American News correspondent and columnist Bob Mercer is on leave due to a medical issue. His blog is on hiatus.
— Executive Editor J.J. Perry
American News correspondent and columnist Bob Mercer is on leave due to a medical issue. His blog is on hiatus.
— Executive Editor J.J. Perry
The state Senate’s new leadership has Brock Greenfield, R-Clark, as Senate president pro tem for the 2017 session rather than Gary Cammack, R-Union Center. Greenfield defeated Cammack in the closed-door Senate Republican caucus elections last month. Some inside the room said later Greenfield gave the best speech they had ever heard from him.
Senate Republican leader Blake Curd of Sioux Falls now holds the post that Corey Brown of Gettysburg held in the 2016 session. The two big changes at the top coincide with some significant shuffling of Senate committee chairmanships by the new leadership.
Greenfield, now 41, is starting his seventeenth year as a legislator. In his campaign for the top Senate leadership post last month, he vowed to take a different approach to naming committee chairmen. He said none of the top caucus leaders would receive a chairmanship and none of the senators would receive more than one chairmanship. That meant reaching wider and deeper into the Senate Republicans’ ranks.
Republicans hold twenty-nine of the Senate’s thirty-five seats for the 2017 session. None of the six Democrats received a chairmanship or vice-chairman post. Here’s the rundown:
Agriculture – Cammack returns as chairman.
Commerce – Phil Jensen, R-Rapid City, replaces Curd as chairman. Stace Nelson, R-Fulton, is the new vice-chairman, replacing Ried Holien, R-Watertown, who didn’t seek re-election this year. Nelson, a former House member, returns to the Legislature after a two-year break he took to run for the Republican U.S. Senate nomination in 2014. Nelson won the seat previously held by Bill Van Gerpen, R-Tyndall, who didn’t seek re-election. Nelson won a Republican primary for the nomination and the general election.
Holien is now South Dakota’s Republican national committeeman, a fully political post. He is replaced in the Senate by Neal Tapio, R-Watertown, who was South Dakota chairman for the Trump presidential campaign. Tapio defeated Roger Solum of Watertown, who was term-limited after eight years in the House, in the Senate Republican primary.
Appropriations – Larry Tidemann, R-Brookings, replaces Deb Peters, R-Hartford, as chair. Tidemann was vice-chair in the 2016 session. The new vice-chairman is John Wiik, R-Big Stone City, who won election to the Senate this fall after one term in the House. Wiik takes the Senate seat held by Jim Peterson, D-Revillo, who retired for the second time from the Legislature.
Education – Jim Bolin, R-Canton, replaces Deb Soholt, R-Sioux Falls, as chair. Bolin, a retired educator and term-limited after eight years in the House of Representatives, won an open seat that was held by 2015 governor appointee, Bill Shorma, R-Dakota Dunes. Shorma ran instead for an open House seat and lost in a three-way Republican primary. Gov. Dennis Daugaard appointed Shorma after the unexpected resignation of Dan Lederman, R-Dakota Dunes. Bolin has been a top critic of Common Core standards used in South Dakota public schools; Soholt defended the state Board of Education’s decision to adopt Common Core in 2010.
Government Operations and Audit – Deb Peters replaces Tidemann as chair. The new vice-chairman is Justin Cronin, R-Gettysburg, who won election to the Senate unopposed. He takes the seat previously held by Brown, who was term-limited after eight years in the Senate and retired for family and business reasons. Cronin was term-limited in the House after eight years there. The vice-chair previously was Phyllis Heineman, R-Sioux Falls, who retired rather than seek another term.
Health – Deb Soholt, a nurse and healthcare administrator, replaces Bruce Rampelberg as chair. See next committee for more on Rampelberg. Tapio is the new vice-chairman, replacing Art Rusch, R-Vermillion.
Judiciary – Lance Russell, R-Hill City, replaces Craig Tieszen, R-Rapid City. Russell, a lawyer who once tried to win election as a circuit judge, was term-limited after eight years in the House and won a primary against Republican incumbent and retired banker Bruce Rampelberg of Rapid City. Tieszen, a retired police chief, was term-limited after eight years in the Senate and won election to the House. David Novstrup, R-Aberdeen, was vice-chairman in 2016 and didn’t seek re-election. The new vice-chairman is Art Rusch, a retired circuit judge.
Local Government – Kris Langer, R-Dell Rapids, is the new chair, replacing Bob Ewing, R-Spearfish, who received a major promotion to State Affairs chairman. The new vice-chairman is Jordan Youngberg, R-Madison, who narrowly defeated Democratic incumbent Scott Parsley of Madison. Langer moved to the Senate when a governor’s 2015 appointee, Scott Fiegen, R-Dell Rapids, didn’t seek election. Daugaard appointed Fiegen to fill the vacancy caused by the unexpected resignation of then-Senate Republican leader Tim Rave of Baltic immediately after the 2015 session. Rave’s departure led to Brown stepping aside from president pro tem and becoming Senate Republican leader for the 2016 session, opening the way for Cammack to win a caucus election for president pro tem.
Langer was a Daugaard appointee as well originally, taking the seat vacated by Jon Hansen, who resigned in 2013 to attend law school. Langer defeated Democrat Scott Barth of Sioux Falls for the Senate seat this fall. This is the same area that Daugaard served as a senator before his election in 2002 as lieutenant governor and his 2010 election as governor.
Retirement laws – Jim White, R-Huron, replaces Rampelberg as chairman. White was on Senate Appropriations as his only committee in 2016 and was the Senate Republicans assistant leader. That post is now held for 2017 by Ryan Maher, R-Isabel, who returns to the Legislature after a two-year break.
State affairs – Bob Ewing moves up as the new chairman. Cammack chaired it in 2016. The vice-chair is Jenna Netherton, R-Sioux Falls. Netherton, who previously served under her maiden name of Haggar before her marriage this year, replaces Alan Solano, R-Rapid City, who was a 2014 governor’s appointee after the unexpected resignation of Stan Adelstein, R-Rapid City, just before the 2014 session began.
Taxation – Jeff Monroe, R-Pierre, returns as chairman. That makes him a rarity with all the shuffling that’s taken place. The new vice-chairman is Jack Kolbeck, R-Sioux Falls, who replaces Greenfield in that post. Kolbeck won the seat that Heineman held. She had served 15 years as a legislator in both chambers over two periods.
Transportation – Ernie Otten, R-Tea, replaces Mike Vehle, R-Mitchell, as chairman. Vehle was term-limited after eight years in the Senate and retired after 12 consecutive years as a legislator. The new vice-chairman is Jim Stalzer, R-Sioux Falls, who replaces Monroe in that post. Stalzer won election to the Senate after David Omdahl, R-Sioux Falls, didn’t seek re-election. Vehle’s Senate seat went to Joshua Klumb, R-Mt. Vernon, in the November election; Klumb, who beat Democratic former legislator Quinten Burg of Wessington Springs in November, had served one term in the House and is the new vice-chairman for the Senate agriculture committee.
Other returning Republican senators include Terri Haverly, R-Rapid City, whose one assignment is appropriations; and Al Novstrup, R-Aberdeen, who will have four committee assignments (two that routinely meet and two that meet less regularly). He is starting his fifteenth year as a legislator. For 2017 he moves from the House to the Senate seat held last term by son David Novstrup. Coming from the House to the Senate is Jeff Partridge, R-Rapid City, who won a primary election and will specialize again on appropriations.
The number of Democrats might decline from six to five depending on the outcome of criminal charge against Sen.-elect Reynold Nesiba of Sioux Falls. He is accused of a sexual offense involving a woman he reportedly met online through Facebook. He reportedly told police he doesn’t dispute most of the victim’s version of events but said he didn’t force himself upon her. The governor likely would appoint a Republican if Nesiba can’t serve. The other Democratic senators have asked Nesiba to stay clear of their caucus while his matter is unresolved.
We’ll take a similar look at House leadership and chairmanships in the days ahead on this blog.
NOTE: The original version of this post contained an incorrect reference to the Bolin and Shorma candidacies.
South Dakota’s initiative and referendum processes are like mousetraps. When the voters decide to make a change, whack! it snaps shut without much time for transition. The affected citizens or businesses or office-holders must comply almost instantly. The only grace period is the week of time between election night, when we see the initial results of the voting, and the completion of the county canvass and then the state canvass that cement those results in place. We saw this happen in the past month with the widespread confusion over public information disclosure under the Marsy’s Law victim-rights constitutional amendment, which is still being sorted out. We saw it with the nearly instant pull-out of payday lenders now facing an annual limit of 36 percent interest rates. And we’re seeing it play out this week on Initiated Measure 22, the Anti-Corruption Act, that more than one dozen Republican legislators including the House and Senate leadership are taking to state court Thursday. Their hope is that state Circuit Judge Mark Barnett will issue a preliminary injunction against parts or all of the new restrictions and the publicly-funded election campaign system established in the law.
Someone better acquainted with criminal law in South Dakota could answer whether some of these legislators (and other state officials who aren’t plaintiffs in the lawsuit) already are breaking one of the laws passed as part of the Anti-Corruption Act. A section of the measure places a $100 limit on the gifts that a legislator can accept from a group or organization or business that has a lobbyist at the legislative session. The gift limit applies to immediate family members such as spouses as well. The definition of gift in the new law includes employment. That’s why Senate Republican Blake Curd of Sioux Falls, for example, is the lead plaintiff in the lawsuit; he works for and is an executive for a specialty hospital in Sioux Falls that employs a lobbyist at the Legislature. There are other legislators in the lawsuit whose spouses work for organizations that employ lobbyists at the Legislature. Are they not all breaking the new law already? But the question that counts is who’s going to enforce the law against them? So far, no one. And with the lawsuit, they’re positioning themselves above the law that the voters approved.
Another group of legislators in the lawsuit are three lawmakers who receive income from the South Dakota Retirement System. SDRS is a government agency that represents state government and many city and county governments and school districts. Several of the SDRS professional staff lobby at the Legislature. The system’s executive director was at the Capitol on Tuesday mixing with legislators as part of the governor’s budget speech. If the current three can’t serve under the new gift law, many retired public employees across South Dakota couldn’t serve in the Legislature without giving up their SDRS checks.
The governor in his speech attacked IM 22 and its sponsors. One of his criticisms was nearly all of the money that funded the “yes” campaign came from outside South Dakota. That was true — but the unspoken other side of that same truth is nearly all of the money that funded the “no” campaign came from outside South Dakota, too. Our state was a battleground between progressive groups trying to change the funding system for elections in our nation and Americans for Prosperity, a national organization representing conservative interests. The legislators in the lawsuit challenging IM 22, and the governor in his criticisms of IM 22, are trying to overturn the decision made by South Dakota voters on Nov. 8.
There are many legislators and lobbyists and state officials who argue the voters didn’t know what they were voting on. We haven’t seen proof of that claim, however. The same claim likely could be made about many of the “no” votes. The Nov. 8 result was a backlash against the corruption we have seen come to public light since 2013, with the shotgun death of former state Secretary of Tourism and State Development Richard Benda in the EB-5 immigrant investor visa scandal, and with the 2015 shotgun deaths of Scott Westerhuis and Nicole Westerhuis and their four children at their family home at Platte, in the state Department of Education’s Gear Up scandal.
Those scandals bred in the previous administration of Gov. Mike Rounds, who’s now a U.S. senator. The Legislature’s Republican leadership didn’t show much appetite for reforms but did pass, led by Rep. Mark Mickelson, R-Sioux Falls, two rounds of conflict of interest laws aimed at state employees and members of state boards and commissions. The restrictions on board and commission members currently are much tougher than even IM 22 places on legislators and elected state officials. The administration of Gov. Dennis Daugaard and Lt. Gov. Matt Michels took their own step in the 2016 legislative session by getting a law passed to establish a state Board of Internal Control that’s meant to bring some better structure and oversight to state agencies regarding grants, such as the money that flowed from the federal Department of Education through the state Department of Education to the soon to be defunct Mid Central Educational Cooperative at Platte to several non-profits for the Gear Up program.
The South Dakota Constitution in its legislative article prohibits bribes and prohibits legislators from having interest, direct or indirect, in state contracts. Look at section 28 of article 3:
Any person who shall give, demand, offer, directly or indirectly, any money, testimonial, privilege or personal advantage, thing of value to any executive or judicial officer or member of the Legislature, to influence him in the performance of any of his official or public duties, shall be guilty of bribery and shall be punished in such manner as shall be provided by law.
What could be more straight-forward than that, especially the word “any”? But it’s not enforced. If it had been enforced, IM 22′s gift limit of $100 would be irrelevant (and maybe still is, because “any” is much broader than $100). Then consider the last part of section 12 of the same article 3. It says:
nor shall any member of the Legislature during the term for which he shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed during the term for which he shall have been elected.
This has been enforced in recent decades. An official opinion from the then-attorney general was requested after Mike Rounds, R-Pierre, was elected to the state Senate; he was a partner in the insurance firm that provided insurance coverage to the Legislature. The existing policy was allowed to stand because it took effect before his election, but the firm became ineligible for the contract in the next round. Carol Pitts, R-Brookings, eventually stepped down from a House seat because she voted on the general appropriations bill and therefore helped fund the Cooperative Extension service where she worked. But we now have at least three legislators whose spouses work directly for state government. Evidently the phrase “directly or indirectly” doesn’t apply to their households. Again, had the constitution’s ban been enforced, the gift definition in IM 22 that includes employment wouldn’t seem objectionable to some in the Legislature. Surprisingly, Mickelson is a plaintiff in the IM 22 lawsuit, because the free lunches he receives at the monthly meetings of the Sioux Falls chamber of commerce board probably would exceed the $100 gift limit.
During the part of his speech Tuesday when he was attacking IM 22, the governor mentioned a tweet I sent in the days after the Nov. 8 election. He evidently didn’t understand the point of that Twitter message. I pointed out in the tweet the state constitution already banned some of the actions being protested by legislators who don’t want to submit to the restrictions of IM 22. South Dakota voters who said yes to IM 22 will be defended in circuit court on Thursday by Attorney General Marty Jackley. Not to be critical, but there isn’t any record of Jackley enforcing the constitutional restrictions on legislators since he was appointed by Rounds on April 19, 2009.
The wild card in the IM 22 lawsuit is Circuit Judge Mark Barnett. Back when he was attorney general, he decided it was improper for free food to be offered on election day at the Wasta polling place. This led to the Barnett tradition of hosting Pie Day, first for the voters of Wasta and eventually as a statewide Christmas season event at the Capitol for anyone to come and enjoy some free slices of volunteer-baked pies. Pie Day continued under Barnett’s successor, Larry Long, and now under Jackley. The 19th annual Pie Day is Saturday, Dec. 10, at the Capitol starting at 11 a.m. CT. Given the judge’s previous position that free pie at Wasta was an illegal enticement, it will be interesting to see what he thinks of free food and other gifts for legislators under IM 22.
Then there is another field of discussion about campaign contributions. Business and groups have political action committees that donate to candidates for state office and the Legislature. The contributions aren’t uniform; they clearly appear linked to where a candidate stands on the issues of importance to the PAC’s funders. And legislators from both of the political parties with members in the Legislature hold annual fund-raising events during legislative sessions where the expectation is that lobbyists will attend and contribute to their respective party-caucus campaign funds. Those campaign funds are later redistributed to some of the parties’ legislative candidates depending on the need in a particular contest. More of that discussion can be held another day on this blog.
FIRST UPDATE: The state response filed by assistant attorney general Steven Blair asserts there isn’t a current violation of IM 22 regarding employment of legislators and their spouses because the new laws weren’t intended to be retroactive.
SECOND UPDATE: On a related but separate point, that isn’t covered in the legislators’ lawsuit or the state’s response, regarding state government jobs held by spouses of legislators, there evidently isn’t an official attorney general opinion on the topic. One of the three legislators whose spouses work in state government told me Tuesday, as we walked downstairs to leave the Capitol after the budget speech, with a second legislator alongside, that he had requested and received an opinion on the topic when he began serving. He said the opinion indicated to him it was acceptable for his wife to work for state government. I couldn’t find such a written opinion Tuesday night or Wednesday on the specific topic. Nor could the public information person for the attorney general’s office. I’ll contact the legislator again (or he can email or mail a copy to me; he is my backyard neighbor in Pierre) and try to get a copy of what he said he received.
I haven’t seen it published elsewhere yet this afternoon. So I thought it would be worthwhile to do that here. It speaks for itself. It also seems to reflect questions about what ultimately might happen regarding the Dakota Access Pipeline’s intent to cross beneath the Missouri River using U.S. Army Corps of Engineers shoreline and river bottom. Here it is:
Standing Rock Sioux Chairman calls for water protectors to return home
CANNON BALL, N.D.—The following letter from the Standing Rock Sioux’s Tribal Chairman, Dave Archambault II, may be quote in part or in full:
I know we have prayed and continue to do so. Now you must believe in your prayer.
Energy Transfer Partners cannot cross the easement, even if they drill. Not only will they will jeopardize the entire pipeline project, but they will also jeopardize their investors’ money and their bank loans. They may drill up to the federal lands to try to provoke the campers. They will do this to create the illusion that the Army Corps of Engineers made the wrong decision. We do not need to engage them in this; we need to go home. While this phase of the struggle relied largely on the protectors at camp, this next stage will be focused on the legal battles, and keeping the current decision in place.
A new administration will not easily be able to reverse Sunday’s historic decision. This decision is everything we had asked for: a non-granting of the easement, initiating an Environmental Impact Study, and suggestive of a reroute. We got it! Energy Transfer Partners will face an uphill battle in trying to dismantle the process initiated by this decision.
We deeply appreciate all the people who supported us with their presence, but when this storm passes, it is time to dismantle the camp and return to our homes. If the camp stays where it is currently located, people are risking their lives. The current weather is severe, making travel impossible. If the camp stays, we run a risk of further provocation from local law enforcement. Once one person is hurt or property is destroyed, that will lead to more outsized actions by law enforcement. The longer the camp stays, the greater risk we run of seeing further violence at the hands of law enforcement and potential injury to our supporters.
Our great leaders of the past would never put the people at risk of harm, especially women and children. I don’t want anyone to be living in an unsafe environment. We need to stay in prayer, believe in our prayer, and begin our journey home in prayer. I believe in my prayers and in the Creator. Take the lessons we learned here and apply them at home—unity, peace, prayer.
I know this is a victory for this one DAPL battle, but we have not yet won the DAPL war. There will be more battles ahead and we will continue to strategize and win. The camp has brought us this far—now it is time we pivot to the next phase of this struggle. That will be lead on different fronts like in court, with the new Administration, with Congress, and with the investors.
We are establishing a path now to help the world understand that what we asked for and what we got is the right decision. The world is watching us and our behavior will determine the final outcome.
I am asking each and every one of you to come up with a strategy to close and exit the camp. I respectfully ask that you leave the land as it was when you arrived, and return home before the winter grows more severe. Pass this on—let everyone know that we are thankful for their passion and commitment and we are thankful for them all standing with us. It’s time now to enjoy this winter with your families. We need all to respect the host tribe’s wishes. We are asking all tribes to pass this on to their members.
This storm is a glimpse of what is to come as temperatures are still not reaching the winter lows of this region. I understand that folks cannot go at this moment, but as soon as this current storm has passed, we must execute an exit strategy and continue our battles to protect water. These efforts are not only needed in Standing Rock, but they are needed throughout Indian Country, across America and internationally. I want you to know that Standing Rock stands with you as you return home to carry this energy and movement into the future.
House Speaker Dean Wink, R-Howes, left his office at the Capitol for presumably the final time today after the governor’s budget speech. Wink, 72, served four terms totaling eight years in the House and was its presiding officer as speaker for the 2015-2016 term now ending. He didn’t seek election to the Senate. Now he heads back to Meade County, knowing he did his best and knowing others thought he did it well. He’ll be succeeded as speaker by Rep. Mark Mickelson, R-Sioux Falls.
Because I was traveling, I wasn’t able to attend the Monday teleconference of the Marsy’s Law task force assembled by state Attorney General Marty Jackley. He issued a news release and an official attorney general opinion on Monday evening that said the victim-rights constitutional amendment doesn’t block the release of traffic-accident reports to the public, nor does it block the release of street address information where crimes occurred, nor does it block the release of names of victims in crime report logs and law enforcement radio traffic. The biggest value of his official opinion is to law enforcement and emergency response agencies and their personnel; they now will have official qualified immunity from lawsuit or trial if a victim alleges there was improper release of those types of information.
Jackley said in his official opinion, and cited past U.S. Supreme Court decisions as his basis: “It is generally accepted that good faith reliance on an Attorney General Opinion entitles a person to qualified immunity.” Jackley further notes elsewhere in his official opinion that a legislature or a court can later overrule the finding of the opinion, but the immunity remains in effect for those who acted in the meantime under the attorney general opinion. This threat of lawsuit was a reason that city and county attorneys advised against any release of information or at most limited release, State government agencies such as the Department of Public Safety likewise stopped releasing information in the weeks since South Dakota voters approved the Marsy’s Law constitutional amendment in the Nov. 8 elections.
After several weeks of news stories about law enforcement agencies cutting off or reducing information, the task force was assembled by the attorney general in the second half of last week. Its first meeting came Friday, by teleconference, without Jackley participating. He was returning from a national association of attorneys general meeting in Florida.
One hiccup in all of this remains that Jason Glodt, who officially is now the treasurer for Marty Jackley’s 2018 campaign committee, managed the Marsy’s Law campaign in South Dakota. Glodt maintained in recent weeks that Marsy’s Law required a victim to opt-in to receive the protections that are now granted by Marsy’s Law. One of those protections set in Section 5 states: “The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records.” In the concluding sentences of the amendment, after it lists the 19 sections of rights, is the phrase “upon request of the victim.” That is the basis for the opt-in argument.
In his pre-election “pro” statement for voters about why voting for Amendment S would be good, Glodt said: “Marsy’s Law will also give victims the right to privacy and the right to refuse unreasonable requests for discovery or the release of personal information.” Glodt issued a statement to news media on Monday night, a few hours after the attorney general issued the official opinion, saying the Marsy’s Law supporters were “extremely pleased” with the opinion and the position of the task force.
The task force has considerable work still ahead of it. Jackley notes in his official opinion that the rights apply both to the primary victim and to ancillary victims such as spouse, parent, child, sibling, grandchild, guardian or any person with “a substantially similar relationship to a primary crime victim.” He also says the amendment is “ambiguous” as to the identification, duties and responsibilities toward victims or potential victims requiring constitutional interpretation.
Three subcommittees formed Monday, according to Aberdeen American News reporter Kathy Jensen’s story. Her piece contains some further insights. It’s at http://bit.ly/2ggGZZq.
Here are links to the official attorney general opinion and the news release from the attorney general.
The state Public Utilities Commission is scheduled to decide Tuesday morning whether to delay a change planned for South Dakota electricity customers by Northern States Power Company, also known as Xcel Energy, in what’s known as a fuel clause rider. Typically these automatically take effect unless the commission wants a review. The commission staff seeks a 180-day delay. NSP had previously informed the commission and the PUC staff the company was adding three solar projects to its purchased-power portfolio. The PUC staff wants to look at the costs. South Dakota customers essentially are being asked to pay more for NSP projects in Minnesota so the company can comply with a Minnesota state law requiring solar development.
The Marshall solar project began producing energy in October. NSP wanted to start recovering the costs through its fuel clause rider in December. NSP wants to begin recovering costs for the Aurora solar project and the North Star solar project in January 2017. The PUC staff in its Nov. 30 request for the delay said the Marshall costs aren’t specifically identified in the company’s current fuel-cost recovery filing. The staff “believes it is necessary to evaluate the resource to determine whether the PPA is reasonable and cost effective considering other electricity alternatives. Commission Staff requests a suspension to allow adequate time to evaluate the Marshall Solar project.”
The staff believes the same research is needed for the Aurora and North Star projects. The goal is to ensure the fuel-recovery adjustments “are reasonable and cost effective considering other electricity alternatives.” The North Star project, which would produce 100 megawatts at its site in Chisago County, Minnesota, has been described as the largest solar project in the Midwest. Its construction is tied to a Minnesota law requiring utilities to produce 1.5 percent of their retail electricity from solar by 2030. The Aurora project is spread across 16 sites in Minnesota and would produce 100 megawatts. The Marshall project, owned by NextEra Engery, is four miles east of Marshall, Minnesota, and is estimated to generate 62.5 megawatts.
Now that the Legislature’s Republican leadership and other Republican lawmakers have filed a lawsuit asking that a circuit judge block Initiated Measure 22 from continuing in effect, the talk has stopped about legislators calling a special session in an attempt to overturn it.
Sources say there were serious and significant discussions in the days leading up to Thanksgiving about a special session.
One lobbyist reportedly worked the phones just before Thanksgiving taking a head count of who would agree to holding a special session yet this year, and who among them would vote to overturn IM 22. Known as the Anti-Corruption Act, voters approved it Nov. 8.
A two-thirds majority would have been needed in each of the Senate and the House of Representatives for a repeal to potentially have taken immediate effect, through an emergency clause rather than July 1 when most new laws take effect.
Using the emergency clause likely would have prompted a legal fight over whether there indeed was an emergency and whether opponents of the law could refer it through a petition drive. A referral would have put the repeal action on hold until the 2018 general election, so that voters could decide on it again.
IM 22′s restrictions, including a $100 limit on gifts to legislators and their family members, including employment, took effect one week after the Nov. 8 elections. That is a major thrust in the lawsuit.
The lawsuit was filed instead on the day before Thanksgiving and now replaces the special session. Lawmakers involved in the lawsuit hope they have a judge’s injunction in place before the Jan. 10 start of the 2017 legislative session.
UPDATE: State attorney general’s office received notice this morning (Thursday) the circuit court hearing will be Dec. 8 at 1 p.m. CT.
The U.S. Fish and Wildlife Service reached an understanding with farmer Jeffrey Albrecht of rural DeSmet about two irrigation wells he wants to tap the Vermillion East Fork aquifer. The federal agency’s staff had expressed concern about the potential effects of one of the wells on a federal wetlands easement in Kingsbury County for the same parcel that would be serviced by the irrigation wells. According to a USFWS letter filed with the state Department of Environment and Natural Resources, which will decide on the permit application for the wells on Thursday, the agency’s staff after meeting with Albrecht now is satisfied that Albrecht would irrigate periodically over the growing season, and not every day, from May 1 through Sept. 30. The agency said Albrecht also agreed to change the location of one well so it is 100 feet farther away from the wetland. The federal agency also told the state department that he is willing to adjust his irrigation schedule or volume if there is an impact on the wetland. Consequently, the agency doesn’t plan to appear Thursday before the state Water Management Board during its hearing on the Albrecht application.
Albrecht wants to irrigate 102.5 acres. Jeanne Goodman, chief engineer for the state water rights division, has recommended the state board grant the permit. Her recommendation is based on the belief by DENR staff there is sufficient water in the aquifer. The neighboring farm operation owned by H.T. Albrecht and Sons opposes the new irrigation wells as a potential threat to its irrigation supply. The H.T. Albrecht operation has held its irrigation well permit since 2011 and its lawyer, Michael Unke of Salem, has notified the state department there isn’t enough water available at times for the existing permit. Representing Jeff Albrecht is lawyer Justin Smith of Sioux Falls. The Water Management Board hearing is scheduled for Thursday afternoon in Pierre.
NOTE: An earlier version of this post incorrectly identified Justin Smith as the lawyer for H.T. Albrecht and Sons.
Sometimes through time we lose recognition of turning points in South Dakota’s history. One of those turning points came in the decade of the 1990s and ultimately in the 2000 election. The Legislature repeatedly opened the door to an amendment of the South Dakota Constitution regarding investment of the permanent school fund. Until voters finally passed the amendment in November 2000, the fund’s proceeds could be invested in only safer financial instruments such as bonds of the U.S. government or securities backed by the federal government, or bonds issued by South Dakota school districts, cities and counties. Legislators and several state lands commissioners, who oversee the distribution of the permanent fund’s earnings to education, wanted to allow much more flexibility in how the state Investment Council managed the school fund, so that stocks could be used too.
Sen. Bill Johnson, R-Buffalo, worked throughout his 10 years as a legislator for more flexibility and potentially higher earnings for the permanent school fund. His legislative district, covering the northwestern corner of South Dakota, probably had more state-owned school and public lands than any other. That naturally led to a high interest in the operation of the state school and public lands commissioner’s office, For six years he was part of a campaign to allow more freedom for investment of the permanent school fund. In its eighth year, the effort finally succeeded.
Voters rejected a 1994 constitutional amendment offered by the Legislature that would have allowed up to 50 percent of the fund to be invested in stocks. At that time, the state lands commissioner still was responsible for the investment of the fund. The 1994 proposal called for the Legislature to make up any losses. In 1996, voters approved a constitutional amendment that put the permanent school fund under the Investment Council. In 1998, the Legislature again offered a constitutional amendment again allowing for more flexible and higher-risk investment, but this time without the provision that the Legislature automatically cover any market losses. The voters rejected the 1998 proposal as well. It failed miserably with 96,975 yes and 150,907 no.
That was Bill Johnson’s final year as a legislator. But the issue wasn’t done. In 2000, a bipartisan mix of legislators led by Sen. Arlene Ham, R-Rapid City, and Rep. Larry Lucas, D-Mission, brought the resolution for a constitutional amendment again and saw it placed on the ballot. It called again for the Legislature to make up any loss caused by an unconstitutional act such as embezzlement but was silent on market losses. It allowed for investment in stocks, bonds, mutual funds and other financial instruments as provided by law. This time, the voters approved the change, with 168,896 yes and 132,181 no.
Bill Johnson died Nov. 21 of this year at age 86. His funeral was Monday. He had served from 1989 through 1998. Flags flew at half-staff in his honor at state government buildings Monday.