*1 agency, Report Court, in a to the top dated asserting the mother from her natural 18, 1985, March adopting told the court parental rights. fundamental Nor can “biological rights that the Department mother’s were of Social Services’ error be terminated December vehicle, avenue, 1982 and the used as a Or- by or means Therefore, der was filed.” adoption which the mother lоses her child. While order knowing was entered without Department of Social Services should appeal adoption the case was on and an certainly most not be rewarded for commit rights order was entered when the mentioned, ting the error hereinbefore nei mother had finally not been ther terminated. punished should the mother be adoption order was flawed. Jus- emоtionally traumatized because of the re Fosheim, writing tice for this Court occurring sults therefrom. When the Everett, by 286 N.W.2d at mother’s sister closed stat- and brother-in-law did not ing: only procedure by “The adopt the which the child and the child was returned adopted Oaklands Dakota, could have the child to South expedi mother moved without Ms. Everett’s consent was tiously regain custody under of her child. provisions Furthermore, none this Court has held that a applicable.” which were parent may validly 25-6-4 was withdraw his/her con entirety. cited in its adoption refer to sent subsection proper under circum particularly applicable which is Everett, stance. Adoption Matter this 25-6-4(4), case. Please note SDCL which In Matter of D.D.D., reads: (S.D. 1980), N.W.2d over an
to the (S.D.1985): in a started linquishment, of notice vоluntariness of a natural father’s waiver this Court remanded a case to the lower court with instructions to determine the tion special termination of his out, Sichmeller, illegitimate concurrence in “A power which is the intended to proceeding child. As I of attorney to consent for Matter of provide only parental way voluntary expressed this case Adop rights re judge may who: consent of his custody of the (4) last No child tion is [*] Has been expired. (Emphasis resort final [*] waive consent from a judicially parents. the time for an [*] child, appeal adopted if n deprived of the to the court However, supplied.) without the $ adjudica- parent appeal $ parental relinquishment of unwanted children, relinquishment not for the of chil
dren genuinely who are par wanted
ent.” Id. at 875. I also approval, cited with for it is a work of humanity technical —not ity , Romero, In re — Id. No act of the
mother thus
еstoppel
creates error or
and I
would affirm previous
decision rendered
REQUEST
In re
FOR OPINION OF the
J.M.J.,
written document dated con- senting adoption to the child. This *2 excellency, Janklow,
To his William J. Governor of the State of South Dakota.
Pursuant to the vested in the Governor under Article 5 of the South Constitution, you requested have opinion an Court on an important question of law involved your power. exercise of The fac- tual basis is: Legislaturе In enacted SDCL 21-32-15 and SDCL 21-32-16. SDCL 21-32-15 authorized the State of South purchase public Dakota to liability insur- purpose ance insuring the lia- bility executive, leg- and its islative, officers, judicial agents, and or employees. provides SDCL 21-32-16 public liability to the extent that purchased under SDCL 21- 32-15, and to the extent there is cover- thereunder, age afforded the State shall be deemed to have waivеd the common sovereign immunity law doctrine of and consented to suit in the same manner any party other be sued. In Legislature enacted that, provides except which in SDCL execu- tive, legislative, judicial employee, and agent officer or of the State is immune damages from suit or sought against or him in either his capacity individual or official for min- discretionary isterial or аcts committed acting while of his em- ployment agency. the State entered into contract
with public liability Colonial Penn for insurance which afforded executive, varying legisla- limits to the tive, judicial employees, officers or following of the State in the ar- comprehensive general eas: liability, doctrine liability, per- waived common law have comprehensivе automobile errors injury liability, sovereign immunity and consented to sonal limit of liabili- aggregate omissions. in the same manner suit excluding de- payments, all claim ty for may be sued. party costs, policy Five fense under said officers, Immunity *3 ($5,000,000.00)in a one- Million Dollars pro- Except as employees agents. and year period. 21-32-16, any employee, offi- vided Office of October the State On state, acting while agent of the cer or Bureau of Ad- Management, Executive employment scope the his or within of from notification ministration received acts are ministerial agency, whether such Underwriters, Ltd., the of- Entity Public discretionary, from suit is immune or or Penn, of representative for Colonial ficial brought against liability damages for desig- policy cancellation the insurance him in individual or official either his Employees the State of South nated as capacity. PEC400665, on Decem- effective Dakota questions Your are: Underwriters, Entity ber Public availability of rein- the lack of Ltd. cited as the for cancellation of surance reason I. policy. the Legislature enacting the Has Manage- of Executive
The State Office to constitutionаlly extended ex- 21-32-17 ment, has ex- Bureau of Administration ecutive, legislative, judicial employ- and a sim- possibility procuring the plored State, ees, or the in- agents officers special comprehensive governmental ilar cluding State boards and members of liability policy other sources. How- from commissions, immunity from suit or lia- ever, virtually no chance that there sought bility damages fоr or coverage will insurance be obtained such against them in their individual either or given the mass of the insurers exodus capacity or official for ministerial discre- coverage line due to the from this acting tionary acts committed while with- unavailablity of reinsurance. Several employment, agency of their the very prob- facing this states are likewise or duties? then, As of the lem. December executive, legislative, judicial em- and officers, the ployees, agents of State and II. liability cover- be without insurance will govern- Department of If the Executive age. implements procedure its own for ment in the factual Those sections of law cited defense, monies and establishes for and
statement
relevant
state:
given
and
for ex-
waived
consent to suit
Liability
insurance —Pur-
ecutive, legislative,
judicial employ-
of South Da-
by state. The state
chase
ees,
agents of the
officers and
kota,
through
commissioner
ad-
including
boards
members of State
ministration,
pub-
pay for
obtain and
commissions,
Legisla-
liability
the extent and
lic
insurance to
ture under SDCL 21-32-16?
expedient by
purposes
considered
South
Constitution
purpose of in-
the commissioner for the
part,
has
provides,
“The Governor
au-
state, its
suring
liability
offi-
require
thority
opinions
cers,
employees.
important
law
upon
questions of
in-
immunity to
21-32-16. Waiver
ex-
pow-
volved in the exercise of his
insurance
tent
—Consent
upon solemn
The can-
er and
occasions.”
insur-
To
extent such
suit.
cellation of the state’s
insurance
21-32-
purchased pursuant to
ance is
inability to
policy, coupled with the
obtain
coverage is
to the extent
afforded
15 and
urgent
thereunder,
has raised
replacement
be deemed
state shall
Arcon,
important questions concerning
doctrine of
immunity.”
constitutionality
construction and
of SDCL supra,
depar
at 410.
there is to be a
“[I]f
and the
construction of SDCL
rule,
ture from the
policy
impact
21-32-16. Because оf the
these must be
declared and the extent of
n government,
circumstances have on state
fixed
legislature.”
Merrill
Bi
your request
we accommodate
for an advis-
rhanzel,
310 N.W.2d
ory opinion.
always acknowledged
we have
legislature’s
found
I.
III,
impose
27 to
conditions and
Any legislative act
is accorded a
upon bringing
limitations
an action
presumption
favor of constitutionality.
the state. See
Griffis
Independent Community Bankers Ass’n
*4
State,
(S.D.1984).
346 N.W.2d
v.
That
spoken
subject;
prior
now
our
presumption is not overcome until the con
“judge-made” law has been overruled and
stitutionality
clearly
of the act is
and un-
SDCL
21-32-17 now defines
mistakenly shown and there is no reason
able doubt that it violates fundamental con
interpretation
limit our
of the immu
principles.
stitutional
South Dakota Ass’n
nity granted
protect
by SDCL 21-32-17 to
(S.D.1979).
v.
two-pronged.
immunity may be
An assertion of waived
II.
specific legislative au-
ineffective unless
inquiry
We divide
second
into
governmental entity
thority to sue the
First,
two sections.
if the executive de
given,
unless there are
been
partment
government
implements
its
funds available for
satisfaction
own
for the defense of
power reposed
gov-
in the
judgment, or
will the defense of claims constitute liabili
entity
raising
ernmental
of funds
ty
pursuant
necessary
satisfy
recovery against
a
thereby
waive
and consent to
added)
(emphasis
it.
suit under SDCL 21-32-16?
Shepard’s/McGraw-Hill, Civil Actions
Generally,
sovereign immunity
3.15,
Against
State Government §
by defending
cannot be waived
a
*5
(Winborne
1982).
Maryland
ed.
The
Court
there is clear
suit unless
Appeals
of
held that to constitute an effec
statutory authority
a
to effect such waiver.
waiver,
must
tive
statutes
contain
Dep’t
Treasury,
Ford Motor
v.
See
Co.
of
immunity
“both a clear waiver of
as to
323
65
L.Ed. 389
U.S.
S.Ct.
89
agency’s
matters
(1945);
Eidenmiller v.
120 Neb.
obligations,
duties and
and an authorization
(1930);
447
Eagle
233 N.W.
State ex rel.
appropriation
satisfy
for the
of funds to
a
Hall,
(Mo. 1965);
ton v.
389
798
S.W.2d
judgment
against
it
in
rendered
tort.”
Eaton,
(10th
Williams v.
To extent such is insurance eign immunity. purchased pursuant to 21-32-15 and to Respectfully day submitted this 18th the extent afforded thereun- December, 1985. der, the state be shall deemed to have waived the commоn law doctrine of sov- JON FOSHEIM ereign immunity and consented to suit Chief Justice the same party manner that GEORGE W. WUEST may be sued. E.W. HERTZ plain meaning provision tois Acting Justices waive immunity only to the extent I find query regarding Because an is a party a traditional unspecified procedure payment contract indemnifying state for to, vague respond claims to too losses it would be liable for the absеnce join part cannot opinion. immunity. 58-1-2(1). See SDCL Monies of claims is anti- clearly aware of the notion of concept thetical to the immuni- self-insurance it has because used this con- ty- cept the area of compensation. workers’ Sommer, In High Grade Oil v. Self-insurance, See how- (S.D.1980), we said that ever, is a concept different than *6 payment premiums of insurancе for state insurance. liability coverage did not waive premise start from the so- legislative because there was no called self-insurance is not at Oil, In High authorization. Grade the all. It is the antithesis of insurance. simply paying premiums state was to insur- The essence of an insurance contract is merely companies ance who came into shifting risk of loss from the court of and raised the defense to the insurer. insured essence Here, immunity. suggestion there is a self-insurance, colloquial a term of cur- department willing to use rency precise legal rather than of mean- some funds from unknown source to pay ing, is by the retention risk of loss directly. claims This smacks of a tort upon one it is directly imposed whom which, procedure claims if it is funded contraсt, (citations omitted) by law or action, legislative could well constitute a American v. Passaic Nurses Ass’n Gener- I would 491, 486, Hosp., N.J.Super. al 471 A.2d have to more about this scheme know 66, (1984). Self-insurance “involves no the source of the I funds before could ordinarily in insurance as that term is used knowledgeably question. answer the In all statutes, statutes, regulatory tax respects, opinion. other I concur in Keeton, legal R. contexts.” Insur- ROBERT E. MORGAN (1971). 1.2(b)(6), Law ance 7-8 Under- Associate Justice standing the words of SDCL 21-32-16 sense, ordinary their respectfully grant statute does not I would decline to expressly state that request. self-insurance or Governor His Janklow’s legislative establishment of a fund for the belongs in the arena and should We, claims the state would be a waiver not be answered this in the Court. purse duty ic сontrols the branch,
judicial owe a constitutional for such strings appropriation and that the executive simply not to accommodate but, rather, monies must be defensive government, branch of legislative accomplished by an in futuro equal. That is Separate check on it. but content of such act act. The form and We need not “accommo- the watchwоrd. entirely appropriation is unknown office and/or requests date” from the Governor’s present time and this Court cannot has histori- at the legal opinions. This Court any opinion general as to the con- “render cally spurned parte opinions ex where legisla- (a) (b) stitutionality validity of future rights private parties exist or action, the terms of which neces- tive exact later be involved. could speculation and con- sarily entirely rest Opinion Judges, jecture.” In re QUESTION ONE 186, (1926). 210 N.W. S.D. question, the clear As concerns the first also, Opinion Judges, See question. import of the statute answers the N.W. This import peripherally addressed Its was also ques- opinions not render on Court should 63-3, Holland v. Yankton Sch. Dist. it, precedent, would bind on tions which Therefore, would legislature might legislative acts which advisory opinion to the decline to render an Therefore, I in the future. would pass Court, except This Governor. advisory opinion render an based decline to in South Dakota Constitution conjecture. When ac- speculation and legal of the Gover is not the advisor requests, commodating gubernatorial Attorney nor. The General is the Gover great cautiоn. In re is to exercise advisor, legal Reso nor’s see In re House Court, Opinion No. 72 N.W. lution 399, 402, 209 N.W.2d In re (1897), 1-11-1(6), and and SDCL 1890, 8 S.D. Chapter Session Laws of salary he 1—11— receives a therefor. SDCL 66 N.W. Attorney 2. The has a staff of General however, question, im- second Governor’s competent attorneys and the Governor many hypothetical situations such as plies questions to the Attor should address his for the defense” and “establish- “procedure ney than to short-circuit the General rather payment of claims” es monies orderly process judicial of law and usual vague meaning, which have such a This not bind itself channels. Court should future, exceedingly that it would be dan- *7 legal rights in and either lock in or lock out to bind itself gerous for this Court future, in factual situations which have precedent. not been in а court of law. tried E. HENDERSON FRANK
Associate Justice
QUESTION TWO question, this As concerns the second question hypotheti- vague and deals with geared legislation.
cal facts toward future Although question is couched terms department’s implementa- of the executive tion of defense and establish- although ment of monies the Governor constructs and submits 4-7, budget, state’s SDCL ch. neces- recommend measures he considers Const, IV, sary, it is axiomat-