The South Dakota Supreme Court stepped on the gas this month, issuing 15 of its 97 rulings for 2014. Among five released last Tuesday was State v. Mundy-Giedd, in which our justices unanimously rejected a drunk driver's attempt to nullify South Dakota's DUI laws. Rather than just regurgitate Attorney General Marty Jackley's press release on the ruling, let's study the actual ruling, which provides a useful lesson in reading ambiguous statutes in the context of legislative intent.

Nicole Mundy-Giedd got busted for DUI in 2013. Her lawyer, Timothy R. Whalen of Lake Andes, tried the same defense he ventured with a few other clients: he argued that an innocuous little bill passed in 2012, HB 1027, actually repealed our DUI laws. Whalen contended on his clients' behalf that 2012 HB 1027 got rid of a statute that excepted drunken-driving laws from another statute prohibiting laws punishing "drinking, drunkenness, or being in an intoxicated condition." The 2014 Legislature caught up and repealed that latter provision with 2014 HB 1017 (thus opening the door for the return of Prohibition?), but from July 1, 2012, through June 30, 2014, Whalen claims the Legislature opened for Mundy-Giedd and other South Dakotans a window of opportunity to drink and drive.

Absurdity flows abundantly from our Legislature, but not that much absurdity, say our Supremes.

To ward off absurdity, the Court rejected Mundy-Giedd's effort to limit interpretation of statute to the text on the page and instead accessed common sense through a broader reading of legislative history and intent. The Court accepted the state's argument that nothing in the titles or histories of the 1974 and 2012 laws in question showed any intent by the Legislature to legalize drunk driving. The Court then looked at other legislation to determine that the Legislature maintained its intention to bust DUI:

Other contemporaneous legislation confirms our conclusion. Indeed, although the 2012 Legislature repealed SDCL 34-20A-95, it simultaneously revised a criminal penalty statute (SDCL 22-6-5.2) to expressly authorize enhanced penalties for violating SDCL 32-23-1. 2012 S.D. Sess. Laws ch. 119. The 2012 Legislature also amended rather than repealed SDCL 42-8-45, an analogous statute that prohibited boating while “under the influence” of alcohol. 2012 S.D. Sess. Laws ch. 208, § 1. And in 2013, the Legislature reaffirmed that SDCL 32-23-1 remained enforceable. That Legislature amended SDCL 32-23-4.1 and SDCL 32-23-4.6, statutes that governed enhanced penalties for violating SDCL 32-23-1 if the offender had prior DUI convictions. 2013 S.D. Sess. Laws ch. 101, §§ 64, 65. Thus, contemporaneous and subsequent legislation reflects that the Legislature’s 2012 repeal of SDCL 34-20A-95 was not intended to prohibit DUI prosecutions under SDCL 32-23-1 [Chief Justice David Gilbertson, State v. Mundy-Giedd, 2014 S.D. 96, pp. 6–7].

The Supreme Court noted that Mundy-Giedd's narrow interpretation would have required the wholesale repeal of numerous alcohol-related laws, including minor consumption, public consumption, stricter commercial driver BAC limits, and FUI (flying under the influence). That's nuts, says the court. South Dakota's DUI law stands, and stood in 2013, when the cops picked up Mundy-Giedd for DUI.

p.s.: If our South Dakota Supreme Court can see the sense of looking beyond the exact text of a statute muddled by possible error, will our federal Supreme Court muster the same good sense in resolving King v. Burwell and rejecting a similarly devious effort to serve selfish ends by wreaking legal havoc with narrow interpretation?

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An eager reader reminds me that the Supreme Court has agreed to hear King v. Burwell, the selfish conservative effort to sabotage of the premium tax credits offered under the Affordable Care Act. (Recall that King v. Burwell was the case the federal government won in circuit court. Companion case Halbig v. Burwell, which selfish conservative jerks won, was vacated and will be heard by the full Fourth Circuit this week.) At stake is nothing less than exploding costs for policyholders and chaos in the health insurance market in the 36 states that have not set up their own health insurance exchanges:

If the IRS rule is invalidated — and absent effective contingency planning — a state that has declined to create its own exchange probably won't be able to stave off the immediate destabilization of its insurance market. The Court will probably release its opinion in late June; its decision will take effect 25 days later. At that point, if the challengers prevail, the U.S. Treasury will probably have to stop issuing tax credits to users of federal exchanges. Enrollees who are unable or unwilling to pay the full cost of their insurance premiums could see their coverage terminated, perhaps as soon as 30 days after they fail to make a payment. Those who retain insurance are likely to be sicker than those who drop coverage, which will skew the risk pools and expose insurers to large, unanticipated losses [Nicholas Bagley, David K. Jones, and Timothy Stoltzfus Jost, "Predicting the Fallout from King v. Burwell—Exchanges and the ACA," New England Journal of Medicine, 2014.12.10].

Republicans could nudge the Court closer to impaling the ACA on its own wording by crafting real replacement legislation to minimize the impact of overturning King v. Burwell. Republicans may slobber over the prospect of killing Obamacare, but they surely don't want to price millions of Americans out of their health insurance and hit their insurance company friends with heavy losses.

A good Supreme Court, however, will not let any political maneuvers push it closer to a naked political power play and a ridiculous ruling against the common good.


The Supreme Court ruled this morning that corporations can believe in God. I'm looking for the Scripture that says, "Blessed are the corporations...."

The Supreme Court thus ruled that Hobby Lobby and other pious corporations don't have to follow the law that requires employer health insurance policies to include contraception.

Sarah Stoesz of Planned Parenthood wrote in March that contraception isn't a religious issue; it's basic health care:

Since birth control became legal and widely available, women’s health has improved dramatically; the infant death rate has plummeted; and women have been able to invest in their education and careers. Not to mention that increasing access to birth control significantly reduces unintended pregnancy, which in turn reduces the abortion rate [Sarah Stoesz, "Birth Control Is Not a Religious Issue; It Is a Basic Health-Care Issue," MinnPost, 2014.03.25].

Stoesz saw coming this dire precedent: allow corporations to refuse to pay for emergency contraceptives and birth control pills because of their religious objections, and you open the door for corporations who practice Christian Science to refuse to pay for insurance for chemotherapy or antibiotics, for Jehovite corporations to refuse to cover blood transfusions (and maybe even provide legal cover for Jehovites to reassert their opposition to vaccines), and for some fundamentalist corporations to decline to cover any medical treatment other than prayer.

All of this assumes, of course, that a corporation, a legal fiction, a paper construct, can hold religious beliefs, an absurd position, insulting to every religion, that our Supreme Court has now posited as true.


The U.S. Supreme Court ruled in McCullen v. Coakley yesterday that a Massachusetts law prohibiting free-speech activities within 35 feet of the entrance or driveway of an abortion clinic violates the First Amendment.

The buffer zones serve the Commonwealth’s legitimate inter­ests in maintaining public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities. See Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357, 376. At the same time, however, they impose serious burdens on petition­ers’ speech, depriving them of their two primary methods of com­municating with arriving patients: close, personal conversations and distribution of literature. Those forms of expression have historically been closely associated with the transmission of ideas. While the Act may allow petitioners to “protest” outside the buffer zones, petition­ers are not protestors; they seek not merely to express their opposi­tion to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vocifer­ous opponents of abortion, then the buffer zones have effectively sti­fled petitioners’ message [emphasis mine; Chief Justice John Roberts, McCullen v. Coakley, 2014.06.26].

Great. Awesome. From this ruling, we may logically and legally conclude that...

  1. South Dakota's ban on free speech within 1,000 feet of funerals is unconstitutional... as long as the Westboro Baptist Church can restyle its followers as petitioners, not protestors, and gear down from shouting to simply handing out pamphlets and seek to engage in personal, caring, consensual conversations about how God hates fags and killed your son in Iraq because of gay marriage.
  2. Free speech zones outside political conventions and Presidential appearances are unconstitutional. I'm a petitioner, and laws do not trump my First Amendment right to approach the President, nominees for President, political party members, and anyone else attending such events and seek a personal, caring, consensual conversation.
  3. Peddling (petitioning for?) smut at an LGBT Pride Festival within 35 feet of children is perfectly constitutional. As long as smut peddlers aren't blocking the flow of traffic and are speaking in personal, caring tones, they're safe under the First Amendment. Wait... I already knew that... offensive, but constitutional.

I find the notion that the Supreme Court is covering for anti-abortion coercers bothersome. But I can't impugn their First Amendment logic. I will only ask that they extend that logic across the board... and that the beneficiaries of that First Amendment protection respect the civil boundaries the Court assumes petitioners will observe.


The bad news: the U.S. Supreme Court yesterday threw out evidence that helped convict a gang member and a drug dealer.

The good news: the Court ruled that police must get a search warrant to riffle through your cell phone. The enormous amount of personal data available through even the most basic cell phone deserves some protection from search and seizure, says the Court.

The bonus good news: The Court's ruling in Riley v. California recognizes that the absence of "precise guidance from the founding era" requires judges to think hard about new technology and new situations that Jefferson, Adams, et al. never conceived. Chief Justice John Roberts demonstrates that, in this case, our Justices are up to the task:

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy [Chief Justice John Roberts, Riley v. California, 2014.06.25, p. 9].

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13–212, p. 26. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse...

Cell phones differ in both a quantitative and a qualita- tive sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

...Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson [Riley v. California, pp. 16–17].

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is [Riley v. California, pp. 21–22].

The Court says case law offers two justifications for searching an arrestee's person and immediate surroundings: protecting the arresting officers and preventing destruction of evidence. Roberts writes that neither the phone nor the digital data it can access pose a threat to police. Arresting officers can secure any potential digital data mostly by handcuffing the suspect and setting the phone out of reach. The Court recognizes that digital data is still subject to encryption or remote wiping, but granting warrantless search authority does little to prevent those risks:

...the opportunities for officers to search a password-protected phone before data becomes encrypted are quite limited. Law enforcement officers are very unlikely to come upon such a phone in an unlocked state because most phones lock at the touch of a button or, as a default, after some very short period of inactivity. See, e.g., iPhone User Guide for iOS 7.1 Software 10 (2014) (default lock after about one minute). This may explain why the encryption argument was not made until the merits stage in this Court, and has never been considered by the Courts of Appeals.

Moreover, in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other pressing matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away. See Tr. of Oral Arg. in No. 13–132, at 50; see also Brief for United States as Amicus Curiae in No. 13–132, at 19. Cell phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any eventual search of the phone is completed, which might be at the station house hours later. Likewise, an officer who seizes a phone in an unlocked state might not be able to begin his search in the short time remaining before the phone locks and data becomes encrypted [Riley v. California, pp. 13–14].

The Court says that if cops are still worried about the remote chance of remote wiping, they have much simpler options than breaching the Fourth Amendment, like turning the phone off, removing the battery, or putting it in a Faraday bag (hey! I just learned something from the Supreme Court!).

As far removed from 1789 as our cell phones are, the Court still manages to put the question of digital data search and seizure into the Founders' context:

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denounc- ing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886)).

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant [Riley v. California, pp. 27–28].

It's still pretty easy for post-September 11 authorities to get a warrant (15 minutes via iPad, says Chief Justice Roberts on page 26 of the ruling) or to declare the "exigent circumstances" that obviate a warrant. But Riley v. California is a small victory against the police state.


The bare conservative majority of the Supreme Court voted wrong on official government prayer yesterday. In a 5–4 decision on Town of Greece v. Galloway, the Supreme Court ruled that city councils and other legislative bodies may engage in public prayer at their meetings.

The majority ruled that legislative prayer and other religious practices are acceptable if they follow a historical tradition and if the framers of the Constitution would have accepted it. Tradition and framers' approval would also appear to have justified slavery.

The majority said that the question of whether a city council's prayer endorses a particular religion does not matter; a legislative prayer violates the First Amendment only when it coerces people to support a particular religion. Those of us who do not share the majority religious conviction have a different view of what constitutes coercion, but the Justice Anthony M. Kennedy and the Roberts-Alito-Thomas-Scalia theocrats offered us little support yesterday.

Lyle Denniston of SCOTUSblog summarizes the eight criteria Justice Kennedy's opinion offers for Constitutional legislative prayer:

  1. Prayer can take place in Congress and state legislatures, where citizens are just observers, and in local council meetings where citizens are often active petitioners.
  2. Prayer must be ceremonial: councillors can't do it during the official business portion of the meeting.
  3. Governmental bodies may invite anyone they want to do the prayer, and even pay them (I need to get a gig as a traveling atheist chaplain).
  4. Governmental bodies can't dictate the content of official prayers. The prayers need not be generic.
  5. Governmental bodies may not proselytize, may not require participation, and may not razz those who do not participate (hmm... would that include Rapid City councilman Chad Lewis calling an atheist dissident a bully?).
  6. Government prayers can't attack a particular religion (or lack thereof, I'm assuming), but the city council doesn't have to make an extra effort to bring in prayer leaders of different faiths. If the only people who show up to fluff their faithful feathers are the local Jesus crowd, so be it.
  7. The audience must be mostly adults (there's a different standard of coercion when you're talking to children).
  8. The Court will determine violations of the Establishment Clause only by looking at "a pattern of prayers," not the content of any individual prayer. One overly Jesusy prayer doesn't throw out the practice; challengers to city prayer must demonstrate a pattern of coercion against the unorthodox.

Under these standards, the Rapid City Council and the Meade County Commission can probably continue opening their meetings with their demonstrations of piety. However, Justice Kennedy's opinion reminds us that invocations of deities in public meetings should not be religious chest-thumping:

In rejecting the idea that legislative prayers must be nonsectarian, the Court does recognize a constraint on such prayers, he adds.

“The purpose of legislative prayer is to lend gravity” to sessions where “the divisive business of governing” will take place.

The prayer tradition reflected in [Marsh v. Chambers] permits those delivering the prayers “to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths” [Mark Walsh, "A 'View' from the Court: A Divided Ruling on Prayer, But No Fireworks," SCOTUSblog, 2014.05.05]

While the Town of Greece v. Galloway ruling authorizes official behavior that I find offensive, Justice Kennedy lays out criteria that make that official behavior more tolerable. Prayer from the public podium is not meant to score points with one's gods or voters. Performed properly, it should reinforce the seriousness of the business at hand and seek common ground with all citizens. Those criteria tell me that, even if the Supreme Court isn't going to shut down city council prayers, city councilors should still select their public prayers carefully to subordinate their pious urges to their civic duties and the common good.


The United States Supreme Court removed another safeguard against the influence of big money in elections. In a 5–4 ruling on McCutcheon v. Federal Election Commission, the Court overturned caps on the aggregate limits on how much an individual can contribute to candidates and political action committees. Each of us can still only give $2,600 to a candidate, $32,400 to a national political party and $5,000 to a political committee each year. But the Court said yesterday that limiting an individual to $48,600 in candidate contributions and $74,600 in PAC contributions per cycle is a violation of First Amendment rights.

The majority opinion hinges on a very narrow interpretation of the harm money can do in politics. As Amy Howe of SCOTUSBlog explains, the majority consider limits on campaign contributions acceptable only when such limits prevent quid pro quo corruption. In Citizens United in 2010, the Court held that money itself and the access it buys are not evil; only when contributions act like a bribe, buying specific actions, does the majority accept limits on campaign cash. The aggregate caps, says the majority, do not prevent quid pro quo corruption.

In its narrow focus on corruption, the Supreme Court misses a whole nother realm under which limits can be upheld: maintaining a balance of power within the framework of democracy. Checks and balances aren't just the three-way tug-of-war set up to keep Congress, the President, or the Supremes from becoming tyrants. Checks and balances exist at all levels, among all participants in the social contract. Capping campaign contributions, per candidate and in aggregation, checks the power of a few thousand of America's richest citizens over millions of voters.

Money gives a small minority of Americans louder and stronger voices than the rest of the electorate. We allow loud and vocal minorities to speak up, and often such squeaky wheels get the grease. But we regularly impose limits on free speech to prevent loud and vocal minorities from drowning out other voices. Consider the South Dakota Legislature: their parliamentary procedure sets time limits on speakers and prohibits individual legislators from speaking twice on an issue until all other legislators have had an opportunity to speak once. Such restrictions on speech are not unconstitutional; they are reasonable checks and balances to promote the equal participation of all citizens in the political process.

The Supreme Court failed to apply checks and balances in McCutcheon. Instead, the Court moved away from the constitutional and democratic principle of allowing citizens to do whatever they want within the respectful bounds of the social contract and toward the ugly libertarian-fronting-for-corporatist principle of letting the rich and powerful do whatever the heck they want.


Tuesday night the Sioux Falls School Board invited controversy by expanding its policy to require middle school students to recite the socialist flag-marketing slogan known as the Pledge of Allegiance along with elementary students. But the board declared that high school students are too busy for compelled speech.

Enter Rep. Hal Wick (R-12/Sioux Falls), who hates government mandates except when he doesn't. In his latest bout of Legislative Tourette's Syndrome, Rep. Wick wants the state legislature to order every public and private school student in South Dakota to say the Pledge of Allegiance every school day. No word yet on whether Wick plans to make refusal to pledge a felony, misdemeanor, or grounds for detention.

Stunningly, school board member Kent Alberty, a good Democrat who ran for District 12's Senate seat in hopes of countering Wick's political foolishness, says that if Wick's proposal becomes law, his school district will comply:

Kent Alberty, a school board member, said if Wick succeeds in getting the Legislature to require the Pledge, the district will comply with that. The 5-0 vote included Alberty, Carly Reiter, Todd Thoelke, Doug Morrison and Kate Parker.

“What we did on Tuesday night was to expand a policy that required the Pledge of Allegiance at the elementary schools to include middle schools and to make it mandatory. We also have given high schools, in policy, instructions to either have the Pledge or presentation of the colors or something patriotic at any high school assembly,” Alberty said.

“We expanded the policy. If the Legislature in its wisdom sees fit to pass a law that says it’s required, of course we would follow that” [Jon Walker, "Lawmaker Wants Pledge Recited Daily in S.D. Schools," that Sioux Falls paper, 2013.11.15].

This is Jesus, Kent! Stop forcing kids to say Dad's name and other things in which they may or may not believe. Both Wick's proposal and the policy the school board unanimously approved Tuesday are unconstitutional, as declared in 1943 by the United States Supreme Court in West Virginia State Board of Education vs. Barnette. In that case, some nice Jehovah's Witnesses contended that forcing their kids to pledge allegiance to any flag in school violated their religious rights. (Never mind that the "Bellamy salute," as practiced then in conjunction with the Pledge that Francis Bellamy wrote to sell flags, also looked an awful lot like what kids across the pond wearing swastikas were doing.) The Court jumped over the free exercise argument and went for free speech:

In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that salutes of the type mandated by the West Virginia State Board of Education were forms of utterance and thus were a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to the values set forth in the First Amendment. Writing for the majority, Justice Jackson eloquently stated: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." To underscore its decision, the Supreme Court announced it on Flag Day [Wikipedia, downloaded 2013.11.16].

Oh yeah, did I mention that decision came in 1943, in the middle of World War II? Instead of screaming about taking our country back from godless liberals on the Court, conservatives stood shoulder to shoulder with liberals and went on to beat the Nazis and the Japanese and continue our perfectly healthy Union. So, if i may adopt Republican-style logic, rejecting the Pledge wins wars.

Compelled speech is unconstitutional. Kent, Sioux Falls School Board, instead of embracing it, you should be vowing to do your constitutional duty to fight it. If Wick's madness passes the Legislature, be ready to go to court and lose.


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