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Johnson v. Lafleur

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

June 28, 2019

G. MATT JOHNSON, and LORA HUBBEL, Plaintiffs,
v.
TERRY LEE LAFLEUR, Intervenor Plaintiff,
v.
STEVEN BARNETT, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF SOUTH DAKOTA, Defendant. DR. TERRY LEE LAFLEUR, IN HIS PERSONAL AND OFFICIAL CAPACITY AS CANDIDATE FOR GOVERNOR OF SOUTH DAKOTA, Plaintiff,
v.
STATE OF SOUTH DAKOTA, SHANTEL KREBS, IN HER PERSONAL AND OFFICIAL CAPACITY AS SECRETARY OF STATE FOR SOUTH DAKOTA; STEVEN BARNETT, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE FOR SOUTH DAKOTA; DAN LEDERMAN, IN HIS PERSONALD AND HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE REPUBLICAN PARTY OF SOUTH DAKOTA; LORA HUBBEL, GORDON HOWIE, JOEL BERGAN, MARILEE ROOSE, FRANK FLUCKIGER, IN HIS PERSONAL AND OFFICIAL CAPACITY AS CHAIRMAN OF THE NATIONAL CONSTITUTION PARTY; AND MATT JOHNSON, JOINTLY AND SEVERELY, Defendants.

          OPINION AND ORDER RULING ON PENDING MOTIONS AND DISMISSING CASES

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         These two cases are very closely related, arising out of the same set of facts and circumstances. Indeed, this Court has taken judicial notice of all filings in 18-CV-4108-RAL as a part of its consideration of matters in the second-filed case of 18-CV-4125-RAL. 18-CV-4125-RAL, Doc. 22. Both cases relate to a dispute in 2018 over who, if anyone, should be listed on the South Dakota ballot as candidates for the Constitution Party of South Dakota (CPSD). The CPSD had fractured into two dueling factions, both which wanted its candidates, and only its candidates, as those representing the CPSD on the state ballot in November of 2018. A state judge, in August of 2018, ruled that no CPSD candidate should appear on the 2018 ballot. Plaintiffs G. Matt Johnson (Johnson) and Lora Hubbel (Hubbel) then sued seeking injunctive relief before this Court to have them and their faction of CPSD candidates placed on the 2018 ballot. 18-CV-4108-RAL, Doc. 1. This Court held a hearing on September 27, 2018, allowed Terry Lee LaFleur (LaFleur) to intervene in that case, and on October 1, 2018, issued an Opinion and Order Denying Preliminary Injunctive Relief. 18-CV-4108-RAL, Docs. 32, 33. LaFleur then brought his own case naming the South Dakota Secretary of State, along with Johnson, Hubbel, and others as Defendants. 18-CV-4125-RAL, Doc. 1. There are pending motions in both cases. Because the facts and issues in the two cases overlap, this Court addresses all pending motions in this single Opinion and Order. Because this Court is ruling on a motion to dismiss in 18-CV-4108-RAL, and is screening 18-CV-4125-RAL, this Court is mindful to take the facts from the well-pleaded allegations of the amended complaints in each of the cases. However, this Court first summarizes the common core of undisputable facts between the two cases.

         1. Common Core of Facts

         Shantel Krebs was the duly-elected Secretary of State for South Dakota and held that position at all relevant times during 2018. Under Rule 25(d) of the Federal Rules of Civil Procedure, her successor in office Steve Barnett is now a named defendant in both cases. This Opinion and Order will refer to the actions of the "Secretary of State," who at the relevant time was Krebs.

         Johnson is a CPSD member who claims to have been 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 have been the duly-nominated CPSD candidate for Governor of South Dakota in the November 2018 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 for the November of 2018 election should have been.

         The controversy over who is the CPSD chairman and, in turn, over whose submissions to the South Dakota Secretary of State deserve credence has roots back in 2017. Before February 2, 2017, Hubbel was CPSD's chairman, and the documents on file with the Secretary of State reflected that Hubbel was CPSD's chairman. 18-CV-4108-RAL, 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). Id. at Doc. 29-1 at 15-16. 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 some claim to being chairman. LaFleur believes that Stacey was the actual CPSD chairman as of February of 2017, and points to the Statement of Organization filed by Stacey with the Secretary of State and approved on February 6, 2017, listing Stacey as CPSD's Chairman and Treasurer. Id. at Doc. 29-1 at 20; Doc. 31. Johnson and Hubbel believe that Stacey never could be CPSD chairman because she was not 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, the Secretary of State was not informed of a reshuffling of CPSD's officers in February of 2017, and from the State'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, Id. at 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 felt ostracized from the South Dakota Republican Party, the dominant political party in South Dakota. 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 controversy 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. [1] There appears not to have been notice given to the Secretary of State 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. 18-CV-4108-RAL, Doc. 29-1 at 21. A representative of the National Constitution Party sent an email message to Hubbel stating that documents at the Secretary of State's office showed Hubbel to remain chairman and that Stacey could not assume the position of chairman. Id. at Doc. 29-1 at 21. LaFleur vehemently disagrees with the National Constitution Party's position and has named in his latest complaint certain of those involved in the National Constitution Party as part of a conspiracy. 18-CV-4125-RAL, Doc. 43. 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 the Secretary of State notice of a convention for the CPSD to be held in Pierre, South Dakota, on August 14, 2018. 18-CV-4108-RAL, 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. hi at 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 wanted 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, the Secretary of State received an email sent from or for Stacey giving notice that the CPSD would be holding a convention in Pierre on August 14, 2018. Id. at Doc. 24 at ¶ 6. Stacey stated in the email that she was the chairman of the CPSD. I(L at Doc. 24 at ¶ 7. On July 17, 2018, the Secretary of State, having now received two separate notices of a 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. Id. at Doc. 24 at ¶ 7. The Secretary of State's letter asked CPSD to certify who held the position of party chairman. Id. at Doc. 24 at ¶ 7. On July 20, 2018, Hubbel sent the Secretary of State notice that Bergan had assumed the position of CPSD chairman. Id. at Doc. 24 at ¶ 8; Doc. 29-1 at 1.

         On July 21, 2018, a group of CPSD members held a meeting "to establish an official full and functioning Constitution Party Board." Id. at 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 in the view of Johnson and Hubbel. Id. at Doc. 29-3; Doc. 29 at ¶¶ 27-28. LaFleur was neither present nor aware at the time of the meeting and considers the July 21 meeting to be a sham 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, filed a state court action seeking a writ of prohibition against the Secretary of State to prohibit the Secretary of State from certifying the CPSD's candidates for the 2018 general election. Id. at 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. Id. at Doc. 25-2. The case was assigned to the Honorable Patricia DeVaney, then a judge in South Dakota's Sixth Judicial Circuit.[2] Lederman served Bergan on August 1, 2018, believing him to be the proper person to serve for the CPSD based on filings with the Secretary of State. Id. at Doc. 22 at ¶ 6, Doc. 23 at 11. On August 3, 2018, Judge DeVaney issued an order temporarily prohibiting the Secretary of State from placing any CPSD candidates on the 2018 general election ballot and requiring that the Secretary of State appear for a hearing on August 16, 2018, to show cause why the temporary prohibition should not become permanent. Id. at Doc. 25-3. Lawyers for the Secretary of State from the South Dakota 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.

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

         On August 6, 2018, the Secretary of State 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 perhaps five people attended the Stacey/Gunn/LaFleur faction convention. On August 14, 2018, the Secretary of State received separate notices of two slates of CPSD candidates-one from each CPSD faction. Id. at 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 Representatives. Id. at Doc. 24 at ¶ 11. The Stacey/Gunn/LaFleur faction nominated LaFleur for Governor, Rick Gortmaker for Lieutenant Governor, and Gunn for the Public Utilities Commission. Id.

         Johnson and Hubbel allege that on August 15, 2018, Howie told other members of the CPSD board from the Hubbel/Bergan faction not to attend the August 16 court hearing. Id. at Doc. 29 at ¶ 33. According to Johnson and Hubbel, Howie said that the Secretary of State would "cover" for the CPSD because they were on the same side of the lawsuit, that he was "quite sure" the CPSD would be on the ballot after speaking with the Secretary of State, and that CPSD members who attended the hearing risked getting questioned and "tripped up" by the South Dakota Republican Party's counsel who was representing Lederman. Id. at Doc. 29 at ΒΆ 33. The Secretary of State disputes having given Howie any such advice. An attorney filed a notice of appearance on behalf of ...


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