Brendtro v. Nelson

2006 SD 71, 720 N.W.2d 670, 2006 S.D. LEXIS 133, 2006 WL 2327433
CourtSouth Dakota Supreme Court
DecidedAugust 9, 2006
Docket24139, 24162
StatusPublished
Cited by19 cases

This text of 2006 SD 71 (Brendtro v. Nelson) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brendtro v. Nelson, 2006 SD 71, 720 N.W.2d 670, 2006 S.D. LEXIS 133, 2006 WL 2327433 (S.D. 2006).

Opinions

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 S.D.Sess.L. 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 S.D.Sess.L. 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 N.W.2d 751 (S.D.1980).

[¶ 3.] Initiated Measure 4 sought to repeal all the statutory provisions that the legislature had passed authorizing video lottery games. 1993 South Dakota 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 N.W.2d 238 (S.D.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, S.D.Const., 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. [673]*673Laws 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 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 S.D.Sess.L. 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 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 N.W.2d 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 [674]*674the 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 constitutional power of initiative based upon this Court’s decision in Christensen v. Carson,

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Bluebook (online)
2006 SD 71, 720 N.W.2d 670, 2006 S.D. LEXIS 133, 2006 WL 2327433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brendtro-v-nelson-sd-2006.