South Dakota ballot group loses attorney fees because of new U.S. Supreme Court precedent

A South Dakota ballot question committee and its lawyer are among the first victims of a new U.S. Supreme Court precedent that lessens the likelihood of recovering attorney fees when suing the government for civil rights violations.

The high court’s decision in a separate case recently caused Dakotans for Health and its attorney, Jim Leach, to drop their effort to recover attorney fees in a lawsuit against Lawrence County. 

Leach and Dakotans for Health won a temporary restraining order last year against the county. The order blocked the county from restricting petition circulators to a designated area away from public sidewalks surrounding the courthouse complex in Deadwood. The circulators were gathering signatures for two measures — one that would have restored abortion rights, and one that sought to eliminate the state sales taxes on groceries. Both measures made it onto statewide ballots but were rejected by voters in November.

The county claimed its policy restricting circulators preserved public safety and protected the right of local citizens to conduct county business without disruption, but a federal judge ruled the policy “burdened substantially more speech than necessary.” 

The judge also ordered the county to pay $19,238.90 in attorney fees and costs, but the county filed an appeal to resist paying the money. Meanwhile, in February, the U.S. Supreme Court issued its decision in Lackey v. Stinnie.

The Supreme Court ruled that when civil rights plaintiffs win a preliminary injunction and the government relents without the need for a permanent injunction, the plaintiffs are not “prevailing parties” and are not eligible for court-awarded attorney fees.

In the Lawrence County case, the county relented and changed its policy, resulting in a voluntary dismissal of the case. Therefore, wrote Leach in a March motion to the appeals court, “under Lackey v. Stinnie, Dakotans for Health loses this appeal. So there is no need for anyone to spend any more time on this case.” A judge finalized the matter by dismissing the attorney fees and costs last week.

Rick Weiland, chairman of Dakotans for Health, said this week that the Lackey v. Stinnie ruling guts the incentive for lawyers to represent clients suing to protect their civil rights.

“The Supreme Court is attacking the people who go after the government for when it, basically, goes after its own citizens — things like First Amendment violations, which is what we showed the government did,” Weiland said.

Dakotans for Health also settled with Minnehaha County in a similar lawsuit last year, and that county has paid $54,815.15 in attorney fees and costs.