State justices rule on DUI blood draws w/ 2 updates

In two separate but complementary decisions released Thursday morning, the South Dakota Supreme Court set a bright line that drunk-driving arrest procedures must change. Citing the U.S. Supreme Court’s 2013 McNeely decision, law enforcement can’t continue to automatically conduct warrantless blood draws on motorists suspected of driving under the influence, the South Dakota justices unanimously said. They ruled in the case of Lloyd Edwards in Meade County that his blood draw was allowed because it happened on March 25, 2013, prior to the McNeely decision. They ruled in the case of Shauna Fierro in Butte County that the magistrate correctly suppressed the blood drawn involuntarily from her on August 4, 2013. Between them came McNeely. What is next needed is the process that law enforcement can legally use to obtain blood samples from DUI suspects who won’t willingly allow samples to be taken. Justice Lori Wilbur wrote both opinions for the court.

UPDATE: In the Fierro decision, the South Dakota justices said several times that drawing her blood without her consent and without a warrant was a violation of the Fourth Amendment to the U.S. Constitution and, specifically to the South Dakota Constitution, a violation of Article VI, Section 11. (§ 11. Search and seizure. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.) The court noted that it wasn’t invalidating the state law but was ruling the blood sample wasn’t allowed. Justice Wilbur wrote in a footnote on page 17 of the decision: “Fierro’s blood sample was obtained as a result of a
constitutional violation.”

UPDATE 2: In both cases, the suspects verbally and physically resisted blood samples being taken. The court said Fierro told officers she wanted to refuse a blood test and consult with a lawyer. When they proceeded to try to draw blood, she pulled her arm away. The court said Edwards physically and verbally refused to provide a sample. Two officers placed Edwards in a restraint chair, a Taser was held to Edwards’ abdomen and he was told the Taser would be used if he continued to resist. The blood sample was obtained while he was in the restraint chair.

GFP getting ready for pheasant hoopla

This reporter is looking forward to seeing the final draft of the governor’s pheasant habitat work group and the annual August population estimate based on counts of adult pheasants and their broods seen along roadside routes by state Game, Fish and Parks Department biologists. GFP personnel have  been not-so-discreetly building public anticipation of the brood-route numbers in recent weeks, and anyone who’s driven our state’s highways and backroads knows there are more of the game birds than we saw at this time a year ago. Within GFP there is still puzzlement over the 2013 estimates, which were some of the smallest in modern times when announced — but come October’s opener, there seemed to be considerably more birds than had been estimated. That caused some introspection within the Wildlife Division about the brood-route surveys and had some members of the GFP Commission wondering.

The summaries from the pheasant work group meanwhile can be found here or through GFP’s main web page at Unfortunately the much-discussed draft isn’t posted on the pheasant work group’s web page. You can get a feel for some of the group’s priorities and recommendations — and the give and take on some of them — by reading through the summaries from each meeting. According to the Aug. 13 meeting report Steve Halverson, a work-group member who farms and ranches south of Kennebec and runs a pheasant hunting business, observed that the draft looked good from a landowner’s perspective but he wondered how the general public would react to the report. There will be a web site, based on comments in several of the meeting reports, and members commented at several meetings that the site shouldn’t be linked to the GFP site.

Two related habitat issues discussed by the work group and will perhaps get attention from legislators and state government officials are ditch mowing and agricultural land valuation. The timing of ditch mowing is governed by a combination of state, county and township regulations; along state highways, here is the rule:

No mowing of the right-of-way may begin in the west river counties of Gregory, Lyman, or Tripp before June 15 and east of the Missouri River before July 10. All mowing by permit must be completed by September 1 each year.

That’s one thorn patch. So is the land valuation question. It likely will be increasingly discussed in general — not solely in relation to pheasant habitat — by the Legislature’s task force currently headed by Sen. Larry Rhoden, R-Union Center. Ag values currently are based on a complex formula that determines production potential involving soil type, crop type, yields and commodity prices. Some on the task force such as Rep. Jim Peterson, D-Revillo, have been looking for years to protect landowners who keep their property in grass. South Dakota is still five years away from full implementation of the productivity potential model; there are caps on the maximum increases and decreases on taxes payable through 2019. Pheasant habitat will be a side note in the debates ahead on this issue.

The Democrats’ three-day blow on EB-5

South Dakota Democratic candidates and leaders showed unusual coordination this week with their focus on the EB-5 matter. They kicked off with a story on KELO television Monday that linked former Gov. Mike Rounds to the no-bid contract that was signed by his Cabinet member Richard Benda in 2009 giving SDRC Inc. control of the program including most of its fees. They rode harder on Tuesday with a Sioux Falls news conference at which House Democratic leader Bernie Hunhoff, Senate Democratic leader Jason Frerichs and other legislatorsRep. Susan Wismer took turns raising questions about EB-5, following through on the attempt earlier this summer by their party’s gubernatorial candidate, Rep. Susan Wismer, in seeking to have the Legislature’s Government Operations and Audit Committee subpoena SDRC president Joop Bollen. They now want others such as Rounds, Gov. Dennis Daugaard and SDRC lawyer Jeff Sveen to appear before the committee, whose membership is dominated by Republicans. The Democrats followed through today (Wednesday) in the DakotaFest debates at Mitchell as Wismer and U.S. Senate candidate Rick Weiland went after EB-5, as did independent and former Republican U.S. Sen. Larry Pressler and independent former Republican legislator Gordon Howie. Rounds in turn defended himself and said today he would have fired Benda if he knew money was diverted for Benda’s salary with SDRC in 2011 after Benda was let go by new Daugaard administration. Benda was found dead Oct. 22 in what investigators deemed a suicide. And independent gubernatorial candidate Michael Myers and running mate Lora Hubbel held an impromptu demonstration outside the debates showing why they don’t believe it was suicide.

How might we interpret ‘report card’ and ACT results?

The state Department of Education issued two sets of statistics in the past 48 hours that, taken together, provide the public with some perspective about academic performance of South Dakota high school students.

Let’s start with the ACT results released this morning (Wednesday) that show 78 percent of the 2013-14 graduating class took the test and they achieved an average total score of 21.9, same as the previous class. Nationally the average ACT score was 21.0 for this year’s graduating class and 20.9 a year ago. The highest possible score is 36. The ACT looks at math, science, reading and English skills. South Dakota posted scores of 21.8 in the three previous years. The national score has bounced in the range of 20.9 to 21.1 in recent years.

Now let’s back up to the ‘school report card’ results that were released Tuesday (you can see the whole report here). Of the South Dakota students who took the ACT, 67 percent met the state universities’ benchmark for math and 75 percent met the benchmark for English. Or, to put it the other way, approximately 33 percent need remedial work in math and about 25 percent need remedial work in English. If students take those remedial courses once they are at the universities, they must pay for the classes and the courses don’t provide credits toward their degrees. There are options available through their high schools to complete the remedial work before they attend the universities. A year ago, about 68 percent of the South Dakota students who took the ACT reached the universities’ math threshold and about 76.6 percent reached the English threshold.

State water board chooses financial pros

The state Board of Water and Natural Resources, whose primary responsibilities are administering loans and grants for water projects and waste management projects, met by teleconference this fine Tuesday morning and chose an investment banking firm (two, actually) and renewed its legal services contract for a new round of bond issues. From a group of nine proposals the board selected JP Morgan as its investment banker with Wells Fargo Securities as a co-manager because of Wells Fargo’s wide presence in South Dakota community banking. The board also gave a new contract for bond counsel services to Bruce Bonjour and the Perkins Coie firm of Chicago. The board will pay Perkins Coie $80,000. The bond issue is expected to carry a par value of $69 million and be completed yet this calendar year.

Governor makes many appointments to “people services” boards and commissions

There are lots of names of people and panels to cover with the new appointments and reappointments recently made by Gov. Dennis Daugaard.

Reappointed to the state Board of Vocational Rehabilitation are Darla McGuire of Ethan, Leo Hallan of Yankton, Carol Kirchgesler of Aberdeen and Colleen Moran of Sioux Falls. The governor named three new members, too. Lisa Sanderson of Sioux Falls, Kimberly Holberg of Aberdeen and Kendra Gottsleben of Sioux Falls succeed Elaine Roberts, Joseph Rehurk and Craig Eschenbaum.

Reappointed to the Independent Living Council are David Miller of Sioux Falls and Isabel Trobaugh of Elk Point. The governor’s new appointees are Gillian Plenty Chief of McLaughlin and Dave Scherer of Sturgis. They succeed Lyle Cook and Patrick Czerny.

The governor named three new members to the Family Support Council. They are Darci Bible of Pierre, Shelly Means of Rosebud and Elizabeth Brown of Clear Lake. They succeed Kris Kratovil, Lois Gotheridge and Lora Barthelman.

The governor appointed two new members to the Planning Council on Developmental Disabilities. Bradley Saathoff of Rapid City and Angel Maggard of Pierre succeed Rebecca Carlson and Cynthia Roan Eagle.

All of the new terms run until June 30, 2017.

The Behavioral Health Advisory Council also gets two new members. The governor appointed Jacksyn Bakeberg of Spearfish and Tim Neyhart of Pierre. Neyhart succeeds Robert Kean. Bakeberg’s term runs until Oct. 30, 2016. No end date was given for Neyhart’s appointment.

A common denominator in MLB playoff races

Two statistics separate the contenders in the six divisions of Major League Baseball. Every division leader has a winning record at home and a winning record on the road. That’s not true of four of the six second-place teams, however.

The three American League leaders are Baltimore, Kansas City and the current tie between the Los Angeles Angels and the Oakland A’s. The three National League leaders are Washington, Milwaukee and the Los Angeles Dodgers.

The second-place teams with winning home and away records are Detroit in the AL Central and Oakland/Los Angeles Angels in the AL West. There is a third-place team, too: Seattle in AL West.

Toronto, in second place in the AL East, has a losing record on the road. So do Atlanta in the NL East and St. Louis in the NL Central.

The odd division is the NL West. The Dodgers are one game above .500 at home. In second place, San Francisco one game below .500 at home.

Minnesota, by the way, played some interesting baseball during the past week as the new talent took the field and Joe Mauer returned at first base. The Twins nonetheless are 4-6 in their past 10. They stood 55-66 for the season after the 4-1 win Saturday night over Kansas City and have losing records at home and on the road. Their official attendance Saturday night was reported at 35,575. Nothing wrong with that.

Regarding coverage of 2014 election campaigns

A common bit of advice to other lawmakers from Jim Putnam during his 26 years as a Republican legislator from Armour was this: “Keep your eye on the ball.” That line came to mind this morning, as I considered how the South Dakota news media organizations have covered the election campaigns this summer.

Because I might need to report on some of them, I will withhold my personal opinions about some of the personalities. But their actions are triggering reactions and opinions in my head.

Some of what’s happening seems to be idiocy run amok. Some of it is self-inflected. Some of it leaves me speechless. Here are two examples from the past six weeks:

A Republican Party official proclaiming that Democrats don’t value voters when the Democrats leave ballot slots open for legislative seats — never mind that Republicans left slots open, too; and

A Democrat stating on Twitter about her candidacy that “I condone misogyny in all its forms” — and then wiping her Twitter account clean of the several tweets in which she said she condones misogyny, and showing nothing on her Twitter her account since July 16.

As for the Chad Haber and Annette Bosworth duels with Secretary of State Jason Gant and Attorney General Marty Jackley…


And people wonder why I spend so much time covering the actions of state boards and commissions and legislative committees.

It’s either that, or spending more time covering these election campaigns.

I put some time into the gubernatorial primary campaigns in May. I used a questionnaire format and went to some candidate forums.

I will shift more attention to the election politics come September and October.

During the primary season, I was stiffed by a major candidate in another race on questions about EB-5. I’ll take another run at that matter.

But some of this stuff we’ve been seeing this summer, well…

Gaming Commission considers rule changes

The state Commission on Gaming, which oversees Deadwood gambling casinos and parimutuel  betting on horse and dog races, holds a public hearing next month on seven sets of rule changes. Some of the proposed changes are to bring South Dakota into line with regulations in other states. There are two proposals that go farther. One would allow the sale of tip sheets and other printed matter in the grandstands at races. Another would reduce record-keeping to three years from the current rule of five years. The hearing is scheduled Wednesday, Sept. 10, starting at 9 a.m. MDT at Deadwood City Hall’s meeting room. The rule proposals and accompanying documents can be found at this link on the website.  The commission will accept written comments through Monday, Sept. 8, but has asked that written comments be received by Friday, Sept. 5, to “allow for adequate consideration prior to the hearing.”

For DSU, one thing led to another that led to another…

… and another and another. That’s the chain of events leading to the sudden resignation Wednesday by David Borofsky as Dakota State University president. A decade ago, the DSU president was Doug Knowlton and the executive director for the state Board of Regents was Tad Perry. When Perry did the retire-rehire maneuver, he angered more than a few legislators, and at least some of the regents felt they were held hostage. Perry retired for real in 2009. He supported the hiring of Jack Warner from Rhode Island. Warner came with a strong resume of leadership at colleges, universities and higher education systems in Massachusetts and Rhode island and continued as an active leader at the national level. By hiring Warner in 2009, the regents didn’t hire Knowlton, whom many thought would be a good choice from inside the South Dakota system. Knowlton left South Dakota in early 2012 after eight years at Dakota State University. He accepted what became a double role in the Minnesota state universities and colleges system as vice chancellor for academic and student affairs and subsequently as vice president for student success at Metropolitan State University. Knowlton’s departure from DSU came in the middle of the academic year. The regents hurriedly named David Borofsky as interim president. He had last been provost and chief academic officer for three years at Westwood College, a for-profit institution with operations in six states and on-line degrees. At the time of his hiring in January 2012, the regents emphasized Borofsky would be strictly an interim president at Madison, with the regents stating in a news release that he would be serving in “a temporary capacity through midyear of 2013.” Borofsky said in the same news release he intended to provide “a smooth leadership transition” to the next president. While this was happening, the regents faced the potential loss of another campus president, Bob Wharton at South Dakota School of Mines and Technology. Wharton, who had cancer, died Sept. 19, 2012. Nearly immediately the regents announced a search committee for Wharton’s successor. That meant the nine-member board would have two search committees under way. Borofsky meanwhile had quickly impressed townspeople and at least some of the DSU administration and faculty, and they made their opinions known to regent Randy Schaefer of Madison. The search committee began its work Oct. 15, 2012, on finding a new president for School of Mines. The full board announced one week later on Oct. 22, following a special meeting in Madison, that David Borofsky would be the full president of Dakota State University. The announcement included this set of statements:

“President Borofsky has done an outstanding job at Dakota State during this interim,” said
Regents President Kathryn Johnson. “We crafted a series of expectations for him as interim
president and he has far exceeded those. He has excelled at building relationships between the
campus and the Madison community and at raising private funds for the university,” Johnson
said. “President Borofsky has been building a positive momentum for Dakota State University,
and no one wanted to break that momentum,” she said.

During Borofsky’s time, the university changed out its athletic director, two deans and an assistant dean. The protests this summer by about three dozen students and university employees seemed to crystalize matters. Whether there is more behind the scenes, only those on campus know. On the same afternoon as Borofsky’s sudden resignation — he didn’t travel to Pierre for the regents meeting, or at least not for the public portions of it Wednesday — continuation of a major grant of $4.6 million from the National Science Foundation was announced for the university. It was also noteworthy, as mentioned at the blog on Wednesday, that the regents needed to add the resignation to its agenda right after an executive session over lunch break and that the interim president, Marysz Rames, a vice president at South Dakota State University, would fill in as interim president. She arrived at the regents meeting in Pierre at some point after 2 p.m. and was introduced to the board and the full room of officials from throughout the university system. Rames, who’s worked in Brookings for SDSU for 27 years, wasn’t asked to make a speech.