Has the Bosworth precedent kept a municipal referendum off the ballot in Watertown?
Glacial Lakes Energy in Watertown wants to build a four-track rail loop that will allow them to load more train cars without backing trains up and blocking traffic on Highway 212 to the north.
According to data presented at the March 7 meeting of the Watertown City Council, since the construction of the South Bypass (from Highway 212 at Sharp Auto and the Prairie Stop southeast to Broadway, Glacial Lakes, and Highway 81) in 2012, daily traffic along that 2,500-foot stretch of South Broadway has decreased 44%, from 2,033 vehicles to 1,139.
The City Council thought vacating South Broadway was a great idea and approved it March 7. Jon Dagel, the owner of the Little River City c-store at South Broadway and 212, former city alderman Mike Davis, and others* did not. Obviously not wanting to lose business from Glacial Lakes workers taking Broadway to and from work, Dagel, Davis, and friends took out a petition and collected 1,004 signatures to put the road vacation to a vote. City Finance Officer Rochelle Ebbers validated the necessary 703 signatures last week, and Watertown’s off to the polls—
—Not so fast, said Glacial Lakes Energy. CEO Jim Seurer came to Monday’s council meeting and demanded that the city reject the petition based on irregularities uncovered in its circulation. Specifically, Seurer alleged that circulators did not witness the signatures on their sheets. Mayor Steve Thorson said law enforcement officers had confirmed that allegation, and the council declared the petition invalid, thus forestalling any referendum vote.
The Watertown City Council has taken a very different approach to this petition challenge from Secretary of State Jason Gant’s approach to my challenge of Annette Bosworth’s nominating petition in 2014. I made the same argument that Seurer did: circulators did not witness signatures, therefore those signatures and all signatures gathered by those circulators were invalid. Secretary Gant rejected my challenge, saying his office had no authority to go beyond a facial review of the petition and that a challenge based on the evidence I presented had to be resolved in court.
If Secretary Gant had taken the initiative shown by the Watertown City Council, Annette Bosworth would never have made the 2014 primary ballot. If Secretary Krebs adopts the Watertown stance with respect to my pending challenge of Lisa Furlong’s petition, the fake 18% rate cap won’t make the ballot.
The Watertown City Council is right: oaths matter. We have a duty to protect the integrity of petitions and elections. As much as I love initiative and referendum, if people don’t do petitions right, their measures should not make the ballot.
However, there is a statutory argument that the city, just like Secretary Gant, really does lack the authority to reject the South Broadway petition. Rules 05:02:08:00 and 05:02:08:00.01 lays out the requirements for accepting petitions and counting signatures. None of them specify that the office accepting petitions should investigate circulators for violating their circulators oath. That was Gant’s argument in 2014. More importantly, SDCL 9-20-4 appears to say that once the city finance officer has validated a referendum petition, “The governing body shall submit the petition to a vote of the voters….” Shall submit.
The Watertown City Council’s action this week runs counter to Secretary Gant’s (in)action on the Bosworth petition violations in 2014. The Bosworth trial (and her hubby Chad Haber’s plea bargain) established that muffing the circulator’s oath can result in criminal charges. The press surrounding Bosworth’s sensational trial may have motivated Seurer and the council to take the position they have, but the Bosworth trial did not provide clear legal precedent for rejecting a petition based on felonious circulator activity. If Dagel, Davis, and their fellow circulators go to court, Watertown’s rejection of this road referendum could provide such a precedent.
Correction 12:08 CDT: A Watertown neighbor corrects me: Jon Dagel owns Little River City; Mike Davis is a former city alderman. I originally misread KXLG’s report and listed Davis as the c-store owner.
Mayhaps the fact that the strip bar is on that route is pertinent. Hmmmmm?
I like it when the courts weigh in on these fuzzy questions of law to provide clarity for citizens in the future. I hope this question can be cleared up in a expeditious manner. A question like this coming up this time of year could throw this construction project back a year. If Glacial Lakes came to the city council with this project just recently and the project gets delayed a year until legal problems are hashed out they are partly to blame for their predicament. They could offer to build two auto overpasses on South Broadway, increasing their costs but keeping the project on schedule.
Great comment, Mr. Nemec. It’s becoming so very common that people and groups attempt to hijack the “Power of the People” for selfish, self-serving ends. Take for example the Aberdeen Novstrups, who employ many many young people during the summer. They tried to float a law in Pierre to be able to pay these kids less than the minimum wage under the pretense that it would “help” these hard working boys and girls. Cutting your payroll would certainly help someone but it’s fuzzy if it’s the that would kids would benefit.
If the owner of the C-store has property that abuts Broadway, and didn’t sign the petition to vacate Broadway, the council decision to vacate was invalid to begin with.
Read SDCL 9-45-7 “…..No street, alley, or public ground, or part thereof, shall be vacated by the governing body except upon the petition and consent in writing of all of the owners of the property adjoining the part of the street, alley, or public ground to be vacated. …..”
Does everyone see that little word ALL in that statutory language?
If CAH’s map is correct then NO, Little River C Store does NOT abut the portion of the road to be vacated. I judging from the narrative the map is probably correct.
as mentioned the admin rules cited could be interpreted by SD Supreme Ct. precedent. look at the SDCL, if any, to see similar statutory cases of interpretation. I don’t know if digital versions are always publically accurate.
Overpasses! Heck yeah! We could use a couple more in Aberdeen… over Sixth Avenue for bikes and pedestrians. :-)
Richard, Planning is correct: the vacation doesn’t start until south of the bridge. I don’t know my lot lines for sure, but the c-store is north of the bridge.
Hey, vacate that road, and we’ll have a bridge to nowhere!
To help with this discussion:
http://www.1stdistrict.org/Flex/CodingtonMapNet/
Wow, nice map, Planning! If I’m reading the map right, the parcel making up approximately the SW third of the rail loop has not been annexed into Watertown city limits yet.
May I point out a couple things?
#1. The matter is being investigated by the police, as it is a misdemeanor.
#2. The petition needed 699 signatures to take it to a vote. GLE was more than willing to take it to a vote and was getting ready for a campaign. It was the tips of other citizens that led GLE to seek legal counsel that then started the police investigation. The police were the ones to show that enough of the signatures were not valid due to a criminal offense for there not to be enough to force a vote.
#3. The section of Broadway to be closed is 2-3 blocks farther south than Little River City. They still have traffic on Broadway past their store to Hesco. They are also right on Highway 212, which gets blocked by rail cars for long periods of time several times a month (I believe the estimate was about 30 by the BNSF). This is because GLE does not have its own rail loop and must ship individual cars at a time, which take a long time and a lot of back and forth to connect to a train (45 minutes to an hour on the average that you are stuck behind a train).
#4. GLE has offered to repair the bridge on Broadway south of Little River City so that Hesco can get their trucks through, because that will now be their only route out. GLE is paying for those repairs, and that will increase the Hesco traffic that goes past Little River City on Broadway.
#5. If GLE gets the rail loop built, BNSF believes that the traffic crossing 212 will drop to 6-7 times a month, and most times in the middle of the night. If that is the case, then Little River City should actually see more traffic on the 212 side, which they already see a lot of.
Little River City is a great business and has every right to not want this to go through. They have every right to petition the City of Watertown not to allow it, however, if the valid signatures on the petition are not enough, and in fact have come through as part of a misdemeanor offense, then that petition would be null and void.
My gut is that someone, in their fury to get signatures, did not pay attention to the laws governing petitions and inadvertently caused their own failure.
I honestly don’t believe that there has been any intention on either side to be uncivil or break the law. I think that there was probably a miscommunication or misunderstanding in how to gather signatures and whose they could gather. Many of the ones thrown out originally were because they were not people that lived within the city limits and therefore did not have a vote. That means 30% of the signatures were from out of town. Based on that alone, I have to think that was an error or a misunderstanding. It wouldn’t make sense for them to gather signatures from people out of town.
I don’t know how it applies to any other case, I just believe that everything was done through due process in Watertown. I might be wrong, but it doesn’t appear to be the case.
I also hope that Little River City doesn’t see any measurable drop in their business, and I’m thinking if they do, it won’t be much. By the way, GLE has also offered to help Little River City get funding for blender pumps and do a years’ worth of ethanol promotions for them. Whether they accept that or not is yet to be seen.
Thanks for those details! I still see a difference here between the Watertown approach and the state’s approach to the Bosworth petition in 2014. The police have gathered evidence, but the petition violation hasn’t been established in court. Does the city have the authority to reject the petition based on this evidence without a court finding?
I may be wrong, but I believe that, if law enforcement can prove or has confessions on enough signatures (at least 5) as part of the evidence (regardless of the rest of the investigation – they may even be ones that got missed accidentally), yes, they can because that would lower the amount to below what was required for it to go to a vote. If there are less than 699 valid votes, the petition is thrown out. Law enforcement found solid evidence on enough signatures to bring that below 699, so the petition did not get enough signatures. They threw it out on the basis of not enough validated signatures, it wasn’t based the whole of the petition being tainted.
For instance, if, during a criminal investigation of a landlord, in evidence they find a utilities account that was clearly past due, everyone that needed to was notified of it, and would be shut off, the utilities can shut off service without waiting for that lawsuit to go through. I think that’s what happened here. There were at least 5 signatures more that were found out not to be valid and therefore the 699 threshold was not met and the petition was thrown out. The council had already unanimously approved the closure, so without a valid petition, that vote stands.
I could be wrong, but I believe that was the case. Like I said, I don’t know how this compares with any other case, but I think that is what happened here.
Also, to address the comment about the city limits, that process started months ago and involves re-zoning. Part of it is actually in the city limits. GLE is in the city limits, uses city utilities, and pays city taxes. I don’t know that process, but I do know that it was approved, there are just a lot of things that have to be done. Once it has been done, since GLE owns that land, they will be required to pay all city taxes, etc., on that land as well. There is a process for that whole thing. GLE already owns the land, so it would be in the city’s monetary best interest to re-zone, so I think it’s just a matter of due process.
The city is also asking the state to drop the speed limit on 81 to 35mph much farther south so that intersection between 20 and 81 can be a little bit safer until the roundabout goes in. That project is set to happen in 2 years (I think), and when they do that, they’ll have to drop it down for that anyway, but even though that’s already in the plan, there is a process that they are going through to get the DOT to drop the speed limit on that road earlier than planned. That will also take time to work its way through, even though it’s technically already planned.
The entire project is quite complicated. It involves the city, the state, and BNSF in addition to GLE. So far, everything else is proceeding as it should. How it all works together and the timelines involved, I honestly don’t know.