text:
    2003 SD 60
    BANNER HEALTH SYSTEM, Plaintiff, v. Lawrence E. LONG, in his official capacity as Attorney General of South Dakota, Defendant.
    No. 22543.
    Supreme Court of South Dakota.
    Argued March 24, 2003.
    Decided May 21, 2003.

      Lonnie R. Braun of Thomas, Nooney, Braun, Solay & Bernard, Rapid City, South Dakota, and Patrick J. Kelleher, Patrick S. Coffey, Peter C. Koch of Gardner, Carton & Douglas LLC, Chicago, Illinois, Attorneys for plaintiff.
    Lawrence E. Long, Attorney General, Mark W. Barnett, Chief Deputy Attorney General, Roxanne Giedd, Jeffrey P. Hal-lem, Assistant Attorney Generals, Pierre, South Dakota, Attorneys for defendant.
   SABERS, Justice.

[¶ 1.] On March 8, 2002, Banner Health System (Banner) filed a complaint in the United States District Court for declaratory and other relief against the South Dakota Attorney General. Banner sought a ruling that it is governed solely by the state’s nonprofit corporation law with respect to the sale of its facilities in South Dakota. The Attorney General filed a motion to dismiss. The district court denied the motion to dismiss and certified the following question to this Court:

Whether the laws of South Dakota recognize any legal theory that would subject any of the assets of a nonprofit corporation or proceeds from the sale of those assets to an implied or constructive charitable trust in the absence of an express trust agreement.

[¶ 2.] This Court entered an order on October 10, 2002 accepting certification of the question. Upon consideration, we answer the question in the affirmative and hold that South Dakota law does recognize legal theories that would subject Banner’s assets to an implied charitable trust assuming certain alleged and disputed facts are established.

PACTS

[¶ 3.] The Attorney General asserts detailed facts, which, if proven, could support the imposition of an implied, resulting or constructive trust. Banner argues that the facts asserted by the Attorney General cannot be considered at all by this Court in deciding this question. Banner would unduly tie the Court’s hands in an area of law which requires detailed factual analysis for proper legal determination. Therefore, we assume the following facts only for the purpose of answering the question posed by the Federal District Court. The Attorney General will of course be required to prove the facts in any subsequent proceeding.

[¶ 4.] For ease of discussion, we will discuss each facility’s corporate history separately.

Dorsett Home:

[¶5.] The Dorsett Home is a nursing home in Spearfish that was created as a result of a 1974 express trust bequest through the will of Olive Dorsett. The will left $60,000 for the purpose of “building a home for aged and indigent persons in the city of Spearfish for the benefit of residents of Meade, Butte and Lawrence Counties.” The South Dakota Hospital and Homes Association (SDHHA) solicited other donations including one from HW Clarkson for $63,000. The Dorsett trustees and SDHHA then received court approval for the distribution of assets from the estate to SDHHA for construction and operation of the home. The home was finished in 1955 with additional community donations of approximately $185,000 and land purchased from the city for substantially less than market value.

[¶ 6.] SDHHA subsequently changed its name to North Central Health and Retirement Homes Inc. and amended its articles of incorporation to provide that upon dissolution, any remaining corporate assets “would be distributed to the communities in which said assets are located.”

[¶ 7.] In 1975, the company again changed its name to North Central Health Services Inc. (North Central). In 1985 the company amended its articles of incorporation to provide that on dissolution the remaining assets of the corporation would be distributed to communities in which the assets were located and to charitable, educational or scientific organizations.

[¶ 8.] In 1998, North Central merged into and became a subsidiary of Lutheran Hospitals and Homes Society (Lutheran), which is a North Dakota charitable nonprofit corporation. North Central then amended its articles of incorporation to eliminate the dissolution restriction that the remaining assets would be distributed to the community.

[¶ 9.] In 1993, North Central entered into an agreement with Western Health Network Inc. (Western) for gift and donation of the Dorsett home and all of its assets. At the time of the agreement, Western’s corporate purpose was to engage in “charitable, scientific and education activities for the benefit of mankind generally.”

[¶ 10.] In 1996 or 1997, Western merged with Lutheran and Lutheran became the surviving entity. At the time of the merger, Lutheran’s purpose was “the operation, management, administration and maintenance of' general hospitals, nursing homes, and other facilities used in caring for the ill, infirm, handicapped and aged persons.” The name of the new entity became Lutheran Health Systems Inc. (Lutheran Health).

[¶ 11.] In August of 1999 Lutheran Health changed its name to Discovery Health System, a North Dakota nonprofit corporation.

[¶ 12.] In September of 1999, Discovery changed its name to Banner Health System, and in June 2001, Banner changed its corporate domicile to Arizona.

Lookout Memorial Hospital:

[¶ 13.] Lookout Memorial Hospital is located in Spearfish. It was established through contributions from the community worth $110,000 and real property gifted to the Lookout Memorial Hospital Corporation. The corporation’s purpose was to construct and maintain a hospital in Spearfish. On dissolution, the remaining assets were to be transferred to any public or nonprofit corporation capable of operating a hospital in Spearfish.

[¶ 14.] In approximately 1963, Lookout Corporation donated its assets to Lutheran for the purpose of constructing a hospital. Lutheran built and operated the hospital.

[¶ 15.] In 1988, Lutheran gifted and donated the hospital and its assets to Western. The remainder of Lookout’s corporate history is the same as that noted above for the Dorsett home.

Sturgis Hospital:

[¶ 16.] Sturgis Hospital was constructed by the Community Memorial Hospital Association (CMHA) a nonprofit corporation incorporated in 1948. CMHA’s corporate purpose was to establish and maintain hospitals and nursing homes within or without the city of Sturgis and to participate in any activity designed to promote the general health of the community.

[¶ 17.] In December of 1984, CMHA donated its assets to North Central. North Central’s articles at the time still retained the dissolution restriction that the assets were to be distributed to the communities in which they were located. In 1987, North Central renovated and used part of the assets donated by CMHA in constructing and operating a new hospital and nursing home. North Central eventually merged with Lutheran. In 1993, North Central donated the facility and assets to Western after North Central’s merger with Lutheran. The remaining corporate history is the same as that noted above for the Dorsett Home.

Belle Fourche Hospital:

[¶ 18.] The Belle Fourche Hospital was constructed on land purchased with $25,000 donated by a community resident and community donations raised in a contribution drive in 1975. The donations were given to the Belle Fourche Health Care Center, Inc., a nonprofit South Dakota corporation. The purpose of the corporation was to provide hospital facilities. The corporation had a restriction on dissolution that assets were to be distributed to the community on dissolution. In 1975, the articles of incorporation were amended to allow distribution of assets on dissolution to another charitable nonprofit corporation. Belle Fourche eventually merged with North Central. At the time of the merger, the distribution of assets upon dissolution was restricted by the articles of incorporation such that the assets would go to the community in which the assets were located.

[¶ 19.] In June 1993, the hospital’s assets were donated to Western after the North Central merger with Lutheran. The remaining history is the same as stated above regarding the Dorsett Home.

Eureka Nursing Home:

[¶ 20.] The Eureka Nursing Home was constructed in 1988 by North Central. At the time it was built, North Central’s articles of incorporation still retained the dissolution restriction on distribution of assets. Part of the cost of building the home was paid by a $300,000 community development block grant given by the city to North Central. Over $80,000 was donated by the community for construction. North Central donated the home and its assets to Western in June 1993. The remaining history is the same as that recited for the Dorsett Home.

Rosebud Nursing Home:

[¶ 21.] The Rosebud Nursing Home was constructed and operated by Rosebud Home, Inc., which was incorporated for the purpose of constructing the home. On dissolution, its assets were to be turned over to the Gregory County Board of Commissioners in trust to provide hospitalization and care for the elderly. The assets of the home were eventually donated to Lutheran which operated it until it merged with Western in 1996 or 1997. The remaining corporate history is as recited above. The Attorney General additionally alleges that title to the real property associated with the home is held by Western Hospital Corporation of South Dakota which is a wholly owned subsidiary of Banner and either will be or has already been dissolved.

Gregory Hospital:

[¶ 22.] In order to build the Gregory hospital, the community donated $400,000 through a fund drive in 1975. The hospital was constructed in 1976 by Lutheran. Lutheran operated the hospital until it merged with Western. The Attorney General further asserts that title to this land is also held by Western Hospital Corporation of South Dakota.

[¶ 23.] The Attorney General also alleges that in addition to gifts from the communities for construction, communities also provided other gifts and donations to the facilities. For example, Gregory held a fundraiser to purchase an ambulance and a dialysis unit which were given to the hospital. These gifts were part of the assets sold by Banner.

[¶ 24.] Banner is an Arizona charitable nonprofit corporation which operates a large nonprofit health care system. Banner has sold all of these facilities and their assets and intends to use the proceeds from the sale in support of its facilities located outside of South Dakota. While the sale was in progress, the Attorney General informed Banner that he believed the facilities were restricted by constructive charitable trusts and therefore the proceeds could not be removed from the communities in which the facilities were located. Banner filed its lawsuit in Federal District Court requesting a determination whether the facilities were restricted by constructive charitable trusts. Finding no controlling state law on the issue, the District Court certified the question to this Court.

[¶ 25.] WHETHER THE LAWS OF SOUTH DAKOTA RECOGNIZE ANY LEGAL THEORY THAT WOULD SUBJECT ANY OF THE ASSETS OF A NONPROFIT CORPORATION OR PROCEEDS FROM THE SALE OF THOSE ASSETS TO AN IMPLIED OR CONSTRUCTIVE CHARITABLE TRUST IN THE ABSENCE OF AN EXPRESS TRUST AGREEMENT.

[¶ 26.] SDCL 55-1-2 provides that trusts may be either express or implied. An implied trust is defined as one created by operation of law. SDCL 55-1-6. The South Dakota Legislature has enumerated several instances in which an implied trust may be imposed. Of most significance to this question is SDCL 55-1-11 which provides that the enumeration by the Legislature of circumstances allowing imposition of an implied trust:

does not exclude or prevent the arising of an implied trust in other cases nor prevent a court of equity from establishing and declaring an implied, resulting, or constructive trust in other cases and instances pursuant to the custom and practice of such courts.

As its name suggests, an implied trust requires no express trust agreement. An implied trust is used by the courts as a remedial device to restore the status quo and is therefore utilized when “a person owning title to property is under an equitable duty to convey it to another because he would be unjustly enriched if he were permitted to retain it.” Knock v. Knock, 80 S.D. 159, 166, 120 N.W.2d 572, 576 (1963) (additional citations omitted).

[¶ 27.] This Court has held that charitable trusts are recognized in South Dakota. In re Geppert’s Estate, 75 S.D. 96, 103, 59 N.W.2d 727, 731 (1953). A charitable trust is one wherein property is given for a purpose beneficial to a community, for example trusts for religious organizations, to help the poor in some manner, or for the advancement of science. Trusts for the promotion of health qualify as charitable. Geppert’s, 75 S.D. at 101, 59 N.W.2d at 729. At common law, in order to have a charitable trust, there must be an express indication of the desire to have certain property held for a charitable purpose. The elements for such a trust are property, a charitable purpose, indefinite beneficiaries, a trustee and a distinction between the equitable estate, which inures to the benefit of the beneficiaries, and the legal estate, which is held by the trustee.

[¶ 28.] Banner argues that SDCL chapters 47-22 through 47-28, South Dakota’s nonprofit corporation statutes, preclude application of trust principles to a nonprofit corporation. While nonprofit corporations are governed by nonprofit law, there is nothing in the code to indicate that the Legislature intended to abrogate common law and statutory trust provisions with regard to nonprofit corporations.

[¶ 29.] Rules of statutory construction require that the Court must read statutes together and to the extent possible, give effect to all of the language. Banner’s assertion that the nonprofit corporation statutes are the only applicable law would essentially read the provisions in SDCL chapter 55-1 on implied trusts out of the law with regard to nonprofit corporations. We reject that assertion and therefore must look to the common law and statutory remedies to address this question.

[¶ 30.] The Attorney General argues first that under common law trust principles, gifts or donations to charitable nonprofit corporations are divided into two groups. The first group includes gifts given for a purpose which matches the purposes of the corporation. The second group is made up of those gifts with a purpose that is narrower than the purpose of the nonprofit organization receiving the gift. The Attorney General argues as his first theory that gifts falling into the second group are subject to an implied charitable trust. His argument that this Court has recognized his theory relies on two early South Dakota eases, In re Havsgaard’s Estate, 59 S.D. 26, 238 N.W. 130 (1931) and Geppert’s Estate, 75 S.D. 96, 59 N.W.2d 727 (see discussion of Geppert’s Estate at ¶ 27). These cases provide little support for the first theory. Specifically, in Havsgaard’s Estate, this Court was aware of the fact that the gift was to be used in support of “part of the purposes and powers of the [beneficiary].” Havsgaard’s Estate, 59 S.D. 26, 238 N.W. at 132 (emphasis supplied). Although the opinion does not state the entire corporate purpose of the beneficiary, it is clear from the language of the opinion that the purpose for which the gift was given was not the sole purpose for which the beneficiary corporation was formed. If the common law required imposition of an implied charitable trust when the purpose of the donation is narrower than that of the receiving corporation, the Court in Havsgaard would have been required to impose a constructive trust.

[¶ 31.] The Attorney General also cites numerous cases from other jurisdictions to support his first theory. Most of the cases cited by the Attorney General are factually distinguishable. The majority of the case law cited by the Attorney General is insufficient to establish his contention that the common law allowed imposition of an implied charitable trust when the purpose of the gift is narrower than the purpose of the receiving corporation. However, there are two cases that appear to be more directly on point. In Pacific Home v. Los Angeles County, the California Supreme Court was faced with the question whether certain properties were “irrevocably dedicated” to exempt purposes so that they would qualify under the revenue and taxation code for a welfare exemption. The court stated that “all the assets of a corporation organized solely for charitable purposes must be deemed to be impressed with a charitable trust by virtue of the express declaration of the corporation’s purposes, and notwithstanding the absence of any express declaration by those who contribute such assets as to the purpose for which the contributions are made.” Pacific Home, 41 Cal.2d 844, 852, 264 P.2d 539, 543 (1953). The Court thus held that a corporation’s acceptance of assets under these .circumstances would establish a charitable trust for the declared corporate purposes. The only other case cited by either party which is directly on point is Kansas East Conference of United Methodist Church, Inc. v. Bethany Medical Center, Inc., 266 Kan. 366, 969 P.2d 859 (1998) where the Kansas Supreme Court held that a nonprofit charitable corporation running a hospital was governed by the State’s nonprofit corporation law rather than trust law.

[¶ 32.] Our research shows little support in South Dakota law or the common law for the first theory advanced by the Attorney General. However, the Attorney General asserts a detailed fact pattern, which, if established, might support the imposition of an implied charitable trust under SDCL 55-1-11 based on theories of unjust enrichment, breach of fiduciary duties, and improper amendment of the charitable corporation’s articles of incorporation.

[¶ 33.] The language of SDCL 55-1-11 provides the court of equity with broad power to impose an implied, resulting or constructive trust. Therefore, should the court find that Banner was unjustly enriched by the sale of the assets and removal of the proceeds from the local communities at the expense of those communities, the court would retain power to impose a constructive trust on those proceeds.

[¶ 34.] Furthermore, should the court find that an implied trust is warranted under SDCL 55-1-11, Banner and its corporate predecessors may be held accountable for breach of fiduciary duties to the communities. A “fiduciary includes any person or corporation which acts in a fiduciary capacity for an implied, resulting or constructive trust.” SDCL 55-7-2. As a fiduciary, the corporation has an obligation to act in good faith and is prohibited from using the trust property for its own benefit or to take part in a transaction concerning the trust which would pose an interest adverse to the interests of the beneficiaries. See SDCL 55-2-1 and 55-2-3. Here, the Attorney General asserts as facts copies of letters written by Peter Fine, President and CEO of Banner stating that it is making the sale of the facilities “in the best interest of Banner” rather than the best interest of the communities served by the facilities. In addition, a fiduciary duty may arise from a factual relationship without regard to a trust. See SDCL 55-7-2(2); Black’s Law Dictionary, 625 (6th ed.1990).

[¶ 35.] In summary, while we cannot accept the Attorney General’s position that an automatic implied charitable trust arises whenever the purpose of the donation is narrower than the purpose of the receiving corporation, we find nothing in South Dakota law which would prohibit imposition of an implied or constructive charitable trust if Banner is proven to have established the elements noted at ¶ 27 supra, or breached a fiduciary duty or been unjustly enriched.

[¶ 36.] The Attorney General’s next theory is that a nonprofit corporation may not amend its articles of incorporation in a manner that would alter the restrictions on the use and distribution of community-based assets already held by that corporation. The Attorney General asserts that certain corporate predecessors to Banner amended their articles of incorporation to remove a restriction requiring that assets be returned to the community should the corporation be dissolved. Were it not for these amendments, the Attorney General argues, Banner would not have been able to sell the assets and remove the proceeds from the community.

[¶ 37.] North Central, a corporate predecessor to Banner at the Spearfish, Stur-gis, Belle Fourche and Eureka facilities, amended its articles of incorporation in 1993 to remove a restriction that upon dissolution of the corporation, the assets would remain in the local communities. This amendment to the articles occurred after North Central acquired the South Dakota facilities. The Attorney General argues that trust and common law principles prevent a nonprofit corporation from making such a material amendment. Banner argues that SDCL 47-22-14, which authorizes a nonprofit corporation to amend its articles, controls.

[¶ 38.] SDCL 47-22-14 provides:

[a] corporation may amend its articles of incorporation, from time to time, in any and as many respects as may be desired, so long as its articles of incorporation as amended contain only such provisions as are lawful under chapters 47-22 to 47-28.

However, SDCL 47-22-22 provides:

[n]o amendment to the articles of incorporation shall affect any existing cause of action in favor of or against such corporation, or any pending action to which such corporation shall be a party, or the existing rights of persons other than members; and, in the event the corporation name shall be changed by amendment, no action brought by or against such corporation under its former name shall abate for that reason.

(emphasis supplied). The language of SDCL 47-22-22 limits the otherwise broad language of SDCL 47-22-12. To the extent that the Attorney General is able to prove that amendment of the articles affected the rights of nonmembers, we believe that a constructive charitable trust may be imposed on those assets donated to the local facilities before North Central amended its articles of incorporation. Any other rule of law would allow a charitable nonprofit corporation to eviscerate the charitable purpose for which it was formed without recourse for those who donated funds for that purpose. This result would be untenable because “the public could not be assured that funds it donated would be used for [proper] similar public charitable purposes.” Attorney General v. Hahnemann Hosp., 397 Mass. 820, 836, 494 N.E.2d 1011, 1021 (1986). Other courts have held that an amendment of a nonprofit corporation’s bylaws for the purpose of changing the corporate purpose was an abuse of the charitable trust created in gifts given to the corporation prior to the amendment. Los Angeles County Pioneer Society v. Historical Society of Southern California, 40 Cal.2d 852, 257 P.2d 1, 7-8 (1953). The Eighth Circuit Court of Appeals has also recognized this theory holding that the corporation’s power to amend its charter cannot be used to substantially change the purposes of the corporation as to assets previously gifted to the corporation. Stevens Brothers Foundation, Inc. v. Commissioner of Internal Revenue, 324 F.2d 633, 644 (8thCir.1963).

[¶ 39.] To the extent that a charitable trust is imposed on one of its predecessor corporations, Banner took the assets subject to that trust and would likewise be bound thereby. See e.g. Town of Cody, 64 Wyo. at 500, 196 P.2d at 381.

[¶ 40.] Based on SDCL chapter 55-1 and equitable principles, we believe that there are legal theories that would subject the assets of a nonprofit corporation or proceeds from the sale of those assets to an implied or constructive charitable trust even in the absence of an express trust agreement. We therefore answer the certified question in the affirmative. In addition, our enumeration of such theories herein is not intended to be exclusive, assuming other theories of legal liability can be established by the facts at trial.

[¶ 41.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . Our use of the term "implied” trust herein includes resulting and constructive trusts.

      . At oral argument, Chief Deputy Attorney General Barnett represented that he was anxious to bring forth volunteers who were instrumental in the fundraising for these projects and the specific representations made by them to induce these donors to contribute.

      . For example, several of the cases involved either express charitable trusts, see' e.g., Northwestern University v. Wesley Memorial Hospital, 290 Ill. 205, 125 N.E. 13 (1919), or merely restate propositions already found in South Dakota's nonprofit corporation statutes. See e.g., Town of Cody v. Buffalo Bill Memorial Association, 64 Wyo. 468, 196 P.2d 369 (1948) (stating the proposition found in SDCL 47-26-30(3) that a nonprofit corporation is required to transfer its assets upon dissolution to another nonprofit corporation engaged in activities which are "substantially similar" to those of the dissolving corporation).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2003 SD 57
    STATE of South Dakota, Plaintiff and Appellee, v. Shaun ARABIE, Defendant and Appellant.
    No. 22286.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 13, 2003.
    Decided May 21, 2003.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Michael Stonefield, Office of the Public Defender for Pennington County, Rapid City, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Shaun Arabie appeals his conviction and sentence for one count of first degree burglary and one count of second degree rape. We affirm.

FACTS

[¶ 2.] The victim was a thirty-one-year-old single mother who lived with her six-year-old son in a trailer home in Rapid City. Early on the morning of June 26, 2001, the victim was awakened in her bed when she felt some pressure on her chest. Opening her eyes, the victim found a male assailant, later identified as Arabie, lying on top of her holding a knife to her chest. Arabie told the victim not to scream because he had a knife and then pressed the serrated edge of the steak knife he was holding to her throat. The victim screamed and tried to squirm away, but Arabie instructed her to do as he said and he would not hurt her. Arabie forced the victim to remain on her back, pulled off her underwear and tore off the top of her nightgown. He then bit her on one of her breasts hard enough to draw blood and leave teeth marks. The victim continued to struggle, but Arabie became angry, pushed her down onto her back and choked her until her vision became blurry.

[¶ 3.] The struggling and Arabie’s threats went on for some time. Arabie eventually unfastened his jeans and pulled them down along with his underwear. He then forced the victim to perform oral sex on him until she told him that she was afraid she would vomit. Arabie instructed the victim to turn around and the victim, fearing what was to follow, begged Arabie to use some condoms that she had in her room. This angered Arabie who forced his penis into the victim’s vagina from his position behind her and raped her.

[¶ 4.] When the victim felt Arabie pull away, she turned around and saw him fastening his pants with his back toward her. The victim rose from the bed, pushed Arabie forward and struggled with him, pulling him into a headlock and then onto the floor. The two continued to fight and struggle for a time until Arabie slammed the victim’s head against a nightstand, stunning her. Arabie fled the room and the victim quickly shut her bedroom door, locked it and phoned for emergency assistance. Law enforcement officers later arrived on the scene and began their investigation.

[¶ 5.] The investigation of the above events led to identification of Arabie as the assailant. On July 19, 2001, Arabie was indicted for one count each of first degree burglary, second degree rape and aggravated assault. A part two information was also filed alleging Arabie to be a habitual offender based upon a 1997 burglary conviction in the State of Nebraska.

[¶ 6.] During the course of the ensuing proceedings, defense counsel filed a number of motions including a detailed discovery motion. Plea bargaining also took place. On December 5, 2001, Arabie pled guilty to first degree burglary and second degree rape in exchange for a dismissal of the aggravated assault charge and the part two habitual offender information. Sentencing was on January 16, 2002. The trial court sentenced Arabie to twenty-five years in the penitentiary, with five suspended, on the burglary conviction and to a consecutive twenty-five years in the penitentiary on the rape conviction.

[¶ 7.] Arabie appealed his conviction to this Court and filed his brief as a “Korth brief’ pursuant to this Court’s decision in State v. Korth, 2002 SD 101, 650 N.W.2d 528. In Korth, this Court held that in cases where court appointed counsel representing an indigent defendant on appeal determines that the case does not raise any arguably meritorious issues, counsel need not move to withdraw even if the appeal is entirely frivolous. See Korth, 2002 SD 101 at ¶ 16, 650 N.W.2d at 535. Rather, this Court adopted an alternative briefing procedure for such cases devised by the Oregon Supreme Court in State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). Several preliminary issues are presented by use of the Korth procedure in this case.

KORTH ISSUES

ISSUE ONE

[¶ 8.] May counsel raise and argue legal issues in Section A of a brief submitted under Korth?

[¶ 9.] Generally, the procedure this Court adopted in Korth requires briefs in cases where court appointed counsel has identified no meritorious issues for appeal to be in two parts: Section A completed by counsel to include, among other things, a statement “that counsel has not identified any arguably meritorious issue on appeal”; and, Section B to contain any claims of error requested by the client. See Korth, 2002 SD 101, n. 6, 650 N.W.2d at 535-36 (quoting Oregon Rule of Appellate Procedure 5.90). In summarizing the required contents of Section A and Section B of a brief in Korth, this Court referred to “the Oregon procedure of including a ‘Section A’ (issues the attorney believes are meritorious ) and ‘Section B’ (issues the attorney believes are frivolous, but briefed at the client’s request)[.]” Korth, 2002 SD 101, ¶ 17, 650 N.W.2d at 536 (emphasis added). At a later point this Court further instructed:

we find the appropriate and effective way to process this issue involving an absolute right to appeal and the right to appointed counsel for the indigent is for the filing of the “Section A” and “Section B” appellate brief. The former should be designated by the attorney as attorney issues, and the latter should be designated as issues that the client requested be submitted.

Id. (emphasis added).

[¶ 10.] As asserted by Arabie’s counsel, the language emphasized in the above quotations from Korth is inconsistent with the rules that this Court adopted from Balfour. Balfour makes clear that counsel should not argue any issues in Section A of the brief. Rather, counsel simply provides a statement that he or she “has thoroughly reviewed the record and discussed the case with trial counsel and the client, and that counsel has not identified any arguably meritorious issue on appeal.” Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 535 (quoting Oregon Rule of Appellate Procedure 5.90(1)(a)(iii)). Thus, notwithstanding what this Court said in Korth, there should be no “issues the attorney believes are meritorious” or “attorney issues” in a proper Korth brief. This is only logical because, if there are issues in the case that counsel believes are meritorious, counsel should obviously abandon the Korth procedure and brief and argue those issues as in any other criminal appeal.

[¶ 11.] Based upon the foregoing, the only issues that should be presented and argued in a Korth brief are those issues presented at the client’s request in Section B of the brief. This conclusion is reinforced by the following instructions set forth by the Oregon Supreme Court in Balfour:

(4) The appellant’s brief shall be divided into two sections, Section A and Section B. Section A of the appellant’s brief shall contain a statement of the case, including a statement of facts, sufficient to apprise the court of the jurisdictional basis for the appeal. Section A, under those circumstances, shall contain no assignments of error or argument.
(6) If the client seeks to raise one or more issues with the court that counsel considers to be frivolous, the brief shall contain a presentation of the issue or issues in a Section B. Section B of the appellant’s brief, under those circumstances, shall raise any claim of error requested by the client.
(7) Counsel shall provide the client with appropriate legal advice on these claims of error, but shall present to the court in the brief the issue that the client seeks to raise in the manner that the client seeks to raise it. In so doing, counsel’s role is limited to attempt to see to it that the client states the issues and arguments in proper appellate brief form and the brief is timely filed.

Balfour, 814 P.2d at 1080 (citations omitted)(emphasis added).

ISSUE TWO

[¶ 12.] Does Section A of Arabic’s brief meet the requirements of Korth?

[¶ 13.] Korth requires Section A of a brief to include: a statement of the case and facts encompassing those facts sufficient to present any claim or claims of error asserted by the client in Section B of the brief; a description of any significant motions filed in the case and the trial court’s disposition of the motions; a statement that the case is being submitted pursuant to Korth, that counsel has thoroughly reviewed the record and discussed the case with trial counsel and the client, and that' counsel has not identified any arguably meritorious issue on appeal; and, counsel’s signature. Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 535-536.

[¶ 14.] Counsel has complied with all of these requirements here. Counsel has provided a statement of the case and facts sufficient to address the issues raised in Section B of the brief. Although counsel did not discuss in detail the motions filed in the case and the trial court’s disposition of the motions, counsel did mention the motions and that they were not contested by the State. Counsel’s brief explicitly indicates: that it is submitted pursuant to Korth, supra; that counsel has thoroughly reviewed the record; that counsel was Arabic’s trial counsel;- that he has discussed the case and possible appellate issues with Arabie; and that he has not identified any arguably meritorious issues on appeal. Finally, counsel signed Section A of the brief. Thus, Section A meets all of the requirements for Section A of a Korth brief that are pertinent to this case.

ISSUE THREE

[¶ 15.] Does Section B of Arabic’s brief meet the requirements of Korth?

[¶ 16.] The rule governing the contents of Section B of a Korth brief provides:

Section B of [a] brief [filed under Korth ] shall contain any claim of error requested by the client and shall be signed by the client. Section B shall attempt to state the claim and any argument in support of the claim as nearly as practicable in the manner that the client seeks, in proper appellate brief form.

See Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 536 (emphasis added)(quoting Oregon Rule of Appellate Procedure (l)(b)).

[¶ 17.] Section B of Arabie’s brief contains three claims of error requested by Arabie and is signed by Arabie. The signature is not a mere formality. The above quotation from Korth makes clear that it is the client, not counsel, who controls the presentation of the issues in Section B of a brief. Counsel’s role is plainly limited to providing assistance in presenting the issues “as nearly as practicable ... in proper appellate brief form.” Id. The client’s signature verifies that counsel has, in fact, shared the brief with the client, that the client has reviewed it and that it adequately presents the client’s claims of error and arguments in support of the claims “in the manner that the client seeks[.]” Id. Thus, later contentions that counsel failed to adequately present the client’s claims in the manner desired by the client are avoided. For these reasons, the client’s signature is normally an essential part of Section B of a brief filed under Korth.

[¶ 18.] The State questions the sufficiency of Section B of Arabie’s brief, emphasizing that Korth requires that it state the client’s claims in “proper appellate brief form.” See Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 536. Citing the general rules of appellate procedure, the State points out that Section B does not contain any detailed arguments in that section or citations to controlling authorities. The State would apparently require counsel to act as in any other case and conduct extensive research, identify authorities and draft a detailed brief supporting the client’s arguments no matter how absurd or frivolous they might be. This is not required. As the Oregon courts have subsequently recognized, the Balfour procedure “does not authorize counsel to expend unnecessary amounts of time developing frivolous arguments.” Lee v. Maass, 118 Or.App. 401, 847 P.2d 890, 892 (1993) Here, counsel assisted Arabie to the extent “practicable” in presenting his arguments. That is all that Korth requires.

SECTION B ISSUES

[¶ 19.] Arabie raises three issues in Section B of his brief: two allegations of ineffective assistance of trial counsel and a third argument that the trial court improperly considered other similar charges pending against him in imposing his sentence. This Court must consider these issues “in the same manner as it considers and decides issues that are raised in any other direct criminal appeal.” Balfour, 814 P.2d at 1080. However, if, on reviewing the record and briefs, this Court identifies one or more “arguably meritorious” issues, it must notify appellant’s counsel of those issues and afford counsel time to file a supplemental brief addressing them. See Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 536. Time is also to be afforded to the State to file a supplemental response brief. See id.

[¶ 20.] Arabie’s claims of ineffective assistance of counsel are clearly of no merit in this direct appeal. As this Court has often observed:

Absent exceptional circumstances, we will not address an ineffective assistance claim on direct appeal. We depart from this principle only when trial counsel was “so ineffective and counsel’s representation ‘so casual’ as to represent a ‘manifest usurpation’ of [the defendant’s] constitutional rights.” The preferred arena for an ineffective assistance claim is a habeas corpus proceeding. While there are many reasons for this rule, [appellant’s] claims illustrate its main purpose: in habeas proceedings, attorneys charged with ineffectiveness can explain or defend their actions and strategies, and thus a inore complete picture of what occurred is available for review.

State v. Dillon, 2001 SD 97, ¶ 28, 682 N.W.2d 37, 48 (citations omitted).

[¶ 21.] As for Arabie’s claim of consideration of improper information at sentencing, it is settled that the range of evidence that may be considered at sentencing is extremely broad. As this Court set forth in State v. Conger, 268 N.W.2d 800, 801 802 (S.D.1978):

In determining the type and extent of punishment to be imposed, the sentencing judge may exercise wide discretion with respect to the type of information used as well as its source. He should have full access to the fullest information possible concerning the defendant’s life and characteristics. Information which should be available to the court includes general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record....
It is obvious from these and other decisions that the sentencing judge is vested with the authority and burdened with the responsibility to inquire into the various aspects of each defendant’s case before sentence is pronounced, (citations omitted).

Courts have recognized that the broad range of evidence that may be considered at sentencing even includes inquiry into “uncharged conduct or even conduct that was acquitted.” See U.S. v. Schaefer, 291 F.3d 932, 944 (7thCir.2002). Thus, Arabie’s claim that the trial court erred in imposing his sentence when it made a brief reference to other similar charges then pending against him also lacks merit.

[¶ 22.] Affirmed.

[¶ 23.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . If the brief does not contain a Section B, counsel may avoid the requirement of a signature by the client by substituting counsel's statement that, "counsel contacted the client, gave the client reasonable opportunity to identify a claim or claims of error, and that the client did not identify any claim of error for inclusion in the brief.” Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 535-36 (quoting Oregon Rule of Appellate Procedure 5.90(l)(a)(iii)).


author: MEIERHENRY, Justice. SABERS, Justice

text:
    2003 SD 58
    STATE of South Dakota, Plaintiff and Appellee, v. David Lee BOUSUM, Defendant and Appellant.
    No. 22249.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 10, 2003.
    Decided May 21, 2003.

      Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and Appellee.
    Joseph M. Kosel, Lawrence County Public Defender’s Office, Deadwood, South Dakota, Attorneys for defendant and Appellant.
   MEIERHENRY, Justice.

[¶ 1.] David Lee Bousum appeals his convictions for one count of first degree intentional damage to property and one count of resisting arrest. We affirm.

FACTS

[¶2.] On September 4, 2001, Bousum and his girlfriend got into an argument in a bar located on Main Street in Lead, South Dakota. Bousum slapped his girlfriend during the argument and law enforcement was called to the scene. Three officers eventually arrived including a Deadwood police officer summoned to provide assistance. As a result of their investigation, the officers arrested Bousum for simple assault and domestic violence and handcuffed him.

[¶ 3.] Bousum became very agitated over his arrest and a struggle ensued. Ultimately, the officers forced Bousum into the Deadwood officer’s patrol car on the passenger side of the back seat. As one of the officers closed the door and began to turn away from the vehicle, he heard a loud thumping coming from the passenger window. Turning back toward the vehicle, he saw Bousum kicking at the passenger window with both of his feet. As the officer reached out to open the door, Bou-sum kicked again and the passenger window exploded in the officer’s face. The officer sustained a cut in the forehead and a significant cut in his upper lip. While the officer tended to his injuries, the other officers were able to restrain Bousum and to transport him to jail.

[¶ 4.] Bousum was indicted on September 6, 2001 for one count each of aggravated assault, first degree intentional damage to property, simple assault and resisting arrest. Bousum’s jury trial was on November 28. At the close of trial, the jury returned guilty verdicts on the intentional damage to property and resisting arrest charges and not guilty verdicts on the charges of aggravated and simple assault. Bousum was sentenced to ten years in the penitentiary, with six suspended, on the intentional damage to property conviction and to a concurrent one year sentence in the county jail for resisting arrest. He appeals.

[¶ 5.] On April 8, 2002, Bousum’s counsel filed a motion with this Court to withdraw from his representation in this appeal based upon the lack of any non-frivolous issues for appeal. This Court denied the motion and directed counsel to brief this matter in conformity with State v. Korth, 2002 SD 101, 650 N.W.2d 528.

COMPLIANCE WITH KORTH

[¶ 6.] Korth requires that certain items be included in Section A of a brief filed pursuant to the procedures established in that case: a statement of the case and facts encompassing those facts sufficient to present any claim or claims of error asserted by the client in Section B of the brief; a description of any significant motions filed in the case and the trial court’s disposition of the motions; a statement that the case is being submitted pursuant to Korth and that counsel has thoroughly reviewed the record and discussed the case with trial counsel and the client; a statement that counsel has not identified any arguably meritorious issue on appeal; and, counsel’s signature. Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 535-536.

[¶ 7.] Bousum’s brief fulfills some, but not all of these requirements. Specifically, the brief does not contain statements that counsel has thoroughly reviewed the record, that counsel has discussed the case with Bousum, and that counsel has not identified any arguably meritorious issues on appeal.

[¶ 8.] Contributing to some confusion here is counsel’s presentation and briefing of a substantive issue in Section A of his brief. This Court did suggest in Korth that counsel might argue issues of possible merit in Section A. See Korth, 2002 SD 101, ¶ 17, 650 N.W.2d at 536 (Court refers to Balfour procedure of including a “ ‘Section A’ (issues the attorney believes are meritorious)”). Further review of the Oregon procedures in State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991) that this Court adopted in Korth reflects that this suggestion was incorrect. See State v. Arabie, 2003 SD 57, ¶ 11, 663 N.W.2d 250. See also Balfour, 814 P.2d at 1080 (“Section A ... shall contain no assignments of error or argument”).

[¶ 9.] Based upon the foregoing, Section A of Bousum’s brief does not meet the requirements of Korth, nor does Section B of the brief.

Section B of [a] brief [filed under Korth ] shall contain any claim of error requested by the client and shall be signed by the client. Section B shall attempt to state the claim and any argument in support of the claim as nearly as practicable in the manner that the client seeks, in proper appellate brief form.

Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 536 (emphasis added)(quoting Oregon Rule of Appellate Procedure 5.90(1)(b)). Section B of Bousum’s brief is not signed by Bousum. The signature is a necessary part of Section B and counsel is required to obtain it. Id.

[¶ 10.] Normally, failure to comply with the technical requirements of Korth would result in an order by this Court directing counsel to submit an amended brief conforming to Korth. However, our review of the briefs and record in this case reveals that there are “arguably meritorious” issues in this case. Our identification of arguably meritorious issues in a case submitted pursuant to Korth would usually require granting additional time for supplemental briefing on those issues. See Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 535-36 (quoting Oregon Rule of Appellate Procedure 5.90(3)). However, we find that the present briefs are complete and supported by adequate authorities to warrant our consideration of the merits of these issues at this time. Therefore, we decline to order supplemental briefing and proceed to consider the merits of the substantive issues presented.

ISSUE ONE

[¶ 11.] Did the repair of the window in the patrol car before Bousum could obtain his own damage estimate violate his constitutional and statutory rights?

[¶ 12.] The day after Bousum’s arrest, an employee for the City of Deadwood took the damaged patrol car to a local body shop and requested a repair estimate. That same day, without any notice to Bousum or opportunity for anyone to evaluate the damage on his behalf, the repairman was instructed to fix the vehicle. The final repair bill totaled $617.90. This was sufficient damage to convict Bou-sum of felony first degree intentional damage to property. See SDCL 22-34-1.

[¶ 13.] On appeal, Bousum argues that the repair of the patrol car without an opportunity for a defense repairman to evaluate the damages violated his Constitutional rights to due process and a fair trial and statutory provisions governing the preservation of evidence.

[¶ 14.] SDCL 23A-37-14 provides:

Any property, which is not contraband, seized or confiscated by law enforcement personnel, ostensibly for use as evidence in a criminal prosecution, shall be preserved, maintained or stored at the expense of the county where the criminal offense occurred. If the property is not contraband and is owned by a victim of the crime being investigated, the property shall be photographed by the appropriate law enforcement personnel and returned to the victim of the crime within thirty days of completion of forensic analysis unless the prosecuting attorney deems it essential to the prosecution of the case to retain the evidence. The photographs shall accurately and correctly represent the property and are admissible evidence pursuant to chapter 19-18 in any resulting criminal proceeding.

SDCL 23A-37-15 provides:

Before any property is returned to the owner pursuant to § 23A-37-14, the law enforcement personnel in possession of the property shall notify the defendant that the property will be returned to the owner. Upon a motion made by the defendant and upon good cause shown that the property contains exculpatory evidence of the defendant’s innocence, the court may order the law enforcement personnel in possession of the property not to release it to the owner.

[¶ 15.] In applying Constitutional principles to these provisions in State v. Arguello, 502 N.W.2d 548, 550 (S.D.1993), this Court stated:

The State’s violation of SDCL 23A-37-15 “does not automatically vitiate the conviction.” State v. Lyerla, 424 N.W.2d 908, 911 (S.D.1988) (citation omitted). The State’s destruction of evidence favorable to [the defense] is a violation of due process if the evidence requested by [the defense] and destroyed by the State is material either to guilt or punishment. Id. at 910 (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). The state’s duty to preserve evidence is
limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422 (1984) (footnote omitted) (citation omitted) (emphasis added). Additionally, [the defense] must show that the State acted in bad faith in releasing the [evidence], Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289 (1988). (emphasis added).

[¶ 16.] In conformity with the bad faith standard set forth above, this Court has recognized that mere negligence in the loss or destruction of evidence does not result in a constitutional violation. See State v. Pinela, 458 N.W.2d 795, 796 (S.D. 1990). The North Dakota Supreme Court has defined “bad faith” in the context of destroying evidence as follows:

Bad faith, as used in cases involving destroyed evidence or statements, means that the state deliberately destroyed the evidence with the intent to deprive the defense of information; that is, that the evidence was destroyed by, or at the direction of, a state agent who intended to thwart the defense.

State v. Steffes, 500 N.W.2d 608, 613 (N.D.1993)(citing State v. Baldwin, 224 Conn. 347, 618 A.2d 513 (1993)).

[¶ 17.] Based upon the foregoing standards, there is no indication of bad faith in the destruction of any evidence here. The record reflects that Deadwood law enforcement was anxious to get its vehicle repaired to protect the expensive equipment kept inside and because it was one of only four vehicles available for law enforcement duties. Further, there is no indication in the record that the prosecutor was even aware of the premature repair of the vehicle. Thus, the loss or destruction of any evidence resulting from the repair of the vehicle was clearly more negligent than an act of bad faith. See e.g. State v. Schmidt, 5 Neb.App. 653, 562 N.W.2d 859, 870 (1997)(no law enforcement bad faith in the return of evidence consisting of motor vehicle tires to the crime victim where the victim needed the tires and vehicle to travel to a scheduled job interview).

[¶ 18.] In State v. Freeman, 531 N.W.2d 190 (Minn.1995), the Minnesota Supreme Court considered a case where the state used several devices to conduct mechanical testing of the defendant’s car without providing statutorily required notice to the defense. Similar to this case, the defendant contended that the state’s tests irreversibly altered the condition of the car, thereby limiting the ability of his own automotive expert to conduct subsequent tests that might have corroborated his defense. The Minnesota court applied the following standards in its review:

Once a discovery violation has occurred, the trial court is particularly suited to determine the appropriate remedy and has wide discretion in deciding whether to impose sanctions. In exercising its discretion, the court should consider all relevant factors, including the reason why notice was not given and the extent to which the violation prejudiced the opposing party. Absent a clear abuse of discretion, a reviewing court will not overturn the trial court’s decision. Furthermore, although [the defendant] correctly contends that [state] discovery provisions are stricter, in some respects, than their federal counterparts, the preclusion of evidence is a severe sanction that should not be lightly invoked.

Id. at 197-198 (citations omitted)(emphasis added).

[¶ 19.] Here, Bousum did not even seek to preclude or suppress the testimony of the repairman who fixed the patrol car as a sanction for the destruction of evidence. Bousum also failed to object to the repairman’s testimony during trial. Moreover, the State provided Bousum with copies of the repairman’s estimate, his final bill and photographs of the car taken before the repair of the damage. These materials allowed Bousum to cross-examine the repairman, to obtain his own repair estimates and to rebut the repairman’s testimony with testimony from his own repairman. In addition, we note that, as recently approved in State v. Engesser, 2003 SD 47, ¶46, 661 N.W.2d 739, 754-55, Bousum’s counsel used the State’s failure to properly preserve evidence as a factor in argument against the prosecution at trial. In Freeman, swpra, the Minnesota Court held similar factors sufficient to remedy the destruction of evidence in that case. We reach a like conclusion here. Nevertheless, we take this opportunity to admonish the State for its careless handling of evidence and to remind it of its “ ‘duty to zealously protect evidence in its possession.’ ” City of Bismarck v. Holden, 522 N.W.2d 471, 475 (N.D.1994)(emphasis addedXquoting Steffes, 500 N.W.2d at 614, n. 5).

ISSUE TWO

[¶ 20.] • Was the jury required to draw an adverse inference from the State’s destruction of evidence concerning the damage to the patrol car?

[¶ 21.] In an argument closely connected to his first issue, Bousum argues that the jury was required to draw an adverse inference from the State’s destruction of evidence concerning the extent of the damage to the patrol car.

[¶ 22.] Generally, under the “adverse inference rule,” “ ‘if a party has evidence under its control and does not present that evidence, an inference may be drawn that the evidence would not support that party’s claim.’ ” Burke v. Butte County, 2002 SD 17, n. 4, 640 N.W.2d 473, 478 (quoting Wuest ex rel. Carver v. McKennan Hosp., 2000 SD 151, ¶ 10, 619 N.W.2d 682, 686). Bousum did not request a jury instruction on application of the adverse inference rule here and, therefore, this issue is not preserved for appeal. See State v. Hage, 532 N.W.2d 406, 412 (S.D.1995)(failure to propose jury instruction waives issue for appeal). Even if it were, this Court has recently held that an adverse inference instruction is justified for the destruction of evidence only where the destruction was intentional and in bad faith. Engesser, 2003 SD 47 at ¶ 46, 661 N.W.2d at 754-55. Because there is no evidence of bad faith in the destruction of any evidence in this case, no adverse inference instruction was warranted. Id.

ISSUE THREE

[¶ 23.] Is the evidence sufficient to sustain Bousum’s convictions?

[¶ 24.] Bousum argues that the evidence is insufficient in several respects to sustain his convictions.

“In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” In making that determination, we “accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.” Moreover, “the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Therefore, this Court does not resolve conflicts in the evidence, or 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. Laplante, 2002 SD 95, ¶ 19, 650 N.W.2d 305, 310 (citations omitted).

[¶ 25.] Bousum first argues that the evidence is insufficient to establish the amount of the damage to the patrol car. However, the evidence and testimony presented during trial on the issue of damages has been previously discussed in this decision. Although Bousum argues over the “mark-up” price of some of the parts used to repair the patrol car, that evidence was also presented to the jury and the jury obviously found sufficient evidence to establish damage to the patrol car exceeding five hundred dollars. This Court does not re-weigh evidence on appeal. Id.

[¶ 26.] Bousum also questions the sufficiency of the evidence to show his intent to commit the crime of intentional damage to property. Intentional damage to property is a general intent crime. State v. Balint, 426 N.W.2d 316, 318 (S.D.1988). “There is no additional mental state required beyond that accompanying the injurious or destructive act.” Id. In Balint, this Court upheld an intentional damage to property conviction where a defendant in a drunken stupor had repeatedly pushed against a plate glass window and broke it. We find even more persuasive evidence of intent here where Bousum repeatedly kicked against the window of the patrol car in an enraged state after struggling with law enforcement to resist arrest.

[¶ 27.] Based upon the foregoing, we hold that Bousum’s claims of insufficient evidence lack merit.

ISSUE FOUR

[¶ 28.] Did the trial court abuse its discretion in denying Bousum’s motion for a mistrial based upon juror bias?

[¶ 29.] During a break in the prosecution’s case at trial, a juror informed the court and counsel outside the presence of the rest of the jury that the evidence had caused him to realize that he actually observed some of the events in Lead on the night of Bousum’s arrest. The juror stated that he drove down Main Street while the police cars were there, that he maneuvered around the cars to get by and that, in that process, he saw “somebody in the back of the police car kicking the window.” The juror further qualified that all he recalled was “just trying to get by the situation and then’ looking over and seeing the feet hit the window.” The juror also stated that he thought he could still be impartial and that he had not shared the information with the other jurors.

[¶ 30.] After the juror was excused from the judge’s chambers, defense counsel objected to the juror continuing in the case and moved for a mistrial. The trial court denied the motion and Bousum now challenges its ruling.

[¶ 31.] This Court reviews the denial of a mistrial motion under the abuse of discretion standard. State v. Anderson, 2000 SD 45, ¶ 36, 608 N.W.2d 644, 655. Trial court’s have considerable discretion in granting or denying a mistrial and to justify the granting of a mistrial, an actual showing of prejudice must exist. Id.

[¶32.] With regard to the issue of juror bias, this Court has recognized that “[j]urors need not be ignorant of the facts and issues. A defendant is only entitled to a fair and impartial jury, not a jury that has absolutely no prior knowledge of the facts of the case.” State v. Owens, 2002 SD 42, ¶ 30, 643 N.W.2d 735, 745. Here, the record establishes that the juror’s limited observations were not related to any facts at issue in the case. There was no dispute that Bousum kicked out the window of the patrol car. Given the absence of any indication of potential bias by the juror over a disputed fact, we find no abuse of discretion in the trial court’s denial of Bousum’s mistrial motion.

[¶ 33.] Affirmed.

n 34.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 35.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 36.] I dissent because 1) the State’s destruction of material evidence prejudiced Defendant and denied him his right to a fair trial and 2) the Court’s adoption and reiteration of a “bad faith” standard on the issue of spoliation is inconsistent with notions of fairness and justice.

[¶ 37.] The only material element at issue in the intentional destruction of property charge against Defendant was the amount of damage to the window frame, if any. The only evidence of this was the vehicle. Without notifying Defendant or his counsel, and with full knowledge that Defendant was being charged with felony destruction of property, the police department had the vehicle repaired, destroying any chance Defendant had to defend himself on this vital element. There is no question that this violated SDCL 23A-37-14 and -15. The photographs, as noted by the majority opinion, did not “accurately and correctly represent the property” in accord with SDCL 23A-37-14 and law enforcement failed to notify the Defendant that the property was to be repaired. SDCL 23A-37-15. The majority opinion must again rely on the bad faith requirement in order to affirm the conviction. This is fundamentally unfair.

[¶ 38.] Allowing the State to rely upon this evidence essentially places the burden on the Defendant to disprove the State’s estimate for repairs without any evidence because the State has destroyed that evidence. This is precisely the type of situation foreseen in Justice Stevens’ concurring opinion in Arizona v. Youngblood and reiterated in my dissent in State v. Engesser. This is the case “in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.” Youngblood, 488 U.S. at 61, 109 S.Ct. at 339, 102 L.Ed.2d at 291 (Stevens, Justice concurring).

[¶ 39.] The majority opinion notes that it cannot find prejudice in this case because the jury was able to weigh the testimony of Defendant’s repair person against that of the individual who actually repaired the car. This assertion bypasses the critical issue: by destroying the evidence before Defendant could get an estimate, the State took the issue of credibility and weight of evidence out of the hands of the jury. How? By creating a situation where only one witness (the State’s repair person) could possibly know the extent of the damage and the need and cost of the repairs. The only thing Defendant could do was attempt to refute that evidence with pictures that failed to accurately depict the damage. What else could the jury do? It would have been unreasonable to accept the Defendant’s witness over the State’s witness because the State’s witness saw the evidence before it was repaired.

[¶ 40.] Perhaps most offensive is that the State was allowed to use Defendant’s inability to examine the evidence against him. In cross-examining the Defendant’s witness on valuation, the State asked the following series of questions:

Mr. Kosel: (Defense Attorney) Your Honor, maybe ... we’d stipulate to the fact that the State had the car fixed before the Defense even had an opportunity to have anyone else look at it.
Court: So stipulated?
State: Yeah, I’ll stipulate to that. So that would make a difference, then, in the estimates, wouldn’t it?
Witness: Yes.
State: You wouldn’t recommend that anybody come into court and give an estimate of damage without actually looking at the vehicle—
Witness: Correct
State: — would you?
Witness: No.
State: Because they might be misled themselves.
Witness: Uh-huh.
State: Okay, so in fairness, in accuracy, if you sir, having 22 years in the business, wanted to give an estimate of the damage, you’d want to see it with your own eyes.
Witness: Yes.
State: Because of the uniqueness of damage to a vehicle.
Witness: Yeah, no accident — No two accidents are the same[.]

To allow the State to intentionally damage the evidence in violation of the statute and allow the State to actually use the Defendant’s lack of access against him is intolerable. The State is benefiting from its own wrong.

[¶ 41.] Due process requires that a criminal defendant have a fair opportunity to defend against the State’s charges. Chambers % Mississippi, 410 U.S. 284, 294, 98 S.Ct. 1038, 1045, 35 L.Ed.2d 297, 308 (1973). See also State v. Lamont, 2001 SD 92, ¶ 16, 631 N.W.2d 603, 608-9(“[w]hen a defendant is denied the ability to respond to the State’s case against him, he is deprived of his fundamental constitutional right to a fair opportunity to present a defense.” (citation omitted)). This Defendant was denied the opportunity and ability to defend against this charge and for that reason, this Court should reverse the conviction for felony intentional destruction of property, and remand for a fair trial with proper instructions on the State’s duty not to destroy evidence. Engesser, 2003 SD 47, 661 N.W.2d 739 (Sabers, Justice, dissenting).

      . Appellate counsel was trial counsel and, therefore, the Korth requirement of discussions with trial counsel was obviously unnecessary.

      . We note that the photographs of the patrol car might have provided Bousum with more assistance in this regard had they more accurately represented the damaged patrol car, including a bent door frame, as was statutorily required. See SDCL 23A-37-14 (property seized as evidence and returned to crime victim must be photographed and photographs must "accurately and correctly” represent the property). Nevertheless, we conclude that the photographs, in conjunction with the defense repair estimates and defense repairman’s testimony, were sufficient to present the jury with an adequate basis on which it could have concluded that the damages to the patrol car were $500 or less and, therefore, insufficient for a conviction for felony intentional damage to property. See SDCL 22-34-1. Thus, we fail to identify any prejudice to Bousum resulting from any statutory violation in the State's poor photography.


author: NEUMAN, Justice.

text:
    Jane KLIEBENSTEIN and Glen Kliebenstein, Appellants, v. IOWA CONFERENCE OF the UNITED METHODIST CHURCH, the United Methodist Church of Shell Rock, Iowa, Jerrold W. Swinton, Rick Kromminga, Karen Wahl, Kay J. Lahr and Karen L. Peterson, Appellees.
    No. 02-0011.
    Supreme Court of Iowa.
    June 11, 2003.

      Thomas C. Verhulst of Gallagher, Lang-las & Gallagher, P.C., Waterloo, for appellants.
    L.R. Voigts and Jodi L. Ahlman of Nye-master, Goode, Voigts, West, Hansell & O’Brien, P.C., Des Moines, for appellees.
   NEUMAN, Justice.

This appeal involves a church-related controversy, an area of discord traditionally considered “off limits” for civil courts. Plaintiff, Jane Kliebenstein, claims she can overcome that jurisdictional hurdle here because church officials’ allegedly defamatory statements about her carried secular overtones and were published to non-members of the church. We agree that she has an actionable, albeit limited, claim that cannot be resolved by way of summary judgment. We therefore reverse the district court’s dismissal and remand for further proceedings.

I. Background Facts and Proceedings.

The controlling facts are not disputed. In March 1999, Jane Kliebenstein and her husband, Glen, were members of Shell Rock United Methodist Church (UMC). Defendant Jerrold Swinton was the UMC district superintendent. Prompted by reports of strife within the congregation, Swinton (who is an ordained minister) visited the Shell Rock church one Sunday morning. He then wrote the letter that is at the heart of this controversy.

Swinton’s letter, which was also signed by the members of the Staff Parish Committee, was mailed not only to members of the congregation but also to other persons living in the Shell Rock community. Portions of the letter pertinent to these proceedings are quoted below:

A few months ago I attended worship in Shell Rock and I rejoiced to see so many young families in church. I was in despair when Jane Kliebenstein made an effort to whisper scornfully to me that this pastor must leave Shell Rock..
Folks, when is enough, enough? When will you stop the blaming, negative and unhappy persons among you from tearing down the spirit of Jesus Christ among you? ... You know whether a person has the spirit of Jesus or Satan by their fruits.... I am distressed and perplexed why people have tolerance and compassion for anyone who habitually tears down the Body of Christ by habitually sowing discord and pain.
When the congregation of Shell Rock is ready to acknowledge they allowed the spirit of Satan to work in their midst, express some contrition and seek help — then help will come....

Swinton’s letter went on to advise that he and the Staff Parish Committee would call a “Church Conference” in accordance with established disciplinary procedures to “propose that Jane Kliebenstein be stripped of church offices. It is understood that if she continues to cause dissension, she will next be asked to leave the Shell Rock UMC.”

The Kliebensteins responded with this suit for defamation. Their petition claimed the letter falsely attacked Jane’s “integrity and moral character,” causing damage to her reputation in the community. Glen sought damages for loss of consortium.

Following discovery, defendants moved for summary judgment. They conceded for purposes of the motion that Swinton’s statement about the “spirit of Satan” referred to Jane Kliebenstein. They argued, however, that the phrase is a “purely ecclesiastical term, deriving its meaning from religious dogma” thereby preventing the court from adjudicating its impact in the' context of a civil suit for defamation. The district court agreed, finding it was constitutionally without jurisdiction to entertain the controversy. This appeal by the Kliebensteins followed.

II. Issue on Appeal/Scope of Review.

Plaintiffs concede that the Free Exercise and Establishment Clauses of our federal and state constitutions preclude civil court interference in the disciplinary and governance matters of a religious entity. They urge this court to find, however, that the defendants “exceeded the protective confines of these clauses when they published their humiliating and disparaging remarks to individuals in the local community who were not members of the church nor allowed to participate in the disciplinary proceedings” brought against Jane. Defendants counter that adjudication of plaintiffs’ claims would necessarily entangle the court in church doctrine, a matter clearly beyond its jurisdiction.

As this case reaches us on appeal from summary judgment proceedings, we are obliged to view the facts in the light most favorable to the parties resisting the motion, the plaintiffs. Marks v. Estate of Hartgerink, 528 N.W.2d 589, 544 (Iowa 1995). Summary judgment is appropriately granted only where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Behr v. Meredith Corp., 414 N.W.2d 339, 341 (Iowa 1987).

III. Analysis.

By its very nature, the controversy before us implicates the Establishment Clauses of the federal and Iowa constitutions. Iowa, like virtually every other jurisdiction, avoids “interfering in purely ecclesiastical matters.” Marks, 528 N.W.2d at 544 (emphasis added).

It is a general rule recognized here and in foreign jurisdictions, that ordinarily the courts have no jurisdiction over, and no concern with, purely ecclesiastical questions and controversies, including membership in a church organization, but they do have jurisdiction as to civil, contract, and property rights which are involved in or arise from a church controversy.

Brown v. Mt. Olive Baptist Church, 255 Iowa 857, 859, 124 N.W.2d 445, 446 (1963).

Plainly Iowa’s courts could not entertain this case if it involved solely the discipline or excommunication of Jane Kliebenstein. Marks, 528 N.W.2d at 545. “[C]ivil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 96 S.Ct. 2372, 2382, 49 L.Ed.2d 151, 165 (1976); accord Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468, 471 (8th Cir.1993). Nor would her claim enjoy viability had the matter been divulged solely to the members of Shell Rock UMC. It is the general rule that

the common interest of members of religious associations is such as to afford the protection of qualified privilege to communications between them in furtherance of their common purpose or interest. Thus, communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged.

50 Am.Jur.2d Libel and Slander § 340, at 663 (1995); see Marks, 528 N.W.2d at 546 (applying qualified privilege to statements made in context of church disciplinary proceedings).

The fact that Swinton’s communication about Jane was published outside the congregation weakens this ecclesiastical shield. First, otherwise privileged communications may be lost upon proof of excess publication or publication “beyond the group interest.” Brewer v. Second Baptist Church of Los Angeles, 32 Cal.2d 791, 197 P.2d 713, 717 (1948) (citation omitted); accord Marks, 528 N.W.2d at 546. Second, if publication solely to church members justifies ecclesiastical status for otherwise defamatory communications, proof of publication to •raow.-church members arguably supports the opposite conclusion. See Schoenhals v. Mains, 504 N.W.2d 233, 236 (Minn.Ct.App.1993) (proof that alleged defamatory letter sent only to church members strengthened First Amendment claim precluding adjudication of “internal conflict within the Church”).

Defendants counter that publication to no%-church members is irrelevant here. Their defense rests on the general rule that “[djefamation actions are precluded by the First Amendment when an examination of the truth of the allegedly defamatory statements would require an impermissible inquiry into church doctrine and discipline.” 50 Am.Jur.2d Libel and Slander § 117, at 420 (1995). Defendants contend that in order to determine whether the term “spirit of Satan” is defamatory— or truthful — as applied to Kliebenstein, a factfinder would necessarily be required to study and interpret church theology and beliefs concerning Satan. The contention brings us to the dispositive question on appeal: whether the phrase “spirit of Satan” has a secular meaning that could be applied in a civil suit for defamation without treading on — or wading into — religious doctrine.

Defendants rely heavily on an affidavit prepared by Rev. Dr. Elmer Colyer, professor of historical theology and Wesley studies at the University of Dubuque Theological Seminary. Professor Colyer asserts that terms such as “Satan” and “devil” have their roots in religious doctrine. His affidavit also reveals that these terms have evolved and now imply a variety of meanings between — and even within — religious denominations. Thus, in his words, “to determine within any specific ecclesiastical context whether the use of the term, ‘spirit of Satan,’ is defamatory ... it is necessary to determine the meaning of the term for the religious community or body.” (Emphasis added.)

The weakness in defendants’ reliance on this expert opinion is that publication of the letter was not limited to a “religious community or body.” Given the nature of plaintiffs’ claims, the proper focus of our inquiry is not on the meaning of “spirit of Satan” within an ecclesiastical context but to determine whether the phrase has a secular meaning. In other words, could a fact finder determine whether Kliebenstein was defamed without resort to theological reflection?

Perusing a standard dictionary convinces us that the term used by church officials to describe Jane Kliebenstein may have religious roots but also carries a common, and largely unflattering, secular meaning. “Satan” is defined as “the great enemy of man and of goodness; the Devil: usually identified with Lucifer, the chief of the fallen angels.” Webster’s New World Dictionary 1192 (3d ed.1994). Definitions of “satanic” and “satanism” include “characterized by extreme cruelty or viciousness” and “innate wickedness.” Webster’s Ninth New Collegiate Dictionary 1044 (1986). “Devil” has many dictionary meanings, including “an extremely wicked person: FIEND,” id. at 347, and “a person who is energetic, mischievous, daring, or clever,” American Heritage Dictionary 389 (2d ed.1985). The word “spirit” is defined as “an animating or vital principle held to give life to physical organisms” or, more simply, as “an inclination, impulse, or tendency of a specified kind: MOOD.” Webster’s Ninth New Collegiate Dictionary 1137 (1986).

We conclude from these definitions that the phrase “spirit of Satan” has meaning in a secular, as well as sectarian, context. Our conclusion is fortified by considering other cases in which associating a party with Satan has become an issue. In State v. Tate, 341 N.W.2d 63, 64-65 (Iowa Ct. App.1983), our court of appeals held a defendant charged with third-degree theft was denied a fair trial when the court refused his request to explain the contents of a book found in his possession upon his arrest, Satan is Alive and Well on Planet Earth. Based on the book’s title and testimony by a police officer, the court concluded a jury could have believed the defendant was a “Satan worshipper,” a fact “highly prejudicial to his case.” Id. at 65. No sectarian discussion of religious dogma was needed for the court to determine that “[t]he prejudice to the defendant should have been obvious to the prosecutor.” Id.; see also Johnston v. Luebbers, 288 F.3d 1048, 1061 (8th Cir.2002) (describing prosecutor’s description of defendant as Satan “improper” and “inflammatory”).

When similar accusations of being “in league with Satan” are made in the context of a church meeting called to determine whether a member should be “disfel-lowed,” a court of appeals has affirmed the dismissal of a defamation claim against the church. Howard v. Covenant Apostolic Church, Inc., 124 Ohio App.3d 24, 705 N.E.2d 385, 388-89 (1997). But where accusations of associating with “one of Satan’s choicest tools” were lodged against a church member in a national newspaper covering the affairs of the church, the California Supreme Court held the statements were actionable where exaggerated and, therefore, unprivileged. Brewer, 197 P.2d at 716-17.

Because we are convinced that the phrase “spirit of Satan” has a secular, as well as sectarian, meaning, and because the accusatory phrase was used by defendants to describe Jane Kliebenstein in a communication published to more than just church members, we hold plaintiffs’ claim of defamation should not have been summarily dismissed by the district court on constitutional grounds. We therefore reverse and remand for further proceedings.

REVERSED AND REMANDED.


author: CARTER, Justice.

text:
    Jerry LOWERS, Donna Lowers, Donald Jensen, Marcella Jensen, Darell Kilworth, Viola Kilworth, Gene Leslie, and Martha Leslie, For Themselves and All Others Similarly Situated, Plaintiffs, v. The UNITED STATES of America, Defendant.
    No. 02-0294.
    Supreme Court of Iowa.
    June 11, 2003.

      Cecilia Fex and Neis Ackerson, The Ackerson Group, Chartered, Washington, D.C., and Kevin M. Reynolds of Whitfield & Eddy, P.L.C., Des Moines, for plaintiffs.
    David W. Spohr, William B. Lazarus, and Elizabeth Ann Peterson, Washington, D.C., and Thomas L. Sansonetti, Assistant United States Attorney General, and Gary L. Hayward, Assistant United States Attorney, for defendant.
    Christina L. Gruenhagen, West Des Moines, for amicus curiae Iowa Farm Bureau Federation.
    A.W. Tauke of Porter, Tauke & Ebke, Council Bluffs, Andrea C. Ferster, Washington, D.C., and Danaya Wright, University of Florida College of Law, Gainesville, FL, for amici curiae Rails to Trails Conservancy and Iowa Nature Heritage Foundation, Inc.
    David T.M. Powell of Lathrop & Gage, L.C., Kansas City, MO, and Thomas M. Cunningham of Pingel & Templer, P.C., West Des Moines, for amici curiae Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company.
   CARTER, Justice.

The United States District Court for the Southern District of Iowa has certified four questions of law to be answered by this court as provided in Iowa Code sections 684Á.1 and 684A.3 (2001) and Iowa Rule of Appellate Procedure 6.451. These questions involve the application of Iowa law in a pending federal class action in which the claimants assert a right to compensation for the taking of their property interests. All of the certified questions relate to the interests existing under a deed the language of which is included in the federal court’s certified question order.

The four certified questions are as follows:

(1) Is the deed cited above [in the federal court’s certified question order] a defeasible fee or an easement?
(2) Did the Stale Uses and Reversions Act (SURA), Iowa Code § 614.24, operate to vest fee simple absolute ownership to the railroad company in 1966?
(3) What effect does the 1980 amendment to SURA have on this case in light of the fact that abandonment is not alleged to have occurred until 1995, and the action was not commenced until 1998?
(4) What effect does the holding in Frideres v. Schiltz, 540 N.W.2d 261 (Iowa 1995), have on this case?

In answering the questions submitted, we conclude that the property interest conveyed to the railroad company by the deed set forth in the certified question order was a defeasible fee. The holders of the reversionary interests created by that deed were forever precluded from asserting those interests in 1966 as a result of the Stale Uses and Reversions Act (SURA), Iowa Code § 614.24. Under Iowa law, the legal effect of that bar was to extinguish the inchoate property interests barred under SURA and vest fee simple absolute ownership in the railroad company in 1966. The 1980 amendment to SURA did not operate to revive the rever-sionary interests, which were extinguished by SURA in 1966. This court’s holding in Frideres v. Schiltz, 540 N.W.2d 261 (Iowa 1995), is consistent with and reinforces our conclusion that the 1980 amendment did not operate to revive those reversionary interests. We separately analyze the legal issues presented by each of the certified questions.

I. Whether the Deed Created a Defea-sible Fee or an Easement.

The factual foundation for the first certified question is a deed, recorded more than twenty years prior to July 4, 1965, which contained the following language:

Rt. of Way Deed

[The grantors] grant and convey unto said Railroad Company, the following piece or tract of land in Cass County, in the- State of Iowa, and particularly described as follows to wit: [section coordinates] One hundred feet in width, having fifty feet on each side of the center line of line of the Road of said Company, as located by the engineer of said Railroad Company for the construction of said Railroad in said Cass County; To Have and Hold the same unto said Railroad Company forever; Provided that in case said Railroad Company does not construct their road through said tract, or shall, after construction, permanently abandon the route through said tract of land the same shall revert to, and become the property of the grantors, their heirs or assigns. And the said [grantor] hereby relinquishes her right of dower in the tract herein conveyed.

The federal class-action plaintiffs urge that the deed only granted an easement to the railroad company. They base that conclusion on cases such as Atkin v. Westfall, 246 Iowa 822, 826, 69 N.W.2d 523, 525 (1955), and Keokuk County v. Reinier, 227 Iowa 499, 503, 288 N.W. 676, 678 (1939), in which this court concluded that a deed which specifies that the conveyance is for uses connected with construction and operation of a railroad conveys an easement rather than a fee. We are inclined to reexamine the logic underlying those conclusions. Determining the nature of the interest conveyed by reference to the intended use by the grantee seems frivolous in matters involving narrow tracts of land acquired by railroad companies. There is but one single reason for all such conveyances irrespective of whether the deed conveys a fee or an easement. As we stated in Turner v. Unknown Claimants of Land, 207 N.W.2d 544, 546 (Iowa 1973), “[ojrdinarily the parties know the tract will be used for a railway; for what other purpose would a railroad purchase a strip of land across a farm.”

We are satisfied that the reference in the deed to the use of the property for railroad purposes does not diminish the conveyance of all right, title, and interest of the grantor. See Iowa Code § 557.3 (conveyance passes all of the grantor’s interests unless a contrary intent may be inferred from language used). Nor does the fact that the deed bore a caption or title indicating “Rt. of Way Deed” serve to limit the interest conveyed in the body of the deed. See Robert’s River Rides, Inc. v. Steamboat Dev. Corp., 520 N.W.2d 294, 300 (Iowa 1994) (instrument denominated as “lease” in title construed to be mere license).

The federal class-action plaintiffs also rely on a line of cases that hold that a conveyance for right of way is presumed to grant only an easement. These cases include Brugman v. Bloomer, 234 Iowa 813, 816, 13 N.W.2d 313, 314 (1944); Chicago & Northwestern Railway v. Sioux City Stockyards Co., 176 Iowa 659, 668, 158 N.W. 769, 772 (1916); and Brown v. Young, 69 Iowa 625, 626, 29 N.W. 941, 941 (1886). To prevail under that fine of cases, however, there must be some reference to right-of-way in the language defining the interest being conveyed.

In McKinley v. Waterloo Railroad, 368 N.W.2d 131 (1985), we concluded that, because the deed in that case made no reference to right-of-way in either the granting clause or the habendum clause, it conveyed a fee interest subject to an executo-ry limitation. McKinley, 368 N.W.2d at 138. We described a similar situation as follows in Des Moines City Railway v. City of Des Moines, 183 Iowa 1261, 159 N.W. 450 (1916):

The conveyances under which [the railway company] occupies and exercises dominion over the 20-foot strip do not limit their legal effect to a right of way only. No mention of a right of way, either in terms or by words of necessarily equivalent meaning, is to be found in any of the deeds. In each, the owners of the tract convey, sell and quitclaim to the grantee all their right, title, and interest in the land, and not merely in the right of way.... This is none the less true because each deed embodied a statement that the land is to be used for the construction and operation of a street railway, and provides that if, in the future, it shall be abandoned for that purpose, it shall revert to the grant- or.... [I]t remains true that an estate so conveyed is, nevertheless, a fee; and the grantee thereof is the owner, so long as the estate continues, and until the reverter takes place.

Des Moines City Ry., 183 Iowa at 1266-67, 159 N.W. at 452-53.

Our examination of the granting clause in the deed involved in the present case discloses that it grants a specified tract of land without limitation or qualification. The language in the granting clause, which states “as located by the engineer of said Railroad Company for the construction of said Railroad,” does not limit the property conveyed but merely incorporates by reference the engineer’s construction notes as a means of describing the property conveyed. Nor does the habendum clause state any limitation on the interest conveyed. It provides that the railroad company shall “Have and Hold the same ... forever.” We are convinced that the deed conveyed a defeasible fee to the railroad company.

II. Whether the Stale Uses and Reversions Act Operated to Vest Fee Simple Absolute Ownership in the Railroad in 1966.

As pertaining the second certified question, Iowa Code § 614.24, as existing on July 4, 1966, provided in relevant part:

No action based upon any claim arising or existing by reason of the provisions of any deed or conveyance ... providing for any reversion, reverted interests or use restrictions in and to the land therein described shall be maintained either at law or in equity in any court to recover real estate in this state or to recover or establish any interest therein or claim thereto, legal or equitable, against the holder of the record title to such real estate in possession after twenty-one years from the recording of such deed of conveyance ... unless the claimant shall, by himself, or by his attorney or agent, ... file a verified claim with the recorder of the county wherein said real estate is located within said twenty-one year period. In the event said deed was recorded ... more than twenty years prior to July 4, 1965, then said claim may be filed on or before one year after July 4,1965....

We have previously considered the effect of this statute on reversionary interests contained in deeds conditioned on a continuing use for railway purposes. We have held in such cases that such rever-sionary interests created by deeds that were recorded more than twenty years prior to July 4, 1966, were extinguished if not asserted by verified claims filed with the county recorder on or before July 4, 1966. McKinley, 368 N.W.2d at 138; Chicago & N.W. Ry. v. City of Osage, 176 N.W.2d 788, 791-92 (Iowa 1970). The deed at issue in the present case was recorded more than twenty years prior to July 4, 1965. Consequently, because the holders of the reversionary interests on which plaintiffs’ federal class action is based have failed to file the necessary verified claims within the time provided by section 614.24, those reversionary interests are barred from being asserted. Under Iowa law, the bar to asserting such rever-sionary interests is synonymous with the extinguishment of the inchoate property interests, which may no longer be asserted. McKinley, 368 N.W.2d at 138; City of Osage, 176 N.W.2d at 793. Consequently, the answer to the second certified question is yes. Section 614.24 operated to vest fee simple absolute ownership in the railroad company in 1966.

III. The Effect of the 1980 Amendment to SURA.

The federal class-action plaintiffs assert that, even though the provisions of section 614.24 in existence on July 4, 1966, would bar their reversionary interests from now being asserted, that circumstance was changed retroactively by a 1980 amendment to that statute. The language of that amendment was as follows:

The provisions of this section [§ 614.24] requiring the filing of a verified claim shall not apply to the reversion of railroad property if the reversion is caused by the property being abandoned for railway purposes and the abandonment occurs after [July 1, 1980], The holder of such a reversionary interest may bring an action based upon the interest regardless of whether a verified claim has been filed under this section at any time after July 4,1965.

1980 Iowa Acts ch. 1115, § 6. The class-action plaintiffs assert that this amendment abrogated the application of section 614.24 with regard to reversionary interests in railroad property triggered by railroad abandonments occurring after July 1, 1980. In the pending federal class-action litigation, it is alleged that the abandonment occurred in 1995.

We believe that it was the intent of this legislation that persons holding reversion-ary interests in railway property that were not barred on the date the amendment became effective were no longer required to file a verified claim with the county recorder in order to thereafter assert their interest in a legal action. It was not intended to revive property interests previously extinguished by SURA prior to the effective date of the amendment.

To interpret the 1980 amendment as reviving inchoate property interests that had been extinguished under the 1965 version of section 614.24 would have the disquieting effect of disturbing real estate ownership established more than thirty years ago. It was clearly the intent of the 1965 legislation to include interests of the type involved in the present case when the law was enacted in 1965. See City of Osage, 176 N.W.2d at 791-92. For the reasons that we identified in our answer to the second certified question, the effect of the 1965 legislation was to extinguish the inchoate property interests now sought to be asserted by the federal class-action plaintiffs.

Our interpretation of the 1980 amendment to section 614.24 is consistent with our decisions in Frideres, 540 N.W.2d at 267 (Iowa 1995); In re Estate of Weidman, 476 N.W.2d 357, 364 (Iowa 1991); and Secrest v. Galloway Co., 239 Iowa 168, 172, 30 N.W.2d 793, 796 (1948). Typical of our holdings in, those cases is the following statement from the Weidman case;

A general rule with respect to statutes of limitations is that the period of limitation in effect at the time suit is brought governs in an action even though it may lengthen or shorten an earlier period of limitation.... However, another general rule ... is that if plaintiffs suit was barred by the running of the statute of limitations prior to the extension of the limitation period, the subsequent statute cannot revive defendant’s liability.

Weidman, 476 N.W.2d at 363-64 (emphasis added). The answer to the third certified question , is that the 1980 amendment to SURA did not operate to. revive the reversionary interests at issue here.

IV. What Effect Does the Holding in Frideres v. Schütz Have on the Pending Federal Class Litigation?

In response to the federal court’s inquiry concerning the effect of Frideres v. Schiltz, 540 N.W.2d 261 (Iowa 1995), on the pending federal litigation, we conclude that the holding of that case is consistent with and supports the conclusion we have reached in answering the third certified question.

A copy of this opinion under seal of the court shall be transmitted to the certifying federal court. See Iowa Code § 684A.7.

CERTIFIED QUESTIONS ANSWERED.