The South Dakota House approved a useful amendment to our open meetings laws yesterday. My Representative Al Novstrup (R-3/Aberdeen) brought House Bill 1153 to include "text colloquy" in the definition of "teleconference". Under HB 1153, e-mails, text messages, chat room messages, and other such electronic communications among members of any public body become public record, to be made available to the public during the meeting and kept on file for at least one year following the meeting, if those communications involve a quorum of that public body and discuss official business.

Majority leader Rep. Brian Gosch (R-32/Rapid City) led the 22 Republicans who opposed House Bill 1153. He fretted that investigators could riffle through elected officials texts and e-mails. I would suggest to Rep. Gosch a simple solution: use one official e-mail account exclusively for public business, and don't communicate with fellow members of the body to which you are elected on your personal e-mail or phone. I would also suggest Rep. Gosch not worry: Rep. Novstrup's record on last year's EB-5 investigation shows he's not really interested in serious investigations of elected officials.

Joining Rep. Gosch in resisting open records was Rep. Tim Rounds (R-24/Pierre), brother of U.S. Senator Mike Rounds. That family's resistance to making e-mails and other official communications public is entirely understandable. But now that the EB-5 coast seems clear, the Governor and AG Jackley support this bill.

House Bill 1153 now heads for the Senate.

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Four bills aimed at reducing or eliminating the use of the death penalty in South Dakota await our Legislature's attention:

  1. Senate Bill 121 would repeal the death penalty in all future cases.
  2. SB 122 would continge issuance of a death sentence on "a finding that the defendant is too dangerous to be incarcerated and is an ongoing danger to the public and the prison community."
  3. House Bill 1158 would require that evidence that the victim or victim's family opposed the death penalty be presented at the presentence hearing in any capital case.
  4. HB 1159 would create a database of citizens who would declare, "Should I die as a result of a violent crime, it is my wish that no person found guilty of homicide for my killing be subject to a death sentence." Citizens would register themselves in this database on their driver's license applications.

If you're looking for support for those bills, don't look to the six legislators who appeared at Aberdeen's crackerbarrel on Saturday. None committed to support any of those bills. The lone Democrat on the panel, District 1 Senator Jason Frerichs of Wilmot, hinted that he might support SB 122, the added sentencing guideline, since one of the sponsors, rookie Senator Arthur Rusch (R-17/Vermillion), sentenced Donald Moeller to death in 1997, but Sen. Frerichs only said he hopes SB 122 comes to the floor for debate. His comments make clear that even he believes we should kill some criminals.

Senator Brock Greenfield (R-2/Clark) said he can't find any Biblical reason not to kill criminals. His mom, Rep. Lana Greenfield (R-2/Doland) vaguely referenced Barabbas but said it's o.k. to kill criminals who brag about enjoying prison (no, really, that's the story she told!). Senator David Novstrup (R-3/Aberdeen) said he voted against last year's death penalty repeal but doesn't know how he'll vote this year. His dad, Rep. Al Novstrup (R-3/Aberdeen), misrepresented SB 122 as a ban on the death penalty, then invoked the Charlie Hebdo killings and the Chester Poage murder (for the record, Al, even I, who was outraged at the jihadis who killed the French cartoonists, would rather those killers had been put in prison, not killed) to justify his position "not that I support the death penalty, but I support the opportunity for the death penalty." Preferring clarity and brevity, Rep. Dan Kaiser (R-3/Aberdeen) said he'll vote against these bills.

Here are the full remarks. The speakers, in order, are Sen. Greenfield, Sen. Frerichs, Sen. Novstrup, Rep. Novstrup, Rep. Greenfield, and Rep. Kaiser.

Notice that three of the speakers—the Greenfields and the younger Novstrup—wrung their hands over the difficult, emotional nature of votes on the death penalty. Get a grip, Brock, Lana, and David. This is government, not Dr. Phil. We understand you face all sorts of hard decisions. That's what we pay you the big bucks to do.

Rep. Dan Kaiser is wrong, but I at least respect him for sparing us the emotional showing-off and simply stating his policy position. Similarly, Senator Frerichs is hedging, but he at least focused on a direct discussion of the policy, not his personal emotions.

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In mostly fluffy opening comments at Saturday's Aberdeen crackerbarrel, Rep. Al Novstrup (R-3/Aberdeen) took issue with Thursday's Aberdeen American News editorial, which declared that the South Dakota Legislature wastes time and money with some bills.

Well, at least he acknowledges that Senator Brock Greenfield (R-2/Clark) has some bad ideas

Rep. Novstrup makes it sound like his local paper is telling him he shouldn't listen to certain bills in committee. Rep. Novstrup needs to work on his reading comprehension. The Aberdeen editors say Rep. Novstrup and his colleagues shouldn't file such time-wasters in the first place. Among the time-wasters, the editors identify numerous pieces of legislation sponsored by Novstrup and his local colleagues. Those with Novstrup's name on them include the following:

  1. HJR 1001, calling for a Constitutional Convention to write a balanced budget amendment. The Aberdeen editors call a convention "a waste of time and energy."
  2. HCR 1004, asking for the Supreme Court to revisit Roe v. Wade, which the editors say is unlikely to happen, especially not at the request of a Legislature with no power over the court.
  3. HB 1094, the Legislature's effort to unravel the cost-of-living adjustment voters included in last year's successful minimum-wage initiated measure. The editors say this bill "could be considered insulting by voters."

Don't be fooled by Rep. Novstrup's rhetoric about putting in extra hours to do the people's business. A lot of the extra hours he spends in Pierre come because he files bills and resolutions that do his party's business, not the people's business. We wouldn't have to drag out those committee hearings (and limit debate on important bills) if Rep. Novstrup and others didn't clutter the agenda with their partisan time-wasters.

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With Republicans Al Novstrup and Dan Kaiser victorious in the District 3 House race, we will not have the opportunity to test aspiring assistant majority leader Lee Schoenbeck's determination to veto the will of the people and refuse Democrat Burt Elliott a seat in the State House. 3,404 District 3 voters were undeterred by the well-publicized fact that Elliott only rents a basement in District 3 and likely keeps his main underwear drawer in District 2, but that wasn't enough to beat Kaiser's 3,709 or Novstrup's 3,931. (Fellow Democrat Pat Hale drew 2,778 votes.)

The voters have spared Elliott Schoenbeck's wrath, but perhaps not Marty Jackley's:

Brown County State's Attorney Larry Lovrien said Brown County is not looking into the matter, but it's his understanding that Secretary of State Jason Gant has asked Attorney General Marty Jackley to investigate the matter.

"It's the function of the attorney general to look into these things," Lovrien said.

At issue is a sworn statement signed by Elliott on his petition that says he is a resident of the district in which he is sought election. Lovrien said if that sworn statement is false, that's perjury, which is a felony offense [Elisa Sand, "AG Reportedly Asked to Look into Elliott Residency," Aberdeen American News, 2014.11.05].

Strangely, the AG's office says it knows nothing about any residency complaint:

Sara Raburn of the attorney general’s office said she checked with a couple of individuals within the office on Wednesday, and that they did not know anything about an investigation into Elliott’s residency [Elisa Sand, "South Dakota Attorney General Has Yet to Be Asked to Investigate Burt Elliott Residency," Aberdeen American News, 2014.11.06].

Demonstrating that he was more interested in electioneering than law, Representative-Elect Novstrup, who beat the drum hard against Elliott's fictitious residency during the campaign, tells Sand he suddenly "doesn't have an opinion" on the Elliott residency question:

“It’s completely out of my hands,” Novstrup said, passing on that determination to the Brown County’s state’s attorney or the attorney general’s office [Sand, 2014.11.06].

Perhaps Novstrup just wants to let bygones be bygones. Elliott says he thinks his election loss moots the question.

Elliott is mistaken. As we know from the Annette Bosworth and Clayton Walker cases, oaths matter. Petitions matter. Honest voter registration matters. If the Attorney General determines that any citizen has sworn a false statement, the Attorney General should hold that individual accountable.

But remember, the case Republicans have made against Elliott for perjury rests on this one sentence to which every South Dakota voter swears on the voter registration form:

I actually live at and have no present intention of leaving the above address.

If Attorney General Jackley decides that Elliott has committed perjury by declaring that he "actually lives" at his District 3 address, then Attorney General Jackley will find himself obliged to prosecute some 1,700 "residents" of 110 East Center Street, Madison, South Dakota, 57042 of perjury. That's about how many traveling RV owners have registered to vote at MyDakotaAddress.com. Not one of them "actually lives" at 110 East Center. The same will be true for thousands of other RVers registered at similar addresses in Hanson, Minnehaha, and Pennington counties.

AG Jackley, Republicans, are you ready to unleash that torrent of litigation?

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Hey, Burt Elliott! Pat Hale! You're paying attention to this letter to the editor in the Aberdeen paper, right?

Ed Fischbach of Mellette notes that Senator Al Novstrup (R-3/Aberdeen) was all about open records when the James River Water Development District stonewalled him. Fischbach thus finds it puzzling that Novstrup, who is now running for District 3 House, isn't fighting to open records in the EB-5 scandal:

Now there is an EB-5 scandal that is bigger than life in his own legislative district, and we don't hear a peep out of him. The EB-5 scandal has no-bid contracts, no open records, no accountability, pending lawsuits against the state involving upwards of $147 million, and he says nothing. The handling of EB-5 money in this state has everything that Sen. Novstrup complained about when he went after James River Water District and more, but this open government and open records legislator is now silent.

You won an award, Sen. Novstrup, so start demanding records and accountability from Mike Rounds, Dennis Daugaard and other state officials just like you did from James River Water District. Or, return your award [Ed Fischbach, letter to the editor, Abderdeen American News, 2014.09.21

Senator Novstrup hasn't been entirely silent on the EB-5 scandal. Last December, he agreed with the need to look into affairs in the Governor's Office of Economic Development, but he didn't sound terribly eager to do so, or to expand the scope of any investigation to look into local EB-5 failure Northern Beef Packers:

...[T]o Sen. Al Novstrup, R-Aberdeen, seeking a special session less than three weeks before the start of the regular session seems like a waste of money. If it’s needed, extra digging can be called for once the session begins in January.

One thing the state doesn’t have the authority to do is scour the finances of Northern Beef. It’s a private company, and even if there were fraud, the Legislature wouldn’t have that power, he said.

With EB-5 being a federal program, it seems appropriate that Johnson, a federal prosecutor, is looking into what happened, Al Novstrup said. But, he said, the Legislature can take a look at whether the state’s contract with the SDRC to do EB-5 work was properly followed. If it wasn’t, there might be penalties the state can impose, he said [Scott Waltman, "More Answers Wanted: Area Lawmakers Call for More Investigation of State Economic Development Efforts," Aberdeen American News, 2013.12.15].

Open-records crusader Novstrup certainly isn't among those calling now for Novstrup's neighbor Joop Bollen to testify under oath about his questionable profiteering as the state employee in charge of EB-5 from 2004 to 2009.

Elliott, Hale, Tornberg, Nelson, Page, Nordstrom, this is how you tune the EB-5 scandal to your local legislative races. Ask your Republican incumbents why they aren't fighting for more answers about a scandal that may have cost this state more than Mike Rounds's structural deficit. Ask your Republican incumbents why they aren't asking who knew what was happening in the Governor's Office of Economic Development and when they knew it. Don't let them hide behind their reheated stammerings of "But EB-5 is federal!" Legislators' willingness to investigate or ignore the apparent corruption in our state's economic development program raises a fundamental question of character that every candidate should answer this fall.

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Four Legislators listened to teachers yesterday, and four was enough. Senator Al Novstrup brought his loathing of public school teachers to Senate Education yesterday in the form of Senate Bill 187, his proposal to end the due process right of continuing contract for all teachers in South Dakota. Novstrup's was another GOP local-control sham. SB 187 wouldn't put Novstrup's fingerprints on the gun; it would simply hand the gun to local school boards and let them opt out of continuing contract. Given that the powerful Sioux Falls School Board wouldn't oppose this bad bill, teachers everywhere should fear for their due process rights.

Senator Novstrup's bill has nothing to do with improving education; if anything, continuing contract produces correlates with better educational outcomes. SB 187 comes from ideology, not practical ideas for helping teachers help your kids learn more.

Fortunately, Senator Novstrup found himself alone at the mic yesterday to promote his bad idea. SDEA sent a rep to Senate Education testify against SB 187. Watertown teacher Steve O'Brien came to explain the importance of continuing contract. Two teachers-turned-legislators, Rep. Paula Hawks and Sen. Chuck Welke, took time out of their busy legislative schedules to urge their colleagues to vote this bill down.

The bad news is that, with every educator's voice in the room saying, "Don't do it!" three Republican senators (Ryan Maher, Tim Rave, and Phil Jensen) still ignored the experts and voted to do it. The good news is that, this time, good sense had them outnumbered. Three other Republicans (Deb Soholt, Bruce Rampleberg, and J. Mark Johnston) joined one Democrat (Angie Buhl) in voting SB 187 down.

Fellow educators and sensible senators, thank for your votes to protect what little labor protection South Dakota teachers have.

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House Bill 1217, the coercive counseling abortion measure awaiting the governor's signature, is so poorly written, so obviously overturnable by any court in the land on HIPAA violations and separation of church and state, that I'm starting to think it's just a ploy to divert our attention from the budget negotiations. Alas, it's working this morning.

Senator Al Novstrup demonstrated Saturday that he lives in an alternate universe. The prime Senate sponsor of HB 1217 made the following comment at a crackerbarrel in Aberdeen Saturday:

"It's a small bill.... Drive across town, spend a few minutes with a counselor, wait 72 hours [Sen. Al Novstrup (R-3/Aberdeen), quoted in J.J. Perry, "Lawmakers Debate Education, Taxes at Final Crackerbarrel," Aberdeen American News, 2011.03.06].

Senator Novstrup's statement is either specious or stupid. Perhaps Senator Novstrup simply takes too literally the idea that South Dakota is just one big small town. Or perhaps the Senator is imagining that women from Sissteton, Aberdeen, and Mobridge will drive to Sioux Falls, visit the doctor, then drive across town to be browbeaten by Leslee Unruh's uncertified Christian volunteers, then rent a motel room for three nights so they can just drive back across town to the doctor for the abortion, and that all expense and time off work and away from family is a small matter.

Senator Novstrup has already cast his vote, but when you get done contacting Governor Daugaard's office to urge a veto, you might want to take time to contact Senator Novstrup to set him straight on the true import of his unconstitutional and misogynist legislation... as well as how far a drive it is from Pine Ridge to Sioux Falls.

Bonus Republican Hypocrisy: Senator Novstrup is profoundly concerned about manufacturing the concept of Constitutional protection for a mother's right to a relationship with her child. Meanwhile, Senator Nostrup has backed legislation (HB 1088, HCR 1004) that makes it harder for this Mellette teenager to preserve her relationship with her mother---i.e., to not die from a rare disease---without being bankrupted by medical bills.

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The Aberdeen American News reports on a community meeting Thursday night where district officials laid out plans for dealing with the impending budget cuts from Pierre. I hear from someone who was there that 150 people were in attendance (when's the last time you saw that many people come to talk about a school budget four months out from passage?). When asked to stand to indicate whether they would support a one-cent sales tax to fund education and avoid such cuts, everyone in the room stood up... except for Senator Al Novstrup (R-3/Aberdeen). Novstrup said he support balancing the budget and will probably vote for the governor's plan.

Now it's one thing for a legislator to look a roomful of people in the eye and say, "You're wrong, that's bad policy, and I can't support it." But that's not what I'm hearing from legislators like Senate Majority Leader Russell Olson (R-8/Wentworth). Senator Olson apparently still believes that he can't vote for a tax increase because none of his constituents want a tax increase. That's not an evaluation of the policy; that's a mistaken evaluation of the political implications of voting for the policy. In the echo-chamber minds of too mnay legislators, it is apparently better to put a bunch of those good-for-nothing teachers out of work than to risk an imaginary backlash from an electorate that they think all attends Tea Parties. (Reminder: the only objective data we have says 73% of voters who think of the Tea "Party" as a good thing also support a sales tax increase for education.)

Of course, I might be coddling my own soothing worldview by telling myself that our Republican legislators lack the intellect and courage to overcome their campaign slogans and support the tax increase people want. Perhaps there is a simpler explanation than widespread stupidity and disconnection from reality for our legislators' intransigence. Perhaps our legislators' bullheadedness comes from another source: that second-floor office in the Capitol.

Governor Dennis Daugaard has laid out the budget plan. 10% cuts, no new taxes. Permanent diversion of money from the general fund to corporate handouts. Maybe an occasional extension of existing taxes. But no, no, no extra sales tax, even if the people want it. Those are the governor's orders, even if those cuts kill three times as many jobs as the tax increase.

And almost every Republican legislator is saying, "Yes, sir!"

Ha! And you thought your legislator worked for you. No, no, no. Governor Daugaard is the alpha male, and his barking dogs know it.

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