The Republican attack on South Dakotans’ right to make their own laws continues. After overturning voter-approved Amendment A on a stretched legal technicality, Governor Kristi Noem this week launched a financial attack on the sponsors* of that marijuana legalization initiative, saying she intends to force them to pay her private lawyers for waging that lawsuit:
And though Noem unilaterally authorized the state’s involvement in the case against South Dakota For Better Marijuana Laws, the campaign committee responsible for putting the question of cannabis legalization before the voters, taxpayers shouldn’t have to foot the bill, said Ian Fury, a spokesman in the governor’s office.
“The proponents of Amendment A submitted an unconstitutional amendment and should reimburse South Dakota taxpayers for the costs associated with their drafting errors,” he told the Argus Leader, noting drafters of the ballot measure were warned by both the Legislative Research Council and the South Dakota Attorney General’s Office that the ballot measure was vulnerable to a legal challenge [Joe Sneve, “Gov. Noem Wants Pro-Marijuana Group to Cover Costs of Fighting Amendment A in Court,” Sioux Falls Argus Leader, 2022.01.14].
Matthew Schweich, campaign director for South Dakotans for Better Marijuana Laws, the sponsoring ballot question committee whom Noem is targeting, says there’s no way they’ll pay Noem’s lawyer bills:
South Dakota cannabis reform advocates have no obligation to pay for @govkristinoem‘s political crusade to overturn the will of the people. To suggest otherwise is ridiculous.
Amendment A was a sensible and well-drafted initiative approved by a majority of South Dakota voters at the ballot box, and it was only repealed due to a deeply flawed court ruling that relied on a far-fetched legal theory lacking evidentiary support.
Driven by her desire to deprive South Dakotans of personal freedom on cannabis, Gov. Noem went out of her way to create an unnecessary legal battle over Amendment A and used taxpayer money to do it. As a result of her actions, South Dakotans paid to have their own votes reversed [Matthew Schweich, tweets, 2022.01.14].
I have twice successfully sued the state of South Dakota to overturn unconstitutional laws. In 2019, a federal court overturned Initiated Measure 24; in 2020, the same federal court overturned 2019 House Bill 1094. In both cases, the losing party—the state—had to pay the prevailing party—me—attorney fees for the trouble we had to go to to defend the voters and the Constitution from South Dakota’s overreach.
So why shouldn’t Noem and her legal lapdogs, as the prevailing party in this lawsuit, get attorney fees for prevailing over the will of the people?
They should, just not from the sponsors of Amendment A. Noem’s lawyers should get compensation from the same source as my attorney did in SD Voice v. Noem I and SD Voice v. Noem II: the state of South Dakota.
Speaker of the House G. Mark Mickelson was the sponsor of and primary concocter of legal arguments for Initiated Measure 24. But I never envisioned suing him, much less charging him for my trouble. Representative Jon Hansen was the sponsor of and primary public and courtroom advocate for 2019 HB 1094. But I never envisioned suing him, much less taking attorney fees out of his attorney hide. G. Mark and Jon and Matthew Schweich and everyone else in this state are free to propose all the laws they want, hare-brained and otherwise, without incurring any legal liability. It’s the entity that enacts a hare-brained idea that bears the liability for violating the Constitution.
The state, through a popular vote, enacted IM 24. The state bore the cost of defending IM 24 and paying for its unconstitutionality.
The state, through Legislative votes and gubernatorial signature, enacted 2019 HB 1094. The state bore the cost of defending HB 1094 and paying for its unconstitutionality.
The state, through a popular vote, enacted Amendment A. The state bears the cost of defending Amendment A and paying for its unconstitutionality.
Sponsors of legislation, whether bills in the Legislature or initiatives on the ballot, certainly get the ball rolling. But sponsors do not enact laws: the body politic does. Sponsors may propose unconstitutional ideas, but those ideas violate no one’s rights until the body politic—through its elected representatives or through direct democracy—enacts those ideas. And upon enactment, liability for those bad ideas falls entirely on the enacting body—We the People.
Noem isn’t attacking the sponsors of Amendment A because she hates marijuana. She’s threatening SDBML with a six-figure legal bill because she and her party hate democracy. South Dakota Republicans have floated bills to impose legal costs on ballot question committees that would bankrupt grassroots organizations and thus scare low-budget citizen groups off the political field.
Shifting the liability for unconstitutional laws from the state to the sponsors of those measures could backfire on the Governor. After all, she has proposed at least four measures to the 2022 Legislature—prayer in school, transgender athlete bans, restrictions on teaching history and civics—that could face legal challenges (prayer, transgender, CRT trivial and substantial). If any of Noem’s hare-brained ideas are enacted and the courts overturn them, will Noem agree to pay the prevailing plaintiffs from her personal finances? If Rep. Fred Deutsch gets his anti-trans bill passed, or if Rep. Aaron Aylward and Sen. Jessica Castleberry get the Legislature to enact their police-defunding nullification bill, do we get to crush their personal finances when their bills fail in court?
With her threat to make Amendment A’s sponsors pay her lawyer bills, Governor Noem is like a terrorist pointing a gun on a plane at 30,000 feet. She thinks she’s hijacking the initiative process, but if she pulls that trigger, everybody’s in trouble, including her own squad of hijackers.
*The sponsors of Amendment A have also paid this blog $100 to advertise their current initiative petition drive. That sponsorship has no impact on the content, tone, or publication of my analysis of this issue.