ELR Citation: ELR 21285
No(s). 92-1898SD (8th Cir. Jun 1, 1993)

The court holds that a South Dakota court's declaratory ruling on plaintiff's constitutional challenge to a public vote requiring legislative approval for large-scale solid waste disposal facilities does not collaterally estop plaintiff's constitutional challenge to a public vote disapproving a state statute authorizing the siting, construction, and operation of plaintiff's solid waste disposal facility. The state court held that the first vote did not violate the Commerce or Equal Protection Clauses of the U.S. Constitution, but did violate the Due Process Clause of the U.S. and South Dakota Constitutions to the extent that it required an immediate suspension, without notice or an opportunity to comment, of the plaintiff's right to operate the facility under a one-year permit. The court first holds that res judicata does not apply, because in the state court proceeding the plaintiff sought a declaration that the first vote was unconstitutional. In this action, the plaintiff seeks a declaration that the second vote is unconstitutional. The court holds that collateral estoppel does not preclude the plaintiff's action, because the impact of the second vote has never been adjudicated. Also, the state court's decision was predicated on its holding that the protected interest the plaintiff held when the first vote became law was limited to a one-year permit. By the time of the second vote, however, the plaintiff had a five-year permit renewal and the state legislature had passed a law approving the siting, construction, and operation of the plaintiff's facility.

Counsel for Appellant
Marcy G. Glenn
Holland & Hart
555 17th St., Denver CO 80201
(303) 295-8000

Counsel for Appellees
Diane M. Best, Ass't Attorney General
Attorney General's Office
500 E. Capitol St., Pierre SD 57501
(605) 773-3215