#30008, #30163-r-SPM 2024 S.D. 6
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
#30008
TAMMY BOHN, JUSTIN BOHN, and BRENDA VASKNETZ, Petitioners and Appellants,
v.
FAY BUENO, in her capacity as Finance Officer for the City of Sturgis; MARK CARSTENSEN, in his capacity as Mayor for the City of Sturgis; and MIKE BACHAND, ANGELA WILKERSON, DAVID MARTINSON, BEKA ZERBST, JASON ANDERSON, AARON JORDAN, DEAN SIGMAN, and KEVIN FORRESTER, in their capacities as Aldermen for the City of Sturgis, Respondents and Appellees. ---------------------------------------------------------------- #30163
TAMMY BOHN, JUSTIN BOHN, and BRENDA VASKNETZ, Plaintiffs and Appellants,
CITY OF STURGIS, a South Dakota Municipal Corporation, and DANIEL AINSLIEE, Defendants and Appellees. ****
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA
THE HONORABLE KEVIN KRULL Judge
ARGUED MAY 24, 2023 OPINION FILED 02/07/24 ****
KELLEN B. WILLERT of Bennett, Main, Gubbrud & Willert, P.C. Belle Fourche, South Dakota Attorneys for appellants.
ROBERT B. ANDERSON DOUGLAS A. ABRAHAM of May, Adam, Gerdes and Thompson, LLP Pierre, South Dakota Attorneys for appellees #30163.
MARK F. MARSHALL ERIC C. MILLER of City of Sturgis Sturgis, South Dakota Attorneys for appellees #30008. #30008, #30163
MYREN, Justice
[¶1.] Appellants Tammy Bohn, Justin Bohn, and Brenda Vasknetz
(Citizens) applied for a writ of mandamus against several city officials after the
finance officer for the City of Sturgis (City) declined to certify their petition to hold
an election to remove the position of city manager from the City’s government.
They sought a writ of mandamus requiring the finance officer to certify their
petition and also requiring the city council to schedule and hold an election under
their petition. The circuit court denied the writ by granting summary judgment in
favor of the City. Citizens appeal. We reverse.
Factual and Procedural History
[¶2.] The current municipal government of the City is comprised of a mayor
and aldermen. The City also employs a city manager. The voters created the city
manager position through a 2007 election that added the position to the City’s
government.
[¶3.] Citizens were among a group that circulated petitions in late 2021
seeking to remove the city manager position from the City’s government. The
petition stated:
WE THE UNDERSIGNED qualified voters of the municipality of STURGIS, the state of South Dakota, petition, pursuant to SDCL § 9-11-6 and other applicable law, petition that the municipal government of STURGIS be changed as follows and that the proposal be submitted to the voters for their approval or rejection pursuant to SDCL § 9-11-5: The form of government for the municipality of Sturgis should be changed from the current form of municipal government (aldermanic with a city manager form of government) to an aldermanic form of government without a city manager.
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Like this petition, the election in 2007, which established the city manager position,
was also petitioned under SDCL 9-11-6. That statute provides:
If a petition signed by fifteen percent of the registered voters of any municipality, as determined by the total number of registered voters at the last preceding general election, is presented to the governing body, requesting that an election be called for the purpose of voting upon a question of change of form of government or upon a question of the number of wards, commissioners, or trustees, the governing body shall call an election to be held within fifty days from the date of the filing of the petition with the municipal finance officer. At that election, the question of the change of form of government or the number of wards, commissioners, or trustees, or both, must be submitted to the voters. No petition is valid if filed more than six months after the circulation start date declared on the petition forms. If the petition is filed on or after January first prior to the annual municipal election and within sufficient time to comply with the provisions of § 9-13-14, the question may be submitted at that annual municipal election. The election must be held upon the same notice and conducted in the same manner as other city elections.
SDCL 9-11-6 (emphasis added).
[¶4.] The petition containing approximately 900 signatures was filed with
the city finance officer, Fay Bueno, on December 16, 2021. Instead of proceeding to
certify the petition, Bueno consulted with the city attorney and asked him to render
a legal opinion on the propriety of the question presented in the petition, namely
whether removing a city manager is a change in the “form of government” that
could be petitioned under SDCL 9-11-6.
[¶5.] The city attorney prepared a report concluding that Bueno should not
schedule an election because the question posed on the petition was improper. The
report stated that employing a city manager was not a form of government and
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that, under SDCL 9-10-11 1, only the city council could remove a city manager. The
report further concluded that “[t]he city council should authorize an action for
declaratory judgment in circuit court to determine whether the power to employ a
city manager is a form of government.”
[¶6.] The City posted a statement on its website on December 28, 2021,
stating:
Based upon a discussion during a Special City Council meeting held on December 28, the City Finance Officer will neither validate nor invalidate petitions to Change Municipal Government. On the advice of the Sturgis City Attorney, the Sturgis City Council will ask the City Attorney to file an action for a declaratory judgment from the South Dakota Board of Elections. This is an independent third party that will render an unbiased decision. This action will help clarify the rights of involved parties and will determine if the removal of a City Manager is considered a change in the form of government. The City Council will determine the appropriate next steps based on that decision.
The City Council unanimously approved a resolution on January 3, 2022, directing
the mayor to submit a petition to the State Board of Elections (Election Board)
“requesting a declaratory judgment as to the propriety of the question submitted on
the question.” 2
[¶7.] On January 3, 2022, Citizens applied for a writ of mandamus in circuit
court seeking to compel the finance officer to certify that sufficient signatures were
1. “The manager shall be appointed for an indefinite term but may be removed by majority vote of the members of the governing body.” SDCL 9-10-11.
2. ARSD 5:02:02:01 allows for a petition to the State Board of Elections to issue a declaratory ruling. After receipt of the petition, the Board has thirty days to issue its declaratory ruling. ARSD 5:02:02:02.
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submitted on the petition. It also asked the circuit court to require the city council
to schedule and carry out an election under SDCL 9-11-6 or 9-10-1. While similar to
SDCL 9-11-6 in some respects, SDCL 9-10-1 permits a petition to hold an election
on “the proposition of employing a city manager.” 3
[¶8.] Also on January 3, 2022, the mayor requested a declaratory ruling
from the Election Board on the question, “Is a city manager an employee or a form
of municipal government within the meaning of SDCL § 9-11-6?” The Election
Board requested further information from the mayor about how the petition fell
within the jurisdiction of the Election Board. The mayor subsequently withdrew
the petition for a declaratory ruling before the Election Board “[b]ecause the
referendum sponsors filed an action for mandamus[.]”
3. SDCL 9-10-1 provides in full:
If a petition signed by fifteen percent of the registered voters of any first or second class municipality as determined by the total number of registered voters at the last preceding general election is presented requesting that an election be called to vote upon the proposition of employing a city manager, the governing body shall call an election for that purpose. Upon receipt of a valid petition, the question shall be presented at the next annual municipal election or the next general election, whichever is earlier. However, the governing body may expedite the date of the election by ordering, within ten days of receiving the petition, a special election to be held on a Tuesday not less than thirty days from the date of the order of the governing body. The election shall be held upon the same notice and conducted in the same manner as other municipal elections. The vote upon the question of employing a city manager shall be by ballot which conforms to a ballot for statewide question except that the statement required to be printed on the ballot shall be prepared by the municipal attorney.
(Emphasis added.)
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[¶9.] In a January 12, 2022 letter, Bueno informed Citizens that she
declined to certify the petition. The letter stated that she had requested an opinion
from the city attorney, who advised her that a city manager was not a form of
government and that employing a city manager was an administrative decision and,
therefore, not subject to referendum.
[¶10.] The City filed a motion for summary judgment on the writ of
mandamus action. Following a hearing, the circuit court issued a memorandum
decision and order, noting that the petition sought to change the form of
government from aldermanic with a city manager to aldermanic without a city
manager. The circuit court cited SDCL 9-2-3 4 and held that the petition sought to
do away with the city manager position, but such a change was not in the City’s
form of government. The circuit court concluded that the petition improperly
sought to achieve an outcome that was not possible through a petition for a change
in the form of municipal government. The circuit court granted summary judgment
in favor of the City and dismissed the case. The grant of summary judgment
effectively denied the application for a writ of mandamus.
[¶11.] Citizens now appeal, asking this Court to issue “a writ of mandamus
ordering Bueno to certify the Petition, present the Petition to the Sturgis Council,
and for the Sturgis Council to schedule an election.” Alternatively, they assert that
the circuit court erred in denying their motion to limit the scope of the City’s
arguments and that it erred in granting summary judgment.
4. “Each municipality shall be governed by a board of trustees, a mayor and common council, or by a board of commissioners. A city manager may serve with any of the forms of government.” SDCL 9-2-3.
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Standard of Review
[¶12.] The circuit court granted summary judgment in favor of the City. 5
“We review a circuit court’s entry of summary judgment under the de novo standard
of review.” Ries v. JM Custom Homes, LLC, 2022 S.D. 52, ¶ 14, 980 N.W.2d 217,
222 (quoting Wyman v. Bruckner, 2018 S.D. 17, ¶ 9, 908 N.W.2d 170, 174). “We will
affirm a circuit court’s ‘grant of a motion for summary judgment when no genuine
issues of material fact exist, and the legal questions have been correctly decided.’”
Id. (quoting Harvieux v. Progressive N. Ins. Co., 2018 S.D. 52, ¶ 9, 915 N.W.2d 697,
700). Underlying questions of statutory interpretation and application in the
mandamus action “are questions of law that we review de novo.” Krsnak v. S.D.
Dep’t of Env’t and Nat. Res., 2012 S.D. 89, ¶ 8, 824 N.W.2d 429, 433 (quoting State
v. Goulding, 2011 S.D. 25, ¶ 5, 799 N.W.2d 412, 414).
Whether the circuit court correctly applied the laws related to mandamus when it granted summary judgment.
[¶13.] “A writ of mandamus is an extraordinary remedy that will issue only
when the duty to act is clear.” Id. ¶ 9, 824 N.W.2d at 434 (quoting Woodruff v. Bd.
of Comm’rs for Hand Cnty., 2007 S.D. 113, ¶ 3, 741 N.W.2d 746, 747). “A writ of
5. Citizens assert that summary judgment was not an available remedy to dispose of the writ of mandamus. Summary judgment is available for “[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought[.]” SDCL 15-6-56(b). “[S]ummary judgment is appropriate to dispose of legal, not factual questions.” Trapp v. Madera Pacific, Inc., 390 N.W.2d 558, 562 (S.D. 1986). A writ of mandamus presents the legal question about whether someone has a clear legal duty to act. Therefore, summary judgment can be appropriate. See also Williams v. Sundstrom, 385 P.3d 789, 793 (Wyo. 2016) (“Summary judgment is available in a mandamus action.”); Newman Signs, Inc. v. Hjelle, 300 N.W.2d 860, 863 (N.D. 1980) (granting summary judgment in a writ of mandamus action).
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mandamus ‘commands the fulfillment of an existing legal duty, but creates no duty
itself, and’ does not act ‘upon . . . doubtful or unsettled law.’” Id. (omission in
original) (quoting Woodruff, 2007 S.D. 113, ¶ 3, 741 N.W.2d at 747). “To prevail on
a writ of mandamus or prohibition, Petitioners must show ‘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.’” Id. (alteration in original)
(quoting Cheyenne River Sioux Tribe v. Davis, 2012 S.D. 69, ¶ 13, 822 N.W.2d 62,
66). “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.
[¶14.] The circuit court’s decision is premised on its conclusion that Citizens’
petition could not be submitted to the voters because it did not seek a change in the
form of government. The court further held that the petition “improperly seeks to
achieve an outcome that is not possible, whether by initiative, referendum, or other
means” and was therefore invalid. However, before addressing whether these
conclusions were erroneous, we must first address whether the finance officer had
the authority to evaluate the purpose of a petition when completing her statutory
duties concerning petitions of this type. Thus, we must ascertain the finance
officer’s statutory duties for certifying a petition of the kind submitted in this case.
Mandamus will only compel the completion of clear duties.
[¶15.] Citizens contend Bueno’s duty is defined by SDCL 9-20-4, which
provides:
When a petition to initiate is filed with the finance officer, the finance officer shall present the petition to the governing body at its first ensuing regular or special meeting. The governing body
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shall submit the petition to a vote of the voters in the manner prescribed for a referendum.
[¶16.] “In conducting statutory interpretation, we give words their plain
meaning and effect, and read statutes as a whole.” Reck v. S.D. Bd. of Pardons and
Paroles, 2019 S.D. 42, ¶ 11, 932 N.W.2d 135, 139 (quoting State v. Bowers, 2018
S.D. 50, ¶ 16, 915 N.W.2d 161, 166). “[I]f the words and phrases in the statute have
plain meaning and effect, we should simply declare their meaning and not resort to
statutory construction.” Id. (alteration in original) (quoting State v. Bariteau, 2016
S.D. 57, ¶ 15, 884 N.W.2d 169, 175). “The intent of a statute is determined from
what the Legislature said, rather than what we think it should have said.” Id.
(quoting Engesser v. Young, 2014 S.D. 81, ¶ 22 n.1, 856 N.W.2d 471, 478 n.1).
[¶17.] Registered voters of a municipality may initiate ordinances and
resolutions by submitting a petition “signed by at least five percent of the registered
voters in the municipality.” SDCL 9-20-1. SDCL 9-20-4 defines a finance officer’s
duty when voters submit a petition proposing such an initiative. This case does not
involve an initiative petition; consequently, SDCL 9-20-4 is inapplicable. Instead,
given the nature of the petition submitted by Citizens, we conclude the finance
officer’s duties in this context are defined elsewhere. SDCL 12-1-9 directs that the
“State Board of Elections shall promulgate rules, pursuant to chapter 1-26,
concerning . . . (6) The procedure to accept a petition and verify petition
signatures[.]” Under that authority, the Election Board has promulgated ARSD
5:02:08:00, which provides:
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When a petition is presented for filing, the person or governing board authorized to accept the petition shall determine if it meets the following requirements: (1) The petition is in the form required by this chapter; (2) The petition contains the minimum number of valid signatures . . . (3) Each sheet of the petition contains an identical heading and is verified by the circulator. . . .
In the circumstances presented in this case, the city finance officer is the person
authorized to accept the petition, so it was her duty to follow the regulation. This
regulation imposes the duty on the finance officer to make three determinations:
whether the petition is in the “form required by this chapter,” whether it contains
the necessary signatures, and whether each sheet of the petition contains the
identical header and is properly verified.
[¶18.] This case requires us to address the question of the scope and nature of
the finance officer’s duty to ensure that any petition is in the “form required by this
chapter.” Chapter 5:02:08 provides specific forms related to the types of petitions
regularly used by voters. 6 Chapter 5:02:08 does not contain any form of a petition
regarding the authorization or deauthorization for a city to use a city manager, but
it does contain a form for a petition to change the form of government. See ARSD
5:02:08:23. The 2007 petition that the Sturgis voters approved to authorize the City
to employ a city manager used this form to accomplish a change in the form of
municipal government. In their efforts to have the voters reverse the outcome of
the 2007 election, Citizens submitted their petition using the same form. When
6. The forms for a municipal initiative petition and a municipal referendum petition are found in ARSD 5:02:08:15 and ARSD 5:02:08:16, respectively, and are different from the form for a change in the form of municipal government found in ARSD 5:02:08:23.
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performing her duties as defined by ARSD 5:02:08:00.03, which specifies the
components that must be included on all petitions prescribed in Chapter 5:02:08
(including “instructions to signers, signature blanks, and verification”), the finance
officer had a clear duty to compare the petition submitted with the form provided in
the ARSD. Performance of that clear duty could lead to no other conclusion but that
the petition was in the “form required by this chapter.”
[¶19.] The City contends the finance officer also had the authority to inquire
into the subject matter of the petition to determine whether it was a legally
permissible subject for the vote of citizens. However, the finance officer has no such
authority under this State’s statutory or decisional laws.
[¶20.] The role of the finance officer, as outlined in the administrative rules,
is focused on the petition’s format and the counting of valid signatures.
Significantly, her role under ARSD 5:02:08:00 is identical regardless of what type of
petition is submitted. This further suggests that she has no mandate to examine
whether the subject matter in the petition is proper for the particular form being
used. When a petition is in a form authorized by regulations, contains the
minimum number of valid signatures, and each sheet of the petition has an
identical heading and is verified by the circulator, the finance officer has a clear
duty to certify the petition and present it to the city council.
[¶21.] The petition submitted by Citizens was in a form authorized by the
regulations. There are no allegations of deficiencies in the heading, verification, or
number of signatures. Consequently, Bueno had a clear duty to act under the
regulation to certify the petition and present it to the city council.
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[¶22.] Once a “petition signed by fifteen percent of the registered voters . . . is
presented requesting that an election be called to vote upon the proposition of
employing a city manager, the governing body shall call an election for that
purpose.” SDCL 9-10-1 (emphasis added). Based on a plain reading of the statute,
the city council’s duty to call an election is triggered if (1) they receive a petition
signed by fifteen percent of the registered voters and (2) the petition requests an
election on the proposition of employing a city manager.
[¶23.] This case presents a unique procedural posture. Because the city
finance officer declined to certify the petition, it was not presented to the city
council in the manner anticipated by the statutory scheme. Nevertheless, this
petition was considered by the city council as if it had been presented, as evidenced
by their discussion of the matter at a special city council meeting that resulted in
directing the finance officer to neither validate nor invalidate the petition. It is
equally evident that the city council misperceived its clear duty under the statute.
[¶24.] Neither the finance officer nor the city council had the authority to
delay the scheduling of an election to vote on the submitted petition. Their
attempts to do so were premised on their mistaken belief that SDCL 9-10-1 does not
allow citizens to request an election on whether the City should no longer utilize a
city manager. Instead, they contend that a city manager can only be removed under
SDCL 9-10-11.
[¶25.] SDCL 9-10-11 specifies that a city’s governing body possesses the
authority to remove a person appointed as the city manager. It does not restrict the
citizens’ ability to petition for an election on the issue of whether the city should
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utilize a city manager. Instead, SDCL 9-10-1, which authorizes an election to
consider “the proposition of employing a city manager,” encompasses elections to
add and remove the city manager position. This statutory use of the phrase
“proposition of employing a city manager” is noteworthy. With it, the Legislature
has not restricted the petition question to relate solely to employing a city manager
initially. The “proposition of employing a city manager” is broader and could fairly
relate to a decision by the voters to revert to not employing a city manager.
[¶26.] While the petition here stated it was brought under SDCL 9-11-6, the
statute governing petitions proposing a change in the form of government, it is clear
that the petitioners’ intent was to hold an election on the question of removing the
city manager position. A person signing the petition would understand that the
petition was seeking to eliminate the city manager position from the City’s
government. Such a petition is statutorily authorized under SDCL 9-10-1. The
same was true of the 2007 petition.
[¶27.] SDCL 2-1-11 requires petitions to be “liberally construed, so that the
real intention of the petitioners may not be defeated by a mere technicality.”
Although this provision applies only to Chapter 2-1 governing petitions for
initiatives and referendums, the principle of liberal construction should be used
here as well. See Sorenson v. Rickman, 486 N.W.2d 259, 262 (S.D. 1992)
(determining that the election contest statutes were the proper way to challenge an
election and stating in the context of a challenge to an election after the vote that
“when the will of the voters can be ascertained, courts should uphold the will of the
voters.”). The petition circulated by Citizens was the same as previously used in the
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2007 election to create the city manager position. There is no indication that an
individual signing the petition would not understand that the real intention of the
petitioners was to hold an election to remove the city manager position despite the
citation of the incorrect statute.
[¶28.] That is not to say that the corresponding elections for a change in the
form of government and the question of employing a city manager are
interchangeable, as there are procedural differences governing elections under
SDCL 9-11-6 and 9-10-1. 7 In this case, the petitioners intended to call an election
on whether to eliminate the city manager position. Although the petition cited
“SDCL § 9-11-6 and other applicable law,” the type of election intended was
authorized under SDCL 9-10-1. Consequently, the election must be held using the
process and timing requirements identified in SDCL 9-10-1.
[¶29.] Because a petition to remove the city manager position was presented
to the city council, and the petition requested an election on the proposition of
employing a city manager, the city council had a clear duty to schedule an election.
We remand to the circuit court to enter a writ of mandamus directing the city
council to schedule and hold an election consistent with SDCL 9-10-1 as presented
in the petition. 8
7. For example, under SDCL 9-11-6, the election must be held within fifty days from the filing date of the petition or at the annual municipal election if filed after January 1. An election for employment of a city manager under SDCL 9-10-1 is to be held at “the next annual municipal election or the next general election, whichever is earlier.”
8. The City contends that removing the position of city manager could potentially violate the due process rights of the individual occupying the (continued . . .) -13- #30008, #30163
[¶30.] Our resolution of the preceding issues renders moot the other issues
raised by the parties. This decision also renders moot the issues raised in the quo
warranto action submitted to this Court in the consolidated appeal #30163, Bohn v.
City of Sturgis.
Attorney Fees
[¶31.] Finally, Citizens have requested costs and attorney fees in this case
and the associated appeal of Bohn v. City of Sturgis. They seek attorney fees for
both appeals and the fees incurred at the circuit court in both actions. They base
their claim on SDCL 15-26A-87.3 and SDCL 15-17-51.
[¶32.] SDCL 15-26A-87.3 authorizes the recovery of appellate attorney fees
“in actions where such fees may be allowable[.]” (Emphasis added.) Citizens have
not cited any authority that would have allowed them to recover their attorney fees
in the circuit court. Therefore, they are not entitled to appellate attorney fees under
SDCL 15-26A-87.3.
[¶33.] SDCL 15-17-51 authorizes recovery of reasonable attorney fees for
actions that are “frivolous or brought for malicious purposes[.]” The defenses the
City and its various officers presented in these cases were not “frivolous or brought
for malicious purposes.” Citizens are not entitled to the attorney fees they have
requested. However, as the prevailing party, they are entitled to costs under SDCL
15-30-6.
________________________ (. . . continued) office. The potential liability and any other repercussions from the elimination of the office of city manager are all matters that may be considered by the voters when casting their votes.
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[¶34.] JENSEN, Chief Justice, and KERN and SALTER, Justices, concur.
[¶35.] DEVANEY, Justice, concurs specially.
DEVANEY, Justice (concurring specially).
[¶36.] I agree that the circuit court erred in denying Citizens the mandamus
relief they requested, namely the scheduling and holding of an election on their
petition pursuant to the applicable laws. However, I write specially to address the
circuit court’s erroneous determination that it is not possible for Citizens to propose,
via a petition to change the City’s form of government, to “do away with the position
of city manager.” In so holding, the court focused solely on the language of SDCL 9-
2-3, which states: “Each municipality shall be governed by a board of trustees, a
mayor and common council, or by a board of commissioners. A city manager may
serve with any of the forms of government.” Although the court acknowledged that
each form of government referenced in the statute may or may not include a city
manager, the court concluded that doing away with the city manager position would
not change a city’s form of government. I disagree with this overly narrow
interpretation of SDCL 9-2-3.
[¶37.] When SDCL 9-2-3 is considered in pari materia with the statutes in
other chapters of Title 9 that more specifically set forth the structure and
composition of municipal governance, it is apparent that the forms of government
identified in Title 9 depend on the presence or absence of a city manager. For
example, SDCL 9-9-1 directs that “the board of commissioners” in a commission-
governed municipality without a city manager, “shall consist of the mayor and two
or four commissioners elected at large.” But if the voters authorize the employment
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of a city manager in a commission-governed municipality, SDCL 9-10-5 requires
that there be nine commissioners, and SDCL 9-10-6 states that within sixty days
after an election directing the employment of a city manager, a special election shall
be called and held to elect the nine commissioners. Also, the duties and powers of
the mayor differ depending on whether a city utilizes a city manager. In the
aldermanic-governed municipality without a city manager (the form of governance
proposed by the petition here), the mayor does not vote unless there is a tie among
the aldermen, and the mayor has the power to veto ordinances and resolutions
passed by the council. SDCL 9-8-3. However, if there is a city manager, the mayor
has the same powers and duties as an alderman at large and has no right of veto.
SDCL 9-10-7. Additionally, some of the powers and duties of the mayor are
delegated to the city manager when an aldermanic-governed municipality includes
a city manager. Compare SDCL 9-8-3 (the mayor ensures “that the laws and
ordinances are faithfully executed[,]” keeps the council apprised of affairs of the
municipality, and recommends measures for its consideration), with SDCL 9-10-15
(vesting these powers and duties with the city manager). Notably, SDCL 9-10-18
provides that statutes governing municipalities that are inconsistent with those in
chapter 9-10 are “inapplicable to municipalities employing a city manager.”
[¶38.] Because the manner in which a city government is structured and
operates is unquestionably dependent on whether or not the city employs a city
manager, it is hard to conceive how a decision to remove a city manager position
would not effect a change in the form of government. Thus, contrary to the circuit
court’s view, a petition seeking to change the City’s form of governance from
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aldermanic with a city manager to aldermanic without a city manager necessarily
seeks to change the City’s form of government. Further, although I do not believe
SDCL 9-2-3 is ambiguous, if the placement of the reference to a city manager in a
separate sentence is deemed to create an ambiguity when interpreting this statute,
a review of legislative history further supports that governance with a city manager
and governance without a city manager are distinct forms of government.
[¶39.] Prior to 2000, SDCL 9-2-3 stated that third class municipalities shall
be governed by boards of trustees. This statement was followed by a separate
sentence stating that “[f]irst and second class municipalities shall be governed
either by a mayor and common council, or by a board of commissioners, in each case
with or without a city manager.” SDCL 9-2-3 (1999) (emphasis added). The statute
did not contain the phrase “form of government[,]” and thus, it is apparent that the
use or non-use of a city manager describes different types of governance. In fact,
prior to 2000, SDCL 9-11-5 used the phrase “form of government” and included as a
form of government “the city manager plan.” 9
9. The 1999 version of SDCL 9-11-5 provided:
The voters of any first or second class municipality may change its form of government from the aldermanic to the commission or from the commission to the aldermanic, or may change the number of its commission, or change its form of government from the city manager plan to the aldermanic or commission plan, or any form of the aldermanic or aldermanic manager plan to any form of the commission or commission manager plan and vice versa by a majority vote of all electors voting at an election called and held as hereinafter provided. Municipalities under special charter may in like manner adopt any of the forms of government as hereinabove provided.
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[¶40.] The amendments to SDCL 9-2-3 in 2000 eliminated the references to
the different classes of municipalities and then restructured the two sentences.
What was the first sentence was combined with the second, and the reference to a
city manager serving with any of the other entities was then set off as a separate
sentence which referred to the identified options as “forms of government.” The
amendments to SDCL 9-11-5 likewise eliminated the references to the different
classes of municipalities and deleted the description of various forms of government,
while leaving the phrase “form of government.” However, nothing in the changes to
either statute altered the underlying recognition that the utilization of a city
manager is a form of government. Indeed, this Court has recognized the same. See
Kolda v. City of Yankton, 2014 S.D. 60, ¶ 14, 852 N.W.2d 425, 429 (referring to a
“city-manager form of government rather than an aldermanic form of government”
(emphasis added)).
[¶41.] But regardless of whether, as a matter of semantics, the decision to
employ or not to employ a city manager is deemed to be a “change in the form of
government,” I agree with the majority opinion that there is no question that
citizens of a municipality have a statutory right to have a say in this matter. SDCL
9-10-1 makes this clear. 10 However, because the Board of Elections has not
10. I disagree with the City’s view that because SDCL 9-10-11 states that a duly appointed manager may be removed by a majority vote of the governing body and includes a process that must occur beforehand, Citizens are somehow precluded from proposing that the City no longer employ a city manager. It is apparent when reading SDCL 9-10-11, particularly in conjunction with SDCL 9-10-12, which speaks to whom the governing body may designate as a replacement during the suspension of the existing manager, that these (continued . . .) -18- #30008, #30163
developed a separate petition form under ARSD 5:02:08:00 relating to the
proposition of employing a city manager despite the fact that SDCL 9-10-1
authorizes such a petition, there was nothing inappropriate with Citizens using the
most applicable available form, i.e., the one found under ARSD 5:02:08:23 relating
to changes in the form of government. Thus, in my view, there is no need to
“liberally construe” the petition here under SDCL 2-1-11, as the majority opinion
suggests, to reach the conclusion that the finance officer should have determined it
was in the proper form.
[¶42.] As to the next step—the question of what the finance officer’s duties
are after verifying that a petition is in the proper form—I do not agree with the
majority opinion’s conclusion that SDCL 9-20-4 has no application. This statute
governs what the finance officer must do when a “petition to initiate is filed” with
this officer. The majority opinion cites SDCL 9-20-1, which acknowledges that the
registered voters may propose ordinances and resolutions via an initiative petition,
but then concludes, without further explanation, that this case does not involve an
initiative petition. The terms “ordinance” and “resolution” are defined in SDCL 9-
19-1. In my view, Citizens’ petition fits within the broad definition of “resolution[,]”
which includes “any . . . direction of the governing body of a municipality of a special
or temporary character for the purpose of . . . effecting, or carrying out its
administrative duties and functions under the laws and ordinances governing the
________________________ (. . . continued) statutes are referring to the removal of a particular person, not the position itself.
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municipality[,]” because the removal of the city manager position would no doubt
affect how the City’s administrative duties and functions are carried out.
[¶43.] Ironically, despite the majority opinion’s conclusion that SDCL 9-20-4
is not applicable, it ultimately concludes that the finance officer must then do what
SDCL 9-20-4 directs—present the petition to the city council. Yet the
administrative rules under ARSD 5:02:08:00, which the majority opinion suggests
are the only applicable rules governing the duties of the finance officer, relate only
to what the finance officer must verify upon receipt of a petition. The
administrative rules do not address what the finance officer must do after verifying
a petition, nor do SDCL 9-10-1 or SDCL 9-11-6. Rather, these statutes only address
what the governing body must do once it receives the petition from the finance
officer. Notably, SDCL 9-20-4 is the only statute directing what the finance officer
must do after verifying a petition under the administrative rules (i.e., present it to
the governing body) and, importantly, when it must be done (i.e., at the governing
body’s first ensuing regular or special meeting).
[¶44.] As to what must happen after the petition is presented to the
governing body, I agree that the other provisions in Title 9 that relate more
specifically to the type of petition at issue must be applied. See Citibank, N.A. v.
South Dakota Dep’t of Rev., 2015 S.D. 67, ¶ 21, 868 N.W.2d 381, 391 (applying our
well-established rule in which the more specific statute controls over more general
statutes). Therefore, I agree with remanding the matter for the circuit court to
enter a writ of mandamus directing the City Council to call an election in accord
with the provisions in SDCL 9-10-1.
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