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AG’s Office Fails in Ethical Obligation, Misleads Court in Attempt to Block Awards to Prevailing Plaintiffs in IM24 Lawsuit

House Bill 1024 asks for $800,000 to be plunked into the state’s extraordinary litigation fund. HB 1024 includes an emergency clause to appropriate that money right now.

The state might have fewer legal funding emergencies if the Legislature passed fewer bad laws. In an embarrassing one-two punch yesterday, hot on the heels of his ruling against the state and 2019 HB 1094 in SD Voice v. Noem II, U.S. District Court Judge Charles Kornmann yesterday ordered the state to pay plaintiffs’ legal fees in SD Voice V. Noem I, in which plaintiffs defeated the unconstitutional ban on out-of-state contributions to ballot question campaigns that voters tried to enact last year.

In SD Voice v. Noem I, Judge Kornmann orders the state to pay my attorney Jim Leach $33,689.30 in legal fees, expenses, and costs. In the companion lawsuit against IM 24 from the newspapers, broadcasters, retailers, Chamber, and other rich people, Judge Kornmann ordered the state to pay Marty Jackley and his legal team $80,420.80.

Leach originally asked for $31,279.30; Team Jackley asked for $86,905.

In his order on fees, Judge Kornmann cites multiple instances in which the cases the state cited in its arguments against compensation didn’t really say what the state claimed:

Defendants have failed in their ethical obligation to advise the Court that the Ninth Circuit in Thorsted v. Gregoire held that “several of the circumstances identified by the district court would be insufficient, standing alone, to warrant a denial of fees.”…Further, the Ninth Circuit has since rejected Thorsted, noting that many of the factors cited therein “are largely unique to that case… as well as being, in part, in adequate grounds for denial of fees.”

…Defendants argue that U.S. District Judge Schreier held that “a reasonable rate within the District of South Dakota is $175-$210 depending on the experience of the attorney,” citing Argus Leader Media v. United States Dep’t of Agric… (D.S.D.Aug.3,2017). Defendants have attempted to mislead the Court in that regard. What Judge Schrier held is that “[t]his court has previously held that a reasonable rate within the District of South Dakota is $175-$210 depending on the experience of the attorney.”… The fees in Argus Leader were generated beginning in 2011. Judge Schreier in no way implied that the market rate in South Dakota in 2017 was no more that $210. In fact, in the Argus Leader case, counsel for the defendant was only seeking $200 per hour and Judge Schreier awarded fees at the requested rate.

Defendants cited only old case law in support of their objection to Mr. Leach’s requested rate and have attempted to mislead the Court about that law.

…Defendants object that such expenses are part of overhead and not properly included in a fee award. Defendants cite a 1993 case for the proposition that, in the Eighth Circuit, computer-based legal research may not be separately added to the fee award. Once again, defendants have attempted to mislead this Court as to the law. The United States Court of Appeals for the Eighth Circuit has held that “CLR is now a common litigation expense, and it may be reimbursable.”… (2016)… [Judge Charles Kornmann, Opinion and Order, SD Voice v. Noem I and SD Newspaper Association et al. v Noem, U.S. District Court of South Dakota, 2020.01.09].

Failing in one’s ethical obligation and misleading the Court—hmm… when an Attorney General does that, does he commit an impeachable offense?


  1. Donald Pay 2020-01-10 08:34

    In light of the recent decision, some of the adults in the Legislature, if there are any, might want to huddle with you, Jim Leach and others to discuss what changes they ought to make to the unconstitutional structure around the initiative and referendum they have constructed over the last 20 years. It would be wise for the Legislature to fix those deficiencies before you tee up another initiative, and another court case.

  2. jerry 2020-01-10 08:52

    Good work Cory. The big question to me is how in the world we ended up with such a dud like The Raven. One thing for sure, The Frankenstein and her Igor, Jackley, are raking in the big bucks covering up the Raven’s doo doo. Seems to answer my big question, the Raven just acts as a conduit money transfer. Jackley perfected it with his dangerous federal lawsuits that cost South Dakota taxpayers a bundle and now he gets paid for his efforts.

  3. Richard Schriever 2020-01-10 09:46

    As I’ve said many times – and continue to say – we need an initiated measure to amend the constitution to take the legislature OUT of the IM and R process altogether; to make the ONLY way to alter or challenge IM and R decisions by voters – another IM or R. Until we do, the legislators will continue to attack the IM and R process AND its outcomes.

  4. Donald Pay 2020-01-10 11:52

    Richard may be right. When the I&R was amended into the Constitution, it had strong legislative support. At some point in the 1980s, special interests started lobbying the Legislature against the initiative and referendum, seeking, at one point, to repeal I&R. That, of course, went nowhere, but gradually over about 20-25 years the special interests have added and amended statutes to make it less amenable to grassroots citizens and more amenable to special interests. The enemy is not necessarily the Legislature, but the corruption of the Legislature by the special interests. Still, we saw how the Legislature acted when the people enacted corruption reform measures. At this point the Legislature is a corrupt institution. There is no reason to trust it with the people’s rights.

  5. bearcreekbat 2020-01-10 12:17

    Instead of declaring “at this point the Legislature is a corrupt institution,” wouldn’t it be more accurate (or at least less destructive to respect for the institution) to declare “at this point the Legislature is influenced by a majority of corrupt elected legislators?”

    The first phrase simply feeds into the constant but unfortunate denigration of one branch of our constitutional government, while the second phrase recognizes that not all legislators are corrupt and implies that voters can correct the situation by electing a sufficent number of honest legislators.

  6. Donald Pay 2020-01-10 12:53


    I think there comes a point where it’s all the same. The “one bad apple” saying applies. When the body as a whole refuses to push back on the corruption of the bad apples, you’ve got a corrupt institution. It’s so bad that legislators can’t even see the rot that’s all around them, because they think it’s normal.

  7. bearcreekbat 2020-01-10 13:11

    While I get your point about your perception of rot throughout a majority of elected legislators, I would think you might agree that not every legislator is corrupt. And using terminology that paints the institution as corrupt, rather than identifying specific corrupt members, does virtually nothing to educate the public about just who is causing the problem so voters can correct it with their votes, if they so choose. Indeed, if people believe the institution itself is corrupt then what incentive would they have to vote?

  8. Debbo 2020-01-10 18:19

    I think BCB is right. There needs to be a little room for voters to see light at the end of the tunnel.

    In the meantime, the first IM ought to be what Richard suggested.

  9. Richard Schriever 2020-01-11 12:36

    And don’t muddle it up with complicated language, or other “related” issues.


    “Any law enacted or constitutional amendment adapted by means of a direct vote of the people in favor of an Initiated Measure shall only be altered or rescinded by a direct vote of the people via a subsequent Referendum.”

    There need be no other language. Let the Republicans argue against it that “The people aren’t smart enough” to govern themselves. Let’s see where that gets them.

  10. Donald Pay 2020-01-11 13:39

    I opposed something like Richard proposes for many years. No proposed law is perfectly phrased, and clarifying amendments are often needed. There are unintended consequences that have to be addressed through amendments. It would be nice if the various Departments and the Legislature would work with sponsors to make changes to initiated measures, if needed. The DENR pointed out to me a couple of instances where they wanted to clarify something in our solid waste initiative. They were a little bit afraid, I think, that we would put up a fight, but we saw their point was valid. We agreed to those amendments, and they passed the Legislature. All it takes is a little communication and respect both ways.

    I think that trust between citizens and government officials has broken down everywhere. The South Dakota Legislature’s response to the anti-corruption initiative was worthy of Putin, not a responsible and responsive democratic institution. They should have let the measure go into effect to see whether and where changes might need to be made. Instead they gutted the entire law.

    It might be best to simply cut them out of the people’s lawmaking altogether, as Richard suggests, but maybe there is some other institutional reform that can be applied.

  11. Cory Allen Heidelberger Post author | 2020-01-11 21:04

    Don’t forget, this $114K cost to the taxpayers came from an action of the taxpayers themselves, or at least the tens of thousands of them who lined up behind Mark Mickelson to vote for another Republican attack on initiative and referendum. There’s plenty wrong with the Legislature as currently run by the SDGOP, but the voting majority in 2018 incurred this error and this expense. IM 24 might be a good example of Donald’s point, that sometimes a measure enacted by the public may require some fixing to avoid legal trouble.

    Note also that this particular ruling on attorney fees in SD Voice v. Noem I speaks loudly and clearly to the rot in the Attorney General’s office, not in the Legislature. The Attorney General put forth arguments that the judge labels as unethical and misleading. That’s flat-out legal malpractice. Shouldn’t there be consequences? Shouldn’t someone get a talking-to from the state bar association?

    At the very least, an aspiring Republican lawyer (or a vengeful Russell or Fitzgerald) could easily make hay of this ruling on attorney’s fees at the 2022 GOP convention, arguing that Ravnsborg can’t even put together an honest argument on lawyer fees in a suit that he lost to Cory Heidelberger. A Democratic candidate for AG in 2022 could easily throw the quotes from this order up on a 30-second ad: “…failed in their ethical obligation… attempted to mislead the court… no lawyer should act like that, especially not our top lawyer. South Dakota deserves better. South Dakota deserves a true Attorney General.”

    That said, I would be happy to sit down with legislators and discuss measures they might take to improve I&R without trampling on anyone’s Constitutional rights and subjecting the state to more embarrassing losses in court by its apparently incompetent and unethical Attorney General.

  12. Donald Pay 2020-01-11 21:54

    I just started looking at some of the statutes added since I left the state (2001). I notice they’ve got some minor changes drafted in an introduced bill this year. Maybe that bill could be hoghoused for a major reform of the process. Put it to them this way: it’s gonna cost them a lot less in attorneys fees to make the changes now versus after you sue them and win again.

    What a mess of nonsense they’ve made. I do think initiatives should go through LRC for drafting, but the timelines are just ridiculous. We were lucky enough to have legislators willing to help us get that to happen. We had our concept drafted up, partly with my research and an outside lawyer. Then we’d go to LRC with a legislator. Doing it that way took about a week, at most two, to get it from LRC. We did most of our initiatives this way.

    I think the AG stuff in the pre-petitioning and petitioning phase is unconstitutional. You think if its such a good idea, the Legislature should do it for their bills. Fat chance that they would allow that to happen. For one, it’s forced speech. For another, it would be an infringement on separation of powers. It’s the same with the people’s legislating process.

    If the AG wants to weigh in, he can speak like everyone else, but forcing his speech onto the petitioning process is absolutely unconstitutional.

    Fiscal notes? I think fiscal notes are generally worthless guesses. But, if you are going to have them, they should be done after the petition is certified. That would be more in keeping with the legislative process. Before bills are introduced they don’t have a required fiscal note attached. Again, this is the Legislature forcing speech.

    As far as the AG ballot explanation stuff: it’s gotta go. Again, it violates separation of powers. When the I&R passed, there was no LRC, so I guess they did the easiest thing. But South Dakota has had competent legislative staff for decades. They write nearly all of the legislation that gets passed every session. They should be writing the explanation that gets placed on the ballot.

    At any rate, there’s much more to reform. If I can get to it in the next few days, I’ll follow up.

  13. John 2020-01-12 11:58

    I think I get it now. I was a little s l o w picking this up.
    The SD legislature’s role (to include those retired judges, attorneys, and other civic leaders in the body), is to funnel tax payer money to attorneys for fighting legislative nonsense.
    That’s brilliant!

  14. Richard Schriever 2020-01-12 12:00

    Mr. Pay, I do not propose that any IM is inalterable – only the means by which those alterations may occur. As with any law, it may be challenged in court as to its constitutionality, and THAT process need not be written into the language any more that it needs be written into the language of any bill passed by the legislature. Another IM may be used. It simply assures that – as has happened in the past – no IM can be ENTIRELY NULLIFIED by a few elected officials who don’t agree with it, before it can even be implemented. If the language is bad – let that be the argument of those opposed during the campaign for passage. If it turns out to not work as intended – let it be amended – by the SAME PROCESSES – and people – as those that brought it to being.

  15. Richard Schriever 2020-01-12 12:09

    PS – please note in relation to “separation of powers” that ALL POWER emanates from the people. I.E., “the people” (not some constitutionally created incorporated branch’s “representation” of them) hold ALL of the power. The ACTUAL PEOPLE hold ALL the power – that is the very essence of our nation.

  16. Debbo 2020-01-12 16:55

    What Richard said.

  17. Cory Allen Heidelberger Post author | 2020-01-13 05:39

    Donald, I like your agenda for I&R reform. The core principle should be to treat initiating citizens with the same respect and afford them the same services that elected legislators receive. We are exercising the same power; wherever possible, with obvious exceptions for timeframe, we should have similar processes.

    In particular, I like the idea of removing the Attorney General from the process… especially this Attorney General, who has demonstrated his incompetence and lack of ethics in arguing against the proper legal fees for the prevailing parties in this case.

  18. Cory Allen Heidelberger Post author | 2020-01-13 05:40

    John, notice that in SD Voice v. Noem I, overturning IM 24, Mark Mickelson created an unconstitutional boondoggle that allowed members of the state’s favored lawyer class, Marty Jackley and Sara Frankenstein, plus an out-of-state lawyer for an arch-conservative lobbying group, to take home more money than my single attorney got.

  19. leslie 2020-01-19 19:09

    So will the REPUBLICAN SD BAR ASSN look into Ravensburg’s unethical acts?

    Still awaiting moderation on previous post Cory. Thx

  20. Cory Allen Heidelberger Post author | 2020-01-22 19:39

    Leslie, I am surprised that the press hasn’t picked up on this story about misconduct by our state’s chief lawyer.

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