...or, as Lee Schoenbeck will remind us, dog bites man...

Illegitimate U.S. Senate candidate Annette Bosworth and campaign disastermind Chad Haber appear to have broken another law in circulating Bosworth's nominating petition. Here's the story an eyewitness tells me:

On December 24, 2013, Dr. Bosworth and her husband Haber invited two of her patients to spend Christmas with them at Bosworth's parents' home near Plankinton. (Doctor has patients sleep over for Christmas—um, boundaries?) Along the way, they detoured far off I-90 to go to a Hutterite colony about 40 minutes from Plankinton.

Bosworth and Haber met with the colony's head man, a Mr. Hofer, and his wife. They discussed the Senate campaign and the circulation of petitions. They handed Hofer an envelope of petitions, pulled some forms out, and discussed procedures for filling them out and returning them to Bosworth's office. The petition sheets were exactly like those received by other circulators, with the information at the top, including Bosworth's signature on the declaration of candidacy, filled out.

Declaration of Candidacy,  Annette Bosworth nominating petition, January 1, 2014 (or was it December 24, 2013?)

Declaration of candidacy, Annette Bosworth nominating petition, January 1, 2014 (or was it December 24, 2013?)

Notice that the declaration of candidacy bears Rodney E. Fitts's notarized statement that this oath was sworn before him on January 1, 2014. That notarized oath is necessary, because South Dakota law says no one may circulate a nominating petition for the statewide primary before January 1 of the election year. The Secretary of State clarifies that the declaration of candidacy CANNOT be signed before January 1 of the election year. That declaration, dated January 1, 2014, and notarized by Rodney E. Fitts, appears at the top of all 227 petition sheets submitted by Bosworth, including sheet #9, which was circulated by Robert Hofer on January 8 by 20 residents of the Lakeview Colony at 28748 386th Avenue, Lake Andes, about 40 miles south of Plankinton.

If my eyewitness's observations are correct, we have two crimes here:

  1. Bosworth and Haber circulated Bosworth's petition before January 1, 2014, violating SDCL 12-6-4.1.
  2. Rodney E. Fitts falsified the date that he notarized this petition, which should at the very least, per SDCL 18-1-2, forfeit Fitts's $5,000 bond meant to guarantee the "faithful discharge" of his duties.

Bosworth's premature circulation of her petition further proves the ab initio illegitimacy of her candidacy.

54 comments

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.

6 comments

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.

1 comment

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.

8 comments

I don't like to argue with the judge, especially not in a case filed too late by a gal who just can't win. Judge Kathleen Trandahl has put the final circuit court kabosh on Stephanie Strong's effort to hold Rep. Brian Gosch accountable to notary law. Judge Trandahl says Strong filed her challenge to Rep. Gosch's self-notarized primary-season nominating petition too late for the court to take any action. The judge also says nothing in law prohibits a notary public like Gosch from signing his own circulator's verification statement.

I may be able to live with the first part. Strong had more than two months between the time knowledge of Gosch's misuse of his notary seal became public knowledge and the final publication of the November ballots. Strong waited a month beyond that to askthe court for relief. Strong should have acted faster.

But Trandahl seems to dismiss too easily the statute behind Strong's complaint. There is law that restricts Gosch from signing certain petitions, specifically those to which he is a principal party. I haven't a full ruling, but I haven't heard the judge explain how a candidate is not a principal party to his own nominating petition.

The legal tardiness and sloppiness of Strong and whatever right-wing Gosch-bashers are backing her may keep us from getting a direct, official answer to that question. But if Strong and associates want to flush an answer out of a system they perceive to be stacked with cronies, they'll need to up their game and get the Supreme Court to give them a listen.

20 comments

Stephanie Strong had to screw up somewhere. Her lawsuit to get Secretary of State Jason Gant to throw Rep. Brian Gosch (R-32/Rapid City) off the November ballot for violation of notary law has a solid statutory argument behind it (not to mention the precedent that former Secretaries of State and the SDGOP itself have set for diligent observance of notary law). But she appears to have filed it in the wrong court.

So says Assistant Attorney General Richard Williams, who is using our tax dollars to defend Secrretary Gant's misuse of our tax dollars. AAG Williams has filed to change the venue of Strong's suit from Pennington County to Hughes County.

I want to believe that this request is just part of the mass counterassault the state GOP is launching against any and all challengers to its unchecked power in Pierre. I want to believe that Secretary Gant, who can skip work to drive all the way to Rapid City just to try jawboning a critic into backing off, is just trying to inconvenience Strong by making her drive all the way to Pierre to press her case against his malfeasance.

But Gant has statute on his side. AAG Williams points to South Dakota Codified Law 15-5-2 on venue for legal action:

Actions for the following causes, or upon the following instruments, must be tried in the county where the cause, or some part thereof, arose, or the forfeiture was declared, subject to the power of the court to change the place of trial:

...Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who, by his command or his aid, shall do anything touching the duties of such officer... [SDCL 15-5-2].

Secretary Gant accepted Rep. Gosch's defense of his self-notarized petitions and authorized them in his office in Pierre. Stephanie Strong, you'd better ask Ed Randazzo and Gordon Howie for gas money. You'll be arguing your case against Gant in Pierre.

3 comments

Stephanie Strong speaks... and she gets a judge to compel Secretary of State Jason Gant to do so too... in court.

Recall that Stephanie Strong made a brief news splash when she announced she would run against Rep. Kristi Noem in this year's primary but then failed to make the ballot through her own petitioneering incompetence. Recall that Secretary Gant got awfully particular about some candidate petitions, which just happened to come from Democrats and which a judge subsequently validated, but willfully ignored clear legal violations on other petitions which just happened to come from a highly placed Republican, Speaker Pro-Tem Brian Gosch, who notarized his own petitions.

Stephanie Strong wants a little petition justice. In a writ of mandamus filed on her request Friday in the Seventh Circuit Court in Pennington County, recent Daugaard appointee Judge Robert A. Mandel orders Secretary Gant to either kick Rep. Gosch off the District 32 November ballot or come to court in Rapid City on October 3 and explain why he doesn't have to fulfill his legal duties. (See full document at bottom of this post.)

When I heard Strong was leading the charge against Gant's dereliction of duty, I had my doubts that she could pull it off. Last spring she appeared to fumble her effort to challenge Secretary Gant's rejection of her own petitions by not answering the phone. She also demonstrated a tendency to lose her focus on relevant constitutional questions and melt down into Tea Party hysteria.

But her filing on Gant's malfeasance on Gosch's petitions looks pretty good. She establishes that she is a registered voter in District 32 with standing to challenge Gosch's presence on her ballot. She points out the specific violations on every one of Gosch's petition sheets:

  1. Brian Gosch certified the three petition sheets his wife Heather circulated, invalidating those sheets under South Dakota Codified Law 18-1-17, which says notaries public cannot place their seal on documents to which they are principal parties.
  2. Jayme Scherr notarized Rep. Gosch's fourth petition sheet. Jayme Scherr also signed that sheet as a nominating voter. Jayme Scherr thus invalidated that document.
  3. By misusing their notary seals, Gosch and Scherr also committed a Class 1 misdemeanor under SDCL 18-1-12.2. (Strong's application for writ of mandamus doesn't mention that statute, but I'm offering Strong some pro bono support.)

Strong bolsters her case by submitting as Exhibit B Kevin Woster's boffo June 16 article on the Gant-Gosch scandal, in which she highlights these two points:

  1. Gant said that he couldn't take Gosch back off the ballot, but that folks who felt strongly (hee hee!) about the issue could take it to court. You asked for it, Jason!
  2. Gant's SoS predecessor, Chris Nelson, said his office had a clear policy of rejecting petitions notarized by the candidates themselves.

Secretary Gant whimpered and simpered in the same article that he needs the Legislature to make his legal duties clear to him in the 2013 session. Thanks to Stephanie Strong's legal fight, we may have the pleasure of seeing a judge make the law clear to Secretary Gant sooner than that.

22 comments

Secretary of State Jason Gant plans to take no action on the illegally self-notarized petitions of aspiring House Speaker Brian Gosch (R-32/Rapid City) or House candidate David Mitchell (D-20/Mitchell). Instead, he says he will ask the Legislature, including whichever of those candidates may win a seat therein, to make the law "crystal clear."

That's funny: the law seemed crystal clear to Gant's predecessor, Chris Nelson:

Former Secretary of State Chris Nelson, who now serves on the state Public Utilities Commission, said his office policy was clear on the issue.

"Candidates could not notarize their own petitions," Nelson said. "We had people do that, and we rejected them."

Nelson said they never ended up in court over that question, however.

"I don't remember that it ever happened on the final day, where it cost somebody a candidacy," he said. "It happened early enough where we could say: 'Hey, you can't do this. Get us some more signatures.' And we were good to go. We went to court on a whole lot of questions, but not that one" [Kevin Woster, "Dispute over Gosch Petition Notarization Headed for State Legislature," Rapid City Journal, 2012.06.16].

Gant whimpers in reply:

Gant said that was then and this is now.

"I don't know what the previous secretary's policy was," he said. "But I want to make the future better by clarifying the issues for the 2014 election" [Woster, 2012.06.16].

That was then... horsehockey! We're not talking about the previous secretary's policy. We're talking about what state law says, and it says the same thing now as it did when Nelson ran the show and ran it well:

18-1-12.2. Party to transaction as notary public prohibited. It is a Class 1 misdemeanor for a person to affix a signature to a document as a notary public when the person has also signed the document as a party to the transaction proceeding.

That law has been on the books since 1997.

18-1-7. Notarial acts valid despite notary's agency for party to transaction. A notary public who is personally interested directly or indirectly, or as a stockholder, officer, agent, attorney, or employee of any person or party to any transaction concerning which he is exercising any function of his office as such notary public, may make any certificates, take any acknowledgments, administer any oaths, or do any other official acts as such notary public with the same legal force and effect as if he had no such interest except that he cannot do any of such things in connection with any instrument which shows upon its face that he is a principal party thereto.

That law hasn't been amended since 1960. Those two laws make clear that you don't notarize documents on which your name appears as a principal party.

But wait: Gant doesn't need me telling him what the law is... when he has Brian Gosch telling him how to interpret it in Brian Gosch's favor:

Gosch said he turned his nominating petition in at the secretary of state's office in January and was initially told by a staffer that there was a problem with notarizing his own petition. Gosch said he argued that he was only notarizing the name of the petition circulator, not his own name. The petition and signatures were accepted [Woster, 2012.06.16].

Wait a minute: the Secretary of State's office tells a candidate there's a problem with his petitions, the candidate offers a looser alternative interpretation of the law, and the Secretary of State's office says, "O.K."? That's not what happened in Charlie Johnson's case, and that's not what Judge Mark Barnett said should happen:

In Monday's hearing, the judge said Gant acted properly when he rejected Johnson's nominating petition because the state's top election officer must strictly apply the laws and rules. If Gant, a Republican, used discretion to decide which flawed petitions substantially comply with the law, he could be accused of favoring one political party over another, Barnett said [Chet Brokaw, "SD Judge: Democratic Candidate Can Be on Ballot," AP via Real Clear Politics, 2012.05.21].

If you're Charlie Johnson, you have to take your argument to court. But if you're Speaker pro tempore Brian Gosch, you get to argue your case for free on the spot in the Secretary of State's office and get the liberal-to-breaking interpretation of law that you want.

The integrity of the notary seal doesn't require a change in the law. It requires a change in management. It's too bad we have to wait until 2014 to do that. Our only option now is to maintain constant vigilance over a Secretary of State's office that appears to rule by fiat, not law.

Update 12:27 CDT: Gant's failure to understand and carry out his duties on notary seals only adds to the reasons that Senator Stan Adelstein (R-32/Rapid City) calls the Secretary "an absolute disaster to the Republican Party, the SD elective process and to the values of our State."

22 comments

Support Your Local Blogger!

  • Click the Tip Jar to send your donation to the Madville Times via PayPal, and support local alternative news and commentary!

South Dakota Political Blogs

Greater SD Blogosphere

SD Mostly Political Mix

Greater SD Blogosphere

Madville Monthly

Meta