November 28, 2022
Cody J. Miller
Lammers, Kleibacker, & Dawson, LLP
108 N. Egan
P.O. Box 45
Madison, SD 57042-0045
OFFICIAL OPINION No. 22-02
Re: Official Opinion Concerning Calculation of Petition Signatures under SDCL 34A-5-42, and Tolling of the Statute of Limitations under SDCL 34A-5-44
Dear Mr. Miller,
In your capacity as a counsel for the Spring Creek Cow Creek Sanitary District you have requested an official opinion from the Attorney General’s Office on the following question:
- How should SDCL 34A-5-42 be interpreted in calculating the number of petition signatures required to exclude territory from a sanitary district?
- SDCL 34A-5-42 should be interpreted to require a number of signatures from resident voters of the sanitary district equal to at least 20% of the votes cast for the member of the board of trustees who received the highest number of votes at the last annual election.
The Spring Creek Cow Creek Sanitary District (District) was organized in 2020. The District serves residential users, recreational vehicle lots, and other commercial and recreational facilities in Hughes County and Sully County in central South Dakota.
In February, a petition for a resolution of exclusion of real property from the District was presented to the District’s Board of Trustees. The Petition had been signed by 10 people. Following presentation of the Petition, the Board set the matter for public hearing. In March, the proposed Resolution was presented to the Sully County Commission who approved the Resolution as required by SDCL 34A-5-43. Subsequent to Sully County’s approval, the District’s Board of Trustees tabled the Resolution for further review of the issues surrounding potential exclusion of property from the District.
The question identified above arose in reviewing the issues raised by the Petition and Resolution.
IN RE QUESTION:
State law establishes the threshold number of signatures required on a petition to exclude territory from a sanitary district. SDCL 34A-5-42. The statute requires petition signatures from:
[N]ot less than twenty percent of the legal voters residing within the district, as shown by the vote for the member of the board of trustees receiving the highest vote at large at the last preceding annual election in the district.
You have asked for my interpretation of SDCL 34A-5-42 in order to correctly calculate the number of petition signatures required by the statute.
When interpreting a statute to determine its meaning, “‘the language expressed in the statute is the paramount consideration.’” Olson v. Butte County Commission, 2019 S.D. 13, ¶ 5, 925 N.W.2d 463, 464 (quoting Goetz v. State, 2001 S.D. 138, ¶ 5, 636 N.W.2d 675, 681). “When the language in a statute is clear, certain and unambiguous, there is no reason for construction.” In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, ¶ 12, 907 N.W.2d 785, 789 (internal citations omitted). When the intent of the statutory language is unclear, “the intent of the legislature is derived from the plain, ordinary and popular meaning of the statutory language.” Id.
Upon initial review of the statute, it is clear that at least 20% of the legal voters residing in a district must sign a petition to exclude territory from the district. SDCL 34A-5-42. However, the statute then limits or qualifies that calculation by stating “as shown by the vote for the member of the board of trustees receiving the highest vote at large at the last preceding annual election in the district.” Id. This qualifying language gives pause when interpreting the statute.
Assume for illustrative purposes that a sanitary district was formed this year and held its first election. One hundred votes were cast at that election for three candidates: Candidate A received 40 votes, Candidate B received 35 votes, and Candidate C received 25 votes. In this hypothetical district, a petition to exclude territory from the district is filed in early 2023, before the district’s next annual election. Does that petition need signatures in an amount equal to 20% of the total resident voters in the district? Does the petition need 20 signatures – equal to 20% of the total votes cast in the last election where the member of the board of trustees receiving the highest vote at large was elected? Or, does the petition need 8 signatures – equal to 20% of the vote received by Candidate A in the last annual election where Candidate A was the trustee receiving the highest number of votes?
It is my opinion that SDCL 34A-5-42 requires a petition to exclude territory from a sanitary district to be signed by legal voters that are residents of the district in a number equal to at least 20% of the votes cast for the member of the board of trustees receiving the highest number of votes at the last annual election. Referencing the hypothetical described above, I conclude the petition there would require at least 8 signatures – a number equal to 20% of the vote received by Candidate A in the last annual election in that district.
I cannot conclude that SDCL 34A-5-42 requires petition signatures equal to 20% of voters residing in the district. To do so is to give no effect to the qualifying language identified above. Steinberg v. South Dakota Dep’t of Military and Veterans Affairs, 2000 S.D. 36, ¶ 12, 607 N.W.2d 596, 601 (citation omitted)(“‘[t]he Legislature does not intend to insert surplusage into its enactments’”).
When interpreting a statute, I am bound by the terms used in the statute and not what I think the Legislature could have said or should have said. Holborn v. Deuel County Board of Adjustment, 2021 S.D. 6, ¶ 35, 955 N.W.2d 363, 378 (citing Martinmass v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d. 600, 611). The plain language of the statute requires use of “the vote for” the trustee “receiving the highest vote … at the last preceding election” in determining the petition signature requirement. SDCL 34A-5-42. To reach the conclusion that the statute requires petition signatures based on 20% of the total vote cast in the last trustee election would be to read into the statute language that does not exist. If the Legislature wanted the total vote cast to control the petition signature requirement it could have drafted SDCL 34A-5-2 to require as much. The Legislature did not, and I cannot now add that language through my interpretation. Holborn, 2021 S.D. 6, ¶ 35; and Olson, 2019 S.D. 13, ¶ 10.
I conclude that SDCL 34A-5-42 should be interpreted to require a number of signatures from resident voters of the sanitary district equal to at least 20% of the votes cast for the member of the board of trustees who received the highest number of votes at the last annual election.
Mark A. Vargo
 According to state law, all members of the sanitary district board of trustees are elected at large. SDCL 34A-5-14.1 & -16. Three trustees are elected to staggered terms at the first election after a district has been formed. SDCL 34A-5-16. The trustee receiving the highest number of votes at this election serves a 3 year term, the trustee receiving the second highest number of votes serves a 2 year term, and the trustee receiving the third highest number of votes serves a 1 year term. Id. Thereafter, one trustee is elected annually for a term of 3 years. Id.
 See SDCL 2-1-5 (petition signatures required for initiative or referendum must be based on “total number of votes cast for Governor at the last preceding gubernatorial election…”); or SDCL 12-5-1 (a new political party may be organized by submitting “a written declaration signed by at least one percent of the voters of the state as shown by the total vote cast for Governor at the last preceding gubernatorial election…”).