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Court Hears Arguments Against Out-of-State Money Ban Friday Morning; Everybody’s Coming!

Marty Jackley’s effort to consolidate his big-money clients’ lawsuit against Initiated Measure 24 with my humble challenge to that very same unconstitutional ban on out-of-state contributions to ballot question committees will not delay my first appearance in federal court tomorrow. But it may make Judge Charles Kornmann’s Aberdeen courtroom notably more crowded on Friday morning.

On Monday, Judge Kornmann told Jackley and the state to get their poop in a group and join us in court Friday:

Understandably miffed at being rushed by Jackley’s consolidation motion while struggling to get out from under the arguments with which my own lawyer is pummeling them, the state moved yesterday to stay the proceeding, saying it would be nice to have the full time allowed to dig up more arguments on Jackley’s lawsuit, like their contention that the Koch Brothers’ Americans for Prosperity doesn’t have standing, because it’s been registered in South Dakota for more than four years and thus will not be affected by the loopholey out-of-state money ban:

Still, the state is willing to move ahead with the hearing on my separate lawsuit Friday, saying that since the “legal similarities” between my case and the Kochs’ are “profuse,” our hearing tomorrow could effectively resolve both issues and save the court, the plaintiffs, and the state lots of time and money (which is what I said here on the blog Sunday). The state also notes that moving forward Friday and handling my case could spare the state from unnecessary liability:

Moreover, a stay should be granted to avoid increasing the State’s exposure for potential liability. See Frable v. Synchrony Bank, 215 F. Supp. 3d 818, 821-22 (D. Minn. 2016) (considering whether a stay will conserve the parties’ resources and judicial resources). In both cases, the plaintiffs have requested attorney’s fees and costs. See Complaint, Doc. 1, Prayer for Relief D.; SD Voice, Complaint, Doc. 1, Request for Relief 2. Upon consolidation, attorney’s fees will continue to accrue in both cases. Therefore, if the Court were to grant the requested relief of attorney’s fees in both cases, the Court has, at the very minimum, unnecessarily doubled the State’s liability [Stacy Hegge, State’s Memorandum in Support of Motion to Stay and Memorandum in Response to Plaintiffs’ Motion for Consolidation and Transfer, SDNA et. al. v. Barnett, 2019.05.01].

The state also offers a cheeky little footnote on the cost of paying off all the lawyers who are about to beat them:

In all likelihood, attorney’s fees for this case will be considerably greater than in SD Voice, considering that five attorneys are named for the Plaintiffs on some of the filings. See, e.g., Plaintiffs’ Joint Motion for Preliminary and Permanent Injunctive Relief, Doc. 6, Plaintiffs’ Memorandum in Support of Preliminary and Permanent Injunctions, Doc. 7. Also of note, two of the Plaintiffs’ attorneys are out-of-state attorneys, possibly increasing the costs even more [Hegge, State’s Memorandum…, 2019.05.01].

Jackley and Heidelberger, on the same side of the First Amendment!
Fighting for your First Amendment rights—If this case works out, maybe Jackley/Heidelberger 2022?

Translation: why does it take Marty Jackley and the Koch Brothers five lawyers to do what Heidelberger can get done with one?

Nonetheless, Assistant Attorney General Hegge says the state will be ready to defend in both cases on Friday morning. No one is filing for any delays. So tomorrow morning, watch former Attorney General Marty Jackley troop into the federal courtroom in Aberdeen with the Koch Brothers, the South Dakota Chamber, the South Dakota Retailers, the South Dakota Broadcasters and Newspapers (ooo… I bet they’ll bring reporters!) to follow liberal blogger Cory Allen Heidelberger into battle against an unconstitutional law written by G. Mark Mickelson. No need to take your One-a-Day tomorrow: SD Voice v. Noem and SDNA et al. v. Barnett promise your full day’s supply of irony.


  1. leslie 2019-05-02 08:28

    One word: horsepower.

    Stacey has all the staff lawyers and perhaps out-house counsel she needs in a rush. The other plaintiffs have sky’s the limit access to in/ out of state lawyers wetting their pants to bill a rush-job to the Kochs ect.


  2. Otter 2019-05-02 09:55

    “There is no Earthly way of knowing… which direction we are going. There is no knowing where we’re rowing, or which way the river’s flowing. Is it raining? Is it snowing? Is a hurricane a’blowing? Not a speck of light is showing so the danger much be growing. Are the fires of hell a’glowing? Is the grisly reaper mowing? YES! The danger must be growing for the rowers keep on rowing AND THEY’RE CERTAINLY NOT SHOWING ANY SIGNS THAT THEY ARE SLOWING!!” – Willy Wonka, Willy Wonka & the Chocolate Factory

  3. Donald Pay 2019-05-02 10:25

    Cory asks: “Translation: why does it take Marty Jackley and the Koch Brothers five lawyers to do what Heidelberger can get done with one?”

    I’ve noticed that the more corrupt they are the more attorneys they hire.

  4. bearcreekbat 2019-05-02 11:02

    As you have suggested Cory, strange bedfellows indeed!

  5. jerry 2019-05-02 11:14

    Law and order republicans, left the building decades ago. What we are left with are high dollar empty suits that feed off the carcass of democracy.

  6. Nick Nemec 2019-05-02 11:15

    Did I just read correctly thet the Koch brothers are considered “in state” because they have a fictional entity registered with the state? Sweet baby Jesus, what in the hell is the purpose of the law banning out of state money if it can be circumvented by paying the the Sec. of State $50? Guys like the Koch brothers will simply register an entity years ahead of time on the outside chance they may have to pump millions into the state at some time to oppose or support a ballot measure.

  7. mike from iowa 2019-05-02 12:25

    Drumpf doesn’t trust any lawyer he hires, so he hires more to keep an eye on the previous hires. Drumpf did say he was smarter than any of his lawyers, generals and everyone else, not to mention he has the world’s best memory (it doesn’t work when asked hard questions like what is your name) and he is the world’s greatest negotiator.

  8. Debbo 2019-05-02 16:04

    “Law and order republicans, left the building decades ago. What we are left with are high dollar empty suits that feed off the carcass of democracy.” Jerry

    One of the best descriptions of today’s SDGOP and GOP leadership.

  9. Cory Allen Heidelberger Post author | 2019-05-02 18:40

    Nick, you capture perfectly the loopholiness of this law that demonstrates it wasn’t really designed to keep out-of-state money out, just the out-of-state money that might most benefit grassroots organizers, the small donations from individuals around the country who might take an interest in the occasional ballot measure but aren’t ever going to form a paper corporation to sustain an ongoing presence in the state. IM24 is a trick, foisted on us by G. Mark Mickelson, intended to keep measures with grassroots support from gaining allies out of state an thus ensuring that the established big-money powers tighten their grip on South Dakota’s “sovereignty.”

    That’s a political argument about effects… but it might be good enough to include in tomorrow’s arguments, to demonstrate that the law is not narrowly tailored to meet the compelling interest the state is claiming it has in limiting out-of-state interference. But would I really want to make that argument while sitting at the same table as Marty Jackley and the Koch Brothers?

    What am I saying? Of course I would!

  10. Debbo 2019-05-02 23:49

    Of course you would! ☺☺☺

  11. Nick Nemec 2019-05-03 05:52

    I sure as hell would. The law prohibits money from little guys and allows it from the biggest sharks in the ocean.

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