Ballot case gives Supreme Court chance to re-examine prior ruling
Posted: Monday, July 31, 2006
PIERRE, S.D. (AP) -- An appeal that will determine whether measures that seek to repeal video gambling and a tax on cell phone service are placed on the fall ballot gives the South Dakota Supreme Court a chance to re-examine its own ruling in a 1995 case.
In that 3-2 decision, which dealt with an airport dispute in Wessington Springs, the high court said an initiated measure could not be used to repeal an existing law.
As it decides whether the measures that seek to repeal video gambling and the cell phone tax should be put on the November ballot, the Supreme Court now is being asked to back away from the 1995 ruling. Lawyers for sponsors of the two measures have asked the justices to rule that initiated measures, which are proposed laws, can be used to repeal existing laws.
The state attorney general's office has urged the high court to stick to its 1995 ruling.
Only two of the current justices took part in the 1995 decision. Justice John J. Konenkamp voted with the majority, but Justice Richard Sabers dissented, saying he believed the initiated measure in Wessington Springs should be put to a public vote in the city.
Since then, three new justices have joined the court: Chief Justice David Gilbertson and Justices Steve Zinter and Judith Meierhenry.
The current dispute arose in late May, when Secretary of State Chris Nelson said he would not put the proposed repeals on the ballot. He relied on the legal advice of Attorney General Larry Long, who said the 1995 Supreme Court ruling meant an initiated measure could not be used to repeal an existing law.
Sponsors of the two initiated measures, who had collected enough petition signatures to put the proposals on the ballot, then asked the Supreme Court to take another look.
The justices heard arguments in the case Thursday and are expected to issue a decision soon so election officials can prepare ballots for the November election.
In the 1995 case, Chris Christensen and another Wessington Springs voter proposed an initiative that called for a one-year moratorium on the city's efforts to build a city airport. The Supreme Court said the measure could not be put to a public vote because it amounted to a referendum on the city's actions, not an initiative.
The South Dakota Constitution allows people to collect signatures to place an initiated measure, which is a proposed law, on the ballot. People also can collect signatures to refer a law passed by the Legislature to a public vote. Such a referral must be filed before the challenged law takes effect, and the law is suspended until voters decide whether to accept or reject it.
The Supreme Court in 1995 noted that the South Dakota Constitution prohibits the referral of any law passed by the Legislature that is necessary for the support of state government or is necessary for the immediate preservation of public peace, health or safety.
The constitution does not prevent initiatives from dealing with measures necessary for the support of state government or the preservation of peace, health or safety "presumably because initiatives are not intended to affect existing laws," the court majority said in 1995.
If the distinction between referendums and initiatives is allowed to be blurred, voters could get around the restrictions on referrals by fashioning their measures as initiatives, which would allow public votes on things otherwise not subject to referral, the Supreme Court said.
"We refuse to endorse this result, because doing so would effectively nullify a constitutional provision," the high court said in 1995.
"Unfortunately, Christensen confuses the powers of initiative and referendum and mistakenly assumes that an initiative may be used, like a referendum, to repeal or amend previously passed legislation," the Supreme Court said in the decision dealing with the Wessington Springs measure proposed by Chris Christensen.
During Thursday's hearing, lawyers for the proposals that would repeal the video lottery and the cell phone tax urged the high court to consider the language in the 1995 decision as dicta, which is an opinion that is not essential to deciding the case and is not binding in future cases.
In any event, the court now should declare that the language used in the 1995 decision was wrong, said Sioux Falls lawyer James McMahon, who represents Verizon Wireless, the sponsor of the proposed repeal of the cell phone tax.
If the language from the 1995 case is allowed to stand, the public would have little chance to put any kind of initiative on the ballot, McMahon said. "If you follow Christensen, you strip the people of their constitutional right."
Rapid City lawyer Patrick Duffy, representing sponsors of the proposed repeal of video gambling, said about a dozen sentences from the Wessington Springs case should be considered a digression that dealt only with the specific circumstances of that dispute.
But Assistant Attorney General Jeff Hallem urged the court to stand by its 1995 ruling so initiated measures cannot be used as a way to get around the constitutional ban on referrals of laws needed for the support of state government.
The video lottery provides about $109 million a year to the state treasury. The cell phone tax, passed in 2003 to help balance the state budget, provides the state with nearly $5 million a year and gives counties about $3.3 million.
Eds: Chet Brokaw has covered the South Dakota Supreme Court since 1981.
In that 3-2 decision, which dealt with an airport dispute in Wessington Springs, the high court said an initiated measure could not be used to repeal an existing law.
As it decides whether the measures that seek to repeal video gambling and the cell phone tax should be put on the November ballot, the Supreme Court now is being asked to back away from the 1995 ruling. Lawyers for sponsors of the two measures have asked the justices to rule that initiated measures, which are proposed laws, can be used to repeal existing laws.
The state attorney general's office has urged the high court to stick to its 1995 ruling.
Only two of the current justices took part in the 1995 decision. Justice John J. Konenkamp voted with the majority, but Justice Richard Sabers dissented, saying he believed the initiated measure in Wessington Springs should be put to a public vote in the city.
Since then, three new justices have joined the court: Chief Justice David Gilbertson and Justices Steve Zinter and Judith Meierhenry.
The current dispute arose in late May, when Secretary of State Chris Nelson said he would not put the proposed repeals on the ballot. He relied on the legal advice of Attorney General Larry Long, who said the 1995 Supreme Court ruling meant an initiated measure could not be used to repeal an existing law.
Sponsors of the two initiated measures, who had collected enough petition signatures to put the proposals on the ballot, then asked the Supreme Court to take another look.
The justices heard arguments in the case Thursday and are expected to issue a decision soon so election officials can prepare ballots for the November election.
In the 1995 case, Chris Christensen and another Wessington Springs voter proposed an initiative that called for a one-year moratorium on the city's efforts to build a city airport. The Supreme Court said the measure could not be put to a public vote because it amounted to a referendum on the city's actions, not an initiative.
The South Dakota Constitution allows people to collect signatures to place an initiated measure, which is a proposed law, on the ballot. People also can collect signatures to refer a law passed by the Legislature to a public vote. Such a referral must be filed before the challenged law takes effect, and the law is suspended until voters decide whether to accept or reject it.
The Supreme Court in 1995 noted that the South Dakota Constitution prohibits the referral of any law passed by the Legislature that is necessary for the support of state government or is necessary for the immediate preservation of public peace, health or safety.
The constitution does not prevent initiatives from dealing with measures necessary for the support of state government or the preservation of peace, health or safety "presumably because initiatives are not intended to affect existing laws," the court majority said in 1995.
If the distinction between referendums and initiatives is allowed to be blurred, voters could get around the restrictions on referrals by fashioning their measures as initiatives, which would allow public votes on things otherwise not subject to referral, the Supreme Court said.
"We refuse to endorse this result, because doing so would effectively nullify a constitutional provision," the high court said in 1995.
"Unfortunately, Christensen confuses the powers of initiative and referendum and mistakenly assumes that an initiative may be used, like a referendum, to repeal or amend previously passed legislation," the Supreme Court said in the decision dealing with the Wessington Springs measure proposed by Chris Christensen.
During Thursday's hearing, lawyers for the proposals that would repeal the video lottery and the cell phone tax urged the high court to consider the language in the 1995 decision as dicta, which is an opinion that is not essential to deciding the case and is not binding in future cases.
In any event, the court now should declare that the language used in the 1995 decision was wrong, said Sioux Falls lawyer James McMahon, who represents Verizon Wireless, the sponsor of the proposed repeal of the cell phone tax.
If the language from the 1995 case is allowed to stand, the public would have little chance to put any kind of initiative on the ballot, McMahon said. "If you follow Christensen, you strip the people of their constitutional right."
Rapid City lawyer Patrick Duffy, representing sponsors of the proposed repeal of video gambling, said about a dozen sentences from the Wessington Springs case should be considered a digression that dealt only with the specific circumstances of that dispute.
But Assistant Attorney General Jeff Hallem urged the court to stand by its 1995 ruling so initiated measures cannot be used as a way to get around the constitutional ban on referrals of laws needed for the support of state government.
The video lottery provides about $109 million a year to the state treasury. The cell phone tax, passed in 2003 to help balance the state budget, provides the state with nearly $5 million a year and gives counties about $3.3 million.
Eds: Chet Brokaw has covered the South Dakota Supreme Court since 1981.
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