Gov. Kristi Noem and legislative leaders are asking the state Supreme Court for guidance on a constitutional provision related to contracts.
Article III, section 12 of the state constitution prohibits any active member of the legislature from entering into agreements with the state.
The issue came to a head earlier this year when Republican Sen. Jessica Castleberry resigned her seat after Noem accused the senator of illegally obtaining COVID relief funds through her pre-school daycare business.
The clause applies to contracts entered during a lawmaker’s term in office and the year after that term ends. An LRC memo said the provision likely captures the six months the fiscal year after that legislator’s final regular session.
There are five state Supreme Court cases on this article. Republican state Sen. Lee Schoenbeck said none of rulings deal with the issue at hand.
“There’s no guidelines in those cases. You couldn’t create a memo that said, ‘If you do this or this you’re going to be okay,’” Schoenbeck said. “There’s just almost no guidance that you can make sense out of.”
State lawmakers are retaining a lawyer on their behalf for the advisory opinion. Briefs for the case are due in mid-December. Legislative leaders are asking fellow legislators to disclose any potential conflicts with the state to the lawyer, to help guide the Supreme Court’s opinion.
South Dakota has a small population with a citizen legislature. Many lawmakers are also engaged in their communities and sit on nonprofit boards.
Republican Rep. Will Mortenson said the constitutional provision was written in the 1800s, when the state legislature approved contracts, like road construction, one by one.
“So, now, the Supreme Court has the unenviable task of applying it to our modern situations, where of course that’s the furthest thing—there’s three rungs of discretion between the legislature and who is actually awarding these contracts," Mortenson said. "We are in an entirely different paradigm here. There’s a lot of grey. Hopefully we get a little more black and white.”
Mortenson said the state’s citizen legislature depends on it. In the meantime, he said the legislature can look at improving disclosures requirements.
