Gov. Daugaard Seeks Advisory Opinions On Senate Bill 136 And Senate Bill 159

daugaardheader DaugaardGov. Daugaard Seeks Advisory Opinions On Senate Bill 136 And Senate Bill 159

PIERRE, S.D. – Gov. Dennis Daugaard has requested advisory opinions from the South Dakota Supreme Court on Senate Bill 136, “An Act to permit certain cropland along lakes, rivers, and streams to be assessed as noncropland” and Senate Bill 159, “An Act to provide a tax credit to insurance companies that contribute to an organization providing educational scholarships to certain students.”

Both bills were passed by the South Dakota State Legislature and are currently under the Governor’s consideration.

Article V, section 5 of the South Dakota Constitution authorizes the Governor “to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power.”

“Questions about the constitutionality of each of these bills were raised during the legislative debates,” said Gov. Daugaard. “My request for advisory opinions will allow these questions to be resolved before I decide whether to sign or veto these bills.”

The Governor is required to take action on both SB 136 and SB 159 by Saturday, March 26, 2016. The state Legislature will return for a final day on Tuesday, March 29, to consider any vetoes.


21 Replies to “Gov. Daugaard Seeks Advisory Opinions On Senate Bill 136 And Senate Bill 159”

  1. Mark N.

    An Advisory Opinion on SB 159 is an easy one. The South Dakota Constitution in Article VI Sec 3 and Article VIII Sec 16 prohibits the State from giving money to sectarian schools. It is a well known principle that what cannot be done directly because of constitutional restriction cannot be done indirectly through legislation that accomplishes the same result. Because the State cannot directly fund scholarships to private religious schools, it cannot do that indirectly by giving a tax break to an insurance company that provides the scholarships instead. The South Dakota Constitution is clear on this point, and the supporters of this bill are simply ignoring it with what they believe is a clever way around it.

  2. Lee Schoenbeck

    Actually, almost every court that has addressed the Blaine Amendment issue has come down squarely against your conclusion for a kind of obvious reason. When dollars are in your pocket, they don’t belong to the government. A tax break allows a private entity to retain their private dollars, they never become government dollars.

    Now let’s assume your theory s true. It means that every dollar in your wallet is really the government’s, because you will eventually owe the government some of them. Kind of a scary Huge Government view of the world

    The Court may come down on your Huge Government side, but they would be in a very small minority of courts in America

    1. Mark N.

      Rep. Schoenbeck,
      I agree with you on the philosophical point that the money in my wallet is not the government’s money until it is lawfully taxed. However, that is not the situation here. The State has levied a tax on insurance companies. SB 159 relieves them of some of that tax burden if they provide scholarships to students. If the insurance wants to “keep” its money, it has to spend that money on scholarships. So the insurance company has only two choices of what to do with those dollars: either give them to students pursuant to rules the State has established or give them to the State. Either way, the State is in control of the dollars, and the insurance company has lost the freedom to do with those dollars as it pleases. We cannot hide behind the idea that because the dollars never pass through the State’s treasury that they are not government dollars.

  3. Troy Jones


    Does the SD Constitution prohibit private/parochial students from riding the public school bus to school?

    Does the SD Constitution prohibit public school districts from loaning textbooks to private/parochial students?

    Does the SD Constitution prohibit private/parochial students from playing sports in public school gym’s and fields?

  4. Troy Jones

    Does the SD Constitution prohibit the State from contracting and appropriating money for hospital services from Avera?

    Does the SD Constitution prohibit the State from building turn lanes into churches, sectarian schools, or religious hospitals?

  5. Charlie Hoffman

    Insurance companies, schools and churches are all business’s in one way or another. Up until now in South Dakota taxes have only gone to one of them. SB 159 rewrites all the rules of Separation of Church and State.
    A private school of Wahhabism will qualify for scholarships.

    1. annon

      Perhaps you could quote me chapter and verse of your “separation of church and state rule”.

  6. Troy Jones


    Does public schools loaning textbooks to private school students, riding on the public school bus, or allowing state employees to go to Avera Hospitals “rewrite all the rules of Separation of Church & State?”

    This bill doesn’t enrich private schools. The amount of the scholarship doesn’t cover the full cost of the educating these children and will increase the need to raise private donations to cover the difference to educate these children.

    I never cease to be amazed with the vim, vigor, and willingness to assert the sky is falling innuendo with which opponents express themselves. This is nothing more than giving lower income parents an opportunity to choose a different education option for their children. Why is the argument centered on institutions (public schools vs. private schools) and not the children? Is there something underneath the surface I’m not getting and people aren’t saying?

  7. Charlie Hoffman

    Troy I think of the worst case scenario in every bill first. Then if none can be found run with it. A couple million today in any government program turns into tens of millions and more in time. If South Dakota wants to fund both public and private education game on. Obviously I’m in the minority here.
    Some surely may have underlying reasons for going nay on this but my objection is purely driven by future cost. And this is unprecedented. It is a whole new chapter.

  8. Troy Jones


    1) Waving Wasabi flag is absurd (the school has to be certified and there isn’t a single wasabi school in the nation certified) and inflammatory.

    2) This bill based on conservative assumptions is revenue neutral. Why wave a flag that is misleading?

    3) It is not unprecedented. It is done across the nation.

    4) And “it is a whole new chapter” of what? Giving parents and children choice like open enrollment? What is it you fear? We are talking about something that affects less than a half percent of the K-12 students in the state.

    1. The Lunch Monitor

      I thought wasibi was that green stuff they serve with the soy sauce at sushi joints…

  9. Charlie Hoffman

    Troy I surely might be all wrong on this. I never heard any of the testimony and it might end up being exactly what was intended of it. Time will tell. I’d bet the bill gets DD’s signature.

  10. Troy Jones


    I’m so confused as I see arguments (the mechanism is bad) I don’t see very often. The government by tax credits and deductions gives taxpayers choices all the time:

    1) Choose to buy a house vs. rent and we will give you a break on your taxes.
    2) Invest in research and development or training your employees, we will give you a break on your taxes.
    3) Give to the charity of YOUR choice, we will give you a break on your taxes.
    4) Have another child, we will give you a break on your taxes.
    5) Save for your child’s college education, we will give you a break on your taxes.

    At its core, what is the reason this choice given to insurance companies (and as a by-product) should be denied?

    1. Mark N.

      (I didn’t see this comment before posting my previous one)
      The answer is because this by-product is specifically prohibited by the state constitution. Yes, state and federal governments incentivize conduct all the time through the tax code. The government chooses to use the tax code because it is a simpler method of creating the incentive. But no constitutional provisions prohibit the government from writing checks directly to people or institutions for the activities you mentioned. Such is not the case for sectarian schools. The government cannot write a check directly to them. Thus, it cannot indirectly write them a check by giving tax breaks to insurance companies who write the check in their place.

      1. Anonymous

        –Thus, it cannot indirectly write them a check by giving tax breaks to insurance companies who write the check in their place.

        Actually, the state can offer such breaks. Mitchell v. Helms (2000).

        Furthermore, the US Sup Ct. is well aware of the anti-Catholic underpinnings of the the Blaine Amendments (found in SD’s constitution Arts. 6 & 8), and are very likely to quickly dismiss any legal reasoning based on that. Zelman v. Simmons Harris (2004).

  11. Mark N.

    To respond to your comments above, you know the answer to your first three questions because they have either been answer by the SD Supreme Court or the people through the ballot box (which is why you picked those examples). The Court has ruled that private school students can play against public school students in public school gyms. The people amended our state constitution to specifically authorize the loaning of school textbooks to private school students, and in 2004 the people specifically rejected a constitutional amendment to authorize busing of private school students.

    Your question about providing turning lanes into schools or churches is a strawman argument. No one is arguing that general road maintenance is a method of aiding sectarian institutions. Your question about Avera is a more interesting one, and I can see arguments on both sides of that, but again, that’s not what we are arguing here.

    I’m not arguing that the sky is falling. I’m arguing that we have a constitution and that we should follow it. Both the text and the intent of the provision is clear. Whether the money is sent directly to the school or funneled through the student through a scholarship, the result is the same.

    I give the sponsors of this measure credit for confining it to low income students (although there are some flaws in the regard), so that it actually provides new opportunities that weren’t previously available. However, the State should focus its efforts on providing the best public education possible. Tax dollars should not be diverted to private schools that can still be selective in the students they choose to admit.

  12. Troy Jones


    Maybe this is where we disagree: “the text and the intent of the provision is clear. If it were so clear, public schools loaning textbooks to students at private schools or allowing private school students riding the public school bus, or police departments having police resource officers at private high schools would also be clearly in violation of the State Constitution.

    But I do agree with your phrase “the result is the same” because like the above I list, the government is fostering the education of its young people.

  13. Troy Jones


    Anonymous 1:45 p.m. is exactly correct. Any and all “intent” surrounding the Blaine Amendment grounded in the anti-Catholic (which is now broadened to anti-Christian) biases is to be ignored as per the US Constitution and Supreme Court. In fact, almost all religious liberty judicial advocacy groups assert the intent of the Blaine Amendment was so blatantly anti-Catholic it only remains Constitutional on textual matters interpreted most narrowly (vs. the broad interpretation you are asserting which opened up the ability to do what I list in my prior posts.

  14. Mark N.

    First, in response to Anonymous 1:45, the two US Supreme Court cases you cite were about the Establishment Clause of the US Constitution. I agree that a voucher program does not violate that clause. But this case won’t be decided on that basis. The South Dakota Supreme Court will decide it based on the South Dakota Constitution, which it has said is more restrictive than the Establishment Clause. See McDonald v. Yankton Ind. Sch. Dist., 246 N.W.2d 93 (1976). In that case, the court said that the clauses I referenced in my first post above “prohibit in every form, whether as a gift or otherwise, the appropriation of the public funds for the benefit of or to aid any sectarian school or institution.”

    Second, Troy, I agree that we do disagree on the clarity of clauses. The loaning of textbooks was found to be unconstitutional by the SD Supreme Court. It took a constitutional amendment to fix that. I don’t believe that busing or school resource officers have ever been litigated, but the voters in South Dakota declined to expand the constitution to explicitly permit busing.

    The “intent” I was referring to was the general intent that state money shouldn’t go to religious schools. I think you are putting too much stock in the anti-Catholic background to the Blaine Amendment. In the cases in which the SD Supreme Court has interpreted our constitution, they have never mentioned it, and I highly doubt that they would because it is not provable as a motivation of our framers. The Court will stick to its text and legislative history as they have in the past.

    And to be clear, my opposition to SB 159 has nothing to do with any “anti-Christian” bias. I go to church every Sunday. My opposition is based mainly on the constitutional argument I have made above. As a policy matter, I’m not completely opposed to voucher programs that include religious schools, but we have to follow the constitution first.

    1. Anonymous

      –See McDonald v. Yankton Ind. Sch. Dist., 246 N.W.2d 93 (1976).

      The finding/result in McDonald was clearly overturned by the ratification of and inclusion of Art. VIII, § 20 of the SD Constitution, enacted in 1986.

      A little knowledge is a dangerous thing.

  15. Troy Jones

    Two things from SCOTUS:

    1) This is allowable if it is the decision of parents and not required by the state: “Any aid … that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.”

    2) Anti-Catholic bias not provable: “Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. Cf. Chicago v. Morales, 527 U.S. 41, 53—54, n. 20 (1999) (plurality opinion). Although the dissent professes concern for ―the implied exclusion of the less favored,‖ post, at 1, the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to ―sectarian‖ schools acquired prominence in the 1870‘s with Congress‘s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ―sectarian‖ was code for ―Catholic.‖ See generally Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992). Notwithstanding its history, of course, ―sectarian‖ could, on its face, describe the school of any religious sect, but the Court eliminated this possibility of confusion when,
    in Hunt v. McNair, 413 U.S., at 743, it coined the term ―pervasively sectarian‖–a term which, at that time, could be applied almost exclusively to Catholic parochial schools and which even today‘s dissent exemplifies chiefly by reference to such schools. See post, at 20—21,
    39—41 (Souter, J., dissenting).
    In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now.