Lawyers Get Another $33K from SD Taxpayers Because Noem Can’t Read First Amendment

Governor Kristi Noem just cost South Dakota taxpayers another $32,741.21 by tromping on the First Amendment. On Monday, federal Judge Roberto Lange ordered the Noem Administration to fork over that sum to the lawyers who had to fight Noem in court to get permission for anti-vaccine immigrants to protest at the State Capitol against sensible public health measures.

Yeah, I’m having trouble picking a side to root for here, too. But the First Amendment applies even to knuckleheads, and I have to cheer for the First Amendment. More importantly, I have to expect elected officials to understand and protect the First Amendment. Noem fails that test, so boo on Noem. (Primary challenger Steven Haugaard, you’re working up a press release on Noem’s costly failure to uphold the First Amendment, right?)

The Blue State Refugees and their out-of-state lawyers who still haven’t heeded Governor Noem’s call for them to move to South Dakota for the Freedom™ asked for almost twice what they got, but Judge Lange said $63,835.79 was a bit much, especially given that out-of-state lawyer Alan Gura wanted to charge $640 an hour, more than twice as much as the $300/hour rate claimed by Marty Jackley and Richard Williams, two of the Blue State Refugees’ five in-state lawyers, for arguing a pretty easy case:

Here, Plaintiffs have made no showing that local counsel was unwilling and unable to litigate this case. The case involved a straightforward application of long-standing First Amendment precedent… and Plaintiffs staffed the case with five local, capable attorneys. Therefore, Gura may be awarded attorney’s fees at a reduced rate of $300/hour, which is commensurate to the local market rate for an attorney of similar experience [Judge Robertos Lange, Opinion and Order Granting Motion for Attorneys’ Fees in Part,  Blue State Refugees, Luke Robertson, and Chad Dollick v. Kristi Noem, Scott Bollinger, and Leah Svendsen, U.S. District Court, District of South Dakota, 2022.04.04; in Austin Goss, “Noem Administration Ordered to Pay Attorney Fees After First Amendment Violation,” KSFY, 2022.04.05].

So thanks to South Dakota’s endemic low wages, even for professionals, the state suffers a lower penalty in court than other states would have for violating Constitutional rights. Hmmm….

Gura still made out well, getting $16,560 for 55.2 hours of work. (Dang: I really should have gone into lawyering.) Gura put in more hours than any of the five South Dakota lawyers on this case:

Judge Lange knocked another 30% off the Gunderson Palmer lawyers’ fees. His Honor agreed with the state that “the case was overstaffed for the issues presented leading to unnecessary duplication of legal work.” The case was straightforward, the state granted the permit within 36 hours of receiving the complaint—the plaintiffs just didn’t need that much lawyering.

Judge Lange also nixed 14.2 hours that the Plaintiffs wanted to bill the state for whipping up a motion to amend the November 5 order they won for their protest. The plaintiffs said their lawyers needed to prepare this motion even after they got their permit demonstrated  at the Capitol November 8–9 because they needed a backup plan in case negotiations with the state fell through and the state failed to formally amend the policy the plaintiffs had successfully challenged, but Judge Lange ruled that backup plan was unnecessary, since the plaintiffs themselves admitted they were “near a resolution” with the state when they prepared and filed that motion.

Ultimately, Lange awarded $16,560 to Gura and $14,660.10 to the Rapid City attorneys. GNPA also got $952.91 in state sales tax and $568.20 for costs. The total bill to Noem—i.e., the taxpayers footing the bill for her frequent First-Amendment fouls—is $32,741.21.

Kristi, I know you and your radical followers like to skip ahead to the Second Amendment when you skim the Constitution. But you may want to spend a little more time on the First Amendment; your inability to read and defend free speech keeps costing taxpayers a lot of money.

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While I appreciate a good First Amendment fight, and while the state deserved a judicial whacking for its absurd refusal to let the People speak at the People’s Capitol, the Blue State Refugees could have avoided all this costly lawyering if they had just scouted the protest area first. Judge Lange provides this footnote in his order, noting that the protestors found a better venue for their protest out on the public sidewalk, where no one needs a permit to engage in First Amendment activities:

Defendants allege that although Plaintiffs received a permit to demonstrate on two designated areas of Capitol grounds, Plaintiffs demonstrated on a public sidewalk instead…. Plaintiffs concede they demonstrated on the sidewalk after realizing they had favorable exposure to street traffic there…. But Plaintiff Luke Robertson stated that he and about a dozen others also demonstrated on the designated areas of the Capitol grounds, and demonstrators moved between the sidewalk and the designated areas of Capitol grounds during the demonstration [Lange, 2022.04.04].

Now if the protestors wanted to make themselves heard to legislators assembled at the Capitol for their Special Sessions on redistricting and impeachment, then sure, there may be some Capitol Grounds locations away from the public right-of-way where they’d want to wave their signs and tri-corner hats. But if they’re looking for attention and support from the general public, then the sidewalks adjacent to the streets are far better places for protests.

But the question remains: why does any citizen need any permit to say anything on the sidewalk or anywhere else around the Capitol?