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Letter Composed To South Dakota Governor Rounds

The following was composed by Attorney Gary Zerman and forwarded to Bill Stegmeier, Proponent for Amendment E.


May ___, 2006

Governor Mike Rounds
Office of the Governor
500 E. Capitol Avenue
Pierre, South Dakota 57501

Re: With HCR 1004 the South Dakota Legislature Unconstitutionally Exceeded
Their Authority & Interfered with an Election Measure – Amendment “E”

Request that YOU Governor Rounds - Enforce the LAW:
1. Determine & Declare that HCR 1004 Violated the South Dakota Constitution;
2. Order the South Dakota Legislature to Cease & Desist using Their Public
Office & Public Funds to Interfere with Amendment E

Dear Governor Rounds:

On YOUR official website it states:

“In every decision we make and in every policy we develop, we are committed to protecting those who cannot protect themselves … We will protect our communities from those who wish to do us harm. …”

We here bring to you, a case that tests those statements made by you.

Further, as you surely are aware, Title 1 – State Affairs and Government, Chapter 1A – Unconstitutional Official Actions, provides:

“1-1A3. State Officers to Protect Constitutional Rights. Every state officer is directed to utilize the full force and authority of his office to resist the intrusion of such unlawful provisions and protect the constitutional rights of the State of South Dakota and its individual citizens from the encroachments of such provisions.”

Further, Title 1, Chapter 1-7 - Governor, provides:

“1-7-1. Powers and Duties of Governor. The Governor shall possess the powers and perform the duties entailed him by the Constitution and by special provisions throughout this code and among others, but without limiting other prescriptions of his powers and duties, as follows:
* * * * *
(2) He shall see that the laws of the state are faithfully and impartially

Governor Rounds, on December 22, 2005, Secretary of State Chris Nelson, certified that we had turned in sufficient petition signatures on our proposed Initiative to meet the required 33,500 signatures, to place the Initiative on the ballot for November 2006. The Initiative was given the official title of “Amendment E.” We in fact turned in 46,800 petition signatures. Thus, 46,800 citizens of South Dakota, at a minimum, clearly indicated that they at least want a debate on this issue.

On March 3, 2006, we sent a respectful letter to Senate Leaders Gary Moore and Eric Bogue and House Leaders Dale Hargens and Larry Rhoden (as well as to every member of each chamber), requesting that they reconsider their unanimous resolution - HCR 1004, and withdraw it, as it was in violation of both the South Dakota and United States constitutions, and thus in violation of fundamental voting rights of South Dakota citizens. (A copy of that letter is enclosed to this letter for you.)

Our letter went on to provide the specifics regarding those multiple violations of the law, thus such will not be repeated here (you can read the letter), other than to state a few of the core legal authorities that forbid the Legislature’s conduct here: 1) South Dakota Constitution, Article VI, Section 19 – Free and Equal Elections, 2) Article VII, Section 1 – Right to Vote, and 3) South Dakota Attorney General’s Official Opinion No. 88-28, Expenditure of Public Funds on Election Issues.

We also asked the “leaders” to answer or reply to six (6) specific enumerated questions regarding the doctrine of absolute judicial immunity.

Finally, we asked the “leaders” to publicly state whether they condoned or condemned the hate speech statements made by Senator Schoenbeck against Amendment E and its backers.

Neither the “leaders” nor any member, replied to that March 3, 2006 letter.

Therefore Governor Rounds, on March 17, 2006, we sent another respectful letter to the “leaders” pointing out their failure to reply and informed them that our polite request was now - a formal “legal demand”. (A copy of that letter is enclosed to this letter for you.)

As further support for our position that HCR 1004 violated the law, our March 17, 2006 letter cited the cases of Hoogestraat v. Barnett, 199 S.D. 104, 583 N.W. 421 and Schulte v. Long, 2004 S.D. 1002, both of which involved the Attorney General’s written explanation for South Dakota voters on a constitutional initiative measure. Our letter quoted Chief Justice Gilbertson’s (then associate justice) concurring opinion in Hoogestraat, where the Court determined the attorney general (Mark Barnett) had exceeded his authority there, stating:

“At stake here is the impartiality of the voting booth. We fully join in the Court’s opinion. We write only to stress a few additional points germane to the decision on this expedited case.

“While in a generic sense, the Attorney General is the lawyer for the citizens of South Dakota in that he is a public official who is paid with taxpayers’ funds like all public officials his duties are defined by the South Dakota constitution and our statutes. We do not read his general duties as set forth in SDCL 1-11-1 or any code section (exclusive of the disputed 12-13-9) to authorize the giving of a legal opinion on the face of the ballot. Thus we are presented with the narrow question now before us as to whether the disputed language may be authorized by SDCL 12-13-9. For the reasons set forth in the Court’s opinion, we conclude it is not. This is not to say that the Legislature may not authorize such action if it chooses to do so in the future, only that it has not done so at the present time.

“… we are cited to decisions from other courts which have upheld limitations on corporate farming in varying degrees. See Omaha Nat. bank v. Spire, 389 NW2d 269 (Neb 1986); MSM Farms v. Spire, 9237 F.2d 330 (8th Cir 1991); Asbury Hospital v. Cass County, 326 US 207, 66 SCt 61, 90 Led 6 (1945). ‘It is up to the people of the State of Nebraska, not the courts, to weigh the evidence and decide on the wisdom and utility of the measures adopted through the initiative and referendum process.’ MSM Farms, 927 F.2d at 333.

Therefore, we leave any questions as to the constitutionality of amendment E for such time as it is properly brought before us to determine that issue.
* * *
“This is one of those rare cases when the Court must act to protect the integrity of the ballot box. We can take no side in the debate between corporate and family farm interests, but we must ensure that the debate remains outside the voting booth.

“In this case, the Attorney General’s statement that Proposed Constitutional Amendment E ‘could result in successful lawsuits against the State of South Dakota, under the U.S. Constitution’ goes beyond the narrow authority granted by SDCL 12-13-9 and clearly exceeds the purpose of a ballot explanation. It is not a statement of how Proposed Constitutional Amendment E would change existing law. Rather it is conjecture as to possible consequences of a change in existing law. As such, it has no place in a ballot explanation appearing on the general election ballot. It is purely a statement of opinion which is more appropriate to the political campaign and education process leading up to the election.”

Governor, our March 17, 2006 letter to the “leaders” then went on to state:

“More appropriate to the political campaign? Gentlemen that’s exactly what your HCR 1004 was and is – but the problem is that you are campaigning with your public office and public funds. That is verboten. You violated the law. As Justice (now Chief Justice) Gilbertson stated above, it is up to the People, not the courts [nor the legislature] to weigh the evidence and decide on the wisdom and utility of the measures adopted through the initiative and referendum process.

“Again, it is clear that your actions in using your office and public funds on your HCR 1004, like those of Attorney General Barnett here, have interfered in the initiative election process. Beyond your telling in an official fashion and manner, South Dakota voters to “vote against” and “reject” Amendment “E” in HCR 1004, there you also officially told the voters that Amendment “E” is “unconstitutional” – quite analogous to A.G. Barnett’s unauthorized conduct.”

Again, neither the “leaders”, nor any member, replied to that March 17, 2006 letter.

Governor Rounds, as stated by Chief Justice Gilbertson (then associate
justice) in Hoogestraat:

“At stake here is the impartiality of the voting booth. … ‘It is up to the people …, not the courts, to weigh the evidence and decide on the wisdom and utility of the measures adopted through the initiative and referendum process.’ … This is one of those rare cases when the Court must act to protect the integrity of the ballot box. We can take no side in the debate …”

Clearly Governor Rounds, the “leaders” have ignored not only us and our letters, but also the law – Article VI, Section 19, Article VII, Section 1, Hoogestratt and Attorney General Official Opinion, 88-28 – and have illegally taken a side in the debate. Further, this illicit conduct by the “leaders” has now inspired, encouraged and emboldened other government actors to follow them in violating the law regarding Amendment E.

For example, on April ___, 2006 the Roberts County Commission adopted a
resolution condemning Amendment E. That was followed by the Rapid City
Council adopting a similar resolution during the week of April 17, 2006 and then the Pennington County Commission on April 25, 2006 adopting a resolution opposing Amendment E.

Further, at www.No-on-E, they claim that the following County Commission Boards have also adopted the resolution opposing Amendment E: Aroura, Bennett, Brown, Brule, Clark, Day, Douglas, Edmonds, Grant, Hand, Jerauld, Lawrence, Lincoln, Lyman, Meade, Perkins, Roberts, Stanley, Walworth,

Clearly Governor Rounds, the above conduct by these government actors has interfered with an election on an initiative measure and violates Article VI, Section 19, Article VII, Section 1, Hoogestraat and Attorney General Official Opinion 88-28. Thus our reason for writing to you Governor Rounds.
We hereby formally request that you enforce the law, and that you:

1. investigate the actions by both the house and senate regarding HCR 1004
(and that of the other local government entities);
2. determine whether the actions by the house and senate (and other local
government entities) regarding HCR 1004 have violated the law (Article VI, Section 19, Article VII, Section 1, Hoogestraat, Attorney General Official Opinion and federal voting rights);
3. if you find that such conduct violates the law, publicly declare such;
4. notify the offending government actors of their illegal conduct; and,
5. order the offenders to cease and desist from engaging in such further
illegal conduct.

Governor Rounds, the importance of Amendment E, and just how large is the problem of judicial unaccountability, is exemplified in the following recent articles (copies attached).

1. 4/27/06 “Sensenbrenner, Grassley Introduce Legislation Establishing an
Inspector General for the Judicial Branch”, U.S. Newswire;
2. 4/28/06 “Lawmakers Call for Judiciary Watchdog”, Associated Press, by
Laurie Kellman;
3. 5/01/06 “Watchdog Group Singles Out ‘Junketing Judges’”, Legal Times,
www.law.com, Tony Mauro;
4. 5/03/06 “How to Influence Judges”, USA Today editorial;
5. 5/05/06 “Judge Pickering Wants Constitutional Amendment to Stop
‘Politicized Judiciary’”, Human Events, by Mandy Stoltzfus;
6. 5/07/06 “Complaint Against Judge Has Broader Ramifications – Judicial
Panel Says It Lacks Power to Sanction L.A. Jurist – Bill Would Create Inspector General” , LA Times, by Henry Weinstein: and,
7. 5/08/06 “Legislature to Review Its Relationship with Judiciary”,
Associated Press, www.boston.com, by Matt Apuzzo.

Further evidence of how our government does not abide by and does not follow our Constitution, can be found in the following recent books by Judge Andrew P. Napolitano.

1. CONSTITUTIONAL CHAOS: What happens When the Government Breaks Its Own Laws , (2004) Nelson Current; and,
2. The CONSTITUTION In EXILE: How the Federal Government has seized Power by Rewriting the Supreme Law of the Land, (2006) Nelson Current.

Another issue we must bring to your attention Governor Rounds, is the attached copy of the December 8, 2005 Board of Bar Commissioners meeting “Minutes”, which in pertinent part state:

“A meeting of the Board of Commissioners was held … December 8, 2005.
Attending were President Bob Ritter, … Secretary-Treasurer Barnett. Chief
Justice Gilbertson also attended. [P] The purpose of the meeting was to consider a draft campaign plan prepared by Tom Barnett to respond to the J.A.I.L. initiative. President Ritter led a discussion of the campaign plan. The Chief Justice commented briefly. … [P] Barnett informed the Commissioners that the campaign would be very expensive, perhaps costing as much as $1 million. …”

Such conduct might also be in conflict with the law, being an expenditure of mandatory bar dues to fund a cause not germane to all members, but instead funding activities of an ideological nature outside the purposes of state bar’s public charter. Keller v. State Bar of California, 496 U.S. 1 (1990).

It also appears that Chief Justice Gilbert, contrary to his statements in the Hoogestraat case, has also “taken sides”. Clearly his appearance alone, at that meeting, suggests an appearance of impropriety and points to the lock-step and “defend at all costs” unitary relationship between the bar and bench. Clearly this unmasks the constant hallowed claim of judicial “independence” and shows the true political and power nature of the judiciary, all to the detriment of the interest of the People.

Governor Rounds, one would think that you would be especially sensitive to these issues in light of the Argus Leader investigation and report on your use of a state plane for your personal use. Recall where an Argus Leader editorial wrote that taxpayer airplanes should only be used for government (taxpayer) business and “They’re not our Governor’s personal toys”.

Further, Governor Rounds, one would think that you would also be sensitive on voting rights issues, in light of the series of voting rights cases concerning Charles Mix, Shannon and Todd counties. As reported in Indian County Today, January 13, 2006, article, “Supreme Court Denies Voting Rights Case”, the U.S. Supreme Court refused to hear South Dakota’s appeal of a three-judge federal panel ruling, that South Dakota was in violation of the Voting Rights Act. The article concluded:

“’The actions of the South Dakota Legislature to silence the voice of Native American voters have been shameful. We are pleased that the Supreme Court put this matter to rest, but we are saddened that state officials would rather file costly appeals than obey the law to protect the rights of all South Dakota citizens,’ said Jennifer Ring, executive director of the ACLU of the Dakotas.”

And more recently, “Court reinstates Voting rights Case Against city of Martin”, May 6, 2006, Associated Press, SiouxCityJournal.com, reported:

“A federal appeals court on Friday reinstated a lawsuit that accuses the city of creating city council districts that violate the voting rights of American Indians. [P] The 2-1 ruling by a panel of the 8th Circuit Court of Appeals will require a federal judge in Dakota to hold further hearings that could lead to redrawing of city council districts.”

Governor Rounds, we believe that the doctrine of absolute judicial immunity is just flat out wrong. Wrong for the following reasons:

1. it is an anachronistic relic;
2. it is inconsistent with basic principals of constitutional law;
3. it places government ahead of safeguarding the People’s rights;
4. it is not mentioned in the Constitution;
5. it is borrowed from England – “the King can do no wrong”;
6. it is contrary to the Constitution (Article VI) being the supreme law;
7. it is contrary to the central maxim that no one is above the law;
8. it places the judiciary above the law;
9. it ensures that some citizens injured by judges will have no remedy;
10. it renders the judicial role of upholding the Constitution illusory;
11. it undermines the very essence of civil liberty.

Amendment E directly challenges the doctrine of absolute judicial immunity.
46,800 South Dakota citizens want this issue debated and voted on in November.

Governor Rounds, we hope that you will do your duty, enforce the law and see to it that the citizens of South Dakota get a free and equal election regarding Amendment E, with no governmental power, civil of military, interfering to prevent the free exercise of the right to debate this issue and to vote on it.

One final question Governor Rounds, have you used your office (or public
funds) to take a public position on Amendment E?

We await your reply and actions Governor Rounds.


Bill Stegmeier, Treasurer
South Dakota Judicial Accountability Committee


1. BS 3/03/06 letter to “leaders”;
2. BS 3/17/06 letter to “leaders”;
3. 4/27/06 article “Sensenbrenner, Grassley Introduce Legislation
Establishing an Inspector General for the Judicial Branch”;
4. 4/28/06 article “Lawmakers Call for Judiciary Watchdog”;
5. 5/01/06 article “Watchdog Group Singles Out ‘Junketing Judges’”;
6. 5/03/06 article “How to Influence Judges”;
7. 5/05/06 article “Judge Pickering Wants Constitutional Amendment to Stop
‘Politicized Judiciary’”;
8. 5/07/06 article “Complaint Against Judge Has Broader Ramifications –
Judicial Panel Says It Lacks Power to Sanction L.A. Jurist – Bill Would Create Inspector General”;
9. 5/08/06 article “Legislature to Review Its Relationship with Judiciary”.

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