Certification of a Question of Law

2000 SD 97, 615 N.W.2d 590, 2000 S.D. LEXIS 102

• Court: South Dakota Supreme Court
• Decided: July 26, 2000
• Docket: 21504
• Status: Published

Opinions

AMUNDSON, Justice.

[¶ 1.] Pursuant to SDCL 15-24A-1, District Judge Charles B. Kornmann of the United States District Court, District of South Dakota, certified to this Court the following question:

Whether the South Dakota Legislature acted in violation of Article III, Section 5 of the South Dakota Constitution, by the enactment of Chapter 21, Session laws of 1996, now codified as SDCL 2-2-28.

In his certification, Judge Kornmann indicated that it appears there is no controlling precedent on this issue in the decisions of this Court. As set forth below, the question is controlled by our decision in In re Opinion of Judges, 61 S.D. 107, 246 N.W. 295 (1933) and is answered in the affirmative.

FACTS AND PROCEDURE

[¶ 2.] Plaintiffs in the District Court action are the United States and individual plaintiffs, Steven C. Emery, Rocky Le-Compte, and James Picotte. The individual plaintiffs are voters and residents of Dewey County within legislative District No. 28 and are enrolled members of the Cheyenne River Sioux Tribe. They brought action in United States District Court against defendants who are Speaker of the South Dakota House of Representatives Roger Hunt, the South Dakota House of Representatives, President of the South Dakota Senate Carole Hillard, the South Dakota Senate, and Secretary of the State of South Dakota Joyce Hazeltine, all in their official capacities. They claimed that the current at-large election plan in legislative District No. 28 violates Section 2 of the Voting Rights Act of 1965, 42 USC § 1973, as amended, and is unauthorized by Article III, Section 5 of the South Dakota Constitution. The United. States filed a similar action limited to a claim of violation of the federal statute. Defendants in that action are the State of South Dakota, Governor William Janklow, President Pro Tempore of the South Dakota Senate Harold Halverson, .Speaker of the House of Representatives Roger Hunt, Attorney General of the State of South Dakota Mark Barnett, Secretary of the State of South Dakota Joyce Hazeltine, and the county auditors for Butte, Corson, Dewey, Harding, Perkins and Ziebach counties, all in their official capacities.

[¶ 3.] Following consolidation • of these cases and upon motion by the State defendants, the District Court- certified the above question of state law to this Court, which we accepted.

ANALYSIS AND DECISION

[¶ 4.] Article III, Section 5 of the South Dakota Constitution sets forth an affirmative mandate to the South Dakota Legislature for apportionment of its membership. It provides:

The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and in 1991, and every tew’years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment, shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.

(emphasis added). In 1991, following the 1990 decennial census, the Legislature enacted SDCL 2-2-28, which then provided:

Each representative district as provided for in § 2-2-26 is entitled to two representatives. However, in order to protect minority voting rights, District No. 28 shall consist of two single-member house districts as follows:

(1) District No. 28A — Dewey and Zie-bach counties and that portion of Corson county consisting of Bullhead, Kenel, Liberty, Little Oak, Little Eagle, McLaughlin, Ridge-land ahd Wakpala precincts.

(2) District' No. 28B — Harding and Perkins counties and that portion of Corson county consisting of Delaney, Grand Valley, Lincoln, McIntosh, Morristown and Wautauga precincts, and the cities of McIntosh, McLaughlin and Morristown, and that portion of Butte county west of U.S. Highway 85, north of U.S. Highway 212 and east of S.D. Highway 79, excluding the cities of Belle Fourche and Nisland.

In 1996, the Legislature amended this statute, as follows: “Each representative district as provided for in § 2-2-26 is entitled to two representatives.” We are asked to determine whether this 1996 amendment violates Article III, Section 5 of our Constitution which mandates apportionment in 1991 and every ten years thereafter. Clearly, the 1996 amendment reapportions legislative membership by eliminating Districts No. 28A and 28B.

[¶ 5.] “The Legislature is vested with authority to deal with any subject within the scope of civil government, except insofar as it is restrained by constitutional provisions,-or by the valid treaties and acts of Congress.” Kane v. Kundert, 371 N.W.2d 172, 174 (S.D.1985) (citations omitted). “If constitutional power does not exist, it cannot be acquired by legislative assertion.” State ex rel. Oster v. Jorgenson, 81 S.D. 447, 450, 136 N.W.2d 870, 871 (1965). “ ‘The Constitution is the mother law. It is not the baby. Statutes must conform to the Constitution, not vice versa.’ ” Poppen v. Walker, 520 N.W.2d 238, 242 (S.D.1994) (quoting Cummings v. Mickelson, 495 N.W.2d 493, 507 (S.D.1993) (Henderson, J., concurring in part; dissenting in part)).

[¶ 6.] In In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295 (1933), we answered an inquiry from the Governor regarding the authority of the Legislature to enact a reapportionment measure in the 1933 legislative session. The question required interpretation of Article III, Section 5 of the South Dakota Constitution, which at that time read, in relevant part, that the legislature shall apportion its membership in 1895 and every ten years thereafter and at no other time.¹ When this question was raised, the first legislature meeting after the last federal census was the Twenty-Second Legislature, which met in 1931. It failed to make an apportionment as required by the Constitution. Having failed to perform this duty, the question then became whether the Twenty-Third Legislature had the authority to exercise this duty and make an apportionment. We answered in the affirmative, noting the duty continues until performed.

[¶ 7.] In arriving at this answer, the constitutions of several other states were examined and found to contain language similar to our own regarding apportionment. We noted: “It seems to be held by all the courts which have had occasion to pass upon the matter that an affirmative mandate for legislative action at a specified time is an implied prohibition of action at any other time.” Opinion, 61 S.D. at 111, 246 N.W. at 296 (emphasis added). The fact that the prohibition in our constitutional provision was expressed rather than implied was not held to be a valid distinction. Id. We continued:

The framers of our Constitution did not, we think, have in mind the possibility that a Legislature might disobey the constitutional mandate, and might fail to make an apportionment at the time when that duty was affirmatively imposed upon them by the Constitution. It seems quite apparent that the framers of the Constitution in providing for apportionment ‘at its first regular session, after each enumeration ... but at no other time,’ meant to say only this and nothing more: That the Legislature should make an apportionment at the first session after an enumeration as affirmatively required by the Constitution, and having so done (as the Constitution makers assumed they would) they should not again exercise such power until after another enumeration.

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In other words, when a Legislature once makes an apportionment following an enumeration no Legislature can make another until after the next enumeration. ...

Id., 61 S.D. at 111-12, 246 N.W. at 296-97 (emphasis added).

[¶ 8.] Here we address not the Legislature’s failure to act to perform its constitutional duty but whether the Legislature had authority to act when it amended SDCL 2-2-28 in 1996. The holding of Opinion instructs that because the Legislature did perform its constitutional duty when it enacted apportionment legislation in 1991 following the 1990 federal census, it lacked constitutional authority to make another apportionment until after the next federal census.

[¶ 9.] We reinforced this holding in 1985: “When there is an affirmative constitutional mandate for legislative action at a certain specified time, there is an implied prohibition of action at any other time.” Kane, 371 N.W.2d at 174 (citing Opinion, supra). Kane was decided after Article III, Section 5 had been amended in 1982. As in Opinion, we determined in Kane that even without the express prohibition, the affirmative mandate for legislative action precludes action at any other time. The constitutional provision, as amended, reads, in part, that “[a]n apportionment shall be made by the Legislature¹ in 1983 and in 1991, and every ten years after 1991.” This language is mandatory and does not contemplate that the Legislature will fail to make an apportionment every ten years after 1991, nor does it provide, as interpreted in Opinion and reinforced in Kane, for an apportionment to be made at any other time after that duty has been discharged. The Sixty-Sixth Legislature, sitting in 1991, apportioned its membership by enacting SDCL 2-2-28. There is no constitutional authority for another legislative apportionment until 2001. Any other conclusion must reverse these two long-standing precedents.

[¶ 10.] Other jurisdictions, examining state constitutions with provisions similar to the 1982 amendment, that is, with no express prohibition of apportionment at a time other than that constitutionally prescribed, have reached the same conclusion. “It is the general rule that once a valid apportionment law is enacted no future act may be passed by the legislature until after the next regular apportionment period prescribed by the Constitution.” Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771, 779-80 (1963); Lamson v. Sec’y of Commonwealth, 341 Mass. 264, 168 N.E.2d 480, 483 (1960); Opinion of the Justices, 254 Ala. 185, 47 So.2d 714, 716 (Al 1950); Jones v. Freeman, 193 Okla. 554, 146 P.2d 564, 573 (1943); People ex rel. Mooney v. Hutchinson, 172 Ill. 486, 50 N.E. 599, 601 (1898); People ex rel. Carter v. Rice, 135 N.Y. 473, 31 N.E. 921, 926 (1892); 25 Am.Jur.2d Elections §§ 7-9 (1999).

If legislative power is given in general terms, and is not regulated, it may be exercised in any manner chosen by the legislature; but where the constitution fixes the time and mode of exercising a particular power it contains a necessary implication against anything contrary to it, and by setting a particular time for its exercise it also sets a boundary to the legislative power. If a power is given, and the mode of its exercise is prescribed, all other modes are excluded.

Hutchinson, 50 N.E. at 601 (emphasis added).

[¶ 11.] In 1982, the voters of this State transferred the duty of apportionment, if not performed by the Legislature, to this Court. The relevant part of Article III, Section 5, as amended, reads:

An' apportionment shall be made by the Legislature in 1983 and in 1991,. and every ten years after 1991. Such apportionment shall be accomplished by December first of- the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to ■ make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.

(emphasis added). This amendment is “the latest expression of the will of the people with respect to matters embraced therein and prevails over all preexisting inconsistent constitutional provisions.” State v. Sathre, 113 N.W.2d 679, 683 (N.D.1962); 16 Am.Jur.2d Constitutional Law § 81 (1998). The plain language of this amendment by the people supports an interpretation that the Legislature may only act to apportion after a decennial census and at no other time.

[¶ 12.] “[A]ny Legislature whose duty it is to make an apportionment” will only be those legislatures meeting in 1983, 1991, and every ten years thereafter. The constitution provides for no other time for apportionment. The 1982 amendment requires this Court to apportion the Legislature should the Legislature fail to perform its duty.² The Court’s duty is also mandated to be performed at a time certain. It may only be performed within ninety days after December first of 1991 and every ten years thereafter if the Legislature fails to apportion its membership by the December first deadline. If the Legislature were free to apportion at any time, why transfer this duty to the Court to be performed within a specific period of time in the event the Legislature fails to act?

[¶ 13.] The State argues the 1996 amendment is not an apportionment, but merely changes one voting district from two single-member districts into a dual-member district. Apportionment is defined as the “process by which legislative seats are distributed among units entitled to representation.” Black’s Law Dictionary at 99 (6th ed. 1990). There is no question the 1996 amendment to SDCL 2-2-28 effects an apportionment. The amended statute abolished distribution of a legislative seat in Districts No. 28A and 28B, and distributed two seats to District No. 28.

[¶ 14.] Further, the State claims the 1982 amendment to the Constitution, deleting the words “at no other time” from Article III, Section 5 permits redistricting at times other than following a decennial census. This argument has already been addressed above. “We think no valid distinction can be based upon the point that in our Constitution the prohibition against action at any other time is express rather than implied.” Opinion, 61 S.D. at 111, 246 N.W. at 296. The affirmative constitutional mandate for legislative action at a specified time remains in the present version of Article III, Section 5, thereby providing an implied prohibition of action at any other time. Kane, 371 N.W.2d at 174.

[¶ 15.] Moreover, this argument disregards the language added by the voters in 1982, transferring the duty to apportion to this Court to perform within ninety days after the Legislature’s deadline for performance has expired. We are not at liberty to ignore any part of the provision. “ ‘A Constitutional provision, like a statute, must be read giving full effect to all of its parts.’ The court, in construing a constitutional provision, must have regard to the whole instrument, and must seek to harmonize the various provisions, and if possible, give effect to all of them.” Assoc. Gen. Contractors v. Schreiner, 492 N.W.2d 916, 922-23 (S.D.1992) (citations omitted). The provision is self-executing and, once the duty to apportion has transferred to this Court, prohibits the Legislature from taking further action until after the next federal census.

[¶ 16.] Finally, the State claims the South Dakota Legislature enacted the 1996 amendment in response to the United States Supreme Court decision in Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) to “correct” what it perceived to be an unconstitutional act it enacted in 1991. Miller addressed a redistricting plan in Georgia involving congressional seats which was held to be violative of the Fourteenth Amendment’s equal protection clause because it was drawn on the basis of race without sufficient showing that it was narrowly tailored to achieve a compelling state interest, thus satisfying strict scrutiny.

[¶ 17.] Miller and its progeny must be read in conjunction with South Dakota’s compliance with the Voting Rights Act of 1965, 42 USC § 1973, as amended. See Sanchez v. State of Colorado, 97 F.3d 1303, 1327 (10th Cir.1996) (“Miller left open the question of whether compliance with the VRA, ‘standing alone, can provide a compelling interest independent of any interest in remedying past discrimination.’” (quoting Miller, 515 U.S. at 921, 115 S.Ct. at 2490-91, 132 L.Ed.2d at 783)).³ This argument by State begs the federal question left pending before the United States District Court and we are without jurisdiction to address this issue. The specific state law question certified to this Court has been answered.

CONCLUSION

[¶ 18.] Constitutional provisions are not grants of power to the Legislature, but are instead limitations on legislative authority. Poppen, 520 N.W.2d at 241 (citing Wyatt v. Kundert, 375 N.W.2d 186, 191 (S.D.1985)). Here, the Legislature acted beyond its constitutional limits. The certified question is answered in the affirmative. The South Dakota Legislature violated Article III, Section 5 of the South Dakota Constitution when it amended SDCL 2-2-28 in 1996. As this amended form is declared unconstitutional, the 1991 version of SDCL 2-2-28 remains in full, force and effect. In re Certification of Questions of Law, 1996 SD 10, ¶ 87, 544 N.W.2d 183, 204; Weegar v. Bakeberg, 527 N.W.2d 676, 678 (S.D.1995).

[¶ 19.] MILLER, Chief Justice, and KONENKAMP, Justice, concur. [¶ 20.] SABERS and GILBERTSON, Justices, dissent.

1 . In its entirety, this provision read:

The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy. Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state.

2 . As this Court observed in Opinion, 61 S.D. at 113, 246 N.W. at 297, "'[t]he failure to perform the duty cannot cancel the legislative obligation.' ” (quoting Botti v. McGovern, 97 N.J.L. 353, 118 A. 107, 108 (N.J.1922)). Observing the doctrine of separation of powers, this Court cannot compel the Legislature to perform its constitutional duties. In re State Census, 6 S.D. 540, 542, 62 N.W. 129, 130 (1895) (interpreting SDConst. Art. Ill, § 5). The voters merely transferred this obligation to the Court to perform should the Legislature fail to do so.

3 . In a separate concurrence in Bush v. Vera, 517 U.S. 952, 990, 116 S.Ct. 1941, 1968, 135 L.Ed.2d 248, 278 (1996), Justice O'Connor announced that “compliance with the results test of § 2 of the Voting Rights Act (VRA) is a compelling state interest.”