June 17, 1986
The Honorable Alice Kundert
Secretary of State
State Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 86-22
Legislative repeal of referred measures
Dear Secretary Kundert:
You have requested my official opinion regarding the effect of legislative repeal by the 1986 Legislature of two acts of the 1985 Legislature, subsequently petitioned for referendum. You present the following:
FACTS:
The 1985 Legislature passed 1985 House Bill 1366. Subsequently, a referendum petition bearing more than the required 13,929 signatures was filed in the office of the Secretary of State preventing 1985 HB 1366 from going into effect, and submitting it to the voters at the general election in November of 1986.
The 1986 Legislature passed 1986 HB 1390 which repealed Chapter 129 of the 1985 Session Laws (1985 HB 1366).
Also, the 1985 Legislature passed 1985 Senate Bill 131. Subsequently a referendum petition bearing more than the required 13,929 signatures was filed in the office of the Secretary of State preventing 1985 SB 131 from going into effect and submitting it to the voters at the general election in 1986.
The 1986 Legislature passed 1986 SB 275 which repealed Chapter 368 of the 1985 Session Laws (1985 SB 131).
Based upon the foregoing facts, you ask the following question:
Whether the referred laws, 1985 HB 1366 and 1985 SB 131, should be placed on the ballot for the 1986 general election.
IN RE QUESTION:
Article III, § 1 of the South Dakota Constitution provides:
The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives, except that the people expressly reserve to themselves the right to propose measures, which measures the Legislature shall enact and submit to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions: provided, that not more than five per centum of the qualified electors of the state shall be required to invoke either the initiative or the referendum.
This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: 'Be it enacted by the people of South Dakota.' The Legislature shall make suitable provisions for carrying into effect the provisions of this section.
SDCL 2-1-3 provides:
Any law which the Legislature may have enacted, except one which may be necessary for the immediate preservation of public peace, health, or safety, or support of the state government and its existing public institutions, shall, upon the filing of a petition as hereinafter provided, be submitted to a vote of the electors of the state at the next general election. Such petition shall be signed by not less than five percent of the qualified electors of the state. The form of the petition shall be prescribed by the state board of elections.
Apparently the precise factual situation giving rise to your question has not previously arisen in this State. Following the mid-1960's amendment to the South Dakota Constitution providing for annual legislative sessions but retaining bi-annual elections, the stage was set for the situation now presented. In 1967, then Attorney General Frank Farrar opined on this subject when a series of hypothetical questions was submitted by a legislator. See 1967-68 A.G.R. 188-191. I recommend that Opinion to you for a full explication of the issues raised.
Based upon my research, it appears that the seminal case in this area remains State ex rel. Drain v. Becker, 240 S.W. 229 (Mo. 1922). That case clearly holds that under the Missouri Constitution the legislature is without authority to repeal and amend or otherwise legislate in the subject area of any legislative act referred to a vote of the people. There is, however, a substantial difference between Missouri's constitutional provision and South Dakota's. Missouri's constitutional provision regarding referendum contains the following sentence, 'Any measure referred to the people shall take effect and become that law when it is approved by a majority of the votes cast thereon, and not otherwise.' State v. Becker, 240 S.W. at 235. Obviously, a constitutional provision that provides that a measure referred to the people 'shall take effect and become law when it is approved' would give precedence to a referral vote over an attempted legislative repeal. No such provision appears in the South Dakota Constitution.
In addition to the distinction noted above I am of the opinion that at least two reasons militate against placing the referred measures on the 1986 general election ballot.
First, when the people undertake to exercise the power of referral as opposed to the power of initiative, they are in effect exercising a veto power over the action of the legislature. The exercise of a veto can only operate in the negative, that is prohibit rather than initiate action. Accordingly, when faced with the situation where the Legislature has already undertaken to exercise the only authority that can be exercised in a referendum there appears to be no effective action available to the people through the popular ballot. Our Court has held that when the people of South Dakota are acting through Art. III, § 1 of the South Dakota Constitution, they are part and parcel of the 'legislature.' State ex rel. Schrader v. Polley, 26 S.D. 5, 127 N.W. 848 (1910). In this situation, following the referral by the voters, the Legislature has by its repeal of the prior acts removed the necessity for the people to act.
Second, Art. III, § 1 of the Constitution, set out above, contains the following sentence. 'This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure.' That sentence is plain and admits of no exceptions or restrictions. It provides quite clearly that the initiative and referendum provisions do not deprive the Legislature or any legislator of the right to propose any measure. Obviously, 'any measure' must include a measure designed to repeal an act that is the subject of a referendum. Of course, it could be argued that the repeal is not effective since the acts in question have not as yet gone into effect because of the referendum. There have, however, been numerous instances of the Legislature giving a delayed effective date to a piece of legislation and subsequently amending or repealing that legislation before it has gone into effect. I am unable to distinguish that situation from the present. In any event, if the acts in question were voted upon by the people and sustained, we would still be faced with the subsequent repealers passed by the 1986 Legislature. I am unable to find any basis in South Dakota's Constitution, or Supreme Court precedent for the proposition that a failed referendum vote could in any way effect a subsequent legislative action. That being so, the vote would be a useless act which neither law nor equity will compel.
Finally, as noted by Attorney General Farrar in the opinion cited above, both of the 1986 acts repealing the referred 1985 acts are also subject to referendum. I agree with Attorney General Farrar that if such a referendum were to be filed, both the 1985 and 1986 acts would appear on the 1986 ballot. While the time for filing referendums has not as yet passed, I am unaware of any movement afoot to gather the necessary signatures. Nevertheless, if such a petition, or petitions should be filed with your Office, I would advise that both Acts be placed on the 1986 ballot.
My answer to your question is that due to the 1986 repeals of 1985 HB 1366 and 1985 SB 131 the referendum of those measures should not appear on the 1986 general election ballot.
It is with extreme reluctance that I reach this conclusion. When the people take the steps necessary to place a measure or the repeal of a measure on the ballot, elected officials should not frustrate the will of the people so expressed. In this situation, I believe that you are justified in taking this action.
In the future, I would recommend that the Legislature consider drafting legislation designed to affect measures already referred awaiting a popular vote in such a way that the subsequent act be made contingent upon the outcome of the referendum. This strategy would avoid the outcome here and would present the people with a clear choice when they consider the matter at the polls.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
