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MERCER: Taking a deeper look at Argus Leader case

PIERRE -- In an opinion issued Sept. 20, 2017, the South Dakota Supreme Court handed citizens a significant victory. The justices, in a 4-1 decision, ruled the presumption of openness should prevail on public records. The Legislature, back in 200...

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PIERRE - In an opinion issued Sept. 20, 2017, the South Dakota Supreme Court handed citizens a significant victory.

The justices, in a 4-1 decision, ruled the presumption of openness should prevail on public records.

The Legislature, back in 2009, purposely placed the presumption of openness at the top of South Dakota's laws regarding public records.

The Sioux Falls Argus Leader achieved this victory for the public. Its lawyer, Jon Arneson, deserves credit.

The Argus Leader had challenged the city government of Sioux Falls over the then-secret settlement regarding the siding on the recently built Premier Center.

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The Supreme Court ruled for the Argus Leader. The city government released the settlement to the newspaper.

The newspaper followed with a public-records request for other settlements. City officials released two.

Justice Glen Severson wrote the majority's opinion in the Premier Center case, overruling the decision by Circuit Judge John Pekas the settlement wasn't open to public inspection.

The first case Justice Severson cited was the South Dakota Supreme Court's decision from 2015 regarding the 2009 public-records law.

That was my case. I went before the five justices and argued the state's attorney general should release the records related to the death of Richard Benda in 2013.

Jeff Hallem, representing the attorney general's office, told the justices their court wasn't the place for my argument.

I wanted the court to overturn the investigation-records exemption in the public-records law. Hallem said I should be talking to the Legislature.

The justices unanimously agreed and rejected my challenge.

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Two years later, a majority on the Supreme Court appeared to have a different view.

South Dakota's public-records laws and the exemptions are complex. I wouldn't dare draw a straight line from my case to the Argus Leader case.

But the context was instructive.

Justice Glen Severson in the majority's opinion said his decision turned on "an ambiguous trailing modifier" in the specific exemption city lawyers cited.

He set aside the city's argument and said his decision favoring the newspaper relied on context, not punctuation.

Severson said the Legislature's requirement that governments should construe the laws "liberally in favor of open, public records" guided the decision.

"There is no question that in this case we are dealing with a record of an expenditure

involving public funds," Severson wrote in his 10-page decision.

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Supporting Severson were Chief Justice David Gilbertson, Justice Janine Kern and retired Justice John Konenkamp.

Justice Steven Zinter stood alone in opposition. He began: "The Court's interpretation of a statute today requires the removal of a comma and the addition of words to the text."

Zinter continued: "The Court states that it is guided by the purpose of a general act rather than the statutory language we must interpret."

He next wrote: "Using an act's general purpose to change text is a breathtaking proposition."

His six-page dissent closed: "The Argus Leader's request to change the punctuation and text of the statute should be made to the Legislature, not the courts."

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