Citibank (South Dakota), N.A. v. State

SABERS, Justice

(dissenting).

[¶ 20.] The State Treasurer is an independent constitutional officer elected by the people of South Dakota. Article IV, § 7 provides:

There shall be chosen by the qualified electors of the state at the general election of the Governor and every four years thereafter the following constitutional officers: attorney general, secretary of state, auditor, treasurer, and commissioner of school and public lands, who shall severally hold their offices for a term of four years.

(emphasis added). SDCL 1-10-1 delineates the general duties of the State Treasurer and provides:

The state treasurer shall have charge of and safely keep all public moneys which shall be paid into the state treasury, and pay out the same as directed by law, and perform such other duties as are required of him by law.

One of the duties that the State Treasurer is required to perform by state law is the administration of unclaimed property funds. SDCL 43^HB-1(1). Neither the Attorney General, as legal counsel, nor the Governor has the right to usurp or superimpose themselves upon the constitutional and statutory duties of the State Treasurer.8

[¶ 21.] The State Treasurer is South Dakota’s spokesperson on unclaimed property funds and must be a party or signatory to any settlement with Citibank. Because the State Treasurer has not agreed to the settlement proposal, this case is not moot and the State Treasurer is entitled to a decision on the merits, if he insists. However, he better be careful what he wishes for -he might get an answer on the merits that he does not want.

[¶ 22.] Furthermore, Citibank requires as a condition of the proposed settlement a dismissal of the appeal. Article XII, § 1 of the South Dakota Constitution provides:

No money shall be paid out of the treasury except upon appropriation by law and on warrant drawn by the proper officer.

Article XI, § 9 provides in part:

No indebtedness shall be incurred or money expended by the state, and no warrant shall be drawn upon the state treasurer except in pursuance of an ap*407propriation for the specific purpose first made.

Article XII, § 2 provides:

The general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for common schools. All other appropriations shall be made by separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the Legislature.

(emphasis added). The proposed settlement violates the South Dakota Constitution because it involves a $4.1 million appropriation, which requires a two-thirds majority vote of the South Dakota Legislature, and the settlement has not been presented to the Legislature for approval.

[¶ 23.] How can we dismiss the appeal when a dismissal would effectively approve an illegal settlement? We cannot. This proposed settlement will not be legal until approved by the South Dakota Legislature. We should remand this case to the circuit court to enable these parties an opportunity to obtain legislative approval.

[¶24.]' During last year’s State of the State message, Governor Janklow proclaimed that he was going to intervene in the process and attempt a settlement with Citibank. I commend him for his foresight, fortitude, and good faith desire to end this on-going dispute. However, the best laid plans often go astray. The Governor missed a step — he never got legislative approval. It is obvious this proposed settlement requires legislative approval and we should remand for that purpose.

[¶ 25.] In view of the constitutional and statutory duties of the State Treasurer, we must deny the motion to dismiss. However, because the State Treasurer’s position has everything to lose and nothing to gain for South Dakota, we should deny the motion to dismiss and remand to the circuit court to allow the State Treasurer to consent to the proposed settlement or the legislature to approve the settlement and the required appropriation within six months.

. See State v. Hagerty, 580 N.W.2d 139, 146 (N.D.1998) (quoting Ex parte Corliss, 16 N.D. 470, 114 N.W. 962, 964 (N.D.1907)) (stating: "By providing in the North Dakota Constitution for the election of certain officers, ‘the framers of the Constitution ... reserved unto themselves the right to have the inherent functions theretofore pertaining to said offices discharged only by persons elected as therein provided.’ ”).