Frankenstein Fights Indian Voting Rights in Montana, Tries Blocking Good Lawyer

Rapid City lawyer and shiny Republican light Sara Frankenstein likes working on Indian voting rights cases. She does not, alas, like Indian voting rights. Frankenstein tried to defend South Dakota counties and Secretary of State Jason Gant in Brooks v. Gant, a lawsuit brought by Oglala voters seeking equal access to early voting. When the Oglala voters prevailed, Frankenstein led a crass effort to intimidate Indian voters by trying to force the Oglala plaintiffs to pay the counties' legal bills. That effort failed.

Frankenstein is using similar fire-everything! anti-Indian voter tactics in a Montana lawsuit. Marine and Vietnam veteran Mark Wandering Medicine is leading Northern Cheyenne, Fort Belknap, and Crow tribal members in a lawsuit against Montana's Democratic Secretary of State Linda McCulloch and county officials to win satellite early voting stations to provide equal ballot access for their reservations. Frankenstein is making the long drive from Rapid City to Billings to defend Montana's vote suppressors.

To beat those pesky believers in equality, Frankenstein has tried to get voting-rights advocates Four Directions to post a $90,000 bond in the Wandering Medicine case. She has also worked hard to keep the plaintiffs from saving money through the services of a willing, eager, and skilled pro bono attorney, David Bradley Olsen of Minnesota:

The state and county officials petitioned Judge [Donald] Molloy to stop the Native plaintiffs from continuing to use David Bradley Olsen as their pro bono attorney, claiming he was overly aggressive. Olsen is an award-winning lawyer from Henson & Efron, a large Minnesota firm that he and co-counsel Steven Sandven, of Sioux Falls, told the judge is able to handle the research required by a complex case like Wandering Medicine; Olsen was also one of the attorneys who argued before the Ninth Circuit when it vacated Cebull’s decision. Keeping Olsen out of Montana probably seemed like a good idea [Stephanie Woodard, "Slammin' Judges, Gunslingers—and Stunning Native Voting-Rights Wins," Indian Country Today Media Network, 2014.02.04].

So what did Frankenstein argue makes Olsen "overly aggressive"? In her argument before the Judge Molloy in Janaury, Frankenstein contended that Olsen "engaged in do-anything-to-win tactics..."

...scorched-earth methods of pursuing his cases, and that he engaged in the practice of law through intimidation and threats of personal liability, threats of making disciplinary complaints. They relayed to me a history of conduct regarding personal attacks and numerous instances of misrepresentations made to the Court [Sara Frankenstein, oral argument, U.S. Ninth District Court, Billings, Montana, 2014.01.22].

Scorched-earth methods, disciplinary complaints, misrepresentations... that sounds like what Frankenstein and fellow South Dakota lawyer lawyers have done to David Olsen every time he's tried to help litigants in South Dakota.

Olsen had previously offered his services to South Dakota Hutterite litigants in the Wipf v. Hutterville Hutterian Brethren case. In his response brief to the Ninth District, Olsen noted that the "public record" on which Frankenstein based her accusations consisted of statements from the opposing counsel trying to block him from helping Hutterville litigants. Frankenstein ignored the rulings of South Dakota Judges Jack Von Wald and Tony Portra and U.S. District Judge Lawrence Piersol that those statements gave no reason to bar Olsen from practicing in South Dakota. The lawyers fighting to keep Olsen out of Hutterville filed a complaint with the South Dakota State Bar's disciplinary board, but the board did not take any action to bar Olsen from practicing in South Dakota.

Judge Molloy was not impressed:

It is entirely unusual, in my experience, where there is a motion pending to admit an attorney pro hac vice, that that is resisted. And I have read everything in the file that pertains to the opposition to the motion to admit Mr. Olsen pro hac vice. And I had indicated by order setting this hearing that based upon what is in the record and my understanding of what has been provided by both sides, that we are in the territory of pet peeve. And I tried to telegraph to you that I think, if there is an issue here, it may be an issue that involves a question of whether or not this motion to -- or this brief in opposition to the motion to admit Mr. Olsen pro hac vice is indeed one, the underlying premise of which is vexatious and to multiply the proceedings [Judge Donald Molloy, oral statement, 2014.01.22].

Olsen added this little bonus to his argument for South Dakota political readers to explain where Frankenstein gets her peevish, vexatious, and ultimately unsuccessful arguments about his fitness to practice law:

Nor is it likely that counsel just happened to randomly run across the "public record" from a case in which she is not involved and determine, on her own, that it is necessary to report what she found. It is a matter of public record that County Defendants' attorney, Ms. Frankenstein, serves as Secretary for the South Dakota Republican Party. Not coincidentally, two of the big players, donors and fundraisers in that party are Harvey Jewett and Jeffrey Sveen, both of whom are named defendants in the RICO action in which Ms. Frankenstein located the "public records" she chose to selectively submit [Olsen, response brief, 2014.01.14].

Judge Molloy didn't rule on South Dakota's close-knit network of lawyers and Republicans, but he did dismiss Frankenstein's arguments almost immediately. Judge Molloy cautioned Frankenstein that "similar conduct will not be tolerated in the future" and admitted Olsen to practice before his court.

When it comes to trying to suppress Indian voting rights, Sara Frankenstein and her Republican friends seem willing to engage in whatever intimidating conduct they think necessary, including trying to deny Native litigants access to affordable counsel.