#26089 

2011 S.D. 44

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

IN RE: THE REQUEST OF GOVERNOR DENNIS DAUGAARD 

FOR AN ADVISORY OPINION IN THE MATTER OF THE 

INTERPRETATION OF SOUTH 

DAKOTA CONSTITUTION 

ARTICLE V, §§ 2 and 6 

* * * * 

ORIGINAL PROCEEDING 

* * * * 

REQUEST RECEIVED JULY 13, 2011 

 OPINION FILED 07/26/11 
#26089 

ADVISORY OPINION 

TO HIS EXCELLENCY, DENNIS DAUGAARD, THE GOVERNOR OF THE STATE 

OF SOUTH DAKOTA. 

[¶1.] Pursuant to South Dakota Constitution article V, § 5 you have 

requested an advisory opinion from the Supreme Court on two important questions 

of law dealing with the eligibility requirements for individuals seeking appointment 

to the South Dakota Supreme Court. You ask: 

1. What actions or intent are sufficient to satisfy the 

requirement of Article V, §§ 2 and 6 that justices of the 

Supreme Court be voting residents within the district from 

which they are appointed? 

2. At what point in time, relative to the appointment or the 

assumption of the position on the Supreme Court, must these 

actions be undertaken or intentions be formed? 

[¶2.] In 2009 Governor M. Michael Rounds posed questions relating to 

Supreme Court eligibility to this Court in his request for an advisory opinion. In re 

Request of Governor M. Michael Rounds for an Advisory Opinion in the Matter of 

the Interpretation of South Dakota Constitution Article V, Section 5, #25467, 

December 3, 2009 (unpublished). The Court declined to answer the request because 

there was no vacancy on the Supreme Court that the Governor was required to fill. 

We noted: 

At this time there is no vacancy on the Supreme Court that you 

are required to fill. Accordingly, there is no contemplated 

exercise of your executive power as required by Article V, § 5. In 

addition, this matter does not present a solemn occasion because 

there is little likelihood of the circumstances surrounding your 

questions arising during the time remaining in your term. Any 

opinion offered by this Court at this time would be based merely 

upon speculation. Such an opinion may not be conclusive on the 

rights of future parties and thus may not be binding on anyone. 

Although we realize your question is primarily one of law, the 
#26089 

-2- 

factual circumstances presented in the course of an actual 

vacancy, application, or proposed appointment may better inform 

our decision. An opinion at this time could unwittingly hamper 

your successor in a manner unforeseeable at this juncture. We 

decline to do this. 

Id. 

[¶3.] Currently, however, there is a vacancy as of June 8, 2011 on the 

Supreme Court created by the retirement of Justice Judith K. Meierhenry. SDCL 3-

4-1(2) (“Every office shall become vacant on the happening of . . . resignation[.]”). 

A vacancy, as defined by law, in the office of a Supreme Court 

justice or circuit court judge, shall be filled by appointment of 

the Governor from one of two or more persons nominated by the 

judicial qualifications commission. 

S.D. Const. art. V, § 7; SDCL 3-4-3(1). In accordance with Article V, § 7, the 

Judicial Qualifications Commission has provided you with a list of nominees for the 

position vacated by Justice Meierhenry’s retirement. Justice Meierhenry served 

from the Fourth Supreme Court District1 and the person you appoint will as well. 

Several of the people that the Judicial Qualifications Commission nominated for 

that position, however, are not residents of the Fourth Supreme Court District as of 

the date of your letter. The crux of your request is the timing of when a nominee for 

 

1. SDCL 16-1-1 provides, in part: 

The state is divided into five Supreme Court districts from each of which a 

justice shall be selected as follows: 

. . . 

Fourth District. The counties of Union, Clay, Yankton, Hutchinson, 

Hanson, Davison, Bon Homme, Douglas, Aurora, Brule, Charles Mix, 

Gregory, Tripp, Lyman, McCook, Turner and that part of Lincoln 

 (continued . . .) 
#26089 

-3- 

appointment to the vacant Supreme Court position serving the Fourth District must 

establish voting residency in that district. 

[¶4.] Pursuant to Article V, § 5, “The Governor has authority to 

require opinions of the Supreme Court upon important questions of law 

involved in the exercise of his executive power and upon solemn occasions.” 

This provision is disjunctive. In re Opinion of Supreme Court Relative to the 

Constitutionality of Chapter 239, Session Laws of 1977, 257 N.W.2d 442 (S.D. 

1977). It presents two situations in which an opinion can be given. Id. 

[¶5.] In this case, you are required to exercise your executive power and 

appoint a nominee to the Supreme Court vacancy. S.D. Const. art. V, § 7. The 

action that you take will be affected by our answer to the questions you pose. To 

His Excellency Wollman, 268 N.W.2d 820, 822 (S.D. 1978). “The power which the 

people of this state have entrusted to a [Supreme Court justice] affects the people’s 

lives, welfare and property to no small extent.” In re Fuller, 2011 S.D. 22, ¶ 38, 798 

N.W.2d 408, 419 (quoting Cummings v. Mickelson, 495 N.W.2d 493, 496 (S.D. 1993) 

(plurality)). Because you raise important questions of law involved in the exercise 

of your executive power, we will answer those questions. 

ANALYSIS 

[¶6.] “The language used in a constitution is of primary importance in 

determining when the qualification to office must exist.” Cummings, 495 N.W.2d at 

498. The words used in a constitutional provision “cannot be analyzed in isolation 

________________________ 

(continued . . .) 

County that is not included in the second Supreme Court district shall 

 (continued . . .) 
#26089 

-4- 

to the exclusion of the rest of the provision.” Id. at 500. Additionally, in construing 

a constitutional provision, we “must give regard to the whole instrument, must seek 

to harmonize the various provisions, and must, if possible, give effect to all the 

provisions.” S.D. Auto. Club v. Volk, 305 N.W.2d 693, 696 (S.D. 1981). 

South Dakota Constitution Article V, § 2 

[¶7.] Your inquiry suggests that Article V, §§ 2 and 6 each require justices of 

the Supreme Court to be voting residents of the district from which they are 

appointed. Article V, § 2, however, makes no mention of voting resident or voting 

residence. It provides: 

The Supreme Court is the highest court of the state. It consists 

of a chief justice and four associate justices. Upon request by 

the Supreme Court the Legislature may increase the number of 

justices to seven. All justices shall be selected from compact 

districts established by the Legislature, and each district shall 

have one justice. 

[¶8.] The language key to your inquiry is that “[a]ll justices shall be selected 

from compact districts established by the Legislature, and each district shall have 

one justice.” Id. “Initially, it should be noted that words such as ‘from,’ when used 

with respect to measurement of time, have no fixed or specific meaning. ‘Standing 

alone they are ambiguous and equivocal.’” Cummings, 495 N.W.2d at 500 (citing 

Fetters v. City of Des Moines, 149 N.W.2d 815, 818 (Iowa 1967)). However, the 

historical background of this provision provides guidance in determining its 

meaning and intent. City of Sioux Falls v. Sioux Falls Firefighters, Local 814, 89 

S.D. 455, 234 N.W.2d 35, 37 (1975). 

________________________ 

(continued . . .) 

constitute the fourth Supreme Court district.
#26089 

-5- 

[¶9.] “Usually amendments [to the Constitution] are adopted for the express 

purpose of making a change in the existing system.” Volk, 305 N.W.2d at 697. The 

1972 revision of Article V that was approved by the electorate “reorganized the 

article, established a unified judicial system and made numerous changes 

throughout.” S.D. Const. art. V, Historical Note. Article V, § 2, combined the 

former provisions of Article V, §§ 5, 6, and 11 of the 1889 South Dakota 

Constitution. While changes were made, see S.D. Const. art. V, § 2 Historical Note, 

significant to our analysis is that the 1972 amendment retained the 1889 

requirement that justices be chosen from “districts.”2

[¶10.] To determine the significance of the selection of justices from districts 

we resort to the view of the drafting body of that provision. Cummings, 495 N.W.2d 

at 499. The minutes of the Constitutional Revision Commission reveal that its 

members debated whether there was a need for the geographical distribution of 

justices or whether justices should be selected at large.3 It was the Commission’s 

consensus that justices should be geographically distributed. The electorate in 1972 

concurred in this view. 

 

2. Article V, § 5 of the 1889 Constitution provided: “The supreme court shall 

consist of three judges, to be chosen from districts by qualified electors of the 

state at large, as hereinafter provided.” Article V, § 5 now requires that 

justices be “selected from compact districts.” 

3. The early minutes of the Commission meetings indicate strong initial 

disagreement over selection and election of Justices on a state-wide basis 

versus selection and election by districts. Those who argued for selection and 

election on a state-wide basis indicated their intent to file a dissent to the 

district concept. Yet through future discussions and constitutional drafts, the 

report of the Commission that recommended §§ 2 and 6 in their current form 

 (continued . . .) 
#26089 

-6- 

South Dakota Constitution Article V, § 6 

[¶11.] Article V, § 6 provides: 

Justices of the Supreme Court, judges of the circuit courts and 

persons presiding over courts of limited jurisdiction must be 

citizens of the United States, residents of the state of South 

Dakota and voting residents within the district, circuit or 

jurisdiction from which they are elected or appointed. No 

Supreme Court justice shall be deemed to have lost his voting 

residence in a district by reason of his removal to the seat of 

government in the discharge of his official duties. Justices of the 

Supreme Court and judges of circuit courts must be licensed to 

practice law in the state of South Dakota. 

It is this provision, and not Article V, § 2, that requires Supreme Court justices to 

be “voting residents within the district . . . from which they are elected or 

appointed.” 

[¶12.] We thoroughly analyzed the historical background, legislative history 

and language of Article V, § 6 in Cummings, 495 N.W.2d at 498-502. The plurality 

of the Court concluded: “We hold that a person appointed to the office of circuit 

court judge must establish residency in that circuit prior to assuming said office.” 

Id. at 502. Based on the plurality opinion’s analysis of § 6, we adhere to that 

holding in responding to today’s inquiry. The text of § 2 establishes the same 

requirement applies to persons selected by the Governor to become Supreme Court 

justices. They must establish voting residency prior to taking the oath of office 

which vests them with the office of justice.4

________________________ 

(continued . . .) 

indicates compromises were reached. The Commission’s report on these 

sections was unanimous. 

4. The criteria for determining voting residence are found in SDCL 12-1-4: 

 (continued . . .) 
#26089 

-7- 

The Juxtaposition of 

South Dakota Constitution Article V, §§ 2 and 6 

[¶13.] At first blush it appears that Article V, § 2’s directive that “[a]ll 

justices shall be selected from compact districts . . . and each district shall have one 

justice” is at odds with Article V, § 6’s requirement that “justices . . . must be . . . 

voting residents within the district . . . from which they are elected or appointed.” 

________________________ 

(continued . . .) 

For the purposes of this title, the term, residence, means the 

place in which a person has fixed his or her habitation and to 

which the person, whenever absent, intends to return. 

A person who has left home and gone into another state or 

territory or county of this state for a temporary purpose only has 

not changed his or her residence. 

A person is considered to have gained a residence in any county 

or municipality of this state in which the person actually lives, if 

the person has no present intention of leaving. 

If a person moves to another state, or to any of the other 

territories, with the intention of making it his or her permanent 

home, the person thereby loses residence in this state. 

In addition, South Dakota’s voter registration application requires the voter 

to declare, under penalty of perjury: 

• I am a citizen of the United States; 

• I actually live at and have no present intention of leaving the 

above address; 

• I will be 18 on or before the next election; 

• I have not been judged mentally incompetent; 

• I am not currently serving a sentence for a felony conviction 

which included imprisonment, served or suspended, in an adult 

penitentiary system; 

• I authorize cancellation of my previous registration as written 

below. 

http://www.sdsos.gov/electionsvoterregistration/votregformlongbweffec

tive20080908 (last visited July 15, 2011). 
#26089 

-8- 

The members of the Constitutional Revision Commission, however, were acutely 

aware of the inconsistencies caused throughout the years by heavily amending the 

1889 Constitution. See State v. Wilson, 2000 S.D. 133, ¶ 8, 618 N.W.2d 513, 516. 

In drafting the 1972 Constitution they sought to avoid inconsistences and conflicts 

between provisions. Id. It is this Court’s responsibility to give a reasonable 

construction to each provision, give effect to each provision, and construe them 

together to make them harmonious and workable. See Volk, 305 N.W.2d at 696. 

[¶14.] In Cummings, 495 N.W.2d at 499, we noted that the drafters of Article 

V, § 6 eliminated the arbitrary age and period of residency requirements found in 

the former Article V, § 25. 

With the above stated Commission goal of doing away with 

“illogical” residency requirements, it would make little sense to 

require an attorney to declare residency in the circuit with a 

judicial vacancy just days prior to making application to the 

Judicial Qualifications Commission or just prior to receiving 

appointment. 

Cummings, 495 N.W.2d at 500. 

[¶15.] The word “justice” as used in Article V is not merely a generic 

description. It carries with it a specific meaning. Before 1972, members of the 

South Dakota Supreme Court were known as “judges of the South Dakota Supreme 

Court.” The 1972 amendments made a specific change in the title of the judicial 

office. Holders of it were now known as “justices” not “judges.” 

[¶16.] In addition, the drafters of the 1972 Constitution changed the scope of 

the constitutional provision. While the 1889 Constitution referred to “person . . . 

eligible to the office of judge,” Article V, § 6 refers to “[j]ustices of the Supreme 

Court, judges of the circuit courts and persons presiding over courts of limited 
#26089 

-9- 

jurisdiction[.]” Cummings, 495 N.W.2d at 501. “Just because an applicant obtains 

the right to hold office does not automatically make him or her into a circuit court 

judge.” Id. The 1889 text references a person who had the legal opportunity to 

become a judge at some point in the future while the 1972 text contemplates a 

situation where the individual has already achieved that status.5 Thus, Article V, § 

6 applies to “justices,” not a “person . . . eligible to the office of a [judge],” 

“applicants,” “certified applicants” or the like. Cummings, 495 N.W.2d at 501. 

Consistent with that Article V, § 7 which says a vacancy shall be filled by 

“appointment” from a list of “persons” who hold the status of “nominated by the 

judicial qualifications commission.” Although “appointed” to become a Supreme 

Court justice, one does not achieve that office until he or she takes the oath of office 

and it is confirmed that he or she is licensed to practice law in South Dakota, a 

resident of South Dakota, and a citizen of the United States. 

[¶17.] An early case involved a vacancy on the Supreme Court due to death.

In re Supreme Court Vacancy, 4 S.D. 532, 57 N.W. 495 (1894). The Court held that 

the vacancy would continue to exist until there was a person authorized to assume 

the office and that person commenced discharging the duties of the judicial office. 

Id. at 534, 57 N.W. at 495. Under this logic the current vacancy due to the 

 

5. That interpretation is reinforced by the next two sentences of Article V, § 6, 

both of which reference “justices” and not those selected to become one in the 

future. The first says that “[n]o Supreme Court justice shall be deemed to 

have lost his voting residence in a district by reason of his removal to the seat 

of government in the discharge of his official duties.” The final sentence says 

that “justices of the Supreme Court . . . must be licensed to practice law in 

South Dakota.” Thus, all three sentences of Article V, § 6 reference the rights 

and duties of sitting Supreme Court justices. 
#26089 

-10- 

retirement of Justice Meierhenry continues to exist until her appointed successor 

commences discharging the duties of office of “justice.” Accordingly, we hold that 

voting residency must be established prior to assuming office by taking the oath of 

office. Cummings, 495 N.W.2d at 502.6

[¶18.] A similar analysis applies to Article V, § 2, which provides: “[a]ll 

justices shall be selected from compact districts[.]” There the drafters of the 1972 

Constitution struck a balance to ensure that the best qualified person would be 

selected and that each portion of South Dakota would be represented on the 

Supreme Court. The use of the term “justice” in Article V, § 2, as in § 6, indicates 

that the triggering event for both sections is when the oath is taken and the 

governor’s appointee becomes a justice. Establishing voting residency in the district 

prior to taking the oath also establishes selection from the district. 

[¶19.] Consequently, a person selected by the Governor to fill a vacant seat 

on the Supreme Court becomes a justice by qualifying for office by taking an oath or 

affirmation. SDCL 3-1-5. Prior to taking that oath, however, that person must 

fulfill the eligibility requirement to hold that office including establishing voting 

 

6. The Cummings opinion further noted with regards to the Commission’s 

drafting: 

An early Commission draft of September 3, 1970, contained a 

requirement that a Supreme Court justice be a resident “when 

appointed or elected.” Thus, it is clear that the Commission 

considered the concept of residency prior to taking office in some form. 

This language was not retained and after numerous subsequent drafts, 

Art[icle] V, § 6 was to become the Commission’s recommendation 

without dissent. 

Cummings, 495 N.W.2d at 502 n.10. 
#26089 

-11- 

residency in the district from which he or she is appointed. By doing so, that person 

becomes a justice after taking the oath and complies with the constitutional 

directives of being a voting resident of the district from which he or she was 

selected. 

Respectfully submitted this 26th day of July, 2011. 

_____________________________ 

David Gilbertson, Chief Justice 

______________________________________ 

Glen A. Severson, Supreme Court Justice 

________________________________________________ 

Judith K. Meierhenry, Supreme Court Justice (Ret.) 
#26089 

-12- 

[¶20.] I agree with the majority’s opinion regarding the acts necessary to 

establish voting residency. See supra note 4. With respect to the time of 

establishing residency, three constitutional provisions control. South Dakota 

Constitution article V, § 2 requires that justices be “selected from compact districts 

established by the legislature.” (Emphasis added.) Article V, § 6 requires justices to 

have voting residency “within the district . . . from which they are . . . appointed.” 

(Emphasis added.) And Article V, § 7 requires that Supreme Court vacancies “shall 

be filled by appointment of the Governor[.]” (Emphasis added.) Because the 

Governor’s selection of justices must be “from compact districts,” and because the 

selection must be by “appointment,” I conclude that voting residency must be 

established at the time of the appointment; that is, at the time the Governor’s 

appointment becomes final by its filing in the office of the Secretary of State. 

[¶21.] As the majority opinion notes, there was disagreement among the 

members of the 1972 Constitutional Revision Commission whether Supreme Court 

justices should be selected from districts or from the State at large. See supra ¶ 10. 

The disagreement was resolved by the 1972 language in Article V, § 2 retaining the 

requirement that “[a]ll justices shall be selected from compact districts . . . and each 

district shall have one justice.” The 1972 revision further requires that the 

Governor’s selection be a voting resident within the district from which they are 

“appointed.” S.D. Const. art. V, § 6. 

[¶22.] Our interpretation of these provisions should not render the words 

“appointed” and “from compact districts” meaningless. In our prior decision on the 

time for establishing residency for judicial office, we noted that “[n]o wordage should 
#26089 

-13- 

be found to be surplus. No provision can be left without meaning. If possible, effect 

should be given to every part and every word.” Cummings v. Mickelson, 495 N.W.2d 

493, 500 (S.D. 1993) (Gilbertson, Cir. J., plurality) (internal citations omitted). To 

give meaning to the words “appointed,” “from compact districts,” and a “voting 

resident[] within the district,” the person appointed by the Governor must have 

established voting residency in the vacant district at the time of the appointment. 

[¶23.] “SDCL 3-4-6 sets forth the requirements for [gubernatorial] 

appointments. They must be in writing and filed with the Secretary of State.” Id. at 

496 n.3. “Appointments are complete when the appropriate certificate of 

appointment is filed with the Secretary of State.” Id. at 504 (Steele, Cir. J., 

concurring in result). See also Burke v. Schmidt, 86 S.D. 71, 80, 191 N.W.2d 281, 

286 (1971) (stating that the office of the Secretary of State “is the place 

appointments are required to be filed”). Because filing the appointment with the 

Secretary of State is the last executive act necessary to effectuate an appointment, 

residency must be established in the district by the time the written appointment is 

filed. 

[¶24.] I disagree with today’s majority opinion adopting the writing of two 

Justices in Cummings. 495 N.W.2d 493 (Gilbertson, Cir. J.; Miller, C.J.) (concluding 

that residency must be established at the time the candidate qualifies for office by 

taking the requisite oath rather than the time of appointment). See supra ¶¶ 12, 17-

19. The Constitution speaks only in terms of the Governor’s selection by 

appointment, and there is a clear difference between the Governor’s act of 

appointment to an office and a candidate’s subsequent act of qualifying for that office 
#26089 

-14- 

(the oath). The Legislature has recognized that these acts are different and that 

each act occurs at a different time: “Persons appointed to offices . . . shall qualify in 

the same manner as is required of those elected, the time of which shall be 

prescribed in their appointment.” SDCL 3-4-7. 

[¶25.] Nevertheless, the majority eschews the word appointment in favor of 

the word qualification. The majority concludes that a person may be appointed from 

a district other than the one in which the vacancy exists as long as the person 

establishes residency prior to “assuming office”; i.e. “prior to taking the oath of office 

which vests them with the office of justice.” See supra ¶¶ 12, 17. There is, however, 

no constitutional language referring to residency at the time of oath, qualification, or 

assumption of office. The Constitution requires residency within districts and the 

Governor’s selection of persons by “appointment” from districts. S.D. Const. art. V, 

§§ 2, 6 and 7. The majority’s view, that the residency requirement only applies when 

a person already appointed later assumes office, renders the words selection “from” 

districts by “appointment” meaningless.7 

 

7. The majority essentially concedes that the word “appointment” from districts 

is meaningless when it acknowledges that under its view, the triggering event 

for residency is when the “Governor’s appointee” (a person already appointed) 

ultimately becomes a justice. See supra ¶ 18 (emphasis added). Further, 

since the oath can only be taken after appointment, it is difficult to 

understand how the majority can conclude that “[e]stablishing voting 

residency in the district prior to taking the oath also establishes selection 

[(appointment)] from the district.” See id. 

The majority suggests the failure to adopt a 1970 Constitutional Revision 

Commission draft suggests that the 1972 final version eliminated any 

requirement that the applicant be a resident of the district “when appointed or 

elected.” See supra note 6. The Commission minutes do not reflect why that 

draft was proposed or why it was not adopted. But more importantly, the 

 (continued . . .) 
#26089 

-15- 

[¶26.] Moreover, because Article V, § 6 governs both appointments and 

elections, under the majority’s view, persons now seeking election for circuit 

judgeships will no longer have to become a voting resident of the circuit at the time 

of an election. This will permit lawyers and judges in one circuit to run for circuit 

judgeships in other circuits without ever becoming a voting resident, unless they are 

fortunate enough to defeat the resident judge in the election. In adopting the 1972 

amendments, the voters could not have intended the majority’s view. Judge Steele’s 

controlling opinion in Cummings (requiring residency at the time of appointment or 

election) should continue to control the time of residency question. 495 N.W.2d at 

502-04 (Steele, Cir. J., concurring in result). Only that opinion reconciles all of the 

1972 constitutional revisions. See id. at 504 (“reconcil[ing] all of the new provisions 

with the old [to] have the effect of treating judicial candidates and appointees 

equally in terms of residency requirements”). 

________________________ 

(continued . . .) 

Court’s suggestion is inconsistent with the final language requiring that 

justices have voting residency in the district from which they are “appointed,” 

that justices be “selected from compact districts,” and that the Governor make 

that selection by “appointment.” S.D. Const. art. V, §§ 2, 6 and 7. 

Finally, “nothing in the legislative history of Art[icle] V, § 6 . . . indicates any 

intent to change the old requirement that one need only be a resident of the 

circuit [or in this case district] at the time of election or appointment; the 

intent was merely to eliminate the age and [one year] durational residency 

requirements.” Cummings, 495 N.W.2d at 504 (Steele, Cir. J., concurring in 

result). The Commission thought the age and one year residency provisions 

were “[a]rbitrary standards.” There is, however, no history suggesting that 

the Commission rejected all requirements of being a resident at the time of 

election or appointment. See id.
#26089 

-16- 

______________________________________ 

Steven L. Zinter, Supreme Court Justice 

[¶27.] I concur with the writing of Justice Zinter. 

_________________________________________ 

John K. Konenkamp, Supreme Court Justice