Combined South Dakota Motions to Reconsider In ICWA Case

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UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

OGALALA SIOUX TRIBE and

ROSEBUD SIOUX TRIBE, as parens

patriae, to protect the rights of their

tribal members; and MADONNA

PAPPAN, and LISA YOUNG,

individually and on behalf of all

other persons similarly situated,

Plaintiffs,

v.

LUANN VAN HUNNIK; MARK

VARGO; HONORABLE JEFF DAVIS;

and LYNNE A. VALENTI, in

their official capacities,

Defendants.

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C13-5020

JUDGE DAVIS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO

ALTER, AMEND, OR RECONSIDER

PURSUANT TO RULE 59 or RULE 60

Judge Davis, by and through his undersigned counsel of record, does hereby submit his

Memorandum of Law in Support of his Motion to Alter, Amend, or Reconsider.

INTRODUCTION

On March 21, 2013, Plaintiffs filed this action asserting, among other things,

defendants policies, practices and procedures relating to the removal of Native American

children from their homes during state court 48-hour hearings violate ICWA and the Due Process

Clause of the Fourteenth Amendment. (Docket 1 & 150 at 8.) Plaintiffs complaint demands

prospective relief based upon 42 U.S.C. 1983.

On May 17, 2013, Defendants moved to dismiss Plaintiffs Complaint because, among

other reasons, Defendants were not final policymakers, under Monell v. Dept. of Soc. Servs of

City of New York, 436 U.S. 658, 694 (1978). (Docket 34, at 12-13.) In his Memorandum of Law

in Support of his Motion to Dismiss, Judge Davis set out the myriad ways in which Plaintiffs

Case 5:13-cv-05020-JLV Document 172 Filed 04/27/15 Page 1 of 15 PageID #: 4040

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could appeal or otherwise challenge a state court judges order on temporary custody petitions

(TCOs). (Document 34, at 28.) Those arguments are incorporated herein by reference.

On January 28, 2014, the Court rejected Defendants arguments in total, and denied

Defendants Motions to Dismiss. (Docket 69.) In so doing, the Court rejected Judge Davis

position that he is not a final policymaker. (Docket 69, at 21.)

On July 14, 2014, after limited discovery, including no depositions, Plaintiffs moved for

partial summary judgment on claims related to 25 U.S.C. 1922, and the Due Process Clause of

the Fourteenth Amendment to the United States Constitution. (Docket 108 & 110) Again, in

response Judge Davis argued that he was not a final policymaker. (Docket 129 at 19.)

RELIEF REQUESTED

On March 30, 2015, the Court entered an order granting plaintiffs motions (Docket 108

and 110) for partial summary judgment, concluding that plaintiffs are entitled to injunctive and

declaratory relief. Neither an injunction, nor a declaratory judgment has yet issued. (Docket 150

at 44-45.) Among the findings made by the Court on summary judgment, is that Judge Davis is a

final policymaker as a matter of law in setting the policies, practices, and customs challenged

in this lawsuit. (Docket 150 at 22-27.) In order to arrive at the conclusion that Judge Davis is a

final policymaker, the Court found as a matter of law that orders granting petitions for

temporary custody in 48-hour hearings are not subject to appellate review. (Docket 150, at 25

(citing SDCL 15-26A-3; Midcom, Inc. v. Oehlerking, 722 N.W.2d 725 (S.D. 2006.) (finding

[t]here is no right of appellate review of Judge Davis 48-hour hearing decisions because those

decisions are not a final judgment subject to appellate review under South Dakota law.) Judge

Davis contends that this conclusion is a manifest error of law, requiring reconsideration under

Rule 59 or 60 of the Federal Rules of Civil Procedure.

The Federal Rules of Civil Procedure do not mention motions to reconsider. The Eighth


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Circuit has instructed courts to consider such motions either under Rule 59(e) or Rule 60(b).

Alliance Communs. Coop., Inc. v. Global crossing Telecomms., Inc., 690 F.Supp.2d 889, 893 (D.

S.D. 2010)(citing Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir. 1988); and Hagerman v. Yukon

Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)(other citations omitted). Rule 59(e) refers to entry

of judgment, but some authority indicates that a district court may entertain a Rule 59(e) motion

before the entry of final judgment on a separate document. Id. "Motions for reconsideration serve a

limited function: to correct manifest errors of law or fact or to present newly discovered evidence."

Id. District courts have broad discretion in determining whether to grant a motion for

reconsideration. Id.

The basis for this Motion lies in the manifest error of law reached by the Court that Judge

Davis is a final policymaker with respect to procedures employed in his courtroom because his

decisions are not subject to appellate review. (Docket 150, at 25.) Whether an individual is a

final policymaker is a question of law to be resolved by the trial judge before the case is

submitted to the jury. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989); see also

Schlimgen v. City of Rapid City, 2000 DSD 13, 15, 83 F. Supp. 2d 1061, 1067 (D.S.D. 2000).

Under South Dakota state law, there appear to be at least four means for the South Dakota

Supreme Court to review and ratify or reject procedures used by a circuit court judge during a

temporary custody hearing. Two of those are statutory avenues of direct appeal, SDCL 15-26A-

3(4) and (6), and two are extraordinary relief through writs, i.e. writs of mandamus/prohibition,

or writs of habeas corpus. SDCL 21-20-1, SDCL 21-30-1, and SDCL 21-27-5. These channels of

review deprive Judge Davis of final policymaker authority under Monell. 436 U.S. 658.

The determination of whether Judge Davis has final policymaker authority is a

threshold issue in this case. As such, Judge Davis respectfully requests the Court reconsider its

order granting Plaintiffs Motions for Partial Summary Judgment. (Docket 108 & 110.)


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LEGAL ANALYSIS

A policy maker is one who speaks with final policymaking authority . . . concerning

the action alleged to have caused the particular constitutional or statutory violation at issue, that

is one with the power to make official policy on a particular issue. (Docket 150, at 22 (citing

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). No court has concluded that a

constitutionally elected state court judge is a final policymaker under Monell v. Dept. of Soc.

Servs of City of New York, 436 U.S. 658, 694 (1978). Cf. Williams v. Butler, 863 F.2d 1398,

1399 (8th Cir. 1988) (finding municipal traffic judge was final policymaker because the city had

delegated to the judge the authority to make City policy as to employment matters in his

court.).

Pursuant to Monell,

municipal liability will attach when the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation,

or decision officially adopted and promulgated by that body's officers. . . . Less formal governmental actions may also result in liability if practices of state officials [are] so permanent and well settled as to constitute a custom or usage with the force of law.

Williams, 863 F.2d at 1400 (8th Cir. 1988) (citations omitted).

In Monell itself, it was undisputed that there had been an official policy requiring

city employees to take actions that were unconstitutional under this Court's

decisions. Without attempting to draw the line . . . between actions taken pursuant

to official policy and the independent actions of employees . . . and agents, the

Monell Court left the full contours of municipal liability under 1983 to be developed further on another day.

City of St. Louis v. Praprotnik, 485 U.S. 112, 122-23 (citations omitted). At a minimum, the

governmental official must have final policymaking authority, which is a question of state law.

Id. at 123 (emphasis added).

I. Errors of Law

On this record, the Court has concluded that Judge Davis was a final policymaker as a


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matter of law because there is no right of appellate review of Judge Davis 48-hour hearings.

(Docket 150, at 25.) However, the South Dakota Supreme Court has never addressed the ability

of a parent to take a direct appeal of a temporary custody order in the context of a 48-hour

hearing. Moreover, a right to direct appeal is not dispositive of whether Judge Davis has final

policymaking authority. [W]hen a subordinate's decision is subject to review by the

municipality's authorized policymakers, they have retained the authority to measure the official's

conduct for conformance with their policies. If the authorized policymakers approve a

subordinate's decision and the basis for it, their ratification would be chargeable to the

municipality because their decision is final. Praprotnik, 485 U.S. at 127 (emphasis in original).

The South Dakota Constitution provides:

The Supreme Court shall have such appellate jurisdiction as may be provided by

the Legislature, and the Supreme Court or any justice thereof may issue any

original or remedial writ which shall then be heard and determined by that court.

The Governor has authority to require opinions of the Supreme Court upon

important questions of law involved in the exercise of his executive power and

upon solemn occasions.

The circuit courts have original jurisdiction in all cases except as to any limited

original jurisdiction granted to other courts by the Legislature. The circuit courts

and judges thereof have the power to issue, hear and determine all original and

remedial writs. The circuit courts have such appellate jurisdiction as may be

provided by law.

S.D. Const. Art. 5, 5. See also S.D. Const. Art. 5, 11. The South Dakota Legislature has

provided for at least four avenues for the South Dakota Supreme Court to review and ratify or

reject the rules or procedures used by a circuit court judge during a temporary custody hearing.

SDCL 15-26A-3(4) and (6) SDCL 21-20-1, SDCL 21-30-1, and SDCL 21-27-5. These avenues

of appeal deprive Judge Davis of final policymaker authority. Praprotnik, 485 U.S. at 127.


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In other words, these avenues of review achieve an incomplete delegation of authority to

Judge Davis from the South Dakota Supreme Court. The Eight Circuit has explained that

a very fine line exists between delegating final policymaking authority to an

official, for which a municipality may be held liable, and entrusting discretionary

authority to that official, for which no liability attaches. The distinction, we

believe, lies in the amount of authority retained by the authorized policymakers. A

clear message from Praprotnik is that an incomplete delegation of authority-i.e.,

the right of review is retained-will not result in municipal liability, whereas an

absolute delegation of authority may result in liability on the part of the

municipality.

Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir. 1988). Here, there is an incomplete delegation

of authority. See e.g. Cheyenne River Sioux Tribe v. Davis, 2012 S.D. 69, 822 N.W.2d 62. As

such, the South Dakota Supreme Court, and not Judge Davis, has final policymaking authority

with respect to the procedures used in 48-hour hearings.

1. SDCL 15-26A-3(4) May Afford Appellate Review As a Matter of Right for

Temporary Custody Orders (TCOs).

The South Dakota Supreme Court has analyzed the issue of the finality of TCOs in the

other domestic arenas. See Saint-Pierre v. Saint Pierre, 357 N.W.2d 250, 254 (S.D. 1984). In

Saint-Pierre v. Saint-Pierre, the South Dakota Supreme Court was reviewing a divorce decree,

which included a TCO, granting custody of the parties child to the father. Id. In challenging the

decree, the father argued that the TCO was not reviewable because the order was not final, and

therefore, could only be appealed pursuant to SDCL 15-26A-13. Id. at 254.

The South Dakota Supreme Court disagreed. Id. The court explained that [i]n a

technical sense . . . all custody orders are temporary inasmuch as they are always subject to being

modified . . . Id. Though temporary in this sense, custody orders do not lapse or become

ineffective merely by the passage of time. Id. Therefore, the court concluded that TCOs

resulting from divorce decrees can fall within the classification of those judgment and orders


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that are appealable as a matter of right under the provisions of SDCL 15-26A-3(4). Id.

This is also true of TCOs issued in child abuse and neglect cases. Although TCOs are

required to be reviewed every sixty days, SDCL 26-7A-19(c), any lapse of this requirement does

not automatically result in the restoration of the child to his or her parents. See SDCL 26-7A-16

(stating an apparent, alleged, or adjudicated abused or neglected child . . . may be held in

temporary custody until released by order of the court.) Unquestionably, the court in Saint-

Pierre was looking at a different type of TCO, but the rationale applied merits equal

consideration in the context of child protection cases. Such orders may be appealed as a matter of

right, pursuant to SDCL 15-26A-3(4).

South Dakota Codified Law, section 15-26A-3(4) allows for an appeal as a matter of

right from [a]ny final order affecting a substantial right, made in special proceedings, or upon a

summary application in an action after judgment. The South Dakota Supreme Court has

confirmed this right in Saint-Pierre. Saint-Pierre, 357 N.W.2d at 254. There is no reason to

believe that the South Dakota Supreme Court would treat TCOs resulting from an abuse and

neglect case any differently from a TCOs resulting from a divorce decree. After all, temporary

custody is temporary custody. Despite the different settings, the issue is the same, and appears to

be controlling. Furthermore, this Court may not engage any presumption that the [South

Dakota Supreme Court] will not safeguard federal constitutional rights. Neal v. Wilson, 112

F.3d 351, 357 (8th Cir.1997) (quoting Middlesex County Ethics Committee, 457 U.S. at 431).

If the Court deems Saint-Pierre as non-controlling on this issue, then at a minimum, the

issue, as it relates to 48-hour hearing decisions, should be certified to the South Dakota Supreme

Court.

Certification is within the federal court's discretion. Certification is appropriate when the state court's construction of an uncertain state law could make resolution

of federal constitutional questions unnecessary. The South Dakota Supreme


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Court may answer questions of law certified to it which may be determinative of the cause pending in the certifying court and [when] it appears ... that there is no

controlling precedent in the decisions of the Supreme Court of [South Dakota].

Bone Shirt v. Hazeltine, 2005 S.D. 84, 6, 700 N.W.2d 746, 749 opinion after certified question

answered, 387 F. Supp. 2d 1035 (D.S.D. 2005) aff'd, 461 F.3d 1011 (8th Cir. 2006) (citing

Perkins v. Clark Equipment Co., 823 F.2d 207, 209 (8th Cir.1987); Planned Parenthood, Sioux

Falls Clinic v. Miller, 63 F.3d 1452, 1463 (8th Cir.1995); SDCL 1524A1.). Having not been

certified to the South Dakota Supreme Court, pursuant to SDCL 15-24A-1, the parties, and more

importantly the Court, are left to guess as to the limitations of Judge Davis authority. Given that

this issue is also paramount to the scope of South Dakota Supreme Courts authority, it would be

appropriate to allow the high court to be final speaker on the scope of its own constitutional

authority.

Judge Davis would respectfully request the Court reconsider, and alter its judgment in

light of a parents ostensible right to direct appeal of temporary custody orders issued at the

conclusion of 48-hour hearings.

2. SDCL 15-26A-3(6) Affords Discretionary Appellate Review of TCOs.

In addition to the foregoing, SDCL 15-26A-3(6) can be used for a discretionary appeal

to the South Dakota Supreme Court from [a]ny other intermediate order made before trial, any

appeal under this subdivision, however, being not a matter of right but of sound judicial

discretion, and to be allowed by the Supreme Court in the manner provided by rules of such

court only when the court considers that the ends of justice will be served by determination of

the questions involved without awaiting the final determination of the action or proceeding[.]

SDCL 15-26A-3(6).

Through a discretionary appeal, parties at 48-hour hearings may have TCOs reviewed by

the South Dakota Supreme Court.


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An appeal from an intermediate order made before trial as prescribed by

subdivision 15-26A-3(6) may be sought by filing a petition for permission to

appeal, together with proof of service thereof upon all other parties to the action

in circuit court, with the clerk of the Supreme Court within ten days after notice of

entry of such order. When a petition is forwarded to the clerk for filing by mail it

shall be accompanied by an affidavit of mailing or certificate of service of mailing

and shall be deemed to be filed as of the date of mailing . . .

SDCL 15-26A-13. This procedure would further deprive Judge Davis of final policymaking

authority, because the South Dakota Supreme Court, through the legislature, has retained the

authority to measure the officials conduct for conformance with [its] policies. Praprotnik, 485

U.S. at 127.

In Saint-Pierre the South Dakota Supreme Court discussed the use of SDCL 15-26A-3(6)

and SDCL 15-26A-13, as a means of challenging a TCO. Saint-Pierre, 357 N.W.2d at 254.

Although the court in Saint-Pierre declined to compel a party to follow SDCL 15-26A-13, for

purposes of a discretionary appellate review, there is no reason to assume it could not be used for

such purposes. TCOs are, after all, an intermediate order made before [adjudication].

Plaintiffs cannot dispute that the ends of justice [would] be served by determination of the

questions involved without awaiting the final determination of the action or proceeding. Id.

Thus, it would be logical to assume that parties to 48-hour hearings would retain the right to

discretionary appeals pursuant to SDCL 15-26A-3(6) and 15-26A-13. If such an appeal is taken,

Judge Davis would be deprived of final policymaking authority on the issue. It would also

provide yet another reason why Judge Davis is not, and cannot, be a final policymaker because

his decisions are subject to appellate review.

3. Parties to Child Custody Proceedings May Seek a Writ of Habeas Corpus.

In addition to the parties statutory rights of appeal, parties to any child abuse and neglect

proceeding retain the right to petition the circuit court for a writ of habeas corpus. See

Application of G.K., 248 N.W.2d 380, 382-83 (S.D. 1977) (citing SDCL 21-27-5); see also S.D.


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Const. Art 6, 8. The South Dakota Supreme Court has explained that [i]llegal detention is the

basis for issuance of a writ of habeas corpus. When custody of a child is involved, however, the

scope of the writ is enlarged and the courts equitable powers over the child are invoked.

Application of G.K., 248 N.W.2d at 382-83 (citations omitted).

Any decision made by any circuit court judge on a petition for habeas corpus is subject to

review by the South Dakota Supreme Court. See SDCL 21-27-18.1. Although this procedure is

not a direct right of appeal, the ability of parents to seek a writ of habeas corpus provides yet

another means of review before the body with final policymaking authority, i.e. the South

Dakota Supreme Court. Therefore, there has not been a complete delegation of authority to Judge

Davis, and he lacks final policymaking authority.

4. Parties to Child Custody Proceedings May Seek a Writ of Mandamus.

The final manner of reviewing the procedures in 48-hour hearings is the procedure used

in Cheyenne River Sioux Tribe v. Davis, 2012 S.D. 69, 822 N.W.2d 62. There, the Cheyenne

River Sioux Tribe applied for a writ of mandamus or prohibition, pursuant to SDCL 21-20-1, and

SDCL 21-30-1. The Cheyenne River Sioux Tribe applied for the writ, contending that Judge

Davis 48-hour hearing violated the Tribes federal and state rights, and that it was irreparably

harmed by the lack of any mechanism to contest the trial courts failure to fully follow ICWA at

the temporary custody stage. Cheyenne River, 2012 S.D. 69, 8, 822 N.W.2d 62.

In order to prevail, on a writ of mandamus or prohibition, the petitioner must show a clear

legal right to performance of the specific duty sought to be compelled and the respondent must

have a definite legal obligation to perform that duty. Krsnak v. South Dakota Dept. of

Environment and Natural Resources, 2012 S.D 89, 9, 824 N.W.2d 429. In Cheyenne River, the

Tribe, as a party to the 48-hour hearing, had the opportunity to contest many of the procedures

determined by the Court on summary judgment (Docket 150) before the body with actual


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policymaking authority in South Dakota.

This procedure allows the South Dakota Supreme Court to review, and ratify or reject the

decisions made by circuit court judges. All parties to 48-hour hearings retain this right.

Cheyenne River illustrates a clear example of a pronouncement from the body that speaks with

final policymaking authority for the state of South Dakota on the procedures used at 48-hour

hearings. That body is the South Dakota Supreme Court, not Judge Davis. This extraordinary

remedy divests Judge Davis of final policymaking authority, under Monell, because it vests the

ultimate decision-making authority in the South Dakota Supreme Court, not the circuit court.

Finally, it is also worth noting that, in addition to direct challenges, the parties also may

make an intermediate appeal regarding an order of adjudication with the permission of the court

in accordance with the rules of appellate procedure. See SDCL 26-7A-87. Plaintiffs would

further have the right to appeal after the final disposition of the matter. See SDCL 26-7A-90.

These channels of review further deprive Judge Davis of final policymaking authority.

II. Errors of Fact

Finally, Judge Davis also objects to several factual findings made by the Court with

respect to Judge Davis alleged policies (Docket 150, at 24 and 36). Summary judgment is

appropriate when there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law. Fed.R.Civ.P. 56(a). But, a court must view the evidence in the

light most favorable to the opposing party. Tolan v. Cotton, U.S. , 134 S.Ct. 1861,

1866, 1868, 188 L.Ed.2d 895 (2014) (per curiam) (By weighing the evidence and reaching

factual inferences contrary to Tolan's competent evidence, the court below neglected to adhere to

the fundamental principle that at the summary judgment stage, reasonable inferences should be

drawn in favor of the nonmoving party. (emphasis added)). Chavero-Linares v. Smith, __ F.3d

__; No. 13-3532, 2015 WL 1610223, at *2 (8th Cir. April 13, 2015).


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Specifically, the Court found that Judge Davis stated that no testimony is permitted at the

48-hour hearing. (Docket 150, at 41.) This is different from Judge Davis actual statement that no

oral testimony is taken. (Docket 130 at 5.) This led the Court to conclude that Judge Davis did

not permit the 48-hour hearings to be conducted as evidentiary hearings. Cf. SD Guidelines at

p. 35 (stating RULES OF EVIDENCE DO NOT APPLY SDCL 26-7A-56. Instead the Court

may design its own rules of evidence to fully inform the Court.)

In Cheyenne River, one of the core issues addressed was the Tribes assertion that there

was a violation of state law in the 48-hour hearing based upon an alleged lack of evidence of a

need for temporary custody as required by SDCL 26-7A-18. Cheyenne River Sioux Tribe, 2012

S.D. 69, 12. Essentially the Tribe was claiming there was no evidentiary hearing in the sense

that there was no evidence presented to the Court for purposes of continued temporary custody.

In rejecting the Tribes assertion, the South Dakota Supreme Court stated:

. . . . Tribe ignores, however, that the temporary custody hearing proceeded on

State's petition for temporary custody and the accompanying police report and

ICWA affidavit from a DSS specialist. The report and affidavit set forth facts

concerning the need for temporary custody. While these documents might not

constitute evidence within the normal bounds of the Rules of Evidence, those

rules are not applicable at a temporary custody hearing. See SDCL 267A34 (stating that the Rules of Civil Procedure apply to adjudicatory hearings, but that

all other juvenile hearings are to be conducted to inform the court of the status of

the child and to ascertain the child's history, environment, and condition); SDCL

267A56 (stating that the Rules of Evidence apply to adjudicatory hearings, but that all other juvenile hearings are to be conducted under rules prescribed by the

court to inform it of the status of the child and to ascertain the child's history,

environment and condition). Therefore, the police report and affidavit provided

sufficient evidence of a need for temporary custody to permit the trial courts to

proceed here.

Cheyenne River, 2012 S. D. 69, 12 (emphasis added).

The material factual conclusion that the 48-hour hearing is an evidentiary hearing led

the Court to find that Judge Davis does not permit Indian parents to present evidence opposing

the States petition for temporary custody; that Judge Davis prevents Indian parents from cross


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examining witnesses who support the petition; and that Judge Davis does not require the States

Attorney or DSS to call witnesses to support removal of the children or permit testimony on

immediate risk of harm if the children are returned to the parents. (Docket 150, at 26.)

The importance of pointing out this material factual error cannot be understated. Such

error led to this Court to conclude that Judge Daviss authority in conducting 48-hour hearings

was as a policy maker, which, as discussed above, he is not.

CONCLUSION

Because Judge Davis decisions in 48-hour hearings are subject to review before the

South Dakota Supreme Court by statute, as well as extraordinary measures, he is not, and cannot,

be a final policymaker under Monell. In this case, through SDCL 15-26A-3(4) and (6), SDCL

15-26A-13, and other extraordinary remedies, the South Dakota Supreme Court has retained the

authority to measure [Judge Davis] conduct for conformance with [its] policies. Praprotnik,

485 U.S. at 127. Accordingly, Judge Davis respectfully requests the Court reconsider its order

on Plaintiffs Motions for Partial Summary Judgment (Docket 150).

Dated this 27th day of April, 2015.

/s/ Nathan R. Oviatt

Special Assistant Attorney General

Nathan R. Oviatt

GOODSELL QUINN, LLP

246 Founders Park Dr., Suite 201

P.O. Box 9249

Rapid City, SD 57709-9249

Tel: (605) 343-3000

And,

Steven Blair, Assistant Attorney General

Ann Mines-Bailey, Assistant Attorney General

Attorney Generals Office 1302 E. Highway 14, Suite 1

Pierre, S.D. 57501

Tel: (605)-773-3215

Attorneys for Hon. Jeff Davis


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CERTIFICATE OF SERVICE

I hereby certify that on the 27th day of April, 2015, I electronically filed the foregoing

document with the Clerk of the Court for the United States District Court for the Western

Division by using the CM/ECF system. Participants in the case who are registered CM/ECF

users will be served by the CM/ECF system.

GOODSELL QUINN, LLP

BY: /s/ Nathan R. Oviatt


Nathan R. Oviatt


P.O. Box 9249


Tel: (605) 343-3000

[email protected]


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UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

OGALALA SIOUX TRIBE and

ROSEBUD SIOUX TRIBE, as parens

patriae, to protect the rights of their

tribal members; and MADONNA

PAPPAN, and LISA YOUNG,

individually and on behalf of all

other persons similarly situated,

Plaintiffs,

v.

LUANN VAN HUNNIK; MARK

VARGO; HONORABLE JEFF DAVIS;

and LYNNE A. VALENTI, in

their official capacities,

Defendants.

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C13-5020

JUDGE DAVIS MOTION TO ALTER, AMEND, OR RECONSIDER PURSUANT

TO RULE 59 or RULE 60

Defendant Honorable Jeff Davis, through his undersigned attorneys of record, hereby

moves the Court to reconsider, pursuant to Rule 59, or alternatively Rule 60 of the Federal Rules

of Civil Procedure, the Courts Order Granting Plaintiffs Motions for Partial Summary

Judgment (Docket 150), as follows:

1. Defendant Honorable Jeff Davis moves this Court pursuant to Rule

59(a)(2) to amend the findings of fact and conclusions of law in its March 30,

2015, Order (Docket 150) and enter a new Order or to alter or amend the Order

for reasons stated in the Memorandum of Law in Support filed

contemporaneously with this Motion. In addition, or in the alternative;

2. Defendant Honorable Jeff Davis moves the Court pursuant to Rule 60 for

relief from the Order for reasons stated in the Memorandum of Law in Support


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filed contemporaneously with this Motion.

Dated this 27th day of April, 2015.

/s/ Nathan R. Oviatt


Nathan R. Oviatt

GOODSELL QUINN, LLP


P.O. Box 9249


Tel: (605) 343-3000

And,

Steven Blair, Assistant Attorney General

Ann Mines, Assistant Attorney General

Attorney Generals Office 1302 E. Highway 14, Suite 1

Pierre, S.D. 57501

Tel: (605)-773-3215

Attorneys for Hon. Jeff Davis


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I hereby certify that on the 27th day of April, 2015, I electronically filed the foregoing

document with the Clerk of the Court for the United States District Court for the Western

Division by using the CM/ECF system. Participants in the case who are registered CM/ECF

users will be served by the CM/ECF system.

GOODSELL QUINN, LLP

BY: /s/ Nathan R. Oviatt


Nathan R. Oviatt


P.O. Box 9249


Tel: (605) 343-3000

[email protected]


UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patrie, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated, Plaintiffs, v. LUANN VAN HUNNIK; MARK VARGO; HON. JEFF DAVIS; and LYNNE A. VALENTI in their official capacities. Defendants.

) ) ) ) )))) ) ) )))))))

Case No.: 13-5020

________________________________________________________________________________________________________

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO RECONSIDER ________________________________________________________________________________________________________

Robert L. Morris, attorney for LuAnn Van Hunnik, Regional Manager for the South

Dakota Department of Social Services Division of Child Protection Services offices in Region 1,

Pennington County, Rapid City, South Dakota, and Lynne A. Valenti, Secretary of the South

Dakota Department of Social Services, submits this Memorandum of Law in Support of Motion

to Reconsider.

A. FRCP 59 and 60 Standards

Rule 59(e) allows a party the right to move a court to alter or amend a judgment no later

than 28 days after the entry of the judgment. Fed.R.Civ.P. 59(e). Rule 60 allows a court to

correct a clerical mistake or a mistake arising from an oversight or omission whenever one is

found in a judgment, order, or other part of the record. Rule 60(b)(1) allows for relief for


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mistake, as long as the motion is made within one year. Rule 60(b)(6) allows for relief for any

other reason that justifies relief. Movants challenging a judgment pursuant to Rule 60(b)(6)

must do so within a reasonable time after entry of the judgment or order.

The Federal Rules of Civil Procedure do not mention motions to reconsider. The Eighth

Circuit has instructed courts to consider such motions either under Rule 59(e) or Rule 60(b). Alliance

Communs. Coop., Inc. v. Global crossing Telecomms., Inc., 690 F.Supp.2d 889, 893 (D. S.D.

2010)(citing Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir. 1988); and Hagerman v. Yukon

Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)(other citations omitted). Rule 59(e) refers to entry

of judgment, but some authority indicates that a district court may entertain a Rule 59(e) motion

before the entry of final judgment on a separate document. Id. Motions for reconsideration serve a

limited function: to correct manifest errors of law or fact or to present newly discovered evidence. Id.

District courts have broad discretion in determining whether to grant a motion for reconsideration.

Id.

B. Basis for the Motion and Relief Sought

Ms. Valenti and Ms. Van Hunnik seek relief from the Courts March 30, 2015 Order.

[Document 150]. In the Order, the Court first focused on the Plaintiffs claims that Judge Davis

allegedly initiated six policies, practices, and customs for 48-hour hearings which allegedly

violate the Due Process Clause and ICWA. [Document 150, pg. 24]. The Court then focused

upon claims that the Defendants allegedly have violated the Due Process Clause since January

1, 2010 in five different areas. [Document 150, pg. 36].

As to Judge Daviss alleged policies, the Court imposed liability as a matter of law upon

Ms. Valenti and Ms. Van Hunnik for acquiescing or ratifying Judge Daviss alleged policies.

[Document 150, pg. 27]. As to the Due Process claim, the Court determined that judgment as a


3

matter of law against the Defendants would be entered. [Document 150, pg. 42].

Ms. Valenti and Ms. Van Hunnik assert that factual and legal errors exist as to their

liability. This motion is made to correct those errors and to ask the Court to reconsider its

rulings and to deny the Plaintiffs motions as to Ms. Valenti and Ms. Van Hunnik.

C. Factual Errors in the Order

Summary judgment is appropriate when there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A properly

supported motion for summary judgment is not defeated by self-serving affidavits. Rather, the

plaintiff must substantiate allegations with sufficient probative evidence that would permit a

finding in the plaintiff's favor. Frevert v. Ford Motor Co., 614 F.3d 466, 47374 (8th Cir.

2010). But, a court must view the evidence in the light most favorable to the opposing party.

Tolan v. Cotton, U.S. , 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam)

(By weighing the evidence and reaching factual inferences contrary to Tolan's competent

evidence, the court below neglected to adhere to the fundamental principle that at the summary

judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.

(emphasis added)). Chavero-Linares v. Smith, __ F.3d __; No. 13-3532, 2015 WL 1610223, at

*2 (8th Cir. April 13, 2015).

In the Courts March 30, 2015 Order [Document 150] there are certain factual1 errors

contained therein which these movants believe are material to the case and its eventual outcome

as to these movants. Ms. Valenti and Ms. Van Hunnik respectfully submit that material factual

1 In the Courts Order [Document 150] the Court indicated that the facts material to Plaintiffs motions are as follows and then proceeded to recite the material facts prior to engaging in legal analysis. [Document 150, pgs. 10 -22]. As it is apparent that the Courts legal analysis was based upon the material facts cited, it is important to address errors in the material facts as such errors do affect the legal analysis.


4

errors exist and the Court reached factual inferences by weighing the evidence contrary to

competent evidence submitted by the SDDSS Defendants.

1. CPS Employees Do Not Prepare a Petition for Temporary Custody.

In the Order, it is stated CPS employees under policy guidance from and the supervision

of Ms. Valenti and Ms. Van Hunnik prepare a petition2 for temporary custody and sign an

Indian Child Welfare Act affidavit . . . . [Document 150, pg. 3 emphasis supplied]. The

Order also states . . . . CPS employees under their supervision prepared petitions for temporary

custody . . . . [Document 150, pg. 11 emphasis supplied].

CPS employees do not prepare the petitions for temporary custody. The States

Attorneys office prepares a Petition for Temporary Custody and temporary custody paperwork.

[Document 132-1, 79; 132-26, 32]. This material factual conclusion is erroneous and

unsupported by the existing record.

2. The ICWA Affidavit and Hearing Transcript Issues3.

The Court acknowledged that it was DSS practice, prior to June 2012, to provide a copy

of the ICWA Affidavit to parents who attended the 48-hour hearing. The Court also

acknowledged the existence of DSSs written policy, since June 2012, to provide the ICWA

Affidavit to parents attending the hearing. [Document 150, pg. 13].

2 This was an allegation in the Complaint [Document 1, 51] but the materials filed in response to the Plaintiffs motions showed such allegation not to be accurate. 3 Incorporated herein by this reference is also Document 137-1 which the undersigned filed with a Motion to Defer Ruling. [Document 137]. Generally speaking, certain Tribal Orders contained Findings of Fact and Conclusions of Law that children transferred by the Oglala Sioux Tribe were in imminent danger and should not be returned to their parents. The Court determined that the Motion to Defer was moot in light of its March 30, 2015 Order. [Document 150, pg. 45]. Since that date, a Motion to Compel Discovery regarding certain Tribal Court and ONTRAC files has been filed. [Document 156]. In one representative case, the Tribal Order found that the child was in imminent danger and should not be returned to custody of the parent 46 days after the 48-hour hearing. [Document 156, pgs. 4 -6]. This information would have been probative and relevant in deciding the factual and legal issues applicable to the Plaintiffs motions.


5

The Court then cited specifically to hearing transcripts4 in A10-1119; A10-1320; A11-

497; A12-36; A12-571; A13-20; and A13-49. This citation was apparently for two purposes

that the parents did not have notice of why their children were removed from their custody and

that the transcript failed to indicate that the parents were in actual physical receipt of the ICWA

Affidavit.

As to the alleged lack of notice as to why the children were removed from the custody of

the parents, the parents could not claim ignorance of the situation. For instance, in each of the

hearing transcripts specifically cited by the Court, the ICWA Affidavits5 indicate generally6:

A10-1119:

A10-1119; BS# GQ2954 2956: Child has been diagnosed with PKU (phenylketonuria) and will suffer severe brain damage if not cared for properly. Parents have been unwilling or unable to give her the best care to ensure brain damage will not occur. [Document 132-1, pg. 18] A10-1320:

A10-1320; BS# GQ2389 2391: Mother and Father continue to involve Children in domestic abuse situations. Father is an alcoholic and becomes out of control when he is intoxicated. Mother allows Father in the home and around the children when he is intoxicated.

[Document 132-1, pg. 18]

A11-497:

A11-497; BS# GQ3264 3266: Child was brought to the hospital with injuries sustained to his head resulting in a fractured skull and subdural hematoma. Childs injury was the result of being struck in the head by Father, who was intoxicated. Mother stated

4 The Plaintiffs filed 57 transcripts of 48-hour hearings under seal as Exhibit 1. [Document 111, 2]. 5 The Plaintiffs filed 45 ICWA Affidavits under seal as Exhibit 7. [Document 111, 8]. Each of these affidavits has the Court File number on it and bates stamps for discovery identification. 6A general description of the contents of each ICWA Affidavit filed by the Plaintiffs is contained in Document 132-1, pgs. 16 23.


6

to law enforcement she does not want to press charges on Father for causing injury to Child. [Document 132-1, pg. 19] A12-36:

A12-36; BS# GQ2960 2962: Mother was arrested and incarcerated for a warrant for No Drivers License. Mothers arrest rendered her unable to care for Child, and law enforcement felt there were no appropriate caretakers for Child. Father lives in Kyle and has little contact with Child. [Document 132-1, pg. 19] A12-571:

A12-571; BS# GQ2519 2521: Child was present during an assault between Mother and Mothers boyfriend, at which time Mother was arrested for Simple Assault Domestic Violence. There is a history of domestic violence between Mother and Mothers boyfriend and this was the second law enforcement response within five days. [Document 132-1, pg. 20]

A13-20:

A13-20; BS# GQ3380 3382: Father was arrested for DUI, No Drivers License, No Seatbelt, No Child Seatbelt, Ingestion and Possession of Marijuana. Mother was arrested for an outstanding warrant and ingestion. Children were in the vehicle when Father and Mother were arrested. [Document 132-1, pg. 21]

A13-49:

A13-49; BS# GQ3402 3404: Mother and Father were intoxicated and arrested. The whereabouts of Other Father are unknown. [Document 132-1, pg. 22].

As can be seen, the parent or parents from whom the children were removed had actual

knowledge of the reason(s) the children were removed by law enforcement from their custody.


7

It would appear that the Court made a conclusion that parents in the cited transcripts did

not receive the ICWA Affidavit either because the Tribes counsel (who also represents the

Plaintiffs in this action) made comments in the hearing transcript that the parent allegedly did

not receive the document, or that the transcript omits reference to the parent actually receiving

the ICWA Affidavit. No affidavits were provided indicating that ICWA Affidavits were not

provided to the parents by a DSS representative. In sum, there was no competent evidence in the

summary judgment materials reviewed by the Court. See Adickes v. S.H. Kress & Co., 398 U.S.

144, 158 n. 17, 90 S. Ct. 1598, 26 L.Ed.2d 142 (1970) (unsworn statements are not admissible at

summary-judgment stage of proceedings); Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962,

96869 (6th Cir.1991) (court may not consider unsworn statements when ruling on motion for

summary judgment).

Lastly, the Court goes on to conclude that the Deputy States Attorney, DSS or the Judge

failed to contradict the alleged statements of the parents or the Tribes counsel or recess the

proceedings for the purpose of reviewing the ICWA Affidavit or Petition for Temporary

Custody. [Document 150, pg. 15]. Again, respectfully speaking, this is a factual conclusion

reached by the Court after weighing the evidence. The Court weighed the evidence due to the

omission in the transcript and made a conclusion by omission.

3. Valenti and Van Hunnik Understand 48-Hour Hearings are Intended to be Evidentiary Hearings7.

The Court made a material factual conclusion that Defendants Vargo, Valenti and Van

Hunnik understand 48-hour hearings are intended to be evidentiary hearings. [Document 150,

pg. 26]. There was no competent evidence in the record that could lead to such a conclusion.

7 This factual conclusion is not contained in the material facts expressed by the Court but instead contained in the legal analysis portion of Order. [Document 150, pg. 26]. Because there is no competent evidence in the record as to what Valenti or Van Hunnik understands regarding this issue, it will be addressed.


8

The Courts reference to evidentiary hearing would seem to indicate that such a hearing is akin

to an adjudicatory hearing8 under South Dakota law. Such is not the case.

In Cheyenne River Sioux Tribe v. Davis, 2012 S. D. 69, 822 N.W.2d 62, one of the issues

addressed was the Tribes assertion that there was a violation of state law in the [48-hour

hearing] based upon an alleged lack of evidence of a need for temporary custody as required by

SDCL 26-7A-18. Cheyenne River Sioux Tribe, 2012 S.D. 69, 12. Essentially the Tribe was

claiming there was no evidentiary hearing in the sense that there was no evidence presented to

the Court for purposes of continued temporary custody. In rejecting the Tribes assertion, the

South Dakota Supreme Court stated:

. . . . Tribe ignores, however, that the temporary custody hearing proceeded on State's petition for temporary custody and the accompanying police report and ICWA affidavit from a DSS specialist. The report and affidavit set forth facts concerning the need for temporary custody. While these documents might not constitute evidence within the normal bounds of the Rules of Evidence, those rules are not applicable at a temporary custody hearing. See SDCL 267A34 (stating that the Rules of Civil Procedure apply to adjudicatory hearings, but that all other juvenile hearings are to be conducted to inform the court of the status of the child and to ascertain the child's history, environment, and condition); SDCL 267A56 (stating that the Rules of Evidence apply to adjudicatory hearings, but that all other juvenile hearings are to be conducted under rules prescribed by the court to inform it of the status of the child and to ascertain the child's history, environment and condition). Therefore, the police report and affidavit provided sufficient evidence of a need for temporary custody to permit the trial courts to proceed here. [Emphasis added].

Cheyenne River Sioux Tribe v. Davis, 2012 S. D. 69, 12 822 N.W.2d 62. Such material factual conclusion led the Court to find that Judge Davis does not permit

Indian parents to present evidence opposing the States petition for temporary custody; that

Judge Davis prevents Indian parents from cross examining witnesses who support the petition;

8 "Adjudicatory hearing" a hearing to determine whether the allegations of a petition alleging that a child is abused or neglected are supported by clear and convincing evidence or whether the allegations of a petition alleging a child to be in need of supervision or a delinquent are supported by evidence beyond a reasonable doubt. SDCL 26-7A-1(2). The Rules of Civil Procedure apply to adjudicatory hearings. SDCL 26-7A-34(1).


9

and that Judge Davis does not require the States Attorney or DSS to call witnesses to support

removal of the children or permit testimony on immediate risk of harm if the children are

returned to the parents. [Document 150, pg. 26].

The importance of pointing out this material factual error cannot be understated. Such

error led to this Court to conclude that Judge Daviss authority in conducting 48-hour hearings

was as a policy maker. Which in turn led this Court to conclude that when Vargo, Valenti, and

Van Hunnik did not challenge Judge Daviss alleged policies his policies became the

official policy governing the Pennington County States Attorney and the South Dakota

Department of Social Services. But there was no policy of Judge Davis for Vargo, Valenti,

and Van Hunnik to challenge, so it could not become the official policy of the Pennington

County States Attorney and the South Dakota Department of Social Services.

The procedure regarding evidence at a 48-hour hearing has been expressed by the

South Dakota Supreme Court in Cheyenne River Sioux Tribe v. Davis, 2012 S. D. 69, 822

N.W.2d 62. Cheyenne River Sioux Tribe9 and the applicable statutory law expressed the rule of

law which was to be followed at the 48-hour hearing.

D. Legal Errors

1. The Order

The Courts Order [Document 150] determined the liability of Valenti and Van Hunnik

for two reasons. One, the Court concluded Valenti and Van Hunnik were final policy makers.

Second, the Court concluded that because Valenti and Van Hunnik did not challenge Judge

9 Request is made to the Court to take judicial notice that the Tribe did not appeal the South Dakota Supreme Courts decision to the U.S. Supreme Court. Thus, this Courts decision effectively overrules Cheyenne River Sioux Tribe v. Davis, 2012 S. D. 69, 822 N.W.2d 62 and violates the Rooker-Feldman doctrine. The RookerFeldman doctrine prohibits lower federal courts from exercising appellate review of state court judgments. Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).


10

Daviss alleged policies, the alleged policies became the official policy governing the State of

South Dakota and the Department of Social Services (State/DSS). In essence, Valenti and Van

Hunnik in their official capacities acquiesced and ratified Judge Daviss alleged policies.

Omitted from the Court Order is any material fact determination or legal conclusion (1)

that the State/DSS had an official policy or custom that caused a constitutional violation; and (2)

that the State/DSS official policy or custom that caused a constitutional violation was the moving

force behind the violation. In addition, the Court adopted the Plaintiffs assertion that Valenti

and Van Hunnik were final policy makers, without any factual or legal analysis asserted by the

Plaintiffs as required by applicable law.

2. The Summary Judgment Motions Should Have Been Denied as to Ms. Valenti and Ms. Van Hunnik.

a. There is no Evidence or Claim in the Motions for Summary Judgment That the State/DSS had an Official Policy or Custom Which Violated the Plaintiffs Rights.

In the Plaintiffs summary judgment submissions, they submitted no evidence of, nor did

Plaintiffs identify, an official policy of the State/DSS involving a deliberate choice to follow a

course of action made among various alternatives by an official who has the final authority to

establish governmental policy. See, Jane Doe A by and through Jane Doe B v. Special School

Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th Cir. 1990). Also, the Courts Order [Document

150] does not address or identity any such official policy.

Plaintiffs summary judgment submissions fail to proffer or identify the existence of any

governmental custom by the State/DSS. There was no evidence or proffer of: the existence of

a continuing, widespread, persistent pattern of constitutional misconduct by the governmental

entitys employees and deliberate indifference to or tacit authorization of such conduct by the

governmental entities policy-making officials after notice to the officials of that misconduct.


11

Most importantly, there was no evidence or proffer that the Plaintiffs were injured by any

governmental custom that was the moving force behind any alleged constitutional violation.

See Jane Doe A by and through Jane Doe B v. Special School Dist. of St. Louis Cnty., 901 F.2d

642, 645 (8th Cir. 1990). Also, the Courts Order [Document 150] does not address or identity

any such official policy, or address and identity any such governmental custom or a

determination that the governmental custom was the moving force behind any alleged

violation of law.

Therefore, any grant of summary judgment to the Plaintiffs as against Ms. Valenti or Ms.

Van Hunnik, is in error based upon the lack of evidence, proof, or identification of an official

policy or governmental custom of the State/DSS.

b. The Plaintiffs Asserted a Legal Conclusion that Ms. Valenti and Ms. Van Hunnik Were Policy Makers Which Led This Court to Adopt the Plaintiffs Legal Conclusion Without Any Legal Analysis or Authority.

The policy maker term arose from Monell due to the use of the term official policy

and was addressed more definitively in Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). The

U.S. Supreme Court noted that The official policy requirement was intended to distinguish

acts of the municipality from acts of employees of the municipality, and thereby make clear that

municipal liability is limited to action for which the municipality is actually responsible. Monell

reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts of

the municipality that is acts which the municipality has officially sanctioned or ordered.

Pembaur, 475 U.S. at 480 481. [emphasis in original].

The Pembaur Court went on to discuss that municipal liability may be imposed for a

single decision by municipal policymakers under appropriate circumstances, when action is

taken once or repeatedly. Pembaur, 475 U.S. at 480 481. The Court then went on to


12

emphasize that not every decision by municipal officers automatically subjects the municipality

to liability. Of import was the holding that:

. . . . Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official even a policymaking official has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. [citation omitted]. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable . . . .

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 482 (1986). Final policy making authority is determined by whether an official has the authority to

make official policy or custom regarding the action alleged to have caused the particular

constitutional violation at issue. Schlimgen v. City of Rapid City, 83 F.Supp.2d 1061, 1067 (D.

S.D. 2000). Whether an individual is a final policy maker is a question of law to be resolved by

the trial judge. Id.(citing, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)). Relevant legal

materials, including state and local law, as well as custom and usage having the force of law,

must be considered by the trial judge while identifying those officials or governmental bodies

who speak with final policymaking authority for the local governmental actor concerning the

action alleged to have caused the particular constitutional or statutory violation at issue.

Schlimgen, at 1067.

In this case, the Plaintiffs asserted no evidence or legal argument with relevant

materials to address whether Ms. Valenti or Ms. Van Hunnik were final policy makers.

Plaintiffs merely offered a legal conclusion that they were final policymakers and

unfortunately created the situation where the Court accepted that conclusion without addressing

any relevant legal materials or identifying those officials or governmental bodies who speak

with final policy making authority.


13

Therefore, any conclusion that Ms. Valenti and/or Ms. Van Hunnik are final

policymakers is in error and the summary judgment motions should have been denied.

c. Even if Ms. Valenti and/or Ms. Van Hunnik are Policymakers, They Could Not Acquiesce or Ratify Judge Daviss Alleged Policies as He is Not a Subordinate to Ms. Valenti and/or Ms. Van Hunnik.

The Courts Order [Document 150] contains no liability determination as against

Ms. Valenti and Ms. Van Hunnik except as follows:

. . . . There is no evidence any one of these three defendants [Vargo, Valenti, and Van Hunnik] or their courtroom representatives, Deputy States Attorneys or case workers sought to change the practices established by Judge Davis. When these defendants did not challenge Judge Davis policies for conducting 48-hour hearings, his policies became the official policy governing their own agencies. Coleman v. Watt, 40 F.3d 255, 261 (8th Cir. 1994). [B]y acquiescence in a long standing practice of Judge Davis which constitutes the standard operating procedure of the Seventh Circuit Court, these defendants [Vargo, Valenti, and Van Hunnik] exposed themselves to liability. Jett, 491 U.S. at 37.

Order [Document 150, pgs. 26 27.]

Coleman v. Watt, 40 F.3d 255 (8th Cir. 1994), was an appeal to the Eighth Circuit from a

motion to dismiss by the District Court for failure to state a claim. The Eighth Circuit reversed

and remanded. Coleman, 40 F.3d at 257. Part of Colemans claim surrounded his allegation that

Municipal Judge Watt, Municipal Court, Traffic Division, issued an Order directing the

officers of the Little Rock Police Department to impound vehicles for certain state statute

violations. Id. Due to the Order Colemans car was impounded and he ultimately sued

Municipal Judge Watt and the City of Little Rock. Coleman, 40 F.3d at 258.

Relevant to this matter, the Eighth Circuit, in Coleman at pg. 262, stated:

We need not decide whether a municipal court judge acts as an official policymaker for the City of Little Rock because Coleman has alleged that both the City and its chief of police adopted Judge Watt's general order as an official


14

policy governing the conduct of the Little Rock Police Department. The police chief is alleged to be an official policymaker for the City of Little Rock.

********* . . . . To recover on his claimed due process violation, Coleman must meet his burden of proof on each of these assumptions: He must prove that the chief of police or some other official policymaker adopted Judge Watt's order as an official policy, and that the execution of that policy in fact caused his asserted injury. . . . .

Coleman v. Watt, 40 F.3d 255, 262 (8th Cir. 1994). With due respect to the Court, nothing in the cited case stands for the proposition of law

that liability flows to Ms. Valenti and/or Ms. Van Hunnik for not challenging Judge Daviss

alleged policies, or that by not challenging his alleged policies, the alleged policies became the

official policy governing the State/DSS.

The Court goes on to find that Ms. Valenti and Ms. Van Hunnik exposed themselves to

liability by acquiescence, citing Jett v. Dallas Independent School District, 491 U.S. 701, 737

(1989). The context of Jett is discovered by reviewing City of St. Louis v. Praprotnik, 485 U.S.

112 (1988).

It is clear that liability for acquiescence or ratification, can only be done by a policymaker

regarding a subordinate within that policymakers entity. This conclusion is buttressed by the

Praprotnik Court recognizing that the Pembaur Court recognized that the authority to make

policy is necessary to the authority to make final policy. City of St. Louis v. Praprotnik, 485

U.S. 112 (1988). [emphasis in original]. Praprotnik further holds that a municipality can be

liable for an isolated constitutional violation if the final policy maker ratified a subordinates

action. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).

It should be obvious and go without saying - even assuming that Ms. Valenti and/or Ms.

Van Hunnik are final policy makers - Judge Davis is not a subordinate of Ms. Valenti and/or Ms.


15

Van Hunnik. If he is not a subordinate, Ms. Valenti and/or Ms. Van Hunnik cannot ratify his

actions.

Therefore, the Court committed legal error in determining that Ms. Valenti and Ms. Van

Hunnik exposed themselves to liability for acquiescing or ratifying Judge Daviss alleged

policies.

d. The Courts Conclusion That Defendants Violated Plaintiffs Due Process Rights Does Not Describe What Conduct of Ms. Valenti and Ms. Van Hunnik Caused the Alleged Violation of Due Process and There is no Continuing Violation of Federal Law

The Due Process allegations were lumped against the Defendants by the Plaintiffs and

the Court addressed the Due Process issue also by collectively referring to the Defendants and

concluding the Defendants violated the Plaintiffs due process rights. The Court also did not

specifically address what alleged policies, alleged customs, or alleged conduct of Ms. Valenti

and Ms. Van Hunnik caused them to be liable for the alleged due process violations.

This is important as the Court apparently intends to issue an injunction against Ms.

Valenti and Ms. Van Hunnik, in their official capacities, for prospective injunctive relief to

prevent future violations of federal law. See, Ex Parte Young, 209 U.S. 123. The Court points

to no policies or customs of DSS that lead to liability of Ms. Valenti and/or Ms. Van Hunnik. If

the conduct is that those under Ms. Valentis and Ms. Van Hunniks supervision prepare the

Petition for Temporary Custody and fail to provide it to the parents, that conduct has been shown

to be incorrect. DSS case workers do not prepare the Petition for Temporary Custody. If the

conduct is that DSS case workers do not provide a copy of the ICWA Affidavit to parents, there

is no competent evidence or proof of any such conclusion. The DSS written policy indicates

otherwise.


16

All that would remain is that Ms. Valenti and Ms. Van Hunnik are vicariously liable for

Judge Daviss alleged conduct. Yet, such conclusion would be in error as the Eighth Circuit in

Parrish v. Ball, 594 F.3d 993, (8th Cir. 2010) stated:

Because vicarious liability is inapplicable to ... 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009). Thus, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. Id. at 1949. As we have held, a supervising officer can be liable for an inferior officer's constitutional violation only if he directly participated in the constitutional violation, or if his failure to train or supervise the offending actor caused the deprivation. Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir.1997) (quoting Tilson v. Forrest City Police Dep't, 28 F.3d 802, 806 (8th Cir.1994)); see also Wever v. Lincoln County, 388 F.3d 601, 60607 (8th Cir.2004).(footnote omitted). [emphasis supplied].

Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010). Lastly, none of the factual or legal justification for the Courts decision indicates that Ms.

Valenti and/or Ms. Van Hunnik, or individuals under their supervision, are engaging in ongoing

or continuing violations of federal law. Injunctive relief is unavailable when there is no

continuing violation of federal law. Green v. Masour, 474 U.S. 64, 70 (1985). In addition, since

there is no ongoing or continuing violation of federal law that can be attributed to Ms. Valenti

and/or Ms. Van Hunnik, a declaratory judgment as to them would also be improper. Green, 474

U.S. at 72 73.

Therefore, as there is no appropriate factual or legal finding of conduct on the part of Ms.

Valenti and/or Ms. Van Hunnik which allegedly violated the Plaintiffs due process rights, the

Plaintiffs motions should have been denied.


17

E. Conclusion

Ms. Valenti and Ms. Van Hunnik would respectfully request the factual errors addressed

above be remedied by the Court. Once those factual errors are remedied, it is respectfully

requested that the errors of law addressed above be also remedied and that the Court issue an

Order denying the Plaintiffs motions as to Ms. Valenti and Ms. Van Hunnik.

Dated: April 27, 2015

MORRIS LAW FIRM, Prof. LLC Attorneys for LuAnn Van Hunnik and Lynne A. Valenti

By : /s/ Robert L. Morris Robert L. Morris 117 5th Avenue, PO Box 370 Belle Fourche, SD 57717-0370 (605) 723-7777 [email protected]



18


I hereby certify that on the 27th day of April, 2015, I electronically filed

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO RECONSIDER with the

Clerk of the Court for the United States District Court for the Western Division by using the

CM/ECF system. Participants in the case who are registered CM/ECF users will be served by

the CM/ECF system.

By: /s/ Robert L. Morris


UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patrie, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated, Plaintiffs, v. LUANN VAN HUNNIK; MARK VARGO; HON. JEFF DAVIS; and LYNNE A. VALENTI in their official capacities. Defendants.

) ) ) ) )))) ) ) )))))))

Case No.: 13-5020

________________________________________________________________________________________________________

FRCP RULE 59 and/or FRCP RULE 60 MOTION TO RECONSIDER ________________________________________________________________________________________________________

Robert L. Morris, attorney for LuAnn Van Hunnik, Regional Manager for the South

Dakota Department of Social Services Division of Child Protection Services offices in Region 1,

Pennington County, Rapid City, South Dakota, and Lynne A. Valenti, Secretary of the South

Dakota Department of Social Services, submits this Motion to Reconsider as follows:

1. Ms. Valenti and Ms. Van Hunnik move the Court pursuant to Rule 59(a)(2) to amend the

findings of fact and conclusions of law in its March 30, 2015, Order [Document 150] and

enter a new Order or to alter or amend the Order for the reasons as stated in

Memorandum of Law in Support of Motion filed contemporaneous with this Motion. In

addition, or in the alternative;


2

2. Ms. Valenti and Ms. Van Hunnik move the Court pursuant to Rule 60 for relief from the

Order for the reasons as stated in Memorandum of Law in Support of Motion filed

contemporaneous with this Motion.

Dated: April 27, 2015

MORRIS LAW FIRM, Prof. LLC Attorneys for LuAnn Van Hunnik and Lynne A. Valenti

By : /s/ Robert L. Morris Robert L. Morris 117 5th Avenue, PO Box 370 Belle Fourche, SD 57717-0370 (605) 723-7777 [email protected]



I hereby certify that on the 27th day of April, 2015, I electronically filed FRCP RULE 59

and/or FRCP RULE 60 MOTION TO RECONSIDER with the Clerk of the Court for the

United States District Court for the Western Division by using the CM/ECF system. Participants

in the case who are registered CM/ECF users will be served by the CM/ECF system.

By: /s/ Robert L. Morris


1UNITED STATES DISTRICT COURTDISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

OGLALA SIOUX TRIBE andROSEBUD SIOUX TRIBE, as parenspatriae, to protect the rights of theirtribal members; and MADONNAPAPPAN, and LISA YOUNG,individually and on behalf of allother persons similarly situated,

Plaintiffs,

v.

LUANN VAN HUNNIK; MARKVARGO; HONORABLE JEFF DAVIS;and LYNNE A. VALENTI, intheir official capacities,

Defendants.

))))))))))))))))))

Case No.: 13-5020

Mark Vargos Memorandum inSupport of his Motion to Alter,

Amend or Reconsider Pursuant toRule 59 or Rule 60

INTRODUCTION.

In a three-claim complaint, plaintiffs sued Pennington County States

Attorney Mark Vargo. Plaintiffs asserted that Vargos policies, practices and

procedures relating to the removal of Native American children from their

homes during state court 48-hour hearings violate the Indian Child Welfare

Act (ICWA) and the Due Process Clause of the Fourteenth Amendment.

Plaintiffs complaint demands relief based only upon 42 U.S.C. 1983. To

state a claim under 1983, a plaintiff must allege the violation of a right

secured by the constitution and the laws of the United States, and must show

that the alleged deprivation was committed by a person acting under color of

state law. West v. Atkins, 487 U.S. 42, 48 (1988).


2Vargo was only sued in his official capacity. A suit against a public

official in his official capacity is actually a suit against the entity for which

the official is an agent. Parish v. Bell, 594 F.3d 993, 997 (8th Cir. 2010).

But, the complaint does not allege that Vargo is an agent of a particular

entity. Plaintiffs first motion for partial summary judgment, though, states

that Vargo is the States Attorney for Pennington County. Document 110, p.

12. Accordingly, for purposes of this motion, Vargo assumes the claims

against him in his official capacity, as stated in the complaint, are suits

against Pennington County.1

Monell v. Department of Social Services, 436 U.S. 658, 694, (1978),

holds that the doctrine of respondeat superior may not be used to fasten

liability on a local government in a suit under section 1983. Gernetzke v.

Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir. 2001)(Judge

Posner analyzing municipal liability)(internal citations omitted). In order to

prevail on a Monell claim, plaintiffs must show that an injury [was] inflicted

because of execution of a governmental policy or custom, ether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent

the official policy. Monell, 436 U.S. at 694. [M]unicipalities may be held

liable under 1983 only for acts for which the municipality itself is actually

responsible . . . . Eggar v. City of Livingston, 40 F.3d 312, 314 (9th Cir.

1994)(Donald P. Lay, Senior Judge of the Eighth Circuit Court of Appeals,

1 The undersigned will endeavor to refer to the defendant as Pennington County, not MarkVargo, unless specifically referencing Mr. Vargo as an individual.


3sitting by designation in the Ninth Circuit). Put simply, municipalities are

liable as persons under section 1983, but only for their own unconstitutional

or illegal policies. Coleman v. Watt, 40 F.3d 255, 261 (8th Cir. 1994). But

also, Congress did not intend for a municipality to be liable under 1983

where causation is absent. Monell, 436 U.S. at 692.

RELIEF REQUESTED.

On March 30, 2015, the Court entered an order granting plaintiffs

motions (Docket 108 and 110) for partial summary judgment, concluding that

plaintiffs are entitle to injunctive and declaratory relief. Neither an

injunction, nor a declaratory judgment has yet issued. Pennington County

respectfully contends that the Courts order represents a manifest error of

law, requiring reconsideration or other relief under either Federal Rule of

Civil Procedure 59 or 60.

LEGAL STANDARD.

Rule 59(e) allows a party to move a court to alter or amend a judgment.

Rule 60 allows a court to correct a clerical mistake or a mistake arising from

an oversight or omission whenever one is found in a judgment, order, or other

part of the record. Rule 60(b)(1) allows for relief for mistake. Rule 60(b)(6)

allows for relief for any other reason that justifies relief.

The Federal Rules of Civil Procedure do not mention motions to

reconsider. The Eighth Circuit has instructed courts to consider such motions

either under Rule 59(e) or Rule 60(b). Alliance Communs. Coop., Inc. v. Global


4crossing Telecomms., Inc., 690 F.Supp.2d 889, 893 (D. S.D. 2010)(citing

Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir. 1988); and Hagerman v. Yukon

Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)(other citations omitted). Rule

59(e) refers to entry of judgment, but some authority indicates that a district

court may entertain a Rule 59(e) motion before the entry of final judgment on a

separate document. Id. "Motions for reconsideration serve a limited function: to

correct manifest errors of law or fact or to present newly discovered evidence."

Id.

THE ORDER.

Pennington County seeks relief from the Courts Order dated March

30, 2015. In the order, the Court acknowledged plaintiffs allegation that

Davis initiated six policies which deprived plaintiffs of their constitutional

rights. The Court also acknowledged that plaintiffs only alleged that they

could maintain an action against Pennington County through Mark Vargos

acquiescence to Daviss policies. In accepting the plaintiffs argument, the

Court identified three reasons why Pennington County was liable:

1. Pennington County did not offer evidence that any Deputy StatesAttorney sought to change any of the Daviss policies.

2. Pursuant to Coleman v. Watt, Pennington County failed tochallenge Judge Daviss policies, adopting Daviss policies as theirown.

3. Pursuant to Jett v. Dallas Indep. Sch. Dist., Pennington Countyacquiesced to the policies of whatever entity Judge Davis was anagent of, making those policies the standard operating procedureof the Seventh Circuit Court.


5Document 150, pp. 26-27.

DISCUSSION.

A. Defendants are not Final Policy Makers.

Here, the Court concluded that defendants are all final policy makers.

But the Court did not identify what municipality each defendant was a policy

maker for. Also, it is important to note that an individual might be a final

policy maker in respect to one function, but not another. See Pembaur v. City

of Cincinnati, 475 U.S. 469, 483, n. 12 (1986). Municipalities, spread

policymaking authority among various officers. Id. So, the fact that any of

the named-defendants is a policy maker isnt necessarily relevant to an

inquiry of liability under Monell.

The mere fact that a municipality enforces state law does not justify

imposition of 1983 municipal liability. Martin A. Schwartz, Section 1983

Litigation Claims and Defenses Volume 1B 7.9 (3d ed. 1997). Here, any

policy of Pennington County was nothing more than application of state law

as blessed by the South Dakota Supreme Court. See generally Cheyenne

River Sioux Tribe v. Davis, 2012 S.D. 69, 822 N.W.2d 62. Moreover, to the

extent that Vargo is an agent of the State of South Dakota, liability might be

rejected based on Will v. Mich. Dept. of State Police, 491 U.S. 58, 71

(1989)(holding that States are not proper parties under 1983). Thus,

Pennington County joins in the arguments of co-defendants as to analysis of

this issue. Since Judge Davis is not liable for purposes of 1983, then


6Pennington County can not be liable under the Courts analysis. Thus,

Pennington County joins in Daviss arguments as to why he is not liable and

why certification to the South Dakota Supreme Court might be proper.

Pennington County argues that these issues represent manifest errors of law.

B. One Municipality cannot Acquiesce to the Policy of Another.

1. Pennington County has no Duty to Change orChallenge Daviss Practices.

The Court first reasoned that Pennington County was responsible for

the plaintiffs alleged constitutional deprivations because [t]here was no

evidence any one of these defendants [Vargo, Valenti, and Van Hunnik] or

their courtroom representatives, Deputy States Attorneys or case workers

sought to change the practices established by Judge Davis. Document 150, p.

26. This represents a manifest error of law for two reasons.

First, the court improperly shifted the burden at summary judgment.

Pennington County was the non-moving party at this stage of litigation. The

Court must view the evidence in the light most favorable to the opposing

party. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)(per curiam). At this

stage of litigation, it is plaintiffs burden to establish the lack of a question of

a material fact, not the defendants burden to show that there is a question of

material fact.

Second, Pennington County is unaware of any legal authority holding

that municipal liability pursuant to 1983 attaches when a municipality,

through one of its agents, fails to change the practices established by a


7judge in a courtroom. Indeed, other courts have held that municipalities

cannot be held liable under Monell for a section 1983 claim based solely on

the actions of its judges. Rodriguez v. City of New York, 2004 U.S. Dist.

LEXIS 3765; WL 444089 (S.D. N.Y. 2004)(citing Ledbetter v. City of Topeka

Kansas 318 F.3d 1183, 1190 (10th Cir. 2003); Eggar v. City of Livingston, 40

F.3d 312, 316 (9th Cir. 1994)(Judge Lay holding that judges failure to inform

indigent defendants of their right to counsel did not amount to municipal

policymaking); Woods v. City of Michigan City, 940 F.2d 275, 279 (7th Cir.

1991)(holding that judge was acting as part of state judicial system but not as

an official policymaker); and Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.

1985)(finding that city not liable for judges error merely because he is a

judge)).

Here though, there is no allegation that Davis is even an agent of

Pennington County. Indeed, the fact that he is separately named in his

official capacity seems to suggest that he is the agent of another entity, which

makes him less connected to Pennington County than a municipal judge

would be connected to a city. If a municipal judges actions does not give rise

to municipal liability, how can the actions of a non-municipal judge?

In Rodriguez, District Judge Shira Scheindlin concluded, Thus, even if

the judges actions amounted to that of a policymaker, the City would not be

liable under Monell. Rodriguez, 2004 U.S. Dist. LEXIS 3765 at *14. And

courts in this Circuit have held similarly. See Granda v, City of St. Louis,


82006 U.S. Dist. LEXIS 23037; 2006 WL 1026978 (E.D. Mo. 2006). In Granda,

a plaintiff sued a municipality and its municipal judge for violations of her

constitutional rights when the judge incarcerated her due to her daughters

truancy. The court determined that it was the judges

independent decision to incarcerate violators of the TruancyOrdinance. Other judges who knew of [judges] conduct were nomore policy makers than the [judge]. Although the Mayor andother judges allegedly knew of [judges] conduct, mereawareness does not create a custom or policy on the part of the[municipality]. Indeed, no city official including the Mayor orother judges had control over [judges] judicial acts; they did nothave authority to stop [judge] from incarcerating persons whoviolated the Truancy Ordinance. Under such circumstances, itcannot be said that the Mayor and other judges weredeliberately indifferent to or tacitly authorized [judges] conductin such a manner as to create a custom or policy.

Id.(citing Russell v. Hennepin County, 420 F.3d 841,849 (8th Cir. 2005).

Here, like in Granda, Vargo and his courtroom deputies did not have

the authority to stop Judge Daviss conduct, regardless of whether or not it

was in violation of plaintiffs constitutional rights. And it is unclear why

Vargo or his deputies should have sought to change Judge Daviss practices,

when the South Dakota Supreme Court declined to reject Daviss practices in

Cheyenne River Sioux Tribe v. Davis. There is no authority to suggest that

Monell liability attaches to a county when its prosecutor fails to predict that

a federal court might interpret the practices of the judges they appear in

front of as violative of 1983. This is especi

Documents

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