Brendtro v. Nelson

#24139, 24162, GILBERTSON, Chief Justice
2006 SD 71

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

#24139

DANIEL K. BRENDTRO,
Sponsor of an Initiated Measure, Petitioner,

v.

CHRIS NELSON, in his official capacity
as Secretary of State of South Dakota Respondent.

* * * *

#24162

CELLCO PARTNERSHIP D/B/A,
VERIZON WIRELESS, Sponsor
of an Initiated Measure, Petitioner,

v.

CHRIS NELSON, in his official capacity
as Secretary of the State of South Dakota, Respondent.

* * * *

ORIGINAL PROCEEDING

* * * *

ARGUED JULY 27, 2006

OPINION FILED 8/9/06
PATRICK DUFFY of
Duffy & Duffy
Rapid City, South Dakota

MATTHEW T. TOBIN of
Tobin Law Office Attorneys for petitioner
Sioux Falls, South Dakota Daniel K. Brendtro

JAMES E. McMAHON of
McMahon Law Office
Sioux Falls, South Dakota

MATTHEW S. McCAULLEY and
JONATHAN A. KOBES of Attorneys for petitioner
Murphy, Goldammer & Prendergast Cellco Partnership d/b/a
Sioux Falls, South Dakota Verizon Wireless.

LAWRENCE E. LONG
Attorney General

JEFFREY P. HALLEM
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent.
#24139, 24162

GILBERTSON, Chief Justice

[¶1.] Before the Court are two separate original proceedings in mandamus

to compel the secretary of state to place initiated measures on the 2006 general

election ballot. One measure seeks to repeal the video lottery provisions of SDCL ch

42-7A. The other seeks to repeal the four percent gross receipts tax on wireless

telecommunications imposed by SDCL ch 10-33A. For the reasons set forth below,

the writs will issue.

FACTS

A. Video Lottery

[¶2.] The history of the video lottery law in South Dakota began in 1989

when the South Dakota Legislature authorized the South Dakota Lottery

Commission to offer video lottery games. 1989 SDSessL ch 368. The authorizing

bill, Senate Bill 129, was signed into law on March 1, 1989. Id. It was amended

that same session by Senate Bill 154 by adding three sections to the original bill.

One section approximated the generated revenues, one section included the amount

in another house bill and the third section declared the revenues as: "necessary for

the support of state government and its existing public institutions pursuant to

Article III, Section 1, of the Constitution of South Dakota." 1989 SDSessL ch 369.

This bill was signed on March 15, 1989. The law was not referred to the voters nor

was there any court action commenced to determine if the law fell within the

referendum exceptions of article III, § 1. See generally, Gravning v. Zellmer, 291

NW2d 751 (SD 1980).

[¶3.] Initiated Measure 4 sought to repeal all the statutory provisions that

the legislature had passed authorizing video lottery games. 1993 South Dakota
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Legislative Manual at 632. Initiated Measure 4 was defeated in the general

election on November 3, 1992. Id. at 629.

[¶4.] Shortly after the unsuccessful initiated attempt to repeal video lottery,

an action was filed in circuit court challenging the constitutionality of the original

laws. The action sought to prohibit the State of South Dakota from operating video

lottery and to require the immediate revocation of video lottery licenses. Poppen v.

Walker, 520 NW2d 238 (SD 1994). On June 22, 1994, this Court issued its opinion

holding "that video lottery is not authorized under Article III, § 25 of the South

Dakota Constitution." Id. at 240.

[¶5.] In response to the opinion, the South Dakota Legislature held two

special legislative sessions. In the first special session on July 12, 1994, the

legislature proposed to submit the video lottery issue to the voters as a

constitutional amendment to article III, § 25, authorizing video lottery. See,

SDConst, art XXIII, § 1 (providing, in part, "Amendments to this Constitution may

be proposed by initiative or by a majority vote of all members of each house of the

Legislature."). Laws of the 1994 First Special Session, ch 1. It was placed on the

ballot as Constitutional Amendment E. Also during this special session, the

legislature passed emergency legislation in order to fund state government. The

legislature replaced the lost video lottery revenue with funds transferred from the

budget reserve fund. Laws of the 1994 First Special Session, ch 2. In addition, the

legislature passed emergency legislation to ratify certain prior video lottery

legislation. Laws of the 1994 First Special Session, ch 4. The law also authorized

the possession, sale, transportation and disposal of licensed video lottery machines.

Laws of the 1994 First Special Session, ch 5 [sic]. In the second special session in
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September 1994, the legislature addressed state budget issues. During this session,

the legislature passed emergency legislation to repeal, reduce, and amend certain

appropriations and to provide budget transfers. Laws of the 1994 Second Special

Session, ch 1-16.

[¶6.] In the November 8, 1994, general election, the voters reauthorized the

video lottery system by approving proposed Constitutional Amendment E amending

article III, § 25. 1995 South Dakota Legislative Manual at 285, 290.

[¶7.] Six years later in 2000 the subject again was put to a vote of the people

by an initiated measure seeking to repeal video lottery by removing the 1994

authorization in article III, § 25. The voters rejected the 2000 initiated attempt to

repeal video lottery in the general election of November 7, 2000. 2001-2002 South

Dakota Legislative Manual at 257.

[¶8.] Before us is the most recent attempt to repeal video lottery. Video

lottery opponents gathered sufficient signatures on a petition to make the issue

eligible for placement on the 2006 general election ballot. The petition is entitled

"An Act to Repeal the Video Lottery." It is the subject of this action.

B. Gross Receipts Tax on Wireless Telecommunications

[¶9.] Also the subject of this action is the initiated measure to repeal the

gross receipts tax on wireless telecommunications. In 2003 the legislature passed a

law imposing a four percent (4%) excise tax on the gross receipts of wireless

communications. 2003 SDSessL ch 58; SDCL ch 10-33A. Attempts to repeal the tax

were introduced during the 2006 legislative session by Senate Bill 111 and House

Bill 1106. 2006 Senate Journal at 106; 2006 House Journal at 138. Both bills

failed. Senate Bill 111 was deferred by the Senate Committee on Taxation to the
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36th legislative day, a legislative mechanism that killed the bill. 2006 Senate

Journal at 402. House Bill 1106 was voted down by the House of Representatives

after being substantially amended by the House Committee on Taxation. 2006

House Journal at 528-529. The House Committee had recommended deleting all of

the language of the bill except the enacting clause and inserting language providing

for a legislative study on the taxes imposed on the telecommunications industry.

2006 House Journal at 466.

[¶10.] Promptly thereafter, on March 15, 2006, an initiative petition to repeal

the tax was filed. The title of the initiative is "An Act to Repeal the Four Percent

(4%) Gross Receipts Tax Imposed by South Dakota Codified Laws chapter 10-33A

Upon Wireless Telecommunications Services." Prior to the filing deadline, the

petition sponsors filed the initiative petition with sufficient signatures to be eligible

for placement on the general election ballot.

C. Attorney General's Opinion

[¶11.] After the signatures on each petition were verified, the secretary of

state requested an attorney general's opinion on the following question:

In 1995 the Supreme Court in Christensen v. Carson (533
NW2d 712) determined that the initiative process could
not be used to repeal a municipal ordinance or resolution.
Does the Christensen case or the Article III § 1 "support
of state government" prohibition prevent the placement of
this measure on the ballot?

[¶12.] In Official Opinion No. 06-05 on May 30, 2006, the attorney general

advised the secretary of state that the initiated measure seeking the repeal of the

statutory authorization for video lottery and the initiated measure seeking to repeal

the tax on telecommunications in SDCL ch 10-33A were not permissible uses of the

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constitutional power of initiative based upon this Court's decision in Christensen v.

Carson, 533 NW2d 712 (SD 1995). On June 7, 2006, the secretary of state advised

each of the initiative petition sponsors that the measures would not be placed on the

2006 general election ballot. 1

STANDARD OF REVIEW

[¶13.] These are mandamus actions to compel the secretary of state to place

each initiated measure on the ballot. "The writ of mandamus must be issued in all

cases where there is not a plain, speedy and adequate remedy, in the ordinary

course of law." SDCL 21-29-2. "The nature of a writ of mandamus is an

extraordinary remedy that will issue only when the duty to act is clear[.]" Baker v.

Atkinson, 2001 SD 49, ¶ 16, 625 NW2d 265, 271. This Court has said:

Mandamus is a potent, but precise remedy. Its power lies
in its expediency; its precision in its narrow application.
It commands the fulfillment of an existing legal duty, but
creates no duty itself, and acts upon no doubtful or
unsettled right. To prevail in seeking a Writ of
Mandamus, the petitioner must have a clear legal right to
performance of the specific duty sought to be compelled
and the respondent must have a definite legal obligation
to perform that duty.

1. At oral argument counsel discussed whether this issue is ripe for judicial
review. Without deciding whether the issue before us is a ripe justiciable
controversy, we note there are well recognized exceptions where courts
address the merits of an issue. Two well recognized exceptions to the
ripeness doctrine are where the matter is capable of repetition and a matter
of great public importance. Sedlacek v. S. D. Teener Baseball Program, 437
NW2d 866, 868 (SD 1989). We are advised that of the forty previous
proposed initiated measures to reach the general election ballot, thirty-seven
would have involved either the repeal or the amendment of an existing
statute (see footnote 8). Moreover, no one has suggested that the scope of the
right of the people to propose initiated measures is not of great public
importance. For this very reason we granted the right to proceed directly to
this Court and are adjudicating it in an expedited manner prior to the
election.

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Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 NW2d 240, 242 (citations

omitted)(emphasis added).

ISSUE

[¶14.] Does the power reserved by the people under article III, § 1 of
the South Dakota Constitution "to propose measures" include the power to
propose the repeal of an existing law? 2

DISCUSSION

[¶15.] Article III, § 1 of the South Dakota Constitution establishes the

people's right of initiative and referendum. It provides:

The legislative power of the state shall be vested in a
Legislature which shall consist of a senate and house of
representatives. However, the people expressly reserve to
themselves the right to propose measures, which shall be
submitted to a vote of the electors of the state, and also
the right to require that any laws which the Legislature
may have enacted shall be submitted to a vote of the
electors of the state before going into effect, except such
laws as may be necessary for the immediate preservation
of the public peace, health or safety, support of the state
government and its existing public institutions. Not more
than five percent of the qualified electors of the state shall
be required to invoke either the initiative or the
referendum.

This section shall not be construed so as to deprive the
Legislature or any member thereof of the right to propose

2. There obviously is a definitional distinction in a dictionary between a "repeal"
and an "amendment." See Black's Law Dictionary, repeal/amendment
distinguished at 1299 (6th ed 1993). However, both actions have a significant
effect on an existing statute. The text of the constitution makes no
distinction between the two. Neither historical analysis nor early case law
support a legal differentiation. Logically if a repeal is within the scope of the
power to initiate measures, an amendment is permissible. If an amendment
is to be given different legal status than a repeal, we enter the world of hair-
splitting distinctions between what is a 99.9999 percent decrease in a tax by
amendment of a statute versus an outright repeal. With no more support of a
legal distinction than this, for purposes of this issue, we treat the legal effect
of a repeal and an amendment upon an existing statute as a distinction
without a legal difference.
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any measure. The veto power of the Executive shall not
be exercised as to measures referred to a vote of the
people. This section shall apply to municipalities. The
enacting clause of all laws approved by vote of the electors
of the state shall be: "Be it enacted by the people of South
Dakota." The Legislature shall make suitable provisions
for carrying into effect the provisions of this section.

Thus, the initiative is the people's "right to propose measures" while the referendum

is the people's right "to require that any laws which the legislature may have

enacted shall be submitted to a vote of the electors of the state before going into

effect[.]"

[¶16.] When determining the meaning of a constitutional provision, we

normally would examine the language of the provision. Where a constitutional

provision is quite plain in its language, we construe it according to its natural

import. If the provision is ambiguous, we look to secondary sources for guidance.

State v. Pyle, 55 SD 269, 271, 226 NW 280, 281 (1929); In re Janklow, 530 NW2d

367, 370 (SD 1995). We have said:

"In the past, . . . secondary sources outside of the text of
the constitutional provision have provided us with
assistance." See Wegleitner v. Sattler, 1998 SD 88, ¶ 11,
n 3, 582 NW2d 688, 692. The "historical context" of a
constitutional provision is a guide to its interpretation.
Cleveland v. BDL Enterprises Ins., 2003 SD 54, ¶ 40, 663
NW2d 212, 223.

Doe v. Nelson, 2004 SD 62, ¶ 10, 680 NW2d 302, 305-306. While some argue that

the above constitutional provision is plain upon its face, our decision in Christensen

appears to have created an ambiguity.

[¶17.] Christensen examined a municipal initiated measure that sought to

"cease any and all activities" relating to the acquisition and construction of a new

airport facility. The Court in a three-two decision held that the petitions in
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question were referendum petitions rather than initiative petitions, and, therefore,

had failed to satisfy the requirements of the referendum process.

[¶18.] In broad language, the majority opinion in Christensen said:

Unfortunately, Christensen confuses the powers of
initiative and referendum and mistakenly assumes that
an initiative may be used, like a referendum, to repeal or
amend previously passed legislation. Settled South
Dakota law does not permit this result. The South
Dakota Constitution, the South Dakota Code, and settled
South Dakota case law clearly distinguishes between
initiative and referendum measures. (emphasis added; no
authority cited).

Christensen, 533 NW2d at 714.

While the constitution reserves both initiative and
referendum powers to the people, it excepts from the
referendum process any laws which were enacted "for the
immediate preservation of the public peace, health or
safety, support of the state government and its existing
public institutions." SDConst, art III, § 1. This exception
does not apply to the initiative process, id.; Byre, 362
NW2d at 79, presumably because initiatives are not
intended to affect existing laws. If we were to allow the
distinction between initiative and referendum to be
blurred, as Christensen seems to suggest, voters could
avoid the restrictions on the referendum power by simply
fashioning their petition in the form of an initiative. We
refuse to endorse this result, because doing so would
effectively nullify a constitutional provision. (emphasis
added; no authority cited).

Id. at 715.

The legislature recognized that only a referendum is
designed to pass on existing laws; no restrictions on
initiative powers were necessary, because initiatives were
not intended to conflict with or repeal current laws.
(emphasis added; no authority cited).

Id.

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[¶19.] This language from Christensen suggests that the attempts to repeal

video lottery and the gross receipts tax imposed on wireless telecommunications are

beyond the scope of the people's power of initiative because they are attempts to

repeal current law. The secretary of state and attorney general relied on language

in Christensen to conclude the measures should not be placed on the ballot. We find

no improper motive with the position taken by the secretary of state or the attorney

general regarding Christensen. As constitutional officers of the State they were

bound to follow Christensen, which, although it had a strong dissent, was still the

latest decision from this Court on the subject. 3

3. Under the South Dakota Constitution this Court is charged with the ultimate
interpretation of that document and the constitutionality of statutes enacted
by the legislature. In the early case of McCoy v. Handlin, 35 SD 487, 493,
153 NW 361, 363 (1915) the then state auditor declared: "I believe the
statute to be unconstitutional, and I deny to the judiciary of the state the
right to determine the correctness of my views . . .." This Court concluded
otherwise and issued a writ of mandamus to the auditor to enforce the
ministerial acts of his office.

In the case now before us, the secretary of state and the attorney general
correctly followed our fundamental constitutional analysis set forth in
Handlin:

It is certainly a novel and a startling proposition that, under the
constitution vesting the judicial powers of the state in her courts, an
. . . executive officer has the right and power to disregard the plain
provisions of a statute and refuse to perform a purely ministerial act
required of him thereunder, thus depriving another of a property right
conferred by such statute . . .. (emphasis original).

Handlin, 35 SD at 493, 153 NW at 363.

Brendtro and Verizon find fault with the secretary of state and attorney
general's reliance upon Christensen and claim it to be no more than reliance
upon obiter dictum. Even if correct, it does not relegate that portion of an
opinion of this Court to irrelevance.

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[¶20.] Here, we are asked to reconsider that portion of our writing in

Christensen, which suggests that an initiative cannot be used to repeal an existing

law. We do so in the context of the history of the initiative and referendum in South

Dakota, South Dakota case law, and the language of article III, § 1. 4

History of Initiative and Referendum

[¶21.] The historical background of the South Dakota constitutional provision

on initiative and referendum can be traced to the Constitutional Convention of

1885. On September 12, 1885, the Constitutional Convention of Dakota Territory

considered W.H. Lyon's petition for direct legislation by the people. The petition

called for all general laws to be submitted to a vote of the people and gave the

"It is a maxim, not to be disregarded, that general expressions, in
every opinion, are to be taken in connection with the case in which
those expressions are used. If they go beyond the case, they may be
respected, but ought not to control the judgment in a subsequent suit
when the very point is presented for decision. The reason for the maxim
is obvious. The question actually before the court is investigated with
care, and considered in its full extent. Other principles which may
serve to illustrate it are considered in their relation to the case
decided, but their possible bearing on all other cases is seldom
completely investigated."

Handlin, 35 SD at 502, 153 NW at 367 (quoting Cohen v. Virginia, 6 Wheat,
264, 399, 5 LEd 257).

4. Our attention has been called to case law from other states that deal with
this issue. In other cases we have been assisted by relying on case law from
other states, especially those that have constitutional provisions which South
Dakota may have copied or relied upon in drafting its constitution. However,
in this instance, South Dakota was the first state in the country to adopt
initiative and referendum, George Martin Smith, South Dakota: Its History
and Its People at 680 (1915). Moreover, it is clear that the impetus for this
movement was not from external sources but was rather a long-standing
movement within our own borders. 1 Doane Robinson, South Dakota: Sui
Generis at 351-353 (1930) (hereinafter Robinson).
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legislature only the power to pass appropriation and certain other necessary laws.

The petition read:

Petition

I respectfully request that this Convention incorporate a
provision in this constitution, that all appropriation bills
for new public institutions, and permanent improvements
to existing institutions, and all laws of general interest to
the people should be drafted by the Legislature, and
submitted for the people to enact or reject, at annual or
biennial elections, and that the Legislature be given only
the power to pass appropriation bills for the ordinary
running expenses of the State, and to enact the necessary
laws of a local, special and private nature, that can not
well be provided for by general acts. Respectfully, W.H.
Lyon.

1885 South Dakota Constitutional Debates 113. 5 The convention rejected the

petition and instead recommended that: "The legislative power shall be vested in a

legislature which shall consist of a Senate, and a House of Representatives." 1885

South Dakota Constitutional Debates 138.

[¶22.] The Constitution of the State of South Dakota was overwhelmingly

adopted by popular vote on October 1, 1889. Constitution of South Dakota, 1 South

Dakota Codified Laws at 191 (West). South Dakota Constitution, article VI, § 26

provided, as it does today:

All political power is inherent in the people, and all free
government is founded on their authority, and is
instituted for their equal protection and benefit, and they
have the right in lawful and constituted methods to alter
or reform their forms of government in such manner as
they may think proper. And the state of South Dakota is

5. There is no record of this being raised either in the 1883 or the 1887
Constitutional Conventions. See Journal of the 1883 Constitutional
Convention, South Dakota Department of History Collections at 291 (1942)
and Statehood for Dakota-Proceedings of the Territorial Convention of 1887,
South Dakota Department of History at 469 (1942).
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an inseparable part of the American Union and the
Constitution of the United States is the supreme law of
the land.

Thus, under our system of government the powers of government are derived from

the people.

[¶23.] The language of article III, § 1 of the constitution adopted in 1889

mirrored that proposed by the 1885 constitutional convention: "The legislative

power shall be vested in a legislature, which shall consist of a senate and house of

representatives." This section of the constitution "granted to the legislature the

legislative power of the state without reservations," Pyle, 55 SD at 271, 226 NW at

281, and was only subject to the veto of the governor. Hodges v. Snyder, 43 SD 166,

178 NW 575 (1920). Pursuant to article III, § 22, of the 1889 constitution, no

legislative act could take effect until ninety days after the adjournment of the

session at which it was passed unless an emergency was declared by a two-thirds

vote of all the members of each house. In that case, "such act took effect

immediately upon its passage and approval[.]" Hodges, 43 SD at 174, 178 NW at

577.

[¶24.] The movement for the initiative and referendum began in 1885 and

continued for the next thirteen years as the Farmer's Alliance, the Knights of

Labor, the Initiative and Referendum League, and the Populist Party kept the issue

before the people through a non-partisan educational campaign that turned into a

political movement. Robinson at 351-354; H. Roger Grant, Origins of a Progressive

Reform: The Initiative and Referendum Movement in South Dakota, Vol 3, No 4

South Dakota History 390 (1973); see also History of the Initiative and Referendum

in South Dakota, Legislative Reference Bulletin No 3 (Pierre 1918); Burton
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Ellsworth Tiffany, The Initiative and Referendum in South Dakota, South Dakota

Historical Collections 12 (1924). The movement was spurred by economic unrest,

the complacency of political leaders, as well as a spirit of political independence.

Herbert S. Schell, History of South Dakota 223 (3d ed, revised, University of

Nebraska Press 1975). Direct democracy was seen as a way to "cleanse the

legislative process." Grant, supra, Vol 3, No 4, South Dakota History at 394. The

movement gained the platform to successfully launch this proposal when in 1896

the Populists gained control of both houses of the legislature and the governorship.

Herbert S. Schell, "Andrew E. Lee," Over a Century of Leadership: South Dakota

Territorial and State Governors 67-69.

[¶25.] In 1897 a majority of the members of each house of the legislature then

controlled by the Populists, proposed amending article III, § 1 of the constitution to

provide for the initiative and referendum. In the ensuing campaign, Populist

Governor Andrew O. Lee, a chief proponent of the proposal, argued that the passage

of the initiative and referendum would "end the powers of special interests, save

taxpayers money, and enable citizens to secure various pieces of needed legislation."

Schell, "Andrew E. Lee," Over a Century of Leadership at 68.

[¶26.] The electorate approved the amendment on November 8, 1898. This

amendment provided for initiative and referendum as follows:

The legislative power of the state shall be vested in a
legislature which shall consist of a senate and house of
representatives, except that the people expressly reserve
to themselves the right to propose measures, which
measures the legislature shall enact and submit to a vote
of the electors of the state, and also the right to require
that any laws which the legislature may have enacted
shall be submitted to a vote of the electors of the state
before going into effect, except such laws as may be
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necessary for the immediate preservation of the public
peace, health or safety, support of the state government
and its existing public institutions.

Provided, that not more than five per centum of the
qualified electors of the state shall be required to invoke
either the initiative of the referendum.

This section shall not be construed so as to deprive the
legislature or any member thereof of the right to propose
any measure. The veto power of the executive shall not be
exercised as to measures referred to a vote of the people.
This section shall apply to municipalities. The enacting
clause of all laws approved by vote of the electors of the
state shall be, "Be it enacted by the people of South
Dakota." The legislature shall make suitable provisions
for carrying into effect the provisions of this section.

By adopting this amendment the people expressly reserved to themselves "the right

to propose measures," the initiative, as well as "the right to require that any laws

which the legislature may have enacted shall be submitted to a vote of the electors

of the state before going into effect," the referendum. 6

6. On seven occasions since it was enacted in 1898 proposed amendments to
article III, § 1 have been submitted to a vote of the people. 1913 SDSessL ch
132; 1921 SDSessL ch 146; 1969 SDSessL ch 242; 1974 SDSessL ch 1; 1975
SDSessL ch 2; 1980 SDSessL ch 2; 1987 SDSessL ch 2. All but one
amendment was rejected by the voters. Those rejected included 1913, 1921,
and 1969 proposed amendments changing the number of electors required to
invoke the initiative or referendum, 1974 and 1975 proposed amendments
excepting appropriations from the initiative power, and a 1980 proposal to
restrict the legislature from changing laws voted on by the people. The only
proposal to be approved was a 1987 amendment that deleted the provisions
requiring the legislature to enact proposed initiated measures. The rejection
of the majority of proposed amendments to article III, § 1 indicates its
"popular approval" after 117 years of operation, Pyle, 55 SD at 273, 226 NW
at 282, as well as the determination of South Dakotans to protect their right
to place measures on the ballot.

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[¶27.] The first statewide use of the initiative and referendum was at the

November 1908 general election. 1909 South Dakota Legislative Manual at 373.

The people initiated an act to provide for the licensing, restricting and regulation of

the business of the manufacture and sale of spirituous and intoxicating liquors.

1907 SDSessL ch 179. Section 6 of this act provided: "All acts and parts of acts in

conflict with this act are hereby repealed." 1907 SDSessL ch 179 § 6. 7

[¶28.] Robinson reports numerous other attempts at initiative following its

constitutional adoption. Some proposals passed while many did not. Despite

numerous attempts to amend existing laws, nowhere in our reported decisions of

that era was the claim advanced that initiatives may not repeal or amend existing

state laws adopted by the legislature. Quite to the contrary, in several instances

they did. 8 While not dispositive, we have found that how drafters and the courts

treat amendments in the years following the enactments provides guidance in our

interpretation. Doe, 2004 SD 62 at ¶ 7, 680 NW2d at 307.

Caselaw

[¶29.] In one of its earliest comments on the initiative, the Court observed

that "[t]he [Legislature's] power is only concurrent with the power of the people to

7. The voters rejected this initiated measure by a margin of 41,405 to 39,075.
1909 South Dakota Legislative Manual at 373. The people also referred
three laws enacted by the legislature dealing with divorce, 1907 SDSessL ch
132, the protection and preservation of quail, 1907 SDSessL ch 158, and the
prohibition of theatrical performances on Sunday. 1907 SDSessL ch 234. In
each case a majority of the voters voted for the act and it went into effect.
1909 South Dakota Legislative Manual at 373-374.

8. Verizon notes that since 1898, forty initiated statutory measures have been
submitted to the electors. Twenty-two contained repeal language while
fifteen amended existing statutes.

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initiate a law on any subject." Pyle, 55 SD at 272, 226 NW at 281. This continued

to be the unchallenged state of the law until 1985 when this Court decided Byre v.

City of Chamberlain, 362 NW2d 69 (SD 1985). There, rather than relying on our

prior constitutional history and case law, the Court cited only to 82 CJS Statutes §

116 (1953) for the proposition that:

The purpose of the initiative is not to curtail or limit
legislative power to enact laws, but rather to compel
enactment of measures desired by the people, and to
empower the people, in the event the legislature fails to
act, to enact such measures themselves.

362 NW2d at 79. 9 Then Christensen concluded that "initiatives are not intended to

affect existing laws," 533 NW2d at 715, citing as its only authority the above

rationale of Byre.

[¶30.] The Christensen limitation on the initiative appears inconsistent with

the historical context of the adoption of the initiative and the proponents' intent.

When the right of initiative was adopted in 1898, the bedrock of our current

statutory framework was already in place and the State had a well-developed

criminal and civil code that regulated significant aspects of governmental, societal

9. Apparently the editors of CJS have now concluded otherwise. The 1999
edition of 82 CJS Statutes § 114 now states:

An initiative may repeal a statute, expressly or by implication, . . . .
Initiative may be used to create legislation which voters cannot vote on
through referendum.

More fundamentally, the crucial sentence of the 1953 edition of CJS cites as
its authority for its statement, "and to empower the people, in case the
legislature fails to act, to enact such measures themselves," this Court's
opinion in Whisman, 36 SD at 272, 154 NW at 711. A review of Whisman
establishes that it does not contain those crucial words as is attributed to it
by the 1953 edition of CJS. Thus, there was no primary authority for the
statement to begin with.
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and individual life. To hold that the initiative can be used only where the

legislature has not acted would adopt a constitutional interpretation that would

effectively relegate the initiative to the most insignificant aspects of our society and

lives. "This Court will not construe a constitutional provision to arrive at a

strained, unpractical or absurd result." Breck v. Janklow, 2001 SD 28, ¶ 12, 623

NW2d 449, 455.

[¶31.] The Christensen view of the initiative also appears inconsistent with

constitutional provisions referring to the initiatives that were passed in the time

frame surrounding that decision. In 1978 the voters approved article XI, §13 of the

South Dakota Constitution. The provision clearly assumes that within the scope of

the amendment, an initiative is a permissible method of dealing with taxation on

real or personal property:

The rate of taxation imposed by the state of South Dakota
on personal or corporate income or on sales or services, or
the allowable levies or the percentage basis for
determining valuation as fixed by law for purposes of
taxation on real or personal property, shall not be
increased unless by consent of the people by exercise of
their right of initiative or by two-thirds vote of all the
members elect of each branch of the Legislature.
(emphasis added).

[¶32.] Article XI, § 14 also supports the authority of the people to repeal a

statute through the initiative process. It was passed in 1996 a year after this Court

decided Christensen. It states:

The rate of taxation imposed by the State of South Dakota
in regard to any tax may not be increased and no new tax
may be imposed by the State of South Dakota unless by
consent of the people by exercise of their right of initiative
or by two-thirds vote of all the members elect of each
branch of the Legislature. (emphasis added).

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This article clearly contemplates that an existing tax, which originates from a

statute, may be amended or repealed though the initiative process. Moreover, in

our recent case of Schulte v. Long, 2004 SD 102, 687 NW2d 495, we had before us

an issue concerning a ballot initiative to repeal the sales tax on food. In his

concurring opinion Justice Zinter observed that "[t]he legal and practical effect of

this measure is to repeal a tax[.]" (emphasis original). 2004 SD 102 at ¶ 29, 687

NW2d at 502.

[¶33.] Christensen was largely premised on the distinction between the

initiative and referendum and avoiding the use of the initiative to nullify the

referendum provision of article III, § 1. According to article III, § 1:

two classes of laws . . . are not subject to the
referendum: First, such laws as are declared by the act
itself to be necessary for the immediate preservation of
the public peace, health, or safety of the state; and second,
such laws as are necessary for the support of state
government and its existing public institutions.

Hodges, 43 SD at 174, 175, 178 NW at 577. Excepting "laws as may be necessary

for the immediate preservation of the public peace, health or safety, support of the

state government and its existing institutions" from the people's power to refer laws

assured "that the wheels of the state and its existing institutions would be kept

turning and the public peace, health and safety not be wholly left to the mercy of

deferred political campaigns." Pyle, 55 SD at 273, 226 NW at 281. The exceptions

to the referendum constitute "an additional grant of power to the legislature, and, if

any part of the grant is to be strictly construed it is [these] exception[s]," Pyle, 55

SD at 272, 226 NW at 281, while the reserved powers of initiative and referendum

are not strictly construed. Id.

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Language of Article III, § 1

[¶34.] Notwithstanding the exceptions to the referendum, the language in

article III, § 1 reserving the power of initiative is clear: "[T]he people expressly

reserve to themselves the right to propose measures[.]" Article III, § 1. Its clarity

was recognized in Pyle:

[Article III, § 1] is quite plain in its language, which must
be construed according to its import where there is no
ambiguity. Though it may have been an experiment in
government and the product of extremists in turbulent
times, it cannot be ignored. The fact that more
conservative men are unable to suggest a construction in
accord with their views of conservative government is
evidence that its language is not ambiguous.

Pyle, 55 SD at 273, 226 NW at 281. "In the absence of ambiguity, the language in

the constitution must be applied as it reads" and this Court is obligated to apply its

"plain meaning." Janklow, 530 NW2d at 370.

[¶35.] Indeed, while article III, § 1 gives the legislature power in areas

excluded from the scope of the referendum, the power is not exclusive. It is

concurrent with the people's right to initiate measures. As stated in Pyle:

The legislature is not given exclusive power in the
excepted field. The power is only concurrent with the
power of the people to initiate a law on any subject. The
exception applies only to the referendum and the initiative
is as applicable in this field as anywhere.

Pyle, 55 SD at 272, 226 NW at 281. (emphasis added). The people's power to

initiate laws on any subject, including those excluded from the scope of the

referendum, is concurrent with the legislature's authority to propose measures.

SDConst, art III, § 1. There is nothing in the 1898 amendment to article III, § 1

"which, either expressly or impliedly, in any degree, conflicts with, inhibits, limits,

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abridges, or prohibits any part of the legislative power originally granted to it to

react, amend, or repeal any law which it might have enacted before the adoption of

this amendment." Whisman, 36 SD at 269, 154 NW at 709. (emphasis added).

Consequently, the people's power to propose measures includes the legislative

power to repeal laws.

[¶36.] In support of Christensen’s interpretation of the limited scope of the

1898 amendment to article III, § 1, the secretary of state contends that the public

debate surrounding the campaign of 1898 was limited to the extent of the

limitations on the referendum. From this the secretary of state concludes the

initiative was relegated to a secondary status that could not be used to set aside

acts of the legislature. Legislative acts could only be set aside by the people under

referendum. See Tiffany, supra, 350 at n 27. A reading of the constitutional text

does not support such a limited view. We must assume the drafters said what they

meant and meant what they said. Gloe v. Union Ins. Co., 2005 SD 30, 694 NW2d

252. Further, although far from dispositive, impassioned statements such as those

made by Governor Lee during the 1898 campaign to secure passage of the right of

initiative are anything but indifferent. See Schell, "Andrew E. Lee," Over a Century

of Leadership at 68.

[¶37.] Despite the statement to the contrary in Christensen, the people's

power to initiate measures to repeal existing laws does not blur the distinction

between the initiative and referendum or nullify the referendum provision of article

III, § 1. The referendum allows the people to vote on a legislatively enacted law

before it takes effect except when the law is necessary for the immediate

preservation of the public peace, health or safety or the support of state government
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and its existing public institutions. SDConst, art III, § 1. "[I]t is in effect the

exercise of veto power." State v. Summers, 33 SD 40, 50, 144 NW 730, 732 (1913).

The initiative allows the people to propose new laws and to repeal current laws that

after the passage of time are reviewed as undesirable or unnecessary.

[¶38.] The people's power to initiate measures to repeal existing laws,

including revenue generating laws initially declared emergency legislation, is not

without safeguards. Initiative petitions must be filed in the secretary of state's

office by the first Tuesday in May of a general election year. SDCL 2-1-2. In the

case of an initiated measure that seeks to repeal existing law, the existing law and,

in the case of a revenue generating law, the revenue, remains in place and

unaffected for at least six months between the filing of the petition and the general

election. This allows for stability in government while the electorate debates the

merits of the proposal. It also allows for legislative planning to prepare for

circumstances arising if the repeal is successful. 10 Should the voters approve an

initiative to repeal existing law, the repeal becomes effective the day after the

completion of the official canvass by the State Canvassing Board. SDCL 2-1-12. 11

10. This may include the legislative repeal or amendment of an initiated
measure. Whisman, 36 SD at 269, 154 NW at 710. We note that in 1993 the
legislature amended a 1984 initiated measure prohibiting schools from
opening before Labor Day. 1984 SDSessL ch 118; 1993 SDSessL ch 133.

11. We are also asked to ascertain whether the secretary of state possesses a
ministerial or discretionary duty to place initiatives on the ballot. Given our
disposition above, we need not address this additional matter. Even if it were
deemed to be a discretionary duty, we have held that an error of law can be
by definition an abuse of discretion. Halls v. White, 2006 SD 47, 715 NW2d
577.
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CONCLUSION

[¶39.] Thus based on an examination of the history of the initiative and

referendum in South Dakota, South Dakota case law, and the language of article

III, § 1, we conclude that the people's power to propose measures includes the

power to propose repeal of existing laws. Therefore, Christensen is overruled to the

extent that it is inconsistent with this opinion. Petitioners have demonstrated that

they have a clear legal right to have each initiated measure placed on the ballot.

The secretary of state has the definite legal obligation to place each measure on the

ballot. Accordingly, the writs of mandamus will issue.

[¶40.] SABERS, Justice, ZINTER, Justice and MEIERHENRY, Justice,

concur.

[¶41.] KONENKAMP, Justice, concurs with writing.

KONENKAMP, Justice (concurring).

[¶42.] I concur with the Court's opinion. The language in Christensen v.

Carson, 533 NW2d 712 (SD 1995) was overbroad. Judges have an obligation to

reexamine their views when superior proof is brought forth to challenge previous

understandings. For me, such is the case here.

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