Pitts v. Larson

2001 SD 151, 638 N.W.2d 254, 2001 S.D. LEXIS 178

• Court: South Dakota Supreme Court
• Decided: December 26, 2001
• Docket: None
• Status: Published

Opinions

SABERS, Justice.

[¶ 1.] Carol Pitts, an employee of the South Dakota State University Cooperative Extension Service (SDSU CES) and a member of the South Dakota House of Representatives seeks a Writ of Mandamus compelling Vernon Larson, the State Auditor of South Dakota (Larson or State), to pay her for services rendered during her employment at SDSU. We decline to issue a Writ of Mandamus.

FACTS

[¶ 2.] On November 7, 2000, Carol Pitts was elected to the South Dakota House of Representatives from District 7, Brookings County. Pitts took the oath of office on January 9, 2001, and served as a representative during the Seventy-Sixth Legislative Assembly of the South Dakota Legislature.

[¶ 3.] During this Legislative session, the 2001 General Appropriation Act was passed by both houses of the Legislature, was signed by the Governor and became law effective July 1, 2001. Some of the appropriations included in the General Appropriation Act were for personal services and operating expenses of SDSU CES.

[¶ 4.] Pitts is currently employed by SDSU CES as a Nutrition, Health and Food Safety Specialist. She has been employed by SDSU CES since March 1990 and is subject to one-year appointment contracts. The most recent one-year appointment contract began July 1, 2001, and runs through June 30, 2002.

[¶ 5.] On February 9, 2001, the Attorney General of South Dakota learned from the media that Pitts was a state employee. The Attorney General advised Pitts that her employment with SDSU CES and her position as a member of the House of Representatives presented a conflict of interest. Pitts, her attorney and the Attorney General’s Office entered into discussions on the matter. At the conclusion of the discussions, Pitts was advised that if she continued her employment with the State after July 1, 2001, the date on which the General Appropriation Bill was to take effect, her employment contract would be voided and she would not receive any compensation for her services.

[¶ 6.] In June 2001, Pitts told the Attorney General that she intended to continue her employment with SDSU CES. On June 25, the Office of the Attorney General informed the State Auditor, Vernon Larson, that Pitts could not be employed by the State. Larson then informed Pitts and SDSU that she would not be paid for any services Pitts performed at SDSU CES after June 30. Pitts requested and received leave without pay from SDSU CES effective on July 1, 2001.

[¶ 7.] The State believes that Pitts’ employment with SDSU CES and her service as a member of the House of Representatives violates Article III § 12 of the South Dakota Constitution, which prohibits a legislator from having any interest, direct or indirect, in a contract with the State or county authorized by any law enacted during the legislator’s term or one year thereafter. The State argues that Pitts’ employment with SDSU CES creates a conflict of interest because funds appropriated by the South Dakota Legislature in the 2001 General Appropriation Act for SDSU CES will be used to pay Pitts under her current appointment contract.

[¶ 8.] Pitts believes that she is entitled to payment for her services at SDSU CES. Pitts argues that she disclosed the nature of her employment with SDSU to the Secretary of State when she began her election process. She claims she was never advised that her candidacy and election would constitute any type of legal conflict with her employment at SDSU.

[¶ 9.] Pitts sought an Alternative Writ of Mandamus which was issued by this Court on July 16, 2001. Pitts asks this Court to direct Larson to pay her for the services she rendered in her capacity as an SDSU employee.

[¶10.] WHETHER PITTS’ EMPLOYMENT WITH SOUTH DAKOTA STATE UNIVERSITY WHILE SHE IS A MEMBER OF THE HOUSE OF REPRESENTATIVES OF THE SOUTH DAKOTA LEGISLATURE CONSTITUTES A CONFLICT OF INTEREST IN VIOLATION OF ARTICLE III § 12 OF THE SOUTH DAKOTA CONSTITUTION.

[¶11.] Pitts seeks a Writ of Mandamus to compel Larson to issue a warrant of payment for her employment at SDSU CES. A court may issue a writ “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” SDCL 21-29-2. The issuance of a Writ of Mandamus is an “extraordinary remedy” that will occur only “when the duty to act is clear.” Baker v. Atkinson, 2001 SD 49, ¶ 16, 625 N.W.2d 265, 271. This Court has stated that:

Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right. To prevail in seeking a Writ of Mandamus, the petitioner must have a dear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.

Id. (citations omitted) (emphasis added). Pitts has failed to demonstrate that she has “a clear legal right” to payment for her employment at SDSU CES.

[¶ 12.] Pitts has no clear legal right to payment because her employment with SDSU CES and her position as a member of the South Dakota House of Representatives creates a conflict of interest within the meaning of Article III § 12. Article III § 12 provides:

No member of the Legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased during the term for which he was elected, nor shall any member receive any civil appointment from the Governor, the Governor and senate, or from the Legislature during the term for which he shall have been elected, and all such appointments and all votes given for any such members for any such office or appointment shall be void; nor shall any member of the Legislature during the term for which he shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed (luring the term for which he shall have been elected.

(emphasis added). This article prohibits “payment of any claims or any part thereof created against the state under any agreement or contract made without express authority of law, and all such unauthorized agreements and contracts shall be null and void.” Norbeck & Nicholson Co. v. State (I), 32 S.D. 189, 142 N.W. 847, 851 (1913).

[¶ 13.] Pitts argues that the meaning of Article III § 12 is unclear and that it is necessary to look to the intent of the framers.¹ The meaning of this provision, however, is unambiguous. This Court has stated that:

The language of the constitution is plain. Its meaning cannot be mistaken. The purpose of [Article III § 12] is apparent. It is intended to preclude the possibility of any member deriving, directly or indirectly, any pecuniary benefit from legislation enacted by the legislature of which he is a member.It is intended to remove any suspicion which might otherwise attach to the motives of the members who advocate the creation of new offices or the expenditure of public funds.

Palmer v. State, 11 S.D. 78, 80-81, 75 N.W. 818, 819 (1898). Therefore, “the language in the constitution must be applied as it reads.” In re Janklow, 530 N.W.2d 367, 370 (S.D.1995).

[¶ 14.] This Court has strictly interpreted the language of Article III § 12. Asphalt Surfacing Co. v. South Dakota Dep’t Transp., 385 N.W.2d 115, 117 (S.D.1986) (holding that a member of the legislature could not be awarded a highway repair contract because he was the president of the company to which the contract was awarded). See also Palmer, 11 S.D. 78, 75 N.W. 818 (1898) (holding that a member of the legislature that authorized an appropriation for the railroad commissioners could not be paid for his employment with the railroad commissioners); Norbeck I, 32 S.D. 189, 142 N.W. 847 (1913) (holding that a contract between the state board of regents and a corporation is void because a member of the legislature which authorized the contract is also a stockholder in the corporation); Norbeck & Nicholson Co. v. State (II), 33 S.D. 21, 144 N.W. 658 (1913) (same). In Palmer, this Court held that Article III § 12 pro-Mbits the state from employing state legislators. 75 N.W. at 819. In Asphalt Surfacing, this Court determined that the prohibition contained in Article III § 12 was intended to be broad in scope. 385 N.W.2d at 118. Specifically, this broad prohibition extends to any contract entered into with the State, including the General Appropriation Bill. Id. (recognizing language of Article III § 12 applies to “any contract with the state”). When Article III § 12 is violated, the “contract is wholly illegal, void, and against public policy, and cannot be enforced in whole or in part on any theory of any kind.” Norbeck I, 142 N.W. at 848.

[¶ 15.] Pitts asserts that the facts of Palmer, Norbeck I & II and Asphalt Surfacing are distinguishable from the case at hand.² The facts of these cases, however, are not distinguishable. The 2001 General Appropriation Bill authorized payment for the employees of the SDSU CES. Pitts is a legislator who has an indirect interest in a contract, which was authorized by a law passed during the term for which she was elected. Article III § 12 expressly prohibits direct or indirect interest in any contract authorized by the legislature. “Nothing herein is intended to reflect upon the conduct of [Pitts] as a member of the legislature.... The question of [her] good faith is not involved.” Palmer, 75 N.W. at 819. Pitts has a good reputation as a representative and is well-respected by her fellow legislators.

[T]here was no personal mortal turpitude or dishonesty of any kind involved in this case.... We cannot and do not assume but what [Pitts] ... entered into the contract in question innocently and with the best of motives, but that fact will not make valid or give vitality of any character to a contract declared to be null and void by the laws of this state.

Norbeck I, 142 N.W. at 850. Pitts’ employment contract with SDSU CES for the 2001-02 year is void and the State properly refused to pay her for this employment. We decline to issue a Writ of Mandamus.³

[¶ 16.] KONENKAMP, Justice, concurs. [¶ 17.] GORS, Acting Justice, concurs with a writing. [¶ 18.] GILBERTSON, Chief Justice, files dissenting opinion joined by AMUNDSON, Justice.

1 . Amicus Curiae Board of Regents also asserts that the meaning of Article III § 12 is unclear and that it is therefore necessary to read this provision in historical context. The Board of Regents argues that the debate in the 1885 Constitutional Convention supports its position that the framers intended that legislators be allowed to engage in non-legislative public service that is not prohibited by Article III § 12. The Board of Regents also argues that the past appointments of several legislators to the state board of regents is illustrative of its position that legislators are not prohibited from holding state employment. While these facts may be somewhat persuasive historically, unchallenged history does not constitute binding precedent on this Court. Accordingly, we reject these arguments and decline to follow this reasoning.

2 . Pitts asserts that the concurring opinion by Justice Whiting in Norbeck I presents the appropriate standard for this Court to follow when construing Article III § 12. Justice Whiting states that "[t]he only contract that a legislator is forbidden to enter into with the state is a contract authorized by a law passed while he was a legislator.” Norbeck I, 142 N.W. at 853 (Whiting, J., concurring). Pitts argues that Article III § 12 was not adopted because a legislator might use his or her position to obtain an unfair contract, but out of fear that a legislator might be influenced by selfish motives when voting on a bill. Pitts contends that the framers did not intend to prohibit her from participating in the legislature simply because she was an employee of the state. Under these circumstances, we decline to follow the special writing of Justice Whiting.

3 . The dissent challenges what it perceives to be our “overly broad construction of Article III § 12” and substitutes an overly ncurow interpretation which it bases on an historical travelogue of the "Constitutional debates.”

I respectfully submit the dissent should have spent more time on the plain meaning of what the Constitution says rather than what others think it says.

The plain meaning is clear: "nor shall any member of the Legislature during the term ... or within one year thereafter be interested, directly or indirectly, in any contract with the State....” SD Const, art. Ill § 12 (emphasis added).

In this context, the Constitution prohibits any legislator's direct or indirect interest in any contract with the State. I submit the dissent should avoid historical travelogues and stay at home and read the Constitution for its plain meaning.

The dissent's belief that our interpretation should be guided by the words of one of the drafters rather than by the words used, is, according to Judge Richard Posner, similar to letting dead people take responsibility for their decisions.