South Dakota attorney general’s office accused of delaying trial
Plaintiffs in a lawsuit seeking to withdraw a proposed constitutional amendment from this year’s primary election accuse the state of intentionally delaying the case ahead of the election.
In court documents filed Wednesday, attorneys for David Owen and Jim Holbeck say the state broke the law because it will not accept service of the lawsuit, which was filed in January. Accepting service in a civil lawsuit is a procedural step once a party has been sued.
In this case, Secretary of State Steve Barnett, the state’s Chief Electoral Officer, was sued by Owen and Holbeck, who argue that Amendment C violates the state Constitution. The amendment would require any election measure that raises taxes or spends $10 million or more to be approved by 60% of the electorate.
Barnett is represented by Attorney General Jason Ravnsborg’s office. In court filings, attorneys for Owen and Holbeck advised attorneys for the Attorney General‘s office that the suit would be filed and that certified copies were being mailed.
A month later, Brendan Johnson, one of the plaintiffs’ attorneys, questioned why service had not been accepted, which under state law can be done by certified mail. Chief Deputy Attorney General Charles McGuigan responded that the office would only accept personal service and not certified mail.
Johnson replied that the law allows service by certified mail.
“In other words,” Johnson wrote, “we have already personally served the Secretary of State in his official capacity. We see no provision in the statute for the Attorney General’s office or the Secretary to refuse service as required by law.If you have a factual or legal basis for your position, please let us know today.
In his response to Johnson, McGuigan said nothing in state law requires the attorney general to admit to a service execution.
“We’ve demanded personal service in some cases for as long as I can remember, so I guess historical practice would be the basis,” McGuigan said. “To the best of my recollection, we were never questioned or challenged about this practice.”
Owen is president of the South Dakota Chamber of Commerce and Industry and Holbeck is a former state legislator and superintendent of the Harrisburg School District. In their lawsuit, they argue that Amendment C violates a constitutional requirement that ballots deal with only one topic. Amendment C deals with both taxation and spending, which they say are separate topics.
Tim Bormann, a spokesman for Ravnsborg’s office, said in an email: “We do not comment on pending litigation, but our office will file a response and our position will be set out in that response.”
The lawsuit also names Minnehaha County Auditor Ben Kyte. Minnehaha County State’s Attorney Daniel Haggar said his office signed the admission to service Jan. 19.
In a statement to the Argus leader, Johnson accused supporters of Amendment C, which was placed on the ballot by the Legislative Assembly, of trying to undermine the democratic process by placing it on a ballot. voting a low turnout election, as well as being unconstitutional. .
“Just as Amendment C silences voters at the polls, the state is trying to block South Dakota voters from having their voices heard in court,” Johnson wrote. “So we asked the judge to rule in our favor via a default motion, or at least force the state to defend this unconstitutional measure.”