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trGISLATIJRE
Lacrslnrrvr Rnssancs CouNclr-

June 3, 2019

Mr. Paul Thronson and Mr. Nick Zachariasen RECEVED


South Dakota Community Action
JUN 0 3 2019
7301S. Valencia Drive
Sioux Falls, SD 57108 S.D. SEC. OFSIAIE

Dear Mr. Thronson and Mr. Zachariasen:

This office is required to review each initiated measure to determine whether it is written in a clear and coherent
manner in the style and form of other legislation and worded so that the effect of the measure is not misleading or
likely to cause confusion among voters in accordance with SDCL 12-13-24. Further, in accordance with SDCL 12-13-
25, this office is required to provide written comments to assist the measure's sponsor in complying
with SDCL 12-
1'3-24, including assistance regarding the substantive content of the measure in order to minimize
any conflict with
existing law and ensure the measure's effective administration. You are under no obligation to accept any of
the
suggestions contained in this letter, but please keep in mind the legal standards established in SDCL I2-I3-24
and
t2-t3-25.
Attached is a copy of your proposed initiated measure regarding the showing of cause for the termination
of
employment with our suggested changes in overstrikes and underscores. The title has been removed since
the
attorney general will provide the title as required by SDCL t2-13-25.1. The catch line to the section
has also been
removed as that will be added by the code counsel if the measure is approved. lf you have any questions
regarding
our suggested changes, please feel free to contact us.

It has been determined during this review that this proposed initiated measure may have an impact
on revenues,
expenditures, or fiscal liability of the state and its agencies and politicalsubdivisions. please provide
the Legislative
Research Council a copy of the initiated measure as submitted in final form to the Attorney
General, so we can
develop any fiscal note required by SDCL 2-9-30.

This letter constitutes neither an endorsement of your initiated measure nor a guarantee
of its sufficiency. lt does
constitute fulfillment of your responsibility pursuant to SDCL 12-L3-25 to submit your draft
to this office for review
and comment. lf you proceed with your initiated measure, please take care to ensure
that your statements or
advertising do not imply that this office endorses or approves your proposar.

Director

JH:DO:ct
Enclosu re

CC: The Honorable Steve Barnett, Secretary of State


The Honorable Jason Ravnsborg, Attorney General
BE IT ENACTED BY THE PEOPLE OF THE STATE OF SOUTH DAKOTA:

section 1. That 5 60-4 be amended to add a NEW sEcroN to read:

Upon discharge of an employee, the employer shall provide an accurate written statement
to that employee of all factors forming the basis of the discharge. This statement shall specifically
note the predominant deciding factor if one exists. The statement may omit factors the disclosure
of which the employer has a good faith belief may endanger the personal privacy or safety of ene
er mere individuals anv individual. The Department of Labor and Reguiation shall promulgate
regu+a+iens rules. pursuant to chapter 1-26. for enforcement of this section.
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| *'" po**1
5oo Easl C-'nprrol Avs,r.rtrE, PIERRE, SD,sT-5ol l 6o5-773-32s r l sDt-Ecrst-*rruRE.cov

June 3, 2019

Mr. Paul Thronson and Mr. Nick Zachariasen RECEfVED


South Dakota Community Action
7301S. Valencia Drive JUN 0 3 20tg
Sioux Falls, SD 57108 s.D. sEc.0FsnE
Dear Mr. Thronson and Mr. Zachariasen:

This office is required to review each initiated measure to determine whether it is written in a clear and coherent
manner in the style and form of other legislation and worded so that the effect of the measure is not misleading or
likely to cause confusion among voters in accordance with SDCL 12-13-24. Further, in accordance with SDCL 12-13-
to provide written comments to assist the measure's sponsor in complying with SDCL i.2-
25, this office is required
13-24, including assistance regarding the substantive content of the measure in order to minimize any conflict with
existing law and ensure the measure's effective administration. You are under no obligation to accept any of the
suggestions contained in this letter, but please keep in mind the legal standards established in SDCL 12-1"3-24 and
t2-L3-25.

Attached is a copy of your proposed initiated measure regarding the expansion of Medicaid expansion in the state
with our suggested changes in overstrikes and underscores. You may also consider limiting the expansion to those
under the age of sixty-five, due to those sixty-five and over being eligible for Medicare. lf you have any questions
regarding our suggested changes, please feel free to contact us.

It has been determined during this review that this proposed initiated measure may have an impact on revenues,
expenditures, orfiscal liability of the state and its agencies and politicalsubdivisions. Please provide the Legislative
Research Council a copy of the initiated measure as submitted in final form to the Attorney General, so we can
develop any fiscal note required by SDCL 2-9-30.

This letter constitutes neither an endorsement of your initiated measure nor a guarantee of its sufficiency. lt does
constitute fulfillment of your responsibility pursuant to SDCL 12-1.3-25 to submit your draft to this office for review
and comment. lf you proceed with your initiated measure, please take care to ensure that your statements or
advertising do not imply that this office endorses or approves your proposal.

Jason Hancock
D i recto r

JH:DO:ct

E n closu re
CC: The Honorable Steve Barnett, Secretary of State
The Honorable Jason Ravnsborg, Attorney General
BE IT ENACTED BY THE PEOPLE OF SOUTH DAKOTA:

Section l. That chapter 28^6 be amended by adding thereto a NEW SECTION to read:

The nsiniraunr income standard the Department of Social Services rnay impose on a person
for eligibility for the medical assistance program established and eperated administered pursuant
to $ 28-6-1 and in accordance with Title XIX of the federal Social Security Act, as amended to
January l, +mW, is at and under one hundred thirty-eight percent of the federal poverty
level established by the Patient Protection and Affordable Care Act, Pub. L. No. I I l-148, 124 Stat.
119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010. Pub. L,
No. 1 I l-152, 124 Stat.l029.
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-5oo Eesl CerrroL Ave,rut, PlsRRe, SD 575ot | 6a5-773-32.5r I sDLrjGrsLAl'uRE.cov


LEGISLATURE
LpcrsrarvE Cour{clr
RESEARCH

June 3, 2019

Mr. Paul Thronson and Mr. Nick Zachariasen RECEIVED


South Dakota Community Action
JUN 0 3 208
7301 S. Valencia Drive
Sioux Falls, SD 57108 s.D. SEC.0FSmE

Dear Mr. Thronson and Mr. Zachariasen:

This office is required to review each initiated measure to determine whether it is written in a clear and coherent
manner in the style and form of other legislation and worded so that the effect of the measure is not misleading or
likefy to cause confusion among voters in accordance with SDCL 12-13-24. Further, in accordance with SDCL 12-13-25,
this office is required to provide written comments to assist the measure's sponsor in complying with SDCL 12-13-24,
including assistance regarding the substantive content of the measure in order to minimize any conflict with existing
law and ensure the measure's effective administration. You are under no obligation to accept any of the suggestions
contained in this letter, but please keep in mind the legal standards established in SDCL 1,2-13-24 and 12-i-3-25.

Attachedis a copy of your proposed initiated measure regarding an increase in the minimum wage with our suggested
changes. The title has been removed since the attorney general will provide the title as required by SDCL t2-L3-25.i,.
The catch lines to the sections have been removed since they are not part of the code. We have also added the repeal
of SDCL 60-1'I-4.1regarding the opportunity wage. This section is no longer necessary with your proposed change in
SDCL 60-11-3. Also, the last section has been removed, as it appears to create an effective date prior to when 2020
initiated measures go into effect on July 1, 202L,under the provisions of SDCL 2-!-12, which may create confusion. lf
you have any questions regarding our suggested changes, please feel free to contact us.

It has been determined during this review that this proposed initiated measure may have an impact on revenues,
expenditures, or fiscal liability of the state and its agencies and political subdivisions. Please provide the Legislative
Research Council a copy of the initiated measure as submitted in final form to the Attorney General, so we can develop
any fiscal note required by SDCL 2-9-30.

This letter constitutes neither an endorsement of your initiated measure nor a guarantee of its sufficiency. lt does
constitute fulfillment of your responsibility pursuant to SDCL 1,2-13-25 to submit your draft to this office for review and
comment. lf you proceed with your initiated measure, please take care to ensure that your statements or advertising
do not imply that this office endorses or approves your proposal.

Hancock
Director

JH:DO:ct

Enclosure
CC: The Honorable Steve Barnett, Secretary of State
The Honorable Jason Ravnsborg, Attorney General
BE IT ENACTED BY THE PEOPLE OF SOUTH DAKOTA:

Section l. That $ 60-11-3 be amended to read:

60-11-3. Every employer shall pay to each employee wages at arate of not less than eight
@fifteendollarsanhour.ViolationofthissectionisaClass2misdemeanor.

(l) The establislrrent;earnp; er eenterdee' ret eperate for mere than seven menths irrany
earcnear-year,er
(2) During the preeeding ealendar year the average reeeiptsef the establislrnent; earnp; er eenter
ter any sX mentns ef tlre

Section 2. That $ 60-l l-3.1 be amended to read:

L Any employer of a tipped employee shall pay a cash wage of not less than fifty
60- I 1-3.
percent of the minimum wage provided by $ 60-1 1-3 if the employer claims a tip credit against
the employer's minimum wage obligation. If an employee's tips combined with the employer's cash
wage of not less than fifty percent of the minimum wage provided by $ 60-11-3 do not equal the
minimum wage, the employer shall make up the difference as additional wages for each regular
pay period of the employer. A tipped employee is one engaged in an occupation in which the
employee customarily and regularly receives more than thirty-five dollars a month in tips or other
considerations.

erga$ized earnp; er a religieus er nenprefit edueatienal eorferenee eenter if ene ef the follewing
appb+

(1) The establislrnent; earnp; er eenter dees net eperate fer rere than seven menths-in any
eabnearyeafer
(2) Dnring the preeeding ealerdar year; the average reeeipts ef the establislrnent; earrF; or eenter
fer any six menths ef *re ea

Section 3. That $ 60-l l-3.2be repealed.

60 I I 3,2, Beginning Janury l;2016; ard again en Janury I ef eaeh year thereafter; the

i
rr,

Section 4. That $ 60- I 1-4. I be repealed.

+996.
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5oo EesT C-'AprroL.r\vENUE, PIERRE, SD 57-5or | 6()-5-773-3:-5r I sDLEctsLAruRE.Gov


I--tr,GISLATURE
Lpctslerwn Rnsenncs CouNcrr-

June 3, 2019

Mr. Paul Thronson and Mr. Nick Zachariasen RECETVED


South Dakota Community Action
7301S. Valencia Drive JUN 0 3 20f9
Sioux Falls, SD 57108 S.D. SEC. OFSIAIE

Dear Mr. Thronson and Mr. Zachariasen:

This office is required to review each initiated measure to determine whether it is written in a clear and coherent
manner in the style and form of other legislation and worded so that the effect of the measure is not misleading or
likely to cause confusion among voters in accordance with SDCL 12-13-24. Further, in accordance with SDCL 12-13-
to provide written comments to assist the measure's sponsor in complying with SDCL 12-
25, this office is required
13-24, including assistance regarding the substantive content of the measure in order to minimize any conflict with
existing law and ensure the measure's effective administration. You are under no obligation to accept any of the
suggestions contained in this letter, but please keep in mind the legal standards established in SDCL 12-13-24 and
t2-73-25.

Attached is a copy of your proposed initiated measure regarding the state procurement of internet, data, and
telecommunications services with our suggested changes in overstrikes and underscores. The title has been
removed since the attorney general will provide the title as required by SDCL t2-13-25.1.lf you have any questions
regarding our suggested changes, please feel free to contact us.

It has been determined during this review that this proposed initiated measure may have an impact on revenues,
expenditures, or fiscal liability of the state and its agencies and political subdivisions. Please provide the Legislative
Research Council a copy of the initiated measure as submitted in final form to the Attorney General, so we can
develop any fiscal note required by SDCL 2-9-30.

This letter constitutes neither an endorsement of your initiated measure nor a guarantee of its sufficiency. lt does
constitute fulfillment of your responsibility pursuant to SDCL 12-13-25 to submit your draft to this office for review
and comment. lf you proceed with your initiated measure, please take care to ensure that your statements or
advertising do not imply that this office endorses or approves your proposal.

JH:DO:ct

Enclosure
CC: The Honorable Steve Barnett, Secretary of State
The Honorable Jason Ravnsborg, Attorney General
BE IT ENACTED BY THE TEGISTATURE PEOPLE OF THE STATE OF SOUTH DAKOTA:

Section 1. That the code be amended by adding a NEW SECTION to read:

For the purposes of this Act, the term, telecommunications services, includes internet and data services.

Section 2.fhat the code be amended by adding a NEW SECTION to read:


To be awarded a contract with the state for the provision of telecommunications services, a service provider
shall publicly disclose to all of the provider's customers in the state, including the state itself, accurate information
regarding the network and transport management practices including cellular data and wireless broadband transport,
performance and commercial terms of the provider's broadband internet access services sufficient for consumers to
make informed choices regarding use of the services and for content, application, service, and device providers to
develop, market, and maintain internet offerings.

Section 3. That the code be amended by adding a NEW SECTION to read:

To receive a contract from the state for the provision of telecommunications services, a service provider may
not, with respect to any consumer in the state, including the state itself as a consumer:

(1) Block lawful content, applications, services, or nonharmful devices, subject to reasonable network
management that is disclosed to the consumer;
(2) Throttle, impair, degrade, or otherwise interfere with laMul internet traffic on the basis of internet content,
application, or service, or use of a nonharmful device, subject to reasonable network management that is
disclosed to the consumer,
(3) Engage in prioritization of network traffic, media content, or any other kind of data wnen+uen++ie*gzatien
isdene for monetary payment or other consideration;
(4) Unreasonably interfere with or unreasonably disadvantage end users' ability to select, access, and use
broadband internet access service or the lawful internet content, applications, services, or devices of their
choice; or
(5) Unreasonably interfere with or unreasonably disadvantage edge providers'ability to make laMul content,
applications, services, or devices available to end users.

Section 4. That the code be amended by adding a NEW SECTION to read:

TheBureauofAdministrationmaypromu|gaterules.pursuanttochapter1-26,@
as deemed necessary and appropriate to carry out the provisions of this Act and to monitor the Act's enforcement.

Section 5. That the code be amended by adding a NEW SECTION to read:

Each contracting department or agency that procures telecommunications services shall cooperate with the
Bureau of Administration in implementing this Act and provide information and assistance as the bureau requires in the
performance of the bureau's functions pursuant to this Act. Agencies shall receive approval from the Bureau of
Administration before procuring internet services, including cellular data or wireless broadband internet services.
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-5ooEaslC)rpllolAvsNur,,Prrnru,SD57.5or l6o-5-773-j,25r lsDlcclst-AruRE.cov


I.-trGISLAIURE
LEclslnnvE CouNcrI-
RESEARcT-I

June 3, 2019

Mr. Paul Thronson and Mr. Nick Zachariasen RECE,YED


South Dakota Community Action
7301 S. Valencia Drive
^1ul'
oi ;,'ll
o.u.,SEC.OFSnfE
Sioux Falls, SD 57108

Dear Mr. Thronson and Mr. Zachariasen:

This office is required to review each initiated measure to determine whether it is written in a clear and coherent
manner in the style and form of other legislation and worded so that the effect of the measure is not misleading or
likely to cause confusion among voters in accordance with SDCL 12-13-24. Further, in accordance with SDCL 12-13-
25, this office is required to provide written comments to assist the measure's sponsor in complying with SDCL 12-
'J'3-24, including assistance regarding the substantive content of the measure in order to minimize any conflict with
existing law and ensure the measure's effective administration. You are under no obligation to accept any of the
suggestions contained in this letter. But please keep in mind the legal standards established in SDCL 12-13-24 and
1.2-1.3-25.

This initiative proposes a resolution that purports to "apply to the United States Congress to call a convention for
the exclusive purpose of proposing an amendment to the Constitution of the United States of America that will
restore free and fair elections as described [within the language of the resolution]." This proposed resolution raises
questions that would make the measure subject to scrutiny under both the U.S. Constitution and the South Dakota
Constitution.

The process for amending the U.S. Constitution is controlled by federal law. Under Article V of the U.S. Constitution,
the Congress "shall call a Convention for proposing Amendments" to the Constitution "on the Application of the
Legislatures of two thirds of the several States." The term "Legislatures" for purposes of Article V does not include
voters acting through an initiated measure. ln 1922, the Supreme Court of the United States addressed the
definition of the term directly:
What did the framers of the Constitution mean in requiring ratification by "legislatures"? That was not a
term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still
means for the purpose of interpretation. A Legislature was then the representative body which made the
laws of the people . . .. There can be no question that the framers of the Constitution clearly understood
a nd ca refully used the terms in which that instrument referred to the action of the Legislatures of the states.

When they intended that direct action by the people should be had they were no less accurate in the use
of apt phraseology to carry out such purpose.l

Even if Article V of the U.S. Constitution were to be interpreted to allowforvoter-initiated resolutions that callfor
a constitutional convention, the South Dakota Constitution does not provide a process by which voters may propose
resolutions to be placed on the ballot. Article lll, section L of the South Dakota Constitution states that "the people
expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors
of the state." Although the term "measure" is undefined under both the state constitution and state statute. the

I Harvkc','. Smitl.r, 253 U.S. 221,227-8 (1922)


Mr. Thronson and Mr. Zachariasen
June 3, 2019
Page 2

context of the word's usage in the Constitution and the history of the Constitution's framing do not suggest that
the term includes resolutions. Instead, the language has always been interpreted by the South Dakota Supreme
Court only to include those measures that enact, amend, or repeal laws.2

Additionally, Article lll, section 1- requires specific language to be used for the enacting clause of voter-initiated
measures: "Be it enacted by the people of South Dakota." A resolution is an expression of "the sense, will, or action
of a deliberative assembly."3 lt is not an enactment of a law as suggested by the constitutionally required enacting
clause.

For all the reasons outlined above, the proposed resolution is likely subject to challenge as an unconstitutional
voter-initiated measu re.

Regarding the style and form of the proposed measure, the resolution lacks a title, which should be placed in the
body of the measure before the first "whereas" clause. We suggest the title should read: "A RESOLUTION, applying
to the United States Congress to call a convention for the exclusive purpose of proposing an amendment to the
United States Constitution that will restore free and fair elections."

In several sections, the resolution purports to speak on behalf of the Legislature, however this resolution is not a
product of the Legislature but of the people. This is likely to cause confusion among voters. Therefore, the language
of the resolution should speak on behalf of "the people of South Dakota," not on behalf of the Legislature.

This letter constitutes neither an endorsement of your initiated measure nor a guarantee of its sufficiency. lt does
constitute fulfillment of your responsibility pursuant to SDCL t2-73-25 to submit your draft to this office for review
and comment. lf you proceed with your initiated measure, please take care to ensure that your statements or
advertising do not imply that this office endorses or approves your proposal.

ason Hancock
Director

JH:DO:ct

Enclosure
CC: The Honorable Steve Barnett, Secretary ofState
The Honorable Jason Ravnsborg, Attorney General

2 Brendro v. Nelson, 720 N.\)7.2d 670 (S.D. 2006).


-fee
3 .fee BL.\cK's Lawr DrcrroNanv (104' ed.201.4), resolution.
WHEREAS, the framers of the United States Constitutionffiiea
intendedthattheUnitedStatesCongressffilerieashou1dbe''dependenton
the people alone" (James Madison, Federalist 52); and

WHEREAS, that dependency has evolved from a dependency on the people alone to a
dependency on powerful special interests, through campaigns or third-party groups, that has
created a fundamental imbalance in our representative democracy; and

WHEREAS, Americans across the political spectrum agree that elections in the United
States ef+me+iea should be free from the disproportional influence of special interests and fair
enough that any citizen can be elected into office; and

WHEREAS, the South Dakota Constitution states that


"governments are instituted among men, deriving their just powers from the consent of the
governed," and our "elections shall be free and equal" (Article VI, Seetiens sections I & 19); and

WHEREAS, Article V of the United States Constitution requires Congress to call a


convention for proposing amendments to the federal Constitution on the application of twothirds
ofthe legislatures ofthe several states; and

WHEREAS, the people of South Dakota Legisfaturc-p€+€eives perceive the need for an
atr€ndtren+s a convention in order to restore balance and integrity to our elections by proposing
an amendment to the federal Constitution that will permanently protect free and fair elections in
America by addressing, inter alia, issues raised by the decisions of the United States Supreme
Court in Citizens United v. Federal Election Commission{20}0), 130 S.Ct. 876 (.2010\ and related
cases and events, and desires that the said convention should be so limited: and

WHEREAS, the State of South Dakota desires that the delegates to said the convention
shall be comprised equally of individuals currently elected to state and local office, or be selected
by election, in each eongressienal congressional district for the purpose of serving as delegates,
though all individuals elected or appointed to federal office, now or in the past, be prohibited from
serving as delegates to the convention, and intends to retain the ability to restrict or expand the
power of its delegates within the limits expressed herein in this resolution; and

WHEREAS, the State of South Dakota intends that this be a continuing application
considered together with applications calling for a convention passed in the 2013-2014 Vermont
legislature as R454, the 2013-2014 California legislature as Resolution Chapter 77, the 98th
Illinois General Assembly as SJR 42,the2014-2015 NewJersey legislature as SCR !32,the2015-
2016 Rhode Island legislature as HR 7670 and SR 2589, and all other passed, pending, and future
applications until such time as two-thirds of the several states have applied for a convention for a
similar pu{pose and said convention is convened by Congress,;

NOW, THEREFORE, BE IT RESOLVED, that the people of the State of South Dakota
hereby
apply to the United States Congress to call a convention for the exclusive purpose of proposing an
amendment to the Unites States Constitution eS+he{Jnite4S+atesefAmeriea that will restore free
and fair elections as described h€rein in this resolution, as soon as two-thirds of the several states
have applied for a convention for a similar purpose; and

BE IT FURTHER RESOLVED, that the


@SecretaryofStatetransmitcopiesofthisresolutiontothePresidentof
the United States; the Vice President of the United States in his capacity as presiding officer of the
United States Senate, the Speaker of the United States House of Representatives, the Minority
Leader of the United States House of Representatives, the President Pro Tempore of the United
States Senate, to each Senator and Representative from South Dakota in the Congress of the United
States with the respectful request that the full and complete text of this resolution be printed in the
Congressional Record, to the presiding officers of each legislative body of each of the several
states, requesting the cooperation of the states in issuing an application compelling Congress to
call a convention for proposing amendments pursuant to Article V of the U.S. Constitution.