A bill inspired by this blog's reporting has received unanimous approval from both chambers of the South Dakota Legislature. Senate Bill 18 makes conducting a fake raffle a crime prosecutable under South Dakota's deceptive trade practices statute. In five votes—Senate Commerce and Energy, full Senate, House Judiciary, full House, and Senate again to concur in amendment—not one voice rose in opposition to this bill, because every sane person recognizes that selling tickets for a raffle, then not holding the raffle and not refunding ticketholders ought to be a crime.

Such a crime is apparently rare in South Dakota. In testimony to Senate Commerce and Energy and House Judiciary, Attorney General Marty Jackley said that since 2009, the Division of Consumer Protection has fielded 25 complaints about raffles. Seven of those complaints came from three raffles that cheated no one but erred on technicalities:

  1. Backyard Motorcycles LLC sold tickets for a raffle to benefit Children's Miracle Network, but SDCL 22-25-25 does not allow for-profit entities to conduct raffles.
  2. Full Throttle Saloon sold tickets for a raffle in violation of the same for-profit-entity restriction and failed to register its raffle with the Secretary of State.
  3. Black Hills Youth Football did not register and sold tickets outside of its jurisdiction.

AG Jackley said all three of those errant rafflers have refunded ticketholders, are refunding, or are working with the AG's office to make things right.

The remaining eighteen complaints all come from the same raffle: Preventive Health Strategies' fake raffle of land in Moody County, promoted in late 2012 and 2013 by U.S. Senate-candidacy-bound Annette Bosworth and her husband Chad Haber. PHS sold raffle tickets for $1,000 apiece but never held a drawing, never awarded the prize (AG Jackley confirmed the Moody County land has not changed hands) and never offered refunds. Five months after this blog broke the story of this fake raffle in November 2013, and after Bosworth and Haber attempted to cover their scam by publicly framing former employees, the Attorney General managed to shake five $1000 refunds out of PHS.

However, in his testimony to the Legislature, AG Jackley said the remaining thirteen complaints against PHS remain unresolved. The Attorney General used the present perfect progressive, saying his people "have been trying to work with the owners," suggesting that the AG's effort to get Bosworth to cough up the $13,000 they swindled from the remaining complaining ticketholders is not over.

According to Attorney General Jackley, Senate Bill 18 will not be retroactive. The PHS raffle scam will not be subject to prosecution under SB 18. However, AG Jackley told Senate Commerce and Energy chairman Sen. R. Blake Curd (R-12/Sioux Falls) that his office could still bring theft charges if it can prove that PHS had fraudulent intent never to conduct its Moody County raffle.

House Judiciary added an amendment at the request of the Attorney General and State Treasurer Rich Sattgast to remove the 30-day refund requirement and bring Senate Bill 18 in line with the state's other unclaimed property statutes. That amendment allows the AG to pursue bogus raffle claims, place retrieved funds in the unclaimed property fund, and let the Treasurer handle distributing refunds. The Senate thus had to take up SB 18 again today to concur with that amendment. With today's unanimous vote, the Bosworth-Haber raffle scam bill now heads for the Governor's desk.

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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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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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The Legislature has no bills in the hopper yet (Session doesn't open until January 13—ugh! I can't wait!), but Attorney General Marty Jackley has posted his legislative package for the new year. South Dakota's most popular Republican is riding his massive mandate to proposing eight new laws (because Republicans... like... more laws...?) to make us all safer:

  1. Put child sex traffickers on the sex offender registry: perfectly sensible—selling child porn puts crooks on the sex offender list, so why not selling children?—but techincally necessary? SDCL 22-24B-1 already lists sexual exploitation of a minor and promotion of prostitution of a minor as registrable offenses. I look forward to hearing AG Jackley's committee testimony to explain the necessity of specific trafficking language.
  2. Make raffle scams illegal: Hey! The Madville Times makes a difference! This blog broke the story in November 2013 of Chad Haber and Annette Bosworth conducting phony raffles. The Attorney General managed to force Haber and Bosworth to refund some ticketholders, but incredibly was unable to prosecute the raffle scammers because state law doesn't actually require that folks selling raffle tickets actually draw for the prize they promise. (I still think Haber and Bosworth may have violated some other prosecutable raffle statutes.) Crazily, Haber ran against Jackley for the AG spot this year, perhaps to stop exactly this kind of legislation. Expect swift and unanimous passage.
  3. Let cops and first responders administer overdose treatment: AG Jackley wants to train and equip police and first responders to give the drug Naxolone, also known as Narcan, to opioid drug overdose victims. Narcan can save lives, and U.S. Attorney General Eric Holder promoted its use by federal agents, but expect some serious discussion of the precautions necessary to turn cops into medics.
  4. Let soldier's spouses get concealed weapons permits: SDCL 23-7-7.1(6) requires an applicant for a concealed weapons permit to have lived in the county of application for at least thirty days. Apparently thirty days is too long for a soldiers's spouse to wait to carry a concealed weapon. (But wait: there still isn't any rule stopping the wife of a new transfer to Ellsworth or anyone else from openly carrying a pistol from the day of arrival in South Dakota, is there?)
  5. Legalize police scanners! Technically, all the fun South Dakota reporters and citizens have listening to their local cops on police scanners is illegal. In a small nod to transparency, AG Jackley wants to revise that law to make monitoring police communications illegal only while committing a felony.
  6. Protect DCI and HP bosses from political backlash: AG Jackley wants a law that gives the DCI director and the Highway Patrol superintendent their old jobs back if their appointments are revoked without cause. The Governor appoints the HP chief; the AG appoints the DCI boss. Curious: when's the last time either official was dismissed without cause?
  7. Make bigger lemons! AG Jackley wants to update South Dakota's consumer protection laws to raise the vehicle weight limit for our lemon law from 10,000 pounds to 15,000 pounds. (Hmm... will we have to change the name to "grapefruit law"?)
  8. Allow Supreme Court to correct illegal sentences: The AG says he is responding here to federal Supreme Court decisions; I'll have to see the bill and hear the testimony to make sense of the impact, but it sounds like minor bookkeeping.

Stay tuned for the real bills, coming sometime in the next couple weeks!

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Attorney General Marty Jackley held a press conference in Sisseton Friday to discuss the details and conclusions of the state's investigation of the November 22, 2014 murder-suicide that shocked Sisseton and briefly put the entire tri-state area on alert. AG Jackley confirmed that Colter Arbach shot and injured Karissa DogEagle and shot and killed Vernon Renville Jr., Angela Adams, Candice Labelle.

DogEagle was Arbach's girlfriend. In the wee hours of November 22, he punched her three times. DogEagle's three friends took her outside to a car. Arbach followed and fired 18 rounds from a .223 rifle and three rounds from a 12-gauge shotgun. Arbach shot Renville, Adams, and Labelle dead at the car; he shot DogEagle several times in the back as she returned to the house. According to this shooting diagram released by the Department of Criminal Investigations, Arbach shot himself in the driveway.

Arbach shooting crime scene diagram, prepared by Special Agent Jeff Kollars, SD Department of Criminal Investigation, 2014.11.22 (click to enlarge).

Arbach shooting crime scene diagram, prepared by Special Agent Jeff Kollars, SD Department of Criminal Investigation, 2014.11.22 (click to enlarge).

The detailed information Attorney General Jackley released Friday raises three questions:

  1. AG Jackley said nothing (at least nothing published) about his office's failure to positively identify the dead shooter at the scene, an error that led law enforcement to unnecessarily alarm the public with warnings that Arbach was on the loose, armed and dangerous.
  2. The crime scene diagram identifies Item #22 at the foot of Arbach's corpse as a "Beretta 12 gauge semi-auto shotgun." The diagram and the Attorney General identify the other weapon, found in the front passenger seat of the white GMC, only as a .223 caliber rifle. Why does the AG specify the shotgun but not the rifle that did most of the rapid-fire killing? Is there a magic word we're not using to avoid grief for our NRA donors?
  3. This crime scene diagram offers significant detail about a crime about which there has been little public doubt. Why has Attorney General Marty Jackley not released a comparable crime scene diagram from his investigation of Richard Benda's death? With conflicting evidence and widespread public doubt about the plausibility of the official finding of suicide, it would behoove the Attorney General all the more to release the crime scene diagram and other details, like those released Friday in the Arbach case, to assure the public that law enforcement has done its job.

Attorney General Jackley's openness in the Arbach shooting is admirable, if incomplete. AG Jackley should revisit the Benda shooting with similar openness.

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Attorney General Marty Jackley could be interrogating, arresting, and suing Joop Bollen. He could be arresting Chad Haber for hiding his campaign finance reports for six weeks and counting.

Instead, AG Jackley is wasting his time on another anti-Obama court charade that will serve no interest beyond inflating Jackley's rep among the Republican base in 2018. AG Jackley yesterday announced that he has signed our state onto a lawsuit with 16 other states to challenge President Barack Obama's executive actions on immigration policy.

Jackley claims this suit is about the rule of law, even while lawbreaking EB-5 czar Joop Bollen walks free. Jackley claims this suit is about Presidential power, even though the President's directives are entirely Constitutional. Jackley claims this suit is about saving law enforcement, healthcare, and education resources, even though he is throwing away valuable South Dakota law enforcement resources on this lawsuit when he could be focusing on more pressing problems in South Dakota, even though his party's opposition to the Affordable Care Act has denied citizens of this state hundreds of millions of Medicaid dollars, and even though his Governor has just issued a visionless budget that continues decades of Republican neglect of education resources.

Jackley and his friends will also lose this suit, just as they lost most of the arguments Jackley endorsed in the anti-ACA lawsuit. The complaint itself claims that the President has "unilaterally suspend[ed] the immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States." But Congress has already effectively suspended those laws by not providing the Executive Branch sufficient resources to capture, prosecute, and deport all of the violators of those immigration laws. Throw out these executive actions, and the President will still be bound by Congress's constraints to inadequately enforce these laws. Absent the actions the President announced on November 20, we get worse outcomes, as we expend limited law enforcement resources more randomly and less efficiently instead of focusing efforts on the most dangerous criminals among illegal immigrants. The court cannot provide the litigants the relief their lawsuit seeks. The lawsuit should therefore be moot.

The complaint wastes valuable argumentation space quoting the President's public statements as if they were binding pronouncements on law. They are not. The complaint lists past Obama Administration immigration policies and alleges impacts therefrom as if they bear on the assessment of the Constitutionality of the President's actions. They do not.

Attorney General Jackley may as well be prosecuting local cops for not ticketing every speeder or staking out every bar on Friday night. Golly, that's a public official changing the law by not enforcing it in every instance, right? Where are the cries of tyranny there?

Attorney General Jackley will continue to use his office to waste the courts' time and our money. President Obama will continue to solve problems, with or without the cooperation of Republicans like Marty who care more about scoring partisan points than seeking real justice.

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On Friday, U.S. Judge Karen Schreier rejected the bulk of the State of South Dakota's arguments for dismissing the challenge to its same-sex marriage ban. Judge Schreier's ruling says the two main cases on which the state leans to call for dismissal are not binding. The ruling says the six South Dakota couples suing have a "plausible equal protection claim" based on a fundamental right to marry and gender discrimination. The ruling says the defendants—our Governor, our Attorney General, the Secretary of Health, our Secretary of Public Safety, and the Brown County Register of Deeds—"have articulated no potential legitimate purpose" for South Dakota's discrimination against married homosexuals.

The ruling dismisses the plaintiffs' argument that South Dakota's same-sex marriage ban infringes on their right to travel. Judge Schreier says that a key component of the right to travel is that individuals who take up residence in a new state enjoy "the right to be treated like other citizens of that State." Judge Schreier says South Dakota's refusal to recognize same-sex marriages "appl[ies] equally to new citizens and existing citizens of South Dakota." That's tricky reading—our same-sex marriage ban still discriminates, according to everything before the judge so far, but since we're discriminating against all homosexuals and not just those durned furriners from Minnesota and California, the plaintiffs can't challenge the ban on right to travel.

The primary import of Judge Schreier's ruling is that the state loses its bid for dismissal, the case moves forward, and the state appears to have no good arguments on the flow.

Dealt a hard defeat, Attorney General Marty Jackley plays the kid who failed his spelling test, got in trouble for mouthing off at the teacher, but leads his answer to Mom's question about how school was today by telling her they got apple crisp for lunch. "Federal Court Grants in Part State’s Motion to Dismiss Same-Sex Marriage Case," he headlines his Friday press release. Yet not one media outlet in South Dakota has shared Jackley's assessment:

  1. "Late yesterday afternoon, Federal Judge Karen Schrier denied the state's motion to dismiss a lawsuit challenging South Dakota's ban on same-sex marriage."
  2. "Judge Rejects Motion to Dismiss SD Gay Marriage Case"
  3. "Judge Rejects Motion to Dismiss Gay Marriage Case"
  4. "Gay Marriage Case in SD to Proceed"

Come on, Marty: Judge Schreier ate your garlic bread but threw out your spaghetti and sauce. The plaintiffs can walk into court with the same arguments they've offered so far and win, while you have to boil up a whole new pot of noodles to throw against the wall to preserve the false right of the majority to discriminate against the minority.

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Now that the election is over and South Dakota Republicans have held their noses and pushed their flabby candidate into the U.S. Senate, can Republicans finally speak some truth about the EB-5 visa investment program? Attorney General Marty Jackley acknowledges some of the fundamental flaws in EB-5 as conducted under Senator-Elect Mike Rounds's gubernatorial guidance:

Jackley shares the arbitrator’s concern in the Darley case where the State of South Dakota was sued about who was really profiting from the program. It was lawyers, Jackley said, who “made an extreme profit off of this” [Todd Epp, "With Caveats, Jackley Says Troubled EB-5 Program Could Be Tool for South Dakota," Northern Plains News, 2014.11.14].

I wonder how attorneys Jeff Sveen and Tim Engel, who spent many hours negotiating the state's privatization of the EB-5 program, feel about the use of extreme here.

Jackley shows some hope for the Republican soul by questioning the economic-development-über-alles mindset that dominates the thinking of his up-ticket pals:

The Attorney General also says the country needs to look at whether green cards for investments that creates jobs is in the nation’s best interest.

“We’re going on a national debate right now on what’s right for immigration,” Jackley said. “And I think one of the concerns expressed is just because you are creating jobs doesn’t necessarily mean you ought to get that visa, so to speak” [Epp, 2014.11.14].

Dang: get Jackley to say that just one month earlier, and he'd have been committing high partisan treason by echoing Democrat Rick Weiland's criticism of EB-5 as bad policy.

Rounds, his EB-5 czar Joop Bollen, and their apologists have responded to almost every criticism of EB-5 by shouting Money and jobs! Money and jobs! Maybe I'm just dazzled by sunny Sunday optimism, but AG Jackley is signaling that he's tired of covering for other people's greed and would like to get back to concentrating on law and justice.

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