At the top of Section II of an initiated measure to legalize recreational marijuana posted on the South Dakota Secretary of State’s website – not even deep into the weeds of the initiative’s language – the text states marijuana use and possession would not be “unlawful under law of any subdivision.”
So what’s missing? The state’s attorney general Marty Jackley, and the Legislative Research Council – which releases studies on potential impact of laws – say the prepositional phrase “of the state.”
As written, the initiated measure only legalizes paraphernalia, according to officials.
Melissa Mentele, advocate with New Approach South Dakota and petition lead, disagrees.
“The state keeps trying to kick us and kick us,” she said.
To get on a ballot, initiated measures need 14,000 signatures a year out from the election – in this case, by November. Mentele says her group lacks the window of time to start over with new language. And, she says “we’re already close” to the threshold.
“This is a bill that has won recreation in three other states,” Mentele says, “It’s just one person’s perception of grammar versus another’s.”
The syntactical – and perhaps legal – discrepancy came to light when the prison impact statement showed paltry savings of $2 million over the next decade. In a Facebook video she posted in July and in a claim she repeated Tuesday, Mentele says she’d spoken to an attorney within the Legislative Research Council prior to the official release of the document who suggested a savings windfall of $42.5 million, given the state wouldn’t be locking up as many drug offenders.
“Someone helped them rewrite that statement,” she said, pointing blame on the Attorney General’s Office.
Earlier this year, Jackley released a summary of the initiative that read: “The measure makes it unlawful under the laws of a political subdivision.”
Mentele said at the time she didn’t take Jackley’s summary seriously, as he is running for governor and felt his statement was politicized. But when the Legislative Research Council took into account Jackley’s narrower interpretation, she was “incensed.” Her 2016 ballot initiative for medical marijuana was also tripped up when Secretary of State Shantel Krebs deemed too many signatures invalid, and Mentele says it’s a “gotcha” game.
Jesse Kelley, an attorney with the Marijuana Policy Project in Washington who consulted with Mentele on the initiated measure, says obstruction from states is common.
“In Massachusetts in 2016, they tried to fight us on the definition of the word ‘hash,’” Kelley said. “This happens all the time.”
The back story reads like a nightmare of a student trying to interpret an English teacher’s revisions suggestions.
When Mentele’s group, New Approach South Dakota, submitted initial ballot language in late 2016, the phrase “under South Dakota” was in the draft. In January, however, the Legislative Research Council sent Mentele’s group a number of editorial and style suggestions. Among them, at the top of Section II of the measure’s text, the council advocated changing “under South Dakota” to “the law of the state.”
It was a small change, and Mentele viewed this as redundant given the sentence ended with “or be a basis for seizure of assets under South Dakota law.”
“I thought it was stupid,” Mentele said in a phone interview on Tuesday. So she omitted the entire line, believing her intent would be clear.
“I wouldn’t do anything differently,” she said, although she noted she is not an attorney.
South Dakota is one of a few states with no access to recreational or medicinal marijuana. Mentele’s organization has vowed to fight on to reach the November deadline for petitions. A legislator could amend the language in the 2019 session if the measure becomes law. But Mentele said her organization might look to the courts instead.
“I can’t believe they’d turn this whole thing over because of one sentence,” she said.
Representatives from the Legislative Research Council did not respond to a request for comment.