The action challenges trade legislation passed by the 1999 South Dakota Legislature as Senate Bill 194 and signed into law by Governor Janklow on March 18, 1999. Plaintiffs filed this lawsuit on August 16, 1999.
Plaintiffs resist the motion to dismiss.
The Court held a telephone conference with counsel for the parties, during which the Court heard oral argument on the motion to dismiss. Defendants do not seriously contest that general proposition of law, but raise the question whether plaintiffs' lawsuit falls within the Ex parte Young exception. Defendants argue that plaintiffs cannot establish an ongoing violation of federal law by the named state officials to justify application of the Ex parte Young exception to Eleventh Amendment immunity. Defendants argue the plaintiffs have not alleged in their Complaint that either the Governor or the Attorney General has taken any action or threatened to take action against the plaintiffs to enforce the provisions of the challenged state legislation, and defendants contend that a hypothetical threat is not enough. Defendants suggest this case is unlike other cases in which direct state action was challenged by bringing a declaratory judgment action against state officials.