Should Petitioners Pay for Attorney General’s Error?

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.

7 Responses to Should Petitioners Pay for Attorney General’s Error?

  1. Donald Pay

    Get rid of the AG explanation. It is unconstitutional compelled speech, it violates the separation of powers and it is an unconstitutional interference in the right to petition for redress of grievances.

    Here’s the deal. There is no requirement that the AG explanation have anything to do with reality, let alone has to being anything close to legally correct. The AG could say the initiative would result in green cheese being brought back from the moon, which likely to harm the state’s cheese industry and you’re stuck with it.

    Back in the 1990s the mining industry conducted focus groups to figure out what language needed to be inserted into one of our mining initiatives in order cite that in their advertising campaign. Then they lobbied the AG to insert that language. We found out about it and tried to blow the whistle. This was the ballot explanation, not the stupid thing you have to hand out to folks. The AG explanation process is secretive, and subject to corruption. It needs to go.

    The whole AG explanation is just one of many ridiculous add-on requirements the legislature has unconstitutionally insisted on in their effort to destroy the initiative. It needs to go.

  2. Yes. This shows me Mr. Jackley might be smarter than some of us thought. He has found a way for the AG to completely nullify all of the goofy, big, dark money, out-of-state sponsored initiatives foisted on the voters of South Dakota. You go, Marty!

  3. However, as much as Mr. Jackley did us all a favor by sticking one to Slick Rick, I must ask you to vote against Marty as he was for the Marsy Law and his sidekick is the pusher of that big, dark-money, out-of-state foistering that was hoodwinked onto the ignorant voters by the fellow from Fraiser. Plus, Mr. Jackley did not do enough to point out and kill the heinous Measure #22, which was sloppily written and unconstitutional. Do not vote for Marty.

  4. Donald Pay

    Grudz, It wouldn’t surprise me one bit that a corrupt AG would purposely find a way to use the undemocratic and unconstitutional tools the Legislature has given him to unconstitutionally and corruptly sabotage the people’s right to petition for redress of grievances. That would just be a small extension of the corruption that is rampant in South Dakota. You seem to want to pick and choose your corrupt acts, as if sticking the state with nuclear waste wasn’t part of a corrupt machine effort to enrich the elite. This little act of corruption involving the medical industry would be just one more exhibit of corruption going back a long, long way. The fact is the entire SD government is corrupt, and the initiative and referendum is the only way that it can ever hope to be turned around. The fact is you oppose all initiatives and support the corruption inherent in the way the Legislature has corruptly structured it.

  5. Mr. Pay, did we get stuck with nuclear waste, and if so where are the sealed jars buried?


  6. Donald Pay


    No. But that was not due to the work of the AG, the Governor or most of the Legislature. The latest round in the effort to site a nuclear waste facility in South Dakota failed due to diligence on the part of the people of South Dakota, particular those local heros in Spink and Haakon Counties, and to a few brave legislators and ex-legislators. I point out, Grudz, that there was bi-partisan opposition, and I do want to acknowledge your Congresswoman and one of your US Senators for following the lead of citizens in their opposition. That’s how things can be done when the people lead.

    Sometimes the people can get things done without an initiative, and sometimes it takes that more formal and legalistic approach. In 1984, facing a Governor and a multi-national corporation hell bent on siting a low-level radioactive waste site in South Dakota, the people had little choice but to turn to an initiative (and the subsequent Legislative ballot measure requited by that initiative) to end that effort.

    People have a right to petition for redress of grievances. They have the right to speak their minds freely as the gather signatures. Neither of these Constitutional rights should be sullied by unconstitutional forced speech and an unconstitutional addendum to their petition for redress written by an executive branch representative.

  7. I like Donald’s point about the secrecy of the AG’s composition of his statement. We get no information about whom he consults to inform his explanation. We should at least know who lobbies him and what info he receives as he works on the explanation… but better yet, no one should be lobbying him, and even better, as Donald has helped me understand, he shouldn’t be preparing an explanation that circulators are forced to carry in the first place.