Argus Leader Media v. Hogstad

• Decision Date: 20 September 2017
• Docket Number: 27903
• Citation: 902 N.W.2d 778
• Parties: ARGUS LEADER MEDIA, Plaintiff and Appellant, v. Lorie HOGSTAD, in her official capacity as Sioux Falls City Clerk, Tracy Turbak, in his official capacity as Sioux Falls Finance Officer, and City of Sioux Falls, Defendants and Appellees.
• Court: South Dakota Supreme Court

902 N.W.2d 778

ARGUS LEADER MEDIA, Plaintiff and Appellant,

v.Lorie HOGSTAD, in her official capacity as Sioux Falls City Clerk, Tracy Turbak, in his official capacity as Sioux Falls Finance Officer, and City of Sioux Falls, Defendants and Appellees.

27903

Supreme Court of South Dakota.

ARGUED JANUARY 11, 2017

OPINION FILED September 20, 2017

JON E. ARNESON, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.

JAMES E. MOORE, JORDAN J. FEIST of Woods, Fuller, Shultz & Smith PC, Sioux Falls, South Dakota, Attorneys for defendants and appellees.

SEVERSON, Justice

[¶1.] The City of Sioux Falls entered into a confidential settlement agreement with several contractors that built the Denny Sanford Premier Center in Sioux Falls, S.D. The settlement agreement's confidentiality clause provided that, with the exception of the settlement amount, the details of the contract would remain confidential. A reporter for the Argus Leader sought a copy of the agreement; the City denied the request. The Argus Leader asked the City to reconsider its position, but the City refused to provide a copy of the agreement. After the denial, the Argus Leader commenced this action, alleging that the agreement is a public record and seeking an order compelling the City to provide a copy. The circuit court determined that the settlement agreement was not open to public inspection under SDCL chapter 1-27. Argus Leader appeals. We reverse.

Background

[¶2.] In 2014, the City of Sioux Falls raised questions regarding the aesthetic appearance of the exterior siding of the newly constructed Denny Sanford Premier Center. The City reached a settlement agreement with the general contractor and four subcontractors of the project. The agreement addressed both the final amounts due and the City's dissatisfaction with the work. One of the subcontractors later disputed the terms of the agreement. The City retained outside counsel, who drafted a complaint to enforce the settlement agreement. However, after further negotiation, the parties to the original agreement reached another settlement agreement. The City's outside counsel sent the drafted complaint with an admission of service to one of the subcontractors, but it did not commence a lawsuit prior to settlement.

[¶3.] In September 2015, the City announced through its website that it had reached a global settlement of the dispute with the contractors of the Premier Center.

In October, a reporter for the Argus Leader contacted the city attorney and requested a copy of the settlement between the City and the contractors involved in construction of the Premier Center. The city attorney denied the request, citing SDCL 1-27-1.5(20) and the agreement's confidentiality provision as grounds for the denial. The reporter sent another letter asking for the City to reconsider the denial. Again, the City denied the request. On December 1, 2015, pursuant to SDCL 1-27-38, the Argus Leader commenced a civil action contending that the agreement is a public record and asking that the court order the City to produce a copy of the agreement.

[¶4.] Both the Argus Leader and the City moved for summary judgment. The circuit court denied the Argus Leader's motion and granted summary judgment in favor of the City. The court found that pursuant to SDCL 1-27-1.5(20), the contract is not open to public inspection. On appeal, the Argus Leader contends the court erred when it determined that the contract is not an open record. Furthermore, the Argus Leader contends that even if the circuit court correctly interpreted SDCL 1-27-1.5(20), more specific provisions provide that the settlement agreement is an open public record.

Standard of Review

[¶5.] We review the circuit court's grant of summary judgment de novo to determine whether genuine issues of material fact exist and whether the court correctly applied the law. Heitmann v. Am. Family Mut. Ins. Co. , 2016 S.D. 51, ¶ 8, 883 N.W.2d 506, 508-09. When there are no material facts in dispute, our review is limited to determining whether the court correctly applied the law. Id. at 509.

Analysis

[¶6.] In 2009, the Legislature enacted the South Dakota Public Records Act, which broadened the presumption of openness in regard to public records. Mercer v. S.D. Att'y Gen. Off. , 2015 S.D. 31, ¶ 17, 864 N.W.2d 299, 303 ; see also SDCL chapter 1-27. SDCL 1-27-1 provides:

Except as otherwise expressly provided by statute, all citizens of this state, and all other persons interested in the examination of the public records, as defined in § 1-27-1.1, are hereby fully empowered and authorized to examine such public record, and make memoranda and abstracts therefrom during the hours the respective offices are open for the ordinary transaction of business and, unless federal copyright law otherwise provides, obtain copies of public records in accordance with this chapter.

Each government entity or elected or appointed government official shall, during normal business hours, make available to the public for inspection and copying in the manner set forth in this chapter all public records held by that entity or official.

SDCL 1-27-1.1 states, in relevant part:

Unless any other statute, ordinance, or rule expressly provides that particular information or records may not be made public, public records include all records and documents, regardless of physical form, of or belonging to this state, any county, municipality, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing.

Other than SDCL 1-27-1.5(20), the City does not contend that "any other statute, ordinance, or rule expressly provides" that the contract "may not be made public." SDCL 1-27-1.5 states, in relevant part,

The following records are not subject to §§ 1-27-1, 1-27-1.1, and 1-27-1.3 : ...

(20) Any document declared closed or confidential by court order, contract, or stipulation of the parties to any civil or criminal action or proceeding[.]

[¶7.] The dispute over SDCL 1-27-1.5(20) arises from an ambiguous trailing modifier. The parties dispute whether the phrase "of the parties to any civil or criminal action or proceeding" modifies "contract" or only "stipulation[.]" The City maintains that the circuit court correctly determined that "The Doctrine of the Last Antecedent" controls the matter; the phrase only modifies "stipulation." "Under the rule [of the last antecedent], the modifying clause is confined to the last antecedent, unless there is something in the [subject matter or] dominant purpose of the provision that requires a different interpretation." Hoglund v. Dakota Fire Ins. Co. , 2007 S.D. 123, ¶ 21, 742 N.W.2d 853, 859 (citing Rogers v. Allied Mut. Ins. Co. , 520 N.W.2d 614, 617 (S.D. 1994) ); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 146 (2012). Thus, the City argues, the contract falls within "any document [that has been] declared closed or confidential by ... contract," because it declares itself confidential. According to the Argus Leader, the phrase "of the parties to any civil or criminal action or proceeding" modifies "contract" as well. The Argus Leader contends that using the rule of the last antecedent would unreasonably expand the provision by allowing the government to contract around the entirety of the Public Records Act and that the Public Records Act's primary purpose requires an interpretation different than that given SDCL 1-27-1.5(20) by the circuit court. Therefore, in this case, the Argus Leader maintains that the contract remains an open record because none of the parties to the contract commenced litigation.

[¶8.] Typically, the syntactic canons applicable to this type of phrasing would be the "Last Antecedent Canon"¹ or "Series-Qualifier Canon."² See Scalia & Garner, supra ¶ 7, at 144-151. Those canons would generally call for the phrase "of the parties" to modify either the word "stipulation" alone or to modify each of the words: "court order"; "contract"; and "stipulation." However, Scalia and Garner recognize that "[p]erhaps more than most of the other canons, [the series-qualifier canon] is highly sensitive to context. Often the sense of the matter prevails." Id. at 150. Clearly, "of the parties to any civil or criminal action or proceeding" cannot modify "court order." The City asserts that the "Legislature could have written the statute such that the phrase ‘of the parties to any civil or criminal action or proceeding’ would modify the word ‘contract.’ Instead the Legislature placed the modifier at the end of the sentence and isolated the word ‘contract’ between commas."

[¶9.] Nevertheless, comma placement is not dispositive. Punctuation may be a useful tool to interpret statutes, but is not necessarily determinative. See SDCL 2-14-8 ("Punctuation shall not control or affect the construction of any provision when any construction based on such punctuation would not conform to the spirit and purpose of such provision."); see also Scalia & Garner, supra ¶ 7, at 140-43 (explaining that sometimes the court is "textually justified in ignoring the grammarian's reading" and must "override[ ] punctuation"). Grammatical rules "can be overcome by other textual indications of meaning. ... Grammatical usage is one of the means (though not the exclusive means) by which the sense of a statute is conveyed." Scalia & Garner, supra ¶ 7, at 140-41. As we have explained, "[s]ince statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. In construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result." Hayes v. Rosenbaum Signs & Outdoor Advert., Inc. , 2014 S.D. 64, ¶ 28, 853 N.W.2d 878, 885 (quoting Martinmaas v. Engelmann , 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611 ).

[¶10.] Rather than syntactic...