The Special Session is getting bigger! Governor Dennis Daugaard has decided that, while the Legislature is taking more sales tax from South Dakotans, it should also give the next Governor a new law to prevent technical rain on the Saturday inaugural party.
The proclamation itself gives no details on this new project:
The purpose of the special session is to consider legislation relating to two issues. First, the collection and remittance of sales tax by remote sellers. And secondly, the timeframe by which state officers can enter into office [Governor Dennis Daugaard, “Proclamation Concerning the Legislature in Special Session During the Year 2018,” 2018.08.14].
(Had I infinite wealth, I’d consider litigation challenging the validity of a gubernatorial proclamation containing two sentence fragments.)
Governor Daugaard explains that he wants to fix the timeframe for governors specifically and their inauguration ceremony:
By tradition, a new governor and other state officials are sworn in on the Saturday before the beginning of the legislative session. The state constitution requires that the legislative session begin on the second Tuesday of January, which will be Jan. 8 in 2019. Therefore, the inauguration festivities are set for Saturday, Jan. 5.
South Dakota state law, however, states that state officials cannot be sworn in until the first Monday in January, which will be Jan. 7 in 2019, the day before the legislative session begins. This calls into question the legality of an inauguration ceremony on Jan. 5.
Gov. Daugaard will be asking legislators to amend the law so that the inauguration can always be held on the Saturday before the State Legislature convenes, as has been the longstanding tradition.
“It is important to have a clear transfer of the Governor’s Office, without any doubt about the legality of the ceremony,” said Gov. Daugaard. “We have been in contact with Congresswoman Noem and Sen. Sutton, and both candidates agree that we should clarify this statute and remove any question surrounding next year’s inaugural ceremony.”
The Governor added that he hopes legislators will see a bright side: “It means they will be rid of me two days earlier” [links added; Office of the Governor, press release, 2018.08.14].
The Gregorian calendar brings us this complication by landing New Year’s Day on Tuesday. That produces the latest possible first Monday—January 7—the earliest possible second Tuesday—January 8—and the only possible calendrial configuration in which the second Tuesday Legislative opening pushes the traditional inauguration Saturday prior to the legal swearing-in first Monday.
Dang—this inauguration issue could confuse legislators more than the online sales tax legislation.
This calendrial convergence has happened before in inaugural years, in 1991, 1963, 1957, 1935, 1929, 1907, 1901, and 1895. Those convergence came up more often before the 1970s because we had two-year gubernatorial terms back then. I invite readers to track down whether Governors Mickelson, Gubbrud, Foss, et al. held mock ceremonies with real oaths on their legal Mondays or whether they just went ahead and governed without a binding oath.
In an e-mail to legislators, gubernatorial chief of staff Tony Venhuizen says Governor Daugaard “doesn’t want a ‘mock ceremony’ on Saturday, and then for the new governor not to legally take office until Monday.” The simplest statutory fix would thus appear to be an amendment of SDCL 3-1-2 (before the period, insert, “, with the exception of the Governor, who shall enter upon the duties of the office on the Saturday immediately preceding the opening of the Legislature’s regular Session”) or a separate “notwithstanding” statute under Chapter 1-7 on the Governor’s office (“Notwithstanding any other provision of law, the Governor shall take office on the Saturday immediately preceding the convening of the Legislature in regular session.”)
The Special Session can’t get any bigger: Article 4 Section 3 of the South Dakota Constitution says “only business encompassed by such purposes” as proclaimed by the Governor “shall be transacted.” Of course, if the Governor discovers any other technicalities that should be rectified in statute (like most of our election laws?), he could always issue another proclamation. Come on, Dennis! Last call—let’s get our money’s worth out of these legislators!
Speaking of money, remember: in 2015, the Legislature passed a law allowing itself to pay its members and members-elect for attending the “taking of the oath of office.” Technically, one could argue that a “mock ceremony” on a January Saturday preceding the first Monday, under current law, isn’t a “taking of the oath of office” and thus wouldn’t qualify for per diem reimbursement. Ah, maybe that’s why this problem is coming to the fore this year after passing unremedied several times in the 20th century.