Gray v. Gienapp

#24407-DG
2007 SD 12

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

BOB GRAY, PRESIDENT PRO TEMPORE
OF THE SOUTH DAKOTA STATE
SENATE and MEMBERS OF THE SOUTH
DAKOTA STATE SENATE, Applicants,

v.

DAVID R. GIENAPP, CIRCUIT JUDGE, Respondent,

and

DANIEL SUTTON, Intervenor and Respondent.

* * * *
ORIGINAL PROCEEDING
* * * *
LAWRENCE E. LONG
Attorney General
Pierre, South Dakota

ROXANNE GIEDD
Assistant Attorney General
Pierre, South Dakota

JEFFREY P. HALLEM Attorneys for Applicants Bob Gray
Deputy Attorney General and Members of the South Dakota
Pierre, South Dakota State Senate.

MICHAEL J. BUTLER of
Butler Law Office
Sioux Falls, South Dakota

PATRICK DUFFY of
Duffy and Duffy Attorneys for Intervenor and
Rapid City, South Dakota Respondent Daniel Sutton.

* * * *
CONSIDERED
JANUARY 18, 2007

OPINION FILED 1/18/07
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GILBERTSON, Chief Justice

[¶1.] On January 10, 2007, the circuit court for the Third Judicial Circuit,

venued in Moody County, the Honorable David Gienapp presiding, filed an

alternative writ of prohibition. It ordered Bob Gray, the president pro tempore of

the South Dakota Senate, and the members of the Senate to "desist and refrain"

"during the 2007 South Dakota Legislative Session under Proposed Senate Rules on

Discipline and Expulsion of Members" from holding any hearings regarding Senator

Dan Sutton's alleged sexual misconduct with a senate page. The writ also

restrained Gray and the Senate from disclosing the contents of the Division of

Criminal Investigation's investigation "in any public manner or fashion."

[¶2.] On January 11, 2007, the Senate applied for a writ of prohibition from

this Court. It asks this Court to declare that the alternative writ of prohibition is

without force and effect, thereby allowing the Senate to proceed to resolve the

legislative issues regarding Senator Sutton.

FACTS

[¶3.] In February 2006 an eighteen-year-old senate page contacted the

attorney general and alleged that Dan Sutton, a state senator for District 8, made

sexual advances and inappropriately touched him at a Ft. Pierre motel. The

complaint was referred to the Division of Criminal Investigation. No criminal

charges have been filed against Senator Sutton.

[¶4.] On October 11, 2006, Senator Lee Schoenbeck, then president pro

tempore of the Senate, was contacted by the father of the page regarding the

allegations. Schoenbeck wrote to Senator Sutton the next day and advised him:
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We do not have authority to bring criminal charges. The
worst that the senate can do is to expel. The full
legislature would have the power to impeach. I will
formally refer this to either the Executive Board or the
Governor in one week. If you are no longer a member of
the state senate on October 18th, there will be no further
action for the senate to take on this matter.

Senator Sutton did not resign by October 18.

[¶5.] On October 27, 2006, Governor M. Michael Rounds, pursuant to Article

IV, § 3 of the South Dakota Constitution and in response to a request of the Senate's

executive board, issued an Executive Proclamation calling the Senate into a special

session on November 27, 2006. The purpose of the special session was "to hear,

investigate and deliberate allegations concerning the conduct of Senator Dan Sutton

and to take such action or actions as the Senate of the South Dakota State

Legislature deems, in its collective judgment, to be necessary[.]"

[¶6.] On November 7, 2006, Senator Sutton was reelected to the Senate for

the 2007 and 2008 sessions by District 8 voters. He was also served with a written

notice of the special session to "investigate public allegations of conduct unbecoming

a State Senator pursuant to Article III, § 9 of the South Dakota Constitution and

the Rules of the South Dakota Legislature and Rules of the South Dakota Senate[.]"

[¶7.] Senate leaders released their proposed rules for the special session on

November 13, 2006. Senator Sutton resigned from the 2006 Senate the next day,

November 14, 2006, and announced that he intended to reclaim his seat in January

2007 pursuant to his November 7, 2006 reelection. The special session was

cancelled.

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[¶8.] The Eighty-Second session of the legislature convened on January 9,

2007. Senator Sutton took the oath of office and was seated. The Senate also voted

to adopt the permanent joint rules and the permanent Senate rules of the Eighty-

First legislative session as the temporary rules of the Eighty-Second legislative

session.

[¶9.] Joint Rule 1-11 of the Eighty-First legislative session provides:

Either house may punish its members for disorderly
behavior and, with concurrence of two-thirds of all
members elected, expel a member. The reason for such
expulsion shall be entered on the journal with the names
of the members voting on the question.

[¶10.] In addition, the joint rules of the Eighty-First legislative session

include a chapter on decorum. While many of the sections in this chapter deal with

decorum within either chamber or gallery, Rule 1A-4 prohibits sexual harassment

and provides, in part, "[a]ll members shall avoid any action or conduct which could

be viewed as sexual harassment."

[¶11.] Moreover, Senate Rule S5-2 provides "Mason's Manual of Legislative

Procedure governs the proceedings of the Senate in all proceedings of the Senate in

cases not covered by these rules or the Joint Rules." The House has a similar rule.

Rule H4-2. Mason's Manual is a widely recognized authority on state legislative

and parliamentary procedures. Chapter 50 of this manual, which the Senate

adopted, deals with the election and qualifications of members and the discipline

and expulsion of members.

[¶12.] On January 10, 2007, the Senate adopted the temporary Senate rules

as the permanent rules of the Eighty-Second legislative session. It also adopted

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rules regarding the discipline and expulsion of members and amended these to the

Senate rules as a new chapter. Senator Sutton was excused from this vote.

[¶13.] The rules regarding the discipline and expulsion of members allow any

senator to move for the establishment of a select committee to investigate the

conduct of any other senator. Upon passage of the motion by a majority vote, a nine

member committee is formed. The rules deal with committee meetings, notice,

procedures in committee, subpoena power, contempt, and the effect of the

investigated senator's resignation. Under these rules a member being investigated

receives notice, is entitled to attend all meetings with legal counsel, and is afforded

"full opportunity to present the member's position, to present witnesses in support

of the member's position, and . . . to confront and question witnesses called by the

committee[.]" Rule 8-4(3). Any action to expel, censure, discipline, or exonerate a

senator is proposed in a committee report to the Senate. The full Senate then

considers whether to adopt the committee report. Expulsion requires a two-thirds

majority vote. Censure or discipline requires a three-fifths vote. Exoneration

requires a majority vote.

[¶14.] At this point there has been no motion to establish a select committee

on discipline and expulsion to investigate the allegations against Senator Sutton.

On January 10, 2007, the day the Senate adopted its rules, Senator Sutton went to

the circuit court where he applied for and received, without prior notice, an

alternative writ of prohibition ordering the Senate to refrain from holding any

hearings regarding Senator Sutton under the rules of discipline and expulsion.

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STANDARD OF REVIEW

[¶15.] We set forth the standard of review for this type proceeding in Doe v.

Nelson, 2004 SD 62, ¶ 7, 680 NW2d 302, 305:

The ordinary standard of review of a trial court's decision
involving the request to issue a writ of prohibition is
abuse of discretion. H & W Contracting v. City of
Watertown, 2001 SD 107, ¶ 24, 633 NW2d 167, 175. In
this case, however, there were no issues of fact for the
trial court to resolve. The issues before it were solely
those of statutory and constitutional interpretation, thus
being questions of law. As such, an erroneous
interpretation of law if prejudicial, may be by definition
an abuse of discretion. Cf. State v. Ashbrook, 1998 115,
¶ 6, 586 NW2d 503, 506.

ISSUE

[¶16.] Did a circuit court judge of the Third Judicial Circuit have
jurisdiction to prohibit the Senate, while the legislature is in session, from
commencing legislative proceedings under rules adopted by it, to
investigate allegations against Senator Sutton, one of its members, for
misconduct, including sexual misconduct involving a former employee, a
senate page?

DISCUSSION

A.

[¶17.] Article II of the South Dakota Constitution provides:

The powers of the government of the state are divided
into three distinct departments, the legislative, executive
and judicial; and the powers and duties of each are
prescribed by this Constitution.

Article II explicitly states the separation of powers doctrine and encompasses three

prohibitions:

(1) no branch may encroach on the powers of another,
(2) no branch may delegate to another branch its essential
constitutionally assigned functions, and (3) quasi-

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legislative powers may only be delegated to another
branch with sufficient standards.

State v. Moschell, 2004 SD 35, ¶ 14, 677 NW2d 551, 558. "Each branch, so long as

it acts within the limitations set by the constitution, may exercise those powers

granted to it by the constitution without interference by the other branches of

government." State ex rel. Walter v. Gutzler, 249 NW2d 271, 273 (SD 1977).

B.

[¶18.] This Court has both constitutional and statutory authority to issue a

writ of prohibition to "arrest" or halt the proceedings of any tribunal or lower court

under appropriate circumstances. Sioux Falls Argus Leader v. Miller, 2000 SD 63,

¶ 4, 610 NW2d 76, 81 (citing SDConst art V, § 5; SDCL 21-30-1; 21-30-2; Cummings

v. Mickelson, 495 NW2d 493, 495 (SD 1993)). The supreme and circuit courts may

issue a writ of prohibition "to an inferior tribunal, or to a corporation, board or

person, in all cases where there is not a plain, speedy, and adequate remedy in the

course of law." SDCL 21-30-2. The writ "arrests the proceedings, administrative or

judicial, of any tribunal, corporation, board or person, when such proceedings are

without or in excess of the jurisdiction of such tribunal, corporation, board, or

person, or are without or in excess of the powers of authority conferred by law upon

such tribunal, corporation, board, or person." SDCL 21-30-1. Prohibition is a

preventative remedy rather than a corrective one. State ex rel. Line v. Kuhlman,

167 Neb 674, 94 NW2d 373 (1959).

[¶19.] The doctrine of separation of powers has been a fundamental bedrock

to the successful operation of our state government since South Dakota became a

state in 1889. A few years later this Court decided State ex rel. Cranmer v.

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Thorson, 9 SD 149, 68 NW 202 (1896). We were asked, in an original action, to

enjoin the secretary of state from certifying to the voters a proposed constitutional

amendment which had been passed by the legislature. We concluded that we did

not have jurisdiction to issue an injunction because it would interfere with

legislative proceedings. In so doing, we examined the issue of our authority to grant

injunctive relief in instances involving our constitutional relationship with the

actions of the legislature:

Because this Court has power to issue writs of
mandamus, quo warranto, certiorari, injunction and other
original and remedial writs, with authority to hear and
determine the same, in such cases . . . it does not follow
that it has jurisdiction to issue an injunction upon any
and all occasions.

* * *

[N]o consideration of policy or convenience should induce
the courts to assume to exercise a power that does not
belong to them, nor, on the other hand, should any
consideration of that kind, or of any kind, induce them to
surrender a power which it is their duty to exercise. The
assumption of a power not vested in them would be a
violation of the constitution, since it would be a
usurpation of the power conferred upon another branch of
the government. It would disturb the system of checks
and balances which the constitution has so carefully
constructed and which the courts have ever guarded with
most scrupulous care.

9 SD 149 at 152, 156, 68 NW at 202-03, 204.

[¶20.] The question in this case then, is whether the circuit court encroached

on the powers of the legislature by issuing an alternative writ prohibiting the

Senate from proceeding with a disciplinary hearing of a member.

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[¶21.] Each house of the legislature "shall be the judge of the election returns

and qualifications of its members" and "shall determine the rules of its

proceedings." SDConst art III, § 9. "[T]he power of each house to pass upon the

qualifications of its own members is exclusive or plenary." Gutzler, 249 NW2d at

273.

[¶22.] The powers possessed by the legislature are broad:

The South Dakota Constitution, unlike the Constitution
of the United States, does not constitute a grant of
legislative power. Instead, our constitution is but a
limitation upon the legislative power and the legislature
may exercise that power in any manner not expressly or
inferentially proscribed by the federal or state
constitutions. Thus, except as limited by the state or
federal constitutions, the legislative power of the state
legislature is unlimited. What the representatives of the
people have not been forbidden to do by the organic law,
that they may do. Consequently, in determining whether
an act is unconstitutional, we search the state and federal
constitutions for provisions which prohibit its enactment
rather than for grants of power.

Doe, 2004 SD 62, at ¶ 25, 680 NW2d at 312 (quoting Breck v. Janklow, 2001 SD 28,

¶ 9, 623 NW2d 449, 454). (emphasis in original).

[¶23.] Although Doe dealt with the issue of the constitutional authority of the

governor to grant pardons, this Court recognized that the doctrine quoted above

vests the legislature with "inherent authority." Id. Cited as example of the

legislature's "inherent authority" is "the power 'to superintend its internal

management and carry out its constitutionally-mandated duties.'" Id. ¶ 25 n 12,

680 NW2d at 312 n 12. (citations omitted)(emphasis added).

[¶24.] This concept is embodied in a recent Florida case where a circuit court

entered a temporary restraining order prohibiting the legislature from convening a

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public hearing to resolve an impasse between the public employees union and the

governor. Florida Senate v. Fl. Public Emp. Council 79, 784 So2d 404 (Fla 2001).

The Senate asked the Florida Supreme Court to issue a writ of prohibition. The

Florida Supreme Court recognized that one of the precepts underlying the

separation of powers is that no branch may encroach upon the power of another.

Where the legislature is concerned, it is only the final
product of the legislative process that is subject to judicial
review:

It is the final product of the legislature that is
subject to review by the court, not the internal
procedures. As we stated in General Motors
Acceptance Corp. v. State, 152 Fla 297, 303, 11
So2d 482, 485 (1943), the legislature has the power
to enact measures, while the judiciary is restricted
to the construction or interpretation thereof.

Id. at 408. When the circuit court entered its order barring the Florida Senate from

convening a scheduled public hearing it "contravened the internal workings of the

Legislature" and "impinged on the sovereignty of a co-equal branch of government."

Id. at 409. Accordingly, the Florida Supreme Court granted the petition for the

writ.

C.

[¶25.] In his affidavit and application for writ of prohibition in circuit court

Senator Sutton argued that his potential removal from office for conduct occurring

prior to the 2007 legislative session "if done in violation of the State Constitution

and State Codified Law" would result in irreparable harm to himself and the voters

of District 8. He asked the circuit court to pierce the power of the legislature to

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judge the qualifications of its members under the authority of Powell v. McCormack,

395 US 486, 89 SCt 1944, 23 LEd2d 491 (1969).

[¶26.] In November 1966 Adam Clayton Powell was elected to serve in the

United State House of Representatives for the Ninetieth Congress. Although he

met the constitutionally mandated standing requirements of age, citizenship, and

residence, he was excluded from taking his seat pursuant to a House Resolution

based upon allegations that he had deceived House authorities as to travel expenses

when he was a member of the Eighty-Ninth Congress.

[¶27.] The United States Supreme Court rejected the contention that the case

did not arise under the United States Constitution within Article III because Article

I, § 5 granted each house the power to judge the qualifications of its members. The

Court noted that a suit arises under the Federal Constitution if a petitioner's claim

will be sustained if the Constitution is given one construction and defeated if given

another. 395 US at 514, 89 SCt at __, 23 LEd2d 491. The Court went on to hold

that the qualifications of persons who may be chosen are defined by the

Constitution and are unalterable by the legislature. The House was powerless to

exclude Powell because he had been elected by the voters of his district and was not

ineligible to serve under Constitutional provisions.

[¶28.] The Supreme Court noted that exclusion and expulsion "are not

fungible proceedings." 395 US at 512, 89 SCt at ___, 23 LEd2d 491. The House

could not exclude a duly elected person meeting all the requirements for

membership expressly prescribed in the Constitution. The Court expressed no view

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on what limitations may exist on Congress' power to expel or punish a member once

he has been seated. 395 US at 507 n 27, 89 SCt at ___, 23 LEd2d 491.

[¶29.] We were called upon to examine the scope of our judicial authority to

issue a writ of prohibition over contested legislative seats in McIntyre v. Wick, 1996

SD 147, 558 NW2d 347. The three Justice majority concluded authority existed

over the re-count of the ballots. However, the determination as to who would be

seated was left to the legislature after it conducted what proceedings it felt

necessary. *

[T]he final power of determination clearly lies with the
applicable house of the legislature and we do not presume
to invade it. . . . [T]his Court has no power under the
constitution to make any final determination of the
election as regards who will be seated. That power
remains with the legislature under South Dakota
Constitution Article III, § 9.

* In McIntyre the Court commented on what legislative proceedings may
possibly occur to determine the winners of the contested legislative seats:

When the legislature assembles at the Capitol in January,
any person may appear before either house and assert his
rights and title to any seat therein in accord with the
procedures prescribed by the legislature. If such a claim
is asserted, whether or not the house will listen to it, what
proof it will require, what investigation it will make and
what decision it will finally come to concerning the claim
are matters entirely and exclusively for that house to
determine. If such a claim is presented and the house
sees fit to investigate it, no one can doubt the power of
that house to summon and interrogate witnesses, to order
ballots and ballot boxes relating to the election to the
contested seat brought in for examination and to open and
examine the same or send a committee out for that
purpose.

1996 SD 147 at ¶ 21, 558 NW2d at 357.

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McIntyre, 1996 SD 147 at ¶ 19, 20 n 5, 7, 558 NW2d at 356 n 5, 7. The two

dissenting Justices concluded that there was no judicial authority to either recount

the votes or declare the winner -- both resided with the legislature. "At its essence,

the dispute here is a nonjusticable controversy -- a political question -- which is

beyond our jurisdiction to consider in any form." Id. at ¶ 63, 558 NW2d at 364.

(Sabers, J., and Amundson, J., dissenting).

[¶30.] In this case, Senator Sutton was not excluded from his Senate seat.

He has taken his oath of office. What future action, if any, will be taken by the

Senate is purely speculation at this point. The attorney general confirms that this

is the limited scope of the issue before us when he stated in his brief:

Whether the ultimate product of the Senate may be
subject to review . . . need not be decided by this Court.
Indeed any such decision would be premature since there
is nothing in the record to indicate what if any, action the
Senate may ultimately take as a result of its investigation
into the allegations of [Senator] Sutton's misconduct.

D.

[¶31.] The circuit court had no jurisdiction to halt a legislative disciplinary

process. Neither did it have the authority to preclude disclosure of the contents of

any investigation preparatory for the disciplinary hearing. We limit our holding to

those points as that is all the circuit court prohibited the Senate from doing. The

writ of prohibition sought by the Senate against the circuit court shall issue.

[¶32.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices,

concur.

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