South Dakota Supreme Court can set rules for its space on concealed pistols, lawmaker says

Capitol News Bureau

PIERRE, S.D. (KELO) —  A veteran lawmaker who’s a lawyer and a former prosecutor says the Legislature’s Rules Review Committee doesn’t have authority over what the South Dakota Supreme Court decides can happen in the court’s spaces at the state Capitol.

The five justices held a hearing Monday about where they will or won’t allow some people to carry concealed pistols. The justices also considered a related proposal on posting signs telling the public about the pistols rule.

State departments, boards and commissions must present their proposed rules for review to a panel of six legislators who decide whether the rule-making process has been satisfied.

The state Supreme Court however, as a separate branch of government, falls outside that requirement regarding rules on conduct in spaces the state Unified Judicial System controls, according to Senator Lee Schoenbeck, a Watertown Republican. The Supreme Court sets the rules for the Unified Judicial System.

Schoenbeck, 61, is a lawyer in private practice and previously was the Day County state’s attorney. He’s been a legislator at four different times during three decades, for a total of nine years. He served two years as Senate president pro tempore, the chamber’s highest-ranked member.

“I know the answer is no,” Schoenbeck said about whether the Supreme Court is subject to the rules-review panel. “I’d be guessing about why, but I’m pretty sure the reason is that they are their own branch and don’t make their rules pursuant to legislation like the executive branch does.”

He continued, “The UJS could pass its own tune anytime on firearms or food or whatever in court space, and doesn’t need to stay within some scope of legislative authority.”

State laws regarding the Legislature’s rules-review process provide authority for an agency or other party to seek a review in state circuit court and, ultimately, to make an appeal to the state Supreme Court.

In this instance, the Supreme Court’s proposed rule would generally ban concealed pistols in most of its Capitol spaces, with the exception of the state court administrator office.

Schoenbeck voted against the 2019 legislation allowing some people to carry concealed pistols in most parts of the Capitol. Governor Kristi Noem signed SB 115 into law March 18. It took effect July 1.

The justices haven’t indicated when they will issue a decision on the proposed rule.

Four legislators who voted for SB 115 filed correspondence with the Supreme Court about the proposed concealed-pistol rule that starts on page 7. The court posted audio from the 20-minute hearing.

The legislators were House Republican leader Lee Qualm of Platte and representatives Carl Perry, R-Aberdeen; Tom Pischke, R-Dell Rapids; and Kevin Jensen, R-Canton.

Qualm in his email argued to Chief Justice David Gilbertson: “I encourage you and all Supreme Court judges to allow the law that is in place to remain in place as it stands with no promulgation of rules to exempt the offices of the Supreme Court and the Law Library. Those who work or visit the Supreme Court offices and the library should also have the right to defend themselves with a concealed weapon if they so desire under the constraints of this new law.”

Republican Matt Michels of Yankton agreed with Schoenbeck. Michels, a lawyer, has seen the matter from several sides.

Michels served eight years in the state House of Representatives, including his last four as the House speaker who presides over the daily floor meetings. He most recently was lieutenant governor for eight years during Governor Dennis Daugaard’s administration.

Michels said the South Dakota Constitution is specific about the balance of power between the judicial and legislative branches. He pointed to Article V, section 12 on rule-making power. It reads: “The Supreme Court shall have general superintending powers over all courts and may make rules of practice and procedure and rules governing the administration of all courts. The Supreme Court by rule shall govern terms of courts, admission to the bar, and discipline of members of the bar. These rules may be changed by the Legislature.”

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