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HB 1062: Anti-Democrat Deutsch Wants Citizen Sponsors to Pay AG Bills for Unconstitutional Amendments

Republicans have another bill attacking the initiative process in South Dakota. Representative Fred Deutsch (R-4/Florence), with the backing of my neighbor Representative Carl Perry (R-3/Aberdeen) and several other anti-democracy Republicans, has filed House Bill 1062, which would make sponsors of initiated amendments reimburse the Attorney General’s office for the cost of defending initiatives in court.

HB 1062 puts sponsors on the hook for bad initiated amendments only after their passage by the voters, only if a court rules the initiatives “substantially or wholly unconstitutional”, and only if the Attorney General officially notifies sponsors that their measures may violate the Constitution. That notice from the Attorney General would not be the brief tagline regularly applied to the public, 200-word explanation that the AG must provide to sponsors before they circulate their petitions; HB 1062 requires a separate notification, sent to the sponsor prior to the official public explanation, detailing “the potential reasons that [the initiative] may be unconstitutional.”

Producing such a letter is trivial for an Attorney General’s office that wants to sandbag a petition drive for a measure that the state doesn’t like. Making citizens who put legislation to a public vote liable for the court costs the Attorney General incurs in doing his job is just one more way to scare citizens away from proposing initiatives.

House Bill 1062 can’t apply to the sponsors of Amendment A, who are already paying their own lawyer bills to help the Attorney General’s office fight Governor Noem’s lawsuit against their successful initiative. Killer Attorney General Jason Ravnsborg provided his explanation of Amendment A back in August 2019, so he couldn’t have provided the official notification HB 1062 would require. (Interestingly, the AG’s official explanation didn’t actually say Amendment A might be unconstitutional; it just said the cannabis amendment might require “judicial clarification.”)

HB 1062 only deals with amendments, not initiated laws. (Expect some Republican in committee to ask, “Why not?” and propose an amendment to that effect.) In a double standard, HB 1062 only deals with amendments that come from the people, not amendments that the Legislature places on the ballot. Why shouldn’t legislators like Deutsch by personally liable when they propose unconstitutional amendments? Representative Deutsch certainly doesn’t want to extend his thinking to legislators who propose legislation that doesn’t pass constitutional muster. He surely didn’t want Governor Kristi Noem to have to pay the Attorney General’s costs for his feckless defense of her unconstitutional pro-pipeline anti-protest legislation in 2019. Why should regular citizens be subject to any liability for their exercise of legislative power that legislators, the governor, lobbyists, and others who produce bill text do not face?

Had Deutsch put forward some sort of sponsor liability that applied to all initiatives a few years earlier, it would have redounded against one of his fellow anti-initiative elitists, G. Mark Mickelson, who sponsored 2018’s Initiated Measure 24, a ban on out-of-state contributions to ballot question campaigns, which I killed in court as a violation of the First Amendment. Much as I would have enjoyed seeing Mickelson personally pay for his attack on the initiative process, I was satisfied simply to see bad law revoked, Mickelson chastened, and the cost of losing the court case laid on the state in general. Besides, whether or not a court determines an initiative is unconstitutional, it is unfair to make initiative sponsors who act in good faith pay for the unsuccessful and unethical lawyering of the Attorney General.

Representative Deutsch has previously aped his party’s line against popular participation in government via initiative. He, like the rest of his party, doesn’t want us commoners speaking up and intruding on their Club’s power and privilege. HB 1062’s targeting of citizen-initiated measures and not legislatively proposed amendments lays bare Deutsch’s Republican elitism.

If Deutsch and his fellow anti-democrats want to quash initiated amendments, they have plenty of opportunity to do so at the polls. Convince the voters that an initiated amendment is unconstitutional and stop it from ever entering the books. Otherwise, once an amendment is passed, it is everybody’s law, not just the sponsors’ or the proponents’, and its defense is the responsibility of the Attorney General, representing the state as a whole.

11 Comments

  1. Donald Pay 2021-01-19

    This bill is, of course, unconstitutional.

  2. Jenny 2021-01-19

    SDs annual anti-gay potty bill proposals will be just around the corner. I’ve got MN Public Radio on speed dial when the first one comes in. I know you just want all that anti-gay publicity, don’t you SD? It is so good for business.

  3. mike from iowa 2021-01-19

    Reasons initiatives might be found unconstitutional….One party rule. One party Soopreme Court. Magats.

  4. Dicta 2021-01-19

    Translation: only the wealthy can risk bringing initiated measures.

  5. Donald Pay 2021-01-19

    Dicta, not sure that’s the case. As Donald Trump taught us: there are lots of ways to beat and cheat. What will happen is people will just recruit poor folks to sponsor. No assets, so they can sue all they want and get zilch. Or do as we did. We formed a non-profit corporation with very few assets to sponsor our initiatives. The corporation would be responsible. Then you bleed the corporation dry. All this bill is going to do is increase the cost to the state, as they try to eff with citizens utilizing their constitutional rights. Besides, the bill is clearly unconstitutional. Why don’t these guys put their money where their mouth is and make Legislators who sponsor unconstitutional laws to fork over money? Because they are chickensh*t.

  6. Mark Anderson 2021-01-19

    Come on South Dakota, you know the legislature and Kristi know all and see all. You don’t need to have any initiative at all. The state will take care of all your concerns. Soon you will learn that in your new civics classes. I’m sure they will offer night time classes for adults.

  7. Dicta 2021-01-19

    There are ways around judgment proof defendants claiming no funds, to include taking you car, putting a lien on your home or garnishing your wages. So yeah, I strongly disagree with your point, Donald.

  8. Donald Pay 2021-01-19

    Sure, that can go on and on, Dicta. The poor citizen will countersue, and then the state escalates its viciousness, and then someone gets shot. Welcome to South Dakota.

    I’m not sure why citizens are the enemy of the Republican Party, but it’s clear the Republican Party fear what it considers to be its subjects. They’re like the Romanovs, thinking they have a devine right to lord it over anyone who questions them. Isn’t it time they call a halt to their war on citizens and respect the voters?

    Legislators and AGs play the game of “could be unconstitutional” on every single controversial bill. It’s a joke. And when an initiative is written so as to be constitutional, some $3,000 an hour attorney will be trotted out to twist the meaning of words and try to make it unconstitutional, like they tried to do with the solid waste initiative. If you’re going to play that game, make it apply to everyone, including legislators and the governor.

  9. o 2021-01-19

    Will legislators be held similarly financially accountable when they write, sponsor and pass unconstitutional laws? (How about when they pass resolutions that do not enact policy but update us on their feelings?)

    How about equal exposure: if an Amendment is constitutional, the state will reimburse all costs to bring that Amendment to fruition? After all, that is doing the work of the state.

    I will also roll my eyes at the party that supports releasing businesses from any indemnity for policies and decisions they make that spread COVID.

    Accountability — for the other guy — is the party mantra.

  10. Cory Allen Heidelberger Post author | 2021-01-19

    Donald, explain the unconstitutionality of HB 1062 for us. Which constitutional provisions prevent the state from wringing court costs out of an initiated amendment’s sponsor?

  11. Donald Pay 2021-01-19

    The sponsor need not be a party to any court case arising from passage of an initiative, just as a sponsor of a bill is not a party to a court case arising from a challenge to a bill. When a bill or initiative passes it moves from the sponsors’ domain to the state’s domain. The sponsor does not enact an initiative. The people do. If the people pass a law that is found to be unconstitutional law, the people through the Legislature or through an initiative are responsible for fixing it to make it constitutional. If the sponsors are not parties, how can they be responsible for any part of the court costs. They didn’t pass the law. The people or the Legislature did.

    What about the party that brings the case in the first place. What if they lose the case? Why can’t the sponsor obtain costs from them if they lose?

    You know, SDDS lost umpteen times on all their state lawsuits. They kept losing and losing and jacking up the costs to the state for the state voters for voting against their dump. What about that? Is it just the people of South Dakota that have to pay for a court challenge? Why not the Legislature, who ignores the will of the people?

    W

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