Schulte v. Long
| Decision Date | 03 September 2004 |
| Docket Number | No. 23371,23371 |
| Citation | 687 NW 2d 495,2004 SD 102 |
| Parties | JASON SCHULTE, Applicant and Appellee, v. LARRY LONG, SOUTH DAKOTA ATTORNEY GENERAL, and CHRIS NELSON, SECRETARY OF STATE, Respondents and Appellants. |
| Court | South Dakota Supreme Court |
RON J. VOLESKY of Volesky Law Firm Huron, South Dakota, Attorney for applicant and appellee.
LAWRENCE E. LONG, Attorney General, JEFFREY P. HALLEM, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondents and appellants.
[¶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.
[¶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
Title: An act to exempt food from sales and use taxes.
Explanation:
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:
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: 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: 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 US 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.
[¶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, constitutional 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 'Yes' 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 Hoogestraat v. Barnett, 1998 SD 104, 583 NW2d 421. However within this legal framework, the Attorney General is granted discretion as to how to author the ballot statement. Gormley v. Lan, 88 NJ 26, 438 A2d 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:
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