author: GILBERTSON, Chief Justice.

text:
    2002 SD 66
    STATE of South Dakota, Plaintiff and Appellee, v. Dawn FRAZIER, Defendant and Appellant.
    No. 22024.
    Supreme Court of South Dakota.
    Considered on Briefs April 22, 2002.
    Decided June 5, 2002.

      Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Bruce A. Hubbard of Hansen & Hubbard, Sturgis, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Dawn Frazier (Frazier) was convicted by a jury for the kidnapping and felony murder of Morning Star Standing Bear (Standing Bear). She was sentenced to life imprisonment. Frazier now appeals the conviction and the sentence. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On June 15, 1999, Frazier, Chaske White (White), Robert Horse, and Jerry Horse were partying at a friend’s home in Rapid City. During the course of the evening, they left the house and went to a bar. While at the bar, Jerry Horse picked up Standing Bear, a young woman with whom he was acquainted. When the bar closed, Standing Bear accompanied the group back to the friend’s home to drink more beer. Standing Bear was visibly intoxicated at this point and passed out on the couch for a short time. Eventually, Frazier, White, Robert Horse, Jerry Horse and Standing Bear all left the house in Frazier’s vehicle.

[¶ 3.] After dropping. Jerry Horse off at his home, the remaining four continued to drive around the area of north Rapid City while White and Robert Horse joked about killing Standing Bear. By this time, Standing Bear was nearly unconscious. Ultimately, the group stopped on a gravel road outside Rapid City where Standing Bear was forcibly removed from the car by White and Robert Horse. She was kicked, beaten and stabbed numerous times. Standing Bear died as a result of injuries inflicted, in part, by a car jack' and a broken beer bottle. Her naked body was dragged into a ditch, where it was discovered the next morning.

[¶ 4.] On the evening of June 17, 1999, Frazier was interviewed five times. During the final interview, Frazier gave a detailed description of what had happened during the early morning hours of June 17, 1999. She claimed that White directed her where to drive. Frazier said she repeatedly requested to go home, but White refused. She believed Robert Horse, and possibly White, were “just going to” rape Standing Bear. White instructed Frazier to stop the car on Meade County Road 11L where Standing Bear was killed. Frazier claimed that White ordered her to stay in the car and not to watch what White and Robert Horse were doing. She stated that while looking in the rear view mirror, she witnessed White and Robert Horse beating Standing Bear. Frazier got out of the car on a number of occasions, once to open the trunk of her car, several times to urge White and Robert Horse to “hurry up,” and each time returning to the car upon threats from White. Every time she left the car, she witnessed further beating, but according to her statement, she did not actually participate. Finally, after Standing Bear’s lifeless body was dragged across the road into a ditch, Frazier drove White and Robert Horse back into Rapid City.

[¶ 5.] At trial, Frazier claimed she was a victim of Battered Woman’s Syndrome and she obeyed White only out of fear for her safety. While their relationship had started well, White began drinking and hitting her with his fist. Frazier testified that White had beat, raped, and sodomized her to the point where, on at least one occasion, she had to go to the emergency room. White was charged with simple assault as a result of that beating, but was released when Frazier recanted. Two of Frazier’s co-workers and Frazier’s cousin all testified to White’s abuse of Frazier and her fear of him. White’s ex-girlfriend testified that she had experienced the same treatment from White when she was with him. Carol Maicki (Maicki), a consultant in the field of Battered Woman’s Syndrome, testified to its symptoms, many of which matched Frasier’s behavior. Maicki was not, however, familiar with the specific facts of this case.

[¶ 6.] On June 14, 2000, the jury convicted Frazier of both kidnapping and felony murder. The circuit court sentenced her to life imprisonment on both counts with sentences to run concurrently. Frazier appealed the conviction and sentence. On March 29, 2000, this Court reversed the conviction on the basis that the trial court had erroneously admitted the unreliable statements of Jerry Horse, a fugitive at the time of trial, in violation of the confrontation clause. See Frazier I, 2001 SD 19 at ¶ 33, 622 N.W.2d at 259.

[¶ 7.] Frazier was retried June 4 through June 15, 2001, and was found guilty of the kidnapping and felony murder of Standing Bear. She was again sentenced to life imprisonment. Frazier now appeals both the conviction and the sentence, raising the following issues:

1. Whether the evidence was sufficient to sustain a jury verdict of guilty on the kidnapping and felony murder charges.
2. Whether South Dakota’s felony murder statute is unconstitutional.

STANDARD OF REVIEW

[¶ 8.] We review a motion for judgment of acquittal by deciding “whether [the] State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged.” State v. Holzer, 2000 SD 75, ¶ 10, 611 N.W.2d 647, 650.

In determining the sufficiency of the evidence on review, the question presented is whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In this review, we must accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict. In determining the sufficiency of the evidence, this Court will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.

State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905 (quoting State v. Knecht, 1997 SD 53, ¶ 22, 563 N.W.2d 413, 421).

[¶ 9.] We review constitutional claims de novo. City of Pierre v. Blackwell, 2001 SD 127, ¶ 7, 635 N.W.2d 581, 584 (citation omitted).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the evidence was sufficient to sustain a jury verdict of guilty on the kidnapping and felony murder charges.

[¶ 11.] Frazier contends that the evidence in this case was insufficient to sustain the jury’s verdict. Essentially, Frazier argues that the evidence relating to her alleged fear of White and her suffering from Battered Woman’s Syndrome, outweighs the evidence that she not only facilitated the crime by driving Standing Bear to her death, but also that she may have actively participated in the crime. We disagree.

[¶ 12.] Frazier was convicted of kidnapping in violation of SDCL 22-19-1, which provides, in relevant part:

Any person who shall seize, confine, inveigle, decoy, abduct or carry away any person and hold or detain such person, except in the case of an unmarried minor by a parent thereof, for any of the following reasons: ... (2) To facilitate the commission of any felony or flight thereafter; (3) To inflict bodily injury on or to terrorize the victim or another; ... is guilty of kidnapping. Kidnapping is a Class 1 felony, except if the person has inflicted a gross permanent physical injury on the victim, in which case it is a Class A felony.,

In addition, Frazier was convicted of felony murder pursuant to SDCL 22-16-4, which provides, “[hjomieide is murder in the first degree when ... committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, [or] kidnapping .... ” Therefore, we first determine whether the evidence supports the kidnapping conviction.

[¶ 13.] Frazier drove her car to the secluded area where Standing Bear was killed. She likely overheard White’s and Robert Horse’s jokes about killing Standing Bear. Frazier had ample opportunity to stop driving or turn the car around. In her statement to law enforcement and in her brief, Frazier concedes she “suspected that Standing Bear. was going to be raped.” Evidence suggested that the beating may have lasted more than twenty minutes. Yet, Frazier did not sound the horn to attract help from the nearby farm house or try .to leave the scene. In fact, Frazier retrieved items from the trunk of her car for White and Robert Horse to use in the beating. She may even have actively participated by throwing the tire jack at Standing Bear’s body and by kicking her.

[¶ 14.] After Standing Bear’s body was dragged into the ditch, Frazier helped clean up the crime scene. She offered a bag to put the bloody clothes in, refused to put Standing Bear’s body in the trunk of her car, and admonished White and Robert Horse not to touch anything with their bloody hands. Then she drove White and Robert Horse back to Rapid City, where she fell asleep on a couch with White. Later, she drove Robert Horse to his house to change clothes. When the group met Jerry Horse for breakfast, White told Jerry Horse “we killed Morning Star.” Jerry Horse asked Frazier whether it was true and Frazier “just shook her head yes.” Frazier went to 'work the next two days and was safely away from White, but she did not report the crime. The jury could reasonably have believed that these were not the actions of someone who only “obeyed” out of fear. Frazier has failed to show, in light of all the evidence, that no reasonable jury could have found her guilty of kidnapping.

[¶ 15.] It is undisputed that Standing Bear died as a result of the actions of Frazier, White and Robert Horse. We have concluded the evidence is sufficient to affirm the trial court’s ruling as to the charge of kidnapping. Accordingly, we must also conclude the evidence is sufficient to support the trial court’s ruling on the felony murder charge, because Standing Bear died during the perpetration of a kidnapping. The evidence, as well as the inferences fairly drawn therefrom, adequately support the trial court’s denial of Frazier’s motion for acquittal on both charges.

[¶ 16.] 2. Whether South Dakota’s felony murder statute is unconstitutional.

[¶ 17.] Frazier argues that SDCL 22-16-4 is unconstitutional for two reasons. First, she claims that because she merely drove the car that carried away Standing Bear and “had no specific intent to kill anyone,” the mandatory sentence of life imprisonment is grossly disproportionate to her role in the crime. Second, Frazier contends that South Dakota’s felony murder statute impermissibly allows a conviction for first degree murder without the requisite premeditation. As a result, Frazier asserts that South Dakota’s felony murder statute violates the Eighth Amendment prohibition against cruel and unusual punishment. We disagree.

[¶ 18.] SDCL 22-16-4 provides, in pertinent part:

Homicide is murder in the first degree ... when committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive. Homicide is also murder in the first degree if committed by a person who perpetrated, or who attempted to perpetrate, any arson, rape, robbery, burglary, kidnapping ... and who subsequently effects the death of any victim of such crime to prevent detection or prosecution of the crime.

First degree murder is a class A felony, punishable only by life imprisonment or the death penalty. SDCL 22-16-12; SDCL 22-6-1(1). Thus, because the State did not seek the death penalty in this case, a life sentence was mandatory. But such mandatory sentences, regardless of any mitigating evidence, are not necessarily unconstitutional. See Harmelin v. Michigan, 501 U.S. 957, 994-99, 1006-08, 111 S.Ct. 2680, 2701-08, 2707-09, 115 L.Ed.2d 836, 864-65, 872-74 (1991).

[¶ 19.] The Eighth Amendment states, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” This guarantee protects against unnecessarily painful and barbarous punishments, as well as those that are grossly disproportionate to the crime. See Harmelin, 501 U.S. at 996-98, 111 S.Ct. at 2702-03, 115 L.Ed.2d at 866-67 (Kennedy, J., concurring); Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, 642-43, (1958). A proportionality challenge, however, should rarely be successful in cases where the death penalty is not at issue. See Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1188, 68 L.Ed.2d 382, 390 (1980).

[¶ 20.] Proportionality review involves five basic principles. First, “the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts.” Harmelin, 501 U.S. at 998, 111 S.Ct. at 2703, 115 L.Ed.2d at 867 (Kennedy, J., concurring). Second, “the Eighth Amendment does not mandate adoption of any one penological theory.” Id. at 999, 111 S.Ct. at 2704, 115 L.Ed.2d at 867. Third, it is the unique and independent role of the state to define societal norms through legislative enactments in criminal law. The state’s power “may yield different, yet rational, conclusions regarding the appropriate length of prison terms for particular crimes.” Id. at 1000, 111 S.Ct. at 2704, 115 L.Ed.2d at 868. Fourth, proportionality review is driven by objective factors. Id. Finally, “The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.” Id. at 1001, 111 S.Ct. at 2705, 115 L.Ed.2d at 869 (emphasis added). Thus, as a reviewing court, we must give substantial deference to the Legislature’s choice in fixing criminal penalties and we must determine only whether such a choice is grossly disproportionate to the crime involved. See State v. Milk, 2000 SD 28, ¶ 14, 607 N.W.2d 14, 18 (applying Harmelin principles to uphold life sentence for defendant convicted of first degree manslaughter); State v. Bonner, 1998 SD 30, ¶ 14, 577 N.W.2d 575, 579 (noting reviewing courts should give substantial deference to legislatures in determining types and limits of punishments). See also Phillips v. State, 807 So.2d 713, 717 (Fla.App.2002) (applying five principles of proportionality review and holding sentence of life imprisonment for 14-year-old boy who killed 8-year-old girl not unconstitutional).

[¶ 21.] Courts have generally upheld the constitutionality of felony murder statutes. See, e.g., Simpson v. Lockhart, 942 F.2d 493 (8thCir.1991) (upholding Arkansas felony murder statute); State v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001) (upholding death penalty in robbery-murder case even though defendant did not intend to kill anyone); People v. Musselwhite, 17 Cal.4th 1216, 74 Cal.Rptr.2d 212, 954 P.2d 475 (1998) (holding no Eighth Amendment requirement that felony murder statute apply only to premeditated and deliberate murders); People v. Cisneros, 855 P.2d 822 (Colo.1993) (upholding automatic sentence of life imprisonment for felony murder); State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991) (denying claim that felony murder statute allows cruel and unusual punishment without requisite intent to kill); State v. Gilmer, 96 Wash.App. 875, 981 P.2d 902 (1999) (holding felony murder statute may be harsh but not unconstitutional). “Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.” Harmelin, 501 U.S. at 994-95, 111 S.Ct. at 2701, 115 L.Ed.2d at 864.

[¶ 22.] Frazier’s reliance on the United States Supreme Court decision of Solem v. Helm is misguided. 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In that ease, the defendant was sentenced to life imprisonment for passing a $100 “no account” check, his seventh non-violent felony, under the South Dakota recidivist statute. Id. at 281-82, 103 S.Ct. at 3005, 77 L.Ed.2d at 643-44. The Supreme Court made a point of recognizing that ordinarily, the maximum sentence for this crime would have been five years. It also noted that none of the defendant’s previous felonies had been violent crimes and none had been crimes against a person. Id. at 280, 103 S.Ct. at 3005, 77 L.Ed.2d at 643. The Supreme Court held that the punishment in that case was grossly disproportionate to the defendant’s crime.

[¶ 23.] Instead, we find the United States Supreme Court case of Tison v. Arizona to be more directly controlling. 481 U.S. 137, 107 S.Ct. 1676, 96 L.Ed.2d 127 (1987). There, the Supreme Court examined the Arizona felony murder statute in the context of four murders, which occurred during a prison escape, armed robbery, theft of an automobile and kidnapping. The two individuals appealing their case participated in the underlying crimes, made the murders possible by helping their father break out of prison, and were present when the victims were shot. Id. at 151-52, 107 S.Ct. at 1684-85, 95 L.Ed.2d at 140-41. They did not, however, actually kill or intend to kill the victims. Id. The Supreme Court noted:

Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each petitioner was actively involved in every element of the kidnap-ing-robbery [sic] and was physically present during the entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight. The [defendants’] high level of participation in these crimes further implicates them in the resulting deaths.

Id. at 158, 107 S.Ct. at 1688, 95 L.Ed.2d at 144. The Supreme Court noted there is, among the majority of jurisdictions, an “apparent consensus that substantial participation in a violent felony under circumstances likely to result in the loss of innocent human life may justify the death penalty even absent an intent to kill.” Id. at 154-55, 107 S.Ct. at 1686-87, 95 L.Ed.2d at 142 (citations omitted). The Supreme Court went on to hold that specific intent was not required in order to satisfy Eighth Amendment analysis because “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Id. at 158, 107 S.Ct. at 1688, 95 L.Ed.2d at 145 (citing Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)).

[¶ 24.] While Frazier would like to characterize her role in this crime as “merely driving the car,” the evidence suggests otherwise. Unlike Solem, this case involves two violent crimes committed against another person: kidnapping and murder. As in Tison, Frazier’s actions made the murder possible. She was not “merely” a driver for the other felons; she aided them in concealing the crime and may even have actively participated in its perpetration. Whether Frazier did not intend for Standing Bear to die is not determinative. As noted by Justice Kennedy in Harmelin, “the crime of felony murder without specific intent to Mil ... [is] a crime for which ‘no sentence of imprisonment would be disproportionate.’ ” 501 U.S. at 1004, 111 S.Ct. at 2706, 115 L.Ed.2d at 871 (Kennedy, J., concurring) (quoting Solem, 463 U.S. at 290, n.15, 103 S.Ct. at 3009, 77 L.Ed.2d at 649) (additional citation omitted). Thus, we conclude Frazier’s sentence is neither grossly disproportionate to her crime, nor violative of the Eighth Amendment prohibition against cruel and unusual punishment.

[¶ 25.] We affirm.

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

      . For a more detailed description of the facts underlying this case, see State v. Frazier (Frazier I), 2001 SD 19, 622 N.W.2d 246.

      . Standing Bear's blood alcohol content at the time of her death was 0.342 grams per deciliter.

      . Only the third and fifth interviews were tape-recorded.

      . Before the final interview of Frazier, she told investigators that she was afraid of White and his possible retaliation against her or her family. To ease Frazier's fears and support the assertion that White would be incarcerated for his participation, it was arranged for White to be escorted in handcuffs past the open door of the room where Frazier was being questioned.

      . White pled guilty to first degree murder and kidnapping. In exchange, the State agreed not to seek the death penalty. He was sentenced to life imprisonment on each charge with the sentences to run consecutively. Robert Horse was convicted of first degree murder and kidnapping by a jury and sentenced to life imprisonment on each conviction. His conviction was reversed by this Court in State v. Horse, 2002 SD 47, 644 N.W.2d 211 on grounds that waiver of his Fifth Amendment rights had not been freely and voluntarily given.

      . When questioned by police, White claimed Frazier had actively participated in the murder. White stated: (1) "... and Dawn fucking threw a kick in too;” (2) "... and like, Dawn was hitting her with that thing (the jack) ...;” (3) "Dawn went and got the lug wrench out;” and (4) "Dawn pulled [a malt liquor bottle] out from somewhere. She goes, 'use this,' then she broke it and then she handed it to me.” White also stated that he cut his hand on the bottle when Frazier handed it to him and that Frazier helped drag Standing Bear’s body across the road. At trial, White claimed his statements regarding Frazier’s active involvement were all lies. However, Robert Horse, in his statement to police, told the same story of Frazier's involvement. In either case, the jury could reasonably have believed that Frazier did more than merely sit in the car as White had supposedly ordered her to do.

      . The Supreme Court examined the felony murder rule of various jurisdictions and concluded, contrary to Frazier's assertion, that the majority of them actually authorize the death penalty, even without a finding of intent to kill. "This substantial and recent legislative authorization of the death penalty for the crime of felony murder regardless of the absence of a finding of an intent to kill powerfully suggests that our society does not reject the death penalty as grossly excessive under these circumstances." Tison, 481 U.S. at 154, 107 S.Ct. at 1686, 95 L.Ed.2d at 142. If the death penalty in such cases is not grossly disproportionate, then certainly a sentence of life imprisonment must pass proportionality analysis, as well.


source: Caselaw Access Project

license: Public Domain

text:
    2002 SD 65
    Jeanne K. FELDHAUS, Plaintiff and Appellant, v. Ronald SCHREINER, Defendant and Appellee.
    No. 22003.
    Supreme Court of South Dakota.
    Considered on Briefs April 22, 2002.
    Decided June 5, 2002.

      Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, for plaintiff and appellant.
    Travis Jones of Riter, Mayer, Hofer, Wattier & Brown, Pierre, for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Jeanne Feldhaus (Feldhaus) sued Ronald Schreiner (Schreiner) for divorce. After a bench trial on March 15, 2001, the court awarded 46 percent of the marital assets to Feldhaus and 54 percent to Schreiner. Feldhaus appeals the trial court’s division of property. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The parties were married on December 27, 1980. At that time, Feldhaus was thirty-two years old and Schreiner was forty-one years old. This was the second marriage for both of them. The two remained married for approximately twenty years and had no children from the marriage.

[¶ 3.] Feldhaus and Schreiner both worked outside the home during the course of the marriage. They pooled their separate incomes and paid expenses together. Schreiner had worked for the State of South Dakota for eleven years before the marriage, and the bulk of his employment after the marriage was with the State as well. Schreiner retired in 1995 and now draws $41,000 per year in benefits. Feldhaus continues to work full time with the federal government and earns $39,000 per year. The couple owed $27,410 in taxes resulting from early withdrawal of Schreiner’s IRA, which was used to pay down their mortgage.

[¶ 4.] During the course of their employment, both parties contributed to retirement plans. Schreiner participated in the South Dakota Retirement System (SDRS) and his policy is presently valued at $550,320. Feldhaus participated in a Thrift Saving Plan (TSP) and the Federal Employee Retirement System (FERS). These two policies have a present value of $119,343 and $113,000, respectively.

[¶ 5.] Since January 1995, Schreiner has received nearly $200,000 in retirement payments. Unlike Feldhaus’ policies, Schreiner’s has no “cash out” value because he has already received more than the $70,000 he has paid in. While an economist testified that the “current” value of the policy is $550,320, the current value does not equate to cash value. The value asserted at trial assumes that Schreiner will live to the age of 78 and continue drawing payments. Additionally, 11 of Schreiner’s 31 years of service were accumulated prior to the marriage, so the trial court apportioned the value of the policy attributable to the marriage at $330,192.

[¶ 6.] Schreiner also testified that he suffers from chronic heart disease. He has been hospitalized five times in South Dakota and four times while working outside the United States. Schreiner takes four different kinds of medication to treat his heart condition and he will require corrective surgery in the near future. No medical evidence, however, was presented to indicate that this condition would significantly shorten his life expectancy.

[¶ 7.] At the conclusion of the trial, the court directed the parties to submit their closing arguments in writing. On May 1, the court delivered its proposed findings of fact and conclusions of law, which essentially divided the property equally. When the court instructed both counsel to submit their own proposed findings and conclusions, as well as their objections to those proposed by the court, Feldhaus mistakenly copied the text proposed by Schreiner and submitted it to the court as her own.

[¶ 8.] The court, thinking the parties were in agreement as to the 46/54 division' of property, amended its findings and conclusions accordingly. The court awarded Feldhaus $840,699 in property and assets, and Schreiner $407,804. When Feldhaus discovered her mistake and brought it to the court’s attention, she was allowed to resubmit her proposed findings of fact and conclusions of law. But the court considered “the respective age and health of the parties, the parties’ contribution towards the accumulation of assets, the present versus cash value of the property, and the parties’ competency to earn á living,” and concluded that the most equitable division was still the 46/54 split. Feldhaus now appeals the court’s property division:

Whether the trial court abused its discretion in awarding only 46 percent of the marital property to Feldhaus, and 54 percent to Schreiner.

STANDARD OF REVIEW

[¶ 9.] We review the trial court’s division of property under the abuse of discretion standard. Albrecht v. Albrecht, 2000 SD 54, ¶ 10, 609 N.W.2d 765, 768 (citing Priebe v. Priebe, 1996 SD 136, ¶ 9, 556 N.W.2d 78, 80). Thus, for a reversal, Feldhaus must show that “no ‘judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.’ ” Nickles v. Schild, 2000 SD 131, ¶ 7, 617 N.W.2d 659, 661 (quoting State v. Barber, 1996 SD 96, ¶ 14, 552 N.W.2d 817, 820). See also Billion v. Billion, 1996 SD 101, ¶ 14, 553 N.W.2d 226, 230 (stating we do not determine whether we would have made the same ruling, but whether any judicial mind could reasonably have done so).

[¶ 10.] We review the circuit court’s findings of fact under the clearly erroneous standard. New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citations omitted). “Clear error is shown only when, after review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” Id. (quoting Cleveland v. Tinaglia, 1998 SD 91, ¶ 16, 582 N.W.2d 720, 724). “The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994) (citing Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D.1980)).

ANALYSIS AND DECISION

[¶ 11.] Whether the trial court abused its discretion in awarding 46 percent of the marital property to Feldhaus, and 54 percent to Schreiner.

[¶ 12.] Feldhaus contends that the trial court abused its discretion in two ways. First, she argues that the trial court abandoned its decision-making responsibility by simply adopting, verbatim, those findings and conclusions submitted by Schreiner. Second, Feldhaus maintains that the only equitable distribution of marital property in this case would be to divide the property equally. We disagree.

[¶ 13.] Feldhaus claims SDCL 15-6 — 52(a) only allows the court to direct counsel to prepare and submit proposed findings of fact and conclusions of law “after it has announced its decision,” and that this statute “cannot allow the court to abdicate its responsibilities.” SDCL 15-6-52(a) provides, in pertinent part:

In all actions tried upon the facts without a jury ... the court shall, unless waived as provided in § 15-6-52(b), find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to § 15-6-58.
... Findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
A copy of the proposed findings shall be served upon the attorneys of record to the action.... The court may direct counsel for the prevailing party to prepare findings; and counsel shall, within ten days after announcement of decision, unless otherwise ordered, prepare, serve, and submit to the court with copies to opposing counsel, proposed written findings of fact and conclusions of law together with the proposed judgment or decree.
The court may not sign any findings therein prior to the expiration of five days after service of the proposed findings during which time the parties may in writing submit to the court and serve on their adversaries their objections or additional proposals. Thereafter the court shall make or enter such findings and conclusions as may be proper.
Any action or decision of the court in making or modifying findings of fact or conclusions of law shall be deemed excepted to, but the failure of the court to make a finding or conclusion on a material issue is not to be deemed excepted to unless such finding or conclusion has been proposed to or requested from the court. * * *

(emphasis added). Feldhaus overlooks the fact that this provision is designed to give each of the parties one last opportunity to convince the court of its position. Irrevocably binding the court to any position it considers during trial would defeat this purpose. Feldhaus’ argument would render SDCL 15-6-52(a) meaningless.

[¶ 14.] In addition, many courts have recognized this common practice. See, e.g., Chamblee v. Chamblee, 637 So.2d 850 (Miss.1994) (recognizing Mississippi Supreme Court has consistently held that a trial court can adopt verbatim, in whole or part, the findings of fact and conclusions of law submitted by a party); Smith v. United Parcel Svc., 254 Mont. 71, 835 P.2d 717 (1992) (holding no abuse of discretion where court adopted party’s findings and conclusions “almost verbatim”); Leftwich v. Leftwich, 442 A.2d 139 (D.C.1982) (rejecting challenge to court’s verbatim adoption of party’s findings and conclusions but adopting a stricter standard of review); Matter of Hamilton, 97 N.M. 111, 637 P.2d 542 (1981) (holding trial court did not abdicate its responsibility by adopting, almost verbatim, findings of fact and conclusions of law submitted by party); Dean v. Dean, 439 N.E.2d 1378 (Ind.Ct.App.1982) (holding trial court’s verbatim adoption of one party’s proposed findings is not error); In re Marriage of Siglin, 555 N.W.2d 846 (Iowa Ct.App.1996) (holding fact that court adopted party’s proposed findings and conclusions verbatim did not mean “decision was not product of independent judicial judgment.”); Phillips v. Drake, 215 Ga. App. 210, 449 S.E.2d 879 (1994) (holding no error results from verbatim adoption of party’s proposed findings and conclusions so long as order is supported by evidence). Without becoming a judicial rubber stamp, it is well within the court’s discretion to adopt those findings of fact and conclusions of law which it deems most appropriate, regardless of their source.

[¶ 15.] Feldhaus also claims, because the parties shared all finances equally over the course of their 20-year marriage, all marital assets, including the parties’ respective retirement policies, should be deemed jointly owned and divided equally. We recognize that South Dakota law allows for the distribution of property without regard to title. Specifically, SDCL 25^4-44 provides:

When divorce is granted, the courts may make an equitable division of the property belonging to either or both, wheth-ér the title to such property is in the name of the husband or the wife. In making such division of the property, the court shall have regard for equity and the circumstances of the parties.

The trial court is not, however, bound to any formulaic computation. Indeed, the statute mandates consideration of equity and the positions of the parties, which frequently require the opposite. We have often noted that “in making an equitable division of property, the trial court is not bound by any mathematical formula, but is to make an award on the basis of the material factors in the case.... ” Christians v. Christians, 2001 SD 142, ¶ 12, 637 N.W.2d 377, 380 (quoting Garnos v. Garnos, 376 N.W.2d 571, 572-73 (S.D.1985)).

[¶ 16.] A review of the record reveals that a judicial mind could legitimately have reached the same decision as was reached by the trial court in this case. The court considered all seven of the relevant factors for property division and concluded there were certain inequities that justified the uneven distribution. See Pellegrin v. Pellegrin, 1998 SD 19, ¶ 21, 574 N.W.2d 644, 648. Feldhaus is younger than Schreiner, still fully employed, and has the potential to continue increasing her earnings. Schreiner contributed “twice as much as Feldhaus, by way of earnings, towards the accumulation of assets during the course of the marriage.” Felhaus is in good health, while Schreiner has a heart condition that could cause significant problems down the road, one of which is surgery. But most importantly, the court was “mindful of the fact that nearly three quarters of [Schreiner’s] marital estate is comprised of his retirement plan that has no cash value.” (emphasis added).

[¶ 17.] Feldhaus spends much of her brief arguing that the court impermis-sibly disregarded the expert testimony, which established the policy’s current value at $550,320 by means of statistical prediction, when it stated that the value of the policy was speculative. See Kennedy v. Hubbard Milling Co., 465 N.W.2d 792, 795 (S.D.1991) (stating trial court “should not arbitrarily disregard uncontradicted or un-discredited expert testimony.”). This is not, however, a correct characterization of the trial court’s actions or statement. The court correctly adopted the current value (not cash value), as supported by the expert testimony. But it also recognized “the speculative nature of the value,” in that it is wholly dependent upon how long Schreiner lives, (emphasis added). This is not to say that Schreiner has supported, with medical or scientific evidence, the assertion that his life expectancy will be shorter than the projected 78 years. It is merely a common sense recognition that Schreiner’s retirement policy is not liquid. See Baltzer v. Baltzer, 422 N.W.2d 584, 587 (S.D.1988) (upholding trial court’s consideration of asset liquidity when making equitable distribution). There is no $550,000 account that Schreiner can access at any time. He can only reap the full amount of the investment by living a certain number of years.

[¶ 18.] By contrast, Feldhaus’ policies do have a “cash” value, albeit less than current value, which may be accessed at any time. Feldhaus’ retirement plans have a combined cash value of over $195,000. The court also stated, “If [Fel-dhaus] desires a [Qualified Domestic Relations Order] for an absolute 50/50 split, then [she] will receive her marital share of [Schreiner’s] monthly benefit and an equalization payment of $109,993 will need to be made to [Schreiner].” In other words, Feldhaus cannot have her cake and eat it too. She was given the opportunity to receive the 50/50 split that she desired, but she would have to wait for the monthly retirement payments just as Schreiner would. She would also share equally in the risk that he would not live to receive the full value of the policy.

[¶ 19.] We find no abuse of discretion in the trial court’s distribution of property and we will not second-guess the trial court’s decision where there is sufficient evidence to support its findings. Therefore, we affirm the trial court’s distribution of property.

' [¶ 20.] SABERS, AMUNDSON, and, KONENKAMP, Justices, and MARTIN, Retired Circuit Judge, concur.

[¶ 21.] MARTIN, Retired Circuit Judge, sitting for ZINTER, Justice, disqualified.

        . Feldhaus asserts that the court should be held to its original conclusion during trial that “[t]his is a 20-year marriage and the assets of the marital estate the Court will attempt to divide as equally as possible.”

      . Feldhaus cites Koenig v. Weber for the proposition that the court cannot consider Schreiner’s heart condition in the seven-factor analysis because Schreiner "did not support his assertions with medical testimony." See 84 S.D. 558, 174 N.W.2d 218, 221-22 (1970). Feldhaus reliance on that case is misguided. Koenig is a personal injury case that states:
      The rule in this state is that where an injury is objective and plainly apparent the jury may consider such elements without medical testimony but where the injury is of a subjective nature where laymen could not reasonably know whether there will be future pain and suffering, then expert testimony is required to aid the jury in its determination.

        Id. Clearly, this rule is not applicable to the circumstances here.


author: SACKETT, C.J.

text:
    BEERITE TIRE DISPOSAL/RECYCLING, INC., Plaintiff-Appellee, v. CITY OF RHODES, Iowa, Defendant-Appellant.
    No. 01-0394.
    Court of Appeals of Iowa.
    April 24, 2002.
    Max Buck, of Grimes, Buck, Schoell & Beach, Marshalltown, for appellant.
    Curtis Ward, of Brooks & Ward, Mar-shalltown, for appellee.
    Heard by SACKETT, C.J., and HUITINK and HECHT, JJ.
   SACKETT, C.J.

Defendant-appellant City of Rhodes, Iowa, appeals the district court’s finding, in response to plaintiff-appellee BeeRite Tire Disposal/Recycling’s motion for separate adjudication of law points, that Rhodes City Ordinance 124 was invalid and unenforceable due to implied preemption by the state in the area of tire disposal under Iowa Code chapters 455B and 455D (1999). Defendant claims on appeal that the City of Rhodes was entitled to issue Ordinance 124 under its home rule power pursuant to Article 3, Section 38A of the Iowa Constitution, and that Ordinance 124 does not contradict, but rather further regulates, consistent with Iowa statutory provision, the disposal of tires in the Rhodes community. We reverse and remand to the district court.

Because defendant is appealing the district court’s separate adjudication of law points only, we deem this to be an interlocutory appeal. We regard defendant’s appeal as an application for interlocutory appeal under Iowa Rule of Appellate Procedure 6.2. Iowa R.App. P. 6.1. Having found that the district court’s ruling involves substantial rights of the parties, that it will materially affect the final decision, and that our determination of the correctness of the district court’s ruling before trial on the merits will better serve the interests of justice, we grant this appeal. Iowa. R.App. P. 6.2.

Plaintiff BeeRite began operations in Rhodes in 1997 under a five-year permit issued by the Iowa Department of Natural Resources (DNR). Apparently the City of Rhodes became uncomfortable with BeeR-ite’s operations and DNR’s oversight of them. On April 5, 1999, the City of Rhodes adopted its own ordinance regarding tire disposal. This ordinance, Ordinance 124, was similar to Iowa Code section 455D.11, which governs tire disposal, but it imposed stricter regulations. The district court found these additional restrictions included the following:

1) the ordinance required a permit for a storage facility processing more than 100 tires, when state law only required such a permit for a facility processing more than 500 tires;
2) the ordinance required an additional $100 annual permit fee, payable to the City, when state law only required an $850 annual permit fee, payable to the DNR;
3) the ordinance limited the overall storage of tires to 45,648 cubic feet, when state law imposed the limit at 50,000 cubic feet per pile of tires;
4) the ordinance required a solid metal fence enclosing the facility, when state law required that fence to be chain-link, or its equivalent;
5) the ordinance prohibited more then 45,648 cubic feet of tires being stored in any building on site, while state law prohibited more then 50,000 cubic feet;
6) the ordinance prohibited the storage of more than 50,000 cubic feet of processed waste tires, while state law prohibited storage of more tires than could be processed in a six-month period.

After adopting the ordinance, the City of Rhodes sent BeeRite a letter advising it to cease and desist its business operations until it obtained a local permit. In response, BeeRite brought this action seeking a writ of certiorari declaring the ordinance invalid and unenforceable. Following a hearing on October 30, 2000, the district court found the ordinance invalid.

A separate adjudication of law points is a question of law under Iowa Rule of Civil Procedure 1.454. We therefore review this separate adjudication of law points for correction of errors at law. Iowa R.App. P. 6.4.

Article III, Section 38A of the Iowa Constitution provides for municipal home rule:

Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government....

As stated in that section, municipal home rule power cannot be “inconsistent with the laws of the general assembly.” Goodell v. Humboldt County, 575 N.W.2d 486, 500 (Iowa 1998) (citations omitted). The constitutional grant of home rule power is “carefully qualified so as to withhold the grant of power where it conflicts with [a] state statute.” Id. at 500, (quoting Gravert v. Nebergall, 539 N.W.2d 184, 189 (Iowa 1995)). A local ordinance, however, is not inconsistent with a state law unless it is irreconcilable with the state law. Goodell, 575 N.W.2d at 500; Iowa Code § 364.2(2) (emphasis added). A local law is irreconcilable with state law when the local law prohibits an act permitted by statute, or permits an act prohibited by a statute. Goodell, 575 N.W.2d at 500 (citations omitted).

Complicating our inquiry into the reconciliation of state and local law is our attempt to reconcile with these laws the seemingly contradictory statutory provision that a local government may “set standards and requirements which are higher or more stringent than those imposed by state law.” Id.; see Iowa Code § 364.3(3). As the supreme court noted in Goodell, it is difficult to reconcile section 364.3(3) with the well-settled proposition that a local law is irreconcilable with a state law when it prohibits an act permitted by statute. See Goodell, 575 N.W.2d at 500, 501 (“Any distinction between a local ordinance that is inconsistent with state law and one that merely sets a higher standard or requirement is at best subtle.”). It would appear that any standard made more stringent by local law pursuant to section 364.3(3) would necessarily be irreconcilable with that law: inherent in the act of further restricting a given activity is the prohibition of some previously permissible action. Nevertheless, we will attempt to determine whether the stricter regulations in this case could be construed under Goodell as still in harmony with the statutory scheme for tire storage and disposal.

In Goodell the supreme court found the Humboldt County ordinances regarding livestock confinement were irreconcilable with the state statutory livestock confinement scheme because, instead of “merely [setting] more stringent standards to regulate confinement operations,” the ordinances “revise[d] the state regulatory scheme.” Id. at 502.

The court determined that the first of four Humboldt County ordinances, Ordinance 22, irreconcilably revised the state regulatory scheme by creating a light of action in the county which under the state statute would have been impermissible. The state regulatory scheme required that an injured party give notice to the DNR before initiating his or her right of action (prohibiting actions against alleged violators whom the DNR was already pursuing), and that in cases where the civil penalty would exceed $3000, the DNR receive approval from the Environmental Protection Commission (EPC) before pursuing an enforcement action. The county ordinance bypassed all of these regulations, giving the county a right of action regardless of EPC approval or current DNR action. Id. at 502.

The second Humboldt County ordinance, Ordinance 23, irreconcilably revised the regulatory scheme by conditioning the operation of a livestock confinement facility upon the posting of financial assurance, an entirely different insurance scheme than the indemnity fund provided for in the statute. Id. at 504.

The third Humboldt County ordinance, Ordinance 24, irreconcilably revised the statutory scheme by creating sewage disposal requirements when statutory language had expressly delegated to the DNR the determination of all sewage disposal standards. Id. at 504.

The fourth Humboldt County ordinance, Ordinance 25, irreconcilably revised the statutory scheme in a manner similar to the way Ordinance 22 did: it created in the county a right to injunctive relief if a facility were determined, under the ordinance, to be a nuisance, in spite of a statutory rebuttable presumption that no nuisance existed if a facility was found to be compliant with statutory standards. In other words, here again an ordinance created a right of action which would have been clearly impermissible under the wording of the statute. Id. at 505-07.

We look to Goodell in determining whether the ordinances promulgated by the City of Rhodes are similarly irreconcilable with statutory policy and are therefore preempted by the state. We conclude that they are not. In Goodell, as well as in City of Iowa City v. Westinghouse Learning Corp., 264 N.W.2d 771, 772 (Iowa 1978) and Cedar Rapids Human Rights Comm’n v. Cedar Rapids Cmty. Sch. Dist., 222 N.W.2d 391, 402-03 (Iowa 1974), the ordinances at issue were irreconcilable because they contradicted the clear policy of the statutory scheme regulating the same subject matter rather than merely increasing the details of the regulation. The contradictory ordinances in those cases bypassed statutorily-mandated routes to relief, authorized rights of action or created violations which were disallowed by statute (not just merely unmentioned by statute), and/or they regulated action in areas where regulation had been expressly delegated to another entity.

In contrast the City of Rhodes’s ordinances further restrict the already-enforceable restrictions under Iowa code section 455D.11, thereby further promoting the underlying policy of that statute, but with greater force: they require a permit for storing a minimum of 100 plus tires, rather than a minimum of 500 plus tires; they limit the storage space to 45,648 cubic feet rather than 50,000 cubic feet; they require a solid metal fence rather than a chain link fence; they require an additional permit and fee of $100; they prohibit the storing of more than 45,648 cubic feet of tires in any building rather than 50,000 cubic feet; and their measure of the maximum allowable processed waste tire storage is 50,000 cubic feet rather than the number of tires able to be processed within six months.

We find no statutory scheme which would be either bypassed, contradicted, or overridden by the City of Rhodes’s tire disposal regulations in the manner that the local livestock confinement regulations contradicted the legislative scheme in Goo-dell. We therefore find these challenged municipal regulations in and of themselves do not unduly modify the tire disposal statutory scheme established by the State and do not stand in opposition to regulations promulgated by the Iowa legislature. The only function of these regulations is to impose the additional, non-prohibitive fee of $100, and to further restrict those particular areas of disposal (pile size, minimum number for permit, maximum number, fence type, maximum storage space) which the legislature has already restricted.

Further, the subject matter here is not livestock confinement as it was in Goodell. The very subject matter in Goodell distinguishes that case. First, livestock confinement is an issue upon which Iowa’s economy depends and where there is a clear legislative purpose to issue regulations intending to limit local over-regulation in that area. See Goodell, 575 N.W.2d at 503-507. There is no similar legislative agenda to regulate the regulation of tire disposal. Secondly, unlike the problem of livestock confinement waste where resulting pollutants enter air and water and thus flow freely throughout the state, tire piles are confined to one area, and there is consequently less of an inherent need for regulations throughout the state to be uniform in order to make any one regulation enforceable.

For these reasons, and for the reason that were it not effective under facts such as these, Iowa Code section 364.3(3) would be meaningless, we find Ordinance 124 of the City of Rhodes is valid and enforceable. Accordingly, we reverse the district court’s determination to the contrary and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Formerly Iowa Rule of Appellate Procedure 1.

      . Formerly Iowa Rule of Appellate Procedure 2.

      . Formerly Iowa R. Civ. P. 116.

      . Formerly Iowa R. Civ. P. 4.

      . In Goodell the ordinance at issue was a county ordinance, rather than a city ordinance. The court, therefore, made reference to section 331.301(6) rather than section 364.3(3), the applicable statute here.


text:
    In the Matter of PROPERTY SEIZED FROM Lula M. WILLIAMS. Lula M. Williams, Appellant.
    No. 00-0194.
    Court of Appeals of Iowa.
    May 15, 2002.

      Robert A. Wright, Sr., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Andrew Prosser, Assistant County Attorney, for appellee State.
    Heard by SACKETT, C.J, and ZIMMER and HECHT, JJ.
   SACKETT, C.J.

Appellant Lula M. Williams challenges an order in an in rem forfeiture proceeding granting the State’s request to forfeit $7,559.39 in cash that was seized from Williams’s home during the execution of a search warrant. Williams contends the forfeiture should be reversed because (1) the district court did not have jurisdiction to hear the matter, as the hearing was not held within sixty days of the service of the complaint in accordance with the provisions of Iowa Code section 809A.13 (1999); (2) the State failed to show good cause for holding the hearing some two hundred and fifty-three days following the acceptance of service of the complaint; and (3) the State failed to offer sufficient evidence to support the forfeiture. We disagree with Williams’s contention that the sixty-day provision in section 809A.13 is jurisdictional and affirm the district court on that issue. We agree with Williams, however, that the State has failed to show good cause for not holding the hearing within sixty days. We affirm in part, reverse in part, and dismiss.

Review of forfeiture proceedings is for correction of errors at law. State v. $10,000 Seized from Mary Patrick, 562 N.W.2d 192, 194 (Iowa Ct.App.1997). The evidence is examined in the light most favorable to the district court judgment, and the findings are construed liberally to support the district court’s decision. In re Property Seized from Chiodo, 555 N.W.2d 412, 414 (Iowa 1996). The conclusions of the trial court must be supported by substantial evidence which does not, however, denote some elevated quantity of proof. See State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). Rather, the relevant question is whether, after viewing all the evidence in the light most favorable to the appellee, any rational trier of fact could have found the essential elements. Id.

We review a district court’s ruling on a motion to dismiss for an abuse of discretion. State v. Orte, 541 N.W.2d 895, 898 (Iowa Ct.App.1995) (citing State v. Todd, 468 N.W.2d 462, 470 (Iowa 1991)). “We find such an abuse when the district court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Schettler v. Iowa Dist. Ct., 509 N.W.2d 459, 464 (Iowa 1993) (quoted in Channon v. United Parcel Service, Inc., 629 N.W.2d 835, 859 (Iowa 2001)).

The first issue on appeal deals with the time it took to bring to hearing an “In Rem Forfeiture Complaint” seeking forfeiture of the cash. The action was filed by the State on April 5, 1999. This case, however, has a lengthy history and initially involved other property also, which is not a subject of this appeal. Williams’s house was searched on May 1,1998, and the cash and other items were seized. Four days after the search, on May 5, 1998, Williams filed a claim for the return of the cash and other property with the Burlington police department. Williams claimed she needed the cash to pay bills. On June 8, 1998 Williams filed a second claim for return of the cash and other property in the district court for Des Moines County. Neither the Burlington police department nor the State responded to either of Williams’s claims seeking the return of the cash and other property. On January 19, 1999 Williams filed a third request for the return of the cash and other property. She asked that the matter be set for hearing, and the clerk issued a “Notice of Hearing on Seized Property” and set a hearing for January 19, 1999. An amended order was filed on January 14, 1999 setting the hearing for February 1, 1999. The State answered Williams’s third request on January 19, 1999, and alleged that a forfeiture notice was on file. On January 29, 1999, Williams resisted the State’s answer and demanded the return of seized property obtained under the May 1, 1998 warrant. She contended that the criminal charges against her had been dismissed pursuant to Iowa Rule of Criminal Procedure 27, and the State had not demonstrated the evidence was needed in a criminal investigation or prosecution. She further contended that the State’s “Notice of Pending Forfeiture” was not timely and was in violation of her constitutional rights. On February 1, 1999 a hearing on Williams’s request was held. The court filed an order on February 2, 1999 stating that at the February 1, 1999 hearing the State informed the court it intended to call witnesses who were not available because it believed the hearing that day did not contemplate an evidentiary hearing. The court also said it appeared Williams intended or would call witnesses to establish her claims. The court concluded the matter should be referred to the case coordinator to schedule a hearing. The court then ordered the return of certain items agreed to by the parties, but the cash was not included in the order of property to be returned.

On April 5, 1999 the State filed the “In Rem Forfeiture Complaint” which forms the basis of this controversy. Williams’s attorney signed an acceptance of service of process and entry of appearance in the matter on April 7, 1999. The acceptance and appearance were not filed until April 19, 1999. On April 27, 1999, eight days after the acceptance of service was filed, Williams filed her verified answer. She contended she was the owner of the cash and other property. She alleged the money had come from various sources and denied that it was used in or facilitated a public offense. She further contended she had filed motions seeking the return of the property. She contended the property was not forfeitable and to do so would violate her constitutional right to due process under state and federal constitutions.

On July 15, 1999 the case coordinator for the Eighth Judicial District noted in a written document that the case had been on file for 120 days or more and the case was set for a trial-setting conference on September 14, 1999. The record provides no information as to whether the telephone hearing was held, or if held, what transpired.

The matter came on for trial on December 28, 1999, at which time Williams made an oral motion to dismiss, contending the matter should be dismissed because a hearing was not1 held within sixty days as provided for by the statute. Iowa Code § 809A.13(7) (1999). The district court concluded the sixty days expired on about May 5, 1999. The district court determined that the hearing requirement was not jurisdictional. The court further noted section 809A.13(7) allowed the court to continue the hearing for good cause, which the district court determined gave it wide discretion to continue the hearing if the circumstances warrant. The court found nothing in the record that showed a reason for the delay in setting the hearing. The court said it also found nothing challenging the delay or arguing there was not good cause for the delay. The court reasoned that if Williams had a concern that the hearing was not held within the statutory time frame, she should have raised the issue in May of 1999. The court determined the hearing time was either by agreement of the parties or due to general scheduling procedures of the court though admitting there was not evidence to support either conclusion. The district court specifically found, “Regardless of the reasons for the delay, it is clear that the Claimant [Williams] was fully aware of the sixty day provisions in the Code yet filed no motions or took any other type of action until well after the time had run.” The court also found Williams did not file an answer in a timely manner as it was not filed until fifty-two days after the complaint was filed. The court went on to determine it did not believe Williams should benefit from a technical violation of procedures regarding timeliness when she did not abide by similar timeliness rules set for her in the same statute.

Williams first contends that the district court incorrectly determined the sixty-day period for hearing in the statute was directory instead of jurisdictional and argues the failure to hold the hearing in the time frame of the statute dictates a dismissal of the forfeiture. We agree with the district court that the sixty-day period is directory.

Although the forfeiture statutes in chapters 809 and 809A are not criminal statutes, they are penal in nature and must be strictly construed. See Matter of Wagner, 482 N.W.2d 160, 162 (Iowa 1992); In re Raster, 454 N.W.2d 876, 877 (Iowa 1990). We construe forfeiture statutes with a goal of promoting and giving effect to the intention of the legislature. Id.

The State contends this issue was decided in In re Property Seized from Sopoci, 467 N.W.2d 799, 800 (1991), where the court addressed a similar claim under an earlier statute. In Sopoei, the claimant argued the fact that the forfeiture hearing was held several days late was a jurisdictional defect and the forfeiture proceedings were void and of no force or effect. Sopoci, 467 N.W.2d at 799. The court denied Sopoci’s claim, reasoning, among other things, that although the thirty-day period prescribed in the section then at issue reflected the legislature’s view as to the preferred time frame in which the court should act, the court could not read into the statute the intent to deny the court the power to act beyond that time should exigencies require it to do so. Id. at 800. The court further said there was no provision in section 809.10 that a failure to abide by the time established by the statute was fatal to the State’s effort to forfeit the property, but such provisions existed in other sections of chapter 809. Id. The court, noting the absence of such a provision, held the thirty-day hearing requirement was not intended to be jurisdictional. Id. at 800.

Williams contends that the revision of the forfeiture provisions changed the forfeiture law so that the time provided by the legislature for a hearing is now jurisdictional. Williams reasons this is because there was no provision in the earlier statute for continuances for good cause. We reject Williams’s argument that the addition of the language allowing continuances for good cause altered the purpose of the statute. A statutory revision will not be construed as altering the law unless the legislature’s intent to do so is clear and unmistakable. State ex rel. Schuder v. Schuder, 578 N.W.2d 685, 687 (Iowa 1998); State Bd. of Eng’g Exam’rs v. Olson, 421 N.W.2d 523, 525 (Iowa 1988); Peffers v. City of Des Moines, 299 N.W.2d 675, 678 (Iowa 1980). There being no clear legislative intent to the contrary, we, as did the district court, rely on Sopoci and find the time period to be directory and not jurisdictional. Furthermore, as in chapter 809 analyzed by the supreme court in Sopoci chapter 809A contains sections in which failure to meet the time restrictions is fatal to the forfeiture proceeding. In addition, the supreme court has stated:

If the prescribed duty is essential to the main objective of the statute, the statute ordinarily is mandatory and a violation will invalidate subsequent proceedings under it. If the duty is not essential to accomplishing the principal purpose of. the statute but is designed to assure order and promptness in the proceeding, the statute ordinarily is directory and a violation will not invalidate subsequent proceedings unless prejudice is shown.

Taylor v. Dep’t of Transp., 260 N.W.2d 521, 522-23 (Iowa 1977) (quoted in Sopoci, 467 N.W.2d at 800). We conclude the time restriction in the current section 809A. 13(7) is “designed to assure order and promptness in the proceeding” and, consequently, is directory, not jurisdictional. We affirm the district court on that issue.

Williams further contends that the State failed to show any good cause for the delay. The State in its brief does not argue or suggest that good cause was shown for the delay. Williams argues the district court incorrectly determined it was her responsibility to bring the matter to trial and that the district court incorrectly determined she failed to file a timely answer.

Neither the district court nor the State has cited any authority to support the proposition that in a forfeiture case it is the claimant’s responsibility to bring the matter to trial. We do not find any such authority either. Nor do we find this to be a correct holding. A defendant in either a criminal or a civil case can seek dismissal where the party bringing the suit fails to seek trial under the required time directive. See Orte, 541 N.W.2d at 898 (defendant has no duty to bring him or herself to trial); State v. Todd, 468 N.W.2d 462, 469 (Iowa 1991) (the burden remains on the State even after the ninety-day speedy trial period set forth in the rules of criminal procedure has passed). See also Iowa R. Civ. P. 1.944 (providing the burden of proceeding is on the plaintiff and courts will dismiss actions for lack of prosecution). To adopt a rule that would require a claimant in a forfeiture proceeding to bear the burden of bringing the action to trial would be contrary to accepted practice. The burden of bringing the cause within the required time frame was on the State. Therefore, Williams’s failure to file a motion to dismiss soon after the sixty-day period had passed or to bring the matter to hearing is not good cause for holding the hearing well beyond the statutory date. Nor is the district court’s finding that Williams did not file a timely answer. The district court incorrectly determined Williams waited over fifty days to file an answer. The date of service, not the date of filing, determines the time from which the filing of an answer runs. In this case Williams filed an answer within seven days of filing an acceptance of service.

In determining whether good cause exists for a delay the critical factor is the reason for the delay. State v. Olson, 528 N.W.2d 651, 654 (Iowa Ct.App.1995). The district court found no reason for the delay, nor do we. Another factor is whether the party seeking to benefit from the delay was the cause of the delay. See State v. Hamilton, 309 N.W.2d 471, 475 (Iowa 1981). We have found the district court incorrectly placed the burden of going forward on Williams and that the district court incorrectly computed the time her answer was due. Other than these two invalid reasons the district court found to attribute delay to Williams, the district court found nothing else. Nor do we. Another factor is the length of the delay and whether Williams has suffered prejudice. See State v. Bond, 340 N.W.2d 276, 279 (Iowa 1983). The delay was lengthy as contrasted to Sopoci where the delay appeared to be little more than a day. The State did not show, nor can we find, that there was not some prejudice inherent in the loss of cash for more than eighteen months. Additionally, despite Williams’s efforts to retrieve her cash immediately, the State took no affirmative action to forfeit until nearly ten months after the property was seized. Finding no good cause to justify the lengthy delay, we reverse the district court and dismiss the action. Haring done so we need not address the additional issue raised by Williams.

AFFIRMED IN PART, REVERSED IN PART, AND DISMISSED.

MILLER, J., takes no part.

      . Iowa Code section 809A.13(7) provides in relevant part: “The forfeiture hearing shall be held without a jury within sixty days after service of the complaint unless continued for good cause....”

      . Now Iowa R.Crim. P. 2.27.

      . Under the statute then controlling, the hearing was to be held in no less than five and no more than thirty days.

      . See, e.g., Iowa Code § 809.8 ("Failure to file [a notice of forfeiture] within [six months after seizure] terminates the state's right to claim a forfeiture of the property.”).

      . See, e.g., Iowa Code § 809A.8(1)(a) (seized property shall be released if the State fails to file a notice of forfeiture within ninety days after seizure).


author: MAHAN, P.J.

text:
    Colleen CARRUTHERS and Roger Ohde, Plaintiffs-Appellants, v. BOARD OF SUPERVISORS, POLK COUNTY, Iowa, Defendant-Appellee, James M. Gocke, Intervenor-Appellee.
    No. 01-1668.
    Court of Appeals of Iowa.
    May 31, 2002.

      Ed Skinner and R. Bradley Skinner of Skinner Law Office, P.C., Altoona, for appellant.
    Joseph Quinn of Nyemaster, Goode, Voigts, West, Hansell & O’Brien, P.C., Des Moines, for appellee Board of Supervisors.
    James M. Gocke, Ankeny, for appellee Gocke pro se.
    Considered by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
   MAHAN, P.J.

The plaintiffs appeal from a district court order dismissing their petition for writ of certiorari challenging the Board of Supervisors’ denial of their proposed subdivision plat. The plaintiffs contend the district court erred in determining the Board acted legally in denying this plat. We affirm.

Background Facts and Proceedings. Colleen Carruthers and Roger Ohde own approximately thirty acres of land in Polk County. The plaintiffs intended to develop their land as cluster lots and presented their plat to the Polk County Zoning Commission in the summer of 1999. They sought approval of a development of eleven cluster lots know as Trullinger Grove Plat 1. On September 27, 1999, the zoning commission rejected the plat. In September 2000 the plaintiffs submitted a revised Trullinger Grove Plat 1, which only included nine lots. On September 25, 2000, the zoning commission recommended approval to the Board. On April 10, 2001, the Board considered plaintiffs’ request for approval of the plat. The Board noted the zoning commission’s recommendation for approval and the verification from the county attorney’s office that the planned development was in compliance with all county ordinances. The Board also permitted public comment from several neighboring homeowners and received a petition against the proposed development signed by approximately sixty neighbors. Following the public comments, the Board considered and discussed the proposed plat. The supervisors then voted 4-0 to deny the plaintiffs’ request.

On May 7, 2001, the plaintiffs filed a petition for writ of certiorari challenging the legality of the Board’s rejection of their proposed plat. On May 31, 2001, James M. Gocke, a property owner immediately adjacent to the proposed plat, filed a motion for intervention. The district court granted the motion. Following a trial, the district court concluded there was sufficient evidence in the record to support the Board’s decision and concluded the plaintiffs failed to meet their burden of establishing any illegal act on the part of the Board. The court dismissed plaintiffs’ petition. The plaintiffs appeal.

Standard of Review. Our review of such actions is at law, not de novo. Petersen v. Harrison County Bd. of Sup’rs, 580 N.W.2d 790, 793 (Iowa 1998). The question we consider in this appeal is whether the Board’s decision is supported by substantial evidence. Sergeant Bluff-Luton Sch. Dist. v. City Council of Sioux City, 605 N.W.2d 294, 297 (Iowa 2000). Evidence is substantial “when a reasonable mind could accept it as adequate to reach the same findings.” City of Cedar Rapids v. Municipal Fire & Police Retirement Sys., 526 N.W.2d 284, 287 (Iowa 1995). “ ‘If the district court’s findings of fact leave the reasonableness of the board’s action open to a fair difference of opinion, the court may not substitute its decision for that of the board.’ ” Helmke v. Bd. of Adjustment, 418 N.W.2d 346, 347 (Iowa 1988) (quoting Weldon v. Zoning Bd., 250 N.W.2d 396, 401 (Iowa 1977)).

Our rules of civil procedure provide that “[u]nless otherwise specially provided by statute, the judgment on cer-tiorari shall be limited to sustaining the proceedings below, or annulling the same wholly or in part, to the extent that they were illegal or in excess of jurisdiction. ...” Iowa R. Civ. P. 1.1411. Illegality exists within the meaning of the rule when the findings upon which the Board based its conclusions of law do not have evidentiary support or when the court has incorrectly applied the proper rule of law. Fisher v. Chickasaw County, 553 N.W.2d 331, 334 (Iowa 1996). We presume the Board properly performed its duty under the law, unless clear evidence to the contrary appears. Petersen, 580 N.W.2d at 793. The burden of showing illegality rests upon the asserting party. Id.

Legality of the Board of Supervisors’ Decision. The controlling statute in this case is Iowa Code section 354.8, which provides:

A proposed subdivision plat lying within the jurisdiction of a governing body shall be submitted to that governing body for review and approval prior to recording. A city may establish jurisdiction to review subdivisions outside its boundaries pursuant to the provisions of section 354.9. Governing bodies shall apply reasonable standards and conditions in accordance with applicable statutes and ordinances for the review and approval of subdivisions. The governing body, within sixty days of application for final approval of the subdivision plat, shall determine whether the subdivision conforms to its comprehensive plan and shall give consideration to the possible burden on public improvements and to a balance of interests between the proprietor, future purchasers, and the public interest in the subdivision when reviewing the proposed subdivision and when requiring the installation of public improvements in conjunction with approval of a subdivision. The governing body shall not issue final approval of a subdivision plat unless the subdivision plat conforms to sections 354.6, 354.11, and 355.8.
If the subdivision plat and all matters related to final approval of the subdivision plat conform to the standards and conditions established by the governing body, and conform to this chapter and chapter 355, the governing body, by resolution, shall approve the plat and certify the resolution which shall be recorded with the plat. The recorder shall refuse to accept a subdivision plat presented for recording without a resolution from each applicable governing body approving the subdivision plat or waiving the right to review.

Iowa Code § 354.8 (1999) (emphasis added).

We apply a liberal approach to subdivision decisions by granting local governing bodies more discretion in applying platting ordinances. Our supreme court has stated:

This approach takes account of the likelihood that not every conceivable flaw, although it may be of considerable practical moment, can be anticipated by specific language in ordinances and statutes. It also allows the platting function to be used more effectively as an accompaniment of zoning.... On balance, we incline toward a reasonably liberal reading of subdivision legislation, subject to the watchful eyes of the courts under their de novo review. At the same time, we hold that councils must not approve or disapprove on whim but rather on the facts of each case and on the manifest objects and purposes of the legislation.

Oakes Constr. Co. v. City of Iowa City, 304 N.W.2d 797, 806 (Iowa 1981) (citations omitted). Therefore, a local governing body has the flexibility to disapprove plats or condition approval for reasons that “are not spelled out in so many words” in the governing statutes and ordinances. Id.

In the present case, the plaintiffs contend that because their final revised plat was in compliance with all county ordinances, including the subdivision ordinances, the Board was required by section 354.8 to approve the plat. We disagree. Approval was not mandated by section 354.8. Applying the reasoning of Oakes, section 354.8 clearly provides a local governing body with discretion in determining whether to approve a proposed subdivision plat. The Board was required to “give consideration to the possible burden on public improvements and to a balance of interests between the proprietor, future purchasers, and the public interest in the subdivision when reviewing the proposed subdivision.... ” Iowa Code § 354.8. This is exactly what the Board did with regard to the plaintiffs’ proposed subdivision. It listened to the public comments, considered the burden on public services, and balanced this against the plaintiffs’ interests in the proposed development. The district court concluded the Board acted legally. We agree. The plaintiffs have failed to meet their burden of establishing any illegal act. The district court further concluded, and we agree, that there is sufficient evidence in the record to support the Board’s decision to reject the plaintiffs’ proposed subdivision plat. Accordingly, we affirm the district court’s dismissal of the plaintiffs’ petition for certiorari.

AFFIRMED.

      . Plaintiffs land is located in a zoning district known as "estate district,” which "is intended to provide for housing on large lots.” Polk County, Iowa, Zoning Ordinance § 3301(C) (1991).

      . The plaintiffs decided not to seek judicial review of the Board's decision as provided for in Iowa Code section 354.10 (1999).

      . When Oakes was decided, Iowa Code § 354.8 did not exist. The relevant section was 409.14. The Legislature enacted § 354.8 in 1990 and codified Oakes's "liberal approach” theory.

      . The Board recognized that there had been a change in the character and nature of the area since the enactment of the present zoning ordinances. As such, the Board noted that the proposed high density cluster lot subdivision would be contrary to the established estate district area. In addition, at least one supervisor acknowledged that the county would be unable to assure adequate services, such as water and fire protection, to the area.


author: HARTEN, Judge.

text:
    STATE of Minnesota, Appellant, v. Jeffrey Mark TSCHIDA, Respondent.
    No. C4-02-477.
    Court of Appeals of Minnesota.
    June 18, 2002.
    Mike Hatch, Attorney General, St. Paul, and Shari A. Jacobus, Kari L. Lillesand, Jensen, Bell, Converse & Erickson, St. Paul, for appellant.
    Rodd A. Tschida, St. Paul, for respondent.
    Considered and decided by HARTEN, Presiding Judge, LANSING, Judge, and WILLIS, Judge.
   SPECIAL TERM OPINION

HARTEN, Judge.

The state filed this appeal from a pretrial order dismissing a complaint. This court issued an order questioning jurisdiction. After reviewing the parties’ jurisdictional memoranda, we accept jurisdiction.

FACTS

The state filed a complaint charging respondent Jeffrey Tschida with obstruction of legal process, Minn.Stat. § 609.50(1) (2000), and disobeying a lawful police order in violation of a Roseville city ordinance. The complaint alleged that when police responded to a 911 call reporting a “suspicious vehicle” in a motel parking lot, they discovered Tschida and a companion, who both exited the vehicle but complied with a police command to return to it. The district court ruled that this command, which preceded the conduct with which Tschida was later charged, was a “seizure” unsupported by a reasonable, articulable suspicion. On 15 March 2002, the district court issued an order granting Tschida’s motion to dismiss the complaint.

On 25 March 2002, the state filed a notice of appeal from the district court’s dismissal order. The state also filed a statement of the case indicating that no transcript was required. On 12 April 2002, the state filed its appellant’s brief. Because the brief had not been filed within 15 days following the filing of the appeal, this court questioned jurisdiction. After reviewing the parties’ jurisdictional memo-randa, this court at special term concluded that a special term opinion on the jurisdictional question should be issued.

ISSUES

1. Was the state’s appellant’s brief timely filed?

2. Are there “special circumstances” warranting acceptance of jurisdiction?

ANALYSIS

1. Timeliness

This court questioned jurisdiction over this prosecution pretrial appeal after the state failed to file its appellant’s brief within 15 days after it filed the notice of appeal. In a pretrial appeal, timely filing of the appellant’s brief is jurisdictional. State v. Schubring, 429 N.W.2d 323, 324 (Minn.App.1988). The supreme court has stated that “absent special circumstances,” a prosecution pretrial appeal should be dismissed if the state does not timely file its appellant’s brief. State v. Olson, 294 N.W.2d 320, 321 (Minn.1980).

The briefing rule for prosecution pretrial appeals states:

Within fifteen (15) days of delivery of the transcripts, appellant shall file the appellant’s brief * * *.

Minn. R.Crim. P. 28.04, subd. 2(3). The statement of the case filed by the state indicated that no transcript was necessary, and none was ordered. The state’s appellant’s brief was filed on 12 April, which was the eighteenth day after filing of the notice of appeal on 25 March. As is apparent from the language quoted above, there is no provision in Rule 28.04, subd. 2(3), for calculating the due date of appellant’s brief when no transcript has been ordered. In other types of appeals, this alternative due date is calculated from the date of filing of the notice of appeal. See Minn. R.Crim. P. 28.02, subd. 10 (defense appeals); Minn. R. Civ.App. P. 131.01, subd. 1 (civil appeals).

The state argues that because there is no provision in Minn. R.Crim. P. 28.04 for calculating the due date when no transcript is ordered, the civil appellate rules must apply. See Minn. R.Crim. P. 28.01, subd. 2 (providing that civil appellate rules govern criminal appeals “[ejxcept as otherwise provided” in criminal rules). Instead of borrowing the alternative due-date calculation for filing of appellant’s brief, however, the state would have this court borrow the longer 30-day briefing period for civil appeals. See Minn. R. Civ.App. P. 131.01, subd. 1. But the problem with the criminal rule would not be solved by borrowing a different briefing period from the civil appellate rules. It would still be unclear when the briefing period begins to run.

Many prosecution pretrial appeals could not be scheduled without having a way to calculate the due date for appellant’s brief when no transcript is ordered. This alternative due date is particularly critical for prosecution pretrial appeals, the only type of appeal in which timely filing of the appellant’s brief is jurisdictional. See Olson, 294 N.W.2d at 321; cf. Minn. R.Crim. P. 28.02, subd. 4 (stating jurisdictional requirement for defense appeals). This court’s practice has been to calculate this alternative due date from the filing of the notice of appeal. This calculation is not only consistent with the rules governing other appeals, but also recognizes that an appeal in which no transcript is required is ready to be briefed. Following this court’s practice, therefore, the state’s appellant’s brief was not timely filed.

2. Special Circumstances

This court may accept jurisdiction over a pretrial appeal, despite the state’s failure to timely file its appellant’s brief, if there are “special circumstances.” Schubring, 429 N.W.2d at 324 (quotation omitted). Here, the rule gave the prosecution no guidance in calculating the due date for its appellant’s brief. As the supreme court has recognized, appellate rules should not be allowed to function as a “trap for the unwary.” Huntsman v. Huntsman, 633 N.W.2d 852, 856 (Minn.2001). We conclude that the omission from Minn. R.Crim. P. 28.04, subd. 2(3), of any alternative calculation of the due date and the lack of any published opinion on the issue constituted “special circumstances” in this case excusing the late filing of appellant’s brief.

DECISION

The appellant’s brief was not filed within 15 days of the filing of the notice of appeal and, therefore, was not timely. But “special circumstances” exist warranting this court in accepting jurisdiction.

Jurisdiction accepted.