Monthly Archives: September 2011

Another twist in a long fight over a deal gone haywire

Kjerstad Realty will get a trial after in its lawsuit first filed in December 2007 against Bootjack Ranch and Pat Trask. That’s what the South Dakota Supreme Court decided this week. Kjerstad originally won a summary judgment, but the Supreme Court in October 2009 decided there should be a trial. Fine, except Circuit Judge Merton Tice retired in January 2010, before the matter could be tried. Then the case was placed temporarily in the hands of Circuit Judge John Delaney, and Delaney informed the parties he would hand it off again after Tice’s successor was named. Judge Delaney continued to handle the case, eventually ordering the defendants in May 2010 to produce certain documents. Kjerstad also wanted attorney fees because of the delay, and a month later Judge Delaney agreed, ordering the defendants to pay $2,660. The case eventually was assigned to Circuit Judge Wally Eklund that summer. That didn’t work so well for Kjerstad, because Judge Eklund ruled in summary judgment for the defendants on Sept. 22, 2010. While the parties said they were ready to go to trial that day, the judge said he wasn’t. A trial date was set for Feb. 15. But before they could try the case, Judge Eklund ruled the one-year time limit had expired on the case after the Supreme Court had remanded it for trial, and the judge ruled in favor of the defense. Now the Supreme Court says Judge Eklund failed to account for the “good cause” exemption in the one-year limit. The justices unanimously decided the case should go back, yet again, for trial.

The whole tangle goes back to a 2006 agreement in which Bootjack Ranch owner Patricia Hanson entered a one-year contract with Jerald Kjerstad to list the 6,385-acre ranch in Pennington and Meade counties for sale at a listed price of $3,658,000. The contract provided a 5 percent commission if the sale was made in the one-year period or within 180 days later if the sale was to someone who had been shown the ranch during the one-year window. Jerald Kjerstad passed away, and the responsibility was passed along to another member of Kjerstad Realty, Ron Ensz. Hanson agreed in January to reduce the listed price to $3.1 million. Then things got sticky. Hanson took the ranch off the market that January and the contract was terminated, but the sides disagreed on how the 180-day window applied and to whom. A neighbor, Patrick Trask, eventually bought the ranch about five months later for just under $3.1 million. Kjerstad Realty sued for commission and other expenses, although Ensz didn’t physically show Trask around the ranch. Hanson however did invite Ensz and Trask to her birthday party at her home so they could talk. Trask arrived with flowers and an ice cream cake. Trask already leased part of the ranch and was a friend of Hanson. The Supreme Court ruled that summary judgment wasn’t appropriate because facts needed to be found at trial on whether Kjerstad Realty substantially performed in order to qualify for the commission.

A friendly voice leaves the radio

John Gordon has broadcast Minnesota Twins games on the team’s radio network since the 1987 season. That year the Twins went to the World Series and won. It was the first of two championships during his years as a voice of the Twins, working first with Herb Carneal and for the past 11 seasons with Dan Gladden. The game Wednesday night, a 1-0 win over the Kansas City Royals in the bottom of the ninth inning, was the last for John Gordon. At age 71 he’s retiring from the booth. If you follow the Twins, his voice was a constant these past 25 seasons, filling the speaker as you worked on the lawn during a weekend or drove into the night. The victory Wednesday in the last game of the regular season meant the Twins avoided a 100-loss year.  Only once in the 51 years of the franchise had the Twins lost more often. The season wasn’t what anyone expected, and no one probably has all the real answers about why things went so far off track for a team that’s been a constant as the class of its division in the American League for many years. There was a glimpse of that potential as Carl Pavano went nine innings without allowing a run Wednesday night and Denard Span delivered with a pinch-hit double with one out. The game-winning single by Trevor Plouffe with two outs drove Span home with the decisive, and only, run of the game. “Hey, how about that!” John Gordon exclaimed. The game lasted just two hours and seven minutes of actual playing time. There was a tribute to John beforehand, and during the post-game broadcast the emotions cracked through as all understood this was his final night. “Touch ’em all, Twins fans, you are the best,” he said. “So long…” As they say, back at you.

Redistricting map becomes available Wednesday evening

The Legislative Research Council completed its detailed work and has the final redistricting map now available on the main page of its Internet site ( The placement of the numeral for District 3, smack over the city of Aberdeen, is unfortunate, but there might be no better way to position it. You need to look at the detailed maps for the Rapid City and Sioux Falls districts, and there is a detailed map too for District 3, which comprises most of the city of Aberdeen. To get the maps in public form, the LRC needed about 24 hours after the completion of work by the redistricting committee. These maps form the final recommendations to the Legislature for the special session on Oct. 24. The new districts will be used for the 2012 through 2020 elections. House Speaker Val Rausch originally said he didn’t expect to take public testimony on the maps during the one-day special session, but after Tuesday’s meeting he said the House might meet as a committee of the whole for a public hearing. That is a rarely used process where the entire 70-member House of Representatives sits as a committee in the House chamber. If that’s the process to be used, the Senate will need to decide whether to hold a hearing of its own or accept the testimony presented in the House.

Committee adopts redistricting map

The Legislature’s redistricting committee just voted 10-3 to adopt the map submitted by House Speaker Val Rausch, R-Big Stone City, and Senate Republican leader Russ Olson of Wentworth, with two amendments. There is the Gosch amendment that keeps Day County whole (see below post) and the Fargen amendment that keeps Rep. Frank Kloucek, D-Scotland, in his current base. The map, known as Option A, can be found on the Legislative Research Council’s Internet site ( under the interim section; at this time it doesn’t reflect the Gosch and Fargen amendments yet.  The final version of the map with the amendments will be introduced for approval by the full Legislature in the Oct. 24 special session. The new boundaries will apply for the 2012 through 2020 legislative elections. According to Sen. Corey Brown, R-Gettysburg, the new plan would cause two Democratic primaries between incumbents five Republican primaries between incumbents.

Redistricting panel makes Brown, Day decisions

The Legislature’s redistricting committee moments ago adopted an amendment from Rep. Brian Gosch, R-Rapid City, that would keep Day County whole as part of the northeast District 1. The amendment also splits Brown County across three districts, rather than the current two. Brown would have a district that covers most of Aberdeen, while four northern and western precincts would be joined to the District 1 counties of Marshall, Day and Roberts. The third Brown district would link all of Hamlin, all of Clark, most of Spink (minus the southwest precinct) and about two-thirds of  rural Brown County. Rep. Mitch Fargen, D-Flandreau, said Brown County might lose legislative clout rather than gain. The ultimate decision will be made Oct. 24 by the full Legislature in special session, but the outcome of today’s committee work will be the map that is submitted. The committee’s chairman, House Speaker Val Rausch, R-Big Stone City, said there won’t be public testimony during the special session.

Shuffling the deck for Supreme Court districts

The Legislature on Oct. 24 will be resetting the boundaries of its 35 election district but will also be changing the lines for the state Supreme Court’s five districts. The map that was submitted by the court is probably the one the Legislature will follow. The Legislature ought to consider re-numbering the districts too. It makes no sense to have District 1 in the Black Hills and District 2 in Minnehaha County, while District 3 stretches through the state’s middle belt, District 5 covers the entire top third and District 4 is clustered in the southeastern quarter.

As for the new map:

District 1 would diminish in geographic size from five counties to four. Pennington, Lawrence, Meade and Custer counties would remain, but Fall River County would be jettisoned to District 3.

District 2 would be solely Minnehaha County, and the portion of Lincoln County that’s been in District 2 would be reunited with the rest of itself in District 4.

District 5 would pick up Deuel and Hamlin counties from District 3.

District 3 would get Brule, Lyman and Tripp counties from District 4.

When the music stops, here’s what we think the proposed new map shows:

District 1: Custer, Lawrence, Meade, Pennington;

District 2: Minnehaha;

District 3: Fall River, Shannon, Bennett, Jackson, Haakon, Todd, Mellette, Jones, Stanley, Tripp, Lyman, Hughes, Sully, Brule, Buffalo, Hyde, Hand, Jerauld, Beadle, Sanborn, Miner, Kingsbury, Lake, Moody, Brookings;

District 4: Gregory, Charles Mix, Douglas, Aurora, Bon Homme, Hutchinson, Davison, Hanson, Yankton, Turner, McCook, Clay, Union, Lincoln; and

District 5: Harding, Butte, Perkins, Ziebach, Dewey, Corson, Potter, Walworth, Campbell, Faulk, Edmunds, McPherson, Spink, Brown, Clark, Day, Marshall, Hamlin, Codington, Deuel, Grant, Roberts.


Drug-testing for TANF? Florida thinks so, McCaffrey doesn’t

The state of Florida is facing a challenge from the American Civil Liberties Union over a new law requiring drug tests for public-assistance recipients. Meanwhile Barry McCaffrey, who headed the White House Office of National Drug Control Policy during the second half of the Clinton administration, thinks it’s the wrong route to helping people get treatment, according to comments made recently at a Florida event. In South Dakota, the Legislature gave serious consideration to a random-testing program this year. The state Department of Social Services would have been authorized to establish such a screening program for recipients of temporary assistance to needy families (TANF) under legislation introduced by Rep. Mark Venner, R-Pierre. After some committee and floor amendments, HB 1152 fell short in the House of Representatives, failing on a 32-36 vote.

Democratic leader doesn’t like GOP redistricting

Does legislative redistricting matter in South Dakota? Democratic state-party chairman and executive director Ben Nesselhuf of Vermillion is charging foul today about the Republican map submitted by House Speaker Val Rausch of Big Stone City and Senate Republican leader Russ Olson of Wentworth. But the numbers during the past two decades suggest boundary lines might not matter as much as fielding quality candidates.

Currently in the Legislature there are 79 Republicans, 25 Democrats, and one independent who sits among the Republicans. The new boundaries they will draw for districts in the Oct. 24 special session will be used for the 2012 elections through 2020. Here’s a look at the relatively recent past.

In the 1997-98 term, there were 70 Republicans and 35 Democrats. In the 1999-2000 term, there were 73 Republicans and 32 Democrats. In the 2001-2002 term, there were 74 Republicans and 31 Democrats.

After the 2001 redistricting, the 2002 elections used new boundaries. In the 2003-2004 term, there were 75 Republicans and 30 Democrats. In the 2005-2006 term, there were 76 Republicans and 29 Democrats. In the 2007-2008 term, there were 70 Republicans and 35 Democrats. In the 2009-2010 term, there were 67 Republicans and 38 Democrats.

Those numbers show Democrats were losing seats in the Legislature before the 2001 redistricting that took effect for the 2002 elections. The Democrats’ trend of losing seats continued through the 2004 election. Then Democrats had one of their best elections in years during 2006 when they climbed back to where they were in 1997-1998.

The Democrats’ rebound continued in the 2008 elections when they took Republicans below the 70-seat mark. But a number of prominent Democrats walked away from the Legislature rather than run again in 2010. Some sought statewide office, such as Nesselhuf, who left the state Senate to run for secretary of state.

The net effect however was that Democrats sank to their lowest point in many years, holding just 25 seats after the vote-counting was done in 2010.  Rather than build on their 2006 and 2008 gains, Democrats stumbled badly in 2010. Consequently they entered the 2011 redistricting process in a weaker position.

Three legislative redistricting maps submitted

If you prowl deep enough into the Legislature’s Internet site ( under the interim section you’ll find the list of maps being used for the redistricting process. There are now three statewide proposals on the list. One of them, or some variation, probably will be the model sent by the redistricting committee to the full Legislature for the Oct. 24 special session, when the new boundaries will be drawn for electing lawmakers in 2012 through 2020.

One of the proposals comes from former state Rep. Bill Thompson, a Sioux Falls Democrat who took a strong interest in the redistricting process throughout his time in the House of Representatives. Another comes from Rep. Mitch Fargen, D-Flandreau, and this likely will be viewed as the Democratic minority’s offering. Fargen serves on the redistricting committee, as do House Speaker Val Rausch, R-Big Stone City, and Senate Republican leader Russ Olson of Wentworth. Rausch and Olson submitted a map that in all likelihood is the Republican proposal. With Republicans in control of the committee and both chambers of the Legislature, the Rausch-Olson map in all likelihood will be selected or will be the basis for what’s sent to the full Legislature.

Is Rausch-Olson a fair and reasonable plan? Unfortunately the three statewide maps don’t have population, voting-age and party-registration numbers attached, so in that respect the statistical analysis has to wait. Assuming the map colors accurately reflect the proposed new districts, there would be some unusual variations under Rausch-Olson.

There is a light-blue district that covers 10 counties — Campbell, McPherson, Walworth, Edmunds, Potter, Faulk, Hand, Jerauld, Aurora and Davison — and part of an 11th county in southwest Spink. It seems improbable to put all of these together based on their populations; most likely there are two districts in this giant group and the same color was used. Currently the counties of Campbell, McPherson, Walworth, Edmunds, Potter, Faulk and Hyde comprise District 23, where the three legislators are Republicans: Sen. Corey Brown of Gettysburg, Rep. Justin Cronin of Gettysburg and Rep. Charles Hoffman of Eureka. It looks that perhaps Hand and southwest Spink are being switched in and Hyde is being removed. Meanwhile District 20 currently covers Davison and Aurora, where three Republicans hold the seats: Sen. Mike Vehle of Mitchell, Rep. Lance Carson of Mitchell and Rep. Tona Rozum of Mitchell. My guess is the light-blue on the map covers both of these current districts.

Beadle County would no longer be split between two districts under the Rausch-Olson plan. Instead Beadle and Kingsbury would form a district. The current District 22 would be dismantled, with Jerauld and Hand being split off to the west. District 22’s current legislators are Sen. Tom Hansen, R-Huron; Rep. Peggy Gibson, D-Huron; and Rep. Jim White, R-Huron. Rural Beadle County meanwhile has been part of the current District 6, which also covers Kingsbury, Clark, Hamlin and rural Codington. Under Rausch-Olson comes a very different new district that, as proposed, would cover Clark, Hamlin, most of Spink, southern Brown and southern Day counties.

The northeast is where the jigsaw becomes truly complex. Brown County would become represented by three legislative districts under Rausch-Olson. An Aberdeen district would be created, while northern Brown would join Marshall, northeastern Day and Roberts. Based on traditional family and farming and schooling and voter-registration patterns, this splitting of Brown in three directions might actually make sense.

Another unusual new alignment would shift Hanson and McCook counties into a more-rural group to the west and away from their current connection in District 25 to Minnehaha County. Hanson and McCook would be joined with Douglas, Hutchinson and the northern half of Bon Homme counties.

One district that wouldn’t change much under Rausch-Olson is District 8. The composition of Moody, Lake, Miner and Sanborn counties would remain the same. Its three legislators are Olson, Fargen and Rep. Patricia Stricherz, R-Madison. All of Moody would be within the district under the Rausch-Olson proposal.

Watertown would remain as a legislative district unto itself within Codington County under Rausch-Olson, and likewise for Brookings within Brookings within Brookings County. Rural Brookings, rural Codington, Grant and Deuel counties would form a new district under the Republicans’ plan; currently rural Brookings, Grant and Deuel are part of a district with part of Moody.

Lawrence and Yankton counties would remain as stand-alone districts under Rausch-Olson.

Where would Hyde County go? It would be placed with Hughes, Stanley and Sully. Those three currently comprise District 24 where the Republican legislators are Sen. Bob Gray of Pierre, Rep. Tad Perry of Fort Pierre and Rep. Mark Venner of Pierre.

The boundaries within Minnehaha and Lincoln counties and within Pennington County would be redrawn under all of the proposals. Those changes would come at the precinct levels. Minnehaha would become part of nine districts, up from eight currently, while Rapid City would stay part of four.

The redistricting committee, which Rausch chairs and Olson co-chairs, meets Tuesday (Sept. 27) and possibly Wednesday if needed. The meeting at the state Capitol starts at 9:30 a.m. Tuesday.

Supreme Court finds deep flaw in rape law

The state Supreme Court this week overturned convictions on two third-degree rape charges and ordered a new trial because of a change in rape law made by the Legislature in 1985. At issue is whether the accused knew or reasonably should have known the other person was too intoxicated to give consent. The changes made by the Legislature 26 years ago removed the requirement that the intoxication had to be administered by the person accused of rape or someone in cahoots with the person accused of rape. In doing so, the Legislature left unwritten whether the person accused of rape has to be shown to have known the reputed victim was incapable of giving consent. The Supreme Court this week ordered that Christopher Jones receive a new trial in the 2008 matter. Chief Justice David Gilbertson dissented, saying the court’s majority was imposing its opinion over the Legislature. Gilbertson points to legislative history suggesting the Legislature had three opportunities but didn’t add the knowledge requirement. He further states that until this decision the court has consistently declined to read additional requirements into a law and there wasn’t reason to do so in this case. Justice Steve Zinter also dissented, agreeing with Gilbertson on many points and further noting the Legislature never required knowledge that a person was too intoxicated to give consent.