author: KAPSNER, Justice.

text:
    2006 ND 136
    KENMARE EDUCATION ASSOCIATION, Petitioner and Appellant v. KENMARE PUBLIC SCHOOL DISTRICT NO. 28, Respondent and Appellee.
    No. 20050422.
    Supreme Court of North Dakota.
    June 29, 2006.

      Michael Geiermann (argued), Schulz Géiermann & Bergeson Law Offices, P.C., Bismarck, ND, for petitioner and appellant.
    Gary R. Thune (argued), Pearce & Dur-ick, Bismarck, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Kenmare Education Association (“KEA”) appeals from a judgment denying a petition for a writ of mandamus. The petition sought the removal of contract language in the negotiated agreement inserted by the Kenmare Public School District No. 28 (“School District”) after negotiations failed to resolve a conflict. We hold the district court did not abuse its discretion in denying the writ of mandamus, was, not clearly erroneous in its finding of good faith negotiations, and did not err in concluding the. School District had the authority to issue a last-offer contract. We affirm.

I

[¶ 2] When a speech language pathologist left Kenmare in June 2004, the School District attempted to hire a replacement. The School District was unable to hire a new speech language pathologist before the start of the next school year due in part to a salary limitation of $30,000 a year. The School District was limited from offering a higher salary because a contract negotiated by the School District and KEA fixed the amount of pay a teacher could make. Because the School District was unable to hire a replacement at a salary of $30,000 a year, the School District contracted with the Souris Valley Special Education Unit for the services of a speech language pathologist and teacher’s aide for a cost of approximately $60,000. As a cost saving measure for future years, the School District wanted the authority to provide incentive payments to teachers in hard-to-fill positions.

[¶ 3] On April 13, 2005, the School District and KEA began contract negotiations for the following school term. KEA represents the certified teaching personnel within the Kenmare school system as the representative organization. The parties reached agreement on most negotiable issues, but could not resolve one issue proposed by the School District. The School District requested additional contract language that would allow the School District the discretion to pay more than the minimum hiring salary. KEA objected to the proposed language. KEA claimed giving the School District the discretion to increase an individual’s salary would usurp the organization’s power and allow for individual contract negotiations. Following additional negotiations, the School District countered with proposed language that would allow an individual in a difficult-to-hire position — as defined by the Educational Standard and Practices Board — to be paid a salary not to exceed $15,000 more than the minimum hiring salary. KEA again objected. The parties agreed they had reached an impasse in negotiations. They requested the North Dakota Education Fact Finding Commission (“Commission”) review the dispute.

[¶ 4] The Commission recommended the School District be allowed to provide for special accommodations of higher pay only for a speech language pathologist, but not provide additional compensation for any other difficult-to-hire position. Following the Commission’s recommendation, the parties again attempted to negotiate an agreement. When no agreement could be reached, the Commission’s findings were published in the local newspaper.

[¶ 5] Following the publication, the parties engaged in a final round of negotiations, this time including the School District’s final offer. The School District’s final offer — based on what the Commission had recommended — allowed the School District to pay a speech language pathologist an amount up to $15,000 more than the base pay for teachers. The additional pay was limited to this single teaching area and was limited to years in which a speech language pathologist was considered a hard-to-fill-position as defined by the Educational Standard and Practices Board. KEA again objected to this additional language arguing the proposed language would allow the School District to engage in separate contract negotiations, rather than allowing KEA the exclusive right to negotiate for teachers employed by the School District. The School District then unilaterally included this proposed language in the agreement.

[¶ 6] KEA filed a petition for a writ of mandamus in district court requesting the School District be forced to remove the additional contractual language in the negotiated agreement. An “Alternative Writ of Mandamus” was issued the same day the petition was filed requiring the removal of the disputed language or, in the alternative, an appearance before the district court. After a hearing and full briefing by the parties, the district court vacated the Alternative Writ of Mandamus and denied KEA’s request for a writ of mandamus. The court found the parties acted in good faith, and the additional contractual language did not give the School District the authority to go beyond the negotiated agreement for recruiting qualified instructors in any other subject area.

[¶ 7] KEA appeals claiming the School District did not negotiate in good faith, and the court erred in denying the writ of mandamus because the ’current arrangement allows the School District to unilaterally issue contracts and negotiate with individual teachers. The School District argues the .court did not abuse its discretion in denying the writ of mandamus, was not clearly erroneous in its finding of good faith negotiations, and properly concluded the School District had authority to include language providing a higher salary for a speech language pathologist.

II

[¶ 8] KEA argues the School District did not negotiate in good faith because it issued contracts based upon a final offer of the School District. KEA petitioned for a writ of mandamus requiring the School District to remove the additional contract language regarding the speech language pathologist.

[¶ 9] Issuance of a writ of mandamus .is left to the sound discretion of the district court. Wutzke v. Hoberg, 2004 ND 42, ¶ 3, 675 N.W.2d 179. A district court abuses its discretion if it acts in an arbitrary, unreasonable, or capricious manner, or if it misapplies or misinterprets the law. Id.

[¶ 10] Section 32-34-01, N.D.C.C., governs the issuance of writs of mandamus:

The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....

[¶ 11] A petitioner for a writ of mandamus must first demonstrate a clear legal right to performance of the particular act sought to be compelled by the writ. Ward County Farm Bureau v. Poolman, 2006 ND 42, ¶ 8, 710 N.W.2d 423. The petitioner must also demonstrate there is no other plain, speedy, and adequate remedy in the ordinary course of law. Wutzke v. Hoberg, 2004 ND 42, ¶ 3, 675 N.W.2d 179. To determine whether KEA was entitled to the writ, we must examine whether the School District had the authority to issue its last-offer negotiated agreement.

[¶ 12] KEA argues Hilton v. N.D. Educ. Ass’n, 2002 ND 209, 655 N.W.2d 60, requires all teachers to be bound by the negotiated agreement and holds teachers cannot be treated discriminately as the School District proposes to treat the speech language pathologist. In Hilton we stated:

Hilton therefore was a teacher for purposes of the teachers’ representation and negotiation law, and we conclude the trial court correctly decided Hilton was a member of the C.E.A. appropriate negotiating unit. Because Hilton was a member of the C.E.A. appropriate negotiating unit, he was bound under N.D.C.C. ch. 15-38.1 by the negotiated agreement between the C.E.A. appropriate negotiating unit and the School District.

Id. at ¶ 19. Hilton is distinguishable from this case. In Hilton, the core issue this Court was deciding was whether a counsel- or, who was certificated under N.D.C.C. ch. 15-36 and who did not devote more than half time to administrative duties, was a teacher as defined by statute. This Court determined the counselor was a teacher and therefore Hilton was “bound under N.D.C.C. ch. 15-38.1 by the negotiated agreement” between the “negotiating unit and the School District.” Id.

[¶ 13] The process of getting to the negotiated agreement was not at issue in Hilton, as it is here. Although the resolution of the negotiations in this case included the imposition of a provision that will allow a single position to be treated differently from other teachers, that resolution does not conflict with Hilton because it is part of the negotiated agreement resulting from the negotiations between the parties. Further, that provision is subject to the limitations discussed below.

Ill

[¶ 14] If a statutory representative organization is formed, a school district must negotiate with the representative organization under N.D.C.C. § 15.1-16-08, and must negotiate in good faith. N.D.C.C. § 15.1-16-13.

[¶ 15] Unlike a private sector employee, a teacher does not have the option of engaging in a strike. See N.D.C.C. § 15.1-16-16. As such, teachers are often without the ultimate bargaining weapon that could pressure their employers into agreement. In order to compensate for the lack of a right to strike, the legislature has enacted an impasse provision that allows for mediation and a fact-finding process through the Commission. See N.D.C.C. §§ 15.1-16-02, 15.1-16-15. The Commission does not have binding authority on the parties, but does have the authority to make its findings public. Dickinson Educ. Ass’n v. Dickinson Pub. Sch. Dist., 499 N.W.2d 120, 122 n. 3 (N.D.1993) (Dickinson II). Our statute does not provide for additional procedures after a Commission has made its findings public and negotiations are still at an impasse.

[¶ 16] In Dickinson Educ. Ass’n v. Dickinson Pub. Sch. Dist. No. 1, 252 N.W.2d 205, 209 (N.D.1977) (Dickinson I), this Court addressed whether a school board is required to continue with negotiations after it has received the report of the Commission, has held a subsequent meeting with the teachers’ negotiating unit, and has found an impasse still existed. This Court found “no provision in Chapter 15-38.1, N.D.C.C., which would require such continued negotiations at such a point.” Id. This Court went on to hold:

We find that the statutory scheme set forth in Chapter 15-38.1, N.D.C.C., recognizes that there comes a point — after the conclusion of a good faith negotiation process — when a school board must be allowed to make contractual offers to the teachers of a school system, which contracts the teachers must choose either to accept or to reject. It should be noted that the provisions of such contracts so offered, relative to the status of negotiations, would be important factors in the determination of a school board’s motive.

Id. at 209-10 (emphasis removed); see also Edgeley Educ. Ass’n v. Edgeley Pub. Sch. Dist. No. 3, 256 N.W.2d 348, 354 (N.D.1977) (Edgeley II) (following Dickinson I and agreeing that a school district is allowed to give last-offer contracts to teachers following impasse and good faith negotiations).

[¶ 17] The power of school districts to issue last-offer contracts was limited by Dickinson II. In Dickinson II, we stated:

We recognize that NDCC Ch. 15-38.1 does not place school boards and public school teachers on equal footing in contract negotiations. In all contract negotiations conducted under NDCC Ch. 15-38.1, a school board always holds a trump card — the power to unilaterally issue last-offer contracts, which teachers must either accept or reject — ranking higher than any held by the teachers. Because of that tremendous disparity in bargaining power, we decline to extend Edgeley II to allow a school board to unilaterally issue last-offer contracts containing provisions that, while not applicable to the school year that is the subject of negotiation, are applicable to a future year not yet under negotiation.

Dickinson II, 499 N.W.2d 120, 126 (N.D.1993). Thus, the scope of a school district’s authority is limited when an impasse exists. A school district is precluded from issuing contracts on negotiable issues for future years. A school district is limited to issuing last-offer contracts for the current period of negotiations.

[¶ 18] This case falls under the Dickinson I analysis because the School District did not attempt to impose its last offer on future negotiation periods, as was attempted under Dickinson II. The School District’s last offer was limited to the contractual provisions for the current period of negotiations. KEA argues the School District does not have the power to issue this last-offer contract. This argument would essentially require us to overrule our previous decisions in Dickinson I and Edgeley II.

[¶ 19] In previous decisions, we requested a legislative solution that would correct our interpretation had we wrongly interpreted the statute. See, e.g., Dickinson I, 252 N.W.2d at 213; Edgeley II, 256 N.W.2d at 354. Notably, the Legislative Assembly in 2001 revised N.D.C.C. ch. 15-38.1 and replaced it with N.D.C.C. ch. 15.1-16. See 2001 N.D. Sess. Laws ch. 181, §§ 4, 21. The revised statute did not alter our previous construction of the statute, and did not address the difficult situation of what procedures to follow after an impasse has been reached, the Commission has issued its recommendation, and the parties still disagree as to how to resolve the dispute. The legislative silence in the 2001 revision of this statute suggests this Court’s decisions in Dickinson I, Edgeley II, and Dickinson II were correct. Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, ¶ 26, 632 N.W.2d 407 (legislature’s failure to amend language interpreted by the courts is evidence the court’s interpretation is in accordance with the legislative intent). If there is an impasse and an end in the negotiation process, a school district has the authority to issue last-offer contracts. Dickinson I, 252 N.W.2d at 209-10; Edgeley II, 256 N.W.2d at 354. A school district’s authority to issue last-offer contracts is limited to the current period of contract negotiations because of the unequal bargaining power. Dickinson II, 499 N.W.2d at 126. A school district is limited to issuing last-offer contracts that effect current periods of negotiation. Id.

[¶ 20] We are mindful that a school district’s authority to end contract negotiations creates unequal bargaining power. But pragmatically speaking, were negotiations to proceed unrestricted for an unlimited amount of bargaining, the School District and KEA might never form a contract. This Sisyphean act could not be what the legislature had in mind when it enacted the impasse provisions. The judicial remedy for this unequal bargaining power continues to be a probing review of the negotiation process for bad faith practices.

[¶ 21] KEA has not demonstrated a clear legal right to the removal of the additional contract language regarding a speech language pathologist, nor has it demonstrated the denial of the writ was an abuse of discretion. The district court correctly determined KEA was not entitled to the writ.

IV

[¶ 22] KEA argues the School District did not negotiate in good faith because it issued a contract in violation of KEA’s right to negotiate on behalf of the teachers. KEA bears the burden to affirmatively demonstrate the School District did not negotiate in good faith. Edgeley II, 256 N.W.2d 348, 352 (N.D.1977). Whether a party has negotiated in good faith is a question of fact reviewed under a clearly erroneous standard of review. Belfield Educ. Ass’n v. Belfield Pub. Sch. Dist. No. 13, 496 N.W.2d 12, 14 (N.D.1993).

[¶ 23] Under N.D.C.C. § 15.1-16-13, a duty of good faith negotiations is required of a school district and the representative organization. The overall conduct of the parties is evaluated to determine whether good faith negotiations have occurred. The statutory definition of good faith found in N.D.C.C. § 1-01-21 applies in teacher-contract negotiations:

Good faith shall consist in an honest intention to abstain from taking any un-conseientious advantage of another even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious.

Belfield Educ. Ass’n, 496 N.W.2d at 16. In assessing good faith, courts are to review whether parties have actively engaged in the bargaining process with an open mind and sincere desire to reach an agreement. Id.

[¶ 24] KEA has not demonstrated the court’s finding that the School District acted in good faith was clearly erroneous. Initially, the School District requested the following additional language: “At the discretion of the board, in hard to fill positions, the individual being hired may be paid over the minimum hiring salary.” There were several more negotiating sessions between the parties. During those meetings, all outstanding issues were settled between parties except for the additional language to increase wages above the salary schedule. The School District modified its proposal to be: “At the discretion of the board in hard to fill positions (defined by Educational Standard and Practices Board), the individual hired may be paid over the minimum hiring salary not to exceed $15,000.” The dispute was then brought before the Commission. After the Commission released its report, the parties again tried to negotiate an agreement, but were unsuccessful. Finally, the School District issued its final proposal that was included in the contract. The final language stated: “In years when speech language path[ologist] (SLP) has been classified by the ESPB as a hard to fill position, the board in [its] full discretion may offer an SLP candidate an annual salary which may exceed, by $15000 or less, that salary which is otherwise authorized by this negotiated agreement.”

[¶ 25] KEA has not pointed to any specific instances of conduct that would demonstrate bad faith by the School District. Furthermore, there has been no showing that the School District negotiated this contract with any group or individual other than KEA. KEA’s argument is premised on the erroneous assumption that contracts formed without KEA’s consent are bad faith per se. KEA has not demonstrated that the district court’s determination of good faith was clearly erroneous.

V

[¶ 26] KEA argues that as a matter of law it has the exclusive right to negotiate on behalf of the teachers in the district and the School District does not have the right to impose a contract provision which permits negotiations with individual teachers.

[¶ 27] By statute, teachers are not required to join a representative organization such as KEA. Section 15.1 — 16— 07(1), N.D.C.C., states: “An individual employed as a teacher may form, join, and participate in the activities of a representative organization of the individual’s choosing for the purpose of representation on matters of employer-employee relations.” N.D.C.C. § 15.1-16-07(1) (emphasis added). Teachers may also “refuse to join or participate in the activities of a representative organization.” N.D.C.C. § 15.1 — 16— 07(3). Nowhere in N.D.C.C. ch. 15.1-16 is the word “exclusive” used. KEA attempts to read an exclusivity requirement from N.D.C.C. § 15.1-16-08: “A representative organization has the right to represent a negotiating unit in matters of employee relations with the board of a school district. Any teacher or administrator has the right to present the individual’s views directly to the board.”

[¶ 28] Statutory interpretation is a question of law subject to full review upon appeal. Hilton v. N.D. Educ. Ass’n, 2002 ND 209, ¶ 10, 655 N.W.2d 60.

Our primary objective in the interpretation of a statute is to ascertain the intent of the legislature. We look first to the language of the statute. If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit. If a statute’s language is ambiguous or of doubtful meaning, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain legislative intent.

Harter v. N.D. Dep’t of Transp., 2005 ND 70, ¶ 7, 694 N.W.2d 677. A statute is ambiguous if it is susceptible to meanings that are different, but rational. Hilton, at ¶ 10.

[¶ 29] We have previously determined portions of the former version of the code ambiguous and have resorted to extrinsic aids, including legislative history, to interpret the statute. See, e.g., Hilton, 2002 ND 209, ¶ 16, 655 N.W.2d 60 (using legislative history to interpret whether counselor was a teacher for purposes of N.D.C.C. ch. 15-38.1); Loney v. Grass Lake Pub. Sch. Dist., 322 N.W.2d 470, 472-73 (N.D.1982) (stating N.D.C.C. ch. 15-38.1 ambiguous regarding whether school district’s only certified teacher-employee was appropriate negotiating unit entitled to negotiate with school district); Fargo Educ. Ass’n v. Fargo Pub. Sch. Dist., 291 N.W.2d 267, 271-72 (N.D.1980) (recognizing ambiguity in N.D.C.C. ch. 15-38.1 regarding subjects of negotiation). We conclude whether the representative organization has the “exclusive” right is ambiguous from the statute. We therefore look to the legislative history for guidance.

[¶ 30] The 2001 Legislative Assembly created an omnibus bill that revised several provisions of the education code previously found in Title 15. See 2001 N.D. Sess. Laws ch. 181. The bill'was designed to reword certain provisions of the code dealing with teacher representation and negotiation, but not to make substantive changes. Hearing on H.B. 1045 Before the House Standing Comm., 57th N.D. Legis. Sess. (Apr. 16, 2001) (testimony of Senator Wanzek). However, a draft version of N.D.C.C. § 15.1-16-08 “received some embellishment.” Id. (written testimony from the Legislative Council). “At the request of the NDEA [North Dakota Education Association], the committee added that an individual presenting his views directly to the school board may not enter into independent negotiations with the board.” Id. (written testimony from the Legislative Council). The proposed version of N.D.C.C. § 15.1-16-08 included the phrase “exclusive right to represent” and “may not enter into independent negotiations with the board.” Comparisons of Language Regarding the Right to Negotiate in Current Law, House Bill No. 104.5, and a Proposed Amendment, prepared by the North Dakota Legislative Council staff for Representative Hawken (April 23, 2001). The final version of the bill deleted the words “exclusive” and the language stating “may not enter into independent negotiations with the board.” N.D.C.C. § 15.1-16-08. The final version was not substantively changed from the previous version of the code. Compare the former version of N.D.C.C. § 15-38.1-08 repealed by 2001 N.D. Sess. Laws ch. 181, § 21:

15-38.1-08. Right to negotiate. Representative organizations have the right to represent the appropriate negotiating unit in matters of employee relations with the school board. Any teacher, or administrator, has the right to present his views directly to the school board.

with the final version of N.D.C.C. § 15.1— 16-08:

15-38.1-08. 15.1-16-08. Representative organization — Negotiating unit— Right to negotiate. Representative-organizations have A representative organization has the right to represent the-appropriate a negotiating unit in matters of employee relations with the school board of a school district. Any teacher, or administrator, has the right to present his the individual’s views directly to the school board.

[¶ 31] The “embellished” version of N.D.C.C. § 15.1-16-08 (created in House Bill No. 1045) proposed by NDEA and rejected by the Legislative Assembly provided:

A representative organization has the exclusive right to represent a negotiating unit in matters of employee relations with a school board. An individual employed as a teacher or as an administrator may independently present the individual’s views to a school board, but may not enter into independent negotiations with the board.

(Emphasis added).

[¶ 32] KEA is asserting a position that was rejected by the Legislative Assembly. It is not the province of this Court to enact judicially what the legislature rejected. Rather, we look to the statute to determine whether the negotiated agreement can provide for discriminate treatment of a single teacher. Section 15.1-16-13(1), N.D.C.C., provides:

The board of a school district or its representatives and the representative organization or its representatives shall, if requested by either entity, meet at reasonable times and negotiate in good faith regarding:
a. The terms and conditions of employment.
b. Employer-employee relations.
c. Formation of a contract, which may contain a provision for binding arbitration.
d. The interpretation of an existing contract.

We determine a and b of this subsection are broad enough to encompass a provision in the negotiated agreement that permits the School District to contract with an individual teacher on a distinct basis subject to the limitations outlined above. There is no suggestion in this record that the School District intended to or did negotiate separately with any teacher except for the speech language pathologist which negotiations would be constrained by the limits of the negotiated agreement. Under these facts, we conclude the limited ability to contract separately for an identified teacher need is not contrary to N.D.C.C. ch. 15.1-16.

VI

[¶ 33] We affirm the judgment of the district court.

[¶ 34] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

      . Although the parties failed to resolve this area of dispute we will, as the parties did, refer to the final resolution as the "negotiated agreement.”

      . While both Dickinson I and Dickinson II addressed the statutory scheme found under N.D.C.C. ch. 15-38.1, the same statutory scheme is in place at N.D.C.C. ch. 15.1-16. Thus, the same analysis is applicable.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. ZINTER, Justice

license: Public Domain

text:
    2006 SD 54
    STATE of South Dakota, Plaintiff and Appellee, v. Myron MILLER, Defendant and Appellant.
    No. 23846.
    Supreme Court of South Dakota.
    Considered on Briefs on April 24, 2006.
    Decided June 21, 2006.

      Lawrence E. Long, Attorney General, Jeremy Lund, Special Assistant Attorney General, Legal Division, Department of Social Services, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    John R. Murphy, Rapid City, South Dakota, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Myron Miller (Miller) was charged by indictment and arraigned on three counts of first degree rape and three alternative counts of sexual contact with a child under the age of sixteen. He was informed of the possible maximum penalty at the arraignment but not the mandatory minimum. Miller pleaded not guilty and proceeded to trial. He was convicted on two counts of sexual contact with a child under the age of sixteen and sentenced to five years in the state penitentiary. Miller appeals contending his constitutional rights were violated by the failure of the circuit court to advise him of the statutory mandatory minimum sentence he faced. We affirm.

FACTS AND PROCEDURE

[¶2.] Miller was charged with three counts (Count I, III and V) of first degree rape under SDCL 22-22-1, and three alternative counts (Counts II, IV and VI) of sexual contact with a child under the age of sixteen under SDCL 22-22-7. The charges resulted from an incident between Miller and B.K, the daughter of his girlfriend. B.K. was eight or nine years old at the time of the molestation. Miller’s theory of defense was that L.K. urged B.K. to fabricate the sexual molestation in an effort to prevail in the custody dispute between Miller and L.K. over the couple’s child, C.M.

[¶ 3.] On April 5, 2004, at his arraignment, Miller was advised that the possible maximum penalty for first degree rape under SDCL 22-22-1(1) was life in prison, and the sexual contact charge under SDCL 22-22-7 had a maximum sentence of fifteen years. However, he was not advised of the possible minimum penalties under SDCL 22-22-1.2. SDCL 22-22-1.2 provides:

If any adult is convicted of any of the following violations, the court shall impose the following minimum sentences:
(1) For a violation of subdivision 22-22-1(1), ten years for a first offense and twenty years for a subsequent offense; and
(2) For a violation of § 22-22-7 if the victim is less than ten years of age, five years for a first offense and ten years for a subsequent offense.

The State filed a Part II Habitual Offender Information that was eventually dismissed upon motion by Miller.

[¶ 4.] Prior to trial, Counts V and VI were dismissed by the State. Trial on the matter was held before a jury on February 22 through 25, 2005. Miller was acquitted on the first degree rape charges under Counts I and III, but was found guilty on the two charges of sexual contact with a minor under Counts II and IV. Miller moved for a directed verdict and judgment of acquittal at the close of the State’s case and the close of the defense case. Both motions were denied.

[¶ 5.] After trial, Miller filed a motion for new trial and objections to mandatory minimum sentence, which were presented to the circuit court on July 1, 2005, and September 2, 2005. The circuit court denied Miller’s motion for new trial. The circuit court found Miller had a due process right to notification of the mandatory minimum sentence upon a plea of not guilty, and sustained his objection.

[¶ 6.] The circuit court advised the parties that it would follow the authority cited by Miller in his brief, State v. Crawford, 128 Wash.App. 376, 115 P.3d 387 (2005). The circuit court narrowed the issue to whether Miller had received notice of the mandatory minimum sentence such that his due process rights were not violated. The circuit court further held that under Crawford, any notice, whether from the State, the trial court, or defense counsel, would fulfill the due process requirement to provide notice of mandatory minimum penalties. The circuit court then ordered Miller’s arraignment and trial counsel to testify at a hearing on the issue of notice.

[¶ 7.] Miller objected to the circuit court’s broad interpretation of the notice requirement in Crawford, arguing instead that the duty to inform fell on the circuit court and not on defense counsel. Miller clearly and emphatically stated to the circuit court that he was not raising an ineffective assistance of counsel claim. Despite his objection, the circuit court called the defense attorney who represented Miller at the arraignment and the defense attorney who represented Miller at trial to testify against him. Miller’s objection was overruled by the circuit court, which held that the attorney-client privilege would not prevent the court from gathering facts to determine whether Miller had received notice of the mandatory minimum sentences he faced. The circuit court found that the communication of “mere facts” between an attorney and client was not covered by the attorney-client privilege and that any exchange of information on minimum sentences was not a confidential communication.

[¶ 8.] At the hearing, Miller’s arraignment counsel testified that he did not recall discussing mandatory minimum sentences with Miller. His arraignment counsel also testified that a plea letter from the State to Miller during his representation did not reference the mandatory minimum sentences. Miller’s trial counsel testified to plea negotiations that occurred with the State on the eve of trial. A letter from the- state’s attorney to trial counsel dated February 18, 2005, was introduced in which two vague references to the mandatory minimum penalties were made. Trial counsel testified that he did not send the letter to Miller, but that he discussed the contents of the letter with him the-weekend before the trial.

[¶ 9.] Thereafter, the circuit court granted Miller’s objection and refused to apply the mandatory minimum sentences, instead holding that Miller’s due process rights were violated when he was not given notice either before or during trial that he faced a mandatory minimum sentence. After mitigation testimony was- received, the circuit court orally imposed a fifteen-year penitentiary sentence on Count II, but suspended the entire sentence. As to Count IV, Miller was sentenced to fifteen years in prison with five years suspended. The sentences were imposed consecutively.

[¶ 10.] Miller appeals the circuit court’s denial of his motion for new trial contending his Fifth Amendment due process rights were violated when he was not advised by the circuit court that he faced potential mandatory minimum sentences. He also contends the circuit court erred when it found that the attorney-client privilege did not apply to communications between Miller and his counsel as to the mandatory minimum penalties. We re-frame his issue as follows:

Whether a defendant who pleads not guilty suffers a violation of his Fifth Amendment right to due process such that a new trial is warranted when the circuit court fails to advise him of the statutory mandatory minimum sentences for the charges he faces.

STANDARD OF REVIEW

[¶ 11.] Appeals asserting an infringement of a constitutional right are reviewed under the de novo standard of review. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). A direct appeal from a conviction must be afforded greater scrutiny than a collateral challenge by habeas corpus action. State v. Moeller, 511 N.W.2d 803, 809 (S.D.1994). Thus, on a direct appeal from a conviction the defendant is entitled to all presumptions and protections possible under our constitution. Id.

ANALYSIS AND DECISION

[¶ 12.] Miller argues that he was entitled under the Due Process Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, to notice of the mandatory minimum penalties he faced upon entering a plea of not guilty. Miller concedes that this issue is not controlled by statute, as SDCL 23A-7-4 pertains to defendants who enter a plea of guilty or nolo contendere.

[¶ 13.] The Due Process Clause of the Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal ease to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

US Const, amend V (emphasis added). The Due Process Clause serves to safeguard against an unintentional or coerced relinquishment of known rights and privileges. Boykin v. Alabama, 395 U.S. 238, 243 n. 5, 89 S.Ct. 1709, 1712 n. 5, 23 L.Ed.2d 274 (1969) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

[¶ 14.] In the context of criminal prosecutions, the Due Process Clause safeguards against an involuntary and unknowing waiver of three important federal rights via a plea of guilty or plea of nolo contendere, 1) the privilege against compulsory self-incrimination, 2) the right to a speedy trial, and 3) the right to confront one’s accusers. Id. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d 274 (citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)). In order to affect a voluntary and knowing waiver of these rights via a guilty plea or plea of nolo contendere, the court must be satisfied that a defendant understands that such a plea is a relinquishment of these rights and what these rights entail. Id.

[¶ 15.] In addition to waiving these three constitutional rights, a defendant who pleads guilty is also entering an admission to all the elements of the formal criminal charge(s) against him. Id. at 243 n. 5, 89 S.Ct. at 1712 n. 5, 23 L.Ed.2d 274 (quoting Johnson, 304 U.S. at 466, 58 S.Ct at 1024, 82 L.Ed. 1461). Therefore, a defendant cannot make an admission to all the elements of a crime unless he possesses an understanding of the law in relation to the facts. Id. at 243-44, 89 S.Ct. at 1712-13, 23 L.Ed.2d 274. The court must ascertain that the defendant understands what a guilty plea entails and the consequences he will face as a result of the plea. Id.

[¶ 16.] However, there is no constitutional right to be offered the opportunity to plea bargain. Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977); Nguyen v. United States, 114 F.3d 699 (8th Cir.1997) (quoting United States v. Gonzales, 65 F.3d 814, 823 (10thCir.1995)) (citations omitted); People v. Curry, 178 Ill.2d 509, 227 Ill.Dec. 395, 687 N.E.2d 877 (1997) (citing People v. Palmer, 162 Ill.2d 465, 205 Ill.Dec. 506, 643 N.E.2d 797 (1994)); State v. McKinney, 185 Ariz. 567, 917 P.2d 1214 (1996) (citing State v. Draper, 162 Ariz. 433, 784 P.2d 259, 266 (1989); State v. Morse, 127 Ariz. 25, 617 P.2d 1141, 1147-48 (1980)); Medina v. State, 688 So.2d 727 (Miss.1996) (quoting Weatherford, 429 U.S. at 561, 97 S.Ct. at 846, 51 L.Ed.2d 30); Carpenter v. State, 929 P.2d 988 (Okla.Crim.App.1996) (citing State ex rel. Stout v. Craytor, 753 P.2d 1365, 1368 (Okla.Crim.App.1988)). Only when a prosecutor offers a defendant the opportunity to enter into a plea agreement, must the circuit court ascertain that the defendant entered it voluntarily and knowingly and the circuit court must advise the defendant of both the statutory maximum and mandatory minimum sentence faced. State v. Richards, 2002 SD 18, ¶ 7, 640 N.W.2d 480, 481-82 (quoting SDCL 23A-7-4(1) (citing State v. Wilson, 459 N.W.2d 457 (S.D.1990))).

[¶ 17.] To ensure that guilty pleas and pleas of nolo contendere are voluntary and knowing and to safeguard against violations of a defendant’s right to due process, Rule 11 of the Federal Rules of Criminal Procedure was enacted. McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969) (citing Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942)). However, the procedure embodied in Rule 11 is not mandated by the United States Constitution. Id. (citing Waddy v. Heer, 383 F.2d 789 (6th Cir.1967)). Rather, it is designed to assist the courts with making the constitutionally required determination that a defendant’s guilty plea is voluntary and knowing, and to produce a complete record of the voluntariness determination. Id. More importantly, the advisement of these rights and penalties under Rule 11 is applicable only when a defendant intends to enter a plea of guilty or nolo contende-re. FedRCrimP 11(a)(1). A defendant who elects to plead not guilty and proceed to trial is not provided the same procedural safeguards under Rule 11 as a defendant who pleads guilty or nolo contendere. See United States v. Robertson, 698 F.2d 703, 709 (5thCir.1983) (noting Rule 11 protections not applicable to a defendant who pleads not guilty even when not guilty plea is coupled with an inculpatory stipulation of facts) (citing Witherspoon v. United States, 633 F.2d 1247, 1252 (6thCir.l980), cert. denied, 450 U.S. 933, 101 S.Ct. 1396, 67 L.Ed.2d 367 (1981); United States v. Strother, 578 F.2d 397, 404-05 (D.C.Cir.1978); United States v. Terrack, 515 F.2d 558, 560 (9thCir.l975)); Gerald v. United States, 405 F.Supp. 404, 406 (E.D.N.C.1975) (noting that “[u]pon a plea of not guilty the court is not required to explain the elements of the offense, or explore with the defendant the range of possible defenses”).

[¶ 18.] SDCL 23A-7-4, South Dakota’s version of Rule 11 of the Federal Rules of Criminal Procedure, provides:

Before accepting a plea of guilty or nolo contendere a court must address the defendant personally in open court, subject to the exception stated in § 23A-7-5, and inform him of, and determine that he understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceedings against him and, if necessary, one will be appointed to represent him;
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;
(4) That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
(5) That if he pleads guilty or nolo con-tendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury-

South Dakota’s version of Rule 11 also serves as a procedural safeguard for determining that a guilty plea or plea of nolo contendere is voluntary and knowing. State v. DeNoyer, 541 N.W.2d 725, 729 (S.D.1995). The language of SDCL 23A-7-4 makes it clear that the circuit court is required to give an advisement of any mandatory minimum sentence the defendant might face only when the defendant enters a plea of guilty or nolo contendere

[¶ 19.] Furthermore, SDCL 23A-7-15 provides:

A verbatim record of the proceedings at which a defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court’s advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the factual basis of a guilty plea. A verbatim record of a proceeding at which a defendant enters a plea to a misdemeanor need not be taken unless requested by the prosecuting attorney or the defendant.

SDCL 23A-7-15 requires the circuit court to inquire on the record into the voluntariness and the factual basis of a guilty plea or plea of nolo contendere. No such inquiry is required for a not guilty plea. See SDCL 23A-7-15.

[¶20.] The North Dakota Supreme Court addressed a similar issue in City of Fargo v. Bommersbach, 511 N.W.2d 563 (N.D.1994). In that case, the defendant pleaded not guilty to driving a motor vehicle while his driver’s license was suspended. Id. at 564. The defendant’s license had been suspended as the result of a violation of N.D.C.C. § 39-08-01(1), driving with a blood alcohol level by weight of .10 or greater. Id. The trial court, without objection, sentenced the defendant to thirty days in jail with twenty-six days suspended, and the four remaining days to be served consecutively in accordance with N.D.C.C. § 39-06-42(2). Id. N.D.C.C. § 39-06-42(2) provided in relevant part: “[i]f the suspension or revocation was imposed for violation of section 39-08-01 [driving under the influence or with a blood alcohol weight in excess of .10] ..., the sentence must be at least four consecutive days’ imprisonment and such fine as the court deems proper.” Id.

[¶ 21.] On appeal, the defendant argued the circuit court committed reversible error when it failed to inform him of the mandatory minimum sentence he faced under N.D.C.C. § 39-06^42(2) prior to trial. Id. at 564-65. The defendant relied on authority from cases in which defendants were not afforded an opportunity to plead to an amended complaint, and authority that dealt with the use of prior convictions for offense-enhancing purposes. Id. (citing State v. Gahner, 413 N.W.2d 359 (N.D.1987); State v. Edinger, 331 N.W.2d 553 (N.D.1983); State v. Gustafson, 278 N.W.2d 358 (N.D.1978); State v. Ruble, 77 N.D. 79, 40 N.W.2d 794 (1950)). The North Dakota Supreme Court noted that there was no failure to allow the defendant fl> plead anew to a new or amended complaint at issue in Bom-mersbach, and therefore the holding in Gustafson, 278 N.W.2d 358, did not apply. Id. at 565. That court acknowledged that offense-enhancing (increasing the classification of the offense) and sentence-enhancing (increasing the maximum sentence) use of a prior conviction require notice to the defendant that the State intends to use prior convictions for enhancement purposes. Id. However, in Bommersbach that court held that N.D.C.C. § 39-06-42(2) “provides a minimum sentence for a particular type of driving-while-under-suspension conviction; it does not deal with offense-enhancing or sentence enhancing prior convictions.” Id. Finally, the North Dakota Supreme Court held that the North Dakota Rules of Criminal Procedure do not require specific notice of a mandatory minimum sentence upon a plea of not guilty. Id. at 565.

[¶ 22.] The language of Rule 11 of the Federal Rules of Criminal Procedure and NDR CrimP Rule 11(b) parallel South Dakota’s version, in that it requires the trial court to advise the defendant of the mandatory minimum penalty only upon a plea of guilty or nolo contendere. Miller concedes that his alleged due process right to be advised by the circuit court of the mandatory minimum penalty does not have as its source SDCL 23A-7-4. However, as support for his proposition that he had a constitutional right to an advisement of the mandatory minimum penalty, Miller cites to State v. Richards, 2002 SD 18, 640 N.W.2d 480, a case that deals exclusively with the statutory right under SDCL 23A-7-4(1) to an advisement of the mandatory minimum penalty upon a plea of guilty. Given that Miller has waived the statutory argument, Richards offers no support for his contention that he had a due process right under the constitution to an advisement of the mandatory minimum penalty upon a plea of not guilty. Even if Miller had not waived the statutory argument, the above discussion makes it abundantly clear there is no such constitutional right upon entering a plea of not guilty.

[¶ 23.] The only other case that Miller cites to in support of his claim of a violation of his due process rights is State v. Crawford, 128 Wash.App. 376, 115 P.3d 387. In Crawford the defendant pleaded not guilty to first-degree robbery and second-degree assault. 115 P.3d at 388-89. At the time of trial, Crawford was unknowingly facing a mandatory minimum sentence of life in prison without parole under Washington’s Persistent Offender Accountability Act. Id. at 389. However, neither the prosecutor nor defense counsel were aware that the sentence would be subject to a mandatory enhancement as neither realized at the time of prosecution that both of Crawford’s two previous convictions, one for first degree sex abuse in Kentucky and a Washington conviction for second degree robbery, would both count as “strikes” under Washington’s persistent offender enhancement scheme. Id.

[¶ 24.] The question before the Washington Court of Appeals was “whether a defendant receives due process if he or she is sentenced to a mandatory minimum term of life without parole without any notice, before or during trial, that such a sentence is even possible.” Id. at 390. As that court noted “it is fundamentally unfair for the State not to notify a person before trial that he may be subject to a mandatory sentence of life without parole.” Id. at 391. It therefore reversed the conviction on due process grounds, noting that procedurally the defendant was entitled to know that he faced such a harsh sentence prior to trial. Id. The underlying rationale for that court’s decision was that “the person needs to know that such a sentence is possible when deciding how intensively to investigate, when deciding how intensively to plea bargain, and when deciding whether trial or plea is the better alternative.” Id.

[¶25.] Crawford provides no support for Miller’s contention despite the fact that the defendant in that case pleaded not guilty and proceeded to trial. The issue before the Washington Court of Appeals was whether sentencing enhancement under a habitual criminal statutory scheme without notice that the defendant faced a minimum mandatory life sentence without parole was constitutional. 7dL

[¶ 26.] In the instant case, Miller was not facing the potential for a mandatory minimum life sentence without parole. Nor was Miller faced with such an enhancement to the sentence due to the State’s use of a prior conviction. Rather, Miller, like the defendant in Bommers-bach, was facing “a minimum sentence for a particular type of [violation of SDCL 22-22-7 for sexual contact with-a-victim-less-than-ten-years of age.]” (Bommersbach, 511 N.W.2d at 565). SDCL 22-22-7 and SDCL 22-22-1.2 do not provide offense or sentence enhancements based on prior convictions for a defendant facing his first conviction on a charge of sexual contact with a victim under the age of sixteen.

[¶ 27.] Miller’s argument under the due process clause must fail. Miller was prosecuted for sexual contact with a victim less than sixteen years of age. SDCL 22-22-7 gives clear notice that the offense is punishable as a Class 3 felony. SDCL 22-22-1.2 gives further notice that penalties for sexual contact with a person under the age of ten are more severe in nature. Miller cannot now cry foul and attempt an end run around the penalty for sexual contact with a victim under the age of ten by claiming the circuit court failed to advise him of the mandatory minimum penalty so clearly articulated in SDCL 22-22-1.2, especially when Miller had no constitutional right to such an advisement.

[¶ 28.] The circuit court erred when it held that Miller was entitled to such advisements upon a plea of not guilty and refused to impose the mandatory minimum sentence. However, given that Miller received an effective sentence of ten years, which is the same amount of prison time he would have received had the circuit court imposed two consecutive five-year mandatory mínimums, the error is harmless and as a consequence Miller suffered no prejudice. Because we hold that the defendant was not entitled by statute or by the Due Process Clause of the Constitution to an advisement of the mandatory minimum upon a plea of not guilty, we do not need to address Miller’s claim that the attorney-client privilege prohibited the circuit court from requiring testimony from his arraignment and trial counsel concerning the advisement. We affirm.

[¶ 29.] SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

[¶ 30.] ZINTER, Justice, concurs with a writing.

ZINTER, Justice

(concurring).

[¶31.] I generally concur. I would hold that because the circuit court expressly declined to apply the mandatory minimum sentence, Miller suffered no prejudice.

      . SDCL 22-22-1(1) provides in relevant part:
      "Rape is an act of sexual penetration accomplished with any person under any of the following circumstances: (1) If the victim is less than ten years of age[.] ... A violation of subdivision (1) of this section is rape in the first degree, which is a Class 1 felony.”

      . SDCL 22-22-7 provides in relevant part:
      "Any person, sixteen years of age or older, who knowingly engages in sexual contact with another person, other than that person's spouse if the other person is under the age of sixteen years is guilty of a Class 3 felony.”

      . Rule 11 provides in relevant part:
      Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:

      (B) the right to plead not guilty, or having already so pleaded, to persist in that plea;
      (C) the right to a jury trial;
      (D) the right to be represented by counsel— and if necessary have the court appoint counsel — at trial and at every other stage of the proceeding;
      (E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
      (F) the defendant's waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;
      (G) the nature of each charge to which the defendant is pleading;
      (H) any maximum possible penalty, including imprisonment, fine, and term of supervised release;
      (I) any mandatory minimum penalty[.]

      . North Dakota Rules of Criminal Procedure Rule 11(b) provides in relevant part:
      (b) Advice to defendant.
      (1) The court may not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(b)] in open court, informing the defendant of and determining that the defendant understands the following:
      (A) the right to plead not guilty, or having already so pleaded, to persist in that plea;
      (B) the right to a jury trial;
      (C) the right to be represented by counsel at trial and at every other stage of the proceeding and, if necessary, the right to have the court appoint counsel under Rule 44;
      (D) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
      (E) the defendant’s waiver of these trial rights if the court accepts a plea of guilty;
      (F) the nature of each charge to which the defendant is pleading;
      (G) any maximum possible penalty, including imprisonment, fine, and mandatory fee;
      (H) any mandatory minimum penalty [.] (emphasis added).

      . South Dakota's statutory scheme also provides that a defendant must be given notice, either at the time of or before arraignment, of the State’s intent to seek an enhanced penalty under the habitual offender statutory scheme in SDCL Chapter 22-7. Notice to the defendant is required per the provisions of SDCL 22-7-11. We have also held that the habitual offender act should be strictly construed in order to ensure that a defendant is fully aware prior to pleading to the principal felony, that he faces the possibility of an enhanced sentence. State v. Heftel, 513 N.W.2d 397, 402-03 (S.D.1994).


author: ZINTER, Justice.

text:
    2006 SD 55
    Jolene GRAJCZYK, Plaintiff and Appellant, v. John G. TASCA, Defendant and Appellee.
    No. 23638.
    Supreme Court of South Dakota.
    Argued on March 20, 2006.
    Decided June 21, 2006.

      Gregory P. Grajczyk of Boos and Grajc-zyk, Milbank, South Dakota, Attorneys for plaintiff and appellant.
    Chad C. Nelson, Milbank, South Dakota, Attorney for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Jolene Grajczyk filed an action to establish paternity and child support. The circuit court dismissed, reasoning that there was insufficient substitute service of process and a lack of personal jurisdiction (insufficient minimum contacts) to assert jurisdiction over John Tasca, a nonresident putative father. On appeal, Grajczyk contends that these defenses were waived or, in the alternative, that the service of process was sufficient and that there were sufficient minimum contacts to assert personal jurisdiction. We conclude that: (1) the service of process defense was not waived; (2) the substitute service of process was valid; and (3) the personal jurisdiction defense was waived because it was not raised in the first defensive pleading. Because Tasca was properly served and because the personal jurisdiction defense was waived, we hold that the circuit court had jurisdiction to determine paternity and child support.

Facts and Procedural History

[¶ 2.] Grajczyk and Tasca were both stationed in Mississippi while serving in the United States Air Force. They formed a relationship that resulted in the birth of J.G. on October 14, 1986. At the time of J.G.’s birth, Grajczyk was a resident of Texas, and Tasca was a resident of Florida. After moving numerous times, Grajczyk and J.G. established residency in South Dakota, where they have lived the past eight years. Tasca established residency in Indiana, where he has lived for at least eight years.

[¶ 3.] In February 1986, soon after Grajczyk discovered she was pregnant, she informed Tasca that he was the father. However, seven months later, she told Tasca that he was not the father. It was not until the fall of 1999, or spring of 2000, that Grajczyk again informed Tasca that he was J.G.’s father.

[¶ 4.] After a subsequent paternity test indicated that Tasca was the father, J.G. and Tasca began to form a relationship. They communicated over the telephone at least once a month, and on one occasion, Tasca sent money to South Dakota for J.G. to purchase an airplane ticket to visit him in Indiana. Tasca, however, has never been physically present in or had any other contact with South Dakota.

[¶ 5.] While J.G. and Tasca were forming a relationship, Grajczyk and Tasca began informal negotiations regarding past child support. In addition to these negotiations, Grajczyk filed a petition to establish paternity, child custody, and child support on July 15, 2004. Grajczyk provided the summons and complaint to the sheriff of Bartholomew County, Indiana, for service on Tasca. The deputy sheriff that served the summons and complaint indicated on the sheriffs return that the documents were “Left with girlfriend.” The complaint was subsequently filed with the Grant County Clerk of Courts.

[¶ 6.] Tasca initially retained attorney William Gerdes to defend. Gerdes filed a notice of appearance of counsel on October 21, 2004, and informally requested an extension of time to file an answer. Thereafter, the negotiations for back child support continued. But, on December 1, 2004, Tasca retained new counsel, Chad Nelson. On December 8, Nelson filed Tasca’s first defensive pleading: an answer alleging, among other things, the 12(b)(4) defense that the court was “without jurisdiction to hear this matter because there has been no service of summons upon the Defendant.” The answer did not raise the 12(b)(2) defense that the court lacked personal jurisdiction over Tasca. However, the next day, December 9, Nelson filed a motion to dismiss. This second defensive pleading generally alleged a “lack of jurisdiction” but did not identify the alleged defect. Following a hearing on the issues raised by both pleadings, Grajczyk requested to provide a more complete sheriffs return. After considering additional evidence concerning substitute service on Tasca, the circuit court dismissed the action. The circuit court concluded that the substitute service of process was invalid and that Tasca had insufficient minimum contacts with this state to assert personal jurisdiction.

[¶ 7.] On appeal, Grajczyk raises the following issues:

1) Whether Tasca waived the 12(b)(2) and 12(b)(4) defenses of lack of personal jurisdiction and insufficient substitute service of process:
a)Because Tasca’s attorney “appeared” in the action by filing a notice of appearance of counsel, informally requesting a continuance, and engaging in preliminary discovery without raising these defenses;
b) Because Tasca’s first defensive pleading was an answer that only raised the failure to serve the summons; and
c) Because Tasca’s second defensive pleading was a motion to dismiss that only alleged a “lack of jurisdiction” without further specification;
2) If the 12(b) defenses were not waived:
a) Whether the substitute service of process was sufficient; and
b) Whether there were sufficient minimum contacts for the circuit court to assert personal jurisdiction over Tas-ca.

Standard of Review

[¶ 8.] This appeal raises jurisdictional issues. We review issues regarding a court’s jurisdiction as questions of law under the de novo standard of review. State ex rel. LeCompte v. Keckler, 2001 SD 68, ¶ 6, 628 N.W.2d 749, 752 (citations omitted).

Analysis and Decision

1) Waiver of Personal Defenses

[¶ 9.] Personal jurisdiction and insufficient service of process are defenses that may be waived. SDCL 15 — 6—12(h)(1) provides that the defenses are waived if they are not included in a motion under the circumstances provided in SDCL 15-6-12(g) or in a responsive pleading (in this case, the answer). If the defenses are raised by motion, SDCL 15 — 6—12(g) requires that they be consolidated. The effect of these statutes is that objections to personal jurisdiction and “insufficiency of service of process are waived unless the objections are raised in the answer or by ... motion before the filing of a responsive pleading.” Photolab Corp. v. Simplex Specialty Co., 806 F.2d 807, 810 (8thCir.1986) (citation omitted). Stated in other words, “[i]f [a defendant] wishes to raise any of these defenses, that must be done at the time the first significant defensive move is made — whether it be by way of a Rule 12 motion or a responsive pleading.” 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1391, at 515 (3d ed 2004).

Waiver by Appearance

[¶ 10.] Grajczyk argues that Tasca waived the right to assert either defense because his first attorney filed a notice of appearance of counsel, informally requested an extension of time to answer, and performed some informal discovery without raising the defenses. Grajczyk relies on SDCL 25-9B-201(2), a provision in the Uniform Interstate Family Support Act, which allows this state to assert jurisdiction over a nonresident in child support matters if “[t]he individual submits to the jurisdiction ... by entering a general appearance.” (Emphasis added.) Grajczyk contends that these activities by Tasca’s first attorney constituted a general appearance by Tasca. We disagree.

[¶ 11.] With respect to the notice of appearance of counsel, we preliminarily note that the notice was not a motion or responsive pleading within the meaning of SDCL 15 — 6—12(h)(1). Therefore, the failure to raise these 12(b) defenses in the attorney’s notice of appearance does not subject a party to the peril of a SDCL 15-6-12(g) and SDCL 15-6-12(h)(l) waiver.

[¶ 12.] Furthermore, in determining whether an appearance is a general appearance, “the test is the relief asked ... and ... the real question is whether there is a submission to the power of the court or an active invocation of its power on nonjurisdictional matters.” Union Bond & Mortgage Co. v. Brown, 64 S.D. 600, 609-10, 269 N.W. 474, 479 (1936) (quoting Robinson v. Glover, 60 S.D. 270, 244 N.W. 322, 323 (1932)). Here, Gerdes’ notice of appearance of counsel did not invoke the court’s powers or submit Tasca to the jurisdiction of the court. It only-provided notice that Gerdes was appearing to represent Tasca. As the Florida Supreme Court explained:

There is no basis in the rules and no reason in policy for a determination that the mere filing of an entirely neutral and innocuous piece of paper [a notice of appearance of counsel], which indicates no acknowledgment of the court’s authority, contains no request for the assistance of its process, and, most important, reflects no submission to its jurisdiction should nevertheless be given just that effect. Such a conclusion represents, we think, no less than the apotheosis of a meaningless technicality. It cannot be accepted in a judicial era which requires that, as far as is consistent with orderly procedure, the rights of parties be decided on the merits of their positions.

Public Gas Co. v. Weatherhead Co., 409 So.2d 1026, 1027 (Fla.1982) (citation omitted). Thus, Gerdes’ notice of appearance of counsel was not a general appearance that waived Tasca’s 12(b) defenses.

[¶ 13.] Similarly, counsel’s informal request for an extension of time to answer and the performance of informal discovery reflect no submission to the court’s jurisdiction. On the contrary, it is only through an extension of time to answer and preliminary discovery that counsel can evaluate whether 12(b) defenses are even available. Cf. Crouch v. Friedman, 51 Wash.App. 731, 735, 754 P.2d 1299, 1301 (1988) (“[T]he fact that [defendant] proceeded with discovery does not preclude him from asserting that service of process was insufficient because it is by way of discovery that a party determines whether a particular defense is available.”). We finally note that, like notice of appearance of counsel, these other preliminary activities by counsel cannot constitute a waiver of a party’s personal jurisdiction defenses under SDCL 15-6-12(g) and SDCL 15-6-12(h)(1) because they do not involve the filing of a motion or responsive pleading. See supra n. 8.

[¶ 14.] Consequently, we affirm the circuit court’s ruling that Tasca did not waive his service of process and personal jurisdiction defenses when he filed a notice of appearance of counsel, informally requested an extension of time to answer, and engaged in informal discovery.

Waiver of Defenses Not Raised in the First Defensive Pleading

[¶ 15.] Grajczyk argues that Tas-ca waived both defenses when he filed his answer. Grajczyk acknowledges Tasca’s answer raised the 12(b)(4) defense of insufficient service of the summons, but Grajczyk contends that this objection to “service” of the summons was insufficient because it did not specifically assert that the objection was to the “substitute” service of the summons and complaint on Tasca’s girlfriend.

[¶ 16.] Grajczyk correctly points out that generally “[t]he objection must be specific and must point out in what manner the plaintiff has failed to satisfy the requirements of the service provision utilized.” Photolab Corp., 806 F.2d at 810 (citation omitted). In this case, however, Tasca’s answer specifically alleged that the service of process was insufficient because he was not served. Although the objection did not specifically use the phrase “substitute service,” we believe that Tasca’s objection to “no service” was enough to preserve an objection to the sufficiency of the substitute service.

[¶ 17.] Grajczyk also contends that Tasca’s 12(b)(2) personal jurisdiction defense was waived because it was not raised in the answer. Tasca points out that service alone is not all that is necessary to establish jurisdiction over a nonresident. Rather, jurisdiction must, among other things, comply with federal due process requirements; i.e., the defendant must “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” See Frankenfeld v. Crompton Corp., 2005 SD 55, ¶¶ 9-10, 697 N.W.2d 878, 381-82 (citations omitted).

[¶ 18.] In order to preserve this personal jurisdiction defense, Tasca had to raise it in his first significant defensive move, either by answer or motion. SDCL 15-6-12(g) & (h)(1); 5C Wright & Miller, Federal Practice and Procedure § 1391. In this case, Tasca’s first defensive move was his answer. But, that answer only raised the 12(b)(4) sufficiency of service defense. The answer did not assert the 12(b)(2) defense of lack of personal jurisdiction due to Tasca’s insufficient minimum contacts with this state.

[¶ 19.] In an analogous Eighth Circuit case, a defendant’s first significant defensive move was an answer that alleged a lack of personal jurisdiction. Photolab Corp., 806 F.2d at 809. The second defensive move was a motion to dismiss, which for the first time alleged insufficient service of process. Id. The court was required to determine whether the defendant’s failure to raise both defenses in the first defensive move (the answer) precluded him from raising the omitted defense in the subsequent motion to dismiss. The court noted that Rules “12(g) and (h) provide that objections to insufficiency of process or insufficiency of service of process are waived unless the objections are raised in the answer or by motion before the filing of a responsive pleading.” Id. at 810 (citing Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1298 (5thCir.1985)). The court concluded that the defendant waived the omitted defense by not raising it in the answer, the defendant’s first defensive pleading. Id. at 811.

[¶ 20.] Although the included and omitted defenses are reversed in this case, the Eighth Circuit’s holding is applicable to Tasca’s failure to raise the personal jurisdiction defense in his answer. Because Tasca failed to raise this defense involving minimum contacts in that pleading, he waived his personal jurisdiction defense under Rules 12(g) and (h). Thus, we reverse the circuit court on this issue.

2) Sufficiency of Service of Process

[¶ 21.] Having failed to preserve his objection to personal jurisdiction, but having preserved his objection to the sufficiency of service of process, we now consider whether the circuit court erred in concluding that the substitute service was insufficient. On this issue, it is significant that the circuit court did not affirmatively find that substitute service was invalid. Rather, the court indicated that there was not enough evidence to determine whether the service of process complied with the statutory requirements. This requires us to initially determine which party bore the burden of proof on this issue.

[¶ 22.] “The great weight of the case law is to the effect that the party on whose behalf service has been made has the burden of establishing its validity.” 5B Wright & Miller, Federal Practice and Procedure § 1353, at 342. However, this initial burden only requires that the party establish a prima facie case: when a defendant moves to dismiss for insufficient service of process, the burden is on the plaintiff to establish a prima facie case that the service was proper. Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8thCir.1995) (citing Dakota Indus, v. Dakota Sportswear, 946 F.2d 1384, 1387 (8thCir.1991); FDIC v. Oaklawn Apartments, 959 F.2d 170, 174 (10thCir.1992)). The circuit court’s determination that plaintiff failed to present a prima facie case of sufficient service is reviewed de novo. Id. (citing Gould v. P.T. Krakatau Steel, 957 F.2d 573, 575 (8thCir.1992), cert. denied, 506 U.S. 908, 113 S.Ct. 304, 121 L.Ed.2d 227 (1992)).

[¶ 23.] The statute governing the requirements for substitute service upon a member of a family with whom the defendant resides states, in pertinent part:

If the defendant cannot be found conveniently, service may be made by leaving a copy at his dwelling house in the presence of a member of his family over the age of fourteen years or if the defendant resides in the family of another, with a member of such age of the family with which he resides.

SDCL 15-6^f(e) (emphasis added). If such service is performed by a sheriff, the time, place, and manner must be shown in the sheriffs return. SDCL 15-6-4(g).

[¶ 24.] In this case, the sheriffs return indicates that the summons and complaint were served at 8:19 a.m. on September 17, 2004. The return further indicates that the service was made at the “Res.” Finally, the return indicates that substitute service was made in the following manner: it was “Left with girlfriend,” and the person served was the “Girlfriend of Tasca.”

[¶ 25.] Tasca argues that this return of service did not establish sufficient substitute service. The circuit court agreed, stating:

There is not enough evidence for the Court to determine who the Sheriff served — there was no name, description, or age of the individual served nor even that the individual lived at the residence where the alleged service took place. The Court cannot conclude from the evidence before it that substitute] service was made as required by statute.

The circuit court also noted that the deputy sheriff did not know who he served.

[¶ 26.] However, as previously noted, Grajezyk was only required to make an initial showing of a prima facie case of proper service. In establishing that prima facie case, the sheriffs return did contain bare-bones evidence of the time, place, and manner of service. Furthermore, Graje-zyk not only relied upon the sheriffs return but also upon sworn testimony that supplied significant, additional details. For example, Grajezyk identified the family, including the “girlfriend.” Grajezyk testified that Tasca resided with his girlfriend (Stephanie Burch) and her two children. Grajezyk further testified that Tas-ca had lived there for approximately seven years. J.G. corroborated Grajczyk’s testimony. J.G. testified that he had visited Tasca four times in Indiana, the last two times being the summer of 2004 and December 2004, both before and after service. He indicated that on both occasions his father was living with Stephanie Burch and her two children. J.G. finally corroborated that Burch was Tasca’s girlfriend.

[¶ 27.] Therefore, even if the sheriffs return alone may have been insufficient, it should have been considered together with the testimony of Grajezyk and J.G. Considering all the evidence, Grajezyk established a prima facie case that substitute service was.made on Tasca by leaving a copy of the summons and complaint with his girlfriend: an adult member of the family with whom Tasca was residing. Moreover, Tasca presented no evidence rebutting any aspect of Grajczyk’s prima facie case. Therefore, Grajczyk’s prima facie showing stood unrefuted and, thus, was sufficient to establish valid substitute service.

[¶ 28.] In summary, Tasca waived his personal jurisdiction defense by failing to raise it in his .first significant defensive pleading. Although Tasca did preserve his insufficient service of process defense by raising it in his answer, the substitute service was valid. For these reasons, we need not address issues (l)(c) and (2)(b).

[¶ 29.] Affirmed in part, reversed in part and remanded for trial.

[¶ 30.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . J.G. was conceived in Mississippi and born in Texas. Grajczyk and Tasca never married.

      . The relevant statute of limitations for paternity and child support actions requires the commencement of the action before the child's eighteenth birthday.
      Proceedings to establish paternity and enforce the obligation of the father may be brought at any time before the eighteenth birthday of the child.
      SDCL 25-8-9.

      .For reasons not disclosed, the summons was not filed with the complaint. The record reflects that there was a question regarding the initial failure to file the summons. However, on December 9, after a discussion between counsel, Grajczyk located the summons and filed it. Therefore, that initial failure to file the summons is not an issue in this appeal.

      . SDCL 15 — 6—12(b) provides, in pertinent part:
      Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
      (1) Lack of jurisdiction over the subject matter;
      (2) Lack of jurisdiction over the person;
      (3) Insufficiency of process;
      (4) Insufficiency of service of process;
      (5) Failure to state a claim upon which relief can be granted;
      (6) Failure to join a party under § 15-6-19.

      . Tasca’s motion to dismiss stated, in full:
      COMES NOW the Defendant, who appears specially, and moves the Court to dismiss this matter for lack of jurisdiction.
      Dated this 9th day of December, 2004.

      . SDCL 15 — 6—12(h)(1) provides:
      A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in § 15-6-12(g), or (B) if it is neither made by motion under § 15-6-12 nor included in a responsive pleading or an amendment thereof permitted by § 15 — 6— 15(a) to be made as a matter of course.

      . SDCL 15-6-12(g) provides:
      A party who makes a motion under § 15 — 6— 12 may join with it any other motions herein provided for and then available to him. If a party makes a motion under § 15-6-12 but omits therefrom any defense or objection then available to him which § 15-6-12 permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision 15-6-12(h)(2) on any of the grounds there stated.

      .The notice of appearance of counsel was not a motion because it sought no relief from the court. Furthermore, it was not a responsive pleading. SDCL 15-6-7(a) identifies the pleadings recognized by the Rules of Civil Procedure:
      There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of § 15-6-14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
      (Emphasis added.)

      . The notice merely provided:
      TO PLAINTIFF JOLENE L. GRAJCZYK AND HER ATTORNEY GREGORY P. GRAJC-ZYK:
      Please take notice that William D. Gerdes appears in this matter on behalf of Defendant John G. Tasca.
      Dated October 20, 2004

      . The answer provided:
      COMES NOW the Defendant, who appears specially to contest the jurisdiction of this court as follows:

      1. The Court is without jurisdiction to hear this matter because there has been no service of a summons upon the Defendant.
      2. Without waiving jurisdiction, Defendant denies the Petition in its entirety.
      3. Plaintiff's Petition fails to state a cause of action upon which relief can be granted. WHEREFORE, Defendant prays this Court dismiss this matter due to lack of jurisdiction and that it, alternatively, deny Plaintiff’s Petition in its entirety, and for such other and further relief as to the Court may seem just and proper in the premises.
      (Emphasis added.)

      . SDCL 15-6-4(f) provides:
      Whenever a statute of this state provides for the service of a legal process upon a party not a resident of or found within the state, service shall be made under the circumstances and in the manner prescribed by the statute.

      . The attorney's transmittal letter to the Bartholomew County Police Department indicated that Tasca’s residence was 3222 Rolling Knoll Ln, Columbus, IN 47201.