author: ZINTER, Circuit Judge (on reassignment). KONENKAMP, Justice

text:
    2001 SD 138
    Cynthia GOETZ and Marlene Laible, individually and as Executors of the Estate of Kathleen Laible, Linda Petrocine, and Terra Laible, Plaintiffs and Appellees, v. STATE of South Dakota; Community Counseling Services; County of Beadle; County of Miner; Human Service Agency; Benny L. Laible, Defendants, and Office of State Court Administrator, Appellant.
    No. 21297.
    Supreme Court of South Dakota.
    Argued April 25, 2000.
    Decided Nov. 14, 2001.

      Steve Jensen of Crary, Huff, Inkster, Sheehan, Ringgenberg, Hartnett, Storm and Jensen, Sioux City, I A, and Mark V. Meierhenry and Robin Jacobson Houwman of Danforth, Meierhenry & Meierhenry, Sioux Falls, SD, for plaintiffs and appel-lees.
    Rory King of Siegel, Barnett <& Schütz, Aberdeen, SD, for petitioner and appellant.
   ZINTER, Circuit Judge (on reassignment).

[¶ 1.] The State Court Administrator (SCA) filed a petition for an intermediate appeal from a discovery order enforcing a subpoena duces tecum. The discovery order provided for the trial court’s in camera review of certain probation records. The probation records were generated by court services officers while performing probation supervision duties. The circuit court concluded that it had discretionary authority to review the records in camera for potential disclosure to civil plaintiffs. We granted the petition for intermediate review. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On September 24, 1996, Benny L. Laible (Benny) killed his mother, Kathleen Laible (Kathleen). Benny was found guilty but mentally ill of second degree murder. SDCL 22-16-7, 23A-27-38. We affirmed his conviction on appeal. State v. Laible, 1999 SD 58, 594 N.W.2d 328.

[¶ 3.] The plaintiffs in this action are Kathleen’s daughters (collectively referred to as Goetz). They instituted this civil action against the State of South Dakota, Community Counseling Services, Beadle County, Miner County, the Human Service Agency, Benny, his court services (probation) officers and his doctors.

[¶ 4.] The allegations against the court services officers relate to their supervision of Benny while he was on probation. According to the supplemented record, Benny was on probation on two occasions. At oral argument, Goetz stated that the probation records they sought related to a Class 2 misdemeanor offense of possession of marijuana. Goetz contends that the terms and conditions of that probation required Benny to take medication to treat mental illness, to refrain from using alcohol, and to otherwise comply with the instructions of his court services officers. Goetz alleges that the court services officers were negligent in the following respects:

Failing to monitor and supervise Benny’s conduct during the probation;
Failing to monitor and supervise Benny’s compliance with prescription medications for the treatment of his mental illness;
Failing to notify a court of Benny’s failure to comply with conditions of probation imposed by the court;
Failing to take, detain and place Benny in custody because of his non-compliance with the terms of his probation;
Failing to properly diagnose and treat Benny’s mental illness.

[¶ 5.] During discovery, Goetz issued a subpoena commanding the Unified Judicial System (UJS) to “search the records of the Unified Judicial System and Court Services for parole and court services records pertaining to Benny L. Laible, including, but not limited to, all records of communications between Benny L. Laible and any court services officer.” (emphasis added). The SCA moved to quash the subpoena, arguing that the records were “confidential” under SDCL 23A-27-47. The circuit court denied the motion to quash. Instead, it ordered that it would examine the records in camera to determine relevance and whether one of the exceptions to confidentiality under SDCL 23A-27-47 could apply.

[¶ 6.] The circuit court emphasized that it intended to protect the confidentiality of the records. It stated:

Certainly in conducting the in camera examination of [these] records, this court will exercise extreme care to preserve the confidentiality of all records which should be kept confidential, either because of the facts -and circumstances of this particular case, or to preserve the expectation of confidentiality in general which would apply to discussions between a court service officer and a defendant or to preserve the confidentiality of sources. Until I review the records.... I am not able to make a determination whether they are records that can be disclosed or not. This can be done only after the in camera inspection.

(emphasis added). After the SCA asked for reconsideration, the circuit court gave further assurances. It stated:

Because of the apparent sensitive nature of this question to the State Court Administrator, it would seem appropriate in this case that after conducting the in camera inspection of the records ... the court will indicate to the State Court Administrator exactly what documents, if any, the court rules should be disclosed, at which time the State Court Administrator would have the opportunity to seek an appeal of the releasing of any such documents prior to their being disclosed pursuant to the subpoena. The court would include a list of the factors the court has utilized in making such disclosure decision upon notifying the State Court Administrator of the court’s ruling after the in camera inspection.

[¶ 7.] The SCA appealed contending that the circuit court had no authority to conduct an in camera review of probation, records for potential disclosure in a civil action. The SCA raised three issues. After oral argument we ordered further briefing on two other issues. We consider two issues to be dispositive.

STANDARD OF REVIEW

[¶ 8.] There are no factual disputes involved in the issues we decide today. The issues are questions of law involving- statutory construction which we review de novo. State v. Karlen, 1999 SD 12, ¶ 6, 589 N.W.2d 594, 597.

ISSUE ONE

[¶ 9.] Whether, in civil litigation, SDCL 23A-27-47 gives a circuit court discretionary authority to permit disclosure of records prepared by a court services officer concerning the supervision of a probationer.

[¶ 10.] By way of historical perspective, it is important to note that before SDCL 23A-27-47 was enacted in 1994, there was no confidentiality afforded to probation records. These records were first made confidential in 1994 after passage of Senate Bill 78 (S.B. 78). 1994 Sess.L. ch. 217. S.B. 78 was introduced at the request of the Chief Justice following its recommendation at the Judicial Conference. See generally, SDCL ch. 16-14. Although the Judicial Conference’s proposal requested “privilege” status for court services records, the Legislature rejected that approach and made the records “confidential.” 1994 House Journal, pp. 843-844.

[¶ 11.] As finally enacted, SDCL 23A-27-47 provides:

Records prepared or maintained by court services officers are confidential. However, such records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the unified judicial system in the course of their duties and to persons specifically authorized by order of the court.

(emphasis added). This statute makes probation records generally confidential, but subject to two exceptions. The first exception only permits disclosure to UJS employees in the course of their duties. The second, more open-ended exception, is the subject of this appeal. It permits disclosure to others if it is authorized by the court.

[¶ 12.] Goetz contends that, subject to court discretion, they are parties who could be authorized to obtain the records under the second exception. Goetz points out that the second exception is open-ended and broad enough to include them because it contains no language limiting those who may qualify.

[¶ 13.] The SCA, however, argues that we should “construe” the open-ended court-authorized exception so that it is “highly restricted as to purpose, and the purpose must be exclusively related to internal court operations, criminal sentencing, and probation.” The SCA also argues that the exception should be further “construed” so that the only persons who qualify for these “sentencing, probation and parole [purposes] ... include psychiatrists, psychologists, counselors, physicians and ministers.” The SCA asks us to use the statutory construction canons of ejusdem generis and in pari materia to reach that result.

[¶ 14.] We agree with many of the SCA’s policy reasons for seeking a legislative limitation on the open-ended exception to confidentiality created by SDCL 23A-27-47. However, neither the primary rules of statutory construction nor our precedent permit us to construe the significant statutory changes that the SCA suggests. In our judgment, the SCA’s proposed construction would be an unwarranted judicial amendment of the statute.

Primary Rules of Statutory Construction

[¶ 15.] This case requires us to examine the statutory language and apply canons of construction to determine the meaning of the open-ended exception to the general rule of confidentiality. In performing that analysis, we adhere to two primary rules of statutory construction. The first rule is that the language expressed in the statute' is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.

[¶ 16.] We explained the purpose of these primary rules of statutory construction in US West v. PUC, 505 N.W.2d 115, 123 (S.D.1993):

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. Appeal of AT&T Information Systems, 405 N.W.2d 24, 27 (S.D.1987). The intent of a statute is determined from ivhat the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Id.
Words and phrases in a statute must be given their plain meaning and effect. Id. When the language of a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Id.

(emphasis added).

[¶ 17.] In this case, the language of SDCL 23A-27-47 is clear, certain and unambiguous. Although a general rule of confidentiality was created, two exceptions were also created. The first exception is specifically enumerated and limited to those individuals who need no court order to review the records. That limited and specifically enumerated class only includes “employees of the unified judicial system in the course of their duties.” SDCL 23A-27-47. The second exception is general and open-ended because the plain language broadly includes any “persons specifically authorized by order of the court.” Id. There is certainly no statutory language limiting this exception in the manner the SCA suggests.

[¶ 18.] Because the words used in the open-ended exception are clear and unambiguous, they can easily be given their plain meaning and effect. Under those circumstances, we have “repeatedly stated that ... it is the function of the court to give [the words] effect and not to amend the statute to avoid or produce a particular result.” Matter of Sales Tax Refund Applications, 298 N.W.2d 799, 802 (S.D.1980). We therefore decline the SCA’s invitation to construe the open-ended exception so that it only applies to psychiatrists, psychologists, counselors, physicians, ministers and the like when they are involved in sentencing, probation, or court operations. Such a result would judicially legislate new limitations on the open-ended exception.

[¶ 19.] In fact, the SCA’s proposed construction of SDCL 23A-27-47 would result in the following judicial amendment of the statute: (the SCA’s proposed additions to the statute are underscored and the SCA’s proposed deletions are overstricken):

Records prepared or maintained by court services officers are confidential. However, such records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the unified judicial system in the course of their duties and to persons if specifically authorized by order of the court, to psychiatrist, psychologists, counselors, physicians, ministers and the like if involved in the sentencing, probation or official functions of the court.

[¶ 20.] Clearly, the plain language of SDCL 23A-27-47 does not support the conclusion that the South Dakota Legislature intended these proposed additions and deletions when it enacted this statute. We therefore follow the paramount rule of statutory construction and simply declare “what the legislature said, rather than what the courts think it should have said.” US West, 505 N.W.2d at 123. We do so even though the public policy reasons articulated by the SCA may justify an amendment of the statute.

[¶ 21.] The wisdom of refraining from judicially construing these changes is well illustrated by legislative action on an analogous confidentiality statute. In SDCL 26-8A-13, the Legislature made reports concerning child abuse generally confidential, but also subject to certain exceptions. However, unlike the court services statute, the Legislature expressly limited the child abuse exception in a manner very similar to that now suggested by the SCA; i.e., disclosure is limited to those who need the records “in the performance of official functions.”

[¶ 22.] The explicit language used by the Legislature in the child abuse confidentiality statute is straightforward. It clearly demonstrates that the Legislature knows how to limit the release of confidential records in the manner the SCA suggests. It also demonstrates that when such a limitation is intended, the Legislature has utilized express language. The Legislature did not, however, adopt such a limitation in the court services statute. The inescapable conclusion is that the SCA’s proposed construction was not intended. The Legislature’s express limitation on the exception in SDCL 26-8A-13, and the absence of that limitation in SDCL 23A-27-47 illustrate the impropriety of judicially construing the proposed changes.

Secondary Rules of Statutory Construction

[¶ 23.] The SCA argues that we should use the rule of ejusdem generis to limit the open-ended exception so that it only applies to persons of the type enumerated in the specific exception for UJS employees. Even if SDCL 23A-27-47 was ambiguous and we were permitted to use this secondary rule of construction, the SCA’s invocation of ejusdem generis does not so limit the open-ended exception.

[¶ 24.] It is true that “[u]nder the time honored canon of ejusdem gener-is, where general words in a statute accompany the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general kind as those enumerated.” Sioux Falls School District v. Koupal, 526 N.W.2d 248, 252 (S.D.1994); See also Wendell v. SD Dept. of Transportation, 1998 SD 130, ¶ 7, 587 N.W.2d 595, 597; State v. Galati 365 N.W.2d 575, 577 (S.D.1985); Black’s Law Dictionary 357 (6th ed. 1990). However, this rule does not apply if the specifically enumerated class is exhaustive. On the contrary,

[wjhere the specific words embrace all the persons or objects of the class designated by the enumeration, the general tvords take a meaning beyond the class. To apply the rule in this instance would render the general words meaningless for the reason that there is nothing of the same kind (ejusdem generis) to fall within their purview. Its application, consequently, would contravene the more important rule of construction that all words are to be given effect.... In order to prevent their rejection as sur-plusage, the general words take an unrestricted meaning on the ground that the legislature, by the addition of general words to an exhaustive enumeration, must have intended that they have meaning outside the class.

2A Sutherland, Statutory Construction § 47:21 (6th ed. 2000)(emphasis added). See also, United States v. Mescall, 215 U.S. 26, 31-32, 30 S.Ct. 19, 20-21, 54 L.Ed. 77, 79 (1909); Mason v. United States, 260 U.S. 545, 554, 43 S.Ct. 200, 202, 67 L.Ed. 396, 399 (1923); Mid-Northern Oil Co. v. Walker, 268 U.S. 45, 49-50, 45 S.Ct. 440, 441, 69 L.Ed. 841, 843 (1925).

[¶ 25.] In SDCL 23A-27-47, the first exception to confidentiality is an exhaustively enumerated class. It specifically enumerates all persons who do not need a court order to obtain the records. That specifically enumerated class is limited to “justices, judges, magistrates, and employees of the unified judicial system in the course of their duties.” Id. The Legislature left no room to include any others in that class. Because that class is an enumeration of all persons who can obtain court services records without a court order, it is exhaustive. Because it is exhaustive, ejusdem generis does not restrict the second exception which is defined by general words. On the contrary, because the specifically enumerated class of UJS employees is exhaustive, the subsequent general exception for “persons specifically authorized by order of the court” takes a meaning beyond the enumerated group. 2A Sutherland, supra, at § 47.21. The general exception is certainly not restricted as the SCA suggests.

[¶ 26.] Alternatively, the SCA argues that the open-ended exception should be read in pari materia with disclosure restrictions in statutes regulating pre-sentence investigation reports. “Statutes are construed to be in pari materia when they relate to the same person or thing, to the same class of person or things, or have the same purpose or object.” 2B Sutherland, Statutory Construction, § 51:03 (6th ed 2000). “Characterization of the object or purpose is more important than characterization of the subject matter in determining whether different statutes are closely related enough to justify interpreting one in light of another.” Id.

[¶ 27.] The SCA specifically argues that the restrictions on access to pre-sen-tence investigation reports in SDCL 23A-27-5, 7, 8, 9 and 10, should be incorporated into SDCL 23A-27-47. We disagree for three reasons.

[¶ 28.] First, although all provisions deal with records created by court services, the statutes deal with different things. Pre-sentence investigation reports are different than probation and all other court services’ records.

[¶ 29.] Second, the statutes governing the creation and use of pre-sentence investigation reports do not have the same purpose or object as SDCL 23A-27-47. The purpose and object of the pre-sen-tence investigation statutes is to generate meaningful information about a criminal defendant for the court’s assistance in imposing a sentence in a particular case. SDCL 23A-27-6. To • facilitate that purpose, those statutes strictly limit disclosure to the court, the state, the defendant, the defendant’s counsel, and the prison officials involved in the case before the court. On the other hand, the purpose and object of SDCL 23A-27-47 is to regulate disclosure of all other records not necessarily involving a court proceeding. See 1994 Sess.L. ch. 217. Although both statutes concededly relate to records prepared by court services, the purpose for the records and their intended audiences are different. Moreover, the confidentiality concerns that relate to all other records necessarily implicate many other considerations than those only relating to pre-sentence reports. Therefore, the purposes and objectives of disclosure under SDCL 23A-27-47 are much broader. For example, see the SCA’s myriad of concerns at n.5, supra. These broader objects and purposes relating to court services records do not warrant the inference that the narrow statutory restrictions related to pre-sentence reports necessarily apply to the broader statute. We conclude that neither the records regulated, nor the purpose for their regulation, is sufficiently similar to impose pre-sentence investigation disclosure restrictions on all other court services records.

[¶ 30.] Third, and most importantly, the “rule of in pari materia is generally used when there is some doubt or ambiguity in the wording of the statute under construction.” 2B Sutherland, supra, at § 51.03. However, as previously noted, the words used in the open-ended exception to SDCL 23A-27-47 have plain meaning and effect. The SCA has not argued otherwise. In the absence of ambiguity, this Court does not even apply in pari materia, a secondary rule of statutory construction.

Prior Precedent

[¶ 31.] We finally note that the circuit court’s discretionary authority to release this type of confidential information is supported by recent precedent of this Court. In E.P. v. Riley, 1999 SD 163, 604 N.W.2d 7, a number of plaintiffs sought discovery of confidential Department of Social Services (DSS) records relating to abused and neglected children. Like the case now before us, the plaintiffs in E.P. were seeking the records for use in civil litigation against state employees who were allegedly negligent in supervising others.

[¶ 32.] In E.P., the DSS turned the files over to the circuit court. After an in camera review, the circuit court released some, but not all of the records. The circuit court relied in part on the confidentiality provisions of SDCL 26-6-20, 26-8A-13, and 26-7A-27. The plaintiffs appealed claiming that DSS employees were “hiding behind the confidentiality statutes. ...” Id. at ¶44, 604 N.W.2d at 19. On appeal, we affirmed the circuit court’s partial release of the confidential records to the plaintiffs. We held that it was within the discretion of the circuit court to determine what confidential records could be released for the non-official purposes of that civil litigation.

[¶ 33.] We recognize that in E.P., the DSS did not object to the circuit court’s in camera inspection. Nevertheless, we expressly held, under an analogous confidentiality statute, that the disclosure decision was within the discretion of the circuit court. Moreover, we affirmed the disputed disclosure of similar confidential records to unrelated civil litigants for an unofficial use; that is, for use in a negligence suit against the children’s supervisors. We have not been persuaded that there are sufficient differences in SDCL 23A-27-47 to require a different rule for probation records. Indeed, it would be an anomalous result if, under similar statutes, the confidential records of probationers under the supervision of court services officers are not subject to discretionary disclosure by the court when the confidential records of children under the supervision of DSS are subject to such disclosure.

[¶ 34.] We defer to the plain language of the statute and decline to judicially construe the changes the SCA suggests. We leave it to the legislature to consider those proposed changes.

ISSUE TWO

[¶ 35.] Whether the records sought are relevant in the civil suit.

[¶ 36.] The SCA argues that the records at issue are not relevant because a probation officer owes no duty to third parties arising out of a probation relationship. The SCA also argues that court services officers are immune from this suit.

[¶ 37.] There are motions now pending before the circuit court which could determine these issues. However, this intermediate appeal has deprived the circuit court of the opportunity to first consider them. Moreover, there may be undeveloped fact issues implicated by the SCA’s arguments. Because this is only an intermediate appeal involving a discovery dispute, these issues are not ripe for review.

[¶ 38.] We affirm.

[¶ 39.] AMUNDSON, Acting Chief Justice, GILBERTSON, Justice, and KERN, Circuit Judge, concur.

[¶ 40.] KONENKAMP, Justice, dissents.

[¶ 41.] ZINTER. Circuit Judge, for MILLER, Retired Chief Justice, disqualified.

[¶ 42.] KERN, Circuit Judge, for SABERS, Justice, disqualified.

KONENKAMP, Justice

(dissenting).

[¶ 43.] “Records prepared or maintained by court services officers are confi-dentiál.” SDCL 23A-27-47. Here, a rule of criminal procedure is being used improperly to obtain discovery in a civil action. Title 23A governs “the procedure to be used in the courts of this state in all criminal proceedings.... ” SDCL 23A-1-1 (emphasis added). The physical location of SDCL 23A-27-47 in the chapter dealing with criminal procedure is no mere happenstance. The Legislature clearly intended it to be there, as evidenced by its 1994 enactment: “That chapter 23A-27 be amended by adding thereto a NEW SECTION to read as follows.... ” South Dakota Session Laws 1994, ch 217, § 2.

[¶ 44.] Rules regarding criminal procedure are not applicable to civil procedure. In the absence of a statute authorizing their release, these confidential records are not subject to civil discovery. If the Legislature wanted to authorize disclosure in noncriminal matters, it knew how to declare when a statute should apply to both criminal and civil proceedings. See, e.g., SDCL 15-14-4. The only exception is provided in SDCL 23A-27-47 itself: “However, such records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the unified judicial system in the course of their duties and to persons specifically authorized by order of the court.” This list can be expanded to include others not named so long as they obtain a court order, but the purpose for release must be related to “criminal proceedings,” as that is all the statute encompasses. SDCL 23A-1-1.

[¶ 45.] Lastly, if these confidential materials are now going to be discoverable in civil suits, then I think it incumbent on the majority to give courts some guidance on the timing and manner of their release. Leaving it to pure discretion will create inconsistency and conflict. The case of E.P. v. Riley, 1999 SD 163, 604 N.W.2d 7 provides no authority here since, as the majority seems to acknowledge, it is dicta because the DSS records in that case were turned over without objection. Analogously, in dealing with the release of secret grand jury records, the United States Supreme Court held that these materials may be breached only when (1) they are needed to avoid a possible injustice in another judicial proceeding; (2) the need for disclosure is greater than the necessity for continued confidentiality; and (3) the request is structured to cover only needed materials. Douglas Oil v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). The probation records should not be released at all, but if they are going to be released, then these three criteria should serve as guides.

      . The resolution of some issues raised (but not necessarily decided) in this appeal is highly dependent upon the actual nature of the probation records. Unfortunately, the language of the subpoena is not specific. Moreover, this is an intermediate appeal, and the actual records could not be included in the settled record. Because the nature of the actual records can determine the outcome of decided and undecided issues in this case, we must make certain assumptions to decide this appeal.
      We have reached our holding by making those assumptions from the available evidence in the record. The relevant evidence includes the Goetz’s negligence allegations, the SCA’s description of probation records and the discovery requests which underlie the subpoena and discovery order. That evidence, and especially the underlying discovery requests, strongly suggest that the subpoena only seeks the post-sentencing records of a court services officers' (probation officers') administrative activities in supervising a probationer. Because our opinion is fundamentally premised on that assumption, this opinion may not be construed to permit the disclosure of any records of any court, including a sentencing court’s thoughts, comments or communications with a court services officer. So also, this opinion may not be construed to provide a second avenue for disclosure of pre-sentence investigation reports. The disclosure of pre-sentence investigation reports is controlled by the more specific provisions of SDCL 23A-27-5, 7, 8, 9 and 10. Finally, this opinion does not authorize the disclosure of any privileged matters in court services records. Should inspection of the actual reports reveal that any of our assumptions are incorrect, the trial court is not bound by this Court's mandate.

      . Goetz argues the petition for intermediate appeal was not timely filed. However, there was substantial confusion concerning the time of service of the relevant orders of the circuit court. The timeliness and service issues were fully briefed when the petition for intermediate appeal was granted. Considering the confusion, we determined that the petition was timely and that service was sufficient.

      . The State and the Human Service Agency were subsequently dismissed from the action.

      . We decide this case on this sole claim of statutory "confidentiality.” The SCA makes no claim of privilege. Because privilege is not an issue, this opinion is no authority for the release of any privileged information contained in court services records. Many of the SCA's concerns (see n.5, infra) may be resolved by a privilege protection even if the evidence is discloseable under SDCL 23A-27-47.

      . The general nature of probation records and the policy reasons for seeking confidentiality are set forth in the SCA's affidavit:
      2. Affiant has very serious concerns that the discoverability of court services records will have significant impact upon the function of the court services officers. Their field notes may contain personal and confidential information. Many people on probation have serious problems. Frequently, they are required to participate in counseling programs or attend treatment programs as a condition of probation. Information is regularly exchanged between counselors and court services regarding a probationer’s progress. Even here, however, information releases must generally be obtained before the counselor will discuss confidential matters. While I suspect that most probationers assume that counselors will discuss their progress with the assigned court services officer, I doubt they assume that those discussions will include general dissemination of their mental health or chemical dependency problems to civil litigants.
      3. Moreover, and particularly in the juvenile area, mental health counselors work closely with the family. Thus, a log entry might read: 'Spoke with X's counsel who feels he is making great progress, but also expressed concern that the mother (or father) is not dealing with their chemical abuse problems.’ Thus, the information contained in these records goes beyond a particular probationer. I do not believe such information can be redacted from the whole of the records without compromising an accurate picture of the entire case. Thus, not only would a probationer’s mental state become subject to discovery, but also potentially that of every family member, acquaintance, co-defendant, associates, co-workers, etc.
      4. Court services also deals with very confidential medical information. Court services offices may have information that a probationer is HIV positive, has AIDS or suffers from hepatitis. This is particularly so in dealing with probationers who have a history of drug abuse. Release of such information in some cases, even in civil litigation, would be tantamount to broadcasting highly confidential medical history.
      5. Release, of these records could endanger others. Court services offices maintain records on contacts with others, particularly when preparing a presentence investigation (adults) or a pre-hearing social case study (juvenile). The information they obtain is reported to the court Informants, [sic] family members, school or professional counselors, friends, and law enforcement officers may all contribute to the report. While the names of individuals may not be in the report, log entries of contacts are maintained. If this information becomes discoverable, there is a real potential of criminal defendants or others linking unfavorable information to specific individuals, thereby endangering people who gave information under a guarantee of confidentiality.

      6. Court seivices records are intended as case management tools, not as a running biography of the probationer. The success of probation depends on officers maintaining accurate, adequate and frank field notes. These notes, or summaries thereof, are regularly exchanged with other officers. The notes are used to manage the case and to refresh an officer's memory of the contacts. They may reveal very frank conclusions or impressions about the probationer’s conduct. They may contain an officer's own emotional reaction to the conduct of a probationer (‘He said he’s not drinking — that’s a flat out lie.’). If the notes become discoverable, officers may fail to maintain adequate field notes, compromising effective probation supervision. It is easier to say on the stand, 7 don't remember,' than it is to explain selected field notes. Field notes are intended to assist the officer in managing a case; they are not intended as a legal narrative of how the case was (or was not) supervised.
      7. Release of such information could inhibit the frank exchange needed to ensure a successful probation program. The success or failure of a probationer depends on establishing a solid relationship between the probationer and the court services officer; one in which probationers know they will be held accountable for their conduct. It is difficult to establish such relationships when a probationer becomes evasive, uncooperative, or combative. I believe probationers may be less willing to cooperate if they know that statements they make (particularly where co-defendants are involved) may become public in civil litigation. Moreover, court services officers have relied on statutorily mandated confidentiality in managing their cases, (emphasis added).
      It is significant that the SCA raises no concern about any impact on any judge or judicial activitj'. His concerns all relate to the post-sentencing administrative activity of supervising probationers.

      . The Legislature expressly provided:
      All investigative case records and files relating to reports of child abuse or neglect are confidential, and no disclosure of any such records, files, or other information may be made except as authorized in chapter 26-7 A or this chapter.... The Department of Social Services may release records, files, or other information to the following parties upon the receipt by the department of a request showing that it is necessaiy for the parties to have such information in the performance of official functions relating to child abuse or neglect ...

      SDCL 26-8A-13 (emphasis added).

      . The SCA has not argued that SDCL 23A-27-47 is ambiguous, and we decline to so find.

      . If the Legislature had left the enumerated class of UJS employees open to include others, one could not decipher where that class ended. In that instance, it would be appropriate to apply ejusdem generis to narrow the subsequent general class of persons specifically authorized by order of the court to the type of persons previously enumerated. This is not, however, how the first exception was passed by the Legislature.

      . This statement is no expression of the relative extent of control exercised by court services over probationers and that exercised by DSS over children.

      . I respectfully disagree with the dissent for three reasons. First, there is no dispute that SDCL 23A-27-47 is physically located in a chapter of the code that governs criminal procedure. However, SDCL 23A-27-47 does not regulate criminal procedure. Rather, like statutes creating privileges, SDCL 23A-27-47 is a substantive grant of confidentiality. Consequently, the substantive statute’s physical location in a chapter governing criminal pro- . cedure is of little consequence in determining the scope of the substantive grant of confidentiality. Second, the express language- of the statute does not provide that "the purpose for the release must be related to ‘criminal proceedings’ ...” dissent at ¶ 44. Because the plain language of the statute does not so limit disclosure, we should not construe the statute in that manner. Finally, even if the statute was only applicable lo a criminal proceeding, the records would still be subject to civil discovery. As pointed out in ¶ 10 supra, there was no confidentiality status afforded these records in any proceeding (civil or criminal) until the 1994 enactment of SDCL 23A-27-47. Significantly, the SCA now seeks confidentiality status in this civil proceeding under this statute which contains both the grant of confidentiality and the exceptions. Therefore, if the entire statute is inapplicable to this civil proceeding, then there is not only no exception to apply, but also no statutory grant of confidentiality available to prevent discovery.
      We do, however, agree with both the dissent’s and the trial court’s guidelines for exercising discretion in a disclosure decision. See ¶ 6 supra and ¶ 45 infra.


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2001 SD 137
    Paulette HALL and Donald Williams, Plaintiffs and Appellees, v. CITY OF WATERTOWN, by and through the City of Watertown Police Department, and Shane Smith, individually and in his capacity as a Police Officer for the City of Watertown, Defendants and Appellants.
    No. 21851.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 2, 2001.
    Decided Nov. 14, 2001.
    Rehearing Denied Dec. 14, 2001.

      David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, SD, Attorneys for plaintiffs and appellees.
    Roy A. Wise of Richardson, Groseclose, Wyly, Wise & Sauck, Aberdeen, SD, Attorneys for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] We granted intermediate appeal to decide whether the statute conferring immunity for injuries caused by escapees and persons resisting arrest overrides the statute waiving immunity to the extent of liability coverage. Although the circuit court prematurely concluded that one statute trumped the other, it reached the right result in finding a waiver of immunity. We affirm.

Background

[¶ 2.] Officer Shane Smith, a Water-town police officer, spotted someone driving erratically on Highway 20. The officer turned on his flashing lights, but the driver, John Behnke, fled. He drove over a concrete flower pillar onto a grassy area and hit a tree. Officer Smith pulled up beside the temporarily stalled vehicle, which, as it turned out, Behnke had earlier stolen from a used car lot. When the officer got out of his patrol car, Behnke restarted the engine, spun around, and hit the back end of the police vehicle. He turned, drove directly at the officer, and struck the left front door of the patrol car. After this, Behnke headed back onto Highway 20. Officer Smith followed with lights flashing and siren sounding. As the pursuit continued, the vehicles reached speeds of 60 m.p.h. Behnke turned at high speed at an intersection, lost control, went over a curb, and crashed into the residence of Paulette Hall and Donald Williams. Both sustained injuries: Hall, a broken back, and Williams, unspecified lesser injuries.

[¶ 3.] Hall and Williams sued the City of Watertown, its police department, and Officer Smith. They alleged first, that Officer Smith was negligent and reckless in pursuing Behnke, a juvenile operating a stolen automobile, and second, that the City was negligent in failing properly to supervise and train Officer Smith in correct procedures for apprehending fleeing vehicles. Defendants moved for summary judgment, arguing that SDCL 3-21-9 granted them immunity and constituted a complete defense as a matter of law. The court upheld immunity under SDCL 3-21-9, but ruled that it was waived under SDCL 21-32A-1. On appeal, defendants contend that statutory immunity afforded in SDCL 3-21-9 is not waived by participation in liability coverage.

Analysis and Decision

[¶ 4.] Sovereign immunity is a legal concept examined de novo, with no deference to the circuit court’s legal reasoning. Cromwell v. Rapid, City Police Dep’t., 2001 SD 100, ¶ 8, 632 N.W.2d 20, 23. Despite arguments from both sides that the issue before us depends on the relative priority of § 3-21-9 contrasted with §§ 21-32A-1 and 21-32A-2, we believe a more elementary question presents itself, namely, whether § 3-21-9 may be properly applied to this fact situation.

[¶ 5.] Immunity is conferred under SDCL 3-21-9:

No person; political subdivision or the state is liable for any injury resulting from the parole or release of a prisoner or from the terms and conditions of his parole or release or from the revocation of his parole or release, or for any injury caused by or resulting from: (1) an escaping or escaped prisoner; (2) an escaping or escaped person; (3) a person resisting arrest; (4) a prisoner to any other prisoner; or (5) services or programs administered by or on behalf of the prison, jail or correctional facility.

The circuit court found that Behnke was either “an escaping person” or “a person resisting arrest.” However, the initial four lines of the statute make clear that it applies to injuries resulting from the parole or release of prisoners. Here, no prisoner was released. Behnke could not be an escaping or escaped prisoner because he was not in custody or under arrest before the chase began. Nor could he be a person resisting arrest. To resist arrest, one must be informed that police intend to arrest, for without that knowledge a person cannot, in turn, intentionally resist arrest. See State of Arizona v. Womack, 174 Ariz. 108, 847 P.2d 609 (Ct.App.1992) (absent an indication that pursuing officers communicated their intent to arrest there can be no resisting arrest). Therefore, § 8-21-9 is inapplicable here.

[¶ 6.] Waiver of immunity is governed by SDCL 21-32A-1:

To the extent that any public entity, other than the state, participates in a risk sharing pool or purchases liability insurance and to the extent that coverage is afforded thereunder, the public entity shall be deemed to have waived the common law doctrine of sovereign immunity and shall be deemed to have consented to suit in the same manner that any other party may be sued. The waiver contained in this section and §§ 21-32A-2 and 21-32A-3 is subject to the provisions of § 3-22-17.

Similarly, SDCL 21-32A-2 provides:

Except insofar as a public entity, including the state, participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any employee, officer or agent of the public entity, including the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity. The immunity recognized herein may be raised by way of affirmative defense.

[¶ 7.] It is undisputed that Watertown participates in a risk-sharing pool, and since we find § 3-21-9 inapplicable, liability remains open, subject to the limits determined by the City’s participation. That is, §§ 21-32A-1 and 21-32A-2 stand unhindered in waiving liability under these facts. Our holding means that although the circuit court used the wrong reason, it was correct in finding that immunity was waived.

[¶ 8.] Affirmed.

[¶ 9.] GILBERTSON, Chief Justice, SABERS, AMUNDSON, Justices, and GORS, Circuit Judge, Acting Supreme Court Justice, concur.

      . See Webb v. Lawrence County, 144 F.3d 1131 (8thCir.1998) (SDCL 3-21-9 provided complete defense to a prisoner’s state negligence claim) (emphasis added); Brown v. Youth Services International of South Dakota, Inc., 89 FSupp2d 1095 (D.S.D.2000) (as a private entity, Youth Services could not be immune under SDCL 3-21-9 for liability resulting from several students’ escape from custody) (emphasis added).

      . According to the South Dakota Pattern Jury Instructions (Criminal), a defendant must have the intent to prevent or attempt to prevent an arrest. See § 3-9-10, Resisting Arrest — Elements. That jury instruction is based on SDCL 22-11-4, Resisting Arrest, which states: "Any person who intentionally prevents or attempts to prevent a law enforcement officer or jailer, acting under color of his authority, from effecting an arrest of the actor or another, by (1) Threatening to use physical force or violence against the law enforcement officer or jailer or any other person; or (2) Using any other means which creates a substantial risk of causing physical injury to the law enforcement officer, jailer, or any other person; is guilty of resisting arrest .... ” Thus defendants can be guilty of resisting arrest only if they (1) intend to do so and either (2a) threaten to use force or violence or (2b) create a risk of physical injury. Since Behnke caused actual physical injury, he also created a risk of physical injury; however, as explained in the text, he cannot have had the intent to resist arrest, not having been informed that Officer Smith intended to arrest him. Although the absence of the intent element precludes one's being found guilty of resisting arrest, it does not, of course, prevent one from being charged with, and found guilty of other crimes, e.g., obstructing a pub-lie officer (SDCL 22-11-3) or eluding a law enforcement vehicle (SDCL 32-33-18).


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Ismael M. RAMIREZ, Appellant.
    No. 00-0393.
    Supreme Court of Iowa.
    Sept. 6, 2001.
    James A. Benzoni of Benzoni <& Mains, P.L.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel C. Voogt, Assistant County Attorney, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   LARSON, Justice.

Pursuant to a plea agreement, Ismael Ramirez, a permanent legal resident from Mexico, pled guilty to a charge of possession of a controlled substance with intent to deliver, a class “C” felony. He was sentenced to a term not to exceed ten years, but the sentence was suspended and he was placed on probation.

Neither at the plea nor the sentencing proceedings did the district judge mention the possible effects of the guilty plea and sentence on Ramirez’s immigration status. Specifically, the judge did not determine whether Ramirez was aware that his guilty plea would subject him to mandatory deportation without any possibility of relief.

The defendant contends the district court erred in accepting his guilty plea without advising him of the deportation consequences. Ramirez also claims his trial counsel was ineffective for failing to inform him of those consequences.

I. The Duty of the Court.

Ramirez contends the court committed constitutional error when it accepted his guilty plea without satisfying itself he understood the deportation consequences. The State responds that Ramirez failed to object at the plea proceeding, and in any event, the court was not required to make such an inquiry. Ramirez rejoins, on the preservation issue, that he is excused from objecting at the plea hearing because his trial counsel was ineffective. We consider this issue on its merits, despite Ramirez’s failure to object before the district court and conclude the court was not required to make this inquiry.

“It is well-settled that a trial court is not required to advise a defendant stia sponte of potential federal deportation consequences of a plea of guilty to a felony charge when accepting such plea.”

People v. Pozo, 746 P.2d 523, 526 (Colo.1987) (holding counsel must investigate relevant immigration law when counsel is aware defendant is an alien). Indeed, this rule has been characterized as “unanimous.” Id. at 533 (Rovira, J., dissenting on other grounds). As one court has said, however,

we recognize that some states have imposed the duty to inform non-citizen defendants about the deportation consequences that result from entering a guilty plea. Nevertheless, such provisions have been enacted by statute or rule ....

State v. Rosas, 183 Ariz. 421, 904 P.2d 1245, 1247 (Ct.App.1995) (emphasis added).

Under our rules of criminal procedure, the court

shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
(1) The nature of the charges to which the plea is offered.
(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.
(3) That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant’s own behalf and to have compulsory process in securing their attendance.
(4) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial.

Iowa R.Crim. P. 8(2)(b). Our rule does not require the court to inform the defendant regarding consequences such as deportation.

Ramirez contends his constitutional rights transcend rule 8, and the court’s failure to advise him of the impact of the guilty plea violates his due process rights under the federal and state constitutions. He claims the court failed to satisfy itself that the plea was knowing, intelligent, and voluntary because it did not raise a possible deportation issue. He cites Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203, 208 (1985) (“The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162, 168 (1970))).

Our court has not discussed the failure of the court to advise a defendant of deportation consequences. We rely to some extent on federal authorities applying similar guilty-plea rules.

Federal Rule of Criminal Procedure 11(c) requires certain inquiries by the court:

Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense....

One authority has noted that, while some direct consequences of a guilty plea must be understood by the defendant,

[o]ther consequences are more clearly collateral, and it is not required that defendant be informed of them. These have been held to include: loss of civil rights; increased punishment if the defendant should repeat the offense; undesirable discharge from the armed forces; deportation; ineligibility for federal benefits; later parole date; revocation of an existing parole; an adverse recommendation from the court to the parole authorities; denial of “good time” as a multiple offender; revocation of a driver’s license; and an adverse effect on civil litigation.... A defendant need not be told that the court lacks power to order that the federal sentence run concurrently with a state sentence. Defendants need not be told when pleading guilty that the conduct to which they entered the plea might be used as a predicate offense for a RICO prosecution.

Charles Alan Wright, Federal Practice and Procedure § 173, at 191-94 (1999) [hereinafter Wright] (emphasis added) (footnotes omitted).

We agree with these authorities and the majority rule among states that the court is not required by due process to ascertain the defendant’s understanding of possible deportation consequences, despite Ramirez’s argument that deportation is different in kind from other consequences because of its severity. It would, however, be proper, and probably desirable, for the court to advise a defendant of such matters. See Wright § 173, at 195; see also United States v. Russell, 686 F.2d 35, 41-42 (D.C.Cir.1982) (“District courts need to remember that although they are not required to explain the possibility of deportation to alien defendants before accepting a plea ... nothing prohibits them from doing so. The distribution of justice to alien defendants can only be enhanced if the trial courts make sure defendants know the pandects under which they plead.”).

II. The Ineffective-Assistance Claim.

Ramirez claims ineffective assistance of counsel in his decision to plead guilty, based on his lawyer’s failure to advise him of the likelihood of deportation. The State relies on our case of Mott v. State, 407 N.W.2d 581 (Iowa 1987), which held a lawyer has no duty to inform a defendant of deportation consequences. Id. at 584. Ramirez argues that Mott should be overruled.

In Mott the defendant was a native of Thailand who had been given permanent residency in the United States. He pled guilty to burglary and served a prison term. The United States Immigration and Naturalization Service began deportation proceedings. Mott then began postconviction proceedings to challenge his plea based on ineffective assistance of counsel. In his case, we discussed the significance of direct consequences of a lawyer’s failure to advise a defendant as opposed to those consequences that are merely collateral:

When the ineffectiveness claim is based on alleged failure to advise a defendant on the consequences of a guilty plea, the rule is that, if the consequences flow “directly” from the plea, the plea may be held invalid. If, on the other hand, the fallout from the plea is “collateral,” counsel is generally not held to be ineffective for failing to inform the defendant about it.

Mott, 407 N.W.2d at 582-83 (citation omitted).

In urging us to overrule Mott, Ramirez points to significant immigration law changes since Mott. Ramirez’s argument is similar to the argument raised in the recent case of State v. Martinez-Lazo, 100 Wash.App. 869, 999 P.2d 1275 (2000), in which the court stated:

[The defendant] acknowledges the general rule in [this state] that deportation is a collateral consequence, but argues that deportation is no longer a collateral matter due to changes to the Immigration and Naturalization Act (INA) ushered in by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA), and the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, 110 Stat. 3009-546 (1996) (IIRIRA). In view of these changes, [the defendant] contends his deportation is certain, and therefore no longer a collateral consequence.

Id. at 1279 (footnote omitted). Ramirez also contends these changes, together with increased immigration enforcement, renders deportation a direct rather than a collateral result, thus abrogating the holding of Mott. He argues that, “after the 1996 immigration reform, a trial judge now does have control over deportation.” He argues: “Deportation is a criminal punishment. It is a direct result of a guilty plea and is a criminal punishment.”

Ramirez thus equates “certainty” of a sanction with the “directness” of the sanction, which is only half the test we have applied. We have said there must be a “definite, immediate and largely automatic effect on the range of defendant’s 'punishment.” State v. Carney, 584 N.W.2d 907, 908 (Iowa 1998) (emphasis added). In Carney the defendant contended his guilty plea to OWI was invalid because he was not informed he faced revocation of his driver’s license. Iowa Code section 321J.4(3)(a) (1995) provided:

Upon a plea or a verdict of guilty of a third or subsequent violation of section 321J.2, the court shall order the department to revoke the defendant’s motor vehicle license or nonresident operating privilege for a period of six years....

In Carney we held that, although revocation was mandatory and automatic, it was still a collateral consequence of the conviction because it did not have an effect “on the range of defendant’s punishment.” Carney, 584 N.W.2d at 909. Similarly, deportation does not have an effect “on the range of defendant’s punishment” as far as the State of Iowa is concerned, “because it is not the sentence of the court which accepts the plea but of another agency over which the trial judge has no control and for which he has no responsibility.” MaHinez-Lazo, 999 P.2d at 1279.

Deportation, which as in this case may result in separation of families, certainly carries the sting of punishment. As the Indiana Court of Appeals observed:

Deportation may be a penalty more severe than a prison sentence. Deportation may result in families being divided or in “loss of property or life; or of all that makes life worthwhile.” Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922). It has been called “a savage penalty,” “a life sentence of exile.” Jordan v. De George, 341 U.S. 223, 243, 71 S.Ct. 703, 714, 95 L.Ed. 886 (1951) (Jackson, J., dissenting).

Williams v. State, 641 N.E.2d 44, 49 (Ind.Ct.App.1994).

The Arizona Court of Appeals recently wrote:

[W]e recognize that the majority of the courts that have considered this issue have held that the failure of defense counsel to inform non-citizen defendants about the collateral deportation consequences that result from entering guilty pleas does not constitute ineffective assistance of counsel. See Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972) ...; State v. Casseus, 513 So.2d 1045 (Fla.1987); Mott v. State, 407 N.W.2d 581, 583 (Iowa 1987); State v. Chung, 210 N.J.Super. 427, 510 A.2d 72, 76-77 (App.Div.1986); State v. Dalman, 520 N.W.2d 860, 863-64 (N.D.1994); State v. McFadden, 884 P.2d 1303, 1305 (Utah App.1994); United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975); United States v. Yeanoood, 863 F.2d 6, 7-8 (4th Cir.1988); United States v. Gavilan, 761 F.2d 226, 228-29 (5th Cir.1985); Santos v. Kolb, 880 F.2d 941, 944 (7th Cir.1989) ...; United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985).

Rosas, 904 P.2d at 1247. The Arizona court continued:

[W]e recognize that some states have imposed the duty to inform non-citizen defendants about the deportation consequences that result from entering a guilty plea. Nevertheless, such provisions have been enacted by staüite or rule ....

Id. (emphasis added). Iowa, as yet, has no rule or statute imposing a duty to inform aliens about deportation consequences. It is true we recently stated in dicta that, “[w]hen representing a foreign national criminal defendant, counsel has a duty to investigate the applicable national and foreign laws.” Ledezma v. State, 626 N.W.2d 134, 152 (Iowa 2001) (citing Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984)). However, we were careful to reserve judgment on whether counsel rendered ineffective assistance by failing to inform a foreign-national defendant of the right to consular access. Rather, we stated foreign nationals should be advised of that right, Ledezma, 626 N.W.2d at 150, 152, and we accordingly state here that foreign-national defendants should be apprised of all applicable federal laws, especially federal deportation consequences of state guilty pleas.

The Michigan Court of Appeals in People v. Davidovich, 238 Mich.App. 422, 606 N.W.2d 387 (1999), aff'd, 463 Mich. 446, 618 N.W.2d 579 (2000), discussed the issue of ineffective assistance of counsel and disapproved its prior case of People v. Kadadu, 169 Mich.App. 278, 425 N.W.2d 784 (1988) (holding it was not an abuse of discretion to allow withdrawal of a guilty plea when defendant was not informed of the deportation consequences of such a plea). The Davidovich court stated:

Although we acknowledge that deportation is a severe collateral consequence, we cannot conclude that it warrants treatment as a direct consequence of a plea. Deportation is only one possible collateral consequence of a guilty plea....
Collateral consequences of a guilty plea are many. They may include the loss of civil service employment, of the right to vote and to travel freely abroad, of the right to a driver’s license, and of the right to possess firearms.

606 N.W.2d at 390 (quoting United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.1990) (citations omitted)); see also Mott, 407 N.W.2d at 583 (citing other consequences found to be collateral under Iowa law); Wright § 173, at 191-94 (listing serious, nevertheless collateral, consequences, including increased punishment on reof-fending, revocation of an existing parole, and consideration of the current offense as a predicate for a federal RICO prosecution).

Davidovich rejected a special status for deportation consequences based on the unusual severity of deportation:

We discern no principled distinction between the immigration consequences of a plea and these other collateral consequences .... As the United States Supreme Court noted in United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979):
“Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas.... ” [Quoting United States v. Smith, 440 F.2d 521, 528-529 (C.A.7, 1971) (Stevens, J., dissenting).]
We realize deportation is a much more severe sanction than the defendant anticipated receiving, and defendant’s motion to withdraw his plea carries a certain intuitive appeal....
[However,] [t]o the extent that the trial court might be trying to save defendant from deportation, its efforts are misguided. The Congress, through its legislation, decides which crimes merit deportation'. As we discussed above, deportation is a collateral consequence of defendant’s conviction. It is the fulfillment of a federal immigration policy, and it is unrelated to the trial court’s inquiry. The trial court’s only concern is whether defendant committed the charged crime and whether the plea was entered knowingly and voluntarily. Trial courts should not attempt to aid defendants in circumventing the deportation process because they believe deportation is too harsh a consequence for the crime committed. Those sorts of considerations belong to the Immigration and Naturalization Service, its administrative courts, and the federal court system.

Davidovich, 606 N.W.2d at 391-92 (footnote omitted) (first alteration in original).

We decline to overrule Mott. We repeat what we said there:

While there is some merit in the argument that deportation is such a serious consequence of the plea that it is more akin to a direct result, we adhere to our rule that failure to advise a defendant concerning collateral consequences, even serious ones, cannot provide a basis for a claim of ineffective assistance of counsel.

Mott, 407 N.W.2d at 583. We accordingly affirm.

AFFIRMED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

      . No deportation proceedings following the plea and sentencing are shown in this record, and for that reason, the State argues we should not decide this case on the basis that those proceedings were instituted or threatened. For purposes of this appeal, however, we assume Ramirez is subject to mandatory deportation based on his conviction.

      . Our prior case of Mott v. State, 407 N.W.2d 581 (Iowa 1987), only addressed the duty of defense counsel.

      . We do not have before us the lawyer’s version of these proceedings, and we merely accept Ramirez's argument that he was not advised of possible deportation issues.

      . Ramirez married a United Stales citizen and has four United States’ citizen children, ages six, five, and twins age three.


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Charles Norman EK, an Attorney at Law of the State of Minnesota.
    No. C3-00-2006.
    Supreme Court of Minnesota.
    Dec. 11, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed an application for suspension pursuant to Rule 12(c)(1), Rules on Lawyers Professional Responsibility, based upon evidence that respondent cannot be found in the state.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Charles Norman Ek be suspended from the practice of law. Within one year from the date of this order, respondent may move the court for vacation of the order of suspension and for leave to answer the petition for disciplinary action.

BY THE COURT

Alan C. Page Associate Justice


author: /s/ KATHLEEN A. BLATZ Chief Justice

text:
    Larry FRAZEE, Respondent, v. SWIFT & COMPANY, Relator, and Self-Insured/Conagra Risk Management, Insurer.
    No. C0-011583.
    Supreme Court of Minnesota.
    Dec. 11, 2001.
    Workers’ Compensation Court of Appeals; Jennifer Patterson, J.
    Johnson & Condon, P.A., Mary E. Christenson, Minneapolis, for employer-relator.
    Von Holtum, Matters & Shephard, Mark W. Shepherd, Worthington, for employee-respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 21, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ KATHLEEN A. BLATZ Chief Justice


author: /s/ALAN C. PAGE Associate Justice.

text:
    Daniel J. REYES, Respondent, v. WAL MART, and American International Group/Claims Mgmt., Inc., Relators, St. Paul Radiology, Primary Behavioral Health, Intervenors.
    No. C9-01-1744.
    Supreme Court of Minnesota.
    Dec. 12, 2001.
    Workers’ Compensation Court of Appeals; William R. Pederson, J.

      Andrew A. Willaert, Gislason & Hunter, L.L.P., Mankato, for relator.
    Patrick W. Kelly, Woodbury, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 13, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ALAN C. PAGE Associate Justice.


author: /s/ PAUL H. ANDERSON Associate Justice

text:
    Benjamin B. WOMACK, Respondent, v. FIKES OF MINNESOTA, and Western National Mutual Group, Relators, AMCO Insurance Company, Intervenor.
    No. C5-01-1644.
    Supreme Court of Minnesota.
    Dec. 13, 2001.
    Workers’ Compensation Court of Appeals; Steven Wheeler, J.
    Janet Stellpflug, Aafedt, Forde, Gray & Monson, P.A., Minneapolis, for relator.
    Timothy P. Jung, Cronan Pearson Quin-livan, P.A., Minneapolis, for employee and intervenor-respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 12, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ PAUL H. ANDERSON Associate Justice


author: J.E. Lancaster Associate Justice

text:
    James A. HEINE, Relator, v. APPLE AUTOMATIC FOOD SERVICE, and State Farm Insurance Company, Respondents.
    No. C1-01-1723.
    Supreme Court of Minnesota.
    Dec. 19, 2001.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 10, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

BY THE COURT

J.E. Lancaster Associate Justice

STRINGER, J., took no part in the consideration or decision of this case. •