PIERRE, S.D. (KELO) — Should the governor have the power to fill seats that become vacant in the South Dakota Legislature?
The Legislature raised the question again this year. House members proposed an amendment to the South Dakota Constitution for voters to consider in 2020, but the measure died in the Senate on March 7.
By that point, first-year Governor Kristi Noem had already filled two vacancies in the 105-seat Legislature. Since then, four more seats have opened. Now there’s talk circulating again about lawmakers possibly trying once more to change that specific piece of a governor’s authority.
The governor currently has two vacancies on her desk. The latest to announce he’s stepping down was Republican Senator Stace Nelson of Fulton, who serves Bon Homme, Douglas, Hanson, Hutchinson and McCook counties in District 19. Nelson issued a news release Sunday saying his final day is December 10.
Their pending departures mean the Republican governor gets to make her fifth and sixth appointments since she officially took office January 5.
The South Dakota Constitution, in Article III, section 10, says: “The Governor shall make appointments to fill such vacancies as may occur in either house of the Legislature.” Voters approved that language in November 1948. The count came out 103,396 yes and 78,505 no.
It’s an unusual arrangement, in that it blurs an otherwise clear separation of powers and geography between the governor, whose office is on the Capitol’s second floor, and the 70 House members and the 35 senators, who operate in the two legislative chambers on the third floor, and hold most of their hearings on the fourth.
This year two Republicans, Representative Tom Pischke, of Dell Rapids, and Senator Jim Stalzer, of Sioux Falls, wanted to offer voters a way to make that line bolder.
Pischke and Stalzer proposed an amendment to the South Dakota Constitution. They had as co-sponsors a variety of other hard-right Republicans, as well as many Democrats, including both chambers’ minority leaders.
The bi-partisan group introduced House Joint Resolution 1001. Their original version said: “The Legislature shall provide the manner by which a person may be appointed to fill a vacancy occurring in either house. The person appointed under this section shall be of the same party affiliation, if any, as the person whose vacancy is being filled.”
The House eventually approved a much different version, on a 42-25 vote, that put political parties directly in charge of the vacancy process. Pischke voted for the House version, as did many Republicans and most Democrats.
The Senate State Affairs Committee however later restored the original language. But the full Senate, despite Stalzer calling for passage, rejected it.
Right now Noem has about 10 days before she’ll have to announce her choice to finish Solano’s two-year term and about three weeks before she has to replace Nelson.
As for her first two appointments, those actually came in the weeks before she officially took office but after the November general election.
Governor Dennis Daugaard, with less than a month left in his second and final term, let Noem name the replacement for the late Representative Chuck Turbiville of Deadwood, a Republican, who died October 20, 2018.
Daugaard also let Noem pick a new House member in District 9.
Deb Peters, of Hartford, a Republican who was term-limited in the Senate, made known after winning a House seat in November she wouldn’t take the oath of office and would end legislative service after 14 years. Noem announced December 28 that Republican Rhonda Milstead from Sioux Falls would represent the district instead.
On October 22, Noem announced Republican James “JD” Wangsness of Miller would fill the vacant House seat Lake had held.
KELOLAND News asked the governor’s press secretary where Noem, a former two-term legislator and four-term U.S. House member, stood regarding the possibility of another proposal during the 2020 legislative session that would attempt to restrict a governor’s power on legislative vacancies.
Kristin Wileman responded that the Legislature rejected a potential change to the process in 2019. “Governor Noem would want to see the detailed language on any possible change to the constitution, but on the whole, she believes the current process for filling legislative vacancies works well,” Wileman said.
One of Governor Noem’s aides during legislative session, Tony Venhuizen, testified against the House version of the Pischke-Stalzer measure at the Senate committee hearing March 6.
Venhuizen, who is married to one of Daugaard’s daughters, is a lawyer now in private practice in Sioux Falls. Venhuizen served as Daugaard’s director of policy and communications during Daugaard’s first term as governor and was chief of staff during Daugaard’s second.
Venhuizen told the committee’s senators that “we” — meaning the Noem administration — saw three problems.
They generally centered on the legal complexities of having the central committee of the exiting or deceased lawmaker’s political party select the replacement.
First, Venhuizen said, political parties are officially recognized under state law and putting central committees in the state constitution could mean any future changes in state laws also could require constitutional amendments.
Second, Venhuizen questioned whether it would be wise for a party organization to name an otherwise-elected official. Third, participation in elections for political-party offices had tended to be “very low” and many races went uncontested, he said.
Senator Jim Bolin, of Canton, a Republican, also called for the resolution’s defeat. Bolin said the issue of legislative vacancies wasn’t significant enough to merit a spot on the ballot.
But Senator Brock Greenfield, of Clark, a Republican and one of the Legislature’s longest-serving current members at 19 years, asked that the measure be changed back to the original version.
Greenfield said the proposal would strengthen the legislative branch and allow a political party potentially more protection to keep the seat. The committee followed Greenfield’s lead and recommended the original version’s passage 6-3.
The next day, however, Bolin spoke against once more, and this time he came out on the side of the victors: The Senate failed to approve it 15-19.
Stalzer in a recent conversation said various Republican senators had an assortment of objections, including unwillingness to put the new governor in a difficult spot just a few months after she took office.
Pischke and Stalzer made a similar proposal in 2018 that the House Judiciary Committee killed at its first hearing. A resolution sponsored by Democrats in 2016 failed at its first hearing by the Senate Judiciary Committee.
KELOLAND News asked Venhuizen for a list of Daugaard’s legislative appointments. Depending on how they’re counted, there were as many as 18 during his eight years as governor, Venhuizen said.
In 2011, Sen. Cooper Garnos, of Presho, a Republican, resigned. Daugaard appointed Representative Kent Juhnke of Vivian, a Republican, to the Senate, and Republican Dave Scott of Geddes to the House.
Their district was reconfigured for 2012, as part of the redrawing of legislative boundaries every decade for the 35 districts. Juhnke subsequently lost to Troy Heinert of Mission. Heinert now is Senate Democratic leader.
Scott meanwhile was placed in a different district; he lost to Democrat Julie Bartling, of Gregory and Lee Qualm, of Platte. Qualm is now House Republican leader.
In 2013, Representative Patty Miller, of McCook Lake, a Republican, resigned and Daugaard appointed Republican Dave Anderson, of Hudson. Anderson remains in the House.
Also in 2013, Senator Mark Johnston, of Sioux Falls, a Republican, resigned and Daugaard appointed Republican Blake Curd. Curd remains a senator.
In 2013, Representative Jon Hansen, of Dell Rapids, a Republican, resigned and Daugaard appointed Kris Langer, of Dell Rapids. She was reelected and now is Senate Republican leader.
Also in 2013, Senate Republican leader Russ Olson, of Wentworth resigned and Daugaard appointed Republican Chuck Jones, of Flandreau. Jones lost to Democrat Scott Parsley, of Madison.
In 2014, Senator Stan Adelstein, of Rapid City, a Republican, resigned and Daugaard appointed Solano, who now plans to resign too.
Also in 2014, Representative Christine Erickson, of Sioux Falls, a Republican, resigned after winning election to the Sioux Falls city council. Daugaard appointed a former legislator, Republican Mark Willadsen, of Sioux Falls. Willadsen is still in the House.
In 2015, Senator Dan Lederman, of Dakota Dunes resigned and Daugaard appointed Republican Bill Shorma, of Dakota Dunes. In the next election, Representative Bolin ran for the Senate and won. Shorma meanwhile ran for the House, finishing third in the Republican primary to Anderson and Kevin Jensen, of Canton. Lederman is now serving his second term as chairman for the South Dakota Republican Party.
Also in 2015, Senator Tim Rave of Baltic, a Republican, resigned and Daugaard appointed Republican Scott Fiegen of Dell Rapids. Fiegen didn’t run and Langer won the seat.
Also in 2015, Representative Steve Hickey, of Sioux Falls, a Republican, resigned and Daugaard appointed Republican Wayne Steinhauer, of Hartford. Steinhauer was elected in 2016 and is now in the Senate.
In 2016, Representative Dan Dryden, of Rapid City, a Republican, died in August, too late to be removed from the election ballot, and Daugaard appointed a former House Republican leader, David Lust, of Rapid City. Daugaard let it be known that, if Dryden was elected posthumously, Daugaard would appoint Lust to fill the new term starting in 2017. Dryden did win and Daugaard appointed Lust to the new term. Lust didn’t run again in 2018.
In 2017, Representative Matt Wollmann, of Madison, a Republican, resigned and Daugaard appointed Republican Marli Wiese, of Madison. She won election and is still in the House.
Also in 2017, Representative Don Haggar, of Sioux Falls, a Republican, resigned and Daugaard appointed Republican Doug Barthel, of Sioux Falls. Barthel was elected and is still in the House.
Also in 2017, Representative Craig Tieszen, of Rapid City, a Republican, died in a boating accident and Daugaard appointed a former legislator, Republican Mike Diedrich, of Rapid City. Diedrich was elected and is still in the House.
In 2018, Senator Jenna (Haggar) Netherton, a Republican, of Sioux Falls resigned and Daugaard appointed Republican Maggie Sutton, of Sioux Falls. Sutton won election and is still in the Senate.
Also in 2018, Representative Sean McPherson of Rapid City, a Republican, died and Gov. Daugaard appointed Republican Scyller Borglum, of Rapid City. She won election and is making a run for the Republican U.S. Senate nomination in 2020.
Also in 2018, Representative Jim Schaefer, of Kennebec, a Republican, died and Daugaard appointed Republican Rebecca Reimer, of Chamberlain. She won election and is still in the House.
Venhuizen also checked records from the state Legislative Research Council regarding legislative appointments that the prior governor, Mike Rounds — now a U.S. Senator — made. Rounds and Daugaard, both Republicans, previously served as state senators.
Venhuizen said he found seven that Rounds made as governor.
In 2002, Democratic Sen. Dick Hagen, of Pine Ridge died before the November election but was elected posthumously. In early 2003, Rounds appointed Republican Michael LaPointe, of Mission. LaPointe lost his run for election to Democrat Theresa Two Bulls, of Pine Ridge.
Also in 2002, term-limited Representative Mitch Richter of Sioux Falls, a Republican, was elected to the Senate but then resigned before taking office. A former legislator, Republican Mike Jaspers, of Sioux Falls, won election to a House seat. In 2003, Gov. Rounds appointed Representative Jaspers to the Senate.
To fill the House seat, Rounds appointed Republican Keri Weems of Sioux Falls. to the House seat. Jaspers didn’t run again. Weems was reelected to the House.
In 2004, Senator Larry Diedrich, of Elkton, resigned after Republicans nominated him for the U.S. House. Rounds appointed Republican Al Kurtenbach, of Brookings. Kurtenbach didn’t seek election.
In 2005, Representative Bill Van Gerpen of Tyndall, a Republican, resigned because the South Dakota National Guard planned to deploy him as a chaplain. Rounds appointed Republican Gary Jerke of Tripp. Gerke served through 2008. Van Gerpen returned to the House in 2009.
In 2007, Representative Alan Hanks, a Republican, resigned after he was elected mayor of Rapid City. Rounds appointed Brian Gosch of Rapid City, who went to become House speaker and House Republican leader. Gosch won election to the maximum four consecutive terms in the chamber and didn’t run for the Senate in 2016.
In 2009, Representative Brian Dryer, of Rapid City, a Republican, resigned and Rounds appointed Republican Kristin Conzet, of Rapid City. Conzet was elected to four consecutive terms in the House and didn’t seek Senate election in 2016.
How did governors get the authority? From legislative records, here’s what we can piece together.
Governor George T. Mickelson of Selby had just taken office in January 1947. The Republican previously was state attorney general and House speaker.
At that time, the Legislature met in regular session once every two years. It doesn’t appear there was a provision in the state constitution or in state law for how legislative vacancies should be filled.
On the last day to introduce legislation in the 1947 session, Representative W.M. Rader, a Hoven Republican, put in House Joint Resolution 6. The House State Affairs Committee recommended it pass. The House did, voting 67-3 in favor, after first rejecting an amendment from Representative Walter Lingo. The Highmore Republican wanted to required the governor to appoint a replacement from the same political party as the previous legislator.
The Senate State Affairs Committee approved it, and the Senate finalized it 29-2. Voters gave the go-ahead in the 1948 general election, with 103,396 marking yes and 78,505 saying no. At that time, the Legislature met in regular session once every two-year term. Voters amended the constitution in 1962 to require regular sessions every year.