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

text:
    2000 SD 49
    Lennis I. RENNICH-CRAIG, Petitioner and Appellant, v. Duane RUSSELL, Warden of the South Dakota Women’s Penitentiary, Appellee.
    No. 21044.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 14, 2000.
    Decided April 12, 2000.

      Lome A. Miner, Stiles Law Firm, Mitchell, South Dakota, Attorney for petitioner and appellant.
    Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for appel-lee.
   SABERS, Justice.

[¶ 1.] Lennis Rennieh-Craig (Rennich) motioned for summary judgment that the trial court failed to hold a mental health hearing pursuant to SDCL 23A-7-16. The habeas court denied the motion and quashed the writ of habeas corpus. Ren-nich appeals. We reverse and remand.

FACTS

[¶ 2.] Renpich, born October 22, 1950, was charged with six forgeries and 20 burglaries in June of 1996. These crimes were committed between May 28 and June 10, 1996. On July 23, 1996, she appeared at her arraignment, waived the preliminary hearing and, pursuant to a plea agreement, entered a plea of guilty but mentally ill to one count of forgery and two counts of burglaries. The State dismissed the remaining 23 counts.

[¶ 3.] The trial court asked: “Is there a factual basis, which would include any reports from Community Counseling, to indicate the status of the [defendant's mental condition?” The State presented numerous documents to the court and replied:

Yes, Your Honor. We have the report from the police department for the check itself, the affidavit of forgery, and pictures of the [defendant negotiating this check at the ... [blank.
We also have the evaluation by Dr. Park, a psychiatrist at our mental health center, done earlier this year and also information from earlier this year from the Human Services Center outlining the [four] different medications the [defendant should be taking and what they are for.

(emphasis added). There is no record indication that the court considered the information presented by the State. The State claims that the trial court, by merely accepting this information, substantially complied with SDCL 23A-7-16. However, the State does not substantiate when the trial court actually considered the information. Instead, the record reflects that the trial court immediately determined that Rennich was “competent to enter a plea” and stated: “I will accept the plea of guilty but mentally ill, and also find that there is a factual basis for the plea.”

[¶ 4.] Within the information received by the trial court were three sets of documents related to Rennich’s mental health.

[¶ 5.] The first set involved four prescription documents from the South Dakota Human Services Center dated March 27, 1996. These documents set forth the name of the medication, its purpose, directions and possible side effects.

[¶ 6.] The second set was a psychologist’s report dated February 13, 1996. The report indicated that Rennich recently attempted suicide and diagnosed her with posttraumatic stress disorder and clinical depression.

[¶ 7.] The third set involved two psychiatric evaluations completed by Dr. Choong-Geun Park. On March 7, 1996, Dr. Park noted that Rennich was unresponsive and in a “disassociative state.” He diagnosed her with “acute stress disorder and recurrence of posttraumatic stress disorder.” The second evaluation, attached to the first, was dated March 8, 1996. It indicated that Dr. Park met with Rennich at the county jail. He noted that she tried to communicate verbally, but “was not able to say a word.” He also noted that she “is not aware of what she [was] charged with. She is not aware that she has to go to court for trial. She is not aware of the role of the district attorney or judge at the court hearing. [S]he is not able to cooperate with her lawyer to defend herself at the court hearing.” His diagnosis of Rennich broadened from the previous day: (1) Acute Stress Disorder; (2) Conversion Disorder, Motor Deficit, Aphonia; (3) Antisocial Personality; and (4) rule out brief psychotic disorder.” He concluded that she was not competent to stand trial.

[¶ 8.] On July 26, 1996, the trial court sentenced Rennich to 10 years in the South Dakota State Penitentiary on each of two counts of burglary and five years on one count of forgery, all sentences to be served consecutively. Rennich did not appeal.

[¶ 9.] On April 10, 1998, Rennich filed an application for writ of habeas corpus. Counsel was appointed and an amended petition for writ of habeas corpus was filed on August 18, 1998. The amended writ alleged that she: (1) received ineffective assistance of counsel; (2) was deprived of due process because (a) she was mentally ill when she entered her plea and (b) no mental health hearing was held in accordance with SDCL 23A-7-16; and (3) received cruel and unusual punishment.

[¶ 10.] On October 16, 1998, Rennich moved for summary judgment arguing that the trial court failed to hold a competency hearing in direct violation of SDCL 23A-7-16. The habeas court determined that no genuine issues of material fact existed, but still denied the motion because the issue was a procedural defect, not a jurisdictional defect, and, therefore, could not be raised on habeas.

[¶ 11.] In November of 1998, Dr. David Bean, a psychiatric expert, was appointed to evaluate Rennich’s “mental competency in 1996 during the various stages of the underlying legal [and] criminal proceedings.” On April 27, 1999, after Rennich received Dr. Bean’s report, she waived all the grounds for habeas relief except the issue within the motion for summary judgment. The writ was subsequently quashed and a certificate of probable cause was issued. Rennich appeals the habeas court’s denial of her motion for summary judgment.

STANDARD OF REVIEW

[¶ 12.] Our standard of review for a habeas appeal is well established.

Habeas corpus is not a substitute for direct review. Because habeas corpus is a collateral attack upon a final judgment, our scope of review is limited. On habeas review, the petitioner has the initial burden of proof. We review the habeas court’s factual findings under the clearly erroneous standard.

Weddell v. Weber, 2000 SD 3, ¶ 13, 604 N.W.2d 274, 279 (quoting Sund v. Weber, 1998 SD 123, ¶ 12, 588 N.W.2d 223, 225) (other citations omitted)). Questions of law, however, are reviewed de novo. Jenner v. Dooley, 1999 SD 20, ¶ 11, 590 N.W.2d 463, 468.

[¶ 13.] WHETHER A TRIAL COURT’S VIOLATION OF A SUBSTANTIVE STATUTORY PROCEDURE IS SUBJECT TO CHALLENGE IN HABEAS CORPUS PROCEEDINGS.

[¶ 14.] In 1983, the South Dakota Legislature enacted SDCL 23A-7-16, which allowed a defendant to plead guilty but mentally ill. The intent of this legislation was to provide mental health treatment for those individuals whose defense falls short of legal insanity, but who, nevertheless, were in need of treatment for their mental illness. “One does not need to possess a medical degree with a specialty in psychiatry to realize that incarceration of a mentally ill defendant without structured psychiatric care will likely exacerbate the manifestations of his mental illness.” Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106, 1120 (1988). See also People v. Blue, 428 Mich. 684, 411 N.W.2d 451, 455 (1987) (stating the purpose is two-fold: (1) to ensure that mentally ill defendants receive professional treatment while incarcerated; and (2) “to assure the public that a criminally responsible and mentally ill defendant will not be returned to [society] ... without having received necessary psychiatric care after sentencing”).

[¶ 15.] Before accepting a plea of guilty but mentally ill, the legislature requires that the defendant be “examined by a licensed psychiatrist and the court ... examine!] the psychiatric reports.” SDCL 23A-7-16. The trial court is also statutorily required to “hold a hearing on the defendant’s mental condition.... ” Id. “[I]f there is a factual basis on which the court can conclude that the defendant was mentally ill at the time of the offense, the plea shall be accepted.” Id. See also State v. Whitney, 486 N.W.2d 269, 272 (S.D.1992) (stating that the factual basis must justify “a finding that the criminal defendant was mentally ill at the time of the alleged offense.”).

[¶ 16.] The State argues that Rennich is not entitled to habeas corpus relief based on a statutory violation; i.e. that the trial court violated SDCL 23A-7-16 by failing to hold a mental health hearing before accepting Rennich’s pleas of guilty but mentally ill. We disagree.

[¶ 17.] Since at least 1887, grounds on which habeas corpus relief may be granted in South Dakota have been set forth by the legislature. One of those grounds states that habeas relief may be granted when “the process is defective in some substantial form required by law.” SDCL 21-27-16(3).

[¶ 18.] In Security Savings Bank v. Mueller, 308 N.W.2d 761, 762 (S.D.1981), this court was presented with a similar issue. In Security, an order to arrest Mueller was served after docketing the default judgment taken against him. However, SDCL 15-22-9 requires service before docketing the judgment. There was no direct appeal. Mueller filed a habeas petition and argued that service was improper under SDCL 15-22-9. The habeas court denied the writ. In reversing and remanding this decision, this court stated:

Although habeas corpus is not a substitute for direct appeal, appellant may assert jurisdictional errors which renders the first judgment void. In the context of habeas corpus, jurisdictional error is given an expansive construction. Of course, this includes personal and subject matter jurisdiction, but due process violations and compliance with substantive statutory procedures are also subject to challenge in habeas corpus proceedings.

Id. at 762-63 (internal citations omitted) (emphasis added).

[¶ 19.] The United States Supreme Court has also determined that procedural errors so obvious as to result in an unfair hearing may be raised on habeas corpus. In Eagles v. United States ex rel. Samuels, 329 U.S. 304, 315, 67 S.Ct. 313, 319, 91 L.Ed. 308, 316 (1946), the United States Supreme Court stated: “[t]he function of habeas corpus is not to correct a practice but only to ascertain whether the procedure complained of has resulted in an unlawful detention.” Therefore, a petition for a writ of habeas corpus is available to remedy procedural errors made at trial if those procedures are of such a nature or magnitude to render the entire detention unlawful. Id. at 312, 67 S.Ct. at 318, 91 L.Ed. at 315.

[¶ 20.] Consequently, the issue is whether the trial court’s failure to comply with SDCL 23A-7-16 is a substantive procedural error that resulted in an unlawful detention.

[¶ 21.] The failure to conduct a mental health hearing, as required by SDCL 23A-7-16, is not a mere irregularity. See our recent case of State v. Anderson, 2000 SD 8, ¶¶ 19-21, 604 N.W.2d 482, 486-87 (reversing and remanding Anderson’s conviction for failure to comply with SDCL 23A-7-16). The trial court must conduct the hearing before the plea of guilty but mentally ill can even be accepted. By express statutory terms, the hearing and assessment process is mandatory and automatically triggered once the defendant attempts to enter a plea of guilty but mentally ill. The hearing cannot be waived or ignored. See Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949, 951 (1966) (holding that “the court, sua sponte, was required to order a competency hearing. The failure of the defendant to request that hearing did not ‘waive’ his right.”). “[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ h[er] right to have the court determine h[er] capacity to stand trial.” Id. (quoting Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815, 821 (1966) (citing Taylor v. United States, 282 F.2d 16, 23 (8th Cir.1960)).

[¶ 22.] In determining whether a factual basis for a plea of guilty but mentally ill exists, “the trial court may admit transcripts of testimony, oral testimony, or other sworn statements or tangible evidence which will satisfy the court of the existence of the factual basis for the plea.” Whitney, 486 N.W.2d at 272 (quoting State v. Sutton, 317 N.W.2d 414, 416 (S.D.1982)). Instead of appointing a licensed psychiatrist and holding a hearing to determine Rennich’s mental health, the trial court concluded that a factual basis existed based on reports dated February 13, 1996, March 7-8, 1996 and March 27, 1996. Clearly those reports and documents do not establish that Rennich was mentally ill at the time she allegedly committed these crimes - from May 28 to June 6, 1996. Here, there is no factual basis because the prior evaluations of mental illness were not brought current to the time period when the crimes were committed. Nor does this review, if any, of un-sworn documentary evidence constitute a hearing: “the mere consideration of a report moving across one’s desk, is not a hearing.” Commonwealth v. Davis, 531 Pa. 272, 612 A.2d 426, 429 (1992) (citation omitted). In failing to conduct the hearing, the trial court failed to perform its statutory responsibility to conduct an independent and meaningful procedure to timely and fully evaluate Rennich’s mental health.

[¶ 23.] We determine that the failure to hold this mandatory hearing was “defective in [a] substantial form required by law.” SDCL 21-27-16(3). This defect resulted in the unlawful detention of Ren-nich. Therefore, we reverse the habeas court’s denial of Rennich’s motion for summary judgment and remand so that Rennich can be evaluated by a licensed psychiatrist and a hearing can be held to determine whether she was mentally ill at the time these criminal offenses were committed.

[¶ 24.] AMUNDSON, Justice, concurs.

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

26.] KONENKAMP and GILBERTSON, Justices, dissent.

MILLER, Chief Justice

(concurring specially)

[¶ 27.] I totally agree with Justice Ko-nenkamp that a person on parole is not entitled to bring a habeas corpus petition. However, if there is any evidence that such person is being physically confined or otherwise restrained of her liberty, then a habeas action is warranted. Because the scant record evidence indicates that Ren-nich may in fact be physically confined to the Kingsbury Manor, I concur with the majority opinion.

[¶ 28.] Although Rennich was ostensibly paroled, a condition of her parole agreement specifically states that she is to be “confined to the Kingsbury Memorial Man- or for medical assistance and care.” This provision implies the State intended that Rennich would remain within the facility; accordingly, such a condition was a restraint on her freedom. Additional support for this conclusion lies in the fact that the State has never argued Rennich was not in custody. In fact, Rennieh’s motion for transport to her habeas hearing, which “move[d] the court to allow [her] to attend the hearing,” was denied. This also suggests that Rennich’s freedom was restrained by the State, notwithstanding her status as a parolee.

[¶ 29.] Because there was evidence that Rennich was “confined” by the State, a habeas petition was an appropriate vehicle with which to reach the merits of the case.

KONENKAMP, Justice

(dissenting).

[¶ 30.] We do not have authority to hear this habeas appeal because the Governor commuted the petitioner’s sentence and she was placed on parole. Our statutes provide that habeas petitioners are not entitled to relief unless they are “committed or detained, imprisoned or restrained” of their liberty. SDCL 21-27-1. Habeas petitioners must specify in their petitions the facts concerning their detention and in whose custody they are detained. SDCL 21-27-3. The petitioner is certainly not in the custody of the one she alleges, respondent Duane Russell, the warden of the women’s penitentiary. A writ issued to him would have no effect as he cannot deliver her or release her.

[¶ 31.] Concededly, parolees remain in the legal custody of the Department of Corrections and subject to the authority of the Board of Pardons and Paroles until their sentences expire. Nonetheless, parolees are not “imprisoned” or “detained” in physical custody and may not be placed back in prison unless they violate the conditions of their parole. People ex rel. Williams v. Morris, 44 Ill.App.3d 39, 2 Ill.Dec. 631, 357 N.E.2d 851, 853 (1976) (“Considering the history and nature of habeas corpus, we believe that actual custody is necessary for maintaining this action.”). Furthermore, the petitioner is in no danger of losing her parole status. No one alleges that she has violated her parole conditions and she is not awaiting parole revocation proceedings.

[¶ 32.] Other states have held likewise, although there is a split of authority on whether parolees can maintain a state ha-beas corpus action. See Andrea G. Nadel, J.D., When is a Person in Custody of Governmental Authorities for Purpose of Exercise of State Remedy of Habeas Corpus — Modem Cases, 26 A.L.R.4th 455 (1983). However, the better reasoned decisions hold that persons on parole no longer have their liberty restrained to such a degree that they are entitled to the extraordinary relief afforded through ha-beas corpus proceedings. People ex rel. Wilder v. Markley, 26 N.Y.2d 648, 307 N.Y.S.2d 672, 255 N.E.2d 784 (N.Y.1970). See In re Painter, 85 S.D. 156, 179 N.W.2d 12, 13 (1970) (person free on bond not eligible fof habeas relief).

[¶ 33.] The petitioner may have other remedies to challenge her conviction, but because she has been released from prison, habeas corpus is not a proper remedy. I would dismiss the petition.

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

      . The State also argues that Rennich waived this issue for two reasons. First, the State claims that prior to the arraignment, Rennich agreed to the State's use of these documents to establish a factual basis for her mental illness. Second, Rennich did not object to the trial court’s failure to hold a hearing before accepting her plea.

      . The posttraumatic stress disorder diagnosis stems from her being raped by an unknown assailant on April 7, 1993. Prior to the rape, family members and friends describe Rennich as a wonderful single-parent of three children who was attending Huron University. After the rape, her mental and physical condition deteriorated. Her family and friends stated that her criminal behavior was extremely "uncharacteristic.” She also developed an eating disorder and a gambling addiction. She attempted suicide seven times in four and one-half years.

      .She was apparently in jail for an unrelated offense.

      . While in prison, Rennich developed a debilitating illness, reflex sympathetic dystrophy, which left her confined to a wheelchair. Consequently, the degree of care that she required was beyond that offered in the women’s prison. Therefore, on October 1, 1998, Governor Janklow commuted Rennich’s sentence conditioned on her signing a parole agreement with the Board of Pardons and Paroles. Pursuant to the agreement, Rennich is confined to the Kingsbury Memorial Manor in Lake Preston, South Dakota for medical assistance and care, subject to the usual terms and conditions of parole.
      The following demonstrates some of the limitations of her parole: On October 16, 1998, Rennich formally requested that she be released from the Kingsbury Manor to attend the hearing on her Motion for Summary Judgment. The request, directed to the habeas court, involved the sheriff transporting her to the courthouse. The habeas court denied her request. Because Rennich is clearly under the custody and control of the State, this habeas action is not moot. See SDCL 21-27-1; Moeller v. Solem, 363 N.W.2d 412, 414 (S.D.1985) (holding that habeas corpus relief is available only to persons who are "committed, detained, imprisoned ... or otherwise restrained of [their] liberty[.]”).
      In Moeller, the petitioner had completed his sentence and was attempting to get his conviction declared "null and void.’’ In deciding whether the appeal was moot, we stated that "[a] case is moot when judgment, if rendered, will have no practical legal effect upon the existing controversy." Id. at 413. Because Moeller was not imprisoned or restrained of his liberty, the appeal was declared moot. Rennich’s situation is substantially different from Moel-ler’s because Rennich is under the control of the State, is in custody and her liberty is restrained by the State and our determination will have a substantial legal effect on-the existing controversy.

      . Mental illness is defined by SDCL 22-1-2(24) as:
      [A] substantial psychiatric disorder of thought, mood or behavior which affects a person at the time of the commission of the offense and which impairs a person’s judgment, but not to the extent that he is incapable of knowing the wrongfulness of his act. Mental illness does not include abnormalities manifested only be repeated criminal or otherwise antisocial conduct.

      . The State argues that the cases of Gross and Everitt support its argument that this issue can not be raised in habeas. However, the issue in both of these cases was whether there was a sufficient factual basis presented during the mental health hearing to support the trial court's acceptance of the plea of guilty but mentally ill. Gross v. Solem, 446 N.W.2d 49, 51 (S.D.1989); Everitt v. Solem, 412 N.W.2d 119, 120 (S.D.1987). Here, the issue is substantially different because there was no hearing. Therefore, these cases do not control.


source: Caselaw Access Project

author: GILBERTSON, Justice.

license: Public Domain

text:
    2000 SD 50
    STATE of South Dakota, Plaintiff and Appellee, v. Jared James SCHWEBACH, Defendant and Appellant.
    No. 21120.
    Supreme Court of South Dakota.
    Considered on Briefs March 21, 2000.
    Decided April 12, 2000.
    Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    David Alan Palmer, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   GILBERTSON, Justice.

[¶ 1.] Defendant Jared James Schwe-bach (Schwebach) appeals the portion of the circuit court’s sentence revoking his driver’s license for life as a part of his criminal sentence for vehicular homicide. Because such a revocation is not authorized by statute, we reverse.

FACTS AND PROCEDURE

[¶ 2.] On January 29, 1998, Schwebach spent his afternoon drinking alcohol at a bar. A friend who was concerned about his intoxication drove Schwebach home. Despite his intoxicated state, Schwebach left his home in his pickup, driving at a high rate of speed. At approximately 8:02 p.m., his pickup collided head-on with a vehicle containing two high school students, Eric Scharenbroich and Angela Ro-zeboom, at a bridge near Brandon, South Dakota. Both Scharenbroich and Roze-boom were killed. Schwebach’s blood alcohol level an hour and a half after the accident was 0.18%.

[¶ 3.] Schwebach had no history of prior convictions of driving under the influence of alcohol, but had been involved in various misdemeanor and traffic offenses, including exhibition driving, alcohol violations, and leaving the scene of an accident.

[¶ 4.] He was subsequently charged by indictment with two counts of vehicular homicide pursuant to SDCL 22-16-41. On February 5, 1998, the grand jury returned the indictment accusing Schwebach of the two identical counts of vehicular homicide. He entered not guilty pleas to the two counts.

[¶ 5.] On May 15, 1998, Schwebach changed his pleas to guilty on both counts of vehicular homicide. On July 29, 1998, the circuit court sentenced him to serve twelve and a half years in the state penitentiary on each count, to be served consecutively. Additionally, the circuit court revoked Schwebach’s driver’s license for life. Schwebach filed a Motion to Correct and Reduce Sentence on June 30, 1999, upon which a hearing was held on July 14, 1999. He argued the revocation of his driver’s license for life constituted an illegal sentence. The circuit court denied the motion. Schwebach now appeals the revocation of his driver’s license but not the prison portion of his sentence.

ANALYSIS AND DECISION

[¶ 6.] Schwebach argues that the circuit court lacked statutory authority to revoke his driver’s license for the rest of his life. The State agrees, stating in its appellate brief, “[t]he Office of the Attorney General, after legal research and consultation with the Minnehaha County State’s Attorney’s Office, agrees with [Schwebach] that the trial court erred in refusing to comply with ... SDCL 22-16-41.... ” Thus, State concedes error.

[¶ 7.] SDCL 22-16-41 provides:

Any person who, while under the influence of an alcoholic beverage, any controlled drug or substance, or a combination thereof, without design to effect death, operates or drives a motor vehicle of any kind in a negligent manner and thereby causes the death of another person, including an unborn child, is guilty of vehicular homicide. Vehicular homicide is a Class 3 felony. In addition to any other penalty prescribed by law, the court may also order that the driver’s license of any person convicted of vehicular homicide be revoked for a period of two years subsequent to release from incarceration, (emphasis added).

This statute plainly limits the authority of circuit courts to revoke driving privileges in vehicular homicide cases for a period of two years subsequent to release from incarceration. “When the language in a statute is clear, certain and unambiguous, there is no occasion for construction, and this [C]ourt’s only function is to declare the meaning as clearly expressed in the statute.” State v. Davis, 1999 SD 98, ¶ 7, 598 N.W.2d 535, 537.

[¶ 8.] A penalty must be authorized by law. 21 Am.Jur.2d Criminal Law § 336. Schwebach pled guilty to vehicular homicide. Thus, pursuant to SDCL 22-16-41, the maximum period for revocation of a driver’s license is two years subsequent to release from incarceration. As the language of SDCL 22-16-41 is clear, we find the circuit court exceeded its statutory authority in revoking Schwebach’s driver’s license for life, as there is no language in SDCL 22-16-41 authorizing such a penalty. Accordingly, that portion of the circuit court’s sentence revoking Sehwebach’s driver’s license for life is reversed and remanded for resentencing.

[¶ 9.] Reversed and remanded for proceedings consistent with this opinion.

[¶ 10.] MILLER, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

       We note that the 2000 Legislature enacted Senate Bill No. 22 which modifies the driver’s license revocation period for vehicular homicide. This enactment amends SDCL 22-16-41 to read, in pertinent part: "In addition to any other penalty prescribed by law, the court may also order that the driver's license of any person convicted of vehicular homicide be revoked for such period of time as may be determined by the court.” However, until this bill becomes law on July 1, 2000, the courts of this state are bound by the plain language of the current version of SDCL 22-16-41.


author: WILBUR, Circuit Judge.

text:
    2000 SD 48
    Juanita ENGER, Claimant and Appellee, v. FMC, Employer and Appellant, and National Union Fire Insurance Company, Insurer and Appellant.
    Nos. 20976, 20977.
    Supreme Court of South Dakota.
    Considered on Briefs Dec. 1, 1999.
    Decided April 12, 2000.
    Rehearing Denied May 16, 2000.

      Drew C. Johnson of Johnson Law Office, Aberdeen, South Dakota, for claimant and appellee.
    Mark J. Welter of Woods, Fuller, Shultz & Smith, Sioux Falls, for employer, insurer and appellants.
   WILBUR, Circuit Judge.

[¶ 1.] FMC and its worker’s compensation insurer, National Union Fire Insurance Company, appeal the circuit court’s determination that Juanita Enger (Enger) is entitled to a partial lump sum payment of benefits for attorney fees. Enger appeals the circuit court’s determination denying her request for total lump sum benefits and other benefits. We affirm.

FACTS

[¶ 2.] Enger began employment with FMC in November 1988 as a shop technician. FMC, a defense contractor, builds missile canisters for the federal government. In late 1991 and early 1992, Enger started experiencing pain in both hands and sought medical treatment. She was diagnosed with bilateral carpal tunnel syndrome in January 1993 and underwent two surgeries the following month to help relieve the problem. She went back to work at the beginning of April 1993, and was diagnosed with ulnar nerve palsy in her left elbow approximately three weeks later. She underwent surgery for that condition in May 1993.

[¶ 3.] Enger was laid off work at FMC in December 1993 due to economic reasons. Also in December, Dr. Hoversten gave Enger an impairment rating for permanent partial disability. During 1994, En-ger attended college, worked at Wal-Mart for three weeks, then worked at Super 8 for three months. She was taken off work indefinitely by Dr. Holte on December 14, 1994.

[¶ 4.] On April 3, 1996, the Department of Labor (Department) determined that Enger was permanently totally disabled. The circuit court upheld the Department’s decision and this Court affirmed on appeal. Enger v. FMC, 1997 SD 70, 565 N.W.2d 79. Thereafter, Enger filed a petition with the Department seeking (1) total lump sum payment of benefits, (2) partial lump sum payment for attorney fees, and (3) a correction of the amount of unpaid benefits owed by FMC. After a hearing in October 1997, the Department ruled against Enger on all issues in a decision dated August 19, 1998.

[¶ 5.] The circuit court affirmed the denial of total lump sum benefits and unpaid benefits, but reversed the denial of a partial lump sum payment of attorney fees and remanded for the Department to make findings consistent with its decision on the partial lump sum issue. FMC and its insurer appeal the partial lump sum issue, and Enger, by notice of review, appeals the total lump sum benefits and unpaid benefit issues.

STANDARD OF REVIEW

[1,2] [¶ 6.] This case involves questions of fact, questions of law, and mixed questions of law and fact. Questions' of fact are subject to clearly erroneous review. A decision is clearly erroneous if, after reviewing the entire record, the reviewing court is left with a definite and firm conviction that a mistake has been made. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228.

[¶ 7.] Questions of law and mixed questions of law and fact, on the other hand, are subject to different standards. Questions of law are subject to de novo review; no deference is given to an agency’s conclusions of law. Thomas v. Custer State Hospital, 511 N.W.2d 576, 579 (S.D.1994). When the issue involves a question of mixed law and fact requiring the application of a legal standard, the Court will treat the issue as a question of law subject to de novo review. Permann v. Dep’t of Labor, 411 N.W.2d 113, 119 (S.D.1987).

ANALYSIS AND DECISION

[¶ 8.] 1. Whether a total lump sum payment of benefits is in Enger’s best interests under SDCL 62-7-6.

[¶ 9.] Generally, for any worker’s compensation claim, the law in effect at the time of the injury controls. Therefore, the law in effect in January 1993 is relied upon in this case. The version of SDCL 62-7-6 that was in effect in January 1993 and that' applies to Enger’s claim was enacted in 1983. See ¶ 21, infra. That statute requires a determination be made that a lump sum payment is in a claimant’s “best interests.”

[¶ 10.] The circuit court affirmed the Department’s determination that a total lump sum payment of benefits was not in Enger’s “best interests” under SDCL 62-7-6. Enger’s appeal of this determination involves a mixed question of law and fact. Since this issue is a mixed law-fact question and requires us to apply the “best interests” standard, we will treat the issue as a question of law and freely review the issue.

[¶ 11.] In regard to this mixed factual and legal issue, it is important to note that the general rule in South Dakota does not favor lump sum awards. As stated by this Court, “the allowance of a lump-sum award is the exception and not the general rule.” Wulff v. Swanson, 69 S.D. 539, 543, 12 N.W.2d 553, 555 (1944). Larson explains the rationale behind this policy:

Since compensation is a segment of a total income insurance system, it ordinarily does its share of the job only if it can be depended on to supply periodic income benefits replacing a portion of lost earnings. If a ... totally disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the workman is right back where he would have been if workmen’s compensation had never existed.

8 Larson’s Worker’s Compensation Law, § 82.71 (1999).

[¶ 12.] Despite this general rule against lump sum awards, Larson points out that the remedy can work in certain circumstances:

The only solution lies in conscientious administration, with unrelenting insistence that lump-summing be restricted to those exceptional cases in which it can be demonstrated that the purpose of the Act will best be served by a lump sum award.

Id

[¶ 13.] Under the 1983 version of SDCL 62-7-6, the South Dakota legislature restricted lump sum awards to those situations in which it is in the claimant’s “best interests.” This Court has identified four factors for defining these “best interests:”

1. Age, education, mental and physical condition, and actual life expectancy.
Family circumstances, living arrangements, and responsibilities to dependents. 2.
3. Financial condition, including all sources of income, debts and living expenses.
4. Reasonableness of plan for investing the lump sum proceeds and ability to manage invested funds or arrangement for management by others.

Thomas, 511 N.W.2d at 580. Evidence regarding these factors was presented at the administrative hearing. Upon application of these factors to the facts established at the administrative hearing, we hold that neither the Department nor the circuit court erred, as a matter of law, in concluding that a lump sum was not in Enger’s best interests.

[¶ 14.] The most troubling aspect of En-ger’s financial plan, as recognized by the Department, is that it sees only to her immediate needs or to improving her short-term standard of living. Once this money is spent, claimant will only have a minimal amount left to either invest or spend on living expenses. Enger proffered no evidence relating to annuities or other investment vehicles which would guarantee her a future stream of income for life, and it is highly doubtful she could live on her social security disability benefits of $592 per month should her husband’s income abruptly end. In addition, while it may be true that buying a home will theoretically provide $6,000 in annual savings to Enger, this is not a steady stream of income as envisioned by the worker’s compensation law. It seems that in order to profit from her investment should the need arise, Enger would have to put her property on the market, and as FMC points out, she presented no evidence of how her property might fare on that market. Therefore, the conclusion that Enger’s lump sum plan was not in her best interests is affirmed.

[¶ 15.] 2. Whether Enger is entitled to additional permanent partial disability payments plus interest from January 1, 1994 to December 14, 1994.

[¶ 16.] There is no indication that Enger raised the issue of permanent partial disability benefits before the Department at either hearing in this matter. The Department’s findings and decision after the October 1997 hearing specifically addressed temporary total disability payments, but never specifically mentioned permanent partial disability issues. Although the civil rules of procedure are not applicable, the need to present an issue to the decision-maker is inherent in administrative proceedings. Given the absence of any proposed findings of fact or conclusions of law by Enger relating to the alleged permanent partial disability payments, Enger waived this argument. See SDCL 15-6-52(a).

[¶ 17.] 3. Whether the partial lump sum payment of attorney fees was authorized under SDCL 62-7-6.

[¶ 18.] This issue, raised by FMC, concerns the Department’s authority to order a partial lump sum payment for attorney fees under the 1983 version of SDCL 62-7-6. The Department determined that it lacked such authority under the 1983 version of the statute. The circuit court reversed, holding that a partial lump sum for attorney fees was allowable under either the 1983 or the 1993 version of SDCL 62-7-6. Because this is a legal question, this Court uses de novo review.

[¶ 19.] The question is whether the legislature intended the 1983 amendment to 62-7-6 to prohibit partial lump sum payments for attorney fees. The circuit court relied on Thomas to authorize partial lump sum payments under the 1983 version. It reasoned that even if this Court erred in quoting the July 1, 1993 version for a pre-July 1, 1993 injury in Thomas, our affir-mance of a lump sum award which included attorney fees indicated that partial lump sums were authorized under the 1983 version.

[¶ 20.] However, as with the total lump sum issue, there is no indication that the parties briefed or argued the application of the 1993 version of the statute to the partial lump sum issue in Thomas. The only clear issue in that case was whether the portion of the lump sum award sought for a trip to Korea was in Thomas’ best interests.

[¶ 21.] Therefore, the partial lump sum issue turns on amendments to SDCL 62-7-6. In 1978, the statute began as follows, “[a]n employer or employee who desires to have compensation, or any unpaid, part thereof, paid in a lump sum may petition the Department.” SL 1978 ch. 370, § 18 (emphasis added). In 1983, as part of a comprehensive revision of all statutes containing a reference to statutory interest rates, SDCL 62-7-6 was amended. The 1983 amendment removed the reference to a specific interest rate that was to be used to calculate an equivalent lump sum amount. As part of that 1983 revision, the language “or any unpaid part thereof’ was removed, and replaced by the words “any unpaid” preceding “compensation.” SL 1983 ch. 28, § 68. Thus, the 1983 version of 62-7-6 provided:

An employer or employee who desires to have any unpaid compensation paid in a lump sum may petition the department of labor asking that the compensation be paid in that manner. If, upon proper notice to interested parties and proper showing before the department, it appears in the best interests of the employee that the compensation be paid in lump sum, the secretary of labor may order the commutation of the compensation to an equivalent lump-sum amount. That amount shall equal the total sum of the probable future payments capitalized at their present value on the basis of interest calculated at a rate per year set by department rule or regulation with annual rests. In cases where there is complete disability, no petition for commutation to lump-sum basis may be entertained by the department until six months after the date of injury. Any compensation due to beneficiaries under §§ 62-4-12 to 62-4-22, inclusive, may not be paid in a lump sum except for the remarriage lump sum provided in § 62-4-12.

SL 1983 ch. 28, § 68 (emphasis added).

[¶ 22.] “[W]hen the language of a statute is clear, certain and unambiguous there is no need of statutory construction and the only function of the court is to declare the meaning of the statute as expressed.” Ellis v. City of Yankton, 526 N.W.2d 124, 126 (S.D.1995). According to this rule, it is clear that when the legislature amended SDCL 62-7-6 in 1983, it did not intend to modify, revise or alter anything other than the reference to the interest rate to be utilized in determining the present value of benefits for the purpose of establishing a lump sum benefit. The other changes made to the statute at that time were no more than style and form changes.

[¶ 23.] The 1983 version of SDCL 62-7-6 clearly contemplates that some or all compensation may be paid in a lump sum payment. By substituting “any unpaid” for “or any unpaid part thereof,” the legislature made no substantial change regarding the practice of allowing a partial lump sum payment for attorney fees if it is established that such a payment is in a claimant’s best interests. We affirm the circuit court’s decision and hold that a partial lump sum payment for attorney fees is allowed under the 1983 version of SDCL 62-7-6.

[¶ 24.] 4. Whether the circuit court was in a position to hold that a partial lump sum payment for attorney fees was in Enger’s best interests.

[¶ 25.] FMC claims this Court must remand on whether the partial lump sum was in Enger’s best interests because the circuit court erred in entering findings that a partial lump sum payment for attorney fees was in Enger’s best interests. As stated above, the Department held it did not have statutory authority to award a partial lump sum. Nevertheless, the circuit court entered findings and conclusions that a partial lump sum for attorney fees was in Enger’s “best interest” and is a “just and due debt.”

[¶ 26.] FMC argues the circuit court was without authority to enter findings of fact on an issue not decided by the Department. That argument assumes this is an issue of fact rather than one involving a mixed law-fact question. The outcome of this issue depends upon the determination of Enger’s best interests. There is no factual dispute about Enger’s financial circumstances. There is a dispute between the parties about the application of the legal standard to the undisputed facts.

[¶ 27.] Again, as with the total lump sum issue, this issue presents a mixed question of law and fact which requires application of the legal standard of best interests to established facts. Because this is primarily a legal question, this Court reviews the matter de novo.

[¶ 28.] Unlike the total lump sum issue, there is no dispute that Enger’s financial circumstances warrant a partial lump sum payment for attorney fees. The evidence presented at the hearing clearly indicates that Enger has no way to pay her attorney fees without a partial lump sum payment.

[¶ 29.] There are clear differences between Enger’s plan for a total lump sum and a partial lump sum. The purpose of the Act is to provide a steady stream of reliable income, and Enger’s plan for a total lump sum payment, as noted above, does not serve this purpose. However, the purpose of a partial lump sum for attorney fees is to assure that claimants will be able to employ competent legal representation to secure all compensation to which they are legally entitled. This purpose is certainly advanced by allowing claimants such as Enger, who are financially unable to pay their attorney fees, to pay this debt in a lump sum. The Department entered extensive findings of fact regarding Enger’s financial situation. The circuit court, relying on those findings, concluded as a matter of law that a partial lump sum payment for attorney fees was in Enger’s best interests. Though we are not bound by its decision, we agree with the circuit court’s determination that, as a matter of law, based on the Department’s findings, a partial lump sum payment for attorney fees is in Enger’s best interests.

[¶ 30.] We affirm the circuit court’s decision.

[¶ 31.] MILLER, Chief Justice, AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 32.] WILBUR, Circuit Judge, for SABERS, Justice, disqualified.

      . Normally, the decision to apply the date-of-injury version of a worker’s compensation statute would not be a concern on appeal. However, regarding SDCL 62-7-6, this Court has quoted the July 1, 1993 version of SDCL 62-7-6 in two cases involving injuries that occurred prior to July 1, 1993. See Thomas, 511 N.W.2d 576; Stanton v. Hills Materials Co., 1996 SD 109, 553 N.W.2d 793. The issue of which version of SDCL 62-7-6 applied in those cases was not briefed or presented to the court. Therefore, Thomas and Stanton provide no guidance in this case as to which version of the statute applies.

      . Larson also points out that "[e]nough experience has been gained by now to prove that a broad statutory requirement such as ... the best interest of the worker is no guarantee against abuse of the practice.” 8 Larson’s at § 82.71. He further states that lump sums should be allowed only when they would be in the best interests to rehabilitate the worker. Id. However, until such time as the legislature revises the best interests stahdard, we are bound to apply that standard.

      . The parties to this action concede that under either the 1978 or 1993 version of SDCL 62-7-6 the Department may authorize a partial lump sum payment for attorney fees.


author: GILBERTSON, Justice SABERS, Justice AMUNDSON, Justice

text:
    2000 SD 53
    Erin Colleen HART, Plaintiff and Appellant, v. Ronald MILLER, Jim Jones, Paul Christensen, Warren Anderson, Les Sterling, Tom Dravland, Gene Abdallah, and Various John Does, Defendants and Appellees.
    No. 20947.
    Supreme Court of South Dakota.
    Argued Dec. 2, 1999.
    Decided April 19, 2000.

      Michael D. Bornitz and Timothy L. James of James & Associates, Yankton, South Dakota, Attorneys for plaintiff and appellant.
    Craig A. Kennedy and Alice L. Rokahr of Doyle and Kennedy, Yankton, South Dakota, Attorneys for defendant and ap-pellee Miller.
    Brent A. Wilbur and Neil Fulton of May, Adam, Gerdes and Thompson, Pierre, South Dakota, Attorneys for defendants and appellees Jones, Cristensen, Anderson, Sterling, Dravland, Abdallah and various John Does.
   GILBERTSON, Justice

[¶ 1.] Plaintiff Erin Colleen Hart (Hart) appeals an order granting the motions for summary judgment of Defendants Ronald Miller (Miller) and Miller’s supervisors (Supervisors) on Hart’s 42 U.S.C. § 1983 claim and other state claims. Hart appeals. We affirm in part and reverse in part.

FACTS AND PROCEDURE

[¶ 2.] On February 17, 1996, at approximately 1:00 a.m., Hart left the 8 th Street Pub in Yankton, South Dakota where she had been working. Hart was stopped and subsequently arrested by South Dakota Highway Patrolman Miller for running a stop sign, speeding, possession of drug paraphernalia, and driving under the influence of alcohol. Hart was then transported in Miller’s patrol vehicle to the Yankton Police Department where she was processed and released.

[¶ 3.] Typically, after every physical arrest, Miller performed a search of his patrol car for contraband. However, on February 17, shortly after his contact with Hart, he was called to respond to a motor vehicle accident. Another officer sitting in Miller’s patrol car discovered a baggie of marijuana in the passenger side door of the car. Miller believed the marijuana came from the person who was last in his patrol car prior to the officer’s discovery. According to Miller, this would have been Hart.

[¶ 4.] On February 18, 1996, Miller attempted unsuccessfully to contact Hart several times through the Yankton Police Department as it is the officer’s responsibility to follow-up and conduct an investigation during his or her own work shift. At approximately 10:00 p.m., Miller went to Hart’s apartment complex to see if she was home, but got no response. A Yank-ton Police Department dispatcher subsequently made telephone contact with Hart around 11:30 p.m. or 11:40 p.m. The dispatcher informed Hart that Miller had something he had to give her. Hart replied she was in bed and would come to the police station in the morning to retrieve the item. Hart was then told Miller would come to her residence and speak with her there. When Miller arrived at Hart’s apartment, he knocked and Hart consented to his entry into her apartment. Miller showed Hart the baggie of marijuana from his vehicle and inquired whether it belonged to her. Hart denied ownership of the marijuana. Miller did not accept her denial, and indicated he would turn the matter over to the State Division of Criminal Investigation. After approximately ten to fifteen minutes -of hostile conversation and questioning, Miller left Hart’s apartment when she told him to “get out of my apartment.”

[¶ 5.] Hart claims Miller entered her apartment in an attempt to coerce her into having sex with him. Hart claims following her denial of ownership of the marijuana, Miller began advancing toward her and “backing her across the room.” Hart testified at her deposition that as Miller was backing her across the room, he was continuously accusing her of being the owner of the marijuana and accusing her of lying. According to Hart, Miller backed her across the room until she was pushed against a television. She also claims that during this time Miller was looking her up and down in a sexually provocative manner, and asked her what they were going to do about the marijuana. Hart claims she was under the impression that Miller was suggesting if she engaged in sexual activity with him, any legal problems with the marijuana would disappear. Hart claims it was only after she made it clear she would not engage in any sexual activity that Miller left her apartment.

[¶ 6.] Miller strenuously denies any improper conduct towards Hart. It is undisputed that Miller never touched Hart, never specifically mentioned sex, and did not overtly threaten her in any way.

[¶ 7.] Hart further claims that approximately two weeks later, on March 2, 1996, Miller approached her in his patrol vehicle while she was walking home at 1:00 a.m. Hart alleges Miller approached her from behind, then did a U-turn and came back to ask her where she was going. Hart responded she was heading home and Miller then left the area. Miller also denies this incident.

[¶ 8.] Hart subsequently filed her complaint in the First Judicial Circuit against Miller alleging false imprisonment, assault, invasion of privacy, negligent and intentional infliction of emotional distress, and violation of her civil rights under 42 U.S.C. § 1983. Hart filed an action against Supervisors based upon conspiracy, negligent retention and supervision, and violation of her civil rights under 42 U.S.C. § 1983. Miller made a motion for summary judgment, while Supervisors fíléd a motion to dismiss. The trial court gave a notice of intent to treat the motion to dismiss as a motion for summary judgment pursuant to SDCL 15 — 6—12(b). The order granting summary judgment was entered on January 22,1999.

[¶ 9.] Hart appeals raising the following issues for our consideration:

1. Whether the trial court erred in granting summary judgment to Miller on Hart’s § 1983 claim.
2. Whether the trial court erred in granting summary judgment to Supervisors on Hart’s § 1983 claim.
3. Whether the trial court erred in granting summary judgment to Mil- “ ler on Hart’s state law claims.
4. Whether the trial court erred in granting summary judgment to Supervisors on Hart’s state law claims of conspiracy and negligent supervision.

STANDARD OF REVIEW

[¶ 10.] Our standard of review for a trial court’s grant of a motion for summary judgment is well settled. As we recently stated in Mattson v. Rachetto:

Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, to7 gether with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968).

1999 SD 51, ¶ 8, 591 N.W.2d 814, 817 (quoting Estate of Shuck v. Perkins County, 1998 SD 32, ¶ 6, 577 N.W.2d 584, 586). Summary judgment is a preferred process to dispose of meritless claims. Horne v. Crozier, 1997 SD 65, ¶ 5, 565 N.W.2d 50, 52.

[¶ 11.] Whether Miller and Supervisors are shielded by sovereign immunity is a question of law, reviewed de novo, with no deference given to the trial court’s legal conclusions. Hansen v. S.D. Dept. of Transp., 1998 SD 109, ¶ 7, 584 N.W.2d 881, 883 (citing Wilson v. Hogan, 473 N.W.2d 492, 493 (S.D.1991)).

ANALYSIS AND DECISION

[¶ 12.] 1. Whether the trial court erred in granting summary judgment to Miller on Hart’s § 1983 claim.

[¶ 13.] In its grant of summary judgment, the trial court found both Miller and Supervisors were protected by the doctrine of qualified immunity. This Court has recently addressed qualified immunity of a law enforcement officer under § 1983 claims, and the applicability of summary judgment to this type of case. In Home, we stated:

Qualified immunity is a legal question to be decided by the court; thus, it is particularly amenable to summary judgment. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589, 595 (1991)(per curiam). The Supreme Court has emphasized that “because ‘[t]he entitlement is an immunity from suit rather than a mere defense to liability,’ Mitchell v. Forsyth, 472 U.S. 511, 526[, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411] (1985), we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id. To find whether qualified immunity applies, the test is to ask if the officer’s conduct violated clearly established statutory or constitutional rights a reasonable officer would have known at the time. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982); see also Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523, 530 (1987); Gainor v. Rogers, 973 F.2d 1379, 1382 (8th Cir.1992). This “objective legal reasonableness” standard means “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039, 97 L.Ed.2d at 531; Hafner v. Delano, 520 N.W.2d 587, 591 (S.D.1994). Qualified immunity is a personal defense. Hafner, 520 N.W.2d at 591. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).

1997 SD 65, ¶ 6, 565 N.W.2d at 52-53.

[¶ 14.] This Court has also recently stated:

[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action, assessed in light of the legal rules that were “clearly established” at the time it was taken.
[0]ur cases establish that the right the official is alleged to have violated must have been “clearly established” in [the following] sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of preexisting law the unlawfulness must be apparent, (citations omitted).

Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 27, 580 N.W.2d 606, 612 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. at 3039, 97 L.Ed.2d at 530-31). See also Gainor, 973 F.2d at 1382 (“This [qualified immunity analysis] allows ample room for a good faith mistake by the officer since his conduct must be measured in terms of the belief of a reasonable officer based upon the facts then available to the officer”).

[¶ 15.] Were these all the facts of this case, there would be immunity for Miller, as his investigatory techniques, while perhaps not a model of timing and tact, were within the good faith mistake protection offered by qualified immunity. He clearly had probable cause to investigate the matter. However his ambiguous question, “what were they going to do about [the marijuana]” must be examined in light of his prior conduct. The following are from affidavits and in one instance another lawsuit involving Miller, all of which were considered by the trial court in this case.

[¶ 16.] K.K. testified that in 1986 when she was 15, she was in a car that was stopped by Miller. Miller found a can of beer in K.K.’s possession. K.K. testified Miller ordered the other occupants of the vehicle to leave the area and removed K.K. to his patrol car. K.K. then testified:

Trooper Miller advised me that I would be taken to jail and finger printed. He then asked whether there was anything else we could do to avoid the situation. At that time I began to cry and became very afraid. Trooper Miller made me stand against the car and proceeded to feel up both of my legs to my crotch area. He then rubbed his hand between my breasts. He then rubbed his hand beneath my breasts making physical contact by lifting them ... I was dressed in a top which would make it obvious that there could not have been anything hidden in my breast area,

(emphasis added).

[¶ 17.] T.G. testified by affidavit that when she was a junior in high school in 1993 she was stopped on at least two occasions by Miller. She further testified:

On one occasion I was with two girlfriends when Trooper Miller stopped me on Highway 50 near the South Dakota State Hospital and gave me a speeding ticket. At that time I advised Trooper Miller that my father would be upset about my having received so many tickets. Trooper Miller responded by stating he had a spare bed at his house. Thereafter Trooper Miller followed me on approximately twelve occasions. When he saw me in a vehicle he would turn around and follow me up and down the street.

[¶ 18.] B.S. testified by affidavit that in 1992 Miller stopped her for speeding. B.S. further testified:

Trooper Miller was conversing with me in a manner which caused me to be very uncomfortable. Trooper Miller continued to stare at my body while asking me questions in his vehicle and at one point asked me to turn toward him.
While behind my vehicle, Trooper Miller made implications to the effect that he would void the speeding ticket and let me go in exchange for sexual relations with him. I advised Trooper Miller that I was not going to do that and I left.

[¶ 19.] A.J. testified that Miller stopped her in September of 1993. She claimed he told her she was being stopped because she had out-of-state license plates. Upon questioning by Miller she informed him she was living alone as her husband was serving in the military in Panama. She further testified:

Trooper Miller was conversing with me in an uncomfortable and flirtatious manner. Trooper Miller continued to stare at my body while asking me questions. At that point Trooper Miller was very talkative and appeared to be making conversation in an attempt to prolong the traffic stop even though I had done nothing wrong and my license check indicated no warrants or restrictions. Trooper Miller continued making conversation with me until such time that I advised him that I was coming from work in Yankton where I was employed as a secretary with a local law firm. As soon as I informed him that I was an employee of a law firm his manner changed and he became more professional in demeanor, abruptly terminated the traffic stop and allowed me to go.

[¶ 20.] There is also the complaint of T.P. that resulted in a separate legal action against Miller and his superiors. [T.P.] v. Miller, et. al., Yankton Co. Civ. 94-299. Miller stopped her in 1993 and a bag of marijuana was found in the car in which she was riding. In denying Miller’s motion for summary judgment on claims of intentional infliction of emotional distress and false imprisonment, the [T.P.] trial court summarized T.P.’s deposition testimony as follows:

[T.P.] claims that Miller said that he did not want to take her to jail and that he should give her some option so that the situation could be corrected. Id. at 49. [T.P.] asserts that she believed that the options which Miller was referring to meant sex. Id. [T.P.] also asserts that when asked for options, she told Miller to take her to jail. Id. at 50. [T.P.]stated that Miller told her that if she did not want to go to jail he would have to search her again to make sure that she did not have anymore drugs on her, and that he would have to search her bra. Id. at 51-52
[T.P.] claims that Miller asked her to remove her blouse which she did. Id. at 52. [T.P.] first took off her coat and left that sitting behind her. Id. [T.P.] then unbuttoned her blouse and slipped it off behind her with her coat. Id. at 53. [T.P.] states that she unbuttoned the bra and removed it from her shoulders. Id. at 54. [T.P.] removed the bra so that it was in her hands and her arms were covering her chest. Id. [T.P.] stated that the bra was off for a few seconds before she put it back on. Id. [T.P.] claims that she did not question the search procedure and thought that this was the way they searched a person. Id. at 52.
[T.P.] also claims that while she was putting the bra back on, Miller commented that she had a nice chest and asked if she would mind if he touched it. Id. at 53. [T.P.] replied, “Yes I mind.” Id. at 54. [T.P.] stated that Miller never touched the bra during the search. Id. at 55. (emphasis added).

After discovery, the State settled this suit out of court. The terms of the settlement are unknown. Patrol Superintendent Ab-dallah testified that based on the settlement of this case, he asked for and received Miller’s resignation as a Highway Patrolman.

[¶ 21.] Hart’s basis for imposing liability under § 1983 is premised upon'the manner in which Miller allegedly approached her at her apartment during his investigation. According to Hart, Miller looked at her provocatively, and she inferred from Miller’s actions he wanted sex from her. Although it is undisputed Miller did not physically touch Hart, and she consented to Miller’s entry into her apartment, Miller was quoted by Hart as offering her a trade-off of dismissal of the complaint for sex when he stated, “what are we going to do about it?”

[¶ 22.] At this stage of the proceeding, under summary judgment principles we are required to accept as true the testimony of Hart, K.K., T.G., B.S. and A.J. as well as the testimony of T.P.

[¶ 23.] The first prong of the Home test is whether the conduct of the defendant violated a “clearly established constitutional or statutory right.” 565 N.W.2d at 53. Although not a model of clarity, it appears that Hart claims she was denied the constitutional right of equal protection of the law by being discriminated against upon the basis of her sex.

[¶ 24.] Soliciting sex in exchange for not making an arrest has been found to be a violation of equal protection. Antia v. Thurman, 914 F.Supp. 256 (N.D.Ill.1996). In Antia, a complaint survived a motion to dismiss where it was alleged a law enforcement officer pulled the plaintiff over and detained her for over an hour simply because she was a Hispanic female. Id. at 257. During the stop, she was forced to sit in the patrol car, leaving a four-month-old baby alone in her car. The officer played music on the radio of his patrol car, asked her personal questions, commented on her appearance, and threatened to follow her home and force her to cook for him. The officer also threatened to take her into custody when she expressed concern for leaving her baby alone. During the stop, the officer attempted to force the plaintiff to pick the traffic citation up from his lap, and made a derogatory comment about “Puerto Rican girls” when she refused. Finally, the officer wrote a personal note to the plaintiffs husband on the back of the citation, telling him his wife was beautiful.

[¶ 25.] Hart also claims she has a constitutional right to bodily integrity. Such a right has been recognized under the due process clause. Rogers v. City of Little Rock, 152 F.3d 790, 795 (8th Cir.1998); Jones v. Wellham, 104 F.3d 620, 628 (4th Cir.1997). In Haberthur v. City of Raymore, Missouri, 119 F.3d 720, 723 (8th Cir.1997), the court recognized a due process right to be free of unwelcome “sexual fondling and touching or other egregious sexual contact” by a police officer acting under color of law.

[¶ 26.] The second prong of the Home test requires an examination of the objective reasonableness of Miller’s actions. Horne, 1997 SD 65, ¶ 13, 565 N.W.2d at 54. We must determine whether a reasonable officer would have believed his actions were lawful. Miller’s subjective beliefs about the investigation are irrelevant. Anderson, 483 U.S. at 641, 107 S.Ct. at 3040, 97 L.Ed.2d at 532.

[¶ 27.] Miller was investigating the presence of marijuana found in his patrol car shortly after Hart had been arrested. Investigation into the presence of this marijuana and its ownership was clearly warranted, as Miller stated in his affidavit: “[s]ince I was the original officer who made the arrest, I was required under my training guidelines to follow up the investigation by myself.” However, the unconsented seeking of sexual favors in exchange for ignoring a violation of the criminal law “could not be considered part of any legitimate police function.” Rogers, 152 F.3d at 796. It is an “ ‘arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.’ ” Id. at 797 (citing County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043, 1057 (1998)). The act of solicitation is not rendered proper where there is a lack of accompanying physical force or explicit threats. Such violations can be based on mental coercion of the situation. Id. (citing Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 98 L.Ed. 948 (1954)). A reasonable officer would have known the powers of his office do not include the right to solicit sex from women in exchange for the ignoring of a criminal offense. Id. at 798.

[¶ 28.] The trial court measured Miller’s actions against a standard of objective reasonableness. On this basis, the court found that a reasonable officer in Miller’s position would have believed his actions were lawful and not in violation of Hart’s constitutional rights. However, it failed to focus on whether a question of fact exists as to the meaning of Miller’s question to Hart and the claims of prior misconduct as interpreting the meaning of his ambiguous statement. “[I]n the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039, 97 L.Ed.2d at 531. While Miller could properly question a suspect when circumstances reasonably indicate it is necessary, (see Spenner, 1998 SD 56, ¶ 29, 580 N.W.2d at 613), he was not at liberty to offer immunity from prosecution in exchange for sexual favors.

[¶ 29.] We reverse on this issue and remand for a trial where the jury will judge the credibility of the witnesses as to what really occurred and determine whether Miller’s conduct was for a proper reason or not.

[¶ 30.] 2. Whether the trial court erred in granting summary judgment to Supervisors on Hart’s § 1983 claim.

[¶ 31.] Hart properly alleged in her complaint that all the Supervisors are employees of the South Dakota Highway Patrol. However, Hart’s pleadings in this case do not indicate whether Supervisors were sued in their official capacity; she simply referred to them by them names in the caption. “If a plaintiffs complaint is silent about the capacity in which she is suing the defendant, we interpret the complaint as including only official-capacity claims.” Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.1995). In Egerdahl, the Eighth Circuit specifically rejected Egerdahl’s argument she had sued the officials in their individual capacity because she referred to them by their names in the caption. Id. at 620. Because Hart’s complaint is silent as to whether Supervisors were sued in their official capacity, we will interpret the complaint as including only official capacity claims.

[¶ 32.] A party cannot maintain a § 1983 action against a state official if the claim is against the official in his official capacity. Hafner, 520 N.W.2d at 591; Will v. Michigan Department of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45, 53 (1989). Precedent establishes that state officials sued in their official capacities are not “persons” within the ambit of § 1983. This Court has stated:

[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. As such, it is no different from a suit against the State itself. We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device. We hold that neither the State nor its officials acting in their official capacities are “persons” under § 1983.

Hafner, 520 N.W.2d at 591 (quoting Will, 491 U.S. at 71, 109 S.Ct. at 2312, 105 L.Ed.2d at 58). Insofar as Supervisors were sued in their official capacities, they were entitled to summary judgment as a matter of law.

[¶ 33.] Even if Hart had sued Supervisors in their individual capacity, Hart’s claim would fail. The liability of Supervisors under § 1983 must be based on more than their right to control employees. Payton v. City of Detroit, 211 Mich.App. 375, 536 N.W.2d 233, 245 (1995) (citing Bellamy v. Bradley, 729 F.2d 416, 421 ([6th Cir.1984])). A supervisory official’s liability under § 1983 cannot be based solely on the 'theory of respondeat superior. Id. The court in Payton stated in order for a plaintiff to hold a supervisory official liable for violations of civil rights:

[t]here must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.

Id. The court pointed to Smith v. Heath, 691 F.2d 220 ([6th Cir.1982]) as an example of holding a supervisory official liable. Payton, 536 N.W.2d at 246. In Smith, a police supervisory officer was liable under § 1983 because he, as the officer in charge of the investigation, was directly responsible for and personally participated in the unconstitutional search of the plaintiffs home. 691 F.2d at 225.

[¶34.] In this case, Supervisors were not directly involved in Miller’s investigation at Hart’s apartment. There is an insufficient showing in the record Supervisors authorized, approved, or knowingly acquiesced in the alleged conduct of Miller against Hart. A § 1983 plaintiff must prove that the alleged policy of the superiors “was the moving force behind the constitutional violation.” Rogers, 152 F.3d at 799 (citing Jane Doe A. v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir.1990)). See also Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509, 521 (1981). No such showing having been made, Supervisors are entitled to be granted summary judgment.

[¶ 35.] We affirm on Issue 2.

[¶ 36.] 3. Whether the trial court erred in granting summary judgment to Miller on Hart’s state claims.

[¶ 37.] Sovereign Immunity

[¶ 38.] Hart’s tort claims of false imprisonment, assault and invasion of privacy when applied to her factual allegations are all intentional torts. One does not negligently solicit sexual favors. Sovereign immunity does not apply, as it is inapplicable to intentional torts committed by state employees. Bego, 407 N.W.2d at 808; Gasper v. Freidel, 450 N.W.2d 226, 229 (S.D.1990); Ritter v. Johnson, 465 N.W.2d 196, 198 (S.D.1991). As such we do not reach the issue of whether Miller was acting in a ministerial or discretionary capacity.

[¶ 39.] A. False Imprisonment

[¶ 40.] False imprisonment is an unlawful detention or restraint of a person against his or her will. Spenner, 1998 SD 56, ¶ 17, 580 N.W.2d at 611 (citing Darrow v. Schumacher, 495 N.W.2d at 522). Miller clearly had legal authority to investigate the facts surrounding the marijuana found in his patrol ear. Hart consented to Miller’s entry into her apartment, she was not handcuffed, and no weapon was drawn. There is no indication from the record Miller used any force during his brief questioning. It is undisputed Miller did not restrain or even touch Hart at any time. Miller never prevented her from leaving because she never attempted to leave. Hart also concedes Miller had a right to question her about ownership of the marijuana. When she ordered him to leave her apartment, he did so. Thus the trial court was correct in dismissing the claim for false imprisonment.

[¶ 41.] B. & C. Assault and Invasion of Privacy

[¶ 42.] Hart claims Miller’s actions create a question of fact for a jury on whether he committed assault and invasion of her privacy, and thus, the trial court erred in granting Miller summary judgment. However, Hart’s appellate brief cites no authority for her argument. Failure to cite authority waives this argument. SDCL 15-26A-60(6); State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599.

[¶ 43.] The trial court properly granted summary judgment to Miller on Hart’s state law claims. Therefore, we affirm on Issue 3.

[¶ 44.] 4. Whether the trial court erred in granting summary judgment to Supervisors on Hart’s state law claims of conspiracy and negligent supervision .

[¶ 45.] For this claim, Hart cites no legal authority in support of her argument. Again, failure to cite authority for an argument on appeal constitutes waiver of that issue. SDCL 15-26A-60(6); Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d at 599.

Conclusion

[¶ 46.] We reverse and remand for trial on the § 1983 claim against Miller. We affirm summary judgment on the balance of the claims.

[¶ 47.] MILLER, Chief Justice and KONENKAMP, Justice, concur.

[¶ 48.] SABERS and AMUNDSON, Justices, concur in part and dissent in part.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 49.] I concur in Issues 1, 2 and 4.

[¶ 50.] I dissent on Issue 3 concerning Hart’s state law claims against Miller for false imprisonment, assault and invasion of privacy.

[¶ 51.] Certainly there are genuine issues of material fact as to all three of these claims when the evidence is viewed in the light most favorable to Hart. Wilson v. Great Northern Railway Co., 83 S.D. 207, 157 N.W.2d 19, 21 (1968).

[¶ 52.] Patrolman Miller had legal authority to investigate but not at that time and place, under those circumstances. There was no free and voluntary consent by Hart to let Miller enter her apartment - only a forced, coerced, intimidated will overcome by a pushy officer intent on “doing his thing.”

[¶ 53.] Miller falsely imprisoned Hart for 15 minutes. He assaulted her sexually - it is not necessary to touch her for assault as that would be battery, not assault.

[¶ 54.] Miller also clearly invaded Hart’s privacy after 11:00 o’clock at night as that term is defined (at page 16 of Hart’s appellate brief) in Krueger v. Austad, 1996 SD 26, ¶ 33, 545 N.W.2d 205, 215-16:

An actionable violation of the right of privacy has been acknowledged by this court to be:
The unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.

(quoting Truxes v. Kenco Enterprises, Inc., 80 S.D. 104, 119 N.W.2d 914, 916 (1963) (citation omitted)). Therefore, the majority’s claim that Hart failed to cite authority is clearly wrong.

[¶ 55.] Therefore, summary judgment on these state law claims should not have been granted and we should reverse and remand Issue 3 for trial.

AMUNDSON, Justice

(concurring in part, dissenting in part).

[¶ 56.] I respectfully dissent on issue one.

[¶ 57.] The primary purpose of 42 U.S.C. § 1983 is “to aid in the ‘preservation of human liberty and human rights.’ ” Jackson v. Griffin, 1986 WL 6920, *3 (N.D.Ill.1986) (quoting Owen v. City of Independence, 445 U.S. 622, 636, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673, 684 (1980) (quoting Congressional Globe, 42d Cong., 1st Sess. App. 68 (1871) (Rep.Shellabarger))). Further, “[s]eetion 1983 stands for the commitment that American society ‘is to be governed by law and to protect the rights of those without power against oppression at the hands of the powerful.’ ” Id. (quoting Blackmun, Harry A., Section 198S and Federal Protection of Individual Rights - Will the Statute Remain Alive or Fade Away?, 60 NYULRev 1, 28 (1985)).

[¶ 58.] To establish a cause of action under § 1983, one must prove two elements. “First, a plaintiff must allege that defendant or defendants acted under color of state or territorial law. Second, the plaintiff must allege that the action taken deprived him of a federal right.” Id. (quoting Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572, 577 (1980); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732, 56 L.Ed.2d 185, 193 (1978); Texaco Inc. v. Pennzoil Co., 784 F.2d 1133, 1145 (2d Cir.1986); Barnier v. Szentmiklosi, 565 F.Supp. 869, 870 (E.D.Mich.1983)).

[¶ 59.] Under certain circumstances, a public officer, such as a police officer in the present case, may raise the defense of “qualified immunity” to avoid liability under § 1983. We have previously held that “[t]o find whether qualified immunity applies, the test is to ask if the officer’s conduct violated clearly established statutory or constitutional rights a reasonable officer would have known at the time.” Horne v. Crozier, 1997 SD 65, ¶ 6, 565 N.W.2d 50, 52 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982) (citations omitted)). In the present case, to overcome the first element of the Home test, Hart must “allege the violation of a clearly established constitutional or statutory right” See Comfort v. Town of Pittsfield, 924 F.Supp. 1219, 1227 (D.Maine 1996) (emphasis added). If the right which is alleged to have been violated is clearly established, “the court assumes that the police officer in question knew of this right.” Id. Further, “if the right is clearly established, qualified immunity will only be denied if a reasonable officer should have known that the challenged conduct violated that established right.” Id. (citing Rodriguez v. Comas, 888 F.2d 899, 901 (1st Cir.1989)). In discussing application of qualified immunity, the Maine District Court stated,

[t]he Supreme Court has extended qualified immunity generously, imposing a heavy burden on plaintiffs to establish liability, [citation omitted.] This policy is justified on a variety of grounds, not least of which is a fear that “personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” [citation omitted.]

Id.

[¶ 60.] In the present case, Hart is seeking damages under § 1983 based upon the manner in which Miller allegedly approached her at her apartment during his investigation. According to Hart, Miller looked at her provocatively, and she inferred from Miller’s actions he wanted sex from her. It is undisputed Miller did not physically touch Hart and Hart consented to Miller’s entry into her apartment. Hart’s allegations in her complaint involved actions committed by a police officer acting under color of state law; therefore, the first element of a § 1983 cause of action is easily satisfied. Where the conflict arises is with the second element; was Hart deprived by Miller of a constitutional right? Further, was this constitutional right clearly established so as to attack Miller’s defense of qualified immunity.

[¶ 61.] The main question before this Court is whether a police officer’s alleged “leering and provocative looks” and his question “what were they going to do about [the marijuana]” amounts to a violation of a “clearly established constitutional right.” Hart contends for the first time in this case that Miller’s conduct violated her liberty interest in her own physical safety and right to bodily integrity. It is the well-settled rule of this Court that if a party fails to raise an issue at the trial court level, it would be inappropriate to consider this issue for the first time on appeal. See Grand State Property, Inc. v. Woods, Fuller, Shultz & Smith, 1996 SD 139, ¶ 19, 556 N.W.2d 84, 88 (citing Mayrose v. Fendrich, 347 N.W.2d 585 (S.D.1984)). The majority, however, has disregarded this rule and considered this issue for the first time. Therefore, I will address it also.

[¶ 62.] The cases cited by the majority to support their reversal and remand of this issue are clearly distinguishable. In Antia v. Thurman, 914 F.Supp. 256, 257 (N.D.Ill.1996), Antia was allegedly detained based upon her Hispanic ethnicity and was subject to numerous derogatory comments about “Puerto Rican girls.” In Rogers v. City of Little Rock, Arkansas, 152 F.3d 790, 794-95 (8th Cir.1998), a police officer stopped a woman, followed her home, entered the residence, and raped the woman. In Haberthur v. City of Raymore, Missouri, 119 F.3d 720, 721 (8th Cir.1997), Haberthur was followed by Officer Untrif, who ultimately placed his hand under her sweatshirt and fondled her breast, chest and side, and also propositioned her to go back to his place. The present case does not contain such a clear-cut liberty interest violation as the previously mentioned cases. We are not presently faced with a situation where a police officer has made specific sexual comments, touched the plaintiff, or committed a sexual assault upon the plaintiff. Instead, we are faced with whether an alleged “leering look” and a vague, ambiguous comment rises to the level of deprivation of a constitutional right.

[¶ 63.] To establish that Officer Miller is hable to Hart, Hart must show that Miller’s “conduct violates ... clearly established constitutional or statutory rights.” See Horne, 1997 SD 65, ¶¶ 6-7, 565 N.W.2d at 52-53. A review of case law from other jurisdictions reveals that various jurisdictions have found that a person has a right to bodily privacy, a right to protection against unreasonable bodily intrusions and the right to be free from unwelcome sexual fondling, touching or other “egregious sexual contact.” See Rogers, 152 F.3d at 795-96. Most often, these rights have been applied in the situations where the officer has made an outright sexual comment or contact with the plaintiff. See e.g., United States v. Lanier, 520 U.S. 259, 267-71, 117 S.Ct. 1219, 1226-28, 137 L.Ed.2d 432, 442-46 (1997) (involving the sexual assault by a state judge); McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1197 (4th Cir.1996), cert. denied, 519 U.S. 819, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996) (discussing abusive sexual conduct in a state facility); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450-52 (5th Cir.1994) (finding liberty interest in bodily integrity in a case involving sexual abuse of school children by a teacher); Sepulveda v. Ramirez, 967 F.2d 1413, 1415-16 (9th Cir.1992) (establishing right to bodily privacy case where parolee observed while providing urine sample); Haberthur, 119 F.3d at 723 (recognizing the right to be free from unwelcome sexual fondling, touching or other egregious contact where a police officer had fondled a woman’s breasts). Only one case could be found that contained facts similar to the present case. In Reeve v. Oliver, 41 F.3d 381 (8th Cir.1994), the court .was faced with the intentional touching and rubbing of Reeve’s back and staring at Reeve’s chest by a Des Moines, Iowa Animal Control Officer. Reeve’s ultimately brought an action against Officer Oliver alleging that he “deprived her of ‘liberty and privacy interests and equal protection rights in being free from sexual harassment by a State actor.’ ” Id. at 382. The Eighth Circuit Court of Appeals found that Reeve had no claim and held,

[Reeve] has failed to allege a constitutional violation. Though Oliver’s alleged conduct may have been improper, it does not rise to the level of a constitutional violation. Reeve’s arguments that she was somehow deprived of her Fourteenth Amendment rights of privacy, liberty, and equal protection are without merit. As we stated in Gregory v. City of Rogers, 974 F.2d 1006, 1009 (8th Cir.1992), cert. denied, [507 U.S. 913], 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993), “Many harms, though caused by a state actor, do not fall within the scope of section 1983, for section 1983 does not turn the Fourteenth Amendment into a font of tort law that supersedes the tort systems already available under individual state laws. ” Reeve must look to state law for a remedy.

Id. at 383 (emphasis added). Hart has failed to show that she suffered a harm within the scope of § 1983.

[¶ 64.] The majority is saying that based upon Miller’s prior alleged acts, intent is required under a § 1983 action. This analysis by the majority is totally outside the scope of a § 1983 action. “It is well established that specific intent is not a prerequisite to liability under § 1983.” See Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992) (citations omitted). In determining liability under § 1983, we must look to what happened during the particular encounter to determine whether a constitutional right has been violated. What does an analysis of Miller’s intent based upon these other instances prove in this § 1983 action? I submit nothing.

[¶ 65.] Although Trooper Miller’s conduct is not exemplary, that in and of itself does not equal a violation of a clearly established constitutional right. Basing a claim such as this on such a subjective basis as to what was intended by one looking at someone else, would seem to open up the flood gates to any ingenious theory for a § 1983 claim. Will we be next dealing with a mind reader? This decision, I submit, opens up a “font of tort law” in this jurisdiction; therefore, I would affirm issue one.

66.] I concur in the remaining issues.

      . Defendant/Appellee supervisors in this action include: Jim Jones, Paul Christensen, Les Sterling, Warren Anderson, Tom Drav-land, Gene Abdallah, and various John Does.

      . Hart's state claims include false imprisonment, assault, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.

      .Hart also claims that Miller wrongfully withheld her keys after the arrest and retained them in his personal possession. These were not only the keys to her car but also to her apartment. However, it does appear by the time Miller arrived at the Hart apartment, Hart had secured the return of her keys from Miller through a friend.

      . The initials in the following paragraphs represent the names of women who have also brought allegations against Miller.

      . In the proper application of summary judgment principles, the trial court viewed the facts in the light most favorable to the non-moving party, that being T.P.

      . A key element is the implied coercion that Hart would be arrested for possession of marijuana if she did not consent to Miller's demands. In Reeve v. Oliver, 41 F.3d 381 (8th Cir.1994), an animal control officer was sued under 42 U.S.C. § 1983 for intentionally touching and rubbing the female plaintiff's back and staring at her chest. In upholding a dismissal the court noted that while many acts may amount to a slate tort, § 1983 actions are reserved for serious violations and were not meant to supersede state tort systems. Id. at 383. The defendant in Reeve was only investigating a complaint of a barking dog and exerted no state granted authority or coercion over the plaintiff.

      . SDCL 32-2-12 sets forth the general duties of the Highway Patrol are: " [e]xcepl as otherwise specifically provided, the division of highway patrol is entrusted with the enforcement of all laws, police regulations, and rules governing the operation of motor vehicles and motor carriers.”

      . Hart’s claims themselves also demonstrate her intent to sue Supervisors in their official capacities. Hart alleges that Supervisors failed to properly supervise and/or discipline Miller. These claims focus on the official duties of Supervisors, further supporting the conclusion that Hart’s claims are made against Supervisors in their official capacities.

      . Hart did not appeal her claims of intentional infliction of emotional distress and negligent infliction of emotional distress against Miller.

      . Whether a look was in fact "leering and provocative” would be a question for the jury to answer. However, how does one go about proving that a look was leering and provocative? How do you define this type of look? How would you instruct a jury on this question? Would you be required to submit expert testimony to distinguish a “leering and provocative” look from any other look? Does the mere fact that Hart said it was “leering and provocative” carry the burden of proof that it is? If so, is this not very subjective?