[Sara DeSmet] just recently started a petition to repeal SB 149, and is hoping to rack up enough signatures to get the Governor’s attention. DeSmet is a supporter of the LGBT community and believes the new law is discriminatory.
“That’s not fair. It’s preventing them from moving forward, especially as far as they’ve come already,” Sara DeSmet said.
Along with dozens of supporters online, Laurie DeSmet and her husband are planning to join the fight.
“The state of South Dakota could come into the 21st century. They’re capable of loving children, of providing them good homes, and education, safety, things that they don’t have for whatever reason they’re in the foster care system,” Laurie DeSmet said [Calah Kelley, “Woman Starts Petition to Repeal Adoption Bill,” KELO-TV, 2017.03.12].
I agree wholeheartedly with the DeSmets’ sentiments. I am pleased to see that, thanks to press coverage, the Change.org protest has drawn (as of 07:07 CDT) 1,722 supporters.
But we understand that an online petition has no force of law. The people to whom this Change.org protest is addressed—Governor Dennis Daugaard, who signed SB 149 last Friday, and Senator John Thune and Representative Kristi Noem, who had nothing to do with the passage of this state law—have no power to repeal this law (not to mention little desire and no formal obligation to respond to this online protest).
Prepare a form that petition circulators can hand out to signers “containing the title of the referred law; the name, phone number, and email address of each petition sponsor; and a statement whether the petition circulator is a volunteer or paid petition circulator and, if a paid circulator, the amount the circulator is being paid” (this is a new onerous requirement foisted upon petitioners by the Legislature last year).
Get the petition and handout approved by the Secretary of State.
Get copies of that petition, the handout, and the rules for circulating in the hands of all of the adult South Dakota residents on your list.
Once those circulators get all the signatures they can, tell them to take their signed sheets to a notary public (go to the courthouse or your favorite bank) and get the notary’s seal on each sheet.
Collect all of those sheets and submit them to Secretary of State by Monday, June 26, 5 p.m. CDT with at least 13,871 valid signatures (if you get 1,000 volunteers from your Change.org protest, and if each one collects 20 signatures, you should have a safe 20,000 signatures, a good cushion target for any referendum drive this year).
Online petitions are good organizing tools, but if we want to repeal SB 149, we need to break out the pens and paper.
A couple weeks ago, Senator Stace Nelson [R-19/Fulton] and eleven Legislative colleagues raised a stink about carcass bills and vote-trading. In a Valentine’s Day letter to Marty Jackley, Nelson and friends requested an official Attorney General’s opinion on the legality of trading votes on legislation.
“Vote trading,” also known as “horse trading” or “logrolling,” is not prohibited by existing law. It is defined as “[t]he trading of influence or votes among legislators to achieve passage of projects of interest to one another.” American Heritage Dictionary Second College Edition 403 (1983). Those acts are “the swap of one official act for another.” United States v. Blagojevich, 794 F.3d 729, 735 (7th Cir. 2015). For example, “Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution.” Id. The Blagojevich court explained, “Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.” Id. Our Legislature implicitly recognizes the propriety of “vote trading” as its Joint Rules do not prohibit such conduct [Attorney General Marty Jackley, Official Opinion 17-02: “Whether ‘Vote-Trading’ and ‘Vehicle Bills’ Are Prohibited,” 2017.02.23].
“Vehicle bills” are constitutional in South Dakota. Both the House of Representatives and the Senate may freely amend bills that are passed by the other chamber. S.D. Const. Art. 3, § 20. In South Dakota, an amendment is defined as “to change ‘by modification, deletion, or addition.’” Taylor Properties, Inc. v. Union County, 1998 S.D. 90, ¶ 17, 583 N.W.2d 638, 641 (quoting Black’s Law Dictionary 81 (6th Ed. 1990)). A special type of amendment, known as an “amendment by substitution,” may occur during the legislative process. That special amendment is undertaken “by striking out and inserting [language] that replaces an entire main motion or a paragraph or other readily divisible part within a main motion[.]” Black’s Law Dictionary 98-99 (10th Ed. 2014). As the Georgia Supreme Court recognized, amendment by substitution is a universally accepted parliamentary procedure. Shadrick v. Bledsoe, 198 S.E. 535, 543 (Ga. 1938) (citing Mell’s Parliamentary Practice, § 136; Jefferson’s Manual of Parliamentary Practice, § 467; Manual of the General Assembly of Georgia, 1935–36, p. 159, Rule 95).
Our Legislature, like Georgia, recognizes amendment by substitution. South Dakota Legislature’s Student Guide: Glossary of Legislative Terms (“Student Guide”). Joint Rule 6E-2 allows “hoghouse amendments:” “Any substitute bill shall be treated as an amendment and shall be governed by the rules governing amendments.” Reference Book. “Hoghouse amendments” are “a procedure used in the Legislature whereby a committee or a member from the floor will move to strike everything after the enacting clause of a bill and insert in lieu thereof the substance of an entirely new bill.” Student Guide. [Jackley, 2017.02.23]
If you’re a Jackley fan, you give the A.G. bonus points for rebuffing Senator Nelson by citing the Student Reference Series twice. If you’re a Stace fan, you are steamed that Marty whacks your query by citing Legislative info written for kids.
But hey! Roll those logs! Trade those horses! That’s what makes the Legislature hum!
After hearing numerous supporters doggedly avoid stating the real anti-LGBT intent of SB 149, Libby Skarin, policy director for the American Civil Liberties Union of South Dakota, intelligently explained how SB 149 uses “broad and sweeping language” to “allow religion to be used to discriminate against loving, qualified parents who wish to open their homes to kids without them” (start listening at 79:20 of the SDPB audio). She said SB 149 would allow any child placement agency (not just faith-based or entirely private agencies—read the definition!) to turn away prospective parents based on “explicitly religious criteria” excluding “not only same-sex couples, but also people who have a different religion [from] the agency, single parents, interfaith couples… families that don’t attend church weekly, servicemembers or gun owners… based on the agency’s moral conviction regarding pacifism, all while children in need of homes languish in foster care and await permanent families. This bill even authorizes agencies to deny a child placement with a close relative and instead place that child with strangers if that relative is of the wrong religion….”
As the smartest, clearest speaker in the room Wednesday, Libby Skarin also pronounced her name clearly at the beginning of her testimony: the last name is /skreen/.
Demonstrating at the very least that they weren’t listening closely to testimony, Senator Neal Tapio and Senator Phil Jensen both mispronounced Skarin’s name (Tapio: /SKAR-kin/; Jensen: /ka-RIN, KA-rin/).
Senator Tapio asked Skarin (104:08) if an adoption agency can discriminate against prospective parents with a religious belief in female genital mutilation. Senator Jensen asked Skarin if a known pedophile should be allowed to adopt a child. Skarin said neither such placement would be in the best interest of the child. Senator Jensen said such denial is a “judgment call.” Yet both Senators miss a crucial point: the behaviors they describe are felonies under state law (female genital mutilation: SDCL 28-18-37; pedophilia, Chapter 22-22). Tapio and Jensen are equating felony behavior with behaviors the state cannot punish, like not going to a certain church or any church or not being married to a person of the opposite sex.
In other words, Tapio and Jensen are saying that if you don’t fly right with their church, you might as well be a criminal.
SB 149 passed committee 5–2 (thank you, Chair Deb Soholt, for joining Senator Kevin Killer in voting nay). On the floor Thursday, Senator Billie Sutton invoked Rule 5-17, delaying consideration of SB 149 until this Wednesday, February 22, which gives decent folks plenty of time to e-mail Tapio and Jensen to misspell their names, then contact other, more sensible legislators and get them to vote no on this attempt to wedge Sharia for Jesus into our adoption laws.
Senator Stace Nelson has rounded up some fellow cranky conservatives to challenge the practice of “vehicle bills” or “carcasses.” Nelson and eleven other Republican legislators* have asked Attorney General Marty Jackley for an official opinion on the legislative practice of filing and passing empty bills as placeholders for policies they’re still brewing.
Improper influence of legislation or legislators as misdemeanor. Any person who threatens, harms, offers to make bribes of money or other inducements, offers or gives gifts or other types of consideration to any person for the purpose of obtaining sponsorship or introduction of legislation, influencing the form of legislation, attempting to influence any member of the Legislature to vote for or against any measure pending therein, or for or against any candidate for any office to be elected or appointed by the Legislature, attempting to influence any officer of either house of the Legislature in naming of members and officers of committees, or in the performance of any of his duties, or attempting to influence or control the action of any member in relation to any matter coming before the Legislature, or any of its committees is guilty of a Class 1 misdemeanor. [SDCL 2-12-9, with misdemeanor penalty restored by 2017 HB 1069 repeal of IM 22].
I’m a little surprised: I thought vote/horse-trading was standard operating procedure in any legislative body. I’ll vote for yours if you vote for mine—that’s how work gets done in Pierre, Washington, and every other seat of democracy, isn’t it?
But other inducements… other types of consideration… do the Nelson Twelve have a point? And if they do, what are they and the Attorney General willing to do to stop it?
Two Republicans voted against HB 1069, Senator Stace Nelson (R-19/Fulton) and Senator Lance Russell (R-30/Hot Springs). Immediately after the Senate’s vote Wednesday to overturn the will of the people, Senators Nelson and Russell filed a formal dissent and protest, placing on the record arguments they made during floor debate that HB 1069 violates the U.S. Constitution by infringing on anonymous campaign speech and violates the South Dakota Constitution by addressing multiple subjects. They also contend that the seventeen Senators suing the state to overturn IM22 violated Legislative Joint Rules by voting on a bill that would allow them to escape further legal costs:
Pursuant to Joint Rule 1-10, we, the undersigned Senators, do hereby respectfully dissent from, and protest against, the rulings of the President of the Senate, Lt. Gov. Matthew Michels, in ruling against Senator Nelson’s point of orders that 17 Senate members be excused from voting due to their personal conflict of interest in the legislation to overturn IM22 due to their admitted public record of personal pecuniary interest in a lawsuit to overturn IM22, violating Joint Rule 12-1 and Section 521 (2)(3) & Section 522 (1) of Mason’s Manual of Legislative Procedure (enacted as SD Legislative Joint rules via Joint Rule 11-3). Lt. Gov. Michels’ ruling, in the face of such conflict of interests, promotes a practice that undermines the very foundation of our State Constitution, weakens the rule of law, and besmirches the reputation of the South Dakota Senate. Furthermore, we, the undersigned Senators, do hereby respectfully dissent from, and protest the passage of House Bill 1069 in that it clearly violates Article III, Section 21 of the South Dakota Constitution (which 17 Senators acknowledge in section 10 of their lawsuit contesting the mirror image of HB1069, IM22 was unconstitutional for violating this constitutional provision) states: “No law shall embrace more than one subject, which shall be expressed in its title.” Members voted to pass House Bill 1069 knowing that provisions of it contained sections which require citizens to declare their names, address, etc., on campaign material, which the Supreme Court of the United States of America has ruled explicitly violates persons’ 1st Amendment rights (see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)). We therefore believe that the passage of House Bill 1069 is in contravention of both the United States Constitution, South Dakota’s Constitution, and is therefore null and void. We thus dissent from, and protest against, the erroneous rulings, the unconstitutional aspects of House Bill 1069, and the appearances of improprieties used to pass House Bill 1069. We respectfully request that this dissent and protest be printed in the Senate Journal as required by Joint Rule 1-10 [Sen. Stace Nelson and Sen. Lance Russell, Dissent and Protest to Passage, Senate Journal, 2017.02.01].
Democratic Senators Billie Sutton (D-21/Burke), Troy Heinert (D-26/Mission), and Jason Frerichs (D-1/Wilmot) followed suit but took a little longer to type. Their dissent and protest appears in yesterday’s Senate Journal:
Joint Rule 1B-2 states the legislators must comply with all Constitutional and statutory requirements regarding conflicts of interest. Voting upon HB 1069 presents a conflict of interest because the legislators currently in litigation against the implementation of Initiated Measure 22 would thereby receive a pecuniary interest due to the passage of HB 1069. Thus, they will no longer have to pay to continue the lawsuit and will thus receive a financial benefit with the repeal of IM 22.
In addition, the South Dakota Constitution, Article III, Section 1 has been used by the courts as the standard to determine when an emergency exists. Article III, Section 1 of the South Dakota Constitution allows a referral of a legislative act to a public vote before going into effect unless it is necessary for the immediate preservation of the public peace, health, or safety or the act is necessary for the support of the state government and its existing institutions. Since this law is enjoined we contend that no emergency exists, and the use of the Emergency Clause is unconstitutional in HB 1069. We therefore believe the passage of this act is in contravention of the Constitution of South Dakota and the Joint Rules and is such null and void.
We respectfully request this dissent be printed in the Senate Journal.
Nelson and Russell’s argument about anonymous speech is not really an expression of support for IM22. Both IM22 and current campaign finance law require disclaimers and disclosure of sources of campaign communications. The 1995 Supreme Court case they cite said that Ohio’s ban on anonymous speech was too broad but still allowed states and the federal government to impose disclaimer and disclosure requirements tailored to meet overriding state interests. For over two decades, states and the FEC have done just that, and the courts have not thrown out “Paid for by….”
The conflict-of-interest argument tantalizes but probably gets nowhere. Passing HB 1069 appears to end the lawyer bills for Novstrup and the other IM22 plaintiffs, but HB 1069 was not the only vehicle at their disposal for reaching that goal. They could have dropped their lawsuit at any time.
The state constitutional arguments on multiple subjects and the bogus emergency clause are the most solid. The IM22 plaintiffs themselves agreed in their anti-IM22 brief that IM22 addressed multiple subjects; they are logically bound to agree that a bill doing the exact opposite of IM22 also addresses multiple subjects. And for all their rhetorical gymnastics, not one Republican has addressed the 1996 LRC Issue Memorandum that clearly explains the funding requirement for the emergency clause HB 1069 invokes.
But are those two constitutional arguments worth taking HB 1069 to court? Get a court to overturn HB 1069 on the multi-subject argument, and we grant the court grounds on which to overturn IM22.
Get a court to overturn the emergency clause, and we may only delay enactment of HB 1069 until July 1, like a normal bill. IM22 would still be enjoined, and the South Dakota Supreme Court might not rule on the IM22 case before July 1, so even for the next few precious months, we’d still be laboring under the status quo that HB 1069 affirms.
The only impact of a no-emergency-clause delay is the opportunity to refer HB 1069 to a public vote. But that referral would be a disaster. We would place the exact text of HB 1069 (the inverse text of IM22) on the ballot. The South Dakota Supreme Court would then rule a line or two of IM22 unconstitutional (and I’m confident the plaintiffs will win at least one of their claims). Our campaign would then be in utter confusion, as we’d be voting on a Swiss-cheesed bill that includes provisions that we cannot constitutionally enact.
A key part of that pivot is for Nelson Republicans and Sutton Democrats to look for ways to turn their cooperation in protesting HB 1069 into practically constructive and/or obstructive collaboration.
Update 11:26 CST: Senator Stace Nelson expands on his dissent with this op-ed, circulated today:
February 1st was a “dark day” for the South Dakota legislature. The passage of House Bill 1069, brought to repeal the voters’ enacted Initiated Measure22, culminated the ugliest partisan bums-rush of legislation since Obamacare. I publicly opposed IM2 during the election for many reasons. The solution to bad government is not more government, and IM22 did nothing to combat the ugly corruption of the last two governor’s EB5, and Gear Up scandals. Circumstances made me a grudging opponent of HB1069.
Early on I encouraged Senators to go slow repealing IM22. We govern at the permission of the people. While the people give us permission to act on their behalf by electing us, we shouldn’t be so arrogant as to act rashly with out proper respect for their will. I suggested 5-6 single subject constitutional bills to review IM22 and afford the many subjects the proper, respectful, deliberate public hearings that voters deserved. That sage advice was cast aside and HB 1069, the mirror image of IM22 (which they contested was unconstitutional because it was multi-subject), was brought forth to repeal IM22. Immediately streams of dishonest rhetoric was pushed spinning the repeal and claiming a contrived “emergency” demanding the immediate passage of HB1069. Politicians who blithely voted for unconstitutional multi-subject bills previously, now claimed they must repeal IM22 to protect the people’s constitution, from the people!
Despite 24 legislators being personally involved in the lawsuit against IM22, they refused to recuse themselves from the obvious conflict of interest of pushing HB1069 through the legislature. They did everything possible to bend to breaking every rule possible to rush HB1069 through. To add injury to insult, Senators voted to knowingly keep unconstitutional provisions within HB1069, which require personal identifying information the Supreme Court of the United States of America has ruled explicitly violates persons’ 1st Amendment rights (see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334(1995)). IM22 was allowed on the ballot by the Governor, Attorney General, and Secretary of State. That tacit support, in my opinion, removes blame of unconstitutionality from citizens who brought IM22. Legislators brought the unconstitutional HB 1069 mess. They were obligated to abide by legislative ethics rules and our US & SD Constitutions. The inappropriate conflicts of interests, the gross appearance of improprieties used to pass HB1069, and the provisions of HB1069 which were in explicit contravention of both the United States Constitution, and South Dakota’s Constitution, showed who was the real threat to our Constitutions. Principle demanded that I was duty bound to oppose HB1069, which I did.
The manner in which HB1069 was passed was disgraceful, and a “dark day” as Senator Lance Russell (R-Hot Springs) appropriately lamented. Politicians claimed there is no corruption in SD, in support of their rush to pass HB1069. The EB5 corruption and death of Richard Benda; the Gear Up corruption and deaths of Scott, Nicole, Michael,Connor, Jaeci, & Kailey Westerhuis; the recent scandal of a two year legislative cover-up of a legislator sexually preying on pages & interns; and, the same legislators repealing the will of the voters in such a corrupt fashion, refute those assertions upon utterance.
In that “dark day” there was a ray of principled sunshine. The honorable gentleman, Senator Lance Russell (R), stood tall on the Senate floor and opposed the partisan stampeding herd. In the end, we earned the wrath of politicians for refusing to compromise the ethical principles of your government in their demands we go along to get along. The good news is, Senator Russell and I sleep like babies at night and we can look each one of our constituents in the eyes when we go home.
22 months ago, Senator Jefferson Beauregard Sessions grilled Sally Quillian Yates, President Barack Hussein Obama’s nominee for deputy attorney general. Senator Sessions exhorted nominee Yates to say no to illegal and unconstitutional orders on immigration from the President:
Sessions: You have to watch out, because people will be asking you to do things that you just need to say no about. Do you think the attorney general has a responsibility to say no to the president if he asks for something that’s improper? A lot of people defended the [Loretta] Lynch nomination by saying well, [then-President Obama] appoints somebody who’s going to execute his views. What’s wrong with that? But if the views that the president wants to execute are unlawful, should the attorney general or the deputy attorney general say no?
Yates: Senator, I believe that the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution, and to give their independent legal advice to the president [Senator Jeff Sessions and nominee Sally Yates, Senate confirmation hearing, 2015.03.24, as transcribed by Vox.com, 2017.01.31].
Apparently failing to recognize they have the White House on their side, Senator Al Novstrup and other Trumpist legislators have filed Senate Bill 124, an effort to ban refugees from South Dakota.
SDCL 28-1-47 designated the Department of Social Services as the state agency that handles South Dakota’s participation in the federal Refugee Act of 1980. SB 124 strikes that statute and replaces it with this declaration:
Notwithstanding any other provision of law, no new refugee resettlement agreements may be entered into or renewed with agencies of the federal government without prior approval by the Legislature [2017 SB 124, introduced 2017.01.26].
Christian leaders across the country are criticizing Trump’s policy, but as Al and his legislative pals make the church rounds this morning, shouldn’t they be celebrating total victory on immigration? Doesn’t Trump’s order render their SB 124 not only unnecessary, but counterproductive? Suppose they pass SB 124 and it can withstand judicial review. At the end of May, when Trump reopens the borders to preferred Christian refugees, the South Dakota Legislature will be two months past adjournment. Unless they call a special session, the Legislature won’t be able to authorize the admission of any of those preferred Christian refugees to South Dakota.
When Senate State Affairs takes up SB 124 (no date set yet), let’s hope that Al and his pals can recognize that, in Trump’s America, we don’t need state laws to peddle paranoia, ignorance, and bigotry. The White House has that covered.
Answering questions from young people in the group this morning, the pope said, “the sickness or, you can say the sin, that Jesus condemns most is hypocrisy,” which is precisely what is happening when someone claims to be a Christian but does not live according to the teaching of Christ.
“You cannot be a Christian without living like a Christian,” he said. “You cannot be a Christian without practicing the Beatitudes. You cannot be a Christian without doing what Jesus teaches us in Matthew 25.” This is a reference to Christ’s injunction to help the needy by such works of mercy as feeding the hungry, clothing the naked and welcoming the stranger.
So I have an interesting perspective to share on what transpired today in the Capitol. IM22 has been adjoined by a judge back in December. This means IM22 is not in affect and hasn’t been for over a month. IM22 was the law after the election but is not available for enforcement because of the Judge’s ruling. The old laws regarding campaign finance and ethics were gutted by the passage of IM22.
The end result right now is; we do not have enforceable campaign finance or ethics laws in place in SD today.
We are trying to repeal IM22 and put at least the old campaign finance and ethics laws back into statute so we have a rule book that is not in the courts for us to follow. That IS an emergency. That is why we need something to pass right away [emphasis mine, grammar errors Deb’s; Senator Deb Peters, Facebook post, 2017.01.26].
Senator Peters is plaintiff #2, right behind her Majority Leader R. Blake Curd, on the Republican lawsuit against IM22. (Yes, Republicans are using all three branches of government—judicial, legislative, and executive—to kill IM22.) She should thus be keenly familiar with what Judge Mark Barnett said when he ruled in Peters and Curd’s favor:
“The motion for preliminary injunction is granted, and implementation and enactment of IM22 is therefore stayed in its entirety,” ordered Judge Barnett.
IM22 consists of 70 sections, ordering that several sections of South Dakota Codified Law be amended or stricken. When IM22 became law on November 16, it amended and struck those sections. When Judge Barnett issued his injunction (orally on December 8, in print on December 21), he rolled back everything IM22 did, including all that amending and striking.
The core logic here: If we were to accept Senator Peters’s suggestion that, say, SDCL 12-27-17 on political communications is no longer law, then we would be accepting that Section 17 of IM 22, which sought to repeal that statute, has been implemented. Judge Barnett enjoined that implementation; therefore, SDCL 12-27-17 has not been repealed.
Neither the plaintiffs, the defendants, nor the judge said anything about the injunction creating a legal vacuum. The Secretary of State, who studiously avoids taking any action not explicitly authorized by law, has sent out notices to candidates and committees reminding them of their legal obligation to file campaign finance reports, per sections of Codified Law that IM22 would have modified, and Senators Peters, Jim Bolin, and Justin Cronin, all litigants against IM 22, have complied with campaign finance law by filing their year-end reports. (Cronin just filed his Wednesday.) Campaign finance law remains in effect.
Senator Peters and her Republican colleagues sound a lot like David Novstrup last year when he tried to convince me that his attempt to undo the voter-approved minimum wage was anything other than an affront to the votes. Republicans are claiming that campaign finance law has disappeared, when in fact Judge Barnett only erased changes and reset campaign finance law to its pre-IM22 state. Republicans are claiming there is an emergency, when in fact there is none. Republicans are claiming HB 1069 is constitutional, when in fact it by their own logic is not.
Republican are cloaking their repeal of IM22 in concern for the constitution and the will of the voters, when in fact HB 1069 embodies no such concern.
Both SB 67 and HB 1069 include emergency clauses, which will insulate them from popular referendum. Voters could still initiate measures to repeal these odious bills, but while a referendum would suspend those bills until after the 2018 election, an initiative effort would leave those measures in place until the 2018 election, meaning petitioning and campaigning in this election cycle would take place under the Legislature’s preferred anti-democratic, anti-anti-corruption rules.
Article 3 Section 1 of the South Dakota Constitution specifies which laws the Legislature may exempt from referendum with emergency clauses:
However, the people expressly reserve to themselves… the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions [SD Const. Art. 3 Sec. 1].
An emergency clause for the immediate preservation of public peace, health, or safety… is generally used when a bill is regulatory in nature and it is necessary to begin the regulation immediately to preserve the public safety.
Both SB 67 and HB 1069 invoke the latter criterion:
Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval [SB 67 Section 2;HB 1069 Section 35].
SB 67 does not deal with taxation, raising of revenue, or appropriations. It does not enact any funding for government activities. By the LRC’s own explanation, SB 67 is not addressing emergency needs for support of state government.
HB 1069 mentions appropriations by repealing the voter-approved funding for the Democracy Credits program. However, that funding has been enjoined by Judge Mark Barnett and remains in limbo until the South Dakota Supreme Court hears and rules on the lawsuit against IM22. HB 1069 is not providing funding to any government operation; it seeks to repeal funding that is already blocked. HB 1069 thus does not address any emergency needs for support of state government.
TakeItBack.org, Represent South Dakota, and others who supported IM22 are raising heck over HB 1069. They should add SB 67 to their agenda, since constitutional amendments are apparently the only way South Dakota voters can guarantee their will will stand as law without Legislative interference. TakeItBack.org and Represent SD should prepare their legal briefs now on the improper emergency clauses, be ready to file suits the moment Governor Daugaard signs those laws, and have referendum petitions ready to go the moment the judge overturns those bogus emergency clauses.
SB 59 subjects all initiated measures “to the same constitutional requirements that apply to any measure proposed by the Legislature.”
Section 1 is, obviously, a power grab. The Legislature doesn’t want our laws going into effect before they have a chance to tinker with them. Recall that in 2014, we passed Initiated Measure 18, which raised the minimum wage from $7.25 to $8.50. That wage increase took effect on January 1, 2015, before the Legislature convened. Undoing that wage increase was a lot harder for Republicans because thousands of South Dakota were already seeing more money in their pockets. If that wage hike had been delayed to July 1, 2015, David Novstrup’s youth minimum wage would have looked like a smaller increase rather than an actual pay cut. That would have made a difference in rallying the opposition that put that measure on hold, on the ballot, and ultimately in the trash can.
A post-Session enactment date for ballot measures makes it easier for the Legislature to overturn them, because South Dakotans will not have the chance to see those ballot measures in effect before legislators try to take them away. Section 1 thus strengthens the Legislature at the expense of the people.
Section 2 is stranger slop. Initiated measures are already subject to the South Dakota Constitution, as made clear by the ability of 24 Republican legislators to sue for the annulment of Initiated Measure 22 on constitutional grounds. The constitution is the law of the land; we citizens understand that we can’t write initiated laws that override the constitution.
Section 2 appears to create several problems that either weaken citizens’ initiative power or create constitutional snafus:
Article 4 Section 4 requires that any bill receive the signature of the Governor. SB 59 thus requires that the Governor approve any initiated measure.
Article 4 Section 4 requires that bills be subject to veto by the Governor. SB 59 thus appears to allow the Governor to veto an initiated measure.
Article 4 Section 4 grants the Governor line-item veto power. SB 59 thus appears to grant the Governor the power to strike sections of initiatives.
Article 4 Section 4 requires that the Legislature reconsider any vetoed bill. SB 59 thus requires the Legislature to take up any initiated measure vetoed by the Governor.
Article 4 Section 4 requires that any vetoed bill receiving a two-third vote from each chamber of the Legislature become law. SB 59 thus makes it possible for the Governor and either 24 Representatives or 12 Senators to overturn the will of hundreds of thousands of South Dakotans.
Article 3 Section 17 requires that every bill be read twice in the Legislature. SB 59 thus requires the Legislature to include readings of initiated measures before we can vote on them… which conceivably offers an opportunity to use procedural tricks (or deliberate forgetfulness) as a technicality by which to stop initiated measures cold.
Article 3 Section 18 requires that every bill receive majority approval from each chamber to become law. SB 59 thus appears to render the people’s vote redundant.
Article 3 Section 18 also requires that “the yeas and nays shall be entered” in the Legislative Journal. SB 59 thus could be read to require a roll call vote of all citizens marking ballots for initiated measures.
Article 3 Section 22 requires that no law take effect until 90 days after adjournment of the session at which it passed. That requirement makes no sense for initiatives, which are passed by the people, unless we assume that SB 59 intends to make enactment of any initiative contingent on Legislative approval after the election.
Article 3 Section 22 requires a two-thirds vote to pass a measure with an emergency clause. SB 59 thus raises the possibility that the state constitution would render SB 59 ‘s absolute July 1 enactment date unconstitutional.
Article 3 Section 1 speaks exclusively of submitting measures proposed by the people “to a vote of the electors of the state.” No Governor, no Legislature, nobody else—just the people. The only way we can read our constitution consistently is to conclude that this exclusive reservation of legislative power to the people renders SB 59’s effort to subject initiatives to the Legislature’s procedural and voting requirements invalid.
In short, we should not do Section 1 of Senate Bill 59, but the state constitution says we cannot do Section 2.
Wow—and some of SB 59’s sponsors say IM 22 was poorly drafted?