#26089

2011 S.D. 44

                     IN THE SUPREME COURT

                            OF THE

                     STATE OF SOUTH DAKOTA

                             * * * *

         IN RE: THE REQUEST OF GOVERNOR DENNIS DAUGAARD
           FOR AN ADVISORY OPINION IN THE MATTER OF THE
                      INTERPRETATION OF SOUTH
                        DAKOTA CONSTITUTION
                         ARTICLE V, §§ 2 and 6


                             * * * *

                      ORIGINAL PROCEEDING


                             * * * *




                               REQUEST RECEIVED JULY 13, 2011


                               OPINION FILED 07/26/11
#26089

                               ADVISORY OPINION

TO HIS EXCELLENCY, DENNIS DAUGAARD, THE GOVERNOR OF THE STATE

OF SOUTH DAKOTA.

[¶1.]        Pursuant to South Dakota Constitution article V, § 5 you have

requested an advisory opinion from the Supreme Court on two important questions

of law dealing with the eligibility requirements for individuals seeking appointment

to the South Dakota Supreme Court. You ask:

             1. What actions or intent are sufficient to satisfy the
                requirement of Article V, §§ 2 and 6 that justices of the
                Supreme Court be voting residents within the district from
                which they are appointed?

             2. At what point in time, relative to the appointment or the
                assumption of the position on the Supreme Court, must these
                actions be undertaken or intentions be formed?

[¶2.]        In 2009 Governor M. Michael Rounds posed questions relating to

Supreme Court eligibility to this Court in his request for an advisory opinion. In re

Request of Governor M. Michael Rounds for an Advisory Opinion in the Matter of

the Interpretation of South Dakota Constitution Article V, Section 5, #25467,

December 3, 2009 (unpublished). The Court declined to answer the request because

there was no vacancy on the Supreme Court that the Governor was required to fill.

We noted:

             At this time there is no vacancy on the Supreme Court that you
             are required to fill. Accordingly, there is no contemplated
             exercise of your executive power as required by Article V, § 5. In
             addition, this matter does not present a solemn occasion because
             there is little likelihood of the circumstances surrounding your
             questions arising during the time remaining in your term. Any
             opinion offered by this Court at this time would be based merely
             upon speculation. Such an opinion may not be conclusive on the
             rights of future parties and thus may not be binding on anyone.
             Although we realize your question is primarily one of law, the
#26089

              factual circumstances presented in the course of an actual
              vacancy, application, or proposed appointment may better inform
              our decision. An opinion at this time could unwittingly hamper
              your successor in a manner unforeseeable at this juncture. We
              decline to do this.

Id.

[¶3.]         Currently, however, there is a vacancy as of June 8, 2011 on the

Supreme Court created by the retirement of Justice Judith K. Meierhenry. SDCL 3-

4-1(2) (“Every office shall become vacant on the happening of . . . resignation[.]”).

              A vacancy, as defined by law, in the office of a Supreme Court
              justice or circuit court judge, shall be filled by appointment of
              the Governor from one of two or more persons nominated by the
              judicial qualifications commission.

S.D. Const. art. V, § 7; SDCL 3-4-3(1). In accordance with Article V, § 7, the

Judicial Qualifications Commission has provided you with a list of nominees for the

position vacated by Justice Meierhenry’s retirement. Justice Meierhenry served

from the Fourth Supreme Court District1 and the person you appoint will as well.

Several of the people that the Judicial Qualifications Commission nominated for

that position, however, are not residents of the Fourth Supreme Court District as of

the date of your letter. The crux of your request is the timing of when a nominee for




1.      SDCL 16-1-1 provides, in part:

        The state is divided into five Supreme Court districts from each of which a
        justice shall be selected as follows:

        ...

        Fourth District. The counties of Union, Clay, Yankton, Hutchinson,
        Hanson, Davison, Bon Homme, Douglas, Aurora, Brule, Charles Mix,
        Gregory, Tripp, Lyman, McCook, Turner and that part of Lincoln
                                                                 (continued . . .)
                                          -2-
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appointment to the vacant Supreme Court position serving the Fourth District must

establish voting residency in that district.

[¶4.]        Pursuant to Article V, § 5, “The Governor has authority to

require opinions of the Supreme Court upon important questions of law

involved in the exercise of his executive power and upon solemn occasions.”

This provision is disjunctive. In re Opinion of Supreme Court Relative to the

Constitutionality of Chapter 239, Session Laws of 1977, 257 N.W.2d 442 (S.D.

1977). It presents two situations in which an opinion can be given. Id.

[¶5.]        In this case, you are required to exercise your executive power and

appoint a nominee to the Supreme Court vacancy. S.D. Const. art. V, § 7. The

action that you take will be affected by our answer to the questions you pose. To

His Excellency Wollman, 268 N.W.2d 820, 822 (S.D. 1978). “The power which the

people of this state have entrusted to a [Supreme Court justice] affects the people’s

lives, welfare and property to no small extent.” In re Fuller, 2011 S.D. 22, ¶ 38, 798

N.W.2d 408, 419 (quoting Cummings v. Mickelson, 495 N.W.2d 493, 496 (S.D. 1993)

(plurality)). Because you raise important questions of law involved in the exercise

of your executive power, we will answer those questions.

                                      ANALYSIS

[¶6.]        “The language used in a constitution is of primary importance in

determining when the qualification to office must exist.” Cummings, 495 N.W.2d at

498. The words used in a constitutional provision “cannot be analyzed in isolation


________________________
(continued . . .)
       County that is not included in the second Supreme Court district shall
                                                                (continued . . .)
                                          -3-
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to the exclusion of the rest of the provision.” Id. at 500. Additionally, in construing

a constitutional provision, we “must give regard to the whole instrument, must seek

to harmonize the various provisions, and must, if possible, give effect to all the

provisions.” S.D. Auto. Club v. Volk, 305 N.W.2d 693, 696 (S.D. 1981).

                      South Dakota Constitution Article V, § 2

[¶7.]        Your inquiry suggests that Article V, §§ 2 and 6 each require justices of

the Supreme Court to be voting residents of the district from which they are

appointed. Article V, § 2, however, makes no mention of voting resident or voting

residence. It provides:

             The Supreme Court is the highest court of the state. It consists
             of a chief justice and four associate justices. Upon request by
             the Supreme Court the Legislature may increase the number of
             justices to seven. All justices shall be selected from compact
             districts established by the Legislature, and each district shall
             have one justice.

[¶8.]        The language key to your inquiry is that “[a]ll justices shall be selected

from compact districts established by the Legislature, and each district shall have

one justice.” Id. “Initially, it should be noted that words such as ‘from,’ when used

with respect to measurement of time, have no fixed or specific meaning. ‘Standing

alone they are ambiguous and equivocal.’” Cummings, 495 N.W.2d at 500 (citing

Fetters v. City of Des Moines, 149 N.W.2d 815, 818 (Iowa 1967)). However, the

historical background of this provision provides guidance in determining its

meaning and intent. City of Sioux Falls v. Sioux Falls Firefighters, Local 814, 89

S.D. 455, 234 N.W.2d 35, 37 (1975).

________________________
(continued . . .)
       constitute the fourth Supreme Court district.

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[¶9.]          “Usually amendments [to the Constitution] are adopted for the express

purpose of making a change in the existing system.” Volk, 305 N.W.2d at 697. The

1972 revision of Article V that was approved by the electorate “reorganized the

article, established a unified judicial system and made numerous changes

throughout.” S.D. Const. art. V, Historical Note. Article V, § 2, combined the

former provisions of Article V, §§ 5, 6, and 11 of the 1889 South Dakota

Constitution. While changes were made, see S.D. Const. art. V, § 2 Historical Note,

significant to our analysis is that the 1972 amendment retained the 1889

requirement that justices be chosen from “districts.”2

[¶10.]         To determine the significance of the selection of justices from districts

we resort to the view of the drafting body of that provision. Cummings, 495 N.W.2d

at 499. The minutes of the Constitutional Revision Commission reveal that its

members debated whether there was a need for the geographical distribution of

justices or whether justices should be selected at large.3 It was the Commission’s

consensus that justices should be geographically distributed. The electorate in 1972

concurred in this view.




2.       Article V, § 5 of the 1889 Constitution provided: “The supreme court shall
         consist of three judges, to be chosen from districts by qualified electors of the
         state at large, as hereinafter provided.” Article V, § 5 now requires that
         justices be “selected from compact districts.”

3.       The early minutes of the Commission meetings indicate strong initial
         disagreement over selection and election of Justices on a state-wide basis
         versus selection and election by districts. Those who argued for selection and
         election on a state-wide basis indicated their intent to file a dissent to the
         district concept. Yet through future discussions and constitutional drafts, the
         report of the Commission that recommended §§ 2 and 6 in their current form
                                                                       (continued . . .)
                                             -5-
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                   South Dakota Constitution Article V, § 6

[¶11.]        Article V, § 6 provides:

              Justices of the Supreme Court, judges of the circuit courts and
              persons presiding over courts of limited jurisdiction must be
              citizens of the United States, residents of the state of South
              Dakota and voting residents within the district, circuit or
              jurisdiction from which they are elected or appointed. No
              Supreme Court justice shall be deemed to have lost his voting
              residence in a district by reason of his removal to the seat of
              government in the discharge of his official duties. Justices of the
              Supreme Court and judges of circuit courts must be licensed to
              practice law in the state of South Dakota.

It is this provision, and not Article V, § 2, that requires Supreme Court justices to

be “voting residents within the district . . . from which they are elected or

appointed.”

[¶12.]        We thoroughly analyzed the historical background, legislative history

and language of Article V, § 6 in Cummings, 495 N.W.2d at 498-502. The plurality

of the Court concluded: “We hold that a person appointed to the office of circuit

court judge must establish residency in that circuit prior to assuming said office.”

Id. at 502. Based on the plurality opinion’s analysis of § 6, we adhere to that

holding in responding to today’s inquiry. The text of § 2 establishes the same

requirement applies to persons selected by the Governor to become Supreme Court

justices. They must establish voting residency prior to taking the oath of office

which vests them with the office of justice.4


________________________
(continued . . .)
       indicates compromises were reached. The Commission’s report on these
       sections was unanimous.
4.     The criteria for determining voting residence are found in SDCL 12-1-4:

                                                                    (continued . . .)
                                           -6-
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                                 The Juxtaposition of
                     South Dakota Constitution Article V, §§ 2 and 6

[¶13.]          At first blush it appears that Article V, § 2’s directive that “[a]ll

justices shall be selected from compact districts . . . and each district shall have one

justice” is at odds with Article V, § 6’s requirement that “justices . . . must be . . .

voting residents within the district . . . from which they are elected or appointed.”


________________________
(continued . . .)
              For the purposes of this title, the term, residence, means the
              place in which a person has fixed his or her habitation and to
              which the person, whenever absent, intends to return.

                A person who has left home and gone into another state or
                territory or county of this state for a temporary purpose only has
                not changed his or her residence.

                A person is considered to have gained a residence in any county
                or municipality of this state in which the person actually lives, if
                the person has no present intention of leaving.

                If a person moves to another state, or to any of the other
                territories, with the intention of making it his or her permanent
                home, the person thereby loses residence in this state.

         In addition, South Dakota’s voter registration application requires the voter
         to declare, under penalty of perjury:

            •   I am a citizen of the United States;
            •   I actually live at and have no present intention of leaving the
                above address;
            •   I will be 18 on or before the next election;
            •   I have not been judged mentally incompetent;
            •   I am not currently serving a sentence for a felony conviction
                which included imprisonment, served or suspended, in an adult
                penitentiary system;
            •   I authorize cancellation of my previous registration as written
                below.

         http://www.sdsos.gov/electionsvoterregistration/votregformlongbweffec
         tive20080908 (last visited July 15, 2011).

                                              -7-
#26089

The members of the Constitutional Revision Commission, however, were acutely

aware of the inconsistencies caused throughout the years by heavily amending the

1889 Constitution. See State v. Wilson, 2000 S.D. 133, ¶ 8, 618 N.W.2d 513, 516.

In drafting the 1972 Constitution they sought to avoid inconsistences and conflicts

between provisions. Id. It is this Court’s responsibility to give a reasonable

construction to each provision, give effect to each provision, and construe them

together to make them harmonious and workable. See Volk, 305 N.W.2d at 696.

[¶14.]        In Cummings, 495 N.W.2d at 499, we noted that the drafters of Article

V, § 6 eliminated the arbitrary age and period of residency requirements found in

the former Article V, § 25.

              With the above stated Commission goal of doing away with
              “illogical” residency requirements, it would make little sense to
              require an attorney to declare residency in the circuit with a
              judicial vacancy just days prior to making application to the
              Judicial Qualifications Commission or just prior to receiving
              appointment.

Cummings, 495 N.W.2d at 500.

[¶15.]        The word “justice” as used in Article V is not merely a generic

description. It carries with it a specific meaning. Before 1972, members of the

South Dakota Supreme Court were known as “judges of the South Dakota Supreme

Court.” The 1972 amendments made a specific change in the title of the judicial

office. Holders of it were now known as “justices” not “judges.”

[¶16.]        In addition, the drafters of the 1972 Constitution changed the scope of

the constitutional provision. While the 1889 Constitution referred to “person . . .

eligible to the office of judge,” Article V, § 6 refers to “[j]ustices of the Supreme

Court, judges of the circuit courts and persons presiding over courts of limited

                                            -8-
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jurisdiction[.]” Cummings, 495 N.W.2d at 501. “Just because an applicant obtains

the right to hold office does not automatically make him or her into a circuit court

judge.” Id. The 1889 text references a person who had the legal opportunity to

become a judge at some point in the future while the 1972 text contemplates a

situation where the individual has already achieved that status.5 Thus, Article V, §

6 applies to “justices,” not a “person . . . eligible to the office of a [judge],”

“applicants,” “certified applicants” or the like. Cummings, 495 N.W.2d at 501.

Consistent with that Article V, § 7 which says a vacancy shall be filled by

“appointment” from a list of “persons” who hold the status of “nominated by the

judicial qualifications commission.” Although “appointed” to become a Supreme

Court justice, one does not achieve that office until he or she takes the oath of office

and it is confirmed that he or she is licensed to practice law in South Dakota, a

resident of South Dakota, and a citizen of the United States.

[¶17.]         An early case involved a vacancy on the Supreme Court due to death.

In re Supreme Court Vacancy, 4 S.D. 532, 57 N.W. 495 (1894). The Court held that

the vacancy would continue to exist until there was a person authorized to assume

the office and that person commenced discharging the duties of the judicial office.

Id. at 534, 57 N.W. at 495. Under this logic the current vacancy due to the



5.       That interpretation is reinforced by the next two sentences of Article V, § 6,
         both of which reference “justices” and not those selected to become one in the
         future. The first says that “[n]o Supreme Court justice shall be deemed to
         have lost his voting residence in a district by reason of his removal to the seat
         of government in the discharge of his official duties.” The final sentence says
         that “justices of the Supreme Court . . . must be licensed to practice law in
         South Dakota.” Thus, all three sentences of Article V, § 6 reference the rights
         and duties of sitting Supreme Court justices.

                                              -9-
#26089

retirement of Justice Meierhenry continues to exist until her appointed successor

commences discharging the duties of office of “justice.” Accordingly, we hold that

voting residency must be established prior to assuming office by taking the oath of

office. Cummings, 495 N.W.2d at 502.6

[¶18.]         A similar analysis applies to Article V, § 2, which provides: “[a]ll

justices shall be selected from compact districts[.]” There the drafters of the 1972

Constitution struck a balance to ensure that the best qualified person would be

selected and that each portion of South Dakota would be represented on the

Supreme Court. The use of the term “justice” in Article V, § 2, as in § 6, indicates

that the triggering event for both sections is when the oath is taken and the

governor’s appointee becomes a justice. Establishing voting residency in the district

prior to taking the oath also establishes selection from the district.

[¶19.]         Consequently, a person selected by the Governor to fill a vacant seat

on the Supreme Court becomes a justice by qualifying for office by taking an oath or

affirmation. SDCL 3-1-5. Prior to taking that oath, however, that person must

fulfill the eligibility requirement to hold that office including establishing voting



6.       The Cummings opinion further noted with regards to the Commission’s
         drafting:

               An early Commission draft of September 3, 1970, contained a
               requirement that a Supreme Court justice be a resident “when
               appointed or elected.” Thus, it is clear that the Commission
               considered the concept of residency prior to taking office in some form.
               This language was not retained and after numerous subsequent drafts,
               Art[icle] V, § 6 was to become the Commission’s recommendation
               without dissent.

Cummings, 495 N.W.2d at 502 n.10.

                                            -10-
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residency in the district from which he or she is appointed. By doing so, that person

becomes a justice after taking the oath and complies with the constitutional

directives of being a voting resident of the district from which he or she was

selected.

Respectfully submitted this 26th day of July, 2011.



_____________________________

David Gilbertson, Chief Justice




______________________________________

Glen A. Severson, Supreme Court Justice




________________________________________________

Judith K. Meierhenry, Supreme Court Justice (Ret.)




                                         -11-
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[¶20.]       I agree with the majority’s opinion regarding the acts necessary to

establish voting residency. See supra note 4. With respect to the time of

establishing residency, three constitutional provisions control. South Dakota

Constitution article V, § 2 requires that justices be “selected from compact districts

established by the legislature.” (Emphasis added.) Article V, § 6 requires justices to

have voting residency “within the district . . . from which they are . . . appointed.”

(Emphasis added.) And Article V, § 7 requires that Supreme Court vacancies “shall

be filled by appointment of the Governor[.]” (Emphasis added.) Because the

Governor’s selection of justices must be “from compact districts,” and because the

selection must be by “appointment,” I conclude that voting residency must be

established at the time of the appointment; that is, at the time the Governor’s

appointment becomes final by its filing in the office of the Secretary of State.

[¶21.]       As the majority opinion notes, there was disagreement among the

members of the 1972 Constitutional Revision Commission whether Supreme Court

justices should be selected from districts or from the State at large. See supra ¶ 10.

The disagreement was resolved by the 1972 language in Article V, § 2 retaining the

requirement that “[a]ll justices shall be selected from compact districts . . . and each

district shall have one justice.” The 1972 revision further requires that the

Governor’s selection be a voting resident within the district from which they are

“appointed.” S.D. Const. art. V, § 6.

[¶22.]       Our interpretation of these provisions should not render the words

“appointed” and “from compact districts” meaningless. In our prior decision on the

time for establishing residency for judicial office, we noted that “[n]o wordage should


                                           -12-
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be found to be surplus. No provision can be left without meaning. If possible, effect

should be given to every part and every word.” Cummings v. Mickelson, 495 N.W.2d

493, 500 (S.D. 1993) (Gilbertson, Cir. J., plurality) (internal citations omitted). To

give meaning to the words “appointed,” “from compact districts,” and a “voting

resident[] within the district,” the person appointed by the Governor must have

established voting residency in the vacant district at the time of the appointment.

[¶23.]       “SDCL 3-4-6 sets forth the requirements for [gubernatorial]

appointments. They must be in writing and filed with the Secretary of State.” Id. at

496 n.3. “Appointments are complete when the appropriate certificate of

appointment is filed with the Secretary of State.” Id. at 504 (Steele, Cir. J.,

concurring in result). See also Burke v. Schmidt, 86 S.D. 71, 80, 191 N.W.2d 281,

286 (1971) (stating that the office of the Secretary of State “is the place

appointments are required to be filed”). Because filing the appointment with the

Secretary of State is the last executive act necessary to effectuate an appointment,

residency must be established in the district by the time the written appointment is

filed.

[¶24.]       I disagree with today’s majority opinion adopting the writing of two

Justices in Cummings. 495 N.W.2d 493 (Gilbertson, Cir. J.; Miller, C.J.) (concluding

that residency must be established at the time the candidate qualifies for office by

taking the requisite oath rather than the time of appointment). See supra ¶¶ 12, 17-

19. The Constitution speaks only in terms of the Governor’s selection by

appointment, and there is a clear difference between the Governor’s act of

appointment to an office and a candidate’s subsequent act of qualifying for that office


                                           -13-
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(the oath). The Legislature has recognized that these acts are different and that

each act occurs at a different time: “Persons appointed to offices . . . shall qualify in

the same manner as is required of those elected, the time of which shall be

prescribed in their appointment.” SDCL 3-4-7.

[¶25.]         Nevertheless, the majority eschews the word appointment in favor of

the word qualification. The majority concludes that a person may be appointed from

a district other than the one in which the vacancy exists as long as the person

establishes residency prior to “assuming office”; i.e. “prior to taking the oath of office

which vests them with the office of justice.” See supra ¶¶ 12, 17. There is, however,

no constitutional language referring to residency at the time of oath, qualification, or

assumption of office. The Constitution requires residency within districts and the

Governor’s selection of persons by “appointment” from districts. S.D. Const. art. V,

§§ 2, 6 and 7. The majority’s view, that the residency requirement only applies when

a person already appointed later assumes office, renders the words selection “from”

districts by “appointment” meaningless.7



7.       The majority essentially concedes that the word “appointment” from districts
         is meaningless when it acknowledges that under its view, the triggering event
         for residency is when the “Governor’s appointee” (a person already appointed)
         ultimately becomes a justice. See supra ¶ 18 (emphasis added). Further,
         since the oath can only be taken after appointment, it is difficult to
         understand how the majority can conclude that “[e]stablishing voting
         residency in the district prior to taking the oath also establishes selection
         [(appointment)] from the district.” See id.

         The majority suggests the failure to adopt a 1970 Constitutional Revision
         Commission draft suggests that the 1972 final version eliminated any
         requirement that the applicant be a resident of the district “when appointed or
         elected.” See supra note 6. The Commission minutes do not reflect why that
         draft was proposed or why it was not adopted. But more importantly, the
                                                                     (continued . . .)
                                           -14-
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[¶26.]          Moreover, because Article V, § 6 governs both appointments and

elections, under the majority’s view, persons now seeking election for circuit

judgeships will no longer have to become a voting resident of the circuit at the time

of an election. This will permit lawyers and judges in one circuit to run for circuit

judgeships in other circuits without ever becoming a voting resident, unless they are

fortunate enough to defeat the resident judge in the election. In adopting the 1972

amendments, the voters could not have intended the majority’s view. Judge Steele’s

controlling opinion in Cummings (requiring residency at the time of appointment or

election) should continue to control the time of residency question. 495 N.W.2d at

502-04 (Steele, Cir. J., concurring in result). Only that opinion reconciles all of the

1972 constitutional revisions. See id. at 504 (“reconcil[ing] all of the new provisions

with the old [to] have the effect of treating judicial candidates and appointees

equally in terms of residency requirements”).




________________________
(continued . . .)
       Court’s suggestion is inconsistent with the final language requiring that
       justices have voting residency in the district from which they are “appointed,”
       that justices be “selected from compact districts,” and that the Governor make
       that selection by “appointment.” S.D. Const. art. V, §§ 2, 6 and 7.

         Finally, “nothing in the legislative history of Art[icle] V, § 6 . . . indicates any
         intent to change the old requirement that one need only be a resident of the
         circuit [or in this case district] at the time of election or appointment; the
         intent was merely to eliminate the age and [one year] durational residency
         requirements.” Cummings, 495 N.W.2d at 504 (Steele, Cir. J., concurring in
         result). The Commission thought the age and one year residency provisions
         were “[a]rbitrary standards.” There is, however, no history suggesting that
         the Commission rejected all requirements of being a resident at the time of
         election or appointment. See id.

                                              -15-
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______________________________________

Steven L. Zinter, Supreme Court Justice


[¶27.]      I concur with the writing of Justice Zinter.




_________________________________________

John K. Konenkamp, Supreme Court Justice




                                          -16-
