STATE OF SOUTH DAKOTA

IN CIRCUIT COURT

COUNTY OF HUGHES

SIXTH JUDICIAL CIRCUIT

R. BLAKE CURD, M.D., DEB PETERS,

DEB SOHOLT, JIM STALZER, CAROL
STALZER, MARK WILLADSEN, JIM
BOLIN, GARY CAMMACK, JUSTIN
CRONIN, BOB EWING, BROCK
GREENFIELD, LANA GREENFIELD,
TERRI HAVERLY, PHIL JENSEN, RYAN
MAHER, AL NOVSTRUP, ERNIE OTTEN,
BETTY OTTEN, LARRY TIDEMANN,
JIM WHITE, JOHN WIIK, DAVID
ANDERSON, TIMOTHY JOHNS,
G. MARK MICKELSON, KENT
PETERSON, CINDY ELFRITS
PETERSON, LEE QUALM, AND SOUTH
DAKOTA FAMILY HERITAGE ALLIANCE
ACTION, INC.,
Plaintiffs,
ORDER ON SEVERABILITY
v.
THE STATE OF SOUTH DAKOTA and
MARTY JACKLEY, in his official capacity
As Attorney General,
Defendants.

Having considered the briefs and arguments of the parties at three stages (pre-trial briefs;
hearing on injunction; post-trial briefs on severability) the Court now makes this ruling
upon whether various sections of I.M.22 may be successfully severed from those portions
found invalid in the Courts bench ruling.
1. The court has previously ruled that the Ethics Commission, the Democracy
Credits, and the appropriation therefor, all violate various provisions of the South
Dakota constitution. The court will not review the same here; the matter was
discussed and ruled upon in great detail at hearing. The transcript of that hearing
will serve as a record of the courts decision upon the injunction.

2. The nature of injunctive action and the immediate impact of various provisions,
combined with the impending legislative session, all suggest that the court rule
promptly, which it did at hearing. However, the court did not at that time
expressly rule upon severability. The Defendants and amici argue for the
severability of numerous campaign finance limits and reporting requirements,
inter alia, and this decision will rule upon those contentions.
3. The parties and amici all agree upon the basic criteria by which this court should
decide severability. First, can the remaining valid provisions function effectively
without the invalid portions? Secondly, would the voters have intended to pass the
remaining sections without the invalid ones? SDEA / NEA v. Barnett, 582
N.W.2d386, 394 (SD 1998); Dakota Systems, Inc., v. Viken, 2005 SD 27 at 20,
694 N.W.2d 23, 32.
4. In this case, the court has stricken and will continue to hold that all provisions
relating to an Ethics Commission, and any appropriation therefor, are stricken as
unconstitutionally constructed and funded. That ruling removes all language
concerning Democracy Credits, enforcement language for the Commission, etc.
This means that Sections 32 through 63, fully half of the entire ballot measure,
have already been ruled unconstitutional.
5. The court finds that I.M. 22 was presented to the voters as a self-contained,
comprehensive package of reform.
6. The voters believed that they would get an Ethics Commission to oversee all of
the changes set forth elsewhere in the Act.
7. The voters believed that they had appropriated substantial investigation and
enforcement monies, to give that Commission the muscle to enforce all of the
changes in campaign finance and reporting law, found in the first 29 sections of
the Act.
8. When voting, in part, for public funding of campaigns, one must assume that the
voters saw that public funding as a way to lessen the influence of non-democracy
credit or private sector funds flowing into campaigns. In other words, as the
voters tightened money from the private sector, via donation limits found in the
first 29 sections of the Act, they also created funding from the public sector, in
Sections 32-68. This suggests once again that the entire scheme was one
packageone comprehensive way to get private money out, and public money in,
to campaigns. Under the act, candidates would be steered away from private
funding and made dependent upon public funding. Yet that appropriation was
unconstitutional under Art. XII Section 2 and other sections. And that public
funding was to be handed out by the Ethics Commission, which no longer exists
due to structural constitutional problems discussed at hearing.

9. The voters agreed to make the Commission independent of the rest of state
government an independent commission to prevent corruption and its
appearance, to protect the integrity of the democratic process, to ensure that state
ethics laws are not violated, and to administer the democracy credit fund and
Program. Section 32, I.M.22. Thus, the voters expressed a distrust of all existing
state offices to enforce all of the new duties and prohibitions set forth in the first
29 sections of the Act. The draftsmen might well have chosen to implement new,
lower donation limits and tighter reporting requirements as separate proposals,
and those would likely have fit into existing statutes. However, the draftsmen
chose to market all of these under the auspices of a new sheriff in town, ie, the
Ethics Commission.
10. The voters intended that the Ethics Commission police all of the campaign
finance limits and reporting requirements set forth in the first 29 sections of the
Act. However, since the Commission violates the Constitution in the manner in
which it was created, and depends on an unconstitutional appropriation, one must
wonder whether the voters really want those who are to be more closely regulated
by the Act, to also be the police for enforcement of that Act. Section 2 expressly
states that today, that system does not properly prevent corruption or its
appearance and is weakened by.inadequate enforcement of the law intended to
address these problems. If that system does not properly prevent corruption or
its appearance as stated in Section 2, then to leave the first 29 sections of the Act
in place would be to put the proverbial foxesan allegedly corrupt system in
charge of policing themselves. This does not appear to be what voters intended.
11. The voters were presented with a title which suggested that the various provisions
were offered as a package. The draftsmen chose to incorporate all these changes
in one self-contained package, rather than as separate and discrete ballot
offerings. (The court is not ruling on the one subject objection of the Plaintiffs,
but merely noting the way the measure was presented to the voters, as part of the
assessment of whether some provisions are separable.)
12. The Commission and the funding were the vehicles designed to enforce and
eventually even rewrite all of the new money limits and reporting requirements.
Without the commission and funding, I.M.22 is a horse without a rider. The court
is unable to say the voters would so direct.
13. Ironically, had the draftsmen of IM 22 not chosen to incorporate all of the many
topics into one ballot measure, many of them would likely pass constitutional
scrutiny. The voters can lower campaign donation limits (if done in ways which
do not implicate free speech; right of redress; equal protection; etc.) and can
strengthen reporting requirements. But here the draftsmen offered the voters the
tools and methodology for carrying out all of those provisions, and those tools
were unconstitutional.

14. Similarly, had the proponents of I.M.22 offered and passed the measure as a
constitutional amendment, this would be an entirely different discussion. Then the
discussion would not be about legality under the state constitution, or severability,
but only of interpretation and reading the new constitutional provisions in
harmony with existing provisions. Having chosen to offer a comprehensive and
coordinated package by initiative rather than constitutional amendment, the
measure became at risk both for constitutional objections, and for severability
problems.
15. The court believes there are substantial and unintended consequences with the
reach and breadth of Section 31, and quite likely constitutional defects such as
right of redress. (These constitutional concerns are not regarding gifts as they are
traditionally thought of, such as honorariums, food, beverages, cash, and the like.
Section 31 read literally would disqualify virtually countless citizens and anyone
in their families from serving in the citizen Legislature.) However, since the Act
is not severable and the court has already found the enforcement arm and its
funding to be unconstitutional, it is not necessary to reach additional challenges to
the measure.
16. In holding that the Act was adopted by the voters as one comprehensive package,
the court does not mean to suggest that it disagrees with the goals and intent of the
Act. It seems obvious that elected officials should not be able to convert political
funds to personal use, and this court in a different hat brought two different bills,
in two legislative sessions, to prohibit elected officials or candidates from
converting political money to personal money. American society seems uniformly
convinced that there should be limits on gifts to elected officials. Transparency
should always be the goal of campaign finance. This courtin a different hat
has been involved in active enforcement of Article III Section 12 (prohibiting
legislators from having a direct or indirect interest in state contracts), as against
popular legislative leaders. One example is found at Pitts v. Larson, 638 N.W.2d
254, 2001 SD 151; in other cases legislators were convinced by this author to
drop state contracts or grants, without going to a lawsuit. Thus, in the courts view
many of the goals of I.M.22 were commendable, but good intent is not how
constitutionality is judged.
17. Our Supreme Court has stated in several cases that good motive and intent of a
measure, is not relevant to a constitutional analysis. See Pitts, supra; Bandy v.
Mickelson, 73 SD 485 (1950); Independent Community Bankers v. Meierhenry,
346 N.W. 2d 737; State v Nuss, 79 SD 522 (1962). The court is not allowed to
look at motives or wisdom of the act; only its constitutionality. While I.M.22 is
all about good intent, it lacks careful constitutional draftsmanship.
18. The measure was sold as a package, with the Ethics Commission as the central
nervous system. The Commission was to prevent corruptionprotect integrity
of the democratic process, to ensure that state ethics laws are not violated, and to
administer the democracy credit fund Under Section 38, it was to employ staff

to carry out its duties. Under 39, it had primary responsibility for the impartial,
effective administration of this Act, including a host of duties such as public
awareness and information, management and distribution of millions of dollars,
issuing recommendations to public agencies to minimize corruption; audits of all
records required under the act including those required by Sections 1-29; conduct
independent (privately or in executive session) investigations for violations; file
lawsuits in its own name to enforce the law and to impose monetary penalties;
subpoena documents; issue advisory opinions; etc. In other words, the
Commission had primary responsibility for everything found in the first 29
sections of the Act.
19. Additionally, the Commission was given the power to rewrite statutes by way of
rulemaking, under Section 40. This authority to rewrite statutes, covered virtually
all of the first 29 sections of the Act, because Section 40 gave the Commission the
power to regulate the procedure by which the commission reviews all statements
and records required to be filed under campaign finance and lobbying law. The
first 29 sections of the act, of course, are all about campaign finance. What is
more, Section 40(2) gave the Commission a sweeping power the rules may be
adopted to regulatethe manner in which the commission fulfills its investigatory
and enforcement duties. Under Section 32, the power of the Commission was to
ensure that state ethics laws are not violated. Thus all campaign finance law /
ethics lawsincluding the various provisions set forth in Sections 1-29 of the
Act, would now be within the jurisdiction of the Commission. As such, the court
is unable to find that the voters would have supported individual sections without
the enforcement tools to get the job done, particularly where the Act itself,
adopted by the voters, expresses a distrust (Section 2 inadequate enforcement)
of existing enforcement tools.
20. The court finds that most, and perhaps all of Sections 1-29 do meet the first test of
severability .that they could stand alone and be effective, even without the
Commission. However, in both Sections 2 and 32, which must be read together,
the voters expressed the notion that they do not trust enforcement without the
Commission, and therefore the second test of severability is not met.
21. Circuit judges do not decide the ultimate outcome in such contests; the matter will
inevitably be decided by higher authorities, whether they be Legislators, the
Governor, the Supreme Court, or the voters. This ruling simply provides the
litigants with a vehicle to get them to the people who do make the ultimate
decisions.
22. Initiated Measure 22 is enjoined until further action of higher authorities.

Dated at Pierre, South Dakota this 21st day of December, 2016.

Mark Barnett, 6th Judicial Circuit