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Noem Says Sponsors of Unconstitutional Laws Should Pay Legal Fees

The Republican attack on South Dakotans’ right to make their own laws continues. After overturning voter-approved Amendment A on a stretched legal technicality, Governor Kristi Noem this week launched a financial attack on the sponsors* of that marijuana legalization initiative, saying she intends to force them to pay her private lawyers for waging that lawsuit:

And though Noem unilaterally authorized the state’s involvement in the case against South Dakota For Better Marijuana Laws, the campaign committee responsible for putting the question of cannabis legalization before the voters, taxpayers shouldn’t have to foot the bill, said Ian Fury, a spokesman in the governor’s office.

“The proponents of Amendment A submitted an unconstitutional amendment and should reimburse South Dakota taxpayers for the costs associated with their drafting errors,” he told the Argus Leader, noting drafters of the ballot measure were warned by both the Legislative Research Council and the South Dakota Attorney General’s Office that the ballot measure was vulnerable to a legal challenge [Joe Sneve, “Gov. Noem Wants Pro-Marijuana Group to Cover Costs of Fighting Amendment A in Court,” Sioux Falls Argus Leader, 2022.01.14].

Matthew Schweich, campaign director for South Dakotans for Better Marijuana Laws, the sponsoring ballot question committee whom Noem is targeting, says there’s no way they’ll pay Noem’s lawyer bills:

South Dakota cannabis reform advocates have no obligation to pay for @govkristinoem‘s political crusade to overturn the will of the people. To suggest otherwise is ridiculous.

Amendment A was a sensible and well-drafted initiative approved by a majority of South Dakota voters at the ballot box, and it was only repealed due to a deeply flawed court ruling that relied on a far-fetched legal theory lacking evidentiary support.

Driven by her desire to deprive South Dakotans of personal freedom on cannabis, Gov. Noem went out of her way to create an unnecessary legal battle over Amendment A and used taxpayer money to do it. As a result of her actions, South Dakotans paid to have their own votes reversed [Matthew Schweich, tweets, 2022.01.14].

I have twice successfully sued the state of South Dakota to overturn unconstitutional laws. In 2019, a federal court overturned Initiated Measure 24; in 2020, the same federal court overturned 2019 House Bill 1094. In both cases, the losing party—the state—had to pay the prevailing party—me—attorney fees for the trouble we had to go to to defend the voters and the Constitution from South Dakota’s overreach.

So why shouldn’t Noem and her legal lapdogs, as the prevailing party in this lawsuit, get attorney fees for prevailing over the will of the people?

They should, just not from the sponsors of Amendment A. Noem’s lawyers should get compensation from the same source as my attorney did in SD Voice v. Noem I and SD Voice v. Noem II: the state of South Dakota.

Speaker of the House G. Mark Mickelson was the sponsor of and primary concocter of legal arguments for Initiated Measure 24. But I never envisioned suing him, much less charging him for my trouble. Representative Jon Hansen was the sponsor of and primary public and courtroom advocate for 2019 HB 1094. But I never envisioned suing him, much less taking attorney fees out of his attorney hide. G. Mark and Jon and Matthew Schweich and everyone else in this state are free to propose all the laws they want, hare-brained and otherwise, without incurring any legal liability. It’s the entity that enacts a hare-brained idea that bears the liability for violating the Constitution.

The state, through a popular vote, enacted IM 24. The state bore the cost of defending IM 24 and paying for its unconstitutionality.

The state, through Legislative votes and gubernatorial signature, enacted 2019 HB 1094. The state bore the cost of defending HB 1094 and paying for its unconstitutionality.

The state, through a popular vote, enacted Amendment A. The state bears the cost of defending Amendment A and paying for its unconstitutionality.

Sponsors of legislation, whether bills in the Legislature or initiatives on the ballot, certainly get the ball rolling. But sponsors do not enact laws: the body politic does. Sponsors may propose unconstitutional ideas, but those ideas violate no one’s rights until the body politic—through its elected representatives or through direct democracy—enacts those ideas. And upon enactment, liability for those bad ideas falls entirely on the enacting body—We the People.

Noem isn’t attacking the sponsors of Amendment A because she hates marijuana. She’s threatening SDBML with a six-figure legal bill because she and her party hate democracy. South Dakota Republicans have floated bills to impose legal costs on ballot question committees that would bankrupt grassroots organizations and thus scare low-budget citizen groups off the political field.

Shifting the liability for unconstitutional laws from the state to the sponsors of those measures could backfire on the Governor. After all, she has proposed at least four measures to the 2022 Legislature—prayer in school, transgender athlete bans, restrictions on teaching history and civics—that could face legal challenges (prayer, transgender, CRT trivial and substantial). If any of Noem’s hare-brained ideas are enacted and the courts overturn them, will Noem agree to pay the prevailing plaintiffs from her personal finances? If Rep. Fred Deutsch gets his anti-trans bill passed, or if Rep. Aaron Aylward and Sen. Jessica Castleberry get the Legislature to enact their police-defunding nullification bill, do we get to crush their personal finances when their bills fail in court?

With her threat to make Amendment A’s sponsors pay her lawyer bills, Governor Noem is like a terrorist pointing a gun on a plane at 30,000 feet. She thinks she’s hijacking the initiative process, but if she pulls that trigger, everybody’s in trouble, including her own squad of hijackers.

*The sponsors of Amendment A have also paid this blog $100 to advertise their current initiative petition drive. That sponsorship has no impact on the content, tone, or publication of my analysis of this issue.

36 Comments

  1. Amy B. 2022-01-16

    Noem should be on the hook personally for her ridiculous lawsuits. I imagine she’s going to get another check in the loss column when her second attempt at fireworks fails. And then the inevitable lawsuits resulting from her hateful, discriminatory bills.

  2. grudznick 2022-01-16

    Seems to me there is no difference between Mr. H suing and Ms. Noem suing. It’s is only the NDS which fogs Mr. H’s mind, while the smoke from the demon weed fogs the mind of those involved with the Amendment lettered “A”.

  3. Donald Pay 2022-01-16

    I say bring it. You get some figurehead poor person to be the sponsor. All of us who brought environmental initiatives in the 1990s were pathetically poor folk. I mean we had about a month’s rent in the checking account. Come take it and we’ll go on welfare. This kind of law only works against people who have money. It’s a way to keep the rich the hell out of the initiative system.

  4. grudznick 2022-01-16

    The rich fellows will create corporate entities, Mr. Pay, to foist their doings. The poor people will have their cars taken away, their cig money revoked, and their welfare garnished.

  5. Cory Allen Heidelberger Post author | 2022-01-16

    Again, Grudz ignores the legal argument and plies the personal. Lazy and irrelevant.

    The state bears sole liability for the enactment of unconstitutional laws.

  6. Cory Allen Heidelberger Post author | 2022-01-16

    Donald, I’d like to dare the Governor to try, but if we set a precedent for personal liability, I’m inclined to agree with Grudz’s second comment that it would be much easier to put the poor through the wringer, while the rich entities would simply absorb the losses as the cost of doing business. The only way we could win the dare is if we can limit the liability to the sponsoring ballot question committee, separate from the persons who form it. Then, yes, Noem and her fellow enemies of initiative would have slim pickings.

    Noem’s attack here is cover for the paradox she created, using taxpayer dollars to sue the taxpayers themselves. She never had a penny at risk in this challenge; as with all the federal aid supporting her budget binge and the subsidies supporting the Noem-Arnold farms, she is very good at spending other people’s money.

  7. bearcreekbat 2022-01-16

    The normal or “American” rule for litigation is that each party pays his or her own legal fees. This rule has been modified by a variety of state and federal statutes that shift the attorney fee liability to the losing party.

    In Cory’s lawsuits he successfully challenged the particular laws as violations of the U.S. Constitution. In such cases attorneys fees are generally awarded to the winner based on 42 U.S.C. 1988, a federal statute designed to protect federal civil rights by making citizens “private attorney generals” and authorizing the courts to require the losing party to pay attorneys fees brought pursuant to a wide varity of federal civil rights statutes, such as 42 U.S.C. 1983 (which I believe was the statutory hook in Cory’s litigation againsy the state).

    The Amendment A attack was based on the state Constitution not the federal Constitution, thus 42 U.S.C. 1988 does not apply. Comparing Cory’s cases with the Amendment A case is like comparing apples to oranges. For Noem’s bluster to succeed against the proponents of Amendment A (or anyone other entity for that matter) she would have to find a state statute that changed the “American” rule and authorized a court to order the losing party to pay the winner’s attorney fees. I am unaware of any such state statute.

    A more significant result of her whining, however, might be to convince the legislature to enact such a statute. But even if the legislature complied it wouldn’t help Noem in the Amendment A lawsuit since the “ex post facto” clause limits new statututes to prospective effect.

  8. Donald Pay 2022-01-16

    As Grudz says, there’s multiple way around this. In the 1990s we formed a non-profit corporate entity that was the formal sponsor of our initiatives. I served on the board. It’s pretty cheap to do this, and it protects the people who bring initiatives from Noem’s sort of monkeywrenching. We didn’t do this because we were afraid of lawsuits. Hell, no. Bring ’em. The more they tried to keep the public from voting, and having their voices heard and respected, the more their political credibility weakened. We did it because we knew the process would be a multi-year effort involving all sorts of first amendment activity, including lobbying, permit hearings and our own lawsuits to assure the public’s will was carried out.

  9. All Mammal 2022-01-16

    For all the personal ‘freedom‘ to choose to endanger others she boasts ‘endowing’ us piddly constituents, our governor proves what a liar she is by disrespecting our personal choice to grow and use a plant. A choice we went to the polls and have risked our freedom for years to exercise. She brags that South Dakotans have her blessing to spread illness if its their prerogative then cries around when we get together to legalize a truly medicating weed that has been tried and true since before we walked upright with nary a deadly side effect.
    How can someone so successful be so dense? As RST Member would surely respond: product of inept republicans inbreeding.

  10. 96Tears 2022-01-16

    According to Noem’s sycophants, she was the reason Amendment A passed. Had she not spent so much time in 2020 campaigning for President in other states, so they claim, she could have weighed in on the Amendment A campaign and defeated it. If Noem wants to sue someone for the expense of monkeywrenching a vote of the people with a half-baked legal challenge, she should accept blame for Amendment A passing and sue herself.

    Noem is a grifter, a liar and a deadbeat.

  11. RST Tribal Member 2022-01-16

    There is something about the crazy weed that brings about the inbreds republicans underlying lack of respect to follow the wishes of voters. It seems practically anything not proposed by the party’s inbred fools causes reactions to block or minimize the intent after voters voted.

    Supermajority governance has put democracy at peril. The state voters will survive the virus not sure what the long-term outlook is in store with the inept inbred republicans running the show and denying many the access to the crazy weed.

    As campaigning for November has begun the bungling of messaging by SD 33 is on. 45 or others must have whispered in America’s Governor’s right ear, “make them pay”. Ha, Ms. Stupid’s brain kicked out financial instead of political. Then to add inept with stupid, it was “her” attorneys she wants payment for. Just like 45 when he would say “my generals”.

    To much the same, to much alike: Inept inbred Republicans.

  12. grudznick 2022-01-16

    The demon weed drove two more to prison for graduating from toking to direct heroin sniffing. In flandreau.

  13. Mark Anderson 2022-01-16

    Republicans everywhere are bringing power to what they control. If they run the state they want all the power, up or down. Cities in Florida have had everything taken away. Sioux Falls could meet the same fate, but for now its all those pesky citizens who actually believe in Democracy. Who ever heard of that? Their elected representatives know what they need, usurpers have to be stamped out. When the blame game starts those with the power will be blamed but that will probably take awhile. Florida’s got a shortstop, and you have a rodeo AND a snow queen. Two for one or six of one and half a dozen of the other.
    Ian Fury, a nice name should make a great comic book, Nick.
    With Cory in your state you do have protection but even condoms break.

  14. Mark Anderson 2022-01-16

    Oh grudz, Willy would have been in the ground long ago without Mary Jane, she can be a demon sometimes.

  15. Sam@2 2022-01-16

    Noem caused the law suite. Why should anyone pay her legal fees? It was her decision therefore she assumes financial responsibility.

  16. Jim peterson 2022-01-16

    There were a number of laws pasted during my years in the Legislature that were challenged as unconstitutional. By the time litigation was done and if the State lost we were told it cost us around a million, sure this varied a lot. We then had to pass funding for our lawsuits. I always thought the authors responsible for unconstitutional bills should have some liability. I believe you would see far fewer social statement bills introduced, Legislators would do a much better job of vetting their bills.

  17. larry kurtz 2022-01-16

    Partner Attorney at Robins Kaplan LLP, Brendan Johnson, former US Attorney for the District of South Dakota and son of retired Democratic Senator Tim Johnson, helped the South Dakota chapter of the American Civil Liberties Union win the Constitution and Libertarian Parties’ lawsuit against Republican former Secretary of State Shantel Krebs.

    The state paid.

  18. Cory Allen Heidelberger Post author | 2022-01-16

    Bearcreekbat, thank you! You explain a key difference between Noem’s lawsuit and the lawsuits I’ve waged to overturn unconstitutional South Dakota laws. In both of my cases (which decisions include reference the federal code BCB cites), I sought to protect basic First Amendment rights. South Dakota violated the civil rights of its citizens; federal law thus prescribes that the state pay the legal fees of the citizens who make the effort to rectify those violations in court. That seems a reasonable way to ensure that the state does not violate civil rights willy-nilly and hope that most of the folks whose rights are infringed are too poor and too busy to lawyer up and make a federal case of it.

    As Bearcreekbat astutely notes, Noem’s lawsuit against Amendment A rested entirely on violations of the South Dakota Constitution. She did not sue to protect anyone’s civil rights; she sued to enforce our state constitution’s very recent restriction of free political expression, the prohibition on proposing amendments that cover more than a single subject. So under 42 USC 1988, Noem can make no legitimate claim for attorney’s fees from the defendants.

    Now, BCB, are there any state statutes or case law that could justify Noem’s claim?

  19. larry kurtz 2022-01-16

    So, expect Jason Ravnsborg to serve the defendants with an order to pay, right?

  20. Arlo Blundt 2022-01-16

    Another Mrs. Noem attack against the basic constitutional rights of South Dakota citizens. I find it hard to believe that her position would stand up in court though its hard to predict the South Dakota judiciary. She continues to use the marijuana law reform as an excuse to strip basic rights from all who disagree with her ideology. She continues to ignore Rule of Law in favor of Rule of Mob.

  21. Cory Allen Heidelberger Post author | 2022-01-16

    BCB got me searching South Dakota Codified Law for “attorney’s fees”. Prevailing parties can win attorney’s fees in all sorts of cases—asbestos mitigation, oil spills, contract disputes, incitement to riot—but each situation seems to depend on an action doing clear harm to the prevailing party. In what way did Amendment A’s pertaining to multiple subjects harm the original plaintiffs, Sheriff Thom and Trooper Miller? In what way did that multi-subjectivity harm their commander and ratifier of the lawsuit, Governor Noem?

    Furthermore, recall that Governor Noem claimed that the South Dakota Constitution, Article 4 Section 3, authorized her to bring this lawsuit to protect the Constitution. Since when do we give the Governor rewards for carrying out her Constitutional duties? Does she also get to charge the Legislature for attending her State of the State Address? Does she get to charge retiring legislators for the time and effort she expends reviewing and appointing their replacements?

  22. Cory Allen Heidelberger Post author | 2022-01-16

    I don’t know if Ravnsborg serves an order on the sponsors or files a brief with the court. I would think that, absent a judge’s order, sending a bill straight to the sponsors is ridiculous and unenforceable.

  23. larry kurtz 2022-01-16

    So, the Minnehaha Sheriff serves the defendants after a judge’s decision?

  24. larry kurtz 2022-01-16

    Mrs. Noem only has to find a sympathetic judge to rule ?

  25. larry kurtz 2022-01-16

    It’s as if the defendants knew the outcome while Amendment A was being drafted.

  26. larry kurtz 2022-01-16

    Anyone who believes the most brilliant legal minds in South Dakota would draft a ballot initiative that could lose in court is delusional.

  27. jerry 2022-01-16

    Since when is it only the Democrats and Independents who have a say in the saving of democracy? Is owning the libs really owning anyone, but instead, losing ownership of it all?

  28. bearcreekbat 2022-01-17

    Like you Cory, I have not yet found a statute or court decision that would authorize a court to order shifting of attorneys fees in the Amendment A case. Had the court found Noem’s factual allegations or legal position attacking Amendment A to be malicious or frivolous, or that the defense of Amendment A was somehow malicious or frivolous, then I believe the court could have ordered the frivioulous side to pay the other side’s attorneys fees. See SDCL 15-17-51.

    The South Dakota Supreme Court has interpreted this statute:

    A frivolous action exists when “the proponent can present no rational argument based on the evidence or law in support of the claim. . . .” To fall to the level of frivolousness there must be such a deficiency in fact or law that no reasonable person could expect a favorable judicial ruling. Simply because a claim or defense is adjudged to be without merit does not mean that it is frivolous. Instead, frivolousness “connotes an improper motive or a legal position so wholly without merit as to be ridiculous.”

    Stratmeyer v. Engberg 2002 SD 91, citingRidley v. Lawrence County Comm’n, 2000 SD 143, ¶14, 619 NW2d 254, 259

  29. Donald Pay 2022-01-17

    If you go through the LRC, they should be able to steer you away from constitutionally questionable language. When we developed our initiatives, we cleared them through attorneys first then did them in bill form through the LRC. The LRC is, of course, not perfect; not for legislative bills and not for initiatives. Neither is the AG’s office. No one is going to know until the US Supreme Court or the SD Supreme Court rules, So, if you clear the LRC, you have done the maximum you can to address constitutional issues. Legislators still introduce clearly unconstitutional bills, and some of them pass. Should they be on the hook personally? I don’t think so. I would surmise that might be a violation of the separation of powers. Since the initiative process is contained in the Legislative article as a Legislative Branch process, this might itself be unconstitutional.

  30. Eve Fisher 2022-01-17

    Personally, I think that Governors who sue the citizens of a state to repeal an Amendment, passed by the majority of said citizens of a state, should have to pay all the legal fees.

  31. Richard Schriever 2022-01-18

    Tyrants, authoritarians, and their psychophants do not recognize either the authority or the responsibility of “the body politic”. Their frame of understanding is focused entirely on individual relativism. Big daddy, little daughter. Mommie’s favorite. Boss and underling. These are the bounds of their understanding of human relations.

  32. Ryan 2022-01-18

    Brendan Johnson just filed a lawsuit on behalf of a couple voters in regards to the upcoming Amendment C. Amendment C includes more than a single subject, which you may remember as a totally big deal to all the republicans in pierre, and wherever noem is these days.

    I can’t wait to see amendment c crushed under the precedent set by overturning Amendment A. Now that I think about it… the single subject rule might just become the favorite tool for those that like to rouse some rabble in the legislature…

    and when that happens… who pays what now…?

  33. John Dale 2022-01-18

    Once again .. this is not a good position for Noem, sadly.

    The instruments of justice (civil in this context, lawyers, legal education in k-12, and even tech/vocational opportunities to educate citizens about the laws they are supposed to follow) should be made more accessible, not less accessible.

  34. larry kurtz 2022-01-18

    Mr. Dale might be on to something. A better position for Mrs. Noem is missionary to one of the moons of Uranus.

  35. grudznick 2022-01-18

    Mr. Dale’s fellows in the legislatures are getting schooled this evening by real scientists and math. It appears conclusive that Mr. Ravnsborg was fully on the shoulder of the road. However they have not ruled out aliens coming down and moving paint chips.

    #4Science

  36. Ryan 2022-01-18

    grudz, anybody talking at breakfast about new attention on the crash location details leading to possible charges? i think the late great Alex Trebek would agree even the tough rules of double jeopardy wouldn’t prevent a manslaughter rap.

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