#26089
2011 S.D. 44
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
IN RE: THE REQUEST OF GOVERNOR DENNIS DAUGAARD
FOR AN ADVISORY OPINION IN THE MATTER OF THE
INTERPRETATION OF SOUTH
DAKOTA CONSTITUTION
ARTICLE V, §§ 2 and 6
* * * *
ORIGINAL PROCEEDING
* * * *
REQUEST RECEIVED JULY 13, 2011
OPINION FILED 07/26/11
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ADVISORY OPINION
TO HIS EXCELLENCY, DENNIS DAUGAARD, THE GOVERNOR OF THE STATE
OF SOUTH DAKOTA.
[¶1.] Pursuant to South Dakota Constitution article V, § 5 you have
requested an advisory opinion from the Supreme Court on two important questions
of law dealing with the eligibility requirements for individuals seeking appointment
to the South Dakota Supreme Court. You ask:
1. What actions or intent are sufficient to satisfy the
requirement of Article V, §§ 2 and 6 that justices of the
Supreme Court be voting residents within the district from
which they are appointed?
2. At what point in time, relative to the appointment or the
assumption of the position on the Supreme Court, must these
actions be undertaken or intentions be formed?
[¶2.] In 2009 Governor M. Michael Rounds posed questions relating to
Supreme Court eligibility to this Court in his request for an advisory opinion. In re
Request of Governor M. Michael Rounds for an Advisory Opinion in the Matter of
the Interpretation of South Dakota Constitution Article V, Section 5, #25467,
December 3, 2009 (unpublished). The Court declined to answer the request because
there was no vacancy on the Supreme Court that the Governor was required to fill.
We noted:
At this time there is no vacancy on the Supreme Court that you
are required to fill. Accordingly, there is no contemplated
exercise of your executive power as required by Article V, § 5. In
addition, this matter does not present a solemn occasion because
there is little likelihood of the circumstances surrounding your
questions arising during the time remaining in your term. Any
opinion offered by this Court at this time would be based merely
upon speculation. Such an opinion may not be conclusive on the
rights of future parties and thus may not be binding on anyone.
Although we realize your question is primarily one of law, the
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factual circumstances presented in the course of an actual
vacancy, application, or proposed appointment may better inform
our decision. An opinion at this time could unwittingly hamper
your successor in a manner unforeseeable at this juncture. We
decline to do this.
Id.
[¶3.] Currently, however, there is a vacancy as of June 8, 2011 on the
Supreme Court created by the retirement of Justice Judith K. Meierhenry. SDCL 3-
4-1(2) (“Every office shall become vacant on the happening of . . . resignation[.]”).
A vacancy, as defined by law, in the office of a Supreme Court
justice or circuit court judge, shall be filled by appointment of
the Governor from one of two or more persons nominated by the
judicial qualifications commission.
S.D. Const. art. V, § 7; SDCL 3-4-3(1). In accordance with Article V, § 7, the
Judicial Qualifications Commission has provided you with a list of nominees for the
position vacated by Justice Meierhenry’s retirement. Justice Meierhenry served
from the Fourth Supreme Court District1 and the person you appoint will as well.
Several of the people that the Judicial Qualifications Commission nominated for
that position, however, are not residents of the Fourth Supreme Court District as of
the date of your letter. The crux of your request is the timing of when a nominee for
1. SDCL 16-1-1 provides, in part:
The state is divided into five Supreme Court districts from each of which a
justice shall be selected as follows:
...
Fourth District. The counties of Union, Clay, Yankton, Hutchinson,
Hanson, Davison, Bon Homme, Douglas, Aurora, Brule, Charles Mix,
Gregory, Tripp, Lyman, McCook, Turner and that part of Lincoln
(continued . . .)
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appointment to the vacant Supreme Court position serving the Fourth District must
establish voting residency in that district.
[¶4.] Pursuant to Article V, § 5, “The Governor has authority to
require opinions of the Supreme Court upon important questions of law
involved in the exercise of his executive power and upon solemn occasions.”
This provision is disjunctive. In re Opinion of Supreme Court Relative to the
Constitutionality of Chapter 239, Session Laws of 1977, 257 N.W.2d 442 (S.D.
1977). It presents two situations in which an opinion can be given. Id.
[¶5.] In this case, you are required to exercise your executive power and
appoint a nominee to the Supreme Court vacancy. S.D. Const. art. V, § 7. The
action that you take will be affected by our answer to the questions you pose. To
His Excellency Wollman, 268 N.W.2d 820, 822 (S.D. 1978). “The power which the
people of this state have entrusted to a [Supreme Court justice] affects the people’s
lives, welfare and property to no small extent.” In re Fuller, 2011 S.D. 22, ¶ 38, 798
N.W.2d 408, 419 (quoting Cummings v. Mickelson, 495 N.W.2d 493, 496 (S.D. 1993)
(plurality)). Because you raise important questions of law involved in the exercise
of your executive power, we will answer those questions.
ANALYSIS
[¶6.] “The language used in a constitution is of primary importance in
determining when the qualification to office must exist.” Cummings, 495 N.W.2d at
498. The words used in a constitutional provision “cannot be analyzed in isolation
________________________
(continued . . .)
County that is not included in the second Supreme Court district shall
(continued . . .)
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to the exclusion of the rest of the provision.” Id. at 500. Additionally, in construing
a constitutional provision, we “must give regard to the whole instrument, must seek
to harmonize the various provisions, and must, if possible, give effect to all the
provisions.” S.D. Auto. Club v. Volk, 305 N.W.2d 693, 696 (S.D. 1981).
South Dakota Constitution Article V, § 2
[¶7.] Your inquiry suggests that Article V, §§ 2 and 6 each require justices of
the Supreme Court to be voting residents of the district from which they are
appointed. Article V, § 2, however, makes no mention of voting resident or voting
residence. It provides:
The Supreme Court is the highest court of the state. It consists
of a chief justice and four associate justices. Upon request by
the Supreme Court the Legislature may increase the number of
justices to seven. All justices shall be selected from compact
districts established by the Legislature, and each district shall
have one justice.
[¶8.] The language key to your inquiry is that “[a]ll justices shall be selected
from compact districts established by the Legislature, and each district shall have
one justice.” Id. “Initially, it should be noted that words such as ‘from,’ when used
with respect to measurement of time, have no fixed or specific meaning. ‘Standing
alone they are ambiguous and equivocal.’” Cummings, 495 N.W.2d at 500 (citing
Fetters v. City of Des Moines, 149 N.W.2d 815, 818 (Iowa 1967)). However, the
historical background of this provision provides guidance in determining its
meaning and intent. City of Sioux Falls v. Sioux Falls Firefighters, Local 814, 89
S.D. 455, 234 N.W.2d 35, 37 (1975).
________________________
(continued . . .)
constitute the fourth Supreme Court district.
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[¶9.] “Usually amendments [to the Constitution] are adopted for the express
purpose of making a change in the existing system.” Volk, 305 N.W.2d at 697. The
1972 revision of Article V that was approved by the electorate “reorganized the
article, established a unified judicial system and made numerous changes
throughout.” S.D. Const. art. V, Historical Note. Article V, § 2, combined the
former provisions of Article V, §§ 5, 6, and 11 of the 1889 South Dakota
Constitution. While changes were made, see S.D. Const. art. V, § 2 Historical Note,
significant to our analysis is that the 1972 amendment retained the 1889
requirement that justices be chosen from “districts.”2
[¶10.] To determine the significance of the selection of justices from districts
we resort to the view of the drafting body of that provision. Cummings, 495 N.W.2d
at 499. The minutes of the Constitutional Revision Commission reveal that its
members debated whether there was a need for the geographical distribution of
justices or whether justices should be selected at large.3 It was the Commission’s
consensus that justices should be geographically distributed. The electorate in 1972
concurred in this view.
2. Article V, § 5 of the 1889 Constitution provided: “The supreme court shall
consist of three judges, to be chosen from districts by qualified electors of the
state at large, as hereinafter provided.” Article V, § 5 now requires that
justices be “selected from compact districts.”
3. The early minutes of the Commission meetings indicate strong initial
disagreement over selection and election of Justices on a state-wide basis
versus selection and election by districts. Those who argued for selection and
election on a state-wide basis indicated their intent to file a dissent to the
district concept. Yet through future discussions and constitutional drafts, the
report of the Commission that recommended §§ 2 and 6 in their current form
(continued . . .)
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South Dakota Constitution Article V, § 6
[¶11.] Article V, § 6 provides:
Justices of the Supreme Court, judges of the circuit courts and
persons presiding over courts of limited jurisdiction must be
citizens of the United States, residents of the state of South
Dakota and voting residents within the district, circuit or
jurisdiction from which they are elected or appointed. No
Supreme Court justice shall be deemed to have lost his voting
residence in a district by reason of his removal to the seat of
government in the discharge of his official duties. Justices of the
Supreme Court and judges of circuit courts must be licensed to
practice law in the state of South Dakota.
It is this provision, and not Article V, § 2, that requires Supreme Court justices to
be “voting residents within the district . . . from which they are elected or
appointed.”
[¶12.] We thoroughly analyzed the historical background, legislative history
and language of Article V, § 6 in Cummings, 495 N.W.2d at 498-502. The plurality
of the Court concluded: “We hold that a person appointed to the office of circuit
court judge must establish residency in that circuit prior to assuming said office.”
Id. at 502. Based on the plurality opinion’s analysis of § 6, we adhere to that
holding in responding to today’s inquiry. The text of § 2 establishes the same
requirement applies to persons selected by the Governor to become Supreme Court
justices. They must establish voting residency prior to taking the oath of office
which vests them with the office of justice.4
________________________
(continued . . .)
indicates compromises were reached. The Commission’s report on these
sections was unanimous.
4. The criteria for determining voting residence are found in SDCL 12-1-4:
(continued . . .)
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The Juxtaposition of
South Dakota Constitution Article V, §§ 2 and 6
[¶13.] At first blush it appears that Article V, § 2’s directive that “[a]ll
justices shall be selected from compact districts . . . and each district shall have one
justice” is at odds with Article V, § 6’s requirement that “justices . . . must be . . .
voting residents within the district . . . from which they are elected or appointed.”
________________________
(continued . . .)
For the purposes of this title, the term, residence, means the
place in which a person has fixed his or her habitation and to
which the person, whenever absent, intends to return.
A person who has left home and gone into another state or
territory or county of this state for a temporary purpose only has
not changed his or her residence.
A person is considered to have gained a residence in any county
or municipality of this state in which the person actually lives, if
the person has no present intention of leaving.
If a person moves to another state, or to any of the other
territories, with the intention of making it his or her permanent
home, the person thereby loses residence in this state.
In addition, South Dakota’s voter registration application requires the voter
to declare, under penalty of perjury:
• I am a citizen of the United States;
• I actually live at and have no present intention of leaving the
above address;
• I will be 18 on or before the next election;
• I have not been judged mentally incompetent;
• I am not currently serving a sentence for a felony conviction
which included imprisonment, served or suspended, in an adult
penitentiary system;
• I authorize cancellation of my previous registration as written
below.
http://www.sdsos.gov/electionsvoterregistration/votregformlongbweffec
tive20080908 (last visited July 15, 2011).
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The members of the Constitutional Revision Commission, however, were acutely
aware of the inconsistencies caused throughout the years by heavily amending the
1889 Constitution. See State v. Wilson, 2000 S.D. 133, ¶ 8, 618 N.W.2d 513, 516.
In drafting the 1972 Constitution they sought to avoid inconsistences and conflicts
between provisions. Id. It is this Court’s responsibility to give a reasonable
construction to each provision, give effect to each provision, and construe them
together to make them harmonious and workable. See Volk, 305 N.W.2d at 696.
[¶14.] In Cummings, 495 N.W.2d at 499, we noted that the drafters of Article
V, § 6 eliminated the arbitrary age and period of residency requirements found in
the former Article V, § 25.
With the above stated Commission goal of doing away with
“illogical” residency requirements, it would make little sense to
require an attorney to declare residency in the circuit with a
judicial vacancy just days prior to making application to the
Judicial Qualifications Commission or just prior to receiving
appointment.
Cummings, 495 N.W.2d at 500.
[¶15.] The word “justice” as used in Article V is not merely a generic
description. It carries with it a specific meaning. Before 1972, members of the
South Dakota Supreme Court were known as “judges of the South Dakota Supreme
Court.” The 1972 amendments made a specific change in the title of the judicial
office. Holders of it were now known as “justices” not “judges.”
[¶16.] In addition, the drafters of the 1972 Constitution changed the scope of
the constitutional provision. While the 1889 Constitution referred to “person . . .
eligible to the office of judge,” Article V, § 6 refers to “[j]ustices of the Supreme
Court, judges of the circuit courts and persons presiding over courts of limited
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jurisdiction[.]” Cummings, 495 N.W.2d at 501. “Just because an applicant obtains
the right to hold office does not automatically make him or her into a circuit court
judge.” Id. The 1889 text references a person who had the legal opportunity to
become a judge at some point in the future while the 1972 text contemplates a
situation where the individual has already achieved that status.5 Thus, Article V, §
6 applies to “justices,” not a “person . . . eligible to the office of a [judge],”
“applicants,” “certified applicants” or the like. Cummings, 495 N.W.2d at 501.
Consistent with that Article V, § 7 which says a vacancy shall be filled by
“appointment” from a list of “persons” who hold the status of “nominated by the
judicial qualifications commission.” Although “appointed” to become a Supreme
Court justice, one does not achieve that office until he or she takes the oath of office
and it is confirmed that he or she is licensed to practice law in South Dakota, a
resident of South Dakota, and a citizen of the United States.
[¶17.] An early case involved a vacancy on the Supreme Court due to death.
In re Supreme Court Vacancy, 4 S.D. 532, 57 N.W. 495 (1894). The Court held that
the vacancy would continue to exist until there was a person authorized to assume
the office and that person commenced discharging the duties of the judicial office.
Id. at 534, 57 N.W. at 495. Under this logic the current vacancy due to the
5. That interpretation is reinforced by the next two sentences of Article V, § 6,
both of which reference “justices” and not those selected to become one in the
future. The first says that “[n]o Supreme Court justice shall be deemed to
have lost his voting residence in a district by reason of his removal to the seat
of government in the discharge of his official duties.” The final sentence says
that “justices of the Supreme Court . . . must be licensed to practice law in
South Dakota.” Thus, all three sentences of Article V, § 6 reference the rights
and duties of sitting Supreme Court justices.
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retirement of Justice Meierhenry continues to exist until her appointed successor
commences discharging the duties of office of “justice.” Accordingly, we hold that
voting residency must be established prior to assuming office by taking the oath of
office. Cummings, 495 N.W.2d at 502.6
[¶18.] A similar analysis applies to Article V, § 2, which provides: “[a]ll
justices shall be selected from compact districts[.]” There the drafters of the 1972
Constitution struck a balance to ensure that the best qualified person would be
selected and that each portion of South Dakota would be represented on the
Supreme Court. The use of the term “justice” in Article V, § 2, as in § 6, indicates
that the triggering event for both sections is when the oath is taken and the
governor’s appointee becomes a justice. Establishing voting residency in the district
prior to taking the oath also establishes selection from the district.
[¶19.] Consequently, a person selected by the Governor to fill a vacant seat
on the Supreme Court becomes a justice by qualifying for office by taking an oath or
affirmation. SDCL 3-1-5. Prior to taking that oath, however, that person must
fulfill the eligibility requirement to hold that office including establishing voting
6. The Cummings opinion further noted with regards to the Commission’s
drafting:
An early Commission draft of September 3, 1970, contained a
requirement that a Supreme Court justice be a resident “when
appointed or elected.” Thus, it is clear that the Commission
considered the concept of residency prior to taking office in some form.
This language was not retained and after numerous subsequent drafts,
Art[icle] V, § 6 was to become the Commission’s recommendation
without dissent.
Cummings, 495 N.W.2d at 502 n.10.
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residency in the district from which he or she is appointed. By doing so, that person
becomes a justice after taking the oath and complies with the constitutional
directives of being a voting resident of the district from which he or she was
selected.
Respectfully submitted this 26th day of July, 2011.
_____________________________
David Gilbertson, Chief Justice
______________________________________
Glen A. Severson, Supreme Court Justice
________________________________________________
Judith K. Meierhenry, Supreme Court Justice (Ret.)
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[¶20.] I agree with the majority’s opinion regarding the acts necessary to
establish voting residency. See supra note 4. With respect to the time of
establishing residency, three constitutional provisions control. South Dakota
Constitution article V, § 2 requires that justices be “selected from compact districts
established by the legislature.” (Emphasis added.) Article V, § 6 requires justices to
have voting residency “within the district . . . from which they are . . . appointed.”
(Emphasis added.) And Article V, § 7 requires that Supreme Court vacancies “shall
be filled by appointment of the Governor[.]” (Emphasis added.) Because the
Governor’s selection of justices must be “from compact districts,” and because the
selection must be by “appointment,” I conclude that voting residency must be
established at the time of the appointment; that is, at the time the Governor’s
appointment becomes final by its filing in the office of the Secretary of State.
[¶21.] As the majority opinion notes, there was disagreement among the
members of the 1972 Constitutional Revision Commission whether Supreme Court
justices should be selected from districts or from the State at large. See supra ¶ 10.
The disagreement was resolved by the 1972 language in Article V, § 2 retaining the
requirement that “[a]ll justices shall be selected from compact districts . . . and each
district shall have one justice.” The 1972 revision further requires that the
Governor’s selection be a voting resident within the district from which they are
“appointed.” S.D. Const. art. V, § 6.
[¶22.] Our interpretation of these provisions should not render the words
“appointed” and “from compact districts” meaningless. In our prior decision on the
time for establishing residency for judicial office, we noted that “[n]o wordage should
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be found to be surplus. No provision can be left without meaning. If possible, effect
should be given to every part and every word.” Cummings v. Mickelson, 495 N.W.2d
493, 500 (S.D. 1993) (Gilbertson, Cir. J., plurality) (internal citations omitted). To
give meaning to the words “appointed,” “from compact districts,” and a “voting
resident[] within the district,” the person appointed by the Governor must have
established voting residency in the vacant district at the time of the appointment.
[¶23.] “SDCL 3-4-6 sets forth the requirements for [gubernatorial]
appointments. They must be in writing and filed with the Secretary of State.” Id. at
496 n.3. “Appointments are complete when the appropriate certificate of
appointment is filed with the Secretary of State.” Id. at 504 (Steele, Cir. J.,
concurring in result). See also Burke v. Schmidt, 86 S.D. 71, 80, 191 N.W.2d 281,
286 (1971) (stating that the office of the Secretary of State “is the place
appointments are required to be filed”). Because filing the appointment with the
Secretary of State is the last executive act necessary to effectuate an appointment,
residency must be established in the district by the time the written appointment is
filed.
[¶24.] I disagree with today’s majority opinion adopting the writing of two
Justices in Cummings. 495 N.W.2d 493 (Gilbertson, Cir. J.; Miller, C.J.) (concluding
that residency must be established at the time the candidate qualifies for office by
taking the requisite oath rather than the time of appointment). See supra ¶¶ 12, 17-
19. The Constitution speaks only in terms of the Governor’s selection by
appointment, and there is a clear difference between the Governor’s act of
appointment to an office and a candidate’s subsequent act of qualifying for that office
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(the oath). The Legislature has recognized that these acts are different and that
each act occurs at a different time: “Persons appointed to offices . . . shall qualify in
the same manner as is required of those elected, the time of which shall be
prescribed in their appointment.” SDCL 3-4-7.
[¶25.] Nevertheless, the majority eschews the word appointment in favor of
the word qualification. The majority concludes that a person may be appointed from
a district other than the one in which the vacancy exists as long as the person
establishes residency prior to “assuming office”; i.e. “prior to taking the oath of office
which vests them with the office of justice.” See supra ¶¶ 12, 17. There is, however,
no constitutional language referring to residency at the time of oath, qualification, or
assumption of office. The Constitution requires residency within districts and the
Governor’s selection of persons by “appointment” from districts. S.D. Const. art. V,
§§ 2, 6 and 7. The majority’s view, that the residency requirement only applies when
a person already appointed later assumes office, renders the words selection “from”
districts by “appointment” meaningless.7
7. The majority essentially concedes that the word “appointment” from districts
is meaningless when it acknowledges that under its view, the triggering event
for residency is when the “Governor’s appointee” (a person already appointed)
ultimately becomes a justice. See supra ¶ 18 (emphasis added). Further,
since the oath can only be taken after appointment, it is difficult to
understand how the majority can conclude that “[e]stablishing voting
residency in the district prior to taking the oath also establishes selection
[(appointment)] from the district.” See id.
The majority suggests the failure to adopt a 1970 Constitutional Revision
Commission draft suggests that the 1972 final version eliminated any
requirement that the applicant be a resident of the district “when appointed or
elected.” See supra note 6. The Commission minutes do not reflect why that
draft was proposed or why it was not adopted. But more importantly, the
(continued . . .)
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[¶26.] Moreover, because Article V, § 6 governs both appointments and
elections, under the majority’s view, persons now seeking election for circuit
judgeships will no longer have to become a voting resident of the circuit at the time
of an election. This will permit lawyers and judges in one circuit to run for circuit
judgeships in other circuits without ever becoming a voting resident, unless they are
fortunate enough to defeat the resident judge in the election. In adopting the 1972
amendments, the voters could not have intended the majority’s view. Judge Steele’s
controlling opinion in Cummings (requiring residency at the time of appointment or
election) should continue to control the time of residency question. 495 N.W.2d at
502-04 (Steele, Cir. J., concurring in result). Only that opinion reconciles all of the
1972 constitutional revisions. See id. at 504 (“reconcil[ing] all of the new provisions
with the old [to] have the effect of treating judicial candidates and appointees
equally in terms of residency requirements”).
________________________
(continued . . .)
Court’s suggestion is inconsistent with the final language requiring that
justices have voting residency in the district from which they are “appointed,”
that justices be “selected from compact districts,” and that the Governor make
that selection by “appointment.” S.D. Const. art. V, §§ 2, 6 and 7.
Finally, “nothing in the legislative history of Art[icle] V, § 6 . . . indicates any
intent to change the old requirement that one need only be a resident of the
circuit [or in this case district] at the time of election or appointment; the
intent was merely to eliminate the age and [one year] durational residency
requirements.” Cummings, 495 N.W.2d at 504 (Steele, Cir. J., concurring in
result). The Commission thought the age and one year residency provisions
were “[a]rbitrary standards.” There is, however, no history suggesting that
the Commission rejected all requirements of being a resident at the time of
election or appointment. See id.
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______________________________________
Steven L. Zinter, Supreme Court Justice
[¶27.] I concur with the writing of Justice Zinter.
_________________________________________
John K. Konenkamp, Supreme Court Justice
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