I'm not so sure we don't get to appoint one now

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Am I the only one who caught this on the Huron Daily Plainsman website?
Haley takes oath as councilman; board reorganized
BY ROGER LARSEN

Pat Haley took the oath of office Monday evening to become the newest member of the Huron City Commission.

He succeeds Ron Volesky, who chose not to seek re-election in April. Haley was unopposed.
Why does it matter? Aside from being an item of interest, I'm thinking that taking the oath of office has automatically triggered a legislative vacancy in House District 22. Yes, it could be one of the shortest terms of office ever, and the appointee might not ever see the inside of the Capitol unless there's a special session.

But by the action of Pat Haley taking the oath of office, he now holds two offices at once, that of Legislator and that of City Council member. And I'm not so sure those offices are compatible.

Check out Attorney General's opinion 82-23, (from Mark Meierhenry) which says in part:

The South Dakota Constitution Article III, § 3, setting out the qualifications for state legislative office, provides, inter alia, that:

No judge or clerk of any court, . . . or persons holding any lucrative office under the United States, or of this state, . . . shall be a member of the Legislature: provided, that appointments in the militia, the offices of notary public and justice of the peace shall not be considered lucrative.

and...

A lucrative office would be one in which the holder of such office would be compensated for performing the duties attendant upon the office. Wills v. Potts, 377 S.W.2d 622 (Tex. 1964); 1927-28 AGR 240. The amount of such compensation is immaterial.
In the intervening years, Tellinghuisen was more lax on these conflict rules, but Barnett came back with a strict interpretation on them. And I have no reason to believe that Attorney General Long would be any different.

The State constitution says he can't hold a lucrative office besides that of state legislator, but he now has one. Looks like Haley needs to hand the keys to the State Capitol back in.

Comments

Anonymous said…
It's odd he didn't announce his withdrawing from the legislature first, or that the article didn't mention his other job. Suppose he doesn't know or care? I don't think the Gov. is obligated to fill the seat. If memory serves me, when McCaulley stepped down early 2 years ago, I think it was left unfilled.
10:56 PM
Anonymous said…
What position are you in that you would say "we"?

Are you on the governor's payroll again?
8:37 AM
Anonymous said…
Haley can do both. There's precedent for it. Richard Wudel was mayor of Parkston when he served in the legislature a few years back, and if I'm not mistaken, Bernie Christenson was a member of the Pierre City Commission during his legislative service in the mid 1980s.
10:41 AM
Anonymous said…
There is nothing in law prohibiting Haley from serving both on the city council and in the House. However, there is a law that says when a legislator ceases to be a resident of their district there is an automatic vacancy. Republicans have ignored this law. When Mike Jaspers moved to Sioux Falls and registered in District 11, he was never forced out of his seat - so he kept representing the Webster area a a Sioux Falls registered voter and candidate. Likewise, when Chris Madsen (a deputy state's attorney on the Lawrence County payroll) moved to Sioux Falls and registered to vote in District 14, he was never forced out of his Spearfish legislative seat.

If you want to talk about people with lucrative public jobs, Rep. Shawn Tornow works as a City Attorney in Sioux Falls, as he did when he was elected. Maybe his seat should be declared more vacant than it already is.
12:19 PM
Anonymous said…
anon 2;19 said there is a law that states that if you cease to live in the district from where you were elected then there is an automatic vacancy. I do not believe that his statement is correct. SDCL 12-6-3.1 only states that a candidate for the State Legislature must be a resident of the district for which he is a candidate at the time that he signs his declaration of candidacy. I don't believe a statue exists declaring an automatic vacancy.
1:56 PM
Anonymous said…
Anon 12:19 is right that a vacancy exists when a legislator moves out of his district.

SDCL 3-4-1. Events causing vacancy in office. Every office shall become vacant on the happening of any one of the following events before the expiration of the term of such office:

(5) His ceasing to be a resident of the state, district, county, township, or precinct in which the duties of his office are to be exercised or for which he may have been elected;
2:21 PM
Anonymous said…
While the statutes are silent on the issue of a vacancy. The South Dakota Constitution is not. And, if memory serves me right from the old law school classroom the constitution outweighs any old statute.

Also, the note about Tornow serving as a city attorney is irrelevant to this discussion. At this point in time public employment is not a barrier to holding elected office. Go see federal case law for that stuff.

And as to what some mayor of Parkston did is also irrelevant. The SD Constitution controls this issue not what some mayor in Parkston was doing a few years ago.
5:02 PM
PP said…
Actually, I think Wudel did it during a period when there was a more lax interpretation under Tellinghuisen.

This was the same period during which Mary Wagner served and she had a employment relationship with SDSU. (I think part was fed money, and part wasn't. Oh, and Mary was one of my favorite legislators).

During a later period, a similar instance was not allowed for another Republican (Carol Pitts) in a different situation.

What my point is, is that we're back to a stricter interpretation, so I don't know if he can do it.
5:43 PM
PP said…
And anon #2, you're funny. And no.
5:44 PM
Anonymous said…
Remind me. Has Rep. Lou Sebert resigned his house seat now that he's elected mayor of Mitchell, or does that new constitutional interpretation apply only to Democrats?
8:38 PM
PP said…
Anon 8:38, no he has not. But, you'd be correct in that he probably doesn't qualify to continue if this interpretation is accepted.

And what's new about it? It's a 1980's AG opinion.
8:56 PM
Anonymous said…
Anon 8:38:

Lou Sebert is term limited out. There is no practical effect. And Lou may have already resigned for all we know.

Lou can't return back to the legislature. However, Pat Haley can return to the legislature and we have not heard from him.
10:29 PM
Anonymous said…
But Lou's term doesn't officially end until the new ones are sworn in in January, so ,actually he did the same thing as Haley. Also, Holbeck kept his Parker Legislative seat for a year after he moved to Clark. I never knew he and others were, apparently, breaking the law!
11:47 PM
Anonymous said…
Regarding Anon 12:19 and 2:21 stating a vacancy exists when a legislature moves out of the district. 2:21 cited SDCL 3-4-1. According to the title description it deals with public employees and officers such as auditors, treasurers, commissioners, maybe schoolboard members etc., and the term 'district' in 3-4-1 refers to government endities such as school districts, water districts, fire districts, not legislative districts. Title 2 in SDCL deals with the legislature and the legislative process including Initiative and Referendum. Maybe we should ask an attorney.
12:12 AM
Anonymous said…
Notla's interpretation won't stand up in court. He's reading things into the law that don't appear there in defense of his partisans who didn't follow the law. If Democrats moved out of their districts you could bet that notla would be citing 3-4-1 as proof their seats are vacant.

And PP, if we're talking about a 1980's AG opinion, why wasn't it applied to Wudel? Republicans cannot be trusted to apply the laws evenly to everyone.
9:08 AM
PP said…
I don't know if it ever came up, but I can't speak to how things were interpreted back then
11:48 AM
Anonymous said…
anon 9:8, so you think it won't hold up in court? Why don't the Dems sue then? When Sen Jim Thompson moved out of Dist 5 and headed for the Black Hills in 1997 a lot of Republicans in Watertown, including lawyers, were mad as heck that he was planning on not resigning. But there was nothing they could do!! Cooler heads prevailed and talked him into resigning. Rep Koistinen moved out of Dist 6 in 2003, not a word was said about him having to resign, even in any of the papers. Why? Because the law says they don't have too!! But I guess you know better than all the attorneys in the state. I repeat, go ask an attorney or better yet a judge.
12:12 AM
Anonymous said…
While SDCL 3-4-1 doesn't specifically state that it applies to legislators, it's pretty clear from its language and context that it does apply. Title 3 doesn't just apply to "auditors, treasurers, commissioners, maybe schoolboard members etc." Looking at SDCL 3-4-2 shows us that. With the language of 3-4-1(5), i.e. "every office" and "ceasing to be a resident of the state, district, county, township, or precinct," plus the language of the rest of the chapter (for the general statutes), i.e. SDCL 3-4-2 (providing to whom legislators should present their resignation), and SDCL 3-4-3 (providing for appointment authority to fill vacancies), we can safely assume that SDCL 3-4-1 includes legislators. The absence of a statute concerning legislator vacancies in Title 2 (Legislature and Statutes) also supports this position.
8:54 PM
Anonymous said…
You should try for some more "anonymous" responses.
4:22 PM
Anonymous said…
hey anonymous,you never did answer the question notla put out there.if,in fact,there is a law regarding a legislature moving out of one district to another ,then why haven't the democrats or republicans sued over this matter?
8:35 PM
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