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Judge Lange Renews Temporary Restraining Order, Will Visit Admin Building to See If New Minnehaha County Petition Restrictions Can Stand

After hearing evidence and arguments Friday in Dakotans for Health’s lawsuit against Minnehaha County’s new restrictions on petitioning and other First Amendment activity outside the Minnehaha County Administration Building and Courthouse, Judge Roberto Lange of the United States District Court of South Dakota issued a one-time renewal yesterday of his temporary restraining order against that policy.

On May 2, the Minnehaha County Commission approved a policy brought forward by new anti-democracy auditor Leah Anderson banning petition circulators from over 99% of the public space outside the county government complex and restricting them to two small rectangles in the parking lot west of the Admin Building and along the curb southeast of the Courthouse. Judge Lange initially restrained enforcement of the restrictions on May 11, one day after Dakotans for Health filed its complaint that the county was violating the First and Fourteenth Amendments. The county had not responded to the complaint, but Judge Lange wrote in his May 11 temporary restraining order that the county’s new policy “preliminarily appears too broad in its restrictions of rights to free speech” and that its vague provisions “seem to do more to deter and frustrate petition circulating at Minnehaha County buildings than addressing ‘unnecessary disruptions or inconvenience’ to county operations or to those visiting county buildings.”

On Friday, Judge Lange got to hear the county’s evidence of disruptions and inconvenience caused by petition circulators and opponents trying to stop people from signing Dakotans for Health’s petitions to place an amendment codifying Roe V. Wade abortion rights on South Dakota’s 2024 ballot. Specifically, county employees complained that petition circulators were obstructing the main west doors of the Admin building, repeatedly asking county employees to sign petitions after employees had already said they were not interested, coming inside the Admin Building vestibule to collect signatures after being told they can’t circulate inside, and engaging in heated exchanges with petition blockers that made the employees feel uncomfortable.

Judge Lange said at the end of Friday’s hearing that it’s “awkward” to extend a temporary restraining order after hearing evidence, but in his one-time extension, issued Tuesday at 4:40 p.m., the Judge says, “this Court does not want to be too hasty with its decision on the motion for preliminary injunction” (i.e., the full block on the new policy Dakotans for Health seeks). Judge Lange also says he “wants to view in person the Minnehaha County campus to ensure a proper mental picture of the relevant areas before finalizing a ruling.”

Judge Lange knows the county campus well and is familiar with its traditional use as a public forum, but he wants to revisit the space with the evidence and arguments in this case in mind:

The undersigned knows well the west entrance and the building because the Administration Building used to be the Minnehaha County Courthouse, and the undersigned entered the building through that same west entrance perhaps a couple hundred times, continuing to use the west entrance at times to access the new Minnehaha County Courthouse which is attached to the building. More than a few of those visits included encountering or passing by someone outside the west entrance seeking signatures on a petition. Upon concluding a 20-year career as a litigation/trial lawyer at a Sioux Falls firm toward the end of 2009, however, the undersigned has entered the Administration Building much more infrequently, perhaps just annually. The undersigned of course is not a witness to anything, and any federal district judge presently on the draw for civil cases in the Southern Division of the District of South Dakota would have similar familiarity with the building and experience. But the undersigned in those possibly two hundred or so visits using the west doors to enter the Administration Building never considered whether the sidewalk outside the west entrance is a traditional or designated public forum or a non-public forum, nor gave thought to what, if this is indeed a designated public forum as was this Court’s initial supposition (now under reconsideration as this Court reads cases cited by Defendants), constitutes a narrowly tailored restriction on First Amendment rights not substantially broader than necessary to achieve the Defendants’ interests. Thus, unless the parties object for good cause on or before June 1, this Court will quietly and quickly conduct its own court view of the premises to aid in its determination of disputed issues, aiming for a time when petition circulators or protestors will not be in the area [Judge Roberto Lange, Opinion Renewing Temporary Restraining Order, Dakotans for Health v. Leah Anderson et al., 2023.05.30, pp. 8].

That discussion of traditional vs. designated vs. nonpublic forum is important: the state (or here, the county) must work a lot harder to justify restricting speech in a traditional public forum like a park or a sidewalk along a street than it does to justify similar restrictions in public spaces completely under the control of the government, like the Admin Building parking lot, the auditor’s office, or a school classroom or gym. Petition circulator Lloyd Ringrose (who is only circulating the food-tax-repeal petition for Dakotans for Health, against whom no complaints of unprofessional behavior have been made, and who I will state from my personal acquaintance with him is a gentle and pleasant professional who would never be so dumb or counterproductive as to shout or inconvenience potential signers while circulating a petition) testified that he has collected signatures outside the Admin Building since the mid-1990s and that it is the best place he knows to collect signature. Ringrose’s regular success in collecting signatures at the Admin Building suggests the space is a traditional public forum. But Judge Lange says he is grappling with case law that leaves “a somewhat convoluted and occasionally inconsistent rubric for evaluating whether an area is a traditional public forum or a non-public forum.”

On the evidence and facts, the defendants’ testimony Friday consisted entirely of county employees, including  Auditor Anderson. The county employees testified, in Judge Lange’s words, “that there were very few issues with petition circulators until four to six months ago.” The recent problems prompting the policy coincide with “for the first time in any witness’s recollection,” the presence of “petition blockers” opposing abortion rights, “leading to voters being exposed on site to differing views on perhaps the single most intractably divisive issue in the United States.”

Judge Lange says the defendants’ testimony helped him understand better “what motivated the new policy, but “this Court remains skeptical that all provisions of the Defendants’ new policy are ‘narrowly tailored to serve a significant government interest.”

The underlying explanation in Anderson’s memorandum and the introductory three explanatory paragraphs in the LIMITED PUBLIC USE POLICY justified neither such a small geographic restriction on petition circulators nor placement of that area away from the entry areas to the Minnehaha County buildings. Textually the provision mandating a “check-in at the Minnehaha County Auditor’s office prior to [petition circulation]. . . to permit the placement of security markers and to verify space availability” is vague, though the Auditor explained that no information about the circulator will be taken, as the purpose is just to trigger placement of orange traffic cones in the “designated area” in the parking lot.… These provisions seem to do more to deter and frustrate petition circulating at Minnehaha County buildings than addressing “unnecessary disruptions or inconvenience” to county operations or to those visiting county buildings, although this Court now has heard an explanation for the policy change that expands on what Anderson wrote or told the commission [Lange, 2023.05.30, pp. 23–24].

Lange says extending the temporary restraining order will prevent the irreparable harm to the plaintiffs of losing First Amendment freedoms while causing “the County to endure for another 14 days the nuisance of petition circulators and blockers near the exterior doors on the west side of the Administration Building.” While plaintiffs would be powerless to reclaim their foiled First Amendment rights if the new policy were allowed to remain in effect, the defendants can address the “nuisance” of circulators’ and opponents’ obstruction and incivility by “impos[ing] the prior policy’s requirements of civility, staying out of the vestibule, and not obstructing ingress or egress to the Administration Building.” Judge Lange reiterates the sufficiency of the prior policy to “blunt such behavior” and preserve public access to government buildings in his explanation that the public interest is on balance served by renewing the temporary restraining order to preserve First Amendment rights.

Thus, Judge Lange has renewed his temporary restraining order for no more than 14 days. Until then—or, more likely, until Judge Lange issues is final ruling on preliminary injunction—petitioners and opponents may stand unobstructively near the west doors of the Admin building, and the county may only enforce the provisions of its prior policy on petition gathering:

Minnehaha County "Petition Gatherers" Policy, superseded by new policy approved May 2, reinstated by extension of temporary restraining order May 30, 2023.
For the next few days, at least, these are the rules you must follow if you are collecting petition signatures outside the Minnehaha County Admin Building. But if you need this policy to tell you to be “polite, courteous, and professional”, you shouldn’t be circulating petitions. Minnehaha County “Petition Gatherers” Policy, superseded by new policy approved May 2, reinstated by extension of temporary restraining order May 30, 2023.

Petition blockers could argue that old “Petition Gatherers” policy doesn’t apply to them, and that the temporary restraint of the broader new policy leaves blockers free to behave like thugs in and around county buildings, but I would suggest that if Manny Steele or Jon Hansen show up and start obstructing pedestrian traffic or otherwise menacing folks at the Admin Building, the Auditor can have them removed for disorderly conduct.

This new ruling and renewed restraint of the county’s restrictions on free speech at the Admin Building and Courthouse suggests that the Plaintiffs have made a strong argument that the prior policy properly enforced would address all of Auditor Anderson’s and the Minnehaha County Commission’s professed concerns about obstruction and impolite, discourteous, and unprofessional behavior from petition circulators and blockers and that the new draconian policy making polite, safe petitioning almost impossible at the county campus is not justified. However, Judge Lange’s stated intent to visit the Minnehaha County campus to see for himself the designated speech zones and the general flow of traffic around those buildings indicate he is truly wrestling with the core legal question of the status of the county campus, and very specifically that crucial sidewalk space outside the west doors of the Admin Building, as a space where members of the public may stand and speak freely.

15 Comments

  1. P. Aitch 2023-05-31

    Good luck, Cory. 👍🏻

  2. Mike Lee Zitterich 2023-05-31

    Let’s keep in mind, the Dakotan’s For Health is a foreign lobby, registered nationally, and is not a homegrown South Dakota group. They accept and grab monies from national lobby groups looking to manipulate and cause confusion inside South Dakota, and harming the excercise of free and fair elections. The Judge has to take into consideration the previous petition drives of the group(s), to determine whether or not, there is just cause to restrict petitioners from standing to close to an entrance of a Public Building. Leah Anderson is NOT attempting to restrict, or limit ‘free speech’ as protected by the S.D Constitution, however, she has a public elected official, has the right given to her by the people (directed by law) to protect the people over right to utilize public services, by best managing, the Public Health, Safety, and Welfare of the County itself. The people have the right to go on any public property for the right to meet with other, record, hold public gatherings, except for where it may cause a public nuisance to those attempting to conduct activities within the facilities themselves. Knowing that specific topics have become aggressively debated, argued, and there are times where they have caused disruption to those in the area, the Public Official or Officer has the right to restrict such activities in the general area of the buildings themselves. It appears, that the Judge is considering the complaints, evidence, and past examples of prior petition groups, prior to making his decision, Smart Judge.

  3. All Mammal 2023-05-31

    Seems obvious the auditor and “blockers” are trying their damndest to retard progress and subvert the voice of thousands of South Dakotans from being able to participate in their constitutional right to petition the government for the return of certain healthcare decisions back to individuals and their physicians, which the overzealous legislature usurped without any medical education or health credentials.

    The same crybabies would run and tattle if I were to even approach them about their private medical decisions. Our sorry state of elected officials is a direct result of decades of intellectual diaspora, which resulted in lack of diversity, and ultimately conservative in-breading

    I love how the D4H contingency plan referenced MLK for its model of conduct. Please, circulators, when the rabid jerks test your resolve, imagine the fire hoses and German shepherds and black jacks. Focus on the goal and just take it like our Civil Rights martyr. We need you and you got this. And thank you x 1,000!

    As for the “blockers”… you cannot stop progress. Your plight is futile and really really rude. You have been tricked by the political fundraisers. If you care about buns in the oven, you would be putting all your energy into protecting our water and keeping the pollution from ever reaching pregnant women’s lips.

  4. leslie 2023-05-31

    Rick Weiland is a cofounder of “ South Dakotans Decide Healthcare [] endorsed by the American Cancer Society Cancer Action Network, AARP South Dakota, South Dakota State Medical Association,
    South Dakota Nurses Association, South Dakota Association of Healthcare Organizations, South Dakota Education Association, South Dakota Farmers Union, Community Healthcare Association of the Dakotas, Great Plains Tribal Leader’s Health Board, Avera Health, Monument Health, Sanford Health, American Heart Association, American Lung Association, South Dakota Faith in Public Life, and more. It is one of the broadest coalitions to ever launch a ballot measure campaign in the state’s history.

    You, MLZ?

  5. Cory Allen Heidelberger Post author | 2023-05-31

    Mike, Dakotans for Health is led by two native South Dakotans, Rick and Adam Weiland. They are not a foreign lobbying group.

    (Leslie’s comment is incorrect: South Dakotans Decide Healthcare is not the Weilands’ organization. SDDH was created by the hospital lobby for the sole purpose of promoting Medicaid expansion. Having succeeded with Amendment D, SDDH dissolved last January.)

    While South Dakota’s residency requirement for petitioners technically cannot be enforced thanks to Judge Piersol’s ruling in Dakotans for Health’s successful lawsuit against 2020 SB 180, every circulator—and, as far as we know, every blocker organized by Jon Hansen and Leslee Unruh—is a South Dakotan.

    However, First Amendment rights apply equally to all Americans. I believe even foreign visitors may assert a right to speak freely on our glorious soil. Thus, your portrayal of the petitioners as outsiders is not only false but irrelevant to the legal questions at hand.

    Previous petition drives are also irrelevant to the case Mike is trying to make on behalf of anti-democracy Auditor Anderson and the Minnehaha County Commission. If anything, the fact that petition drives have traditionally taken place at the Admin Building for decades and that there is no evidence that any citizens were ever prevented from getting inside and getting their license plates or paying their property taxes supports the Plaintiffs’ arguments that (1) the county campus is a traditional public forum where the county’s ability to limit free speech is very limited and (2) the prior policy is more than sufficient to manage any uncomfortable situations.

    Mike’s invocation of “specific topics” is exceptionally problematic: any content-based restrictions will fail judicial scrutiny. You can’t ban speech because of the topics people are discussing.

  6. Tiffany Campbell 2023-05-31

    MLZ, Dakotans for Health was co-founded by Rick and Adam Weiland, longtime residents of Sioux Falls, SD. Rick has worked in politics for 35+ years, his son, Adam, 20 years. I work for Dakotans for Health, we are the very definition of a grassroots organization. It seems to me that you have done zero research before posting your comment. I have lived in Sioux Falls for 20 years, and spent the last 17 working in various aspects of public policy. Looks like you haven’t looked up any Dakotans for Health public records or financial disclosures to see how we’re funded. Next time come with receipts.

  7. P. Aitch 2023-05-31

    Tiffany Campbell – 1
    Mike Lee Zitterich – 0

  8. grudznick 2023-05-31

    The problems with the Dakotans for Health group is not that they are foreign evil government sponsored fellows, it is that they write sloppy, sloppy, sloppy law bills. Very sloppy and flawed.

  9. Arlo Blundt 2023-05-31

    By foreign, I believe Mr. Zitterich means “they are from Sioux Falls.”

  10. Donald Pay 2023-05-31

    I have petitioned at the Rapid City and Sioux Falls Courthouses. My mother used to work in the Sioux Falls Courthouse. This was back in the 1980s and 1990s. I never saw a problem at either site. Neither did my mother, except when petitioners would come inside, which was allowed, or at least tolerated, back then.

    In Rapid we were able to stand inside for the 1984 Nuclear Waste Vote Initiative petitioning. Back then people would line up on that last few days to get license plates/tags. That was a gold mine for petitioning.

    Eventually, Pennington County developed a policy that petitioners needed to be outside the building due to clogging of the entrance and interfering with business inside the courthouse, and we had no problem complying with that request. However, they wanted to limit the outside petitioning as well. Our most dedicated circulator told them he would refuse to abide by that policy. They could arrest him if they wanted, it would create a nice controversy, and he would sue. Cooler heads prevailed, and the county backed down on the outside part. As I said, petitioners worked with the county to come up with reasonable policies back the the good old days, It’s too bad the Minnehaha County Commission didn’t engage with petitioners before they went all anti-First Amendment on the people they are supposed to serve.

  11. Jeff Barth 2023-06-01

    We had this all out some years ago. An ad hoc committee was formed and we came out with a sensible plan that worked until now.

    Petition gathering was to stay outside without obstructing the entrance. They could come into the building to warm up. Teresa Stehley said that “the pens don’t work when it gots too cold.” But we made no exception frozen ink.

    This plan worked for years until people became more uncivil.

  12. Donald Pay 2023-06-02

    The pens work fine if you have several and put them inside your coat. Body warmth does wonders for frozen pens…and frozen hearts.

  13. Cory Allen Heidelberger Post author | 2023-06-03

    I wonder: given the lack of accessible public spaces, and given that courthouses are meant to be the local temples of democracy, perhaps every courthouse should include an indoor gathering space, a large central atrium, like the Rotunda in the Capitol, with benches and room for maybe half a dozen petitioners to stand and talk with a couple people each and for people to either walk up and talk to those petitioners or to walk around them easily to the various offices and courtrooms.

  14. grudznick 2023-06-03

    If the paper bearing obstructers get too much in the way of citizens going about their business, I expect it might be sooner than later that a trampling occurs. Fellows on their way to pay for their new license plates or write checks for taxes usually aren’t in a great mood and don’t care for people who shove a paper and pencil in their face, and probably will just rush right through the obstructions like Earl Campbell smashing through the Sooner defense.

  15. Donald Pay 2023-06-03

    Cory’s idea is interesting, but it seems to me to segregate petitioning too much.

    Grudz, In my years of gathering signatures at the Pennington County Courthouse I never had a person acting out belligerently. Maybe it’s because it was close to the county jail. Whether they disagree with your petition or they are just intent on completing their business, people generally just say, “No, thanks” or “Not right now.” A few people will say something indicating disapproval, but you just move on to the next person. Now, at the Thriller games, we had a few people who would be in a hurry to get into the venue at the Civic Center. There you might be in danger of being trampled.

    I suppose the abortion issue brings more heated emotions, but people have to learn how to control their emotions and just get on with the petitioning.

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