Last updated on 2016-03-25
Alas! The Governor’s super power is not absolute!
The South Dakota Supreme Court has told Governor Dennis Daugaard that it will not issue the advisory opinions he requested on Senate Bill 136 and Senate Bill 159. Evidently the constitutionality of tax incentives for grassy buffer strips and stealth vouchers constitutes neither an “important question of law” nor a “solemn occasion.”
I checked with the Court this morning; their spokesperson says the Court will be issuing an opinion on why it won’t issue opinions on these matters. Stay tuned to the UJS Opinions page for that document.
Whatever the Court’s reasoning, Governor Daugaard will have to make his own call on whether to sign or veto SB 136 and SB 159. In the absence of assistance from the Court, it may be all the more important for the rest of us to weigh in with our calls and letters to help the Governor make the right decision before his veto deadline of Saturday, March 26. (Hint: the right answers are Yes on grassy strips, No on state credits for religious schools!)
He wanted cover to veto the vouchers bill, but the Supremes told him he’s on his own. Now when he vetos vouchers He’ll get the Howies all fired up to primary his moderates. Can he push the veto back beyond the candidate filing deadline of 3/29?
Has the Supreme Court ever gave an opinion to the Governor? Wouldn’t traditionally the Attorney General give this opinion as the Supreme Court is a separate branch of the government?
Am I reading too much into this (unseen) decision to say that if 159 is not now an “important question of law” that if challenged post-implementation, our Supremes will not choose to hear it on appeal either?
The SD Supremes have to hear the appeal if it goes to court. They are the only appellate court in SD state court.
Weigh in with the Governor on these issues before it’s too late. You can use the link below to contact him.
http://sd.gov/governor/contact.aspx
No can delay, Ror! Veto deadline is Saturday; Legislature reconvenes next Tuesday for Veto Day, same day as petition deadline. But come on: does anyone really believe the Howies can fire up in any politically effective way?
Joe, yes! Our Court has issued advisory opinions to Governors Mickelson, Janklow, and Rounds used this Article 5 Section 5 power. There are other past instances.
So Darin, on O’s question, the state Supreme Court doesn’t have the option the U.S. Supreme Court does to not hear a case? Why is that?
I’m just spitballing here Cory but since the SD Supreme Court is the only appeals court for the state they have to hear all appeals. The US court system has numerous circuit courts of appeal to hear appeals and the SCOTUS only hears appeals when two or more circuit courts of appeal are in disagreement.
They do NOT have to accept an appeal.
don’t kno off hand but agree w/darin. as long as claim is w/i cts’ specific jurisdiction. but dd might know what s/he is posting about fairly emphaticlly. i’m too lazy to look it up but disagree w/dd often, as I recall.
Although, this read is 41 years old, I found this Fordham Law Review article on state supreme court advisory opinions helpful in this discussion:
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2178&context=flr
Specially the issues raised beginning on pg. 106 of the article:
“The benefits and liabilities of the advisory opinion mechanism become readily apparent if the subject matter of advisory opinions is divided into three groups: internal governmental affairs; facial constitutionality of legislation; and legislation the constitutionality of which can be determined only on its application to particular facts.”
pg. 107
“In the last group-legislative measures, the application of which would be unconstitutional in a particular factual situation-advisory opinions are of limited value and, possibly, may be harmful. The justices cannot be expected to imagine all possible applications of the proposed act for purposes of determining its constitutionality in each situation which might ultimately arise under it. All they can reasonably be expected to do is to judge the bill’s facial constitutionality, leaving for future litigation the constitutionality of the act as applied.”
Based on this article and especially the last quote, Daugaard’s intent for the advisory opinions would not or should not be achieved or entertained, it appears.
However, if this is the case, then the question now becomes, when reviewing past AOs, to what significant degree has the SD Supreme Court refused to address AO requests which fall under the “legislative measures” category.
Cory, Nick is basically correct. The SD Supreme Court is the only appellate court in SD state court. Some states have courts of intermediate appeal before reaching a state supreme court. Also, the federal court system has circuit courts of appeal before you reach the US Supreme Court.
I am not familiar with any procedure whereby the SD Supreme Court can choose not to hear a case and furthermore it would not occur in this instance because we are talking about an interpretation of the SD Constitution. The appeal to the SD Supreme Court is an appeal of right. The SD Supreme Court would have to rule on the question of whether these laws violate the SD Constitution.
You do not have an appeal of right to the US Supreme Court from a decision of a US Circuit Court. SCOTUS has to agree to hear the case. I thought it took 4 justices to vote to grant a writ of certiorari for SCOTUS to agree to hear the case. I could be wrong.
Disgusted Dakotan is wrong. “In South Dakota, with the
exception of small claims actions, everyone
has the right to appeal to the Supreme Court.” See pg. 18 of the Guide to the SD Unified Judicial System.
https://ujs.sd.gov/media/pubs/bluebook.pdf
Darin’s on target The only manner in which the SD Supreme Court may avoid hearing an appeal from circuit court is if there is /are procedural flaws in the appeal: mundane stuff that too often trips up folks such as filing too late, wrong party, trying to appeal something not ruled on earlier, etc.
Situationally when SD circuit courts hear appeals from magistrate courts then those circuit courts act as one-justice appellate courts, using the rules of procedure for appellate courts. In those cases, then further appeals to the state supreme court are discretionary requiring a vote of the justices to decide to hear the case.
In the federal courts one has a right to one appeal, with second appeals (or third bites at the apple) being discretionary. The SCOTUS tends to select cases where interpretations of law are split between circuits, important questions of law, issues lacking precedent, and directly hears a few cases such as disputes between the states, treaty interpretations, etc. SCOTUS never gives advisory opinions.
Our governor could order an AG’s opinion – at a risk that may be a self-licking ice cream cone of questionable worth.