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Daugaard's budget calls for $1M to defend abortion law, other cases

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Next year’s South Dakota budget calls for more than a million dollars in supplemental funding for the state’s legal fund, including small fees for several high-profile cases but the potential for big expenses defending a controversial abortion law.

Gov. Dennis Daugaard’s budget proposal asks for the Legislature to add $1.043 million to the state’s Extraordinary Litigation Fund, which pays for legal costs above and beyond the ordinary.

In July, that fund had just under $150,000 – against expected costs of $1,225,000 over the next year.

It’s not unusual for the Legislature to have to refill the Extraordinary Litigation Fund. Lawmakers put $944,610 into the fund in 2010, and added $2.2 million in 2008.

Most of the Legislature’s projected costs come from two lawsuits: the 2005 Planned Parenthood vs. Rounds case over the state’s “informed consent” law, and ongoing “diligent enforcement” legal disputes with tobacco coverage.

The state Office of Risk Management predicts the Planned Parenthood case to cost South Dakota $750,000 in Fiscal Year 2012, which runs through the end of June 2012.

It isn’t clear what those costs could indicate. A three-judge panel on the Eighth Circuit Court of Appeals struck down part – but not all – of that law in September. The entire Eighth Circuit is scheduled to hear the case on Jan. 9.

If South Dakota were to lose that lawsuit, it could be required to pay Planned Parenthood’s legal fees. When South Dakota lost Planned Parenthood v. Janklow earlier this decade, the state paid around $410,000 in legal fees, a Planned Parenthood spokesperson said.

A spokesperson for the South Dakota Attorney General’s office did not respond to a request for more information about this lawsuit, or other lawsuits the state faces.

Tony Venhuizen, a spokesperson for Gov. Dennis Daugaard, said the state did not expect any costs this year from defending 2011 abortion legislation which, among other things, required a 72-hour waiting period before an abortion. Part of the state’s costs in defending that law from a lawsuit filed by Planned Parenthood will be paid by outside groups, Venhuizen said.

Other costs could be paid from the special Life Protection Fund set up by the state to accept donations to defend abortion laws.

As of last week, that Life Protection Fund had $63,387 in it, with no donations received since August.

The “diligent enforcement” tobacco lawsuit has projected legal fees for 2012 of $300,000.

Many of the states are currently engaged in those disputes with tobacco companies, fallout from settlements made over the past 15 years.

The other predicted legal costs for the state are all less than $100,000 – including several high-profile cases.

For example, South Dakota’s legal challenge to the federal Patient Protection and Affordable Care Act is expected to cost the state $25,000. Other states are taking the lead and paying the bulk of the costs in this lawsuit.

A lawsuit challenging the state’s smoking ban has projected costs of $10,000 this year. The state’s involvement in a lawsuit over adult business zoning in Sturgis is expected to cost South Dakota $20,000.

The Tice and Young v. South Dakota Retirement System lawsuit, filed by retirees challenging cuts to retirement cost-of-living benefits, could cost the state $75,000 in fees.

Some of these costs may have already been incurred since the fiscal year began in July.

Venhuizen said it’s typical to treat legal fees as an extraordinary expense, rather than part of the budget. He said it’s too hard to predict the state’s legal costs 15 months in advance and that it’s easier to deal with the costs as a mid-year supplemental.

Contact David Montgomery at 394-8329 or

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