I worried a bit about facing Representative Jon Hansen in court last month. After all, Hansen is a lawyer, a legislator, and the author of 2019 House Bill 1094, one of the laws that I’m suing to overturn as unconstitutional. If anyone should be able to clean my legal clock in this case, it’s Jon Hansen.
Sometimes I worry too much. Representative Hansen didn’t support the constitutionality of his bill in the federal courthouse in Aberdeen on December 9 any better than he did in the press last summer.
A casual observer might have had trouble distinguishing Hansen and me in the courtroom. We’re both stringy fellows. We both wore our thinning hair buzzed short, with whiskers of similar stubbly length—his was maybe a millimeter longer than mine. We both wore dark blue suits. In defiance of political expectations, Hansen wore a dark blue tie, while I hid my shirt buttons behind red. (For kicks, I wore my dad’s old cufflinks for the first time—thanks, Dad!)
My attorney Jim Leach subpoenaed Hansen to come to court to testify in person about some things he said in a deposition we took on November 5 in Pierre to learn more about HB 1094, his measure requiring anyone wishing to collect or solicit signatures for ballot question petitions to first register their names, phone numbers, home addresses, occupation, e-mail addresses, and other person information with the state before circulating petitions and wear state-issued identification badges while collecting signatures. In that deposition, Representative Hansen said he wrote HB 1094 with well-connected Pierre lobbyists Will Mortenson and Matt McCaulley. Hansen repeated on the stand on December 9 that he’d had the help of two other people in drafting HB 1094. Judge Charles Kornmann, a former long-time lobbyist in our Capitol, asked if those helpers were from the Legislative Research Council. No, Hansen said, they were two lobbyists.
We also asked Hansen to confirm that he meant what he said in this widely circulated AP article, as it appeared on June 19, 2019, in the Rapid City Journal:
Republican Rep. Jon Hansen of Dell Rapids, sponsor of House Bill 1094, said a South Dakota law that only says residents can circulate petitions is being “trampled on by professional out-of-state petition circulators who are trying to bring their California and Massachusetts liberal agendas” to the state. He said he believes Heidelberger, a former Democratic legislative candidate, doesn’t like the measure because it keeps away Heidelberger’s “out-of-state liberal allies” [“Blogger Wants to Roll Back Initiative Restrictions,” AP via Rapid City Journal, 2019.06.19].
Asked in his deposition if the first half of that passage was an accurate quotation, Hansen said, “I don’t remember saying that, but I don’t have—specifically, but I don’t have any reason to believe that it’s not accurate.” He cautiously accepted the second half as his words as well: “Again, I just remember the general interview. I don’t remember the specific words that I used, but it strikes me as accurate when I read it back.” Hansen similarly affirmed the accuracy of the June AP quote under my attorney’s initial questioning on the stand last week.
Since Hansen was there, and since the state didn’t have any better arguments, Assistant Attorney General Holly Farris asked Hansen to talk about his experience challenging Initiated Measure 26, the prescription drug price cap initiative that Big Pharma spent over $4.2 million (see 2018 pre-primary and pre-general campaign finance reports) to block from coming to a public vote in 2018. Hansen testified that the firm he worked for (HB 1094 co-drafter Matt McCaulley’s Redstone Law Firm in Sioux Falls) hired law firms in other states to track down IM 26 petition circulators. Hansen said that time-consuming search found four to six circulators who, when found during the challenge period, lived outside South Dakota. Hansen noted that his firm won the petition challenge in court on summary judgment before it was able to depose those alleged out-of-state circulators. Nonetheless, Hansen testified that the circulator residency requirement was violated repeatedly on IM 26. When Farris asked how HB 1094 helps the petition challenge process, Hansen said that the circulator registry and badging requirements encourage transparency and compliance up-front in the petition circulation process.
Cross-examining Hansen’s testimony for the state, Leach asked Hansen if there have been lots of initiative and referendum petition drives recently. Hansen said yes.
Leach asked Hansen if the problems he alleged happened with just one petition drive, for IM 26. Hansen had to acknowledge that numerical fact.
“And the challenge worked, right” Leach asked.
“Not exactly,” Hansen replied.
(I would have popped out of my chair and shouted, “What the heck do you mean, ‘not exactly’?! Your billionaire corporate clients got exactly what they wanted: IM26 booted off the ballot!” This is why Jim Leach is a lawyer and I’m a blogger.)
Leach asked Hansen if the challenge knocked IM 26 off the ballot. “Through extensive litigation and discovery,” replied Hansen.
(Mr. Hansen, we didn’t ask what it took to make it work. We asked if it worked. The correct answer is yes, the challenge process, as provided by the laws pre-HB 1094, worked. The challenge process met the state’s interest in preventing a petition that you argued was circulated illegally from sullying the ballot. Your pre-registering and badging of circulators isn’t necessary to serve the state’s interest; you’re just trying to save your law firm and your billionaire clients some money by shifting burdens of proof from parties alleging illegal behavior to innocent circulators who break no law as they collect signatures. But again, that’s me practicing blogging and not law. Shut up, Cor, and listen to your lawyer!)
Leach noted that in the June 2019 AP interview, Hansen didn’t say anything about his experience with IM 26 as a motivation for forcing circulators to pre-register and wear badges. Leach noted that Hansen seemed entirely focused on attacking liberals from Massachusetts and California. Hansen said he didn’t remember the specifics, but he noted that IM 26 petition circulation contractor John Adams was from out-of-state (Maryland, I believe) and the main financial backer (AIDS Healthcare Foundation) was from California. When Leach reminded Hansen that IM 22 was backed by a Massachusetts organization and the Marsy’s Law came from California, Hansen claimed to have had no specific knowledge of IM 22 prior to his deposition in November and was too “pre-occupied” while he was at law school to look into Marsy’s Law.
(Your nose may twitch at those claims. Hansen apparently wasn’t too preoccupied once he finished law school to chat with his Republican Legislative pals in the winter of 2017 and recommend a bill on studying campaign finance that served as cover for the repeal of IM 22. It also strains my credulity to think that a South Dakotan with Hansen’s keen interest in the law, the Legislature, and the undue influence of out-of-state special interests would, while studying law, be oblivious to a statewide ballot measure, sponsored by a vanity-driven California billionaire with no legal training, that was condemned by the state bar association he was aspiring to join. But again, shhh—the lawyers are talking.)
Leach tried to pin down Hansen’s motivations: was it what he said about Cory Heidelberger and his out-of-state liberal allies in June, or was it IM 26 and the out-of-state circulators he was claiming now? Hansen said IM 26 was on his mind when he brought HB 1094, and he discussed Big Pharma’s interest during the Legislative debate on HB 1094.
So, Leach asked, your motivation was different from what you told the reporter?
“Maybe in addition,” said Hansen.
—But you can’t swear that you talked about IM 26 to the reporter?
—I can’t swear to any comment in the article.
Hansen seemed more willing to own what he said in that June news article at the beginning of this conversation than when he realized his statements supported the point plaintiffs could make to demonstrate his law violates the Constitution.
Leach got Hansen to acknowledge that the residency requirement for circulators existed prior to HB 1094 and that HB 1094 does not increase the legal penalty for violating that requirement.
Leach asked if there was any need to address violations of the circulator residency requirement before a petition is submitted. Hansen said he disagrees… but he did not explain what he meant.
(I would suggest Hansen has no basis on which to disagree: violations of petition law don’t exist without a petition. A petition doesn’t exist as an actionable legal document until it is submitted complete with signatures.)
Leach asked Hansen to look at the state’s exhibits F, I, and J, South Dakota Administrative Rules 05:02:08:07, 05:02:08:08, and 05:02:08:09, which establish the forms for petitions for initiated laws, referred laws, and initiated constitutional amendments, respectively. Leach asked Hansen to read those forms and acknowledge that, prior to HB 1094, those forms required every circulator to swear under oath that “I am a resident of South Dakota.”
Hansen declined to attest to the veracity of exhibits offered by his law’s own defense team. Hansen said he couldn’t answer, he had just seen the exhibits placed in his hands, and they may have been changed….
(I think I get why Jim Leach doesn’t yell nearly as much as I imagine I would if I were lawyering. Leach recognizes he doesn’t have to pound every nail clean through the board for the judge. Leach recognizes that if the state comes to court trying to save its bacon and presents the judge with exhibits from state law and administrative rule, it’s going to bring the current version of those statutes and rules. Leach recognizes that at the bottom of each of those exhibits, there should be annotations indicating the effective dates of the last changes… which in this case, for the three rules under discussion, was July 30, 2018. And Leach recognizes that the judge likely recognizes all of this and likely recognizes that the only reason a lawyer and legislator is stumble-bumbling around a simple affirmative answer is that the lawyer and legislator recognizes that his affirmative answer about the plain facts before him knock the legs out from his argument that we need his law to achieve the state’s interests. While I write for a public audience where time is fluid and electrons are free, Leach is speaking to an audience of one, the judge, whose time and attention deserve respect.)
Leach asked Hansen what benefit there is to requiring circulators to surrender their addresses to the state at the start of the petition process. Hansen said the requirement ensures circulators are following the law.
Leach asked Hansen if that interest would be satisfied without the public database. Hansen said he disagrees… but again failed to explain why, and not because Leach was cutting him off and rushing ahead.
Leach then brought Hansen to the core of our concern about forcing circulators to register before circulating: that HB 1094’s public circulator registry invites harassment of circulators in their homes, before they’ve collected a single signature. Leach asked Hansen if the circulator registry would allow opponents to go to circulators’ homes to deter them from circulating.
Representative Jon Hansen, sponsor and co-author of 2019 House Bill 1094, hesitated lengthily, then said of this key provision of his law, “I… am… boy…” then gave up and said “yes.”
Then it occurred to Hansen to mention that circulators are “already on the streets” and that harassment could happen there.
But not at their home addresses, said Leach.
Hansen claimed that this year he encountered petitioners who had their addresses on their petitions. Leach noted that any such disclosure this year, pre-HB 1094, would have been voluntary. He asked Hansen if the state can check residency from a confidential database. “Arguably, I suppose,” said Hansen.
(Jon, I know you’re a lawyer and I’m a debater and we both apparently love to argue, but I’ve got to tell you: some basic points aren’t arguable.)
When Leach finished with Hansen, Judge Charles Kornmann asked the witness if the Secretary of State kept a roster of circulators pre-HB 1094. Representative Jon Hansen, who presumes to write laws on the petition circulation process, at first dodged the question, saying the judge would have to ask the Secretary of State’s office. Judge Kornmann asked again, so there’s no roster of circulators? This time, Hansen said no, not during the circulation process.
* * *
I hope more than our neckties distinguished Hansen from me on the stand. I hope it was clear to objective observers that I’m just a regular citizen studying the law and pointing out where the state has gone too far in restricting our constitutional rights, while Hansen is struggling to piece together excuses for his efforts on behalf of big special interests to erode our rights.