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.

Attorney general provides legal immunity for law enforcement under Marsy’s Law interpretation

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.

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PUC staff wants to review utility’s solar costs

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.

Legislators considered a special session on IM 22 w/update

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.

USFWS negotiates with farmer on wells

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.

Sen. Bill Johnson, 1930-2016

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.

Trump and South Dakota

In the months ahead, as President-elect Donald Trump’s new administration settles into place, the time will come for decisions on federal appointments for state-level posts such as U.S. attorney, farm agency directors and U.S. marshal. Traditionally the senior senator of the new president’s political party has sway on these. But that might not be true in 2017.

Whether Republican U.S. John Thune and Republican Gov. Dennis Daugaard have any say seems unclear and perhaps doubtful. Daugaard and Thune tweeted on an October Saturday that Trump should leave the race, after his comments about women.

At that time, the growing belief was Trump would lose to Democrat Hillary Clinton. Instead Trump won, nationally and in South Dakota. He also won the Republican primary in June in South Dakota. Thune, to my knowledge, didn’t endorse Trump at any point in the campaign until after Trump became the nominee. Daugaard didn’t either until after Trump was the nominee.

That leaves Republican U.S. Sen. Mike Rounds. He endorsed former Arkansas Gov. Mike Huckabee for the Republican presidential nomination; Huckabee had been an early backer of Rounds in his 2014 primary for the Republican Senate nomination. Rounds didn’t speak ill of Trump. Huckabee eventually supported Trump. Rounds endorsed Trump in May. During the October uprising against Trump, Rounds stuck with Trump but said the comments were deplorable.

Meanwhile Republican U.S. Rep. Kristi Noem went with Florida U.S. Sen. Marco Rubio for the Republican presidential nomination. There was a bitterness between Rubio and Trump. Noem endorsed Trump after Rubio dropped out. She stuck with Trump in October but criticized his repulsive language about women. Noem, whose positions align in many ways with Trump, announced days after the Nov. 8 elections that she will run for governor in 2018 rather than seek re-election.

She’ll likely remain a reliable vote for Trump policies in the Republican-majority House. More essential for Trump might be the votes of Thune and Rounds in the Senate, where Republicans will hold a 52-48 majority.

All of which points to yet another stroke of good fortune politically for Mike Rounds when it comes time for federal appointments in South Dakota.

Never mind the lawsuit. Look at sections 31 and 32.

Initiated Measure 22 does many things including limit gifts to a legislator or family member to $100 per year from a lobbyist for a company or group. Employment can be argued is a gift under IM 22. There’s part of the rub.

Section 31 of IM 22 establishes the gift limit. Section 32 establishes an ethics commission that the governor is supposed to appoint by Jan. 31, 2017. Section 31 says the commission is supposed to oversee the gifts limit.

The Legislature starts its 2017 session Jan. 10. That’s before the commission must be appointed. The Legislature would have 12 working days before the commission deadline.

If there are changes that Republicans and Democrats can agree upon in the House and the Senate, such as a definition of gift that doesn’t cause people to give up their jobs or their legislative seats, there would be time to make the changes.

Could the changes carry an emergency clause, so they took immediate effect upon the governor’s signature, and therefore be immune to a referral? That would be up to the legislators to argue.

But putting many people out of their jobs or forcing their resignations from the Legislature could be construed as an emergency. It certainly would be in those households hit by the $100 limit.

The Legislature is scheduled to meet for its final day March 27. Normally state boards, commissions and agencies don’t set rules during the legislative session.

If the commission would break from accepted current practice and work on the rules during legislative session, the commission would need to work at a fast pace to be done before March 27.

The commission will need time to discuss rules, formally propose the rules, hold a public hearing and adopt them.

Ultimately the Legislature’s rules review committee would need to see whether the commission followed state laws for setting rules. So those three representatives and three senators could have the final say. The rules review committee typically doesn’t meet during legislative session.

That means April at the earliest.

Some might call this a loophole. But it might be preferable to legislators asking the South Dakota Supreme Court for some kind of action that prevents IM 22 from taking effect.

It’s possible that three of the five justices would be willing to deny the will of the majority of voters who approved IM 22 on Nov. 8.

But it seems like a hard swallow.

Restricting scope of prison and jail impact statements

One of the transparency steps taken by the Legislature in the past few years was requiring official estimates of the effects that additional criminal penalties could have on prison and jail populations. The Legislative Research Council’s director, Jason Hancock, now has backing from the Legislature’s Executive Board to try to reduce some of that workload. He proposed legislation that would require the impact statements only for felonies; legislators wanted the work to continue for Class 1 misdemeanors too.

If the full Legislature agrees, the estimates wouldn’t be required any longer for Class 2 misdemeanors  The law, which was originally passed in 2013 and modified in 2015, currently requires the impact to be estimated for any legislation “that increases the period of imprisonment authorized for an existing crime, that adds a new crime for which imprisonment is authorized, that imposes a minimum or mandatory minimum term of imprisonment, or that modifies any law governing release of a prisoner from imprisonment or supervision.”

The proposed legislation also would eliminate the state Bureau of Finance and Management as one of the two agencies that could perform the estimates. The Legislative Research Council would be solely responsible under the proposal. The estimates are required to be completed before legislators can consider the bill or an amendment.

Rep. Bob Roe, 1954-2016

The funeral service will be held Tuesday, Nov. 22, for former state Rep. Bob Roe. The Brookings Republican died Nov. 18 at age 62. Flags in South Dakota are to be lowered to half-staff on Tuesday by order of Gov. Dennis Daugaard to recognize his legislative service.

Roe served during a different political climate at the Capitol. He spent 11 sessions in the state House of Representatives, after then-Gov. George S. Mickelson appointed Roe to a vacant House seat for Brookings County on Nov. 28, 1989, to replace Dean Krogman, R-Brookings. (Krogman entered the Legislature through a similar appointment, by then-Gov. Bill Janklow, on July 12, 1984, to fill a vacancy left by the resignation of Sheldon Cotton.) By being elected in 1992, he became subject to South Dakota’s new term-limits amendment that voters passed for the state constitution that year. He came up against the limit of election to four consecutive terms in the same chamber with his 1998 re-election and didn’t run in 2000.

It takes a lot of research through the legislative records to capture the essence of a legislator who served as long as Roe. I won’t bore you with all of that. Looking just at his final term, it’s worth noting that he was chairman of the House Commerce Committee and held a seat on the House State Affairs Committee, a panel where leadership resides from both parties. He was a true player within the House leadership even though he didn’t hold one of the big titles.

As for lasting impact from that final term, Roe was the House lead sponsor on the legislation that created an insurance fraud unit in state government; the prime sponsor was then-Sen. Dennis Daugaard. The measure, SB 75, initially failed in the Senate to get a two-thirds majority that necessary. Eventually Daugaard won a reconsideration vote and then picked up eight ayes from senators for passage 29-6. In the House, SB 75 rolled through 60-6.

In 2000, Roe was six years ahead of his time regarding renewable energy production; his Commerce committee killed his legislation HB 1232 that called for a net-metering system for billing customer-generators for producing electricity from renewable sources, such as solar and wind, that they could sell to their utilities. The Legislature in 2006 gave the Public Utilities Commission authority to establish rules for such systems.

Bob Roe loved hunting and the outdoors generally. A financial advisor, he was a courteous, friendly person by nature. The cause of his death was pancreatic cancer. He served under three very different governors in George Mickelson, who came out of Brookings and was a reformer of sorts on the environment and saw the need to add state loans to help economic development projects; Walter Dale Miller, who ascended from lieutenant governor upon the deaths of Mickelson and seven other men in the 1993 state airplane crash; and then Bill Janklow who made property-tax relief the cornerstone of his return as governor in 1995.

Roe cast his last votes as a legislator during the special session called in late December 2000 by Janklow regarding Janklow’s proposed sale of the state cement plant. Roe voted aye on all three major pieces of the package: SB 1, the bill that made the technical changes needed in state law; SCR 1, the concurrent resolution through which legislators gave their aye or nay on the sale itself; and SJR 1, the joint resolution seeking a public vote on the constitutional amendment that was necessary to put the proceeds in a permanent trust fund whose earnings could be used for public purposes.

Bob Roe served with grace during some important times in South Dakota’s political history. His was a life worth noting and remembering.