NOTE:
This case was orally argued yesterday.
The
SD Supreme Court handed down one decisions this afternoon, holding, inter
alia:
- Contracts for State Legislators Addressed;
Summary
follows:
IN
THE MATTER OF THE INTERPRETATION OF SOUTH DAKOTA CONSTITUTION AND STATE LAW RE:
STATE LEGISLATOR’S INTEREST IN STATE OR COUNTY CONTRACTS, 2024 S.D. 11:
The
Court’s decision is authored by Chief Justice Jensen. Justice Kern provided a separate opinion,
dissenting in part.
The
Court’s Final Conclusion, as expressed in ¶¶ 63-64 is as follows:
Conclusion
[¶63.] This
case presents an appropriate instance to exercise our advisory opinion
jurisdiction under Article V, § 5. The current state of our decisional law
concerning Article III, § 12 is not sustainable. Our holdings in Asphalt
Surfacingand Pitts, which equated general appropriation for ordinary and
current expenses with legislative authorization to enter into specific
contracts, are contrary to well[1]established
constitutional limits on general appropriation legislation set out inArticle
XII, § 2 and our cases. These holdings expressed in Asphalt Surfacing and Pitts
are, therefore, overruled.
[¶64.] Our answer to the Governor’s restated question whether
Article III, § 12 prohibits all contracts between legislators and the State is:
No, it does not. The ontract restriction stated in Article III, § 12 is not a
categorical bar on all contracts funded by the State. Instead, it prohibits a
legislator, or former legislator within one year following the expiration of
the legislator’s term, from being interested, directly or indirectly, in
contracts that are authorized by laws passed during the legislator’s term. The
purpose and effect of general appropriation legislation is restricted to simply
allocating money to fund state government; it does not, itself, authorize
specific contracts relating to ordinary or current expenses.
Justice
Kern filed a separate opinion in which she expresses a dissent in part and a
concurrence in part. Justice Kern’s
view, as articulated in ¶67, is as follows:
[¶67.] I respectfully dissent from the portion of the majority
opinion which overrules decades of established precedent to exempt general
appropriations from Article III, § 12 of the South Dakota Constitution. This
approach disregards the constitutional text and may ultimately prove difficult
to interpret as the majority opinion adopts a capacious understanding of
interest, prohibiting legislators from having any interest whatsoever—no matter
how indirect or attenuated—in contracts authorized by special appropriations.
Nevertheless, I join the majority opinion’s important holding that Article III,
§ 12 applies to “law[s] passed duringthe legislator’s term. . . not merely. . .
laws for which the legislator cast a vote.” (Emphasis added.) Additionally,
although I agree that the circumstances surrounding the Governor’s request
indeed constitute a solemn occasion under Article V, § 5, which permits this
Court to exercise our original jurisdiction, I question whether the submitted
interrogatories present “important questions of law involved in the exercise of
[her] executive power.” Rather, they seem more akin to questions from
legislators regarding their individual concerns, which is not properly within
the purview of an advisory opinion. See S.D. Const. art. V, § 5.
This
decision may be accessed at
