I spent yesterday at the federal courthouse here in downtown Sioux Falls. I testified before United States District Judge Roberto Lange as an expert witness on petition circulation for Dakotans for Health, which is suing the Minnehaha County Commission and its right-wing election-denying auditor Leah Anderson over the new “public use” policy the commission enacted on May 2 to ban petition circulation and other First Amendment activities on most of the public space around the Minnehaha County Administration Building and Courthouse just off North Minnesota Avenue. I also observed all other testimony, closing arguments, and the judge’s commentary in the hearing from 9 a.m. until adjournment at 4 p.m.
Judge Lange’s temporary restraining order on Minnehaha County’s speech restrictions lapsed on Thursday at 4:38 p.m. The county was thus able to enforce its new policy, restricting petition circulators to a small rectangle in the parking lot 53.3 feet away from the doors citizens most frequently use on the west side of the Admin building, all day Friday. At the end of yesterday’s hearing, Judge Lange said it did not make much sense to extend that temporary restraining order with just 50 minutes left before county offices closed on the Friday before the big Memorial Day weekend. He also said temporary restraining orders (TROs) are usually issued ex parte, before parties have had a chance to submit their evidence, so it is “awkward” to grant a TRO the one allowed extension after an evidentiary hearing. Having heard the parties Friday, it is more logical to weigh the merits of the evidence as presented and decide whether to grant the preliminary injunction plaintiffs Dakotans for Health seek. Judge Lange said he will mull the case over the weekend and issue a decision next week. He said he may extend the temporary restraining order early next week if he needs more time to come to a decision on the preliminary injunction.
I have 15 legal-pad pages of notes from the day-long hearing (and that’s without any notes from the 30 minutes or so that I spent on the stand, because it’s hard to take notes while fulfilling one’s oath to tell the truth, the whole truth, and nothing but the truth, so help me Gaia), so, like Judge Lange, I will need some time to process everything said in court Friday into a reasonable blog report. That’s what long weekends are for, right?
The county employees who testified in defense of the county’s new restrictions on petition-signing that circulators and signers have traditionally conducted outside the Admin building or decades said the policy was a response to a seeming increase in the intensity of First Amendment activity taking place that has taken place in the last six months. One witness, state’s attorney’s office manager Kim Colwill, mentioned one weird incident with a pork-plant-ban petitioner which had to take place some time in spring or early summer last year, before that municipal petition was submitted and certified in early July. But all other incidents of petitioners and petition blockers behaving impolitely, discourteously, or unprofessionally or obstructing folks ingress and egress from the Admin building—behavior which would violate both the old Petition Gatherers policy that the county had in place for years and the new far more restrictive policy on First Amendment activity corralling speakers into two small, remote rectangles on the campus—were said to have occurred during the last six months, during which time the only petition activity was signature collection for Dakotans for Health’s initiative petition to place on the November 2024 ballot a vote on writing Roe v. Wade standards for abortion rights into the South Dakota Constitution.
Judge Lange himself noted that impolite behavior by petition circulators is “counterproductive” and “inexplicable” and wondered if the perceived recent increase in violations of the county’s policy on petition gatherers that motivated the implementation of a new, more restrictive policy was the result of “a bad apple or two”. Indeed, the testimony presented seemed to identify only two circulators, David Zokaites and Donald Schryver, and one petition blocker, former legislator Manny Steele, as troublemakers. (The previous policy perhaps unconstitutionally only applied to petition gatherers and not petition opponents or other speakers. Manny Steele may thus have been free to behave discourteously in front of the Admin building doors to disrupt petition gathering, but one would think truly bad behavior by any speaker, pro con or neutral on any given petition, would result in a firm request from the Minnehaha County Sheriff’s Department just across the parking lot to leave the premises or face disorderly conduct charges. The person Steele was harassing, circulator Schryver, did file for a restraining order, and Steele did agree to stay out of Schryver’s face, allegedly saying that someone else would just replace him as a petition blocker.)
One might also wonder if the perceived change in free speech activity and the passage of a new policy during a period when the only petition on the sidewalk was a petition relating to abortion was more than coincidence. Abortion rouses passions on both sides. This abortion petition drive is the first petition drive I can recall that has prompted South Dakota opponents to organize blockers to stand next to petitioners and prevent them from collecting signatures. (Out-of-state payday lenders used their corporate money to hire petition blockers and mount a decoy petition drive in 2015 to try stifling the grassroots petition drive for a 36% interest rate cap.) County employees themselves may have deeply held beliefs that cause them to be deeply troubled by seeing and hearing petitioners who favor allowing South Dakotans to vote to restore Roe v. Wade rights.
The political beliefs of witnesses did not come up as a significant topic in Friday’s evidentiary hearing. Defense witness Melinda Storley, who has worked in the Admin Building as Minnehaha County Commission assistant for seven years, testified that the issues that problematic circulators were promoting were “irrelevant” and that she never thought of the content of their speech in considering complaints.
However, in a surveillance report Storley wrote concerning incidents involving a circulator and an opponent outside the Admin Building on February 28 and March 1—a report submitted by the defense as an exhibit—Storley characterized the circulator as “pro-abortion”.
Auditor Leah Anderson, a known political conservative, was more circumspect in her language, putting nothing on the court record that suggested she was considering the content of the petition circulation that she is restricting or signaling her own political position on the issues to which the active petitions relate.
But Leah Anderson has been a staunch opponent of abortion rights for years. In 2007, she signed on as one of 13 sponsors of Initiated Measure 11, the abortion ban promoted by longtime Sioux Falls anti-abortion activist Leslee Unruh. Anderson served as secretary/treasurer for Unruh’s anti-abortion Alpha Center from 2013 through 2015 and on the Alpha Center’s board of directors in 2016 and 2017. In 2019, Anderson spoke at a “40 Days of Life” event at a Sioux Falls church and called for an end to abortion:
“It’s a time of prayer, to pray for an end to abortion,” speaker Leah Anderson. “I support it because I have been through abortion, so I know how it affects women and families in general” [staff, “Pro-Life Group Gathers in Sioux Falls for ’40 Days of Life’,” KSFY, 2019.03.04].
And just last year, as Dakotans for Health started its Roe v. Wade petition drive, Anderson donated $200 from her auditor campaign committee to Life Defense Fund, the committee formed by Unruh and anti-abortion activist Representative Jon Hansen (R-25/Dell Rapids) to oppose the Roe v. Wade petition:
Leah Anderson gave money to help Hansen and Unruh organize petition blockers like Manny Steele who have been standing next to Roe v. Wade petitioners outside the Minnehaha County Admin Building, where Anderson now works and can monitor petition activity every day from a surveillance monitor in her office.
The political beliefs and intent of Auditor Anderson and other county officials will not affect the judicial evaluation of whether the county’s new restrictions on petitioning and other First Amendment activity outside the Admin Building and courthouse violate the Constitutional rights of petition circulators, signers, and opponents. But Melinda Storley’s word choice in an official report and Leah Anderson’s long history of activism to ban abortion, including her financial support of the active campaign to block the current Roe v. Wade petition, suggest they would not mind if the new speech restrictions for which they testified in court yesterday effectively shut down pro-choice petitioning at the Admin Building, traditionally the best regular location for gathering petition signatures in all of South Dakota.