Heinemeyer v. Heartland, No. 24717.

CourtSupreme Court of South Dakota
Writing for the CourtBrown
Citation757 N.W.2d 772,2008 SD 110
PartiesJeffrey Ray HEINEMEYER, Plaintiff and Appellee, v. HEARTLAND CONSUMERS POWER DISTRICT, and Jerry Micheel, Merlin Van Walleghen, Jean Rave, Gary Olson, Edward Lamers, Dan O'Connor, Milton Freier, Roger Fritz, and Ron Anderson, as members of the Board of Directors of Heartland Consumers Power District, Defendants and Appellants.
Decision Date12 November 2008
Docket NumberNo. 24717.
757 N.W.2d 772
2008 SD 110
Jeffrey Ray HEINEMEYER, Plaintiff and Appellee,
v.
HEARTLAND CONSUMERS POWER DISTRICT, and Jerry Micheel, Merlin Van Walleghen, Jean Rave, Gary Olson, Edward Lamers, Dan O'Connor, Milton Freier, Roger Fritz, and Ron Anderson, as members of the Board of Directors of Heartland Consumers Power District, Defendants and Appellants.
No. 24717.
Supreme Court of South Dakota.
Considered on Briefs May 19, 2008.
Decided November 12, 2008.

[757 N.W.2d 773]

Wilson Kleibacker of Lammers, Kleibacker & Brown, LLP Madison, South Dakota, Attorneys for plaintiff and appellee.

Richard D. Casey and Ryland Deinert of Lynn, Jackson, Shultz & Lebrun, PC, Sioux Falls, South Dakota, Attorneys for defendants and appellants.

BROWN, Circuit Judge.


[¶ 1.] Heartland Consumers Power District (Heartland) appeals from an order and writ of mandamus finding that Jeffrey Ray Heinemeyer (Heinemeyer) was legally qualified to serve on the Heartland Consumers Power District Board of Directors (the Board) and requiring the Board to seat Heinemeyer on the Board. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Heartland is a public corporation and political subdivision of the State of South Dakota, with headquarters in Madison, South Dakota. Heartland is organized pursuant to the Consumers Power District Law, SDCL chs. 49-35 to 49-40, inclusive. Heartland is divided into ten subdivisions and covers a geographic area that stretches across most of the eastern half of South Dakota. Pursuant to SDCL ch. 49-36, Heartland's directors are elected by the voters of their respective subdivisions and serve a term of six years. Subdivisions 1 through 9 consist exclusively of rural areas and do not include any municipalities. Subdivision 10 of Heartland, however, consists exclusively of the municipalities of Groton, Volga, and Madison, South Dakota.

757 N.W.2d 774

[¶ 3.] In 2006 two candidates filed for the board position representing Subdivision 10: the incumbent, Anita Lowary, the City Finance Officer of Groton, and Heinemeyer, the City Finance Officer of Madison. Heinemeyer won the general election on November 7, 2006, receiving sixty percent of the vote for the director position from Subdivision 10.

[¶ 4.] Prior to November 1, 2006, Heinemeyer had been living in a house that he owned at 927 Jennifer Street in Madison. He sold the home during the fall of 2006 and turned over possession of the home to the buyers on November 1, 2006. On that same day, Heinemeyer moved out of the home on Jennifer Street and began staying at a new home he built east of Lake Madison, on Round Lake, at the address 27 Golf Drive, Wentworth, South Dakota. Heinemeyer's new home is located in Subdivision 8 of the Heartland Consumers Power District rather than Subdivision 10. Heinemeyer officially closed the sale of his house at 927 Jennifer Street on November 16, 2006.

[¶ 5.] On November 17, 2006, ten days after the election, Heinemeyer began sharing a one-bedroom apartment in downtown Madison, at the address 107 North Egan, Apartment 4, for $75 per month. At that time, the apartment was being rented by an acquaintance of Heinemeyer named Lonnie Lembke. Further, on January 3, 2007, Heinemeyer changed his voter registration, listed his "residence address" as 107 North Egan, Apartment 4 in Madison, and declared that he maintained his home at that address.

[¶ 6.] On December 19, 2006, Heartland's attorney notified Heinemeyer that the Board did not intend to seat him at their next regular meeting scheduled for January 9, 2007, because Heinemeyer moved his residence from Subdivision 10 to Subdivision 8. On December 28, 2006, Governor M. Michael Rounds executed a Certificate of Election for Heinemeyer declaring he was elected to the office of Heartland Consumers Power District, representing District 10 for a term of six years beginning January 1, 2007. Secretary of State Chris Nelson attested to the certificate. Subsequently, on January 4, 2007, Heinemeyer's attorney notified Heartland's attorney by letter of his demand that Heinemeyer be allowed to be sworn in as a member of the board at its January 9, 2007, meeting. At the January 9, 2007, meeting the Board voted unanimously not to seat Heinemeyer as a director of Subdivision 10 because he had moved his residence from Subdivision 10 to Subdivision 8.

[¶ 7.] Heinemeyer filed this action against Heartland in the Third Judicial Circuit claiming he was improperly removed as an elected director of the Heartland Consumers Power District-Subdivision 10. Following a court trial, the court found that Heinemeyer was legally qualified to serve on the Board. It filed an order and writ of mandamus requiring the Board to seat Heinemeyer. Heinemeyer was subsequently seated as a Heartland director in compliance with the order and writ, and Heartland and its individual board members now appeal that ruling to this Court.

[¶ 8.] Heinemeyer filed a motion to dismiss this appeal because the Board did not have a quorum to authorize the appeal. On February 22, 2008, this Court entered an order denying Heinemeyer's motion to dismiss. In his brief Heinemeyer renews his motion to dismiss this appeal, but does not raise additional grounds for his motion. We find no reason to revisit Heinemeyer's motion to dismiss and the February 22, 2008, order stands.

757 N.W.2d 775
STANDARD OF REVIEW

[A] writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear [.]" Baker v. Atkinson, 2001 SD 49, ¶ 16, 625 N.W.2d 265, 271. "It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right." Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242. To prevail, "the petitioner must have 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. The standard of review for the grant or denial of a writ of mandamus is abuse of discretion. Schafer v. Deuel County Bd. of Comm'rs, 2006 SD 106, ¶ 4, 725 N.W.2d 241, 243.

Woodruff v. Bd. of Com'rs Hand County, 2007 SD 113, ¶ 3, 741 N.W.2d 746, 747. This case, however, is dependent upon the interpretation of statutes. "Statutory interpretation and application are questions of law." Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citing Steinberg v. State Dep't of Military and Veterans Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599). This Court reviews questions of law under the de novo standard with no deference afforded the circuit court's decision. Id.

ANALYSIS AND DECISION

[¶ 9.] Whether the circuit court erred in ruling that Heinemeyer is a resident of Subdivision 10 of Heartland Consumers Power District, and is therefore legally qualified to serve as a director from that subdivision.

[¶ 10.] The principles of statutory construction are well founded:

`The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute.' Esling v. Krambeck, 2003 SD 59, ¶ 6, 663 N.W.2d 671, 675-76 (citation omitted). When interpreting a statute, we give plain meaning and effect to words and phrases. Hay v. Bd. of Comm'rs for Grant County, 2003 SD 117, ¶ 9, 670 N.W.2d 376, 379 (citing Esling, 2003 SD 59, ¶ 6, 663 N.W.2d at 676 (citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted))). We view the language of the statute as a whole, "`as well as enactments relating to the same subject.'" Moss, 1996 SD 76, ¶ 10, 551 N.W.2d at 17 (quoting U.S. West Communications, Inc. v. Public Utilities Com'n of State of S.D., 505 N.W.2d 115, 122-23 (1993)).

In re Montana-Dakota Utilities Co., 2007 SD 104, ¶ 10, 740 N.W.2d 873, 877.

[¶ 11.] SDCL chs. 49-35 through 49-40, inclusive, govern consumers power districts. SDCL 49-36-11 provides:

No person shall be qualified to hold office as a member of the board of directors of a consumers power district unless he or she shall be a voter of such district or, if such district be subdivided for election purposes as provided in this chapter, of the subdivision of which he or she shall be a voter. No person shall be qualified to be a member of more than one such district board.

(Emphasis added.) In other words, a member of a consumers power district who serves on the board of directors must be a voter of the district. Furthermore, if the district is subdivided, then the member must be a voter of the subdivision which he or she is elected to represent.

[¶ 12.] While SDCL ch. 49-36 does not further define the term "voter," SDCL 12-4-1 provides that every person who is qualified to register as a voter in

757 N.W.2d 776

South Dakota "shall be entitled to be registered as a voter in the voting precinct in which he resides." (Emphasis added.) SDCL 12-1-41 delineates the criteria for determining voting residence. It provides:

For the purposes of this title, the term, residence, means the place in which a person has fixed his or her habitation and to which the person, whenever absent, intends to return.

A person who has left home and gone into another state or territory or county of this state for a temporary purpose only has not changed his or her residence.

A person is considered to have gained a residence in any county or municipality of this state in which the person actually lives, if the person has no present intention of leaving.

If a person moves to another state, or to any of the other territories, with the intention of making it his or her permanent home, the person thereby loses residence in this state.

(Emphasis added.) In other words, a voting residence is the place in which a person has "fixed his or her habitation" and "whenever absent, intends to return." Id. Furthermore, a person gains voting residence in the place in which he or she "actually lives" and "has no present intention of leaving." Id.

[¶ 13.]...

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