Last updated on 2013.01.05
Part of a lawyer's job is to throw legal spaghetti against the wall and see how much sticks. But another part of a lawyer's job is to pick the client's battles. Stephanie Strong's as yet unnamed lawyer appears to be focusing on the former over the latter.
In the latest filing in Strong's lawsuit against Secretary of State Jason Gant, Strong challenges the change of venue granted by Judge Robert Mandel last week. Her Friday filing argues that, even though South Dakota Codified Law 15-5-2 says Strong filed her suit in the wrong county, a subsequent statute says the trial could still take place where she filed it. Strong contends further that since Gant and his lawyer, Assistant Attorney General Richard Williams, didn't ask her first if she'd be willing to change venue before they asked the judge, their request is void and the trial should go on in Pennington County, not Hughes County.
The statute on which Strong's lawyer bases this argument doesn't do the job alone. SDCL 15-5-10 says the court could overlook Strong's error in filing in Pennington and hold the trial there "unless the defendant, before the time for answering expires, demands in writing that the trial be had in the proper county, and the place of trial be thereupon changed by the consent of the parties or by order of the court, as provided in § 15-5-11." That statute says or, not and, between consent of the parties and order of the court. Neither it nor the 15-5-11 to which it refers establishes any requirement that the defendant first ask for the plaintiff's consent.
For that requirement, Team Strong turns to a 1986 case in which the South Dakota Supreme Court said that "We have held in a long line of cases that €˜failure of a [respondent] to attempt to obtain [applicant's] consent to a change of venue before approaching a court results in denial of the motion.'"
If that ruling is binding, then Strong may get the judge to move the trial back to Rapid City. Pleae note the irony of Strong and her fellow strict constitutionalists counting on what looks like judicial activism over a close reading of statute.
But, as Mr. Montgomery asks, to what avail? Sparing Strong some gas money is nice, but does the Rapid City venue boost her main legal argument? Perhaps Strong thinks Judge Mandel may be more sympathetic to her case than a judge in Pierre who sees Secretary Gant at Burger King on a regular basis.
But if Strong is at all serious about her lawsuit, if she is at all serious about getting a judge to negate Gant's certification of Rep. Brian Gosch's illegally notarized petitions, she should want action as soon as possible. Every day wasted in legal wrangling on technicalities is a day that more people vote absentee and favorable action from the court becomes even less likely. Even if Strong can't get Gosch kicked off the ballot, she should want a ruling from the judge as quickly as possible so she could say to as many voters as possible, "Gosch broke the law to get on the ballot! Don't vote for him!" Removing him from office would be just as satisfying as removing him from the ballot, wouldn't it?
Strong and the legal team backing her need to avoid getting distracted by legal games. It doesn't matter where this trial is held. It matters that the trial is held, expeditiously, before the election. Stephanie, get Gordon and Ed to chip in some money to cover your lawyer's trip to Pierre, make your case, and show the state that Rep. Gosch and Secretary Gant broke notary law and do not deserve their offices.
Gant isn't covered in teflon. He's more like a sticky gummy bear.
This is a lawsuit meant more at Gant then Gosch. She wants Gant to look bad, and the best place to have that is anywhere but Pierre. Pierre is a small town, and I believe that if he, or the AG's office thought it would hurt their case to bring it to Pierre they wouldn't have done it, IDK what the law says.
The fact is she waited too long to bring this case. Waaay too long. She's going to be thrown out of court for that reason, and the merits of her claims will not be decided. It matters not whether it's thrown out in Rapid City or in Pierre. Should election laws be reviewed by the next legislature? Of course. Is Gant a 1-term secretary of state regartdless of the outcome of this case? Of course. That guy is an absolute disaster of a magnitude nobody could have accurately predicted prior to his election.
It seems to me that Strong should know she will lose this case if her anonymous lawyer is worth his salt. The probable reason she's bringing a motion to move it back is simply to delay finality on the case and keep it in the news as long as she can.
The important consideration is where would it be most entertaining for those unable to attend and observing from afar.
Grud, I'd say Rapid City with Howie and Randazo in the front row.