MERCER: Legislature can assist citizens with easier access to court files

• Bob Mercer

Bob Mercer

Talk about it

The Legislature is making progress on three needed improvements to South Dakota’s laws on open meetings and open records, but there is a stalemate regarding records in the state’s circuit courts.

Legislation sponsored by Rep. Burt Tulson, R-Lake Norden, would clarify that government bodies need to post meeting notices for at least 24 hours in places where citizens can actually see them.

A measure brought by Sen. Elizabeth Kraus, R-Rapid City, would make minutes of public meetings available without charge in electronic form, for meetings held in the past three years.

And a third bill introduced by Sen. Al Novstrup, R-Aberdeen, would make clear that the amount of pay and the benefits provided to public employees are information open to public inspection.

Those three measures — House Bill 1131, Senate Bill 75 and Senate Bill 106 — are making their way through process with solid support.

These might not seem earth-shaking, but legislators understand the necessity, because of some public officials who haven’t followed South Dakota’s modern philosophy of open government.

That philosophy, laid down in a 2009 state law by the Legislature, has generally been embraced by the administrations of governors Rounds and Daugaard in the years since then. Unfortunately, that hasn’t been as true for our third branch of government, the Unified Judicial System.

The South Dakota Constitution lays out the bill of rights for people in Article VI. Section 20 of that article specifically addresses the court system.

It says: “All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.

The rub comes over the search fees charged by UJS for state court records. These fees essentially are ransom charged for access to public information.

Here’s why.

South Dakota’s state court system doesn’t maintain a publicly available register of civil and criminal cases.

Consequently a citizen can’t conduct a search in most instances.

An exception is at the Supreme Court level, where UJS has built an impressive Internet site. But even for those cases, there wasn’t a listing open to the public when the cases were in the lower courts.

Search fees are a profit center that produces extra revenue to be spent elsewhere in the court system.

That’s fine if someone wants to pay for the search service. If someone doesn’t want to pay and wants to personally conduct the search, that person is locked out.

There’s no reason in this age of computer technology that the state’s court system can’t make publicly available, on a regularly updated basis, a log of all cases filed.

The information is already in the court system’s data base.

The search fee presently is $15. It would rise to $25 if House Bill 1058 becomes law. The legislation was submitted on behalf of the Supreme Court’s chief justice, David Gilbertson.

UJS wants the additional money to help pay for its continuing upgrade of its data system. Legislators are hearing complaints from people who have to pay the fee, especially those in rental housing management.

Rental applicants routinely have their backgrounds checked, including for publicly subsidized housing, where federal law bars passing along the search fee.

The fee currently doesn’t apply to a person named in the action for which the search is being conducted. That exemption wouldn’t change under the chief justice’s proposal.

Some have suggested that housing applicants and job applicants could use the selfcheck exemption for having the searches conducted. There’s no guarantee however that an applicant would submit a full and accurate set of search results.

Another barrier is the most basic of all. If a citizen wants to see a lawsuit filed between two parties, and the citizen isn’t one of the parties, the citizen must pay the search fee — unless the citizen has a court docket number.

But there’s no way for a citizen to get a docket number from the court system, because the court system doesn’t make publicly available a registry of cases with their docket numbers.

A citizen also must pay the search fee in order to see a court action filed in state courts by or against a government body, whether it’s the city or county or State of South Dakota as one of the parties named in the action.

If the court system charged everyone the search fee, it might be more acceptable. But government agencies generally get a waiver.

We don’t know how many of those searches are conducted, because the court system doesn’t track the number of waivers.

The Senate committee on state affairs decided the situation needs a closer look. There is a strong objection among some legislators against charging any fee that is in excess of the cost of the services performed.

There also are the fundamental issues of open government.

What’s needed in the search-fees legislation is a requirement that the courts offer a registry of all cases that any citizen can see, whether at the courthouse or better yet on the Internet too.

Court records are public records. We heard during testimony at the Senate hearing that the court system receives approximately 300,000 new filings annually.

That is a big number for the court system to track.

Spread across five dozen courthouses and 200-some working days, the total breaks down to a daily average of about two dozen per courthouse, or about three per hour during the business day.

But here’s the point: The courts are tracking those cases now. Citizens should be able to see what has been filed, if they want to look up docket numbers for themselves, rather than pay a $15 or a $25 toll for access to information that citizens, as the taxpayers, are already financially supporting.

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