July 29, 1988

Ms. Lenore Pfeifle 
Campbell County Auditor 
Mound City, South Dakota 57646

Official Opinion No. 88-33

Requirements for filing nominating petitions as an Independent candidate for the office of State's Attorney and County Commissioner

Dear Ms. Pfeifle:

You have requested an official opinion relating to the following factual situation:

FACTS: 

1.   An attorney currently residing in McPherson County, South Dakota has heretofore participated in the primary election for State's Attorney of McPherson County, South Dakota.  The attorney was defeated in that primary election and now seeks nomination as an Independent candidate in Campbell County, South Dakota for the office of State's Attorney in Campbell County. 

2.   A candidate for the office of County Commissioner for Campbell County was defeated in the primary election and now desires to refile as an Independent candidate for the office of County Commissioner in a different district within Campbell County.

Based upon this factual situation, you have asked the following questions:

QUESTIONS: 

1.   Does SDCL 12-6-3 or SDCL 12-7-5 prohibit a County Auditor from accepting an attorney's nominating petition to file as an independent candidate for the office of State's Attorney in one county when the same attorney has previously lost in a primary election for State's Attorney in a different county? 

2.   Does SDCL 12-6-3 or SDCL 12-7-5 prohibit a County Auditor from  accepting a person's nominating petition to file as an independent candidate for the office of County Commissioner when the same person has previously been defeated in the primary election for County Commissioner within the same county but in a different district?

IN RE QUESTION NO 1:

It should be noted at the outset that SDCL 12-6-3 merely prohibits an individual from participating as a candidate for nomination to more than one public office at the same time.   SDCL 12-6-3 provides: 

No person shall be a candidate for nomination to more than one public office, but a candidate for any such office shall not be prohibited from being elected to any one or more party offices as may be provided in Chapter 12-5.

This Office opined in Attorney General Opinion 1935-1936 p. 212, that the plain and unequivocal language of the forgoing statute does not allow a person to be a candidate for two public offices at the same time and on the same party ballot.

Given your inquiry, one must then look at the provisions of SDCL 12-7-5 which provide: 

No person shall file a certificate of nomination pursuant to § 12-7-1 for  an office for which he has been a candidate in the primary election of the same year.

Your inquiry hinges upon the question of whether participation in the primary election for State's Attorney in one county precludes an attorney from subsequently filing as an independent candidate for the office of State's Attorney in another county.  Hence, whether the office of State's Attorney in separate counties is statutorily deemed to be the same public office.

SDCL 3-4-1 is determinative of the distinction in public offices.   SDCL 3-4-1 provides in pertinent part: 

Every office shall become vacant on the happening of any one of the following events before the expiration of the term of such office: 

... 

     (5) [The individual] [ceases] to be a resident of the ... district ... [or] ... county ... in which the duties of his office are to be exercised or for which [the individual] may have been elected;  [Emphasis added.] 

     ...

According to this statute a public office would be deemed vacated if the individual changed his residency from the region he represents.  As a result, offices representing different counties or districts should be deemed to be statutorily distinct offices under SDCL 12-7-5.

Based upon the foregoing, it is my opinion that the office of State's  Attorney in each organized county within the State of South Dakota is a separate and distinct public office.  SDCL 7‑16‑1.  SDCL 12-7-5 simply does not allow an attorney to file a certificate of nomination for the same county's office of State's Attorney in the same year that he has been defeated as a candidate in the primary election.

Finally, should this individual be elected he must, of course, meet the residency requirements of SDCL 3-4-1 upon taking office or the office will become immediately vacant as provided by statute.

IN RE QUESTION NO. 2:

The foregoing rationale, as it relates to SDCL 12-6-3, is also applicable to the second question that you have asked.  SDCL 12‑7‑5 and 3-4-1, however, refers to an "office" which necessarily implies a separate and distinct political office as pointed out in the answer to the previous question.  Here, this individual ran in the primary for the office of Campbell County Commissioner.  Having been defeated in that primary election, he cannot now re-file as an Independent for the office of Campbell County Commissioner.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General