In May, when Dakotans for Health sued the Minnehaha County Commission and Auditor Leah Anderson for imposing its new policy banning petition circulators from standing near the main doors of the county administration building and courthouse, U.S. District Court Judge Roberto Lange issued a temporary restraining order one day later, prohibiting enforcement of this apparent violation of the First Amendment.
On Tuesday, Dakotans for Health filed a suit against the Lawrence County Commission for enforcing a policy enacted in March 2020 that bans petition circulators from speaking with voters and collecting signatures at the main doors of its admin building and courthouse. The case was reassigned from Judge Karen Schreier to Judge Lange Wednesday. One day later (yesterday at the close of business), Judge Lange issued a temporary restraining order against Lawrence County’s petitioner restrictions, saying it appears likely that Lawrence County is violating the First Amendment just as Minnehaha County did.
“Although the facts here differ from those in Dakotans for Health v. Anderson,” writes Judge Lange, “the issues and analysis are similar.” One key factual difference between the two cases is the nature of the sidewalks in front of the administration buildings. In the Minnehaha County case, the sidewalk where the commission and auditor attempted to prohibit First Amendment activities is a walkway inside county property, between the parking lot and the west doors of the Admin Building. Judge Lange had to do some work to determine that this technically internal sidewalk still constitutes a traditional public forum where core political speech is protected. In the Lawrence County case, the sidewalk in question runs along Center Street, which appears to be a normal public right-of-way where the county has zero authority to prohibit First Amendment activities.
Judge Lange checks Google Maps himself and offers this cartographic analysis:
The images show that the County Campus is surrounded by what appears to be a wraparound public sidewalk that lies parallel and perpendicular to Center Street, Sherman Street, and Pine Street. The sidewalk appears to provide access not only to the County Campus buildings, the outdoor plaza, and what Plaintiffs say is the most used south entrance to the Annex building, but also to a parking lot and parking garage where this Court assumes the public may park to access the Campus or downtown Deadwood in general. Defendants’ Policy this appears to remove public sidewalks from petition circulation activity and confine that activity to the outdoor plaza. The outdoor plaza looks to be a nice area for a gathering or group protest, but removes petition circulators from where they would or could approach pedestrians on public sidewalks adjacent to county buildings. The policy on initial blush appears to be overly restrictive and prevents petition circulators from peacefully exercising their First Amendment rights to which they are entitled on public or traditional public forums around this kind of government property [Judge Roberto Lange, temporary restraining order, Dakotans for Health v. Ewing et al., 2023.06.22].
Judge Lange notes that this public sidewalk on Center Street is large enough to accommodate folks standing around and discussing great political issues of the day, a fact the county seems to recognize with its own amenities outside the south entrance of its administrative annex:
There appears to be ample space in and along the public sidewalks around the building and main County Campus entrance for petition circulators to stand without obstructing pedestrian traffic into or around the buildings. Indeed, there even appears to be a bench for people to sit and a cigarette disposal container immediately outside the Annex building entrance. If there is room for people to sit and smoke on the public sidewalk right next to the most used entrance to the County Annex building, Plaintiffs are likely to succeed on the merits of their claim that there is ample room for exercising fundamental First Amendment rights in that space, too [Lange, 2023.06.22].
Judge Lange notes another key factual difference from the Minnehaha case that could weigh in Lawrence County’s favor. Dakotans for Health sued Minnehaha County almost immediately after the enactment of the petition restrictions in May. Its suit against Lawrence County comes more than three years after the petition restrictions were enacted:
Unlike in Anderson, Plaintiffs here challenge a policy that has been in place for more than three years. “Without question, ‘[a] long delay by plaintiff after learning of the threatened harm… may be taken as an indication that the harm would not be serious enough to justify a preliminary injunction.'” Adventist Health Svstem/SunBelt. Inc. v. U.S. Dept. of Health & Human Servs., 17 F. 4th 793, 805 (8th Cir. 2021) (quoting Wright & Miller, 11A Fed. Prac. & Proc., §2948.1 & n.l3 (3d ed. 2013)). Because of the delay, Plaintiffs here may have to clear a hurdle that was not present in Anderson, where the lawsuit was brought mere days after the challenged policy went into effect. On the other hand, the Bothamley Declaration shows Plaintiffs suffered a harm as recently June 12, 2023, Doc. 5, and perhaps that was the first time the policy has been enforced directly to the detriment of Plaintiffs. This case presents a closer call on irreparable harm than in Anderson. Because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” this factor weighs somewhat in favor of temporary and immediate relief [Lange, 2023.06.22].
One key difference not addressed in the temporary restraining order is the absence on the record of what past policy Lawrence County may have had on petition circulation on its campus. In Minnehaha County, the auditor and commission published the old policy and the new (now enjoined) May 2 restrictions together in the county agenda packet. In that case, the plaintiffs and the Court were able to point to the old policy as sufficient to address concerns about civil conduct and unobstructed access to the building. In Lawrence County, the March 2020 agenda packet and minutes offer no information about any previous policy.
This temporary restraining order does not block the entire petition circulator policy. Judge Lange is restricting Lawrence County only from enforcing the provisions that restrict political activity to the interior plaza. Lawrence County may continue to enforce the parts of the policy requiring circulators to behave civilly and not block the doors of county buildings.
As in Minnehaha County, this restraining order against Lawrence County remains in effect for 14 days or until the court hears arguments, whichever comes first. So, today and probably until 4:48 p.m. on July 6, well-behaved petitioners may collect signatures wherever they like around (and in!) the Lawrence County government campus.
Given the nature of the experiences I have had with “smaller” SD governmental entities, there was likely NO POLICY on petition circulation in Lawrence County prior to the one enacted in 2020. But that’s just speculation on my part. I guess we’ll see what the answer to the question on that Judge Lange is sure to ask will be.
Creating resentment in a county where the residents are local high school dropouts who married their sisters, strung out on meth somewhere and are only paying taxes in the casinos, through video lootery, Mickey’s malt liquor, cigarettes and fuel is probably a dangerous approach to democracy, init?
Thank you for keeping us updated on the news. The Rapid City (Sports) Journal could only be bothered to print Tuesday’s lawsuit story in its Friday edition. The Black Hills Pioneer has yet to address the lawsuit.
The turnout for school board elections in Hot Springs was 5.4%.
D4H should start slapping a monetary compensation on their court paperwork. These persons who are impeding our circulators are costing us precious time. Time is money and time is running.
Instead of D4H being the official plaintiff, could a certain public plaza denied circulator sue the specific men and women who signed onto these rights violations to force them to make the circulator whole and pay the bill for their troubles? There needs to be a formidable deterrent to stop sliding down this slippery slope to subjugation.
You would think the humiliation and shame of the judge ruling them First Amendment violators would shy the local courthouse officials away from these dastardly policies. Either fine or fire them when they are essentially judged as violating the very premise of their purpose. There must be a more dire consequence for these violations because these tools clearly have no conscience or desire for upholding the will of the people. Democracy must be defended like the last red velvet cupcake we’re hiding for later.
I don’t understand the thinking that if something is unconstitutional but hasn’t been challenged in three years that it gets a pass. I can think of lots of reasons why that time delay should make no difference:
1. How would anyone know about the county’s policy if there had been no any petition circulation at the courthouse since they enacted the policy, or the policy hadn’t been enforced on anyone in that time period? Most people tend to follow the law or policy they are given, assuming that it is Constitutional, So when they are told they can only petition in a specific courtyard, they just assume that will be fine. It’s only later that they figure out that this was just government restricting their speech unconstitutionally.
2. Couldn’t the policy, despite it being a violation of First Amendment rights, simply have scared off anyone from trying to circulate a petition there?
3. What First Amendment activity has been prevented or not prevented by having this policy? A citizen or two standing there and talking to a county commissioner over an issue that was being petitioned, but not at that site, would create about the same amount of “concern” about door blockage, etc. You really think those three talking folks would be run off the site? I think not. Yet if one of those folks has a clipboard in her hands, that makes it a problem for the county? I think not.
4. That sidewalk looks to be a public space. There is a bench nearby for people to sit and catch some rays. There’s a billboard right by the door where people can read notices. If they were concerned about door blockage, they might want to take down that billboard.
After reading Larry Kurtz`s diatribe describing us Lawrence county residents, I am reminded of another immature, petulant, name calling individual by the name of Trump. You must be one of his MAGA disciples.
Lawrence County looks like a bargain compared to property in richer blue states so it’s easy to double your money there and even Mike Trucano is cashing out hoping to outrun the state’s Nazi onslaught.
Spearditch is the seat of whiteness in LawCo so in the winter Exit 14 looks like a monument to the clear-span building that has been air-dropped into Antarctica. Main Street Spearditch is often ignored but a stroll reveals a few 60 or 70-somethings going into cafés, Ace Hardware or one of the banks. Life-long residents drive to Rapid City and Denver to shop forsaking local merchants.
The resultant soaring median age of the retirees seeking deliverance from the cultural diversities thriving in Colorado, California, Minnesota, even Arizona and Oregon drives the exploitation of South Dakota’s regressive tax structure and reinforces the racially insulated Nazi enclave that Spearditch is today.
To little surprise the assisted living, funeral home and florist industries do very well and now that brown workers can take the driver’s license exam in Spanish white people can spend more time snorting and shooting meth.
Many, if not most, of these obese Republican slackers take advantage of the dynasty trust industry and flee the frozen tundra in their RVs ahead of consecutive six-month winters and strings of below-zero days.
The more white Republicans move to South Dakota the less safe American Indians become. Native Americans represent at least 9% of the population in South Dakota, but by design they account for 14% of all deaths from the Trump virus.
The reasoning is hardly mysterious: it’s all about the money prostitution, the Sturgis Rally, policing for profit, sex trafficking, hunting and subsidized grazing bring to the South Dakota Republican Party destroying lives, depleting watersheds and smothering habitat under single-party rule.
People like Doug and Scott Odenbach parachute into LawCo thinking it’s more than just a strip mine when that’s all it really is.
Somebody is going to get hurt up there. Y’all don’t know how bad Central City and Lead have become.
Pizza lab has gone to hell. There is a new toker bar that failed as a dispensary. And the Casino bar…don’t even get grudznick going about the downhill slide there since Lumpy Mattson took over.
Don’t make me drive up there.
Donald, I don’t think Judge Lange would say that a violation of the Constitution gets a pass just because it’s been in place for a long time and no one has said anything. I think he’s making his comment about timeframe in the context of his discussion of the request for a temporary restraining order, which must be supported by, among other things, a finding that the plaintiffs are suffering some irreparable harm from leaving the policy in place. If the policy has been in place for three years and hasn’t done any noticeable harm to the plaintiffs, the judge might not issue a TRO before hearing arguments. But as the judge suggests, it is possible that no one noticed harm previously because the county only just this month started enforcing it against the plaintiffs.