South Dakota legislative round-up: 5 items you missed this week
Tie votes, more Julie Frye-Mueller drama, and the person behind the Senate
PIERRE, S.D. — Two weeks remain in the nine-week legislative session, and many milestones sit in the rearview: revenue estimates, Crossover Day, a choice in the great tax cut race and more.
Though the kumbaya spirit between lawmakers was to be expected early on in session, the cohesion has remained in place, a marked difference from the past few years, several lawmakers said.
“The legislature has gone through at least six years of dysfunction, because we didn't have that kind of relationship between the bodies,” said President Pro Tempore Lee Schoenbeck, of Watertown. “I’m nearing the end of my candle here, but I'm just saying I'm really happy with seeing the people we have here and the work that they've done.”
Here are five things you may have missed this week in Pierre.
Tie games and reconsiderations
When the vote for House Bill 1217 was displayed atop the South Dakota House of Representatives on Feb. 21, it marked a session first: a 35-35 tie in the 70-person chamber.
The bill, brought by Rep. Scott Odenbach, of Spearfish, would have narrowed the scope of absentee voting in the state — requiring specific reasons for voting absentee and shortening the period from 46 to 30 days. It also would have banned absentee ballot drop boxes.
Some lawmakers and advocacy groups slammed the idea as an attack on free elections.
“Elections are central to our democracy and to our government’s legitimacy. Restricting who is eligible to cast an absentee ballot limits the ability of all South Dakotans to participate in democracy,” Samantha Chapman, the ACLU of South Dakota’s advocacy manager, wrote in a press release about the bill.
Odenbach rejected that claim.
“Those were scare tactics,” Odenbach said. “They had no basis in what the bill did. We would still have absentee voting, and 30 days to do so.”
Upon the tied vote, a failure since the outcome did not reach the majority needed for a bill to pass the chamber, Odenbach made a “motion to reconsider,” which was placed on the calendar for consideration on the following legislative day, requiring a majority vote to take another vote on the failed bill.
“Motions to reconsider get a lot more common because we are dealing with what I will call true final disposition. It's getting to be too late in the session to reintroduce an idea or even to amend it to make it more palatable,” said House Majority Leader Will Mortenson, of Pierre. “So I think they're an appropriate tool when someone is within a vote of passage.”
During debate over a motion to reconsider, comments are severely limited to the reason for reconsideration and cannot deal with the merits of the bill.
In this spirit, Odenbach stood and promised the chamber he had some “really excellent points” to make in the event a reconsideration was approved.
“I don’t think I’ve seen anything that should warrant reopening debate on this,” Rep. Tyler Tordsen, of Sioux Falls, said in response.
To which Rep. Fred Deutsch, of Florence, retorted, in full: “I have seen the remarks, thank you,” earning scattered laughs in the chamber.
The motion failed 39-30 and the bill was tossed into the legislative waste-basket; it was the first of two razor-thin margins for Odenbach’s bills this week, with his idea for a “Center for American Exceptionalism” losing on a 46-23 vote Wednesday, one shy of what was needed for a two-thirds majority.
Proposal seeking more prison time for violent offenders nears final passage
Senate Bill 146, brought by newcomer Sen. Brent Hoffman, of Sioux Falls, would be a major change to how South Dakota deals with its violent criminals; if passed, it would in most cases do away with the possibility of parole for major violent felonies, with at least 85% of the sentence served for the named crimes and 100% of sentence served in many cases.
Following a Feb. 22 hearing in front of the House Judiciary Committee, where it succeeded by a 7-6 margin, the change heads to the House of Representatives.
Opponents argued that the proposal would be shortsighted for several reasons, namely that it would lead to the most violent offenders going directly from prison to an unsupervised release.
“This bill actually leads to less supervision for the worst offenders,” Justin Bell, a lobbyist with the South Dakota Association of Criminal Defense Lawyers, said during the committee hearing.
Hoffman took issue with this argument.
“Nothing in this bill precludes earning credit for good behavior, earning privileges and seeking treatment prepared through transition to the outside,” he told Forum News Service. “That system within prison is unchanged and available. If we felt that parole was the panacea to our problems, why are our recidivism rates in violent re-offenders off the charts?”
Rep. Tim Reisch, of Howard, who spent a career in law enforcement, including as secretary of the corrections department under Gov. Dennis Daugaard, was a major opponent of the bill in committee.
“The fact is, the length of sentences, these big sentences, really don't serve as deterrents,” Reisch said. “Many studies have proven that the best way to reduce recidivism among criminals is through the use of a combination of prison programming, transitional services and parole.”
Still, proponents on the committee felt the change was needed to address a proportional rise in violent crimes as South Dakota’s metropolitan areas continue to grow.
According to Hoffman, some of the concerns broached to him by the Department of Corrections included the potential overcrowding.
However, with new prisons on the horizon and the potential law only applying to crimes committed beginning in July 2023, Hoffman felt the system had the ability to gradually adapt, especially with a reduction in the state prison population in recent years.
The House will debate the measure on Monday, Feb. 27.
A Julie Frye-Mueller flare-up
With a few weeks of radio silence since the dramatic fallout from an apparent incident between Sen. Julie Frye-Mueller, of Rapid City, and a staffer with the Legislative Research Council, onlookers may have thought the saga was over.
A press conference on the afternoon of Feb. 23 held by about a half-dozen lawmakers, led by Sen. Tom Pischke, of Dell Rapids, announced plans to file a lawsuit against all 27 senators who had voted to suspend Frye-Mueller from the body prior to a full investigation.
Pischke claims these lawmakers violated a state law making it a misdemeanor to “intentionally, by intimidation or otherwise,” prevent any lawmaker “from giving his vote upon any question which may come before such branch, or from performing any other official act.”
“As lawmakers, we need to adhere to the law and not think that we're above the law,” Frye-Mueller said. “And what we have seen here was not appropriate at all.”
Pischke and Mike Mueller, Frye-Mueller’s husband, showed reporters dozens of copies of sworn affidavits signed by South Dakotans supporting the lawsuit; a website allows anyone to download and sign this affidavit “to protect your rights and Julie’s.”
Throughout the proceedings earlier this session, senators referred to Gray v. Gienapp, a 2007 South Dakota Supreme Court Case that raised the question of whether a circuit court had the power of, “prohibiting the Senate from proceeding with a disciplinary hearing of a member.”
The Court rejected the prohibition, writing that the Legislature is the sole judge of the “qualifications of its members” and the “rules of its proceeding.” Many lawmakers see this as settling its authority on the matter.
“She should be embarrassed and, once again, she ignores the law that expects the Senate to deal with perps like her,” President Pro Tempore Lee Schoenbeck, the top lawmaker in the Senate, told reporters about the threatened lawsuit. “She and her bully friends need to go away and leave our decent workers and citizens alone.”
Still, that South Dakota Supreme Court decision was relatively narrow, agreeing with the attorney general at the time that, “whether the ultimate product of the Senate may be subject to review … need not be decided by this Court.”
Whether there can be any judicial remedy after Senate action, then, might be a question to consider, although punishing lawmakers for a vote taken in their official duties would be an unprecedented decision.
Senate secretary keeps chamber rolling
If you’ve listened in on any meetings of the Senate this session, you’ve heard the roll call — “Beal … Bolin … Bordeaux … Breitling,” and on down the list through the 35 members.
For 10 years, those words have been spoken by Kay Johnson, the secretary of the Senate.
“When I retired, I thought, ‘Maybe I should just work for the Legislature for a year or two to kind of get into retirement,’ and I'm still here,” she told Forum News Service.
Prior to keeping rhythm in the Senate, Johnson, who lawmakers call “Boots” after her similarly sounding maiden name, spent 35 years with the South Dakota Retailers Association.
Outside of the session, she’s an avid bridge player and jokingly complained that the intricacies of state government had interfered with her thrice-per-week games.
The House clerk, the Senate secretary and the myriad other support staff aiding lawmakers in committees and chambers may rarely make headlines, but they are a key part of keeping the bodies on time and on task.
“She helps us see around corners,” said President Pro Tempore Lee Schoenbeck, of Watertown. “I stop by her office at least twice every morning before session to say, ‘What do I need to know, how do I not screw up?’ And she's always got the answers.”
In the Senate, the secretary works closely with the Majority Leader, President Pro Tempore and the lieutenant governor, who serves as the Senate’s presiding officer.
Matt Michels, who served as President of the Senate for eight years under Gov. Dennis Daugaard — the final five of those years coinciding with Johnson’s first years as Senate secretary — spoke highly of the support staff who handle the nonpartisan details of following and recording legislative happenings in accordance with the state’s constitution and code.
"’Boots’ is the embodiment of so many people who over the years dedicate their time to ensure our Legislature runs well,” Michels said. “These people don't do it for the small amount of compensation, but rather they enjoy service to our state and the elected representative process.”
No really, what is a newspaper?
It’s no secret that the news industry is changing: anyone can read this story online right now.
But what hasn’t changed much in decades is the codified definition of a newspaper.
It must contain “reports of happenings of recent occurrences of a varied nature;” it must “maintain a definite price of not less than fifty percent of its published price, and shall be paid for by no less than fifty percent of those to whom it is distributed;” and at least “distributed in either a printed or electronic format, or both, at least once each week for at least fifty weeks each year;” among several other requirements.
The main benefit to being a legal newspaper comes in the form of publishing “legals” — government notices that offer a revenue source to local newspapers.
“It's a flat-out subsidy that I think is important because the press is so critical to a functional government,” Senate President Pro Tempore Lee Schoenbeck, of Watertown, said during a hearing over Senate Bill 178.
Senate Bill 178, which was deferred to the 41st legislative day by a 5-4 vote on the Senate Commerce and Energy Committee, was (probably) the last in a series of bills and amendments this session attempting to alter the paid nature of distribution at the core of a legal newspaper.
In its final version, the bill created a legal category known as a “twenty-first-century newspaper,” which, among other requirements, would have to maintain 500 paid online subscriptions and print at least 750 newspaper copies, though these papers could be freely distributed.
Meeting this requirement would allow the printing of government notices in any county in which an office is maintained.
Justin Smith, a lobbyist with the South Dakota Newspaper Association, took issue with the idea that the current stock of newspapers was not “twenty-first century,” and worried that digital outlets would compete with small-town weeklies, many of them family businesses.
Still, the question is not going away, and lawmakers say they plan to work with the different interests over the interim to come back with some sort of update to the legal code.
“We’re going to work with the new outlets and the newspaper association, they’re interested in that,” Sen. Casey Crabtree, of Madison, who backed the change in front of the Senate committee, said. “I think we’re going to come back from the interim with some sort of change.”
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or firstname.lastname@example.org.