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.

16 comments

House Bill 1044 looks like a lot of style and form changes related to certifying and disciplining K-12 teachers and administrators. The Secretary of Education gets explicit authorization to initiate certificate violations (what? Dr. Schopp doesn't have that already?). The bill clarifies the Secretary's authority to refuse to issue or renew education certificates as well as suspend or revoke. Most of the provisions seem reasonable and minor.

But I notice three provisions that appear to subject educators to a greater threat of losing their license to teach or administer in South Dakota. (The bill applies equally to teachers, principals, and superintendents; as a teacher, I'll focus on teachers.)

Section 10 changes who can start a proceeding to take away a teacher's license. Remember, we're not just talking about getting a teacher fired—that's handled at the local level, by the school board. We're talking about yanking a teaching certificate, a teacher's permission slip to seek employment anywhere in the state. Right now, SDCL 13-42-12 says that "The school board or governing body employing a teacher or administrator, the professional teachers practices and standards commission, professional administrators practices and standards commission, or the secretary of the Department of Education" can start the process to revoke a teacher's certificate. HB 1044 strikes that language and authorizes "any person" to call for a certificate revocation hearing.

In my teaching career, I believe I've had a hot parent or two say they were going to take my license away. None ever have, because parents can't do that. South Dakota has a nice local protocol where, if you have a beef with a teacher, you first talk to the teacher. If that conversation doesn't satisfy your concerns, you take it to the principal, then the superintendent, then the school board. That's four levels of your friends and neighbors who, if something really is wrong with the teacher, ought to be able to take some action. If your local school board does fire the teacher from your district, it's up to the school board to decide whether to ask Pierre to kick the teacher out of the profession.

The current system allows local districts to filter complaints. HB 1044 lets angry parents skip the local level completely and take their complaint straight to Pierre. HB 1044 comes at the request of the Department of Education, so I guess Secretary Schopp really must want to deal with a constant stream of headhunting parents. Have fun with that, Melody!

Current statute (SDCL 13-42-13) gives the teacher under fire the ability to demand that the hearing take place in the county seat of the county where the alleged violations that draw the complaint took place. HB 1044 repeals that statute and leaves the choice to move the hearing from Pierre with the Department of Education. That increases the possibility that 90% of South Dakota teachers would have to drive at least three hours to defend their certificate. The same drive time would apply to complainants, although (and I can speak from experience) angry parents who want to make a teacher's life hell often are more motivated (and, dare I suggest, given South Dakota's wages, more wealthy?) than the teacher who just wants to keep her head down and do her job. HB 1044 reduces the ability of challenged teachers to at least keep the costs of their litigation down.

HB 1044 then throws another brick at teachers. As if asking, "Are you sure you want to fight this?" the bill offers Section 17:

After conducting a contested case proceeding that results in the denial, nonrenewal, revocation, or suspension of a certificate, the department or commission may assess all or part of its actual costs for the proceeding against the certificate holder or applicant.

Make due process potentially more expensive, and fewer people will seek due process. A teacher facing a certificate revocation has probably already been fired. If she wants to stay in teaching, she'll have to spend every job interview for the rest of her life explaining why she got fired and why that firing shouldn't stop the next school from hiring her. Even if she's a really good teacher and the firing wasn't just, far more employers will decline to give her a chance to prove her abilities, thus reducing her lifelong earning opportunities. Suspending or revoking her teaching certificate only worsens her professional and financial outlook. Doesn't that process already impose enough costs on the teacher without tacking on another bill at the end that says due process isn't really your due.

I also notice that Section 17 is not complemented with a section that requires complainants to pay the cost of the proceeding if their complaint does not prevail. HB 1044 thus goes after jerk teachers who deserve to be kicked out of the profession, but it does not go after vindictive community members who would drag a teacher through an arduous certificate hearing for no good reason.

House Bill 1044 looks like a further weakening of South Dakota educators' ability to defend themselves from local politics and unfair challenges to their professional livelihood. HB 1044 promotes the false impression that there's something wrong with our teachers. South Dakota teachers really aren't paid enough to put up with this kind of grief.

43 comments

Among his many irrational criticisms of Senator Tim Johnson, Pat Powers earlier this month served up some reheated outrage over our senior Senator's vote to confirm Debo Abegdile as Assistant U.S. Attorney General. Senator Johnson was on the losing side in that vote; the Senate rejected Abegdile, because the President's nominee had defended convicted cop-killer Mumia Abu-Jamal in court.

Criticizing a lawyer for defending scum and criticizing the politicians who vote for or otherwise associate them is cheap and easy politics. The Constitution entitles every defendant, no matter how vile, to due process. Effective due process depends on effective legal counsel. Respect for due process requires that we not hold it against lawyers (or their friends and other clients) that, half the time, they will be representing a guilty parties.

But if you want to plant the petard of painting politicians with the unpleasantness of their attorney's past clients, well, prepare to be hoisted.

The terminally leaky bucket of Annette Bosworth's fake Senate campaign places another document in my hands. Remember Bosworth's snarky response that she's justified in stiffing Florida ad-maker SCC because the company failed to deliver on its full contract, some sanctimonious tripe about "South Dakota tradition" and offering partial payment? A new document indicates that response came from Bosworth campaign attorney Paul Richardson of the Richardson Law Office in Plano, Texas.

Paul Richardson is an old O'Gorman High School classmate of Bosworth's husband Chad Haber. He got his law degree from the University of South Dakota, then moved to Texas to practice.

And for whom does he practice? Sex offenders, drug dealers, drunk drivers... because, as esteemed counsel says,

No matter how serious the charges, Richardson Law Office can provide you with effective representation and help protect your rights. While anyone charged with a crime has a constitutional right to a defense, I believe every defendant should have a right to a STRONG DEFENSE [Richardson Law Office, website, downloaded 2014.03.14].

Yup, better call Paul.

Now I don't have a story here. But I think Pat does. When Senator Tim Johnson votes for a lawyer who represented a cop-killer, Pat question-mark-accuses Johnson of making a hard left turn. When a candidate for Senate whom he promotes hires a lawyer who makes a living defending numerous similarly scuzzy characters, Pat says....

13 comments

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