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].
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.