#28531-a-SRJ
2018 S.D. 69

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                      ****

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 Appellees.

                                      ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                    DEUEL COUNTY, SOUTH DAKOTA

                                      ****

                        THE HONORABLE CARMEN MEANS
                                   Judge

                                      ****

THOMAS F. BURNS                              Attorney for petitioners
Watertown, South Dakota                      and appellants.


DANNY R. SMEINS                              Attorney for respondents
Britton, South Dakota                        and appellees.

                                      ****

                                             CONSIDERED ON BRIEFS ON
                                             AUGUST 27, 2018
                                             OPINION FILED 09/26/18
#28531

JENSEN, Justice

[¶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 Deuel 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, the 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 Appellants that only

Petition 1, containing 19 signatures, was accepted. The Auditor rejected Petitions 2

and 3 for failing to comply with SDCL 7-18A-17. The Auditor noted that Petition 2,

containing 51 signatures, was missing the title of the ordinance, and Petition 3,

containing 252 signatures, was missing the words “Wind Energy Systems (WES)

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Requirements” from the title of the ordinance as well as the date the ordinance was

passed.1 After rejecting Petitions 2 and 3, the Auditor determined that the

Appellants had collected only 19 of the 145 signatures needed for a referendum on

the ordinance.

[¶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 SDCL 7-18A-17. The Appellants appeal the

circuit court’s decision as to Petition 3, asking this Court to determine that Petition

3 substantially complied with the requirements of SDCL 7-18A-17.

                                 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 discretion 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.




1.      Petition 3 described the ordinance as follows:

              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.

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Stanley, 2005 S.D. 112, ¶ 8, 706 N.W.2d 626, 629). “[S]tatutory interpretation and

application are questions of law that we review de novo.” Id. (quoting Krsnak,

2012 S.D. 89, ¶ 8, 824 N.W.2d at 433).

                                        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 reasonable 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 SDCL 7-18A-17.

[¶8.]         A writ of mandamus “is an extraordinary remedy that will issue only

when the duty to 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


2.      The Appellants also argue that Petition 3 substantially complied with SDCL
        7-18A-17 because the description of the ordinance on the rejected petition is
        the same description used by the Auditor in the published notice of adoption.
        However, unlike Petition 3, the body of the Auditor’s notice contained the full
        title of the ordinance, identifying that the ordinance amended the “Wind
        Energy System (WES) Requirements” of the Deuel County Zoning Ordinance.
        Additionally, the Auditor’s notice set forth the entire text of the amended
        ordinance, the date of passage, and the date the ordinance would become
        effective. There is nothing in the Auditor’s notice that was misleading or
        otherwise excused the Appellants’ substantial compliance with the statute.
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#28531

             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.]        SDCL 2-1-11 provides that petitions for referendum “shall be liberally

construed, so that the real intention of the petitioners may not be defeated by a

mere technicality.” “For this reason, ‘we begin with a presumption that petitions

which are circulated, signed, and filed are valid.’” Baker, 2001 S.D. 49, ¶ 18,

625 N.W.2d at 271 (quoting Larson v. Hazeltine, 1996 S.D. 100, ¶ 19, 552 N.W.2d

830, 835). However, the statutory requirements “governing a referendum petition

are substantial in character and not merely requirements of form.” Id. ¶ 19

(quoting Bjornson v. City of Aberdeen, 296 N.W.2d 896, 899 (S.D. 1980)). “These

requirements, must, therefore, have been substantially complied with in order to

render the petition valid.” Id. (quoting Bjornson, 296 N.W.2d at 899).

[¶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 so
             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 purpose of the statute is shown to have been
             served. What constitutes substantial compliance with a statute
             is a matter depending on the facts of each particular case.

Id. (quoting Larson, 1996 S.D. 100, ¶ 19, 552 N.W.2d at 835).

[¶11.]       The plain language of SDCL 7-18A-17 requires a referendum petition

to include the title and date of passage of an ordinance:

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             If the matter intended 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 ordinance 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 SDCL 7-18A-17 requires a referendum petition to contain the title

and date the challenged ordinance passed, stating, that “Those are the

express conditions set forth in the governing statutes.” 2001 S.D. 49, ¶ 21,

625 N.W.2d at 272.

[¶13.]       These express conditions in SDCL 7-18A-17 ensure that the face

of the referendum petition readily informs a prospective signatory of the

nature of the challenged ordinance, the date of its passage, and that the

voter’s signature corresponds to the actual ordinance being challenged. To

excuse compliance with these requirements would frustrate the statute’s

purposes. Because Petition 3 failed to substantially comply with the

requirements of SDCL 7-18A-17, the circuit court properly denied the

Appellants’ petition for writ of mandamus.

[¶14.]       GILBERTSON, Chief Justice, ZINTER, KERN, and SALTER,

Justices, concur.

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