In re An Appeal by an Implicated Individual

• Decision Date: 05 April 2023
• Docket Number: 30063-a-SRJ
• Citation: 2023 S.D. 16
• Parties: IN THE MATTER OF AN APPEAL BY AN IMPLICATED INDIVIDUAL
• Court: South Dakota Supreme Court

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2023 S.D. 16

IN THE MATTER OF AN APPEAL BY AN IMPLICATED INDIVIDUAL

No. 30063-a-SRJ

Supreme Court of South Dakota

April 5, 2023

Argued March 23, 2023

Appeal from the Circuit Court of the Second Judicial Circuit Minnehaha County, South Dakota the Honorable James A. Power Judge

Stacy R. Hegge of Gunderson, Palmer, Nelson & Ashmore, LLP Pierre, South Dakota Talbot J. Wieczorek of Gunderson Palmer, Nelson & Ashmore, LLP Rapid City, South Dakota Attorneys for appellant Implicated Individual.

Paul S. Swedlund Solicitor General Pierre, South Dakota Attorney for appellee State of South Dakota.

Jeffrey R. Beck Sioux Falls, South Dakota Attorney for appellee ProPublica.

Jon E Arneson Sioux Falls, South Dakota Attorney for appellee Argus Leader.

JENSEN, CHIEF JUSTICE

[¶1.] Following the completion of the State's criminal investigation involving T. Denny Sanford, also known as Implicated Individual,^[1] the circuit court entered an order to unseal the search warrant affidavits related to the investigation. Sanford appeals, challenging the denial of his request to inspect and participate in redacting the affidavits before the circuit court unseals them. We affirm.

Background

[¶2.] This is the second appeal by Sanford challenging the unsealing of a search warrant file containing five separate search warrants, returns of the warrants, inventories, and affidavits in an investigation involving Sanford. See In re an Appeal by an Implicated Individual, 2021 S.D. 61 966 N.W.2d 578 (Implicated Individual I). In Implicated Individual I, the circuit court had initially sealed the entire search warrant file based upon law enforcement's representation that disclosure would impede the then-ongoing investigation. A ProPublica reporter requested the documents in the sealed file, prompting the circuit court to review the scope of its authority to seal the entirety of the search warrant file. ProPublica and intervenor Argus Leader (Press, collectively) submitted a joint brief to the circuit court arguing for the file to be unsealed. At the time, the State resisted unsealing the file, raising concerns that doing so would interfere with the investigation. Sanford also resisted the request, arguing that the release would impact his privacy and reputation.

[¶3.] Relying upon SDCL 23A-35-4.1, the circuit court issued amended orders providing that it was not authorized to seal the contents of the warrants, return of the warrants, or the inventories. The court ordered such "documents shall be unsealed and become publicly accessible court records." The court concluded pursuant to SDCL 23A-35-4.1 that the affidavits in support of the five search warrants would remain sealed, but "[f]ollowing termination of the investigation or filing of an indictment, the document's contents will [be] unsealed and available to public inspection or disclosure as a publicly accessible court record." Sanford and the State appealed the orders, and the circuit court stayed its ruling pending appeal.

[¶4.] On appeal to this Court, Sanford argued that rules governing access to court records found in SDCL chapter 15-15A, promulgated by the South Dakota Supreme Court, conflicted with statutes enacted by the Legislature and must prevail because of the judiciary's inherent authority over its records. Implicated Individual I, 2021 S.D. 61, ¶ 19, 966 N.W.2d at 584. We interpreted the plain language of SDCL 23A-35-4.1 to permit a circuit court to "seal the contents of an affidavit in support of a search warrant upon a showing of reasonable cause, but only until the investigation is terminated or an indictment or information is filed." Id. ¶ 18, 966 N.W.2d at 583. We further observed that "[t]he statute's text is equally clear in its command that the court 'may not prohibit' the public disclosure of other specific records, namely, the contents of the warrant, the return of the warrant, and the inventory. Nor may the court prohibit public disclosure of the fact that a search warrant affidavit has been filed." Id.

[¶5.] We emphasized that "a court's discretion to 'prohibit public access to information in a court record'" as set forth in SDCL 15-15A-13 is limited by the existence of "sufficient grounds to prohibit access according to applicable constitutional, statutory and common law." Id. ¶ 21, 966 N.W.2d at 584 (quoting SDCL 15-15A-13).^[2] We further noted, under SDCL 15-15A-8, that certain personally identifying information within court records must be redacted as a matter of course.^[3] Id. ¶ 24, 966 N.W.2d at 585. While in Implicated Individual I there was "no redaction question before us[,]" we stated that "[w]e perceive no tension between our rules allowing for the limited redaction of this information to protect individual privacy interests and SDCL 23A-35-4.1's requirement to allow access to the broader 'contents' of a search warrant." Id.

[¶6.] Following our decision in Implicated Individual I, the Press filed with the circuit court a motion to unseal the affidavits and a motion to compel discovery on the status of the State's investigation. The court denied the motion to unseal the affidavits because the State indicated the investigation was ongoing.

[¶7.] The State filed a notice of completed investigation with the circuit court on May 27, 2022, satisfying one of the triggering conditions upon which the circuit court's amended orders required the affidavits to be unsealed. In response, Sanford filed a motion to stay the unsealing of the affidavits. He asserted a number of arguments in support of his claim, including: (1) that the Press was required to file a motion and make a showing supporting the unsealing of the affidavits; (2) that SDCL 23A-35-4.1 unconstitutionally violates rights of victims provided for in Article VI, § 29 of the South Dakota Constitution (Marsy's Law); (3) that the absence of any court discretion under SDCL 23A-35-4.1 to stay the unsealing of the affidavits violated the presumption of innocence afforded to him by the Due Process Clause; (4) that certain comments by the media raised questions whether the State's investigation had been completed; and (5) that Sanford should be provided access to the affidavits and allowed to participate in redaction before they are unsealed. The Press filed another motion to unseal the affidavits, arguing that the court had previously ordered the affidavits to be unsealed upon termination of the investigation while simultaneously arguing the inspection and redaction process proposed by Sanford was unnecessary.

[¶8.] On June 6, 2022, the circuit court denied Sanford's request to inspect the affidavits prior to their unsealing. In a June 16, 2022 order, the circuit court denied the motion to stay the unsealing of the affidavits and reiterated denial of the inspection request, finding that further delay would serve no valid purpose given the two years of litigation and ample opportunity for Sanford to have previously raised these issues.^[4]

[¶9.] In ordering the affidavits to be unsealed, the circuit court concluded that nothing in SDCL 23A-35-4.1, this Court's interpretation of that statute in Implicated Individual I, or the circuit court's amended orders required the Press to make a formal request to unseal the affidavits. The court also rejected the Marsy's Law and Due Process constitutional claims as well as Sanford's argument that there were questions whether the State's investigation had concluded. Finally, the circuit court indicated its intent to redact "personally sensitive or identifying information, which in this case consists of personal email addresses, home addresses, phone numbers, and birth dates." The court noted that Sanford had not cited any authority that would require the court to permit the parties to participate in the redaction process or to extend the scope of redaction beyond personally identifying information in the affidavits.

[¶10.] Sanford raises a single issue on appeal:^[5]

Whether the circuit court erred in denying Sanford's request to inspect the affidavits prior to their unsealing so that he may invoke his rights guaranteed by SDCL 15-15A-13.

Analysis

Standard of review.

[¶11.] "Issues of constitutional and statutory interpretation are . . . subject to de novo review." Thom v Barnett, 2021 S.D. 65, ¶ 13, 967 N.W.2d 261, 267 (citing Jans v. Dep't of Pub. Safety, 2021 S.D. 51, ¶ 10, 964 N.W.2d 749, 753). We also review the interpretation of our own court rules "de novo, utilizing our established rules for statutory construction." Leighton v. Bennett, 2019 S.D. 19, ¶ 7, 926 N.W.2d 465, 467-68. "Our standard of review for issues of statutory interpretation is well established." Stanley v. Dep't of Pub. Safety, 2023 S.D. 13, ¶ 10, N.W.2d, . "'[T]he language expressed in the statute is the paramount consideration' in statutory construction. Further, 'we give words their plain meaning and effect, and read statutes as a whole.' 'When the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court's only function is to declare the meaning of the statute as clearly expressed in the statute.'" Id. (alteration in original) (quoting Ibrahim v. Dep't of Pub. Safety, 2021 S.D. 17, ¶¶ 12-13, 956 N.W.2d 799, 802-03). Likewise, "[t]his [C]ourt assumes that court rules mean what they say[.]" In re Yanni, 2005 S.D. 59, ¶ 8, 697 N.W.2d 394, 398 (quoting State v. Sorensen, 1999 S.D. 84, ¶ 14, 597 N.W.2d 682, 684).

[¶12.] We have not previously addressed our standard of review for a court's consideration under SDCL 15-15A-13 of a "request to prohibit public access to information in a court record . . . ." We conclude that a review under an abuse of discretion standard is appropriate. The circuit court's order responding to Sanford's...