Dakotans for Health v. Anderson

677 F.Supp.3d 977

DAKOTANS FOR HEALTH, Rick Weiland, Adam Weiland, Plaintiffs, v. Leah ANDERSON, Minnehaha County Auditor,Sued in Her Official Capacity; Jean Bender,Minnehaha County Commissioner, Sued in Their Official Capacity;Dean Karsky, Minnehaha County Commissioner,Sued in Their Official Capacity; Gerald Beninga,Minnehaha County Commissioner,Sued in Their Official Capacity; Jen Bleyenberg,Minnehaha County Commissioner, Sued in Their Official Capacity;and Joe Kippley, Minnehaha County Commissioner,Sued in Their Official Capacity; Defendants.

4:23-CV-04075-RAL

United States District Court, D. South Dakota, Southern Division

Signed June 13, 2023

James D. Leach, Attorney at Law, Rapid City, SD, for Plaintiffs.

Alex M. Hagen, Claire E. Wilka, William C. Garry, Cadwell Sanford Deibert & Garry, LLP, Sioux Falls, SD, for Defendants.

OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION

ROBERTO A. LANGE, CHIEF JUDGE

I. Procedural History

On May 10, 2023, Plaintiffs Dakotans for Health, Rick Weiland, and Adam Weiland (Plaintiffs) filed a Complaint naming in their official capacities Defendants Minnehaha County Auditor Leah Anderson and Minnehaha County Commissioners Jean Bender, Dean Karsky, Gerald Beninga, Jen Bleyenberg, and Joe Kippley (Defendants). Plaintiff Dakotans for Health is a South Dakota ballot question committee, Plaintiff Rick Weiland is its chair, and Plaintiff Adam Weiland works for the entity and helps manage it. Doc. 1 ¶¶ 1-3; Doc. 4 ¶¶ 1-3. Dakotans for Health successfully obtained signatures to put Medicaid expansion on the 2022 South Dakota ballot and have drafted and are circulating petitions to place on the November 2024 South Dakota ballot, as they put it, "measures that would allow the people of South Dakota to choose to restore their Roe v. Wade rights, and to eliminate the state sales tax on food." Doc. 1 ¶ 10; Doc. 4 ¶ 4. Defendants are the current Auditor and Commissioners of Minnehaha County who were involved in adopting a "LIMITED PUBLIC USE POLICY" on May 2, 2023, that, among other things, requires petition circulators to "check-in" with the Auditor and restricts petition circulators to "designated areas" apart from the entrances to the Minnehaha County government buildings.

The Complaint seeks a temporary restraining order, preliminary and permanent injunctive relief, attorney's fees and costs, and invokes federal jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. §§ 1983 and 1988. The Complaint pleads three causes of action: (1) "Prohibition of Core Political Speech" by Defendants' new policy adopted May 2, 2023, restricting petition circulation to two rectangular areas removed from public entries to the Minnehaha County Courthouse (Courthouse) and Minnehaha County Administration Building (Administration Building) and directing that those opposing the petitions share the same two spaces; (2) "Vague and Standardless Regulation and Prior Restraint of Core Political Speech" by the new policy requiring that any person circulating a petition "must check-in at the Minnehaha County Auditor's office prior to conducting any Political Activity on the Minnehaha County campus to permit the placement of safety markers and to verify space availability within the Designated Areas," with no other standards or rules for how the Auditor is to exercise that discretion; and (3) "Unconstitutional Preregistration of Speakers" which assumes that the new preregistration requirement would include disclosure of name, address, date of birth, telephone number, and email address with such information being publicly available.¹ Doc. 1. Plaintiffs' filings included a Motion for Temporary Restraining Order, Doc. 3; Declarations of Plaintiff Rick Weiland and Cory Heidelberger, Docs. 4, 5; and a Memorandum in Support of the Motion for Temporary Restraining Order, Doc. 6.

On May 11, 2023, this Court entered an Opinion and Temporary Restraining Order, Doc. 10, effectively enjoining two aspects of Defendants' new LIMITED PUBLIC USE POLICY adopted on May 2. The Temporary Restraining Order blocked enforcement of the provision requiring preregistration of petition circulators with the County Auditor and all provisions restricting petition circulators to the two rectangular "designated areas" removed from main entries into the Administration Building and the Courthouse. Doc. 10 at 12. Although the temporary restraining order did not touch certain other aspects of the new county policy, the effect of the Temporary Restraining Order was to preserve a status quo that had existed before May 2, 2023, regarding petition circulator activity on the Minnehaha County campus.

The parties cooperated with this Court to set an evidentiary hearing for Friday, May 26, 2023. In the days leading up to the evidentiary hearing, Defendants filed their Memorandum of Law in Opposition to Plaintiffs Motion, Doc. 23; and Declarations of Melinda Storley, Leah Anderson, Craig Olson, Daniel Fritz, Alex Hagen, and Kim Colwill, Docs. 24, 25, 26, 27, 28, 30, 32; after which Plaintiffs filed a Reply Memorandum, Doc. 35, and a Declaration of James D. Leach, Doc. 36.

At the beginning of the evidentiary hearing on May 26, this Court noted that by its terms, the Temporary Restraining Order had expired at 4:38 p.m. on the prior afternoon, May 25. Plaintiffs presented testimony from Cory Heidelberger, Plaintiff Adam Weiland, Lloyd Ringrose, and Plaintiff Rick Weiland. Defendants presented testimony from four Minnehaha County employees: Kimberly Colwill, Rebecca Carpenter, Melinda Storley, and Defendant Leah Anderson. Both sides introduced various exhibits. The evidentiary hearing on the preliminary injunction request consumed most of the day. At the end of the hearing, this Court questioned whether a Temporary Restraining Order under Rule 65(b) of the Federal Rules of Civil Procedure could be renewed after both sides had been heard and contemplated working over Memorial Day weekend to issue a ruling on Tuesday, May 30, 2023. This Court did not want to be too hasty with its decision on the motion for preliminary injunction, wanted to view in person the Minnehaha County campus to ensure a proper mental picture of the relevant areas before finalizing a ruling, and had concluded that a one-time renewal of a temporary restraining order may occur even when both parties have appeared and been heard. Thus, on May 30, 2023, this Court issued an Opinion Renewing Temporary Restraining Order Pending Decision on Preliminary Injunction and Notifying Parties of Intended Court View. Doc. 42. Neither side objected to this Court conducting a court view of the Minnehaha County campus and this Court has done so.² For the reasons explained below, this Court now grants in part Plaintiffs' motion for a preliminary injunction.

II. Facts

This case concerns petition circulation principally outside the west entrance to the Administration Building. Though the new LIMITED PUBLIC USE POLICY restricts political activity generally on the Minnehaha County campus, both petition circulators' activity and Defendants' reasons for changing their policy focus on or near the west entrance to the Administration Building.

Minnehaha County is the most populous county in South Dakota³ containing most of the population of the state's largest city, Sioux Falls. The Administration Building houses county offices, links to the Courthouse, and is adjacent to the Public Safety Building housing the Sheriff and Minnehaha County Jail. Minnehaha County residents enter the building to transact business with the county, including, among many other things, registering to vote and voting absentee; obtaining or transferring title to such things as a vehicle, motorcycle, or boat; paying property taxes; obtaining a marriage license or death certificate; and (at least for those conditioned to parking in the largest parking lot) to visit the courthouse for jury duty or other court business. When the Administration Building is open for business, there is a steady flow of people in and out of the west entrance.

Members of the public typically enter the Administration Building through the west entrance. To the west of the Administration Building is a free-of-charge parking lot, large enough to accommodate about 170 vehicles, with access points off Minnesota Avenue and West 6^th Street. Hr'g Ex. 4. The Administration Building is long and lean and arcs with its longer side facing west. Hr'g Exs. 4, 5, 5A, 5B. There are sidewalks adjacent to streets nearer to the south and east sides of the Administration Building and separate entrances on those sides. Across the street to the south is a lot used for employee parking while to the east there are ten metered parking spots, one handicap-accessible spot, and ten spots reserved for law enforcement. Further northeast there are four metered spots and seven parking spots, quite a ways from the Administration Building. Another parking lot with 32 spots is across 5^th Street to the east, near the Old Courthouse Museum and Equalization Office Building.

On the County campus, the public most commonly uses the sidewalk that arcs along the west side of the Administration Building, separating the parking lot from the building itself. This sidewalk links to the sidewalk along 6^th Street, with the sidewalk actually widening subtly from at or just under five feet to a six-foot sidewalk along the west side of the Administration Building. The space between the west side of the building and the sidewalk is a little less than three-and-a-half feet and is landscaped with small rocks. This sidewalk is six-feet wide with a six-to-seven-inch curb attached, but vehicles can and do park perpendicular to this sidewalk with front bumpers sometimes overlapping the curb and part of the sidewalk. See Hr'g Ex. 4. Along the sidewalk outside the west entrance are 30 parking spots, with one spot for law enforcement and nine for handicap-accessible parking or wheelchair vehicle parking. Beyond those parking spots outside...