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LRC Warns Cannabis Initiative Can’t Appropriate Money, Gave No Such Warning To Mickelson’s Tobacco Tax

The Legislative Research Council finally got around to reviewing Melissa Mentele’s latest cannabis initiatives. The Emery advocate and leader of New Approach SD offers an initiative to legalize medical marijuana and an initiative to legalize, tax, and regulate general marijuana use.

As with the 2017 initiative that New Approach petitioned but failed to place on the 2018 ballot, the general legalization measure would collect taxes and appropriate money for education, drug treatment, law enforcement, and the general fund. As Bob Mercer notices, LRC warns Mentele that the state constitution prevents us from spending money by initiative:

Section 34 of the measure may create a constitutional question under Article 12 of the South Dakota Constitution regarding appropriations. Under section 34, revenue in excess of that which is necessary for the enforcement of the measure is to be deposited into a special fund called the “cannabis regulation fund” and then distributed in five different manners. Because the revenue is not being deposited into the state general fund, this may be considered a special appropriation. Under Article 12, § 2 of the state constitution, a special appropriation must be made by a separate bill in the Legislature and requires a two-thirds vote of each chamber. The constitution does not provide for any appropriation-special or general-by initiated measure. To avoid this constitutional question, we recommend removing section 34 of the measure [Jason Hancock, LRC letter to Melissa Mentele, 2019.04.25].

That’s funny: when then-Speaker G. Mark Mickelson submitted an initiative in 2017 that taxed a drug people smoke and appropriated the money for education, the LRC made no mention of the potential constitutional conflict of appropriating money by initiative. The LRC did issue that warning to the backers of IM 22 in 2015.

Hmm… so if I understand this right, Article 12 Section 2 of the South Dakota Constitution only prohibits initiatives proposing to tax and spend money in ways the Legislature opposes. Got it.


  1. grudznick 2019-05-09 09:24

    That is correct, Mr. H. The Council does the bidding of their masters.

  2. Donald Pay 2019-05-09 11:09

    Yup, it’s one law for the subjects and another law for the elite. Aren’t you folks getting tired of the corruption?

  3. Cory Allen Heidelberger Post author | 2019-05-09 21:51

    Very tired of it, Donald, but willing to challenge it. We need to make the argument that Article 12 applies to the Legislature. Article 3 speaks of the power the people reserve to make laws. We had that right before delegating certain Legislative authority to the body we send to the fancy Pierre gulag in winter. Article 12 restricts the power of that legislative body, not the original power retained by the people.

  4. John 2019-05-09 23:41

    Why can’t they write a clean bill?…according to LRC this Initiative contradicts a number of current statutes and has a lot of issues with constitutionality.

    Back to the drawing board

  5. Debbo 2019-05-11 00:52

    Speaking of drugs, SD ought to emulate Portugal’s hugely successful drug laws.

    “Since it decriminalised all drugs in 2001, Portugal has seen dramatic drops in overdoses, HIV infection and drug-related crime.”
    The Guardian

  6. Cory Allen Heidelberger Post author | 2019-05-11 15:54

    John, the LRC is reasonably good at advising initiative writers on how to turn their ideas into functional legislation by pointing exactly those kinds of legal complications. That’s why LRC is the first stop for first drafts of initiatives. The drawing board is exactly where Mentele’s group gets to go, making the revisions to improve their initiative. That’s the process.

    I went through the same process with my circulating initiative. I submitted my first draft in August. Within fifteen business days, the LRC responded with a number of helpful drafting tips, including notes about other statutory references that I’d need to strike to make my bill have the full effect intended. LRC is helpful in that regard.

    But the question here isn’t about whether NASD, SD Voice, or any other grassroots initiative writers can write perfect legislation on the first draft. The question here is about a broader principle: can initiatives tax and spend? I contend that we can—it seems absurd to reserve legislative power to the people but tell them they can’t execute a basic legislative function—but whether we can or can’t is unclear from LRC’s inconsistent advice, telling IM 22 backers and Mentele that we can’t but never telling the same to G. Mark Mickelson when he sought to raise and appropriate tobacco taxes.

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