Art Rusch

The 2021 session of the South Dakota Legislature wrapped up on March 11. However, the Legislature will still be returning for “veto day” on March 29 if the governor vetoes any bills. So far we haven’t heard that she has vetoed anything but there are lots of rumors about what she may or may not veto.

Last week I wrote about SB112 which I prepared and filed. This bill requires that the Governor obtain the advice and consent of the Senate before appointing replacements for the Constitutional Officers (the Secretary of State, Attorney General, State Treasurer, State Auditor and Commissioner of School and Public Lands). SB112 has been passed by both houses of the legislature but I have still not received any word as to whether the Governor intends to sign the bill into law or not.

One of the big issues before the Legislature during the final week was SRD (Senate Resolution of Disapproval) 901 which would have disapproved the governor’s plans to combine the Department of Agriculture and the Department of Environment and Natural Resources. Such a combination would not go into effect if either house of the Legislature disapproved the combination by a majority vote.

The Senate had a strenuous debate on that issue on March 8, but the resolution failed by a vote of 17-18 or one vote. There was a notice of an intent to ask for a reconsideration of that vote but apparently the proponents of 901 couldn’t find the one more additional vote so the motion for reconsideration was never brought up.

Another big issue last week was HB1100. This bill was introduced at the request of the governor to slow down and modify the effect of IM26, the medical marijuana initiated measure. The Senate refused to go along with the governor’s version of 1100 without significant changes that we felt would have demonstrated to the voters that we had heard them and were trying to work toward medical marijuana. The amended version of HB1100 passed the Senate by a vote of 29-6 but the governor and the House were not willing to go along with the Senate’s proposed changes so 1100 was killed and IM26 should go into effect on July 1, 2021.

During the final week of the session most of the usual committee work has been completed and there is a lot of waiting around for the Appropriations Committee to finish their work and come up with an appropriation bill for us. The ideal is to come up with a spending proposal that is agreeable to the Senate and House and to the Republicans and Democrats. They generally reach a compromise agreement although the Republicans would like to see less spending and the Democrats would like to see more.

This year, due to the unusual amount of federal COVID dollars that came to South Dakota, the state appears to be flush with cash and we are apparently going to be appropriating over $5 billion dollars. However, this will not be a re-occurring event so the state needs to be cautious about spending money particularly if it locks the state into ongoing spending programs.

The Senate passed several bills on March 8 that I disagreed with and over which I foresee future difficult legal problems. Two of those bills were actually killed by the Judiciary Committee but were resurrected in a procedure called the “smoke out” and then passed by a majority of the Senate.

One of these bills was the “open fields” legislation which was brought at the request of Governor Noem. This bill changes the long time federal and state rule of law that law enforcement officers can search an open field at any time but need a search warrant or permission for a search of a home or outbuildings. There are over 100 years of law interpreting and explaining this rule of law but HB1140 will requires game wardens to obtain a search warrant or else the permission of the landowner to search or even do game license checks on private property including open fields.

This bill was defeated in the Judiciary Committee unanimously but was smoked out to the floor of the Senate. After a lengthy debate, it passed there by a vote of 21-14. However, in order to get HB1140 passed the supporters stripped out all of the penalty provisions – in other words there are no consequences for a violation of this policy but I am sure that judges who are hearing poaching cases will hear the argument that since the legislature has said that game wardens can’t search on private property, that the evidence found there can’t be used in court.

The other bill that was killed in the Judiciary Committee but was brought back to the Senate floor by a “smoke out” was HB1212 which specifies when a person with a gun can use deadly force. The proponents claimed that it was just a clarification of existing South Dakota law but it isn’t. It is a significant change from existing South Dakota law and is pretty much an adoption of Florida’s law. It abandons more than 100 years of precedents and defining law in South Dakota and creates a number of situations where a person with a gun can use deadly force based on presumptions – assumptions that are based on the law, not on the facts. I believe that this changed law could result in some difficult situations.

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