The United States Constitution prohibits ex post facto laws: we can’t pass laws today that punish people for actions they performed legally yesterday.
The City of Sioux Falls appears to be applying a time-machine version of that principle to fight the lawsuit from Smart Growth Sioux Falls has filed to halt construction of Wholestone Farms’ ad hoc butcher shop on the site of the future meat factory that Sioux Falls voters might ban in November. In a response filed Friday, the city says laws can’t work ex ante facto:
In another portion, the filing echoes Wholestone board chair Luke Minion, who has repeatedly pushed back on opposition to the project by stating that the company is following the city’s existing laws.
“Because Smart Growth’s proposed ordinance banning all new slaughterhouses is not operative or legally enforceable, no Sioux Falls public official must follow it,” the filing reads. “Rather, Sioux Falls officials — including those officials in the Sioux Falls Planning and Building Services Department — are legally obligated to apply and enforce the Sioux Falls Ordinances as they currently exist” [Trevor J. Mitchell, “Sioux Falls Files Motion to Dismiss Civil Complaint Against Mayor Paul TenHaken, Wholestone,” Sioux Falls Argus Leader, 2022.09.30].
SGSF is promoting a ballot measure to prevent construction of any new slaughterhouses in Sioux Falls, including Wholestone’s. That law has not been approved by the voters and thus is not in effect. Sioux Falls city government is not obliged to follow a law that has not yet been approved or taken effect. Quite the contrary: Sioux Falls city government is obliged to follow the law as it is. Current law says Wholestone can build a butcher shop on land zoned for butcher shops. And if Wholestone completes that task and starts chopping and selling piggies at that site before November 8, then the law Sioux Falls voters might pass, as SGSF wrote it, with an exception for expansion of existing slaughterhouses, will allow Wholestone to expand its little butcher shop into as big of an industrial meat grinder as it wishes.
Such are the hard facts of the law, both ante and post election. We can’t punish Wholestone Farms or the City of Sioux Falls for following the law as it is written, and we definitely can’t force anyone to follow a law before it is written.