Governor Kristi Noem’s second executive order of the new year, ratifying and affirming her lawsuit against Amendment A, smells of Matt McCaulley’s lawyering. This queer order is also, like Matt McCaulley, too cute by half.
Let’s read the order itself:
First, in a tangential (?) aesthetic observation, I wonder if the Governor might see if she can find the sharper scanner Dennis Dauagaard’s team used for executive orders, since Team Noem’s scanner fuzzes the text and renders the parchmenty background as a pixellated desert camouflage pattern. But wait—fuzzy text, camouflage… that sounds like exactly what Team Noem is after….
But hey, let’s get to legal work.
First, we need to be absolutely clear about what this order does not do. The Governor is not repealing Amendment A, the voter-approved constitutionalization of cannabis, by executive fiat. The order says in Whereas #5 and Whereas #6 that the initiative process that placed Amendment A on the ballot violated the South Dakota Constitution, but the order does not and cannot remove Amendment A from the Constitution. Only the courts can do that.
What the Governor does order and declare is… well… odd. She acknowledges that, on November 20, 2020, she “directed” South Dakota Highway Patrol Colonel Rick Miller “to commence the Amendment A Litigation on my behalf in his official capacity.” She says Miller has been acting “under my direction” in that lawsuit “at all times thereafter.”
We knew from the start that Noem was backing the lawsuit with state funds; those of us who understand the Golden Rule could easily conclude that our gold-providing Governor was making the rules for the plaintiffs. Her order now confirms that deduction and the paradox that Governor Noem is using her state position to sue the state with the state’s own money.
But wait—that’s not an executive order; that’s a confession. Why cloak as an executive order a simple admission of a fact that most of us had already figured out from her own words?
The substance of this “order” is Noem’s claim that her directing Trooper Miller to file this lawsuit is a proper exercise of her executive power. Citing Article 4 Section 3 of the South Dakota Constitution, Noem claims that she “may, by appropriate action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty or right by any officer, department or agency of the state or any of its civil divisions.” [As your next Governor, I vow to revise every Constitutional provision, state law, and administrative rule to apply the Oxford comma.] The Governor says she has “properly delegate[d]” this authority to Trooper Miller to file this lawsuit and remedy the allegedly unconstitutional initiative process that put Amendment A to a vote.
Again, wait—that’s not an order; that’s a legal argument.
That’s what’s really happening here. Noem’s lawyer Matt McCaulley read the response from the pro-Amendment A intervenors that Trooper Miller and his co-plaintiff, Pennington County Sheriff Kevin Thom, lacking standing to bring this lawsuit in their official capacity. McCaulley re-read the heading of his lawsuit, which declares Miller and Thom the plaintiffs and says nothing about acting on any officially delegated authority from the Governor. McCaulley then said something like, “Oh, crap,” and set his mind spinning for a way to rescue his doomed argument.
That’s what Executive Order 2021-02 is for. It’s not an executive order; it’s a legal argument, a brief that McCaulley should be filing with the court, not the Secretary of State. This order has no binding nature. It certainly can’t rewrite a lawsuit pending in the courts to defuse really good arguments from the defense about standing.
And even if McCaulley puts this text on different stationery and files it as a brief with the Sixth Circuit, it may not save Noem’s lawsuit.
First, notice that Noem’s “order” does not mention Sheriff Thom. She does not and perhaps cannot argue that she can delegate her executive authority to a separately elected county official—that chain of command lacks some links. File this order as a legal brief, and the court can still rule that the defense is right and that Sheriff Thom lacks standing.
Second, the very next line after the Constitutional provision that Noem invokes says, “This authority shall not authorize any action or proceedings against the Legislature.” The initiative process is a legislative function, carried out by the people, who, according to the very first section of the Constitutional Article 3 that establishes the legislative power, “expressly reserve to themselves” the power to petition and vote on laws. Article 3 Section 1 shields the people’s legislative action from the governor’s veto. When we act as the Legislature, the Governor cannot act against us.
Third, if the Governor herself wants to paddle into court with this line, the defense can still swamp her leaky boat with its timeliness argument. Governor Noem’s “order” says not one thing about the constitutionality of Amendment A itself. The Governor’s court filing in disguise claims [emphasis mine] “the initiative process used to place Constitutional Amendment A on the ballot was not proper and violated the procedures set forth in the South Dakota Constitution.” The Governor is seeking to “restrain this violation” with her court action. “This violation” took place well before the election. As the intervenors have already told the court, the time for filing such a challenge—or, now that we are responding to the Governor’s argument, the time for exercising the Governor’s authority to “restrain this violation”—was at the time of the violation, when that process was happening, before voters started marking ballots, before the Secretary of State placed Amendment A on the ballot. The doctrine of laches required the Governor to strike while the violation was ripe, not gamble that maybe voters would reject Amendment A and spare her the trouble of rigging up a lawsuit… and now a court brief masquerading as an “executive order.”
Finally, Noem heads this “order” with some patrio-pablum about how she “took an oath to uphold the freedoms and liberties of all South Dakotans….” Her “order” does not explain how taking an action to overturn a free and fair election (and her “order”, like the rest of her boy Matt’s litigation, presents no evidence of election irregularities) upholds the South Dakotans’ freedoms and liberties.
One would think that this week—this week—would have made clear to all Americans that advocating the overturning of an election betrays our shared democratic values and endangers our Republic. But Kristi Noem concludes this week of insurrection with her own tone-deaf argument that she is defending our rights by fighting to overturn our vote.
Governor Noem has issued a fake “order” in the apparent hope that she can use executive fiat to alter the course of a judicial proceeding. That smells not only of Matt McCaulley’s bad lawyering but of Noem’s own Trumpist authoritarian streak. The court should ignore this fake “order” and toss Noem’s improperly and untimely filed lawsuit. But the voters should pay close attention to this “order” and work up their own order for 2022 for new management in Pierre.