#23949-a-MILLER, Retired Justice
2006 SD 112
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
DEB ANDERSON, Petitioner and Appellant,
v.
THE CITY OF TEA, SOUTH DAKOTA,
A Municipal Corporation, JOHN M.
LAWLER, as Mayor of the City Of
Tea and THE CITY COUNCIL MEMBERS,
ERIC LEVAN, HERMAN OTTEN, DEANNA
ERNSTER, SCOTT CZEPULL, SIDNEY
MUNSON AND JO NILES, Respondents and Appellees.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
LINCOLN COUNTY, SOUTH DAKOTA
* * * *
HONORABLE BRADLEY G. ZELL
Judge
* * * *
THOMAS H. FRIEBERG
KATHRYN A. RITTER, Intern
Frieberg, Nelson & Ask, LLP
Beresford, South Dakota Attorneys for petitioner
and appellant.
JASON M. HARRIS of
Danforth & Meierhenry, LLP
Sioux Falls, South Dakota Attorneys for respondents
and appellees.
* * * *
CONSIDERED ON BRIEFS
ON AUGUST 28, 2006
OPINION FILED 12/06/06
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MILLER, Retired Justice
[¶1.] In this appeal we affirm the circuit court and hold that petitions
seeking to bring a municipal ordinance to a public vote do not conform to statutory
requirements.
[¶2.] Deb Anderson objected to a resolution adopted by the City of Tea that
required the construction of sidewalks along various streets and avenues in the
municipality. She and others circulated petitions among the residents of Tea
attempting to refer the resolution to a public vote. The petitions were filed with the
city finance officer, but rejected for failure to conform with statutory formatting
guidelines. Anderson requested a writ of mandamus from the circuit court seeking
to compel the City to conduct the election. The circuit court, following a hearing,
denied Anderson’s request “because the Petitions were not self-contained as
required by South Dakota law.” Anderson appeals. We affirm.
Facts and Procedural History
[¶3.] The parties stipulated to the following basic facts.
• On February 7, 2005, the City of Tea, acting through its
Common Council adopted Resolution No. 05-02-03 entitled
Resolution of Necessity—Resolution Declaring the Necessity
to Construct Sidewalk on Various Streets and Avenues in
Tea, South Dakota and Assessing the Cost of Each Lot or
Tract of Land Benefiting Thereby (hereinafter “Resolution”).
• Resolution No. 05-02-03 was published in the Tea Champion
on February 23, 2005.
• Within twenty (20) days of the publication of Resolution No.
05-02-03, Anderson with assistance of legal counsel and in
conjunction with other qualified electors of the City of Tea,
prepared, circulated, and signed petitions protesting the
passage of the resolution and petitioning that the resolution
be submitted to a vote of the qualified and registered electors
of the City of Tea for their approval or rejection, as provided
by law.
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• The signatures contained a sufficient number of qualified
voters in order to require a referendum election on the
resolution of necessity.
• On March 14, 2005, all of the petitions so circulated were
filed with the finance officer for the City of Tea.
• Based upon advice of the Secretary of State and legal
counsel, it was determined that the referendum petitions did
not conform to the requirements of State Law.
[¶4.] The appeal raises the following issue:
Did the circuit court err in determining that the
referendum petitions did not conform to South Dakota law?
Standard of Review
[¶5.] Our rules of statutory construction are as follows:
Questions of law such as statutory interpretation are reviewed
by the Court de novo. . . . The purpose of statutory construction
is to discover the true intention of the law which is to be
ascertained primarily from the language expressed in the
statute. The intent of a statute is determined from what the
legislature said, rather than what the courts think it should
have said, and the court must confine itself to the language
used. Words and phrases in a statute must be given their
plain meaning and effect. When the language in a statute
is clear, certain and unambiguous, there is no reason for
construction, and the Court’s only function is to declare the
meaning of the statute as clearly expressed. Since statutes
must be construed according to their intent, the intent must
be determined from the statute as a whole, as well as enactments
relating to the same subject. But, in construing statutes together
it is presumed that the legislature did not intend an absurd
or unreasonable result. When the question is which of two
enactments the legislature intended to apply to a particular
situation, terms of a statute relating to a particular subject
will prevail over the general terms of another statute.
Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612 NW2d 600, 611 (quoting Moss v.
Guttormson, 1996 SD 76, ¶10, 551 NW2d 14, 17 (citing U.S. West Communications,
Inc. v. Public Util. Comm’n, 505 NW2d 115, 122- 23 (SD 1993) (citations omitted)).
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Analysis and Decision
[¶6.] The sole issue before this Court is whether each page of a municipal
referendum petition must be signed and verified by the circulator. Anderson argues
that the circuit court erred when it determined that the referendum petitions were
not self-contained because only the last, rather than each individual page, contained
the required verification. She argues that only SDCL 9-20-9 applies to municipal
referendums and that SDCL 2-1-9, which requires that each page of a petition must
be verified, is not applicable to municipal election petitions.
[¶7.] This Court previously addressed the issue of verification in two key
cases. First, in Corbly v. City of Colton, 278 NW2d 459 (SD 1979), the Court
analyzed SDCL 9-20-9, SDCL 2-1-10 and SDCL 2-1-11, as they read at the time, to
determine if a referendum petition can be valid without a verifying affidavit by the
circulator.
[¶8.] In examining the issue of verification, this Court held that
“[v]erification, as used in connection with referendum petitions, means the swearing
under oath by the circulator that he or she has personally circulated the petition
and attests to the validity of the signatures.” Id. at 461 (citing Nist v. Herseth, 270
NW2d 565 (SD 1978)). “Requirements for circulation and verification of referendum
petitions, whether statutory or administratively adopted, are substantial in
character and not merely requirements of form.” Id. (citing Nist, 270 NW2d 565
(SD 1978); Headley v. Ostroot, 76 SD 246, 76 NW2d 474 (1956)). Therefore,
verification requirements must “have been substantially complied with in order to
render the petition valid.” Id.
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[¶9.] In reiterating that the provisions of SDCL chapter 2-1 are applicable to
municipal elections, we held in Baker v. Jackson, 372 NW2d 142 (SD 1985),
that SDCL 2-1-9 and 2-1-10 are likewise applicable to the process of circulating
municipal referendum petitions. 1 The issue in Baker was almost identical to the
question before us today. The Baker court was asked to determine whether every
single sheet of a fastened, multiple-page referendum petition must contain a correct
heading and a properly notarized verification statement. Id. at 144.
[¶10.] In answering that question, this Court’s task was to examine the
referendum petition “in light of all the dictates promulgated by the applicable
constitutional provisions, legislative statutes and administrative rules, rather than
to read the requirements of each in isolation.” Id. at 145. We then analyzed SDCL
9-20-9, 9-20-10, 2-1-9 and 2-1-10. Id. At the time, SDCL 2-1-9 provided:
It shall not be necessary that one paper shall contain all the
signatures, but a single petition may be made up of one or
more papers, each having the requisite heading. Separate
papers, in proper form and duly signed, may, before filing,
be bound together and shall be regarded as one petition and
shall be sufficient if the aggregate number of signatures upon
all is not less than the number required by this chapter. Blank
lines upon additional sheets securely fastened to a top sheet,
having the prescribed heading, may be used in obtaining
signatures, and shall be regarded, together with the top sheet
having the proper heading, as one paper.
1. In Baker, we also held that under the South Dakota Constitution Article III,
§ 1, both legislative and administrative acts are subject to referendum
election. 372 NW2d at 148-49. This part of the decision in Baker was later
abrogated by legislation excluding administrative decisions from the
referendum process. See 1986 SD Laws ch 73, §§ 1-3 codified at SDCL 9-20-
18, 9-20-19 and 7-18A-15.1 respectively.
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SDCL 2-1-9 (amended 1986). In considering that statute, as well as SDCL 2-1-10
and ARSD 5:02:08:00(3), we concluded in Baker that a municipal referendum
petition could be valid in the following three forms:
First, a valid municipal referendum petition may consist of
separate sheets that [are] circulated individually if every such
sheet contains an appropriate heading. All such sheets, which
[are] circulated by a particular circulator, can then be bound
together and verified by attaching a properly notarized
verification statement as a last page to the bound sheets.
Such a petition comports with the dictates of SDCL 2-1-9,
SDCL 2-1-10, and ARSD 5:02:08:00(3). Second, a valid
municipal referendum petition may consist of a first page
containing the appropriate heading which is securely fastened
to other pages containing blank lines but no headings. This
petition can then be verified by attaching a properly notarized
verification statement, by the person who circulated that
particular petition, to the end of the petition. This complies
with the statutory requirements set forth in SDCL 2-1-9 and
SDCL 2-1-10 and constitutes a valid petition. Finally, as
appellant contends, every single sheet of a valid municipal
referendum petition can have the appropriate heading and
a properly notarized verification statement. This, however,
is not required if the petition is in one of the above forms and,
of course, would be required if every sheet is circulated by a
different person.
Id. at 145-46.
[¶11.] In Baker, we again discussed the importance of the statutory
verification requirements of SDCL 2-1-10.
SDCL 2-1-10 requires the circulator to make and attach to the
petition an affidavit. This affidavit establishes the genuineness
of the signatures on the petition, Morford v. Pyle, 53 SD 356,
360, 220 NW 907, 909 (1928), and by attaching the verification
statement to the end of the petition, the circulator is attesting
to the genuineness of all the signatures on the entire petition.
This requirement, coupled with the heading requirements of
the . . . two forms [that constitute valid multi-page petitions
when circulated by one individual], is sufficient to prevent
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the inclusion or introduction of petition sheets . . . circulated by
ghost-circulators as was the case in Nist v. Herseth, 270 NW2d
565 (SD 1978).
Id. at 146. Therefore, based solely on our prior holding in Baker, it would appear
that Anderson’s petitions would be valid. Moreover, our statutes have traditionally
indicated that referendum petitions are to be liberally construed as being in
compliance with the law. See SDCL 2-1-11 (1939); 9-20-10 (1957) (formerly SDC §
45.1012 (1939)). Since our decision in Baker, however, it is apparent from
amendments made to the statutes that the legislature intended to increase the
stringency of petition verification requirements.
[¶12.] In addition to SDCL chapters 9-20 and 2-1, the provisions of SDCL
chapters 12-1 2 and 9-13 3 are also applicable to municipal referendum elections. In
defining petition, SDCL 12-1-3(8) states, “If multiple sheets of paper are necessary
to obtain the required number of signatures, each sheet shall be self-contained and
separately verified by the circulator[.]” SDCL 12-1-3(8) (2000). SDCL 9-13-11
provides, “[A] petition may be composed of several sheets, which shall have identical
headings and shall be verified under oath by the persons circulating it, attesting the
legality of the signatures thereon.” SDCL 9-13-11 (1990). SDCL 2-1-9, amended
2. SDCL 12-1-2 provides:
The provisions of this title apply to . . . municipal . . . elections unless
otherwise provided by the statutes specifically governing their
elections or this title.
3. SDCL 9-20-14 provides:
The elections provided for in this chapter shall be governed by the
provisions of chapter 9-13. . . .
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since we cited it in Baker, now provides, “A single petition may be made up of one or
more papers, EACH having the requisite heading and verification.” SDCL 2-1-9
(1986) (emphasis added).
[¶13.] When reading the existing applicable statutes together, it is clear that
the legislature intended that in order to be valid, each sheet of paper in a circulated
petition shall have a heading and a verification block. Although our statutes
indicate that petitions are to be liberally construed, the fact that not one but several
more recently enacted applicable statutes have set out verification requirements for
each sheet of paper, clearly articulates the legislature’s overriding concern for the
integrity of signature verification.
[¶14.] The legislature has also mandated that the State Board of Elections
promulgate rules prescribing the referendum petition format. SDCL 2-1-3, 2-1-10,
9-20-9, 12-1-3(8), and 12-1-9. The format for municipal referendum petitions is
published under ARSD 5:02:08:16. This form, like all other South Dakota election
petition formats, follows the statutory requirement that each page of a petition
must include a heading and a verification block.
[¶15.] The record indicates that 19 petitions were circulated and
subsequently submitted by Anderson and others. The petitions were multi-page
and bound by a staple. The heading took up all of the first two pages and part of
the third. The instructions and several signature lines were included on the third
page. Varying numbers of additional signature pages without heading or
verification block were included in each petition. The final signature page
contained the introduction to a verification block with the circulator’s signature and
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notarization running over onto a final additional page. These petitions do not
conform to the unambiguous statutory requirements. 4
[¶16.] Affirmed.
[¶17.] GILBERTSON, Chief Justice, and, SABERS, KONENKAMP, and
ZINTER, Justices, concur.
[¶18.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice,
disqualified.
4. A thorough review of the statutes applicable to the issue at question in this
case reveals our legislature’s unmistakable concern for the potential that
unverified signatures could be included in any petition, consisting of multiple
sheets of paper that lacks verification on any sheet of paper therein. The
onus thus falls on the petitioner to insure that each sheet of paper in a
multiple-sheet petition is a self-contained document in compliance with our
statutes and regulations.
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