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Strong v. Gant

Supreme Court of South Dakota

February 12, 2014

Stephanie STRONG, Applicant and Appellant,
v.
Jason M. GANT, in his official capacity as Secretary of State for the State of South Dakota, Respondent, and Brian Gosch, Intervenor, Respondent and Appellee, and The Pennington County Republican Party, Intervenor and Respondent.

Considered on Briefs Jan. 14, 2014.

Page 358

Stephanie Strong Rapid City, South Dakota, Pro se appellant.

Sara Frankenstein, Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, South Dakota, Attorneys for intervenor, respondent and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Pro-se applicant appealed the circuit court's award of attorney's fees under SDCL 15-17-51 and costs and disbursements under SDCL 15-17-37, asserting: (1) that the circuit court was without jurisdiction to award attorney's fees while her appeal of the underlying judgment on the merits was pending, and (2) the circuit court was without authority to tax costs and disbursements absent a request for a hearing by her.

Page 359

Facts and Procedural History

[¶ 2.] On August 27, 2012, Stephanie Strong, acting pro se, submitted an affidavit and application for a writ of mandamus with the circuit court of the Seventh Judicial Circuit asking the court to compel South Dakota Secretary of State Jason Gant to review and investigate the nominating petitions for Republican candidate Brian Gosch for the November 2012 election in Pennington County Legislative District 32. Strong asserted that Gosch's nominating petitions were invalid because Gosch notarized his petitions in violation of SDCL 18-1-7. Strong sought mandamus alleging Secretary Gant refused to investigate the matter and that the time to review nominating petitions had not yet expired.

[¶ 3.] Strong's case was originally assigned to Presiding Judge Jeff Davis, but Strong submitted an affidavit for a change of judge. The case was ultimately reassigned to Judge Robert Mandel.

[¶ 4.] On August 14, 2012, the court issued an Alternative Writ of Mandamus ordering Secretary Gant to either take immediate action to investigate and reject the nominating petitions for candidate Gosch or appear before the court on October 3, 2012, to show cause why a permanent writ of mandamus should not issue.[1] On September 18, 2012, Secretary Gant moved to change venue to Hughes County, asserting that Strong filed her application for a writ in an improper venue under SDCL 15-5-2(2).[2] On September 21, 2012, Gosch and the Pennington County Republican Party (Intervenors) moved to intervene under SDCL 15-6-24(b). That same day, Secretary Gant moved the circuit court to dismiss Strong's application for mandamus and to quash her writ. Secretary Gant alleged that he was without power to take the action demanded by Strong, as the time to challenge a nominating petition had long passed. He further claimed that Strong failed to serve the Office of the Attorney General as required by SDCL 21-29-6 and SDCL 15-6-4(d)(5). The Intervenors similarly moved the circuit court to dismiss Strong's application for mandamus and to quash her writ, asserting that Strong failed to state a claim upon which relief may be granted.

[¶ 5.] On September 24, 2012, the circuit court issued an order changing venue to Hughes County and ordered that the alternative writ issued " on August 14, 2012, [be] hereby rescinded[.]" On September 28, 2012, Strong moved the court to vacate its order changing venue, asserting that it was entered contrary to the requirements of state law and without due process because Strong was not afforded a hearing.

[¶ 6.] On October 29, 2012, Strong filed a notice of appeal of the order changing venue, which was dismissed by this Court on November 1, 2012, because a change of venue order is not an appealable order

Page 360

under SDCL 15-26A-3. On December 7, 2012, with the case now venued in Hughes County (Sixth Judicial Circuit), Strong requested that Judge Mark Barnett recuse himself and submitted an affidavit for a change of judge. On December 18, 2012, Judge Kathleen Trandahl was appointed to preside over the case. ...


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