Larson v. Krebs

• Decision Date: 21 June 2017
• Docket Number: 27956,27957
• Citation: 898 N.W.2d 10
• Parties: David J. LARSON, Plaintiff and Appellee, v. Shantel KREBS, as Secretary of State for the State of South Dakota, Defendant, and Elaine Wulff, as Auditor, Buffalo County, South Dakota Defendant and Appellee, and Dedrich R. Koch, Candidate for election, Defendant and Appellant. Steven R. Smith, Plaintiff and Appellee, v. Shantel Krebs, as Secretary of State for the State of South Dakota, Defendant, and Pamela Michalek, as Auditor for Lyman County, Defendant and Appellee, and Theresa Maule Rossow, Candidate for election, Defendant and Appellant.
• Court: South Dakota Supreme Court

898 N.W.2d 10

David J. LARSON, Plaintiff and Appellee,

v.Shantel KREBS, as Secretary of State for the State of South Dakota, Defendant,andElaine Wulff, as Auditor, Buffalo County, South Dakota Defendant and Appellee,

and

Dedrich R. Koch, Candidate for election, Defendant and Appellant.

Steven R. Smith, Plaintiff and Appellee,

v.Shantel Krebs, as Secretary of State for the State of South Dakota, Defendant,andPamela Michalek, as Auditor for Lyman County, Defendant and Appellee,

and

Theresa Maule Rossow, Candidate for election, Defendant and Appellant.

27956

27957

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS FEBRUARY 13, 2017

OPINION FILED June 21, 2017

ALBERT STEVEN FOX, JESSICA HEGGE of Larson Law, PC, Chamberlain, South Dakota, Attorneys for plaintiff and appellee David J. Larson #27956.

RICHARD J. RYLANCE, II of Morgan Theeler LLP, Mitchell, South Dakota, Attorneys for defendant and appellee Elaine Wulff #27956.

STEVEN R. SMITH, Chamberlain, South Dakota, Pro se plaintiff and appellee #27957.

THERESA MAULE ROSSOW, Chamberlain, South Dakota, Pro se defendant and appellant #27957.

KERN, Justice

[¶1.] Prior to the 2016 general election, Theresa Maule Rossow and Dedrich Koch each filed separate nominating petitions to seek election as State's Attorneys in two counties. Maule Rossow filed in Brule County and then Lyman County, while Koch filed in Jerauld County and then Buffalo County. Competitors in all four counties brought suit in separate cases, seeking to prevent Maule Rossow and Koch from running for State's Attorney in more than one county at a time. In the Lyman and Buffalo Counties suits, the circuit court ruled that the candidate's second filings violated SDCL 12–6–3's prohibition against dual candidacies and thus were invalid. Maule Rossow and Koch appeal. Although the issue is now moot, we decide the case under an exception to the mootness doctrine. We also consolidate Maule Rossow and Koch's appeals because they raise the same issue. We affirm.

BACKGROUND

Theresa Maule Rossow's Appeal

[¶2.] Maule Rossow is an attorney and resident of Brule County, South Dakota. On January 21, 2016, she filed a nominating petition with the Brule County Auditor to run as an Independent candidate for election as Brule County State's Attorney. Maule Rossow filed a second nominating petition on February 12, 2016, with the Lyman County Auditor to run as an Independent candidate for election as Lyman County State's Attorney.

[¶3.] Although not a resident of Lyman County, Maule Rossow was not precluded from seeking office on the basis of residency. Pursuant to SDCL 7–16–31, in any county with a population of less than 5,000 persons, a State's Attorney is not "disqualified from holding office for failure to be a resident of that county if the state's attorney is a resident of a county which is contiguous to the county in which the state's attorney holds office." Brule and Lyman Counties are adjacent to each other. According to the 2010 census, all four counties have populations of less than 5,000 persons. The State's Attorney positions for the involved counties are part-time and were to be filled by the voters in each county at the November 8, 2016 general election. Residents of the respective counties could vote only for the State's Attorney candidates seeking office in their county.

[¶4.] On April 26, 2016, Steven R. Smith filed a nominating petition with the Lyman County Auditor to run as an Independent candidate for election as Lyman County State's Attorney. Smith filed a lawsuit against Secretary of State Shantel Krebs, Lyman County Auditor Pamela Michalek, and Maule Rossow, seeking a writ of prohibition to prevent Maule Rossow's name from appearing on the ballot for State's Attorney in Lyman County during the November 2016 election. Smith alleged that SDCL 12–6–3 prevented Maule Rossow from seeking public office in Brule and Lyman Counties in the same general election. Additionally, David Natvig, a candidate for State's Attorney in Brule County, filed suit against Secretary of State Shantel Krebs, Brule County Auditor Pamela Petrak, and Maule Rossow, seeking to prevent Maule Rossow's name from appearing on the ballot in Brule County for the same reason.

Dedrich Koch's Appeal

[¶5.] Koch is an attorney and resident of Buffalo County, South Dakota. The facts underlying Koch's appeal are similar to Maule Rossow's, except that this is not the first time he sought dual candidacies in adjacent counties, as he did so in 2012. The facts of the 2012 election provide a useful background for Koch's present situation. In March 2012, Koch filed a nominating petition as a Republican candidate to run for Jerauld County State's Attorney, challenging Casey Bridgman, the incumbent, in the June 2012 primary. In May, Koch filed a nominating petition as an Independent candidate to run for Buffalo County State's Attorney. Koch won the primary in Jerauld County, ran unopposed in the general election, and was elected Jerauld County State's Attorney. Koch also won the general election for State's Attorney in Buffalo County but resigned from that position prior to taking office because "of ongoing litigation in Jerauld County stemming from his election in both counties." Bridgman v. Koch , 2013 S.D. 83, ¶ 3, 840 N.W.2d 676, 677.¹

[¶6.] After Koch's 2012 resignation, the Buffalo County Commission filled the vacancy by appointing Albert Fox. Shortly thereafter, Fox was suspended from the practice of law, and the Buffalo County Commission appointed David Natvig, the Brule County State's Attorney. An interim election was scheduled in 2014 to fill the remaining portion of the term. Buffalo County residents elected Koch to serve as State's Attorney until the next general election in 2016. Meanwhile, Koch was still serving as Jerauld County State's Attorney.

[¶7.] On February 23, 2016, Koch filed a nominating petition with the Jerauld County Auditor to run as a Republican candidate for Jerauld County State's Attorney. Koch filed a second petition on March 18, 2016, with the Buffalo County Auditor to run as an Independent candidate for Buffalo County State's Attorney. Jerauld and Buffalo counties are adjacent. On March 29, 2016, David J. Larson filed a nominating petition with the Buffalo County Auditor to run as a Democratic candidate for Buffalo County State's Attorney.

[¶8.] Larson filed a lawsuit against Secretary of State Shantel Krebs, Buffalo County Auditor Elaine Wulff, and Koch, seeking a writ of prohibition to prevent Koch's name from appearing on the ballot for Buffalo County State's Attorney. Larson alleged that SDCL 12–6–3 prevented Koch from seeking public office in Jerauld and Buffalo Counties in the same general election. Bridgman, a candidate for State's Attorney in Jerauld County, also filed suit against Secretary of State Shantel Krebs, Jerauld County Auditor Cindy Peterson, and Koch, seeking to prevent Koch from appearing on the Jerauld County ballot for the same reason.

The Circuit Court Proceedings on Maule Rossow and Koch's Elections

[¶9.] The circuit court held a hearing on all four cases on August 1, 2016.² The court began by addressing a motion filed by Secretary of State Shantel Krebs seeking dismissal from the cases pursuant to SDCL 15–6–12(b)(5). Krebs argued that she had no role in the election dispute because nominating petitions for State's Attorney are "filed in the office of the county auditor of the county in which the person is a candidate," not with the Secretary of State. SDCL 12–6–4. And the petitions are certified by the county canvassing board, leaving the Secretary of State with "no authority over placement of state's attorney candidates on the general election ballot." The court agreed and dismissed her from the cases.

[¶10.] After oral argument in each case, the court ruled from the bench in favor of plaintiffs in the Lyman and Buffalo Counties suits and denied the writs requested in the Brule and Jerauld Counties suits. On August 15, 2016, the court issued findings of fact, conclusions of law, and writs of prohibition precluding the Lyman County and Buffalo County Auditors from placing Maule Rossow and Koch's names on the respective county ballots. In the Lyman County suit against Maule Rossow, the circuit court concluded that "Maule Rossow's second filed nominating petition was illegal as she was attempting to run for two public offices in one general election." The court deemed "the second filed nominating petition a nullity rather than declare both petitions invalid, or treating the second petition as the valid petition and the first abandoned upon the filing of the second." And in the Buffalo County suit against Koch, the court determined that "[t]he votes to be taken for Buffalo County State's Attorney and Jerauld County State's Attorney are both a part of the 2016 general election." Accordingly, "by filing the second, Buffalo County, petition Dedrich R. Koch did thereby violate the provisions of SDCL 12–6–3."

[¶11.] On August 26, 2017, Maule Rossow and Koch each filed with this Court a motion for an emergency stay of writ of prohibition and request for expedited briefing. We denied both motions on August 30, 2016.

[¶12.] Because Maule Rossow and Koch (collectively, "Appellants") both appealed from the circuit court's decisions and raise substantially similar arguments, we consolidate their cases. We restate the sole issue as follows: whether SDCL 12–6–3 prohibited Appellants from running for two State's Attorney's offices in two counties during the same general election.

DECISION

[¶13.] Because the 2016 general election has come and gone, the first question we must address is whether the appeals are moot. "[T]his Court renders opinions pertaining to actual controversies affecting people's rights." In re Woodruff , 1997 S.D. 95, ¶ 10, 567 N.W.2d 226, 228. "[A]n appeal will be dismissed as moot where, before the appellate decision, there has been a change of circumstances or the occurrence of an event by which the actual...