Smoking ban foes plan appeal

Legal challenge on petition signatures could affect other notarized documents


The coalition opposing a public smoking ban in South Dakota plans to appeal a ruling by the secretary of state that would bar them from putting the issue before voters.

And as it turns out, one potential issue for litigation could have wide-ranging ramifications on all sorts of notarized documents.

After scrutinizing nearly 10,000 signatures on petitions to put the cigarettes online buy ban adopted last winter by the Legislature on the ballot in November 2010, Secretary of State Chris Nelson said Thursday that 8,845 of the signatures were invalid. That means petitioners fell 221 short of the threshold needed to give voters the opportunity to overturn the smoking ban.

Nelson discounted about 2,500 signatures because of errors made by notaries. In many cases, those notaries failed to put the correct expiration date of their commissions on petitions they notarized, said Larry Mann, a spokesman for the coalition. The group includes Deadwood gaming, the Music and Vending Association, the Licensed Beverage Dealers of South Dakota and video lottery establishments.

Mann said the coalition, which has identified lawyer Sara Frankenstein of Rapid City to lead the legal effort, will ask a judge to rule that such notary errors should not invalidate otherwise correct signatures.

If such a ruling is not forthcoming, it could have wide-ranging implications. Notaries certify all manner of civil documents, affidavits and depositions. If the error rate Nelson found in themarlboro cigarettes sale ban petitions is similar to that of other notarized documents, it could bring them into question as well.

“The question in front of a judge is whether or not the notaries came close enough,” South Dakota Attorney General Larry Long said. “It’s the doctrine of substantial compliance. It’s one of many issues that will get slogged through if this goes to court.

“The manner in which the court deals with that issue may shed some light” on whether all kinds of notarized transactions are subsequently threatened, he said.

“The prudent thing is to wait to see what the court says,” Long added.


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