Advisory Opinion

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2026 S.D. 7

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

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IN RE: THE REQUEST OF SOUTH DAKOTA GOVERNOR
LARRY RHODEN FOR AN ADVISORY OPINION IN THE MATTER
OF THE INTERPRETATION OF THE SOUTH DAKOTA CONSTITUTION
REGARDING THE LIEUTENANT GOVERNOR’S POWER TO VOTE
ON FINAL PASSAGE OF LEGISLATION IN THE CASE OF A TIE WHILE
SERVING AS PRESIDENT OF THE SENATE.

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ORIGINAL PROCEEDING

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CONSIDERED ON BRIEFS
FEBRUARY 9, 2026
OPINION FILED 02/18/26
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AN OPINION REQUESTED BY HIS EXCELLENCY, LARRY RHODEN, THE
GOVERNOR OF THE STATE OF SOUTH DAKOTA, PURSUANT TO ARTICLE V,
§ 5 OF THE SOUTH DAKOTA CONSTITUTION

[¶1.] Citing Article V, § 5 of the South Dakota Constitution, Governor Larry

Rhoden asked for an advisory opinion on a question concerning the Lieutenant

Governor’s constitutional authority to cast a tie-breaking vote on final passage of a

bill or joint resolution while serving as the President of the Senate. We issued an

order directing the Governor and Senate Leadership to submit briefs to assist us in

providing the following response.

Background

[¶2.] The Governor’s question was prompted by proceedings in the Senate

related to SB 25 during the 2026 legislative session. On January 22, 2026, a vote on

the final passage of SB 25 resulted in a tie vote of 17 yeas, 17 nays, and one

excused. The one excused vote reflected the absence of a senator who had not been

present since the opening of the session on January 13, 2026. The Governor

asserted in his question that the senator is not expected to return, leaving an even

number of senators when all others are present. Due to the tie vote, Lieutenant

Governor Tony Venhuizen, acting as President of the Senate, cast a tie-breaking

vote in favor of the bill and declared it passed. A senator noticed an intent to move

to reconsider the result by which SB 25 had passed.

[¶3.] In the Senate the next day, before the motion to reconsider SB 25 was

offered, Senator Chris Karr raised a point of order. He questioned the President’s

declaration that SB 25 had passed, disputing the President’s ability to cast a tie-

breaking vote on final passage of a bill. The President provided the basis for his

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ruling. Senator Karr challenged the ruling and described his reasons. The Senate

voted to support Senator Karr’s challenge, overruling the President’s vote. This

meant that SB 25 failed. A senator then noticed an intent to reconsider the vote by

which SB 25 lost. On January 26, 2026, the vote to reconsider SB 25 was

successful, and an amendment was passed. The bill, as amended, passed by a

majority vote.

[¶4.] The same day as the passage of SB 25, Governor Rhoden presented his

request for an advisory opinion, which he framed as follows:

Does the state Constitution grant the Lieutenant Governor
while serving as the President of the Senate the authority to
cast a tie-breaking vote on final passage of a bill or joint
resolution in the Senate?

[¶5.] The two relevant constitutional provisions are Article III, § 18 and

Article IV, § 5. In pertinent part, Article III, § 18 provides that “no law shall be

passed unless by assent of a majority of all the members elected to each house of the

Legislature.” Article IV, § 5 provides that “[t]he lieutenant governor shall be

president of the senate but shall have no vote unless the senators be equally

divided.” The question presented is whether the tie-breaking power vested in the

Lieutenant Governor in Article IV, § 5 includes the power to cast a tie-breaking vote

on final passage of a bill that would become law pursuant to Article III, § 18.

Analysis and Opinion

Original jurisdiction to answer the question presented

[¶6.] The South Dakota Constitution gives the Governor “authority to

require opinions of the Supreme Court upon important questions of law involved in

the exercise of his executive power and upon solemn occasions.” S.D. Const. art. V,

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§ 5. “We have interpreted the text of Article V, § 5 disjunctively to allow advisory

opinions in instances involving the exercise of the Governor’s executive power or

those which present solemn occasions.” In re Noem (Noem II), 2024 S.D. 11, ¶ 9, 3

N.W.3d 465, 471; see also In re Daugaard, 2016 S.D. 27, ¶ 7, 884 N.W.2d 163, 166

(noting the two separate phrases in Article V, § 5 that are preceded by the term

“upon”). Because the attorney general is the executive’s legal advisor, “a

gubernatorial request for an advisory opinion by the Supreme Court is limited to

the ‘rarest instances.’” Daugaard, 2016 S.D. 27, ¶ 3, 884 N.W.2d at 165 (quoting In

re House Resol. No. 30, 72 N.W. 892, 892 (S.D. 1897)).

[¶7.] The first instance where the Governor may request an advisory opinion

is in relation to “important questions of law” involving “the exercise of [the

Governor’s] executive power.” S.D. Const. art. V, § 5. Because Governor Rhoden’s

question does not implicate his executive power, we do not respond under this

provision.

[¶8.] The second instance where the Governor may request an advisory

opinion is upon “solemn occasions.” Id. We have previously discussed eight factors

that may guide our determination of whether the question posed by the Governor is

a solemn occasion:

[1] whether an important question of law is presented, [2]
whether the question presents issues pending before the Court,
[3] whether the matter involves private rights or issues of
general application, [4] whether alternative remedies exist, [5]
whether the facts and questions are final or ripe for an advisory
opinion, [6] the urgency of the question, [7] whether the issue
will have a significant impact on state government or the public
in general, and [8] whether the Court has been provided with an
adequate amount of time to consider the issue.

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Noem II, 2024 S.D. 11, ¶ 17, 3 N.W.3d at 472–73 (quoting Daugaard, 2016 S.D. 27,

¶ 13, 884 N.W.2d at 167).

[¶9.] Utilizing those considerations, we have recognized solemn occasions

when the Governor requested various interpretations of his veto power under

Article IV, § 4. See, e.g., In re Janklow (Janklow I), 1999 S.D. 27, ¶ 1, 589 N.W.2d

624, 625; In re Janklow (Janklow II), 2000 S.D. 106, ¶ 6, 615 N.W.2d 618, 620; In re

Rounds, 2003 S.D. 30, ¶ 3, 659 N.W.2d 374, 376. To resolve these questions and

provide a complete interpretation of the relevant constitutional provisions, the

Court had to examine provisions in Article III concerning the Legislature. See, e.g.,

Janklow I, 1999 S.D. 27, ¶ 7, 589 N.W.2d at 627; Janklow II, 2000 S.D. 106, ¶ 7,

615 N.W.2d at 620–21; Rounds, 2003 S.D. 30, ¶ 3, 659 N.W.2d at 376.

[¶10.] Our most recent advisory opinions have addressed matters that

involved significant examination of Article III, § 12 concerning the prohibition of

legislators from being “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 re Noem (Noem I), 2020 S.D. 58, 950 N.W.2d 678;

Noem II, 2024 S.D. 11, 3 N.W.3d 465. Notwithstanding the necessity of examining

a provision governing the standards for serving as a legislator, the questions posed

by Governor Noem in both instances were not only questions of law involved in the

exercise of her executive power, but also solemn occasions.

[¶11.] Despite this history, the Senate Leadership urges us not to answer the

Governor’s request because they contend that doing so would cause us to invade the

Senate’s authority to “superintend its own affairs.” In support of this position, they

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rely primarily on In re Construction of Constitution, 54 N.W. 650 (S.D. 1893). In

that case, Governor Sheldon requested an advisory opinion regarding this Court’s

interpretation of the meaning and intent of Article III, § 18 of the South Dakota

Constitution. In re Constr. of Const., 54 N.W. at 651. However, the request was

initiated by a joint resolution of the Legislature, which requested Governor Sheldon

to obtain the Court’s opinion. Id. Specifically, the Legislature sought an opinion

about a question of “parliamentary procedure” involving a ruling made by the

Lieutenant Governor acting in his role as President of the Senate. Id. This Court

determined that the proffered question involved a matter that rested solely on the

judgment of the legislative branch, and that its “judgment must be final until it

shall be called in question through the usual avenue provided for testing it.” Id. at

652.

[¶12.] Using language that was perhaps broader than intended, this Court

stated that our authority to issue advisory opinions “is confined exclusively to such

questions as may raise a doubt in the executive department,—never in the

legislative. Were we to construe it otherwise, it would be liable to become the

medium of great abuse.” Id. The intended import of that language was merely that

the Court’s authority to issue advisory opinions did not extend to questions

involving the internal administration of legislative procedure.

[¶13.] Unlike the question presented in that 1893 case, Governor Rhoden’s

request is not a question posed by the Legislature requesting an interpretation of its

internal rules. See In re Constr. of Const., 54 N.W. at 651; see also Matter of

Constr. of Article III, Section 5, 464 N.W.2d 825, 827 (S.D. 1991) (declining to

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answer a request for an advisory opinion prompted by the Redistricting Preparation

Committee of the Legislature that would have effectively been an opinion for the

committee, rather than the Governor). Article III, § 9 of the South Dakota

Constitution provides, in part, that “[e]ach house shall determine the rules of its

proceedings, shall choose its own officers and employees and fix the pay thereof,

except as otherwise provided in this Constitution.” (Emphasis added.)

[¶14.] Instead, the proffered question requires the construction and

interpretation of two provisions of the South Dakota Constitution. The legislative

and executive branches differ in their interpretation of the two relevant

constitutional provisions. As the final arbiters of the meaning of the South Dakota

Constitution, this Court has a responsibility to resolve this issue.1 See S.D. Auto.

Club, Inc. v. Volk, 305 N.W.2d 693, 700 (S.D. 1981) (“[I]t is the duty of this court,

not the legislature, to make determinations of constitutional terms.”). The

Lieutenant Governor’s authority to cast a tie-breaking vote in the Senate derives

solely from the Constitution, and it cannot be restricted or enlarged by the Senate’s

internal rules. Consequently, to answer the proffered question, we need not

interpret or apply any internal legislative rules.

[¶15.] We conclude that the Governor has posed a question involving a

solemn occasion. The Governor has presented a question of law unrelated to any

1. It is because of these conflicting views that we invited briefing from the
Governor and the Senate Leadership. However, we emphasize that our
recent practice of requesting or inviting briefing from those outside of the
Governor’s office is not intended to transform advisory opinion requests into
contested adversarial proceedings. Our request in this instance, as in Noem
II, was based upon a need to develop “our understanding of the legal issue we
confront[ed].” 2024 S.D. 11, ¶ 21, 3 N.W.3d at 473.

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other issues pending before the Court. It is a question of general application

without reference to any bill or factual scenario other than the occurrence of a tie

vote in the Senate. The existence of any possible alternative remedy does not weigh

against taking up this question. Although there is no current controversy involving

a bill passed through the Senate by virtue of a tie-breaking vote cast by the

Lieutenant Governor, the issue may arise again with the current composition of the

Senate this session. If left unresolved, a lack of clarity on this issue could

negatively impact state government and the public. Perhaps more to the point, not

answering the Governor’s question would effectively allow the Senate to act as the

sole arbiter of the Lieutenant Governor’s constitutional authority to cast a tie-

breaking vote—an adjudicative role reserved uniquely for this Court. See id. The

facts and circumstances are undisputed, and the issue is ripe for our consideration.

We have adequate time to consider the issue because, although this Court has not

addressed a similar question, we have the benefit of well-developed rules of

constitutional interpretation and persuasive decisions from other jurisdictions.

Reconciling Article IV, § 5 and Article III, § 18 of the South Dakota
Constitution

[¶16.] “When interpreting constitutional text, the goal is to discern the most

likely public understanding of a particular provision at the time it was adopted.”

Betty Jean Strom Tr. v. SCS Carbon Transp., LLC, 2024 S.D. 48, ¶ 53, 11 N.W.3d

71, 90 (quoting McDonald v. City of Chicago, 561 U.S. 742, 828 (2010) (Thomas, J.,

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concurring in part)).2 The text of the relevant constitutional provisions is

preeminent in this Court’s assessment of its meaning. Doe v. Nelson, 2004 S.D. 62,

¶ 9, 680 N.W.2d 302, 305 (“The words used in the Constitution are to be taken in

their natural and obvious sense, and are to be given the meaning they have in

common use unless there are very strong reasons to the contrary.” (citation

omitted)); see also Janklow I, 1999 S.D. 27, ¶ 5, 589 N.W.2d at 626 (“When words in

a constitutional provision are clear and unambiguous, they are to be given their

natural, usual meaning and are to be understood in the sense in which they are

popularly employed.” (citation omitted)).

[¶17.] This Court has identified other principles that may guide its

interpretation of the relevant constitutional provisions. “[I]n construing a

constitutional provision, [this Court] must give regard to the whole instrument,

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

all the provisions.” S.D. Auto. Club, 305 N.W.2d at 696 (citing Bd. of Regents v.

Carter, 228 N.W.2d 621 (1975)). Similarly, this Court will not interpret the

Constitution so as to render any provision or phrase meaningless. In re McKennan’s

Est., 126 N.W. 611, 617 (S.D. 1910) (“Constitutions are supposed to be prepared

with much care and deliberation. It will not do to assume that such important

instruments contain any idle or meaningless phrases.”). In the context of statutory

2. The briefs submitted by the Governor and Senate Leadership do not rely on
contemporaneous debates to inform our interpretation of the relevant
constitutional provisions. Likewise, our review of the relevant constitutional
proceedings does not reveal any significant discussion that would aid in our
interpretation. Consequently, we draw our understanding of the intent of the
provisions from the language the drafters used.

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interpretation, we apply the principle that “where more than one statute touches

upon the same subject matter, we presume that the statute with the more specific

language ‘relating to a particular subject will prevail over the general terms of

another statute.’” Lewis & Clark Rural Water Sys., Inc. v. Seeba, 2006 S.D. 7, ¶ 63,

709 N.W.2d 824, 841 (quoting Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612

N.W.2d 600, 611). The same principle applies when interpreting two constitutional

provisions that touch on the same subject matter. See In re Est. of Colombe, 2016

S.D. 62, ¶ 28, 885 N.W.2d 350, 358 (noting that the Court applies “general rules of

statutory construction” when analyzing the constitution (citation omitted)).

[¶18.] Article III of the South Dakota Constitution relates to legislative

responsibilities and authorities. Article III, § 18 was part of the original 1889 South

Dakota Constitution and has not been amended since its adoption. This provision is

a basic expression of a bicameral legislative design: a bill must gain a majority in

both houses to become law.

[¶19.] Article IV of the South Dakota Constitution articulates executive

responsibilities and authorities. The text of Article IV, § 5, as originally stated in

the 1889 South Dakota Constitution, provided, in relevant part, “The lieutenant

governor shall be president of the senate, but shall only have a casting vote

therein.” Contemporaneous to the adoption of the 1889 Constitution, a “casting

vote” was defined as: “Where the votes of a deliberative assembly or legislative body

are equally divided on any question or motion, it is the privilege of the presiding

officer to cast one vote (if otherwise he would not be entitled to any vote) on either

side, or to cast one additional vote if he has already voted as a member of the body.”

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Casting Vote, Black’s Law Dictionary (1st ed. 1891). Article IV, § 5 took its current

form in 1972: “The lieutenant governor shall be president of the senate but shall

have no vote unless the senators be equally divided.” 1972 S.D. Sess. Laws ch. 1,

§ 2. In 1974, 1976, and 1986, there were unsuccessful attempts to repeal the

Lieutenant Governor’s voting power. 1974 S.D. Sess. Laws ch. 1, § 3; 1975 S.D.

Sess. Laws ch. 2, § 3, as amended by 1976 S.D. Sess. Laws ch. 1; 1985 S.D. Sess.

Laws ch. 2, § 2.

[¶20.] Implicit in the text of Article III, § 18 is the general principle that only

members of the Senate may ordinarily vote on the passage of a law.3 Although the

Lieutenant Governor is not an elected member of the Senate, Article IV, § 5 directs

that the Lieutenant Governor shall be the President of the Senate and explicitly

authorizes the Lieutenant Governor to vote when necessary to break a tie. Article

IV, § 5 and Article III, § 18 do not stand in conflict. Instead, the two provisions

complement one another. See S.D. Auto. Club, 305 N.W.2d at 696 (explaining that

this Court “must seek to harmonize the various provisions” and “if possible, give

effect to all” of them).

[¶21.] Article III, § 18 describes what is required before a law may be

passed—“assent of a majority of all members elected to each house of the

3. The Senate Leadership suggests that the phrase “members elected” in Article
III, § 18 confines the voting on final passage to only members elected to the
Senate, which they contend necessarily excludes the Lieutenant Governor.
However, when vacancies arise, the Governor is empowered to make
appointments to fill these vacancies. Article III, § 10. Under the Senate
Leadership’s logic, appointed members of each house would also be prohibited
from voting on the final passage of legislation because they, like the
Lieutenant Governor, have not been elected to the Senate.

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Legislature.” Article IV, § 5 is more specific and expressly addresses a discrete

situation in which a majority vote in the Senate is not obtained due to a tie. Article

IV, § 5 resolves this impasse by allowing the Lieutenant Governor to cast a vote,

thereby providing a method by which a majority can be obtained. Construing the

text of the two relevant constitutional provisions together, we conclude that the

Lieutenant Governor may cast a tie-breaking vote on the final passage of a bill.

This interpretation gives both provisions effect and meaning.

[¶22.] The suggestion that the Lieutenant Governor may not vote on the final

passage of a bill presents other interpretive problems. Article III, § 18 describes

what is required for a law to be passed, but it does not express any limit on the

voting power of the Lieutenant Governor. To find such a limitation in that section

would require us to read language into the Constitution that does not exist, which

we cannot do. In re Est. of Flaws, 2016 S.D. 60, ¶ 44, 885 N.W.2d 336, 349 (“We

‘cannot add language that simply is not there.’” (citation omitted)). Similarly,

Article IV, § 5 does not distinguish between different kinds of votes and does not

contain any language limiting the Lieutenant Governor’s vote to matters that do not

involve final passage. The only textual condition for the Lieutenant Governor’s vote

is that “the senators be equally divided.”4 Had the drafters of Article IV, § 5

4. The Senate Leadership suggests that the phrase “equally divided” in Article
IV, § 5 needs to be interpreted and/or clarified. However, we conclude that
the phrase can mean only one thing: an equal number of Senators voted for
and against a matter. The word “senators,” as used in the first sentence of
Article IV, § 5 can only refer to the senators who vote on a matter and does
not include senators who are absent or excused from voting. This is so
because the provision contemplates the senators being “divided,” and the way
the senators may be “divided” is if they vote on a matter. In our view, we are
(continued . . .)
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intended to limit the Lieutenant Governor’s tie-breaking power, they could have

indicated that intent in the text.5 But Article IV, § 5 contains no such indication,

and we cannot interpret the Constitution to include language that is not there. In

re Est. of Flaws, 2016 S.D. 60, ¶ 44, 885 N.W.2d at 349.

[¶23.] “[A]lthough we must address questions of constitutional interpretation

‘autonomously [to] develop a coherent body of South Dakota constitutional law,’ we

do look to other states for guidance.” Gilbert v. Flandreau Santee Sioux Tribe, 2006

S.D. 109, ¶ 22, 725 N.W.2d 249, 258 (second alteration in original) (citation

omitted). Other states that have addressed this question take two approaches. The

majority view holds that when a Senate vote results in a tie, or when the senators

are equally divided, the Lieutenant Governor may cast a tie-breaking vote,

regardless of whether the vote is on the final passage of a bill.6 The second view

holds that the Lieutenant Governor may not cast a tie-breaking vote on the final

passage of legislation because the Lieutenant Governor is not elected to the Senate,

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(. . . continued)
obligated to apply this plain and unambiguous text as it is written. Janklow
I, 1999 S.D. 27, ¶ 5, 589 N.W.2d at 626.

5. The Pennsylvania Constitution provides an example of such language. P.A.
Const. art. IV, § 4 (“As such, [the lieutenant governor] may vote in case of a
tie on any question except the final passage of a bill[.]” (emphasis added)).

6. The first group is typified by Advisory Opinion on Constitutionality of 1978
PA 426, 272 N.W.2d 495, 496 (Mich. 1978) (“The Lieutenant Governor may
cast a tie-breaking vote during the final consideration of a bill when the
Senate is equally divided, pursuant to [Michigan’s relevant constitutional
provisions].”); see also Op. of the Justs., 225 A.2d 481, 485 (Del. 1966); State
ex rel. Easbey v. Highway Patrol Bd., 372 P.2d 930, 939 (Mont. 1962).

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and only elected members may vote on final passage.7 The analysis employed in the

first line of cases is persuasive and consistent with our interpretation of these two

provisions of the South Dakota Constitution.

[¶24.] We answer the question submitted by the Governor in the

affirmative—the South Dakota Constitution empowers the Lieutenant Governor,

while serving as President of the Senate, to cast a tie-breaking vote in the Senate on

any matter.

Respectfully submitted this 18th day of February 2026.

____________________________________________
Steven R. Jensen, Supreme Court Chief Justice

____________________________________________
Mark E. Salter, Supreme Court Justice

____________________________________________
Patricia J. DeVaney, Supreme Court Justice

____________________________________________
Scott P. Myren, Supreme Court Justice

____________________________________________
Robert Gusinsky, Supreme Court Justice

7. The second approach is typified by Center Bank v. Department of Banking &
Finance, 313 N.W.2d 661, 663 (Neb. 1981) (“The Lieutenant Governor is
eligible to vote on all other questions before the Legislature, when it is
equally divided,” except regarding a vote on final passage of a bill.). Three
members of the court dissented and would have concluded that the lieutenant
governor was entitled to cast a tie-breaking vote on the final passage of the
bill. Id. at 232–37 (Krivosha, C.J., concurring in the result and dissenting in
part).

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