DocketNumber： 21504
Judges： Amundson, Miller, Konenkamp, Sabers, Gilbertson
Filed Date： 7/26/2000
Status： Precedential
Modified Date： 11/11/2024
(dissenting).
[¶ 30.] I agree that the 1996 amendment to SDCL 2-2-28 deals with apportionment. However, I disagree that it violates Article III, § 5 of the South Dakota Constitution. While that provision makes it the duty of the legislature to apportion itself every ten years, as the article is currently enacted it does not restrict the legislature from exercising its right to apportion on other occasions. Not only is this supported by the express language of the Constitution, but also by the history of this provision and its predecessor. Therefore I respectfully dissent.
[¶ 31.] In ascertaining the intent of the adopters of the current constitutional text we look first to its predecessor. S.D. Automobile Club v. Volk, 305 N.W.2d 693, 697 (SD 1981). The original version of Article III, § 5 enacted in 1889 stated as follows:
The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy. Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state, (emphasis added).
This article traces its roots back to the Constitutional Convention of 1883 where a similar provision passed without recorded debate. See Journal of the Constitutional Convention of 1883, South Dakota Historical Collections Vol. 21, p. 350, 358 (1942).
[¶ 32.] However, when the same draft was presented to the 1885 Constitutional Convention, a vigorous debate ensued. One faction argued that the rapid growth of the proposed new State of South Dakota justified the legislative flexibility to authorize a more frequent apportionment. An amendment was offered to strike the words “but at no other time.”
[¶ 38.] This Court was called upon to interpret this provision in Opinion of the Judges, 61 S.D. 107, 246 N.W. 295 (1933). The issue before the Court was whether the 1933 legislature had the authority to apportion itself in light of the fact that the 1931 legislature had failed to act although required to do so by Article III, § 5. We found that such authority existed.
[¶ 34.] In dictum this Court cited cases from other jurisdictions that, implied a restriction “at no other time” if one was not expressly drafted into the constitution. In so doing the Court failed to cite to our own constitutional debates as to the actual reason this express language was specifically used. It is very clear from these debates that if the legislature was to be precluded from authorizing an apportionment more often than every ten years, the limitation had to be an express one. No delegate in the Constitutional Convention of 1885 attempted to argue that the proposed text of this article contained an implied limitation on more frequent apportionments than were specifically enumerated. Further, the Court failed to consider the constitutional doctrine that was recognized by the Constitutional Convention of 1885 ■ during this debate, that the constitution is but a limit on legislative authority and not a grant of authority to that body. See State Census, 62 N.W. at 130.
[¶ 35.] In 1982 an amended version of Article III, § 5 was proposed to the voters. It passed and is the current provision, in effect.
The ' Legislature shall apportion its ' membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on .the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and -1991 and every ten years after 1991. Such ■ apportionment shall; be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.
Gone were the words “but at no other time.” “Usually amendments are adopted for the express purpose of making a
[¶ 36.] This Court presumes that the people adopted this amended constitutional provision in view of and with the understanding of the prior existing provision. Kneip v. Herseth, 87 S.D. 642, 214 N.W.2d 93, 102 (1974). An examination of the explanation of the ballot questions drafted by the South Dakota Secretary of State at the 1982 election sets out verbatim both the old text and the proposed text upon which the voters were to pass. (See attached copy). The deletion of the “but at no other time” language was obvious to the voters. “The courts are under the duty to consider the old law, the mischief, and the remedy, and to interpret the constitution broadly to accomplish the manifest purpose of the amendment.” Volk, 305 N.W.2d at 697 (citing 16 Am.Jur.2d Constitutional Law § 88 (1979) (footnotes omitted)).
[¶ 37.] Thus it is clear that the advocates of legislative flexibility who lost their argument at the 1885 Constitutional Convention were ultimately vindicated by the voters in 1982. The express constitutional prohibition against the now challenged legislative apportionment that was to occur in 1996, was removed in 1982. As such, I would hold the 1996 amendment to SDCL 2-2-28 to be constitutional.
[¶ 38.] For the above reasons I respectfully dissent.
. Advocates of allowing legislative discretion in this matter argued that the rapid growth of the new state may require apportionment after every legislative session. Opponents countered that this would create "danger” that such a decision may rest on "the interest of the political party dominant[.]” South Dakota Constitutional Convention Debates of 1885, Vol. 1 p. 207. Participating in this debate were many of the existing and future leaders of the judiciary. Delegate Dighton Corson who in 1889 was to become the first Presiding Judge of the South Dakota Supreme Court, opposed the deletion of the words "but at no other time” for the following reason:
We have a census taken every ten years by United States officials. It is provided here that in the year 1895 a census shall also be taken. There are two provided for in ten years, and certainly that is enough, and I do not think it wise to subject the state to any unnecessary expense, and I am opposed to striking out any portion of it. Id. 205-206.
Also participating in the debate were Alphonso Kellam who also became a Judge of the South Dakota Supreme Court in 1889 and Judge Wilmot Brookings who had previously served on the Dakota Territorial Supreme Court. The Chair of the debate was the Honorable A.J. Edgerton who at that time was the Chief Justice of the Dakota Territorial Supreme Court. See generally 1999-2000 South Dakota Legislative Manual, pp. 490-91.
. A dispute also arose over the words "shall” or “may” in regards to the duty of the legislature to conduct the census at the stated time.
. Chapter 1 of the 1982 Session Laws indicates that this amendment was proposed by direct initiative of the voters rather than by the legislature. Thus, unlike the 1889 provision of this article, there exists no secondary material to be of assistance in interpreting the intent of the “framers ... and the people adopting it.” Janklow, 1999 SD 27, ¶ 5, 589 N.W.2d at 626.
. The Court today reasons that under the current version of Article III, § 5, "if the Legislature were free to apportion at any time, why transfer this duty to the Court to be performed within a specific period of time in the event the Legislature fails to act?” The answer is that under cases such as Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) it was held that malapportioned state legislatures constitute a violation of the Fourteenth Amendment Equal Protection Clause and as such must be promptly corrected when found to exist. The 1982 amendment to Article III, § 5 of the South Dakota Constitution recognized this requirement and if it were not timely done by the Legislature every ten years following the U.S. Census, it would be done by the South Dakota Supreme Court to avoid violation of the United States Constitution. Given the fact that the Legislature in 1895 and 1931, despite the express mandate of Article III, § 5, had refused to perform the required apportionment, the 1982 authorization for apportionment by the South Dakota Supreme Court in the face of legislative inaction cured any future threat of this prior problem and a Baker v. Carr violation. This is an entirely separate matter from the question now before us as to whether the legislature has the authority to exercise its prerogative to conduct an apportionment more often than the minimum that is expressly mandated by Article III, § 5.