author: MILLER, Chief Justice AMUNDSON, Justice KONENKAMP, Justice

text:
    2000 SD 87
    David JORGENSON and Laura Jorgenson, Plaintiffs and Appellants, v. Michael J. VENER, M.D., Defendant and Appellee,
    No. 21139.
    Supreme Court of South Dakota.
    Argued March 22, 2000.
    Decided July 5, 2000.
    Daniel R. Fritz Fritz Law Offices, Aberdeen, South Dakota and James R. Welsh of Bradford, Coenen & Welsh, Omaha, Nebraska, Attorneys for plaintiffs and appellants.
    Reed Rasmussen of Siegel, Barnett & Schütz, Aberdeen, South' Dakota, Attorneys for defendant and appellee.
   MILLER, Chief Justice

[¶ 1.] In this medical malpractice case we reverse the trial court and hold that the “loss of chance” doctrine is recognized at common law in this state.

FACTS

[¶ 2.] On August 16, 1997, while visiting at a relative’s home in Wisconsin, David Jorgenson jumped from a deck on the house to a cement sidewalk below, a distance of approximately seven feet. The impact shattered his lower right leg and ankle. He was taken to a nearby hospital, where a doctor inserted pins into the leg and ankle and stabilized the injury with a device called an external fixator. Jorgen-son was discharged from the Wisconsin hospital five days later.

[¶ 3.] Upon returning to his home in Waubay, South Dakota, Jorgenson continued treatment of his injury with Dr. Michael Vener of Watertown, a physician specializing in orthopedic surgery. Dr. Vener, after noticing some drainage around the pins in Jorgenson’s leg, placed him on a weeklong course of antibiotics. Approximately one month after the accident, Dr. Vener re-aligned the external fixator. At that time, an open sore of approximately 1 1/2” was noted on the lower shin of Jorgenson’s right leg.

[¶4.] In late October, Jorgenson began feeling feverish. He also noticed drainage and a foul-smelling odor coming from the blister on his leg. Dr. Vener prescribed another course of antibiotics for him.

[¶ 5.] On November 10, 1997, Dr. Vener removed the external fixator. Approximately two weeks later, Jorgenson again noticed drainage and a foul-smelling odor coming from the open sore. However, this time he could also see a bone at the surface of the wound. Jorgenson immediately contacted Dr. Vener, who prescribed another course of oral and topical antibiotics. In addition, an appointment with a doctor in Fargo was scheduled to assess whether a “free flap” procedure should be done, in the words of Dr. Vener, “in order to salvage the limb.”

[¶ 6.] Jorgenson never went to the doctor in Fargo. Instead, he made an appointment at the Mayo Clinic in Rochester, Minnesota, on December 4th. There Jor-genson was told he had two options concerning treatment of the leg: attempt a bone and skin graft, which would encompass two years of treatment with a 60% chance of success, or immediate amputation. Jorgenson chose the latter. On December 9, 1997, he underwent a below-the-knee amputation of his right leg.

[¶ 7.] Jorgenson and his wife subsequently filed this medical malpractice action, claiming Dr. Vener failed to diagnose a chronic infection in the bone and also failed to refer him to an infectious disease specialist. According to Jorgenson, Dr. Vener’s negligence caused a “loss of the chance” for him to save his leg.

[¶ 8.] After discovery had ensued, Dr. Vener filed a motion for summary judgment. The trial court granted the motion. Jorgenson appeals.

STANDARD OF REVIEW

[¶ 9.] Our review of a trial court’s granting of summary judgment is well settled.

“In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.”

Millard v. City of Sioux Falls, 1999 SD 18, ¶ 8, 589 N.W.2d 217, 218 (quoting Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, ¶ 14, 581 N.W.2d 527, 531 (citations omitted)).

DECISION

[¶ 10.] The loss of chance doctrine is recognized in South Dakota.

[¶ 11.] After reviewing briefs and conducting a hearing, the trial court granted Vener’s motion for summary judgment, concluding that “the loss of chance doctrine is not compatible with South Dakota law.” Jorgenson asserts this decision was incorrect, contending South Dakota recognizes the loss of chance doctrine and that it encompasses the type of harm inflicted by Vener’s negligence. In contrast, Vener argues that the doctrine is not recognized in South Dakota, and that we should not lower our traditional causation standard by adopting it. Vener alternately asserts that even if the loss of chance doctrine is adopted in this state, Jorgenson did not present sufficient evidence to establish causation under the lower standard. We have not had the opportunity to determine whether the loss of chance doctrine is recognized at common law in this state.

[¶ 12.] The loss of chance doctrine involves the idea that a doctor, by doing something wrong, has decreased the patient’s chance of recovery or survival. Margaret T. Mangan, Comment, The Loss of Chance Doctrine: A Small Price to Pay for Human Life, 42 S.D.L.Rev. 279, 283 (1997). Various arguments opposing and supporting the doctrine have been proffered by courts and commentators. See Keith, supra, at 770-80; Mangan, supra, at 292-98 (and sources cited therein). Opponents generally contend that it alters or eliminates the requirement of proximate causation. Gooding v. University Hosp. Building, Inc., 445 So.2d 1015, 1019 (Fla. 1984); Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44, 65 (1990) (Riley, C.J., dissenting). They also assert that loss of chance relies on speculative statistical evidence in order to show how much chance was lost by the physician’s actions. Fennell v. Southern Maryland Hosp. Ctr., Inc., 320 Md. 776, 580 A.2d 206, 213-14 (1990). Further, they argue that it places medical malpractice liability on a separate standard compared to other professions. Gooding, 445 So.2d at 1019-1020. Finally, they contend that relaxation of the traditional causation standards will ultimately produce greater injustice in the form of increased medical malpractice litigation and higher malpractice insurance premiums, which will be passed on to patients. Fennell, 580 A.2d at 214-15; see also, Cooper v. Sisters of Charity of Cincinnati Inc., 27 Ohio St.2d 242, 272 N.E.2d 97, 103 (1971) (stating that such a rule would “produce more injustice than justice”).

[¶ 13.] Proponents of the doctrine assert that it permits at least some form of recovery for the victim, rather than the all- or-nothing approach under the traditional standard of proof of causation. Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 408 (Tex.1993) (Hightower, J., dissenting); Herskovits v. Group Health Coop. of Puget Sound, 99 Wash.2d 609, 664 P.2d 474, 486 (1983) (Pearson, J., concurring); see also Mangan, supra, at 292. A related argument is that it allows for allocation of losses attributable to a physician’s negligence. Kramer, 858 S.W.2d at 409 (Hightower, J., dissenting); Herskovits, 664 P.2d at 486-87 (Pearson, J., concurring); see also Mangan, supra, at 292-293; King, supra, at 1377. Proponents also contend that the costs of uncertainty (whether a patient would have recovered but for the physician’s negligence) should be imposed on the doctor rather than the patient. Kramer, 858 S.W.2d at 409 (Hightower, J., dissenting); Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Mangan, supra, at 293; King, supra, at 1378. Finally, they argue that any chance of recovery, no matter how small, is a legally cognizable interest (a patient’s health is valuable, even though the chance of recovery may be less than 50%). Kramer, 858 S.W.2d at 409 (Hightower, J., dissenting); Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Mangan, supra, at 293; King, supra, at 1378.

[¶ 14.] Loss of chance developed in response to the traditional standard of proof of causation. Mangan, supra, at 285. Normally, a plaintiff is required to show by a preponderance of the evidence that the defendant’s actions proximately caused the injuries suffered:

“The term ‘proximate cause’ contemplates an immediate cause which, in natural or probable sequence, produces the injury complained of. This excludes the idea of legal liability based on mere speculative possibilities or circumstances and conditions remotely connected to the events leading up to an injury.”
This Court further stated in Mulder that for proximate cause to exist, “the defendant’s conduct [must have] such an effect in producing the harm as to lead reasonable men to regard it as a cause” of the plaintiffs injury. 85 S.D. at 549, 186 N.W.2d at 887. Appellant has the burden of establishing that there is sufficient evidence for the factfinder “to reasonably conclude, without resort to speculation, that the preponderance favors liability. As such, [appellants are] not required to prove [their] case to a degree of absolute certainty.” Engberg v. Ford Motor Co., 87 S.D. 196, 202, 205 N.W.2d 104, 107 (1973).

Leslie v. City of Bonesteel, 303 N.W.2d 117, 119 (S.D.1981) (quoting Mulder v. Tague, 85 S.D. 544, 549, 186 N.W.2d 884, 887 (1971) (citations omitted)). Typically, unless the plaintiff can attribute more than a 50% probability of causation to the defendant’s negligence, he fails to meet his burden of proof. Thus, if a plaintiff can only show a 49% or less chance that the defendant’s actions caused his injury, he is foreclosed of all recovery. Conversely, if he can show a 51% or better chance that the defendant caused his injuries, he can recover 100% of the value of such injuries. Because of perceptions that the all-or-nothing approach of the traditional standard of proof of causation was unduly harsh, the loss of chance doctrine evolved.

[¶ 15.] Courts that adopt the loss of chance doctrine in effect recognize a lost chance as a distinct cause of action, treating it as the compensable injury, not the underlying injury itself. DeBurkarte, 393 N.W.2d at 137; Herskovits, 664 P.2d at 487 (Pearson, J., concurring); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 45 (5th Ed.Supp.1988). The following excerpt provides a concise illustration of the loss of chance concept:

[SJuppose that evidence offered at trial tends to show that plaintiffs decedent, having contracted a form of cancer, had a 40% chance of cure and that defendant physician’s negligent failure to make a correct diagnosis on first visit reduced the chance of cure to 25%. In such a case, if we view the “death” of plaintiffs decedent, or even “death from cancer,” as the relevant event, plaintiffs evidence falls short of supporting a fact finding that the negligence was, more probably than not, a but-for cause of that event. More probably than not, it would have happened anyway because of the cancer. One ground for criticism of this outcome is that it does not take adequate account of the fact that in all cases death is even more certain than taxes. Only the time and cause of death may be in doubt. If evidence supports a finding that, more probably than not, negligence hastened death, ordinarily a wrongful death action lies. Should an action lie, also, when evidence supports a finding that, more probably than not, negligence reduced the patient’s chance of survival? Expressed another way, the question is: should we view reduction of the patient’s chance of survival as the relevant event, and allow recovery if more probably than not negligence was a cause of that event?

Keeton et al., supra, § 41, at 272 (5th Ed.1984) (footnotes omitted). Concomitant with recognizing the lost chance as an interest worthy of redress, the doctrine bifurcates the tort elements of causation and valuation. See King, supra, at 1389, 1363 (stating that “[a]s has already been argued, causation and valuation are analytically different concepts. The causation inquiry determines whether a defendant should be required to compensate a plaintiff for a loss. The valuation inquiry determines how much compensation is required,” and “[t]his distinction seems to have eluded the courts, with the result that lost chances in many respects are compensated either as certainties or not at all.”) (emphasis in original).

[¶ 16.] As a distinct cause of action, the loss of a chance must still be proven under the traditional standard of proof. That is, the plaintiff must still prove by a preponderance of evidence that the defendant’s conduct operated to reduce his chance of a more favorable outcome. Once causation is proven under the traditional standard, a value must be placed on the loss of the chance. For purposes of valuation, the loss of chance doctrine recognizes and compensates possibilities as well as probabilities. Consider the following from Professor King:

Rejection of the all-or-nothing approach to valuing the loss of a chance does not necessarily affect the continuing validity of the all-or-nothing rule for the causation inquiry. Thus, while the loss of a not-better-than-even chance of avoiding some adverse result should be a com-pensable loss, it still must be established that the defendant caused the destruction of that chance. The all-or-nothing principle would ordinarily still operate in the causation inquiry even if it were abandoned for the purposes of valuing a lost chance.
To illustrate, assume that a patient suffering from cancer is killed because a surgical instrument fails due to errors in the manufacturing process. Assume that the chance that the patient would be cured of cancer was only 30%. Under the approach proposed in this article, the loss of that chance would be compensable. But if it did not appear more likely than not that the defendant was the manufacturer of the instrument, the plaintiff would ordinarily be denied recovery for that loss. In other words, proof of a not-better-than-even chance that the defendant caused the loss of the chance of a cure would not suffice. If, however, the plaintiff proved that the defendant was probably the source of the product and thus the cause of the loss, the plaintiff might recover the value of the loss. Thus, the all-or-nothing idea may continue to be applied to causation even if it is abandoned for the purposes of valuation.

King, supra, at 1394-95 (footnote omitted).

[¶ 17.] A review of the cases and commentary on the subject persuades us to conclude that a loss of chance is an actionable injury in our state. Adoption of the loss of chance doctrine properly balances the competing concerns of a patient who receives negligent treatment, against those of the doctor who practices in the inherently inexact science of medicine. Properly applied, the loss of chance doctrine does not alter or eliminate the requirement of proximate causation. Rather, a plaintiff must still prove by a preponderance of evidence, or more likely than not, that the defendant’s actions reduced her chance of a better outcome. The key to a successful application of this doctrine is recognizing and valuing the lost chance as the compensable injury, not the underlying injury itself. Furthermore, although the doctrine relies on statistical evidence in order to assign a value to the lost chance, such use of mathematical calculations is already necessary under the traditional standards of causation and valuation. As Professor King points out, “How else ... do we even know whether we are talking about a better-than-even chance when applying the all-or-nothing rule?” King, supra, at 1385.

[¶ 18.] Nor should we reject the doctrine simply because it ostensibly places medical malpractice on a different plane of liability compared to other types of malpractice. The fact that the doctrine has thus far only been applied in a medical malpractice context in all likelihood derives from the availability of statistical probabilities in the field of medical science; such information is not widely available in other malpractice contexts. See King, supra, at 1386 n. 111.

[¶ 19.] Finally, the medical profession’s fears of increased malpractice litigation as a result of this doctrine are unfounded. Adopting loss of chance will not denigrate rural South Dakota medical care, as the dissent bleakly forecasts. Our current medical malpractice regime expects that any physician, rural or urban, who is uncertain about his ability to treat a patient’s condition will refer the patient to another who is more skilled or experienced. If the doctor fails to do this, and the patient loses a chance at recovery, then he should be liable for medical malpractice. Whether medical care is administered in a rural or urban setting, among the latest technology or with the most primitive of instruments, a patient still has the right to expect competence in his physician’s care. As has been with past medical malpractice situations, an error in judgment will not create liability. See Mangan, supra, at 325. The loss of chance doctrine is tied to the physician’s negligence, not the location of his office or whether it is chock-full of technology. Importantly, the doctrine prevents a physician from concealing his negligent actions in cases where the likelihood of recovery was initially less than 50% even under optimal conditions; a doctor should not be allowed to escape with impunity if his negligent acts lowered the chances even further.

[¶ 20.] A crucial aspect of recognizing lost chance as a compensable injury is the idea that a physician should be subject to liability only to the extent that he contributed to the harm. Therefore, the amount of damages recoverable under such an action should be equal to the percent of chance lost multiplied by the total value of a complete recovery. McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476-77 (Okla.1987). This approach to valuing lost chance was proffered by Professor King in his article, supra, at 1382, and has been adopted by a number of other jurisdictions. See DeBurkarte, 393 N.W.2d at 137; Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824, 828 (1985); Roberts, 668 N.E.2d at 484; McKellips, 741 P.2d at 476.

[¶ 21.] Here, the record contains an affidavit from Dr. Mark E. Rupp, an infectious disease specialist from Omaha, Nebraska. After reviewing Jorgenson’s medical records and the deposition of another medical expert in the case, Rupp testified:

That based upon your Affiant’s review of these documents and your Affiant’s education, training and experience as an infectious disease physician, it is your Affiant’s opinion within a reasonable degree of medical certainty or probability, that because infection was not timely diagnosed and treated, Mr. Jorgenson lost a chance to prevent the subsequent outcome or amputation of his right lower extremity.

[¶ 22.] Vener’s motion for summary judgment was supported by transcripts of depositions from two other medical experts. One expert initially testified that he could not express an opinion about whether a referral to an infectious disease specialist early in the treatment process would have saved Jorgenson’s leg. Later on cross-examination, he stated that had the infection been treated earlier, he believed there would have been a better chance at saving the leg. He then clarified these seemingly inconsistent statements by testifying that had Jorgenson been under his charge, he would have changed the treatment regimen, but that still might not have saved Jorgenson’s leg.

[¶ 23.] Dr. Vener’s other medical expert testified that in his opinion a referral to an infectious disease expert would not have saved Jorgenson’s leg, and that there was no breach in the standard of care by Dr. Vener. Included in the record was an excerpt from a medical reference book, which generally stated that injuries such as Jorgenson’s were difficult to treat. According to the reference book, the ultimate outcome in a certain percentage of such cases was amputation.

[¶ 24.] Reviewing the evidence in a light most favorable to Jorgenson, a genuine issue of material fact exists whether Vener’s negligence caused the loss of a chance to save the leg. One expert testified that Vener caused a loss of the chance to save Jorgenson’s leg, another testified exactly the opposite, and a third was ambivalent. These disputes of fact cannot be properly disposed via summary judgment and must be resolved by the factfinder. Thus, summary judgment was improper, and the trial court’s decision must be reversed.

[¶ 25.] Reversed and remanded.

[¶26.] SABERS and GILBERTSON, Justices, concur.

[¶ 27.] AMUNDSON, Justice, concurs specially.

[¶ 28.] KONENKAMP, Justice, dissents.

AMUNDSON, Justice

(concurring specially).

[¶29.] I agree with the majority in adopting the lost chance doctrine for reasons as expressed by the Kansas Supreme Court in Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984). In Roberson, the court concluded that by not allowing the plaintiffs case to go forward,

in essence, declares open season on critically ill or injured persons as care providers would be free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment. Under such rationale a segment of society often least able to exercise independent judgment would be at the mercy of those professionals on whom it must rely for life-saving health care.

Id. at 160.

[¶ 30.] The Kansas Supreme Court again addressed this doctrine in Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994) in deciding whether or not this doctrine should apply to lost chance of recovery. The court held that it did and stated:

Although a variety of approaches has emerged among jurisdictions which have examined the loss of chance theory, three general approaches are utilized by courts confronted with the theory and the standard of proof to be adopted: (1) the all or nothing approach; (2) the relaxed standard of proof approach; and (3) the any loss of chance approach.
The all or nothing approach, or traditional approach, is that approach followed by jurisdictions which refuse to recognize the “lost chance” as a distinct' and compensable injury. These jurisdictions, which are now probably the minority, strictly adhere to the principle that the plaintiff must prove that the defendant’s negligence was the proximate cause of the injury or death suffered by the plaintiff. As such, the plaintiff must establish that there existed a better-than-even chance of avoiding the physical injury or resulting death. If the plaintiff meets this burden, compensation is awarded for the particular injury or wrongful death suffered, not the lost chance of a better recovery or survival. Thus, these jurisdictions refuse to relax the traditional view of proximate cause in medical malpractice actions. As pointed out in Roberson, this argument is best illustrated in Cooper v. Sisters of Charity, 27 Ohio St.2d 242, 272 N.E.2d 97 (1971). As the all or nothing (traditional) approach is nothing more than a rejection of the loss of chance theory, which we have already determined is applicable in Kansas, further consideration of the traditional standard of proof would be irrelevant.
The relaxed standard of proof approach, commonly referred to as the “substantial chance” approach, requires plaintiff to present evidence that a substantial or significant chance of survival or better recovery was lost. If plaintiff meets this initial threshold, the causation issue is submitted to the jury, using the traditional proximate cause standard to ascertain whether, in fact, the alleged malpractice resulted in the loss of a substantial or significant chance. Thus, the jury must find by a preponderance of the evidence that the alleged negligence was the proximate cause of the lost chance, but the lost chance itself need only be a substantial or significant chance, for a better result, absent any malpractice, rather than a greater than 50 percent chance of a better result.

Id. at 183-84.

[¶ 31.] This Court should also adopt this substantial chance approach to determine whether a plaintiff should be compensated and the amount of any compensation based on what they lost by being deprived of the opportunity to receive early treatment and the chance of realizing gain in avoiding physical harm or loss of life. This approach only provides that an individual is responsible for their part of the resulting damages. A percentage valuation and an assessment of damages for a lost chance of survival does not over compensate an injured party, nor does it unfairly make the defendant responsible for fault unattributable to that specific defendant.

KONENKAMP, Justice

(dissenting).

[¶ 32.] Today’s decision unfairly targets the medical profession by needlessly creating a new formula to expand damage awards and a new class of plaintiffs to sue for them. The hallmark of every notable decision signaling a profound change in the law is a serious injustice that would otherwise go unrelieved. This case, however, offers a poor prototype for the sweeping changes in medical malpractice liability the Court now instigates. Under the common law process, in areas legislation has yet to control, the courts may advance the law to fashion civil remedies. SDCL 1-1-24. But as Professor Llewellyn once expressed, “conscious reshaping must so move as to hold the degree of movement down to the degree which need truly presses.” Karl N. Llewellyn, The Bramble Bush 156 (1930). If a need exists at all, let it be shown in the facts of a case and in the absence of current law to offer a sufficient redress. Whatever pressing need might be unfilled here, the plaintiff has utterly failed to show it.

1. No Pacts Support Changing Medical Malpractice Law

[¶ 33.] Parties opposing summary judgment must meet fact with fact, demonstrating that genuine issues remain for trial. SDCL 15-6-56(e). Curiously, the plaintiffs appellate briefs contain no facts. None. Perhaps this is no oversight, though it is a violation of our rules. See SDCL 15-26A-60(5). Instead, the plaintiffs argument consists of an abstract discussion on the merits of adopting a new rule for imposing additional liability on the medical profession. Thus, we are urged to approve the lost chance theory and radically transform medical malpractice law in South Dakota seemingly as a matter of progressive policy, as if the facts should make no difference.

[¶ 34.] In examining the record, nothing emerges to justify creating a new and exceptional way to recover damages against medical providers. Nonetheless, the Court chooses a single sentence out of the entire record for its reason to remake the law. In an affidavit submitted by Dr. Rupp of Nebraska, he opines that Jorgen-son “lost a chance to prevent the subsequent outcome or amputation of his right lower extremity.” What chance? A substantial chance, an even chance, a miniscule chance? Rupp’s affidavit offers naught. In oral argument, however, Jor-genson’s counsel repeatedly admitted, “We cannot prove a percentage of damages.” Indeed, counsel argued for full compensation if any chance, no matter how small, was lost because of negligence: “It would not be worth it,” he said, to seek only a percentage. Thus the theory this Court adopts is not the one the plaintiff espouses. Even so, counsel supposed that if the Court nonetheless remanded the case for trial on the lost percentage theory, counsel will “find someone” to testify on percentages. Surely, reversing summary judgment on a promise to find more evidence is without precedent.

[¶ 35.] Jorgenson himself elected to amputate rather than take prolonged treatment to heal his leg. He chose amputation although his doctors at the Myo Clinic told him he had a sixty percent chance of saving it. Now, he will seek compensation not for his lost leg, but for the percentage probability he had of saving it while in the care of his former doctor, before he went to the Mayo Clinic. If this seems legally insubstantial and illusory, imagine what a jury will strain to make of it. Most courts that apply this theory hold that to be accurately valued the lost chance must be substantial, identifiable, and quantifiable, without resort to conjecture or speculation. Fennell v. Southern Maryland Hosp. Center, Inc., 320 Md. 776, 580 A.2d 206, 212 (1990) (citation omitted). With the admitted lack of expert evidence on what chance existed, it makes no sense to order the trial judge to submit this case to a jury. How this can meet the Daubert standard is mystifying. See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see also Rogen v. Monson, 2000 SD 51, ¶¶ 26-28, 609 N.W.2d 456, 462-63 (Konenkamp, J., concurring). If the members of this Court are determined to adopt the lost chance theory, they should wait at least until a case arrives to justify it.

2. Changes in Doctrine Should Await a Demonstrated Need

[¶ 36.] In keeping with the principles of judicial restraint, adopting or rejecting, this new tort should await the case that truly calls it into issue. To confer this theory with premature lodgment in our state only encourages frivolous and costly experimentation in our courts. When the appropriate time comes, we should carefully consider all the advantages and disadvantages. Here, the Court generally discusses both sides of the question, but without weighing South Dakota’s specific circumstances. Even if the facts support a new rule, adopting it presents serious questions for the people of this state. Societal costs and potential for unfairness resulting from expanded liability against a particular segment of the economy, present real problems. See Fennell, 580 A.2d at 214 (quoting Gaver v. Harrant, 316 Md. 17, 557 A.2d 210, 217 (1989)).

[¶37.] South Dakota assuredly retains significant health care concerns. For instance, the more populous areas seem to have adequate numbers of medical providers, but many -of our state’s' small communities have no doctors at all. The cost for maintaining them is simply too high. Some rural communities rely on physician assistants, 'nurse practitioners, and other medically trained people. They too will be subject to extended liability under the broad new rule the Court creates today. What will it cost our small communities?

[¶ 38.] Rural medical providers will be liable for increased damages the same as their larger community counterparts, even though rural medicine is severely constrained by economics in the availability of such things as the latest diagnostic equipment. Emergency providers in rural areas may be particularly vulnerable. Deciding whether to treat immediately or stabilize for transport a critically ill patient can be easily second-guessed, especially when the patient’s chances are .precarious even in the best of circumstances. Although our Court gives little regard to such worries, other courts lend more weight to this reality. In rejecting the loss of chance theory, an Alaska court considered the adverse affect on rural medical care, writing, “the adoption of any version of ‘loss of chance’ seems particularly ill-suited to a state like Alaska where medical care must be delivered in remote locations....” See Crosby v. United States, 48 F.Supp.2d 924, 932 (D.Alaska 1999) (listing the advantages and disadvantages of the lost chance theory).

[¶ 39.] Deciding whether to widely expand liability against members of the medical profession invokes serious policy concerns, perhaps more properly resolved by our Legislature. Fennell, 580 A.2d at 214. Courts should give “appropriate deference to legislative action embracing policy goals and initiative.” Crosby, 48 F.Supp.2d at 930. The Crosby court, in deciding whether a claim for loss of chance could be maintained in a medical malpractice action under Alaska law, stated that the doctrine “involves significant and far-reaching policy concerns affecting the quality and cost of health care....” Id. at 931. Such questions, the court determined, are best left to the Legislature to address and resolve, as that forum is equipped to conduct hearings, collect data, analyze the competing concerns, and make more informed decisions.

[¶ 40.] The prospect of increased costs to the consumer cannot be discounted. It seems naive to suggest that creating a new cause of action and an additional way to recover damages where none could be recovered before will not increase claims. The likely effect of this new theory will be higher malpractice insurance premiums, which in turn translate into higher costs for health care with the danger of losing vital health services where they are most needed. In Knowles v. United States, 1996 SD 10, ¶ 60, 544 N.W.2d 183, 196, we acknowledged our Legislature’s grave concern “about the availability and cost of health care, especially in rural areas and small communities.” “Seeing a direct correlation between the availability of health services and skyrocketing medical malpractice insurance premiums,” the Legislature enacted a damages cap. Id. That these concerns persist is shown in the fact that after our decision in Knowles holding the former damages cap unconstitutional, the Legislature reenacted a damages cap in 1997. See SDCL 21-3-11.

[¶ 41.] This Court writes that the loss of chance doctrine has so far been applied only to medical malpractice situations and that most likely this is because statistics and probabilities in medicine are not as widely available in other types of malpractice. Yet we must be prepared to consider the expansion of this rule to other forms of professional malpractice. It seems almost discriminative to suggest, as some courts have, that only doctors, nurses, and their colleagues in the medical field should stand subject to greater liability for their errors. In fairness, “it is doubtful that there is any principled way we could prevent its application to similar actions involving other professions.” Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 406 (Tex.1993).

[¶42.] To be sure, the present system has its flaws. As the Court points out, a doctor’s negligence goes unrecompensed if a patient’s chance of recovery was less than fifty percent. Our statutes do not explicitly foreclose the lost chance theory. Plaintiffs may recover “for all the detriment proximately caused” by negligence, which might arguably include the loss of a chance to recuperate. SDCL 21-3-1 (emphasis added). But the Court’s solution provides no panacea. In fact, it may only multiply injustice. The Fennell opinion used this apt example:

[Ajssume a hypothetical group of 99 cancer patients, each of whom would have had a 33 1/3% chance of survival. Each received negligent medical care, and all 99 died. Traditional tort law would deny recovery in all 99 cases because each patient had less than a 50% chance of recovery and the probable cause of death was the pre-existing cancer not the negligence. Statistically, had all 99 received proper treatment, 33 would have lived and 66 would have died; so the traditional rule would have statistically produced 33 errors by denying recovery to all 99.
The loss of chance rule would allow all 99 patients to recover, but each would recover 33 1/3% of the normal value of the case. Again, with proper care 33 patients would have survived. Thus, the 33 patients who statistically would have survived with proper care would receive only one-third of the appropriate recovery, while the 66 patients who died as a result of the pre-existing condition, not the negligence, would be overcompensated by one-third. The loss of chance rule would have produced errors in all 99 cases.

580 A.2d at 212. Such concerns have caused a considerable number of jurisdictions to reject this theory. See, e.g., United States v. Cumberbatch, 647 A.2d 1098 (Del.1994); Gooding v. University Hosp. Bldg. Inc., 445 So.2d 1015 (Fla.1984); Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 830 P.2d 1185 (1992); Fennell, 320 Md. 776, 580 A.2d 206; Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993); Ladner v. Campbell, 515 So.2d 882 (Miss.1987); Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 512 A.2d 1126 (1986); Kramer, 858 S.W.2d 397.

[¶ 43.] Professor King, whose percentage recovery scheme this Court embraces today, describes his theory as akin to suing on a lost “raffle ticket.” Perhaps that is a fitting analogue. But should our laws function on the values that govern lotteries? See Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44, 58-68 (1990) (Riley, C.J., dissenting). For South Dakota, this is no simple question. We are premature in approving the loss of chance theory. A decision should await the proper case before accepting or rejecting it.

123.22 Pattern Instructions Kansas 3d

123.22 LOSS OF CHANCE — BETTER RECOVERY — CAUSATION

The plaintiff has claimed that (he)(she) was denied a substantial chance for better recovery due to the fault of the defendant Before you can find the defendant to be at fault, you must find:

1. That __ would have had a substantial chance for better recovery if the _ had been (diagnosed)(treated) in á timely manner and under the applicable standard of care;

2. That the defendant failed to (diagnose) (treat)_(in a timely manner) (under the applicable standard of care); and .

3. That the resulting Injury or lessened degree of recovery suffered by _as a result of defendant’s failure was substantial.

A “substantial chance for better recovery” is one which is capable of being estimated, weighed, judged, or recognized by a reasonable mind. As used in this instruction, a “substantial factor” must be distinguished from a factor which had a merely negligible effect in causing _⅛ injury.

Pattern Instructions Kansas 3d 181.06

181.06 VERDICT FORM — LOSS OF CHANCE ISSUE — BETTER RECOVERY

We, the jury, present the following answers to the questions submitted by the court:

1- Do you find ___ was denied an appreciable chance for better recovery due to the fault of the defendant? Yes_No

[Proceed to question 2 and following questions only if you answered “yes” to question 1.]

2. What do you find, as a percentage of one hundred (100), were _⅛ chances for better recovery, if (he) (she) had received proper medical care? %

3. What do you find, as a percentage of one hundred (100), were _⅛ chances for better recovery under the care actually given? _%

4. Without considering your answers under any of the above questions, proceed to determine the damages sustained by___.

A. Noneconomic loss to date $__

B. Future noneconomic loss $__

C. Medical expenses to date $_

D.'Future medical expenses $__

E. Economic loss to date $_

F. Future economic loss $_

TOTAL DAMAGES $_

5. Our finding of monetary damages for noneconomic toss stated In paragraphs 4A and 4B includes ⅛ for pain and suffering.

Agreement on each of the above questions was by ten or more jurors.

Yes_ No __

Presiding Juror

      . The parties cite Limpert v. Bail, 447 N.W.2d 48 (S.D.1989), Steckman v. Silver Moon, Inc., 77 S.D. 206, 90 N.W.2d 170 (1958), Lohr v. Watson, 68 S.D. 298, 2 N.W.2d 6 (1942), Voegeli v. Lewis, 568 F.2d 89 (8th Cir.1977), and other cases in support of their respective positions. However, none of these cases expressly endorse or renounce the loss of chance doctrine in a medical malpractice context.

      . Vener correctly points out that the loss of chance doctrine has its roots in at least three sources. One source is Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981). The doctrine has also been attributed to § 323(a) of the Restatement (Second) of Torts, which provides:
      One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm[.]
      Restatement (Second) of Torts § 323(a) (1965). A third source is a 1966 opinion from the Fourth Circuit Court of Appeals, Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966), wherein the court stated:
      When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.
      For a current, comprehensive review of the loss of chance doctrine, see generally, Man-gan, supra, and Darrell L. Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas, 44 Baylor L.Rev. 759 (1992).

      . Mangan and Keith identified approximately fifteen states that have rejected the loss of chance doctrine. Mangan, supra, at 294 n. 143; Keith, supra, at 777 n. 112. Notable among those jurisdictions rejecting the doctrine is Minnesota, in Cornfeldt v. Tongen, 295 N.W.2d 638 (Minn. 1980), and Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993).

      . The Michigan legislature overruled the majority’s acceptance of the loss of chance doctrine in Falcon by enacting the following statutory amendment:
      In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.
      Mich. Comp. Laws § 600.2912a(2)(2000) (amended by 1993 Mich. Pub. Acts No. 78). Four years later, the Michigan Supreme Court further rejected the loss of chance doctrine by failing to recognize it in a case involving physical harm less than death. Weymers v. Khera, 454 Mich. 639, 563 N.W.2d 647 (1997).

      . Cooper has since been overruled by the Ohio Supreme Court in Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480 (1996). Ohio now recognizes the loss of chance doctrine.

      . Mangan and Keith identified approximately nineteen states that have accepted the loss of chance doctrine. See Mangan, supra, at 290 n. 117; Keith, supra, at 770 n. 64. Notable among those jurisdictions adopting the doctrine is Iowa, in DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986).

      . As proffered by Professor King:
      The adoption of the all-or-nothing approach to the loss of a chance has the obvious effect of enhancing the importance of the standard of proof, which determines the degree of certainty with which the party with the burden of proof must satisfy that burden in order to prevail. Perhaps for this reason, when results under the all-or-nothing rule have appeared too harsh to courts, attention has generally focused on the standard of proof as the appropriate doctrine for reformulation.

      Atlempts to deal with the problem posed by the destruction of a chance by tinkering with the standard of proof can only further confuse matters of loss assignment. If the law on this question is to be rationalized, a vehicle other than the standard of proof will have to be used. The appropriate vehicle is a reevaluation of the traditional ways of thinking about the interest for which relief is sought and the role of chance in valuing that interest.
      King, supra, at 1366, 1370 (footnote omitted).

      . The patient's task under the loss of chance doctrine as now adopted in South Dakota would be to first prove that the physician’s conduct caused the loss of the chance by a preponderance of the evidence. Once causation has been established, the value of the injury, whether a possibility (less than 50%) or a probability (greater than 50%), is com-pensable. Assuming, for example, that a patient had a 40% chance of recovery under optimal conditions, and the physician's negligence destroyed that chance, the value of the lost chance would be 40% of the total value of a complete recovery. Similarly, if the patient’s chance at recovery was 60% and the physician's negligence eliminated that chance, the value of the lost chance would be 60% of the value of a complete recovery. Or, if instead of completely eliminating the chance of recovery, the physician's negligence merely reduced the chance of recovery from 40% to 20%, then the value of the lost chance would be 20% of the value of a complete recovery.

      . The loss of chance should limit exposure to fault attributable to the defendant. This apportionment of fault was discussed in Delaney. In Delaney, the court stated:
      "Application of the lost chance principle in medical malpractice cases often involves circumstances where the plaintiff or patient was already suffering from some disease or disorder at the time the health care malpractice occurred. Consequently, the loss of chance doctrine selves to fairly compensate the plaintiff for the tortious deprivation of an opportunity to live longer and recover from a physical injwy or condition inflicted by the defendant's wrongful act or omission. In the medical malpractice context, lost chance endeavors to allow a plaintiff to recover for the diminished chances of surviving or recovering from a disease or malady which results from the health care defendant's malpractice.”
      873 P.2d at 182 (quoting Keith, Loss of Chance: A Modem Proportional Approach to Damages in Texas, 44 Baylor L.Rev. 759, 760 (1992)) (emphasis in original).

      . Attached to this writing are copies from the pattern instructions of Kansas 123.22 and 181.06 which deal with this doctrine. These attachments are provided only to assist the trial court in finalizing the jury instructions to be given at a later date.


source: Caselaw Access Project

author: GILBERTSON, Justice. MILLER, Chief Justice SABERS, Justice AMUNDSON, Justice

license: Public Domain

text:
    2000 SD 114
    James L. THARES and Traci L. Thares, Plaintiffs and Appellants, v. BROWN COUNTY BOARD OF EQUALIZATION, Defendants and Appellees.
    No. 21366.
    Supreme Court of South Dakota.
    Considered on Briefs May 30, 2000.
    Decided Aug. 23, 2000.

      James M. Cremer of Bantz, Gosch, Cremer, Peterson & Sommers, Aberdeen, Attorneys for plaintiffs and appellants.
    Mark Barnett Attorney General David D. Wiest Assistant Attorney General, Pierre, Harvey A. Oliver, Jr., Brown County State’s Attorney Victor B. Fischbach Brown County Deputy State’s Attorney, Aberdeen, Attorneys for defendants and appellees.
   GILBERTSON, Justice.

[¶ 1.] James L. Thares and Traci L. Thares (Thares) appeal the Brown County Board of Equalization’s (County) assessment of their property, which was based on SDCL 10-6-33.14. Thares challenge the constitutionality of this statute. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The facts in this case are stipulated. Thares purchased approximately 80 acres of land in Brown County on July 30, 1998 for $125,456, or $1600 per acre. They constructed a house, shop, and a horse barn on a portion of the land. They used the remainder of the land to grow crops and pasture livestock. Just prior to the purchase, the land was assessed and classified for tax purposes as agricultural property in the amount of $450 per acre, or $35,290. After the sale, County reclassified the Thares’ property as non-agricultural, and the 1999 assessment raised the valuation of the land for tax purposes to $116,690. County relied upon SDCL 10-6-33.14 in raising the assessment, which requires all agricultural property that sells for more than 150 percent of its agricultural income value to be classified as a non-agricultural acreage.

[¶ 3.] After a parcel of agricultural property meets the sale requirements of SDCL 10-6-33.14, the land is then valued “at the price for which such land sold multiplied times the level of assessment for non-agricultural property within the county.” SDCL 10-6-83.18. Barring a successful administrative appeal by the taxpayer, once the land is classified as non-agricultural land, it remains so classified for a minimum of five years pursuant to SDCL 10-6-33.17. After the five-year period, the director of equalization may reclassify the non-agricultural acreage as agricultural land if the land remains in agricultural use and the landowner submits an annual application to County.

[¶ 4.] The circuit court upheld the constitutionality of SDCL 10-6-33.14. Thares now challenge the constitutionality of SDCL 10-6-33.14 et seq. in this Court.

STANDARD OF REVIEW

[¶ 5.] Since the parties have stipulated to the facts in this case, there are no factual issues to be resolved. Thus, this case presents a question of law, and this Court reviews the circuit court’s decision de novo, giving no deference to its legal conclusions. Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 6, 592 N.W.2d 596, 598 (citing Thompson v. Summers, 1997 SD 103, ¶ 5, 567 N.W.2d 387, 390) (other citation omitted).

ANALYSIS AND DECISION

[¶ 6.] The South Dakota Constitution gives the legislature authority to create as many classes of non-agricultural property as it desires, so long as taxes are uniform on property within the same class. Great Northern Railway v. Whitfield, 65 S.D. 173, 272 N.W. 787, 791 (1937). S.D. Const. Art. VIII, § 15 provides:

The Legislature shall make such provision by general taxation and by authorizing the school corporations to levy such additional taxes as with the income from the permanent school fund shall secure a thorough and efficient system of common schools throughout the state. The Legislature is empowered to classify properties within school districts for purposes of school taxation, and may constitute agricultural property a separate class. Taxes shall be uniform on all property in the same class.

Thus, under the state constitution, agricultural land constitutes its own, separate and distinct class. See also SDCL 10-6-31, which states all property for the purposes of taxation is classified into separate classes of agricultural property and non-agricultural property.

[¶ 7.] In Gould v. Pennington County Bd. of Equalization, 1997 SD 129, 570 N.W.2d 846, we held SDCL 10-6-58 to be unconstitutional, as it created two classes of agricultural property, by classifying in its own separate agricultural class, agricultural property which sold for a price greater than 150 percent of its agricultural income producing value. SDCL 10-6-58 provided:

Any agricultural land, as defined in § 10-6-31.3, which sells for more than one hundred fifty percent of its agricultural income value is hereby classified for purposes of ad valorem taxation. The agricultural income value shall be determined pursuant to § 10-6-62.

We again reaffirmed our previous holding that while classes of non-agricultural property can be created by the legislature without limit, agricultural land is limited by the constitution to but a single class. Gould, 1997 SD 129, ¶ 8, 570 N.W.2d at 848 (citing Great Northern Railway, 65 S.D. 173, 272 N.W. 787, 792). We then determined that:

The adopted criteria [of SDCL 10-6-58] bears no relationship to any agricultural factors (type of land, productivity, etc.) but is based almost entirely on its sales price. Valuing the agricultural land, as in the present case, based upon its sales price is to set it apart from agricultural property and treat it as “non-agricultural,” or other property, (emphasis in original).

Id. ¶ 17, 570 N.W.2d at 849-50. Thus the constitutional infirmity was not a separate classification for this type of property, but making the classification an agricultural one.

[¶ 8.] In 1998 the legislature enacted a new statutory classification in response to our decision in Gould. It included SDCL 10-6-33.14, “[c]lassification of non-agricultural acreage,” which provides:

Any agricultural land, as defined in § 10-6-31.3, which sells for more than one hundred fifty percent of its agricultural income value is hereby classified for purposes of ad valorem taxation as a non-agricultural acreage. The agricultural income value shall be determined pursuant to § 10-6-33.15. (emphasis added).

Thares now challenge the constitutionality of the statute, contending that even with the added phrase “as a non-agricultural acreage,” based upon our analysis in Gould, SDCL 10-6-33.14 is unconstitutional. Thares contend that SDCL 10-6-33.14 still creates an impermissible subclassification of agricultural property which is taxed at a higher rate. County argues that SDCL 10-6-33.14 is constitutional, because instead of placing Thares’ land into a subclass of agricultural property, their property is reclassified from agricultural to non-agricultural acreage. We agree "with County.

[¶ 9.] Initially, we must note that “there is a strong presumption that the laws enacted by the legislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution.” Gould, 1997 SD 129, ¶ 6, 570 N.W.2d at 847. “[T]he party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.” Id. (citing Cary v. City of Rapid City, South Dakota, 1997 SD 18, ¶ 10, 559 N.W.2d 891, 893 (citing Sedlacek v. South Dakota Teener Baseball Program, 437 N.W.2d 866, 868 (S.D.1989))).

[¶ 10.] Additionally, the legislature has broad power to classify property for taxation purposes:

Where there is power to impose a license or privilege tax, the Legislature may classify and may subclassify the objects of the tax upon some reasonable basis.... The determination of the question of classification is primarily for the Legislature and courts will not interfere unless the classification is clearly arbitrary and unreasonable. “The power of the state to classify for purposes of taxation is of wide range and flexibility.” Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 37, 48 S.Ct. 423, 425, 72 L.Ed. 770, 774.

State v. Black Hills Transportation Co., 71 S.D. 28, 20 N.W.2d 683, 685 (1945). “ ‘It is well agreed that the legislature may select some occupations for taxation and not others, and may classify for the purpose provided the classification is reasonable and not arbitrary and bears some relation to the subject in hand.’ ” Berdahl v. Gillis, 81 S.D. 436, 136 N.W.2d 633, 638 (1965) (quoting State v. Welsh, 61 S.D. 593, 641, 251 N.W. 189, 210 (1933)); see also Brink Electric Construction Co. v. State, 472 N.W.2d 493, 501 (S.D.1991) (quoting Phillips Chemical Co. v. Dumas School District, 361 U.S. 376, 385, 80 S.Ct. 474, 480, 4 L.Ed.2d 384, 390 (1960) (stating “the State’s power to. classify is, indeed, extremely broad, and its discretion is limited only by constitutional rights and by the doctrine that a classification may not be palpably arbitrary.”)); Enron Corp. v. Spring Indep. School Dist., 922 S.W.2d 931, 936 (Tex.1996) (stating the state legislature may constitutionally draw any distinction in classifying property for ad valorem tax purposes, as long as the classifications are not unreasonable, arbitrary, or capricious). Notably, Thares do not argue County’s decision to classify their property as non-agricultural land was arbitrary and capricious, but instead focus solely on their constitutional claim.

[¶ 11.] We concluded in Gould that the phrase “... may constitute agricultural property as a separate class,” indicates that agricultural property, if classified separately, was to form a class unto itself. 1997 SD 129, ¶ 13, 570 N.W.2d at 849. “The use of the language ‘a separate class ’ in the singular, ... [establishes] that agriculture was to be designated as one class of property and all other properties were the other classes of property.” Id. (emphasis in original). However, as noted there is no prohibition on the number of non-agricultural classes of property allowed under our state constitution. Great Northern, supra. That determination has been constitutionally left to the legislature. For example, SDCL 10-6-31.2 creates a separate class or sub-class for leased school lands, while commercial, industrial and nonresidential property is referenced in SDCL 10-6-35.19.

[¶ 12.] SDCL 10-6-33.14 does create a separate class of land, however, it creates a nonagricultural class of land, i.e., land that “sold for more than 150 percent of its agricultural income-producing value.” By enacting this statute, the legislature determined that all agricultural land which sells for more than 150 percent of its agricultural income-producing value, would thus not fall within the definition of “agricultural land” in SDCL 10-6-31 and SDCL 10 — 6—31.3. The circuit court was correct when it concluded “the legislature created an additional non-agricultural classification, not a second agricultural class.” Thus, since SDCL 10-6-33.14 reclassifies property from agricultural to non-agricultural property, the Thares’ land becomes by statutory definition, a “non-agricultural acreage.”

[¶ 13.] Prior to its purchase, the land in question was valued at $450 per acre. However, Thares purchased the property for $1600 per acre, nearly four times its previous agricultural valuation. While Thares claim the land continues to be principally used as agricultural land, since the purchase they have built a house and other structures on the property. It is simply not reasonable or logical to allow Thares to now own this property, bought at $1600 per acre, to only be assessed for taxation purposes at $450 per acre, or $35,290, the original assessment before application of SDCL 10-6-33.14, and limit any increased assessment to post purchase improvements. “[A] sale for a purchase price which is three or more times the agricultural assessment placed on the land creates a red flag for the assessor to reevaluate the classification of such land as agricultural....” Straughn v. K & K Land Management, Inc., 326 So.2d 421, 424-25 (Fla.1976).

[¶ 14.] In Straughn, the appellee’s land was reclassified from agricultural to non-agricultural, resulting in a substantial increase in his tax liability. The appellee challenged the constitutionality of the Florida statute which gave the tax assessor the authority to classify the land as nonagricultural, arguing that his land was being used for bona fide agricultural purposes at the time of assessment, and thus qualified for a lower agricultural tax rate. Id. at 423.

[¶ 15.] In upholding the constitutionality of the statute in question, the Straughn court explained the rationale behind the presumption that agricultural land which sells for three or more times its assessment, is not being used for bona fide agricultural purposes:

The reduced taxation for farmland is based on a legislative determination that agriculture cannot reasonably be expected to withstand the tax burden of the highest and best use to which such land might be put.... The rational presumption imposed by the Legislature is that land purchased for three or more times its assessed agricultural value is not intended to be put to ‘good faith commercial agricultural use’ per [the Florida statutes]. Property not put to such use is not entitled to the legislatively-created exception to taxation at full value represented by the agricultural use tax status. But a property owner may yet overcome the presumption that land purchased at three times its agricultural value falls into the non-agricultural category.

Id. at 424. Also important to the Straughn court’s finding that the statute was constitutional was the fact that the presumption created by Florida statute was rebuttable by the taxpayer, who is able to “come forward with evidence of ‘special circumstances’ within the framework of [the Florida statutes] to establish that the land continues to be used for ‘bona fide agricultural purposes’.” Id. at 425.

[¶ 16.] Similarly, in South Dakota the legislature provides the taxpayer with an appeals route to challenge a decision of the director of equalization to classify real estate as non-agricultural rather than agricultural based on SDCL 10-6-33.14. See SDCL 10-11-16, 10-11-16.1, 10-11-22 and 10-11-26(3). With the passage of SDCL 10-6-33.14, the legislature created an alternative method for taxpayers to return their land to agricultural taxation status by following the provisions set forth in SDCL 10-6-33.17. SDCL 10-6-33.17 provides:

Any land which is classified pursuant to §§ 10-6-33.14 to 10-6-33.19 shall remain so classified for a minimum of five years. Five years after the land is so classified, the land may be reclassified as agricultural land if the land remains in agricultural use during the five year period and if the owner of the land submits an annual application to the director of equalization. The application shall include verified documentation that ■ the land has been in agricultural use during [the] past year. If the land meets the criteria set forth in § 10-6-31.3, has been in agricultural use for five years, and the application requirement in this section is complied with, the director of equalization may reclassify the nonagricultural acreage as agricultural land.

[¶ 17.] It is only reasonable to conclude that when agricultural land sells for a substantially higher price than the income it is capable of generating, it has achieved a nonagricultural value in excess of its prior agricultural value and the property’s classification should be reconsidered. “[A]s long as a classification is reasonable and not arbitrary and bears some relation to the subject at hand, ...” this Court will uphold the legislature’s classifications. In re Sales Tax Liability of Valley Queen Cheese, 387 N.W.2d 39, 41 (S.D.1986). As long as a “plausible policy reason for the classification” exists, classifications should be held constitutional. Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 2332, 120 L.Ed.2d 1, 13 (1992). This standard is held to be “especially deferential in the context of classifications made by complex tax laws. [I]n structuring internal taxation schemes ‘the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.’ ” Id.

[¶ 18.] Our state constitution gives the legislature power to divide all property into separate classes, one agricultural and unlimited non-agricultural property. Gould, 1997 SD 129, ¶ 13, 570 N.W.2d at 849. Today we re-affirm our conclusion in Gould that, “[v]aluing the agricultural land, as in the present case, based upon its sales price is to set it apart from agricultural property and treat it as ‘non-agricultural,’ or other property.” Id. ¶ 17, 570 N.W.2d at 849-50. The legislature has done nothing more than follow our conclusion and remedied its prior classification error which we struck down in Gould. It recognized there are instances where the current economic climate dictates land that has been used for agriculture has acquired a higher value for non-agricultural purposes as established by a fair market sale. See e.g., Telkamp v. S.D. Bd. of Equal., 515 N.W.2d 689, 692 (S.D.1994). The legislature, now in a constitutional manner, declares for taxation purposes what the free market system has already established, that the land’s value as established by a recent sale, dictates it is no longer an “agricultural acreage.”

[¶ 19.] Here, by enacting SDCL 10-6-33.14, the legislature created another class of nonagrieultural property, one in which sale price as related to income is for the most part determinative of whether land will be classified as nonagrieultural. If this Court were to hold SDCL 10-6-33.14 et seq. unconstitutional, the legislature would be severely limited in any power to create different classes of nonagrieultural property outside of municipal boundaries, and county tax assessors would not be able to accurately assess the true value of property which sells for much more than its agricultural income producing value. This Court has also stated: “[a]ny legislative act is accorded a presumption in favor of constitutionality and that presumption is not overcome until the unconstitutionality of the act is clearly and unmistakably shown and there is no reasonable doubt that it violates fundamental constitutional principles.” West Two Rivers Ranch v. Pennington Co., 1996 SD 70, ¶ 15, 549 N.W.2d 683, 687 (quoting Accounts Management, Inc. v. Williams, 484 N.W.2d 297, 299 (S.D.1992)). Thares have not established beyond a reasonable doubt that SDCL 10-6-33.14 is clearly and unmistakably unconstitutional. Therefore, this Court upholds the constitutionality of SDCL 10-6-33.14 et seq. The County’s decision assessing the value of Thares’ property at $116,690 is affirmed.

[¶ 20.] MILLER, Chief Justice, and KONENKAMP, Justice, concur specially.

[¶ 21.] SABERS, Justice, dissents.

[¶ 22.] AMUNDSON, Justice, concurs in the result of the dissent.

MILLER, Chief Justice

(concurring specially).

[¶ 23.] Despite Justice Sabers’ interesting and persuasive argument that SDCL 10-6-33.14 unconstitutionally creates two classes of agricultural land for taxation purposes, I am unable to join him for the following reason.

[¶ 24.] The entire objective of SDCL ch. 10-6, indeed, the function of all SDCL Title 10, is to define and classify land as either agricultural or non-agricultural for taxation purposes. Since the sole function of Title 10 is to classify land for tax purposes, we must set aside our general perception of what constitutes “agricultural land;” it does not matter how we would ordinarily or initially classify it outside a taxation context. The very nature of SDCL Title 10 requires that, regardless of how it would be characterized in a non-tax setting, all land is either classified agricultural or non-agricultural and then taxed accordingly.

[¶ 25.] Our Constitution and case law make it clear that for tax purposes, the Legislature is free to make as many classifications of non-agricultural land as it deems necessary. However, it is limited to only one class of agricultural land. See S.D. Const. Art. VIII, § 15; Gould v. Pennington County Bd. of Equalization, 1997 SD 129 ¶ 8, 570 N.W.2d 846, 848; Great N. Ry. v. Whitfield, 65 S.D. 173, 272 N.W. 787 (1937). Beyond that limitation, the Legislature can define its sole class of “agricultural land” any way it wants for taxation purposes, so long as it is not unreasonable, arbitrary or capricious. See State v. Black Hills Transp. Co., 71 S.D. 28, 32-33, 20 N.W.2d 683, 685 (1945) (stating that the power to classify for purposes of taxation is of wide range and flexibility and will not be interfered with unless it is clearly arbitrary or unreasonable).

[¶ 26.] The Legislature’s definition of “agricultural land” at SDCL 10-6-31.3 seems to meet that standard. In addition to using three ordinary, common methods to define agricultural land (income production, principal use, and size), the statute also refers to SDCL 10-6-33.14, which expressly excludes from the definition of agricultural land any land sold for more than 150% of its agricultural income value.. In doing so, the Legislature has not created a second class of agricultural land, as the Thares argue. Rather, it has narrowed the agricultural class by removing from it certain parcels of land that it deems are no longer agricultural.

[¶ 27.] Based on the foregoing analysis, I am persuaded that SDCL 10-6-33.14 could not have unconstitutionally created two classes of agricultural land for taxation purposes. Even though the statute may take land that would ordinarily be described as “agricultural land” (using the common vernacular) and classify it as non-agricultural land for tax purposes, I am persuaded that such action is permitted under the provisions of our Constitution. In our constitutional analysis of SDCL 10-6-33.14, the common, ordinary, everyday definition of “agricultural land” is irrelevant; what is at issue is whether the statute impermissibly creates two agricultural classes. In my view it does not.

[¶ 28.] KONENKAMP, Justice, joins this special writing.

SABERS, Justice

(dissenting).

[¶ 29.] The majority opinion states that the South Dakota Legislature acted within the ambits of our constitution because it “created an additional nonagricultural classification, not a second agricultural class.” I respectfully disagree.

[¶30.] Less than three years ago a unanimous South Dakota Supreme Court held in Gould v. Pennington Cty. Bd. of Equal, 1997 SD 129, ¶ 18, 570 N.W.2d 846, 850:

Some statutes define methods of valuing agricultural land; some statutes define methods of assessing land; and some statutes define methods of measuring market value. SDCL 10-6-58 does none of these. It creates a new classification. It takes land that is clearly agricultural land and treats it as agricultural land held for resale or agricultural land for which the owner may have paid too much. This Court has rejected the notion that the law requires or permits an assessor to consider whether the land is economically self-sufficient. We are reluctant to declare acts of the legislature unconstitutional. SDCL 10-6-58, however, is unconstitutional, because it attempts to create more than one class of agricultural land in violation of art. VIII, § 15 of the South Dakota Constitution.

How quickly things change. SDCL 10-6-33.14 impermissibly creates two classes of agricultural land: agricultural land that is taxed as agricultural land and agricultural land that is taxed as nonagricultural land. The statute does not define methods of valuation, assessment or measurement of market value. Instead, it creates a new classification of agricultural land for taxation purposes only and is, therefore, prohibited by our constitution.

[1131.] SDCL 10-6-33.14 refers to “agricultural land, as defined in § 10-6-31.3 [.] ” (emphasis added). Under SDCL 10-6-31.3, land must meet two of the three provided criteria to be classified as agricultural land for tax purposes:

(1) At least thirty-three and one-third percent of the total family gross income of the owner is derived from the pursuit of agriculture ...;
(2) Its principal use is devoted to the raising and harvesting of crops or timber or fruit trees, the rearing, feeding, and management of farm livestock, poultry, fish, or nursery stock ...;
(3) It consists of not less than twenty acres of unplatted land or is a part of a contiguous ownership of not less than eighty acres of unplatted land.

Clearly, the legislature made great efforts to “make a meaningful distinction between agricultural and non-agricultural land.” Gould, 1997 SD 129, ¶ 8, 570 N.W.2d at 848. See also SDCL 10-6-31 (distinguishing between agricultural and nonagricul-tural land for taxation purposes). Land is to be classified as agricultural or nonagri-cultural after considering the satisfaction of statutory characteristics (gross income derived from the land, principal use, and size), not solely on the purchase price. To do so violates our holding in Nielsen v. Erickson, 272 N.W.2d 82, 86 (S.D.1978):

When classifying [land], there is nothing in the law that requires or permits an assessor to consider whether the land is economically self-sufficient; whether the owner has another occupation; whether the owner’s primary source of income is connected to the land; whether the amount or value of the machinery is related to the size of the tract; whether the value of the house reflects the value of the land; and whether the size of the acreage creates a viable agricultural unit. The legislature has not identified these factors as [ ] determinative of whether land is used exclusively for ag ricultural purposes, and only it can do so.

(emphasis added). In other words, when classifying land as agricultural or nonagri-cultural, the county and legislature are limited to applying the criteria set forth in SDCL 10-6-31 and 10-6-31.3. The only way a parcel of land fails to be classified as agricultural is if it no longer meets that criteria.

[¶ 32.] Contrary to clear constitutional and statutory directives, SDCL 10T6-33.14 provides that “agricultural land ... which sells for more than [150] percent of its agricultural income value is hereby classified ... as a nonagricultural acreage.” By its plain language, this statute divides agricultural land, as defined in SDCL 10-6-31.3, into two separate classes based on the purchase price: (1) agricultural land that was purchased for more than 150% of the agricultural income value and (2) agricultural land that was purchased for less than 150% of the agricultural income value. Thus, despite meeting the agricultural land definition in SDCL 10-6-31.3 this land is considered nonagricultural land if it was purchased for more than 150 percent of its agricultural income value, under SDCL 10-6-33.14. This arbitrary method of classification is unconstitutional because, as indicated, it creates two classes of agricultural land: agricultural land taxed as agricultural land and agricultural land taxed as nonagricultural land. There is simply no constitutional basis for this segregation of agricultural land.

[¶ 33.] Our recent holding in Gould, 1997 SD 129, 570 N.W.2d 846, is controlling here. Gould held that SDCL 10-6-58, the predecessor statute to SDCL 10-6-33.14, violated article VIII, § 15 of the South Dakota Constitution. That statute provided:

Any agricultural land, as defined in § 10-6-31.3, which sells for more than one hundred fifty percent of its agricultural income value is hereby classified for purposes of ad valorem taxation. The agricultural income value shall be determined pursuant to § 10-6-62.

In an apparent response to our unanimous decision in Gould, the legislature repealed that statute and enacted this one, SDCL 10-6-33.14. The only difference between the two statutes is the addition of the phrase “is hereby classified for purposes of ad valorem taxation as a nonagricultural acreage.” SDCL 10-6-38.14 (emphasis added). This additional language does not cure the continued constitutional violation. Furthermore, constitutional compliance is not restored by the additional language in SDCL 10-6-31.3, “for tax purposes, land is not agricultural land if the land is classified pursuant to § 10-6-33.14 as a nonag-ricultural acreage.” Our constitution can not be circumvented by effortlessly adding similar and meaningless verbiage into two statutes for the appearance of consistency. Therefore, our analysis in Gould is applicable:

With the passage of [SDCL 10-6-33.14], any meaningful definition of agricultural property is blurred, to say the least. The statute attempts to treat land that is clearly agricultural land (as defined by [10-6-31.3] or by any other logical definition) and value it by multiplying the price for which it sold times the level of assessment of other agricultural land in the county. The adopted criteria bears no relationship to any agricultural factors (types of land, productivity, etc.) but is based almost entirely on its sales price. Valuing the agricultural land, as in the present case, based upon its sales price is to set it apart from agricultural property and treat it as ‘nonagricultural,’ or other property.

1997 SD 129, ¶ 17, 570 N.W.2d at 849-50. In other words, not only is the legislature constitutionally prohibited from creating more than one class of agricultural land, it is also constitutionally prohibited from using the purchase price as the sole distinguishing factor between agricultural properties because the purchase price “bears no relationship to any agricultural factors.” This is precisely what the legislature did here.

[¶ 34.] The County claims the legislature merely re-classified this agricultural land as “nonagricultural acreage” instead of creating a second class of agricultural land. However, SDCL 10-6-33.14 amounts to nothing more than a mere guise of constitutional compliance; it does not render the disparate treatment of agricultural property constitutional. The legislature can not do by statute what the constitution prohibits. As indicated, our constitution can not be circumvented that easily. In order to treat agricultural land as separate classes, the legislature needs to seek a constitutional amendment instead of attempting to circumvent the constitution. The County has proposed such an amendment, which may appear on the November 2000 general election ballot.

[¶ 35.] While noting SDCL 10-11-16, the majority opinion attempts to justify the legislature’s creation of two separate classes of agricultural land by pointing out a purported “appeal route” as a “method for taxpayers to return their land to agricultural taxation status.” However, SDCL 10-6-33.17 attempts to provide relief to Thares or to - any taxpayers similarly situated, but it does not cure the constitutional defect. It is too little, too late.

[¶ 36.] SDCL 10-6-33.17 provides that “[a]ny land which is classified [as nonagri-cultural land per SDCL 10-6-33.14] shall remain so classified for a minimum of five years.” In effect, this statute provides no immediate relief and no means of appealing the Board’s decision for five years. In conjunction with SDCL 10-6-33.14, this statute allows the County to create a separate class of agricultural land, based solely on the purchase price, and maintain that status for a minimum of five years. Thereafter, if the landowner meets the criteria in 10-6-31.3, the land may be reclassified as agricultural. The bottom line is that the taxpayer is being punished for a period of five years, without an immediate remedy, for purchasing agricultural land for more than 150 percent of its agricultural income value despite satisfying the statutory definition of agricultural land in SDCL 10-6-31.3. As indicated, too little, too late.

[¶ 37.] The goal or legislative end (parity among taxpayers) is to be commended but the means selected by the legislature is simply unconstitutional. Unconstitutional means can not justify the end, no matter how desirable. Any remedy to the problem must be by constitutional amendment, not legislation. Just as we determined SDCL 10-6-58 to be unconstitutional in Gould, SDCL 10-6-33.14 “flies in the face of the constitutional amendment,” 1997 SD 129, ¶ 16, 570 N.W.2d at 849, and we should reverse and remand.

AMUNDSON, Justice

(concurring with the result of the dissent).

[¶ 38.] Under SDCL 10-6-33,
[a]ll property shall be assessed at its true and full value in money. The true and full value is the taxable value of such property upon which the levy shall be made and applied and the taxes computed. In determining the true and full value of property the director of equalization may not adopt a lower or different standard of value because it is to serve as a basis of taxation. The director may not adopt as a criterion of value the price for which the property would sell at a forced sale, or in the aggregate with all the property in the third class municipality or district. The director shall value each article or description by itself and at an amount or price as he believes the property to be fairly worth in money. The true and full value shall he determined by appropriate consideration of the cost approach, the market approach and the income approach to appraisal. The director of equalization shall consider and document all elements of such approaches that are applicable prior to a determination of true and full value. (Emphasis added.)

[¶ 39.] In determining the full and true value of property for assessment purposes, “it is the duty of the assessor to use all of those techniques and facts which accurately reflect ‘full and true’ value and to reject those which do not.’ ” See Yadco, Inc. v. Yankton County, 89 S.D. 651, 655, 237 N.W.2d 665, 667 (1975) (quotations omitted). “Factors which ordinarily are to be considered include: ‘replacement cost less proper deductions ... income from the property,’ ‘evidence of actual sales of other lands,’ when such sales are made by willing buyers to willing sellers, and previous sales of the particular property in question.” See id. (quotations omitted). Should the actual price for which a property has sold for be considered as a factor in determining valuation? I submit it should. While we have previously held that “ ‘[a] single sale of property ... does not ordinarily determine true and full value of a property as there may be economic conditions of a temporary nature and other factors which prevent the same from being a true measure of value,’ ” we have never stated that the actual sale price should not be one of the factors considered in determining the ultimate valuation amount. See Richter Enterprises, Inc. v. Sully County, 1997 SD 61, ¶ 13, 563 N.W.2d 841, 845 (quotations omitted). In fact, we have stated that the determination of true and full value “permits evidence of all relevant factors and does not authorize assessing authorities to fix an assessment within a specific formula.” See Sheraton-Midcon- tinent Corp. v. County of Pennington, 77 S.D. 554, 95 N.W.2d 892, 896 (S.D.1959).

[¶ 40.] It is a simple principle that when property is recently purchased through an arm’s length transaction with no unique circumstances or surrounding market conditions affecting the sale, the sale price should not be disregarded in considering what that property is worth. See, e.g., Willow, Inc. v. Yankton County, 89 S.D. 643, 648, 237 N.W.2d 660, 663 (1975) (comparing the sale price and the “willing buyer-willing seller test” to determine the true and full value of the property). In view of the fact that a sale between a willing buyer and willing seller is and should be considered in the assessment process, there is no need to create a special classification, such as “nonagricultural acreage.” Therefore, I join in the result of the dissent of Justice Sabers.

      . The triggering mechanism of SDCL 10-6-33.14 is a sale of the realty. Thus, owners of agricultural realty who purchased it prior to July 1, 1998 when the statute went into effect, are not affected by it. Their land will continue to be taxed as agricultural as long as it is not sold for a price in excess of 150 percent of its agricultural income value. Likewise, owners of agricultural realty who purchased it after July 1, 1998 will not be affected as long as the purchase price was for less than 150 percent of the agricultural income value.

      . The legislature also repealed the statutory scheme of SDCL 10-6-58 through 10-6-62, after this Court declared it unconstitutional in Gould.

      . SDCL 10-6-31.2 provides: "Leased school and endowment lands as provided in chapter 5-11 are hereby separately classified for the purpose of taxation.”

      . SDCL 10-6-35.19 provides: "All commercial, industrial and nonresidential agricultural real property which increases more than ten thousand dollars in true and full value as a result of reconstruction or renovation of structures is specially classified for purposes of taxation.”

      . SDCL 10-6-31 provides in part:
      Agricultural property includes all property used exclusively for agricultural purposes which is not handled for resale by wholesale or retail dealers. It includes all land used exclusively for agricultural purposes, both tilled and untilled, the improvements on such land, other than buildings and structures, and the livestock and machinery located and used on such agricultural land.
      Non-agricultural property includes normally occupied dwellings on agricultural land and automobile garages or portions of buildings used for that purpose by the occupants of such normally occupied dwellings, and all other property not classified as agricultural property.

      . SDCL 10-6-31.3 provides:
      For tax purposes, land is agricultural land if it meets two of the following three criteria:
      (1)At least thirty-three and one-third percent of the total family gross income of the owner is derived from the pursuit of agriculture as defined in subdivision (2) of this section or it is a state-owned public shooting area or a state-owned game production area as identified in § 41-4-8 and it is owned and managed by the Department of Game, Fish and Parks;
      (2) Its principal use is devoted to the raising and harvesting of crops or timber or fruit trees, the rearing, feeding and management of farm livestock, poultry, fish or nursery stock, the production of bees and apiary products, or horticulture, all for intended profit pursuant to subdivision (1) of this section. Agricultural real estate also includes woodland, wasteland and pasture land, but only if the land is held and operated in conjunction with agricultural real estate as defined and it is under the same ownership;
      (3) It consists of not less than twenty acres of unplatted land or is a part of a contiguous ownership of not less than eighty acres of unplatted land. The same acreage specifications apply to platted land, excluding land platted as a subdivision, which is in an unincorporated area. However, the board of county commissioners may increase the minimum acre requirement up to one hundred sixty acres.

        However, for tax purposes, land is not agricultural land if the land is classified pursuant to § 10-6-33.14 as a nonagricultural acreage. (emphasis added).
      The dissent while declaring the three criteria to be a legislative decision to "make a meaningful distinction between agricultural and non-agricultural land,” fails to acknowledge the last sentence of the current statute which was a post-Gould amendment to incorporate the classification set forth in SDCL 10-6-33.14. We do not have the authority to pick and choose those portions of a statute that are in accord with our views and set aside the rest. We have consistently adhered to the proposition that a statute is to be construed as a whole and in harmony with other statutes. Taylor Properties v. Union County, 1998 SD 90, ¶¶ 14-15, 583 N.W.2d 638, 641. The dissent fails to adequately support its thesis that the criteria in SDCL 10-6-31.3 apparently could not be amended in 1998 and that "the county and legislature are limited to applying the criteria set forth in SDCL 10-6-31 and 10-6-31.3” prior thereto.

      . The Florida statute in question in Straughn provided:
      Sale of land for a purchase price which is 3 or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted.
      Fla.Stat.Ann. § 193.461(4)(c).

      . While agriculture and the family farm have recognized social and moral benefits {see SDCL 47-9A-1) for it to survive as a way of life, it must fundamentally also be considered a business. No explanation is offered how $450 per acre agricultural land can sustain a $1600 purchase price if the land remains agricultural. While we realize all agricultural operations are not profitable, and whether they are profitable or not is not a determinative factor to an agricultural classification, profit motive has been recognized as a factor which can be considered when determining whether the land is entitled to an agricultural classification. Love PGI Partners, LP v. Schultz, 706 So.2d 887, 892 (Fla.Dist.Ct.App.1998). Specifically, Thares do not show how they can meet their investment cost and realize a reasonable profit from their land when they paid $1600 per acre for it. Neither do Thares argue they paid too much for the property or that it has decreased in value since its purchase.

      . Nielsen v. Erickson, 272 N.W.2d 82 (S.D. 1978) made the observation that as of the time it was decided in 1978, "there is nothing in the law that requires or permits an assessor to consider whether the land is economically self-sufficient[.]” Id. at 86. As previously noted SDCL 10-6-33.14 was not passed until twenty years later in 1998.

      . It was recognition of economic reality that led to the present constitutional
      classification system in the first place. In Great Northern we stated:
      Since 1929 the severity of the adverse conditions affecting agriculture in this state, of which we are now fully aware, makes complete our realization that this court failed to see in 1929 that which was apparently then plainly visible to the Legislature and the people. Commencing some time prior to 1923 and continuing until this very time, the agricultural industry in this state has been in a serious condition and fighting desperately for its existence. The prices for agricultural products have been far below normal.... This court knows that as a part of the general adverse conditions affecting agriculture in this state, prior to the enactment of the 1931 law, the taxes levied for school purposes meant practical confiscation of agricultural lands in many school districts....
      272 N.W. at 792.

      . This Court agrees with the circuit court’s reasoning:
      Because comparable sales of agricultural property can be considered in determining the value of agricultural property, if property which sold for more than one hundred fifty percent of its agricultural income value is left in the classification of agricultural properly, then the value of all agricultural property increases accordingly. By reclassifying this property as nonagrieultural, this accelerator effect on other agricultural property is minimized.

      .Thares contend that the only solution for the legislature to create a separate classification of land such as the land in question is to amend the state constitution. The legislature proposed an amendment in 1998 to Article VIII, § 15, however, it failed at the November, 1998 general election. The legislature again proposed the same amendment in 1999, which would change the third sentence of Article VIII, § 15, to read as follows: "The Legislature is empowered to classify properties within school districts into separate classes for purposes of school taxation.” This 1999 proposed constitutional amendment will be on the ballot for the November 2000 general election. However, even without a constitutional amendment, SDCL 10-6-33.14 et seq. remains constitutional as it corrects the deficiency found in the 1993 statutes declared unconstitutional in Gould by creating a separate distinct class of non-agricultural property, instead of creating a subclass of agricultural property.

      . Whether SDCL 10-6-33.14 creates an unreasonable, arbitrary and capricious definition of agricultural land by relying entirely on sales price may have been a better argument for Thares. That argument, however, is not presented here.

      . This statute provides:
      Any agricultural land, as defined in § 10-6-31.3, which sells for more than one hundred fifty percent of its agricultural income value is hereby classified for purposes of ad valorem taxation as a nonagricultural acreage. The agricultural income value shall be determined pursuant to § 10-6-33.15. (emphasis added).

      . This determination is clearly supported by the plain, statutory language used in SDCL 10-6-33.14: "Any agricultural land, as defined in § 10-6-33.14, which sells for more than one hundred fifty percent of its agricultural income value is hereby classified ... as a nonagricultural acreage." (emphasis added). If the legislature intended to use criteria other than those set forth in SDCL 10-6-31.3, it would not have chose to restrict the definition of agricultural land as “defined in § 10-6-31.3."

      . The majority opinion relies on Florida Supreme Court case, Straughn v. K & K Land Mgmt., Inc., 326 So.2d 421 (Fla.1976). This case, however, is distinguished from the present case because the Florida Constitution permits multiple classifications of agricultural land. See Fla.Const. art. VII, § 4(a) (providing "[a]gricultural land ... may be classified by general law and assessed solely on the basis of character or use.”). The South Dakota Constitution indisputably prohibits more than one class of agricultural land.
      Additionally, in Florida, "only lands which are used primarily for bona fide agricultural purposes shall be classified as agricultural.” Fla.Stat.Ann. § 193.461(3)(b). The Florida statutes set forth seven factors to consider in determining whether land is used for "bona fide agricultural purposes,” one of which is "the purchase price paid.” Id. Our statutes do not permit such an individualized analysis.
      Finally, under the Florida statutes, there is a presumption that agricultural land is not being used primarily for bona fide agricultural purposes when it is purchased for three or more times the agricultural assessment. Fla. Stat.Ann. § 193.461 (4)(c). However, the presumption is rebuttable and the burden shifts to the purchaser to present evidence that "the land is to be continued in bona fide agriculture.” Id. In other words, if the purchaser can prove that he intends to continue using the land for "bona fide agricultural purposes,” the agricultural classification is reinstated regardless of the purchase price. SDCL 10-6-33.17 does not allow the purchaser to challenge a nonagricultural classification until five years have passed.

      . Recently, in Butte County v. Vallery, 1999 SD 142, ¶ 16, 602 N.W.2d 284, 289, we reiterated that " 'farm management decisions cannot change the earth’s value for taxation purposes.’ ” (quoting In re Butte County, 385 N.W.2d 108, 112 (S.D.1986)). Accordingly, I fail to see how the purchase price of agricultural land alters "the earth’s value for taxation purposes.’’

      . The legislature may consider the purchase ' price of agricultural land when assessing or valuing land value, but not when classifying land. See Nielsen, 272 N.W.2d at 86. As we stated in Gould : "It is permissible to classify all property for assessment and valuation, but [SDCL 10-6-33.14] is an entirely new concept that attempts to value, assess, and tax agricultural land without regard to its status as agricultural land." 1997 SD 129, ¶ 16, 570 N.W.2d at 849. See also In re Butte County, 385 N.W.2d at 113 (holding that irrigated agricultural land cannot be classified separately from nonirrigated agricultural land).