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Larson v. Krebs

Supreme Court of South Dakota

June 21, 2017

DAVID J. LARSON, Plaintiff and Appellee,
v.
SHANTEL KREBS, as Secretary of State for the State of South Dakota, Defendant, and ELAINE WULFF, as Auditor, Buffalo County, South Dakota Defendant and Appellee, and DEDRICH R. KOCH, Candidate for election, Defendant and Appellant. STEVEN R. SMITH, Plaintiff and Appellee,
v.
SHANTEL KREBS, as Secretary of State for the State of South Dakota, Defendant, and PAMELA MICHALEK, as Auditor for Lyman County, Defendant and Appellee, and THERESA MAULE ROSSOW, Candidate for election, Defendant and Appellant.

          CONSIDERED ON BRIEFS FEBRUARY 13, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BUFFALO COUNTY, SOUTH DAKOTA THE HONORABLE DAVID R. GIENAPP Retired Judge

          ALBERT STEVEN FOX JESSICA HEGGE of Larson Law, PC Chamberlain, South Dakota Attorneys for plaintiff and appellee David J. Larson #27956.

          RICHARD J. RYLANCE, II of Morgan Theeler LLP Mitchell, South Dakota Attorneys for defendant and appellee Elaine Wulff #27956.

          STEVEN R. SMITH Chamberlain, South Dakota Pro se plaintiff and appellee #27957.

          THERESA MAULE ROSSOW Chamberlain, South Dakota Pro se defendant and appellant #27957.

          KERN, Justice.

         [¶1.] Prior to the 2016 general election, Theresa Maule Rossow and Dedrich Koch each filed separate nominating petitions to seek election as State's Attorneys in two counties. Maule Rossow filed in Brule County and then Lyman County, while Koch filed in Jerauld County and then Buffalo County. Competitors in all four counties brought suit in separate cases, seeking to prevent Maule Rossow and Koch from running for State's Attorney in more than one county at a time. In the Lyman and Buffalo Counties suits, the circuit court ruled that the candidate's second filings violated SDCL 12-6-3's prohibition against dual candidacies and thus were invalid. Maule Rossow and Koch appeal. Although the issue is now moot, we decide the case under an exception to the mootness doctrine. We also consolidate Maule Rossow and Koch's appeals because they raise the same issue. We affirm.

         BACKGROUND

         Theresa Maule Rossow's Appeal

         [¶2.] Maule Rossow is an attorney and resident of Brule County, South Dakota. On January 21, 2016, she filed a nominating petition with the Brule County Auditor to run as an Independent candidate for election as Brule County State's Attorney. Maule Rossow filed a second nominating petition on February 12, 2016, with the Lyman County Auditor to run as an Independent candidate for election as Lyman County State's Attorney.

         [¶3.] Although not a resident of Lyman County, Maule Rossow was not precluded from seeking office on the basis of residency. Pursuant to SDCL 7-16-31, in any county with a population of less than 5, 000 persons, a State's Attorney is not "disqualified from holding office for failure to be a resident of that county if the state's attorney is a resident of a county which is contiguous to the county in which the state's attorney holds office." Brule and Lyman Counties are adjacent to each other. According to the 2010 census, all four counties have populations of less than 5, 000 persons. The State's Attorney positions for the involved counties are part-time and were to be filled by the voters in each county at the November 8, 2016 general election. Residents of the respective counties could vote only for the State's Attorney candidates seeking office in their county.

         [¶4.] On April 26, 2016, Steven R. Smith filed a nominating petition with the Lyman County Auditor to run as an Independent candidate for election as Lyman County State's Attorney. Smith filed a lawsuit against Secretary of State Shantel Krebs, Lyman County Auditor Pamela Michalek, and Maule Rossow, seeking a writ of prohibition to prevent Maule Rossow's name from appearing on the ballot for State's Attorney in Lyman County during the November 2016 election. Smith alleged that SDCL 12-6-3 prevented Maule Rossow from seeking public office in Brule and Lyman Counties in the same general election. Additionally, David Natvig, a candidate for State's Attorney in Brule County, filed suit against Secretary of State Shantel Krebs, Brule County Auditor Pamela Petrak, and Maule Rossow, seeking to prevent Maule Rossow's name from appearing on the ballot in Brule County for the same reason.

         Dedrich ...


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