Brooks et al v. Gant et al

Filing 159

MEMORANDUM OPINION AND ORDER denying as moot 91 Motion for Summary Judgment; denying as moot 96 Motion for Summary Judgment; denying as moot 97 Motion for Summary Judgment; denying as moot 100 Motion for Summary Judgment; denying as moot 113 Motion to Strike ; granting 118 Motion to Dismiss without prejudice; denying as moot 140 Motion to Exclude; denying as moot 147 Motion in Limine; denying as moot 152 Motion for Joinder. Signed by U.S. District Judge Karen E. Schreier on 8/6/13. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHRIS BROOKS,
FRANCIS RENCOUNTRE,
GLORIA RED EAGLE,
SHARON CONDEN,
JACQUELINE GARNIER,
JENNIFER RED OWL,
EDWINA WESTON,
MICHELLE WESTON,
MONETTE TWO EAGLE,
MARK A. MESTETH,
STACY TWO LANCE,
HARRY BROWN,
ELEANOR WESTON,
DAWN BLACK BULL,
CLARICE MESTETH,
DONOVAN L. STEELE,
EILEEN JANIS,
LEONA LITTLE HAWK,
EVAN RENCOUNTRE,
CECIL LITTLE HAWK, SR.,
LINDA RED CLOUD,
LORETTA LITTLE HAWK,
FAITH TWO EAGLE,
EDMOND MESTETH, and
ELMER KILLS BACK, JR.,
Plaintiffs,
vs.
JASON GANT, in his official capacity as
South Dakota Secretary of State,
SHANNON COUNTY, SOUTH DAKOTA,
FALL RIVER COUNTY, SOUTH DAKOTA,
SHANNON COUNTY BOARD OF
COMMISSIONERS,
FALL RIVER COUNTY BOARD OF
COMMISSIONERS,
JOE FALKENBUERG, in his official
capacity as a member of the County Board
of Commissioners for Fall River County,
South Dakota,
ANNE CASSENS, in her official capacity as
a member of the County Board of
Commissioners for Fall River County,
South Dakota,
MICHAEL P. ORTNER, in his official
capacity as a member of the County Board

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CIV. 12-5003-KES

MEMORANDUM OPINION AND
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS WITHOUT
PREJUDICE

of Commissioners for Fall River County,
)
South Dakota,
)
DEB RUSSELL, in her official capacity as a )
member of the County Board of
)
Commissioners for Fall River County,
)
South Dakota,
)
JOE ALLEN, in his official capacity as a
)
member of the County Board of
)
Commissioners for Fall River County,
)
South Dakota,
)
BRYAN J. KEHN, in his official capacity as a )
member of the County Board of
)
Commissioners for Shannon
)
County, South Dakota,
)
DELORIS HAGMAN, in her official capacity )
as a member of the County Board of
)
Commissioners for Shannon
)
County, South Dakota,
)
EUGENIO B. WHITE HAWK, in his official
)
capacity as a member of the County Board of )
Commissioners for Shannon County, South )
Dakota,
)
WENDELL YELLOW BULL, in his official
)
capacity as a member of the County Board of )
Commissioners for Shannon County, South )
Dakota,
)
LYLA HUTCHISON, in her official capacity as )
a member of the County Board of
)
Commissioners for Shannon
)
County, South Dakota,
)
SUE GANJE, in her official capacity as the )
County Auditor for Shannon and Fall River )
Counties, and
)
JAMES SWORD, in his official
)
capacity as Attorney for Shannon and Fall )
River Counties,
)
)
Defendants.
)

Plaintiffs brought this cause of action seeking declaratory relief and for a
temporary and permanent injunction that would require defendants to provide
the full period of statutorily authorized early voting within Shannon County.
Docket 1. All defendants move to dismiss plaintiffs’ complaint based on
ripeness grounds because plaintiffs’ alleged harm is not certain or imminent,

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and thus, defendants argue the court does not have subject matter jurisdiction
to adjudicate the cause of action. Docket 118. Plaintiffs contest the motion and
assert that the action is ripe because their harm is certain to occur again.
Docket 129. The parties also cross move for summary judgment, move to strike
expert reports, and move in limine to prevent these experts from testifying at
trial. For all the reasons discussed below, the motion to dismiss is granted. All
other motions are denied as moot.
BACKGROUND
Plaintiffs are enrolled members of the Oglala Sioux Tribe who reside in
Shannon County and are registered to vote. Defendants are the entities or
people responsible for conducting voting in Shannon County and Fall River
County or who have a role related to voting in South Dakota. Shannon County
is entirely within the boundaries of the Pine Ridge Indian Reservation. Due to
the makeup of the population of Shannon County, it lacks the funds to provide
certain services, features, and benefits that are typically provided to residents
by the county in which they live. Thus, Shannon County must contract with an
adjacent county to provide these services to its residents. Historically, Shannon
County has contracted with Fall River County to provide election services.
SDCL 12-16-1 was amended in 2011 by the South Dakota Legislature to
provide as follows: “Absentee voting shall begin no earlier and no later than
forty-six days prior to the election.” What is called early voting for the purpose
of this lawsuit is more accurately described as absentee voting that is done in
person. Most voters in South Dakota can exercise their right to vote prior to
election day in the 46 days prior to election day at their county courthouse.

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Because Shannon County does not have a courthouse within the county, its
registered voters must vote early in person at the Fall River County courthouse
in Hot Springs, South Dakota. Prior to the 2012 election cycle, access to early
voting at a location within the borders of Shannon County was minimal. Before
this lawsuit was filed, the Shannon County Board of Commissioners planned to
offer only six days of early voting at a location within Shannon County. Any
other early voting by Shannon County voters had to be done in Fall River
County.
Plaintiffs brought this claim on January 13, 2012, because plaintiffs
alleged they would have to travel between 53 minutes and 2 hours and 45
minutes from locations in Shannon County to Hot Springs, which is the county
seat of Fall River County, to exercise their right to vote. Plaintiffs claimed that
this burden upon their right to vote violated the Voting Rights Act, the Indian
Citizenship Act, their right to equal protection of the law, and the South Dakota
Constitution. Plaintiffs asked the court to grant a preliminary injunction that
would force Shannon County to provide early voting for the full statutory period
of 46 days at a location within the borders of Shannon County. Plaintiffs also
requested permanent injunctive relief and a declaratory judgment proclaiming
that defendants’ conduct violated both the law and plaintiffs’ rights.
Prior to the court’s hearing on plaintiffs’ motion for a preliminary
injunction, defendants attempted to voluntarily abide by plaintiffs’ request to
provide the full 46 days of early voting in Shannon County for the primary and
general elections in 2012. This decision was made in part due to the Secretary
of State Jason Gant’s commitment to provide an additional $12,000 through

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Help America Vote Act (HAVA) funds, which would reimburse Shannon County
for the 8-hour-per-day wages for the early voting election workers from Fall
River County who would operate the voting station in Shannon County.
Because of this voluntary conduct, defendants filed a joint motion to dismiss
plaintiffs’ motion for preliminary relief on March 6, 2012, claiming the motion
was moot because the requested relief had been given. Docket 55.
On March 8, 2012, the court heard evidence and oral argument on the
pending motions. Docket 64. Following the hearing, the court granted
defendants’ motion to dismiss plaintiffs’ request for preliminary relief and
denied as moot plaintiffs’ motion for a preliminary injunction. Docket 66;
Brooks v. Gant, Civ. No. 12-5003, 2012 WL 871262 (D.S.D. Mar. 14, 2012).
Plaintiffs’ motion for a permanent injunction and request for declaratory relief
continued, and the parties began discovery.
In the interim, defendants voluntarily agreed to provide early voting
beyond the 2012 voting cycle within Shannon County. On August 3, 2012,
Shannon County and Secretary of State Gant entered into a Memorandum of
Agreement (the agreement) whereby Secretary of State Gant agreed to release
additional HAVA funds to Shannon County to allow the county to provide staff
for early voting at a location within Shannon County through January of 2019.
Docket 79-1. On that same day, Shannon County passed two resolutions. The
first, Resolution 2012-10, resolved for Shannon County to enter into the
agreement. Docket 79-2. The second, Resolution 2012-11, acknowledged that
Shannon County agreed to provide in-person, absentee voting at a satellite
office in Shannon County for the full 46 days of early voting. The county also

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agreed to provide notice of such voting rights to the public through 2018.
Docket 79-3.
The agreement commenced on August 3, 2012, and it continues through
January 1, 2019. The agreement provides that it:
is intended to assist Shannon County in funding federal elections,
including absentee voting, in accordance with state and federal law
and in compliance with and authorized by the State HAVA plan in
effect and as amended from time to time and the Help America
Vote Act of 2002 . . . as directed by the Secretary of State.
Docket 79-1 at 3. It is undisputed that the Secretary of State would transfer up
to $111,000 to Shannon County, which would bring its total HAVA account
balance to $179,910.78. It is undisputed that this amount generally is
sufficient to fund the four election cycles of 2012, 2014, 2016, and 2018.
On August 10, 2012, defendants moved to dismiss plaintiffs’ request for
permanent injunctive and declaratory relief. Docket 77. Defendants contended
plaintiffs’ claims were moot based on defendants’ voluntary cessation of the
contested conduct. The court denied defendants’ motion and concluded
because the voting agreements and funding only extended through the 2018
voting cycle, plaintiffs’ harm was likely to recur. Docket 106. Secretary of State
Gant also moved to dismiss himself as a party based on arguments of standing,
sovereign immunity, and other claims. The court denied the motion. Docket 95.
Now defendants move to dismiss based on a different Article III
analysis—ripeness—because they claim that plaintiffs’ proposed harm is too
uncertain or distant for the court to maintain its subject matter jurisdiction.

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STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) provides that a court may
dismiss an action for lack of subject matter jurisdiction. It is a rule “ ‘rooted in
the unique nature of the jurisdictional question.’ ” Osborn v. United States, 918
F.2d 724, 729 (8th Cir. 1990) (quoting Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir. 1981)). Under a motion to dismiss based on lack of subject matter
jurisdiction, the defendant may challenge either the plaintiff’s complaint on its
face or based on the factual truthfulness of the claims. Titus v. Sullivan, 4 F.3d
590, 593 (8th Cir. 1993); Osborn, 918 F.2d at 729 n.6. A motion to dismiss
based on lack of subject matter jurisdiction can be raised at any time under
Federal Rule of Civil Procedure 12(h)(3). And if at any time the court concludes
that “it lacks subject-matter jurisdiction, the court must dismiss the action.”
Fed. R. Civ. P. 12(h)(3). “Ripeness is peculiarly a question of timing and is
governed by the situation at the time of review, rather than the situation at the
time of the events under review.” Iowa League of Cities v. E.P.A., 711 F.3d 844,
867 (8th Cir. 2013) (quotations and citation omitted).
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). Under a 12(b)(1) motion “the trial court may proceed as it
never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual
12(b)(1) motion is the trial court’s jurisdiction–its very power to hear the
case–there is substantial authority that the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power to hear the case.”
Osborn, 918 F.2d at 730. Accordingly, the existence of disputed material facts

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does not prevent the trial court from analyzing the merits of the jurisdictional
claims, and no presumptive truthfulness must attach to the facts alleged in the
complaint. Id.
DISCUSSION
Defendants argue that dismissal is required because there is no case or
controversy that is ripe for the court to adjudicate when any potential injury to
plaintiffs is speculative, uncertain, and not imminent. Plaintiffs respond that
although plans have been made to ensure that early voting occurs in Shannon
County through the 2018 election cycle, there is no guarantee that early voting
will be offered after that election year, thus their harm is certain to occur and
the injury would be severe as it infringes upon their right to vote.
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 or
under the statutes that are duly enacted by Congress. Gray v. City of Valley
Park, Mo., 567 F.3d 976, 982-83 (8th Cir. 2009) (citations omitted). 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 Cnty. 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, and standing. Id.

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Ripeness is an issue of subject matter jurisdiction. Dakota, Minn. & E.
R.R. Corp. v. South Dakota, 362 F.3d 512, 520 (8th Cir. 2004) (citation omitted).
The Eighth Circuit Court of Appeals has stated the basic rationale behind the
ripeness doctrine “ ‘is to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements.’ ” Pub.
Water Supply Dist. No. 10 v. City of Peculiar, Mo., 345 F.3d 570, 572-73 (8th Cir.
2003) (quoting Abbott Labs v. Gardner, 367 U.S. 136, 148 (1967)). Courts also
must ask if “a dispute has yet matured to a point that warrants decision[,]”
because “[t]he central concern is whether the case involves uncertain or
contingent future events that may not occur as anticipated, or indeed may not
occur at all.” 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 3532 at 365 (3d. ed. 2008) (hereafter Wright &
Miller). Thus, the ripeness test involves an analysis of both “ ‘the fitness of the
issues for judicial decision and the hardship to the parties of withholding court
consideration.’ ” Pub. Water Supply, 345 F.3d at 572-73. The party seeking to
invoke jurisdiction must satisfy each prong to a minimal degree. Id. (citation
omitted).
A.

Fitness

This prong of the ripeness determination analyzes the court’s ability to
visit a specific issue. Pub. Water Supply, 345 F.3d at 573. Typically, whether a
case is fit for review depends on if the case would benefit from additional
factual development. Id. (citations omitted). “The case is more likely to be ripe if
it poses a purely legal question and is not contingent on future possibilities.”
Id. (citation omitted).

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As the court noted in a prior order related to mootness, the future is
uncertain for voters in Shannon County following the 2018 election cycle. Even
so, this is the type of case that would benefit from the development of
additional facts because the landscape of both the facts and the law are subject
to immense change. It is impossible for the court to address the alleged harm
now when the court is unsure as to what election laws will be in place in 2020,
what funding will be available for early voting and from what sources, whether
permanent donated space will be available in the new Pine Ridge Justice
Center to house in-person voting, whether Shannon County will change its
home rule charter to appoint or elect its own auditor, whether Shannon County
will be contracting with Fall River County for essential services related to
voting, and the future makeup of the Board of Commissioners for both
Shannon County and Fall River County. The court can neither proceed based
solely on defendants’ past wrongs nor guess at the state of affairs as they will
exist in 2019 and beyond. For the court to adjudicate this claim now would
amount to an advisory opinion based on assumptions and speculation. See
KCCP Trust v. City of North Kansas City, 432 F.3d 897, 899 (8th Cir. 2005)
(“One kind of advisory opinion is an opinion advising what the law would be
upon a hypothetical state of facts.”).
Moreover, South Dakota voting laws have changed recently.1 South
Dakota voting laws may continue to change, which would drastically affect
both the scope of this claim and the appropriate parties to it. Other states have
1

For example, in 2003 the South Dakota Legislature added a
requirement for voters to provide photo identification before voting. SDCL 1218-6.1.
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limited absentee voting, require voting by mail only, or mandate excuserequired absentee voting. South Dakota may adopt some of these changes in
the future. The South Dakota Secretary of State will change because of term
limits, and the new Secretary of State may disburse HAVA funds more or less
generously than the current Secretary of State. Federal HAVA laws may
change. Many variables are at play here, and for the court to attempt to guess
at not only the factual changes that may occur but also the minds of the South
Dakota Legislature and other elected officials is an insurmountable task at this
stage of the litigation. See 13B Wright & Miller § 3532.3 at 494 (“The need for
more precise development to frame constitutional issues may arise with respect
to state law as well as to facts.”). Plaintiffs have not met their burden to
establish that the issue is currently fit for judicial decision.
B.

Hardship to the Parties

The hardship to the parties prong is equally unavailing to persuade the
court that subject matter jurisdiction exists here. To determine hardship to the
parties “abstract injury is not enough. It must be alleged that the plaintiff has
sustained or is immediately in danger of sustaining some direct injury as the
result of the challenged statute or official conduct.” Pub. Water Supply, 345
F.3d at 573 (quotations and citations omitted). This hardship factor assesses
the potential harm suffered, either financial or due to uncertainty-induced
behavior in the absence of adjudication. Id. Plaintiffs do not have to wait until
the injury occurs, but the injury should be certainly impending. Iowa League of
Cities v. E.P.A., 711 F.3d 844, 867 (8th Cir. 2013). The court considers both the
size of the alleged harm and its immediacy when determining hardship. Id.

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Plaintiffs argue that their harm is immediate, direct, and certain.
Plaintiffs first allege that their harm is both immediate and direct because
certain rights like voting, which are fundamental rights afforded to all citizens,
must be carefully guarded. The court agrees with this argument in theory,
because voting traditionally has been more protected2 than some rights, but
not in practice. Plaintiffs have admitted their alleged injury will not occur until
after the 2018 voting cycle concludes and HAVA funds have been exhausted.
While the eventual harm could be severe if the events unfold as plaintiffs
predict they will in 2019, the immediacy consideration is nonexistent here. See
Emp’rs Ass’n, Inc. v. United Steelworkers of Am., 32 F.3d 1297, 1299 (8th Cir.
1994) (“Ripeness is demonstrated by a showing that a live controversy exists
such that the plaintiffs will sustain immediate injury from the operation of the
challenged provisions, and that the injury would be redressed by the relief
requested.”) (emphasis added). There is no evidence that plaintiffs are
immediately in danger of sustaining injury to their voting rights, and the type
or degree of the harm does not surmount the immediacy consideration in this
case.
Plaintiffs contend that their harm is certain by citing to this court’s prior
order denying defendants’ motion to dismiss based on mootness for the
proposition that plaintiffs’ harm is certain to recur. Plaintiff did not
acknowledge, however, that the court’s tests for mootness and ripeness are
different. See 13B Wright & Miller § 3532.1 at 383 (“As compared to mootness,
2

See 13B Wright & Miller § 3532.3 at 494 (“The assessment of hardship
may be complicated, however, by the fact that some rights are more jealously
protected than others.”).
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which asks whether there is anything left for the court to do, ripeness asks
whether there yet is any need for the court to act.”). The court previously
determined that plaintiffs’ claims were not moot because “it is likely” that
HAVA funds will run out in 2019 and “plaintiffs will again be faced with the
same hurdles to early voting that existed at the start of this litigation because
Shannon County lacks the funding to permanently support early voting.”
Docket 106 at 9. Here, while there may be something left for the court to do,
the court does not yet need to act because plaintiffs’ alleged harm is not certain
to occur now or in 2019. The court previously found that harm was only likely
to recur. This is a distinction that makes a difference.
The court finds plaintiffs’ permanent injunction request is not ripe for the
aforementioned reasons. The court will not permanently enjoin conduct of state
actors when the factual record is undeveloped, state and federal law could
dramatically change, and there is not substantial proof of impending and
certain harm. Declaratory relief is equally unripe at this time because the
Declaratory Judgment Act does not provide a vehicle to skirt issues of ripeness
and this claim has not met the requirements set by Article III. See Pub. Water
Supply, 345 F.3d at 572 (“The Declaratory Judgment Act did not extend federal
court jurisdiction beyond the recognized boundaries of justiciability, but only
‘enlarged the range of remedies available.’ ”).
It is plaintiffs’ burden to provide facts that satisfy the court that it has
the necessary subject matter jurisdiction to adjudicate the case before it.
Plaintiffs fail to carry their jurisdictional burden by establishing that their

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claim is fit for adjudication and that they will suffer substantial hardship
through injury that is imminent, direct, and certain. Dismissal is appropriate.
CONCLUSION
At this time plaintiffs’ alleged injuries are too speculative for the court to
make a judicial determination on the merits. Therefore, the issues are not ripe
for adjudication, and the court does not have subject matter jurisdiction to
continue. Accordingly, it is
ORDERED that defendants’ motion to dismiss without prejudice (Docket
118) is granted.
IT IS FURTHER ORDERED that plaintiffs’ motion for summary judgment
(Docket 91) is denied as moot.
IT IS FURTHER ORDERED that defendant Secretary of State Gant’s
motion for summary judgment (Docket 96) is denied as moot.
IT IS FURTHER ORDERED that Fall River County defendants’ motion for
summary judgment (Docket 97) is denied as moot.
IT IS FURTHER ORDERED that defendants’ motion for summary
judgment (Docket 100) is denied as moot.
IT IS FURTHER ORDERED that defendants’ motion to strike plaintiffs’
statement of undisputed material facts (Docket 113) is denied as moot.
IT IS FURTHER ORDERED that plaintiffs’ motion to strike defendants’
expert report and motion to exclude the testimony of Dr. Thomas L. Brunell
(Docket 140) is denied as moot.

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IT IS FURTHER ORDERED that defendants’ motion in limine to preclude
the testimony and report of plaintiffs’ expert Richard Braunstein, Ph.D. (Docket
147) is denied as moot.
IT IS FURTHER ORDERED that defendant Secretary of State Gant’s
motion for joinder (Docket 152) is denied as moot.
Dated August 6, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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