South Dakota State Fed'n Of Labor Afl-cio v. Jackley

• Decision Date: 21 July 2010
• Docket Number: No. 25642.,25642.
• Citation: 786 N.W.2d 372,2010 S.D. 62
• Parties: SOUTH DAKOTA STATE FEDERATION OF LABOR AFL-CIO, Applicant and Appellant,v.Marty JACKLEY, South Dakota Attorney General, Respondent and Appellee,andChris Nelson, Secretary of State, Respondent.
• Court: South Dakota Supreme Court

786 N.W.2d 372

2010 S.D. 62

SOUTH DAKOTA STATE FEDERATION OF LABOR AFL-CIO, Applicant and Appellant,v. Marty JACKLEY, South Dakota Attorney General, Respondent and Appellee,andChris Nelson, Secretary of State, Respondent.

No. 25642.

Supreme Court of South Dakota.

Considered on Briefs July 13, 2010.

Decided July 21, 2010.

COPYRIGHT MATERIAL OMITTED

Steven D. Sandven, Attorney at Law, Sioux Falls, South Dakota, Attorney for applicant and appellant.

Marty J. Jackley, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] The narrow issue on appeal is whether the Attorney General's ballot explanation of proposed Constitutional Amendment K complies with the requirements of SDCL 12-13-9. The trial court upheld the ballot explanation and denied South Dakota State Federation of Labor AFL-CIO's (AFL-CIO) request for a writ of certiorari. We affirm.

FACTS

[¶ 2.] Pursuant to Article XXIII, § 1 of the South Dakota Constitution, amendments to South Dakota's Constitution “may be proposed by initiative or by a majority vote of all members of each house of the Legislature.” Under this authority, the South Dakota Legislature in its 2010 session enacted Senate Joint Resolution 3 “[p]roposing and submitting to the electors at the next general election an amendment to Article VI of the Constitution of the State of South Dakota, relating to the right of individuals to vote by secret ballot.” Article VI of the South Dakota Constitution is the South Dakota Bill of Rights. The text of proposed Constitutional Amendment K, which will become § 28 of Article VI if passed, provides:

The rights of individuals to vote by secret ballot is fundamental. If any state or federal law requires or permits an election for public office, for any initiative or referendum, or for any designation or authorization of employee representation, the right of any individual to vote by secret ballot shall be guaranteed.

[¶ 3.] On May 12, 2010, the Attorney General delivered an explanation of proposed Constitutional Amendment K to the Secretary of State. SDCL 12-13-9. It provides:

ATTORNEY GENERAL

2010 BALLOT EXPLANATION

CONSTITUTIONAL AMENDMENT K

Title: An Amendment to Article VI of the South Dakota Constitution relating to the right of individuals to vote by secret ballot.

Explanation:

The proposed amendment to the Constitution would guarantee a right to vote by secret ballot to prevent others from knowing how a person voted. This right would apply to elections of public officers, adoption of initiated or referred measures, and elections to designate or authorize employee representation, such as elections concerning unions.

A vote “Yes” is for guaranteeing a right to vote by secret ballot.

A vote “No” is against the constitutional amendment.

[¶ 4.] The AFL-CIO filed an application and affidavit for writ of certiorari challenging the Attorney General's ballot explanation for proposed Constitutional Amendment K and asking that proposed Constitutional Amendment K be omitted from the ballot for the November 2, 2010 general election. The trial court concluded that the Attorney General did not exceed his statutory authorization under SDCL 12-13-9 and upheld the Attorney General's ballot explanation for proposed Constitutional Amendment K. Accordingly, the trial court denied AFL-CIO's request for a writ of certiorari.

ANALYSIS AND DECISION

[¶ 5.] The full text of a proposed constitutional amendment is not printed on the election ballot. Instead, “[t]he 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 submitted to a vote of the people.” SDCL 12-13-11. “The attorney general shall prepare each statement, title, explanation, and recitation.” SDCL 12-13-1.

[¶ 6.] Prior to July 1, 2006, SDCL 12-13-9 provided:

Before the fourth Tuesday in July, 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. 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.

[¶ 7.] Our case law examined this statute to determine what it required and what it disallowed:

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 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.

Schulte v. Long, 2004 SD 102, ¶ 11, 687 N.W.2d 495, 498. The purpose of a ballot explanation prior to July 1, 2006, was to identify an amendment to an informed electorate rather than to educate the electorate. Hoogestraat, 1998 SD 104, ¶ 11, 583 N.W.2d at 424.

[¶ 8.] In apparent response to our decisions in Hoogestraat and Schulte, the Legislature amended SDCL 12-13-9 in 2006 and 2007. 2006 SD Sess. L. ch. 67, § 3; 2007 SD Sess. L. ch. 14, § 2; 2007 SD Sess. L. ch 77, § 1. Until July 1, 2010 SDCL 12-13-9 provides:

Before the third Tuesday in May, the attorney general shall deliver to the secretary of state an attorney general's statement for each proposed amendment to the Constitution, each initiated measure, and any referred measure from an odd year. The attorney general's statement for each referred measure from an even year shall be delivered to the secretary of state before the second Tuesday in July. The attorney general's statement shall be written by the attorney general and shall consist of a title, an explanation, and a clear and simple recitation of the effect of a “Yes” or “No” vote. The title shall be a concise statement of the subject of the proposed amendment, initiated measure, or referred measure authored by the attorney general, who may adopt the title used by the petition sponsors during the circulation process if that title is legally sufficient. The explanation shall be an objective, clear, and simple summary to educate the voters of the purpose and effect of the proposed amendment to the Constitution, the initiated measure, or the referred law. The attorney general shall include a description of the legal consequences of the proposed amendment, the initiated measure, or the referred law, including the likely exposure of the state to liability if the proposed amendment, the initiated measure, or the referred law is adopted. The explanation 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.

The 2009 Legislature also amended SDCL 12-13-9. That amendment is effective July 1, 2010. The text of SDCL 12-13-9, effective July 1, 2010, as well as the text of a new section, SDCL 12-13-25.1 is appended.

[¶ 9.] The 2006 and 2007 amendments to SDCL 12-13-9 clarify the scope of the authority delegated to the Attorney General when preparing ballot explanations. SDCL 12-13-9 now specifically requires that the Attorney General's statement be “written by the attorney general” and the title be “authored by the attorney general.” The purpose of the explanation is no longer to identify the amendment to an informed electorate rather than to educate it. Schulte, 2004 SD 102, ¶ 12, 687 N.W.2d at 498. SDCL 12-13-9 now requires that the explanation be an “objective, clear, and simple summary to educate the voters of the purpose and effect of the proposed amendment [.]” (Emphasis added). And, while the language of SDCL 12-13-9 prior to 2006 allowed for a summary of the legal effect of an amendment, that summary could not include “collateral, theoretical or potential consequences which may or may not occur.” Hoogestraat, 1998 SD 104, ¶ 12, 583 N.W.2d at 424. Now, however, the Attorney General “shall include a description of the legal consequences of the proposed amendment ... including the likely exposure of the state to liability if the proposed amendment ... is adopted.” SDCL 12-13-9. (Emphasis added). SDCL 12-13-9 sets forth the elements the Attorney General is required to address in a ballot statement. Within this legal framework, however, the Attorney General “is granted discretion as to how to author the ballot statement.” Schulte, 2004 SD 102, ¶ 11, 687 N.W.2d at 498. This Court's function is limited. Id. “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.” Id.

A

[¶ 10.] At issue in this case is whether the Attorney General's ballot explanation of proposed Constitutional Amendment K complies with the requirements set forth in SDCL 12-13-9. Despite this narrow issue, the AFL-CIO urged the trial court to order the Attorney General and Secretary of State to strike proposed Constitutional Amendment K from the ballot. On appeal, the AFL-CIO urges this Court to decide the legality and constitutionality of proposed Constitutional Amendment K in light of federal preemption law.

[¶ 11.] Questions regarding the constitutionality of proposed constitutional amendments are left “for such time as it is properly...