Board of Regents v. Carter

• Decision Date: 25 April 1975
• Docket Number: 11312,11313 and 11323,Nos. 11310,s. 11310
• Citation: 89 S.D. 40,228 N.W.2d 621
• Parties: , 89 L.R.R.M. (BNA) 2216, 77 Lab.Cas. P 53,694 BOARD OF REGENTS of South Dakota, Petitioner and Applicant, v. Henry E. CARTER, Commissioner of Labor and Management Relations, et al., Respondents and Appellants, and William J. Janklow (as successor to Kermit A. Sande), Attorney General of theState of South Dakota, Intervenor and Appellant.
• Court: South Dakota Supreme Court

Page 621

228 N.W.2d 621

89 S.D. 40, 89 L.R.R.M. (BNA) 2216,

77 Lab.Cas. P 53,694

BOARD OF REGENTS of South Dakota, Petitioner and Applicant, v. Henry E. CARTER, Commissioner of Labor and Management Relations, et al., Respondents and Appellants and William J. Janklow (as successor to Kermit A. Sande) Attorney General of theState of South Dakota Intervenor and Appellant.

Nos. 11310, 11312, 11313 and 11323.

Supreme Court of South Dakota.

April 25, 1975.

W. A. McCullen and Allen G. Nelson, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for petitioner and applicant.

Dennis W. Finch, Pierre, for respondent and appellant Henry E. Carter.

Harry H. Smith, Sioux City, Iowa, for respondent and appellant Local 2446.

Thomas M. Maher, Pierre, for respondent and appellant SDHEFA.

Kermit A. Sande, Atty. Gen., John Dewell, Asst. Atty. Gen., Pierre, for intervenor and appellant.

DOYLE, Justice.

This case involves two issues. The first is whether the South Dakota Board of Regents (Regents) may hire the services of independent counsel in bringing this action. The South Dakota Attorney General (Attorney General), as intervenor in this case, maintains that the Regents may not do so. The second is whether SDCL 3--18 is an unconstitutional infringement upon the Regents' control of the state's educational institutions. We hold that the Regents may employ counsel outside the Attorney General's office in bringing this suit and that SDCL 3--18, this state's public employee labor relations statute, is constitutional as applied to the Regents.

The facts at hand stem from the attempts of two separate groups of the Regents' employees to organize and gain recognition as bargaining units in their relations with the Regents. On April 29, 1972, a group known as the South Dakota Colleges and Universities Classified Employees Association (CEA) filed with the Regents for recognition as the representative of all classified employees, including clerical and blue collar employees. On May 10, 1972, Local 2446, American Federation of State, County and Municipal Employees, AFL-CIO (Local 2446) also filed with the Regents for recognition as the representative of only the blue collar employees. This latter request was later denied by the Regents who recognized the CEA as the bargaining unit representative on June 20, 1972. Local 2446 then filed a petition on June 21, 1972, with the South Dakota Commission of Labor and Management Relations. This procedure is specified in SDCL 3--18--4 and SDCL 3--18--5 as the method for determining the composition of the proper bargaining unit and for selecting the proper representative of that unit when, as in this case, the recognition granted by the public employer is questioned by one or more of the parties. ¹

The Commissioner of Labor and Management Relations, Henry E. Carter (Carter), conducted the appropriate hearings and issued an order on January 4, 1973, setting forth his findings thereon. Pursuant to SDCL 3--18--4, Carter defined the bargaining unit as the blue collar employees only, ² and pursuant to SDCL 3--18--5, Carter ordered an election by the employees to select the bargaining representative. Petitions for review of the decision were filed by CEA and the Regents, which were denied by Carter on January 25, 1973.

On October 16, 1972, the South Dakota Higher Education Faculty Association (HEFA) also requested recognition by the Regents as the representative of a second group of employees. This request was evidently later denied by the Regents in that the HEFA petitioned Carter on December 20, 1972, to exercise his powers under SDCL 3--18. On January 19, 1972, Carter set for hearing on February 3, 1973, the issues involved in the dispute between HEFA and the Regents.

The Regents then applied to the Circuit Court of Hughes County for a writ of prohibition to prevent Carter from asserting jurisdiction in each case. The Regents contend that the South Dakota Constitution, Art. XIV, § 3, vested control of all employees of the state educational institutions in the Regents, and any attempt by the legislature to infringe on such control under SDCL 3--18 was unconstitutional. The circuit court issued an alternative writ of prohibition on January 29, 1973, ordering Carter to halt any further proceedings in connection with the petitions and to show cause why he should not be absolutely restrained from asserting his jurisdiction in these matters. On February 13, 1973, the circuit court issued an order joining Local 2446 and the HEFA as respondents with Carter in this action.

In these matters the Regents have retained independent counsel and have been so represented. The Attorney General had given neither permission to seek counsel outside his office nor permission to bring this action. The Attorney General contends the Regents have no authority to hire independent counsel or bring this action without his permission in that he is the sole legal officer of the state and its agencies. The circuit court, by order dated February 15, 1973, authorized the Attorney General to intervene in these matters.

On May 8, 1973, the circuit court issued a peremptory writ of prohibition preventing Carter from interfering with the labor relations of the Regents on the grounds that SDCL 3--18 is unconstitutional. The circuit court also dismissed the Attorney General's complaint holding that Art. IV, of the South Dakota Constitution, commonly known as the Executive Article, did not give the Attorney General powers that would make the employment of independent counsel by the Regents and the bringing of the instant action impermissible. From this judgment Carter, Local 2446, HEFA and the Attorney General all appeal.

Respondents Carter, Local 2446 and HEFA, list ten assignments of error on the part of the circuit court. These assignments, while somewhat repetitious, set forth the following contentions:

1. Although the South Dakota Constitution Art. XIV, § 3, vests the Regents with control and management of the state educational institutions, such control is subject to such rules and restrictions as the legislature shall provide.

2. The Regents in recognizing the CEA as the representative for the clerical and blue collar workers were in reality attempting to block Local 2446's organizational efforts among the blue collar workers. This interference by the Regents was an infringement on the freedom of association and the equal protection of the laws guaranteed to the blue collar workers by the First and Foruteenth Amendments to the United States Constitution and by 42 U.S.C.A. § 1983.

3. The Regents in recognizing the CEA were, on June 20, 1972, using the provisions of SDCL 3--18, and thereby waived the right to question that statute when used by another party.

4. The remedy of a peremptory writ of prohibition is improper inasmuch as an adequate remedy exists at law in the form of formal appeal from Carter's decision.

The Attorney General lists seven assignments of error which can be summarized as follows: The South Dakota Constitution does not grant the Regents the power to institute their own lawsuits and hire their own lawyer, and any legislative attempt to confer that power is an unconstitutional infringement on the power reserved to the Attorney General by Art. IV of the South Dakota Constitution. Since we find that the issue of whether the Regents' control is subject to legislative rules and restrictions disposes of both appeals here, we will confine this opinion to that fundamental issue.

The South Dakota Constitution, Art. XIV, § 3, states:

'The state university, the agriculture college, the school of mines and technology, the normal schools, a school for the deaf, a school for the blind, and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the Governor and confirmed by the senate Under such rules and restrictions as the Legislature shall provide. The Legislature may increase the number of members to nine.' (emphasis supplied)

The Regents contend, and the circuit court so held, that the plain meaning of the italicized phrase is to place rules and restrictions on appointments by the governor and confirmations by the senate. To allow the phrase in question to modify the word 'control' would be, at the very least, grammatically awkward and quite possibly incorrect. While we agree that one of the primary rules of statutory and constitutional construction is to give words and phrases their plain meaning and effect, Boe v. Foss, 1956, 76 S.D. 295, 77 N.W.2d 1, and while we also agree that the reading given Art. XIV, § 3, by the circuit court is grammatically correct, we feel constrained, not only by previous decisions of this court but also by sound policy considerations, to hold otherwise. To affirm the circuit court's construction of Art. XIV, § 3, would establish the Regents as a fourth branch of government independent of any legislative policies. This, we believe, could not have been the intent of the people when they delegated their power to the Regents through Art. XIV, § 3.

Normally, the fundamental question in this case would be whether Art. XIV, § 3, is self-executing. If not, legislative implementation might be necessary to give the Regents any control at all. In that case, any powers of the Regents would be legislatively delegated, indicating the ability of the legislature to rule and restrict. See Synod of Dakota v. State, 1891, 2 S.D. 366, 50 N.W. 632; State v. Bradford, 1899, 12 S.D. 207, 80 N.W. 143; State v. South Dakota Rural Credits Board, 1922, 45 S.D. 619, 189 N.W. 704.

As I state later, we do not find the resolution of this issue necessary to this case. A short discussion, however, is necessary for us to understand the nature of the Regents' power. In State v. Sheldon, 1896, 8 S.D. 525, 67 N.W. 613, it was held that the old Art. XIV, § 3, ³ did not require senate...