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Noem Seeks Supreme Court Opinion on Legislator Conflicts of Interest

It’s been eleven weeks since Jessica Castleberry resigned from the South Dakota Senate in disgrace orchestrated by Governor Kristi Noem. The 2024 Session is coming up, and the good people of District 35 in eastern Rapid City and Box Elder need their voice in the Senate! Where’s the Governor’s appointee for the seat she emptied? What’s the Governor waiting for?

She’s waiting for an opinion from the South Dakota Supreme Court on the plain language of the South Dakota Constitution. On October 20, over two months after she had to start looking for someone to replace the conflictually interested Castleberry, the Governor asked the Supreme Court to clarify Article 3 Section 12, which tries to keep legislators from profiting from their service:

No member of the Legislature shall… during the term for which he shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed during the term for which he shall have been elected [SD Const. Art. 3 Sec 12].

Republicans have applied this provision very selectively—actually, just once, against Castleberry, and not against the numerous other legislators who are pretty clearly castling their berries with state and county contracts.

Governor Noem says that while “direct” interest is clear, “indirect” interest needs clarification. To achieve that clarification, the Governor submits nine questions for the Supreme Court to answer:

  1. May a vendor of the state receive a state payment if that vendor employs a legislator, and such legislator is not an owner of the vendor?
  2. May a vendor of the state receive a state payment if that vendor is a publicly traded company, and a legislator owns any shares or stock in such vendor?
  3. May a legislator be a state, county, city, or school district employee, either full time, part time, or seasonal, or an elected or appointed official?
  4. May a legislator receive retirement compensation from the South Dakota Retirement System for service rendered other than acting as a legislator?
  5. May a legislator or a business owned by a legislator subcontract for payment, goods, or services provided to or from the state?
  6. May a legislator or a business owned by a legislator receive Medicaid reimbursements administered by a state agency?
  7. May a legislator receive an expense reimbursement for foster children in their care administered by a state agency?
  8. May a legislator or a business owned by a legislator purchase or receive goods or services, including state park passes, lodging, and licenses, from the state when such goods or services are offered to the general public on the same terms?
  9. How do the instances detailed above apply to a legislator’s spouse, dependent, or family member? [Governor Kristi Noem, Request for an Advisory Opinion, submitted to South Dakota Supreme Court 2023.10.20; posted in Bob Mercer, “Supreme Court Is Asked About Legislative Conflicts,” KELO-TV, 2023.11.01]

My short, undeliberate answers:

  1. No.
  2. No.
  3. No for state and county; Art 3 Sec 12 doesn’t mention cities or school districts.
  4. Maybe not (I’d like to find an exception here: are retirement benefits different from active contracts for services?).
  5. No.
  6. Maybe not (again, hoping for an exception, because people who qualify for Medicaid ought to get that assistance, even if they somehow manage to win seats in the Legislature).
  7. Maybe not (but another exception I’d look for: can we split the line between legislators doing real good by fostering children and somehow exploiting their lawmaking power to unfairly profit from social services?).
  8. Yes (no unique benefit, legislators treated same as public, just as when they drive on public highways, so no corruption for the Constitution to check).
  9. Same as for the legislators, within the degrees of kinship law and Court precedent find relevant.

Bob Mercer reports that Attorney General Marty Jackley, Senate President Pro-Tempore Lee Schoenbeck, and House Speaker Hugh Bartels have written to the Supreme Court to support the Governor’s request. If the Court is unable to compose answers to Noem’s nine questions by January 9 (nine weeks away—that’s one question per week!), the 2024 Session may open without a voice for District 35 in the Senate. But if the Supreme Court does respond with due alacrity, and if the Supreme Court answers any of the above questions “No” (and I suspect there will be more than one No derived from the clear language of Article 3 Section 12), we could see some significant departures from the Legislature… and a 2024 Legislature stacked with even more Noem appointees.


  1. Nix 2023-11-02 08:41

    I hope that they make sure to check our Hall
    of Famer, Drunk Driver, Union Center community leader, CRIMINAL

    Gary Cammack.
    World Class P. O. S.

  2. John 2023-11-02 09:33

    SD State Senator Randy Diebert, apparently, belated read the constitution and resigned from his county commissioner position last week. While belatedly doing the right thing, his political statement in a letter to the commission chair ignored his constitutional affront conflict of interest.

    SD governance would be enhanced if the state supreme court refused its practice of advisory opinions. Let folks take controversies to court to result in a purer, clearer determination.

  3. Monty 2023-11-02 13:48

    One unique benefit for attorneys serving in the legislature is the delicate bribery inherent in controlling judicial salaries.

  4. grudznick 2023-11-03 00:07

    Once the saner fellows are all driven from the legislatures, it will be the wingnuts and lobbists who prevail. They will call it “The era of Ms. Taffy and those fellows puppeted by grudznick.” That is what they will call the era.


  5. Donald Pay 2023-11-03 09:33

    Article 3 Section 12 seems to be a bit dated. This section was part of the statehood Constitution, which was very concerned about corruption, and so was very tough on legislators. There have been several attempts to repeal or amend it since the 1970s. Each time those amendments have been defeated. Section 12 is a good anti-corruption measure, but it does need some updates and clarifications. I’d be for less prohibition and more disclosure and recusal from participating in matters in which the legislator has monetary interest, but I don’t trust the legislators to adhere to that any more than they have adhered to the plain meaning of the current section.

    The 1970s amendments, I believe, were part of a grand re-write of the entire Legislative Article. Those amendments went down. I voted against them. You have to keep those legislators on a tight leash, even though it really is not enforced.

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