In re In re
| Decision Date | 27 October 2021 |
| Docket Number | #29473 |
| Citation | 966 N.W.2d 578 |
| Parties | In the MATTER OF an APPEAL BY an IMPLICATED INDIVIDUAL. |
| Court | South Dakota Supreme Court |
MARTY J. JACKLEY, STACY R. HEGGE of Gunderson, Palmer, Nelson, & Ashmore, LLP, Pierre, South Dakota, Attorneys for appellant.
JEFFREY R. BECK, Sioux Falls, South Dakota, Attorney for appellee ProPublica.
JON E. ARNESON, Sioux Falls, South Dakota, Attorney for appellee Argus Leader.
[¶1.] A special agent of the South Dakota Division of Criminal Investigation (DCI) sought several search warrants involving the Implicated Individual. The circuit court approved the warrants, which, along with the supporting affidavits and inventories, were filed with the clerk of courts. The circuit court sealed the search warrant files at the agent's request, but later reconsidered its authority to do so after members of the press sought access to the files. The court ultimately ordered the search warrants and corresponding inventories to be unsealed. The Implicated Individual has appealed. We affirm.
[¶2.] On December 9, 2019, a DCI special agent requested a search warrant seeking information relating to an email account associated with the Implicated Individual. The circuit court issued the warrant the same day. On December 16, 2019, the search warrant, the affidavit in support of the search warrant, and the verified inventory were all filed with the Minnehaha County Clerk of Courts.
[¶3.] On March 13, 2020, the DCI agent sought four additional search warrants related to the Implicated Individual, all of which the circuit court issued.1 The additional search warrants, the affidavits supporting the warrants, and the verified inventories were also filed with the Minnehaha County Clerk of Courts. The warrants were to be served upon internet or cellular data providers and were not directed to the Implicated Individual or the Implicated Individual's property. Pursuant to the DCI agent's requests, the court entered separate orders prohibiting disclosure of the fact that the search warrants had been executed. These non-disclosure orders were also filed with the clerk.
[¶4.] For each of the five warrants, the DCI agent submitted an affidavit in support of a request to seal the search warrant affidavit and the search warrant itself. According to the agent, "[p]remature disclosure" of the information "could unnecessarily impede any continuing investigation ...." The circuit court entered orders in the individual search warrant files sealing each of the warrants and their supporting affidavits.
[¶5.] In July 2020, a reporter employed by the news organization ProPublica contacted the Second Circuit Court Administrator requesting access to the sealed search warrant documents involving the Implicated Individual. Learning of this request, the circuit court reflected on its authority to enter the earlier orders to seal. Contrasting a Supreme Court rule governing access to court records with specific statutory limitations on sealing search warrant records, the court emailed general counsel for ProPublica and the South Dakota Attorney General's Office to discuss "the scope of [the court's] authority to seal documents related to a search warrant ...." During the ensuing email exchanges, the court learned that the Implicated Individual was represented by counsel and subsequently provided an opportunity for the Implicated Individual to participate in the court's inquiry.2
[¶6.] In August 2020, a reporter for the Argus Leader, a regional daily newspaper, contacted the circuit court requesting an opportunity to intervene in the proceedings. 3
After conferring with the parties, the court granted the Argus Leader's request and allowed it to present its legal position regarding access to the search warrant documents. Amid these proceedings, the court consolidated the five search warrant files.4
[¶7.] On August 19, 2020, the circuit court issued a protective order prohibiting the Press from disclosing or publicly disseminating "any information that is currently sealed that [it] obtains through its participation in these proceedings." The protective order was "intended to be consistent with previous admonitions to counsel ... to keep this matter confidential until the issues are resolved."
[¶8.] The circuit court established a briefing schedule and identified its principal inquiry as "the scope of [the court's] authority to seal the contents of a search warrant file[.]"5 Following its initial contemplation regarding the topic, the court specifically asked the parties to address the provisions of SDCL chapter 15-15A, which restates Supreme Court Rule 05-05 regarding public access to court records6 and SDCL 23A-35-4.1, which is a specific statute addressing a court's limited authority to seal certain documents associated with a search warrant.
[¶9.] All parties submitted briefs, with the Press submitting jointly. On October 7, 2020, the circuit court heard argument and issued an oral decision that generally favored the Press's request for information. The court determined that SDCL 23A-35-4.1, by its express terms, prohibited a court from sealing the search warrants and verified inventories. And though the statute authorized an order sealing the affidavit in support of a search warrant, the court determined the authority was temporal and ended with the termination of the relevant investigation or the filing of an indictment or information. On this basis, the court issued five amended orders on October 15, requiring that the search warrants and inventories "be unsealed and become publicly accessible court records." The court further ordered that "[f]ollowing termination of the investigation or filing of an indictment, the [supporting affidavits’] contents will [be] unsealed and available to public inspection or disclosure as a publicly accessible court record."
[¶10.] The circuit court determined its amended orders were final because they effectively ended the court's consideration of its authority to seal documents in the five search warrant files.7 However, in the event of an appeal, the court stayed enforcement of the amended orders for 30 days. The court reasoned that "unsealing the attorney correspondence with the court, the briefs, and [its] orders would reveal some information that would remain sealed if the [I]mplicated [I]ndividual were to prevail [on appeal]." Also, as a practical matter, the court recognized that "disclosure cannot be undone and that unsealing the documents would create an argument whether any appeal was moot and at a minimum make any relief obtained by [the Implicated Individual] on appeal less effective."
[¶11.] In an email to the circuit court on November 4, 2020, counsel for the Implicated Individual advised that his client intended to file a notice of appeal and, for the first time, argued the court's decision should be applied prospectively only to "new search warrant materials" filed after the date of the decision. The prospective application issue was not further briefed or addressed by the other parties or the court before the Implicated Individual and the State filed notices of appeal two days later, on November 6.
[¶12.] In separate, identical docketing statements, the Implicated Individual and the State both identified the same challenge to the circuit court's amended orders along with an inquiry as to whether any decision affirming the court should be applied only prospectively. In order to preserve the status quo, we accepted the parties’ stipulation to extend the circuit court's stay during the pendency of this appeal.
[¶13.] The State, acting through the Attorney General's Office, later dismissed its appeal and has elected not to submit a brief in the remaining, current appeal. The State did file a letter with this Court, indicating that its "interests in preserving the integrity of law enforcement investigations have been adequately covered" by the Implicated Individual's brief. The State's letter also mentioned that the State "did not oppose the relief sought" by the Implicated Individual.
[¶14.] The Implicated Individual's appeal presents the following issues for our review:
[¶15.] The principal issue presented here requires us to examine the text of our Supreme Court rules, SDCL 23A-35-4.1 and, to a lesser extent, the South Dakota Constitution. These are purely legal issues of textual interpretation that we review de novo. Expungement of Oliver , 2012 S.D. 9, ¶ 5, 810 N.W.2d 350, 351 (); see also Leighton v. Bennett , 2019 S.D. 19, ¶ 7, 926 N.W.2d 465, 467–68 ().
[¶16.] Resolving an issue of statutory interpretation necessarily begins with an analysis of the statute's text. Long v. State , 2017 S.D. 78, ¶ 12, 904 N.W.2d 358, 363. "When the language in a statute is clear, certain, and unambiguous, there is no reason for construction, and this Court's only function is to declare the meaning of the statute as clearly expressed." Id. ¶ 13, 904 N.W.2d at 364 (quoting Puetz Corp. v. S.D. Dep't of Revenue , 2015 S.D. 82, ¶ 16, 871 N.W.2d 632, 637 ); see also Salzer v. Barff , 2010 S.D. 96, ¶ 5, 792 N.W.2d 177, 179 () (citing Petition of Famous Brands, Inc. , 347 N.W.2d 882, 885 (S.D. 1984) ).
[¶17.] Here, the language of SDCL 23A-35-4.1 is clear...
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