#23949-a-MILLER, Retired Justice 

2006 SD 112

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

DEB ANDERSON, Petitioner and Appellant, 

v. 

THE CITY OF TEA, SOUTH DAKOTA, 

A Municipal Corporation, JOHN M. 

LAWLER, as Mayor of the City Of 

Tea and THE CITY COUNCIL MEMBERS, 

ERIC LEVAN, HERMAN OTTEN, DEANNA 

ERNSTER, SCOTT CZEPULL, SIDNEY 

MUNSON AND JO NILES, Respondents and Appellees. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SECOND JUDICIAL CIRCUIT 

LINCOLN COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE BRADLEY G. ZELL 

Judge 

* * * * 

THOMAS H. FRIEBERG 

KATHRYN A. RITTER, Intern 

Frieberg, Nelson & Ask, LLP 

Beresford, South Dakota Attorneys for petitioner 

 and appellant. 

JASON M. HARRIS of 

Danforth & Meierhenry, LLP 

Sioux Falls, South Dakota Attorneys for respondents 

and appellees. 

* * * * 

CONSIDERED ON BRIEFS 

ON AUGUST 28, 2006 

 OPINION FILED 12/06/06
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MILLER, Retired Justice 

[¶1.] In this appeal we affirm the circuit court and hold that petitions 

seeking to bring a municipal ordinance to a public vote do not conform to statutory 

requirements. 

[¶2.] Deb Anderson objected to a resolution adopted by the City of Tea that 

required the construction of sidewalks along various streets and avenues in the 

municipality. She and others circulated petitions among the residents of Tea 

attempting to refer the resolution to a public vote. The petitions were filed with the 

city finance officer, but rejected for failure to conform with statutory formatting 

guidelines. Anderson requested a writ of mandamus from the circuit court seeking 

to compel the City to conduct the election. The circuit court, following a hearing, 

denied Anderson’s request “because the Petitions were not self-contained as 

required by South Dakota law.” Anderson appeals. We affirm. 

Facts and Procedural History 

[¶3.] The parties stipulated to the following basic facts. 

• On February 7, 2005, the City of Tea, acting through its 

Common Council adopted Resolution No. 05-02-03 entitled 

Resolution of Necessity—Resolution Declaring the Necessity 

to Construct Sidewalk on Various Streets and Avenues in 

Tea, South Dakota and Assessing the Cost of Each Lot or 

Tract of Land Benefiting Thereby (hereinafter “Resolution”). 

• Resolution No. 05-02-03 was published in the Tea Champion

on February 23, 2005. 

• Within twenty (20) days of the publication of Resolution No. 

05-02-03, Anderson with assistance of legal counsel and in 

conjunction with other qualified electors of the City of Tea, 

prepared, circulated, and signed petitions protesting the 

passage of the resolution and petitioning that the resolution 

be submitted to a vote of the qualified and registered electors 

of the City of Tea for their approval or rejection, as provided 

by law. 
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• The signatures contained a sufficient number of qualified 

voters in order to require a referendum election on the 

resolution of necessity. 

• On March 14, 2005, all of the petitions so circulated were 

filed with the finance officer for the City of Tea. 

• Based upon advice of the Secretary of State and legal 

counsel, it was determined that the referendum petitions did 

not conform to the requirements of State Law. 

[¶4.] The appeal raises the following issue: 

Did the circuit court err in determining that the 

referendum petitions did not conform to South Dakota law? 

Standard of Review 

[¶5.] Our rules of statutory construction are as follows: 

 Questions of law such as statutory interpretation are reviewed 

 by the Court de novo. . . . 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. The intent of a statute is determined from what the 

 legislature said, rather than what the courts think it should 

 have said, and the court must confine itself to the language 

 used. Words and phrases in a statute must be given their 

 plain meaning and effect. When the language in a statute 

 is clear, certain and unambiguous, there is no reason for 

 construction, and the Court’s only function is to declare the 

 meaning of the statute as clearly expressed. Since statutes 

 must be construed according to their intent, the intent must 

 be determined from the statute as a whole, as well as enactments 

 relating to the same subject. But, in construing statutes together 

 it is presumed that the legislature did not intend an absurd 

 or unreasonable result. When the question is which of two 

 enactments the legislature intended to apply to a particular 

 situation, terms of a statute relating to a particular subject 

 will prevail over the general terms of another statute. 

Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612 NW2d 600, 611 (quoting Moss v. 

Guttormson, 1996 SD 76, ¶10, 551 NW2d 14, 17 (citing U.S. West Communications, 

Inc. v. Public Util. Comm’n, 505 NW2d 115, 122- 23 (SD 1993) (citations omitted)). 
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Analysis and Decision 

[¶6.] The sole issue before this Court is whether each page of a municipal 

referendum petition must be signed and verified by the circulator. Anderson argues 

that the circuit court erred when it determined that the referendum petitions were 

not self-contained because only the last, rather than each individual page, contained 

the required verification. She argues that only SDCL 9-20-9 applies to municipal 

referendums and that SDCL 2-1-9, which requires that each page of a petition must 

be verified, is not applicable to municipal election petitions. 

[¶7.] This Court previously addressed the issue of verification in two key 

cases. First, in Corbly v. City of Colton, 278 NW2d 459 (SD 1979), the Court 

analyzed SDCL 9-20-9, SDCL 2-1-10 and SDCL 2-1-11, as they read at the time, to 

determine if a referendum petition can be valid without a verifying affidavit by the 

circulator. 

[¶8.] In examining the issue of verification, this Court held that 

“[v]erification, as used in connection with referendum petitions, means the swearing 

under oath by the circulator that he or she has personally circulated the petition 

and attests to the validity of the signatures.” Id. at 461 (citing Nist v. Herseth, 270 

NW2d 565 (SD 1978)). “Requirements for circulation and verification of referendum 

petitions, whether statutory or administratively adopted, are substantial in 

character and not merely requirements of form.” Id. (citing Nist, 270 NW2d 565 

(SD 1978); Headley v. Ostroot, 76 SD 246, 76 NW2d 474 (1956)). Therefore, 

verification requirements must “have been substantially complied with in order to 

render the petition valid.” Id. 
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[¶9.] In reiterating that the provisions of SDCL chapter 2-1 are applicable to 

municipal elections, we held in Baker v. Jackson, 372 NW2d 142 (SD 1985),

that SDCL 2-1-9 and 2-1-10 are likewise applicable to the process of circulating 

municipal referendum petitions.1 The issue in Baker was almost identical to the 

question before us today. The Baker court was asked to determine whether every 

single sheet of a fastened, multiple-page referendum petition must contain a correct 

heading and a properly notarized verification statement. Id. at 144. 

[¶10.] In answering that question, this Court’s task was to examine the 

referendum petition “in light of all the dictates promulgated by the applicable 

constitutional provisions, legislative statutes and administrative rules, rather than 

to read the requirements of each in isolation.” Id. at 145. We then analyzed SDCL 

9-20-9, 9-20-10, 2-1-9 and 2-1-10. Id. At the time, SDCL 2-1-9 provided: 

It shall not be necessary that one paper shall contain all the 

signatures, but a single petition may be made up of one or 

more papers, each having the requisite heading. Separate 

papers, in proper form and duly signed, may, before filing, 

be bound together and shall be regarded as one petition and 

shall be sufficient if the aggregate number of signatures upon 

all is not less than the number required by this chapter. Blank 

lines upon additional sheets securely fastened to a top sheet, 

having the prescribed heading, may be used in obtaining 

signatures, and shall be regarded, together with the top sheet 

having the proper heading, as one paper. 

1. In Baker, we also held that under the South Dakota Constitution Article III, 

§ 1, both legislative and administrative acts are subject to referendum 

election. 372 NW2d at 148-49. This part of the decision in Baker was later 

abrogated by legislation excluding administrative decisions from the 

referendum process. See 1986 SD Laws ch 73, §§ 1-3 codified at SDCL 9-20-

18, 9-20-19 and 7-18A-15.1 respectively. 
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SDCL 2-1-9 (amended 1986). In considering that statute, as well as SDCL 2-1-10 

and ARSD 5:02:08:00(3), we concluded in Baker that a municipal referendum 

petition could be valid in the following three forms: 

First, a valid municipal referendum petition may consist of 

 separate sheets that [are] circulated individually if every such 

 sheet contains an appropriate heading. All such sheets, which 

 [are] circulated by a particular circulator, can then be bound 

 together and verified by attaching a properly notarized 

 verification statement as a last page to the bound sheets. 

 Such a petition comports with the dictates of SDCL 2-1-9, 

SDCL 2-1-10, and ARSD 5:02:08:00(3). Second, a valid 

municipal referendum petition may consist of a first page 

containing the appropriate heading which is securely fastened 

to other pages containing blank lines but no headings. This 

petition can then be verified by attaching a properly notarized 

verification statement, by the person who circulated that 

particular petition, to the end of the petition. This complies 

with the statutory requirements set forth in SDCL 2-1-9 and 

SDCL 2-1-10 and constitutes a valid petition. Finally, as 

appellant contends, every single sheet of a valid municipal 

referendum petition can have the appropriate heading and 

a properly notarized verification statement. This, however, 

is not required if the petition is in one of the above forms and, 

of course, would be required if every sheet is circulated by a 

different person. 

Id. at 145-46. 

[¶11.] In Baker, we again discussed the importance of the statutory 

verification requirements of SDCL 2-1-10. 

SDCL 2-1-10 requires the circulator to make and attach to the 

petition an affidavit. This affidavit establishes the genuineness 

of the signatures on the petition, Morford v. Pyle, 53 SD 356, 

360, 220 NW 907, 909 (1928), and by attaching the verification 

statement to the end of the petition, the circulator is attesting 

to the genuineness of all the signatures on the entire petition. 

This requirement, coupled with the heading requirements of 

the . . . two forms [that constitute valid multi-page petitions 

when circulated by one individual], is sufficient to prevent 
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the inclusion or introduction of petition sheets . . . circulated by 

ghost-circulators as was the case in Nist v. Herseth, 270 NW2d 

 565 (SD 1978). 

Id. at 146. Therefore, based solely on our prior holding in Baker, it would appear 

that Anderson’s petitions would be valid. Moreover, our statutes have traditionally 

indicated that referendum petitions are to be liberally construed as being in 

compliance with the law. See SDCL 2-1-11 (1939); 9-20-10 (1957) (formerly SDC § 

45.1012 (1939)). Since our decision in Baker, however, it is apparent from 

amendments made to the statutes that the legislature intended to increase the 

stringency of petition verification requirements. 

[¶12.] In addition to SDCL chapters 9-20 and 2-1, the provisions of SDCL 

chapters 12-12 and 9-133 are also applicable to municipal referendum elections. In 

defining petition, SDCL 12-1-3(8) states, “If multiple sheets of paper are necessary 

to obtain the required number of signatures, each sheet shall be self-contained and 

separately verified by the circulator[.]” SDCL 12-1-3(8) (2000). SDCL 9-13-11 

provides, “[A] petition may be composed of several sheets, which shall have identical 

headings and shall be verified under oath by the persons circulating it, attesting the 

legality of the signatures thereon.” SDCL 9-13-11 (1990). SDCL 2-1-9, amended 

 

2. SDCL 12-1-2 provides: 

The provisions of this title apply to . . . municipal . . . elections unless 

otherwise provided by the statutes specifically governing their 

elections or this title. 

3. SDCL 9-20-14 provides: 

The elections provided for in this chapter shall be governed by the 

provisions of chapter 9-13. . . . 
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since we cited it in Baker, now provides, “A single petition may be made up of one or 

more papers, EACH having the requisite heading and verification.” SDCL 2-1-9 

(1986) (emphasis added). 

[¶13.] When reading the existing applicable statutes together, it is clear that 

the legislature intended that in order to be valid, each sheet of paper in a circulated 

petition shall have a heading and a verification block. Although our statutes 

indicate that petitions are to be liberally construed, the fact that not one but several 

more recently enacted applicable statutes have set out verification requirements for 

each sheet of paper, clearly articulates the legislature’s overriding concern for the 

integrity of signature verification. 

[¶14.] The legislature has also mandated that the State Board of Elections 

promulgate rules prescribing the referendum petition format. SDCL 2-1-3, 2-1-10, 

9-20-9, 12-1-3(8), and 12-1-9. The format for municipal referendum petitions is 

published under ARSD 5:02:08:16. This form, like all other South Dakota election 

petition formats, follows the statutory requirement that each page of a petition 

must include a heading and a verification block. 

[¶15.] The record indicates that 19 petitions were circulated and 

subsequently submitted by Anderson and others. The petitions were multi-page 

and bound by a staple. The heading took up all of the first two pages and part of 

the third. The instructions and several signature lines were included on the third 

page. Varying numbers of additional signature pages without heading or 

verification block were included in each petition. The final signature page 

contained the introduction to a verification block with the circulator’s signature and 
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notarization running over onto a final additional page. These petitions do not 

conform to the unambiguous statutory requirements.4 

[¶16.] Affirmed. 

[¶17.] GILBERTSON, Chief Justice, and, SABERS, KONENKAMP, and 

ZINTER, Justices, concur. 

[¶18.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice, 

disqualified. 

 

4. A thorough review of the statutes applicable to the issue at question in this 

case reveals our legislature’s unmistakable concern for the potential that 

unverified signatures could be included in any petition, consisting of multiple 

sheets of paper that lacks verification on any sheet of paper therein. The 

onus thus falls on the petitioner to insure that each sheet of paper in a 

multiple-sheet petition is a self-contained document in compliance with our 

statutes and regulations.