Wow! Thanks to the generous alacrity of Attorney General Marty Jackley, the rightwingers trying to abolish property tax still have a chance to get their radical ban and retail transaction tax on the 2026 ballot.
And double-wow! Marty took my grammar advice!
As I explained a couple weeks ago, radical anti-government activists Mike Mueller, Julie Frye-Mueller, and Matt Smith dilly-sallied so long in submitting both their draft and final language for a constitutional amendment to abolish property taxes and tax retail transactions that the deadline for the Attorney General to produce the legally necessary title and explanation for the measure would come after the November 3 deadline for submitting final paperwork to the Secretary of State, meaning the sponsors would not get to launch their initiative petition drive, and their proposal was dead before they could take it to the streets.
But yesterday, A.G. Jackley did Team Mueller a favor. Instead of taking the full ten days allowed by law to consider public comment on his draft title and explanation and make any revisions, Jackley took just four days from the end of the public comment period on October 27 to post his final title and explanation, which the sponsors must print on their petitions and circulator handouts.
And out of 229 public comments, how many did Marty do anything about? Two: mine and Nathan Sanderson’s.
I sent Attorney General Jackley corrections to the grammatical errors in the first paragraph of his explanation: six incorrectly used semicolons and one incorrect verb. The Attorney General fixed all of those errors. He even appears to have dug into this blog’s comment section and taken my advice to add em dashes for optimal clarity:
| First two sentences of Jackley’s original draft, posted 2025.10.17; errors in red. | Jackley’s revised sentences, posted 2025.10.31; changes from original in bold green. |
| Currently, all real property, like land; homes; rental properties; and commercial buildings, are taxed according to a formula set by state law that accounts for the value of the property and its use. Those taxes are collected by the county treasurers and distributed to the counties; cities and towns; school districts; and other political districts, like road or drainage districts, in the county. | Currently, all real property—like land, homes, rental properties, and commercial buildings—is taxed according to a formula set by state law that accounts for the value of the property and its use. Those taxes are collected by the county treasurers and distributed to the counties, cities and towns, school districts, and other political districts—like road or drainage districts—in the county. |
The only other change Jackley made appears to be related to a suggestion from South Dakota Retailers Association honcho Nathan Sanderson Sanderson recommended adding a phrase explaining that the Legislature would create “a mechanism for determining how many dollars each local entity will receive.” In seeming response, at the end of his third paragraph, Jackley changed his last sentence from “The legislature must also create a system for retailers to collect and submit the assessed taxes” to “The Legislature must also create systems to collect and submit assessed taxes and distribute the tax moneys.”
Sanderson suggested numerous other language changes, including replacing “repeal this property tax scheme” with “repeal this property tax structure,” since, says Sanderson, “scheme” has a negative connotation. I appreciate Sanderson’s close reading, but Jackley let stand the subtle whiff of critique slapped on the current tax system that the amendment would overthrow (third wow—another favor for Team Mueller?!). Jackley also took no action on Sanderson’s other suggested revisions.
Only a handful of other commenters addressed gaps and possible revisions of the Attorney General’s language.
Jill White of Lincoln County appears to have interpreted the proposal as a $1.50 tax on real estate sales and asked the Attorney General for “more clarification”.
Robert Mammenga asked the Attorney General to “include an example for representative South Dakotans to compare their tax burden” and “include an analysis of the amount of taxes the proposal would generate as compared to the existing tax scheme”. The Attorney General’s legal mandate to “educate[…] the voters on the purpose and effect of the initiated amendment” could include an explanation of effects on taxpayers and revenue, but the five words Jackley added for Sanderson put his text right at the legal limit of 200 words. Jackley evidently saw nothing he could cut from his text to make room for any fiscal analysis and thus did not act on Mammenga’s recommendation. [But the Legislative Research Council’s fiscal note projects a net loss to local governments of $850.3 million—more on that in a separate post!]
Pennington County Treasurer Annette Brant asks the Attorney General to really break his work limit by answering these questions:
How will this get implemented as a start off program?
What happens to those who are currently delinquent? (some may be in the midst of tax deed
proceedings)
What happens to third party certificate holders?
Will it include special assessment for municipalities too?
How and when will the counties get their money?
How will the budgeting processes work for the individual counties? [Annette Brant, Pennington County Treasurer, email to Attorney General Marty Jackley submitted as public comment on draft title and explanation, 2025.10.22 09:16:27]
James Jacobson of Sioux Falls asked for a definition of “retail transaction”:
Is it limited to the purchases of goods, such as food, clothing, appliances, automobiles, etc. or does it include other commercial transactions subject to sales tax, such as professional services? Is there a definition of “retail transaction” somewhere in state statute, administrative law, or legal precedent, or will this be open to interpretation by the legislature or courts? [James Jacobson, email to Attorney General Marty Jackley submitted as public comment on draft title and explanation, 2025.10.18 07:02:46]
Good questions, Mr. Jacobson! The proposed amendment and current South Dakota law do not define “retail transaction”. Rather than squeeze in a definition of his own, Jackley lets Jacobson’s questions rest under his final line, unchanged from the draft, “This Amendment will need legislative or judicial clarification.”
Leanne Olson and Linda Bufford asked if any loopholes would allow property tax to come back. Jackley does not revise his explanation to address this concern, but the language and effect of the amendment are clear: the constitution would no longer allow the Legislature to authorize local governments to tax property. There is no loophole; pass this amendment, and the only way to bring property tax back would be to amend the constitution again to undo the Mueller amendment.
Anna Mueller (writing under a from line of “Alyssa Mueller” simply says the A.G.’s language is “great”.
The sponsors of the initiative to repeal property tax and impose a retail transaction tax endorsed Jackley’s draft title and explanation as issued. Amendment sponsors Mike Mueller and Julie Frye-Mueller responded almost immediately to Jackley’s draft explanation on Friday, October 17, writing that the draft “succinctly explains” and “captured both the intent and spirit” of their amendment. Amendment sponsor Matt Smith concurred on Thursday, October 23 at 11:26 said “I appreciate the work you and your team did. I believe you encapsulated the intention of this constitutional amendment to the heart of it.”
Then Smith followed up with this request at 14:54 Thursday:
I am respectfully requesting you to please post the final title and explanation for this Initiated
Constitutional Amendment to repeal real property taxes and replace them with a “retail
transaction” tax, on or before the end of business, Wednesday, October 29.Thank you for your continued service to the people of South Dakota.
Respectfully… [Matt Smith, email to Attorney General Marty Jackley submitted as public comment on draft title and explanation, 2025.10.23 14:54:57]
Supporters of the amendment then flooded Jackley’s inbox with 178 identical messages, all but one with the same subject line—”I support the constitutional amendment to repeal real property taxes.”—all sent after Smith’s message, from Thursday afternoon through Monday evening. These cut-and-pasted messages from 175 individuals (MeLisa Elijah of Arlington sent the same message twice, and Lori Gjording of Custer hit Send four times in 25 minutes on Friday night) constituted 78% of the 229 public comments submitted. Repeaters of Smith’s expedited posting request included rightwing radicals like election conspiracists Rick and Gretchen Weible of Elkton, Neal Tapio backer Dave Assman of Mission, and anti-environmental paranoiac Lynette Auch of Lesterville. Also declaring their support of the amendment and urging Jackley’s fast action were rookie Representative Heather Baxter (R-34/Rapid City) and chairman of the notoriously anti-initiative South Dakota Republican Party Jim Eschenbaum of Miller.
These comments are, of course, inappropriate and irrelevant to this public comment period, which was intended to inform the Attorney General’s choice of words in his title and explanation, not pressure him to post those words faster. Similarly irrelevant to this statutory process are the numerous comments the A.G. received from citizens expressing support for or opposition to the proposed amendment.
The effort to spam Jackley’s inbox with calls for fast publication indicates that the rightwingers read this blog, understand the time crunch their dilly-dallying created, and are serious about launching a petition drive. Coming originally from Smith, the campaign also suggests that the sponsors figured they would need five days to get their papers in order and submit them to the Secretary of State by 5 p.m. Monday. Jackley has given them three days.
I am pleased the Attorney General has made the explanation of this ballot measure grammatically correct. I remain frustrated this public-comment process continues to be misunderstood, misused, and mostly irrelevant. Only two of the 229 comments in this round had any impact on the text that will appear on the initiative petition, handouts, and ballot, and maybe only a dozen focused on the A.G.’s language. That’s comparable to past initiatives in which attorneys general have mostly ignored the public comment submitted and commenters strayed into debate on the merits of the initiatives and their backers.
If Smith and his 174 repeaters want faster titles and explanations, they should lobby next Session for repeal of 2021 Senate Bill 123, which created this dilatory and mostly useless public comment period. But first, they need to jump, on the favor Attorney General Jackley has done for them, prepare their petition, circulator handouts, notarized affidavit, and campaign finance statement of organization, and get those papers to the Secretary of State by 5 p.m. Monday!