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MERCER: The cost of court


Capitol Correspondent 

PIERRE — People who sign petitions for candidates and ballot measures don’t have to worry about the other side coming after them seeking payment for the costs after the election. But that’s not the case when people go to court challenging the government or another person.

They need to know up front that if they lose in court, they can wind up paying the other side’s expenses.

Some people claim it is intimidation. The other side of the coin is somebody has to cover the bill.

Lawsuits aren’t free. Consider a lawsuit brought by Stephanie Strong of Rapid City. She wanted to force state Rep. Brian Gosch, R-Rapid City, off the 2012 election ballot. So she sued Secretary of State Jason Gant.

Gant was represented in court by Rich Williams from the state Office of Attorney General. Gosch hired a private attorney. Strong represented herself.

Ultimately Circuit Judge Kathleen Trandahl found that Strong’s lawsuit was frivolous and malicious. The judge decided Strong owed Gosch approximately $21,000 for his legal costs.

The case is now on appeal to the South Dakota Supreme Court, with Strong still representing herself. The money hasn’t been paid.

Sara Frankenstein of Rapid City is the lawyer representing Gosch. She’s also been involved in the defense of Gant and Shannon and Fall River counties over a satellite-voting center at Pine Ridge.

That case was brought by the Four Directions organization on behalf of 25 people from the Pine Ridge Indian Reservation. They got what they wanted for the 2012 election when Gant complied without the need of a federal court order.

But when Four Directions pressed for more — a court order regarding future elections — U.S. District Judge Karen Schreier said that wasn’t appropriate. The judge ruled on that point in favor of Gant and the counties.

Because Gant and the counties prevailed they can seek costs from the 25 people whose names were used by Four Directions on the lawsuit. Approximately $6,300 is at stake.

“The whole idea is people stop and think before they file a lawsuit,” Frankenstein said in an interview.

“Our laws make sure there is a cost to contemplate before suits can be filed,” she said. “It’s meant to deter lawsuits that become frivolous or aren’t ripe.”

This isn’t new.

Just two years ago, parents and school districts faced a bill of $59,448.62 to compensate the defense after losing a lawsuit against state government over South Dakota’s schoolfunding system. State Attorney General Marty Jackley waived the collection of costs, in return for the parents and schools ending the lawsuit and promising they wouldn’t bring another school-funding lawsuit for 10 years.

Said Frankenstein, “It shouldn’t be a surprise.”


On an unrelated note, Lt. Gov. Matt Michels was incorrectly identified in last week’s Capitol Notebook column as a former Navy nurse. He was a nurse, and he was in the Navy, but he was a nurse before he went to the University of South Dakota law school, and he was a lawyer in the Navy before returning to Yankton to enter private practice.