Case 3:23-cv-03002-RAL Document 1 Filed 01/30/23 Page 1 of 6 PageID #: 1

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

JULIE FRYE-MUELLER, Case No. 23- cv-3002

South Dakota Senator, District 30,

Plaintiffs,

V. COMPLAINT

LEE SCHOENBECK,in his official capacity as

President Pro Tern ofthe South Dakota Senate,

Defendant.

NATURE OF THE CASE

1. This action is initiated by Julie Frye-Mueller, South Dakota Senator, in order to ,

secure her First Amendment right to free speech and engage in the political process.

2. This action is brought by the Plaintiff pursuant to 42 U.S.C. § 1983.

JURISDICTION AND VENUE

3. This^Court has original jurisdiction over this matter pursuant to 28 U.S.C. §

1331 and28 U.S.C. § 1343(a)(3).

4. Venue is proper in the District of South Dakota, Central Division, pursuant to 28

U.S.C. §1391(b)(2).

PARTIES AND FACTS

5. Plaintiff Julie Frye-Mueller("Frye-Mueller") is the South Dakota Senator

representing District 30. She is a resident ofPeimington County, South Dakota, and she
serves in her official capacity at the State Capitol in Hughes County, South Dakota.

6. The Plaintiff represents the over 25,000 people of District 30 in South Dakota
and is their only voice in the South Dakota Senate.

7. Defendant Lee Schoenbeck("Sehoenbeck")is sued in his official

capacity as President Pro Tempore of the South Dakota Senate.

8. Upon information and belief, Sehoenbeek is a resident of Codington County,

and primarily performs his duties as President Pro Tempore ofthe Senate at the state

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capital in Pierre, Hughes County, South Dakota.

9. Frye-Mueller is a duly elected state Senator and has served several terms in the
South Dakota Legislature.
10. The South Dakota Senate eonduets the business ofthe Senate in the State Capitol
and conducts Committee hearings eonceming proposed Bills, debates and votes on Bills on the
floor ofthe South Dakota Senate, and is available to the publie while the Legislature is in
session and at other times via her state email aeeount.

11. Upon information and belief, no member of the South Dakota Legislature has
been suspended from their duties and partieipation in the Legislature without due proeess.
There has been no due proeess availed to the Plaintiff prior to the action of suspension on
January 26, 2023. In faet, the approved Rules ofthe Senate were suspended to accomplish
this act outside ofthe seope ofthose Rules. The Defendant has singled out the Plaintiffto
take these actions and no other member ofthe Senate or any other el'ass ofindividuals are
being freated in this manner.
12. The Senate meets for a specific number of days eaeh year to conduct its
official business. Preventing Senator Frye-Mueller from serving in her official capacity
deprives the citizens of South Dakota Distriet 30 from their representation in the South
Dakota Senate.

13. Among other things. Plaintiff eommimieates with constituents, prepares

possible legislation, sponsors Bills^ participates in and votes in Cohimittee hearings, and
participates in and votes on Bills on the Senate floor.

14. Plaintiff has received no speeific written information as to the basis for the
Defendant's aetion toward her but understands from informal eomments and news articles
that the suspension of her Senate duties and access stem from a eonversation she had with
a member ofthe Legislative Researeh Couneil staff on or about January 24,2023.
15. On Wednesday, January 25, 2023, on the Senate.floor with members ofthe
public present, it was announced that Frye-Mueller's duties and authority,to serve in the
Senate were being suspended.
16. Schoenheck told Frye-Mueller that the alleged eonduct took plaee at the State
Capitol whieh is in Hughes County, South Dakota.
17. On January 26, 2023, during the floor session ofthe South Dakota Senate, a
Motion was made to suspend the Rules and take aetion against Frye-Mueller. The
President ofthe Senate ruled the Motion 'Out of Order,' but Defendant appealed the
ruling, and a vote ofthe Senate overruled the President. Said vote was taken without
Plaintiff having an opportunity to hear the speeific issues involved or prepare any defense.
18. On January 27 and 28, 2023, Frye-Mueller requested a eopy of whatever
complaint existed against her, but she has not received any written information, nor has
she received any response from Schoenheck or any other Senate Leaders following her
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emails to them as well as a text message to one of them requesting said information.
19. Defendant asserted authority to take the action to suspend Plaintiff but cited
no specific authority or basis for his actions.
20. Frye-Mueller is unable to adequately represent the people of South Dakota
Legislative District 30 without being able to carry out her previously assigned
Committee duties or speak about or vote on Bills presented on the floor ofthe Senate.
21. Frye-Mueller is also unable to even participate in preparation of Bills or
make use of the Legislative Research Council staff and resources due to the suspension.
22. Frye-Mueller has been stripped of her access to the Legislative email. A
critical component of serving her constituents and participating in the South Dakota Senate is
having access to the Legislative email and Legislative resources.
23. Frye-Mueller has no ability to carry out her duties due to this suspension.
24. One important aspect of serving as a Senator is presenting Bills via the
Legislative Research Council website and engaging in communication with staff and other
legislators through this website. This activity occurs in combination with personal interaction
as well as via the website, but Plaintiff has now been denied aecess to that source of
electronic / remote communication and has no access to her state legislative email account.
25. There are many deadlines approaching in regard to introduction of Bills and
Resolutions which will potentially pass without access to the resources and information
described herein. If deadlines are missed the Plaintiff as well as her constituents forever lose
the opportunity to submit Bills.

26. By being barred from the Senate Committees, Senate Floor, Legislative
Research Council, and Legislative email, Frye-Mueller and the citizens of District 30
permanently lose any opportunity to draft and propose legislation, obtain sponsors ofBills,
and communicate with constituents, legislators, and interested parties about the Bills and
related issues. As a result. Plaintiffs opinions and advoeacy efforts are significantly
limited and permanently lost.
27. South Dakota's 2023 legislative session will conclude in a matter of weeks,
making access to the resources as well as engaging in voting and advocacy all the more critical.
28. The President Pro Tempore's action stripping Frye-Mueller of her Senate
participation permanently and adversely impacts Frye-Mueller and the citizens of South
Dakota Legislative District 30 at a critical time in the legislative process.

CLAIM ONE
FIRST AMENDMENT/FIRST AMENDMENT
RETALIATION

29. Plaintiff herein incorporates all allegations contained in the paragraphs above.

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30. Defendant acted under the eolor of state law in prohibiting Plaintiff Fiye-
Mueller from carrying out her duties as a duly elected State Senator.

31. Defendant deprived Plaintiff ofrights or privileges secured by the

Constitution, namely, Plaintiffs' First Amendment right to free speech.

32. Defendant's actions restricted Plaintiffs expression because of its message,

ideas, subject matter, or its content.

33. Defendant's conduct was not the least restrictive means to achieve a
compelling governmental interest, and there is no compelling governmental interest at issue
here.

34. In engaging in conversation with a Legislative Research Council staff

member about both Legislative activity and personal conversation. Plaintiff was engaged
in activity protected by the First Amendment, namely political speech and free speech.

35. Defendant took adverse action against Plaintiffthat would chill a person
of ordinary firmness from continuing the activity.

36. The adverse action was motivated at least in part by Plaintiffs protected activity.

37. Defendant's conduct otherwise violates the First Amendment as Plaintiff has
been singled out and treated differently than other Senators or members ofthe public based
upon their advocacy and have been prevented from exercising their free speech rights in
the political process as well as personally.

RELIEF

WHEREFORE,Plaintiff prays that the Court enter judgment in her favor as follows:

1. That this Court assume jurisdiction;

2. That this Court declare that banning Frye-Mueller from her Senate duties
violates Plaintiffs First Amendment right to free speech;

3. Grant preliminary and permanent injunctive relief by ordering the Defendant

to reinstate Frye-Mueller's Legislative duties and privileges consistent with those of other
Senators;

4. Grant Plaintiffs' reasonable attorney's fees, litigation expenses and costs

pursuant to 42 U.S.C. § 1988;

5. Grant the Plaintiff any further relief which may in the discretion ofthe Court
be necessary and proper to ensure Plaintiffs First Amendment rights.

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Dated: January 30, 2023.

HAUGAARD LAW OFFICE,P.C.

Steven G. Haugaard
1601 East 69"^ Street, Suite 302
Sioux Falls, South Dakota 57108
(605)334-1121
[email protected]
 IS 44 (Rev 04 21) Case 3:23-cv-03002-RALCIVIL COVER
Document SHEET
1 Filed 01/30/23 Page 6 of 6 PageID #: 6
The .IS 44 civil cover sheet and the information contained herein neither replace nor supplement the tiling and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXTPMHi OF THIS FOKMj
I. (a) PLAINTIFF DEFENDANTS
JULIE FRYE-MUELLER, a South Dakota Senator, District 30 LEE SCHOENBECK, President Pro Tern ofthe South Dakota
Senate
(b) County of Residence of First Listed Plaintiff Penninston
(liXCFI'TIN U.S. PLAINTIFF CASES) County of Residence of First Listed Defendant Codington
(IN U.S. PIAINTIFF CASES ONLY)
(C) Attorneys (I-'im Name. Address, and Telephone Number) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Haugaard Law Office, P.C.
Attomeys (IjKnown)
1601 E. 69"^ Street, Suite 302
Sioux Falls, South Dakota 57108
II. BASIS OF JURISDICTION (Phc.an "X",« One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Boxfor Plaintiff
(T or Diversity Cases Only) and One Boxfor Defendant)
I 11 U.S. Government Federal Question PTE DEF PTE DEF
Plaintiff ([l.S. Governmenl Not a Party) Citizen of This State
0'' Incorporated or Principal Place □4
of Business In This State

I 12 U.S. Goveniinent I 14 Diversity Citizen of Another State □2 I [ 2 Incorporated and Principal Place □5 05
Defendant (indicate Citizenship ofParties in hem III) of Business In Another State

Citizen or Subject of a I I3 I I 3 Foreign Nation □6 06

Foreign Country
IV. NATURE OF SUIT an m One Box Only) Click here for: Njtture of Suit Code De.scrintions.
CONTRACT TORIS FORFEITURE/FENAl TV BANKRLFKA omiRaAjiTEs
PERSONAL INJURY ^625 Drug Related Seizure 422 Appeal 28 USC 158 3 375 False Claims Act
0
110 Insurance PERSONAL INJURY
120 Marine ^310 Airplane I I 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tarn (31 USC
130 Miller Act ^315 Airplane Product Product Liability ^ 690 Other 28 USC 157 3729(a))
140 Negotiable Instalment Liability [ [ 367 Health Care/ INTELLECTUAL 400 State Reapportionment
150 Recovery of Overpayment I 320 Assault, Libel & Phannaceutical PROPERTY RIGHTS 410 Antitnist
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act [ 330 Federal Employers' Product Liability j 830 Patent
B
450 Commerce
152 Recovery of Defaulted Liabilit>' I I 368 Asbestos Personal ^ 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) I 345 Marine Product Liability j 840 Trademari4 Corrupt Organizations
I I 153 Recovery of Overpayment
of Veteran's Benefits 3 350 Motor Vehicle
Liability PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
hABm
^710 Fair Labor Standards
I I 880 Defend Trade Secrets
Act of 2016
I 480 Consumer Credit
(15 USC 1681 or 1692)
160 Stockholders" Suits 355 Motor Vehicle Act I 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal ^ 720 Labor/Management S§<>CtALSiiCllkftY' Protection Act
195 Contract Product Liability [ 360 Other Personal Property Damage Relations 861 HIA (1395110 n 490 Cable/Sat TV
196 Franchise Injury I I 385 Property Damage ^ 740 Railway Labor Act 862 Black Lung (923) I 850 Securities/Commodities/
^ 362 Personal Injury - Product Liability ^751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
imrmmwrr civil Riciirs [ 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
z 10 Land Condemnation L^40 Other Civil Rights Habeas Corpus: ^791 Employee Retirement 893 Environmental Matters
220 Foreclosure 441 Voting I 463 Alien Detainee Income Security Act IfiFEDERAETAXStarST 895 Freedom of Information
230 Rent Lease & Ejectment I 870 Taxes (U.S. Plaintiff
3 896 Arbitration
442 Employment 510 Motions to Vacate Act
240 Torts to Land 443 Housing/ Sentence or Defendant)
245 Tort Product Liability Accommodations I 530 General □ 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property ^ 445 Amer, w/Disabilities ■ j 535 Death Penalty 26 USC 7609 Act/Review or Appeal of
Employment 462 Naturalization Application Agency Decision
3
Other.
^ 446 Amer. w/Disabilities • 540 Mandamus & Other 465 Other Immigration [ 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
^ 448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement

V. ORIGIN (Place an "X" in One Box Only)

[Vp Original Removed from 0 Remanded from I 14 Reinstated or I I 5 Transferred from I I 6 Multidistrict I I 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute undei^hicb
il Statute you are
under which you are filing
filing (Do
(, not citejurisdictionalstatutes unless dtversUy).

VI. CAUSE OF ACTION

Brief description of cause:

VII. REQUESTED IN CLASS ACTION

0 CHECK IF THIS IS A CLASS ACTION DEMaViD S CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P, JURY DEMAND: 0^es 0No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER

DATE Y OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE