STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 23, 1975

Mr. David Volk
State Treasurer
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-178

Selection of participants in executive student intern program

Dear Mr. Volk:

You have stated that the 1973 Legislature created an administrative student intern program. SDCL 3-6B-3.1 of that act provides that:

Of the administrative interns who are registered members of a political party, no more than one-half shall be registered members of the same political party.

The question you have asked is as follows:

Is the requirement that students applying for internship positions identify their political affiliation and the fact that no more than half of those accepted may be members of one political party unconstitutional?

It is a well established principle of law that a legislative enactment is presumed to be valid unless it is a plain and palpable infringement of the constitutional restrictions imposed upon the Legislature. Clem v. City of Yankton, 83 S.D. 386, 160 N.W. 2d 125. Further, it is clearly a function of the judiciary to make the determination as to the constitutionality of a particular law.

The procedure for recruitment and selection of student interns pursuant to SDCL 3-6B does not discriminate per se against persons of a particular political persuasion. Neither does it discriminate against persons who are not registered as members of a political party as it does not exclude independents from the program. Rather, it is my opinion that SDCL 3-6B-3.1 attempts to achieve an equality of representation among students who meet the other eligibility requirements.

By way of analogy, a number of state boards and commissions are required by law to be bipartisan. For example, the nine-person State Ethics Commission created by the 1975 Legislature may not be composed of more than four members of one political party. (SDCL 12-25A.) Concededly, there are distinctions between employment as summer interns and appointment to a board or commission. However, in both cases the Legislature has expressed the interest of the state in the selection process and the persons who fill said positions.

Therefore, since it is not a function of this office to determine the constitutionality of statutes, and to so rule could have a far reaching effect on numerous boards, commissions and state employees, it is my opinion that SDCL 3-6B-3.1 should be construed as constitutional.

The answer to your question is NO.

Respectfully submitted,

William Janklow
Attorney General

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