STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

March 8, 1973

Mr. Jack T. Klauck
State's Attorney, Pennington County
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 73-06

Revised Judicial Article does not of itself repeal municipal judicial elections.

Dear Mr. Klauck:

You have asked for an official opinion on the following factual situation:

The term of office of municipal judge, Rapid City, expires on May 7, 1973 (SDCL 16-11-7), with an election to take place on April 10, 1973 (SDCL 9-13-1).

In connection with the factual situation, you have asked:

Should the election be held in view of the recent passage of the amendment to the judicial article?

The answer to your question depends upon whether the statutes relating to the election of municipal judges have been revoked by the passage of the new judicial amendment to our State Constitution. In my opinion, they have not been, and, therefore, the answer to your question is, YES. It is generally accepted rule of constitutional interpretation that repeals of statutes by implication, are not favored and, in fact, there is a presumption against such repeal. This rule is succinctly stated in In re Advisory Opinion to the Governor (Fla. 1961) 132 S. 2d 163:

In considering the effect of constitutional amendments upon existing statutes, the rule is that the statute will continue in effect unless it is completely inconsistent with the plain terms of the Constitution. However, when a constitutional provision is not self-executing, as is the case here, all existing statutes which are consistent with the amended Constitution will remain in effect until repealed by the Legislature. Implied repeals of statutes by later constitutional provisions is not favored and the courts require that in order to produce a repeal by implication the repugnancy between the statute and the Constitution must be obvious or necessary. Pursuant to this rule, if by any fair course of reasoning the statute can be harmonized or reconciled with the new constitutional provision, then it is the duty of the courts to do so.

There is nothing in the judicial admendment which overtly or covertly repeals any exisiting statutes or rules of the Supreme Court. Nor is it self executing. Rather, the article, by the wording in Section 13, contemplates an orderly metamorphosis of' the existing judicial system by passage of new laws and Supreme Court rules:

The Legislature by law and the Supreme Court by rule shall provide for the orderly transition of the judicial system in conformity with this article.

In accordance with this section, the Supreme Court on December 1, 1972 enacted a rule providing" the present judicial system shall remain in effect until changed by rule of this Court or act of the Legislature for periods." The 48th Session of the Legislature also passed emergency legislation known as House Bill No. 595, which provided that "the present judicial system is hereby continued to not later than January 7, 1975 with such jurisdiction and funding by the governmental units as is presently provided by existing statutes, rules of court and decisions of the Supreme Court."

After examining such rules of court and legislation, it cannot be held that all of the laws relating to the present judicial system are continued in effect except those which relate to the election of municipal judges. Accordingly, it is my opinion that until otherwise changed by statute or Supreme Court rule, the present statutes calling for the election of municipal judges this April are valid.

Respectfully submitted,

Kermit A. Sande
Attorney General