Surprise! Just when you thought the Legislature was done debating Common Core, Rep. Dan Kaiser (R-3/Aberdeen) pulls a smoke-out!

On Wednesday, House Education killed House Bill 1223, which seeks to end South Dakota's involvement with Common Core and related multistate curriculum standards. On the House floor yesterday, Rep. Kaiser invoked Joint Rule 7-7 to demand delivery of HB 1223 to the House.

Rep. Kaiser contended the bill did not receive a fair hearing. He said House Education "was subjected to at least three presentations from all folks who are... pro-Common Core" while Common Core opponents were not allowed the same opportunity.

House Education Chair Rep. Jacqueline Sly (R-33/Rapid City) replied that the committee dedicated an entire, two-hour hearing on HB 1223 and gave proponents and opponents equal time. Rep. Sly noted that neither the proponents nor opponents used their full forty minutes in that hearing. She said the presentations cited by Rep. Kaiser would have been the same whether HB 1223 had come forward or not.

Rep. Kaiser got 24 House members to stand for his smokeout; that's the one third necessary under Joint Rule 7-7 to order delivery from committee. House Ed thus had to quick circle up in the lobby and conduct an impromptu vote to so deliver the bill.

The anti-Common Core folks lost one of their committee votes: Rep. Mathew Wollmann (R-8/Madison) voted to keep HB 1223 alive in Wednesday's hearing, but yesterday voted with the committee majority to send the bill downstairs with a "Do Not Pass" recommendation.

We went through this same process last year, when House Ed rejected an anti-Common Core test-exemption bill 8–7, only to see it smoked out for one more brief and fruitless wrangle on the House floor. One source tells me the House will take up this smokeout next week Tuesday; we'll see if this smoke generates any better flames this time around.

Update 2015.02.21 06:26 CST: added video of Rep. Kaiser's smokeout speech.

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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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I've mentioned Rep. Dan Kaiser's (R-3/Aberdeen) House Bill 1134, which removes the loophole prosecutors can use to prevent the expungement of arrest records, which allows the state to continue persecuting innocent people they've wrongly arrested.

At Saturday's crackerbarrel in Aberdeen, Rep. Kaiser explained why HB 1134 is important to him and to democracy:

Rep. Dan Kaiser (R-3/Aberdeen) speaks at crackerbarrel, Northern State University, Aberdeen, South Dakota, February 7, 2015.

Rep. Dan Kaiser (R-3/Aberdeen) speaks at crackerbarrel, Aberdeen, South Dakota, February 7, 2015.

...[T]his bill reeks of Americanism. This is an expungement bill of people with arrests, not people who have been convicted, and in America, you are innocent until proven guilty.Now, unfortunately, in Third World countries, they have laws set up where the government gets to keep their thumb on people, innocent people. And sadly, I view it, that is our state law right now, that even people whose charges have been dismissed because there is not enough evidence to bring their case forward cannot that off the record. By definition, as Americans, these people are innocent, and yet we have laws in place that allow the government to keep their thumb on those folks [Rep. Dan Kaiser, remarks, crackerbarrel, Aberdeen, SD, 2015.02.07].

The two main perpetrators of the Third World thuggery that prompted HB 1134, Beadle County state's attorney Michael Moore and Attorney General Marty Jackley, both testified against HB 1134 before House Judiciary on Wednesday. Sounding nervous, Moore said the Brandon Taliaferro case was the only expungement request in twenty years that he has turned down. Moore said he applies three criteria to expungement requests:

  1. Did the person deserve to be charged? Moore insisted that, based on victim input and grand jury findings, Taliaferro deserved his charges.
  2. Does the person requesting expungement come to the prosecutor's office and explain why he deserves expungement? Apparently Moore expects applicants to ask him personally for the expungement, to explain how they have changed their life around."
  3. Does the expungement meet the interests of justice and the public? Moore did not elaborate on this point. But he apparently disagrees with the South Dakota Supreme Court's finding that the refusal to expunge Taliaferro's arrest, while legal, was "harsh."

Moore said no law should be changed because of one instance. He complained that no legislators had asked him to explain the details of the Taliaferro case motivating HB 1134. "At least get the facts: call me, I'll take you to lunch, I'll explain to you this case and why I withheld my consent." Moore did not lay out those facts for the committee at Wednesday's hearing; he apparently believes matters of justice like this should be resolved in a nice off-the-record lunch.

Rep. Mike Stevens (R-18/Yankton) dismissed Moore's contention that HB 1134 is a response to just one particular case. He summarized the effect of HB 1134 in committee discussion Wednesday:

...[I]t's a matter of due process. Our United States Constitution and our state of South Dakota constitution, at the heart of it is due process, fairness, having an opportunity to have a hearing. And when you have a statute like we have right now that allows one person to prevent due process, to me, that's not fairness, and that's not accountability [Rep. Mike Stevens, discussion of HB 1134, House Judiciary Committee, Pierre, South Dakota, 2015.02.04].

Rep. Isaac Latterell (R-6/Tea) asked Moore if a judge is less biased in deciding whether to expunge an arrest than the state's attorney who made that arrest. Moore rejected the assumption that prosecutor's are biased. "I'm probably the most forgiving prosecutor I know," averred Moore. He said he has to stand for election and wouldn't win re-election if he were biased.

Point of reality: state's attorneys are inherently biased. They order the arrest. They bring the charges. They stake their reputations on the outcome of a public trial in an adversarial system that presumes and accepts bias from both sides and leaves it to judge and jury to sort things out.

Attorney General Marty Jackley joined Moore to raise constitutional concerns. He said the 2012 Oliver case, which informed the 2014 Taliaferro ruling, hinged on Article 3 Section 4 of the state constitutions, which vests the power of expungement entirely within the executive branch, not the judicial branch. HB 1134 would thus unconstitutionally take away the executive branch's authority over expungements via prosecutorial consent.

Lindsey Riter-Rapp of the South Dakota Association of Criminal Defense Lawyers made short shrift of that argument. She noted that Oliver dealt with an individual who requested expungement of an arrest that led to conviction. HB 1134 deals with expungements for innocent individuals, against whom charges were never filed, whose case the prosecutor dismissed, or who win acquittal.

Rep. Timothy Johns (R-30/Lead), a former judge, further schooled AG Jackley, asking why, in the spirit of open government, a prosecutor under the reform of HB 1134 couldn't still go to the judge and make his case against expungement. AG Jackley was non-responsive, resorting instead to the comment that expunging arrests violates the spirit of openness by allowing people to "misrepresent" whether they've been arrested. Rep. Johns rolled past AG Jackley's barricades, affirmed Riter-Rapp's reading of Oliver, rejected any suggestion that HB 1134 is unconstitutional, and said any prosecutor who wants to block an expungement should go to the judge and explain why.

AG Jackley also attempted to conflate the issue of Taliaferro's arrest with Taliaferro's firing as a deputy prosecutor in Brown County. AG Jackley said the state's attorney had acted appropriately in terminating a prosecutor who had behave inappropriately and that while that inappropriate behavior was not necessarily criminal, that fact did not justify expunging the arrest or making an unconstitutional statute.

AG Jackley's sentence should have stopped at "not necessarily criminal." If an action is "not necessarily criminal," why is any arrest taking place? Why is the state keeping its thumb on an individual for an arrest that never should have taken place?

Rep. Kaiser HB 1134 identifies a clear problem with current law. AG Jackley and prosecutor Moore have used state law to punish an innocent man. Their testimony Wednesday, which gave no specifics on why Brandon Talieferro's unjust arrest should remain on his record, further exposes that urge to oppress and deceive. State law currently allows them to exert that oppressive power unchecked. HB 1134 justly removes prosecutors' opportunity to abuse their power.

So far, the majority agrees. HB 1134 passed House Judiciary 9–3 Wednesday and cleared the full House 64–2 Thursday. The only nays in the full House came from two Democrats, Rep. Peggy Gibson (D-22/Huron) and Rep. Kevin Killer (D-27/Pine Ridge). HB 1134 next goes to Senate Judiciary, date to be determined.

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It would be fun to have Rep. Dan Kaiser as my Representative. His seven bills provide all sorts of fun blog discussion!

Worth mentioning is Rep. Kaiser's House Bill 1127, which would exempt South Dakota from Daylight Savings Time. Alas, the wording appears a bit confused as to just where it wants to lock in the clocks:

Notwithstanding any other provision of law to the contrary by the United States relating to the adoption of daylight savings time by all of the states, the state of South Dakota elects to reject daylight savings time and elects to continue use in force standard time, or summer hours [House Bill 1127, original text, posted 2015.01.27].

Correct me if I'm reading something wrong here, but Daylight Savings Time is the clock we use in the summer (and the first half of fall, the last couple weeks of winter, and all of spring). Standard Time is what we're doing right now. If South Dakota rejects Daylight Savings Time, it rejects "summer hours." The language of this bill contradicts itself.

If the intent of this bill is to reject Daylight Savings Time and keep "winter hours," we face an interesting timing question. We switch to Daylight Savings Time this year on March 8. With no emergency clause appended, HB 1127 would take effect on July 1, which is a Wednesday. HB 1127 would thus have us set our clocks back across South Dakota in the middle of a workweek, which I'm sure would wreak all sorts of mirthful chaos at the office. With everyone's work and sleep schedule mixed up, we should just call a five-day weekend for the Fourth of July and let everyone get rested. (Oh! Bonus to HB 1127: fireworks displays could start an hour earlier for the kids!)

I have mixed feelings on Daylight Savings Time. I love the later sunsets it brings us. Sunshine past nine p.m. East River fills me with bliss. But I appreciate rolling out of bed and blogging by the glorious dawn light of Standard Time instead of the delayed sunrises of Daylight Savings. We just can't have it all....

Of course, if we really want to get fundamentalist about time, maybe we should amend HB 1127 to adopt Mountain Time statewide. The brief confusion caused by switching our clocks back or forth an hour twice a year is nothing compared to the daily confusion for folks doing business statewide keeping straight Central and Mountain Time. Time zones should center around meridians so that solar noon (the time when the sun is highest in the sky) as 12:00 p.m. In Madison, high noon comes around 12:45 p.m. Standard Time and 1:45 p.m. Daylight Savings Time. In Pierre, high noon comes at 12:54 p.m. Standard; in summertime, solar noon is almost tea time. If we unify South Dakota under Mountain Time, noon will be closer to noon, and we will bring East River and West River together, two clocks, finally ticking as one.

When do you prefer your sun? Should we keep fiddling with our clocks? I'm eager for the discussion of Daylight Savings Time here and in House State Affairs.

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You know, for being a conservative verging on Libertarian, Rep. Dan Kaiser (R-3/Aberdeen) sure likes proposing laws. He's prime sponsor of seven bills in the hopper so far (and he has until Tuesday to come up with more!). But sometimes you've got to pass laws to protect liberty.

One of Rep. Kaiser's bills, House Bill 1134, rights a wrong discussed on this blog and highlighted by the South Dakota Supreme Court last fall. HB 1134 would remove the clause under which Beadle County state's attorney Michael Moore and Attorney General Marty Jackley were able to punish attorney Brandon Taliaferro (pronounced /TOL - li - ver/) for challenging abuses of Native American children in the foster care system. The state presented no evidence that Taliaferro had committed any of the crimes for which it arrested him, but one niggling statute allowed prosecutor Moore to block Taliaferro's request to expunge the arrest record and allow him to practice law and go about his business without further impact from the bogus charges Moore brought. The South Dakota Supreme Court recognized Moore's action unjustly harmed Taliaferro but said the law is the law and dismissed Taliaferro's effort to win expungement.

Rep. Kaiser now seeks to erase prosecutors' authority to block expungement of arrests. As Bob Mercer points out, Rep. Kaiser has the backing of some legal heavy-hitters:

Kaiser is a policeman and his record in the Legislature has tended to be one of protecting people’s personal liberties. His co-sponsors include two retired circuit judges, Rep. Timothy Johns, R-Lead, and Sen. Arthur Rusch, R-Vermillion, and two private attorneys, Rep. Lee Schoenbeck, R-Watertown, and Rep. Steven Haugaard, R-Sioux Falls [Bob Mercer, "Supreme Court: 'We Recognize This Is a Harsh Result'," Pure Pierre Politics, 2015.01.29].

As always, Mercer chooses his words carefully, but he appears to agree that the state treated Taliaferro poorly and that those poor treaters deserve some scrutiny:

The bill was assigned to the House Judiciary Committee; a hearing hasn’t been scheduled yet. The Tailaferro indictment looked, from the outside, to have been a strange chapter in law enforcement in South Dakota. Now the matter and the actions of the various sides will receive further light, to a degree they previously hadn’t, before the Legislature [Mercer, 2015.01.29].

HB 1134 won't restore Taliaferro, but it will protect innocent citizens like him from future abuses of prosecutorial power. Stay tuned for the House Judiciary hearing: we'll see if Attorney General Marty Jackley can defend this prosecutorial veto power over the expungement of their own erroneous persecutions before the Legislature the way he did before the Supreme Court.

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U.S. Senate candidate Stace Nelson posts a video testimonial from his Legislative colleague Rep. Dan Kaiser:

It's the usual Stace Nelson line: constituents, Constitution, government burdensome and inappropriate, and a "clear defined vision of what America has been, what it should be, and where we go into the future and how to accomplish all of that." Note the emphasis on has been, which I invite challengers to morph into an accusation that Rep. Nelson or Rep. Kaiser (pick your race) says America is a has-been.

Note also that Rep. Kaiser gives his campaign pitch from the floor of the House of Representatives. As we discussed back when Kristi Noem was shooting campaign vid-selfies from her Capitol office, statute offers to explicit prohibition against using the sacred halls of democracy to produce campaign images. The Legislature's rules on decorum include a provision allowing the use of chambers for campaign photographs.

Now if only there were a joint rule requiring campaign videos to talk about specifics and substance.

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I have read with interest the argument between Aberdeen city councilman Mark Remily and Aberdeen policeman and State Representative Dan Kaiser. Remily says Kaiser supports excluding homosexual partners from protection under South Dakota's domestic abuse statutes. Kaiser says that's a lie, an "emotional response to a 'hot button' phrase." Aberdeen's Ken Santema offers some reasonable background on the confusion surrounding the domestic abuse bill and Kaiser's opposite-sex amendment. Blogger Pat Powers calls Remily's accusations "doltish" and politically motivated, accuses Remily of creating a hostile work environment for his policeman, and demands an apology for having "conveniently ignored facts."

What are the facts?

Remily points to this year's Senate Bill 147, which sought to clarify the definition of "family or household members." Neither existing statute nor the original text of SB 147 said anything about same-sex or opposite-sex partners. Rep. Kaiser sponsored the original bill, largely because it would have removed the line applying domestic abuse statutes to "persons who have lived together." That seems reasonable: if you and an old college roommate get in a fistfight, you should be charged with disorderly conduct or assault, not domestic abuse.

But then in the House on February 27, Rep. Kaiser did indeed propose an amendment to exclude same-sex couples from domestic abuse protection. Kaiser and most of his GOP colleagues voted for that amendment and the resultingly anti-homosexual bill (notable exceptions: arch-conservative stingster sweethearts Jenna Haggar and Isaac Latterell).

Remily says Kaiser's amendment shows that he believes "that if you're gay or lesbian you have no right to be protected by law enforcement." Kaiser says "I want all people to have protection under the law." He explains his anti-gay amendment as a procedural move:

I sponsored this bill because in its original fair state it removed the wording “people who have lived together” and replaced it with “people in an intimate relationship.” When the bill went to the Senate, they removed the new wording of the bill and put in the old wording, which would again require law enforcement to arrest former roommates.

Kaiser gets the Senate amendment wrong. Read the original SB 147 alongside the Senate version carefully. The Senate amendment did not insert any old wording that would have required law enforcement to arrest roommates. The Senate amendment only removed "foster parent and foster child" from the definition of family or household members. That amendment may be problematic for other reasons, but it has nothing to do with Kaiser's expressed concern.

Kaiser then offers a procedural defense of his anti-gay amendment:

When the bill came to the House, I tried to pass an amendment to restore the bill to its original fair state. My amendment failed. I knew if I did pass an amendment, the bill would have to go to conference committee and be voted on again, so in order to protect roommates from arrest, I added the amendment to change the wording to opposite sex. It passed [Rep. Dan Kaiser, letter to the editor, Aberdeen American News, 2013.06.24].

Kaiser also gets procedure wrong. When the bill came to the House, it carried an amendment from House Judiciary that removed the language about dating relationships and added language that might have sparked Kaiser's roommate prosecution concerns. The bill that came to the House floor was already different from the version passed by the Senate. SB 147 would have gone to conference committee without Kaiser's anti-gay amendment.

Kaiser's amendment may well have been a poison pill, intended to "cause problems." However, Kaiser testified to the conference committee in March and said "homosexuals deserve the protections everybody does."

But Representative Kaiser's response to Councilman Remily's attack doesn't hold water. The House Judiciary amendment, not the Senate's, created the problem Kaiser cites. And that House Judiciary amendment made the Kaiser amendment unnecessary for the procedural purpose he claims. If Remily is looking just at that amendment and the on-record legislative context of Senate Bill 147, he can't be blamed for viewing the Kaiser amendment as gratuitous gay-bashing.

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Ron Paul devotee Rep. Dan Kaiser (R-3/Aberdeen) ran his first big nutty Libertarian/end-times bill up the committee pole yesterday. He told House Commerce and Energy to pass his House Bill 1100, a proposal to require the state to let Kaiser and Glenn Beck listeners trundle down to the courthouse with their wheelbarrows of gold and silver coins to pay their taxes. David Wiest of the Department of Revenue testified to say please, no. The committee listened and shot down this unrealistic, impractical idea that serves more to flog the religion of Ron Paul.

Libertarians like Rep. Kaiser use this gold and silver foolishness as a front for making their hopes for the collapse of the American government a self-fulfilling prophecy. How better to undermine confidence in the U.S. dollar (and drive up the value of that gold Glenn Beck told you to buy) than to force the government to create a new market for all that metal you have sitting in your bunker?

Freshman legislator Kaiser tells reporter David Montgomery that he's "going to focus on researching the issue to better address criticism next year." Don't waste your time, Dan: real research will only make it harder for you to defend your Ron Paul agenda. You might as well call my cousin Aaron and come back next year with a bill to require full-reserve banking.

Hmm... I wonder if U2 are Libertarians....

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