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In re Request of Governor Dennis Daugaard for an Advisory Opinion

Supreme Court of South Dakota

March 24, 2016

IN RE: THE REQUEST OF GOVERNOR DENNIS DAUGAARD FOR AN ADVISORY OPINION IN THE MATTER OF THE INTERPRETATION OF SOUTH DAKOTA CONSTITUTION ARTICLE XI, § 2 IN RE: THE REQUEST OF GOVERNOR DENNIS DAUGAARD FOR AN ADVISORY OPINION IN THE MATTER OF THE INTERPRETATION OF SOUTH DAKOTA CONSTITUTION ARTICLE VIII, § 16

REQUEST RECEIVED MARCH 11, 2016

ORIGINAL PROCEEDING

ADVISORY OPINION

TO HIS EXCELLENCY, DENNIS DAUGAARD, THE GOVERNOR OF THE STATE OF SOUTH DAKOTA.

[¶1.] You requested two advisory opinions from this Court dealing with the constitutionality of SB 136 and SB 159.[1] Both acts were passed by the 2016 South Dakota Legislature. Your request indicates you must sign them, let them become law without your signature, or veto them within 15 days of March 11, 2016. S.D. Const. art. V, § 5. You asked:

#27786 (SB 136: cropland assessment)
1. Does SB 136, An Act to permit certain cropland along lakes, rivers, and streams to be assessed as noncropland, violate the provisions of Article XI, § 2 of the South Dakota Constitution?

Article XI, § 2 provides, in part, that "[t]axes shall be uniform on all property of the same class[.]"

#27787 (SB 159: tax credit)
2. Does SB 159, An Act to provide tax credit to insurance companies that contribute to an organization providing scholarships to certain students, violate the provisions of Article VIII, § 16 of the South Dakota Constitution?

Article VIII, § 16 prohibits the public support of sectarian schools, sectarian purposes, and sectarian instruction.

[¶2.] By letter dated March 17, 2016, this Court informed you that it concluded that it is not appropriate to answer these questions by advisory opinion. This formal opinion discusses the legal reasons the Court declined your requests for advisory opinions.

I

[¶3.] "The doctrine of separation of powers has been a fundamental bedrock to the successful operation of our state government since South Dakota became a state in 1889." Gray v. Gienapp, 2007 S.D. 12, ¶19, 727 N.W.2d 808, 812. Further "[i]t is a fundamental principle of our political system, recognized and respected by all thoughtful citizens, that, so far as possible, each department of government should act independently of the others." In re Chapter 6, Session Laws of 1890, 8 S.D. 274, 275-276, 66 N.W. 310 (1896). The Attorney General is the authorized legal advisor to the executive department. In re House Resolution No. 30, 10 S.D. 249, 251-252, 72 N.W. 892 (1897). As such, a gubernatorial request for an advisory opinion by the Supreme Court is limited to the "rarest instances." Id.

[¶4.] Article V, § 13 of the 1889 South Dakota Constitution enlarged the usual jurisdiction and duties of the judges of the South Dakota Supreme Court by adding a unique and important proceeding devoid of the usual indicia of judicial proceedings. In re Construction of Constitution, ...


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