After losing in circuit court last month, the pharmaceutical industry is asking the South Dakota Supreme Court to hear their argument that Attorney General Marty Jackley needed to write a better explanation of the prescription drug price cap initiative petition. The A.G.’s office signals that if Big Pharma wins, the initiative sponsors will pay the ultimate price:
Backers aim to gather thousands of signatures on petitions featuring Jackley’s explanation ahead of next month’s deadline to get on the 2018 ballot. But the appeal from South Dakota Biotech and Washington-based Pharmaceutical Research and Manufacturers of America, or PhRMA, is likely to stretch past the signature submission deadline.
Attorney General spokeswoman Sara Rabern said in an email that if Jackley’s explanation is found to be inadequate, it’s likely that the petition sheets carrying the inadequate explanation would not be valid.
“What’s the recourse?” [initiative sponsor Rick] Weiland said, noting it would be too late to gather new signatures [James Nord, “Legal Challenge Could Scuttle Prescription Drug Initiative,” AP via Pierre Capital Journal, 2017.10.11].
It seems unfair that if the court finds Attorney General Jackley at fault, the penalty would fall on petition sponsors, circulators, and signers who acted in good faith. Permit me to offer an argument for the A.G.’s office to stand up for our well-intentioned petitioners.
Let’s start with SDCL 2-1-11, which says ballot measure petitions “shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality. The requirement that every petition include a statement drafted by the Attorney General seems technical, not to mention irrelevant to (if not burdensome upon) the real intention of the petitioners.
Let’s go further and consider who bears responsibility for the A.G’s statement. SDCL 12-13-25.1 directs the Attorney General to write explanations of each proposed ballot measure. That law gives sponsors no role in composing that statement. SDCL 12-13-9.2allows sponsors (as well as opponents) to challenge the A.G.’s statement, but it gives them only seven days to do so. Petitioners have no duty to put their petition drive on hold and hire lawyers to demand a better, more comprehensive, more informative A.G.’s statement; their only legal duty is to hand out whatever words the A.G. gives them. If they do their duty and succeed in getting the necessary petition signatures, the A.G.’s failure to adequately explain the initiative should not negate that dutiful work.
Consider an analogy to college exams. To pass a class, students have to pass their final exams. If the professor gives shoddy instructions but the students still write A-quality essays demonstrating they did their work and learned the material, the dean shouldn’t annul those grades and make the students take the class over two years from now. The dean should rap the prof’s knuckles (no tenure for you! write better instructions next time!) but let the students’ honest work stand.
We could even take a swing at Big Pharma’s lawsuit by arguing that forcing petitioners to carry the A.G.’s statement is unconstitutional compelled speech. The statutes compelling petitioners to disseminate this speech (SDCL 2-1-1.1 for initiated amendments, SDCL 2-1-1.2 for initiated laws) force petitioners to distribute words from the Attorney General that are not required in any comparable setting of any comparable actors in the political arena. Legislators are not required to recite summaries from the Attorney General when they lobby their colleagues to vote for their bills. Political candidates circulating nominating petitions are not required to tell potential signers what Marty Jackley thinks of them. The A.G.’s statement shouldn’t even be on initiative petitions, let alone be grounds for annulling a petition if the A.G. somehow manages to screw his statement up.
Attorney General Jackley has a duty to keep fighting Big Pharma’s devious lawsuit against his conduct of his statutory duty. If he somehow manages to lose Round 2 of that fight, Attorney General Jackley should make clear the error was his and his alone and use the above arguments to resist any effort to punish petitioners for his error.
Of course, it will be a lot easier to remind our Supremes that Big Pharma’s bumbling attorney’s missed the challenge deadline by two days. Statute gives petition challengers no liberal construal to protect them from technicalities.