February 16, 2016.
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, HUGHES
COUNTY, SOUTH DAKOTA. THE HONORABLE KATHLEEN F. TRANDAHL,
SIMPSON, EDWARD D. GREIM of, Graves Garrett, LLC, Kansas
City, Missouri and REBECCA L. MANN, SARA FRANKENSTEIN of,
Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, South
Dakota, Attorneys for appellant.
J. JACKLEY, Attorney General; PATRICIA ARCHER, STEVEN R.
BLAIR, Assistant Attorneys General, Pierre, South Dakota,
Attorneys for appellee.
Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
KERN, Justices, concur.
[¶1] In this writ of certiorari action, the
applicant asserted that the Attorney General failed to
prepare an adequate ballot explanation under SDCL 12-13-25.1.
The ballot explanation related to a proposed measure to
regulate the maximum finance charge certain lenders can
impose on certain loans. The applicant, an opponent to the
proposed measure, alleged that the Attorney General's
explanation does not educate the voters that the purpose and
effect of the measure is to ban short-term lending in South
Dakota. After a hearing, the circuit court issued an order
denying the application for a writ. The applicant appeals. We
[¶2] Then-State Representative Steve Hickey
sponsored an initiated measure to be certified for the
November 2016 general election. If adopted, the measure would
impose a maximum finance charge against certain lenders for
specific types of loans. Before a petition for an initiated
measure can be circulated for signatures, the sponsor of the
measure must submit a final version to the South Dakota
Attorney General. SDCL 12-13-25.1. On April 1, 2015,
Representative Hickey submitted a copy of the final version
to Attorney General Marty Jackley.
[¶3] Under SDCL 12-13-25.1, Attorney General
Jackley must prepare a title and explanation related to the
measure. " The title shall be a concise statement of the
subject of the proposed initiative[.]" Id.
" The explanation shall be an objective, clear, and
simple summary to educate voters of the purpose and effect of
the proposed initiated measure[.]" Id. The
Attorney General must also " include a description of
the legal consequences of the proposed . . . measure[.]"
Id. " The explanation may not exceed two
hundred words in length."
[¶4] In regard to this measure, Attorney
General Jackley drafted the following title and explanation:
Title: An initiated measure to set a maximum finance charge
for certain licensed money lenders.
The initiated measure prohibits certain State-licensed money
lenders from making a loan that imposes total interest, fees
and charges at an annual percentage rate greater than 36%.
The measure also prohibits these money lenders from evading
this rate limitation by indirect means. A violation of this
measure is a misdemeanor crime. In addition, a loan made in
violation of this measure is void, and any principle, fee,
interest, or charge is uncollectable.
The measure's prohibitions apply to all money lenders
licensed under South Dakota Codified Laws chapter 54-4. These
licensed lenders make commercial and personal loans,
including installment, automobile, short-term consumer,
payday, and title loans. The measure does not apply to state
and national banks, bank holding companies, other federally
insured financial institutions, and state chartered trust
companies. The measure also does not apply to businesses that
provide financing for goods and services they sell.
27, 2015, Attorney General Jackley filed the title and
explanation with the Secretary of State and submitted a copy
to the sponsor. SDCL 12-13-25.1.
[¶5] On June 5, 2015, Erin Ageton, an
opponent of the measure, filed an application for a writ of
certiorari in circuit court
to challenge the Attorney General's explanation. She
asserted that the Attorney General did not comply with his
legal duties under SDCL 12-13-25.1 because his explanation
failed to educate the voters about the measure's true