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IM22 Doesn’t Force Peters to Choose Between Accounting and Legislating

Today at 1 p.m. in Pierre, Judge Mark Barnett hears the lawsuit Republican legislators and the Family Heritage Alliance have filed to kill Initiated Measure 22, the Anti-Corruption Act that South Dakota voters approved on November 8.

Among the plaintiffs’ arguments is the complaint that IM22’s $100 cap on gifts from lobbyists and lobbyists’ employers to public officials requires legislators and their spouses to choose between their day jobs and legislative service. As I pointed out in my first read of the complaint over Thanksgiving, that’s a false dilemma: IM22 is directed as much at influence peddlers as those to whom they peddle. If an employer doesn’t want to lose employees who legislate or marry legislators, an employer can simply chose not to hire lobbyists.

Plaintiff Senator Deb Peters (R-9/Hartford) acknowledges this hole in her argument in her affidavit to the court:

Sen. Deb Peters, affadavit, Curd et al. v. South Dakota, 32CIV16-000230, 2016.12.05.
Sen. Deb Peters, affadavit, Curd et al. v. South Dakota, 32CIV16-000230, 2016.12.05.

Senator Peters doesn’t have to quit her job. Her clients can decide what’s more important: employing Peters as their accountant or employing a lobbyist in Pierre. If Deb’s accounting is that good (and I have no reason to think it isn’t), her clients can stick with her and just drive out to Pierre on their own to testify on bills on their own behalf, just like the rest of us, without incurring any of the new statutory limits imposed by Initiated Measure 22.


  1. Troy 2016-12-08 10:06

    No, it forces her customers. You are hilarious.

  2. Michael Wyland 2016-12-08 10:32

    I wonder whether a client’s decision might be made unbeknownst to the legislator, and in that case, whether the legislator is subject to penalties despite no action or knowledge on the legislator’s part? If so, would the legislator have cause of action against their client?

  3. Porter Lansing 2016-12-08 10:44

    Jones … Are you saying that because Ms. Peters has to change, that’s reason to deny the will of the voters? Is change such a bad thing it must be avoided to that extreme?

  4. Porter Lansing 2016-12-08 10:54

    PS … A client of Sen. Peters, by the act of hiring her at all, is hiring a defacto lobbyist. Because she works for them, she’s obligated to uphold what’s best for them. e.g. If you want something done in Pierre, get close to someone who can help get it done. That’s defacto lobbying and that’s wrong.

  5. Donald Pay 2016-12-08 11:12

    That seems pretty whiny to me. When you go into public service, you get paid to serve the public. So, if she’s doing accounting work for an organization that hires a lobbyist, maybe she needs to think about who is more important to her. If her client is more important, then she should resign her legislative position. If her public service is more important, she should recommend a different accountant.

    I don’t understand why folks are so ethically challenged that they can’t figure this out on their own. This is why we need this law, apparently.

    When I was on the school board, I resigned from a non-paid position in what I thought was a conflicting entity that was political in nature. Since school board members are supposed to be non-partisan, I saw it as a conflict to be involved in a political entity.

    You make choices in public life, and, if you are ethical, you try to serve your constituents, not yourself. Senator Peters should have learned that long ago, but she didn’t. And now she parades her unethical behavior as some sort of reason to overturn the law. Let me quote Donald Trump:


  6. Porter Lansing 2016-12-08 11:21

    Hear, hear Mr. Pay. They can figure it out, just fine. The new law is the way it is in every other state. Republicans are viewing this as a personal assault on their honesty … which of course was the reason IM22 passed.

  7. Michael Wyland 2016-12-08 11:21

    Donald: Would you have resigned from a *paid* position to maintain your school board seat?

    A state legislator in SD receives $6,000 a year in salary plus a per diem for expenses (hotel and mileage). If they serve on an interim study committee in addition to their at-session service, they receive $159 a day. Legislators receive no retirement pay or employee fringe benefits.

    In comparison, a professional charging for their services (someone like Ms. Peters, for example) commonly charges $150 *an hour* or more. Plumbers and electricians charge more than $100 an hour, and the car dealership where my used car is serviced charges $125 an hour for labor.

  8. moses6 2016-12-08 11:29

    Deb just quit your job and run for the subsidy queens job serve 6 years and be elgible for 16000 a year at age 62. about 1340 a month .Probably wont be enough for you thoughif you win,

  9. Porter Lansing 2016-12-08 11:39

    Mr. Wyland … Excuse me for offering a response to your question to Mr. Pay. Please disregard if I’m out of order.
    Maybe if we take the bananas away from the front of the elephant, the elephant will get mad and go home and let the donkeys work. Donkey’s will work without bananas.

  10. Donald Pay 2016-12-08 11:39

    Well, I’d tie legislative salaries and benefits to teacher pay. For two months work, that comes out around $6,000 on average. They should get retirement benefits, however.

  11. Roger Cornelius 2016-12-08 11:46

    The republican opposition to IM22 is nothing short of the ongoing corruption in South Dakota.
    Why do you support corruption in South Dakota, Troy?

  12. Troy 2016-12-08 11:57

    And under the law, so is a donor to Augustana University.

  13. mike from iowa 2016-12-08 12:09

    A state legislator in SD receives $6,000 a year in salary plus a per diem for expenses (hotel and mileage). If they serve on an interim study committee in addition to their at-session service, they receive $159 a day. Legislators receive no retirement pay or employee fringe benefits.

    Serving your state is/was supposed to be a privilege, not a profession. South Dakota hands out $123 a day per diem. That is 3X more than I get as a full time retiree on SS per day.

  14. Troy 2016-12-08 12:13


    If you can stay in a hotel, eat three meals on the road, and drive to and from Pierre for $123, please submit your plan to Pierre. I’d love to reduce this expenditure. Unfortunately, until we get your suggestion, we will be asking Legislators to lose money every day they serve. Not a big deal for the wealthy but for most this is a hardship on their families.

  15. Porter Lansing 2016-12-08 12:19

    Today, 13 states provide some form of public financing option for campaigns. Each of these plans require the candidate to accept public money for his or her campaign in exchange for a promise to limit both how much the candidate spends on the election and how much they receive in donations from any one group or individual.
    ~ It would seem calling the public financing option within IM22 unconstitutional ignores this precedent.

  16. jerry 2016-12-08 12:23

    In the first place, why is Ms. Peters doing business with people who may be a conflict of interest? Maybe Ms. Peters needs to have her clients sign a disclosure paper that relieves here of that responsibility. Kind of like a Hippa form, but that declares that those she is doing business with are not affiliated with lobbyists or are doing business with her for favors.

  17. jerry 2016-12-08 12:26

    A donor to Augustana University should be able to make the case that the donation is just that with no stings attached for their kid to play on the school’s marble team. The pay for play is just a bribe after all.

  18. John Kennedy Claussen, Sr. 2016-12-08 12:31

    “and the car dealership where my used car is serviced charges $125 an hour for labor”…..

    Yah, then the dealer turns around a pays his employee only about 12 or 13 dollars an hour for that labor, while an accountant pockets most of their labor charge.

    These Republican concerns for IM22 are parochial and self-serving at best. If we truly are led by individuals in Pierre who make $ 150 per hour, then maybe that is where the problem begins.

    Those South Dakota Rep;publican legislators who are crying about IM 22 are merely petulant plaintiffs, who see government service as a peerage right and not a duty and honor. I dare any Republican legislator who is concerned about choosing their career or some of their client base to serving in the legislature to take note of the many jurist in this state who are required to serve for $ 5 a day, while their own normal pay of 10, 11, or 12 dollars a hour barely gets them to the next pay check to begin with….

    Why should anyone be sympathetic to Senator Peters problem? It is an obvious conflict of interest. The proper premise is the universe which IM 22 creates and not the prior crony system that did.

    Our Republican friends either do not understand the concept “conflict of interest,” or else, they either naively or arrogantly believe that that is how government does and should work…… and I am afraid that these pathetic Republican complaints against IM22 are merely another example of the cancer of 40 year one party rule in this state…..

  19. Roger Cornelius 2016-12-08 12:39

    Who is paying the lawyers for the republicans to fight IM22?

  20. mike from iowa 2016-12-08 12:59

    Troy, I suspect there are motels around Pierre that offer discounts for wingnuts- there aren’t enough Dems to include. There are probably restaurants or maybe in house cafeteria where pols could find cheaper foods. Hell they could brown bag it.

  21. caheidelberger Post author | 2016-12-08 13:11

    Roger, the lawyers are from Woods Fuller in Sioux Falls. I’m not sure who’s writing their checks, though one may assume Dr. Curd is a lead funder.

    Say, does it violate the contract rights of employees of the state and counties to prohibit them from serving in the Legislature?

  22. Porter Lansing 2016-12-08 13:25

    Can state legislators balance their public office with other public employment? (33 states say NO)
    YES, if the legislator is not being paid more than once for coincident hours of the workday.
    Except as provided in §§ 3-8-4.1 to 3-8-4.3, inclusive, no person receiving a salary payable out of the state treasury or from the funds of any state institution or department, may, during the period for which such salary has been or is to be paid, receive any other salary from the state or any institution or department thereof.
    No employee of the state including any institution thereof serving on a board, commission, committee or council of the state may receive salary or per diem compensation for serving on such body.
    Any state employee, with the approval of the department head, agency head, or head of the state institution involved, or their designee, shall be permitted to use annual leave, weekends, legal holidays and hours after normal working hours for performing compensable services to a state institution, department, office or agency other than the institution, department, office or agency which is their primary employer. Compensation for such additional services performed during such times shall not be deemed to constitute dual compensation prohibited by § 3-8-4 or § 3-8-4.1.
    Any state employee who shall take leave of absence without pay from his primary employment with the state shall be allowed to accept payment from the funds of other state institutions, departments, offices or agencies for services rendered to such other institution, department, office or agency. Compensation for additional services performed while on leave of absence without pay shall not be deemed to constitute dual compensation within the purview of § 3-8-4 or 3-8-4.1.
    Exception: School Board may pay salaries to teachers serving as legislators.

  23. grudznick 2016-12-08 13:26

    I, for one, find it amusing that in that very same chapter of laws that Mr. H refers to is 2-12-9 which already makes it a felony to give gifts to the legislatures without making it illegal to pay people fair compensation for doing their jobs like the IM #22 would do. The IM #22 appears not only sloppy and poorly written and unconstitutional but also unnecessary.

  24. Porter Lansing 2016-12-08 13:31

    Where did you get your law degree, Mr. Grudznick?

  25. caheidelberger Post author | 2016-12-08 15:38

    But never mind my opinion: Judge Mark Barnett ruled from the bench a bit after 3 p.m. that the IM 22 is unconstitutional. No ethics commission, no Democracy Credits, no $100 cap on gifts from lobbyists… and “gifts” includes Deb’s accountant pay from clients who hire lobbyists. According to Bob Mercer, Judge Barnett said he’s a “bus stop” on IM22’s way to the SD Supreme Court.

    IM22 is thus no longer in effect.

  26. Roger Elgersma 2016-12-08 17:28

    If Deb Peters clients are very good Republicans they would not need government. So why are they hiring lobbyists?

  27. caheidelberger Post author | 2016-12-08 17:41

    Roger, those Republicans hire lobbyists to either keep government off their backs or to do them favors.

  28. leslie 2016-12-08 18:08

    somewhere I read jackley defends IM22, perhaps by hiring outside counsel like Woods Fuller. When lawyers don’t play ball with the state they risk these referrals from Jackley and various state agencys, I would guess.

    Jackley is too busy personally doing things nationally like RAGA former pres. Scott Pruitt recently nominated for EPA head or running for governor or sucking up to Christie to stay on as hern AG, to do the work himself, and would perhaps not even be qualified to do the work. that’s why he has “100 ” staff lawyers working for him and Daugaard, at our expense.

    Pruitt as we all know from the news is the AG for the state of Oklahoma and is seriously in bed with the energy industry and served on the legislature for 8 years previously, I think. Whether he has any real law practice experience is not known. when lawyers find out how hard practicing is they often search out alternative duties like lobbying and legislature or 40 hour gigs like LRC ect….

    Electing trump was the stupidest thing the nation could have done. decades of progress are going to be lost.

  29. Roger Cornelius 2016-12-08 18:33

    How much did the republican party pay for Judge Barnett’s ruling?

  30. caheidelberger Post author | 2016-12-08 20:00

    Roger, I don’t think anyone paid Judge Barnett. We may not have paid enough to Attorney General Jackley—his deputy’s response to Curd et al.’s arguments isn’t exactly thunderous.

  31. grudznick 2016-12-08 20:20

    Lots of French Math and Barroom Legal opinions being thrown around on this and it entertains me greatly.

    grudznick laughing.
    grudznick laughing.

  32. Tom Doniphan 2016-12-09 01:41

    It’s my understanding that Judge Barnett’s ruling is just a temporary injunction, not a final ruling on the matter. Not what IM-22 supporters hope for, obviously, but hardly a death-blow.

  33. caheidelberger Post author | 2016-12-09 05:19

    True, but as he enjoined, Judge Barnett made clear that he finds IM22 unconstitutional.

  34. mike from iowa 2016-12-09 06:24

    Does Barnett’s ruling get interpreted as their isn’t a corruption problem in Dakota politics or there is but no citizens will be allowed do anything about them?

  35. caheidelberger Post author | 2016-12-09 09:34

    Mike, Judge Barnett ruled from the bench, reading from handwritten notes on yellow legal pad, says Mercer, so we don’t have a written ruling to analyze (which drives me nuts! As your next Governor, I will push legislation requiring judges to blog all of their bench rulings within 24 hours… plus I will push the UJS to put all court documents online within 24 hours of filing for free).

    But in general, I will say that we don’t have to read any evaluation of the corrupt state of government into the ruling itself… and we wouldn’t necessarily want a judge to do so. All a judge should be looking at is the constitution, the law, and precedent. Whether or not corruption exists, we cannot have unconstitutional laws. A law may serve a real need, but it must also follow the constitution.

    The state did argue that IM22 served the important state interest in tackling corruption and holding public officials accountable. However, as the plaintiffs argued, the state did a shoddy job of demonstrating exactly how the various provisions of IM22 serve those interests. As this case proceeds, we need to watch Marty Jackley to make sure our Attorney General is arguing this case as hard as he needs to be on our behalf.

  36. bearcreekbat 2016-12-09 11:00

    Which constitutional provision or provisions did the Judge find that IM22 transgressed? I have seen several news stories about his ruling but none of the news stories seem to identify whether this law violates the federal or state Constitution nor indicates which section of either Constitution was violated. There also have been hints that only part of the law is unconstitutional while many sections may be valid, but again which part or parts of IM 22 did the Judge find to transgress either Constitution and what is the basis for the finding?

  37. bearcreekbat 2016-12-09 11:33

    Never mind – I see that Cory answered these questions in a separate post in his DFP today.

  38. Lawyer defending another lawyer 2016-12-09 16:03

    The AAG did what he could with the case he had.

    Rule 3.1 Meritorious Claims and Contentions

    A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

    A lawyer of conscience will make what arguments they believe they are ethically allowed to make, and not make arguments that they themselves believe are unconstitutional.

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