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HB 1004: Legislature Wants to Hire Its Own Lawyers

Apparently dissatisfied with Attorney General Jason Ravnsborg’s subpar performance in court, the Legislature’s Executive Board wants to hire its own lawyer to defend the state’s laws. 2020 House Bill 1004 would empower the Legislature to hire independent counsel to “defend any law, or intervene in the defense of any law, in any civil action or proceeding in which the state is an interested party.” HB 1004 would allow the Legislature to hire its own attorney by a majority vote of the Executive Board or by concurrent resolution passed by both houses.

In an interesting twist, Section 3 of HB 1004 authorizes the House and Senate to assert independent legal positions. I have to wonder if that’s even constitutional: after all, laws express the will not of one chamber or the other but of the Legislature as a whole. If a liberal Senate and a conservative House were to pass a compromise bill but then find themselves in opposition on one component of that bill that gets taken to court, could the two chambers really go to court and argue opposing interpretations of the law before the court? It seems to me that’s why we have one attorney general to represent the state in court: the state is one entity, with one will.

Section 4 authorizes the Speaker of the House and the Senate President Pro Tempore to hire lawyers other than the A.G. to defend their chambers, members, and agents thereof who get sued for their official actions (and Speaker Steven Haugaard knows a thing or two about that!).

And naturally, we taxpayers would be on the hook for this redundant lawyering. Section 5 of HB 1004 raids the million-dollar Legislative Priority Pilot Program Contingency Fund, a small slush fund created by 2015 SB 99.

Teachers and state employees aren’t getting raises, but Legislative leaders want to raid the state piggy bank to hire lawyers to do the Attorney General’s work for him. But I guess if I were stuck with Jason Ravnsborg as my attorney, I’d want to hire backup, too.

11 Comments

  1. Kal Lis 2020-01-06

    If I am reading the bill correctly, it could be shortened a bit.

    Section 1: We plan to pass legislation of dubious constitutional merit.

    Section 2: We will stubbornly defend this dubious legislation to the bitter end.

    Section 3: Taxpayers shall pay for our stubborn defense. A $1000,000 fund is hereby created.

  2. Donald Pay 2020-01-06

    This has become common, unfortunately, in states where government is divided. When Democrat Tony Evers defeated Republican governor Scott Walker and the AG switched to Democrat, the Republican-led legislature passed all sorts of legislation to give itself special attorneys. It’s a little weird to have this happen in states where Republicans control.

    I think Kal Lis has it nailed. I was thinking the bill needed a section 4, but appropriate to the legislative process, the lobbyists, not ordinary citizens, should come up with that one.

  3. Troy 2020-01-06

    I’m flat astounded. This is absolutely nuts and an affront to democracy.

    We elect legislators to pass laws. Once the legislation is passed, your job ends. Not only do we not expect you to do the job of those we elect to to other jobs, we expect you to focus on your own job.

    We elect an Attorney General who makes an oath to perform their Constitutionally defined job. If we deem that person isn’t doing the job, it is up to us to do something about it. This makes them look like petty tyrants.

    But, in a way this all makes sense. Legislators incapable of actually doing their job would have a perverse incentive to impugn others. Stupid and incompetent likes company.

  4. Cory Allen Heidelberger Post author | 2020-01-06

    Kal Lis, you’ve got it. HB 1004 appears to set up a situation where, instead of handling those court challenges with existing resources, we create an opportunity for those out-of-state lobbyists who provide the bill language and committee testimony to now come back and serve as lawyers for their bills. If I were an out-of-state lobbyist, I’d think, what a sweet deal! Not only do I get to lobby the South Dakota Legislature and get paid by my PAC, but now when they get challenged in court, I can get paid to argue the case!

  5. Cory Allen Heidelberger Post author | 2020-01-06

    Donald, that’s a really pertinent point about divided government. One wouldn’t think that would motivate our legislators—after all, when a lightweight like Ravnsborg can beat a real prosecutor like Randy Seiler in an election, the GOP appears to have a lock on the AG’s office and need not worry about losing that lever of power. But in the current situation, HB 1004 seems to serve the same purpose as the Wisconsin instance you cite: the Legislature is expressing a lack of confidence in the Attorney General.

  6. Cory Allen Heidelberger Post author | 2020-01-06

    Troy, interesting observation about the scope and limits of the Legislature’s job. Legislators make the law, then stand aside and let the Executive carry out and defend the law.

    HB 1004 doesn’t make sense in a typical private corporate setting, does it? Does a corporation ever empower any branch to hire its own attorneys and set up a situation where attorneys for, say, Marketing, would advance arguments that would conflict in court with arguments from the lawyers for Human Resources?

    Are there any other branches of state government that hire their own lawyers, independent of the Attorney General’s office?

  7. Troy 2020-01-06

    CAH,

    Exactly. As you said, our government is one entity and the Constitution places the responsibility of doing exactly what the Legislature desires in the hand of the Attorney General.

    BTW, when my division during the Mickelson administration needed a local attorney (sometimes to just show up at a loan closing and ensure legal protocols were followed), we had to get the AG’s consent (making that person a temporary assistant general).

    While there may be a very narrow exception, I know of no agency which is able to hire attorneys not approved by the AG.

    It’s almost goofy for these yahoos to think they can do something the Governor can’t.

  8. bearcreekbat 2020-01-06

    Has anyone found particular language in our State Constitution restricting the legislature from enacting such a statute? Generally a State legislature may enact any law that is not prohibited by that State’s Constitution nor contrary to U.S. Constitution’s limitations on state power.

    The federal government only has the power granted to it by the U.S. Constitution, but a State normally is considered to have plenary power unless prohibited by the State Constitution.

  9. Debbo 2020-01-06

    So the SDGOP put up an incompetent ignoramus for the job. Citizens blindly voted R, thus electing for themselves said incompetent ignoramus, rather than a highly skilled and experienced attorney who happened to be a Democrat. Now the SDGOP can finally see just how incompetent the ignoramus actually is, so they want to hire defacto replacements on an ad hoc basis.

    An incompetent ignoramus became AG of SD because the SDGOP has a cabal of incompetent ignoramuses at the top. Due to them, you South Dakotans will be paying more than double for AG services. (Whoever the SDGOP hires will be much more expensive than the buffoon occupying the AG office.)

    I have great pity for the people working in the AG office. It must be a complete mockery of a law office.

  10. Roger Elgersma 2020-01-07

    The Constitution says that the balance of power is that the legislative and judicial are separate branches. So now with a lack of qualified lawyers to run for AG, they decide to have the legislative branch cherry pick different lawyers for different issues to manipulate the judicial branch. This is corruption going way to far.

  11. leslie 2020-01-09

    My my Troy. Where have you been? Look for spending/budgeting laws that prevent waste of public money.

    Randy Seiler. NOW there was a supremely competent AG we ran for “Stands Next to Warthog’s” current position.

    Instead Republicans elect incompetents like Noem SNTW and Trump. What a disgrace. Deplorable.

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