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Attorney General Releases Draft Text of Five Ballot Measures Under His Review

In response to a discussion about public records law, Attorney General Marty Jackley has sent Dakota Free Press PDF scans of the five proposed ballot initiatives currently on his desk.

We get our first public look at the proposed constitutional amendment from Doug Kronaizl to strengthen the power of referendum and initiative in South Dakota. The amendment would allow voters to refer laws passed with emergency clauses; whereas regular laws referred to a vote are suspended until/unless voters approve them at the general election, referred laws with emergency clauses would stay in effect until the general election. The amendment would still allow the Legislature to monkey with initiated measures but would require a Nebraska-style two-thirds vote. The amendment would apply to any initiated measures passed in the 2016 general election or thereafter.

The Attorney General’s document also includes the four initiated laws thus far submitted:

  1. A three-section ballot measure to cap interest rates at 36%.
  2. The one-section proposal from Bob Newland and Andrew Ziegler to prohibit the transfer of alcoholic beverages (first reported and discussed on this blog on April 24).
  3. Newland and Ziegler’s similar proposal to ban the transfer of tobacco and tobacco-smoking paraphernalia.
  4. A 95-section proposal to “provide for regulation, access and compassionate use of cannabis in South Dakota.”

Read these drafts with caution: until they are approved and stamped by the Secretary of State, this initiated amendment and the four initiated laws are all drafts. Sponsors may take them back, revise them, simplify or complicate, who knows what. But these documents give us our first complete look, in the sponsors’ own words, at the diverse topics the initiative sponsors want us to decide in 2016.

The release of these ballot measure drafts comes after I got to wondering (out loud, by e-mail, to the Attorney General) about how those documents might fit into South Dakota’s public records laws:

  1. The Attorney General’s office has on file documents showing the draft text of five proposed ballot initiatives.
  2. The documents appear to meet the SDCL 1-27-1.1 definition of public records and thus would be open to examination by any interested person under SDCL 1-27-1.
  3. None of the exceptions of SDCL 1-27-5 appear to exempt draft texts of ballot initiatives from public examination.
  4. SDCL 1-27-7 and SDCL 1-27-9 exempt certain “drafts” from public examination, but these statutes appear not to target ballot initiatives.

But now I’m really wondering: if the drafts of proposed ballot initiatives are public records when they hit the Attorney General’s desk, might they also be public records when they hit the Legislative Research Council’s desk in the preceding stage of the initiative process? And if that’s the case, could we make the same argument about draft legislation submitted by legislators to the LRC prior to the beginning of the Session?



  1. Troy 2015-05-15 06:48

    I think there is a legitimate public policy reason for drafts at the LRC level are not yet public records- they are initial thoughts for legislation and not fully vetted for style and form and potentially unintended consequences of the authors.

    Until LRC goes through it with a level of understanding of these “initial thoughts”, public disclosure could prejudice the voters about the bill not intended by the authors.

    Not only do I think Legislators should have access to a style and form plus unintended consequence vetting, I think it even more important to give citizen advocates of an initiative such access.

    Since these “thoughts” might become public law and serve a public policy, we should maybe consider this first process like providing confidential legal advice.

    If we don’t, we might see only those “thoughts” get explored by those who can afford their own legal counsel.

  2. Troy 2015-05-15 07:01

    P.S. The release of the draft by the AG is analogous to the introduction of a bill by a legislator providing input to the sponsor and giving opportunity for amendment prior to a final vote.

    All in all I think both processes gives us the best opportunity for making law and not having good ideas die because of unintended consequences which can be resolved.

  3. larry kurtz 2015-05-15 07:19

    Imagine Marty writing an objective thought on a cannabis initiative or on Newland’s ballot bill. Marty is catholic and therefore incapable of objectivity. Troy’s sycophancy for all things earth hater is pathetic really.

  4. caheidelberger Post author | 2015-05-15 07:42

    Troy, I understand that rationale, but is that rationale written into the exemptions to the public records law?

  5. Troy 2015-05-15 09:30


    I don’t know if it is or developed via common law practices and principles. Either way, I think it should be as it is because it is especially in the interests of people who might be less knowledgeable and experienced with regard to the nuances of legal language and possible unintended consequences that comes from inadvertent poor drafting.

    I’ll make my other comment on timeline in more detail on that thread. That said, I think more danger comes to an initiated measure from not making proper “tweaks” than lost time.

  6. Bob Newland 2015-05-15 11:07

    Anticipate some entertainment when the fiscal impact statements come out on the ballot questions which seek to ban the transfer of alcohol, tobacco or tobacco paraphernalia.

  7. tara volesky 2015-05-15 11:13

    This is going to be hilarious.

  8. Daniel Buresh 2015-05-15 11:42

    What is the point of banning the transfer of alcohol or tobacco? Why is it being proposed? Someone educate me.

  9. caheidelberger Post author | 2015-05-15 12:23

    The marijuana legalization folks are making a point about the inconsistency of our laws with respect to hazardous chemicals.

  10. Bob Newland 2015-05-15 16:53

    Daniel, the state takes in a huge proportion of its operating money by taxing tobacco and alcohol, thus “condoning” the use of two deadly drugs whose use leads to swaths of bodies as well as widespread injury and violence.

    Consistent South Dakota suggests that the state is, at the least, hypocritical in so doing while jailing people people for the use of a benign herb.

  11. Andrew Ziegler 2015-05-16 19:53

    D. Buresh, What are the “pro’s” of Tobacco for SD? If a legal service provider is labeled ISIS by a legislator, what should we label a governing body that depends on the deaths of 1300 citizens(avg/yr.) to fill it budgetary needs?

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