Last month Governor Kristi Noem sent the South Dakota Supreme Court a laundry list of questions she wants them to answer about South Dakota Constitution Article 3 Section 12, which prohibits legislators from having direct or indirect interests in state or county contracts. Attorney General Marty Jackley, Senate boss Lee Schoenbeck, and Speaker Hugh Bartels backed up her request. Bob Mercer reports that Chief Justice Steven Jensen has responded to Noem’s request by telling her that she and her backer-uppers need to clarify their request by December 15:
Chief Justice Jensen wants the briefs to address how each of the nine questions raised in the governor’s October 20 letter “presents an important question of law involved in the Governor’s executive power or a ‘solemn occasion’ that invokes this Court’s original jurisdiction under Article V, section 5 of the South Dakota Constitution.”
A sentence in that section says, “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 current order from the Supreme Court says that the governor, attorney general and Legislature in their briefs shall also address the merits of each of the nine questions raised by the governor in her current request [Bob Mercer, “SD Supreme Court Will Look at Governor’s Request,” KELO-TV, 2023.11.04].
Noem said in her October 20 letter that we need answers to her questions about conflicts of interest “to prevent former, current, and prospective legislators and candidates from unwittingly violating this broad constitutional prohibition” and so she can make sure the state agencies under her oversight authorize and execute contracts without running afoul of conflicts. But if she reframes her request to elaborate on the specific reasons for the court to address each of the nine conflict scenarios she poses, we run the risk that the court may not offer a solid general interpretation that can guide the Governor and legislators in all situations. As Senator Schoenbeck said in his October 25 letter to the court, “It would be impossible to list all the scenarios of South Dakota citizen’s [sic] interface with their state and county government.”
But such is the nature of court minimalism and judicial restraint. Chief Justice Jensen doesn’t want to go looking for scenarios: he wants specifics from the Governor to define exactly the boundaries of the questions his court will address and beyond which they will not step.
I would posit the WORKING courts of law are not meant to be panels of philosophers. They are to consider and decide on the basis of specific factual evidence of a case and how an existent law applies to the specifics (facts) of that case. They do not decide matters at the application of law in “theoretical” scenarios. Such theorizing is for rhetoricists like politicians and propagandists to engage in; OR, at best, students and/or professors in schools of law.
I imagine that Noem wants these theoretical opinions to be made by the Supreme Court to serve as some sort of legal precedence that bears an actual weight of law to side-step the lengthy processes of litigating actual cases. It is the move of an authoritarian. See – the courts have already decided. I told them to. See how powerful I am.
I think Noem is asking a good question here, even if she needs to be more specific. I don’t know her motives, but maybe there is truly confusion that needs to be clarified.
Good. Noem’s inquiry falls from the standard. Advisory opinions are trope unmoored from factual controversies.
If you are going to follow the South Dakota Constitution in the spirit that the framers of that constitution intended, you better get ready to dump about half or more of the Legislature. Article 3 Section 12 was an anti-corruption measure written in an era much different than today. State government has taken on a much larger role than it had back then, and thus would, if read strictly, exclude a lot more people from the legislature than it did back in the 1890s. As state government expanded, the Legislature has not really understood the implications of Article 3, Section 12. If read in a strict constructionist sense, this section of the state constitution is outdated to the point of being crippling to the Legislature. unless it is ignored, as has happened historically, or interpreted by an extremely liberal Supreme Court willing to bend the plain meaning of the Section. When you have a part-time legislature and a modern society, you have to have a different way to deal matters like self-dealing and corruption. Unfortunately, the Legislature axed most of the initiative that started to deal with Legislative corruption back a few years ago, so the corruption continues. People are tired of a Legislature so corrupted by its failure to hold itself up to Constitutional standards. It’s time to have a real discussion, much broader than just a Supreme Court opinion, about corruption and how to structure the SD Constitution in a way that modernizes it, but also squeezes out the corruption from the Legislature.
Good. Put the monkey on her back.
So who in the Noem administration is going to address these specifics? It sure won’t be Noem herself, of course.
Some years ago school boards were required to have on the top of the agenda an item where members openly stated if a conflict of interest existed regarding an agenda item.
SuperSweet is correct. I remember having a potential conflict related to my employer at the time potentially being provided some district funds for services they were potentially going to provide to students. I stated the conflict and walked out of the meeting until that part of the agenda was concluded.
It seems to me that the appropriations process is going to have to be reconfigured in a way that it would be easier for legislators to determine if they have a conflict.
I think the Governor is grandstanding here. She seems to be saying that prior to appointing Ms. Castleberry, she did not know of Ms. Castleberry’s business with the State?? Really?? That would seem to be the first question she would ask. Her crack staff of Florida refugees was sleeping at the switch as usual. As far as the prohibitive, anti-corrruption clauses in the Constitution goes, Mrs Noem had over 10 years experience as a state legislator and Governor. One would think she would have had the opportunity to read the State Constitution during those ten years. Her blissful ignorance is nor convincing.
Sounds like maybe Noem is sounding out her litmus tests for judicial appointees for the future.
I think the Governor is grandstanding here. She seems to be saying that prior to appointing Ms. Castleberry, she did not know of Ms. Castleberry’s business with the State?? Really?? That would seem to be the first question she would ask. Her crack staff of Florida refugees was sleeping at the switch as usual. As far as the prohibitive, anti-corrruption clauses in the Constitution goes, Mrs Noem had over 10 years experience as a state legislator and Governor. One would think she would have had the opportunity to read the State Constitution during those ten years. Her blissful ignorance is not convincing.
The only legitimate way to “test” the constitution’s intent is to start firing/disqualifying people with conflicts and let them sue to keep their positions. Otherwise, it just remains so much speculation with no actual weight of law.
Richard is correct, except that the the people who serve in the Legislature have to start living by the Constitution (at least Article 3, Section 12), and that’s one thing they have proved over nearly a century that they can’t or won’t do so. It’s understandable. Article 3, Section 12 was a powerful anti-corruption measure that made some sense the way it was written back in the time that it was made a part of the Constitution. With all the changes in state government since, and the fact that there continues to be an amateur, part-time Legislature, you are simple going to have a lot more conflicts with that section. What’s needed now is an amendment to that section that deals with the entire panoply of corruption.
Think how powerful this will make the Executive, and the lobbists! The lobbists are drooling.
If I were a lobbyist whose governor could suck the chrome off a trailer hitch I’d be drooling, too.
Governor Grisham seems to meet your qualifications, Lar. You should renew your lobbist ticket. Like Bill, the old friend of this blogging place before he sold out to The Man used to say…”I’m just sayin…”
Cowards that their adherents are that the SDGOP establishment is afraid of Cory’s blog is intriguing, for sure.