February 24, 1975
Senator Marilynn D. Kelm
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-35
House Bill 556
Dear Senator Kelm:
You have requested an opinion from this office as to the legality of House Bill 556. That bill provides:
The interim rules review committee shall have the power to prevent proposed rules and regulations promulgated by any agency from going into effect until thirty days after the Legislature convenes. An appropriate resolution of such action shall be filed with the secretary of state and be effective from the date of such filing.
I am aware of the fact that several states, including the neighboring states of Iowa, Kansas, Michigan, Nebraska, and Wisconsin have adopted statutes which create a legislative committee to review administrative rules with a view towards legislative reversal or committee suspension. In the limited time available to research this matter, I have discovered no court opinion on these statutes which would serve as precedent for this opinion.
In my opinion, there are several questions involved in the general question you raise. These questions are: (1) Does House Bill 556 constitute a violation of the concept of separation of powers; (2) Is the proposed delegation of legislative authority lawful; and (3) Is the proposed bill so vague and indefinite as to be unconstitutional?
It is my opinion that the Legislature in House Bill 556 is not delegating its power to make laws. It is clear that if such a delegation were involved it would be unlawful. Boe v. Foss, 76 S.D. 295, 77 N.W. 2d (1956), Schryven v. Schirmer, 84 S.D. 352, 171 N.W. 2d 634 (1969). House Bill 556 only allows the suspension of a rule until the next legislative session; it does not give to the interim rules committee any permanent veto power. Although there is no case law presently on point, it is my view that if the Legislature can delegate rule-making authority to administrative agencies, they can also delegate to a legislative committee a limited suspension power over proposed substantive administrative rules that go beyond a specific standard set by the Legislature. If this suspension power is not limited, however, it would require a different conclusion.
It seems to be essential that any suspension power (such as that proposed in House Bill 556) be adequately defined and limited in scope. If there is no limitation placed on this suspension and review power, one is then giving to the interim rules committee a power to potentially thwart the duties and responsibilities of the executive branch to faithfully execute the laws. (S.D. Const. art. IV, §3.) Once existing statutes are in effect, the executive department has the constitutional obligation to faithfully execute them. If a legislative committee is given unbridled discretion in limiting the executive branch in implementing existing laws through passing new rules, it is my view that the constitutional separation of powers is being recklessly endangered. Any final determination of specific case in this matter would of course rest with the South Dakota Supreme Court. It is my opinion however that House Bill 556 in its present form does not sufficiently define the scope in which the "suspension power" may be exercised.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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