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Noem’s Lawyers and AG Wrong: Opponents Can Challenge Proposed Amendments Under Single-Subject Rule Before Election

Governor Kristi Noem’s lawyers went to court to fight Amendment A, South Dakota’s impending marijuana constitutionalization. On one key point, the Attorney General’s office, which is supposed to be defending the people’s vote, appears to have helped Noem’s lackeys make their case.

One of the arguments raised by the sponsors of Amendment A, who are also intervening in court on defense, is the doctrine of laches: because Noem is attacking the process by which Amendment A qualified for the ballot and not the amendment itself,  Noem had to bring her case against the measure before the election, not after the voters spoke. Noem gambled that voters would reject the measure while she was off gallivanting across the country, lost that gamble, and waited until November 20 to send her minions to court, so Noem’s lawsuit is too late.

Noem lawyer Bob Morris argued before Noem appointee Judge Christina Klinger the exact opposite, that Noem’s minions, Pennington County Sheriff Kevin Thom and Highway Patrol Colonel Rick Miller, could not take Amendment A to court until after the voters approved it:

Morris, meanwhile, argued Thom and Miller could not have challenged Amendment A before the election, because the South Dakota Supreme Court has said it will not hear preemptory challenges to proposed ballot measures or proposed legislation before they have passed.

“There was no legal way or avenue or vehicle prior to the election to challenge Amendment A,” Morris told Klinger [Jonathan Ellis, “Legal Marijuana Amendment Comes Under Fire in Pierre Courtroom,” that Sioux Falls paper, 2021.01.27].

Brendan Johnson, lawyer for the sponsors of Amendment A, stuck to that argument, but Ellis indicates that the Attorney General’s Office mostly conceded that point:

That proved to be the one area of agreement between the challengers and the South Dakota Attorney General’s Office, which is legally required to defend the amendment. In his opening remarks in the case, Assistant Attorney General Grant Flynn said the South Dakota Supreme Court rarely issues advisory opinions and the court does not engage in hypotheticals before something has passed [Ellis, 2021.01.27].

Both Morris and Flynn are wrong. Courts can and should hear challenges to ballot questions before the election. Just last September, the Nebraska Supreme Court heard a challenge to a pending ballot measure on medical marijuana and threw it off the ballot for violating Nebraska’s single-subject rule. In 2014, the Supreme Court of Colorado heard a single-subject challenge before the election against an effort to repeal the Colorado Constitution’s provisions for recall elections and struck the measure from the ballot. In 2000, the Florida Supreme Court issued an advisory opinion prior to the election that an initiative dismantling affirmative action violated Florida’s single-subject rule and blocked the measures from going to a vote.

The single-subject rule at issue in South Dakota, the clause we ill-conceivedly* added to Article 23 Section 1 in 2018, says, “No proposed amendment may embrace more than one subject.” The Constitution refers to “proposed” amendments, not “enacted” amendments. When an amendment is proposed, it is subject to and adjudicable under the single-subject rule. If Noem thought Amendment A violated the single-subject rule, she needed to hustle into court right away, before the election, to stop that illegally proposed amendment from sullying our sacred ballot.

Precedent from other states’ application of their single-subject rule and the language of South Dakota’s own single-subject rule make clear that Noem and her lawyers had the opportunity (and the Governor would say duty)

*     *     *

*Ill-advised: In 1983, election law expert Daniel Hays Lowenstein wrote that single-subject rules are problematic because they are “infinitely malleable“:

If we examine only the words of the single-subject rule, two extreme interpretations are possible. On the one hand, we might plausibly conclude that no initiative could possibly violate the rule. Consider the most bizzare assortment of unrelated provisions you can imagine. The mere fact that the provisions have been put together in one measure makes them constitute a “single subject,” if only for purposes of discussion and study. On the other hand, the language of the single-subject rule also permits an interpretation that would abolish the initiative process altogether. That is, it is impossible to conceive of a measure that could not be broken down into parts, which could in turn be regarded as separate subjects [Daniel H. Lowenstein, “California Initiatives and the Single Subject Rule,” UCLA Law Review, v. 30, 1983, p. 942; cited in Kenneth P. Miller, “Courts as Watchdogs of the Washington State Initiative Process,” Seattle University Law Review, v. 24, 2001, pp. 1077–1078].

Law should consist of clearly definable terms. South Dakota law offers no definition of “single subject”; Lowenstein suggests such a definition is impossible. Holding ballot question sponsors to a standard that is impossible to define and thus subject to the whim of any presiding judge is unworkable and unfair.

23 Comments

  1. RST Tribal Member in 57572 2021-01-31

    The Noem might consider running in 2022 as a Weeder in 2022 instead of rodeo queen or a trump lady in waiting, The weed got more votes than she did…

  2. Donald Pay 2021-01-31

    That Lowenstein quote is the clearest explication on the single subject rule, which is that it’s so vague that it’s useless. Supposedly the Legislature is bound by that rule, too. It’s violated all the time, in my opinion. But, that’s my opinion, and it doesn’t mean squat. Until there is a clear definition of what a “single subject” is, if that can ever be done, we are stuck with the Lowenstein conundrum.

    Who wants to take a stab at a definition?

  3. Whitless 2021-01-31

    Cory, you are correct that challenging Amendment A on an alleged violation of the one subject rule should have been made prior to the election. The constitutional language you cited is plainly clear that the one subject rule applies to a “proposed amendment.” While courts are reluctant to offer advisory opinions on the subject matter of a proposed amendment, that reluctance should not apply to whether the proposed amendment meets the form requirement of the one subject rule. The state should have argued that the alleged violation of the one subject rule was waived. Why? The constitutional language is that a proposed amendment must not violate the one subject rule. That language places a burden, a requirement, that any challenge to the one subject rule must be commenced before an election is held. If a proposed amendment is passed, then the one subject rule is moot because it only applies to proposed amendments, not enacted amendments.

  4. Donald Pay 2021-01-31

    In 1988 we brought two mining initiatives, because we felt the two proposals dealt with different matters. One dealt with regulation of mining, the other with an increased severance tax to create a fund for any needed cleanups at mines. In 1989 Governor Mickelson rolled a whole bunch of new statutes to separate titles dealing with mining, solid waste and other matters into an omnibus bill on the environment. Now who was following the law and who wasn’t?

  5. Susan 2021-01-31

    We Voted. Noem and her buddies are attempting to take our votes away. Many, MANY, South Dakotans are angry as hell, as they should be. WE VOTED. Full Stop.

  6. mike from iowa 2021-01-31

    just witnessed noem telling a guy at newsmax she just pushed through an anti-abortion bill if the fetus has Down Syndrome. Okay, where is it?

    She also blamed bad outcomes in 2020 on Dems and says drumpf will be remembered as a great potus. I think I am going to be nauseously sick for awhile.

  7. Mark Anderson 2021-01-31

    Well Mr. Pay. A single subject would be like your mantra, which you gently start repeating again when you drift into other thoughts. How’s that for clarity? With Kristi, I’m sure she not so gently starts repeating Trumpenstein, Trumpenstein and forgets all else.

  8. jake 2021-01-31

    Watched Rodeo Rapid City on TV of Sat. night’s saddle bronc match. Of course, Noem was there and had to let the announcer KNOW she was there so the announcer asked everyone to stand and ‘woo-haw” her for the wow factor.
    Super spreader Covid event of course! They ‘panned’ the entire crowd closely all around arena so you could see your neighbors; sadly in whole crowd of thousands, I only saw 5 masks!
    Watch our Covid numbers go up again. Even @ the National Finals before Christmas in Texas, the chute helpers, clowns and even some contestants wore their masks, but not in South Dakota with the governess present.

  9. grudznick 2021-01-31

    Mr. Pay, this is not about what “you” brought in 1988 about digging in the ground, this is about the Demon Weed. I would say to you that until my good friend Bob has his lawyers weigh into this brouhaha we should all just keep our powder dry.

    But hey, back in 1988, and I remember it well, you did great stuff for us who love the environment. Thank you for that.

  10. grudznick 2021-01-31

    Mr. Pay, did not your law bill in 1988 increasing taxes require, by the constitution, a vote of two of the full thirds of the legislatures, while the other minutia about regulations did not? Correct grudznick here if I am wrong. That would be a good reason why there were two law bills. You don’t put minutia in bills to increase taxes.

    Increasing taxes is usually bad, very bad, which is why it is a vote of two of the full thirds.

  11. Bob Newland 2021-01-31

    Any proposal that begins with the words, An Act….” qualifies as a proposal with a single subject.

  12. Bob Newland 2021-01-31

    It’s possible that SCOSoDak will decide that legal weed is definitively too many subjects.

  13. Cory Allen Heidelberger Post author | 2021-01-31

    So vague it’s useless—right on, Donald! That’s Lowenstein’s observation in a nutshell.

    You rightly point out the Legislature’s frequent disregard of that rule. The single-subject rule serves the same purpose in the Capitol as in court: to provide the powers that be a convenient excuse to throw out any measure they don’t like. In the Legislature, all it takes is the Speaker or the Lt. Gov. to rule from the chair that a bill covers more than one subject, and it’s toast.

  14. Cory Allen Heidelberger Post author | 2021-01-31

    Bob, you catch Lowenstein’s first point: we can reasonably argue that anything encompassed in a single Act is a single subject.

  15. Bob Newland 2021-01-31

    Grudznick, your endorsement is as welcome as gonadial scabs.

  16. grudznick 2021-01-31

    I’m your boogie man
    that’s what I am
    I’m here to do
    whatever I can

  17. Cory Allen Heidelberger Post author | 2021-01-31

    Whitless… you may have just helped me enunciate a response that’s been rattling about in my head but hasn’t felt entirely legally solid. I’d like to argue that the voters serve as the court that decides whether an amendment is appropriate. If the voters feel an amendment encompasses too many subjects or should be run through a convention first or is somehow otherwise deficient, the voters will vote No, and the amendment will fail. But that argument doesn’t address the fact that the voters still don’t get to approve and enact unconstitutional measures, like IM 24, the out-of-state-money ban that my attorney Jim Leach and Marty Jackley convinced Judge Kornmann to overturn. The voters’ “final say” isn’t always final, and in the case of unconstitutional measures, should not be.

    But, Whitless, you have provided a reason grounded in the text to give the voters the final say on the single-subject rule. The language of Art. 23 Sec. 1 clearly refers to a “proposed amendment”. Once an amendment has been approved by the voters, the amendment is no longer “proposed”; it is enacted; thus, the court can no longer scrutinize it under the single-subject rule. Single-subject challenges have to happen before the measure goes to a vote.

    I wonder…could that interpretation explain why we never see anyone challenge in court a multi-subject bill signed by the Governor?

  18. Cory Allen Heidelberger Post author | 2021-01-31

    But but but!

    The Pennsylvania Commonwealth Court (an intermediate appeals court, under the PA Supreme Court) this month threw out their version of Marsy’s Law, which PA voters approved in 2019, because it violates the single-subject rule. The Montana Supreme Court in 2017 overturned its voters’ 2016 approval of Marsy’s Law on similar grounds.

    So if we have examples of courts overturning voter-approved ballot measures after the vote on the single-subject rule, a matter of process that, if at all valid, should or at least could be argued at the petition stage, before such a measure makes the ballot, what is the statute of limitations? If Team Noem prevails and kills Amendment A, can we rise up and sue to overturn Marsy’s Law (2016 Amendment S) and the related Amendment Y in 2018? If Amendment A loses, we’ll have Judge Klinger’s decision nicely written out explaining how the court will define “single subject.” We can pull the briefs from Montana and Pennsylvania explaining the multi-subjectivity of Marsy’s Law. We can declare two more public votes, 2016 and 2018, constitutionally invalid, and we can rip the Marsy’s Law farce right back out of our constitution. We could even pull Governor Noem’s executive order on the A lawsuit and argue back that she has a duty to clean up the Constitution and rectify all past invalid multi-subject votes.

  19. Bob Newland 2021-01-31

    Kinda neat, ain’t it? There is no correct answer, so the accepted answer is decided by the folks with the best enforcement apparatus.

  20. Donald Pay 2021-01-31

    Grudz, I’m not sure now how that worked in the Legislature back then, and I don’t recall if we had that increase in severance tax introduced as a bill. My general belief was we should introduce our initiatives as bills, but many people disagreed with me. Our proposal was just an increase in the severance tax, not an new tax and creation of a dedicated fund, so that might have been handled differently in 1988 if it was introduced as a bill. If it was a bill, I doubt it got out of Ag and Natural Resources.

  21. Bob Newland 2021-01-31

    Don Pay, if there’s one lesson to be learned in life, it’s that one is courting despair when one thinks one must justify oneself to the likes of grudzfecal.

  22. Whitless 2021-01-31

    The Montana and Pennsylvania constitutional provisions on single subject amendments is different than South Dakota. Consequently, the reasoning in these cases may not be analogous to South Dakota’s “proposed amendment” language. However, if the court finds that the single subject rule applies post election to Amendment A, then the catch-all 6 year statute of limitations most likely applies.

  23. Rebecca 2021-02-01

    From the archives–voter information pamphlet wording opposing Amendment Z–single subject. Fun to draft, but would have taken a lot of advertising cash to sell in a 30-second spot:

    “Changing the constitution shouldn’t be easy–and it isn’t.

    While Amendment Z affects all constitutional amendments, including those proposed by the legislature, legislators only need a few dozen votes to get an amendment (like this one) on the ballot–citizens must collect tens of thousands of petition signatures for each one.

    Citizen-initiated constitutional amendments often contain multiple subjects to achieve the desired effect. For example, an anti-corruption amendment might contain campaign finance reform and an ethics commission. If voters agree, they vote yes. If they don’t, they vote no.

    Under Amendment Z, an opponent could claim that campaign finance reform and an ethics commission are two subjects, and ask a judge throw the whole amendment out, rather than letting South Dakota voters decide.

    Forcing citizens to separate obviously related subjects into multiple amendments (and gather signatures for each one) is a waste of time and money and only benefits those with deep pockets who can pay for multiple campaigns.

    South Dakota’s motto is, “Under God, The People Rule.” Amendment Z takes away the people’s power and gives it to judges and wealthy special interests. Vote NO.”

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