February 22, 1979

Mr. Vincent J. Protsch
General Counsel
Post Office Box 414 
Madison, South Dakota 57042

OFFICIAL OPINION NO. 78-9

Consumers' Power District elections

Dear Mr. Protsch:

You have requested an opinion from this office based upon the following question:

QUESTION:

Can a candidate for director of a Consumers' Power District who has not been nominated in the primary election, file as provided in SDCL 12-7-1, have his name submitted on the ballot at the general election?

SDCL 49-36-1 pertains to the election of directors of a Consumer's Power District. Said section substantially provides that the director shall be nominated and elected in the same manner and after the same method as nearly as may be, as by law provided for the nomination of election of judges of the circuit court.

Chapter 12-9 provides the manner of nominating and electing supreme court justices and circuit court judges.

SDCL 12-9-4 provides that nominating petitions for judicial office filed pursuant to Chapter 12-9 must state the position sought, must be filed with the Secretary of State as provided in SDCL 12-6-4, and must be signed by not less that fifty registered voters. It is further provided that SDCL 12-6-8 will govern such petitions.

SDCL 12-9-8 says that when nominating petitions are filed on behalf of can­didates not to exceed twice the number of persons for the number of posi­tions to be filled, then no primary election is held.

SDCL 12-7-1 refers to nominating independent candidates for nonjudicial public office.

It is my opinion that a candidate for director of a Consumer's Power District cannot file pursuant to SDCL 12-7-1, since the statutory provisions of SDCL 49-36-1 require that such candidates for directors shall be nomi­nated and elected in the same manner as a judge of a circuit court, and Chapter 12-9 provides the manner and method for electing judges.

There is one instance in which a candidate for director may not need to be nominated at the primary election other than as provided in SDCL 12-9-8 and that is 12-9-15. SDCL 12-9-15 provides that if a candidate nominated at the primary election dies, withdraws or otherwise is disqualified, the voters of the district or circuit may, if there is sufficient time for filing nominating petitions pursuant to SDCL 12-8-6, nominate one or more candidates for such judicial office by petition.

The answer to your question is no.

You also ask for an opinion regarding an apparent conflict between SDCL 12-6-4.1 and 12-6-8.

SDCL 12-6-4.1 provides that no petition or certificate of nomination covered by Chapter 12-6 may be circulated prior to the first day of January of the year in which the election shall be held.

SDCL 12-6-8 provides that no person can sign the nominating petition of a candidate more than one hundred twenty days prior to the date of the primary election, which date in 1978 was February 6, 1978.

You are absolutely correct; it is difficult to understand how a petition may be circulated but not signed between January I and February 5, 1978. This is an apparent mistake on the part of the Legislature and has been remedied by HB 1101 which, of course, does not correct the problem for 1978 but hopefully it will for future elections. HB 1101 was signed by the Governor on February 8, 1978, with an emergency clause.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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