October 29, 1985
The Honorable Alice Kundert
Secretary of State
State Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 85-45
Implementation of special election procedures
Dear Miss Kundert:
You have requested my opinion concerning implementation of SDCL Chapter 34-21A as it relates to the conducting of the hearings on the special election called to approve the provisions of the Dakota Compact. First you asked whether the provisions of SDCL 34-21A-14 require the Secretary of State to conduct hearings on the proposed Dakota Compact Chapter 287, Session Laws 1985. In view of the South Dakota Supreme Court's opinion in Wyatt v. Kundert, N.W.2d (Opinion Issued, October 2, 1985), the court specifically held that the hearings must be provided. Given that the hearings must be held, you have asked the following questions:
QUESTIONS:
1. Who shall be identified as the representative of the State Legislature?
2. Who shall be identified as the representative of the Governor?
3. Who is to pay for the costs of the hearing procedure?
4. Must the funds for costs of the hearings be collected in advance?
5. May the hearing be held simultaneously in seven locations throughout the state?
6. Which newspapers would qualify as 'generally circulated South Dakota newspapers' for purpose of publication of the summary?
7. May the published summary be identical to the explanation of the submitted questions which will appear on the election ballot?
8. Is a notice of hearing required?
9. Are any records or transcripts required of the hearings?
IN RE QUESTIONS NO 1 & 2:
In the Wyatt Case, the Supreme Court stated in regard to the hearings
Nothing in Chapter 240 [SDCL Chapter 31-21A], however, prevents the governor or the legislature from sending a qualified representative or representatives. The legislature can surely select from its members, or the governor from the executive department, representatives to attend and participate in the required hearings. Assuredly, the entire legislature and the governor need not personally attend. A procedure, with representatives from the governor's office and the legislature, can be devised to effectuate a procedure which is reasonable in attaining the purposes of Section 1, Chapter 240. . . . The Secretary of State, the governor's office, and the legislature, through its leadership, should immediately proceed to comply with the dictates of Chapter 240.
Based upon the foregoing language, the Governor should provide you with the name or names of representatives he wishes to represent him at those hearings. By the same token, the Legislature, presumably operating through the Executive Board of the Legislative Research Council, should provide you with names of representatives acceptable to it. Those persons may then perform the function of the 'applicant' at the hearings.
IN RE QUESTIONS 3 & 4:
Since SDCL 34-21A-4(5) defines 'applicant' in the case of a proposed compact as the 'State Legislature together with the Governor,' it is my opinion that these two bodies are equally responsible for the costs of publishing the summaries and conducting the hearings. Both of these groups have legislatively appropriated contingency funds that would appear to be suitable for this purpose. You should inquire of them in what manner they wish the bills for costs submitted and follow that procedure.
IN RE QUESTION NO 5:
SDCL 34-21A-1 requires that 'at least seven hearings on the application, with the applicant present to answer questions, are conducted around the state by a neutral party appointed by the Secretary of State, cost to be borne by the applicant.' The statute in question is silent on whether these hearings may be held simultaneously or at different times. Accordingly, it is my opinion that the method of conducting these hearings, their location and the timing of scheduling the hearings is left to your sound discretion. Given the shortness of time between now and the scheduled election date, I see no reason why you could not schedule these hearings to be held simultaneously throughout the state.
IN RE QUESTION NO 6:
SDCL 34-21A-1 provides in part 'such a vote shall not take place . . .; until a summary of the application is published in generally circulated South Dakota newspapers by the Secretary of State, cost to be borne by the applicant . . ..' Once again, the statute in question is silent regarding the number of 'generally circulated South Dakota newspapers' required for publication of the summary. Some guidance can be drawn from SDCL 1-26-4.1 which addresses notice requirements for rule making activities by state agencies. The statute provides that publication of a notice in at least three newspapers of general circulation in different parts of the state would satisfy agency requirements for publication. Accordingly, it would be my opinion if you publish these summaries in at least three newspapers of general circulation, the intents of the statute would be met. In order to insure as wide as possible dissemination of the information. I would advise you to publish the summaries in daily newspapers which are distributed in the communities you select as the hearing sites. I would not identify three newspapers as the maximum number you could use, but as a minimum.
IN RE QUESTION NO 7:
The phrase 'summary of the application' is not further explained in the statute. Accordingly, I believe that the summary you choose to publish is within your sound discretion. I am aware of no reason you could not use the explanation of the submitted question generated by my office as the 'summary of the application.' As I understand it, under the election provisions regarding a referendum, the entire compact will be published in each county's legal newspaper prior to the election. That publication, together with the summary explanation, should suffice to provide the citizens with notice of all of the relevant provisions of the statute. You have indicated your intention to conduct the hearings after the compact has been reproduced in the legal newspapers, and I would endorse that proposal as maximizing the opportunity of the citizens to have the necessary information before them at the time of the hearings and the election.
IN RE QUESTION NO 8:
Once again, the statute is silent on the question of notice; however, throughout the South Dakota codified laws public hearings are almost without exception preceded by public notice. Accordingly, I would advise you to publish a notice of the hearings at the same time you publish the summary of the compact in newspapers serving the areas of the state you select as sites for the hearings.
IN RE QUESTION NO 9:
Once again, there is no provision in the statute for records or transcripts of the hearings. I would advise you to retain affidavits of publication of the summary and the hearing together with any opening statement provided to the persons conducting the hearing and such other evidence as might be necessary to establish that the summaries and hearing were in fact published and conducted if questions should arise.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
