the chemist or chemists who performed the tests from California to Arkansas to testify. In our experience, that sort of formal testimony rarely leads to any admissions helpful to the party challenging the evidence.

Bell, 785 F.2d at 642-43 (citations and footnotes omitted).

[¶ 12.] The principles enunciated in Bell were more recently applied by the Eighth Circuit in U.S. v. Grimes, 54 F.3d 489 (8th Cir.1995). In Grimes, a probationer’s supervised release was revoked after a positive cocaine test. During the revocation hearing, the probationer denied using cocaine, but the government introduced a laboratory report indicating his urine sample had tested positive for the substance. The government also offered a chain of custody form on which the probationer had certified that the urine specimen he provided was sealed in his presence and was assigned a particular specimen number. The laboratory report contained a certification from the technician who tested the specimen that its identification number matched the one referenced by the probationer, that it arrived at the laboratory properly sealed and that the specimen was, “examined, handled, and analyzed in accordance with applicable requirements.” Grimes, 54 F.3d at 490. The government also offered an affidavit from the laboratory’s director of toxicology describing the laboratory’s standard testing methodologies and quality control procedures. The probationer objected to admission of the laboratory report as unreliable and incomplete and to the director’s affidavit as irrelevant because it did not explain the testing procedures used in his particular case. The government contended the affidavit demonstrated the reliability of the test results. The trial court admitted the disputed evidence, found that the urine sample provided by the probationer had tested positive for cocaine and further found that the probationer had violated the conditions of his supervised release. In reviewing the sufficiency of the evidence on appeal, the court held:

The other evidence in the record supports the district court’s conclusion that [the probationer] tested positive for cocaine. The laboratory reports bore indi-cia of reliability. [The probationer] certified that the urine sample he provided was sealed in his presence and assigned a particular specimen number. The technician who performed the laboratory tests certified that the specimen he tested had been properly sealed and that its label bore the identification number reported by [the probationer]. He further certified that it had been examined, handled, and analyzed in accordance with applicable requirements. This evidence was sufficient to allow the district court to conclude that the specimen which tested positive had been provided by [the probationer], and that it had been collected and tested in accordance with the probation office handbook and the procedures outlined in the [director’s] affidavit. We conclude that the district court did not abuse its discretion in admitting the disputed evidence, and the evidence was sufficient to permit a finding that [the probationer] had violated the condition prohibiting use of controlled substances.

Grimes, 54 F.3d at 493.

[¶ 13.] The trial court in the instant case failed to follow the requirements of SDCL 23-3-19.3 for introduction of the lab report and followed none of the safeguards outlined in Bell and Grimes for the protection of Beck’s rights of confrontation. Under SDCL 23-3-19.3, the lab report should have been “authenticated under oath” as a predicate for its admission. It was not. Moreover, with regard to the safeguards outlined in Bell and Grimes, there was no on-record balancing of confrontation rights against the grounds asserted by the State for not requiring confrontation nor were there any findings of good cause for dispensing with confrontation. Although the lack of such findings is not, in itself, fatal to admission of a written lab report (see Bell, 785 F.2d at 643 n. 3), it inhibits development of a complete record as to why confrontation is undesirable or impractical. More importantly, it inhibits development of a complete record on the reliability of the evidence the government is offering in the place of live testimony.

[¶ 14.] In this case, in contrast with Grimes, supra, a complete record was not developed on the chain of custody of Beck’s urine sample or on the methodology or quality control procedures followed by the Health Lab in analyzing the sample. In short, no record was developed on the reliability of the lab report. Absent a demonstration of reliability, the trial court erred in admitting the lab report into evidence. Bell, supra; Grimes, supra. Moreover, absent the lab report, there is no evidence of a probation violation by Beck. His failure to appear at his initial revocation hearing cannot be relied upon in this regard because the record fails to reflect he ever received written notice that his failure to appear could serve as grounds to revoke his probation. See Christian, supra (written notice of claimed violations is one of the minimum due process requirements of parole or probation revocation).

[¶ 15.] The dissent would ignore these errors on the grounds of a waiver predicated on Beck’s failure to assert his confrontation rights before the trial court in the form of a more specific objection to the introduction of the lab report. Beck did, however, object to the adequacy of the foundation for admission of the report and the foregoing authorities clearly establish the foundation was deficient. Moreover, this Court may address constitutional issues sua sponte. See Bayer v. Johnson, 349 N.W.2d 447, 449 (S.D.1984). See also State v. Baker, 440 N.W.2d 284, 293 (S.D.1989). It is particularly important that it do so “when the constitutional question is a matter of considerable importance to the public policy of the state.” Boever v. South Dakota Bd. of Accountancy, 526 N.W.2d 747, 751 (S.D.1995). Here, the constitutional question involves the State’s reliance on an evidentiary statute of questionable constitutional validity (i.eSDCL 23-3-19.3) and the resultant disregard of fundamental constitutional rights. In such circumstances, it is entirely appropriate for this Court to address the issue sua sponte even if the objection before the trial court was inartful or otherwise insufficient to preserve the error for review. See Gallion v. State, 469 So.2d 1247, 1249 (Miss.1985)(exception to rule that questions cannot be raised for first time on appeal exists where errors at trial affect fundamental rights). See also United States v. Ordonez, 737 F.2d 793, 799 (9th Cir.1983)(contention that government failed to comply with confrontation clause involves substantial rights which must be reviewed even absent a timely objection).

[¶ 16.] Based upon the foregoing, the revocation of Beck’s probation is reversed and the matter is remanded for a trial court determination of the reliability of the lab test results and the admissibility of those results pursuant to the requirements set forth above. This certainly does not place too onerous a burden on counsel and the court when dealing with a basic constitutional right such as confrontation. Given our resolution of this issue, it is unnecessary to address Beck’s remaining issues.

[¶ 17.] Reversed and remanded.

[¶ 18.] SABERS and KONENKAMP, Justices, concur.

[¶ 19.] MILLER, Chief Justice, and GILBERTSON, Justice, dissent.

GILBERTSON, Justice

(dissenting).

[¶ 20.] I respectfully dissent.

[1121.] I agree with the Court that SDCL 23-3-19.3 on its face provides support for admission of the lab report into evidence. However, the Court seeks to go beyond this evidentiary issue and enters the realm of constitutional law by engaging in confrontation clause analysis. The confrontation clause rationale relied upon by this Court was never raised at the revocation hearing nor was it properly raised by Beck in this appeal.

[¶ 22.] At the revocation hearing, Beck did not seek an opportunity to exercise his rights under the confrontation clause by confronting and cross-examining Stacy Ell-wanger of the State Health Laboratory who authored the report, despite the fact that confrontation rights are specifically recognized by SDCL 23-3-19.3. Beck’s objection was limited to foundational and chain of custody grounds:

Your Honor, I would object. I see no certification or signature from Stacy Ell-wanger, who’s reported to be the chemist on that. I also would object because there is a lack of sufficient foundation in regards particularly to the chain of evidence and chain of custody.

This Court has consistently held that issues should be handled by the trial court and not brought up for the first time on appeal to this Court. Satellite Cable Services, Inc. v. Northern Electric, 1998 SD 67 ¶ 10, 581 N.W.2d 478, 481.

[¶ 23.] Beyond that default at the hearing, the confrontation clause issue was also never properly raised by Beck in this appeal. SDCL 15-26A-60 states in part: “[t]he brief of the appellant shall contain ... (4)[a] concise statement of the legal issue or issues involved.... ” The issue as framed by Beck and discussed by this Court is as follows: “[i]s the evidence sufficient to sustain the revocation of Beck’s probation?” The issue as drafted by Beck makes no claim of a constitutional violation of any kind.

[¶24.] In addition, neither brief prepared by Beck makes any reference to either the Sixth Amendment to the United States Constitution or article VI section 7 of the South Dakota Constitution. There is also no citation in his first brief to any case law authority along this line. Failure to cite supporting authority results in a waiver of that claim. State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599 (citing to SDCL 15-26A-60(6)).

[¶ 25.] Understandably the State’s brief never mentions the words “confrontation clause” or anything akin to it and the Court’s citation in footnote one to the quote from the State’s brief is an admission as such. Thus, the reference to the comment by Beck in his rebuttal brief to the confrontation clause is in violation of SDCL 15-26A-62: “[t]he appellant may file a brief in reply to the brief of the appellee. The reply brief must be confined to new matter raised in the brief of the appellee.”

[¶ 26.] Beyond the issue of proper application of the numerous procedural defaults in this case by Beck, most troublesome is the Court’s addressing the confrontation clause issue sua sponte. This denies us a properly developed record and the benefit of proper briefing and appellate argument. A review of the authority cited by the Court, Bayer v. Johnson, 349 N.W.2d 447, 449 (S.D.1984), and State v. Baker, 440 N.W.2d 284, 293 (S.D.1989) shows that the invocation of this doctrine has been used most sparingly and then only in important eases of permanent state wide implication. I respectfully submit that invocation of that doctrine in this case is not appropriate. The Court concedes that its recognition of a confrontation clause violation merely results in a remand for a new hearing at which time all the State has to do is little more than to produce the same document this time with proper authentication.

[¶27.] There is sufficient evidence to sustain the revocation. I would affirm the circuit court on all issues and for the above reasons respectfully dissent.

[¶ 28.] MILLER, Chief Justice, joins this dissent.

      . The dissent asserts that confrontation clause issues were not raised by Beck in this appeal. However, in his principal brief, Beck asserts that, ”[b]y failing to provide even affidavits showing that the proper chain of custody was observed, the Defendant was denied his right to confront his witnesses.” In his reply brief, Beck further elaborates that “[w]hile the rules of evidence do not apply [in probation revocation hearings], the Defendant does not lose all constitutional rights of confrontation. United States v. Reynolds, 49 F.3d 423 (8th Cir. 1995).” The State’s brief addressed the confrontation argument with the observation that "a probation revocation proceeding is not a criminal proceeding, and the burden of proof is not the same.” Thus, confrontation ■ was raised and addressed by both parties to this appeal.


author: KONENKAMP, Justice

text:
    2000 SD 143
    Andrew G. RIDLEY, Kimmie D. Ridley, Centennial Prairie Ranch, Inc. and Red Banks Ranch, Inc., Petitioners and Appellants, v. LAWRENCE COUNTY COMMISSION, Appellee, and Frawley Ranches, Inc., Intervenor Appellee.
    Nos. 21386, 21409.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 25, 2000.
    Decided Nov. 21, 2000.

      Reed C. Richards of Richards and Richards, Deadwood, SD, Attorneys for petitioners and appellants.
    Bruce Outka, Lawrence County Deputy State’s Attorney, Deadwood, SD, Commission, Attorney for appellee Lawrence County.
    Brad P. Gordon of Fuller, Tellinghuisen, Gordon and Percy, Spearfish, SD, Attorney for intervenor appellee, Frawley Ranches, Inc.
   KONENKAMP, Justice

[¶ 1.] By petition for writ of certiorari in circuit court, certain residents and family farm corporations challenged the Lawrence County Commission’s approval of zoning changes on the Frawley Ranch. The circuit court dismissed the petition, holding that the exclusive remedy was an appeal under SDCL 7-8-32. We affirm, finding that the Legislature set the method to challenge the decision of a county commission via the appeal process. We also affirm the circuit court’s refusal to assess disbursements and attorney fees against the petitioners.

A.

[¶ 2.] Frawley Ranches, Inc., a domestic corporation, owns approximately 4,000 acres in Lawrence County, South Dakota.. In 1998 Frawley began preparations for a Planned Unit Development on 1,000 acres of its property. The development included retail, commercial, recreational, and residential features. The property, however, was zoned A-l agricultural. Frawley applied for a zoning change and gave notice to the public under SDCL 11-2-29 and to the abutting landowners under SDCL 11-2-28.1.

[¶ 3.] On September 2, 1999, the Lawrence County Planning and Zoning Commission considered Frawley’s various rezoning proposals. At this meeting, the petitioners, whose properties adjoin the Frawley Ranch, voiced their objections. They asserted that the project was prohibited by the Lawrence County Comprehensive Plan for development. After hearing from all interested parties, the Zoning Commission recommended approval of the zoning changes, the Conditional Use Permit, and the Planned Unit Development overlay, and recommended denial of the Planned Unit Development portion of the proposal. On October 12, 1999, after further public input and discussion, the Lawrence County Commission voted on and approved each separate rezoning request, the Conditional Use Permit, and the Planned Unit Development overlay contingent upon Lawrence County entering into a development agreement with Frawley. It disapproved the proposed Planned Unit Development for the Suburban Residential Zoning District.

[¶ 4.] Following this decision, the petitioners sought a writ of certiorari in circuit court, requesting that the commission’s approval of the proposed development be “reversed and annulled.” The circuit court issued an order to show cause, requiring the commission to appear and explain why the court should not issue a writ of certio-rari. Frawley was permitted to intervene under SDCL 15-6-24. On November 24, 1999 the court denied the petitioners’ request for certiorari, finding that the petitioners’ only remedy was to appeal under SDCL Chapter 7-8. The petitioners now appeal. By notice of review, Frawley also appeals, contending that the court erred in denying its motion for disbursements and attorney fees.

B.

[¶ 5.] The petitioners contend that the circuit court was incorrect in ruling that the only avenue for challenging the commission’s decision was an appeal under SDCL Chapter 7-8. Because they allege that the commission exceeded its jurisdiction, the petitioners believe certio-rari is proper. To address these arguments, we review the language of both SDCL 21-31-1 and SDCL 7-8-32. Construing a statute entails answering a question of law; thus, we review the circuit court’s statutory interpretation de novo. Lucero v. VanWie, 1999 SD 109, ¶ 6, 598 N.W.2d 893, 895 (citations omitted); Weger v. Pennington County, 534 N.W.2d 854, 856 (S.D.1995) (citations omitted).

[¶ 6.] Certiorari is an equitable remedy; it can only be granted when no legal remedy is available. Wold v. Lawrence County Com’n, 465 N.W.2d 622, 624 (S.D.1991)(citing Thies v. Renner, 78 S.D. 617, 622, 106 N.W.2d 253, 256 (I960)) (further citations omitted). See also SDCL 21-31-1 (certiorari may be granted when there is no other “plain, speedy, and adequate remedy.”) Here, the petitioners had an adequate remedy at law.

[¶ 7.] In SDCL 7-8-32, our Legislature unequivocally declared the proper method for challenging a decision of a county commission: “Appeal to the circuit court from decisions of the board of county commissioners, as provided in this chapter, is an exclusive remedy. Judicial review shall be allowed only as provided in §§ 7-8-27, 7-8-28, 7-8-29, 7-8-30 and 7-8-31.” SDCL 7-8-32 (emphasis added). This is the same interpretation we rendered in an earlier case. See Wold, 465 N.W.2d at 624 (declaratory judgment action not permitted in light of clear language of SDCL 7-8-31). In Wold, we also said that the word “exclusive” should be interpreted in its ordinary sense; thus SDCL 7-8-32 was the petitioners’ “sole” avenue for relief. See Wold, 465 N.W.2d at 624 (citations omitted). The purpose of this procedural restriction is to “strike a proper balance between the necessity of county government to operate in an efficient and orderly fashion and the right of its citizens to pursue injustices in the courts.... ” Weger, 534 N.W.2d at 858.

[¶ 8.] The petitioners seek to evade the Legislature’s unambiguous pronouncement and our accordant decisions by emphasizing the last sentence of SDCL 7-8-32. That sentence limits judicial review to the situations described in sections 7-8-27, 7-8-28, 7-8-29, 7-8-30, and 7-8-31. The petitioners contend that they cannot satisfy section 7-8-27 and as such are without an adequate remedy at law. SDCL 7-8-27 provides for an appeal to the circuit court by a “person aggrieved” by a commission ruling where the matter was “properly before” the board. See SDCL 7-8-27.

[¶ 9.] The petitioners assert that the Frawley rezoning requests were not properly before the board because the Lawrence County Commission “acted in excess of its jurisdiction.” We addressed a similar argument in Walker v. Board of County Comm’rs for Brule County, 337 N.W.2d 807 (S.D.1983). There, the petitioner alleged that the matter was not properly before the board because the commissioners exceeded their statutory authority. Therefore, the petitioner claimed he could not appeal under SDCL Chapter 7-8. Walker, 337 N.W.2d at 808. Like the petitioner in Walker, the petitioners here rely on Lewis v. Board of Com’rs, 44 S.D. 4, 182 N.W. 311 (1921), to support their argument. We emphasized in Walker, however, that the statute at issue in Lewis specifically limited the jurisdiction of the county commission. Walker, 337 N.W.2d at 808. On the other hand, the statute in Walker conferred general jurisdiction. Id. Like the statute in Walker, SDCL 11-2-36 grants county commissions wide discretion in the area of zoning. But see SL 2000, ch. 69, § 43 (repealing this provision).

[¶ 10.] In essence, the petitioners challenge the propriety of the commission’s rezoning approval. They argue that “the Lawrence County Commission failed to follow the Lawrence County Comprehensive Plan and the Zoning Laws.... ” This does not describe an act in excess of jurisdiction. A challenge to jurisdiction tests the power to make an inquiry, not the correctness of a decision of law or fact. See Becker v. Pfeifer, 1999 SD 17, ¶ 15, 588 N.W.2d 913, 918 (citations omitted).

[¶ 11.] Besides claiming that the action was not properly before the commission, the petitioners allege they are not persons aggrieved under SDCL 7-8-27. One is “a person aggrieved” under SDCL 7-8-27 when one “suffer[s] personal or individual grievances, as distinguished from those grievances suffered by taxpayers or the public generally.” Weger, 534 N.W.2d at 857 (citing Simpson v. Tobin, 367 N.W.2d 757, 760 (S.D.1985))(further citations omitted). In Weger, the plaintiff also claimed to be entitled to equitable relief as he was not a “person aggrieved.” Weger, 534 N.W.2d at 857. We refused to accept this argument because SDCL 7-8-27 is not the only avenue for appealing a county commission ruling: there are “two separate and distinct classes of appeal from decisions of the board of county commissioners .... ” Id. (citations omitted). One of these is by a person aggrieved under SDCL 7-8-27, and the other is through the state’s attorney under SDCL 7-8-28. The latter section provides:

Upon written demand of at least fifteen taxpayers of the county, the state’s attorney shall take an appeal from any action of such board if such action relates to the interests or affairs of the county at large or any portion thereof ... if he deems it to the interest of the county so to do....

SDCL 7-8-28. This statute allows for a general taxpayer challenge to county commission decisions without the added requirement that the party be “aggrieved.” As such, the petitioners could have proceeded under SDCL 7-8-28. In a taxpayer action “where there is a remedy by appeal, that remedy must be followed, rather than actions in equity or at common law.” Weger, 534 N.W.2d at 859 (internal quotes and citations omitted). The petition for writ of certiorari was properly dismissed.

C.

[¶ 12.] Frawley sought to recover its disbursements as the prevailing party in this action. The circuit court denied the request. We review a court’s decision on disbursements under an abuse of discretion standard. Michlitsch v. Meyer, 1999 SD 69, ¶ 10, 594 N.W.2d 731, 733 (citations omitted). We ask “whether a judicial mind, in view of the law and circumstances, could reasonably have reached the same conclusion.” Id. (citing Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 906 (S.D.1994))(further citations and internal quotes omitted). A court has the discretion to deny a prevailing party’s motion for disbursements under SDCL 15-17-37. Michlitsch, 1999 SD 69, ¶ 15, 594 N.W.2d at 734. The petitioners’ case was dismissed not on its merits, but for failure to pursue the proper procedure. We conclude that the circuit court did not abuse its discretion in denying Frawley disbursements.

[¶ 13.] In addition to disbursements, Frawley also requested an attorney fee award against the petitioners. Attorney fees may be granted only when such an award is specifically provided by statute. See SDCL 15-17-38. Frawley claims that attorney fees are sanctioned under SDCL 15-17-51:

If a civil action or special proceeding is dismissed and if the court determines that it was frivolous or brought for malicious purposes, the court shall order the party whose cause of action ... was. dismissed to pay part or all expenses incurred by the person defending the matter, including reasonable attorney’s fees.

In ruling on this motion, the circuit court entered no findings on whether the case was frivolously or maliciously brought. Without findings of fact and conclusions of law on this issue, meaningful appellate review is compromised. See Michlitsch, 1999 SD 69, ¶ 20, 594 N.W.2d at 735 (citations omitted); see also Lee v. Rapid City Area School District, 526 N.W.2d 738, 742 (S.D.1995)(motion for sanctions under SDCL 15-16-11 was not properly before this Court absent findings of fact and conclusions of law by the circuit court). Despite the absence of findings, however, an “appellate court may decide the appeal without further findings if it feels that it is in a position to do so.” Heikkila v. Carver, 416 N.W.2d 591, 592 (S.D.1987) (citations omitted).

[¶ 14.] Frawley seeks an award of attorney fees for the petitioners’ instigation of a “frivolous” suit under SDCL 15-17-51. A frivolous action exists when “the proponent can present no rational argument based on the evidence or law in support of the claim.... ” Michlitsch, 1999 SD 69, ¶ 19, 594 N.W.2d at 734 (quoting Hartman v. Wood, 436 N.W.2d 854, 857 (S.D.1989))(internal quotes omitted). To fall to the level of frivolousness there must be such a deficiency in fact or law that no reasonable person could expect a favorable judicial ruling. See Nygaard v. Continental Resources, Inc., 598 N.W.2d 851, 855 (N.D.1999)(interpreting a North Dakota statute) (citations omitted). Simply because a claim or defense is adjudged to be without merit does not mean that it is frivolous. See Estate of Snover v. Line, 4 Neb.App. 533, 546 N.W.2d 341, 349 (1996)(defining the term under Nebraska’s frivolous pleadings statute). Instead, frivolousness “connotes an improper motive or [a] legal position so wholly without merit as to be ridiculous.” Id. (citing Behrens v. American Stores Packing Co., 236 Neb. 279, 460 N.W.2d 671, 677 (1990))(internal quotes omitted).

[¶ 15.] Here, the petitioners chose a procedural route, which was indeed without merit. This erroneous choice, however, does not require us to label their case frivolous. “[T]he term frivolous should connote that the legal contention of the lawsuit is utterly implausible and lacks any arguable basis, or at least is characterized by abuse and egregiousness.” Lerch v. Boyer, 929 F.Supp. 319, 324 (N.D.Ind.1996)(emphasis added). As we stated in analyzing the certiorari issue, the petitioners had the right to appeal the commission’s ruling. They simply chose the wrong path. “Any doubt about whether or not a legal position is frivolous or taken in bad faith must be resolved in favor of the party whose legal position is in question.” See Estate of Snover, 546 N.W.2d at 349 ) (citations omitted). As we cannot characterize this case as “utterly implausible” or as one brought for an “improper motive,” we affirm the circuit court’s denial of attorney fees. See Lerch, 929 F.Supp. at 324; Estate of Snover, 546 N.W.2d at 349.

[¶ 16.] Affirmed.

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

[¶ 18.] AMUNDSON, Justice, deeming himself disqualified, did not participate.

      . SDCL 11-2-29 provides:
      Upon such filing or upon separate request by the board, the planning commission shall hold at least one public hearing. Notice of the time and place of the hearing shall be given once at least ten days in advance by publication in a legal newspaper of the county. At such public hearing, any person may appear and request or protest the requested change.

        See SL 1999, ch. 65, § 7. For subsequent changes to this section see SL 2000, ch. 69, § 40.

      . SDCL 11-2-28.1 requires an individual landowner who seeks a zoning change to “notify all other abutting landowners by registered or certified mail of the petitioned zoning change at least seven days prior to any public hearing held thereon by the board of county commissioners.” See SL 1999, ch. 65, § 6. For subsequent changes in the language of SDCL 11-2-28.1 see SL 2000, ch. 69, § 39.


author: MILLER, Chief Justice

text:
    2000 SD 145
    George L. GRAUEL, Claimant and Appellant, v. SOUTH DAKOTA SCHOOL OF MINES AND TECHNOLOGY, Employer and Appellee, and State of South Dakota, Insurer and Appellee.
    No. 21251.
    Supreme Court of South Dakota.
    Considered on Briefs Sept. 18, 2000.
    Decided Nov. 21, 2000.

      Tina Hogue of Finch Bettmann Maks, P.C., Rapid City, SD, Attorneys for claimant and appellant.
    Timothy M. Engel of May, Adam, Gerdes and Thompson, Pierre, SD, Attorneys for employer and appellee school.
   MILLER, Chief Justice

[¶ 1.] In this appeal, we hold that a workers’ compensation claimant failed to establish that his employment was a major contributing cause of his knee condition.

FACTS

[¶ 2.] George L. Grauel worked as a custodian for the South Dakota School of Mines & Technology (SDSM & T). He injured his left knee at work on August 8, 1996. Grauel testified that he felt his knee “pop” and experienced immediate pain as he walked to his next duty station after he finished sweeping a floor. He notified his supervisors of the incident and visited a doctor that day.

[¶ 8.] The initial doctor referred Grauel to Dr. Hollis L. Ahrlin, Jr., an orthopedic surgeon, for examination. Dr. Ahrlin examined him and found “some” swelling of the left knee. Although Grauel complained of tenderness and discomfort, Dr. Ahrlin noted that he had almost full range of motion, stable ligaments and the x-rays of his left knee showed no problems. Dr. Ahrlin stated in his deposition that he suspected a torn cartilage or other internal knee problem at the time. He prescribed leg exercises and took Grauel off work.

[¶ 4.] Grauel treated with Dr. Ahrlin several times over the following months and did not return to work during this time. Ultimately, Dr. Ahrlin decided Grauel needed arthroscopic surgery. On October 24, 1996, Dr. Ahrlin performed an arthroscopic general joint debridement consisting of removal of loose bodies within the knee, trimming of the medial femoral con-dyle and releasing a couple of synovial plica. During the surgery, Dr. Ahrlin noted degenerative changes under the kneecap and the medial femoral condyle.

[¶ 5.] On November 19, 1996, Grauel returned to his custodial duties for the first time since the August 8th incident. He continued working until early April 1997 and resigned on April 15, 1997. Grauel testified that he resigned because his custodial duties increased the risk of aggravating his knee injury and caused his knee discomfort.

[¶ 6.] Grauel requested workers’ compensation benefits from SDSM & T for the August 8th knee injury. SDSM & T denied his claim. On February 18, 1999, the Department of Labor held a hearing at which Grauel presented Dr. Ahrlin’s deposition testimony. SDSM & T presented deposition testimony of Dr. Wayne Anderson who had performed an independent medical evaluation on behalf of SDSM & T. The administrative law judge awarded benefits concluding that Grauel’s injury arose out of and in the course of his employment and that Grauel’s employment was a major contributing cause of injury to his knee. SDSM & T appealed to the circuit court, which reversed the Department of Labor’s award of benefits. Grauel appeals. We affirm.

[¶ 7.] Our standard of review in workers’ compensation cases is well settled. We make the same review of the agency’s decision as the circuit court, and the circuit court’s decision enjoys no presumption of correctness. Appeal of Templeton, 403 N.W.2d 398, 399 (S.D.1987) (citations omitted). We give great weight to the findings and inferences made by the agency on factual questions. Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citations omitted)). We apply the clearly erroneous standard to these findings of fact meaning we carefully review the entire record and will reverse only if we are “definitely and firmly convinced a mistake has been committed.... ” Sopko, 1998 SD 8, ¶ 6, 575 N.W.2d at 228 (citations omitted). Agency decisions concerning questions of law, however, are “fully reviewable.” Id. (citations omitted). In addition, “we review findings based on deposition testimony and documentary evidence under a de novo standard of review.” Wagaman, 1998 SD 27, ¶ 12, 576 N.W.2d at 240 (citation omitted).

DECISION

[¶ 8.] South Dakota Workers’ Compensation Law defines what constitutes a com-pensable injury. SDCL 62-1-1(7). The legislature defined “injury” or “personal injury” in the context of workers’ compensation law as only those injuries arising out of and in the course the worker’s employment and not including any diseases except a disease caused by the injury. Id.; Steinberg v. South Dakota Dep’t of Military & Veterans Affairs, 2000 SD 36, ¶ 9, 607 N.W.2d 596, 599. A 1995 amendment of the statute declared that injuries as defined therein will be compensated only if proven by medical evidence and only if one of three conditions is satisfied. SDCL 62-1-1(7). The worker must show: (1) the employment or employment related activities was a major contributing cause of the condition complained of; or (2) where an injury combines with a preexisting disease or condition, the employment or employment related injury is and remains a major contributing cause of the disability, impairment or need for treatment; or (3) where an injury combines with a preexisting work related compensa-ble injury, the subsequent employment or subsequent employment related activities contributed independently to the disability, impairment or need for treatment. Id.

[¶ 9.] As we noted in Steinberg, the legislature’s use of condition rather than injury in the amendment is significant. Steinberg, 2000 SD 36, ¶ 10, 607 N.W.2d at 600. Injury is the act or omission which causes the loss whereas condition is the loss produced by an injury, the result. Id. The addition of this new statutory language did not increase the causal connection a worker must show between his injury and his employment, but it did place a new burden' on the worker to show that his employment activities were a major contributing cause of his resulting condition. Id. ¶ 29. In short, in order to prevail, an employee seeking benefits under our workers’ compensation law must show both: (1) that the injury arose out of and in the course of employment and (2) that the employment or employment related activities were a major contributing cause of the condition of which the employee complained, or, in cases of a preexisting disease or condition, that the employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment. SDCL 62 — 1—1 (7)(a) — (b); Steinberg, 2000 SD 36, ¶ 29, 607 N.W.2d 596, 606.

[¶ 10.] 1. Grauel established that his injury arose out of his employment.

[¶ 11.] Grauel had the burden to prove by a preponderance of the evidence “all facts essential to compensation.” Westergren v. Baptist Hosp., 1996 SD 69, ¶ 10, 549 N.W.2d 390, 393 (citations omitted). Our law requires a claimant to establish that his injury arose out of his employment by showing a causal connection between his employment and the injury sustained. Brady Memorial Home v. Hantke, 1999 SD 77, ¶ 11, 597 N.W.2d 677, 680 (citing Maroney v. Aman, 1997 SD 73, ¶ 9, 565 N.W.2d 70, 73). Although a claimant must establish this causal connection, the “employment need not be the direct or proximate cause of injury....” Canal Ins. Co. v. Abraham, 1999 SD 90, ¶ 12, 598 N.W.2d 512, 516 (citing Bergren v. S.E. Gustafson Constr. Co., 75 S.D. 497, 68 N.W.2d 477 (1955); Anderson v. Hotel Cataract, 70 S.D. 376, 17 N.W.2d 913 (1945)).

[¶ 12.] This Court recently rejected the increased risk doctrine as a method of showing an injury arose out of employment. Steinberg, 2000 SD 36, ¶ 27, 607 N.W.2d at 605. It is sufficient if the employment contributes “to causing the injury,” Zacher v. Homestake Mining Co., 514 N.W.2d 394, 395 (S.D.1994), or the activity is one in which the employee might reasonably be expected to engage, Rohlck v. J & L Rainbow, Inc., 1996 SD 115, ¶ 19, 553 N.W.2d 521, 527, or the activity brings about the disability upon which compensation is based. Maroney, 1997 SD 73, ¶ 9, 565 N.W.2d at 73. A possibility, however, is insufficient; a claimant must show a probability that his employment caused the injury. Brady Memorial Home, 1999 SD 77, ¶ 11, 597 N.W.2d at 680 (citations omitted).

[¶ 13.] The parties agree Grauel was injured in the course of his employment. Much of the parties’ dispute focused on whether Grauel was “twisting” or turning when his knee popped or whether he was simply “walking.” We believe the dispute is of no consequence. The question is, did the employment contribute to causing the injury or is the activity one in which the employee might reasonably be expected to engage or did the employment activity bring about the disability on which the compensation is based?

[¶ 14.] Grauel testified, without contradiction, that he was working his regular shift and his knee popped while he was walking to his next duty. Fulfillment of Grauel’s custodial duties necessarily involved walking, twisting and turning. Additionally, SDSM & T’s independent medical examiner, Dr. Anderson, testified that any walking or moving contributes to “what happens orthopedieally.” An injury occurring during any of these employment activities would be an activity which contributed to Grauel’s knee injury or in which he would reasonably be expected to engage or which brought about the disability upon which his compensation was based. Accordingly, Grauel’s knee injury arose out of his employment. This conclusion is consistent with workers’ compensation purpose of replacing common law’s doubtful tort based recovery system with a system based on a right to relief iipon establishing the fact of employment, “automatic and certain, expeditious and independent of proof of fault.” Steinberg, 2000 SD 36, ¶ 15, 607 N.W.2d at 602 (quoting Keil v. Nelson, 355 N.W.2d 525, 530 (S.D.1984)) (alteration in original). We must always remember that workers’ compensation is the exclusive remedy for all on-the-job injuries, and workers’ compensation statutes should be applied without defeating the purpose of the overall statutory scheme. Id. ¶ 14. Unfortunately for Grauel, this issue is not decisive of his claim.

[¶ 15.] 2. Grauel failed to establish that his employment or employment related activity was a major contributing cause of his condition or his disability, impairment or need for treatment.

[¶ 16.] As discussed earlier, the South Dakota Legislature amended SDCL 62-1-1(7) adding the “major contributing cause” language in 1995. Steinberg, 2000 SD 36, ¶ 9, 607 N.W.2d at 599. The new language requires an employee to show his employment or employment related activity was a “major contributing cause” of the condition of which he complains or, where an employee has a preexisting disease or condition, the employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment. Id. ¶ 9. The statute now reads in pertinent part:

(7) “Injury” or “personal injury,” only injury arising out of and in the course of the employment, and does not include a disease in any form except as it results from the injury. An injury is compensa-ble only if it is established by medical evidence, subject to the following conditions:
(a) No injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of; or
(b) If the injury combines with a preexisting disease or condition to cause or prolong disability, impairment, or need for treatment, the condition complained of is compensable if the employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment.
(c) If the injury combines with a preexisting work related compensable injury, disability, or impairment, the subsequent injury is compensable if the subsequent employment or subsequent em•ployment related activities contributed independently to the disability, impairment, or need for treatment.

SDCL 62-1-1(7) (emphasis added).

[¶ 17.] In Steinberg, we corrected the circuit court’s misinterpretation of the 1995 amendment. The circuit court in Steinberg interpreted the additional language to mean the legislature had raised the standard by which an employee must show a causal connection. Steinberg, 2000 SD 36, If 8, 607 N.W.2d at 599. We did not agree, holding that the legislature “did not intend to increase the causal connection that is required to prove an injury arose out of the employment, but rather intended to raise the degree of proof required to show the condition complained of by the employee.” Id. ¶ 18 (emphasis added).

[¶ 18.] To determine if Grauel established by a preponderance of medical evidence that his employment was a major contributing cause of his knee condition or his disability, impairment, or need for treatment, we examine the medical testimony. In this case, that consists solely of the deposition testimony of Dr. Ahrlin and Dr. Anderson, which we review de novo.

[¶ 19.] Dr. Ahrlin first saw Grauel on August 9, 1996, one day after the injury, and remained his treating physician throughout the course of the injury and his resulting knee condition. During his deposition, Dr. Ahrlin continually stated that Grauel’s work-related incident was not just the major contributing cause of Grauel’s knee problem but was the “only” contributing factor to the knee problem. The difficulty with Dr. Ahrlin’s statement is its basis. In reviewing Dr. Ahrlin’s deposition, it is clear he assumed that any injury occurring at work is work-related: “I guess whatever his injury or whatever his activity was, whether it was a major or minor, if — if he was at work and he developed a problem, I guess that it would have to be considered a work-related problem.” This assumption is incorrect. The mere occurrence of an injury at work does not mean it is ipso facto work-related. As discussed above, the employee must establish by a preponderance of the evidence that his injury arose out of and in the course of his employment and that his employment was a major contributing cause of his condition or his disability, impairment, or need for treatment. Showing the injury occurred at work is just one piece of evidence an employee can utilize in proving his case, but he must prove more than that fact alone to show the required causal connection and that his employment was a major contributing cause of his condition or his disability, impairment, or need for treatment.

[¶ 20.] Additionally, Dr. Ahrlin’s testimony is inconclusive. First, he firmly stated his opinion that Grauel’s employment activities were a major contributing cause of Grauel’s knee condition only to later abandon that opinion by giving no opinion as to whether Grauel’s knee problems developed over time or instantaneously the day of the work injury. In order to express his opinion as to major contributing cause, logic would expect Dr. Ahrlin to have an opinion as to whether the injury developed over time or occurred instantaneously the day of the work injury. Dr. Ahrlin’s failure to state an opinion on this topic places his ultimate opinion concerning major contributing cause in question. Combining this information with the earlier discussion of Dr. Ahrlin’s faulty assumption about work-related injuries leads this Court to find Dr. Ahrlin’s testimony as to major contributing cause is inconclusive and therefore incapable of sustaining Grauel’s burden of proof on that issue in this case.

[¶ 21.] Although unnecessary given our discussion of Dr. Ahrlin’s deposition, we briefly discuss Dr. Anderson’s deposition. He performed an independent medical evaluation of Grauel on behalf of SDSM & T on June 8, 1998, almost two years after the injury. He concluded that Grauel’s employment was not a major contributing cause of his knee condition. Dr. Anderson opined that Grauel suffered from degenerative arthritis of the knee and that this was the major contributing cause of his knee condition. Dr. Anderson reasoned that the presence of loose bodies in the knee combined with minor swelling and full range of motion at the time of the accident indicated that the preexisting condition of degenerative arthritis rather than employment activities was the major contributing cause of Grauel’s knee condition. Although this contradicts the treating physician, Dr. Ahrlin, Dr. Anderson’s opinion is logical and supported in the record.

[¶ 22.] The Department of Labor and Grauel’s counsel stress the fact that Dr. Anderson did not review all of Grauel’s medical records. However, as this Court views the record, this point carries little weight. First, Dr. Anderson was missing only two records' — a visit to Dr. Ahrlin on October 21, 1996 and an impairment rating visit to Dr. Ahrlin on May 29, 1998. Second, SDSM & T’s counsel presented Dr. Anderson with each of these records during his deposition, and he stated that the information contained in those two records did not change his opinion.

[¶-23.] Grauel’s counsel contends that Dr. Ahrlin’s testimony should be accepted as satisfying Grauel’s burden of proof, but as discussed above, we disagree. Dr. Ahr-lin’s testimony is inconclusive and simply does not sustain Grauel’s burden to prove by a preponderance of the evidence that his employment was a major contributing cause of his knee condition. Additionally, when reviewing the two depositions together, Dr. Anderson’s testimony is based on logical reasoning supported by evidence in the record. Although we did find Grau-el’s injury arose out of his employment, he needed to also establish that his employment was a major contributing cause of his knee condition. This he failed to do.

[¶ 24.] Affirmed.

[¶ 25.] SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.