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Legislature, Governor Violate Single-Subject Rule 59 Times So Far This Session

My commentary yesterday on the fact that Governor Kristi Noem’s own bill to stall Initiated Measure 26 violates the very single-subject rule that she invoked to repeal Amendment A got me thinking: how many bills that the Governor has already signed this Session violate the single-subject rule?

According to the Legislative Research Council, as of this morning, the Governor has signed 60 bills into law. The LRC posts the subject of each bill. For 59 of those 60 enacted bills, the LRC lists more than one subject:

2021 SB 73 subjects
Hello, multiple subjects…. 2021 SB 73
2021 SB 2 subjects
2021 SB 2 subjects
2021 SB 7 subjects
2021 SB 7 subjects
2021 HB 1009 subjects
2021 HB 1009 subjects

The sole bill on this list (see below for all 60) with only one subject term and no commas, Senate Bill 78, encompasses “Fiduciaries and Trusts.” Might “Fiduciaries” and “Trusts” be distinct subjects?

The LRC includes “Executive/Judiciary Request” and “Technical Corrections” among the multiple subjects of these bills. I entertained the notion that those terms aren’t really the subjects of those bills, but when if I arbitrarily delete those terms from my subject count, I end up with three bills—SB 6, SB 22, and SB 63—that would have no subject. Article 21 Section 1 of the South Dakota Constitution says “No law shall embrace more than one subject,” which logically allows the possibility that a law may have zero subjects, but the dependent clause appended to “subject”, “which shall be expressed in the title,” presumes the count of subjects is non-zero, that the single subject will indeed exist and be expressible. A bill cannot have no subjects, so “Executive/Judiciary Requests” and “Technical Corrections” must be subjects.

Now I’m not making stuff up here; I’m just going by what my leaders and the law tell me. Our Legislature publishes these bills for public review online. The Legislature says 59 of those bills have more than one subject. The law (the South Dakota Constitution!) says bills cannot have more than one subject. The Governor says she has a solemn and sworn duty to faithfully execute the law and restrain violation of any constitutional or legislative power.

Yet at the same time that the Governor has gone to court to overturn one multi-subject constitutional amendment, the Governor has signed at least 59 multi-subject bills into law.

Hmmm… I wouldn’t think the Governor could sue herself to overturn laws that she herself signed. But I wouldn’t have thought the Governor could have the state sue itself to overturn multi-subject Amendment A.

But whoever does the suing, someone’s got to sue. Governor Noem has declared the single-subject rule vital to the integrity of our Constitution… and by its own accounting, the Legislature and the Governor have violated the single-subject rule at least 59 times already this Session.

Bills Signed by Governor, 2021 Legislative Session, as of February 20, 2021
Bill Title Subjects
HB 1001 correct technical errors in statutory cross-references regarding insurance. insurance, technical corrections, executive/judiciary request
HB 1002 revise certain provisions regarding fingerprint-based background checks for the Real Estate Commission and the appraiser certification program. Boards and Commissions, Criminal Background Investigation, Executive/Judiciary Request, Professions and Occupations
HB 1003 revise certain provisions regarding credit for reinsurance. Executive/Judiciary Request, Insurance
HB 1004 repeal the registration requirement for medical assistants. Boards and Commissions, Executive/Judiciary Request, Health Care, Professions and Occupations
HB 1005 repeal the emergency medical technician-student status license requirement. Executive/Judiciary Request, Health Care, Professions and Occupations
HB 1006 revise certain provisions regarding the practice of chiropractic. Boards and Commissions, Chiropractic, Executive/Judiciary Request, Health Care, Professions and Occupations
HB 1009 revise certain provisions regarding the licensing of electricians and electrical contractors. Boards and Commissions, Electrical Wiring, Executive/Judiciary Request, Fees, Professions and Occupations
HB 1012 update references to certain federal motor carrier regulations. Executive/Judiciary Request, Public Utilities and Carriers
HB 1022 repeal certain obsolete state estate and inheritance tax provisions. Executive/Judiciary Request, Taxation, Technical Corrections
HB 1023 repeal obsolete property tax provisions and to revise property tax cross-reference and land classification statutes. Executive/Judiciary Request, Property, Taxation, Technical Corrections
HB 1024 repeal obsolete provisions and revise statutory cross-references for the energy minerals severance tax, state and municipal sales taxes, contractor’s excise tax, alcohol licenses, and gaming tax. Alcoholic Beverages, Executive/Judiciary Request, Gambling, Taxation, Technical Corrections
HB 1025 delete or revise certain outdated language relating to education. Boards of School Districts, Education, Executive/Judiciary Request, School Districts, State Aid to Education, Technical Corrections
HB 1030 revise and clarify certain provisions regarding the required minimum distribution methods of the South Dakota Retirement System. Executive/Judiciary Request, Public Officers and Employees, Retirement System, State Employees
HB 1031 revise certain provisions relating to the South Dakota Retirement System. Executive/Judiciary Request, Public Officers and Employees, Retirement System, State Employees
HB 1032 revise the minimum cost of living adjustment and revise terminology of the South Dakota Retirement System. Executive/Judiciary Request, Public Officers and Employees, Retirement System, State Employees
HB 1033 update certain provisions relating to the South Dakota Retirement System, to revise certain provisions relating to reemployment after retirement with the South Dakota Retirement System, and to declare an emergency. Emergency Clause, Executive/Judiciary Request, Public Officers and Employees, Retirement System, State Employees
HB 1036 correct technical errors in certain code cross-references regarding the Department of Game, Fish and Parks. Executive/Judiciary Request, Game, Fish, Parks and Forestry, Public Waters, Technical Corrections
HB 1037 authorize the increase of certain fees by the State Electrical Commission. Boards and Commissions, Executive/Judiciary Request, Fees, Professions and Occupations
HB 1043 provide enhanced permit criteria for current and former law enforcement officers. Firearms, Law Enforcement, Sheriff
HB 1046 limit liability for certain exposures to COVID-19. COVID-19, Health Care, Liability, Public Health and Safety
HB 1048 revise provisions regarding the sales of certain older vehicles at auction. Motor Vehicles, Vehicle Dealers
HB 1060 direct certain persons to notify funeral directors of communicable diseases or conditions. COVID-19, Public Health and Safety
HB 1070 revise certain provisions regarding the Unified Judicial System. Courts and Judiciary, Executive/Judiciary Request, Technical Corrections
HB 1082 revise certain state aid to education definitions for the 2021-2022 school year. Education, State Aid to Education
HB 1083 grant authority to the secretary of education to waive accountability requirements in certain situations. COVID-19, Education, Emergency Management
SB 1 codify legislation enacted in 2020. Code Commission, Legislature and Statutes
SB 2 modify the duties of the Code Commission. Code Commission, Legislature and Statutes, Public Property, Purchases and Contracts
SB 6 correct technical errors in statutory cross-references related to the Department of Social Services. Executive/Judiciary Request, Technical Corrections
SB 7 permit a government agency to qualify as a victim for purposes of restitution in criminal cases. Courts and Judiciary, Criminal Procedure, Executive/Judiciary Request, Health Care, Public Welfare and Assistance
SB 8 revise various provisions related to banks and trusts. Banks and Banking, Executive/Judiciary Request, Fiduciaries and Trusts, Technical Corrections
SB 9 revise various provisions related to bank trust departments and trust companies. Banks and Banking, Executive/Judiciary Request, Fiduciaries and Trusts, Technical Corrections
SB 11 revise provisions regarding highways and bridges. Executive/Judiciary Request, Highways and Bridges, Technical Corrections
SB 12 update a reference to the U.S. Board on Geographic Names standards manual. Executive/Judiciary Request, Natural Resources
SB 13 revise a statutory cross reference in the written waiver of right to a parole hearing or appearance. Executive/Judiciary Request, Penal Institutions, Probation and Parole, Technical Corrections
SB 14 limit the time children in need of supervision are held in detention under certain circumstances. Courts and Judiciary, Executive/Judiciary Request, Juvenile Justice, Minors, Technical Corrections
SB 15 revise the voting requirements necessary for the board to grant or deny parole or recommend clemency. Executive/Judiciary Request, Penal Institutions, Probation and Parole
SB 16 revise the requirements of setting discretionary parole dates by the board. Executive/Judiciary Request, Penal Institutions, Probation and Parole
SB 19 correct errors in statutory cross-references in certain provisions regarding health care. Executive/Judiciary Request, Health Care, Technical Corrections
SB 20 place certain substances on the controlled substances schedule and to declare an emergency. Controlled Substances, Emergency Clause, Executive/Judiciary Request, Law Enforcement
SB 21 revise contracting procedure options for certain highway construction contracts. Executive/Judiciary Request, Highways and Bridges, Public Property, Purchases and Contracts
SB 22 correct a technical error concerning a cross-reference regarding a certain energy conservation program. Executive/Judiciary Request, Technical Corrections
SB 23 correct a technical error concerning a cross-reference relating to certain reporting requirements for the building South Dakota programs. Executive/Judiciary Request, Government Operations and Audit, Technical Corrections
SB 25 remove an incorrect cross-reference in provisions regarding elections. Elections, Executive/Judiciary Request, Technical Corrections, Voting
SB 26 modify the type of candidates that may use a joint petition. Elections, Executive/Judiciary Request, Petitions
SB 29 revise certain training and testing requirements for entry level driver applicants for a commercial driver license. Driver License, Executive/Judiciary Request
SB 30 extend the issuance period for commercial learner’s permits. Driver License, Executive/Judiciary Request
SB 32 revise certain provisions regarding access critical nursing facilities. Executive/Judiciary Request, Human Services, Nursing Homes
SB 37 update certain citations to federal regulations regarding pipeline safety inspections. Executive/Judiciary Request, Public Utilities and Carriers
SB 38 correct technical errors in and make stylistic revisions to certain provisions regarding public utilities. Executive/Judiciary Request, Public Utilities and Carriers, Technical Corrections
SB 39 repeal the registration requirements for certain amusement devices. Executive/Judiciary Request, Retail Sales and Service Tax, Tax Exemptions, Taxation
SB 40 revise certain references to the Internal Revenue Code. Executive/Judiciary Request, Taxation
SB 41 revise certain requirements for contesting certificates of assessment. Executive/Judiciary Request, Taxation
SB 42 require all documentation supporting a tax refund claim regarding the accidental mixing of undyed and dyed diesel fuel to be submitted to the Department of Revenue within a certain time period. Executive/Judiciary Request, Motor Fuel, Taxation
SB 43 modify certain provisions related to motor vehicles. Executive/Judiciary Request, License Plates, Motor Vehicles, Specialty License Plates, Taxation
SB 46 allow for the consideration of certain instruction to count towards the minimum number of hours required in a school term during a declared state of emergency. Boards of School Districts, Education, Executive/Judiciary Request
SB 63 correct technical errors and outdated provisions regarding the Department of Environment and Natural Resources. Executive/Judiciary Request, Technical Corrections
SB 67 correct a cross-reference relating to sheriff’s compensation. Counties, Sheriff, Technical Corrections
SB 69 correct certain provisions with incorrect cross references regarding county road district boundaries. Counties, Highways and Bridges, Local Government Generally, Municipal Government
SB 73 revise provisions regarding the sale of certain government owned vehicles by an auction agency. Motor Vehicles, Professions and Occupations, Public Property, Purchases and Contracts, Vehicle Dealers
SB 78 modify certain provisions related to trusts. Fiduciaries and Trusts

 

36 Comments

  1. Richard Schriever 2021-02-20

    “someone’s got to sue.” An appeal to the ruling on Amendment A must include these “examples” – and perhaps request that the court rule on the constitutionality of the “single subject rule” in regard to the 1st amendment? (abridging free speech)? ACLU – are you reading?

  2. Ryan 2021-02-20

    Wait, so are you trying to tell me that this lady is a hypocrite!? That she would lie about her motives!? That she really doesn’t care about the people of South Dakota or our constitution!? That she is just an empty shell spewing easily disproven gop talking points!?

    I wish she would take questions from the public so we could ask her to clarify all these misunderstandings…

    Excellent work as usual, Cory.

  3. Richard Schriever 2021-02-20

    “someone’s got to sue.” Hey, isn’t the unequal application of the single subject rule also a violation of the equal protection clause of the 14th amendment as well. I mean, isn’t the way it is used related to a differentiation between two “classes” (elected and unelected) of people? ACLU – are you reading more?

  4. Ryan 2021-02-20

    I emailed kelo this post asking them to present this to Noem for explanation. Guys, obviously we are missing something, there’s no way a politician would pick and choose when and how to apply laws. That would be preposterous……………

  5. Jivin Knute 2021-02-20

    I have lost what little faith I had with the one party legislature in Pierre.

  6. Ryan 2021-02-20

    Also I emailed this to the governor’s office. I don’t expect them to care about the opinions of us voters because they have proven they don’t, but it’s worth inquiring.

  7. John 2021-02-20

    Harsh morning to be the Covid queen or her judge.
    Exceptional work again, Cory.

    Someone should initiate a suit to throw out, void, all 59 laws. That should stop the Covid queen, her judge, and her lackey legislators in her tracks.

  8. Ryan 2021-02-20

    John i was thinking the exact same thing.

  9. Donald Pay 2021-02-20

    The subject of concern, as I recall, is the one addressed in the bill title. [The LRC’s “subjects” are not the item of concern. The LRC didn’t exist when the constitutional provisions was written.]

    “Single subject” is a vague term, and is thought to be essentially worthless, except people know it when they see it. Of course, people see different things at different times, so, yeah, it’s highly elastic. But it has a populist progressive root, and part of an attempt to clean up corruption that was quite rampant in legislative processes at the time. It was meant to prevent what is commonly done in Congress today, which is to pile all sorts of bills on all sorts of subjects into one bill so that unpopular bills can pass based on the popularity of one or two other bills that have to pass. There have been attempts by the SD Legislature to do away with the single subject rule, but they have all fallen away by a vote of the people, probably in votes on Constitutional
    amendments that violated the single subject rule. Other related terms are “logrolling.”

    I have seen a bill challenged on the single subject rule (can’t remember the year of bill), the President of Senate ruled to divide the question, and the question divided by the Legislature. Then I recall two separate votes on the divided question. After the votes the bill still passed on as one bill. That may still have violated the single subject rule, but no one challenged it.

    It think the ruling on Amendment A is bull crap. I hope someone challenges it.

  10. Cory Allen Heidelberger Post author | 2021-02-20

    Ah, but Donald, the LRC is the professional agency charged with helping the part-time legislators do their job. The LRC is filled with experts who do’t use words lightly. If they refer explicitly to “subjects” of a bill, they must mean those are the “subjects” of the bill. And if the reasonable LRC experts can conclude that a given bill includes multiple subjects, why cannot any reasonable judge?

  11. Ryan 2021-02-20

    Also just reached out to Argus suggesting they follow up with this.

    Also emailed Brendan Johnson the link to this and offered my assistance if I can be of help in any way, although I’m sure his team and resources are robust. Never hurts to try to be involved, even if the impact is minimal.

  12. Donald Pay 2021-02-20

    I think the LRC gives a broader interpretation in providing bibliographic subject data that is not necessarily the same as what befits a single subject described by the bill title. But that’s why the whole “single subject” rule is confusing and contradictory. It’s certainly not applied under any sort of fair or consistent rule of law, as the ruling on Amendment A proves. It’s more like the “golden rule” than the “single subject rule,” and by “golden rule” I mean he who has the gold (or power) rules. Maybe the best course is to appeal that ruling, and get a clearer answer.

  13. mike from iowa 2021-02-20

    Wingnuts ignore the rules of law they passed? I don’t believe it for a minute.

  14. grudznick 2021-02-20

    You’re just being silly now, Mr. H. That’s like saying a pickup that just went by was “Ford, Blue, Crew Cab, AND Owned-by-an-old-lady-down-the-street.”

    I love it when you’re silly.

  15. Donald Pay 2021-02-20

    The other thing your can do, Cory, is to take all those bills, if they pass and are signed by the Governor, to court, and monkeywrench the whole Legislative process for this year. Probably would serve Covid Kristi right for screwing with Amendment A, and it might get a clearer definition of what “single subject” really means.

  16. grudznick 2021-02-20

    No court would follow the Council of Legislatures “subjects” as a constitutional ruler. The Council of Legislatures continues to become more inept each year, and this year is among the least ept in the last few decades. Ask any in the legislatures or in the lobbies. It is known.

  17. Donald Pay 2021-02-20

    Asking the most inept Legislature to speak about the ineptness of anyone else is funny.

  18. grudznick 2021-02-20

    Perhaps, Mr. Pay, it is the ineptness of the Council of the Researchers that is driving what you perceive to be ineptness in the legislatures. Perhaps, without the strong steady hand of the Conservatives with Common Sense in the caucus on the green side of the legislatures things would really be off the rails, with people like Mr. Nesiba and his minion Ms. Howard steering the boats. You are in Wisconsin, and far removed from the inside scoops on the workings. Like our good friend Bill would say, before he took all the big government contracts…I’m just sayin…

  19. jake 2021-02-20

    You’re blowin’ smoke, Grudz, like a ‘Coal-burner Dodge diesel’ truck. Cory is “spot-on” and you are again trying to sidetrack the thread and content of this posting. Those years of ‘legislature life’ appear to be still influencing your brain activity.

  20. grudznick 2021-02-20

    No, Mr. jake, I am spot on here and has already won the debate based on Mr. H using the Council of Legislative Researchers as his “standard” upon which to measure one-subjectness.

    grudznick has ruled. The debates are over on this single topic.

  21. Cory Allen Heidelberger Post author | 2021-02-20

    Donald, I think we might serve the public interest if we took the entire approved Legislative agenda to court and sought rejection under the single-subject rule… or used the 2021 Legislative agenda in a lawsuit against the single-subject rule as an arbitrary and thus unconstitutional burden on core political speech.

  22. Ryan 2021-02-20

    Anybody have an email address list of all sd legislators by chance? Too tedious to look them all up but I will if I have to.

  23. Donald Pay 2021-02-20

    Cory, I actually like the single subject rule, but it needs some fleshing out. I just think that judge effed up badly. Amendment A is all one subject. The Legislature would be in a heap of trouble if they had to follow that ruling, and I think it would be just dandy if the Legislature and the Governor had to eat the same sh*t that judge was serving.

  24. Cory Allen Heidelberger Post author | 2021-02-21

    Donald, that judge’s effing-up, along with the Legislature’s own disregard for its own rule, provides the grounds for a challenge to the single-subject rule as written and applied in South Dakota. I don’t mind clearly defined laws with predictable application, but South Dakota’s single-subject rule does not rise to that threshold. Let’s throw it out!

    And I do wonder: would our lawmaking really suffer if we did away with the single-subject rule and did not replace it with any better defined restriction? Congress doesn’t have a single-subject rule. If members of Congress don’t like a provision, they can work to amend that provision out of the bill. If we voters see initiative that does too much, we can (and likely will) vote it down. Let the system govern itself by the votes of legislators and the people rather than imposing one more technicality that serves only to give anti-initiative pols and their well-paid lawyers legal footholds with which to thwart the expression of the popular will.

    And in the meantime, while South Dakota’s single-subject rule is in effect, let’s repeal the entirety of the 2021 Legislature’s output.

  25. Cory Allen Heidelberger Post author | 2021-02-21

    Grudz, there is nothing silly about this argument. We are charged with composing laws that consist of a single subject. Conscientious lawmakers—regular citizens and elected legislators alike—may rightly ask, “What is a subject?” The law is mute on that question. The state’s only explicit declaration of the subject of any bill is on its own Legislative website, where citizens may see the “subjects” of every bill listed… and they see multiple subjects. Are you telling us that the state may say, “Oh, we said those are subjects, but those aren’t really subjects”?

    Who sounds silly now, Grudz?

  26. jake 2021-02-21

    No, Grudz, you are definitely obfuscating. Our state legislators have depended upon ALEC to provide the researched bills that they (ALEC) want passed and too rarely really draft, with the help of the LRC legal minds paid by our tax dollars. Hence, these Out of State master-minds pull the strings of our legislature. You so unkindly denounce all out-of-state influences as being so baa-a-a-d but become defensive of ALEC,s influence, why?
    Maybe, the raises of many $$$ that another of Cory’s postings announced recently-
    (which major media of course won’t tell us about until after they are passed in law)-
    should go toward the LRC to improve it?
    Any legal beagles out there who might consider a class-action lawsuit by the ‘people of S.D. against the state? After all, the state recently sued US over OUR vote on marijuana!

  27. Donald Pay 2021-02-21

    The single subject rule is a barrier to corruption. The single subject rule means every bill stands on its own.

    There’s a rule in the Legislature that every bill gets a hearing. Every bill. Bills on single subjects are easy for the average person to understand. People come to Pierre to testify on single subject bills. You think people are going to bother to participate effectively on monstrosity bills? As in DC, what you get out of combining subjects are huge bills that are a lobbyists’ wet dreams.

    It’s not just multiple subjects in one bill. It affects the whole legislative procedure. Don’t like hoghouse chicanery? Without the single subject rule, you’ve opened the door wide open.

    Put everything and the kitchen sink in one bill and the Legislature is not going to let anyone refer that bill. They emergency clause it. Now they’ve put a huge roadblock on the referendum.

  28. Bob Newland 2021-02-21

    To accuse Grudz of “obfuscating” is to accuse a prairie dog of living in a hole.

  29. jake 2021-02-21

    “Amen”, Bob N!

  30. grudznick 2021-02-21

    Mr. H, grudznick notes that every one of your “subjects”, as “subjects” are defined by the LRC not the courts, says “Executive/Judicial Request.” That, by itsownself, moots your entire argument. Many on your list have one other “subject” plus those words. “Executive/Judiciary Request, Public Utilities and Carriers” for example. Since every one of them says “Executive/Judiciary Request” they might as all also say “Law Bill” and “Words” and “English” since they are all law bills written with words in English.

    I know it is enraging, but grudznick wins yet another debate. If you disagree and really believe yourself then you should go to Pierre and thump on the table on every bill and shout at the legislatures and make them fix it. Or perhaps, the LRC isn’t really the arbiter of “subjectively assigned subjects” after all.

  31. SD is 20 per cent nonwhite 2021-02-21

    One party multi subject bills. Take away their Legislature!

    Wonder if courts would overturn ALL multi subject “laws” or law-letters?

    We have computers and cell phones. Why do legislative elections have to happen
    Every 2 years? Why not every 6 months or 2 months? Are we old fashioned to be always old fashioned?

    Seriously, Rapid City, Sioux Falls and McCook County need to be Blue Forever!

  32. SD is 20 per cent nonwhite 2021-02-21

    Right, void the laws in court.

    I wonder if Democratic Party leaders ever talk to people. If they don’t have a PLAN now to have power from 2022 to 2072, why not?

    Is it the sub-Democratic Party? We lose elections with style?

    Does anyone Dem leadership actually have a PLAN, an exciting one?

  33. Cory Allen Heidelberger Post author | 2021-02-21

    Grudz, you have not won. You’re helping me win by making my point. One entity can deem something to be a “subject.” You can enter your own arbitrary rejection of that deeming and claim subjects are really something else.

    “Executive/Judiciary Request” appears frequently, but not in every bill I list. That subject is overrepresented in this list because those bills may be filed and run through the process earlier. It appears, nonetheless, to be a subject.

    But that’s the question: what is a subject? How are the courts ultimately to define a subject? How are the people to know what a subject is so that when they compose an initiative (or encourage their legislators to compose a bill) they know they are composing statutory text that will withstand judicial scrutiny? Are we to say, “Well, if Grudz says it’s a subject, then it’s a subject”?

    Your argument just shows we cannot find a reliable arbiter of this arbitrary term. You say the LRC, the entity that helps write laws and rectify the picayuniest of style and form issues, cannot be trusted to define “subjects”. That tells me the single-subject rule is a word game invoked to stifle laws the powers that be want stifled, not a fair and reasonable restriction on the legislative process.

  34. Cory Allen Heidelberger Post author | 2021-02-21

    Donald, I dig the process. I dig every bill getting a hearing. I dig avoiding the consolidation of logrolling into rushed omnibus bills.

    But those advantages of the single-subject rule come from preventing hasty, unscrutinized evaluations of proposals. The single-subject rule as applied to Amendment A produced no such advantage. It simply offered technical ground for a strained interpretation that killed a proposal that had faced public scrutiny for a year and a half.

    I am thus prepared to apply this same judicial precedent to every bill the Legislature passes until the courts recognize that the single-subject rule as written in South Dakota is arbitrary and unduly burdensome.

  35. Cory Allen Heidelberger Post author | 2021-02-21

    SD20%, my plan is to run someone for Governor who makes three promises:

    1. Never sue the voters on the voters’ dime.

    2. Veto every bill seeking to over a voter-approved initiative.

    3. Veto every bill seeking to weaken the initiative and referendum process.

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