*1 trust,” creating the court is purpose poses Because trust been fulfilled. fulfilled, au- to terminate the trust been remand has directed property trust termination the trust. and Cath- thorizes distribute erine, “in accordance which is with further of the trust is Termination [¶24.] probable intention.” See trustor’s peti- “On under SDCL 55-3-26. warranted 55-3-26. beneficiary, the court by a tion trustee if, ... the trust because terminate We and remand. reverse [¶27.] anticipated by the trus- circumstances

tor, trust ... termination of the would GILBERTSON, Justice, Chief and [¶28.] purposes substantially further the trustor’s SEVERSON, Justices, ZINTER creating Upon the trust. termination BERN, Judge, concur. Circuit Court section, prop- the trust a trust under BERN, Judge, Circuit Court in accordance erty shall distributed KERN, Justice, sitting disqualified. probable intention.” Id. trustor’s Here, beneficiary has Catherine Justice, JENSEN, having trust be- of the petitioned termination been a member of the Court time sub- termination trust would cause action was submitted stantially purpose trustor’s further the participate. share until Catherine preserve Catherine’s located, and has been could be Catherine view, trustor In Catherine’s

located. trus- anticipated that the have trust. We not terminate the

tees would

agree. all six Mary treat desired S.D. 75 no in- equally, and she children indicated of Cimeron Grant Matter any par- gifting her tent condition ERICKSON, Petitioner and ability manage ticular child’s Appellee, interest, the her finances. To further that preserve the trust trustor created until Catherine could Catherine’s share SAFETY, DEPARTMENT OF PUBLIC locat- Although located. Catherine was Respondent Appellant. in 2014 for termination petitioned ed receipt the trust of her share behalf, her gifting mother’s made Supreme Court South Dakota. re-

it is now and the trustees ON CONSIDERED BRIEFS Mary’s to honor intentions and fused ON MAY 2017 creating Under trust. wishes circumstances, not have the trustor could FILED OPINION 11/15/2017 lo- anticipated upon Catherine

cated, receive Catherine would not her gifting.

equal share of the substantial purpose the trust has

[¶26.] Because 55-3-23(2), fulfilled, see SDCL termination the trust would

“substantially pur- further trustor’s *2 JOHNSON, Falls, L.

RICHARD Sioux Dakota, Attorney petitioner South for appellee. HOWELL, E. Special JENNA Assistant n General,

Attorney South Dakota Pierre, Safety, Public Dako- South ta, for Attorneys respondent appel- lant.

GILBERTSON, Chief Justice Erickson, [¶1.]Cimeron Grant holds who license, commercial driver’s operating a vehicle while his content blood was percent 0.08 South Dakota Department more. The Safety subsequently disqualified Public him operating commercial motor ve- hicles Erickson appealed Department’s decision to the circuit which reversed the remanding. Department ap- without peals. reverse the circuit court’s deci- We sion. History and Procedural

Facts July [¶2.] On Erickson motorcycle arrested Novem- under the influence alcohol. On pleaded guilty ber Erickson vehicle while .his blood more, content was in viola- 32-23-1(1). tion of At hearing sentencing Mag- December on. D. Judge Alan suspended istrate Dietrich imposition placed Er- sentence and probation ickson on of three successfully completed years. 2, 2015, Magis- probation, January discharged Erickson trate Dietrich sealing signed an order his criminal rec- ord;- -1(2) arrest, he Prior to concluded that Dakota, set that SDCL

worked driver in South distinct as truck forth crimes Iowa, Minnesota, Dakota, Nebraska, contemplates North convic- *3 32-23-1(1). Thus, He Wyoming. obtained his be- commercial tions under SDCL in South 2003. driving license Dakota to pleaded in a guilty cause Erickson 2015, 13, January Department noti- On the vehicle with a of blood alcohol content plea, fied Erickson that his more, percent or the court concluded operating him disqualifying from a 32-12A~36(l)’s disqualification did year one commercial motor for pur- vehicle not to Erickson apply reversed. January suant 32-12A-36. On Department raising appeals, The [¶5.] hearing. requested Erickson a Administra- following pleading the issue: Whether (ALJ) Darling Judge a Ryan tive Law held guilty driving con- with a blood alcohol hearing parties telephonic the with percent, in tent violation of 0.08 more During hearing, March the parties 17. 32-23-1(1) is a for conviction driv- to the offense for which referred Erickson ing while under the influence of alcohol pleaded a guilty as “DWI.” June On. within the SDCL 32-12A- meaning of findings of Darling proposed ALJ issued 36a).1 law, fact, an conclusions order rec- Standard Review disqualified Erickson ommending from The in this central commercial driver’s for a license statutory question case is a construc following day, Depart- tion, we novo. review de which State Schrank, director, program Jane ment’s Underwood, adopting final decision ALJ a Dar- issued no give 241. We deference to ling’s recommendation. legal circuit court’s conclusions. Id. appealed Erickson Depart- ment’s to circuit court. Analysis and Decision record, before ALJ determined Department argues Darling the complete neither included -the by considering court erred circuit' transcript criminal file nor question guilty driving Dietrich, hearing Magistrate plea con motor vehicle with a blood alcohol According sheet docket of 0.08 or more tent conviction pleaded file Erickson guilty stated that driving the influence of under alcohol.” “driving influence under within SDCL 32-12A- However, reviewing audio after record- states, 36(1), in part: which ing hearing, court conclud- plea driving a Any person is disqualified ed Erickson motor commercial vehicle percent or content of 0.08 a blood alcohol ' one year: less than 32-23-1(1)—not under (1) a,first If under the influence convicted 32-23-1(2). physical in actual The circuit 'court under SDCL brief, In notice of in Erickson’s sealed also facts contained its initial ar- brief, gued ;reply file,. the circuit erred consider- criminal its question judicial-notice in in the ment omitted issues raised Regardless, proceedings, its issues. our in erred statement ruling responsibility scope decision on the had a file, remaining or moots the issues this complete obtain criminal resolves taking judicial that the erred of a noncom- control commercial trative this chapter record case. SDCL while, motor phrase vehicle 1-26 does irregulari mercial not define alcohol, procedure, the influence ties in phrase parallels this but. drug or trolled in viola- in the language proce found rules of civil § tion of 32-23-1 .... dure that grounds set out granting (“[I]n Compare. new trial. SDCL 1-26-35 acknowledges in briefs to irregularities cases of alleged in procedure acknowledged circuit court as the agency, shown the rec decision, that he raise ord, proof thereon taken proceedings. Normal- *4 court.”), (“A 15-6-59(a)(l) with SDCL new ly, a appellate circuit court’s is review trial may granted [irregu be for ... ... to the confined record. larity in proceedings of the court However, SDCL 1-26-35. because the cir- ..,.”). phrase This generally to “relates 32-23-1(1) cuit court concluded SDCL departures [tribunal], during -1(2) separate offenses, state case, trial of from the orderly due the absence of plea concluded method of disposition a- Webb v. case.” procedural was a irregularity under SDCL of Webb, ¶41, 13, N.W.2d 818, 814 1-26-352 as as an error of well law under added) (emphasis (quoting Fechner v. Thus, motion, SDCL 1-26-36.3 own Case, 37, 12, N.W.2d question. court considered this 635). (i.e., alleged.error here at [¶8.] The circuit court’s reliance' on 32-12A-36(l)) scope is SDCL simply SDCL and -36 is misplaced. 1-26-35 Un- law; it question of does not relate to the 1-26-35, SDCL der circuit court’s re- of disposition method of the case. There view “shall be confined record.” As error, fore, the alleged procedural, rule, exception an may is inapplicable. 1-26-35 SDCL augmént pre- the administrative record if procedure sented “in irregularity 'alleged Even if the error agency, before the not shown rec- in the procedural,, be could considered circuit contrast, ord[.]” SDCL 1-26-35. SDCL court’s- that SDCL 32-12A- conclusion 1-26-36 merely states the standards 36(1) apply to does not a conviction under applicable ap- review 32-23-1(1) is SDCL incorrect. As indicated statute, peals. reviewing .that Under above, 32-12A-36(l) re generally SDCL affirm, reverse, may modify fers to violations SDCL 32-23-1.- Nota decision of administrative tribunal. specifi bly, SDCL does SDCL 1-26-36 does not' mention—let cally or any refer to SDCL alone authorize—augmenting the adminis- other subdivision of More SDCL 32-23-1. Therefore, trative record on over, the text of SDCL is an augment court’s the adminis- amalgamation SDCL subdivisions justified, trative record if above, As noted SDCL 32- 32-23-1. under all, under SDCL 1-26-35. 12A-36(1), disqualification results from a 1-26-35 conviction [¶9.] SDCL did not a “motor vehicle authorize alcohol, augment court to under the influence adminis states, states, part: part: 2. SDCL "The cases SDCL 1-26-36 in "[I]n may modify alleged if irregularities procedure reverse or decision substan- before the record, rights appellant preju- tial proof agency, not shown in the there- findings, in- diced the administrative , taken the court.” ferences, conclusions, or' are decisions ... ” error of [a]ffected other law .... all violations SDCL 32-23-1. templates controlled Therefore, Yet, a mo- multiple § subdivisions 32-23-l[.]” tor with a alcohol content drugs vehicle blood address of SDCL 32-23-1 Thus, conviction 32-12A- and substances.4 36(1) referring with- cannot be read as influence 32-12A-36(l), 32-23-1. In specific subdivision 32-12A-36(l)’s stead, Department properly disqualified and the reference to just a commercial driv- 32-23-1 is that—a to Erickson reference er’s license the entire statute.5 contrary conclusion was erroneous. Conclusion We reverse. alleged error adminis- [1Í11.] SEVERSON, procedural. ZINTER and proceedings trative Justices, was, if concur. eon- Even *5 284, ("When 32-23-1(2) ¶ marijuana 602 287 SDCL and N.W.2d 4. addresses law, drug "any question or substance ob- is a the decisions of the controlled agency prescription[.]” pursuant to valid and tained 32-23-1(3) reviewable.”); "any fully addresses controlled N. Co. v. SDCL are States Power Revenue, 57, 4,¶ drug pursuant Dep’t or substance to a obtained 1998 S.D. 578 S.D. ("Decisions any prescription, other to valid 580 administra N.W.2d degree person incapable agencies statutory which renders the tive courts on and circuit 32-23-1(5) safely driving[.]” reviewable.”). And fully are construction inhaled, ingested, “any addresses substance appropriate ques- review It is also such body” or otherwise taken into the for the foreclosing Our of issues tion. rules review becoming purpose intoxicated. remain- only prudential below rules not raised are in- subdivision addresses "the combined designed practice appellate are to ensure that beverage any fluence of an and or alcoholic issues, litigation, play in to narrow and fair pursu- or substance obtained generate advocacy possible best prescription, any ant to a valid other sub- deciding a new of law. But none stance, degree person which renders the against deciding those considerations militate incapable safely driving[.]” SDCL 32-23- 32-12A-36(l) applicability here. of SDCL 1(4). court, was raised the circuit That issue fully fairly litigated in the and writing argues was special that Erickson did upon it became basis which the preserve question appeal this and that erroneously Department’s reversed the deci- legal our review of the conclu only we Regardless governing sion. of whether review sions “our ad undermines statutes ruling, (i.e., procedural special the court’s as the appeals” ministrative so, ¶ -36). writing proposes, or whether we address 18. Even we Infra merits, ruling legal authority question review determi- because the court's dispute no same. There is that application was nation 32-23-1(1) ruling legal pleaded guilty to SDCL basis for the circuit court’s 0,08 brought (driving having percent against party See or more that blood). ("On by affirming judg appeal from alcohol in one’s And SDCL 15-26A-7 authority disqualify Erickson Supreme review Court license, order, holding ruling, a commercial driver’s or determination the trial from ....”); holding Corp. Dep’t au- court nue, v. S.D. Reve we are Puetz ¶ 13, Department disqualify Erick- 636 thorized the however, ("When, li- question the issue is a son a commercial driver’s law, guilty 32- of both because he to SDCL we review the decisions the ad cense 23-1(1). hand, only agency if the circuit de On the other we address ministrative added) ruling, erro- (emphasis (quoting procedural the court’s novo." v. the court’s Burke 17, 8,¶ application County, decision on Butte N.W.2d neous S.D. 473, 477)); Vallery, will be to stand. County read Butte WILBUR, Justice, Retired The court then' expanded record KERN, Justice, concur result. not properly decided issues it. On appeal, Department asks Justice, JENSEN, not having this Court to examine whether the circuit a member of the Court the time court erred when it relied SDCL 1-26- this action submitted 35 and -36. Having question resolved that participate. affirmative, remaining issue appeal is whether the circuit court WILBUR, (concurring Retired Justice. erred when it reversed final decision of result). Department. issue, To decide we agree I “the [1116.] need not address whether 32-12A- properly disqualified Erickson from hold- 36(1) contemplates violations of SDCL 32- ing a commercial license for one 23-1(1). To otherwise analyze conclude Swpra specially 11. I year.” write be- the issue specifically thé we examine cause should not address, the circuit asked with a blood which we have now that the court said had alcohol content of more in address, no authority to in effect tells liti- convic- gants that prudential appellate our rules of tion for while under the influence (and practice governing statutes adminis- within the of SDCL 32- trative appeals) ignored. can be The rules 12A-36(1). ignored long can be so as the circuit *6 improperly raising court—after It that undisputed is sponte expanding sua the record— argued to only the administrative law gives litigants a fair opportunity full and had judge that he received sus- properly address the issue not before pended imposition sentence and the Yes, case, court. on ap- result action, sealed the record peal ends favor the appealing party. apply. did not The But what about a future case? Should driving litigants rely oh our able statutes with blood content governing appeals administrative and our or in violation well-established standards review? implicates because, disagrees circuit sent an The majority [1119.] arise until the email view, parties indicating declaring intent to its But in its sua issue is moot. moot, response majority raise new sponte issues. the issue relies email, ruling that Department respectfully court’s contem all plates circuit court to confine its deci- violations of SDCL 32-23-1. This asked (and If puts the record the court the cart the horse. “[t]he sion judge) that before the administrative law reliance ¶ 8, supra see parties. misplaced,” issues -36 is raised then govern- cited to we need rec the statutes examine issues and agency before the appeals and cases ord agency the standard erred. review. decide anew whether (cid:127) however, by any This we presumption declined the re- do “unaided citing that quest, SDCL 1-26-35 and -36 as the circuit court’s decision was cor Comm’n, Foley v. S.D. Real Estate support expanding record and rect.” sidering parties. issues not raised Taylor, Here, admin- Michael Plaintiffs and Karen record from Appellants, proceedings

istrative reveals that Erickson influ- pleaded guilty 32- violation ence Dakota, STATE Defendant of South 23-1, imposi- suspended he that received Appellee. sentence, had tion of of the admin- the record sealed action. judge istrative law held the. Supreme Court South Dakota. suspended driv- properly 32-12A-36(l). ing privileges under SDCL ARGUED ON JANUARY provides: person “Any That dis- statute FILED OPINION 11/21/2017 motor a commercial qualified of not vehicle for less than

year .. aof first [i]f convicted violation control physical in actual motor noncommercial commercial alco-

vehicle while under the influence of hol, Id, Nothing §of 32—23—1[.]” plain language indicates statute excludes sealed convictions or a

suspended imposition aof sentence after

conviction. Because Erickson was convict- 32-23-1, violating

ed admin- judge correctly

istrative law held that disqualify

commercial license/coramercial *7 privileges of one conclusion .erroneous,

trary decision re-

versing final

ment must be reversed. KERN, Justice, joins this

concurrence result. Marilyn LONG,

Mark and Arnie Voorst,

Shirley Tim and Sara Van Timothy

Doyle, Griffith Jane