CERTIFICATION OF A QUESTION OF LAW

• Decision Date: 26 July 2000
• Docket Number: No. 21504.,21504.
• Citation: 615 N.W.2d 590,2000 SD 97
• Parties: In the Matter of the CERTIFICATION OF A QUESTION OF LAW FROM THE UNITED STATES DISTRICT COURT, DISTRICT OF SOUTH DAKOTA, WESTERN DIVISION, Pursuant to the Provisions of SDCL 15-24A-1, and Concerning Federal Actions Civ. 00-3008 and Civ. 00-3015 (D.S.D.), Titled as Follows: Steven C. Emery, Rocky Le Compte, and James Picotte, Plaintiffs, v. Roger Hunt, in his official capacity as Speaker of the South Dakota House of Representatives, South Dakota House of Representatives, Carole Hillard, in her official capacity as President of the South Dakota Senate, South Dakota Senate, and Joyce Hazeltine, in her official capacity as Secretary of the State of South Dakota, Defendants. United States of America, Plaintiff, v. State of South Dakota, William J. Janklow, in his official capacity as Governor of the State of South Dakota, Harold Halverson, in his official capacity as the President Pro Tempore of the Senate of the State of South Dakota, Roger Hunt, in his official capacity as the Speaker of the House of Representatives of the State of South Dakota, Mark W. Barnett, in his official capacity as Attorney General of the State of South Dakota, and County Auditors for Butte, Corson, Dewey, Harding, Perkins and Ziebach Counties, in their official capacities, Defendants.
• Court: South Dakota Supreme Court

615 N.W.2d 590

2000 SD 97

In the Matter of the CERTIFICATION OF A QUESTION OF LAW FROM THE UNITED STATES DISTRICT COURT, DISTRICT OF SOUTH DAKOTA, WESTERN DIVISION, Pursuant to the Provisions of SDCL 15-24A-1, and Concerning Federal Actions Civ. 00--3015 (D.S.D.), Titled as Follows:

Steven C. Emery, Rocky Le Compte, and James Picotte, Plaintiffs, v. Roger Hunt, in his official capacity as Speaker of the South Dakota House of Representatives, South Dakota House of Representatives, Carole Hillard, in her official capacity as President of the South Dakota Senate, South Dakota Senate, and Joyce Hazeltine, in her official capacity as Secretary of the State of South Dakota, Defendants.

United States of America, Plaintiff, v. State of South Dakota, William J. Janklow, in his official capacity as Governor of the State of South Dakota, Harold Halverson, in his official capacity as the President Pro Tempore of the Senate of the State of South Dakota, Roger Hunt, in his official capacity as the Speaker of the House of Representatives of the State of South Dakota, Mark W. Barnett, in his official capacity as Attorney General of the State of South Dakota, and County Auditors for Butte, Corson, Dewey, Harding, Perkins and Ziebach Counties, in their official capacities, Defendants.

No. 21504.

Supreme Court of South Dakota.

Considered on Briefs July 13, 2000.

Decided July 26, 2000.

Laughlin McDonald and Bryan Sells of American Civil Liberties Foundation, Atlanta, Georgia, Patrick Duffy, Rapid City, South Dakota, Attorneys for plaintiffs Steven C. Emery, Rocky LeCompte and James Picotte.

Ted L. McBride, United States Attorney, Rapid City, South Dakota, Bonnie Ulrich, Assistant United States Attorney, Sioux Falls, South Dakota, Bill Lann Lee, Acting Assistant Attorney General for Civil Rights, Joseph D. Rich, Christopher Coates and Richard Dellheim of Voting Section-Civil Rights Division, Washington, D.C., Attorneys for plaintiff United States.

Mark Barnett, Attorney General, John P. Guhin, Deputy Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendants.

AMUNDSON, Justice.

[¶ 1.] Pursuant to SDCL 15-24A-1, District Judge Charles B. Kornmann of the United States District Court, District of South Dakota, certified to this Court the following question:

Whether the South Dakota Legislature acted in violation of Article III, Section 5 of the South Dakota Constitution, by the enactment of Chapter 21, Session laws of 1996, now codified as SDCL 2-2-28.

In his certification, Judge Kornmann indicated that it appears there is no controlling precedent on this issue in the decisions of this Court. As set forth below, the question is controlled by our decision in In re Opinion of Judges, 61 S.D. 107, 246 N.W. 295 (1933) and is answered in the affirmative.

FACTS AND PROCEDURE

[¶ 2.] Plaintiffs in the District Court action are the United States and individual plaintiffs, Steven C. Emery, Rocky LeCompte, and James Picotte. The individual plaintiffs are voters and residents of Dewey County within legislative District No. 28 and are enrolled members of the Cheyenne River Sioux Tribe. They brought action in United States District Court against defendants who are Speaker of the South Dakota House of Representatives Roger Hunt, the South Dakota House of Representatives, President of the South Dakota Senate Carole Hillard, the South Dakota Senate, and Secretary of the State of South Dakota Joyce Hazeltine, all in their official capacities. They claimed that the current at-large election plan in legislative District No. 28 violates Section 2 of the Voting Rights Act of 1965, 42 USC § 1973, as amended, and is unauthorized by Article III, Section 5 of the South Dakota Constitution. The United States filed a similar action limited to a claim of violation of the federal statute. Defendants in that action are the State of South Dakota, Governor William Janklow, President Pro Tempore of the South Dakota Senate Harold Halverson, Speaker of the House of Representatives Roger Hunt, Attorney General of the State of South Dakota Mark Barnett, Secretary of the State of South Dakota Joyce Hazeltine, and the county auditors for Butte, Corson, Dewey, Harding, Perkins and Ziebach counties, all in their official capacities.

[¶ 3.] Following consolidation of these cases and upon motion by the State defendants, the District Court certified the above question of state law to this Court, which we accepted.

ANALYSIS AND DECISION

[¶ 4.] Article III, Section 5 of the South Dakota Constitution sets forth an affirmative mandate to the South Dakota Legislature for apportionment of its membership. It provides:

The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.

(emphasis added). In 1991, following the 1990 decennial census, the Legislature enacted SDCL 2-2-28, which then provided:

Each representative district as provided for in § 2-2-26 is entitled to two representatives. However, in order to protect minority voting rights, District No. 28 shall consist of two single-member house districts as follows:

(1) District No. 28A—Dewey and Ziebach counties and that portion of Corson county consisting of Bullhead, Kenel, Liberty, Little Oak, Little Eagle, McLaughlin, Ridgeland and Wakpala precincts.

(2) District No. 28B—Harding and Perkins counties and that portion of Corson county consisting of Delaney, Grand Valley, Lincoln, McIntosh, Morristown and Wautauga precincts, and the cities of McIntosh, McLaughlin and Morristown, and that portion of Butte county west of U.S. Highway 85, north of U.S. Highway 212 and east of S.D. Highway 79, excluding the cities of Belle Fourche and Nisland.

In 1996, the Legislature amended this statute as follows: "Each representative district as provided for in § 2-2-26 is entitled to two representatives." We are asked to determine whether this 1996 amendment violates Article III, Section 5 of our Constitution which mandates apportionment in 1991 and every ten years thereafter. Clearly, the 1996 amendment reapportions legislative membership by eliminating Districts No. 28A and 28B.

[¶ 5.] "The Legislature is vested with authority to deal with any subject within the scope of civil government, except insofar as it is restrained by constitutional provisions, or by the valid treaties and acts of Congress." Kane v. Kundert, 371 N.W.2d 172, 174 (S.D.1985) (citations omitted). "If constitutional power does not exist, it cannot be acquired by legislative assertion." State ex rel. Oster v. Jorgenson, 81 S.D. 447, 450, 136 N.W.2d 870, 871 (1965). " `The Constitution is the mother law. It is not the baby. Statutes must conform to the Constitution, not vice versa.' " Poppen v. Walker, 520 N.W.2d 238, 242 (S.D.1994) (quoting Cummings v. Mickelson, 495 N.W.2d 493, 507 (S.D.1993) (Henderson, J., concurring in part; dissenting in part)).

[¶ 6.] In In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295 (1933), we answered an inquiry from the Governor regarding the authority of the Legislature to enact a reapportionment measure in the 1933 legislative session. The question required interpretation of Article III, Section 5 of the South Dakota Constitution, which at that time read, in relevant part, that the legislature shall apportion its membership in 1895 and every ten years thereafter and at no other time.¹ When this question was raised, the first legislature meeting after the last federal census was the Twenty-Second Legislature, which met in 1931. It failed to make an apportionment as required by the Constitution. Having failed to perform this duty, the question then became whether the Twenty-Third Legislature had the authority to exercise this duty and make an apportionment. We answered in the affirmative, noting the duty continues until performed.

[¶ 7.] In arriving at this answer, the constitutions of several other states were examined and found to contain language similar to our own regarding apportionment. We noted: "It seems to be held by all the courts which have had occasion to pass upon the matter that an affirmative mandate for legislative action at a specified time is an implied prohibition of action at any other time." Opinion, 61 S.D. at 111, 246 N.W. at 296 (emphasis added). The fact that the prohibition in our constitutional provision was expressed rather than implied was not held to be a valid distinction. Id. We continued:

The framers of our Constitution did not, we think, have in mind the possibility that a Legislature might disobey the constitutional mandate, and might fail to make an apportionment at the time when that duty was affirmatively imposed upon them by the Constitution. It seems quite apparent that the framers of the Constitution in providing for apportionment `at its first regular session, after each enumeration ... but at no other time,' meant to say only this and nothing more: That the Legislature should make an apportionment at the first session after an enumeration as affirmatively required by the Constitution, and having so done (as the Constitution makers assumed they would) they should not again exercise such power until

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