Schulte v. Long

ZINTER, Justice

(concurring).

[¶ 25.] I fully join the Court’s opinion and write only to emphasize three points.

[¶ 26.] First, we must remember that our scope and standard of review is limited. This Court’s scope of review in certio-rari is limited to examining the Attorney General’s jurisdiction and authority. SDCL 21-31-1; In the Matter of the Wrongful Payments made by the Brook-ings School District, 2003 SD 101, ¶ 16, 668 N.W.2d 538, 544-545. Furthermore, our standard of review on those issues allows the Attorney General “significant discretion” in carrying out his statutory duty of drafting ballot explanations. Hoogestraat v. Barnett, 1998 SD 104, ¶ 21, 583 N.W.2d 421, 425 (Gilbertson, J., concurring). The two principal reasons for such deference were set forth in Gormley v. Lan, 88 N.J. 26, 38-39, 438 A.2d 519, 525-526. Our case warrants repeating Ban’s extensive discussion of those reasons.

In evaluating the statement drafted by the Attorney General ... we should accord great deference to [the Attorney General’s] determination not only on the basis of settled principles of law, but also because of the glaring inappropriateness of judicial management and supervision of such matters. When within the scope of legislatively-delegated authority, administrative agents’ actions are presumptively valid, and where that authority confers discretion upon those agents, their actions will ordinarily not be overturned by the courts unless they are manifestly corrupt, arbitrary or misleading. We can conceive of few cases where administrative officials’ discretion is of necessity broader than here, given the enormous variety of statements that could properly be drafted within the authority vested in those officials. This being the case, the deference accorded the ... Attorney General must obviously be even greater than is generally the case. Finally, we have traditionally shown special deference to administrative agents charged with implementing the election laws. The other basis for yielding to the judgment of the administrative officers here is the inappropriateness of judicial involvement. Public questions often have substantial political overtones. As here, the drafting of an interpretive statement, as well as the question itself, can pit party against party, the Executive against the Legislature, and region against region. The appearance of impartiality is as important to judicial effectiveness and legitimacy as impartiality itself, and in these matters it will often be impossible to appear impartial. Rare is the case where the inadequacy of the interpretive statement will justify the risk of judicial intervention. That risk inheres not simply in the proposal of an alternative[,] but as well in the mere enjoining of the *502use of the proposed statement. Either can readily be perceived by one side or the other as both prejudicial to their cause and partial to that of their adversary.

Id. (internal citations omitted).

[¶ 27.] Although this deferential standard of review is no shield to retreat from our constitutional duty in the appropriate case, the rhetoric in this case proves the wisdom of Lan’s reasoning. .Thus, settled law on the Attorney General’s discretion and the inappropriateness of judicial management of ballot explanations both require that we decline Applicant’s invitation to become the ultimate scrivener of this ballot explanation.

[¶ 28.] I also write to point out that Applicant’s position is fatally inconsistent. It should not go unnoticed that this explanation is only three sentences long, and Applicant raises no objection to the first two sentences that frame the issue by indicating that the state, as well as many cities and towns, “collect a sales and use tax on the sale of food.” Applicant only objects to part of the last sentence explaining that passage of the .measure. would eliminate this source of revenue. However, it is incongruent to suggest that it is unlawful to explain one, but not both of the related matters at issue. Stated rhetorically, how can it be lawful to explain that a tax is collected, but unlawful to explain that passage of a new law will eliminate that source of revenue?

[¶ 29.] Finally, from my perspective, it defies logic and common sense to conclude that the “elimination of this source of revenue” is not a “result that the proposed [ ] amendment will have upon existing law.” It is equally nonsensical to conclude that the explanation is not a “recitation of the [purpose and legal] effect of a ‘Yes’ or ‘No’ vote.” See, Hoogestraat v. Barnett, 1998 SD 104, ¶ 8, ¶ 12, 588 N.W.2d at 423-424. The circuit court’s contrary conclusions are based upon a perceived distinction between the initiated measure’s legal effect and its practical effect. However, that is a distinction without a difference. The legal and practical effect of this measure is to repeal a tax and remove that source of revenue from the government’s coffers. Only a hyper-technical parsing of words could suggest that the measure does not legally affect sales and use tax law.5 Furthermore, the circuit court’s prohibition on any reference to the word “revenue” fails to consider the remaining statutory provisions that give the Attorney General authority to explain the “purpose” of the initiated measure, including an explanation “of the issue.” SDCL 12-13-9. “Revenue” is certainly a purpose of this measure, and it is unquestionably part of the issue.

[¶ 30.] A common sense reading of the Attorney General’s language reflects that it does no more than explain the issue, as well as the purpose and legal effect that the initiated measure will have on existing tax law. Therefore, when all provisions of SDCL 12-13-9 are considered, the Attorney General did not exceed his statutory authority. .

. There is also nothing in the text of this explanation justifying the circuit court’s conclusions that the explanation (1) implies that a yes vote "will strangle state and municipal budgets,” and, (2) "speculates that the Legislature will not replace the revenue.” Had there been such language (or implication), this would be a different case-.