November 29, 1994

Timothy J. Edman, Commissioner
Bureau of Administration
State Capitol
Pierre, South Dakota 57501

Dr. John A. Bonaiuto, Secretary
Department of Education and Cultural Affairs
Kneip Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 94-14

Handling of Edwin Blashfield Mural

Gentlemen:

You have requested an official opinion from this Office based on the following factual situation:

FACTS:

The Capitol Complex Restoration and Beautification Commission (the "Commission") has apparently been instructed by the state legislature pursuant to Session Laws (SL) 1994, ch. 19 to remove the Edwin Blashfield oil mural, entitled "The Spirit of the West," from public display in the State Capitol. However, the Commission has specific statutory responsibilities to protect and preserve the integrity of historic areas of the state capitol building.

In addition, SL 1994, ch. 19 requires the South Dakota Arts Council (the "Council") to commission or acquire artwork suitable to replace the oil panel. The Council was also instructed to endeavor to raise sufficient money by private gifts, grants and contributions to provide for all expenses, including removal of the oil panel, without public expenditure. However, the Council has specific statutory responsibilities to promote, stimulate, encourage, give recognition and assistance to the arts in every way possible and to accept, receive and administer gifts, bequests, grants and endowments from any and all sources whatsoever to further the purposes, objectives and provisions of the applicable statutes. The Council is not to provide control over the content or expression of any of the art forms.

Based on that factual scenario, you have asked the following questions:

QUESTION NO. 1

Does the language of SL 1994, ch. 19 allow for the option of leaving the painting in the Governor's reception room and covering the painting with draperies or other materials?

QUESTION NO. 2

Does SL 1994, ch. 19 conflict with the Commission's statutory responsibilities spelled out in SDCL 5-15-44, 5-15-45 or any other section in SDCL ch. 5-15? If a conflict does exist, which takes priority?

QUESTION NO. 3

Does SL 1994, ch. 19 conflict with the Council's statutory responsibilities spelled out in 1-22-5, 1-22-6 or any other section in SDCL ch. 1-22? If a conflict does exist, which takes priority?

QUESTION NO. 4

If no conflict exists, the Council would like an interpretation of their duties relative to SL 1994, ch. 19.

At the outset, I must dissent from your statement of the facts. In my view, SL 1994 ch. 19 contains the following requirements:

First, the Legislature has made a finding that the mural is "inappropriate for display in the state capitol."

Second, the Commission "shall consider alternatives for taking the oil panel off display in the Governor's reception room."

Third, any alternative considered by the Commission "may not include the destruction or sale of the painting."

Fourth, the Commission must make findings and recommendations and "shall report its findings and recommendations to the executive board of the Legislative Research Council not later than October 1, 1994."

Fifth, the Commission must consult with the Executive Board.

Sixth, the Commission shall "make a final disposition" in accordance with "the provisions of this section."

Seventh, Section 3 directs the Council to raise money for implementation of decisions made in accordance with Section 2 so that no public funds will be utilized. Section 3 further directs the Council, with the approval of the Commission, to commission or purchase suitable artwork to replace the oil panel if such becomes necessary.

In summary, the Commission's duty is to make findings and recommendations to the Executive Board, excluding any recommendations which involve destruction or sale of the painting. Thereafter, you must consult with the Executive Board before implementing any disposition. Thus, I question whether the Commission has any decision-making authority in this matter. The statute contemplates a decision made solely by the Executive Board--according to Commission findings and recommendations--and then implemented by the Commission. With that in mind, my opinion follows.

IN RE QUESTION 1:

The overall issue at hand is one of statutory interpretation. Both the South Dakota Supreme Court and the South Dakota Legislature have provided guidance in interpreting the legislative intent in statutory language. First, words and phrases used in statutes, unless otherwise assigned a specific definition, are to be given their "plain, ordinary and popular meaning." American Rim and Brake Inc. v. Zoellner, 382 N.W.2d 421, 424 (S.D. 1986); SDCL 2-14-1. Further, an individual interpreting a statute or other enactment should not pursue any sort of convoluted result. "We assume that statutes mean what they say and that the legislators have said what they meant." Crescent Electric Supply Company v. Nerison, 232 N.W.2d 76, 80 (S.D. 1975). Obviously, those two principles are a matter of common sense and, further, are of considerable utility in answering your question. I have procured additional facts of direct importance to your first question. First, according to M. Randall Ash, an examiner for the Rocky Mountain Conservation Center of the University of Denver, removal of the Blashfield Mural from the wall of the Governor's Reception Room "may well cause unnecessary damage, even with the greatest of care." (A copy of the report is available to you through the Bureau of Administration.) Mr. Ash described the potential removal project as "tedious, time intensive, and possibly injurious to the painting." Id. He concluded, "As an option I DO NOT concur with the idea of removal."

Further, I am in receipt of a more recent report from a David Marquis, paintings conservator for the Upper Midwest Conservation Association. After describing the difficulty inherent in attempting to remove the Blashfield mural from the wall (including certain possible health risks to public employees in the area), he concludes, "Murals that are well attached to the wall can suffer some mechanical damage during removal. Although every precaution would be taken to minimize or avoid damage, removing a mural from a wall is a serious intervention and should be considered only as a last resort." (A copy of the second report also is available through the Bureau of Administration.) Both expert opinions are of importance here.

Section 2 of SL 1994, ch. 19 is, at least on the surface, directly on point on your first question. It reads, in part, as follows:

The South Dakota Capitol Complex Restoration and Beautification Commission shall consider alternatives for taking the oil panel off display in the Governor's Reception Room. However, the alternatives may not include the destruction or sale of the painting. (Emphasis added.)

I am in no position to make a factual determination on behalf of the Executive Board. If the mural cannot be taken from the wall of the reception area without destroying it, then the answer to your first question is, "yes." In fact, under such circumstances, SL 1994, ch. 19, does not merely "allow" the option of leaving the mural in place; it demands it. Thus, if it is determined that risk of harm is significant, the only option for taking the mural "off display" while simultaneously protecting it would be to cover it with draperies or some other material or object.

IN RE QUESTION 2:

As you note in this question, the Commission is governed primarily by two statutes. The first, SDCL 5-15-44, reads as follows:

The South Dakota capitol complex restoration and beautification commission created by 5-15-1 shall protect and preserve the integrity of the historic areas of the state capitol building and shall from time to time propose restoration projects to restore historic areas to their original appearance insofar as this objective is compatible with modern use.

Also as you noted, the Commission is guided by the language of SDCL 5-15-45, which statute's opening line reads, "No person may alter, change, remodel, partition, cover, or conceal an historic area which is a part of the state capitol building." Clearly, the general intent and impact of the Commission's primary two statutes is clear.

I must address one additional statute in the Commission's chapter. SDCL 5-15-47 reads as follows:

For the purposes of 5-15-44 to 5-15-48, inclusive, an "historic area" includes the chambers of the Supreme Court, the legislative chambers of the state house of representatives and the state senate, the reception area traditionally used by the Governor, and any mural, painting, statue, or decoration created for or attached to the state capitol building. (Emphasis added.)

Obviously, when one considers those three statutes together, one only may conclude that their collective impact does run contrary to that found in SL 1994, ch. 19.

When statutes appear to conflict, an effort must be made to maintain each enactment's integrity, if possible. "If, by any reasonable construction, both acts can be reconciled, they should be." Sales Tax Refund, supra. Here, however, reconciliation appears to be impossible. In such case, an additional rule of statutory construction comes into play. "Terms of a statute relating to a particular subject will prevail over general terms of another statute." Bienert v. Yankton School District, 507 N.W.2d 88, 91 (S.D. 1993); see also U.S. West Communications, Inc. v. Public Utilities Commission, 505 N.W.2d 115, 123 (S.D. 1993). In the instant matter, the provisions of SDCL ch. 5-15 address the Commission's duties in general. On the other hand, SL 1994, ch. 19 is aimed specifically at the Blashfield Mural. Consequently, that more specific statement by the Legislature regarding the mural must take precedence.

One additional tenant of statutory interpretation is worth noting. When two enactments are in obvious conflict with one another, the more recent applies. Matter of the Estate of Bode, 273 N.W.2d 180, 183 (S.D. 1979). Just as it is clear that the Legislature's 1994 enactment directed at the Blashfield Mural is more specific, it obviously is also the more recent of the conflicting legislative statements. Consequently, applicable law provides additional authority that S.L. 1994, ch. 19 must prevail.

On the basis of Bienert and Bode, the answer is that S.L. 1994, ch. 19 takes priority over the provisions of SDCL ch. 5-15.

IN RE QUESTION 3:

The citations in your question to the Council's governing statutes in SDCL ch. 1-22 are on point. The first, SDCL 1-22-5, reads as follows:

The powers and duties of the council are: (1) To promote, stimulate, encourage, give recognition and assistance to the arts in every way possible; (2) To conduct research and provide a plan for the development of the arts in the state of South Dakota; (3) To coordinate activities of the federal, state and local governments and the state's institutions in relation to the arts; (4) To approve projects for federal and state aid for the arts; (5) To comply with the requirements of federal law relating to federal aid; and, (6) To accept, receive and administer gifts, bequests, grants and endowments from any and all sources whatsoever to further the purposes, objectives and provisions of this chapter.

Further, the Council's activities are directed by SDCL 1-22-6, which reads: "This chapter may not be construed to provide control by the council over the content or expression of any of the art forms." The overall legislative intent toward the Council is apparent.

Here again, a reading of the Council's primary laws leads one to the conclusion that those statutory provisions arguably conflict with the specific Council duties outlined in S.L. 1994, ch. 19. Once again, since the conflict between legislative enactments cannot be reconciled (Sales Tax Refund, supra) the more specific and/or more recent enactment must prevail. Bienert, supra; Bode, supra. Thus, the answer to your third question is identical to that for your second question; the language of S.L. 1994, ch. 19 is controlling over the language of SDCL ch. 1-22.

IN RE QUESTION 4:

Your fourth question is answered in the discussion above.

MB:WAH:mas