DOYLE THOMPSON, DEBRA HUBER, ALLEN SKATVOLD and DENNIS D. EVENSON, Petitioners and Appellants, v. PAM L. LYNDE, in her capacity as Deuel County Auditor; and LYNN PEDERSON, STEVE RHODY, GARY JAEGER, DEANNE DUMKE, and GARY DEJONG, in their capacities as Deuel County Commissioners, Respondents and Aрpellees.
#28531-a-SRJ
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 09/26/18
2018 S.D. 69
THE HONORABLE CARMEN MEANS, Judge
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, DEUEL COUNTY, SOUTH DAKOTA. CONSIDERED ON BRIEFS ON AUGUST 27, 2018.
THOMAS F. BURNS, Watertown, South Dakota, Attorney for petitioners and appellants.
DANNY R. SMEINS, Britton, South Dakota, Attorney for respondents and appellees.
[¶1.] The Appellants submitted three petitions to the Deuel County Auditor seeking referendum on an ordinance amending the Wind Energy System (WES) Requirements of the Dеuel County Zoning Ordinance. The Auditor rejected two of the petitions, leaving an insufficient number of valid signatures to trigger a referendum election. The Appellants appeal the circuit court‘s denial of an application for a writ of mandamus. We affirm.
Background
[¶2.] On May 23, 2017, the County Commissioners of Deuel County, South Dakota passed Ordinance B2004-01-23B. The title of the ordinance read:
Ordinance B2004-01-23B
AN ORDINANCE ENTITLED, An Ordinance to amend Section 1215 Wind Energy System (WES) Requirements Adopted by Ordinance B2004-01, July 6, 2004, as amended, of the Zoning Ordinance of Deuel County.
The Auditor‘s notice of adoption of the ordinance was published on May 31, 2017.
[¶3.] After the notice was published, thе Appellants began circulating petitions to obtain the necessary signatures to refer the ordinance for a special election. The Appellants circulated three different petitions (Petition 1, Petition 2, and Petition 3). All three petitions were timely submitted to the Auditor.
[¶4.] On July 11, 2017, the Auditor informed the Apрellants that only Petition 1, containing 19 signatures, was accepted. The Auditor rejected Petitions 2 and 3 for failing to comply with
[¶5.] The Appellants sought a writ of mandamus to compel the Auditor to accept the rejected petitions and schedule a special election on the ordinance. The issue was submitted to the circuit court on affidavits and written arguments. The court denied the application for writ of mandamus determining that Petitions 2 and 3 were properly rejected by the Auditor because they did not substantially comply with the statutory requirements of
Standard of Review
[¶6.] “This Court reviews the decision to grant or deny a writ of mandamus under an abuse of discretion standard.” Coester v. Waubay Twp., 2018 S.D. 24, ¶ 7, 909 N.W.2d 709, 711 (quoting Krsnak v. S.D. Dep‘t of Env‘t & Nat. Res., 2012 S.D. 89, ¶ 8, 824 N.W.2d 429, 433). “An abuse of discrеtion is ‘a fundamental error of judgment, a choice outside the reasonable range of permissible choices, a decision that, on full consideration, is arbitrary or unreasonable.‘” Id. (quoting Wald, Inc. v. Stanley, 2005 S.D. 112, ¶ 8, 706 N.W.2d 626, 629). “[S]tatutory interpretation and application are questions of law that we
Analysis
[¶7.] The Appellants argue that the circuit court abused its discretion in denying the writ of mandamus because the defects in Petition 3 were mere technicalities presenting no reasonаble risk of confusion, fraud, or corruption. See Headley v. Ostroot, 76 S.D. 246, 249, 76 N.W.2d 474, 475–76 (1956) (stating that substantial compliance with statutes relating to petition and referendum is necessary to “prevent fraud or corruption in securing the petitions“).2 The Appellees argue that the circuit court acted within its discretion in denying mandamus relief because the Auditor properly rejected Petition 3 for failing to comply with the requirements of
[¶8.] A writ of mandamus “is an extraordinary remedy that will issue only when the duty tо act is clear.” Baker v. Atkinson, 2001 S.D. 49, ¶ 16, 625 N.W.2d 265, 271. This Court has stated that,
[m]andamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right. To prevail in seeking a writ of mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.
Sorrels v. Queen of Peace Hosp., 1998 S.D. 12, ¶ 6, 575 N.W.2d 240, 242 (citations omitted).
[¶9.]
[¶10.] Substantial compliance means
actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court should determine whether the statute has been followed sufficiently sо as to carry out the intent for which it was adopted. Substantial compliance with a statute is not shown unless it is made to appear that the purpоse of the statute is shown to have been served. What constitutes substantial compliance
with a statute is a matter depending on the facts of eаch particular case.
Id. (quoting Larson, 1996 S.D. 100, ¶ 19, 552 N.W.2d at 835).
[¶11.] The plain language of
If the matter intendеd to be covered by a referendum petition is the whole of any ordinance or resolution, the petition shall contain the title of such ordinance or the subject of such resolution, and the date of its passage, but if only a portion of such ordinance or resolution is intended to be covered by the petition, such portion shall be set out at length.
(Emphasis added.)
[¶12.] Petition 3 included the ordinance number and section of the zoning ordinаnce that was amended, but the Petition failed to identify the full title of the ordinance—namely that the amended zoning ordinance involved “Wind Energy System (WES) Requirements.” The Petition also failed to provide the date of the ordinance‘s passage. In Baker, this Court noted that
[¶13.] These express conditions in
[¶14.] GILBERTSON, Chief Justice, ZINTER, KERN, and SALTER, Justices, concur.
Notes
Ordinance B2004-01-23B an Ordinance amending Section 1215 adopted by Ordinance B2004-01 July 6, 2004, as amended, of the Zoning Ordinance of Deuel County.