Erin AGETON, Appellant, v. Marty J. JACKLEY, in his capacity as South Dakota Attorney General, Appellee.
No. 27485.
Supreme Court of South Dakota.
Argued Feb. 16, 2016. Decided March 30, 2016.
2016 S.D. 29 | 90
WILBUR, Justice.
[¶ 1.] In this writ of certiorari action, the applicant asserted that the Attorney General failed to prepare an adequate ballot explanation under
Background
[¶ 2.] Then-State Representative Steve Hickey sponsored an initiated measure to be certified for the November 2016 general election. If adopted, the measure would impose a maximum finance charge against certain lenders for specific types of loans. Before a petition for an initiated measure can be circulated for signatures, the sponsor of the measure must submit a final version to the South Dakota Attorney General.
[¶ 3.] Under
[¶ 4.] In regard to this measure, Attorney General Jackley drafted the following title and explanation:
Title: An initiated measure to set a maximum finance charge for certain licensed money lenders.
Explanation:
The initiated measure prohibits certain State-licensed money lenders from making a loan that imposes total interest, fees and charges at an annual percentage rate greater than 36%. The measure also prohibits these money lenders from evading this rate limitation by indirect means. A violation of this measure is a misdemeanor crime. In addition, a loan made in violation of this measure is void, and any principle, fee, interest, or charge is uncollectable.
The measure‘s prohibitions apply to all money lenders licensed under South Dakota Codified Laws chapter 54-4. These licensed lenders make commercial and personal loans, including installment, automobile, short-term consumer, payday, and title loans. The measure does not apply to state and national banks, bank holding companies, other federally insured financial institutions, and state chartered trust companies. The measure also does not apply to businesses that provide financing for goods and services they sell.
On May 27, 2015, Attorney General Jackley filed the title and explanation with the Secretary of State and submitted a copy to the sponsor.
[¶ 5.] On June 5, 2015, Erin Ageton, an opponent of the measure, filed an application for a writ of certiorari in circuit court
[¶ 6.] The process governing a challenge to a ballot explanation is expedited under
[¶ 7.] Ageton argued that, as written, the explanation is mere tautology. She claimed that the explanation does not differentiate purpose from effect: the purpose of the measure is to cap the finance charge on certain loans by certain lenders at 36% and the effect is that certain lenders will be subject to a 36% cap for finance charges on certain loans. She alleged that the true purpose and effect of the measure is to ban short-term lending in South Dakota because of the “general knowledge” that short-term lending cannot exist under a 36% cap.
[¶ 8.] Counsel for the Attorney General responded that Ageton‘s view of the true purpose and effect “could very well be considered advocacy[.]” Counsel argued that “this is not intended to be the proceeding to litigate whether or not payday lenders are going to be put out of business, and whether or not the 36-percent cap will result in that. . . . As much as counsel and the applicant would like to argue that it is, I think it‘s fair to say that it‘s not certain.” Counsel also noted that whether the Attorney General “woulda-shoulda-coulda” written the explanation differently is not the standard. In counsel‘s view, the Attorney General complied with
[¶ 9.] On June 18, 2015, the circuit court issued a memorandum decision. The court declined to take judicial notice of the articles attached to Ageton‘s affidavit in support of her application for a writ. It ruled that Ageton‘s documents “do not state facts that are ‘generally known’ or ‘capable of accurate and ready determination by sources whose accuracy cannot be reasonably questioned’ as is required before a court can take judicial notice.” It further ruled that the documents were inadmissible because “certiorari review is limited to considering the record of the proceedings before the officer,” which evidence “is pertinent to his decision and the court may not consider matters outside that record.”
[¶ 11.] Ageton appeals, asserting the following issues for our review:
- Whether the circuit court erred by limiting the record and determining that the circuit court may not consider facts outside the record.
- Whether the Attorney General abused his discretion in failing to consider the information he had notice of regarding the proposed initiated measure.
- Whether the Attorney General‘s ballot explanation educates voters about the initiated measure‘s “purpose,” “effect,” and “legal consequences” pursuant to
SDCL 12-13-25.1 .
Standard of Review
[¶ 12.] Ageton instituted this action challenging the Attorney General‘s ballot explanation, by filing an application for a writ of certiorari. It is well settled that our scope of review of certiorari proceedings is limited—we examine only whether the officer had jurisdiction and whether the officer regularly pursued the authority conferred upon him.
[¶ 13.] In previous cases involving a challenge to the Attorney General‘s ballot explanation, we have adhered to this limited scope of review. See S.D. State Fed‘n of Labor AFL-CIO v. Jackley, 2010 S.D. 62, ¶ 7, 786 N.W.2d 372, 375; Hoogestraat v. Barnett, 1998 S.D. 104, ¶ 13, 583 N.W.2d 421, 424; Schulte v. Long, 2004 S.D. 102, ¶ 11, 687 N.W.2d 495, 498. Ageton, however, argues that “ancient forms of certiorari review” should not “frustrate meaningful review of individual officers’ actions[.]” She contends that the Legislature “expressly” created an action under
[¶ 14.] Enacted in 2007,
If the proponents or opponents of a proposed amendment to the Constitu-tion, initiated measure, or referred
measure believe that the attorney general‘s statement does not satisfy the requirements of § 12-13-9 or 12-13-25.1, they shall, within seven days of delivery of the statement to the secretary of state, file an action in circuit court challenging the adequacy of the state-ment. The action takes precedence over other cases in circuit court and a final order shall be filed within fifteen days of the commencement of the action. Any party appealing the circuit court order to the Supreme Court shall file a notice of appeal within five days of the date of the circuit court order.
(Emphasis added.) From our review of this statute, the Legislature did not create a specific action with its own substantive standards. The Legislature did, however, add the requirement that the Attorney General‘s statement be adequate. Therefore, in addition to deciding whether the Attorney General “did some act forbidden by law or neglected to do some act required by law,” we must also review whether the Attorney General‘s statement is adequate under
Analysis
1. Whether the circuit court erred by limiting the record and determining that the circuit court may not consider facts outside the record.
A. Scope of the Record
[¶ 15.] Ageton claims the circuit court improperly limited the scope of the record when it excluded her evidence of information and general knowledge she argues the Attorney General had a duty to consult when drafting the ballot explanation. According to Ageton, the circuit court compounded this error when it confined its certiorari review “to the few documents ‘self-certified’ by the Attorney General[.]” She directs this Court to
i. Evidence of Background Facts
[¶ 16.] Ageton asks, “Can the Attorney General‘s statutory duty to educate voters require the Attorney General to consider outside information, or even general economic facts about how annual percentage rates work over a short term?” (Emphasis added.) In Ageton‘s view the answer is “Yes” because the “initiated measure proposes to regulate a complex market” and “accurate voter education may require a basic understanding of that complex market.” She avers, therefore, that the circuit court “should have allowed” her “to make her argument, utilizing information and exhibits for the court‘s consideration.” In response, the Attorney General emphasizes that the only “record” relevant to the court‘s review is the one that was before the Attorney General when he drafted the ballot explanation.
[¶ 17.] Although the Attorney General certified a record without first being commanded to do so under
ii. Judicial Notice
[¶ 18.] Ageton next argues that the circuit court erred when it held that judicial
[¶ 19.] In a footnote in her reply brief, Ageton alternatively argues that the circuit court clearly erred when it refused to take judicial notice of her documents. She claims that the documents were offered as “examples of general economic knowledge” that the “36% cap on finance charges is a de facto ban on short-term lending.” She then faults the court for not examining the documents to determine “whether some or all of the background material contained therein was appropriate for judicial review.”
[¶ 20.] The circuit court was not required to scrutinize approximately 100 pages submitted by Ageton to determine if somewhere in those many pages there was a fact worthy of judicial notice. And from our review of the documents, we cannot say the facts are generally known or capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned. For example, in one document offered by Ageton, the author uses a formula to calculate simple interest—“r = I/Pt“—and opines that “an interest rate ceiling of 36 percent or below do not generate revenues to meet variable costs and stores shut down.” Another article “reviews existing evidence and presents new evidence on the economic and demographic characteristics of payday loan customers, their patterns of payday loan use, their understanding of payday loan costs and alternatives, and outcomes of payday loan use.” The court did not err when it concluded that Ageton‘s documents were not appropriate for judicial notice.
2. Whether the Attorney General abused his discretion in failing to consider the information he had notice of regarding the proposed initiated measure.
and
3. Whether the Attorney General‘s ballot explanation educates voters about the initiated measure‘s “purpose,” “effect,” and “legal consequences” pursuant to SDCL 12-13-25.1 .
[¶ 21.] We combine Ageton‘s next two issues.* Whether the Attorney General abused his discretion necessarily depends on whether the Attorney General‘s ballot explanation is adequate under
[¶ 22.] In Jackley, we recognized that the Legislature amended the statute governing Attorney General ballot explanations. 2010 S.D. 62, ¶ 8, 786 N.W.2d at 375. Prior to the amendment, the purpose of a ballot explanation was to inform voters. Id. Now a ballot explanation must contain an “objective, clear, and simple summary to educate the voters of the purpose and effect” of the initiated measure. Id. ¶ 9. We also highlighted that the explanation must contain a description of the legal consequences, including the likely exposure of the state to liability if a measure is adopted. Id. And, under
[¶ 23.] Despite these statutory changes, we reiterated that the “Attorney General ‘is granted discretion as to how to author the ballot statement.‘” Id. ¶ 7 (quoting Schulte, 2004 S.D. 102, ¶ 11, 687 N.W.2d at 498). This is because the Attorney General is the officer charged by the Legislature with the duty of preparing a “statement which consists of a title and explanation.”
[¶ 24.] Here, even if we accept that the proponent‘s true purpose with the initiated measure is to end short-term lending in South Dakota, that purpose and effect is more appropriate for political dispute and advocacy. There is no language in the initiated measure that specifically bans short-term lending in South Dakota. And, although a 36% interest rate cap on short-term loans for certain lenders might prompt those lenders to cease providing short-term loans, the initiated measure does not prohibit their continued operation.
[¶ 25.] As Justice Zinter recognized in his special writing in Schulte, “[p]ublic questions often have substantial political overtones.” 2004 S.D. 102, ¶ 26, 687 N.W.2d at 501 (Zinter, J., concurring) (quoting Gormley v. Lan, 88 N.J. 26, 438 A.2d 519, 525-26 (1981)). Likewise, “there can be substantial dispute as to what the true purpose of an amendment is; indeed there may be many ‘true purposes.‘” Gormley, 438 A.2d at 525. It is simply not for this Court or the circuit court to require the Attorney General to include every practical or possible effect of each initiated measure. “We cannot be concerned with what the Attorney General should have said or could have said or might have said or what is implied or suggested by what he did say. Rather we must focus on the language chosen[.]” Schulte, 2004 S.D. 102, ¶ 18, 687 N.W.2d at 500. From our review of the Attorney General‘s ballot explanation, the Attorney General did not abuse his discretion, and the explanation is adequate under
[¶ 26.] Affirmed.
[¶ 27.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.