South Dakota Official Excluded from Town Board Meetings

Mary Lee is the elected Clerk for Mathews Township–a small, rural town in South Dakota. She also owns land through which a creek runs before running underneath a nearby street via culverts. The creek flooded in 2011, requiring the town to replace the culverts. Mary and her husband wanted the culverts to be bigger–presumably to accommodate more water and prevent flooding on their land.

An example of using three culverts to divert water underneath a road

The town Board held a meeting to discuss the culvert-replacement project. The Lees attended and publicly criticized the Board’s decision and the decision-making process. The meeting got “heated” and had to be adjourned. The Board later held closed-door meetings on the project–without their Clerk, Mary Lee. (This violated South Dakota’s open-meeting laws.)

She sued the town Board, arguing that they violated her First Amendment rights by excluding her from the later meetings. She alleged that the Board closed its doors and excluded her only after they knew what she was going to say–that she was going to argue for the bigger culverts.

The Eighth Circuit found that the Board was not immune from suit on her claims for violation of her free-speech and free-association rights. This means that her rights were “clearly established.” The court did find, however, that Mary Lee did not have a clearly established First Amendment right “to petition the government for a redress of grievances” by participating in the Board’s meeting because there is no right to participate in a non-public government meeting.

Case: Lee v. Driscoll, No. 16-3139 (8th Cir. Sept. 7, 2017) (opinion here)