Blue State Refugees et al v. Noem et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
BLUE STATE REFUGEES,
ROBERTSON,CHAD DOLLICK,
Plaintiffs,
LUKE
vs.
KRISTI NOEM, GOVERNOR OF SOUTH
DAKOTA, IN HER OFFICIAL CAPACITY;
SCOTT BOLLINGER, COMMISSIONER,
BUREAU OF ADMINISTATION, IN HIS
OFFICIAL AND INDIVIDUAL CAPACITIES;
BRENT GILL,MANAGER,BUILDINGS AND
GROUNDS,BUREAU OF ADMNISTRATION,
IN HIS OFFICIAL AND INDIVIDUAL
CAPACITIES; AND LEAH SVENDSEN,
SPECIAL PROJECTS COORDINATOR,
BUREAU OF ADMINISTRATION, IN HER
OFFICIAL AND INDIVIDUAL CAPACITIES;
Defendants.
3:21-CV-03024-RAL
OPINION AND ORDER CANCELLING
HEARING AND DENYING INJUNCTION
REQUEST AS MOOT
I. Facts
Blue State Refugees, a political organization; Luke Robertson; and Chad Dollick,
collectively "the Plaintiffs," emailed the South Dakota Bureau of Administration requesting a
permit to demonstrate on the South Dakota State Capitol grounds on November 8, 2021, and
November 9,2021, during a special session ofthe South Dakota Legislature. Doc. 1 at 2, 9. The
State Capitol grounds consist of over 200 acres of land and twenty-three buildings. Doc. 1 at 5.
The demonstration is intended to rally support for legislation that would bar employers,
educational institutions, and businesses from requiring vaccination from the Coronavirus
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("COVID-19")- Doc. 1 at 8-9. The Plaintiffs intended to make speeches, wave signs and flags,
and distribute political literature in support ofthe proposed legislation. Doc. 1 at 9. They estimate
that approximately thirty to forty people may attend based on membership in Blue State Refugees
and attendance at the organization's prior demonstrations. Doc. 1 at 9.
The Plaintiffs allege that when they sought a permit for their demonstration, officers ofthe
South Dakota Bureau of Administration informed them via email and over the phone that no
demonstrations or gatherings are permitted anywhere on State Capitol grounds from November to
December. Doc. 1 at 2,10;Doc.4 at 7-8. For these two months,the State is decorating the Capitol
for Christmas and holding its annual Christmas tree display. Doc. 1 at 2, 10; Doc. 4 at 7-8. In
particular, on the week of November 8, there will be scaffolding in the Capitol building and
preparations will begin to bring 100 trees into the Capitol building. Doc.4 at 7-8.
Special Projects Coordinator for the Bureau of Administration Leah Svendsen called the
Plaintiffs to inform them that the decoration and display period is considered an "event" under
administrative guidelines, and only one event per day can be held on Capitol grounds under those
guidelines. Doc. 1 at 11. Coordinator Svendsen further informed them that their proposed
demonstration would interfere with the Capitol decorators' work. Doc. 1 at 11. Decorations at
the Capitol are expected to be completed by November 22, 2021, prior to the official lighting
ceremony on November 23,2021. Doc.4 at 8.
On November 3, 2021, the Plaintiffs filed this complaint naming Governor Kristi Noem
and several officials for the South Dakota Bureau of Administration as the Defendants. Doc. 1.
The complaint asserted that the Defendants violated the Plaintiffs' First Amendment rights to free
speech, freedom to petition, and assembly. Doc. 1 at 12-20. The Plaintiffs seek a temporary
restraining order enjoining the Defendants from denying their petition for a demonstration permit
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or enjoining the Defendants from disrupting the Plaintiffs' demonstration for lack of a permit.
Doc. 1 at 21-22. On November 4, 2021, this Court issued an order notifying the Defendants of
the motion and scheduling a motion hearing for November 5,2021. Doc. 9. Early on the morning
ofNovember 5,the parties notified the Court that they had reached a stipulation agreement, which
advised that the motion hearing may no longer be necessary because the State had agreed to grant
a permit allowing the demonstration within a designated area of State Capitol grounds.
11. Legal Standard
Rule 65 ofthe Federal Rules of Civil Procedure provides as follows;
(b)Temporary Restraining Order.
(1)Issuing Without Notice. The court may issue a temporary restraining order without
written or oral notice to the adverse party or its attorney only if:
(A)specific facts in an affidavit or a verified complaint clearly show thatimmediate
and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition; and
(B)the movant's attorney certifies in writing any efforts made to give notice and
the reasons why it should not be required.
(2) Contents; Expiration. Every temporary restraining order issued without notice must
state the date and hour it was issued; describe the injury and state why it is irreparable;
state why the order was issued without notice; and be promptly filed in the clerk s office
and entered in the record. The order expires at the time after entry--not to exceed 14 dap-
-that the court sets, imless before that time the court, for good cause, extends it for a like
period or the adverse party consents to a longer extension. The reasons for an extension
must be entered in the record.
(3)Expediting the Preliminary-Injunction Hearing. Ifthe order is issued without notice,
the motion for a preliminary injunction must be set for hearing at the earliest possible time,
taking precedence over all other matters except hearings on older matters of the s^e
character. At the hearing, the party who obtained the order must proceed with the motion;
if the party does not,the court must dissolve the order.
(4)Motion to Dissolve. On 2 days' notice to the party who obtained the order without
notice-or on shorter notice set by the court-the adverse party may appear and move to
dissolve or modify the order. The court must then hear and decide the motion as promptly
as justice requires.
"A district coiut considering injunctive relief evaluates [a] the movanfs likelihood of
success on the merits, [b] the threat of irreparable harm to the movant, [c] the balance of the
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equities between the parties, and [d] whether an injunction is in the public interest." Powell v.
Ryan. 855 F.3d 899, 902 (8th Cir. 2017)(citing Datanhase Svs.. Inc. v. C L Svs.. Inc.. 640 F.2d
109, 114 (8th Cir. 1981)). "No single factor is dispositive, as the district court must balance all
factors to determine whether the injunction should issue. However, in deciding whether to grant
a preliminary injunction, likelihood of success on the merits is most significant." Turtle Island
Foods. SPG V. Thompson, 992 F.3d 694, 699 (8th Cir. 2021)(cleaned up and citations omitted).
Rule 65(a)(1) of the Federal Rules of Civil Procedure allows a court to "issue a preliminary
injunction only on notice to the adverse party" unless an exception under Rule 65(b)(1) applies.
III. Discussion
A. The movant's likelihood of success on the merits
"[Gjovemment entities are strictly limited in their ability to regulate private speech in ...
'traditional public fora.'" Pleasant Grove Citv. Utah v. Summum, 555 U.S. 460, 469 (2009)
(cleaned up and citations omitted). "Government restrictions on speech in a designated public
forum are subject to the same strict scrutiny as restrictions in a traditional public forum." Id at
470. "Content-based laws—those that target speech based on its communicative content—are
presumptively unconstitutional and may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests. Courts will apply a strict scrutiny analysis
when the regulation discriminates on the basis ofcontent, and a more lenient analysis to content-
neutral regulations." Josephine Havlak Photographer. Inc. v. Vill. of Twin Oaks, 864 F.3d 905,
913-14(8th Cir. 2017)(cleaned up and citations omitted).
"[I]n a public forum the government may impose reasonable restrictions on the time, place,
or manner of protected speech, provided the restrictions are justified without reference to the
content ofthe regulated speech,that they are narrowly tailored to serve a significant governmental
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interest, and that they leave open ample alternative channels for communication of the
information." Ward v. Rock Against Racism. 491 U.S. 781, 791 (1989)(cleaned up and citation
omitted); see also Perrv Educ. Ass'n v. Perry Loc. Educators' Ass'n,460 U.S. 37,45(1983)("The
state may also enforce regulations ofthe time, place, and manner ofexpression which are content-
neutral, are narrowly tailored to serve a significant government interest, and leave open ample
alternative channels of communication."). "So long as the means chosen are not substantially
broader than necessary to achieve the government's interest, however, the regulation will not be
invalid simply because a court concludes that the government's interest could be adequately served
by some less-speech-restrictive alternative." Ward,491 U.S. at 800.
The Plaintiffs do not dispute that the restrictions at issue are content neutral. ^doc. 4 at
14. However,they argue that the restrictions are not narrowly tailored to serve any significant
governmental interest and do not leave ample alternative channels of communication. Doc. 4 at
16-18. The "narrow tailoring requirement means not only that the regulation must promote a
substantial government interest that would be achieved less effectively absent the regulation, but
also that the factual situation demonstrates a real need for the government to act to protect its
interests." Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d 1094, 1099 (8th Cir. 2013)
(cleaned up and citations omitted). The protected interest cannot be abstract, and instead there
must be a genuine nexus between the regulation and the interest it seeks to serve. The
"[g]ovemment may not regulate expression in such a marmer that a substantial portion of the
burden on speech does not serve to advance its goals." Ward,491 U.S. at 799.
The State may have a significant interest in protecting its "Christmas at the Capitol"
tradition. Long-held government traditions such as this serve the State's constituents and may
foster civic engagement. However,a blanket restriction prohibiting any political gathering apart
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from gatherings ofthe Legislature itself—on State Capitol grounds for two months does not appear
to be narrowly tailored to any such interests. The Capitol grounds consist of over 200 acres, and
the "Christmas at the Capitol" display is contained within a relatively small area ofthese grounds.
Doc. 1 at 5. Therefore,forbidding any demonstration on Capitol grounds is not narrowly tailored
to protecting "Christmas at the Capitol" preparations. Further, the State does not appear to have
provided "ample alternative channels of communication." Perrv Educ. Ass'n, 460 U.S. at 45.
Therefore,the Plaintiffs have initially demonstrated a likelihood of success on the merits of their
claims.
B. The threat of irreparable harm to the movant
"Irreparable harm occurs when a party has no adequate remedy at law, typically because
its injuries cannot be fully compensated through an award of damages. Gen. Motors Corp. v.
Harry Brown's. LLC.563 F.3d 312, 319(8th Cir. 2009). As the Supreme Court recognized many
years ago, "the loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury." Elrod v. Bums, 427 U.S. 347, 373 (1976). In
order to demonstrate irreparable harm,a party must show that the harm is certain and great and of
such imminence that there is a clear and present need for equitable relief." Novus Franchising,
Inc. V. Dawson. 725 F.3d 885, 895 (8th Cir. 2013) (citation omitted). The harm of First
Amendment violations is well-recognized, and the Plaintiffs have, initially, demonstrated a
likelihood of success on the merits of their claim. Therefore, the Plaintiffs have alleged an
immediate and irreparable harm in support of their motion for relief. ^Powell v. Noble, 798
F.3d 690,702(8th Cir.2015)("If[the Plaintiffs] are correct and their First Amendment rights have
been violated, this constitutes an irreparable harm."(citation omitted)).
C. The balance of equities between the parties
The Plaintiffs have alleged a serious harm. "It is well-established that "[t]he loss of First
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Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury." Id If the Plaintiffs' demonstration is in an area apart from where decorating occurs,
reasonable time, place, and manner of expression regulation should not then expose the State to
harm.
D. Whether an injunction is in the public interest
When a governmental agency is the defendant,"the final two factors [i.e. the balance of
equities between the parties and whether an injunction is in the public interest] can 'merge' into
one." Noem v. Haaland, No. 3:21-CV-03009-RAL, 2021 WL 2221728, at *16 (D.S.D. June 2,
2021)(cleaned up and citation omitted);see also Nken v. Holder,556 U.S.418,435(2009)(stating
the same). Although the Plaintiffs' advocacy may be wrong-headed in supporting legislation of
dubious constitutionality, neither this Court nor the State can discriminate based on the content of
the Plaintiffs' proposed speech. The public interest generally is served by allowing the free
exercise of First Amendment rights.
IV. Conclusion and Order
The parties have stipulated to postpone the hearing that this Court had set, advising
that the State has agreed to grant a permit allowing the Plaintiffs to demonstrate in designated areas
on Capitol grounds. For good cause, it is
ORDERED that the November 5, 2021 hearing is cancelled and that the motion for a
temporary restraining order and injunction. Doc. 3,is denied as moot without prejudice to refiling
ifthe State somehow reneges on the issuance ofa permit. The parties are encouraged to file ajoint
motion to dismiss after the Plaintiffs' demonstration at the Capitol takes place.
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DATED this 5th day of November, 2021.
BY THE COURT:
ROBERTO A.LANGE
CHIEF JUDGE
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