Monthly Archives: January 2013

A footnote to U.S. Sen. Heitkamp’s election

Basin Today is an excellent institutional magazine published by the big utility cooperative that supplies much of the electricity to our region’s rural customers. The latest issue contains a wonderful piece of political insight about what might have been a decisive factor in the election last November of Democrat Heidi Heitkamp to the U.S. Senate over Republican U.S. Rep. Rick Berg in North Dakota. Heitkamp had been a long-time member of Basin’s board of directors. Basin has been embroiled in a tough and very expensive haze-rule dispute with the EPA. She might now be the best-established advocate for rural electricity in Congress. And in a great bit of telling detail, the magazine notes that Rick Berg announced his concession to Heidi Heitkamp the morning after Election Day, just 15 minutes before the start of the Basin board’s November meeting. Her election could carry effects for rural America that reach far beyond the North Dakota borders.

Hunhoff seeks to restrict gun rights of mentally ill

House Democratic leader Bernie Hunhoff of Yankton today filed HB 1188 which calls for determining whether mentally ill people are dangerous and then prohibiting their access to firearms if they are. The legislation has strong bipartisan support including from some of the Legislature’s strongest gun-rights advocates such as Sen. Tim Begalka, R-Clear Lake. The bill would require the director of the state Human Services Center to determine, before a patient is discharged from state custody, whether the person is dangerous and submit a report to the Yankton County state’s attorney. The state’s attorney in turn would draft a petition for circuit court and seek a closed-door hearing before the Yankton County board of mental illness solely about the dangerousness of the person. The person would have legal counsel and would have the right to testify and call witnesses and examine witnesses and offer records and examine records. The board’s findings, if the person is determined to be dangerous, would be submitted to the state Attorney General’s office. The attorney general would forward the determination of dangerousness to the FBI to be entered into the national instant criminal background check system. All persons who legally sell firearms would have access to the information. The dangerous person would be prohibited from purchasing a firearm, and people would be prohibited from selling firearms to a dangerous person. The dangerous person could appeal the board’s finding to circuit court. The dangerous person could later apply to circuit court for reinstatement of rights to purchase a firearm after five years but would need to show he or she hadn’t committed a crime, other than a motor vehicle violation, and  hadn’t been involuntarily committed to a mental health facility during those five years. South Dakota is one of a handful of states without these provisions, according to summaries compiled by the National Conference of State Legislatures. The measure also would make it a crime for another person to loan or give a gun to the dangerous person. The lead Senate sponsor of the Hunhoff bill is Republican Craig Tieszen, a retired Rapid City police chief.

The state boxing commission that never was

Anybody remember the 2009 law that created the South Dakota Boxing Commission? Well, the law expired June 30 last year — without then-Gov. Mike Rounds or current Gov. Dennis Daugaard ever appointing the commission’s five members, according to state Sen. Mark Johnston, R-Sioux Falls. Johnston and Rep. Dean Schrempp, D-Lantry, are trying to resurrect the commission with SB 84, which would create the South Dakota Athletic Commission. Schrempp was prime sponsor of the 2009 legislation. Sen. Corey Brown, R-Gettysburg, said it “disturbs me to no end” to hear what happened. Brown offered an amendment that calls for the Legislature’s leadership to appoint four of the five members. An emergency clause was suggested by Sen. Larry Lucas, D-Mission, because the bill likely will need a two-thirds majority anyway. Lucas was asked by the hearing chairman what part of the bill requires the two-thirds majority. Replied Lucas, “I’m anticipating a veto.” The Daugaard administration opposes the bill. The Senate State Affairs Committee then recommended the bill’s passage and voted to send it to the full Senate . The committee’s chairman, Sen. Larry Rhoden, R-Union Center, recalled carrying the Schrempp bill in the Senate four years ago. Rhoden said he was “quite frustrated” by the two governors’ refusal to appoint the commission.

Public meetings by texts and emails? w/second update

State open-meeting laws might stay abreast of digital technology with HB 1113. The legislation, up for hearing by the House State Affairs Committee this morning, would require public access to messaging used for conducting a public meeting via digital texts, Internet chat rooms or e-mails. The legislation is a product from the open-government task force last year.

UPDATE: David Bordewyk of the South Dakota Newspaper Association said such meetings have occurred throughout the nation in recent years. He said most e-mails of public officials wouldn’t be covered. “It’s a very important bill,” he said. The state Attorney General’s office also supports it, according to chief deputy A.G. Charlie McGuigan. He said the office has advised public boards they can’t skirt the open-meeting laws and some local governments have already adopted similar policies. “This brings us in line with the rest of the country and it addresses technology,” McGuigan said. No opponents testified.

SECOND UPDATE: Rep. Brian Gosch, R-Rapid City, asked how a text message would be kept for a year as required in the legislation. Another question came from Rep. Kristin Conzet, R-Rapid City, who asked who will decide what can be deleted, such as a query about who wants to go get a sandwich. Another question comes from Rep. Jon Hansen, R-Dell Rapids. There seems to be a general undercurrent of skepticism among the committee members. The chairman, Rep. David Lust, R-Rapid City, asks whether a text between two members of a city commission during a public meeting would be subject to public knowledge; Venhuizen said notes passed between two board members at a public meeting haven’t been regarded as a public record. Venhuizen said a text or email shared between all board members would. Via Rep. Peggy Gibson, D-Huron, the city attorney raises a question about a text to arrange a public meeting. “I see this as a friendly amendment,” Gibson said.  Venhuizen said it is “a good idea” and Bordewyk agreed. Her amendment was adopted, and a clean-up amendment was added to remove an extraneous word. The final version was recommended for passage by the committee 7-6. “The city of Brookings addressed this probably seven or eight years ago by the council,” Rep. Scott Munsterman, R-Brookings, said. He previously was the city’s mayor. Gosch said the legislation is “potentially problematic” because of the requirement for text storage and he said it’s “potentially very intrusive” in a person’s private texting string. “I think there are potentially unintended consequences,” Gosch said. Lust’s aye was the decisive vote.

A saga of great success and deep misfortune

It is easy to mock the ambitious, the wealthy, the strivers. It is easy, too, to be fascinated by the details of their lives. The state Supreme Court released to the public yesterday its opinions in the Schieffer v. Schieffer divorce case. Kevin and Carmen certainly packed a lot of living and a lot of animosity into a little time as a couple. They knew each other since 1999, he living in Sioux Falls and she living various places in the world primarily New York City. He was a lad from Yankton who climbed through the office ranks of then-U.S. Sen. Larry Pressler in the 1980s to become chief of staff, adding a law degree along the way. While in Pressler’s office he helped steer federal aid to a struggling railroad line across central South Dakota. Then through the influence of Pressler and South Dakota Republican Party insider Ron Schmidt he received federal appointment as U.S. attorney for South Dakota. From there he went to the front office of the Dakota, Minnesota and Eastern, the railroad he had helped, and he launched an incredibly big gamble to expand the DM&E into a coal-hauler linking the Powder River Basin fields to the Midwest. He and then-Gov. Bill Janklow engaged in fierce, deeply personal political struggles over the railroad’s attempt to use eminent domain to drive its way through western South Dakota. Ultimately the rail project fell through and the DM&E was purchased by Canadian Pacific. Along the way he became a millionaire and, in 2007, the same year of the DM&E sale, she became pregnant.

She signed a pre-nuptial that guaranteed her at least $1 million and as much as $5 million in the event of a divorce. Kevin and Carmen married on Sept. 22, 2007. The next month, Canadian Pacific completed the deal. He stayed with the operation for the next year. Their daughter was born March 6, 2008, needing heart surgery that kept the child and mother in New York City for five months. The child also had Down syndrome. Carmen and their child moved to Sioux Falls. In 2009 Carmen was pregnant with a second child. That October, after just a year in Sioux Falls in the same household with Kevin, she told her husband she was moving back to New York City for the sake of their daughter’s therapy. He fought it. That December she filed a court claim for maintenance, custody, child support and permission to relocate. He filed a counter-claim citing the prenuptial agreement. As they fought through 2010, their son was born that May. Their divorce trial occurred that November, and the trial judge delivered the final decision in July 2011. She received nearly all of the $5 million amount from the pre-nuptial agreement. Tom Welk of Sioux Falls was the lead attorney representing Kevin, while Linda Lea Viken of Rapid City was the lead attorney for Carmen.

Carmen wanted more than the trial judge, Douglas Hoffman, awarded her in child support, however, and appealed to the Supreme Court. This week the five justices upheld the trial court in general, including denial of $370,000 in her attorney fees. But two justices — John Konenkamp and Steve Zinter — filed partial dissents, saying there wasn’t a legal barrier prohibiting the trial judge from giving her more than the maximum amount of $2,815 in South Dakota’s child-support grid. In addition to the $2,815 Kevin was also made 95 percent responsible for many other costs for the children, including his daughter’s medical and therapeutical needs. The Supreme Court calculated those additional costs will come to $15,010 or more per month, to be paid by Kevin.

There is so much sadness in this tale from real life. During her first two years of life, their daughter wasn’t allowed by her mother to have any playmates and wasn’t allowed to be with other children from Kevin’s side of the family. Carmen thought therapy was much more important. The trial court determined Kevin’s annual income was $2,115,080 and Carmen’s was $105,080. In New York City, Carmen had been a vice president for an international insurance and investment company before they married. The Supreme Court in its decision this week said the following: “Simply because Carmen spent excessively during the parties’ marriage does not mean that Kevin must maintain that standard of living following their divorce, especially given that Kevin objected to Carmen’s spending during the marriage and given that the parties’ young children’s actual needs do not correspond with such an opulent standard of living.”

In the end, both Kevin and Carmen filed claims against each other for the attorney fees each side faced for the appeal, too. Kevin claimed $11,030.05 whle Carmen claimed $29,910.78. The Supreme Court concluded neither one should pay the other’s.

The new and interesting blog by Sen. Stan

State Sen. Stan Adelstein, R-Rapid City, is blogging. Based on what he’s written so far this month, I highly recommend it. His multi-part (short parts, intentionally) story of South Dakota’s adoption of the 24th Amendment to the U.S. Constitution is fascinating.

He’s at http://way2gosd.com/ on the Internet. So far it’s more than worthwhile.

On term limits, an additional limit is offered

If anybody understands how term limits can be sidestepped by South Dakota’s legislators, Sen. Bill Van Gerpen would certainly be one. In the 2012 elections, his legislative district’s voters gave the see-ya to two of the longest-serving lawmakers. In a Republican House primary, Sen. Jim Putnam, R-Armour, lost. He had served 26 consecutive years, rotating between the House and the Senate. In the November general election Van Gerpen, R-Tyndall, won the Senate seat by toppling Rep. Frank Kloucek, D-Scotland. Kloucek had served 22 consecutive years, switching back and forth between the House and the Senate. Kloucek was at the Capitol the other day for the Delmont community celebration, and he pointedly denied that he and Putnam ever cut any deals to switch at the same time. Somehow, though, it worked out that way. Kloucek never served more than one term in a row in the House, while Putnam never served more than one term in a row in the Senate.

Now Van Gerpen offers the Legislature an opportunity to address whether legislators should be allowed to continue to move back and forth between the chambers so freely. The South Dakota Constitution limits legislators to no more than four consecutive terms in the House and no more than four consecutive terms in the Senate, but the constitution is silent on how long legislators can consecutively serve overall. Van Gerpen has introduced Senate Joint Resolution 4. It proposes adding this line to the constitution: “No person may serve more than sixteen consecutive years in the Legislature.” (The term limits, by the way, already don’t apply to terms for which legislators have been appointed.)

Does the Van Gerpen amendment stand a chance of making the 2014 statewide election ballot? He doesn’t have much in the way of legislative heavyweights on his resolution, but he does have the two other members of his legislative district, Rep. Stace Nelson, R-Fulton, and Rep. Kyle Schoenfish, R-Scotland, among the 10 co-sponsors. There aren’t many current legislators who could be immediately affected (also, it’s unclear whether the 16-year limit would cover years already served prior to the change if it is passed). One who comes to mind is Sen. Larry Rhoden, R-Union Center, who is in his thirteenth consecutive year and would be eligible for one more term if the amendment was adopted by voters and if he ran again in 2014 and won — which is likely, because he always wins. To reach the ballot, Van Gerpen’s resolution would need majority votes in the Senate and then in the House of Representatives. The governor doesn’t get a say on legislative resolutions.

Term limits definitely have changed the Legislature’s operations since 1992 when voters installed them in the constitution. Many people wonder whether the Legislature would be more effective if term limits were repealed. Many people also wondered why voters in Van Gerpen’s district kept re-electing Kloucek, who was great at constituent relations but had difficulty getting bills passed. That was their choice. As for Putnam, he had a way of getting things done quietly through the relationships he’d built through the decades. Keeping him in office was their choice, too. No one seems to wonder why the voters in Rhoden’s district keep electing him. He is one of the Legislature’s most effective members. While in the House, he was the Republican leader, and in the Senate he is chairman of perhaps the most powerful committee, State Affairs. Van Gerpen’s resolution aims directly at a rare situation that the voters eventually decided for themselves, in part by electing him over Kloucek. Whether fellow legislators want to cap someone such as Larry Rhoden at 16 years will be worth watching in the coming weeks.

Bank merger sought

The state Division of Banking has under review a proposed merger sought by First National Bank in Philip. First National wants to fold Farmers State Bank of Faith into its operation. The public comment period closes Feb. 23. After that, banking director Bret Afdahl will have 15 days to make his decision. The applicant in turn would have 15 days after the director’s decision to request a hearing by the full Banking Commission.

Delay in next stage of Strong v. Gant

Friday, March 22, is the new date for the latest hearing in the Strong v. Gant case. House Speaker Brian Gosch, R-Rapid City, is seeking attorney fees and other costs from Stephanie Strong of Rapid City. She brought a lawsuit against Secretary of State Jason Gant in an attempt to remove Gosch from the 2012 election ballot because he notarized the signature of a person carrying his nomination petition. Circuit Judge Kathleen Trandahl ruled against Strong in December. Gosch subsequently filed a motion for recovery against Strong. Meanwhile legislation that would prohibit candidates from notarizing their own petitions has passed in the state House of Representatives and is up next in the Senate.