McIntyre v. Wick, s. 19898

• Court: Supreme Court of South Dakota
• Citation: 558 N.W.2d 347,1996 SD 147
• Docket Number: Nos. 19898,19899,s. 19898
• Parties: John McINTYRE, Plaintiff, v. Hal G. WICK, Defendant. Douglas KAZMERZAK, Plaintiff, v. Arthur F. FRYSLIE, Defendant. . Original Proceedings
• Decision Date: 31 December 1996

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558 N.W.2d 347 1996 SD 147 John McINTYRE, Plaintiff,
v.
Hal G. WICK, Defendant.
Douglas KAZMERZAK, Plaintiff,
v.
Arthur F. FRYSLIE, Defendant. Nos. 19898, 19899. Supreme Court of South Dakota. Original Proceedings Argued Dec. 20, 1996.
Decided Dec. 31, 1996.

Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for plaintiffs.

Scott N. Heidepriem of Johnson, Heidepriem, Miner & Marlow, Sioux Falls, for defendants.

MILLER, Chief Justice.

ACTION

¶1 Plaintiffs John McIntyre (No. 19898) and Douglas Kazmerzak (No. 19899) filed separate petitions for writs of certiorari seeking our review of the recounts in their respective state legislative elections. We issued a writ of certiorari in each case limited to review of the recount proceedings pursuant to SDCL ch 12-21. Defendants Hal G. Wick (No. 19898) and Arthur F. Fryslie (No. 19899) have asked us to dismiss each action and quash each writ, asserting that the South Dakota House of Representatives has the exclusive jurisdiction to judge the election returns and qualifications of its members. For the reasons set forth in this opinion, we conclude that while the legislature has the exclusive authority to finally determine who will be seated in a legislative election contest proceeding, this Court has the jurisdiction to review irregularities and errors in the tabulation of votes in any recount proceeding.

FACTS

# 19898 McIntyre v. Wick

¶2 In the 1996 general election in Legislative District 12, there were four candidates for two seats in the South Dakota House of Representatives: Democrats John R. McIntyre and Dick Casey; and, Republicans Hal Wick and Judy Rost. The vote tally of the election was:

McIntyre 4195 votes 24.73%
                Casey 3889 votes 22.93%
                Wick 4191 votes 24.71%
                Rost 4687 votes 27.63%
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                 16962
                

¶3 McIntyre was initially declared to have been elected by a four-vote margin. Wick petitioned for a recount in accordance with SDCL 12-21-12. The recount was conducted in the presence of representatives for both candidates. The results were certified on December 4, 1996, and showed that Wick had been elected by one vote.

McIntyre 4191 votes 24.71%
                Casey 3891 votes 22.94%
                Wick 4192 votes 24.71%
                Rost 4689 votes 27.64%
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                 16963
                

¶4 McIntyre delivered timely written notice to Wick of his intention to initiate a legislative contest pursuant to SDCL 12-22-26. Pursuant to SDCL 12-21-47, McIntyre also petitioned this Court for a writ of certiorari to review the recount. This Court issued the writ based upon SDCL 12-21-50. McIntyre disputes Exhibits 37, 32, 33 and 4 while Wick disputes Exhibit 22. (See Exhibits attached to this opinion.)

# 19899 Kazmerzak v. Fryslie

¶5 In the 1996 general election in Legislative District 6 (composed of Clark, Miner, Kingsbury, Hamlin and part of Codington County), the candidates for two seats in the House of Representatives on the Republican ticket were Joe Lakness and Arthur F. Fryslie; the Democratic candidates were Roger Lee and Douglas Kazmerzak. On November 5, 1996, the election night totals gave a thirteen-vote margin to Kazmerzak:

Lee 6506 votes 32.95%
                Kazmerzak 4526 votes 22.92%
                Lakness 4198 votes 21.26%
                Fryslie 4513 votes 22.86%
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                 19743
                

¶6 Fryslie asked for a recount. The recount reversed Kazmerzak's win, changing the tally to:

Lee 6520 votes 33.00%
                Kazmerzak 4519 votes 22.88%
                Lakness 4195 votes 21.24%
                Fryslie 4521 votes 22.89%
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                 19755
                

¶7 Kazmerzak, like McIntyre, delivered timely written notice of his intention to initiate a legislative contest pursuant to SDCL 12-22-26. He also petitioned this Court for a writ of certiorari to review the recount. SDCL 12-21-47. We issued the writ. SDCL 12-21-50.

¶8 Kazmerzak contends that auditors in Kingsbury, Hamlin, and Clark counties

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counted certain ballots differently than auditors in Miner and Codington counties. The problem arose when voters marked the ballot at the head of a column indicating a straight party ticket vote and also marked the ballot next to the name of one candidate in the same political party but not the other in the section of the ballot devoted to the legislative race. In two counties, only the candidate whose name was marked was given a vote, while in three counties both of the party's candidates were given a vote pursuant to the straight ticket. JURISDICTION

¶9 Defendants have moved to quash the writs of certiorari issued to review the recount proceedings and have summarily responded to plaintiffs' contentions by arguing this Court has no jurisdiction whatsoever to act in this arena. We disagree. We hold that while the legislature has the exclusive authority to finally determine who will be seated in a legislative election contest proceeding, this Court has jurisdiction to review irregularities and errors in the tabulation of votes in any recount proceeding.

¶10 Defendants rely upon the following language from South Dakota Constitution Article III, § 9:

Each house shall be the judge of the election returns ¹ and qualifications of its own members.

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Defendants contend the plain language of this provision makes each house of the legislature the exclusive judge of disputed legislative elections and that the principle of separation of powers forecloses any involvement by the judiciary with this exclusive legislative function. However, such oversimplification would require this Court to ignore jurisdiction and authority granted to it under another provision of our state constitution:

The Supreme Court shall have such appellate jurisdiction as may be provided by the Legislature, and the Supreme Court or any justice thereof may issue any original or remedial writ which shall then be heard and determined by that court.

S.D. Const. art. V, § 5.

¶11 Here, plaintiffs have specifically invoked this Court's jurisdiction to issue writs of certiorari to review the proceedings of recount boards pursuant to SDCL 12-21-47 and 12-21-48(1). SDCL 12-21-47 provides in pertinent part:

Whenever any candidate is aggrieved by the final determination made as a result of any recount, he may have the proceedings of such recount board reviewed upon certiorari as provided by this chapter[.]

SDCL 12-21-48(1) provides:

Original jurisdiction of such certiorari proceeding shall be as follows:

(1) Where the same involves a submitted or referred question voted upon in more than one county, or the nomination or election of presidential electors, United States senator, representative in Congress, member of the Legislature, or any state or judicial officer, in the Supreme Court[.]

(emphasis supplied). We decline defendants' invitation to ignore the responsibilities imposed upon us by South Dakota Constitution Article V, § 5 and SDCL 12-21-47 and 12-21-48. ² Accordingly, we must reconcile these constitutional and statutory provisions with South Dakota Constitution Article III, § 9. See South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693 (S.D.1981)(in construing a constitutional provision court must give regard to whole instrument, must seek to harmonize the various provisions, and must, if possible, give effect to all the provisions). See also State v. Heinrich, 449 N.W.2d 25, 27 (S.D.1989)(this Court will uphold the statute unless its unconstitutionality is shown beyond a reasonable doubt); In re Certification of Question of Law (Elbe), 372 N.W.2d 113, 116 (S.D.1985)(statutes are presumed to be constitutional).

¶12 We agree with defendants that ascertaining the "plain meaning" is the primary component of constitutional interpretation. See Poppen v. Walker, 520 N.W.2d 238(S.D.1994)(Supreme Court has right to construe constitutional provision in accord with its plain meaning). However, many courts have wrestled to define the precise limitations imposed upon their jurisdiction by "plainly worded" constitutional provisions empowering a legislative body to judge the election and qualification of its members. See, e.g., Annotation, Jurisdiction of Courts to Determine Election or Qualifications of Member of Legislative Body, and Conclusiveness of its Decision, as Affected by Constitutional or Statutory Provision Making Legislative Body the Judge of Election and Qualification of its Own Members, 107 ALR 205 (1937).

¶13 The United States Supreme Court grappled with this issue in Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972). Hartke won election to the United States Senate from Indiana and his opponent, Roudebush, filed a petition for a recount by a judicially appointed commission. Hartke sought a federal injunction against the recount on the basis that it would be prohibited by Article I, § 5, of the Constitution of the United States which provides in pertinent part:

Each house shall be the judge of the elections, returns and qualifications of its own members[.]

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The injunction was granted and the issue was appealed to the United States Supreme Court which held:

Indiana has found, along with many other States, that one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount.... A recount is an integral part of the Indiana electoral process and is within the ambit of the broad powers delegated to the States by Art. I, § 4.

It is true that a State's verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate's power to judge elections and returns. But a recount can be said to "usurp" the Senate's function only if it frustrates the Senate's ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.

* * *

For the reasons expressed, we conclude that Art. I, § 5, of the Constitution, does not prohibit Indiana from conducting a recount of...