November 14, 2009 - Circuit Judge Kathleen Trandahl ruled Friday afternoon, November 13th there are sufficient valid signatures on petitions to refer the ban to a statewide vote next year. After a two-day trial, Trandahl restored a net total of 2,261 signatures which Secretary of State Chris Nelson previously ruled were invalid. Before that, the petitions had stood 17 signatures short of the 16,776 minimum needed to make the ballot.
Her decision remains subject to a possible appeal to the South Dakota Supreme Court by Nelson or the American Cancer Society, which lobbied for the law and intervened in the lawsuit. Nelson and a cancer society official each said no decision has been made yet regarding an appeal.
The judge said Nelson properly did his job in reviewing the signatures. She said state law gives the secretary of state “no discretion” regarding validity of signatures. State law however also calls for petitions to be “liberally construed” and past state Supreme Court decisions give the courts the discretion to determine if there has been “substantial compliance.”
Consequently, Trandahl said the court has a different standard of review. She found there are 19,020 valid signatures on the referendum petitions. That is 2,244 more than needed.
Trandahl ruled that voters' signatures should be counted on petition sheets where notaries listed incorrect dates for the expirations of their state commissions.
She also declared valid the signatures on petition sheets where notaries didn't provide the complete month, day and year for the dates when they witnessed the petition circulators' signed oaths that the circulators followed the laws in gathering the signatures. “The only errors were clerical errors,” the judge said.
Those two decisions restored nearly 3,000 signatures which Nelson previously found invalid. Altogether there were 26 categories of reasons why signatures were in dispute. The final tally given by the judge showed 25,400 signatures were submitted; 6,380 are invalid; and 19,020 are valid.
The Legislature passed the ban against smoking in bars, casinos and restaurants with alcohol licenses last winter (of 2009). The legislation was sponsored by Rep. Bob Faehn, R-Watertown, and Sen. Dave Knudson, R-Sioux Falls. Gov. Mike Rounds signed it into law March 30. The ban was supposed to take effect July 1, but four businessmen sponsored a petition drive to refer it to a statewide vote. Secretary of State Nelson originally declared there were sufficient signatures on the petitions.
A challenge led by American Cancer Society government relations director Jennifer Stalley of Pierre caused Nelson to further examine the petitions. He then found they were short of valid signatures. The four businessmen — Mike Trucano of Deadwood, Don Rose and Pete Thompson of Sioux Falls and Mark O'Neill of Henry — who sponsored the petition drive then filed a lawsuit challenging Nelson's findings.
Rose said after the decision Friday that he remains confident citizens will vote down the expanded ban because of the potential loss of video lottery revenue, one of state government's largest sources of in-state income.
Video lottery has won every time it's been tested at the ballot box in South Dakota during the past 20 years.
“People are going to vote their pocketbooks again,” Rose said. As to whether the sides might appeal, he added, “I think they'll consider it.” The petition sponsors were represented in court by attorney Sara Frankenstein and Quentin Riggins of Rapid City. “We've seen many technicalities, but we've seen no fraud or deceit,” Frankenstein said in her closing argument.
Earlier in the day 11 of the notaries public who left information off petition sheets or made other mistakes testified. Typical of their testimony was that of Penny Wenzel, bookkeeper at the Wessington Springs newspaper. She didn't put “2009” next to the April 20 date in the notary block on the back of the petition sheet. Asked why, she replied, “I have no idea," she said, adding that it was a clerical error. Another was Teresa Weber, a legal secretary at the Gellhaus law firm in Aberdeen. “It was a clerical error on my part,” she said.
The cancer society's Stalley said she was “obviously disappointed” with the results.
Stalley said she and the organization's lawyer in the case, Richard Casey of Sioux Falls, would go through the judge's decision category by category, once it's in written final form, before deciding whether to appeal. “Regardless of appeals or the outcome, I think everybody will take notarization a little more seriously tomorrow,” Stalley said.
Secretary of State Nelson said he thought some of the judge's rulings on various categories reached beyond substantial compliance. He said he'll meet with Attorney General Marty Jackley and the lawyers who represented him from the AG's office to discuss a possible appeal. Nelson noted that the judge found he had fulfilled his ministerial duties as secretary of state. “That's the No. 1 thing we were looking for,” he said.
One of the murky areas that the judge had to decide was who is a qualified voter eligible to sign petitions. She declared valid the signatures of 255 signers whom Nelson had ruled invalid because they are in a category known as inactive: registered voters who haven't voted in at least four years and haven't responded to notices sent to them. Inactive voters can show up at their polling place on election day and vote after filling out a new registration card. Unregistered voters don't get to do that. The judge said she found it hard to prohibit inactive voters from signing a petition when they can still vote. “This is probably the most difficult one to sort through,” the judge said.
Two Pierre men, Rob Goll and Curt Curtis, testified on Thursday that they thought they were still registered voters. Both were on the inactive list, and Nelson didn't count their signatures. Neither had told the county auditor he had moved from the address on the original registration. “I didn't think I had to,” Goll said.
Deputy attorney general Sherri Sundem Wald in her closing argument urged the judge to be cautious about applying the standard of substantial compliance. She warned it was “a slippery slope.” “They must get it right and not rely on the court to get close enough,” Wald said. “Your honor, this isn't a game of horseshoes.”
Reference: STATE: Smoking ban can go to vote, judge rules by Bob Mercer, American News Correspondent - AberdeenNews.com, 11/13/2009
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