SDPB is playing live video from the Senate today. As I listen to Senator Lance Russell (R-30/Hot Springs) ask whether South Dakotans can trust the Legislature to keep any of its promises, I notice that, over his shoulder, out the window, one can see it snowing in Pierre.
Senator Russell is expressing his concerns about SB 172, the bill to build the animal disease lab at SDSU.
Senator Stace Nelson doesn’t want to get snowed.
“Do-Guard your wallet,” says Senator Nelson, lamenting the taxes he sees disguised as fees in SB 172. He wants to tap the REDI Fund to pay for the building. Senator Deb Peters says the REDI Fund is for revolving loans to help private business development, not fund state buildings.
We folks watching at home can’t really follow the debate, since the conference committee reports on SB 176 and other important bills (like SB 176, the Governor’s anti-protest bill, targeting those darned Indians who make noise about pipelines) aren’t available online. So we watch the snow out the window and wonder how much shoveling we’ll have to do later.
My co-host Spencer Dobson and I talk about Neal Tapio’s pro-Trump/anti-refugee resolution, the Legislature’s drone control bill, Governor Daugaard’s protest quashing bill, and the medical marijuana and industrial hemp bills. We also spend a little time talking about how I got out of being a Republican and into blogging.
For those of you reading along, here are the notes for today’s show:
SCR 15, a Resolution “Commending President Donald J. Trump in his commitment to keeping the country safe from radical Islamic terrorism”
SB 95, an Act to “add cannabidiol to the list of Schedule IV controlled substances and to exclude it from the definition of marijuana,” and HB 1204, an Act to “authorize the production and sale of industrial hemp”
Of course, nobody got this amendment before this morning’s hearing, so the numerous opponents who drove to Pierre to testify against SB 176 had little opportunity to analyze the impact of the amendment and adjust their testimony accordingly. Even Representative Spence Hawley (D-7/Brookings) said he had to lay the amendment side by side with the existing bill text and spend fifteen minutes trying to line up the strikes and insertions to figure out what was happening.
Here’s my read of what happens:
The new concept of “public safety zones”—everything within a mile of a protest or other event that the Governor wants to shut down, in which the Governor can exercise emergency powers to seize property and forcibly remove property owners and their guests for six months—is gone (Sections 1 and 2 stricken).
Stiffer penalties for trespassing and the new crime of “aggravated criminal trespass are gone (Sections 3, 4, 5, and 6 stricken).
The Governor can still tell the Commissioner of School and Public Lands to remove any groups larger than twenty from land under that office’s supervision if those groups may damage the land or hinder lessee’s use thereof (Section 7 remains, untouched).
The Chief Justice can still authorize out-of-state lawyers to represent defendants, though now on the condition that the county is experiencing a surge in criminal cases that its local defenders can’t handle (Section 8 amended).
The Governor still wants to make it a crime to stand in the ditch or any such highway right of way (Sections 9 and 10, unchanged). Conceivably, given the wording about “the presence of any person standing outside of a motor vehicle” could make it a crime for me to pause on the shoulder in the middle of a bike ride for a snack break or to tighten down my gear.
The July 1, 2020 sunset clause is gone (Section 11) and replaced with a section making it a Class 1 misdemeanor to enter a disaster area (no longer tied to protest targeted by SB 176) and a section declaring an emergency, making SB 176 take effect immediately, and insulating it from public referral.
The removal of the sunset clause suggests that the Governor realizes this extension of gubernatorial power could be useful beyond construction of Keystone XL.
Most importantly, the retention of the new restrictions on roadside activity signal that the Governor’s people have decided that cracking down on roads (because where will all those protestors park?) will throw plenty of logistical complication into the protests they want to hamper without the risk of judicial review pulling the plug on the martial law provisions in the previous text of SB 176.
House State Affairs approved the hoghoused SB 176 this morning along party lines, 11–2. It now goes to the full House, then, if approved back to Senate for concurrence in amendments.
Hold on, Senator Solano: let’s think through how calling a special session could check a gubernatorial abuse of power. To convene a special session, you need to get signatures from two thirds of the members of each chamber. Given that SB 176 targets tribally led protests of the looming Keystone XL pipeline, that means you need to find 24 Senators and 47 Representatives who are willing to stand with Indians against TransCanada. Legislative history on pipeline issues suggests the chances of fielding those numbers are pretty thin.
Even if you can gather the 71 signatures necessary to convene a special session, it’s going to take a few days to complete the petition and get everyone to Pierre. The Governor can arrest a lot of protestors, seize a lot of private property, and evict a lot of homeowners and landowners from the “public safety zone.” Your special session can’t act fast enough to keep the Governor from doing serious harm to the Constitutional rights of thousands of South Dakotans.
Your special session can’t order the Governor to stand down. You can write and pass a new law repealing the Governor’s emergency powers, but you’ll have to wrangle a bit to apply that law retroactively to the gubernatorial decision that provokes your special session.
The overreaching Governor will have at least five days to sit on the bill before he has to choose between standing his ground with a veto or surrendering and letting the Legislature take away his power. However, per Article 4 Section 4, to keep that wait period to five days, you legislators will have to remain in special session in Pierre, or at least recess with a clear declaration that you will come back within five days to continue. Then you’ll have to make sure that the two thirds who were willing to call the special session don’t waver and instead maintain their willingness to override the veto.
And if we’re dealing with a Governor willing to commit true abuses of power, consider the possibility that he could use SB 176 to snarl your special session. Suppose the Governor you challenge with your special session reads Section 1 of SB 176 and declares that your special session is “an event that may consume significant public resources,” (that’s an easy conclusion) “poses a threat to public or private property,” (take away the Governor’s emergency powers, and the protest he’s shutting down may swell into violence) “and poses a threat to the health and welfare of the public,” (ditto). Under SB 176, the Governor could reach a conclusion that the Legislature poses a threat to public safety and declare the Capitol and the one-mile zone around it a public safety zone, where he can have Highway Patrol set up roadblocks, check IDs, detain folks coming to testify in favor of whatever legislature you are proposing, and create all sorts of other complications to slow down or stop your attempt to check his power. If the Governor is willing to declare martial law to shut down Constitutionally protected protest, might he not also be willing to take extraordinary measures to stop the Legislature from taking away his power?
Senator Solano, your plan to pass SB 176, then check abuse of power by calling a special session sounds like saying, “Let’s lift the sanctions on Iran and let them develop nuclear technology. If they do build a bomb, we’ll just send in special forces to destroy it.”
Instead of giving the Governor too much power, then hoping the Legislature can take extraordinary measures to check abuses of that power, why not just prevent any abuse by not giving the Governor that excessive power in the first place?
The Legislature shall pursue opportunities to enhance the state.
The carcass bill is a vehicle legislators can use to spring their last-minute ideas well beyond the bill filing date, which this year was February 2. Carcass bills violate transparency, allowing legislators to bring new legislation to committee or even to the floor without full public notice or testimony.
I can conceive of emergency situations that could arise in the last days of the Session that could require immediate Legislative action. However, to address such last-minute needs, I would suggest legislators pay a price: if they fail to anticipate a problem and submit an appropriate bill by the normal filing deadline, allowing the public and their colleagues to review the proposal before it surfaces in committee or on the floor, legislators should have to hoghouse an existing bill. If a bill is so important that it has to be introduced more than a month after the deadline, in the rush of the final week, then the sponsors should have to decide which existing bill they are willing to sacrifice to take care of that pressing need.
“In its current form, I’m not supporting the bill. I have a lot of concerns with this,” Kaiser said.
“One, it gives the governor executive authority to declare a safety zone on public and private property,” he said “So, if you own a farm or ranch and decide that you want to host a protest, the government can come in and say, ‘No, that’s a safety zone.’”
Kaiser said there are already criminal trespassing laws.
“One of my other concerns is if this is going to apply to tribal lands, which I hope not, because they are a sovereign country,” he said. “We don’t pass laws to affect Canada.”
Neither Kaiser nor Dennert appear alarmed at the potential for a tyrannical Governor to suppress dissent. Dennert does express concern about the executive branch intruding on the judicial branch:
“The judge can use discretion on whether you should go to jail or not go to jail. And this is saying that you should go to jail for at least 10 days,” Dennert said. “I think this bill could be amended to where it could be workable. I would be very skeptical of giving the executive branch any more authority than it has now” [Marvel, 2017.02.26].
Senator Al Novstrup voted for this abomination three times—once in committee, twice in the Senate. He told the crackerbarrel crowd that (Marvel’s words) “something needs to be done to ensure the state doesn’t foot a hefty protest bill”; however, SB 176 does nothing to address the cost of protests. Arguably, mobilizing law enforcement statewide to lock down a one-mile radius around a declared protest site could cost even more than simply carting off violent protestors who break existing laws.
SB 176 goes to House State Affairs next. Contact those legislators (who include the powerful Speaker Mickelson, as well as some Kaiserly conservatives like DiSanto, Heinemann, and Rhoden who might share Kaiser’s concerns about private property rights) and tell them to stop this executive power grab.
Poppycock. There are no protestors running to Pierre or Bismarck and begging the governors for more protection. Cheyenne River Sioux Chairman Harold Frazier, Crow Creek Sioux Tribal Chairman Brandon Sazue, and others who supported the Dakota Access protest came to Pierre to testify against SB 176 Tuesday, only to be rebuffed by the Governor who purports to be acting in their best interest.
If the Governor is concerned about lawbreaking protestors, then by definition there must already be laws under which those breakers can be busted. SB 176 is thus unnecessary.
To tackle hardcore protestors who get arrested but believe so firmly in their cause that they’ll return to the protest to resume their stand against whatever corporate beast has provoked their rages, the Governor would create a whole new crime, “aggravated trespassing,” which would dish out stiffer penalties for such repeat protestors. I can see the argument that if some bad dude trespasses on my property once, gets hauled off by cops, then gets out of jail and comes back to tromple my lawn again, maybe that bad dude needs a stiffer second penalty to get the message across that he should stop trespassing.
But Governor Daugaard isn’t creating a new second-trespass penalty to protect regular citizens from return trespassers on their private property. The Governor would impose this second-trespass penalty only in his emergency-power “public safety zones.” SB 176 isn’t about everyday public safety; SB 176 is about making protest a crime.
SB 176 is actually an attack on our property rights. Suppose TransCanada comes barreling through West River with Keystone XL a few months from now. Suppose John Harter, whose land TransCanada gets to build through thanks to eminent domain, invites protestors to come camp on his West River ranch and hurl invective at the pipeline builders as they commit their atrocity. The land along the route is entirely Harter’s; with Harter’s permission, the protestors have every right to occupy his land and shout over the easement fence at the pipeliners. Yet SB 176 allows Governor Daugaard to seize (without due process!) all of Harter’s land within a mile of the pipeline route, kick everyone off, including Harter himself, and arrest Harter and his guests if they try to return to Harter’s land.
Senators have softened SB 176 a touch, removing the referendum-resistant emergency clause and adding a July 1, 2020, sunset clause. But it’s still a bad bill.
If you have private property or if you have something to say, you shouldn’t feel protected by Senate Bill 176. You should feel your First and Fifth Amendment rights under attack. The Senate passed it 21–14, so now it’s time to call your Representatives and read them the Bill of Rights.
Last week Rep. Tim Goodwin withdrew his offensive House Bill 1145, the vague “no-go zone” bill based on Breitbartian Islamophobia. I’m glad to see that bill gone, due to the probably unintended threat it posed to public protest and other First Amendment activities.
Officials including Daugaard have talked with Gov. Doug Burgum’s administration to hear about North Dakota’s experience handling the protests and what the state would have done differently, Chief of Staff Tony Venhuizen told The Associated Press on Wednesday.
“We’ve seen what we’ve seen in North Dakota, and we want to be prepared,” Venhuizen said. “We certainly understand that there may be people who want to peacefully protest, and it’s nobody’s intention to prohibit that or prevent that, but those need to be controlled so that they don’t endanger public safety or public property or private property” [James Nord, “North Dakota Pipeline Protest Spurs South Dakota Legislation,” AP via McClatchy, 2017.02.15].
The Constitutionally problematic text of SB 176 is right up front:
Upon the occurrence of an event that may consume significant public resources, poses a threat to public or private property, and poses a threat to the health and welfare of the public, the Governor may declare any location within the state to be a public safety zone and issue an order authorizing any action provided for under § 34-48A-5, 34-48A-6, 34-48A-32, 34-48A-34, 34-48A-36, 34-48A-41, 34-48A-46, 34-48A-47, 34-48A-48, 34-48A-49, 34-48A-51, or 34-48-53, without declaring an emergency or disaster, within the public safety zone and within one mile thereof [2017 SB 176 as amended by Amendment 176oa, Section 1, 2017.02.15].
“Significant public resources” is not defined. Under our current tight budget (but hey, when is South Dakota’s budget not tight?), I could reasonably contend that any consumption of public resources, budgeted or unexpected, is significant. One can argue that any gathering of protestors has the potential to devolve into a ruckus that could break a window or spread the flu.
SB 176 Section 3 creates a new category of trespassing for disobedient citizens in a protest/war zone, “aggravated criminal trespass,” a Class 1 misdemeanor which carries an unsuspendable sentence of ten days in county jail. Commit the same trespass again within two years, and Section 4 busts you for a Class 6 felony. Section 5 says similar protest trespassing in any other state counts as your first offense, so anyone who got arrested at the Standing Rock protest and comes to South Dakota to make trouble over Keystone XL during the coming months could be busted for felony trespass.
And for good measure, the Governor wants this bill passed with an emergency clause, thus denying the public the opportunity to refer this assault on First Amendment rights. I am unclear on what pressing danger threatens “public peace, health, and safety” and thus justifies this emergency clause… and if the Governor can’t invoke the emergency clause with restraint, can we trust him to invoke his expanded emergency powers under SB 176 with restraint?
SB 176 is an overreaction to the vigorous resistance staged by our Indian neighbors and their allies to the Dakota Access pipeline, and maybe to the huge protest movement against the tyrant in the White House and the milquetoast Republicans facilitating his reign. If ruckus turns to riot, the Governor and South Dakota law enforcement already have enough legal authority to intervene. Now is no time to put the Constitution at greater risk. Let’s chuck SB 176’s emergency powers and emergency clause and save state strength for real problems.