Another Replacement Candidate. But the big question is, can he serve?

In the prior article, I had commented that before I could complete the next one I was working on (regarding Republican Senate Candidate Jean Hunhoff’s new opponent), I needed to look at an old post I did first.

Why? Because it could directly affect whether Jean’s opponent could serve or not. If he's going to do what he says he is, I tend to think he can’t – and it’s a valid issue that Hunhoff and the State GOP should pursue.

“What?” You might be asking yourself. “If the guy has been filed as the replacement on the ballot, why couldn’t he serve?” Because from statements he’s made, it sounds like he has no intention of giving up his current office, placing him in a situation that is going to force him to choose one or another.

Democrat Curt Bernard is the Mayor of Yankton. And he’s also now a candidate for the legislature. But, for some odd reason, he thinks he has legal authorization to possibly serve in both offices. From the announcement in the Yankton Daily Press and Dakotan:
Bernard said he has considered a Legislature run since April. However, he didn't want to give up his role as mayor and the work under way with the Yankton City Commission. He filed for the Legislature when he learned state law allows him to hold both offices.

"If elected, I hope to continue to be on the City Commission to more fully help this region and stay the course in the city efforts," he said. "There is only significant overlap in January and February while the state Legislature is in session. I will able to arrange to attend those city meetings to help both at the city and state level."

Holding both offices would be complementary, not a conflict, Bernard said. "It might actually help move the region forward even more," he said of the dual roles.
Read it all here (Registration Required).

And you know what. I disagree. I say the State Constitution does NOT allow him to hold both offices at once. How am I reaching this conclusion? Let’s take a look at my prior post on the matter where Pat Haley sits in the same situation:
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.

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.
And despite some well reasoned debate points placed as comments under the prior post, there is still no argument I’ve seen that would change my opinion. Now, as I noted, the official AG’s opinions have wavered a little back and forth on this in the past. Attorney General Roger Tellinghuisen’s office offered more leeway on such restrictions, but under Barnett, they went back to a stricter interpretation. And I have no reason to believe that Attorney General Larry Long who served as Barnett’s Deputy would be any different.

The candidate, Curt Bernard, claims that the law says he can hold both offices at once. Does Curt have an opinion saying its ok? He very possibly has one from his own attorney, or the attorney for the State Democratic Party. But I'm not seeing one from the person many view as the definitive source, the Attorney General.

More likely, he hasn’t asked for one because he doesn’t want to see it.

And now is an appropriate time for him to tell the voters which office he's going to choose in January. Because according to my layman's reading of the law, it only looks like he gets to pick one.


mjb said…
The big question isn't whether or not he can serve.

It is "Can he bus tables?"
Anonymous said…
What about Mike Wagner? I don't recall anyone suggesting he not be allowed to serve and Barnett was AG during Wagner's time in the Legislature.
Anonymous said…
The mayor of Hill City held both offices at the same time for four years. So the answer is yes, someone can hold both the office of Mayor and be in the legislature.
Anonymous said…
That was Drue Vitter. He did serve in both and nobody said a word.
Anonymous said…
Have you forgotten which state you live in? REPUBLICANS get to do things like this. When Dems do it, it's a problem.
PP said…
Honestly, unless someone asks for it, these situations aren't typically reviewed.
Dave said…
PP it is nice to see you back peddle. When you hadn't thought of the issue of Vitter or Wagner, you were all over the dems for wanting to hold 2 offices, now you say it isn't an issue unless someone asks for it. I'll bet someone from your party asks for it. I hope Jean wins because she is a very good legislator. But I find it amusing that you are now on the fence on the issue.
PP said…
Dave, it's pretty bad when you're misquoting something in front of you as you write it. (that, and grossly misspelling backpedal)

You're falsely quoting me as saying "it isn't an issue unless someone asks for it."

What I said was "unless someone asks for it, these situations aren't typically reviewed."

In otherwords, the AG doesn't offer opinions "because they feel like it." They offer legal opinions upon request.

Me? I personally don't agree with someone holding two positions at once. It's not as if they can't find someone to take over. Did I say I agreed with Vitter or Wagner holding both at once? If I did, please point that out to me.

People are saying what about this person, or what about that person. My response is: If no one ever questioned it at the time, then it wasn't examined and no subsequent opinion was offered.

That's simply the point. I'm not here to dwell on hindsight, because it's immaterial. If it wasn't questioned, it wasn't questioned.

At this moment, I'm looking at the here and now. I'm questioning it, and offering my opinion as to why I think I might be right.

And suggesting that the party consider taking a look. That's all.
Anonymous said…
The party should look at it. Curt will crush jean unless enough mud can be thrown at him
Anonymous said…
I don't think there's going to be a ton of 'crushing' by Curt.

Yeah, Curt is Yankton's mayor, but there are a lot of people who don't like him.

Besides, Jean is a current legislative incumbent (even though she's switching houses), and has served for 3 terms. Prior to that, she did a lot of local work, including serving as mayor.

Unfortunately, Jean only received 46% of the vote in 2004. She knows she's beatable (but not crushable), and so I would be very surprised if she doesn't talk about this.

Don't get me wrong, I would love see Jean ousted. I just don't know if Curt is going to be be able to do it.
Anonymous said…
To remind everyone, Pat Haley is currently serving as Huron city commissioner and rep. Lou Sebert is currently serving as Mitchell mayor and rep. Mike Kroger currently serves as rep and doubled as Dell Rapids city councilor for some time until he voluntarily resigned - not forced out.

There is a long history of this and PP is the only one who thinks it can't be done despite a long and continuous history of this going on under every attorney general in recent memory.

By the way, the attorney general's opinion is not definitive as PP says. It's really not worth the paper it's written on because it doesn't carry the weight of law. We saw how much good it is with the cell phone tax and video lottery being placed back on the ballot despite Long's opinion.

There may be political value for Hunhoff to fault her new opponent for not choosing one or the other, but but that's the extent of the mileage to be gained from the issue. The flip side for Hunhoff is the issue of hypocrisy when Hunhoff hasn't called on Sebert to resign.
pdq said…
Anon 2:05, you're pretty selective with your facts. Or should we say you're pretty good at making up stuff based on half the truth.

"We saw how much good it is with the cell phone tax and video lottery being placed back on the ballot despite Long's opinion."

Long based his opinion on the prior ruling of the Supreme court. It was taken to court and then the prior supreme court ruling was overturned.

The opinion didn't change. The Court did. That's why it's on the ballot. Not through a bad AG opinion, but through a previous bad interpretation of law by the court.
Anonymous said…
I'm sure there were people pretty upset with Curt when he went to bat against building a new pool Thus saving the tax payers 2 million dollars.

Depends who is upset with him obvioulsy it wasn't the 76% percent who voted and agreed with him on the pool.

Either you are for the people or for the few who want to spend the tax payers money for things that do not create a ROI.

He is for the people, period.
Anonymous said…
If Barnyard is defeated by Hunhoff, this is a moot point. If Barnyard wins, maybe he can arrange some kind of deal with The Pilot.
Anonymous said…
PDQ, you're just wrong on the facts, period. The Supreme Court didn't overturn anything - they distinguished this case from the other unnamed case you refer to.

If you think the AG's opinion is worth anythnig you're wrong about that too. It's just one man's opinion, nothing more. Long can give his opinion and even jump up and down to emphasise it if he wants - but nobody needs to listen. The only opinion that counts is that of the Court.

So if Long wants to selectively wade into these waters and start going after Democrats while ignoring Lou Sebert and Republicans who do exactly the same thing (same as PP is doing) let him have at it.
Anonymous said…
Anon 9:36, is it true what they say about ignorance being bliss?
Anonymous said…
You tell me 11:34
Anonymous said…
How can I get in touch with Drue VItter???
PP said…
A psychic? He passed away a year or so ago.
Anonymous said…
For real---he really did past away--have a picture of his grave site??
Anonymous said…
He was my best friend and I live in Louisiana and I really need to see a picture of his grave site and you can email it to me at

Anonymous said…
He was your best friend and you just found out he died? Why weren't you at the funeral? He was a pretty good fellow, loved that Southern accent. It was unusual in the South Dakota legisalture.
Anonymous said…

I knew he died--I recieved a phone that Friday evening and he had died that Friday morning--I just didnt want to believe it and I live in Louisiana and dont like to fly and really wanted to be at his funeral--did you go? Was there a lot of people there. I send him a very special rose that was supposed to be put inside his casket--wondering if that was done

Please email me at so we can talk if you dont mind


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