Section 2. Notwithstanding any other law, the following acts are not unlawful under law of any subdivision or be a basis for seizure or forfeiture of assets under South Dakota law
- Possessing, consuming, growing, using, processing, purchasing, or transporting an amount of cannabis that does not exceed the possession limit;
- Transferring one ounce or less of cannabis and up to six immature cannabis plants to a person who is twenty one years of age or older without remuneration;
- Controlling property where actions described by this Act occur; and
- Assisting any other person who is twenty one years of age or older in any of the acts described in this Act [Recreational-marijuana initiative, Section 2, received by Secretary of State 2017.03.27].
The opening clause is the problem: “the following acts are not unlawful under law of any subdivision” says political subdivisions of the state (cities, counties, school boards…) can’t outlaw pot but appears to leave in place state laws banning pot. I could hazard a mathematical argument that since every set is a subset of itself, the state is a subdivision of itself. However, South Dakota Codified Law’s frequent references to “the state or its political subdivisions” make clear that “subdivisions” are really divisions of government under the state, not the state itself (roughly, in mathematical parlance, proper subsets).
The original draft of the recreational-marijuana initiative phrased the sponsors’ overarching intent more clearly:
Notwithstanding any other provision of law, except as otherwise provided in this chapter, the following acts are not unlawful and shall not be a criminal or civil offense under South Dakota law or the law of any political subdivision of South Dakota or be a basis for seizure or forfeiture of assets under South Dakota law for persons 21 years of age or older… [Recreational-marijuana initiative, Section 3, received by Secretary of State 2017.01.09].
The LRC recommended this revision to that provision [overstrike = recommended deletion; underline = recommended addition]:
Notwithstanding any other
provision oflaw, except as otherwise provided in this chapter,the following acts are not unlawful and shall not be a criminal or civil offenseunder South Dakotathe law of the state or the law ofany politicalsubdivision of South Dakota, or be a basis for seizure or forfeiture of assets under South Dakota law for persons 21 years of age or older… [LRC revisions, 2017.01.09].
In minor news, notice that the bad grammar—”…the following acts are not unlawful… or be a basis…”— of the revised initiative arises from following LRC’s recommended revision exactly.
But in major news, the accidental limitation of the initiative to local laws comes from the crucial omission of the change I highlight in red. LRC recommended rewording “under South Dakota law or the law of any political subdivision of South Dakota” to “under the law of the state or any subdivision.” Those phrases mean the same thing. The ballot question sponsors lost that equal meaning when they struck “South Dakota” but did not add “of the state.” The current, circulating language thus loses an important compound prepositional phrase and says only “under law of any subdivision.”
Interestingly, the sponsors kept the “under South Dakota law” that the LRC struck at the end of the seizure-and-forfeiture phrase. However, as written, that phrase appears to apply only to the nearest predicate—”be a basis for seizure or forfeiture of assets”—and cannot reach back beyond the “or” to apply to the preceding predicate—”are not unlawful….”
Petition sponsor Melissa Mentele of New Approach South Dakota tells Dana Ferguson that she’s not concerned about this “typo” and contends that “it’s one person’s perception of grammar versus another’s.” Those are two separate arguments. New Approach would lose in court on the grammar issue: the words as written in this section appear to leave most state laws against marijuana possession and use in place. To win its argument, New Approach should focus on the “typo” argument by showing how the flawed existing language arose from revisions, responding to LRC recommendations, that garbled the clear intent of the original draft and other 34 sections of this initiative, which clearly envision cannabis being grown, labeled, sold, taxed, and used as a legal product throughout the state of South Dakota.