State v. Jensen

• Decision Date: 14 May 2003
• Docket Number: No. 22536.,22536.
• Citation: 2003 SD 55,662 N.W.2d 643
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Gerald JENSEN, Defendant and Appellee.

662 N.W.2d 643

2003 SD 55

STATE of South Dakota, Plaintiff and Appellant, v. Gerald JENSEN, Defendant and Appellee.

No. 22536.

Supreme Court of South Dakota.

Considered on Briefs March 24, 2003.

Decided May 14, 2003.

Lawrence E. Long, Attorney General, Paul Cremer, Harold H. Deering, Assistant Attorney Generals, Pierre, South Dakota, Attorneys for plaintiff and appellant.

Thomas E. Brady, Spearfish, South Dakota, Attorney for defendant and appellee.

ZINTER, Justice.

[¶ 1.] The clerk of the Deadbroke Heights Road District published a notice of vacancy for the office of district trustee. The notice indicated that an election would be held on March 7, 2002. Two nominating petitions were filed, but both were allegedly defective. Gerald Jensen, the incumbent, circulated his petition prior to January 1, 2002, in violation of SDCL 12-6-4.1. Marie Slovek, the challenger, filed her petition with the district secretary, instead of the district clerk. By the time the clerk received the petition, the deadline for filing had expired. The clerk ultimately concluded that Jensen's petition was timely, that Slovek's petition was late, and therefore, Jensen was the only legal candidate. Consequently, no election was held. The Lawrence County State's Attorney subsequently initiated this quo warranto proceeding to determine who was legally entitled to the office. The circuit court ruled that Jensen legally held the office. The court concluded that Jensen's petition was valid because SDCL 12-6-4.1 did not apply to road district elections, and Slovek's petition was invalid because she did not file her petition on time. The State appeals. We reverse the ruling on Jensen's petition, affirm the ruling on Slovek's petition, and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] This road district was organized in 2000 pursuant to SDCL ch 31-12A. Lynn Stich, Les Schuchardt and Jensen were initially elected as the trustees. Each trustee served a three-year term. The elections were staggered so that one trustee was subject to election each year.

[¶ 3.] Jensen's position was open for election in 2002. SDCL 31-12A-15 provided that elections for the district trustees were to be held "on the first Tuesday after the anniversary date of the first election."¹ The first election for the district was held on March 7, 2000. Therefore, in accordance with the relevant version of SDCL 31-12A-15, the 2002 election should have been scheduled for March 12, 2002, and the deadline for filing nominating petitions was February 25, 2002.

[¶ 4.] Jensen and Slovek each circulated petitions for the election. Jensen circulated his petition on November 15, 2001, a month and one-half before the first day of the year in which the 2002 election was to be held. It was filed with the district clerk on December 10, 2001. Marie Slovek circulated her petition after the first of the year. She filed it on February 22, 2002. However, she filed her petition with the district secretary instead of the district clerk. Slovek's petition was forwarded to the district clerk who received it on February 27, 2002, two days after the filing deadline.²

[¶ 5.] The clerk rejected Slovek's petition as untimely and accepted Jensen's petition. Because the clerk believed there was only one valid petition, no election was held. The clerk subsequently notified the Lawrence County Auditor that Jensen would serve a new three-year term as trustee.

[¶ 6.] The Lawrence County State's Attorney subsequently initiated this quo warranto proceeding against Jensen challenging his right to hold the office. The State's Attorney argued that Jensen's nominating petition was invalid because the petition was circulated too early, in violation of SDCL 12-6-4.1. The State's Attorney also argued that Slovek was entitled to the office because she had "substantially complied" with the filing statutes by filing her nominating petition with the district secretary before the deadline. Both the State and Jensen moved for summary judgment. After a hearing, the circuit court denied the State's motion and granted summary judgment to Jensen.

[¶ 7.] The State appeals raising two issues:

1. Whether the early circulation prohibition in SDCL 12-6-4.1 was applicable to road district elections.

2. Whether Slovek was entitled to the office of district trustee.

STANDARD OF REVIEW

[¶ 8.] Our standard of review for the grant or denial of a summary judgment is well settled.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party[,] and reasonable doubts should be resolved against the moving party.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.

Braun v. New Hope Township, 2002 SD 67, ¶ 8, 646 N.W.2d 737, 739 (quoting South Dakota State Cement Plant Commission v. Wausau Underwriters Ins. Co., 2000 SD 116, ¶ 9, 616 N.W.2d 397, 400-01). "The correctness of [a] claim for a writ of quo warranto is clearly a question of law. We review questions of law de novo, without deference to the decision of the trial court." McElhaney v. Anderson, 1999 SD 78, ¶ 6, 598 N.W.2d 203, 205.

DECISION

[¶ 9.] 1. The early circulation prohibition in SDCL 12-6-4.1 was applicable to road district elections.

[¶ 10.] Quo warranto proceedings may be used to determine whether a person who holds a public office, is in legal possession of that office.

The writ of quo warranto is derived from the old English practice of inquiring by what authority the king supported his claim. Black's Law Dictionary 1417 (4th ed.1957). In more recent times, it has also been used to command a public officer to show "by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse." Id. "[W]e have held that quo warranto is the proper proceeding to determine title to and possession of a public office." "A judgment in quo warranto shall be rendered upon the right of the defendant, or both upon the right of the defendant and upon the right of the party alleged to be entitled to office, as justice shall require."

In South Dakota the common-law writ of quo warranto has been statutorily recognized. SDCL ch 21-28 provides for the remedy of writ of quo warranto.

Any person may bring a writ of quo warranto:

(1) When any person shall usurp, intrude into, or unlawfully hold or exercise any public office ...;

McElhaney, 1999 SD 78, ¶¶ 8-9, 598 N.W.2d at 205-206 (internal citations omitted). There is no dispute that the office of district trustee is a public office, and that quo warranto is an appropriate remedy to determine the right to that office. The first question is whether Jensen's nominating petition was invalid because it was filed prior to the first day of the calendar year of the election, in violation of SDCL 12-6-4.1.

[¶ 11.] A number of statutes govern the times for circulating and filing petitions for road district elections. Initially, SDCL 31-12A-17 requires the filing of the nominating petition with the district clerk no less than fifteen days before the election.

The trustees to be elected at the initial election, shall be nominated by the voters in attendance at the meeting in which the organizational election is held. Any trustee to be elected at subsequent elections, shall be nominated by filing with the district clerk not less than fifteen days before any subsequent election, certificates of nomination for the offices of trustee. The certificates shall be in writing and shall contain the name of the candidate, residence, business address, and the office for which the candidate is named, and shall be signed by at least five percent of the qualified voters.

Id. (emphasis added). In addition, the pre-July 1, 2002 version of SDCL 31-12A-15³ provided that the "election shall be conducted according to chapter 9-13." SDCL 9-13-7 required that nominating petitions be submitted pursuant to the procedures in SDCL ch 9-13 and ch 12-6. One of those procedures is found in SDCL 12-6-4.1, and that statute expressly prohibits a candidate from circulating a petition "prior to the first day of January of the year in which the election will be held."

[¶ 12.] Although Jensen circulated and filed his petition before the first day of January in the year of the election, the trial court held that SDCL 12-6-4.1 was not applicable. The court reasoned that because the date of a road district election was related to the anniversary date of the first district election, there could be an occasion where a petition could not be circulated after the first day of January as required by SDCL 12-6-4.1 and still filed at least fifteen days prior to the election as required by SDCL 31-12A-17; (i.e., an election occurring during the first fifteen days of the calendar year). While this problem is theoretically possible, we disagree with the rejection of a statutory election requirement simply because there is a hypothetical election scenario in which the statutes may conflict.

[¶ 13.] We have rejected claims of statutory invalidity based on hypothetical factual scenarios. "Judicial machinery should be conserved for problems which are real and present or imminent, not squandered on problems which are abstract or hypothetical or remote." Gottschalk v. Hegg, 89 S.D. 89, 95, 228 N.W.2d 640, 643-644 (1975) (further citations omitted). Therefore, in the related area of determining the constitutionality of statutes, "`the mere fact that there might be a case[,] where to apply the provisions of [the statute] would result in [a constitutional violation,] does not render the [statute] unconstitutional, but merely prevents its application<sup>4</sup> in such a case.'... [So also, we have recognized that] `[t]...