2002 Pros & Cons and Attorney General Explanations

November 5th, 2002

General Election Ballot Question Pamphlet

Constitutional Amendment A

Title: An amendment to Article VI, Section 7 of the Constitution, relating to the rights of a criminal defendant.

Attorney General Explanation: The Constitution currently guarantees certain rights to a person accused of a crime. Amendment A would amend the Constitution to state that a criminal defendant may argue the merits, validity, and applicability of the law, including sentencing laws.

A vote "Yes" will change the Constitution.

A vote "No" will leave the Constitution as it is.

Pro -- Constitutional Amendment A

Laws are meant to promote harmony in society. When laws make sense, they do promote harmony.

Sometimes, though, a law or its application strikes a sour note. When someone is unjustly punished by our justice system, it does more damage than a thousand appropriate convictions and punishments can repair.

Legislators try to do good things when they make laws. Occasionally, however, even well-intended laws cause disasters for peaceful, honest people: an elderly man convicted of "cruelty to animals" after using his cane in defense against an attacking dog; parents convicted of "child pornography" after taking family photos of their toddler in the tub; a lady convicted under the "open container" law after collecting empty beer cans along the road to use in making novelty hats.

Verdicts like these create hardship, discord, and cynicism. Not harmony. Not justice.

For justice to be served, an accused person must be allowed to present a complete defense. If he's barred from arguing that applying the letter of the law will not make common sense, an unjust verdict can easily result. Such arguments are presently denied to accused persons.

Amendment A's critics have been implying South Dakota's citizen jurors and judges aren't bright enough to tell a good explanation from a bad one, and don't have enough common sense to deliver justice. Interestingly, these arrogant, unfounded slurs have come almost entirely from lawyers.

True, asking the legislature to improve a faulty law is an option--but only for those with time and money to burn. It's not much help to someone already being wrongly prosecuted. "A" will provide a common-sense remedy for those who need it most, when and where it counts.

In sum, Amendment A will reinforce our right as Americans to a fair trial. If ever accused of breaking a law that we feel is flawed, or wrongly applied, or carries too harsh a punishment, we should be able to say so in court. It just makes common sense.

Submitted by: Bob Newland, HC 89 Box 184-A, Hermosa, SD 57744. Bob Newland is a freelance writer, publisher, and photographer. Newland directed the petition drive which put Amendment A on the ballot.

Con -- Constitutional Amendment

The most fundamental principle of American justice is that our nation is governed by the rule of law, not the desires of one person or the whims of a few. Our personal liberty and private property rights remain secure only because we have laws that assure them.

Amendment A would erase those assurances and disrupt the stability on which we depend. It unmistakably and plainly says that a jury can ignore the Law – no matter what it provides, whom it protects, or how important it is to a civilized society. Amendment A establishes no standards. There is no assurance of fairness, no provision of due process, no guarantee of equality. A jury that chooses to ignore the law can do so without even giving a reason.

Amendment A would allow juries to be arbitrary, unreasonable, vindictive, mean spirited, ignorant, and unpatriotic. A jury could ignore treason . It could impose a trivial fine for murder. Arbitrarily, juries could decide at what age a child could consent to sex, which taxes a person had to pay, and when to excuse someone from selling a child alcohol or drugs.

Supporters of Amendment A refer to circumstances that do not exist. They claim the provision protects those convicted of "victimless crimes," and refer to "political crime cases," but fail to provide either a definition or an example. Amendment A proponents imply that no one can argue about the law until he has been found guilty of a crime, but that is simply false. Trial judges regularly hear legal arguments, and then decide whether a statute or regulation is lawful. This includes laws governing sentencing.

For over two hundred years, our justice system has succeeded by depending on checks and balances that ultimately respect the rule of law. Voters, their elected officials, and an independent judiciary assure us of fairness Amendment A should be defeated. It would disrupt that stability, abandon standards of fairness, and dismantle a system honored for centuries.

Submitted by: Robert B. Frieberg, PO Box 511, Beresford, SD 57004. Frieberg is an attorney who has been engaged in numerous public service activities and is a past president of the State Board of Education and of the State Bar of South Dakota.

November 5th, 2002 General Election Ballot Question Pamphlet

Constitutional Amendment B

Title: An amendment to Article III, Section 5 of the Constitution to clarify the responsibility of the Legislature to provide for its own apportionment.

Attorney General Explanation: The Constitution requires the Legislature to establish legislative districts every ten years. Voters from each legislative district elect one state senator and one or two state representatives to the South Dakota Legislature. Amendment B would require the Legislature to adopt a new plan, in a regular or special legislative session, if a court invalidates the districts established by the Legislature.

A vote "Yes" would change the Constitution.

A vote "No" would leave the Constitution as it is.

Pro -- Constitutional Amendment B

Every 10 years after the census is completed, the South Dakota Constitution requires the legislature to "redistrict" the state by providing legislative districts with as nearly equal population as is practicable. This process is known as "apportionment" and was recently accomplished in a special legislative session held in October, 2001. In advance of that process, the provision in the constitution that is the subject of this proposed amendment did not state what authority the South Dakota legislature has in the event a court invalidates the apportionment made by the legislature. This proposed constitutional amendment remedies this situation.

Simply put, in the event a federal or state court rules that the redistricting completed by the legislature violates an aspect of law, this constitutional amendment would allow the legislature to meet and redistrict in accordance with the applicable law or court order.

Under the United States and South Dakota Constitutions, apportionment is a right vested in the states and, specifically the legislatures of the states representing its citizens. It is only appropriate to clarify this constitutional provision to ensure that if such a court ruling were to occur, the legislature could act quickly to comply with the law and not slow down the election process.

This clarification of our constitution is necessary and I respectfully urge you to vote yes on Amendment B.

Submitted by: Representative Matthew Michels, Speaker Pro Tempore, 1213 Walnut, Yankton, SD 57078. Representative Matthew Michels represents District 18, Yankton County.

Con -- Constitutional Amendment B

Opponents to Amendment B did not submit a statement.

November 5th, 2002 General Election Ballot Question Pamphlet

Constitutional Amendment C

Title: An amendment to Article IV, Section 4 of the Constitution, extending the time allowed for the Governor's review of legislation passed by the Legislature.

Attorney General Explanation:

The Governor must veto legislation within five days of presentation while the Legislature is in session, and within fifteen days of presentation if presented within five days of adjournment or recess. Amendment C would alter these time periods by excluding weekends and holidays from the five-day presentation period, and would clarify when the fifteen-day time period is applicable.

A vote "Yes" will change the Constitution.

A vote "No" will leave the Constitution as it is.

Pro -- Constitutional Amendment C

This is a minor change to the Constitution that will allow future Governors additional time to review bills before vetoing or signing them into law. It will also give citizens more time to talk with the Governor about bills that could become law.

The Supreme Court ruled in 2000 and 2001 that the Governor has five days from the day of delivery of a bill to the Governor to sign a bill into law or veto it. The five days include weekends and holidays. The Court also ruled that when the Legislature takes a break during the legislative session, the Governor still has only five days to make a decision on delivered bills.

During the last twenty years, the number of bills that are presented to the Governor near the end of a legislative session has increased dramatically. On many days, bills are delivered in groups of twenty to forty bills a day. Therefore, as many as 200 bills can require action within a short period of time.

If approved by the voters, Amendment C:

1. will change the way the five days for consideration of bills are counted from five days in a row to five days not counting Saturdays, Sundays and holidays, and
2. will specify that when the Legislature takes a break during the legislative session that is longer than five days, the Governor will have fifteen days to consider any legislation delivered to him within five days of the beginning of that break.

These Constitutional changes will allow future Governors to have more time to review these bills that affect so many South Dakotans every year and more time to listen to the questions and concerns that citizens have about these bills. Please vote "Yes" on Amendment C.

Submitted by: Jim Soyer, Governor’s Office, 500 E. Capitol Ave., Pierre, SD 57501

Con -- Constitutional Amendment C

Opponents to Amendment C did not submit a statement.

November 5th, 2002 General Election Ballot Question Pamphlet

Initiated Measure 1

Title: An initiated measure adopting a law relating to industrial hemp (cannabis).

Attorney General Explanation:

Initiated Measure 1 proposes a law that would make it legal under state law, but not under federal law, for a person to plant, cultivate, harvest, possess, process, transport, sell or buy industrial hemp (cannabis) or any of its by-products with a tetrahydrocannabinol (THC) content of one percent or less.

A vote "Yes" would adopt the state law.

A vote "No" would leave state law as it is.