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Governor Uses Super Power, Seeks Court Advice on Grassy Buffer Strips and Stealth Vouchers

Governor Dennis Daugaard has asked the South Dakota Supreme Court to render advisory opinions on two bills awaiting his signature: Senate Bill 136, the tax incentive for restoring grassy buffer strips along streams and lakes, and Senate Bill 159, the insurers’ tax credit for private school scholarships.

Article V, section 5 of the South Dakota Constitution authorizes the Governor “to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power.”

“Questions about the constitutionality of each of these bills were raised during the legislative debates,” said Gov. Daugaard. “My request for advisory opinions will allow these questions to be resolved before I decide whether to sign or veto these bills” [Governor’s Office, press release, 2016.03.14].

First off—holy cow! Read Article 5, Section 5: “The Governor has authority to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power and upon solemn occasions.” If we regular slobs have constitutional concerns about some Legislative monstrosity, we have to let the beast become law, find someone with standing, lawyer up, go to circuit court, wrassle with the Attorney General (submit your Cory/Marty fanfic on Larry’s blog), and maybe someday a year or three from now get to argue our case in front of Chief Justice Gilbertson and colleagues. The Governor cocks an eyebrow at a bill, sends a note down the hall, and the Justices whip up an opinion by a week from Saturday? That’s awesome! That’s microwave popcorn! I want that power! I would run for Governor just to have that power! Every day in my administration would be a “solemn occasion.” Whoo-hoo!

O.K., I recognize the Justices probably don’t want the Governor interrupting their work flow with weekly requests for advisory opinions. Plus, these advisory opinions are hypothetical, nonbinding, and nonprecedential. Still, with every Session generating some bill or bills that raise constitutional questions (sometimes deliberately), I’m surprised our Governors don’t avail themselves of the Court’s advice more often.

The Governor’s request on SB 159 is the easier to explain. Senator Phyllis Heineman’s ALEC-flavored stealth vouchers bill gives tax credits to subsidize church-school tuition, which, as I pointed out last week, appears to pretty clearly violate Article 8, Section 16 of the state constitution, which says, “No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state….” The Governor asks the Court to clarify SB 159 in the context of exactly that constitutional provision.

The Governor’s request for an advisory opinion on SB 136 puzzles me. SB 136 allows farmers who seed cropland back to grass in fifty-foot-wide strips along lakes and streams to have that land taxed at lower noncropland values. The Governor asks the Court to determine whether that assessment scheme violates Article 11 Section 2. Let’s work through that section line by line:

To the end that the burden of taxation may be equitable upon all property, and in order that no property which is made subject to taxation shall escape, the Legislature is empowered to divide all property including moneys and credits as well as physical property into classes and to determine what class or classes of property shall be subject to taxation and what property, if any, shall not be subject to taxation.

No property escapes taxation under SB 136, so, so far, so good.

Taxes shall be uniform on all property of the same class, and shall be levied and collected for public purposes only.

Hmmm… does classifying riparian buffer strips as noncropland make the taxes on agricultural property non-uniform? SB 136 opponent Rep. Mary Duvall (R-24/Pierre) argued in the House that land management decisions are not taxable events, yet that doesn’t stop us from taxing land differently when a farmer makes the land management decision to take land out of production completely and turn it into a housing development. Besides, distinguishing cropland from grassy buffer strips seems no more drastic than the wild patchwork of distinctions we make between current cropland and grazing land and all the gradations of value based on soil type and historical crop values. Shall we throw out the entire ag assessment scheme and start over?

Taxes may be imposed upon any and all property including privileges, franchises and licenses to do business in the state. Gross earnings and net incomes may be considered in taxing any and all property, and the valuation of property for taxation purposes shall never exceed the actual value thereof. The Legislature is empowered to impose taxes upon incomes and occupations, and taxes upon incomes may be graduated and progressive and reasonable exemptions may be provided.

If assessing ag land based on actual use (crops, grazing, riparian buffer zones to protect the Big Sioux from all of Mark Mickelson’s CAFO crap), Article 11 Section 2 authorizes the perfect solution: a nice progressive income tax with reasonable exemptions. But there’s no SB 136 violation in this passage.

The Governor’s decisions on SB 136 and SB 159 are due Saturday, March 26. The Supreme Court has nine business days to study these two bills and offer their advisory opinions.

Minor Historical Notes: If I’d been paying attention, I’d have noticed that Governors MickelsonJanklow, and Rounds used this Article 5 Section 5 power. We are one of only ten states whose Supreme Courts issue such advisory opinions. According to a footnote in this Fordham Law Review article, an inadvertent amendment in 1972 directs the Governor’s request to the Court rather than to the Justices.


  1. Rorschach 2016-03-14 21:14

    This request is a dead giveaway that the Governor plans to veto Heineman’s bill. After Heineman tried to kill his public school funding plan he’s looking for cover to veto her obviously unconstitutional religious school giveaway bill without ticking off conservatives. What better cover than the court system?

    He could have asked for an attorney general opinion, but he didn’t trust Marty Jackley to tell him what everybody knows already. It’s unconstitutional. Marty’s looking to bolster his own campaign for governor and would have probably given the Governor bad advice that the religious school giveaway bill is constitutional. Besides being wrong, such advance advice would have made the governor look foolish when he vetos Heineman’s bill.

    This is the second year Heineman has brought this bill. She’ll be gone next year, but once the Supreme Court says this bill is unconstitutional we won’t see anyone bring it back again.

  2. Donald Pay 2016-03-14 21:57

    Boy, that is a cowardly stretch of the Constitution, in my opinion. How does the Supreme Court do this? It’s a direct invitation for the courts to putter around in the executive branch. I don’t think this part of the constitution applies to lawmaking. It applies to how a Governor can enforce a law that is in existence. Generally, this sort of thing would have arguments presented by adversarial attorneys at a lower court at a lower court.

  3. Rorschach 2016-03-14 23:28

    Here’s what I think might happen.

    The question of what taxation level to impose on riparian buffer strips does not raise a genuine constitutional issue as it simply creates another class of property in addition to those already existing. On its face that bill does not appear to violate the SD constitution, so the Supreme Court should decline to answer that question.

    The voucher bill does on its face appear to violate the constitution by giving a rebate of state tax revenue specifically as reimbursement for funds spent on private schools. The Supreme Court can and should rule on that bill.

    Nothing cowardly about either of these requests which are soundly within the authority of the constitution and the cases law developed under this constitutional provision.

  4. Nick Nemec 2016-03-15 02:51

    Are briefs submitted to the Court? If so who may submit them?

  5. caheidelberger Post author | 2016-03-15 07:42

    Ror, would there be a similar political motivation for the request on the grassy strips bill as with the hitback on Heineman on the stealth vouchers bill?

  6. Rorschach 2016-03-15 08:05

    I don’t think so. If I had to guess I’d say that request is just cover for the other request.

  7. Rorschach 2016-03-15 08:08

    I don’t think there are briefs submitted. The Supreme Court does its own research, and the opinion, like an AG opinion, is not binding.

  8. mike from iowa 2016-03-15 08:29

    A strict interpretation of the constitution should render 159 unconstitutional on its face,its butt and every other body part……… but…

  9. John Wrede 2016-03-15 16:20

    Reference briefs: Somebody should look into the possibility of amicus briefs. It is my understanding that the court can use it’s discretion in accepting amicus briefs but even then, I think if a member of the public or any group could file an amicus with the court and it’s up to the clerk and chief justice to figure out how to introduce such testimony into the discussion.

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