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Noem Disguises Weak Legal Argument as Executive Order on Amendment A Lawsuit

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:

Gov. Kristi Noem, Executive Order 2021-02, 2021.01.08, p. 1.
Gov. Kristi Noem, Executive Order 2021-02, 2021.01.08, p. 1.
Gov. Kristi Noem, Executive Order 2021-02, 2021.01.08, p. 2.
Gov. Kristi Noem, Executive Order 2021-02, 2021.01.08, p. 2.

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.

But there’s a lot of that thinking going around among the folks Noem hangs out with.

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.

27 Comments

  1. Mark Anderson 2021-01-09

    The communist kristi simply wants to control the masses comrades.

  2. Jenny 2021-01-09

    Why is she so against a little weed? The state will rake in millions of dollars and provide jobs. It would do her and the other GOP whack jobs some good to mellow out a little from their hatred of democrats by trying a good bowl.
    Mellow out republicans, don’t be so full of radical hate.

  3. jerry 2021-01-09

    Gnoem is a fascist who does the business of the beverage company’s, on taxpayer dollars They are against weed as it might hurt their poison. Will need to be nationally legal to make it work and that’s coming.

  4. 96Tears 2021-01-09

    Does this mean COVID Kristi realizes she is governor of South Dakota? When is she leaving the state to stump for more losers like Trump, Loeffler and Perdue? She seems to have the Midas-in-Reverse magic touch.

  5. Donald Pay 2021-01-09

    She even lies about her oath. The oath she took is to the Constitution, which includes the initiative process as part of the legislative process, the laws under which the initiative was brought and the Amendment itself, since it is now part of the Constitution. As you point out, this Executive Order is just an attempt to paper over her illegal behavior in strong arming a government employee into bringing a bogus lawsuit that violates the separation of powers.

    There is no Constitutional ability for a Governor to veto initiatives, and in particular Constitutional Amendments. This lawsuit is a patently unconstitutional effort to subvert the initiative process and, even more, the Constitutional prerogatives of the Legislative Branch. If the Governor can involve itself in this manner, not only is the initiative process further threatened, but the Legislature itself now becomes subsumed into the Executive, in violation of her very oath. She no longer has to veto a bill passed by the Legislature. She can find some technicality and bring suit, depriving the legislative branch the opportunity to override in the case of a bill. However, this would totally usurp the legislative branch’s sole role in terms of offering Constitutional Amendments for the people to approve or dissapprove.

    We have separation of powers in this country for a reason. One is to prevent tyranny, the kind of tyranny Noem tries rather incompetently with this suit. I think she probably was advised of this, which is why she attempted at first to hide behind some law enforcement flunkies. I think her lawyers found out it was not going to be that easy to draw an iron curtain around her tyrannical efforts. Thus, we get this rather pathetic Executive Order, which exposes that she is the would be tyrant behind the curtain.

    This lawsuit must fail to save the State of South Dakota from tyranny. Noem should resign.

  6. Nix 2021-01-09

    DELUSION
    An idiosyncratic belief or impression that is firmly maintained despite being contradicted by what is generally accepted as reality or rational argument.
    Typically a symptom of mental disorder.

    Any questions?

  7. Jake 2021-01-09

    I agree, Donald Pay, that Noem should resign. But, those that put her in charge bear the fault , too for her being voted in. Falling for a former ‘queen’, an erst-while representative in Congress taking selfies on the Great Wall of China, and a Maga loving flag carrier looking pretty can hardly be called a good governor, or much more than a cheap advertisement for our state. She belongs in Trump’s camp of deplorables like the ones that raided our capital.

  8. Whitless 2021-01-09

    I agree that this Executive Order probably does not save the standing issue for the reasons set forth by Cory. The order may open the opportunity for discovery as Gov. Noem claims that she instructed Sheriff Thom and SDHP Supt. Miller to bring legal proceedings. A legitimate area of inquiry is when she “instructed” the afore-mentioned law enforcement officers to bring suit and the documentary trail of that instruction. Was it actually prior to commencement of the lawsuit? Depositions of the governor, sheriff and Highway patrol supt. may be appropriate as well as electronic discovery of emails and correspondence.

  9. Lui 2021-01-09

    Is she a farmer or rancher? I am thinking either her family is against growing weed or they are ranchers only. If it benefited her it seems she wouldn’t be doing this.

  10. grudznick 2021-01-09

    Should Ms. Noem resign, the Rhoden Rhangers stand ready to come forth with a number of volunteers for the new cabinet who will work without pay. I don’t mean without Mr. Pay, I mean without giving them money. Among these volunteers are some who are very pro-environmentalist. Some are not, but there are a couple who are. They want to be in charge of the Department of Environmental Agriculture.

  11. bearcreekbat 2021-01-09

    I agree totally that Noem’s lawsuit is beyond the scope of a Governor’s constitutional authority in South Dakota. Indeed, as so many others have pointed out, the SD Constitution provides no explicit authority for a Governor nor any one else within the executive branch to independently challenge a constitutional provision. Instead, the Constitution sets out a specific remedy whenever the Governor has any doubts about the validity of a section of the State Constitution. Article V vests the power to determine the validity of a law in the judiciary and Section 5 explicitly provides:

    The Governor has authority to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power and upon solemn occasions.

    The Supreme Court has recognized that a Governor may use this provision when he or she has doubts about whether the process in enacting a law violates the Constitution’s requirements.

    Pursuant to Article V, § 5 of the South Dakota Constitution, you have requested an opinion of the Supreme Court on important questions of law concerning provisions in Article IV, § 4 of the South Dakota Constitution as it relates to executive action on certain bills that you believe may be unconstitutional for having been passed by the Legislature in an untimely manner.

    [¶2.] “In the past, we have answered questions regarding the constitutionality of legislation before the Governor for his approval or disapproval, and did not reject such a request on the basis that the matter was not final. . . .

    In Re Request of Governor M. Michael Rounds for an Advisory Opinion in the Matter of Interpretation of SDCL 1-5-1 and 1-5-2 and South Dakota Constitution Article IV, Section 4, 2003 SD 30.

    In this case, just as with Noem’s lawsuit, the question addressed whether the adoption of a law complied with the Constitution’s procedural requirements for adopting a law, namely a Constituional 40 day limitation for enactment of legislation. Rounds asked for the advisory opinion prior to signing the bill into law, hence “the matter was not final” when presented to the Court. The Court’s relatively concise opinion upholding the law is worth reviewing.

    https://ujs.sd.gov/Supreme_Court/opiniondetail.aspx?ID=1100

    Since Noem has now admitted that her lawsuit was intiated pursuant to supposed executive authority as Governor, at least a couple points now appear rather obvious.

    First, even if her lawsuit is treated as a poorly articulated request for an advisory opinion, then the circuit court lacks jurisdiction. Section 5 vests jurisdiction in the Supreme Court on such questions.

    Second, and perhaps more importantly, since the Constitution explicitly provides a single judicial remedy whenever a Governor has doubts about “important questions of law involved in the exercise of his executive powers,” which necessarily includes the validity of a provision of the Constitution since the Governor has the duty to uphold and enforce such provisions, it is clear he or she cannot legitimately avoid the Constitution’s explict language to address the issue, rather she must comply with the Constitution if she has serious doubts about the validity a law she is duty bound to enforce. I may have missed it, but I simply saw no Constitutional authority for a Governor to ignore Article V, Section 5 of our Constitution and, instead, direct an underling to use taxpayer dollars hiring private counsel in an attempt to prove a South Dakota law invalid. Instead, as others have pointed out, State law explicitly requires the State to defend our laws and Constitutional language, which is exactly why the Attorney General is doing so in this case.

    Based on the above analysis it appears that the Executive Order has brought into the light a plainly unlawful act by Kristi Noem.

  12. Cory Allen Heidelberger Post author | 2021-01-09

    Whitless, you make a really good point, one I hope Brendan Johnson takes up. Governor Noem made this claim of her legal authority/standing on January 8. The lawsuit was filed on November 20. It’s not enough that she assert after the fact that she directed Trooper Miller to file it. She needs to provide proof that she provided such direction. A delegation of such important executive authority has profound consequences and should be clearly documented; there should be some written directive from the Governor prior to the filing of the lawsuit on November 20. Governor Noem should produce the records of her contacts with counsel, billing information, etc. to establish the timeline of her ownership of this litigation. If she can’t do that, this lawsuit gets thrown out for standing with no need for a ruling on the merits.

    Brendan Johnson and the A-Team should immediately subpoena all records from the Governor’s Office and the SDHP pertaining to this delegation of executive authority.

    Even if Noem can cough up proof that she isn’t just covering her legally malpractive keester after the fact, she only saves Miller; Thom now must be out as a plaintiff, because Noem did not delegate any authority to whom to act in her stead as a plaintiff.

  13. jerry 2021-01-09

    Why is it that republican in South Dakota only know lawlessness? Why is that? Old Miller might be in the hot seat, will he be retiring to spend more time with his family?

  14. grudznick 2021-01-09

    Mr. Miller is not a Trooper. Troopers are the worker bees of the Highway Patrol. Mr. Miller is the commanding officer, Colonel, and Superintendent. I recognize many of you don’t like him but you should call him Colonel or Superintendent. At best, it’s inaccurate to call him a Trooper. At worst, it’s Trump-like disrespectful. He is not a Trooper.

  15. John 2021-01-09

    Cory, thank you. Consider in addition your first point of order analysis that perhaps its less a confession, than it is bragging. Authoritarians, autocrats, and tyrants love bragging, as recently seen from the treasonous insurrectionists.
    https://www.youtube.com/watch?v=c14vfq3jqpo

  16. Cory Allen Heidelberger Post author | 2021-01-09

    BCB, that’s a really smart application of Article 5 to the Governor’s stab at Article 4.

    Clearly, Article 5 allows the Governor to demand an opinion from the Supreme Court, not the Circuit Court, on matters related to Amendment A. She could ask the justices to explain whether she can legally enforce a Constitutional provision that was placed on the ballot contrary to other provisions of the Constitution and/or state statute. That’s a tricky question, because no one has established or even argued that the provisions of Amendment A themselves, if written into our Constitution, would violate anyone’s rights or any higher Constitutional obligation.

    BCB gets me thinking more about Article 4 Section 3. Let’s look at her justifying clause again:

    [The Governor] 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.

    I assume “proceeding” may include seeking a court order… although BCB’s Article 5 analysis makes me wonder if Noem runs afoul here of “appropriate”.

    Article 4 Section 3 requires Noem to “enforce compliance” with constitutional mandates. That would include enforcing compliance with the Constitution’s new single-subject rule and its convention requirement for constitutional revisions. If Amendment A’s sponsors violated either of those provisions, such violation occurred in 2019, in the summer when the sponsors drafted and submitted their petition for review by state officials and in the fall when they circulated their initiative petition calling for submitting a multi-subject constitutional revision directly to the voters without a preliminary constitutional convention. She chose not to invoke her power to enforce those constitutional provisions then and let Amendment A proceed to the ballot.

    To metaphorize, Trooper Noem saw Brendan Johnson and his friends speeding along I-90 in an overloaded truck. She chose not to ticket them at that time. She didn’t even pull them over to issue a warning. She let them go on their merry way without lifting a finger. Over a year later, long after Brendan got to where he was headed and sold his cargo, Trooper Noem has decided she wants enforce those traffic laws in an effort to annul the perfectly legal business he did when he reached his destination.

    Can a trooper clock me at 85, choose not to pursue and ticket, then come knocking on my door 15 months later to write me a ticket?

    Whether Noem can invoke her duty to enforce compliance this long after the violations is dubious. Whether she can annul all the legal activities that happened after those initially unenforced violations is even more doubtful.

    The other part of Noem’s authority in this portion of Art 4 Sec 3 is to “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.” Cross-examination questions for Noem:

    1. What power, duty, or right is being violated?
    2. What state officer, department, or agency is committing that violation?
    3. How does your action restrain that violation?

    Noem is going to have to answer each of those questions to make this argument stick.

  17. Mark Anderson 2021-01-09

    But guys, she’s the prettiest governor in America, you’ve got to give her some slack.

  18. grudznick 2021-01-09

    That young Ms. Reynolds in Iowa, Mr. Anderson, might be prettier. I defer to Mr. mike, who is the out-of-state name-caller with the closest ties to Ms. Reynolds to confirm.

  19. Pat Meyer 2021-01-09

    Reading the proclamation, one would think that the State of South Dakota is “her” state, not the people’s State! How Trumpy can she get? The US of A was his thru the last 4 years…. can’t she at least word her “dictates” as on behalf of the People of South Dakota? (Who it seems she is getting quite heavy handed.. didn’t the people vote the issue into law?) Who is boss, her, or her bosses? Who gave her the authority to overturn the wishes of the electorate?

  20. sx123 2021-01-09

    It’s probably been said, but she trusts the citizens of SD to make good decisions regarding covid, but when it comes to marijuana, citizens can’t make good decisions on their own?

    Make up my mind…

  21. Dave 2021-01-09

    Didn’t her lapdog Fury say she had nothing to do with the lawsuit shortly after it was filed? So at best this is an admission to the people of South Dakota that she’s willing to lie to our faces and not even bother to correct her minions when they speak untruthfully.

  22. mike Livingston 2021-01-10

    I am Agape when I ponder the bounty of ignorant respounces in the day to day banter of the respondents to this platform

  23. mike from iowa 2021-01-10

    Reynolds, like noem, is uglier than nine miles of rough road on the inside, where it counts,but, doesn’t show. Never forget, the souls dying of covid, due to magat’s incompetency and inactions, were once clusters of cells magats were willing to to go to the mat to force their live births.

    I don’t believe there is a hell, but could see these two alleged leaders sharing the same cardboard box on any street corner in hell.

  24. leslie 2021-01-10

    “Official capacity” of LEO is now shown as compromised. Noem wears the tactical camouflage cap of the radical militias that are anything but legitimate. The alt-universe Noem dog whistles is not factual.

  25. Ray Tysdal 2021-01-10

    I wonder if anyone has told the governor that the 54% who voted for recreational pot and the 69% that voted for medical marijuana will probably vote against her if she succeeds in thwarting the will of the voters.

  26. Donald Pay 2021-01-10

    Ray, It would be great if people voted that way, but it’s rare when votes on initiatives are correlated with votes on candidates. The opposing candidate has to make it an issue, and usually they have other issues they are running on.

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