South Dakota Bd. of Regents v. Meierhenry

• Decision Date: 03 July 1984
• Docket Number: 14353,Nos. 14309,s. 14309
• Citation: 351 N.W.2d 450
• Parties: 18 Ed. Law Rep. 716 SOUTH DAKOTA BOARD OF REGENTS, Applicant and Appellee, v. Judith MEIERHENRY, Secretary of the Department of Labor, Respondent and Appellant, and Melinda Sanderson (a/k/a Melinda Heegel), Loretta Metzger, Richard Kline, Real Parties in Interest, and James Zeman and the Council of Higher Education (COHE), Real Parties in Interest and Appellants.
• Court: South Dakota Supreme Court

Page 450

351 N.W.2d 450

18 Ed. Law Rep. 716

SOUTH DAKOTA BOARD OF REGENTS, Applicant and Appellee, v. Judith MEIERHENRY, Secretary of the Department of Labor Respondent and Appellant and Melinda Sanderson (a/k/a Melinda Heegel), Loretta Metzger Richard Kline, Real Parties in Interest and James Zeman and the Council of Higher Education (COHE), Real Parties in Interest and Appellants.

Nos. 14309, 14353.

Supreme Court of South Dakota.

Argued Feb. 15, 1984.

Decided July 3, 1984.

James E. Carlon of Gors & Braun, Pierre, for appellee Bd. of Regents.

Richard Dale, Asst. Atty. Gen., Pierre, for respondent and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

James McMahon of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for real party in interest Melinda Sanderson.

Karen Bjerke of Hagen & Wilka, Sioux Falls, for appellants James Zeman and the Council of Higher Educ. (COHE); Thomas K. Wilka of Hagen & Wilka, Sioux Falls, on the brief.

FOSHEIM, Chief Justice.

James Zeman, the Council of Higher Education and the Secretary of the South Dakota Department of Labor appeal the issuance of a peremptory writ of prohibition. We reverse.

The writ prohibited the secretary of labor from assuming jurisdiction over matters involving employment qualifications, salaries and discharge of professional employees at institutions under the control of the South Dakota Board of Regents. It was issued in response to grievance and unfair practice charges which had been filed with the department of labor by, or on behalf of, such professionals pursuant to SDCL ch. 3-18. Resolution of these disputes would have required the department of labor to make decisions involving the three areas prohibited by the circuit court writ.

The issue before us is whether SDCL ch. 3-18 violates Article XIV, Section 3 of the South Dakota Constitution in permitting the department of labor to exercise such jurisdiction. ¹ We approach this question mindful of the settled law that enactments of the legislature should be upheld unless they are clearly and unmistakably unconstitutional. South Dakota Board of Regents v. Meister, 309 N.W.2d 121 (S.D.1981); People in Interest of T.L.J., 303 N.W.2d 800 (S.D.1981); In Re Hinesley, 82 S.D. 552, 150 N.W.2d 834 (1967).

Article XIV, Section 3 structures a board with control over state educational institutions: ²

The state university, the agriculture college, the school of mines and technology, the normal schools, a school for the deaf, a school for the blind, and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the Governor and confirmed by the senate under such rules and restrictions as the Legislature shall provide. The Legislature may increase the number of members to nine. [Emphasis added]

With equal clarity Section 3 authorizes the legislature to restrict that control. Board of Regents v. Carter, 89 S.D. 40, 228 N.W.2d 621 (1975); See also Boe v. Foss, 76 S.D. 295, 77 N.W.2d 1 (1956); State College Development Association v. Nissen, 66 S.D. 287, 281 N.W. 907 (1938); Johnson v. Jones, 52 S.D. 64, 216 N.W. 584 (1927). It does not grant that board political autonomy. Consequently, the board of regents is not a fourth branch of government independent of legislative policies. Meister, 309 N.W.2d 121; Carter, 89 S.D. 40, 228 N.W.2d 621. Legislative powers remain. State v. Dailey, 57 S.D. 554, 234 N.W. 45 (1931).

Conversely, the legislature does not have unbridled license to regulate board of regents activity. Constitutionally authorized "rules and restrictions" must stop short of removing all power. SDCL ch. 3-18 restricts, but cannot, and does not, eradicate control. Carter, 89 S.D. 40, 228 N.W.2d 621.

SDCL ch. 3-18 was enacted in 1969 to permit organization of public employees' unions, SL 1969, ch. 88, and applies to many employees of institutions under board of regents control. SDCL 3-18-1. It defines unfair practices by a public employer and authorizes the department of labor to enforce the unfair practice provisions. SDCL 3-18-3.1 and SDCL 3-18-3.3. SDCL ch. 3-18 also authorizes the department of labor to hear and decide grievances which remain unresolved following the grievance procedure of the controlling governing body. SDCL 3-18-15.2. In short, the provisions of SDCL ch. 3-18 open the way for the department of labor to hear and decide unfair practice and grievance matters involving salaries, qualifications and discharge of employees at institutions under board of regents control.

Appellees read Article XIV, Section 3 in a manner which gives little or no significance to the "under such rules and restrictions as the Legislature shall provide" provision concerning the involved three areas. Such a reading would essentially leave a grievant without any recourse. Appellees see support in Worzella v. Board of Regents of Education, 77 S.D. 447, 93 N.W.2d 411 (1958). We find that reliance totally misplaced.

Worzella is clearly distinguishable from the issue before us. That case involved the capacity of the board of regents to delegate its constitutional control to an institution of higher learning. It did not concern the power of the legislature to restrict activities of the board. Actually, when Worzella was decided the legislature had not yet enacted either SDCL ch. 3-18 or the restrictive legislation at issue in Meister.

To hold that the board of regents was constitutionally ordained with an absolute right of control free from legislative restraint would require us to ignore the "under such rules and restrictions as the Legislature shall provide" part of Section 3. A constitutional provision, like a statute, must be read giving full effect to all of its parts. South Dakota Auto. Club Inc. v. Volk, 305 N.W.2d 693 (S.D.1981); Carter, 89 S.D. 40, 228 N.W.2d 621; Kneip v. Herseth, 87 S.D. 642, 214 N.W.2d 93 (1974); State ex rel. Oster v. Jorgenson, 81 S.D. 447, 136 N.W.2d 870 (1965).

Appellees seek to buttress their position from language in Carter that the ability of the Regents to unilaterally set salaries, discharge employees, or establish employment qualifications is left intact. In Carter we concluded, as we do now, that the Board's basic right of control is left untouched, and SDCL 3-18 is but a permissible restriction on the exercise of that control. We did, however, in so concluding, misread Worzella which is evidenced in this Carter excerpt:

In addition, Worzella v. Board of Regents of Education, supra, states that a statute allowing the board to delegate its authority must stop short of "empower(ing) the Board to delegate away all of its powers or its constitutional duty of control."

Id. 89 S.D. at 52, 228 N.W.2d at 628. The referred to passage in Worzella reads:

Under SDC 15.0714 the Board of Regents "may delegate provisionally to the president, dean, principal, or faculty of any school under its control, so much of the authority conferred by this section as in its judgment seems proper..." This is a limited power. It does not empower the Board to delegate away all of its powers or its constitutional duty of control. Under its provisions the Board may only delegate the limited authority conferred on it by the same section.

Worzella, 77 S.D. at 451, 93 N.W.2d at 413. Clearly in that Worzella language, we did not discuss the authority of the legislature to restrict board of regents control. Rather it concerns the permissible scope of the regents authority to delegate powers conferred upon it by a statute.

In Carlson v. Hudson, 277 N.W.2d 715, 717 (S.D.1979), without reference to Carter, we likewise stated that the control vested in the regents by the constitution "unequivocally includes the unfettered right to employ and discharge its employees." That conclusion was based on our reading of this Worzella language:

The above statutory provisions merely confirm and clarify the Board of Regents' constitutional power to employ and dismiss all officers, instructors, and employees at all institutions under its control. These provisions become a part of every contract of employment entered into by the Board. Gillan v. Board of Regents of Normal Schools, 88 Wis. 7, 58 N.W. 1042, 24 L.R.A. 336. It cannot be restricted, surrendered, or delegated away. Our constitution prescribes that our state university and colleges "shall be under the control" of the Board of Regents. Without the right to employ, and the power to discharge, its employees the Board loses its constitutional right of control.

Worzella, 77 S.D. at 450-451, 93 N.W.2d at 413. Viewed likewise in the factual context of Worzella, that passage simply means the board of regents was without power to restrict, surrender or delegate its control. It did not relate to the constitutional capacity of the legislature to restrict that control. We do not confirm that board of regents power to employ and discharge is "unequivocally unfettered." As we said in Johnson v. Jones, 52 S.D. 64, 216 N.W. 584 (1927), it can be fettered by statutory provisions. We nevertheless recognize the correctness of the result in Hudson. We there held that the legislature could not statutorily establish a tenure system for employees of the board of regents. Any other conclusion would have effectively nullified all control of the regents over that area of activity. As noted, legislative restrictions must stop short of erasing regent control.

Our most recent interpretation of Article XIV, Section 3 was South Dakota Board of Regents v. Meister, 309 N.W.2d 121 (S.D.1981). In Meister, we refocused on the "rules and restrictions" clause. We held that the legislature could constitutionally permit the personnel policy board of the career service commission to assume jurisdiction over grievances of nonprofessional employees of board of regents institutions pursuant to several sections of the Career Services Act. SDCL 3-6A-12, 3-6A-37, 3-6A-38. Whet...