• Tag Archives Clara Hart
  • Big Pharma Challenges A.G.’s Explanation to Foil Drug Price Cap Petition

    In 2015, payday lenders tried to delay circulation of the payday loan rate cap petition by challenging the Attorney General’s official explanation of the measure. Now the pharmaceutical industry is waging the same dilatory tactic against South Dakotans for Lower Drug Prices‘ initiative petition to cap prescription drug prices in South Dakota.

    The documents filed August 31 in Joni Johnson, South Dakota Biotechnology Association, and Pharmaceutical Research and Manufacturers of America vs. Marty. J. Jackley, Case #32CIV12-000189, Scott LaGanga, senior vice president of state advocacy for the Pharmaceutical Research and Manufacturers of America, contends that Attorney General Jackley’s official explanation of the drug price cap ballot measure is illegally insufficient:

    PhRMA believes the Attorney General’s Statement regarding the Measure does not satisfy the requirements of SDCL § 12-13-25.1 in that it fails to educate the voters of the purpose, effect, and legal consequences of the initiated measure. Specifically, the Attorney General explanation fails to summarize or even mention the purpose, effect, and legal consequence of Section Five and fails to summarize the effect and legal consequences of Sections One through Four of the initiated measure [link added; Scott LaGanga, affidavit, Johnson/SDBA/PhRMA v. Jackley, 2017.08.31].

    Joni Johnson, executive director of the South Dakota Biotechnology Association, lodges the same complaint in her August 31 affidavit.

    Attorney General Jackley issued the following explanation of the drug price cap on August 22:

    This measure limits the amount that a State agency may pay for a prescription drug. Under the measure, a State agency may not directly or indirectly pay more for a prescription drug than the U.S. Department of Veterans Affairs pays for the same drug.

    The measure requires the State Bureau of Administration to enact rules establishing prescription drug prices payable by State agencies [Attorney General Marty Jackley, ballot measure explanation, 2017.08.22].

    The statute cited by LaGanga and Johnson requires the Attorney General to achieve the following with his ballot measure explanation:

    The explanation shall be an objective, clear, and simple summary to educate the voters of the purpose and effect of the proposed initiative or initiated amendment to the Constitution. The attorney general shall include a description of the legal consequences of the proposed initiative or initiated amendment to the Constitution, including the likely exposure of the state to liability if the proposed initiative or initiated amendment to the Constitution is adopted. The explanation may not exceed two hundred words in length [excerpt, SDCL 12-13-25.1].

    We should note first that SDCL 12-13-9.2 gives parties dissatisfied with the Attorney General’s explanation seven days after the delivery of that explanation to the Secretary of State to file their challenge in circuit court. The Secretary of State’s office stamped the A.G.’s explanation Received on August 22. Former legislator, now plaintiffs’ attorney Jon Hansen filed his clients’ writ of certiorari on August 31, two days too late. (Hansen may have confused his old misogynist “women can’t think on weekends” bill with petition law: when “days” means “business days,” petition law says so, as it does in SDCL 12-1-13, which gives individuals challenging nominating petitions “five business days” to file their affidavits.)

    Hansen may also have mixed up his legal terms and filed the wrong kind of application. In a response filed Wednesday with the Sixth Circuit, Assistant Attorney General Steven R. Blair notes that SDCL 21-31-1 allows the court to issue a writ of certiorari “when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction.” Blair then contends that the Attorney General “did not act ‘without or in excess of’ his jurisdiction. Respondent Jackley’s inherent discretion in preparing the Explanation for the Measure was clearly within his jurisdictional authority provided under SDCL 12-13-25.1.”

    Translation: Writ of certiorari is for whacking officials who do too much, not too little. Clever, Marty!

    Those two technicalities may moot all the other legal arguments Hansen and his Redstone Law colleagues and lobby fixtures Eric Matt and Matt McCaulley make on paper and launch in court before Judge Mark Barnett on Tuesday. If not, Team PhRMA’s best argument may be A.G. Jackley’s omission of Section 5 from his explanation. To avoid being excluded from any post-election litigation (as Judge Barnett excluded the sponsors of Initiated Measure 22 from intervening in Republican legislators’ lawsuit to overturn that successful initiative), the drug price cap drafters included this legal protection for themselves:

    Section 5. If any provision of this Act is challenged in court, the committee of individuals responsible for circulating the petition to qualify this Act for the ballot are deemed to have a direct and personal stake in defending this Act from constitutional or other challenges. If the Act is challenged, committee members shall be deemed to have legal standing to assert the member’s direct and personal stake by defending the Act’s validity [drug price cap initiative, as received by Secretary of State 2017.08.22].

    The plaintiffs expound mightily on the Attorney General’s omission of this minor legal point from his explanation. Hansen notes that since Jackley used only 64 of the 200 words allowed in his explanation, he could have included all 71 words of Section 5 to edify us voters to this “unprecedented” change to “the wellspring of legal rights.”

    Of course, Hansen gets a head of himself and warns that Section 5 “guarantees an unknown committee of private litigants” a new right and “allows an unnamed, unnumbered committee of litigants (who are possibly from out-of-state) to step in and defend the Proposed Measure…”

    It is ironic that Hansen musters his Republican pals’ rampant fear of outsiders while arguing a lawsuit for an out-of-state plaintiff (LaGanga’s office address is Washington, D.C. and PhRMA is Delaware corporation). Hansen’s fretting is also incorrect: the committee is not unknown, unnamed, or un-South Dakotan. The statement of organization filed August 30, one day before lawyer Hansen filed his late application, declares Sioux Falls resident Clara Hart the chair and treasurer of the committee. She may have other people behind her, but Hansen’s parenthetical speculation has no basis in fact or evidence on the record. And if the drug price passes, if PhRMA sues to stop it, and supporters invoke their Section 5 right to intervene, the court could easily take a strict interpretation and say the only committee members legally entitled to intervene are those listed on the official document creating that committee, the statement of organization (which means, Clara, you’re on your own!).

    Of course, Hansen shouldn’t even bother with this standing argument, because, thanks to the Legislature’s interference via 2017 Senate Bill 59, this initiative wouldn’t become law until July 1, 2019, meaning PhRMA could follow R. Blake Curd’s timeline, sue right after election day, and get the drug price cap enjoined and declared unconstitutional a month after the election, before Section 5 could ever kick in to allow Hart her say in court.

    The plaintiffs argue that the court should compel Jackley to tell voters about at least one or more “potential effects” of the drug price cap:

    The Proposed Measure could (1) raise the price of prescription drugs for those with private insurance if prescription drug suppliers raise prices to recoup losses, (2) lead to drug shortages for vulnerable populations such as the elderly, low-income children, and low-income parents that rely on Medicaid for coverage if prices are set so low that drug companies will not sell drugs to the state Medicaid program, (3) lead to shortages of prescription drugs for state employees reliant on the State of South Dakota’s self-funded health insurance plan if the state is unable to negotiate a low enough price from drug companies, or (4) incentivize individual pharmaceutical companies to stop giving steep rebates and discounts to the Department of Veterans Affairs in order to charge higher prices to state agencies [Jon Hansen, Application for Writ of Certiorari, Johnson/SDBA/PhRMA v. Jackley, 2017.08.31, pp. 12–13].

    Hansen here makes the same argument the payday lenders did in 2015, asking the Attorney General to make their political and economic arguments for them on the ballot. Judge Trandahl at the circuit level and Justice Wilbur and our Supremes  rejected that argument from the payday lenders, and they’ll reject it from Big Pharma. Hansen doesn’t even provide industry propaganda to back up his arguments the way the payday lenders did; he just spouts four industry ifs and demands the A.G. write them up for everyone. The court will surely cite its reasoning from the last challenge of an A.G.’s explanation:

    As Justice Zinter recognized in his special writing in Schulte, “[p]ublic questions often have substantial political overtones.” 2004 S.D. 102, ¶ 26, 687 N.W.2d at 501 (Zinter, J., concurring) (quoting Gormley v. Lan, 438 A.2d 519, 525- 26 (N.J. 1981)). Likewise, “there can be substantial dispute as to what the true purpose of an amendment is; indeed there may be many ‘true purposes.’” Gormley, 438 A.2d at 525. It is simply not for this Court or the circuit court to require the Attorney General to include every practical or possible effect of each initiated measure. “We cannot be concerned with what the Attorney General should have said or could have said or might have said or what is implied or suggested by what he did say. Rather we must focus on the language chosen[.]” Schulte, 2004 S.D. 102, ¶ 18, 687 N.W.2d at 500. From our review of the Attorney General’s ballot explanation, the Attorney General did not abuse his discretion, and the explanation is adequate under SDCL 12-13-25.1 [Justice Lori Wilbur, Ageton v. Jackley, 2016 S.D. 29, South Dakota Supreme Court, 2016.03.30].

    The petition sponsors aren’t letting Big Pharma’s legal trickery hold them back: they are collecting signatures now on a petition authorized by the Secretary of State for circulation. And at this point, they shouldn’t wait: the days are getting shorter, and the deadline to submit petitions is November 6. They shouldn’t give up circulation time for a frivolous lawsuit that will likely fail.

    Related Campaign Finance Trivia: Suing Jackley is surely not personal for PhRMA: they gave his PAC $1,500 in 2016. Jon Hansen gave Jackley $350; McCaulley gave Jackley $250. We’re all friends here….



  • Democrats Address Discrimination, Republicans Change Subject

    Sioux Falls-area House candidates Clara Hart, J.R. LaPlante, and Michael Saba held a press conference Thursday to criticize the Legislature for its discriminatory actions and to vow to defend equal treatment for South Dakota’s growing minority populations.

    Democrats Saba, LaPlante, and Hart
    Democrats Saba, LaPlante, and Hart

    “Discrimination against anyone is discrimination against all of us,” Saba said Thursday.  “And if we have a Legislature that is starting to decide that we can discriminate against people that are different, whether it’s black or white or Indian or whether it’s because of their sexual orientation, that opens the door to discrimination against many other things. We can’t allow that trend to go on” [Dana Ferguson, “Dems Hope Frustration About ‘Discriminatory’ Bills Will Fuel Success,” that Sioux Falls paper, 2016.07.23].

    I’m not sure why Dana Ferguson puts “discriminatory” in quotation marks. The 2016 Legislature’s paranoid potty bill, the fake religious freedom bill, the anti-refugee bill (sponsored by 27 Republicans, including incumbents that Hart, LaPlante, and I intend to replace)—all explicitly, objectively discriminatory.

    Ferguson gets quotes from SDGOP chair Ryan Budmayr and Hart rival Rep. Herman Otten (Hart’s other Republican opponent, Isaac Latterell, got his fill of publicity for the week with his now famous Trump-not-mean-enough facepalm at the GOP convention and did not answer Ferguson’s call). Budmayr trivializes discriminationas a political distraction:

    Ryan Budmayr
    Ryan Budmayr

    The South Dakota Republican Party is a big tent…. The Democrats are going to stay away from issues that have made South Dakota successful—low taxes, one of the best business business climates and limited government [Ryan Budmayr, in Ferguson, 2016.07.23].

    Translation: Discrimination is no big deal, as long as the rich can get richer.

    Rep. Otten goes off on a complete tangent:

    Rep. Herman Otten
    Rep. Herman Otten

    We need to deal with illegal aliens that come into the country and it has nothing to do with discrimination…. It doesn’t matter what country they come from if they come here illegally [Rep. Herman Otten, in Ferguson, 2016.07.23].

    Translation: I didn’t pay attention to the question or the bills being discussed, so I’m going to talk about an issue that wasn’t addressed by any of the discriminatory bills discussed by Hart, LaPlante, and Saba. I’m just going to rail against immigrants in general, because it’s not discrimination if we fear all immigrants.

    Democrats offer intelligent discourse; Republicans offer fearful distraction.



  • Sanders Backing Legislative Candidates, Including Clara Hart!

    Bernie Sanders is moving to expand his revolution from cult of personality to a broader effort to elect progressives downticket. Yesterday Sanders sent supporters an e-mail urging them to donate to eight progressive legislative candidates across the country. Among those lucky eight is South Dakota’s own awesome Clara Hart, who is contending for a District 6 House Seat.

    Bernie for State Candidates, ActBlue screen cap, 2016.05.25
    Bernie for State Candidates, ActBlue screen cap, 2016.05.25

    The ActBlue page set up for this contribution call says that the Sanders campaign will split the take evenly among the Sanders Presidential campaign and the eight lucky state candidates.

    I have to say, I am envious. Any South Dakota candidate should thrill to the opportunity to have a national figure helping raise money for a state legislative race. Tapping resources beyond the usual South Dakota Democratic donor base can make a huge difference in challenging the demoralizing and corrupting one-party rule of the South Dakota Republican Party.

    Now let’s see how well those Sanders supporters can put their money where their mouth is.



  • Clara Hart: Refugee, Proud American, Candidate for District 6 House

    Clara Hart, Democratic candidate for District 6 House
    Clara Hart, Democratic candidate for District 6 House

    A sure way to check the xenophobic impulses of the South Dakota Legislature would be for District 6 to elect Clara Hart to the House. Hart has worked with immigrant families in the Sioux Falls school district to help them settle into their new lives in America. Hart herself is a refugee.

    Hart was born in Mozambique, in southern Africa. In 1964, Communist-backed guerillas launched a campaign against Portuguese colonial rule over Mozambique. In 1966, when Hart was eight years old, her family fled the violence in their homeland. They passed through Malawi to Tanzania, where they lived as refugees for three and a half years. 

    Working-age men were placed in separate camps from women, children, and older men. Clara and her siblings were stuck in a camp where they were lucky to receive one meal a day. Clara’s camp had one schoolroom that could hold 75 students, far fewer than the number of children in the camp. Each day, she would hurry to school hoping to grab a seat before the classroom was full and all remaining children were turned away. On the lucky days when she was able to stay, the classroom had no supplies, and all learning had to be done by memory.

    Hart’s father, a teacher, found good work and decent living conditions in a separate camp, but he could not see his wife and children. He didn’t even know for sure where they were. Clara was able to write letters to her father, but letters with too much detail describing the camp were censored.

    Clara’s mother was pregnant when the family reached Tanzania, and as the delivery approached, Clara wrote her father a letter asking what they should name the baby when it came. That letter was one of the few that made it past the censors, and Clara’s father was able to respond that, if it was a girl, he wanted to name her Agatha.

    Two weeks after baby girl Agatha was born, Clara’s father managed to visit his family’s camp. Officials at his camp had assured the men that their families were being taken care of, that there was no need to worry about them. The poor conditions of the women and children’s camp shocked Clara’s father. The family decided they had to flee that camp and Tanzania. They went into hiding in another camp in Tanzania and saved up money to go to Kenya.

    Sure that his family would be killed if they returned to Mozambique, Clara’s father applied for refugee status for his family. Every day for two weeks, he had to present himself to United Nations refugee resettlement authorities and tell them the same story about the risk his family faced in their homeland. If his story had varied even a bit, the UNHCR officials would have thrown out his application, adn the family might have been dooned. For Hart, today’s discussions of Syrian refugees trying to find safe haven from the Syrian civil war and calls for stricter immigration protocols stir unpleasant memories of the greate difficulties her family had forty years ago finding a safe place to live.

    UNHCR gave Clara’s family refugee status. They lived in Kenya for nineteen years, with financial assistance from UNHCR for a few years to pay rent, bus fare, and school fees.

    The Carnation Revolution toppled the Portuguese dictatorship in 1974 and led to the independence of Portuguese colonies, including Mozambique, in 1975. Clara’s family celebrated—they thought independence was their chance to go home. They sold their belongings in anticipation of moving back.

    However, the first Mozabiquans who tried to return disappeared. Apparently the new Cuban-backed Communist regime ruling Mozambique imprisoned and murdered some returnees. The country descended into civil war, and Clara’s family gave up hope of returning.

    Clara studied and worked in Chad, Sudan, and Zaire (now the Democratic Republic of the Congo). In 1987, her family applied to emigrate to North America. Most of her family went to Canada, which was far more supportive of Mozambiquan refugees than the United States. Clara, however, had married a South African doctor, and the U.S. favored South African immigrants. Clara recalls undergoing intense questioning about criminal background, health status, and other matters, a wrong answer to any one of which could have disqualified her and her husband from coming to America.

    Clara and her first husband received approval to come to America in November 1987; local bureaucracy and resistance kept them from receiving approval to emigrate until May 1988. They received their departure papers just ten hours before their plane was scheduled to leave for America.

    Clara landed in San Diego, then came to South Dakota with several Kenyans who heard from a family in Huron that South Dakota was a good place to live. Huron had been resettling refugees since the 1970s, when the Hmong came from Southeast Asia.

    Clara had spent her entire adult life to that point without the right to vote, with no constitutional protections of her rights. She immediately set out to obtain American citizenship. Her experience in Tanzania and Kenya made her embrace all the more passionately the opportunity to participate in making public policy and building her adopted country. She obtained a bachelor’s degree in political science and history from the University of Sioux Falls and now is working on a master’s degree in social work from the University of South Dakota.

    Hart says the people of South Dakota have always been warm, kind, and generous, and she recognizes she would not have found her place as a fellow citizen here without our help. She continues to serve refugees today, and participates in public affairs to repay the greatest country in the world.

    Hart is running for District 6 House. One of her incumbent opponents, Rep. Isaac Latterell, co-sponsored Rep. Scott Craig’s anti-refugee House Bill 1158 this Session. Luckily, Rep. Scott Craig saw the light thanks to some successful lobbying from people who actually work with refugees and pulled that odious bill before Rep. Latterell and other fearmongering Republicans could make any speeches or cast any votes on it. Send Clara Hart to Pierre, and other legislators may get the message more quickly that they should resepct and welcome refugees and other new Americans rather than fearing them.

    Hart has run for Senate and City Council before. She wanted to run for Legislature again two years ago, but her second husband, poet Jon Hart, was ailing, and they wanted to focus on their time together. Jon died last June. An ancestor of Jon’s, Michael Ellis Hart, was a Fusion Party (!!!) Senator from Lake County for one term back in 1897. Clara is now ready to take the Hart name back to Pierre and serve the state and the country she has chosen as her home.