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Johnson v. Krebs

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

October 1, 2018

G. MATT JOHNSON, and LORA HUBBEL, Plaintiffs,
v.
SHANTEL KREBS, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF SOUTH DAKOTA, Defendant. and TERRY LEE LaFLEUR, Intervenor Plaintiff;

          OPINION AND ORDER DENYING PRELIMINARY INJUNCTIVE RELIEF

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         Plaintiffs G. Matt Johnson (Johnson) and Lora Hubbel (Hubbel) filed a Complaint alleging that Defendant Shantel Krebs (Krebs), in her official capacity as the Secretary of State for the State of South Dakota, had improperly denied them and certain other nominees of the Constitution Party of South Dakota (CPSD) positions as candidates on the upcoming ballot in November of 2018, and allegedly had colluded with the Republican Party to keep CPSD candidates off the ballot through a state court proceeding. Plaintiffs, who are proceeding pro se, sought preliminary and permanent injunctive relief. Docs. 1, 7. Plaintiffs initially served Krebs's office by certified mail, but did not comply with SDCL § 15-6-4(d)(6) by serving the Attorney General of South Dakota, and in turn did not properly serve the Summons and Complaint under Rule 4 of the Federal Rules of Civil Procedure. This Court issued an Order Regarding Service and Answer/Response, Doc. 14, on September 12, 2018, noting that there was a defect with service, directing the Plaintiffs to serve the Attorney General of South Dakota as required under SDCL § 15-6-4(d)(6), and giving Krebs seven days after service to answer or otherwise respond, given the time sensitivity of the case.

         Krebs responded on September 21, 2018, with a Motion to Dismiss and filed other documents in support of the Motion to Dismiss. Docs. 20, 23. Krebs asserts that service was insufficient and that this Court lacks jurisdiction because the issues in the case are moot, the Rooker-Feldman doctrine should apply, and that issue preclusion bars the relief sought. Plaintiffs filed a Motion for Summary Judgment, Doc. 21, and an Affidavit of Joel Bergan, Doc. 22. This Court set a motion hearing to occur on September 27, 2018. The day before the motion hearing, Terry Lee LaFleur (LaFleur) filed a separate complaint naming as defendants Krebs, Hubbel, Johnson and others to assert that LaFleur, instead of Hubbel, ought to be certified as the CPSD candidate for Governor of South Dakota and seeking $100 million in damages plus punitive damages and other relief. LaFleur v. Krebs, 18-CV-4125-RAL, Doc. 1. On the morning of the hearing, LaFleur filed a motion to intervene as a party in this case. Doc. 31.

         Johnson, Hubbel, and LaFleur appeared pro se at the hearing, and Krebs appeared through counsel. This Court heard at length from each party and issued rulings on certain issues from the bench, which are memorialized and formalized herein.

         I. Facts[1]

         Krebs is the duly-elected Secretary of State for South Dakota. Johnson is a CPSD member who claims to be the duly-nominated CPSD candidate for U.S. House of Representatives from South Dakota for the November of 2018 election. Hubbel and LaFleur both are CPSD members who have competing claims to be the duly-nominated CPSD candidate for Governor of South Dakota in the upcoming election. CPSD is a fledgling political party in South Dakota that presently is embroiled in turmoil over both who is the chairman of the party and who the party's candidates are for the November of 2018 election.

         The controversy over who is the CPSD chairman and, in turn, over whose submissions to Krebs deserve credence has roots back in 2017. Before February 2, 2017, Hubbel was CPSD's chairman, and the documents on file with Krebs reflected that Hubbel was CPSD's chairman. Doc. 29-1 at 13. On February 2, 2017, Hubbel resigned as chairman because she planned to rejoin the Republican Party, thereby leaving the chairmanship to the vice-chairman Joel Bergan (Bergan). See Doc. 29-1 at 15. Bergan initially waffled about whether he wanted the responsibility of CPSD chairman, and Lori Stacey (Stacey) who was CPSD's Secretary/Treasurer seemingly assumed the position as chairman, though Bergan likewise had a claim to being chairman. LaFleur believes that Stacey was the actual chairman as of February of 2017, and points to a Statement of Organization filed by Stacey with Krebs and approved on February 6, 2017, listing Stacey as CPSD's Chairman and Treasurer. Doc. 29-1 at 20; Doc. 31. Johnson and Hubbel believe that Stacey never could be CPSD chairman because she was not truly a South Dakota resident, that she filed the form with her name listed as chairman in error, and that the chairmanship remained with Bergan. Regardless, other than what can be taken from the Statement of Organization, Krebs was not informed of a reshuffling of CPSD's officers in February of 2017, and from Krebs's perspective the CPSD chairman remained Hubbel.

         Hubbel, who had served in the South Dakota Legislature as a Republican in 2011-2012, ran unsuccessfully in the Republican primary in June of 2018 to become the Republican candidate for Governor of South Dakota. After losing in the Republican primary, on June 22, 2018, Hubbel rejoined the CPSD, Doc. 29-1 at 31, and around the same time Johnson and another former Republican state legislator Gordon Howie (Howie) likewise joined the CPSD. Hubbel and Howie reportedly had been ostracized from the South Dakota Republican Party, the dominant political party in this state. LaFleur became a CPSD member in April of 2018 and views Hubbel and Howie as part of a Republican Party plot to infiltrate and destroy the CPSD.

         The existence of competing factions of the CPSD resulted in some chaos in the CPSD in July and August of 2018. The CPSD had a convention scheduled for July 14, 2018, at which it presumably intended to nominate candidates for some statewide offices. South Dakota law recognizes two main ways that individuals can become candidates for office: 1) through the primary election process found at SDCL § 12-6; and 2) by party nomination at a convention under SDCL § 12-5. Haan v. Gant. No. CIV. 14-3009-RAL, 2014 WL 4743423, at *7-8 (D.S.D. Sept. 23, 2014). This case involves the convention process. When a political party nominates its candidates through a convention, SDCL § 12-5-17 imposes a notice requirement:

Each political party shall hold a state convention in each even-numbered year in which they are necessary for the purposes of § 12-5-21. The time and place of holding such convention shall be determined by the State Central Committee of each political party, the chairman of which shall notify the secretary of state at least thirty days previous to the date so chosen.

SDCL § 12-5-17.[2] There appears not to have been notice given to Krebs thirty days before the planned CPSD convention set for July 14, 2018, and indeed it appears two people believed themselves entitled to act as CPSD chairman as that convention neared.

         On July 13, 2018, Hubbel contacted the National Constitution Party about Stacey's claim to be the CPSD chairman. Doc. 29-1 at 21. A representative of the National Constitution Party sent an email message to Hubbel stating that documents at Krebs's office showed Hubbel to remain chairman and that Stacey could not assume the position of chairman. Doc. 29-1 at 21. The National Chair of the Constitution Party sent Stacey a letter telling her that she could not act as CPSD chairman. On July 13, 2018, Hubbel sent to Krebs notice of a convention for the CPSD to be held in Pierre, South Dakota on August 14, 2017. Doc. 24 at ¶ 5; Doc. 29 at ¶ 21; Doc. 29-1 at 28. Hubbel signed the notice representing that she was the chairman of the CPSD. Doc. 24 at ¶5.

         The CPSD convention on July 14, 2018, apparently was chaotic. Before Stacey arrived, Hubbel resigned as chairman to allow Bergan to be chairman, but Bergan was uncomfortable with the rules of order and allowed Howie to be acting chairman or perhaps convention chairman. LaFleur was there, and he and at least one other felt that the CPSD convention was being hijacked. Hubbel reports that her files were stolen during the convention, although LaFleur viewed them as being picked up after being abandoned. The convention ended without any slate of CPSD candidates being selected.

         On Sunday, July 15, 2018, Krebs received an email sent from or for Stacey giving notice that the CPSD would be holding a convention in Pierre on August 14, 2017. Doc. 24 at ¶ 6. Stacey claimed in the email that she was the chairman of the CPSD. Doc. 24 at ¶ 7. On July 17, 2018, Krebs, having now received two separate notices of CPSD convention signed by two different people purporting to be CPSD chairman, sent a letter to the CPSD explaining that South Dakota law requires certification of the state party chairman to the secretary of state. Doc. 24 at ¶ 7. Krebs's letter asked CPSD to certify who held the position of party chairman. Doc. 24 at ¶ 7. On July 20, 2018, Hubbel sent Krebs notice that Bergan had assumed the position of CPSD chairman. Doc. 29-1; Doc. 24 at ¶ 8.

         On July 21, 2018, certain members of the CPSD held a meeting "to establish an official full and functioning Constitution Party Board." Doc. 29 at ¶ 27. Apparently, Bergan resigned as chairman of the Hubbel/Bergan faction of the CPSD during this meeting and Howie became the chairman. Doc. 29-3; Doc. 29 at ¶¶ 27-28. LaFleur was not present or aware of the meeting and considers the July 21 meeting to be an invalid secret meeting. LaFleur stresses that some documents from the Hubbel/Bergan faction at this time refer to the "South Dakota Constitution Party" rather than the properly named "Constitution Party of South Dakota," although it is clear that the Hubbel/Bergan faction was not starting some new party but attempting to act for the existing CPSD.

         On August 1, 2018, Dan Lederman (Lederman), the chairman of the South Dakota Republican Party, sought a writ of prohibition against Krebs requesting that a state court prohibit Krebs from certifying the CPSD's candidates for the 2018 general election. Doc. 25-2. Lederman for the South Dakota Republican Party had taken legal action to seek to keep candidates from the South Dakota Democratic Party and the South Dakota Libertarian Party off the ballot as well. Among other things, Lederman argued that the notices of convention from Hubbel and Stacey were improper under South Dakota law because neither woman was the duly elected or appointed chairman of the CPSD. Doc. 25-2. The case was assigned to the Honorable Patricia DeVaney of South Dakota's Sixth Judicial Circuit. Lederman served Bergan on August 1, 2018, when it filed the action. Doc. 22 at ¶ 6; Doc. 23 at 11. On August 3, 2018, Judge DeVaney issued an order temporarily prohibiting Krebs from placing any CPSD candidates on the 2018 general election ballot and requiring that Krebs appear for a hearing on August 16, 2018, to show cause why the temporary prohibition should not become permanent. Doc. 25-3. Lawyers for Krebs from the Attorney General's office participated by telephone when Lederman on behalf of the Republican Party obtained the temporary writ of prohibition, but no one from the CPSD participated.

         Plaintiffs allege that Howie told other board members of the CPSD that he had spoken with Krebs and the two of them had decided that the CPSD should not send Krebs a list of the new CPSD board members selected on July 21, 2018. Doc. 29 at ¶ 31. According to Plaintiffs, Howie told the board members that doing so "would just confuse the issue." Doc. 29 at ¶ 31.

         On August 6, 2018, Krebs received an email from Stacey stating that she had resigned as CPSD chairman and that Mike Gunn (Gunn) now held the position. On August 14, 2018, the two competing factions of the CPSD held their conventions at two different hotels in Pierre. Approximately 30 people attended the Hubbel/Bergan faction convention, while just five people attended the Stacey/Gunn/LaFleur faction convention. On August 14, Krebs received separate notices of two slates of CPSD candidates-one from each CPSD faction. Doc. 24 at ¶ 11; Doc. 29 at ¶ 32. The Hubbel/Bergan faction of the CPSD nominated Johnson for United States House of Representatives, Hubbel for governor, Tara Volesky for lieutenant governor, and several candidates for the South Dakota House of ...


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