Legislature Adjourns Thursday; Gosch Tested for COVID-19
The last regular day of the 2020 Legislative Session was Thursday, March 12th, with Monday, March 30th reserved for consideration of gubernatorial vetoes. On Wednesday, Rep. Spencer Gosch was reported to have fallen ill, and his illness worsened overnight. Gosch, who serves as Speaker Pro Tempore (basically, the Vice-Speaker of the House) and who represents District 23 (Campbell, Edmunds, Faulk, Hand, McPherson, Potter, Spink, Walworth Counties) is being tested for COVID-19 (Coronavirus), with results expected today.
House Passes County Zoning Bill Despite Constitutional Questions
Once again showing that where the desires of Governor Noem and industry are concerned, an oath to uphold the constitution is swept aside, Representatives passed Senate Bill 157 Monday on a 45-22 vote. See how your Reps voted HERE.
SB 157 is an industry bill that undermines local decision-making on the County permitting process, and it may face constitutional challenges on both state and federal levels. Section 23 of our state constitution prohibits the state from legislating county and township affairs, which is likely why most legislative attempts to change the zoning process over the past several years have been to provide “options” for counties rather than imposing mandates, as this bill does.
Additionally, this bill’s provision to make losers of a court appeal pay attorney fees of the winner (unless it’s the county who loses) may be problematic from a federal constitutional standpoint. South Dakota already has provisions for losers to pay in the case of a “frivolous” suit, so there was no clear reason for the provision except to financially threaten those who would consider an appeal.
A last-minute House floor amendment changed the required vote for a Conditional Use Permit (CUP) from a simple majority of members “present & voting” to a simple majority of members of the body–a positive change, but one that still takes away counties’ authority to set a super majority vote on CUPs, which many counties currently use.
Dakota Rural Action is in discussions with members and stakeholders about potential courses of action to remedy the effects of this local control-gutting bill.
Senate Rushes Passage of HB 1199–Riot Booster “Fix”
House Bill 1199 was originally a bill about electrical utilities, and passed both its House committee and the House floor earlier in session. When it showed up in Senate Commerce & Energy Committee last week, it was stripped of its contents and entirely new language inserted as a way to “fix” problems in the Governor’s Riot Booster bill–including removing all references to the undefined term “riot boosting.”
During his Senate floor pitch, sponsor Lee Schoenbeck claimed the bill as an amendment to HB 1117 (the Riot Booster bill). One of the changes this bill brings is a complete removal of the term “riot boosting,” which has no history in the law. Additionally, in Section 3, the bill removes “otherwise damaged third parties” from those by whom a legal action for riot or incitement to riot can be brought (limiting that to the state or political subdivisions).
However, the very next sentence seems to contradict, saying that “The state, a political subdivision, or any third party having an interest in preventing a riot or incitement to riot may enter into an agreement to establish joint representation of a cause of action under § 20-9-54” [Previous section establishing who is liable for riot & incitement to riot]. What this seems to suggest is that a third party can still participate in, and benefit from, legal action–and it seems to suggest they can participate in legal action to “prevent” riot or incitement to riot–which may be highly problematic from a free speech standpoint.
House Bill 1199, as originally introduced, was about annexation of territory by municipal electric utilities, and it passed the House in that original form. Because the bill was hoghoused in Senate Committee (entirely stripped of its content, so the riot booster “fix” language could be inserted), once it passed the full Senate, it had to go back to the House for concurrence (agreement) with the amendments made. Unfortunately, there is no audio of those proceedings, but the concurrence vote was a highly unusual non-party-line vote. You can see how your Reps voted on concurrence with the hoghouse amendments HERE.
Both Riot Booster (HB 1117) and the “clean-up” bill (HB 1199) are on the Governor’s desk for her signature, but serious questions remain about how “cleaned up” the bills are, and whether they, as is claimed, protect free speech and the right to protest, or simply continue to protect a pipeline company with a disastrous track record of accidents, leaks, and spills.
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