author: AMUNDSON, Justice. [¶ 21.] SABERS, Justice GILBERTSON, Justice

text:
    2000 SD 97
    In the Matter of the CERTIFICATION OF A QUESTION OF LAW FROM THE UNITED STATES DISTRICT COURT, DISTRICT OF SOUTH DAKOTA, WESTERN DIVISION, Pursuant to the Provisions of SDCL 15-24A-1, and Concerning Federal Actions Civ. 00-3008 and Civ. 00-3015 (D.S.D.), Titled as Follows: Steven C. Emery, Rocky Le Compte, and James Picotte, Plaintiffs, v. Roger Hunt, in his official capacity as Speaker of the South Dakota House of Representatives, South Dakota House of Representatives, Carole Hillard, in her official capacity as President of the South Dakota Senate, South Dakota Senate, and Joyce Hazeltine, in her official capacity as Secretary of the State of South Dakota, Defendants. United States of America, Plaintiff, v. State of South Dakota, William J. Janklow, in his official capacity as Governor of the State of South Dakota, Harold Halverson, in his official capacity as the President Pro Tempore of the Senate of the State of South Dakota, Roger Hunt, in his official capacity as the Speaker of the House of Representatives of the State of South Dakota, Mark W. Barnett, in his official capacity as Attorney General of the State of South Dakota, and County Auditors for Butte, Corson, Dewey, Harding, Perkins and Ziebach Counties, in their official capacities, Defendants.
    No. 21504.
    Supreme Court of South Dakota.
    Considered on Briefs July 13, 2000.
    Original Proceeding Decided July 26, 2000.

      Laughlin McDonald and Bryan Sells of American Civil Liberties Foundation, Atlanta, Georgia, Patrick Duffy, Rapid City, South Dakota, Attorneys for plaintiffs Steven C. Emery, Rocky LeCompte and James Picotte.
    Ted L. McBride, United States Attorney, Rapid City, South Dakota, Bonnie Ulrich, Assistant United States Attorney, Sioux Falls, South Dakota, Bill Lann Lee, Acting Assistant Attorney General for Civil Rights, Joseph D. Rich, Christopher Coates and Richard Dellheim of Voting Section-Civil Rights Division, Washington, D.C., Attorneys for plaintiff United States.
    Mark Barnett, Attorney General, John P. Guhin, Deputy Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendants.
   AMUNDSON, Justice.

[¶ 1.] Pursuant to SDCL 15-24A-1, District Judge Charles B. Kornmann of the United States District Court, District of South Dakota, certified to this Court the following question:

Whether the South Dakota Legislature acted in violation of Article III, Section 5 of the South Dakota Constitution, by the enactment of Chapter 21, Session laws of 1996, now codified as SDCL 2-2-28.

In his certification, Judge Kornmann indicated that it appears there is no controlling precedent on this issue in the decisions of this Court. As set forth below, the question is controlled by our decision in In re Opinion of Judges, 61 S.D. 107, 246 N.W. 295 (1933) and is answered in the affirmative.

FACTS AND PROCEDURE

[¶ 2.] Plaintiffs in the District Court action are the United States and individual plaintiffs, Steven C. Emery, Rocky Le-Compte, and James Picotte. The individual plaintiffs are voters and residents of Dewey County within legislative District No. 28 and are enrolled members of the Cheyenne River Sioux Tribe. They brought action in United States District Court against defendants who are Speaker of the South Dakota House of Representatives Roger Hunt, the South Dakota House of Representatives, President of the South Dakota Senate Carole Hillard, the South Dakota Senate, and Secretary of the State of South Dakota Joyce Hazeltine, all in their official capacities. They claimed that the current at-large election plan in legislative District No. 28 violates Section 2 of the Voting Rights Act of 1965, 42 USC § 1973, as amended, and is unauthorized by Article III, Section 5 of the South Dakota Constitution. The United. States filed a similar action limited to a claim of violation of the federal statute. Defendants in that action are the State of South Dakota, Governor William Janklow, President Pro Tempore of the South Dakota Senate Harold Halverson, .Speaker of the House of Representatives Roger Hunt, Attorney General of the State of South Dakota Mark Barnett, Secretary of the State of South Dakota Joyce Hazeltine, and the county auditors for Butte, Corson, Dewey, Harding, Perkins and Ziebach counties, all in their official capacities.

[¶ 3.] Following consolidation • of these cases and upon motion by the State defendants, the District Court- certified the above question of state law to this Court, which we accepted.

ANALYSIS AND DECISION

[¶ 4.] Article III, Section 5 of the South Dakota Constitution sets forth an affirmative mandate to the South Dakota Legislature for apportionment of its membership. It provides:

The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and in 1991, and every tew’years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment, shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.

(emphasis added). In 1991, following the 1990 decennial census, the Legislature enacted SDCL 2-2-28, which then provided:

Each representative district as provided for in § 2-2-26 is entitled to two representatives. However, in order to protect minority voting rights, District No. 28 shall consist of two single-member house districts as follows:
(1) District No. 28A — Dewey and Zie-bach counties and that portion of Corson county consisting of Bullhead, Kenel, Liberty, Little Oak, Little Eagle, McLaughlin, Ridge-land ahd Wakpala precincts.
(2) District' No. 28B — Harding and Perkins counties and that portion of Corson county consisting of Delaney, Grand Valley, Lincoln, McIntosh, Morristown and Wautauga precincts, and the cities of McIntosh, McLaughlin and Morristown, and that portion of Butte county west of U.S. Highway 85, north of U.S. Highway 212 and east of S.D. Highway 79, excluding the cities of Belle Fourche and Nisland.

In 1996, the Legislature amended this statute, as follows: “Each representative district as provided for in § 2-2-26 is entitled to two representatives.” We are asked to determine whether this 1996 amendment violates Article III, Section 5 of our Constitution which mandates apportionment in 1991 and every ten years thereafter. Clearly, the 1996 amendment reapportions legislative membership by eliminating Districts No. 28A and 28B.

[¶ 5.] “The Legislature is vested with authority to deal with any subject within the scope of civil government, except insofar as it is restrained by constitutional provisions,-or by the valid treaties and acts of Congress.” Kane v. Kundert, 371 N.W.2d 172, 174 (S.D.1985) (citations omitted). “If constitutional power does not exist, it cannot be acquired by legislative assertion.” State ex rel. Oster v. Jorgenson, 81 S.D. 447, 450, 136 N.W.2d 870, 871 (1965). “ ‘The Constitution is the mother law. It is not the baby. Statutes must conform to the Constitution, not vice versa.’ ” Poppen v. Walker, 520 N.W.2d 238, 242 (S.D.1994) (quoting Cummings v. Mickelson, 495 N.W.2d 493, 507 (S.D.1993) (Henderson, J., concurring in part; dissenting in part)).

[¶ 6.] In In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295 (1933), we answered an inquiry from the Governor regarding the authority of the Legislature to enact a reapportionment measure in the 1933 legislative session. The question required interpretation of Article III, Section 5 of the South Dakota Constitution, which at that time read, in relevant part, that the legislature shall apportion its membership in 1895 and every ten years thereafter and at no other time. When this question was raised, the first legislature meeting after the last federal census was the Twenty-Second Legislature, which met in 1931. It failed to make an apportionment as required by the Constitution. Having failed to perform this duty, the question then became whether the Twenty-Third Legislature had the authority to exercise this duty and make an apportionment. We answered in the affirmative, noting the duty continues until performed.

[¶ 7.] In arriving at this answer, the constitutions of several other states were examined and found to contain language similar to our own regarding apportionment. We noted: “It seems to be held by all the courts which have had occasion to pass upon the matter that an affirmative mandate for legislative action at a specified time is an implied prohibition of action at any other time.” Opinion, 61 S.D. at 111, 246 N.W. at 296 (emphasis added). The fact that the prohibition in our constitutional provision was expressed rather than implied was not held to be a valid distinction. Id. We continued:

The framers of our Constitution did not, we think, have in mind the possibility that a Legislature might disobey the constitutional mandate, and might fail to make an apportionment at the time when that duty was affirmatively imposed upon them by the Constitution. It seems quite apparent that the framers of the Constitution in providing for apportionment ‘at its first regular session, after each enumeration ... but at no other time,’ meant to say only this and nothing more: That the Legislature should make an apportionment at the first session after an enumeration as affirmatively required by the Constitution, and having so done (as the Constitution makers assumed they would) they should not again exercise such power until after another enumeration.
In other words, when a Legislature once makes an apportionment following an enumeration no Legislature can make another until after the next enumeration. ...

Id., 61 S.D. at 111-12, 246 N.W. at 296-97 (emphasis added).

[¶ 8.] Here we address not the Legislature’s failure to act to perform its constitutional duty but whether the Legislature had authority to act when it amended SDCL 2-2-28 in 1996. The holding of Opinion instructs that because the Legislature did perform its constitutional duty when it enacted apportionment legislation in 1991 following the 1990 federal census, it lacked constitutional authority to make another apportionment until after the next federal census.

[¶ 9.] We reinforced this holding in 1985: “When there is an affirmative constitutional mandate for legislative action at a certain specified time, there is an implied prohibition of action at any other time.” Kane, 371 N.W.2d at 174 (citing Opinion, supra). Kane was decided after Article III, Section 5 had been amended in 1982. As in Opinion, we determined in Kane that even without the express prohibition, the affirmative mandate for legislative action precludes action at any other time. The constitutional provision, as amended, reads, in part, that “[a]n apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991.” This language is mandatory and does not contemplate that the Legislature will fail to make an apportionment every ten years after 1991, nor does it provide, as interpreted in Opinion and reinforced in Kane, for an apportionment to be made at any other time after that duty has been discharged. The Sixty-Sixth Legislature, sitting in 1991, apportioned its membership by enacting SDCL 2-2-28. There is no constitutional authority for another legislative apportionment until 2001. Any other conclusion must reverse these two long-standing precedents.

[¶ 10.] Other jurisdictions, examining state constitutions with provisions similar to the 1982 amendment, that is, with no express prohibition of apportionment at a time other than that constitutionally prescribed, have reached the same conclusion. “It is the general rule that once a valid apportionment law is enacted no future act may be passed by the legislature until after the next regular apportionment period prescribed by the Constitution.” Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771, 779-80 (1963); Lamson v. Sec’y of Commonwealth, 341 Mass. 264, 168 N.E.2d 480, 483 (1960); Opinion of the Justices, 254 Ala. 185, 47 So.2d 714, 716 (Al 1950); Jones v. Freeman, 193 Okla. 554, 146 P.2d 564, 573 (1943); People ex rel. Mooney v. Hutchinson, 172 Ill. 486, 50 N.E. 599, 601 (1898); People ex rel. Carter v. Rice, 135 N.Y. 473, 31 N.E. 921, 926 (1892); 25 Am.Jur.2d Elections §§ 7-9 (1999).

If legislative power is given in general terms, and is not regulated, it may be exercised in any manner chosen by the legislature; but where the constitution fixes the time and mode of exercising a particular power it contains a necessary implication against anything contrary to it, and by setting a particular time for its exercise it also sets a boundary to the legislative power. If a power is given, and the mode of its exercise is prescribed, all other modes are excluded.

Hutchinson, 50 N.E. at 601 (emphasis added).

[¶ 11.] In 1982, the voters of this State transferred the duty of apportionment, if not performed by the Legislature, to this Court. The relevant part of Article III, Section 5, as amended, reads:

An' apportionment shall be made by the Legislature in 1983 and in 1991,. and every ten years after 1991. Such apportionment shall be accomplished by December first of- the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to ■ make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.

(emphasis added). This amendment is “the latest expression of the will of the people with respect to matters embraced therein and prevails over all preexisting inconsistent constitutional provisions.” State v. Sathre, 113 N.W.2d 679, 683 (N.D.1962); 16 Am.Jur.2d Constitutional Law § 81 (1998). The plain language of this amendment by the people supports an interpretation that the Legislature may only act to apportion after a decennial census and at no other time.

[¶ 12.] “[A]ny Legislature whose duty it is to make an apportionment” will only be those legislatures meeting in 1983, 1991, and every ten years thereafter. The constitution provides for no other time for apportionment. The 1982 amendment requires this Court to apportion the Legislature should the Legislature fail to perform its duty. The Court’s duty is also mandated to be performed at a time certain. It may only be performed within ninety days after December first of 1991 and every ten years thereafter if the Legislature fails to apportion its membership by the December first deadline. If the Legislature were free to apportion at any time, why transfer this duty to the Court to be performed within a specific period of time in the event the Legislature fails to act?

[¶ 13.] The State argues the 1996 amendment is not an apportionment, but merely changes one voting district from two single-member districts into a dual-member district. Apportionment is defined as the “process by which legislative seats are distributed among units entitled to representation.” Black’s Law Dictionary at 99 (6th ed. 1990). There is no question the 1996 amendment to SDCL 2-2-28 effects an apportionment. The amended statute abolished distribution of a legislative seat in Districts No. 28A and 28B, and distributed two seats to District No. 28.

[¶ 14.] Further, the State claims the 1982 amendment to the Constitution, deleting the words “at no other time” from Article III, Section 5 permits redistricting at times other than following a decennial census. This argument has already been addressed above. “We think no valid distinction can be based upon the point that in our Constitution the prohibition against action at any other time is express rather than implied.” Opinion, 61 S.D. at 111, 246 N.W. at 296. The affirmative constitutional mandate for legislative action at a specified time remains in the present version of Article III, Section 5, thereby providing an implied prohibition of action at any other time. Kane, 371 N.W.2d at 174.

[¶ 15.] Moreover, this argument disregards the language added by the voters in 1982, transferring the duty to apportion to this Court to perform within ninety days after the Legislature’s deadline for performance has expired. We are not at liberty to ignore any part of the provision. “ ‘A Constitutional provision, like a statute, must be read giving full effect to all of its parts.’ The court, in construing a constitutional provision, must have regard to the whole instrument, and must seek to harmonize the various provisions, and if possible, give effect to all of them.” Assoc. Gen. Contractors v. Schreiner, 492 N.W.2d 916, 922-23 (S.D.1992) (citations omitted). The provision is self-executing and, once the duty to apportion has transferred to this Court, prohibits the Legislature from taking further action until after the next federal census.

[¶ 16.] Finally, the State claims the South Dakota Legislature enacted the 1996 amendment in response to the United States Supreme Court decision in Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) to “correct” what it perceived to be an unconstitutional act it enacted in 1991. Miller addressed a redistricting plan in Georgia involving congressional seats which was held to be violative of the Fourteenth Amendment’s equal protection clause because it was drawn on the basis of race without sufficient showing that it was narrowly tailored to achieve a compelling state interest, thus satisfying strict scrutiny.

[¶ 17.] Miller and its progeny must be read in conjunction with South Dakota’s compliance with the Voting Rights Act of 1965, 42 USC § 1973, as amended. See Sanchez v. State of Colorado, 97 F.3d 1303, 1327 (10th Cir.1996) (“Miller left open the question of whether compliance with the VRA, ‘standing alone, can provide a compelling interest independent of any interest in remedying past discrimination.’” (quoting Miller, 515 U.S. at 921, 115 S.Ct. at 2490-91, 132 L.Ed.2d at 783)). This argument by State begs the federal question left pending before the United States District Court and we are without jurisdiction to address this issue. The specific state law question certified to this Court has been answered.

CONCLUSION

[¶ 18.] Constitutional provisions are not grants of power to the Legislature, but are instead limitations on legislative authority. Poppen, 520 N.W.2d at 241 (citing Wyatt v. Kundert, 375 N.W.2d 186, 191 (S.D.1985)). Here, the Legislature acted beyond its constitutional limits. The certified question is answered in the affirmative. The South Dakota Legislature violated Article III, Section 5 of the South Dakota Constitution when it amended SDCL 2-2-28 in 1996. As this amended form is declared unconstitutional, the 1991 version of SDCL 2-2-28 remains in full, force and effect. In re Certification of Questions of Law, 1996 SD 10, ¶ 87, 544 N.W.2d 183, 204; Weegar v. Bakeberg, 527 N.W.2d 676, 678 (S.D.1995).

[¶ 19.] MILLER, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 20.] SABERS and GILBERTSON, Justices, dissent.

[¶ 21.] SABERS, Justice

(dissenting).

[¶ 22.] I disagree with, the majority opinion’s conclusion that the South Dakota Legislature exceeded its constitutional authority in enacting SDCL 2-2-28. Because the 1991 version of SDCL 2-2-28 violatéd the Equal- Protection Clause within the Fourteenth Amendment (amend. XIV, § 1) and the corresponding provision of the South Dakota Constitution (art. VI, § 2), the 1996 amendment was corrective and, therefore, constitutional.

[¶ 23.] The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The purpose is to promote “racial neutrality' in governmental decisionmak-ing.” Miller v. Johnson, 515 U.S. 900, 904, 115 S.Ct. 2475, 2482, 132 L.Ed.2d 762, 771 (1995) (citations omitted). ' Thus, any legislation which makes distinctions on the basis of -race or ethnicity is inherently suspect and, thus, subject to a strict scrutiny analysis. ’ Id. (citations omitted). This includes redistricting legislation. See Shaw v. Reno, 509 U.S. 630, 644, 113 S.Ct. 2816, 2825, 125 L.Ed.2d 511, 526-27 (1993) (providing that “redistricting legislation that is so bizarre on its face that it is ‘unexplainable on grounds other than race,’ ... demands the same close scrutiny that we give other state laws that classify citizens by race.” (quotation omitted)).

[¶ 24.] In 1991, the South Dakota Legislature enacted SDCL 2-2-28:

Each representative district as provided for in § 2-2-26 is entitled to two representatives. However, in order to protect minority voting rights,. District No. 28 shall consist of two single-member house districts as follows:
(1) District No. 28A — Dewey and Zie-bach counties and that portion of Corson county consisting of Bullhead, Kenel, Liberty, Little Oak, Little Eagle, McLaughlin, Ridge-land and Wakpala precincts.
(2) District No. 28B — Harding and Perkins counties and that portion of Corson county consisting of Delaney, Grand Valley, Lincoln, McIntosh, Morristown and Wautauga precincts, and the cities of McIntosh, McLaughlin and Morristown and that portion of Butte county west of U.S. Highway 85, north of U.S. Highway 212 and east of SD Highway 79, excluding the cities of Belle Fourehe and Nisland.

(emphasis added). In application, District 28A was carved out to include the Cheyenne River Sioux Reservation and portion of the Standing Rock Reservation, thereby creating a majority Native American Indian district. The plain statutory language unequivocally provides that the purpose of the re-districting was to “protect minority voting rights.” This results in racial gerrymandering — plain and simple — and, therefore, violates the Fourteenth Amendment. The President of the Senate in 1991 corroborated this purpose:

[District 28A] was configured as a single-member district primarily on the basis of race. In other words, [it] was configured as a single-member district to gather within it as many persons as possible who were [Native American] Indian so as to maximize their chance of electing a [Native American] Indian to the legislature.
Race was the predominant factor in drawing two single-member districts in District 28 in 1991 and the other traditional districting principles were subordinated to racial objectives.

Additionally, the minutes from the Redistricting Preparation Committee continually discuss a desire to maximize the “likelihood ... for the Lakota to elect legislative representatives.” Obviously, race was the predominant, overriding factor explaining the legislature’s redistricting of District 28.

[¶ 25.] In 1993 and 1995, the United States Supreme Court held that redistricting legislation, even if it is neutral on its face, is unconstitutional if the effect is to separate citizens “into different voting districts on the basis of race.” Miller, 515 U.S. at 911, 115 S.Ct. at 2486, 132 L.Ed.2d at 776. See also Shaw, 509 U.S. at 657, 113 S.Ct. at 2832, 125 L.Ed.2d at 535 (stating that “race-based districting by our state legislatures demands close judicial scrutiny.”). In its analysis, the Court determined that districting on the basis of race “assumes from a group of voters’ race that they ‘think alike, share the same political interests, and will prefer the same candidates at the polls,’ it engages in racial stereotyping at odds with equal protection mandates.” Miller, 515 U.S. at 920, 115 S.Ct. at 2490, 132 L.Ed.2d at 782 (quoting Shaw, 509 U.S. at 647, 113 S.Ct. at 2826, 125 L.Ed.2d at 529) (citing Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411, 424 (1991) (stating “We may not accept as a defense to racial discrimination the very stereotype the law condemns.”)). The Court also clarified that its holding in Shaw extended to prohibit racial gerrymandering regardless of how compact or contiguous the new district was:

Our circumspect approach and narrow holding in Shaw did not erect an artificial rule barring accepted equal protection analysis in other redistricting cases. Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines.

Id. at 913, 115 S.Ct. at 2486, 132 L.Ed.2d at 777.

[¶ 26.] After the Miller décision was issued, Senator Lee 'Schoenbeck testified' that he believed “that the creation of Districts 28A and 28B by the 1991 South Dakota Legislature violated the Equal Protection Clause of the ... Fourteenth Amendment.” To remedy this constitutional violation, he introduced legislation, in 1996, to amend SDCL 2-2-28 by returning District 28 to a multi-member district. The amendment passed and SDCL 2-2-28 currently provides: “Each representative district as provided for in § 2-2-26 is entitled to two representatives.”

[¶ 27.] The plaintiffs argue that this amendment violates Article III, Section 5 of the South Dakota Constitution: “[a]n apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991.” Regardless of whether the legislature was prohibited from reapportioning the district in 1996, it was required to abide by the federal constitution and when there is an unavoidable conflict between the application of state and federal constitutions, the clear language of the Supremacy Clause controls:

This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.

U.S. Const, art. VI, cl. 2. After evaluating and balancing the competing constitutional values at stake, one must logically conclude that the substantive provisions of the United States Constitution control over the procedural provision within the South Dakota Constitution.

[¶ 28.] It is rudimentary black-letter law that a statute may not be enacted in derogation of the state or federal constitutions. See Kane v. Kundert, 371, N.W.2d 172, 175 (S.D.1985) (stating that “[i]t is rudimentary that a statute must serve and cannot abrogate the Constitution.”). When a legislative enactment does conflict with the federal Constitution, it “must be disregarded - treated as if [it was] never enacted - by all courts recognizing the Constitution as the paramount law of the land.” Wolff v. New Orleans, 103 U.S. 358, 365, 26 L.Ed. 395, 398 (1880). After considering these rules, we must declare that the 1991 version of SDCL 2-2-28 was invalid because it conflicted with the Due Process Clause of the Fourteenth Amendment. Furthermore, the 1996 amendment is valid because the legislature has a continuing duty of reapportionment and that duty continues until it is performed within the ambits of the state and federal constitutions. See In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295, 297 (1933).

[¶ 29.] In summary:

(1) It is clear that the condition “at no other time” has been deleted.
(2) Even if the condition remained in effect, it would not prohibit a mere correction to a reapportionment plan in contrast to the creation of a new reapportionment.
(3) Even if the above condition remained in effect, it would not prevent a mere correction to an illegal provision in a reapportionment plan, as here.
(4) Therefore, the legislative enactment of SDCL 2-2-28 was not only constitutional, it would, in effect, be required by the Constitutions of the State of South Dakota and the United States.

GILBERTSON, Justice

(dissenting).

[¶ 30.] I agree that the 1996 amendment to SDCL 2-2-28 deals with apportionment. However, I disagree that it violates Article III, § 5 of the South Dakota Constitution. While that provision makes it the duty of the legislature to apportion itself every ten years, as the article is currently enacted it does not restrict the legislature from exercising its right to apportion on other occasions. Not only is this supported by the express language of the Constitution, but also by the history of this provision and its predecessor. Therefore I respectfully dissent.

[¶ 31.] In ascertaining the intent of the adopters of the current constitutional text we look first to its predecessor. S.D. Automobile Club v. Volk, 305 N.W.2d 693, 697 (SD 1981). The original version of Article III, § 5 enacted in 1889 stated as follows:

The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy. Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state, (emphasis added).

This article traces its roots back to the Constitutional Convention of 1883 where a similar provision passed without recorded debate. See Journal of the Constitutional Convention of 1883, South Dakota Historical Collections Vol. 21, p. 350, 358 (1942).

[¶ 32.] However, when the same draft was presented to the 1885 Constitutional Convention, a vigorous debate ensued. One faction argued that the rapid growth of the proposed new State of South Dakota justified the legislative flexibility to authorize a more frequent apportionment. An amendment was offered to strike the words “but at no other time.” South Dakota Constitutional Convention Debates of 1885, Vol. 1 pp. 207-09. This disputed language was crucial to this debate as it was recognized that the constitution was but a limit on the power of the legislature rather than a grant of power to it. Id. at 207. See also Territory v. Scott, 3 Dak. 357, 20 N.W. 401, 404 (1884). Ultimately the forces in favor of the restrictive “at no other time” position were to prevail and Article III, § 5 was so enacted in 1889. “First and foremost, the object of construing a eonstitution[al provision] is to give effect to the intent of the framers óf the organic law and of the people adopting it.” In re Janklow, 1999 SD 27, ¶ 5, 589 N.W.2d 624, 626 (citing Schomer v. Scott, 65 S.D. 353, 274 N.W. 556, 559 (1937); State v. Jorgenson, 81 S.D. 447, 136 N.W.2d 870, 875 (1965)).

[¶ 38.] This Court was called upon to interpret this provision in Opinion of the Judges, 61 S.D. 107, 246 N.W. 295 (1933). The issue before the Court was whether the 1933 legislature had the authority to apportion itself in light of the fact that the 1931 legislature had failed to act although required to do so by Article III, § 5. We found that such authority existed.

[¶ 34.] In dictum this Court cited cases from other jurisdictions that, implied a restriction “at no other time” if one was not expressly drafted into the constitution. In so doing the Court failed to cite to our own constitutional debates as to the actual reason this express language was specifically used. It is very clear from these debates that if the legislature was to be precluded from authorizing an apportionment more often than every ten years, the limitation had to be an express one. No delegate in the Constitutional Convention of 1885 attempted to argue that the proposed text of this article contained an implied limitation on more frequent apportionments than were specifically enumerated. Further, the Court failed to consider the constitutional doctrine that was recognized by the Constitutional Convention of 1885 ■ during this debate, that the constitution is but a limit on legislative authority and not a grant of authority to that body. See State Census, 62 N.W. at 130.

[¶ 35.] In 1982 an amended version of Article III, § 5 was proposed to the voters. It passed and is the current provision, in effect. It states:

The ' Legislature shall apportion its ' membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on .the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and -1991 and every ten years after 1991. Such ■ apportionment shall; be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.

Gone were the words “but at no other time.” “Usually amendments are adopted for the express purpose of making a change in the existing system.” Volk, 305 N.W.2d at 697.

[¶ 36.] This Court presumes that the people adopted this amended constitutional provision in view of and with the understanding of the prior existing provision. Kneip v. Herseth, 87 S.D. 642, 214 N.W.2d 93, 102 (1974). An examination of the explanation of the ballot questions drafted by the South Dakota Secretary of State at the 1982 election sets out verbatim both the old text and the proposed text upon which the voters were to pass. (See attached copy). The deletion of the “but at no other time” language was obvious to the voters. “The courts are under the duty to consider the old law, the mischief, and the remedy, and to interpret the constitution broadly to accomplish the manifest purpose of the amendment.” Volk, 305 N.W.2d at 697 (citing 16 Am.Jur.2d Constitutional Law § 88 (1979) (footnotes omitted)).

[¶ 37.] Thus it is clear that the advocates of legislative flexibility who lost their argument at the 1885 Constitutional Convention were ultimately vindicated by the voters in 1982. The express constitutional prohibition against the now challenged legislative apportionment that was to occur in 1996, was removed in 1982. As such, I would hold the 1996 amendment to SDCL 2-2-28 to be constitutional.

[¶ 38.] For the above reasons I respectfully dissent.

      . In its entirety, this provision read:
      The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy. Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state.

      . As this Court observed in Opinion, 61 S.D. at 113, 246 N.W. at 297, "'[t]he failure to perform the duty cannot cancel the legislative obligation.' ” (quoting Botti v. McGovern, 97 N.J.L. 353, 118 A. 107, 108 (N.J.1922)). Observing the doctrine of separation of powers, this Court cannot compel the Legislature to perform its constitutional duties. In re State Census, 6 S.D. 540, 542, 62 N.W. 129, 130 (1895) (interpreting SDConst. Art. Ill, § 5). The voters merely transferred this obligation to the Court to perform should the Legislature fail to do so.

      . In a separate concurrence in Bush v. Vera, 517 U.S. 952, 990, 116 S.Ct. 1941, 1968, 135 L.Ed.2d 248, 278 (1996), Justice O'Connor announced that “compliance with the results test of § 2 of the Voting Rights Act (VRA) is a compelling state interest.”

      . Plaintiffs argue:
      This Court can take judicial notice of the facts that Native Americans in South Dakota have a common and distinct history, a special quasi-sovereign tribal status, and a unique political status under the treaties, laws, and executive orders of the United States and under the laws of South Dakota. It is clear that placing tribal members from the Cheyenne River Sioux Reservation and the Standing Rock Sioux Reservation in the same district is not to indulge in racial stereotyping but simply to recognize communities that have a ‘common thread of relevant interests.’ (quoting Miller, 515 U.S. at 920, 115 S.Ct. at 2490, 132 L.Ed.2d at 782).
      I disagree that we can take judicial notice that all Native American Indians within District 28A have the same perspective as the plaintiffs do in this case. To comply with plaintiff’s request is the equivalent of engaging in racial stereotyping because we would be assuming that the affected Native Americans " ‘think alike, share the same political interests, and will prefer the same candidates at the polls[.]’ ” Miller, 515 U.S. at 920, 115 S.Ct. at 2490, 132 L.Ed.2d at 782 (quotation omitted). In short, plaintiffs request that we impose "the very racial stereotyping the Fourteenth Amendment forbids.” Id. at 928, 115 S.Ct. at 2494, 132 L.Ed.2d at 787.

      . Advocates of allowing legislative discretion in this matter argued that the rapid growth of the new state may require apportionment after every legislative session. Opponents countered that this would create "danger” that such a decision may rest on "the interest of the political party dominant[.]” South Dakota Constitutional Convention Debates of 1885, Vol. 1 p. 207. Participating in this debate were many of the existing and future leaders of the judiciary. Delegate Dighton Corson who in 1889 was to become the first Presiding Judge of the South Dakota Supreme Court, opposed the deletion of the words "but at no other time” for the following reason:
      We have a census taken every ten years by United States officials. It is provided here that in the year 1895 a census shall also be taken. There are two provided for in ten years, and certainly that is enough, and I do not think it wise to subject the state to any unnecessary expense, and I am opposed to striking out any portion of it. Id. 205-206.
      Also participating in the debate were Alphonso Kellam who also became a Judge of the South Dakota Supreme Court in 1889 and Judge Wilmot Brookings who had previously served on the Dakota Territorial Supreme Court. The Chair of the debate was the Honorable A.J. Edgerton who at that time was the Chief Justice of the Dakota Territorial Supreme Court. See generally 1999-2000 South Dakota Legislative Manual, pp. 490-91.

      . A dispute also arose over the words "shall” or “may” in regards to the duty of the legislature to conduct the census at the stated time. The "shall” faction successfully carried its position. However, this Court subsequently in In re State Census, 6 S.D. 540, 62 N.W. 129 (1895) held that when the 1895 legislature refused to conduct the census on the claim that it was not needed and was a waste of money, even though required by the Constitution, the legislature could not be forced by this Court to do so and the existing apportionment law would remain in effect until it did act.

      . Chapter 1 of the 1982 Session Laws indicates that this amendment was proposed by direct initiative of the voters rather than by the legislature. Thus, unlike the 1889 provision of this article, there exists no secondary material to be of assistance in interpreting the intent of the “framers ... and the people adopting it.” Janklow, 1999 SD 27, ¶ 5, 589 N.W.2d at 626.

      . The Court today reasons that under the current version of Article III, § 5, "if the Legislature were free to apportion at any time, why transfer this duty to the Court to be performed within a specific period of time in the event the Legislature fails to act?” The answer is that under cases such as Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) it was held that malapportioned state legislatures constitute a violation of the Fourteenth Amendment Equal Protection Clause and as such must be promptly corrected when found to exist. The 1982 amendment to Article III, § 5 of the South Dakota Constitution recognized this requirement and if it were not timely done by the Legislature every ten years following the U.S. Census, it would be done by the South Dakota Supreme Court to avoid violation of the United States Constitution. Given the fact that the Legislature in 1895 and 1931, despite the express mandate of Article III, § 5, had refused to perform the required apportionment, the 1982 authorization for apportionment by the South Dakota Supreme Court in the face of legislative inaction cured any future threat of this prior problem and a Baker v. Carr violation. This is an entirely separate matter from the question now before us as to whether the legislature has the authority to exercise its prerogative to conduct an apportionment more often than the minimum that is expressly mandated by Article III, § 5.


source: Caselaw Access Project

author: KONENKAMP, Justice SABERS, Justice

license: Public Domain

text:
    2000 SD 102
    In the Matter of the Application of B.Y. DEVELOPMENT, INC.
    No. 21104.
    Supreme Court of South Dakota.
    Considered on Briefs March 20, 2000.
    Decided Aug. 2, 2000.

      Roger A. Tellinghuisen, Michelle K. Percy, Spearfish, South Dakota, Paul J. Brad-sky, Rapid City, South Dakota, Attorneys for appellee B.Y. Development, Inc.
    Jon W. Mattson, Deadwood, South Dakota, Attorney for City of Deadwood and the Deadwood Historical Preservation Commission.
    Mark Barnett, Attorney General, Michele K. Bennett, Diane Best, Assistant Attorneys General, Pierre, South Dakota, Attorneys for appellant South Dakota Department of Education and Cultural Affairs, Office of History.
   KONENKAMP, Justice

[¶ 1.] This appeal concerns the proposed construction of a hotel-gaming facility within a historic district in the City of Deadwood, South Dakota. The Deadwood Historic Preservation Commission approved a modified project plan, with alterations suggested by, among others, the Department of Education and Cultural Affairs, Office of History. On appeal before the circuit court, the Office of History contended that although it did have an earlier opportunity to comment on the project, it did not have notice of the modified project plans ultimately approved by the Commission. In its ruling, the circuit court concluded that the Office of History received proper statutory notice of the project, and that later alterations to the plans did not require a new statutory notice, as every design change is not the instigation of a new project. We affirm.

Background

[¶ 2.] In the spring of 1998, B.Y. Development, Inc. proposed a plan for a hotel-gaming project on the 300 block of Main Street in Deadwood. Located near the edge of town, the project area lies within the Deadwood National Historic Landmark District, but outside the Downtown Historic District. The area was zoned commercial in 1990. Among the properties currently in the general vicinity are an apartment building, a gas station-convenience store, several hotels, a restaurant, an insurance agency, and a rodeo grandstand and arena. The project required demolition of a 1950s era motel and certain residences, and the relocation of other buildings.

[¶ 3.] B.Y. applied to the Deadwood Historic Preservation Commission for permits to demolish the buildings in April and May of 1998. No plans for the project following the demolition were submitted at that time, so the application was tabled until the plans were presented. Pour preliminary concept designs were submitted to the Commission on May 18, 1998. The City of Deadwood reviewed these designs and suggested changes. In the next several weeks, B.Y. submitted further preliminary concept designs that reflected the comments made by the City and the Commission. On June 5, 1998, the City submitted the preliminary concept design to the State Department of Education and Cultural Affairs, Office of History, for review and comment pursuant to SDCL 1-19A-11.1. B.Y. submitted color drawings of the project and preliminary floor plans, a site plan, and elevations to the City to review on June 7. The City suggested changes, which B.Y. incorporated into the plans, and on June 18, B.Y. submitted updated plans. On June 24, the- Commission reviewed these revised project plans. B.Y supplied a computerized drawing of the completed project, after which the Commission approved the project design and sent its approval to the Office of History with an abbreviated case report.

[¶ 4.] After reviewing the project plans, the Office of History issued a “Determination of Adverse Effect.” The Commission reviewed this, but reaffirmed its approval. Several days later the Office of History met with the City and B.Y. to discuss design alternatives. No consensus for an acceptable design was reached at this meeting. B.Y., however, incorporated some suggestions made by the Office of History and revised the project, reducing the building height from 58 feet to 45 feet, increasing the length of the building from 250 feet to 296 feet, decreasing the number of rooms from 90 to 80, adding landscaping to improve the appearance of the facade, and simplifying the design. Before the Commission met to review and vote on the revised plan on August 12, 1998, Christopher Hetzel, the Deadwood Historic Preservation Officer, spoke with the Office of History about the revised plan. The Office informed him that this plan too would not be approved and Hetzel duly reported that decision to the Commission. Nonetheless, formal notice of the revised plan was not sent to Office of History as it now insists is required under SDCL 1-19A-11.1. The Commission approved the revised plan and entered its written determination and case report detailing the factors and alternatives it considered in making its decision.

[¶ 5.] The Office of History appealed the matter to the circuit court. At the hearing, B.Y. sought to admit affidavits ■ that had not been presented to the Commission. Over the Office of History’s objection, the court admitted a portion of the affidavits. Thereafter, the court affirmed the decision of the Commission. The Office of History now appeals to this Court contending that (1) the circuit court erred by improperly admitting evidence outside the administrative record; (2) the Commission erred by issuing its final decision before the Office of History was provided with and afforded an opportunity to review final project plans; (3) the Commission erred by failing to address each feasible and prudent alternative to the proposal; and (4) the Commission erred by failing to include concise and explicit fact statements to support its findings.

Standard of Review

[¶ 6.] We review an agency’s decisions the same as the circuit court, “unaided by any presumption of the correctness of the circuit court’s determination.” Olson v. City of Deadwood, 480 N.W.2d 770, 775 (S.D.1992) (citation omitted). Our first inquiry under SDCL 1-26-36 is whether the question is one of fact or law. Questions of law and statutory construction are fully reviewable. Hanten v. Palace Builders, Inc., 1997 SD 3, ¶ 8, 558 N.W.2d 76, 78. Mixed questions of law and fact are also fully reviewable. Abild v. Gateway 2000, Inc., 1996 SD 50, ¶ 6, 547 N.W.2d 556, 558-59. Factual findings are reviewed under the clearly erroneous standard. Sopko v. C & R Transfer Co., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228.

Analysis and Decision 1. Admission of Evidence Outside the Administrative Record

[¶ 7.] The Office of History challenges the admissibility of the affidavits, pointing out that they were written after the Commission made its decision, and the Commission therefore could not have considered them. In the circuit court hearing, B.Y. offered the affidavits of Christopher Hetzel, the Deadwood Historic Preservation Officer, and Bernadette Williams, the Deadwood Zoning Administrator. In admitting the affidavits, the court explained:

Well, it’s my view that some of it is additional evidence; some of it is not. And I will — I will accept the filings only insofar as they’re specifically referenced and it’s evident that that evidence was considered by the Commission. The affidavits also go beyond that and to the extent that they incorporate any other matters that aren’t specifically in the record or referred to in the record and show that they were considered, they’re excluded.

It is unclear, however, exactly what was admitted and what was excluded. Pointing to SDCL 1-26-35, the Office of History believes that while this statute allows a court sitting without a jury to go beyond the record in certain instances, the exceptions are inapplicable here. Because the circuit court did not specify what was being admitted, the Office of History argues that the affidavits and the accompanying exhibits should have been entirely excluded.

[¶ 8.] Comparing the information before the Commission and the information in the circuit court’s findings and conclusions confirms that the findings that form the basis for the court’s decision do not refer to any fact stated in the affidavits not also contained in the official record. Those items not considered by the Commission were also not considered by the court in its ruling. For example, an attachment to the affidavit of Williams lists variances granted in zoning unit four, the most stringent unit for historic preservation, and in zoning unit ten. The list states the various Deadwood businesses given a variance and the nature of the variance. A check of the references to the location in the record that allegedly indicate that the Commission considered this information shows that the Commission discussed the height of several buildings, but no specific variances were mentioned. The court’s findings and conclusions do not mention this information either. Similarly, Williams stated in her affidavit that the project as approved by the Commission “satisfies the 1:7:1 Floor Area Ratio requirement in Commercial Highway zoning.” It would be an overstatement to say that the general conversations in the record concerning zoning to which the court was directed are the same as this specific information, but the circuit court also did not include this in its findings.

[¶ 9.] As declared in SDCL 1-26-35, the court’s review is confined to the record below, absent an exception. Stanley County Sch. v. Stanley County Educ. Ass’n, 310 N.W.2d 162, 164 (S.D.1981). However, we presume until the contrary is shown that the “court did not rely on improper evidence.” State Highway Comm’n v. Foye, 87 S.D. 206, 205 N.W.2d 100, 103 (1973) (citing Sabbagh v. Prof'l and Bus. Men’s Life Ins. Co., 79 S.D. 615, 116 N.W.2d 513, 521 (1962)). It appears the circuit court relied only on evidence the Commission considered in making its decision. Even though the court did not specify what exact evidence it admitted, it made clear that to the extent an affidavit contained information not specifically in or referred to in the record, it would not be considered. The Office of History has not shown how this process harmed its position. In re Novaock, 1998 SD 3, ¶ 10, 572 N.W.2d 840, 843. Because the court confined its determination to the record, we find no prejudicial error.

2. Opportunity to Review Final Project Plans

[¶ 10.] The Office of History argues that the Commission is required to notify the Office before proceeding with a final decision. Its source for this view is SDCL 1-19A-11.1:

The state or any political subdivision of the state, or any instrumentality thereof, may not undertake any project which will encroach upon, damage or destroy any historic property included in the national register of historic places or the state register of historic places until the office of history has been given notice and an opportunity to investigate and comment on the proposed project. The office may solicit the advice and recommendations of the board with respect to such project and may direct that a public hearing be held thereon. If the office determines that the proposed project will encroach upon, damage or destroy any historic property which is included in the national register of historic places or the state register of historic places or the environs of such property, the project may not proceed until:
(1) The Governor, in the case of a project of the state or an instrumentality thereof or the governing body of the political subdivision has made a written determination, based upon the consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to the historic property, resulting from such use; and
(2) Ten day’s notice of the determination has been given, by certified mail, to the office of history. A complete record of factors considered shall be included with such notice.
Any person aggrieved by the determination of the Governor or governing body may appeal the decision pursuant to the provisions of chapter 1-26.
The failure of the office to initiate an investigation of any proposed project within thirty days from the date of receipt of notice thereof is approval of the project.
Any project subject to a federal historic preservation review need not be reviewed pursuant to this section.

After the Office of History decided the initial proposed project would encroach upon, damage, or destroy historic property, B.Y prepared a modified design. This design, the Office of History argues, amounted to a new proposal, and the Office was not given an opportunity to investigate and comment on that proposal before the plans were submitted to the Commission .for final approval.

[¶11.] First, SDCL 1-19A-11.1 does not give the Office of History the power to disapprove the Commission’s final decision. Instead, the statute provides that the Commission may not take any action on a proposed project until the Office of History has been given an opportunity to investigate and comment on it. Even if the Office of History concludes that a project “will encroach upon, damage or destroy any historic property,” the project may proceed if the Commission finds that, based on consideration of all relevant factors, “there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to the historic property, resulting from such use.... ” SDCL 1-19A-11.1(1). Therefore, unless the Office of History is successful on appeal, following the Commission’s written determination the project may proceed despite the Office of History’s objections. Here, the circuit court found that the revised plans, rather than being a new proposal, were modifications, which the Commission had the authority under the statute to finally approve.

[¶ 12.] Second, SDCL 1-19A-11.1 calls for “notice and an opportunity to investigate and comment on the proposed project.” (Emphasis added.) We usually give statutory “words and phrases their plain meaning and effect.” South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exch., 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209 (quoting Delano v. Petteys, 520 N.W.2d 606, 608 (S.D.1994) (quoting In re Famous Brands, Inc., 347 N.W.2d 882, 884-85 (S.D.1984))). Had the Legislature intended to give the Office of History the right to notice and an opportunity to comment on every design change in a project, it could have used language to that effect.

[¶ 13.] The words “proposed project” suggest that design modifications do not necessarily trigger a requirement for resubmission of project plans to the Office of History. The Legislature also chose the word “comment” rather than “approve.” Therefore, under our interpretation of SDCL 1-19A-11.1, the Commission was not required to resubmit the adjusted plans to the Office of History. As a practical matter, to hold otherwise would create a situation where every alteration in a plan would subject a project to resubmit-tal, effectively bringing construction to a standstill. We do not believe that is what the Legislature intended.

[¶ 14.] Third, even if we were to interpret the statute to prohibit design changes without a full resubmission to the Office of History, as the circuit court found, there was no prejudice to the Office of History because there was no showing how any further comments would have made any difference in the final plans the Commission approved. After all, the project remained essentially the same, but with some modification made in part to mollify the Office of History.

3. Feasible and Prudent Alternatives

[¶ 15.] Next, the Office of History contends that the Commission did not consider all feasible and prudent alternatives to the proposal. In accord with the requirements of SDCL 1-19A-11.1(1), the Commission must issue a written decision after an adverse finding by the Office of History. The Commission’s determination must conclude, “based upon the consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to the historic property, resulting from such use.... ” The Office of History argues that rather than considering “all relevant factors,” such as the historic criteria outlined in ARSD 24:52:07:04 and 36 CFR 67, the Commission considered only economic factors, giving cursory attention to historical criteria.

[¶ 16.] The Commission is not required to consider as “relevant factors” any and all alternatives, but only those supported by sufficient facts to indicate they are feasible and prudent. B.Y. points out that according to the South Dakota Local Preservation Handbook (1995), all that is required is the exploration of feasible alternatives to reduce harm to historic property. Further, B.Y. continues, the extensive consideration given to the plans over a four month period, along with the detail set out in the case report, establish that while economic factors were considered, all relevant factors were considered as well.

[¶ 17.] The circuit court noted that the Office of History did not brief or argue this issue and thus the matter was not properly before it. Generally, failure to raise an issue below will preclude appellate review. Matter of Simpson, 500 N.W.2d 624, 626 (S.D.1993); Sharp v. Sharp, 422 N.W.2d 443, 445 (S.D.1988). Our function on appeal is to decide from the record whether the Commission took a hard look at the prudent and reasonable alternatives using relevant factors and based its decision on evidence. The weight to be given the individual factors is for the Commission to decide. The record shows that, among other things, the Commission reviewed several proposed designs and rejected several; considered smaller and different shaped buildings; expressed concern about the height of the building, rejecting taller structures and eventually approving a height of forty-five feet; considered setbacks from the street; evaluated overall width and mass, as well as overall appearance, including landscaping; appraised the impact on the surrounding historic properties; and recognized that the area is zoned commercial, in that residential development was not allowed. It is apparent that the Commission considered not only economic factors, but also other reasonable alternatives.

4. Factual Support for the Commission’s Findings

[¶ 18.] Finally, the Office of History argues that the Commission failed to reveal the underlying facts supporting its findings, as required by SDCL 1-26-25. The Office contends that the Commission’s written decision does not establish a basis for its approval of the project, as evidenced by the record having to be supplemented with affidavits. The Commission, the Office asserts, did not make specific findings on the economic feasibility of or the need for a project of this size, or what it meant by its finding that “[o]ther designs were also discussed, but were rejected because they would not accommodate the project’s objectives.” As it exists, the Office of History argues, the record does not allow for meaningful judicial review.

[¶ 19.] We conclude that SDCL 1-26-25 does not apply to the Commission’s preparation of its written decision; rather, that statute applies to contested cases. A contested case is one in which a matter is to be determined by an agency. The definition of “agency” under SDCL 1-26-1(1) expressly excludes any unit of local government. Therefore, the Commission is not required to follow the requirements of SDCL 1-26-25 in conducting its administrative responsibilities. Also, SDCL 1-29A-11.1 requires the Commission to prepare a written determination, not findings. The Commission appears to have followed the directives of this statute and SDAd-minR 24:52:07:03 in preparing its written decision. The Commission is not required to follow all the requirements of an administrative agency, but it must make a written decision detailing its reasons for approving a project.

[¶ 20.] Here, the written decision adequately details the reasons the Commission arrived at its conclusion. The decision follows closely the pattern set forth in SDAdminR 24:52:07:03, which specifies the requirements for case reports submitted to thé Office of History. Presented in the decision are alternatives and other relevant factors the Commission considered. We conclude that this writing was adequate to provide meaningful appellate review, and that it satisfied the requirements of SDCL 1-19A-11.1 and SDAdminR 24:52:07:03.

[¶ 21.] Affirmed.

[¶ 22.] MILLER, Chief Justice, and AMUNDSON and GILBERTSON, Justices, concur.

[¶ 23.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 24.] I respectfully disagree with the majority opinion’s determination in Issue 2 that the Office of History was provided with an opportunity to investigate and comment on the project ultimately approved by the Commission.

[¶ 25.] SDCL 1-19A-11.1 prohibits the Commission from undertaking a project that will “encroach upon, damage or destroy any historic property ... until the [OJffice of [H]istory has been given notice and an opportunity to investigate and comment on the proposed project[.]” Given the plain meaning of this statutory language, the obvious purpose of the statute is to protect historical property. In order to carry out that purpose, the legislature requires that the Office of History be provided with an opportunity to investigate and comment on any proposed project that is to be constructed on historical property.

[¶ 26.] Here, the site for the proposed project involves historical property in Deadwood. The Office of History reviewed and commented on the initial plans. However, after the Office commented on the initial plans, substantial changes were made: (1) the height of the building was reduced from fifty-eight feet to forty-five feet; (2) the length of the building was increased from 250 feet to 296 feet; (3) the number of the rooms was reduced from ninety to eighty; and (4) landscaping was added to aesthetically improve the facade. Obviously, this plan was drastically different in dimension, capacity and appearance than the initial plan submitted to the Office of History. In fact, these substantial changes constitute an entirely new plan. Therefore, the Office of History was statutorily entitled to evaluate the new plan to determine the extent of the encroachment, damage or destruction of historic property. However, this new plan was never submitted to the Office of History. Instead, BY circumvented the statutory procedure and obtained final approval from the Commission.

[¶ 27.] The majority opinion terms these substantial and material alterations as a mere “design change.” The effect of this characterization is to invite developers to submit preliminary plans to the Office of History once and, thereafter, substantially change the plans and seek final approval from the Commission. Clearly, this was not the legislature’s intention, which was to preserve and protect historical property-

[¶ 28.] The Office of History is a regulatory agency established to ensure that historic preservation concerns are satisfied. While the legislature does not require that developers comply with the comments from the Office of History, it did, nonetheless, clearly require that the Office of History be provided with an opportunity to “investigate and comment on the proposed project.” This is part of the statutory process to ensure that “there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to the historic property....” SDCL 1-19A-11.1(1). Here, the statutory process was circumvented and the Office was denied its opportunity to investigate and comment on the project that received final approval from the Commission.

[¶ 29.] The majority opinion further claims that a reversal “would create a situation where every alteration in a plan would subject a project to resubmittal, effectively bringing construction to a standstill.” I disagree. Insignificant modifications do not require resubmissions to the Office before they are implemented. However, when the plans substantially change the dimension, appearance and capacity, resubmission to the Office of History is statutorily required because the changes constitute a new proposed plan.

[¶ 30.] Because a new plan was proposed to the Commission without providing an opportunity to the Office of History to investigate and comment, the Commission’s final approval was premature and illegal. Therefore, this case should be reversed and remanded.

[¶ 31.] I would also reverse and remand on Issue 1 because the acceptance of affidavits outside the record clearly violates SDCL 1-26-35 and demonstrates the cavalier attitude of the trial court and this court toward “historic preservation” when it dares to get in the way of “economic progress.” SDCL 1-26-35 provides that “[t]he review shall be conducted by the court without a jury and shall be confined to the record.” (emphasis added). The plain language cannot be any plainer.

      . SDCL 1-26-35 provides:
      The review shall be conducted by the court without a jury and shall be confined to the record. A trial de novo may not be granted unless otherwise authorized by law, but. in cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, may hear oral argument.

      . SDCL 1-26-25 states in part:
      A final decision or order adverse to a party in a contested case shall be in writing or stated in the record. It may affirm, modify, or nullify action previously taken or may direct the taking of new action within the scope of the notice of hearing. It shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

      . A "contested case” is defined as
      a proceeding, including rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing but the term does not include the proceedings relating to rule making other than rate-making, proceedings related to inmate disciplinary matters as defined in § 1-15-20, or student academic or disciplinary proceedings under the jurisdiction of the Board of Regents or complaints brought by students attending institutions controlled by the Board of Regents about their residency classification under §§ 13-53-23 to 13-53-41, inclusive[.]
      SDCL 1-26-1(2). Also, as we recently discussed in Bergee v. South Dakota Board of Pardons and Paroles, 2000 SD 35, ¶ 6, 608 N.W.2d 636, 640, a usual characteristic of a contested case is that it is adversarial.

      . SDCL 1-26-1(1) defines "Agency” as
      each association, authority, board, commission, committee, council, department, division, office, officer, task force or other agent of the state vested with the authority to exercise any portion of the state’s sovereignty. The term does not include the Legislature, the Unified Judicial System, any unit of local government, or any agency under the jurisdiction of such exempt departments and units unless the department, unit, or agency is specifically made subject to this chapter by statute[.]

      . SDCL 1-19A-11.1 is similar to the National Historic Preservation Act of 1966 (16 USC § 470 et seq.) which establishes the National Register of Historic Places. Property that is listed in the National Register is subject to favorable tax treatments as well as federal grants. 36 C.F.R. § 60.2(c). Whenever a listed site is the subject of a federal proposed project, the Advisory Council on Historic Preservation must be afforded "a reasonable opportunity to comment” on the project. 16 USC § 470h-2(f). These comments must be "taken into account and integrated into the decisionmaking process, [however,] the program decisions rest with the agency implementing the [project].” 36 C.F.R. § 60.2(c).


author: PER CURIAM.

text:
    2000 SD 103
    Kathy SJOMELING, Plaintiff and Appellee, v. Steve STUBER, Defendant and Appellant.
    No. 21404.
    Supreme Court of South Dakota.
    Considered on Briefs July 6, 2000.
    Decided Aug. 9, 2000.

      Robert A. Haivala, Sturgis, Attorney for plaintiff and appellee.
    Gordon D. Swanson, Hansen, Hubbard & Swanson, Sturgis, Attorneys for defendant appellant.
   PER CURIAM.

[¶ 1.] Steve-Stuber appeals the denial of a motion to modify-or set aside a protection order. We affirm.

FACTS

[¶ 2.] Stuber and Kathy Sjomeling are originally from Watertown. They began dating in late 1998 and became engaged that December. In February 1999, Sjo-meling broke off the engagement and moved to Sioux Falls. The initial break-up was apparently amicable and the parties continued to maintain a friendship and casual dating relationship for a period of time. However, as time went on, Sjomel-ing noted Stuber’s possessiveness and frustration with their relationship and became convinced that she did not want to remain with him.

[¶ 3.] On June 1, Sjomeling was staying with a friend in Watertown when Stuber made an uninvited visit to the premises. Sjomeling became angry and frustrated with Stuber and told him to stay away from her. Although Stuber left without incident, Sjomeling received a letter from him a day or two later telling her she was too much for him and that he did not want anything to do with her. Sjomeling did not respond to the first letter and received a second letter on June 19. In this letter, Stuber again advised he wanted nothing further to do with Sjomeling, but concluded by stating: “I still believe that God meant for us to be together and I know in my heart that if you choose you could treat me with respect and love me.”

[¶ 4.] Sjomeling owned the home in Wa-tertown where - Stuber was living and, in his June 19 letter, Stuber also gave notice of his intention, to move out of Sjomeling’s home by September 1. When she received the letter, Sjomeling contacted a realtor about selling the home and phoned Stuber to tell him she would be meeting the realtor at the house. Although Sjomeling told Stuber she did not care if he was present, Stuber said he would not be at home. Sjomeling then met the realtor, but Stuber returned as Sjomeling finished showing the home. Despite Stuber’s unexpected presence, there were no confrontations or incidents at the time.

[¶ 5.] Over the summer of 1999, Sjomel-ing formulated plans to move across the state to the northern Black Hills region in order to be closer to some family. As Sjomeling was beginning preparations for her move in early July, she ran into a friend of Stuber’s. Sjomeling told Stu-ber’s friend she anticipated Stuber might bother her in the Hills and that she would get a protection order if she needed to. Sjomeling later received a call from Stuber begging her not to get a protection order and telling her that he was suicidal. Stu-ber also told Sjomeling he was going through a very rough period and would need to send her cards to get through the difficult time. Sjomeling replied that if it would keep him from “blowing [his] head off’ he should send the cards.

[¶ 6.] On July 20, Sjomeling contacted Stuber to tell him she would be moving her things out of the Watertown home. Although Sjomeling told Stuber she didn’t care whether he was there or not, Stuber again indicated he would not be on the premises. Yet, when Sjomeling arrived with some friends to help her move, Stu-ber was still at home. Sjomeling packed her things and left without incident.

[¶ 7.] On July 28, Sjomeling received a brief phone call from Stuber at her sister’s residence in Sturgis. Stuber advised Sjo-meling he would be short with his next rental payment and the conversation was concluded. On August 4, Sjomeling received a card and picture from Stuber telling her he was thinking of her with his whole heart. Although these were Sjomel-ing’s last direct contacts with Stuber, he continued to communicate with various members of her family to inquire about her and express his frustrations with her and his difficulties with their break-up and, in some instances, expressing suicidal thoughts. In that vein, Stuber went so far as to plan his suicide, to procure a hose to run from his exhaust into his vehicle and to communicate with Sjomeling’s family members about his will and his intention to leave everything to Sjomeling.

[¶ 8.] Toward the end of August, Sjomel-ing’s mother and sister informed Sjomel-ing that Stuber told them he had moved to Spearfish, a community seventeen miles from Sjomeling’s residence in Sturgis, to accept a sales position covering territory in Wyoming and Montana. Stuber had also told Sjomeling’s mother and sister that he did not want Sjomeling to know he was in the area. Sjomeling became alarmed and filed a petition for an ex parte temporary protection order pursuant to the stalking statutes in SDCL ch. 22-19A. The temporary order was issued and a hearing was set for October 14 on issuance of an extended protection order. The hearing was held as scheduled and evidence was presented on behalf of both parties. In addition to the foregoing facts, additional evidence was elicited establishing that Stuber was a recovering alcoholic on probation for a felony burglary conviction. The conviction stemmed from an incident in February 1998 where Stuber became extremely intoxicated, stopped by his office, couldn’t get the key in the door and broke down his own office door and several other doors in the building.

[¶ 9.] Although the trial court abbreviated the protection order hearing for scheduling reasons, neither party requested a continuance. At the close of the hearing, the trial court entered a protection order prohibiting Stuber from contacting Sjomel-ing directly or through intermediaries for a period of one year. Approximately a month later, Stuber filed a motion to modify or set aside the protection order on the basis that the abbreviated hearing had denied him the opportunity to present evidence establishing there was no basis for entry of a protection order. A hearing on the motion was held on December 20, 1999 and, at the close of the hearing, the trial court entered findings of fact, conclusions of law and an order continuing the protection order in full force and effect. Stuber appeals.

ISSUE

[¶ 10.] Did the trial court abuse its discretion in refusing to modify or set aside Sjomeling’s protection order?

[¶ 11.] This Court has not previously set forth its standards for reviewing the issuance of protection orders or restraining orders pursuant to SDCL ch 22-19A. It has, however, recognized that such orders are a form of injunction. See State v. Pollman, 1997 SD 36, ¶ 15, 562 N.W.2d 105, 108 (temporary restraining order a form of injunction prohibiting action temporarily pending hearing on merits of permanent injunction). See also 42 Am.Jur.2d Injunctions § 327 (1969) (temporary restraining order is in effect an injunction).

Granting or denying an injunction rests in the sound discretion of the trial court. We will not disturb a ruling on injunc-tive relief unless we find an abuse of discretion. An abuse, of discretion can simply be an error of law or it might denote a discretion exercised to an unjustified purpose, against reason and evidence.

Hendrickson v. Wagners, Inc., 1999 SD 74, ¶ 14, 598 N.W.2d 507, 511 (citations omitted) (quoting Knodel v. Kassel Township, 1998 SD 73, ¶ 6, 581 N.W.2d 504, 506).

[¶ 12.] Generally, an injunction may be modified only on a showing of changed conditions. See 42 AmJur2d Injunctions § 334 (1969)(court which rendered decree has power to dissolve or modify injunction where the grounds and reasons for which the injunction was granted no longer exist by reason of changed conditions). Jurisdiction to modify protection orders issued pursuant to SDCL ch 22-19A is explicitly granted by SDCL 22-19A-14: “Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection.”

[¶ 13.] The courts’ power to modify injunctions and protection orders is also recognized in the Rules of Civil Procedure:

Rule 60(b) of the Federal Rules of Civil Procedure (which has also been adopted in several states [including South Dakota ]) provides that the court may relieve a party from a final judgment, order, or proceeding on various grounds, including the ones that “it is no longer equitable that the judgment should have prospective application,” or that there is “any other reason justifying relief from the operation of the judgment.” This rule makes it clear that the appropriate court may modify or revoke a permanent injunction as changed circumstances may dictate.

42 Am.Jur.2d Injunctions § 324 (1969)(footnote added).

[¶ 14.] In a discussion of the power to modify judgments and injunctions under Rule 60(b), it has been written that:

The fact that the rule allows relief if it is “no longer equitable” for the judgment to have prospective application is not a substitute for an appeal. It does not allow relitigation of issues that have been resolved by the judgment. Instead it refers to some change in conditions that makes continued enforcement inequitable. As the Court said in [United States v. Swift & Company, 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932) ]:
We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting.
It is clear that a strong showing is required before an injunction or other prospective judgment will be modified. Mere passage of time is not enough. Again the rule is laid down in the Swift case:
Life is never static, and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.
Because the standard is an exacting one, many applications for relief on this ground are denied. But on an adequate showing the courts will provide relief if it no longer is equitable that the judgment be enforced, whether because of subsequent legislation, a change in the decisional law, or a change in the operative facts.

11 Charles A. Wright et al., Federal Practice and Procedure § 2863 (2d ed. 1995).

[¶ 15.] Applying these principles in the instant case yields no basis for finding an abuse of discretion in the trial court’s denial of the motion to modify or set aside the protection order. As grounds for the motion, Stuber simply argued the statutory requirements for issuance of the protection order never existed. This was quite clearly an attempt to relitigate issues resolved with the entry of the protection order. In view of the above principles, the trial court quite properly rejected this attempt.

[¶ 16.] The only change of circumstances alluded to by Stuber during the motion hearing was the fact that he moved back to Watertown after issuance of the protection order. However Stuber’s past actions indicate his adeptness at making quick moves to be near or far away from Sjomel-ing. In view of this demonstrated mobility and in view of his bizarre actions, his propensity toward alcoholism and violent acts and his admitted suicidal tendencies, Stuber’s move back to Watertown fails to constitute a substantial basis for modification of the protection order. As the trial court concluded, Stuber’s actions have demonstrated a stubborn non-acceptance of the end of his relationship with Sjomel-ing. This non-acceptance is not necessarily quelled by Stuber’s return to Water-town. Accordingly, the trial court was well placed in rejecting his motion to modify or set aside Sjomeling’s protection order and did not abuse its discretion.

[¶ 17.] Affirmed.

[¶ 18.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.

      . See SDCL 15-6-60(b)(5), (6):
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

      (5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
      (6) Any other reason justifying relief from the operation of the judgment.