(dissenting).
This is another “statist” opinion, exalting the authority of a state agency, here the Secretary of Revenue of the State of South Dakota, over the constitutional rights (both state and federal) of citizens. Specifically, I dissent for these reasons:
1. Wording in SDCL 10-45-45, the controlling statute in this case, is materially different from SDCL 61-3-2, the important statute in Carr.
2. Department of Revenue inceptually began a fishing expedition by attempting to get all business and all private records, by subpoena duces tecum, in what it designated a “civil audit.” Citizens refused to comply unless given immunity from criminal prosecution.* State simply could have expressed: “We give you immunity — now give us the records.” State is deceitful.
3. Original subpoena duces tecum was overly broad in that personal records and income tax records were demanded and for a period of years beyond the statutory three year requirement. SDCL 10-45-45.
4. Trial court, realizing it had gone beyond the law in requiring all personal records, attempted to sanitize its improvident order. By this time, citizens were already, defacto, in contempt of court.
5. Department of Revenue, until defense counsel stepped in, was setting up citizens for criminal prosecution under SDCL 10-45-48.1. Its practices were sharp and unlawful. See, State Dept. of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981). Said statist agency should not be rewarded for its in-ceptual aggressive, unconstitutional actions. Initially, the Reifs were threatened with imprisonment if they did not comply. Is this Department enforcer, jury, and judge?
6. Majority has referred to United States v. Doe [465 U.S.] at 607 [104 S.Ct. at 1239]; it has not read nor interpreted that case’s holding(s) correctly. Read page 117 thereof. If my interpretation is wrong, then for my authority I rely upon the statement of Mr. Justice Marshall, with whom Mr. Justice Brennan joined, at page 619 thereof, together with the special writing of Mr. Justice Stevens, at pages 619, 620, 621, 622, and 623 [104 S.Ct. at pages 1245, 1246, 1246-47, 1247, and 1247],
7. The act of producing the documents has, as Mr. Justice Stevens points out, communicative aspects which warrant Fifth Amendment protection. Fisher v. United States, 425 U.S. 391, 414, 96 S.Ct. 1569 [1583], 48 L.Ed.2d 39 (1976).
8. Had the trial court reviewed the documents, there would have existed pre-compliance review. See, Minn. State Bar Ass’n. v. Divorce Assistance Ass’n., [311 Minn. 276] 248 N.W.2d 733, 738 (1976); Lieb v. Henry, 99 A.D.2d 757, 471 N.Y.S.2d 674 (1984). At a minimum, this case should be remanded for an in-camera review for the requested documents.
Art. VI, § 9, South Dakota Constitution provides: No person shall be compelled in a criminal case to give evidence against himself or be twice put in jeopardy for the same offense. Amendment 5, Bill of Rights, United States Constitution is different; inter alia, it expresses: “... nor shall be compelled, in any criminal case, to be a witness against himself, ...” State v. Myers, 464 N.W.2d 608, 611-612 (S.D.1990) (Henderson, J., concurring in part; dissenting in part); State v. Lanier, 452 N.W.2d 144, 148 (S.D.1990) (Henderson, J., dissenting); State v. Neville (II), 346 N.W.2d 425, 432 (S.D.1984) (Henderson, J., concurring in part and dissenting in part). In Neville, at 432, I expressed:
This Nation is a union of states and each state cannot depend upon the United States Supreme Court for constitutional direction on its state constitution. This state must keep within the intention and *821spirit of its constitution adopted in 1889. The United States Constitution obtained final ratification in 1791. Where there is a difference, we should stand up and state the difference and rule in accordance with the difference.
In said cases, with trembling hand and pursed lips did I attempt to pen these constitutional differences. Alas, this distinction has not, as yet, been met with approval of academic warmth by my Brothers. Come the revolution.
Citizens offered to provide the subpoenaed records for an in-camera review by the trial court but trial court refused the offer.