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State Responds to Medical Cannabis Petition Suit: Plaintiff Got Notice, Waited Too Long, Still Lacks Signatures

The state has responded to Melissa Mentele’s lawsuit to place the medical cannabis initiative on the November ballot. The state offers three main arguments:

  1. The Secretary of State provided Mentele with proper notice of the final rejection of her petition.
  2. Mentele waited too long, until too close to the ballot question-certification deadline, to seek relief from the court.
  3. Mentele has not established her right to place her initiative on the ballot by demonstrating that the petition has 13,871 valid signatures.

Proper Notice: The plaintiff contends that the Secretary of State failed to notify her by certified mail of the rejection of her petition. The plaintiffs cite SDCL 12-1-15:

The person in charge of the election shall immediately notify by certified mail any candidate whose nominating petition or any primary sponsor whose referendum or initiative petition is rejected and declared invalid in accordance with §§ 12-1-13 and 12-1-14.

The state contends that the requirement of immediate notification by certified mail does not apply in this situation because SDCL 12-1-15 and accompanying statutes in that chapter deal with challenges to petitions. The state contends that the governing statues lie in Chapter 2-1, which sets the rules for the Secretary’s sampling and certification of ballot question petitions. Specifically, the state points to SDCL 2-1-17:

If the random sample indicates that a sufficient number of qualified electors have signed the petition, the secretary of state shall certify that the petition has been signed by the required number of qualified electors and shall place the proposed measure or amendment on the next general election ballot. If the random sample indicates that an insufficient number of qualified electors have signed the petition, the secretary of state shall certify that the petition has not been signed by the required number of qualified electors and may not place the proposed measure or amendment on the next general election ballot. The secretary of state shall, within five days of certifying, notify the petition sponsors of the secretary of state’s action pursuant to this section.

The Secretary’s office phoned Mentele on May 27, 2016, to notify her of its final rejection of the petition. That action alone satisfies the text of SDCL 2-1-17. Additionally, the Secretary’s office provided Mentele with a PDF report of the random sample results, apparently on June 1, 2016.

If SDCL 2-1-17 is the governing statute, the plaintiffs’ improper notification argument goes away. But the state’s argument returns us to the legal murk of the Secretary’s handling of the medical cannabis petition. The accompanying SDCL 2-1-15 says, “Upon the receiving of any initiative petition, referred law petition, or initiated constitutional amendment petition, the secretary of state shall examine the petition.” The Secretary was not examining the petition upon the receiving of said petition under Chapter 2-1. The Secretary was re-examining the petition upon receipt of the challenge Mentele submitted on March 3 to the Secretary’s initial examination and rejection of the medical cannabis petition on February 3. Acting in response to a challenge would appear to take us back to Chapter 12-1. The state’s argument here is this highly questionable.

Doctrine of Laches: That’s the legal term for throwing out a claim because the litigants unreasonably delayed filing their claim and thus put the defendants at an unfair disadvantage. The state explains why waiting sixty-seven days after the Secretary’s second rejection of the petition is an “unreasonable delay”:

The Secretary of State must certify an individualized ballot for each of the sixty-six counties in South Dakota by August 16, 2016. Thus, there are only ten business days, including the day service was effectuated upon the Secretary of State, for the Secretary of State and this Court to act. Pursuing this action at such a late date jeopardizes the Secretary of State’s compliance with SDCL 12-13-1 and the timely preparation of the ballots for the general election. Adding to this burden, Plaintiff’s Complaint, as part of the relief requested, asks that this “Court determine the validity of the challenged signatures.” Complaint, ¶ 23. Plaintiff, however, has not identified which signatures she is challenging. The Secretary of State cannot prepare a response without knowing which signatures are being challenged. Given the limited time frames, it’s undeniable that Plaintiff’s late filing impairs the Secretary of State’s ability to respond. Furthermore, Plaintiff’s late filing requests that this Court rather than Plaintiff bear the burden of demonstrating this measure should be placed on the ballot. With 16,531 signatures potentially at issue, this task is likely insurmountable in the time available. At a very minimum, this request jeopardizes this Court’s ability to hold a full and fair hearing on the merits of this case within the timeframe remaining before the Secretary of State fulfill her statutory duty of certifying the ballot. Accordingly, Plaintiff’s Complaint should be denied [link added; State’s “Brief in Support of Defendant’s Motion for Summary Judgment,” Mentele v. Krebs, 2016.08.05].

Time is tight, but no tighter than the timeframe for taking challenges to primary candidate nominating petitions to court in April or referendum petitions to court in the summer of an election year. The limited time frame hinges not on the production of actual ballots (which don’t have to be printed until September 21) but on the requirement that the Secretary send out 66 notices, one to each county, by August 16. That requirement, which has no impact on any voter’s ability to vote and perhaps on no other vital right or public function, is relatively easy to satisfy: the Secretary can run off 66 copies of the medical cannabis measure, address and stamp them, and put them in a box behind her desk. If the court rules this week that she screwed up and should place this measure on the ballot, she runs that box down the street to the post office. If the court rules in her favor, she shreds those notices. Easy!

If the court takes longer than next week to decide this case, the court issues an order enjoining the Attorney General from clapping the Secretary in irons for not fulfilling her duty under SDCL 12-13-1, saying it’s the court’s fault, not hers, for not sending out that last ballot measure certification. The time frame is tight, but not insurmountable.

Demonstrating Validity: The state’s strongest argument is that we still don’t have evidence that the medical cannabis petition has enough signatures to qualify for the ballot. The Secretary has sampled the petition twice and come up with enough errors to disqualify the petition both times. The state says the plaintiff’s complaint filed Tuesday does not establish that the petition itself has 13,871 valid signatures or that the Secretary erred in rejecting any of the over 10,000 signatures she found invalid. The absence of a certified letter from the Secretary dated May 27 does not by itself render several thousand bogus signatures unbogus; the plaintiff needs to cite evidence and statute (at least SDCL 2-1-11, on liberal construal of petitions and protection of intention of petitions from “mere technicality”) that directly disposes of that bogusness.

And remember: by my calculations, even if Mentele makes the case that the biggest error, notary mistakes, should be ignored under SDCL 12-1-11, Mentele still needs to poke further holes in the Secretary’s second examination of her petition to establish that she really has the 13,871 signatures necessary to access the November ballot. They can ask the judge to review the petition himself, but the judge is going to need some legal and evidentiary prodding to take that remarkable step.

The plaintiff seems to have a fighting chance on the first two arguments. But when court convenes Tuesday at 9 a.m. in Pierre, Mentele and her attorney, Aaron Eiesland, will need to make their case on that third and most basic question: did Secretary Krebs err in counting valid signatures? Does the petition have 13,871 or more valid signatures?


  1. Kris 2016-08-07 14:51

    dude [edited for lack of attention to basic spelling and the original content of the post —CAH]

  2. grudznick 2016-08-07 18:47

    Stop it, all you demon weed people. Just stop it. Weed is bad, it is bad, and it will always get you punished. Just go toke up in the wood shed or in your back pasture and keep it out of the public eye, and when you go insaner than all get out and start doing crimes you don’t get to when you get thrown in the lockup.

  3. Jenny 2016-08-07 19:12

    You’re funny, Grudz.
    Honestly, a little weed never hurt anybody. I know people that get motivated to finish some house projects on it, and I know other people that get sleepy after they smoke the stuff. I know people that use it to break the boredom of their menial lives.
    Some women swear it helps them with those menstrual cramps.

    Which would you rather have – some weed smokers that don’t do much harm or heavily addicted meth and heroin heads.
    It’s too bad the new MN medical marijuana law does not allow out of state patients to come over and apply.

  4. grudznick 2016-08-07 19:17

    Ms. Jenny, the demon weed breeds meth addicts. That is the science behind it.

  5. grudznick 2016-08-07 19:37

    Menstrual cramps are just a punishment fostered upon women by Mr. Howie’s god, in some people’s minds.

  6. Douglas Wiken 2016-08-07 19:38

    Grudz, that is not science. It is myth. Alcohol is more of a gateway drug than pot. SD is the only state that penalizes consumption and also uses catheters like medieval torture instruments to suck urine out of men and women. I really don’t quite understand why conservatives think that something much like the torture in Soviet Gulags, is appropriate for SD.

    That said, I have seen enough misery and tragedy caused by drugs including alcohol that I do not use pot or alcohol. With all the data and obvious evidence available, I do not see why any sane person consumes any illegal drug….with the possible exception of those in acute, chronic pain who find pot and derived components less damaging and debilitating to them than commercial pain relievers.

    Meth and products using opiate-based or similar commercial drugs are now doing really serious damage to people and society. That is where Jackley and others should be working hardest.

  7. grudznick 2016-08-07 20:02

    Do not smoke weed and they will not need to stick needles into your urethra, Mr. Wiken. It is illegal and you should stop.

  8. Roger Cornelius 2016-08-07 21:59

    grudz’s try it during your next menstrual cramps and report back.

  9. barry freed 2016-08-08 08:01

    Why don’t you go down to the children’s cancer ward and tell your jokes?

  10. barry freed 2016-08-08 08:25

    Manager of “SD’s most liberal media”: Through extreme, never seen before machinations, our Rights have been, and are being denied. You report after the fact at every turn, not asking any questions of her as True Media should. This is much bigger than pot, it is an attack on our IM Rights and the tactics will be used in the future if successful.

    Is ALEC behind it?

  11. Roger Cornelius 2016-08-08 11:07

    Which of your “Rights are being attacked or denied”?
    Please be precise.

  12. Douglas Wiken 2016-08-08 11:20

    Grudz, maybe you can get free reading help someplace.

  13. caheidelberger Post author | 2016-08-09 12:12

    Barry, again, your beef is unclear. I have reported Mentele’s and the state’s arguments. I remain keenly concerned about our initiative and referendum rights. I want to hear what the judge says about the Secretary’s rejection of so many signatures on the mere technicality of minor notary error, but that argument has not surfaced in the documents yet. (We’ll see what they said at today’s hearing.)

    What question do you want me to ask? Do you want me to call Secretary Krebs and ask, “Did ALEC pay you to reject the petition?” What’s the point of that? If ALEC is not involved, Secretary Krebs will say “No” and take rightful umbrage at the suggestion that she has not carried out her legal duties. If ALEC is involved, Secretary Krebs will say “No”, and there will be no documentary trail to refute her disavowal.

    I could spend all day asking useless questions. I prefer to publish and analyze the information we have available and invite discussion.

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