text:
    2007 ND 30
    STATE of North Dakota, Plaintiff and Appellee, v. Shawn David AUSTIN, Defendant and Appellant. Shawn David Austin, Petitioner and Appellant, v. State of North Dakota, Respondent and Appellee.
    Nos. 20060022, 20060194.
    Supreme Court of North Dakota.
    Feb. 28, 2007.
    Rehearing Denied March 22, 2007.

      Benjamin C. Pulkrabek, Mandan, N.D., for appellant.
    Ladd R. Erickson, State’s Attorney, Washburn, N.D., for appellee.
   SANDSTROM, Justice.

[¶ 1] Shawn Austin appeals from a judgment entered after a jury found him guilty of gross sexual imposition and from an order denying his petition for post-conviction relief. We affirm.

I

[¶ 2] In January 2005, Austin was charged with gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) for allegedly engaging in sexual contact with his former girlfriend’s niece, D.L., who was under fifteen years of age.

[¶ 3] Before trial, Austin moved for leave to present expert testimony from Dr. Edward Kehrwald, a psychologist who conducted a psychological examination of Austin. At a hearing to decide the admissibility of the proffered testimony, Dr. Kehrwald testified about the results of Austin’s psychological examination. The psychological examination included administration of the Abel Assessment of Sexual Interest, which attempts to ascertain the subject’s sexual interests. Dr. Kehrwald’s proffered testimony explained that the results from the Abel Assessment showed Austin had no interest in younger females, and provided Dr. Kehrwald’s opinion about how child custody disputes may influence false sexual abuse allegations. The district court denied Austin’s motion, finding the proffered expert testimony would not assist the jury in understanding any evidence or in deciding whether or not Austin committed the offense.

[¶ 4] At trial, D.L. testified Austin sexually abused her five times when she was ten and eleven years old. D.L. testified the incidents occurred in various locations at Austin’s house, including on the roof, in a pickup truck parked in the yard, on the couch, and in a room containing multiple computers. The State introduced a videotape of D.L. talking about the allegations during a forensic interview. McLean County Sheriffs Deputy Sylvin Brunsell testified about law enforcement’s investigation, including an interview with Austin in which he admitted touching D.L. and made other incriminating statements. Austin also testified at trial and denied D.L.’s allegations, but said it was possible he may have accidentally touched D.L. while they were wrestling. Austin claimed D.L. may have conspired with her mother or with Austin’s girlfriend, D.L.’s aunt, to fabricate the allegations to assist Austin’s girlfriend in possible child custody proceedings against Austin. Austin also testified that many of the alleged instances of abuse could not have occurred, specifically the incidents in the pickup truck because two windshields and various other automobile parts were in the pickup truck’s cab, which would have made it impossible for two people to get inside the vehicle. The jury found Austin guilty, and he was sentenced to five years’ imprisonment with three years suspended. Austin appealed the criminal judgment, and the appeal was stayed pending a post-conviction proceeding.

[¶ 5] In April 2006, Austin applied for post-conviction relief, arguing his trial counsel was ineffective and he did not receive a fair trial because the district court judge made improper or coercive remarks to the jury during deliberations. After a post-conviction hearing, the district court denied Austin’s application. Austin appealed the district court’s order denying his application for post-conviction relief, and his appeals were consolidated.

[¶ 6] The district court had jurisdiction of the criminal proceeding under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the criminal judgment was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

[¶ 7] The district court had jurisdiction of the post-conviction proceeding under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 29-32.1-03. The appeal from the order denying Austin’s post-conviction relief was timely under N.D.R.App.P. 4(d), and this Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 8] Austin argues the district court abused its discretion in excluding Dr. Kehrwald’s proffered testimony. He claims Dr. Kehrwald’s proffered testimony met the admissibility requirements for expert testimony and would have assisted the jury in deciding the probability that Austin would assault a young female and the probability that someone would fabricate a story about sexual abuse to gain an advantage in a custody dispute.

[¶ 9] Introduction of expert testimony is governed by N.D.R.Ev. 702, which allows expert testimony to be used when it assists the trier of fact:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

“Although expert testimony is admissible whenever specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, whether expert testimony is useful falls within the [district] court’s sound discretion.” Praus v. Mack, 2001 ND 80, ¶ 34, 626 N.W.2d 239 (citation omitted). Expert testimony is not admissible if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Id.

[¶ 10] The court’s decision whether to allow expert testimony will not be overturned on appeal unless the court has abused its discretion. Id. A district court abuses its discretion when “ ‘it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.’ ” State v. Schmidkunz, 2006 ND 192, ¶ 15, 721 N.W.2d 387 (quoting Nesvig v. Nesvig, 2006 ND 66, ¶ 12, 712 N.W.2d 299).

[¶ 11] Austin moved for leave to present expert testimony from Dr. Kehrwald, who had conducted a psychological evaluation of Austin. The evaluation included the Abel Assessment of Sexual Interest, which is used to ascertain an individual’s sexual interests. Dr. Kehrwald testified that Austin’s results on the Abel Assessment showed an interest in adult females and adolescent females, with no interest in children, which are typical results for an adult male. Austin argued Dr. Kehrwald’s testimony was admissible to show Austin does not have a sexual interest in children. Austin claimed the information about his sexual interests would help the jury decide the probability that Austin would assault a young female. Austin argued the evidence would be presented only as character evidence and would not be used to infer Austin’s guilt or innocence.

[¶ 12] The district court excluded Dr. Kehrwald’s proffered testimony, finding:

1. The Defendant is not accused of being a pedophile, but rather having committed or engaged in a sexual act with a minor child.
2. The psychological tests employed by Dr. Kehrwald in his evaluation of the defendant are not intended to be employed for the purpose of determining whether or not the Defendant committed the alleged act.
3. The expert opinion and evaluation as prepared by Dr. Kehrwald is of no probative value to the jury in its determination of whether or not the Defendant committed the alleged crime.
4. The jury is able to make a factual determination of the Defendant’s guilt or innocence in the above-entitled prosecution absent expert testimony of the Defendant’s character trait of sexual interest in children.
5. The Defendant’s character traits are not an element of the alleged offense.

The court also found Dr. Kehrwald acknowledged the tests “do not address nor are they to be employed to determine a patient’s predisposition to engage in particular conduct, and therefore should not be considered in a determination of whether or not the accused committed the alleged act.” During the pre-trial hearing, the court expressed its concern that the jury would use in the information to infer Austin’s guilt or innocence, and would not limit its use to character evidence. The court concluded: “While Dr. Kehrwald’s testimony may be extremely valuable to the Court should the Defendant be convicted of the alleged gross sexual imposition, it does not assist the trier of fact, the jury, to understand any evidence nor to determine whether or not the Defendant committed the alleged offense.”

[¶ 13] We conclude the district court’s explanation for excluding Dr. Kehrwald’s testimony was the product of a rational mental process and the court’s decision was not arbitrary, unreasonable, or unconscionable.

[¶ 14] Austin also offered expert testimony from Dr. Kehrwald about whether a person involved in a custody proceeding would make up a story about sexual abuse to gain an advantage. Austin claimed D.L. was fabricating the allegations to help her aunt, who was Austin’s girlfriend at the time of the allegations and has two children with him, in a possible future child custody dispute. Dr. Kehrwald testified he is more cautious when he conducts assessments if he is aware that a child custody proceeding may be motivating the allegations.

[¶ 15] The district court excluded Dr. Kehrwald’s custody testimony, finding expert testimony was not necessary to tell a jury that a custody battle may be a motivational factor in sexual abuse allegations because the proffered testimony was generic and did not require any expertise. The court found there was no foundation for Dr. Kehrwald’s opinion about a possible child custody proceeding motivating the allegations in this case, because Dr. Kehrwald only spoke to Austin and did not know anything more about custody and its impact in this case than he would in any other case.

[¶ 16] We conclude the court did not abuse its discretion in excluding Dr. Kehr-wald’s custody testimony. The court found the testimony was generic and did not require any specialized knowledge or expertise. Austin presented similar testimony at trial when he testified that he believed D.L. fabricated the allegations to help her aunt with a possible child custody proceeding against Austin. The court’s decision was the product of a rational mental process leading to a reasoned decision, and was not arbitrary, unreasonable, or unconscionable.

[¶ 17] We conclude the district court did not abuse its discretion in excluding Dr. Kehrwald’s proffered testimony.

Ill

[¶ 18] During jury deliberations, the jury requested transcripts of Austin’s and Deputy Brunsell’s testimony. The district court allowed the witnesses’ entire testimony to be read to the jury, and said, “Ladies and gentlemen of the jury, you would not normally receive this testimony. By virtue of the nature of the case, I granted this latitude and that’s all the transcripts and all the reading you’ll receive.” Austin claims this statement to the jury was an incorrect statement of the law, and constituted an obvious error that had a significant impact on the verdict.

[¶ 19] The district court must allow a jury to rehear any testimony requested. N.D.C.C. § 29-22-05; State v. Jahner, 2003 ND 36, ¶ 6, 657 N.W.2d 266. While the district court’s statement to the jury was incorrect, Austin failed to object to the statement. Defendants who seek “ ‘to take advantage of irregularities occurring during the course of a trial, either on the part of the court, the jury, the adverse parties, or anyone acting for or on their behalf, ... must do so at the time the irregularities occur, in order that the court may take appropriate action, if possible, to remedy any prejudice.’ ” Jahner, at ¶ 9, 657 N.W.2d 266 (quoting Leake v. Hagert, 175 N.W.2d 675, 690 (N.D.1970)). Because Austin did not object to the court’s statements, our review is for obvious error under N.D.R.Crim.P. 52(b). See State v. Jacob, 2006 ND 246, ¶ 14, 724 N.W.2d 118.

In determining whether there has been obvious error, we examine the entire record and the probable effect of the alleged error in light of all the evidence, and the burden is upon the defendant to show the alleged error was prejudicial. An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.

Id. (quoting State v. Weaver, 2002 ND 4, ¶ 17, 638 N.W.2d 30). The Court will notice obvious error only in exceptional circumstances when the defendant has suffered a serious injustice. Schmidkunz, 2006 ND 192, ¶ 6, 721 N.W.2d 387.

[¶ 20] In this case, the jury did not ask to rehear any other testimony, and it is not clear that the jury was denied access to re-examine any evidence or testimony. Austin has not demonstrated that he suffered a serious injustice or prejudice, and therefore we conclude the court’s incorrect statement to the jury does not constitute obvious error.

IV

[¶ 21] Austin argues the court made improper or coercive remarks to the jury encouraging them to find him guilty. After several hours of deliberations, the court asked the jury members if they would be able to reach a decision or if they were at an impasse:

Ladies and gentlemen of the jury, I cause you to be returned to inquire as to whether or not you have reached an impasse in the matter. Your deliberations commenced at 10:10 this morning. There is no physical evidence to examine; accordingly, I don’t want to waste your time or anyone else’s if you are at an impasse.... Are you at an impasse?

The jury foreman informed the court they were still discussing the matter, and the court responded, “I understand that. Let me inquire of the jury. If you wish to continue your deliberations, raise your right hand?” The jurors raised their hands and were allowed to continue deliberations.

[¶ 22] Because Austin did not object to the court’s remarks, our review of this issue is also for obvious error. “The test generally applied to determine if remarks by the court to the jury are improper or coercive ... is to examine them in light of the totality of the circumstances to see if they had a coercive effect on the jury.” State v. Hartsoch, 329 N.W.2d 367, 371 (N.D.1983). Although the court’s remarks may have been improper, we conclude the remarks did not harm Austin. The court’s comments are in Austin’s favor, and the jury was allowed to continue deliberating. We conclude the court’s comments did not have a coercive effect on the jury and were not obvious error.

V

[¶ 23] Austin claims the district court erred in denying his motion for a judgment of acquittal, because there was insufficient credible evidence to sustain his conviction.

[¶ 24] Austin timely moved for an acquittal under N.D.R.Crim.P. 29, preserving the issue of sufficiency of the evidence for appellate review. Jacob, 2006 ND 246, ¶ 6, 724 N.W.2d 118. On appeal, the defendant must show that the evidence, viewed in the light most favorable to the verdict, permits no rational factfin-der to find the defendant guilty beyond a reasonable doubt. Id.

[¶ 25] The jury found Austin guilty of gross sexual imposition under N.D.C.C. § 12.1 — 20—03(2)(a), which states a person who engages in sexual contact with someone less than fifteen years old is guilty of an offense. Sexual contact is “any touching, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person ... for the purpose of arousing or satisfying sexual or aggressive desires.” N.D.C.C. § 12.1-20-02(4).

[¶ 26] D.L. testified Austin touched her vagina and breasts on several occasions, and he digitally penetrated her vagina during the last incident. A videotape of D.L.’s forensic interview was shown to the jury. Deputy Brunsell also testified that Austin admitted touching D.L. and made other incriminating statements during an interview. The evidence, when viewed in a light most favorable to the verdict, supports the jury’s verdict, and therefore we conclude the court did not err in denying Austin’s motion for acquittal.

VI

[¶ 27] Austin argues the district court erred in denying his application for post-conviction relief. He claims he was deprived of his Sixth Amendment right to effective assistance of counsel because his attorney made unprofessional errors that affected the outcome of the proceeding.

[¶ 28] Proceedings for post-conviction relief are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. The issue of ineffective assistance of counsel is a mixed question of law and fact that is fully reviewable on appeal. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809.

[¶ 29] A criminal defendant is guaranteed the right to effective assistance of counsel under the Sixth Amendment of the United States Constitution and N.D. Const, art. I, § 12. Wright v. State, 2005 ND 217, ¶ 10, 707 N.W.2d 242. Our standard for assessing a claim of ineffective assistance of counsel is well-established:

In accord with the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ... (1984), a defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” The defendant must first overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.
The prejudice element requires a defendant to “establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Not only does a criminal defendant have “the heavy, demanding burden of proving counsel’s assistance was ineffective,” a defendant claiming ineffective assistance of counsel “must specify how and where trial counsel was incompetent and the probable different result.” A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”

Flanagan, 2006 ND 76, ¶ 10, 712 N.W.2d 602 (quoting Heckelsmiller v. State, 2004 ND 191, ¶¶ 3-4, 687 N.W.2d 454 (citations omitted)).

[¶ 30] Austin claims his trial counsel made multiple unprofessional errors that affected the outcome of the proceeding. While Austin’s trial counsel did not testify at the post-conviction hearing, Austin presented testimony from Attorney Todd Schwarz. Austin contends his trial counsel was surprised by D.L.’s allegation that one incident occurred on the roof of the house, and he argues that if his trial counsel had been properly prepared for the trial, which in Attorney Schwarz’s opinion would have included deposing D.L. and hiring a private investigator to investigate the allegations, he would have known about the roof allegation and could have effectively cross-examined D.L. Austin alleges his trial counsel could have used the information from the roof allegation to effectively attack D.L.’s credibility by showing the incident could not possibly have occurred, which would have resulted in a different outcome in the proceeding. Attorney Schwarz testified he advised Austin’s trial counsel to depose D.L. and to hire a private investigator, but he also testified he had been unsuccessful in getting leave from the court to depose a victim in similar cases. Austin also contends his trial counsel failed to properly prepare for the trial because he did not investigate D.L.’s allegation that two incidents occurred in a pickup truck. At trial Austin testified it was not possible for any of the incidents to have occurred in the pickup truck because the cab of the truck was full of spare automobile parts, including two windshields, which made it impossible for two people to get inside the vehicle. Austin claims that if his attorney had investigated the pickup truck, including having pictures of the vehicle, he would have been able to effectively attack D.L.’s credibility. Austin argues his trial counsel erred by failing to object to hypothetical questions and by failing to investigate whether D.L. had been coached. Austin also contends his trial counsel erred by failing to object to the court’s remarks to the jury that they would not be read any more of the transcripts and inquiring whether the jury was at an impasse during deliberations.

[¶ 31] The district court found Austin’s trial counsel was prepared for trial as evidenced by the numerous pretrial motions and hearings. The court also found that many of the alleged errors could be attributed to trial tactics. The court concluded Austin could not satisfy the burden of proof for a claim of ineffective assistance of counsel and denied his application.

[¶ 32] We will not disturb the district court’s findings of fact in post-conviction proceedings unless they are clearly erroneous. Flanagan, 2006 ND 76, ¶ 9, 712 N.W.2d 602. The evidence supports the court’s findings that Austin’s counsel was adequately prepared for the trial and that the errors Austin claims his counsel committed are attributable to trial tactics. On appeal, we do not second-guess matters of trial tactics, such as the decision whether to attempt to depose a witness, hire a private investigator, or how to question a witness. See Rummer v. State, 2006 ND 216, ¶ 12, 722 N.W.2d 528. “Strategic choices by trial counsel ‘made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ ” Id. (quoting State v. Schlickenmayer, 364 N.W.2d 108, 112 (N.D.1985)).

[¶ 33] Moreover, Austin failed to establish that his trial counsel’s alleged deficient performance affected the outcome of the case. D.L. alleged Austin abused her on five occasions. The jury only had to find that one incident occurred. Austin failed to establish a reasonable probability that the outcome of the proceeding would have been different if Austin’s trial counsel had tried to depose D.L., hired a private investigator, and attacked D.L.’s credibility-

[¶ 34] After reviewing the record, we conclude Austin’s trial counsel’s representation did not fall below an objective standard of reasonableness, and even if Austin’s trial counsel was deficient, Austin has failed to establish that the outcome of his criminal trial would have been different.

VII

[¶ 35] We affirm the judgment and the order denying Austin’s application for post-conviction relief.

[¶ 36] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: ERICKSON, Circuit Judge. ZINTER, Justice

license: Public Domain

text:
    2007 SD 11
    Leah D. GLOVER, Plaintiff, v. Jerity E. KRAMBECK, Defendant and Appellant, v. Joshua Macer, Defendant and Appellee. Jerry A. Krambeck, Plaintiff, and Jerity E. Krambeck, Plaintiff and Appellant, v. Joshua Macer, Defendant and Appellee.
    Nos. 23921, 23986.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2006.
    Decided Jan. 17, 2007.

      Karen Paige Hunt and Thomas E. Brady of Brady Pluimer, Spearfish, South Dakota, Attorneys for appellant.
    Thomas G. Fritz and Catherine M. Sabers of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for appellee Joshua Macer.
   ERICKSON, Circuit Judge.

[¶ 1.] This decision consolidates two separate appeals from two different cases in adjoining counties. The cases were considered by different circuit court judges and arose from a single car accident. A Meade County case involving Jerity Kram-beck’s (Krambeck) insurance carrier was settled and dismissed with prejudice. When counsel for a Butte County case brought by Krambeck moved to set aside that dismissal, the motion was denied. The Butte County case was then dismissed on the grounds of res judicata. We affirm the denial of the motion to set aside the Meade County dismissal and reverse and remand the Butte County dismissal granted on the grounds of res judicata.

FACTS

[¶2.] On October 9, 2000, Krambeck was driving a car owned by her father on 1-90 with passengers Leah Glover (Glover) and Josh Macer (Macer). Macer grabbed the steering wheel from the backseat causing the vehicle to go into the right-hand ditch. Krambeck attempted to correct the vehicle but lost control and the car rolled over.

[¶ 3.] In September 2003 Glover sued both Krambeck and Macer in Meade County asserting their joint negligence caused her personal injuries. At the time the lawsuit was filed, Krambeck was in army basic training. She waived her right to stay the proceedings and the case advanced. Krambeck’s insurance carrier hired attorney Reed Rasmussen (Rasmussen) to represent her interests under the insurance policy. Rasmussen communicated with Krambeck’s mother concerning the case. Krambeck and Macer filed cross-claims against each other for contribution and indemnity.

[¶ 4.] That same fall attorney Thomas Brady (Brady) brought an action against Macer in Butte County on behalf of both Krambeck and her father for personal injury and damages to her father’s automobile. Krambeck herself had no contact with attorney Brady until May 2005.

[¶ 5.] Krambeck was discharged from the army in February 2004. She immediately began communicating with Rasmussen. In a deposition on June 1, 2004, involving the Meade County case, Kram-beck answered questions concerning her personal injuries although no claim for them had been made in the action. The Meade County case was settled and on June 24, 2005, an order was entered dismissing the action on its merits with prejudice.

[¶ 6.] Four days later attorney Brady learned of the dismissal of the Meade County action. Surprisingly this was the first time either Brady or Rasmussen was made aware of the other’s case.

[¶ 7.] One month later Macer moved to dismiss the Butte County case citing the dismissal of the Meade County case and arguing that the dismissal was res judica-ta. On June 28, 2005, Krambeck moved to set aside the dismissal of the Meade County case by seeking relief from the judgment under SDCL 15 — 6—60(b). This motion was denied. Thereafter, Macer’s motion to dismiss the Butte County case was granted. Krambeck appeals both decisions raising the following issues:

Whether the trial court in Meade County abused its discretion when it denied the motion for relief under SDCL 15-6-60(b).
Whether the trial court in Butte County erred in granting the defendant’s motion to dismiss based on res judicata.
ANALYSIS AND DECISION

ISSUE ONE

[¶ 8.] Did the trial court in the Meade County case abuse its discretion in denying Krambeck’s motion for relief under SDCL 15-6-60(b)?

[¶ 9.] “ ‘The decision to grant or deny a motion under SDCL 15-6-60(b) rests with the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion.’ ” Lowe v. Schwartz, 2006 SD 48, ¶ 8, 716 N.W.2d 777, 779 (quoting Walsh v. Larsen, 2005 SD 104, ¶ 6, 705 N.W.2d 638, 641). “An abuse of discretion consists of ‘a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Schwartz v. Palachuk, 1999 SD 100, ¶ 16, 597 N.W.2d 442, 446 (quoting Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994)). The test for finding an abuse of discretion is “ ‘whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached the conclusion.’ ” Hrachovec, supra at 311 (quoting Dacy v. Gors, 471 N.W.2d 576, 580 (S.D.1991)).

[¶ 10.] A motion under SDCL 15 — 6—60(b) can be granted only when exceptional circumstances exist. Interest of D.G., 2004 SD 54, ¶ 7, 679 N.W.2d 497, 500. “ ‘The purpose of Rule 60(b) is to preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscious that justice be done in light of all the facts.’ ” Reaser v. Reaser, 2004 SD 116, ¶ 16, 688 N.W.2d 429, 434 (quoting Divich v. Divich, 2002 SD 24, ¶ 8, 640 N.W.2d 758, 760).

[¶ 11.] Macer contends that Krambeck’s motion for relief was not made in a reasonable amount of time as required by the statute. Under the circumstances of this case, SDCL 15-6-60(b) allowed the motion to be made within one year after the order of dismissal was entered. The motion for relief was filed approximately five months after the dismissal was ordered. The trial court did not consider this argument in its decision and nothing in the record indicates that the delay was unreasonable. Macer also contends that the five-month delay was unreasonable because there was a lack of compelling factors justifying such a delay. However, compelling factors are not a requirement. In Rogers v. Rogers, 351 N.W.2d 129 (S.D.1984) this Court implicitly upheld a six month delay without any evidence of compelling factors (cited with approval in Clarke v. Clarke, 423 N.W.2d 818, 821 (S.D.1988)).

[¶ 12.] Krambeck argues that the trial court erred in denying her relief under SDCL 15 — 6—60(b)(1) citing mistake, inadvertence or excusable neglect. Her argument is that her presence in basic training at the beginning of the two lawsuits, her limited involvement with them during that time, her parents’ lead in prosecuting the lawsuits, and her young age and lack of experience with lawsuits all contributed to her mistake, inadvertence or excusable neglect in failing to inform either lawyer of the existence of two lawsuits and her lack of understanding of the full effect of settling the Meade County case.

[¶ 13.] Under these conditions it was reasonable for the trial court to find that no exceptional circumstances existed. The trial court noted that Krambeck knew of the existence of both lawsuits and the representation by two lawyers, that she was a competent adult and that she had the means to make one attorney aware of the other.

[¶ 14.] Krambeck’s service in the armed forces is indeed honorable, and it is understandable that while she was serving her communication with the civilian world was more difficult. However, she waived her right to be relieved from this hardship. Furthermore, she was discharged in February 2004 and the case was not settled until January 24, 2005. During this eleven month period she communicated with attorney Rasmussen about the Meade County case several times. Additionally, she was aware of attorney Brady’s representation in the Butte County case. Despite her knowledge, she gave no explanation for not communicating with Brady until May 2005 or for not making Rasmussen aware of the Butte County case or of Brady’s involvement.

[¶ 15.] The trial court’s denial of the motion to set aside the Meade County dismissal is affirmed.

ISSUE TWO

[¶ 16.] Did the trial court in the Butte County case err in granting Ma-cer’s motion to dismiss based on res judicata?

[¶ 17.] The applicability of the doctrine of res judicata is a question of law examined de novo. Wells v. Wells, 2005 SD 67, ¶ 11, 698 N.W.2d 504, 507. “ ‘The doctrine of res judicata serves as claim preclusion to prevent relitigation of an issue actually litigated or lohich could have been properly raised and determined in a prior action.’ ” Barnes v. Matzner, 2003 SD 42, ¶ 16, 661 N.W.2d 372, 377 (quoting Black Hills Jewelry Mfg. v. Felco Jewel Ind., 336 N.W.2d 153, 157 (S.D.1983)) (emphasis in the original).

[¶ 18.] “ ‘For purposes of res ju-dicata, a cause of action is comprised of the facts which give rise to, or establish, the right a party seeks to enforce.... [T]he test is a query into whether the wrong sought to be redressed is the same in both actions.’ ” Id. (ellipsis in original).

[¶ 19.] The Butte County trial court ruled that while Krambeck’s father could pursue his claim for property damage, Krambeek could have sought recovery for her damages by way of a cross-claim in the Meade County action pursuant to SDCL 15-6-13(g) and SDCL 15-6-18(a). The court then ruled that Krambeek was barred from raising the issue in a separate action. Krambeek argues that this holding makes all cross-claims compulsory contrary to the permissive language in SDCL 15-6-13(g) (cross-claim against co-party) stating:

A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant, (emphasis added).

[¶ 20.] Krambeek urges this Court to follow the position recently adopted by the Supreme Court of Missouri in Hemme v. Bharti, 183 S.W.3d 593 (Mo.2006). The Missouri Supreme Court, presented with facts almost identical to those in this case, held that denying a second cause of action was contrary to the Missouri Rules of Civil Procedure. Id. at 596-599. Those procedural rules are almost identical to those in South Dakota. In the Hemme case, as in our case, the defendants were represented by counsel provided by their insurer. The defendant was left to find alternative counsel to proceed on related claims which were outside the scope of the insurance contract. Id. at 600.

[¶ 21.] The Missouri Supreme Court ruled that “if the compulsory counterclaim rule were to be applied to the cross-claim in the original case, the Court would impose on counsel the obligation of representing its insured in her claim for injuries or of informing her to retain separate counsel to represent her in the counterclaim to the cross-claims.” Id. The Court further observed that “[t]his would add a layer of complexity and dysfunction in the original lawsuit that is not appropriate.” Id.

[¶ 22.] We agree with the Missouri Supreme Court. “A cross-claim, under this rule, is always permissive and never compulsory.” Id. at 596. Therefore, Kram-beck was not required to make a claim for her own injuries in the Meade County lawsuit commenced by Glover. Kram-beck’s subsequent lawsuit was not barred. The trial court judgment in the Butte County case is reversed, and the case is remanded.

[¶ 23.] GILBERTSON, Chief Justice and MEIERHENRY, Justice concur.

[¶ 24.] KONENKAMP and ZINTER, Justices, concur specially.

[¶ 25.] ERICKSON, Circuit Judge, for SABERS, Justice, disqualified.

ZINTER, Justice

(concurring specially).

[¶ 26.] The circuit court in Butte County dismissed Krambeck’s claim for personal injury because she failed to include it with the cross-claims for indemnity and contribution that Krambeck and Macer asserted against each other as co-defendants in the Meade County suit. Because Kram-beck could have asserted her personal injury claim with her cross-claim in the Meade County suit, the circuit court in Butte County concluded that res judicata precluded Krambeck from subsequently asserting that claim. Today, this Court reverses. In doing so, the Court discusses res judicata but ultimately reverses based on the “compulsory counterclaim rule.” Supra, ¶¶ 21-22. I write to explain the relationship between res judicata and the compulsory counterclaim rule. I also write to clarify the circumstances under which omitted cross-claims are barred.

[¶ 27.] When applied to permissive cross-claims, the “compulsory counterclaim rule” is “considered a codification of the principles of claim preclusion, i.e., res judi-cata, and issue preclusion, i.e., collateral estoppel.” Hemme v. Bharti, 183 S.W.3d 593, 599 (Mo.2006) (citation omitted). This Court has also recognized this relationship. This Court noted that under the compulsory counterclaim rule, “res judicata will bar a claim ... only if the claim should have been properly raised as a counterclaim in [the prior proceeding].” Sioux Enterprises, Minnesota v. Tri-State Refining Co., 456 N.W.2d 774, 778 (S.D.1990) (three justices, concurring specially). Although the elements of these doctrines are not identical: “If the compulsory counterclaim rule does not apply, neither does claim preclusion (res judicata).” Hemme, 183 S.W.3d at 599. Therefore, although this Court ultimately applies the compulsory counterclaim rule, see supra ¶¶ 20-22, by adopting Hemme, we have implicitly analyzed this issue as a matter of res judicata.

[¶ 28.] I also write to clarify one portion of our opinion. The Court notes that under SDCL 15 — 6—13(g), cross-claims are ‘always permissive and never compulsory.’ ” Supra, ¶ 22 (quoting Hemme, 183 S.W.3d at 596). From this, the Court concludes that a claimant like Krambeck was not required to assert a personal injury claim in the first litigation. Id. Although this result is correct, the Missouri Supreme Court rejected this analysis, noting “it has the beauty of simplicity and works in this case, [but] this analysis does not consistently yield the correct answer.” Hemme, 183 S.W.3d at 596. The Court further explained that some permissive cross-claims may be barred by the compulsory counterclaim/res judicata rule:

The counterclaim rule is not limited to claims by a defendant against a plaintiff-Rule [13(a)] does not use those labels. So it is possible for co-parties in some circumstances to be “opposing parties,” for example, when one co-party brings a claim for its own damages against another co-party. In that circumstance, they would be opposing parties-though both originally are co-defendants-and, thus, would be subject to the compulsory counterclaim [and res judicata rules].

Id. As other courts have also explained, “once a cross claim has been pleaded, the cross-claimant becomes an opposing party, and ‘[t]he party against whom [the] cross-claim is asserted must plead as a counterclaim any right to relief that party has against the cross-claimant that arises from the same transaction or occurrence.’ ” Earle M. Jorgenson Co., v. T.I. United States, Ltd., 133 F.R.D. 472, 475 n. 10 (E.D.Pa.1991)(quoting Arthur F. Green-baum, Jacks or Better to Open: Procedural Limitations on Co-Party and Third-Party Claims, 74 Minn. L.Rev. 507, 551 (Feb.1990)) citing Rule 13(a)).

[¶ 29.] In my view, the bar to subsequently submitting omitted cross-claims is dependent upon the nature of the claim. The assertion of a substantive cross-claim by one co-defendant triggers these preclu-sive rules while procedural claims, such as those for contribution and indemnity, do not. Cross-claims for contribution and indemnity among co-defendants are considered procedural, therefore, they do not make co-parties adverse for purposes of applying res judicata and the compulsory counterclaim rule. Hemme, 183 S.W.3d at 598 (citing Augustin v. Mughal, 521 F.2d 1215 (8th Cir.1975) (applying both Missouri and federal law); Kirkcaldy v. Richmond Cty. Bd. of Education, 212 F.R.D. 289 (M.D.N.C.2002); Rainbow Mgmt. Group, Ltd. v. Atlantis Submarines Hawaii, L.P., 158 F.R.D. 656 (D.Haw.1994); Answering Serv., Inc. v. Egan, 728 F.2d 1500 (C.A.D.C.1984)).

[¶ 30.] Only substantive cross-claims are adequately mature to make the parties sufficiently adverse to be “opposing parties” within the meaning of the compulsory counterclaim (and res judicata) rule. Hall v. General Motors Corp., 647 F.2d 175, 184, 207 U.S.App.D.C. 350, 359 n. 38 (C.A.D.C.1980) (reasoning “contribution and indemnity claims are contingent on the outcome of the main claim and therefore do not fit the Fed.R.Civ.P. 13(a) compulsory counterclaim formula”) (citing Chicago Freight Car Leasing Co. v. Martin Marietta Corp., 66 F.R.D. 400 (N.D.Ill.1975); Hartford Accident & Indemnity Co. v. Levitt & Sons, Inc., 24 F.R.D. 230 (E.D.Pa.1959)). This is consistent with our reasoning in Sioux Enterprises recognizing that “ ‘a party need not assert a counterclaim that has not matured at the time [that party] serves [the] pleading.’ ” 456 N.W.2d at 778 (Sabers, J., concurring) (quoting Staab v. Skoglund, 89 S.D. 470, 478, 234 N.W.2d 45, 49 (1975)). After analyzing a number of decisions on this issue, the District Court in Hawaii adopted what appears to be the most practical approach:

Co-parties become opposing parties within the meaning of [the compulsory counterclaim rule] after one such party pleads an initial cross-claim against the other ... [H]owever, ... this rule should be limited to situations in which the initial cross-claim includes a substantive claim (as opposed to merely a claim for contribution and indemnity). The reason for this modification is that an unlimited rule may actually increase the amount or complexity of litigation.

Rainbow Management Group, 158 F.R.D. at 660. This same “substantive” limitation should be applied to claims that were omitted by the party filing the first cross-claim. See Hemme, 183 S.W.3d 593.

[¶ 31.] In the instant case, the cross-claims in the Meade County litigation asserted between Krambeck and Macer were procedural, unmatured claims for contribution and indemnity. For this reason, the compulsory counterclaim rule did not preclude the bringing of the subsequent, substantive claim for personal injuries. Therefore, the judgment dismissing the Butte County case must be reversed and remanded.

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

      . It is surprising because this is an automobile accident case involving the South Dakota Financial Responsibility law mandating liability coverage for all drivers. It also involves claims which may put the insurance carrier's attorney in conflict with the customer and require the hiring of independent counsel.

      . SDCL 15-6-13(a) provides:
      A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if: (1) At the time the action was commenced the claim was the subject of another pending action; or (2) The opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under § 15-6-13; or (3) If the claim is not one over which the court would have jurisdiction if brought as an original action.

      . Some courts treat the underlying basis for the compulsory counterclaim rule as matters of waiver or estoppel, rather than res judica-ta. See 6 Charles Alan Wright, Arthur R. Miller, and Maty Kay Kane, Federal Practice and Procedure, § 1417 (1990); 3 James Moore, Moore’s Federal Practice § 13.14[1] (3d ed. 2006). It should also be pointed out that some respected commentators consider waiver or estoppel to be better underlying theories for barring omitted claims in cases like this where an insurance company has controlled the defense of the first action.
      In many ways [waiver or estoppel] provides a more apposite and useful approach to the problem of omitted counterclaims than does the doctrine of claim preclusion. For example, it affords a means of extricating a defendant who has not knowingly refrained from asserting his claim from the rigors of the compulsory counterclaim rule; this type of safety valve may be particularly important when an insurance company has controlled the defense of the first action and the actual defendant has not had a realistic opportunity to assert his claim.

        Wright, § 1417. Some courts also prefer the estoppel or waiver analysis; “In most instances, application of either res judicata or waiver principles will yield the same result, but, ... we prefer the flexibility of a waiver analysis to the more rigid rules applicable to res judica-ta.” Kane v. Magna Mixer, Co., 71 F.3d 555, 562-563 (6th Cir.1995).
      Ultimately, the outcome of this case is not dependent upon this distinction. Therefore, we leave the precise underlying theory for another day.


author: GILBERTSON, Chief Justice.

text:
    2007 SD 12
    Bob GRAY, President Pro Tempore of the South Dakota State Senate and Members of the South Dakota State Senate, Applicants, v. David R. GIENAPP, Circuit Judge, Respondent, and Daniel Sutton, Intervenor and Respondent.
    No. 24407.
    Supreme Court of South Dakota.
    Decided Jan. 18, 2007.

      Lawrence E. Long, Attorney General, Roxanne Giedd, Assistant Attorney General, Jeffrey P. Hallem, Deputy Attorney General, Pierre, SD, Attorneys for Applicants Bob Gray and Members of the South Dakota State Senate.
    Michael J. Butler of Butler Law Office, Sioux Falls, SD, Patrick Duffy of Duffy and Duffy, Rapid City, SD, Attorneys for Intervenor and Respondent Daniel Sutton.
   GILBERTSON, Chief Justice.

[¶ 1.] On January 10, 2007, the circuit court for the Third Judicial Circuit, venued in Moody County, the Honorable David Gienapp presiding, filed an alternative writ of prohibition. It ordered Bob Gray, the president pro tempore of the South Dakota Senate, and the members of the Senate to “desist and refrain” “during the 2007 South Dakota Legislative Session under Proposed Senate Rules on Discipline and Expulsion of Members” from holding any hearings regarding Senator Dan Sutton’s alleged sexual misconduct with a senate page. The writ also restrained Gray and the Senate from disclosing the contents of the Division of Criminal Investigation’s investigation “in any public manner or fashion.”

[¶ 2.] On January 11, 2007, the Senate applied for a writ of prohibition from this Court. It asks this Court to declare that the alternative writ of prohibition is without force and effect, thereby allowing the Senate to proceed to resolve the legislative issues regarding Senator Sutton.

FACTS

[¶ 3.] In February 2006 an eighteen-year-old senate page contacted the attorney general and alleged that Dan Sutton, a state senator for District 8, made sexual advances and inappropriately touched him at a Ft. Pierre motel. The complaint was referred to the Division of Criminal Investigation. No criminal charges have been filed against Senator Sutton.

[¶ 4.] On October 11, 2006, Senator Lee Schoenbeck, then president pro tempore of the Senate, was contacted by the father of the page regarding the allegations. Scho-enbeck wrote to Senator Sutton the next day and advised him:

We do not have authority to bring criminal charges. The worst that the senate can do is to expel. The full legislature would have the power to impeach. I will formally refer this to either the Executive Board or the Governor in one week. If you are no longer a member of the state senate on October 18th, there will be no further action for the senate to take on this matter.

Senator Sutton did not resign by October 18.

[¶ 5.] On October 27, 2006, Governor M. Michael Rounds, pursuant to Article IV, § 3 of the South Dakota Constitution and in response to a request of the Senate’s executive board, issued an Executive Proclamation calling the Senate into a special session on November 27, 2006. The purpose of the special session was “to hear, investigate and deliberate allegations concerning the conduct of Senator Dan Sutton and to take such action or actions as the Senate of the South Dakota State Legislature deems, in its collective judgment, to be necessary!.]”

[¶ 6.] On November 7, 2006, Senator Sutton was reelected to the Senate for the 2007 and 2008 sessions by District 8 voters. He was also served with a written notice of the special session to “investigate public allegations of conduct unbecoming a State Senator pursuant to Article III, § 9 of the South Dakota Constitution and the Rules of the South Dakota Legislature and Rules of the South Dakota Senate!.]”

[¶ 7.] Senate leaders released their proposed rules for the special session on November 13, 2006. Senator Sutton resigned from the 2006 Senate the next day, November 14, 2006, and announced that he intended to reclaim his seat in January 2007 pursuant to his November 7, 2006 reelection. The special session was can-celled.

[¶ 8.] The Eighty-Second session of the legislature convened on January 9, 2007. Senator Sutton took the oath of office and was seated. The Senate also voted to adopt the permanent joint rules and the permanent Senate rules of the Eighty-First legislative session as the temporary rules of the Eighty-Second legislative session.

[¶ 9.] Joint Rule 1-11 of the Eighty-First legislative session provides:

Either house may punish its members for disorderly behavior and, with concurrence of two-thirds of all members elected, expel a member. The reason for such expulsion shall be entered on the journal with the names of the members voting on the question.

[¶ 10.] In addition, the joint rules of the Eighty-First legislative session include a chapter on decorum. While many of the sections in this chapter deal with decorum within either chamber or gallery, Rule 1A-4 prohibits sexual harassment and provides, in part, “[a]ll members shall avoid any action or conduct which could be viewed as sexual harassment.”

[¶ 11.] Moreover, Senate Rule S5-2 provides “Mason’s Manual of Legislative Procedure governs the proceedings of the Senate in all proceedings of the Senate in cases not covered by these rules or the Joint Rules.” The House has a similar rule. Rule H4-2. Mason’s Manual is a widely recognized authority on state legislative and parliamentary procedures. Chapter 50 of this manual, which the Senate adopted, deals with the election and qualifications of members and the discipline and expulsion of members.

[¶ 12.] On January 10, 2007, the Senate adopted the temporary Senate rules as the permanent rules of the Eighty-Second legislative session. It also adopted rules regarding the discipline and expulsion of members and amended these to the Senate rules as a new chapter. Senator Sutton was excused from this vote.

[¶ 13.] The rules regarding the discipline and expulsion of members allow any senator to move for the establishment of a select committee to investigate the conduct of any other senator. Upon passage of the motion by a majority vote, a nine member committee is formed. The rules deal with committee meetings, notice, procedures in committee, subpoena power, contempt, and the effect of the investigated senator’s resignation. Under these rules a member being investigated receives notice, is entitled to attend all meetings with legal counsel, and is afforded “full opportunity to present the member’s position, to present witnesses in support of the member’s position, and ... to confront and question witnesses called by the committee!.]” Rule 8-4(3). Any action to expel, censure, discipline, or exonerate a senator is proposed in a committee report to the Senate. The full Senate then considers whether to adopt the committee report. Expulsion requires a two-thirds majority vote. Censure or discipline requires a three-fifths vote. Exoneration requires a majority vote.

[¶ 14.] At this point there has been no motion to establish a select committee on discipline and expulsion to investigate the allegations against Senator Sutton. On January 10, 2007, the day the Senate adopted its rules, Senator Sutton went to the circuit court where he applied for and received, without prior notice, an alternative writ of prohibition ordering the Senate to refrain from holding any hearings regarding Senator Sutton under the rules of discipline and expulsion.

STANDARD OF REVIEW

[¶ 15.] We set forth the standard of review for this type proceeding in Doe v. Nelson, 2004 SD 62, ¶ 7, 680 N.W.2d 302, 305:

The ordinary standard of review of a trial court’s decision involving the request to issue a writ of prohibition is abuse of discretion. H & W Contracting v. City of Watertown, 2001 SD 107, ¶ 24, 633 N.W.2d 167, 175. In this case, however, there were no issues of fact for the trial court to resolve. The issues before it were solely those of statutory and constitutional interpretation, thus being questions of law. As such, an erroneous interpretation of law if prejudicial, may be by definition an abuse of discretion. Cf. State v. Ashbrook, 1998 115, ¶ 6, 586 N.W.2d 503, 506.
ISSUE
[¶ 16.] Did a circuit court judge of the Third Judicial Circuit have jurisdiction to prohibit the Senate, while the legislature is in session, from commencing legislative proceedings under rules adopted by it, to investigate allegations against Senator Sutton, one of its members, for misconduct, including sexual misconduct involving a former employee, a senate page?

DISCUSSION

A.

[¶ 17.] Article II of the South Dakota Constitution provides:

The powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this Constitution.

Article II explicitly states the separation of powers doctrine and encompasses three prohibitions:

(1) no branch may encroach on the powers of another, (2) no branch may delegate to another branch its essential constitutionally assigned functions, and (3) quasi-legislative powers may only be delegated to another branch with sufficient standards.

State v. Moschell, 2004 SD 35, ¶ 14, 677 N.W.2d 551, 558. “Each branch, so long as it acts within the limitations set by the constitution, may exercise those powers granted to it by the constitution without interference by the other branches of government.” State ex rel. Walter v. Gutzler, 249 N.W.2d 271, 273 (S.D.1977).

B.

[¶ 18.] This Court has both constitutional and statutory authority to issue a writ of prohibition to “arrest” or halt the proceedings of any tribunal or lower court under appropriate circumstances. Sioux Falls Argus Leader v. Miller, 2000 SD 63, ¶ 4, 610 N.W.2d 76, 81 (citing S.D.Const. art. V, § 5; SDCL 21-30-1; 21-30-2; Cummings v. Mickelson, 495 N.W.2d 493, 495 (S.D.1993)). The supreme and circuit courts may issue a writ of prohibition “to an inferior tribunal, or to a corporation, board or person, in all cases where there is not a plain, speedy, and adequate remedy in the course of law.” SDCL 21-30-2. The writ “arrests the proceedings, administrative or judicial, of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, or are without or in excess of the powers of authority conferred by law upon such tribunal, corporation, board, or person.” SDCL 21-30-1. Prohibition is a preventative remedy rather than a corrective one. State ex rel. Line v. Kuhlman, 167 Neb. 674, 94 N.W.2d 373 (1959).

[¶ 19.] The doctrine of separation of powers has been a fundamental bedrock to the successful operation of our state government since South Dakota became a state in 1889. A few years later this Court decided State ex rel. Cranmer v. Thorson, 9 S.D. 149, 68 N.W. 202 (1896). We were asked, in an original action, to enjoin the secretary of state from certifying to the voters a proposed constitutional amendment which had been passed by the legislature. We concluded that we did not have jurisdiction to issue an injunction because it would interfere with legislative proceedings. In so doing, we examined the issue of our authority to grant injunctive relief in instances involving our constitutional relationship with the actions of the legislature:

Because this Court has power to issue writs of mandamus, quo warranto, cer-tiorari, injunction and other original and remedial writs, with authority to hear and determine the same, in such cases ... it does not follow that it has jurisdiction to issue an injunction upon any and all occasions.
[N]o consideration of policy or convenience should induce the courts to assume to exercise a power that does not belong to them, nor, on the other hand, should any consideration of that kind, or of any kind, induce them to surrender a power which it is their duty to exercise. The assumption of a power not vested in them would be a violation of the constitution, since it would be a usurpation of the power conferred upon another branch of the government. It would disturb the system of checks and balances which the constitution has so carefully constructed and which the courts have ever guarded with most scrupulous care.

9 S.D. 149 at 152, 156, 68 N.W. at 202-03, 204.

[¶ 20.] The question in this case then, is whether the circuit court encroached on the powers of the legislature by issuing an alternative writ prohibiting the Senate from proceeding with a disciplinary hearing of a member.

[¶ 21.] Each house of the legislature “shall be the judge of the election returns and qualifications of its members” and “shall determine the rules of its proceedings.” S.D.Const. art. Ill, § 9. “[T]he power of each house to pass upon the qualifications of its own members is exclusive or plenary.” Gutzler, 249 N.W.2d at 273.

[¶ 22.] The powers possessed by the legislature are broad:

The South Dakota Constitution, unlike the Constitution of the United States, does not constitute a grant of legislative power. Instead, our constitution is but a limitation upon the legislative power and the legislature may exercise that power in any manner not expressly or inferentially proscribed by the federal or state constitutions. Thus, except as limited by the state or federal constitutions, the legislative power of the state legislature is unlimited. What the representatives of the people have not been forbidden to do by the organic law, that they may do. Consequently, in determining whether an act is unconstitutional, we search the state and federal constitutions for provisions which prohibit its enactment rather than for grants of power.

Doe, 2004 SD 62, at ¶ 25, 680 N.W.2d at 312 (quoting Breck v. Janklow, 2001 SD 28, ¶ 9, 623 N.W.2d 449, 454). (emphasis in original).

[¶ 23.] Although Doe dealt with the issue of the constitutional authority of the governor to grant pardons, this Court recognized that the doctrine quoted above vests the legislature with “inherent authority.” Id. Cited as example of the legislature’s “inherent authority” is “the power ‘to superintend its internal management and carry out its constitutionally-mandated duties.’ ” Id. ¶ 25 n. 12, 680 N.W.2d at 312 n. 12. (citations omitted)(emphasis added).

[¶ 24.] This concept is embodied in a recent Florida case where a circuit court entered a temporary restraining order prohibiting the legislature from convening a public hearing to resolve an impasse between the public employees union and the governor. Florida Senate v. Fl. Public Emp. Council 79, 784 So.2d 404 (Fla.2001). The Senate asked the Florida Supreme Court to issue a writ of prohibition. The Florida Supreme Court recognized that one of the precepts underlying the separation of powers is that no branch may encroach upon the power of another.

Where the legislature is concerned, it is only the final product of the legislative process that is subject to judicial review:

It is the final product of the legislature that is subject to review by the court, not the internal procedures. As we stated in General Motors Acceptance Corp. v. State, 152 Fla. 297, 303, 11 So.2d 482, 485 (1943), the legislature has the power to enact measures, while the judiciary is restricted to the construction or interpretation thereof.

Id. at 408. When the circuit court entered its order barring the Florida Senate from convening a scheduled public hearing it “contravened the internal workings of the Legislature” and “impinged on the sovereignty of a co-equal branch of government.” Id. at 409. Accordingly, the Florida Supreme Court granted the petition for the writ.

C.

[¶ 25.] In his affidavit and application for writ of prohibition in circuit court Senator Sutton argued that his potential removal from office for conduct occurring prior to the 2007 legislative session “if done in violation of the State Constitution and State Codified Law” would result in irreparable harm to himself and the voters of District 8. He asked the circuit court to pierce the power of the legislature to judge the qualifications of its members under the authority of Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969).

[¶ 26.] In November 1966 Adam Clayton Powell was elected to serve in the United State House of Representatives for the Ninetieth Congress. Although he met the constitutionally mandated standing requirements of age, citizenship, and residence, he was excluded from taking his seat pursuant to a House Resolution based upon allegations that he had deceived House authorities as to travel expenses when he was a member of the Eighty-Ninth Congress.

[¶ 27.] The United States Supreme Court rejected the contention that the case did not arise under the United States Constitution within Article III because Article I, § 5 granted each house the power to judge the qualifications of its members. The Court noted that a suit arises under the Federal Constitution if a petitioner’s claim will be sustained if the Constitution is given one construction and defeated if given another. 395 U.S. at 514, 89 S.Ct. at 1960, 23 L.Ed.2d 491. The Court went on to hold that the qualifications of persons who may be chosen are defined by the Constitution and are unalterable by the legislature. The House was powerless to exclude Powell because he had been elected by the voters of his district and was not ineligible to serve under Constitutional provisions.

[¶ 28.] The Supreme Court noted that exclusion and expulsion “are not fungible proceedings.” 395 U.S. at 512, 89 S.Ct. at 1959, 23 L.Ed.2d 491. The House could not exclude a duly elected person meeting all the requirements for membership expressly prescribed in the Constitution. The Court expressed no view on what limitations may exist on Congress’ power to expel or punish a member once he has been seated. 395 U.S. at 507 n. 27, 89 S.Ct. at 1956, 23 L.Ed.2d 491.

[¶ 29.] We were called upon to examine the scope of our judicial authority to issue a writ of prohibition over contested legislative seats in McIntyre v. Wick, 1996 SD 147, 558 N.W.2d 347. The three Justice majority concluded authority existed over the re-count of the ballots. However, the determination as to who would be seated was left to the legislature after it conducted what proceedings it felt necessary.

[T]he final power of determination clearly lies with the applicable house of the legislature and we do not presume to invade it.... [T]his Court has no power under the constitution to make any final determination of the election as regards who will be seated. That power remains with the legislature under South Dakota Constitution Article III, § 9.

McIntyre, 1996 SD 147 at ¶ 19, 20 n. 5, 7, 558 N.W.2d at 356 n. 5, 7. The two dissenting Justices concluded that there was no judicial authority to either recount the votes or declare the winner — both resided with the legislature. “At its essence, the dispute here is a nonjusticiable controversy — a political question — which is beyond our jurisdiction to consider in any form.” Id. at ¶ 63, 558 N.W.2d at 364. (Sabers, J., and Amundson, J., dissenting).

[¶ 30.] In this case, Senator Sutton was not excluded from his Senate seat. He has taken his oath of office. What future action, if any, will be taken by the Senate is purely speculation at this point. The attorney general confirms that this is the limited scope of the issue before us when he stated in his brief:

Whether the ultimate product of the Senate may be subject to review ... need not be decided by this Court. Indeed any such decision would be premature since there is nothing in the record to indicate what if any, action the Senate may ultimately take as a result of its investigation into the allegations of [Senator] Sutton’s misconduct.

D.

[¶ 31.] The circuit court had no jurisdiction to halt a legislative disciplinary process. Neither did it have the authority to preclude disclosure of the contents of any investigation preparatory for the disciplinary hearing. We limit our holding to those points as that is all the circuit court prohibited the Senate from doing. The writ of prohibition sought by the Senate against the circuit court shall issue.

[¶ 32.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

       In McIntyre the Court commented on what legislative proceedings may possibly occur to determine the winners of the contested legislative seats:
      When the legislature assembles at the Capitol in January, any person may appear before either house and assert his rights and title to any seat therein in accord with the procedures prescribed by the legislature. If such a claim is asserted, whether or not the house will listen to it, what proof it will require, what investigation it will make and what decision it will finally come to concerning the claim are matters entirely and exclusively for that house to determine. If such a claim is presented and the house sees fit to investigate it, no one can doubt the power of that house to summon and interrogate witnesses, to order ballots and ballot boxes relating to the election to the contested seat brought in for examination and to open and examine the same or send a committee out for that purpose.
      1996 SD 147 at ¶ 21, 558 N.W.2d at 357.