Author Archives: Bob Mercer

About Bob Mercer

Bob Mercer is a newspaper reporter in Pierre where I cover state government, issues and politics for the Aberdeen American News and four other separately owned newspapers: the Black Hills Pioneer, the Pierre Capital Journal, the Mitchell Daily Republic and the Watertown Public Opinion. I began covering the Legislature in 1985 and have lived in Pierre since December 1986. I grew up in Wisconsin, worked my way through college, took my first full-time newspapers jobs in Wyoming, and have lived in South Dakota since the summer of 1984 when I moved to Aberdeen to join the American News. I worked for the Rapid City Journal as its state government reporter in Pierre from late 1992 through late 1998. I spent four years as press secretary and a senior aide to Gov. Bill Janklow during his fourth and final term from late 1998 through 2002. I returned to journalism in January 2003 as a self-employed reporter, providing state government coverage to the Mitchell, Watertown, Spearfish, Pierre and, depending on the year, Aberdeen newspapers. In 2008, the Aberdeen American News offered to hire me as full-time member of the AAN staff, with my reports continuing to be available to the Mitchell, Watertown, Spearfish and Pierre papers. The new arrangement has been in effect since January 2009 as the five papers continue their remarkable dedication to their readers and the general public, as the only South Dakota news outlets with a full-time reporter covering state government in Pierre throughout the year. In addition to focusing on the Legislature during the annual winter session and its various activities during the interim periods between sessions, I spend many days throughout the year -- traveling as often necessary -- to cover state government boards and commissions which oversee the state universities, technical institutes, outdoors, water, environment, business, public schools, banking, agriculture, utilities, health care and various other areas of public interest. I purposely don't register to vote because of my profession; the last time I recall voting in a presidential election was the first time, 1976, when I had just turned 18. I think I voted for Jimmy Carter over Gerald Ford. Make of that what you want, just don't make much of it.

Recommended reading: The St. Francis Mission School decision

The state Supreme Court released a 28-page decision Thursday regarding the allegations of child sexual abuse by various persons at St. Francis Mission School. The court generally upheld a 2010 amendment to state law that barred recovery of damages from any person or entity other than the person who perpetrated the actual sexual abuse if such actions aren’t brought by the age of 40. However, the cases in this matter commenced before the Legislature amended the law in 2010. The Supreme Court therefore declined to apply the age limit.

In turn the Supreme Court set about determining whether the record supports any genuine issue of material fact showing the Catholic societies that ran the mission committed intentional criminal acts against the men and women who brought the lawsuits.

The Supreme Court agreed with the circuit judge in the case dismissing the actions brought by seven of the plaintiffs; and remanded actions brought by two plaintiffs back to circuit court for further consideration.

The cases sent back to circuit court involve two women who as young girls were sent by their mother to beg for food. After one of the girls told her father about what had been done to her, they were no longer sent. These incidents reportedly took place in the 1950s and ’60s. The record in the cases shows in some instances that the people who ran the mission knew about abuse taking place.

The Supreme Court ruled in its decision that the two women’s cases must be examined to determine if the three elements of fraudulent concealment were sufficiently present by the people who ran the mission. Retired Justice John Konenkamp wrote the unanimous decision. It is logical and complicated. You can read the full decision here,

Code-talkers memorial could be next

South Dakota’s excellent series of statues memorializing war veterans along Capitol Lake in Pierre could be getting another. The state’s Capitol Complex Restoration and Beautification Commission meets Tuesday and one of the agenda items is a proposal for a memorial for code talkers, the American Indian soldiers who spoke their native languages to relay messages during the two world wars. The state Department of Veteran Affairs and the state Department of Tribal Relations will present the request. There’s also a request to move the Purple Heart Memorial, a tribute erected in 2004 at the Soldiers and Sailors Building (which itself is a memorial to the veterans of World War I, built nearly a century ago through a combination of state and county funds). In 2005, then-Gov. Mike Rounds received a request to relocate the Purple Heart Memorial. Ten years later, there is a new effort to move the Purple Heart Memorial to be with the other war memorials along Capitol Lake. The meeting documents include a letter from 10 years ago in which the writer mentions there was a petition effort seeking the memorial’s transfer, and one of the signers was then-U.S. Sen. Tom Daschle. The meeting is at 9:30 a.m. CT in the legislative conference room on the third floor of the Capitol.

Sorry for being out of service

We’ll return to posting information here on Wednesday, April 15. Server problems held us up Monday and much of today (Tuesday).

By the way, April 15 should be a national holiday recognizing our right to pay federal taxes.


It is better than the alternative, however, of being without income.

And of having no national defense.

Or federal highways.

Or… you get the point.

Governor chooses Wipf Pfeifle for circuit judge

From Janine to Jane — that’s the story for a state judgeship in the Seventh Circuit. This afternoon, Gov. Dennis Daugaard said he has selected Jane Wipf Pfeifle. The seat became vacant when he chose Janine Kern for the Supreme Court seat that had been held by John Konenkamp, who retired. The Seventh Circuit covers Custer, Fall River, Shannon and Pennington counties. And, get this… her husband, Craig Pfeifle, already is a Seventh Circuit judge. This is a first for South Dakota.

Jane Wipf Pfeifle originally was from Wagner. She has her bachelor and law degrees from the University of South Dakota. She has been with the Lynn, Jackson, Shultz and Lebrun firm in Rapid City since 1986. Her specialities have been employment and education and civil matters. She was an associate justice for the Oglala Sioux Nation Supreme Court from 1998 to 2005.

Was it Roundup or Verdict in corn-damage case?

The South Dakota Supreme Court released its decision today in a Clay County dispute about whether a crop-sprayer damaged a neighboring cornfield when  he applied Roundup WeatherMAX herbicide. The court ruled in favor of the applicator, Sun Aviation, and related parties and against the neighboring landowners, Murray and Georgine Lindblom of Wakonda.

The Lindbloms saw their corn wither in the days after the Roundup was applied across the road. They spoke of the damage to another person who contacted the state Department of Agriculture. Ultimately the applicator, Jeff Muhlenkort, agreed with the determination by a state inspector, Virgil Sinning, that Muhlenkort didn’t conform to the label requirement that the herbicide shouldn’t be applied in wind conditions greater than 10 mph. The wind was found to have exceeded that speed at times on the evening the Roundup was applied. Muhlenkort agreed to pay a $385 settlement so the department didn’t pursue a civil penalty against him.

The Lindbloms sued for damages. Muhlenkort’s defense presented different wind information that wasn’t part of the department’s report. The Lindbloms relied on the department report and didn’t contest the new information showing the wind speeds were less than 10 mph. Mulhenkort’s defense also presented information showing the Lindblom cornfield received a treatment of another herbicide known as Verdict approximately five days after planting. Verdict comes with the warning there could be late emergence or stunted growth in cool conditions or if there is excess moisture. Testimony was presented in circuit court there was standing water in some of the cornfield. The Lindbloms also had Roundup WeatherMAX applied to their soybean field next to the cornfield.

The Supreme Court deferred to the decision of Circuit Judge Steven Jensen, who had ruled against the Lindbloms. Wrote Chief Justice David Gilbertson for all five justices:

The Lindbloms were required to prove more than damage to their corn or the mere presence in their field of the same type of herbicide sprayed on Hybertson’s field; they were required to prove Muhlenkort negligently sprayed herbicide. Because there is evidence to support the circuit court’s conclusion that Muhlenkort was not negligent, the court did not err in
concluding the Lindbloms failed to sustain their burden.

The chief justice added in conclusion:

There was sufficient evidence for the circuit court to conclude Muhlenkort did not apply the herbicide in a manner inconsistent with its label requirements, or otherwise negligently. Therefore, the circuit court did not err, and the Lindbloms were not entitled to recover damages.

The full decision can be read here.

Independents grew faster than all parties

From January to April, voter registration increased faster for independents in South Dakota than for Republicans and Democrats combined. The numbers as of April 6 compiled by the state elections office show:

Republicans grew by about 1,100 to 242,163;

Democrats declined by more than 200 to 175,514;

Independents rose by more than 1,900 to 105,784;

Constitutionalists increased by 6 to 582;

Libertarians increased by 41 to 1,443; and

Americans Elect added 2, rising to 12.

In other words, more voters chose to be independent than to be Republican (or any other party). And more voters chose third-party affiliations than to be Democrats.

What happened to the Executive Board?

Lance Carson, R-Mitchell.

Charlie Hoffman, R-Eureka.

Isaac Latterell, R-Tea.

Larry Lucas, D-Mission/Pickstown.

Ryan Maher, R-Isabel.

Betty Olson, R-Prairie City.

Deb Peters, R-Hartford.

Deb Soholt, R-Sioux Falls.

Craig Tieszen, R-Rapid City.

Kathy Tyler, D-Big Stone City.

Steve Westra, R-Sioux Falls.

The above lawmakers served on the Legislature’s Executive Board in 2014 but aren’t on it this year. Tyler lost re-election. Carson, Hoffman, Lucas and Maher retired. The rest either didn’t want to be on it again or didn’t have the support to return.

What we have are a handful of leaders returning. They are Sen. Corey Brown, R-Gettysburg, who is Senate president pro tem; House Republican leader Brian Gosch of Rapid City; House Democratic leader Spencer Hawley of Brookings; and veteran Sen. Phyllis Heineman, R-Sioux Falls.

The new members are representatives Jim Bolin, R-Canton; Don Haggar, R-Sioux Falls; Roger Hunt, R-Brandon; Timothy Johns, R-Lead; Fred Romkema, R-Spearfish, and House Speaker Dean Wink, R-Howes; and senators David Omdahl, R-Sioux Falls; Scott Parsley, D-Madison; Senate Democratic leader Billie Sutton of Burke; and Jim White, R-Huron. The Senate will need to choose another member because of the resignation from the Legislature last week by Senate Republican leader Tim Rave of Baltic.

The past membership of the Executive Board presided over the many changes made in personnel and management for the Legislative Research Council staff in the 2013-2014 term. The project would have tested anyone’s endurance. The old E-Board also introduced the legislation that established the new process for choosing the board’s chairman and vice chairman. Those slots now automatically rotate annually between the House speaker and Senate president pro tem. The board in the past selected its chair and vice chair. The last to hold the spots under the old approach were Maher as chair and Carson as vice chair.

Twins will finish at 82-80

That’s my forecast for Minnesota’s 2015 record, one day before the team’s Major League Baseball season opener on Monday afternoon at Detroit. New manager Paul Molitor is putting his best available team on the field starting with game one. Looking at Torii Hunter’s 2014 numbers with Detroit, I’m convinced he’ll perform as well back in a Twins uniform this season. Joe Mauer will find his upside again at bat. I still believe in Ricky Nolasco. Phil Hughes is four victories from becoming a 20-game winner at the top of the rotation. The Twins showed last season that their lineup can score. So, yes, generally I’m more optimistic about the Twins overall than I was two weeks ago. I could feel the change begin on April Fools Day.

Ha. But here’s the catch. Actually, two.

The Twin play against their four division rivals — Detroit, Kansas City, Chicago and Cleveland — in 28 of their first 35 games. We will know by May 15 whether the Twins are for real or not in their division.

Second, they don’t reach a true warm-weather stadium until their trip to Texas for a three-game series starting June 12. (I don’t count Kansas City and Seattle in mid-April as warm-weather sites). So we’ll know by mid-June whether the Twins have built a cold-weather lineup.

Because that’s what needed to win outdoors at Target Field in April and May.


Attorney general gives opinion on science standards

State Sen. Phil Jensen, R-Rapid City, asked state Attorney General Marty Jackley for an official opinion on the legality of the state Board of Education adopting the proposed science standards for K-12 public schools in South Dakota. Jensen made the request on behalf of 35 legislators. The answer from the attorney general is that, as a matter of law, there isn’t a violation. The Legislature adopted a state law in 2014 regarding standards. It is the law in question regarding the current proposed standards. The law says:

Prior to July 1, 2016, the Board of Education may not, pursuant to § 13-3-48, adopt any uniform content standards drafted by a multistate consortium which are intended for adoption in two or more states. However, this section does not apply to content standards whose adoption by the Board of Education was completed and finalized prior to July 1, 2014. However, nothing in this section prohibits the board from adopting standards drafted by South Dakota educators and professionals which reference uniform content standards, provided that the board has conducted at least four public hearings in regard to those standards.

The conclusion reached by the attorney general in his official opinion is the board doesn’t appear to have violated the law. But he leaves open two related questions:

Certainly, the BOE cannot, under the first sentence of SDCL 13 3 48.1, merely adopt uniform content standards such as the “Next Generation Science Standards”. However, the BOE may, provided it has conducted at least four public hearings concerning the proposed standards, adopt standards drafted by South Dakota educators and professionals which reference uniform content standards, as provided by the last sentence of SDCL 13-3-48.1.

Questions of fact as to whether the Proposed Science Standards are standards prepared by South Dakota educators and professionals that result from reference to uniform standards from other sources would need to be determined by a court. Further limitations on the adoption of Science Standards would need to be addressed by our Legislature. 

The state board plans a final public hearing May 18 in Aberdeen. That hearing would complete the series of four required by state law to be held for standards in Sioux Falls, Rapid City, Pierre and Aberdeen. The board’s next steps would be to make any changes and consider adopting the rules. The standards under consideration are here.

Another grassfire closes another highway w/updates

SDDOT reports S.D. 20 will remain closed between Buffalo and Reva through 12 p.m. MDT Friday because of a grassfire. The conditions website is here. The Buffalo intersection is with U.S. 85. The Reva intersection is with S.D. 79 South. On Wednesday, U.S. 212 was closed for hours in the Lebanon area because of a grassfire.

UPDATE: SDDOT just announced closures of a segment of U.S. 212 this afternoon (Thursday) and a segment of S.D. 47 in the same area of the grassfire that shut down part of U.S. 212 on Wednesday. The closures this afternoon are U.S. 212 between Gettysburg and S.D. 47, and S.D. 47 between U.S. 212 and S.D. 20 until further notice.

SECOND UPDATE: SDDOT said Thursday night the highways are open again.