S.D. panel delays changes code counsel sought

Capitol News Bureau
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PIERRE, S.D. (KELO) — The Legislature’s new code counsel wanted to significantly change some of the ways South Dakota handles publication of its state laws and the legislation from which they spring.

The Code Commission instead wants him to take some time and gather more information from stakeholders, including lawyers whose duties include following and enforcing those laws.

Code counsel Wenzel Cummings began his new role this year. He prepared a memo the commission considered at its meeting Wednesday.

One of the areas Cummings wants the Legislature to consider is how to handle initiated measures that would change state laws through statewide votes. State law requires ballot measures be submitted one year before the election. His concern is the Legislature could amend or repeal the existing law after the initiated measure was approved for the ballot.

Commission member Tom Lee of Pierre said moving forward would be “premature” without taking the public’s pulse. Lee also said it would be worth checking lawyers’ opinions through a notice in the State Bar newsletter. Lee said he wanted to avoid accusations of “back office” dealing.

Senator Art Rusch, a Vermillion Republican who’s a retired circuit judge and a former state’s attorney, said he would welcome getting lawyers’ input first.

The commission agreed with Cummings on his plan for dealing with legislation that lists many legal findings of fact. His suggestion was that the findings remain part of the session law that is published but wouldn’t be part of the published code itself.

Cummings also wanted what he described as “a seismic shift” in the Legislative Research Council’s approach to writing bills for lawmakers. He suggested deleting a specific sentence from the LRC drafting manual that called for sections of proposed law to be short.

The commission disagreed. Chairwoman Maggie Gillespie, a former legislator who now is a lawyer at the Alcester firm of Gubbrud, Haugland and Gillespie, said the commission wasn’t ready for the shift away from short sections.

“What I’m hearing is this commission isn’t ready to make a change yet,” Gillespie said. She added, “This would be a big change in policy, it sounds.”

Cummings said he recently received a request from a member of Governor Kristi Noem’s staff asking whether the state legal code could include references to laws that had court challenges pending. He said the specific example was the riot-boosting law that a federal judge has set aside.

The commission consensus was that he look at other states to see how they handle those situations. The South Dakota Legislature’s website doesn’t have a disclaimer.

“I think that works,” Cummings said.

“We can’t be the first state that’s faced a situation like this,” Gillespie said. “The simpler the better.”

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