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)
“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.”
Tim, i have been following and covering the appointment and i do not get your point, fine as it seems to be. Are you saying the question is the timeframe of when the appointee must set up a residence?
I also wonder: 1. Are there no qualified lawyers in these districts that rules must be bent? 2. Should the concept of districts be dropped? 3. Isn’t this a bit of legal trickery, to set up essentially bogus voting addresses? Seems a sad start for a person with the title “justice.”
Yes, it boils down to timeframe of becoming a voting resident — before you are appointed or before you are sworn in. There are qualified lawyers in the districts but they may have no desire to be a judge or justice. I know people who would be tremendous judges who don’t have that interest. Although other factors play into the selection, I think we want to start with the most qualified pool of candidates possible.
I understand the reasoning behind districts — we don’t want the Court to be made up of the governor’s high school classmates or from one locality — and don’t have a real problem with them. I also think where a candidates lives or has lived is a factor governors consider. Yet the most qualified South Dakota lawyers will essentially have practiced statewide and as the appointee will have to take up residence in the district if they don’t already know of ranches and farms, East and West, urban and rural and the fact a decision may affect each differently, they soon will.
Finally, these aren’t bogus voting addresses. A person from Aberdeen or Belle Fourche would have to move to and reside in the Supreme Court district before taking office. (See footnote 4 in the opinion.) They enter the process knowing that, if selected, they will have to relocate their family. Given the size of our state and bar, I just don’t think we want geography to trump qualifications, especially when the vast, vast majority of legal issues transcend geography.
I have no problem with either side of the Supreme Court’s decision. I just don’t think qualified people should be barred from applying based solely on where they live when a vacancy occurs or required to move just to apply.
Thanks a lot. Good info!
I think voting addresses are always “interesting,” to use a kind term. I recall in the 2000 election, both W and Cheney were living in Texas and the Constitution prohibits candidates on the same ticket to share a state. Cheney re-established residency in his home state of Wyoming but spent little time there. George McGovern was questioned at one point if he had a Mitchell address, i believe in 1980. And a former SD Supreme Court justice from Mitchell reportedly had an apartment in Aberdeen to qualify from that district. When I was in Oregon, Sen. Bob Packwood spent his time “home” at a suite in the luxurious Benson Hotel in Portland but claimed a beat-up trailer on an uncle’s farm as a voting address.