Poor Bear et al v. The County of Jackson et al

Filing 92

MEMORANDUM OPINION ORDER granting 45 Motion to Dismiss; denying as moot 56 Motion for Summary Judgment; denying as moot 72 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 6/17/2016. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
THOMAS POOR BEAR, DON DOYLE,
CHERYL D. BETTELYOUN, and
JAMES RED WILLOW,

5:14-CV-05059-KES

Plaintiffs,
vs.
THE COUNTY OF JACKSON, a political
subdivision and public corporation
organized under the laws of the state of
South Dakota;
THE BOARD OF COMMISSIONERS FOR
THE COUNTY OF JACKSON, a political
subdivision and public corporation
organized under the laws of the state of
South Dakota;
VICKI WILSON, in her official capacity as
Jackson County Auditor;
GLEN BENNETT, in his official capacity
as Jackson County Commissioner;
LARRY DENKE, in his official capacity as
Jackson County Commissioner;
LARRY JOHNSTON, in his official
capacity as Jackson County
Commissioner;
JIM STILLWELL, in his official capacity
as Jackson County Commissioner; and
RON TWISS, in his official capacity as
Jackson County Commissioner,

MEMORANDUM OPINION
AND ORDER GRANTING
MOTION TO DISMISS

Defendants.
Plaintiffs seek injunctive and declaratory relief that will require
defendants to establish a satellite office for voter registration and in-person
absentee voting in the town of Wanblee on the Pine Ridge Indian Reservation.

Docket 1. Defendants move to dismiss the complaint on grounds of ripeness.
Docket 45. For the following reasons, the motion to dismiss is granted.
BACKGROUND
Plaintiffs are enrolled members of the Oglala Sioux Tribe who reside on
the Pine Ridge Indian Reservation in Jackson County, South Dakota.
Defendants are entities and individuals responsible for managing elections in
Jackson County. All individual defendants are named as defendants in their
official capacities.
The Pine Ridge Indian Reservation, located in southwestern South
Dakota, encompasses the southern half of Jackson County. Wanblee is the
most populous city in the portion of Jackson County that is located on the Pine
Ridge Reservation. Wanblee is located roughly 27 miles from Kadoka, the
county seat of Jackson County. Approximately 90 percent of Wanblee’s
population is Native American.
Plaintiffs filed this action on September 18, 2014. The complaint alleges
that the defendants violated both the Voting Rights Act and the Fourteenth
Amendment by providing an in-person voter registration and in-person
absentee voting office in Kadoka, but not in Wanblee. Plaintiffs seek to
establish a permanent satellite office in Wanblee for in-person registration and
in-person absentee voting. Plaintiffs also seek an order mandating that
Jackson County obtain preclearance from the United States Attorney General
for any future changes to election procedures that would remove the satellite
office.
2

On October 10, 2014, plaintiffs moved for a preliminary injunction,
which sought to require Jackson County to establish a satellite office in
Wanblee for the time period leading up to the general election on November 4,
2014. On October 15, 2014, the parties participated in a settlement conference
before United States Magistrate Judge Veronica Duffy. After the settlement
conference, Jackson County agreed to fund a satellite office for the remaining
time period leading up to the 2014 general election.
On November 13, 2015, the Jackson County Commission formed an
agreement with the South Dakota Secretary of State’s Office (SDSOS), and it
passed Resolutions #2015-15 and #2015-16. The agreement established that
SDSOS will provide funds necessary to operate a satellite office in Wanblee
during all federal primary and general elections through January 1, 2023. The
agreement provides that SDSOS will “reimburse Jackson County, from the
State’s state-held HAVA 1 account, various amounts needed as shown by
appropriate reimbursement forms and applicable receipts, up to the amount of
sixty-one thousand, six hundred eighty-four dollars ($61,684) 2 to be used for
an in-person absentee satellite voting site in accordance with the State HAVA
plan[.]” Docket 47-10 at 3. The Jackson County Commission adopted the terms
of the agreement with SDSOS in Resolution #2015-15. Docket 47-11.
The Help America Vote Act was enacted to establish minimum election
administration standards and to improve accessibility and quantity of polling
places. Help America Vote Act of 2002, Pub. L. No. 107-252, § 101, 116 Stat.
1666 (2002).
2 Jackson County Auditor, Vicki Wilson, estimates that the cost to fund a
satellite office in Wanblee is $7,710.50 per election. Because each election year
consists of a primary and general election, $61,684 is needed to sufficiently
fund the office through January 1, 2023.
1

3

Resolution #2015-16 established that Jackson County shall fund a satellite
office in Wanblee from 9 a.m. to 5 p.m., during week days, for the statutory
absentee voting period leading up to primary and general elections for the
election years of 2016, 2018, 2020, and 2022. 3 Docket 47-12. With funding in
place for the satellite office, defendants move to dismiss the complaint on
grounds of ripeness. Docket 45.
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. Fed. R. Civ. P. 12(b)(1);
Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). 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 the factual deficiencies of
the claims. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing 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 citations omitted).

A voter may vote by absentee ballot beginning 46 days prior to an election.
SDCL 12-19-1; 12-19-12.
3

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Plaintiffs carry the burden of establishing 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 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. Thus, the
existence of disputed material facts does not prevent the trial court from
analyzing the merits of the jurisdictional claims, and no presumption of
truthfulness must attach to the facts alleged in the complaint. Id.
DISCUSSION
Defendants claim that sufficient funding for the satellite office is secure
through 2022. Therefore, defendants argue that the case is not ripe for review
because it does not pose a purely legal issue and the development of additional
facts will aid judicial review. Defendants also claim that potential harm
stemming from delayed review is speculative and uncertain to occur.
Plaintiffs respond that the agreement between Jackson County and
SDSOS does not resolve all the future satellite office issues because it fails to
address local elections that occur during non-federal elections. Plaintiffs also
argue that the Jackson County Commission is not bound by the agreement
because funding from SDSOS is not guaranteed. Finally, plaintiffs submit that
defendants’ “voluntary cessation” of the challenged conduct does not deprive
the court of its power to adjudicate this dispute.

5

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[.]’ ” Gray v. City of Valley Park, Mo., 567 F.3d 976, 983
(8th Cir. 2009) (quoting McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208,
1210 (8th Cir. 1992)). “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.” Texas v. United States, 523 U.S. 296, 300 (1998) (citations and
quotations omitted). 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 Dist. No. 10 of Cass Cty., Mo. v. City of
Peculiar, Mo., 345 F.3d 570, 572-73 (8th Cir. 2003).
A.

Fitness of the Issues.

“The fitness for judicial decision inquiry goes to a court’s ability to visit
an issue.” Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032,
1037 (8th Cir. 2000) (quotations omitted). “Whether a case is ‘fit’ depends on
whether it would benefit from further factual development[,]” Pub. Water Supply
Dist. No. 10, 345 F.3d at 573, and “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 and Van Dyke Assocs., Inc., 266 F.3d 838,
840) (8th Cir. 2001) (stating that the ripeness doctrine seeks to prevent courts
from becoming entangled in abstract disagreements)). “The case is more likely
to be ripe if it poses a purely legal question and is not contingent on future
possibilities.” Pub. Water Supply Dist. No. 10, 345 F.3d at 573.
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The court finds that this case will benefit from further factual
development because it depends on multiple contingencies. As an initial
matter, the court notes the similarity between the dispute here and the dispute
in Brooks v. Gant, 2013 WL 4017036 (D.S.D. Aug. 6, 2013). Both disputes
address the lack of funding for satellite voting offices on the Pine Ridge Indian
Reservation. See Id. at *1. Both disputes also resulted in agreements between
the county and SDSOS that provide funding for the satellite voting offices for
years to come. See Id. at *2. Aside from the dollar amounts required to fund the
satellite offices, the terms of the agreements are virtually identical.
In Brooks, the court found that the case would benefit from additional
factual development because the dispute stemmed from funding issues that
may not come to fruition and facts that were subject to considerable change.
Id. at *4. The same rationale applies here as well. With funding in place
through 2022, any potential funding shortfall is a “contingent future event[]
that may not occur as anticipated, or indeed may not occur at all.” See Texas v.
United States, 523 U.S. at 300; see also Vogel, 266 F.3d at 840 (stating that the
ripeness doctrine seeks to prevent judicial review of abstract disagreements).
Plaintiffs argue that Brooks is inapposite here because the Brooks
plaintiffs failed to identify that non-federal elections are not contemplated in
the agreement between the county and SDSOS. Specifically, plaintiffs assert
that school board elections and special elections are both examples of nonfederal elections that will occur without funding for a satellite office in
Wanblee. But school board elections are not administered by Jackson County;
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they are administered by the Kadoka Area School District, which is not a
named defendant in this action. See SDCL 13-7-10 (stating that the school
board shall select the date of the election); 13-7-11 (“The number and place of
voting precincts shall be determined by the school board”). Additionally,
plaintiffs have not identified any special election that is certain to occur before
2023, and special “federal” elections are covered by the terms of the agreement.
With the agreement between Jackson County and SDSOS in place, facts
obtained from implementation of the agreement will clarify any future disputes
associated with sufficient funding for the satellite office. Thus, the fitness prong
weighs in favor of finding the claims are unripe for judicial review.
B.

Hardship Stemming from Delay.

“Regarding the ‘hardship’ prong, ‘[a]bstract 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 Dist. No. 10, 345 F.3d at 573 (alterations in
original) (quoting O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (internal
quotations and citations omitted)). “The plaintiffs need not wait until the
threatened injury occurs, but the injury must be ‘certainly impending.’ ” Id.
(quoting Paraquad, Inc. v. St. Louis Hous. Auth., 259 F.3d 956, 958-59 (8th Cir.
2001)).
The court finds that any harm to the plaintiffs potentially resulting from
delayed review is uncertain to occur. Plaintiffs’ brief establishes as much:
“Jackson County can rescind the resolution to provide a satellite office for in8

person registration and in-person absentee voting in the event HAVA funding is
unavailable to reimburse the county for the expenses of maintaining the office.”
Docket 51 at 20 (emphasis added). While a possibility exists that SDSOS HAVA
funding might be insufficient in the future, there is no current funding
shortfall. SDSOS has committed to reimburse Jackson County up to $61,684
from the SDSOS HAVA fund that currently holds approximately $6,500,000.
See Docket 52-10 at 6. Plaintiffs merely speculate that funding will be
inadequate in the future. Such speculation is insufficient grounds for
establishing that harm will result from delayed judicial review. See Pub. Water
Supply Dist. No. 10, 345 F.3d at 573. Thus, plaintiffs have failed to meet their
burden of establishing that they will suffer concrete harm as a result of delayed
review of this case.
C.

Voluntary Cessation and Mootness.

As to plaintiffs’ argument pertaining to voluntary cessation, the court
finds such analysis unpersuasive. Precedent cited by plaintiffs establishes that
voluntary cessation is a relevant consideration when a mootness defense is
asserted. See Docket 51 at 13 (citing City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 288-89 (1982) (reviewing whether voluntary cessation rendered
claims moot); Ctr. for Special Needs Trust Admin., Inc. v. Olson, 676 F.3d 688,
697 (8th Cir. 2012) (“The test for mootness is stringent. Mere voluntary
cessation of allegedly illegal conduct does not moot a case; otherwise, the
courts would be compelled to leave ‘[t]he defendant . . . free to return to his old
ways.’ ”) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953))).
9

But the doctrines of mootness and ripeness employ distinct analyses.
Where a case may be dismissed as moot if it “no longer presents a live case or
controversy,” Minn. Humane Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir. 1999),
the ripeness doctrine seeks to prevent premature judicial review of issues that
may not come to fruition. See Paraquad, Inc., 259 F.3d at 958; see also
13B Charles Alan Wright et al., Federal Practice and Procedure § 3532.1 (“As
compared to mootness, 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.”).
Because voluntary cessation analysis contemplates prior conduct, it can only
apply to mootness analysis. Thus, plaintiffs’ argument pertaining to
defendants’ voluntary cessation does not provide a basis for finding plaintiffs’
claims ripe for judicial review.
CONCLUSION
Plaintiffs bear the burden of establishing that the court has subject
matter jurisdiction over this action. In response to the motion to dismiss on
grounds of ripeness, plaintiffs failed to meet their burden of establishing that
the record is sufficiently developed and that they will suffer a concrete harm
stemming from delayed judicial review. Because the court finds that this case
is not ripe for judicial review, it is
ORDERED that the motion to dismiss (Docket 45) is GRANTED, and the
complaint is dismissed without prejudice.
IT IS FURTHER ORDERED that plaintiffs’ motion for summary judgment
(Docket 56) is DENIED as moot.
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IT IS FURTHER ORDERED that defendants’ motion for summary
judgment (Docket 72) is DENIED as moot.
Dated June 17, 2016.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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