At some point in the weeks ahead, Gov. Dennis Daugaard will announce his choice to replace retired Justice Lori Wilbur on the South Dakota Supreme Court. Then Chief Justice David Gilbertson will formally announce his retirement. In turn, Justice Steven Zinter presumably succeeds to the chief justice’s chair. Justice Zinter is the next longest-serving member of the high court.
All five justices agreed this week with Justice Janine Kern’s opinion Wednesday that set aside the six perjury conviction for Annette Bosworth and upheld Bosworth’s six convictions for filing false or forged instruments. The opinion includes a semi-concurrence from Justice Zinter in which he disagreed with some aspects of the court’s majority. Here is an excerpt:
“Bosworth’s petitions were not what they purported to be because
Bosworth verified petitions as the circulator even though they had been circulated
by someone else. Nor did they have the qualities of what nominating petitions
purport to have because they did not contain the signatures of voters the circulator
obtained. That type of falsehood was more than just an untrue statement of fact.”
Bosworth was a candidate for the Republican nomination for the U.S. Senate election in 2014. State law required that she be present when registered Republicans signed her candidacy petitions. A physician, she was on a medical mission to the Philippines when the leader of a Hutterite colony in South Dakota circulated petitions on her behalf and in some instances signed the petitions for the voters at the colony. Those petitions were among the stack that her consultant, Patrick Davis, filed with the South Dakota Secretary of State office.
Most of the Republican voters in the 2014 U.S. Senate primary didn’t support her. She received 4,283 votes. That number was 5.75 percent of the total cast in the five-candidate contest for the Republican nomination. The winner, former Gov. Mike Rounds, received 41,377 votes, or 55.54 percent. Rounds went on to defeat Democrat Rick Weiland in the November general election. State Attorney General Marty Jackley meanwhile obtained a grand jury indictment against Bosworth a few weeks after the primary.
The five justices agreed Wednesday on Kern’s main point in tossing the perjury convictions. She said state law defined a proceeding or action more narrowly than Jackley’s application of the law. She wrote: “Signing a nominating petition under a written oath before submitting it to a state authority is not a statement made in a proceeding or action under SDCL 22-29-1.” That point now becomes something for the Legislature to consider in the 2018 session.