Of Venues and Convergence

I had an e-mail asking me something the other day.

It said, "why would the action to stop the State Senate from hearing the Sutton matter be filed in Moody county, instead of Hughes, where most matters against the state are sitused?"

O.K.. So, that got me hunting to try to figure out why the action would be handled over there instead of in Pierre where literally every other action against the Senate would normally be heard.

SDCL 15-5-2 notes in part that:
Venue where cause of action arose. Actions for the following causes, or upon the following instruments, must be tried in the county where the cause, or some part thereof, arose, or the forfeiture was declared, subject to the power of the court to change the place of trial

(2) Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who, by his command or his aid, shall do anything touching the duties of such officer;
Read all of the statute here. Why do we care about this? Because this law effectively says that you have to try the matter where the cause arose. While Sutton's attorneys might argue the cause arises from Sutton living in Moody county, I think that's too far of a stretch. In fact, I hear it has many attorneys from around the state scratching their heads.

Let's face it. The actual cause arises from the Senate trying to take action against Senator Sutton. So, at least according to my reading of this law, it should have been filed in Pierre, instead of his defense attorney Butler taking it to Judge Gienapp in Moody County. In fact, I'd find that choice of venue darn near ridiculous.

That, and the need to get the whole thing over and done with before session ends is probably a big point in why the Attorney General asked the Supreme Court to intervene. And according to the Argus Leader, the process is underway, and they made their arguments today.

Speaking of Butler and Gienapp, here's one for you trivia buffs. Has there ever been a legal proceeding where they were involved on the same side in a trial together? You bet. A rather famous South Dakota trial for that matter. The one that re-opened the door on the State's Death penalty after a multi-decade absence.*

As you can see here and here, they spent some time working together as the defense team for the man accused of raping and murdering 9 year old Rebecca O'Connell. That's right. Together they served as the defense for Donald Moeller, who ended up as the first man back on death row after a decades long break.

Curiously enough, in a year and a place where the legislature is probably going to be debating issues which will affect the manner in which a mutual client of theirs will be put to death, both of their names are coming up on an unrelated issue. Unrelated, but in the same venue nonetheless..


(* I'm sure there are others, but this is the most visible one I could find in my internet search).


Anonymous said…
I think somewhere on this blog i brought up the fact that I felt the legal action should have been filed in Pierre/For Pierre considering the fact the supposed activity happened in Fort Pierre.
Hummmmm, maybe this is why you recieved an email??????
Anonymous said…
The more preliminary question is what action has the State Senate taken which is to be stopped by the Court?

Is seperation of powers even at issue here...or is the ripeness doctrine?

I don't think an issue exists which the court can stop.

This is at best a delaying action on the part of Butler. I think we will see more courtroom antics from Butler before the week is out.
Anonymous said…
I think both previous posters are correct. This suit should have been brought in Pierre (or maybe Ft. Pierre) - NOT in Flandreau. And the Senate has not acted against Sutton yet, so there is nothing to enjoin. As for separation of powers, that will likely be the basis of the Court's decision if it decides in favor of the Senate.
know-it-all said…
a conspiracy between butler and gienapp. this explains everything.
Chris Madsen said…
You have to remember-- there is a difference between jurisdiction (the ability to hear the case) and venue (where the case is to be heard). The statute PP refers to is a venue statute. In South Dakota we have one Circuit Court. Even though it is organized into seven circuits, a Circuit Judge sitting in Sioux Falls can hear a case in Belle Fourche or anywhere else.

Venue has its roots in fairness and convenience to parties and witnesses. Generally, cases are venued where the act occurred- that's where the witnesses are or where the defendant lives. Of course, when you are talking about an injunction or issuance of some other writ against the SD Senate, the car crash sorts of venue rules are not quite as applicable.

Besides, objections as to venue can be waived. My point out of all this that jurisdictional issues can be fatal to a claim but venue issues would not be fatal.

PP- can't you get some copies of some orders or pleadings and get them posted here on the SDWC? It's hard for us lawyers in the classrooms to follow what is going on without reviewing the documents. I have never counted on the MSM to properly interpret and relate what goes on in a court hearing that invloves an issue more complicated than a criminal defendant being found guilty or not guilty.

This is really exctiting and interesting stuff. When this story broke, I knew we'd see some really interesting separation of powers questions and other issues involving the SD Constitution. Sure, the personalities are interesting, but people need to look past the personalities and keep their eyes on the "ball"-- the issues.
Anonymous said…
Yeah PP - can you get to the Supreme Court Clerk's office and get copies of briefs to post? I'd like to read them.
Anonymous said…
A prediction.....

1. The courts will confirm that the Senate does NOT have the power to EXPEL one of its members. That power is granted nowhere. The only constitutional grant of authority to the Legislature is that it can review the "qualifications" of its members. Simply put, that means, "was this person duly elected by the voters", and "is this person capable of holding the office in question" (a citizen, a resident of the right district, not a felon, and over age 18). The term "qualifications" does not mean "did this Senator grope anyone?".

2. The courts will CONFIRM that the Senate DOES have the power to DISCIPLINE its members. That is where the separation of powers issue kicks in. The Courts cannot stop something the Legislature has the authority to do.

3. The Senate will then continue with their hearings, but will not be able to consider expulsion...only censure, probation, and other non-expulsion remedies.

4. Dan Sutton will be censured for his conduct.

5. Life will go on.
Anonymous said…
Chris is right. Good thing some people remember the law. Bring a lawyer is also a good thing, you tend to work it so you know it and then again lawyers play the games. The comment "play the games" is not dirrected towards Chris.
Todd Epp said…

Great explanation of venue v. jurisdiction. Very clear and very helpful.

Anan 7:47:

Good point.

Anon 9:42:

I think you make some excellent points but how can a legislature discipline if it can't also expel? Seems to this lawyer that as long as basic due process rights are followed, they can do that.


Get your butt down to the Supreme Court, get the briefs, then scan them and put them up here. That's your duty as our blogger on the scene in Pierre. (grin)

Todd Epp
S.D. Watch
Todd Epp said…
In addition to Chris' excellent thoughts on venue v. jurisdiction, I think a good argument can be made that venue is proper in Flandreau as that is Sutton's residence and he was elected from that county. So any attempt to unseat him would be undoing the "will of the people" of that county (and district), who probably are the real party in interest here. When the writ was filed in Flandreau, it didn't strike me as odd at the time for these reasons.

Just a thougt. It's all moot as the Supreme are hearing the case. But we lawyers love these angels on the head of pin discussions.

Todd Epp
S.D. Watch
Tim Gebhart said…
I'm with Todd. I have not looked at the pleadings or researched it and I initially wondered why it wasn't in Hughes County. I speculate it was brought in Moody County on the theory that the action actually seeks to preserve the franchise of the voters of that county on the basis the Legislature's action might unseat one of their duly elected legislators. As Sutton's legislative district encompasses more than Moody County, that approach means it probably could have been brought in any of those counties (although all of them are in the Third Judicial Circuit).
Chris Madsen said…
PP- get those pleadings!! Epp, Gebhart and I have exhausted all the speculative theories as to venue and need to infuse some facts into this discussion if we are going to get any further.

But, in an effort to wring a little more discussion out of these theories . . . the venue question as to Moody versus Hughes is probably not going to be reached. Todd's theory on why Moody is as good as any. It's my understanding though, that Judge Gienapp entered some sort of ex parte writ, like a TRO, and then set a hearing for the Senate or whoever to show cause. With the involvement of the SD Supreme Court, there is no need to argue the venue issue. The Supreme Court will likely resolve the bigger issues, not the Circuit Court. Like I said, venue wouldn't be dispositive of the issues of what are qualifications for office, what power does the body have to discipline its own members and what options for "punishment" are available and what the judicial branch of this state can force the legislative branch to do or not do. So, just like the question of how many licks it takes to get to the center of a Tootsie Pop-- the world may never know whether Moody County is proper venue.

Got to say it again- this is interesting stuff. The points being raised on this topic are interesting.
GOP come home said…

no wonder you are on the blogs so much at not at the law office working for clients...

The "people" are not a party to this suit and as such they do not have a say in where the injuction takes place.

Further, and from the first year of law school, the Attorney General represents the people and so does the Senate who is being represented by him.

Again, the only real parties who have an interest in this case are Sutton and the State Senate.

The people spoke when they elected Larry Long and the Republicans in the Senate Majority.
Anonymous said…
forget the legal back and forth about venue and jurisdiction. this is political. the supreme court will not bite the hand that feeds them, the legislature. thus, sutton loses.
Anonymous said…
To Epp 11:02 from anon 9:42.

The reason they can discipline is because of separation of powers.

The courts have no business intervening regarding how the legislature conducts itself, or the rules it makes, as long as it has the general authority to make those rules. It has that authority by virtue of being a separate branch of government. Just like the Supreme Court makes the rules for itself and the courts. Just like the A.G.'s office and the Governor set out rules for how their offices work. The Legislature can discipline its own members how it sees fit.

HOWEVER, expulsion goes beyond discipline. There is no express provision by which the Legislature can simply decide to kick out one of its own. To expel a Senator would be to trample the rights of the voters.

The only provisions in the Constitution relative to the issue of who can and cannot be a Senator simply say the Senate is the judge of the "qualifications" of its members. (Article 3, section 9).

What that means is the SEnate gets to decide if the people who show up in Pierre on January 2nd meet the requirements set out for Senators in Article 3, Section 3. Those include: (a) a qualified elector in the district from which such person is chosen,(b) a citizen of the United States, (c) reached the age of twenty-one years, and (d) has been a resident of the state for two years next preceding election....along with some other rules, like, "no judges or clerks of court", no secretaries of state, attorneys general, no postmasters, etc.

So the short answer is, the Senate can discipline b/c of separation of powers, but the separation of powers argument does not create so much power in the Senate that it can just start kicking out its members. I'm not sure if this is exactly how Butler is framing this, but this is how I'd rule if I were a judge.
Anonymous said…
So larry long says the legislature can expel sutton, but my simple minded question is where does it say that in the constitution? If the courts can't do anything about it, can the legislature expel someone for any reason it wants and the courts can't do a thing about it? can one of you lawyer blogger types enlighten me.

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