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 no election scheduled for 2016 because of its staggered council terms. SDCL 9-13-5 said an election need not be held if there was "no question to be submitted to the voters." The vacancy potentially created a question: a challenger could run against the appointee for the remainder of the term.

If there were no opposing candidates for the vacancy, the opinion said Box Elder would not be required to hold the election under SDCL 9-13-5. It did not say what would then happen to the appointee's tenure.

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) supplied a general plain-language principle for statutory construction; Jackley himself applied that principle to SDCL 9-13-14.1.
• 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 the appointee to run at the 2016 annual municipal election to retain the seat. If there were no opposing candidates for the vacancy, the city would not be required to hold an election.

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 identified these statutory steps:

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. If there are no opposing candidates for the vacancy, SDCL 9-13-5 does not require holding the election.

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 seeking to retain the seat, the opinion required running at the next annual election if there was an opposing candidate. It did not address tenure after an uncontested election was dispensed with.

Common questions

Q: What if the council preferred not to hold the 2016 election to save costs?
A: The opinion did not discuss election costs. It said an appointee seeking to retain the seat had to run in 2016, but if there were no opposing candidates for the vacancy, SDCL 9-13-5 did not require an election.

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 opinion said the 2016 election would be a contest for the remainder of the vacant term, not 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: The opinion did not address an appointee who declined to run. It said that an appointee seeking to remain in office had to run at the 2016 annual election.

Q: Could the council have avoided the question by not appointing anyone (leaving the seat vacant until the next regular cycle election)?
A: The opinion quoted SDCL 9-13-14.1's options to appoint a replacement or fill the vacancy by special election. It did not decide whether the council could leave the seat vacant.

Background and statutory framework

Box Elder had a city council with three-year staggered terms. SDCL 9-13-14.1 refers to the aldermanic form of municipal government, under which a vacancy appointment must be a person from the same ward.

SDCL chapter 9-13 covered municipal elections. SDCL 9-13-1 set the annual municipal election date (second Tuesday of April). SDCL 9-13-5 allowed cancellation of the election if no question was to be submitted to voters or if no opposing candidates filed. SDCL 9-13-14.1 governed vacancy filling.

The interaction of these provisions created the question Box Elder faced. The statute set an annual April election, while an election need not be held if there was no question for voters. The vacancy potentially created a contest for the remainder of the vacant term.

The AG concluded that an appointee seeking to retain the seat had to run at the 2016 annual election despite the city's staggered terms. If there were no opposing candidates, the city need not hold that election.

Jackley cited Puetz Corp. v. SD Dept. of Revenue for the general rule that statutory construction begins with the text. Jackley, rather than the court in Puetz, concluded that reading "next annual municipal election" as "next regularly scheduled municipal election" would improperly add words to SDCL 9-13-14.1.

Attorney General Marty J. Jackley signed the opinion.

Citations and references

Statutes:

• SDCL 9-13-14.1 (vacancy on municipal governing body; appoint until next annual election or special election)
• § 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)
• § 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

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1680

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