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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I mentioned earlier the three bills that House State Affairs passed yesterday to put more money in legislators' pockets. I'd like to focus for a moment on House Bill 1145 and the stretchy arguments offered by its sponsor, Rep. Brian Gosch (R-32/Rapid City).

HB 1145, which drew no questions and no opposition in committee Wednesday, would give legislators the per diem reimbursement, $123, for attending the Governor's budget report in December and the inauguration of constitutional officers in January. In his testimony before committee, Rep. Gosch said legislators are currently spending their own resources to do their jobs and that reimbursing them for taking off work and traveling to these two events would be appropriate.

I agree that we should pay for legislators' time and expenses when they are doing the people's work as required by law. But Rep. Gosch made a couple of statements that seemed to exaggerate the requirements under which he and his colleagues labor. He opened his remarks by claiming, "I've learned recently that although certain statutes would require legislators to perform certain tasks and do their duties as legislators, they were not being reimbursed for the same." Rep. Gosch cited the budget address as an example of one such obligation, saying "many if not all Legislators make that appearance as required by statute."

Are legislators required by statute to attend the budget address? SDCL 4-7-9 requires the Governor to submit a budget report by the first Tuesday after the first Monday in December. The statute also requires that "copies thereof shall be transmitted to each member of the Legislature." But that statute contains no language requiring legislators to attend. Indeed, legislators have skipped the address with no apparent consequences (well, maybe consequences for the general welfare, but not for the legislators themselves). Legislators can watch the coverage on South Dakota Public Broadcasting. They can read the Governor's budget speech and review the budget documents online. Attendance at the budget address appears to be a choice to participate in political pageantry, not an obligation under state law.

Nor does there appear to be any legal obligation for legislators to attend the inaugural ceremonies on the Saturday before Session begins. Legislators get to take their oath on that same day before hearing the Governor's inaugural address and heading out for balls and booze in Pierre. But statute appears not to set any requirement that legislators take their oath at the inauguration.

SDCL 3-9-7 mentions the inaugural among "political meetings" for which the state shall not reimburse state officers' or employees' travel expenses unless their duties "necessarily require" their presence. Article 3 Section 8 says legislators must take their oath of office "before they enter upon their official duties." They would appear not to have any official duties until the Legislature convenes, per Article 3 Section 7, at noon on the second Tuesday in January. Taking the oath the same day as the Governor may be fun and pompy, but it does not appear to be a statutory mandate.

I'm not trying to rain on anyone's parade. Legislators should be paid more to make running for and serving in the Legislature affordable for a wider array of working citizens.

But House Bill 1145 asks us to spend $12,915 to ensure a full House for a gubernatorial budget speech, then another $12,915 to pay legislators to spend a day hobnobbing and hoedowning in Pierre. At neither event do legislators make laws, hear formal testimony, or perform any duty explicitly demanded by law.

I invite you to review Article 3 of the state constitution and Title 2 of state law governing the Legislature to see if I've missed anything, but I can't find any language supporting Rep. Gosch's claim that he and his colleagues are required to attend either of the events for which HB 1145 seeks per diem reimbursement. Without more detailed legal clarification, the Legislature should kill HB 1145.

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After rejecting Senate Bill 114 to allow South Dakotans to order wine by mail, the Legislature has decided to conduct a summer study on the topic. AP's Nora Hertel gets some useful information on personal wine imports from nurse anesthetist and wine connoisseur Don Roesler. Roesler and his gassy colleagues (no, really: the article says "a group of Sioux Falls anesthesiologists and nurse anesthetists who enjoy drinking wine together" drafted SB 114) say allowing wineries to deliver to our doorsteps should be right up South Dakota's free-market alley:

"It's all about consumer choice. We have a right to choice," said Don Roesler, a nurse anesthetist who is president of the group, South Dakotans for Better Wine Laws [Nora Hertel, "Consumer Choice Driving SD Study on Wine Imports," AP via Seattle PI, 2014.04.26].

Roesler adds that 41 states allow direct wine shipping, and those states' traditional hooch honchos appear to have suffered no calamity. Roesler also tells AP that letting him and his fellow snifter swirlers click and ship their beverages would add $200,000 a year to state coffers.

Enter Speaker Brian Gosch (R-32/Rapid City) to dismiss consumer choice, a revenue boost, and the summer study with incomprehensibility:

Republican Speaker of the House Brian Gosch voted against the study on Wednesday.

"There are some people who are particular about the wine they drink," Gosch said. "I don't know that the state needs to get involved" [Hertel, 2014.04.26].

Um, Brian: the state is involved. The state is banning direct-to-consumer wine shipments and telling consumers that they can buy wine only from the state's favored retailers, which seems to violate both the South Dakota Republican Party's free-market fundamentalism and the Interstate Commerce Clause.

Senate Bill 114 would not have removed state involvement from wine sales. It would simply have allowed out-state wine shippers to ship to South Dakotans under a framework of regulation similar to what governs our in-state vintners and shippers. Why our Republican speaker would prefer outright prohibition over sensible regulation is hard to explain. Quick, pass him a glass of out-state wine, see if we can loosen his lips and get him to explain.

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Stephanie Strong has filed an appeal with the South Dakota Supreme Court. The appeal doesn't tell us much we don't know: Strong simply thinks that every judge who has ruled against her in the past several months is wrong.

Strong's inability to follow the law and focus her arguments in a timely fashion on the points of law Secretary of State Jason Gant and Rep. Brian Gosch violated have reduced the chances of holding those public officials accountable. Her appeal to the Supreme Court will likely do more to fuel the politics of personal destruction played by the conservative lobe of the South Dakota blogosphere.

Strong will not win any redress from the Supreme Court. But if the justices will hear her, and if she can restrict her appeal to discussion of the very dry points of law laid out in her filing, we can perhaps hope that a Supreme Court hearing on Strong's complaints will at least require Gant and Gosch to explain themselves and admit that they didn't respect notary law.

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Speaker Brian Gosch's effort to make Stephanie Strong pay his lawyer bills gets a hearing on March 22. Strong sued last year to get Gosch off the ballot for violating notary law by notarizing his own nominating petitions. Alas, she committed a comedy of errors (and a violation of state law to boot) and makes it relatively easy for Gosch and his GOP lawyers to argue that she wasted the court's time with a frivolous lawsuit.

In response, Strong offers this pro se brief to the court:

[mobile users, try here!]

Strong, bless her heart, finally finds a precedent for her initial lawsuit, a case in Pennsylvania where the court invalidated nominating petitions that a judicial candidate had notarized himself, just as Gosch did, and kept him off the ballot. (Of course, the story wouldn't be complete without noting that the lawbreaker in question, Philip J. Berg, is a right-wingnut just like Strong: he's an active birther, arguing in court that President Obama was born in Kenya.)

The Pennsylvania notary statute reads much like the South Dakota statutes that Gosch violated. It's just too bad that Strong and her Rapid City string-pullers couldn't have tracked down this legal precedent on the Googles during the original hearing when it might have made a difference. Now the Berg-Pennsylvania precedent is a new argument, which will have no bearing on the court's determination of whether the monkeyshines Strong put forth in court before Gosch's counter-action constituted a frivolous and malicious action.

It's also too bad that Strong faxed her last ten pages to the court upside down.

I hate seeing Republicans like Gosch use their party's monolithic power to disregard the law and punish those who challenge them. But in this case, Gosch is going to win, and Strong seems incapable of doing anything to stop him.

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So far, everyone in the South Dakota House but yahooligans and Ron-Paulite gold backers Reps. Dan Kaiser (R-3/Aberdeen) and Elizabeth May (R-27/Kyle) agrees that the Gosch clause in House Bill 1018 is a good idea. That's the election reform statute that clarifies that notarizing one's own candidacy petition is illegal. Speaker Brian Gosch (R-32/Rapid City) notarized his own candidacy petitions last spring, and even he voted for HB 1018 Friday. Most of us recognized the impropriety of Gosch's self-notarization the moment it was brought to light, but Secretary of State Jason Gant needed it spelled out for him. The House has done that; the Senate will shortly follow suit.

Speaking of Secretary Gant, how's he doing? He hasn't tweeted anything over a month; I'm worried he might be depressed. He does appear to be losing track of time, as apparent by the date stamp on this campaign finance report:

Clip from All South Dakota PAC 2013 year-end campaign finance report

Clip from All South Dakota PAC 2013 year-end campaign finance report

Secretary Gant stamps this 2013 year-end finance report, submitted Janaury 8, 2013, with the date "Jan 11 2012." Same on this year-end report for the No on P committee filed January 8 and this 2013 termination report for the No on P committee filed January 9.

Funny—Secretary Gant's stamper was working fine the day before, when he marked Rep. Scott Parsley's financial interest statement "Jan 10 2013." Maybe the impending Inauguration caused Secretary Gant a pang of longing for the days when Rick Santorum had more than a single-digit chance of winning the GOP Presidential nomination, and he spun the numbers back to make himself feel better.

The date is a small detail, but the Secretary of State's office is all about attention to detail. Whether it's dates, use of the notary seal, or any other statutory obligation to preserve the public trust, Secretary Gant's office is just plain sloppy.

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Last weekend, Stephanie Strong sent me a link to "Lawless America," a goo-gob of proposals by a character named William M. Windsor to reform our judicial system. She said somewhat cryptically that Windsor's proposals are "what is going to be presented next."

(I hate the passive voice.)

I assumed Strong meant that she would be looking for a way to get the Legislature to take up Windsor's proposals. I learn from Mr. Montgomery that that is not the case. Rather, according to Mr. Montgomery, Strong intends to present the Lawless America report at her next court hearing, on January 25 in Hughes County. That hearing will consider a claim from Rep. Brian Gosch and the Pennington County GOP that Strong's lawsuit against Gosch for his illegal use of his notary seal was frivolous and malicious and that Strong should thus pay Gosch's lawyer bills.

Oh my. It's bad enough Strong wasted her December 28 hearing making irrelevant political speeches. She now appears to be proposing to do the same thing in her defense on the 25th.

I thus post this open letter to Ms. Strong, in hopes of saving her some grief and money:

Dear Ms. Strong:

I read yesterday Mr. Montgomery's discussion of your court battle on his Political Smokeout blog yesterday. If I understand his account correctly, you plan to present the "Lawless America" report at your January 25 hearing in Pierre.

Don't. Don't don't don't. The purpose of the January 25 hearing is not to make political speeches. The purpose of that hearing is to defend yourself under existing state law from the complaint of frivolous and malicious litigation Gosch and the Republicans are trying to use to punish you for challenging them.

The Lawless America report is not a legal courtroom defense. It is a proposal for legislative action to reform the judiciary. The courtroom is not the proper venue for that report. When you sent that report to me, I assumed you intended to seek out legislators to sponsor those proposals as legislation.

Making a speech about that report in court January 25 will not help you win your case. Don't do it. On January 25, focus on the immediate issues of current South Dakota law. Focus on the notary statutes that Rep. Gosch (and Sec. Gant) clearly violated. Focus on the fact that you filed your lawsuit with a sincere concern that the law was being violated. Argue that your motions to change judges or venue or whatever were not efforts to keep the case from being heard but good-faith efforts to make sure the case was heard by a fair judge.

I cannot stress strongly enough: you must focus on the issues at hand, not on the bigger reforms you want the Legislature to make. I guarantee that if you waste time in your January 25 court hearing talking about the Lawless America proposals, you will only reinforce Team Gosch's contention that you are wasting the court's time with frivolous political grandstanding, not making a serious legal argument about violations of existing statute.

Be careful, be smart. Don't fall into the Republicans' trap... and don't give in to the temptation to make bigger points that don't fit in the courtroom.

Sincerely,
Cory Allen Heidelberger

There's a time and a place for everything. I haven't studied William Windsor's proposal... although a cursory glance makes me think he's probably pals with the folks who brought us the really bad (and thankfully rejected) 2006 JAIL amendment. But whatever the merits, Stephanie Strong should not argue them in the Hughes County Courthouse. She should save her skin and argue the laws that are on the books, then head up the street to the Legislature to lobby for the laws she wishes were on the books.

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Rep. Brian Gosch will likely become Speaker of the South Dakota House today. I remain convinced that he gained his office illegally by notarizing his own nominating petitions last winter. Former Secretary of State Chris Nelson agreed last summer that candidates should not notarize their own petitions. Current Secretary of State Jason Gant has whimpered that he doesn't know what the law says on the issue of self-notarization and wants clarification to the law.

Gant and the State Board of Elections have thus proposed House Bill 1018. Along with many minor revisions to election law (he and him get changed to gender-neutral phrases), Section 3 of HB 1018 adds the Gosch Clause:

The verification by the person circulating the petition may not be notarized by the candidate whom the petition is nominating.

Notary law already makes this prohibition clear, since notaries are not supposed to fix their seals to any documents to which they are principal parties. But since Secretary Gant has trouble reading, we need to spell it out for him with the Gosch Clause.

I look forward to hearing the debate on this bill... and I look forward to seeing whether Speaker Gosch votes to declare his own notary behavior inappropriate.

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