updated 3/15/2004 6:34:23 PM ET 2004-03-15T23:34:23

Bill Janklow was on duty as South Dakota's congressman when his car collided with a motorcycle last summer, meaning federal taxpayers would pay any civil damages arising from the fatal crash, a prosecutor has concluded.

U.S. Attorney Tom Heffelfinger's decision came in connection with a wrongful death lawsuit filed against the former congressman and governor by the motorcyclist's family.

In concluding that Janklow was on duty at the time, Heffelfinger filed a notice Monday asking that the case be moved from state to federal court, and the federal government be substituted as the defendant for Janklow.

Randy Scott, of Hardwick, Minn., was killed Aug. 16 when his motorcycle struck the back of a car Janklow was driving. Janklow spoke earlier that day in Aberdeen and was returning to his home near Brandon when the accident happened.

Lawyer Ronald Meshbesher, who represents the Scott family, said he'll try to keep the case in state court where, unlike federal court, the family could win punitive damages.

"I'm not sure what duty he was doing for the taxpayers of the United States or the state of South Dakota by driving 80 miles an hour through a stop sign," Meshbesher said. "And quite frankly, if he was politicking before it happened I'm not sure that's considered to be on duty."

At Janklow's trial, a Highway Patrol accident specialist estimated Janklow's speed at 71 mph when he ran the stop sign. A witness for Janklow suggested it was closer to 64 mph.

Also Monday, the state Supreme Court rejected Janklow's request to be released from jail while he appeals his conviction. Janklow was convicted in December of second-degree manslaughter, reckless driving, speeding and running a stop sign. He is serving a 100-day jail sentence.

Circuit court judges heard his request while he appeals after all five Supreme Court justices removed themselves from the case because Janklow appointed them when he was governor.

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