I think the media missed the forest for the trees in covering yesterday’s S.D. Supreme Court opinion on the appointment of members of that court. Much of the coverage seems to focus on the thought that any lawyer in the state can apply for any open judicial position. But that is not the crux or even really part of the decision. As a result, I thought it worthwhile to attempt to explain it without legalese and at its most basic (which is always dangerous).
Article V, Section 2 of the South Dakota Constitution says Supreme Court justices “shall be selected from compact districts established by the Legislature, and each district shall have one justice.” The core question, though, stems from Article V, Section 6. As pertinent here, it says, “Justices of the Supreme Court … must be citizens of the United States, residents of the state of South Dakota and voting residents within the district … from which they are … appointed.” (Emphasis added.) According to the Supreme Court, several of the people on the list submitted to Gov. Daugaard for the vacancy created by the retirement of Justice Judith Meierhenry do not reside in the Supreme Court district she served. Thus, Daugaard asked the Court at what point in the selection process a person must be a voting resident of the Supreme Court district.
It is crucial to understand the entire process. First, the Judicial Qualifications Commission takes applications for the vacancy and then interviews the applicants. It is required to submit the names of “two or more persons” to the governor. The governor, in turn, must select the appointee from the names on the list. The actual appointment occurs when it is filed in writing with the Secretary of State. Finally, although appointed, the individual does not become a justice until he or she takes the oath of office. Thus, the process has basically three stages: application, appointment and swearing in.
The Court split 3-2 in answering Gov. Daugaard’s question. The majority said the relevant time to determine if a person is a voting resident of a particular district represent is when they take the oath of office. Summarized in one sentence, the majority said the constitutional provisions refer to “justices” of the Supreme Court and an individual does not become a justice unless and until they take the oath of office. It is the same result a plurality of the Court reached when the issue arose for circuit court appointments in 1993. The minority focused on the use of the word “appointed.” As a result, their view was voting residence must be established at the time the appointment is filed with the Secretary of State.
As a result, the ruling doesn’t really change who can apply for a judicial vacancy. The relevant constitutional provisions never mention the word “application,” which is probably why the application forms ask if the person is willing to move. In fact, theoretically anyone could apply for a vacancy, although the constitutional requirement that Supreme Court justices and circuit court judges be licensed to practice law in South Dakota makes it unlikely a governor will wait for a person to get a law degree and/or take the bar exam.
The crux and practical effect of the ruling is straightforward. If the person selected by the governor doesn’t reside in the district when they apply, it is the difference between whether the governor tells them “you have to move before I file your appointment” or “you have to move before you take the oath of office.” To report the decision as establishing that its created a free for all for lawyers to apply for judicial vacancies misreads it.
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 the Matter of the Interpretation of S.D. Const. Art. V, §§ 2 and 6,
2011 SD 44 (citation omitted; brackets in original)