If you want to pull a piece of land out of a South Dakota sanitary district, how many petition signatures do you need? Is it 20% of all voters in the district, or 20% of votes cast for the top trustee at the last election?

Plain-English summary

A petition asked the Spring Creek Cow Creek Sanitary District to exclude real property from its boundaries. Ten people signed. After a hearing was set and the Sully County Commission approved a proposed exclusion resolution, the district board tabled it to review issues surrounding the proposed exclusion. Counsel asked AG Mark Vargo how to calculate the petition signature threshold in SDCL 34A-5-42.

The statute required signatures from "not 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." Vargo concluded that the qualifying phrase supplies the denominator: at least 20% of the votes received by the highest-vote trustee at the last annual election, signed by legal voters who reside in the district. It is neither 20% of all resident voters nor 20% of all votes cast in that election.

Vargo gave an example. If three trustee candidates received 40, 35, and 25 votes, the relevant total is the leading candidate's 40 votes. Twenty percent of 40 is eight signatures. The number of votes cast across all candidates does not replace the top trustee's vote count.

The opinion's subject line also mentions tolling under SDCL 34A-5-44. The published opinion poses and answers only the signature-calculation question. It does not analyze tolling.

Currency note

This opinion was issued in 2022. Verify the current text of SDCL 34A-5-42 and any later decisions before using its calculation for a current petition. The opinion does not decide whether the ten-signature petition in the facts met the threshold, because it does not state the leading trustee's vote total at the relevant election.

What this means for you

Sanitary district board or counsel

Use the number of votes received by the trustee who won the most votes at the last annual district election as the base for the 20% calculation. The signatures must come from legal voters residing in the district. The opinion does not decide how the board must process an otherwise sufficient petition or whether exclusion must be approved.

Landowners preparing an exclusion petition

Find the top trustee's vote total at the last annual district election before calculating the signature target. In Vargo's 40-vote example, the statute calls for at least eight signatures from resident legal voters. The opinion does not decide what happens if the district has never held an annual election.

County officials

The facts state that the Sully County Commission approved a proposed resolution as required by SDCL 34A-5-43. Vargo's legal answer concerns only the petition signature calculation. It gives no rule about the county's review of a petition or the later exclusion process.

Common questions

Q: Is the base every registered voter in the district?
A: No. Vargo said that reading would erase the statutory phrase "as shown by the vote for" the trustee who received the highest vote at the preceding annual election.

Q: Is the base all votes cast for all trustee candidates?
A: No. In the opinion's example, the candidates received 40, 35, and 25 votes. The base was the leading candidate's 40 votes, producing a requirement of eight signatures.

Q: Did the AG decide whether this particular ten-signature petition was enough?
A: No. The opinion states that ten people signed the petition but does not give the top trustee's actual vote total or a decision on the petition's sufficiency.

Q: Did this opinion decide when the limitations period is tolled?
A: No. Tolling appears in the subject line, but the question, analysis, and conclusion address only the signature threshold.

Why the AG read the statute this way

Vargo treated "as shown by the vote for" the leading trustee as a limit on how to count the legal voters mentioned earlier in SDCL 34A-5-42. Reading the threshold as 20% of all district voters would leave that qualifying language with no effect. He cited Steinberg v. South Dakota Dep't of Military and Veterans Affairs for the rule against treating statutory words as surplusage.

He also rejected using 20% of total votes cast at the trustee election. That reading would add words the statute did not contain. The opinion cited Holborn v. Deuel County Board of Adjustment and Martinmass v. Engelmann for the rule that an interpreter cannot add language the Legislature omitted.

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1758

Original opinion text

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:

QUESTION:

• How should SDCL 34A-5-42 be interpreted in calculating the number of petition signatures required to exclude territory from a sanitary district?

ANSWER:

• 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.

FACTS:

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.

SDCL 34A-5-42.

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.

CONCLUSION

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].

Sincerely,

Mark A. Vargo

ATTORNEY GENERAL

MAV/SRB/dd