Wyatt v. Kundert

• Decision Date: 02 October 1985
• Docket Number: Nos. 15087,15090 and 15095,s. 15087
• Citation: 23 ERC 1767,375 N.W.2d 186
• Parties: Harold WYATT, Chem Nuclear Systems, Inc., Plaintiffs and Appellants, v. Alice KUNDERT, Secretary of State for the State of South Dakota; State of South Dakota, By and Through its Attorney General, the Honorable Mark V. Meierhenry, Defendants and Appellees, and Nuclear Waste Coalition, Inc., Intervenor and Appellee.
• Court: South Dakota Supreme Court

Page 186

375 N.W.2d 186

23 ERC 1767

Harold WYATT, Chem Nuclear Systems, Inc., Plaintiffs and Appellants, v. Alice KUNDERT, Secretary of State for the State of South Dakota; State of South Dakota, By and Through its Attorney General, the Honorable Mark V Meierhenry, Defendants and Appellees and Nuclear Waste Coalition, Inc., Intervenor and Appellee.

Nos. 15087, 15090 and 15095.

Supreme Court of South Dakota.

Argued Sept. 13, 1985.

Decided Oct. 2, 1985.

Gene N. Lebrun of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, and William J. Quirk, Columbia, S.C., for plaintiffs and appellants; Michael A. Mann, Columbia, S. C., on brief.

Thomas Harmon, Asst. Atty. Gen., Pierre, for defendants and appellees; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Laurence J. Zastrow of Gors, Braun, Carlon, Smith & Zastrow, Pierre, for intervenor and appellee.

HENDERSON, Justice.

ACTION

This is an expedited appeal addressing (1) the constitutionality of Chapter 240, South Dakota Sessions Laws 1984 (Chapter 240), by way of a declaratory judgment complaint and (2) the prohibition of a statewide special election via an application for Peremptory Writ of Prohibition, the latter regarding this state's entry into the Dakota Interstate Low-level Radioactive Waste Management Compact. The trial court upheld Chapter 240 from constitutional attack and denied the Writ of Prohibition. We affirm in part and reverse in part and hold that the election may proceed on the second Tuesday of November 1985.

PARTIES

Plaintiffs-appellants are Harold Wyatt and Chem Nuclear Systems, Inc. (plaintiffs). Harold Wyatt is a South Dakota citizen and taxpayer from Fall River County. Chem Nuclear Systems, Inc., is a registered corporation in South Dakota. It is involved in the business of radioactive waste disposal and it desires to establish a commercial low-level radioactive waste facility near Edgemont.

Defendants-appellees are Alice Kundert, Secretary of State for the State of South Dakota, and the State of South Dakota by and through its Attorney General, Mark Meierhenry (defendants).

Intervenor-appellee is Nuclear Waste Coalition, Inc. (intervenor). Intervenor is a nonprofit South Dakota corporation and it was the major driving force behind initiative legislation known as Chapter 240.

FACTS

Since the inception of the Manhatten Project in the 1940's, the United States Government has exercised exclusive control over nuclear/radiological safety. The individual states, however, if an agreement state under 42 U.S.C. § 2021, or a member of a compact under 42 U.S.C. §§ 2021b through 2021d, may exercise some degree of regulation over the disposal of radioactive waste. If not an agreement or compact state, a state's authority to regulate such activities is extremely limited.

By an initiative election on November 6, 1984, the people of South Dakota approved the enactment of Chapter 240. Chapter 240, which is now codified in SDCL ch. 34-21A, reserved, among other things, to the people of South Dakota the exclusive right to approve or reject by election the joining of South Dakota to any compact with another state or states with respect to the disposal of low- or high-level nuclear waste. Before a vote may take place, however, an application must be filed with the Secretary of State. The application must contain a complete and accurate proposal detailing the applicant's plans; objective; operating procedure; social, environmental, and economic impact; and ultimate financial responsibility. The Secretary of State is then to publish a summary of the application in generally circulated South Dakota newspapers and conduct seven hearings on the application around the state with the applicant present. Then, if the voters of South Dakota approve, the above activity can take place.

In the early months of 1985, the South Dakota Legislature enacted Chapter 287, South Dakota Session Laws 1985 (Chapter 287), known as the Dakota Interstate Low-level Radioactive Waste Management Compact (Compact). This law was never subjected to a referendum petition by the people. It was signed by the Governor on March 20, 1985. The Compact establishes an interstate agreement designed to regulate and control the disposal of low-level radioactive waste generated in or imported into South Dakota. North Dakota has also enacted the Compact. However, the Compact has not become effective because it has not been approved by Congress. Article VI of the Compact provides that "the provisions of chapter 240, 1984 Session Laws of South Dakota, may not be construed to be in conflict with any provision of this Compact and may not be superseded by it."

The 1985 South Dakota Legislature also passed House Joint Resolution 1005 (HJR 1005). HJR 1005 can be found in Chapter 288, 1985 South Dakota Session Laws, and it provides in full:

DAKOTA INTERSTATE LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT COMPACT SUBMITTED TO THE ELECTORATE

A JOINT RESOLUTION, Proposing and submitting to the electors at a special election the Dakota Interstate Low-level Radioactive Waste Management Compact.

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE STATE OF SOUTH DAKOTA, THE SENATE CONCURRING THEREIN:

That at a special election held in the state on the second Tuesday in November, 1985, the Dakota Interstate Low-level Radioactive Waste Management Compact, which is hereby agreed to, shall be submitted to the electors of the state for approval. For the purpose of conducting the election required by this Resolution, all applicable provisions of Title 12 concerning general elections shall apply.

HJR 1005 did not contain an enacting clause and was not signed by the Governor.

Secretary of State Alice Kundert proposed to conduct the election as provided in Chapter 240 and HJR 1005. Plaintiffs, however, instituted this action seeking a Peremptory Writ of Prohibition to prevent the election and also a Declaratory Judgment that Chapter 240 was unconstitutional. Plaintiffs alleged that Chapter 240 was unconstitutional because it delegates legislative power, fails to provide standards to guide the electorate, and violates the Supremacy and Commerce Clauses of the United States Constitution.

The plaintiffs and defendants stipulated that no factual question existed. The intervenors filed a motion to intervene. All parties filed briefs and a hearing was conducted on August 15, 1985. The trial court thereafter held that plaintiffs have standing and are proper parties; that a justiciable controversy exists; that intervenor is a proper party for intervention; that Chapter 240 is not unconstitutional as an improper delegation of legislative power; that it does not violate the Supremacy and Commerce Clauses of the United States Constitution; and that a Peremptory Writ of Prohibition will not be granted because: (1) adequate remedies at law exist, (2) the acts sought to be restrained are ministerial and not subject to a Writ of Prohibition, (3) the action was not timely commenced, and (4) it would be tantamount to an advisory opinion. The trial court also specifically declined to rule on the defendants' interpretation that Chapter 240 does not constitute a referendum upon Chapter 287 (the Compact) and declined to rule on the defendants' interpretation that HJR 1005 is not a properly enacted law and does not constitute a referendum upon the Compact.

From the trial court's order, the plaintiffs have appealed. From the trial court's refusal to adopt defendants' additional proposed conclusions of law, the defendants seek review. From the trial court's conclusion that plaintiffs are proper parties, the intervenor seeks review.

On August 30, 1985, this Court expedited the appeal and ordered the filing of simultaneous briefs. Oral arguments were heard on September 13, 1985. We address only those issues we deem relevant to this expedited appeal.

DECISION

I.

DOES THE LEGISLATURE HAVE THE INHERENT POWER TO REFER ITS OWN ACTS? WE HOLD THAT IT DOES.

As stated in the facts above, the 1985 Legislature, through HJR 1005, resolved that an election be held so as to submit the Compact to the electors for approval. Thus, it is the enacting of the Compact which is set for election. The defendants contend that this was a proper exercise of the inherent legislative power to refer statutes or submit questions to the voters. With this contention, we agree.

The South Dakota Constitution, unlike the Constitution of the United States, does not constitute a grant of legislative power. Instead, our constitution is but a limitation upon the legislative power and the legislature may exercise that power in any manner not expressly or inferentially proscribed by the federal or state constitutions. See McDonald v. School Bd. of Yankton, 90 S.D. 599, 606, 246 N.W.2d 93, 97 (1976); Clem v. City of Yankton, 83 S.D. 386, 396, 160 N.W.2d 125, 130 (1968); and Kramar v. Bon Homme County, 83 S.D. 112, 115, 155 N.W.2d 777, 778 (1968). Thus, except as limited by the state and federal constitutions, the legislative power of the state legislature is unlimited. See Clem, id.; Acker v. Adamson, 67 S.D. 341, 346, 293 N.W. 83, 85 (1940); and State ex rel. Wagner v. Summers, 33 S.D. 40, 49, 144 N.W. 730, 732 (1913). "What the representatives of the people have not been forbidden to do by the organic law, that they may do." State ex rel. Payne v. Reeves, 44 S.D. 568, 587, 184 N.W. 993, 996 (1921). "Consequently, in determining whether an act is unconstitutional we search the state and federal constitutions for provisions which prohibit its enactment rather than for grants of such power." Clem, id. A presumption in favor of constitutionality is also accorded any legislative act and that presumption is not overcome until the act is clearly and unmistakably shown to be unconstitutional and no reasonable doubt exists that it violates constitutional principles. South Dakota Ass'n of Tobacco & Candy Distrib. v. State, 280 N.W.2d 662, 664-65 (S.D.1979).

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