American voters disapprove 56 – 17 percent, with 26 percent undecided, of the Republican health care plan to replace Obamacare, the Affordable Care Act, according to a Quinnipiac University national poll released today. Support among Republicans is a lackluster 41 – 24 percent.
If their U.S. Senator or member of Congress votes to replace Obamacare with the Republican health care plan, 46 percent of voters say they will be less likely to vote for that person, while 19 percent say they will be more likely and 29 percent say this vote won’t matter, the independent Quinnipiac University Poll finds.
Disapproval of the Republican plan is 56 – 22 percent among men, 56 – 13 percent among women, 54 – 20 percent among white voters, 64 – 10 percent among non-white voters, 80 – 3 percent among Democrats, 58 – 14 percent among independent voters and by margins of 2-1 or more in every age group [Quinnipiac University Poll, “U.S. Voters Oppose GOP Health Plan 3–1,” 2017.03.23].
So Kristi wants to repeal a plan whose support ratio is 1.1 to 1 and replace it with a plan who opposition ratio is 3.3 to 1? Just how hard is math for you, Kristi?
46% of voters say a vote for TrumpCare will make them less likely to reëlect that Congress critter, while only 19% say it will turn them on. I don’t know if we can extrapolate those numbers to Noem’s bid to jump from Congress to the Governor’s office, but if that ratio held, for every 1,000 South Dakota voters she might pull her way, she’d turn off 2,400. (That’s why Dems angling to be Governor mention today’s vote in every campaign speech in 2018… and why GOP primary voters pick Marty over Kristi, to deny us Dems the chance to drag D.C. baggage into the governor’s race!)
You have a chance to get on the right side of this vote, Kristi. You have a whole Congressional term to return to the drawing board, actually pay attention at hearings, and come up with a health care plan that will cover more Americans, decrease costs, and provide better care. Bail on today’s vote, and take time to write a plan all Americans (or at least more than 17%) can get behind.
NARAL Pro-Choice SD responds negatively to Jackley’s support for preventing women from choosing a safe abortion procedure:
“South Dakota families know that a woman’s health, not partisan politics, should drive important medical decisions. Yet Attorney General Jackley is pushing a medically unnecessary plan that would limit a woman’s access to basic health care and effectively put a politician’s judgment between you and your doctor,” said Samantha Spawn, interim executive director for NARAL Pro-Choice South Dakota. “South Dakota’s legislature rightfully rejected such a restriction last month. As a candidate for South Dakota’s governorship, Attorney General Jackley’s views are out of step with families across the state. It’s time for him to stop trying to substitute a politicians’ ideology for a doctor’s best medical judgment” [NARAL Pro-Choice SD, press release, 2017.03.22].
The South Dakota Legislature considered a bill similar to the unconstitutional Alabama abortion restriction this Session. House Bill 1189 was sponsored by many of the same Republicans who said they had to vote against Initiated Measure 22 because a judge had declared it unconstitutional. HB 1189 failed in its first committee hearing on a 7–6 vote.
Guericke’s defense attorney, Mike Butler, says his client’s only crime was trusting Scott Westerhuis.
“My client is guilty of trusting Scott and Nicole. He worked there for 16 years; I think everybody trusted him. And he exploited it and when he felt he was going to be exposed, he did the ultimate horrible act. The act of a coward. He killed everybody and then he leaves these people standing in the wake and the Attorney General comes in and says, ‘I need a few more people to pay.’ I think it’s just horrible what’s going on,” Butler said [Angela Kennecke, “Defense in GEAR UP Case Claim They Did What Westerhuis Told Them; ‘Everybody Trusted Scott’,” KELO-TV, 2017.03.16].
Attorney General and gubernatorial candidate Marty Jackley argues that GEAR UP can’t fall on one guy:
“It would not have been possible for Scott Westerhuis acting alone to accomplish all that was discussed over the last two days. It took somebody addressing payroll. It took somebody making invoices, it took somebody finding matching grants; it took somebody testifying in front of the South Dakota legislature. There were a lot of things happening beyond just Scott Westerhuis,” Attorney General Marty Jackley said [Kennecke, 2017.03.16].
The defense is arguing that A.G. Jackley is reaching too far in punishing anyone beyond those already dead for the gross abuse of GEAR UP funds. Some of us will argue that as long as Jackley looks no further than Platte, as long as Melody Schopp remains Secretary of Education in Pierre, A.G. Jackley isn’t reaching far enough.
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!
Not to be outdone, Jackley didn’t just write a letter: he went to see Sessions in person, got his picture taken, and issued this press release yesterday listing all the great things he’s done to fight the crime Kristi is complaining about:
“As South Dakota’s Attorney General and the former Chairman of the Nation’s Attorneys General, I am looking forward to working with our federal partners in continuing to strengthen public safety. Law enforcement cooperation in South Dakota involving the U.S. Attorney, Attorney General, State’s Attorneys, Tribal officers, Chiefs, and Sheriffs, sets a high standard on how to better protect communities by developing task forces and sharing resources,” said Jackley. “U.S. Attorney Sessions gave his commitment to work with and seek advice from state and local officials to reduce crime in America.”
There are significant opportunities to strengthen efforts that have been important to our Nation’s Attorneys General which include:
1. Federal partnering and assistance with the Conference of Western Attorneys General agreement with the United Mexican States in combating drug crimes, weapons trafficking and human trafficking. See Conference Western Attorneys General Agreement signed by then Chairman Attorney General Marty J. Jackley, July 20, 2014.
2. Removing Federal immunity that prevents state prosecutors from prosecuting those that assist and make a profit from internet child sex trafficking activity. See the State Attorney General correspondence to Congress of July 23, 2013, co-authored by Marty Jackley (R) and Chris Koster (D) and signed by 49 State Attorneys General.
3. Federal partnering with the National “Campaign for Child Rescue,” a joint partnership of law enforcement, private industry leaders and non-profit organizations led by South Dakota Attorney General Marty Jackley (R) and Virginia Attorney General Mark Herring (D). This program ensures assets and new technologies are deployed to identify and rescue children in every state [links added; Attorney General Marty Jackley, press release, 2017.02.28].
Face time with the feds, list of concrete actions—I’d say Marty wins that joust with Kristi. Well played, Mr. Attorney General!
After the meeting, President Trump announced he has directed the Department of Justice to work with state and local law enforcement to reduce violent crime. In addition, the President announced he has ordered the Departments of Homeland Security and Justice, along with the Department of State and the Director of National Intelligence, to coordinate an aggressive strategy to dismantle the criminal cartels that have spread across our Nation [Attorney General Marty Jackley, yet another press release, 2017.03.01].
On Tuesday, gubernatorial candidate Kristi Noem poked her GOP primary opponent Marty Jackley with a plea to U.S.A.G. Sessions to send in the feds to solve all the South Dakota crimes S.D.A.G. Jackley has apparently let explode.
But what about us non-Republicans? If the election were held today, with no Democrats announced and Mike Huether equivocating and yucky, should we pick a favorite between the two Republicans?
For the moment, I’d pick Jackley over Noem. Jackley has allowed corruption to run rampant in state government (he was there when the state was dealing with its first EB-5 lawsuit, before Benda and Bollen inked the crazy privatization deal), but he also has executive experience in the Capitol. Kristi Noem looks nice, but she doesn’t have to run anything as one meager voice among 435 in the U.S. House. I won’t like Jackley’s leadership, but at least he’d provide leadership.
But Dems, don’t stick me with that choice! Get Stephanie Herseth Sandlin, get Joe Lowe, get me a Democrat who can ride the anti-Trump wave and take the Second Floor in 2018!
SB 95 appears to allow far broader use of cannabidiol than a 2016 bill that would have opened the door for using cannabidiol to treat children with epilepsy. I notice the following differences in the debate over the two bills:
Last year, the only proponents who testified on SB 95 were a couple of parents who use cannabidiol to treat their kids’ illnesses. This year, along with several parents and advocates, three lobbyists for U.K.-based GW Pharmaceuticals and its U.S. operating unit Greenwich Biosciences spoke in favor of SB 95.
Last year, when the more restrictive cannabidiol bill went before House Health and Human Services, Attorney General Marty Jackley testified against the bill. This year, Attorney General Jackley attended the first SB 95 hearing but only sat quietly behind the lobbyists for Greenwich Biosciences.
Last year’s bill gave a detailed scientific definition of cannabidiol: “a nonpsychoactive cannabinoid found in the plant cannabis sativa L. or cannabis indica or any other preparation thereof that is essentially free from plant material, and has a tetrahydroconnabinol level of no more than three percent.” SB 95 defers to the feds and defines cannabidiol simply as “a drug product approved by the United States Food and Drug Administration.” An amendment yesterday added the word “product”.
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?
Joop Bollen pled guilty this morning to one of five felony charges of mishandling funds related to his administration of South Dakota’s EB-5 program. Judge Portra gave Bollen a suspended imposition of sentence with two years of probation, a $2,000 fine, $104 in court costs.
Six days before Bollen’s scheduled trial, Attorney General Marty Jackley appeared in the Brown County courtroom of Judge Tony Portra to read a plea agreement freshly signed by the state and Bollen. In the plea agreement, Bollen admits that, on February 17, 2012, he took $300,000 from a fund that his corporation SDRC Inc. was supposed to hold to indemnify the state in case of lawsuits arising from the EB-5 visa investment program. Bollen purchased Tax Increment Finance bonds on Northern Beef Packers, the beef plant that EB-5 investment helped build on the south edge of Aberdeen. By taking that money, Bollen violated SDCL 44-1-12, a Class 6 felony. Judge Portra asked Bollen if he agreed the Attorney General’s statement; Bollen answered, “Yes, Your Honor.”
Under the plea agreement, the state dropped the other four charges, which included $944,000 in unauthorized withdrawals from funds Bollen/SDRC Inc. were supposed to hold for the state, money that Bollen allegedly converted to personal use. Those other funds and uses were not mentioned in today’s hearing. The state also agreed not to pursue any further charges against Bollen on this matter, to remain silent on sentencing, and not to use this plea against Bollen in pending civil litigation. In addition to his plea today, Bollen agrees to testify fully future proceedings.
Judge Portra asked Bollen a series of questions about his understanding of the plea agreement and his rights. Bollen answered, subdued but sure, “Yes, Your Honor… I do… I have… I am.” Judge Portra asked if Bollen had received any other promises to secure his plea. After a brief querying glance at his attorney, Reed Rasmussen, Bollen said, “No, sir.” Any force, need more time—“No… No, Your Honor.”
What is your plea—“Guilty.”
The defense waived Bollen’s right to pre-sentencing hearing and asked the court to render sentence immediately. Judge Portra asked the state for comment. Attorney General Jackley reiterated the position stated in the plea agreement, that the state would leave sentencing to the court. A.G. Jackley did note that the Legislature has dictated, per the 2013 criminal justice reform bill, that defendants in Class 6 felony cases like this should receive probation, not prison, and that he knew of no aggravating factors to override that presumption of probation. A.G. Jackley also noted that the defendant’s plea had averted the need for a trial.
Rasmussen acknowledged that Bollen had taken the $300,000 and, perhaps extraneously to the charge at hand, had violated his contract with the state to have $1,000,000 in that indemnification fund by the end of December 2011. Still, Rasmussen said, Bollen returned the $300,000 to the bank account within four days of the illegal withdrawal. The only victim of the crime was the state, and no money (including $2.5 million in state money still held in SDRC Inc. accounts) is missing.
Rasmussen said Bollen has already been punished with three years of the media dragging his name through the mud. “I don’t do blogs or Facebook or whatever,” said Rasmussen, but he has heard there are some terrible things out there.
Given Bollen’s lack of criminal record and good conduct since his arrest (he traveled to Europe while on bond), Rasmussen asked for suspended imposition of sentence with little or no probation.
Asked by Judge Portra if he wished to address the court, Bollen said, “I’m fine, thank you.”
Judge Portra said he found Bollen “eligible and a good candidate” for suspended imposition of sentence. Judge Portra said he has given suspended imposition to offenders with “much lesser prospects for rehabilitation.”
Alluding to the defense’s statement about media mud-dragging, Judge Portra said he was choosing his sentence in part to make clear that this case is “far less juicy and salacious” than is otherwise believed. “Benda” and “EB-5” get a lot of press, said Judge Portra, but this crime and this plea are not about Benda or EB-5.
Judge Portra thus declared jail not appropriate. Bollen could have faced two years in prison and a $4,000 fine. Instead, Bollen pays $2,104 and walks home mostly free. Judge Portra imposed two years probation, but without any restriction on drinking alcohol. Judge Portra imposed no travel restriction but noted that Bollen will need to check with the probation officer about limits on travel that may be imposed by the interstate compact on probation rules that South Dakota observes.
Court adjourned. Bollen left, making no comment to the press (even though I asked nicely).
* * *
Attorney General Marty Jackley held a press conference following the hearing (see full video from Aberdeen American News on Facebook). One theme that emerged from his statements to the assembled journalists was that A.G. Jackley views today’s plea deal as an achievement distinguishing his office from federla investigators. He noted that the Department of Justice, FBI, and U.S. Attorney had all failed to find anything in South Dakota’s EB-5 program on which to bring charges. Only his office has brought pursued indictments against EB-5 players—first Richard Benda in 2013, an arrest and prosecution averted by Benda’s untimely death; and now Bollen. Jackley said that contrast shows that the feds have failed to exercise due oversight over EB-5 and that it is up to state authorities to fill the gap with measures like his proposed conflict-of-interest measure, Senate Bill 27 (which would not appear to pertain to the activities for which he prosecuted Bollen, but hey, Jackley is also campaigning on a couple of fronts, so cut him some slack).
A.G. Jackley used this assertion of the superior performance of his office over the feds to avoid my question about whether this investigation has led him to findings or actions against any accomplices, like Bollen’s Georgia business partner Pyush Patel. A.G. Jackley gave no indication that other participants in Bollen’s mishandling of funds have been identified or investigated.
The Attorney General did not mention the oversight USCIS exercised by revoking South Dakota’s authorization to participate in the EB-5 program. When I asked whether today’s plea would help the state make the case to USCIS to reinstate South Dakota’s EB-5 status, A.G. Jackley said that’s a question for the Governor and his Office of Economic Development. He did acknowledge the positive economic impact EB-5 had on several communities.
I asked whether other private entities are holding indemnification funds for the state and whether the discovery of Bollen’s mishandling of secured funds had prompted a review of other funds to make sure no one else was turning such funds into personal ATMs. A.G. Jackley mentioned no other such investigations and said that question should go to the Legislature and the Governor.
I asked A.G. Jackley if the requirement that Bollen “cooperate and testify truthfully” differs at all from the obligation an un-pled Bollen would have had to respond to a subpoena and testify in EB-5 matters. A.G. Jackley said “If there are any future proceedings” (again, no indication of anything in the pipeline), and if Bollen failed to testify truthfully, that action could revoke the plea agreement and subject Bollen to trial. But playing nice, A.G. Jackley said he anticipates no problems with Bollen’s complying with the agreement he signed.