SDGOP spin blogger Pat Powers reports on the ridiculous lawsuit of the month—not because he’s a good journalist, but because the lawsuit comes from a sore loser who dared challenge one of his party leaders. But we’ll take any story from the SDGOP spin blog that makes right-wing Republicans look like complete legal doofi.
Watertown City Council member Colin Paulsen ran against Senate President Pro-Tempore Lee Schoenbeck in the Republican primary for District 5 Senate. Paulsen failed to convince Republican voters that he’d be a better Senator than Schoenbeck, and Schoenbeck won the primary 59% to 41%.
Primary’s done; we all go to the lake, right? No, Paulsen goes to court, whining that he lost because Schoenbeck put up bigger signs and the city didn’t stop him. Powers does a poor job of explaining the details of the lawsuit—which is the predictable result of Powers’s focus on lazy snark instead of rigorous reporting and analysis (remember, Pat emphasizes War, not College)—but Powers at least helpfully posts Paulsen’s affidavit so we can see for ourselves how wrong Paulsen is.
14civ22-000182_affidavit of… by Pat Powers
Paulsen says he spent time and money making campaign signs compliant with city ordinances that restrict campaign signs to six square feet in area, three feet in height, and one foot back from any right-of-way. Paulsen says he and his volunteers spotted fifteen Schoenbeck signs that violated those rules. He says “multiple supporters and volunteers” alerted the city to these violations, but the city, paralyzed with fear of a lawsuit, did nothing to protect Paulsen and the public from this egregious offense:
It is my understanding that multiple supporters and volunteers contacted the City of Watertown reporting these violations between April 2022 to May 2022. The City Manager, Mayor, and City Attorney were all contacted.
The City of Watertown indicated that they would investigate the situation but did not have a code enforcement officer and that enforcement was not likely. I was also informed that Lee Schoenbeck threatened to file a lawsuit against the City of Watertown if they in fact enforced said Ordinance. This lack of enforcement had a material impact on my campaign measures, and possible results from the election.
Frustrated by the way the City of Watertown was handling the situation; [sic] I had a planned meeting with the watertown City Manager for May 10, 2022. During this meeting, I requested that the City of Watertown enforce the City Ordinance to maintain structure, fairness, and equality during a fundamental and important election. I was informed at this meeting again that the City of Watertown did not have a Code Enforcement Officer and there was a fear of a lawsuit being filed [Colin Paulsen, Affidavit of Plaintiff in Support of Motion, Paulsen v. City of Watertown, Case #14CIV22-000182].
While the claim that Schoenbeck threatened to sue the city is hearsay, it sounds in character for my favorite Lake Kampeska litigator, and I say “Hear, hear!” to any party willing to challenge a local government’s unconstitutional restrictions on core political speech.
Paulsen finds it curious that Schoenbeck could have cowed the city with a threat to sue over its sign ordinance, because the city just enjoyed a court victory upholding its sign ordinances. Former Watertown City Councilman Josh Weyh went to court to challenge the city for fining him for non-compliant signs at his pizza place last summer. Just last January, Magistrate Judge Patrick McCann upheld the fines. But that court case was a standard hearing in which the defendant pled not guilty and tried to fight conviction, not the sort of juicy constitutional case we can hope Lee Schoenbeck would have brought against the ordinance itself.
Paulsen appears to be arguing that the city enforced its ordinance against a pizza shop owner but not against a political candidate. That argument could be lots of fun—City Council Ignores Law to Protect Favored Republican Senator from Councilman’s Political Challenge? What a headline! Watertown Mayor Ried Holien is a former Legislative colleague of Senator Schoenbeck and the National Committeeman for the SDGOP that Schoenbeck’s mainstream faction controls, while Paulsen is part of the Convention-of-States right-wing faction that Schoenbeck is trying to purge from the party. Paulsen could be unearthing intra-party skullduggery worth all sorts of media attention!
But Paulsen’s lawsuit is too wimpy to make that happen. Paulsen doesn’t directly allege favoritism, and he doesn’t provide any non-hearsay evidence thereof.
Worse for his cause, Paulsen shows no direct evidence that the city’s action or inaction caused him to lose any votes.
Paulsen cites the abstract of a 1992 study from the Association for Consumer Research to support his general claim that “larger ads are given greater attention and thus better recalled than smaller ads.” However, that 1992 research (a) focuses on print ads in newspapers, (b) makes no mention of political ads on sidewalks and roadways, (c) does not measure voter behavior in response to political ads, and (d) does not say, “Lee Schoenbeck’s gigantonormous signs made 270 Paulson voters change their minds and vote for Schoenbeck.”
The only specific local evidence Paulsen hints at is his assertion that someone on Lee Schoenbeck’s Facebook page said Schoenbeck’s signs “were more prominent and asked if I had any signs around town.” Paulsen doesn’t produce the actual Facebook comment, because, he says, Schoenbeck has blocked him from the account. And even if Paulsen could produce that evidence, a comment from a Schoenbeck supporter on Schoenbeck’s social media does not constitute evidence that Schoenbeck’s big signs and the city’s failure to fine Schoenbeck for those big signs cost Paulsen a single vote.
Paulsen tells the court the City of Watertown should give him $31,741.60 to make up for the Legislative salary he lost, $5,000 to pay for his campaign signs, and another $10,000 in punitive damages. But Paulsen’s affidavit presents no evidence that the city’s failure to enforce its sign ordinances cost him the election and that Legislative salary. Voters decide elections, not signs and not ordinances.
Paulsen asserts no legal claim for which the city can provide relief. If Paulsen is really entitled to a Legislative salary, he’s entitled to the seat, and he should take his case to the Supreme Court to throw out the election and name him Senator for District 5. But that, of course, is absurd. Paulsen found himself out-advertised by his opponent. If he really thought those big signs were making a difference, he had ample opportunity, as early as the first complaints in April, to respond by putting up more and bigger signs of his own. The city apparently opened the door for bigger signs when it told Paulsen and his alleged multiple complainers that “enforcement was not likely.” The moment the city said it wouldn’t crack down on bigger signs, Paulsen could have called Liz May, Scott Odenbach, Kevin Jensen, and the Convention of States and said, “Send me another $6,000! I gotta go to Menards and buy some plywood, paint, posts!” Paulsen could have fought fire with fire, but he chose not to. He denied himself his own relief and lost his own election.
Paulsen’s affidavit is so evidentially and legally deficient that we probably won’t even get to the question of whether Watertown engaged in selective enforcement of its sign ordinance for a powerful lawyer, Legislator, and pal of the Mayor, let alone whether the ordinance is constitutional. And since Pauslen is suing the city, not the Senator who beat him, we won’t have the pleasure of seeing Schoenbeck go to court and whack this legal doodle.
But Paulsen’s lawsuit helps show why the fringe radicals of the South Dakota Republican Party can’t take over the Legislature or state offices: they make stupid whiny arguments without evidence instead of doing the hard work necessary to win elections.
Playing by the rules…I remember way back when when my friend Don Mclaughlin and I were playing tennis, the other two guys cheated. I told Don don’t worry we will win. Because cheaters never win right? We lost of course and my experience with DC comics went down the drain.
I’d have done the same thing Paulsen alleges Schoenbeck did: if the city threatened to fine me for putting up political signs, I’d have dared them to discuss their authority to do so in court. Of course, I’m not a practicing lawyer like Lee, so my threat wouldn’t have quite as sharp of teeth as Lee’s.
I notice Paulsen is also asking for $5,000 to compensate him for the signs he bought. That’s radically stupid and legally untenable. Paulsen would have spent $5,000 on signs whether or not the city enforced its ordinance or even had an ordinance.
Plus, there’s no indication that he personally spent $5,000 on signs. His pre-primary report indicates his campaign committee spent only $1,991.89 on advertising. It also shows no personal funds donated by Paulsen to his campaign. The pre-primary report should show all spending up to May 18, which is more than a week after his meeting with city officials to discuss the sign ordinance. And even if he could convince the court that (a) he really did spend $5,000 on signs and (b) the city somehow spoiled his advertising and should compensate him for that sunk cost, is Paulsen promising to remit that money to the donors who funded his signs?
I so enjoyed your article that I’ll share a couple of insights. He’s complaining about 10 4×4 plywood signs my wife painted for my 1994 election. They’re retro these days. None were in any right of way.
You nailed the First Amendment issue, but Paulson mislead on date. Two years ago I told the City they couldn’t allow larger commercial signs, and then restrict political speech (over exact same signs). They agreed and haven’t enforced the political sign ordinance for two years.
I will not be happy until (in a Joseph Heller twist) the city of Watertown hires Schoenbeck to defend them in this matter. THEN we will have a story!
It’s not the size of the dog in the fight, it’s the size of the might on the right. — unknown
$20 says Donald Trump’s hands are bigger than Lee Schoenbeck’s.
And on that point, Lee slam-dunks this case. If the city allows commercial speech on signs of a certain size on private property but forbids political speech on signs of the same size on private property, the city is enforcing a content-based restriction. Government restrictions on speech must be content-neutral. Hooray for the First Amendment!
Perhaps Paulsen should use his power as a City Councilman to repeal the unenforceable sign restrictions. Perhaps Paulsen should sue himself for not making city ordinances clearer and more respectful of the First Amendment.
Or perhaps Paulsen should have just asked back in April why the city had agreed two years ago that its sign restrictions were not unenforceable, then gotten out the plywood and paint the way Mrs. Schoenbeck did and made his own big frickin’ signs!
O, there could be some conflict of interest restriction on the city engaging Schoenbeck’s lawyerly services on this case. Would you settle for seeing City Attorney Mark Roby call Schoenbeck to the stand as star witness for the defense?
It occurs to me that, as a conservative alleging that Schoenbeck is a raging liberal, Paulsen would make more noise in support of the First Amendment, not for big-government restrictions on free speech. But maybe Paulsen doesn’t really support the First Amendment… which is all the more reason we should be nervous about his being funded by a group that wants to call a Constitutional Convention.
Lee seems to be recovering from his recent ass-kicking. That’s too bad.
Note to Paulsen: Wah!
Paulsen Appears not to be recovering nearly as well from his ass-kicking. Waaaah, indeed!
If politics continues to progresses at this same rate, law school classes will be a requisite for HS or maybe even elementary graduation,
There must be a reason there are more lawyers per capita in US than in any other developed nation. This may also explain why our society is becoming so divided.
Watertown has a long history of selective enforcement. It appears the double standard is still in place in Watertown