Certification of a Question of Law from the U.S. Dist. Court, Dist. of S.D., Southern Div., Matter of, A-1
| Decision Date | 04 September 1985 |
| Docket Number | No. 49-5,D,No. 63-3,A-1,No. 14685,No. 32-2,63-3,49-5,32-2,14685 |
| Citation | 372 N.W.2d 113,26 Ed.LawRep. 1232 |
| Parties | 26 Ed. Law Rep. 1232 -24, and concerning federal action Civ 804034, titled as follows: Oswald F. Elbe, James L. Cope, James A. Fravel, Jr., Laird P. Gillem, William H. Harris, Howard Hermanson, C.R. Kratz, John W. Mitchell, Fletcher C. Nelson, Lloyd K. Salisbury, and John Sprecher, Plaintiffs, v. Yankton Independent School Districtr. Donald Lepp, Garry Moore, Rev. Harold Hiemstra, Mary Alice Halverson and Ronald Bertsch, as members of the School Board of the Yankton Independent School District; Sioux Falls Independent School District; John Simko, Jr., Robert Glasrud, Karen Pearson, Sue Brown and Pam Nelson, as members of the School Board of the Sioux Falls Independent School District; Pierre School District; Patricia Adam, Gary Snow, Gary Ellwanger, Dr. Richard Schoessler, and Casey H. Kebach, as members of the School Board of the Pierre School District , Defendants, Dan Naughton, Barbara Naughton, James W. Fitzgibbons and Rose Clare Fitzgibbons, Intervenors. Supreme Court of South Dakota |
| Court | South Dakota Supreme Court |
Lee Boothby of Boothby & Huff, Berrien Springs, Mich., for plaintiffs; Marvin Bailin of Christopherson, Bailin & Anderson, Sioux Falls, on brief.
Deming Smith of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants; Robert D. Hofer and Thomas E. Blue of Riter, Mayer, Hofer & Riter, Pierre, Gerald L. Reade of Brady, Kabeiseman, Reade & Johnson, Yankton, on brief.
Jeremiah D. Murphy of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for intervenors.
Pursuant to SDCL 15-24A-1, Senior District Judge Fred J. Nichol of the United States District Court, District of South Dakota, has certified to us the following question:
Are the provisions of the South Dakota textbook loan statutes as amended by the South Dakota Legislature in 1977 (S.L.1977, Ch. 134 section 2), S.D.C.L. section 13-34-16.2 and S.D.C.L. section 13-34-16.3, unconstitutional on their face under the provisions of Article VI, Section 3, and Article VIII, Section 16, of the South Dakota Constitution?
In his certification, Judge Nichol indicates that it appears that there is no controlling precedent in the decisions of this court determinative of the exact legal question before the District Court. As set forth below, we are of the opinion that the question is controlled by our decision in McDonald v. School Board of Yankton Independent School Dist. No. 1, 90 S.D. 599, 246 N.W.2d 93 (1976), and we answer the certified question accordingly.
Plaintiffs in the District Court action, a group of South Dakota taxpayers, brought an action in 1980 challenging the constitutionality of the South Dakota textbook loan statutes, SDCL 13-34-16.2 and SDCL 13-34-16.3, on the grounds that the statutes on their face and as applied by the defendant school districts violate the First Amendment to the United States Constitution and Article VI, Sec. 3, and Article VIII, Sec. 16, of the South Dakota Constitution. The District Court granted defendants' motion for summary judgment and dismissed plaintiffs' pendent state law claims. The United States Court of Appeals for the Eighth Circuit, 714 F.2d 848, affirmed the District Court's entry of summary judgment on plaintiffs' facial challenge to SDCL 13-34-16.2 and 13-34-16.3 under the First Amendment. The Court of Appeals ruled, however, that the District Court had failed to adequately consider plaintiffs' federal constitutional challenge to the statutes as construed and applied by defendants and remanded the case to the District Court for trial on that issue. The Court of Appeals also ruled that plaintiffs' claim based upon the South Dakota Constitution should be reconsidered by the District Court on remand. Following trial on the merits of the federal constitutional claims, the District Court certified the foregoing question to us.
As amended in 1977, the two statutes in question read as follows.
It is declared to be the policy of this state that the common good and general welfare of the state are promoted by an educated and enlightened citizenry and, to assist in achieving those goals and in accord with the child benefit doctrine, there shall be loaned without charge to all persons ages five through nineteen such nonsectarian textbooks and text-related workbooks designed for individual use as are normally furnished by the school boards of the several public school districts of this state to the students enrolled in the public schools of such respective districts. It is further declared to be the policy of this state that, in the loaning of such materials to such persons, the state shall be neutral to and between all such persons.
To implement Sec. 13-34-16.2, each public school board shall loan without charge to all persons ages five through nineteen who are either enrolled in a public school, or in a school supervised in accord with chapter 13-4, or who are engaged in a course of instruction pursuant to Sec. 13-27-3, within the school district under such board's jurisdiction, or who are residing in such district but are not enrolled in any such school or engaged in any such course of instruction, such nonsectarian textbooks and text-related workbooks designed for individual use as are normally furnished by such school board to individual students enrolled in the public schools of the district under such board's jurisdiction. All such textbooks and text-related workbooks shall be approved by the respective school boards.
South Dakota Constitution, Article VI, Section 3 provides in pertinent part:
No person shall be compelled to attend or support any ministry or place of worship against his consent nor shall any preference be given by law to any religious establishment or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.
South Dakota Constitution, Article VIII, Section 16 provides:
No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state, or any county or municipality within the state, nor shall the state or any county or municipality within the state accept any grant, conveyance, gift or bequest of lands, money or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or institution aided or supported by the state.
In McDonald v. School Board of Yankton Independent School Dist. No. 1, supra, we held unconstitutional the textbook loan provisions of the then applicable statutes, which read as follows:
All textbooks shall be loaned free to all public and nonpublic school students in grades one through twelve who are enrolled in schools which are supervised in accordance with chapter 13-4. The public school board in each district shall ascertain what textbooks are needed by such students in the district from time to time and shall order the same and shall furnish such books upon request.
SDCL 13-34-16, repealed by 1977 S.D.Sess.Laws ch. 134, Sec. 3.
Textbooks loaned to children enrolled in a nonpublic school shall be textbooks which are approved by a public school board for use, whether actually used or not, in the particular public school district wherein such nonpublic school is located or in the particular public school district of which the nonpublic school student is a resident. Textbooks loaned by any public school district to nonpublic school students shall not exceed in value fifteen dollars per nonpublic school student in any single school year. Such values shall be determined by the public school district required to furnish the textbooks. The obligation provided herein as to nonpublic school students shall be the obligation of the public school district in which such nonpublic school student is a resident.
SDCL 13-34-16.1, repealed by 1977 S.D.Sess.Laws ch. 134 Sec. 3.
We held that these two statutes were unconstitutional under the provisions of S.D. Const. art. VI, Sec. 3, and art. VIII, Sec. 16. In reaching this holding, we pointed out that "[t]hose provisions of our constitution though not identical to any other state constitution are not mere reiterations of the Establishment Clause of the United States Constitution but are more restrictive as prohibiting aid 'in every form.' " McDonald, 90 S.D. at 607-08, 246 N.W.2d at 98. Our holding in McDonald recognized and followed the holding of this court in Synod of Dakota v. State, 2 S.D. 366, 50 N.W. 632 (1891), that S.D. Const. art. VI, Sec. 3 and art. VIII, Sec. 16 are self-executing and that they express the intent of the framers of our constitution to "prohibit in every form, whether as a gift or otherwise, the appropriation of the public funds for the benefit of or to aid any sectarian school or institution." 2 S.D. at 373-74, 50 N.W. at 635.
Defendant school districts contend, however, that McDonald is not controlling because of the differences between the present statutes and those struck down in McDonald.
Before we discuss the contentions presented by defendants and by intervenors, we recognize and give full force to the long-standing rule that statutes are presumed to be constitutional.
All presumptions are in favor of the constitutionality of a statute, and it is only when made to appear clearly, palpably, and plainly, and in such a manner as to leave no reasonable doubt or hesitation in our minds, that a statute violates some provision of the constitution that we can consistently declare it void. McDonald v. School Bd. of Yankton, etc. , 246 N.W.2d 93 (1976); Clem v. City of Yankton, 83 S.D. 386, 160...
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