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.