Leader v. Hagen

• Decision Date: 11 September 2007
• Docket Number: No. 24191.,24191.
• Citation: 739 N.W.2d 475,2007 SD 96
• Parties: Argus LEADER, Plaintiff and Appellant, v. James D. HAGEN, in his official Capacity as Secretary of the South Dakota Department of Tourism and State Development, Defendant and Appellee.
• Court: South Dakota Supreme Court

739 N.W.2d 475

2007 SD 96

Argus LEADER, Plaintiff and Appellant, v. James D. HAGEN, in his official Capacity as Secretary of the South Dakota Department of Tourism and State Development, Defendant and Appellee.

No. 24191.

Supreme Court of South Dakota.

Argued April 23, 2007.

Decided September 11, 2007.

Jon E. Arneson, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.

Neil Fulton, May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for defendant and appellee.

BASTIAN, Circuit Judge.

[¶ 1.] The Sioux Falls Argus Leader newspaper (Argus Leader) sought a writ of mandamus compelling James D. Hagen (Secretary Hagen), then Secretary of Tourism and State Development,¹ to release the invitation list for the 2005 Governor's Invitational Pheasant Hunt (Governor's Hunt). Argus Leader appeals from the decision of the circuit court denying its application for a writ of mandamus. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] The Governor's Office of Economic Development (GOED) is within the South Dakota Department of Tourism and State Development (Department). The purpose of GOED is to "forge a private-public partnership among state government, local communities, higher education, and the private sector to create jobs that create goods and services for use within the state and for export outside the state which results in the creation of new wealth." SDCL 1-52-3.2. GOED is to "seek new employment opportunities, strengthen existing employment opportunities, and spawn new and innovative economic development opportunities[.]" SDCL 1-52-3.3.

[¶ 3.] Department and GOED annually conduct the Governor's Hunt to showcase the state to businesses and entrepreneurs with the potential to locate new businesses within the state or expand existing businesses within or into the state. The Governor's Hunt is hosted by the Governor and funded by donations of sponsoring individuals and businesses; taxpayer funds are not used. GOED works with the Office of the Governor to formulate the invitation list. According to the Secretary's affidavit, the invitees include targeted business prospects and individuals in the business community who can facilitate the expansion or introduction of business in the state. The list of business prospects invited to the Governor's Hunt is used by GOED in an ongoing deliberative manner for further communication and business development.

[¶ 4.] On December 30, 2005, Argus Leader filed an application for an alternative writ of mandamus in the Sixth Judicial Circuit seeking access to the invitation list for the 2005 Governor's Hunt. A hearing was held by the circuit court on March 6, 2006. The evidentiary record consists of the Secretary's affidavit and exhibits submitted by Argus Leader.

[¶ 5.] The circuit court issued its memorandum decision denying Argus Leader's application for a writ of mandamus on April 21, 2006, and subsequently entered findings of fact and conclusions of law. The circuit court concluded that Secretary Hagen was given discretion not to release the invitation list to the public under agency specific statutes. The court further held that the general public records statute, SDCL 1-27-1, did not require Secretary Hagen to keep the invitation list available and open for inspection because no statute mandates its retention. The circuit court did not address Secretary Hagen's claim of executive privilege.

[¶ 6.] Argus Leader appeals claiming that the invitation list is a public record open to inspection under SDCL 1-27-1 and SDCL 1-26-2. Further, it argues that the agency specific statutes, SDCL 1-33-19.2 and SDCL 1-52-3.4, do not give the Secretary discretion to refuse to allow public inspection. It also asserts that executive privilege does not apply to the invitation list.

STANDARD OF REVIEW

[¶ 7.] The standard of review for the grant or denial of a writ of mandamus is abuse of discretion. Schafer v. Deuel County Bd. of Com'rs, 2006 SD 106, ¶ 4, 725 N.W.2d 241, 243 (citing Atkinson v. City of Pierre, 2005 SD 114, ¶ 10, 706 N.W.2d 791, 795; Lang v. Western Providers Physician Organization, 2004 SD 107, ¶ 7, 688 N.W.2d 403, 405; Black Hills Central RR Co. v. Hill City, 2003 SD 152, ¶ 9, 674 N.W.2d 31, 34). "`An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.'" Schafer, 2006 SD 106, ¶ 4, 725 N.W.2d at 243 (quoting Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 N.W.2d 265, 270 (other citations omitted)). In applying this standard, this Court does not determine whether it would make a like decision, but rather whether a judicial mind, considering the law and the facts, could have reached a similar decision. Id. Questions of statutory interpretation and application are reviewed under the de novo standard of review with no deference to the circuit court's decision. Schafer, 2006 SD 106, ¶ 5, 725 N.W.2d at 243 (citing Lewis & Clark Rural Water Sys., Inc. v. Seeba, 2006 SD 7, ¶ 12, 709 N.W.2d 824, 830 (other citations omitted)).

ANALYSIS AND DECISION

ISSUE

[¶ 8.] Whether the circuit court abused its discretion in denying the writ of mandamus.

[¶ 9.] "`[A] writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear[.]'" Wagner v. Wagner, 2006 SD 31, ¶ 10, 712 N.W.2d 653, 657 (quoting Baker, 2001 SD 49, ¶ 16, 625 N.W.2d at 271) (alteration in original). "`To prevail in seeking a Writ of Mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.'" Wagner, 2006 SD 31, ¶ 10, 712 N.W.2d at 657 (emphasis omitted) (quoting Baker, 2001 SD 49, ¶ 16, 625 N.W.2d at 271 (citing Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242)).

Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right.

Jensen v. Lincoln Co. Bd. of Com'rs, 2006 SD 61, ¶ 10, 718 N.W.2d 606, 610 (quoting Sorrels, 1998 SD 12, ¶ 6, 575 N.W.2d at 242). "[M]andamus is appropriate only when the duty to act is unequivocal." Jensen, 2006 SD 61, ¶ 10, 718 N.W.2d at 610. Therefore, this Court must determine whether the Secretary has a clear and unequivocal duty to allow public inspection of the invitation list for the Governor's Hunt.

A. SDCL 1-27-1

[¶ 10.] Argus Leader asserts that the invitation list is a public record which is open to inspection under SDCL 1-27-1. It cites to SDCL 1-27-9(2) and (4)(a) for a definition of a state agency record.² It argues that the Governor's Hunt is an official government function and the invitation list is used in conducting the Governor's Hunt. It claims that the invitation list falls within the definition of a public agency record.

[¶ 11.] SDCL ch 1-27 pertains generally to public records and files. SDCL 1-27-1 provides, in relevant part:

If the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state, the officer or public servant shall keep the record, document, or other instrument available and open to inspection by any person during normal business hours. Any employment examination or performance appraisal record maintained by the Bureau of Personnel is excluded from this requirement.

[¶ 12.] "Interpreting statutes according to their plain language is a primary rule of statutory construction." State v. Young, 2001 SD 76, ¶ 6, 630 N.W.2d 85, 87 (citing Nickerson v. American States Ins., 2000 SD 121, ¶ 11, 616 N.W.2d 468, 470). SDCL 1-27-1 provides that a document is open to public inspection "[i]f the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state[.]"

[¶ 13.] The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Benson v. State of SD, 2006 SD 8, ¶ 71, 710 N.W.2d 131, 158 (quoting Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). Words and phrases in a statute must be given their plain meaning and effect. Id. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. Id.

[¶ 14.] The language of SDCL 1-27-1 is clear and unambiguous. Argus Leader is correct that there is a presumption of openness under SDCL 1-27-1, but only if the record or document is required by statute to be kept or maintained. Argus Leader's expansive interpretation of SDCL 1-27-1 would make every document generated by or in the possession of government a public record with the accompanying requirement that it be maintained. This would include such things as ephemeral notes and phone messages.

[¶ 15.] "In construing a statute, we presume `that the legislature did not intend an absurd or unreasonable result' from the application of the statute." State v. Wilson, 2004 SD 33, ¶ 9, 678 N.W.2d 176, 180 (quoting State v. I-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290) (citing Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611)). Argus Leader dismisses this argument by maintaining that "[r]easonableness in the form of `common sense, democratic philosophy, constitutional principles and legislative reality'" tempers its position. This Court, however, must apply the language of the statutes as enacted by the legislature. SDCL 1-27-1 requires open inspection of any record required by statute to be maintained. Argus Leader concedes that there is no statutory requirement for Secretary Hagen to maintain a list of invitees to the Governor's Hunt. The legislature has shown an ability...