#28531-a-SRJ 

2018 S.D. 69 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

DOYLE THOMPSON, DEBRA 

HUBER, ALLEN SKATVOLD and 

DENNIS D. EVENSON, Petitioners and Appellants, 

 

v. 

PAM L. LYNDE, in her capacity as 

Deuel County Auditor; and LYNN 

PEDERSON, STEVE RHODY, GARY 

JAEGER, DEANNE DUMKE, and 

GARY DEJONG, in their capacities as 

Deuel County Commissioners, Respondents and Appellees. 

 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE THIRD JUDICIAL CIRCUIT 

DEUEL COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE CARMEN MEANS 

Judge 

* * * * 

THOMAS F. BURNS Attorney for petitioners 

Watertown, South Dakota and appellants. 

DANNY R. SMEINS Attorney for respondents 

Britton, South Dakota and appellees. 

* * * * 

 

 CONSIDERED ON BRIEFS ON 

 AUGUST 27, 2018 

 OPINION FILED 09/26/18
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JENSEN, Justice 

[¶1.] The Appellants submitted three petitions to the Deuel County Auditor 

seeking referendum on an ordinance amending the Wind Energy System (WES) 

Requirements of the Deuel County Zoning Ordinance. The Auditor rejected two of 

the petitions, leaving an insufficient number of valid signatures to trigger a 

referendum election. The Appellants appeal the circuit court’s denial of an 

application for a writ of mandamus. We affirm. 

Background 

[¶2.] On May 23, 2017, the County Commissioners of Deuel County, South 

Dakota passed Ordinance B2004-01-23B. The title of the ordinance read: 

Ordinance B2004-01-23B 

AN ORDINANCE ENTITLED, An Ordinance to amend Section 

1215 Wind Energy System (WES) Requirements Adopted by 

Ordinance B2004-01, July 6, 2004, as amended, of the Zoning 

Ordinance of Deuel County. 

The Auditor’s notice of adoption of the ordinance was published on May 31, 2017. 

[¶3.] After the notice was published, the Appellants began circulating 

petitions to obtain the necessary signatures to refer the ordinance for a special 

election. The Appellants circulated three different petitions (Petition 1, Petition 2, 

and Petition 3). All three petitions were timely submitted to the Auditor. 

[¶4.] On July 11, 2017, the Auditor informed the Appellants that only 

Petition 1, containing 19 signatures, was accepted. The Auditor rejected Petitions 2 

and 3 for failing to comply with SDCL 7-18A-17. The Auditor noted that Petition 2, 

containing 51 signatures, was missing the title of the ordinance, and Petition 3, 

containing 252 signatures, was missing the words “Wind Energy Systems (WES) 
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Requirements” from the title of the ordinance as well as the date the ordinance was 

passed.1 After rejecting Petitions 2 and 3, the Auditor determined that the 

Appellants had collected only 19 of the 145 signatures needed for a referendum on 

the ordinance. 

[¶5.] The Appellants sought a writ of mandamus to compel the Auditor to 

accept the rejected petitions and schedule a special election on the ordinance. The 

issue was submitted to the circuit court on affidavits and written arguments. The 

court denied the application for writ of mandamus determining that Petitions 2 and 

3 were properly rejected by the Auditor because they did not substantially comply 

with the statutory requirements of SDCL 7-18A-17. The Appellants appeal the 

circuit court’s decision as to Petition 3, asking this Court to determine that Petition 

3 substantially complied with the requirements of SDCL 7-18A-17. 

Standard of Review 

[¶6.] “This Court reviews the decision to grant or deny a writ of mandamus 

under an abuse of discretion standard.” Coester v. Waubay Twp., 2018 S.D. 24, ¶ 7, 

909 N.W.2d 709, 711 (quoting Krsnak v. S.D. Dep’t of Env’t & Nat. Res., 2012 S.D. 

89, ¶ 8, 824 N.W.2d 429, 433). “An abuse of discretion is ‘a fundamental error of 

judgment, a choice outside the reasonable range of permissible choices, a decision 

that, on full consideration, is arbitrary or unreasonable.’” Id. (quoting Wald, Inc. v. 

 

1. Petition 3 described the ordinance as follows: 

Ordinance B2004-01-23B an Ordinance amending Section 1215 

adopted by Ordinance B2004-01 July 6, 2004, as amended, of the 

Zoning Ordinance of Deuel County. 
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Stanley, 2005 S.D. 112, ¶ 8, 706 N.W.2d 626, 629). “[S]tatutory interpretation and 

application are questions of law that we review de novo.” Id. (quoting Krsnak, 

2012 S.D. 89, ¶ 8, 824 N.W.2d at 433).

Analysis 

[¶7.] The Appellants argue that the circuit court abused its discretion in 

denying the writ of mandamus because the defects in Petition 3 were mere 

technicalities presenting no reasonable risk of confusion, fraud, or corruption. See 

Headley v. Ostroot, 76 S.D. 246, 249, 76 N.W.2d 474, 475–76 (1956) (stating that 

substantial compliance with statutes relating to petition and referendum is 

necessary to “prevent fraud or corruption in securing the petitions”).2 The 

Appellees argue that the circuit court acted within its discretion in denying 

mandamus relief because the Auditor properly rejected Petition 3 for failing to 

comply with the requirements of SDCL 7-18A-17. 

[¶8.] A writ of mandamus “is an extraordinary remedy that will issue only 

when the duty to act is clear.” Baker v. Atkinson, 2001 S.D. 49, ¶ 16, 625 N.W.2d 

265, 271. This Court has stated that, 

[m]andamus is a potent, but precise remedy. Its power lies in its 

expediency; its precision in its narrow application. It commands 

the fulfillment of an existing legal duty, but creates no duty 

 

2. The Appellants also argue that Petition 3 substantially complied with SDCL 

7-18A-17 because the description of the ordinance on the rejected petition is 

the same description used by the Auditor in the published notice of adoption. 

However, unlike Petition 3, the body of the Auditor’s notice contained the full 

title of the ordinance, identifying that the ordinance amended the “Wind 

Energy System (WES) Requirements” of the Deuel County Zoning Ordinance. 

Additionally, the Auditor’s notice set forth the entire text of the amended 

ordinance, the date of passage, and the date the ordinance would become 

effective. There is nothing in the Auditor’s notice that was misleading or 

otherwise excused the Appellants’ substantial compliance with the statute.
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itself, and acts upon no doubtful or unsettled right. To prevail 

in seeking a writ of mandamus, the petitioner must have a clear 

legal right to performance of the specific duty sought to be 

compelled and the respondent must have a definite legal 

obligation to perform that duty. 

Sorrels v. Queen of Peace Hosp., 1998 S.D. 12, ¶ 6, 575 N.W.2d 240, 242 

(citations omitted). 

[¶9.] SDCL 2-1-11 provides that petitions for referendum “shall be liberally 

construed, so that the real intention of the petitioners may not be defeated by a 

mere technicality.” “For this reason, ‘we begin with a presumption that petitions 

which are circulated, signed, and filed are valid.’” Baker, 2001 S.D. 49, ¶ 18, 

625 N.W.2d at 271 (quoting Larson v. Hazeltine, 1996 S.D. 100, ¶ 19, 552 N.W.2d 

830, 835). However, the statutory requirements “governing a referendum petition 

are substantial in character and not merely requirements of form.” Id. ¶ 19 

(quoting Bjornson v. City of Aberdeen, 296 N.W.2d 896, 899 (S.D. 1980)). “These 

requirements, must, therefore, have been substantially complied with in order to 

render the petition valid.” Id. (quoting Bjornson, 296 N.W.2d at 899). 

[¶10.] Substantial compliance means 

actual compliance in respect to the substance essential to every 

reasonable objective of the statute. It means that a court should 

determine whether the statute has been followed sufficiently so 

as to carry out the intent for which it was adopted. Substantial 

compliance with a statute is not shown unless it is made to 

appear that the purpose of the statute is shown to have been 

served. What constitutes substantial compliance with a statute 

is a matter depending on the facts of each particular case. 

Id. (quoting Larson, 1996 S.D. 100, ¶ 19, 552 N.W.2d at 835). 

[¶11.] The plain language of SDCL 7-18A-17 requires a referendum petition 

to include the title and date of passage of an ordinance:
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If the matter intended to be covered by a referendum petition is 

the whole of any ordinance or resolution, the petition shall 

contain the title of such ordinance or the subject of such 

resolution, and the date of its passage, but if only a portion of 

such ordinance or resolution is intended to be covered by the 

petition, such portion shall be set out at length. 

(Emphasis added.) 

[¶12.] Petition 3 included the ordinance number and section of the 

zoning ordinance that was amended, but the Petition failed to identify the 

full title of the ordinance—namely that the amended zoning ordinance 

involved “Wind Energy System (WES) Requirements.” The Petition also 

failed to provide the date of the ordinance’s passage. In Baker, this Court 

noted that SDCL 7-18A-17 requires a referendum petition to contain the title 

and date the challenged ordinance passed, stating, that “Those are the 

express conditions set forth in the governing statutes.” 2001 S.D. 49, ¶ 21, 

625 N.W.2d at 272. 

[¶13.] These express conditions in SDCL 7-18A-17 ensure that the face 

of the referendum petition readily informs a prospective signatory of the 

nature of the challenged ordinance, the date of its passage, and that the 

voter’s signature corresponds to the actual ordinance being challenged. To 

excuse compliance with these requirements would frustrate the statute’s 

purposes. Because Petition 3 failed to substantially comply with the 

requirements of SDCL 7-18A-17, the circuit court properly denied the 

Appellants’ petition for writ of mandamus. 

[¶14.] GILBERTSON, Chief Justice, ZINTER, KERN, and SALTER, 

Justices, concur.