Doe v. Nelson

• Decision Date: 05 May 2004
• Docket Number: No. 22866.,22866.
• Citation: 680 N.W.2d 302,2004 SD 62
• Parties: John DOE, Jane Doe, John Doe # 2, and Others Similarly Situated, Applicants and Appellees, v. Chris NELSON, in his official capacity as the South Dakota Secretary of State, and the South Dakota Board of Pardons and Paroles, Respondents and Appellants.
• Court: South Dakota Supreme Court

680 N.W.2d 302

2004 SD 62

John DOE, Jane Doe, John Doe # 2, and Others Similarly Situated, Applicants and Appellees, v. Chris NELSON, in his official capacity as the South Dakota Secretary of State, and the South Dakota Board of Pardons and Paroles, Respondents and Appellants.

No. 22866.

Supreme Court of South Dakota.

Argued March 23, 2004.

Decided May 5, 2004.

Thomas K. Wilka of Hagen, Wilka & Archer, P.C., Sioux Falls, South Dakota, Attorneys for applicants and appellees.

Lawrence E. Long, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, South Dakota, Attorney for respondents and appellants.

Jon E. Arneson, Sioux Falls, South Dakota, for Amici Curiae.

GILBERTSON, Chief Justice.

[¶ 1.] Doe and other applicants (hereinafter Applicants) sought a writ of prohibition against Chris Nelson, the South Dakota Secretary of State (Secretary of State) and the South Dakota Board of Pardons and Paroles (Board), prohibiting the Secretary of State and Board from releasing the names contained in numerous sealed pardons in the Secretary's possession. The trial court granted the writ. On appeal, we focus not on the general broad Constitutional authority of the Governor to grant or deny pardons, but rather the narrow question of their status once the Governor has granted them. For the reasons set forth herein, we reverse and remand with instruction to dissolve the writ.

FACTS AND PROCEDURE

[¶ 2.] The facts in this case are not in dispute. In January of 2003, a representative of the Sioux Falls Argus Leader,¹ a newspaper, asked the Secretary of State for a list of individuals who were named in pardons filed with Nelson for the years 1995 though 2002. All of the pardons contained notation from the Governor indicating the pardons were sealed "pursuant to section 24-14-11 of the South Dakota Codified Laws."² The Secretary of State determined that approximately 279 pardons had been filed during that time period containing that language. Further research by the Secretary of State established that from November 1972 through July 17, 1984, no pardon contained any type of language sealing the pardon. From July 17, 1984 to January of 2003, nearly all, if not all pardons contained this type of sealing language.³

[¶ 3.] Prior to a response to the press request, the Secretary of State sought an opinion from the Attorney General as to the status of these 279 sealed pardons. In February of 2003, the Attorney General issued AGO 03-01 in which he concluded that those pardons granted by the Governor outside of the Board's involvement under SDCL ch. 24-14, could not be legally sealed under SDCL 24-14-11. The Attorney General concluded that these 279 pardons were records open for public inspection under SDCL 1-27-1.

[¶ 4.] Based on the opinion of the Attorney General, the Secretary of State announced he would consult with the Board to determine which pardons were not issued pursuant to SDCL ch. 24-14. When this was completed, the Secretary would then open to public inspection those pardons not issued per SDCL ch. 24-14 but instead issued directly under Article IV, Section 3 of the South Dakota Constitution.

[¶ 5.] Applicants state they are some of those who received their pardons directly under Article IV, Section 3, rather than under SDCL ch. 24-14. They filed this action seeking a writ of prohibition to prohibit the Secretary of State and Board from unsealing and allowing public inspection of records relating to those pardons. Based upon constitutional analysis, the trial court issued the writ. It concluded the 1972 amendments to Article IV, Section 3 gave the Governor exclusive constitutional authority to pardon, including the power to seal pardons. The trial court also concluded that the separation of powers doctrine precluded the Legislature from encroaching upon what the court concluded was the Governor's exclusive pardoning authority.

[¶ 6.] The Secretary of State and the Board appeal to this Court. As of this date, the pardons are not part of the court record. We assume they remain in the possession of the Secretary of State and remain sealed. As such no one, including this Court, has access to the identity of the pardon recipients.

STANDARD OF REVIEW

[¶ 7.] "A writ of prohibition is an extraordinary remedy." South Dakota Bd. of Regents v. Heege, 428 N.W.2d 535, 537 (S.D.1988). It may only issue upon a showing that a public officer is acting or is about to act without or in excess of the officer's jurisdiction or authority conferred by law. SDCL 21-30-1. The ordinary standard of review of a trial court's decision involving the request to issue a writ of prohibition is abuse of discretion. H & W Contracting v. City of Watertown, 2001 SD 107, ¶24, 633 N.W.2d 167, 175. In this case, however, there were no issues of fact for the trial court to resolve. The issues before it were solely those of statutory and constitutional interpretation, thus being questions of law. As such, an erroneous interpretation of law if prejudicial, may be by definition an abuse of discretion. Cf. State v. Ashbrook, 1998 SD 115, ¶6, 586 N.W.2d 503, 506. The trial court's legal conclusions are fully reviewable by us, and no deference is given them. Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994).

[¶ 8.] 1. Does either Article 4, Section 3, of the South Dakota Constitution or any statute provide the Governor with the legal authority to seal the pardons granted to the Applicants.

[¶ 9.] The current version of Article IV, Section 3 of the South Dakota Constitution, as last amended in 1972, states as follows:

The Governor may, except as to convictions on impeachment, grant pardons, commutations, and reprieves, and may suspend and remit fines and forfeitures.

Neither "grant" nor "pardon" are defined in the constitution. "The words used in the Constitution are to be taken in their natural and obvious sense, and are to be given the meaning they have in common use unless there are very strong reasons to the contrary." In re Janklow, 1999 SD 27, ¶ 3, 589 N.W.2d 624, 626 (citation omitted). A common legal definition of "grant" at that time of the constitutional amendment's adoption was "to bestow; to confer; upon someone other than the person or entity which makes the grant." Black's Law Dictionary 829 (4th ed 1968). "Pardon" was defined as:

An act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.

Id. at 1268.

[¶ 10.] It is clear that the wording of the text of Article IV, Section 3, does not provide an explicit answer to the question of whether the Governor has the legal authority to seal the 279 pardons. Both parties (as well as the amicus) recognize as much and spend a significant portion of their legal argument in an attempt to establish that the legal evolution of pardons in this State support their interpretation of the current provision. They bring to our attention previous versions of what is now Article IV, Section 3, South Dakota constitutional debates and case law from this and other jurisdictions. In the past, such secondary sources outside of the text of the constitutional provision have provided us with assistance. See Wegleitner v. Sattler, 1998 SD 88, ¶ 11, n. 3, 582 N.W.2d 688, 692. The "historical context" of a constitutional provision is a guide to its interpretation. Cleveland v. BDL Enterprises, Inc., 2003 SD 54, ¶ 40, 663 N.W.2d 212, 223. "Where the meaning of a constitutional provision is unclear, it is appropriate to look at the intent of the drafting bodies[.]" Pitts v. Larson, 2001 SD 151, ¶ 24, 638 N.W.2d 254, 260 (Gilbertson, C.J., dissenting); Poppen, 520 N.W.2d at 242; Cummings v. Mickelson, 495 N.W.2d 493, 499 (S.D.1993).

[¶ 11.] In 1889 the South Dakota Constitution⁴ was enacted. In considering the power of the new Governor to pardon, the constitutional convention looked to existing Territorial law on the subject of sealing pardons. Section 551 of the 1877 Territorial criminal procedure code required that a pardon granted by the Territorial Governor be filed with the Secretary of Dakota Territory, and as a record, it was "open to public inspection." The new constitution contained Article IV, Section 5 which set forth the powers of the Governor regarding pardons:

The governor shall have the power to remit fines and forfeitures, to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment; provided, that in all cases where the sentence of the court is capital punishment, imprisonment for life, or for a longer term than two years, or a fine exceeding two hundred dollars, no pardon shall be granted, sentence commuted or fine remitted, except upon the recommendation in writing of a board of pardons, consisting of the presiding judge, secretary of state and attorney general, after full hearing in open session, and such recommendation, with the reasons therefore, shall be filed with the office of the secretary of state, but the legislature may by law in all cases regulate the manner in which the remission of fines, pardons, commutations and reprieves, may be applied for. Upon conviction for treason he shall have the power to suspend the execution of the sentence until the case shall be reported to the legislature at its next regular session, when the legislature shall pardon or commute the sentence, direct the execution of the sentence or grant a further reprieve. He shall communicate to the legislature at each regular session each case of remission of fine, reprieve, commutation or pardon, granted by him in the cases in which he is authorized to act without the recommendation of the said board of pardons, stating the name of the convict, the crime of which he is convicted, the sentence and its date, and the date of the remission, commutation, pardon or reprieve, with his reasons for granting the

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