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Ageton v. Jackley

Supreme Court of South Dakota

March 30, 2016

ERIN AGETON, Appellant,
v.
MARTY J. JACKLEY, in his capacity as South Dakota Attorney General, Appellee

         Argued February 16, 2016.

          APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, HUGHES COUNTY, SOUTH DAKOTA. THE HONORABLE KATHLEEN F. TRANDAHL, Judge.

         ALAN T. 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.

         MARTY J. JACKLEY, Attorney General; PATRICIA ARCHER, STEVEN R. BLAIR, Assistant Attorneys General, Pierre, South Dakota, Attorneys for appellee.

         WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.

          OPINION

Page 91

          WILBUR, Justice

          [¶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 affirm.

         Background

          [¶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.

Explanation:

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.

         On May 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

Page 92

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 purpose ...


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