(concurring)
[¶ 18.] At stake here is the impartiality and integrity of the voting booth. We fully join in the Court’s opinion. We write only to stress a few additional points germane to the decision in this expedited case.
[¶ 19.] While in a generic sense, the Attorney General is the lawyer for the citizens of South Dakota in that he is an elected public official who is paid with taxpayers’ funds like all public officials his duties are defined by the South Dakota Constitution and our statutes. We do not read his general duties as set forth in SDCL 1-11-1 or any other code section (exclusive of the disputed SDCL 12-13-9) to authorize the giving of a legal opinion on the face of the ballot. Thus, we are presented with the narrow question now before us as to whether the disputed language may be authorized by SDCL 12-13-9. For the reasons set forth in the Court’s opinion, we conclude that it is not. This is not to say that the Legislature may not authorize such action if it chooses to do so in the future, only that it has not done so at this present time.
[¶ 20.] Given the short time in which this Court must decide this appeal to allow the election to timely proceed, we are unable to determine the constitutional status of proposed Amendment E. Indeed, we should not do so as the matter has not been fully argued by the parties. However, we are cited to decisions from other courts which have upheld limitations on corporate farming in varying degrees. See Omaha Nat. Bank v. Spire, 223 Neb. 209, 389 N.W.2d 269 (1986); MSM Farms v. Spire, 927 F.2d 330 (8th Cir.1991); Asbury Hospital v. Cass County, 326 U.S. 207, 66 S.Ct. 61, 90 L.Ed. 6 (1945). “It is up to the people of the State of Nebraska, not the courts, to weigh the evidence and decide on the wisdom and utility of the measures adopted through the initiative and referendum process.” MSM Farms, 927 F.2d at 333. Therefore, we leave any questions as to the constitutionality of Amendment E for such time as it is properly brought before us to determine that issue.
[¶ 21.] We would also point out that in Gormley v. Lan, 88 N.J. 26, 438 A.2d 519 (1981) while the court quite properly recognized the Attorney General of New Jersey was vested with significant discretion in how he authored the ballot explanation, the court concluded, as we do here, that this was one of those rare cases where the court had to intervene because the explanation was not impartial.
[¶ 22.] This is one of those rare cases when the Court must act to protect the integrity of the ballot box. We can take no side in the debate between corporate and family farm interests, but we must ensure that the debate remains outside the voting booth.
[¶ 23.] In summary, the people have created the process of initiative and referendum to allow them to participate directly in the drafting and creation of our Constitution and statutes. The Legislature has seen fit to assist the people in voting on proposed constitutional amendments created by initiative by authorizing the Attorney General to give a brief explanation per SDCL 12-13-9. Today we hold that this authorization does not go so far as to allow the Attorney General to declare that, “Amendment E could result in successful lawsuits against the State of South Dakota, under the U.S. Constitution.”
[¶ 24.] I am authorized to state that Chief Justice MILLER and Justice KONEN-KAMP join in this writing.