SD Citizens for Liberty, Inc. v. Rapid City Area Sch. Dist. 51-4
| Docket Number | 29929-MES |
| Decision Date | 01 November 2023 |
| Parties | SD CITIZENS FOR LIBERTY, INC., TONI E. WEAVER, MARCY M. MORRISON, BRIAN T. LARSON, and SAMANTHA C. MCCULLY, Plaintiffs and Appellants, v. RAPID CITY AREA SCHOOL DISTRICT 51-4, Defendant and Appellee. |
| Court | South Dakota Supreme Court |
1
2023 S.D. 57
SD CITIZENS FOR LIBERTY, INC., TONI E. WEAVER, MARCY M. MORRISON, BRIAN T. LARSON, and SAMANTHA C. MCCULLY, Plaintiffs and Appellants,
v.
RAPID CITY AREA SCHOOL DISTRICT 51-4, Defendant and Appellee.
No. 29929-MES
Supreme Court of South Dakota
November 1, 2023
Argued November 8, 2022
Supplemental Briefs Received September 11, 2023
Appeal from the Circuit Court of the Seventh Judicial Circuit Pennington County, South Dakota the Honorable Craig A. Pfeifle Judge
Kenneth E. Jasper Rapid City, South Dakota Attorney for plaintiffs and appellants.
Emily M. Smoragiewicz Kelsey B. Parker of Bangs, McCullen, Butler, Foye & Simmons, LLP Rapid City, South Dakota Attorneys for defendant and appellee.
SALTER, JUSTICE
[¶1.] An organized citizens group, along with several individuals, commenced an action against Rapid City Area School District 51-4 (RCAS) seeking a declaration that RCAS was acting contrary to South Dakota's open meeting law by not allowing public comment at some of its board meetings. After a hearing on the parties' cross-motions for summary judgment, the circuit court ruled in favor of RCAS and denied the group's summary judgment motion. The court also determined that it could not review a determination made by a state's attorney concerning an alleged violation of a separate open meeting statute. We vacate the portion of the court's decision concerning public comment and affirm the court's decision to not review the state's attorney's determination.
Factual and Procedural History
[¶2.] RCAS is organized as a school corporation under SDCL chapter 13-5 and is governed by the Rapid City Area School Board of Education (the Board). See SDCL 13-5-1 (defining school districts); SDCL 13-8-1 (defining school board). In addition to broad statutory authority to operate and administer the schools in their districts, see SDCL 13-8-39, school boards provide "educational opportunities and services for all citizens residing within the school district," SDCL 13-8-1. The Board serves about 13,000 students and employs around 1,800 community members.
[¶3.] The Board has identified three types of meetings through which it exercises governance-annual meetings, regular meetings, and special meetings. The first among them-annual meetings-are mandated for all school boards by SDCL 13-8-10. The statute requires school boards to consider several broad types of
administrative matters at its annual meeting, such as electing officers, selecting depository institutions and account custodians, and designating a legal newspaper. SDCL 13-8-10.
[¶4.] School boards may also use the annual meeting to designate the time for their regular meetings which otherwise must be held "on the second Monday of each month." SDCL 13-8-10. For RCAS, the Board usually schedules two regular meetings each month on the second and fourth Mondays.[1] According to RCAS, the Board conducts its official business at these regular meetings.
[¶5.] The Board also holds special meetings with recurring frequency. Special meetings are not required for school boards, but they "may be held upon call of the president or in the president's absence by the vice-president, or a majority of the board members." Id. The Board generally convenes monthly special meetings that are self-styled as study sessions and Board retreats.[2]
[¶6.] As the name suggests, the study sessions allow the Board to study and discuss topics before taking official action on them at a regular meeting. The Board cited, as an example, a particular study session which covered the "10-point grading scale, Title VI - Office of Indian Education, RCAS Consulting Agreement with [American Gulf International], and the RCAS Academies and Pathways."
[¶7.] In a similar way, RCAS explains that the Board retreats give members the "opportunity . . . to meet and discuss the Board's current and future work at the District - including planning what matters will be coming before the Board at regular meetings, what presentations are necessary for the Board's consideration and the public's interest, and to communicate with District Administration about updates, questions, and concerns." At times, the Board holds retreats outside RCAS's boundaries, including locations in Custer State Park and in Deadwood.
[¶8.] School districts, like RCAS, are considered political subdivisions and public bodies under SDCL 1-25-12(1) to (2), making them subject to SDCL 1-25-1, commonly known as South Dakota's open meeting law. The statute provides that "[t]he official meetings of the state and its political subdivisions are open to the public unless a specific law is cited by the state or the political subdivision to close the official meeting to the public." SDCL 1-25-1. An official meeting, in turn, is any meeting at which a quorum of the public body is present and where "official business or public policy of that public body is discussed or decided[.]" SDCL 1-25-12(3).
[¶9.] This appeal was originally presented as a controversy involving the interpretation of the then-existing version of SDCL 1-25-1 (2019) that related to public comment at official meetings:
The public body shall reserve at every regularly scheduled official meeting a period for public comment limited at the body's discretion, but not so limited as to provide for no public comment. At a minimum, public comment shall be allowed at regularly scheduled official meetings which are designated as regular meetings by statute, rule, or ordinance.
(Emphasis added.)
[¶10.] Along with provisions of state law, the Board is governed by its own district policies, one of which is entitled Public Participation at Board Meetings, and states:
All regular and special meetings of the [B]oard will be open to the public. At meetings a specific time period will be designated as "Open Forum." A time limit may be set both for individual speakers and for the length of the Open Forum time period. . . . Public comments and questions at Open Forum may deal with any topic related to public education. Public comments on agenda items will be encouraged by the [B]oard president. Comments at special meetings must be related to the subject of the meeting.
[¶11.] The Board reserves what the parties refer to as an "open forum" period for public comment at its regular meetings held twice each month. But the Board has not always done so for its special meetings.
[¶12.] From July 2018 through April 2020, the Board included an open forum period at all special meetings designated as study sessions, though it did not allow open forum at special meetings designated as retreats. However, on April 13, 2020, the Board did not allow for an open forum period at a special meeting study session. This practice became more frequent with the election of a new Board president, and between July 27, 2020, and June 28, 2021, public comment was not permitted at twenty-two out of twenty-four special meetings.
[¶13.] This action arose as an effort to use the declaratory judgment remedy to determine whether RCAS has a statutory obligation to afford an opportunity for public comment at its special meetings. The plaintiffs are S.D. Citizens for Liberty
(CLF), Inc., Tonchi Weaver, Samantha C. McCully, Marcy M. Morrison, and Brian T. Larson (collectively, Citizens).[3]
[¶14.] In a separate, but somewhat related, development, Weaver alleged a criminal open meeting law violation against the Board in November 2020. According to Weaver, the Board had convened in executive session during a November 12, 2020 study-session special meeting to screen eleven applicants for a vacant Board seat.[4] Weaver alleged the Board had taken official action by selecting the new member during its executive session without reconvening and acting to appoint the new member during an open meeting. As evidence, Weaver pointed to letters-issued by the Board after the executive session but before official action at an open meeting-advising unsuccessful applicants that another person had been appointed.
[¶15.] Pennington County State's Attorney Mark Vargo investigated Weaver's allegations but did not find evidence of a statutory violation. In a February 2021 letter to Weaver, Vargo stated that any vote taken on November 12
was a "'straw poll' or informal vote" and that the vacant Board seat was filled through a vote that occurred during an open meeting on November 16. Additionally, Vargo determined that sending letters to the other applicants was a "courtesy" not an "official action" because, at that point, the "ultimate vote had not occurred, and the outcome could still change." Until the initiation of this suit, more than four months later, Weaver pursued no further action on the matter.
[¶16.] The question of whether public comment was permitted at special meetings lingered and was a source of discussion at Board meetings in the following months. During a June 2, 2021 study session, a Board member successfully sought, over opposition, to add a period of public comment to the agenda, arguing there was no real distinction between regular and special meetings, given the frequency of the latter.
[¶17.] Several weeks later, Citizens commenced this action against RCAS, requesting one principal type of declaratory relief: a declaration regarding the correct interpretation of the term "regularly scheduled official meeting," which, at the time, triggered SDCL 1-25-1's public comment requirement. In Citizens' view, the term described any official meeting for which notice was provided under SDCL 1-25-1.1, no matter how the meeting is denominated by the Board.
[¶18.] In its answer, RCAS denied that SDCL 1-25-1 required the Board to allow public comment at its special meetings. In so doing, RCAS equated the term "regularly scheduled official meeting"-for which SDCL 1-25-1 required public comment-with the term "regular...
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