SOUTH DAKOTA SUPREME COURT REJECTS REQUEST TO RECONSIDER COMMON CARRIER RULING
PIERRE, S.D. – The South Dakota Supreme Court has rejected Summit Carbon Solutions’ petition to reconsider it as a common carrier.
Summit asked the court to reconsider its conclusion that the company failed to prove its theory that whether a substance is a “commodity” does not turn on its intended use.
But the court rejected Summit’s argument that carbon forever captured and buried underground in North Dakota is a commodity no different than CO2 put to a commercial productive use and did not grant the company‘s request to revisit this issue.
This means that Summit is not empowered to use eminent domain to seize property against landowners’ wishes in South Dakota for its proposed multi-state CO2 pipeline and waste dump.
LEGISLATORS VOTE TO SUBPOENA DEPARTMENT OF REVENUE OFFICIALS REGARDING ALLEGED CRIMES WITHIN THE DEPARTMENT
PIERRE, S.D. (John Hult / South Dakota Searchlight) – The refusal of a state department director to explain what’s changed after a recent vehicle titling scandal sparked a rare subpoena request from a legislative committee on Monday.
Department of Revenue Secretary Michael Houdyshell appeared before the Legislature’s Government Operations and Audit Committee in Pierre to discuss a new software system and other internal control measures he said will prevent further vehicle titling troubles. Two former Revenue Department employees are criminally charged in a fake vehicle-titling scheme, following an investigation into similar allegations against a deceased former employee.
But Houdyshell refused, even during an hourlong, closed-door executive session, to offer details on the new internal controls. Houdyshell cited the criminal prosecutions and the possibility of future lawsuits, and said rules direct practicing attorneys to avoid making public statements about a case.
When the committee reconvened publicly, Sen. David Wheeler, R-Huron, told his fellow committee members that he disagrees with Houdyshell’s interpretation of that rule.
Wheeler and Houdyshell are both attorneys. Wheeler argued that rules barring public statements about a case can’t logically apply to statements offered behind closed doors.
He also said there is no active case involving the deceased former employee, who can’t be prosecuted but whose actions could land the state in a lawsuit.
The senator said it’s a pattern from the executive branch, and one that prevents lawmakers with oversight authority from doing their jobs.
“We need some sort of resolution to this, because this is the answer we always get. It’s occurred in the past when we’ve had controversial matters before this committee,” Wheeler said. “Officials say ‘there’s pending litigation, there’s a threat of litigation,’ therefore there’s no response.”
The committee voted 7-2 to support subpoenas for Houdyshell and Rosa Yaeger, director of the Revenue Department’s Motor Vehicle Division. A subpoena is a legal order requiring someone to offer testimony or produce evidence.
The subpoenas would need approval from the Legislature’s Executive Board.
Lawmakers tried and failed in 2023 to pass a bill that would have granted subpoena powers to the audit committee without that additional step.
The Executive Board is unlikely to be a hurdle in this situation, said its chairman, Watertown Republican Sen. Lee Schoenbeck. He told South Dakota Searchlight he intends to call a meeting for Oct. 29 to discuss the subpoenas.
“I’m going to honor the will of the audit committee,” Schoenbeck said, adding that he’d expect the board’s membership to agree to the subpoenas.
Revenue Department concerns
The Revenue Department’s Motor Vehicle Division has been the focus of legislators since this summer, in light of the behavior of now-deceased former employee Sandra O’Day. O’Day worked for the division for decades. After her death, her family found suspicious financial records that ultimately led the state Division of Criminal Investigation to discover that O’Day had created 13 fake vehicle titles. She’d used them to secure loans, and Attorney General Marty Jackley said earlier this month that the banks victimized by her failure to repay those loans could file lawsuits against the state seeking damages.
Jackley’s latest statements came during a press conference Oct. 9, at which he announced criminal complaints against two other former Revenue Department employees. Lynne Hunsley is facing seven counts for allegedly falsifying a vehicle title, in part to avoid excise taxes, and Danielle Degenstein faces a misdemeanor charge for allegedly notarizing the phony title and for her failure to come clean to law enforcement when confronted.
“I do want to start with a little caveat,” Houdyshell said in the opening seconds of his committee appearance Monday. “Due to pending criminal proceedings and the threat of potential civil litigation, and at the advice of the attorney general, we’re going to be limited as to what questions we can answer today.”
A new system for vehicle and driver licensing in South Dakota should help prevent the kind of criminal behavior uncovered over the summer, he said. The department has also implemented a mandatory ethics training for employees, and has signaled its plans to hire an internal control officer.
That last move mirrors one from the state Department of Social Services. That agency also came under scrutiny recently for the alleged behavior of one of its former employees.
Lonna Carroll allegedly embezzled $1.8 million from the state by creating and approving fraudulent financial support orders for children from 2010 through 2023. Carroll’s jury trial is set to begin in December.
After about 10 minutes of public testimony Monday, Houdyshell and the committee members retired to a closed, executive session.
Closed doors, closed mouths
Sen. Wheeler launched into an explanation of his reasons for wanting subpoenas shortly after the committee reconvened for its public meeting.
The audit committee is supposed to get answers to questions on agency operations, Wheeler said, and it can hold sessions outside the public eye if necessary.
It’s not reasonable to expect lawmakers on the committee to sit on their hands for months or longer, he said, before attending to the business of oversight because of potential legal proceedings.
“We have to find a way for us to be able to do our job at the same time the judicial branch does its job,” Wheeler said. “I think that’s what this route allows us to do.”
Sen. Tim Reed, R-Brookings, wondered what might stop departmental representatives from stonewalling in the face of a subpoena and citing the same rules for public statements from lawyers.
A subpoena could be challenged or modified in court, Wheeler said. If the Legislature’s subpoenas survive a challenge and departmental employees still don’t answer questions, he said, “it’s actually a matter of contempt, which is in itself a class two misdemeanor.”
The two committee members who opposed the subpoenas each expressed doubts prior to the vote. Rep. Drew Peterson, R-Salem, asked Houdyshell if the department intends to wait until every legal matter is finished before explaining new internal controls.
“We cannot delve into the details in this forum until any of the potential litigation has been resolved,” Houdyshell said.
Sen. Dean Wink, R-Howes, suggested the potential to influence the courts is something that justifies waiting for answers.
“I don’t think the Legislature has the authority to supersede the legal process in this situation,” Wink said.
Sen. Jean Hunhoff, R-Yankton, said if all the audit committee can do is nod yes when a department head says “trust us, we’ve got it under control,” committee members may as well stay home.
“It’s not that I don’t trust people, but I don’t trust people anymore,” Hunhoff said. “There’s too many things that have happened in the last couple of months.”
LAWMAKERS AND PRISON OFFICIALS SHUT OUT THE PUBLIC DURING DISCUSSION OF SEPTEMBER LOCKDOWN
PIERRE, S.D. – (John Hult / South Dakota Searchlight) – Lawmakers on an audit committee got a rundown Monday about a weekslong lockdown at the South Dakota State Penitentiary in Sioux Falls, but every word that hadn’t already appeared in state prison press releases was spoken behind closed doors.
Department of Corrections Secretary Kellie Wasko spent about 10 minutes of the state’s Government Operations and Audit Committee in Pierre walking through 12 pages of slides on the lockdown and alleged contraband uncovered.
The committee moved to go into executive session to discuss “juvenile matters” as well as an undefined set of “personnel and contractual matters” as soon as Wasko finished her prepared remarks. Public boards, commissions and local governments are required to abide by open meetings laws when entering executive session, but the Legislature is exempt.
Sen. Reynold Nesiba, D-Sioux Falls, began to ask a question before the body moved to close its doors. Rep. Ernie Otten, R-Tea, cut him off.
“We’re going to hold all questions until we go into executive session,” Otten told him.
After an hour and 20 minutes of executive session, the committee gaveled back in for less than two minutes and fielded two comments.
“I’m confident to say that everything that I’ve heard, and that is being done, is being done for inmate safety, staff safety and community safety,” said Rep. Drew Peterson, R-Salem.
Otten said he seconded the sentiment.
“It has been very informative, and I’m glad that we do have the personnel that we’ve got that are rectifying these problems,” Otten said. “So from the bottom of my heart, thank you.”
It’s unclear how much of the executive session was devoted to discussions of the lockdown.
This summer, under questioning from the same committee about outbreaks of violence at Mike Durfee State Prison in Springfield, Wasko said she would be willing to give committee members the “nitty gritty” of security incidents once the DOC finished investigating, but only behind closed doors.
She also said at that point that she doesn’t believe she needs to answer to the state’s Corrections Commission, a board of lawmakers and citizens empowered under state law to advise the department on correctional and criminal justice issues. She would repeat that assertion at a commission meeting a few weeks later.
At the Capitol on Monday, Wasko walked through information the DOC shared when the agency began transitioning its Sioux Falls facilities off of lockdown status earlier this month. Wasko showed photos of tattoo guns, bags of trash and a bag of loose tobacco, as well as images of weapons fashioned from fiberglass, nail files and bits of metal, and tools from prison shops allegedly found in the possession of inmates outside the shops.
Sweat lodge issue draws attention of Oglala Sioux Tribe
Wasko’s Monday public comments did not address the teardown of the penitentiary grounds’ three sweat lodges. DOC spokesman Michael Winder told South Dakota Searchlight that the teardowns were temporary and undertaken for the same reason the lockdowns began: as a preemptive search for contraband.
The sweat lodge situation drew the ire of Oglala Sioux Tribe President Frank Star Comes Out last week. The president sent a letter to Penitentiary Warden Teresa Bittinger on Thursday to request a meeting about why and how the sacred religious spaces were removed, and the actions the DOC intends to take to preserve the right to worship and a timeline for rebuilding the lodges.
Star Comes Out suggested that the religious liberty of Native American inmates had been unfairly – and perhaps unlawfully – upended.
“The sweat lodge is a vital component of the religious and spiritual practices of the Lakota Oyate (people),” Star Comes Out wrote. “The removal of these sacred structures during the lockdown has raised significant concerns within our community, particularly given the legal protections afforded to Native American inmates who practice traditional religious and spiritual ceremonies under federal law.”
Star Comes Out cited the American Indian Religious Freedom Act of 1978, which preserves the right to worship for Indigenous inmates.
Star Comes Out also requested a separate meeting with Lakota inmates, and requested that Sen. Shawn Bordeaux, D-Mission, be in attendance. Bordeaux is the current president of the Corrections Commission.
Winder, who did not immediately return a request for comment on the sweat lodge letter on Monday, wrote earlier that the lodges will be rebuilt, and then blessed by a medicine man.
Reached during a committee break on Monday, Sen. Nesiba said he could not discuss what happened in the closed session and echoed the comments of Peterson and Otten.
He did offer, however, that he believes parts of what was discussed could have been addressed during the public portion of the meeting.
GOVERNOR JIM PILLEN HOLDS PRESS CONFERENCE TO ADDRESS MISINFORMATION REGARDING ABORTION PROCEDURES IN NEBRASKA
LINCOLN, NE (KOLN) – Campaign ads on TV from the two supporting abortion initiatives set to appear on Nebraska’s ballot in November sparked a press conference from the governor.
Tuesday afternoon, Gov. Jim Pillen, joined by Timothy Tesmer, the chief medical officer for the Department of Health and Human Services, among other healthcare professionals, spoke at the State Capitol about what they called “misinformation” being spread around Nebraska.
That misinformation: that abortion procedures are illegal for physicians to perform even in the life-threatening instances of miscarriage and ectopic pregnancy.
“We want to make sure Nebraska women know the truth,” Pillen said. “I want to make sure all women in Nebraska know they can get proper and professional medical care in our state when dealing with a miscarriage or ectopic pregnancy.”
Pillen and others said that TV ads, along with physicians not fully understanding the current law, has created this confusion that could be harmful to Nebraska women.
At the start of the conference, Pillen addressed that while the two competing initiatives have helped cause this confusion, this press conference was not meant to address either.
In response, Protect Our Rights, a pro-choice group that has been the leading advocate for the initiative that would lengthen the amount of time one can seek an abortion, held their own virtual press conference.
In it, patients who had experienced miscarriages shared their experiences in seeking such treatments. Physicians also spoke about how only allowing certain procedures when a patient’s life is in danger is not in the best interest of anyone.
“Pregnancy is risky,” Dr. Emily Patel, a maternal-fetal medicine specialist, said. “We as healthcare providers need to be able to educate our patients about options, and that includes abortion care. People die in pregnancy, and even when they don’t, they can have severe consequences.”
