Hoogestraat v. Barnett

1998 SD 104, 583 N.W.2d 421, 1998 S.D. LEXIS 107, 1998 WL 560234

• Court: South Dakota Supreme Court
• Decided: September 4, 1998
• Docket: 20670, 20672
• Status: Published

Opinions

SABERS, Justice.

[¶ 1.] The narrow question in this appeal is whether the statutory requirement that the Attorney General succinctly describe the “purpose and legal effect” of proposed 1998 Constitutional Amendment E permits a statement that the proposed amendment “could result in successful lawsuits against the State of South Dakota, under the U.S. Constitution.” We conclude that the statement exceeds the authority granted by SDCL 12-13-9 and affirm the judgment and order issuing writ of certiorari.

FACTS

[¶ 2.] On May 29, 1997, Dennis Wiese and Charles Johnson filed an initiated constitutional amendment petition in the Secretary of State’s office. It is designated “Constitutional Amendment E”¹ and proposes to add four new sections concerning ownership and interest in farming to Article XVII of the Constitution of the State of South Dakota.

[¶ 8.] The Attorney General delivered an explanation of Constitutional Amendment E to the Secretary of State, SDCL 12-13-9, who, in turn, delivered it, as well as other statutorily required materials to each county auditor. SDCL 12-13-1. The Attorney General’s explanation of Constitutional Amendment E provides:

Attorney General Explanation: Currently, the Constitution does not restrict the use or ownership of farmland. However, the Legislature has prohibited some corporations from engaging in farming, and in certain hog production activities.

Amendment E would create constitutional prohibitions. Many corporations, limited partnerships, limited liability companies, and other business entities would not be permitted to own farmland or engage in farming or livestock production.

Amendment E does not affect current ownership or leasing of farmland, or livestock production, by these businesses. However, it would prohibit them from farming new land, or buying, leasing, or contracting for any new interest in farm lands, farming or livestock production. The Amendment may potentially prevent these businesses from renewing current leases.

Amendment E would not affect qualified family farm corporations, nonprofit corporations, certain ag co-ops, research farms, alfalfa leases, livestock futures, certain custom farm work, security interests, the purchase of land for nonfarm purposes, and other activities.

Amendment E could result in successful lawsuits against the State of South Dakota, under the U.S. Constitution.

A vote “Yes” will prohibit many types of businesses from owning farmlands. It will also prevent these businesses from having interests in agricultural contracts, farmlands, or operations.

A vote “No” will leave the constitution as it is.

(emphasis added).

[¶ 4.] Craig L. Hoogestraat,- a Turner County farmer and hog producer, applied to the circuit court for an alternative writ of mandamus. He objected to the sentence in the above ballot explanation which said “Amendment E could result in successful lawsuits against the State of South Dakota, under the U.S. Constitution” on the grounds that it exceeded the authority granted to the Attorney General by SDCL 12-13-9. The circuit court entered an order granting alternative writ of mandamus and ordered the Attorney General and Secretary of State to direct the county auditors not to print ballots for the November 3, 1998, election until the issue was resolved.

[¶ 5.] At the hearing on the matter, the trial court allowed Thomas Redlin, et al, a membership coalition of agricultural, business, and civic groups to intervene. The court also converted the proceeding from mandamus to certiorari. Neither Hoogestr-aat, the Attorney General, nor the Secretary of State objected to the conversion.

[¶ 6.] Following argument, the circuit court entered a judgment and order issuing a writ of certiorari. The court concluded that:

this disputed sentence of the ballot explanation does not involve an explanation of the constitutional amendment’s provisions. Rather, it involves an opinion of a possible collateral consequence occurring only upon adoption of the amendment. Furthermore, the disputed portion of the explanation is likely to create prejudice against the proposed amendment. This Court concludes that SDCL 12-13-9 was not intended to include ballot explanations of possible collateral consequences especially where the explanation is likely to create prejudice either for or against an amendment. This Court, therefore concludes that the disputed portion of the ballot explanation for Constitutional Amendment E was outside the scope of the Attorney General’s statutory authority, and that certiorari is an appropriate remedy.

The Attorney General and Secretary of State were ordered to notify each county auditor and remove the disputed language from the ballot explanation.

[¶ 7.] The Attorney General and Secretary of State filed a notice of appeal to this Court on August 27, 1998. The Intervenors filed a notice of appeal the next day. County auditors must have certified ballot questions printed as official ballots by September 22, 1998, when absentee voting starts. SDCL 12-16-1. To do so, the Attorney General and Secretary of State advised this Court that the issue on appeal needed to be resolved by September 8, 1998, in order to allow a reasonable time to print ballots. On application, we expedited the briefing schedule and, after due consideration, announce our decision today, September 4,1998.

ANALYSIS AND DECISION

[¶ 8.] The full text of a proposed amendment to the constitution is not printed on the election ballot in South Dakota. SDCL 12-13-11. Instead, the material printed on the ballot consists of the title, explanation, recitation, place for voting, and the statement required by SDCL ch 12-13. Id. The Attorney General is required to prepare this material. SDCL 12-13-1², SDCL 12-13-9.

[¶ 9.] According to SDCL 12-13-9,

Before the fourth Tuesday in July, the attorney general shall deliver to the secretary of state the statement, the title, the explanation, and a clear and simple recitation of the effect of a “Yes” or “No” vote. The explanation shall state succinctly the purpose and legal effect of the proposed amendment to the Constitution, the initiated measure, or the referred law. The explanation shall be a clear and simple summary of the issue and may not exceed two hundred words in length. On the printed ballots, the title shall be followed by the explanation and the explanation shall be followed by the recitation, (emphasis added).

While at least twenty-eight states have ballot explanation requirements,³ South Dakota’s requirement that the Attorney General state the “legal effect” of a proposed constitutional amendment is unique. Consequently, court opinions from other jurisdictions construing ballot explanations in the context of their specific statutory directives provide minimal guidance.

[¶ 10.] This Court has, however, considered whether a ballot statement satisfied the requirements of SDCL 12-13-9 which, at that time, required the Attorney General to prepare a “concise” statement of “the purpose and legal effect of each proposed constitutional amendment ... particularly with reference to existing law.” Barnhart v. Herseth, 88 S.D. 503, 513, 222 N.W.2d 131, 136 (1974).

[¶ 11.] The Barnhart court noted that the language “purpose and legal effect” led to the conclusion that a ballot explanation of a proposed constitutional amendment “was to be identified to the electorate in easily understood language enabling the voters to distinguish this amendment from the other ... propositions on the ballot[.]” Barnhart, 88 S.D. at 514, 222 N.W.2d at 137. The court rejected the argument that a ballot explanation must educate the electorate since voters are presumed familiar with proposed amendments through the publicity given the amendments in the time leading up to the election. Id. “[T]he basic purpose of a ballot statement is to identify an amendment to an informed electorate rather than to educate it.” Id., 88 S.D. at 515, 222 N.W.2d at 137.

[¶ 12.] Consequently the focus of a ballot explanation is restricted. It must clearly, simply, and succinctly identify and summarize the purpose and legal effect of a proposed amendment to an already educated and informed voter who has ten minutes in which to vote. SDCL 12-13-9; SDCL 12-18-15; Barnhart, 88 S.D. at 514, 222 N.W.2d at 137. The legal effect that must be succinctly stated refers to the result that the proposed constitutional amendment will have upon existing law. See Black’s Law Dictionary 514 (6th ed 1990). It does not refer to collateral, theoretical or- potential consequences which may or may not occur.

[¶ 13.] In this case, the Attorney General’s statement that Proposed Constitutional Amendment E “could result in successful lawsuits against the State of South Dakota, under the U.S. Constitution” goes beyond the narrow authority granted by SDCL 12-13-9 and clearly exceeds the purpose of a ballot explanation. It is not a statement of how Proposed Constitutional Amendment E would change existing law. Rather, it is conjecture as to possible consequences of a change in existing law. As such, it has no place in a ballot explanation appearing on the general election ballot. It is purely a statement of opinion which is more appropriate to the political campaign and education process leading up to the election.⁴

[¶ 14.] The circuit court was” correct in concluding that the disputed portion of the ballot explanation for 1998 Proposed Constitutional Amendment E was outside of the statutory authority granted to the Attorney General under SDCL 12-13-9.

[¶ 15.] The judgment is affirmed.

[¶ 16.] MILLER, C. J. and KONENKAMP and GILBERTSON, JJ., concur with writing. [¶ 17.] AMUNDSON, J., dissents.

1 . The full text of proposed Constitutional Amendment E is appended.

2 . SDCL 12-13-1 provides:

The secretary of state, at least twelve weeks prior to the general election, shall deliver to each county auditor a certified copy of each initiated measure, referred law, or proposed amendment to the Constitution to be voted on at the election, together with a statement, title, explanation, and recitation of the effect of a “Yes” or "No” vote to be published preceding the text of the initiative, referendum, or proposed amendment. The attorney general shall prepare each statement, title, explanation, and recitation.

3 . Alaska Stat. § 15.45.180; Ariz.Rev.Stat. Ann. § 19-125; Ark.Code Ann. § 7-9-114; Cal. State Elections Code § 9051; Colo.Rev.Stat. § 1-40-106; Fla. Stat. ch. 101-161; Idaho Code § 34-1809; Ill.Rev.Stat. ch. 10, para. 5/16-6; Ky.Rev. Stat. Ann. § 118.415; Me.Rev.Stat. Ann. tit. 21-A, § 906; Md.Code Ann. Elect. Art. 33, § 16-6; Mass. Gen. Laws Ann. ch. 54, § 53; Mich. Comp. Laws. § 6.1474; Miss.Code Ann. i 23-17-9; Mo. Rev.Stat. § 116.160; Mont.Code Ann. § 13-27-312; Neb.Rev.Stat. § 32-1410; N.M. Stat. Ann. § 1-16-7; N.D. Cent.Code § 16.1-06-09; Ohio Rev.Code Ann. § 3519.21; Okla. Stat. Ann. tit. 34, section 9; Or.Rev.Stat. § 250.035; Utah Code Ann. § 20A-7-209; Wash. Rev.Code Ann. §§ 29.27.060, 29.27.074, and 29.27.076; Wyo. Stat. § 22-24-117.

4 . The Attorney General contends that.two current and one prior ballot explanation provide precedent for the language disputed in Constitutional Amendment E. These explanations, however, were never challenged.

We express no opinion on whether language in the ballot explanations for 1998 Proposed Constitutional Amendment A and 1998 Proposed Constitutional Amendment F is proper under SDCL 12-13-9. That language provides, "Amendment A may conflict with Amendment F. If both constitutional amendments pass and

are found to conflict with each other, one or both could be declared void." Nor do we consider the propriety of a 1990 ballot explanation concerning a proposed initiated measure which said, in part, "At the present time, one such facility would be closed by the initiative, until approved by the Legislature. If this facility is legally operating upon passage of this initiative, the question of whether the owners are entitled to compensation from the State will have to be addressed."