High dudgeon over Nelson resolution

With a standing-room crowd lobbyists and lawmakers watching in amusement, six South Dakota lawmakers met Wednesday morning to discuss the wording of a nonbinding resolution opposing the federal Affordable Care Act.

It was, longtime lobbyists and staff said, possibly the first time a nonbinding resolution had ever been referred to a conference committee in the history of the South Dakota Legislature.

Outspoken Rep. Stace Nelson, R-Fulton, had originally proposed a resolution urging Congress to “repeal and defund” the Affordable Care Act. But his resolution also accused South Dakota leaders, including Gov. Dennis Daugaard, of being complicit in the enactment of the controversial law despite Daugaard’s stated opposition and resistance to an expansion of Medicaid.

"Numerous bills have been defeated that sought to nullify and fight this controversial act, while numerous bills were passed that helped enact it and implement it here in the state of South Dakota," Nelson said Wednesday.

In 2011, Daugaard’s administration successfully sought laws updating South Dakota’s insurance regulations to comply with changes in the Affordable Care Act. The state has also received federal grants to study potential implementation of the act’s health insurance exchanges, which Daugaard ultimately left to the federal government to run instead.

But after the House passed Nelson’s resolution, the Senate amended it to remove mentions of where South Dakota had gone along with the act’s provisions. When the resolution came back to the House, Nelson requested a conference committee to resolve the differences between the chambers — and to many lawmakers’ surprise was granted one.

When the committee met on Wednesday morning, it included a key Nelson ally, Rep. Lance Russell, R-Hot Springs — but also Sen. Dan Lederman, R-Dakota Dunes, who is currently suing Nelson over an alleged election law violation.

In the crowd were lobbyists and legislators, including House Speaker Brian Gosch, Speaker Pro Tempore Dean Wink and Assistant Majority Leader Justin Cronin. Gosch, who has clashed with Nelson, was even eating popcorn as he watched. Also there were Sen. Larry Rhoden, R-Union Center, who is running against Nelson for U.S. Senate, and Rep. Tim Rounds, R-Pierre, whose brother Mike is also in the Senate race.

Sen. Craig Tieszen, R-Rapid City, asked the conference committee to kill Nelson’s resolution entirely.

"While our colleagues are in the halls of the Capitol putting the finishing touches on their bills, lobbying for their pet projects or trying to protect the taxpayers in their district… we’re in a committee room talking about a resolution with no force of law that is more about scorecards and postcards than about legislating for the people of South Dakota," Tieszen said.

Tieszen said the Senate had made “a mistake” to amend Nelson’s resolution.

"I don’t think the Senate is prepared to make another mistake," he said.

Sen. Billie Sutton, D-Burke, commended Nelson’s “passion” on the subject but said it was time to “move on.”

Nelson said public opposition to the Affordable Care Act in South Dakota meant this was an issue worth the Legislature’s time.

Conference committee rules require support from at least two of the three members from each chamber. That meant Nelson and Russell blocked Tieszen’s motion to kill the resolution. Tieszen, Lederman and the two Democrats on the committee in turn blocked Nelson’s amendment restoring most of his original language. Finally, lawmakers agreed to dissolve without agreement. The issue now returns to the House and Senate, who are expected to kill the resolution for good.

Two sides of texting ban dispute unable to agree, ban dies

An unsolvable dispute about enforcement sunk a statewide ban on texting while driving Tuesday in the Legislature.

Both the House and Senate had passed statewide texting bans. But the Senate version gave police the power to pull over texting drivers, while the House version did not. Senators were willing to accept weaker powers, but only if stronger texting bans in cities such as Sioux Falls were allowed to stand. House members insisted on overriding those bans in the name of uniform law across the state.

"It’s clear to me that we’re at loggerheads here," said Sen. Craig Tieszen, R-Rapid City.

Rep. Brian Gosch, R-Rapid City, had championed the House version. Gosch said he doesn’t believe letting police pull over texters works to deter texting while driving — and might make it worse.

"I’m thinking if it’s too strong, people hide the equipment too much, and they lose their peripheral vision on the road and it causes more accidents," Gosch said.

Sen. Mike Vehle, R-Mitchell, disputed that. A law that police can’t enforce directly won’t do much good, he said.

All six lawmakers on the conference committee appointed to resolve the issue recognized the impasse and voted to kill the bill.

Tieszen, a longtime champion of a statewide texting ban, said he was willing to accept the bill’s demise because of the growing number of cities that have passed local bans. Doing nothing allows those local bans to continue.

"No bill is better than a bad bill," Tieszen said.

Gosch in the driver’s seat in texting ban battle

Earlier today, the Senate State Affairs Committee voted 5-4 to pass House Speaker Brian Gosch’s version of a statewide ban on texting while driving. Some longtime supporters of texting bans oppose Gosch’s measure because it’s a “secondary offense” — which means drivers can’t be pulled over for it, only given an add-on ticket for another offense — and because it overrides the stronger texting bans a number of South Dakota cities pass.

But ultimately it’s no surprise that Gosch’s bill is advancing while Vehle’s heads into hostile territory tomorrow in the House Transportation Committee. In this political battle, Gosch holds all the cards.

Ultimately it comes down to this: Gosch doesn’t care very much about banning texting while driving. He’s opposed bans for years, arguing they don’t do much good and aren’t enforceable. He only came on board this year when he melded a texting ban to language overriding local texting bans. That override is where Gosch is passionate — he believes cities are already exceeding their legal authority by passing texting bans and wants to make that explicit.

In contrast, traditional texting ban supporters like Mike Vehle and Craig Tieszen want very much to ban texting while driving, which they believe is a scourge leading to accidents and deaths across South Dakota. So if the result of this legislative dispute is another year of no statewide ban, that’s a defeat for them.

Because the status quo is more acceptable to Gosch than it is to Vehle and Tieszen, he’s more willing to see both bills die — the likely outcome if the two chambers can’t make an agreement. So Gosch has no incentive to make any concessions from his position. He either gets what he wants, or things stay the same — neither one a loss.

Underpinning this power is Gosch’s support in the House, which has traditionally resisted texting bans. By being able to deliver a House majority for his statewide ban this year, and comfortable in the existence of a majority to defeat any versions he dislikes, Gosch can negotiate from a position of strength.

Vehle’s position of weakness has been clear for weeks. Instead of sticking to his guns and getting the Senate to pass his ideal texting ban — where police can pull people over for texting and the penalty is stronger — Vehle preemptively watered down his bill with elements of Gosch’s proposal. Today he pronounced himself undecided whether Gosch’s bill would be better or worse than the status quo.

Presuming the House sticks to its guns and defeats any alternative to Gosch’s bill, there are two potential outcomes here: either the Senate can acquiesce to Gosch’s version and pass it, or it can amend it and set up a conference committee fight. But as Speaker of the House Gosch would appoint all the House members of the conference committee. Since bills before a six-member conference committee need support from at least two of the three members from each House, Gosch would be able to effectively block any proposal he doesn’t like. With, as stated above, no incentive for Gosch to compromise, that would give Vehle two choices: surrender, or kill the bill. 

The real strategic mistake on the part of texting ban supporters was not launching an initiated measure years ago. They cite polling showing overwhelming popular support for texting bans, but kept coming back year after year to bash their heads against the immovable opposition in the House. Now they’re likely to get what they wanted — a statewide texting ban — but in a form they abhor.

Keep ‘dangerous’ mentally ill from buying guns, committee says

Federal law prohibits the dangerously mentally ill from purchasing firearms. But South Dakotans who are involuntarily committed for being a danger to themselves or others dodge that law right now, because South Dakota doesn’t submit lists of the dangerous mentally ill to the federal background check system.

That’s on the verge of changing. On Tuesday morning, a Senate committee voted 5-2 for a bill to begin filing that mental illness information with the National Instant Criminal Background Check System, or NICS.

The measure, House Bill 1229, would require mental health officials to notify the federal government if someone were involuntarily committed for being a danger to one’s self or others. Prosecutors would be required to tell NICS if someone were acquitted of a crime by reason of insanity, or declared unfit to stand trial.

HB1229 also sets up a process by which people who believe they are no longer mentally ill can ask South Dakota judges to restore their gun rights. Supporters say that bypasses a much more cumbersome process of appealing to the federal Bureau of Alcohol, Tobacco and Firearms.

South Dakota already reports other information to NICS, including when someone is convicted of a felony.

A similar measure was shot down last year. But with support this time from the National Rifle Association, it’s having better luck this year. If the South Dakota Senate approves the bill, it will head to Gov. Dennis Daugaard for a signature.

"To me it’s one of the reasonable, responsible responses we can make to all the issues of gun violence in our society today," said Sen. Craig Tieszen, R-Rapid City.

But while the NRA and the National Shootings Sports Association backs the measure, a different gun group is fiercely opposing it as an attack on the Second Amendment. The National Association of Gun Rights and its South Dakota affiliate, South Dakota Gun Owners, have urged their members to contact lawmakers and lobby for a no vote.

Neither group testified on Tuesday before the Senate committee.

"I’ve been deluged with emails and I’m kind of surprised there’s no one here to oppose it," said Sen. Mike Vehle, R-Mitchell.

Several lawmakers found the law concerning.

Sen. Tim Begalka, R-Clear Lake, worried that it’s too hard to get off the NICS registry, even with the new system set forth in HB1229. He opposed granting more power to the federal government and worried that veterans could find themselves unable to buy guns because they seek treatment for PTSD.

"I don’t believe we have a problem in South Dakota," Begalka said. "We’ve gone years without this. I believe we’re ostracizing the mentally ill."

Sen. Jeff Monroe, R-Pierre, said the rapid growth of mental illness diagnoses in recent decades makes him leery of barring gun purchases because of someone’s mental health.

Tieszen, though, said the law is narrow and wouldn’t apply to most people with mental health issues.

"If we have a veteran who comes home and is dangerously mentally ill and is a danger to themselves or their community, don’t we want them to not have easy access to firearms?" Tieszen said.

Bill opening police logs heads to Senate

Police logs should be open records, a Senate committee said Tuesday.

Those collections of calls for service to local law enforcement can be released to the public right now — but at the discretion of law enforcement.

Under a measure backed by both the news media and law enforcement, the law saying police “may” release logs will be updated to say they “shall” do so.

It contains exceptions allowing police to withhold information relevant to sensitive information, as well as calls related to mental health issues.

"Taxpayers have a right to know the kind of work that their law enforcement community is doing," said Sen. Craig Tieszen, R-Rapid City and a former Rapid City police chief. "That’s what this bill seeks to protect."

Most police departments, including those in Sioux Falls and Rapid City, already release regular police logs to the public. Tieszen said Rapid City had done so for as long as he can remember.

Steve Willard of the South Dakota Broadcasters Association said there are no major examples of police departments refusing to release logs. But he said “it’s time” to open up that information, which he called both “incremental change and positive change.”

Steve Allender, Tieszen’s successor as Rapid City Police Chief and an officer with the South Dakota Police Chiefs Association, said he spoke to “dozens” of his fellow chiefs.

"None of them are opposed to it, and we support the bill," Allender said.

Representatives of Gov. Dennis Daugaard and Attorney General Marty Jackley also supported the bill. It grew out of 2012’s open government task force, which the two men convened. But last year’s measure opening police logs went down to defeat because it was paired with a more controversial provision to release mug shots.

The Senate Judiciary Committee on Monday unanimously passed the police log bill. It now heads to the full Senate.

Panel approves pay hike for lawmakers

Legislator salaries should rise for the first time in 15 years, top legislative leaders said Monday.

Under the proposal, lawmakers’ annual salary would rise from $6,000 per year to $10,000. Newly elected legislators would get the raise next year, while current legislators wouldn’t see any increase in their pay until 2017.

Sen. Craig Tieszen said $6,000 was too low, meaning that only wealthy or retired citizens can spend three months each year in the Legislature.

"Does this Legislature reflect the demographics of your district and of the state?" Tieszen asked his colleagues. "The answer is clearly no."

Others agreed. Sen. Ryan Maher, R-Isabel, called the Legislature “one of the most expensive hobbies I’ve ever had,” and said he spends about $15,000 per year of his own money traveling around his huge rural district in north-central South Dakota.

Sen. Dan Lederman, R-Dakota Dunes, said a pay increase would help “keep a citizen legislature alive.”

"It is a good step for us to try to get the people involved in the process that don’t necessarily have the funds or the time," Lederman said.

The measure now heads to the full Senate after the Senate State Affairs Committee approved it 7-2, with Sen. Larry Rhoden, R-Union Center and Sen. Corey Brown, R-Gettysburg, voting no.

Committee: Parents should vote where they live, not where their kids go to school

Under South Dakota’s open enrollment system, students can attend schools other than the district in which they live. But their parents remain residents of their home district, voting in its elections, not the districts where their children study.

On Wednesday, a legislative panel rejected a proposal to change that.

Sen. Tim Begalka, R-Clear Lake, had proposed letting parents vote in districts where their students study, though they would have to pick which district they’d vote in.

"It encourages the parents to be able to vote and participate and possibly run for the school board in the school where their children go," Begalka said.

Begalka said some open-enrolling parents identify much more with the school their children attend than the district in which they live, and should be able to get involved in the running of their children’s school.

But the proposal ran into a one-two punch of opposition. School representatives said Begalka’s idea was unfair, while Secretary of State Jason Gant and a county auditor testified it would be very difficult for elections officials to administer.

Dick Tieszen, a lobbyist for the Associated School Boards of South Dakota, noted that these non-resident parents would be able to vote on tax increases “even though they don’t pay taxes in that district, even though they have no property, and even though they would not be affected by that decision.”

Gant said it would be very complicated if elections officials had to deal with some citizens voting outside of their jurisdictions.

"The more information, the more ballot styles, the more complex that you make elections, it causes errors," Gant said.

Begalka said many of the criticisms were “red herrings,” but a majority of the Senate Local Government committee said the bill’s opponents raised valid concerns.

"This is really representation without local-effort taxation," said Sen. Deb Soholt, R-Sioux Falls.

The committee voted 6-1 to kill Begalka’s bill, Senate Bill 73.

The decision came a few minutes after the same committee approved a bill allowing non-residents to vote in a different type of election — the formation of road districts.

Rep. Brian Gosch, R-Rapid City, said it was unfair that residents of an area could form a road district to tax all the land in an area without the consent or input of non-resident landowners.

His Senate Bill 65 redefines valid electors for a road district election as all landowners in the district, rather than registered voters as it is currently.

Landowners includes businesses and trusts that own land in the district.

The Senate Local Government committee approved the bill unanimously, though at the end of the day Sen. Craig Tieszen, R-Rapid City, expressed some worry about how far the state should go in de-coupling voting from residency.

"Where do we draw the line and why about where an absentee landowner can participate and have a voice, and where they can’t?" Tieszen said.

SB65 now heads to the full Senate.

Lawmakers reject ban on outside funding of elections

South Dakota lawmakers rejected a ban on outside groups funding South Dakota elections Wednesday, amid concerns the bill would harm Native Americans’ access to the polls.

Secretary of Jason Gant had proposed the bill, SB33, which he said was motivated by concern that outside groups could try to sway elections by giving local governments money to help with their elections.

"You need to think of the billionaire from New York who’s going to come in and say, I’ll give the county $X million, set up a voting location here, here and here, but only here, here and here," Gant said. "You don’t want some outside group being able to have that option to try and come in and have that activity take place. It’s up to the government to run the administration of an election."

So far in South Dakota, the only group to help fund elections is Four Directions, a nonprofit dedicated to helping Native Americans vote. That group’s executive director, O.J. Semans, told lawmakers Four Directions stepped in to help cash-strapped reservation counties offer early voting locations closer to where Native Americans lived.

In some South Dakota counties, such as Buffalo and Dewey counties, the county courthouse is located in a rural area far from Native-dominated towns. Residents of these impoverished areas, many of whom lack cars, have to drive 30 to 100 miles round trip to visit the courthouse, Semans said.

"I never thought that providing equal access to Native Americans was considered influencing an election," he said. "I consider equal access to the ballot box the backbone of our democracy."

The political “elephant in the room” in the debate, as Sen. Craig Tieszen, R-Rapid City, termed it, is that “Native Americans tend to vote Democrat.”

He proposed a counterfactual in which the Republican Party or some ally paid to help a conservative county open voting centers in places with lots of conservative voters.

"I think they’re admirable efforts on the part of Four Directions, but I think the path this leads to is probably not a good one," Tieszen said. "At the end of the day, you might ahve to relegate Four Directions to doing other things than being involved directly in the governmental process of voting."

But other lawmakers on the Senate Local Government committee were more skeptical of Gant’s idea.

"At the end of the day, this is about access," said Sen. Jean Hunhoff, R-Yankton. "I think the intent is very good, (but) I’m not sure this is the fix."

The committee voted 5-1 to kill Gant’s bill. After the vote, Gant said he wouldn’t push further for lawmakers to revive the concept, though he added that “if legislators want to do that stuff, they can do it.”

Also on Wednesday, the same committee unanimously approved two less controversial voting bills Gant proposed.

One, SB34, will let military personnel who are deployed overseas cast South Dakota ballots electronically. Right now, they have to vote through mail, a process that can take weeks with someone stationed in Europe or Asia.

"I think this is a wonderful step forward to help our military," said Sen. Deb Soholt, R-Sioux Falls.

Gant said he’s looking to expand the idea, first to U.S. State Department employees stationed overseas, and then to military spouses. He didn’t rule out future applications of the concept for the general electorate.

The committee also approved SB35, which adds new flexibility for delaying local elections in the event of emergencies such as disastrous weather.

Legislature won’t discuss EB-5 audits until 2014

A final attempt by Democrats to immediately start an additional audit of the controversial EB-5 visa program was defeated Monday.

The South Dakota Legislature’s executive board voted largely along party lines to remove from the agenda discussion of EB-5 requested by Rep. Kathy Tyler, D-Big Stone City.

Tyler has argued that current investigations and audits initiated by Gov. Dennis Daugaard don’t go far enough and aren’t independent enough to get to the bottom of the visa program. That federal program, a vehicle for wealthy foreigners to invest in American projects, is under federal criminal investigation for its role in funding the bankrupt Northern Beef Packers plant. Attorney General Marty Jackley concluded that a $550,000 state grant to the beef plant was redirected to the EB-5 program.

But a majority of lawmakers on the executive board, which runs the Legislature in between sessions, said legislators could wait for current investigations to conclude instead of authorizing more audits immediately, as Tyler wants.

"Anything that we at this point in time discuss about the EB-5, as long as it’s under investigation by the federal government, is very premature," said Rep. Lance Carson, R-Mitchell.

Senate President Pro Tempore Corey Brown, R-Gettysburg, said the EB-5 program is “absolutely an issue for the Legislature” and that he wants to get to the bottom of things — but not yet.

Tyler disagreed sharply.

"It is our state’s responsibility to monitor this program and we didn’t do it," she said. "To totally ignore this discussion as an (executive) board is unfathomable."

The brief debate got heated. Brown dismissed Tyler as “a retired schoolteacher” when saying he would prefer to learn about EB-5 from an expert instead of her. Tyler in turn accused Republicans of having “closed your minds to any discussion” in spirited remarks.

Aside from the federal investigations, state examinations of the EB-5 program include:

- An external review by a Pierre accounting firm of the Governor’s Office of Economic Development, scheduled to be finished this month

- An audit by the Department of Legislative Audit, scheduled to finish by Jan. 24

- A review by accounting firm Eide Bailly of GOED’s internal control procedures, scheduled to finish on Jan. 3

Sen. Craig Tieszen, R-Rapid City, who said he was willing to discuss Tyler’s requested audit, said lawmakers will definitely continue to monitor the EB-5 program.

"I don’t think that now is the time to proceed. I think we ought to give deference to our criminal investigations, both our state and federal ones," Tieszen said. "On the other hand, this is an issue for the Legislature, and we will be reviewing this at some point. It’s our responsibility to review this, either to review what’s happened and what needs to be done in the past, but perhaps more importantly, how we need to protect ourselves from future incidents."

Lawmakers debate ‘dating relationships’ in study of domestic abuse laws

Experts in law enforcement told South Dakota legislators that domestic violence laws should protect dating couples, even if they don’t live together or have children.

That’s one of several issues facing the lawmakers on this summer’s Domestic Abuse Study Committee, formed after several reform attempts failed in the Legislature in recent years.

At Wednesday’s meeting in Pierre, several prosecutors and police leaders joined domestic violence advocates in saying that protections for dating couples. South Dakota’s current law says an assault is only domestic abuse if the couple is “living in the same household… have lived together, or… have a child together.”

"One of the shortcomings of our statute, I think, is the dating violence," said Brian Paulsen, Yankton’s police chief. By not counting domestic violence between a dating couple, he said, "I think we’re missing a significant number of cases of domestic violence."

Mark Vargo, the Pennington County state’s attorney, acknowledges that whether or not a couple is dating can be hard to determine. But he said he thinks it’s worth it to draw a line there.

"We are (asking) a difficult question of exactly where to draw the line," Vargo said. "My preference would be that it be somewhere around the dating. There is a difference between acquaintances and friends, and people who are dating."

A bill last year would have inserted language about couples in a “dating relationship.” But the House of Representatives amended the bill to refer to people living together. 

An attempt at a compromise then failed when two lawmakers brought up new objections. Rep. Troy Heinert, D-Mission, and Rep. Mike Stevens, R-Yankton, argued South Dakota’s domestic violence laws go too far already at the March meeting. Heinert said people accused of domestic violence are “guilty until proven innocent,” while Stevens criticized provisions calling for the mandatory arrest of people accused of domestic violence.

Some of those issues arose again this week. Stevens, a member of the domestic abuse committee, suggested the state’s existing assault laws might be enough.

"It seems to me there are several subsections, both in simple assault and aggravated assault, that would certainly apply in domestic violence situations," said Stevens.

Others, including both members of the committee and outside experts, disagreed.

"Because of so many issues that are associated with domestic violence… there should be a distinct statute and that domestic violence tag on the assault," said Paulsen.

One option lawmakers are considering is making domestic violence its own offense, rather than a “tag” that gets applied to assault charges. Chief Deputy Attorney General Charles McGuigan said such a law might make interacting with federal domestic violence laws either. Those federal laws, including removing a person’s right to bear firearms if they’re convicted of domestic violence, have been an obstacle to past attempts to broaden domestic violence laws.

Sen. Craig Tieszen, R-Rapid City, said that’s why lawmakers need to fine-tune domestic violence laws.

"We owe it to our citizens to get it right… because there’s a lot at stake, including losing your gun rights for life," Tieszen said. "We owe it to victims of domestic violence to make sure that the definition includes everyone who should be included in the protections that domestic violence laws provide."

McGuigan said a stand-alone domestic violence offense could make it easier for the federal government to determine who’s really been convicted of domestic violence.

"In my discussions with some of the officials at the federal level, they would prefer that… because they don’t have to sort through the simple assaults and disorderly conducts to determine if it’s really domestic violence, or a bar fight," McGuigan said.

But he said Attorney General Marty Jackley has no official position on the matter, and that it’s possible a stand-alone statute wouldn’t improve those issues.

Another dispute that has sunk past attempts at reform is coverage for same-sex couples. Tieszen and others have backed changes — such as gender-neutral language about “dating relationships” — that cover homosexual as well as heterosexual partners. But social conservatives in the House of Representatives have defeated those attempts.

Rep. Jim Bolin, R-Canton, focused on the issue of gender in Wednesday’s hearing. After receiving statistics from several witnesses that 90 percent or more of domestic violence cases in South Dakota involve men attacking women, Bolin urged lawmakers to focus on what was “possible” to “push… through the House.”

"I want clearly something that will address the vast, vast majority of the circumstances we deal with," Bolin said.

The Legislature’s domestic violence committee hasn’t adopted a final report. It will meet again on Oct. 21 to work come up with several proposals for possible language.

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