Political Smokeout

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.

GOP lawmakers turn spotlight back on 2009 Johnson nomination

Republicans have made it clear for some time that if U.S. Attorney Brendan Johnson runs for Senate, one of their lines of attack on him will be nepotism — attacking him for trying to succeed his father Tim Johnson in the Senate.

Now, as speculation mounts about if and when Johnson will declare his candidacy, a group of Republican state legislators are reviving some 2009 accusations concerning Johnson’s ties to his father.

State Sen. Dan Lederman and 9 other lawmakers have sent an official letter to the Senate ethics committee, requesting an investigation into possible impropriety collected to Johnson’s 2009 nomination as U.S. Attorney.

The letter rehashes accusations made at the time, that Tim Johnson had improperly influenced the nomination and confirmation of his son. Tim Johnson has denied the claims.

Lederman denied that the letter had anything to do with the rumors that Johnson will run for Senate, but the letter does return the issue to the public eye as political watchers wait to see what Johnson will do.

“This is about getting the right answers, and having the people in charge of this to do their job,” Lederman said.

Lederman’s letter says “recent news reports” suggested the impropriety. The only example he cited in the letter and in an interview was a Politico story about Republican plans to attack Johnson on the nepotism charge, which briefly revisited the 2009 incident.

There are no accusations of wrongdoing more recent than 2009 in the letter.

Read his letter here.

(h/t South Dakota War College)

School sentinels bill passes committee 5-4

A proposal to let schools arm volunteer “sentinels” to protect against threats is on its way to the South Dakota Senate.

The school sentinels bill, House Bill 1087, passed a key Senate committee 5-4 Friday, and needs only approval from the Senate to head to Gov. Dennis Daugaard to be signed into law.

Under the proposal, school boards could vote to arm sentinels provided local law enforcement approved and the sentinels underwent training with the state.

Rural schools, located far from local law enforcement and without police resource officers, want the proposal’s flexibility, advocates said.

“If we think we’re immune in South Dakota from school violence, we should probably think again,” said Sen. Craig Tieszen, R-Rapid City. “Our local school officials and local school boards need to be making a decision about the security of their schools.”

Rep. Scott Craig, R-Rapid City, and other supporters emphasized the local control.

“For the schools that do not want ever to have anybody armed… they should want this bill,” Craig said. “It is this bill that guarantees that they make the decision to never have anyone armed.”

But what Sen. Larry Lucas called “the (key) issue of the 2013 legislative session” has plenty of opponents. Most major school groups testified in opposition, saying the sentinels program was risky and unwanted.

Jeff Marlette, a general in the South Dakota National Guard and the superintendent of the New Underwood School District, lamented that South Dakotans would now ask if “our state has gotten so bad and so dangerous and so unsafe that we must now attend school in an armed fortress.”

Lobbyists for the state’s school boards and school administrators proposed an alternative, to set up a task force studying school security. If that task force recommended school sentinels, they said, they could support it, but saw the current proposal as too rushed.

“This amendment would give you another option to talk about school safety,” said Wade Pogany, executive director of the Associated School Boards of South Dakota. “Let’s put a task force together that’s made up of these stakeholders and bring recommendations so school boards could have options to look at.”

But the committee rejected that amendment, with members questioning whether such a task force would produce new mandates and objecting to the last-minute nature of the proposal.

The Senate committee did make several changes to the proposal, notably removing a section added in the House that kept decisions about the sentinels program secret.

Tieszen, the prime sponsor of the bill, endorsed that change.

“This must be a publicly made decision,” Tieszen said.

Rep. Hal Wick, R-Sioux Falls, supports keeping the decision private. He said it would keep would-be attackers in the dark about which schools were and were not defended, and thus provide more protection to everyone.

Once a district has adopted a sentinels program, decisions about it — such as which people were armed — could be made behind closed doors.

Another change might be coming in the full Senate. Sen. Larry Rhoden, R-Union Center, said he’s interested in specifying that voters can refer a decision to create a sentinels program to a public election.

Senate passage isn’t assured, with many lawmakers skeptical. Sen. Jason Frerichs, D-Wilmot, suggested the sentinels bill wasn’t necessary because volunteers could be deputized by their local sheriff to defend the school.

Sen. Corey Brown, R-Gettysburg, said he likes the concept but has too many unanswered questions.

“If we’re going to do something like this, I need to feel more than reasonably confident that we’ve covered all our bases,” Brown said.

But supporters said the sentinels program is both needed and well-thought-out.

“I don’t think anyone has promoted this as the ultimate solution to the problem we face,” said Rhoden. “But it is a step.”

Sen. Dan Lederman, R-Dakota Dunes, said it was a good proposal that keeps decisions with local government.

“What I like about this bill is its permissive nature,” Lederman said. “This bill will maximize local control.”

Sen. Russell Olson, R-Wentworth, lambasted schools for opposing the local option.

“Do you just want the softballs? Do you just want the easy decisions?” he asked school representatives. “When it gets tough should it come back to the Legislature? Make up your mind.”

The Senate must take action on the sentinels bill by March 5, though it has yet to be scheduled for debate. Because the Senate has amended the version passed by the House earlier this month, the House would then get another vote, to either approve the Senate version or try to negotiate a compromise.

Craig said House members will likely be divided on whether removing the secrecy provision is a good move.

If the Legislature approves the sentinels bill, it will head to Gov. Dennis Daugaard, who likes the concept and is studying the proposal’s specific details.

How will Senate State Affairs vote on ‘sentinels’?

Earlier, I speculated about what the decision to send the school sentinels bill to the State Affairs committee instead of the Education committee meant for its fate.

Yesterday, I did something better: I checked on each of the members to see what they thought about it.

A few of them were on the record with opinions about the bill; those who weren’t, I called.

You can read more about the state of the sentinels bill here.

Here’s where things stand now with the Senate State Affairs Committee:

• Brown: Undecided. Doesn’t have a problem with the “concept” but is “struggling” with a few components of the bill.
• Frerichs: Doesn’t ”support the bill in its current form,” would need “to change it pretty drastically” to vote for it.
• Johnston: Has called the sentinels bill premature, saying other discussions of school security needs to come first.
• Lederman: A sponsor of the bill, has spoken critically of making schools gun-free zones.
• Lucas: Is “not going to support it.”
• Olson: Supportive as long as it maintains its local control.
• Rave: Leaning toward supporting the bill, but is “well aware of the concerns” and could change his mind.
• Rhoden: Supportive; believes the state should “let the local governing body make the decision for themselves.”
• Tieszen: Prime sponsor of the bill, has testified for it.

Taking a bit of a leap (some of these statements have been more decisive and clear than others), I’d categorize the committee like this:

Yes votes (4): Lederman, Olson, Rhoden, Tieszen

No votes (3): Frerichs, Johnston, Lucas

Undecided (2): Brown, Rave

With nine members on the committee, the bill needs five votes to pass, and is already one short. If either Brown or Rave votes yes, or one of the no votes changes their mind (without any yes votes flipping), House Bill 1087 will probably pass out of committee.

‘Shared parenting’ defeated in Senate, compromise sought for next year

Fresh off a defeat in the South Dakota Senate, advocates of “shared parenting” plan to reach out to opponents and try to find a compromise on the hot-button issue before next year’s legislative session.

A bill that would have made joint physical custody of children the default in divorce cases was defeated Thursday after opponents argued it would hurt children.

“If we pass this today, we’re going away from what’s in the best interests of the child, and we’re starting to go back the other way to what’s in the best interests of the parents,” said Sen. Mike Vehle, R-Mitchell.

Currently, judges can order joint physical custody of children if he or she determines it’s in the best interests of the child. Critics said that was enough, while advocates for shared parenting said the law should encourage both parents to stay in their children’s lives.

“If there is a disagreement, why do we automatically assume we’re going to exclude that one parent from their child’s life, except for a few days a month?” said Sen. Phyllis Heineman, R-Sioux Falls.

But despite emails from hundreds of shared parenting advocates around the state, the Senate rejected the shared parenting bill, Senate Bill 125, by a 21-13 vote.

Sen. Dan Lederman, R-Dakota Dunes, said he believes a compromise can be reached to satisfy some of the objections.

“I think we could modify parts of the bill to make it more acceptable to members of the Senate and Legislature,” Lederman said after the vote. “I hope to have those discussions with the main opponents outside of session to find some type of legislation we can all agree on.”

Those differences include disagreements about what’s actually best for children. 

Opponents of shared parenting emphasize the differences in situations for families, and say courts shouldn’t presume any one outcome is going to be generally best.

“The process we have currently in place, it treats each child as a case-by-case,” said Sen. Jean Hunhoff, R-Yankton. “If we want to generalize and put everyone in the average and start at 50-50 (custody), we’ve lost that important value.”

But shared parenting supporters said having both parents involved in a child’s life is important enough to make that the presumption.

“We assume in a marriage that raising children is a 50-50 responsibility and a blessing,” said Heineman. “Why in a divorce… do we automatically determine this shared mission is over?”

There were some areas of agreement. Both sides said shared parenting could work well and be the best outcome. Where they disagreed was on how often it works and how much to encourage it. Opponents said it works when the divorcing couple gets along and works together to share parenting responsibilities — but not when that good will isn’t there. Supporters said even parents who are forced into shared parenting by a judge will often produce better outcomes for the children than one parent having primary custody.

If SB 125 had passed, judges wouldn’t have been forced to rule in favor of shared parenting. Parents who came to agreements outside the courtroom could do what they wanted, and in the courtroom parents could persuade the judge to order sole custody. But the burden would be on parents opposed to shared parenting to make that case, instead of on a parent advocating for shared custody.

Shared parenting bill passes Senate committee

Divorce can be very contentious, and the South Dakota Legislature is no exception.

After passionate testimony from both sides, a divided Senate committee narrowly approved a “shared parenting” bill that makes joint physical custody of children the standard in South Dakota.

Advocates say the current law, which permits divorcing parents to share physical custody of their children but only when a judge determines it to be “in the best interests of the child,” lead to willing parents being kept out of the lives of their children.

“When you place a child in the primary physical custody of one parent, you’re limiting the other parent’s ability to play a meaningful role in that child’s life,” said Wade Fischer, a Pierre attorney.

If Senate Bill 125 passes, equal-time custody between parents would be the standard. Rather than having to prove that shared parenting should be ordered, it would be up to dissenting parents to prove that it shouldn’t be ordered.

A long line of advocates testified Monday in personal and emotional terms about their own experience with divorce and success with shared parenting. 

One woman told the Senate State Affairs Committee that she had originally pushed to keep her children in her divorce, before realizing she was being selfish and agreeing to share custody with her ex-husband.

Another warned lawmakers that South Dakota’s “children are losing their fathers.”

Casey Wilson, of Flandreau, said two weekends per month is not “enough time to be a good parent.”

Opposed to the bill were a number of family practice attorneys and an advocacy group, who worried SB 125 would create more problems than it solves.

Linda Lea Viken, of Rapid City, said “shared parenting can be very good for children” — but only if the parents agree.

This bill, Viken argued, would lead to shared parenting being imposed in cases where that wasn’t the best outcome for the children.

Other opponents objected to applying some standard other than the current “best interests of the child” in determining custody.

“Senate Bill 125 puts children in the middle of warring parents,” said Debra Watson, of Rapid City.

Viken and Watson said the law would lead to more divorces fought in court instead of settlements because it would force spouses who objected to shared parenting to challenge that before a judge.

Fischer, in response, said the bill was reasonable because it allowed the presumption of shared parenting to be challenged and overturned by parents who objected.

Similar shared parenting bills have been brought forward in past years, never becoming law. Supporters weren’t confident on Monday that the bill would make it out of committee. But a slim majority of lawmakers voted yes, approving SB 125 by a 5-4 vote.

Sen. Dan Lederman, R-Dakota Dunes and a member of the committee, said the bill seemed like a necessary update of South Dakota’s long-standing divorce law.

“I think we’re living in the 1970s with our custody laws,” Lederman said.

The measure now heads to the full Senate for consideration.

SD legislators say no to making silver and gold coins ‘legal tender’

Warnings about “hyperinflation” didn’t persuade South Dakota legislators to endorse the use of gold and silver coins on Wednesday.

Rep. Dan Kaiser, R-Aberdeen, had asked the Legislature to declare U.S.-minted gold and silver coins to be “legal tender” that could be used to pay state taxes at their market value.

“Within the borders of South Dakota, for our intra-state commerce, we are going to reserve the right for our citizens to use gold and silver as currency, especially in some case of emergency, if the U.S. dollar is no longer trustworthy as a source of currency,” Kaiser said.

The bill, House Bill 1100, left it optional for private businesses to choose whether to accept gold and silver coins, but said the metallic currency “may be used… in satisfaction of any tax.”

The state Department of Revenue opposed the bill, saying it would cause serious complications for state operations.

Chief among the objections of David Wiest, a deputy secretary of the department, was the case of a coin that had different face values and market values.

“If you have a $5 gold coin, and you go to the store… and the gold coin has an intrinsic value of $50, the merchant is supposed to accept the $5 gold coin for its $50 intrinsic value,” Wiest said.

The bank in which the state keeps its money told him “we don’t want to deal with” the value of gold and silver coins, Wiest said.

Supporters of HB 1100 repeatedly criticized the current U.S. dollar, whose value is maintained by the Federal Reserve rather than tied to a commodity.

“When we have a chairman of the Federal Reserve who contradicts the Constitution by saying that gold is not money… it is time for us to question the Reserve and make up our own laws,” said Sen. Dan Lederman, R-Dakota Dunes.

Lederman cast HB 1100 as a minor measure that wouldn’t have much effect — but one that laid the groundwork for future monetary reforms.

“To be honest with you, I think this is just the first step,” he said. “I really would like to see us return to using commodities as the value of the dollar, tying the dollar to the real world, not policies set by the Federal Reserve.”

Skeptics on the House Commerce and Energy Committee pointed to the fluctuating value of gold and silver in past decades.

A majority of the committee’s members rejected the pro-gold arguments.

Rep. Jim Peterson, D-Revillo, cast HB 1100 as a “political statement” about state’s rights that could get South Dakota sued.

Rep. Kristin Conzet, R-Rapid City, said she had “too many questions and not enough answers” about the proposal, and worried it would force “merchants to be experts in gold and silver.”

Disagreeing, Rep. Stace Nelson, R-Fulton, argued that “fiat currency” not tied to the value of a commodity was bound to collapse.

But he ended up in the minority. HB 1100 was killed 9-4.

After the vote, Kaiser, a first-year lawmaker, said he was going to focus on researching the issue to better address criticism next year.

Rep. Dan Kaiser, R-Aberdeen.

Executive session minutes bill fails 4-3

A perennial open government issue in South Dakota, the taking of records during public bodies’ closed sessions, failed narrowly in a Senate committee Wednesday.

The measure, Senate Bill 167, would have required public boards to take notes and audio recordings when meeting behind closed doors to discuss legal, personnel or other private matters. It provided for how a judge could then release those recordings if there were legal action concerning that closed discussion.

Supporters said the measure would help make boards more effective, and protect them if they were falsely accused of breaking open meetings laws.

“If we were sued, there’s no better evidence than to be able to pull the tape out and show the public that our intent was for the best, and that we did things right,” said Sen. Dan Lederman, R-Dakota Dunes.

Other supporters were Sen. Al Novstrup, R-Aberdeen, and Rapid City Mayor Sam Kooiker.

Opponents included representatives of the Sioux Falls School District, the organizations representing the state’s cities, school boards and towns and townships.

They argued there was no need for this bill, which they said could curtain discussion of sensitive matters and open bodies up for lawsuits.

“The very time you need to have open discussions… they’re going to pull back because of that tape recorder,” said Wade Pogany, executive director of the Associated School Boards of South Dakota.

Though several members of the Senate Local Government Committee pronounced themselves torn on the issue, a majority ultimately voted against passing the bill.

Sens. Craig Tieszen, Deb Soholt, Chuck Welke and Jean Hunhoff voted against recording executive sessions. Sens. Lederman, Ried Holien and Mark Kirkeby voted in favor.

Adelstein’s first secretary of state reform bill dies

The Senate State Affairs Committee killed a proposal to bar political activity by employees of the secretary of state’s office.

Sen. Stan Adelstein, R-Rapid City, had proposed banning the secretary of state or any employees of that office who oversee elections from endorsing, supporting or advising any candidates for political office.

He said he modeled his bill on the federal Hatch Act, which prevents most federal employees from engaging in partisan political activity.

But the committee voted 7-2 to kill his bill, saying they saw this as a question of ethics for those employees but not something that should be legislated.

Sen. Dan Lederman and Sen. Craig Tieszen, both Republicans, voted for Adelstein’s bill.

A second reform proposed by Adelstein, making the secretary of state a nonpartisan position, will be heard by the committee at a later date. Adelstein said he’s preparing amendments to the bill.