A.G.’s Opinion: State-Tribal Committee Can’t Issue Subpoenas, But GOAC Can

Attorney General Marty Jackley issued an official opinion today contending that the State-Tribal Relations Committee does not have subpoena power.

Since I wanted the State-Tribal Relations Committee to issue subpoenas, I should not like A.G. Jackley’s opinion. If I were Shantel Krebs or Kristi Noem, I’d shout Fake News! and consider the Attorney General’s opinion fully dismissed. But since I’m a rational blogger, I actually analyze the A.G.’s opinion and find it useful.

The Attorney General’s opinion responds to a request from Senator Troy Heinert (D-26/Mission) for support for Sen. Heinert’s October decision as State-Tribal Relations Committee chair to reject calls from committee members to subpoena witnesses to testify about the GEAR UP/Mid-Central scandal. A.G. Jackley says that because the State-Tribal Relations Committee is created by statute (see SDCL 2-6-20 through 2-6-23), and because those statutes authorize the committee to act as a forum for “discussion” rather than an “investigative body,” it does not inherit the usual Legislative authority to subpoena witnesses.

But look who A.G. Jackley says is authorized to issue subpoenas:

In comparing grants of statutory authority, the Government Operations and Audit Committee is clearly provided investigative ability.  This authority specifically includes the ability to “summon witnesses.”  SDCL 2-6-4.  In contrast, the State-Tribal Relations Committee was not so empowered.  Had the Legislature intended to give the State-Tribal Relations Committee similar authority to summon witnesses or secure documentation through compulsory process, it could have.  State v. Young, 2001 S.D. 76, ¶12, 630 N.W.2d 85, 89 (The Legislature “knows how to exempt or include items in its statutes”).  The Legislature did not, but it certainly can, if it is so inclined [Attorney General Marty Jackley, Official Opinion No. 17-06: “The Subpoena Authority of the State-Tribal Relations Committee of the Legislature,” 2017.12.20].

Unlike State-Tribal Relations, the Government Operations and Audit Committee has subpoena power. That’s a point Rep. Susan Wismer (D-1/Britton) made in the minority report that GOAC chair Sen. Deb Peters (R-9/Hartford) and the GOAC Republican majority rejected Monday in its continuing effort to avoid getting tough with recalcitrant GEAR UP scandal principals. That’s the point I made back in July 2014 when GOAC refused to subpoena witnesses with knowledge of the execution of state contracts in the EB-5 scandal.

And notice that Jackley doesn’t split hairs about what kind of witnesses—state workers, contractors, or private citizens—GOAC can subpoena. He just says GOAC can “summon witnesses.”

So if Government Operations and Audit had done its job in the first place, it wouldn’t have driven some legislators to ply their subpoena power via State-Tribal Relations. Chairman Heinert wouldn’t have found himself in this awkward position and wouldn’t have sought the Attorney General’s opinion. And A.G. Jackley wouldn’t have issued an opinion that supports the argument that Government Operations and Audit hasn’t exercised its fullest investigative powers.

Boy, I’m sure glad I read Jackley’s opinion instead of just shouting Fake News! and closing my ears to arguments I don’t want to hear.