With the support of the Attorney General, as well as House & Senate Leadership, Governor Kristi Noem has requested a Supreme Court opinion clarifying the conflicts between serving in the legislature and constitutional prohibitions against being directly or indirectly engagced in contracts with the State of South Dakota. According to the Governor, it’s necessary prior to naming a replacement to Senator Jessica Castleberry, a legislator whose term of office fell victim to the prohibitions after Castleberry’s business accepted money from the state, after an attorney informed her she could legally take those funds:
The governor has formally asked the Supreme Court to issue an advisory opinion regarding what constitutes a conflict of interest for a legislator.
The governor wants further clarification before appointing someone to replace Jessica Castleberry, who resigned from the state Senate after her business was found to be receiving COVID-19 aid.
and..
Schoenbeck, the Senate’s president pro tempore, in his letter suggested the court would be aided by a hearing. The former state’s attorney wrote, “Prior Courts, and their liberal interpretation of a very specific constitutional provision, have created an unfortunate situation this Court needs to address. It is not a pleasant task to have to clean up the work of predecessors, but it is a very important task for our state.”
This is actually one of the more substantial decisions the court has to review, as it has the potential to overturn decades of Attorney General interpretations and blanket prohibitions that have driven more than one legislator from office, besides the most recent instance involving Senator Castleberry.
Any thoughts on how far you’d like to see the court go?
The South Dakota Supreme Court will not be issuing an Advisory Opinion. Governor Noem is asking for something that the Supreme Court has not done, and won’t do. They don’t deal on legal hypotheticals. They apply the existing law to existing civil and criminal cases. Occassionally they may offer guidance to the various federal courts who are uncertain about how to apply South Dakota law. The only way Governor Noem might obtain an “Advisory Opinion” would be to commence civil litigation…a declaratory judgment, for example.
There is a specific provision in Article V of the South Dakota Constitution that authorizes the Governor to make this request, a declaratory judgment action in circuit court is not a necessary predicate for this petition.
Governor Noem is wise to seek clarification. It’s a vital issue – one we need to get right. I agree with Bartels and Schoenbeck, both of whom make a solid case. I expect the Court will offer guidance. But the important question remains: what should the Court say? Reading the text literally – generally the best, most logical, & most rational way to interpret a constitution or statute – could lead to negative outcomes here. As Lee noted, “a literal reading of the ‘indirectly’ language in Article III Section XII would exclude a very large portion of South Dakota’s population.” We need good, experienced, knowledgeable people in the legislature. We need people who understand governance. Disqualifying most of these folks seems counterproductive. On the other hand, we shouldn’t twist constitutional text beyond its rational meaning. While potentially beneficial in this instance, it’s a terrible precedent – one letting activists legislate from the bench, create policy, & “discover” rights the founders never imagined. One solution is an amendment that captures the voters’ general will. While that path is fraught with logistic challenges, it obeys our sacrosanct ethos: “Under God, the people rule.” Ultimately, we deserve a pragmatic policy that prevents “grifters and scallywags” from misusing government positions yet allows as many South Dakotans as possible, men and women from diverse backgrounds, professions, training, and formative experiences, to serve our state as part-time citizen legislators.
“Grifters and scallywags”? They’re the ones I enjoy voting for the most.
Ah, a voter for Trump! Carry on..
Has the SD Supreme Court or Legislature ever defined what “indirectly” means for these purposes? Or, is that what she is hoping will get answered with this request?
Yeah, Mr. Nonymouse. Yeah. Read Article V section 5, young sir.
so there.
Prior bad court decisions? Hard to understand what such clear language means? Legislators may not have “any interest, direct or indirect,” in state money. How is that hard to understand?
Hard to understand, if you are a certain few legislators, apparently. Everyone else knows what “any indirect interest” means. The language was written to prevent mission creep.
Castleberry does not prove the law is broken. That case proved the law works as intended. When, on VERY rare occasions, it is enforced, it is always the same…certain legislators cry that the sky is falling. But remember, this rule only applies to 105 citizens out of the entire population. The ones who want to control the money.
Legislators tried to peel back this prohibition on four separate occasions…putting it on the ballot. It failed every time by increasing margins.
Court should refuse to answer. Schoenbeck is right that she can ask. But Nonymouse is also right….the court will not answer on the merits. Its a waste of time.
In 2013, prior to being appointed as a Representative from District 16, the Governor’s staff asked if I had any business dealings with the State. I acknowledged that I had an insurance policy on some farm buildings for the School and Public Lands. When the Governor called to tell me he was going to appoint me there was one condition, I had to get rid of that policy. I was not allowed to have any contracts with the State, according to the Constitution. I offer this as a point of reference as to how others have viewed and dealt with these issues.
Spot on. Everyone who takes a legislative oath knows. Are there other violators? I believe so.
Part of the problem here is that the scope of government has grown way beyond what the Constitution drafters ever imagined. Federal, State, and other units of government pick winners and losers in all sorts of industries and markets today. Those contracts and conflicts of interest are a reflection of that. So, no big surprise that there are problems. Having said that, the constitutional wording is clear, the case law is consistent. There are no “historical inaccuracies”. IMHO, Jessica Castleberry is just the first domino to fall in this situation.
The auditor could enforce the law as written and intrrpreted by the AG and a host of legislators would change their practices or resign.
How the auditor is supposed to know what legislators do in their business dealings is beyond me.
They are the Auditor. They better damned well know. They carry guns, calculators, and big knives and just need the balls to use them instead of sitting on their ivory chair eating finger foods at taxpayer expense.
The argument (anon at 10:26) that we should rewrite or undo this clause of the constitution because the government is way bigger than when the language was drafted, is upside down. The bigger the government gets, THE MORE YOU NEED THIS RULE…..way more opportunities to “pick a little fruit off the taxpayer tree. The budget is biliions…who will even notice?”
I suspect the people asking for this opinion, have overlooked the biggest word in the clause. That would be the word ANY. May not have ANY interest, direct of indirect. Presumably, the court knows what any means.
If the word ANY was a coin, and you turned it over, it would say NONE on the other side, and that is precisely what the supremes said in the In Re Noem advisory opinion.
The spouse question….”Can a legislator’s spouse work for state government?” is another sleight of hand and short sighted. Open that door, and you will see Governors calling the Speaker or the Majority leader and saying “HEY, Mr. Speaker, how about I hire your spouse to be the Secretary of a Department, at a very tidy salary? And by the way, how do you like my budget proposal this year? And you are going to support my bills at session, right?”
or more likely, the Speaker’s spouse just files an app for the cozy state job.
See the problem? Government by the age old “wink and a nod.” You scratch my back….
So your interpretation is that mortenson’s wife should quit her high paying job at regents or he should quit the legislature? Seems a bit extreme.
Legislators have hated this prohibition for 100 years, but always remember, the taxpayers love this prohibition. Keep your fingers out of the state purse!
At a time when faith in our government has never been lower, the appearance of corruption only adds to the drop in faith.
No legislator is so indispensable it is worth to add to decline in our faith in our institutions.
Not even a close call. “Direct and indirect” should be broadly defined.
What is Jackley’s opinion on the law as is? That would be good to know now.
Yes, the intent of the Constitutional provisions is crystal clear. The provisions prohibit “any direct or indirect” financial gain by a legislator through his position or his business. The provisions are not ambiguous. There is no wiggle room. The framers had plenty of experience with legislative graft during the Territorial Days when self interest dealing and law making were rampant) and in the early days of state government. (Remember Wandering Willie keeping state funds in banks he owned). The framers put these absolute prohibitions in the Constitution for good reason. They had already been burned.
District 35 needs the Senate seat filled today, not a month or two from now. This selected person needs time to get up to speed so that they are somewhat ready for the 2024 session. District 35 seemingly has NO representation now – what with the TnT couple who do nothing for SD and even less for their district – check their voting record and prove me wrong. This District needs sound, rationale and sane representation – especially when you look at all of the development and growth in the area.