Bone Shirt v. Hazeltine, 23507.

• Decision Date: 29 June 2005
• Docket Number: No. 23507.,23507.
• Citation: 700 N.W.2d 746,2005 SD 84
• Parties: Alfred BONE SHIRT, Belva Black Lance, Bonnie High Bull and Germaine Moves Camp, Respondents, v. Joyce HAZELTINE, in her official capacity as Secretary of the State of South Dakota, Scott Eccarius, in his official capacity as Speaker of the South Dakota House of Representatives, South Dakota House of Representatives, Arnold Brown, in his official capacity as President of the South Dakota Senate, and South Dakota Senate, Petitioners.
• Court: South Dakota Supreme Court

700 N.W.2d 746

2005 SD 84

Alfred BONE SHIRT, Belva Black Lance, Bonnie High Bull and Germaine Moves Camp, Respondents, v. Joyce HAZELTINE, in her official capacity as Secretary of the State of South Dakota, Scott Eccarius, in his official capacity as Speaker of the South Dakota House of Representatives, South Dakota House of Representatives, Arnold Brown, in his official capacity as President of the South Dakota Senate, and South Dakota Senate, Petitioners.

No. 23507.

Supreme Court of South Dakota.

Argued March 21, 2005.

Decided June 29, 2005.

Patrick Duffy of Duffy & Duffy, Rapid City, South Dakota, Bryan L. Sells of American Civil Liberties Union Foundation, Atlanta, Georgia, Attorneys for respondents.

Lawrence E. Long, Attorney General, John P. Guhin, Sherri Sundem Wald, Assistant Attorneys General, Pierre, South Dakota, Attorneys for petitioners.

GILBERTSON, Chief Justice and SABERS, Justice.

[¶ 1.] Pursuant to SDCL 15-24A-1¹ United States District Judge Karen E. Schreier of the District of South Dakota certified the following question to this Court:

Is the South Dakota Legislature authorized under Article III, Section 5 of the South Dakota Constitution, to reapportion Districts 26 and 27 and other affected areas in response to the federal district court finding a violation of Section 2 of the Voting Rights Act of 1965?

We answer the question in the affirmative.

FACTS

[¶ 2.] Article III, Section 5 of the South Dakota Constitution mandates that the Legislature apportion its membership every ten years after 1991. Pursuant to this provision the Legislature undertook the redistricting process following the 2000 census. Following redistricting committee hearings, the Legislature at a special session adopted the 2001 plan which the governor signed on November 1, 2001. Bone Shirt v. Hazeltine, 336 F.Supp.2d 976, 983 (D.S.D.2004).

[¶ 3.] Two Native American residents of Todd County in District 27 and two Native American residents in Bennett and Jackson Counties in District 26 brought suit in the United States District Court against the South Dakota Secretary of State, the Speaker of the House of Representatives, the President of the Senate, and the two houses of the South Dakota Legislature. The plaintiffs in the district court alleged that South Dakota's 2001 legislative redistricting plan violated their rights under Sections 2 and 5 of the Voting Rights Act of 1965. Bone Shirt, 336 F.Supp.2d at 980.

[¶ 4.] A three judge panel held that defendants violated Section 5 by failing to preclear the 2001 legislative redistricting plan. Id. 336 F.Supp.2d at 980. Following a court trial, the United States District Court further held

[T]hat under the totality of the circumstances, the South Dakota 2001 Plan results in unequal electoral opportunity for Indian voters. The court finds that plaintiffs have satisfied three Gingles factors and that the totality of the circumstances evidence that Indians in Districts 26 and 27 have been denied an equal opportunity to access the political process. The current legislative Plan impermissibly dilutes the Indian vote and violates § 2 of the Voting Rights Act. Defendants must afford Indians in both Districts 26 and 27 a realistic and fair opportunity to elect their preferred candidates.

Id. 336 F.Supp.2d at 1052. The district court pointed out that state government should ordinarily have the opportunity to propose a remedy for a § 2 violation since "redistricting remains primarily in the domain of the states." Id. 336 F.Supp.2d at 1053. Defendants were given forty-five days to file remedial proposals. Id. 336 F.Supp.2d at 1053.

[¶ 5.] In light of our decision in Emery v. Hunt, 2000 SD 97, 615 N.W.2d 590, a question arose as to whether the Legislature could constitutionally engage in legislative apportionment in a year other than a year after a decennial census. Because of his concern about the State's ability to comply with the district court's order to make remedial proposals while also complying with the constitutional mandate regarding legislative apportionment, Governor M. Michael Rounds requested an advisory opinion from this Court. We declined to answer this request because:

The Justices cannot render an advisory opinion on issues which may arise in the federal litigation. That would involve the Justices [] determining issues based on conditions that may or may not take place and which are outside the process of adjudication without giving the parties an opportunity to brief the issues and advocate a position.

Letter from Chief Justice David Gilbertson to Governor M. Michael Rounds, October 5, 2004.

[¶ 6.] The state defendants then asked the district court to certify the question to this Court. The district court did so, noting:

Certification is within the federal court's discretion. Perkins v. Clark Equipment Co., 823 F.2d 207, 209 (8thCir.1987). Certification is "appropriate when the state court's construction of an uncertain state law could make resolution of federal constitutional questions unnecessary." Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1463 (8th Cir.1995). The South Dakota Supreme Court may answer questions of law certified to it "which may be determinative of the cause pending in the certifying court and[when] it appears... that there is no controlling precedent in the decisions of the Supreme Court of [South Dakota]." SDCL 15-24A-1.

In the instant case, this court found that the state legislative districting plan of 2001 violates the Voting Rights Act of 1965 because minority voting rights are diluted. This court ordered defendants to file remedial proposals consistent with the opinion within 45 days. "`When a federal court declares an existing apportionment scheme unconstitutional, it is therefore appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan.'" Williams v. City of Texarkana. Ark., 32 F.3d 1265, 1268 (8thCir1994)(quoting Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 2497, 57 L.Ed.2d 411 (1978)). The court must defer to a proposed plan adopted by the legislature, "unless the plan does not completely remedy the violation or the proposed plan itself constitutes a section two violation." Williams, 32 F.3d at 1268. The district court must fashion a remedial plan if the state legislature does not propose a remedy. Id.

The Supreme Court of South Dakota has previously ruled that the plain language of Article III, Section 5, authorizes apportionment by the legislature only after a decennial census. In re Certification of a Question of Law, 615 N.W.2d 590 (S.D.2000) (Emery v. Hunt). The South Dakota Supreme Court has not had the opportunity, however, to address the question of whether the state legislature has the power under the South Dakota state constitution to reapportion after its 2001 decennial apportionment was found to violate federal law. If the state legislature has the power to reapportion and enacts a plan that completely remedies the violation without creating a new section two violation, such action may resolve the case pending before this court. Under these circumstances, the court finds it appropriate to certify a question of law to the South Dakota Supreme Court. The question proposed by defendants will be broadened, however, to include "other affected areas" in addition to Districts 26 and 27 because plaintiffs' proposed remedial plans slightly impact adjacent legislative districts.

ISSUE

[¶ 7.] This Court filed an order accepting certification on January 20, 2005. Consequently this issue is properly before this Court:

Is the South Dakota Legislature authorized under Article III, Section 5 of the South Dakota Constitution, to reapportion Districts 26 and 27 and other affected areas in response to the federal district court finding a violation of Section 2 of the Voting Rights Act of 1965?

ANALYSIS

[¶ 8.] Two South Dakota cases are relevant to deciding the issue before the Court. The first, decided in 1933, is In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295 (S.D.1933). The second, issued in 2000, is Emery v. Hunt, 2000 SD 97, 615 N.W.2d 590.

[¶ 9.] When In re Opinion of the Judges was before the Court, Article III, Section 5 of the South Dakota Constitution provided:

The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy. Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state.

The Twenty-Second Legislature which met in 1931 failed to comply with the mandate of § 5 and did not make the required apportionment. The question became whether the Twenty-Third Legislature meeting in 1933 had the authority to apportion or whether it was prohibited from doing so by the "but at no other time" language in Article III, Section 5.

[¶ 10.] This Court examined the constitutions of other states and found that most apportionment provisions had affirmative mandates for action at a specified time but, unlike South Dakota, no express prohibition of action at other times. Despite this, courts held "an affirmative mandate for legislative action at a specified time is an implied prohibition of action at any other time." In re Opinion of the Judges, 61 S.D. at 111, 246 N.W. at 296. This Court found that no valid distinction could be based upon the South Dakota constitution's express, rather than implied...