The Legislature considered 37 bills with emergency clauses in the 2018 Session. 33 of those “emergency” bills reached the Governor’s desk and received his signature.
Nearly 12% of the 282 bills enacted this year constituted “emergencies”—by constitutional definition, actions that couldn’t wait until June 24 because they are “necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.”
Really? Let’s check:
| Bill | Title | type |
| HB 1003 | revise certain provisions concerning the content of the campaign finance disclosure reports and to declare an emergency. | campaign finance |
| HB 1012 | revise certain provisions regarding political party status and to declare an emergency. | elections |
| HB 1013 | revise certain provisions regarding voting systems used in elections and to declare an emergency. | elections |
| HB 1019 | revise certain provisions regarding background checks for physicians and to declare an emergency. | health care |
| HB 1040 | provide for the licensing of a professional counselor, professional counselor-mental health, or marriage and family therapist licensed in another state under certain circumstances and to declare an emergency. | health care |
| HB 1043 | authorize the construction of a National Guard Readiness Center at the Rapid City Airport, to make an appropriation therefor, and to declare an emergency. | building/land |
| HB 1045 | transfer funds from the budget reserve fund to support state aid to education and to declare an emergency. | budget |
| HB 1057 | authorize the Board of Regents to contract for the construction of the Madison Cyber Labs (MadLabs) and the demolition of Lowry Hall at Dakota State University, to make an appropriation therefor, and to declare an emergency. | building/land |
| HB 1061 | authorize the Board of Regents to contract for the construction of two athletic and recreation fields and related structures at Northern State University, to make an appropriation therefor, and to declare an emergency. | building/land |
| HB 1062 | authorize the Board of Regents to purchase unimproved real property in Brown County, to make an appropriation therefor, and to declare an emergency. | building/land |
| HB 1064 | expand the options for the beneficial disposition or use of certain real estate located in Minnehaha County, to make certain appropriations, and to declare an emergency. | building/land |
| HB 1071 | authorize the relocation of the School for the Blind and the Visually Impaired and the transfer of its existing real estate and facilities to Northern State University, to authorize actions necessary to accomplish that relocation and transfer, to protect the permanent endowment trust through exchanges of real estate and facilities, to appropriate funds, and to declare an emergency. | building/land |
| HB 1083 | revise certain provisions regarding permits to carry a concealed pistol and to declare an emergency. | guns |
| HB 1096 | provide jurisdiction to magistrate judges for HOPE probation programs and to declare an emergency. | judicial |
| HB 1098 | make an appropriation from the water and environment fund and its revolving fund subfunds for various water and environmental purposes and to declare an emergency. | budget |
| HB 1162 | provide for the placement of a proposed constitutional amendment on the ballot at a special election held at the same time as the next primary election, to make an appropriation therefor, and to declare an emergency. | elections |
| HB 1264 | authorize the construction of the precision agriculture building and certain renovations at South Dakota State University, to make an appropriation therefor, and to declare an emergency. | building/land |
| HB 1281 | revise certain provisions regarding persons on probation and to declare an emergency. | judicial |
| HB 1286 | authorize certain political parties to be classified under alternative political status, to revise certain provisions regarding nominating petitions, and to declare an emergency. | elections |
| SB 151 | revise certain provisions regarding the sale of trailers at special events, and to declare an emergency. | business |
| SB 169 | revise certain provisions regarding confections that contain alcohol and to declare an emergency. | alcohol |
| SB 27 | make an appropriation from the coordinated natural resources conservation fund to the State Conservation Commission and to declare an emergency. | budget |
| SB 28 | make an appropriation for costs related to suppression of wildfires in the state and to declare an emergency. | budget |
| SB 31 | make an appropriation to reimburse health care professionals who have complied with the requirements for certain health care recruitment assistance programs and to declare an emergency. | budget |
| SB 32 | place certain substances on the controlled substances schedule and to declare an emergency. | judicial |
| SB 40 | authorize the transfer of certain surplus real estate in Rapid City to the Ellsworth Development Authority and to declare an emergency. | building/land |
| SB 47 | authorize the completion of the sports performance enhancement facility arena and the outdoor track and soccer complex at the University of South Dakota, to make an appropriation therefor, and to declare an emergency. | building/land |
| SB 48 | authorize the Board of Regents to purchase improved agricultural real property in Meade County, to make an appropriation therefor, and to declare an emergency. | building/land |
| SB 49 | authorize the Board of Regents to purchase unimproved agricultural real property in Brookings County, to make an appropriation therefor, and to declare an emergency. | building/land |
| SB 54 | make an appropriation for the payment of extraordinary litigation expenses and to declare an emergency. | budget |
| SB 56 | make an appropriation to fund tax refunds for elderly persons and persons with a disability, to revise the income eligibility requirements for property and sales tax refunds, and to declare an emergency. | budget |
| SB 74 | create an exception to the minimum difference in age between adoptive parent and child and to declare an emergency. | adoption |
| SB 91 | authorize the Department of Veterans Affairs to provide for the design, construction, and equipping of a state veterans cemetery in Minnehaha County, to create a veterans cemetery fund, to make an appropriation therefor, and to declare an emergency. | building/land |
Seven of the emergency measures had to do with the state budget, making new appropriations or transferring funds to plug holes in last Session’s appropriations. I’d say not running out of money for K-12 before the State Track Meet (House Bill 1045) counts as necessary for the immediate preservation of a public institution.
Twelve measures dealt with state buildings and land. Not making the bulldozers wait unitl to knock down Lowry Hall at DSU (HB 1057) or start grading the new NSU sportsplex (HB 1061, HB 1071) is nice, but the South Dakota Constitution isn’t about nice; it’s about strict use of legal language. If Lowry Hall couldn’t be knocked down until June 24, would DSU immediately cease to function?
Five “emergency” measures relate to elections:
- House Bill 1003 is fun to talk about, since it fixes a Legislative oopsie from 2017. Were it not in effect right now, campaigns could report contributions from “entities”—business, unions, and non-profits—as one aggregate sum. HB 1003 requires campaigns to itemize entity donations over $100, as campaigns must with individual donations. That’s a good thing, but public health, safety, and institutions were never in great peril. Besides, HB 1003 is retroactive to July 1, 2017, so if any campaigns had taken advantage of the Legislature’s 2017 oopsie, they’d have had to submit their itemized donor info eventually.
- HB 1012 fixed a slip in our laws about third parties. HB 1286 went further and brought South Dakota’s laws into compliance with Judge Piersol’s ruling in February on the Lib/Con lawsuit against South Dakota. HB 1012 is nice; HB 1286 is vital for Constitutional order.
- HB 1013 outlaws the use of electronic voting devices that no one in South Dakota was using anyway. That part’s not an emergency. HB 1013 also forbids connecting any “automatic tabulating, electronic ballot marking, or election voting equipment system” to the Internet. Given the Russians’ interest in trolling Western democracy, that’s probably a wise precaution before the primary… but surely Secretary Krebs didn’t need the Legislature to tell her to pull those network plugs before we started voting in the primary.
- HB 1162 pays for G. Mark Mickelson’s special wimpout to Henry T. Nicholas and allows Marsy’s Fix to go on the June primary ballot. Mickelson justifies the early vote as a way to save counties money, but at no point in the hearings on HB 1162 did Mickelson or anyone else say that county governments would cease to function if we waited until November to touch up Nicholas’s graffiti in our state constitution.
Three measures dealing with judicial matters are arguably necessary for public safety and health. HB 1096 allows more magistrate courts to handle HOPE probation programs, HB 1281 strikes some overlap in supervision of probationers, and SB 32 immediately adds some drugs to the controlled substances schedule.
Likewise the two emergency bills related to health care: HB 1019 cleans up statute to allow background checks for doctors seeking expedited licensure, and HB 1040 makes it easier to license counselors and therapists from other states. Public health requires public health workers, and if we’re short, well, then I guess we shouldn’t wait to act.
HB 1083 deals with concealed pistol permits. We absolutely positively had to create a new “restricted enhanced” permit for 18- to 20-year-olds and make the sheriff take concealed pistol permit applicants fingerprints for free. Hmmm…. I don’t feel safer….
SB 151 allows trailer manufacturers to sell their trailers at events lasting three or more days in the state if they get a waiver from a “similarly franchised” in-state dealer. I have no idea how many people that bill effects, but I’m positive it has nothing to do with public health, safety, or the continuing functions of any state agency. SB 151 is not an emergency.
SB 169 saved Holly Jorgenson’s booze-cupcake business. Without casting any aspersions on Jorgenson or her creative entrepreneurship, I’m willing to posit that cupcakes laced with alcohol work toward the opposite of public health and safety. Fixing the law was necessary to the survival of her business, and that’s a laudable goal, but saving a private business is not one of the constitutional criteria for an emergency clause.
SB 74 allows courts to make exceptions to the statute requiring an adopting parent to be at least ten years older than the child he/she is adopting. A woman from sponsor Senator Joshua Klumb’s district, Shelby Holmberg of Mitchell, testified in Senate State Affairs in January that SDCL 25-6-2 kept her from adopting her husband’s son from a previous marriage, a boy she has helped raise for five years. At the time of the adoption hearing last year, Holmberg was 22 and the boy was 13. The law then required the court to refuse the adoption. No legislator could say no to changing that law, and neither can I.
At least a few of these 33 bills, all of which are now in effect, show that the Legislature has passed emergency legislation in response to situations that do not satisfy the constitutional definition of emergency. No one is likely to challenge any of these unconstitutionally enacted laws, since the changes and any harm done are minor, parties damaged by these non-emergency emergencies are hard to identify, and the court process would probably take longer than the 90 days we would have waited to enact these laws under normal circumstances.
But I would suggest that, for constitutional consistency, South Dakota needs to either amend Article 3 Section 1 to expand the definition of emergency to include the situations occurring above or, better yet, acknowledge that the Legislature has rendered the term “emergency” meaningless, strike that meaningless clause from the Constitution, and simply provide the option for the Legislature to pass any bill for immediate enactment with a two-thirds vote from each chamber.
Yup. Most of those are not emergencies under the SD Constitution. HB 1162 is an egregious example of unconstitutional behavior in any number of ways. I would love to refer that one, and shove that one up their rectums. But if you can only do one, the circulator act referral would have priority.
The question I have is this: if a Constitutional Amendment is approved through a voting process set up by a law found to be unconstitutional, is that constitutional amendment, if approved in the vote, void? I think it is worth some attorney looking at this, and a case brought. This vote seems to present issues very similar to the gerrymandering issue that the US Supreme Court is looking at. The Legislature seems to be purposely selecting and deselecting the types of voters it wants to come to the polls through setting up the timing of this election.
Feel free to correct me if I’m wrong, but my understanding is that a bill enacted with an emergency clause can’t legally be referred.
Kurt,
That seems to be the misunderstanding of many folks. In fact, no, an emergency clause is not the same as the constitutional provision which provides the exception to the referendum: “…except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.”
Originally, I believe, the emergency clause was created for real emergencies, but it has long since just become a way to put laws into effect which there was no need for “immediate” enactment or for “support of the state government….” You can all go to legislative hearings on these bills and not hear any valid reason to declare an emergency other than some bureaucrat will say it would make it easier for them if they could get this taken care of fast. Maybe it saves them a few thousand bucks, but that is hardly an earth shattering reason to declare an emergency. Never has any of these bills actually followed any “emergency declaration” by a Governor. It’s one of those lies Legislators tell themselves for doing things against the Constitution. It’s sort of like covering up the clock when they want to go beyond 40 legislative days. It’s a kind of corruption that has become institutionalized in South Dakota. As long as no one calls them on it, they get away with it, while claiming, “What? We aren’t corrupt.”
Most of the time the bills with emergency clauses have no opposition, so there is no one who really cares if they are using a corrupt practice. But consider HB 1162. That bill is unconstitutional in so many ways, and it’s being used to time gerrymander the electorate in a way to select the voters who will show up and vote for a Constitutional Amendment. There is no reason to use the emergency clause except for a corrupt reason.
“Time-gerrymander”—that’s the coolest new term I’ve heard all week!
Kurt, you are correct that the conventional interpretation is that an emergency clause shields a law from referral. However, Donald offers an interesting counter-interpretation by pointing to the separate constitutional clauses in question:
The two sections do not refer to each other. The referendum section does not use the term “emergency.” The emergency-clause section thus appears to leave open the possibility of declaring an “emergency” for any reason.
However, the Legislature clearly ties the two sections together by invoking the language of Art.3 Sec.1 in the emergency clauses it attaches to satisfy Art.3 Sec.22. All 33 of the emergency clauses use one half or the other of the Art.3 Sec.1 language to define their “emergencies”:
That cross-application of language lays the groundwork for resisting Donald’s counter-interpretation in court.
But even if Donald could persuade a judge that the existence of an emergency clause per SDConst 3.22 does not prevent the referral of a law per SDConst 3.1, we might face another fatal hurdle in 3.1. We have the right to refer laws to a vote before they go into effect. All of the above laws have gone into effect. They can’t be referred.
To unwind them, we’d have to persuade a judge to answer yes to Donald’s question of whether we can overturn a law because it was enacted in an illegitimate fashion, which in this case would require a judge to choose to supplant the Legislature’s wisdom with his own and declare that there was in fact no emergency. Even then, a judge might invoke some cautious severability and say that the Legislature’s improper declaration of “emergency” only negates the bogus emergency clause but not the rest of the bill, its affirmative votes, or the Governor’s signature, meaning enactment would simply be delayed until July 1.
I would suspect a typical hearing on such a matter would take more than 90 days, meaning the referral question would be moot. However, it is possible that someday when I have a million bucks lying around to engage attorneys, we could file an immediate suit against an egregious bill with a bogus emergency clause, convince a judge to issue an immediate (say, by April 1) stay on enactment as the only way to preserve the rights of citizens’ referral rights, then run the referral petition. Even if we couldn’t secure the stay before enactment and were denied the right to refer that bad bill, such a push would establish a useful precedent.
Yes, there is a legal argument to be made that would run counter to mine, but it is really negated by just the kind of examples you have presented in your post: mostly these emergency clauses are attached to bills where there is no emergency. The Legislature answers their own argument with an amount of corruption of the process that is legally laughable: no one takes what the Legislature calls “an emergency” seriously. Not even the Legislature takes it seriously, and if they don’t, then a court would, along with me, call, “Bullsh*t.”
In most cases these “emergency clause” bills are non-emergency and non-controversial bills that pass unanimously or with a couple “no” votes, and involve small changes that no one testifies against and no one cares about. That’s the very definition of a “non-emergency” bill. Yet, gasp, the Almighty Legislature, gasp, attaches an emergency clause, gasp, to these bills, because, heavens to betsy, it’s, gasp, a really BAD EMERGENCY, really, wink, wink, nod, nod. I call bullsh*t. And so would any court. And if presented with the facts, as above, and over several decades, they will be forced to conclude that all the emergency clause does is put laws into effect early. They don’t mean there is any emergency.
Now, I have no problem in having a way to put non-controversial bills in effect early, but the constitution does not allow it, and if Legislators actually took their oath seriously, they would fix the system, rather than corrupt it.
I have a big problem when there is a controversial law that has opposition, that has been in the news for several years and some half-assed fix gets slapped with an emergency clause because a corrupt legislator, G. Marky, threatens enough people to get it passed with an emergency clause, because he wants to prevent anyone from attempting a referral. I have no idea if it would be referred, but that’s why we have delayed implementation of bills.
However, even with a fake emergency clause, the bills can be referred. A person would likely have to get the courts to stay implementation of the law pending a court hearing to challenge the emergency clause and mandamus the SOS to proceed as if there were no emergency clause. Then you could go through the petition process.
One other point. Remember how legislators whined about needing more time to implement initiatives? Ha-ha-ah-ah-ah-ha. ‘Scuse me while I change my Depends. I was laughing too hard at their hypocrisy.
Thanks for the explanations, guys. They’re very helpful.
Good point about the bogusness of needing more time to implement initiatives, Donald. I may need to promote that note to a full post.