(dissenting).
[¶ 21.] I respectfully dissent. Pourier should be allowed to amend his refund claims to allow his OST member customers as a class of fellow claimants. It was, after all, Pourier who challenged the constitutionality of the motor fuel tax and who, under protest, collected and paid the unconstitutional tax since 1999. It is certainly not a stretch of our legal procedures to also allow him to join the claims of those customers that had to pay the unconstitutional tax. The State should not be able to retain $1.6 million, or over $3 million with interest, of illegally collected taxes through stonewalling and procedural maneuvering.
[¶ 22.] Sovereign immunity, limited or otherwise, cannot shield the State because the State’s collection of the tax was unconstitutional. See SDDS, Inc., 2002 SD 90, ¶ 20, 650 N.W.2d at 8-9. Construing the statutory scheme as a limited waiver of immunity defeats any meaningful remedy for the OST member customers who were required to pay the unconstitutional motor fuel taxes.3 While states may enact statutes to ensure procedural protections are afforded for wrongfully collected taxes, see 16D CJS Constitutional Law § 2060 (2009) (citing Williams v. State, 156 Vt. 42, 589 A.2d 840 (1990)), those statutes must still afford a meaningful remedy. See McKesson Corp., 496 U.S. at 50,110 S.Ct. at 2257 (citing Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976)).
[¶23.] It is unreasonable to conclude that the OST member customers in this case had access to a meaningful remedy. The relevant statutes required them to provide detailed fuel receipts for their fuel purchases from over ten years ago. These purchases were predominantly under ten dollars and were paid in cash. Not surprisingly, no other OST member customers have received refunds as a result of these extreme statutory requirements. Consequently, the vast majority of OST member customers had a remedy only in theory. In practice, under the majority’s construction of the law, no meaningful remedy existed. This lack of a meaningful remedy stands in opposition to the general requirements of the Due Process Clause.
[¶ 24.] Furthermore, the statutory language does not preclude a class action claim. SDCL 1-26-32.1’s incorporation of the rules of civil procedure in Title 15 of the Code would allow a class action. Interpreting the statutory use of the singular, ie. “a taxpayer” and “a consumer,” as a prohibition against class action lawsuits strains the plain meaning of the statutes. Class actions are allowed under our statutes as follows: “one or more members of a class may sue or be sued as representative parties on behalf of all.... ” SDCL 15-6-23(a). Read together, the statutes would permit “a taxpayer” or “a consumer” as “one member ... of a class” to claim as a representative party on behalf of the entire class.
*609[¶ 25.] The Georgia Supreme Court in Barnes addressed the availability of a class action claim in a similar scenario. 276 Ga. 449, 578 S.E.2d 110, superseded by statute, Ga.Code Ann. § 48-2-35(b)(5) (2009), as recognized in Sawnee Elec. Membership Corp. v. Ga. Dep’t of Revenue, 279 Ga. 22, 25 n. 1, 608 S.E.2d 611, 614 n. 1 (2005).4 In Barms, the court analyzed a Georgia statute which provided the procedure for bringing an action for a tax refund. Like South Dakota’s statutes, Georgia, class actions were not specifically mentioned or permitted by Georgia’s statutes. The Georgia Supreme Court, however, overruled Henderson and its prior holding that sovereign immunity must be waived by the express terms of the statute. The court went on to state that “when a statute provides the right to bring an action for a tax refund against a governmental body, that statute provides an express waiver of immunity and establishes the extent of the waiver (the amount of the refund), but does not purport to provide for the form of action to be utilized.” Barnes, 276 Ga. at 452, 578 S.E.2d at 113. The court further noted that “[b]y participating as a plaintiff in a class action that includes a claim for a tax refund, a taxpayer is unquestionably bringing an action for a refund, which is what the [Georgia] statute permits.” Id.
[¶ 26.] This is the precise situation faced by this Court. The amount of the State’s obligation to be repaid does not change by permitting a class action, only the form by which it is to be repaid. The Georgia Supreme Court’s analysis and recognition of this fact upholds both the spirit of tax refund statutes as well as the constitutional requirements of the Due Process Clause by permitting class actions to provide a meaningful remedy. If we were to adopt the same reasoning, the OST member customers adversely affected by the inappropriate collection of motor fuel taxes would be afforded a meaningful remedy by not being procedurally barred from recovery.
[¶ 27.] SEVERSON, Justice, joins this dissent.. While Pourier did receive his personal motor fuel tax refund, approximately $18,000, the amount he received was not significant in light of the total amount collected by the State, approximately $1.6 million. It is the much greater amount not repaid by the State that is the subject of my dissent.
. The majority cites and discusses Lick. 285 N.W.2d at 600. Lick cites Henderson, 229 Ga. 876, 195 S.E.2d 4, to support the proposition that "[s]everal jurisdictions have likewise held that class actions cannot be maintained to recover taxes from the State in the absence of a specific statute authorizing it.” Lick, 285 N.W.2d at 600. Henderson, however, was explicitly overruled by Barnes, 276 Ga. 449, 578 S.E.2d 110.