When a Box Elder City Councilperson resigned mid-term and the council appointed a replacement under SDCL 9-13-14.1 'to serve until the next annual municipal election,' did the appointee have to run for retention at the 2016 annual election or at the next regularly scheduled Box Elder election in 2017 (Box Elder's terms were staggered, so no full election was scheduled for 2016)?
Plain-English summary
Box Elder, South Dakota had a city council with three-year staggered terms. In ordinary years, only one-third of the council seats came up for election at the second-Tuesday-of-April annual election. Because of the staggering, Box Elder did not have any seats scheduled for election in 2016.
Then a Box Elder councilperson resigned in the second year of his three-year term, creating a vacancy. The council moved to appoint a replacement under SDCL 9-13-14.1, which provides for filling vacancies.
The statute reads: "If a vacancy exists on a municipal governing body, the remaining members shall appoint a replacement to serve until the next annual municipal election, or the vacancy may be filled by special election for the remainder of the unexpired term as provided in § 9-13-14.2."
Box Elder City Attorney Rexford Hagg asked the AG: did "next annual municipal election" mean the 2016 default-cycle April election (even though Box Elder had no full council seats up that year), or the next election when Box Elder would normally hold a council election (2017)?
The AG ruled: 2016.
The plain language of SDCL 9-13-14.1 said "next annual municipal election." SDCL 9-13-1 established an annual election each second Tuesday of April for every municipality. So the "next annual municipal election" after the resignation was the second Tuesday of April 2016, not a later cycle.
Box Elder had been skipping the annual April election in some years under SDCL 9-13-5, which allows a municipality to forgo the election if there is "no question to be submitted to the voters." But the resignation had created a question for the voters: who would fill the vacant council seat for the remainder of the unexpired term. The 2016 election therefore had to happen, with the appointee on the ballot and able to face opposing candidates.
If no one filed against the appointee, SDCL 9-13-5's no-opposing-candidates exception kicked back in, and the election could be canceled. The appointee would simply continue serving for the remainder of the unexpired term in that case.
The AG also clarified that the 2016 election filled only the unexpired portion of the original term, not a new three-year term. Citing AGO 79-7 and AGO 72-34, the seat being filled was the one that had been vacated, not a fresh start. The winner would serve until the original term's scheduled end.
The AG's reasoning used standard South Dakota statutory construction:
- The South Dakota Supreme Court's recent Puetz Corp. decision (2015 SD 82) emphasized that statutory construction starts with the plain language.
- A court is not at liberty to read into the statute provisions the Legislature did not incorporate (citing City of Deadwood v. M.R. Gustafson Family Trust).
- South Dakota's long-standing policy is to fill vacancies in elective offices "as soon as practicable" (citing State v. Board of Comm'rs of Lyman Cnty. and Noel v. Cunningham).
All three principles supported reading "next annual municipal election" literally, not as "next regularly scheduled" or "next normally-held" election.
Currency note
This opinion was issued in 2015, which is more than five years before today's date. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The municipal vacancy provisions in SDCL Chapter 9-13 may have been amended; verify current statutory language for Box Elder and other South Dakota municipalities facing similar situations.
What the opinion meant at the time
For Box Elder, the opinion required holding the annual municipal election in April 2016 with the appointed councilperson on the ballot. The election cost was unavoidable unless no opposing candidate filed.
For other South Dakota cities with staggered council terms, the opinion was a precedent for how to handle mid-term vacancies. Even municipalities that typically skipped annual elections in non-cycle years had to hold an election if a vacancy created a question for voters.
For city attorneys advising on vacancy procedures, the opinion provided a clear two-step framework:
1. If the council appoints a replacement, the replacement serves "until the next annual municipal election."
2. The "next annual municipal election" is the next second-Tuesday-of-April after the appointment, regardless of the city's normal election schedule.
3. The election can be canceled under SDCL 9-13-5 only if there are no opposing candidates.
For potential challengers seeking council seats, the opinion told them they could file against an appointed incumbent at the next April after the appointment. They did not have to wait for the original term to expire.
For appointed councilpersons, the opinion meant their tenure was secure only if they survived the next April election. If a challenger filed and won, the appointee was out at that point.
Common questions
Q: What if the council preferred not to hold the 2016 election to save costs?
A: The council did not have discretion to skip it once the vacancy created a question for voters. The appointee had to be on the ballot. The election could be canceled only if no opposing candidate filed (SDCL 9-13-5). Cost-saving was not a basis for skipping.
Q: Could the council instead choose option two (special election) to fill the remainder of the unexpired term?
A: Yes. SDCL 9-13-14.1 gave the council two options at the time of the vacancy: appoint to serve until the next annual election (option one), or hold a special election to fill the unexpired term (option two). Box Elder had chosen option one. The AG opinion addressed only the consequences of that choice.
Q: What if the appointee won the 2016 election, did the appointee then serve the rest of the unexpired term?
A: Yes. The 2016 election filled the unexpired portion of the original three-year term, not a fresh three-year term. The winner served until the original term's scheduled end. When that term expired, the seat would be on the next regular cycle election for a full three-year term.
Q: What if the appointee lost the 2016 election?
A: The winning challenger took over for the rest of the unexpired term. The appointee left office.
Q: Could the council appoint someone who explicitly did not intend to run in the 2016 election?
A: Yes. The appointment was for a defined period (until the next annual election). The appointee could simply not file for the election and leave office when the term-of-appointment ended on election day. The seat would then either be filled by the election winner (if any candidate filed) or, if no one filed, become vacant again and trigger a fresh round under SDCL 9-13-14.1.
Q: How did Box Elder's staggered three-year terms work?
A: Box Elder presumably had three (or six) council seats with terms ending in different years (one-third or one-sixth coming up each year). The staggering meant continuity of experience on the council, with at most a few new members each cycle. Most South Dakota cities with city-council government use similar staggering.
Q: Could the council have avoided the question by not appointing anyone (leaving the seat vacant until the next regular cycle election)?
A: SDCL 9-13-14.1 said the remaining members "shall appoint a replacement." The "shall" language suggested a duty, not a discretion. Leaving the seat vacant would arguably violate the statute. The opinion did not address this directly, but the structure of the statute pushed toward filling the vacancy promptly.
Background and statutory framework
South Dakota's municipal government framework allowed cities to choose between commission, aldermanic, and other forms. The aldermanic form (with a mayor and council members, often elected from wards) was common in mid-sized cities like Box Elder.
Box Elder is a community of about 8,000-9,000 residents (as of mid-2010s data) in Pennington County, near Rapid City and the Ellsworth Air Force Base. It uses an aldermanic form of city government with council members elected to three-year staggered terms.
SDCL Chapter 9-13 covered municipal elections. Section 9-13-1 set the annual municipal election date (second Tuesday of April). Section 9-13-5 allowed cancellation of the election if no question was to be submitted to voters or if no opposing candidates filed. Section 9-13-14.1 governed vacancy filling.
The interaction of these provisions created the question Box Elder faced. The default rule was an annual April election. But cities with staggered terms could skip the election in non-cycle years if no candidates or questions arose. A mid-term vacancy disrupted the staggered-skip pattern by creating a candidate question for the voters.
The AG's opinion confirmed that the default annual election was the operating rule, with staggered-term skips being only an exception that did not apply when a vacancy needed to be resolved.
This analysis turned in part on the Supreme Court's 2015 decision in Puetz Corp. v. SD Dept. of Revenue, which had reaffirmed the plain-language approach to statutory construction. The court was unwilling to read "next annual municipal election" expansively to mean "next regularly held election." The AG followed that approach.
Attorney General Marty Jackley signed the opinion. Jackley served two terms as AG (2009-2019) and was an active issuer of formal opinions clarifying state and local government practice.
Citations and references
Statutes:
- SDCL 9-13-14.1 (vacancy on municipal governing body; appoint until next annual election or special election)
- SDCL 9-13-14.2 (special election procedure)
- SDCL 9-13-1 (annual municipal election second Tuesday of April)
- SDCL 9-13-5 (no election if no question or no opposing candidates)
- SDCL 9-13-6 (publication requirement)
South Dakota Supreme Court cases:
- Puetz Corp. v. SD Dept. of Revenue, 2015 SD 82
- State v. Clark, 2011 S.D. 20, ¶ 10, 798 N.W.2d 160, 164
- City of Deadwood v. M.R. Gustafson Family Trust, 2010 S.D. 5, ¶ 9, 777 N.W.2d 628, 629
- State v. Board of Comm'rs of Lyman Cnty., 34 S.D. 256, 145 N.W. 548 (1914)
- Noel v. Cunningham, 68 S.D. 606, 609, 5 N.W.2d 402, 403 (1942)
Prior AG opinions:
- AGO 79-7 (vacancy election fills unexpired term)
- AGO 72-34 (same)
Source
Original opinion text
Re: Filling City Council Vacancy pursuant to SDCL 9-13-14.1
Dear Mr. Hagg,
The Attorney General's Office received a request for an official opinion from you in your position as Box Elder City Attorney.
Question:
Pursuant to SDCL 9-13-14.1, does an appointed councilperson seeking to retain their seat need to run at an annual municipal election in 2016 or at the next regularly scheduled municipal election in 2017?
Answer:
State law requires the appointed councilperson to run for the seat at the next annual election in 2016.
Facts:
A Box Elder City councilperson was elected to serve a three-year term. The Councilperson resigned during the second year of his term. The City Council has taken steps to appoint a new member to fill the vacancy. SDCL 9-13-14.1 provides that the appointed councilperson is "to serve until the next annual municipal election[.]" Because Box Elder has staggered terms for its councilpersons it does not, at present, have an annual municipal election scheduled for 2016. Box Elder's next regularly scheduled municipal election is in 2017. Accordingly, there is a question as to whether the appointed councilperson would need to run to retain the seat at an annual municipal election in 2016 or at the next regularly scheduled municipal election in 2017.
In re Question:
The plain language of SDCL 9-13-14.1 requires the appointed council person to run at the 2016 annual municipal election. SDCL 9-13-14.1 provides:
If a vacancy exists on a municipal governing body, the remaining members shall appoint a replacement to serve until the next annual municipal election, or the vacancy may be filled by special election for the remainder of the unexpired term as provided in § 9-13-14.2. In the aldermanic form of municipal government, the appointment shall be a person from the same ward of the municipality. If electing a person to fill the remainder of the unexpired term at an annual municipal election, the vacancy shall have occurred prior to the publication required by § 9-13-6.
When facing a vacancy, SDCL 9-13-14.1 presents the City Council with two options: (1) "appoint a replacement to serve until the next annual municipal election" or (2) elect, by special election, a replacement to serve out the remaining term of the vacant position. According to the facts you presented, the Box Elder City Council has chosen option one. As such, if the appointed councilperson seeks to remain in office, he or she must run in the 2016 annual municipal election.
"'The purpose of statutory construction is to discover the true intention of the law, which is to be ascertained primarily from the language expressed in the statute.'" Puetz Corp. v. SD Dept. of Revenue, 2015 SD 82, ¶ 16, ___ N.W. 2d ___ (quoting State v. Clark, 2011 S.D. 20, ¶ 10, 798 N.W.2d 160, 164). Allowing the appointed councilperson to hold the position until 2017 would require a determination that "next annual municipal election" actually means "next regularly scheduled municipal election[.]" SDCL 9-13-14.1 (italicized text added). Such an interpretation is contrary to the basic rules of statutory construction. City of Deadwood v. M.R. Gustafson Family Trust, 2010 S.D. 5, ¶ 9, 777 N.W.2d 628, 629 ("A court is not at liberty to read into the statute provisions which the Legislature did not incorporate.").
The fact that Box Elder does not presently have an election scheduled for 2016 makes no difference. SDCL 9-13-1 provides that "[i]n each municipality an annual election of officers shall be held on the second Tuesday of April of each year[.]" An annual municipal election need not be held, however, "if there is no question to be submitted to the voters." SDCL 9-13-5. The resignation of Box Elder's councilperson has potentially created a question for the voters. A 2016 annual municipal election provides the opportunity for a challenger to run against the recently appointed councilperson for the remainder of the vacant term. Of course, if "there are no opposing candidates" for the vacancy, Box Elder would not be required to hold the election pursuant to SDCL 9-13-5.
Further, "[i]t is the general policy of the law to fill vacancies in elective offices at an election as soon as practicable after the vacancy occurs." State v. Board of Comm'rs of Lyman Cnty., 34 S.D. 256, 145 N.W. 548, 549 (1914) (concluding that a vacancy in the office of county commissioner could lawfully be filled at the next general election); see also Noel v. Cunningham, 68 S.D. 606, 609, 5 N.W.2d 402, 403 (1942). This long-standing policy provides further support that state law requires Box Elder to hold an annual municipal election in 2016 as set forth above.
It is also important to recognize that the 2016 municipal election would present a contest for the remainder of the vacant term, not a full three-year term. See AGO 79-7; AGO 72-34.
Sincerely,
Marty J. Jackley
ATTORNEY GENERAL
MJJ/EB/lde