The statewide texting-while-driving ban passed by our Legislature this year is inspiring Mitchell to repeal its local ordinance on electronically distracted driving. The new state law makes texting while driving a secondary offense, meaning troopers can't pull you over for thumb-screen absorption, but they can enhance your ticket if they stop you for something else and you don't hide your iPhone before they come to your window. Mitchell currently makes texting while driving a primary offense, meaning that's the only reason city cops need to stop you and take your contribution to city government.

Councilman Phil Carlson voted with the council majority last Monday in favor of first reading of the repeal. Carlson prefers uniformity in traffic laws. He also thinks repealing the local ban will save the city some legal bills:

Carlson says that Mitchell should repeal its ban because drivers could fight their tickets in court, which could cost the city money.

"There could potentially be some legal issues with it. For instance, somebody gets ticketed under our ban instead of the state ban, there could be a legal fight over that that could go potentially all the way to the South Dakota Supreme Court," Carlson said [Leland Steva, "Mitchell City Council Takes First Step in Repealing City's Texting Ban," KELO-TV, 2014.04.12].

Drivers can fight lots of tickets in court. There is debate on whether they would win the argument that the state's texting-while-driving ban supersedes any local ban. But how many drivers will litigate? The Mitchell fine is $120. Even the boldest pro se defendant will burn up that much money just in time off from work to go to court well before getting to the complicated and costly state Supreme Court stage.

I'm not saying people should not litigate when they have genuine grievances against improper laws and official actions (or inactions). I'm saying the cost of accessing our justice system, even to get a simple answer about whether state law supersedes local law, is so high that the test case Carlson fears won't materialize from most rational drivers.

Carlson also fails to include in his cost-benefit calculations the public-safety benefits Mitchell gets by more strictly encouraging drivers to keep their eyes on the road. If the tougher local ordinance makes a thousand Mitchellians decide not to pick up the phone and text while crossing town to Cabela's, and if just one of them manages not to crumple someone else's car or run over a pedestrian, the city comes out ahead, even if someday the lawyer Mitchell PD pulls over sues his way out of his $120 ticket.


Now the House is just picking on Betty Olson. Last month, the good Representative from Prairie City proposed House Bill 1114 to yank all the reflector poles out from alongside South Dakota's state highways. The Department of Transportation and Department of Public Safety said no, Betty, that's a really bad idea. House Transportation agreed 10–3.

Apparently worried that Rep. Olson may try taking matters into her own hand, the House has pending before it Senate Bill 103, which drops a bigger hammer on folks who swipe highway signs. Right now, stealing or messing with highway signs and markers is a Class 1 misdemeanor (see SDCL 31-28-23). SB 103 tacks on up to a $2,000 civil penalty, at the discretion of the court. This additional punishment has cleared the full Senate and the House Transportation committee; we'll see if the House acts today to raise the stakes on Rep. Olson or anyone else who tries to... raze the roadside stakes.

But remember, Betty and all you party people in the House: it's just a reflector....


Gregg and Susan Spindler are not happy. Their daughter Meagan, a researcher for the U.S. Fish and Wildlife Service, was killed by a drunk and doped driver last July. Since then, the Spindlers have tried from their home in New York to persuade South Dakota to get tougher on impaired drivers. They've communicated with Governor Dennis Daugaard. They've proposed reforms like the National Transportation and Safety Board's proposal to lower blood-alcohol limits to 0.05 or less. They've presented facts and research to support stronger DUI enforcement.

Facts and research? We know how that goes in South Dakota government....

The proposals were reviewed by the governor’s staff, Department of Public Safety and Highway Patrol. On Nov. 15 we again met, but the only proposal was the Highway Patrol committed to doubling its enforcement actions to 400 in 2014. That means on an average day, only in one spot in the vast state of South Dakota there will be an active DUI enforcement action.

Finally, on Feb. 5, we were informed there would be no major changes in DUI laws. The governor felt changes would not have the “intended effect.”

His assessment totally contradicts the work of the NTSB. Ignoring the NTSB’s report is just as serious as if the CEO of Boeing or Airbus chose to ignore NTSB air safety recommendations.

The governor ignores the success of the European Union, Japan, Australia or Canada reducing deaths, injuries and DUI incidence. In a decade, EU deaths were cut by more than 50 percent, while U.S. death rates have flat-lined. This is not nanny-state socialism; rather, tough laws, deterrence, highly visible enforcement and good police work [Gregg and Susan Spindler, "South Dakota, Governor Disappoint on DUI Reform," Mitchell Daily Republic, 2014.02.14].

South Dakota evidently needs some kind of changes. We just miss the top ten for impaired-driving fatality rates, with 0.47 fatalities per 100 million vehicle miles traveled. Oklahoma is tenth at 0.48; North Dakota is fourth at 0.60; Montana is second at 0.73. Yet Governor Daugaard looks at a goo-gob of science on how to save lives on our highways and shrugs.


House Judiciary hoghoused HB 1177, the distracted driving bill this week. Legislators kept the "We're not really Republicans!" part about trumping local control with state authority: HB 1177 now deems the Legislature "the exclusive regulator of all matters relating to distracted driving and use of electronic wireless communication devices in motor vehicles." (I want a t-shirt that says that: "Exclusive Regulator!")

But Speaker Gosch's bill has now morphed into a texting-while-driving ban. Writing, sending, or reading a text-based wireless communication a secondary offense. Under HB 1177, police couldn't pull you over for staring at your tiny screen instead of the road, but if you run over my child while typing "where r u," Smokey could write you an extra ticket.

HB 1177 still lets you fumble with your keypad as you try to type in or search for a phone number, because, you know, scrolling through your messy contact screen and punching in numbers is so much less distracting than typing other data.

The House said Wednesday that making texting a secondary offense is great. But Aberdeen city attorney Adam Altman isn't so sure HB 1177 can trump his town's more aggressive texting ban:

...Aberdeen’s texting ban is a primary offense, Altman said. That means a driver spotted texting can be pulled over for no other reason.

That’s why Aberdeen and other towns, including Sioux Falls, Rapid City, Huron, Spearfish, Sturgis, Elk Point and Dell Rapids, have all voiced opposition to the state texting proposal, Altman said. He said Aberdeen Police Chief Don Lanpher Jr. is also against the state bill.

“In general, we want the ability to make it a primary offense if the governing body so wishes,” Altman said of the communities opposed to the state measure.

The state text ban “not only says what the Legislature thinks, but tell us what we should think and how we should act,” he said.

Ultimately, Altman said, a judge might have to determine whether the state text ban would trump city bans already in place [Bob Mercer, "Texting Ban Passes House," Aberdeen American News, 2014.02.13].
The Legislature is creeping in the right direction, at least sending the message that people need to put down their toys and drive. When you're on the road, even the long road from the Capitol back home to constituents in Rapid City, Sioux Falls, and Aberdeen, keeping your eyes on the road is Job #1. Legislators should focus on enforcing that message and stop trying to take authority away from communities who feeling texting is an even greater danger than our legislators recognize.


Ken Santema recounts what's shaping up to be another bad week for traditionalist conservative supporters of property rights and limited government in the South Dakota Legislature.

Rep. Stace Nelson (who has bought groceries for my family with his ad on this blog) introduced House Bill 1232 to prevent the state Department of Transportation from trumping local zoning decisions. Mr. Santema reports HB 1232 was in part a response to HB 1036, the Department of Transportation's proposal to annul local zoning actions taken to create zones primarily for billboards.

HB 1036 appears to target an April 2013 zoning decision in McCook County, where one Ralph Tuschen asked the county commission to rezone a small parcel next to I-90 from agricultural to commercial for sign placement. According to Santema's account of last week's House Transportation Committee hearing, the Department of Transportation frets that if counties let folks put up billboards willy-nilly, South Dakota will lose federal highway funds. Indeed, the Highway Beautification Act says that states that fail to maintain proper control of outdoor advertising can lose 10% of their federal highway funds.

Combine the loss of $38 million dollars (in FY 2014, the Legislature appropriated $380 million in federal funds for transportation) with the chance to beat up on Stace Nelson, and you get a bill that goes nowhere. The full House killed HB 1232 Monday, with only Nelson's band of merry but meager Mugwumps choosing local control over slavery to Washington (at least that's how they'd describe it). HB 1036 passed the House two weeks ago and awaits Senate action.

I do sympathize with Mr. Santema. I chafe at restrictions on signage and other design choices on private property, for Fifth and First Amendment reasons. If a property owner wants to clutter her yard with signs or old tractors or big cut-outs of farmers in bibbers swatting their wives' amply bloomered backsides, who are we to intrude with our aesthetic sensibilities? At the same time, we can't let Midco, Lamar, and Ted Hustead buy out every farmer and rancher from the McNenny Hatchery to Valley Springs and turn I-90 into a continuous walled strip of flashing advertisements. Finding the middle ground between free market, free expression, and scenic views here is tricky.

But the local-state-federal authority question offers no middle ground. If the federal government says states must follow certain rules to get highway funding, the state can't allow local governments to make decisions that imperil that funding. The state either allows counties to make their own zoning decisions on billboards, or the state exerts the control necessary to continue receiving federal funding. The state picks either small government or big government. The Legislature's vote on HB 1232 shows that, contrary to what the majority Republicans will be telling you on the campaign trail this year, they pick big government and federal money over small government and local property rights.

Related Reading: Scenic America says billboards degrade the natural environment, endanger health and safety, and hamper economic development. Ah ha! So that's why South Dakota has trouble competing in business recruitment!

Tangential Reading: A committee of Leadership Madison trainees wants more signs in Madison, to help visitors find our schools.


Have we killed the "Republicans support local control" lie yet? If not, see House Bill 1177, in which a herd of Republican legislators attempt to stamp their casual attitude toward highway safety on every local government in South Dakota.

HB 1177, sponsored by Speaker of the House Brian Gosch himself, would deny any local government the ability to adopt any ordinances pertaining to distracted driving that deviate one iota from state law. Here's the new section HB 1177 would add to statute:

No local government or local authority, except as expressly authorized by law, may adopt or enforce any ordinance or other measure regulating or restricting distracted or inattentive driving by a person who is operating a motor vehicle on a highway if the ordinance or measure is contrary to or at variance with any provision of state law relating to such activity or if no state law relating to such activity has been enacted or is in effect.

For purposes of this section, the term, distracted or inattentive driving, includes operating a motor vehicle while using electronic communications devices or electronic messaging, consuming food or beverages, interacting with passengers, watching television or other electronic or printed visual media, or engaging in other activity that may interfere with the ability to focus on driving tasks.

HB 1177 looks like another bit of Republican grandstanding that belies the GOP's misunderstanding of the concept of personal liberty. These legislators seem to think that liberty means being able to do whatever they please in their automobiles. They ignore the fact that their behavior in their vehicles, as they chat away, engrossed in their telephone conversations as they make the long drive each weekend to and from Pierre, has impacts (possibly literally!) on others.

They also ignore their own purported fealty to the principle of letting local governments decide what's best for their own communities. When Republicans want to give school districts the liberty to hand out firearms to teachers, they're all about unchecked local authority. But if some mayor or county commission dares tell a legislator to hang up and drive or lock up his pit bull, it's time for central control.

The Republican Party is not terribly concerned about public safety. They definitely aren't concerned about local control.


The Legislature is humming... though not as efficiently as it might, thanks to the fiscal impact statement requirements of last year's omnibus criminal justice reform law. (I told you so.)

Here's an assortment if minor (?) additions to the Legislative hopper, fresh out of the oven this morning:

Rep. Betty Olson (R-28A/Prairie City) finds a new threat to happiness: highway reflector poles. House Bill 1114 would require some poor soul to go out and pull all the reflector poles out from alongside our state trunk highway system. Highway 34, 81, 12, 385—the whole trunk system is listed in SDCL 31-4 (Sections 130–247).

Maybe this is just a Democrat thing, but I like to see where I'm going. And if you're worried about hitting those poles, well, (1) don't drive like an idiot, and (2), they do make flexible reflector poles.

Rep. Melissa Magstadt (R-5/Watertown) must have some friends, or friends of friends, in med school. She's proposing House Bill 1110, a tiny little amendment to the definition of "resident" for hunting, fishing, and trapping licenses. Current law allows South Dakotans who are out of state for "regular attendance at a post-high school institution as a full-time student" to get resident hunting, fishing, and trapping licenses. Rep. Magstadt wants to extend that privilege to students in  "regular attendance in a medical or dental residency program." Hey, Rep. Magstadt! How about including students in pastoral internships, too? My wife might want to take out little one fishing!

Rep. Scott Munsterman (R-7/Brookings) and Sen. Ryan Maher (R-28/Isabel) have some plan for economic development, but they aren't ready to tell us. Their House Bill 1109 currently consists of one line: "Economic development in the state shall be enhanced." HB 1109 is a shell bill, placed in the hopper at the last minute to hold a place for some scheme that legislators haven't worked out yet. The language and timing reflect that of last year's Senate Bill 235, the omnibus economic development that started as a single sentence (though better written, in active voice, instead of HB 1109's passive), floated unamended and unexplained through the Senate, then exploded from secret committee negotiations in March, during the last hectic days of the Legislature, when we all had to scramble to read it in all its forty-section glory. Might Munsterman and Maher be laying a tiger trap for legislation to respond to the audit and review of shenanigans in the Governor's Office of Economic Development (the results of which appear to be late)? One can only hope!


The Department of Transportation appears keenly interested in the happiness of tipsy passengers in South Dakota. Their proposed revision of aviation law would remove restrictions on open alcoholic beverage containers in airplanes. The DOT now wants to clarify similar privileges extended to passengers on the party bus.

Current state law exempts certain "carriers" from the open container law. But the way that statute is written, the driver of an officially licensed party bus or limousine could have an open beer between his legs and not be breaking the law. Oops.

Senate Bill 39 fixes that oversight. The proposed text makes clear that the passengers can crack open the cold ones, but that "The driver of such carrier is prohibited from possessing in the driver compartment of the vehicle a package or receptacle containing an alcoholic beverage if the original package seal has been broken."

I'm glad we could take care of that problem. Party on, passengers!

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