Lawyers argue Buffalo Chip case to Supreme Court

The South Dakota Supreme Court Monday heard arguments about the Buffalo Chip and if it may be incorporated as its own municipality. Pioneer file photo

VERMILLION — Sentence structure matters.

That’s the point lawyers for the town of Buffalo Chip made before the South Dakota Supreme Court Monday.

At the heart of the sentence structure debate in the Buffalo Chip case is the word “or.”

Jack Hieb, attorney for Buffalo Chip, said that simply put, “or” means “or” and not “and.”

At the time of the Buffalo Chip incorporation vote in 2015, state law said a municipality may not be incorporated unless it contained at least 100 legal residents “or” at least 30 registered voters. The incorporated area of Buffalo Chip did have the 30 registered voters, but not 100 residents.

That law (SDCL 9-3-1) since has been changed to read: “A municipality may not be incorporated unless it contains at least one hundred legal residents ‘and’ at least forty-five registered voters.” 

“The first rule the court has said over and over again is that ‘or’ does not mean ‘and,’ except in rare circumstances,” Hieb told the justices Monday.

In his statement of the case filed with the Supreme Court, Heib gave the example of a non-profit hosting a benefit concert which required concert goers to bring non-perishable food items for admission. In an advertisement, they state: “No person may be admitted to the concert if they fail to bring two cans of food or a quart of fruit juice.” Hieb said anyone reading this sentence would surely understand that they either need to bring two cans of food or a quart of fruit juice if they want to be admitted to the concert. He said SDCL 9-3-1 operates the same way. 

But in his ruling in February, Fourth Circuit Judge Gordon Swanson ruled that the requirement for a municipal incorporation is both 100 residents and 30 registered voters.

The appeal of that ruling is what brought the case to the State Supreme Court Monday.

James Moore of Sioux Falls, representing the state of South Dakota, acting through the attorney general’s office, said only lawyers could read the statute and not understand what it means.

He said you only need look at rules of standard English which say that when you have a negative followed by the word “or,” then “or” means not the first item listed or the second item listed.

Moore offered up this example of “or” meaning “and” – “No food or drink in the courtroom.”

Also at question Monday was whether the circuit court erred by allowing the state to bring an action to vacate Buffalo Chip’s Articles of Incorporation and annul Buffalo Chip’s existence as a municipality.

After Buffalo Chip’s 43 registered voters approved the incorporation in 2015, the Secretary of State filed the incorporation papers.

But the city of Sturgis and local landowners challenged the process. An appeal of that case went on to the South Dakota Supreme Court which ruled that it’s up to the state to challenge incorporation.

And so it did. Then, in February, Fourth Circuit judge Gordon Swanson ruled for the state and nullified Buffalo Chip’s status as a municipality.

Heib said it is a true statement that what the state giveth, the state can taketh away, but the state Legislature has expressly prohibited the executive branch from coming in and taking away a town’s municipality status. 

“I believe the Legislature is the body who decides whether a drastic remedy, which is what this court has called the revocation of a corporate charter like this, should be allowed,” Hieb said. 

The state knew the incorporation was going on because Buffalo Chip was allowed to file its documents of incorporation with the state.

“The Secretary of State got our census, got our articles of incorporation and filed them,” Hieb said. “She didn’t send them back. She didn’t refuse to file them.” 

Each side was given 20 minutes to present their case and answer justices’ questions. Heib had an additional 10 minutes to present a rebuttal of Moore’s testimony. 

The Supreme Court case was heard at the University of South Dakota in Vermillion. A ruling will be made at a later time.


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