Former Attorney General, now Sixth Circuit Court Judge Mark Barnett today backed current Attorney General Marty Jackley by rejecting the pharmaceutical industry’s effort to force Jackley to write a new, more thorough explanation of the drug-price-cap initiative currently circulating in South Dakota.
“I have worked to provide a fair, clear, and simple summary of the proposed measure in order to assist our voters. The role of the Attorney General when writing the voter explanation is to be fair and neutral and not to advocate for or against a ballot measure. The Court has reaffirmed the fairness of this process,” said Jackley [Attorney General’s office, press release, 2017.09.12].
Initiative supporter Rick Weiland blows big neener-neeners at Big Pharma:
“The people of South Dakota won,” said Rick Weiland, a key supporter of the South Dakota Drug Price Relief Act. “The drug industry tried to protect their price-gouging practices by denying South Dakota voters their constitutional right to decide whether our measure should be on the ballot but they failed.”
…“The Attorney General’s explanation makes it clear our measure would require South Dakota’s state agencies to pay no more for prescription drugs than what the U.S. Department of Veterans Affairs pays for the same drugs – which is generally about 24 percent less than what the drug companies charge their commercial customers,” said Weiland. “The Attorney General’s explanation was clear, concise and accurate.”
“The drug companies wanted to insert language in the explanation that was irrelevant to the essence of the measure and would have muddied the waters,” Weiland said. “We’ve seen this before, delay the campaign and tie us up in expensive lawsuits. Bottom-line: they want to keep our measure to lower the cost of prescription drugs off the ballot. We’re extremely gratified that Judge Barnett denied their challenge and supported the Attorney General’s explanation” [TakeItBack.org, press release, 2017.09.12].
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 voters. 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.
Judge Mark Barnett ruled yesterday that his injunction against enactment of Initiated Measure 22, the Anti-Corruption Act, stands against the entire law. Judge Barnett thus rejected the state’s severability argument, which sought to lift the injunction from 28 sections not yet deemed unconstitutional by the court.
Here is Judge Barnett’s six-page ruling (well, five pages and a signature):
Judge Barnett does not address the fact that the sponsors included a severability clause in their original draft of the initiative and removed it only on the recommendation of Legislative Research Council director Jason Hancock, who wrote in a July 29, 2015, letter, “Severability clauses may be used in other states; however, severability is a long-established doctrine of the South Dakota Supreme Court” and the severability clause sponsors include in the draft submitted to his office “should be deleted.” Judge Barnett does not dispute that constitutional sections could “stand alone and be effective” even without IM 22’s unconstitutional ethics commission [p. 5, parag. 20]. However, Judge Barnett contends that “I.M. 22 was presented to the voters as a self-contained, comprehensive package of reform” [p. 2, parag. 5] and that voters thus would not have voted for any of the new campaign finance limits without the new ethics commission to enforce them.
*****WARNING to Sensitive Readers: Reporting Ends—Rebuttal Begins!*****
Judge Barnett’s argument is shaky at best. First of all, he cites no evidence that voters intended an “all or nothing” outcome. Judge Barnett uses phrases like “voters believed,” “one must assume,” and “This does not appear to be what voters intended.”
Judge Barnett then resorts an incomplete reading of IM 22. Let’s start with paragraph 8, where he says overturning the Democracy Credits program requires that he also throw out IM 22’s general campaign finance limits:
When voting, in part, for public funding of campaigns, one must assume that the voters saw that public funding as a way to lessen the influence of “non-democracy credits” or private sector funds flowing into campaigns. in other words, as the voters tightened money from the private sector, via donation limits found in the first 29 sections of the Act, they also created funding from the public sector, in Sections 32–68. This suggests once again that the entire scheme was one package… one comprehensive way to get private money out, and public money in, to campaigns. Under the act, candidates would be steered away from private funding and made dependent on public funding [emphasis original; Judge Mark Barnett, Order on Severability, Curd et al. v. South Dakota, #32CIV16-000230, p. 2, parag. 8].
That paragraph leaves me wondering if Judge Barnett is reading the same IM 22 as I am. IM 22 did not seek to steer candidates away from private-sector funding. Section 53 requires candidates to obtain private funding before they can qualify for public funding. Section 59 limits the amount of public funding qualifying candidates can receive. IM 22 places no comparable limit on the amount of private funding that any candidate can receive, only on the amount that a candidate can receive from a single source. IM 22 does not mandate participation in public campaign finance; thus recognizing that candidates could choose to continue business as usual, IM 22 thus included provisions to change that business as usual.
I contend it seems more logical, looking at what IM 22 actually says, that voters intended to enact two reforms: first, a nice little voluntary public campaign finance system to encourage candidates to seek more small donations, public and private, in order to connect with more voters; and, second, a tightening of existing campaign finance limits to check the corrupting influence of big money. Even if the public financing system was a complete bust—either because no candidate participated or because some judge threw it out—we’d still have reforms that would apply to every candidate.
Judge Barnett says it’s not just his blocking of Democracy Credits that requires him to enjoin the campaign finance limits; it’s also his annulment of the ethics commission. See paragraphs 9 and 10:
The voters agreed to make the Commission independent of the rest of state government…. Thus, the voters expressed a distrust of all existing state offices to enforce all of the new duties and prohibitions set forth in the first 29 sections of the Act.…
The voters intended that the Ethics Commission police all of the campaign finance limits and reporting requirements set forth in the first 29 sections of the Act. However, since the Commission violates the Constitution in the manner in which it was created, and depends on an unconstitutional appropriation, one must wonder whether the voters really want those who are to be more closely regulated by the Act, to also be the police for enforcement of that Act…. If “that system does not properly prevent corruption or its appearance” as state in Section 2, then to leave the first 29 sections of the Act in place would be to put the proverbial foxes… and allegedly corrupt system… in charge of policing themselves. This does not appear to be what voters intended [emphasis original; Barnett, 2016.12.21, p. 3, parags. 9–10].
Section 24: That § 12-27-29.1 be amended to read as follows:
12-27-29.1. In addition to any other penalty or relief provided under this chapter, the secretary of state or the ethics commission, after notice and opportunity for hearing pursuant to chapter 1-26, may impose an administrative penalty for the failure to timely file any statement, amendment, or correction required to be filed by this chapter….
Section 25: That § 12-27-35 be amended to read as follows:
12-27-35. The attorney general shall investigate violations of the provisions of this chapter relating to a legislative office, statewide office, or statewide ballot question and prosecute any violation thereof….
Section 26: That § 12-27-36 be amended to read as follows:
12-27-36. The attorney general and ethics commission may, for the purpose of enforcing the provisions of this chapter, inspect or examine any political committee or political party records required to be maintained by this chapter….
Section 27: That § 12-27-37 be amended to read as follows:
12-27-37. The attorney general and ethics commission shall keep each record inspected or examined confidential except when the records are used to enforce provisions of this chapter associated with a criminal or civil action….
These four sections add investigation and enforcement authority to the ethics commission while leaving in place authority of the secretary of state and attorney general. Furthermore, Section 39(4) allows the ethics commission to investigate violations of IM 22 itself or “refer the matter to the secretary of state or the attorney general, as appropriate….” Voters reading and approving that text didn’t discount the possibility of our foxy SOS and AG doing their duties, but in case the SOS and AG don’t, voters created one more agent of accountability. IM 22 voters didn’t throw away their belts; they just put on suspenders.
Judge Barnett says, “Without the commission and funding, I.M.22 is a horse without a rider. The court is unable to say the voters would so direct” [parag. 12]. But Judge Barnett could read the text of IM 22 and see the voters did not so direct. They didn’t make all of their desired reforms depend solely on Democracy Credits and the ethics commission. They created new campaign finance limits, restrictions on shell committees used to evade contribution caps, new limits and reporting requirements on independent communications, an extension of the lobbyist revolving-door sit-out period, and an increase in the legal penalty for bribes and threats to influence legislation and legislators, most of which Judge Barnett does not mention (his order focuses on campaign finance) and all of which IM 22 allows to be enforced by existing mechanisms.
To justify his refusal to sever IM22 and allow certain provisions to stand, Judge Barnett has ignored legal precedent and conjured a voter intent unsupported by the actual text that voters read and approved. Attorney General Jackley, we trust you’ll appeal this order to the Supreme Court, beat down this injunction, and restore to law at least some of what we the voters wanted.
On December 8, Judge Mark Barnett enjoined Initiated Measure 22, deeming the funding for the Democracy Credits, the state ethics commission, and the limit on gifts from lobbyists to public officials unconstitutional.
But IM22 has 70 sections, and Attorney General Marty Jackley says a lot of those sections are perfectly constitutional. In a court filing last week, A.G. Jackley (through Assistant A.G. Steven R. Blair, who does the writing) asked Judge Barnett to amend his order and allow 28 of those 70 sections to be enacted:
Not all of these sections matter much. Sections 1 and 2 are mere title and purpose, with no practical impact. The definition of “qualified contribution” Jackley would restore from Section 3 is redundant with the definition in Section 4 and is relevant only to the Democracy Credits that Jackley would leave enjoined.
The additional campaign finance reports and electronic reporting requirements in Sections 21–23 and 28–30 don’t kick in until 2018, but their reinstatement would require the Secretary of State’s office to plan ahead. Also delayed by IM 22’s Sction 70 are the new electronic lobbyist registration and database download capability of Sections 64 and 67.
If Judge Barnett does approve the state’s motion, what goes into effect immediately?
Lower limits on contributions to statewide, legislative, and count candidates and parties and PACs.
End of shell committees created by the same entity to evade contribution limits.
New limits and reporting requirements on independent communications.
Extension of time elected officials must wait to become lobbyists from one year to two, plus extension of that restriction to appointed officers, state agency and division directors, and highest paid staffers in those offices.
Increase of penalty for bribes and threats to influence legislation or legislators from Class 1 misdemeanor to Class 5 felony.
The Republican legislators who sued to protect their free lunches argue that we can’t have even those select sections. Because IM22 contains no severability clause, it’s all or nothing: Judge Barnett can’t throw out one section without throwing out the works. Bunk, says Jackley, who reminds Judge Barnett of the “doctrine of separability” that came up in a case Barnett argued as Attorney General in 1998:
Unconstitutional provisions of a statute may be extracted and the remainder left intact…. The “doctrine of separability” requires this court to uphold the remaining sections of a statute if they can stand by themselves and if it appears that the legislature would have intended the remainder to take effect without the invalidated section [SDEA/Roberts et al. v. Barnett et al., 1998].
IM 22 backer Don Frankenfeld backs Jackley with an affidavit noting that the original draft of IM 22 included a severability clause but that IM 22 sponsors removed that clause on the recommendation of Legislative Research Council director Jason Hancock, who advised in a July 29, 2015, letter to sponsors that no severability clause is necessary in South Dakota laws:
Precedent seems clear: absent proof from the plaintiffs that each section is unconstitutional, Judge Barnett can allow the portions of IM 22 identified by the Attorney General to become law.
Don’t waste your money on lawyer bills or lobbying in Pierre. Go back to where you know you can win, the voters of South Dakota. Rewrite IM22 as a constitutional amendment that includes the following provisions:
Create the ethics commission as a permanent government watchdog attached to the judicial branch with members appointed by the Chief Justice from lists provided by legislative leaders and university presidents.
Fund the ethics commission and Democracy Credits by repealing the sales tax exemption on advertising (all advertising, not just political) and dedicating that money to the Democracy Credit Fund. (Wild math: Nationwide advertising expenditures in 2015 were $311.6 billion; South Dakota puts out 0.25% of national GDP; 0.25% of $311.6 billion is $789 million in advertising expenditures in South Dakota; 4.5% sales tax on that ad spending would generate $35.5 million a year, more than enough to give 540,000 registered voters each two $50 Democracy Credits.
Don’t ban those gifts from registered lobbyists and their employers. Just make them report their value, itemized by recipient public official and reported down to the last penny and pickle.
Take that tack, rally the voters to your side again, and you’ll enact anti-corruption reforms that Judge Barnett won’t overturn and the Legislature can’t touch.
Let us pause for a moment and enjoy the fact that Marty Jackley’s office is doing a better job of winning cases against right-wingers than for right-wingers.
The Thomas More Law Center argued that the Smarter Balanced Assessment Consortium (branded like Fox News—”Fair and Balanced”?) violates the Constitution’s prohibition on interstate compacts. Jackley predecessor-turned-Judge Mark Barnett says the plaintiffs’ alleged facts “seem thin and require artful interpretation” [p. 7]. Judge Barnett agrees that the Smarter Balanced Assessment Consortium is a compact, but he affirms the analysis I offered last November that the SBAC neither usurps federal authority nor subjects states to excessive federal authority. Judge Barnett finds that South Dakota’s agreement with the SBAC does not require it to administer the Smarter Balanced tests; our use of the Smarter Balanced tests and the Common Core standards on which they are based is entirely up to us:
It is worth nothing that the State has complete freedom to regulate its education policies concerning assessments and standards. The State chose to adopt Common Core state standards. The next step was for the State to seek a standardized test which reflects those achievement standards. The State chose the Smarter Balanced test (over the PARCC test or any of the many other tests provided). The State made a broad sea-change in its educational policy and adopted the Common Core standards. If the State decides to change their educational policies and standards again, it is free to withdraw from SBAC and re-instate prior standards or adopt new standards. Ultimately, it is the State’s choice. Because it voluntarily adopted new standards, the State voluntarily joined a consortium to help defray the cost of developing an assessment test while also having some input and decision-making responsibility as a governing member [Judge Mark Barnett, Memorandum Decision, Mauricio and Grinager v. Dennis Daugaard et al. (Case No. 32CIV15-000292), 2016.06.13, p. 16].
Judge Barnett supports his argument by pointing to the withdrawal of Oklahoma, Missouri, Wisconsin, and South Carolina from the consortium. He also notes that Texas never adopted Common Core standards. If they can do it, so can we. We exercised our sovereignty by adopting Common Core and joining SBAC; we can still exercise our sovereignty by quitting Common Core and SBAC whenever we want.
District 16 House candidate Kevin Jensen can joke about “Obama-Core” all he wants, but he and the Thomas More Law Center can’t blame President Obama for Common Core and the Smarter Balanced tests. They need to blame Dennis Daugaard, his Department of Education, and the South Dakota Legislature, who have all willingly and, per Judge Barnett, quite legally bought into the churning charade of standards and tests, standards and tests.
p.s.: Judge Barnett also rejects an argument from the plaintiffs that I actually liked, their contention that the SBAC computer-adaptive tests violate state law by giving students different questions based on their performance question by question. Judge Barnett notes that the statute to which plaintiffs appeal, SDCL 13-3-55, requires that schools give students the “same assessment”, not the “same questions.”