WILBUR, Circuit Judge.
[¶ 1.] Frawley Ranches, Inc. (Frawley) appeals from a circuit court order denying intervention and a judgment granting a writ of mandamus. We affirm.
[¶ 2.] In 1998, Frawley began the process of developing a planned unit development (PUD) in Eastern Lawrence County, South Dakota. At that time, the 1,000 acres required for this development were zoned A-1 Agricultural under Lawrence County's Zoning Ordinance. For that reason, Frawley took the appropriate steps to move this project forward.
[¶ 4.] On October 12, 1999, the county commission held a meeting to discuss Frawley's proposal. At the meeting Frawley made a presentation and the public again was allowed to comment on Frawley's plan. After this discussion, the county commission approved the rezoning requests. The CUP and PUD overlay were also approved contingent upon Lawrence County entering into a development agreement with Frawley. However, the county commission denied the PUD development for the suburban residential zoning district.
[¶ 5.] The county commission's approval brought about a referendum petition challenging the ordinances and resolutions. The referendum petition, as drafted and circulated, stated that the qualified voters of Lawrence County rejected pursuant to law:
After the required number
[¶ 6.] The county commission refused to schedule a vote. The commission contended the petitions were not in proper form.
[¶ 7.] On November 23, 1999, the circuit court issued an order to show cause, requiring the auditor and the county commission to explain why the writ of mandamus should not be issued. The circuit court scheduled a hearing date of December 13, 1999 for the order to show cause hearing. On November 29, 1999, Frawley filed a motion to intervene pursuant to SDCL 15-6-24(c). The date for argument was set for December 13, 1999. On December 7, 1999, Frawley submitted a brief
[¶ 8.] On December 13, 1999, a hearing was held before the circuit court. The court first heard arguments regarding the motion to intervene. Petitioners relied solely upon their written statement while Frawley argued orally before the circuit court. After considering the petitioner's written statement and Frawley's oral argument, the circuit court denied Frawley's motion to intervene.
[¶ 9.] The circuit court denied Frawley's motion to intervene because the writ of mandamus that Petitioners sought did not seek relief from Frawley nor could the circuit court grant any type of relief directly to Frawley. The circuit court recognized that Frawley had an interest in the outcome of the vote, but had no interest in the validity of the petition. The circuit court did rule, however, that it would consider Frawley as amicus curiae. The circuit court subsequently allowed Frawley to argue on the merits at the hearing on the writ of mandamus.
[¶ 10.] The issuance of the writ of mandamus was based on the following rationale. First, the circuit court held that this issue was subject to the referendum process under the statutes of South Dakota. Second, the circuit court stated that in order for the petition to be held invalid, the burden was on the county commission to make a showing of confusion, corruption, or fraud, and none was presented. The circuit court stated any confusion that might exist could be cleared up by a properly prepared ballot. Third, the form of the petition substantially complied with the statutory requirements that govern the validity of the petition. For those reasons, the writ of mandamus was issued. The county commission did not appeal from this decision.
[¶ 11.] After the writ of mandamus was issued, the county commission scheduled and administered a vote of the Lawrence County electorate. The results of that election rejected the Frawley development in its entirety, including the rezoning requests. Frawley appeals, raising the following issues:
STANDARD OF REVIEW
[¶ 12.] In determining if a circuit court erred in denying a motion to intervene, "[t]his Court's standard of review is whether the trial court abused its discretion in denying intervention as of right." Weimer v. Ypparila, 504 N.W.2d 333, 335 (S.D.1993).
[¶ 13.] To intervene as a matter of right, Frawley must satisfy SDCL 15-6-24(a)(2), which states:
(emphasis added). Frawley argues that it had a direct interest in the transaction and the failure to allow it to intervene impaired its ability to protect that interest. Frawley also argues that the failure of the county commission to appeal was prima facie evidence that the existing parties did not adequately represent Frawley's interests.
[¶ 14.] This Court has long held that "[t]he purpose of intervention is to obviate delay and multiplicity of suits by creating an opportunity to persons directly interested in the subject matter to join in an action or proceeding already instituted." Jackson v. Board of County Commissioners Etc., 76 S.D. 495, 81 N.W.2d 686, 690 (S.D.1957); See also Steiner v. County of Marshall, 1997 SD 109, ¶ 40, 568 N.W.2d 627, 635 (Miller, C.J.concurring) (emphasis added). The circuit court denied the motion to intervene because Petitioners sought no relief from Frawley, nor could the court grant any relief to Frawley. The holding that Frawley had no direct interest in the writ of mandamus action is based upon a distinction between the validity of the petition (and therefore the issuance of the writ) and the resulting vote of the electorate.
[¶ 15.] The question of whether the circuit court should have allowed Frawley to intervene is a close one. Frawley clearly had an interest in the writ of mandamus proceeding because of the potential impact of a referendum election on its development. The circuit court was technically correct that it could grant no direct relief to Frawley. However, Frawley was effectively allowed to intervene by arguing the merits of the writ of mandamus issue at the circuit and appellate level. (See Issue 2, infra) The error, if any, in not allowing Frawley's request for intervention has been rendered moot as Frawley was allowed "de facto" intervention. Frawley has suffered no harm as a result of the circuit court's decision on the intervention issue.
2. Writ of Mandamus
[¶ 16.] The nature of a writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear:
Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242 (citations omitted) (emphasis added). SDCL 21-29-1 provides the circuit court authority to issue this writ:
A court may issue such a writ "where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." SDCL 21-29-2.
[¶ 17.] In the case now before us, Petitioners sought a writ of mandamus to compel the auditor and county commission to perform their statutory duties including the following:
[¶ 18.] The county commission and Frawley did not dispute that these statutes create a legal duty to act. The dispute centered on the form of the petition. The county commission and Frawley argue that if the form of the petition does not meet the requirements set forth by statute, then no duty arises under either SDCL 7-18A-16 or 7-18A-15.1. With this in mind, and since the issue of a legal duty to act is not in dispute, this Court need only determine the petition's validity. This Court is cognizant that SDCL 2-1-11 requires that initiative and referendum petitions "shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality." For this reason "[w]e begin with a presumption that petitions which are circulated, signed, and filed are valid." Larson v. Hazeltine, 1996 SD 100, ¶ 19, 552 N.W.2d 830, 835 (citations omitted).
[¶ 19.] This Court has previously held that the requirements governing a referendum petition are "substantial in character and not merely requirements of form." Bjornson v. City of Aberdeen, 296 N.W.2d 896, 899 (S.D.1980) (citing Corbly v. City of Colton, 278 N.W.2d 459, 461 (S.D.1979)); See also O'Brien v. Pyle, 51 S.D. 385, 214 N.W. 623 (1927) (emphasis
Larson, 1996 SD 100, ¶ 19, 552 N.W.2d at 835 (quoting Rans v. State, 390 N.W.2d 64, 66 (S.D.1986)). To determine whether the petition in this case is in substantial compliance this Court must examine the requirements that are expressly enumerated in the statutes that govern the petition's validity.
[¶ 20.] The form of a referendum petition is set forth in SDCL ch. 2-1 and SDAR ch. 5:02:08. More specifically, SDCL 7-18A-17 and SDAR 5:02:08.19 govern the form of the petition. SDCL 7-18A-17 provides:
SDAR 5:02:08:19 provides:
[¶ 21.] SDAR 5:02:08:19 states that "[t]he county referendum petition shall be in the following form" and then provides the form. The petition in this case was copied directly from this rule. SDCL 7-18A-17 states that the "title of such ordinance or the subject of such resolution, and the date of its passage ... shall be set out at length." The petition provides:
The petition clearly sets forth the title, subject, and the date of passage of the ordinances and resolutions at issue. Those are the express conditions set forth in the governing statutes. In addition, the minutes
[¶ 22.] Frawley argues that the petition fails to substantially comply with statute for several reasons. First, the petition incorrectly refers to the PUD and CUP resolutions as ordinances. Second, the petition fails to set forth the titles of the ordinances to be referred. Third, the petition violates the single subject rule by failing to set forth each ordinance in a separate petition. Fourth, the attachment of the actual minutes from the October 12, 1999 county commission meeting is extraneous, beyond the four corners of the document. Further, there is no verification that each petition contained an attachment. Fifth, Frawley argues that even if the attachment of the minutes were proper, then the material preceding the minutes of the meeting and subsequent to it on the attachment is confusing.
[¶ 23.] SDCL 2-1-11 creates a presumption that petitions, which are circulated, signed and filed, are valid. This statute also mandates a liberal construction and emphasizes that the real intention of the voters should not be defeated by a mere technicality. Id. Regarding the first, second, and fifth arguments set forth by Frawley, this Court believes that if it were to void the petition for these reasons it would be allowing a "mere technicality" to "defeat the real intent of the petitioners." Corbly, 278 N.W.2d at 461. The third and fourth arguments, however, warrant closer scrutiny.
[¶ 24.] The "single subject" rule "minimize[s] the risk of voter confusion and deception" by requiring that a petition has only one subject. Amador Val. Joint Union H. Sch. Dist., Etc., 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281, 1291 (1978). This rule also has its foundation in both the South Dakota Constitution and statutory law. See SDCL 7-18A-3 (stating an ordinance shall embrace only one subject, which shall be expressed in its title); S.D. Const. art. III, § 21 (stating that no law shall embrace more than one subject, which shall be expressed in its title). The practical application of this rule requires a standard to determine what constitutes a "single subject." Frawley argues that the petition violated the single subject rule because it contained six separate ordinances, a CUP, and a PUD. It is not the number of items that is important; rather, it is the closeness of the relationship between the items on the petition.
[¶ 25.] Other courts have set forth a standard to make this determination:
Amador, 149 Cal.Rptr. 239, 583 P.2d at 1290 (emphasis original; citations omitted); See also Legislature of the State of Cal. v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309, 1320-21 (1991) (stating that as long as the ordinances listed in the petition "are reasonably related to a common theme or purpose" this requirement is met). This Court agrees with the rationale
[¶ 26.] The referendum petition states in its title that it pertains to "[t]he ordinances approving Frawley Ranches, Inc., requests for change of zoning." Directly following is a list of the ordinances listed separately. Despite the separate listing, it is evident from a reading of the petition that the separate listings all refer to the Frawley development. This Court will not apply the "reasonably germane" test in such a narrow or technical manner as to avoid the obvious plain meaning of this petition. Id. All ordinances separately listed refer to one thing, the Frawley development.
[¶ 27.] This Court is also aware of the circumstances and publicity surrounding the circulation and signing of the petition in the case now before us. As stated by the Court in Amador:
Amador, 149 Cal.Rptr. 239, 583 P.2d at 1291 (emphasis added). Here, the circuit court found no evidence of confusion, corruption, or fraud. Further, the court stated that a properly prepared ballot could clear up any confusion that might exist. The record in this case and the publicity that surrounded this petition supports that finding. Consequently, the petition satisfies the "reasonably germane" test and is not violative of the single subject rule.
[¶ 28.] Finally, Frawley urges us to find that attaching the county commission minutes to the petition causes its invalidity. The petition states that "[t]he above-named ordinances are set forth in full in the attached minutes of the Lawrence County Commissioners Meeting dated October 12, 1999." Frawley argues that because the verification does not affirmatively set forth that these minutes were attached to each petition circulated, its inclusion voids the validity of the petition. In addition, Frawley contends that the inclusion of the minutes cannot cure that which is lacking in the petition ... "notice to the electorate of the specific legislative act they are called upon to approve or repeal."
[¶ 29.] Since we have previously concluded the petition clearly sets forth the title, subject and date of passage of the ordinances and resolutions Petitioners sought to refer, there is no need to examine if the attachment seeks to cure that which is lacking in the petition. There is nothing lacking in the petition with regard to identification for the electorate of the specific legislative act they are called upon to approve or repeal.
[¶ 30.] The petition itself, without the attached minutes sufficiently establishes the title or purpose of the ordinances and resolutions and the date of passage as required by SDCL 7-18A-17. The circuit court specifically found no evidence of confusion, corruption or fraud. Applying the statutory presumption that petitions are valid and should be liberally construed, this Court finds the attachment does not affect the validity of the petition. The petition substantially complies with statutory requirements.
[¶ 31.] Since the writ of mandamus was properly issued, and Frawley was granted
[¶ 32.] We affirm the circuit court's order and judgment.
[¶ 33.] MILLER, Chief Justice, and KONENKAMP and GILBERTSON, Justices, concur.
[¶ 34.] SABERS, Justice, concurs specially.
[¶ 35.] WILBUR, Circuit Judge, for AMUNDSON, Justice, disqualified.
SABERS, Justice (concurring specially).
[¶ 36.] I write specially to point out that the trial court clearly erred in denying Frawley the right to intervene under SDCL 15-6-24(a)(2). Our intervention statute provides in relevant part:
(emphasis added). Frawley's application to intervene was timely, it related to the property and the transaction, which interest was not adequately represented by the County, and the disposition would impair or impede his ability to protect his interest. On every count or factor, we are faced with the same rationale for allowing Frawley to intervene. Neither the parties nor the trial court really dispute this. Therefore, the trial court was not "technically correct" but incorrect.
[¶ 37.] Nevertheless, the trial court acted contrary to its own ruling and allowed Frawley to argue on the merits as if intervention was permitted. In fact, so did we. Therefore, the incorrect ruling was ignored by the trial court and Frawley can complain of no prejudice. "No harm, no foul." I concur specially to keep the law on this point correct, not incorrect.