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Greenfield Goes Ad Hominem on HB 1069, Suggests Misconduct by Unnamed Pierre Law Firm

When pressed on the repeal of Initiated Measure 22 at Aberdeen’s crackerbarrel yesterday, our District 2 and 3 legislators often resorted to painting the protestors against repeal vehicle House Bill 1069 as bad people.

Senator Brock Greenfield (R-2/Clark) said the protestors came from out of state, that a Harvard professor (hey! it’s Lawrence Lessig!) paid for the plane that towed a protest banner over the Capitol, that protestors had planned to throw fake money at legislators from the gallery. “The circus came to town,” he complained, planning civil disobedience. He said protestors were emotional, but the “cooler heads” of the legislators prevailed. He thanked Democratic leaders for tamping down protest “that could have gotten ugly.”

Remember that things didn’t get ugly. No arrests occurred in connection with the Legislature’s rush to overturn the will of the people (although the Constitution Party thinks impeachment is in order for certain legislators). No one appears to have acted outside the bounds of the First Amendment. And even if civil disobedience or lesser violations of gallery decorum had taken place, such outbursts, however offensive to our legislators’ sensibilities, would not have affected the merits of House Bill 1069 one bit. The fact that a protestor is emotional or teaches at Harvard or makes Al Novstrup cry by calling him corrupt does not change the fact that HB 1069 overturns the will of the voters and violates the Constitution by addressing multiple subjects and by invoking a fiscal emergency clause when no fiscal emergency exists.

In other words, crackerbarrel attendees yesterday were saying, HB 1069 sucks! and Senator Greenfield and his fellow legislators were saying, No, you suck!

One woman challenged this ad hominem attack directly. She took the mic to tell Senator Greenfield that she attended the HB 1069 protest in Pierre. She sat in the gallery. She said that she and many of the people with her were South Dakotans. She said she heard none of the dire plots for civil disobedience that Senator Greenfield alleged. She asked Senator Greenfield where he got his information.

So challenged on his illogic and disrespect, Senator Greenfield spun hard, trying to apologize without walking back any of his errors other than saying he shouldn’t have said, “The circus came to town” (I don’t think he was saying he didn’t mean it; I think he was acknowledging the line was not politic).

Senator Greenfield admitted some of what he alleged was hearsay. He then said with some caution that some protestors had contacted a Pierre law office to retain legal counsel in case they were arrested for civil disobedience. He mumbled something about attorney-client privilege, then said that staff had relayed the information about the protestors’ request, apparently to the Legislature.

I think we could use some clarification here. Citizens went to a Pierre law office, seeking legal counsel. Someone at that law office shared information about those conversations between citizens and the attorneys they sought to hire with other people.

Senator Al Novstrup said again yesterday that there is no corruption in Pierre. (We’re all scum, but legislators are sterling seems to be Novstrup’s view of himself and the world beneath him.) But the fact that I can’t seek legal counsel in Pierre without worrying that my lawyer or his staff will run to political leaders at the Capitol with details of our conversation seems to be a first-class example of corruption.

I have contacted Senator Greenfield and asked him to clarify his statement. I have also asked him to indicate whether he has reported this possible breach of attorney-client privilege to the state bar association.

Alleged misconduct by a Pierre law firm has as little to do with the merits of HB 1069 as do alleged misconduct and out-of-state origins of HB 1069 opponents. But protestors, if you’re heading to Pierre and are worried about the Legislature over-exerting its authority to quash your First Amendment activities, Senator Greenfield is signaling that you might need to engage lawyers from out of town, since at least one Pierre law firm reports directly to the Legislature.


  1. Mark Winegar 2017-02-05 09:47

    The GOP BS machine is working full-time these days.

    Supporters of the South Dakota Accountability and Anti-Corruption Act (IM 22) came from across the state. Some were bussed in from Rapid City and Sioux Falls while others drove in from other communities. I know of one person who came from Minnesota to take pictures and two others came from Mass. That is 3 outsiders out of hundreds who packed the Senate gallery.

  2. Bob Newland 2017-02-05 09:57

    Brock takes his mother to the legislature to help him put his shoes on the right feet each morning.

  3. Caitlin Collier 2017-02-05 10:01

    Pierre has been a “company” town since Janklow, when state employees were terrified to discuss anything concerning their work while in public places for fear a spy would report them. The FACT (as reported over and over from statements at cracker barrels, email replys, etc.) that so many GOP legislators both refer to HB 1069 as a necessary repeal, while seeming to be completely unaware of the huge beneficial to them changes the bill makes to campaign finance law in SD, indicates that they did not even bother to read the whole bill or drank the kool-aid about unconstitutionality. The need for intelligent, hardworking NEW legislators is overwhelming.

  4. CLCJM 2017-02-05 10:21

    So what Brock is saying that the corruption goes beyond the legislature to the justice system! He can stand in front of his constituents and lie about who the protestors are, reveal a violation of attorney/client privelege and then wants us to believe that he and his Republican cohorts in the legislature are as pure as the driven snow! Voters of SD better be warned! Your rights are being destroyed in every way imaginable!! “Sir, do you have no shame? At long last, have you no shame!”

  5. David Newquist 2017-02-05 10:21

    The legislature is too stacked with the party of corruption, which protects its own, so that impeachment or other discipline of legislators who make false and unsubstantiated statements in public is not a possibility. However, provisions in the Constitution and its derivative articles of state law specify standards of conduct and the level of integrity expected of legislators which were clearly violated at the Cracker Barrel, as reported in published accounts. Let the court of public opinion deliberate on them.

       § 3. Officers subject to impeachment–Grounds–Removal from office–Criminal prosecution. The Governor and other state and judicial officers, except county judges, justices of the peace and police magistrates, shall be liable to impeachment for drunkenness, crimes, corrupt conduct, or malfeasance or misdemeanor in office, but judgment in such cases shall not extend further than to removal from office and disqualification to hold any office of trust or profit under the state. The person accused whether convicted or acquitted shall nevertheless be liable to indictment, trial, judgment and punishment according to law.

    • Misfeasance is the willful inappropriate action or intentional incorrect action or advice.
    • Malfeasance is the willful and intentional action that injures a party.

    20-11-4. Slander defined. Slander is a false and unprivileged publication, other than libel, which:
                 (1) Charges any person with crime, or with having been indicted, convicted, or punished for crime;

    20-11-3. Libel defined. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

    20-10-2. Acts constituting deceit. A deceit within the meaning of § 20-10-1 is either:

                 (1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

                 (2) The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;
    (3) The suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.

  6. Chuck-Z 2017-02-05 10:33

    This is what happens when you attend to many ALEC conferences. Where do they hold those?

  7. Roxanne 2017-02-05 11:39

    Well this just makes me feel all warm and fuzzy!! As a Pierre resident it is nice to know that the eyes of the government are watching me always, anywhere, whatever I do. George Orwell would be proud.

  8. bearcreekbat 2017-02-05 12:02

    As I pointed out on an earlier related thread, today the RC Journal editorial board called the governor and Greenfield out for making false statements about the repeal of IM 22. While the Journal did not use the word “liars,” the message of their editorial comments is that Greenfield and the governor have proved themselves to be liars who can’t be trusted to keep their word.

  9. Greg 2017-02-05 12:17

    Be careful Newland, Brock is a mamma’s boy and his mamma won’t like you talking that way.

  10. Robin Friday 2017-02-05 12:18

    Greenfield can complain all he wants, but ALEC has been bringing right-wing legislation into our state for years, and our right-wing legislators have been eating it up and even wanting us to pay their dues to ALEC at times. Time to vote these birds (and their mothers) out and take back our state. One-party rule has gone too far.

  11. Porter Lansing 2017-02-05 12:36

    Greenfield is now the face of FAKE NEWS in the capitol. Alternative Brock, he’s being called.
    PS … to Herr Grünesfeld, the young German politick from Clark. Of course the circus came to town and they don’t want anymore elephants ruining the people’s show! Take your “poop scoop” and do some work.

  12. Porter Lansing 2017-02-05 13:21

    Sen. Al’s crying about being labeled “corrupt” brings to mind a 14th century Japanese tale about a politician in the same quandry about his public image. We’ll call him Al-san.
    ~ Al-san had an extremely bad temper. Next to his circus grew a large nettle tree which occasioned his employees to nick-name Al-san “The Nettle Tree Senator”. “That name is outrageous!” said the Senator and he cut down the tree. The stump still being left, his workers then referred to him as the “Stump Senator”. More furious than ever, Al-san had the stump dug up and thrown away, but this left a big ditch. From then on he was known as “Al-san: The Ditch Senator”.

  13. Cory Allen Heidelberger Post author | 2017-02-05 13:34

    David, when I read the Constitution Party’s cry for impeaching legislators, I checked Article 16 on impeachment, which you quote for us above. Does “state officers” refer only folks like the SOS and AG? Article 3 Section 3 says each chamber shall be the (exclusive) judge of the qualifications of its members, which means each chamber can expel its own members without the consent of the other, so that’s not impeachment.

    But whichever can unseat a legislator, impeachment or expulsion, neither can be accessed by the court, and the public can’t act until November 2018.

  14. Cory Allen Heidelberger Post author | 2017-02-05 13:42

    False statements, bearcreekbat? Good to hear such a critique from RCJ. Our crackerbarrel crowd heard lots of false statements, but it took Al’s false dilemma to get them to shout.

    I am curious: if a lawyer asks a client why the client is retaining the lawyer’s services, and the client says, “Because I’m engaging in an activity that could lead to my arrest later today,” does attorney-client privilege still bind the lawyer to keep that conversation confidential?

  15. bearcreekbat 2017-02-05 14:00

    Cory, the general rule is that all communications between a potential client and an attorney are confidential. Nolo explains some exceptions:

    The attorney-client privilege protects most communications between clients and their lawyers. But, according to the crime-fraud exception to the privilege, a client’s communication to her attorney isn’t privileged if she made it with the intention of committing or covering up a crime or fraud.
    . . .
    Perhaps the most important consideration about the crime-fraud exception is whether the communication at hand relates to a past wrong, or a present or future one. Communications about past crimes and frauds are almost always privileged, but communications about ongoing or future ones usually aren’t.

    The article provides more details to help understand an attorney’s obligation. But there is no rule that I am aware that would protect an attorney who disclosed a client’s statement to a third party, such as a legislator, rather than to law enforcement.

  16. bearcreekbat 2017-02-05 14:04

    And the statement that “I might get arrested” for an activity is not the same as saying I am going to commit a crime. It is not illegal to protest, but protests can lead to arrests. I would argue that the information from the attorney in your article was more likely privileged and confidential than not.

  17. Lori 2017-02-06 03:39

    I was also in the gallery and rode up with a van load of 100% South Dakotans. I also met other groups of South Dakotans from the opposite side of our state.

    When someone is doing something bad, obviously it is very uncomfortable to have a large audience. Greenfield is obviously lashing out because he resents that so many people were there. Too bad! From now on, a large crowd should always be there to watch what they are doing because the majority deserve no trust.

  18. David Newquist 2017-02-06 06:12

    Some out of state lawyers I have worked with on justice and innocence projects think the phrase “The Governor and other state and judicial officers,” is sweepingly inclusive in “other state.” We were looking at other state officers, not legislators, although they found nothing to exclude the legislators from the transgressions listed, especially “corrupt conduct.” The article giving each chamber the exclusive authority to judge its members specifies “qualifications” as the criterion. And that’s why I say it is not a possibility that any legislator will ever be called out by his/her own chamber. But the question is if that article of impeachment excludes legislators from disciplinary actions through law suits claiming that “violations of trust” have damaged them or their communities.

    South Dakota law is very flawed in the discretion it gives to governing bodies and agencies to protect themselves. My point is that the law does specify standards of conduct, and that it is important to record and publish violations of those standards, even if no one in authority will take disciplinary action. Of course, in the back of my mind is whether Trump will eventually be impeached for his constant lying and the damage his falsehoods have triggered and resulted in on some of his constituents. When state legislators cite false accusations as the basis for legislative actions can that not be used as evidence in a law suit? I think that question is being tested right now on the federal level.

  19. Rough Rider 2017-02-06 09:52

    As I understand IM 22, the Governor would have lost his $4,000,000 warchest, apparently he is planning on running for office.

  20. Cory Allen Heidelberger Post author | 2017-02-06 10:29

    Rough Rider, IM 22 did prohibit Noem and Jackley from converting their campaign funds to their gubernatorial campaigns; that’s why they both announced their 2018 gov campaigns right after IM22 passed.

    However, as I understand it, IM22 would not have prevented Daugaard from distributing his war chest to other candidates (within the campaign finance limits) or converting that $4 million to personal use the way Bill Janklow did when he got his terminal diagnosis.

  21. John W. 2017-02-06 12:58

    See the most recent RC Journal article in which Lynn DiSanto suggests that corruption in Pierre is limited to the executive branch. Legislative corruption is nothing but a fictional observation. Honestly! She threw the Executive Branch under the bus while installing a halo on her head. Novstrup, and Greefield aren’t the only monsters under the bed!!!

  22. Cory Allen Heidelberger Post author | 2017-02-07 20:09

    Ha! John W., it looks like Rep. DiSanto isn’t counting on getting any money from the Governor’s war chest when he retires (and RR, DD has sent clear signals he’s had enough of running for office).

    But EB-5 and GEAR UP did happen under the executive branch. The Legislature simply failed to take any action or act as watchdogs.

    Mathew Wollmann’s sex scandal, however—that happened entirely in the Legislative Branch. Hey, Rep. DiSanto, what did you know about Wollmann’s unethical behavior, when did you know it, and what did you do about it?

  23. leslie 2017-02-07 20:23

    Was Tidemann part of the executive branch when he scratched Rounds back to get him elected US senator (so Rounds could protect CEO salary disclosure as the 2008 fraud on the US economy took down the world, that prompted that protective legislation)? who does Rounds work for? Tidemann?

    Using the Republican SD legislator to cover up fraud is unethical, illegal, criminal, and protects the .01%, certainly no other ordinary citizens they proclaim to represent.

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