STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 12, 1975

Representative Joe Barnett
Aberdeen, South Dakota 57401

OFFICIAL OPINION NO. 75-194

Can the Legislature amend or repeal a joint resolution passed at one session when there is an intervening session before it can be placed on the general election ballot?

Dear Representative Barnett:

You have requested an official opinion from this office based upon the following factual situation:

Several joint resolutions were passed during the 1975 legislative session. Unless the Legislature takes some action on these proposals they will be placed upon the 1976 general election ballot as proposed constitutional amendments. There is some interest in making certain amendments to these joint resolutions. The question has been raised whether these joint resolutions passed during the 1975 legislative session could be amended during the 1976 legislative session.

 Based on the above factual, situation you ask:

1. Can joint resolutions passed by the 1975 legislative session for the purposes of proposing constitutional amendments be amended by the Legislature during the 1976 legislative session?

2. Can joint resolutions passed during the last legislative session which propose constitutional amendments, be "repealed and reenacted" during the 1976 legislative session?

3. Can joint resolutions passed during the last legislative session which proposed amendments to the State Constitution be repealed or withdrawn during the 1976 legislative session?

The questions you ask will be answered in regard only to the fact situation you present, that is, in regard to joint resolutions passed for the purpose of referring state constitutional amendments to the voters pursuant to the provisions of article XXIII of the Constitution of South Dakota.

Sections 1 and 3 of article XXIII of the South Dakota Constitution are the crucial constitutional provisions involved in answering your questions. These constitutional provisions provide:

Section 1. Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter and other articles as necessary to accomplish the objectives of the amendment.

Section 3. Any constitutional amendment or revision must be submitted to the voters and shall become a part of the Constitution only when approved by a majority of the votes cast thereon. The Legislature may provide for the withdrawal by its sponsors of an initiated amendment at any time prior to its submission to the voters.

Since the present provisions of article XXIII were approved quite recently (1972), there has not been much opportunity for the courts to interpret and construe these provisions so as to aid in answering the questions you raise. Under the old article XXIII, however, there had been some court analysis. In the case of Lovett v. Ferguson, 71 N.W. 765, 766 (1897) the following language of the court is particularly informative in regard to the present question:

It will be observed from the reading of section I (article XXIII) that no particular form in which the two houses shall proceed in proposing, agreeing to, or submitting an amendment to the people is prescribed. The method of proceeding is left largely to the discretion of the two houses, subject to the condition that all requirements of the Constitution shall be substantially complied with.

A similar provision is found in the case of State v. Herried, 72 N. W. 93, 95 (1897) in regard to article XX III, section I.

In the Ferguson case cited above, our Supreme Court seems to be saying that the Legislature does have flexibility in the proceedings relating to proposed constitutional amendments, provided that the constitutional provisions on point are substantially complied with. Although the case involved the old article XXIII, it is my judgment that the rationale of the Court in this regard would apply as well to the provisions of the new article XXIII. This South Dakota case precedent stands in my view for the proposition that reasonable procedural flexibility, not undue strict construction, should govern the legislative proceedings and powers under article XXIII. It will be recalled also, that article III section 9 of our Constitution provides that each house of the Legislature shall "determine the rules of its proceedings."

Decisions of several other state courts seem to support the position that the Legislature can reconsider a proposed constitutional amendment before it has been submitted to the voters. Doody v. State, 171 So. 504 (1936), Crawford v. Gilchrist, 59 So. 963 (1912), In re Opinion of the Justices, 39 So. 2d 665 (1949), In re Opinion of the Justices, 197 N.E. 95 (1935), Clements v. Powell, 116 S.E. 624 (1923). These decisions seem to be based on the grounds that: 1) the Legislature has the inherent right as a deliberative body to reconsider the proposed amendment if they do so before the people vote on it; 2) the Legislature has the power to make rules governing its proceedings; and 3) since the amendments to the constitution do not have the status of law until they are ratified by the electorate, the Legislature can change its mind.

The argument to deny the Legislature the power to reconsider is fundamentally based on the provisions of article XXIII, sections 1 and 3 which provide that "amendments to this Constitution may be proposed by initiative or by a majority of all members of each house of the Legislature" and "any constitutional amendment or revision must be submitted to the voters."

Arguably, a constitutional amendment is within the provisions of article XXIII, section 3 above, requiring submission to the voters, once the Legislature approves by a majority vote. The legislative act is then complete, requiring no further act, until the people vote on it. Article XXIII, section 3 according to this rationale would require that any constitutional amendment or revision must be submitted to the voters once the Legislature has approved it. There is then, according to this argument, no room in the above constitutional provisions for the Legislature to "change its mind" and later withdraw or amend the proposed amendment from the ballot.

The above argument of strict construction is appealing in some respects. However, in view of the Ferguson and Herried cases and the seeming majority view in other states, with similar constitutional provisions, which cases allow the Legislature to "change its mind" in situations such as this, I conclude that the South Dakota Legislature does have the authority to amend, repeal and reenact, or completely withdraw constitutional amendments "proposed" by joint resolution of the same Legislature in the previous legislative session and which have not yet been voted on by the people.

Inasmuch as one of the main legal arguments supporting the Legislature's power to "change its mind" in situations such as you present has been the power of the Legislature to make rules governing its proceedings, In re Opinion of the Justices, 197 N.E. 95 (1935), Opinion of the Justices, 125 N.E. 2d 741, 746 (1956), I suggest that the Legislature make appropriate rules pursuant to the authority granted in article III, section 19 of the State Constitution to provide for making changes in joint resolutions proposing state constitutional amendments.

Respectfully submitted,

William Janklow
Attorney General

WJJ:DOC:rw