Code Commission Considers Initiative/Legislature Conflicts, Findings, and Code Structure

The Legislature’s Code Commission is up to some serious law-nerd business tomorrow. Check out the recommendations Code Counsel Wenzel J. Cummings of the Legislative Research Council has placed on their Wednesday agenda:

First off, LRC has noticed that the absurdly long timeline the Legislature has created for the drafting, petitioning, voting, and ultimate enactment of ballot measures has created enormous legal uncertainty for citizens trying to initiate laws. Consider the case of my own failed People Power Initiative. I started drafting this initiative last year and submitted it to the LRC for review in August 2018. Attorney General Marty Jackley submitted the final language of the initiative in December 2018. Had it made the 2020 ballot and won voter approval, it would have been enacted on July 1, 2021. From the time my petition was locked to the time it would have become law, three Legislative Sessions would have passed. The Legislature would have had three opportunities to tinker with or completely repeal the statutes that my initiative addressed. They did so in the 2019 Session with House Bill 1094. They will likely tinker further with those statutes in the 2020 Session (since HB 1094 is cruising for a court bruising in December). Had my initiative passed in November 2020, the Republican Legislature was likely to defang or straight up repeal it in 2021.

The Code Commission currently has statutory authority under SDCL 2-16-9  to reconcile any conflicts in state laws. The state has also played by a general rule that, when statutes conflict, the last one enacted takes precedence. Code Counsel Cummings thinks we need stronger guidance:

…the Code Commission should recommend to the Legislature how to resolve any conflict between a ballot measure and a subsequently enacted act of the Legislature, in particular whenever a ballot measure amends a statute that has been amended or repealed by the Legislature. Additionally, the Commission should recommend to the Legislature that the rule of “last enactment prevails” for legislative enactments be codified [Code Counsel Wenzel Cummings, memo to Code Commission, 2019.10.10].

The rule of last enactment seems a reasonable and sufficient legal standard. If the Legislature changes the law an initiative amends, and the people still pass the initiative, the people’s vote should take priority over the Legislature’s earlier action. But we can expect the initiative-hating Legislature to use this recommendation as a shell for their next attack against ballot measures: immediate nullification of any initiative that creates the sort of conflict Wenzel describes in this memo.

In his second recommendation, Code Counsel Cummings suggests that the Code Commission take action to keep our laws from being cluttered by legislators’ mostly useless “legislative findings”:

While this Commission does not have the authority to prevent a legislator from including anything in a bill draft, this Commission may determine whether to include statements of legislative findings or intent in the Code. The Commission should provide guidance to the Code Counsel as to whether to continue codifying these statements or allow them to remain uncodified [Cummings, 2019.10.10].

Our abortion statutes are riddled with this grandstanding pap, thanks to sanctimonious woman- and speech-haters like Al Novstrup. Findings belong on in the floor debates, not in the law books. Make it so, Code Commission! Uncodify that garbage!

Clearing out those cobwebby findings may make implementing the Code Counsel’s third recommendation easier. LRC apparently wants to reverse a practice adopted in 1967 of dividing laws into separate short sections, one for each thought or action. It seemed like a good idea at the time, making specific laws easier to locate and amend, but…

While the goal of making the Code easier to understand is laudable, the decision to keep sections short has had multiple unintended consequences, some of which subvert the goal of making the Code easier to understand. Breaking laws on the same topic into multiple sections [forces] a person [to] read multiple sections that interrelate in order to determine what the law is. In many cases, sections that relate to the same topic are located several sections apart, or in some cases, are located in entirely different chapters or titles. Several sections related to the same topic either are in conflict with or, in some cases, direct contradiction to each other. The short sections have allowed for inconsistent naming conventions and have made various legal processes unnecessarily complicated [Cummings, 2019.10.10].

Code Counsel Cummings recommends returning to longer-form sections, that address an entire topic in fell swoop. But LRC doesn’t want huge narrative paragraphs; they want long sections broken down into subsections and subdivisions. Cummings provides as an example SDCL 27A-10, our chapter on involuntary commitment to mental health facilities. LRC proposes combining those 29 sections, each identifiable with its unique three part index number (title.chapter.section) with eleven sections, each with down to three levels of subdivisions. For instance, a provision currently in the unnumbered second paragraph of SDCL 27A-10-5 requiring notice to a person involuntarily committed of responsibility costs of post-commitment treatment would get its own unique citation: SDCL 27A-10-26(5)(a)(1).

Hmmm… I’m sure Code Commission can nail down the punctuation for that sub-sub-subsectioning. They just better make sure that they keep the old statutes online and forward link to the new codification so I don’t have to go back and redo the thousands of hyperlinked statutory citations in my blogging!

The Code Commission takes up these recommendations on resolving conflicts in initiated measures, uncodifying Legislative findings, and re-permitting long sections with sub-sub-sub-sections after their discussion of further digitization of South Dakota Codified Law. The fun starts tomorrow morning (Wednesday!) at 10:00 a.m. Central in Room 363 of the Capitol in Pierre!