Now that we have some Democratic balls rolling, let's tell Judge Srtska he's wrong.
Last week, retired judge Bill Srtska apparently floated an argument on Facebook that Initiated Measure, the indexed minimum wage increase that South Dakota voters wrote into law, may be unconstitutional. Judge Srtska writes that the automatic annual cost-of-living adjustment may constitute an "unlawful delegation" of legislative power. Srtska apparently sees no constitutional problem with our establishing $8.50 as the minimum wage on January 1, 2015, but once we start letting inflation and math set subsequent minima, "All South Dakotans would be bound by the new wage floor although that rate was never passed by the legislature."
May it please the court: His Honor misreads the law. Initiated Measure 18 goes no further than a number of other statutes through which the Legislature has enacted provisions that operate automatically, without subsequent legislative action.
Consider sunset clauses. South Dakota has passed laws with sunset clauses, providing for repeal of laws without the consent of the sitting Legislature at the time of repeal. One law passed in 2013 imposes a sunset in 2046. That law binds numerous South Dakotans not even born yet to a decision made by likely no one in their Legislature.
For an even stronger parallel, consider the agriculture productivity tax, the Rube-Goldberg income tax we impose on farmers and ranchers. The Legislature does not establish land values. It used its legislative power to hire SDSU economists to cook up a new productivity value each year. That action is as legislative, as mathematical, and as automatic as the cost-of-living increase in the minimum wage. I have not heard anyone suggest that the Legislature fire the SDSU economists and calculate the productivity formula themselves each year (I'm not sure our legislators are that good with math to start with).
The new, indexed South Dakota minimum wage is as constitutional as several other South Dakota laws now on the books. If anyone wants to challenge its constitutionality, they'd better be prepared to unravel a host of other state laws. Judge Srtska, are you sure you want to pull that thread?
No legal training here, but it seems to me that the school aid formula is another huge example of a statute that "binds" the legislature. The common argument among Pierre law scholars is that the legislature is never truly bound because it can always trump the old statute with a new one if they think they must ... As they did with the school aid formula before they recognized that the president had saved the economy.
Can we just buy the Honorable Srtska some vowels?
The problem with lawyers is they think they know the law. He's wrong; you're right. The Legislature can change any provision of any initiative at any time they are legally in session. If they couldn't then the 1984 nuclear waste initiative is still in force, and the Daugaard's dream of a high-level nuclear waste dump hit a major roadblock.
The legislature will pass a bill in 2015 removing the indexing provision from the minimum wage law that voters just passed. Gov. Daugaard will sign it. They will use various rationales to justify it, including the one made by Judge Srstka. They will also argue that the voters didn't have a choice whether they wanted indexing or not; the only ones with a choice are the ones who drafted it leaving the voters only with an up or down vote on the whole thing. Whatever justifications they use won't matter in the end because the GOP has the votes in the legislature to remove indexing, and the public will have forgotten or forgiven by 2014. Legislators rarely get held accountable at the ballot box for their votes anyway. And this won't be the first or the last time that the legislature overrules a citizen-passed ballot initiative.
I mean by 2016 - the next election.
Does Srstka feel the same way about the annual increases in his South Dakota retirement checks? Perhaps he will return that money!
You just don't sit down and let the legislature run over you. there's always a way to stick it right back up their ass. People need to refer whatever the legislature does to the minimum wage measure. If it is referred the measure goes into effect as written, and people get pissed off at the arrogance of the legislature.
If I recall correctly, back in the 1980's lawyer Bill Srstka functioned as a lobbyist who had influence on his in-law, then Governor Mickelson. Gov. Mickelson initially supported a funding mechanism for civil legal services for the poor, through a small increase in civil filing fees dedicated to this program. The bill passed both houses by huge margins, but the Governor decided to veto it. Wondering whether the veto had been influenced by Srstka, it is my recollection that Mr. Srstka adamantly opposed the bill. When asked why, one answer he gave was that it lacked a had sunset provision that allowed the bill to expire after a year or so. Apparently, at that time he did not think subsequent automatic changes in a law or repeal of a law violated the state Constitution.
Cory, I think your property tax example is the better one. Most of the other examples here are fundamentally different. I suspect there are other examples in the law, like the property tax one you site
I think the good judge was just setting up the GOP legislature and governor for an out and once again go against the will of the citizens of South Dakota...good to know where his loyalty lies.
So Lee, what do you think about the legislature overriding the will of the citizens?
The Constitution is designed to protect the minority from "the will of the people."
Whether one supports the law and COLA or not, I assume all of want laws to conform to the Constitution and would support the overturning of a law we support in concept if it is Contrary to the Constitution.
Am I correct? Or do some of you consider the Constitution only a piece of paper able to be overruled by the "will of the people."
BCB—fascinating history! Anybody have some old newspapers where we could check that story?
Oh, Troy, believe me, I agree that the law must conform to the constitution. If my examples are valid parallels, but if Judge Srtska's legal reasoning holds, then I want all of those examples repealed and the Legislature put to work deciding minimum wage increases and new land valuations every session.
Lee, I welcome more examples of the Legislature or the people enacting future rules without the active consent of the future Legislature.
And since we have a legislator or two in the audience, let me ask this: The Legislature regularly delegates rule-making authority to various boards and committees, right? The Legislature says to, say the Board of Elections, "We want rules to do X. You work out the details." That seems an even greater delegation authority than IM 18. We initiating citizens aren't delegating our authority to any other agency. We're saying we shall increase the minimum wage with a cost-of-living adjustment every year. That adjustment comes from one defined statistic. We've created a clear formula, into which one number will be plugged each October 15. IM 18 doesn't give anyone any authority to create new rules or procedures. What if any legislative authority has been delegated unconstitutionally here?
"the president had saved the economy"
No really, he simply delayed the inevitable.
"Am I correct?"
No Troy, the Constitutions have been put aside and is only used as a mouth piece to justify taking advantage over others in society. And others are workers, teachers, and the rest of the 99%ers. Both parties are behind it.
"Am I correct? Or do some of you consider the Constitution only a piece of paper able to be overruled by the "will of the people." Yes
The Blindman ps there will be more
Cory, I don't recall a lot of publicity on the bill or the veto back then, so I doubt that there are any newspaper stories quoting Srstka. I believe that he acted behind the scenes rather than publicly.
The above events are based on my personal recollection of my efforts to get the bill passed. I met with Srstka when I learned about his opposition to the bill and tried to convince him to support it. He rebuked my arguments and he relied on the lack of a sunset provision, among other arguments. I have no personal knowledge about whether he approached the Governor about the bill, but the Governor's sudden change of mind, coupled with Srstka's personal relationship with the Governor, raised this possibility. Before the veto, the bill had strong bipartisan support, with RC City attorney and Republican legislator Mike Deitrich (sp?) leading the charge. It passed on a nearly unanimous vote in both houses. After the veto, however, SD Republicans entirely abandoned the legislation and refused to override by a large margin. After that the bill went nowhere in later legislative sessions.
Oh please Troy, don't insult us here at the Madville times.
This is just another Party over People pay that the governor like to engage in. Just lie when the voters rejected his unaccountable slush fund for GOED.
Let's say the legislature decides it is unconstitutional and decides to change it. Where does it go to be decided? If there is a court fight, who pays for the people to defend their vote? Who approves the expenditure of taxpayer money to handle the legal bills?
Party over people man and in one party dictatorial state...who wins?
" IM 18 doesn't give anyone any authority to create new rules or procedures."
What it does is guarantee the working poor remain poor. The inflation statistic used for COLA is flawed. The state LRC is saying inflation is 1.5%. It is way higher than that.
"one party dictatorial state"
You can thank the Democrats currently wearing the Republican badge.
Ewpps...or maybe not. I typed "Party over People pay..." I
I meant to say "Party over People Play"
Wait...what? Pay to Play?
Wow...who would have thought that a typo could have so much meaning.
yes he saved the economy. not pretty but look at the fundamentals today.
thousands of examples exist of the bible and the constitution not being in the best interest of society.
Troy, tsk. Constutions have built-in mechanisms whereby they can be amended and overruled by the will of the people. You know this, of course.
Were it otherwise, you wouldn't be able to drink a beer with your steak, and our friends Roger and Jana wouldn't be allowed to vote.
Ewpps...there's another typo.
I typed "lie" when I meant to type "like."
Let's see, I was talking about the GOP playing games and...well..."Likes to Lie" springs to mind.
I think my keyboard is on to something here.
Jana, bumping up against the old archetypes today? LOL.
Sometimes there's just no way to get around them. ;-)
http://en.wikipedia.org/wiki/Jungian_archetypes
The voters of SD have spoken and the legislators should respect that. $8.50 an hour is not going to hurt anyone as an employer , it is still starvation wages.
Rather than COLA, we should base the increases on CEO pay...that would liven things up a little.
Study: CEO Pay Increased 127 Times Faster Than Worker Pay Over Last 30 Years
http://thinkprogress.org/economy/2012/05/03/475952/ceo-pay-faster-worker-pay/
Bill...you make me smile!
Of course, it could be that the GOP is just really trying to hide a new tax on everyone. A shadow tax...kind of like the uninsured they don't want to have healthcare.
http://www.bloomberg.com/news/2013-11-13/how-mcdonald-s-and-wal-mart-became-welfare-queens.html
The South Dakota Retailers Association that opposed IM18 are now saying that they won't challenge it in the next legislative session.
Bill, my parents weren't American citizen's when they were born, even after Indians were granted citizenship in 1924 my parents had to fight for every right most Americans enjoyed, including South Dakota's versions of Jim Crow laws. My parents never backed away when they were discriminated against or when a right was delayed or denied.
Republicans talk about the value of the Constitution, but a complete and thorough examination of it shows the reasons it has needed to be amended, as a Native American I see the Constitution as the most exclusionary document ever written.
I'm just guessing that the legislators in Pierre who make minimum wage will fight any changes...wait...what?
Or maybe, it's the legislators who pay (or have cronies who pay) minimum wage, will fight IM18.
I'm sure you do, brother Roger. Let's keep working to rectify that. :-)
I doubt seriously if anyone's going to fight it.
But, politically, strategically, Dems might almost kind of hope that they do.
What great issue to run on in 2016, and in the mean time, also a good reason to go back out into the field, gather signatures for a referendum on the legislature's action or even a new initiative, Amendment, whatever... and talk to voters about how their representatives in Pierre don't want to listen to them.
All in all a good way to prime the Dem vote pump for an upcoming presidential year. Would the R's really want to make that kind of unforced error?
"But Lord, when did I see you sick and hungry?"
And the Lord will answer "Duh, maybe it was denying Medicaid expansion, exploiting cheap labor...or a minimum wage for the working poor."
And the faithful GOPers will beg "But we listened to your apostle Milton Friedman and he said that 'trickle down economics that can take generations to work if there is no greed' to help you."
And the Lord will throw up his hands and a little in his mouth and say "By all means look away from me and follow your corporate Golden Cows."
Thus endeth the scripture.
The Gospel today is from the holy books of the Chamber and Koch brothers.
"For I say unto you, follow the golden rule." "He who has the gold rules." And all the good people said "Amen!"
There will be a potluck in the fellowship hall immediately after the service where the GOPer Circle will be serving up their special sh*t sandwiches.
Thou art on a roll today, m Lord! Got ur keys or fingers working. Worth a smile.
"$8.50 an hour is not going to hurt anyone as an employer , it is still starvation wages."
So IM18 was not a solution to poverty. What was it? Just a ploy to get Democrats elected? That didn't work neither. IM18 is nothing more than a joke that makes people feel good about saying they did something they didn't. Democratic deception that is at the same level as the SDGOP deception on EB-5.
Baby steps Sibby, baby steps...
Yes Sibby, I can see how giving the working poor a small bump in wages is exactly like selling a pathway to citizenship to godless communist capitalists from China so they can exploit the working poor with minimum wage to satisfy their greed...yep it is exactly the same thing.
The beauty of it Sibby...is that they misused taxes collected from the working poor to fund it...classic. So yeah, you're right on the mark with your comparison.
Actually, Sibby, as this chart demonstrates, the increase brings a single person working at minimum wage well above the poverty line into a "living wage," and the COLA will keep them there. A working couple with one child would also be in fairly decent shape...or at least no longer considered "poor."
http://livingwage.mit.edu/states/46
All these people around here that claim they are Christians should have eradicated the poverty problem a long time ago. I guess it just makes them feel good to say they are Christian. I guess you could call that one deceptive, Sibster.
Why do we fall into the Sibbinator trap?
Jenny, Bill warned me a long time ago about not going into the Sibby Rabbit Hole...I'll peek in every now and then, but I have heeded his good advice.
Oh Jana ... you make me smile!
The Constitutional issue is a delegation of authority. The Legislature delegating to the Board of Election or to a school board is Constitutional because both get their legal authority from the Legislature/Governor (ie the State of South Dakoya). The Cola is determined by the BUreau of Labor Statistics (federal authority) and they have the authority to change what is in the COLA.
I don't think the other analogies are appropriate because they are accountable to the State of South Dakota.
I know you all want to make broad anti GOP comments against me. My comments have nothing to do with the subject. Only an academic and precedent setting with regard to what is Constitutional delegation of authority is my concern.
In fact, I think there is merit to a COLA. I just wonder whether it is allowed and am concerned it is a bad precedent.
PS Bill, I know the will of the people can change the Constitution but this isn't a constitutional amendment.
"""""Actually, Sibby, as this chart demonstrates, the increase brings a single person working at minimum wage well above the poverty line into a "living wage," and the COLA will keep them there. """"". You have to be living in a different world that I to believe that is a living wage.
Read the chart at the bottom, Les. The budget is there, and yes, it's pretty tight.
I read it, Bill. It's tighter than a frogs petute in water. Your statement o f " well above poverty into a living wage". That ain't so and it isn't a living wage.
Les, not my stats. Fine with me if they raise the numbers higher of course. By my math, the increase of an additional 1.25 an hour adds up to about $200 more a month. Now, tell us you don't think that helps. Not sure why you would want to argue about that, but whatever floats your boat, mon.
The increase to $8.50 does not solve poverty, it eases the harshness of it.
It provides more spending power, and can increase moral.
I think the COLA is a great idea. COLA helps prevent the minimum wage issue coming up every few years just to go through the same old debate again, and again, and again.
(Wayne B., on vowels: were you listening to Car Talk this weekend?)
I voted for 18, Alice. It doesn't cure poverty and saying it does should bring every Maddvillain's wrath upon you.... ;^) nose in the air B.
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If that's what floats the SD Dems boat, they be hangin with the Joopster jus a little tooo much~!
Les, don't worry. Be happy.
When at USD grad school, I roomed with law students, Charlie Thompson, Bill Srstka, Brian Meyers, and Chuck Schroyer. We had a lot of discussions (or arguments). Srstka had Janklow for a visitor now and then. They both viewed politics as bayonet warfare. Now that Srstka is a retired judge, he can get back into fighting form again. Don't underestimate him. He is smart and stays informed.
Hey wiken, what do you mean by being smart? Another law school grad who could not make it in the real world so his peers got him to the top by nominating him from justice of the peace,to magistrate judge,to circuit judge and to the top because he could read the law book in front of him and hand out opinions from the law book? Just because they hang that title after your name does not make you smart!!!!
:-))))))) Happy. I used to drink coffee with HHH at 9am on occasion, in the cafeteria of KSTP tv Mpls. I was a peon audio engineer. My father was a personal friend of George McGovern. I can only say, "in the presence of those two senators, it didn't matter what party color you were, you knew you were the most important person in the room".
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Minnesotan's bragging about their great state need to pay alms to those who trod those grounds into the state it is today. Those currently in power will lose it eventually as do generations of families who build it, care for it and lose it. South Dakota Dems are just more progressive than Mn's and have already lost it. ;-) I'm still happy, Bill.
MN reveres HHH. There is a statue of The Happy Warrior on the capital grounds.
Agreed about the vowels.
municipal league, srstka, thanks for looking out for the people
(Cory, I always listen to Car Talk when I can... though it'll never be quite the same now.)
I think Troy's point has merit.
To Troy's point, is there any evidence of the State of South Dakota tying funding mechanisms automatically to federal programs (Medicaid, DOT match funds, state retirement COLA perhaps)?
The judge's argument is that a COLA conveys power on to others. In fact, without it, the law's provisions will be altered dramatically by inflation. As written, the law assures original intent by minimizing future economic impacts.
Troy's argument is really goofy, and belies an ignorance of how federally dependent the state is. The Legislature has repeatedly and consistently "delegated" authority to federal government agencies. Most of the state's environmental programs' rules are delegated to the EPA. Of course, being welfare queens, the Legislature has no problem taking the money EPA provides to run the programs EPA actually sets up for the state. The Legislature might think it's providing some state direction, but it ceded that long ago. In fact the Legislature passes bills every 1-5 years demanding that DENR cede authority to EPA. So, Troy, it's back to the drawing board for your little lawsuit.
You have to remember that wingnuts redefine words to suit their whims. To a wingnut a billionaire is poor if the could be a multi-billionaire with some more tax relief from wingnuts. The real poor are beneath notice to wingnuts because wingnuts claim they want everything for free-such as a living wage,food to survive on,heat in the winter,etc. The wealthy are just more needy because wingnuts are still trying to decide what to give someone who has everything.
Wingnut mores-here koch brothers,have some more and if that ain't enough have some more.
Donald,
What you are referring to are DENR/Legislature conforming their laws with federal law. Insurance and Securities are other examples where this is done.
Conforming isn't delegating. The state could refuse to conform and deal with the consequences. The state retains is authority whether it conforms or not.
Just FYI, I agree with Jimmy James from a practical point of view. There is merit to the COLA as it diminishes big jumps and allows for better business planning. And, while not an attorney, it does seem to conflict with the delegation of authority prohibition because of the discretion in Bureau of Labor Statistics or the power in Congress to change how the CPI is calculated.
Troy, let me check: if IM 18 were rewritten to have the COLA determined by the SDSU economics department or by the SD Department of Labor, would the constitutional question go away? If so, would the question come back if SDSU Econ or DOL consulted any federal statistics to calculate the COLA?
I like Jimmy James's argument on intent even more than Troy does. That's brilliant, and I think I would have legs in court. The intent is to provide some consistent protection of worker rights. Programming the minimum wage to keep up with inflation protects those rights better than letting the minimum wage decline in value.
Plus, the voters aren't really designating legislative power to the federal BLS. The statisticians aren't deciding what the minimum wage should be. They are measuring and reporting facts about the American economy. BLS supplies information; the voters have made the legislative decision to use that information.
But Donald offers an excellent argument. I don't think he's talking about conforming state laws with federal laws. Donald, would 2011 Senate Bill 158 be an example of what you are talking about? That's the bill we passed to toll (i.e., suspend, deem without legal force) our rules on in situ uranium mining. According to what I learned from Larry Mann in August, the rules DENR had written weren't out of compliance with federal law; EPA just chose not to approve them, saying they wanted South Dakota to regulate all five classes of injection instead of just two. So basically, SB 158 said, "We have rules on the books. They are not in effect until the EPA puts them into effect." Doesn't SB 158 effectively delegate legislative authority to the EPA in a much direct, decision-making way than our use of one statistic from BLS?
Troy:"""Legislature conforming their laws with federal law."""". Legislators told me they legislated DENR authority on Powrtech over to the Feds based on lies by the Powertech lobbyists. How is that conforming to federal law?
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Now these same legislators can find anything wrong with Powertech. Imagine that.
Can't find anything wrong with Powertech.
Les, I don't know anything about Powertech. All of my comments is based on my understanding of delegation of authority and the times I ran into the issue while working for state government. I'm not a lawyer nor do I pretend to be.
Cory, remembering I'm not a a lawyer. :)
1) I do think using SDSU to compute a COLA defined by the state would be acceptable under the Constitution.
2) BLS is not just reporting facts but making judgment on a compilation of facts. They or Congress can change the components or the relative weighting that makes up the CPI. And, this is the heart of my concern about delegation of authority. BLS's administrative flexibility or an act of Congress changes the CPI and thus the amount of increase.
3) Intent of the law to protect worker's purchasing power via their wages ("rights" is is the wrong word as nobody has a right to sustained purchasing power) is irrelevant. If this law is an unconstitutional delegation of authority, intent doesn't matter.
4) I don't know anything about SB158. If it is taken to court and found a delegation of authority, the law needs to be re-written. Same with this. In both cases, nobody sues it likely stands.
Speaking of uranium, big big fine for the 12,000 gallon spill at the Uranz insitu mine between Casper and Gillette. Big big fine of $5000. That's a whopping 41 cent a gallon fine. Wyoming produces abut half the yellow cake mined in the US and it appears they want to keep it that way.
Geez Les, I wonder how they could stand such a slapping on the wrist. Clearly it came from the wings of a butterfly.
You seem to be reading up a lot on delegation of authority these day, Troy. I reckon your bud, Mr Rounds, probably has been coached from his lawyers on that one in regards to Mr Bollen and his recklessness. Never say too much.
Here's the point, Troy. Laws and rules under federal environmental programs could "conform" to federal law or rules, but be written in a way that actually better fits state needs. They could be more strict than federal law. That would be what environmental groups have been been asking for for decades. However, what the Legislature does not "conform" our rules to the federal rules. Instead they have set it up so that the only option South Dakota has is to "delegate" our laws and rules to the federal government. The state adopts rules by adopting in whole the federal rule. That's "delegating" to the EPA, and not "conforming" our own regulations to EPA standards. These are two different things entirely. The exception, really, was the uranium laws, where parts were much stronger than the federal law and rules. There was no reason we needed to conform to federal law there, because the feds didn't have uranium mining laws. So, what did the Legislature do? Gut our own laws and rules, and delegate the entire process to the feds.