South Dakota — From www.mitchellrepublic.com- A recent judge’s decision could clear the way for a strip club to take its lawsuit against McCook County to trial.
The judge in the case ruled on the county’s motion for “summary judgment” — basically, a request for a pre-trial decision against the strip club on all issues in the case.
Circuit court Judge David Gienapp granted the county’s request on all but one issue, and James Lester, Fargo, N.D.-based lead attorney for the strip club, said a trial can now be scheduled on that one issue.
Scott Bergthold, the Chattanooga, Tenn., attorney representing the county in the case, said the county will try some procedural maneuvers to avoid a trial.
“But if it comes down to a trial, we’ll try the case,” Bergthold said Thursday by phone. “We feel confident the county’s position is sound.”
The one remaining issue is whether the county, in enacting a law regulating sexually oriented businesses, established a legitimate connection between those businesses and alleged “secondary effects” such as increased crime. Without proper evidence of such a connection, the club’s lawsuit claims, the county cannot restrict the club owners’ freedom of speech. In this case, “speech” is nude dancing.
The club, known as Racehorses, is located about three miles east of Salem. Bob Rieger opened the club in 2003 and has faced opposition from some in the county ever since. He is one of numerous plaintiffs in the lawsuit who are listed under the umbrella of Jag Development.
In Judge Gienapp’s decision, he quoted from other court decisions to help explain that the county “cannot ‘get away with shoddy data or reasoning’ ” in its attempt to establish a connection between the club and negative secondary effects. Gienapp noted five aspects of the county’s data or reasoning that are in dispute:
• The surveys utilized in connection with the county ordinance appeared to be from large urban areas, despite there being no large urban areas in McCook County;
• No studies cited by the county appear to be from rural areas;
• The club owner has submitted its own surveys addressing McCook County;
• McCook County State’s Attorney Roger Gerlach indicated in an affidavit, according to the judge, that “the county’s intent in drafting the ordinance was to close down Racehorses” rather than regulate it;
• And the county continued to adopt amendments, or ordinance re-enactment, during the progression of the litigation.
The McCook County Commission enacted an ordinance to regulate sexually oriented businesses in 2005 and has adopted subsequent, related ordinances. Rieger, whose club is still operating with nude dancing, is challenging the state constitutionality of the county’s regulations.
The county has elected not to enforce its regulations while the lawsuit is pending.
The lawsuit focuses on Article 6, Section 5 of the state constitution, which states in part that “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.”