Language Dispute in Recreational Marijuana Initiative Arises from Revision Error

And hey, remind me, why might the recreational marijuana amendment not legalize marijuana in South Dakota? Let’s review Section 2 of the initiative:

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

  1. Possessing, consuming, growing, using, processing, purchasing, or transporting an amount of cannabis that does not exceed the possession limit;
  2. 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;
  3. Controlling property where actions described by this Act occur; and
  4. 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 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 the law of the state 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… [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.

15 Responses to Language Dispute in Recreational Marijuana Initiative Arises from Revision Error

  1. bearcreekbat

    It might have helped if the initiative specifically repealed SDCL 22-42-6 and 7. There may be additional statutes that would have to be repealed or amended, but these two provisions seem to be what makes marijuana illegal in SD.

  2. Porter Lansing

    Not to stray from the topic of language within this proposal, if Cory writes a post about the absolutism of this initiative’s parameters, I have comments and examples from the Colorado law (the template for marijuana legalization, nationwide).

  3. Bearcreekbat, yes, that would make sense. Gotta dig through SDCL 34-20B, too. That’s part of the problem with some initiatives: if we just borrow language from elsewhere, we have to rely on lots of notwithstandings to escape the clutter… but going through statute to find all the clutter for explicit repeal takes time and diligence and can create an notably longer ballot initiative, since we can’t just write, “Repeal SDCL 22-42-6” but have to write all the existing language with strikethroughs.

    Porter, does Colorado statute have language comparable to what you see here that would clarify the issue with our initiative?

  4. Porter Lansing

    It seems pretty cut and dry to write legislation to make marijuana (not just paraphernalia) legal. It’s been done by several states. The problem with this initiative is that it’s too darn German!! South Dakotans don’t realize it but that’s probably because you can’t see the forest because there’s too many trees in the way.
    People up there are more apt to tell others what to do and more apt to allow others to tell them what to do … without choices. It’s not that way in other states. I believe it’s because you have three big influences that are highly authoritarian, dictatorial and fundamental. Your German heritage, the Catholic church and born again evangelicals. Lots of rules and not any choices. People are just used to it and it’s a flawed way to legislate.
    Did you folks know that 71% of the counties in Colorado don’t have legal marijuana by choice? Your initiative has to allow counties and town councils to refuse the legalization. Forcing something this controversial down someone’s throat won’t float. Not giving choices is rarely popular and causes backlash. Re-write the initiative while there’s still time … if it’s a serious proposal and not just a hobby.

  5. Miranda Gohn

    Porter, I highly doubt Melissa will change this ballot initiative drive much. She is fully committed (Stubborn German?) to ride it the end whether it succeeds which I highly doubt or most likely gets voted down being heavily flawed with all kinds of empty promises.

  6. Porter Lansing

    Excuse me, please. One of my above statements is wrong. Marijuana is legal to possess everywhere in Colorado BUT 71% of the counties have chosen not to allow stores to sell it within the county. My county is one that’s chosen not to allow it. This provision should be written into SoDak’s initiative.
    Sorry … :)

  7. Drey Samuelson

    Porter–good advice, in my view. Giving counties the option whether to allow stores to sell it within their country makes very good sense–it’s a lot harder to argue with options than it is mandates. I don’t know anything about the other considerations–time, volunteers, how many signatures have already been gathered, etc., but all other things being equal, that seems like a wise choice to me.

  8. Porter Lansing

    I like it, Drey. Options over mandates. While rewriting, the newest question in the issue might as well be addressed. i.e. Since it’s illegal to grow pot outside, houses that have been used to grow personal medical marijuana are often damaged by excessive humidity. Should this be added to the list of items that must be revealed by realtors before a sale of the property? It’ll be debated next legislative cycle in CO.
    This makes the point for how necessary a nimble, bipartisan Congress is for progressive problem solving. SoDak’s one party monopoly must be mitigated and the logjam of listless legislators dispersed. Nothing’s being built.

  9. Porter Lansing

    @Miranda … I agree and as I’ve said many times. South Dakota needs legal pot as much as it needs a tea kettle made of chocolate. Marijuana is Colorado’s pot ‘o gold. We legalized it first. Our brand will be superior once it all shakes out and if anyone wants to smoke cannabis, come to Colorado and visit. LOL
    PS … as far as that Ol’ Sarge calling you names, he’s showing how much pain he’s suffering from. A real head case.
    ~Most people these days think that nasty names “naturally” hurt folks. Such erroneous thinking is causing huge amounts of unhappiness.
    The process of name-calling is typically based upon feeling not OK, and name-callers are trying to make themselves feel more powerful by using the process. If I call you a name and get you upset, then I temporarily feel more powerful because I had a powerful effect upon you. My self-esteem rises at your expense. I project my unhappiness on to you and you take it on if you allow yourself to be upset. If you do not get upset at my attempt, then I cannot dump my original unhappiness on you. Then I am left not only with my failure to successfully dump it on you but also with my original unhappiness to boot. Thus, if you’re successful at being unbothered by my words, then I wind up more unhappy; and I’ll probably quickly stop those words. This is a key element to understand, that name-callers will usually feel worse if you do not react to their name-calling. They will therefore be much quicker to stop such behavior than if you get visibly upset.

  10. Miranda Gohn


    I shared with Melissa that I did quite a bit of work on Marijuana legalization in Minnesota talking to legislators, going to the Capital during session and a few are now running for Governor and numerous professionals. If it is going to happen then present it in a way Minnesotans that is up front, honest, covering as many bases as possible to reduce risk and buyers remorse and use it as an opportunity to fund something that is badly needed. All of us came to an agreement thought it was realistic and reasonable. When I had the exchange with Melissa letting her know she could of approached this from an entirely different way she quickly dismissed it. That’s when I knew she was going to ride this come hell or high water till the end. If it is someone else getting credit I could care less but it was collaborative and certainly not just me. Seeds were planted. It would be up to the voters anyways but it would go much further having an honest discussion up front than give them all kinds of baloney and later find out they were conned.

    Anyways! Nothing will happen in Minnesota for at least two years with MNGOP holding a majority in both houses and the Senate by just one. It will not even get a hearing. Governor Dayton with his term up in 2018 is totally against it.

  11. Miranda Gohn

    Porter, You most likely have some good things to bring to the table in tweaking a ballot initiative based off of the negatives issues that have occurred in Colorado but again Melissa has one sole focus pass or fail like a train heading train heading towards a rickety old trestle ready to collapse. She will not deviate at all from where she is going even after being called out on reckless and irresponsible advice for our most vulnerable populations that would draw sharp criticism from mental health professionals. Even the mental health professionals I visited with Doctorates in Psychology that are actually FOR legalization and have all kinds of data from Colorado would completely disagree with her.

  12. Porter Lansing

    Good pun, MG. “Seeds were planted.” LOL
    I’m going to refrain from discussing the details of the issue. It’s off topic (this post was about specific language). Cory’s blog has been the victim of false witness by fundamental zealots accusing us of being “The Pot Blog”. Mr. Heidelberger is 100% against marijuana use and sees no reason to make access to recreational pot easier. He sees it as a waste of brain cells, personal energy and time (which could be better spent supporting him for Sec. of State). :0)

  13. Miranda Gohn

    The language of the ballot measure is flawed and even the medical version that New Approach will cause all kinds of problems for rental property owners with the risk of high humidity rates, residue on walls and odor that will be hard to remove even using a vape whatever they use that is scented. It can still be absorbed into the drywall especially for the property owners that will not allow smoking in their units. Plus an increased risk of fire from possible jerry rigged lighting systems and insurance costs will go up. More than likely there will be a mobilization of property owners. Doubt the slum lords will care much.

  14. Miranda Gohn

    Porter, Dakota Free Press is widely known as “The Pot Blog”. Everyone knows that across the state and to find the latest happenings pot related here in South Dakota. No biggie. No need to get defensive about it or try to keep anything under wraps.

    That is why I posted if they are going to legalize which I personally would prefer they do not but lets do it the right way to do as much as we can to minimize the downsides, put all the cards on the table and quit the baloney and it would go much further in helping South Dakotans decide to legalize or not so they do not regret later on like what happened with video lottery. The revenue could better fund something that is badly needed. Same approach was discussed and agreed upon in Minnesota. The voters decide in the end.

  15. [Absolutely mistaken, Miranda. This is not a pot blog. It is certainly not a pot advocacy blog. I dispute your “widely known” characterization and demand either evidence or withdrawal. I have never received feedback from pot users citing me as one of their primary sources of pot information, nor do I seek any such role, other than whatever credence my blog may get by being a great source of smart, reliable information on a wide variety of political issues in South Dakota.]