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State Demands Jury Trial in SD Voice v. Noem II

Perhaps I am persuading South Dakota’s one-party regime to trust the people more. In the state’s response to my legal challenge to its unconstitutional suppression of our right to petition our government, Assistant Attorney General Holly Farris demands a trial by jury:

It makes sense that the state would seek to put the fate of its looming circulator badging and registry requirement and its absurdly early deadline for initiative petitions in the hands of twelve regular citizens. Why come back to Aberdeen just to have Judge Charles Kornmann take them to school again on the First Amendment and the rights of petitioners? The Attorney General’s flimsy arguments about the dangers of Americans from somewhere other than South Dakota speaking up about South Dakota’s politics withered under the glare of serious judicial scrutiny before the state got to say its first words in the courtroom. Maybe the state thinks its wild warnings about stranger danger (and the compelling need it contends arises therefrom to force South Dakotans to get government permission to circulate ballot question petitions, surrender their personal phone number and home address to harassing opponents, and race to submit petitions a full year before the election) will fare better with a jury of South Dakotans rather than with a robed scholar who earns his paycheck by daily scrutinizing the Constitution.

But even a jury has to rule on the law and the Constitution, not the contrived xenophobia and anti-democratic sentiments of our Executive and Legislative branches. I’ll make the law and the Constitution clear to whoever decides this case, whether it’s one person or twelve.


  1. Realist 2019-08-22 07:51

    They had to plead the request for a jury trial in a response pleading, otherwise it is waived. Not a groundbreaking revelation there.

  2. mike from iowa 2019-08-22 08:17

    In light of what Realist says, Cory’s points hold even truer. I am shocked that an embarrassingly red run state can’t judge shop to get favorable opinions.

    Shut it, trolls. Even you aren’t naive or stoopid enough to believe wingnuts don’t stack the judiciaries with ideologues every chance they get.

  3. Realist 2019-08-22 08:27

    Mike from Iowa – I guess I don’t understand your point. Pleadings are under the rules of civil procedure for SD courts. So I agree, his point holds true – “South Dakota follows the rules of civil procedure”.

  4. mike from iowa 2019-08-22 08:58

    Realist, maybe I misunderstood your post. It sounded , to me, like a jab at Cory because of your choice of, “Not a groundbreaking revelation there.”

    Like Cory suggested, the state didn’t have to plea. They could have let a judge decide. The state chose the jury in hopes of a more favorable decision for them.

  5. Realist 2019-08-22 09:06

    Incorrect. Cory filed an initial pleading, that the State is obligated and required to respond. It just doesn’t stall from there and go straight to a judge. The State is required to respond to Cory’s initial pleading, of which they must request a jury trial, otherwise that is likely waived. And yes, no revelation here, its just a matter of civil procedure. It’s not groundbreaking that a party in a suit is following the rules.

  6. bearcreekbat 2019-08-22 11:59

    Realist is correct that a jury trial must be requested in the initial pleadings or it might be waived. That said, there doesn’t seem to be any basis for a jury trial in this case.

    Juries must decide questions of fact, but are not openly permitted to rule on questions of law or the meaning of the Constitution, contrary to the misconception that “even a jury has to rule on the law and the Constitution.”

    In civil cases like Cory’s case a judge can simply deny a request for a jury if the judge determines there are no questions of fact for a jury to decide.

    As an aside, it is a bit more complicated in criminal cases since a defendant has an absolute right to a jury trial even if there are no disputed questions of fact. If a jury trial is properly requested in a criminal case a judge has no power to deny a jury trial. The jury’s role in deciding questions of law in a criminal case is mixed. The judge will tell the jury that it has no such power and must accept the judge’s statements stating the law. But the absolute right to a jury trial in a criminal case coupled with the Constitution’s double jeopardy clause empowers a jury to nullify any law with which it disagrees so long as the jury decision benefits the defendant. The judge can set a side a criminal conviction based on a jury’s failure to apply the law, or dismiss all criminal charges based on the law without giving the jury a chance to rule, but the judge cannot set aside a jury acquittal. Our friend and frequent commenter, Bob Newland, has written extensively about this “jury nullification” power.

    Since Cory’s case is a civil case and since it appears to only raise questions of law, it is my bet that here the State’s request for a jury trial will be denied.

  7. Certain Inflatable Recreational Devices 2019-08-22 13:00

    Yeah. What bearcreekbat said.

  8. Debbo 2019-08-22 20:53

    I agree. With everything.

    (I’m just putting this here so I can be notified of future comments. 😊)

  9. Cory Allen Heidelberger Post author | 2019-08-22 22:42

    Realist makes a fair point and drives me back to read the details from our first go-round. Sure enough, in its Answer to our initial complaint in SD Voice v Noem I, the state makes the identical demand for a jury trial, which went nowhere.

    So is this line just boilerplate? Does a trial like this, a civil case on a question of the constitutionality of certain statutes, ever go to a jury trial in federal court? If it never happens, why does the request persist?

  10. bearcreekbat 2019-08-23 10:50

    Cory, at times questions of law are based in large part on the facts of the case. A jury can be appropriate to resolve whatever questions of fact can be anticipated that must be resolved prior to the judge’s ruling on the law or constitutional question. Since many cases involve both questions of fact and questions of law federal cases that address the constitutionality of a statute often empanel a jury to find the facts before the judge decides whether the statute in question is constitutional.

    Before requesting a jury, an attorney should try to anticipate what, if any, questions of fact might exist in the case, and then make a judgment whether his client would be better off with a jury or judge as the fact finder. In cases where the judge might be preferable it would be a mistake to request a jury trial. In my view, requesting a jury as a boilerplate pleading suggests laziness and incompetence on the part of the attorney and could result in malpractice liability.

  11. Debbo 2019-08-23 14:07

    “laziness and incompetence on the part of the attorney” in the Ravsbutt AG office!?! Well, he does set the tone. 😆😆😆

  12. leslie 2019-08-28 21:03

    not necessarily boilerplate but very expensive.

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