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Noem Response to Ethics Complaint: Declare Ethics Panel Unconstitutional!

The formal complaint against Governor Kristi Noem’s nepotistic intervention in her daughter Kassidy Peters’s struggle to become a real estate appraiser gave Noem the opportunity to funnel more money to her favorite law firm, Redstone of Sioux Falls, headed by legislator-turned-lobbyist Matt McCaulley. In this case, McCaulley and his colleagues came up with a doozy of an argument: in a motion in April (Lisa Prostrollo, Matt McCaulley, and Christopher Sommers all signed), the Governor signaled that she’s ready to challenge the validity of the Government Accountability Board itself in court.

Noem’s lawyers argue that the law authorizing the GAB to investigate and punish statewide officeholders is unconstitutional:

This Board, as a creature of statute, must necessarily exist within the confines and limitations of the structure set forth by our Constitution. Under our State’s system of executive power, the Governor’s official actions may only be reviewed (1) by the Legislature pursuant to its constitutional power of impeachment and removal from office… or (2) by the judiciary when the Governor exceeds her constitutional authority…. Because the Complaint seeks to have this Board issue and adjudicate a formal charge of official misconduct against our State’s chief executive, and because there is no constitutional provision that would authorize this Board to adjudicate the propriety of the Governor’s conduct, let alone to reprimand or direct her to engage in coursework or community service, the Attorney General’s Complaint seeks action by this Board that would violate the Constitution, and it should therefore be dismissed [Lisa Prostrollo, Matt McCaulley, and Christopher Sommers, attorneys for Governor Kristi Noem, Motion to Dismiss and Response to Complaint 2021-03, 2022.04.15, pp. 10–11].

Perhaps this argument is what Noem’s campaign flack Ian Fury had in mind when he declared the GAB’s actions illegal.

But in making this argument, Noem’s lawyers forget that, even though they are talking to retired judges, they aren’t talking to judges; they are talking to the Government Accountability Board. The GAB operates as part of the executive branch, not the judiciary. Only the judiciary can rule on the constitutionality of statute. Judges Gienapp, Kean, and Wilbur might like to dig into the constitutionality of their own authority, but on this panel, they cannot hear constitutional challenges to statute. Per SDCL 3-24-3, they can only review and investigate allegations of misconduct against statewide officeholders and employees of the executive branch.

Noem’s lawyers further argue that the GAB is a sort of ouroburos, a serpent eating its own head. As a part of the executive branch, the GAB is charged with investigating and punishing naughty members of the executive branch. But such power “would place the Governor at the mercy of a subordinate executive agency,” and “subjecting the Governor to scrutiny by a subordinate agency would turn our State’s government hierarchy on its head.”

Noem’s lawyers aver that they are not seeking to insulate the Governor from any question of misconduct. The Legislature may impeach the Governor, and the judiciary may rule that the Governor has exceeded her constitutional authority, but the GAB can’t touch her.

Maybe Noem’s lawyers made these arguments to the GAB just to wave them off, but to make these arguments stick, they need the GAB to take some action against the Governor that they can then take to court. But if they follow that path, they won’t just be seeking to overturn a GAB ruling against the Governor; they’ll be seeking to shut down the GAB, or at least its ability to field complaints about unethical behavior by any statewide elected official.

Wow: it wasn’t enough that the Governor’s party threw out Initiated Measure 22, the Anti-Corruption Act that voters approved in 2016 to create, among other things, a statewide ethics commission; now the Governor is laying the groundwork for a court challenge to throw out the Government Accountability Board that the Legislature created as a consolation prize.


  1. larry kurtz 2022-09-12 08:13

    Until his retirement Chief Justice David Gilbertson was the highest ranking Democrat in South Dakota. Now doubt he has witnessed SDGOP wrongdoing and its mass incarceration scheme for decades.

  2. larry kurtz 2022-09-12 08:15

    No doubt, rather. That vampire Noem is frightened by sunlight is a tell.

  3. P. Aitch 2022-09-12 08:53

    Your Governor is akin to a heckler with a law firm that you’re paying for. Saying its fascism is an overused response so I’ll say it’s just backstroking.

  4. O 2022-09-12 09:53

    To follow this argument to its logical conclusion, the complaint should be immediately brought to the legislature for impeachment procedures. Additionally, charges should be filed for any statute presumed violated.

  5. John 2022-09-12 09:56

    How does South Dakota (and the world) get there.
    Appeasement, by Tim Bouverie:
    and Tea with Hitler, by Dean Palmer:

    It’s generally the hard right and monied class (seeking an oligarchy) that champion appeasement and debasing democracy and its institutions.
    Of course, there are a few notable far left pacifists whom also champion being surrender monkeys – such folks who lack moral courage to fight for their “beliefs”.

  6. bearcreekbat 2022-09-12 10:24

    It appears Noem’s attorneys are contending the GAB lacks jurisdiction to decide whether a governnor such as Noem engaged in misconduct. If the GAB actually lacks jurisdiction, which seems doubtful, it would seem that instead of this motion to dismiss asking the GAB to exercise jurisdiction by deciding the scope of its power the proper remedy is for Noem to file a motion in circuit court for a writ of prohibition seeking an order prohibiting GAB from doing anything in the case because it lacks jurisdiction.

  7. bearcreekbat 2022-09-12 10:33

    FYI, the relevant statute upon which I base the last comment is at SDCL 21-30-1. Counterpart of mandamus–Purposes:

    The writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings, administrative or judicial, of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, or are without or in excess of the powers of authority conferred by law upon such tribunal, corporation, board, or person.

  8. Bonnie B Fairbank 2022-09-12 11:18

    Kristi’s just madder than a bag of cut snakes, which isn’t to say she won’t get away with it. The Queen’ll be screeching for the Board’s collective heads next; I’ve got my folding chair and bag of microwave popcorn ready.

    In reality, this will drag on for so long that no one will remember what her theft was.

  9. Bonnie B Fairbank 2022-09-12 11:23

    Oops. I mixed up the nepotism case with the ‘plane caper. It’s hard to keep all this corruption sorted. Off with their heads, anyway.

  10. All Mammal 2022-09-12 12:25

    It is starting to get embarrassing how much the Young Turks (TYT)have to point out what a POS state SD is.
    As Mz BB Fairbanks would like to witness as well, get to lopping. We have a mile’s worth of those angry snakes to deadhead by lunch.

  11. Arlo Blundt 2022-09-12 13:53

    Mrs. Noem seems to have never understood that the Appraisal process is driven by BANKS and other reputable home finance institutions. (underline, reputable). Her Position that it takes too long to get an appraisal done is a long term Realtors whine. Actually, the time spent preparing a well documented appraisal allows for the bank to complete its’ research into the credit worthiness of the borrower and for the borrower to have a “cooling off” period. The Governor would damage the integrity of the process to advance her daughter’s stalled career. Even for Noem, it is remarkably irresponsible.

  12. Richard Schriever 2022-09-12 15:43

    John, the other, and largest faction of those unwilling to fight for their rights, are the “both sides are to equally bad/to blame” fence-sitters. The imaginary “independents” who are entirely dependent on their being at least 2 other positions to theirs to support their claims of independence.

  13. leslie 2022-09-12 16:59

    It occurs that lawyers (good ones, ethical ones) must zealously represent their client. If Our Governor has her own “free” access to them, they will, as they always have, come up with every novel theory possible to protect their client’s interests, whether anyone likes it or not. That is the spot we are in too, in the nation, with what’s-his-name that we tried to impeach twice but the conservative Senate wouldn’t have it, politically, damn the facts AND the law! Thune, Rounds, you did this!

    Trump paid his lawyers w/taxpayer and campaign money. We probably do owe a debt of gratitude, however to Trump as the new “father” influencing our Governor, both with their corrupt behavior, since it is flushing out all the cooks and crooks in the red states who have been armoring up, prepping for their ongoing civil war, w/ military weapons, militia, disinformation, racism and sexism, that the tax evaders, the billionaires and corporate fossil fuel burners giddily embrace. However few or many deplorables there may be.

    The Trump flag wavers, including deluded US Navy Seals, can now fly the Ouroboros (thanks for the vocabulary, Cory!)

  14. Donald Pay 2022-09-12 21:03

    Pfff! That lawsuit is a fart in the wind. About the most obvious dodge in Pierre is to declare something you don’t like or don’t want to discuss, “unconstitutional.” But, she’s asking for impeachment, and I think the Legislature should put that on the table.

  15. All Mammal 2022-09-12 21:59

    Mr. Pay- I think our governor has failed so badly at doing right by us. She should be charged with larceny, if not grand theft. If you or I were gainfully employed by the state and decided to use the company vehicle to go to the Prairie Wind casino on the rez with our friends, then, broke and depressed, we went to the office and took as many batteries we could pilfer for our flashlights and rc cars and helped ourselves to restocking our TP supplies for our powder rooms at home and then we made off with some printer ink and mouse pads, while on the clock- we would be arrested and our coworkers would be angry. Our sorry mugs would be on the news and we would be the bane of state government. Taxpayers would hate our very being.

    But our governor gets to steal 100x that much in front of our faces everyday without the law blinking an eye. It is criminal and I agree with you, impeachment at the minimum. I’m sure we would get canned after our make believe Kristi-spree, without pre-termination investigation or counseling. Just goes to show the law is a farce if it doesn’t apply with fidelity. We can’t even seem to be able to stop her looting. Why is major rich people looting the norm while poor people get booked into county for petty offenses? The whole system is in on it and its just an industry to give people a job to go to to feel important. The only proof needed is when its kids, the elderly or tax payers as the victims, they don’t bother. When moneyed people with moneyed people’s phone numbers are done wrong to- there will be a thorough investigation and a reckoning. Maybe we can get people to the polls and convince the state to count their votes to take steps in the right and fair direction.

  16. DaveFN 2022-09-12 22:29

    Where is it written in our constitution or in SDCL that the taxpayers will incur the legal cost of a SD governor’s countercharges?

  17. leslie 2022-09-13 00:31

    somebody saud “perks of the job” like an airplane (for private use to bring bros to dah wedding, i guess)

  18. Bonnie B Fairbank 2022-09-13 08:24

    All Mammal – Sorta like “Build a Better Life By Stealing Office Supplies” by Kween Kristi, no?

  19. Janet Olson 2022-09-13 08:55

    Thanks Cory for this information: “The Governor’s party threw out Initiated Measure 22, the Anti-Corruption Act that voters approved in 2016 to create, among other things, a statewide ethics commission”.
    Once again SD voters choices are not supported by our corrupt legislators. Nope, unethical behavior is just dandy in SD.

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