Larson v. Hazeltine

• Decision Date: 08 August 1996
• Docket Number: No. 19748,19748
• Citation: 1996 SD 100,552 N.W.2d 830
• Parties: Gerald R. LARSON, Petitioner and Appellant, v. Joyce HAZELTINE, in her official capacity as Secretary of State for the State of South Dakota, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 830

552 N.W.2d 830

1996 SD 100

Gerald R. LARSON, Petitioner and Appellant, v. Joyce HAZELTINE, in her official capacity as Secretary of State for the State of South Dakota, Defendant and Appellee.

No. 19748.

Supreme Court of South Dakota.

Considered on Briefs Aug. 8, 1996.

Decided Aug. 8, 1996.

Paul S. Swedlund of Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, for petitioner and appellant.

Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, for respondent and appellee.

PER CURIAM.

¶1 Gerald Larson (Larson) appeals from an order quashing an alternative writ of mandamus and denying a peremptory writ of mandamus. We reverse.

FACTS

¶2 Larson is a proponent of an initiative drive which would require an election ballot to reflect a candidate's position on term limits (hereinafter referred to as "Initiative"). On May 6, 1996 a total of 999 petition sheets in support of the Initiative were received by the Secretary of State, Joyce Hazeltine. The Initiative was circulated by sixteen persons, including William Baisden (Baisden) and Russell Baggett (Baggett). Baisden and Baggett circulated 392 petition sheets, and it is these sheets which are at issue here.

¶3 Pursuant to administrative rules promulgated by the State Board of Elections (the Board), the Secretary of State's Office conducts a signature validation process to determine which signatures found on a petition sheet are valid, and to determine whether the circulator's verification is complete. This validation process is conducted by the state election supervisor, an employee of the Secretary of State's Office. An initiative petition must contain the signatures of at least five percent of the registered voters in South Dakota in order to be filed and placed on the general election ballot. Based on the official canvass of the 1994 gubernatorial election in which 311,613 votes were cast, at least 15,581 valid signatures are required for the Initiative to be placed on this fall's general election ballot. See SDCL 2-1-1, 2-1-5.

¶4 During the petition validation process, Chris Nelson (Nelson), state election supervisor, determined that the circulator's verification was not complete on the 392 petition sheets circulated by Baisden and Baggett. Specifically, the circulator's verification did not contain the name of the circulator's city and this information was not provided elsewhere on the petition sheet. The form for the circulator's verification specifically asks for, and provides space for, the printed name and "complete address" of the circulator, the circulator's county of voter registration and signature, date of signing, and place for the officer witnessing the oath to sign.

¶5 Baisden and Baggett each printed their names, their street address (3406 Idlewild Court), and the county in which they are registered to vote (Pennington), then signed and dated the verification form on each petition sheet. No signatures were counted on the 392 petition sheets circulated by Baisden and Baggett because their city was not provided. Consequently, the Secretary of State determined that the Initiative failed to achieve the required number of signatures. ¹ On May 15, 1996, the Secretary of State mailed a letter to Larson notifying him that the measure would not be placed on the ballot.

¶6 On June 18, 1996, Larson filed a petition for an alternative writ of mandamus, seeking to force the Secretary of State to place the Initiative on the ballot for the November 1996 general election. At a hearing on July 11, Nelson testified that he contacted the Pennington County Auditor where each of the men had recently registered to vote, and was able to determine the address each provided at the time they registered to vote. He also stated that there are seventeen communities located in Pennington County and that he was unaware of any community other than Rapid City which had a street named Idlewild Court. Nelson further testified that no one had challenged the validity of the petition signatures or circulators' affidavits. The Secretary of State conceded that there was no suspicion that any of the petition sheets or verifications were affected by fraud.

¶7 At the conclusion of the hearing on July 11, Circuit Court Judge Steven L. Zinter orally stated his decision. ² He concluded that the administrative rules require the circulator to provide a "complete address," that the name of the circulator's city is part of a "complete address," that failure to provide the name of the city was more than a technical defect, that the name of the circulator's city is an essential element, and that any other interpretation would "open the door to fraudulent and unverifiable petitions in the future." On August 1, 1996, Judge Zinter filed findings of fact and conclusions of law and its order quashing the alternative writ of mandamus and denying Larson's request for a peremptory writ of mandamus.

¶8 On August 2, 1996, Larson filed his notice of appeal. He sought expedited review based on the fact that the Secretary of State must certify the ballots to the county auditors before August 13, 1996. The Secretary of State did not object to Larson's motion, and we granted expedited review under SDCL 15-26A-2.

ISSUE

¶9 Should the Secretary of State be required to proceed with the signature validation process on 392 petition sheets in which the petition circulator did not list the circulator's city as part of the "complete address" required in the verification of the circulator?

¶10 Larson contends the Secretary of State should have validated the signatures on the 392 petition sheets circulated by Baisden and Baggett even though these two petition circulators did not identify their city of residence. He contends the verifications at issue substantially complied with the requirement that the circulators provide their "complete address" because they listed the street address and county of voter registration. We must determine: (1) whether there is a legal requirement for a complete address on the petition, (2) if there is such a requirement, what is required by the phrase "complete address," and (3) whether the information provided was sufficient to substantially satisfy the requirements.

¶11 As a preliminary matter, the Secretary of State contends that mandamus is the inappropriate form of relief because Larson does not have a clear legal right to have the Secretary proceed to verify the petitions at issue. This contention lacks merit. A petition for a writ of mandamus has been the manner in which proponents of initiated and referred measures have achieved review of similar claims to compel the Secretary of State to place their measure on the general election ballot. See, e.g., State ex rel. Coon v. Morrison, 61 S.D. 339, 249 N.W. 318 (1933). It is the appropriate method for review in this instance.

¶12 Our analysis begins with the statutory and administrative provisions governing the verification which must be provided by the circulator of a petition. SDCL 2-1-10 states:

Every person who circulates and secures signatures to a petition to initiate or submit to the electors any law pursuant to § 1, article III, of the Constitution, shall, before filing such petition with the officer in whose office it is by law required to be filed, make and attach to the petition an affidavit which shall be prescribed by the state board of elections. The affidavit must be witnessed by a notary public commissioned in South Dakota or other officer authorized to administer oaths pursuant to § 18-3-1. A petition circulator shall be a registered voter in South Dakota.

Both the petition and the sworn affidavit of the circulator are to be in the form prescribed by the Board. SDCL 2-1-6.2. See SDCL 12-1-9. The form for the affidavit or verification of the circulator is found at ARSD 5:02:08:07 and 5:02:08:00.03. If the circulator's verification is not completed or is improperly completed, the signatures on the petitions may not be counted, unless the missing information is completed elsewhere on the petition sheet. ARSD 5:02:08:00.01(b). These administrative rules stand on equal footing with statutes enacted by the legislature. Nist v. Herseth, 270 N.W.2d 565, 571 (S.D.1978).

¶13 As the circuit court concluded, the foregoing provisions make it clear that there is a legal requirement that the circulator of the petition provide a "complete address" in the verification. Larson does not dispute this conclusion.

¶14 The second question is, what is meant by the phrase "complete address"? The phrase is not defined in the applicable administrative rules or the statutes. "When a statute or rule does not define a term, it should be construed according to its accepted usage and a strained, unpractical, or absurd result should be avoided." Nelson v. State Board of Dentistry, 464 N.W.2d 621, 624 (S.D.1991) (citations omitted). "Administrative regulations are subject to the same rules of construction as are statutes. When regulatory language is clear, certain and unambiguous, our function is confined to declaring its meaning as clearly expressed." In re Grievance of Schroeder v. Department of Social Services, 1996 SD 34, p 10, 545 N.W.2d 223 (citations omitted).

¶15 At the conclusion of the hearing, and following arguments by counsel, Judge Zinter explained the basis of his decision. He stated:

The Court acknowledges that "complete address" is not defined in the rules or statutes. However, the Court concludes that the words "complete address" when taken in their usual and ordinary sense mean a street as well as a city. I think it would be almost absurd to conclude that complete address would allow the omission of someone's city. As a consequence, the Court's second conclusion is that this language does require--does include the requirement of including the city of residence.

This conclusion is consistent with the well-established rules of statutory construction. See US West...