Combined South Dakota Motions To Reconsider in ICWA Case

Case 5:13-cv-05020-JLV Document 172 Filed 04/27/15 Page 1 of 15 PageID #: 4040
UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
OGALALA SIOUX TRIBE and
ROSEBUD SIOUX TRIBE, as parens
patriae, to protect the rights of their
tribal members; and MADONNA
PAPPAN, and LISA YOUNG,
individually and on behalf of all
other persons similarly situated,
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Plaintiffs,
v.
LUANN VAN HUNNIK; MARK
VARGO; HONORABLE JEFF DAVIS;
and LYNNE A. VALENTI, in
their official capacities,
Defendants.
C13-5020
JUDGE DAVIS MEMORANDUM OF

LAW IN SUPPORT OF MOTION TO
ALTER, AMEND, OR RECONSIDER
PURSUANT TO RULE 59 or RULE 60
Judge Davis, by and through his undersigned counsel of record, does hereby submit his
Memorandum of Law in Support of his Motion to Alter, Amend, or Reconsider.
INTRODUCTION
On March 21, 2013, Plaintiffs filed this action asserting, among other things,
defendants policies, practices and procedures relating to the removal of Native American
children from their homes during state court 48-hour hearings violate ICWA and the Due Process
Clause of the Fourteenth Amendment. (Docket 1 & 150 at 8.) Plaintiffs complaint demands
prospective relief based upon 42 U.S.C. 1983.
On May 17, 2013, Defendants moved to dismiss Plaintiffs Complaint because, among
other reasons, Defendants were not final policymakers, under Monell v. Dept. of Soc. Servs of
City of New York, 436 U.S. 658, 694 (1978). (Docket 34, at 12-13.) In his Memorandum of Law
in Support of his Motion to Dismiss, Judge Davis set out the myriad ways in which Plaintiffs
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could appeal or otherwise challenge a state court judges order on temporary custody petitions
(TCOs). (Document 34, at 28.) Those arguments are incorporated herein by reference.
On January 28, 2014, the Court rejected Defendants arguments in total, and denied
Defendants Motions to Dismiss. (Docket 69.) In so doing, the Court rejected Judge Davis
position that he is not a final policymaker. (Docket 69, at 21.)
On July 14, 2014, after limited discovery, including no depositions, Plaintiffs moved for
partial summary judgment on claims related to 25 U.S.C. 1922, and the Due Process Clause of
the Fourteenth Amendment to the United States Constitution. (Docket 108 & 110) Again, in
response Judge Davis argued that he was not a final policymaker. (Docket 129 at 19.)
RELIEF REQUESTED
On March 30, 2015, the Court entered an order granting plaintiffs motions (Docket 108
and 110) for partial summary judgment, concluding that plaintiffs are entitled to injunctive and
declaratory relief. Neither an injunction, nor a declaratory judgment has yet issued. (Docket 150
at 44-45.) Among the findings made by the Court on summary judgment, is that Judge Davis is a
final policymaker as a matter of law in setting the policies, practices, and customs challenged
in this lawsuit. (Docket 150 at 22-27.) In order to arrive at the conclusion that Judge Davis is a
final policymaker, the Court found as a matter of law that orders granting petitions for
temporary custody in 48-hour hearings are not subject to appellate review. (Docket 150, at 25
(citing SDCL 15-26A-3; Midcom, Inc. v. Oehlerking, 722 N.W.2d 725 (S.D. 2006.) (finding
[t]here is no right of appellate review of Judge Davis 48-hour hearing decisions because those
decisions are not a final judgment subject to appellate review under South Dakota law.) Judge
Davis contends that this conclusion is a manifest error of law, requiring reconsideration under
Rule 59 or 60 of the Federal Rules of Civil Procedure.
The Federal Rules of Civil Procedure do not mention motions to reconsider. The Eighth
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Circuit has instructed courts to consider such motions either under Rule 59(e) or Rule 60(b).
Alliance Communs. Coop., Inc. v. Global crossing Telecomms., Inc., 690 F.Supp.2d 889, 893 (D.
S.D. 2010)(citing Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir. 1988); and Hagerman v. Yukon
Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)(other citations omitted). Rule 59(e) refers to entry
of judgment, but some authority indicates that a district court may entertain a Rule 59(e) motion
before the entry of final judgment on a separate document. Id. "Motions for reconsideration serve a
limited function: to correct manifest errors of law or fact or to present newly discovered evidence."
Id. District courts have broad discretion in determining whether to grant a motion for
reconsideration. Id.
The basis for this Motion lies in the manifest error of law reached by the Court that Judge
Davis is a final policymaker with respect to procedures employed in his courtroom because his
decisions are not subject to appellate review. (Docket 150, at 25.) Whether an individual is a
final policymaker is a question of law to be resolved by the trial judge before the case is
submitted to the jury. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989); see also
Schlimgen v. City of Rapid City, 2000 DSD 13, 15, 83 F. Supp. 2d 1061, 1067 (D.S.D. 2000).
Under South Dakota state law, there appear to be at least four means for the South Dakota
Supreme Court to review and ratify or reject procedures used by a circuit court judge during a
temporary custody hearing. Two of those are statutory avenues of direct appeal, SDCL 15-26A3(4) and (6), and two are extraordinary relief through writs, i.e. writs of mandamus/prohibition,
or writs of habeas corpus. SDCL 21-20-1, SDCL 21-30-1, and SDCL 21-27-5. These channels of
review deprive Judge Davis of final policymaker authority under Monell. 436 U.S. 658.
The determination of whether Judge Davis has final policymaker authority is a
threshold issue in this case. As such, Judge Davis respectfully requests the Court reconsider its
order granting Plaintiffs Motions for Partial Summary Judgment. (Docket 108 & 110.)
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LEGAL ANALYSIS
A policy maker is one who speaks with final policymaking authority . . . concerning
the action alleged to have caused the particular constitutional or statutory violation at issue, that
is one with the power to make official policy on a particular issue. (Docket 150, at 22 (citing
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). No court has concluded that a
constitutionally elected state court judge is a final policymaker under Monell v. Dept. of Soc.
Servs of City of New York, 436 U.S. 658, 694 (1978). Cf. Williams v. Butler, 863 F.2d 1398,
1399 (8th Cir. 1988) (finding municipal traffic judge was final policymaker because the city had
delegated to the judge the authority to make City policy as to employment matters in his
court.).
Pursuant to Monell,
municipal liability will attach when the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation,
or decision officially adopted and promulgated by that body's officers. . . . Less
formal governmental actions may also result in liability if practices of state
officials [are] so permanent and well settled as to constitute a custom or usage
with the force of law.
Williams, 863 F.2d at 1400 (8th Cir. 1988) (citations omitted).
In Monell itself, it was undisputed that there had been an official policy requiring
city employees to take actions that were unconstitutional under this Court's
decisions. Without attempting to draw the line . . . between actions taken pursuant
to official policy and the independent actions of employees . . . and agents, the
Monell Court left the full contours of municipal liability under 1983 to be
developed further on another day.
City of St. Louis v. Praprotnik, 485 U.S. 112, 122-23 (citations omitted). At a minimum, the
governmental official must have final policymaking authority, which is a question of state law.
Id. at 123 (emphasis added).
I. Errors of Law
On this record, the Court has concluded that Judge Davis was a final policymaker as a
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matter of law because there is no right of appellate review of Judge Davis 48-hour hearings.
(Docket 150, at 25.) However, the South Dakota Supreme Court has never addressed the ability
of a parent to take a direct appeal of a temporary custody order in the context of a 48-hour
hearing. Moreover, a right to direct appeal is not dispositive of whether Judge Davis has final
policymaking authority. [W]hen a subordinate's decision is subject to review by the
municipality's authorized policymakers, they have retained the authority to measure the official's
conduct for conformance with their policies. If the authorized policymakers approve a
subordinate's decision and the basis for it, their ratification would be chargeable to the
municipality because their decision is final. Praprotnik, 485 U.S. at 127 (emphasis in original).
The South Dakota Constitution provides:
The Supreme Court shall have such appellate jurisdiction as may be provided by
the Legislature, and the Supreme Court or any justice thereof may issue any
original or remedial writ which shall then be heard and determined by that court.
The Governor has authority to require opinions of the Supreme Court upon
important questions of law involved in the exercise of his executive power and
upon solemn occasions.
The circuit courts have original jurisdiction in all cases except as to any limited
original jurisdiction granted to other courts by the Legislature. The circuit courts
and judges thereof have the power to issue, hear and determine all original and
remedial writs. The circuit courts have such appellate jurisdiction as may be
provided by law.
S.D. Const. Art. 5, 5. See also S.D. Const. Art. 5, 11. The South Dakota Legislature has
provided for at least four avenues for the South Dakota Supreme Court to review and ratify or
reject the rules or procedures used by a circuit court judge during a temporary custody hearing.
SDCL 15-26A-3(4) and (6) SDCL 21-20-1, SDCL 21-30-1, and SDCL 21-27-5. These avenues
of appeal deprive Judge Davis of final policymaker authority. Praprotnik, 485 U.S. at 127.
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In other words, these avenues of review achieve an incomplete delegation of authority to

Judge Davis from the South Dakota Supreme Court. The Eight Circuit has explained that
a very fine line exists between delegating final policymaking authority to an
official, for which a municipality may be held liable, and entrusting discretionary
authority to that official, for which no liability attaches. The distinction, we
believe, lies in the amount of authority retained by the authorized policymakers. A
clear message from Praprotnik is that an incomplete delegation of authority-i.e.,
the right of review is retained-will not result in municipal liability, whereas an
absolute delegation of authority may result in liability on the part of the
municipality.
Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir. 1988). Here, there is an incomplete delegation
of authority. See e.g. Cheyenne River Sioux Tribe v. Davis, 2012 S.D. 69, 822 N.W.2d 62. As
such, the South Dakota Supreme Court, and not Judge Davis, has final policymaking authority
with respect to the procedures used in 48-hour hearings.
1. SDCL 15-26A-3(4) May Afford Appellate Review As a Matter of Right for
Temporary Custody Orders (TCOs).
The South Dakota Supreme Court has analyzed the issue of the finality of TCOs in the
other domestic arenas. See Saint-Pierre v. Saint Pierre, 357 N.W.2d 250, 254 (S.D. 1984). In
Saint-Pierre v. Saint-Pierre, the South Dakota Supreme Court was reviewing a divorce decree,
which included a TCO, granting custody of the parties child to the father. Id. In challenging the
decree, the father argued that the TCO was not reviewable because the order was not final, and
therefore, could only be appealed pursuant to SDCL 15-26A-13. Id. at 254.
The South Dakota Supreme Court disagreed.
Id. The court explained that [i]n a
technical sense . . . all custody orders are temporary inasmuch as they are always subject to being
modified . . . Id. Though temporary in this sense, custody orders do not lapse or become
ineffective merely by the passage of time. Id. Therefore, the court concluded that TCOs
resulting from divorce decrees can fall within the classification of those judgment and orders
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that are appealable as a matter of right under the provisions of SDCL 15-26A-3(4). Id.
This is also true of TCOs issued in child abuse and neglect cases. Although TCOs are
required to be reviewed every sixty days, SDCL 26-7A-19(c), any lapse of this requirement does
not automatically result in the restoration of the child to his or her parents. See SDCL 26-7A-16
(stating an apparent, alleged, or adjudicated abused or neglected child . . . may be held in
temporary custody until released by order of the court.)
Unquestionably, the court in Saint-
Pierre was looking at a different type of TCO, but the rationale applied merits equal
consideration in the context of child protection cases. Such orders may be appealed as a matter of
right, pursuant to SDCL 15-26A-3(4).
South Dakota Codified Law, section 15-26A-3(4) allows for an appeal as a matter of
right from [a]ny final order affecting a substantial right, made in special proceedings, or upon a
summary application in an action after judgment. The South Dakota Supreme Court has
confirmed this right in Saint-Pierre. Saint-Pierre, 357 N.W.2d at 254. There is no reason to
believe that the South Dakota Supreme Court would treat TCOs resulting from an abuse and
neglect case any differently from a TCOs resulting from a divorce decree. After all, temporary
custody is temporary custody. Despite the different settings, the issue is the same, and appears to
be controlling. Furthermore, this Court may not engage any presumption that the [South
Dakota Supreme Court] will not safeguard federal constitutional rights. Neal v. Wilson, 112
F.3d 351, 357 (8th Cir.1997) (quoting Middlesex County Ethics Committee, 457 U.S. at 431).
If the Court deems Saint-Pierre as non-controlling on this issue, then at a minimum, the
issue, as it relates to 48-hour hearing decisions, should be certified to the South Dakota Supreme
Court.
Certification is within the federal court's discretion. Certification is appropriate
when the state court's construction of an uncertain state law could make resolution
of federal constitutional questions unnecessary. The South Dakota Supreme
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Court may answer questions of law certified to it which may be determinative of

the cause pending in the certifying court and [when] it appears ... that there is no
controlling precedent in the decisions of the Supreme Court of [South Dakota].
Bone Shirt v. Hazeltine, 2005 S.D. 84, 6, 700 N.W.2d 746, 749 opinion after certified question
answered, 387 F. Supp. 2d 1035 (D.S.D. 2005) aff'd, 461 F.3d 1011 (8th Cir. 2006) (citing
Perkins v. Clark Equipment Co., 823 F.2d 207, 209 (8th Cir.1987); Planned Parenthood, Sioux
Falls Clinic v. Miller, 63 F.3d 1452, 1463 (8th Cir.1995); SDCL 1524A1.). Having not been
certified to the South Dakota Supreme Court, pursuant to SDCL 15-24A-1, the parties, and more
importantly the Court, are left to guess as to the limitations of Judge Davis authority. Given that
this issue is also paramount to the scope of South Dakota Supreme Courts authority, it would be
appropriate to allow the high court to be final speaker on the scope of its own constitutional
authority.
Judge Davis would respectfully request the Court reconsider, and alter its judgment in
light of a parents ostensible right to direct appeal of temporary custody orders issued at the
conclusion of 48-hour hearings.
2. SDCL 15-26A-3(6) Affords Discretionary Appellate Review of TCOs.
In addition to the foregoing, SDCL 15-26A-3(6) can be used for a discretionary appeal
to the South Dakota Supreme Court from [a]ny other intermediate order made before trial, any
appeal under this subdivision, however, being not a matter of right but of sound judicial
discretion, and to be allowed by the Supreme Court in the manner provided by rules of such
court only when the court considers that the ends of justice will be served by determination of
the questions involved without awaiting the final determination of the action or proceeding[.]
SDCL 15-26A-3(6).
Through a discretionary appeal, parties at 48-hour hearings may have TCOs reviewed by
the South Dakota Supreme Court.
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An appeal from an intermediate order made before trial as prescribed by

subdivision 15-26A-3(6) may be sought by filing a petition for permission to
appeal, together with proof of service thereof upon all other parties to the action
in circuit court, with the clerk of the Supreme Court within ten days after notice of
entry of such order. When a petition is forwarded to the clerk for filing by mail it
shall be accompanied by an affidavit of mailing or certificate of service of mailing
and shall be deemed to be filed as of the date of mailing . . .
SDCL 15-26A-13. This procedure would further deprive Judge Davis of final policymaking
authority, because the South Dakota Supreme Court, through the legislature, has retained the
authority to measure the officials conduct for conformance with [its] policies. Praprotnik, 485
U.S. at 127.
In Saint-Pierre the South Dakota Supreme Court discussed the use of SDCL 15-26A-3(6)
and SDCL 15-26A-13, as a means of challenging a TCO. Saint-Pierre, 357 N.W.2d at 254.
Although the court in Saint-Pierre declined to compel a party to follow SDCL 15-26A-13, for
purposes of a discretionary appellate review, there is no reason to assume it could not be used for
such purposes. TCOs are, after all, an intermediate order made before [adjudication].
Plaintiffs cannot dispute that the ends of justice [would] be served by determination of the
questions involved without awaiting the final determination of the action or proceeding. Id.
Thus, it would be logical to assume that parties to 48-hour hearings would retain the right to
discretionary appeals pursuant to SDCL 15-26A-3(6) and 15-26A-13. If such an appeal is taken,
Judge Davis would be deprived of final policymaking authority on the issue. It would also
provide yet another reason why Judge Davis is not, and cannot, be a final policymaker because
his decisions are subject to appellate review.
3. Parties to Child Custody Proceedings May Seek a Writ of Habeas Corpus.
In addition to the parties statutory rights of appeal, parties to any child abuse and neglect
proceeding retain the right to petition the circuit court for a writ of habeas corpus.
See
Application of G.K., 248 N.W.2d 380, 382-83 (S.D. 1977) (citing SDCL 21-27-5); see also S.D.
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Const. Art 6, 8. The South Dakota Supreme Court has explained that [i]llegal detention is the
basis for issuance of a writ of habeas corpus. When custody of a child is involved, however, the
scope of the writ is enlarged and the courts equitable powers over the child are invoked.
Application of G.K., 248 N.W.2d at 382-83 (citations omitted).
Any decision made by any circuit court judge on a petition for habeas corpus is subject to
review by the South Dakota Supreme Court. See SDCL 21-27-18.1. Although this procedure is
not a direct right of appeal, the ability of parents to seek a writ of habeas corpus provides yet
another means of review before the body with final policymaking authority, i.e. the South
Dakota Supreme Court. Therefore, there has not been a complete delegation of authority to Judge
Davis, and he lacks final policymaking authority.
4. Parties to Child Custody Proceedings May Seek a Writ of Mandamus.
The final manner of reviewing the procedures in 48-hour hearings is the procedure used
in Cheyenne River Sioux Tribe v. Davis, 2012 S.D. 69, 822 N.W.2d 62. There, the Cheyenne
River Sioux Tribe applied for a writ of mandamus or prohibition, pursuant to SDCL 21-20-1, and
SDCL 21-30-1. The Cheyenne River Sioux Tribe applied for the writ, contending that Judge
Davis 48-hour hearing violated the Tribes federal and state rights, and that it was irreparably
harmed by the lack of any mechanism to contest the trial courts failure to fully follow ICWA at
the temporary custody stage. Cheyenne River, 2012 S.D. 69, 8, 822 N.W.2d 62.
In order to prevail, on a writ of mandamus or prohibition, the petitioner must show a clear
legal right to performance of the specific duty sought to be compelled and the respondent must
have a definite legal obligation to perform that duty. Krsnak v. South Dakota Dept. of
Environment and Natural Resources, 2012 S.D 89, 9, 824 N.W.2d 429. In Cheyenne River, the
Tribe, as a party to the 48-hour hearing, had the opportunity to contest many of the procedures
determined by the Court on summary judgment (Docket 150) before the body with actual
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policymaking authority in South Dakota.

This procedure allows the South Dakota Supreme Court to review, and ratify or reject the
decisions made by circuit court judges. All parties to 48-hour hearings retain this right.
Cheyenne River illustrates a clear example of a pronouncement from the body that speaks with
final policymaking authority for the state of South Dakota on the procedures used at 48-hour
hearings. That body is the South Dakota Supreme Court, not Judge Davis. This extraordinary
remedy divests Judge Davis of final policymaking authority, under Monell, because it vests the
ultimate decision-making authority in the South Dakota Supreme Court, not the circuit court.
Finally, it is also worth noting that, in addition to direct challenges, the parties also may
make an intermediate appeal regarding an order of adjudication with the permission of the court
in accordance with the rules of appellate procedure. See SDCL 26-7A-87. Plaintiffs would
further have the right to appeal after the final disposition of the matter. See SDCL 26-7A-90.
These channels of review further deprive Judge Davis of final policymaking authority.
II. Errors of Fact
Finally, Judge Davis also objects to several factual findings made by the Court with
respect to Judge Davis alleged policies (Docket 150, at 24 and 36). Summary judgment is
appropriate when there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(a). But, a court must view the evidence in the
light most favorable to the opposing party. Tolan v. Cotton, U.S. , 134 S.Ct. 1861,
1866, 1868, 188 L.Ed.2d 895 (2014) (per curiam) (By weighing the evidence and reaching
factual inferences contrary to Tolan's competent evidence, the court below neglected to adhere to
the fundamental principle that at the summary judgment stage, reasonable inferences should be
drawn in favor of the nonmoving party. (emphasis added)). Chavero-Linares v. Smith, __ F.3d
__; No. 13-3532, 2015 WL 1610223, at *2 (8th Cir. April 13, 2015).
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Specifically, the Court found that Judge Davis stated that no testimony is permitted at the
48-hour hearing. (Docket 150, at 41.) This is different from Judge Davis actual statement that no
oral testimony is taken. (Docket 130 at 5.) This led the Court to conclude that Judge Davis did
not permit the 48-hour hearings to be conducted as evidentiary hearings. Cf. SD Guidelines at
p. 35 (stating RULES OF EVIDENCE DO NOT APPLY SDCL 26-7A-56. Instead the Court
may design its own rules of evidence to fully inform the Court.)
In Cheyenne River, one of the core issues addressed was the Tribes assertion that there
was a violation of state law in the 48-hour hearing based upon an alleged lack of evidence of a
need for temporary custody as required by SDCL 26-7A-18. Cheyenne River Sioux Tribe, 2012
S.D. 69, 12. Essentially the Tribe was claiming there was no evidentiary hearing in the sense
that there was no evidence presented to the Court for purposes of continued temporary custody.
In rejecting the Tribes assertion, the South Dakota Supreme Court stated:
. . . . Tribe ignores, however, that the temporary custody hearing proceeded on
State's petition for temporary custody and the accompanying police report and
ICWA affidavit from a DSS specialist. The report and affidavit set forth facts
concerning the need for temporary custody. While these documents might not
constitute evidence within the normal bounds of the Rules of Evidence, those
rules are not applicable at a temporary custody hearing. See SDCL 267A34
(stating that the Rules of Civil Procedure apply to adjudicatory hearings, but that
all other juvenile hearings are to be conducted to inform the court of the status of
the child and to ascertain the child's history, environment, and condition); SDCL
267A56 (stating that the Rules of Evidence apply to adjudicatory hearings, but
that all other juvenile hearings are to be conducted under rules prescribed by the
court to inform it of the status of the child and to ascertain the child's history,
environment and condition). Therefore, the police report and affidavit provided
sufficient evidence of a need for temporary custody to permit the trial courts to
proceed here.
Cheyenne River, 2012 S. D. 69, 12 (emphasis added).
The material factual conclusion that the 48-hour hearing is an evidentiary hearing led
the Court to find that Judge Davis does not permit Indian parents to present evidence opposing
the States petition for temporary custody; that Judge Davis prevents Indian parents from cross
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examining witnesses who support the petition; and that Judge Davis does not require the States
Attorney or DSS to call witnesses to support removal of the children or permit testimony on
immediate risk of harm if the children are returned to the parents. (Docket 150, at 26.)
The importance of pointing out this material factual error cannot be understated. Such
error led to this Court to conclude that Judge Daviss authority in conducting 48-hour hearings
was as a policy maker, which, as discussed above, he is not.
CONCLUSION
Because Judge Davis decisions in 48-hour hearings are subject to review before the
South Dakota Supreme Court by statute, as well as extraordinary measures, he is not, and cannot,
be a final policymaker under Monell. In this case, through SDCL 15-26A-3(4) and (6), SDCL
15-26A-13, and other extraordinary remedies, the South Dakota Supreme Court has retained the
authority to measure [Judge Davis] conduct for conformance with [its] policies. Praprotnik,
485 U.S. at 127. Accordingly, Judge Davis respectfully requests the Court reconsider its order
on Plaintiffs Motions for Partial Summary Judgment (Docket 150).
Dated this 27th day of April, 2015.
/s/ Nathan R. Oviatt
Special Assistant Attorney General
Nathan R. Oviatt
GOODSELL QUINN, LLP
246 Founders Park Dr., Suite 201
P.O. Box 9249
Rapid City, SD 57709-9249
Tel: (605) 343-3000
And,
Steven Blair, Assistant Attorney General
Ann Mines-Bailey, Assistant Attorney General
Attorney Generals Office
1302 E. Highway 14, Suite 1
Pierre, S.D. 57501
Tel: (605)-773-3215
Attorneys for Hon. Jeff Davis
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CERTIFICATE OF SERVICE
I hereby certify that on the 27th day of April, 2015, I electronically filed the foregoing
document with the Clerk of the Court for the United States District Court for the Western
Division by using the CM/ECF system. Participants in the case who are registered CM/ECF
users will be served by the CM/ECF system.
GOODSELL QUINN, LLP

BY: /s/
Nathan R. Oviatt
Nathan R. Oviatt
P.O. Box 9249
Tel: (605) 343-3000
[email protected]
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WESTERN DIVISION
OGALALA SIOUX TRIBE and
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C13-5020
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) JUDGE DAVIS MOTION TO ALTER,
) AMEND, OR RECONSIDER PURSUANT
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TO RULE 59 or RULE 60
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Plaintiffs,
v.
Defendants.
Defendant Honorable Jeff Davis, through his undersigned attorneys of record, hereby
moves the Court to reconsider, pursuant to Rule 59, or alternatively Rule 60 of the Federal Rules
of Civil Procedure, the Courts Order Granting Plaintiffs Motions for Partial Summary
Judgment (Docket 150), as follows:
1.
Defendant Honorable Jeff Davis moves this Court pursuant to Rule
59(a)(2) to amend the findings of fact and conclusions of law in its March 30,
2015, Order (Docket 150) and enter a new Order or to alter or amend the Order
for
reasons
stated
in
the
Memorandum
of
Law
in
Support
filed
contemporaneously with this Motion. In addition, or in the alternative;

2.
Defendant Honorable Jeff Davis moves the Court pursuant to Rule 60 for
relief from the Order for reasons stated in the Memorandum of Law in Support
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filed contemporaneously with this Motion.

Dated this 27th day of April, 2015.
/s/ Nathan R. Oviatt
Nathan R. Oviatt
GOODSELL QUINN, LLP
P.O. Box 9249
Tel: (605) 343-3000
And,
Steven Blair, Assistant Attorney General
Ann Mines, Assistant Attorney General
Attorney Generals Office
1302 E. Highway 14, Suite 1
Pierre, S.D. 57501
Tel: (605)-773-3215
Attorneys for Hon. Jeff Davis
I hereby certify that on the 27th day of April, 2015, I electronically filed the foregoing
document with the Clerk of the Court for the United States District Court for the Western
Division by using the CM/ECF system. Participants in the case who are registered CM/ECF
users will be served by the CM/ECF system.
GOODSELL QUINN, LLP

BY: /s/
Nathan R. Oviatt
Nathan R. Oviatt
P.O. Box 9249
Tel: (605) 343-3000
[email protected]

WESTERN DIVISION
OGLALA SIOUX TRIBE and ROSEBUD
SIOUX TRIBE, as parens patrie, to protect
the rights of their tribal members;
MADONNA PAPPAN, and LISA YOUNG,
individually and on behalf of all other
persons similarly situated,
Plaintiffs,
v.
LUANN VAN HUNNIK; MARK VARGO;
HON. JEFF DAVIS; and LYNNE A.
VALENTI in their official capacities.
Defendants.
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Case No.: 13-5020
________________________________________________________________________________________________________
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO RECONSIDER

________________________________________________________________________________________________________
Robert L. Morris, attorney for LuAnn Van Hunnik, Regional Manager for the South
Dakota Department of Social Services Division of Child Protection Services offices in Region 1,
Pennington County, Rapid City, South Dakota, and Lynne A. Valenti, Secretary of the South
Dakota Department of Social Services, submits this Memorandum of Law in Support of Motion
to Reconsider.
A.
FRCP 59 and 60 Standards

Rule 59(e) allows a party the right to move a court to alter or amend a judgment no later
than 28 days after the entry of the judgment. Fed.R.Civ.P. 59(e). Rule 60 allows a court to
correct a clerical mistake or a mistake arising from an oversight or omission whenever one is
found in a judgment, order, or other part of the record. Rule 60(b)(1) allows for relief for
mistake, as long as the motion is made within one year. Rule 60(b)(6) allows for relief for any
other reason that justifies relief. Movants challenging a judgment pursuant to Rule 60(b)(6)
must do so within a reasonable time after entry of the judgment or order.
The Federal Rules of Civil Procedure do not mention motions to reconsider. The Eighth
Circuit has instructed courts to consider such motions either under Rule 59(e) or Rule 60(b). Alliance
Communs. Coop., Inc. v. Global crossing Telecomms., Inc., 690 F.Supp.2d 889, 893 (D. S.D.
2010)(citing Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir. 1988); and Hagerman v. Yukon
Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)(other citations omitted). Rule 59(e) refers to entry
of judgment, but some authority indicates that a district court may entertain a Rule 59(e) motion
before the entry of final judgment on a separate document. Id. Motions for reconsideration serve a
limited function: to correct manifest errors of law or fact or to present newly discovered evidence. Id.
District courts have broad discretion in determining whether to grant a motion for reconsideration.
Id.
B.
Basis for the Motion and Relief Sought

Ms. Valenti and Ms. Van Hunnik seek relief from the Courts March 30, 2015 Order.
[Document 150]. In the Order, the Court first focused on the Plaintiffs claims that Judge Davis
allegedly initiated six policies, practices, and customs for 48-hour hearings which allegedly
violate the Due Process Clause and ICWA. [Document 150, pg. 24]. The Court then focused
upon claims that the Defendants allegedly have violated the Due Process Clause since January
1, 2010 in five different areas. [Document 150, pg. 36].
As to Judge Daviss alleged policies, the Court imposed liability as a matter of law upon
Ms. Valenti and Ms. Van Hunnik for acquiescing or ratifying Judge Daviss alleged policies.
[Document 150, pg. 27]. As to the Due Process claim, the Court determined that judgment as a
matter of law against the Defendants would be entered. [Document 150, pg. 42].
Ms. Valenti and Ms. Van Hunnik assert that factual and legal errors exist as to their
liability. This motion is made to correct those errors and to ask the Court to reconsider its
rulings and to deny the Plaintiffs motions as to Ms. Valenti and Ms. Van Hunnik.
C.
Factual Errors in the Order

Summary judgment is appropriate when there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A properly
supported motion for summary judgment is not defeated by self-serving affidavits. Rather, the
plaintiff must substantiate allegations with sufficient probative evidence that would permit a
finding in the plaintiff's favor. Frevert v. Ford Motor Co., 614 F.3d 466, 47374 (8th Cir.
2010). But, a court must view the evidence in the light most favorable to the opposing party.
Tolan v. Cotton, U.S. , 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam)
(By weighing the evidence and reaching factual inferences contrary to Tolan's competent
evidence, the court below neglected to adhere to the fundamental principle that at the summary
judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.
(emphasis added)). Chavero-Linares v. Smith, __ F.3d __; No. 13-3532, 2015 WL 1610223, at
*2 (8th Cir. April 13, 2015).
In the Courts March 30, 2015 Order [Document 150] there are certain factual 1 errors
contained therein which these movants believe are material to the case and its eventual outcome
as to these movants. Ms. Valenti and Ms. Van Hunnik respectfully submit that material factual
In the Courts Order [Document 150] the Court indicated that the facts material to Plaintiffs motions are as
follows and then proceeded to recite the material facts prior to engaging in legal analysis. [Document 150, pgs. 10
-22]. As it is apparent that the Courts legal analysis was based upon the material facts cited, it is important to
address errors in the material facts as such errors do affect the legal analysis.
errors exist and the Court reached factual inferences by weighing the evidence contrary to
competent evidence submitted by the SDDSS Defendants.
1.
CPS Employees Do Not Prepare a Petition for Temporary Custody.
In the Order, it is stated CPS employees under policy guidance from and the supervision
of Ms. Valenti and Ms. Van Hunnik prepare a petition 2 for temporary custody and sign an
Indian Child Welfare Act affidavit . . . . [Document 150, pg. 3 emphasis supplied]. The
Order also states . . . . CPS employees under their supervision prepared petitions for temporary
custody . . . . [Document 150, pg. 11 emphasis supplied].
CPS employees do not prepare the petitions for temporary custody. The States
Attorneys office prepares a Petition for Temporary Custody and temporary custody paperwork.
[Document 132-1, 79; 132-26, 32]. This material factual conclusion is erroneous and
unsupported by the existing record.
2.
The ICWA Affidavit and Hearing Transcript Issues 3.
The Court acknowledged that it was DSS practice, prior to June 2012, to provide a copy
of the ICWA Affidavit to parents who attended the 48-hour hearing. The Court also
acknowledged the existence of DSSs written policy, since June 2012, to provide the ICWA
Affidavit to parents attending the hearing. [Document 150, pg. 13].
This was an allegation in the Complaint [Document 1, 51] but the materials filed in response to the Plaintiffs
motions showed such allegation not to be accurate.
Incorporated herein by this reference is also Document 137-1 which the undersigned filed with a Motion to Defer
Ruling. [Document 137]. Generally speaking, certain Tribal Orders contained Findings of Fact and Conclusions of
Law that children transferred by the Oglala Sioux Tribe were in imminent danger and should not be returned to their
parents. The Court determined that the Motion to Defer was moot in light of its March 30, 2015 Order. [Document
150, pg. 45]. Since that date, a Motion to Compel Discovery regarding certain Tribal Court and ONTRAC files has
been filed. [Document 156]. In one representative case, the Tribal Order found that the child was in imminent
danger and should not be returned to custody of the parent 46 days after the 48-hour hearing. [Document 156, pgs. 4
-6]. This information would have been probative and relevant in deciding the factual and legal issues applicable to
the Plaintiffs motions.
The Court then cited specifically to hearing transcripts 4 in A10-1119; A10-1320; A11497; A12-36; A12-571; A13-20; and A13-49. This citation was apparently for two purposes
that the parents did not have notice of why their children were removed from their custody and
that the transcript failed to indicate that the parents were in actual physical receipt of the ICWA
Affidavit.
As to the alleged lack of notice as to why the children were removed from the custody of
the parents, the parents could not claim ignorance of the situation. For instance, in each of the
hearing transcripts specifically cited by the Court, the ICWA Affidavits 5 indicate generally 6:
A10-1119:
A10-1119; BS# GQ2954 2956: Child has been diagnosed with PKU (phenylketonuria)
and will suffer severe brain damage if not cared for properly. Parents have been
unwilling or unable to give her the best care to ensure brain damage will not occur.
[Document 132-1, pg. 18]
A10-1320:
A10-1320; BS# GQ2389 2391: Mother and Father continue to involve Children in
domestic abuse situations. Father is an alcoholic and becomes out of control when he is
intoxicated. Mother allows Father in the home and around the children when he is
intoxicated.
A11-497:
A11-497; BS# GQ3264 3266: Child was brought to the hospital with injuries
sustained to his head resulting in a fractured skull and subdural hematoma. Childs injury
was the result of being struck in the head by Father, who was intoxicated. Mother stated
The Plaintiffs filed 57 transcripts of 48-hour hearings under seal as Exhibit 1. [Document 111, 2].
The Plaintiffs filed 45 ICWA Affidavits under seal as Exhibit 7. [Document 111, 8]. Each of these affidavits has
the Court File number on it and bates stamps for discovery identification.
6
A general description of the contents of each ICWA Affidavit filed by the Plaintiffs is contained in Document 1321, pgs. 16 23.
to law enforcement she does not want to press charges on Father for causing injury to
Child.
A12-36:
A12-36; BS# GQ2960 2962: Mother was arrested and incarcerated for a warrant for
No Drivers License. Mothers arrest rendered her unable to care for Child, and law
enforcement felt there were no appropriate caretakers for Child. Father lives in Kyle and
has little contact with Child.
A12-571:
A12-571; BS# GQ2519 2521: Child was present during an assault between Mother
and Mothers boyfriend, at which time Mother was arrested for Simple Assault Domestic
Violence. There is a history of domestic violence between Mother and Mothers
boyfriend and this was the second law enforcement response within five days.
A13-20:
A13-20; BS# GQ3380 3382: Father was arrested for DUI, No Drivers License, No
Seatbelt, No Child Seatbelt, Ingestion and Possession of Marijuana. Mother was arrested
for an outstanding warrant and ingestion. Children were in the vehicle when Father and
Mother were arrested.
A13-49:
A13-49; BS# GQ3402 3404: Mother and Father were intoxicated and arrested. The
whereabouts of Other Father are unknown.
[Document 132-1, pg. 22].
As can be seen, the parent or parents from whom the children were removed had actual
knowledge of the reason(s) the children were removed by law enforcement from their custody.
It would appear that the Court made a conclusion that parents in the cited transcripts did
not receive the ICWA Affidavit either because the Tribes counsel (who also represents the
Plaintiffs in this action) made comments in the hearing transcript that the parent allegedly did
not receive the document, or that the transcript omits reference to the parent actually receiving
the ICWA Affidavit. No affidavits were provided indicating that ICWA Affidavits were not
provided to the parents by a DSS representative. In sum, there was no competent evidence in the
summary judgment materials reviewed by the Court. See Adickes v. S.H. Kress & Co., 398 U.S.
144, 158 n. 17, 90 S. Ct. 1598, 26 L.Ed.2d 142 (1970) (unsworn statements are not admissible at
summary-judgment stage of proceedings); Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962,
96869 (6th Cir.1991) (court may not consider unsworn statements when ruling on motion for
summary judgment).
Lastly, the Court goes on to conclude that the Deputy States Attorney, DSS or the Judge
failed to contradict the alleged statements of the parents or the Tribes counsel or recess the
proceedings for the purpose of reviewing the ICWA Affidavit or Petition for Temporary
Custody. [Document 150, pg. 15]. Again, respectfully speaking, this is a factual conclusion
reached by the Court after weighing the evidence. The Court weighed the evidence due to the
omission in the transcript and made a conclusion by omission.
3.
Valenti and Van Hunnik Understand 48-Hour Hearings are Intended to be

Evidentiary Hearings 7.
The Court made a material factual conclusion that Defendants Vargo, Valenti and Van
Hunnik understand 48-hour hearings are intended to be evidentiary hearings. [Document 150,
pg. 26]. There was no competent evidence in the record that could lead to such a conclusion.
7
This factual conclusion is not contained in the material facts expressed by the Court but instead contained in the
legal analysis portion of Order. [Document 150, pg. 26]. Because there is no competent evidence in the record as to
what Valenti or Van Hunnik understands regarding this issue, it will be addressed.
The Courts reference to evidentiary hearing would seem to indicate that such a hearing is akin
to an adjudicatory hearing 8 under South Dakota law. Such is not the case.
In Cheyenne River Sioux Tribe v. Davis, 2012 S. D. 69, 822 N.W.2d 62, one of the issues
addressed was the Tribes assertion that there was a violation of state law in the [48-hour
hearing] based upon an alleged lack of evidence of a need for temporary custody as required by
SDCL 26-7A-18. Cheyenne River Sioux Tribe, 2012 S.D. 69, 12. Essentially the Tribe was
claiming there was no evidentiary hearing in the sense that there was no evidence presented to
the Court for purposes of continued temporary custody. In rejecting the Tribes assertion, the
South Dakota Supreme Court stated:
. . . . Tribe ignores, however, that the temporary custody hearing proceeded on
State's petition for temporary custody and the accompanying police report and
ICWA affidavit from a DSS specialist. The report and affidavit set forth facts
concerning the need for temporary custody. While these documents might not
constitute evidence within the normal bounds of the Rules of Evidence, those
rules are not applicable at a temporary custody hearing. See SDCL 267A34
(stating that the Rules of Civil Procedure apply to adjudicatory hearings, but that
all other juvenile hearings are to be conducted to inform the court of the status of
the child and to ascertain the child's history, environment, and condition); SDCL
267A56 (stating that the Rules of Evidence apply to adjudicatory hearings, but
that all other juvenile hearings are to be conducted under rules prescribed by the
court to inform it of the status of the child and to ascertain the child's history,
environment and condition). Therefore, the police report and affidavit provided
sufficient evidence of a need for temporary custody to permit the trial courts to
proceed here. [Emphasis added].
Cheyenne River Sioux Tribe v. Davis, 2012 S. D. 69, 12 822 N.W.2d 62.
Such material factual conclusion led the Court to find that Judge Davis does not permit
Indian parents to present evidence opposing the States petition for temporary custody; that
Judge Davis prevents Indian parents from cross examining witnesses who support the petition;
"Adjudicatory hearing" a hearing to determine whether the allegations of a petition alleging that a child is abused
or neglected are supported by clear and convincing evidence or whether the allegations of a petition alleging a child
to be in need of supervision or a delinquent are supported by evidence beyond a reasonable doubt. SDCL 26-7A1(2). The Rules of Civil Procedure apply to adjudicatory hearings. SDCL 26-7A-34(1).
and that Judge Davis does not require the States Attorney or DSS to call witnesses to support
removal of the children or permit testimony on immediate risk of harm if the children are
returned to the parents. [Document 150, pg. 26].
The importance of pointing out this material factual error cannot be understated. Such
error led to this Court to conclude that Judge Daviss authority in conducting 48-hour hearings
was as a policy maker. Which in turn led this Court to conclude that when Vargo, Valenti, and
Van Hunnik did not challenge Judge Daviss alleged policies his policies became the
official policy governing the Pennington County States Attorney and the South Dakota
Department of Social Services. But there was no policy of Judge Davis for Vargo, Valenti,
and Van Hunnik to challenge, so it could not become the official policy of the Pennington
County States Attorney and the South Dakota Department of Social Services.
The procedure regarding evidence at a 48-hour hearing has been expressed by the
South Dakota Supreme Court in Cheyenne River Sioux Tribe v. Davis, 2012 S. D. 69, 822
N.W.2d 62. Cheyenne River Sioux Tribe 9 and the applicable statutory law expressed the rule of
law which was to be followed at the 48-hour hearing.
D.
Legal Errors
1.
The Order
The Courts Order [Document 150] determined the liability of Valenti and Van Hunnik
for two reasons. One, the Court concluded Valenti and Van Hunnik were final policy makers.
Second, the Court concluded that because Valenti and Van Hunnik did not challenge Judge
Request is made to the Court to take judicial notice that the Tribe did not appeal the South Dakota Supreme
Courts decision to the U.S. Supreme Court. Thus, this Courts decision effectively overrules Cheyenne River Sioux
Tribe v. Davis, 2012 S. D. 69, 822 N.W.2d 62 and violates the Rooker-Feldman doctrine. The RookerFeldman
doctrine prohibits lower federal courts from exercising appellate review of state court judgments. Rooker v. Fidelity
Trust Co., 263 U.S. 413, 416 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).
Daviss alleged policies, the alleged policies became the official policy governing the State of
South Dakota and the Department of Social Services (State/DSS). In essence, Valenti and Van
Hunnik in their official capacities acquiesced and ratified Judge Daviss alleged policies.
Omitted from the Court Order is any material fact determination or legal conclusion (1)
that the State/DSS had an official policy or custom that caused a constitutional violation; and (2)
that the State/DSS official policy or custom that caused a constitutional violation was the moving
force behind the violation. In addition, the Court adopted the Plaintiffs assertion that Valenti
and Van Hunnik were final policy makers, without any factual or legal analysis asserted by the
Plaintiffs as required by applicable law.
2.
The Summary Judgment Motions Should Have Been Denied as to Ms.

Valenti and Ms. Van Hunnik.
a.
There is no Evidence or Claim in the Motions for Summary Judgment

That the State/DSS had an Official Policy or Custom Which
Violated the Plaintiffs Rights.
In the Plaintiffs summary judgment submissions, they submitted no evidence of, nor did
Plaintiffs identify, an official policy of the State/DSS involving a deliberate choice to follow a
course of action made among various alternatives by an official who has the final authority to
establish governmental policy. See, Jane Doe A by and through Jane Doe B v. Special School
Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th Cir. 1990). Also, the Courts Order [Document
150] does not address or identity any such official policy.
Plaintiffs summary judgment submissions fail to proffer or identify the existence of any
governmental custom by the State/DSS. There was no evidence or proffer of: the existence of
a continuing, widespread, persistent pattern of constitutional misconduct by the governmental
entitys employees and deliberate indifference to or tacit authorization of such conduct by the
governmental entities policy-making officials after notice to the officials of that misconduct.
10
Most importantly, there was no evidence or proffer that the Plaintiffs were injured by any
governmental custom that was the moving force behind any alleged constitutional violation.
See Jane Doe A by and through Jane Doe B v. Special School Dist. of St. Louis Cnty., 901 F.2d
642, 645 (8th Cir. 1990). Also, the Courts Order [Document 150] does not address or identity
any such official policy, or address and identity any such governmental custom or a
determination that the governmental custom was the moving force behind any alleged
violation of law.
Therefore, any grant of summary judgment to the Plaintiffs as against Ms. Valenti or Ms.
Van Hunnik, is in error based upon the lack of evidence, proof, or identification of an official
policy or governmental custom of the State/DSS.
b.
The Plaintiffs Asserted a Legal Conclusion that Ms. Valenti and Ms.
Van Hunnik Were Policy Makers Which Led This Court to Adopt the
Plaintiffs Legal Conclusion Without Any Legal Analysis or
Authority.
The policy maker term arose from Monell due to the use of the term official policy
and was addressed more definitively in Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). The
U.S. Supreme Court noted that The official policy requirement was intended to distinguish
acts of the municipality from acts of employees of the municipality, and thereby make clear that
municipal liability is limited to action for which the municipality is actually responsible. Monell
reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts of
the municipality that is acts which the municipality has officially sanctioned or ordered.
Pembaur, 475 U.S. at 480 481. [emphasis in original].
The Pembaur Court went on to discuss that municipal liability may be imposed for a
single decision by municipal policymakers under appropriate circumstances, when action is
taken once or repeatedly. Pembaur, 475 U.S. at 480 481. The Court then went on to
11
emphasize that not every decision by municipal officers automatically subjects the municipality
to liability. Of import was the holding that:
. . . . Municipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered. The
fact that a particular official even a policymaking official has discretion in the
exercise of particular functions does not, without more, give rise to municipal
liability based on an exercise of that discretion. [citation omitted]. The official
must also be responsible for establishing final government policy respecting such
activity before the municipality can be held liable . . . .
Pembaur v. City of Cincinnati, 475 U.S. 469, 481 482 (1986).
Final policy making authority is determined by whether an official has the authority to
make official policy or custom regarding the action alleged to have caused the particular
constitutional violation at issue. Schlimgen v. City of Rapid City, 83 F.Supp.2d 1061, 1067 (D.
S.D. 2000). Whether an individual is a final policy maker is a question of law to be resolved by
the trial judge. Id.(citing, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)). Relevant legal
materials, including state and local law, as well as custom and usage having the force of law,
must be considered by the trial judge while identifying those officials or governmental bodies
who speak with final policymaking authority for the local governmental actor concerning the
action alleged to have caused the particular constitutional or statutory violation at issue.
Schlimgen, at 1067.
In this case, the Plaintiffs asserted no evidence or legal argument with relevant
materials to address whether Ms. Valenti or Ms. Van Hunnik were final policy makers.
Plaintiffs merely offered a legal conclusion that they were final policymakers and
unfortunately created the situation where the Court accepted that conclusion without addressing
any relevant legal materials or identifying those officials or governmental bodies who speak
with final policy making authority.
12
Therefore, any conclusion that Ms. Valenti and/or Ms. Van Hunnik are final
policymakers is in error and the summary judgment motions should have been denied.
c.
Even if Ms. Valenti and/or Ms. Van Hunnik are Policymakers,

They Could Not Acquiesce or Ratify Judge Daviss Alleged
Policies as He is Not a Subordinate to Ms. Valenti and/or Ms.
Van Hunnik.
The Courts Order [Document 150] contains no liability determination as against

Ms. Valenti and Ms. Van Hunnik except as follows:
. . . . There is no evidence any one of these three defendants [Vargo, Valenti, and
Van Hunnik] or their courtroom representatives, Deputy States Attorneys or case
workers sought to change the practices established by Judge Davis. When these
defendants did not challenge Judge Davis policies for conducting 48-hour
hearings, his policies became the official policy governing their own agencies.
Coleman v. Watt, 40 F.3d 255, 261 (8th Cir. 1994). [B]y acquiescence in a long
standing practice of Judge Davis which constitutes the standard operating
procedure of the Seventh Circuit Court, these defendants [Vargo, Valenti, and
Van Hunnik] exposed themselves to liability. Jett, 491 U.S. at 37.
Order [Document 150, pgs. 26 27.]
Coleman v. Watt, 40 F.3d 255 (8th Cir. 1994), was an appeal to the Eighth Circuit from a
motion to dismiss by the District Court for failure to state a claim. The Eighth Circuit reversed
and remanded. Coleman, 40 F.3d at 257. Part of Colemans claim surrounded his allegation that
Municipal Judge Watt, Municipal Court, Traffic Division, issued an Order directing the
officers of the Little Rock Police Department to impound vehicles for certain state statute
violations. Id. Due to the Order Colemans car was impounded and he ultimately sued
Municipal Judge Watt and the City of Little Rock. Coleman, 40 F.3d at 258.
Relevant to this matter, the Eighth Circuit, in Coleman at pg. 262, stated:
We need not decide whether a municipal court judge acts as an official
policymaker for the City of Little Rock because Coleman has alleged that both the
City and its chief of police adopted Judge Watt's general order as an official
13
policy governing the conduct of the Little Rock Police Department. The police
chief is alleged to be an official policymaker for the City of Little Rock.
*********
. . . . To recover on his claimed due process violation, Coleman must meet his
burden of proof on each of these assumptions: He must prove that the chief of
police or some other official policymaker adopted Judge Watt's order as an
official policy, and that the execution of that policy in fact caused his asserted
injury. . . . .
Coleman v. Watt, 40 F.3d 255, 262 (8th Cir. 1994).
With due respect to the Court, nothing in the cited case stands for the proposition of law
that liability flows to Ms. Valenti and/or Ms. Van Hunnik for not challenging Judge Daviss
alleged policies, or that by not challenging his alleged policies, the alleged policies became the
official policy governing the State/DSS.
The Court goes on to find that Ms. Valenti and Ms. Van Hunnik exposed themselves to
liability by acquiescence, citing Jett v. Dallas Independent School District, 491 U.S. 701, 737
(1989). The context of Jett is discovered by reviewing City of St. Louis v. Praprotnik, 485 U.S.
112 (1988).
It is clear that liability for acquiescence or ratification, can only be done by a policymaker
regarding a subordinate within that policymakers entity. This conclusion is buttressed by the
Praprotnik Court recognizing that the Pembaur Court recognized that the authority to make
policy is necessary to the authority to make final policy. City of St. Louis v. Praprotnik, 485
U.S. 112 (1988). [emphasis in original]. Praprotnik further holds that a municipality can be
liable for an isolated constitutional violation if the final policy maker ratified a subordinates
action. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
It should be obvious and go without saying - even assuming that Ms. Valenti and/or Ms.
Van Hunnik are final policy makers - Judge Davis is not a subordinate of Ms. Valenti and/or Ms.
14
Van Hunnik. If he is not a subordinate, Ms. Valenti and/or Ms. Van Hunnik cannot ratify his
actions.
Therefore, the Court committed legal error in determining that Ms. Valenti and Ms. Van
Hunnik exposed themselves to liability for acquiescing or ratifying Judge Daviss alleged
policies.
d.
The Courts Conclusion That Defendants Violated Plaintiffs Due

Process Rights Does Not Describe What Conduct of Ms. Valenti and
Ms. Van Hunnik Caused the Alleged Violation of Due Process and
There is no Continuing Violation of Federal Law
The Due Process allegations were lumped against the Defendants by the Plaintiffs and
the Court addressed the Due Process issue also by collectively referring to the Defendants and
concluding the Defendants violated the Plaintiffs due process rights. The Court also did not
specifically address what alleged policies, alleged customs, or alleged conduct of Ms. Valenti
and Ms. Van Hunnik caused them to be liable for the alleged due process violations.
This is important as the Court apparently intends to issue an injunction against Ms.
Valenti and Ms. Van Hunnik, in their official capacities, for prospective injunctive relief to
prevent future violations of federal law. See, Ex Parte Young, 209 U.S. 123. The Court points
to no policies or customs of DSS that lead to liability of Ms. Valenti and/or Ms. Van Hunnik. If
the conduct is that those under Ms. Valentis and Ms. Van Hunniks supervision prepare the
Petition for Temporary Custody and fail to provide it to the parents, that conduct has been shown
to be incorrect. DSS case workers do not prepare the Petition for Temporary Custody. If the
conduct is that DSS case workers do not provide a copy of the ICWA Affidavit to parents, there
is no competent evidence or proof of any such conclusion. The DSS written policy indicates
otherwise.
15
All that would remain is that Ms. Valenti and Ms. Van Hunnik are vicariously liable for
Judge Daviss alleged conduct. Yet, such conclusion would be in error as the Eighth Circuit in
Parrish v. Ball, 594 F.3d 993, (8th Cir. 2010) stated:
Because vicarious liability is inapplicable to ... 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official's own
individual actions, has violated the Constitution. Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009). Thus, each Government
official, his or her title notwithstanding, is only liable for his or her own
misconduct. Id. at 1949. As we have held, a supervising officer can be liable for
an inferior officer's constitutional violation only if he directly participated in
the constitutional violation, or if his failure to train or supervise the offending
actor caused the deprivation. Otey v. Marshall, 121 F.3d 1150, 1155 (8th
Cir.1997) (quoting Tilson v. Forrest City Police Dep't, 28 F.3d 802, 806 (8th
Cir.1994)); see also Wever v. Lincoln County, 388 F.3d 601, 60607 (8th
Cir.2004).(footnote omitted). [emphasis supplied].
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010).
Lastly, none of the factual or legal justification for the Courts decision indicates that Ms.
Valenti and/or Ms. Van Hunnik, or individuals under their supervision, are engaging in ongoing
or continuing violations of federal law. Injunctive relief is unavailable when there is no
continuing violation of federal law. Green v. Masour, 474 U.S. 64, 70 (1985). In addition, since
there is no ongoing or continuing violation of federal law that can be attributed to Ms. Valenti
and/or Ms. Van Hunnik, a declaratory judgment as to them would also be improper. Green, 474
U.S. at 72 73.
Therefore, as there is no appropriate factual or legal finding of conduct on the part of Ms.
Valenti and/or Ms. Van Hunnik which allegedly violated the Plaintiffs due process rights, the
Plaintiffs motions should have been denied.
16
E.
Conclusion
Ms. Valenti and Ms. Van Hunnik would respectfully request the factual errors addressed
above be remedied by the Court. Once those factual errors are remedied, it is respectfully
requested that the errors of law addressed above be also remedied and that the Court issue an
Order denying the Plaintiffs motions as to Ms. Valenti and Ms. Van Hunnik.
Dated: April 27, 2015
MORRIS LAW FIRM, Prof. LLC
Attorneys for LuAnn Van Hunnik and Lynne A.
Valenti
By :
/s/ Robert L. Morris

Robert L. Morris
117 5th Avenue, PO Box 370
Belle Fourche, SD 57717-0370
(605) 723-7777
[email protected]
17
I hereby certify that on the 27th day of April, 2015, I electronically filed
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO RECONSIDER with the
Clerk of the Court for the United States District Court for the Western Division by using the
CM/ECF system. Participants in the case who are registered CM/ECF users will be served by
the CM/ECF system.
By: /s/ Robert L. Morris
18

WESTERN DIVISION
SIOUX TRIBE, as parens patrie, to protect
the rights of their tribal members;
MADONNA PAPPAN, and LISA YOUNG,
Plaintiffs,
v.
HON. JEFF DAVIS; and LYNNE A.
VALENTI in their official capacities.
Defendants.
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Case No.: 13-5020
________________________________________________________________________________________________________
FRCP RULE 59 and/or FRCP RULE 60 MOTION TO RECONSIDER

________________________________________________________________________________________________________
Robert L. Morris, attorney for LuAnn Van Hunnik, Regional Manager for the South
Dakota Department of Social Services Division of Child Protection Services offices in Region 1,
Pennington County, Rapid City, South Dakota, and Lynne A. Valenti, Secretary of the South
Dakota Department of Social Services, submits this Motion to Reconsider as follows:
1. Ms. Valenti and Ms. Van Hunnik move the Court pursuant to Rule 59(a)(2) to amend the
findings of fact and conclusions of law in its March 30, 2015, Order [Document 150] and
enter a new Order or to alter or amend the Order for the reasons as stated in
Memorandum of Law in Support of Motion filed contemporaneous with this Motion. In
addition, or in the alternative;
2.
Ms. Valenti and Ms. Van Hunnik move the Court pursuant to Rule 60 for relief from the
Order for the reasons as stated in Memorandum of Law in Support of Motion filed
contemporaneous with this Motion.
Dated: April 27, 2015
MORRIS LAW FIRM, Prof. LLC
Attorneys for LuAnn Van Hunnik and Lynne A.
Valenti
By :
/s/ Robert L. Morris

Robert L. Morris
117 5th Avenue, PO Box 370
Belle Fourche, SD 57717-0370
(605) 723-7777
[email protected]
I hereby certify that on the 27th day of April, 2015, I electronically filed FRCP RULE 59
and/or FRCP RULE 60 MOTION TO RECONSIDER with the Clerk of the Court for the
United States District Court for the Western Division by using the CM/ECF system. Participants
in the case who are registered CM/ECF users will be served by the CM/ECF system.
By: /s/ Robert L. Morris

WESTERN DIVISION
Case No.: 13-5020
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Mark Vargos Memorandum in
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Support of his Motion to Alter,
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Amend
or Reconsider Pursuant to
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Rule 59 or Rule 60
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OGLALA SIOUX TRIBE and

Plaintiffs,
v.
Defendants.
INTRODUCTION.
In a three-claim complaint, plaintiffs sued Pennington County States
Attorney Mark Vargo. Plaintiffs asserted that Vargos policies, practices and
procedures relating to the removal of Native American children from their
homes during state court 48-hour hearings violate the Indian Child Welfare
Act (ICWA) and the Due Process Clause of the Fourteenth Amendment.
Plaintiffs complaint demands relief based only upon 42 U.S.C. 1983. To
state a claim under 1983, a plaintiff must allege the violation of a right
secured by the constitution and the laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of
state law. West v. Atkins, 487 U.S. 42, 48 (1988).
1
Vargo was only sued in his official capacity. A suit against a public
official in his official capacity is actually a suit against the entity for which
the official is an agent. Parish v. Bell, 594 F.3d 993, 997 (8th Cir. 2010).
But, the complaint does not allege that Vargo is an agent of a particular
entity. Plaintiffs first motion for partial summary judgment, though, states
that Vargo is the States Attorney for Pennington County. Document 110, p.
12. Accordingly, for purposes of this motion, Vargo assumes the claims
against him in his official capacity, as stated in the complaint, are suits
against Pennington County.1
Monell v. Department of Social Services, 436 U.S. 658, 694, (1978),
holds that the doctrine of respondeat superior may not be used to fasten
liability on a local government in a suit under section 1983. Gernetzke v.
Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir. 2001)(Judge
Posner analyzing municipal liability)(internal citations omitted). In order to
prevail on a Monell claim, plaintiffs must show that an injury [was] inflicted
because of execution of a governmental policy or custom, ether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
the official policy. Monell, 436 U.S. at 694. [M]unicipalities may be held
liable under 1983 only for acts for which the municipality itself is actually
responsible . . . . Eggar v. City of Livingston, 40 F.3d 312, 314 (9th Cir.
1994)(Donald P. Lay, Senior Judge of the Eighth Circuit Court of Appeals,
The undersigned will endeavor to refer to the defendant as Pennington County, not Mark
Vargo, unless specifically referencing Mr. Vargo as an individual.
sitting by designation in the Ninth Circuit). Put simply, municipalities are

liable as persons under section 1983, but only for their own unconstitutional
or illegal policies. Coleman v. Watt, 40 F.3d 255, 261 (8th Cir. 1994). But
also, Congress did not intend for a municipality to be liable under 1983
where causation is absent. Monell, 436 U.S. at 692.
RELIEF REQUESTED.
On March 30, 2015, the Court entered an order granting plaintiffs
motions (Docket 108 and 110) for partial summary judgment, concluding that
plaintiffs are entitle to injunctive and declaratory relief. Neither an
injunction, nor a declaratory judgment has yet issued. Pennington County
respectfully contends that the Courts order represents a manifest error of
law, requiring reconsideration or other relief under either Federal Rule of
Civil Procedure 59 or 60.
LEGAL STANDARD.
Rule 59(e) allows a party to move a court to alter or amend a judgment.
Rule 60 allows a court to correct a clerical mistake or a mistake arising from
an oversight or omission whenever one is found in a judgment, order, or other
part of the record. Rule 60(b)(1) allows for relief for mistake. Rule 60(b)(6)
allows for relief for any other reason that justifies relief.
The Federal Rules of Civil Procedure do not mention motions to
reconsider. The Eighth Circuit has instructed courts to consider such motions
either under Rule 59(e) or Rule 60(b). Alliance Communs. Coop., Inc. v. Global
crossing Telecomms., Inc., 690 F.Supp.2d 889, 893 (D. S.D. 2010)(citing
Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir. 1988); and Hagerman v. Yukon
Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)(other citations omitted). Rule
59(e) refers to entry of judgment, but some authority indicates that a district
court may entertain a Rule 59(e) motion before the entry of final judgment on a
separate document. Id. "Motions for reconsideration serve a limited function: to
correct manifest errors of law or fact or to present newly discovered evidence."
Id.
THE ORDER.
Pennington County seeks relief from the Courts Order dated March
30, 2015. In the order, the Court acknowledged plaintiffs allegation that
Davis initiated six policies which deprived plaintiffs of their constitutional
rights. The Court also acknowledged that plaintiffs only alleged that they
could maintain an action against Pennington County through Mark Vargos
acquiescence to Daviss policies. In accepting the plaintiffs argument, the
Court identified three reasons why Pennington County was liable:
1. Pennington County did not offer evidence that any Deputy States
Attorney sought to change any of the Daviss policies.
2. Pursuant to Coleman v. Watt, Pennington County failed to
challenge Judge Daviss policies, adopting Daviss policies as their
own.
3. Pursuant to Jett v. Dallas Indep. Sch. Dist., Pennington County
acquiesced to the policies of whatever entity Judge Davis was an
agent of, making those policies the standard operating procedure
of the Seventh Circuit Court.
Document 150, pp. 26-27.

DISCUSSION.
A. Defendants are not Final Policy Makers.
Here, the Court concluded that defendants are all final policy makers.
But the Court did not identify what municipality each defendant was a policy
maker for. Also, it is important to note that an individual might be a final
policy maker in respect to one function, but not another. See Pembaur v. City
of Cincinnati, 475 U.S. 469, 483, n. 12 (1986). Municipalities, spread
policymaking authority among various officers. Id. So, the fact that any of
the named-defendants is a policy maker isnt necessarily relevant to an
inquiry of liability under Monell.
The mere fact that a municipality enforces state law does not justify
imposition of 1983 municipal liability. Martin A. Schwartz, Section 1983
Litigation Claims and Defenses Volume 1B 7.9 (3d ed. 1997). Here, any
policy of Pennington County was nothing more than application of state law
as blessed by the South Dakota Supreme Court. See generally Cheyenne
River Sioux Tribe v. Davis, 2012 S.D. 69, 822 N.W.2d 62. Moreover, to the
extent that Vargo is an agent of the State of South Dakota, liability might be
rejected based on Will v. Mich. Dept. of State Police, 491 U.S. 58, 71
(1989)(holding that States are not proper parties under 1983). Thus,
Pennington County joins in the arguments of co-defendants as to analysis of
this issue. Since Judge Davis is not liable for purposes of 1983, then
5
Pennington County can not be liable under the Courts analysis. Thus,
Pennington County joins in Daviss arguments as to why he is not liable and
why certification to the South Dakota Supreme Court might be proper.
Pennington County argues that these issues represent manifest errors of law.
B. One Municipality cannot Acquiesce to the Policy of Another.
1. Pennington County has no Duty to Change or
Challenge Daviss Practices.
The Court first reasoned that Pennington County was responsible for
the plaintiffs alleged constitutional deprivations because [t]here was no
evidence any one of these defendants [Vargo, Valenti, and Van Hunnik] or
their courtroom representatives, Deputy States Attorneys or case workers
sought to change the practices established by Judge Davis. Document 150, p.
26. This represents a manifest error of law for two reasons.
First, the court improperly shifted the burden at summary judgment.
Pennington County was the non-moving party at this stage of litigation. The
Court must view the evidence in the light most favorable to the opposing
party. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)(per curiam). At this
stage of litigation, it is plaintiffs burden to establish the lack of a question of
a material fact, not the defendants burden to show that there is a question of
material fact.
Second, Pennington County is unaware of any legal authority holding
that municipal liability pursuant to 1983 attaches when a municipality,
through one of its agents, fails to change the practices established by a
6
judge in a courtroom. Indeed, other courts have held that municipalities

cannot be held liable under Monell for a section 1983 claim based solely on
the actions of its judges. Rodriguez v. City of New York, 2004 U.S. Dist.
LEXIS 3765; WL 444089 (S.D. N.Y. 2004)(citing Ledbetter v. City of Topeka
Kansas 318 F.3d 1183, 1190 (10th Cir. 2003); Eggar v. City of Livingston, 40
F.3d 312, 316 (9th Cir. 1994)(Judge Lay holding that judges failure to inform
indigent defendants of their right to counsel did not amount to municipal
policymaking); Woods v. City of Michigan City, 940 F.2d 275, 279 (7th Cir.
1991)(holding that judge was acting as part of state judicial system but not as
an official policymaker); and Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.
1985)(finding that city not liable for judges error merely because he is a
judge)).
Here though, there is no allegation that Davis is even an agent of
Pennington County. Indeed, the fact that he is separately named in his
official capacity seems to suggest that he is the agent of another entity, which
makes him less connected to Pennington County than a municipal judge
would be connected to a city. If a municipal judges actions does not give rise
to municipal liability, how can the actions of a non-municipal judge?
In Rodriguez, District Judge Shira Scheindlin concluded, Thus, even if
the judges actions amounted to that of a policymaker, the City would not be
liable under Monell. Rodriguez, 2004 U.S. Dist. LEXIS 3765 at *14. And
courts in this Circuit have held similarly. See Granda v, City of St. Louis,
2006 U.S. Dist. LEXIS 23037; 2006 WL 1026978 (E.D. Mo. 2006). In Granda,
a plaintiff sued a municipality and its municipal judge for violations of her
constitutional rights when the judge incarcerated her due to her daughters
truancy. The court determined that it was the judges
independent decision to incarcerate violators of the Truancy
Ordinance. Other judges who knew of [judges] conduct were no
more policy makers than the [judge]. Although the Mayor and
other judges allegedly knew of [judges] conduct, mere
awareness does not create a custom or policy on the part of the
[municipality]. Indeed, no city official including the Mayor or
other judges had control over [judges] judicial acts; they did not
have authority to stop [judge] from incarcerating persons who
violated the Truancy Ordinance. Under such circumstances, it
cannot be said that the Mayor and other judges were
deliberately indifferent to or tacitly authorized [judges] conduct
in such a manner as to create a custom or policy.
Id.(citing Russell v. Hennepin County, 420 F.3d 841,849 (8th Cir. 2005).
Here, like in Granda, Vargo and his courtroom deputies did not have
the authority to stop Judge Daviss conduct, regardless of whether or not it
was in violation of plaintiffs constitutional rights. And it is unclear why
Vargo or his deputies should have sought to change Judge Daviss practices,
when the South Dakota Supreme Court declined to reject Daviss practices in
Cheyenne River Sioux Tribe v. Davis. There is no authority to suggest that
Monell liability attaches to a county when its prosecutor fails to predict that
a federal court might interpret the practices of the judges they appear in
front of as violative of 1983. This is especially troublesome when a state
Supreme Court has previously declined to reject the practice at issue.
Accordingly, the Courts conclusion that Monell liability attaches to

Pennington County as a result of its States Attorneys Offices failure to seek
to change the practices established by the co-defendant is a manifest error
of law.
2. Reliance on Coleman is a Manifest Error of Law.
The Court also concluded that When [Valenti, Van Hunnik, and
Vargo] did not challenge Judge Daviss policies for conducting 48-hour
hearings, his policies became the official policy governing their own agencies.
Document 15, p. 26. To support this statement, the Court relies on Coleman
v. Watt, 40 F.3d 255, 262 (8th Cir. 1994). But Coleman does not stand for the
proposition that a municipal policy maker like Vargo always creates a policy
that fairly represents official policy of the municipality when she does not
challenge the policies of a non-municipal judge.
First, Coleman was a case at a different stage of litigation. In Coleman,
a plaintiff sued a municipal judge, Watt, and the City of Little Rock,
Arkansas. Here, plaintiffs have moved for summary judgment, but in
Coleman, defendants moved to dismiss. Coleman, at best, holds that the
possibility that a municipality adopted something its municipal judge did as
its own official policy is a sufficient reason to resist the municipalitys motion
to dismiss a plaintiffs Monell claim. It does not stand for the proposition
that, at summary judgment, a defendant municipality is liable as a matter of
law under Monell when one if its agentseven one with final policymaking
authorityis present when a state court judge violates an individuals

constitutional rights. Unlike the municipal judge in Coleman, Judge Davis is
not an agent of Pennington County, nor is he a subordinate of Vargo or his
deputies.
Second, the Coleman Court acknowledged that even though Coleman
survived the municipalitys motion to dismiss, he still faced several
evidentiary hurdles. Id. Particularly, the Coleman Court concluded that,
even though he survived the motion to dismiss, Coleman still needed to
establish that some policy maker actually did adopt the policy, and he would
need to prove that the execution of the policy actually caused his injury. At
summary judgment, Coleman is unhelpful to plaintiffs. Even if a Pennington
County policy maker could adopt, ratify or acquiesce to the final policy of
another entity, plaintiffs would still need to prove that Pennington Countys
execution of the adopted policy caused their injury. Here, causation has not
even been addressed. Without causation, liability can not attach to
Pennington County and an injunction is improper. In fact, injunctive relief
might be unavailable because there is no continuing violation of federal law
by Pennington County. See Green v. Masour, 474 U.S. 64, 71 (1985).
3. Reliance on Jett is a Manifest Error of Law.
The Court also held that [B]y acquiescence in a longstanding practice
of Judge Davis which constitutes the standard operating procedure of the
Seventh Circuit Court, these defendants exposed themselves to liability.
10
Document 150, p. 27 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
737 (1989)). The Courts reliance on Jett is misplaced. This is the pertinent
portion of Jett:
Once those officials who have the power to make official policy on a
particular issue have been identified, it is for the jury to determine
whether their decisions have caused the deprivation of rights at
issue by policies which affirmatively command that it occur, or by
acquiescence in a longstanding practice or custom which
constitutes the "standard operating procedure" of the local
governmental entity.
Jett, 491 U.S. at 737(emphasis added)(internal citations omitted). This is
unhelpful to plaintiffs for two reasons.
First, even though Vargo might have final policymaking authority for
Pennington Countyas a matter of lawa jury must determine causation and
whether Judge Daviss practices constituted the standard operating procedures
of Pennington County. Whether this constitutes the standard operating
procedure of the Seventh Circuit Court is inconsequential to whether there is
Monell liability as to Pennington County. By granting summary judgment, the
Court took these questions away from a jury, without even addressing them.
Second, plaintiffs do not even allege that the Seventh Judicial Court is
an entity subject to Monell liability. And there is no allegation that anyor all
of the named defendants are agents of that the Seventh Circuit Court in a
Monell sense. As stated above, the record suggests that the suit against Vargo
in his official capacity is a suit against Pennington County. There is no
allegation that the Seventh Circuit Court is an entity within Pennington
11
County. There is also no allegation that Vargo is a policy maker for the Seventh
Circuit Court.
This is important because Pennington County is not aware of any
authorityincluding Jettthat suggest that the final policy maker of a
municipality can create an official municipal policy through inaction when they
acquiesce to, or ratify the policy of another entity. Put simply, if Davis created a
policy pursuant to Monell, it is the policy of whatever entity of which he is an
agent, not Pennington County. There is nothing in the record to suggest the
Daviss policyto the extent he created onebecame the policy of Pennington
County solely as a result of Daviss actions. Rather, the argument of the
plaintiffs and the conclusion of the Court seems to be that Daviss practices only
became a policy of Pennington County through Vargosor his deputies
inaction. But Pennington County understands that inaction can only create an
official policy when the original implementer of the practice is an employee,
subordinate or otherwise a member of the same governmental entity as the
policy makerin this case, Vargo. See generally, George M. Weaver,
Ratification as an Exception to the 1983 Causation Requirement: Plaintiffs
Opportunity or Illusion?, 89 NEB L. REV. (2010). Vargo and Davis are not alleged
to be part of the same governmental entity.
In Coleman, it was alleged that the municipality adopted the policy of its
own municipal judge. In Christie v. Iopa, 176 F.3d 1231, 1235-1241 (9th Cir.
1999), the Ninth Circuit discussed a prosecutors ratification of anothers
12
action, repeatedly referencing the acts of subordinates. (a plaintiff must prove

that the policymaker approved of the subordinates act.). The Second Circuit
has explained that acquiescence can create Monell liability under the Jett
framework through subordinate employees. Patterson v. County of Oneida,
375 F.3d 206, 226 (2nd Cir. 2004)( It is sufficient to show, for example, that a
discriminatory practice of municipal officials was so persistent or widespread as
to constitute a custom or usage with the force of law, or that a discriminatory
practice of subordinate employees was so manifest as to imply the constructive
acquiescence of senior policy-making officials . . . .)(internal citations
omitted)(emphasis added). And the Eighth Circuit, has said that, Before a
municipality can be held liable, however, there must be an unconstitutional act
by a municipal employee. Russell v. Hennepin county, 420 F.3d 841, 846 (8th
Cir. 2005); see also Speer v. City of Wynne, 276 F.3d 980, 986 (8th Cir.
2002)(concluding that a municipality may be held liable only if the conduct or
its employees directly caused a violation of a plaintiffs constitutional
rights)(citing Trigalet v. City of Tulsa, 239 F.3d 1150, 1156 (10th Cir.
2001)(emphasis added).
Simply put, Jett contemplates that an entitys policy maker can
theoreticallycreate a policy through acquiescence to the standard operating
procedure of the entity. It does not contemplate creation of a policy through
acquiescence to another entitys standard operating procedure.
13
CONCLUSION.
Pennington County does not concede that any of the defendants in this
case violated plaintiffs constitutional rights or that Monell liability attaches
to any of them. But even if Davis created a policy that deprived plaintiffs of
their constitutional rights, Pennington County is not liable under Monell
simple because its employees failed to challenge or Change Daviss
policies. Monell liability can only attach to Pennington County through its
own agents actions, not through Daviss. Vargo respectfully requests the
Court reconsider its order on Plaintiffs Motions for Partial Summary
Judgment (Docket 150),
Dated: April 27, 2015.
GUNDERSON, PALMER, NELSON
& ASHMORE, LLP
By:/s/J. Crisman Palmer__________
J. Crisman Palmer
Sara Frankenstein
Jeffrey Robert Connolly
Attorneys for defendant, Mark Vargo
506 Sixth Street
P.O. Box 8045
Rapid City, SD 57709
Telephone: (605) 342-1078
Telefax: (605) 342-0480
E-mail: [email protected]
14

WESTERN DIVISION
SIOUX TRIBE as parens patriae, to protect
the rights of their tribal members, and
ROCHELLE WALKING EAGLE,
MADONNA PAPPAN, AND LISA YOUNG,
Plaintiffs,
v.
HON. JEFF DAVIS; and KIM MALSAMRYSDON, in their official capacities,
Defendants.
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Case No.: 13-5020
Defendant Mark Vargos Motion to

Alter, Amend or Reconsider Pursuant
to Rule 59 or Rule 60
Defendant Vargo, through his counsel hereby moves for reconsideration of the
Courts Order dated March 30, 2015. This motion is brought pursuant to Federal Rules of
Civil Procedure 59(e) and 60(b)(6). Defendant Vargo joins in all relevant arguments
asserted by co-defendants motions to reconsider the same. Defendant Vargo has also
simultaneously filed a memorandum in support of this motion.
Dated: April 27, 2015.
GUNDERSON, PALMER, NELSON
& ASHMORE, LLP
By:/s/J. Crisman Palmer__________
J. Crisman Palmer
Sara Frankenstein
Jeffrey Robert Connolly
Attorneys for defendant, Mark Vargo
506 Sixth Street
P.O. Box 8045
Rapid City, SD 57709
Telephone: (605) 342-1078
E-mail: [email protected]

Combined South Dakota Motions To Reconsider in ICWA Case

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What is the main subject of the court case?

What is the main subject of the court case?

What is Judge Davis arguing for in his motion?

What is Judge Davis arguing for in his motion?

Case 5:13-cv-05020-JLV Document 172 Filed 04/27/15 Page 1 of 15 PageID #: 4040

UNITED STATES DISTRICT COURT

JUDGE DAVIS MEMORANDUM OF

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Case 5:13-cv-05020-JLV Document 172 Filed 04/27/15 Page 6 of 15 PageID #: 4045

In other words, these avenues of review achieve an incomplete delegation of authority to

Id. The court explained that [i]n a

Case 5:13-cv-05020-JLV Document 172 Filed 04/27/15 Page 7 of 15 PageID #: 4046

Unquestionably, the court in Saint-

Case 5:13-cv-05020-JLV Document 172 Filed 04/27/15 Page 8 of 15 PageID #: 4047

Court may answer questions of law certified to it which may be determinative of

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An appeal from an intermediate order made before trial as prescribed by

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Case 5:13-cv-05020-JLV Document 172 Filed 04/27/15 Page 11 of 15 PageID #: 4050

policymaking authority in South Dakota.

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GOODSELL QUINN, LLP

Case 5:13-cv-05020-JLV Document 170 Filed 04/27/15 Page 1 of 3 PageID #: 4023

UNITED STATES DISTRICT COURT

Defendant Honorable Jeff Davis moves this Court pursuant to Rule

contemporaneously with this Motion. In addition, or in the alternative;

Case 5:13-cv-05020-JLV Document 170 Filed 04/27/15 Page 2 of 3 PageID #: 4024

filed contemporaneously with this Motion.

Case 5:13-cv-05020-JLV Document 170 Filed 04/27/15 Page 3 of 3 PageID #: 4025

GOODSELL QUINN, LLP

Case 5:13-cv-05020-JLV Document 168 Filed 04/27/15 Page 1 of 18 PageID #: 4004

UNITED STATES DISTRICT COURT

Case No.: 13-5020

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO RECONSIDER

FRCP 59 and 60 Standards

Case 5:13-cv-05020-JLV Document 168 Filed 04/27/15 Page 2 of 18 PageID #: 4005

Basis for the Motion and Relief Sought

Case 5:13-cv-05020-JLV Document 168 Filed 04/27/15 Page 3 of 18 PageID #: 4006

Factual Errors in the Order

Case 5:13-cv-05020-JLV Document 168 Filed 04/27/15 Page 4 of 18 PageID #: 4007

CPS Employees Do Not Prepare a Petition for Temporary Custody.

The ICWA Affidavit and Hearing Transcript Issues 3.

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Valenti and Van Hunnik Understand 48-Hour Hearings are Intended to be

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Case 5:13-cv-05020-JLV Document 168 Filed 04/27/15 Page 10 of 18 PageID #: 4013

The Summary Judgment Motions Should Have Been Denied as to Ms.

There is no Evidence or Claim in the Motions for Summary Judgment

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Case 5:13-cv-05020-JLV Document 168 Filed 04/27/15 Page 12 of 18 PageID #: 4015