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Munis Beat Back Coops’ Challenge to Annexation; Schoenbeck Riot Hoghouse Affirms “Business über Alles”

The Legislature had before it five bills to address the conflict between the rural electric cooperatives and the municipal utilities who can unilaterally seize the coops’ most lucrative territory and assets. All have died, signaling the growing power of “urban” over rural interests in the South Dakota Legislature.

South Dakota News Watch depicted House Bill 1262 as the rural electric cooperatives’ greatest hope this Session:

Co-ops, though, helped write and found a sponsor this session for what became House Bill 1262, which they call a compromise. If the bill becomes law, it would force municipal utilities to give notice up to one year prior to taking service territory from another utility, to give co-ops a chance to negotiate for a better deal prior to territory being taken, and to give co-ops the option to challenge a territory taking in court. The co-ops see the legislation as necessary in order to level the playing field and protect their most vulnerable and remote customers from paying excessively high electricity rates [Nick Lowery, “Municipal Growth and Rural Utility Rates at Stake in Electricity Squabble,” South Dakota News Watch, 2020.03.04].

Senate Commerce and Energy tabled that bill—meaning they killed it without debate—on Thursday.

Also gone poofskies are Senate Bill 83 (tabled Wednesday by House Commerce and Energy on a 9–3 vote), Senate Bill 184 (withdrawn February 26), and House Bill 1180 (failed February 24 in House State Affairs 2–10). Most curiously killed was House Bill 1199, which Senate prime sponsor Lee Schoenbeck (R-5/Lake Kampeska) hoghoused Thursday into a surprise rewrite of Governor Kristi Noem’s HB 1117, the new pro-pipeline anti-protest bill. Schoenbeck is now using HB 1199 to strike Noem’s legally vague “riot-boosting” —which Schoenbeck told Senate Commerce and Energy is “a locally created phrase that doesn’t have a history in the law“— and to replace that term with the somewhat clearer “incitement to riot.”

Now amendments, even hoghouses, are supposed to be germane to their bill’s original subject (see Joint Rule 5–14). Senator Jeff Monroe (R-24/Pierre) asked Schoenbeck to explain the germaneness of turning his rural/muni electric war bill into a revision of riot statutes:

Monroe: I don’t see any way that this compares with electrical companies. Can you explain that?

Schoenbeck: It’s an energy policy bill, like the other one was. How’s that? [transcribed from audio, Victoria Wicks, “Riot Boosting Part Two Slipped into Hoghoused Bill, Has to Pass Two Chambers in a Day,” SDPB, 2020.03.05]

If I didn’t know better, I’d think Schoenbeck was using HB 1199 to take two backhanded swipes at the Governor. His statements on his hoghouse could be read as hinting that the Governor doesn’t know how to write a bill with proper legal language (“locally created” is code for “relies on crony advisors who lack experience and legal training”) and acknowledging the Orwellian absurdity of claiming that chilling First Amendment expression is really “energy policy.” But Schoenbeck could have taken those swipes and achieved the same legal effect more easily by offering these amendments to the original riot-boosting bill itself on the Senate floor later that afternoon. Now instead of one conference committee discussion of one bill, Schoenbeck’s hoghouse doubles the work. Why send two bills to do one bill’s work?

The only practical scheme I can think of is that Schoenbeck might smell a referendum push against Noem’s riot-boosting legislation. Unlike last year’s rushed riot-boosting bills (2019 SB 189 and 190), Noem’s HB 1117 has no emergency clause (funny that protecting TransCanada/TC Energy from tribal protest was an emergency last year but is not an emergency a year later), so the ACLU, tribal advocates, environmentalists, and other anti-pipeline and anti-Noem forces could petition this anti-protest bill to the November ballot. By spreading the traps for protestors across two bills, Schoenbeck will be requiring any referendum agitators to carry and submit two petitions and campaign for “No” votes on two separate ballot measures, increasing the cost and difficulty of any referendum campaign.

Whatever Schoenbeck’s motives in his incitement hoghouse, the fate of HB 1199 shows in two ways our Legislature’s narrow governing priorities. The municipalities beat back the rural electric cooperatives challenge to the municipalities’ unchecked annexation power with the claim that they must be able to exercise that power to lure big companies and promote economic development. Schoenbeck’s hoghouse of the last rural/muni-battle bill into a sop to big pipeline companies further demonstrates our willingness to subordinate the rights of South Dakotans to promises of big dollars from foreign corporations.


  1. grudznick 2020-03-08 11:11

    Approved by grudznick. That Mr. Schoenbeck is a rogue caucus of one.

  2. Donald Pay 2020-03-08 14:42

    Just some legal questions for the attorneys out there in DFP-land. Does a riot have to actually occur to have incitement? Can you just shout, “Hey let’s riot,” and even if everyone thinks you’re a bit loony and ignores you, does that count as incitement? If there is no riot, isn’t it just “free speech.” What if you said, “It’s a great day for a riot.” Is that incitement? How proximate to a riot does “incitement” have to be? If I said, “Pick up a rock, and toss it at that cop,” but no one heard me because I’m two states away, is that incitement? Can you have “incitement” without a riot? Does incitement require speech, or can it be by text message? If riot requires three people to act in a violent or threatening way, if just two people act on my instruction to riot, is that incitement? Can I, from Wisconsin, say that I think people should do whatever is necessary to prevent the pipeline from being built, and is that incitement to riot or free speech. Can incitement to riot include the words/actions of the energy company, a private security firm and/or a law enforcement agency? If law enforcement is working with the energy company or the energy company’s security operation, and the security company engages in riot, does that mean the law enforcement agency could be guilty of inciting a riot?

  3. Debbo 2020-03-08 18:59

    This is a question I asked earlier.
    “Can incitement to riot include the words/actions of the energy company, a private security firm and/or a law enforcement agency?”

    I’m sure the SDGOP wants to protect their owners, thus would protect them over South Dakotans. As Jerry said elsewhere, the SDGOP isn’t just pro business. They’re business only. (Did I get that right, Jerry?)

    I’d call the SDGOP anti SD citizens.

  4. Susan Wismer 2020-03-08 23:08

    Stick to the headline: Gov chooses Heartland Power & Watertown/Brookings/Madison/Pierre over REA’s and the rest of the state. Both sides spent a lot of time trying to educate legislators. But it all came to naught when the Governor put her finger on the scales last week. It was a raw display of GOP political power, as former Senate Majority Leader and current Heartland Power District (power wholesaler to municipal electrics) Exec Russell Olson of Madison stalked the Capitol halls during the afternoon the bill died in negotiations with the Governor. She didn’t want to have to make either side angry with a veto or signature, so she told Senate leaders to make sure the bill died before it got to her. In doing that, she chose her GOP donors and power (!) brokers over rural electric consumers. She chose rural over select privileged urban interests, and there weren’t enough rural votes in the legislature (at least rural votes who would act contrary to Gov’s orders, even if it was in their constituents’ best interest) to do anything about it. Leadership complied with her wishes, and Senator Brock Greenfield, who had sponsored the original REA bill, in 2019, capitulated and sent the bill to Senate Commerce and Energy, a committee dominated by Sen. Lee Schoenbeck of Watertown, an ardent opponent of changing the state granted advantage that municipal electric utilities/cities have over REA’s in annexation cases. He sent it there to die.

  5. bearcreekbat 2020-03-09 02:05

    These days information about the meaning of terms used in criminal statutes such as “incitement” is readily available online so you no longer need a lawyer to understand what such words have been found to mean. Wikipedia reports that

    The First Amendment to the United States Constitution guarantees free speech, and the degree to which incitement is protected speech is determined by the imminent lawless action test introduced by the 1969 Supreme Court decision in the case Brandenburg v. Ohio. The court ruled that incitement of events in the indefinite future was protected, but encouragement of “imminent” illegal acts was not protected.

    Wikipedia also offers information about the meaning of “imminent”:

    The two legal prongs that constitute incitement of imminent lawless action are as follows:

    Advocacy of force or criminal activity does not receive First Amendment protections if (1) the advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.

    While later case law may affect these definitions, it appears that most of the hypotheticals presented in Don’s comment would not meet the legal test set out by the SCOTUS for “incitement” because there is no intent to cause, nor likelihood of, imminent criminal behavior. Otherwise, an actual riot is not required since this is considered an inchoate or incomplete crime similar to a failed attempt to commit a crime. And the words of any person or company could constitute unlawful incitement if the words advocated an imminent unlawful act that was likely to occur.

  6. mike from iowa 2020-03-09 09:08

    Advocacy of force or criminal activity does not receive First Amendment protections if (1) the advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.

    So drumpf is guilty of advocacy for telling supporters to hurt protesters at his rallies? And then lying to cover up his original crime?

  7. bearcreekbat 2020-03-09 12:00

    mfi hits the nail on the head. And despite the Senate majority’s determination that Trump is above federal criminal law, under this legal definition any state with a law on the books prohibiting incitement of violence or criminal actions could indict Trump for encouraging people at his rallies to criminally assault protesters. Such comments by Trump would be beyond 1st Amendment protection.

    SD’s hoghoused bill, however, adds the element that the inciter must intend to cause a “riot” as defined by the statute. This element would probably exclude Trump’s incitement of violence at his rallies.

  8. Debbo 2020-03-10 15:50

    From Numlock News by Walt Hickey:

    In 2009, the Occupational Safety and Health Administration initiated a new policy where if an inspection found enough serious workplace safety issues that a business incurred a fine of at least $40,000, they’d put out a press release announcing as much. The point of this shaming was to make other, similar, businesses less likely to pull those kinds of stunts. Turns out it worked! An economist analyzed the impacts and found a press release produced a 73 percent reduction in violations at similar workplaces within five kilometers, a 36 percent decrease within 10 kilometers and 30 percent within 50 kilometers. To produce that same deterrent effect, OSHA would have had to do 210 inspections. The incredibly successful name-and-shame policy was ended in 2017 for, uh, reasons.

    “Business über Alles” indeed!

  9. mike from iowa 2020-03-10 17:14

    bcb, is there a doubt in your mind that any riot in drumpf’s vicinity would bring smiles to his face, whether he intentionally incited it or not?

  10. bearcreekbat 2020-03-11 01:41

    mfi, well there is this:

    . . . [Trump] said] I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump – I have the tough people, but they don’t play it tough — until they go to a certain point, and then it would be very bad, very bad. . . .

    Trump’s words here, it appears to be a vague threat that “tough” supporters in the military and police—who are presumably armed and whose work can involve using physical violence—will do something that will result in a “very bad, very bad” outcome if pushed to a “certain point” by the president’s political opponents.* . . . It could also come in the context of the president’s “vicious” political opponents voting him out of office in the 2020 election, which the president has repeatedly said Democrats cannot win “legitimately.” . . .

    . . . [An] obvious—and plausible—interpretation seems to me to be that the president is suggesting these armed political supporters would respond violently if his presidency is imperiled. . . . .

    On the other hand the Trump reaction might not have been a smile if the women protesting in the Women’s March had begun to riot. Who really knows?

  11. mike from iowa 2020-03-11 08:09

    Thanks, bcb. Politics has gotten really ugly. Go, Joe!

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