The Entire South Dakota Constitution Party Is DISMISSED

Case 4:18-cv-04125-RAL Document 45 Filed 06/28/19 Page 1 of 23 PageID #: 424
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
G. MATT JOHNSON, and LORA HUBBEL, 4:18-CV-4I08-RAL
Plaintiffs,
OPINION AND ORDER

vs. RULING ON PENDING MOTIONS AND
DISMISSING CASES
TERRY LEE LAFLEUR,
Intervenor Plaintiff,
vs.
STEVEN BARNETT,IN HIS OFFICIAL

CAPACITY AS SECRETARY OF STATE
FOR THE STATE OF SOUTH DAKOTA,
Defendant.
DR. TERRY LEE LAFLEUR,IN HIS 4:18-CV-4125-RAL

PERSONAL AND OFFICIAL CAPACITY AS
CANDIDATE FOR GOVERNOR OF SOUTH
DAKOTA,
Plaintiff,
vs.
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.
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 of2018. 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 reliefbefore 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 ofthe amended eomplaints in eaeh ofthe cases. However,this Court first summarizes
the eommon core of undisputable faets between the two eases.
1. Common Core of Facts
Shantel Krebs was the duly-eleeted Seeretary 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 suecessor in office Steve Bamett is now a named defendant in both cases. This
Opinion and Order will refer to the actions of the "Seeretary of State," who at the relevant time
was Krebs.
Johnson is a CPSD member who claims to have been the duly-nominated CPSD eandidate
for U.S. House ofRepresentatives from South Dakota for the November of2018 eleetion. Hubbel
and LaFleur both are CPSD members who have competing claims to have been the duly-nominated
CPSD eandidate 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 ofthe party and who the party's eandidates for the November of2018 eleetion should
have been.
The eontroversy over who is the CPSD ehairman and, in turn, over whose submissions to
the South Dakota Seeretary of State deserve eredence has roots baek in 2017. Before February 2,
2017, Hubbel was CPSD's ehairman, and the documents on file with the Secretary of State
refleeted that Hubbel was CPSD's ehairman. 18-CV-4108-RAL, Doc. 29-1 at 13. On February
2, 2017, Hubbel resigned as chairman because she planned to rejoin the Republiean Party,thereby
leaving the ehairmanship to the vice-ehairman Joel Bergan (Bergan). Id at Doe. 29-1 at 15-16.
Bergan initially waffled about whether he wanted the responsibility of CPSD ehairman, and Lori
Stacey (Stacey), who was CPSD's Secretary/Treasurer, seemingly assumed the position as
ehairman,though Bergan likewise had some elaim to being ehairman. LaFleur believes that Staeey
was the actual CPSD chairman as ofFebruary of2017, and points to the Statement ofOrganization
filed by Staeey with the Secretary of State and approved on February 6, 2017, listing Staeey as
CPSD's Chairman and Treasurer. Id at Doc. 29-1 at 20; Doc. 31. Johnson and Hubbel believe
that Staeey never could be CPSD ehairman 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 of2017, 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 of2018 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 ofstate at least
thirty days previous to the date so chosen.
SDCL § 12-5-17.^ 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.
'The constitutionality and in turn enforceability of the thirty-day prior notice provision is subject
to question but not framed for this Court's decision here. Section 12-5-17 refers to conventions
under § 12-5-21, which provides:'
The state convention shall nominate candidates for lieutenant governor, attorney
general, secretary ofstate, state auditor, state treasurer, commissioner ofschool and
public lands, and public utilities commissioner and in the years when a President
of the United States is to be elected, presidential electors and national
committeeman and national committeewoman of the party.
SDCL § 12-5-21. In early 2018, Judge Piersol held that "South Dakota's ballot access laws result
in discrimination against new party candidates seeking an office not listed in SDCL § 12-5-21."
Libertarian Partv ofS.D. v. Krebs,290 F. Supp. 3d. 902,915(D.S.D. 2018). Because this unequal
treatment was not justified by a compelling state interest. Judge Piersol concluded that it violated
the Equal Protection Clause. Ifr Apparently in response to Judge Piersol's ruling, the South
Dakota Legislature enacted SDCL §§ 12-5-25 and 12-5-26. Section 12-5-25 provides:
A political party with alternative political status may nominate a candidate for
United States Senate, United States House of Representatives, Governor, and any
legislative seat by convention, if the nomination is submitted with the proper
documentation to the Office ofthe Secretary of State no later than 5:00 p.m. central
time on the second Tuesday in August, of the year of the election. A candidate
registered with a political party with an alternative political status may choose, if
allowed by the party bylaws, to participate in a primary election by submitting a
candidate petition no later than the last Tuesday of March in accordance with § 12-
5-1.4.
SDCL § 12-5-25. Section 12-5-26 reads:
A new political party may nominate a candidate for United States Senate, United
States House of Representatives, Governor, and any legislative seat by convention,
if the nomination is submitted with the proper documentation to the Office of the
On July 13, 2018, Hubbel contacted the National Constitution Party about Stacey's claim
to be the CPSD ehairman. 18-CV-4108-RAL, Doe. 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
ofchairman. 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 ofa conspiraey. 18-CV-4125-RAL, Doe. 43. The National Chair ofthe
Constitution Party sent Staeey a letter telling her that she could not act as CPSD chairman. On
July 13,2018, Hubbel sent to the Seeretary of State notiee ofa convention for the CPSD to be held
in Pierre, South Dakota, on August 14, 2018. 18-CV-4108-RAL, Doe. 24 at ^ 5; Doe. 29 at 121;
Doe. 29-1 at 28. Hubbel signed the notice representing that she was the chairman of the CPSD.
Id. 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 eonvention was being hijaeked.
Hubbel reports that her files were stolen during the convention, although LaFleur viewed them as
being picked up after being abandoned. The eonvention ended without any slate of CPSD
eandidates being selected.
Secretary of State no later than 5:00 p.m. eentral time on the second Tuesday in
August, ofthe year ofthe election.
SDCL § 12-5-26. Thus,ifthe CPSD had been proceeding under § 12-5-25 or § 12-5-26,the notice
requirement in § 12-5-17 may not apply.
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. Ifr 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 17. 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^f 8; Doc. 29-1 at I.
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 Tf 27. Apparently, Bergan resigned
as chairman ofthe Hubbel/Bergan faction ofthe 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 ofthe meeting and considers the July 21 meeting to be a sham
secret meeting. LaFlem* 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 I, 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
7
to seek to keep candidates from the South Dakota Democratic Party and the South Dakota
Libertarian Party offthe 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. Ifr at Doc. 25-2. The ease was
assigned to the Honorable Patricia DeVaney, then a judge in South Dakota's Sixth Judicial
Circuit.^ 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. Ifr 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 ofthem 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
Doe. 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 ]f 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
^DeVaney has since been appointed to the Supreme Court of South Dakota.
8
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 atf 11; Doc. 29 at ^ 32. The Hubbel/Bergan faction of the CPSD
nominated Johnson for United States House of Representatives, Hubbel for Govemor, Tara
Volesky for Lieutenant Govemor, and several candidates for the South Dakota House of
Representatives. Id. at Doc. 24 at ^ 11. The Stacey/Gunn/LaFleur faction nominated LaFleur for
Govemor, Rick Gortmaker for Lieutenant Govemor, 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 ofState would "cover"
for the CPSD because they were on the same side ofthe 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 Tf 33. The Secretary of State
disputes having given Howie any such advice. An attomey filed a notice of appearance on behalf
of the CPSD in the state litigation, but withdrew before the hearing apparently because of the
conflicting positions and infighting among CPSD members. Id at Doc. 8 at 4; Doc. 25-1.
The state court hearing was held as scheduled on August 16, 2018. Id at Doc. 25-5, Doc.
69-1. Lederman for the South Dakota Republican Party attended the hearing with counsel as did
two assistant attomey generals representing the Secretary of State. Id at Doe. 25-5, Doc. 69-1.
LaFleur and Gunn were also in attendance, and Judge DeVaney allowed LaFleur to intervene in
the action. Id at Doc. 25-5; Doc. 69-1 at 21. LaFlcur made several statements on the record but
was repeatedly admonished not to interrupt Judge DeVaney. Id. at Doc. 69-1. He left the hearing
voluntarily approximately half way through, stating that he was not being treated fairly, that
anything Judge DeVaney decided "does not effectually apply to my campaign," and that he would
not be "kangarooed court by any reason by anyone." Id at Doc.69-1 at 71. Bergan did not attend
the August 16 hearing. Although Johnson and Hubbel assert that Bergan was not at the hearing
because the South Dakota Republican Party's attorney issued a belated subpoena to Bergan,id at
Doc.8 at 4, Doc.29 at 34-35,Bergan's affidavit suggests that he was nevertheless aware ofthe
hearing before it occurred, id at Doc. 22 at 3-6. The attorneys for the Secretary of State at the
hearing largely acceded to Lederman's aim to have no CPSD candidates on the ballot. Id at Doc.
69-1.
Judge DeVaney issued an oral decision at the end of the hearing granting Lederman's
petition for a writ of prohibition. Id at Doc. 25-5; Doc. 69-1. Judge DeVaney reviewed South
Dakota statutes and one case to conclude that the CPSD could "only lawfully submit one slate of
candidates to be certified for the ballot." Id at Doc. 69-1 at 92. Judge DeVaney then considered
whether either slate of CPSD candidates were properly nominated through a valid convention and
concluded that the Stacey faction ofthe CPSD failed to satisfy the South Dakota statute for timely
notice to the Secretary of State. Id at Doc. 69-1 at 92—103. Judge DeVaney also deemed the
CPSD bylaws to require more timely conventions than what either CPSD faction had. Id at Doc.
69-1 at 105. Judge DeVaney deemed the notices of convention from Hubbel and Stacey both to
be improper under the CPSD's bylaws because the bylaws require that a convention be held within
sixty days ofthe primary election and because the August 14,2018 dueling conventions were more
10
than sixty days past the June 5, 2018 primary election.^ Based on the lack of proper notice of
convention as required by statute and bylaws and the lack of substantial compliance with the
statute, Judge DeVaney ruled that there could not be a certification ofthe CPSD nominees chosen
at either of the conventions. at Doe. 69-1 at 127. Judge DeVaney also questioned who held
the office ofCPSD chairman and,therefore, who could issue the notice ofconvention under SDCL
§ 12-5-17. Id, at Doe. 69-1 at 106-124.
LaFleur filed an appeal of Judge DeVaney's decision to the Supreme Court of South
Dakota. Id, at Doe. 25-6. On September 21, 2019,the Supreme Court of South Dakota dismissed
the appeal because "the Court lacks jurisdiction due to improper service and the matter is moot."
Id. at Doc. 38-5. The Order Dismissing Appeal did not come to this Cpurt's attention until it was
later filed in CM/ECF after this Court's Opinion and Order Denying Preliminary Injunction. Id
Doc. 38-5;^18-CV-4125-RAL, Doe. 28.
South Dakota contracts with an outside vendor to print the State's election ballots. 18-CV-
4108-RAL,Doe. 24 at ^ 13. Because the vendor prints general election ballots for multiple states,
the vendor sets deadlines by which the states must submit their ballot information. Id If a state
misses its deadline, the vendor will not guarantee that the work will be completed by the delivery
date. Id For the November 2018 election, the vendor required South Dakota to submit its ballot
information before August 17,2018,in order to receive the printed ballots by September 19,2018,
as required by state law, and to commence absentee voting on September 21,2018, as required by
both state and federal law. Id On August 17, 2018, the Secretary of State certified the statewide
^According to Johnson and Hubbel, the CPSD decided during the July 21,2018 meeting that this
sixty-day window would not apply to the August 14, 2018 convention. 18-CV-4108-RAL,Doc.
29 at 128.
11
candidates to the covinty auditors under SDCL § 12-8-8. The Secretary of State filed an affidavit
in this case saying that all ballots had been printed and delivered to all county auditors in
compliance with the requirements of SDCL § 12-16-1.^ Id at Doc. 24 at 15.
On August21,2018, Hubbel emailed the Secretary of State to say that Bergan had resigned
during the July 21,2018 CPSD meeting and Howie had become the CPSD's chairman. Id. at Doc.
29-3. Hubbel attached the minutes for the July 21 meeting to show that Howie was the CPSD
chairman. Id Absentee voting in South Dakota commenced on September 21, 2018, in
''Section 12-8-8 states:

The secretary ofstate, not later than the third Tuesday in August at five p.m. before
the general election, shall certify to the county auditor of each county within which
any voters of this state vote for the officer or officers nominated at the preceding
primary, whose certificates of nomination have been filed in the Office of the
Secretary of State, or who have been regularly named or petitioned for filling of a
vacancy, the name and description of each person so nominated. In years when a
President and vice president are nominated and the national party conventions are
held at such a late date as to make the foregoing provisions impossible, then, the
secretary of state shall make the certification not later than seven days after
nominations of such President and vice president.
SDCL § 12-8-8.
^Section 12-16-1 states:
The county auditor shall provide printed ballots for each election in which the
voters of the entire county participate. Except as provided in § 12-6-9, printed
ballots for a primary election shall contain the name ofeach candidate who has filed
for nomination and is approved. The printed ballots for the election ofofficers shall
contain the name of each candidate whose nomination has been certified or filed
with the county auditor in the manner provided by law unless the candidate is
deemed elected by having no opposition. The names ofthe candidates shall appear
on the ballot exactly as listed in the declaration of candidacy of the candidates'
nominating petitions. Sample ballots shall be printed on paper of a different color
from the official ballot but in the same form. The sample ballots and official ballots
shall be printed and in the possession ofthe county auditor not later than forty-eight
days prior to a primary or general election. The coimty auditor shall also prepare
the necessary ballots if any question is required to be submitted to the voters ofthe
county. Ballots for general elections shall be ofthe style and form prescribed in §§
12-16-2 to 12-16-11, inclusive.
SDCL§ 12-16-1.
12
accordance with SDCL § 12-19-1.2® and 52 U.S.C. § 20302. Id at Doc.24 at 116. On September
27, 2018, this Court held a hearing on the request in Johnson and Hubbel's eomplaint for an
injunetion. At the start ofthe hearing, this Court granted LaFleur's motion to intervene in 18-CV-
4108-RAL. Id at Doc. 31; Doc. 33. This Court addressed an issue about sufficieney ofservice of
proeess, both allowing Johnson and Hubbel leave to file a second amended eomplaint and
eoncluding that Johnson and Hubbel had substantially complied with SDCL § 15-6-4(d)(6) for
service on the Seeretary of State. Id at Doe. 33. This Court considered the Dataphase factors and
denied a preliminary injunction for reasons that this Court expressed in part on the record and in a
subsequent written opinion and order. Id at Doc. 33; s^ Dataphase Svs., Inc. v. C L Svs., Inc.,
640 F.2d 109, 113 (8th Cir. 1981)(en banc).
II. LaFleur's Case(18-CV-4125-RAL)
The day before the September 27, 2018 hearing, LaFleur filed his ovm separate case. 18-
CV-4125-RAL,Doc. 1. LaFleur has filed a number of amendments to his initial eomplaint. Id at
Docs. 12, 15, 18, 38, 43. This Court notified LaFleur ofits intent to take judicial notice of filings
in 18-CV-4108-RAL, Doe. 9, and then directed service, 18-CV-4125-RAL, Doc. 16. Thereafter,
this Court learned that the Supreme Court of South Dakota had dismissed LaFleur's appeal. Id at
Doe. 22. This Court entered an order taking judieial notiee of pleadings in 18-CV-4108-RAL,
direeting cessation of service of proeess and directing LaFleur to show cause why judgment of
dismissal should not enter. 18-CV-4125-RAL, Doc. 22. In that order, this Court described how
the Rooker-Feldman doctrine and issue preclusion appeared to bar LaFleur's re-litigation ofissues
pressed in his complaint and amended eomplaints. Id at Doc. 22. LaFleur subsequently has filed
^Seetion 12-19-1.2 states: "Absentee voting shall begin neither earlier nor later than forty-six days
prior to the election including any voter identified as being covered by the Uniformed and Overseas
Citizens Absentee Voting Act(42 U.S.C. 1973ff-l)." SDCL § 12-19-1.2.
13
a response to order to show cause, which is styled as a "motion to amend complaint plaintiffs to
show cause response; restatement of motion to recuse for dismissal in retaliation for filing judicial
complaint against Judge Lange." li at Doc. 28. Thereafter, LaFleur filed yet another motion to
amend complaint with an amended response to this Court's order, in which LaFleur restates his
request for recusal. Ift at Doc. 38. In ruling on LaFleur's case, there are three issues for this Court
to address in turn: 1) whether this Court should recuse itself; 2) whether this Court should allow
LaFleur to amend his complaint; 3) whether LaFleur's complaints survive initial screening as
LaFleur is proceeding pro se and in forma pauperis.
LaFleur's argument for recusal originally was made in a motion to recuse filed by LaFleur
after the September 27, 2018 hearing and early during the pendency of his separate case. Id, at
Doc. 6. LaFleur's motion focused on a comment by this Court to the effect that LaFleur "might
have to pay" the filing fee, which was a passing comment this Court made during the lengthy
September 27 hearing. The comment came after this Court inquired early in the hearing about
what doctorate degree LaFleur had(as he was representing himself as Dr. Terry LaFleur). LaFleur
disclosed that he held a juris doctorate degree. This Court then said that LaFleur "might have to
pay"the filing fee. LaFleur contended that this Court prejudged his IFF motion and could be intent
on punishing him for intervening in 18-CV-4108-RAL(which this Court had permitted LaFleur to
do at the outset of the September 27 hearing). 18-CV-4108-RAL, Docs. 32, 33; 18-CV-4125-
RAL,Doc.6. This Court ultimately reviewed material showing that LaFleur was on social security
disability and chose to grant LaFleur's motion to proeeed in forma pauperis. 18-CV-4125-RAL,
Doc. 9. This Court then denied LaFleur's motion for recusal. Ift at Doc. 9. LaFleur was
dissatisfied with this Court not recusing itself and filed a disciplinary complaint against the
14
undersigned, which was summarily dismissed. LaFleur now seeks to have this Court recuse itself
anew. Id. at Docs. 28, 38.
The standard for recusal is that a "judge must recuse from 'any proceeding in which [the
judge's] impartiality might reasonably be questioned.'" United States v. Melton. 738 F.3d 903,
905 (8th Cir. 2013) (alteration in original) (quoting 28 U.S.C. § 455(a)). The standard is an
objective one, in which the question posed is "whether the judge's impartiality might reasonably
be questioned by the average person on the street who knows all the relevant facts of a case." Id.
(quoting Moran v. Clarke. 296 F.3d 638,648 (8th Cir. 2002)(en banc)). In practice, the standard
requires a showing that "the judge had a disposition so extreme as to display clear inability to
render fair judgment." Id (citation and intemal marks omitted). "A party introducing a motion to
recuse carries a heavy burden of proof; a judge is presumed to be impartial and the party seeking
disqualification bears the substantial burden of proving otherwise." Fletcher v. Conoco Pipe line
Co.. 323 F.3d 661, 664 (8th Cir. 2003) (citation omitted). LaFleur has not met this burden.
LaFleur's initial fear that this Court would not grant him IFF status did not materialize. LaFleur
cannot then seek to disqualify this Court simply by filing a groundless disciplinary complaint for
ruling in a manner LaFleur did not like. If the rule were otherwise, a litigant like LaFleur could
constantly change judges on a case simply by filing groundless disciplinary complaints. LaFleur's
motion to recuse is denied.
This Court next is faced with multiple motions by LaFleur to amend his complaint. LaFleur
has filed one complaint and at least three amended complaints gradually broadening the claims
and named defendants. 18-CV-4125-RAL, Docs. 1, 12, 15, 18, 38, 43. Leave to amend a
complaint is to be freely granted under Rule 15(a)(2)ofthe Federal Rules of Civil Procedure. Rule
15(a), however, contemplates that a party can amend a single time before a responsive pleading is
15
filed. Rule 15(a)(1), concerning amending as a matter of course, allows a party to amend "its
pleading once as a matter ofeourse" before the responding party responds. Fed. R. Civ. P. 15(a)(1)
(emphasis added). Rule 15(a)(1), strictly applied, could justify allowing only one amendment of
the complaint. This Court, however, in the spirit of accommodating pro se litigant LaFleur will
allow amendment of his complaint and will focus on the most recent amended complaint, 18-CV-
4125-RAL, Doc. 43, in determining whether LaFleur has an allegation that survives initial
screening.
In deciding whether to dismiss on initial screening of LaFleur's pro se IF? amended
complaint, this Court must accept the well-pleaded allegations as true and draw all reasonable
inferences in favor of LaFleur. Sehriener v. Quicken Loans. Inc.. 774 F.3d 442, 444 (8th Cir.
2014). Pro-se civil rights complaints must be liberally construed. Eriekson v. Pardus, 551 U.S.
89, 94(2007)(per euriam); Bediako v. Stein Mart. Inc., 354 F.3d 835, 839(8th Cir. 2004). Even
with this construction, though, "a pro se complaint must contain specific facts supporting its
conclusions." Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); see also Ellis v. Citv of
Minrieapnli.s- 518 F. App'x 502, 504(8th Cir. 2013)(per euriam). Civil rights complaints cannot
be merely eonelusory. Davis v. Hall. 992 F.2d 151, 152 (8th Cir. 1993)(per euriam); Parker v.
Porter. 221 F. App'x 481,482(8th Cir. 2007)(per euriam). A complaint "does not need detailed
factual allegations ...[but] requires more than labels and conclusions, and a formulaic recitation
ofthe elements of a cause of action will not do." Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 555
(2007).
This Court is permitted to allow proceedings in forma pauperis under 28 U.S.C. § 1915.
Although the majority ofthat statute relates to litigation by prisoners, § 1915(e)(2)is not confined
to prisoner litigation and states that "the court shall dismiss the ease at any time if the court
16
deteraiines that ...(B)the action or appeal—(i)is frivolous or malicious;(ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2); see also Adams v. United States, No. 3:17CV00129
JLH,2017 WL 4583256, at *2(E.D. Ark. June 26,2017)(collecting opinions from federal circuits
holding that non-prisoner complaints can be screened and dismissed under § 1915(e)(2)(B)).
LaFleur fails to state a claim upon which relief can be granted for several .reasons.
LaFleur's latest iteration of his amended complaint names both the former and current Secretary
of State and the current governor of South Dakota. 18-CV-4125-RAL, Doe. 43. The Rooker-
Feldman doctrine bars his claim against the Secretary of State. "The Rooker-Feldman doctrine ..
. is confined to . . . eases brought by state-court losers complaining of injuries caused by state-
court judgments rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280,284(2005). Four necessary elements for the Rooker-Feldman doctrine to apply are:
"(1) the federal court plaintiff must have lost in state court,(2) the plaintiff must complain of
injuries caused by a state court judgment,(3) the plaintiff must invite district court review and
rejection of that judgment, and (4) the state court judgment must have been rendered before the
district court proceedings eommeneed." Christ's Household ofFaith v. Ramsev Ctv..618 F. Supp.
2d 1040, 1044(D. Minn. 2009); Exxon Mobil. 544 U.S. at 284. Here all the elements of the
Rooker-Feldman doctrine apply to LaFleur. Unlike Johnson and Hubbel, LeFleur intervened in
the state court case and participated in the August 16 hearing before Judge DeVaney. 18-CV-
4108-RAL,Doe. 69-1 at 21; Doe. 25-5. LaFleur appealed from the adverse ruling to the Supreme
Court of South Dakota, which dismissed his appeal on September 21, 2018, for procedural error
and for mootness. Id at Doe. 38-5. LaFleur thereafter filed his complaint and various amended
17
complaints in 18-CV-4125-RAL and intervened in 18-CV-4108-RAL. LaFIeur complains of the
same injury or damage from not being a candidate for governor and wants for this Court to rule
differently than the state court previously did. As this Court presaged in its order to show cause,
the Rooker-Feldman doctrine bars any claim of LaFIeur against the Secretary of State.
In the numerous amended complaints submitted by LaFIeur, 18-CV-4125-RAL, Docs. 1,
12, 15, 18, 38, 43, LaFIeur has gradually added more named defendants and more claims. His
most recent amended complaint names twenty other individuals, in addition to the three state
employees, and makes seven separate claims. However, each of those claims are tied to his
assertion that he should have been the CPSD candidate for governor and thus are simply efforts to
avert application ofthe Rooker-Feldman doctrine. For instance. Count 1 ofthe complaint alleges
a conspiracy regarding the proper chairmanship ofCPSD,which in turn led to the dueling factions
and court ruling that no CPSD candidate had qualified for the 2018 ballot. Id, at Doc. 43. Count
11 of the latest amended complaint asserts an Americans With Disability Act claim in the caption,
but simply avers that the Defendants by engaging in the conspiracy alleged by LaFIeur "deprived
[LaFIeur] of his personal. Constitutional, and God given rights as an American citizen with a
disability in a free society to obtain viable emplojmient as Governor of South Dakota." Id, at Doc.
43. Count 11 alleges that the Defendants should have known LaFIeur to be disabled because he
has a chronic low back condition, but again relates to the same wrong of not allowing him to be
CPSD's candidate for governor on the 2018 ballot. Relatedly, Count 111 for conspiracy to interfere
with civil and political rights. Count IV for civil rights and elective franchise violation, and Count
V asserting a due process violation all again relate to the alleged conspiracy that deprived LaFIeur
of being CPSD's candidate for govemor. Counts VI and Vll allege slander and libel, and
defamation of character respectively. However, neither count sets forth a claim for either slander.
18
libel, or defamation of any nature. Count VI for slander and libel simply alleges that there was a
"level of misinformation," again relating to what was occurring with the CPSD, while Count VII
for defamation of character alleges in a conclusory manner that the defendants placed LaFleur "in
a False light in the eyes of the People of South Dakota." Id at Doc. 43. Such conclusory
allegations are insufficient to survive dismissal. See Twomblv. 550 U.S. at 555. LaFleur's most
recent amended complaint will be dismissed for failure to state a claim.
III. Johnson and Hnbbel's Case(18-CV-4I08-RAL)
Defendants filed a motion to dismiss. Doc.67, arguing that issue preclusion,the Rooker-
Feldman doctrine, and an absence of standing bars the claims of Johnson and Hubbel. LaFleur as
the intervenor in 18-CV-4108-RAL responded that: "the Intervenor respectfully joins the
defendant, Steven Bamett, in his motion to dismiss civil case number 18-4108." 18-CV-4108-
RAL,Doc.82 at 5. However,LaFleur makes other assertions that could be understood as opposing
arguments made by the Defendants. Id at Docs. 73, 74, 77.
Johnson and Hubbel oppose the motion to dismiss. In ruling on the motion to dismiss,
this Court applies the same standards discussed above on page 16 of this Opinion and Order.
Johnson and Hubbel at this point seek what the Court would view as a declaratory judgment
"telling the SD SEcreatry [sic] ofStates [sic] office to accept the most recent filings ofthe Hubbel-
Johnson faction of the CPSD indicating that Matt Johnson is the Chair and that Lora Hubbel is
Secretary/Treasurer" and that CPSD "be placed back on the SD Secretary of Sates [sic] website as
a legitimate political party." Id at Doc. 70 at 4.
For the reasons explained in this Court's prior opinion and order denying motion for
preliminary injunction, the Rooker-Feldman doctrine does not apply to Johnson and Hubbel, like
it applies to LaFleur. Neither Johnson nor Hubbel were named in the lawsuit brought in state court
19
and appealed to the Supreme Court of South Dakota. Unlike LaFleur, who intervened in the state
action and actually appealed an adverse ruling to the Supreme Court of South Dakota, neither
Johnson nor Hubbel intervened or appeared at any of the hearings. While arguably three of the
four elements ofthe Rooker-Feldman doctrine apply to Johnson and Hubbel,this Court cannot say
that Johnson and Hubbel were parties in state court, particularly where there was a great deal of
confusion over proper service of the CPSD with the summons and complaint from the state court
action and who was acting on behalf of the CPSD or the faction that had nominated Johnson and
Hubbel for positions on the ballot. The Rooker-Feldman doctrine generally does not bar claims
unless the federal court plaintiff was a litigant in the prior state court case. Lance v. Dennis. 546
U.S. 459,465-66(2006)(per curiam). Thus, the Rooker-Feldman doctrine bars LaFleur's claims
against the Secretary of State but not those of Johnson or Hubbel. There are, however, two other
reasons why the Court ought to dismiss Johnson and Hubbel's ease. First, issue preclusion bars
claims ofJohnson and Hubbel regarding entitlement to placement on the 2018 ballot, and the issue
of placement on the 2018 ballot is moot.
A federal court "must give to a state-eourt judgment the same preclusive effect as would
be given thatjudgment under the law ofthe State in which the judgment was rendered." Miera v.
Warren Citv Sch. Dist. Bd. of Educ.. 465 U.S. 75, 81 (1984); see also 28 U.S.C. § 1738 (full faith
and credit statute regarding state eourt judgments). In determining whether issue preclusion
applies, courts "should construe the doctrine liberally, unrestricted by technicalities." People ex
rel. L.S., 721 N.W.2d 83, 90 (S.D. 2006). Judge DeVaney enjoined the Secretary of State from
having CPSD candidates on the 2018 general election ballot and explained her decision during the
August 16, 2018 hearing. Judge DeVaney reasoned that neither faction ofthe CPSD had satisfied
South Dakota law for ballot access through party convention vote. An appeal—albeit not by
20
Johnson and Hubbel—of Judge DeVaney's ruling to the Supreme Court of South Dakota was
dismissed for procedural error and for being moot. This Court of course does not sit as the
appellate court to the Sixth Judicial Circuit to review or reverse what Judge DeVaney decided.
Indeed, it would be unseemly under the federalism system of this country for a federal district
court to do so, and principles ofissue preclusion,full faith and credit, and comity call for deference
to state court rulings, particularly on issues ofinterpretation and application of state statutes. See
generallv Simmons v. O'Brien. 77 F.3d 1093, 1095-96(8th Cir. 1996).
The issue of whether any CPSD candidate and which of two dueling CPSD faction's
candidates should have been on the 2018 South Dakota ballot now is moot. The election is
concluded, and this Court cannot rule on an issue that is moot. See Stone v. Bd. of Election
Comm'rs for Citv of Chicago. 643 F.3d 543, 544—45(7th Cir. 2011)(concluding that a request to
enjoin a city from enforcing a signature requirement during a specific election was moot once
election occurred); Freedom Partv ofN.Y. v. N.Y. State Bd. of Elections. 77 F.3d 660,662-63(2d
Cir. 1996)(per curiam)(holding that controversy over which party could run a candidate under a
particular party name became moot once the election was held).
Johnson and Hubbel now seek to have this Court declare Johnson to be the chairman ofthe
CPSD and Hubbel to be the Secretary/Treasurer, as well as to direct the Secretary ofState to restore
CPSD "as a legitimate political party" under their leadership. 18-CV-4108-RAL, Doc. 70 at 4.
LaFleur wants himselfto be returned "to a position prior to August 16,2018 restoring Ballot access
for the CPSD for 2022," presumably allowing him to be the CPSD govemor candidate for 2022.
18-CV-4125-RAL, Doc. 43 at 10. However, resolution of which CPSD faction's candidates
possibly belonged on the ballot and who should run the CPSD present nonjusticiable questions
involving the intemal management of a political party. The Supreme Court of the United States
21
has recognized that a dispute over political party governance generally "is not for the courts to
mediate" absent some issue of constitutional dimension. Democratic Partv of U.S. v. Wisconsin.
450 U.S. 107, 123-24 & n.25 (1981); see also Irish v. Democratic-Farmer-Labor Partv of Minn.,
399 F.2d 119, 120(8th Cir. 1968)("The courts, generally and consistently, have been reluctant to
interfere with the internal operations of a political party.")(per curiam); Reform Partv of Minn, v.
Reform Partv of U.S.. No. 99 Civ.2052 DDA/FLN, 1999 WL 1285798, at *2(D. Minn. Dec. 29,
1999). To grant Johnson and Hubbel, or alternatively LaFleur, an injunction or declaration of
rightful entitlement to control of the CPSD at this point necessarily would require this Court to
adjudicate a dispute over political party governance, which is the sort of question deemed "not for
the courts to mediate." Democratic Partv. 450 U.S. at 123. At this point, it appears that the CPSD
will have to reconstitute itself as a political party under South Dakota law, which this Court cannot
do on behalf of either faction ofthe CPSD as it existed in 2018.
IV. Conclusion
Therefore, for the reasons explained above, it is hereby
ORDERED that Defendants' Motion to Dismiss in 18-CV-4108-RAL, Doc. 67, is granted
and that the request for declaration by the Plaintiffs in Doc. 70 is denied. It is further
ORDERED that the Motion to Amend Complaint as contained in Docs. 28, 38, and 43 in
18-CV-4125rRAL, are granted, but that the requests to recuse in those documents is denied. It is
further
ORDERED that the most recent complaint in 18-CV-4125-RAL, Doc. 43, is screened and
dismissed for failure to state a claim and that the Clerk of Court mail a copy of this Opinion and
Order to all Defendants listed in 18-CV-4125-RAL, Doc. 43.
22
DATED this day of June, 2019.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
23

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Case 4:18-cv-04125-RAL Document 45 Filed 06/28/19 Page 1 of 23 PageID #: 424

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

G. MATT JOHNSON, and LORA HUBBEL, 4:18-CV-4I08-RAL

OPINION AND ORDER

STEVEN BARNETT,IN HIS OFFICIAL

DR. TERRY LEE LAFLEUR,IN HIS 4:18-CV-4125-RAL

STATE OF SOUTH DAKOTA,SHANTEL

LORA HUBBEL,GORDON HOWIE,JOEL

part of its consideration of matters in the second-filed case of 18-CV-4125-RAL. 18-CV-4125-

the eommon core of undisputable faets between the two eases.

1. Common Core of Facts

from the State's perspective the CPSD chairman remained Hubbel.

as part of a Republican Party plot to infiltrate and destroy the CPSD.

its candidates through a convention, SDCL § 12-5-17 imposes a notice requirement:

believed themselves entitled to act as CPSD chairman as that convention neared.

eandidates being selected.

at^f 8; Doc. 29-1 at I.

party but attempting to act for the existing CPSD.

"would just confuse the issue." Id at Doc. 29 at ]f 31.

§ 12-5-17. Id, at Doe. 69-1 at 106-124.

Doc. 38-5;^18-CV-4125-RAL, Doe. 28.

compliance with the requirements of SDCL § 12-16-1.^ Id at Doc. 24 at 15.

chairman. Id Absentee voting in South Dakota commenced on September 21, 2018, in

''Section 12-8-8 states:

640 F.2d 109, 113 (8th Cir. 1981)(en banc).

II. LaFleur's Case(18-CV-4125-RAL)

CV-4125-RAL,Doc. 1. LaFleur has filed a number of amendments to his initial eomplaint. Id at

LaFleur is proceeding pro se and in forma pauperis.

anew. Id. at Docs. 28, 38.

motion to recuse is denied.

In deciding whether to dismiss on initial screening of LaFleur's pro se IF? amended

. is confined to . . . eases brought by state-court losers complaining of injuries caused by state-

complaints in 18-CV-4125-RAL and intervened in 18-CV-4108-RAL. LaFIeur complains of the

In the numerous amended complaints submitted by LaFIeur, 18-CV-4125-RAL, Docs. 1,

recent amended complaint will be dismissed for failure to state a claim.

III. Johnson and Hnbbel's Case(18-CV-4I08-RAL)

RAL,Doc.82 at 5. However,LaFleur makes other assertions that could be understood as opposing

arguments made by the Defendants. Id at Docs. 73, 74, 77.

a legitimate political party." Id at Doc. 70 at 4.

of placement on the 2018 ballot is moot.

generallv Simmons v. O'Brien. 77 F.3d 1093, 1095-96(8th Cir. 1996).

18-CV-4125-RAL, Doc. 43 at 10. However, resolution of which CPSD faction's candidates

1999). To grant Johnson and Hubbel, or alternatively LaFleur, an injunction or declaration of

do on behalf of either faction ofthe CPSD as it existed in 2018.

Therefore, for the reasons explained above, it is hereby

ORDERED that Defendants' Motion to Dismiss in 18-CV-4108-RAL, Doc. 67, is granted

Order to all Defendants listed in 18-CV-4125-RAL, Doc. 43.

DATED this day of June, 2019.

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