In re Request of Governor Noem, 102120 SDSC, 29441

Docket Nº:29441
Opinion Judge:David Gilbertson, Chief Justice.
Party Name:IN RE: THE REQUEST OF GOVERNOR KRISTI NOEM FOR AN ADVISORY OPINION IN THE MATTER OF THE INTERPRETATION OF SOUTH DAKOTA CONSTITUTION AND STATE LAWS REGARDING ELIGIBILITY FORCRF GRANT PROGRAMS
Judge Panel:Janine M. Kern, Supreme Court Justice, Steven R. Jensen, Supreme Court Justice, Patricia J. DeVaney, Supreme Court Justice. Justice Mark E. Salter deeming himself disqualified did not participate.
Case Date:October 21, 2020
Court:Supreme Court of South Dakota

2020 S.D. 58

IN RE: THE REQUEST OF GOVERNOR KRISTI NOEM FOR AN ADVISORY OPINION IN THE MATTER OF THE INTERPRETATION OF SOUTH DAKOTA CONSTITUTION AND STATE LAWS REGARDING ELIGIBILITY FORCRF GRANT PROGRAMS

No. 29441

Supreme Court of South Dakota

October 21, 2020

REQUEST RECEIVED OCTOBER 13, 2020

ORIGINAL PROCEEDING

ADVISORY OPINION

David Gilbertson, Chief Justice.

TO HER EXCELLENCY, KRISTI NOEM, THE GOVERNOR OF THE STATE OF SOUTH DAKOTA.

[¶1.] Pursuant to Article V, § 5 of the South Dakota Constitution, 1 you have requested an advisory opinion from this Court on whether the South Dakota Constitution or any state law prohibits a current state legislator from being eligible to receive funds from coronavirus relief fund (CRF) Grant Programs.

[¶2.] Pursuant to § 5001 of the Coronavirus Aid, Relief, and Economic

Security Act (CARES Act), South Dakota received $1, 250, 000, 000 in federal funds (CRF funds) to cover necessary expenditures due to the COVID-19 public health emergency. During a special session on October 5, 2020, the South Dakota Legislature passed House Bill 1001 (HB 1001) and adopted Senate Concurrent Resolution 601 (SCR 601) to address the expenditure of these funds.

[¶3.] HB 1001 revised the general appropriations act to include federal expenditure authority for the CRF funds. SCR 601 authorized expenditures made prior to October 5, 2020, and for the unspent and unobligated CRF funds provided recommended uses through grant programs administered by the Governor for: businesses, health care providers, non-profits, and qualified individuals that have been impacted by COVID-19.

[¶4.] SDCL 4-8-17 provides: The Governor is authorized and empowered to accept on behalf of the state any appropriations made or moneys allotted to the state by the United States of America, as well as the provisions of any act of Congress appropriating or allotting such funds to the state to be used in cooperation with departments of the federal government and appropriations and acts of Congress.

The funds received for the State of South Dakota pursuant to the provisions of this section shall be administered and expended under the immediate supervision of the Governor through such state departments as he [sic] shall designate for that purpose, and shall be deposited in the state treasury to be paid out by warrants drawn by the state auditor on vouchers approved by the Governor.

[¶5.] Your request to this Court states that in administering the grant programs described in SCR 601, an application agreeing to the terms of the program is required. You further state that "A contract will be required in which the recipient agrees, among other terms and conditions, to expend its grant in accordance with the CARES Act and other restrictions provided for in federal law." According to SCR 601, "Applications [are] proposed to open October 12, 2020, and close on October 23, 2020."

[¶6.] You have received inquiries from current state legislators as to their eligibility to receive funds from one or more of the grant programs. You ask: Assuming all other criteria is met to qualify, does the South Dakota State Constitution or any state law prohibit a current state legislator from being eligible to receive funds from a CRF Grant Program.

B.

[¶7.] The Court must first determine whether it is appropriate to issue an advisory opinion. You contend that this is an important issue of law involved in the exercise of your executive power pursuant to SDCL 4-8-17. You also contend that this is a solemn occasion because: Both the current pandemic and the large allocation of federal funds are unprecedented. Considering the proper expenditure of public funds, the potential conflict of interest, and the doctrine of separation of powers, this is a matter of...

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