HB 1007 Back from Dead, Hoghoused as Single-Subject Restriction on Initiated Laws

Deferral to the 41st Legislative day usually means a bill is dead. House Bill 1007, one of the few reasonable, constructive proposals to come out of the Initiative and Referendum Task Force, received that death sentence from House State Affairs on January 17, the sixth day of Session. So we direct-democracy advocates figured that bill was dead and we could focus our attention on other bills.

But last week, on February 6, at the top of their unusual afternoon meeting, House State Affairs brought HB 1007 back to life and hoghoused it. Republican Rep. Tona Rozum (R-20/Mitchell) moved, with anti-initiative Speaker G. Mark Mickelson’s swift seconds, to reconsider HB 1007, then offered an amendment to gut the effort to create a Citizen Initiative Review Commission and stuff HB 1007’s carcass with this foul trick against our right to initiate laws:

No initiated measure may embrace more than one subject, which shall be expressed in the title. If more than one initiated measure is submitted at the same election each shall be so prepared and distinguished that it can be voted upon separately [hoghouse language, House Bill 1007, as amended in House State Affairs, 2018.02.06].

The new HB 1007 would operate in tandem with House Joint Resolution 1006, which would restrict our ability to amend our constitution to single-subject amendments. These single-subject restrictions are part of Republicans’ continued reaction to last year’s Anti-Corruption Act (a.k.a. IM 22), the popular initiative they repealed last year and which they desperately trying to keep us from restoring beyond their reach with Amendment W. Republicans argued in their lawsuit against the Anti-Corruption Act that the initiative violated the constitutional prohibition on multi-subject laws, even though they themselves violate that restriction regularly when they see fit. Judge Barnett never ruled on the single-subject argument, and the Anti-Corruption Act and Amendment W both treat of a single subject, government corruption.

We may question now whether hoghoused HB 1007 is either necessary or constitutional. If the single-subject restriction in Article 3 Section 21 applies to initiated measures as well as laws proposed in the Legislature, then a statute applying the restriction to initiated measures is superfluous. By proposing this hoghouse, Republicans appear to be conceding Count 10 of their 2016 lawsuit and admitting that Article 3 Section 21 does not apply to initiated measures. If that’s the case, then we would default back to Article 3 Section 1, which says we “expressly reserve” to ourselves “the right to propose measures….” Article 3 reserves that unrestricted right to ourselves, then doles out to the Legislature its limited authority to make laws. The Legislature cannot turn around and restrict our reserved right unless we amend our constitution.

Thus, HB 1007, a statutory restriction on our reserved right to propose measures, is unconstitutional. Rep. Rozum and Speaker Mickeson can try to hoghouse a joint resolution (hey, Speaker Mickelson is secretly negotiating with big-money out-of-state interests to moot his HJR 1004, the Marsy’s Law repeal, so use that one!) and put a single-subject initiative amendment to a public vote like HJR 1006 would get, but they can’t restrict initiative subjects by their vote alone via statute.

Besides, a single-subject rule does not serve the same practical necessity with initiatives as it does with laws passed by the Legislature. Bills like HB 1007 move quickly. Legislative tricks, like this hoghouse of a killed bill, may slip under the public radar in a fast-paced, bill-packed Session and get little public scrutiny. Legislators themselves fail to read some of the bills they sponsor and vote on. The single-subject rule in the Capitol prevents some legislative chicanery.

But initiated measures circulate well over a year before the election. The public has ample time to read every line of initiatives and determine if they hold any Easter eggs or deceptive clauses. No recent initiatives have attempted to tackle clearly disparate subjects, and I would contend that a genuinely multi-subject initiative would fail under the weight of its own complication among a cautious, conservative electorate.

Multi-subject initiatives are another bogeyman hoisted by Republicans to justify further restricting our right to make laws. We’ve clipped clubby Republican wings with initiatives; now they are trying to chop our wings off.

The HB 1007 hoghouse is bad for initiative. Funny, then, that two initiative-minded Democrats who sit on House State Affairs, Reps. Julie Bartling and Spencer Hawley, aren’t heard nay-ing this further attack on our initiative rights. Maybe they are saving their fire for Monday (tomorrow!) at 7:45 a.m., when House State Affairs will take testimony on this hoghouse proposal and consider sending it to the House floor.

Related Jurisprudence: Whether Article 3 Section 21 applies to initiated measures remains unclear. However, multiple cases in the South Dakota Supreme Court have explained that the purpose of the single subject rule is threefold:

(1) prevent combining into one bill several diverse measures which have no common basis except, perhaps their separate inability to receive a favorable vote on their own merits; (2) prevent the unintentional and unknowing passage of provisions inserted in a bill of which the title gives no intimation; and (3) fairly apprise the public of matters which are contained in the various bills and to prevent fraud or deception of the public as to matters being considered by the legislature [Simpson v. Tobin, 367 N.W.2d 757 (1985)].

But overturning a law on the single-subject argument isn’t easy:

Article III, § 21 does not require that the title index the contents of the Act and there is no restriction on the scope of a single subject provided it is encompassed in the title. If the provision of the Act fairly relates to the subject, it will meet constitutional requirements. Objections to a legislative act on the grounds that it embraces more than one subject not adequately expressed in its title should be grave, and the conflict between the statute and the constitution must be plain and manifest, before it may be justifiably declared unconstitutional and void. We also held that sound policy and legislative convenience dictate liberal construction of the title and the subject matter in reviewing compliance with Article III, § 21 [Simpson v. Tobin, 367 N.W.2d 757 (1985)].