Remember how David Owen and Jim Holbeck sued the Secretary of State to stop the placement of illegally mutli-subjectual Amendment C on the June ballot, but the Attorney General then illegally ignored attorney Brendan Johnson’s exactly correct service of the summons for that suit?
Never mind, said the Second Circuit Court on Tuesday. The Attorney General’s Office is free to ignore the law and make up rules to delay lawsuits against the state for as long as it wants:
“Not once have I ever heard the state make the argument that it can evade service,” Johnson told Judge Douglas Hoffman.
Clifton Katz, an assistant attorney general, admitted that the office typically accepts service without being served personally. But in this case, the office was within its legal rights to demand personal service. Katz noted that the certified letter had been addressed to the attorney general, but the office address was to the secretary of state. Although somebody at the state had signed the certified mail, Katz said he didn’t know who that was because the signature will illegible and that it could have been signed by a mailroom employee.
It was left to Hoffman to wade into a maze of state law regarding serving parties in civil disputes. Ultimately, Hoffman ruled that the attorney general was not required to accept service via certified mail.
“We’re in this picadillo because the statute is very poorly crafted, unfortunately,” he said [Jonathan Ellis, “Voters Will See Amendment C in the June Election as Court Challenge Fails,” Sioux Falls Argus Leader, 2022.04.19].
But whatever cookbook Hoffman is reading, he’s not reading South Dakota lawbooks, which other courts and the Attorney General’s office itself have previously had no trouble reading:
The summons shall be served by delivering a copy thereof. Service in the following manner shall constitute personal service:
…(6) If the action is against a state officer, employee or agent arising out of his office, employment or agency, a copy of the summons and complaint shall be mailed, certified mail, postage prepaid to the attorney general together with an admission of service and a return envelope, postage prepaid, addressed to the sender. The executed admission of service shall be filed by the sender in accordance with § 15-6-5(d)… [relevant text of SDCL 15-6-4(d), effective 2005.02.25].
That’s no maze of law; that’s a clear statement that, if you are suing the state, you send the summons to the Attorney General’s office by certified mail. Plaintiffs Owen and Holbeck, through their attorney Johnson, did exactly that. The Attorney General’s office got the letter; Katz saw it and the allegedly illegible signature. The plaintiffs’ exact compliance with the law does not get overriden by the Attorney General’s own inability administrative ineptitude or political recalcitrance.
Johnson tells the press the lawsuit will continue, and [reporter’s words] “and that will start with personally serving Secretary of State Steve Barnett.” But as we’ve seen in past cases, if Johnson walks the summons into SOS Barnett’s office and personally hands it to the Secretary, the state will be able to get the case thrown out, because the law demands service by certified mail to the Attorney General.
Why is it so hard for this Attorney General and his office to read and follow the law?
Oh well. In the meantime, early voting starts today. Go to the courthouse, ask for your special election ballot, and vote NO on Amendment C!