(concurring).
[¶ 19.] Pitts argues that other state employees have served in the legislature in the past. Although this may be true, acquiescence does not make a prior practice constitutional. “A longstanding, widespread practice is not immune from constitutional scrutiny.” Payton v. New York, 445 U.S. 573, 600, 100 S.Ct. 1371, 1387, 63 L.Ed.2d 639, 659 (1980).
[¶20.] Pitts’ motives are not in question and the State claims no wrongdoing. However, allowing Pitts to keep her job with South Dakota State University while serving in the legislature would set a dangerous precedent. The state penitentiary could field a candidate for the legislature or hire someone who is already in the legislature. The Mickelson Center for the Neurosciences could climb on the bandwagon with its own candidates. The University of South Dakota and Black Hills State University could each try for a senator or a representative or both. State workers in Pierre and Fort Pierre could elect fellow state employees to the District 24 House and Senate. Granting the writ of mandamus could subject future legislatures to domination by state employees.
[¶ 21.] To her credit, Pitts inquired with her employer, the Board of Regents, and the Secretary of State before running for the legislature. Unfortunately, no one told her that she could not be both a member of the legislature and a state employee. Although this decision is a harsh result in view of her good intentions, as Justice Holmes wrote in Rock Island RR Co.v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188, 189 (1920): “Men must turn square corners when they deal with the Government.”