Cummings v. Mickelson
| Decision Date | 28 January 1993 |
| Docket Number | No. 18162,18162 |
| Citation | 495 N.W.2d 493 |
| Parties | Doug CUMMINGS, John Kabeiseman and Roger Andal, Applicants, v. George MICKELSON, in his official capacity as Governor of the State of South Dakota, Glen A. Severson, Kathleen K. Caldwell, Respondents. |
| Court | South Dakota Supreme Court |
Doug Cummings, Sioux Falls, for applicants.
Mark Barnett, Atty. Gen., Pierre, for respondent Governor Mickelson.
Charles M. Thompson of May, Adam, Gerdes and Thompson, Pierre, for respondents Severson and Caldwell.
Applicants Cummings, Kabeiseman and Andal (hereinafter Applicants) challenge the authority of the Governor of the State of South Dakota, George S. Mickelson, to appoint two attorneys to the positions of Circuit Court Judge. The basis for this challenge is the question of when a person receiving such an appointment must establish his or her residency within the judicial circuit to which he or she is appointed as required by Art. V, Sec. 6 of the South Dakota Constitution.
Should a writ of prohibition be denied when the acts sought to be prohibited by the Governor have already occurred?
Should a writ of prohibition be denied in that the Applicants purportedly have a plain, speedy and adequate remedy in quo warranto?
Must appointees to the position of Circuit Court Judge be voting residents of his or her circuit at the time of application for appointment or prior to his or her assuming office?
The Applicants seek to have this Court exercise its constitutional authority to issue a writ of prohibition against Governor Mickelson concerning circuit court judicial vacancies in the First Judicial Circuit and the Second Judicial Circuit. These vacancies were created by the retirement of the Honorable E.W. Hertz of the First Judicial Circuit on December 20, 1992, and the Honorable Robert Heege of the Second Judicial Circuit on January 5, 1993.
Upon notification to the Governor of a judicial vacancy, the Governor is empowered, pursuant to Art. V, Sec. 7 of the South Dakota Constitution, to fill the vacancy by appointment for the balance of the term. The current term for all circuit court judges in South Dakota will expire in January of 1999.
Applications were received and reviewed by the Judicial Qualifications Commission. The Commission forwarded names of applicants it certified to be qualified for appointment to the Governor.
On November 20, 1992, Governor Mickelson announced he would appoint Glen A. Severson of Huron, South Dakota to the Second Judicial Circuit Court vacancy. 1 Huron is in the Third Judicial Circuit.
On the same day, the Governor also announced he would appoint Mark F. Marshall of Rapid City, South Dakota to fill the vacancy in the First Judicial Circuit. 2 Rapid City is in the Seventh Judicial Circuit. Mr. Marshall subsequently declined the appointment. Thereafter on December 7, 1992, Governor Mickelson announced his intention to appoint Kathleen K. Caldwell of Sioux Falls, South Dakota to fill the vacancy in the First Judicial Circuit. Sioux Falls is in the Second Judicial Circuit.
Governor Mickelson filed written appointments with the South Dakota Secretary of State on December 11, 1992. These appointments are to take effect on February 1, 1993.
On December 10, 1992, the Applicants filed with this Court an application requesting this Court to exercise its original jurisdiction and issue a writ of prohibition against the Governor's appointments. Applicant Douglas Cummings is an attorney from Sioux Falls and unsuccessfully sought the judicial vacancy in the Second Judicial Circuit. Applicant Andal is a resident of Minnehaha County. Applicant Kabeiseman is an attorney from Yankton in the First Judicial Circuit.
On December 11, 1992, the South Dakota Attorney General, on behalf of the Governor, filed a brief with this Court arguing the writ sought by the Applicants should be denied as prohibition cannot be used to challenge the right to hold public office and the actions of the Governor are now complete, thus making any claim for relief against him moot.
On December 21, 1992, this Court determined that Caldwell and Severson were indispensable real parties in interest to this proceeding and ordered them joined along with the Governor, as Respondents.
Due to the fact the appointments were scheduled to take effect on February 1, 1993, this Court accelerated its normal briefing and oral argument schedule to determine this question of public importance.
A writ of prohibition is an extraordinary remedy. S.D. Bd. of Regents v. Heege, 428 N.W.2d 535, 537 (S.D.1988). It may issue upon a showing that a public officer is acting or is about to act without or in excess of his jurisdiction, or without or in excess of the authority conferred by law. SDCL 21-30-1. It may be issued in a direct application to this Court in appropriate circumstances. Art. V, Sec. 5 of the South Dakota Constitution; Heege, supra.
It is required that an applicant for a writ of prohibition must show that he or she has no "plain, speedy and adequate remedy in the ordinary course of law" available to them. SDCL 21-30-2. Corbly v. Matheson, 335 N.W.2d 347, 348 (S.D.1983). If there is another "plain, speedy and adequate" remedy at law or in equity, equally available to an applicant, this Court has held it will not issue a writ of prohibition. Brandon Savings Bank v. Swanson, 54 S.D. 95, 222 N.W. 660, 661 (1928); Gilmore v. Sandy, 50 S.D. 247, 209 N.W. 342 (1926).
The Governor has the legal authority to fill the vacancies pursuant to Art. V, Sec. 7 of the South Dakota Constitution. He states that he has done so and that there remain no acts on his part for this Court to prohibit. 3 He argues that once Severson and Caldwell qualify for office pursuant to SDCL 3-4-7, they will become judges on February 1, 1993, pursuant to their appointment. 4
In State ex rel. Hellier v. Vincent, 20 S.D. 90, 104 N.W. 914 (1905) this Court determined that once an appointment is made by the appropriate authority, it is final or exhausted and cannot be withdrawn and exercised again unless a subsequent vacancy arises. In Burke v. Schmidt, 86 S.D. 71, 191 N.W.2d 281, 284 (1971) we noted that this doctrine specifically applies to circuit court appointments by the Governor pursuant to what is now Art. V, Sec. 7 of our Constitution and its statutory counterpart, SDCL 3-4-3.
This Court has generally held that it will not issue a writ of prohibition where the public official has already completed the acts sought to be prohibited.
The case before us is one in prohibition.... The thing sought to be prohibited has been done, and cannot be undone by any order of court.... Any adjudication which this court might make would be only an ineffectual decision of the question whether or not these petitioners were wronged by what has been fully accomplished. Under those circumstances there is nothing but a moot case remaining, and the motion to dismiss must be sustained.
Williamson v. Herseth, 78 S.D. 476, 477, 104 N.W.2d 473 (1960), quoting Jones v. Montague, 194 U.S. 147, 153, 24 S.Ct. 611, 612, 48 L.Ed. 913 (1904). See also Sioux Falls Argus Leader v. Young, 455 N.W.2d 864, 867-8 (S.D.1990); Church of Scientology v. U.S., --- U.S. ----, ----, 113 S.Ct. 447, 449, 121 L.Ed.2d 313, 319 (1992).
However, as noted in Young, supra, and prior cases, this Court has not applied the mootness doctrine in exceptional circumstances. The basis for this exception is:
The decision as to whether to retain a moot case in order to pass on a question of public interest lies in the discretion of the court and generally a court will determine a moot question of public importance if it feels that the value of its determination as a precedent is sufficient to overcome the rule against considering moot questions.
Wheeldon v. Madison, 374 N.W.2d 367, 378 (S.D.1985), quoting Stanley County School v. Stanley County Ed. Ass'n, 310 N.W.2d 162, 163 (S.D.1981). To invoke this public interest exception, three criteria must be met: (1) a general public importance; (2) probable future recurrence; and (3) probable future mootness. Young, supra, 455 N.W.2d at 868 n. 2; Sedlacek v. S.D. Teener Baseball Program, 437 N.W.2d 866, 868 (S.D.1989).
The issue before this Court is a question of general public importance. On February 1, 1993, Severson and Caldwell will begin to preside, along with their judicial colleagues, over two judicial circuits which contain nearly one-third of the state's population. The power which the people of this state have entrusted to a circuit court judge affects the people's lives, welfare and property to no small extent.
The second criteria is probable future recurrence. We take judicial notice that similar appointments have been made in the past. There is no reason to believe that they will not occur again. The Governor, by vigorously denying he has acted improperly, is clearly reserving his right to proceed in the same manner in the future.
The third criteria is probability of future mootness. The Applicants are in a Catch 22 situation. They do not know the Governor's choices until his selections are publicly announced. Simultaneously the Governor can file the appropriate papers with the Secretary of State, thus always making his actions moot by the time his choices are made public.
We conclude that the public interest exception applies and we are prepared to address the issue of residency on the merits despite the fact that as to the appointments of Severson and Caldwell, the Governor's actions are moot. 5
The Governor argues that the Applicants have a plain, speedy and adequate...
To continue reading
Request your trial
-
Poppen v. Walker, 18374
...law. It is not the baby. Statutes must conform to the Constitution, not vice versa." Cummings v. Mickelson, 495 N.W.2d 493, 507 (S.D.1993), (Henderson, J., concurring in part; dissenting in part). In determining the meaning of a constitutional provision, courts are guided by applicable rule......
-
Benson v. State
...of individual legislators are not persuasive to establish the intent of the Legislature for a particular statute. Cummings v. Mickelson, 495 N.W.2d 493, 499 n. 7 (S.D. 1993) (citing State ex rel. Cooperative Wool Growers v. Bushfield, 69 S.D. 172, 176, 8 N.W.2d 1, 3 (1943)). There are 105 l......
-
State v. Karlen
...concurring in result) (citing 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 and dissenting in part)). ¶40 In Ritchiethe Supreme Court considered the question of whether a state's interest in......
-
Sioux Falls Argus Leader v. Miller
...excess of the power of authority conferred by law upon the tribunal. S.D. Const. art. V, § 5, SDCL 21-30-1, 21-30-2; Cummings v. Mickelson, 495 N.W.2d 493, 495 (S.D. 1993). Writ of prohibition is an extraordinary remedy and is available only when there is no "plain, speedy and adequate reme......
-
Indexing the South Dakota constitutional conventions: a 21st century solution to a 125 year old problem.
..."Minority Representation" 170-72, 192, 269, 345-46 (1.) Poppen v. Walker, 520 N.W.2d 238, 242 (S.D. 1994) (citing Cummings v. Mickelson, 495 N.W.2d 493, 507 (S.D. 1993) (Henderson, J., concurring in part, dissenting in part)). (2.) State v. Opperman, 247 N.W.2d 673, 674-75 (S.D. 1976). (3.)......