Hoogestrat v. Barnett

1998 SD 104
CourtSouth Dakota Supreme Court
DecidedSeptember 4, 1998
DocketNone
StatusPublished

This text of 1998 SD 104 (Hoogestrat v. Barnett) 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
Hoogestrat v. Barnett, 1998 SD 104 (S.D. 1998).

Opinion

Unified Judicial System

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Pierre, SD 57501-2596


CRAIG L. HOOGESTRAAT,
Applicant and Appellee,
v.
MARK BARNETT,

South Dakota Attorney General,
And Joyce Hazeltine, South Dakota Secretary of State,
Respondents and Appellants,
and
Thomas Redlin, South Dakota Pork Producers Council, Inc.,
South Dakota Cattlemen's Association, South Dakota Farm Bureau Federation,
South Dakota Soybean Association, South Dakota Corngrowers Association,
South Dakota Wheat, Inc., and Vote No on E Committee,
Intervenors and Appellants.

South Dakota Supreme Court
Appeals From The Sixth Judicial Circuit
Hughes County South Dakota
Hon. Steven L. Zinter, Judge
#20670, 20672 - Affirmed

Douglas E. Kludt, Churchill, Manolis, Freeman, Kludt & Shelton, Huron, SD
Attorneys for applicant and appellee.

Mark Barnett, Attorney General
Jeffrey P. Hallem, Roxanne Giedd
Assistant Attorneys General, Pierre, SD
Attorneys for respondents and appellants.

Jerome B. Lammers, Lammers, Lammers and Kleibacker, Madison, SD
Attorneys for intervenors and appellants.

Considered on Briefs Sep 3, 1998; Opinion Filed Sep 3, 1998

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"(fn1)  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.

[¶3] 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 Hoogestraat, 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

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Bluebook (online)
1998 SD 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoogestrat-v-barnett-sd-1998.