October 23, 2008

Suit alleges commissioners violated
state law, First Amendment rights

ABERDEEN, S.D. -- Brown County resident and taxpayer Chuck Pride Monday filed a lawsuit against the Brown County Commission and its tax-funded lobbying association, alleging that the commission violated state law and the First Amendment rights of Pride and other county taxpayers who support Initiated Measure 10 when commissioners formally adopted a resolution expressly urging voters to oppose the ballot proposal.

The lawsuit alleges that the commissioners expended public funds and collaborated with the state-established South Dakota Association of County Commissioners, the president of which serves on the Brown County Commission, in taking this unauthorized public act. Pride is represented in the lawsuit by Rapid City Attorney, Stephen Wesolick.

"Most taxpayers and voters understand that the government cannot act without spending public funds. If the Brown County Commissioners during an official meeting had formally adopted a resolution endorsing or opposing John McCain or Barak Obama, everyone would immediately recognize that as an abuse of government authority," Wesolick said in a statement Wednesday. "It is equally wrong for the government to formally and officially, at taxpayer expense, endorse or oppose any other candidate or ballot question, and we believe the South Dakota Supreme Court will also find it illegal."

Wesolick also serves as legal counsel to the ballot question committee supporting Measure 10 and was responsible for the drafting of state ballot initiative, which the Secretary of State officially defines on the ballot as follows: “An initiative to prohibit tax revenues from being used for lobbying or campaigning, to prohibit governmental bodies from lobbying, to prohibit government contractors from making campaign contributions, to prohibit government contracts when the contractor employs a legislator or legislative staff member, and to require contracts with government contractors to be published.”

The lawsuit alleges that commissioners violated a 2007 state law which says: "The state, an agency of the state, and the governing body of a county, municipality, or other political subdivision of the state may not expend or permit the expenditure of public funds for the purpose of influencing the nomination or election of any candidate, or for the petitioning of a ballot question on the ballot or the adoption or defeat of any ballot question."

Measure 10 would expand that existing prohibition by also prohibiting city and county officials from giving tax dollars to lobbying organizations such as the Municipal League and the Association of County Commissioners, which spend tax money lobbying the Legislature and campaigning for and against items on the ballot.

Brown County commissioners in August adopted a resolution entitled "Opposing Initiated Measure 10,” which the lawsuit noted "lists only negative viewpoints and opinions regarding Initiated Measure 10 and most clearly advocates opposition when it egregiously states, 'Now, therefore, let it be resolved, that Brown County strongly opposes Initiated Measure #10 and urges citizens of South Dakota to vote ‘NO’ on the measure.'”

Highlights of the lawsuit:

* "The Board of Commissioners has clearly engaged in express advocacy, as defined by state law, for defeat of a ballot question. ...The commissioners were not acting in their personal capacities to exercise their First Amendment rights; instead they were acting collectively in their positions as public officials of Brown County. ...The adoption of the resolution by the Board of Commissioners...amounts to an abuse of official power. As a result of this official public act, public tax funds including public sector resources have been expended in violation of (state law). This statute prohibits any governmental funding of electioneering activities either for or against a candidate for elective office, or in support of or opposition to a question presented to the voters in a ballot question."

* "In engaging in overt electioneering activities, the Board of Commissioners was using taxpayer dollars to take sides in an election to bestow an unfair advantage to the opposition campaign. Such governmental interference with the democratic electoral process is repugnant to the constitutional principles of a 'Republican Form of Government' and 'free and equal elections.' Plaintiff, along with other residents and taxpayers of Brown County, has in effect been compelled to finance the expression of views with which he disagrees, clearly an infringement of his First Amendment rights."

* The suit quotes extensively from the Attorney General's Official Opinion No. 88-28 entitled “Expenditure of Public Funds on Public Issues.” http://www.state.sd.us/attorney/applications/documents/oneDocument.asp?documentID=354&docType=3&bCameFromSearch=1

In that opinion, former Attorney General Roger Tellinghuisen wrote in 1988 that "municipalities, counties, and school districts may not expend public monies for purposes of promoting or advocating a particular position on an election measure.”

"Expenditures by municipalities and similar political subdivisions for purposes of campaigning for or against a particular ballot measure is certainly suspect and could be adjudicated a misappropriation of funds exposing government officials to potential civil liability," Tellinghuisen wrote. "...Attempts by the government to control or influence the public vote have been considered repugnant not only to...the United States Constitution but also to...the South Dakota Constitution which guarantee that elections shall be free and equal."

"Further, the use of public tax dollars for purposes of influencing election result s implicates the rights of those who dissent from the government-supported position," Tellinghuisen wrote. "Dissenters who are in effect compelled to finance the expression of views with which they disagree have reason to complain and may assert an infringement of First Amendment Rights. The First Amendment freedom-of-speech clause protects more than direct individual expression. It also prohibits laws or programs that compel adherence to government-proscribed views."

The suit notes that Tellinghuisen "concluded by stating that to avoid any claim of misappropriation the governing board involved must be careful to ensure that the published information constitutes a fair presentation of the relevant facts on both sides of the election issue." *

* The suit also alleges that commissioners and/or the Brown County auditor "printed large, expensive posters regarding the resolution with taxpayer money and displayed them prominently in multiple locations within the county building, a public access government building. Such display further amplified the impression that the content of the Resolution was the official position of the Board of Commissioners and attempted to influence any person observing the posters."

.
* The lawsuit flatly rejects the legal response of the Brown County State’s Attorney and Attorney General Larry Long, who both said the county's formal adoption of the resolution did not involve an impermissible expenditure of public funds. "The positions of the States Attorney and Attorney General can be summed up as follows," the suit said. "The explicit prohibition against governmental funding of electioneering activities clearly intended to influence, even interfere with, the outcome of 'free and pure' elections does not apply where such electioneering and public expenditures occur as part of regularly scheduled and conducted business of public officials – in performing their official acts – regardless of the amounts involved or the nature of the electioneering activity or communication. This is a glaring contradiction, one that cannot be reconciled by any reasonable reading of the statute."

* Instead, the suit said, "The Board of Commissioners adopted and posted this Resolution as an official public act. ...Inherent in the official public act is the use of public funds and public sector resources, such as: the compensated time of the Commissioners and public employees; physical facilities; computers, Internet, email; telecommunications devices; files, records and archives; machinery and equipment; office furniture and fittings; stationery and office supplies; publicly funded services, such as legal services."

* "By way of comparison, the term 'independent expenditure' is defined in (state law) as an expenditure made to expressly advocate the election or defeat of a clearly identified candidate, or the placement of a ballot question on the ballot, or the adoption or defeat of any ballot question. ...The official Campaign Finance Statement provided by the Secretary of State (a mandatory disclosure report) identifies categories of such expenditures to include, but not be limited to, advertising, consulting, interest, postage, printing, rent, salaries, telephone, travel, utilities, and 'other.' In applying the common usage and understanding of 'expenditures' in business, government and campaign finance, the prohibition...extends beyond cash, checks and similar mediums of exchange to include public sector resources and operational expenses. It is unreasonable to assert otherwise."

* "Any argument to the effect that the amount of the public funds used by the Board of Commissioners in engaging in this electioneering activity is (minimal) obviously misses the point of the statutory prohibition against public funding to influence election results. The public expenditures cannot be dismissed out-of-hand as (minimal) any more than the underlying constitutional principles. Likewise, it is an affront to federal and state constitutional principles to dismiss out-of-hand an official public act or resolution which supports 'Candidate A' over 'Candidate B' in an election merely because the public expenditures are (minimal). Yet, that is the logical conclusion of the (minimal) expenditure argument as used in relation to the ballot measure opposed by the government."

* "The resolution does not fall under any reasonable interpretation of 'presenting factual information solely for the purpose of educating the voters on a ballot question,' and is an obvious attempt to influence the resolution of issues which our constitution leaves to the ‘free election’ of the people – an improper distortion of the democratic electoral process. The resolution implicates the rights of Brown County voters and taxpayers who dissent from the government supported position...who are in effect compelled to finance the expression of views with which they disagree. Their views and First Amendment rights are infringed."

# # #