The Oscar (and maybe my gubernatorial vote, if he wants to change his mind throw his Packers helmet in the 2018 ring) goes to Lt. Gov. Michels for playing along with a thrilled, “I get to go, too!”, then responding to his wife Karen’s admonition to “Stay with Dennis—don’t go off on your own” with a wonderful politically pregnant pause (o.k., maybe just waiting for Karen to finish her line, but please, allow me my theatro-political readings).
Oh! And then Governor Daugaard contradicts all the fanatic economic developmentism of the SDGOP and waxes environmental!
I hope we don’t become too developed. I think many states, they’ve become so densely populated, they’ve become one big urban landscape, and nature has been overtaken by managed lawns and trees and concrete pavement [Gov. Dennis Daugaard, interview with Larry Rohrer, SDPB Facebook video, 2017.10.11].
Following Senator Nelson’s speech in favor banning legislator–intern/page nookie and letting legislators divide more questions, Senator Curd moved to divide Senator Nelson’s question.
Senator Curd said, “there are perhaps many on the Chamber floor who would like to have the opportunity to consider each one and not to consider them as a package.” Senate President Matt Michels accepted Curd’s motion.
“I’m enjoying the irony,” said Senator Nelson said in later remarks. “You ain’t alone,” said President Michels.
Majority Leader Curd urged his colleagues to resist the divided motions, first because “so far in the chamber I have a perfect record of my motions being accepted without defray. I don’t want to bat less than a thousand as we adjourn for the weekend.”
Senator Curd also said the rules committee had thoroughly discussed the matter and need not revisit the issue.
The latter sentiment received tacit agreement: no one but Nelson rose with any further remarks on either rule change. Fourteen Senators voted for the sexual contact ban, twelve of those same Senators supported the division revision (There was no roll call on these two questions, but the SDPB video appears to show the same people standing.) Both submotions thus failed, and the Senate approved the rules as reported 19–13.
Majority Leader Curd’s motion to divide produced no practical result different from what would have happened had Senator Nelson’s motion been considered undivided. Majority Leader Curd simply extended debate by eleven minutes for the apparent ironiefreude of using against Senator Nelson the very rule that Nelson feels leadership improperly forbade him to use in 2013.
Once again, the South Dakota Legislature is Mean Girls for grown-ups.
Senator Stace Nelson (R-19/Fulton) offered this amendment to the Joint Rules of the Legislature:
1B-3.1 Sexual contact prohibited. No legislator or legislative employee may have sexual contact with any legislative intern or page.
Senator Nelson said this amendment is required to ensure the Legislature fulfills its “obligation to ensure a workplace that is free from any type of sexual harassment, coercion, etc.”
During questioning, Senator Blake Curd (R-12/Sioux Falls) drew an analogy to his military experience, saying that it is “good professional behavior to not be involved with people in your chain of command.” However, Senator contended that such behavior is already covered by Joint Rule 1A-4:
1A-4. Sexual harassment prohibited. All members are responsible for ensuring that the workplace is free from sexual harassment. All members shall avoid any action or conduct which could be viewed as sexual harassment. A member shall report any sexual harassment complaint to the presiding officer of the house to which the member belongs. If the situation is not resolved, the member shall forward the complaint to the Executive Board of the Legislative Research Council [Joint Rule 1A-4, 91st Legislative Session, 2016].
Lieutenant Governor Matt Michels also indicated his impression that existing Joint Rules on sexual harassment cover the situation and asked if Senator Nelson had a definition of “sexual contact.”
Senator Nelson responded that statute defines sexual contact and that, over a week’s consultation, he and the Legislative Research Council had settled on not including a definition in this rule and keeping the wording of this proposal simple.
In response to the question of the extent of existing rules, Senator Nelson obliquely referred to “certain events” that motivated his proposal:
Unfortunately there’s been some things that have been discussed that warranted looking at making it more explicit in our joint rules so that there was no misunderstanding, so that people didn’t—the grey area that has been allowed to be there, this takes it away [Senator Stace Nelson, responses to the Joint Legislative Procedure Committee, 2017.01.11].
Senator Nelson said the sexual harassment rules may not address the unspecified events he had in mind because “a victim is not always aware that they’re a victim.” Senator Nelson added, “It is highly inappropriate for a legislator, a mature legislator, to prey on a page or an intern.”
During brief discussion, Rep. David Lust (R-34/Rapid City) said sexual contact between legislators and pages is clearly covered by the general rule on ethical standards for legislators:
The people of South Dakota require that their legislators maintain the highest of moral and ethical standards as such standards are essential to assure the trust, respect and confidence of our citizens. Legislators have a solemn responsibility to avoid improper behavior and refrain from conduct that is unbecoming to the Legislature or that is inconsistent with the Legislature’s ability to maintain the respect and trust of the people it serves. While it is not possible to write rules to cover every circumstance, each legislator must do everything in his or her power to deal honorably with the public and with his or her colleagues and must promote an atmosphere in which ethical behavior is readily recognized as a priority and is practiced continually, without fail [Joint Rule 1B-1, 2016].
Rep. Lust said he hesitates to itemize every kind of wrongdoing. Rep. Lust said itemizing every violation undermines the concept of a general code of conduct.
Senator Brock Greenfield (R-2/Clark) disagreed, saying that if the code of conduct can spell out sexual harassment, they can spell out sexual contact. Senator Greenfield called it “shocking” that the Joint Rules do not already cover sexual contact between legislators and interns and pages.
Rep. Lust moved to kill the sexual contact prohibition. Rep. Mike Stevens (R-18/Yankton) seconded. The roll call vote was 9–5 in favor of killing the proposal:
Members of the Electoral College are feeling besieged by partisans lobbying them to vote for one candidate or another on December 19. A dramatic surge of electors, largely consisting of mainstream party loyalists, deviating from the recommendation of their states’ voters in large enough numbers to change the expected outcome of the election seems unlikely… but then so did a Donald Trump Presidency, until November 8 at 8 p.m.
In that spirit of unlikelihood, I thus offer South Dakota’s electors—Governor Dennis Daugaard, Lieutenant Governor Matt Michels, and Attorney General Marty Jackley (who said in October they’d Electorialize for Trump, and who now aren’t feeling besieged by calls and form letters, because even though the Electoral College is supposed to make small states more important, folks nationwide still don’t give a rip which way South Dakota votes)—the top ten reasons they should lead an Electoral College revolt and vote for someone other than Trump:
3. Trump’s refusal to step away from his businesses show he’s unwilling to be a full-time President. He even wants us to fly him home to Trump Tower every weekend to get away from the job. Leading the free world is not a part-time job. Hillary Clinton has spent almost all of her career as a public servant; she’s ready to continue working full-time for America. Get back to basics and vote someone who is willing to do the job.
4. Governor Daugaard specifically: you still want Medicaid expansion, right? After slashing the budget to remedy Mike Rounds’s deficit in 2011, reforming the criminal justice system in 2013, fixing the roads in 2015, and raising teacher pay in 2016, you don’t want to spend the last two years letting the unchecked GOP culture warriors in the Legislature drive the agenda. You want one more policy crown jewel. Medicaid expansion is it. Vote for Hillary Clinton. The Republican Congress won’t let her wreak any new havoc, but the gridlock will keep the ACA and Medicaid expansion on the books. Our revenues are lagging; we need the federal stimulus… and 50,000 working but poor South Dakotans need affordable health coverage.
Bonus: Matt, Marty, jump in! Lt. Gov. Michels, your pals at Avera want it. A.G. Jackley, you’re running for Governor in 2018: your donors in the health care industry would love to back you over repeat-ACA-repeal voter Rep. Kristi Noem.
6. If Clinton is a bridge too far, pick Mike Pence. He won’t lie to you. he won’t bobble the culture war you want. He won’t meddle in other nations’ ambassadorial picks or start a war over some foreign newspaper showing his chins. He won’t embarrass your party and imperil your nation.
7. Besides, if you don’t stop Trump now, you’ll have to impeach him later when he starts sending aircraft carriers to provide pleasure cruises for his business partners in Argentina, India, and the Philippines. Why wait? Why let Trump do any damage? Avoid the messiness of an impeachment and make Pence President now.
9. The Electoral College is a remnant of the Founding Fathers’ compromise to keep slave states from bolting. And even after that crazy compromise they still bolted, and we had to fight a four-year war to bring them back. Ingrates! Electors, reject your own slavery-based supremacy and default to the will of the popular vote.
But if you don’t want to reject the Electoral College, then embrace it…
Consider what Alexander Hamilton wrote in Federalist Paper Number 68. The Electors were supposed to stop a candidate with “Talents for low intrigue, and the little arts of popularity” from becoming President. The Electors were supposed to be “men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.”
They were to “possess the information and discernment requisite to such complicated investigations” as the selection of the President, and they were supposed to “afford as little opportunity as possible to tumult and disorder.” They were even supposed to prevent “the desire in foreign powers to gain an improper ascendant in our councils.”
Hamilton was talking about demagogues. The word “demagogue” appears in both the first and last Federalist Papers; in Federalist Paper Number 1, for instance, Hamilton worried about the “military despotism of a victorious demagogue” [Michael Singer, “The Electoral College Was Created to Stop Demagogues Like Trump,” Time, 2016.11.17].
Lieutenant Governor Matt Michels is thinking about running for Governor. The Yankton Republican tells his local paper he’s setting himself a two-month deadline to decide:
“I need to make a decision in two months, maybe within a month,” he told the Press & Dakotan. “I don’t like making a decision 2 1/2 years ahead of the election, but that’s just the way it is.”
Michels cited two major factors forcing an early decision: the process of organizing a campaign, and other candidates already positioning themselves for a gubernatorial run [Randy Dockendorf, “Race Against the Clock,” Yankton Press & Dakotan, 2016.04.20].
I don’t like the idea of having to decide to run in the 2018 election before the 2016 election has taken place. I hark back to 2010, when Kristi Noem didn’t declare her candidacy for U.S. House until the second half of February, just a month before the petition deadline. She managed to raise the money and votes necessary to beat her already-declared GOP primary challengers Chris Nelson and R. Blake Curd as well as incumbent Democrat Stephanie Herseth Sandlin.
Of course, the biggest factor weighing on Michels may be whether he is willing to make the ultimate sacrifice to run for Governor: shaving that mighty mustache. My quick search finds that we haven’t had a good mustache in the big chair since Peter Norbeck.* But remember, Matt: Chris Nelson shaved his manly ‘stache for his 2010 House run, and that got him second place. Second place.
Think about it, Matt: against Noem, Marty Jackley, and G. Mark Mickelson, whiskers would distinguish you in the electoral marketplace. Don’t lose your edge. Be Norbeck. Be Teddy Roosevelt. Be the walrus. Lock down the latent Branstad mustache vote and build from there!
*Update 2016.04.22 15:56 CDT: A shy reader hits the books and corrects me: our last mustachioed governor appears to be Wisconson-born, Watertown HS grad, Hazel farmer Warren E. Green, who served one term from 1931 to 1933. Green finished fifth in a five-person GOP primary in 1930, but because no one got 35% of the vote, the nomination went to the convention, and the GOP picked Green as a compromise candidate on the twelfth ballot. Note that neither Matt Michels nor any other candidate could pull off such a worst-to-first trick today: if no primary candidate gets 35% of the vote, we pit the two top vote-getters against each other in a run-off ten weeks after the primary. This rule applies only for Governor, U.S. House, and U.S. Senate candidates.
Also cool: Green married a woman whose last name was Parliament.
Anderson’s ruling sets the stage for South Dakota becoming a state that allows lawsuits against health providers under a concept known as “negligent credentialing.” At least 30 other states recognize the tort that hospitals have an obligation not to allow health providers to practice.
“Based upon this court’s review of the law and the briefs presented in these cases it appears South Dakota has all the necessary legal precedents as ingredients other courts have found prerequisite to adopting such a claim including a hospital’s duty of care for patient safety,” Anderson wrote [Jonathan Ellis, “Ruling Opens Hospitals to Lawsuits,” that Sioux Falls paper, 2015.10.26].
Judge Anderson also ruled that defendants in cases like the Sossan lawsuits cannot claim peer review privilege as an absolute defense against discovery requests. Judge Anderson says that hospitals’ obligation to the public can outweigh professional confidentiality concerns.
The lawsuits against Yankton hospitals and decision-makers has implications beyond simply making things right for patients and family survivors who suffered losses at the hands of Dr. Sossan. Lt. Gov. Matt Michels, as attorney for Avera Sacred Heart Hospital, is among the defendants named in the pending lawsuits. Licensed Yankton physician Harald Lars Aanning has filed an affidavit in one of those lawsuits stating that attorney Michels played a pivotal role in securing the Avera Medical Executive Council’s (MEC) approval of Sossan’s employment:
If Matt Michels is held liable for subjecting Yankton patients to Allen Sossan’s malpractice, the Lieutenang Governor may have trouble entering the 2018 gubernatorial lottery.
A lawsuit filed Friday in federal court implicates Lieutenant Governor Matt Michels, in his role as lawyer for Avera Sacred Heart Hospital in Yankton, in medical malpractice that led to the death of Frances Bockholt. The lawsuit also seeks to overturn the South Dakota medical peer review laws that kept secret the malpractice of orthopedic surgeon Allen A. Sossan.
Five children of Frances Bockholt are suing Avera Sacred Heart Hospital, Lewis & Clark Specialty Hospital, Dr. Soosan (a.k.a. Alan Abdali Soosan), Dr. Don Swift, Dr. Kynan Trial, attorney Michels, and members of the medical executive and peer review committees of Avera and Lewis & Clark. Sossan/Soosan’s malpractice—unnecessary surgeries that contributed to Bockholt’s death in 2011—and his disruptive, violent behavior in the workplace have been documented in the press and established in court.
This new lawsuit alleges that Avera initially refused to give Sossan privileges to perform surgery at the Yankton hospital. Enter Matt Michels:
89. After the Avera Sacred Heart Medical Executive Committee (“MEC”) initially opposed extending Soosan privileges, Defendant Matthew Michels then intervened, acting on his own initiative and at the behest of the administrations of Avera Health and Avera Sacred Heart Health Services.
90. Defendant Michels misled the MEC. Michels falsely advised the MEC that there was insufficient justification to deny Soosan privileges. Defendant Michels further misled the MEC by arguing that failure to vote to extend privileges to Soosan would result in a successful lawsuit by Soosan against the MEC and Avera Sacred Heart Hospital.
91. Defendant Michels knew or should have known that overwhelming evidence existed to deny Soosan privileges.
92. Defendant Michels also knew that other hospitals had refused to extend Soosan privileges without being subject to a lawsuit.
93. Defendant Michels knew that Faith Regional Hospital forced Soosan out without being subject to a lawsuit.
94. In fact, Michels knew Soosan released Avera Sacred Heart Hospital from liability for “acts performed in good faith and without malice in connection with the gathering and release and exchange of information … in addition to any other applicable immunities provided by law for peer review activities.”
95. Nonetheless, Defendant Michels misled the MEC about the threat of a lawsuit to induce the MEC to change its position regarding Soosan and continued to withhold relevant and accurate information from the MEC during Soosan’s tenure [Bockholt et al. v. Sacred Heart et al., Civ 15-4106, complaint, U.S. District Court of South Dakota, filed 2015.06.05].
Why would Michels mislead his hospital’s medical executive board to employ a doctor with such a terrible record? Money. The plaintiffs allege that Avera Sacred Heart was losing money and brought Dr. Sossan on board because his specialty, spine surgery, offers big profits. Michels, the suit contends, “fraudulently induced the MEC into changing its position in order to improve the financial position of Avera Sacred Heart….”
The Bockholt plaintiffs would have a much easier time proving their case if they could access the peer review proceedings that led the two Yankton hospitals to admit Sossan to practice and led the state to license him. However, state law keeps such evidence secret from everyone except doctors defending themselves in court or checking into the decisions relating to their employment:
Proceedings of peer review committees confidential and privileged–Availability to physician subject of proceedings. The proceedings, records, reports, statements, minutes, or any other data whatsoever, of any committee described in § 36-4-42, relating to peer review activities defined in § 36-4-43, are not subject to discovery or disclosure under chapter 15-6 or any other provision of law, and are not admissible as evidence in any action of any kind in any court or arbitration forum, except as hereinafter provided. No person in attendance at any meeting of any committee described in § 36-4-42 is required to testify as to what transpired at such meeting. The prohibition relating to discovery of evidence does not apply to deny a physician access to or use of information upon which a decision regarding the person’s staff privileges or employment was based. The prohibition relating to discovery of evidence does not apply to deny any person or the person’s counsel in the defense of an action against that person access to the materials covered under this section [SDCL 36-4-26.1].
In addition to damages, the Bockholt plaintiffs ask the court to overturn this statute and others related to the peer review process as violations of the rights to a jury trial and due process.
* * *
In other legal notes, the Bockholt complaint contends that Michels and the other “employees, members, shareholders and agents” of Avera and Lewis & Clark are subject to the Hippocratic Oath. I’m not sure that Michels has ever actively recited those words or signed an employment document saying, “Yup, I’ll follow Hippocrates, too,” but I’d be curious to know if courts have previously taken the position that anyone working for or overseeing a hospital is subject to the oath. As we all know, oaths matter.
The complaint also lays out Sossan/Soosan’s sordid history. Before he became a doctor, Alan Abdali Soosan was convicted in 1982 of five counts of forgery, one count of issuing a forged check, and one count of grand theft. In 1983, he was convicted of felony burglary for stealing answers to a biology test at St. Petersburg Junior College. Soosan then took to spelling his name differently, as “Allen Sossan”, without ever legally changing his name. The complaint argues that Sossan/Soosan has thus been committing perjury in various lawsuits and applications for medical licenses in Nebraska, South Dakota, and elsewhere to hide his felony record.
The complaint goes on to discuss allegations that Sossan has falsified medical records, “maimed or mutilated” hundreds of patients with unnecessary surgery, threatened to kill a Yankton nurse anesthetist, and had sex with a medical device salesperson at work. All of those alleged crimes would have been prevented if medical boards and hospitals had held Sossan accountable for perjury and refused to trust him with patients.