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.