Schulte v. Long

2004 SD 102, 687 N.W.2d 495, 2004 S.D. LEXIS 170

• Court: South Dakota Supreme Court
• Decided: September 3, 2004
• Docket: None
• Status: Published

Opinions

GILBERTSON, Chief Justice.

[¶ 1.] The issue on appeal is whether the Attorney General exceeded his statutory authority by including a statement in the ballot explanation for 2004 Initiated Measure 1 that, if adopted, the measure would exempt food from state and municipal sales and use taxes “and eliminate this source of revenue.” The circuit court held that the phrase “and eliminate this source of revenue” in the Attorney General’s explanation is a negative editorial statement outside the statutory authority granted to him under SDCL 12-13-9. We disagree, however, and conclude that the statement falls within authority granted to the Attorney General by SDCL 12-13-9. Consequently we reverse the judgment and order issuing writ of certiorari.

FACTS

[¶ 2.] On May 4, 2004 Jason Schulte, the current executive director of the South Dakota Democratic Party, filed' an initiative petition in the Secretary of State’s office. The language in the initiated measure was proposed by Schulte. According to the petition, the voters of the State of South Dakota are being asked to approve or reject “An act to exempt food from sales and use taxes.” It proposes to amend SDCL ch. 10-45 (Retail Sales and Service Tax) and SDCL ch. 10-46 (Use Tax) by adding sections providing “There are exempted from the provisions of this chapter and the computation of the tax imposed by it, the gross receipts from the sale of food.” The proposed law also defines what is and is not food. The law proposed in the petition is now designated “Initiated Measure 1.”¹

[¶ 3.] On July 26, 2004, pursuant to SDCL 12-13-9, the Attorney General delivered an explanation of Initiated Measure 1 to the Secretary of State. It provided:

ATTORNEY GENERAL

2004 BALLOT EXPLANATION

INITIATED MEASURE 1

Title: An act to exempt food from sales and use taxes.

Explanation:

The state collects a sales and use tax on the sale of food. Many cities and towns also collect a municipal sales and use tax on the sale of food.

Initiated Measure 1, if adopted, would exempt food from state and municipal sales and use taxes, and eliminate this source of revenue.

A vote “Yes” will change state law.

A vote “No” will leave state law as it is.

The Secretary of State delivered a certified true and correct copy of Initiated Measure 1 as well as the statement, title, explanation and recitation required by SDCL 12-13-9 to each county auditor on August 9, 2004. SDCL 12-13-1.

[¶ 4.] Schulte, the original sponsor of Initiated Measure 1, applied to the circuit court for a writ of certiorari. He objected to the phrase “and eliminate this source of revenue” in the ballot explanation. He contended that by including this language in the ballot explanation the Attorney General exceeded the authority granted by SDCL 12-13-9.

[¶ 5.] The circuit court entered an order granting the writ of certiorari. It ordered the Attorney General and Secretary of State to direct the county auditors not to print the ballots for the November 2, 2004 election until the issue was resolved.

[¶ 6.] The circuit court heard the matter on August 25, 2004, entered a memorandum decision on August 26, 2004, and filed its judgment and order issuing writ of certiorari on August 27, 2004.

[¶ 7.] The circuit court concluded that the contested language in the explanation constituted a negative editorial statement. The court explained:

The explanation implies that a “yes” vote will strangle state and municipal budgets. It also speculates that the legislature will not replace the revenue affected by the ballot measure. The implication is editorial and negative and the speculation is unwarranted and improper.

The attorney general’s addition of the practical effect of the initiated measure to the legal effect only states one of the many practical effects. There are many other possible detrimental and beneficial effects. Some are obvious and others are conjectural. Listing one practical effect to the exclusion of others is editorial.

In the recent past, the attorney general has remained out of the political fray in explaining ballot measures with revenue consequences. The attorney general’s explanation of the proposed repeal of the video lottery read: “The Constitution authorizes legislative enactment of video lottery. Amendment D removes that authority and will repeal all video lottery laws.” There was no mention that repeal of the video lottery would eliminate that source of revenue. The attorney-general’s explanation of the proposed repeal of the state inheritance tax read: “The State currently imposes inheritance taxes. Amendment C would repeal the state tax on any inheritance on the property of anyone who dies on or after July 1, 2001, and would prohibit the Legislature from enacting a tax on any inheritance.” There was no mention that repeal of the inheritance tax would eliminate that source of revenue. The present appearance of the “eliminate this source of revenue” language in the attorney general’s explanation of Initiated Measure 1 means either the attorney general did not adequately explain the legal effect of the video lottery and inheritance tax ballot measures or it is an editorial comment unrelated to the legal effect of the initiative.

An example illustrates the editorial nature of the remainder of the statement. Governor Rounds has stated publicly that repeal of the sales tax on food will cut taxes by $42,000,000 to the state and $18,000,000 to municipalities (total tax savings of $60,000,000). According to the U.S. Census Bureau, the 2003 estimated population of South Dakota is 764,844. Therefore, adoption of the initiative would save each South Dakotan $78.45 in taxes. Saving taxes is no more a legal effect of passage of the initiative than eliminating revenue. Yet if the attorney general’s explanation said “lower taxes” instead of “eliminate revenue,” the explanation would cast a more favorable light on the initiated measure. Both explanations are true. Both are matters of fact and not legal effect. Both are editorial and improper.

The legal effect of the initiated measure which is to “exempt food from state and municipal sales and use taxes” is correctly stated. The negative editorial statement about eliminating revenue is outside the statutory authority granted to the attorney general under SDCL 12-13-9. (footnotes omitted).

[¶ 8.] It ordered the Attorney General to provide a revised explanation to the Secretary of State which omitted the language “and eliminate this source of revenue.” It ordered the Secretary of State to provide the revised explanation to the county auditors.

[¶ 9.] The Attorney General and Secretary of State filed a notice of appeal on August 27, 2004. Because county auditors must have official ballots printed by September 21, 2004 when absentee voting begins, the Attorney General and Secretary of State asked this Court to resolve the issue no later than September 7, 2004 so there would be a reasonable time to print ballots. The briefing schedule was expedited. After full consideration we announce our decision today, September 3, 2004.

ANALYSIS AND DECISION²

[¶ 10.] The full text of initiated measure is not printed on the election ballot. Instead SDCL 12-13-11 requires:

The title, explanation, recitation, place for voting, and statement as required by this chapter shall be printed on the ballot in lieu of the law, measure, eonstitu-tional amendment, or other question to be submitted to a vote of the people. All proposed constitutional amendments to be submitted at an election shall be placed on one ballot and all initiated measures or referred laws upon a separate ballot.

Pursuant to SDCL 12-13-9 “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 Tes’ or ‘No’ vote.” SDCL 12-13-9 further provides:

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.

[¶ 11.] In deciding the matter before us, we cannot take a side in the debate on the merits of the ballot issue. We also cannot allow that debate to enter the voting booth on the face of the ballot. Our prior cases have examined this statute as to what it requires and what it does not allow. The explanation must be factually accurate, legally accurate, concise, must not address collateral, theoretical or potential consequences of approval or disapproval by the voters, must not be a statement of personal opinion and must not attempt to advocate for or against the ballot question. See generally Hoogestr-aat v. Barnett, 1998 SD 104, 583 N.W.2d 421. However within this legal framework, the Attorney General is granted discretion as to how to author the ballot statement. Gormley v. Lan, 88 N.J. 26, 438 A.2d 519, 525 (1981). Moreover this Court’s function is a limited one. We merely determine if the Attorney General has complied with his statutory obligations and we do not sit as some type of literary editorial board.

[¶ 12.] In Hoogestraat this Court considered whether a ballot explanation satisfied the requirements of SDCL 12-13-9. We noted that:

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).

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.

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. , 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.

Hoogestraat, 1998 SD 104, ¶ 10-12, 583 N.W.2d 421, 424.

[¶ 13.] In Hoogestraat we concluded that the explanation that Proposed Constitutional Amendment E “could result in successful lawsuits against the State of South Dakota, under the U.S! Constitution” went beyond the authority granted by SDCL 12-13-9. We said that the explanation

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 not appropriate to the political campaign and education process leading up to the election, (footnote omitted).

Hoogestraat, 1998 SD 104, ¶ 13, 583 N.W.2d 421, 424.

[¶ 14.] In this case the ballot explanation provides that “Initiated Measure 1, if adopted, would exempt food from state and municipal sales and use taxes, and eliminate this source of revenue.” The circuit court considered the phrase “eliminates this source of revenue” to be factual, but held that it created negative implications and speculations- and ignored “other possible” effects, whether beneficial or detrimental.

[¶ 15.] We initially observe that the proponents of Initiated Measure 1 drafted the title of the measure, “An act to exempt food from sales and use taxes.” The proponents also controlled the purpose of the measure, “There are exempted from the provisions of this chapter and the computation of the tax imposed by it, the gross receipts from the sale of food.” The Attorney General’s ballot explanation uses both when it titles Initiated Measure 1 “An act to exempt food from sales and use taxes” and explains, in part, “Initiated Measure 1, if adopted would exempt food from state and municipal sales and use taxes[.]”

[¶ 16.] The explanation goes on to state that Initiated Measure 1, if adopted, would “eliminate this source of revenue.” Hoo-gestraat warned that conjecture as to possible collateral, theoretical or potential consequences of a change in existing law had no place in a ballot explanation. 1998 SD 104 at ¶ 12-13, 583 N.W.2d 421, 424. The explanation of Initiated Measure 1, however, provides none of this. Rather, it is a narrowly crafted statement of “the purpose and legal effect”, SDCL 12-13-9, of Initiated Measure 1.³ The purpose of Initiated Measure 1, as the proponents petition -clearly provided, is to “exempt food from state and municipal sales and use taxes.” The legal effect of exempting food from sales and use taxes is to eliminate revenue formerly generated from the taxation of food. Thus the use of the phrase “eliminate this source of revenue” uses plain, neutral language to accurately explain the direct legal effect of the action proposed by the initiative.⁴ Schulte now finds fault with the Attorney General’s failure to state that not all food will be subject to the sales tax repeal and thus his phrase “eliminate this source of revenue” is inaccurate and overstates the potential loss in revenue to the State and its subdivisions. However Schulte is bound by the title to the act which he, and not the Attorney General authored, “An act to exempt food from sales and use taxes” without any reference to potential exemptions.

[¶ 17.] The circuit court erred by concluding that the disputed phrase “and eliminate this source of revenue” was the equivalent of “revenue would be eliminated.” The court either overlooked the word “source” in the disputed phrase or read “source” out of the explanation.

[¶ 18.]' Much of the argument and a substantial portion of the circuit court’s analysis in this case focus on what is implied or suggested by the Attorney General’s lánguage. We cannot here be concerned with implication or suggestion. What is implied or suggested by the language used will obviously lie-in the eye of the - beholder and will necessarily vary from reader to reader and voter to voter. In statutory analysis, we would state that we cannot be concerned with what the legislature should have said or might have said, but what it did say. See e.g. State v. Galati, 365 N.W.2d 575, 578 (S.D.1985). Much the same is true here. We cannot be concerned with what the Attorney General should have said or could have said or might have said or what is implied or suggested by what he did say. Rather we must focus on the language chosen and whether it is an accurate statement of how the , proposed initiative changes existing law.

[¶ 19.] In addition the circuit court observed that the absence of the “eliminate this source of revenue language” in the Attorney General’s ballot explanation of the 2000 proposed repeal of video lottery and the 2000 proposed repeal of the inheritance tax means “either the attorney general did not adequately explain the legal effect of the video lottery and inheritance tax measure or it is an editorial comment unrelated to the legal effect of the initiative.”

[¶ 20.] The Attorney General attempted to use prior ballot explanations as precedent for the disputed language in Constitutional Amendment E. Because these explanations were never challenged we expressed no opinion on whether the language in the prior ballot explanations was proper under SDCL 12-13-9. Hoo-gestraat, 1998 SD 104 at ¶ 13, fn. 4, 583 N.W.2d 421, 424 at fn. 4. For the same reason we express no opinion on the video lottery and inheritance tax explanations. We simply observe that the use of different language in a ballot explanation does not render that language beyond the authority of SDCL 12-13-9 as long as the explanation represents an accurate statement of how the proposed initiative changes existing law.

[¶ 21.] The judgment and order issuing writ of certiorari is reversed.

[¶ 22.] MEIERHENRY, Justice, concurs. [¶ 23.] ZINTER, Justice, concurs with writing. [¶ 24.] SABERS and KONENKAMP, Justices, dissent.

1 . The full text of Initiated Measure 1 is appended.

2 . The Attorney General also jurisdictionally challenges the right of the circuit court to enter relief in this matter in the form of a writ of certiorari. Under SDCL 21-31-1 a writ of certiorari may be granted by a circuit court when an officer exceeds his or her jurisdiction. Thus in this case, the writ is appropriate to determine whether or not the Attorney General properly complied with his legal duties under SDCL 12-13-9. Moreover, cer-tiorari was found to be a proper method of addressing the scope of SDCL 12-13-9 in Hoogestraat.

3 . While SDCL 12-13-9 does not allow the Attorney General to render a full-blown legal opinion on the face of the ballot, it does allow an explanation of the "legal effect” of the proposal. Hoogestraat.

Clearly the language "legal effect” cannot be read out of the statute. The question then becomes what is meant by the statutory language "legal effect.” The word "effect” is defined as "[t]hat which is produced by an agent or cause; result; outcome; consequence.” Black's Law Dictionary 514 (6th ed 1990). "Legal” is defined as "of or pertaining to the law.” Id. at 892. Thus, the plain meaning of "legal effect” includes consequences of or pertaining to the law. (footnote omitted). Hoogestraat, 1998 SD 104 at ¶ 27, 583 N.W.2d at 426 (Amundson, J., dissenting).

"Purpose” is defined as "That which one sets before him to obtain or accomplish or obtain ... the term is synonymous with the ends sought, an object to be obtained. Black’s Law Dictionary 862 (5th ed Abridged 1991).

The purpose of taxation is the raising of revenue for governmental purposes. Brink v. Dann, 33 S.D. 81, 103, 144 N.W. 734, 737 (.1913). The legal effect of exempting food from sales and use taxes is eliminating this source of revenue.

4 . Under the circuit court's analysis the Attorney General would be deprived of his discretion as, to how to author the ballot explanation, see ¶11, and would be relegated to merely regurgitating the language in the title of the proposed initiative. This would render SDCL 12-13-9’s requirement of explaining the purpose and legal effect of a measure a nullity.