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.

Autism therapy bill defeated, new fight likely coming

A bid from parents and doctors to require more coverage of an expensive autism treatment was defeated Thursday after insurance companies and businesses opposed the mandate’s cost.

Over two hours of testimony and debate, a range of supporters told lawmakers that “applied behavioral analysis” therapy, or ABA, was the best way to treat many young children with autism.

"Research tells us that when comprehensive ABA therapy is provided at the prescribed intensity, up to 47 percent of individuals will be able to mainstream into a regular first grade classroom without an aide," said Dr. Daisha Seyfer, a developmental behavioral pediatrician at Sanford Health.

Parents testified about how ABA treatment had made a huge different in their children’s behavior. Michelle Powers of Brookings said her daughter’s autism made her act “out of control” with daily outbursts. After seven months of prescribed ABA treatment, the outbursts had become less severe and less frequent — once a week instead of daily.

But the same thing about ABA therapy that experts say brings results, its intensive nature, also makes it expensive. A full load of ABA therapy involves up to 40 hours of treatment per week, and can easily cost more than $100,000 per year.

That means few families can afford it, but also that insurance companies don’t want to fund it.

Avera is the only health plan in the state to currently cover ABA. Some parents received payment for ABA therapy from Wellmark, but the company says that was a mistake due to imprecise billing. In January, it notified families it would no longer be covering ABA — which brought those families to the Legislature.

Jana Johnson, a doctor and a mother of a child with autism, complained that if autism could be treated with surgery or a pill, insurance companies would cover it in a heartbeat. It’s only behavior therapy, Johnson said, that they balk at.

Rep. Scott Munsterman’s bill required some health care plans to cover ABA therapy and other autism treatments. Around 60,000 to 90,000 citizens would be affected — primarily those who get their coverage from larger employers, and those with smaller plans that have been grandfathered in under the federal Affordable Care Act. Small business insurance plans and non-grandfathered plans on the individual marketplace would would not be affected.

Munsterman originally proposed to require all plans to cover ABA therapy. But under the Affordable Care Act, states that impose new coverage mandates on insurance companies are required to pay for that cost. To dodge a budget battle and weaken opposition from Gov. Dennis Daugaard, Munsterman narrowed the bill to apply only to those plans the state wouldn’t have to pay for.

But insurance plans said they shouldn’t have to pay for expensive treatment, which they said would force them to pass costs on to customers in the form of higher premiums.

"Many South Dakotans are increasingly concerned about their ability to afford health insurance," said Darla Pollman Rogers, a lobbyist for Wellmark Blue Cross Blue Shield of South Dakota. "We share that concern and we encourage legislators to carefully scrutinize proposed legislation that might in any way increase costs."

Wellmark previously estimated it might cost as much as $7 per member per year more to cover ABA treatment for everyone, but said the actual figure was probably higher.

Pollman Rogers also argued that ABA therapy was experimental and unproven compared to other, less expensive therapies. Studies show ABA isn’t helpful “in all cases,” Pollman Rogers said, arguing for more research.

That contradicted Seyfer’s testimony, and a list she provided of 26 different scholarly articles she said backed up the effectiveness of ABA therapy.

State Sen. Dan Lederman criticized the bill’s supporters for not finding a compromise with insurance companies. He also said he was hesitant to support a measure when the two sides disagreed on the facts and figures.

The Senate Commerce and Energy Committee voted 5-2 to kill the bill, with Sens. Ryan Maher and Angie Buhl O’Donnell opposed.

But supporters aren’t giving up. Munsterman is looking at ways to bypass the Senate committee, which could include sticking the autism language into another bill. That showdown will likely come on Monday.

Term limits group launches mailer campaign: The group U.S. Term Limits, which advocates for term limits on legislators, announced today that it’s sending postcards to constituents of Sen. Tim Rave and Sen. Dan Lederman, urging them to oppose the constitutional amendment that would extend South Dakota’s legislative term limits from eight years to 12.
You can view the Lederman postcard here (PDF). 
The postcard makes reference to a poll the group (apparently) conducted by the group in 2009 of South Dakota voters. You can read the poll questions here. The language of the questions is, by and large, phrased to push the reader towards term limit support. (The first question, for example, doesn’t ask what people feel about term limits, or making them longer. It asks “how angry” they are about that.)

Term limits group launches mailer campaign: The group U.S. Term Limits, which advocates for term limits on legislators, announced today that it’s sending postcards to constituents of Sen. Tim Rave and Sen. Dan Lederman, urging them to oppose the constitutional amendment that would extend South Dakota’s legislative term limits from eight years to 12.

You can view the Lederman postcard here (PDF). 

The postcard makes reference to a poll the group (apparently) conducted by the group in 2009 of South Dakota voters. You can read the poll questions here. The language of the questions is, by and large, phrased to push the reader towards term limit support. (The first question, for example, doesn’t ask what people feel about term limits, or making them longer. It asks “how angry” they are about that.)

From Monday: Bill would authorize self-driving cars

In case readers missed it, on Monday, I wrote about a bill being sponsored by Rep. Isaac Latterell and Sen. Dan Lederman dealing with a high-tech subject: self-driving cars.

Here’s that story:

Self-driving cars have been the stuff of science fiction — but if some lawmakers get their way, they could soon be heading to South Dakota.

With companies like Google and General Motors developing autonomous vehicles, California, Michigan and other states have passed laws to give the self-driving cars access to the road. Rep. Isaac Latterell, R-Sioux Falls, wants South Dakota to join them.

"I’ve seen a lot of different states try to encourage driverless car innovation," said Latterell. "We want to be one of the states that’s leading in technology. I think this is another way we can attract car manufacturers who are trying to make advances in this area to come to South Dakota."

His measure, Senate Bill 139, would allow autonomous cars onto South Dakota highways — but with plenty of restrictions. They’d be allowed only for research and testing purposes, not recreational use. The cars would have to have an operator capable of taking control of the car at any moment, if the sensors or computerized guidance systems failed. And the company would have to post a $5 million bond in case anything went wrong.

"There’s a real tension between fostering innovation… and on the other hand protecting public safety," said Bryant Walker Smith, who teaches and studies the legal aspects of automation at Stanford University. "Thirty thousand people die on U.S. roads every year, largely through human error, but you can imagine the consequences of an errant robot, both in terms of lives and the technologies involved."

Latterell and other enthusiasts, such as Sen. Dan Lederman, R-Dakota Dunes, believe people will grow more comfortable with the idea of a car driving itself as they get more familiar.

"Initially, there are going to be some knee-jerk reactions against the bill, because to think of a car driving itself seems so foreign," said Lederman. "It is a very different idea. But industries have put hundreds of thousands of miles on autonomous cars without any accidents in other states like California."

The self-driving car technology is in a curious state. Commercially available cars can already monitor and control, to varying degrees, a car’s speed and direction. But the dream of a car that can function as a chauffeur, going from one place to another while its owner naps in the back, isn’t here yet.

"The vision of a fully self-driving car has been 20 years away ever since the 1930s," said Smith. "Now the good news is that it’s coming in 10 years."

Though fully automated cars are largely the province of major corporations, some universities and smaller companies are also working on the subject — even here in South Dakota.

"We don’t build automobiles. Our research is to apply autonomy to any vehicle," said Jeff McGough, director of the computational sciences and robotics program at the South Dakota School of Mines and Technology in Rapid City.

McGough said students and professors are currently working on building robotic vehicles off-roads, partly because of legal issues with taking autonomous cars onto public roads. Instead, they drive their vehicles on private land. But he said he knows students who would love to retrofit cars with self-driving capabilities if it were legal.

"I don’t know of any private land that has, say, interstate," McGough said. "Having the laws in place where we could do research, that would be great."

But McGough said Latterell’s bill might not help student researchers. The requirement for a $5 million bond, in particular, would probably be too great a barrier for a group of students to overcome.

Latterell and Lederman said they haven’t had any conversations with autonomous car manufacturers, but hope they’ll be intrigued if South Dakota joins Nevada, California, Florida, Michigan and Washington, D.C. in passing laws governing self-driving cars.

But different states have taken different approaches to autonomous vehicles, and some meet with more support from the car makers than others.

Lederman and Latterell “certainly will hear from some of the industry participants, but it won’t necessarily be an enthusiastic embrace of the language,” said Smith.

In some states, developers of self-driving vehicles have actually opposed legislation to give them access to the roads with conditions. That’s in part because some of the companies don’t think they need the laws.

"It’s probably already legal for an auto manufacturer to take one of their vehicles, duly licensed in South Dakota… and under the careful supervision of a test driver, operate it on a public road," Smith said.

But “probably legal” doesn’t provide the certainty companies are looking for, so they have welcomed legislation specifically legalizing it — except where lawmakers have proposed too many restrictions.

"Some people might view this as a bill that expands the legality of the activity," Smith said of Latterell’s bill. "It provides certainty, but it may in fact contract the legality of the activity."

A representative of Google did not respond to a request for comment.

Latterell and others noted that whatever shortcomings self-driving cars have, so do human drivers, who cause plenty of accidents by getting distracted or not paying enough attention.

"The autonomous vehicles never stop paying attention to everything," Latterell said.

Smith echoed that concern.

"People should be much more worried about human drivers than they actually are," he said.

But whatever effect South Dakota’s law has, it will likely get people thinking seriously about a technology that could be arriving on the market very soon.

"Starting the discussion is good for the state," Latterell said.

Senate Bill 139 has been assigned to the Senate Transportation Committee but has not yet been scheduled for a hearing.

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.

Willard, Nelson countersue Gary Dykstra

Daniel Willard and Stace Nelson are suing Gary Dykstra, their alleged co-conspirator in political robocalls who has testified against them.

The two men are defendants in a civil lawsuit filed by state Sen. Dan Lederman, over the robocalls. Dykstra, who has admitted to helping to send out the robocalls, testified about Willard’s and Nelson’s involvement in both that civil suit and Willard’s criminal trial.

Late Tuesday, Willard and Nelson countersued Dykstra as a “third-party defendant” in the civil suit, saying some of his testimony “has not been truthful” and has caused Willard and Nelson to be “damaged.”

Dykstra, the countersuit claims, “may be liable to (Nelson and Willard) for all or part of any remaining portions of Plaintiffs’ claims in this matter.”
Lederman’s suit, amended earlier this month, is seeking a court injunction blocking Willard and Nelson from “the making of all unauthorized (robocalls)” and paying damages.

Lederman is seeking class-action status for the lawsuit.

Nelson is a state lawmaker who is running for U.S. Senate. Willard is a political activist who made an unsuccessful run for chairman of the South Dakota Republican Party.

UPDATE: Here’s the legal documents in the case. First, the amended complaint filed by Lederman seeking class action status for his suit:

Second, the third-party lawsuit filed by Willard and Nelson against Dykstra:

Rave replaces Olson as Senate majority leader

A state senator from Baltic was elected Saturday to be the new majority leader in the South Dakota Senate.

Sen. Tim Rave, a Republican, replaced Sen. Russell Olson of Wentworth in the top spot after Olson resigned for a new job.

For Rave, it was the third high-profile leadership position in his decade-plus in the Legislature. He spent two years as Speaker of the House before being elected to the Senate, and then spent two more years as chairman of the South Dakota Republican Party.

"I’m really humbled to be elected by my peers to be their voice," Rave said. "It’s pretty special."

Rave said he didn’t have any particular policy goals as majority leader.

"My job is to make sure that our voice is heard, both to the executive branch and to the public, to get our message out and make sure we speak as uniformly as we can," Rave said.

Sen. Jason Frerichs, the Wilmot Democrat who is the Senate minority leader, said he’s worked well with Rave in the past.

"We served together. He was Speaker and I was a freshman member in the House," Frerichs said. "At that time he was real fair to me, and I expect that to continue in his new role."

Rave holds an unusually vulnerable seat for a party leader. He won reelection last year with just 51.2 percent of the vote over former legislator Dan Ahlers, a Democrat. Olson and his predecessor, Dave Knudson of Sioux Falls, regularly won 55 percent or more of the vote.

After Rave was elected majority leader at the Senate Republicans’ meeting in Pierre, the Republicans then elected Sen. Dan Lederman of Dakota Dunes to replace Rave as assistant majority leader.

Sen. Reid Holien of Watertown was chosen to replace Lederman as a party whip.

The other two Senate Republican whips are Sen. Larry Rhoden of Union Center and Sen. Ryan Maher of Isabel.

Judge: Bloggers are journalists, but Powers might have to testify anyway in Willard trial

A prominent South Dakota blogger counts as a journalist but still needs to show up to a trial where he’s been called as a witness, Judge Vince Foley ruled Monday.

Pat Powers, who operates the conservative “South Dakota War College” political blog, argued he shouldn’t have to testify in the trial of activist Daniel Willard because Powers is a journalist, protected by the First Amendment to the Constitution from having to divulge confidential sources.

Willard is accused of sending robocalls attacking political leaders before the 2012 election without the disclaimers called for by South Dakota law. The charges are misdemeanors. His trial is this week in Madison.

Powers has written about the story on his blog, in some cases citing anonymous sources giving updates on the criminal investigation into the robocalls. He’s among several other high-profile Republicans who have been called by Willard as witnesses for the defense, along with Secretary of State Jason Gant, state senator Dan Lederman, and Tony Venhuizen, a senior adviser to Gov. Dennis Daugaard.

"Mr. Powers has operated his news website since 2005. I think he squarely fits within a criteria as a journalist," said Joel Arends, Powers’ attorney, during a pre-trial hearing Monday afternoon. "Any news gathering conducted by Mr. Powers is protected by the reporter’s privilege."

Arends also represents Lederman in a civil lawsuit Lederman filed against Willard about the robocalls.

Willard’s attorney, R. Shawn Tornow, said Powers isn’t a journalist and should have to testify.

"As a blogger, he’s not a journalist," Tornow said. "The information we’re asking for is not from confidential sources. We believe he has information… as to the investigation (into Willard)."

Foley delivered a mixed ruling.

"I am of the opinion that… bloggers in their vein are journalists in the modern sense of the word," Foley said.

But Foley refused Arends’ request to lift the order requiring Powers to attend and testify.

Instead, Powers’ testimony will be reviewed by Foley in private, where the judge will decide whether the jury should hear it. During this meeting, Arends, Tornow and prosecutor Brent Kempema will all be present.

The same judgement was applied to Lederman, who also asked Foley to be excused from testifying. Arends argued Willard wanted Lederman to testify under oath in the hopes of getting information to use in Lederman’s civil lawsuit, a charge Tornow denied. Foley ruled Lederman had to testify but that his information would be reviewed in private before the jury hears it.

Willard’s trial begins Tuesday morning. A jury of Lake County residents was chosen Monday afternoon after a two-hour process that highlighted the political nature of the trial.

Prospective jurors were asked about their connections to Russ Olson, a state senator from near Madison who filed the complaint about the robocalls, whether they would be swayed if they knew the governor had expressed an opinion on the topic, and how they feel about robocalls.

Tornow pressed jurors about how closely they had followed news reports about Willard, and in particular about whether they had read about the issue on two blogs: Powers’, and the liberal “Madville Times” blog run by former Madison resident Cory Heidelberger.

Two prominent local residents were among the jury pool: Madison Central School District superintendent Vince Schaefer, and Lake County commissioner Scott Pedersen. Both were dismissed from the jury, Pedersen after telling Tornow he had read about Willard on Madville Times.

The trial is scheduled to last all week, starting with opening arguments at 9 a.m. Tuesday.

Stace Nelson added to robocall lawsuit

My colleague John Hult went to court today, to see state Rep. Stace Nelson get sued by one of his colleagues in the Legislature.

Nelson, a potential U.S. Senate candidate, was added as a defendant to state Sen. Dan Lederman’s robocall lawsuit over last year’s robocalls.

The lawsuit also targets conservative activist Daniel Willard and a number of unnamed “John Does.”

Nelson is accused of being behind the robocalls, which Lederman alleges are illegal.

The Lederman lawsuit is distinct from the criminal charges against Willard related to those same robocalls. As of today, Nelson has not been charged criminally in the matter.

Nelson told Hult he views Lederman and his lawyer as “proxies for the (Mike) Rounds and (Dennis) Daugaard folks.”

“Disgusted does not sum up my feelings on this,” Nelson said. “No matter how much of this Chicago-style politics they bring, I will continue to represent the people of my district, and it will not deter me if I decide to run for the U.S. Senate.”

Read the full story here.

Judge skeptical of Lederman lawsuit, but grants delay (updated)

A state senator might not be legally allowed to sue over campaign finance violations, a judge suggested Monday.

Considering a lawsuit filed by state Sen. Dan Lederman against people allegedly behind 2012 political robocalls, state circuit court judge Stuart Tiede said it seemed only the secretary of state or prosecutors could use the courts to enforce election law.

"This is not the attorney general bringing an action on behalf of the secretary of state to enforce campaign finance laws," Tiede said of Lederman’s lawsuit. "This is a private individual, essentially becoming a private attorney general to enforce campaign finance laws."

Lederman had filed a lawsuit last year after anonymous robocalls attacked Republican legislative leaders, asking a judge to declare that the robocall senders had violated state law.

Months later, Attorney General Marty Jackley announced criminal charges against a conservative activist, Daniel Willard, for allegedly sending the robocalls.

That criminal case is on hold after a change in judges, but the civil case is moving forward — for now.

Tiede, considering a motion from Willard’s attorney R. Shawn Tornow to dismiss Lederman’s lawsuit, peppered Lederman’s attorney Joel Arends with skeptical questions in Monday’s hearing.

Tornow also argued Lederman’s lawsuit should be dismissed because the state Legislature, in response to the 2012 robocalls, this year amended the very campaign finance laws Willard is accused of violating.

Afterwards, Arends said he’s confident in his case, but is planning a next step — a new claim filed under the federal Telecommunications Consumer Protection Act, rather than South Dakota campaign finance laws.

"At the end of the day, we still believe that Lederman and (his political action committee) have standing in the case," Arends said. "The judge may not agree with that. We may not get a favorable ruling out of him this time. But… we’re moving in the direction of Telecommunications Consumer Protection Act violations."

Tornow said he was “pleased the judge seemed to indicate that he, too, had significant concerns,” but said he was “troubled” by the report Lederman might file a new complaint.

"At what point do they stop chasing their own tail?" he said.

Last week, Arends had filed an affidavit, based on an interview he had conducted with Gary Dykstra of Sioux Falls. In the affidavit, Arends described Dykstra’s comments, which implicated both Willard and state Rep. Stace Nelson in the robocalls.

On Monday, Tiede said he had “several concerns” about that affidavit, which he said probably “contains inadmissable hearsay.” But Arends withdrew the affidavit and filed instead a transcript of the Dykstra interview and an affidavit from Dykstra attesting to the transcript’s accuracy.

Those documents were not available Monday.

After an hour of arguments, Tiede didn’t rule on the motion from Willard’s attorney R. Shawn Tornow to dismiss the case. He gave Arends extra time to file new evidence, and will reconsider the motion in the future.

Copyright © 2011 www.argusleader.com. All rights reserved.
Users of this site agree to the Terms of Service, Privacy Notice/Your California Privacy Rights, and Ad Choices