MORGAN, Justice.
This decision is the final phase of an administrative appeal from a decision of the Human Rights Commission (Commission) dismissing a complaint filed by Laura Sedlacek (Sedlacek) against the South Dakota Teener Baseball Program (Teener),1 charging Teener with sexual discrimination in public accommodations in the conduct of the annual Teener Baseball tournament, wherein girls are ineligible to participate. Commission dismissed the complaint on the grounds that SDCL 20-13-22.1(2) exempted Teener from the provisions of the Human Rights Act, SDCL ch. 20-13. On appeal, the circuit court decided that the statutory exemption 2 was an unconstitutional deprivation of equal protection under the provisions of both the South Dakota and the United States Constitutions and directed that Sedlacek be permitted to play on any team for which she was otherwise qualified. Teener and Commission appeal. We reverse.
A brief factual background regarding Sedlacek’s activities is necessary. At the time of the filing of the complaint in May, 1987, Sedlacek was a fifteen-year-old female who resided with her family in Edge-mont, South Dakota. In 1986, for some reason not explained in the record, she began playing baseball for the team in Provo, some eight miles distant, rather than the Edgemont team. She played in the 1986 Teener Tournament under protection of a temporary restraining order. Her complaint was filed when she was told again, in April 1987, that she could not play on the Provo team because she was a girl.
Sedlacek appealed the dismissal of her complaint to the Circuit Court for the Seventh Judicial Circuit, Fall River County. The Circuit Court determined that the statutory exception applicable to Teener is unconstitutional under both state and federal constitutions on equal protection grounds alone. Sedlacek raised other constitutional arguments, but the trial court chose to base its decision on equal protection grounds.
The trial court, applying the reasonable basis test, was “unable to discern any reasonable basis for allowing veteran sponsored sports activities to discriminate against girls, while prohibiting the same type of conduct by other organizations.” The trial court further determined that “[t]here is no reason to treat the two groups differently and a statute that does so is necessarily unreasonable and arbitrary.”
Based on the findings of fact and conclusions of law, the trial court entered judgment reversing the decision of the Commission, declaring SDCL 20-13-22.1(2) unconstitutional, and directed that Sedlacek be allowed to compete on any Teener baseball team for which she otherwise qualifies.
On appeal, Commission and Teener raised three issues:
1. Whether the trial court erred in holding SDCL 20-13-22.1(2) unconstitutional.
[868]*8682. Whether the trial court erred in not remanding the case to Commission.
3. Whether Sedlacek has standing to file a charge of discrimination (Teen-er alone).
Sedlacek, by notice of review, also raises the issue whether SDCL 20-13-22.1(2) violates South Dakota’s prohibition against special legislation (Art. Ill, § 23(9)). None of the parties have raised any issue as to whether the Teener program constitutes a public accommodation, so we leave that question for another day when it is briefed and argued.
We first address the standing issue. Teener argues that since Sedlacek played in the 1986 tournament, and since she was probably precluded from playing in the 1987 tournament because Edgemont did not have sufficient players to field a team, she sustained no injury. In our opinion, this is. a non-issue. Sedlacek had to obtain a court order to participate in the 1986 tournament. Teener failed to develop the record on whether she could or did play in the 1987 tournament so we deem that issue abandoned.
Nor are we persuaded that it has been rendered moot by the passage of time while the case was in the legal system. As we have previously said, “appellate opinions are not given for the purpose of settling abstract or theoretical questions but only to decide actual controversies which have injuriously affected the rights of a party to the litigation.” Rapid City Journal v. Circuit Court, Etc., 283 N.W.2d 563, 565 (S.D.1979). A well-recognized exception to the mootness rule is the case where “the underlying dispute between the parties is one ‘capable of repetition, yet evading review.’ ” Id. (Citation omitted.) We have also held that there is a public interest exception to the mootness rule under exceptional circumstances and have repeatedly held that to qualify for that exception, the following three criteria must be met: general public importance, probable future recurrence, and probable future mootness. Wheeldon v. Madison, 374 N.W.2d 367 (S.D.1985).
We determine that the issue is not moot for several reasons. First, absent a review by this court, a statute, or portion thereof, would be considered to be unconstitutional, at least in the Seventh Judicial Circuit, thus injuriously affecting Teener’s programs in that area of the state. Again, it is an issue that is capable of repetition, yet evading review, as the program is carried on throughout the rest of the state. Finally, it meets the public interest criteria of that exception. Thus, although there is strong precedent to avoid the determination of a constitutional issue if the decision can be made on other grounds, we will proceed to examine the constitutional issues.
We first examine the equal protection issue. As we have previously noted, the trial court applied the rational basis test in arriving at its decision. On appeal, Sedla-cek argues that this court should give the statute heightened or intermediate scrutiny because its effect is to promote gender-based discrimination. We note that her notice of review did not claim any error on the part of the trial court in this regard. However, we do not have to reach that argument.
In our opinion, the trial court made two significant errors in arriving at the decision below. First, the trial court gave no heed to the long-standing admonition:
There is a strong presumption that the laws enacted by the legislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution.
Oien v. City of Sioux Falls, 393 N.W.2d 286, 289 (S.D.1986); Matter of Certain Territorial Elec. Boundaries, Etc., 281 N.W.2d 65 (S.D.1979).
Free access — add to your briefcase to read the full text and ask questions with AI
MORGAN, Justice.
This decision is the final phase of an administrative appeal from a decision of the Human Rights Commission (Commission) dismissing a complaint filed by Laura Sedlacek (Sedlacek) against the South Dakota Teener Baseball Program (Teener),1 charging Teener with sexual discrimination in public accommodations in the conduct of the annual Teener Baseball tournament, wherein girls are ineligible to participate. Commission dismissed the complaint on the grounds that SDCL 20-13-22.1(2) exempted Teener from the provisions of the Human Rights Act, SDCL ch. 20-13. On appeal, the circuit court decided that the statutory exemption 2 was an unconstitutional deprivation of equal protection under the provisions of both the South Dakota and the United States Constitutions and directed that Sedlacek be permitted to play on any team for which she was otherwise qualified. Teener and Commission appeal. We reverse.
A brief factual background regarding Sedlacek’s activities is necessary. At the time of the filing of the complaint in May, 1987, Sedlacek was a fifteen-year-old female who resided with her family in Edge-mont, South Dakota. In 1986, for some reason not explained in the record, she began playing baseball for the team in Provo, some eight miles distant, rather than the Edgemont team. She played in the 1986 Teener Tournament under protection of a temporary restraining order. Her complaint was filed when she was told again, in April 1987, that she could not play on the Provo team because she was a girl.
Sedlacek appealed the dismissal of her complaint to the Circuit Court for the Seventh Judicial Circuit, Fall River County. The Circuit Court determined that the statutory exception applicable to Teener is unconstitutional under both state and federal constitutions on equal protection grounds alone. Sedlacek raised other constitutional arguments, but the trial court chose to base its decision on equal protection grounds.
The trial court, applying the reasonable basis test, was “unable to discern any reasonable basis for allowing veteran sponsored sports activities to discriminate against girls, while prohibiting the same type of conduct by other organizations.” The trial court further determined that “[t]here is no reason to treat the two groups differently and a statute that does so is necessarily unreasonable and arbitrary.”
Based on the findings of fact and conclusions of law, the trial court entered judgment reversing the decision of the Commission, declaring SDCL 20-13-22.1(2) unconstitutional, and directed that Sedlacek be allowed to compete on any Teener baseball team for which she otherwise qualifies.
On appeal, Commission and Teener raised three issues:
1. Whether the trial court erred in holding SDCL 20-13-22.1(2) unconstitutional.
[868]*8682. Whether the trial court erred in not remanding the case to Commission.
3. Whether Sedlacek has standing to file a charge of discrimination (Teen-er alone).
Sedlacek, by notice of review, also raises the issue whether SDCL 20-13-22.1(2) violates South Dakota’s prohibition against special legislation (Art. Ill, § 23(9)). None of the parties have raised any issue as to whether the Teener program constitutes a public accommodation, so we leave that question for another day when it is briefed and argued.
We first address the standing issue. Teener argues that since Sedlacek played in the 1986 tournament, and since she was probably precluded from playing in the 1987 tournament because Edgemont did not have sufficient players to field a team, she sustained no injury. In our opinion, this is. a non-issue. Sedlacek had to obtain a court order to participate in the 1986 tournament. Teener failed to develop the record on whether she could or did play in the 1987 tournament so we deem that issue abandoned.
Nor are we persuaded that it has been rendered moot by the passage of time while the case was in the legal system. As we have previously said, “appellate opinions are not given for the purpose of settling abstract or theoretical questions but only to decide actual controversies which have injuriously affected the rights of a party to the litigation.” Rapid City Journal v. Circuit Court, Etc., 283 N.W.2d 563, 565 (S.D.1979). A well-recognized exception to the mootness rule is the case where “the underlying dispute between the parties is one ‘capable of repetition, yet evading review.’ ” Id. (Citation omitted.) We have also held that there is a public interest exception to the mootness rule under exceptional circumstances and have repeatedly held that to qualify for that exception, the following three criteria must be met: general public importance, probable future recurrence, and probable future mootness. Wheeldon v. Madison, 374 N.W.2d 367 (S.D.1985).
We determine that the issue is not moot for several reasons. First, absent a review by this court, a statute, or portion thereof, would be considered to be unconstitutional, at least in the Seventh Judicial Circuit, thus injuriously affecting Teener’s programs in that area of the state. Again, it is an issue that is capable of repetition, yet evading review, as the program is carried on throughout the rest of the state. Finally, it meets the public interest criteria of that exception. Thus, although there is strong precedent to avoid the determination of a constitutional issue if the decision can be made on other grounds, we will proceed to examine the constitutional issues.
We first examine the equal protection issue. As we have previously noted, the trial court applied the rational basis test in arriving at its decision. On appeal, Sedla-cek argues that this court should give the statute heightened or intermediate scrutiny because its effect is to promote gender-based discrimination. We note that her notice of review did not claim any error on the part of the trial court in this regard. However, we do not have to reach that argument.
In our opinion, the trial court made two significant errors in arriving at the decision below. First, the trial court gave no heed to the long-standing admonition:
There is a strong presumption that the laws enacted by the legislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution.
Oien v. City of Sioux Falls, 393 N.W.2d 286, 289 (S.D.1986); Matter of Certain Territorial Elec. Boundaries, Etc., 281 N.W.2d 65 (S.D.1979). Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision. Id. at 69.
In this instance, the trial court viewed subsection (2) out of context from the balance of the statute and determined [869]*869that it alone was arbitrary. As we view the statute in its entirety, we perceive a legislative intention to exempt from the workings of the chapter a wide range of programs, self-contained and sponsored by a variety of organizations that had been operating in the state for many years prior to the enactment of the chapter. In this regard, it may be noteworthy that nationwide American Legion Junior Baseball program, clearly one of the programs that would be affected by this decision, was conceived and founded here in the state of South Dakota as memorialized by a monument erected at Milbank, in Grant County. We are of the opinion that, coupling the exemption of subsection (2) with the other exemptions set out in the statute, scouting programs, sorority and fraternity programs, father-son, mother-daughter programs, evidences an intent on the part of the legislature to preserve these historically active programs which could probably have been grandfathered in when the chapter was enacted, had anyone thought about it.
In City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975), we utilized a two-prong test to determine whether the equal protection clause had been violated. The first prong was to determine whether “the statute [sets] up an arbitrary classification among various persons subject to it.” 89 S.D. at 415, 233 N.W.2d at 333. Reading the statute as a whole, rather than out of text as the trial court did, we are of the opinion that the classifications set out therein are not arbitrary. Therefore, we need not decide whether the proper test in the second prong is the rational basis test used by the trial court or a heightened scrutiny as advocated by Sedlacek. We reverse the trial court’s decision that SDCL 20-13-22.1(2) is unconstitutional.
We next address Sedlacek’s issue on the unconstitutionality of the statute as violative of the prohibition against special legislation found in Article III, § 23(9) of the South Dakota Constitution. That provision reads:
The legislature is prohibited from enacting any private or special laws in the following cases:
[[Image here]]
9. Granting to an individual, association or corporation any special or exclusive privilege, immunity or franchise whatever.
Sedlacek argues that “the legislature violated the constitutional guarantee by exempting nationally chartered veterans organizations on the pretext of establishing a general class. There are any number of groups that also sponsor social, educational and recreational programming. There is no valid basis for offering special protection only to veterans groups.” Again, Sed-lacek would have us read SDCL 20-13-22.-1(2) in isolation. We again decline to do so. Reading the exemption statute as a whole, we again perceive the general class to be all those organizations, including, but not specifically limited to, veterans organizations which have historically provided programs or activities for educational, social or recreational purposes. In that context, the exemption does not violate the constitution. As we said in Behrns v. Burke, 89 S.D. 96, 99, 229 N.W.2d 86, 87 (1975):
A legislature has successfully avoided this prohibition when a statute is ‘so framed in good faith that by its terms it should apply to all parts of the state and operate on all members of the class when they come within the scope and purpose of the enactment.’ Generally, a legislature may define any class it wishes, and so long as all members of that class are treated alike the prohibition against private or special laws is not violated[.] (Citation omitted.)
We find no violation of either the federal or state constitution as urged by Sedlacek and reversal of the trial court’s judgment obviates any necessity for discussion of the issue on the trial court’s failure to remand to the Commission.
We reverse.
WUEST, C.J., and HENDERSON and MILLER, JJ., concur.
SABERS, J., dissents.