Gray v. Gienapp
| Decision Date | 18 January 2007 |
| Docket Number | No. 24407.,24407. |
| Citation | 2007 SD 12,727 N.W.2d 808 |
| Parties | Bob GRAY, President Pro Tempore of the South Dakota State Senate and Members of the South Dakota State Senate, Applicants, v. David R. GIENAPP, Circuit Judge, Respondent, and Daniel Sutton, Intervenor and Respondent. |
| Court | South Dakota Supreme Court |
[¶ 1.] On January 10, 2007, the circuit court for the Third Judicial Circuit, venued in Moody County, the Honorable David Gienapp presiding, filed an alternative writ of prohibition. It ordered Bob Gray, the president pro tempore of the South Dakota Senate, and the members of the Senate to "desist and refrain" "during the 2007 South Dakota Legislative Session under Proposed Senate Rules on Discipline and Expulsion of Members" from holding any hearings regarding Senator Dan Sutton's alleged sexual misconduct with a senate page. The writ also restrained Gray and the Senate from disclosing the contents of the Division of Criminal Investigation's investigation "in any public manner or fashion."
[¶ 2.] On January 11, 2007, the Senate applied for a writ of prohibition from this Court. It asks this Court to declare that the alternative writ of prohibition is without force and effect, thereby allowing the Senate to proceed to resolve the legislative issues regarding Senator Sutton.
[¶ 3.] In February 2006 an eighteen-year-old senate page contacted the attorney general and alleged that Dan Sutton, a state senator for District 8, made sexual advances and inappropriately touched him at a Ft. Pierre motel. The complaint was referred to the Division of Criminal Investigation. No criminal charges have been filed against Senator Sutton.
[¶ 4.] On October 11, 2006, Senator Lee Schoenbeck, then president pro tempore of the Senate, was contacted by the father of the page regarding the allegations. Schoenbeck wrote to Senator Sutton the next day and advised him:
We do not have authority to bring criminal charges. The worst that the senate can do is to expel. The full legislature would have the power to impeach. I will formally refer this to either the Executive Board or the Governor in one week. If you are no longer a member of the state senate on October 18th, there will be no further action for the senate to take on this matter.
Senator Sutton did not resign by October 18.
[¶ 5.] On October 27, 2006, Governor M. Michael Rounds, pursuant to Article IV, § 3 of the South Dakota Constitution and in response to a request of the Senate's executive board, issued an Executive Proclamation calling the Senate into a special session on November 27, 2006. The purpose of the special session was "to hear, investigate and deliberate allegations concerning the conduct of Senator Dan Sutton and to take such action or actions as the Senate of the South Dakota State Legislature deems, in its collective judgment, to be necessary[.]"
[¶ 6.] On November 7, 2006, Senator Sutton was reelected to the Senate for the 2007 and 2008 sessions by District 8 voters. He was also served with a written notice of the special session to "investigate public allegations of conduct unbecoming a State Senator pursuant to Article III, § 9 of the South Dakota Constitution and the Rules of the South Dakota Legislature and Rules of the South Dakota Senate[.]"
[¶ 7.] Senate leaders released their proposed rules for the special session on November 13, 2006. Senator Sutton resigned from the 2006 Senate the next day, November 14, 2006, and announced that he intended to reclaim his seat in January 2007 pursuant to his November 7, 2006 reelection. The special session was cancelled.
[¶ 8.] The Eighty-Second session of the legislature convened on January 9, 2007. Senator Sutton took the oath of office and was seated. The Senate also voted to adopt the permanent joint rules and the permanent Senate rules of the Eighty-First legislative session as the temporary rules of the Eighty-Second legislative session.
[¶ 9.] Joint Rule 1-11 of the Eighty-First legislative session provides:
Either house may punish its members for disorderly behavior and, with concurrence of two-thirds of all members elected, expel a member. The reason for such expulsion shall be entered on the journal with the names of the members voting on the question.
[¶ 10.] In addition, the joint rules of the Eighty-First legislative session include a chapter on decorum. While many of the sections in this chapter deal with decorum within either chamber or gallery, Rule 1A-4 prohibits sexual harassment and provides, in part, "[a]ll members shall avoid any action or conduct which could be viewed as sexual harassment."
[¶ 11.] Moreover, Senate Rule S5-2 provides "Mason's Manual of Legislative Procedure governs the proceedings of the Senate in all proceedings of the Senate in cases not covered by these rules or the Joint Rules." The House has a similar rule. Rule H4-2. Mason's Manual is a widely recognized authority on state legislative and parliamentary procedures. Chapter 50 of this manual, which the Senate adopted, deals with the election and qualifications of members and the discipline and expulsion of members.
[¶ 12.] On January 10, 2007, the Senate adopted the temporary Senate rules as the permanent rules of the Eighty-Second legislative session. It also adopted rules regarding the discipline and expulsion of members and amended these to the Senate rules as a new chapter. Senator Sutton was excused from this vote.
[¶ 13.] The rules regarding the discipline and expulsion of members allow any senator to move for the establishment of a select committee to investigate the conduct of any other senator. Upon passage of the motion by a majority vote, a nine member committee is formed. The rules deal with committee meetings, notice, procedures in committee, subpoena power, contempt, and the effect of the investigated senator's resignation. Under these rules a member being investigated receives notice, is entitled to attend all meetings with legal counsel, and is afforded "full opportunity to present the member's position, to present witnesses in support of the member's position, and . . . to confront and question witnesses called by the committee[.]" Rule 8-4(3). Any action to expel, censure, discipline, or exonerate a senator is proposed in a committee report to the Senate. The full Senate then considers whether to adopt the committee report. Expulsion requires a two-thirds majority vote. Censure or discipline requires a three-fifths vote. Exoneration requires a majority vote.
[¶ 14.] At this point there has been no motion to establish a select committee on discipline and expulsion to investigate the allegations against Senator Sutton. On January 10, 2007, the day the Senate adopted its rules, Senator Sutton went to the circuit court where he applied for and received, without prior notice, an alternative writ of prohibition ordering the Senate to refrain from holding any hearings regarding Senator Sutton under the rules of discipline and expulsion.
[¶ 15.] We set forth the standard of review for this type proceeding in Doe v. Nelson, 2004 SD 62, ¶ 7, 680 N.W.2d 302, 305:
The ordinary standard of review of a trial court's decision involving the request to issue a writ of prohibition is abuse of discretion. H & W Contracting v. City of Watertown, 2001 SD 107, ¶ 24, 633 N.W.2d 167, 175. In this case, however, there were no issues of fact for the trial court to resolve. The issues before it were solely those of statutory and constitutional interpretation, thus being questions of law. As such, an erroneous interpretation of law if prejudicial, may be by definition an abuse of discretion. Cf. State v. Ashbrook, 1998 115, ¶ 6, 586 N.W.2d 503, 506.
[¶ 16.] Did a circuit court judge of the Third Judicial Circuit have jurisdiction to prohibit the Senate, while the legislature is in session, from commencing legislative proceedings under rules adopted by it, to investigate allegations against Senator Sutton, one of its members, for misconduct, including sexual misconduct involving a former employee, a senate page?
[¶ 17.] Article II of the South Dakota Constitution provides:
The powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this Constitution.
Article II explicitly states the separation of powers doctrine and encompasses three prohibitions:
(1) no branch may encroach on the powers of another, (2) no branch may delegate to another branch its essential constitutionally assigned functions, and (3) quasi-legislative powers may only be delegated to another branch with sufficient standards.
State v. Moschell, 2004 SD 35, ¶ 14, 677 N.W.2d 551, 558. "Each branch, so long as it acts within the limitations set by the constitution, may exercise those powers granted to it by the constitution without interference by the other branches of government." State ex rel. Walter v. Gutzler, 249 N.W.2d 271, 273 (S.D.1977).
[¶ 18.] This Court has both constitutional and statutory authority to issue a writ of prohibition to "arrest" or halt the proceedings of any tribunal or lower court under appropriate circumstances. Sioux Falls Argus Leader v. Miller, 2000 SD 63, ¶ 4, 610 N.W.2d 76, 81 . The supreme and circuit courts may issue a writ of prohibition "to an inferior tribunal, or to a corporation, board or person, in all cases where there...
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