SD Voice v. Noem
| Decision Date | 03 November 2021 |
| Docket Number | 1:19-CV-01017-CBK |
| Citation | 570 F.Supp.3d 743 |
| Parties | SD VOICE and Cory Heidelberger, Plaintiffs, v. Kristi NOEM, Governor of South Dakota, in Her Official Capacity; Jason Ravnsborg, Attorney General of South Dakota, in His Official Capacity; and Steve Barnett, Secretary of State of South Dakota, in His Official Capacity, Defendants. |
| Court | U.S. District Court — District of South Dakota |
James D. Leach, Attorney at Law, Rapid City, SD, for Plaintiffs.
Clifton E. Katz, Jeffery J. Tronvold, Holly R. Farris, Attorney General of South Dakota, Pierre, SD, for Defendants Kristi L. Noem, Jason Ravnsborg, Steve Barnett.
This matter is once more before the Court. Defendants South Dakota Governor Kristi L. Noem, South Dakota Attorney General Jason Ravnsborg, and South Dakota Secretary of State Steve Barnett ("defendants"), all in their official capacities, ask this Court to stay its prior ruling permanently enjoining SDCL 2-1-1.2 pending their appeal to the United States Court of Appeals for the Eighth Circuit, pursuant to Federal Rule of Civil Procedure 62(d).1 In turn, plaintiffs SD Voice and Mr. Cory Heidelberger ("plaintiffs") urge this Court not to stay its prior memorandum opinion and order while this matter is before the appellate court.
If this Court was to stay its permanent injunction, the filing deadline for initiative measures to be placed on the November 2022 election would be November 8, 2021, a mere few days away, rather than May 3, 2022 (the first Tuesday in May of the election year), as is constitutionally required pursuant to the First Amendment to our Constitution. Finding the relevant factors lean in favor of not staying this Court's prior memorandum opinion and order, defendants’ motion should be denied.
Federal Rule of Civil Procedure 62(d) " ‘codifies the inherent power of courts to make whatever order is deemed necessary to preserve the status quo and to ensure the effectiveness of the eventual judgment.’ " Knutson v. AG Processing, Inc., 302 F.Supp.2d 1023 (N.D. Iowa 2004) (quoting 11 FEDERAL PRACTICE AND PROCEDURE § 2904 (Wright & Miller)). It is " ‘generally the rule that ‘when an appeal is perfected the district court loses jurisdiction to take further action in the cause’ but that Rule 62(d) ‘is an exception to that general rule and a recognition of the long established right of the trial court, after an appeal, to make orders appropriate to preserve the status quo while the case is pending in the appellate court.’ " Portz v. St. Cloud Univ., 470 F.Supp.3d 979, 989 (D. Minn. 2020) (quoting United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (9th Cir. 1951) ). See also Twin Cities Galleries, LLC v. Media Arts Group, Inc., 431 F.Supp.2d 980, 983 (D. Minn. 2006)2 ().
When assessing a party's motion to stay an injunction pending appeal, the Court looks to four factors: "(1) the likelihood of the movant's success on the merits, (2) whether the movant will be irreparably harmed absent a stay, (3) whether issuance of the stay will substantially injure the non-moving party and (4) the public interest." Id. (citing Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) ). The District Court's analysis pursuant to Federal Rule of Civil Procedure 62(d) is analogous to United States Courts of Appeals’ decision-making on whether to grant a stay of a permanent injunction pending appeal pursuant to Federal Rule of Appellate Procedure 8(a). Compare id., with Org. of Black Struggle v. Ashcroft, 978 F.3d 603, 607 (8th Cir. 2020) (citing Brakebill v. Jaeger, 905 F.3d 553, 557 (8th Cir. 2018) ).
The Governor, Attorney General, and Secretary of State carry the burden to show that a stay is warranted in this matter. See Powerlift Door Consultants, Inc. v. Shepard, 2021 WL 2911177 at *2 (D. Minn. July 12, 2021) (unpublished ). And " ‘[b]ecause the burden of meeting this standard is a heavy one, more commonly stay requests will not meet this standard and will be denied.’ " Brady v. Nat'l Football League, 779 F.Supp.2d 1043, 1046 (D. Minn. 2011) (quoting 11 FEDERAL PRACTICE AND PROCEDURE § 2904 (Wright & Miller)).
The first factor, the likelihood the movants will succeed on the merits, is the most important factor. See Org. of Black Struggle, 978 F.3d at 607 ; see also Twin Cities Galleries, LLC, 431 F.Supp.2d at 983 () (citing S&M Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir. 1992) ). Fatal to defendants’ motion is that they cannot show likely success on the merits on reversing this Court's permanent injunction.3 In its prior opinion, SD Voice v. Noem, ––– F.Supp.3d ––––, 2021 WL 3861795 (D.S.D. 2021), this Court has carefully analyzed the applicable First Amendment case law that makes bare that the enjoined State statute was unconstitutional. Unlike in the United States Court of Appeals for the Eighth Circuit's decision in Organization for Black Struggle v. Ashcroft, the reasoning on why SDCL 2-1-1.2 is constitutionally impermissible is not "weak," but rather is clear: "The State's interests do not even come close to justify [the] diminution in political discourse" that comes from such a far-removed petition circulation deadline from the election itself. SD Voice, ––– F.Supp.3d at ––––, 2021 WL 3861795 at *5. Because "[t]he South Dakota filing deadline for ballot measure petitions does not strike an appropriate balance as required by the First Amendment," defendants cannot show they are likely to succeed on the merits. Id.
While sometimes "cases raising substantial difficult or novel legal issues" may merit a stay, this Court is unpersuaded that this matter rises to the bar of "substantial[ly]" difficult or novel issues to warrant this prong tipping in favor of defendants. Rosenbrahn v. Daugaard, 61 F.Supp.3d 862, 876 (D.S.D. 2015) (citing 11 FEDERAL PRACTICE AND PROCEDURE § 2904 (Wright & Miller)). True, the Eighth Circuit has not yet ruled on this issue, but defendants still must Wigg v. Sioux Falls Sch. Dist. 49-5, 2003 WL 27384064 at *1 (D.S.D. Aug. 22, 2003) (unpublished ) (quoting Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc )). Because defendants fail to present a "showing of probable success on the merits," this factor leans in favor of not staying this Court's prior judgment. Id.
Next, the Court turns to the second factor: whether defendants will be irreparably injured absent a stay.
First, defendants argue they could be irreparably injured because "[s]hould the one year filing deadline found in SDCL 2-1-1.2 be upheld at the appellate level, those ballot initiated measures that were filed after November 8, 2021 but by the first Tuesday in May of the 2022 election year will not be eligible to be put on the 2022 ballot." BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO STAY , doc. 81 at 6. While this is a valid concern, this argument more properly falls under the public interest factor than injury to the defendants and is addressed later, see infra II.B.4.
Second, the defendants argue that they are injured because they are precluded from " ‘applying [the State's] duly enacted legislation regarding election procedures.’ " Id. (quoting Org. for Black Struggle v. Ashcroft, 978 F.3d 603, 609 (8th Cir. 2020) ). However, the defendants prove this argument is self-defeating because "[t]his constitutes irreparable harm unless the legislation is unconstitutional." Id. (emphasis added) (citing Org. for Black Struggle, 978 F.3d at 609 ). Because this Court has explained that SDCL 2-1-1.2 is unconstitutional , this cannot stand as an irreparable harm and finds this factor leans in favor of denying a stay.
Third, the Court turns to what injury plaintiffs may suffer by staying this injunction. Plaintiffs contend they may be injured because they could file an initiative petition based on possible upcoming "political developments in South Dakota." PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STAY , doc. 89 at 5. Like defendants, plaintiffs have yet to take active steps to prepare a petition. SD Voice and Mr. Heidelberger bring the Court's attention to Brendtro v. Nelson, where, in response to the South Dakota legislature electing not to repeal the gross receipts tax on wireless telecommunications, an initiative petition to repeal the tax was filed a mere two months prior to the May deadline.4 See 720 N.W.2d 670, 673 (S.D. 2006). While neither SD Voice or Heidelberger have made the Court aware of any plans to begin an initiative petition, they would nevertheless be injured if the Court were to stay its prior order and if subsequent actions of the Legislature offered impetus for the plaintiffs to seek to circulate a petition.
Regardless of any potential petitions circulated by plaintiffs, "[i]t is well-established that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ " Powell v. Noble, 798 F.3d 690, 702 (8th Cir. 2015) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ) (second alteration in original). Further, there is no adequate remedy at law for a loss of plaintiffs’ ability to exercise...
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