BOARD OF REGENTS, Petitioner v. CARTER, et al. Respondents
File Nos. 11310, 11312, 11313 and 11323
Supreme Court of South Dakota
April 25, 1975
228 N.W.2d 621 | 89 S.D. 40
Dennis W. Finch, Pierre, for respondent and appellant Henry E. Carter.
Kermit A. Sande, Atty. Gen., John Dewell, Asst. Atty. Gen., Pierre, for intervenor and appellant.
DOYLE, Justice.
This case involves two issues. The first is whether the South Dakota Board of Regents (Regents) may hire the services of independent counsel in bringing this action. The South Dakota Attorney General (Attorney General), as intervenor in this case, maintains that the Regents may not do so. The second is whether
The facts at hand stem from the attempts of two separate groups of the Regents’ employees to organize and gain recognition as bargaining units in their relations with the Regents. On April 29, 1972, a group known as the South Dakota Colleges and Universities Classified Employees Association (CEA) filed with the Regents for recognition as the representative of all classified employees, including clerical and blue collar employees. On May 10, 1972, Local 2446, American Federation of State, County and Municipal Employees, AFL-CIO (Local 2446) also filed with the Regents for recognition as the representative of only the blue collar employees. This latter request was later denied by the Regents who recognized the CEA as the bargaining unit representative on June 20, 1972. Local 2446 then filed a petition on June 21, 1972, with the South Dakota Commission of Labor and Management Relations. This procedure is specified in
The Commissioner of Labor and Management Relations, Henry E. Carter (Carter), conducted the appropriate hearings and issued an order on January 4, 1973, setting forth his findings thereon. Pursuant to
On October 16, 1972, the South Dakota Higher Education Faculty Association (HEFA) also requested recognition by the Regents as the representative of a second group of employees. This request was evidently later denied by the Regents in that the HEFA petitioned Carter on December 20, 1972, to exercise his powers under
The Regents then applied to the Circuit Court of Hughes County for a writ of prohibition to prevent Carter from asserting jurisdiction in each case. The Regents contend that the South Dakota Constitution, Art. XIV, § 3, vested control of all employees of the state educational institutions in the Regents, and any attempt by the legislature to infringe on such control under
In these matters the Regents have retained independent counsel and have been so represented. The Attorney General had given neither permission to seek counsel outside his office nor permission to bring this action. The Attorney General contends the Regents have no authority to hire independent counsel or bring this action without his permission in that he is the sole legal officer of the state and its agencies. The circuit court, by order dated February 15, 1973, authorized the Attorney General to intervene in these matters.
On May 8, 1973, the circuit court issued a peremptory writ of prohibition preventing Carter from interfering with the labor relations of the Regents on the grounds that
Respondents Carter, Local 2446 and HEFA, list ten assignments of error on the part of the circuit court. These assignments, while somewhat repetitious, set forth the following contentions:
- Although the South Dakota Constitution Art. XIV, § 3, vests the Regents with control and management of the state educational institutions, such control is subject to such rules and restrictions as the legislature shall provide.
- The Regents in recognizing the CEA as the representative for the clerical and blue collar workers were in reality attempting to block Local 2446‘s organizational efforts among the blue collar workers. This interference by the Regents was an infringement on the freedom of association and the equal protection of the laws guaranteed to the blue collar workers by the First and Fourteenth Amendments to the United States Constitution and by
42 U.S.C.A. § 1983 . - The Regents in recognizing the CEA were, on June 20, 1972, using the provisions of
SDCL 3-18 , and thereby waived the right to question that statute when used by another party. - The remedy of a peremptory writ of prohibition is improper inasmuch as an adequate remedy exists at law in the form of formal appeal from Carter‘s decision.
The Attorney General lists seven assignments of error which can be summarized as follows: The South Dakota Constitution does not grant the Regents the power to institute their own lawsuits
The South Dakota Constitution, Art. XIV, § 3, states:
“The state university, the agriculture college, the school of mines and technology, the normal schools, a school for the deaf, a school for the blind, and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the Governor and confirmed by the senate under such rules and restrictions as the Legislature shall provide. The Legislature may increase the number of members to nine.” (emphasis supplied)
The Regents contend, and the circuit court so held, that the plain meaning of the italicized phrase is to place rules and restrictions on appointments by the governor and confirmations by the senate. To allow the phrase in question to modify the word “control” would be, at the very least, grammatically awkward and quite possibly incorrect. While we agree that one of the primary rules of statutory and constitutional construction is to give words and phrases their plain meaning and effect, Boe v. Foss, 1956, 76 S.D. 295, 77 N.W.2d 1, and while we also agree that the reading given Art. XIV, § 3, by the circuit court is grammatically correct, we feel constrained, not only by previous decisions of this court but also by sound policy considerations, to hold otherwise. To affirm the circuit court‘s construction of Art. XIV, § 3, would establish the Regents as a fourth branch of government independent of any legislative policies. This, we believe, could not have been the intent of the people when they delegated their power to the Regents through Art. XIV, § 3.
Normally, the fundamental question in this case would be whether Art. XIV, § 3, is self-executing. If not, legislative
As I state later, we do not find the resolution of this issue necessary to this case. A short discussion, however, is necessary for us to understand the nature of the Regents’ power. In State v. Sheldon, 1896, 8 S.D. 525, 67 N.W. 613, it was held that the old Art. XIV, § 3,3 did not require senate confirmation in filling a vacancy created by the expiration of an earlier term. The court found that the legislature had not implemented the senate confirmation requirement.
“Has the constitution provided a mode for filling the vacancy by Sec. 3, Art. 14, of the constitution, which reads as follows: ‘The State University, the Agricultural College * * * shall be under the control of a board of nine members appointed by the governor and confirmed by the senate, to be designated the “Regents of Education.” They shall hold their office for six years, three retiring every second year.’ It is quite clear that this is not a self-executing provision, but one which requires legislation to render its provisions effective. It will be observed that the constitutional provision does not assume to fix the time, or regulate the manner of making the appointment. It simply makes general provisions upon the subject, binding upon the legislature and limiting and controlling its power to legislate; but with-
In State v. Herried, 1897, 10 S.D. 109, 72 N.W. 93, one of the issues was whether the amended Art. XIV, § 3, which remains intact, required the dissolution of the old Board of Regents and the creation of a new Board.
“A careful construction of the entire joint resolution (amendment) leads to the conclusion that the legislature intended, if the proposed amendment were adopted, that the local boards should cease to exist when it took effect, and that the control of the educational institutions should be exercised by the board of regents until the legislature, by appropriate enactments, could create a new board, agreeably to the constitution as amended. This appears to have been what was intended. It is the construction placed upon the matter by the legislature, and there seems to be no satisfactory reason for adopting any other view.” 10 S.D. 109, 122, 72 N.W. 93, 97.4
We found, in effect, that the new provision required a new board, but the constitution alone could not effect this change. It could neither dissolve the old nor create the new, this the legislature had to do.
While these two cases indicate the executory nature of Art. XIV, § 3, Worzella v. Board of Regents of Education, 1958, 77 S.D. 447, 93 N.W.2d 411, requires us to hold that at the very least the Regents’ control over employees has its source in the
In Worzella v. Board of Regents of Education, supra, the fact situation involved a tenured professor at State College who was summarily dismissed by the Regents without regard to their own tenure policy. This policy, if followed, prevented the Regents from dismissing a tenured instructor unless discharge was recommended by the local tenure committee and the president of the institution. The issue was whether the Regents could be bound by this policy which amounted to a delegation of the right to dismiss employees.
Judge Hanson, in speaking for a unanimous court, noted that “The Board of Regents is a constitutionally created administrative body charged with the control of all institutions of higher learning ‘under such rules and restrictions as the legislature shall provide.‘” The court then noted statutes now compiled under
“Under SDC 15.0714 the Board of Regents ‘may delegate provisionally to the president, dean, principal, or faculty of any school under its control, so much of the authority conferred by this section as in its judgment seems proper * * *.’ This is a limited power. It does not empower the Board to delegate away all of its powers or its constitutional duty of control. Under its provisions the Board may only delegate the limited authority conferred on it by the same section.
* * * * * *
“Such delegation of authority to subordinates is an unlawful encroachment upon the Board of Regents’ constitutional and statutory power of control over such college.” 77 S.D. 447, 450-52, 93 N.W.2d 411, 413-14. (emphasis supplied)
We read Worzella as finding the Regents’ control over their employees to be constitutional and not delegated. The statutes in question granted the Regents certain powers and then allowed the delegation of those powers. In holding that the Regents could not delegate their control over employees, we necessarily implied that that control was something those statutes had not granted and certainly could not remove.
While we find that the Regents’ control over employees is organic, we do not agree with the circuit court‘s construction of the “rules and restrictions” clause. We have consistently recog-
“Matters of policy are in the exclusive control of the board so long as it keeps within constitutional and statutory provisions.” 52 S.D. at 68, 216 N.W. at 585.
In later cases we noted:
“The Constitution places these schools in ‘control’ of the regents ‘under such rules and restrictions as the legislature shall provide.’ * * * And though it be conceded the regents have very broad powers in respect to the curricula of the schools under their control, it is self-evident they cannot by the exercise of that power change [the schools‘] character.”
State v. Dailey, 1931, 57 S.D. 554, 560, 234 N.W. 45, 48.
“The Constitution places the State College of Agriculture and Mechanic Arts and other educational institutions under the ‘control’ of the regents, ‘under such rules and restrictions as the legislature shall provide.’ * * * These powers are broad and comprehensive and if there are no limitations or restrictions imposed by the legislature the power to construct a building without express authorization from the legislature exists.” State College Development Ass‘n. v. Nissen, 1938, 66 S.D. 287, 294, 281 N.W. 907, 910. (emphasis supplied)
“Subject to the power of the Legislature to impose restrictions or make rules to guide its exercise, the sovereign people intended the Board should be clothed with power to control or manage these institutions.” Boe v. Foss, 1956, 76 S.D. 295, 313, 77 N.W.2d 1, 11.
“The quoted statute was enacted in the exercise of the constitutional power of the Legislature to restrict the powers of the Board of Regents.” Boe v. Foss, 1956, 76 S.D. at 317, 77 N.W.2d at 13.
There has been no ambiguity in this court‘s interpretation of Art. XIV, § 3-the Regents’ control is subject to “such rules and restrictions as the Legislature shall provide.” The quoted phrase does not merely modify the means by which the governor may appoint and the senate may confirm. This has consistently been our interpretation, and we feel that any changes to be made in this long-established principle should be made by the people and not by this court.
Having established the ability of the legislature to restrict the Regents’ control, we must now decide the limits of that restraint. The language of the constitution itself provides some guidelines-“rules and restrictions” do not erase; they must stop short of removing all power. In addition, Worzella v. Board of Regents of Education, supra, states that a statute allowing the board to delegate its authority must stop short of “empower(ing) the Board to delegate away all of its powers or its constitutional duty of control.” 77 S.D. 447, 451, 93 N.W.2d 411, 413. The court there found that the inability to dismiss employees without a recommendation from the school officials would be a total loss of control.
We believe that
This analysis does not stop here, however. Just as the constitution allows legislative restraint, it also allows the legisla-ture to make rules governing the direction of the Regents’ control.
We find Wells, however, to be inapposite here. The Employment Security Department was created by the legislature operating within constitutional limits. Assuming, arguendo, that the Attorney General is correct, those limits on the legislature exist where the constitution has reserved certain rights to the Attorney General. We are not, however, dealing only with the constitutional grant of powers to the Attorney General. The constitution must be read as a whole, and we must give effect to all constitutional provisions involved. Haggart v. Alton, 1912, 29 S.D. 509, 137 N.W. 372. Article XIV, § 3, allows the legislature to make rules governing the form of the Regents’ control, and one such rule is
“Corporate powers of board-Management of property. The board of regents is, and it and its successors in office shall continue to be a corporation, or body corporate, with power to sue and be sued, to hold and manage, for the purposes for which they were established, any property belonging to the educational institutions under its control, collectively or severally, of which it shall in any manner become possessed.”7
The portion of the circuit court‘s decision dismissing the Attorney General‘s verified complaint in intervention is affirmed. That portion of the decision ordering a peremptory writ of prohibition against Carter is reversed and remanded with instructions to enter an order dismissing the petition of the board of regents.
DUNN, C. J., concurs.
BIEGELMEIER, J., concurs by opinion.
WINANS and WOLLMAN, JJ., dissent in part and concur in part.
BIEGELMEIER, Retired Justice, who at the time of oral argument was a member of the court, sitting for COLER, J., who was not a member of the court at the time this case was orally argued and did not participate.
BIEGELMEIER, Justice (concurring by opinion).
The wording in Article XIV, § 3, of the South Dakota Constitution and general statements in the cited opinions, some of which are dicta or deal in generalities, point to no clear solution of the question presented on this appeal. Delving into the available Constitutional Debates and the Senate and House Journals of 1895 (S.J. 1895, p. 147) which spawned the now Article XIV, § 3, helps little in shedding light on the resolution of that problem. Grammar, arguably, may be reason to support the Regents’ contention that the 10-word restrictive clause applies
This court‘s opinions, from State v. Sheldon, 1896, 8 S.D. 525, 67 N.W. 613 (considering the predecessor Article XIV), down to recent opinions reviewed in Justice Doyle‘s opinion, give comfort to both views. While in agreement with much of that opinion on this question, it must be blended or reconciled with the verbiage and conclusions in the concurring opinion of Judge Campbell in State ex rel. Prchal v. Dailey, 1931, 57 S.D. 554, 234 N.W. 45, wherein it is stated that the “general scope of the powers of the board * * * are limited by the foundation purpose of the school as prescribed by the Legislature (and) [w]ithin those limits the discretion of the board of regents is vast and subject to little, if any, control,” and the more sharply drawn verbiage and conclusions of Justice Hanson in Worzella v. Board of Regents of Education, 1958, 77 S.D. 447, 93 N.W.2d 411, wherein he stated, “[w]ithout the right to employ, and the power to discharge, its employees the Board loses its constitutional right of control.” (emphasis supplied)
Conceding, as my colleagues Winans and Wollman agree, that there are some limits to the Regents’ powers, such as the inability to change the purpose of the school (Prchal) and the power over the purse (the legislative control of appropriations), I cannot agree with them that, as I measure it and Justice Doyle‘s opinion limits it,
“The ability of the Regents to unilaterally set salaries, discharge employees, or establish employment qualifications is left intact. The board‘s basic right of control is left untouched, and
SDCL 3-18 is, therefore, a permissible restriction on the exercise of that control.”
The legislature has fashioned a uniform procedure whereby state employees may organize and obtain recognition and good faith negotiations with the Board of their claimed grievances as
With those express limitations on
I concur with that part of the opinion that affirms the dismissal of the Attorney General‘s complaint in intervention.
WOLLMAN, Justice (dissenting in part and concurring in part).
I would hold that the provisions of
Perhaps the best explanation of the limitations on the Board‘s power is that set forth in Judge Campbell‘s concurring opinion in State ex rel. Prchal v. Dailey, 57 S.D. 554, 234 N.W. 45:
“As to each educational institution under the control of the regents, it must be held that the general scope of the powers of the board as to courses of study and the kind, type or nature of school that shall, in fact, be maintained, are limited by the foundation purpose of the school as prescribed by the Legislature. Within those limits the discretion of the board of regents is vast and subject to little, if any, control. Beyond those limits there is no question of controlling discretion. There is an utter lack of power and authority to act. Either the limit is there or else no limit of any sort conceivably exists.” 57 S.D. 554, 570, 234 N.W. 45, 52.
The majority opinion assumes that
This brief sketch of some of the provisions of
I concur in that portion of the majority opinion that affirms the dismissal of the Attorney General‘s complaint in intervention.
I am authorized to state that Justice WINANS joins in this dissent and concurrence.