*1 аde- decision. Tisdels not court’s SD why where or the trial quately defined Petitioner, PITTS, Carol A. Flats, LLC, 1999 Coyote erred. See court v. ¶ 1, at (defining SD review). The only state- the standard Capacity Vernon L. LARSON in His make in their brief ment Tisdels as Auditor the State to reverse the trial attempt sway us South Dakota. was that measurements used court No. 22005. wrong, alleg-
the Commission were distorted the the setback edly Supreme Dakota. in false informa- and resulted ordinance Argued Oct. 2001. however, Commission, had valid tion. The vegetation its line as Decided Dec. support for use measuring in- point, as DENR Rehearing Denied Feb. that no dam exist- formed the Commission Therefore, Byron. the DENR ed on Lake evidence, using physical
recommended like line, vegetation high to determine the was utilized watermark. This method also Zoning in Section Ordinances Thus, a County. for Beadle rational basis for the existed Commission’s decision. court, upon The trial based presented, facts found Commis- competent decision founded on sion’s arbitrary capri- evidence adequately backed cious. Commission by experts, with measurements decision findings and As we DENR ordinances. that is all that is past, have held Flats, L.L.C., See required. Coyote ¶ 16, SD 87 at 596 N.W.2d court car- trial found that Tisdels failed to proving burden of ry the Commission “personal, selfish or fraudulent аcted information, motives” or false and we with that Id. agree finding. [¶ Affirmed. 10.] GILBERTSON, Justice, Chief KONENKAMP, and SABERS and Justices, GORS, Justice, Acting
concur.
FACTS
[¶ 2.] On November Carol Pitts was elected to the South Dakota House of Representatives from District Brookings County. Pitts took the oath of office on 9, 2001, January represen- served as a tative during Seventy-Sixth Legisla- Assembly tive of the Legis- South Dakota lature. session, During Legislative Appropriation
the 2001 General Act was passed by both houses of the Legislature, signed by the Governor and became July law effective 2001. Some of the appropriations included in the Ap- General propriation personal Act were for serviсes operating expenses of SDSU CES. currently employed [¶ 4.] Pitts is Nutrition, SDSU CES as a Health and Food Safety Specialist. She has been em- ployed by SDSU CES since March 1990 subject one-year appointment and is contracts. The most one-year ap- recent pointment 1, 2001, began July contract Glover, Helsper Helsper Richard J. & through runs June Rasmussen, Brookings, petitioner. for 9, 2001, Barnett, February [¶ 5.] On the Attor- General, Attorney Mark Law- ney General of South Dakota learned from Long, Deputy Attorney rence E. Chief the media that General, Hallem, employee. Pitts was a state Jeffrey P. Assistant At- General, Attorney General Pitts that Pierre, advised tornеy respondent. employment her with SDSU CES and her Shekleton, James F. aas member of the House of Pierre, Board of Regents, for Amicus Curi- Representatives presented a conflict of in- ae. Pitts, attorney terest. her and the Attor- ney General’s Office entered into discus- SABERS, Justice. sions the matter. At the conclusion of Pitts, an employee [¶ 1.] Carol of the discussions, if advised that South Dakota University Coopera- State she continued her with employment (SDSU CES) tive Extension Service and a July State after the date on which member of the South Dakota House of Appropriation Bill General was to take Representatives seeks a Writ of Manda- effect, employment her contract would be Larson, compelling mus Vernon the State voided and she would not receive com- (Larson State), Auditor of South Dakota pensation for her services. pay her for services rendered employment her at SDSU. We decline to At- June Pitts told the torney issue Writ of Mandamus. General she intended to contin- employment SDSU On OF THE CES. REPRESENTATIVES
ue her Attorney Gener- DAKOTA the Office SOUTH LEGISLATURE June Auditor, State Vernon A al informed the OF IN- CONSTITUTES CONFLICT Larson, employed not be that Pitts could IN TEREST VIOLATION OF ARTI- then informed Pitts the State. Larson 12 OF THE DAKO- CLE SOUTH *3 for paid that she would be and SDSU TA CONSTITUTION. at any performed services Pitts SDSU Pitts a seeks Writ of [¶11.] requested Pitts and after CES June compel to to issue Mandamus Larson a pay from received leave without SDSU for payment employment warrant of her at 1, 2001. July CES effective on may A court issue a writ SDSU CES. Pitts’ believes that State plain, speedy, there is not a “where and CES and her ser- employment with SDSU adequate remedy, ordinary course the Repre- House as a vice member law.” 21-29-2. The issuance of a SDCL III § Article 12 of the sentatives violates “extraordinary Writ of Mandamus is an Constitution, prohib- Dakota which will remedy” only that occur “when the any interest, having a its Atkinson, duty to act is clear.” Baker v. indirect, in a contract direct or with the ¶ 16, SD by any law county or authorized State This has stаted Court that: legislator’s term or during enacted potent, precise is a Mandamus but reme- year argues one thereafter. State dy. power expediency; Its lies in its with employment that Pitts’ SDSU CES precision in its application. narrow It interest funds creates conflict of because commands fulfillment of an existing Legis- appropriated by the South legal itself, duty, duty but creates no Appropriation lature the 2001 General upon no and acts doubtful or unsettled pay Act for SDSU will be used to CES right. prevail in seeking To a Writ of appointment Pitts under her current con- Mandamus, petitioner must have a tract. legal right to performance dеar Pitts that she is entitled believes specific duty sought compelled to be for payment to her services SDSU CES. the respondent must have a definite le- nature argues Pitts that she disclosed the perform gal obligation duty. employment to the of her with SDSU Sec- (citations omitted) added). Id. (emphasis began retary of State when she her elec- Pitts has failed to demonstrate she process. claims she never tion She legal right” has payment “a clear for candidacy advised that and election her her employment SDSU CES. any type legal
would conflict constitute employment with her at SDSU. right legal [¶ Pitts has no clear 12.] payment her emрloyment because sought Alternative Writ CES and her as a member SDSU Mandamus which issued this Representa- of the South Dakota House of July 2001. Pitts Court asks tives creates conflict of interest within pay Larson to direct her for of Article capacity she in her as an services rendered provides: employee. SDSU shall, WHETHER EM- No member of the PITTS’ [¶10.] during PLOYMENT SOUTH DAKOTA the term for he was WITH which elect- ed, any appointed UNIVERSITY WHILE SHE elected to civil STATE A MEMBER THE OF office in the state which shall have been IS OF HOUSE created, any or the emoluments of which deriving, member directly or indi- rectly, any pecuniary shall have been increased legis- benefit from elected, for which he was latiоn legislature term nor shall enacted any appoint- civil which any member receive he is a member.It in- Governor, any suspicion ment from the the Governor tended to remove senate, might or from the dur- otherwise attach to the motives of term for which he shall ing the the members who advocate the creation elected, all appointments expenditure been of new pub- offices any and all lic given votes such mem- funds. appointment bers for such office or State, 78, 80-81, Palmer v. 11 S.D. void; shall be nor shall member (1898). Therefore, “the lan- *4 Legislature during the term for in guage the constitution applied must be elected, which he shall hаve been Janklow, as it reads.” In re 530 N.W.2d interested, year thereafter,
within one be (S.D.1995). 367, 370 directly indirectly, any in contract [¶ 14.] This Court has in strictly thereof, any county with the state or terpreted language § III 12. by any passed (luring authorized law Asphalt Surfacing Co. v. South Dakota term for which he shall have been elect- (S.D. Dep’t Transp., 385 N.W.2d 117 ed. 1986) (holding that a member legis added). (emphasis This prohibits article lature could not be a highway awarded “payment of any any part claims or thereof repair presi contract he because was the against any agree- created the state under dent of the company to which the contract express ment or contract made without awarded). Palmer, See also 11 S.D. law, authority of and all such unauthorized (1898) 78, 75 (holding N.W. 818 that a agreements and contracts shall be null and legislature member that authorized void.” Norbeck & Nicholson Co. v. State appropriation for the railroad commis (I), 32 S.D. 851 N.W. sioners could not paid employ for his argues that the mean commissioners); ment with the railroad ing § of Article is unclear and that I, Norbeck 32 S.D. N.W. 847 necessary it is to look to the intent of the (1913) (holding that a contract between the meaning provision, framers.1 The of this state regents corporation board of and a is however, unambiguous. is This has void lеgislature because member of the stated that: which authorized the contract is also a language plain.
The
of the constitution is
corporation);
stockholder in the
Norbeck
meaning
(II),
Its
cannot be
mistaken.
& Nicholson Co. v. State
33 S.D.
(1913) (same).
§
purpose
apparent.
Palmer,
is
[Article
12]
awith Justice, GILBERTSON, Chief (dissent- GILBERTSON, Chief Justice joined by opinion dissenting files ing). AMUNDSON, Justice. respectfully I I would [¶ dissent. 22.] GORS, (concurring). Acting Justice sought by writ mandamus grant state argues that other overly this disagree Pitts. with Court’s legislature in the have served employees 12 con- broad construction Article true, may be ac- past. Although this cerning prohibitions upon legislators. prior practice does not make quiescence An examination of the constitutional de- wide- “A longstanding, constitutional. that led the enactment of Article bates not immune from consti- spread practice is prohi- 12 establishes a more limited York, Payton v. New scrutiny.” tutional bition. 573, 600, 100 S.Ct. U.S. notes, opinion [¶ 23.] As Court’s 639, 659 L.Ed.2d process, entire Pitts has con- through the in ques- motives are not Pitts’ [¶20.] with what she ducted herself accordance wrongdoing. no and the State claims tion compliance with the law. believed to be job However, keep her allowing Pitts However, good faith “question [her] University while South Dakota State Palmer, 11 is not involved.” S.D. would set a dan- serving legislature in the Likewise, the Attorney N.W. at 819. Gen- penitentiary gerous precedent. The state problem to Pitt’s potential eral called this legislature could field a candidate for аware of attention as soon as he was made already in the hire someone who is in a it. All have conducted themselves *6 the The Mickelson Center for legislature. forthright reducing manner this case could on the band- Neurosciences climb law, question very albeit a solely a candidates. The Uni- wagon with its own important one. and Black Hills versity of South Dakota 12 of the Constitu- try [¶ 24.] could for a sena- University State each tion or both. State states: representative tor or a in Pierre could Pierre and Fort
workers shall, Legislature member of the No to the District employees fellow state elect elect- the term for which hе was during the writ Granting 24 and Senate. House ed, any civil appointed be or elected subject legisla- future of mandamus could in which have been office the state shall employees. tures to domination state created, of which or the emoluments credit, during increased the inquired shall have been To her elected, he was nor shall Regents, term for which employer, with her the Board appoint- receive civil running any member Secretary any of State before and the Governor, the the Governor no one ment from legislature. Unfortunately, for senate, dur- Legislature or from the be both a told her that she could not which he shall have ing em- the term for legislature and a state member of elected, appointments all decision a harsh been ployee. Although this is intentions, any for such mem- given as and all votes good in view of her result appointment any such office or Island RR bers Holmes wrote Rock Justice 143, void; States, 141, any nor shall member 41 shall be 254 U.S. Co.v. United (1920): 188, the term for 55, 56, Legislature during L.Ed. 189 65 S.Ct. 260 have been elected or contract between that and the he shall
which thereafter, improve payments be interest- or to or her year one state his within ed, indirectly, existing predated contract under an contract which directly thereof, any county legislаtive with the state or the commencement of service. passed law by any provision designed authorized “This constitutional he shall have been elect- term for which prevent any legislator, while he should ed. serving be the State the enactment laws, influenced, being tempted pro a meaning of constitutional Where consciously unconsciously, by any either unclear, it look appropriate vision is P.J., (Whiting, selfish interests.” Id. con- bodies, drafting to the intent specially). curring the Constitutional Con this case were 1883, Pop and 1889.4 ventions of 1885 See pro- The Constitutional debates (S.D. 238, Walker, 520 N.W.2d pen v. strong support Whiting analy- vide for the Mickelson, 1994); Cummings v. During the sis. 1883 Constitutional Con- (S.D.1993). 493, Throughout following provision vention the existence, Supreme Court of the adopted proposed for a Constitution. upon the Federal United States has relied shall, No member of the Papers, large part by authored in dele ist during the term for which he was elect- gates to the Constitutional Convention of ed, appointed or elected to civil 1787, authority for the as Court’s subse State, office in the which shall have been See, interpretation. quent constitutional created or the emoluments of which Comm’n, e.g., McIntyre v. Ohio Elections increased, during shall have been n.6, 115 S.Ct. U.S. term for which he was elected. (1995); n.6, 131 L.Ed.2d 437 n.6 Thur Journаl Constitutional Convention Massachusetts, low v. 46 U.S. XXI Department History Vol (1847).5 504, 544, 12 L.Ed. How. Collections of South Dakota Conven Constitutional provision This was carried over as provide tions of 1885 and 1889 proposal to the 1885 Constitutional Con- type authority same state level. vention in substantially the same form: instance the person No elected to the § 12 necessarily is not clear *7 any appointment receive civil shall with- example, reading from a of the text. For in this State the time for which I, Norbeck 32 S.D. elected, he all shall been and interpreted majority the of this Court the appointments, all for given and votes in an prohibitions the above article ex- any any such members for such offices However, special a con- pansive manner. appointment, or shall be void. by Presiding Judge Whiting currence in- provision only preclude a terpreted the 1885 South Dakota Constitutional Debates voting Delegate Alphonso from to create a of- sitting legislator G. Kellam6 141.. Gobel, Jr., generally History 4.An abbreviated Constitutional Convention 5. See 1 Julius Supreme the Court of the United States: The was also held in 1887. There was no discus- (1971). Propagandists Framers as 292-323 sion of the issue now before us. See Journal of the Constitutional Convention of Vol particularly 6. The comments of Kellam are History Department XXI Collections of only instructive. Not the author Kellam South Dakota 471 delegate the he was 1883, 1885 and 1889 Constitutional Conven- to re-write this selves with offices. The Legislature an amendment is fered proposed offices, words are clause. “The not authorized to make new sweep- too altogether be stricken out are could not accommodate each one with an entirely beyond object it the it ing; goes office, offices, and could not create new intended to be.” Id. at 223. Kellam expenses upon and entail the State for scope proposed the of his amend- defined purpose the accommodating individual ment. Legislature. members of the But the reported original
That section as [the provisions, reported by as legislative the proposal] Legis- makes a member of the committee, goes [sic] much farther than absolutely ineligible any lature for office that. It only disqualifies members State; may it be one of the offices Legislature holding offices which has existed in the State for a by created they of which appointive years, hundred either or members, absolutely disqualifies but office, county, an elective in the town- ineligible [sic] him and makes him [sic] State, ship or the for the term for which township for оffice from that of It me no he was elected. seems to But if down. there is reason that State, purpose can good be served committee, the members of that or the county township or the [sic] Chairman, give, why can these members municipality, making a member should disqualified, why the dis- Legislature absolutely ineligible for qualification sweeping should be so township supervisor, the office of even broad, I should like the house to be in instance, for whereas the substitute possession of it. provided which I is offer what is Id. at 226.7 The Kellam amendment was nearly all of the constitutions of the approved by the Id. Convention. states, simply making different a mеm- substantially amendment the text that Legislature ineligible ber to the adopted was to be into the Legisla- which was created office Constitution in 1889. Id. ture which he was a member or the pay which was increased while he years strug- [¶ 27.] For this Court has was a member. gled legislative to ascertain intent in nu- added). merous no (emphasis legislative Id. at 233 After some cases where con- discussion, case, further history Kellam described the stitutional exists. proposal: however, meaning of his happened. that is not what We have an instance where the of a draftsman object all [W]e understand that the provision gave precise constitutional ex- simply put that section was intended to planation delegate of what it meant. 'under such limitation of No power they provide could not them- that constitutional convention contested *8 Oviatt, Legislature ought disqualify tions. South Dakota Justice—the the not to him Moreover, (1989). offices, Judges System, and the 4 aspiring all the time from to other Kellam became one of the first three Justices created election. that have been after his upon obtaining of this Court South Dakota object simply pre- The a law to is statehood in 1889. Id. Legislature vent members of the from im- properly exercising the functions of their Delegate Moody аgreed 7. Gideon with the ends, office to their own and the amend- analysis Kellam of the Kellam amendment: by gentleman ment offered the from Brule gentleman The motion of the from Brule accomplishes object. only is the sensible and correct [Kellam] Id. at 224. Simply one. because a man was elected to 262 explanation during or his lature and the Norbeck was
Kellam’s amendment session passed. legislator. it was I cannot meaning its before state Id. this constitu- accept proposition the today opts This to follow [¶ 31.] Court as “[f]irst be dismissed tional debate Surfacing, the Asphalt which took foremost, object construing the consti- if did thаt even the not vote give effect to the intent of the
tution is
bill,
membership
appropriations
the
mere
organic
framers of the
law and of the
Legislature
the
was sufficient
invoke
Poppen,
it.”
520
people adopting
N.W.2d
§
III
12.
prohibitions
the
Scott,
(citing
at 242
Schomer v.
65 S.D.
at
contemporane-
N.W.2d
118.
find the
556,
(1937);
353, 274 N.W.
State v.
persuasive
debates more
ous constitutional
Jorgenson, 81
S.D.
provision,
as to the intent of this
rather
(1965)).
Asphalt Surfacing
than this Court’s
deci-
years
Just four
after
enact-
[¶ 28.]
years
adoption.
some 97
its
sion
after
See
provision,
ment of this
this Court decided
242; Cummings,
Poppen, 520 N.W.2d
Gardner,
the case of State ex rel. McGee v.
In interpreting
263
393, 621,
else,
it
Sandford,
ing
v.
60 U.S.
that
should embrace nothing
Dred Scott
(1856)
393, 621,
A general legis bill is not situated from the same opportunity. Attorney lation in the true sense of the term. It coun- General if language implies setting apart prevails, is as its tered that could re- necessary Legislature of the funds for the use and sult a Balkanization of the departments government maintenance of the various with numerous units of state government already running employees protect of the state exis one of their * * * functioning. provid types tencе and their These of arguments interests. Moreover, disagree majority barely dry respectfully with the as the ink was on Article Palmer, when, precedential to the value of Norbeck I Senator Chilcott Asphalt Surfacing applied appointed faculty when to the to the at SDSU while Legislature. gov- remaining Early facts of this case. All of those cases involved in the sitting legisla- practices provide "contempora- contracts between the state and ernmental concerning private weighty tors commercial interests. neous and evidence of the Constitu- Maine, Obviously attorneys, meaning.” there were other well tion's Aldеn v. 527 U.S. 706, 743-44, 2240, 2261, asphalt drillers and contractors who were 119 S.Ct. (1999) provide (citing able to those services to the state and v. L.Ed.2d Printz Herein, States, 898, 905, get profes- did not to do so. Pitts is a United 521 U.S. 117 S.Ct. specialized sional educator in a field. Re- 138 L.Ed.2d 925-26 (1997)). spondent Lyndell Larson makes no claim that Pitts’ Since Senator Pe- terson, position years selection to that before Representative McKay she Alice Legislature precluded entered the Mary Wagner somehow Senator have all served in the qualified filling other remaining candidates from employees of while subsequent at the time she was elect- Regents. the Board of appro- ed to thе and voted on the $44,378, matter, salary priations practical 9. Pitts' annual bill. As a budget open position for the there was no for which to com- amounts .0003367% Regents pete. Board of Pitts was a tenured member of the .000018333% of Budget. faculty. SDSU Slate *10 reasons, I would For the above with at the dealt appropriately more membership voters, than hold that Pitts’ rather by the policy level appro- and vote on the 2001 Legislature, while now arguments, These this Court. relevant, Article priations bill did not violate to be by the contestants declared right have a to a such she does the enactment 12. As not considered were Therefore, respect- have a verbatim § 12. We writ mandamus. that were policy fully matters record of the dissent. and 1889. in 1885 considered AMUNDSON, Justice, joins this § 12 is drawn dissent. today may language
language incapable be archaic and to some to seem How- current needs. serving state’s
ever, Black once ob- Hugo as Justice
served:
I realize that Appellee, and and writ- eloquently spoken sons] strains, ten, rhapsodical sometimes v. keep the duty this Court to about the BROOKINGS, Dakota, South CITY OF with the times. in tune Constitution Corporation, Municipal Defendant must is that the Constitution The idea Appellant, and and that time to time changed and duty with a to charged this Court myself, I For changes. make those Construction, Inc., a Mills South reject that phi- with all deference must Corporation, Intervenor makers knew losophy. The Constitution Appellant. and it. provided change the need for 21299, 21313. Nos. people’s by the suggested Amendments Supreme Dakota. can be submitted representatives elected agents for or their selected people to Sept. Argued change ratification. That method Reassigned Feb. Fathers, being some- good for our Reassigned July good I must add it is what old-fashioned me. enough for 26, 2001. Decided Dec. Griswold, Connecticut, v. 381 U.S. 1678, 1702, 14 L.Ed.2d
85 S.Ct. (1965)(Black, J., dissenting).10 78.6%). (21.4% to The outcomes of of the Secre- the State from the office
10. An affidavit however, attempts eleсtions, tary modify of State shows numerous do not these §III 12 to be failures. modification of Article ap- existing text constitutional provision outright repeal the attempts Two proved by and voters in all the drafters 61.6%) (38.4 in 1974 were defeated % long these most of whom were deceased when (22.2% 77.8%). proposed A in 1976 cannot elections were held. One recent competi- to allow Constitutional Amendment original the drafters and amend intent of bidding by legislators was defeated tive 35.1% vote citation to totals 90 voters of 1889 recently in the voters More 64.9%. original years intent became the after that scope of the Article to refused to limit provision we now construe. constitutional prohibit only direct contracts