Can the SD Department of Game, Fish and Parks enter into a Walk-In Area Program hunting-access contract with a state legislator who owns hunting land? Specifically, does SD Constitution Article III, § 12 (which bars legislators from being interested in state contracts authorized by laws passed during their term) block the contract when the underlying funding statute was enacted in 1998 and last substantively amended in 2004, and the legislator was in office during the 2004 amendment?
Plain-English summary
SD has a constitutional provision (Article III, § 12) designed to prevent legislative self-dealing. The relevant portion: "...nor shall any member of the Legislature during the term for which he shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed during the term for which he shall have been elected."
In plain terms: while a legislator is in office, and for one year after, the legislator cannot be interested in a state or county contract that was authorized by a law passed during that legislator's term. The SD Supreme Court has read this strictly (Palmer v. State, Pitts v. Larson, Asphalt Surfacing, Norbeck I, Norbeck II). If the provision is violated, the contract is "wholly illegal, void, and against public policy" (Norbeck I).
In 2008, SD Department of Game, Fish and Parks staff identified a tract of private land that would be a good addition to the Walk-In Area Program (a public-hunting-access program where landowners are paid for allowing public hunting on their land). The landowner happened to be a state legislator. The Department asked the AG whether the contract would violate Article III, § 12.
The Walk-In Area Program was funded through SDCL 41-2-34.2, which establishes a $5 surcharge on hunting licenses, deposits the revenue in the "sportsmen's access and landowner depredation fund," and continuously appropriates the fund for hunting-access leases (50%) and landowner depredation programs (50%). The continuous appropriation was originally enacted in 1998 (1998 S.D. Sess. Laws ch. 253). It was amended in 2001 (sunset extension), 2004 (sunset repealed plus furbearer exception added), and 2007 (furbearer exception expanded to nonresidents).
The interpretive question: when Article III, § 12 says "any law passed during the term for which he shall have been elected," does that mean (a) the specific two-year legislative term when the law was actually enacted, or (b) any term the legislator has served (perhaps consecutively)?
The AG took position (a): the term when the actual authorizing legislation was passed. The Walk-In Area authority was last substantively amended in 2004 (the 2007 grammatical change to the furbearer exception was characterized as not substantive). The relevant term for Article III, § 12 was therefore the 2003-2004 SD legislative term. Adding the one-year post-term restriction, the contract prohibition would have expired on the second Tuesday in January 2006. A 2008 contract was after that date, so it was permissible.
The AG flagged two caveats:
First, neither the SD Supreme Court nor (to the AG's knowledge) any SD circuit court had specifically defined "during the term for which he shall have been elected" for Article III, § 12 purposes. A court could read the phrase to mean any term during which the legislator served consecutively. Under that broader reading, a legislator who served continuously from 2004 through 2008 would still be barred until one year after leaving office. The AG acknowledged the risk: "Though the courts of this state may disagree, it is my opinion..."
Second, the 2008 Legislative Code of Conduct (Joint Rule 1B-2) contained a conflicts-of-interest provision. The legislator should consider it. The AG expressed no opinion on the Code's applicability because the Legislative Code of Conduct is within the Legislature's exclusive enforcement province (not the AG's).
The opinion's bottom line: on the facts presented, and assuming the AG's reading of "during the term" survives any court challenge, the Department could enter the Walk-In Area contract with the legislator. The contract would be for 100 acres over a 5-year term beginning July 1, 2008, with maximum payment of $600 per hunting season.
Currency note
This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SD Constitution Article III, § 12 has been the subject of additional litigation since 2008 and the SD Supreme Court may have clarified the meaning of "during the term." SDCL 41-2-34.2 has also been amended. Any present-day Article III, § 12 question requires fresh research.
What the opinion meant at the time
For the SD Department of Game, Fish and Parks in 2008, the opinion provided a green light (with caveats) to enter the contract. The Department could move forward with the 100-acre, 5-year Walk-In Area enrollment with the legislator. The Department had a defensible reading of Article III, § 12 supporting the contract.
For the legislator involved, the opinion provided a path to participate in the public-hunting-access program. The legislator could enroll the land, receive the $1-per-acre access payment plus the $5-per-acre habitat payment, and the contract was not constitutionally void on the facts as presented. The legislator still had to consider the Legislative Code of Conduct.
For SD legislators with private landholdings generally, the opinion offered general guidance. State contracts authorized by old laws (more than the legislator's current term plus one year prior) were not blocked by Article III, § 12. State contracts authorized by laws passed during a legislator's current term, or within one year prior, remained blocked.
For state agencies entering contracts with legislators, the opinion provided a framework: identify when the authorizing law was passed, identify the term of that legislative session, add one year, and determine whether the current date is within the prohibited window. Only contracts within the prohibited window are blocked.
For SD government-ethics observers, the opinion was a measured reading of Article III, § 12. The AG declined to read the prohibition broadly enough to cover all contracts touching a legislator during any term of service. That left room for legitimate state contracts where the underlying authority predated the current legislator's term.
Common questions
Q: What is the Walk-In Area Program?
A: A SD Department of Game, Fish and Parks program that pays private landowners for allowing public walk-in hunting access on their land. The program's emphasis is on land enrolled in the federal Conservation Reserve Program. Public hunters can hunt on enrolled land without prior landowner permission during hunting seasons.
Q: What does Article III, § 12 of the SD Constitution prohibit?
A: It prohibits legislators (and for one year after their term) from being interested, directly or indirectly, in any contract with the state or any county that was authorized by a law passed during the legislator's term.
Q: Why is the timing of the underlying law important?
A: Article III, § 12's prohibition is tied to laws passed during the legislator's term. A contract authorized by a law passed before or after the legislator's term is not blocked by the constitution. The AG opinion focuses on the time of the underlying legislative authorization.
Q: What if a legislator served multiple consecutive terms?
A: This is the open question the AG flagged. The AG's opinion reads "during the term for which he shall have been elected" as the specific term during which the authorizing law was passed, not any term the legislator served. A court could read it more broadly. The opinion explicitly acknowledges this risk.
Q: Did the 2007 grammatical change to SDCL 41-2-34.2 count as a substantive amendment?
A: The AG opinion treats it as not substantive. The 2007 change expanded the furbearer exception to nonresidents and made minor grammatical changes. The AG identifies the 2004 amendment (which repealed the sunset and added the furbearer exception) as the last substantive authorizing action.
Q: What is the Legislative Code of Conduct?
A: The SD Legislature's internal ethics rules, adopted as Joint Rules in 2008 (chapter 1B). Rule 1B-2 addresses conflicts of interest. The Code is enforced by the Legislature, not by the AG or the courts. The 2008 AG opinion expressly does not opine on the Code's applicability to the proposed contract.
Q: What does "directly or indirectly interested" mean for Article III, § 12?
A: Broad. Pitts v. Larson and earlier cases (Asphalt Surfacing, the Norbeck cases) have held that ownership interest in a company contracting with the state suffices. The AG opinion notes that there is no dispute the proposed Walk-In Area contract would directly interest the legislator. The issue was timing, not the existence of interest.
Q: What happens if a contract violates Article III, § 12?
A: Under Norbeck I, the contract is "wholly illegal, void, and against public policy, and cannot be enforced in whole or in part on any theory of any kind." The state cannot save the contract through ratification or by paying for value received. The prohibition is absolute.
Q: Could the legislator participate in some other GFP program?
A: The opinion analyzes only the Walk-In Area Program's authorizing statute. Other GFP programs would have their own authorizing statutes, and each would need a separate Article III, § 12 timing analysis.
Background and statutory framework
Article III, § 12 of the SD Constitution is part of a broader anti-corruption framework drafted at statehood. The provision targets self-dealing by legislators who could otherwise pass laws and then benefit personally from contracts authorized by those laws. The SD Supreme Court has read it strictly to preserve the prohibition's anti-corruption purpose (Palmer v. State (1898), Pitts v. Larson (2001)).
The seminal case is Palmer, where the court held Article III, § 12 prohibits the state from employing state legislators. The court has applied the prohibition to highway repair contracts where the legislator owned the contracting company (Asphalt Surfacing, 1986), to railroad commissioner positions (Palmer, 1898), and to state-board contracts with corporations in which a legislator was a stockholder (Norbeck I and II, 1913).
Pitts v. Larson (2001) confirmed the strict reading and held that Article III, § 12's prohibition extends to "any contract with the state," including the General Appropriation Bill. The opinion in this case quotes Pitts directly.
Three conditions must be present for an Article III, § 12 violation:
- A contract with the state or a county.
- The legislator must be directly or indirectly interested.
- The contract must be authorized by a law passed during the legislator's term.
The first two were satisfied for the proposed Walk-In Area contract. The third was the interpretive question.
The Walk-In Area Program's funding authority is SDCL 41-2-34.2, originally enacted in 1998. The 1998 enactment imposed a $5 license surcharge, established the sportsmen's access and landowner depredation fund, and continuously appropriated 50% of the fund for hunting access leases and 50% for landowner depredation. The original enactment included a January 1, 2002 sunset.
The Legislature kept extending. The 2001 session extended the sunset to January 1, 2005. The 2004 session repealed the sunset entirely and added a furbearer exception. The 2007 session expanded the furbearer exception to nonresidents and made minor grammatical changes.
The AG read 2004 as the last substantive amendment to the authorizing law. The 2007 change was minor. The 2003-2004 SD legislative term (in which the 2004 amendment was passed) was therefore the relevant term for the Article III, § 12 analysis.
The one-year post-term restriction extended through the second Tuesday in January 2006 (one year after the end of the 2005 SD legislative session, which was the second half of the 2003-2004 term's interim work). After that date, contracts under the SDCL 41-2-34.2 authority were not blocked by Article III, § 12 even for legislators who had been in office in 2004.
The legislator at issue had been in office in 2004. By 2008, the prohibition window had closed (per the AG's reading). The contract was permissible.
The AG was careful about the limits. The reading of "during the term for which he shall have been elected" as the specific term of authorizing legislation (rather than any term of service) was an interpretive choice the courts had not directly addressed. The AG flagged this risk explicitly. A court that read the phrase to cover any term of service would reach the opposite result for legislators continuously in office from 2004 through 2008.
The Legislative Code of Conduct was a parallel restriction that the AG declined to opine on. Joint Rule 1B-2 required each legislator to "avoid any conflict of interest which would interfere with their duties and responsibilities." Whether the proposed Walk-In Area contract created such a conflict was within the Legislature's exclusive enforcement province.
Citations and references
Constitutional provisions:
- S.D. Const. art. III, § 12 (legislator contract prohibition)
Statutes:
- SDCL 41-2-34.2 (sportsmen's access and landowner depredation fund)
- SDCL 41-6-19.3 (resident farmer/rancher limited license)
- 1998 S.D. Sess. Laws ch. 253 (original enactment)
- 2001 S.D. Sess. Laws ch. 229 (2001 sunset extension)
- 2004 S.D. Sess. Laws ch. 261 (2004 substantive amendment)
Cases:
- Palmer v. State, 11 S.D. 78, 75 N.W. 818 (1898)
- Pitts v. Larson, 2001 S.D. 151, 638 N.W.2d 254
- Asphalt Surfacing Co. v. South Dakota Dep't Transp., 385 N.W.2d 115 (S.D. 1986)
- Norbeck I, 32 S.D. 189, 142 N.W. 847 (1913)
- Norbeck & Nicholson Co. v. State (II), 33 S.D. 21, 144 N.W. 658 (1913)
Legislative rules:
- SD Joint Rules, chapter 1B (2008 Legislative Code of Conduct)
- Joint Rule 1B-2 (compliance with conflict-of-interest requirements)
Source
Original opinion text
STATE OF SOUTH DAKOTA
OFFICE OF THE ATTORNEY GENERAL
April 28, 2008
Secretary Jeffrey R. Vonk
Department of Game, Fish and Parks
523 E. Capitol Ave.
Pierre, SD 57501
OFFICIAL OPINION NO. 08-03
RE: Legality of a Hunting Access and Habitat Contract With a State Legislator
Dear Secretary Vonk:
You have requested an opinion from this office based upon the following factual situation.
FACTS:
Staff of the Department of Game, Fish and Parks have been in contact with a state legislator regarding participation in the Department's Walk-In Area Program. The land was inspected and it was determined that the land would be a good addition to Department's program. During these discussions, a question arose whether a contract between the Department and the state legislator would violate the provisions of Article III, § 12 of the South Dakota Constitution. In order to resolve this question, background information regarding the authorizing legislation, the program and contract are provided.
In 1998, the South Dakota Legislature enacted an act to establish a license surcharge and fund for wildlife depredation and hunter access purposes. SL 1998, Ch. 253 provided as follows:
Section 1. The Game, Fish and Parks Commission shall impose a surcharge in the amount of five dollars on each classification of hunting licenses issued by the Department of Game, Fish and Parks with the exception of resident predator/varmint licenses, migratory bird certification permits, youth deer licenses, and youth small game licenses. Revenue from the surcharge shall be deposited in a special fund known as the South Dakota sportsmen's access and landowner depredation fund, which is hereby established. Money in the fund is continuously appropriated for purposes of the Act. Fifty percent of the money in the fund shall be available to landowners pursuant to the procedures and amounts to be established in rules promulgated by the commission pursuant to chapter 1-26 for purposes of providing hunting access on the landowners' land and for wildlife depredation and damage management programs. Fifty percent of the money in the fund shall be available for purposes of acquiring free public hunting access by lease agreement.
Section 2. The provisions of this Act do not apply to any resident farmer or rancher limited license issued pursuant to § 41-6-19.3.
Section 3. The effective date of this Act is January 1, 1999.
Section 4. This Act is repealed on January 1, 2002.
During the 2001 legislative session, the Legislature enacted SL 2001 Chapter 229 which extended the sunset provision in § 4 of the 1998 legislation through January 1, 2005. In 2004, the Legislature enacted SL 2004, Chapter 261 which repealed the sunset provision in the 2001 legislation and added resident furbearer and one-day small game licenses to the exceptions from the surcharge. Finally, during the 2007 legislative session, the Legislature expanded the furbearer exception to include non-residents and made minor grammatical changes to carry out that effect. The current version of the legislation is found in SDCL 41-2-34.2.
The Department has developed various hunting access programs in carrying out its statutory charge of acquiring free public hunting access by lease agreement. One of these programs is the Walk-In Area Program. The purpose of this program is to provide public hunting access to private lands with the emphasis on gaining hunter access to land enrolled in the Conservation Reserve Program across South Dakota. Under the program, the Department pays a landowner one-dollar per acre for each hunting season plus an additional five-dollars per acre for permanent habitat left undisturbed during the contract year. The land enrolled in the program is available for public walk in hunting without prior landowner permission during each hunting season.
The proposed contract between the state legislator and the Department is for one hundred acres and for a term of five-years beginning July 1, 2008 and ending June 30, 2012. Under this contract, the state legislator would receive a maximum total payment of $600 during each hunting season, assuming that the acres remained in permanent habitat that is not mowed, grazed, or otherwise disturbed for the duration of the growing season, including the period prior to and during each hunting season.
Based upon the above facts and for the reasons set forth below, it is my opinion that Article III, § 12, of the South Dakota Constitution would not prohibit the Department from entering into the proposed hunting access contract with the state legislator.
The relevant portion of Article III, [§] 12 provides:
...nor shall any member of the Legislature during the term for which he shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed during the term for which he shall have been elected.
The purpose of this contract prohibition was first addressed by the South Dakota Supreme Court in Palmer v. State, 11 S.D. 78, 80-81, 75 N.W. 818-819 (1898);
The language of the constitution is plain. Its meaning cannot be mistaken. The purpose of the provision is apparent. It is intended to preclude the possibility of any member deriving directly or indirectly, any pecuniary benefit from legislation enacted by the Legislature of which he is a member.... It is intended to remove any suspicion which might otherwise attach to the motives of the members who advocate the creation of new offices or the expenditure of public funds.
The South Dakota Supreme Court, in its most recent application of Article III, § 12, Pitts v. Larson, 2001 S.D. 151, ¶ 14, 638 N.W. 2d 254, 257-58 stated:
This Court has strictly interpreted the language of Article III § 12. Asphalt Surfacing Co. v. South Dakota Dep't Transp., 385 N.W.2d 115, 117 (SD 1986) (holding that a member of the legislature could not be awarded a highway repair contract because he was the president of the company to which the contract was awarded). See also Palmer, 11 S.D. 78, 75 N.W. 818 (1898) (holding that a member of the legislature that authorized an appropriation for the railroad commissioners could not be paid for his employment with the railroad commissioners); Norbeck I, 32 S.D. 189, 142 N.W. 847 (1913) (holding that a contract between the state board of regents and a corporation is void because a member of the legislature which authorized the contract is also a stockholder in the corporation); Norbeck & Nicholson Co. v. State (II), 33 SD 21, 144 N.W. 658 (1913) (same)). In Palmer, this Court held that Article III § 12 prohibits the state from employing state legislators. 75 N.W. at 819. In Asphalt Surfacing, this Court determined that the prohibition contained in Article III § 12 was intended to be broad in scope. 385 N.W.2d at 118. Specifically, this broad prohibition extends to any contract entered into with the State, including the General Appropriation Bill. Id. (recognizing language of Article III § 12 applies to "any contract with the state"). When Article III § 12 is violated, the "contract is wholly illegal, void, and against public policy, and cannot be enforced in whole or in part on any theory of any kind." Norbeck I, 142 N.W. at 848.
As can be seen by the latest pronouncement, the Supreme Court has strictly interpreted this provision. However, on its face, the constitutional prohibition does not cover all contracts or payment of state funds to state legislators. To violate the provisions of Article III, § 12, three conditions must be present. First, there must be a contract with the state or a county. Second, the contract must be one that a legislator is directly or indirectly interested in. Third, the contract must be authorized by a law passed during the legislator's term. Further, the contract prohibition is limited to the legislator's term and one-year thereafter.
In this case, there is no dispute that there would be a contract with the state which the legislator is directly interested in. The question is whether the proposed contract is authorized by a law passed during the legislator's term. Normally this is not an issue, because, under Asphalt Surfacing, the prohibition extends to state contracts funded through the annual general appropriations bill. Here, however, the contract would be funded under a continuous appropriation authority that was enacted into law in 1998, with the last substantive action to this authorization taking place during the 2004 session when the sunset provision for the surcharge was repealed.
It is my understanding that the legislator with whom the Department is proposing to contract was a member of the Legislature in 2004 when the sunset repealer was passed. Thus, the dispositive question is whether the phrase "term for which he has been elected" as used in Article III, § 12 means the length of time that the legislator is in service, or the term during which the legislation in question was enacted. Though the courts of this state may disagree, it is my opinion that Article III, § 12's use of the phrase "authorized by any law passed during the term for which he shall have been elected" was only intended to mean the term during which the legislation at issue was enacted. In this case, since the last authorizing law was passed in 2004, the relevant term would be from 2003-2004. Under these circumstances, adding the one year post-term requirement, the constitutional prohibition period would have ended on the second Tuesday in January, 2006. Therefore, it is my opinion that the current proposed contract between the Department of Game, Fish and Parks and the Legislator will not violate Article III, § 12's contract prohibitions, since it will be entered into after that date.
In providing you this opinion, I must add two caveats. First, neither the South Dakota Supreme Court, nor to my knowledge a circuit court, has specifically defined the phrase "during the term for which he shall have been elected" for purposes of the contract prohibition in Article III, § 12. A court may interpret the phrase to mean as long as a person serves consecutive terms as a state legislator. Second, though it does not involve a constitutional violation that would render the contract void, the Legislature, during the 2008 legislative session adopted the Legislative Code of Conduct. See Rules of the South Dakota Legislature, Joint Rules, chapter 1B. One of the code of conduct provisions addresses conflicts of interest and provides as follows:
1B-2 Compliance with specified requirements. Each legislator will comply with all Constitutional and statutory requirements regarding conflicts of interest. Legislators will timely file all required disclosure statements including Statements of Organization, Campaign Finance Reports and Statements of Financial Interest. Legislators must also avoid any conflict of interest which would interfere with their duties and responsibilities as legislators, interfere with the exercise of their best judgment in support of the State of South Dakota or create an improper personal benefit.
I am expressing no opinion regarding the applicability of this provision or the ramification of a violation since application of the Legislative Code of Conduct is within the exclusive province of the Legislature. I do, however, raise the issue so that the legislator may consider it in making a final determination of whether to contract with the Department.
Very truly yours,
Larry Long
ATTORNEY GENERAL
LL/JPH/lde