SECOND COMMANDER AT ELLSWORTH AIR FORCE BASE REMOVED FROM DUTY DUE TO BOMBER CRASH

BOX ELDER, S.D.- Ellsworth Air Force Base has fired a second commander in just two months.

In an Ellsworth AFB press release, Lt. Col. Carsten Stahr was relieved from duty Sept. 11 by Col. Derek Oakley. Stahr was commander of the 28th Force Support Squadron at Ellsworth AFB.

Stahr was relieved of command “due to the loss of trust and confidence in his ability to lead the squadron,” according to the news release.

On January 4, 2024, an Air Force B-1B Lancer crashed at the base during a training mission. Four crews ejected before the crash. One crew was treated at a local hospital with non-life threatening injuries.

In July, the U.S. Air Force released a 58-page report which was critical of the crew involved. The plane was a complete loss with an estimated cost of $456 million.

Another Ellsworth AFB commander was relieved of his duties in August after the crash report was released. Col. Mark Kimball was relieved “due to a loss of trust and confidence in his ability to command.”

Although adverse weather conditions substantially contributed to the mishap, the crew lacked situational awareness to adjust to changes in local wind direction during landing, according to the report. Ineffective crew communication also contributed to the crash.

 

VOLUNTEERS WORKING TO REPLACE TREES AT McCOOK LAKE LOST IN THE FLOOD

NORTH SIOUX CITY, S.D. (KTIV) – McCook Lake, South Dakota continues to recover following devastating flooding in June.

The Izaak Walton League is in the process of replacing trees damaged by flooding. Three years ago, the Izaak Walton League planted 719 trees bought from the state of South Dakota. After the flooding in June, all but one tree was destroyed.

Siouxland Bobcat donated a tree spade, and a bobcat, to help the Izaak Walton League move trees from a heavily wooded area to the open field where the 719 trees used to be.

So far, with the help of volunteers, they’ve moved 23 cedar trees. However, the Izaak Walton League wants to relocate roughly 100 trees to make a better habitat for the wildlife in the area.

“Because they’re all up in the heavily wooded area, they’re very small, skinny and tall,” said Renae Hansen, with the Izaak Walton League of McCook Lake.” They’re fighting for the light, so getting them out here in the open will really give them a good start.”

The next steps for the Izaak Walton League are to have a sample of the soil approved to refill holes the flooding created on Northshore Drive and Penrose Drive.

 

GOVERNMENT DEPARTMENTS ARE TIGHTENING INTERNAL CONTROLS FOLLOWING ALLEGED CRIMES BY STATE EMPLOYEES

PIERRE, S.D.(Joshua Haiar / South Dakota Searchlight) – Two state departments victimized by the allegedly criminal behavior of some employees said Monday they are implementing reforms, including a full-time internal control officer and an anonymous tip line for employees.

During a meeting in Pierre with the State Board of Internal Control, officials from the Department of Social Services and the Department of Revenue outlined the new measures.

“We have been inspired to rethink our internal controls, ensuring they are more robust and frequent,” Social Services Secretary Matt Althoff said.

A former employee allegedly stole $1.8 million from the department’s Division of Child Protection Services over a 13-year period. She allegedly submitted financial assistance requests for children in the state’s care, intercepted the checks, deposited them into an account she controlled, and transferred the money to her personal account.

The former employee, Lonna Carroll, is charged with aggravated grand theft.

Althoff said new measures include stricter supervisory approval processes, such as a two-person protocol to ensure no single employee has unchecked control over financial transactions. Another addition is the appointment of a full-time internal controls officer, a role created to continuously monitor and refine the department’s processes.

Similarly, the Department of Revenue is taking steps to address internal vulnerabilities after a former employee allegedly used her position to create 13 fake vehicle titles, which she then used to secure approximately $400,000 in loans. That employee, Sandra O’Day, has since died. Another former Department of Revenue employee is being investigated for separate but similar allegations, according to The Dakota Scout.

Kristen Jasper, chief legal counsel for the Department of Revenue, discussed the department’s new efforts.

“Internal controls are a living document,” Jasper said. “They need to be constantly reviewed and updated as things change.”

Initiatives include an anonymous reporting system that allows employees to report suspicious activities without fear of reprisal. Additionally, the department has ramped up its internal training programs, and is looking to hire a full-time internal controls officer like the Department of Social Services.

Meanwhile, Althoff said he would look into setting up an anonymous tip line for his department.

The Board of Internal Control reviewed recent state audit findings and updates on various departments’ internal controls.

The 2023 audit highlighted weaknesses in the Department of Social Services. It found inadequate controls over the payment of claims, allowing the same individual to both initiate and approve transactions without a secondary review.

The legislative Government Operations and Audit Committee has said it will meet in October and December to review the alleged criminal activity in both departments.

 

NEW REPORT SHOWS THERE ARE DEFICIENCIES IN THE DEFENSE AVAILABLE TO SOUTH DAKOTANS WHO CANNOT AFFORD AN ATTORNEY

PIERRE, S.D. (John Hult / South Dakota Searchlight) – A just-released report on South Dakota’s public defense system identified many of the same “structural deficiencies” outlined in a similar report 47 years ago.

The nonprofit Sixth Amendment Center released its state-funded study Monday. The report was released just under a week after the state announced its hiring of the Unified Judicial System’s first statewide public defender, Christopher Miles. He will run the first state-level public defense office and lead a team of attorneys who will handle appeals to the state Supreme Court by “indigent” defendants — those who can’t afford an attorney. Counties will remain responsible for providing lawyers for those defendants prior to their appeals.

The state’s longstanding practice of delegating the management and funding of public defense to counties hamstrings the state’s ability to provide effective representation to those who can’t afford it, the report says.

Tying public defense to counties “results in counties funding indigent defense systems at levels they can afford instead of at levels that meet the counties’ indigent defense needs.”

The report also suggests that counties stop sending bills to people who use public defenders, set standards for public defenders and adopt a uniform advisement of rights for defendants, and that state lawmakers should fund the Commission on Indigent Services well enough to allow it to enforce state standards.

The last major review of the state’s public defense system, undertaken in 1977, concluded that “while it is not impossible, it is difficult to be an effective yet aggressive defender lawyer in South Dakota.”

The 2024 report says, “Based on our evaluation, we believe this remains an apt description of indigent defense in South Dakota.”

The report was undertaken at the behest of the Commission on Indigent Defense. That group was created in 2023 at the urging of state Supreme Court Chief Justice Steven Jensen, and a comprehensive review of indigent defense practices was among its initial recommendations. Lawmakers also signed off on creating the state office of public defense a year later based on the commission’s findings, setting a $1.5 million budget for the seven-person office.

“This report includes a thorough, and sometimes candid, look at some of the current challenges the state faces as it seeks to fulfill the constitutional obligation to ensure the right to counsel for indigent people who are facing the prospect of jail or prison,” Chief Justice Jensen said in a press release on the report.

South Dakota early adopter of public defense

The Dakota Territory established a right to counsel for those who couldn’t afford it in 1868, 95 years before the right was extended nationwide by the 1963 Supreme Court decision in the case of Gideon vs. Wainwright.

In 1879, pre-statehood lawmakers ordered counties to pay “reasonable and just compensation.” South Dakota became a state ten years later.

Current U.S. Supreme Court case law directs states to shoulder the responsibility of ensuring legal defense. South Dakota delegates public defense costs to counties, which creates difficulties and disparities from place to place, the report says. Paying public defenders through local property tax dollars, particularly for smaller, rural counties, has been a burden since the state last looked at the issue.

“Because the state did not make changes to the structure of the indigent defense system in response to the 1977 report, the right to counsel issues that existed nearly 50 years ago have been passed down, institutionalized, and inherited to present day,” the report says.

Costs have risen in recent years, as well. The total cost for indigent defense statewide jumped from $18.2 million in 2018 to $21.5 million in 2022.

It’s not just the overall cost that impacts counties, the report says, but the unpredictability of costs. One or a handful of major felony cases with high defense lawyer costs are enough to throw county budgets, it says. In Hughes County, the number of cases with court-appointed attorneys fell 7.6% over the report’s six-year study period, but the cost increased 27.4%. County revenue grew 3.6% in that time frame.

Fall River County had to dip into its contingency fund to pay the state-set hourly rates for public defense.

Part of the cost increase is tied to a shortage of rural lawyers. Nearly 70% of the state’s attorneys live in Minnehaha, Pennington or Hughes counties, meaning lawyers willing to take contract cases in counties without dedicated public defenders’ offices – every county save Minnehaha, Pennington and Lawrence – often need to travel from their home cities to visit clients and appear in court.

When lawmakers passed the bill creating the statewide public defender’s office, they also allocated $3 million to reimburse counties for public defense costs. The amounts disbursed to each county were announced last week. They’re based on counties’ public defense costs and range from $310 for the county with the lowest costs (Harding) to $915,000 for the county with the highest costs (Minnehaha).

Suggestions: Set state standards, consider ditching cost reimbursement

The report does not recommend that the state switch to a state-funded system for public defense, however.

Instead, it trains its recommendations on smaller adjustments that could improve the delivery of legal services to indigent defendants.

The report found inconsistencies in how judges explain the right to an attorney, for example. For counties with public defender’s offices, an attorney represents people at their initial appearances and bond appearances. In most other counties, those appearances tend to be the venues where a person is advised of their right to an attorney.

“Despite giving the defendant the opportunity to request an attorney, in most magistrate courts no attorney is present and available to accept court appointments at initial appearance,” the report says.

There is no standard advisement of rights at the state level. The report recommends adopting one, as there are some inconsistencies in what defendants hear from judges in the early stages of a case. There are also inconsistencies in determining who’s eligible for a public defender, as there is no state standard for what financial factors make a person eligible.

“As a result, a judge in one county may find a person indigent and provide counsel, but a judge in a different county may find that same person not indigent and deny them counsel,” the report says.

State law allows counties to charge indigent clients for attorney services after a case has ended, but judges vary in how they explain that to defendants. No judges advised defendants of the state-set hourly rate for attorney fees they’d be expected to pay back after the case during courtroom visits by Sixth Amendment Center researchers.

Defendants typically aren’t aware of the total cost of their representation at the time of their sentencing, even though liens can be placed on their property to pay them.

The report recommends that the state consider ending the practice of fee reimbursement. Tying representation to costs changes the dynamic between clients and their attorneys in ways that could impact their rights.

“During this evaluation, appointed attorneys across the state reported that recoupment impacted their ability to adequately represent their clients because the cost of representation dictated the attorney-client relationship and decisions on the case,” the report says.

Stop pretrial negotiations with defendants who have no lawyer

There are also counties where a magistrate judge – the kind of judge who sets pretrial bond conditions in both felony and misdemeanor cases – allows prosecutors to meet defendants and negotiate a plea before the defendant has a chance to request a court-appointed attorney.

“Sometimes referred to as a ‘preconference,’ this meeting occurs off the record and without defense counsel. There is no state law or court rule that governs this practice,” the report says.

One researcher with the Sixth Amendment Center observed a defendant tell a judge he had a head injury and “could not remember much” after the judge explained his rights to him and others in a group message at the start of a hearing. Even so, he took a plea deal that day on two misdemeanor charges, with no defense attorney present, even after he repeated that he had no memory of the incident.

The report recommends ending the practice of negotiation between prosecutors and clients who’ve not yet had the chance to request a lawyer.

The Commission on Indigent Defense, the report says, should be funded by the Legislature at a level high enough to allow it to do oversight, and the commission should work to set statewide standards for effective public defense.

 

SOUTH DAKOTA’S FOOD TAX REPEAL MEASURE Q&A

SIOUX FALLS, S.D. (Stu Whitney / South Dakota News Watch) – Sophie Stoffers carried groceries to her car in a Sioux Falls Hy-Vee parking lot and pondered a question from a reporter.

Would Initiated Measure 28, an effort on the Nov. 5 ballot to eliminate South Dakota’s sales tax on food, make life better for her?

“I’m always a fan of saving money,” said Stoffers, 24, who recently moved to Sioux Falls and works as an assistant athletic trainer at Augustana University. “But I don’t know much about (the measure). I need to hear the pros and cons before voting.”

According to U.S. Department of Agriculture data, an average family of four in South Dakota spends about $1,200 a month on food purchased at a store and prepared at home. Eliminating the 4.2% tax on food would save that household $50.40 a month, or about $600 a year.

Stoffers and her boyfriend have noticed grocery bills ticking upward. She’ll glance at the receipt on the way out of the store and try to cut back on nonessential items.

But that’s a long way from breaking down the ramifications of a sales tax cut on consumables, especially with differing viewpoints of what IM 28 will do.

Opponents pounced on the wording of the measure as broader than just groceries. They said it could cause a budget crunch by preventing the state from collecting sales tax on “consumable” items such as tobacco, toothpaste and toilet paper.

Estimates for the loss of state revenue range from $124 million to $646 million annually.

From a consumer perspective, national data shows that while the rate of inflation on food has softened, the price of grocery staples such as beef and eggs increased by 3.2% over the past year.

“This is the right thing to do,” said Rick Weiland, co-founder of Dakotans for Health, the petition-gathering group whose tax repeal effort was certified for the ballot with 22,315 signatures.

Assessing that statement means wading through a litany of factors, from legal language and tax policy to the ongoing conflict between a Republican-led Legislature and progressive groups that pursue policy change through citizen initiatives.

Here are the most pressing questions surrounding IM 28 as the November vote approaches:

What’s the argument for grocery tax repeal?

Supporters call the measure a long-overdue effort to take the tax burden off low-income families and individuals. South Dakota and Mississippi are the only states that fully tax food without offering credits or rebates.

The basic premise for eliminating the grocery tax is to make it easier for people to put food on the table within the constraints of their household budget.

“The tax is quite regressive,” Anna Phillips, an analyst at the Center on Budget and Policy Priorities in Washington, told News Watch. “If you look at the percentage of household income spent on groceries, low-income earners spend roughly double the percentage of their income that high-income earners do on groceries. So this is going to make more of a meaningful difference to families who are currently struggling to get by.”

Feeding South Dakota, the state’s largest hunger relief organization, estimates that about 106,000 people in South Dakota, more than 11%, are food insecure, which means they lack reliable access to enough affordable, nutritious food. Of that number, 1 out of 6 are children.

Has grocery tax repeal been tried before?

South Dakota’s grocery tax has been a target of legislative reform for decades, mostly by Democrats.

In 2004, the South Dakota Democratic Party gathered enough signatures to put a state food tax repeal on the ballot after legislative attempts to eliminate the tax fell short.

Opponents of the effort, including then-Gov. Mike Rounds, warned that passing the repeal would likely reduce the amount of state aid available for schools and health care.

Voters responded to that message and rejected the measure by a margin of 68% to 32%. Later attempts by state legislators to lower the tax on food or exempt groceries from the general sales tax rate also failed.

Weeks before being re-elected in November 2022, Republican Gov. Kristi Noem made a public pledge to preside over “the largest tax cut in state history,” a full repeal of the grocery tax. She vouched for its affordability and noted that voters might pass the repeal if lawmakers didn’t.

But legislators rejected Noem’s proposal during the 2023 session, opting instead to temporarily reduce the overall sales tax rate from 4.5% to 4.2%, with a sunset (or expiration) of 2027.

What’s the main argument against grocery tax repeal?

There are fiscal consequences to eliminating the tax. Sales taxes are the largest source of state government revenue in South Dakota, one of seven states without a state income tax.

Phillips stressed that, while eliminating the grocery tax is a good way to advance racial and economic equity, states should pursue full repeals with caution due to budgetary impacts.

It’s important to remember that state revenue lost from eliminating the grocery tax would be on top of the $104 million estimated annual revenue loss from the overall sales tax cut passed by legislators in 2023.

So the question becomes: Can South Dakota afford to do this without having to cut important programs elsewhere or adding another tax?

Opponents of the measure answer that with a resounding no, citing what they said are ambiguous and problematic wording in the ballot measure.

The specific language of IM 28 prohibits the state from collecting sales tax on “anything sold for human consumption, except alcoholic beverages and prepared food.”

Nathan Sanderson, executive director of the South Dakota Retailers Association, said that wording is so vague that it could prevent the state from collecting sales tax on “consumable” items such as tobacco, toothpaste and toilet paper.

The Legislative Research Council took that a step further in a report to state legislators in July, extrapolating the “human consumption” definition to include propane and motor fuel and services rendered by a plumber or landscaper.

Weiland countered that it was the LRC and attorney general’s office that questioned earlier language in IM 28, which led to the current framework. He called for common sense, saying interpretations of the measure should be shaped by the stated intent of petitioners to target taxes on food and drink.

“You don’t drink gasoline,” Weiland said. “You don’t eat services.”

What kind of budget crunch are we talking about?

Well, it’s complicated.

Not even the LRC, which provides statutory and legal guidance for proposed ballot initiatives, has been consistent on what the impact will be.

Reed Hollweger, who resigned as LRC director during a meeting of the Legislature’s executive board in October 2023, addressed the potential for differing interpretations of “anything sold for human consumption” in a fiscal note sent to the secretary of state as required by law in January 2023.

“For purposes of this fiscal note,” he wrote, “the LRC assumes the phrase only includes food items because of the modifying language ‘except alcoholic beverages and prepared food’ and does not include personal tangible property and services, both of which can also be sold for human consumption. Other assumptions as to the meaning of this phrase may be just as reasonable, if not more so.”

With that qualification, the fiscal note said that the state could see a reduction in sales tax revenue of $123.9 million annually.

Sanderson estimated to News Watch in June that IM 28 would result in a budget downturn of at least $176 million annually because it would include tobacco products, defined in state law as “any item made of tobacco intended for human consumption.”

Then came the kitchen-sink estimate the LRC presented to legislators as an update in July – a worst-case scenario analysis that said the budget impact could soar as high as $646 million annually.

So which number is right?

The official fiscal note produced by Hollweger uses the $123.9 million figure, while Attorney General Marty Jackley’s ballot statement noted that human consumption “is not defined by state law, but its common definition includes more than just food and drinks.”

Jackley’s statement also said that “judicial or legislative clarification of the measure will be necessary.” That’s the one thing that both sides agree upon.

Any judicial review will likely involve trying to find a “harmonious reading” of the conflicting statutes or language, according to Neil Fulton, dean of the University of South Dakota School of Law and former chief of staff to Rounds.

“The goal is to identify the intent of the enacting Legislature, or the people in this instance,” Fulton told News Watch. “Commonly, that’s found from the text alone because it’s free of ambiguity. But if the context or other aspects of the enactment lead to a different reading, or when a statute can be read multiple ways, the guiding star is, ‘What did the people intend?’”

How much of a problem is IM 28’s wording?

Phillips, the policy analyst, said the measure should have stipulated that the tax rate will be changed to 0% rather than saying the state “may not tax” consumables.

Eliminating the tax entirely would likely put South Dakota out of alignment with the Streamlined Sales Tax Project, a cooperative effort of states, local governments and the business community that standardizes collection of sales tax, she said.

“That agreement makes administration easier across states, both for vendors who have to comply with sales and use taxes as well as tax administrators,” said Phillips. “So removing the tax entirely on groceries will take South Dakota out of that agreement, which would be unfortunate.”

South Dakota could also lose revenue from the Tobacco Master Settlement Agreement, a 1998 pact among 46 states and major cigarette manufacturers as part of litigation for health care costs and deceptive trade practices.

Jackley has said that not taxing tobacco could jeopardize South Dakota’s share of that settlement, which amounts to about $20 million annually.

As for the “anything sold for human consumption” language, Phillips pointed to more specific wording used by Oklahoma legislators in a bipartisan effort to reduce the state’s tax on food and food ingredients to 0% earlier this year.

To stay aligned with the streamlined sales tax, the Oklahoma law defines food and food ingredients as “substances, whether in liquid, concentrated, solid, frozen, dried, or dehydrated form, that are sold for ingestion or chewing by humans and are consumed for their taste or nutritional value.”

That’s essentially the same standardized language found in South Dakota Codified Law 10-45-1, which Hollweger said in a letter to Dakotans for Health in 2022 would “likely apply” to the LRC’s original suggested language for the measure.

The Oklahoma law also states that the 0% tax rate does not apply to alcoholic beverages, dietary supplements, marijuana products, prepared food or tobacco.

Phillips said the differences between Oklahoma’s law and IM 28 underscore the difficulty of articulating complex tax policy through a ballot measure, which needs to be clear to voters and cannot encompass more than one subject under South Dakota law.

Fixing that language “shouldn’t be difficult to do,” she said. “I would imagine the Legislature would have a bit of an incentive to do it because they don’t want to blow that hole in their budget.”

What will legislators do if it passes?

Because IM 28 is an initiated measure, not a constitutional amendment, legislators have more power to craft the policy.

For instance, they can adjust the language to align with the definition found in South Dakota law, removing some of the unintended consequences cited by IM 28’s opponents.

“The counter to many of these complaints (about wording) is that the Legislature has eight months to fix it,” said Michael Card, an emeritus professor of political science at the University of South Dakota. “Part of this back-and-forth is due to efforts to limit the scope of initiated measures, a fight between the dominant (Republican) party and those who want to change laws through the ballot.”

Sanderson responded that even if the language is fixed and IM 28 is sharpened to include only groceries, there are still repercussions on top of the earlier general sales tax cut.

Sales tax receipts declined by 2.6% in fiscal year 2024 after gains of 9%, 12.2% and 12.7% the previous three years, according to the South Dakota Bureau of Finance and Management. That dip reflects the earlier sales tax cut and will require action if the state can’t tax groceries or other consumables, he said.

“The problem is that IM 28 doesn’t have any mechanism for replacing the lost revenue, so the money’s going to have to come from somewhere,” said Sanderson, who spearheads a coalition that opposes the measure.

“In order to make that up, they’re going to have to raise a tax somewhere. That requires a two-thirds vote of a Legislature in which 94 out of 105 are currently Republicans. Are legislators going to vote for a (sales) tax increase to raise revenue? I don’t think so. And that’s why we’ve expressed our concerns that if IM 28 passes, it’s going to lead to higher property taxes or an income tax (through ballot measure) because the Legislature is simply not going to vote with a two-thirds majority vote to raise the tax.”

Weiland called these claims scare tactics meant to influence voters and take the focus away from the merits of a grocery tax repeal.

He referenced past legislative overrides of resident-led initiatives such as IM 22, a campaign finance and ethics reform package approved by voters in 2016 that was later repealed by lawmakers with an emergency clause that ensured it could not be referred back to the ballot.

 

“I think every concern that’s been raised, if in fact it was a real concern and not a campaign tactic, they could address very simply in the upcoming legislative session,” said Weiland, a former Democratic candidate for U.S. House and Senate. “What I think they’re more likely to do is talk about this $646 million hole in their budget so they can declare a state of emergency and repeal it like they did with IM 22.”

Does Gov. Noem support a grocery tax repeal?

Noem personally testified in committee for her 2023 bill to repeal the grocery tax, based on her campaign pledge.

She pointed to double-digit increases in sales tax revenue in 2021 and 2022 and a budget surplus in 2022 of $115 million, an outlook boosted by COVID-related federal stimulus and inflation-impacted tax receipts.

The bill ultimately failed, but the message was duly noted by Dakotans for Health and other groups that have pushed for eliminating the grocery tax.

“The Republicans’ big argument has always been, ‘Oh, we don’t have the money to repeal the food tax. It will come on the backs of firefighters and teachers, or we’ll have to do a state income tax,’” Weiland said. “Well, the governor took all those arguments and threw them in the trash.”

But Jim Terwilliger, the governor’s budget director, noted that Noem’s proposal would have reduced the state’s food tax to 0% rather than eliminating it, addressing concerns about compliance with the streamlined sales tax agreement.

The bill’s language aligned with state definitions for food and food ingredients and it spelled out exceptions such as alcohol, tobacco and cannabis.

She warned lawmakers of potential budget fallout if voters passed a grocery tax initiative on top of the general sales tax cut, pointing to public support for such a measure.

Terwilliger told News Watch earlier this year that Noem doesn’t support IM 28 because of concerns about the wording. He added that the governor “still believes a repeal of the grocery tax is the best tax relief for South Dakota families if it is done in a responsible manner,” though she didn’t mention the repeal in her 2024 budget message or State of the State address.

Can cities and towns still tax groceries if this passes?

Again, it’s complicated. The actual wording of the measure states that “municipalities may continue to impose such taxes.”

But opponents, including the South Dakota Municipal League, said eliminating the tax, rather than reducing it to 0%, will render local governments unable to impose the food tax because of South Dakota Codified Law 10-52-2.

That law states that cities and towns can charge a sales tax if the tax “conforms in all respects to the state tax … with the exception of the rate.” Eliminating the tax entirely would create problems with state and local alignment, said Sanderson.

“Cities and towns can only tax the same items as the state,” he said. “So despite the language in IM 28, if the state cannot charge a tax on ‘anything for human consumption,’ neither can a municipality.”