Hey, Nick! Do you remember asking if we could submit briefs to the Supreme Court when the Governor asks for an advisory opinion? The answer appears to be NO. Apparently, some folks tried it last week, and that’s part of why the South Dakota Supreme Court declined to issue the advisory opinions the Governor requested.
In an opinion published yesterday, our Justices write that the pro-voucher Institute for Justice asked to file a brief supporting Senate Bill 159 and the South Dakota Corn Growers Association asked to submit a brief against Senate Bill 136:
[17] The history of your request regarding SB 136 and SB 159 highlights the efficacy of giving interested parties a day and voice in court. In re Construction of Constitution, 3 S.D. at 552, 54 N.W. at 652. Your two requests for advisory opinions regarding the constitutionality of SB 136 and SB 159 were filed with this Court on March 11, 2016. Four days later, on March 15, 2016, the Institute for Justice filed a motion asking the Court to accept an Amicus Curiae brief supporting the constitutionality of SB 159. The same day, the South Dakota Corn Growers Association filed a motion for an order granting it leave to file an Amicus Curiae brief arguing the unconstitutionality of SB 136 [South Dakota Supreme Court, In the Matter of the Interpretation of S.D. Const. Art. XI § 2 and VIII § 16, 2016 S.D. 27, 2016.03.24, p. 9].
The Court says accepting those two briefs would obligate them to accept more, and that’s too much for the advisory opinion process:
[18] The appearance of private entities seeking leave to file Amicus Curiae briefs in both cases militates against advisory opinions pursuant to Article V, § 5. The filing regarding SB 136 concerning the constitutionality of that bill may also obligate the Attorney General to defend the constitutionality of the bill. See SDCL 1-11-1, SDCL 15-6-24(c). We take judicial notice, SDCL ch. 19-10, that if the proponents of SB 159 and opponents of SB 136 were allowed to file briefs, other interested parties would likely file leave to respond. This is beyond the scope of an advisory opinion proceeding. Due process considerations dictate that the affected
parties have their day in court before this Court reaches a decision on the merits [2016 S.D. 27, pp. 9–10].
In a footnote, the Court says this appears to be the first time a request for an advisory opinion has drawn amicus filings:
The amicus applicants’ attempt to join these proceedings appears to be unique in our jurisprudence. It is clear that both questions before the Court today raise significant questions which may affect private rights. We do, however, have discretion to refuse amicus requests in other cases. We do not mean to suggest that the mere filings foreclose the issuance of advisory opinions [2016 S.D. 27, p. 10].
The Justices note that neither the Institute for Justice nor the South Dakota Corn Growers Association torpedoed either advisory opinion by its filing. Those filings do signal that both questions may involve private rights that warrant a full hearing under normal due process. The Court declines to “circumvent[…] the judicial process” when the questions about the constitutionality of SB 136 and SB 159 do not constitute a “solemn occasion,” in which the matters under consideration are urgent and pose the risk of significant impact on state government or the public in general.
In addition to dispensing with the “solemn occasion” criterion, the Justices say the Governor’s request did not satisfy the other Article 5 Section 5 option for calling for an advisory opinion, “important questions of law involved in the exercise of [the Governor’s] executive power.” Read closely:
Neither SB 136 nor SB 159, the acts forming the basis for your request for an advisory opinion, appear to us to require the exercise of your executive power. To His Excellency Wollman, 268 N.W.2d at 823. The questions of law you present do not involve your veto power and once you sign, veto, or fail to sign these bills, no further exercise of your executive power is required. In re Request for Opinion of the Supreme Court, 321 N.W.2d 101, 102 (1982).5 The duties of the Department of Revenue and Regulation under SB 136 and the duties of the Department of Labor and Regulation under SB 159 “are not such as require the exercise of executive power as the term is employed in Article V, § 5 of the South Dakota Constitution.” To His Excellency Wollman, 268 N.W.2d at 822, n.2 [2016 S.D. 27, pp. 6–7].
Suer, the Governor was asking for advisory opinions to help him determine whether to sign or veto these two bills, but he didn’t ask the Court legal questions about his veto power itself. He asked about the interaction between two proposed laws and the Constitution, and that’s a matter for normal due process.
The Supreme Court thus makes clear that the Governor can’t ask the Supreme Court for an opinion on any old constitutional question that strikes his fancy. He’ll have to have Dave, Steve, Glen, Lori, and Janine over for coffee for a casual read of the Constitution… or just send Marty to court.
The filing regarding SB 136 concerning the constitutionality of that bill may also obligate the Attorney General to defend the constitutionality of the bill. See SDCL 1-11-1, SDCL 15-6-24(c).
So the Soopreme Court is covering Jackley’s backside. That is what it looks like to me.
I can’t help wondering why Daugaard didn’t seek an Attorney General advisory opinion instead.
Interesting citations, Mike. I’m not sure the first statute would compel Jackley’s participation. The Governor’s request was not a suit against the state or a suit by the state against any party. SD Corn’s filing of an amicus brief contending SB 136 is unconstitutional wasn’t a formal action against the state; it was just their effort to educate/persuade the court toward their way of thinking.
This portion of the latter statute may be more relevant:
The Governor himself drew the constitutionality of SB 136 into question, as would have SD Corn’s amicus brief. However, I’d say first that this statute does fire unless we’re talking about an act of the Legislature, which I suspect has to be enacted as law. This statute seems to envision lawsuits involving parties separate from the state who get into arguing the constitutionality of some point of law and giving the state a heads-up so they can intervene and say, “Hey, you folks have your argument and seek your damages, but we say our law is legit.”
I don’t think the Court’s decision did AG Jackley any favor.
Speaking of Jackley, yeah, Bear, why didn’t the Governor simply seek an AG opinion? Such an opinion is automatic; the first statute Mike cites (sub-section 6!) does compel the Attorney General to supply an opinion on a question of law submitted by the Governor.
Actually, I can’t imagine Daugaard didn’t pick up the phone or go have lunch with Marty and have a chat about how he’d feel about defending both laws in court. (Again, being Governor and having that kind of legal advice available would be so fun… although I can get pretty good legal opinions here in the comment section!)
The South Dakota Corn Growers are really starting to irritate me. I see all sorts of TV ads about how the SDCGA is really concerned about our water. Their actions against SB136 says otherwise. This will come back to bite them someday when farmers start getting sued for contaminating everyones drinking water.
Perhaps you should run for Governor, Mr. H, instead of the legislatures. Imagine the power you could wield like a mallet.
Well. it looks to me that we can construe from the Governor’s subsequent actions that he was persuaded by the arguments of those two brief-filing organizations.
Paul, check out the Governor’s veto message:
http://legis.sd.gov/Legislative_Session/Bill_Reports/Vetoed.aspx?Filename=veto136.htm
He at least acknowledges the goal of conservation is laudable. He just can’t stand the idea that other taxpayers would pay for farmers to practice more conservation.
The Governor also portrays the “highest and best use” principle as sacrosanct. Really? Do we evaluate and tax residential and commercial land at their highest and best use? Do we tax a coffee shack at a busy intersection the same as we would a multi-million-dollar strip mall or office complex, just because the owner could make a higher, better use of that land?
You know, Richard, the Court’s statement suggests those arguments from IJ and SD Corn were not filed. Those two groups asked to file, but the court appears to have rejected the Governor’s request without resolving whether those groups could file. But I would suspect both groups sent versions of their intended briefs to the Governor himself.
And I would bet they sent those intended briefs to the Gov BEFORE he asked the court for its opinion.
You need to disabuse the guv of your state and other red run states that taxes are bad. They are a necessary and important tool to be used to run government appropriately and seamlessly. Taxes are our friends. Maybe Daugaard needs a simple reminder that graft and corruption in Federal grant programs in his fiefdumb lead to loss of federal slush funds and bring the need for more taxes to his citizens. Federal grant monies are derived from taxes themselves,so he can’t be totally against taxes.