PIERRE, S.D. (KELO) — Governor Kristi Noem is waiting to hear from the South Dakota Supreme Court before she fills a legislative vacancy.
The governor has formally asked the Supreme Court to issue an advisory opinion regarding what constitutes a conflict of interest for a legislator.
The governor wants further clarification before appointing someone to replace Jessica Castleberry, who resigned from the state Senate after her business was found to be receiving COVID-19 aid.
South Dakota Attorney General Marty Jackley and the Legislature’s two leaders, House Speaker Hugh Bartels and Senator Lee Schoenbeck, sent letters to the state’s highest court supporting the governor’s request.
Attorney General Jackley in his letter asked the justices to also advise what the penalties should be for legislators who violate the South Dakota Constitution’s prohibition against having an interest “directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed during the term for which he shall have been elected.”
The Supreme Court had issued an advisory opinion in October 2020 that said the constitution “precludes a current state legislator from contracting directly or indirectly with the State to receive funds from CRF (Coronavirus Relief Fund) Grant Funds.”
Speaker Bartels in his letter noted, “With the recent public interest, the Governor’s upcoming appointment to the Senate and the start of elections season, multiple questions have been received on this topic from the public, Legislative members and potential legislative candidates.”
Schoenbeck, the Senate’s president pro tempore, in his letter suggested the court would be aided by a hearing. The former state’s attorney wrote, “Prior Courts, and their liberal interpretation of a very specific constitutional provision, have created an unfortunate situation this Court needs to address. It is not a pleasant task to have to clean up the work of predecessors, but it is a very important task for our state.”
Bartels said the Legislative Research Council attempted to draft a memo to serve as guidance that still left many questions unanswered. “To be useful, these issues need answers,” he wrote.
Schoenbeck in his letter outlined a variety of situations where legislators could be found to be in violation. “A literal reading of the ‘indirectly’ language in Article III Section XII would exclude a very large portion of South Dakota’s population,” he wrote.