Haugaard’s Really Weak Lawyering Won’t Save Frye-Mueller from Boobgate

Last Thursday, Senator Tom Pischke warned his colleagues that suspending Julie Frye-Mueller over Boobgate (did you know, Tom?) would lead to lawsuits. Thinking a lawsuit from Frye-Mueller or her disenfranchised District 30 constituents might have legs, I banged out a quick brief on the relevant sections of the South Dakota Constitution that could persuade a judge that the Constitution does not give the Legislature authority to suspend members without due process.

But does Julie Frye-Mueller listen to me? No. Instead, she hires former fellow mugwump legislator and actual lawyer Steven Haugaard to cook up a lawsuit against Senate President Pro Tempore Lee Schoenbeck that ignores South Dakota Constitutional principles and pretends that Schoenbeck is violating Frye-Mueller’s First Amendment rights.

Let’s be clear about this from the top: a legislator does not have a First Amendment right to go into a Legislative Research Council employee’s office and, with the legislator’s husband leering over her shoulder, describe her own sexual activity and encourage to the employee and the employee’s husband to engage in similar activities. If we had the right to say such sexy stuff at work to coworkers, there would be no such thing as sexual harassment lawsuits. (Maybe that’s what Haugaard and Frye-Mueller wish, but that won’t help their case.)

Frye-Mueller’s complaint, filed this afternoon in federal court in Pierre and helpfully posted by Jazzmine Jackson of KELO-TV, does not explain why the things Frye-Mueller said in the unnamed LRC employee’s office are protected by the First Amendment. The complaint doesn’t even tell the court what Frye-Mueller said. The complaint simply asserts, in Paragraph 34, that “In engaging in conversation with a Legislative Research Council staff member about both Legislative activity and personal conversation, Plaintiff was engaged in activity protected by the First Amendment, namely political speech and free speech.”

The complaint errs here in asserting that the Senate’s punishment relates to the actual Legislative discussion that took place before Frye-Mueller got grossly, rudely, inappropriately personal. The LRC employee reports that she and Frye-Mueller did indeed discuss a bill draft, but at no point has anyone indicated that the Senate took action because of the political content of that conversation. The Senate Majority Leader’s statement that Frye-Mueller engaged in “unprofessional behavior” that included “harassment related to private maternal matters, including childhood vaccines and breastfeeding.” Unless Haugaard can get Schoenbeck or Crabtree to crack and admit they are busting Frye-Mueller’s chops over some as-yet-unrevealed bill Frye-Mueller was working on, there’s no political speech for the judge to weigh in this lawsuit.

The complaint further errs in asserting that the personal conversation was “free speech”. As I suggest above, not every word out of one’s mouth si “free speech”. If free speech protected every personal conversation, then back in 2007, when Senator Dan Sutton was fighting the Senate’s effort to censure him for sexual misconduct, he could have said that whispering to a page, Hey, handsome, let’s snuggle in my motel room! is free speech, and the Senate would have had to say, Yeah, good point, we’re done, nothing to see or censure here, carry on.

Frye-Mueller has no First Amendment claim because the boorish comments she made, the comments on which the Senate Select Committee on Discipline and Expulsion is likely to focus, are not protected by the First Amendment.

Frye-Mueller submits an affidavit that also completely misses the mark.

1. She whines to the federal court that the Senate suspended her even though the Senate President ruled the motion to suspend out of order. She ignores that the Senate acted within its basic parliamentary rights to challenge and overturn the ruling of the chair.
2. She complains that the suspension violated the approved Rules of the Senate. She ignores that those rules can be violated any time by a two-thirds vote of the Senate to suspend the rules.
3. She complains that she was given “no opportunity to fully and fairly exercise any Due Process rights….” She ignores her own and her lawyer’s own failure to demonstrate any constitutional or statutory basis for a legislator to claim due process rights in defending the privileges of serving in the Senate.

Frye-Mueller and Haugaard could have wrapped their argument around provisions of the South Dakota Constitution and taken that claim to state court. Instead they have ignored those viable arguments and waved an airy-fairy First Amendment wand at the federal court. Maybe they think that the state Judiciary’s well-precedented deference to the Legislature’s management of its internal affairs (Schoenbeck is ready to cite Gray v. Sutton 2007, and I’m ready to argue that case and Article 3 Sections 3 & 9 right back at him). But it seems an even longer shot that these right-wing Republicans, who usually view federal overreach as one of the great evils of our time, can argue straight-faced that a federal judge ought to intrude on a state legislature’s rules of conduct and discipline on an insubstantial assertion of First Amendment rights.

Right-wing Republicans like Frye-Mueller and Haugaard have proven they aren’t very good at legislation; the complaint Frye-Mueller and Haugaard have put together shows they also stink at lawyering.