Barker v. Hazeltine, Civ. No. 97-4242.

• Decision Date: 31 March 1998
• Docket Number: Civ. No. 97-4242.
• Parties: Linda K. BARKER, Barbara Everist, and Roy Letellier, Plaintiffs, v. Joyce HAZELTINE, in her Official Capacity as Secretary of State, Defendant.
• Court: U.S. District Court — District of South Dakota

3 F.Supp.2d 1088

Linda K. BARKER, Barbara Everist, and Roy Letellier, Plaintiffs, v. Joyce HAZELTINE, in her Official Capacity as Secretary of State, Defendant.

Civ. No. 97-4242.

United States District Court, D. South Dakota, Southern Division.

March 31, 1998.

Scott D. McGregor, Viken, Viken, Pechota, Leach & Dewell, Rapid City, SD, for Plaintiffs.

Mark W. Barnett, Sherri Sundem Wald, Pierre, SD, for Defendant.

MEMORANDUM OPINION AND ORDER

PIERSOL, District Judge.

This case does not determine whether or not it is desirable to establish term limits for United States Representatives and United States Senators. The Federal Constitution does not now impose term limits. In recent years there has been vigorous debate concerning term limits. The Court's decision today does not, should not, and cannot, resolve the ultimate question of whether the Federal Constitution should be amended to limit congressional incumbents to a predetermined number of terms in office. The power to decide that issue lies with the people of the United States, and not with the Federal Judiciary. The Court's decision today decides a separate issue which is properly considered by the Judiciary. The issue is whether the method by which South Dakota Initiated Measure 1 attempts to establish congressional term limits complies with federal constitutional principles. Initiated Measure 1, adopted by majority vote, directs the South Dakota Secretary of State to place labels on the primary and general election ballots to identify those candidates for United States Senator and United States Representative who do not support the particular term limits provision advocated in Initiated Measure 1. As discussed more fully below, the Court declares Initiated Measure 1 unconstitutional and permanently enjoins its enforcement.

I. The Parties

The issue is brought to the Court by three plaintiffs through this action for declaratory and injunctive relief. Plaintiff Linda K. Barker is an elected State Representative from Legislative District 13 in Minnehaha County, South Dakota, and she resides in Sioux Falls. Plaintiff Barbara Everist is an elected State Senator from Legislative District 14 in Minnehaha County, and she also lives in Sioux Falls. Plaintiff Roy Letellier is a former elected State Representative from District 29 in Meade and Butte Counties, South Dakota, and he is a former candidate for the office of Public Utilities Commission. He resides in Belle Fourche, in Butte County, South Dakota. The three plaintiffs, as citizens, residents, taxpayers, registered voters, and current or former South Dakota elected officials, have a legal interest in the constitutionality of Initiated Measure 1 which they may properly bring before the Court in this suit pursuant to 42 U.S.C. § 1983.

Defendant Joyce Hazeltine is the duly elected and acting Secretary of State of the State of South Dakota. In her capacity as Secretary of State, defendant Hazeltine is the legally designated custodian of the official laws of the State of South Dakota, and she serves as the chief election official of the State of South Dakota. She is specifically charged with implementing the provisions of Initiated Measure 1. Therefore, Secretary of State Hazeltine also has a legal interest in the resolution of this case.

II. The History of Initiated Measure 1

On April 10, 1996, the full text of the initiated petition, later designated as Initiated Measure 1, was filed in Secretary of State Hazeltine's office as required by South Dakota law. S.D.Codified Laws Ann. § 2-1-6.2 (1992). On May 6, 1996, Secretary of State Hazeltine received the completed ballot label initiative petition as required by S.D.Codified Laws Ann. § 2-1-2 (1992). On August 9, 1996, after remand by the South Dakota Supreme Court for validation of signatures on certain disputed petition sheets, Larson v. Hazeltine, 1996 SD 100, 552 N.W.2d 830 (S.D.1996), Secretary of State Hazeltine filed the initiative petition and declared it Initiated Measure 1 for the 1996 general election. On August 12, 1996, defendant Hazeltine certified the text, statement, title, Attorney General's explanation and recitation of effect of Initiated Measure 1 to all South Dakota County Auditors for inclusion on the 1996 general election ballot, as required by S.D.Codified Laws Ann. § 12-13-1 (1995). Initiated Measure 1 was titled, "An Act requiring South Dakota's Congressional delegation to use their powers to adopt a congressional term limits amendment to the United States Constitution."

The South Dakota Attorney General's ballot explanation of Initiated Measure 1, drafted pursuant to S.D.Codified Laws Ann. § 12-13-9 (1995), stated:

This initiated law would require the U.S. Senators and Representative from South Dakota to use all of their powers to support an amendment to the U.S. Constitution which establishes congressional term limits of three terms for a Representative and two terms for a Senator. If the incumbent Senators and Representative do not use their power in eight designated situations to support a term limits amendment, the Secretary of State would be required to place the words "Disregarded Voters' Instruction on Term Limits" on the ballot next to that candidate's name at his/her next election. A candidate who is not currently in the Senate or the House would be given an opportunity to take a pledge supporting term limits and agreeing, if elected, to use his/her powers to enact the amendment. The Secretary of State would be required to place the words "Declined to Pledge to Support Term Limits" on the ballot next to the name of a candidate who refused to pledge. These restrictions would continue until a constitutional amendment establishing term limits is enacted by Congress and ratified by the states.

At the general election held on November 5, 1996, the voters passed Initiated Measure 1 by a vote of 205,852 (67.59%) in favor of the measure to 98,696 (32.41%) against it. The official state canvass of the vote on Initiated Measure 1 was held on November 15, 1996. The following day, Initiated Measure 1 became law and was codified at S.D.Codified Laws Ann. § 12-16-1.2 (1997 Advance Code Serv.). The full text of Initiated Measure 1 is appended to this decision as Appendix A.

During its 1997 session, the South Dakota Legislature passed House Bill 1188 to repeal Initiated Measure 1 as codified. 1997 S.D.Laws Ch. 80, § 1. Governor William J. Janklow signed the bill on March 11, 1997, repealing Initiated Measure 1 effective July 1, 1997.

On March 25, 1997, the full text of a referendum on House Bill 1188 was filed with Secretary of State Hazeltine pursuant to S.D.Codified Laws Ann. § 2-1-6.2 (1992). On June 9, 1997, defendant Hazeltine received the completed referendum petition with a sufficient number of signatures, and on June 19, 1997, she certified the referendum for inclusion on the 1998 general election ballot as Referred Law 1. The effect of certification of Referred Law 1 was to prevent the repeal of initiated Measure 1 effective July 1, 1997, until the issue could be presented to the voters at the general election on November 3, 1998. Consequently, Initiated Measure 1, requiring ballot labels next to the names of those candidates for United States Senator and United States Representative who do not meet the requirements of Initiated Measure 1, remains the law of South Dakota. See SDDS, Inc. v. State of South Dakota, 481 N.W.2d 270, 272 (S.D.1992) ("The purpose for the delay provision [in legislation taking effect] is to allow our citizens time to obtain sufficient signatures to begin the referendum process.")

During the recently-ended 1998 Session, the South Dakota Legislature amended Initiated Measure 1 by passing House Bill 1007 to direct the Secretary of State to take certain actions regarding her implementation of Initiated Measure 1, including a provision requiring candidates for the offices of United States Senator and Representative to file an affidavit or pledge with the Secretary of State by March 1, 1998, attesting to their compliance with Initiated Measure 1. Governor William J. Janklow signed House Bill 1007 on February 14, 1998, and because the bill contained an emergency clause, it became effective immediately. A certified copy of House Bill 1007, as passed by the South Dakota Legislature and signed by Governor Janklow, is appended to this decision as Appendix B.

On February 27, 1998, at the request of plaintiffs, this Court entered a Temporary Restraining Order, effective until the close of business on Tuesday, March 31, 1998, enjoining Secretary of State Hazeltine from implementing the 1998 amendments to Initiated Measure 1. Specifically, the Court enjoined defendant Hazeltine from requiring incumbent candidates for the offices of United States Senator and Representative to complete and return to the Secretary of State a congressional candidate's affidavit and from requiring non-incumbent candidates for the same offices to complete and return a term limits pledge.

Plaintiffs Barker, Everist, and Letellier now challenge the constitutionality of Initiated Measure 1 on several grounds pursuant to 42 U.S.C. § 1983. Secretary of State Hazeltine defends Initiated Measure 1 as constitutional. The Court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, and the Court has authority to issue a declaratory judgment pursuant to 28 U.S.C. § 2201 and § 2202. Venue properly lies with this Court pursuant to 28 U.S.C. § 1391(b).

The plaintiffs and the defendant agree that there are no facts in dispute which would require a trial, and the Court is presented only with important questions of federal constitutional law. Counsel for the parties have filed legal briefs which thoroughly and helpfully explain their positions. The Court finds that further oral argument is not necessary.

III. Analysis

Approximately half of the states had adopted congressional term limit measures by the time the United...