Bohn v. Bueno

1

2024 S.D. 6

TAMMY BOHN, JUSTIN BOHN, and BRENDA VASKNETZ, Petitioners and Appella v. FAY BUENO, in her capacity as Finance Officer for the City of Sturgis; MARK CARSTENSEN, in his capacity as Mayor for the City of Sturgis; and MIKE BACHAND, ANGELA WILKERSON, DAVID MARTINSON, BEKA ZERBST, JASON ANDERSON, AARON JORDAN, DEAN SIGMAN, and KEVIN FORRESTER, in their capacities as Aldermen for the City of Sturgis, Respondents and Appellees.

TAMMY BOHN, JUSTIN BOHN, and BRENDA VASKNETZ, Plaintiffs and Appellants, v. CITY OF STURGIS, a South Dakota Municipal Corporation, and DANIEL AINSLIEE, Defendants and Appellees.

Nos. 30008-r-SPM, 30163-r-SPM

Supreme Court of South Dakota

February 7, 2024

ARGUED MAY 24, 2023

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA THE HONORABLE KEVIN KRULL Judge

KELLEN B. WILLERT of Bennett, Main, Gubbrud & Willert, P.C. Belle Fourche, South Dakota Attorneys for appellants.

ROBERT B. ANDERSON DOUGLAS A. ABRAHAM of May, Adam, Gerdes and Thompson, LLP Pierre, South Dakota Attorneys for appellees #30163.

MARK F. MARSHALL ERIC C. MILLER of City of Sturgis Sturgis, South Dakota Attorneys for appellees #30008.

MYREN JUSTICE

[¶1.] Appellants Tammy Bohn, Justin Bohn, and Brenda Vasknetz (Citizens) applied for a writ of mandamus against several city officials after the finance officer for the City of Sturgis (City) declined to certify their petition to hold an election to remove the position of city manager from the City's government. They sought a writ of mandamus requiring the finance officer to certify their petition and also requiring the city council to schedule and hold an election under their petition. The circuit court denied the writ by granting summary judgment in favor of the City. Citizens appeal. We reverse.

Factual and Procedural History

[¶2.] The current municipal government of the City is comprised of a mayor and aldermen. The City also employs a city manager. The voters created the city manager position through a 2007 election that added the position to the City's government.

[¶3.] Citizens were among a group that circulated petitions in late 2021 seeking to remove the city manager position from the City's government. The petition stated:

WE THE UNDERSIGNED qualified voters of the municipality of STURGIS, the state of South Dakota, petition, pursuant to SDCL § 9-11-6 and other applicable law, petition that the municipal government of STURGIS be changed as follows and that the proposal be submitted to the voters for their approval or rejection pursuant to SDCL § 9-11-5:

The form of government for the municipality of Sturgis should be changed from the current form of municipal government (aldermanic with a city manager form of government) to an aldermanic form of government without a city manager.

Like this petition, the election in 2007, which established the city manager position, was also petitioned under SDCL 9-11-6. That statute provides:

If a petition signed by fifteen percent of the registered voters of any municipality, as determined by the total number of registered voters at the last preceding general election is presented to the governing body, requesting that an election be called for the purpose of voting upon a question of change of form of government or upon a question of the number of wards, commissioners, or trustees, the governing body shall call an election to be held within fifty days from the date of the filing of the petition with the municipal finance officer. At that election, the question of the change of form of government or the number of wards commissioners, or trustees, or both, must be submitted to the voters. No petition is valid if filed more than six months after the circulation start date declared on the petition forms. If the petition is filed on or after January first prior to the annual municipal election and within sufficient time to comply with the provisions of § 9-13-14, the question may be submitted at that annual municipal election.

The election must be held upon the same notice and conducted in the same manner as other city elections.

SDCL 9-11-6 (emphasis added).

[¶4.] The petition containing approximately 900 signatures was filed with the city finance officer, Fay Bueno, on December 16, 2021. Instead of proceeding to certify the petition Bueno consulted with the city attorney and asked him to render a legal opinion on the propriety of the question presented in the petition, namely whether removing a city manager is a change in the "form of government" that could be petitioned under SDCL 9-11-6.

[¶5.] The city attorney prepared a report concluding that Bueno should not schedule an election because the question posed on the petition was improper. The report stated that employing a city manager was not a form of government and that, under SDCL 9-10-11^[1], only the city council could remove a city manager. The report further concluded that "[t]he city council should authorize an action for declaratory judgment in circuit court to determine whether the power to employ a city manager is a form of government."

[¶6.] The City posted a statement on its website on December 28, 2021, stating:

Based upon a discussion during a Special City Council meeting held on December 28, the City Finance Officer will neither validate nor invalidate petitions to Change Municipal Government.

On the advice of the Sturgis City Attorney, the Sturgis City Council will ask the City Attorney to file an action for a declaratory judgment from the South Dakota Board of Elections. This is an independent third party that will render an unbiased decision. This action will help clarify the rights of involved parties and will determine if the removal of a City Manager is considered a change in the form of government. The City Council will determine the appropriate next steps based on that decision.

The City Council unanimously approved a resolution on January 3, 2022, directing the mayor to submit a petition to the State Board of Elections (Election Board) "requesting a declaratory judgment as to the propriety of the question submitted on the question."^[2]

[¶7.] On January 3, 2022, Citizens applied for a writ of mandamus in circuit court seeking to compel the finance officer to certify that sufficient signatures were submitted on the petition. It also asked the circuit court to require the city council to schedule and carry out an election under SDCL 9-11-6 or 9-10-1. While similar to SDCL 9-11-6 in some respects, SDCL 9-10-1 permits a petition to hold an election on "the proposition of employing a city manager."^[3]

[¶8.] Also on January 3, 2022, the mayor requested a declaratory ruling from the Election Board on the question, "Is a city manager an employee or a form of municipal government within the meaning of SDCL § 9-11-6?" The Election Board requested further information from the mayor about how the petition fell within the jurisdiction of the Election Board. The mayor subsequently withdrew the petition for a declaratory ruling before the Election Board "[b]ecause the referendum sponsors filed an action for mandamus[.]"

[¶9.] In a January 12, 2022 letter, Bueno informed Citizens that she declined to certify the petition. The letter stated that she had requested an opinion from the city attorney, who advised her that a city manager was not a form of government and that employing a city manager was an administrative decision and, therefore, not subject to referendum.

[¶10.] The City filed a motion for summary judgment on the writ of mandamus action. Following a hearing, the circuit court issued a memorandum decision and order, noting that the petition sought to change the form of government from aldermanic with a city manager to aldermanic without a city manager. The circuit court cited SDCL 9-2-3^[4] and held that the petition sought to do away with the city manager position, but such a change was not in the City's form of government. The circuit court concluded that the petition improperly sought to achieve an outcome that was not possible through a petition for a change in the form of municipal government. The circuit court granted summary judgment in favor of the City and dismissed the case. The grant of summary judgment effectively denied the application for a writ of mandamus.

[¶11.] Citizens now appeal, asking this Court to issue "a writ of mandamus ordering Bueno to certify the Petition, present the Petition to the Sturgis Council, and for the Sturgis Council to schedule an election." Alternatively, they assert that the circuit court erred in denying their motion to limit the scope of the City's arguments and that it erred in granting summary judgment.

Standard of Review

[¶12.] The circuit court granted summary judgment in favor of the City.^[5] "We review a circuit court's entry of summary judgment under the de novo standard of review." Ries v. JM Custom Homes, LLC, 2022 S.D. 52, ¶ 14, 980 N.W.2d 217, 222 (quoting Wyman v Bruckner, 2018 S.D. 17, ¶ 9, 908 N.W.2d 170, 174). "We will affirm a circuit court's 'grant of a motion for summary judgment when no genuine issues of material fact exist, and the legal questions have been correctly decided.'" Id. (quoting Harvieux v. Progressive N. Ins. Co., 2018 S.D. 52, ¶ 9, 915 N.W.2d 697, 700). Underlying questions of statutory interpretation and application in the mandamus action "are questions of law that we review de novo." Krsnak v. S.D. Dep't of Env't and Nat. Res., 2012 S.D. 89, ¶ 8, 824 N.W.2d 429, 433 (quoting State v. Goulding, 2011 S.D. 25, ¶ 5, 799 N.W.2d 412, 414).

Whether the circuit court correctly applied the laws related to mandamus when it granted summary judgment.

[¶13.] "A writ of mandamus is an extraordinary remedy that will issue only when the duty to...