author: PETERSON, Judge

text:
    In re the Marriage of Linda Sue BRAZINSKY, Respondent, v. Scott John BRAZINSKY, Appellant.
    No. C0-99-1954.
    Court of Appeals of Minnesota.
    May 30, 2000.

      Linda Sue Brazinsky, Coon Rapids, pro se respondent.
    Daniel M. Fiskum, Olson, Usset & Wein-garden, P.L.L.P., Minneapolis, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, PETERSON, Judge, and FOLEY, Judge.

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

   OPINION

PETERSON, Judge

This appeal is from two orders issued by a child support magistrate. The first order denied respondent mother’s motion to modify child support and dismissed with prejudice appellant father’s motion for reimbursement of child support overpay-ments. After the magistrate issued the first order, mother filed a motion for review. Father argued that the motion for review should be dismissed because it was not properly served. The child support magistrate did not determine whether the motion should be dismissed for improper service. Instead, the magistrate determined that she had jurisdiction, on her own motion, to amend a clerical error in the first order and issued a second order, which modified child support. Father argues on appeal that (1) in the second order, the child support magistrate improperly used her authority to correct clerical errors to make a substantive amendment to the first order and (2) in the first order, the child support magistrate erred by dismissing with prejudice his motion for reimbursement of child support overpayments. We vacate the second order and reverse in part and remand the first order.

FACTS

The marriage of appellant-father Scott John Brazinsky and respondent-mother Linda Sue Brazinsky was dissolved in 1996. The parties were awarded joint legal custody of their minor child and mother was awarded sole physical custody. Father’s monthly child support obligation was set at $461.75, plus 29.3% of mother’s education-related and work-related daycare costs. Mother was required to maintain health and dental insurance for the child through her employer, and the parties were required to equally divide the child’s unreimbursed medical, hospitalization, dental, optical, orthodontic and copayment expenses. Mother was also permitted to claim the income tax dependency exemption for the child.

In May 1999, mother moved to modify the judgment provision that required her to provide and pay for the child’s medical and dental insurance because the cost of the insurance had risen. Father filed a counter-motion requesting, among other things, that mother be required to disclose and document all work-related and education-related daycare costs incurred by mother and to reimburse father $1,836 for work-related daycare expenses that father had paid based on mother’s allegedly misleading statements.

Following a hearing, the child support magistrate found that the cost of the child’s medical and dental insurance had risen from $54.00 per month to $87.50 per month. Based on this finding, the magistrate concluded in a July 9, 1999, order that mother failed to demonstrate a substantial change in circumstances that rendered the current apportionment of insurance costs unreasonable and unfair pursuant to Minn.Stat. § 518.64, subd. 2(a)(5) (1998),' and denied mother’s motion. The magistrate also dismissed with prejudice father’s motion to compel mother to disclose her work-related child care costs and to reimburse father for $1,836 in work-related child care payments made by father.

Mother filed a motion for review of the July 9 order, arguing in part that the child support magistrate incorrectly found that mother’s cost for the child’s medical and dental insurance coverage was $87.50 per month, when it was actually $87.50 per pay period, which was $175.00 per month. Father argued that mother’s motion should be dismissed because she improperly served the motion on him, rather than on his attorney, in violation of Minn. R. Gen. Pract. 355.01, subd. 3.

The child support magistrate did not determine whether mother had improperly served the motion for review. Instead, in a September 17, 1999, order, the magistrate stated:

Even if [mother’s] motion was improperly served on [father] and not his attorney, the Child Support Magistrate, on her own motion, has jurisdiction to amend a clerical error pursuant to the Interim Expedited Child Support Process Rules 21.01, subd. I.

The magistrate found that the July 9 order incorrectly stated that mother’s cost for the child’s medical and dental care was $87.50 per month, when the cost was $87.50 per pay period, which equaled $175.00 per month. Based on this finding, the magistrate found that mother had demonstrated a substantial change of circumstances that rendered the current child support order unreasonable and unfair and modified the original child support provision to require each party to pay $87.50 per month for the child’s medical and dental insurance.

ISSUES

1. Did the child support magistrate properly use her authority under Minn. R. Gen. Pract. 371.01, subdivision 1, to correct a clerical error in the first order?

2. Did the child support magistrate err by dismissing with prejudice father’s motion for reimbursement of childcare over-payments?

ANALYSIS

Standard of Review

The Interim Expedited Child Support Process Rules

govern the procedure for all proceedings conducted in the expedited child support process, regardless of whether the presiding officer is a child support magistrate, family court referee, or district court judge.

Minn. R. Gen. Pract. 351.01. As the presiding officer in an expedited child support process proceeding, a child support magistrate has authority to establish, modify, and enforce child support. See id. 351.03, subd. 1 (proceedings to establish, modify, and enforce child support in IV-D case must be conducted in expedited child support process), 360.02 (child support magistrates have powers and duties necessary to perform their role in expedited child support process). The authority of a child support magistrate with respect to establishing, modifying, and enforcing child support in the expedited child support process is comparable to the authority of a district court judge to establish, modify, and enforce child support in a proceeding conr ducted outside the expedited child support process. Therefore, when reviewing a child support magistrate’s order in an expedited child support process proceeding, we will apply the same- standard of review that we would apply to the order if it had been issued by a district court judge in a proceeding conducted outside the expedited child support process.

A reviewing court is not bound by and need not defer to a district court’s decision on a legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Questions of civil procedure are issues of law upon which this court owes no deference to the district court’s decision. Carter v. Anderson, 554 N.W.2d 110, 112 (Minn.App.1996), review denied (Minn. Dec. 23,1996).

1. Clerical Error

Father argues that the magistrate committed a legal error when, under the guise of correcting a clerical error, she made significant new findings of fact and conclusions of law and reversed the July 9 order. Father contends that the erroneous finding that insurance for the child cost $87.50 per month was not a clerical error within the scope of Minn. R. Gen. Pract. 371.01, subd. 1. We agree.

Rule 371.01, subdivision 1, provides:

, Clerical mistakes, typographical errors, and errors in mathematical calculations in orders, judgments, or other parts of the record arising from oversight or omission may be corrected by the child support magistrate at any time upon the magistrate’s own initiative or upon motion of any party after notice to all parties.

There is no caselaw interpreting this rule. However, the language of the rule is similar to Minn. R. Civ. P. 60.01, which provides:

Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time upon its own initiative or on the motion of any party and after such notice, if any, as the court orders.

For purposes of Minn. R. Civ. P. 60.01, the Minnesota Supreme Court has described a “clerical mistake” as follows:

Such a mistake ordinarily is apparent upon the face of the record and capable of being' corrected by reference to the record only. It is usually a mistake in the clerical work of transcribing the particular record. It is usually one of form. It may be made by a clerk, by counsel, or by the court. A clerical error in reférence to an order for judgment or judgment, as regards correction, includes one made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion.

Wilson v. City of Fergus Falls, 181 Minn. 329, 332, 232 N.W. 322, 323 (1930); see also Gould v. Johnson, 379 N.W.2d 643, 646-47 (Minn.App.1986) (applying Wilson definition in construing Minn. R. Civ. P. 60.01), review denied (Minn. Mar. 14, 1986).

In Wilson, the supreme court concluded that a trial court could not correct an error upon its own motion if the error was judicial, not clerical. 181 Minn, at 332, 232 N.W. at 324. Also, in Gould, this court explained that “[a] distinction must be made between a ‘clerical mistake’ under rule 60.01 and a ‘mistake’ under rule 60.02.” 379 N.W.2d at 646. This court then looked to commentary regarding Fed. R.Civ.P. 60(a), the federal counterpart to rule 60.01, to further explain:

[Fed.R.Civ.P. 60(a) ] deals solely with the correction of errors that properly may be described as clerical or as arising from oversight or omission. Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b). Thus a motion under Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what originally was pronounced.

Id. at 646-47 (alteration in original) (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2854 (1st ed.1973)). This court concluded that because the alleged clerical error was not apparent upon the face of the record, the error was not clerical in nature and, therefore, relief was not available under rule 60.01. Id. at 647.

In Denike v. Western Nat'l Mut. Ins. Co., 473 N.W.2d 370, 372 (Minn.App.1991), this court applied the reasoning in Gould and concluded that because rule 60.01 cannot be used to state something other than what was originally pronounced, the rule could not be used to vacate a prior judgment and enter a new judgment that changed the prevailing party in an action.

The child support magistrate’s error in determining the monthly cost of insurance for the child was not a clerical error, and, therefore, Minn. R. Gen. Pract. 371.01, subd. 1, could not be used to amend the July 9 order on the magistrate’s own motion. The mistake was not apparent upon the face of the record and it was not capable of being corrected by referring to the record only.

The record contained mother’s affidavit, in which she stated that she pays $175 per month for medical and dental insurance coverage for the child. The record also contained one of mother’s pay stubs, which indicated that $163 was deducted from mother’s wages for a semimonthly pay period to pay for medical and dental insurance. This semimonthly deduction would result in a $326 monthly insurance deduction. The pay stub does not attribute any portion of the insurance deduction to insurance for the child. But the record contained a statement from mother’s employer that indicated the deduction was for insurance for mother and the child.

Looking only at this record, it is not apparent that the child support magistrate erred by finding that the cost of insurance for the child was $87.50 per month. Although mother stated in her affidavit that the cost of insurance was $175 per month, the magistrate was not required to accept this statement. Super Valu Stores, Inc. v. Commissioner of Taxation, 291 Minn. 169, 176, 190 N.W.2d 67, 71 (1971) (“evidence, though not directly contradicted, can be disregarded or discounted by the trier of fact where it is inconsistent with facts or circumstances in evidence”). Other evidence in the record indicated that the monthly cost for insurance for both mother and the child was $326, and there is no reason apparent in the record why more than half of this total cost should be attributed to the child. On this record, the magistrate’s finding that insurance for the child cost $87.50 per month could have been based on a determination that mother overstated the portion of the total insurance cost attributable to insurance for the child. Such a determination would necessarily be based on a judicial evaluation of the evidence and is not a clerical error.

Another possible explanation for the magistrate’s error is that the magistrate understood the statement in mother’s affidavit to mean that the monthly cost of insurance for both mother and the child is $175 and attributed one half of this amount to the child. However, there is nothing in either the July 9 or the September 17 order that suggests that this was the basis for the magistrate’s finding. And even if this were the explanation for the error, it still would not be a' clerical error, but an error based on a misunderstanding of the evidence.

Finally, rule 371.01, subd. 1, cannot be used in the way it was used by the magistrate because the correction the magistrate made changed the prevailing party with respect to wife’s initial motion. Following the correction, the magistrate’s. order said something completely different from the original order.

Dismissal With Prejudice

Father argues that because he voluntarily withdrew his motion for reimbursement of child support before mother responded to the motion, the magistrate erred by dismissing the motion with prejudice. Father contends that dismissal with prejudice precludes him from seeking reimbursement under Minn.Stat. § 518.642 (1998).

This court reviews a district court’s decision to dismiss a claim with prejudice under an abuse of discretion standard. Scherer v. Hanson, 270 N.W.2d 23, 24 (Minn.1978).

Under Minn. R. Civ. P. 41.01(a)(1), a plaintiff may voluntarily dismiss an action “by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever occurs first.” Such a dismissal, unless otherwise stated in the notice of dismissal, is without prejudice. Id. 41.01(a). Here, the record does not contain the notice of dismissal that would be required if Minn. R. Civ. P. 41.01 applied. But the magistrate stated in her findings of fact' that, at the contested hearing, father “withdrew all motions relating to [mother’s] work-related child care costs and reimbursement by [mother] for alleged overpayments.” Consequently, it was evident to the parties and to the magistrate that father was no longer pursuing his motion for reimbursement. Nevertheless, the magistrate dismissed father’s motion regarding the overpayments with prejudice.

A dismissal with prejudice is a final judgment that ends the case and leaves nothing further to be resolved between the parties. Foothills Meadow v. Myers, 832 P.2d 1097, 1098 (Colo.Ct.App.1992). After a judgment of dismissal with prejudice is entered, the district court has no jurisdiction over the subject matter of the case and is powerless to act further in the matter. Elwess v. Elwess, 73 N.M. 400, 389 P.2d 7, 9 (1964).

Because a legal justification for the dismissal with prejudice of father’s motion is not apparent, and the magistrate did not provide any explanation why the motion was dismissed after it was withdrawn, the magistrate abused her discretion by dismissing the motion with prejudice.

DECISION

Because the second order made a substantive amendment to the first order rather than correcting a clerical error, it was beyond the scope of Minn. R. Gen. Pract. 371.01, subd. 1, and it was unauthorized. Because the child support magistrate abused her discretion by dismissing with prejudice father’s motion for reimbursement after he withdrew the motion, we reverse that portion of the first order, Because the child support magistrate did not determine whether mother’s motion for review was properly served, we remand for further consideration.

Vacated in part, reversed in part, and remanded.

      . The Interim Expedited Child Support Process Rules, which were adopted as a separate set of rules by order of the Minnesota Supreme Court dated June 23, 1999, applied to this proceeding when it was before the child support magistrate. Those rules were relocated to rules 351 to 375 of the General Rules of Practice for the District Courts, by order of the Minnesota Supreme Court dated December 17, 1999.

      . The rule referred to by the child support magistrate is now Minn. R. Gen. Pract. 371.01, subd. 1.

      . Minn. R. Gen. Pract. 371.01, subd. 1, permits the magistrate to correct errors in mathematical calculations at any time upon the magistrate’s own motion. But even if the magistrate erroneously divided mother’s' claimed cost of insurance for the child, .the authority to correct mathematical errors does not permit correction of this error because it is not a mathematical error ($175 4- 2 = $87.50). The mathematical calculation was done correctly, but it should not have been done.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2000 ND 93
    Lloyd HAMERS, paternal grandparent of J.H., Plaintiff and Appellant, v. Diane GUTTORMSON, f/k/a Diane Hamers, Defendant and Appellee.
    No. 990170.
    Supreme Court of North Dakota.
    May 11, 2000.

      Kevin J. Chapman, Chapman Law Office, Williston, N.D., for plaintiff and appellant.
    Gary Michael Beaudry, Williston, N.D., for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Lloyd Hamers, the paternal grandparent of J.H. (“John,” a pseudonym), appealed from a judgment denying Hamers’ petition for custody of John and awarding custody to Diane (“Guttormson”) Sheehan, John’s natural mother. We hold the trial court’s custody award is not clearly erroneous, and we affirm.

I

[¶ 2] Diane and Richard Hamers, the natural father of John, were married in October 1993 and John was born in May 1994. In November 1995, a Montana trial court granted Richard and Diane a dissolution of marriage and awarded custody of John to Richard with visitation privileges for Diane. Shortly after the divorce Richard moved with John to South Dakota. They resided there until Richard was killed in a motor vehicle accident in December 1997. After Richard’s fatal accident, Lloyd took John to reside in his home at Tioga and filed a petition with the district court seeking custody of John. Diane, through her attorney, filed an admission of service, and an evidentiary hearing was held on Lloyd’s petition on August 26, 1998. The trial court found there did not exist exceptional circumstances upon which to award custody of John to a third party rather than to his natural mother. Judgment was entered denying Lloyd’s petition for custody and awarding custody to Diane, from which Lloyd filed this appeal.

II

[If 3] On appeal Lloyd argues there are exceptional circumstances in this case entitling him to have custody of John. He asserts the trial court’s award of custody to- Diane is, therefore, clearly erroneous.

[If 4] An award of custody is a finding of fact, which this Court will not disturb unless it is clearly erroneous. Brown v. Brown, 1999 ND 199, ¶ 10, 600 N.W.2d 869. Under N.D.R.Civ.P. 52(a) a finding of fact is clearly erroneous only if it is induced by an erroneous view of the law or, although there is some evidence to support it, on thé entire record we are left with a definite and firm conviction a mistake has been made. Id.

[¶ 5] It is well-settled .that parents have a paramount and constitutional right to the custody and companionship of their children superior to that of any other person. Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986); Hust v. Hust, 295 N.W.2d 316 (N.D.1980). That right,- however, is not absolute, and in custody disputes between a natural parent and a third party exceptional circumstances may require, in the child’s best interests to prevent serious harm or detriment to the child, that the child be placed in the custody of a third party rather than with the natural parent. In Interest of E.J.H., 546 N.W.2d 361, 364 (N.D.1996). While this Court has not attempted to narrowly define or circumscribe the exceptional circumstances which must exist to permit a court-to consider placing custody of a minor child with a third party rather than with the natural parent, each case in which such a placement has been upheld by this Court has involved a child who has been in the actual physical custody of the third party for a sufficient period of time to develop a psychological parent relationship with that third party. See Worden v. Worden, 434 N.W.2d 341, 342 (N.D.1989). A person who provides a child’s daily care and who, thereby, develops a close bond and personal relationship with the child becomes the psychological parent to whom the child turns for love, guidance, and security. Patzer, 396 N.W.2d at 743. The establishment of a psychological parent relationship, however, does not end the court’s inquiry; rather it necessitates further inquiry as' to whether the exceptional circumstances of the case require the child to remain in the custody of the psychological parent, rather than be placed with the natural parent, to prevent serious detriment to the welfare of the child. Id.

[¶ 6] John’s grandfather candidly admits there is not a psychological parent relationship between himself and John. Rather, he supports his claim for custody on the ground John’s mother, Diane, has abandoned John by failing to pay support and by failing to have significant contact with him since she and Richard were divorced. Regarding Lloyd’s abandonment argument, the trial court made the following relevant findings of fact:

... Diane continually attempted to obtain visitation with the child while the child was residing in South Dakota, but because of the expense of the traveling distance and the economic condition of Diane, she was unable to maintain a frequent visitation schedule. However, the record is full of evidence indicating her constant attempt to maintain contact with the child through the mail and by telephone. There is no evidence indicating that she abandoned the child at any time. Rather, the evidence shows that she frequently attempted visitation.

There is substantial evidence in the record to support the trial court’s findings on this issue. In concluding Diane did not abandon John, the court specifically found that after Richard moved with John to South Dakota, Diane employed an attorney to assist her “in obtaining visitation privileges.” There is substantial record evidence Richard attempted to secret John from Diane and to frustrate Diane’s attempts to contact and have visitations with John.

[¶ 7] The Montana divorce decree ordered Diane to pay $35 per month in child support, which she has failed to do. This is a concern, because payment of support and fulfilling other parental duties are important although not necessarily determinative factors to consider in determining whether a parent has abandoned a child. See, e.g., Matter of Adoption of 529 N.W.2d 864, 866 (N.D.1995). A failure to pay support, does not, in itself, constitute abandonment. Id. Neither Diane’s meager financial status nor Richard’s attempts to frustrate contact between John and Diane excuse her failure to pay support. They are, nevertheless, appropriate factors for the court to consider in deciding whether Diane intended to abandon John. From our review of the entire record, we are not left with a definite and firm conviction the trial court made a mistake in finding Diane did not abandon John.

[¶ 8] The trial court ordered a home study of Diane and her current husband, Mike Sheehan, which was conducted by Sam Hubbert of Catholic Social Services in Helena, Montana. Diane and Mike reside in Helena with their daughter, M.S., who was born in December 1996 and with Diane’s daughter, N.P., born in December 1986, from a prior marriage. Hubbert concluded Diane possesses appropriate parenting skills and he would have “no concerns” that awarding custody to Diane would impose “a significant risk of harm to John’s physical or psychological well-being.” Hubbert recommended the court place John in Diane’s custody. The trial court found Diane “possesses the parenting skill and ability to provide for the care, custody, and best interest of [John].” The record evidence supports the court’s finding.

[¶ 9] Lloyd’s primary contention in these proceedings is that Diane is unfit to parent John and that Lloyd possesses better parenting skills and ability to provide for John’s welfare. Lloyd’s focus ignores the well-settled principle that a court cannot award custody to a third party, rather than the natural parent, under a best-interest-of-the-child test unless exceptional circumstances exist to trigger the best interest analysis. Worden v. Worden, 434 N.W.2d at 342. Absent exceptional circumstances, the natural parent is entitled to custody of the child, even though the third party may be able to offer more amenities. Id. He asks us to expand our previous holding of exceptional circumstances to include a parent’s fitness. We decline to do so. Where a natural parent’s fitness to provide a minimal standard of adequate care of a child is at issue, proceedings under the Uniform Juvenile Court Act, N.D.C.C. ch. 27-20, are available to protect and safeguard the interests of both parent and child. Id. at 343. It is improper, however, to deprive a natural parent custody on the ground of unfitness in proceedings such as these wherein parental fitness is not the appropriate test. Id.

Ill

[¶ 10] We have reviewed the record in this case. We are unpersuaded there are exceptional circumstances to trigger a consideration by the court of whether, in John’s best interests, custody should be awarded to Lloyd, or any other third party, rather than John’s natural mother, Diane. We conclude the trial court’s findings are not clearly erroneous and its award of custody to Diane is not in error.

[¶ 11] Judgment affirmed.

[¶ 12] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.


author: [¶ 18] Gerald W. Vande Walle, C.J.

text:
    2000 ND 97
    Wolfgang MAU and Ena Mau, Plaintiffs and Appellants, v. NORTH DAKOTA INSURANCE RESERVE FUND, a corporation, Defendant, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, a corporation, Defendant and Appellee
    No. 990217.
    Supreme Court of North Dakota.
    May 17, 2000.

      Duane A. Lillehaug (argued) and Leland F. Hagen of Lee Hagen Law Office, Ltd., Fargo, for plaintiffs and appellants.
    William P. Harrie of Nilles, Hansen & Davies, Ltd., Fargo, for defendant and ap-pellee.
   [¶ 1] Wolfgang Mau (“Mau”) and Ena Mau appealed a district court summary judgment dismissing their action against National Union Fire Insurance Company of Pittsburgh, Pennsylvania, (“National Union”) for underinsured motorist benefits. Resolution of this appeal involves a question of Wisconsin law which may be determinative, and it appears to us there is no controlling precedent in the decisions of the supreme court and the court of appeals of Wisconsin. On our own motion, we are certifying an issue to the Wisconsin Supreme Court under N.D.R.App.P. 47(h).

I

[¶ 2] Mau and Dieter Jung, residents of Germany, arranged with a German travel agent to rent a car from Alamo Rent-A-Car, Inc., (“Alamo”) in Milwaukee, Wisconsin, for three weeks in 1997. Mau arrived in Milwaukee on April 4, 1997, and rented a car from Alamo.

[¶ 3] On April 5, 1997, Mau lost control of the rental car on 1-94 west of Casselton, North Dakota. The vehicle came to rest with its front wheels over the shoulder of the road and could not be moved because of mud. A Cass County deputy sheriff arrived and parked his patrol car about 60 feet from the rental car. The deputy asked Jung and Mau to get into his car and was helping them make arrangements to have the rental car pulled out so they could continue their trip, when the patrol car was struck by a vehicle operated by Bette Mashburn of Mount Sterling, Illinois. Mau, sitting in the back seat of the patrol car, was seriously injured.

[¶ 4] Mau settled his liability claim against Mashburn for her insurance policy limit of $100,000. Mau sued the North Dakota Insurance Reserve Fund (“NDIRF”), which insured the patrol car, and National Union, Alamo’s insurer. The NDIRF policy had a limit of $1,000,000 for underinsured motorist coverage, and NDIRF settled Mau’s claims for $715,000.

[¶ 5] On June 16, 1998, the district court issued an order for partial summary judgment, ruling North Dakota law applied. On June 4, 1999, the district court granted National Union’s motion for summary judgment, ruling, in part:

2. That although the Plaintiff Wolfgang Mau was an occupancy insured for purposes of underinsured motorist coverage under the Alamo rental vehicle insured by National Union, the Plaintiff Wolfgang Mau was occupying the Cass County motor vehicle insured by the NDIRF at the time of the accident pursuant to N.D.CentCode § 26.1-40-15.4(8)(a).
3. That the NDIRF underinsured motorist policy is primary pursuant to N.D.CentCode § 26.1-40-15.4(3), and the National Union underinsured motorist policy is a lower priority policy.
4. That underinsured motorist coverage is not available to Plaintiffs under the National Union policy because the $1,000,000 coverage available under the National Union policy insuring the Alamo rental vehicle does not exceed the $1,000,000 coverage available under the NDIRF policy insuring the Cass County motor vehicle pursuant to N.D.Cent. Code § 26.1-40-15.4(3).

(Docket Entry 97). A judgment dismissing the action against National Union was entered on June 9, 1999, and Mau appealed.

[¶ 6] Mau’s insurance coverage is provided in the rental documents he received when he rented the Alamo car and in policies issued to Alamo by National Union. An Alamo rental voucher said:

THE FOLLOWING PRODUCTS, AS DESCRIBED IN THE RENTAL JACKET, ARE INCLUDED:
-EP WITH BODILY INJURY LIABILITY LIMIT AND UM LIMIT OF 1 MILLION

(Appendix 78). Under “TERMS FOR RENTING AN ALAMO CAR,” the rental agreement provided:

Other Options: ... Extended Protection (EP), ... and other such options are offered where permitted and are described and limited on the rental agreement jacket that I received from you and in any underlying policy.
Lawsuits: I agree that the county within the state in which I signed this agreement is the only place where you or I may file any action relating to this agreement. In any such action the law of the state in which I signed this agreement shall apply....
State Law: The law of the state of rental may change, limit or prohibit any part of this agreement (such as collision damage waiver, authorized drivers, or damage losses allowed). If so, that law applies.

(Appendix 79). The rental agreement jacket provided:

This is your Rental Agreement Jacket which contains important information about options you may purchase. The benefits are only as described in this Rental Agreement Jacket and in any underlying insurance policy covering the rental and are subject to the express terms and conditions of your Rental Agreement. Alamo offers no “full coverage” option.
UNINSURED MOTORIST (UM)
UM provides benefits to you and any family members up to an aggregate single limit of $100,000. These benefits are provided to you or any family member who, while physically occupying the Alamo rental car when it is being driven by you or an authorized driver, suffers bodily injury or death by a negligent motorist, a negligent underinsured motorist or a negligent hit and run driver. EXTENDED PROTECTION (EP)
If purchased, EP provides ... UM protection as described above. EP does not include any additional UM coverage above $100,000, except to the extent, if any, required by state law, and you and Alamo reject such additional UM coverage to the extent permitted by law.
... Alamo’s policy is issued by National Fire Ins. Co. of Pittsburgh, PA (“National Union”).

(Appendix 86).

[¶ 7] The declarations page of the National Union policy (RMCA 1432406) issued to Alamo states the named insured and its mailing address:

ALAMO RENT-A-CAR, INC. — “see endorsement # 3”

110 SE 6th ST.

FT. LAUDERDALE, FL 33301

(Appendix 131). Endorsement # 3 specifies Alamo and a number of other named insureds. The policy provides: “Throughout this policy the words ‘y°u’ and ‘y°ur’ refer to the Named Insured shown in the Declarations. The words ‘we,’ ‘us’ and ‘our’ refer to the Company providing this insurance.” (Appendix 134). (Section II — Liability Coverage, provides in Paragraph A(l)):

The following are “insureds”:
a. You for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow....

(Appendix 135). The declarations page includes uninsured motorist coverage for renters, subject to Endorsement # 11, which provides, in part:

MASTER UNINSURED/UNDERIN-SURED MOTORISTS REJECTION ENDORSEMENT
In all states where permissable to do so, Uninsured/Underinsured Motorist Coverage is REJECTED except as follows:
1. Only while occupying the Alamo rental vehicle, any rentee/lessee who purchases the Extended Protection (EP) Option, the International Extended Protection Option (IEP), or the Uninsured Motorists Protection (UMP) Option, but only while the Alamo vehicle is being driven by the rentee/lessee or an “Alamo Authorized Additional Driver” and all terms and conditions of the Rental Agreement have been met.
2. Only while occupying the Alamo rental vehicle, any rentee/lessee or “Alamo Authorized Additional Driver” where the Named Insured has contractually agreed to provide limits covered by this policy, but only while the Alamo vehicle is being driven by the rentee/lessee or an “Alamo Authorized Additional Driver” and all terms and conditions of the Rental Agreement have been met.

(Appendix 155).

[¶ 8] Another National Union policy (RMCA 1432440) issued to Alamo provided excess auto liability coverage for renters, like Mau, purchasing International Extended Protection (IEP). The excess auto liability policy was available to Mau because he purchased the International Extended Protection. The declarations page of the excess auto liability policy provides: “NAMED INSURED: SEE ENDORSEMENT # 1.” (Appendix 168). Endorsement # 1 to that policy defined as an “Insured” one who rents an Alamo car “Only while occupying the Alamo rental vehicle, any rentee/lessee who purchases the International Extended Protection (IEP) Option, but only while the Alamo vehicle is being driven by the rentee/les-see.” (Appendix 172). Policy No. RMCA 1432440 incorporated the terms, conditions, and exclusions of the underlying policy (RMCA 1432406). A modifying uninsured motorist coverage endorsement provides:

A. COVERAGE

1. We will pay all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle.” The damages must result from “bodily injury” sustained by the “insured” caused by an “accident”. The owner’s or driver’s liability for these damages must result from the ownership maintenance or use of the “uninsured motor vehicle”.

B. EXCLUSIONS

This insurance does not apply to any of the following:
2. “Bodily Injury” sustained by you or any “family member” unless occupying the Alamo rental vehicle.

C. LIMIT OF INSURANCE

1. Regardless of the number of covered “autos”, “insureds”, premiums paid, claims made or vehicles involved in the “accident”, the most we will pay for all damages resulting from any one “accident” is the difference in limits between $1,000,-000 and the underlying insurance or minimum financial responsibility bodily injury limits where Alamo is a Qualified Self Insurer.

(Appendix 174). That endorsement defined “occupying” as “in, upon, getting in, on, out or off the rental vehicle,” defined an uninsured motor vehicle as one for which no liability policy provided “at least the amounts required by the applicable law where a covered ‘auto’ is principally garaged,” and defined “an underinsured motor vehicle” as an uninsured motor vehicle. (Appendix 176).

II

[¶ 9] Mau contends the insurance contract involved in this case is governed by Wisconsin law, rather than North Dakota law, and under Wisconsin law, he is entitled to recover underinsured motorist benefits from National Union. The trial court held North Dakota law applies, and there is no coverage. National Union argues that although choice of laws analysis is not necessary because there is no coverage under either North Dakota or Wisconsin law, the trial court did not err in applying North Dakota law because the relevant contacts balance out and the determining factor should be the place of the accident.

[¶ 10] Mau asserts application of Wisconsin or North Dakota law will cause different results:

Mau and National Union dispute which state’s law is better: Wisconsin or North Dakota. The bottom line is that under the interpretation of Wisconsin law, as cited in this brief, Mau would have Wisconsin’s “personal and portable” UIM coverage available. The total insurance coverage available would be $2.1 million. Under the interpretation advanced by National Union under North Dakota law, he would have only $1.1 million, with UIM limited to that on the vehicle he was physically occupying at the time of the crash.

[¶ 11] Mau relies on West Bend Mut. Ins. Co. v. Playman, 171 Wis.2d 37, 489 N.W.2d 915 (1992); St. Paul Mercury Ins. Co. v. Zastrow, 166 Wis.2d 423, 480 N.W.2d 8 (1992); Wood v. American Family Mut. Ins. Co., 148 Wis.2d 639, 436 N.W.2d 594 (1989); Martin v. Milwaukee Mut. Ins. Co., 146 Wis.2d 759, 433 N.W.2d 1 (1988); Schwochert v. American Family Mut. Ins. Co., 139 Wis.2d 335, 407 N.W.2d 525 (1987); Welch v. State Farm Mut. Auto. Ins. Co., 122 Wis.2d 172, 361 N.W.2d 680 (1985); Rodey by Richardson v. Stoner, 180 Wis.2d 309, 509 N.W.2d 316 (Ct.App.1993); and Landvatter v. Globe Sec. Ins. Co., 100 Wis.2d 21, 300 N.W.2d 875 (Ct.App.1980), to “show that in Wisconsin, uninsured and underinsured motorists coverage is ‘personal and portable,’ and that the full $1 million in coverage is available to Mau.”

[¶ 12] The foregoing decisions relied upon by Mau involve individual policies. National Union relies on Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis.2d 211, 485 N.W.2d 267 (1992); Martin v. Milwaukee Mut Ins. Co., 146 Wis.2d 759, 433 N.W.2d 1 (1988); and Meyer v. City of Amery, 185 Wis.2d 537, 518 N.W.2d 296 (Ct.App.1994), to show “[t]he restriction of renters such as Plaintiff as ‘occupancy insureds’ is valid and enforceable under Wisconsin law.”

[¶ 13] Mau has not shown he was occupying or using the rental car under Wisconsin law when he was injured.

[¶ 14] Wisconsin Stat. § 632.32(5)(e) provides: “A policy may provide for exclusions not prohibited by sub. (6) or other applicable law.” Wisconsin Stat. § 632.32(6) provides:

(b) No policy may exclude from the coverage afforded or benefits provided:
2.a. Any person who is a named insured or passenger in or on the insured vehicle, with respect to bodily injury, sickness or disease, including death resulting therefrom, to that person.

Relying on the declarations page and Endorsement # 1 to the National Union excess policy, it.may be argued Mau is a named insured under Wis. Stat. § 632.32(6)(b)(2). Wisconsin Stat. § 632.32(6)(b)(2) does not specifically prohibit an insurance policy from excluding a person who is not a named insured or passenger in or on the insured vehicle. Endorsement # 1 to the excess policy defines an “insured” as “Only while occupying the Alamo rental vehicle, any ren-teefiessee who purchases the International Extended Protection (IEP) Option, but only while the Alamo vehicle is being driven by the rentee/lessee.” (Emphasis added.) Thus, by definition in the endorsement, Mau arguably was not an insured while sitting in the patrol car, if the “only while occupying” limitation is valid under Wisconsin law. Wisconsin Stat. § 632.32 expressly prohibits certain exclusions but does not prohibit all exclusions. See Clark v. American Family Mut. Ins. Co., 218 Wis.2d 169, 577 N.W.2d 790, 793 (1998) (determining a territorial exclusion for uninsured motorist coverage was valid); Blazekovic v. City of Milwaukee, 225 Wis.2d 837, 593 N.W.2d 809 (Ct.App.), review granted, 602 N.W.2d 758 (1999) (interpreting Wis. Stat. § 632.32(4)(a), (5) (e, j), (6), and determining statutory amendments to § 632.32 did not make all “drive other car” exclusions permissible). Wisconsin Stat. § 632.32(6) does not appear to specifically prohibit an insurance policy specifying only a corporation as the named insured from defining an insured as a person occupying the insured vehicle, thereby excluding from coverage a person who is not occupying the vehicle.' On the other hand, although ' Wis. Stat. § 632.32(5)0) permits a policy provision which would exclude UIM coverage to a named insured who is occupying an owned vehicle, not listed in the policy and which meets neither the policy definition of a newly acquired vehicle nor replacement vehicle, it does not appear to make all “drive other car” exclusions permissible and may implicitly prohibit such exclusions.

Ill '

[¶ 15] We have examined the cited Wisconsin authorities, and it is unclear to us what course the Wisconsin courts would follow in the circumstances presented. Therefore, under Wis. Stats. Ch. 821, we respectfully certify the following question to the Wisconsin Supreme Court:

Is Endorsement # 1 defining an “Insured” as “Only while occupying the Alamo rental vehicle, any rentee/lessee who purchases the International Extended Protection (IEP) Option, but only while the Alamo vehicle is being driven by the rentee/lessee” valid under Wisconsin law to preclude underinsured motorist coverage to one who rents a car from Alamo, purchases the IEP Option, and is injured while sitting in a different car?

[¶ 16] We invite the justices of the Wisconsin Supreme Court to reformulate our question if they deem it appropriate. We do not intend anything in this certification to limit the scope of their inquiry. The clerk of this Court shall transmit the briefs and appendices in this case and a copy of this opinion to the Wisconsin Supreme Court. Further proceedings in this Court are stayed while this matter is considered by the Wisconsin Supreme Court.

[¶ 17] We order this question of law certified to Wisconsin Supreme Court.

[¶ 18] Gerald W. Vande Walle, C.J.

Dale V. Sandstrom Carol Ronning Kapsner Mary Muehlen Maring William A. Neuman

      . We will refer to Wolfgang Mau and Ena Mau, collectively, as Mau.

      . Endorsement # 3 does not specify renters in general, or Mau in particular, as named insureds.

      . The rental agreement provided, in part:

        Lawsuits: I agree that the county within the state in which I signed this agreement is the only place where you or I may file any action relating to this agreement. In any such action the law of the state in which I signed this agreement shall apply.

      . Wisconsin Stat. § 600.03(26) defines an "insured”: " 'Insured' means any person to whom or for whose benefit an insurer makes a promise in an insurance policy.... This definition applies only to chs, 600 to 655 and does not apply to the use of the word in insurance policies.”


author: KONENKAMP, Justice MILLER, Chief Justice SABERS, Justice

text:
    2000 SD 56
    STATE of South Dakota, Plaintiff and Appellant, v. Debra Kay SPRINGER-ERTL, Defendant and Appellee.
    No. 20723.
    Supreme Court of South Dakota.
    Argued Oct. 20, 1999.
    Reassigned Jan. 6, 2000.
    Decided April 26, 2000.

      Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, for plaintiff and appellant.
    Pamela K. Ireland, Kadoka, for defendant and appellee.
   KONENKAMP, Justice

(on reassignment).

[¶ pj The State of South Dakota appeals ⅛6 0f a new trial to the defendant. We affirm.

A.

[¶ 2.] The defendant, Kay Springer-Ertl, is the mother of Shawn Springer. Sixteen-year-old Shawn and another juvenile were charged with the January 26, 1996, murder, kidnapping, and robbery of taxicab driver Michael Hare near Fort Pierre, Stanley County, South Dakota. Extensive publicity convinced the judge to move Shawn’s trial to Martin in Bennett County. It was scheduled to begin on August 5, 1996.

[¶ 3.] Two weeks before her son’s trial date, the defendant created multiple copies of an 8½ x 11 inch laminated poster. In large letters at the top, the poster declared: INNOCENT!! Beneath was a photograph of a smiling young man, with a caption identifying him and his hometown. Below that was the message:

Shawn Springer is accused in the murder, kidnapping and robbery of Michael Hare, a Pierre taxicab driver.
Shawn took a Polygraph (lie detector test) and this proved he knew nothing beforehand of the events that took place that night, or that he took part. The court will not allow this evidence into trial. The people of South Dakota must know an innocent young man is being persecuted. Shawn’s trial starts August 5™ 1996.

(emphasis in original).

[¶ 4.] On July 20, 1996, the defendant, her husband, and her oldest son drove to Martin. They rented a motel room and the defendant set about distributing her posters. She. approached various businesses in town, asking each to display one. Most agreed. Some of the businesses were closed, so she hung the posters on their windows. On her way out of town on July 21, she also deposited posters on some vehicles outside a church. In total, she distributed approximately thirty. No posters were distributed in any other community but Martin.

[¶ 5.] On July 22, Agent Gortmaker. of the South Dakota DCI and a detective from Minnesota contacted the defendant at her home in Marshall, Minnesota. As they sat at her kitchen table, the defendant, in response to the officers’ questions, admitted to circulating the posters, saying she “wanted people to know about the polygraph and the polygraph results.” Within forty-eight hours, a number of the posters had been seized by law enforcement officers. Many others had been discarded by the business owners. Nonetheless, the judge, perceiving that the jury pool had been contaminated, postponed the trial. Shawn later pleaded guilty under a plea bargain.

[¶ 6.] The defendant’s poster was not addressed to anyone in particular. It could not have been directed specifically to any juror because no prospective jurors had been summoned. One hundred fifty persons had been “drawn” from the county master list, but no one had yet been called for duty on Shawn’s case. According to Linda Larson, the Bennett County Clerk of Courts, prospéctive jurors for the August 5 trial would not have been summoned until ten days beforehand. Because the trial was later cancelled, no jurors were ever summoned.

[¶ 7.] The defendant was charged with three counts of attempting to influence jurors under SDCL 22-11-16, a Class 6 felony, each offense punishable by a maximum of two years imprisonment in the state penitentiary or a fine of two thousand dollars, or both. SDCL 22-6-1(8). After a preliminary hearing, the defendant was bound over to circuit court to stand trial. Upon the arraignment, however, the circuit court dismissed the information and the State appealed. We reversed because after the ease was bound over, the circuit court did not have authority to dismiss an information for lack of probable cause. The case was remanded for trial. See State v. Springerr-Ertl, 1997 SD 128, 570 N.W.2d 39.

[¶ 8.] Crucial to imposing criminal penalties under SDCL 22-11-16' is a finding that the accused attempted “to influence a juror, or any person summoned or drawn as a juror[.]” At trial, the defendant repeatedly denied any intent to influence jurors. In finding her guilty of Count 2, a violation of SDCL 22-11-16(2), the jury apparently concluded that because she distributed her posters only in the town of Martin, she did intend to influence people “drawn” as potential jurors. After the verdict, the court granted the defendant a new trial. As the poster was publicly distributed, the judge reasoned, the jury should have been advised on what distinguishes the crime of attempting to influence jurors from protected speech under the First Amendment.

B.

[¶ 9.] Granting a new trial lies within a court’s discretion and that discretion will not be overridden unless it is abused. Delzer v. Penn, 534 N.W.2d 58, 60 (S.D.1995) (quoting Fullmer v. State Farm Ins. Co., 498 N.W.2d 357, 361 (S.D. 1993) (citation omitted)). We require a clearer showing of abuse of discretion when a new trial was granted than when it was denied. Id. (quoting Fullmer, 498 N.W.2d at 361 (citation omitted)). Trial courts are empowered under SDCL 15-6-59(a)(7) to grant a new trial for errors made in trial. In granting the defendant’s new trial motion, the court cited its own error in failing to include jury instructions on freedom of speech under the United States Constitution and the Constitution of the State of South Dakota. The State argues that the defendant was not entitled to such instructions. In the State’s view, government may regulate public expression to assure that the administration of justice is free from outside control and influence. Speech intended to influence jurors, the State contends, is constitutionally unprotected, and because the jury found that the defendant did intend to influence potential jurors, the First Amendment avails her nothing.

C.

[¶ 10.] This is no ordinary jury tampering case. Jurors were not solicited directly or approached indirectly through an intermediary. On the contrary, the defendant was charged with attempting to influence one or more unidentified persons drawn but never summoned for jury service. Her attempt, the State asserts, was consummated by simply putting up her posters. Neither side cites us to any case with even remotely similar facts. More typical are cases like United States v. Ogle, 613 F.2d 233 (10th Cir.1979), where the perpetrator had an acquaintance offer to give a juror a copy of his jury nullification pamphlet. Most offenses are committed directly, when, as in United States v. Jackson, the defendant approached two venirepersons and told them that a friend was on trial and the “federal boys are trying to railroad” the friend, and to listen for the word “harassment.” United States v. Jackson, 607 F.2d 1219, 1220 (8th Cir.1979), cert. denied, 444 U.S. 1080, 100 S.Ct. 1032, 62 L.Ed.2d 763 (1980).

[¶ 11.] The defendant’s poster approaches fully protected political speech because it was couched as public criticism of the government in its handling of a criminal prosecution. “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1, 10 (1978) (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484, 488 (1966)). Government, including courts and judges, possess “no greater immunity from criticism than other persons or institutions.” Id. at 839, 98 S.Ct. at 1541, 56 L.Ed.2d at 10 (citation omitted). Americans hold the prerogative to “criticize public men and measures — and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U.S. 665, 674, 64 S.Ct. 1240, 1245, 88 L.Ed. 1525,1531 (1944).

[¶ 12.] Here, the criticism was focused in one small community where a trial was about to begin. Yet no poster was submitted directly to any juror whose name had been drawn, not even covertly by posting one at a place, such as the courthouse, where only jurors and court personnel would most likely see it. Con-cededly, the defendant can hardly be characterized as a concerned citizen who was expressing a conventional -grievance. But the First Amendment’ protects speech even if biased or improperly motivated. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77, 98 S.Ct. 1407, 1415-16, 55 L.Ed.2d 707, 717 (1978); Eastern RR Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139, 81 S.Ct. 523, 530, 5 L.Ed.2d 464, 472 (1961). If freedom of speech insulated comments only from those whose motives were pure, it would protect very little. A democracy relies on its citizens to judge and evaluate “the relative merits of conflicting arguments.” Bellotti, 435 U.S. at 792, 98 S.Ct. at 1424, 55 L.Ed.2d at 727.

[¶ 13.] The poster’s vice was that it revealed to the community where the case was about to be tried what the court ordered excluded from the trial. No gag order, however, barred the defendant from revealing this information. In her trial, the State offered no evidence that any prospective juror ever saw or even heard of her poster. In closing argument, nonetheless, the prosecutor told the defendant’s jury that the poster was “illegal” and “it does not matter if one or two or fifty of the jurors, or none of them that were on the panel saw that poster. It is the attempt to influence that causes the problem.” As the State never identified any prospective juror who saw or heard about the defendant’s poster, whoever in particular was the target of the defendant’s “influence” remains to this day unnamed and unknown.

[¶ 14.] Our inquiry is not whether polygraph exams are admissible in court. Nol-is the decision excluding such evidence at issue. Rather, what is noteworthy is that the polygraph result the defendant’s son obtained was a matter of public record, as the exam and its results were the subject of a public hearing in the son’s case. That hearing resulted in a court order excluding the test result. Anyone sitting in the courtroom at the time this evidentiary issue came up would have heard about it. In fact, the prosecution did not dispute the defendant’s contention at trial that nearly the same information had been related in statewide media reports; namely, that the court had excluded Shawn’s polygraph result in the upcoming trial. Thus, the defendant was convicted of attempting to influence a jury by disclosing in public, information about her son that was a matter of public record.

[¶ 15.] Court proceedings are public proceedings with few exceptions, and what happens in court abides in the public domain: “Those who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546, 1551 (1947). In Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the United States Supreme Court held that to prohibit press commentary on evi-dentiary issues, a state must show that “further publicity, unchecked, would so distort the views of potential jurors that 12 could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court.” Id. at 569, 96 S.Ct. at 2807, 49 L.Ed.2d at 703. “Truthful reports of public judicial proceedings have been afforded special protection against subsequent punishment.” Id. at 559, 96 S.Ct. at 2803, 49 L.Ed.2d at 698. Although it was argued that the poster sought to give prospective jurors information they would not have heard in the trial, the poster did not itself advocate or incite any unlawful conduct. Here we have the inverse of what Justice Scalia decried in another First Amendment case: the State imposes a prohibition on the individual that it is unprepared to impose on the press. Florida Star v. B.J.F., 491 U.S. 524, 542, 109 S.Ct. 2603, 2614, 105 L.Ed.2d 443, 461 (1989) (Scalia, J., concurring). As the defendant said to the jury in her trial, “if the paper can write that stuff, why can’t I[?]”

D.

[¶ 16.] We face a conflict of fundamentals: free expression versus impartial justice. In our inquiry, we must acknowledge that the First Amendment deserves overarching primacy in most circumstances. Free speech cannot be generally circumscribed, except in restricted settings. United Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217, 223, 88 S.Ct. 353, 356-57, 19 L.Ed.2d 426, 431 (1967). Where the right of free speech exists, it is “immaterial whether the beliefs sought to be advanced ... pertain to political, economic, religious or cultural matters.... ” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488,1498-99 (1958). Freedom of speech, indispensable to our democratic form of government, acts as a deterrent to the abuse of power. If government can conduct arrests and prosecutions free from public scrutiny, then fertile ground opens for oppression.

[¶ 17.] Freedom of expression, however, is not absolute. It was never meant “to give immunity for every possible use of language.” Frohwerk v. United States, 249 U.S. 204, 206, 39 S.Ct. 249, 250, 63 L.Ed. 561, 564 (1919) (citation omitted). See State v. Hauge, 1996 SD 48, ¶ 10, 547 N.W.2d 173, 176. One is not free, for example, to send threatening or harassing letters. Id. ¶¶ 9-10. Nor has anyone the right to make obscene telephone calls. State v. Crelly, 313 N.W.2d 455, 457 (S.D. 1981). First Amendment freedoms must yield to other essential values lest they be polluted and poisoned. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501,101 S.Ct. 2882, 2889, 69 L.Ed.2d 800, 810 (1981).

[¶ 18.] To preside effectively, courts must control the process to keep internal order and permit only admissible evidence. A fair trial would be impossible if jurors were beset with disclosures from beyond the courtroom. As Justice Holmes explained almost a century ago, “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881 (1907). To prevent interference with the conduct of trials, the United States Supreme Court declared: “A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.” Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 480,13 L.Ed.2d 487, 491 (1965).

[¶ 19.] In Cox, the Court upheld, in dicta, a statute that prohibited picketing near a courthouse. Id. at 560, 564, 85 S.Ct. at 478-79, 481, 13 L.Ed.2d at 492. In so finding, the Court stated:

A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State’s interest in assuring justice under law.
Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute — picketing and parading — is subject to regulation even though intertwined with expression and association.

Id. at 562-63, 85 S.Ct. at 480, 13 L.Ed.2d at 491. The Court explained: “[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Id. at 563, 85 S.Ct. at 480, 13 L.Ed.2d at 491-92 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834 (1949)). Picketers and paraders shouting and chanting beneath the courtroom window depict a spectacle wholly inimical to a reasoned and impartial rendering of justice.

[¶ 20.] All the same, the Court in Cox was careful to specify that it dealt “not with free speech alone, but with expression mixed with particular conduct.” Id. at 564, 85 S.Ct. at 480, 13 L.Ed.2d at 492. Here, the only act the State seeks to punish is the act of public communication. Cox upheld a statute prohibiting expression at a very particular location' — -a courthouse and its immediate perimeter. Left unprohibited was delivery of the same message by different method or even by the same method at a different place. See G.R. Stone, L.M. Seidman, C.R. Sunstein, M.V. Tushnet, The First Amendment 66 (1999). “There can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create.” Cox, 379 U.S. at ,562, 85 S.Ct. at 479, 13 L.Ed.2d at 491. How limited the location of prohibited expression may be was perhaps intimated two decades later in United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), when the Supreme Court struck down a federal law prohibiting display of flags, banners, or devices on the public sidewalks around the Supreme Court building. The government’s right to restrict expression in such places, the Court held, is “very limited.” Id. at 177, 103 S.Ct. at-1707, 75 L.Ed.2d at 743.

[¶ 21.] Restrictions on the freedom of speech may burden no more speech than necessary to fulfil proper government purposes. Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 380, 117 S.Ct. 855, 868, 137 L.Ed.2d 1, 23 (1997). “Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.” Pennekamp v. Florida, 328 U.S. 331, 347, 66 S.Ct. 1029, 1037, 90 L.Ed. 1295, 1303-04 (1946). For the most part, the defendant’s posters were placed in storefronts, visible from the sidewalk. “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.” Schenck, 519 U.S. at 377, 117 S.Ct. at 867, 137 L.Ed.2d at 21 (citing Boos v. Barry, 485 U.S. 312, 322, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333, 345-46 (1988); Grace, 461 U.S. at 180,103 S.Ct. at. 1708-09, 75 L.Ed.2d at 745-46 (other citations omitted)). Americans have long maintained the right to challenge and criticize government in its handling of affairs, including the arrests and trials of those charged as criminals. See, e.g., City of Houston v. Hill, 482 U.S. 451, 462-63, 107 S.Ct. 2502, 2510, 96 L.Ed.2d 398, 412-13 (1987). Indeed, the freedom to speak in opposition to acts of law enforcement is “one of the .principal characteristics by which we distinguish a free nation from a police state.” Id.

E.

[¶ 22.] While the Supreme Court’s decision in Gentile is not precisely on point because the public and the press have fewer speech restrictions than lawyers participating in judicial proceedings, it is well for us to consider the accused attorney’s remarks in that controversy. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). There, an attorney held a press conference announcing after his client’s arr rest that “the State sought the indictment and conviction of an innocent man as a ‘scapegoat’ and had not ‘been honest enough to indict the people who did it; the police department, crooked cops.’ ” Id. at 1034, 111 S.Ct. at 2724, 115 L.Ed.2d at 897-98. In our case, the defendant’s alleged motive is almost identical to the admitted motive the lawyer gave in Gentile :

[H]is primary motivation was the concern that, unless some of the weaknesses in the State’s case were made public, a potential jury venire would be poisoned by repetition in the press of information being released by the police and prosecutors,, in particular the repeated press reports about polygraph tests and the fact that the two police officers were no longer suspects.

Id. at 1042, 111 S.Ct. at 2728, 115 L.Ed.2d at 908. The lawyer “sought only to stop a wave of publicity he perceived as prejudicing potential jurors against his client and injuring his client’s reputation in the community.” Id. at 1043, 111 S.Ct. at 2728,115 L.Ed.2d at 903 (emphasis added). Here, the defendant never conceded that she wanted to influence potential jurors, but like Gentile, she testified, “I felt that public opinion was being tainted. I wanted to try to get it on a balanced level. It was tainted by the newspaper, the TV, the radio. I just wanted to try to balance it out some way.” The only material difference between this case and Gentile is that in Gentile the lawyer did not disseminate what was already public record.

[¶ 23.] Gentile’s public comments could not be used as a basis to punish him because Nevada’s prohibition against such remarks was so vague that it risked the potential for discriminatory enforcement. The Gentile Court observed that the Nevada Supreme Court had never given a clarifying interpretation of the ethics rule governing attorney comments. A lawyer’s statements on a pending case, the Court held, may be regulated without violating the First Amendment, if there is a “substantial likelihood of material prejudice” in the adjudicative process. Id. at 1074-75, 111 S.Ct. at 2745, 115 L.Ed.2d at 923. Lawyers representing clients in court are not protected by the First Amendment to the same extent as the public. Id. at 1073, 111 S.Ct. at 2744, 115 L.Ed.2d at 922. Regulation of public or media speech during pending proceedings, on the other hand, can only be justified by a “clear and present danger” of “actual prejudice or an imminent threat” of “some serious substantive evil which they are designed to avert.” Id. at 1069, 111 S.Ct. at 2742, 115 L.Ed.2d at 919-20 (citing Nebraska Press Ass’n, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683; Craig, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546; Pennekamp, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 197, 86 L.Ed. 192 (1941) (applying a “clear and present danger” standard and explaining that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished”)).

F.

[¶ 24.] First Amendment protections become meaningless if one can be punished for merely speaking on a pending case to a public that may contain future jurors. In this case, where the only communication charged as criminal was made in a public setting, it is vital to fix a precise standard for when the State may lawfully punish data dissemination about a pending trial. If an overbroad interpretation of a statute infringes on the right of free speech, it tends to discourage the exercise of that right. “Ambiguous meanings cause citizens to ‘ “steer far wider of the unlawful zone” ... than if the boundaries of the forbidden areas were clearly marked.’ ” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, n. 6, 102 S.Ct. 1186, 1191, n. 6, 71 L.Ed.2d 362, 369, n. 6, reh. denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982), (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377, 385 (1964)).

[¶ 25.] In First Amendment cases, appellate courts must “make an independent examination of the whole record” to ensure that “the judgment does not constitute a forbidden intrusion on the field of free expression.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502, 515 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-286, 84 S.Ct. 710, 729, 11 L.Ed.2d 686, 709 (1964)). It is incumbent on us, therefore, to give our jury tampering statute a narrowing construction sufficient to keep it from encroaching on First Amendment liberties. In Florida Star, the Supreme Court held that when a newspaper publishes information lawfully obtained, a state may impose punishment, .if at all, only when the statute is “narrowly tailored to a state interest - of the highest order.... ” 491 U.S. at 541, 109 S.Ct. at 2613, 105 L.Ed.2d at 460.

[¶ 26.] South Dakota surely holds an interest of the “highest order” in maintaining the integrity and fairness of its judicial proceedings. Impartial jurors form the bedrock of-our system. The purpose of SDCL 22-11-16 is to prohibit an attempt to -improperly influence jurors. We cannot tolerate efforts to subvert the process by those who would inject into a trial illicit and extraneous material an impartial jury should not hear. “Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” Bridges, 314 U.S. at 271, 62 S.Ct. at 197, 86 L.Ed. at 207. Those who illegally attempt to influence jurors may not immunize themselves by claiming a right to speak freely to anyone on any subject. But without a narrow standard with which to judge challenged speech, we neglect the hard ■ won freedoms alive in the First Amendment.

[¶ 27.] The standard applied to defendant’s acts of distributing her posters was whether she attempted to “influence” a “person ... drawn as a juror.'...” See SDCL 22-11-16(2)] Almost every public expression is an attempt to influence. How narrowly that influence was directed is the question. Cf. Duke v. United States, 90 F.2d 840, 841 (4th Cir.1937) (unsolicited letter delivered to grand jury). In the defendant’s trial, the court’s instructions drew no distinction between expression protected by the First Amendment, and communication designed to influence a person drawn as a juror. Jurors in the defendant’s trial could have logically deduced from the court’s instructions: (1) the defendant by imparting information to the public attempted to “influence” the public; (2) among the public were prospective jurors; and, therefore, (3) the defendant attempted to “influence” prospective jurors. This deduction seems inescapable because the jury had no instruction distinguishing public expression from improper communication with jurors.

[¶28.] That a future juror might somehow hear or read of someone’s public statement cannot feasibly constitute the precisely tailored restriction necessary to justify punishing speech otherwise protected by the First Amendment. If that conduct can be punished, then why not other types of public comment about a pending case? A letter to the editor, a newspaper op-ed piece, a television or radio commentary, a political speech, even an aside to one’s neighbor, all may be latent criminal acts if prospective jurors might learn of them. If this is how the statute is meant to operate, then what a fearful instrument it is to repress criticism and stifle debate. G.

[¶ 29.] With its friction between competing constitutional values, this case presents difficulties not easily reconciled. As we trace through the many First Amendment decisions, we discern no single methodology designed to set precisely the boundaries between the right of free speech and the crime of illegally influencing a juror. Perhaps the least that can be said is that “[e]ach method of communicating ideas is a ‘law unto itself and that law must reflect the ‘differing natures, values, abuses and dangers’ of each method.” Metromedia, 453 U.S. at 501, 101 S.Ct. at 2889, 69 L.Ed.2d at 811 (quoting Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 459, 93 L.Ed. 513, 528 (1949)). We find some guidance in those decisions that attempt to balance the competing values in our constitution: “Where First Amendment rights are asserted ... resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.” Barenblatt v. United States, 360 U.S. 109, 126, 79 S.Ct. 1081, 1093, 3 L.Ed.2d 1115, 1129 (1959). Although our criminal justice system retains the power to protect the integrity of its processes, in “borderline instances where it is difficult to say upon which side the alleged offense falls, ... the specific freedom of public comment should weigh heavily against a possible tendency to influence pending eases.” Pennekamp, 328 U.S. 331, 347, 66 S.Ct. 1029, 1037, 90 L.Ed. 1295, 1303-04. When it is alleged that an attempt to influence jurors was made by addressing the public, the balance must be inclined in favor of free speech by narrowly construing our statute.

[¶ 30.] The defendant was convicted of Count 2 (SDCL 22-11-16(2)), attempting to influence a person drawn as a juror “[b]y means of any book, paper or instrument exhibited otherwise than in the regular course of proceedings upon the trial of the cause[.]” In essence, the statute prohibits an improper attempt to influence a prospective juror. To “attempt” to commit a crime one must have the specific intent to commit each of the acts eonstitut-mg the offense. See SDCL 22-4-1; State v. Lyerla, 424 N.W.2d 908, 912 (S.D.1988) citing State v. Primeaux, 328 N.W.2d 256 (S.D.1982); State v. Poss, 298 N.W.2d 80 (S.D.1980); State v. Rash, 294 N.W.2d 416 (S.D.1980); State v. Martinez, 88 S.D. 369, 220 N.W.2d 530 (1974); State v. Judge, 81 S.D. 128,131 N.W.2d 573 (1964)).

[¶ 31.] A reasonable interpretation of our statute confines its scope to conduct designed to influence specifically jurors and persons summoned or drawn as jurors. Consequently, the statute would not include situations where a person intends to inform the public or express a public opinion, regardless of whether jurors — drawn, summoned, or sworn — may be among the public. This is consistent with the reach of decisions around the country dealing with attempts to solicit or tamper with jurors and prospective jurors. See cases collected at Wharton’s Criminal Law § 566 (15th ed. 1996 and Supp. 1999). With these constraints on the scope of SDCL 22-11-16(2), the statute meets the constitutional requirements of notice and specificity without infringing on First Amendment rights. Thus, the question is, did the defendant knowingly target prospective jurors in particular, with the specific intent to influence their verdict? On retrial, consonant with this standard, the defendant will be given the benefit of a jury instruction distinguishing between the crime of attempting to influence a juror and the right to free expression.

[¶ 32.] Affirmed.

[¶ 33.] AMUNDSON, Justice, concurs.

[¶ 34.] MILLER, Chief Justice, concurs specially.

[¶ 35.] SABERS and GILBERTSON, Justices, dissent.

MILLER, Chief Justice

(concurring specially)

[¶ 36.] While I do not condone the defendant’s actions in this case, it is important to remember that the issue here is not whether she committed the crime with which she was charged. The issue is whether the trial court erred in granting a new trial because it failed to give an instruction on the First Amendment. Clearly, the defendant would have been Constitutionally permitted to broadcast her message standing on a soap box in the town square or even via a television or radio spot. How can she be denied the right to have a jury be aware of her First Amendment protections?..

SABERS, Justice

(dissenting).

[¶ 37.] I disagree with the majority opinion’s conclusion that the trial court or this court should write a correct First Amendment jury instruction for Debra.

[¶ 38.] I agree that the real question here is whether the defendant placed her posters in Martin, South Dakota to “target prospective jurors particularly, with the specific intent to influence their verdict.” Because that is the real question, the First Amendment is not an issue. •

[¶ 39.] Debra was charged with the crime of attempting to influence jurors under SDCL 22-11-16, which provides:

Any person who attempts to influence a juror, or any person summoned or drawn as a juror, or chosen an arbitrator or appointed a referee, in respect to his verdict or decision in any cause or matter pending, or about to be brought before him:
(1) By means of any communication, oral or written, had with him, except in the,regular course of proceedings upon the trial of the cause;
(2) By means of any book, paper or instrument exhibited otherwise than in the regular course of proceedings upon the trial of the cause; or
(3) By publishing any statement, argument or observation relating to the cause;
is guilty of a Class 6 felony.

[¶ 40.] Essential to imposing criminal penalties under SDCL 22-11-16 is a finding that Debra had the criminal intent to influence potential jurors. The statute only prohibits speech and conduct that is intended to influence a juror, including “any person summoned or draum as a juror” in his or her capacity as a juror in a particular case. The conduct here, the deliberate and calculated displaying of posters in a small town where her son’s trial was to commence and where the jury was to be selected from, is within the core of the conduct prohibited by SDCL 22-11-16. Whether the content of the posters was admissible or inadmissible is of little relevance because the statute prohibits the intent of using any information in an effort to influence jurors. This content-neutral statute is narrowly tailored to prevent criminál behavior and is unrelated to the suppression of free expression. It is also irrelevant that “Debra did not personally solicit any juror whose name had been drawn.” Again, it is the intent and the acting on that intent that is evaluated; that is, whether Debra had the criminal intent to influence jurors when she distributed her posters.

[¶ 41.] The majority opinion concludes, in section C, that “the State imposes a prohibition on [an] individual that it is unprepared to impose on the press.” I disagree. Debra’s question, “if the paper can write that stuff, why can’t I[?],” can be answered as simply as it is asked: there is simply no evidence that the newspaper reporters or publishers possessed “the requisite intent to influence jurors’ actions as jurors in particular eases.” Turney v. State, 936 P.2d 533, 544 (Alaska 1997). See also Rapp v. Disciplinary Bd., 916 F.Supp. 1525, 1535 (D.Haw.1996) (stating that the “petitioners’ asserted reasons for the interviews, ‘while not without first amendment significance, [were] not “paramount” like the public’s right to receive information necessary for informed self-government.’ ”). Furthermore, newspaper editorials criticizing judicial proceedings are protected by the First Amendment. See Pennekamp v. State of Florida, 328 U.S. 331, 346-50, 66 S.Ct. 1029, 1037-39, 90 L.Ed. 1295 (1946); Bridges v. State of California, 314 U.S. 252, 268-78, 62 S.Ct. 190,196-201, 86 L.Ed. 192 (1941). In fact, the United States Supreme Court held that such commentary is punishable only if the risk of an unfair administration of justice is “ ‘extremely serious and the degree of imminence [is] extremely high.’ ” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 845, 98 S.Ct. 1535, 1544, 56 L.Ed.2d 1, 14 (1978) (quoting Bridges, 314 U.S. at 263, 62 S.Ct. at 194).

[¶ 42.] Clearly, communications directed to jurors differ from communications directed to the general public. Here, we are not determining First Amendment rights of the media. Instead, we are determining whether Debra was entitled to jury instructions on the First Amendment. She was not so entitled because “[t]he [F]irst [A]mendment does not provide a defense to a criminal charge simply because the actor uses words to carry out h[er] illegal purpose.” United States v. Barnett, 667 F.2d 835, 842 (9th Cir.1982). Therefore, Debra’s comparison of her conduct to a newspaper’s ability to publish information for the general public is essentially a comparison of broccoli, not apples, to oranges.

[¶43.] Debra chose to distribute her posters in the town of Martin, population 1,151, which is located within the county of Bennett, population 3,206. South Dakota Legislative Manual 1999-2000 613, 626. She did not choose to distribute her posters in Stanley County, where the murder occurred. Nor did she choose to distribute them in Marshall, Minnesota, where she resided. It was no accident that Martin was the only town in which Debra distributed her posters. To the contrary, it was a strategic, deliberate and calculated decision made for the obvious criminal intent to influence any of the 150 potential jurors who were summoned to appear for jury duty two weeks prior to the scheduled date for her son’s trial. The jury found, beyond a reasonable doubt, that the State proved the elements of the crime and that Debra was guilty of attempting to influence jurors.

[¶ 44.] The majority opinion meticulously attempts to establish that the First Amendment applies in this case. However, freedom of speech is not an absolute right. See Justice Konenkamp’s writing for a unanimous court in State v. Hauge, 1996 SD 48, ¶ 10, 547 N.W.2d 173, 176 (stating that defendant’s conduct of violating a protection order by sending a letter does not fall within the “ambit of the rights of free speech protected by the First Amendment”). See also People v. Borrelli 77 Cal.App.4th 703, 91 Cal.Rptr.2d 851, 860 (2000) (holding that a stalking statute does not infringe on free speech rights because it “does not regulate the content of speech [as much] as the manner in which the communication is made.” (emphasis in original)).

[¶ 45.] The United States Supreme Court has stated: “[a] State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.” Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 480, 13 L.Ed.2d 487, 491 (1965). In Cox, the Court examined'a statute which prohibited picketing near a courthouse. Id. at 560, 85 S.Ct, at 478-79, 13 L.Ed.2d at 489-90. The Court held that the statute was constitutional. Id. at 564, 85 S.Ct. at 481,13 L.Ed.2d at 492. In so finding, the Court stated:

A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State’s interest in assuring justice under law.
Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute - picketing and parading - is subject to regulation even though intertwined with expression and association.

Id. at 562-63, 85 S.Ct. at 480, 13 L.Ed.2d at 491 (emphasis added). The Court further stated: “[i]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Id. at 563, 85 S.Ct. at 480, 13 L.Ed.2d at 491-92 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834, 843-4 (1949)).

[¶ 46.] The purpose of SDCL 22-11-16 is to ensure the administration of justice by prohibiting the intent to improperly influence potential jurors. It prohibits conduct that attempts to. influence jurors. The statute is narrowly tailored. Only communications intended to affect the manner that the jury decides a specific case are prohibited. Certainly, the State has a legitimate interest in protecting and ensuring the execution of a fair and impartial judicial system. With the passage of SDCL 22-11-16, our legislature intended to prohibit any unreasonable conduct which, by its very nature, erodes the impartiality of jurors. Undoubtedly, it is the type of regulation envisioned by the Court in Cox as constitutional.

[¶ 47.] In Turney v. State, 936 P.2d 533, 541 (Alaska 1997),- Frank Turney, á leaf-leter for the Fully Informed Jury Association, was charged with jury tampering under AS 11.56.590. He challenged the constitutionality of the statute as a violation of his First Amendment rights. In its analysis, the Alaska Supreme Court stated:

Speech aimed at influencing the juror’s conduct as a juror, i.e, the juror’s execution of the responsibilities imposed by the trial court in a particular case, is not constitutionally protected. Justice Frankfurter noted that
In securing freedom of speech, the Constitution -is hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote.

Id. (quoting Pennekamp v. Florida, 328 U.S. 331, 366, 66 S.Ct. 1029,1047, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring) (emphasis added)). The court went on to conclude that the statute was indeed constitutional and determined:

In our view, the statute is not so imprecise that persons wishing to engage in constitutionally protected speech would be discouraged from doing so. The statute describes the prohibited conduct and required intent. It distinguishes between speech directed at the jurors who will decide a particular case and speech aimed at the general public.... Because the conduct must be accompanied by the intent specified by the statute, there is a correlation between the words of the statute and the constitutionally unprotected conduct.

Id. at 542-43 (emphasis added). See also United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (involving an unsuccessful First Amendment challenge by defendant convicted of burning his selective service registration certificate publicly to influence others to adopt his ;anti-war beliefs).

[¶ 48.] In aligning with the Turney court’s rationale, I conclude that the First Amendment does not grant immunity to Debra. To the contrary, “[c]onduet of this nature is obviously not protected by the guarantees of free speech provided for in the First Amendment.” State v. Crelly, 313 N.W.2d 455, 457 (S.D.1981) (holding that an unlawful obscene telephone call statute was constitutional); see also Hauge, 1996 SD 48, ¶.10, 547 N.W.2d at 176 (stating that defendant’s conduct of violating a protection order by sending a letter does not fall within the “ambit of the rights - of free speech protected by the First Amendment”). Debra went beyond her right of freedom of expression in a public forum and intruded upon the impartiality guaranteed within the justice system. She can not now assert that the First Amendment shields her from responsibility.

[¶ 49.] The majority opinion recognizes that Debra’s proposed instruction is “obviously inadequate,” but excuses the “inadequacy” by stating “we have never before construed our jury tampering statute, much less given it a narrowing interpretation. ...” Such an excuse is nonsense. The First Amendment is not a new concept and Debra certainly could have proposed an instruction that adequately reflected the law. Instead, she proposed:

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

This instruction is somewhat irrelevant to Debra’s case, confusing to the jury, improper, self-serving and does not adequately reflect the law concerning the First Amendment. Clearly, it was not an abuse of discretion for the trial court to refuse it, even if she later changed her mind; thus, no error occurred at trial to justify the granting of the motion for a new trial.

[¶ 50.] I vote to reverse and remand to the trial court with directions to reinstate the jury’s verdict, enter a judgment of conviction and proceed to sentencing. Anything more favorable to Debra is judicial legislation at it’s worst.

[¶ 51.] GILBERTSON, Justice, joins this dissent.

      . The full text of SDCL 22-11-16 provides:
      Any person who attempts to influence a juror, or any person summoned or drawn as a juror, or chosen an arbitrator or appointed a referee, in respect to his verdict or decision in any cause or matter pending, or about to be brought before him: '
      (1)By means of any communication, oral or written, had with him, except in the regular course of proceedings upon the trial of the cause;
      (2) By means of any book, paper or instrument exhibited otherwise than in the regular course of proceedings upon the trial of the cause; or
      (3) By publishing any statement, argument or observation relating to the cause;
      is guilty of a Class 6 felony.

      . The defendant’s proposed instruction stated:
      Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.
      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
      This is inadequate, as it simply recites the applicable passages of our state and federal constitutions. But as we have never before construed our jury tampering statute, much less given it a narrowing interpretation, the defendant cannot be faulted too critically for not proposing a more precise instruction.

      . In the defendant’s trial, Instruction #15 set forth the elements of the offense:
      The elements of the crime of attempting to influence a juror, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
      -1. The defendant attempted to influence a juror or, a person summoned or drawn as a juror in any Cause or matter about to be brought before that person.
      2. The defendant's attempt to influence was by a written or oral communication not given in the regular course of the proceedings upon trial of the cause.

      . In Turney v. State, 936 P.2d 533 (Alaska 1997), a case the dissent cites, the Alaska Supreme Court took an approach similar to ours by (1) construing its jury tampering statute to require a specific intent to influence a juror in his or her capacity as a juror in a particular case, and (2) requiring the prosecution to "prove that the defendant knew that he was communicating with a juror before he can be found guilty of jury tampering.” Id. at 541 (emphasis in original) (“knowledge is an historic requirement of the offense”) (citing Pettibone v. United States, 148 U.S. 197, 206, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893)). Unlike our case, there was no ambiguity in Tur-ney's conduct, as he approached persons wearing "juror” badges inside and outside the courthouse in an effort to have them adopt his jury nullification views to favor his friend on trial. Like us, the Turney Court was careful in its reading of Alaska’s jury tampering statute to distinguish "between speech directed at the jurors who will decide a particular case and speech aimed at the general public.” Id. at 542, 13 S.Ct. 542. See also United States v. Smith, 555 F.2d 249, 250-51 (9th Cir.1977) (reversing tax protestor’s conviction for criminal contempt for loudly remarking in presence of juror in the trial of another tax protestor, "I hope this jury doesn't go along with those communistic tax laws,” because he spoke merely with willful and wanton disregard of whether jurors might hear him, not knowingly and willfully).

      . In keeping with our limited role as a reviewing court, we do not examine the sufficiency of the evidence in this case, as the defendant has not brought the matter to our attention by notice of review or otherwise.

      . The majority opinion states "[hiere, the only act the State seeks to punish is the act of communication.” This statement is dead wrong as the statute clearly prohibits the intent of using any information to attempt to influence jurors.

      . The majority opinions cites to Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) as support. However, the facts in Gentile are substantially different. In Gentile, the Court was dealing with an attorney who made statements to the media about a pending trial. Here, we are dealing with communications made by a defendant's mother with intent to influence prospective jurors in the town where her son’s trial was to commence.

      . In evaluating legislative intent, the United States Supreme Court has stated:
      It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.

        Gomez v. United States, 490 U.S. 858, 864, 109 S.Ct. 2237, 2241, 104 L.Ed.2d 923 (1989) (citations omitted). If a "reasonable alternative interpretation” exists which "poses no constitutional question,” that interpretation should be used.
      In weighing this statute against the First Amendment, a "reasonable alternative interpretation” is that this statute prohibits the intent to influence potential jurors and not the mere expression of opinion.

      . This statute provides:
      (a) A person commits the crime of jury tampering if the person directly or indirectly communicates with a juror other than as permitted by the rules governing the official proceeding with intent to
      (1) influence the juror's vote, opinion, decision, or other action as a juror; or
      (2) otherwise affect ,the outcome of the official proceeding. ■
      (b) Jury tampering is a class C felony.

      . The majority opinion states that Debra had a First Amendment right to display her posters in the stores in Martin: “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.” (quoting Schenck, 519 U.S. at 358, 117 S.Ct. at 867, 137 L.Ed.2d at 21) (citations omitted).
      Leafletting is admittedly considered to be speech, but the application to Debra’s case is erroneous because she intended ,to use her posters as a mechanism to influence potential jurors, much like Turney did in Turney v. State, supra. The First Amendment is not a defense available to Debra under these circumstances.

      . I respectfully submit that the majority opinion, although intellectually elegant in appearance and beautifully written, shies away from a holding of unconstitutionality. I say the statute is constitutional and we should not impose an obligation on trial courts or ourselves under the pretense that the statute is unconstitutional. If the majority opinion can establish unconstitutionality, and it can not, let it do so expressly.