South Dakota’s lack of sunset law keeps us in the dark
Sunset laws and sunset regulations are laws and rules which may cancel the authority of an agency, law, regulation, or government program unless new legislation is passed to continue the authority beyond a fixed period of time. The sunset process in legislation also refers to a procedure for reviewing expired and expiring laws and regulations in a transparent manner. Texas will be reviewed in this piece as a model state for a sunset procedure.
In 2018 Wayne State University did a study on sunset laws in South Dakota. Removing cumbersome citations, the following is a summary of the study:
“South Dakota is one of three states with an irregular or ad hoc sunset process. According to the Council of State Governments, ‘South Dakota suspended sunset legislation in 1979. A later law directing the Executive Board of the Legislative Research Council to establish one or more interim committees each year to review state agencies was repealed in 2012.’ In contradiction to that assertion, we found a few instances of sunset clauses being attached to legislation in 2017. This appears consistent with the Baugus and Bose (2015) assessment that the sunset process is irregular and ad hoc.”
Those who make, change or indeed cancel the laws (legislatures as well as the U.S. Congress) have minimal interest in advising those affected by the adopted regulations and statutes. In 1979, South Dakota suspended its version of sunset legislation, and in 2012 state government instituted a rollback of requirements for the Executive Board of the Legislative Research Council (LRC) to routinely and systematically review state agencies. It appears a “more responsive” state government is one which travels backwards in time.
While the LRC today reviews state agency rules mostly for the consideration of proposed statutes, it is deficient in follow-up. To be clear, the state has no formal system or process for sunset review and advising the public. By way of illustration, South Dakota does not provide the public with a basic list of expiring laws and regulations. Consider that I received the following sunsetting email message as a member of the State Bar in March, “LLCs formed from 1993 through 1998 expire after 30 years. Bar Members should review client files to determine if any client entities are subject to this automatic expiration.”
South Dakota government should have a clearinghouse and single point of information for the benefit of the public on such issues. Texas has this.
A good sunset oversight model is the Texas Sunset Advisory Commission. This process was established through the Texas Sunset Act, passed in 1977, two years before the South Dakotan Legislature repealed its sunset legislation. The Texas Commission is composed of 10 lawmakers (from the state House and Senate) and two public members; their identities, backgrounds and opinions on previous legislation are publicly available on the Commission’s website, allowing Texans to see who exactly is presiding over sunset provisions and gauge how they might evaluate these provisions or respond to input in the future.
The website also includes a Public Input Form, which provides an avenue for constituency comments regarding whether provisions should be sunset, revised, or restructured; opportunities for input are likewise available through written commentary and in-person testimony at public hearings during review cycles.
Neither the departments of state government nor the South Dakota LRC maintain an established schedule for reviewing or re-reviewing existing regulations and statutes. The state legislature has no transparent, established process for reviewing its expiring laws and regulations. Texas in the deep South uses an established process. In maintaining an accessible website which permits public input, provides updates on ongoing sunset reviews, and records real time reviews of agencies and laws, Texas (of all the “progressive” jurisdictions) has such a process.
Should South Dakota choose to adopt a similar framework, the state’s indifferent negligence would be cured. Citizens would have the opportunity to be sufficiently informed on relevant government affairs, and give direct input, permitting constituency influence where it should be regarding statutes and regulations that often afflict citizens of the state.
The Legislature would develop an adequate (and necessary) understanding of the provisions it is supposed to oversee — an understanding that is currently missing. As an additional benefit, the Legislature would have a better understanding of agency affairs as well as the public’s opinion of existing laws and agency operations. Is it a fantasy to consider that the state might adopt, at least in part, a relevant process?
To paraphrase Laurence J. Peter, government defends the status quo long past the time when the quo has lost its status.
David L. Ganje is an attorney who practices natural resources, environmental and commercial law. The Ganje Law Office website is lexenergy.net.
Photo: public domain, wikimedia commons
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