Entries Tagged 'US Constitution' ↓

UPDATE: Compromise on Snowplows?

They are going to use a disclaimer. Sorry, but this won’t hold up in court. Huether give it up.

Here is a copy of the letter the attorney from Freedom From Religion Foundation sent to the city attorney: Freedomfromreligion

As you can see, he states several cases that show this is unconstitutional.


A little inspirational reading for the mayor (click to enlarge):




Heck, with a snowplow like this, the snow would melt at impact!

As any intelligent person that understands the US Constitution and 1st Amendment, and Jon Arneson would know, you can see where this is headed;

Arneson believes having those painting on city property puts the City into a corner where, by law, it would be seen as an endorsement of religion. He says U.S. Supreme Court rulings dealing with religion and government over the past 30 years support that.


I guess we are supposed to hear a resolution today from the city, I suspect if we don’t hear one by the weekend, that the city decided to quietly paint over the plow blades. We will see. I did notice it is already circulating the national news that our Mayor is Constitutionally inept. There was a blurb about it in the USA Today.



UPDATE: Mayor Huether proves once again he doesn’t understand the US Constitution


Triple-M doesn’t realize the Lutheran School doesn’t own the snowplows, we do, the taxpayers, while they can practice their ‘freedom of expression’ on government owned property, they cannot promote a particular religion (it really is that simple). If they want to paint privately owned school property, more power to them;

But Huether seemed adamant that the plow blades wouldn’t be removed.

“We are not going to be painting over those plow blades. We will not be painting over them unless I get some Supreme Court case that says that I have to,” Huether said.

Heuther is also reluctant to suggest changes to the “Paint the Plows” program for fear of trampling on the First Amendment rights of participating schools.

“That’s one of the things we’re struggling with,” said Huether. “How do we move forward and still allow people to have freedom of expression?”

Mr. Huether may just get his wish. Watch for the ACLU to be all over this. I also suspect the NCAC may jump into this. So now the mayor is willing to waste tax dollars on Supreme Court cases because he doesn’t have a clue about our US Constitution. How did I know he was going to take this stance?

During the recent informational today, Staggers was defending the plows, calling it a ‘political issue’. No Kermit, it is a Constitutional issue. It is one thing to ‘express’ yourself about a season (winter) and it seems all the other schools figured it out, it is entirely another issue to be disguising ‘artistic expression’ with a ‘Biblical message’.

Also, last I checked, artistic expression relates to somewhat original ideas, there was nothing original from stenciling already existing designs. Someone else also expressed to me we may be opening up ourselves to copyright infringement laws with Coca-Cola.

I will give city attorney Fiddle-Faddle credit, he told councilor Staggers that it was a ‘legal’ issue, and it is, a Constitutional legal issue. And Fiddle should be well-versed in them, he has plenty of case law proving the city doesn’t understand Constitutional law.

Welcome to South Dakota, where the Constitution doesn’t apply

When I see stuff like this, I just shake my head, especially when a governmental body doesn’t understand the US Constitution, ESPECIALLY a school board. Apparently in Miller, SD, they don’t teach any civics courses;

Zacher said he was disappointed the board was forced to change its policy and disallow the Bible distribution.

First off, NO one forced the board to do anything. Following the US Constitution should be a duty of any governmental body, it shouldn’t be something you should even have to think about or second guess, it should come naturally. I bet if someone tried to take away your guns in good ol’ Miller, the Constitution would rear it’s ugly head and be on your side. But like most Hicks, you like to pick and choose what parts of the Constitution you think should apply.

“Our founding fathers felt God very strong in this country,” he said.

Zacher, you are absolutely correct. In fact they thought so highly of God and religion, they wanted to keep government OUT of their personal beliefs on God. The US Constitution’s view on this is to protect people from government’s intrusion into your religious beliefs. When are you going to figure this out?! Does somebody have to hit you upside the head with a bible or better yet a copy of the Constitution. Geez!

Why is the city paying for something the state should cover?

I got a surprise yesterday while attending the City Council working session. As some of you may or may not know, while the state shares revenue with alcohol sales, they don’t reimburse the city police department for conducting alcohol sale stings. I think a solution would be the city PD to stop doing the stings and require the Highway Patrol (which gets state funding) to do the stings.

Kenny Anderson says the problem is that people who fail the stings are not the owners or managers in most cases, it’s the clerks. While this is true, it is also the responsibility of the company to properly train their employees AND hire responsible people.

I have often said the solution is simple. Require anyone who is purchasing alcohol or tobacco to put their ID in a scanner. If they don’t or if the ID is incorrect, the cash register would refuse the sale. Of course, this would piss off a lot of older people who clearly look old enough to purchase. This would also probably get blow back from the malt beverage industry. I know a few years ago I read a study that said over 30% of beer that is consumed in this country is drunk by underage people. That’s a lot of lost revenue if roadblocks are put for these people to purchase.

Texting Ban – Still pointless & Unneeded

When the city decided to pass a texting ban, I agreed with councilor Staggers and some members of the Highway Patrol and SFPD, that it was unneeded because there are already laws in place like distracted driving and reckless driving that cover texting and driving. If you cause an accident while texting or talking on your phone, or  eating a hamburger or scratching your butt while driving, you will get one of these tickets. Don’t get me wrong, I think texting while driving is idiotic, but since the Supreme Court’s ruling yesterday about getting a warrant to search someone’s phone, it is going to be a lot harder to prove someone was texting and driving. That pesky US Constitution and 4th Amendment prevailed once again. Just wondering when our state legislature and city council are going to bother reading it and stop passing pointless laws and ordinances?

My mixed feelings about the ‘invocation’ and the Supreme Court Ruling

Screen shot 2014-05-05 at 9.30.03 PM

Believe it or not, as a deist, I support it, to a degree. Ben Franklin, my favorite founding father, convinced me that a ‘prayer’ or a time of ‘reflection’ helped calm lawmakers. He felt that before the debates and disagreements in the Congressional Congress started, they essentially ‘broke bread’ together, they shared a time of common good, and reflection, and how our fellow man is our brothers and sisters and while we may want to strangle each other over the next several hours, we will meet in peace first, go fist-a-cuffs, then enjoy some barley pop afterwards.

Of course, our fine mayor must twist it into being about water, wine and tennis;

“Whether it be a motivational reading or a prayer, we have stewards of all denominations actively engaged to help represent the increased diversity of our town,” Huether said.

I wonder if anyone has told Mike that Dale Carnegie wasn’t the son of gawde?

This isn’t about religion, as much as people want to make it about that on both sides, I will say this is about getting along.

City attorney David Fiddle-Faddle proposing some interesting changes to the ethics board procedures

I found some of his proposals to be very interesting, especially in this section;

FIRST PARAGRAPH: What confidentiality rules? A private citizen is protected by the US Constitution and the 1st Amendment. They don’t have to keep ANYTHING confidential. If I file a complaint against an elected official for a certain reason, I can tell anyone I want to about the complaint. City charter and ordinance does not trump the US Constitution. Sorry Fiddle-Faddle, you are not fooling anyone with this proposal.

SECOND PARAGRAPH: The word frivolous means all kinds of things to all kinds of people, as defined in the dictionary;

1. characterized by lack of seriousness or sense: frivolousconduct.

2. self-indulgently carefree; unconcerned about or lacking anyserious purpose.

3. (of a person) given to trifling or undue levity: a frivolous,empty-headed person.

4. of little or no weight, worth, or importance; not worthy of serious notice: a frivolous suggestion.

What may be important to you, may not be important to me. This proposal is just an out for the ethics board to throw out complaints they don’t want to deal with. I can see why Fiddle-Faddle was unemployed when he came crawling to the city for a job.

Dan Daily case files

I have spoken with many people about Dan’s case after he testified to the city council last week, many are curious just what the city did to him. If you have time I encourage you to read these three files

Original filed case, 2008: Daily vs City lawsuit 5-29-08

Caldwell’s opinion: caldwell

SD Supreme Court’s opinion: scruling

Thank You Dan Daily!

I suggested on Facebook over on Stormland TV News‘ site that instead of Daily seeking damages from the city, we should all just send him a thank you card and a dead president for sticking up for our constitutional rights. Dan risked life and limb defending our country in Vietnam, and he spent a lot of his own treasure defending our constitutional rights – right here in Sioux Falls;

Dan Daily, 4916 E. Maywood Drive, SF, SD 57110

Justice served! Will former city attorney Shawn Tornow be held accountable?

It is no surprise to me that the South Dakota Supreme Court has upheld a judge’s ruling that Sioux Falls’ administrative appeals process is unconstitutional. It doesn’t even take a lawyer to figure that out;

Dan Daily sued the city in 2008 after receiving four citations in two years for violating city code with a driveway extension up to a fire hydrant. He lost his appeal to the city but decided to pursue the matter in the courts rather than pay the $200 fine.

The high court on Thursday affirmed a trial court opinion that the city’s enforcement violated Daily’s constitutional rights to due process and equal application of the law.  The justices say the city took a position that the issuance of a city code enforcement citation assumed non-compliance, and Daily incorrectly bore the burden of proving that the city incorrectly issued it.

The opinion, which is linked above, is 18 pages. Here are some finer points;

After a four-day trial, the trial court concluded that the City’s administrative appeals process, both as written and as applied, as well as the enforcement of its zoning ordinances, violated Daily’s constitutional rights to procedural due process and equal protection. We affirm.

(former) city attorney Shawn Tornow at his finest unconstitutional self;

The parties dispute whether the October hearing on citations 1313 and 1379 took place. At the court trial in the declaratory judgment action, Daily offered his personal calendar and detailed testimony about the hearing. He testified that after Daily questioned Hartmann regarding the citations, Tornow stopped the hearing and asked him to step out of the room. When Daily entered the room several minutes later, Tornow told him that he would receive additional citations if he did not remove the concrete extension to his driveway. Daily did not receive a decision regarding his appeals of the citations. In contrast, the City, through the testimony of Hartmann, a paralegal for the city attorney’s office, and a City director  who served on the decision panel, contended that Daily did not appear for the hearing. The City ordinarily records its administrative hearings, but no audio recording for this hearing has been found. The outside cover of the City’s official file for the citations states, “No Show, No Tape,” but it is not clear whether this note refers to the October hearing or the September hearing for which the hearing examiner was not available.

The City did not contact Daily again regarding the concrete extension to his driveway until April of 2008, when he received citations 2545 and 2546 in the mail. Citation 2545 cites the same zoning ordinances as citation 1313, and citation 2546 cites the same municipal code section as citation 1379. Daily appealed citations 2545 and 2546, alleging selective enforcement and double jeopardy. After receiving a notice scheduling a hearing on both citations, Daily retained an attorney.

A hearing on citations 2545 and 2546 took place on April 29, 2008. The City Attorney’s office hired James Robbennolt, a Sioux Falls attorney, to serve as the hearing examiner.5 Before the hearing, Robbennolt informed Daily that he bore the burden of proving that the City incorrectly issued the citations. Tornow informed Daily’s attorney that the City’s administrative appeals ordinance provides that the technical rules of evidence do not apply but that irrelevant or immaterial evidence may be excluded. During the hearing, Tornow repeatedly objected to the introduction of evidence on grounds other than relevance, and Robbennolt sustained several of his objections.

The first trial, which was delayed several months said ultimately what the SDSC said;

In May of 2008, Daily initiated this declaratory judgment action against the City. A four-day trial was held over a period of several months. After the trial, the parties submitted proposed findings of fact and conclusions of law. The trial court ultimately concluded that the City’s administrative appeals process, both as written and as applied, as well as the enforcement of its zoning ordinances violated Daily’s constitutional rights to procedural due process and equal protection.

This is also an important factor in the courts decision;

The City operates under a home rule charter. The South Dakota Constitution describes “home rule” municipalities:

A chartered governmental unit may exercise any legislative power or perform any function not denied by its charter, the Constitution, or the general laws of the state. The charter may provide for any form of executive, legislative and administrative structure which shall be of superior authority to statute,

Which brings us to this;

Daily challenged the City’s administrative appeals process under the Fourteenth Amendment to the United States Constitution and article VI, section 2 of the South Dakota Constitution. Both provide that no person shall be deprived of “life, liberty, or property without due process of law.”

Which brings us to why his rights were violated;

The heart of the matter is whether the City’s administrative appeals process deprived Daily of a protected property interest without due process of law. The trial court concluded that the City’s administrative appeals process violated Daily’s procedural due process rights for five reasons: (1) Daily bore the burden of proving that the City incorrectly issued the citations; (2) Daily was not afforded an opportunity to subpoena witnesses or documents or to otherwise investigate the basis of the citations; (3) the City issued Daily multiple citations for a single violation of its zoning ordinances and municipal code; (4) the hearing examiner did not apply the applicable rules of evidence in a fair and even-handed manner; and (5) the failure to keep a complete and accurate record of Daily’s administrative appeal hampered the trial court’s ability to conduct meaningful review of the proceedings. The City challenges the trial court’s conclusions.

There is a whole lot more, and I encourage you to read the opinion. But my probing question is, will Tornow be disbarred for not upholding the US Constitution, and even furthermore removed from the state legislature? This man belongs no where near law books.



What’s one more unconstitutional ordinance on the books?

“Our goal is to put everyone on the same playing field, except the pawn shop owners.”

Here we go again, our constitutionally inept city council with the help of the SFPD and a laundry list of consultants have decided that pawn shops, flea markets and antique dealers should be treated differently then other business owners;

The main concern is that a third-party private company will have their customer records and officials are able to view them without a warrant, she said.

Industry members proposed their own ordinance, which would require a warrant for law enforcement officials to be able to look at store records.

Twenty-one Sioux Falls businesses have signed off on the industry’s alternative proposal.

What’s one more ordinance on the books in Sioux Falls that violates the US Constitution? We gotta keep our city attorneys busy. It’s kinda boring when they only have one constitutional lawsuit going at a time. (currently they have lawsuits against them on code enforcement, red light cameras and sewer backups that occurred during the Munson administration.)

But as usual, Vernon has a great excuse;

Councilor Vernon Brown said the new ordinance is by no means extreme, especially compared with other states.

“The pawn industry is able to be regulated according to the courts for consumer protection.”

Who gives a rat’s ass what other states are doing? It’s blatantly unconstitutional. But you seem to want to roll the dice and see if the courts will rule in the ordinance’s favor. That is silly. Why put ourselves in that position? Councilor Anderson is the only one to stand up to the ordinance (ITEM #52 • FF to 1:50)

Instead of trying to find out who is selling stolen Sublime CD’s maybe you should be trying to catch casino thieves.

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