Libertarian Party of South Dakota et al v. Krebs et al
Filing
18
ORDER granting in part and denying in part 8 Motion to Dismiss, 8 Motion to Change Venue; granting 12 Motion to Amend/Correct. Signed by U.S. District Judge Karen E. Schreier on 1/26/16. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
LIBERTARIAN PARTY OF SOUTH
DAKOTA;
KEN SANTEMA, State Chair of the
Libertarian Party of South Dakota;
BOB NEWLAND;
CONSTITUTION PARTY OF SOUTH
DAKOTA;
LORI STACEY, State Chair of the
Constitution Party of South Dakota; and
JOY HOWE,
4:15-CV-04111-KES
ORDER GRANTING PLAINTIFFS’
MOTION TO AMEND COMPLAINT AND
GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION TO
DISMISS AND ALTERNATIVE MOTION
FOR CHANGE OF VENUE
Plaintiffs,
vs.
SHANTEL KREBS, in her official capacity
as Secretary of State of the State of South
Dakota; and
MARTY J. JACKLEY, in his official
capacity as Attorney General of the State
of South Dakota;
Defendants.
Plaintiffs, the Libertarian Party of South Dakota, Ken Santema, Bob
Newland, the Constitution Party of South Dakota, Lori Stacey, and Joy Howe,
bring suit against defendants, Shantel Krebs and Marty J. Jackley. Plaintiffs
challenge the constitutionality of Senate Bill 69, which amends the date new
political parties must file their written declaration to appear on the general election
ballot. Defendants move to dismiss plaintiffs’ complaint or, in the alternative,
transfer venue to the District Court of South Dakota, Central Division. Plaintiffs
move to amend their complaint to include a challenge to the current version of
SDCL 12-5-1. This court grants in part and denies in part both motions.
BACKGROUND
The facts as alleged by plaintiffs are as follows:
A new political party, if it complies with SDCL 12-5-1, may participate in the
South Dakota primary election. The new party must submit “a written declaration
signed by at least two and one-half percent of the voters of the state . . .” by “the
last Tuesday of March at five p.m.” SDCL 12-5-1. In 2015, the South Dakota
legislature passed SB 69, which changes the filing deadline in SDCL 12-5-1 from
the “last Tuesday of March” to the “first Tuesday of March.” Governor Dennis
Daugaard signed SB 69 into law on March 20, 2015.
Generally, laws passed during the regular legislative session take effect the
subsequent July first;1 however, the people of South Dakota reserve the right to
challenge recently passed legislation by filing a petition with the Secretary of
State’s office for a statewide voter referendum. SDCL 2-1-3. If the petition is
successful, the legislation will not go into effect unless a majority of voters
approve. In this litigation, plaintiffs filed their complaint before a valid referendum
petition for SB 69 was filed. SB 69 is scheduled to appear on the 2016 general
election ballot as “Referred Law 19.”
Defendants move to dismiss the complaint for lack of subject matter
jurisdiction or, in the alternative, transfer venue to the District Court of South
Dakota, Central Division. Because plaintiffs’ complaint challenges only SB 69,
plaintiffs move to amend their complaint—adding a challenge to SDCL 12-5-1.
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SDCL 2-14-16.
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I. Motion to Amend Complaint2
STANDARD OF REVIEW
Motions to amend are freely granted when justice so requires. Fed. R. Civ. P.
15(a). The Eighth Circuit Court of Appeals takes a “liberal viewpoint towards leave
to amend” and leave “should normally be granted absent good reason for a denial.”
Popp Telcom v. Am. Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000). Leave to
amend is denied only if evidence exists such as “undue delay, bad faith, or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futility of the amendment.” Roberson v. Hayti
Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)). An amendment is futile if “the amended complaint could not
withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.” Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010) (quoting Cornelia I.
Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008)).
DISCUSSION
Defendants argue two reasons why plaintiffs’ amended complaint would not
survive a motion to dismiss: (1) plaintiffs have not sustained an injury-in-fact; and
(2) plaintiffs have failed to satisfy a prerequisite to suit by not attempting to
comply with SDCL 12-5-1. This court is not persuaded by either argument.
Plaintiffs move to amend their complaint to include a challenge to SDCL 12-5-1.
Defendants object both to the amendment and the current challenge to SB 69.
This section of the court’s order will address only the challenge to SDCL 12-5-1.
Because the portion of plaintiffs’ complaint challenging SB 69 is inextricably tied
to defendants’ motion to dismiss, both of those issues will be addressed in the
motion to dismiss section of this order.
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A.
Injury-in-fact
The Eighth Circuit Court of Appeals recognizes a voter’s right to challenge
ballot access laws. In McLain v. Meier, 851 F.2d 1045 (8th Cir. 1988), the Eighth
Circuit Court of Appeals held Presidential Candidate Harley McLain could
challenge North Dakota’s ballot access law based on his standing as a voter, not a
candidate.3 The Eighth Circuit explained the ballot access law would “restrict
[McLain’s] ability to vote for the candidate of his choice or dilute the effect of his
vote if his chosen candidate were not fairly presented to the voting public.” Id. at
1048. The Eighth Circuit’s primary concern was the law’s impact on “voters who
[choose] to associate together to express their support” for a candidate, not the
impact on the candidate. Id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 806
(1983)). McLain could challenge the law because it impacted his right to vote. Id.;
cf. Green Party of Ark. v. Martin, 649 F.3d 675 (8th Cir. 2011) (The Eighth Circuit
allowed the Green Party to challenge Arkansas’s ballot access law, which required
new political parties to file a petition with 10,000 signatures before appearing on
the primary election ballot.)
Plaintiffs here have shown an injury-in-fact, not merely a generalized
grievance. The law’s impact on plaintiffs’ right to vote is sufficient to provide
plaintiffs standing. The restrictive nature of SDCL 12-5-1 impacts plaintiffs’
candidates, whom plaintiffs support. Because SDCL 12-5-1 may
unconstitutionally exclude plaintiffs’ candidate-of-choice from the primary
election, plaintiffs have standing to challenge the law.
The Eighth Circuit noted McLain could not be president because he did not meet
the constitutional age requirement by the 1984 presidential inauguration. Id. at
1047-48.
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B.
Attempted compliance
Although the Supreme Court and the Eighth Circuit Court of Appeals have
not expressly stated whether plaintiffs must attempt to comply with ballot access
laws before challenging them, the Supreme Court dealt with a similar situation in
Williams v. Rhodes, 393 U.S. 23 (1968). In Williams, the Supreme Court allowed
the Ohio American Independent Party and the Socialist Labor Party to challenge
ballot access laws without first attempting compliance. The Court concluded it had
jurisdiction,4 even though the Socialist Labor Party “did not even attempt to
comply with the statutory” requirements of the ballot access law. Id. at 45-46
(Harlan, J., concurring); See also id. at 65 (Warren, J., dissenting) (stating
“Nevertheless, neither the American Independent Party nor the Socialist Labor
Party made an effort to comply with Ohio’s election laws.”) The Court decided the
case on its merits and concluded that both political parties had standing to bring
suit. See id. at 28 (majority opinion).
Plaintiffs have standing to challenge SDCL 12-5-1, even if plaintiffs have not
attempted to comply with the statute. Similar to the Socialist Labor Party in
Williams, plaintiffs have not attempted to comply with South Dakota’s ballot
access law. As shown in Williams, this is not a bar to litigation. Plaintiffs have
standing to bring their claim.
Because plaintiffs’ proposed amended complaint would survive a motion to
dismiss, the amendment is not futile. In keeping with the Eighth Circuit Court of
Appeals’ view that leave to amend should be freely given, plaintiffs may amend
their complaint to include a challenge to SDCL 12-5-1.
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Id. at 28.
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II. Motion to Dismiss5
STANDARD OF REVIEW
Defendants’ motion to dismiss is brought under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject-matter jurisdiction. A party challenging
subject-matter jurisdiction under Rule 12(b)(1) must attack either the facial or
factual basis for jurisdiction. See Osborn v. United States, 918 F.2d 724, 729 n.6
(8th Cir. 1990). The court considers matters outside the pleadings without giving
the nonmoving party the benefit of the Rule 12(b)(6) safeguards. Id. at 729-30. The
plaintiff carries the burden of showing that jurisdiction exists. V S Ltd. P’ship v.
Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (citation
omitted).
Because federal courts are courts of limited jurisdiction, they only have the
ability to hear cases that are “ ‘authorized by Article III of the Constitution and the
statutes enacted by Congress pursuant thereto.’ ” Gray v. City of Valley Park, Mo.,
567 F.3d 976, 982-83 (8th Cir. 2009) (quoting Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986)). Under Article III there must be a case or
controversy at every stage of the litigation, which requires “ ‘a definite and concrete
controversy involving adverse legal interests[.]’ ” Id. at 983 (quoting McFarlin v.
Newport Spec. Sch. Dist., 980 F.2d 1208, 1210 (8th Cir. 1992)). “ ‘Federal courts
must always satisfy themselves that this requirement has been met before
reaching the merits of a case.’ ” Id. (quoting Schanou v. Lancaster Cty. Sch. Dist.
No. 160, 62 F.3d 1040, 1042 (8th Cir. 1995)). This requirement, also known as a
matter’s justiciability, is typically tested by three doctrines: ripeness, mootness,
5
This section addresses plaintiffs’ challenge to SB 69.
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and standing. Id. Thus, a suit brought by a plaintiff that is not ripe is not a case or
controversy, and an Article III federal court lacks subject-matter jurisdiction over
the suit. See KCCP Trust v. City of North Kansas, 432 F.3d 897, 899 (8th Cir.
2005).
“The touchstone of a ripeness inquiry is whether the harm asserted has
‘matured enough to warrant judicial intervention.’ ” Parrish v. Dayton, 761 F.3d
873, 875 (8th Cir. 2014) (quoting Vogel v. Foth & Van Dyke Assocs., Inc., 266 F.3d
838, 840 (8th Cir. 2001)). A claim is not ripe for adjudication if it rests upon
‘contingent future events that may not occur as anticipated, or indeed may not
occur at all.’ ” Id. at 875-76 (quoting Texas v. United States, 523 U.S. 296, 300
(1998). When determining whether an issue is ripe, the court examines “both the
‘fitness of the issues for judicial decision’ and ‘the hardship to the parties of
withholding court consideration.’ ” Id. at 875 (quoting Neb. Pub. Power Dist. v.
MidAm. Energy Co., 234 F.3d 1032, 1038 (8th Cir. 2000)). “The fitness prong
‘safeguards against judicial review of hypothetical or speculative disagreements.’ ”
Id. (quoting Neb. Pub. Power Dist., 234 F.3d at 1038). “The hardship prong asks
whether delayed review ‘inflicts significant practical harm’ on the plaintiffs.” Id. at
875.
In South Dakota, a bill signed by the governor, but referred to the voters by
referendum, is unable to take effect until it is passed in the general election. SDDS,
Inc. v. State, 481 N.W.2d 270, 271 (S.D. 1992). A bill cannot become a law until
there is “legislative enactment, gubernatorial approval, and referendum when
referendum petitions are properly filed.” Id. at 272. Until all three requirements are
met, a bill has no impact.
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Because SB 69 may never become law in South Dakota, any challenge to the
bill at this point would be hypothetical and speculative. Plaintiffs argue their claim
“fully matured” when SB 69 was “scheduled to go into effect on July 1, 2015 . . . .”
Docket 14 at 3. Plaintiffs’ claim, however, did not mature until the deadline for
referendum petitions had passed, which is “ninety days after the adjournment of
the Legislature which passed the referred law.” SDCL 2-1-3.1. Now, because SB 69
was successfully petitioned by voters, plaintiffs’ claim will not mature, if at all,
until after the November election. Because plaintiffs’ challenge to SB 69 is not ripe
for judicial review, plaintiffs’ challenge to SB 69 is dismissed without prejudice.
III. Motion to Change Venue
Defendants argue venue should be transferred to the District of South
Dakota, Central Division. A case may be transferred, under 28 U.S.C. § 1404, “[f]or
the convenience of parties and witnesses, in the interest of justice” to “any other
district or division where it might have been brought or to any district or division
to which all parties have consented.” The statute permits “transfer to a more
convenient forum, even though the venue is proper.” In re Apple, Inc., 602 F.3d
909, 912 (8th Cir. 2010) (quoting Van Dusen v. Barrack, 376 U.S. 612, 634 n.30
(1946)). The plaintiff’s choice of forum, however, is given considerable deference,
and the party seeking transfer bears the burden of proving transfer is warranted.
Id. at 913 (citing Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 695 (8th Cir.
1997)). Although there is not an “exhaustive list of specific factors to consider,”6
courts weigh any “ ‘case-specific factors’ relevant to convenience and fairness to
6
Id. at 912 (citing Terra Int’l, 119 F.3d at 691).
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determine whether transfer is warranted.”7 Factors may include “convenience to
the parties and witnesses,” “location of documents,” and “the place where the
alleged wrongs occurred.”
This court finds that defendants’ arguments do not overcome the
presumption in favor of plaintiffs’ choice of forum. The challenged law, SDCL
12-5-1, is applicable throughout the state. Thus, the law can be challenged in any
division within the District of South Dakota. Additionally, two of the plaintiffs, Joy
Howe and Lori Stacey, reside in the Southern Division, and no plaintiffs reside in
the Central Division. Docket 14 at 5-6. Unlike In re Apple, Inc., the primary case
cited by defendants, plaintiffs in this case are not aliens to the forum, and
plaintiffs do not seek to litigate in the Southern Division because the applicable
law is more favorable than the Central Division. For these reasons, defendants are
unable to overcome the presumption in favor of plaintiffs’ choice of forum.
CONCLUSION
Plaintiffs’ amendment to the complaint is not futile because plaintiffs have
standing to challenge SDCL 12-5-1; however, any challenge to SB 69 is not ripe
until after the November general election. Additionally, this court will not transfer
this litigation to the District of South Dakota, Central Division. Accordingly, it is
ORDERED that plaintiffs’ motion to amend their complaint (Docket 12) is
granted. Plaintiffs may amend their complaint to challenge the current version of
SDCL 12-5-1.
IT IS FURTHER ORDERED that defendants’ motion to dismiss and
alternative motion to change venue (Docket 8) is granted in part and denied in
7
Id. (citing Steward Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).
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part. Plaintiffs may not challenge SB 69 at this time. Venue will not be transferred
from the District of South Dakota, Southern Division.
Dated this 26th day of January 2016.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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